Exhibit 2.3
RECEIVER'S ASSIGNMENT OF LEASE
This Indenture made as of the 16th day of September, 1998;
BETWEEN:
XXXXX XXXXXXXX LIMITED, as receiver and manager of the property and assets
of MENTOR NETWORKS INC., (the "Grantor")
OF THE FIRST PART
- and -
ITC CANADA LIMITED, a body corporate, having its registered office in the
City of Halifax, County of Halifax, Province of Nova Scotia, (the
"Grantee)
OF THE SECOND PART
RECITALS:
A. Mentor Networks Inc. granted certain security to the Nova Scotia Business
Development Corporation, a Crown Corporation of the Province of Nova
Scotia ("NSBDC") comprising, inter alia, the following:
a. A Debenture in the original principal amount of $2,500,000 dated
April 29, 1997 and registered under the CORPORATIONS SECURITY
REGISTRATION ACT on May 1, 1997 as number 30928A and also filed
under the PERSONAL PROPERTY REGISTRY on December 23, 1997 as number
155622;
b. A Mortgage by way of sublease of the Mentor's business premises
located in the Xxxxx'x Wharf Tower;
(collectively, the "Security")
B. Default having occurred under the Security, Xxxxx Xxxxxxxx Limited was
appointed Receiver of the property, assets and undertaking of Mentor
Networks Inc. by NSBDC on July 20, 1998 by written appointment;
C. In response to an open tendering process, the Grantee offered to purchase
the Receiver's right, title and interests in the assets of the Grantor on
August 19, 1998 which offer was accepted August 21, 1998, pursuant to
which the Grantor agreed to assign to the Grantee and the Grantee agreed
to purchase from the Grantor, inter alia, the interest of the Grantor in
the Lease dated 1997 between Mentor Networks Inc. and Xxxxx'x Wharf
Developments Limited for approximately 19,000 square feet of 0000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxxxx, more accurately referred to as the 6th
floor thereof defined in the Lease.
WITNESSETH THAT:
(1) In consideration of the sum of One Dollar ($1.00) of lawful money of
Canada now paid by the Grantee to the Grantor and other good and valuable
consideration, the receipt whereof is hereby acknowledged, the Grantor has
assigned to the Grantee all its interest in and to a Lease dated 1997
between Mentor Networks Inc. and Xxxxx'x Wharf Development Limited for
approximately 19,000 square feet of 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxx
Xxxxxx, more accurately referred to as the 6th floor thereof defined in
the Lease.
(2) TO HAVE AND TO HOLD the Lease unto and to the use of the Grantee, and the
Grantee's successors and assigns, FOREVER.
IN WITNESS WHEREOF the Grantor has caused this indenture to be properly
executed as of the day, month and year herein above first written.
SIGNED, SEALED AND DELIVERED )
in the presence of: ) XXXXX XXXXXXXX LIMITED,
) as receiver and manager of the
) property and assets of MENTOR
) NETWORKS INC.
)
) By: /s/ Xxxx Xxxxxxx
) ---------------------------
/s/ Xxxxxx X. XxxXxxxxx )
------------------------------ )
) NOVA SCOTIA BUSINESS
) DEVELOPMENT CORPORATION,
) as attorney of Mentor
Networks Inc., beneficial
) holder of the last day of
) the Lease.
)
) By: /s/ Xxxxxx X. Xxxx
/s/ ) ---------------------------
------------------------------ )
)
/s/
---------------------------
2
DATED: SEPTEMBER 1998
--------------------------------------------------------------------------------
BETWEEN:
XXXXX XXXXXXXX LIMITED, as receiver and manager of the property and
assets of Mentor Networks Inc.,
GRANTOR
- and -
ITC CANADA LIMITED, a body corporate, having its registered office
in the City of Halifax, County of Halifax, Province of Nova Scotia,
GRANTEE
------------------------------------------------------------------------------
RECEIVER'S ASSIGNMENT OF LEASE
PARCEL 4
------------------------------------------------------------------------------
X. Xxxx, Q.C.
XXXXXXX x XXXX
Barristers and Solicitors
708 - 1809 Barrington Street - CIBC Building
Halifax - Nova Scotia - Canada
X0X 0X0
File #32796
3
Xxx Xxxxxx X'Xxxxxx Xxxxxxxx
1100 Xxxxx'x Wharf Tower One
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xxxxxx
Correspondence
XX Xxx 0000 Xxx Xxxxxxx XXX
Xxxxxxx XX X0X 0X0
Xxxxxx X.XxxXxxxxx, Q.C.
Barrister and Solicitor
Phone (000) 000-0000
Fax (000) 000-0000
Direct (000) 000-0000
E-Mail xxxxxx@xxxxxxxxx.xx
September 17, 1998
Xxxxx'x Wharf Development Limited
Suite 305, Xerox Building
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX X0X0X0
Dear Sirs:
Re: Mentor Networks Inc.
- Assignment of Lease by Receiver to ITC Canada Limited
As you are aware, we have been acting as solicitors to Nova Scotia
Business Development Corporation and to Xxxxx Xxxxxxxx Limited, receiver of the
property and assets of Mentor Networks Inc. and of High Performance Group
(Canada) Inc.
I refer to the terms of the lease entered into by you with Mentor Networks
Inc., a copy of which attached, and the terms of the Indenture agreement between
Xxxxx'x Wharf Development Limited, Nova Scotia Business Development Corporation,
and Mentor Networks Inc. and High Performance Group (Canada) Inc. dated April
29, 1997, a copy of which is attached.
Xxxxx Xxxxxxxx Limited as receiver appointed by Nova Scotia Business
Development Corporation has agreed to assign the lease to ITC Canada Limited and
you have indicated that the landlord is prepared to consent to this assignment,
provided the assignee, ITC Canada Limited, agrees to be bound by all covenants,
terms and conditions of the attached lease.
It would be appreciated if you would confirm your consent by signing a
copy of this letter and returning it to me. I will treat your signing of the
letter as confirmation of the approval and also confirmation of your advice that
there is no default under the lease and that there is no outstanding rental,
save for the amount of $36,700.41 payable on September 18, 1998 in accordance
with your invoice number 980920, dated August 28, 1998, and outstanding invoices
#98065 dated July 6, 1998 for lights and #9806EX dated July 13, 1998 for excess
electricity.
4
Thank you for your co-operation on this matter.
Yours very truly,
/s/ Xxxxxx X.XxxXxxxxx
Xxxxxx X. XxxXxxxxx
RGM/cb
Agreed September 17, 1998:
Xxxxx'x Wharf Development Limited
Per: /s/ Xxxx X. Xxxxxxx, Xx.
-----------------------------
5
NET LEASE
(TOWER 1)
BETWEEN
XXXXX'X WHARF DEVELOPMENT LIMITED
as Landlord
AND
MENTOR NETWORKS INC.
as Tenant
Dated: ___________________, 1997
02/97
TABLE OF CONTENTS
PAGE
ARTICLE 1- INTENT OF LEASE...................................................1
1.1 General Provisions.....................................................1
ARTICLE 2- DEFINITIONS.......................................................1
2.1........................................................................1
(1) "lease"............................................................1
(2) "Phase I"..........................................................1
(3) "Phase II".........................................................1
(4) "Future Phases"....................................................1
(5) "Land".............................................................1
(6) "Building".........................................................1
(7) "Common Areas".....................................................2
(8) "Premises".........................................................2
(9) "Operating Year"...................................................2
(10) "Proportion"......................................................2
ARTICLE 3- DEMISE AND POSSESSION.............................................2
3.1 Demise.................................................................2
3.2 Delivery of Premises...................................................3
3.3 Notice of Defects......................................................3
3.4 Substitution of Premises...............................................3
ARTICLE 4- TERM OF LEASE.....................................................3
4.1 General Provisions.....................................................3
4.2 Renewal Option.........................................................4
ARTICLE 5- MONIES PAYABLE BY TENANT..........................................4
5.1 Rent...................................................................4
5.2 Business Taxes & Taxes on Improvements or Rent.........................5
5.2.1 Taxes Payable on Business and Improvements.........................5
5.2.2 Tenant to Reimburse Landlord.......................................5
5.2.3 Taxes Payable on Rent..............................................5
5.3 Real Estate Taxes......................................................5
5.3.2 Real Estate Taxes Payable..........................................6
5.3.3 Expenses for Contestation..........................................7
5.3.4 No Reduction in Rent...............................................7
5.4 Operating Expenses.....................................................7
5.4.1 Definitions........................................................7
5.4.2 Operating Expenses Payable.........................................9
5.4.3 Operating Expense Estimate.........................................9
5.4.4 Operating Expense Statement.......................................10
i
5.4.5 Payment for Final Period of Lease.................................10
5.5 Payment of Monies.....................................................10
5.5.1 When and Where to Send Monies.....................................10
5.5.2 For a Fraction of a Month.........................................10
5.5.3 Adjustments Between Estimated and Actual Amounts Payable..........10
5.5.4 Interest on Overdue Amounts.......................................10
5.5.5 No Offsets Against Rent...........................................11
5.5.6 On Termination of Lease...........................................11
5.6 Utilities.............................................................11
5.6.1 General Provisions................................................11
ARTICLE 6 - USE OF PREMISES.................................................11
6.1 General Use.........................................................11
6.2 Restrictions..........................................................11
ARTICLE 7 - UTILITIES AND SERVICES..........................................12
7.1 General Provisions....................................................12
7.1.1 Cleaning..........................................................12
7.1.2 Elevators.........................................................12
7.1.3 Electric Energy...................................................12
7.1.4 Drinking Water, Towels and Toiletries.............................13
7.1.5 Heating or Air-Conditioning.......................................13
7.2 Services for Special Equipment........................................14
7.3 Discontinuance of Services............................................14
ARTICLE 8 - ALTERATIONS. REPAIRS, CHANGES, ADDITIONS, IMPROVEMENTS..........15
8.1 General Provisions....................................................15
8.1.1 Consent of Landlord...............................................15
8.1.2 Building Standard Air Quality Control.............................15
8.1.3 Landlord's Prior Consent..........................................15
8.1.4 Tenant's Contractor...............................................15
8.1.5 Tenant Responsible for Cost of Improvements.......................16
8.1.6 Tenant Responsible for Construction of Improvements...............16
8.1.7 Additional Improvements...........................................16
8.1.8 Removal of Improvements...........................................16
8.2 No Allowance for Inconvenience........................................16
8.3 Connections to Electrical System......................................16
8.4 Landlord's Right to Perform...........................................16
8.5 Installation of Necessary Equipment...................................17
ARTICLE 9 - TENANT CARE AND RESPONSIBILITY..................................17
9.1 General Provisions....................................................17
9.2 Proceeds of Insurance.................................................18
9.3 Tenant's Responsibility...............................................18
9.4 Fire, Police and Health Departments' Regulations......................18
9.5 Fire Protection Equipment.............................................19
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9.6 Exhibitions, Signs or Advertisements Inside or Outside the Premises...19
9.7 Supervision Fee for Tenant Repairs....................................19
9.8 Privileges and Liens..................................................19
ARTICLE 10 - DESERTION AND SURRENDER........................................20
10.1 General Provisions...................................................20
ARTICLE 11 - ASSIGNMENT AND SUBLETTING......................................20
11.1 General Provisions...................................................20
11.2 Advertising the Premises for Subletting..............................20
11.3 Conditions Precedent to Any Assignment or Subletting.................21
11.4 Delays in Accepting Assignee or Subtenant............................21
11.5 Transfer to Assignee or Subtenant....................................21
11.6 New Lease with Assignee..............................................21
11.7 Assignment to Related or Associated Companies........................21
ARTICLE 12 - FIRE AND DESTRUCTION OF PREMISES...............................22
12.1
(1) Premises Wholly Unfit for Occupancy and Not Repairable Within 180
Days..................................................................22
(2) Premises Wholly Unfit for Occupancy and Repairable within 180 days22
(3) Premises Partially Damaged and Repairable within 180 Days.........22
12.2 Building Partially Destroyed or Damaged Affecting more than 20% of
Rentable Area.............................................................22
12.3 Insurance Proceeds...................................................23
12.4 Repair of Alterations, Improvements or Tenant's Property.............23
12.5 Where Tenant is at Fault.............................................23
ARTICLE 13 - NO RESPONSIBILITY OF LANDLORD..................................23
13.1 General Provisions...................................................23
13.2 Delay in Completion of Premises......................................24
13.3 Tenant Indemnification...............................................24
13.4 Special Permits......................................................24
ARTICLE 14 - RIGHT OF ENTRY.................................................25
14.1 General Provisions...................................................25
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14.2 Alteration of Locks..................................................25
ARTICLE 15 - COMPLIANCE WITH LAW............................................25
15.1 General Provisions...................................................25
ARTICLE 16 - INSURANCE REQUIREMENTS.........................................25
16.1 General Provisions...................................................25
16.2 Comprehensive General Liability and All Risk Insurance...............26
16.3 Failure of Tenant to Obtain Insurance................................26
16.4 Landlord Covenants to Insure.........................................26
ARTICLE 17 - MORTGAGES AND SUBORDINATION....................................26
17.1 General Provisions...................................................26
17.2 Landlord's Default under any Underlying Lease; Mortgage, Hypothec or
Deed......................................................................27
17.3 Request from Landlord to Tenant for Written Statement................27
17.4 Certificate from Tenant..............................................27
17.5 Assignment by Landlord...............................................28
ARTICLE 18 - EXPROPRIATION..................................................28
18.1 General Provisions...................................................28
ARTICLE 19 - WAIVER.........................................................28
19.1 General Provisions...................................................28
ARTICLE 20 - NOTICE AND DEMANDS.............................................29
20.1 By Landlord to Tenant................................................29
20.2 Tenant's Domicile....................................................29
20.3 By Tenant to Landlord................................................29
20.4 Prior to Commencement Date...........................................29
ARTICLE 21 - LANDLORD AND TENANT............................................29
21.1 Definition of Landlord...............................................29
21.2 Tenant Partnership...................................................30
21.3 Relationship Between Landlord and Tenant.............................30
ARTICLE 22 - BROKERAGE COMMISSION...........................................30
22.1 General Provisions...................................................30
ARTICLE 23 - SECURITY.......................................................30
23.1 To Secure Payment of Rent............................................30
ARTICLE 24 - EXPIRATION OF THE TERM OF THE LEASE............................30
24.1 Tenant's Notice to Landlord..........................................30
24.2 Tenant's Credit Rating...............................................31
ARTICLE 25 - FORCE MAJEURE..................................................31
25.1 General Provisions...................................................31
iv
ARTICLE 26 - GOVERNING LAW..................................................31
26.1 General Provisions...................................................31
ARTICLE 27 - PRIOR AGREEMENTS...............................................31
27.1 General Provisions...................................................31
27.2 Amendments of Lease..................................................32
ARTICLE 28 - RULES AND REGULATIONS..........................................32
28.1 Acts to Injure Premises or Persons...................................32
28.2 Preservation of Good Order and Cleanliness...........................32
28.3 Animals..............................................................32
28.4 Canvassing...........................................................32
28.5 Sidewalks, Entries, Passages, Elevators, etc.........................32
28.6 Advertising..........................................................33
28.7 Signs or Advertisements on the Building..............................33
28.8 Selling Articles or Carrying on Business other than that specifically
Provided for in lease.....................................................33
28.9 Workmen for Repairs..................................................33
28.10 Care of Premises....................................................33
28.11 Window Shades.......................................................33
28.12 Washrooms...........................................................33
28.13 Apparatus Requiring Permit..........................................34
28.14 Entering Building After Normal Office Hours.........................34
28.15 Safes and Heavy Equipment...........................................34
28.16 Rules and Regulations for Security of Building......................34
28.17 Further Rules and Regulations.......................................34
28.18 Access to Loading Area..............................................35
28.19 Keys................................................................35
28.20 Graphics............................................................35
28.21 Environmental.......................................................35
ARTICLE 29 - DEFAULT BY TENANT..............................................36
29.1 Events of Default....................................................36
29.2 Continuance of any Event of Default..................................36
29.3 Payment of Monies in Event of Default................................37
29.4 The exercise of any Right of Landlord................................37
29.5 No waiver by Landlord................................................37
29.6 Landlord's Right to enter Premises...................................37
29.7 No Limitation on Right to Distrain...................................38
ARTICLE 30 - MISCELLANEOUS..................................................38
30.1 Captions.............................................................38
30.2 No Registration......................................................38
30.3 Tenant's Acceptance of lease.........................................38
30.4 Successors and Assigns...............................................38
30.5 Early Occupancy......................................................39
30.6 Leasehold Improvements...............................................39
v
30.7 Leasehold Improvement Allowance......................................39
30.8 Parking..............................................................39
Schedules
A Description of Land
B Plan of Premises
C Definition of Rentable Area Proportion Formula
D Building Standard Installation Schedule
vi
THIS NET LEASE entered into as of _________________, 1997
BETWEEN:
XXXXX'X WHARF DEVELOPMENT LIMITED, a company duly incorporated under the
laws of Nova Scotia and having its Head Office in the City of Halifax, Nova
Scotia,
hereinafter called the "Landlord";
AND:
MENTOR NETWORKS INC., a body corporate,
hereinafter called the "Tenant";
ARTICLE 1- INTENT OF LEASE
1.1 General Provisions
It is the intent of the parties that this Net Lease be a lease that is
absolutely net to Landlord except as expressly hereinafter set out. Any amount
and any obligation as is not expressly declared herein to be that of Landlord
shall be deemed to be the obligation of Tenant to be performed by and at the
expense of Tenant.
