EXHIBIT 10.1
CONSENT TO ASSIGNMENT OF LEASE
------------------------------
THIS AGREEMENT made as of the 1st day of February, 2002
BETWEEN:
ARCHITEL SYSTEMS CORPORATION,
----------------------------
(the "Tenant")
OF THE FIRST PART;
- - and -
METASOLV SOFTWARE CANADA INC.,
-----------------------------
(the "Assignee")
OF THE SECOND PART;
- - and -
FIRST REAL PROPERTIES LIMITED,
-----------------------------
(the "Landlord")
OF THE THIRD PART.
WHEREAS:
(A) By a lease dated as of the 24th day of August, 1994 made between the
Landlord and the Tenant, the Landlord leased to the Tenant and the Tenant leased
from the Landlord certain premises located at 190 Attwell Drive, Toronto,
Ontario;
(B) Such lease, as amended by lease amending agreements dated as of January
10, 1995, August 14, 1995, January 23, 1996, September, 11, 1997 and May 27,
1998, is hereinafter referred to as the "Lease";
(C) Pursuant to the Lease, the Tenant leased from the Landlord certain
premises (the "Premises") containing an area of approximately 46,103 square
feet for a term ending on January 31, 2005 (the "Term");
2
(D) By a lease amendment dated as of the 12th day of June, 2001 (the "Sixth
Lease Amendment"), the Landlord leased to the Tenant and the Tenant leased from
the Landlord for a term commencing on July 1, 2001 and ending on January 31,
2005, certain premises (the "Additional Premises") containing an area of
approximately 14,025 square feet designated as Suite 200 in the building
municipally known as 170 Attwell Drive, Toronto, Ontario, all as more
particularly described in the Sixth Lease Amendment;
(E) The Sixth Lease Amendment incorporates by reference, mutatis mutandis, all
of the terms of the Lease and, considered as an independent lease relating
solely to 170 Attwell Drive severable from the Lease (which relates solely to
190 Attwell Drive), is hereinafter referred to as the "Additional Lease";
(F) The Tenant has agreed to assign the Lease and all interest in the Lease
to the Assignee as of the date hereof, subject to the prior written consent of
the Landlord in accordance with the terms of the Lease.
NOW THEREFORE in consideration of the sum of Two ($2.00) Dollars and other
good and valuable consideration paid by each of the parties to each of the
others, the receipt and sufficiency of which is hereby respectively
acknowledged by the parties hereto, the parties agree as follows:
1. Landlord's Consent
------------------
Subject to the terms of this Agreement, the Landlord hereby consents to
the assignment (the "Assignment") by the Tenant to the Assignee of the Lease
and the Tenant's interest therein, it being understood that the Landlord in
granting this consent does not thereby acknowledge or approve of or agree to
be bound by any of the terms of the Assignment as between the Tenant and the
Assignee, but is only consenting to the occurrence of the Assignment. For
greater certainty, the parties agree that the Assignment does not include an
assignment of the Additional Lease, which shall remain as a lease between the
Landlord and the Tenant, unamended by this Agreement.
2. Landlord's Rights Continue
--------------------------
This consent by the Landlord is without prejudice to the Landlord's rights
under the Lease and at law and shall not be deemed to authorize any further or
other assignment of the Lease or subletting or parting with or sharing
possession of all or any part of the Premises.
3. Assignment
----------
The Tenant and Assignee represent, warrant, covenant and agree with the
Landlord that none of the terms of the Assignment shall conflict with any of
the provisions of the Lease or of
4
as between the Tenant and the Assignee, or of releasing either the
Tenant or the Assignee from any of its obligations under the Lease,
for which it shall remain jointly and severally liable to the same
extent as if such amendments had not been made; and
(iii) the Tenant's liability hereunder and under the Lease shall not be
released, discharged, mitigated, impaired or affected by any loss
of or in respect of any security received or intended to be
received by the Landlord from the Assignee or from any other person,
firm or corporation, whether or not occasioned or contributed to by
or through the act, omission, default or neglect of the Landlord.
6. Costs
-----
The Tenant agrees to pay upon demand all reasonable costs, legal or
otherwise, properly incurred by the Landlord with respect to this consent to
the Assignment and the preparation of this Agreement. The Assignee agrees
that, if the Tenant fails to pay such costs, the Assignee agrees to be jointly
and severally responsible for and to promptly pay upon demand all such costs.
7. Default of Assignee/Termination of Lease
-----------------------------------------
(a) The Tenant agrees that, if the Assignee defaults in the performance
of any of its obligations under the Assignment, the Lease or this Agreement,
the Tenant shall without delay exercise such rights as are available to it
under the Assignment or at law or otherwise to either remedy such default or
obtain a reassignment of the Lease. If the Tenant obtains a reassignment of the
Lease, it shall thereupon re-enter and take possession of the Premises and
shall perform all its obligations under the Lease with respect to the Premises
for the balance of the Term. The Tenant agrees to promptly notify the Landlord
of any default of the Assignee under the Assignment and to keep the Landlord
advised of all intended action to remedy such default or to obtain a
reassignment of the Lease.
(b) The Tenant agrees that, if the Assignee defaults in the performance
of any of its obligations to the Landlord pursuant to the Lease or this
Agreement, the Landlord shall have the right to exercise in respect of the
Premises, all rights available to it under the Lease and at law including
without limitation the right to terminate the Lease, provided that the Landlord
has first given to the Tenant such written notice, if any, as required under
the Lease requiring the Tenant to remedy such default to the extent of the
Tenant's obligations under the Lease and the Tenant has failed to do so. In the
event the Lease is terminated by the Landlord in respect of the Premises in the
aforesaid circumstances, such termination shall, as against the Tenant be
without prejudice to all the rights of the Landlord under the Lease and at law,
included in which shall be the right to obtain from the Tenant all arrears of
rent and other charges owing under the Lease in respect of the Premises up to
the date of termination and damages in respect of losses and deficiencies
sustained by the Landlord over what would have been the unexpired term but for
such termination, all in accordance with the Lease.
6
Nortel Networks Limited
8200 Dixie Road, Suite 100
Brampton, ON L6T 5P6
Attn: Law Department - Real Estate
Fax: (905) 863 8335
To the Assignee:
MetaSolv Software Canada Inc
4446 Boul. St.-Laurent, Suite 300
Montreal, Quebec
Canada H2W 1Z5
514-844-4545
9. Acknowledgment of Assignee
--------------------------
The Assignee acknowledges that it has received a copy of the Lease and is
familiar with the terms, covenants and conditions contained therein.
10. Confirmation of Lease and Additional Lease
------------------------------------------
The parties hereto acknowledge and confirm that the Lease is in full force
and effect unmodified and unamended, except in accordance with this Agreement.
The Landlord and the Tenant acknowledge and confirm that the Additional Lease
is in full force and effect unmodified and unamended, except in accordance with
this Agreement.
11. Delivery
--------
This Agreement shall be deemed not to have been executed and delivered by
the Landlord until it has been duly executed by all the other parties hereto
and the Landlord has received at least one original executed copy hereof and at
least one original executed copy of the Assignment document and a certified
list of Directors, Officers and Shareholders of the Assignee. Until all of the
said documents have been received by the Landlord, the Landlord may, at its
sole option, by written notice to the Tenant, withdraw its consent herein
contained, in which case this Agreement shall be null and void and of no
further effect. If both of the said documents have not been received by the
Landlord within thirty (30) days from the date hereof, the Landlord's consent
to the Assignment shall be null and void unless given again in writing by the
Landlord.
8
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
ARCHITEL SYSTEMS CORPORATION
By: /s/ Kate Stevenson By: /s/ Debble Noble
------------------------------ ----------------------------------------
Kate Stevenson Name: Debble Noble
President Title: Secretary
We have authority to bind the Corporation
METASOLV SOFTWARE CANADA INC,
By: /s/ [ILLEGIBLE]^^
----------------------------------------
Name:
Title:
I have authority to bind the Corporation
FIRST REAL PROPERTIES LIMITED
By: /s/ James G. Milligan
----------------------------------------
James G. Milligan - Secretary
I have authority to bind the Corporation.
FIFTH LEASE AMENDMENT
---------------------
THIS FIFTH LEASE AMENDMENT dated as of the 27th day of May, 1998,
B E T W E E N:
FIRST REAL PROPERTIES LIMITED,
------------------------------
(hereinafter called the "Landlord")
- - and -
ARCHITEL SYSTEMS CORPORATION,
-----------------------------
(hereinafter called the "Tenant")
WHEREAS by a lease made the 24th day of August, 1994 between Sun Life
Assurance Company of Canada ("Sun Life") as Landlord, and the Tenant, Sun Life
leased to the Tenant and the Tenant leased from Sun Life those premises in the
building municipally known as 190 Attwell Drive, Etobicoke, Ontario (the
"Building") located on the 2nd floor of the Building containing a Gross Area (as
defined in the Lease) of four thousand eight hundred and seventy-three (4,873)
square feet for a term commencing on the 1st day of February, 1995 and to be
fully completed and ended on the 31st day of January, 2005 on the terms and
conditions more particularly set out therein;
AND WHEREAS by a lease amending agreement made as of the 10th day of
January, 1995 (the "First Lease Amendment"), Sun Life leased to the Tenant and
the Tenant leased from Sun Life premises in the Building located on the 2nd
floor of the Building containing a Gross Area of four thousand five hundred and
seventy-four (4,574) square feet for a term commencing on the 1st day of
February, 1995 and to be completed and ended on the 31st day of January, 2005,
on the terms and conditions more particularly set out therein;
AND WHEREAS by a lease amending agreement made as of the 14th day of
August, 1995 (the "Second Lease Amendment"), Sun Life leased to the Tenant and
the Tenant leased from Sun Life premises in the Building located on the 2nd
floor of the Building containing a Gross Area of four thousand and sixty-seven
(4,067) square feet for a term commencing on the 1st day of October, 1995 and
to be completed and ended on the 31st day of January, 2005, on the terms and
conditions more particularly set out therein;
AND WHEREAS by a lease amending agreement made as of the 23rd day of
January, 1996 (the "Third Lease Amendment"), Sun Life leased to the Tenant and
the Tenant leased from Sun Life premises in the Building located on the 3rd
floor of the Building containing a Gross Area of thirteen thousand five hundred
and fourteen (13,514) square feet for terms commencing on January 1, 1996 and
July 1, 1996 and to be fully completed and ended on the 31st day of January,
2005, on the terms and conditions more particularly set out therein;
AND WHEREAS Sun Life transferred and assigned the Building and the
said lease to the Landlord;
AND WHEREAS by a lease amending agreement made as of the 11th day of
September, 1997 (the "Fourth Lease Amendment"), the Landlord leased to the
Tenant and the Tenant leased from the Landlord premises in the Building located
on the 4th floor of the Building containing a Gross Area of five thousand two
hundred (5,200) square feet and on the Ground Floor of the Building
INITIAL
/s/ Tenant /s/ Landlord
2
containing a Gross Area of five thousand and seventy-nine (5,079) square feet
for a term commencing on the 1st day of October, 1997 and to be completed and
ended on the 31st day of January, 2005, on the terms and conditions more
particularly set out therein;
AND WHEREAS the said lease, the First Lease Amendment, the Second
Lease Amendment, the Third Lease Amendment and the Fourth Lease Amendment are
hereinafter collectively referred to as the "Lease";
AND WHEREAS pursuant to the Lease, the Tenant presently leases from
the Landlord premises in the Building comprising an aggregate Gross Area of
thirty-seven thousand three hundred and seven (37,307) square feet;
AHD WHEREAS the Landlord has agreed to lease to the Tenant and the
Tenant has agreed to lease from the Landlord additional premises on the 4th
floor of the Building containing a Gross Area of eight thousand seven hundred
and ninety-six (8,796) square feet (the "Additional Premises") generally shown
on Schedule "A" attached and designated by the Landlord as Suite 400, for a
term commencing on the 1st day of August, 1998 and to be fully completed and
ended on the, 31st day of January, 2005 (the "Additional Premises Term") on
the terms and conditions more particularly set out herein.
NOW THEREFORE IN CONSIDERATION OF the premises, other good and
valuable consideration, and the sum of Ten Dollars ($10.00) paid by each of the
parties hereto to the other (the receipt and sufficiency whereof is hereby
acknowledged) it is agreed by and between the parties hereto as follows:
(1) ADDITIONAL PREMISES
-------------------
The Landlord leases to the Tenant and the Tenant leases from the
Landlord the Additional Premises for and during the Additional Premises Term.
