Exhibit 4.1
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LEASE AGREEMENT
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DATE: MARCH 27, 2001
LANDLORD: MITEL RESEARCH PARK CORPORATION
TENANT: MITEL CORPORATION
PREMISES: Xxxxx 0, Xxxxx X
Xxxxx 0, Xxxxxx, Xxxxxxxxx and Second Floor
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INDEX
Article 1 DEFINITIONS.............................................................................................1
1.1. In this Lease,........................................................................................1
Article 2 DEMISE, DELIVERY AND SURRENDER..........................................................................6
2.1. Demise and Leased Premises............................................................................6
2.2. Shared Areas and Facilities...........................................................................7
2.3. Examination of Leased Premises........................................................................7
2.4. Separation of Leased Premises, Condition and Relocation...............................................7
2.5. Installation and Removal of Trade Fixtures............................................................8
2.6. Overholding by Tenant.................................................................................9
Article 3 RENTAL..................................................................................................9
3.1. Basic Rent............................................................................................9
3.2. Payment of Additional Rent for Complex Operating Costs................................................9
3.3. Annual Estimation of the Complex Operating Costs......................................................9
3.4. Annual Adjustment of Basic Rent Based Upon the Actual Complex Operating Costs.........................9
3.5. Rent Covenant........................................................................................10
3.6. Waiver of Set-Off....................................................................................10
3.7. Interest on Overdue Rent.............................................................................10
3.8. Net Lease............................................................................................10
Article 4 OTHER AMOUNTS TO BE PAID BY TENANT.....................................................................11
4.1. Business Taxes, GST and Other Taxes..................................................................11
4.2. Third Party Services.................................................................................11
4.3. Additional Services of the Landlord..................................................................11
4.4. Upgrading Building Systems...........................................................................11
4.5. Leased Premises Heating, Ventilating and Air Conditioning Systems....................................11
Article 5 OPERATION OF COMPLEX...................................................................................12
5.1. Utility Services.....................................................................................12
5.2. Taxes................................................................................................12
5.3. Building and Pedestal Signage........................................................................12
Article 6 INSURANCE AND INDEMNITY................................................................................13
6.1. Landlord's Insurance.................................................................................13
6.2. Tenant's Insurance...................................................................................14
6.3. Premium Increases and Cancellation...................................................................15
6.4. Compliance with Landlord's Insurance Requirements....................................................15
6.5. Limitation of Landlord's Liability...................................................................16
6.6. Indemnity by Tenant..................................................................................16
6.7. Limitation of Tenant's Liability.....................................................................17
Article 7 REPAIRS AND ALTERATIONS................................................................................17
7.1. Tenant's Repairs.....................................................................................17
7.2. Tenant to Notify of Defects..........................................................................17
7.3. Tenant Work..........................................................................................17
7.4. Construction or Mechanic's Lien......................................................................19
7.5. No Interference with Tenant's Operations.............................................................19
7.6. Installation of Meters...............................................................................20
7.7. Repair Where Tenant at Fault.........................................................................20
7.8. Repairs by Landlord..................................................................................20
7.9. Door Locks...........................................................................................20
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Article 8 DAMAGE OR DESTRUCTION..................................................................................21
8.1. Right to Terminate...................................................................................21
8.2. Repair and Rebuilding................................................................................21
8.3. Abatement of Rent....................................................................................21
8.4. Certificate of Architect Binding.....................................................................22
Article 9 LANDLORD'S COVENANTS...................................................................................22
9.1. Landlord's Covenant for Quiet Enjoyment..............................................................22
Article 10 TITLE OF COMPLEX......................................................................................22
10.1. Subordination.....................................................................................22
10.2. Attornment........................................................................................22
10.3. Status of Lease Statement.........................................................................23
10.4. Registration of Lease Prohibited..................................................................23
Article 11 USE OF LEASED PREMISES................................................................................23
11.1. Type of Business Permitted........................................................................23
11.2. Compliance With Applicable Laws and Government Requirements.......................................23
11.3. Waste/Nuisance....................................................................................23
11.4. Rules and Regulations.............................................................................24
11.5. Environment.......................................................................................24
Article 12 ASSIGNMENT AND SUB-LETTING............................................................................25
12.1. Assignment by Landlord............................................................................25
12.2. Assignment and Subletting by Tenant...............................................................25
12.3. Request to Assign or Sublet.......................................................................26
12.4. Assignment or Sublet Agreement....................................................................26
12.5. Changes in Corporate Control......................................................................26
Article 13 DEFAULT OF TENANT.....................................................................................27
13.1. Landlord's Right of Re-Entry......................................................................27
13.2. Bankruptcy of Tenant and Other Events of Default..................................................27
13.3. Excuse of Performance.............................................................................28
13.4. Cross - Default...................................................................................28
Article 14 LANDLORD'S RIGHT OF ACCESS............................................................................28
14.1. Right of Access and Method of Re-Entry............................................................28
14.2. Building Systems..................................................................................29
14.3. Obligations of Tenant and Landlord................................................................29
Article 15 SHARED AREAS AND FACILITIES...........................................................................29
15.1. Non-Exclusive Right to Use Shared Areas and Facilities............................................29
15.2. Alterations to Shared Areas and Facilities........................................................29
Article 16 INTERPRETATION AND MISCELLANEOUS......................................................................30
16.1. No Partnership....................................................................................30
16.2. Agency............................................................................................30
16.3. Lease is Entire Agreement.........................................................................30
16.4. Joint and Several Liability.......................................................................30
16.5. Governing Law.....................................................................................30
16.6. Interpretation....................................................................................31
16.7. Successors and Assigns............................................................................31
16.8. Reasonableness....................................................................................31
16.9. Counterparts and Facsimile........................................................................31
Article 17 SPECIAL PROVISIONS....................................................................................32
17.1. Exercise of Rights by Landlord....................................................................32
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17.2. Parking...........................................................................................32
17.3. Security..........................................................................................32
17.4. Cleaning/Janitorial Services/Garbage Removal......................................................32
17.5. Emergency Response Team...........................................................................32
SCHEDULE "A-1" LEGAL DESCRIPTION OF THE LAND
SCHEDULE "A-2" LEGAL DESCRIPTION OF THE PHASE V LANDS
SCHEDULE "B-1" SITE PLAN SHOWING THE LANDS
SCHEDULE "B-2" SITE PLAN SHOWING THE PHASE V LANDS
SCHEDULE "C" LEASED PREMISES SHOWN BY CROSS-HATCHING
SCHEDULE "D" RULES AND REGULATIONS
SCHEDULE "E" REPAIR OBLIGATIONS IN RESPECT OF THE REMOVAL OF
TENANT TRADE FIXTURES [NTD: TO BE REVIEWED AND
CONFIRMED]
SCHEDULE "F" CONSENT BY LANDLORD TO SUBLEASE
SCHEDULE "C" TENANT SIGNAGE
THIS LEASE made the 27'" day of March, 2001
BETWEEN:
MITEL RESEARCH PARK CORPORATION
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(hereinafter called the " Landlord ")
AND:
MITEL CORPORATION
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(hereinafter called the "Tenant")
WHEREAS:
A. The parties have entered into an Acquisition Agreement which
contemplates this Lease.
NOW THEREFORE this indenture witnesses that for good and valuable
consideration, the receipt and sufficiency of which is expressly acknowledged,
the parties covenant and agree as follows:
ARTICLE 1
DEFINITIONS
1.1. In this Lease,
"Accounting Period" means the twelve (12) month accounting period adopted
by the Landlord from time to time for the Complex which is as of the date of
this Lease based on a calendar year.
"Additional Rent" means all amounts payable by the Tenant under this Lease
other than Basic Rent, whether or not characterised as rent under this Lease.
"Amortization" means, for each Accounting Period, the annual amortization
of the Landlord's capitalized cost of replacements and repairs to the Complex
(in each case over such asset, repair or replacement's (as the case may be)
useful life) which are not expensed during such Accounting Period in accordance
generally accepted accounting principles, together with simple interest on the
unamortized portion of such costs, such interest to be calculated each month at
a rate consistent with the Landlord's standard amortization practices.
"Applicable Laws" means all statutes, laws, by-laws, regulations,
ordinances and requirements having the force of law of governmental or other
public authorities having jurisdiction over the Complex, and all amendments
thereto at any time and from time to time in force which are applicable in the
circumstances.
"Architect" means an independent, duly qualified architect named by the
Landlord from time to time under the provisions of this Lease.
"Acquisition Agreement" means the Acquisition Agreement between the
Tenant, 3755461 Canada Inc. and Xx. Xxxxxxx X. Xxxxxxxx made as of January 2,
2001.
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"Basic Rent" means for each Accounting Period during the Term, the sum
total of (i) the Rental Rate (Office) multiplied by the Floor Area of the Office
Areas of the Leased Premises: and (ii) the Rental Rate (Non-Office) multiplied
by the Floor Area of the Non-Office Areas of the Leased Premises.
"Business" shall have the same meaning as in the Acquisition Agreement but
restricted to the activities carried on, in or about the Complex;
"Commencement Date" means March 27, 2001.
"Common Facilities" means those parts of the Complex together with all
facilities from time to time provided by the Landlord near the Complex to serve
the occupants of the Complex, including as applicable, without limitation, the
Shared Areas and Facilities, exterior weather walls and facade, roofs, exterior
and interior structural elements and bearing walls of the Complex, music and
public address systems, first aid stations, property management offices related
to the Complex, fire prevention and fire detection systems, plumbing, heating,
ventilation, humidification, air-conditioning and drainage equipment and
installations, fountains, furniture, furnishings, directory boards, general
signs including pylon signs, maintenance equipment, service, janitorial and
mechanical rooms, transformer vaults, electrical distribution rooms and water
meter rooms.
"Complex" means the Lands, the integrated buildings and improvements
erected thereon and the Common Facilities, as may be varied from time to time,
located at municipal address 340, 350 and 000 Xxxxxxx Xxxxx, and 000 Xxxxx Xxxx,
all being in the City Ottawa (formerly, the City of Kanata), Ontario.
"Complex Mortgage Financing" means the first mortgage financing for the
purchase of the Complex.
"Complex Operating Costs" means, for each Accounting Period, the total
cost to the Landlord, calculated in accordance with generally accepted
accounting principles for operating and insuring the Complex, and maintaining,
repairing, replacing, refurbishing and furnishing the Common Facilities for such
Accounting Period, including the Amortization of costs and expenses of a capital
nature, costs of electricity, fuel, gas, steam, water, sewage, and other utility
costs and consumptions for the Complex, but excluding all costs with respect to
Leasable Areas of the Complex of a character for which the Tenant is billed
directly for the Leased Premises (such as, by way of example, but without
limiting the generality of the foregoing, costs charged directly to the Tenant
(rather than being included in Complex Operating Costs and payable as Basic
Rent) pursuant to sections 4.3 (Additional Services of the Landlord), 4.4
(Upgrading Building Systems), 5.1 (Utility Services) and 6.3 (Premium Increases
and Cancellation). Complex Operating Costs shall include, without duplication or
limitation, the Landlord's costs for Taxes assessed against the Complex and
contract administration costs incurred in connection with the Complex, building
management fees or an administrative fee (not exceeding the going rate charged
by trust companies or first class building management companies for building
management in the City of Ottawa for similar buildings); the cost of service
contracts with independent contractors and the Landlord's costs for cleaning,
painting, controlling pests, supervising, policing, gardening, landscaping,
striping, snow removal, electricity, water, heating, ventilation,
humidification, air conditioning, materials, supplies, equipment rental, wages,
salaries and benefits paid and provided for employees to the extent they are
directly involved
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with the maintenance, operation and repair of the Common Facilities,
maintenance, repairs, replacements, and all other expenditures of a nature
required to be made by a prudent owner. Complex Operating Costs shall exclude
fees, costs or commissions incurred in leasing the Complex and the cost of
installing, operating and maintaining any specialty service for which the Tenant
does not enjoy equal benefit with the other occupants of the Complex, such as by
way of example, a daycare, athletic or recreation club.
"Environment" means all, or any part, of the air, water and soils in or on
the Complex.
"Environmental Law" has the meaning set out in the Acquisition Agreement.
"Environmental Losses" means all fines, penalties, costs, losses, damages,
expenses or liabilities (including reasonable legal and other professional
expenses) resulting from any failure to comply with any Environmental Law.
"Floor Area of the Leased Premises" means, by agreement of the parties,
111,645 square feet, being comprised of approximately 50,677 square feet of
Office Area and approximately 60,968 square feet of Non-Office.
"Gross Building Area" means the aggregate area of all floors of all
buildings in the Complex (excluding for this purpose the building on the Phase V
Lands until the Rent Commencement Date as such term is defined in the lease of
even date between the Landlord and the Tenant for the building to be constructed
on the Phase V Lands) as measured by the Landlord using its standard measurement
methodology, which area is as at the Commencement Date, comprised of
approximately 624,035 square feet, subject to adjustment based on increases or
decreases in the areas of the buildings comprising the Complex.
"Hazardous Substance" means any material or substance that may impair the
quality of the Environment and as to which liabilities or standards of conduct
are imposed pursuant to Environmental Laws, including any material or substance
that is deemed pursuant to any Environmental Law to be "hazardous", "toxic",
"deleterious", "caustic", "dangerous", a "contaminant", a "pollutant",
"dangerous", "toxic", a "hazardous waste", or a "source of contamination".