ARTICLE 2- DEFINITIONS
2.1 In this Net Lease Agreement:
(1) "lease" - any reference to the "lease" shall mean this Net
Lease Agreement;
(2) "Phase I" - means the lands and buildings known as the Xxxxx'x
Wharf Tower, Xerox Building and Xxxxx'x parking garage
constructed at or near Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxx
Xxxxxx;
(3) "Phase II" - means the lands and buildings known as Xxxxx'x
Wharf Tower II including extension to the parking garage on
lands at or near Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxxxx;
(4) "Future Phases" - means such future phases of the Xxxxx'x
Wharf Development as may be constructed from time to time;
(5) "Land" -means the land more particularly described in Schedule
"A" attached hereto;
(6) "Building" - means the buildings, structures and improvements,
including parking garage constructed or to be constructed on
the Land;
1
(7) "Common Areas" - means all the facilities from time to time
provided and designated by Landlord to serve Phase I, Phase
II, Future Phases, the Building and the Land and shall
include, where applicable, and without limitation, roadways,
walkways, sidewalks, parking facilities, landscaped areas,
plazas, lobbies, washrooms available for use of tenants and/or
public, open or enclosed pedestrian malls, courts, arcades,
tunnels, bridges, truck courts, common loading areas and
delivery facilities, driveways, customer and service ramps,
stairways, escalators and elevators available for use by the
public or by tenants generally, fire detection, fire
prevention and communication facilities, common pipes,
electrical, plumbing and other common mechanical and
electrical installations, equipment and services, public
seating facilities, and all other areas and facilities from
time to time provided, designated or made available by
Landlord for the use of Tenant and other tenants or members of
the public, Landlord expressly reserving the right to
eliminate, substitute and/or rearrange any or all of the areas
so provided and designated without claim by Tenant in respect
of any such elimination, substitution or rearrangement;
(8) "Premises" - means that part of the Building which Tenant has
agreed to rent from Landlord and being that portion of the
Building substantially as outlined in red on the plan attached
hereto as Schedule "B";
(9) "Operating Year" - means such fiscal period as Landlord shall
adopt for the purposes of the accounts relating to the Land
and Building, provided that Landlord shall be permitted at any
time and from time to time to change the commencement and
termination dates of any Operating Year, so long as Tenant
shall not be unduly prejudiced by any such change;
(10) "Proportion" when used herein to refer to Tenant's share of
any tax, expense or cost shall be the percentage of the
aggregate of any such tax, expense or cost calculated as more
particularly set out in Schedule "C" attached hereto.
ARTICLE 3- DEMISE AND POSSESSION
3.1 Demise
Landlord in consideration of the rents, covenants and agreements herein
contained on the part of Tenant to be paid, kept and performed, does hereby
lease to Tenant and Tenant does hereby hire and take from Landlord the Premises,
together with a right of use, with others having a like right, to the Common
Areas.
2
3.2 Delivery of Premises
It is agreed between the parties hereto that the Premises are being
delivered to Tenant completed in accordance with Schedule "D" attached hereto
(or with the allowance to finish) all items set forth therein being hereinafter
sometimes collectively referred to as the "Alterations" which shall become the
responsibility of Tenant on and from the Commencement Date.
3.3 Notice of Defects
Taking possession of all or any portion of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises or such portion thereof
are in satisfactory condition on the date of taking possession, subject only to
latent defects and to deficiencies (if any) listed by notice in writing
delivered by Tenant to Landlord not more than 30 days after the date of taking
possession.
3.4 Substitution of Premises
At any time after the execution of this lease, Landlord may (subject to
Tenant's consent not to be unreasonably withheld) substitute for the Premises
other premises in the Building, excluding the Xerox Building (the New Premises)
in which event the New Premises shall be deemed to be the Premises for all
purposes hereunder, provided:
(1) The New Premises shall be similar to the Premises in area and in
appropriateness for use for Tenant's purposes;
(2) If Tenant is then occupying the Premises, Landlord shall pay the
expense of moving Tenant, its property and equipment to the New
Premises, and such moving shall be done at such times and in such
manner so as to cause the least inconvenience to Tenant;
(3) If Tenant is then occupying the Premises, Landlord shall give to
Tenant not less than 90 days' notice of such substitution, and if
Tenant is not occupying the Premises, Landlord shall give Tenant not
less than 30 days' prior notice of such substitution;
(4) Landlord shall, at its sole cost, improve the New Premises with
improvements substantially similar to those located in the Premises.
ARTICLE 4- TERM OF LEASE.
4.1 General Provisions
The term of this lease shall commence on July 1, 1997 and, unless the said
term shall sooner be terminated under the provisions hereof, shall expire at
12:00 noon on June 30, 2002.
3
4.2 Renewal Option
Provided it is not in default under this lease, and provided it gives
notice to Landlord at least 9 months prior to the expiry of the term, Tenant
shall have the option to renew this lease for a further term of 5 years under
the same terms and conditions as herein provided, except as follows:
(1) there shall be no right of further renewal;
(2) the provisions of Article 5.1 shall not apply to the renewal term and
rental for the renewal term shall be at the then current market renewal
rental rate for comparable space in the Building, such rental to be
mutually agreed to between Landlord and Tenant and failing agreement, to
be determined by reference to a single arbitrator, provided, however, that
notwithstanding anything else herein contained, the said renewal rent
shall not be greater than $10 per square foot per annum of rentable area
of the Premises. If Landlord and Tenant fail to concur in the appointment
of a single arbitrator, either party may serve the other with a written
notice to appoint an arbitrator and such appointment shall be made by a
court or a judge and the application of either party pursuant to the
provisions of the Arbitration Act of Nova Scotia. The cost of arbitration
shall be divided equally between Landlord and Tenant. In the event of
arbitration and if the decision of the arbitrator is not given on or
before the renewal date, Tenant shall continue to pay the rent at the rate
payable during the term which has just expired, which payment shall be
adjusted within 15 days following receipt of the arbitrator's decision;
and
(3) the provisions of Articles 30.5 and 30.7 shall not apply to the
renewal term.
ARTICLE 5- MONIES PAYABLE BY TENANT
5.1 Rent
Tenant covenants and agrees to pay to Landlord yearly throughout the term
of this lease an annual rent computed at the following rates per square foot of
rentable area of the Premises (rentable area being calculated as more
particularly set out in Schedule "C"), said annual rental being payable in equal
monthly installments in advance without set-off, compensation or reduction
whatsoever on the first day of each month during the term:
(1) for the first year of the term at the rate of $2.75 per square foot;
(2) for the second year of the term at the rate of $3.30 per square foot;
(3) for the third year of the term at the rate of $3.85 per square foot;
(4) for the fourth year of the term at the rate of $4.40 per square foot;
and
(5) for the fifth year of the term at the rate of $4.95 per square foot.
4
5.2 Business Taxes & Taxes on Improvements or Rent
5.2.1 Taxes Payable on Business and Improvements
Tenant shall pay all business taxes or other similar rates and taxes which
may be levied or imposed upon the Premises or the business carried on therein;
all other rates and taxes which are or may be payable by Tenant as tenant and
occupants thereof; on Tenant's fixtures, equipment and machinery; and any and
all taxes that may be levied upon the Improvements (as hereinafter defined in
Article 8.1)
5.2.2 Tenant to Reimburse Landlord
If by law, regulation or otherwise, business taxes or other similar rates
and taxes or taxes upon Tenant's fixtures, equipment, machinery or upon
Improvements are made payable by landlords or proprietors, or if the mode of
collecting such taxes and/or rates be so altered as to make Landlord liable
therefor instead of Tenant, Tenant shall repay to Landlord prior to the due date
but, in any event within 7 days after demand upon Tenant, the amount of the
charge imposed on Landlord as a result of such change, and shall save Landlord
harmless from any cost or expense in respect thereof.
5.2.3 Taxes Payable on Rent
If any business transfer tax, value-added tax, multi-stage sales tax,
sales tax, goods and services tax, blended or harmonized sales tax, or any like
tax is imposed on Landlord by any governmental authority on any rent (whether
fixed minimum rent, percentage rent, additional rent or any other type of rent)
payable by Tenant under this lease, Tenant shall reimburse Landlord for the
amount of such tax forthwith upon demand (or at any time designated from time to
time by Landlord) as additional rent. Landlord shall have the right if permitted
by law, to require Tenant to pay directly to any taxing authority or other
supplier of goods or services the amounts which may otherwise be payable by
Landlord but chargeable to Tenant under this lease.
5.3 Real Estate Taxes
5.3.1 Definitions
For the purposes of this Article:
(1) "Real Estate Taxes" means all taxes, rates and assessments, general
and special, levied or imposed with respect to the Building
(including any accessories and improvements therein or thereto) and
the Land and all improvements thereto including where applicable,
all taxes, rates, assessments and impositions, general and special,
levied or imposed for schools, public betterment, general or local
improvements.
If the system of real estate taxation shall be altered or varied
and/or any new tax or levy shall be levied or imposed on the
Building and/or the Land and/or the revenues therefrom and/or
Landlord in substitution for and/or in addition to Real Estate Taxes
5
presently levied or imposed on immovables in the city, town or
municipality in which the Building and Land are situate, then any
such new tax or levy shall be included within the term "Real Estate
Taxes" and the provisions of this Article 5.3 shall apply MUTATIS
MUTANDIS.
The amount of the Real Estate Taxes which shall be deemed to have
been levied or imposed with respect to the Building and the Land
shall be such amount as the legal authority imposing Real Estate
Taxes shall have attributed to the Building and the Land
respectively, or, in the absence of such attribution, or, if such
legal authority shall include other immovables other than the
Building and the Land in imposing such Real Estate Taxes, such
amount as Landlord in the exercise of reasonable judgment shall
establish.
(2) If in any year, the taxing authority has not fully assessed and
fully taxed the Building and Land as entirely completed and entirely
occupied by tenants having no special exemptions with respect to
Real Estate Taxes, then taxes shall be adjusted and determined by
including therein such additional amount as would have formed part
of Real Estate Taxes if the Building and Land had been fully
assessed and fully taxed as entirely completed and entirely occupied
by tenants having no special exemptions.
(3) Real Estate Taxes shall be determined without reference to, or
deduction for, any abatement, concession or reduction of taxes
provided or granted as an incentive to builders or developers and
Real Estate Taxes shall be adjusted and determined by including
therein the amount of any such concession, abatement or reduction.
5.3.2 Real Estate Taxes Payable
The rent payable during the term of this lease in respect of each
year shall be increased by an amount equal to the Proportion of Real
Estate Taxes attributable to such year. Tenant shall pay to Landlord, not
later than 10 days prior to the tax due date, or such other date as may be
specified in writing to Tenant by Landlord (hereinafter referred to as the
"Specified Date"), the amount of such increase in the annual rent.
At the option of Landlord, Landlord may at any time and from time to
time estimate the amount of increased rent as will become payable by
Tenant by the tax due date or Specified Date, and xxxx Tenant therefor,
and in such event Tenant shall pay to Landlord the full amount of such
estimate in equal monthly installments commencing with the first month
following such estimate and terminating on the tax due date or Specified
Date. Such monthly amounts when paid to Landlord shall be available
(without interest) as a credit against Tenant's obligations to Landlord
under this Article 5.3.
Any amounts payable by Tenant hereunder shall be adjusted on a pro
rata basis to reflect the actual commencement and termination dates of
this lease having regard to the period in respect of which the calculation
of Real Estate Taxes is made.
6
The obligations of the parties hereto to adjust pursuant to this
Article 5.3.2 for the final period of the lease shall survive the
expiration of the term of this lease.
Landlord shall furnish to Tenant upon the specific written request
of Tenant copies of all pertinent valuation and assessment notices and of
all pertinent tax bills and notices received by Landlord.
5.3.3 Expenses for Contestation
Tenant shall pay to Landlord as additional rent the Proportion of
any expenses, including legal, appraisal, administration and overhead
expenses, incurred by Landlord in obtaining or attempting to obtain a
reduction of any Real Estate Taxes. Real Estate Taxes which are contested
by Landlord shall nevertheless be included for purposes of the computation
of the liability of Tenant under Article 5.3.2 provided, however, that in
the event that Tenant shall have paid any amount of increased rent
pursuant to this Article 5.3 and Landlord shall thereafter receive a
refund of any portion of the Real Estate Taxes on which such payment shall
have been based, Landlord shall pay to Tenant the appropriate portion of
such refund after deduction of the aforementioned expenses.
Landlord shall have no obligation to contest, object to or to
litigate the levying or imposition of any Real Estate Taxes and may
settle, compromise, consent to, waive or otherwise determine in its
discretion any Real Estate Taxes without notice to, consent or approval of
Tenant.
5.3.4 No Reduction in Rent
Nothing contained in this Article 5.3 shall be construed at any time
so as to reduce the monthly installments of rent payable hereunder below
the amount stipulated in Article 5.1.