(2) ANNUAL BASIC RENT
-----------------
During the Additional Premises Term, the Tenant shall Pay
to the Landlord as rental for the Additional Premises the following
amounts:
(a) For the period commencing on the 1st day of August, 1998 and ending on
the 31st day of January 2000, an annual basic rent of Seventy
Thousand Three Hundred and Sixty-Eight Dollars ($70,368.00) payable
in advance in equal consecutive monthly installments of Five Thousand
Eight Hundred and Sixty-Four Dollars ($5,864.00) each on the first
day of each and every calendar month during Such period; (The
foregoing basic rent is based on an annual rental rate of Eight
Dollars ($8.00) for each square foot of Gross Area of the Additional
Premises.)
(b) For the period commencing on the 1st day of February, 2000 and ending
on the 31st day of January 2005, an annual basic rent of Ninety-Six
Thousand Seven Hundred and Fifty-Six Dollars ($96,756.00) payable in
advance in equal consecutive monthly instalments of Eight Thousand
and Sixty-Three Dollars ($8,063.00) each on the first day of each and
every calendar month during such period. (The foregoing basic rent is
based on an annual rental rate of Eleven Dollars ($11.00) for each
square foot of Gross Area of the Additional Premises.)
INITIAL
/s/ Tenant /s/ Landlord
[PAGE TO COME]
4
(6) PARKING
-------
The provisions of the Lease referring to parking are deleted in their
entirety and replaced with the following:
"The Landlord shall provide to the Tenant during the
Additional Premises Term with up to one hundred and fifteen
(115) free surface parking spaces on an unallocated first
come, first serve basis. In the event that the Tenant
requires additional parking spaces, they will be made
available, if available, at the Landlord's then prevailing
monthly parking rental rate (presently Thirty-Seven 85/l00
Dollars ($37.85) including PST and GST). All parking spaces
and their use shall be subject to and in accordance with
the then applicable general rules and regulations of the
Landlord relating to parking."
The effect of the foregoing is that on the commencement of the
Additional Premises Term, the Landlord will provide an additional twenty-two
(22) free surface parking spaces in addition to those previously agreed to be
provided pursuant to the Lease.
(7) OCCUPANCY
---------
The Tenant shall be allowed free access to and vacant possession of
the Additional Premises from the date of execution and delivery hereof until
the commencement of the Additional Premises Term for the purposes of installing
its leasehold improvements according to plane approved by the Landlord in
accordance with the Lease.
(8) RIGHT OF FIRST OPPORTUNITY
--------------------------
The Tenant shall have the right of first opportunity to lease
premises located on the first (1st), fifth (5th) and sixth (6th) floors of the
Building (the "First Opportunity Premises") on the terms and conditions and
subject to the limitation more particularly set out in paragraph (6) of the
Fourth Lease Amendment provided that the Tenant is then not in default under
the terms of the Lease and this Fifth Lease Amendment.
In the event that the Tenant shall agree with the Landlord to lease
any of the First Opportunity Premises for a term commencing before the 1st day
of August, 1999 and ending on the expiry of the Additional Premises Term, then
the basic rent for such premises shall be based on an annual rental rate of
Eight 50/100 Dollars ($8.50) until the 31st day of January, 2000 and on an
annual rental rate of Twelve Dollars ($l2.O0) from the 1st day of February,
2000 until the 31st day of January, 2005.
Any premises leased pursuant to this right of first opportunity shall
be leased on an "as is, as viewed" basis and the Landlord shall not provide any
tenant's allowance, fixturing period or tenant's inducement and shall not be
required to complete any Landlord's work for or to such premises whatsoever,
and any provisions of the Lease, herein or in any earlier lease amendment,
which relate to any of the foregoing being provided by the Landlord, waived by
the Landlord, not made by the Landlord or of a similar nature shall not be
effective in any manner whatsoever in respect of such premises.
Notwithstanding anything contained herein or in the Lease to the
contrary, the right of early termination referred to in paragraph (5) hereof
and in paragraph (10) or the Fourth Lease Amendment shall not be applicable to
any of the First Opportunity Premises.
INITIAL
/s/ Tenant /s/ Landlord
5
(9) TOTAL PREMISES
--------------
The Tenant agrees that as of the commencement of the Additional
Premises Term, it shall be leasing from the Landlord premises in the Building
containing an aggregate Gross Area of forty-six thousand one hundred and three
(46,103) square feet and that thereafter the term "premises" in the Lease or
herein shall mean all of such premises.
(10) LEASE TERMS
-----------
The Tenant covenants and agrees that except as amended herein, all of
the terms of the Lease remain in full force and effect, unchanged and
unmodified, and that a11 of the covenants, conditions, terms, provisions and
agreements contained therein shall be applicable to the Additional Premises
during the Additional Premises Term, save and except as amended or added to
herein.
(11) FURTHER ASSURANCES
------------------
The Tenant covenants and agrees to do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all and every
further assurances as may be necessary, appropriate or prudent in the opinion
of the Landlord.
(13) CONTINUANCE
-----------
This Fifth Lease Amendment shall enure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns.
IN WITNESS WHEREOF the Parties hereto have executed this Fifth Lease
Amendment as of the day and year first above written.
FIRST REAL PROPERTIES LIMITED
By /s/ J. Gordon Parker
------------------------------
J. Gordon Parker - Executive
Vice-President
I have authority to bind the Corporation.
ARCHITEL SYSTEMS CORPORATION
By /s/ E.S.XXXX
------------------------------
Name: E.S.XXXX
Title: VP FINANCE & GENERAL COUNSEL
I have authority to bind the Corporation.
THIS FOURTH AMENDMENT TO LEASE dated as of the 17th day of September,
1997,
B E T W E E N:
FIRST REAL PROPERTIES LIMITED,
------------------------------
(hereinafter called the "Landlord")
- - and -
ARCHITEL SYSTEMS CORPORATION,
-----------------------------
(hereinafter called the "Tenant")
WHEREAS by a lease made the 24th day of August, 1994 (the "Lease")
between Sun Life Assurance Company of Canada ("Sun Life") as Landlord, and the
Tenant, Sun Life leased to the Tenant and the Tenant leased from the Landlord
those premises in the building municipally known as 190 Attwell Drive,
Etobicoke, Ontario (the "Building") 1ocated on the 2nd floor of the Building
containing a Gross Area (as defined in the Lease) of four thousand eight
hundred and seventy-three (4,873) square feet for a term commencing on the 1st
day of February, 1995 and to be fully completed and ended on the 31st
day of January, 2005 on the terms and conditions more particularly set out
therein;
AND WHEREAS by a lease amending agreement made as of the 10th day of
January, 1995 (the "First Lease Amendment"), Sun Life leased to the Tenant and
the Tenant leased from Sun Life premises in the Building located on the 2nd
floor of the Building containing a Gross Area of four thousand five hundred and
seventy-four (4,574) square feet for a term commencing on the 1st day of
February, 1995 and to be completed and ended on the 31st day of January, 2005,
on the terms and conditions more particularly set out therein;
AND WHEREAS by a lease amending agreement made as of the 14th day of
August, 1995 (the "Second Lease Amendment"), Sun Life leased to the Tenant and
the Tenant leased from Sun Life premises in the Building located on the 2nd
floor of the Building containing a Gross Area of four thousand and sixty-seven
(4,067) square feet for a term commencing on the 1st day of October, 1995 and
to be completed and ended on the 31st day of January, 2005, on the terms and
conditions more particularly set out therein;
AND WHEREAS by lease amending agreement made as of the 23rd day of
January, 1996 (the "Third Lease Amendment"), Sun Life leased to the Tenant and
the Tenant and the Tenant leased from Sun Life premises in the Building located
on the 3rd floor of the Building containing a Gross Area of thirteen thousand
five hundred and fourteen (13,514) square feet for terms commencing on January
1, 1996 and July 1, 1996 and to be fully completed and ended on the 31st day of
January, 2005, on the terms and conditions more particularly set out therein;
AND WHEREAS the Lease, the First Lease Amendment, the Second Lease
Amendment and the Third Lease Amendment are hereinafter collectively referred
to as the "Lease");
AND WHEREAS Sun Life transferred and assigned the Building and the
Lease to the Landlord;
AND WHEREAS the Landlord has agreed to lease to the Tenant and the
Tenant has agreed to lease from the Landlord additional premises on the 4th
floor of the Building containing a Gross Area of five thousand one hundred and
seventy-eight (5,178) square feet and on the Ground floor of the Building
containing a
INITIAL
/s/ Tenant /s/ Landlord
Gross Area of five thousand and seventy nine (5,079) square feet (col. [not
clear], the "Additional Premises"), Generally shown in cross-XXXX on
Schedule "A" and Schedule "B" attached and designated by the Landlord as Suites
401, 403, 404 and 101, for a term commencing on the 1st day of October, 1997 and
to be fully completed and ended on the 31st day of January, 2005 (the
"Additional Premises Term") on the terms and conditions more particularly set
out herein. The Tenant now leases from the Landlord thirty-seven thousand two
hundred and eighty-five (37,285) square feet as of October 1, 1997.
NOW THEREFORE IN CONSIDERATION OF the premises, other good and
valuable consideration and the sum of Ten Dollars ($10.00) paid by each of the
parties hereto the other (the receipt and sufficiency whereof is hereby
acknowledged) it is agreed by and between the parties hereto as follows:
(1) ADDITIONAL PREMISES
-------------------
The Landlord leases to the Tenant and the Tenant leases from the
Landlord the Additional Premises for and during the Additional Premises Term.
(2) ANNUAL BASIC RENT
-----------------
During the period from October 1, 1997 to January 31, 2000, the Tenant
shall pay to the Landlord annual basic rent of Eighty-Two and Fifty-six
Dollars ($82,056.00) payable in advance in equal consecutive monthly
installments of Six Thousand Eight Hundred and Thirty-Eight Dollars ($6,838.00)
each on the 1st day of each and every calendar month during the foresaid period.
(The foregoing basic rent is based on an annual rental rate of Eight Dollars
($8.00) for each square foot of Gross Area of the Additional Premises.)
During the period from February 1, 2000 to January 31, 2005, the
Tenant shall pay to the Landlord, annual basic rent of One Hundred and Twelve
Thousand Eight Hundred and Twenty-Seven Dollars ($112,827.00) payable in
advance in equal consecutive monthly instalments of Nine Thousand Four Hundred
and Two 25/100 Dollars ($9,402.25) each on the 1st day of each and every
calendar month during the aforesaid period. (The foregoing basic rent is
based on an annual rental rate of Eleven Dollars ($11.00) for each square foot
of Gross Area of the Additional Premises.)
The said annual basic rent shall be adjusted in the event that the
Gross Area of the Additional Premises shall differ from the Gross Area stated
above, in the event of a dispute, the determination of the Gross Area by the
Landlord's space consultant or Architect shall be conclusive and binding on the
parties hereto.
(3) ADDITIONAL RENT
---------------
In addition to annual basic rent, the Tenant shall pay to the
Landlord during each year of the Additional Term, all additional rent which is
to be paid in accordance with the Lease as is applicable to the Additional
Premises, including Common Cost Escalation, Taxes and other costs, charges,
reimbursements and assessments referred to in the Lease and all other costs as
are generally charged to tenants generally leasing space in the Building.
The Tenant and the Landlord agree that rent payable herein shall be net in all
respects and carefree to the Landlord.
(4) LEASEHOLD IMPROVEMENTS
----------------------
The premises are accepted on an "as is, as presently viewed basis"
and except as herein provided the Landlord shall not be required to complete
any leasehold improvements, replacements,
INITIAL
/s/ Tenant /s/ Landlord
XXXX or provide any tenant's benefits in respect of the Additional
Premises whatsoever.
The Tenant shall be permitted to abandon all leasehold improvements,
installations, alterations, partitions and fixtures installed by the Tenant
with the consent of the Landlord without being obligated to remove the same at
the expiry of the Additional Term or the expiry of any renewal thereof, save
except for any signage on the exterior of the Building which the Tenant shall
remove and repair the exterior of the Building accordingly.
(5) TENANT'S ALLOWANCE
------------------
The Landlord shall provide the Tenant with a tenant's improvement
allowance, calculated at the rate of Five Dollars ($5.00) for each square foot
of the Gross Area of the Additional Premises payable after the Tenant's
occupancy and the commencement of the Additional Term and after the Tenant has
provided evidence satisfactory to the Landlord that all accounts related to the
Tenant's improvements to the Additional Premises have been paid and that no
construction lien has or may be claimed with respect thereto and that all
releant any lien periods have expired. The Tenant agrees that any such payment
to the Tenant shall only be made based on evidence provided to the Landlord of
actual costs incurred by the Tenant in completing Tenant's improvements to the
Additional Premises only.