"Lands" means the lands more particularly described in Schedule "A-1" and
shown in heavy black outline on Schedule "B-1", together with any additions
thereto or subtractions therefrom as may be designated from time to time by the
Landlord in its sole discretion for use in connection with the Complex. If at
any time during the Term, the Landlord sells, transfers or otherwise assigns its
interest in the Phase V Lands, or if the Mortgagee enforces its Mortgage and
forecloses the Landlord's interest in the Phase V Lands or sells, transfers or
otherwise assigns its interest in the Phase V Lands, "Lands" as defined herein
shall thereafter be deemed to exclude Phase V Lands.
"Landlord" means Mitel Research Park Corporation and its respective
successors and assigns.
"Landlord's Address" means 000 Xxxxxxx Xxxxx, Xxxxx X, Xxxxx 000, Xxxxxx,
Xxxxxxx, Xxxxxx,X0X 0X0, to the attention of: Treasurer.
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"Lateral Supporting Building Infrastructure" means that production support
infrastructure (including water, drain, electrical, vacuum, bulk gases, and
exhaust) not specific to any one part of the Production Equipment, but at the
next hierarchy above, supporting multiple parts of Production Equipment.
"Lease" means this lease as from time to time amended in writing and
includes all schedules hereto.
"Leasable Areas of the Complex" means that part of the Complex not forming
part of the Common Facilities.
"Leasehold Improvements" means all improvements, installations,
alterations and additions made from time to time to the Leased Premises on or
after the Commencement Date, including without limitation, all fixed partitions,
light fixtures, and all items which cannot be removed without material damage to
the Leased Premises, and including trade fixtures installed by or for the
benefit of the Tenant, which trade fixtures include, without limitation, the
Production Equipment to the extent any such equipment is affixed to the Leased
Premises so as to lose its characterization as a chattel.
"Leased Premises" means those premises forming part of the Complex, which
premises are shown by cross-hatching outline on Schedule "C" hereto and are more
particularly shown and described on the set of plans showing the Leased Premises
"as-built" as of the Commencement Date, initialed by the Landlord and the Tenant
for identification purposes and to be delivered by the Tenant to the Landlord on
the Commencement Date.
"Mortgage" means any mortgage, hypothec, charge (including a deed of trust
and mortgage securing bonds and all indentures supplemental thereto), lien
(resulting from any other method of financing or refinancing), or blanket
mortgage (affecting the Complex as well as other property) now or hereafter
secured upon the Lands and the Complex or any part thereof and includes all
renewals, modifications, consolidations, replacements and extensions thereof.
"Mortgagee" means the holder of any Mortgage.
"Non-Office Areas of the Leased Premises" means those areas of the Leased
Premises not used by the Tenant for office purposes and which, by agreement of
the parties, are deemed to comprise 60,968 square feet. The Non-Office Areas of
the Leased Premises are highlighted on the floor plans of the Leased Premises
attached as Schedule "C" hereto.
"Notice" means `any notice, statement or request herein required or
permitted to be given by either party to the other pursuant to this Lease and
shall be in writing and, if to the Landlord, addressed to the Landlord at the
Landlord's Address and, if to the Tenant, addressed to the Tenant at the
Tenant's Address. Each notice shall be either hand delivered, sent by confirmed
facsimile transmission, or mailed by registered post (return receipt requested)
and the date of receipt of such notice shall be deemed to be the date of such
hand delivery, the next business day if sent by confirmed facsimile transmission
or the day of return receipt,
"Office Areas of the Leased Premises" means those areas of the Leased
Premises to be used by the Tenant for office purposes and which, by agreement of
the parties, are deemed to
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comprise 50,677 square feet. The Office Areas of the Leased Premises are
highlighted on the floor plans of the Leased Premises attached as Schedule "C"
hereto.
"Permitted Use" means the use of the Leased Premises, only for the
purposes of offices, warehousing, production, and related uses to carry on the
Business in substantially the same manner as that carried on by the Tenant
immediately prior to the Commencement Date.
"Phase V Lands" means the Lands more particularly described in Schedule
"A-2" and shown in heavy outline on Schedule "B-2" together with any additions
thereto or subtractions therefrom as may be designated from time to time by the
Landlord in its sole discretion for use in connection with the Leased Premises.
"Production Equipment" means process equipment used specifically for the
purposes of production, including but not limited to supporting peripheral
equipment (including but not limited to vacuum pumps, gas cabinets, local
chillers, local power shut-off panels, local scrubbers, local sump pumps) and
local supporting infrastructure (including but not limited to electric, plumbed,
ducted connections between main tool and peripheral equipment, or between such
process equipment and Lateral Supporting Building Infrastructure (including but
not limited to water, drain, electrical, vacuum, bulk gases, bottled gases, and
exhaust)).
"Rent" means Basic Rent and Additional Rent.
"Rules and Regulations" means those rules and regulations stipulated in
Section 11.4 hereof and any further reasonable rules and regulations of which
the Tenant receives written notification from the Landlord which the Landlord
acting reasonably may from time to time stipulate for the proper operation of
the Complex, and all such further rules and regulations shall be read as forming
part of this Lease as if the same were embodied herein.
"Shared Areas and Facilities" means those parts of the Common Facilities
which are provided by the Landlord for the common use and enjoyment or benefit
of the Tenant, the Landlord and other occupants of the Complex, and their
respective employees, contractors, agents and invitees including, without
limitation, any recreational areas, landscaped areas, parking areas, public
transit shelters, roadways, driveways, walkways, sidewalks, skywalks, tunnels,
lobbies, entrances, exits, common corridors, halls, stairways and passageways,
public lavatories, truck courts, truck docks, common loading areas and
elevators, and shall be deemed to include any pedestrian walkways, parks or
other facilities located on the Lands.
"Stipulated Rate of Interest" means the standard rate of interest charged
or imputed by the Landlord, acting reasonably, in respect of the operation of
the Complex, as adjusted from time to time.
"Taxes" means, for each Accounting Period, the amount paid by the Landlord
for all taxes, rates, duties and assessments whatsoever, whether municipal,
provincial, parliamentary or otherwise, now charged or hereafter to be charged
upon the Complex or upon the Landlord in respect thereof for such Accounting
Period. The total of such costs to the Landlord shall include, without
duplication or limitation, school taxes, municipal taxes and taxes for local
improvements or works assessed against the Complex and any costs and fees
reasonably incurred by the Landlord in reasonably contesting or negotiating with
the public authorities as to the same. Taxes shall not include capital taxes or
large corporations taxes or any other taxes based upon or
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computed with reference to the Landlord's paid-up capital or place of business,
income taxes of the Landlord to the extent such income taxes are not levied in
lieu of taxes, rates, duties and assessments against the Complex.
"Tenant" means Mitel Corporation and its successors and permitted assigns.
"Tenant's Address" means 000 Xxxxx Xxxx, Xxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0
to the attention of (i) Manager of Facilities Engineering and Real Estate; and
(ii) General Counsel.
"Tenant's Share" means the share allocated or re-allocated by the Landlord
to the Tenant pursuant to section 3.2, and with respect to those component costs
of the Complex Operating Costs for which no such allocation or re-allocation is
so made by the Landlord, a fraction which has as its numerator the Floor Area of
the Leased Premises and which has as its denominator the Gross Building Area.
"Term" means ten (10) years, commencing on the Commencement Date.
"Termination Date" means, the last day of the Term or such earlier date as
this Lease may be terminated pursuant to the provisions hereof.
"Unavoidable Delay" means any delay by a party in the performance of its
obligations under this Lease caused in whole or in part by any acts of God,
strikes, lockouts or other industrial disturbances, acts of the Queen's enemies,
sabotage, war, blockades, insurrections, riots, epidemics, washouts, nuclear and
radiation activity or fallout, arrests, restraints of rulers and people, civil
disturbances, explosions, breakage of or accident to machinery, any legislative,
administrative or judicial action which has been resisted in good faith by all
reasonable legal means, any act, omission or event whether of the kind herein
enumerated or otherwise not within the control of such party and which by the
exercise of reasonable foresight of such party, could not have been prevented,
but lack of funds on the part of such party shall not constitute an Unavoidable
Delay. Notwithstanding the foregoing, in no event shall the Tenant be excused
from the payment of Rent hereunder by reason of Unavoidable Delay.
ARTICLE 2
DEMISE, DELIVERY AND SURRENDER
2.1. Demise and Leased Premises
In consideration of the covenants and agreements hereinafter set out, the
Landlord hereby leases the Leased Premises to the Tenant, to have and to
hold during the Term upon the conditions contained in this Lease. The
Tenant covenants to pay Rent and to observe and perform all the covenants
and provisos to be observed and performed by the Tenant pursuant to this
Lease. The parties further acknowledge and agree that, in respect of
certain areas comprising the Leased Premises, and in addition to the
rights of access otherwise afforded to the Landlord under the provisions
of this Lease, the Landlord reserves for its employees, agents and
contractors, upon reasonable notice to the Tenant (except in the case of
emergencies or urgent repairs and/or maintenance), a right of passage
through, above and below the Leased Premises for people, equipment,
machinery and apparatus for the purpose of allowing access to the Leased
Premises to facilitate the Landlord's performance of its obligations
pursuant to this Lease and to maintain, repair,
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clean, operate and respond to emergencies in the Complex. The Landlord
shall undertake reasonable efforts to co-operate with any "Risk Work Plan"
(as defined in section 14.2) process of the Tenant where such repairs
and/or maintenance impact on the Tenant's operations.
2.2. Shared Areas and Facilities
Subject to section 17.2 and to the Landlord's security procedures and
requirements with respect to the Complex, the Landlord hereby grants to
the Tenant, its employees, contractors, agents, visitors and other persons
transacting business with it, in common with the Landlord and other
occupants of the Complex from time to time, the right to use the Shared
Areas and Facilities for their intended purpose.
2.3. Examination of Leased Premises
The Tenant acknowledges having examined the Complex and the Leased
Premises and accepts same in their present condition. The Landlord has
commissioned a Phase II environmental site assessment in respect of the
Complex for completion prior to the Commencement Date. The Tenant shall
deliver to the party engaged to carry out such environmental assessment a
copy of all other environmental reports in its possession relating to the
Complex. The Landlord shall deliver to the Tenant prior to the
Commencement Date a copy of such report, together with a reliance letter
from the party preparing such reporting confirming that it may be relied
upon by the Tenant.
The Tenant confirms that, save as disclosed in the Acquisition Agreement,
it has not received notice of any non-compliance with any Applicable Laws,
Environmental Law or the mandatory recommendations of Factory Mutual
Global in relation to the Complex which have not or will not have been
complied with prior to the Commencement Date, which work shall be
completed with due diligence at the Tenant's cost.
The Tenant agrees that there is no promise, representation or undertaking
by or binding upon the Landlord with respect to any environmental matter
or any alteration, remodeling or decoration of the Leased Premises or with
respect to the installation of equipment or fixtures in the Leased
Premises, except as expressly provided in this Lease.
2.4. Separation of Leased Premises, Condition and Relocation
The Tenant, at its sole cost, shall construct demising walls to separate
the Leased Premises from the balance of the Complex to be retained by the
Landlord for its own use, by erecting walls, partitions and other security
measures as appropriate and shall complete such other work that is
reasonably necessary to achieve such purposes. The Leased Premises shall
be separated to avoid, where feasible, electrical and mechanical
modifications, while ensuring direct access to and egress from the Leased
Premises to the Shared Areas and Facilities. As built plans and drawings
in respect of the separation of the Leased Premises shall be prepared by
the Tenant and submitted to the Landlord within a reasonable period after
the Commencement Date. All electrical and mechanical systems in the Leased
Premises are accepted by the Tenant "as is" and any modifications thereto
shall be at the Tenant's sole expense. All such construction of the Tenant
shall be
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completed to the same standard as applicable to similar renovations
previously effected by the Tenant in the Complex.
2.5. Installation and Removal of Trade Fixtures
The Tenant may, with the prior approval of the Landlord, which approval
not to be unreasonably withheld or delayed, install trade fixtures,
including Production Equipment, of a type usual for the Permitted Use, in
good and sufficient manner but not so as to damage or impair the structure
or the heating, ventilating, air-conditioning (if applicable), plumbing,
electrical and mechanical systems of the Leased Premises or the Complex.
The Landlord shall either give its approval or its reasons for denying the
same within ten (10) business days of the Tenant's request for approval.
Provided the Landlord has approved the installation of such trade
fixtures, the Tenant shall arrange, coordinate and supervise the
performance and completion of all such work in a diligent and good and
workmanlike manner. The total cost of the work shall be paid by the
Tenant. The Tenant shall also forthwith reimburse the Landlord for all
costs, expenses and charges incurred by the Landlord with respect to such
work, including without limitation, building system modification or
enhancement costs or engineering review fees, if any.