5.4 Operating Expenses
5.4.1 Definitions
For the purposes of this Article, "Operating Expenses" means the
aggregate of any and all expenses incurred by Landlord, without
duplication thereto, which are attributable to the maintenance, operation,
repair, supervision or replacement of the Building and the maintenance,
operation and supervision of the Land, provided that if the Building is
less than 95% occupied during any part of an Operating Year, Operating
Expenses shall mean the amount obtained by adjusting the actual Operating
Expenses for such Operating Year to a 95% building occupancy level, such
adjustment to be made by adding to the actual Operating Expenses during
such Operating Year such additional costs that would have been incurred if
the Building had been 95% occupied. Without in any way limiting the
generality of the foregoing, Operating Expenses shall include the
following:
(1) the cost of salaries, wages, medical, surgical and general welfare
benefits (including group life insurance) and pension payments for
employees of Landlord engaged in the maintenance, operation, repair,
7
security or replacement of the Building, payroll taxes, workmen's or
workers' compensation insurance, electricity (except as otherwise
payable by Tenant hereunder), steam, utility, taxes (not included in
Articles 5.2 and 5.3), water (including sewer rental), cleaning,
building and cleaning supplies, uniforms and dry cleaning, cleaning
of windows and exterior curtain wall, snow removal, repair and
maintenance of grounds, service contracts, telephone, telegraph and
stationery;
(2) the cost of heating, ventilating and air-conditioning the Building,
including without limitation the cost of operating, repairing,
maintaining, replacing and inspecting the machinery, equipment and
other facilities required for the heating, ventilating and
air-conditioning of the Building and the cost of providing condenser
water from cooling towers for heating, ventilating and
air-conditioning machinery and equipment;
(3) the cost of goods and services, supplied, used or incurred in the
operation, maintenance, repair, security, supervision, replacement
and management of the Building and Land, or in the provision of
services generally for the benefit of tenants of the Building and
their staff, the cost of providing hot and cold water, the cost of
maintenance of and repairs to the Building or services including
elevators, escalators, and any equipment, machinery or apparatus and
the cost of repair and replacement of windows and plate glass,
including exterior glass;
(4) business and water taxes and governmental impositions not otherwise
charged directly to tenants, such portion or portions of taxes on
capital as Landlord shall have allocated to the Building and Land,
accounting and auditing costs, and the fair rental value (having
regard to rentals prevailing from time to time for similar space) of
space occupied by Landlord's employees for administrative,
supervisory or management purposes relating to the Building and the
Land and of space occupied by a party or parties providing a service
generally for the benefit of tenants in the building and their staff
(such as, by way of example, a day care centre or fitness
facilities):
(5) the cost of operating and maintaining the Common Areas including
without limitation all costs and expenses of repairing, lighting,
cleaning, snow removal, garbage removal, decorating, supervising,
policing, replacing, striping, rental of music programme and
loudspeaker systems, and business taxes and governmental impositions
not otherwise charged directly to tenants; the cost of operating and
maintaining those of the Common Areas which serve more than one of
Phase I, Phase II and/or any Future Phases shall be allocated as
between phases on a pro rata basis based upon the rentable area
contained in each phase or such other basis as Landlord may
reasonably determine;
(6) the cost of any modification and additions to the Building and/or
the machinery and equipment therein and thereon where in the
reasonable opinion of Landlord such expenditure may reduce Operating
8
Expenses, or any additional equipment or improvements required by
law or in landlord's reasonable opinion for the benefit or safety of
Building users;
(7) the total annual amortization of capital (on a straight line basis
over the useful life or such other period as reasonably determined
by Landlord), and interest on the unamortized capital at a rate
equivalent to the lending rate actually charged or chargeable by
Landlord's bankers from time to time, of the cost of all machinery,
equipment, supplies, repairs. replacements, modifications and
improvements which in Landlord's reasonable opinion have an
estimated useful life longer than one fiscal year of Landlord and
the cost whereof has not previously been charged to Tenant;
(8) the actual costs of all insurance as may be carried by Landlord in
respect of, or attributable to, the Building and the Land or related
thereto including without limitation all risk insurance against fire
and other perils and liability regarding casualties, injuries and
damages, boiler and machinery insurance and rental income insurance;
(9) a management charge equal to 15% of such total costs incurred
provided, however, that Landlord shall not include in Operating
Expenses any depreciation except as specifically contemplated by
sub-paragraph 5.4.1(7).
5.4.2 Operating Expenses Payable
During each Operating Year Tenant shall pay to Landlord as
additional rent the Proportion of the Operating Expenses.
5.4.3 Operating Expense Estimate
Prior to the commencement of each Operating Year during the term,
Landlord may at its option estimate the amount of Operating Expenses for
such Operating Year or (if applicable) broken portion thereof, as the case
may be, and notify Tenant in writing of the amount of its Proportion of
Operating Expenses. The amounts so estimated shall be payable in equal
consecutive monthly installments in advance over such Operating Year or
(if applicable) broken portion thereof, such monthly installments being
payable on the same day as the monthly payments of rental. Landlord may,
from time to time, alter the Operating Year, in which case, and in the
case where only a broken portion of the Operating Year is included within
the term of this lease, the appropriate adjustment in monthly payments
shall be made.
From time to time during the Operating Year, Landlord may
re-estimate any of the foregoing on a reasonable basis for such Operating
Year or broken portion thereof, in which event Landlord shall notify
Tenant in writing of such re-estimate and fix monthly installments for the
then remaining balance for such Operating Year or broken portion thereof
such that, after giving credit for the installments paid by Tenant on the
9
basis of the previous estimate or estimates, the entire amount of its
Proportion of Operating Expenses will have been paid during such Operating
Year or broken portion thereof.
5.4.4 Operating Expense Statement
As soon as practicable after the expiration of each Operating Year,
Landlord shall make a final determination of Operating Expenses and the
amounts of the Proportion thereof for such Operating Year, or (if
applicable) broken portion thereof, and provide Tenant with an audited
statement of Operating Expenses; and Landlord and Tenant agree to
immediately make the appropriate readjustment and payments and repayments.
Notices by Landlord stating the amount of any estimate, re-estimate or
determination of Operating Expenses, or the amount of the Proportion of
Operating Expenses, or monthly installments payable, need not include
particulars of Operating Expenses. Provided, however, that upon request
made within a reasonable time after receipt of such notice Tenant shall be
entitled to inspect statements disclosing in reasonable detail the
particulars of Operating Expenses, and the calculation of the amount of
its Proportion of Operating Expenses and the books and records of Landlord
pertaining thereto.
5.4.5 Payment for Final Period of Lease
The obligations of the parties hereto to adjust pursuant to Article
5.4.4 hereof shall survive the expiration of the term of the lease for a
period not exceeding one year.
5.5 Payment of Monies
5.5.1 When and Where to Send Monies
All monies payable pursuant to this lease by Tenant shall be payable
immediately when due and shall be collectible as rent and shall be paid to
Landlord and/or its nominees at the head office of Landlord or at such
place in Canada as shall be designated from time to time by Landlord in
writing to Tenant.
5.5.2 For a Fraction of a Month
If the term of this lease begins on any day of the month other than
the first day, then any amounts payable hereunder for such month shall be
pro rated and paid on a per diem basis.
5.5.3 Adjustments Between Estimated and Actual Amounts Payable
Upon final determination of the actual amounts payable by Tenant the
parties shall adjust any differences between the estimated amounts so paid
and the actual amounts payable.
5.5.4 Interest on Overdue Amounts
Tenant shall pay interest at a rate per annum, which shall be the
lesser of:
10
(1) the maximum legal rate of interest permissible in the applicable
jurisdiction,
or
(2) 3 percentage points above the prime lending rate established from
time to time at the principal branch in the city of Landlord's bank,
compounded monthly on all rent and/or all amounts collectible as rent
under the terms of this lease and not paid when due.
5.5.5 No Offsets Against Rent
Tenant hereby waives and renounces any and all existing and future
claims, set-off and compensation against any rent or other amounts due
hereunder and agrees to pay such rent and other amounts regardless of any
claim, set-off or compensation which may be asserted by Tenant or on its
behalf.
5.5.6 On Termination of Lease
Upon any termination of this lease, as a condition precedent to
being permitted by Landlord to vacate the Premises, Tenant shall, in
addition to all other amounts as it is obliged to pay hereunder, pay to
Landlord such amount as is estimated by Landlord to represent that portion
of the aggregate amount of Real Estate Taxes and Operating Expenses
payable and to become payable by Tenant in virtue of Articles 5.3 and 5.4
hereof, as has not yet been paid.
5.6 Utilities
5.6.1 General Provisions
Tenant shall be solely responsible for and promptly pay all charges
for water, gas, electricity, and any other utility used or consumed in the
Premises, provided there shall be no duplication of charges to Tenant for
utilities.
ARTICLE 6 - USE OF PREMISES
6.1 General Use
The Premises hereby leased shall be used and occupied by Tenant solely for
the purpose of a software company and general office purposes and related
activities and for no other purpose.
6.2 Restrictions
And in particular and by way of further restriction to the specific
purposes herein set forth Tenant shall not carry on in the Premises (i) a
restaurant, cafeteria or cocktail lounge business and/or the sale and/or
delivery of food and/or beverages; or (ii) any other activity restricted by the
rules and regulations hereof.
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ARTICLE 7 - UTILITIES AND SERVICES
7.1 General Provisions
Landlord covenants and agrees that, so long as Tenant shall not be in
default hereunder:
7.1.1 Cleaning
Landlord shall, 5 days per week, except holidays, cause the office
portion of the Premises, excluding storage areas, to be cleaned in
accordance with building standards.
7.1.2 Elevators
Landlord will provide and maintain in working order automatic
passenger elevators for operation between the hours of 7:00 A.M. and 6:00
P.M. for each business day, except Saturdays when the hours shall be from
7:00 A.M. to 12:00 noon, and one such passenger elevator will be subject
to call at all other time. Landlord to continue such provision.
Freight service will be provided at such hours as Landlord may
designate from time to time, and shall be subject to a charge as
determined from time to time by Landlord.
Tenant shall have the use of the elevators in common with others but
Landlord shall not be liable for any damage caused to Tenant and its
officers, agents, employees, servants, visitors or licensees by such other
using the elevators in common.
7.1.3 Electric Energy
(1) Landlord, subject to its ability to obtain the same from its
principal supplier and to the needs of Landlord and co-tenants,
shall cause the Premises to be supplied with electric current for
lighting and power. Landlord shall permit its wires and conduits,
(being normal office lighting and duplex receptacles) to be used for
such purpose. Tenant's use of electric current shall never exceed
the safe capacity of existing electric wiring on, and supplying the
Premises.
Any special wires and conduits for Tenant's special equipment shall
be supplied and installed by Tenant at its expense.
Tenant agrees to receive power for the purpose of lighting and
normal office use from Landlord, the cost of which will be included in the
Operating Expenses of the Building. Should Tenant require power in excess
of that required for a normal office operation, Tenant agrees to pay for
such additional power and such amount shall be collectible as rent. The
amount shall be payable by Tenant monthly, and shall be calculated in such
a manner that it shall not exceed the amount that would have been payable
for the said electricity had Tenant been charged directly for the
electricity at the rate fixed by the authority providing the same. The
12
charge to Tenant for this electricity may vary from time to time in
accordance with changes in the rate charged to Landlord. Any rental so
collected will be credited to the total light and power expense of the
Building prior to determining a Tenant's Proportion of Operating Expenses.
The cost of any required sub-meters and the installation thereof
shall be at Tenant's expense.
The obligation of Landlord hereunder shall be subject to any rules
or regulations to the contrary of the authority providing electricity or
any other municipal or governmental authority.
(2) Tenant agrees to pay the cost, including installation, of all
electric light bulbs, tubes and ballasts used to replace those installed
in the Premises at the commencement of the term and the cost of cleaning,
maintenance and repair of the fluorescent fixtures as may be from time to
time required by Landlord in accordance with prudent building management
practices and Landlord shall at its option have the exclusive right to
provide and carry out at Tenant's expense such installations, maintenance,
repair, relamping and destaticizing at reasonably competitive rates.
(3) Any electrical energy consumed in the Premises in excess of 2.3
xxxxx per square foot multiplied by 60 hours per week, multiplied by the
rentable area of the Premises, shall be billed to and paid for by Tenant.
7.1.4 Drinking Water, Towels and Toiletries
Landlord will provide to Tenant, its agents, servants, employees and
invitees the right of access and use in common with other tenants of the
Building to the toilet and washroom facilities in the Building and to keep
the same in good working order and supplied with water and to have the
same repaired with all reasonable diligence whenever such repairs are
necessary, and to furnish soap, towels, toilet tissue and hot and cold
water for lavatory, drinking and cleaning purposes, drawn through fixtures
installed by Landlord, subject to its ability to obtain same from its
principal supplier.
7.1.5 Heating or Air-Conditioning
Landlord will provide, by operation of the heating or
air-conditioning system between the hours of 7:00 A.M. and 6:00 P.M. of
each business day, except Saturdays which shall be between the hours of
7:00 A.M. and 12:00 noon, and except Sundays and holidays, a constant
supply of air that is filtered and either heated or cooled as conditions
may require, subject to the following conditions and provisions:
Landlord shall be under no obligation to operate the
air-conditioning system in excess of what may be, in its opinion,
reasonable and normal in the circumstances and, in any event, and without
prejudice to the foregoing, Landlord shall be deemed to have fully
satisfied its obligation under this Article 7.1.5 if it shall when the
exterior temperature is higher than 90 degrees F. maintain a maximum
interior temperature 10 degrees F. less and when the exterior temperature
is not higher than 90 degrees F. and not lower than -20 degrees F.,
13
maintain an interior temperature between 70 degrees F. and 80 degrees F.
and, when the exterior temperature is lower than -20 degrees F. maintain a
minimum interior temperature 90 degrees F. higher than the exterior
temperature, provided always, however that the obligations of Landlord
hereunder shall be conditional upon the following:
(1) Tenant keeping an exterior windows closed at all times and keeping
all registers free from obstruction so as to permit the proper flow
and circulation of air therefrom;
(2) the average amount of electrical energy consumed by lights and
machines in the Premises not exceeding 2.3 xxxxx per square foot;
(3) the occupancy of the Premises not exceeding one person per hundred
square feet of useable space.
All individual controls required by Tenant, except those set forth
in the attached Schedule "D" shall be installed at Tenant's expense.
In case Landlord deems it necessary to run portions of the system
through the Premises in order to serve other tenants, Tenant shall permit
Landlord and its agents and contractors to perform such work in the
Premises.
Should Tenant require heating and/or air-conditioning at any time
other than specified above, such service if supplied, shall be at the
entire cost of Tenant.
7.2 Services for Special Equipment
Nothing contained in this lease shall be deemed to create any obligation
of landlord to furnish electricity, heating, air-conditioning or any other
services to Tenant to the extent these are required by the use in the Premises
of special equipment such as computers or other electrical or similar equipment.
7.3 Discontinuance of Services
Landlord shall be privileged, without liability or obligation to Tenant,
and without such action constituting an eviction of Tenant, to discontinue or
modify any services required of it under this Article 7 or elsewhere in this
lease during such times as may be necessary, or as Landlord may deem advisable
by reason of accident, or for the purpose of effecting repairs, replacements,
alterations or improvements. Without limiting the foregoing, Landlord shall not
be liable to Tenant for failure for any reason to supply the said services or
any of them, Landlord however, undertaking to correct any such failure with
reasonable diligence.
14
ARTICLE 8 - ALTERATIONS. REPAIRS, CHANGES, ADDITIONS, IMPROVEMENTS
8.1 General Provisions
8.1.1 Consent of Landlord
Landlord and Tenant agree that any and all alterations, repairs,
changes, additions or improvements (hereinafter collectively referred to
as the "Improvements") to the Premises, including without restricting the
generally of the foregoing, any Improvements to the heating, ventilating
and air-conditioning systems (HVAC Systems) serving the Premises must
comply with Landlord's Building Standard, including without restricting
the generality of the foregoing Landlord's Building Standard Air Quality
Control.
8.1.2 Building Standard Air Quality Control
Tenant shall not, prior to or during the term of this lease, make
any Improvements to the Premises including the HVAC System without the
prior written consent of Landlord. Any Improvements to the Premises made
by Tenant from time to time shall at all times include such Improvements
to the HVAC System as may be required to maintain Landlord's Building
Standard Air Quality Control.
For purposes of this Article 8.1.2, Improvements to the Premises
requiring modification to the HVAC System shall include any modifications
from time to time to the approved office layout for the Premises to which
the HVAC System has been designed by way of partitions, personnel and
equipment changes or otherwise, and the HVAC System shall be altered to
suit such modified Premises accordingly.
8.1.3 Landlord's Prior Consent
All plans for Improvements, including engineering designs and plans,
including Improvements to the HVAC System must have prior approval and
written consent of Landlord before the commencement of work. All such
Improvements shall be done at Tenant's expense by such contractor or
contractors as Tenant may select subject to Landlord's approval. Landlord
shall also have the right to have any such work supervised by its
architects, engineers, contractors and workmen at Tenant's expense.
8.1.4 Tenant's Contractor
In the event that any contractor is not satisfactory to Landlord, or
is causing, or in Landlord's reasonable opinion is likely to cause, labour
trouble in the Building, Landlord shall have the right to require that
such contractor cease or refrain from doing any work in the Premises and
upon receipt of written notice from Landlord, Tenant agrees to disallow
such contractor from entering the Premises. Landlord shall also have the
right to require that any contractor carry property damage and public
liability insurance in an amount acceptable to Landlord and in no event
less than $1,000,000 for its operations in the Building. The work
necessary to perform any improvements or repairs shall be performed at
such times and in such a manner as to not unreasonably interfere with
other tenants.
