THIS INDENTURE made this 9th day of May, 2000.
BETWEEN:
KANATA RESEARCH PARK CORPORATION
(Hereinafter called the "Landlord")
OF THE FIRST PART
AND:
PMC-SIERRA LTD.
(Hereinafter called the "Tenant")
OF THE SECOND PART
WITNESSETH that in consideration of the rents, covenants,
conditions and agreements herein contained, the Landlord and the Tenant covenant
and agree as follows:
1.00 LEASED PREMISES
The Landlord hereby leases to the Tenant all those premises
consisting of approximately Fifty Eight Thousand Two Hundred Forty
Two point Sixty (58,242.60) usable [Sixty Five Thousand Two Hundred
Thirty One point Seventy One (65,231.71) rentable] square feet of
space on the 2nd, 3rd and 4th floors (herein called the "First
Leased Premises") and Nineteen Thousand Four Hundred Fourteen point
Twenty (19,414.20) usable [Twenty One Thousand Seven Hundred Forty
Three point Ninety (21,743.90) rentable] square feet of space on
the 5th floor (herein called the "Additional Leased Premises") of a
building to be known municipally as 411 Legget Drive (herein called
the "Building") in the City of Kanata which Building is to be
erected on lands owned by the Landlord (herein called the "Lands")
described in Schedule "A" attached. The First Leased Premises and
Additional Leased Premises are more particularly outlined on the
floor plan attached and marked Schedule "B". The parties
acknowledge that the foregoing calculation of the area of the First
Leased Premises and Additional Leased Premises have been estimated
only and that the actual areas shall be subject to certification by
the Landlord.
Unless otherwise specified herein, all references to the Leased
Premises in the Lease shall include the First Leased Premises and
the Additional Leased Premises.
On or before the date so stipulated for possession of the Leased
Premises, or within a reasonable time thereafter, the Landlord
shall provide a letter of certificate of measurement verifying the
square footage of the Leased Premises.
1.01 ADDITIONAL DEFINITIONS
For the purposes of this Lease and any additions or amendments
thereto:
(a) "Improvements" means all improvements located on the Lands,
including the Building, the parking lot or structure
servicing the Building and other facilities and physical
structures which are for the exclusive use of occupants of
the Building;
(b) "Common Areas" means at any time those portions of the Lands
and Building not leased or designated for lease to tenants
but provided to be used in common by (or by the sublesses,
agents, employees, customers or licensees of) the Landlord,
Tenant and other tenants of the Building, whether or not
they are open to general public and shall include any
fixtures, chattels, systems, decor, signs, facilities or
landscaping contained in those areas or maintained or used
in connection with them, and shall be deemed to include the
city sidewalks adjacent to the Lands and any pedestrian
walkway system (either above or below ground), park, or
other public facility in respect of which the Landlord is
from time to time subject to obligations arising from the
Lands and Building.
(c) "Tenant's Proportionate Share" means percent Forty Six point
Eighty Seven (46.87%) provided the said percentage may be
varied based on the actual area of the Leased Premises as
certified by the Landlord.
2.00 TERM
The term of the Lease shall be for a period of Ten (10) years to be
computed, from the earlier of substantial completion of the First
Leased Premises or January 1, 2001 (the "Commencement Date") and
from thenceforth next ensuing and full to be completed and ended at
the conclusion of the 10th year (the "Term"). Notwithstanding the
Commencement Date of the Term, the Tenant shall not occupy the
Additional Leased Premises until November 1, 2000, nor shall it be
liable for Annual Rent or Additional Rent thereon until such date.
The Tenant acknowledges and agrees that the Landlord shall have the
right to lease the Additional Leased Premises, wholly on the
Landlord's behalf, to a Third Party for any term which shall expire
on or before October 31, 2001.
2.01 INABILITY TO GIVE OCCUPANCY
It is hereby agreed that if the Landlord is unable to deliver
vacant possession of the First Leased Premises on the Commencement
Date and/or vacant possession of the Additional Leased Premises on
November 1, 2001, by reason of the Leased Premises or the Building
being uncompleted or by reason of any previous tenant or occupant
overholding (but not by reason of circumstances beyond the
Landlord's control or by reason of the failure of the Tenant to
complete Tenant's Work herein or by reason of the Tenant failing on
or before the date occurring six (6) weeks prior to the
commencement of the Term herein to supply all necessary approvals
and specifications which the Landlord requires in order to complete
the Leasehold Improvements herein,) the Landlord shall diligently
exercise all of its rights to obtain completion and vacant
possession of the Leased Premises and the rent payable hereunder
shall abate at a rental per day equal to 1/365th of the Annual Rent
payable until such completion or vacant possession is obtained but
the Landlord shall not be liable to the Tenant for damages of any
nature whatsoever and this Lease shall continue in full force and
effect subject only to the abatement of rent as aforesaid.
2.02 EARLY OCCUPANCY
If the Tenant occupies the First Leased Premises prior to the
Commencement Date, then during the period up to the Commencement
Date the Tenant shall be a tenant of the Landlord subject to all
the covenants, conditions and agreements set out in this Lease and
at a rental per day equal to 1/365th of the Annual Rent and
Additional Rent and such rental shall be paid on or before the
commencement of the Term.
2.03 OVERHOLDING
If the Tenant shall continue to occupy the Leased Premises after
the expiration of this Lease with or without the consent of the
Landlord and without any further written agreement, the Tenant
shall be a monthly tenant at a rent equivalent to 150% of the
Monthly Rent and Additional Rent hereby reserved and subject to all
the terms and conditions herein set out except as to length of
tenancy.
3.00 RENT - Basic Rent
In each year during the Term of this Lease the Tenant covenants and
agrees to pay without any set-off or deduction whatsoever, to the
Landlord, as rent for the Leased Premises, and for the
non-exclusive use of the common areas of the Building on which the
Leased Premises is located (which common area allocation shall be
12% of the area of the Leased Premises), the following:
First Leased Premises:
Rental Rate
Per Sq. Foot For Leased For Common Total Per
Year Per Annum Premises Area Annum
---- --------- -------- ---- -----
1-5 $16.50 $ 961,002.90 $115,320.31 $1,076,323.21
6-10 $20.00 $1,164,852.00 $139,782.20 $1,304,634.20
Additional Leased Premises:
Rental Rate
Per Sq. Foot For Leased For Common Total Per
Year Per Annum Premises Area Annum
---- --------- -------- ---- -----
1-5 $16.50 $320,334.30 $38,440.05 $358,774.35
6-10 $20.00 $388,284.00 $46,594.00 $434,878.00
herein called "Annual Rent". The Annual Rent will be adjusted
proportionately for any lease year which is other than twelve
months.
3.01 MONTHLY RENTAL
The Annual Rent shall be payable in equal monthly installments
(hereinafter called the "Monthly Rent") in advance on the first day
of each calendar month during the Term. If the Term commences on
any day other than the first (1st) or ends on any day other than
the last of a calendar month, rent for the fraction of a month at
the commencement and at the end of the Term shall be prorated at a
rate per day equal to 1/365th of the Annual Rent payable. The
Annual Rent and the Monthly Rent may be varied based on the actual
area of the Leased Premises as certified by the Landlord.
3.02 ADDITIONAL RENT
The Tenant covenants to pay as additional rent all sums to be paid
to the Landlord hereunder including, without limiting the
generality of the foregoing, all tax on the Tenant's leasehold
improvements, Goods and Services Tax and the Tenant's Proportionate
Share of the Tax, Capital Tax, Landlord's Business Tax and
Operating Costs (herein called "Additional Rent").
3.03 ESTIMATED ADDITIONAL RENTALS
During the Term, the Tenant shall pay to the Landlord monthly in
advance on the 1st day of each and every month during the Term,
one-twelfth (1/12) of the amount of such annual Additional Rent as
reasonably estimated by the Landlord to be due from the Tenant.
Such estimates may be adjusted from time to time and re-adjusted by
the Landlord and the Tenant shall pay to the Landlord monthly
installments of Additional Rent according to such estimates, as so
adjusted.
3.04 DEFICIENCY OF ADDITIONAL RENT
If the aggregate amount of such estimated Additional Rent payments
made by the Tenant in any year should be less than the Additional
Rent due for such year, then the Tenant shall pay to the Landlord
as Additional Rent within ten (10) days of receipt of notice
thereof from the Landlord the amount of such deficiency.
3.05 EXCESS OF ADDITIONAL RENTAL INSTALLMENTS
If the aggregate amount of such Additional Rent payments made by
the Tenant in any year of the Term should be greater than the
Additional Rent due for such year, then should the Tenant not be
otherwise in default hereunder, the amount of such excess will be
applied by the Landlord to the next succeeding installments of such
Additional Rent due hereunder; and if there be any such excess for
the last year of the Term, the amount thereof will be refunded by
the Landlord to the Tenant within thirty (30) days after the
completion of the Landlord's year-end review provided the Tenant is
not otherwise in default under the terms of the Lease.
3.06 PRO-RATING OF ADDITIONAL RENT
If only part of any calendar year is included within the Term the
amount of the Additional Rent payable by the Tenant for such
partial year shall be prorated and shall be based upon the
estimates made by the Landlord and upon a final determination of
such Additional Rent, the amount remaining unpaid at the
termination of this Lease shall, notwithstanding such termination,
be adjusted and paid within a reasonable time thereafter.
3.07 PREPAYMENT OF ADDITIONAL RENT
Notwithstanding the foregoing, if the Landlord is required to pay
any amount, which it is entitled to collect from the tenants of the
Building, more frequently than provided for in this Lease or if the
Landlord is required to prepay any such amount, the Tenant shall
pay to the Landlord its portion of such amount calculated in
accordance with this Lease, forthwith upon demand.
3.08 DISPUTE AS TO AMOUNT OF ADDITIONAL RENT
In the event of any dispute by the Tenant as to the amount of any
Additional Rent claimed by the Landlord or the amount of the
Tenant's Proportionate Share thereof, the opinion of the Landlord's
auditors shall be conclusive and binding as to the amount thereof
for any period to which the opinion relates.
3.09 POST-DATED CHEQUES
The Tenant shall, on or before the commencement of each and every
Lease Year of the Term, including the first Lease Year, deliver to
the Landlord a series of post-dated cheques, one for each month of
the Lease Year, drawn for an amount equal to the amount of Monthly
Rent and the Additional Rent (as estimated by the Landlord) payable
in each month of such Lease Year, provided that the first such
payment is to include also any pro-rated Monthly Rent and
Additional Rent for the period from the date of the commencement of
the Term to the first day of the first full calendar month in the
Term, provided further that the obligation in the first Lease Year
shall be adjusted to take into account all advance rental paid
hereunder.
3.10 ADVANCE RENTAL
The Landlord hereby acknowledges receipt from the Tenant of the sum
of One Hundred Eighty Seven Thousand Five Hundred Fifty Dollars and
Ninety One Cents ($187,550.91) inclusive of G.S.T. to be held
without interest and applied against the first and last months'
Monthly Rent and Additional Rent.
3.11 MANNER AND PLACE OF PAYMENT OF RENT
All rent shall, until further written notice is received from the
Landlord, be paid by the Tenant without any prior demand therefor
to Kanata Research Park Corporation, at par in the City of Kanata
at the principal office of, Kanata Research Park Corporation, 555
Legget Drive, Suite 206, Kanata, Ontario, Canada K2K 2X3, or at
such other place in Canada as Kanata Research Park Corporation may
designate in writing from time to time and shall be payable in
lawful money of Canada. The Landlord agrees that payments made to
Kanata Research Park Corporation pursuant to this Lease shall be
deemed to be payments made to the Landlord and the Tenant shall not
be required to see to the application thereof.
3.12 DEFAULT
Any sums received by the Landlord from or for the account of the
Tenant when the Tenant is in default hereunder may be applied at
the Landlord's option to the satisfaction, in whole or part, of any
of the obligations of the Tenant then due hereunder in such manner
as the Landlord sees fit, and regardless of any designation or
instructions of the Tenant to the contrary.