On or before the Termination Date, the Tenant shall have the right, if not
in default beyond the applicable cure period, to remove, and shall remove
if required by the Landlord, all its trade fixtures, furniture and
equipment, making good at the Tenant's expense any damage caused by such
removal, and the Tenant shall vacate and surrender the Leased Premises to
the Landlord in the condition required under Section 7.1. The Tenant
further agrees that all Leasehold Improvements, whether by or for the
benefit of the Tenant, shall immediately upon affixation or installation
become the property of the Landlord and shall remain upon the Leased
Premises, provided that at the end of the Term, if so directed by the
Landlord, the Tenant shall remove such of the Leasehold Improvements as
the Landlord shall have previously indicated require removal, and any
change, alteration, major repair, addition or improvement to the Leasehold
Improvements made without the consent of the Landlord being required, and
such Production Equipment, trade fixtures and ancillary telephone,
telegraphic, electric or other cabling or wiring installed in the Leased
Premises without the consent of the Landlord being required, as the
Landlord may, in its sole discretion, require (excluding, for the purpose
of clarity, the demising walls and other separation, security measures and
partitioning work carried out pursuant to section 2.4), and make good at
the Tenant's expense any damage caused by such removal. The Landlord may
also elect to require the Tenant to rebuild partitioning at the end of the
Term in the Office Areas of the Leased Premises to a partitioned area to
open area ratio of 25:75. All property of the Tenant remaining upon the
Leased Premises after the termination of the tenancy shall be deemed to
have been abandoned by the Tenant in favour of the Landlord and may be
disposed of by the Landlord at its discretion without prejudice to the
rights of the Landlord to claim damages from the Tenant for failure to
remove the same. Nothing herein prohibits the Tenant from claiming the
cost of Leasehold Improvements incurred by the Tenant as deductions for
income tax purposes. For the purpose of clarity, the Tenant acknowledges
that in respect of the removal of certain of its trade fixtures and
Production Equipment, it shall be required to repair as set out in
Schedule "E".
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2.6. Overholding by Tenant
If the Tenant remains in possession of the Leased Premises subsequent to
the end of the Term without the execution and delivery of a new lease,
there shall be no tacit renewal, and the Tenant shall be deemed to be
occupying the Leased Premises as a tenant from month to month upon the
same terms and conditions as are set forth in this Lease insofar as the
same are applicable to a month to month tenancy, subject to Sections 58
and 59 of the Commercial Tenancies Act. Such month to month tenancy may be
terminated by either party at any time upon ninety (90) days Notice.
ARTICLE 3
RENTAL
3.1. Basic Rent
The Tenant shall pay to the Landlord as rent for the Leased Premises the
Basic Rent in advance on the first day of each and every month from the
Commencement Date to the Termination Date, and if the Commencement Date or
the Termination Date are not the first and last days of a month
respectively then the Basic Rent for the first and last months of the Term
shall be appropriately prorated.
3.2. Payment of Additional Rent for Complex Operating Costs
The Tenant shall in addition to the Basic Rent, pay the Tenant's Share of
Complex Operating Costs to the Landlord as Additional Rent throughout the
Term, in advance on the first day of each and every month during the Term
commencing with the Commencement Date, in equal and consequent monthly
installments on account of the Tenant's Share of Complex Operating Costs
based upon the Landlord's estimate of Complex Operating Costs determined
in accordance with section 3.3.
3.3. Annual Estimation of the Complex Operating Costs
Prior to the commencement of each Accounting Period, the Landlord shall
estimate the Complex Operating Costs for the next Accounting Period and in
so doing shall analyze, weight and if necessary, re-allocate the component
costs of the Complex Operating Costs to ensure an equitable and reasonable
allocation of such costs and expenses to the various uses and users in the
Complex. Such estimates may be adjusted and re-adjusted from time to time
by the Landlord. The Tenant shall pay to the Landlord monthly in advance
on the first day of each and every month during the Term, one twelfth
(I/12) of the amount of the estimated annual Complex Operating Costs, as
adjusted or re-adjusted, as the case may.
3.4. Annual Adjustment of Basic Rent Based Upon the Actual Complex Operating
Costs
Within one hundred and eighty (180) days following the end of each
Accounting Period the Landlord shall compute the actual Complex Operating
Costs for such Accounting Period and the Tenant's Share of the same and
shall submit a statement to the Tenant disclosing in reasonable detail the
various components of the same. If the Complex Operating Costs paid by the
Tenant in respect of such Accounting Period are less than the
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actual Complex Operating Costs for such Accounting Period, the Tenant
shall pay the difference to the Landlord forthwith. If the Complex
Operating Costs comprising the Basic Rent paid by the Tenant in respect of
such Accounting Period are greater than the amount of actual Complex
Operating Costs for such Accounting Period, the difference shall be
applied in payment of other amounts then owing by the Tenant to the
Landlord, and the balance, if any, shall be repaid to the Tenant
concurrent with the delivery of such statement.
The Landlord shall at the Tenant's expense provide to the Tenant
reasonable supporting documentation for its calculation of the actual
Complex Operating Costs and the Tenant's Share of the same for the current
or immediately preceding Accounting Period on the written request of the
Tenant.
3.5. Rent Covenant
The Tenant shall pay to the Landlord without demand, in lawful money of
Canada, at the times provided in this Lease, at the Landlord's Address or
at such other place as the Landlord may designate from time to time, the
Basic Rent and Additional Rent, without any deduction, set-off, counter
claim or abatement whatsoever. All amounts payable under this Lease,
unless otherwise provided, become due with the next installment of Basic
Rent. If the Tenant defaults in payment of any sum due hereunder the
Landlord shall have the same rights and remedies upon default as if the
sum were Rent in arrears.
3.6. Waiver of Set-Off
The Tenant hereby waives and renounces any and all existing and future
claims, offsets and compensation against any Basic Rent or Additional
Rent, and agrees to pay all Basic Rent and Additional Rent regardless of
any claim, offset or compensation which may be asserted by the Tenant or
on its behalf. The Tenant agrees that the Landlord may at its option apply
all sums received from the Tenant or due to the Tenant against amounts due
or payable hereunder as the Landlord determines notwithstanding any
instructions or designations to the contrary. No endorsement on any cheque
or statement in any letter accompanying a cheque shall be deemed an accord
or satisfaction and the Landlord may accept any payment without prejudice
to any rights the Landlord may have at law or under this Lease.
3.7. Interest on Overdue Rent
If the Tenant fails to pay within ten (10) days from when due any Basic
Rent or Additional Rent, the unpaid amount will bear interest from the due
date to the date of payment at the Stipulated Rate of Interest and such
interest shall be calculated and payable monthly.
3.8. Net Lease
It is the intent of the parties that this Lease be absolutely net to the
Landlord and that the Tenant shall pay all costs and expenses relating to
the Leased Premises and the business carried on therein except as
expressly provided in this Lease. Any amount or obligation herein relating
to the Leased Premises which is not expressly declared to be that of the
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Landlord shall be deemed to be an obligation of the Tenant to be performed
by or at the Tenant's expense.
ARTICLE 4
OTHER AMOUNTS TO BE PAID BY TENANT
4.1. Business Taxes, GST and Other Taxes
The Tenant shall pay every tax and license fee imposed in respect of all
business carried on in the Leased Premises, or in respect of the use or
occupancy thereof, and all such amounts shall be paid promptly to the
authorities responsible for collection.
If any business transfer tax, valued-added tax, multi-stage sales tax,
sales tax, goods and services tax, or any like tax is imposed on the
Landlord by any governmental authority on the Rent or any other payment,
cost or charge payable by the Tenant under this Lease, the Tenant shall
pay directly or reimburse the Landlord for the amount of such tax
forthwith upon demand (or at any time designated from time to time by the
Landlord) as Additional Rent.
4.2. Third Party Services
The Tenant shall be solely responsible for and promptly pay to the
appropriate third party all charges for services used or consumed in or
provided to the Leased Premises, but excluding services supplied by the
Landlord and charged to the Tenant as Rent. In no event will the Landlord
be liable to the Tenant in damages or otherwise for any failure to supply
any third party services to the Leased Premises. Nothing herein shall
disentitle the Tenant from pursuing any third party supplier of such
services for any damages suffered as a result of such failure.
4.3. Additional Services of the Landlord
The cost of all additional services requested in writing by the Tenant and
elected by the Landlord to be provided to the Tenant by the Landlord or
its agents or contractors shall be payable forthwith by the Tenant upon
demand by the Landlord together with the Landlord's management fee in
respect thereof.
4.4. Upgrading Building Systems
The cost to the Landlord of upgrading the building systems of the Complex
to service any extraordinary requirements of the Tenant shall be payable
forthwith by the Tenant upon demand by the Landlord, provided the Landlord
gives the Tenant prior Notice of the necessity of such upgrade and the
Landlord's estimate of the cost to the Tenant for such upgrade, whereafter
the Tenant shall have the option of reducing its requirements or having
the proposed upgrade proceed.
4.5. Leased Premises Heating, Ventilating and Air Conditioning Systems
The Tenant covenants to operate the heating, ventilating and
air-conditioning systems serving the Leased Premises as would a prudent
owner and to maintain, repair and
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replace such systems in accordance with the standards and specifications
provided to the business prior to the Commencement Date. Where any such
heating, ventilating and air-conditioning systems shall be damaged or
destroyed, or in the opinion of the Landlord require repairs, inspection,
overhauling or replacement, the Tenant shall, at its sole cost and
expense, commence and carry out any necessary work with reasonable speed.
ARTICLE 5
OPERATION OF COMPLEX
5.1. Utility Services
The Landlord shall permit the Tenant to connect its equipment, machinery
and trade fixtures to the utility services serving the Complex. In the
event that the Tenant overloads the capacity of any of such utility
services, the Tenant shall pay all costs and expenses resulting from the
Tenant's overloading of the said capacity as Additional Rent. The Tenant
shall advise the Landlord within twenty (20) business days after written
request therefore of the nature and quantity of all lights, equipment and
machines using electricity in the Leased Premises and shall permit the
Landlord or its authorized agents to make periodic inspection of all
facilities using electricity located within the Leased Premises. Where the
utility services of the Complex or any part thereof shall be damaged or
destroyed, or in the opinion of the Landlord require repairs, inspection,
overhauling or replacement, the Landlord shall commence and carry out such
necessary work as would a prudent owner with reasonable speed, unless such
utility services are wholly within and solely relate to the Leased
Premises, in which case the Tenant shall, at its sole cost and expense,
commence and carry out such necessary work as would a prudent owner with
reasonable speed. To the extent such damage or destruction is caused by
the act or omission of the Tenant or those for whom the Tenant is
responsible in law, the Landlord's cost, if any, of such necessary work
shall be charged to and paid by the Tenant as Additional Rent.
5.2. Taxes
Subject to the payment by the Tenant of Rent, the Landlord covenants to
pay all Taxes on or before their due date. The Landlord may appeal any
official assessment, any Taxes based on such assessment or the amount of
the Taxes relating to the Complex. In connection with any such appeal the
Landlord may defer payment of any taxes payable by it under the provisions
of this Section 5.2 to the extent permitted by law without penalty or
interest, and the Tenant shall cooperate with the Landlord and provide the
Landlord with all relevant information reasonably required by the Landlord
in connection with any such appeal.
5.3. Building and Pedestal Signage
The Tenant shall not paint, display, inscribe or place any sign, symbol,
notice or lettering of any kind anywhere outside the Leased Premises or
within the Leased, Premises so as to be visible from the outside of the
Leased Premises without the prior written consent of the Landlord. It is
agreed and understood, however, that no corporate identification signage
will be permitted to be placed on the exterior facade of either Phases I
or III by either the Tenant, the Landlord or any other occupant or tenant
of the Complex except for
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corporate identification signage above the angled entrances to Phases I
and III, respectively. Any signage consented to by the Landlord shall
comply with the Landlord's then current policies and procedures regarding
signage in the Complex and include only the corporate name, business name
or logo of the Tenant. The exact size, location and style of
identification shall also be subject to the Landlord's prior approval and
to all Applicable Laws and the obtaining of all required consents and
licenses relating thereto. Any signage permitted by this section shall be
promptly removed by the Tenant at its sole cost and expense on the
termination or other expiration of this Lease and the Tenant shall
promptly make good any and all damage caused by either or both the
installation and removal of such signage. The Landlord hereby confirms
that it consents to the signage described in Schedule "G".
ARTICLE 6
INSURANCE AND INDEMNITY
6.1. Landlord's Insurance
The Landlord, acting reasonably, shall carry such insurance with such
deductibles and exclusions as would a prudent owner for the account and
benefit of the Landlord as the Landlord from time to time considers
useful, expedient or beneficial, it being agreed and understood however
that such insurance shall include, the following:
6.1.1 insurance against All Risks of loss or damage including sprinkler
leakage and damage due to flood or earthquake, covering all property
owned by the Landlord or for which the Landlord is responsible under
this Lease relative to the Complex including the buildings, the
Common Facilities and the Leased Premises, but excluding all trade
fixtures, furniture and stock-in-trade belonging to the Tenant;
6.1.2 insurance against loss of the Landlord's gross profits including
loss of Basic Rent;
6.1.3 insurance against mechanical break-down, explosion, rupture or
failure of boilers, pressure vessels, heating, ventilating and
air-conditioning equipment, electrical apparatus and other like
apparatus owned by the Landlord;
6.1.4 comprehensive general liability insurance with respect to the
Landlord's operation of the Complex covering bodily injury, death
and damage to property of others; and
6.1.5 insurance against any other form or forms of loss which the Landlord
or any Mortgagee may require from time to time.