(6) RIGHT OF FIRST OPPORTUNITY
--------------------------
As long as the Tenant is Architel Systems Corporation and itself is
in occupation of and conducting its business in the whole of the premises
leased pursuant to the Lease and this Fourth Amendment to Lease in accordance
with the terms thereof, the Tenant expressly acknowledging and agreeing that
this first opportunity to lease is personal to it, and as long as the Tenant
has not been in default under the Lease or hereunder, then, during the
Additional Premises Term, if the Landlord wishes to lease from time to time,
any premises located on the first (1st) or the fourth (4th) floor of the
Building (the "Opportunity Premises"), the Tenant shall have a first
opportunity to lease the Opportunity Premises in an "as is" then condition.
Such first opportunity to lease shall be exercisable as follows:
When the Landlord anticipates that it can lease the
Opportunity Premises, or any part thereof, to a third party, the
Landlord will give notice to the Tenant of the Gross Area of and
location of the Opportunity Premises or part thereof it anticipates
leasing, the date it will be available for occupancy, the basic
rent, the term for which it is available and otherwise the terms
and conditions on which the Landlord will lease the same to the
Tenant. The Tenant will have five (5) business days following its
receipt of the Landlord's notice to agree to lease the Opportunity
Premises described in the Landlord's notice from the Landlord on
the terms and conditions set out in the Landlord's notice. If
within such five (5) business day period, the Tenant does not enter
into an agreement to lease as aforesaid, the Landlord will be free
at any time thereafter to lease all or any part of the Opportunity
Premises referred to in the said notice to a third party or parties
for a term no longer than the term set out in the Landlord's notice
and at a basic rent no lower than set out in the Landlord's notice,
but otherwise on such terms as the Landlord deems
INITIAL
/s/ Tenant /s/ Landlord
XXXX the Landlord anticipates that it can lease the
Opportunity Premises in respect of XXXX notice was
given at a lower basic rent then specified in the said notice,
the Opportunity Premises described in the said notice will again
be subject to the foregoing first opportunity,
The aforesaid first opportunity to lease shall not be applicable in
respect of any of the Opportunity Premises which is presently leased with
renewal rights to an existing tenant of the Landlord unless such existing
tenant shall not renew its lease or which is subject to any rights that the
Landlord shall have granted to any other tenant prior to the date hereof.
(7) PARKING
-------
The provisions of the Lease referring to parking are deleted in their
entirety and replaced with the following:
"The Landlord shall provide to the Tenant during the Term of
the Lease and the Extended Term hereof with up to ninety-three (93)
free surface parking space on an unallocated first come, first
serve basis. In the event that the Tenant requires additional
parking spaces, they will be made available, if available, at the
Landlord's then prevailing monthly parking rental rate (presently
Thirty-Seven 85/100 Dollars ($37.85) including PST and GST). All
parking spaces and their use shall be subject to and in accordance
with the then applicable general rules and regulations of the
Landlord relating to parking."
(8) EARLY OCCUPANCY
---------------
The Tenant shall be allowed access to and vacant possession of
portions of the Additional Premises described in Schedule "A" and Schedule "B"
in order to install its leasehold improvements as follows:
(a) Unit 401 - no later than October 31, 1997.
(b) Unit 403 - no later than October 31, 1997.
(c) Units 404 and 101 - upon execution and delivery of this Fourth
Amendment to Lease by the Landlord and the Tenant.
The Tenant acknowledges that the Additional Premises Term commences
October 1, 1997 notwithstanding the dates of access and vacant
possession above noted.
(9) FREE RENT
---------
The Tenant shall not be obligated to pay basic rent or additional
rent in respect of the Additional Premises designated on Schedule "A" as Units
No. 401 and 403 and on Schedule "B" as to Unit 101 only, from October 1, 1997
until December 31, 1997.
(10) EARLY TERMINATION
-----------------
All references in the Lease to the Tenant's right of early
termination (Section 17.07) are deleted in their entirety and replaced with the
following:
INITIAL
/s/ Tenant /s/ Landlord
XXXX the Tenant is not in XXXX to the XXXX and this Fourth Amendment
to XXXX, the Tenant shall have the right to terminate the Lease and this
Lease Amendment on the January 31, 2000, provided twelve (12) months
prior written notice has been given to the Landlord. The month prior to
the termination date, the Tenant shall pay to the Landlord Nine Dollars
($9.00) per square foot of the aggregate of all of the premises leased by
the Tenant from the Landlord as a penalty for such early termination. The
Tenant shall also have the right to terminate the Lease and this Fourth
Amendment to Lease on the following dates, under the same terms and
conditions as aforesaid with the following penalties:
January 31, 2001 - $7.55 per square foot
January 31, 2002 - $6.00 per square foot
January 31, 2003 - $4.15 per square foot
January 31, 2004 - $2.25 per square foot"
(11) LEASE TERMS
-----------
The Tenant covenants and agrees that except as amended herein, all of
the terms of the Lease remain in full force and effect, unchanged and
unmodified, and that all of the covenants, conditions, terms, provisos and
agreements contained therein shall be applicable to the Additional Premises
during the Additional Term, save and except as amended or added to herein.
(12) FURTHER ASSURANCES
------------------
The Tenant convenants and agrees to do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all and
every further assurances as may be necessary, appropriate or prudent in the
opinion of the Landlord.
(13) VAULT
-----
The area shown on Schedule "B" marked vault shall be deemed to
comprise one hundred and fifty (150) square feet (the "Vault Area"). The Tenant
shall not be required to pay annual basic rent in respect of the Vault Area
(but will Pay additional rent) and the amount of annual basic rent to be paid
pursuant to paragraph (2) hereof shall be adjusted accordingly.
This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Fourth
Amendment to Lease as of the day and year first above written.
FIRST REAL PROPERTIES LIMITED
By /s/ J. Gordon Parker
------------------------------
J. Gordon Parker - Authorized
Signing Officer
I have authority to bind the Corporation.
ARCHITEL SYSTEMS CORPORATION
By /s/ XXXX
------------------------------
Name: XXXX President
I have authority to bind the Corporation.
INITIAL
/s/ Tenant /s/ Landlord
[FLOOR PLAN GRAPHIC APPEARS HERE]
[FLOOR PLAN GRAPHIC APPEARS HERE]
LEASE AMENDING AGREEMENT 3rd Lease Amending Agreement
- ------------------------
THIS AGREEMENT made as of the 23rd day of January, 1996.
BETWEEN:
SUN LIFE ASSURANCE COMPANY OF CANADA
------------------------------------
hereinafter called the "Landlord"
OF THE FIRST PART
- -AND-
ARCHITEL SYSTEMS CORPORATION
----------------------------
hereinafter called the "Tenant"
OF THE SECOND PART
WHEREAS by a Lease dated the 24th day of August, 1994 (the "1ease")
made between the Landlord, as Landlord, and the Tenant, as tenant, the Landlord
leased to the Tenant 4,873 square feet (the "Leased Premises") in the building
municipally known as 190 Attwell Drive, Etobicoke, Ontario, the Leased Premises
being more particularly described in the Lease, for a term and on the terms and
conditions more particularly set out in the Lease;
AND WHEREAS BY Indenture dated the 10th day of January, 1995 the Lease was
amended to include an additional 4,574 square feet for a total of 9,447 square
feet.
AND WHEREAS BY Indenture dated the 14th day of August, 1995 the Lease was
amended to include an additional 4,067 square feet for a total of 13,514 square
feet.
AND WHEREAS the Landlord and Tenant have agreed to amend the Lease;
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of TEN
($10.00) DOLLARS now paid by each party to the other (the receipt and adequacy
of which is hereby acknowledged) and other good and valuable consideration, the
parties do hereby mutually agree each with the other as follows:
1. The Landlord does hereby lease unto the Tenant the Additional Space
(as hereinafter defined) for a term to be concurrent with the term of the Lease.
2. From and after the 1st day of January 1996 to and including the end
of the term of the Lease plus any renewals thereof, the premises demised under
the Lease shall be deemed to include the area outlined in red (being
approximately 6,851 square feet) on Schedule "I" attached hereto (the
"Additional Space"), and from and after the 1st day of July 1996 to and
including the end of the term of the Lease plus any renewals thereof, the
premises demised under the Lease shall be deemed to include the area outlined
in green (being approximately 6,663 square feet) on Schedule "I" attached XXXX
the "Additional Space") and term "demised premises" as used herein and in the
Lease shall be deemed to include the Additional Space and Schedule "B" attached
to the Lease shall be deemed to be amended to include the Additional Space and
all the terms, covenants, conditions and provisions in the Lease contained,
as amended hereby, except as otherwise provided to the contrary herein, shall
apply equally to the Additional Space as to the Leased Premises. The Tenant now
has a total of 20,365 square feet as of January 1, 1996 and 27,028 square feet
as of July 1, 1996.
3. Section 4 of the 2nd Lease Amending Agreement dated the 14th day of
August 1995 is deleted in its entirety, and the following is inserted:
4. From and after the 1st day of January 1996 to January 31, 1996, the
Tenant shall pay to the Landlord, the annual amount of FORTY FOUR THOUSAND ONE
HUNDRED NINETY TWO 05/l00 ($44,192.05) DOLLARS payable in advance in equal
consecutive monthly installments of THREE THOUSAND SIX HUNDRED EIGHTY TWO 67/100
($3,682.67) DOLLARS each on the first day of each and every calendar month
during the
aforesaid period, from and after the XXXX June XXXX 6, the annual amount of
SEVENTY FOUR THOUSAND SEVEN HUNDRED THIRTY NINE 55/100 ($74,739.55) DOLLARS
payable in advance in equal consecutive monthly installments of SIX THOUSAND TWO
HUNDRED TWENTY EIGHT 29/100($6,228.29) DOLLARS each on the first day of each and
every calendar month during the aforesaid period, from and after the 1st day of
July, 1996 to January 31, 1998, the annual amount of NINETY NINE THOUSAND ONE
HUNDRED NINETY TWO 76/100 ($99,192.76) DOLLARS payable in advance in equal
consecutive monthly installments of EIGHT THOUSAND TWO HUNDRED SIXTY SIX 06/l0O
($8,266.06) DOLLARS each on the first day of each and every calendar month
during the aforesaid period, from and after the 1st day of February, 1998 to
January 31, 2000, the annual amount of ONE HUNDRED TWENTY SIX THOUSAND TWO
HUNDRED TWENTY 76/100 ($126,220.76) DOLLARS payable in advance in equal
consecutive monthly installments of TEN THOUSAND FIVE HUNDRED EIGHTEEN 39/100
($10,518.39) DOLLARS each on the first day of each and every calendar month
during the aforesaid period, from and after the 1st day of February, 2000 to
January 31, 2005, the annual amount of ONE HUNDRED EIGHTY THOUSAND TWO HUNDRED
SEVENTY SIX 76/100 ($180,276.76) DOLLARS payable in advance in equal consecutive
monthly installments of FIFTEEN THOUSAND TWENTY THREE 06/100 ($15,023.06)
DOLLARS each on the first day of each and every calendar month during the
aforesaid period and the Lease shall be deemed to be amended accordingly.
5. Article 3 (Section 3.02) of the Lease is deleted entirely and should
read as follows:
The aforesaid annual basic rent is calculated on the basis of the Gross Area
of the Leased Premises being 20,365 square feet leased at a rate of $2.17 from
January 1, 1996 to January 31, 1996, then $3.67 for the next five months from
February 1, 1996 to June 30, 1996, then on the basis of the Gross Area of the
Leased Premises being XXXX square feet leased at a rate of $3.67 from July 1,
1996 to January 31, 1998, $4.67 for the period February 1, 1998 to January 31,
2000, $6.67 for the period February 1, 2000 to January 31, 2005.
6. Leasehold Improvement Allowance. The Landlord shall provide, at no
--------------------------------
cost to the Tenant, the existing Leasehold Improvements in the Leased Premises
including partitions, doors, carpets, plumbing, lighting, air conditioning,
ceiling tiles in a satisfactory condition and electrical outlets. The Landlord
shall provide the Tenant with a Five Dollar ($5.00) per square foot improvement
allowance payable upon occupancy and signing of the Lease Amending Agreement by
both the Tenant and the Landlord and commencement of the Term.
Notwithstanding anything in the Lease to the contrary, the Tenant shall be
permitted to abandon all leasehold improvements, installations, alterations,
partitions and fixtures installed by the Tenant with the consent of the
Landlord without being obligated to remove same at the expiry or termination of
the Lease or any renewal, save and except the exterior Building signage.