15
8.1.5 Tenant Responsible for Cost of Improvements
The cost of the Improvements shall be the sole responsibility of
Tenant and if any payment in respect thereof shall be made by Landlord the
same shall be immediately repayable to Landlord by Tenant and collectible
as additional rent. Landlord shall not, for any reason whatsoever, be
liable for any damage arising from or through any defects in the said
work.
8.1.6 Tenant Responsible for Construction of Improvements
Except to the extent of Landlord's work as set out in Schedule "D"
Tenant shall be fully responsible for the cost of all Improvements to the
Premises including, without restriction, the engineering cost of designing
the electrical, heating, ventilating and air conditioning systems for the
Premises, utilizing engineers as Tenant may select subject however, to
Landlord's approval.
8.1.7 Additional Improvements
If Tenant constructs Improvements beyond those constructed at the
time of Tenant's initial occupancy of the Premises, Tenant shall pay to
Landlord an amount equal to Landlord's cost, if any, incurred in
coordination and inspection with respect to such Improvements.
8.1.8 Removal of Improvements
Any Improvements made to the Premises shall not be removed either
before or after the termination of this lease without the consent or
request of Landlord.
8.2 No Allowance for Inconvenience
There shall be no allowance to Tenant for diminution of rental value and
no liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord, Tenant or others making or failing to
diligently make any repairs, alterations, additions or improvements in or to any
portion of the Building or the Premises or in and to the fixtures, equipment or
appurtenances thereof.
8.3 Connections to Electrical System
Any connection of apparatus to the electrical system other than a
connection to an existing base receptacle, any connection of apparatus to the
plumbing lines, or any connection to the heating and/or the air-conditioning
system shall be deemed to be an Improvement within the meaning of this Article
8.
8.4 Landlord's Right to Perform
In the event that Tenant should fail to carry out its obligations
hereunder to the satisfaction of Landlord, Landlord shall perform such
maintenance and repairs it considers necessary from time to time, the costs of
16
which shall be the sole responsibility of Tenant and if any payment in respect
thereof shall be made by Landlord then a sum equal to the amount so paid shall
forthwith become due and payable by Tenant to Landlord and if Tenant shall
neglect or refuse to pay such amount on demand, any such cost or expense to
Landlord shall be recoverable as additional rent.
8.5 Installation of Necessary Equipment
Landlord shall have the right to install and maintain in the Premises
whatever is reasonable, useful or necessary for the equipment, use and
convenience of the Building or other tenant, and Tenant shall have no claim
against Landlord in respect thereof provided the same does not interfere with
Tenant's enjoyment of the Premises.
ARTICLE 9 - TENANT CARE AND RESPONSIBILITY
9.1 General Provisions
Except as otherwise specifically provided in this lease:
(1) Tenant shall be solely responsible for, and pay the cost of all
repairs of every nature and kind to the Premises other than
maintenance, repairs and rebuilding thereof which in the reasonable
opinion of Landlord would constitute major structural repairs to the
Building; and
(2) Tenant shall pay the cost in the Proportion set forth in Article
2.1(10) hereof for all other repairs of every nature and kind
(including major structural repairs) to the structural elements of
the Building, as effected by Landlord in the following categories:
(a) repairs, maintenance and replacement of every nature to the
Building;
(b) modernization and improvements to the Building,
(i) where in the reasonable opinion of Landlord any such
expenditure may reduce the annual Operating Expenses to
be paid by tenants, or
(ii) additional equipment or improvements required by law or
in Landlord's reasonable opinion for the safety of
Building users,
and without limiting the generality of the foregoing, Tenant shall
take care of the Premises and the Alterations and improvement
therein and, at the expiration or other termination of the term of
this lease shall surrender the Premises, including the Alterations
and Improvements in as good condition as reasonable use will permit.
Tenant shall give to Landlord immediate verbal and prompt written
notice of any accident to or defect in the water pipes, steam pipes,
17
heating or air-conditioning equipment, electric light, elevators,
wires or other services of any portion of the Premises.
9.2 Proceeds of Insurance
Landlord shall make all reasonable attempts to utilize the proceeds of
insurance as well as to exercise any and all reasonable recourses available to
Landlord against any contractor, builder, supplier or any third party in order
to reduce Tenant's liability for repairs, maintenance, replacements,
modernization and improvements, provided however, that Tenant shall
notwithstanding any such proceedings advance the amounts required to be paid by
Tenant hereunder and to receive its proportion of any reimbursement so obtained
by Landlord, and provided further that Tenant shall advance its proportionate
share being the Proportion utilized in Article 2.1(10) of costs and expenses of
any legal action as landlord may institute against any such party.
Landlord shall have no obligation to litigate any such claim and may
settle, compromise, consent to, waive or otherwise determine in its discretion
any claim without notice to, consent or approval of Tenant.
9.3 Tenant's Responsibility
Tenant shall be solely responsible for any and all injury and damages
suffered by Landlord and/or Tenant and/or co-tenants or other occupants of the
Building and their respective officers, agents, employees, servants, visitors,
contractors, subcontractors and suppliers, and for any and all injury or damage
to the Building and/or to the Premises, and/or the Alterations, and/or the
Improvements, and/or the furnishings, fixtures, partitions or any equipment or
merchandise (including damage caused by the overflow or escape of water, steam,
gas, electricity or other substance, or the falling of any substance), caused or
occasioned by Tenant, or the officers, agents, employees, servants, visitors,
contractors, subcontractors and suppliers of Tenant, and whether due to
negligence or careless operation or otherwise. Any and all such injury and
damages may be repaired by landlord at the expense of Tenant.
9.4 Fire, Police and Health Departments' Regulations
Tenant shall not do, or permit anything to be done on or about the
Premises or the Building or the Land which may injure or obstruct the rights of
Landlord, or of co-tenants or other occupants of the Building, or of owners or
occupants of adjacent or contiguous property, or do anything which is a
nuisance, and Tenant shall not do or permit anything to be done on or about the
Premises or the Building or the Land or bring or keep anything therein which
will in any way conflict with the regulations of the Fire, Police, or Health
Departments or with the rules, regulations, by-laws or ordinances of any
governmental authority having jurisdiction over the Premises and/or the Building
and/or the Land, all of which Tenant undertakes to abide by and conform to.
18
9.5 Fire Protection Equipment
Tenant specifically undertakes to install and maintain at its cost such
fire protection equipment including, without limitation, emergency lighting as
is deemed reasonably necessary or desirable by Landlord or any governmental or
insurance body, and if so required by Landlord or any such body Tenant shall
appoint a warden to coordinate with the fire protection facilities and personnel
of Landlord.
9.6 Exhibitions, Signs or Advertisements Inside or Outside the Premises
No activity considered offensive or improper by Landlord shall be
permitted by Tenant in or about the Premises, the Building or the Land, and no
sign, advertisement, notice, awning or electrical display shall be placed on any
part of the outside or inside of the Premises and/or the Building and/or the
Land, or in any area near the same, except with the written consent of Landlord.
Landlord shall have the right in its absolute discretion to enter into the
Premises or the Building or the Land and to remove and/or eliminate anything not
in conformity herewith.
9.7 Supervision Fee for Tenant Repairs
Should Landlord deem it necessary to undertake any repairs or to do
anything which is required to be undertaken or done by Tenant under this lease
then Tenant shall pay to Landlord as a fee for supervision or carrying out of
Tenant's obligation an amount as additional rent equal to l0% of the cost of the
obligation, repairs or other work, carried out by or under the supervision of
Landlord, which amount shall be in addition to the cost of such obligation or
work and shall be collectible by Landlord from Tenant as if it were rental in
arrears.
9.8 Privileges and Liens
Tenant shall require that any contractors, prior to effecting any work on
the Premises, and if permitted under the governing law, provide Landlord with a
waiver and release of any and all privileges or rights of privilege or hens that
may then or thereafter exist for work done/or to be done or labour performed/or
to be performed or material furnished/or to be furnished under any contract or
subcontract; or in the event such waiver and release is not permitted or is not
obtained, furnish adequate security acceptable in all respects to Landlord to
guarantee the payment in full for all such work, labour or materials.
In any event, any mechanics' lien or privilege filed against the Premises
or the Building for work claimed to have been done or materials furnished to
Tenant shall be discharged by Tenant within l0 days thereafter at Tenant's
expense. For the purposes hereof, the bonding of such lien by a reputable
casualty or insurance company reasonably satisfactory to Landlord shall be
deemed the equivalent of a discharge of any such lien. Should any action, suit
or proceeding be brought upon any such lien for the enforcement or foreclosure
of the same, Tenant agrees, at its own cost and expense, to defend Landlord
therein, by counsel satisfactory to Landlord, and to pay any damages and satisfy
and discharge any judgment entered therein against Landlord.
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ARTICLE 10 - DESERTION AND SURRENDER
10.1 General Provisions
Tenant shall not leave the Premises unoccupied or vacant (and surrender of
the keys shall not be necessary in order that the Premises may be deemed
unoccupied or vacant) during the term of this lease. Acceptance of the surrender
of this lease shall not be effective unless made in writing and signed by
Landlord.
ARTICLE 11 - ASSIGNMENT AND SUBLETTING
11.1 General Provisions
Tenant shall not be entitled to assign, transfer or encumber this lease,
or any part thereof, or any of Tenant's title or interest therein or thereto, or
sublet the whole or any part of the Premises or permit the Premises or any part
thereto to be used by another without conforming to the terms of the next
paragraph hereof, and in any event without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Landlord's refusal
of consent shall be deemed reasonable (without in any way restricting Landlord's
right to refuse its consent on other reasonable grounds) where the assignee or
sub-tenant proposed by Tenant is then a tenant of the Building and Landlord has
or will have during the next ensuing six months suitable space for rent in the
Building. The consent of Landlord to any such assignment, transfer, encumbrance,
subletting and/or use shall not constitute a waiver of this Article, and shall
not be deemed to permit any further assignment, transfer, encumbrance,
subletting or use by another. Notwithstanding any such assignment, transfer,
encumbrance, subletting and/or use, Tenant shall remain jointly and severally,
without benefit of division or discussion, responsible for the payment of the
rental and the performance of the other obligations of Tenant under this lease.
The following shall be deemed to be an assignment or sublease for the
purpose of the lease and shall require the prior written consent of Landlord and
the prior compliance with all of the provisions of this Article 11:
(1) if any person other than Tenant has or exercises the right to
occupy, manage or control the Premises or any part thereof, or any
of the business carried on therein, other than subject to the direct
and full supervision and control of Tenant.
11.2 Advertising the Premises for Subletting
Tenant shall not print, publish, post, mail, display, broadcast or
otherwise advertise or offer the whole or any part of the Premises for purposes
of assignment, sublet, transfer or encumbrance, and shall not permit any broker
or other party to do any of the foregoing, unless the complete text and format
of any notice, advertisement or offer for any of the aforesaid purposes shall
have first been approved in writing by Landlord. Without in any way restricting
or limiting Landlord's right to refuse any text and format on other grounds, any
text and format proposed by Tenant shall not contain any reference to the rental
rate for the Premises.
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11.3 Conditions Precedent to Any Assignment or Subletting
As a condition precedent to any assignment of this lease or subleasing of
the whole or any part of the Premises:
(1) Tenant shall indicate to Landlord the bona fide assignee or
sub-tenant and the specific terms and conditions of such proposed
assignment or sublease; and
(2) Tenant shall first offer to assign or sublease, as the case may be,
to Landlord on the same terms and conditions and for the same rental
as provided in this lease.
11.4 Delays in Accepting Assignee or Subtenant
Landlord shall have a period of 30 days in which to accept the offer
referred to in Article 11.3(2) and if not so accepted Tenant shall have a period
of 60 days thereafter in which to assign or sublease on obtaining the prior
written consent of Landlord as hereinabove provided to the party and in
accordance with the terms and conditions so indicated to Landlord.
11.5 Transfer to Assignee or Subtenant
In the event that Tenant does not so assign or sublet within such 60 day
period, Landlord's consent to such assignment or subleasing shall be deemed null
and void and Tenant shall not be permitted to assign or sublet without again
conforming to all of the express provisions hereof.
11.6 New Lease with Assignee
As an alternative to giving its consent to any sublease or assignment of
lease, Landlord shall have the right to require the prospective sub-tenant or
assignee to execute a new lease with Landlord under the same terms and
conditions as contained in the offer from the bona fide assignee or subtenant,
and in such event Tenant agrees to guarantee to Landlord (on Landlord's standard
form of guarantee) the performance of all obligations of such sub-tenant or
assignee under the new lease. Tenant agrees to pay to Landlord reasonable costs
of administration incurred by Landlord to effect such new lease.
11.7 Assignment to Related or Associated Companies
Notwithstanding anything else contained in this Article 11, Tenant shall
have the right to assign or sublet to a related or associated company (meaning a
company related or associated to the Tenant within the meaning of the Income Tax
Act [Canada]) without Landlord's consent provided that such assignment or
subletting shall not relieve the Tenant of its obligations under this lease.
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ARTICLE 12 - FIRE AND DESTRUCTION OF PREMISES
12.1 If the Premises shall be destroyed or damaged by fire or other casualty,
insurable under fire and all risks insurance coverage, then:
(1) Premises Wholly Unfit for Occupancy and Not Repairable Within 180
Days
If in the opinion of Landlord the damage or destruction is such that
the Premises are rendered wholly unfit for occupancy or it is
impossible or unsafe to use and occupy them, and if in either event
the damage in the further opinion of Landlord (which shall be given
by written notice to Tenant within 30 days of the happening of such
damage or destruction) cannot be repaired with reasonable diligence
within 180 days from the happening of such damage or destruction,
either Landlord or Tenant may within 5 days next succeeding the
giving of Landlord's opinion as aforesaid, terminate this lease by
giving to the other notice in writing of such termination, in which
event the term of this lease shall cease and be at an end as of the
date of such destruction or damage and the rent and an other
payments for which Tenant is liable under the terms of this lease
shall be apportioned and paid in full to the date of such
destruction or damage. In the event that neither Landlord nor Tenant
so terminates this lease, rent shall xxxxx from the date of the
happening of the damage until the damage shall be made good to the
extent of enabling Tenant to use and occupy the Premises;
(2) Premises Wholly Unfit for Occupancy and Repairable within 180 days
If the damage be such that the Premises are wholly unfit for
occupancy, or if it is impossible or unsafe to use or occupy them
but if in either event the damage, in the opinion of Landlord (which
shall be given to Tenant within 30 days from the happening of such
damage) can be repaired with reasonable diligence within 180 days of
the happening of such damage, rent shall xxxxx from the date of the
happening of such damage until the damage shall be made good to the
extent of enabling Tenant to use and occupy the Premises;
(3) Premises Partially Damaged and Repairable within 180 Days
If in the opinion of Landlord, the damage can be made good as
aforesaid within 180 days of the happening of such destruction or
damage, and the damage is such that the Premises are capable of
being partially used for the purposes for which leased, until such
damage has been repaired, rent shall xxxxx in the proportion that
the part of the Premises rendered unfit for occupancy bears to the
whole of the Premises.
12.2 Building Partially Destroyed or Damaged Affecting more than 20% of
Rentable Area
If the Building is partially destroyed or damaged so as to affect 20% or
more of the rentable area of the Building containing the Premises, or in the
opinion of Landlord the Building is rendered unsafe, and whether or not the
Premises are affected, and in the opinion of Landlord (which shall be given by
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written notice to Tenant within 30 days of the happening of such damage or
destruction), cannot be repaired with reasonable diligence within 180 days from
the happening of such damage or destruction, Landlord may within 5 days next
succeeding the giving of Landlord's opinion as aforesaid, terminate this lease
by giving to Tenant notice in writing of such termination, in which event the
term of this lease shall cease and be at an end as of the date of such
destruction or damage and the rent and all other payments for which Tenant is
liable under the terms of this lease shall be apportioned and paid in full to
the date of such destruction or damage.
12.3 Insurance Proceeds
In the event of the termination of this lease as hereinabove provided, all
insurance proceeds excluding those relating to Tenant's property to the extent
Tenant is not indebted to Landlord under the provisions of this lease, shall be
and remain the absolute property of Landlord.