Notwithstanding any contribution by the Tenant to the Landlord for
insurance premiums as provided in this Lease, no insurable interest is
conferred upon the Tenant under policies carried by the Landlord, and the
Tenant shall have no right to receive any proceeds of insurance from
policies carried by the Landlord. The Landlord shall in no way be
accountable to the Tenant regarding the use of any insurance proceeds
arising from any claim, and the Landlord shall not be obliged to account
for such proceeds, nor to apply such proceeds to the repair or restoration
of that which was insured except to the extent provided herein. If the
Tenant desires to receive indemnity by way of insurance
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for any property, work or thing whatever including Leasehold Improvements,
the Tenant shall insure same for its own account and shall not look to the
Landlord for reimbursement or recovery in the event of loss or damage from
any cause, whether or not the Landlord has insured same and recovered
therefor. All such policies of insurance shall exclude the exercise of any
claim of the insurers, whether by subrogation or otherwise, against the
Tenant or those for whom the Tenant is in law responsible.
6.2. Tenant's Insurance
The Tenant shall keep in force during the Term at its own expense the
following:
6.2.1 insurance against All Risks of loss or damage to Tenant's property
and property for which Tenant is responsible under this Lease,
including damage due to floods or earthquakes for the full
replacement value of the equipment, inventory and Leasehold
Improvements;
6.2.2 comprehensive general liability insurance, including Tenant's All
Risk legal liability insurance in respect of the Leased Premises, in
an amount not less than Ten Million Dollars ($10,000,000), or such
greater amount as may be stipulated by the Landlord from time to
time, in respect of injury to or death of one or more than one
person, and for damage to tangible personal property, regardless of
the number of claims arising as a result of any one occurrence;
6.2.3 insurance for boilers, machinery, rotating apparatus, pressure
vessels, electrical apparatus, and production equipment, tools and
systems issued on a broad form basis in an amount not less than the
full insurable value, calculated on a replacement cost basis without
deduction for depreciation, covering all objects in or on the Leased
Premises insurable under this form of insurance, and resulting
business interruption coverages;
6.2.4 motor vehicle insurance having third party liability limits not less
than Five Million Dollars ($5,000,000) covering all vehicles owned
or operated by the Tenant from the Complex;
6.2.5 insurance against any acts of infidelity or sabotage by the Tenant
or its officers, directors, employees, agents, contractors,
customers or invitees in such forms and with such limits as may be
requested by the Landlord from time to time; and
6.2.6 such other insurance as the Landlord or any Mortgagee may reasonably
require from time to time with respect to the property and
operations of the Tenant from the Complex.
All such policies of insurance shall be placed with insurers licensed to
do business in Canada or the United States of America and shall exclude
the exercise of any claim of the insurer or insurers, whether by
subrogation or otherwise, against the Landlord or any Mortgagee or those
for whom any of them are in law responsible and the Tenant shall deliver
certificates of insurance to the Landlord evidencing such coverages in a
form acceptable to the Landlord on or before the Commencement Date. Each
such policy shall include the Landlord and any Mortgagee of whom the
Tenant has been given Notice as
15
additional insureds as their interests may appear and shall contain a
waiver, in favour of the Landlord and any such Mortgagee and those for
whom any of them are in law responsible, of any breach or violation of any
warranties, representations, declarations or conditions contained in the
policies. All such insurance shall be primary insurance and shall not call
into contribution any insurance carried by the Landlord or any Mortgagee.
All policies of comprehensive general liability insurance shall contain a
severability of interest clause and a cross-liability clause as between
the Tenant, the Landlord and any Mortgagee included as an additional
insured on such policy. All policies shall contain a provision requiring
that at least thirty (30) days' written notice be given to the Landlord
and any Mortgagee included as an additional insured as aforesaid by the
insurer prior to cancellation or expiry, and the Tenant shall obtain
undertakings from all insurers to that effect. If after three (3) business
days' Notice of default to the Tenant, the Tenant fails to perform its
obligations pursuant to this Section 6.2 the Landlord may effect such
insurance on behalf of the Tenant, and any premium paid by the Landlord
which is otherwise the responsibility of the Tenant hereunder shall be
payable forthwith by the Tenant upon demand by the Landlord as Additional
Rent.
6.3. Premium Increases and Cancellation
The Tenant shall promptly comply with all requirements of the Landlord's
and Mortgagee's insurance underwriters regarding the use and occupation of
the Leased Premises, and the Tenant shall not do, omit, or permit to be
done or omitted anything which shall cause any insurance premium with
respect to the Complex or any part thereof to be increased, or which may
cause any policy of insurance of the Landlord with respect to the Complex
to be cancelled. To the extent anything done or omitted to be done by the
Tenant causes any insurance premium of the Landlord with respect to the
Complex to be so increased the Tenant shall pay to the Landlord forthwith
upon demand the amount of such increase. If any insurer threatens to
cancel, cancels or refuses to renew any insurance policy of the Landlord
upon the Complex by reason of the use or occupation of the Leased Premises
or any part thereof by the Tenant, the Tenant shall forthwith remedy or
rectify such use or occupation within the time limit required by the
insurer upon being requested to do so by Notice by the Landlord, and if
the Tenant shall fail to do so within a reasonable period of time after
such Notice, the Landlord may at its option, without prejudice to any
other rights it may have, terminate this Lease by Notice to the Tenant.
Thereupon the Tenant shall pay Basic Rent and Additional Rent owing to the
date of such termination and shall immediately deliver up possession of
the Leased Premises to the Landlord, and, without prejudice to all other
rights and remedies available to it for breach of this Lease, the Landlord
shall have the right to re-enter the Leased Premises.
6.4. Compliance with Landlord's Insurance Requirements
In its use and occupation of the Leased Premises and of the Complex, the
Tenant shall comply with all fire protection and loss prevention
requirements imposed by Factory Mutual Global in respect of Level I
Priority Recommendations, and in all other cases as negotiated with the
Factory Mutual Global, and, without limiting the generality of the
foregoing, shall ensure that all of its operations, equipment
modifications, equipment installation, tools, emergency organizations,
fire protection and loss prevention response team procedures comply with
all Factory Mutual Global standards and requirements as
16
aforesaid. The Landlord and the Landlord's underwriter shall consult with
Tenant in respect of the negotiation of compliance issues taking into
consideration a reasonable cost risk benefit analysis in relation thereto.
The Tenant shall undertake its best efforts to ensure that the Landlord
receives the benefit of any "grandfathering" status presently held by the
Tenant in respect of current exceptions relevant to the Business. If
within a reasonable period of time after Notice the Tenant fails to comply
with the foregoing requirements and standards, the Landlord shall have the
right, at its option, to implement or enforce necessary corrections, and
the cost thereof shall be payable forthwith by the Tenant upon demand by
the Landlord as Additional Rent.
6.5. Limitation of Landlord's Liability
Except to the extent caused or contributed by an act or omission of the
Landlord or those for whom it is responsible in law, the Landlord shall
not be liable or responsible in any way for any death or any injury of any
nature whatsoever that may be suffered or sustained by the Tenant or any
employee, contractor, agent or customer of the Tenant or any other person
who may be upon the Leased Premises, or for any loss or damage or injury
to any property belonging to the Tenant or its employees, agents or
contractors or to any other person while such property is on the Leased
Premises. Without limiting the generality of the foregoing, except to the
extent caused or contributed by an act or omission of the Landlord or
those for whom it is responsible in law, the Landlord shall not be liable
for any damage or damages of any nature whatsoever to persons or property
on the Leased Premises caused by explosion, fire, theft or breakage, by
sprinkler, drainage or plumbing systems, by failure for any cause to
supply adequate drainage or snow or ice removal, by the interruption of
any public utility or service, by steam, gas, water, rain, snow, or other
substances leaking, issuing or flowing into any part of the Leased
Premises, or by anything done or omitted to be done by any other tenant,
occupant or person in the Complex. In addition the Landlord shall not be
liable for any loss or damage for which the Tenant is required to insure
pursuant to Section 6.2.
The Landlord shall not be liable for any indirect or consequential damage
of any type, or for damages for personal discomfort or illness of the
Tenant, its officers, directors, employees, contractors, invitees,
clients, customers or other persons. The Tenant shall not be entitled to
any compensation, any diminution or abatement of Rent, any claim for
constructive or actual eviction or any claim of breach of the Landlord's
covenant of quiet enjoyment by reason of the operation or non-operation of
any of the equipment or systems referred to in this Lease, or by failure
of the Landlord to provide any of the services referred to in this Lease,
or for any act or omission on the part of any third parties employed or
retained by the Landlord to perform any work or perform any service under
this Lease.
6.6. Indemnity by Tenant
The Tenant shall indemnify the Landlord against and from all loss, costs,
claims, or demands in respect of any injury, loss or damage of the type
referred to in Section 6.5 or resulting from a default under Section 6.4,
to the extent caused by an act or omission of the Tenant or those for whom
the Tenant is at law responsible, and against and from any breach by the
Tenant of any provision of this Lease.
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6.7. Limitation of Tenant's Liability
Notwithstanding anything in this Lease to the contrary, the Tenant shall
not be liable for any loss or damage for which the Landlord is insured or
required to be insured pursuant to section 6.1. The Landlord shall
indemnify the Tenant against and from all losses, costs, claims, or
damages in respect of any injury, loss or damage to the extent caused by
an act or omission of the Landlord or those for whom the Landlord is law
responsible, or any breach by the Landlord of any provision of this Lease.
The Tenant shall not be liable for any indirect or consequential damage of
any type, or for damages for personal discomfort or illness of the
Landlord, its officers, directors, employees, contractors, invitees,
clients, customers or other persons.
ARTICLE 7
REPAIRS AND ALTERATIONS
7.1. Tenant's Repairs
Subject to the Landlord's obligations pursuant to Section 7.8, throughout
the Term, the Tenant shall repair, maintain and keep in proper operating
condition, subject to normal wear and tear, all as would a careful owner,
the Leased Premises and every part thereof including without limitation
the Leasehold Improvements, equipment, fixtures, furnishing, all glass,
every part of the structural, heating, cooling, ventilating,
air-conditioning, plumbing and other mechanical installations serving the
Leased Premises, whether or not any such items were installed or furnished
by the Tenant. It is further agreed and understood that so long as Mitel
Corp. is in actual occupation of not less than eighty-five percent (85%)
of the area of the Leased Premises, the Tenant shall in addition to the
foregoing, throughout the Term at its sole cost and expense, also repair,
maintain and keep in proper operating condition, all as would a careful
owner, the structural components and roof of those parts of the Leased
Premises known as Phase III and Block C of Phase I, respectively, and the
Landlord shall be relieved of such responsibility pursuant to section 7.8.
7.2. Tenant to Notify of Defects
The Tenant shall promptly notify the Landlord of any damage to or defect
in any part of the Leased Premises, or in any equipment or utility system
serving the Leased Premises, of which the Tenant becomes aware and which
may cause or result in death or injury to any person or damage to
property.
7.3. Tenant Work
The Tenant shall not, without the Landlord's prior written approval, which
approval may not be unreasonably withheld by the Landlord, make any
change, alteration, repair, addition or improvement in or to the Leased
Premises which affects in a material way the structure or perimeter walls,
any sprinkler system, life safety equipment or systems, heating,
ventilating, and/or air-conditioning equipment or systems, the plumbing,
electrical and mechanical equipment or systems, the bearing floors, the
signage, the ceilings, the columns or the roof. The Tenant shall submit to
the Landlord adequate
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details of any such proposed work which requires the Landlord's approval
including drawings and specifications conforming to good engineering
practice which have been prepared by qualified engineers and designers.
Within ten (10) business days of receipt of the Tenant's request for
approval, the Landlord shall either give its approval or describe in
writing with reasonable particularity the reasons for denying the same. At
the time of granting the approval, the Landlord shall advise the Tenant as
to whether the Tenant shall be required on the Termination Date, to remove
such alterations and restore the Leased Premises in accordance with
Section 2.5. All work carried out by the Tenant (whether or not requiring
the Landlord's consent) shall be carried out in a good and workmanlike
manner, with quality materials and in accordance with all Applicable Laws
and the drawings and specifications approved by the Landlord, and shall be
performed by contractors and subcontractors who have been approved in
advance by the Landlord and by competent workers. The Tenant shall submit
to the Landlord's supervision over construction and promptly pay when due
the cost of all such work and of all materials, labour and services
involved therein. Upon the completion of the work, the Tenant shall
deliver to the Landlord "as built" CAD drawings with respect to such work.
The Tenant shall ensure that its general contract or takes out and keeps
in force contractor's general liability insurance, all risks property
insurance insuring physical loss or damage during the course of
construction, including without limitation, damage due to flood or
earthquakes, for the full replacement value of the work, and boiler and
pressure vessel insurance issued on a broad form basis in an amount not
less than replacement value (collectively, the "Contractor's Insurance").
The term of each policy of insurance comprising the Contractor's Insurance
shall be from the date of the commencement of the work until ten (10) days
after the work has been completed. The Tenant shall during the term of the
Contractor's Insurance monitor the limit of both the all risks property
insurance and the boiler and pressure insurance included in the
Contractor's Insurance to include the cost of changes in the work. The
Tenant shall also ensure that the Landlord is added as an additional
insured to the Contractor's Insurance. Prior to the commencement of any
such work, the Tenant shall require its general contractor to provide the
Landlord with proof that the Contractor's Insurance is in place and in
good standing and to promptly provide the Landlord, on request, a
certified true copy of each insurance policy comprising the Contractor's
Insurance. If the general contractor fails to provide or maintain the
Contractor's Insurance as required by this section, the Landlord shall
have the right to provide and maintain such insurance, in which case the
cost thereof shall be payable by the Tenant to the Landlord on demand. In
the case of an insured loss, any deductible amount payable under the
Contractor's Insurance and paid or absorbed by the Landlord shall be
reimbursed by the Tenant forthwith on demand.
