THIS INDENTURE made the 23 day of November 2007: BETWEEN: SHELTER CANADIAN PROPERTIES LIMITED as agent for HREIT Holdings 65 Corporation. (hereinafter called the "Landlord"), OF THE FIRST PART. - and - ADAPSYS DOCUMENT MANAGEMENT LP, (hereinafter...
EXHIBIT
10.54
THIS
INDENTURE made the 23 day of November 2007:
BETWEEN:
SHELTER
CANADIAN PROPERTIES LIMITED
as
agent
for
HREIT
Holdings 65 Corporation.
(hereinafter
called the "Landlord"),
OF
THE
FIRST PART.
-
and
-
ADAPSYS
DOCUMENT MANAGEMENT LP,
(hereinafter
called the "Tenant"),
OF
THE
SECOND PART.
-
and
-
BPO
MANAGEMENT SERVICES INC.,
(hereinafter
called the "Guarantor")
OF
THE
THIRD PART.
LEASE
INDEX
|
ARTICLE
I - DEMISE AND LEASE
|
|
|
1.00
|
Demise
and Lease
|
|
ARTICLE
II - TERM, USE & POSSESSION
|
|
|
2.00
|
Term
|
|
2.01
|
Use
|
|
2.02
|
Possession
|
|
ARTICLE
III - RENT
|
|
|
3.00
|
Rent
|
|
ARTICLE
IV - DEFINITIONS
|
|
|
4.00
|
"Lands"
|
|
4.01
|
''Buildings"
|
|
4.02
|
"Project"
|
|
4.03
|
"Tenant's
Taxes"
|
|
4.04
|
"Taxes"
|
|
4.05
|
"Operating
Costs"
|
|
4.06
|
"Proportionate
Share"
|
|
4.07
|
"Herein,
etc."
|
|
ARTICLE
V - TENANT'S COVENANTS
|
|
|
5.00
|
Pay
Rent
|
|
5.01
|
Pay
Tenant's Taxes
|
|
5.02
|
Pay
Proportionate Share of Taxes
|
|
5.03
|
Pay
Proportionate Share of Operating Costs
|
|
5.04
|
Additional
Rent
|
|
5.05
|
Evidence
of Payments
|
|
5.06
|
Disputes
|
|
ARTICLE
VI - TENANT'S ADDITIONAL COVENANTS
|
|
|
6.00
|
Acts
conflicting with Insurance
|
|
6.01
|
No
Nuisance
|
|
6.02
|
Comply
with Laws, etc.
|
|
6.03
|
Comply
with Rules and Regulations
|
|
6.04
|
Damage
by Tenant
|
|
6.05
|
Notice
of Accidents, Defects, etc.
|
|
6.06.01
|
Assigning
or Subletting
|
|
6.06.02
|
Tenant
remains Liable
|
|
6.06.03
|
Change
in control an Assignment
|
|
6.07
|
Indemnity
to Landlord
|
-ii-
|
6.08.01
|
Tenant
Insurance
|
|
6.08.02
|
Satisfactory
Insurers
|
|
6.08.03
|
Waiver
of Subrogation in Favour of Landlord
|
|
6.08.04
|
Landlord
may take out Tenant Insurance
|
|
6.08.05
|
Priority
of Landlord's Insurance Claim
|
|
6.09
|
Goods,
Chattels, etc. Not to be Removed.
|
|
6.10.01
|
Tenant
to Repair
|
|
6.10.02
|
Landlord
may Inspect
|
|
6.10.03
|
Expense
of Repairs Borne by Tenant
|
|
6.10.04
|
Tenant
may Effect Repairs
|
|
6.11.01
|
Use
of Premises
|
|
6.11.02
|
Tenant
to Use Premises during Whole Term
|
|
6.12
|
Signs
|
|
6.13.01
|
Tenant
may make Alterations
|
|
6.13.02
|
Tenant
to pay for Alterations
|
|
6.13.03
|
Tenant
not to Cover Floors or Windows
|
|
6.14.01
|
Peaceful
Surrender
|
|
6.14.02
|
Tenant
to Clean Premises
|
|
6.15
|
Utilities
|
|
6.16.01
|
Care
of Premises
|
|
6.17
|
Examination
of Premises
|
|
6.18
|
Nuisance
and Waste
|
|
6.19.01
|
Access
|
|
6.19.02
|
No
Obstruction
|
|
6.20
|
No
Auction
|
|
ARTICLE
VII - LANDLORD'S COVENANTS
|
|
|
7.00
|
Quiet
Enjoyment
|
|
7.01
|
Taxes
|
|
7.02
|
Management,
Operation and Maintenance
|
|
ARTICLE
VIII - MUTUAL COVENANTS
|
|
|
8.00.01
|
Damages
or Destruction of Demised Premises
|
|
8.00.02
|
Landlord
may Terminate if not Repairable
|
|
8.00.03
|
Abatement
of Rent
|
|
8.01
|
Access
to Premises, use of Common Areas, etc.
|
|
8.02.01
|
Landlord's
Right to do Work
|
|
8.02.02
|
Landlord
may Install Pipes, etc.
|
|
8.02.03
|
Landlord
may enter Demised Premises
|
|
8.03
|
Landlord's
Right to Inspect and Display Sign
|
|
8.04
|
Landlord
may Perform Tenant's Covenants, etc.
|
|
8.05.01
|
Re-Entry
|
|
8.05.02
|
Rights
of Landlord on Re-Entry
|
|
8.06
|
Waiver
of Exemptions
|
|
8.07
|
Bankruptcy,
etc.
|
-iii-
|
8.08
|
Follow
Chattels
|
|
8.09
|
Overlooking
and Condoning
|
|
8.10
|
Overholding
|
|
8.11
|
Removal
of Fixtures, etc.
|
|
8.12
|
Unavoidable
Failures or Delays
|
|
8.13
|
Landlord
not Responsible for Injuries, Loss, Damage, etc.
|
|
8.14
|
No
Liability for Indirect Damages, etc.
|
|
8.15
|
Entire
Agreement
|
|
8.16
|
Subordination
|
|
8.17
|
Notices
|
|
8.18.01
|
Payments
to Landlord
|
|
8.18.02
|
Landlord's
Expenses Recoverable
|
|
8.19
|
Sale
of Premises
|
|
8.20
|
Subdivision
|
|
8.21
|
Registration
|
|
8.22
|
Headings
|
|
8.23
|
Interpretations
|
|
8.24
|
Intent
|
|
8.25
|
Governing
Law
|
|
8.26
|
Frustration
|
|
8.27
|
Time
of Essence
|
|
8.28
|
Binding
Effect
|
|
8.29
|
Rider
|
SCHEDULES
|
Schedule
"A"
|
Plan
of Demised Premises
|
|
Schedule
"B"
|
Legal
Description and Municipal Address
|
|
Schedule
"C"
|
Rules
and Regulations
|
|
Schedule
"D"
|
Landlord's
Work and Tenant's Work
|
|
Schedule
"E"
|
Indemnity
Agreement
|
THIS
INDENTURE made the 23 day November, 2007:
BETWEEN:
SHELTER
CANADIAN PROPERTIES LIMITED
as
agent
for
HREIT
Holdings 65 Corporation,
(hereinafter
called the "Landlord"),
OF
THE
FIRST PART.
-
and
-
ADAPSYS
DOCUMENT MANAGEMENT LP,
(hereinafter
called the "Tenant"),
OF
THE
SECOND PART.
-
and
-
BPO
MANAGEMENT SERVICES INC.,
(hereinafter
called the "Guarantor"),
OF
THE
THIRD PART,
ARTICLE
I
- DEMISE AND LEASE
|
1.00
|
WITNESSETH
that in consideration of the rents, covenants, conditions and agreements
hereinafter reserved and contained on the part of the Tenant to
be paid,
observed and performed the Landlord does demise and lease unto
the Tenant
a certain portion of the premises located at 000 Xxxxxxx Xxxxxx,
consisting of 15,000 square feet, as shown on Schedule "A" attached
hereto
(hereinafter called the "Demised Premises") situate in the city
of
Winnipeg in the Province of Manitoba and forming part of the Building
situate upon the lands more particularly described in Schedule
"B"
attached hereto.
|
ARTICLE
II - TERM, USE AND POSSESSION
|
2.00
|
TO
HAVE AND TO HOLD the Demised Premises for and during the term (hereinafter
called the "Term") of Ten (10) Years commencing on the 1st day
of February
2008 (hereinafter called the "commencement date of the term"),
and ending
on the 31st
day of January 2018.
|
|
2.01
|
The
Demised Premises shall be used by the Tenant for the purpose of
an office
and production facility.
|
-2-
|
2.02
|
The
Landlord shall not be liable for failure to give possession of
the Demised
Premises on the commencement date of the Term of this Lease by
reason of
the fact that the Demised Premises are not ready for occupancy,
or due to
a prior Tenant wrongfully holding over or any other persons wrongfully
occupying the Demised Premises or for any other reason. In such
event,
payment of the rent and other charges under this Lease shall not
commence
until the day that possession is given or is available and the
commencement date of the Term shall be postponed until that day.
The
expiry date of the Term shall also be postponed so that the length
of the
Term remains as provided for in paragraph 2.00 hereof. If the Tenant
shall
have occupied the Demised Premises or any part thereof prior to
the
commencement date of the Term, such occupancy shall be deemed to
have been
subject to this Lease and the rent for the period of such occupancy
shall
be at the rate herein provided and shall be due and payable as
of the date
of occupancy on a per diem basis.
|
ARTICLE
III - RENT
|
3.00
|
YIELDING
AND PAYING THEREFOR yearly and every year during the said Term
as rent
unto the Landlord follows:
|
|
a)
Years 1-5
|
during
the period of February 1, 2008 to January 31, 2013 as rent unto
the
Landlord the annual sum of ONE HUNDRED FORTY-NINE THOUSAND TWO
HUNDRED
FIFTY DOLLARS ($149,250.00) plus G.S.T., of lawful money of Canada
to be
paid in advance in equal monthly instalments of TWELVE THOUSAND
FOUR
HUNDRED THIRTY-SEVEN DOLLARS AND FIFTY CENTS ($12,437.50) plus
G.S.T.,
being equal to NINE DOLLARS AND NINETY-FIVE CENTS ($9.95) per square
foot
net, plus G.S.T. Payments are to be made on the first day of each
and
every month during the said Term to the Landlord, the first of
such
payments to be made on February 1, 2008.
|
|
|
b)
Years 6-10
|
during
the period of February 1, 2013 to January 31, 2018 as rent unto
the
Landlord the annual sum of ONE HUNDRED SIXTY-EIGHT THOUSAND SEVEN
HUNDRED
FIFTY DOLLARS ($168,750.00) plus G.S.T., of lawful money of Canada
to be
paid in advance in equal monthly instalments of FOURTEEN THOUSAND
SIXTY-TWO DOLLARS AND FIFTY CENTS ($14,062.50) plus G.S.T., being
equal to
ELEVEN DOLLARS TWENTY-FIVE CENTS ($11.25) per square foot net,
plus G.S.T.