7. Article 17 (Section 17.07) of the Lease is deleted entirely and should
read as follows:
Provided the Tenant is not in default of the Lease, the Tenant shall have the
right to terminate this Lease after completion of the fifth (5th) year of the
term provided twelve (12) months prior written notice has been given to the
Landlord. The month prior to the termination date, the Tenant shall pay to the
Landlord Seven ($7.00) Dollars per square foot as penalty for such early
termination. The Tenant shall also have the right to terminate the lease at the
end of the sixth, seventh, eighth and nine years under the same terms and
conditions as above with the following penalties:
End of year 6 - $6.00 per square foot
End of year 7 - $4.50 per square foot
End of year 8 - $3.00 per square foot
End of year 9 - $1.50 per square foot.
8. Parking. Article 17 (Section 17.06) and Section 8 of the 1st Lease
-------
Amending Agreement are deleted in their entirety and replaced with the
following:
The Landlord shall make available to the Tenant during the term of the
XXXX non-exclusive outdoor shared parking based upon a ratio of 2.5 parking
spaces per 1000 sq.ft. of Rentable Area leased at no cost to the Tenant and
subject to all rules and regulations that govern the parking. In addition to the
foregoing and provided the Tenant is not in default under the Terms of the
Lease, the Landlord shall make available, an additional 33 parking spaces at no
cost to the Tenant on a recallable basis by the Landlord. Said additional
parking spaces shall be subject to availability at the Landlord's sole
discretion and all or part of the 33 additional parking spaces may be recalled
by the Landlord at any time upon 30 days prior written notice.
9. Signage. Provided the Tenant is in occupation of and conducting
--------
business in a minimum of two full floors (27,028 sq.ft.) of the Building and is
not in default of any of the terms and conditions contained in the Lease,
including without limitation, the payment of rent, the Tenant shall be entitled
to non-exclusive Building standard exterior signage, provided that said signage
shall be in a design, size, location and all other respects satisfactory to the
Landlord and said signage shall be subject to all Municipal Governmental and
local authorities prior written approval. It is agreed and understood that the
Tenant shall, at its costs, obtain all necessary approvals and permits for the
installation of said sign and that said sign shall be installed and maintained
by the Tenant at its expense. The Tenant shall remove said sign at its expense,
at the end of the Lease Term and make good any damage that may have been caused
by the sign or its installation or removal.
10. The Tenant covenants and agrees to do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all and every
further assurances as may be necessary, appropriate or prudent.
11. The parties hereto acknowledge, confirm and agree that in all other
respects the terms of the Lease remain in full force and effect, unchanged and
unmodified except in accordance with this Agreement.
12. Except as specifically stated in this Agreement any expression used
in this Agreement has the same meaning as the corresponding expression used in
the Lease.
13. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF the parties have hereunto affixed their corporate
seals attested by the hands of their respective signing officers duly authorized
in that behalf as of the day and year first above written.
SUN LIFE ASSURANCE COMPANY OF CANADA
PER: /s/ S. J. LARSEN
-------------------------------
S. J. LARSEN
Director, Property Management
PER: /s/ F. W. CROCKETT
-------------------------------
F. W. CROCKETT
Director, XXXX
ARCHITEL SYSTEMS CORPORATION
PER: /s/ XXXX
--------------------------------
Tenant - Title
PER:________________________________
Tenant - Title
[FLOOR PLAN GRAPHIC APPEARS HERE]
LEASE XXXX AMENDING AGREEMENT XXXX Lease Amending Agreement
- ----------------------------
THIS AGREEMENT made as of the 14th day of August, 1995.
BETWEEN:
SUN LIFE ASSURANCE COMPANY OF CANADA
------------------------------------
hereinafter called the "Landlord"
OF THE FIRST PART
- -AND-
ARCHITEL SYSTEMS CORPORATION
----------------------------
hereinafter called the "Tenant"
OF THE SECOND PART
WHEREAS by a Lease dated the 24th day of August, 1994 (the "lease")
made between the Landlord, as Landlord, and the Tenant, as tenant, the Landlord
leased to the Tenant 4,873 square feet (the "Leased Premises") in the building
municipally known as 190 Attwell Drive, Etobicoke, Ontario, the Leased
Premises being more particularly described in the Lease, for a term and on the
terms and conditions more particularly set out in the Lease;
AND WHEREAS BY Indenture dated the 10th day of January, 1995 the Lease was
amended to include an additional 4,574 square feet for a total of 9,447
square feet.
AND WHEREAS the Landlord and Tenant have agreed to amend the Lease;
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of
TEN ($10.00) DOLLARS now paid by each party to the other (the receipt and
adequacy of which is hereby acknowledged) and other good and valuable
consideration, the parties do hereby mutually agree each with the other as
follows:
1. The Landlord does hereby lease unto the Tenant the Additional
Space (as hereinafter defined) for a term to be concurrent with the term of the
Lease.
2. From and after the 1st day of October 1995 to and including the end
of the term of the Lease plus any renewals thereof, the premises demised
under the Lease shall be deemed to include the area outlined in red (being
approximately 4,067 square feet) on Schedule "I" attached hereto (the
"Additional Space") which area is contiguous to the Leased Premises and term
"demised premises" as used herein and in the Lease shall be deemed to include
the Additional Space and Schedule "B" attached to the Lease shall be
deemed to be amended to include the Additional Space and all the terms,
covenants, conditions and provisions in the Lease contained, as amended hereby,
except as otherwise provided to the contrary herein, shall apply equally to the
Additional Space as to the Leased Premises. The Tenant now has a total of 13,514
square feet.
3. Article 3 (Section 3.01) of the Lease and Section 3 & 4 of the Lease
Amending Agreement dated January 10, 1995 are deleted in their entirety, and
the following is inserted:
4. From and after the 1st day of October 1995 to January 31, 1996, the
Tenant shall pay to the Landlord, the annual amount of THIRTY THOUSAND NINE
HUNDRED FORTY SEVEN 06/100 ($30,947.06) DOLLARS payable in advance in
equal consecutive monthly installments of TWO THOUSAND FIVE HUNDRED SEVENTY
EIGHT 92/100 ($2,578.92) DOLLARS each on the first day of each and every
calendar month during the aforesaid period, from and after the 1st day of
February, 1996 to January 31, 1998, the annual amount of FIFTY ONE THOUSAND
TWO HUNDRED EIGHTEEN 06/100 ($51,218.06) DOLLARS payable in advance in equal
consecutive monthly installments of FOUR THOUSAND TWO HUNDRED SIXTY EIGHT 17/100
($4,268.17) DOLLARS each on the first day of each and every calendar month
during the aforesaid period, from and after the 1st day of February, 1998 to
January 31, 2000, the annual amount of SIXTY FOUR THOUSAND SEVEN HUNDRED THIRTY
TWO 06/100 ($64,732.06)
-2-
DOLLARS payable in advance in equal consecutive monthly installments of FIVE
THOUSAND THREE HUNDRED NINETY FOUR 33/100 ($5,394.33) DOLLARS each on the
first day of each and every calendar month during the aforesaid period, from
and after the 1st day of February, 2000 to January 31, 2005, the annual amount
of NINETY ONE THOUSAND SEVEN HUNDRED SIXTY 06/lOO ($91,760.06) DOLLARS payable
in advance in equal consecutive monthly installments of SEVEN THOUSAND SIX
HUNDRED FORTY SIX 67/100 ($7,646.67) DOLLARS each on the first day of each
and every calendar month during the aforesaid period, and the Lease shall be
deemed to be amended accordingly.
5. Article 3 (Section 3.02) of the Lease is deleted entirely and should
read as follows;
The aforesaid annual basic rent is calculated on the basis of the Gross
Area of the Leased Premises being 13,514 square feet leased at a rate of $2.29
from October 1, 1995 to January 31, 1996, then $3.79 for the next 2
years commencing February 1, 1996, $4.79 for the next 2 years commencing
February 1, 1998 and $6.79 for the final 5 years commencing February 1, 2000.
6. The Tenant accepts the Premises "as is" and the Tenant acknowledges
that it shall be responsible for the installation of its leasehold improvements
in the Premises which improvements shall be subject to the Landlord's approval
in accordance with the Lease.
The Landlord agrees to pay the Tenant the sum (the "Tenant Improvement
Allowance") calculated by multiplying $5.00 by the area of the Additional Space
(4,067 square feet). The Tenant Improvement Allowance shall become payable to
the Tenant 30 days after all of the conditions (the "Improvement Allowance
Conditions") referred to below have been met. The Tenant acknowledges that any
payment to the Tenant shall be based upon evidence provided to the Landlord of
actual costs incurred by the Tenant in painting and recarpeting the Additional
Premises only. It is agreed and understood that the Tenant Improvement
Allowance shall not exceed TWENTY THOUSAND THREE HUNDRED AND THIRTY FIVE 00/100
($20, 335.00) DOLLARS.
The Improvement Allowance Conditions are as follows:
(a) The Tenant has produced evidence satisfactory to the Landlord that all
accounts relating to the Tenant's work have been paid and that no construction
lien has or may be claimed with respect thereto and that all relevant lien
periods have expired.
7. Article 17 (Section 17.07) of the Lease is deleted entirely and
should read as follows;
Provided the Tenant is not in default of the Lease, the Tenant shall have the
right to terminate this Lease after completion of the fifth (5th) year of the
term provided twelve (12) months prior written notice has been given to the
Landlord. The month prior to the termination date, the Tenant shall pay to the
Landlord Eleven ($11.00) Dollars, per square foot. The Tenant shall also have
the right to terminate the lease at the end of the sixth, seventh, eighth and
nine years under the same terms and conditions as above with the following
penalties:
End of year 6 - $8.80 per square foot
End of year 7 - $6.60 per square foot
End of year 8 - $4.40 per square foot
End of year 9 - $2.20 per square foot.
8. The Tenant covenants and agrees to do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all and every
further assurances as may be necessary, appropriate or prudent.
9. The parties hereto acknowledge, confirm and agree that in all other
respects the terms of the Lease remain in full force and effect, unchanged and
unmodified except in accordance with this Agreement.
10. Except as specifically stated in this Agreement any expression used
in this Agreement has the same meaning as the corresponding expression used in
the Lease.
11. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF the parties have hereunto affixed their corporate
seals attested by the hands of their respective signing officers duly
authorized in that behalf as of the day and year first above written.
SUN LIFE ASSURANCE COMPANY OF CANADA
PER: /s/ [ILLEGIBLE]^^
--------------------------------
PER: /s/ [ILLEGIBLE]^^
--------------------------------
ARCHITEL SYSTEMS CORPORATION
PER: /s/ [ILLEGIBLE]^^
--------------------------------
Tenant - Title
PER:________________________________
Tenant - Title
[FLOOR PLAN GRAPHIC APPEARS HERE]
LEASE AMENDING AGREEMENT
------------------------
THIS AGREEMENT made as of the 10th day of January, 1995.
BETWEEN:
SUN LIFE ASSURANCE COMPANY OF CANADA
------------------------------------
hereinafter called the "Landlord"
OF THE FIRST PART
- -AND-
ARCHITEL SYSTEMS CORPORATION
----------------------------
hereinafter called the "Tenant"
OF THE SECOND PART
WHEREAS by a Lease dated the 24th day of August, 1994 (the "lease")
made between the Landlord, as Landlord, and the Tenant, as tenant, the Landlord
leased to the Tenant 4,873 square feet (the "Leased Premises") in the building
municipally known as 190 Attwell Drive, Etobicoke, Ontario, the Leased Premises
being more particularly described in the Lease, for a term and on the terms and
conditions more particularly set out in the Lease;
AND WHEREAS the Landlord and Tenant have agreed to amend the Lease;
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of
TEN ($10.00) DOLLARS now paid by each party to the other (the receipt and
adequacy of which is hereby acknowledged) and other good and valuable
consideration, the parties do hereby mutually agree each with the other as
follows:
1. The Landlord does hereby lease unto the Tenant the Additional Space
(as hereinafter defined) for a term to be concurrent with the term of the Lease.
2. From and after the 1st day or February, 1995 to, and including the end
of the term of the Lease plus any renewals thereof, the premises demised under
the Lease shall be deemed to include the area outlined in red (being
approximately 4,574 square feet) on Schedule "I" attached hereto (the
"Additional Space") which area is contiguous to the Leased Premises and term
"demised premises" as used herein and in the Lease shall be deemed to include
the Additional Space and Schedule "B" attached to the Lease shall be deemed to
be amended to include the Additional Space and all the terms, covenants,
conditions and provisions in the Lease contained as amended hereby, except as
otherwise provided to the contrary herein, shall apply equally to the
Additional Space as to the Leased Premises.