During the course of construction, the Landlord and its employees and
consultants shall have reasonable access to the Leased Premises to inspect
and examine all work being carried out, provided that such right of
inspection and examination shall not be exercised in a manner which would
interfere with the construction and completion of such work. If the
Landlord gives the Tenant Notice that the work being carried out is
deficient or is otherwise not in compliance with the approved drawings and
specifications, which Notice shall contain particulars of the alleged
deficiency or non-compliance, the Tenant shall immediately provide a copy
of such Notice to the Tenant's architect and shall immediately attempt to
cure such deficiency or non-compliance by enforcing its remedies
19
as appropriate in accordance with the provisions of the construction
contract with its general contractor or otherwise with the intention that
such alleged deficiency or non-compliance be rectified in the shortest
possible time. The Tenant's architect shall promptly notify the Landlord
whether or to the extent he/she concurs with the provisions of the
Landlord's Notice. Either the Landlord or Tenant may refer the decision of
the Tenant's Architect to arbitration.
Within thirty (30) days of substantial completion (as such term in defined
in the Construction Lien Act, as amended or replaced from time to time) of
such work, the Tenant shall deliver to the Landlord (i) copies of all
guarantees and warranties provided by any contractors, subcontractors, or
material suppliers with respect to the work, and (ii) a certificate issued
by the Tenant's Architect certifying that the work has been completed in
accordance with all Applicable Laws and in accordance with the approved
drawings and specifications. The Tenant agrees to use its best efforts to
complete any incomplete work as noted in the Tenant's Architect's
certificate (or as determined by arbitration) promptly and in a good and
workmanlike manner and agrees to use its best efforts to cause any noted
deficiencies or incomplete work to be remedied within a reasonable period
given the nature of the deficiency.
Any dispute between Landlord and Tenant arising under any provisions of
this Article which cannot be resolved by good faith negotiations shall be
determined by arbitration in accordance with the Arbitration Act, 1991 of
Ontario, as amended or replaced from time to time.
7.4. Construction or Mechanic's Lien
The Tenant shall promptly pay all charges incurred by or on behalf of the
Tenant for any work, materials or services which may give rise to a
privilege or construction, mechanic's or other lien. If any such privilege
or lien is registered against the Complex or any part thereof, the Tenant
shall cause such privilege or lien to be discharged forthwith, and if the
Tenant fails to do so within ten (10) business days of Notice from the
Landlord, then in addition to any other right or remedy of the Landlord,
the Landlord may but shall not be obligated to discharge such privilege or
lien by paying the amount claimed to be due into court. The Landlord shall
charge to the Tenant all costs and expenses, including legal fees,
incurred by the Landlord in discharging the privilege or lien, and such
amount shall be payable forthwith by the Tenant upon demand by the
Landlord as Additional Rent.
7.5. No Interference with Tenant's Operations
Any work undertaken by the Landlord pursuant to this Article 7 shall be
carried out in a good and workmanlike manner at a cost structure not
exceeding the cost structure of comparable work performed by the Landlord
for its own purposes, and in such a manner as to minimize any
interference, disruption or conflict with any activities of the Tenant in
the Leased Premises.
7.6. Installation of Meters
At the Tenant's request and expense, the Landlord shall install, at
locations appropriate for such purposes, devices to measure temperature
and humidity within the Leased
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Premises, and separate meters or sub-meters for measuring the amount of
electricity, water, chilled water, fuel, gas, steam or other material
supplied to the Leased Premises. If as a result of such metering there is
a material discrepancy between the actual consumption values and the
values allocated by the Landlord to the Tenant as the Tenant's Share of
the such components of the Complex Operating Costs for the Accounting
Period in question, the Landlord shall, within ninety (90) days thereof,
adjust the Tenant's Share of such components of the Complex Operating
Costs to reflect such actual consumption values. If the actual consumption
values determined by such metering are not material, the adjustments to
reflect the metered data shall not be made until the next Accounting
Period.
7.7. Repair Where Tenant at Fault
If the Complex or any part thereof, including the Shared Areas and
Facilities, require repair or become damaged or destroyed through any act,
omission, negligence or carelessness of the Tenant, its servants, agents,
employees, contractors, sublessees, or licensees, where such damage or
destruction exceeds $10,000, the Landlord shall effect the necessary
alterations, replacements or repairs and shall charge the Tenant the cost
thereof, and such amount shall be payable forthwith by the Tenant upon
demand by the Landlord as Additional Rent.
7.8. Repairs by Landlord
Subject to Section 7.7 and Article 8, the Landlord shall maintain and make
such repairs and replacements to the Common Facilities and the structural
components and roof of the Leased Premises, as would a prudent owner, and
the cost thereof shall be included in Complex Operating Costs.
Notwithstanding the foregoing, so long as Mitel Corp. is in actual
occupation of not less than eighty-five percent (85%) of the area of those
parts of the Leased Premises known as Phase III and Block C of Phase I,
respectively, the Landlord shall be relieved of its obligations hereunder
with respect to that part of the Leased Premises known as Phase III, it
being agreed and understood that Mitel Corp. shall assume such obligations
pursuant to Section 7.1.
7.9. Door Locks
If the Tenant replaces any lock in the Leased Premises with a high
security device, the Tenant shall on or before the Termination Date, if
requested by the Landlord, replace such high security lock with a lock
equal in quality and comparable in design to the original lock and shall
surrender to the Landlord all keys, passcodes and access codes to the
Leased Premises and the Complex. The Tenant shall provide keys or passcode
access to the Landlord for all areas of the Leased Premises for purposes
of emergency maintenance, repair and loss prevention.
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ARTICLE 8
DAMAGE OR DESTRUCTION
8.1. Right to Terminate
If twenty-five percent (25%) or more of the Floor Area of the Leased
Premises is damaged or destroyed by any cause whatsoever, to the extent
that in the opinion of the Architect the Leased Premises cannot be
repaired or rebuilt with reasonable diligence within six (6) months of the
date of the occurrence of such damage or destruction, then either party
may, at its option to be exercised by Notice to the other within the
thirty (30) days next following such occurrence, elect to terminate this
Lease. If either or both parties so elect, the Term of this Lease and the
tenancy hereby created shall expire by lapse of time upon the thirtieth
(30th) day after such Notice is given, and the Tenant shall, within such
thirty (30) day period, vacate the Leased Premises and surrender the same
to the Landlord, failing which the Landlord shall have the right to
re-enter and repossess the Leased Premises discharged of this Lease and to
remove all persons and property therefrom. In no event shall the Landlord
be liable to reimburse the Tenant for damage to or replacement or repair
of fixtures, floor coverings, furniture, equipment or Leasehold
Improvements.
8.2. Repair and Rebuilding
If neither party elects to terminate this Lease pursuant to Section 8.1,
the Landlord shall proceed to repair or rebuild the Complex with due
diligence, including the structural and infrastructural component of the
Leased Premises, to the extent possible with the insurance proceeds
received by the Landlord from the Landlord's insurers, or which would have
been received had the Landlord insured as required by this Lease. In
repairing, reconstructing, or rebuilding the Complex or any part thereof
the Landlord may use designs, plans, and specifications other than those
used in the original construction, and may alter or relocate, or both, any
or all of the buildings, facilities and improvements, including the Leased
Premises, provided that the Leased Premises as altered or relocated shall
be of substantially the same size, and be in all material respects
reasonably comparable to the Leased Premises as defined herein, excluding
only the Leasehold Improvements. Upon its completion of its repair and
rebuilding, the Tenant shall forthwith commence and expeditiously finish
the repair and rebuilding of the interior of the Leased Premises and the
Leasehold Improvements in accordance with the provisions of Section 7.1.
All such repair and rebuilding of the interior of the Leased Premises and
the Leasehold Improvements shall be at the Tenant's cost.
8.3. Abatement of Rent
The Rent shall xxxxx in proportion to the Floor Area of the Leased
Premises rendered untenantable by the occurrence of damage or destruction
to the Complex. The abatement of Rent shall continue until the earlier of
thirty (30) days following Notice to the Tenant from the Landlord
confirming that the Landlord has repaired or rebuilt the Leased Premises
to the extent required, or the day the Tenant opens the repaired and
rebuilt portion of the Leased Premises for business.
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8.4. Certificate of Architect Binding
The certificate of the Architect shall be binding upon the parties as to
the percentage of the Floor Area of the Leased Premises and the percentage
of the Gross Building Area destroyed or damaged, the state of
tenantability of the Leased Premises, and the date upon which the
Landlord's reconstruction and repair is substantially completed.
ARTICLE 9
LANDLORD'S COVENANTS
9.1. Landlord's Covenant for Quiet Enjoyment
The Landlord hereby covenants to perform all of the obligations of the
Landlord hereunder and further covenants that if the Tenant pays the Basic
Rent and Additional Rent and continuously and strictly performs all its
obligations hereunder, the Tenant shall and may, subject to the terms and
conditions of the Lease, peaceably possess and enjoy the Leased Premises
throughout the Term without any interruption or disturbance from the
Landlord or any other person or persons lawfully claiming by, from or
under the Landlord.
ARTICLE 10
TITLE OF COMPLEX
10.1. Subordination
The Tenant shall promptly upon the written request of the Landlord, enter
into an agreement:
(a) subordinating the Term and the rights of the Tenant hereunder to any
Mortgage; and
(b) agreeing that the Term hereof shall be subsequent in priority to any
such Mortgage;
provided that the Tenant's obligations under this paragraph shall be
conditional upon any such Mortgagee entering into a non-disturbance
agreement with the Tenant under which the Tenant's continued possession of
the Leased Premises under the terms of this Lease is ensured so long as
the Tenant is not in default hereunder notwithstanding any act taken by
the Mortgagee.
10.2. Attornment
The rights of the Landlord under this Lease may be hypothecated,
mortgaged, pledged, ceded, charged, transferred or assigned to a purchaser
or Mortgagee. Upon any request of the Landlord, the Mortgagee or any
purchaser, the Tenant shall attorn to and become the tenant of such
Mortgagee or such purchaser (provided the Mortgagee or purchaser, as the
case may be, accepts such attornment) on the same terms as are contained
in this Lease.
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10.3. Status of Lease Statement
Upon any request of either party, the other party shall execute,
acknowledge and transmit forthwith to the requesting party a statement in
writing certifying to the requesting party (and its Mortgagee or
purchaser, as applicable) that this Lease is in full force and effect,
certifying the extent of any prepayment of Basic Rent or Additional Rent,
certifying the existence or non-existence of defaults of which such party
has actual knowledge, and certifying any other matters pertaining to this
Lease as to which the requesting party shall reasonably request a
certificate.
10.4. Registration of Lease Prohibited
Each of the parties covenants with the other that it will not register
this Lease in this form against the title to the Lands, except by way of
notice or short form of lease, which notice or short form of lease shall
not disclose any financial terms of this Lease, which financial terms
include, without limiting the generality of the foregoing, rental rates,
rent free, rent deferred and rent reduced periods, and any other form of
tenant inducement. The Landlord hereby agrees to execute a short form of
lease which complies with this section, if necessary for the purpose of
supporting of an application for registration of notice of this Lease.
ARTICLE 11
USE OF LEASED PREMISES
11.1. Type of Business Permitted
The Tenant covenants not to use or permit the Leased Premises or any part
thereof to be used for any unlawful purpose, lodging, cooking (except in
the cafeteria), sleeping or any other purpose other than the Permitted
Use.
11.2. Compliance With Applicable Laws and Government Requirements
Subject to the provisions of section 11.5, the Tenant shall at its own
expense comply with all Applicable Laws, including Environmental Laws,
applicable to the Leased Premises and the business conducted therein, and
all other present and future requirements of all municipal, provincial,
federal and other applicable governmental authorities pertaining to the
Leased Premises or the Tenant's use thereof.
11.3. Waste/Nuisance
The Tenant shall not commit or permit any waste or injury to the Leased
Premises including without limitation the Leasehold Improvements and trade
fixtures therein. The Tenant shall not commit or permit any nuisance in
the Complex. The Tenant shall not cause annoyance to the other occupants
of the Complex by any means including the creation of objectionable or
offensive noises, vibrations or odours and the Landlord shall determine in
its sole discretion, acting reasonably, whether such annoyance is being
caused.
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11.4. Rules and Regulations
The Tenant covenants and agrees that the Rules and Regulations shall in
all respects be observed and performed by the Tenant, its employees,
contractors and agents and, to the extent the Tenant can require the same,
by its invitees and others over whom the Tenant can reasonably be expected
to exercise control. The Landlord shall have available to it all remedies
provided in this Lease and all other legal remedies available at law or in
equity upon a breach of the Rules and Regulations by the Tenant. The
Landlord may terminate this Lease forthwith upon such breach if, after
Notice of such breach, the Tenant fails to remedy or commence to remedy
such breach within fifteen (15) days or fails to diligently continue to
rectify such breach. The Tenant acknowledges that the Landlord has no
obligation and there shall be no liability upon the Landlord for
non-enforcement of the Rules and Regulations. The current Rules and
Regulations are set out in Schedule "D" hereto.