Payments are to be made on the first day of each and every month
during
the said Term to the Landlord, the first of such payments to be
made on
February 1, 2013.
|
ARTICLE
IV - DEFINITIONS
|
4.00
|
"Lands"
means those certain parcel(s) or tract(s) of land more particularly
described in Schedule "B" attached hereto.
|
|
4.01
|
"Building"
means the building described in the first part of Schedule "A"
attached
hereto, and which building is situate upon the
Lands.
|
-3-
|
4.02
|
"Project"
means the improvements constructed or to be constructed upon the
Lands
from time to time, including, without limitation, the
Building.
|
|
4.03
|
"Tenant's
Taxes" means without limitation, all taxes, licences, rates, duties
and
assessments imposed or levied by lawful authority in respect of
the use or
occupancy of the Demised Premises by the Tenant or relating to
or in
respect of personal property in the Demised Premises or the Building
or
the Project and all other business and trade fixtures, machinery
and
equipment, cabinetwork, furniture and movable partitions owned
or
installed by the Tenant at the expense of the Tenant or being the
property
of the Tenant in the Demised Premises or the Building or Project,
or
relating to or in respect of improvements to the Demised Premises
built,
made or installed by the Tenant or the Landlord or at the Landlord's
or
Tenant's request, whether any such taxes are payable by law by
the Tenant
or by the Landlord and whether such taxes are included by lawful
authority
in the taxes, licences, rates, duties and assessments imposed or
levied on
or with respect to the Lands and/or the Building and/or the Project.
"Tenants Taxes" shall also mean and include any and all penalties
or other
like charges for late payment thereof.
|
|
4.04
|
"Taxes"
means an amount equivalent to all taxes, rates, duties, levies
and
assessments whatsoever, whether municipal, provincial, parliamentary
or
otherwise, levied, imposed or assessed against the Lands, the Building
and/or the Project or upon the Landlord on account thereof, or
from time
to time, levied, imposed or assessed in the future in lieu thereof,
including those levied, imposed or assessed for education, schools
and
local improvements and including all costs and expenses incurred
by the
Landlord in good faith in contesting, resisting or appealing any
such
taxes, rates, duties, levies or assessments, but excluding Tenant's
Taxes
and excluding income or profits tax upon the income of the Landlord
to the
extent that such taxes are not levied in lieu of taxes, rates,
duties,
levies and assessments against the Lands, Building and/or Project
or upon
the Landlord on account thereof. "Taxes" shall also include any
other like
tax levied, imposed or assessed upon the capital of the Landlord,
howsoever that capital may be measured, and which tax is reasonably
allocated to the Lands, Building and/or Project and such taxes,
rates,
duties and assessments levied, imposed or assessed against roadways,
lanes, alleys or other passageways intended for the use of Tenants
of the
Project and which do not form part of the Lands, or upon the Landlord
on
account thereof, and any and all taxes which may in future be levied
in
lieu of Taxes as hereinbefore defined.
|
|
4.05
|
"Operating
Costs" means an amount equivalent to the total amount (without
duplication) paid or payable whether by the Landlord or others
on behalf
of the Landlord for managing, operating, maintaining, repairing
and
replacing the Lands, the Building and the Project including all
of the
component parts thereof such as are in keeping with maintaining
the
standard of a first class industrial complex including without
limitation,
all repairs and replacements required for such maintenance, the
costs of
providing electricity, water, gas, fuel and other services and
utilities
(including heating and air-conditioning) not otherwise paid by
the
Tenants, the costs of painting interior areas not normally rented
to
Tenants and the costs of painting and otherwise maintaining the
outside of
the Building and all other buildings in the Project (other than
those
parts for which the Tenant is responsible), the costs of maintaining
the
roadways and parking areas lying in or adjacent to the Project,
snow
removal, landscape maintenance, refuse removal and other costs
in
connection with the maintenance of outside areas and facilities,
sprinkler
protection, fire casualty, liability, rental and other insurance
costs
(including self insurance premiums not in excess of
normal
|
-4-
|
insurance
costs), security protection, service contracts with independent
contractors and all other expenses paid or payable by the Landlord
in
connection with the operation of the Building, the Lands, the Project
and
all of the component parts thereof, and an allowance of 5% of the
basic
rent payable on the premises, for building management fees of the
Landlord, but shall not include interest on debt or capital retirement
of
debt or any amounts directly chargeable by the Landlord to any
Tenant or
Tenants as otherwise provided herein.
|
|
|
4.06
|
"Proportionate
Share" means the fraction, the numerator of which is the square
foot area
of the Demised Premises and the denominator of which is the aggregate
of
the square foot areas of all rentable premises from time to time
physically existing in the Project, whether actually rented or
not,
including the Demised Premises, to which Operating Costs and Taxes
are
reasonably allocated by the Landlord, and for the purposes of this
Lease,
said fraction, shall be expressed as 15,000/18,462, or expressed
as a
percentage of 81.25%.
|
|
4.07
|
In
this Lease "herein", "hereof', "hereby", "hereunder", "hereto",
"hereinafter" and similar expressions refer to this Lease and not
to any
particular paragraph, section or other portion thereof, unless
there is
something in the subject matter or context inconsistent therewith.
Paragraphs referred to by number are the paragraphs so numbered
in this
Lease.
|
ARTICLE
V
- PAYMENTS
|
The
Tenant covenants with the Landlord that:
|
|
|
5.00
|
The
Tenant shall, during the Term, pay unto the Landlord the rent hereby
reserved in the manner hereinbefore mentioned without any deduction
whatsoever.
|
|
5.01
|
The
Tenant shall pay all Tenant's Taxes. In the event that the Tenant
shall
neglect or refuse to pay any Tenant's Taxes, the Landlord may,
at its
option, pay the same and recover the amount paid by all remedies
available
to it for the recovery of rent in arrears.
|
|
5.02
|
The
Tenant's Proportionate Share of Taxes shall be estimated by the
Landlord
for such period as the Landlord may determine (not to exceed twelve
(12)
months) and the Tenant shall pay the same to the Landlord in equal
monthly
instalments together with the regular monthly instalments of paragraph
3.00 Rent. The Landlord shall furnish to the Tenant an estimate
of the
Proportionate Share of Taxes payable by the Tenant during the period
so
determined by the Landlord. At the end of such period, the Landlord
shall
furnish the Tenant with a statement showing the actual amount of
the
Proportionate Share of Taxes paid and payable by the Tenant and
the
Landlord and Tenant covenant and agree each with the other that
if an
overpayment of the Tenant's Taxes has been made by the Tenant,
the
Landlord shall credit such amount to the Tenant's Proportionate
Share of
Taxes for the ensuing period and if there is no ensuing period
such amount
shall be paid to the Tenant and if an amount remains owing to the
landlord
in respect of the Tenant's Proportionate Share of Taxes, the Tenant
shall
forthwith pay such amount to the Landlord.
|
|
5.03
|
The
Tenant shall during and in respect of the Term pay its Proportionate
Share
of Operating Costs as follows: the Tenant's Proportionate Share
of
Operating Costs shall be estimated by the Landlord for such period
as the
Landlord may determine (not to exceed twelve (12) months) and the
Tenant
shall pay the same to the Landlord in equal monthly
instalments
|
5-
|
together
with the regular monthly instalments of paragraph 3.00 rent. The
Landlord
shall furnish to the Tenant an estimate of the Proportionate Share
of
Operating Costs payable by the Tenant during the period so determined
by
the Landlord. At the end of such period, the Landlord shall furnish
the
Tenant with a statement showing the actual amount of the Proportionate
Share of Operating Costs paid and payable by the Tenant, and the
Landlord
and Tenant covenant and agree each with the other that if an overpayment
of the Tenant's Proportionate Share of Operating Costs has been
made by
the Tenant, the Landlord shall credit such amount to the Tenant's
Proportionate Share of Operating Costs for the ensuing period and
if there
is no ensuing period such amount shall be paid to the Tenant and
if an
amount remains owing to the Landlord in respect of the Tenant's
Proportionate Share of Operating Costs, the Tenant shall forthwith
pay
such amount to the Landlord.
|
|
|
5.04
|
All
amounts payable by the Tenant pursuant to paragraphs 5.02, 5.03
and 6.15
hereof shall be payable as additional rent.
|
|
5.05
|
The
Tenant shall produce to the Landlord from time to time at the request
of
the Landlord evidence satisfactory to the Landlord of the due payment
by
the Tenant of all payments required to be made by the Tenant under
this
Lease.
|
|
5.06
|
In
the event of a dispute as to the amount of Operating Costs, or
the
inclusion of any cost, expense or amount in Operating Costs, then
such
dispute shall be referred to the Landlord's auditor for a decision.
The
decision of the Landlord's auditor shall be final and binding upon
the
parties hereto.
|
ARTICLE
VI - ADDITIONAL TENANT'S COVENANTS
|
The
Tenant further covenants with the Landlord that:
|
|
|
6.00
|
The
Tenant shall not do or permit to be done any act or thing which
may render
void or voidable or conflict with the requirements of any policy
or
policies of insurance, including any regulations of fire insurance
underwriters applicable to such policy or policies, whereby the
Demised
Premises or the Building or the Project are insured or which may
cause any
increase in premium to be paid in respect of any such policy. In
the event
that any such policy or policies is or are cancelled by reason
of any act
or omission of the Tenant, the Landlord shall have the right at
its option
to terminate this Lease forthwith by giving written notice of termination
to the Tenant, and in the event that the premium to be paid in
respect of
any such policy is increased by any act or omission of the Tenant
(including the use of the Demised Premises described in paragraph
2.01),
the Tenant shall pay to the Landlord the amount by which said premium
shall be so increased.
|
|
6.01
|
The
Tenant shall not at any time during the said Term, use, exercise
or carry
on or permit or suffer to be used, exercised or carried on, in
or upon the
Demised Premises or any part thereof any noxious, noisome or offensive
act, trade, business, occupation or calling, and no act, matter
or thing
whatsoever, shall at any time during the said Term be done in or
upon the
Premises or any part thereof which shall or may be or grow to the
annoyance, nuisance, damage or disturbance of the occupiers or
owners of
the Lands, Project or adjoining land and
properties.
|
-6-
|
6.02
|
The
Tenant shall comply promptly at its expense with all laws, ordinances,
regulations, requirements and recommendations which may be applicable
to
the Tenant or to the manner of use of the Demised Premises, of
any and all
federal, provincial, civic, municipal and other authorities or
association
of insurance underwriters or agents and all notices in pursuance
of same
and whether served upon the Landlord or the Tenant.
|
|
6.03
|
The
Tenant agrees that the rules and regulations endorsed on this Lease
or
attached hereto as Schedule "C" with such reasonable variations,
modifications and additions as shall from time to time be made
by the
Landlord and any other and further reasonable rules and regulations
that
may be made by the Landlord and communicated to the Tenant in writing
shall be observed and performed by the Tenant and its agents, servants
or
employees and all such rules and regulations now in force or hereafter
put
in force shall be read as forming part of the terms and conditions
of this
Lease as if the same were embodied herein.
|
|
6.04
|
The
Tenant shall reimburse the Landlord for costs incurred by the Landlord
in
making good any damage caused to the Lands or the Project or any
part
thereof including the furnishing and amenities thereof as a result
of the
negligent or wilful act or omission of the Tenant, its servants,
agents,
employees, customers, licensees, invitees, and/or any person for
whom the
Tenant is in law responsible from time to time in or about the
Demised
Premise or the Lands.