3. From and after the 1st day of February, 1995 to January 31, 1996, the
Tenant shall pay to the Landlord, in addition to the rent and additional rent
payable under the Lease, as rent under the Lease for the Additional Space, the
annual amount of NINE THOUSAND ONE HUNDRED FORTY EIGHT ($9,148.00) DOLLARS
payable in advance in equal consecutive monthly installments of SEVEN HUNDRED
SIXTY TWO 33/100 ($762.33) DOLLARS each on the first day of each and every
calendar month during the aforesaid period, from and after the 1st day of
February, 1996 to January 31, 1998, the Tenant shall pay to the Landlord, in
addition to the rent and additional rent payable under the Lease, as rent under
the Lease for the Additional Space, the annual amount of SIXTEEN THOUSAND AND
NINE ($16,009.00) DOLLARS payable in advance in equal consecutive monthly
installments of ONE THOUSAND THREE HUNDRED THIRTY FOUR 08/lOO ($l,334.08)
DOLLARS each on the first day of each and every calendar month during the
aforesaid period, from and after the 1st day of February, 1998 to January 31,
2000, the Tenant shall pay to the Landlord, in addition to the rent and
additional rent payable under the Lease, as rent under the Lease for the
Additional Space, the annual amount of TWENTY THOUSAND FIVE HUNDRED EIGHTY
THREE ($20,583.00) DOLLARS payable in advance in equal consecutive monthly
installments of ONE THOUSAND SEVEN HUNDRED FIFTEEN 25/100 ($1,715.25)
DOLLARS each on
-2-
the first day of each and every calendar month during the aforesaid period,
from and after the 1st day of February, 2000 to January 31, 2005, the Tenant
shall pay to the Landlord, in addition to the rent and additional rent payable
under the Lease, as rent under the Lease for the Additional Space, the annual
amount of TWENTY NINE THOUSAND SEVEN HUNDRED THIRTY ONE ($29,731.00) DOLLARS
payable in advance in equal consecutive monthly installments of TWO THOUSAND
FOUR HUNDRED SEVENTY SEVEN 58/100 ($2,477.58) DOLLARS each on the first day of
each and every calendar month during the aforesaid period, and the Lease shall
be deemed to be amended accordingly.
4. Notwithstanding the Lease commencement date of February 1, 1995 the
Tenant shall not be obliged to pay basic rent for the period February 1, 1995
to November 30, 1996. This free rent applies to the additional space (4,574
sq.ft) only. The Tenant shall be responsible for the payment of additional rent
throughout the entire lease term.
5. The Landlord agrees to paint and carpet using a standard 28 oz. carpet
the additional space of 4,574 square feet.
6. The Landlord, at its expense, shall replace and/or clean existing
ceiling tiles in the existing space and the additional space to ensure a clean,
uniform ceiling is provided. The Landlord shall ensure that any furniture and
equipment in place is covered during this procedure.
7. The Landlord shall, at its expense, construct and/or demolish all
walls necessary to demise the new premises.
8. The Landlord shall provide to the Tenant an additional fifteen (15)
unreserved parking stalls free of charge for the term of the Lease.
9. The Tenant covenants and agrees to do, execute, acknowledge and
deliver of cause to be done, executed, acknowledged and delivered all and every
further assurances as may be necessary, appropriate or prudent.
10. The parties hereto acknowledge, confirm and agree that in all other
respects the terms of the Lease remain in full force and effect, unchanged and
unmodified except in accordance with this Agreement.
11. Except as specifically stated in this Agreement any expression used
in this Agreement has the same meaning as the corresponding expression used in
the Lease.
12. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
-3-
IN WITNESS WHEREOF the parties have hereunto affixed their corporate
seals attested by the hands of their respective signing officers duly authorized
in that behalf as of the day and year first above written.
SUN LIFE ASSURANCE COMPANY OF CANADA
PER: /s/ S. J. Larsen
-------------------------------
S. J. Larsen
Property Management Officer
PER: /s/ F. W. Crockett
-------------------------------
F. W. Crockett
Property Management Officer
ARCHITEL SYSTEMS CORPORATION
PER: /s/ [ILLEGIBLE]^^
--------------------------------
Tenant - Title
PER: ________________________________
Tenant - Title
[FLOOR PLAN GRAPHIC APPEARS HERE]
LEASE
BETWEEN
SUN LIFE ASSURANCE COMPANY OF CANADA
LANDLORD
AND
ARCHITEL SYSTEMS CORPORATION
TENANT
TABLE OF CONTENTS
ARTICLE 1 - PREMISES
1.01 Premises..................................... 1
ARTICLE 2 - TERM
2.01 Term......................................... 1
2.02 Possession................................... 1
2.03 Inability to Deliver Possession.............. 1
2.04 Relocation of Leased Premises................ 1
ARTICLE 3 - RENT
3.01 Rent......................................... 1
3.02 Basis of Determining Rent.................... 1
3.03 Apportionment of Annual Basic Rent
and Common Cost Escalation................... 2
ARTICLE 4 - TENANT'S COVENANTS
4.01 Occupancy ................................... 2
4.02 Rent......................................... 2
4.03 Permitted Use................................ 2
4.04 Waste and Nuisance........................... 2
4.05 Floor Loads.................................. 2
4 06 Insurance Risks.............................. 2
4.07 Noxious Fumes/Odours......................... 2
4 08 Condition.................................... 2
4.09 By-Laws...................................... 2
4.10 Rules and Regulations........................ 2
4.11 Surrender, Overholding....................... 3
4.12 Signs and Directory.......................... 3
4.13 Inspection and Access........................ 3
4.14 Exhibiting Premises.......................... 3
4.15 Name of Building............................. 3
4.16 Acceptance of Leased Premises................ 3
ARTICLE 5 - LANDLORD'S COVENANTS
5.01 Quiet Enjoyment ............................. 3
5.02 Interior Climate Control..................... 3
5.03 E1evators.................................... 3
5.04 Entrances, Lobbies, Etc...................... 4
5.05 Washrooms.................................... 4
5.06 Janitor Services............................. 4
ARTICLE 6 - REPAIR AND DAMAGE AND DESTRUCTION
6.01 Landlord's Repairs........................... 4
6.02 Tenant's Repairs............................. 4
6.03 Abatement and Termination.................... 4
ARTICLE 7 - TAXES AND OPERATING COSTS
7.01 Landlord's Tax Obligations................... 5
7.02 Business Taxes and Common Costs Esc.......... 5
7.03 Payment of Common Costs Escalation........... 5
7.04 Postponement Etc., of Taxes.................. 6
7.05 Receipts, Etc................................ 6
ARTICLE 8 - UTILITIES AND ADDITIONAL SERVICES
8.01 Water, Telephone and Electricity............. 6
8.02 Utilities.................................... 6
8.03 Electricity.................................. 6
8.04 Excess Use................................... 6
8.05 Lamps........................................ 7
8.06 Additional Services.......................... 7
ARTICLE 9 - LICENSES, ASSIGNMENTS AND SUBLETTINGS
9.01 Assignments and Sublettings
ARTICLE 10 - FIXTURES AND IMPROVEMENTS
10.01 Installation of Fixtures XXXX
Improvements................................. 8
10.02 Liens and Encumbrances on Fixtures
and Improvements............................. 8
10.03 Tenant's Goods............................... 8
10.04 Removal of Fixtures & Improvements........... 9
ARTICLE 11 - INSURANCE AND LIABILITY
11.01 Tenant's Insurance........................... 9
11.02 Limitation of Landlord's Liability........... 9
11.03 Indemnity of Landlord........................ 10
ARTICLE 12 - SUBORDINATION, ATTORNMENT, REGISTRATION
AND CERTIFICATES
12.01 Subordination and Attornment................. 10
12.02 Registration................................. 10
12.03 Certificates................................. 10
ARTICLE 13 - REMEDIES OF LANDLORD AND TENANT'S
DEFAULT
13.01 Remedying by Landlord, Non-Payment
and Interest................................. 10
13.02 Remedies Cumulative.......................... 11
13.03 Right of Re-entry on Termination............. 11
13.04 Re-entry and Termination..................... 11
13.05 Rights on Re-entry........................... 11
13.06 Payment of Rent, Etc.,
on Termination............................... 11
ARTICLE 14 - EVENTS TERMINATING LEASE
14.01 Cancellation of Insurance.................... 11
14.02 Default...................................... 11
ARTICLE 15 - MISCELLANEOUS
15.01 Notices...................................... 12
l5.02 Entire Agreement............................. 12
15.03 Area Determination........................... 12
15.04 Successors and Assigns
Interpretation............................... 12
15.05 Force Majeure................................ 13
15.06 Waiver....................................... 13
15.07 Governing Law, Covenants,
Severability................................. 13
15.08 Headings, Captions........................... 13
15.09 Expropriation................................ 13
15.10 Arbitration.................................. 13
ARTICLE 16 - DEFINITIONS
16.01 Definitions.................................. 13
ARTICLE 17 - SPECIAL PROVISIONS........................... 16
ARTICLE 18 - ACCEPTANCE................................... 17
SCHEDULE "A" - LEGAL DESCRIPTION OF LAND
SCHEDULE "B" - PLAN OF LEASED PREMISES
SCHEDULE "C" - RULES AND REGULATIONS
1
THIS LEASE made the 24th day of August, 1994,
BETWEEN:
SUN LIFE ASSURANCE COMPANY OF CANADA, a body corporate incorporated under the
laws of Canada (hereinafter called the "Landlord")
OF THE FIRST PART,
- -and-
ARCHITEL SYSTEMS CORPORATION
(hereinafter called the "Tenant") OF THE SECOND PART,
WHEREAS the Landlord is registered as owner, subject to
such encumbrances, [Uncleared Text] and interests as are notified by
memorandum underwritten (or endorsed hereon) of that certain parcel
of land municipally described as 190 Attwell Drive and situated in
the City of Etobicoke, in the Province of Criteria and more
particularly described in Schedule "A" attached hereto (hereinafter
called the "Land") upon which Land is situated an office building and
related improvements (the said office building and all other fixed
improvements now or hereafter on the Land being hereinafter referred
to as the "Building"): and,
WHEREAS the Tenant has agreed to loose space in the Building which
will comprise the area more particularly hereinafter not forth for the term and
at the rental and subject to the terms, covenants, conditions and agreements
hereinafter contained; and,
WHEREAS in this Lease certain expressions have the defined meanings
set out in Article 16 hereof;
WITNESSETH THAT
ARTICLE 1
PREMISES
Premises
1.01 In consideration of the rents, covenants, agreements
and conditions hereinafter reserved and contained on the part of the Tenant to
be respectively paid, kept, observed and performed, the Landlord hereby demises
and leases unto the Tenant these certain premises situate on the 2nd floor(s)
of the Building containing a rentable area of 4,430 square feet as shown
outlined in red on the floor plan hereto annexed as Schedule [Uncleared Text]
(hereinafter referred to as the "Leased Premises") which Leased premises shall
have for purpose hereinafter set out a Gross Area of 4,873 square feet and the
rentable area and gross area of the Leased Premises shall be measured as
provided in Sub-sections 16.01(g),(h) and (j) hereof.
ARTICLE 2
TERM
Term
2.01 TO HAVE AND TO HOLD the Leased Premises for a term of
One Hundred twenty (120) months commencing on the 1st day of February, 1995,
(hereinafter referred to as the "commencement date") and to be fully completed
and ended on the 31st day of January, 2005.
Possession
2.02 It is expressly understood and agreed between the
Landlord and the Tenant that, should all of the Leased Premises not be ready for
occupancy by the Tenant on the commencement date, the Term of this lease shall
nonetheless commence on the commencement date and this Lease shall remain in
full force and effect and subject as hereinafter provided the Tenant shall take
possession of the Leased Premises when all of the said Leased Premises are
ready for occupancy (or in the opinion of the Landlord's Architect would have
been ready for occupancy except for the fault of the Tenant). The Tenant shall
be obligated to pay rent for the Leased Premises as and from the date that all
of the Leased Premises are ready for occupancy. If such date shall occur on a
day other than the first day of a month, the basic rent and electrical charges
for such month shall be payable only for the proportionate part (being the
balance of the month commencing on the date the Leased Premises are ready for
occupancy) and the full monthly installments payable under the within Lease
shall commence and be payable as of and from the first day of the month next
following the date when the Leased Premises are ready for occupancy.
Inability to Deliver Possession
2.03 The Landlord shall not be liable for loss, injury,
damage or inconvenience which the Tenant may sustain by reason of the inability
of the Landlord to deliver the Leased Premises ready for occupancy the
commencement date.