11.5. Environment
The Tenant's storage, generation, use, handling, manufacture, processing,
labelling, transportation, treatment, emission, discharge or release of
general wastes and Hazardous Substances in the Leased Premises and in the
Complex shall be in compliance with Environmental Law. The Tenant further
covenants to provide written notification to the Landlord of any Hazardous
Substance which the Tenant intends to bring into the Complex, unless such
Hazardous Substances are in use in the Complex as at the Commencement
Date, so as to enable the Landlord to determine whether its existing
Environmental Process Management and Hazardous Substance Control systems
are capable of accommodating such Hazardous Substance. A list of the
Hazardous Substances in use in the Complex as at the Commencement Date
shall be provided to the Landlord by the Tenant on the Commencement Date.
If the Tenant wishes to bring into the Complex any Hazardous Substances
which cannot safely be accommodated by the Landlord's then existing
Environmental Process Management and Hazardous Substance Control systems,
the Tenant shall on Notice to the Landlord confirming the Tenant's
intention to proceed to bring such Hazardous Substances into the Complex,
and after such time as the Landlord shall require to implement appropriate
safety measures in that regard, pay all costs associated with the
modifications or upgrades required to be made to such systems, and for all
permits and licenses required to be obtained in that regard.
The Tenant, prior to the expiry of the Term, at its expense, shall cause
an environmental engineering firm or environmental consultant, acceptable
to the Landlord, which acceptance will not be unreasonably withheld, to
conduct a Phase II Environmental Assessment of the Environment, excluding
any location where waste from the Leased Premises has been disposed, to
determine whether there has been any release or discharge of Hazardous
Substances to the Environment during the Term (the "Study"), the scope and
commencement date of such Study to be acceptable to the Landlord, which
acceptance will not be unreasonably withheld, and to summarize the results
of the Study in a report to the Tenant (the "Report"), which report the
Tenant shall disclose to the Landlord at least thirty (30) days prior to
the expiry of the Term. The Tenant shall undertake at its expense such
remedial work, if any, in respect of releases or discharges of Hazardous
Substances to the Environment identified in the Report as are required to
25
bring the Environment into compliance with Environmental Law so as not to
give rise to liability on the part of the Landlord for the removal or
remediation of such Hazardous Substances or generally for Environmental
Losses (the "Remedial Work") provided it is established that the Hazardous
Substance has been released or discharged by the Tenant.
To the extent that the Remedial Work, or any portion thereof, is required
to be undertaken or completed after the expiry of the Term, the Landlord
shall ensure the Tenant is granted a free, unlimited and unrestricted
right of access to the Complex for the purpose of allowing the Tenant, its
employees, agents and subcontractors to undertake and complete the
Remedial Work. The Tenant shall use reasonable efforts to minimize any
disruption to the business of the Landlord or any other occupant of the
Complex likely to be caused by the Tenant's undertaking the Remedial Work
after the expiry of the Term.
Notwithstanding anything to the contrary in this Lease, Tenant shall not
be liable for or responsible for nor liable to pay any costs with respect
to: (i) Environmental Losses arising from the migration during the Term of
Hazardous Substances from another property to the Lands or from the Lands
to another property (in each case except to the extent the release of such
Hazardous Substances was caused by Tenant); and the Landlord shall
indemnify and hold harmless the Tenant, its officers and directors, and
those for whom it is at law responsible, from any claim, liability or
damage arising therefrom.
ARTICLE 12
ASSIGNMENT AND SUB-LETTING
12.1. Assignment by Landlord
To the extent that the Landlord's covenants and obligations under this
Lease are assumed by a purchaser or lessee of the Complex or a portion
thereof, or are assumed by an assignee of this Lease or any interest
therein, the Landlord shall without further written agreement be freed and
relieved of such covenants and obligations.
12.2. Assignment and Subletting by Tenant
The Tenant shall not assign this Lease nor sublet or part with or share
the occupation, control or possession of the Leased Premises or any part
thereof without the prior written consent of the Landlord, which consent
may not be unreasonably withheld. The Tenant may, however, without the
consent of the Landlord, assign this Lease or sublet the Leased Premises,
in whole or in part, to any corporation which is an affiliate of the
Tenant (such transfer being called an "Excepted Transfer") provided that
as soon as is reasonably practicable (and in any event prior to the
effective date of the Excepted Transfer), the Tenant shall give the
Landlord Notice of such Excepted Transfer and deliver to the Landlord an
agreement wherein such assignee or subtenant, as the case may be,
covenants to the Landlord to perform, observe and keep each and every
covenant, condition and agreement in this Lease on the part of the Tenant
to be performed, observed or kept (or in the case of a subletting, to the
extent the Tenant's covenants, conditions and agreements relate to that
part of the Leased Premises sublet to the subtenant), and further provided
the Tenant shall, notwithstanding such Excepted
26
Transfer, remain responsible to the Landlord for the performance of all
terms, covenants, conditions and agreements imposed upon the Tenant by
this Lease. If subsequent to an Excepted Transfer, such affiliate is no
longer affiliated with the Tenant (unless the shares of such company are
listed and traded on any recognized public stock exchange or the Tenant
remains its largest single common shareholder), such event shall be deemed
to be an assignment or subletting of this Lease, as the case may be, to
which the provisions of sections 12.2 and 12.3 shall apply. For the
purposes of this Section, the term "affiliate" or "affiliated" shall have
the meanings ascribed thereto in the Canada Business Corporations Act, as
amended from time to time.
Provided further that the Tenant may, without consent of the Landlord,
enter into a short term licence of a portion of the Leased Premises to a
third party whose presence in the Leased Premises is required to assist in
the Tenant's business operations (as for example for system design or
consulting purposes). In such event, the Tenant shall give the Landlord
Notice of such short term licence and ensure that such third party
observes all requirements of this Lease relating to the use and occupation
of the Complex, and notwithstanding such licence, the Tenant shall
continue to be responsible for the due and timely performance in full of
all of its obligations under this Lease.
12.3. Request to Assign or Sublet
If the Tenant requests the Landlord's consent to an assignment of this
Lease or to a subletting of the whole or any part of the Leased Premises,
the Tenant shall submit to the Landlord the name and address of the
proposed assignee or subtenant together with a copy of an offer or
agreement to assign or sublet or the sublease or assignment and such
additional information as to the nature of its business and its financial
responsibility and standing (including financial statements) as the
Landlord may reasonably require.
12.4. Assignment or Sublet Agreement
The Landlord's consent to any assignment shall be conditional upon the
assignee entering into an assignment agreement in form and content
satisfactory to the Landlord, to perform, observe and keep each and every
covenant, condition and' agreement in this Lease on the part of the Tenant
to be performed, observed and kept including the payment of Rent and all
other sums and payments agreed to be paid or payable under this Lease on
the days and times and in the manner specified. The Landlord's consent to
any sublease shall be conditional upon the subtenant entering into a
consent to sublease agreement in the form attached as Schedule "F". In no
event shall any assignment or subletting to which the Landlord may have
consented release or relieve the Tenant from its obligations fully to
perform all the terms, covenants and conditions of this Lease to be
performed.
12.5. Changes in Corporate Control
If the Tenant is a private corporation whose shares and those of its
parent company are not listed on a recognized public securities exchange,
and if for any reason the effective voting control of such corporation is
transferred from the person or persons having effective control of such
corporation at the Commencement Date (unless such transfer of control is
to an affiliated company of the Tenant), such transfer shall be deemed to
be an
27
assignment of this Lease to which the provisions of sections 12.2 and 12.3
shall apply (it being agreed and understood that if subsequent to such
transfer, the transferee is no longer affiliated with the Tenant, (unless
the shares of such company are listed on a recognized public securities
exchange or the Tenant remains its largest single common shareholder),
such event shall be deemed to be an assignment of this Lease to which the
provisions of sections 12.2 and 12.3 shall apply. The Tenant shall advise
the Landlord in writing forthwith of any such change in effective voting
control and shall make available to the Landlord for inspection, copying
or both, all books and records of the Tenant and affiliated company which
alone or with other data show the person, persons or entity having
effective voting control of the Tenant and affiliated company. The
Landlord may terminate this Lease upon thirty (30) days' Notice if such
books and records are not made available as requested by the Landlord. For
the purposes of this section, the term "affiliate" or "affiliated" shall
have the meanings ascribed thereto in the Canada Business Corporations
Act, as amended from time to time.
ARTICLE 13
DEFAULT OF TENANT
13.1. Landlord's Right of Re-Entry
If the Tenant shall be in default of any of its covenants hereunder, the
Landlord shall give to the Tenant Notice in writing stating that the said
default is to be remedied and that if such default is not remedied by the
Tenant within fifteen (15) days after the receipt of such Notice, or such
longer period as may be reasonably necessary in view of the nature of the
default, the Landlord may, at its option, either enter into and upon the
said Leased Premises or any part thereof in the name of the whole, and
this Lease shall be terminated; or the Landlord itself may take such steps
and do or cause to be done such things as may be necessary to remedy and
correct such defaults and may thereupon charge its total reasonable costs
and expenses, including legal fees, incurred in respect thereof to the
Tenant, who hereby covenants and agrees to pay the same forthwith and
further covenants that any and all such costs and expenses incurred by the
Landlord and unpaid by the Tenant shall be recoverable by the Landlord as
Additional Rent as if the same were and in the same manner as Rent
reserved and in arrears under the terms of this Lease.
13.2. Bankruptcy of Tenant and Other Events of Default
All arrears of Basic Rent, together with the Basic Rent and Additional
Rent for the next ensuing three (3) months shall immediately become due
and be paid as accelerated rent in the same manner as if it were Basic
Rent in arrears in each of the following cases: if any of the Tenant's
goods and moveable effects and chattels on the Leased Premises are seized
or taken in execution or attachment by any creditor of the Tenant, or if
the Tenant shall make any assignment for the benefit of creditors, or if
the Tenant makes any bulk sale other than a bulk sale to an assignee or
sublessee pursuant to an assignment or sublease consented to under Article
12, or if the Tenant becomes bankrupt or insolvent or takes the benefit of
any statute now or hereafter in force for bankrupt or insolvent debtors,
or if any order is made or proceedings taken for the winding-up of the
Tenant or for the termination of its existence, or if the Leased Premises
are used by any other
28
persons than those entitled to use them under the terns of this Lease, or
if a trustee or receiver or any person, firm or corporation in any
capacity whatsoever takes or obtains possession or effective control of
the assets of the Tenant, or a substantial portion thereof, or of the
conduct of the Tenant's business, or a substantial portion thereof
pursuant to any security or other agreement other than pursuant to a
permitted assignment. In each of the above cases the Landlord may
terminate this Lease by Notice to the Tenant and may re-enter and take
possession of the Leased Premises as though the Tenant or any other
occupant of the Leased Premises were holding over after the expiration of
the Term, and any Notices required to be given in such circumstances being
deemed to have been given and the notice period prescribed therein
expired.
13.3. Excuse of Performance
Notwithstanding anything contained in this Lease, neither the Landlord nor
the Tenant shall be deemed to be in default with respect to the
performance of any of the terms, covenants and conditions of this Lease,
except the Tenant's obligations to pay Basic Rent and Additional Rent, if
such default is due to Unavoidable Delay.
13.4. Cross - Default
A default by the Tenant of its obligations under any other lease between
the Tenant and the Landlord shall constitute a default under this Lease
and any default under this Lease by the Tenant shall constitute a default
by the Tenant under such other lease.
ARTICLE 14
LANDLORD'S RIGHT OF ACCESS
14.1. Right of Access and Method of Re-Entry
The Landlord and its representatives, employees, contractors and agents
who have received prior security clearances and have been issued
contractor badges shall have the right to enter the Leased Premises during
the Tenant's normal business hours upon reasonable prior Notice, or at any
time without notice during an emergency, as determined by the Landlord, to
examine the state of the Leased Premises and of the Leasehold
Improvements, equipment and fixtures therein, to make such changes,
repairs, alterations, improvements, additions or installations in and to
the Complex as the Landlord is otherwise entitled or required to carry out
pursuant to this Lease and to take into the Leased Premises all material
and equipment required in connection with the foregoing. The Landlord or
its employees, contractors or agents shall have the right to enter the
Leased Premises in the company of a representative of the Tenant, during
normal business hours upon reasonable prior Notice to show the Leased
Premises to any prospective assignee of the Head Lease or Mortgagee. In
the case of emergency, if the Leased Premises are locked the Landlord or
its employees, contractors or agents may enter the Leased Premises using a
master key or passcode, if available, and, in the case of an emergency, by
force if necessary without liability of any type of the Landlord to the
Tenant.
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14.2. Building Systems
Where any part of the building systems adjacent to the Leased Premises
require maintenance or repair, the Tenant shall on reasonable prior Notice
permit the Landlord to enter upon the Leased Premises in the company of a
representative of the Tenant to do such work as the Landlord deems
necessary. The Landlord shall undertake its reasonable efforts to
co-operate with the "Risk Work Plan" process of the Tenant where such
repairs and/or maintenance may impact on the Tenant's operations. For the
purposes of this Section, "Risk Work Plan" shall mean those policies and
procedures which the Tenant itself has in place ensuring that no
detrimental impact is made on and protection is given to the manufacturing
process or other work being carried out in the Leased Premises.