|
|
6.05
|
The
Tenant shall give the Landlord prompt written notice of any damage
to or
defect in the heating and air conditioning apparatus, water pipes,
gas
pipes, telephone lines, electric light or other wires or other
casualty.
|
|
6.06.01
|
The
Tenant shall not by licence permit any other person or corporation
to
occupy the Demised Premises in whole or in part other than related
or
subsidiary companies owned by the Tenant, and shall not mortgage
this
Lease or any right hereunder or interest herein and shall not assign
this
Lease or sublet the Demised Premises or any part thereof without
the prior
consent in writing of the Landlord, which consent, subject as hereinafter
provided, shall not be unreasonably withheld; PROVIDED that the
Tenant
shall at the time the Tenant shall request the consent of the Landlord,
deliver to the Landlord such information in writing (herein called
the
"Required Information") as the Landlord may reasonably require
respecting
the proposed assignee or subtenant including the name, address,
nature of
business, financial responsibility and standing of such proposed
assignee
or subtenant; PROVIDED FURTHER that after receiving such request,
the
Landlord shall have the right, at its option, to terminate this
Lease by
giving, within ten (10) days after receiving the Required Information,
not
less than thirty (30) nor more than sixty (60) days written notice
of
termination to the Tenant. In the event of such termination the
rent and
other payments required to be made by the Tenant hereunder shall
be
adjusted to the date of termination. For the purposes of this Lease
"related or subsidiary companies owned by the Tenant" shall include
any
business or company operated in accordance with paragraph 2.01
hereof and
owned or controlled by the Officers of the Tenant or their respective
holding Corporations.
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6.06.02
|
In
no event shall any assignment of this Lease, or any subletting
or parting
with possession of the Demised Premises or any part thereof, whether
the
Landlord has consented to the same or not, release or relieve the
Tenant
from its obligations to perform fully all of the terms, covenants
and
conditions of this Lease on its part to be performed and in any
event the
Tenant shall be liable for the Landlord's reasonable costs incurred
in
connection with the Tenant's request for
consent.
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-7-
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6.06.03
|
If
the Tenant is a non-reporting or closely held company, any change
in the
control of such company shall be deemed, for the purposes hereof,
to be an
assignment of this Lease.
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6.07
|
The
Tenant shall indemnify and save harmless the Landlord from any
and all
liabilities, damages, costs, claims, suits or actions growing out
of:
|
|
a)
|
any
breach, violation, or non-performance of any covenant, condition
or
agreement in this Lease set forth and contained on the part of
the Tenant,
to be fulfilled, kept, observed and performed;
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b)
|
any
damage to property while said property shall be in or about the
Project
and/or on the Lands; and
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c)
|
any
injury to any licensee, invitee, agent or employee of the Tenant,
including death resulting at any time therefrom, occurring in or
about the
Project and/or on the Lands.
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and
this indemnity shall survive the expiry or sooner termination of
this
Lease.
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6.08.01
|
The
Tenant shall institute and maintain at the Tenant's sole
expense:
|
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a)
|
i)
|
general
public liability and property damage insurance against claims for
personal
injury, death or property damage in the amount of Five Million
Dollars
($5,000,000.00) in respect of occurrences on or about the Development;
and
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ii)
|
plate
glass insurance, for the benefit of the Landlord, any and all mortgagees
of the Landlord (the "Mortgagee") and the Tenant, covering all
plate glass
and exterior doors in the Premises, including plate glass windows
and
doors, in an amount equal to the full insurable value
thereof;
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b)
|
Comprehensive
general public liability (covering personal and bodily injury),
death and
property damage) on an occurrence basis with respect to all construction,
installation, and alterations done in the Premises by the Tenant,
the
business conducted in or from the Premises, and the Tenant's use
and
occupancy thereof and of the Premises, of not less than Five Million
Dollars ($5,000,000.00) or such greater amount as the Landlord,
acting
reasonably, may require;
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c)
|
Insurance
of not less than One Million Dollars ($1,000,000.00) or such greater
amount as the Landlord, acting reasonably, may require in respect
of fire,
environmental impairment liability, and such other perils as are
from time
to time defined in the usual extended coverage endorsement covering
the
Tenant's trade fixtures and the furniture and equipment of the
Tenant and
all leasehold improvements of the Tenant, which shall contain a
waiver of
subrogation clause in favour of the Landlord, and shall include
the
Landlord and the Mortgagee as named insureds as the Landlord's
and the
Mortgagee's interest may appear with respect to insured leasehold
improvements, and shall provide that any proceeds recoverable in
the event
of loss to leasehold improvements shall be payable to the Landlord
and the
Mortgagee jointly but the Landlord and Mortgagee shall agree to
make
available such proceeds toward the repair or replacement of the
insured
property if this Lease is not terminated pursuant to any provision
hereof;
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-8-
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d)
|
Tenant's
legal liability insurance for full replacement cost of the Premises;
and
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e)
|
Any
other form of insurance that the Landlord, acting reasonably, requires
from time to time for risks against which a prudent tenant would
insure
and in respect of which insurance is
available.
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All
insurance required to be maintained by the Tenant hereunder shall
be in
amounts and on terms satisfactory to the Landlord and the Mortgagee.
Such
insurance shall be by policies in form and content satisfactory
from time
to time to the Landlord and the Mortgagee, and with insurers acceptable
to
the Landlord and the Mortgagee, and shall provide that such insurers
shall
provide to the Landlord and the Mortgagee thirty (30) days prior
written
notice of cancellation or material alteration of such policies.
Each
policy shall name the Landlord and the Mortgagee as additional
insureds
except for coverage for Tenant's fixtures and furnishings and equipment
but including coverage for leasehold improvements in respect of
Landlord's
and the Mortgagee's insurable interests therein, and shall contain
a
waiver in subrogation in favour of the Landlord and the Mortgagee,
and
shall protect and indemnify the Landlord, the Mortgagee and the
Tenant.
The Tenant shall furnish to the Landlord certificates, or, if required
by
Landlord or the Mortgagee, the original policies (signed by the
insurers)
of the insurance from time to time required to be effected by the
Tenant
and evidence acceptable to the Landlord of their continuation in
force.
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In
the event that the Tenant shall fail to insure and keep insured
as
hereinbefore provided in this Paragraph, the Landlord upon five
(5) days
prior notice in writing to the Tenant, shall be free to effect
such
insurance and the costs thereof, together with a sum equal to fifteen
percent (15%) of such costs as an administration fee, together
with
interest on all such costs at the Prime Rate from the date of payment
by
the Landlord to the date of reimbursement by the Tenant, to be
due and
payable forthwith on demand as additional rent
hereunder.
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In
the event that the Landlord, the Mortgagee, and the Tenant have
claims to
be indemnified under any such insurance, the indemnity shall be
applied
first to the settlement of the claim of the Mortgagee and then
the
Landlord and the balance, if any, to the settlement of the claim
of the
Tenant.
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6.08.02
|
All
insurance shall be effected with insurers and brokers and upon
terms and
conditions satisfactory to the Landlord and copies of all policies
or
certificate of all such insurance shall be delivered to the
Landlord.
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6.08.03
|
All
policies of insurance shall contain a waiver of subrogation clause
in
favour of the Landlord and shall also contain a clause requiring
the
insurer not to cancel or change the insurance without first giving
the
Landlord thirty (30) days' prior written notice
thereof.
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6.08.04
|
The
Tenant agrees that if it does not provide or maintain in force
such
insurance, the Landlord may take out the necessary insurance and
pay the
premium therefor for periods of one (1) year at a time, and the
Tenant
shall pay to the Landlord as additional rent the amount of such
premium
immediately on demand.
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6.08.05
|
In
the event that both the Landlord and the Tenant have claims to
be
indemnified under any such insurance, the indemnity shall be applied
first
to the settlement of the claim of the Landlord and the balance,
if any, to
the settlement of the claim of the
Tenant.
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-9-
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6.09
|
The
Tenant agrees that all goods, chattels and fixtures when moved
into the
Demised Premises shall not, except in the normal course of business,
be
removed from the Demised Premises until all rent due or to become
due
during the Term of this Lease and all utility charges are fully
paid.
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6.10.01
|
The
Tenant shall, during the said Term, well and sufficiently repair,
maintain, amend and keep the Demised Premises, with the appurtenances
and
all fixtures, in good and substantial repair when, where and so
often as
need shall be, reasonable wear and tear and damage by fire and
other risks
against which the Landlord is insured (hereinafter collectively
referred
to as "Tenant repair exceptions") only excepted.
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6.10.02
|
The
Landlord and its agents shall have the right at all reasonable
times
during the said Term, to enter the Demised Premises to examine
the
condition thereof, provided that the Landlord shall do so without
unreasonable interference with or interruption of the Tenant's
business,
and further, that all want of reparation that upon such view shall
be
found, and for the amendment of which notice in writing shall be
left at
the Demised Premises, the Tenant shall well and sufficiently repair
and
make good accordingly, as expeditiously as possible but in any
event
within the time provided for by the Landlord.
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6.10.03
|
Notwithstanding
anything to the contrary herein contained, if the Project or the
Building
or any part thereof or any appurtenance thereto, gets out of repair
or
becomes damaged or destroyed through the negligence, carelessness
or
misuse of the Tenant, its servants, agents, employees, customers,
licensees, invitees or any person for whom the Tenant is in law
responsible, than all necessary repairs, replacements or alterations
shall
at the sole option of the Landlord, be made either by the Landlord
or the
Tenant, but in any event, the expense thereof shall be borne by
the Tenant
who shall pay the same to the Landlord forthwith on demand and
the same
shall be collectible by the Landlord from the Tenant as if rent
in
arrears; subject always to paragraph 6.10.04.
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|
6.10.04
|
The
Tenant shall, when necessary and whether upon receipt of notice
from the
Landlord or not, effect and pay for such repairs, replacements
or
alterations as may be the responsibility of the Tenant under this
Lease by
the use of contractors or other qualified workers designated or
approved
by the Landlord in writing; in the event that the Tenant fails
to comply
with the Landlord's request to effect such repairs, replacements
or
alterations within the time provided for by the Landlord, then
the
Landlord may cause such repairs, replacements or alterations to
be
undertaken. In that event, then the Landlord shall be entitled
to recover
from the Tenant a fee of supervision for the carrying out of such
repairs,
replacements or alterations, such fee to be an amount equal to
fifteen per
cent (15%) of the moneys expended or of the cost of repairs, replacements
or alterations carried out by or under the supervision of the Landlord,
which amount shall be in addition to the cost of such work or moneys
expended, and the cost of such work or moneys expended together
with the
said fee shall be collectible by the Landlord from the Tenant as
if rent
in arrears. The rent hereunder shall in no way xxxxx while such
repairs,
replacements or alterations are being made by reason of loss or
interruption of the business of the Tenant because of the prosecution
of
any such work.
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|
6.11.01
|
The
Tenant shall not use the Demised Premises nor suffer or permit
the Demised
Premises to be used for any other purpose other than that provided
for in
paragraph 2.01, nor shall the
|
-10-
|
Tenant
use the Demised Premises in any way which will impair the efficient
and
proper operation of the sprinkler system in the
Building.