Relocation of Leased Premises
2.04 The Tenant agrees that notwithstanding anything herein
contained, the Landlord shall have the right at any time and from time to time,
to change the location of the Leased Premises as set forth in Article 1
hereof and Schedule [Uncleared Text] attached hereto to comparable premises in
the Building. Notwithstanding the above, the Landlord shall provide
the Tenant with ninety (90) days notice of its intent to relocate the
Tenant. The Landlord shall, at its expense, construct the new
Premises to the same standards as the original premises, and pay to
the Tenant all reasonable expenses associated with the relocation.
ARTICLE 3
RENT
Rent
3.01 YIELDING AND PAYING THEREFOR unto the Landlord, at the
Landlord's office in the City of Toronto (or such other persons at such other
places as the Landlord may from time to time in writing designate), subject to
adjustment as hereinafter provided, in lawful money of Canada, the annual basic
rent for the period February 1, 1995 to January 31, 1996 of NINE THOUSAND SEVEN
HUNDRED FORTY SIX DOLLARS ($9,746.00) payable without deduction by equal
consecutive monthly installments of EIGHT HUNDRED AND TWELVE 17/100 DOLLARS
($812.17), and for the period February 1, 1996 to January 31, 1998 of SEVENTEEN
THOUSAND AND FIFTY FIVE 50/100 DOLLARS ($17,055.50) payable without deduction
by equal consecutive monthly installments of ONE THOUSAND FOUR HUNDRED TWENTY
ONE 29/100 DOLLARS ($1,421.29), and for the period February 1, 1998 to January
31, 2000 of TWENTY ONE THOUSAND NINE HUNDRED TWENTY EIGHT 50/100 DOLLARS
($21,928.50) payable without deduction by equal consecutive monthly
installments of ONE THOUSAND EIGHT HUNDRED TWENTY SEVEN 38/100 DOLLARS
($1,827.38), and for the period February 1, 2000 to January 31, 2005 of THIRTY
ONE THOUSAND SIX HUNDRED SEVENTY FOUR 50/100 DOLLARS ($31,674.50) payable
without deduction by equal consecutive monthly installments of TWO THOUSAND SIX
HUNDRED THIRTY NINE 54/100 DOLLARS ($2,639.54) in advance on the first day of
each and every month during the Term, the first installment to be paid on the
commencement date or on such other date as may be determined pursuant to
Article 2 hereof.
Basis of Determining Rent
3.02 The aforesaid annual basic rent is calculated on the basis of the Gross
Area of the Leased Premises being 4,873 square feet Leased at a rate of $2.00
for the 1st year, $3.50 for years 2 & 3, $4.50 for years 4 & 5 and $6.50 for
years 6 to 10 for each square foot of Gross Area. The said annual basic rent
shall be adjusted in the event that the Gross Area of the Leased Premises shall
differ from the Gross Area stated above. In the event of a dispute the
determination of the Gross Area by the Landlord's Architect shall be conclusive
and binding on the parties hereto.
-2-
Apportionment of Annual Basic Rent and Common Cost Escalation
3.03 Annual basic rent and Common Costs Escalation are considered to
accrue from day to day, and where it becomes necessary to calculate annual
basic rent or Common Costs Escalation for an irregular period of less than
twelve calendar months or an instalment of annual basic rent or Common Costs
Escalation for a for a period of less than one calendar month, an appropriate
apportionment and adjustment will be made on a per XXXX basis.
ARTICLE 4
TENANT'S COVENANTS
The Tenant covenants with the Landlord as follows:
Occupancy
4.01 To occupy the Leased Premises on the date the Leased
Premises are ready for occupancy, subject to the terms hereof.
Rent
4.02 To pay the rent hereby reserved promptly on the days
and at the times and in the manner herein mentioned, without demand or
deduction.
Permitted Use
4.03 To use the Leased Premises only for general office
purposes and such normal and lawful business duties and functions of a general
office that will not unreasonably interfere with normal use of a first-class
high rise office building; and not to use or permit to be used the Leased
Premises or any part thereof for any other purpose or business and, more
particularly, but without limiting the generality of the last mentioned
provision, not to use or permit to be used the Leased Premises or any part
thereof for any business which is that of a bank, treasury branch, credit
union, trust or acceptance or loan company or any other organization engaged in
the business of accepting money on deposit, or any similar banking business
(excluding insurance, stock brokers or investment dealers), nor use nor permit
the use of any part of the Leased Premises for the purpose of installation or
operation of any electronic or mechanical equipment, devices or machines by
which any banking transaction, operation or function may be available to the
public, nor use or permit the use of any part of the Leased Premises for or as
a restaurant, cafeteria, lunch counter, food dispensary, snack bar or other
food services operation.
Waste and Nuisance
4.04 Not to commit or permit any waste or injury to the
Leased Premises including the Leased old improvements and trade fixtures
therein, any overloading of the floors thereof, any nuisance therein or any use
or manner of use causing annoyance to other tenants and occupants of the
building 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 place any
objects on or otherwise howsoever obstruct the heating or air conditioning
vents within the Leased Premises.
Floor Loads
4.05 That the Tenant shall not place a load upon any
portion of any floor of the Leased Premises which exceeds the floor load which
the area of such floor being loaded was designed to carry having regard to the
loading of adjacent areas and that which is allowed by law. The Landlord
reserves the right to prescribe the weight and position of all safes and heavy
installations which the Tenant wishes to place in the Leased Premises, so as to
distribute properly the weight thereof and the Tenant shall pay for all costs
incurred by the Landlord and the Landlord's Architect in making such assessment.
Insurance Risks
4.06 Not to do, omit to do or permit to be done or omitted
to be done upon the Leased Premises anything which would cause the Landlord's
coat of insurance (whether fire or liability) to be increased (end, without
waiving the foregoing prohibition the Landlord may demand, and the Tenant shall
pay to the Landlord upon demand, the amount of any such increase of cost caused
by anything so done or omitted or permitted to be done or omitted) or which
would cause any policy of insurance to be subject to cancellation or refusal of
placement or renewal.
Noxious Fumes/Odours
4.07 The Tenant shall so use the Leased Premises that
noxious or objectionable fumes, vapors and odours will not occur beyond the
extent to which they are discharged or eliminated by means of the flues and
other devices provided in the building by the Landlord and shall prevent any
such noxious or objectionable fumes, vapors and odours from entering into the
air conditioning or being discharged into other vents or flues of the Building
or annoying any of the tenants in the Building. Any discharge of fumes, vapors
and odours shall be permitted only during such period or periods, to such
extent, in such conditions and in such manner as is directed by the Landlord
from time to time.
Condition
4.08 Not to permit the Leased Premises to become untidy,
unsightly, offensive or hazardous or permit unreasonable quantities of waste or
refuse to accumulate therein, and at the end of each business day to leave the
Leased Premises in a condition such as reasonably to facilitate the performance
of the Landlord's janitor and cleaning services referred to in Section 5.06.
By-laws
4.09 To comply at its own expense with all municipal,
federal, provincial, sanitary, fire, building and safety statues, laws,
by-laws, regulations, ordinances, orders and requirements pertaining to the
operation and use of the Leased Premises, the condition of the Leasehold
Improvements, trade fixtures, furniture and equipment installed by the Tenant
therein and the making by the Tenant of any repairs, changes or improvements
therein or any other matter pertaining to the Leased Premises or the Tenant as
well as all rules and regulations of the Canadian Board of Fire Underwriters,
or any successor body and with the requirements of all insurance companies
having policies of any kind whatsoever in effect covering the Building which
are communicated to the Tenant.
Rules and Regulations
4.10 To observe, and to cause its employees, invitees and
all others over whom the tenant can reasonably be expected to exercise control
to observe the Rules and Regulations attached as Schedule "C" hereto, and such
further and other reasonable Rules and Regulations and amendments and changes
therein as may hereafter be made by the Landlord of which notice in writing
shall be given to the Tenant and all such Rules and Regulations shall be deemed
to be incorporated into and form part of this Lease. For the enforcement of
such Rules and Regulations, the Landlord shall have available to it all
remedies in this Lease provided for a breach thereof and all legal remedies
whether or not provided for in this Lease, both a Law and in equity. The
Landlord shall not be responsible or liable to the Tenant for the
non-observance or violation by any other tenant of any such Rules and
Regulations or the non-enforcement as against other tenants of such Rules and
Regulations or any loss or damage arising out of the same, and all Rules and
Regulations shall be applied uniformly to all Tenants.
-3-
Surrender, Overholding
4.11 That upon the expiration or other termination of the
Term of this Lease, the Tenant shall quit and surrender the Leased Premises in
vacant and clean possession and in good order, repair, decoration, and
condition (subject to the provisions of Sub-section 6.02 (a) hereof) and shall
remove all its property therefrom, except as otherwise provided in this Lease.
The Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Term of this Lease. If the Tenant shall
continue to occupy the Leased Premises after the expiration of this Lease
without further written agreement and without objection by the Landlord, the
Tenant shall be a month-to-month tenant at double the annual basic rent and
(except as to length of tenancy) on and subject to the provisions and
conditions herein set out including the payment of electrical charges and
Common Costs Escalation.
Signs and Directory
4.12 Not to paint, display, inscribe, place or affix any
sign, symbol, notice or lettering of any kind anywhere outside the Leased
Premises (whether on the outside or inside of the Building) or within the
Leased Premises so as to be viable from the outside of the Leased Premises,
with the exception only of an identification sign at or near the entrance of
the Leased Premises and a directory listing in the main lobby of the Building.
In each case containing only the name of the Tenant and such other names as the
Landlord may permit, and to be subject to the approval of the Landlord as to
design, size, location and content. Such identification sign and directory
listing shall be installed at the expense of the Tenant, and the Landlord
reserves the right to install them as an Additional Service.
Inspection and Access
4.13 That the Landlord shall be permitted at any time and
from time to time to enter and to have its authorized agents, employees and
contractors enter the Leased Premises for the purpose of Inspection, window
cleaning, maintenance, providing janitor services, making repairs, alterations
or improvements to the Leased Premises, adjoining premises or the Building, or
to have access to or make changes in utilities and services (including
underfloor and overhead ducts, air conditioning, heating, plumbing, electrical
and telephone facilities and access panels, all of which the Tenant agrees not
to obstruct) or to determine the electric light and power consumption by the
Tenant in the Leased Premises and the Tenant shall provide free and unhampered
access for such purposes, and shall not be entitled to compensation for any
inconvenience, nuisance and discomfort or loss caused thereby, but the Landlord
in exercising its rights hereunder shall proceed to the extent reasonably
possible so as to minimize interference with the Tenant's use and enjoyment of
the Leased Premises.
Exhibiting Premises
4.14 That the Landlord or its agents may enter and exhibit
the Leased Premises to active tenants or purchasers of the sold Land or the
Leased Premises during Normal Business Hours during the Term hereof, and place
upon the Leased Premises a notice, of reasonable dimensions and reasonably
placed, stating that said Land or the Leased Premises are for sale or to let
which notice the Tenant shall not remove or obscure or permit to be removed or
obscured, but the Landlord in exercising its rights hereunder shall proceed to
the extent reasonably possible so as to minimize interference with the Tenant's
use and enjoyment of the Leased Premises.
Name of Building
4.15 Not to refer to the Building by any name other than
that designated from time to time by the Landlord, nor to use such name for any
purpose other than that of the business address of the Tenant.
Acceptance of Leased Premises
4.16 That the Tenant shall be deemed to have examined the
Leased Premises before taking possession and the taking of possession shall be
conclusive evidence as against the Tenant that at the time thereof the Leased
Premises were in good order and satisfactory condition and that all
alterations, remodelling, decorating and installation of equipment and fixtures
required to be done by the Landlord have been satisfactorily completed save
only for such deficiencies of which notice shall have been given to the
Landlord within fifteen (15) days after the taking of possession. Any dispute
as to any aspects of the Landlord's work or completion or adequacy of the
Building, the Leased Premises or any part thereof shall be determined by the
Landlord's Architect.
ARTICLE 5
LANDLORD'S COVENANTS
The Landlord covenants with the Tenant as follows:
Quiet Enjoyment
5.01 That the Tenant paying the rent hereby reserved at the
times and in the manner aforesaid and observing and performing each and every of
the covenants, conditions, restrictions and stipulations by the Tenant to be
observed or performed shall and may peaceably and quietly possess and enjoy the
Leased Premises for the Term hereby granted without any interruption from the
Landlord or any other person lawfully claiming by, through, or under it.