12.4 Repair of Alterations, Improvements or Tenant's Property
Nothing herein contained shall oblige Landlord to repair or reconstruct
any Alterations, Improvements, or property of Tenant.
12.5 Where Tenant is at Fault
If any damage or destruction by fire or other cause to the Building or
Premises, whether partial or not, is due to the fault or neglect of Tenant, its
officers, agents, employees, servants, visitors or licensees, without prejudice
to any other rights and remedies of Landlord and without prejudice to the rights
of subrogation of Landlord's insurer.
(1) Tenant shall be liable for all costs and damages,
(2) the damages may be repaired by Landlord at Tenant's expense,
(3) Tenant shall forfeit its right to terminate this lease as provided
in Article 12.1(1),
(4) Tenant shall forfeit any abatement of rent provided in this Article
12 and rent shall not xxxxx.
ARTICLE 13 - NO RESPONSIBILITY OF LANDLORD
13.1 General Provisions
Save as set our in Article 12, there shall be no abatement from or
reduction of the rent due hereunder nor shall Tenant be entitled to damages,
costs, losses or disbursements from Landlord regardless of the cause or reason
therefor (except where such cause of reason is Landlord's direct fault or
negligence) on account of fire or other casualty. Neither shall there be any
abatement or reduction of rent, or recovery by Tenant from Landlord on account
of partial or total failure of, damage caused by, lessening of supply of, or
stoppage of, heat air-conditioning, electric light, power, water, plumbing,
23
sewage, elevators, escalators or any other service, nor on account of any damage
or annoyance occasioned by water, snow, or ice being upon or coming through the
roof, skylight, trapdoors, windows, or otherwise, or by an defect or break in
any pipes, tanks, fixtures, or otherwise whereby steam, water, snow, smoke or
gas, leak, issue or flow into the Premises, nor on account of any damage or
annoyance occasioned by the condition or arrangements of any electric or other
wiring, nor on account of any damage or annoyance arising from any acts,
omissions, or negligence of co-tenants or other occupants of the Building, or of
owners or occupants of adjacent or contiguous property, nor on account of the
making of alterations, repairs, improvements, or structural changes to the
Building, or any thing or service therein or thereon or contiguous thereto
provided the same shall be made with reasonable expedition.
Without restricting the foregoing, Landlord shall not be liable for any
other damage to or loss, theft, or destruction of property, or death of, or
injury to, persons at any time in or on the Premises or in or about the
Building, howsoever occurring.
Providing that the foregoing paragraphs of this 13.1 shall not exempt the
Landlord for liability for its own negligence.
Notwithstanding the foregoing, liability of Landlord shall under no
circumstances extend to any property other than normal office furniture which
term, without limiting its normal meaning, shall not include securities, specie,
papers, typewriters, electric computers, or other machines or other similar
items.
13.2 Delay in Completion of Premises
Landlord shall not be liable for any damages suffered by Tenant should any
delay in the completion of the Premises in any way delay or inconvenience the
occupant thereof or the enjoyment of the Building or accessories or services.
13.3 Tenant Indemnification
Tenant covenants and agrees that it will protect, save and keep Landlord
harmless and indemnified against any penalty or damage or charge imposed for any
violation of any laws or ordinances occasioned by Tenant or those connected with
Tenant, and that it will protect, indemnify, save and keep harmless Landlord
against any and all damage or expense arising out of any accident or other
occurrence on or about the Premises causing injury to any person or property
(except to the extent Landlord may be otherwise liable therefor), and against
any and all damage or expense arising out of any failure of Tenant in any
respect to comply with and perform all the requirements and provisions of this
lease.
13.4 Special Permits
If any equipment, installation or apparatus to be used or installed by
Tenant in the Premises requires a permit from any governmental authority, Tenant
agrees to secure the required permit before installation at its expense and to
file a copy of such permit with Landlord.
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ARTICLE 14 - RIGHT OF ENTRY
14.1 General Provisions
Landlord may, at any reasonable time and without liability to Tenant,
enter the Premises to examine or to exhibit the same or to make alterations and
repairs, or for any purpose which it may deem necessary for the operation or
maintenance of the Building or its equipment. During the last 9 months of the
term of the lease or of its renewal, Tenant shall allow such person or persons
as may be desirous of leasing the Premises to visit the same on business days
between the hours of 9 A.M. and 5 P.M.
14.2 Alteration of Locks
Tenant shall install and maintain Landlord's building standard
locking/keying system in the Premises and shall not alter any locks on any doors
of the Premises without the prior written consent of Landlord. In no
circumstances shall the locks on any doors alter the building standard
locking/keying system to the intent that Landlord shall at all times have access
to the Premises by way of the building standard key.
ARTICLE 15 - COMPLIANCE WITH LAW
15.1 General Provisions
Tenant shall promptly and at its expense execute and comply with all laws,
rules, orders, ordinances and regulations of the Municipal, Provincial and
Federal authorities and of any department or bureau of any of them, and of any
other governmental authority having jurisdiction over the Premises, Tenant's
occupancy of the Premises or Tenant's business conducted thereon.
ARTICLE 16 - INSURANCE REQUIREMENTS
16.1 General Provisions
Tenant shall not do or commit any act upon the Premises or bring into or
keep upon the Premises any article which will affect the fire risk or increase
the rate of fire insurance or other insurance on the Building.
Tenant shall comply with the rules and requirements of the Insurers'
Advisory Organization of Canada or any successor body, and with the requirements
of all insurance companies having policies of any kind whatsoever in effect
covering the Building, including policies insuring against tort or delictual
liability.
In no event shall any flammable materials, except for kinds and quantities
required for ordinary office occupancy and permitted by the insurance policies
covering the Building, or any explosive whatsoever, be taken into the Premises
or retained therein.
Should the rate of any type of insurance on the Building be increased by
reason of any violation of this lease by Tenant, Landlord, in addition to all
25
other remedies, may pay the amount of such increase, and the amount so paid
shall become due and payable immediately by Tenant and collectible as additional
rent.
16.2 Comprehensive General Liability and All Risk Insurance
Tenant shall take out and keep in force during the term of this lease
comprehensive general liability insurance in amounts and with policies in form
satisfactory from time to time to Landlord and with insurers acceptable to
Landlord, the comprehensive general liability insurance in no event to be for
less than $2,000,000 inclusive limits and all risks insurance covering
furniture, fixtures and Improvements in an amount equal to the full insurable
value thereof. Copies of each insurance policy shall forthwith upon execution be
delivered to Landlord. Each such policy shall name Landlord as an additional
insured as its interest may appear and the comprehensive general liability
policy shall contain a cross liability clause. The cost or premium for each and
every such policy shall be paid by Tenant. Tenant shall obtain from the insurers
under such policies, undertakings to notify Landlord in writing at least 10 days
prior to any cancellation thereof.
16.3 Failure of Tenant to Obtain Insurance
Tenant agrees that if Tenant fails to take our or to keep in force such
insurance Landlord will have the right to do so and to pay the premium therefor
and in such event Tenant shall repay to Landlord the amount paid as premium,
which repayment shall be collectible as additional rent payable on the first day
of the next month following the said payment by Landlord.
16.4 Landlord Covenants to Insure
Landlord covenants and agrees to insure and cause the Building to be kept
insured to replacement value against all such risks as would be customary for a
prudent owner to insure against; provided, however, that it is understood that
Tenant shall contribute to the cost of such insurance as provided in this lease.
ARTICLE 17 - MORTGAGES AND SUBORDINATION
17.1 General Provisions
This lease and all rights of Tenant hereunder shall be subject and
subordinate at all times to any and all underlying leases, mortgages, hypothecs
or deeds of trust affecting the Building and/or the Land which have been
executed or which may at any time hereafter be executed, and any and all
extensions and renewals thereof and substitutions therefor. Tenant agrees to
execute any instrument or instruments which Landlord may deem necessary or
desirable to evidence the subordination of this lease to any or all such leases,
mortgages, hypothecs or deeds of trust. Any instrument to be signed by Tenant
pursuant to this paragraph 17.1 shall be prepared at the expense of Landlord.
17.2 Landlord's Default under any Underlying Lease; Mortgage, Hypothec or Deed
Tenant covenants and agrees that, if by reason of a default upon the part
of Landlord as lessee under any underlying lease in the performance of any of
the terms or provisions of such underlying lease or by reason of a default under
any mortgage, hypothec or deed of trust to which this lease is subject or
subordinate, Landlord's estate is terminated, it will attorn to the lessor under
such underlying lease or the acquirer of the Building pursuant to any action
taken under any such mortgage, hypothec or deed of trust, and will recognize
such lessor or such acquirer, as Tenant's Landlord under this lease.
Tenant waives the provisions of any statute or rule of law now or
hereafter in effect which may give or purport to give Tenant any right of
election to terminate this lease or to surrender possession of the Premises in
the event any such proceeding to terminate the underlying lease is brought be
the lessor under any such underlying lease or any such action is taken under any
such mortgage, hypothec or deed of trust and agrees this lease shall not be
affected in any way whatsoever by any such proceedings.
17.3 Request from Landlord to Tenant for Written Statement
Tenant agrees to execute and deliver, at any time and from time to time,
upon the request of Landlord or of the lessor under any such underlying lease,
or of the holder of any such mortgage, hypothec or deed of trust, any instrument
which may be necessary or appropriate to evidence such attornment.
Tenant will upon request of Landlord furnish to the lessor under any
underlying lease and/or to each creditor under a mortgage, hypothec or deed of
trust a written statement that this lease is in full force and effect and that
Landlord has complied with all its obligations under this lease and any other
reasonable written statement, document or estoppel certificate requested by any
such creditor. Landlord shall, at its own expense, prepare any instrument which
it wishes Tenant to sign pursuant to this paragraph 17.3.
17.4 Certificate from Tenant
Tenant, at any time and from time to time, upon not less than 10 days
prior written notice from Landlord, will execute, acknowledge and deliver to
Landlord and, at Landlord's request, addressed to any prospective purchaser,
ground or underlying lessor or mortgagee of the Building, a certificate of
Tenant saying:
(1) that Tenant has accepted the Premises, or, if Tenant has not done
so, that Tenant has not accepted the Premises and specifying the
reasons therefor;
(2) the commencement and expiration dates of this lease;
(3) that this lease is unmodified and in full force and effect, or if
there have been modifications, that the same is in full force and
effect as modified, and stating the modifications;
27
(4) whether or not there are then existing any defenses against the
enforcement of any of the obligations of Tenant under this lease
and, if so, specifying the same;
(5) whether or not there are then existing any defaults by Landlord in
the performance of its obligations under this lease, and, if so,
specifying the same;
(6) the dates, if any, to which the rent and other charges under this
lease have been paid; and
(7) any other information which may reasonably be required by any such
persons.
It is intended that any such certificate of Tenant delivered pursuant to
this Article 17.4 may be relied upon by any prospective purchaser, ground or
underlying lessor or mortgagee of the Building.
17.5 Assignment by Landlord
Landlord shall have the right to assign the lease or its right to rent and
additional rent to a lending institution as collateral security for a loan, and
in the event that such an assignment is given and executed by Landlord this
lease shall not be cancelled or modified for any reason whatsoever, except as
provided for, anticipated or permitted by the terms of this lease or by law
without the consent in writing of such lending institution. Tenant agrees that
it will, if and whenever required by Landlord, within 15 days of such written
request forwarded to Tenant by registered mail consent to and become a party to
any instrument or instruments permitting a mortgage, trust deed or charge to be
placed on the Building or Premises or any part thereof as security for any
indebtedness covered by the trust deed, mortgage or charge. Landlord is hereby
irrevocably appointed and constituted Tenant's representative for the purpose of
signing such document on behalf of Tenant.
ARTICLE 18 - EXPROPRIATION
18.1 General Provisions
If the whole or any part of the Premises, or the whole of the Building, or
so much thereof as shall in the opinion of the Landlord, render it commercially
undesirable to continue operation of the Building, be expropriated, condemned or
taken by any competent authority for any purpose whatsoever, Landlord shall have
the right, at its discretion, to terminate this lease upon notice in writing to
Tenant of at least 30 days. Tenant shall have no claim in damages or otherwise
against Landlord relating to or arising out of the expropriation or
condemnation, or arising out of the cancellation of this lease, nor shall
Landlord be obliged to contest any expropriation proceedings.
ARTICLE 19 - WAIVER
19.1 General Provisions
Failure of Landlord to insist upon strict performance of any of the
covenants or conditions of this lease or to exercise any right or option herein
28
contained shall not be construed as a waiver or relinquishment of any such
covenant, condition, right or option, but the same shall remain in full force
and effect. Tenant undertakes and agrees, and any person claiming to be a
subtenant or assignee undertakes and agrees, that the acceptance by Landlord of
any rent from any person other than Tenant shall not be construed as a
recognition of any rights not herein expressly granted, or as a waiver of any of
Landlord's rights, or as an admission that such person is, or as a consent that
such person shall be deemed to be, a subtenant or assignee of this lease,
irrespective of whether Tenant or said person claims that such person is a
subtenant or assignee of this lease. Landlord may accept rent from any person
occupying the Premises at any time without in any way waiving any right under
this lease.
ARTICLE 20 - NOTICE AND DEMANDS
20.1 By Landlord to Tenant
Any notice or demand given by Landlord to Tenant shall be deemed to be
duly given when served upon Tenant personally, or when left upon the Premises,
or when mailed, to Tenant at the address of the Premises on the third business
day following such mailing.
20.2 Tenant's Domicile
Tenant elects Domicle at the Premises for the purpose of service of all
notices, writs of summons or other legal documents in any suit at law, action or
proceeding which Landlord may take.
20.3 By Tenant to Landlord
Any notice or demand given by Tenant to Landlord shall be deemed to be
duly given when served upon Landlord personally or when mailed by registered
mail to Landlord at the address designated by Landlord for purposes of payment
of the rent hereunder on the third business day following such mailing.
20.4 Prior to Commencement Date
Prior to Commencement Date of this lease, any notice or demand shall be
deemed to be duly given by Landlord to Tenant when delivered personally to
Tenant, or when mailed to Tenant at its principal place of business in the City
of Halifax, or at its mailing address as made known by Tenant to Landlord.
ARTICLE 21 - LANDLORD AND TENANT
21.1 Definition of Landlord
The term "Landlord", as used in this lease, means only the owner for the
time being of the Building or the lessee of a lease of the whole Building, so
that in the event of any sale or sales or transfer or transfers of the Building,
or the making of any lease or leases thereof, or the sale of sales or the
transfer or transfers or the assignment or assignments of any such lease or
29
leases, Landlord shall be and hereby is relieved of all covenants and
obligations of Landlord hereunder and its shall be deemed and construed without
further agreement between the parties, or their successors in interest, or
between the parties and the transferee or acquirer at any such sale, transfer or
assignment, or lessee on the making of any such lease, that the transferee,
acquirer or lessee has assumed and agreed to carry out any and all of the
covenants and obligations of Landlord hereunder to Landlord's exoneration, and
Tenant shall thereafter be bound to and shall attorn to such transferee,
acquirer or lessee, as the case may be, as Landlord under this lease.
21.2 Tenant Partnership
If Tenant shall be a partnership (hereafter referred to as the "Tenant
Partnership"), each person who is presently a member of Tenant Partnership, and
each person who becomes a member of any successor Tenant Partnership hereafter,
shall be and continue to be liable for the full and complete performance of, and
shall be and continue to be subject to, terms and provisions of this lease,
whether or not he ceases to be a member of such Tenant Partnership or successor
Tenant Partnership.
21.3 Relationship Between Landlord and Tenant
It is understood and agreed that nothing contained in this lease nor in
any acts of the parties hereto shall be deemed to create any relationship
between the parties hereto other than the relationship of landlord and tenant.
ARTICLE 22 - BROKERAGE COMMISSION
22.1 General Provisions
As part of the consideration for the granting of this lease, Tenant
represents and warrants to Landlord that no broker or agent (other than any
broker or agent authorized in writing by Landlord) negotiated or was
instrumental in negotiating or consummating this lease. Any broker or agent of
Tenant shall be paid by Tenant.