3.13 ACCRUAL OF RENT
Rent shall be considered as annual and accruing from day to day,
and where it becomes necessary for any reason to calculate such
rent for an irregular period of less than one (1) year an
appropriate apportionment and adjustment shall be made. Where the
calculation of any Additional Rent is not made until after the
termination of this Lease, the obligation of the Tenant to pay such
Additional Rent shall survive the termination of this Lease and
such amounts shall be payable by the Tenant upon demand by the
Landlord.
3.14 NET LEASE
The Tenant acknowledges and agrees that it is intended that this
Lease shall be a completely carefree net lease for the Landlord and
that the Landlord shall not be responsible during the Term for any
costs, charges, expenses or outlays of any nature whatsoever
arising from or relating to the Leased Premises, whether foreseen
or unforeseen and whether or not within the contemplation of the
parties at the commencement of the Term except as shall be
otherwise expressly provided for in this Lease and other than
Income Tax due by the Landlord, the Tenant shall be responsible for
any business transfer tax, value added tax, multi-stage sales tax,
goods and services tax or any other tax or levy on rental income
that may be charged, levied or assessed by any government or other
applicable taxing authority against the Landlord whether known as a
goods and services tax or any other name ("Goods and Services
Tax").
4.00 TENANT'S BUSINESS TAX
In each and every year during the Term the Tenant covenants to pay
and discharge prior to the same becoming due and payable all taxes,
rates, duties and assessments and other charges that may be levied,
rated, charged or assessed against or in respect of the Tenant's or
other occupant's use and occupancy of the Leased Premises or in
respect of the Tenant's or other occupant's leasehold improvements,
equipment, machinery, trade fixtures and facilities situate or
installed on or in the Leased Premises and every tax and licence
fee in respect of any and every business carried on in the Leased
Premises or in respect of the use or occupancy thereof by the
Tenant (and any and every subtenant, licensee or occupant thereof)
whether such taxes, rates, duties, assessments and licence fees are
charged by any municipal, parliamentary, school or other body
during the term hereby demised. The Tenant will indemnify and keep
indemnified the Landlord from and against payment of all loss,
costs, charges and expenses occasioned by, or arising from any and
all such taxes, rates, duties, assessments, licence fees, and any
and all taxes which may in future be levied or charged in lieu of
such taxes; and any such loss, costs, charges and expenses suffered
by the Landlord may be collected by the Landlord as rent with all
rights of distress and otherwise as reserved to the Landlord in
respect of rent in arrears. The Tenant further covenants and agrees
that upon written request of the Landlord, the Tenant will promptly
deliver to the Landlord for inspection receipts for payment of all
such taxes, rates, duties, assessments, licence fees and other
charges in respect of all improvements, equipment and facilities of
the Tenant on or in the Leased Premises or in respect of any
business carried on in the Leased Premises which were due and
payable up to one (1) month prior to such request.
4.01 LANDLORD'S BUSINESS TAX
In the event that there are any taxes, rates, duties, assessments
or charges levied, rated, charged or assessed against the Landlord
by any municipal or other governmental authority with respect to
the Landlord's use or occupancy of any part of the Building or the
Land which the Tenant is entitled to use in common with other
persons or with respect to any other part of the Building which the
Landlord uses or occupies for the purpose of supplying services to
the Leased Premises (such taxes, rates, duties, assessments or
charges hereinafter called the "Landlord's Business Tax"), then it
is agreed that in addition to all other sums, the Tenant is
required to pay pursuant to this Lease, the Tenant shall pay to the
Landlord as Additional Rent, the Tenant's Proportionate Share of
such Landlord's Business Tax.
4.02 TAX ON TENANT'S LEASEHOLD IMPROVEMENTS
The Tenant shall pay to the Landlord as Additional Rent, in respect
of each applicable tax year, an amount equal to that portion of the
Tax for such tax year, as determined by the Landlord, which may
reasonably be regarded as being attributable to the fixtures,
improvements, installations, alterations, additions and equipment
from time to time made, erected or installed by or on behalf of the
Tenant in the Leased Premises.
4.03 PROPERTY TAX
"Tax" in this Lease means an amount equivalent to all taxes, rates,
duties, levies and assessments whatsoever levied, rated, charged or
assessed by any municipal, parliamentary, educational, school or
other governmental authority charged upon the Building, the Lands,
the property and all improvements now or hereafter appurtenant
thereto or upon the Landlord on account thereof including all
taxes, rates, duties, levies and assessments for local improvements
and including any tax which has been attracted by the Tenant's
leasehold improvements and equipment and for which the Tenant is
responsible hereunder and excluding any portion of Tax payable
solely by any other tenant and excluding any Tax charged against or
applicable to the other office buildings constructed on the Lands
and the parking spaces (excluding visitor parking) applicable to
such buildings and excluding such taxes as corporate income,
capital gains, profits or excess profits, taxes assessed upon the
income of the Landlord, and shall also include any and all taxes
which may in future be levied in lieu of Tax as hereinbefore
defined.
4.04 ALLOCATION OF TAX
If the Tax or any portion thereof that may be payable by the Tenant
by reason of this Lease, depends upon an assessment or an
approximation of an assessment which has not been made by the
taxing authority or authorities having jurisdiction, the Landlord
shall determine the same; any such determination made by the
Landlord shall be binding upon the Tenant unless shown to be
unreasonable or erroneous in some substantial respect. The Landlord
shall have the right from time to time to reasonably allocate and
re-allocate Taxes not charged separately to the various buildings
(including the Building) and the parking garages located on the
Lands.
4.05 SEPARATE SCHOOL TAXES
If the Tenant or any subtenant or licensee of the Tenant or any
occupant of the Leased Premises shall elect to have the Leased
Premises or any part thereof assessed for separate school taxes,
the Tenant shall pay to the Landlord, as additional rent, as soon
as the amount of the separate school taxes is ascertained, any
amount by which the amount of separate school taxes exceeds the
amount which would have been payable for Tax had such election not
been made and if the Tenant or any subtenant or licensee of the
Tenant shall elect to have the Leased Premises or any part thereof
assessed for separate school taxes as aforesaid and if such
separate school taxes are less than the taxes which would have been
payable for school taxes had such election not been made, then and
in that event, the Tenant shall be entitled to deduct from the rent
for the first month of the year following which such taxes were
payable, the amount by which the separate school taxes were less
than the amount which would have been payable for school taxes in
the year prior to such month.
4.06 TAX APPEAL
Any expense incurred by the Landlord in obtaining or attempting to
obtain a reduction in the amount of the Tax or the assessment upon
which the Tax may be based, shall be added to and included in the
amount of the Tax and if the Tenant shall have paid its
Proportionate Share of the Tax and the Landlord shall thereafter
receive a refund of any portion of the Tax, the Landlord shall make
an appropriate refund to the Tenant.
4.07 CAPITAL TAX
"Capital Tax" means the tax or excise imposed or capable of being
imposed upon the Landlord by any government authority having
jurisdiction which is measured or based in whole or in part upon
the taxable capital employed by the Landlord, which said taxable
capital shall be deemed to be the cost to the Landlord of said
Building and Lands computed as if the amount of such tax were that
amount due if the Building and the Lands were the only property of
the Landlord, the Landlord was entitled to no capital deduction,
investment allowance or any other deduction whatsoever. For the
purpose of this paragraph the Term "investment allowance" and
"capital deduction" shall be defined by reference to the applicable
taxing statute.
5.00 OPERATING COSTS
"Operating Costs" in this Lease means the total charges, expenses,
costs, fees, rentals, disbursements or outlays incurred, accrued,
paid, payable or attributable whether by the Landlord or others on
behalf of the Landlord for complete repair, maintenance, operation,
cleaning and management of the Building, Lands and all the
improvements thereon and the components of each of them (herein
collectively called the "Property") such as are in keeping with
maintaining the standard of a first class commercial Property so as
to give it high character and distinction; and including, without
limiting the generality of the foregoing, the cost of all repairs
and replacements required for such operation and maintenance, the
cost of maintaining and repairing the heating, air-conditioning,
ventilating and mechanical systems and equipment in the Building,
the cost of operating and maintaining any elevators, (including the
cost of service contracts); the costs of providing hot and cold
water; the costs of providing electricity not otherwise chargeable
to tenants; the costs of all fuel, gas and steam used in heating,
ventilating and air-conditioning; the cost of energy conservation
devices or equipment; the cost of snow removal; landscape
maintenance including the cost of replacing any landscaping on the
Lands; the cost of window cleaning; the cost of insurance premiums
for fire, casualty, liability, rental and any other insurance
coverage maintained by the Landlord in connection with the
Property; telephone and other utility costs; the amount paid or
payable for all salaries, wages and benefits and other payments
paid to or on behalf of persons engaged in the cleaning,
supervision, maintenance and repair of the Property (including
wages of the on site Property Manager); the cost of accounting
services necessary to prepare the statements and opinions for the
tenants and to compute the rents and other charges payable by the
tenants of the Building; the cost of porters, guards and other
protection services; the cost of providing security services; the
cost of garbage or refuse removal from the Building not otherwise
chargeable to tenants; the cost of repair and maintenance of the
roadways, curbs, paving, walkways, pools, landscaping, lighting and
other common facilities and outside areas; cost of services
provided for the common use of the tenants; building management
fees or an administrative fee (not exceeding the going rate charged
by trust companies or first class building Management Companies for
building management in the Regional Municipality of Ottawa-Carleton
for similar buildings); the cost of service contracts with
independent contractors and all other expenses, paid or payable by
the Landlord in connection with the operation of the Property, but
such Operating Costs shall not include any interest on any debt or
capital; retirement of any debt; any amounts directly chargeable by
the Landlord to any tenant or tenants of the Building and the cost
of any repairs paid for by insurance proceeds or for which the
Landlord was reimbursed by insurance proceeds.
5.01 ALLOCATION OF OPERATING COSTS
In determining the Operating Costs attributable to the Building,
the Landlord shall have the right from time to time to reasonably
allocate and re-allocate such Operating Costs which represent
operating costs incurred for facilities or services shared by the
Building and such other buildings as are owned or operated by the
Landlord and which are not charged or allocated separately against
the Building and any such other building or buildings. Any such
determination made by the Landlord shall be binding upon the Tenant
unless shown to be unreasonable or erroneous in some substantive
respect. The Tenant shall have the right to reasonable access to
the books and records of the Landlord to conduct an examination and
to ascertain whether allocations of Operating Costs made by the
Landlord have been made reasonably.
5.02 FULL OCCUPANCY
If in any year the Building has not been fully occupied for the
whole year, the amount of the Operating Costs for such year may be
adjusted by the Landlord, acting reasonably, to an amount which
reflects what the amount of the Operating Costs would be if the
Building had been fully occupied for the whole year.
5.03 USE OF ELECTRICITY
The Tenant's use of electricity in the Leased Premises shall be for
the operation of office lighting and business machines, such as
typewriters, desktop computers and other small office machines and
shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Leased
Premises. In order to ensure that such capacity is not exceeded and
to avert possible adverse effect upon the Building's electrical
service, the Tenant shall not, without the Landlord's prior written
consent in each instance, connect any additional fixtures,
appliances or equipment (other than normal office electrical
fixtures, lamps, typewriters and similar small office machines) to
the Building's electric distribution system or make any alteration
or addition to the electrical system of the Leased Premises
existing at the commencement of the Term. If the Landlord grants
such consent, the cost of all additional risers and other equipment
required therefor shall be paid as Additional Rent by the Tenant to
the Landlord upon demand. As a condition to granting such consent,
the Landlord may require the Tenant to agree to pay an increase in
the Additional Rent for Operating Costs by an amount which will
reasonably reflect the increased cost of the Landlord of the
additional electrical services to be furnished to the Leased
Premises by the Landlord.
5.04 METERS
The Tenant covenants to pay for the cost of any additional metering
which may be required by the Landlord to be installed in the
Building for the purpose of determining the amount of electricity,
gas, hydro or other utilities consumed by the Tenant in the Leased
Premises.