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|
6.11.02
|
The
Tenant shall commence the use of the Demised Premises referred
to in
paragraph 2.01 within thirty (30) days from the commencement date
of the
Term and shall carry on such use continuously during the said
Term.
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6.12
|
The
Tenant shall not paint, display, inscribe, place or affix any sign,
picture, advertisement, notice, lettering or direction on any part
of the
outside of the Building or the Project or visible from the outside
of the
Building or the Project or in any corridor, hallway, entrance or
other
public part of the said Building or Project; without the prior
written
consent and approval of the Landlord, such consent and approval
shall not
unreasonably withheld.
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6.13.01
|
The
Tenant shall not without the prior written consent of the Landlord,
which
consent shall not be unreasonably withheld, make any installations,
alterations, repairs or improvements in or to the Demised Premises.
The
Tenant shall submit to the Landlord detailed plans and specifications
of
any such work when applying for consent, and the Landlord reserves
the
right to recover from the Tenant the cost of having its architects
or
engineers examine such plans and specifications. The Landlord may
require
that any or all work to be done, or materials to be supplied hereunder
shall be done or supplied by the Landlord's contractors and/or
workers or
by contractors and/or workers engaged by the Tenant but first approved
by
the Landlord. In any event, any or all work to be done or materials
to be
supplied hereunder shall be at the sole cost and expense of the
Tenant and
shall be done and supplied and paid for in the manner and according
to
such terms and conditions, if any, as the Landlord may prescribe.
Any
connections of apparatus to the electrical system other than a
connection
to an existing base receptacle shall be deemed to be an alteration
within
the meaning of this paragraph. No connections to an existing base
receptacle shall be made if such connection would, if made, overload
the
capacity of such receptacle.
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|
6.13.02
|
The
Tenant shall promptly pay all charges incurred by the Tenant for
any work,
materials or services that may be done, supplied or performed in
respect
of the Demised Premises and shall forthwith discharge any liens
at any
time filed against the Lands, the Project, or the Building and
keep the
Lands, the Project and the Building of which the Demised Premises
forms a
part free from liens and in the event that the Tenant fails to
do so, the
Landlord may, but shall be under no obligation to, pay into Court
the
amount required to obtain a discharge of any such lien in the name
of the
Tenant and any amount so paid together with all disbursements and
costs in
respect of such proceedings on a solicitor and client basis shall
be
forthwith due and payable by the Tenant to the Landlord as additional
rent. The Tenant shall allow the Landlord to post and keep posted
on the
Demised Premises any notices that the Landlord may desire to post
under
the provisions of applicable builders' or mechanics' lien or other
legislation.
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|
6.13.03
|
The
Tenant shall not without the prior written consent of the Landlord
such
consent shall not be unreasonably withheld, put up any window drapes,
blinds, awnings or other similar things or cover the floors with
anything
other than loose rugs.
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|
6.14.01
|
The
Tenant shall, at the expiration or sooner termination of the said
Term,
peaceably surrender and yield up unto the Landlord the Demised
Premises
with the appurtenances, together with all fixtures or erections
which at
any time during the said Term shall be
made
|
-11-
|
therein
or thereon (other than Tenant's or trade fixtures removed pursuant
to
paragraph 8.11) in good and substantial repair and condition, except
said
Tenant repair exceptions, and deliver to the Landlord all keys
to the
Demised Premises which the Tenant has in its
possession.
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6.14.02
|
The
Tenant shall immediately before the expiration or sooner termination
of
the said Lease wash the floors, windows, doors, walls and woodwork
of the
Demised Premises. The Tenant further covenants that the Tenant
will not
upon such expiration or sooner termination leave upon the Demised
Premises
any rubbish or waste material and will leave the said Demised Premises
in
a clean and tidy condition.
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6.15
|
The
Tenant shall pay all rates and charges for water, gas and electric
light
and/or power, heating fuel, telephone or other utilities supplied
to or
used in the Demised Premises as a separately metered or separately
invoiced by the supplier thereof, and, if not so separately metered
or
invoiced, the Tenant's Proportionate Share of such rates and charges;
PROVIDED HOWEVER that if the Tenant is an excessive user of any
such
utilities, the Tenant shall be charged accordingly.
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6.16.01
|
The
Tenant shall take good care of the Demised Premises and keep same
in a
clean, tidy and healthy condition.
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6.16.02
|
The
Tenant shall at its own expense be responsible for and shall maintain
and
replace from time to time as may be reasonably necessary during
the term
of this Lease all light fixtures, tubes, ballasts, starters and
fuses in
the Demised Premises. The Landlord shall have the right to attend
to such
maintenance and replacements, but the expense thereof shall remain
the
responsibility of the Tenant.
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6.16.03
|
The
Tenant shall at its own expense replace or repair, under the direction
and
to the reasonable satisfaction of the Landlord, the glass, locks
and
trimmings of the doors and windows in or upon the Demised Premises,
which
become damaged or broken.
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6.16.04
|
The
Tenant shall not allow any ashes, refuse, garbage or other loose
or
objectionable material to accumulate in or about the Demised
Premises.
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6.16.05
|
The
Tenant shall place in containers of a type approved by the Landlord
all
garbage and refuse and such containers shall be deposited for pick-up
at
such times and places as are designated in writing from time to
time by
the Landlord.
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6.16.06
|
The
Tenant shall maintain in good operating condition and to the satisfaction
of the Landlord the water, sewer and gas connections and all other
mechanical systems in the Demised Premises and shall keep the same
in
clean and good working order. it is understood and agreed that
in case the
said fixtures and equipment or any part thereof shall be damaged
or
destroyed or become incapable of performing their function, the
Tenant
shall repair or replace the same to the satisfaction of the
Landlord.
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|
6.16.07
|
The
Tenant shall make all repairs and replacements to the Demised Premises
made necessary by reason of burglary or attempted
burglary.
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-12-
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6.16.08
|
The
Tenant shall heat the Demised Premises at all reasonable times
and shall
maintain such heat at a temperature required to prevent damage
of any
nature or kind whatsoever to the Demised Premises, and if damage
does
occur to the Demised Premises due to the Tenant's failure to heat,
the
Tenant agrees to pay for the repairs arising thereby.
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|
6.16.09
|
The
Tenant shall keep well painted the painted portions of the interior
of the
Demised Premises.
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6.16.10
|
The
Tenant shall keep and maintain the washrooms in a sanitary condition,
and
shall not use the washrooms, or suffer or permit its customers,
licensees,
invitees, servants, agents, or employees to use the washrooms for
any
purpose other than the purpose for which they were
designed.
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6.16.11
|
The
Tenant shall not do or suffer or permit any waste or damage, disfiguration
or injury to the Demised Premises or the fixtures and equipment
thereof or
permit or suffer any overloading of any floors thereof and shall
not place
in, on or about the Demised Premises any fixtures, equipment, machinery
or
materials of a weight beyond the capacity for which the Building
is
designed, or to the extent that will cause damage to the Building
or cause
excessive vibration. The Tenant shall repair any damage done to
the
Demised Premises or the Building by reason of any excessive weight
placed
in the Demised Premises or excessive vibration caused in the Demised
Premises.
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6.17
|
The
Tenant shall examine the Demised Premises and the Building before
taking
possession hereunder and such taking of possession will be, in
the absence
of agreement in writing to the contrary, evidence as against the
Tenant
that at the time thereof the Demised Premises and the Building
were in
good order and satisfactory condition. Not withstanding the foregoing
the
Tenant will have 30 days from the date of possession to advise
the
Landlord, in writing, of any deficiencies. No promise of the Landlord
to
alter, remodel or improve the Demised Premises or the Building
and no
representation respecting the condition of the Demised Premises
or the
Building has been made by the Landlord other than those contained
herein
or made a part hereof.
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6.18
|
The
Tenant shall not cause or suffer or permit any oil or grease or
any
harmful, objectionable, dangerous, poisonous or explosive matter
or
substance to be discharged into the Demised Premises or the Building
or
the Project or into the driveways, common areas, ditches, water
courses,
culverts, drains or sewers in or adjacent thereto, and will take
all
reasonable measures for insuring that any effluent discharged will
not be
corrosive, poisonous or otherwise harmful, or cause obstruction,
deposit
or pollution within the Demised Premises, or the Building, or the
Project
or the driveways, common areas, ditches, water courses, culverts,
drains
or sewers thereof.
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6.19.01
|
The
Tenant shall not permit any vehicles belonging to the Tenant, its
customers, invitees, licensees, agents or servants to cause obstruction
on
any roads, driveways or common areas in the neighbourhood of the
Project
or prevent the ingress or egress to all other tenants in the Building
and
the Project and will use its best endeavours to ensure that persons
doing
business with the Tenant and its servants and workers shall not
permit any
vehicles to cause such obstruction as
aforesaid.
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-13-
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6.19.02
|
The
Tenant shall not place, nor suffer or permit its customers, invitees,
licensees, agents or servants to place any materials in the yard
or yards
of the Project or the adjacent driveways, parking or common areas
thereof
and shall cause no obstruction to vehicles operating on the said
adjacent
driveways, parking or common areas.
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6.20
|
The
Tenant shall not at any time during the Term of this Lease, permit
any
sale by auction to be held within the Demised Premises or upon
the Lands
or any part thereof.
|
ARTICLE
VII - LANDLORD'S COVENANTS
|
The
Landlord covenants with the Tenant that:
|
|
|
7.00
|
The
Tenant, paying the rent hereby reserved and performing the covenants
herein on the Tenant's part contained, shall and may peaceably
posses and
enjoy the Demised Premises for the Term hereby granted without
any
interruption or disturbance from the Landlord or any other person
or
persons lawfully claiming by, from or under the Landlord; SUBJECT
ALWAYS
to the terms, covenants and conditions contained in this
Lease.
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|
7.01
|
The
Landlord shall pay or cause to be paid Taxes as defined in Paragraph
4.04
hereof, subject to contribution by the Tenant as provided in Paragraph
5.02 hereof.
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|
7.02
|
The
Landlord shall manage, operate, maintain, repair and replace the
Building,
the Project and the Lands subject to the cost and expense thereof
being
contributed to by the Tenant as provided in paragraph 5.03
hereof.
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|
7.03
|
The
Landlord:
|
|
a)
|
Shall
institute and maintain insurance for fire and extended coverage
in respect
of any improvements to the Lands and Premises and all equipment,
fixtures
and machinery thereon, other than equipment, fixtures and machinery
owned
or place thereon by the Tenant and other tenants of the
Building.
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|
b)
|
Shall
institute and maintain general public liability and property damage
insurance against claims for personal injury, death or properly
damage in
respect of occurrences on or about the Development; and
|
|
|
c)
|
Shall
institute and maintain such other insurance as the Landlord considers
prudent or necessary or as its mortgagees may
require.
|
ARTICLE
VIII - MUTUAL COVENANTS
|
The
parties hereto agree each with the other as follows:
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8.00.01
|
If
during the Term hereby demised or any renewal thereof the Demised
Premises
shall be damaged or destroyed by a peril or perils in respect of
which the
Landlord is insured, the rent shall xxxxx in the proportion that
the part
of the Demised Premises rendered unfit for occupancy bears to the
whole of
the Demised Premises until the Demised Premises
are
|
-14-
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rebuilt;
and the Landlord agrees that it will with reasonable diligence
repair the
Demised Premises unless the Tenant is obligated to repair under
the terms
hereof or unless this Lease is terminated as hereinafter provided;
subject
always to the provisions of paragraphs 8.00.02 and
8.00.03.