ARTICLE 23 - SECURITY
23.1 To Secure Payment of Rent
Tenant covenants with Landlord to furnish the Premises with and maintain
therein a sufficient quantity of furniture, fixtures and other effects to secure
the payment of 6 months' rent.
ARTICLE 24 - EXPIRATION OF THE TERM OF THE LEASE
24.1 Tenant's Notice to Landlord
Tenant shall give Landlord 9 months' written notice prior to the date of
expiration of this lease of its intention to vacate the Premises, failing which
Landlord may at its option given written notice to Tenant within a period of not
less than 30 days before the date of expiration of this lease that this lease is
renewed for a further period of 12 months from the said date of expiration under
30
the same terms and conditions as herein set forth. If neither of the notices
hereinabove described is given the present lease shall xxxxxxxxx XXXX FACTO and
without or demand on the date stated in Article 4.1 of this lease and any
continued occupation of the Premises by Tenant shall not have the effect of
extending the period or of renewing the present lease for any period of time,
the whole notwithstanding any provisions of law and Tenant shall be presumed to
occupy the Premises against the will of Landlord who shall thereupon be entitled
to make use of any and all remedies by law provided for the expulsion of Tenant
and for damages, provided, however, that Landlord shall have the right at its
option in the event of such continued occupation by Tenant to give to Tenant at
any time written notice that Tenant may continue to occupy the Premises under a
tenancy from month to month in consideration of a rental equal to that provided
in Article 5.1 hereof plus 50% thereof, payable monthly and in advance and
otherwise under the same terms and conditions as are herein set forth.
24.2 Tenant's Credit Rating
Landlord shall have the right at its sole option and discretion to refuse
any renewal of this lease where Tenant's credit rating is not at least as good
at the time of such renewal as it was at the commencement of the term of this
lease; the obligations to prove such credit rating to the entire satisfaction of
Landlord at either or both of such times, to be incumbent on Tenant.
ARTICLE 25 - FORCE MAJEURE
25.1 General Provisions
Save for Tenant's monetary obligations, neither Landlord nor Tenant shall
be liable for failure to perform any of its obligations hereunder, or for
damages or loss to the other party if such failure, damage or loss is caused by
Acts of God or of the Queen's enemies, fire or other casualty, war, disaster,
riots, lockouts, FORCE MAJEURE, CAS FORTUIT or any similar circumstance, or
circumstances attributable to the other party or other emergency or cause beyond
the reasonable control of either party.
ARTICLE 26 - GOVERNING LAW
26.1 General Provisions
This lease shall be construed and governed by the laws of the Province of
Nova Scotia. Should any provisions of this lease and/or of its conditions be
illegal or not enforceable under the laws of such Province it or they shall be
considered severable and the lease and its conditions shall remain in force and
be binding upon the parties as though the said provision or provisions had never
been included.
ARTICLE 27 - PRIOR AGREEMENTS
27.1 General Provisions
Tenant acknowledges that the execution of this lease shall constitute a
conclusive presumption that all agreements and representations of every kind
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whatsoever, written or oral, previously entered into or made by the parties
hereto or their agents, shall be solely those set forth in this date.
27.2 Amendments of Lease
This lease may not be amended save by written instrument duly executed by
both Landlord and Tenant and the acceptance by Landlord of any plan, drawing,
specification and/or notice and/or the consent of Landlord to any such plan,
drawing, specification and/or notice, shall not be deemed to be an amendment to
this lease without the express written undertaking and consent of Landlord that
such acceptance and/or consent is to constitute an amendment.
ARTICLE 28 - RULES AND REGULATIONS
28.1 Acts to Injure Premises or Persons
Tenant shall not perform any acts or carry on any practices which may
injure the Premises or be a nuisance or menace to other tenants, or make or
permit any improper noises in the Building and shall forthwith upon request by
Landlord discontinue all acts or practices in violations of this clause and
repair any damage or injury to the Premises caused thereby.
28.2 Preservation of Good Order and Cleanliness
Tenant shall not cause unnecessary labour by reason of carelessness and
indifference to the preservation of good order and cleanliness in the Premises
and in the Building.
28.3 Animals
No animals shall be brought or kept in or about the Building.
28.4 Canvassing
Canvassing, soliciting and peddling in the Building is prohibited and
Tenant shall co-operate to prevent the same.
28.5 Sidewalks, Entries, Passages, Elevators, etc.
The sidewalks, entries, passages, elevators and staircases shall not be
obstructed or used by Tenant or its clerks, servants, agents, visitors or
licensees for any other purpose than ingress to and egress from the offices.
Nothing shall be thrown by Tenant, its clerk, servants, agents, visitors or
licensees, out of the windows or doors, or into the entries, passages, elevators
or staircases of the Building. Landlord reserves entire control of the
sidewalks, entries, elevators, staircases, or corridors and passages which are
not expressly included within this lease, and shall have the right to make such
repairs, replacements, alterations, additions, decorations and improvements and
to place such signs and appliances therein, as it may deem advisable, provided
that ingress to and egress from the Premises is not unduly impaired thereby.
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28.6 Advertising
Landlord shall have the right to prohibit any advertising of or by Tenant,
which in its opinion, tends to impair the reputation of the Building or its
desirability as a building for offices or for financial, insurance and other
institutions and businesses of a like nature. Upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
28.7 Signs or Advertisements on the Building
No sign, advertisement or notice shall be inscribed, painted or affixed on
any part of the outside or inside of the Building, except on the directories and
doors of offices, and then only of such size, color and style as Landlord shall
determine and approve.
28.8 Selling Articles or Carrying on Business other than that specifically
Provided for in lease
Tenant shall not sell or permit the sale at retail, of newspapers,
magazines, periodicals, theatre tickets, or such articles as are customarily
sold in tobacco shops, soda fountains or lunch counters, or any other goods,
wares or merchandise whatsoever, in or from Premises. Tenant shall not carry on
or permit or allow any employee or other person to carry on the business of
stenography, typewriting or any similar business in or from the Premises for the
service or accommodation of the occupants of any other portion of the Building,
or the business of a public xxxxxx shop or a manicuring or chiropodist business,
or any business other than that specifically provided for in this lease.
28.9 Workmen for Repairs
The workmen of Landlord must be employed by Tenant at Tenant's expense for
lettering, interior moving and other similar work that may be done on the
Premises.
28.10 Care of Premises
Tenant shall not xxxx, paint, drill into or in any way deface the walls,
ceilings, partitions, floors, wood, stone or iron work, or any other
appurtenance to the Premises.
28.11 Window Shades
Tenant shall not install window shades of any color other than the typical
colors from time to time approved by Landlord. Tenant shall not install curtains
or venetian blinds without the approval of Landlord. Tenant shall submit plans
to Landlord for prior approval before installing curtains or blinds in the
Premises.
28.12 Washrooms
The water and wash closets and urinals shall not be used for any other
purpose than the purposes for which they were respectively constructed, and the
expense of any breakage, stoppage or damage resulting from a violation of this
rule by Tenant or its clerks, agents, servants, visitors or licensees, shall be
borne by Tenant.
28.13 Apparatus Requiring Permit
If any apparatus used or installed by Tenant requires a permit as a
condition for installation, Tenant must file such permit with Landlord.
28.14 Entering Building After Normal Office Hours
Landlord shall have the right to determine the business hours for the
Premises. Until such time as Landlord may determine to the contrary, such
business hours shall be between the hours of 7:00 A.M. and 6:00 P.M. on business
days and between the hours of 7:00 A.M. and 12:00 noon on Saturdays. All persons
entering and leaving the Building at any time other than within such business
hours shall register in the books kept by Landlord at or near the night
entrance. Landlord will have the right to prevent any person from entering or
leaving the Building except during such business hours unless provided with a
key to the Premises to which such person seeks entrance, or a pass issued and
signed by Tenant upon the letterhead of Tenant and countersigned by Landlord.
Any persons found the Building at times other than such business ours without
such keys or passes will be subject to the surveillance of the employees and
agents of Landlord. This rule is made for the protection of Tenant, but Landlord
shall be under responsibility for failure to enforce it.
28.15 Safes and Heavy Equipment
Landlord shall have power to prescribe the weight and position of safes
and other heavy equipment, which shall be placed and stand on such plant strips
or skids as Landlord may prescribe, to distribute the weight properly. All
damage done to the Building by taking in or moving out a safe or any other
article of Tenant's equipment, or due to its being on the Premises, shall be
repaired at the expense of Tenant. The moving of safes shall occur only during
such hours as Landlord may from time to time establish and upon previous notice
to Landlord, and the persons employed to move the safes in and out of the
building must be acceptable to Landlord. Safes will be moved through the halls
and corridors only upon steel bearing plates. No freight or bulky matter of any
description will be received into the building or carried in the elevators,
except during hours approved by Landlord.
28.16 Rules and Regulations for Security of Building
Tenant agrees to observe all reasonable rules and regulations regarding
the security and protection of the Building and Tenants thereof including
without limitation the right of Landlord to search the person of and/or any
article carried by any person entering or leaving the building.
28.17 Further Rules and Regulations
Tenant covenants that the rules and regulations hereinabove stipulated,
and such other and further rules and regulations as Landlord may make and
communicate to Tenant, being its judgment needful for the reputation, safety,
care or cleanliness of the Building and Premises, or the operation, maintenance
or protection of the Building and its equipment, or the comfort of the tenants,
shall be faithfully observed and performed by Tenant, and by its clerks,
servants, agents, visitors and licensees. Landlord shall have the right to
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change said rules and to waive in writing, or otherwise, any or all of the said
rules in respect to any one or more tenants, and Landlord shall not be
responsible to Tenant for the non-observance or violation of any of said rules
and regulations by any other tenant or other person. The provisions of the rules
and regulations shall not be deemed to limit any covenant or provision of this
lease to be performed or fulfilled by Tenant.
28.18 Access to Loading Area
Landlord shall be entitled to control access to the truck loading area.
28.19 Keys
Landlord shall furnish Tenant, free of charge, with two keys for each
corridor door entering the Premises, and additional keys will be furnished at a
charge by Landlord equal to its cost, plus 15%, on an order signed by Tenant or
Tenant's authorized representative. All such keys shall remain the property of
Landlord. No additional locks shall be allowed on any door of the Premises
without Landlord's written permission, and Tenant shall not make or permit to be
made any duplicate keys, except those furnished by Landlord. Upon termination of
this lease, or any renewal thereof, Tenant shall surrender to Landlord all keys
for the Premises and give to Landlord the explanation of the combination of all
locks for safes, safe cabinets and vault doors, if any, in the Premises.
28.20 Graphics
Landlord shall provide and install, at Tenant's expense, all letters or
numbers on doors to the Premises; all such letters and numbers shall be in the
building standard graphics, and no others shall be used or permitted on the
Premises. In addition, Landlord shall maintain a directory board in the lobby of
the Building and provide reasonable identification of Tenant at Tenant's
expense.
28.21 Environmental
(1) Tenant agrees that all activities conducted on the Premises during
the term of this lease will comply with any and all laws,
regulations and ordinances relating to environmental matters and
the protection of the environment or other safety and health
concerns including, without restriction, the storage, handling,
disposal, discharge and or removal of any hazardous, nuclear or
toxic waste, substance or material. Tenant agrees to indemnify and
hold Landlord harmless from and against any loss, cost, damage or
expense arising out of or attributable to the failure of Tenant to
comply with its obligations under this paragraph 28.21.
(2) Landlord will have the right to inspect the Premises at all
reasonable times to determine Tenant's compliance with its
obligations under this Article 28.21 and if Tenant fails to meet
any of its obligations hereunder Landlord may perform, at Tenant's
expense, any lawful actions necessary to redress such default.
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(3) If, on termination of this lease Tenant is in default of any of its
obligations under this Article 28.21 Landlord may, at its option,
extend the term of this lease for such period of time as may be
reasonable to cure such default, in which event this lease shall
remain in full force and effect until such default has been cured.
(4) If Tenant's business includes in any way the storage, handling,
disposal, discharge and/or removal of any hazardous, nuclear or
toxic waste, substance or material, Tenant's liability insurance as
provided for in Article 16.2 shall specifically insure against its
obligations under this Article 28.21.
ARTICLE 29 - DEFAULT BY TENANT
29.1 Events of Default
Each of the following events (hereinafter called an "Event of Default")
shall be a default hereunder by tenant and a breach of this lease:
(1) if Tenant shall violate any covenant or agreement providing for the
payment of rent, including increased rent, or additional rent and
such violation shall continue for 5 days;
(2) if Tenant shall assign, transfer, encumber, sublet or permit the
use of the Premises by others except in a manner herein permitted;
(3) if Tenant shall be adjudicated a bankrupt or make any general
assignment for the benefit of creditors or take or attempt to take
the benefit of any insolvency or bankruptcy legislation;
(4) if a receiver or trustee shall be appointed for the property of
Tenant or any part thereof;
(5) if any execution be issued pursuant to a judgment rendered against
Tenant;
(6) save where otherwise permitted hereunder if any person other than
Tenant has or exercises the right to manage or control the
Premises, any part thereof, or any of the business carried on
herein other than subject to the direct and full supervision and
control of Tenant;
(7) if Tenant shall be in default in fulfilling any of the other
covenants and conditions of this lease and such default shall
continue for 15 days after written notice thereof from Landlord to
Tenant.
29.2 Continuance of any Event of Default
During the continuance of any such Event of Default, Landlord may, at its
option, give to Tenant a written notice of its intention to terminate this
lease, and the term hereof shall expire at noon upon the fifth day following the
36
date upon which such notice is given as fully and completely as if that day were
the date fixed for the expiration of the term without the necessity of further
notice or legal process whatsoever, provided always, however, that Tenant shall
remain liable to pay all amounts and damages then due or to become due,
including the liquidated damages as hereinafter provided. Tenant upon such a
termination of this lease shall thereupon quit and surrender the Premises to
Landlord or if not in possession shall no longer have any right to possession of
the Premises. Landlord, its agents and servants, may immediately, or at any time
thereafter, re-enter the Premises and dispossess Tenant, and remove any and all
persons and any or all property therefrom, either by summary dispossession
proceedings or by any suitable action or proceeding at law, or by force or
otherwise, without being liable to prosecution or damages therefor.
Tenant specifically acknowledges that without prejudice to any other right
or remedy Landlord may, after the giving of the notice and the expiration of the
5 day notice period hereinabove referred to, cease to furnish any services
hereunder and without limiting the foregoing may terminate or interrupt
electrical service to the Premises.
29.3 Payment of Monies in Event of Default
In any of the foregoing cases Tenant shall pay any and all monies payable
under this lease up to and including the day of such termination or re-entry,
whichever shall be the later.
In addition there shall immediately become due and payable in one lump sum
as liquidated damages and not a penalty the aggregate rental for a period of one
year, being the estimated time required for re-leasing the Premises or, if less
than one year remains of the term hereof, the aggregate of rental for the
unexpired portion of the term.
29.4 The exercise of any Right of Landlord
The exercise by Landlord of any right it may have hereunder or by law
shall not preclude the exercise by Landlord of any other right it may have
hereunder or by law.
29.5 No waiver by Landlord
Failure of Landlord to insist upon the performance of any covenant or
condition of this lease or to exercise any right or option contained in this
lease shall not be construed as a waiver or relinquishment of any such covenant,
condition, right or option. No violation of any covenant or condition of this
lease shall be valid unless in writing and signed by duly authorized persons on
behalf of Landlord. The acceptance of rent from or the performance of any
obligation by a person other than Tenant shall not be construed as an admission
by Landlord or any right, title or interest of such person as sub-tenant,
assignee, transferee or otherwise in the place of Tenant.
29.6 Landlord's Right to enter Premises
Tenant further covenants and agrees that, on Landlord becoming entitled to
re-enter upon the Premises under any of the provisions in this lease, Landlord,
in addition to all other rights, shall have the right to enter the Premises as
agent of Tenant, either by force or otherwise, without being liable for damages
37
or loss therefore and to relet the Premises as the agent of Tenant, and to
receive the rent therefor and, as the agent of Tenant, to take possession of any
furniture or other property on the Premises and to sell the same at public or
private sale without notice and to apply the proceeds of such sale and any rent
derived form reletting the Premises upon account of the rent under this lease
and Tenant shall be liable to Landlord for the deficiency, if any.