14.3. Obligations of Tenant and Landlord
No entry under Article 14 shall constitute an eviction of the Tenant in
whole or in part, and the Basic Rent and Additional Rent shall not xxxxx
while changes, repairs, alterations, improvements, additions or
installations in and to the Complex are being made. Nor shall any such
entry affect the obligations and covenants of the Tenant under this Lease,
and the Tenant shall have no claim by reason of loss or interruption of
business. Nothing in this Article 14 shall be deemed or construed to
impose upon the Landlord any obligation, responsibility or liability for
the care, maintenance or repair of the Leased Premises, or any part
thereof save as otherwise expressly set out in this Lease.
ARTICLE 15
SHARED AREAS AND FACILITIES
15.1. Non-Exclusive Right to Use Shared Areas and Facilities
Subject to section 17.2 and the other terms and conditions of this Lease,
the Tenant, its officers, employees and customers shall have the right, in
common with others designated by the Landlord or otherwise entitled, to
use the Shared Areas and Facilities for their proper and intended purpose
provided, however, no access shall be permitted to service, janitorial and
mechanical rooms, transformer vaults, electrical distribution rooms or
water meter rooms. The Tenant acknowledges that the Shared Areas and
Facilities are under the exclusive control and management of the Landlord
and that the Tenant is permitted to use the Shared Areas and Facilities
under an irrevocable licence. If changes are made to the Shared Areas and
Facilities by the Landlord, the Landlord shall not be subject to any
liability nor shall the Tenant be entitled to any compensation or any
diminution or abatement of Rent and such changes shall not be deemed to be
a constructive or actual eviction or a breach of the Landlord's covenant
for quiet enjoyment, unless such changes represent a material interference
with the normal business operations of the Tenant at the Leased Premises.
15.2. Alterations to Shared Areas and Facilities
The Landlord shall have the right at any time from time to time during the
Term to change, add to, subtract from, rearrange or alter the Shared Areas
and Facilities and other parts of the Complex including the Lands and all
buildings thereon, to dedicate portions of the Lands for municipal and
other governmental purposes and to convey portions of
30
the Lands to others for any purposes whatsoever. The Landlord shall use
its best efforts not to materially interfere with the normal business
operations of the Tenant, but the Landlord shall not be liable to the
Tenant for any interference or inconvenience caused by any action of the
Landlord under the provisions of this Section 15.2 unless such actions
represent a material interference with the normal business operations of
the Tenant at the Leased Premises.
ARTICLE 16
INTERPRETATION AND MISCELLANEOUS
16.1. No Partnership
Nothing contained in this Lease or in any acts of the parties hereto shall
be construed to create any relationship between the parties other than
that of Landlord, Tenant and Covenantor, if any, or to create a
relationship of partnership or of joint venture between the parties
hereto, or to constitute this Lease as an emphyteutic lease, or to create
any right of ownership in the Tenant.
16.2. Agency
The Tenant acknowledges that the Landlord may perform any or all of the
Landlord's obligations or exercise any of the Landlord's rights hereunder
through or by means of such manager, or other agency or agencies as the
Landlord may from time to time determine.
16.3. Lease is Entire Agreement
With the exception of the Acquisition Agreement, this Lease sets forth the
entire agreement between the Tenant and the Landlord with respect to the
Leased Premises. Any offer to lease or agreement to lease entered into by
the Landlord and Tenant prior to the execution of this Lease shall be
deemed to have been merged and extinguished in this Lease. No amendment or
addition to this Lease will bind the Landlord or the Tenant unless such
amendment or addition is in writing and signed by all parties to this
Lease.
16.4. Joint and Several Liability
The liability to pay Rent and perform all other obligations under this
Lease of each individual, corporation, partnership or business association
signing this Lease and of each member of any such partnership or business
association, the members of which are by law subject to personal
liability, shall be deemed to be joint and several.
16.5. Governing Law
This Lease shall he construed and governed by the laws of the Province of
Ontario and the laws of Canada applicable therein, and for this purpose
each party attorns to the exclusive jurisdiction of the courts of the
Province of Ontario in respect of any dispute under this Lease.
31
16.6. Interpretation
Words importing the singular number shall include the plural and words
importing firms and corporations shall include persons. Each obligation of
the Tenant in this Lease, although not expressed as a covenant, is
considered to be a covenant for all purposes. The article and section
headings and index of this Lease form no part hereof and are inserted for
convenience only. If any section, article, paragraph, sub-paragraph,
clause or sub-clause in this Lease is held invalid or unenforceable by any
court of competent jurisdiction, this Lease shall be interpreted as if
such section, article, paragraph, sub-paragraph, clause or sub-clause had
not been a part of this Lease.
16.7. Successors and Assigns
This Lease shall be binding upon, extend to and enure to the benefit of
the Landlord, Tenant and Covenantor, if any, and to each of their
respective, successors and permitted assignees.
16.8. Reasonableness
Except where specifically provided to the contrary in this Lease:
(i) whenever this Lease requires an approval, consent or
authorization by the Landlord or an agent of the Landlord, the
approval, consent or authorization shall not be unreasonably
withheld or delayed;
(ii) whenever this Lease requires a determination, estimation or
other action or exercise of discretion by the Landlord or an
agent of the Landlord, the determination, estimation, action
or exercise of discretion shall be reasonable and in
accordance with any applicable professional practice and
standards; and
(iii) whenever this Lease provides for costs, expenses and fees to
be paid by the Tenant, the costs, expenses and fees shall be
reasonable.
16.9. Counterparts and Facsimile
This Lease may be executed in any number of counterparts. Each executed
counterpart shall be deemed to be an original and all executed
counterparts taken together shall constitute one agreement. Each of the
parties hereto may execute this Lease by signing any such counterpart.
Each party hereto agrees that a copy of any signature page of this Lease
with a facsimile form of the signature of the person or persons signing
this Lease on behalf of such party shall constitute all required evidence
of the execution and delivery of this Lease by such party.
32
ARTICLE 17
SPECIAL PROVISIONS
17.1. Exercise of Rights by Landlord
Landlord shall act reasonably and as a prudent owner in exercising all
rights and so as not to interfere more than is reasonably necessary under
the circumstances with Tenant's use and enjoyment of the Premises.
17.2. Parking
The Tenant shall have access and use of, in common with other occupants of
the Complex, and at no additional cost, 2.48 unreserved parking spots on
the designated parking areas on the Lands for every 1,000 square feet of
the Area of the Leased Premises for the use of its employees and visitors.
17.3. Security
The Tenant shall comply with security measures in place for the Complex.
The Landlord shall consult with the Tenant in the establishment or changes
to such requirements for the Leased Premises, provided that any special
requirements of the Landlord or the Tenant shall be at such party's costs.
17.4. Cleaning/Janitorial Services/Garbage Removal
The Tenant shall at its own cost and expense, provide janitorial and
garbage removal services to the Leased Premises as would a prudent owner.
The Tenant shall ensure that materials subject to hazardous waste
regulations or other Environmental Laws are disposed of by Tenant at
Tenant's expense as required by such Environmental Laws, and where so
prohibited, not as part of the regular garbage. The Landlord may from time
to time monitor the disposal and removal of all general waste and
Hazardous Substances. The Landlord's costs and expenses associated with
such activities shall be charged to the Tenant as an additional service
pursuant to section 4.3.
17.5. Emergency Response Team
The Landlord and Tenant shall cooperate in the establishment and operation
of a joint emergency response team with the purpose of responding to all
environmental, health and safety emergencies at the Leased Premises.
IN WITNESS WHEREOF...
33
IN WITNESS WHEREOF the parties hereto have executed this Lease.
DATED this 27th day of March, 2001
MITEL RESEARCH PARK CORPORATION
Per: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Treasurer
Per:
----------------------------
Name:
Title:
I/We have the authority to bind
the corporation
DATED this 27th day of March, 2001
MITEL CORPORATION
Per: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President, Treasurer
I/We have the authority to bind
the corporation
34
SCHEDULE "A-1"
--------------
LEGAL DESCRIPTION OF THE LAND
-----------------------------
PIN 04517-0533 (LT)
Parcel 8-1, in the Register for Section 4M-280, being Block 8 on Plan
4M-280, save and except Parts 19 and 20 on Plan 4R-11340, in the City of
Ottawa, formerly City of Kanata.
PIN 04517-0535 (LT)
Parcel 10-1, in the Register for Section 4M-280, being Block 10 on Plan
4M-280, Subject to Instrument Numbers LT237263, LT476569 and NS62066, in
the City of Ottawa, formerly City of Kanata.
PIN 04517-0537(LT)
Parcel 12-1, in the Register for Section 4M-280, being Block 12 on Plan
4M-280, Subject to Instrument Numbers LT237263 and LT476569, in the City
of Ottawa, formerly City of Kanata.
PIN 04517-0560 (LT)
Parcel 26-1, in the Register for Section 4M-280, being Block 26 on Plan
4M-280, Subject to Instrument Numbers LT405509, LT646448, in the City of
Ottawa, formerly City of Kanata.
PIN 04517-0561(LT)
Parcel 27-1, in the Register for Section 4M-280, being Block 27 on Plan
4M-280, Subject to Instrument Numbers LT405509, LT646448, in the City of
Ottawa, formerly City of Kanata.
PIN 04517-0562 (LT)
Parcel 28-1, in the Register for Section 4M-280, being Block 28 on Plan
4M-280, Subject to Instrument Numbers LT405509, LT646448, in the City of
Ottawa, formerly City of Kanata.
PIN 04517-0569 (LT)
Parcel 33-3, in the Register for Section 4M-280, being Part of Block 33 on
Plan 4M-280, being Parts 2 and 17 on Plan 4R-4098, Subject to Instrument
Numbers LT323584 and LT236161, in the City of Ottawa, formerly City of
Kanata.
PIN 045717-0574 (LT)
Parcel 34-3, in the Register for Section 4M-280, being Part of Block 34,
Plan 4M-280, being Parts 1 and 18 on Plan 4R-4098, Subject to Instrument
Number LT323584, in the City of Ottawa, formerly City of Kanata.
35
PIN 04517-0577 (LT)
Parcel 35-1, in the Register for Section 4M-280, being Block 35 on Plan
4M-280, Subject to Instrument Number LT323584, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0578 (LT)
Parcel 36-1, in the Register for Section 4M-280, being Block 36 on Plan
4M-280, Subject to Instrument Number LT323584 and LT236161, in the City of
Ottawa, formerly City of Kanata.
PIN 04517-0644 (LT)
Block 9 on Plan 4M-280, Save and Except Parts 1, 2 and 3 on Plan 4R-11713,
in the City of Ottawa, formerly City of Kanata.
PIN 04517-0646 (LT)
Block 11 on Plan 4M-280, Save and Except Part 4 on Plan 4R-11713, in the
City of Ottawa, formerly City of Kanata. Subject to an Easement in favour
of Xxxx Canada over Part 2 on Plan 5R-4290, as in Instrument Number
NS62066, subject to an Easement in favour of The Corporation of the City
of Nepean, as in Instrument No. LT237263, in the City of Ottawa, formerly
City of Kanata.
PIN 04517-0648 (LT)
Block 13 on Plan 4M-280, save and Except Part 5 on Plan 4R-11713, Kanata.
Subject to an Easement in favour of the Corporation of the City of Kanata,
as in Instrument Number LT237263, subject to an Easement in favour of Xxxx
Canada over Part 6 on Plan 4R-11713, as in Instrument No. LT966819, in the
City of Ottawa, formerly City of Kanata.
PIN 04517-0650 (LT)
Block 14 on Plan 4M-280, Save and Except Part 7 on Plan 4R-11713, Kanata,
subject to an Easement in favour of Xxxx Canada over Part 9 on Plan
4R-11713, as in LT966819, in the City of Ottawa, formerly City of Kanata.
PIN 04517-0652 (LT)
Part of Block 15 on Plan 4M-280, being Part 10 on Plan 4R-11713, Kanata,
subject to an Easement in favour of the Corporation of the City of Kanata,
as in Instrument No. LT476569, in the City of Ottawa, formerly City of
Kanata.
PIN 04517-0660 (LT)
Block 22 on Plan 4M-280, Save and Except Parts 11 and 12 on Plan 4R-11340,
subject to an Easement in favour of the Corporation of the City of Kanata,
as in LT236160, in the City of Ottawa_ formerly City of Kanata.
PIN 04517-0662 (LT)
36
Block 23 on Plan 4M-280, Save and Except Parts 13 and 14 on Plan 4R-11340,
in the City of Ottawa, formerly City of Kanata.
PIN 04517-0664 (LT)
Block 24 on Plan 4M-280, Save and Except Parts 15 and 16 on Plan 4R-11340,
in the City of Ottawa, formerly City of Kanata.
PIN 04517-0666 (LT)
Block 25 on Plan 4M-280, Save and Except Parts 17 and 18 on Plan 4R-11340,
Subject to an Easement in favour of Xxxx Canada over Part 6 on Plan
4R-4626, as in Instrument Number LT405509, in the City of Ottawa, formerly
City of Kanata.
37
SCHEDULE "A-2"
--------------
LEGAL DESCRIPTION OF THE PHASE V LANDS
--------------------------------------
PIN 04517-0664 (LT)
Block 24 on Plan 4M-280. Save and Except Parts 15 and 16 on Plan 4R-1
1340, in the City of Ottawa, formerly City of Kanata.