6.00 ASSIGNING OR SUBLETTING
The Tenant covenants that it will not assign or sublet the Leased
Premises or any part thereof without the prior written consent of
the Landlord, which consent shall not be unreasonably withheld save
and except in the event of any of the following, in which case the
Landlord may arbitrarily withhold its consent:
(a) an assignment or sublet of the whole of the Leased
Premises, the terms of which have a net present value that
are less or more than the net present value of the terms
of the Lease (not including the value of initial leasehold
improvements, leasing commissions or inducements of any
kind under the Lease) and in the latter event if the
Landlord consents to such assigned or sublet the Tenant
shall pay the increased value to the Landlord as
Additional Rent.;
(b) a sublet of a part of the Leased Premises;
(c) where the assignee or subtenant is then a tenant of the
Landlord at the Building and the Landlord has or will have
during the next following six (6) months, vacant space for
rent in the Building.
6.01 REQUEST TO ASSIGN OR SUBLET
If the Tenant requests the Landlord's consent to an assignment of
this Lease or to a subletting of the whole or any part of the
Leased Premises, the Tenant shall submit to the Landlord the name
and address of the proposed assignee or subtenant together with a
copy of an offer or agreement to assign or sublet or the sublease
or assignment and such additional information as to the nature of
its business and its financial responsibility and standing
(including financial statements) as the Landlord may reasonably
require ("required information").
6.02 LANDLORD'S RIGHT TO CANCEL
Upon receipt of such request and the required information from the
Tenant, the Landlord shall have the right, exercisable in writing
within thirty (30) days after such receipt, to cancel and terminate
this Lease if the request is to assign this Lease or to sublet all
of the Leased Premises, or, if the request is to sublet a portion
of the Leased Premises only, to cancel and terminate this Lease
with respect to such portion, in each case as of the date set forth
in the Landlord's notice of exercise of right ("Landlord's notice
of termination"), which shall be neither less than sixty (60) days
nor more than one hundred and twenty (120) days following the
delivery of the Landlord's notice of termination. If the Landlord
shall exercise such right, the Tenant shall surrender possession of
the entire Leased Premises or the portion which is the subject of
the right, as the case may be, on the date set forth in the
Landlord's notice of termination in accordance with the provisions
of this Lease relating to the surrender of the Leased Premises at
the expiration of the Term. If this Lease shall be cancelled as to
a portion of the Leased Premises only, the rent payable by the
Tenant under this Lease shall be abated proportionately. In the
event that the Landlord shall not exercise the right to cancel this
Lease, then the Landlord's consent to any such request to assign or
sublet shall not be unreasonably withheld.
6.03 ASSIGNMENT AGREEMENT
The Landlord's consent to any assignment may be conditional upon
the assignee entering into an assignment in form and content
satisfactory to the Landlord, to perform, observe and keep each and
every covenant, condition and agreement in this Lease on the part
of the Tenant to be performed, observed and kept including the
payment of rent and all other sums and payments agreed to be paid
or payable under this Lease on the days and times and in the manner
specified.
6.04 CONSENT NOT TO RELEASE TENANT
In no event shall any assignment or subletting to which the
Landlord may have consented release or relieve the Tenant from his
obligations fully to perform all the terms, covenants and
conditions of this Lease to be performed.
6.05 CHANGE IN CORPORATE CONTROL
If the Tenant is a corporation or if this Lease, with the written
consent of the Landlord, is assigned to a corporation, and if at
any time during the Term any part or all of the corporate shares or
voting rights of shareholders shall be transferred by sale,
assignment, bequest, inheritance, trust, operation of law or other
disposition, or treasury shares be issued, so as to result in a
change in the control of such corporation by the person or persons
now owning a majority of the corporate shares thereof, the Landlord
may terminate this Lease at any time after such change in control
by giving the Tenant thirty (30) days prior written notice of such
termination. The Tenant shall, at the request of the Landlord, make
available to the Landlord for inspection or copying, or both, all
books and records of the Tenant which, alone or with other data,
show the applicability or inapplicability of this paragraph. If any
stockholder or shareholder of the Tenant shall, after the request
of the Landlord so to do, fail or refuse to furnish forthwith to
the Landlord any data verified by the affidavit of such stockholder
or shareholder or other credible person, which data, alone or with
other data show the applicability or inapplicability of this
paragraph, the Landlord may terminate this Lease by giving the
Tenant thirty (30) days' prior written notice of such termination.
6.06 NOTICE OF CHANGE OF CONTROL
Where there is a change in corporate control of the Tenant, the
Tenant shall forthwith so advise the Landlord in writing.
6.07 COST OF CONSENT
The Tenant further agrees that prior to any consent for assignment,
subletting or change in control being effective and binding upon
the Landlord, the Tenant shall pay on demand the Landlord's
reasonable costs (including the Landlord's own administrative
costs) incurred in connection with the Tenant's request for such
consent.
7.00 TENANT'S COVENANTS
The Tenant further covenants with the Landlord as follows:
7.01 TENANT REPAIRS
To repair, maintain and keep the Leased Premises and all trade
fixtures and improvements therein in good and substantial repair
subject only to defects in construction of the structural members
of the Building, reasonable wear and tear and damage by fire,
lightning and tempest or other casualty against which the Landlord
is insured (herein collectively referred to as "Tenant Repair
Exceptions"); and that the Landlord may enter and view state of
repair and that the Tenant will repair according to notice in
writing, except for Tenant Repair Exceptions and that the Tenant
will leave the Leased Premises in good repair, except for Tenant
Repair Exceptions. Notwithstanding anything hereinbefore contained,
the Landlord may in any event make repairs to the Leased Premises
without notice if such repairs are, in the Landlord's opinion,
necessary for the protection of the Building and the Tenant
covenants and agrees with the Landlord that if the Landlord
exercises any such option to repair, the Tenant will pay to the
Landlord together with the next instalment of Monthly Rent which
shall become due after the exercise of such option all sums which
the Landlord shall have expended in making such repairs and that
such sums, if not so paid within such time, shall be recoverable
from the Tenant as rent in arrears. Provided further that in the
event that the Landlord from time to time makes any repairs as
hereinbefore provided, the Tenant shall not be deemed to have been
relieved from the obligation to repair and leave the Leased
Premises in a good state of repair.
7.02 RULES AND REGULATIONS
That the Tenant and his employees and all persons visiting or doing
business with him on the Leased Premises shall be bound by and
shall observe rules and regulations annexed hereto or as may
hereafter be reasonably set by the Landlord of which notice in
writing shall be given to the Tenant and upon such notice being
delivered all such rules and regulations shall be deemed to be
incorporated into and form part of this Lease.
7.03 USE OF PREMISES
The Tenant shall not cause, suffer or permit the Leased Premises to
be used for any purpose other than office use, to include general
office, sales, software and product design, engineering and testing
laboratories and related uses.
7.04 INCREASE IN INSURANCE PREMIUMS
That it will not keep, use, sell or offer for sale in or upon the
Leased Premises any article which may be prohibited by any
insurance policy in force from time to time covering the Building
including any regulations made by any fire insurance underwriters
applicable to such policies. In the event the Tenant's occupancy or
conduct or business in, or on the Leased Premises, whether or not
the Landlord has consented to the same, results in any increase in
premiums for the insurance carried from time to time by the
Landlord with respect to the Building, the Tenant shall pay any
such increase in premiums as Additional Rent within ten (10) days
after bills for such additional premiums shall be rendered by the
Landlord. In determining whether increased premiums are a result of
the Tenant's use or occupancy of the Leased Premises, a schedule
issued by the organization computing the insurance rate on the
Building showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up
such rate. The Tenant shall promptly comply with all reasonable
requirements of the insurance authority or of any insurer now or
hereafter in effect relating to the Leased Premises.
7.05 CANCELLATION OF INSURANCE
If any policy of insurance upon the Building or any part thereof or
upon the Lands or any part thereof shall be cancelled or rendered
voidable by the insurer by reason of any act, omission or
occupation of the Leased Premises or any part thereof by the
Tenant, any assignee or subtenant of the Tenant or by anyone
permitted by the Tenant to be upon the Leased Premises, and the
Tenant, after receipt of notice from the Landlord, shall have
failed to immediately reinstate such insurance policies or avoid
cancellation of such insurance policies, the Landlord may at its
option determine this Lease forthwith by leaving upon the Leased
Premises notice in writing of its intention so to do and thereupon
rent and any other payments for which the Tenant is liable under
this Lease shall be apportioned and paid in full to the date of
such determination and the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord and the Landlord
may re-enter and take possession of the same or the Landlord shall
pay any increased cost of such insurance and the Tenant shall pay
as Additional Rent, on demand, the amount by which the premiums for
such insurance are so increased.
7.06 OBSERVANCE OF LAW
To comply promptly at its own expense with all provisions of law
including without limitation, federal and provincial legislative
enactments, building by-laws, and any other governmental or
municipal regulations which relate to the partitioning, equipment,
operation and use of the Leased Premises, and to the making of any
repairs, replacements, alterations, additions, changes,
substitutions or improvements of or to the Leased Premises. And to
comply with all police, fire and sanitary regulations imposed by
any federal, provincial or municipal authorities or made by fire
insurance underwriters, and to observe and obey all governmental
and municipal regulations and other requirements governing the
conduct of any business conducted in the Leased Premises. Provided
that in default of the Tenant so complying the Landlord may at its
option where possible comply with any such requirement and the cost
of such compliance shall be payable on demand by the Tenant to the
Landlord as Additional Rent.
7.07 WASTE AND OVERLOADING OF FLOORS
Not to do or suffer any waste or damage, disfiguration or injury to
the Leased Premises or the fixtures and equipment thereof or permit
or suffer any overloading of the floors thereof; and not to place
therein any safe, heavy business machine or other heavy thing
without first obtaining the consent in writing of the Landlord; and
not to use or permit to be used any part of the Leased Premises for
any dangerous, noxious or offensive trade or business and not to
cause or permit any nuisance in, at or on the Leased Premises; and
without the prior consent in writing of the Landlord, the Tenant
will not bring onto or use in the Leased Premises or permit any
person subject to the Tenant to bring onto or use on the Leased
Premises any fuel or combustible material for heating, lighting or
cooking nor will it allow onto the Leased Premises any stove,
burner, kettle, apparatus or appliance for utilizing the same and
the Tenant will not purchase, acquire or use electrical current or
gas for consumption on the Leased Premises except from such
supplier thereof as shall have been approved in writing by the
Landlord.
7.08 INSPECTION
To permit the Landlord, its servants or agents to enter upon the
Leased Premises at any time and from time to time for the purpose
of inspection and of making repairs, alterations or improvements to
the Leased Premises or to the Building and the Tenant shall not be
entitled to compensation for any inconvenience, nuisance or
discomfort occasioned thereby. The Landlord, its servants or agents
may at any time and from time to time enter upon the Leased
Premises to remove any article or remedy any condition which, in
the opinion of the Landlord, reasonably arrived at, would be likely
to lead to cancellation of any policy of insurance and such entry
by the Landlord shall not be deemed to be a re-entry. The Tenant
shall, upon written request of the Landlord, produce audited
Financial Statements of the Tenant, which statements shall include
a Balance Sheet, Income Statement, Statement of Retained Earnings,
Statement of Source and Application of Funds.
7.09 INDEMNITY TO LANDLORD
To promptly indemnify and save harmless the Landlord for any and
all liabilities, damages, costs, claims, suits or actions of any
nature or kind including the full cost to the Landlord in resisting
or defending the same to which the Landlord shall or may become
liable or suffer arising out of or by reason of:
(a) any breach, violation or non-performance by the
Tenant of any of its covenants and obligations under
this Lease;
(b) any damage to property while said property shall be in or
about the Leased Premises including the systems,
furnishings and amenities thereof, as a result of the
negligence, misuse or wilful act of the Tenant, its
express or implied invitees, licensees, agents, servants
or employees; and
(c) any injury to any invitee, licensee, agent, servant or
employee of the Tenant, including death resulting at any
time therefrom, occurring on or about the Leased Premises,
the Property or the Lands;
and this indemnity shall survive the expiry or sooner determination
of this Lease.