29.7 No Limitation on Right to Distrain
Tenant waives and renounces the benefit of any present or future statute
taking away or limiting Landlord's right to distress and covenants and agrees
that notwithstanding any such statute none of the goods and chattels of Tenant
on the Premises at any time during the term shall be exempt from levy by
distress for rent or any other charges; all goods and chattels brought by Tenant
onto the Premises shall be the unencumbered property of Tenant and they shall
not be subjected to any claim or other encumbrance at any time without the
written consent of Landlord. If Tenant shall leave the Premises leaving any rent
or other amounts owing under this lease unpaid, Landlord, in addition to any
other available remedy, may seize and sell the goods and chattels of Tenant at
any place to which Tenant or other person may have removed them in t he same
manner as if such goods and chattels have remained and been distrained upon the
Premises. Notwithstanding the provision of this paragraph 29.1 (7) and paragraph
23.1, Tenant shall have the right to grant the charges on its furniture and
equipment which have priority over the Landlord's right to distrain as security
for financing to lenders who are at arms' length with the Tenant.
ARTICLE 30 - MISCELLANEOUS
30.1 Captions
The captions and headings appearing in this lease have been inserted as a
matter of convenience and for reference only and, in no way define, limit or
enlarge the scope of meaning of this lease, nor of any provision hereof.
30.2 No Registration
Tenant covenants that it will not register this lease or any notice
thereof except in a form which shall be acceptable to the Landlord.
30.3 Tenant's Acceptance of lease
Tenant hereby accepts this lease of the above described Premises to be
held by it as Tenant subject tot he covenants, conditions and restrictions above
and in the Schedules attached hereto set forth.
30.4 Successors and Assigns
AND IT IS AGREED, that the provisions hereof shall be binding upon and
enure to the benefit of the successors, legal representatives and assigns of the
parties, except as may be hereinabove otherwise provided, and if there is more
than one tenant, the covenants herein contained on the part of Tenant shall be
construed as being several as well as joint, and where necessary, the singular
38
number shall be taken to include the plural, and the neuter, the masculine
and/or the feminine gender.
30.5 Early Occupancy
Notwithstanding the provisions of Articles 4.1 and 5.1, Tenant may occupy
the Premises prior to the Commencement Date subject to the following provisions:
(1) For the period from the commencement of occupancy to December 31,
1996, Tenant shall not be required to pay rent under Article 5.1,
Real Estate Taxes under Article 5.3 or Operating Expenses under
Article 5.4 other than actual cost of electricity and cleaning for
the Premises which Tenant shall pay and Tenant shall otherwise be
subject to the terms of this lease; and
(2) For the period from January 1, 1997 to the Commencement Date, Tenant
shall pay to Landlord the amount of $11,000 per month, payable in
advance on the first day of each month without set-off, compensation
or reduction whatsoever, which amount shall be inclusive of rent
under Article 5.1, Real Estate Taxes under Article 5.3 and Operating
Expenses under Article 5.4 and Tenant shall otherwise be subject to
the terms of this lease.
30.6 Leasehold Improvements
The parties agree that the Premises are being delivered by Landlord to
Tenant in their condition "as is" on the Commencement Date of the term and
Tenant shall be responsible for all leasehold improvements which shall include,
without limitation, all of construction costs, construction management costs,
engineering costs, all design/specification/plan preparation costs and all
telephone and data cabling costs. Landlord and Tenant agree that any and all
alternations, repairs, changes, additions or improvements to the Premises beyond
those specified in Schedule "D" shall at all items constitute Tenant improvement
for which Tenant shall assume full responsibility.
30.7 Leasehold Improvement Allowance
Landlord agrees to pay to Tenant a leasehold improvement allowance
computed at the rate of $8.00 per square foot or rentable area of the Premises
payable on the due execution of this lease by Tenant.
30.8 Parking
Landlord agrees to make available to Tenant during the initial term of
this lease up to 6 parking spaces in the parking garage forming part of the
Building at the monthly rate of $70 per parking space and up to 20 additional
parking spaces at the monthly rental rate in the parking Garage prevailing from
time to time. Landlord agrees to make available to Tenant during the renewal
term up to 26 parking spaces in the parking garage forming part of the Building
at the monthly rental rate in the parking garage prevailing from time to time.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed and signed
these presents as of the day and year first above written.
SIGNED, SEALED & DELIVERED
in the presence of:
XXXXX'X WHARF DEVELOPMENT LIMITED
/s/ Xxxxxx Xxxxxxxxx Per: /s/ Xxxxxxx Xxxxxxxx
-------------------------------- ------------------------------
Witness
Per: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------
/s/ Xxxxxxx X. Xxxxx MENTOR NETWORKS INC.
---------------------------------
Witness
Per: /s/ Xxxxxxx Xxxx
------------------------------
Per: /s/ Xxxxxxx Xxxx
------------------------------
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SCHEDULE "A"
BLOCK 1A
ALL that certain block of land and land covered by water on the northeastern
side of Upper Water Street in the City of Halifax, Province of Nova Scotia shown
as Block - 1A on a plan (Servant, Dunbrack, McKenzie & XxxXxxxxx Limited Plan
Number 14-309-0) of survey of Blocks 1A, 2A, 4A and 5, Resubdivision of Blocks
1, 2 and 4 and Lot P, Lands and Lands Covered by Water Conveyed to Xxxxx'x Wharf
Development Limited, City of Halifax and The Great-West Life Assurance Company
signed by Xxxxxxxx X. Xxxxxx, N.S.L.S.
dated April 27th, 1987 and described as follows:
BEGINNING on the northeastern official street line of Upper Water Street at a
point distant 1,211.55 feet on a bearing of N 19(degree) 16' 15" W from Nova
Scotia Coordinate Monument Number 4819;
THENCE N 49(degree) 46' 23" W, 109.26 feet along the northeastern official
street line of Upper Water Street to a southern corner of Block - 2A;
THENCE N 43(degree) 07' 13" E, 190.36 feet along a southeastern boundary of
BlocK - 2A to an eastern corner thereof;
THENCE N 46(degree) 52' 47" W, 83.33 feet along a northeastern boundary of Block
- 2A to an angle therein;
THENCE N 43(degree) 07' 13" E, 130.44 feet along a southeastern boundary of
BlocK - 2A to an angle therein;
THENCE N 88(degree) 07' 13" E, 52.84 feet along a southern boundary of Block -
2A to an angle therein;
THENCE S 46(degree) 52' 47" - E, 137.21 feet along a southwestern boundary of
BloCK - 2A to its intersection with the northwestern boundary of Block S;
THENCE S 48(degree) 14' 10" W, 109.76 feet along the northwestern boundary of
BloCK S to an angle therein;
THENCE S 41(degree) 42' 49" E, 49.46 feet along the southwestern boundary of
BlocK S to an angle therein;
THENCE S 48(degree) 17' 06" W, 239.85 feet along the northwestern boundary of
BloCK S to the place of beginning.
CONTAINING 52,142 square feet.
ALL bearings are Nova Scotia Coordinate Survey System Grid Bearings and are
referred to Central Meridian, 64(degree) 30' West.
A southeastern portion of the above described Lot 1A as shown on the above
referred to plan being subject to View Plane No. 2 restrictions, as defined by
the Zoning By-law of the City of Halifax.
SUBJECT also to Easement P lying across the southern portion of the above
described Block 1A as shown and mathematically delineated on the above referred
to plan and containing an area of 1,119 square feet. Said Easement P being the
subject of an Agreement recorded at the Registry of Deeds Office for the County
of Halifax in Book 4043 at Page 151.
EXCEPTING and reserving out of the foregoing Block 1A that portion thereof
described as Parcel C and more particularly described as follows:
2
ALL that certain parcel of land on the northeastern side of Upper Water Street
in the City of Halifax, Province of Nova Scotia Shown as Parcel - C on a plan
(Servant, Dunbrack, McKenzie & XxxXxxxxx Ltd. Plan No. 14-453-0) of survey of
Blocks 2B and 2C and Parcels - A, B and C, Subdivision of Block 2A and Portions
of Blocks 1A & 3, Lands Conveyed to The Great-West Life Assurance Company and
000000 Xxxxxx Limited signed by Xxxxxxxx X. Xxxxxx, N.S.L.S. dated September
1st, 1989 and described as follow:
BEGINNING on the northeastern official street line of Upper Water Street at a
southern corner of Parcel - B;
THENCE N 43(degree) 07' 13" E, 10.00 feet along the southeastern boundary of
Parcel - B to a western corner of Remaining Portion of Block - 1A lands as
conveyed to The Great-West Life Assurance Company and 000000 Xxxxxx Limited by
Indenture recorded at the Registry of Deeds for the County of Halifax in Book
3706 at Page 762 (Portion thereof);
THENCE S 03(degree) 19' 50" E, 13.78 feet along the western boundary of
Remaining Portion of Block - 1A to its intersection with the northeastern
boundary of Upper Water Street;
THENCE N 49(degree) 46' 23" W, 10.00 feet along the northeastern boundary of
UppeR Water Street to the place of beginning.
CONTAINING 50 square feet.
ALL bearings are Nova Scotia Coordinate Survey System Grid Bearings and are
referred to Central Meridian, 64(degree) 30' West.
THE above described Parcel - C being part of Block 1A as shown on the above
referred to plan.
BLOCK 3 AND SPATIAL ELEMENT SE-3A
ALL that certain block of land on the northeastern side of a Service Road of the
Xxxxxxxx Street Interchange in the City of Halifax, Province of Nova Scotia,
shown as Block 3 on a plan (Servant, Dunbrack, McKenzie & XxxXxxxxx Limited Plan
Number 12-131-A) of survey of Blocks 1 to 4 inclusive, Lot C-l and Parcel S
Lands and Lands Covered by Water, Acquired by Xxxxx Brothers Limited and City of
Halifax, signed by Xxx X. Xxxxxxxx, N.S.L.S. dated November 10, 1982 and
described as follows:
BEGINNING on the official city street line (confirmed by City Council October
14, 1982) of the Service Road at the most southern corner of Lot C-l,
THENCE N 43(degree) 07' 13" E, 300.72 feet along the southeastern boundary of
Lot C-l to the most western corner of Block 4;
3
THENCE S 46(degree) 52' 47" E, 158.0 feet along the southwestern boundary of
BlocK 4 to an angle therein;
THENCE S 01(degree) 52' 47" E, 35.83 feet along the western boundary of Block 4
tO A northwestern boundary of Block 2;
THENCE S 43(degree) 07' 13" W, 295. 24 feet along said boundary of Block 2 to
the curved official city street line (confirmed by City Council October 14,
1982) of the Service Road;
THENCE northwesterly on a curve to the right which as a radius of 1,189.77 feet
for a distance of 88.45 feet along said official city street line to a point of
curvature thereon;
THENCE N 39(degree) 40' 45" W, 96.01 feet along the aforementioned official city
street line to the place of beginning".
CONTAINING a total area of 56,837 square feet, comprised of 37,657 square feet
more or less of land area and 19,180 square feet more or less of land covered by
water.
ALL bearings are Nova Scotia Coordinate Survey System Grid Bearings and are
referred to Central Meridian, 64(degree) 30' West.
ALL that certain volume of space, overlying Block 3, on the northeastern side of
a Service Road of the Xxxxxxxx Street Interchange in the City of Halifax,
Province of Nova Scotia, designated as Spatial Element SE-3A. Said Spatial
Element SE-3A being bounded, by horizontal planes having geodetic elevations of
146.50 feet and 196.50 feet and by vertical planes which are coincident with the
boundaries of Block 3 as said Block 3 is shown on a plan (Servant, Dunbrack,
McKenzie & XxxXxxxxx Limited Plan Number 12-131-A) of survey of Blocks 1 to 4
inclusive, Lot C-l and Parcel S Lands and Lands Covered by Water, Acquired by
Xxxxx Brothers Limited and City of Halifax, signed by Xxx X. Xxxxxxxx, N.S.L.S.
dated November 10, 1982 and described as follows:
BEGINNING on the official city street line (confirmed by City Council October
14, 1982) of the Service Road at the most southern corner of Lot C-l;
THENCE N 43(degree) 07' 13" E, 300.72 feet along the southeastern boundary of
Lot C-l to the most western corner of Block 4;
THENCE S 46(degree) 52' 47" E, 158.0 feet along the southwestern boundary of
BlocK 4 to an angle therein;
THENCE S 01(degree) 52' 47" E, 35.83 feet along the western boundary of Block 4
tO A northwestern boundary of Block 2;
THENCE 5 43(degree) 07' 13" W, 295.24 feet along said boundary of Block 2 to the
curved official city street line (confirmed by City Council October 14, 1982) of
the Service Road;
4
THENCE northwesterly on a curve to the right which has a radius of 1,189.77 feet
for a distance of 88.45 feet along said official city street line to a point of
curvature thereon;
THENCE N 39(degree) 40' 45" W, 96.01 feet along the aforementioned official city
street line to the place of beginning.
SAID Block 3 containing a total area of 56,837 square feet, comprised of 37,657
square feet more or less of land area and 19,180 square feet more or less of
land covered by water.
ALL bearings are Nova Scotia Coordinate Survey System Grid Bearings and are
referred to Central Meridian, 64(degree) 30' West.
ALL elevations are geodetic elevations plus 100 feet, derived from monuments of
the Nova Scotia Coordinate Survey System.
EXCEPTING and reserving out of the foregoing Block 3 and Spatial Element SE-3A
that portion thereof described as Parcel A and more particularly described as
follows:
ALL that certain parcel of land on the northeastern side of Upper Water Street
in the City of Halifax, Province of Nova Scotia shown as Parcel - A on a plan
(Servant, Dunbrack, McKenzie & XxxXxxxxx Ltd. Plan No. 14-453-0) of survey of
Blocks 2B and 2C and Parcels - A, B and C, Subdivision of Block 2A and Portions
of Blocks 1A & 3, Lands Conveyed to The Great-West Life ASSURANCE Company and
000000 Xxxxxx Limited signed by Xxxxxxxx X. Xxxxxx, N.S.L.S. dated September
1st, 1989 and described as follows:
BEGINNING on the curved northeastern official street line of Upper Water Street
at a western corner of Parcel - B lands as conveyed to The Great-West Life
Assurance Company by indenture recorded at the Registry of Deeds for the County
of Halifax in Book 3833 at Page 621;
THENCE northwesterly on a curve to the right which has a radius of 1,189.77 feet
for a distance of 10.00 feet along the curved northeastern official street line
of Upper Water Street to the southern corner Remaining Portion of Block - 3
lands as conveyed to The Great-West Life Assurance Company by Indenture recorded
at the Registry of Deeds for the County of Halifax in Book 3833 at Page 621;
THENCE N 89 42' 40" E, 13.74 feet along the southern boundary of Remaining
Portion of Block - 3 to its intersection with the northwestern boundary of the
aforementioned Parcel - B;
THENCE S 43 07' 13" W, 10.00 feet along the northwestern boundary of Block - B
to the place of beginning.
CONTAINING 50 square feet.
ALL bearings are Nova Scotia Coordinate Survey System Grid Bearings and are
referred to Central Meridian, 64 30' West.
5
THE above described Parcel - A being part of Block 3 and Spatial Element SE-3A
as shown on the above referred to plan.
6
SCHEDULE "B"
XXXXX'X WHARF DEVELOPMENT
HALIFAX, NOVA SCOTIA
GRAPH
TOWER 1 6th FLOOR PLAN
SCHEDULE "C"
The method of measuring office building rentable area shall be that
developed by the Building Owners and Managers Association International
and published in their booklet "Standard Method for Measuring Floor area
in Office Building" reprinted May 1981.
Rentable area is a measure of the tenants pro rata portion of the entire
office floor, excluding elements of the building that penetrate the floor
to area below. The rentable area of a floor is fixed for the life of the
building and is not affected by changes in corridor sizes or
configurations.