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|
8.00.02
|
If
the Demised Premises or the Building of which the Demised Premises
forms a
part or the Project are damaged or destroyed by any cause whatsoever
and
if in the opinion of the Landlord reasonably arrived at, the Demised
Premises cannot be rebuilt or made fit for the purposes of the
Tenant, or
any other premises in the Building or the Project cannot be rebuilt,
within ninety (90) days of the damage or destruction, the Landlord
may, at
its option, terminate this Lease by giving the Tenant within thirty
(30)
days of such damage or destruction notice of termination and thereupon
the
rent, additional rent and any other payments for which the Tenant
is
liable under this Lease shall be apportioned and paid to the date
of such
damage or destruction and the Tenant shall immediately deliver
up
possession of the Demised Premises to the Landlord; PROVIDED that
notwithstanding the termination of this Lease as in this paragraph
set
forth, the Tenant shall remain liable for any outstanding obligations
of
the Tenant under this Lease as at the time of such
termination.
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8.00.03
|
If
the Building or part thereof shall be damaged or destroyed and
such damage
or destruction shall, in the opinion of the Landlord, materially
interfere
with the enjoyment of the Demised Premises by the Tenant, the rent
in
respect of the Demised Premises shall xxxxx in proportion to such
interference during the period such interference shall
continue.
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|
8.01
|
The
Landlord and Tenant agree that during the Term of this Lease the
Tenant
and the employees, agents, customers, licensees and invitees respectively
of the Tenant shall have the rights and shall comply with the provisions
set forth in the Second Part of Schedule "A" hereto annexed, subject
as
set forth in this Lease, including said part of said Schedule "A";
said
Schedule "A" shall be deemed to be a part of this
Lease.
|
|
8.02.01
|
The
Landlord shall have the right to make additions to and/or improvements
or
installations in and/or repairs to the Building and/or the Project
and/or
the common outside areas and whenever reference is made in this
Lease to
the Building or the Project or the common outside areas, it shall
mean the
Building and/or the Project and/or the common outside areas as
the same
may be changed, added to or improved from time to time and in relation
to
any such additions, improvements, installations, or repairs the
Landlord
may cause such reasonable obstructions of and interference with
the use or
enjoyment of the Project, the Building, the Demised Premises and/or
common
outside areas as may be reasonably necessary for the purposes aforesaid
and may interrupt or suspend the supply of electricity, water or
other
services when necessary and until said additions, improvements,
installations or repairs shall have been completed, there shall
be no
abatement in rent nor shall the Landlord be liable by reason thereof;
PROVIDED that all such additions, improvements, installations or
repairs
shall be made as expeditiously as reasonably possible.
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8.02.02
|
The
Landlord and any persons authorized by the Landlord shall have
the right
to use, install, maintain and/or repair pipes, wires, ducts or
other
installations in, under or through the Demised Premises for or
in
connection with the supply of any services to the Demised Premises
or any
other premises in the Building. Such services shall include, without
limiting the generality of the foregoing, gas, electricity, water,
sanitation, telephone, heating, air conditioning and ventilation.
The rent
hereunder shall in no way xxxxx while such
use,
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-15-
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installation,
maintenance and/or repair is being carried out, by reason of loss
or
interruption of the business of the Tenant because of the prosecution
of
any such work.
|
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|
8.02.03
|
The
Landlord and any persons authorized by the Landlord shall have
the right
to enter upon the Demised Premises to make such decorations, repairs,
alterations, improvements or additions as it may deem advisable
and the
Landlord or any persons authorized by the Landlord shall be allowed
to
take all material into and upon the Demised Premises that may be
required
therefor. The rent hereunder shall in no way xxxxx while such decorations,
repairs, alterations, improvements or additions are being made
by reason
of loss or interruption of the business of the Tenant because of
the
prosecution of any such work.
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|
8.03
|
During
the Term hereby created any person or persons may inspect the Demised
Premises and all parts thereof at all reasonable times on producing
a
written order to that effect signed by the Landlord or its agents,
provided that the Landlord shall do so without unreasonable interference
with or interruption of the Tenant's business. The Landlord shall
have the
right during the last three (3) months of the said Term to place
upon the
Demised Premises a notice of reasonable dimensions and reasonably
placed
so as not to interfere with the business of the Tenant, stating
that the
Demised Premises are for rent and further provided that the Tenant
will
not remove such notice or permit the same to be
removed.
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8.04
|
If
the Tenant shall fail to perform or cause to be performed each
and every
one of the covenants and obligations of the Tenant in this Lease
contained
the Landlord shall have the right (hut shall not be obligated)
to perform
or cause the same to be performed to do or cause to be done such
things as
may be necessary or incidental thereto (including without limiting
the
foregoing, the right to make repairs, installations, erections
and expend
moneys) and all payments, expenses, charges, fees and disbursements,
including reasonable solicitors' fees and disbursements, incurred
or paid
by on or behalf of the Landlord in respect thereof shall be paid
by the
Tenant to the Landlord forthwith.
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8.05.01
|
It
is hereby expressly agreed, that if and whenever the rent hereby
reserved,
or any part thereof, shall be unpaid for seven (7) days after any
of the
days on which the same ought to have been paid, although no formal
demand
shall have been made therefor, or in case of the breach or non-performance
of any of the covenants or agreements herein contained on the part
of the
Tenant or if the Demised Premises are vacated or become vacant
or remain
unoccupied for five (5) days or are not used for the purpose specified
then and in any of such cases it shall he lawful for the Landlord
at any
time thereafter, into and upon the Demised Premises or any part
thereof,
in the name of the whole to re-enter, and the same to have again,
repossess and enjoy, as of the Landlord's former estate, anything
hereinafter contained to the contrary notwithstanding.
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|
8.05.02
|
Should
the Landlord elect to re-enter, as herein provided, or should it
take
possession pursuant to legal proceedings or pursuant to any notice
provided for by law, it may either terminate this Lease or it may
from
time to time without terminating this Lease make such alterations
and
repairs as may be necessary in order to relet the Demised Premises,
and
may relet the Demised Premises or any part thereof for such term
or terms
(which may be for a term extending beyond the Term of this Lease)
at such
rental or rentals and upon such other terms and conditions as the
Landlord
in its sole discretion may deem advisable; upon each such reletting,
all
rents received by the Landlord from such reletting for the unexpired
portion of the Term shall be applied, first, to the payment of
any
indebtedness other than rent
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-16-
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due
hereunder from the Tenant to the Landlord; secondly, to the payment
of any
costs and expenses of such reletting, including brokerage fees
and
solicitors' fees and of costs of such alterations and repairs;
thirdly, to
the payment of rent and additional rent due and unpaid hereunder;
and the
residue, if any, shall be held by the Landlord and applied in payment
of
future rent as the same may become due and payable hereunder. If
such
rents received from such reletting during any month be less than
that to
be paid during the month by the Tenant hereunder, the Tenant shall
pay all
such deficiency to the Landlord. Such deficiency shall be calculated
and
paid monthly. No such re-entry or taking possession of the Demised
Premises by the Landlord shall be construed as an election on its
part to
terminate this Lease unless a written notice of such intention
be given to
the Tenant or left on the Demised Premises. Notwithstanding any
such
reletting without termination, the Landlord may at any time thereafter
elect to terminate this Lease for such breach. Should the Landlord
at any
time terminate this Lease for any breach, in addition to any other
remedies it may have it may recover from the Tenant all damages
it may
incur by reason of such breach, including the cost of re-entering
the
Demised Premises, reasonable solicitors' fees, and including the
worth at
the time of such termination of the excess, if any, of the amount
of rent
charges equivalent to rent reserved in this Lease for the remainder
of the
stated Term over the then reasonable rental value of the Demised
Premises
for the remainder of the stated Term, all of which amounts shall
be
immediately due and payable by the Tenant to the
Landlord.
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8.06
|
In
consideration of the premises and of the leasing and letting by
the
Landlord to the Tenant of the Demised Premises for the Term hereby
created
(and it is upon that express understanding that these presents
are entered
into), notwithstanding anything contained in any Statute or in
any Statute
which may hereafter be passed, none of the goods or chattels of
the Tenant
at any time during the continuance of the Term hereby created on
the
Demised Premises shall be exempt from levy by distress for rent
in arrears
by the Tenant as provided for in any such Statute or any amendment
or
amendments thereto and upon any claim being made for such exemption
by the
Tenant or on distress being made by the Landlord this covenant
and
agreement may be pleaded as an estoppel against the Tenant in any
action
brought to test the right to the levying upon any such goods as
are named
as exempted in any such Statute or amendment or amendments thereto;
the
Tenant waiving as the Tenant hereby does all and every benefit
that could
or might have accrued to the Tenant under and by virtue of any
such
Statute or any amendment or amendments thereto but for this
covenant.
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8.07
|
If
the Term hereby granted shall be at any time seized or taken in
execution
or in attachment by any creditor of the Tenant or if the Tenant
shall make
any assignment for the benefit of creditors, or becoming bankrupt
or
insolvent shall take the benefit of any Act that may be in force
for
bankrupt or insolvent debtors, or if the Tenant should abandon
the Demised
Premises then in any such case the said Term shall at the option
of the
Landlord, immediately become forfeited and void and the then current
month's rent and the rent for the three (3) months next following
shall
immediately become due and payable and in such case it shall be
lawful for
the Landlord at any time thereafter into and upon the Demised Premises,
or
any part thereof, in the name of the whole to re-enter and the
same to
have again, repossess and enjoy as of its former estate anything
herein
contained to the contrary notwithstanding.
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8.08
|
In
case of removal by the Tenant of the goods and chattels of the
Tenant from
off the Demised Premises, the Landlord may follow the same for
thirty (30)
days.
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-17-
|
8.09
|
Any
condoning, excusing or overlooking by the Landlord of any default,
breach
or non-observance by the Tenant at any time or times in respect
of any
covenant, proviso or condition herein contained shall not operate
as a
waiver of the Landlord's rights hereunder in respect of any subsequent
default, breach or non-observance nor so as to defeat or affect
in any way
the rights of the Landlord hereunder in respect of any subsequent
default,
breach or non-observance.
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|
8.10
|
If
at the expiration of the Term of this Lease the Tenant shall hold
over
with the consent of the Landlord, the tenancy of the Tenant thereafter
shall, in the absence of written agreement to the contrary, be
from month
to month only at a rental per month equal to one-tenth (1/10) of
the
rental payable for the year immediately preceding such expiration,
payable
monthly in advance on the first day of each month and shall be
subject to
all other terms and conditions of this Lease.