38
SCHEDULE "B-1"
--------------
SITE PLAN SHOWING THE LANDS
---------------------------
[2 pages of graphics]
39
SCHEDULE "D"
------------
RULES AND REGULATIONS
---------------------
1 Animals and Birds
No animals (except seeing eye dogs) or birds shall be kept in the Leased
Premises.
2 Care of Interior of Leased Premises
The Tenant shall keep the interior of the Leased Premises clean, orderly
and tidy. The Tenant shall keep perishable items properly refrigerated.
The Tenant shall deposit all debris, trash and recyclables in appropriate
areas, at times and in such manner as the Landlord shall reasonably
designate.
3 Doors, Windows and Window Coverings
The skylights and windows that reflect or admit light into any place in
the Complex shall not be covered or obstructed by the Tenant, and no
awnings, curtains or blinds shall be installed without the prior written
consent of the Landlord. Windows and doors shall not be left open so as to
admit rain or snow or to interfere with the heating or cooling of the
Complex. The Tenant shall not and shall not permit its employees,
contractors, agents or invitees to throw anything out of the windows or
doors of the Complex or into any passageways, stairways, lightwells, or
elevator shafts of the Complex.
4 Loading, Unloading, Delivery of Merchandise
Deliveries, shipments and all loading and unloading of all items to and
from the Leased Premises shall be made at and from the Tenant's loading
bays and in such manner as the Landlord shall reasonably designate.
5 Obstruction of Plumbing and Washroom Facilities
The Tenant agrees that it will not use or permit its employees,
contractors, agents or invitees to use the plumbing or washroom facilities
of the Leased Premises or the Complex for any purpose other than that for
which they were constructed.
6 Overloading of Floors
The Tenant shall not permit any floor of the Leased Premises to be
overloaded. All equipment and other heavy objects liable to injure or
destroy any part of the Leased Premises or the Complex shall be moved at
such times, by such means and by such persons as the Landlord shall
reasonably direct. Upon the termination of this Lease the Tenant shall
forthwith inform the Landlord in writing of the combinations of all locks,
safes and vaults in or on the Leased Premises.
7 Parking
The Tenant and all persons employed by or doing business with the Tenant
shall park not more than the number of motor vehicles which the Landlord
has expressly permitted,
40
provided that no person or tenant shall have the exclusive use of any
particular parking space and no motor vehicle shall be parked on any
portion of the Complex which is a loading zone or is not designated by the
Landlord for parking or where signs are in place indicating that parking
is prohibited and the Tenant shall reimburse the Landlord on demand for
the cost of removal of any motor vehicle which is parked in excess of the
number expressly allowed by the Landlord, parked for a period of time
deemed by the Landlord to be excessive or parked in breach of this clause
and which belong to or is parked by any person employed by or doing
business with the Tenant.
8 Radio and Television
The Tenant shall remove any radio, television or other similar device in
the Leased Premises if in the judgment of the Landlord and in agreement
with the Tenant such radio, television or other similar device is creating
a nuisance. The Tenant shall not in any case erect or cause to be erected
any aerial anywhere in the Complex without the express written consent of
the Landlord. The Tenant's aerials erected in the Complex in existence on
the Commencement Date shall be permitted to remain in the Complex provided
that the Tenant will remove such aerials and repair any damage caused by
the installation or removal thereof as such aerials become obsolete or are
no longer being used by the Tenant.
9 Signs, Advertising and Displays
The Tenant shall not, in or about the Leased Premises without the written
consent of the Landlord, erect exterior signs, install window or door
signs, affix window or door lettering, erect awnings or canopies or
display advertising media or devices which may be seen or heard outside
the Leased Premises. The Tenant shall remove forthwith all signs,
lettering, awnings, canopies and displays which are found by the Landlord
to be objectionable. The Tenant shall indemnify and save harmless the
Landlord from all claims, demands, loss or damage to any person or
property arising out of or in any way caused by the erection, maintenance,
or removal of any sign or other installation erected or installed on or
about the exterior of the Leased Premises. The Tenant shall at its own
expense, maintain in good condition and repair all such signs, lettering,
awnings, canopies and displays, shall keep all displays and signs lit
during reasonable business hours and shall observe and comply with all
requirements of any competent authority regarding the erection and
maintenance of signs including the payment of licence or other fees.
10 Temperature and Humidity of Leased Premises
To the extent that the Tenant may exercise control, the Tenant shall keep
the Leased Premises at a temperature sufficient to prevent the freezing of
pipes in the Leased Premises and the Tenant shall keep the temperature and
humidity of the Leased Premises at a reasonable level. The Tenant shall
not vent the Leased Premises into other enclosed parts of the Complex nor
appropriate warm or cool air from other enclosed parts of the Complex.
11 Use of Entrances, Etc.
41
The sidewalks, entrances, lobbies, elevators, stairways and corridors (if
applicable) of the Complex shall not be obstructed by the Tenant or used
by it for any other purpose than for ingress and egress to and from the
Leased Premises and the Tenant shall not place or allow to be placed in
any such areas any waste paper, dust, garbage, refuse or anything whatever
that shall tend to make such areas appear unclean or untidy.
12 Wheeled Vehicles
All wheeled vehicles used within the Leased Premises shall be equipped
with rubber wheels and rubber guards so as not to damage the floors and
walls of the Complex. No motorized vehicles shall be permitted for loading
or unloading or parking purposes within the Leased Premises other than
electrically or propane operated material handling equipment, except with
the prior written consent of the Landlord, and the Tenant shall comply
with the rules and regulations of any regulatory agency having
jurisdiction in that regard, in the use, operation and storage of all such
equipment.
42
SCHEDULE "E"
------------
REPAIR OBLIGATIONS IN RESPECT OF THE REMOVAL OF TENANT TRADE
------------------------------------------------------------
FIXTURES [NTD: TO BE REVIEWED AND CONFIRMED]
--------------------------------------------
--------------------------------------------------------------------------------
Type of infrastructure Requirement for removal/addition
affected by tool or
fixture installation/removal
--------------------------------------------------------------------------------
1 Consequential interior demolition Demolition to allow tool removal
of other areas and reinstatement to condition
before addition/removal.
--------------------------------------------------------------------------------
2 Local supporting infrastructure Installed for addition, removed
to Lateral Supporting Building
Infrastructure in case of
demolition (per definition of
Production Tool).
--------------------------------------------------------------------------------
3 Cleanroom wall systems Not required to be replaced
unless such condition is
detrimental to maintaining the
integrity of cleanroom as
certified or airstream within,
in which case, patching the
wall system with a
landlord- approved material
will suffice.
--------------------------------------------------------------------------------
4 Ceiling systems, including, where Replacement or infill of system
applicable, HEPA filters with equivalent to system used
adjacent to affected area.
--------------------------------------------------------------------------------
5 Floor systems, including access Replacement or infill of system
floor systems with equivalent to system used
adjacent to affected area.
--------------------------------------------------------------------------------
6 Building envelope Reinstatement to condition
before addition/removal,
including recertification of
envelope where required by
Landlord's underwriter.
--------------------------------------------------------------------------------
7 Cleanrooms Recertification required at
Landlord's discretion where
cleanroom wall / floor / ceiling
breached.
--------------------------------------------------------------------------------
43
SCHEDULE "F"
------------
CONSENT BY LANDLORD TO SUBLEASE
-------------------------------
|_| is the landlord (the "Landlord") of those certain "Leased Premises" as
defined in section |_| of that certain lease agreement dated as of |_|
(the "Lease"), made and entered into by and between the Landlord and |_|
(the "Tenant") which Lease is incorporated herein by this reference. The
Lease contains a restriction against assignment or subletting by the
Tenant without the Landlord's prior written consent thereto. The Landlord
does hereby consent, subject to the following terms and conditions, to the
proposed offer to sublease agreement (the "Sublease") by and between the
Tenant, as sublandlord, to |_| (the "Subtenant") of that part of Leased
Premises comprising approximately |_| (|_| square feet as more
particularly described in such Sublease as the "|_|" (such part being
hereinafter called the "Sublet Premises"), a copy of which Sublease is
attached hereto as Schedule "A" and is incorporated herein by this
reference.
1. The Landlord's consent is expressly conditional upon the performance
and observance by the Tenant of the covenants, conditions and agreements
in the Lease, and this consent shall in no way affect or release the
Tenant from its liabilities and responsibilities under the terms of the
Lease. The Tenant acknowledges that, notwithstanding the terms of the
Sublease, it shall remain principally liable and responsible for all
liabilities and responsibilities of "Tenant" under the Lease.
2. This consent is given without prejudice to the Landlord's rights under
the Lease, this consent being limited to the Sublease to the Subtenant,
and shall not be deemed to be an authorization for or consent to any
further or other assignment or subletting or parting with or sharing
possession of all or any part of the Leased Premises or the Sublet
Premises.
3. The Landlord joins in this consent solely to grant its consent and, by
doing so, the Landlord does not thereby:
(a) make any representations or warranties; or
(b) acknowledge or approve of any of the terms of the Sublease as between
the Tenant, as sublandlord, and the Subtenant.
Further, nothing contained in the Sublease or this consent shall be
construed as modifying, waiving or affecting any of the provisions,
covenants and conditions or any of the Landlord's rights or remedies under
the Lease.
4. In consideration of the Landlord's consent to the Sublease, the Tenant
and Subtenant agree as follows:
(a) The Subtenant covenants that the Sublease shall be subject to and
subordinate to the Lease and further covenants and agrees that the
Subtenant will observe, comply with and perform all terms, conditions and
covenants in the Lease and to perform all obligations of any kind
whatsoever of the "Tenant" under the Lease as and when the same are due to
be performed by the Tenant pursuant to the terms of the Lease and to be
44
subject to all of the Landlord's rights thereunder during the entire term
of the Sublease, as though the Subtenant was named "Tenant" under the
Lease, to the extent that such covenants, obligations, terms and
conditions relate to that portion of the Leased Premises sublet to the
Subtenant under the Sublease. The Subtenant further expressly acknowledges
and agrees to be subject to the prohibition in the Lease against
subletting, assigning, mortgaging or encumbering or permitting the
occupation or use of all or part of the Leased Premises by others.
(b) The Tenant and Subtenant each represent and warrant that they have
dealt with no broker, finder, agent or other person in connection with the
Sublease other than |_| (the "Broker"), and they agree to indemnify and
hold the Landlord harmless from and against any claims or causes of action
for a commission or other form of compensation arising from the Sublease
or the Lease, whether advanced by the Broker or any other person or
entity. The provisions of this paragraph shall survive the termination of
the Lease, the Sublease and any renewal or extension of either or both of
them.
(c) The Subtenant waives any rights it may have as under-lessee under
section 21 of the Commercial Tenancies-Act, R.S.O. 1990 c. L.7, as amended
or replaced from time to time (the "Act"), or any like rights under common
law. For the purpose of clarity, the Subtenant agrees that notwithstanding
the Landlord has consented to the Sublease, the Subtenant shall not claim
or apply for an order vesting the term of the Sublease, the Leased
Premises, or any part thereof, in the Subtenant, upon the Landlord
re-entering the Leased Premises or forfeiting the Lease.
(d) The Subtenant waives any rights it may have as under-tenant under
subsection 32(2) of the Act or any like rights under common law. For the
purpose of clarity, the Subtenant agrees that notwithstanding the Landlord
has consented to the Sublease, if the Landlord distrains or threatens to
distrain any goods or chattels situate on the Sublet Premises, the
Subtenant shall not seek to protect such chattels from the Landlord's
distress as contemplated by subsection 32 (2) of the Act.
(e) The Subtenant waives any rights it may have under subsection 39(2) of
the Act, or any like rights under common law. For the purpose of clarity,
the Subtenant agrees that notwithstanding the Landlord has consented to
the Sublease, if a receiving order in bankruptcy, or a winding-up order
has been made against the Tenant, the Subtenant hereby agrees not to
exercise its election as under-lessee to stand in the same position with
the Landlord as though the Subtenant were a direct lessee of the Landlord.
5. The Tenant and Subtenant jointly and severally acknowledge that there
are no covenants, representations, warranties, agreements or conditions
expressed or implied, collateral or otherwise foaming part of or in any
way affecting or relating to the Landlord's consent to the Sublease save
as expressly set out herein and that this consent agreement constitutes
the entire agreement between the Landlord and the Subtenant and may not be
modified except by subsequent agreement in writing and executed by the
Landlord, the Tenant and the Subtenant.
45
IN WITNESS WHEREOF the undersigned have executed this consent as of |_|.
SIGNED, SEALED AND DELIVERED
In the presence of
SIGNED, SEALED AND DELIVERED
In the presence of
|_| [Landlord]
Per: _______________________
Name:
Title:
|_| [Tenant]
Per: _______________________
Name:
Title:
|_| [Subtenant]
Per: _______________________
Name:
Title:
46
SCHEDULE "G"
------------
TENANT SIGNAGE
--------------
The Tenant shall be entitled to have curb signage rights on all monuments
leading to the Leased Premises. The Tenant shall also be entitled to mount
an illuminated sign above the angled entrance to that part of the Leased
Premises known as Phase III and a directional sign over the Phase III
shipping and receiving area.