7.10 DAMAGE BY TENANT
That if the Building including the Leased Premises, the elevators,
boilers, engines, pipes and other apparatus (or any of them) used
for the purpose of heating, ventilating or air-conditioning the
Building or operating the elevators, or if the water pipes,
drainage pipes, electric lighting or other equipment of the
Building or the roof or outside walls or other parts of the
Building will not function properly or become damaged or destroyed
through the negligence, carelessness or misuse of the Tenant, or of
any of its invitees, licensees, agents, servants, employees,
clients, customers or contractors, or through it or them in any way
stopping up or injuring any heating, ventilating or
air-conditioning apparatus, elevators, water pipes, drainage pipes
or other equipment or parts of the Building, the expense of the
necessary repairs, replacements or alterations shall be borne by
the Tenant and paid forthwith on demand to the Landlord as
Additional Rent.
7.11 TENANT INSURANCE
(a) To maintain in force during currency of this Lease at the
Tenant's expense insurance policies to cover the
following:
(i) comprehensive general liability insurance
with limits of not less than Five Million
Dollars ($5,000,000.00) (including bodily
injury and property damage, tenant's legal
liability, cross liability and contractual
liability) to cover all responsibilities
assumed by the Tenant with respect to the
use or occupancy of and the business carried
on, in or from the Leased Premises, in
amounts acceptable to the Landlord;
(ii) all risk insurance covering leasehold
improvements made or installed by or on
behalf of the Tenant in an amount equal to
the full replacement value thereof; and
(iii) any other insurance that the Landlord (or
the Landlord's mortgagee, if any) may
reasonably require from time to time in form
and amounts and for insurance risks against
which a prudent Tenant would protect itself;
(b) That all Tenant's insurance required hereunder shall be
with insurers and upon terms and conditions to which the
Landlord has no reasonable objection. Copies of all
policies, or certificates evidencing the insurance or its
renewal shall be delivered to the Landlord at the
Landlord's request;
(c) That all policies of insurance to be maintained by the
Tenant shall, in the case of general liability insurance,
include the Landlord (and, where applicable, the
Landlord's mortgagee) as additional insured and, in the
case of all other insurance coverage, contain a waiver by
the insurer and Tenant of any rights of subrogation or
indemnity or any other claim to which the insurer might
otherwise be entitled against the Landlord (and mortgagee)
or the agents or employees of the Landlord. All such
insurance policies shall also contain a provision
prohibiting the insurer from cancelling or altering the
insurance coverage without first giving the Landlord
thirty (30) days prior written notice thereof;
(d) That if the Tenant fails to take out or maintain in force
such insurance, the Landlord may take out the necessary
insurance and pay the premium therefor and the Tenant
shall pay to the Landlord the amount of such premium
immediately on demand as Additional Rent; and
(e) That if both the Landlord and the Tenant have claims to be
indemnified under any such insurance, the indemnity shall
be applied first to the settlement of the claim of the
Landlord and the balance, if any, to the settlement of the
claim of the Tenant.
7.12 NO ABATEMENT OF RENT
That there shall be no abatement or reduction of rent and that the
Landlord shall not be liable for any damage howsoever caused to
property of the Tenant or of any person subject to the Tenant which
is in or upon or being brought to or from the Leased Premises or
the Building or for personal injury (including death) sustained in
any manner by the Tenant or any person subject to the Tenant while
the Tenant or any such person is on or upon entering or leaving the
Leased Premises or Building unless such property damage or personal
injury may have been attributable to fault or neglect on the part
of the Landlord or of any person for whom the Landlord is at law
responsible, and that the Tenant will indemnify and save harmless
the Landlord from and against all claims and demands made against
the Landlord by any person for or arising out of any such property
damage or personal injury.
7.13 EXHIBITING PREMISES
To permit the Landlord or its agents or servants to enter and show
the Leased Premises, during normal business hours, to prospective
purchasers of the Building and may after notice of termination of
this Lease has been given or within the last six (6) months of the
Term, enter and show the Leased Premises to prospective tenants and
erect signs stating that the premises are "To Let".
7.14 SIGNS
The Tenant shall not paint, display, inscribe or place any sign,
symbol, notice or lettering of any kind anywhere outside the Leased
Premises or within the Leased Premises so as to be visible from the
outside of the Building or the common areas thereof with the
exception only of an identification sign at the entrance to the
Leased Premises (which sign shall be subject to the Landlord's
written approval as to size, design and location) and the Tenant's
name on the directory listing (if any) in the main lobby of the
Building.
7.15 NAME OF BUILDING
Not to refer to the Building by any name other than that designated
from time to time by the Landlord and the Tenant shall use the name
of the Building for the business address of the Tenant but for no
other purpose.
7.16 KEEP TIDY
The Tenant shall provide its own cleaning and janitorial services.
At the end of each business day, the Tenant shall leave the Leased
Premises in a tidy condition.
7.17 DELIVERIES
The Tenant shall receive, ship, take delivery of and allow and
require suppliers or others to deliver or take delivery of
merchandise, supplies, fixtures, equipment, furnishings, wares or
merchandise only through the loading entrance and other facilities
provided for that purpose and at the times set by the Landlord.
7.18 NOTICE OF DAMAGE
To notify the Landlord promptly of any damage to or defect in the
Leased Premises or the Building or any part thereof including any
electrical, plumbing, heating, ventilating, air-conditioning,
water, sprinkler or gas systems or equipment, or the water pipes,
gas pipes, telephone lines or electrical apparatus within or
leading to the Leased Premises, and in case of fire to give
immediate notice thereof to the Fire Department.
7.19 ALTERATIONS, ETC
The Tenant will not make or erect in or to the Leased Premises any
installations, alterations, additions or partitions or remove or
change the location or style of any installations, alterations,
equipment, outlets, piping or wiring relating to the electrical,
plumbing, water, gas, air-conditioning, heating or ventilating
systems without submitting drawings and specifications to the
Landlord and obtaining the Landlord's prior written consent in each
instance. The Tenant must further obtain the Landlord's prior
written consent to any change or changes in such drawings and
specifications submitted as aforesaid. The Tenant's request for
such consent shall be in writing and accompanied by an adequate
description of contemplated work and with appropriate working
drawings and specifications thereof. The Landlord's cost of having
its architects or engineers examine such drawings and
specifications shall be payable by the Tenant. The Landlord may
require that any and all work be performed by the Landlord's
contractors or workmen or by contractors or workmen engaged by the
Tenant but in each case only under written contract approved in
writing by the Landlord and subject to all reasonable conditions
which the Landlord may impose and subject to inspection by and
reasonable supervision of the Landlord (including a supervision fee
to be paid by the Tenant to the Landlord equal to fifteen percent
(15%) of the total cost of such work). The Landlord may at its
option require that only the Landlord's contractors be engaged for
any mechanical, electrical, plumbing, structural or sprinkler work
to be done in the Leased Premises. Any work performed by or for the
Tenant shall be performed by competent workmen whose labour union
affiliations are not incompatible with those of any workmen who may
be employed in the Building by the Landlord, its contractors or
subcontractors. The cost of all such work and of all materials,
labour and services involved therein and of all services,
necessitated thereby shall be at the sole cost and expense of the
Tenant and shall be completed in a good and workmanlike manner and
with reasonable diligence in accordance with the description of the
work approved by the Landlord. Any such alterations, additions, and
fixtures shall, when made or installed, be and become the property
of the Landlord without payment being made therefor; provided that
upon the determination of this Lease the Landlord may at its option
require the Tenant, or itself at the Tenant's expense, to remove
the same and to restore the Leased Premises to the condition in
which they were at the commencement of this Lease.
7.20 CONSTRUCTION LIENS
The Tenant covenants that he will not suffer or permit during the
Term hereof any construction or other liens for work, labour,
services or material ordered by him or for the cost of which he may
be in any way obligated to attach to the Leased Premises or the
Building or the Land and that whenever and so often as any such
liens shall attach or claims therefor shall be filed, the Tenant
shall within twenty (20) days after the Tenant has notice of the
claim for lien, procure the discharge thereof by payment or by
giving security or in such manner as is or may be required or
permitted by law.
7.21 SECURITY
The Tenant will maintain on the Leased Premises sufficient moveable
property to guarantee the payment of one (1) year's Annual Rent and
Additional Rent.
7.22 HAZARDOUS SUBSTANCES
(a) The Tenant shall not cause or permit any Hazardous
Substances to be brought onto, created in, released
or discharged from, placed or disposed of, at or near
the Leased Premises, Building or Lands;
(b) The Tenant shall not cause or permit to occur any
violation of any federal, provincial, municipal or
local law, ordinance, or regulation, now or
hereinafter enacted (the "Laws"), relating to
environmental conditions on, under, at, near or about
the Leased Premises, Building or Lands, or relating
to the Landlord, the Tenant or the Building, air,
soil or ground water condition, including without
limitation, the generation, storage or disposal of
Hazardous Substances;
(c) For the purposes of this section, "Hazardous
Substances" means any substance, or class of
substance or mixture of substances which may be
detrimental to the environment, plant or animal life,
or human health and includes, without limitation,
flammable, explosives, or radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals
believed to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic
substances and related materials, petroleum and
petroleum products, any substance that, if added to
water, may degrade or alter or form part of a process
of degradation or alteration of the quality or
temperature of that water to the extent that it is
detrimental to its use by man or by any animal, fish
or plant, and substances declared to be hazardous or
toxic under any law or regulation now or hereafter
enacted or promulgated by any governmental authority
having jurisdiction over the Landlord, the Tenant,
the Leased Premises or the Building (the
"Authorities");
(d) The Tenant shall, at its own expense, comply with the
Laws;
(e) The Tenant shall, at its own expense, make all
submissions to, provide all information required by,
and comply with all requirements of the Authorities
under the Laws;
(f) The Tenant shall indemnify, defend and hold harmless
the Landlord, the Landlord's mortgagees, any manager
of the building, and their respective officers,
directors, beneficiaries, shareholders, partners,
agents and employees, from all fines, suits,
procedures, claims and actions of every kind, and all
costs associated therewith (including legal fees on a
solicitor and his own client basis and consultants'
fees) arising out of or in any way connected with any
deposit, spill, discharge, or other release of
Hazardous Substances that occurs during the Term or
any renewal or extension period, at or from the
Leased Premises, or which arises at any time from the
Tenant's use or occupancy of the Leased Premises, or
from the Tenant's failure to provide all information,
make all submissions, and take all steps required by
this Section or by the Authorities;
(g) Notwithstanding any other provision of this Lease, if
the Tenant creates or brings to the Leased Premises
any Hazardous Substances or if the conduct of the
Tenant's business shall cause there to be any
Hazardous Substances at or near the Leased Premises,
or discharged or released on, under or about the
Leased Premises, the building or the lands upon which
the building is constructed, the air, soil or ground
water, then, notwithstanding any rule of law to the
contrary, such Hazardous Substances shall be and
remain the sole and exclusive property of the Tenant
and shall not become the property of the Landlord,
notwithstanding the degree of affixation to the
Premises of the Hazardous Substances or the goods
containing the Hazardous Substances. This affirmation
of the Tenant's interest in the Hazardous Substances
or the goods containing the Hazardous Substances
shall not however prohibit the Landlord from dealing
with such material as otherwise provided for in this
Lease.
7.23 NUISANCE
The Tenant shall not cause or maintain any nuisance in or about
the Leased Premises, and shall keep the Leased Premises free of
debris, rodents, vermin and anything of a dangerous noxious or
offensive nature or which could create a fire hazard (through
undue load on electrical circuits or otherwise) or undue
vibration, heat or noise.
8.00 LANDLORD'S COVENANTS
The Landlord further covenants with the Tenant:
8.01 QUIET ENJOYMENT
The Landlord covenants with the Tenant that if the Tenant pays the
Annual Rent, Additional Rent and all other sums reserved herein and
observes and performs the covenants, conditions and agreements set
out in this Lease, the Tenant shall and may peaceably possess and
enjoy the Leased Premises during the Term without interruption or
disturbance from the Landlord.