The rentable area of a floor is computed by measuring to the inside
finished surface of the dominant portion of the permanent outer building
walls excluding any major penetrations of the floor. No deductions are
made of columns and projections necessary to the building. Dominant
portion means that portion of the inside finished surface of the permanent
outer building wall which is 50% or more of the vertical floor-to-ceiling
dimension measured at the dominant portion. If the dominant portion is not
vertical, the measurement for area shall be to the inside finished surface
of the permanent outer building wall where it intersects the finished
floor. In the subject building the dominant portion is the inside surface
of the exterior windows.
PROPORTION FORMULA
A = net rentable area of tenant
B = net rentable area of
Tower 1 and Xerox Building
Proportion is A
---------
95% of B
SCHEDULE "D"
BUILDING STANDARD INSTALLATION SCHEDULE
1. LIGHTING
One 20" x 60" recessed fluorescent light fixture is provided at as per an
8 foot centre line spacing located on a standard ceiling grid. Any
installation of the light fixtures shall be at the Lessee's expense.
2. HEATING AND AIR-CONDITIONING SERVICES
Each floor is air-conditioned by a separate recirculation type variable
air volume unit located in the core area. The air is introduced through
lighting troffers. Perimeter and interior areas are divided into zones,
each with automatic controls.
The perimeter of each floor is heated by hot water radiation, with
continuous cabinets. One thermostat is provided on average for each bay to
automatically control perimeter space conditions. Interior space is
provided with one thermostat for each 2,000 square feet of area to control
the variable air volume boxes and maintain proper temperature.
The installation of interior heating, ventilation and air-conditioning
services and any relocation of exterior wall heating, ventilation and
air-conditioning services to accommodate lessee's partition requirements
or any special requirement such as exhaust for printing machines, air
circulation for boardrooms, computer rooms, or reception areas shall be at
lessee's expense.
3. SPRINKLER SYSTEM
The Building is fully sprinklered according to standards of the Nova
Scotia Fire Xxxxxxxx and the Fire Department of the City of Halifax.
Should changes be required to the Building Standard system due to the
Lessee's partition layout, then the changes and/or additional sprinklers
shall be at the Lessee's expense.
4. ELECTRICAL SERVICE
Electrical power is provided or Lessee's electrical service requirements
at junction boxes within the suspended ceiling on each floor.
5. TELEPHONE SERVICE
Conduit to receive telephone circuits will be provided from each bay to
the central core of each floor.
6. TOILET ROOMS
One Men's and one Women's toilet room are provided on each floor, fully
furnished and fixtured according to Building Standards. Any additional
plumbing shall be at the Lessee's expense.
7. DEMISING WALLS AND ENTRANCE DOORS
Demising Walls and Partitions are not provided on a single tenant floor.
On multiple tenant floors, demising walls and corridor walls are to be
provided in Building Standard drywall and steel stud construction, to
underside of slab with sound baffle. A Building Standard, full height,
wood grain, solid core entrance door plus hardware is provided.
8. FLOORING
Smooth finish concrete floor.
2
THIS INDENTURE made as of the 29th day of April , 1997
AMONG:
MENTOR NETWORKS INCORPORATED,
a body corporate, incorporated under the
laws of Canada ("Mentor") and its wholly
owned subsidiary
HIGH PERFORMANCE GROUP (CANADA)
INCORPORATED,
a body corporate continued under the laws
of the Province of Nova Scotia ("HPG"),
together, the "Companies"
OF THE FIRST PART
- and -
NOVA SCOTIA BUSINESS
DEVELOPMENT
CORPORATION, A Crown Corporation
of the Province of Nova Scotia
("NSBDC")
OF THE SECOND PART
- and -
XXXXX'X WHARF DEVELOPMENT
LIMITED, a body corporate under the
laws of the province of nova scotia
("NSBDC")
OF THE THIRD PART
WHEREAS:
A NSBDC has entered into financing agreements with the Companies (the
"Financing Agreements") under the terms of which NSBDC agreed, subject to
certain conditions, to advance loans to the Companies ("NSBDC Loans");
B The Companies have agreed to execute this Indenture as additional security
for the payment of the NSBDC Loans;
C By a Lease made between the Landlord and Mentor as tenant (the "Lease")
the Landlord leased to Mentor the 6th floor of its building know as
Xxxxx'x Wharf Tower I located at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxx
Xxxxxx which is outlined in red on Schedule "B" annexed to the Lease (the
Premises");
D HPG is also utilizing the Premises through arrangements with Mentor;
E It was a condition of the advance by NSBDC of the NSBDC Loans that the
Lease be on terms satisfactory to NSBDC and, that this Indenture be
executed and delivered to NSBDC.
NOW THEREFORE THIS INDENTURE WITNESSETH that for and in consideration of
the foregoing, and also in consideration of the sum of One Dollar ($1.00) now
paid by NSBDC to each of the Companies and the Landlord, the receipt and
sufficiency whereof is hereby acknowledged by each of the Companies and
Landlord, the parties hereto agree, each with the other, as follows:
I. SUBLEASE
1.1 The Companies hereby demise and sublet to NSBDC all of their right, title
and interest in and to the Premises, and in and to the Lease, save and
except only the last day of the Lease, PROVIDED ALWAYS, that this sublease
shall be null and void if the Companies pay or cause to be paid all sums,
whether for principal, interest or otherwise due and owing on the NSBDC
Loans.
II. COMPANIES' COVENANTS
2.1 The Companies covenant with NSBDC as follows:
(a) they have the right to convey their interest in and to the Premises
and the Lease, as conveyed herein, to NSBDC;
(b) they have a good leasehold title to the Premises;
(c) they shall have quiet possession of the Premises but if:
(i) either of the Companies defaults in payment of the NSBDC Loans
in accordance with their terms; or
(ii) either of the Companies fails to observe or perform any of its
covenants in favor of NSBDC, however arising,
then, on the happening of either one of the foregoing events, NSBDC
shall have quiet possession of the Premises, free from all
encumbrances, subject only to the terms, covenants and conditions of
the Lease;
2
(d) they will execute such further assurances of the Premises and of the
Lease as NSBDC may reasonably require;
(e) they have done no act to encumber the Premises or their interest in
the Lease;
(f) they will not, while any amounts remain unpaid under the NSBDC
Loans, assign the Lease;
(g) the Lease is a valid and subsisting Lease and they have done no act
or omitted to do any act whereby the Lease has become in any way
impaired or invalid;
(h) they will comply with all covenants, provisos and conditions
contained in the Lease, including payment of the rent reserved
thereunder, and will do no act or be guilty of any default which
shall or may cause the Lease to be forfeited or terminated;
(i) NSBDC, upon becoming aware that either of the Companies is in
default under the Lease, may pay any monies for rent or otherwise
that may be due under the Lease, and may perform or cause to be
performed any covenant thereunder or otherwise rectify and make good
any default committed by the Companies under the Lease, and any
monies so paid or costs, charges or expenses sustained by NSBDC
pursuant thereto, shall bear interest at the rate of 15% per annum
until paid;
(j) they will promptly pay, as and when due, all taxes, rates, levies,
charges and other impositions that may be rated or charged against
their interest in the Premises as a tenant under the Lease;
(k) they shall stand possessed of the last day of the term of the Lease
upon trust for NSBDC, to assign and dispose thereof as NSBDC may
direct, and upon any sale or sales of the interest of the Companies
under the Lease, NSBDC may, for the purposes of vesting the said day
or any such term or any renewal thereof in any purchaser or
purchasers thereof entitled, by deed in writing convey the interest
of the Companies as tenant under the Lease, including the said last
day of the term, and the Companies hereby irrevocably appoint NSBDC
as their attorney to do so.
III. Landlord's Consent
3.1 The Landlord acknowledges and consents to the execution and delivery of
this Indenture by the Companies and covenants and agrees with NSBDC that
it will, at the same time it gives a written notice to either of the
Companies pursuant to Section 29.2 of the Lease, give a copy of the notice
to NSBDC and, if NSBDC remedies the default giving rise to the giving of
3
such notice prior to the effective time of termination of the Lease, the
Lease shall not terminate and at NSBDC's option, either the Companies may
remain in possession of the Premises or NSBDC and/or its receiver may take
possession of the Premises under the terms of the Lease and the Landlord
will not, subject to compliance with the requirements of Article 11 of the
Lease, unreasonably withhold its consent to the assignment of the Lease to
a third party by NSBDC and/or its receiver in realizing on its security
including the security constituted by this Agreement.
3.2 The Landlord agrees that except for NSBDC's right to remedy any default in
accordance with paragraph 3.1 hereof and to realize upon the security
constituted hereby that NSBDC shall not be liable for any failure of the
Companies to comply with any covenant or obligation herein contained.
3.3 Nothing contained in this Agreement shall be construed as a waiver by the
Landlord of any of the Landlord's rights under the Lease.
IV. GENERAL
4.1 This Indenture shall enure to the benefit of and be binding on each of the
Companies, NSBDC and the Landlord and their respective successors and
assigns.
4.2 Time shall be the essence of this Indenture.
4.3 This Indenture shall be governed by the laws of the Province of Nova
Scotia.
IN WITNESS WHEREOF the parties hereto have properly executed this
Indenture on the day and year first above written.
SIGNED SEALED AND DELIVERED MENTOR NETWORKS
in the presence: INCORPORATED
/s/ Xxxxxxx Xxxx Per: /s/ Xxxxxxx Xxxx
Witness
HIGH PERFORMANCE GROUP
(CANADA) INCORPORATED
/s/ Xxxxxxx Xxxx Per: /s/ Xxxxxxx Xxxx
Witness
XXXXX'X WHARF DEVELOPMENT
LIMITED
/s/ Xxxxxx Xxxxxxxxx PER: /s/ Xxxx X. Xxxxxxx Xx.
Witness
NOVA SCOTIA BUSINESS
DEVELOPMENT CORPORATION
/s/ Xxxxxx Xxxxxxx PER: /s/ Xxxxxx X. Leaf
Witness /s/ Xxxxxxx Giannon
5
CANADA
PROVINCE OF NOVA SCOTIA
On this 29th day of April, A.D. 1997, before me, the subscriber personally
came and appeared Xxxxxxx Xxxx, a subscribing witness to the foregoing
Indenture, who, having been by me duly sworn, made oath and said that High
Performance Group (Canada) Incorporated, one of the parties thereto, caused the
same to be executed in its name and on its behalf and its corporate seal to be
thereunto affixed by its proper officers in his presence. ~
/s/ Xxxxxxx X. Xxxxx
A Commissioner of the
Court of Nova Scotia
CANADA
PROVINCE OF NOVA SCOTIA
On this 23rd day of June, A.D. 1997, before me, the subscriber personally
came and appeared Xxxxxx Xxxxxxxxx, a subscribing witness to the foregoing
Indenture, who, having been by me duly sworn, made oath and said that Xxxxx'x
Wharf Development Limited, one of the parties thereto, caused the same to be
executed in its name and on its behalf and its corporate seal to be thereunto
affixed by its proper officers in her presence. ~
/s/ Xxxxxx X. Xxxxxx
A Commissioner of the
Court of Nova Scotia
CANADA
PROVINCE OF NOVA SCOTIA
On this 29th day of April, A.D. 1997, before me, the subscriber
personally came and appeared Xxxxxxx Xxxx, a subscribing witness to the
foregoing Indenture, who, having been by me duly sworn, made oath and said that
Mentor Networks Incorporated, one of the parties thereto, caused the same to be
executed in its name and on its behalf and its corporate seal to be thereunto
affixed by its proper officers in his presence.
/s/ Xxxxxxx X. Xxxxx
A Commissioner of the
Court of Nova Scotia
6
CANADA
PROVINCE OF NOVA SCOTIA
On this 4th day of June, A.D. 1997, before me, the subscriber personally
came and appeared Xxxxxx Xxxxxxx, a subscribing witness to the foregoing
Indenture, who, having been by me duly sworn, made oath and said that Nova
Scotia Business Development Corporation, one of the parties thereto, caused the
same to be executed in its name and on its behalf and its corporate seal to be
thereunto affixed by its proper officers in her presence. ~
/s/ Xxxxx X. Xxxxx
A Commissioner of the
Court of Nova Scotia
PURDYS WHARF
DEVELOPMENT LIMITED
PHASE I
INVOICE
HST REGISTRATION NUMBER AUGUST 28, 1998
R137130340
INVOICE #980920
MENTOR NETWORKS INC.
600 - 0000 XXXXX XXXXX XXXXXX
XXXXXXX, XX X0X 0X0
ATTENTION: XXXX XXXX
1998/99 REALTY TAX
YOUR PROPORTIONATE SHARE OF REALTY TAXES FOR THE PERIOD APRIL 1, 1998 TO MARCH
31, 1999 AS PER ATTACHED TAX ASSESSMENT PREPARED BY XXXXXXX XXXXX APPRAISALS
(NOVA SCOTIA) LIMITED.
TOTAL 1998/99 REALTY TAXES $987,324.05
**TENANT PROPORTIONATE SHARE 6.241%
TOTAL REALTY TAXES DUE $ 61,618.66
LESS: TAXES PREVIOUSLY BILLED {29,705.26}
---------
SUBTOTAL BEFORE HST $ 31,913.40
5% HST 4,787.01
---------
1998/99 REALTY TAXES DUE $ 36,700.41
============
PAYMENT DUE SEPTEMBER 18, 1998
**BASED ON SQUARE FOOTAGE OCCUPIED 19,365/310,288 S.F.
PLEASE DIRECT ANY INQUIRIES TO XXXXXX XXXXXXXXX 000-000-0000
Suite 305, Xerox Building, 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx, X0X 0X0
Tel: (000) 000-0000 Fax: 000-0000
XXXXX'X WHARF
DEVELOPMENT LIMITED
PHASE I
INVOICE
July 6, 1998
HST #: R137130340
INVOICE #: 980656
MENTOR NETWORKS
600 - 0000 XXXXX XXXXX XXXXXX
XXXXXXX, XX X0X 0X0
WORK ORDER # DATE REQUEST LIGHTS MATERIAL UNIT COST COST
00-00-00000 01/04/98 RPLC LIGHTS - RECEPTION 2 F40CW/SS $1.60 $3.20
Total $3.20
HST $0.48
-----
INVOICE TOTAL $3.68
-----
DUE UPON RECEIPT
ANY INQUIRIES SHOULD BE ADDRESSED TO XXXXXX XXXXXXXXX 421-1122
Suite 305, Xerox Building, 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx, X0X 0X0
Tel: (000) 000-0000 Fax: 000-0000
XXXXX'X WHARF
DEVELOPMENT LIMITED
PHASE I
INVOICE
HST REGISTRATION NUMBER INVOICE #9806EX
R137130340
JULY 13, 1998
MENTOR NETWORKS INC.
600 - 0000 XXXXX XXXXX XXXXXX
XXXXXXX, XX X0X 0X0
For electricity consumed in excess of the allowable consumption for the period
March 31, 1998 - June 30, 1998 as per Section 7.1.3(A) of the standard lease.
Allowable Allowable Actual Actual
Demand Consumption Demand Consumption
PERIOD K.W. K.W.H. K.W. K.W.H. COST
------ --------- ----------- ------ ----------- ----
Mar 31 - Apr 30 44.6 11,490 41.4 14,400 $ 119.12
Apr 30 - May 29 44.6 11,107 39.6 14,040 99.45
May 29 - Jun 30 44.6 12,256 39.6 15,210 100.58
------
Pretax $ 319.15
Invoice
15% H.S.T. 47.87
-------
TOTAL $ 367.02
INVOICE ==========
Allowable Kilowatt consumption per sq. ft. = 19,365 x 2.3/1,000 + 44.6
Allowable Kilowatt consumption per day = 44.6 x 60 hrs./7 days = 383
DUE UPON RECEIPT
PLEASE DIRECT ANY INQUIRIES TO XXXXXX XXXXXXXXX 496-3038
Suite 305, Xerox Building, 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx, X0X 0X0
Tel: (000) 000-0000 Fax: 000-0000