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|
8.11
|
Subject
to Paragraph 6.09 hereof the Tenant may at the expiration of the
Term
hereby granted, take, remove and carry away from the Demised Premises
all
fixtures, fittings, shelving, counters or other articles upon the
Demised
Premises in the nature of trade or Tenants' fixtures, but the Tenant
shall
in such removal do no damage to the Demised Premises, or shall
make good
any damage which the Tenant may occasion thereto; PROVIDED that
the Tenant
shall not remove or carry away from the Demised Premises any Building
or
any plumbing, heating, air conditioning or ventilating plant or
equipment
or other Building services; PROVIDED FURTHER that notwithstanding
anything
herein contained the Landlord shall have the right upon the termination
of
this Lease by effluxion of time or otherwise to require the Tenant
to
remove its installations, alterations, additions, partitions and
fixtures
or anything in the nature of leasehold improvements made or installed
by
the Tenant or by the Landlord on behalf of the Tenant and to make
good any
damage caused to the Demised Premises by such removal.
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8.12
|
Notwithstanding
anything to the contrary in the Lease contained, if either party
hereto
shall he bona fide delayed or hindered in or prevented from the
performance of any term, covenant or act required hereunder by
reason of
strikes, labour troubles, inability to procure materials or services,
failure of power, restrictive governmental laws or regulations,
riots,
insurrection, sabotage, rebellion, war, act of God, or other reason
whether of a like nature or not, not the fault of the party delayed
in
performing work or doing acts required under the terms of this
Lease, then
performance of such terms, covenants or acts shall be excused for
the
period of the delay and the period for the performance of any such
terms,
covenants or acts shall be extended for a period equivalent to
the period
of such delay. The provisions of this paragraph shall not operate
to
excuse the Tenant from the prompt payment of rent, additional rent,
or any
other amounts, which it is required by the terms of this Lease
to pay.
This paragraph shall not be construed to include in the reasons
for any
such delays, financial impecuniously or incapacity.
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|
8.13
|
The
Landlord shall not be responsible in any way for any injury (including
death) to any person or for any logs of or damage to any property
belonging to the Tenant or to other occupants of the Demised Premises
or
the their prospective customers, invitees, licensees, agents, servants
or
any other persons from time to time attending at the Demised Premises
while such person or property is in or about the Building, the
Lands or
the Project or any roadways, parking areas, lawns, sidewalks, steps,
truckways, platforms, corridors or stairways in connection therewith,
including without limiting the foregoing, any loss of
or
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-18-
|
damage
to any such property caused by theft or breakage, or by steam,
water, rain
or snow which may leak into, issue or flow from any part of the
Building,
Lands or Project or any adjacent of neighbouring lands or premises
or from
any other place or quarter or for any loss of or damage caused
by or
attributable to the condition or arrangement of any electric or
other
wiring or for any damage caused by smoke or anything done or omitted
to be
done by the Landlord or by any other tenant of premises in the
Building or
the Project or for any other loss whatsoever with respect to the
Demised
Premises and/or any business carried on therein.
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8.14
|
Under
no circumstances shall the Landlord be liable for indirect or
consequential damage or damages for personal discomfort, illness
or death
by reason of the non-performance or partial performance of any
covenants
of the Landlord herein contained including, without limiting the
generality of the foregoing, the heating of the Demised Premises
or other
operation of the air conditioning equipment, plumbing or other
equipment
in the Building or the Demised Premises.
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8.15
|
This
Lease and the Schedules (including the rules and regulations) and
Riders,
if any, attached hereto and which form part hereof set forth all
the
covenants, promises, agreements, conditions and understandings
between the
Landlord and the Tenant concerning the Demised Premises and there
are no
covenants, promises, agreements, conditions or understandings,
either oral
or written, between them other than are herein set forth. Except
as herein
otherwise provided, no subsequent alteration, amendment, change
or
addition to this Lease shall be binding upon the Landlord or the
Tenant
unless in writing and signed by each of them except the rules and
regulations adopted and promulgated by the Landlord and in acceptance
with
the provisions of this Lease.
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|
8.16
|
Upon
the request of the Landlord in writing, the Tenant shall make this
Lease
subject to and subordinate to all mortgages or like charges which
now or
hereafter during the term hereof shall be given by the Landlord
against
its interest in the Lands and Premises, and to all advances made
or to be
made thereunder, and shall execute promptly from time to time any
assurance that the Landlord may request to confirm this subordination
and
shall, if required by the Landlord, attorn to and become the tenant
or
licensee of any Mortgagee, provided always that in such event any
mortgagee shall first provide the Tenant with a non- disturbance
agreement
in favour of the Tenant under which the mortgagee will agree that
so long
as the Tenant is performing its obligations under the Lease, it
shall
enjoy quiet enjoyment of the Premises in accordance with the terms
of this
Lease, notwithstanding any default by the Landlord under any such
mortgage.
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|
8.17
|
Any
notice herein provided for or given hereunder if given by the Tenant
to
the Landlord shall be sufficiently given if delivered or mailed
in Canada
by registered mail, postage prepaid to the Landlord at 0000 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, X0X 0X0. Any notice herein
provided
for or given hereunder, if given by the Landlord to the Tenant,
shall be
sufficiently given if delivered or mailed as aforesaid addressed
to the
Tenant at the Demised Premises or left at the Demised Premises.
Any notice
mailed as aforesaid shall be conclusively deemed to have been given
on the
second business day following the day on which such notice is mailed
as
aforesaid. Either the Landlord or the Tenant may at any time give
notice
in writing to the other of any change of address of the party giving
such
notice and from and after the giving of such notice the address
therein
specified shall be deemed to be the address of such party for the
giving
of such notices thereafter. The word ''notice"
in
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-19-
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this
paragraph shall be deemed to include any request, demand, direction
or
statement in writing in this Lease provided or permitted to be
given by
the Landlord to the Tenant or by the Tenant to the
Landlord.
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8.18.01
|
All
payments required to be made by the Tenant under or in respect
of this
Lease shall be made, at such place or places as the Landlord may
designate
in writing, to the Landlord or to such agent or agents of the Landlord
as
the Landlord shall hereinafter from time to time direct in writing
to the
Tenant. The Tenant shall pay to the Landlord interest at the rate
of six
(6%) per cent per annum over the prime rate being charged by the
Landlord's bank, from time to time, on all payments of rent and
other sums
required to be made under the provisions of this Lease which have
become
overdue for any period longer than 30 days so long as such payments
remain
unpaid.
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|
8.18.02
|
All
sums paid or expenses incurred hereunder by the Landlord, which
ought to
have been paid or incurred by the Tenant, or for which the Landlord
hereunder is entitled to reimbursement from the Tenant, and any
interest
owing to the Landlord hereunder may be recovered by the Landlord
as
additional rent by any and all remedies available to it for the
recovery
of rent in arrears.
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|
8.19
|
In
the event of a sale or conveyance by the Landlord of the Lands
and/or the
Project in which the Building is located or in the event of an
assignment
of this Lease by the Landlord, the same shall operate to release
the
Landlord form any future liability upon any of the covenants or
conditions, express or implied, herein contained on the part of
the
Landlord, and in such event the Tenant agrees to look solely to
the
responsibility of the successor in interest of the Landlord. If
any
security is given by the Tenant to secure performance of the Tenant's
covenants hereunder, the Landlord may transfer such security, to
the
purchaser of the reversion and thereupon the Landlord shall be
discharged
from any further liability in reference thereto.
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|
8.20
|
The
Tenant covenants and agrees with the Landlord at the request of
the
Landlord and at no expense to the Tenant to execute all consents,
sign all
subdivision plans and do all things necessary to permit subdivision
of the
Lands.
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8.21
|
The
Tenant covenants and agrees with the Landlord that the Tenant shall
not
register this Lease, unless it shall be in such form as the Landlord
shall
approve, such approval shall not be unreasonably withheld; PROVIDED
ALWAYS
HOWEVER that if the Landlord requires that this Lease be registered
in the
appropriate Land Registry Office, or the Tenant requires that a
document
evidencing this Lease be registered in the appropriate Land Registry
Office, then all costs in connection therewith or incidental thereto,
including the cost of preparing all plans, surveys and other drawings
required for attachment to said lease or document for registration
purposes, reasonable solicitors' fees, and registration fees, shall
be
borne solely by the Tenant. Notwithstanding the provisions of paragraph
8.16, in the event that the Landlord requires this Lease to be
registered
in priority to any mortgage, trustee or trust indenture which may
now or
at any time hereafter affect in whole or in part the Demised Premises
or
the Building or the Project and whether or not any such mortgage,
trust
deed or trust indenture shall affect only the Demised Premises
or the
Building or the Project or shall be a blanket mortgage, trust deed
or
trust indenture affecting other premises as well, the Tenant covenants
and
agrees with the Landlord that the Tenant shall execute promptly
upon
request from the Landlord any certificate, priority agreement or
other
instrument which may
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-20-
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from
time to time be requested to give effect thereto; the Tenant hereby
irrevocably appoints the Landlord as agent and attorney for the
Tenant
with full power and authority to execute the deliver such instruments
for
and in the name of the Tenant.
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|
8.22
|
The
headings in this Lease form no part of this Lease and shall be
deemed to
have been inserted for convenience of reference only.
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|
8.23
|
Unless
the context otherwise requires, the word "Landlord" wherever it
is used
herein shall be construed to include and shall mean the Landlord,
its
successors and/or assigns, and the word "Tenant" shall be construed
to
include and shall mean the Tenant and the executors, administrators,
successors and/or assigns of the Tenant and when there are two
or more
Tenants or two or more persons bound by the Tenant's covenants
herein
contained their obligations hereunder shall be joint and several;
the word
"Tenant" and the personal pronoun "it" relating thereto and used
therewith
shall be read and construed as Tenants, and "his", "her", "its"
or "their"
respectively, as the number and gender of the party or parties
referred to
each require and the number of the verb agreeing therewith, shall
be
construed and agree with the said word or pronoun so
substituted.
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|
8.24
|
The
Tenant acknowledges and agrees that it is intended that this Lease
shall
be a completely carefree net lease for the Landlord except as expressly
herein set out and that the Landlord shall not be responsible during
the
Term hereof for any costs, charges, expenses and outlays of any
nature
whatsoever arising from or relating to the Demised Premises, or
the
contents thereof and without limiting the generality of the foregoing,
the
Tenant shall be liable for the payment of all charges, impositions
and
expenses of every nature and kind relating to the Demised Premises
and the
contents thereof and its Proportionate Share of all charges, impositions,
and expenses of every nature and kind relating to those parts of
the
Building, Project and Lands not intended for leasing and the Tenant
covenants with the Landlord accordingly.
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|
8.25
|
This
Lease shall be construed and governed by the laws of the province
in which
the Demised Premises are located. All of the provisions of this
Lease are
to be construed as covenants and agreements as though the words
importing
such covenants and agreements were used in each separate paragraph
hereof.
Should any provision of this lease be illegal or unenforceable
it should
be considered separate and several from the Lease and its remaining
provisions shall remain in force and be binding upon the parties
hereto as
though the illegal or unenforceable provision had never been
included.
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|
8.26
|
The
Landlord and Tenant agree that notwithstanding the occurrence or
existence
of any event or circumstance or the non-occurrence of any event
or
circumstance and so often and for as long as the same may occur
or
continue which, but for this paragraph, would frustrate or void
this
Lease, the obligations and liabilities of the Tenant hereunder
shall
continue in full force and effect as if such event or circumstance
had not
occurred or existed.