8.02 TAXES, ETC.
To pay or cause to be paid all taxes and rates, municipal,
parliamentary or otherwise, including, without limiting the
generality of the foregoing, water rates with respect to the Lands,
the Building or assessed against the Landlord in respect thereof,
except those directly assessed or charged to or payable by the
Tenant or assessed or charged with reference to the use or
occupation of the Leased Premises and except as otherwise provided
in this Lease.
8.03 HEATING AND AIR-CONDITIONING
To provide for heating and air-conditioning so that when heat is
reasonably required for the reasonable use of the Leased Premises
the Landlord will furnish heat therefor up to a reasonable
temperature and when the heating system is not in use and the
Landlord considers that air-conditioning is reasonably required it
will operate the air-conditioning systems in the Building. The said
heating and air-conditioning systems will be maintained by the
Landlord during normal business hours except during the making of
repairs and should the Landlord make default in so doing, it shall
not be liable for any indirect or consequential damages for
personal discomfort or illness due to such default. The Landlord
reserves the right to stop the services of the heating and/or
air-conditioning equipment when necessary by reason of any accident
or any repairs, alterations or improvements which, in the judgment
of the Landlord, are desirable or necessary to be made until such
repairs, alterations or improvements shall have been completed. The
Landlord shall have no further responsibility or liability for
failure to supply the said heating and/or air-conditioning service
when prevented from doing so, by strikes or by any cause beyond the
Landlord's reasonable control or by orders or regulations by any
body or authority having jurisdiction or by other reason of any
failure of electrical current, steam or water or suitable power
supply or inability upon the exercise of reasonable diligence to
obtain such electrical current, steam or water for the operation of
the heating or air-conditioning equipment.
8.04 REPAIR OF STRUCTURE
To repair, replace and maintain the structural parts of the
Building, and to perform such repairs, replacements and maintenance
with reasonable dispatch, and in a good and workmanlike manner, at
any time and from time to time, and notwithstanding anything
contained herein to the contrary, the Tenant shall not be entitled
to compensation for any inconvenience, nuisance or discomfort
occasioned thereby.
8.05 JANITORIAL SERVICES
To provide janitorial and cleaning services to the common areas of
the Building. The Landlord shall not be responsible for any act of
omission or commission on the part of any person or persons
employed to clean the Leased Premises or the Building.
8.06 DELAYS IN PROVISION OF SERVICES
It is understood and agreed that whenever and to the extent that
the Landlord shall be unable to fulfil, or shall be delayed or
restricted in the fulfilment of any obligation hereunder in respect
of the supply or provision of any service or utility or the doing
of any work or the making of any repairs by reason of being unable
to obtain the material, goods, equipment, service, utility or
labour required to enable it to fulfil such obligation or by reason
of any statute, law or order-in-council or any regulation or order
passed or made pursuant thereto or by reason of the order or
direction of any administrator, controller or board, or any
governmental department or officer or other authority, or by reason
of not being able to obtain any permission or authority required
thereby, or by reason of any other cause beyond its control whether
of the foregoing character or not, the Landlord shall be entitled
to extend the time for fulfilment of such obligation by a time
equal to the duration of such delay or restriction, and the Tenant
shall not be entitled to compensation for any inconvenience,
nuisance, discomfort, direct or indirect or consequential damage or
damages thereby occasioned.
9.00 TENANT'S FIXTURES
The Tenant may install its usual trade fixtures in the usual
manner, provided such installation does not damage the structure of
the Leased Premises or the Building and provided further that the
Tenant shall have submitted detailed plans and specifications for
such trade fixtures to the Landlord and obtained its written
consent thereto which consent shall not be unreasonably withheld.
9.01 REMOVAL OF TENANT'S FIXTURES
Provided that the Tenant may remove his trade or tenant's fixtures;
provided further, however, that all installations, alterations,
additions, partitions, and fixtures other than trade or tenant's
fixtures in or upon the Leased Premises, whether placed there by
the Tenant or the Landlord, shall immediately upon such placement,
be the Landlord's property without compensation therefor to the
Tenant and, except as hereinafter mentioned in this paragraph shall
not be removed from the Leased Premises by the Tenant at any time
either during or after the term. Notwithstanding anything herein
contained, the Landlord shall be under no obligation to repair or
maintain the Tenant's installations, alterations, additions,
partitions and fixtures or anything in the nature of a leasehold
improvement made or installed by the Tenant or Landlord or third
party; and further, notwithstanding anything herein contained, the
Landlord shall have the right upon termination of this Lease by
affluxion of time or otherwise or within six (6) months thereafter
to require the Tenant to remove, or require the Tenant to pay to
the Landlord the cost to remove, any installations, alterations,
additions, partitions and fixtures or anything in the nature of a
leasehold improvement made or installed by the Tenant, the Landlord
or a third party, whether for the Tenant or a previous occupant,
and make good any damage caused to the Leased Premises by such
installation or removal.
10.00 DAMAGE OR DESTRUCTION OF LEASED PREMISES
Provided that if during the continuation of this Lease, the
Building or the Leased Premises are destroyed or damaged by any
cause whatsoever, then the following provisions shall apply:
10.01 PARTIAL DAMAGE
If damage shall occur to the Building or the Leased Premises so
that all or part of the Leased Premises are rendered untenantable
by damage from fire or other casualty which, in the reasonable
opinion of the Landlord's architect, can be substantially repaired
under applicable laws and governmental regulations within ninety
(90) days from the date of such casualty (employing normal
construction methods without overtime or other premium), the
Landlord shall cause such damage to be repaired with all reasonable
speed.
10.02 TOTAL DAMAGE
If the Building or the Leased Premises are damaged to such an
extent that the Leased Premises are rendered untenantable by damage
from fire or other casualty which, in the reasonable opinion of the
Landlord's architect, cannot be substantially repaired under
applicable laws and governmental regulations within ninety (90)
days from the date of such casualty (employing normal construction
methods without overtime or other premium), then either the
Landlord or Tenant may elect to terminate this Lease as of the date
of such casualty by written notice delivered to the other not more
than ten (10) days after receipt of such architect's opinion
(failing which the Landlord shall cause such damage to be repaired
at its own expense with all reasonable speed).
10.03 OBLIGATION TO REPAIR
The Landlord's obligation to repair as set forth in the preceding
two paragraphs hereof is conditional upon the Landlord receiving
adequate proceeds from policies of insurance maintained in respect
of such casualties or, if such proceeds are not made available to
the Landlord, the Landlord electing to obtain its own financing for
such repairs. In the event that no such proceeds of insurance are
available to the Landlord and if the Landlord elects not to obtain
its own financing for such repairs, then the Landlord shall, by
notice in writing to the Tenant delivered within ten (10) days
after receipt of the opinion of the Landlord's architect, notify
the Tenant that the Lease is terminated, which termination shall be
effective as of the date of such casualty. In calculating the
amount of insurance proceeds available, the Landlord will be deemed
to have received the deductible portion of any insurance policy.
10.04 ABATEMENT OF RENT
If the Landlord is required to repair the damage pursuant to the
provisions hereof and does not elect to terminate the Lease, the
Annual Rent and Additional Rent payable by the Tenant under this
Lease shall be proportionately reduced to the extent that the
Leased Premises are thereby rendered unusable by the Tenant in its
business from the date of such casualty until completion by the
Landlord of the repairs to the Leased Premises and the Building so
that the Leased Premises are thereafter fully usable by the Tenant
in its business.
10.05 DAMAGE TO 50% OF BUILDING
Notwithstanding anything otherwise contained in this Lease, if
fifty percent (50%) or more of the rentable area of the Building is
damaged or destroyed and if, in the reasonable opinion of the
Landlord's Architect, the said rentable area cannot be rebuilt or
made fit for the purposes of the tenants thereof within ninety (90)
days of the date of such casualty, the Landlord may, at its option,
terminate this Lease by giving notice of termination to the Tenant
within thirty (30) days of the date of such casualty and the Tenant
shall, with reasonable dispatch and expedition, but in any event
within sixty (60) days after delivery of the notice of termination,
deliver up possession of the Leased Premises to the Landlord and
the rent and other payments for which the Tenant is liable
hereunder shall be apportioned and paid to the date possession is
so delivered up.
10.06 COMPLETION OF REPAIR
Provided that, if, upon the completion by the Landlord of any
repairs required as a result of any such destruction or damage, a
dispute shall arise between the Landlord and the Tenant as to
whether or not the Leased Premises have been made fit for the
purposes of the Tenant under this Lease, the Landlord may, at its
option, terminate this Lease by giving thirty (30) days notice to
the Tenant and if such notice shall be given this Lease shall, at
the expiration of such period, be at an end and the Tenant shall
deliver up the Leased Premises to the Landlord or whom it may
appoint and the Landlord may, on demand, recover the full rental
hereby reserved computed from the date on which such repairs were
completed up to the date on which the Tenant is required to vacate.
11.00 LIABILITY FOR DAMAGE TO PROPERTY
In the absence of negligence or wilful act or default on the part
of the Landlord, its servants, agents or workmen, the Landlord
shall not be liable or responsible in any way for any loss, damage
or injury to any person or for any loss of or damage to any
property belonging to the Tenant, to employees of the Tenant or to
any other person while such property is in the Leased Premises or
in the Building or in or on the surrounding, Lands and buildings
owned by the Landlord, the areaways, the parking garages, the
parking areas, lawns, sidewalks, reflective pools, steps,
platforms, corridors, stairways or elevators whether or not any
such property has been entrusted to employees of the Landlord and
without limiting the generality of the foregoing, the Landlord
shall not be liable for any damage to any such property caused by
theft or breakage or by steam, water, rain or snow which may leak
into, issue or flow from any part of the Building or from the
water, steam or drainage pipes or plumbing works of the Building or
from any other place or quarter or for any 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 by any other tenant in the Building or for any other loss
whatsoever with respect to the Leased Premises, goods placed
therein or any business carried on therein.
12.00 DEFAULT OF TENANT
Provided and it is hereby expressly agreed that if and whenever the
Annual Rent or Additional Rent hereby reserved or any part thereof
shall not be paid on the day appointed for payment thereof, whether
lawfully demanded or not, or in case of breach or non-observance or
non-performance of any of the covenants, agreements, provisos,
conditions or Rules and Regulations on the part of the Tenant to be
kept, observed or performed, or in case the Leased Premises shall
be vacated or remain unoccupied for fifteen (15) days or in case
the Term shall be taken in execution or attachment for any cause
whatever, then and in every such case, it shall be lawful for the
Landlord thereafter to enter into and upon the Leased Premises or
any part thereof in the name of the whole and the same to have
again, repossess and enjoy as of its former estate, anything in
this Lease contained to the contrary notwithstanding other than the
proviso to this paragraph; PROVIDED that the Landlord shall not at
any time have the right to re-enter and forfeit this Lease by
reason of the Tenant's default in the payment of the rent reserved
by this Lease, unless and until the Landlord shall have given to
the Tenant written notice setting forth the default complained of
and the Tenant shall have the right during five (5) business days
next following the date on such notice to cure any such default in
payment of rent. In case without the written consent of the
Landlord, the Leased Premises shall be used by any other person
than the Tenant or for any other purpose than that for which the
same were let or in case the Term or any of the goods and chattels
of the Tenant shall be at any time seized in execution or
attachment by any creditor of the Tenant or if the Tenant makes any
bulk sale, then in any such case this lease shall, at the option of
the Landlord, cease and determine and the Term shall immediately
become forfeited and void in accordance with the provisions of
Section 15, RIGHT OF TERMINATION, herein.