Interior Climate Control
5.02 To maintain in the Leased Premises during Normal
Business Hours, and to the extent permitted by law by means of a heating and
cooling system, conditions of reasonable temperature and comfort in accordance
with good standards of interior climate control generally pertaining at the
date of this Lease applicable to normal occupancy of the said premises, but the
Landlord shall have no responsibility for any inadequacy of performance of the
said system if the Leased Premises depart from the design criteria for such
system as determined by the Landlord's Architect. If the use of the Leased
Premises does not accord with the said design criteria and changes in the
system are feasible and desirable to accommodate such use, the Landlord may
make such changes and the entire expense of such changes will be paid by the
Tenant. Notwithstanding the above, the Landlord acknowledges that, at the
commencement of the Lease, the layout conforms with acceptable design criteria.
Elevators
5.03 Subject to the supervision of the Landlord and except
when repairs are being made thereto, to furnish for use by the Tenant and its
employees and invitees in common with other persons entitled thereto passenger
elevator service (operatorless automatic elevator service, if used, shall be
deemed "elevator service'' within the meaning of this Section) to the floor on
which the Leased Premises or portions thereof are located, and to furnish for
the use of the Tenant in common with others entitled thereto at reasonable
intervals and at such hours as the Landlord may select, elevator service for
the carriage of furniture, equipment, deliveries and supplies, provided
however, that if the elevators shall become inoperative or shall be damaged or
destroyed the Landlord shall have a reasonable time within which to repair such
damage or replace such elevator and the Landlord shall repair or replace the
same as soon as reasonably possible, but shall in no event be liable for
indirect or consequential damages or other damages for personal discomfort or
illness during such period of repair or replacement.
4
Entrances, Lobbies, etc.
5.04 To permit the Tenant and its employees and invitees to
have the use during Normal Business Hours in common with others entitled thereto
of the common entrances, lobbies, stairways ad corridors of the Building giving
access to the Leased Premises (subject to the Rules and Regulations referred to
in Section 4.10 and such other reasonable limitations as the Landlord may from
time to time impose) provided that notwithstanding the foregoing the Landlord
reserves the right to restrict for security purposes the method of access on
Saturdays even during Normal Business Hours; and to permit access to the Leased
Premises outside of Normal Business Hours by the Tenant and its authorized
employees subject to such reasonable restrictions for security purposes as the
Landlord may impose.
Washrooms
5.05 To permit the Tenant and its employees and invitees in
common with others entitled thereto to use the washrooms in the Building on the
floor or floors on which the Leased Premises are situate and to provide in such
washrooms washroom supplies to a standard consistent with normal standards.
Janitor Services
5.06 To provide cleaning and janitorial services, including
window cleaning, to a standard and with services consistent with normal
standards from time to time for similar buildings in similar locations in the
city in which the Building is situate, provided that the Tenant shall at the
end of each business day leave the Leased Premises in a reasonably tidy
condition. With the exception of the obligation to cause such work to be done,
the Landlord shall not be responsible for any act or omission on the part of
the person or persons, firm or corporation employed to perform such work, and
such work shall be done at the Landlord's direction, without interference by
the Tenant, its servants, agents or employees.
ARTICLE 6
REPAIR AND DAMAGE AND DESTRUCTION
The Landlord and Tenant further covenants and agree as follows:
Landlord's Repairs
6.01 The Landlord covenants with the Tenant, subject to
Sub-section 6.03(b) and Section 11.02 hereof and except for reasonable wear and
tear, to keep in a good and substantial state of repair the exterior walls,
roof, foundations, and bearing structure of the Building and the pipes, heating
and air conditioning, plumbing and electrical wires installed by the Landlord.
Tenant's Repairs
6.02 The Tenant covenants with the Landlord:
(a) subject to sub-section 6.03(b) and except for
reasonable wear and tear and insured Damage,
except where the latter is caused by the
Tenant, its agents, employees, invitees or
Licensees, to keep in good and substantial
state of repair and decoration, including
repainting and cleaning of drapes and carpets
at reasonable intervals as needed, the Leased
Premises including all Leasehold improvements
and all trade fixtures therein and all glass
therein other than (subject to sub-section
6.02(d) hereof) perimeter windows on floors
above the Ground Floor of the Building:
(b) that the Landlord may from time to time enter
and view the state of repair, and that the
Tenant will repair according to notice in
writing:
(c) that if any part of the Building including
without limitation, the structure or the
structural elements of the Building, or the
systems for interior climate control or for
the provision of utilities or services get
out of repair, or become damaged or destroyed
through the negligence or misuse of the
Tenant or of its employees, invitees or
others over whom the Tenant can reasonably be
expected to exercise control, the expense of
repairs or replacements thereto necessitated
thereby shall be paid by the Tenant:
(d) that the Tenant shall during the continuence
of this Lease and at its expense repair and
replace with as good quality and size any
glass broken on the Leased Premises, and such
obligation shall include outside windows and
doors on the perimeter of the Leased Premises
whenever such glass shall be broken by the
Tenant, its servants, employees, agents or
invitees; and
(e) that the Tenant will notify the Landlord
immediately upon the Tenant becoming aware of
any defect in the Leased Premises or of any
other condition which may cause damage to the
Leased Premises or the Building.
Abatement and Termination
6.03 It is agreed between the Landlord and the Tenant
that:
(a) (i) In the event of partial destruction (as
hereinafter defined) of the Leased premises
by fire, the elements or other cause or
casualty, then in such event, if the
destruction is such, in the opinion of the
Landlord's Architect, that the Leased
Premises cannot be used for the Tenant's
business until repaired, the rent shall abate
until the repair has been made. If the
destruction is such that, in the opinion of
the Landlord's Architect, the Leased Premises
may be partially used for the Tenant's
business while the repairs are being made,
then the rent shall abate in the proportion
that the part of the Leased Premises rendered
unusable bears to the whole of the Leased
Premises, PROVIDED ALWAYS that if the part
rendered unusable exceeds one-half (1/2) of
the area of the Leased Premises there shall
be a total abatement of rent until the
repairs have been made unless the Tenant,
with the permission of the Landlord, in fact
uses the undamaged part, in which case the
Tenant shall pay proportionate rent for the
part so used (being annual basic rent,
electrical charges and Common Costs
Escalation, bearing the same proportion to
the annual basic rent, electrical charges and
Common Costs Escalation for the whole of the
Leased Premises as the area in square feet of
the part of the Leased Premises being used
bears to the Rentable Area of the Leased
Premises). "Partial destruction'' shall mean
any damage to the Leased Premises less than
total destruction, but which renders all or
any part of the Leased Premises temporarily
unfit for use by the Tenant for the Tenant's
business. A certificate of the Landlord's
Architect as to whether the whole or a part
of the Leased Premises is rendered unusable,
and certifying the extent of the part
rendered unusable, shall be binding and
conclusive upon both Landlord and Tenant for
the purposes hereof. Provided that if the
partial destruction is repaired within
fifteen (15) days after the date of
destruction, there shall be no abatement of
rent.
(ii) In the event of partial destruction (as hereinbefore
defined) the Landlord shall repair and
5
restore the Leased Premises according to the nature
of the damage with all reasonable diligence, except
for improvements installed by the Tenant which the
Tenant shall repair and restore, in both cases, to
substantially the condition the same were in
immediately before such destruction occurred, but to
the extent that any part of the Leased Premises is
not reasonably capable of use by reason of damage
which the Tenant is obligated to repair hereunder,
any abatement of rent to which the Tenant is
otherwise entitled hereunder shall not extend later
than the time by which, in the reasonable opinion of
the Landlord, repairs by the Tenant ought to have
been completed with reasonable diligence. Provided
however that the Tenant shall pay for the cost of
the repair and restoration of all destruction which
is attributable to the wilful act or neglect of the
Tenant, its servants or agents and in such a case,
notwithstanding anything herein otherwise contained,
there shall be no abatement of rent.
(b) (i) In the event of the total destruction (as
hereinafter defined) of the Leased Premises
by fire, the elements or other cause or
casualty, then in such event this Lease shall
terminate with effect from the date when such
destruction occurs. Thereupon the Tenant
shall immediately surrender the Leased
Premises and all its interest therein to the
Landlord and the Tenant shall pay rent only
to the time of such destruction, and the
Landlord may re-enter and repossess the
Leased Premises discharged of this Lease.
Upon such termination the Tenant shall remain
liable to the Landlord for all sums accrued
due to the Landlord pursuant to the terms
hereof to the date of such destruction.
"Total destruction'' shall mean such damage
to the Leased Premises that renders same
unfit for use by the Tenant for the Tenant's
business and which cannot reasonably be
repaired within six (6) months of the date of
the destruction to the state wherein the
Tenant could use substantially all of the
Leased Premises for its business. A
certificate of the Landlord's Architect
certifying that "total destruction'' has
occurred shall be binding and conclusive upon
both Landlord and Tenant for the purposes
hereof.
(ii) Notwithstanding the foregoing provisions
concerning total or partial destruction of
the Leased Premises, in the event of total or
partial destruction of the Building of which
the Leased Premises form a part (and whether
or not the Leased Premises are destroyed) to
such a material extent or of such a nature
that in the opinion of the Landlord the
Building must be or should be totally or
partially demolished, whether to be
re-constructed in whole or in part or not,
then the Landlord may, at its option (to be
exercised within sixty (60) days from the
date of destruction) give notice to the
Tenant that this Lease is terminated with
effect from the date stated in the notice. If
the Tenant is able effectively to use the
Leased Premises after the destruction, such
date shall be not less than thirty (30) days
from the date of the notice. If the Tenant is
unable effectively to use the Leased Premises
after the destruction, the date given in the
notice shall be the date of destruction. Upon
such termination, the Tenant shall
immediately surrender the Leased Premises and
all its interest therein to the Landlord and
the rent shall abate and be apportioned to
the date of termination and the Tenant shall
remain liable to the Landlord for all sums
accrued due pursuant to the terms hereof to
the date of termination. The Landlord's
Architect shall determine whether the Leased
Premises can or cannot be effectively used by
the Tenant and his certificate thereon shall
be binding and conclusive upon both Landlord
and Tenant for the purposes hereof.
(iii) In none of the cases aforesaid shall the
Tenant have any claim upon the Landlord for
any damages sustained by it nor shall the
Landlord be obligated to rebuild the Building
or any part thereof in accordance with the
original plans and specifications therefor.
No damages, compensation or claim whatsoever
shall be payable by the Landlord for
inconvenience, loss of business or annoyance
or other loss or damage whatsoever arising
from the occurrence of any such damage or
destruction of the Leased Premises or of the
Building and\or the repair or restoration
thereof.
ARTICLE 7
TAXES AND OPERATING COSTS
The Landlord and the Tenant further covenant and agree:
Landlord's Tax Obligations
7.01 The Landlord covenants with the Tenant subject to the
provisions of Sections 7.02 and 7.03 to pay promptly when due to the taxing
authority or authorities having jurisdiction, all Taxes (as defined in Section
16.01 hereof).
Business Taxes and Common Costs Escalations
7.02 The Tenant covenants with the Landlord:
(a) to pay when due all business taxes, business
licence fees, and other taxes, rates duties or
charges levied or assessed by lawful authority in
respect of the use or occupancy of the Leased
Premises by the Tenant, the business or businesses
carried on therein, or the equipment, machinery or
fixtures brought therein by or belonging to the
Tenant, or anyone occupying the Leased Premises with
the Tenant's consent, and to pay to the Landlord
upon demand the portion of any tax, rate, duty or
charge levied or assessed upon the Land and building
that is attributable to any equipment, machinery or
fixtures on the Leased Premises which are not the
property of the Landlord.
(b) to pay to the Landlord in the manner specified
in Section 7.03 as additional rent any Common
Costs Escalation.
(c) to reimburse the Landlord throughout the term
and at the times and in the manner specified
by the Landlord from time to time, the full
amount of any tax, sales tax, goods and
services tax, value added tax, multi-stage
sales tax, business transfer tax or any other
similar tax levied, rated, charged, imposed
or assessed in respect of the rent,
additional rent or any other amounts payable
pursuant to this Lease or in respect of the
space demised under this Lease''.
Payment of Common Costs
7.03 (a) After the commencement of the Term of this
Lease and prior to the commencement of each
calendar year thereafter which commence during
the Term the Landlord shall
6
Escalation
estimate the Common Costs Escalation for the
ensuing calendar year or (if applicable)
broken portion thereof, as the case may be,
to become payable under Section 7.02, and
notify the Tenant in writing of such
estimate. The amount so estimated (which
amount may be re-estimated from time to time
during the calendar year) shall be payable
in equal monthly installments in advance
over the calendar year or broken portion of
the calendar year in question, each such
installment being payable on each monthly
rental payment date provided in Article 3
hereof.