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|
8.27
|
Time
shall be of the essence of this Lease.
|
|
8.28
|
This
Lease and everything herein contained shall enure to the benefit
of and be
binding upon the heirs, executors, administrators, successors,
assigns and
other legal representatives, as the case may be of each of the
parties
hereto, subject to the granting of consent by the Landlord as provided
in
paragraph 6.06.01 to any assignment or
sublease.
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-21-
|
8.29
|
A
Rider consisting of three (3) pages with paragraphs numbered 9.01
to 9.11
is attached hereto and constitutes an integral part
hereof.
|
IN
WITNESS WHEREOF the parties hereto have executed this Indenture as of the
day
and year first above written.
|
SHELTER
CANADIAN PROPERTIES LIMITED
|
||
|
as
Managing Agent for
|
||
|
HREIT
Holdings 65 Corporation
|
||
|
Per:
|
XXXXXXX
XXXX
|
|
|
Property
Manager - Commercial Properties
|
||
|
Per:
|
XXXXXXX
X. XXXXX, C.A.
|
|
|
Senior
Vice President
|
||
|
(c/s)
|
||
|
ADAPSYS
DOCUMENT MANAGEMENT LP
|
||
|
Per:
|
/s/
signature
|
|
|
(c/s)
|
||
|
Per:
|
|
|
|
(c/s)
|
Referred
to in attached Lease dated the 23 day of November 2007, between SHELTER CANADIAN
PROPERTIES as agent for HREIT Holdings 65 Corporation, as Landlord and Adapsys
Document Management LP, as Tenant (to be initialed by both parties for
identification purposes).
|
9.01
|
Deposit
|
|
The
Landlord hereby acknowledges that the Tenant has provided a deposit
to
Colliers Xxxxx XxXxxxx in the amount of TWENTY-EIGHT THOUSAND NINTY
DOLLARS ($28,090.00). Such deposit is to be applied towards the
first and
last months base rent, plus G.S.T. due under the Lease.
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|
9.02
|
Early
Possession &
Fixturing Period
|
|
The
Tenant shall be permitted access and/or early possession of the
premises,
gross rent free to February 1, 2008, provided
that:
|
|
1.
|
The
Tenant has singed the Landlord's standard form of Lease;
and
|
|
|
2.
|
The
Tenant has provided to the Landlord a Certificate of Insurance,
evidencing
that adequate insurance, in accordance with the Lease, has been
placed as
of the date of access and/or
possession.
|
|
9.03
|
Roof
Rights
|
|
The
Tenant shall have the right, free of any rent, license fee or other
charge, to construct, install, operate, maintain and replace
communications equipment and related roof mount equipment ( the
"Equipment") on the roof of the Building, and to access and use
such
shafts, ducts, conduits and chase spaces in the building in order
to
connect the Equipment to the Premises or exterior land lines (the
"Connecting Equipment"). The Equipment and the Connecting Equipment
shall
be installed in accordance with applicable local rules, regulations
and
zoning ordinances. Before installing such Equipment and accessing
the
Connecting Equipment, the Tenant shall submit its plans to the
Landlord
for approval, which approval shall not be unreasonably withheld
or unduly
delayed.
|
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|
The
Tenant shall have access to the Equipment and the Connecting Equipment
on
a 24-hour per day, 7-day per week basis, subject to the Landlord's
reasonable rules and regulations. Upon the termination or expiration
of
the Term or any Renewal Term, the Tenant shall remove the Equipment
and
shall restore the roof of the Building to materially the same condition
as
it was prior to the installation of the Equipment, but excepting
ordinary
wear and tear and damage by casualty.
|
|
|
The
Tenant's Roof Rights will be subject to the Tenant being responsible
for
the cost of any repairs with respect to damage which may occur
as result
of installing and operating any communications equipment and related
roof
mount equipment on the roof of the
building.
|
-2-
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9.04
|
Tenant
Improvement
Allowance
|
|
The
Tenant shall receive a maximum of Twenty-One Dollars and Fifty
Cents
($21.50), plus G.S.T. per square foot, towards the completion of
Tenant
Improvements to the premises.
|
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|
Century
Properties Inc, shall be responsible for Sixteen Dollars and Fifty
Cents
($16.50), plus G.S.T. and the Landlord shall be responsible for
Five
Dollars ($5.00), plus G.S.T.
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9.05
|
Rent
Abatement
|
|
The
Tenant shall receive four (4) months rent free, from February 1,
2008 to
May 31, 2008, during which period the Tenant will be responsible
for
paying the required Additional Rent , plus applicable
G.S.T.
|
|
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The
total amount of base rent for the period of February 1, 2008 to
May 31,
2008, plus applicable G.S.T., will be paid to the Landlord by Century
Properties Inc. prior to the Lease commencement date of February
1,
2008.
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|
9.06
|
Restoration
|
|
The
Tenant shall be responsible for the restoration of the premises
upon the
removal of any leasehold improvements, furnishings, fixtures and/or
equipment during the term, any removal thereof, or upon the termination
and/or expiration of the term of any renewal thereof.
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|
|
9.07
|
Renewal
of
Lease
|
|
Provided
that the Tenant is not in material breach of the Lease, the Tenant
shall
have the right to renew the Lease with respect to the Premises
for one (1)
additional term of five (5) years each (the "Renewal Term") on
the same
terms and conditions, except for any further option to renew and
except
for the Basic Rent, which option may be exercised by the Tenant
upon
providing written notice to the Landlord no earlier than twelve
(12)
months and no later than six (6) months prior to the expiration
date of
the Term. The Basic Rent for the Renewal Term shall be mutually
agreed
between the Tenant and the Landlord based on the then-prevailing
fair
market rental value for similar unimproved space, without regard
to any
leasehold improvements installed on behalf of or by the Tenant,
of similar
size for a similar term. In the event the Tenant and the Landlord
are
unable to agree on the Basic Rent that will apply during the Renewal
Term
without one hundred twenty (120) days prior to the expiration date
of the
Term or Renewal Term, as the case may be, the Tenant, at its option,
shall
have the right to:
|
|
a)
|
Terminate
its negotiations with the Landlord, in which event the Lease shall
terminate on the expiration date of the then current Term or Renewal
Term,
as the case may be, as though the Tenant had not exercised its
option to
renew the Lease for a Renewal Term; or
|
|
|
b)
|
Refer
such matter to arbitration for determination, which arbitration
shall be
conducted by a single arbitrator in accordance with The Arbitration
Act
(Manitoba).
|
-3-
|
9.08
|
Non-Disturbance
Agreement
|
|
The
Landlord shall use its best efforts to obtain a Non-Disturbance
Agreement
from it's Mortgage, but cannot guarantee same.
|
|
|
9.09
|
Leasehold
Improvements
|
|
The
Landlord agrees to complete all work as outlined on Schedule "D"
hereto.
The Tenant acknowledges that all designs and construction/finish
specifications, of any leasehold improvements are to be submitted
to the
Landlord for final approval prior to commencement of construction.
The
Tenant shall be responsible for all additional costs including,
but not
limited to, all furniture, telephone and communication equipment,
and all
office, warehouse and manufacturing equipment associated with its
business. Any tenant specific finishing that exceeds the Leasehold
improvements work or any additional finishing shall be paid for
by the
tenant.
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9.10
|
Additional
Premises
Option and Right of First Refusal
|
|
From
the date of acceptance and during the Term and any Renewal Term,
the
Tenant shall have the following rights in respect of any contiguous
premises in the Building that are vacant or that become available
from
time to time (the "Additional
Premises"):
|
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a)
|
The
Tenant shall have an option to lease any Additional Premises. The
Landlord
shall deliver written notice to the Tenant identifying the Additional
Premises and the date on which the Additional Premises will become
available (the "Notification"). The Tenant shall have twenty (20)
days
from the date of receipt of the Notification to exercise its option,
which
exercise shall be made by providing the Landlord with written notice.
Where the Tenant exercises its option, the term of the lease for
the
Additional Premises shall commence on the date specified in the
Notification and shall terminate on the same date as the expiration
date
of the Term or any Renewal Term of the Lease in respect of the
Premises.
The Basic Rent payable in respect of the Additional Premises shall
be at
the same rate as is payable in respect of the Premises.
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b)
|
The
Tenant shall have an on-going right of first refusal to lease any
Additional Premises. If the Landlord receives an acceptable bona
fide
offer form a third party in respect of the Additional Premises
(the "Third
Party Offer"), the Landlord shall deliver a true copy of the Third
Party
Offer to the Tenant. The Tenant shall have twenty (20) days from
the date
of receipt of the Third Party Offer to accept the terms of the
Third Party
Offer, which acceptance shall be made by providing the Landlord
with
written notice of acceptance, whereupon a binding agreement to
lease the
Additional Premises shall exist between the Landlord and the Tenant
on the
terms and conditions contained in the Third Party
Offer.
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9.11
|
Guaranty
|
|
BPO
Management Services Inc., as Guarantor, agrees to guarantee the
Lease, in
accordance with the terms and conditions set forth in the Indemnity
Agreement, attached hereto as Schedule
"E".
|
SCHEDULE
"A"
Referred
to in attached Lease dated the 23 day of November 2007, between SHELTER CANADIAN
PROPERTIES as agent for HREIT Holdings 65 Corporation, as Landlord and Adapsys
Document Management LP, as Tenant (to be initialled by both parties for
identification purposes).
SCHEDULE
"B"
Referred
to in attached Lease dated the 23 day of November 2007, between SHELTER CANADIAN
PROPERTIES as agent for HREIT Holdings 65 Corporation, as Landlord and Adapsys
Document Management LP, as Tenant (to be initialled by both parties for
identification purposes).
LEGAL
DESCRIPTION OF
LANDS
XXX
0,
Xxxx 0000, XXXX, xx XX 00, Xxxxxx of St. Xxxxx,
And
Plan
6402, WLTO, in RL 4L Parish of St Xxxxx
MUNICIPAL
ADDRESS OF
BUILDING
555
Madison Street
SCHEDULE
"C"
Referred
to in attached Lease dated the 23 day of November 2007, between SHELTER CANADIAN
PROPERTIES as agent for HREIT Holdings 65 Corporation, as Landlord and Adapsys
Document Management LP, as Tenant (to be initialled by both parties for
identification purposes).