13.00 BANKRUPTCY
Provided further that, in case without the written consent of the
Landlord, the Leased Premises shall be used by any other person
than the Tenant or for any other purposes than that for which the
same were let or in case the Term or any of the goods and chattels
of the Tenant shall be at any time seized in execution or
attachment by any creditor of the Tenant or by the Tenant making
any assignment for the benefit of creditors or any bulk sale or
become bankrupt or insolvent or take the benefit of any act now or
hereafter in force for bankrupt or insolvent debtors, or, if the
Tenant is a corporation and any order shall be made for the winding
up of the Tenant, or other termination of the corporate existence
of the Tenant, then in any such case this Lease shall, at the
option of the Landlord, cease and determine and the Term shall
immediately become forfeited and void and the then current month's
rent and the next ensuing three (3) months rent and in addition,
all cash allowances, tenant inducement payments and the value of
any other benefit paid to or conferred on the Tenant by or on
behalf of the Landlord in connection with this Lease shall
immediately become due and be paid and the Landlord may re-enter
and take possession of the Leased Premises as though the Tenant or
other occupant or occupants of the Leased Premises was or were
holding over after the expiration of the Term without any right
whatever.
14.00 RE-ENTRY BY LANDLORD
The Tenant further covenants and agrees that on the Landlord's
becoming entitled to re-enter upon the Leased Premises under any of
the provisions of this Lease, the Landlord, in addition to all
other rights, shall have the right to enter the Leased Premises as
the agent of the Tenant either by force or otherwise, without being
liable for any prosecution therefor and to relet the Leased
Premises as the agent of the Tenant, and to receive the rent
therefor and as the agent of the Tenant, to take possession of any
furniture or other property on the Leased Premises and to sell the
same at public or private sale without notice and to apply the
proceeds of such sale and any rent derived from reletting the
Leased Premises upon account of the rent under this Lease, and the
Tenant shall be liable to the Landlord for the deficiency, if any.
15.00 RIGHT OF TERMINATION
The Tenant further covenants and agrees that on the Landlord
becoming entitled to re-enter upon the Leased Premises under any of
the provisions of this Lease, the Landlord, in addition to all
other rights, shall have the right to determine forthwith this
Lease and the Term by leaving upon the Leased Premises notice in
writing of its intention so to do, and thereupon, rent shall be
computed, apportioned and paid in full to the date of such
determination of this Lease and any other payments for which the
Tenant is liable under this Lease shall be paid and the Tenant
shall immediately deliver up possession of the Leased Premises to
the Landlord, and the Landlord may re-enter and take possession of
the same without limiting the generality of the foregoing, in
addition to any other rights the Landlord may have against the
Tenant, in the event the Tenant wishes to terminate this Lease
early, the Tenant shall be liable for the unamortized balance of
the cost of the Leasehold Improvements, amortized over the Term of
the Lease on a straight line basis.
16.00 DISTRESS
The Tenant waives and renounces the benefit of any present or
future statute taking away or limiting the Landlord's right of
distress, and covenants and agrees that notwithstanding any such
statute, none of the goods and chattels of the Tenant on the Leased
Premises at any time during the Term shall be exempt from levy by
distress for rent in arrears. In the event that the Tenant shall
remove or permit the removal of any of its goods or chattels from
the Leased Premises, the Landlord may within thirty (30) days
thereafter and if the Tenant is in arrears of rent, seize such
goods and chattels wherever the same may be found and may sell or
otherwise dispose of the same as if they had actually been
distrained upon the Leased Premises by the Landlord for arrears of
rent.
17.00 NON-WAIVER
No 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 operate as a waiver of the Landlord's rights
hereunder in respect of any continuing or subsequent default,
breach or non-observance, or so as to defeat or affect in any way
the rights of the Landlord herein in respect of any such continuing
or subsequent default or breach, and no waiver shall be inferred
from or implied by anything done or omitted by the Landlord save
only express waiver in writing. All rights and remedies of the
Landlord in this Lease contained shall be cumulative and not
alternative.
18.00 CHANGES TO BUILDING
The Landlord hereby reserves the right at any time and from time to
time to make changes in, additions to, subtractions from or
rearrangements of the Building including, without limitation, all
improvements at any time thereon, all entrances and exits thereto,
and to grant, modify and terminate easements or other agreements
pertaining to the use and maintenance of all or parts of the
Building and to make changes or additions to the pipes, conduits,
utilities and other necessary building services in the Leased
Premises which serve other premises, provided that prior to the
commencement of the Term, the Landlord may alter or relocate the
Leased Premises to the extent found necessary by the Landlord to
accommodate changes in construction design or facilities including
major alterations and relocations. The Landlord agrees that in
performing such alterations, it shall do so in a manner so as to
minimize any material interference with the Tenant's use and
enjoyment of the Leased Premises. The Landlord shall also have the
right during the Term at its reasonable expense to relocate the
Leased Premises to an alternate location within the Kanata Research
Business Park in a building owned by the Landlord.
19.00 SEVERANCE OF LAND
The Landlord shall have the right from time to time to sever (for
purposes of sale, lease, mortgage, charge or otherwise) any part or
parts of the Land or any buildings or improvements thereon,
including the creation of rights-of-way, easements and parking
arrangements which the Landlord deems necessary and the Tenant
hereby consents to any such severance and agrees to execute, at no
cost to the Landlord, any documents or consents which the Landlord
may request for these purposes. If any part or parts of the Land or
the buildings or improvements on the lands are so severed and are
deemed by the Landlord to no longer form part of the property, such
part or parts shall be excluded from the Lands and the property for
the purposes of this Lease at the time designated by the Landlord
and the Tenant shall when requested by the Landlord, execute, at no
cost to the Landlord, a release of any interest in the Lands so
excluded.
20.00 COSTS OF COLLECTION
The Tenant shall pay, as Additional Rent, all costs, expenses and
legal fees (on a solicitor and his client basis) that may be
incurred or paid by or on behalf of the Landlord in enforcing the
covenants and provisions of this Lease.
21.00 PROFITS AND REMEDIES BY LANDLORD
In addition to all rights and remedies available to the Landlord
under the provisions of this Lease or by statute or the general law
in the event of any default by the Tenant of the provisions of this
Lease:
21.01 PAYMENTS TO THIRD PARTIES
The Landlord shall have the right at all times to remedy or attempt
to remedy any default of the Tenant, and in so doing, may make any
payments due or alleged to be due by the Tenant to third parties
and may enter upon the Leased Premises to do any work or other
things therein, and in any such event, all costs and expenses of
the Landlord in remedying or attempting to remedy such default
shall be payable by the Tenant to the Landlord forthwith upon
demand as Additional Rent.
21.02 NON-PAYMENT OF ADDITIONAL RENT
The Landlord shall have the same rights and remedies in the event
of any non-payment by the Tenant of any amounts payable by the
Tenant under any provision of this Lease and the parking agreement
as in the case of non-payment of rent and may be recovered by the
Landlord as rent by any and all remedies available to the Landlord
for the recovery of rent in arrears.
21.03 INTEREST ON ARREARS
The Landlord shall, if the Tenant shall fail to pay any Monthly
Rent, Additional Rent or other amounts from time to time payable by
it to the Landlord hereunder promptly when due, be entitled to
interest on all such Annual Rent, Additional Rent and other amounts
which are unpaid and overdue under this Lease and the parking
agreement, such interest to be compounded monthly thereon and to be
computed at a rate equal to six percent (6%) per annum in excess of
the minimum lending rate to prime commercial borrowers from time to
time charged by the Royal Bank of Canada or such other chartered
bank as the Landlord may designate, from the date upon which such
Monthly Rent, Additional Rent and other amounts was due until
actual payment thereof.
22.00 NOTICE
Any notice required or contemplated by any provisions of this Lease
shall be given in writing, enclosed in a sealed envelope addressed,
in the case of notice to the Landlord c/o Kanata Research Park
Corporation, Suite 206, 555 Legget Drive, Kanata, Ontario, Canada,
K2K 2X3 and in the case of notice to the Tenant, to it at the
Leased Premises and mailed by registered mail, postage prepaid or
telefaxed. The time of giving of such notice shall be conclusively
deemed to be, if mailed the third (3rd) business day after the day
of such mailing, if telefaxed, the next business day following the
date sent as evidenced by the sender's transmittal record. Such
notice shall also be sufficiently given if and when the same shall
be delivered, in the case of notice to the Landlord, to an
executive officer of the Landlord, and in the case of notice to the
Tenant, to him personally or to an executive officer, manager or a
person who appears to be in charge, of the Tenant if the Tenant is
a corporation. Such notice, if delivered, shall be conclusively
deemed to have been given and received at the time of such
delivery. If, in this Lease, two or more persons are named as
Tenant, such notice shall also be sufficiently given if and when
the same shall be delivered personally to any one of such persons.
Provided that either party may, by notice to the other, from time
to time, designate another address in Canada to which notices
mailed more than ten (10) days thereafter shall be addressed. The
word "notice" in this paragraph shall include any request, demand,
direction, or statement in this Lease provided or permitted to be
given by the Landlord to the Tenant or by the Tenant to the
Landlord.
23.00 SUBORDINATION, POSTPONEMENT, ATTORNMENT
The Tenant shall promptly upon the written request of the Landlord,
enter into an agreement:
(a) subordinating the Term and the rights of the Tenant
hereunder to any mortgage, charge, ground lease, trust
deed or debenture present or future and all renewals,
modifications, replacements or extensions thereof, which
may affect the Leased Premises, the Property, the Lands or
the Building;
(b) agreeing that the Term hereof shall be subsequent in
priority to any such mortgage, charge, ground lease, trust
deed or debenture;
provided that the Tenant's obligations under this paragraph shall
be conditional upon any such mortgagee or secured party entering
into a non-disturbance agreement with the Tenant under which the
Tenant's continued possession of the Leased Premises is ensured
notwithstanding any act taken by the mortgagee or secured party.
23.01 TENANT'S RIGHT TO POSSESSION
Notwithstanding any postponement or subordination referred to
herein, the Tenant acknowledges that its obligations under this
Lease shall remain in full force and effect notwithstanding any
action at any time taken by a mortgagee, chargee or ground lessor
to enforce the security of any mortgage charge, ground lease, trust
deed or debenture; provided, however, that any postponement or
subordination given hereunder shall reserve to the Tenant the right
to continue in possession of the Leased Premises under the terms of
this Lease so long as the Tenant shall not be in default hereunder.
23.02 ATTORNMENT BY TENANT
The Tenant, whenever requested by any mortgagee (including any
trustee under a deed of trust and mortgage), chargee or ground
lessor, shall attorn to such mortgagee, chargee or ground lessor as
a tenant upon all the terms of this Lease.
24.00 CERTIFICATE
The Tenant agrees that he will at any time and from time to time
upon not less than five (5) days' prior notice execute and deliver
to the Landlord or any mortgagee of the Lands (including a deed of
trust and mortgage) a statement in writing certifying that this
Lease is unmodified and in full force and effect (or, if modified,
stating the modifications and that the same is in full force and
effect as modified), the amount of the Annual Rental then being
paid hereunder, the dates to which the same, by instalments or
otherwise, and other charges hereunder have been paid, and whether
or not there is any existing default on the part of the Landlord of
which the Tenant has notice.
25.00 REGISTRATION
The Tenant covenants and agrees with the Landlord that the Tenant
will not register this Lease in this form in any Registry Office or
the Land Titles Office. If the Tenant desires to make a
registration for the purposes only of giving notice of this Lease,
then the parties hereto shall contemporaneously with the execution
of this Lease execute a short form thereof solely for the purpose
of supporting an application for registration of notice thereof.
26.00 PLANNING ACT
Where applicable, this Lease shall be subject to the condition that
it is effective only if The Planning Act, 1983, as amended is
complied with. Pending such compliance the Term and any renewal
thereof shall be deemed to be for a total period of one (1) year
less than the maximum lease Term permitted by law without such
compliance.
27.00 TRANSFER BY LANDLORD
In the event of a sale, transfer or lease by the Landlord of the
Building, the Lands or a portion thereof containing the Leased
Premises or the assignment by the Landlord of this Lease or any
interest of the Landlord hereunder, the Landlord shall, without
further written agreement, to the extent that such purchaser,
transferee or lessee has become bound by the covenants and
obligations of the Landlord hereunder, be freed, released and
relieved of all liability or obligations under this Lease incurred
or arising after the date of such sale, transfer or lease.
28.00 NO ADVERTISING OF LEASED PREMISES
The Tenant shall not print, publish, post, display or broadcast any
notice or advertisement to the effect that the whole or any part of
the Leased Premises are for rent, and it shall not permit any
broker or other person to do so without the consent in writing of
the Landlord.
29.00 TIME OF ESSENCE
Time shall be of the essence of this Lease.
30.00 LAWS OF ONTARIO
This Lease shall be deemed to have been made in and shall be
construed in accordance with the Laws of the Province of Ontario.
31.00 SEVERABILITY OF COVENANTS
The Landlord and the Tenant agree that 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 or
provisions of this Lease be illegal or not enforceable it or they
shall be considered separate and severable from the Lease and its
remaining provisions shall remain in force and be binding upon the
parties hereto as though the said provision or provisions had never
been included.
32.00 HEADINGS
The captions appearing in the margin or the headings contained in
this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or
meaning of this Lease or of any provision hereof.
33.00 SCHEDULES
The following Schedules attached hereto form part of this Lease:
Schedules: A, B, C, D, E, F, and G
34.00 LEASE ENTIRE AGREEMENT
The Tenant acknowledges that there are no covenants,
representations, warranties, agreements or conditions expressed or
implied, collateral or otherwise forming part of or in any way
affecting or relating to this Lease save as expressly set out in
this Lease and that this Lease constitutes the entire agreement
between the Landlord and the Tenant and may not be modified except
as herein explicitly provided or except by subsequent agreement in
writing of equal formality hereto executed by the Landlord and the
Tenant.
35.00 INTERPRETATION
IN THIS INDENTURE:
(a) "herein", "hereof", "hereby", "hereunder", "hereto",
"hereinafter", and similar expressions refer to this
indenture and not to any particular paragraph, section or
other portion thereof, unless there is something in the
subject matter or context inconsistent therewith.
(b) "business day(s)" means any of the days from Monday to
Friday of each week inclusive unless such day is a
statutory holiday or public holiday.
(c) "normal business hours" means the hours from 8:00 a.m. to
6:00 p.m. on business days.
36.00 SUCCESSORS
This indenture and everything herein contained shall enure to the
benefit of and be binding upon the respective heirs, executors,
administrators, permitted successors and assigns, of the Tenant and
other legal representatives as the case may be, of each and every
of the parties hereto, and every reference herein to any party
hereto shall include the heirs, executors, administrators,
permitted successors, assigns and other legal representatives of
such party, and where there is more than one tenant or there is a
female party or a corporation, the provisions hereof shall be read
with all grammatical and gender changes thereby rendered necessary
and all covenants shall be deemed joint and several.
37.00 JOINT AND SEVERAL COVENANT
If more than one person executes this Lease as Tenant, each such
person shall be bound jointly and severally with the other(s),
waiving the benefit of division and discussion, for the fulfilment
of all of the obligations of Tenant hereunder.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their
corporate seals duly attested to by the hands of their proper signing officers
authorized in that behalf.
SIGNED, SEALED AND DELIVERED )
in the presence of: ) KANATA RESEARCH PARK
) CORPORATION
)
)
)
) Per:_________________________________________
) Name:
) Title: c/s
) I have the authority to bind the corporation.
)
) PMC-SIERRA LTD.
)
)
)
) Per:_________________________________________
- ---------------------------
Witness ) Name:
) Title: c/s
)
)
) Per:_________________________________________
- ---------------------------
Witness ) Name:
) Title:
)
) I/We have the authority to bind the
corporation.
SCHEDULE "A"
LEGAL DESCRIPTION
411 Legget Drive - Legal Description to be provided once severance has
been completed.
SCHEDULE "B
FLOOR PLAN
SCHEDULE "C"
RULES AND REGULATIONS
The Tenant and its invitees and employees shall observe the following rules and
regulations (as added to, amended or modified from time to time by the
Landlord).
1. The sidewalks, entrances, elevators, stairways, passageways,
shipping areas and corridors of the Building shall not be
obstructed or used for any other purpose by the Tenant than for
ingress and egress to and from the Leased Premises; the Tenant
shall not place or allow to be placed in such areas or facilities
any waste paper, garbage, refuse or anything that shall tend to
make them appear unclean or untidy.
2. The Tenant and its employees shall use washrooms only for the
purpose for which they were designed and nothing shall be placed in
toilets that might cause them to block.
3. Between peak periods, the elevators will be used for transporting
passengers only and during these periods no large parcels or items
of equipment will be permitted on the elevators. Peak periods are
between 8 a.m. and 10 a.m. in the morning, between 12 noon and 2
p.m. in the afternoon and between 4 p.m. and 6 p.m. in the evening.
4. The Tenant shall make arrangements with the Landlord ahead of time
when elevators are to be used for carrying freight or furniture,
etc.. Elevators must not be used for this purpose until the
Landlord has given its consent and the elevator cabs have been
properly protected.
5. The Landlord's janitors shall be permitted prompt access to the
Leased Premises for the purpose of cleaning the office areas
thereof.
6. The Tenant shall not make any noise which might disturb other
tenants and no animals or bicycles or other vehicles shall be
brought into the Leased Premises or the Building.
7. The Leased Premises shall not be used as overnight sleeping
accommodation, for public sales nor for entertaining purposes.
8. The Tenant shall make arrangements with the Landlord ahead of time
if any public meeting is to be held in the Leased Premises and the
meeting shall not be held until the Landlord's written consent is
obtained.
9. The Tenant shall make arrangements with the Landlord ahead of time
to install any business machines, electric appliances, etc. and
these installations will not be made until the Landlord's consent
is obtained.
10. Windows will not be left open so as to admit rain or snow.
11. The Tenant will not alter any existing locks nor will any
additional locks or similar devices be attached to any door or
window.
12. Keys or other devices which are made available to the Tenant for
the purpose of providing access to the exterior doors of the
Building shall not be duplicated and shall be returned to the
Landlord immediately upon termination of the Lease.
13. All adjustments to mechanical equipment such as thermostats,
radiators, diffusers, etc. shall be made by the Landlord's staff
and no one else.
14. If the Tenant wishes to install any drapes or blinds in any of the
windows on the exterior of the Building or on any window of the
Leased Premises facing the interior of the Building, the Landlord's
prior written consent must be obtained and further the drapes or
blinds installed must conform to a uniform colour which the
Landlord may at its absolute discretion establish.
15. The Tenant shall not place anything next to or have displayed in
the windows of the Leased Premises facing into the common areas so
as to visible therein, without the prior written consent of the
Landlord.
16. No admittance by the Tenant or its agents is permitted on the roof
or equipment rooms of the Building.
17. It shall be the responsibility of the Tenant to prevent any person
from throwing objects out of windows, off of any balcony or into
the ducts or stairwells of the Building, and the Tenant shall pay
for any cost, damage or injury resulting from any such acts.
18. The Tenant shall provide adequate receptacles for garbage, refuse
and waste paper and all such garbage, refuse and waste paper shall
be placed in such containers. The Leased Premises shall be kept in
a tidy, healthy and clean condition.
19. The Tenant shall not bring upon the Leased Premises any safes,
heavy equipment, motors or any other thing which might overload
floors or damage the Leased Premises or the Building.
20. The Landlord may require that all persons entering and leaving the
Building at any time other than normal business hours
satisfactorily identify themselves and register in books kept for
the purpose, and may prevent any person from entering the Leased
Premises unless provided with a key thereto and a pass or other
authorization from the Tenant in a form satisfactory to the
Landlord, and may prevent any person removing any goods therefrom
without written authorization.
21. The Tenant shall not use or keep inflammable materials in the
Leased Premises or on any balcony of the Building.
22. The Landlord shall not be responsible for any theft, loss or damage
to vehicles parked therein whatsoever, or for any injury to the
Tenant or others in or on the parking facilities whether or not
parking charges are imposed.
23. The Landlord shall have the right to establish rules and
regulations governing the use of the parking facilities from time
to time and the Tenant hereby agrees to observe and abide by all
such rules and regulations.
24. All moving of the Tenant's chattels and trade fixtures and other
fixtures from or to the Leased Premises shall be performed after
business hours and shall be supervised by the Landlord, its agents
or a security guard all at the Tenant's expense.
25. Smoking is prohibited in all common areas of the Building and on
all balconies of the Building.
26. The Tenant shall not place and/or operate a barbecue on any balcony
of the Building. The Tenant shall not hang anything on or from any
balcony of the Building, nor shall the Tenant use the balcony for
storage, nor shall the Tenant install or erect any antenna, aerial,
satellite dish or other telecommunication device on any balcony of
the Building, nor shall the Tenant place or allow to be placed
waste paper or other garbage on the balcony of the Building. Summer
furniture only may be placed on a balcony of the Building and only
with the prior approval of the Landlord.
The foregoing rules and regulations, as from time to time amended, are not
necessarily of uniform application, but subject to 7.02 may be waived in whole
or in part in respect of other tenants without affecting their enforceability
with respect to the Tenant or the Leased Premises. There is no obligation on the
Landlord to enforce the rules and regulations, and the Landlord shall not be
liable by reason of their non-enforcement.
SCHEDULE "D"
PARKING
1. During the Term, and any extensions of the Term, the Landlord
agrees to allow the Tenant to park, without charge, Three point
Thirty Eight (3.38) vehicles per One Thousand (1,000) rentable
square feet of Leased Premises, in the parking facilities located
on the Lands ("parking facilities").
2. The Landlord shall not be responsible for any theft, loss or damage
to the Tenant's vehicles whatsoever, or for injury to the Tenant or
others in the parking facilities.
3. The Landlord shall have the right to establish rules and
regulations governing the use of the parking facilities from time
to time and the Tenant hereby agrees to observe and abide by all
such rules and regulations.
SCHEDULE "E"
OPTION TO RENEW
1. Provided the Tenant is in good standing, during the Term has not
been in substantial default under this Lease and has not assigned
this Lease or sublet all or a portion of the Leased Premises, the
Tenant shall have and is hereby granted an option to renew this
Lease for a further term of Five (5) years, at an Annual Rent to be
agreed upon, which shall be at the then current rates for buildings
of the Landlord of a similar class and with golf course frontage,
but which shall in no event be less than the Annual Rent paid
during the last year of the Term, provided that in order to
exercise this option, the Tenant shall be required to give to the
Landlord notice of the exercise of such option in writing not less
than six (6) months prior to the date of expiry of the initial
Term.
2. Any renewal pursuant to this proviso shall be on the same terms and
conditions contained in this Lease except:
(a) there shall be no additional right of renewal and no
Leasehold Improvements;
(b) the Annual Rent payable by the Tenant for such renewal
period shall be as agreed upon by the Landlord and Tenant;
such agreement to be reached not later than three (3)
months prior to the expiry of the original Term. Failing
such agreement, this option shall be null and void and of
no further force and effect.
SCHEDULE "F"
LEASEHOLD IMPROVEMENTS
The Landlord shall, at its sole cost and expense, construct on behalf of the
Tenant and install on a turnkey basis to building standards up to a maximum
value equal to Eighteen Dollars ($18.00) per rentable square foot of Leased
Premises with the Tenant paying the overrun, if any, those leasehold
improvements agreed upon by both Landlord and Tenant. The turnkey cost shall
include the Landlord's administrative costs which relate to the work. The Tenant
shall be required to provide to the Landlord a complete set of approved
construction drawings and specifications for the Leased Premises by July 4,
2000, failing which rent shall still commence on the Commencement Date of the
Term. The Additional Leased Premises shall, at the sole cost of the Tenant (to
be deducted from the Leasehold Improvement Allowance), be painted and carpeted
to the Tenant's specifications prior to the Commencement Date. Any additional
leasehold improvements the Tenant may wish to make to the Additional Leased
Premises shall be made by the Landlord after November 1, 2001. The Landlord
shall be liable for any damage to the carpet prior to November 1, 2000 save and
except reasonable wear and tear but the condition of the carpet as at November
1, 2000 shall not affect the obligation of Tenant to pay rent for the Additional
Leased Premises commencing November 1, 2001.