RULES
AND
REGULATIONS
|
1.
|
Tenants
shall not burn any trash or garbage in or about the Demised Premises
or
anywhere within the confines of the Lands.
|
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2.
|
Tenants
shall not keep or display any merchandise on or otherwise obstruct
any
part of the Lands except as specifically permitted in this
Lease.
|
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3.
|
Floors
shall not be overloaded.
|
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4.
|
All
loading and unloading of merchandise, supplies, materials, garbage,
refuse
and other chattels shall be made only through or by means of such
doorways
as the Landlord shall designate in writing from time to
time.
|
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5.
|
Tenant
shall, upon written notice from the Landlord, within five days
furnish the
Landlord with the current Provincial License Number of any vehicle
owned
or used by employees of Tenants.
|
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6.
|
Tenants
shall not bring upon their premise any equipment, motor or any
other
thing, which may damage the Building or the Project.
|
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7.
|
No
merchandise, supplies, materials, garbage, refuse or other chattels
shall
be allowed to remain on any common area.
|
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8.
|
The
Tenant shall not use or occupy in any manner whatsoever the area
of
recess, if any, between the lease line of the Demised Premises
and the
store front of the Demised Premises, and the Landlord reserves
entire
control over such area.
|
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9.
|
Wherever
any window area is not used for the purpose of entrances, offices
or show
areas, the Tenant must construct at its own expense, enclosures
or
decorative screens as specified and approved by the Landlord, so
as to
protect the windows in that area from damage.
|
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10.
|
If
any additional locks or bolts of any kind shall be placed upon
any of the
doors or windows of the Demised Premises, or if any changes shall
be made
in existing locks or the mechanisms thereof, the Tenant shall provide
the
Landlord with a duplicate key or keys so as to allow the Landlord
access
to the Demised Premises as and when required. The Tenant shall,
at the end
of the Term or renewal term as the case may be, return to the Landlord
all
keys to the Demised Premises and to all other areas of the Building
or
Project, which may have been supplied to the Tenant.
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11.
|
No
animals or bicycles or other vehicles shall be brought into the
Demised
Premises or the Building.
|
-2-
|
12.
|
The
Tenant shall not drive nails, tacks, screws, hooks or pins in the
woodwork, walls, floors or ceilings of the Demised Premises or
xxxx or
deface same.
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13.
|
The
doors and windows or other apertures that reflect or admit light
or air
into the passageways or into any portion of the Demised Premises
or the
Building shall not be covered or obstructed by the Tenant in any
manner
whatsoever.
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14.
|
Windows
shall not be left open so as to admit rain or snow.
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15.
|
It
shall be the responsibility of the Tenant to prevent any person
from
throwing objects out of windows or into the ducts or stairwells
of the
Demised Premises or the Building, and the Tenant shall pay for
any cost,
damage or injury resulting from any such act or acts.
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16.
|
Keys
or other devices which are made available to the Tenant for the
purpose of
provided access to the exterior doors of the Building shall not
be
duplicated and shall be returned to the Landlord immediately upon
termination of this Lease.
|
The
foregoing rules and regulations as from time to time amended, are not
necessarily of uniform application but may be waived in whole or in part
in
respect of other Tenants without affecting their enforceability with respect
to
the Tenant or the Demised Premises. For the benefit and welfare of all or
any
Tenants of premises upon the Lands as it may exist from time to time, the
Landlord shall have the right to issue further Rules and Regulations and
such
further Rules and Regulations shall thereupon by binding on all
Tenants.
SCHEDULE
"D"
Referred
to in attached Lease dated the 23 day of November 2007, between SHELTER CANADIAN
PROPERTIES as agent for HREIT Holdings 65 Corporation, as Landlord and Adapsys
Document Management LP, as Tenant (to be initialled by both parties for
identification purposes).
LANDLORD'S
WORK
The
Landlord agrees to complete the following work to the Leased Premises as
its
sole cost:
|
1.
|
Demise
premises, ready for finish, upon accepting and finalizing a lease
with
respect to the vacant balance of the premises, being approximately
3,462
square feet;
|
|
2.
|
Existing
suspended T-bar ceiling to be cleaned complete with new ceiling
titles;
|
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3.
|
Ensure
all existing lighting in good working order;
|
|
4.
|
Ensure
all existing HVAC system is good working order;
|
|
5.
|
Replace
broken windows, if any;
|
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6.
|
All
concrete floor to be smooth (carpet and glue removed), ready for
new floor
covering; and
|
|
7.
|
Provide
a preliminary space plan for the Tenant. All design and construction
specifications must be approved by the Landlord prior to commencement
of
work.
|
SCHEDULE
"E"
Referred
to in attached Lease dated the __________ day of November 2007, between SHELTER
CANADIAN PROPERTIES as agent for HREIT Holdings 65 Corporation, as Landlord,
ADAPSYS DOCUMENT MANAGEMENT LP, as Tenant and BPO MANAGEMENT SERVICS INC,
as
Guarantor, (to be initialled by both parties for identification
purposes).
INDEMNITY
AGREEMENT
THIS
AGREEMENT made in duplicate this day of November 2007.
BETWEEN:
BPO
MANAGEMENT SERVICS INC.,
(hereinafter
called the "Guarantor"),
OF
THE
FIRST PART,
-
and
-
SHELTER
CANADIAN PROPERTIES LIMITED
as
agent
for
HREIT
Holdings 65 Corporation,
(hereinafter
called the "Landlord"),
OF
THE
SECOND PART.
WHEREAS
in order to induce the Landlord to enter into a Lease Agreement with Adapsys
Document Management LP, dated the day and year first above written, pertaining
to space in the building known as 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx,
(which
Lease Agreement is hereinafter referred to as the "Lease"), and in consideration
of the sum of ONE DOLLARS ($1.00), now paid by the Landlord to the Guarantor,
and for other good and valuable consideration, the receipt and sufficiency
whereof if hereby acknowledged, the Guarantor, hereby makes the following
indemnity and agreement with and in favour of the Landlord:
|
1.
|
The
Guarantor does hereby covenant and agree with the
Landlord:
|
|
|
a)
|
To
make the due and punctual payment of all Rent, monies and charges
expressed to be payable under the Lease during the period of the
term
contemplated by the Lease.
|
|
|
b)
|
To
perform all and singular, the terms, covenants, conditions and
provisions
in the Lease contained on the part of the Tenant to be kept, observed
and
performed during the period of the term contemplated by the
Lease.
|
|
|
To
indemnify and save harmless the Landlord from any loss, costs or
damages
arising out of any failure to pay the aforesaid Rent, monies and
charges
and/or the failure to perform any of the terms, covenants, conditions
and
provisions.
|
||
|
2.
|
This
Indemnity is absolute and unconditional and the obligations of
the
Guarantor shall not be released, discharged, mitigated, impaired
or
affected by:
|
|
|
a)
|
Any
waiver by or failure of the Landlord to enforce any of the terms,
covenants, conditions and provisions of the
Lease.
|
|
-2-
|
b)
|
Any
assignment of the Lease by the Tenant or by any trustee, receiver
or
liquidator.
|
|
|
c)
|
Any
consent, which the Landlord may give to any such
assignment.
|
|
3.
|
The
Guarantor hereby expressly waives notice of the acceptance of this
Indemnity and all notice of non-performance, non-payment or non-observance
on the part of the Tenant of the terms, covenants, conditions and
provisions of the Lease.
|
|
4.
|
In
the event of a default under the Lease or hereunder, the Guarantor
waives
any right to require the Landlord
to;
|
|
a)
|
Proceed
against the Tenant or pursue any rights or remedies with respect
to the
Lease.
|
|
|
b)
|
Proceed
against or exhaust any security of the Tenant held by the
Landlord.
|
|
|
c)
|
Pursue
any other remedies whatever in the Landlord's
power,
|
|
5.
|
The
Landlord shall have the right to enforce this Indemnity regardless
of the
acceptance of additional security from the Tenant and regardless
of the
release or discharge of the Tenant by the Landlord or by others
or by
operation of any law.
|
|
6.
|
Without
limiting the generality of the foregoing, the liability of the
Guarantor
under this Indemnity shall not be deemed to have been waived, released,
discharged, impaired or affected by reason of the release or discharge
of
the Tenant in any receivership, bankruptcy, winding up or other
creditor's
proceedings, or the rejection, disaffirmance or disclaimer of the
Lease in
any proceedings, and shall continue with respect to the periods
prior
thereto and thereafter, for and with respect to the term originally
contemplated and expressed in the Lease, and as renewed or overheld
as the
case may be. The liability of the Guarantor shall not be affected
by the
repossession of the demised premises by the Landlord provided,
however,
that the net payments received by the Landlord after deducting
all costs
and expenses or repossession and/or re-letting the same, shall
be credited
from time to time by the Landlord to the account of the Guarantor
and the
Guarantor shall pay any balance owing to the Landlord from time
to time,
immediately upon ascertainment.
|
|
7.
|
No
action or proceeding brought or instituted under this Indemnity,
and no
recovery in pursuance thereof, shall be a bar or defence to any
further
action or proceedings which may be brought under this Indemnity
by reason
of any further default or defaults hereunder and/or in the performance
and
observance of the terms, covenants, conditions and provisions of
the
Lease.
|
|
8.
|
No
modification of this Indemnity shall be effective unless the same
be in
writing and signed by the Guarantor and the Landlord.
|
|
9.
|
The
Guarantor shall, without limiting the generality of the foregoing,
be
bound by this indemnity in the same manner as though the Guarantor
was the
Tenant named in the Lease.
|
|
10.
|
Until
all obligations to the Landlord under or pursuant to the Lease
have been
fulfilled, the Guarantor will not claim to be subrogated, in whole
or in
part, to the position of the Landlord.
|
|
11.
|
All
of the terms, agreements and conditions of this Indemnity shall
extend to
and be binding upon the Guarantor and shall enure to the benefit
of and
may be enforced by the Landlord, and its administrators, successors
and
assigns, and any holder of any mortgage to which the Lease may
be subject
and subordinated from time to time.
|
|
12.
|
As
herein used, the term "Landlord" shall take on the same meanings
as the
context permits or requires, as the term "Landlord" is defined
in the
Lease and, similarly, the terms "Tenant" and other capitalized
terms as
used herein shall respectively have the same definitions as set
out in the
Lease.
|
-3-
|
13.
|
Any
notice required or permitted to be given hereunder shall be given
in
writing, and may be given by mailing the same by prepaid registered
post,
or by delivering the same to the party to whom the notice is intended
to
be given at the following addresses:
|
|
|
a)
|
if
to the Landlord:
|
|
|
Shaker
Canadian Properties Limited
|
||
|
0000
- Xxxxx Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxx,
Xxxxxxxx
|
||
|
X0X
0X0
|
||
|
b)
|
if
to the Guarantor:
|
|
|
0000
X. Xxxxxxx Xxxxxx
|
||
|
Xxxxxxx,
XX 00000
|
||
|
Attn:
Xx. Xxx Xxxxxxxxxx
|
||
|
14.
|
This
agreement shall be construed in accordance with the laws of the
Province
of Manitoba.
|
|
15.
|
Wherever
herein reference is made to either the Landlord, the Tenant and/or
the
Guarantor, the reference shall be deemed to apply also to the respective
heirs, executors, administrators, successors and permitted assigns
of them
and each of them as the case may
be.
|
IN
WITNESS WHEREOF the parties first above mentioned have executed this agreement
effective from the day and year first above written.
|
BPO
MANAGEMENT SERVICS INC.
|
||
|
Per:
|
/s/ Xxxxx
Xxxxxxx
GUARANTOR |
|
|
|
||
|
SHELTER
CANADIAN PROPERTIES LIMITED
|
||
|
as
Agent for
|
||
|
HREIT
Holdings 65 Corporation
|
||
|
Per:
|
XXXXXXX
XXXX
|
|
|
Property
Manager - Commercial Properties
|
||
|
Per:
|
XXXXXXX X. XXXXX, C.A. |
|
|
Senior
Vice President
|