SCHEDULE "G"
ADDITIONAL TERMS
1. RELEASE AGREEMENT
Upon the Commencement Date the Landlord hereby agrees that the Tenant, its
successors and assigns shall be released and forever discharged of and from all
manner of actions, causes of action, suits, debts, duties, accounts, covenants,
contracts, claims and demands whatsoever which the Landlord now has or can,
shall or may hereafter have against the Tenant, its successors and assigns,
arising out of or under or by virtue of the Lease as it relates to 555 Legget
Drive save and except for any current leasehold improvement costs to which the
Tenant has been invoiced and any year end Additional Rent adjustments with
respect to that period of time up to and including the Commencement Date for
which the Tenant shall remain liable.
So long as the Tenant vacates the 1st floor of 555 Legget Drive by the earlier
of the date of substantial completion of the First Leased Premises of the
Commencement Date, the Landlord hereby agrees that the Tenant, its successors
and assigns shall as of April 1, 2001 or the date of occupancy by a new tenant
whichever is earlier, be released and forever discharged of and from all manner
of actions, causes of action, suits, debts, duties, accounts, covenants,
contracts, claims and demands whatsoever which the Landlord now has or can,
shall or may hereafter have against the Tenant, its successors and assigns,
arising out of or under or by virtue of the Lease as it relates to the 1st floor
of 555 Legget Drive save and except for any current leasehold improvement costs
to which the Tenant has been invoiced and any year end Additional Rent
adjustments with respect to that period of time up to and including March 30,
2001 for which the Tenant shall remain liable. The Tenant shall continue to be
liable to pay Annual Rent and Additional Rent with respect to the 1st floor
premises to March 31, 2001 until released.
2. BUILDING SIGNAGE
Provided the Tenant itself leases and continually occupies Leased Premises
comprising no less than Sixty Five Thousand Two Hundred Thirty One point Seventy
One (65,231.71) rentable square feet of space in year 1 of the Term and Eighty
Six Thousand Nine Hundred Seventy Five point Sixty One (86,975.61) rentable
square feet in years 2-5 of the Term, the Landlord hereby grants to the Tenant
the exclusive right, during the first five years of the Term, subject to all
municipal approvals and the Landlord's approval as to size, style and location,
to install at the Tenant's sole expense, a corporate identification sign on the
exterior roof parapet of the Building. So long as the Tenant leases additional
space in the Building within 5 years of the Commencement Date, in the result
that it occupies in excess of 86,975.61 rentable square feet, the exclusive
right shall be extended for a second five years of the Term. If the Tenant does
not lease additional space and occupy Leased Premises comprising in excess of
86,975.61 rentable square feet by the end of the first five years of the Term,
the exclusive right shall be rendered null and void at the option of the
Landlord.
During the Term of the Lease, the Tenant shall, subject to the above noted
provision and Landlord's satisfaction, maintain the sign at its expense and
shall remove the sign at its expense at the conclusion of the Term and repair
any damage to the Building as a result of such installation and removal. This
signage right is not transferable, is personal to the Tenant and shall
immediately become null and void and the sign removed upon the Tenant itself
leasing and/or occupying less than Forty Five Thousand (45,000) rentable square
feet of space.
3. RIGHT OF FIRST REFUSAL
Provided the Tenant continuously and promptly pays the Annual and Additional
Rent hereunder and fulfils its other obligations under the Lease, the Landlord
hereby agrees, that if at any time or times during the Term, the Landlord is in
receipt of a bona fide offer to lease from a third party ("Offer") for all or
part of any vacant space on the ground floor and/or for all or part of any
vacant space on the 1st and 6th floor located in the Building ("Expansion
Premises"), provided the Tenant is not then in default under the Lease, prior to
accepting such Offer, the Landlord shall then offer to lease the Expansion
Premises to the Tenant by delivering notice, in writing, setting out the terms
and conditions of the Offer and the Tenant shall have the right within three (3)
days of its receipt of such notice, to deliver to the Landlord written notice of
its election to lease the Expansion Premises upon the same terms and conditions
contained in the Offer. The notice given by the Tenant to the Landlord, shall
constitute a binding offer to lease and the Landlord and Tenant shall proceed
diligently to enter into a lease, which lease shall reflect the terms and
conditions of the Offer and which lease shall otherwise be the same form as the
Lease. If the Tenant does not so elect, the Landlord shall be free to, but not
obligated to, lease the Expansion Premises to the third party and this right
with respect to the Expansion Premises shall continue to remain in full force
and effect for the remainder of the ground floor, if applicable.
4. PYLON SIGNAGE
The Landlord acknowledges that an exterior pylon sign will be erected on the
lands for the purpose of corporate identification by the tenants subject to the
Landlord's approval.
DATED the 9th day of May, 2000.
BETWEEN:
KANATA RESEARCH PARK CORPORATION
OF THE FIRST PART
AND:
PMC-SIERRA LTD.
OF THE SECOND PART
L E A S E
KANATA RESEARCH PARK CORPORATION
and
PMC-SIERRA LTD.
1.00 LEASED PREMISES...........................................................1
1.01 ADDITIONAL DEFINITIONS....................................................1
2.00 TERM......................................................................2
2.01 INABILITY TO GIVE OCCUPANCY...............................................2
2.02 EARLY OCCUPANCY...........................................................2
2.03 OVERHOLDING...............................................................2
3.00 RENT - Basic Rent.........................................................3
3.01 MONTHLY RENTAL............................................................3
3.02 ADDITIONAL RENT...........................................................3
3.03 ESTIMATED ADDITIONAL RENTALS..............................................3
3.04 DEFICIENCY OF ADDITIONAL RENT.............................................4
3.05 EXCESS OF ADDITIONAL RENTAL INSTALLMENTS..................................4
3.06 PRO-RATING OF ADDITIONAL RENT.............................................4
3.07 PREPAYMENT OF ADDITIONAL RENT.............................................4
3.08 DISPUTE AS TO AMOUNT OF ADDITIONAL RENT...................................4
3.09 POST-DATED CHEQUES........................................................4
3.10 ADVANCE RENTAL............................................................5
3.11 MANNER AND PLACE OF PAYMENT OF RENT.......................................5
3.12 DEFAULT...................................................................5
3.13 ACCRUAL OF RENT...........................................................5
3.14 NET LEASE.................................................................5
4.00 TENANT'S BUSINESS TAX;....................................................5
4.01 LANDLORD'S BUSINESS TAX;..................................................6
4.02 TAX ON TENANT'S LEASEHOLD IMPROVEMENTS;...................................6
4.03 PROPERTY TAX..............................................................6
4.04 ALLOCATION OF TAX.........................................................7
4.05 SEPARATE SCHOOL TAXES.....................................................7
4.06 TAX APPEAL................................................................7
4.07 CAPITAL TAX...............................................................7
5.00 OPERATING COSTS...........................................................7
5.01 ALLOCATION OF OPERATING COSTS.............................................8
5.02 FULL OCCUPANCY............................................................8
5.03 USE OF ELECTRICITY........................................................8
5.04 METERS....................................................................9
6.00 ASSIGNING OR SUBLETTING...................................................9
6.01 REQUEST TO ASSIGN OR SUBLET...............................................9
6.02 LANDLORD'S RIGHT TO CANCEL;...............................................9
6.03 ASSIGNMENT AGREEMENT.....................................................10
6.04 CONSENT NOT TO RELEASE TENANT............................................10
6.05 CHANGE IN CORPORATE CONTROL..............................................10
6.06 NOTICE OF CHANGE OF CONTROL..............................................10
6.07 COST OF CONSENT..........................................................10
7.00 TENANT'S COVENANTS;......................................................10
7.01 TENANT REPAIRS...........................................................11
7.02 RULES AND REGULATIONS....................................................11
7.03 USE OF PREMISES..........................................................11
7.04 INCREASE IN INSURANCE PREMIUMS...........................................11
7.05 CANCELLATION OF INSURANCE................................................12
7.06 OBSERVANCE OF LAW........................................................12
7.07 WASTE AND OVERLOADING OF FLOORS..........................................12
7.08 INSPECTION...............................................................12
7.09 INDEMNITY TO LANDLORD....................................................13
7.10 DAMAGE BY TENANT.........................................................13
7.11 TENANT INSURANCE.........................................................13
7.12 NO ABATEMENT OF RENT.....................................................14
7.13 EXHIBITING PREMISES......................................................14
7.14 SIGNS....................................................................15
7.15 NAME OF BUILDING.........................................................15
7.16 KEEP TIDY................................................................15
7.17 DELIVERIES...............................................................15
7.18 NOTICE OF DAMAGE.........................................................15
7.19 ALTERATIONS, ETC.........................................................15
7.20 CONSTRUCTION LIENS.......................................................16
7.21 SECURITY.................................................................16
7.22 HAZARDOUS SUBSTANCES.....................................................16
7.23 NUISANCE................................................................17
8.00 LANDLORD'S COVENANTS;....................................................17
8.01 QUIET ENJOYMENT..........................................................17
8.02 TAXES, ETC...............................................................17
8.03 HEATING AND AIR-CONDITIONING.............................................18
8.04 REPAIR OF STRUCTURE......................................................18
8.05 JANITORIAL SERVICES......................................................18
8.06 DELAYS IN PROVISION OF SERVICES..........................................18
9.00 TENANT'S FIXTURES;.......................................................19
9.01 REMOVAL OF TENANT'S FIXTURES;............................................19
10.00 DAMAGE OR DESTRUCTION OF LEASED PREMISES................................19
10.01 PARTIAL DAMAGE..........................................................19
10.02 TOTAL DAMAGE............................................................19
10.03 OBLIGATION TO REPAIR....................................................20
10.04 ABATEMENT OF RENT.......................................................20
10.05 DAMAGE TO 50% OF BUILDING...............................................20
10.06 COMPLETION OF REPAIR....................................................20
11.00 LIABILITY FOR DAMAGE TO PROPERTY........................................20
12.00 DEFAULT OF TENANT.......................................................21
13.00 BANKRUPTCY..............................................................21
14.00 RE-ENTRY BY LANDLORD....................................................22
15.00 RIGHT OF TERMINATION....................................................22
16.00 DISTRESS................................................................22
17.00 NON-WAIVER..............................................................22
18.00 CHANGES TO BUILDING.....................................................23
19.00 SEVERANCE OF LAND.......................................................23
20.00 COSTS OF COLLECTION.....................................................23
21.00 PROFITS AND REMEDIES BY LANDLORD........................................23
21.01 PAYMENTS TO THIRD PARTIES...............................................23
21.02 NON-PAYMENT OF ADDITIONAL RENT..........................................23
21.03 INTEREST ON ARREARS.....................................................24
22.00 NOTICE..................................................................24
23.00 SUBORDINATION, POSTPONEMENT, ATTORNMENT.................................24
23.01 TENANT'S RIGHT TO POSSESSION;...........................................25
23.02 ATTORNMENT BY TENANT....................................................25
24.00 CERTIFICATE.............................................................25
25.00 REGISTRATION............................................................25
26.00 PLANNING ACT............................................................25
27.00 TRANSFER BY LANDLORD....................................................25
28.00 NO ADVERTISING OF LEASED PREMISES.......................................26
29.00 TIME OF ESSENCE.........................................................26
30.00 LAWS OF ONTARIO.........................................................26
31.00 SEVERABILITY OF COVENANTS...............................................26
32.00 HEADINGS................................................................26
33.00 SCHEDULES...............................................................26
34.00 LEASE ENTIRE AGREEMENT..................................................26
35.00 INTERPRETATION..........................................................26
36.00 SUCCESSORS..............................................................27
37.00 JOINT AND SEVERAL COVENANT..............................................27
SCHEDULE "A...................................................................28
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SCHEDULE "B...................................................................29
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SCHEDULE "C"..................................................................30
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SCHEDULE "D"..................................................................33
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SCHEDULE "E"..................................................................34
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SCHEDULE "G"..................................................................35
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SCHEDULE "H"..................................................................36
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