(b) When the Common Costs for the calendar year or
broken portion of the calendar year in
question become finally determined the
Landlord shall recalculate the Common costs
Escalation. If the Tenant has overpaid such
Common Costs escalation, the Landlord shall
refund any excess paid, but if any balance
remains unpaid the Tenant shall pay such
remaining balance within thirty (30) days of
demand by the Landlord. If for any reason
the Common Costs Escalation is not finally
determined within such calendar year or
broken portion thereof, the parties shall
make the appropriate re-adjustment when such
Common Costs Escalation becomes finally
determined. The obligation of the parties to
observe or perform this covenant shall
survive the expiration or other termination
of the Term of this Lease.
(c) Neither party may claim a re-adjustment in
respect of the Common Costs Escalation based
upon any error of estimation, determination
or calculation thereof unless claimed in
writing prior to the expiration of two (2)
years after the end of the calendar year to
which the Common Costs Escalation relates.
Any report of the Landlord's accountant (who
may be the Landlord's internal auditor or
accountant) as to the Common Costs
Escalation shall be conclusive as to the
amount thereof for any period to which such
report relates.
Postponement Etc., of Taxes
7.04 The Landlord may postpone payment of any Taxes payable
by it pursuant to Section 7.01 and the Tenant may postpone payment of any taxes,
rates, duties, levies and Assessments payable by it under Sub-section 7.02
[uncleared text], in each case to the extent permitted by law and if prosecuting
in good faith any appeal against the imposition thereof, and provided in the
case of a postponement by the Tenant that if the building or any part thereof or
the Landlord shall become liable to assessment, prosecution, fine or other
liability the Tenant shall have given security in a form and of an amount
satisfactory to the Landlord in respect of such liability and such undertakings
as the Landlord may reasonably require to ensure payment thereof.
Receipts Etc.
7.05 Whenever requested by the Landlord the Tenant will
deliver to it receipts for payment of all taxes, rates, duties, levies and
assessments payable by the Tenant pursuant to Sub-section 7.02 (a) hereof and
furnish such other information in connection therewith as the Landlord may
reasonably require.
ARTICLE 8
UTILITIES AND ADDITIONAL SERVICES
The Landlord and Tenant further covenant and agree as follows:
Water, Telephone and Electricity
8.01 The Landlord shall furnish appropriate conduits for
bringing building standard electrical and telephone services to the Leased
Premises and shall provide hot and cold or tempered water to the building
standard washrooms on each floor on which the Leased Premises are situate.
Utilities
8.02 The Tenant shall pay for the cost of all utilities
provided for its exclusive use in the Leased Premises, including without
restricting the generality of the foregoing or of Section 8.03, gas, water,
electricity, telephone and communication service charges and rates incurred by
the Tenant and any other charges and/or rates relating to services and/or
utilities provided for the exclusive use of the Tenant in respect of the
Tenant's occupation of the Leased Premises and operation of its business
carried on therein or therefrom, including laboratory work and any special
systems servicing its own computers or any other machinery.
Electricity
8.03 (a) That the Tenant shall pay to the Landlord as
additional rent the Tenant's proportionate share
(being a fraction, the numerator of which is the
Gross Area of the Leased Premises and the
denominator of which is the Total Rentable Area) of
the cost of electricity supplied to the Building in
equal monthly installments on the first day of each
month during the year, the first such installment to
be due and payable on the date on which the first
installment of annual basic rent falls due under
Article 3 hereof. Such monthly installments shall be
paid in advance as estimated and determined from
time to time by the Landlord.
(b) The Landlord may from time to time determine the
Tenant's electrical consumption in the Leased
Premises upon whatever reasonable basis may be
selected by it, including without limitation, the
metering of electricity either to the Leased
Premises or to special equipment therein or by
estimating the consumption of the Leased Premises or
any special equipment therein having regard to
electrical capacity and hours of use. If the
Landlord determines that the Tenant's electrical
consumption is disproportionate to the electrical
consumption of other tenants in the building; the
Landlord may require the Tenant to install at the
Tenant's expense, a domestic meter for measurement
or checking of the Tenant's electrical consumption
or any part of such consumption or use. The Tenant
shall pay to the Landlord as and when due from time
to time any and all electrical charges for such
electrical consumption which is disproportionate as
aforesaid. The Landlord's determination shall be
verified by an engineer selected by the Landlord
(who may be an employee of the Landlord) and being
so verified shall be binding on the parties hereto.
Excess Use
8.04 The Tenant's use of electric power in the Leased
Premises shall not be for the operation of other than normal office electrical
fixtures, lights, lamps, typewriters, photocopiers, bookkeeping machines,
telexes, adding machines and similar small office machines for Tenant's own use
solely (the Landlord to determine what equipment is characterizable as "small
office machines" and "normal office" equipment), without the prior written
consent of the Landlord and shall not at any time exceed the capacity of any of
the electrical conductors and equipment in or otherwise serving the Leased
Premises. As a condition of granting such consent, the Landlord may require the
Tenant to pay as additional rent the cost of all additional risers and other
equipment required therefor as well as the increased cost to the Landlord of
the electric power and the Additional Services to be furnished by the Landlord
in connection therewith.
- 7 -
Lamps
8.05 The Tenant shall pay throughout the Term promptly to
the Landlord when demanded the cost of maintaining and servicing in all respects
all electric lighting fixtures in the Leased Premises including the cost of
replacement on a group basis or otherwise of electric light bulbs, fluorescent
tubes, starters and ballasts installed on commencement of the said Term. Such
maintaining, servicing and replacing shall be within the exclusive right of the
Landlord and shall be carried out at reasonably competitive rates.
Additional Services
8.06 The Landlord, if it shall from time to time so elect,
shall have the exclusive right, by way of Additional Services, to provide or
have its designate agents or contractors provide any Janitor or cleaning
services to the Leased Premises required by the Tenant which are additional to
those required to be provided by the Landlord under Section 5.06 and to
supervise the moving of furniture or equipment of the Tenant and the making of
repairs or alterations conducted within the Leased Premises, and to supervise
or make deliveries to the Leased Premises. The cost of Additional Services
provided to the Tenant shall be paid to the Landlord by the Tenant from time to
time promptly upon receipt of invoices therefor from the Landlord. The Landlord
may include as part of its costs of rendering such Additional Services the
Landlord's then current administration [uncleared text]. Costs of Additional
Services recovered directly from the Tenant and other tenants shall not be
included in computing Operating Costs.
ARTICLE 9
LICENSES, ASSIGNMENTS AND SUBLETTINGS
The Landlord and Tenant further covenant and agree as follows:
Assignments and Sublettings
9.01 (a) The Tenant shall not assign, mortgage or charge this
Lease or sublet the whole or any part of the Leased Premises nor shall it permit
any subtenant to sublet the whole or any part of the Leased Premises (all of the
foregoing being sometimes collectively referred to herein as a "Transfer")
unless it shall have first requested and obtained the consent in writing of the
Landlord thereto. Any request for such consent shall be in writing and shall be
accompanied by a true copy of any agreements relating to the Transfer which the
Tenant may have received, and the Tenant shall furnish to the Landlord all
information requested by the Landlord as to the business and financial
responsibility and standing of the proposed assignee, subtenant, mortgagee or
charges (herein referred to as the "Transferee").
(b) The Landlord's consent to the Tenant's request for consent
to a Transfer shall not unreasonably be withheld, provided nevertheless that
the Landlord shall be entitled to withhold consent unreasonably if the Landlord
exercises the right hereinafter set out in Sub-section 9.01(c); and provided
further that the Landlord's consent to any assignment, mortgage, or charge
shall be conditional upon the assignee entering into an agreement in form
satisfactory to the Landlord to perform, observe and keep each and every
covenant, proviso, condition and agreement in this Lease on the part of
the Tenant to be performed, observed and kept, including payment of rent and all
other sums and payments agreed to be paid or payable under this Lease on the
days and at the time and in the manner herein specified. Without limiting the
grounds for withholding [uncleared text] to a Transfer, the Landlord's refusal
to consent will not be considered unreasonable if a reason for withholding the
consent is (i) that the Landlord has concerns, on reasonable grounds, about the
business, financial background, business history of creditworthiness of the
proposed Transferee or about the use to which the Premises may be put or (ii)
the Transferee's refusal to execute an agreement of the type referred to above.
(c) Upon the receipt from the Tenant of such request and such required
information, the Landlord shall have the right, exercisable in writing within
fourteen (14) days after such receipt, to cancel and terminate this Lease if the
request relates to all the Leased Premises or to cancel this Lease only with
respect to the applicable part of the Leased Premises if the request relates
only to a part of the Leased Premises. In a case where the Tenant's request for
consent to a Transfer relates only to a part of the Leased Premises, the phrase
"cancellation of this Lease" means cancellation of this Lease only with
respect to the applicable part of the Premises, and similar expressions have
similar meanings. Such cancellation shall be effective as of the date set forth
in the Landlord's notice of exercise of such right, which shall be neither less
than sixty (60) nor more than one hundred and twenty (120) days following the
service of such notice. If the Lease is cancelled only with respect to a part of
the Premises, Basic Rent will abate in the proportion that the Rentable Area of
the part of the Premises for which the Lease is cancelled bears to the Rentable
Area of the Premises, and the Lease will be amended accordingly.
Should the Landlord notify the Tenant of its intent to terminate the Lease
according to its rights as outlined hereunder, the Tenant shall have five (5)
business days in which to withdraw its request for transfer, in which case the
Landlord shall no longer have the right to terminate. Should the Landlord
terminate, the Landlord shall reimburse the Tenant for any reasonable capital
costs that the Tenant has incurred in constructing or altering the layout of the
premises.
(d) If the Landlord shall exercise such right the Tenant shall
surrender possession of the Leased Premises or the cancelled portion thereof on
the date net forth in such notice in accordance with the provisions of this
Lease relating to surrender of the Leased Premises at the expiration of the
Term.
(e) If the Landlord shall not exercise the right to cancel this
Lease or a proportion thereof, as above provided after the receipt of the
Tenant's written request, then the Landlord's consent to such request shall not
be unreasonably withheld. In no event shall any Transfer to which the Landlord
may have consented release or relieve the Tenant from its obligations fully to
perform all the terms, covenants and conditions of this Lease on its part to be
performed. No consent by the Landlord to any Transfer shall be construed to
mean that the Landlord has consented or will consent to any further Transfer.
(f) Documents evidencing the Landlord's consent to a Transfer,
if permitted or consented to by the Landlord, will be prepared by the Landlord
or its solicitors, and all related legal costs will be paid by the Tenant to
the Landlord or its solicitors, as Additional Rent, within fifteen (15) days
after receipt of an invoice from the Landlord setting out reasonable
particulars of the charges.
(g) If after the date of execution of this Lease, shares not
listed for sale on a recognized stock exchange in Canada or the United States
in the capital of either the Tenant or a corporation that controls the Tenant
are transferred by sale, assignment, bequest, inheritance, operation of law or
other disposition, or are issued by subscription or allotment, or are cancelled
or redeemed, so as to result in a change in the effective voting or other
control of the Tenant, or of a corporation that controls the Tenant, by the
person or persons holding control on the date of execution of this Lease (or on
the date when the Tenant becomes a corporation, if later, or on the date the
Landlord has consented to a Transfer to a corporation, if later, whichever is
applicable), or if other steps are taken to accomplish a change of control, the
Tenant promptly will notify the Landlord in writing of the change of control,
which will be considered to be an assignment of this Lease to which the
provisions of this Article shall apply. Whether or not the Tenant notifies the
Landlord, unless the Landlord previously had consented to the change of
control, the Landlord may, within sixty (60) days after it learns of the change
in control, notify the Tenant that it elects to terminate this Lease. The
Tenant will make available to the Landlord or its lawful representatives all
corporate books and records of the Tenant and of any corporation that controls
the Tenant for inspection at all reasonable times.
8
to ascertain to the extent possible whether there has been a change of control.
For the purposes of this section, control means the direct or indirect
beneficial ownership of more than Fifty Percent (50%) of the voting shares in
the capital of a corporation.
(h) If an approved Transferee has sublet or taken an assignment of all or
part of the Premises from the Tenant and has agreed to pay the Tenant a rent or
other amount in respect of the Premises or any part of the Premises that exceeds
the rent payable by the Tenant to the Landlord (or a pro-rated portion of such
rent in the case of a sublease or assignment of less than the entire Premises),
the Tenant will pay to the Landlord monthly, as Additional rent, together with
Basic Rent, an amount equal to the excess rent or other amount received or
receivable by the Tenant from the Transferee.
(i) If the Landlord sells or otherwise disposes of the Building or an
interest in the Building or in this Lease to the extent that the purchaser or
assignee assumes responsibility for compliance with the covenants and
obligations of the Landlord under this Lease, the Landlord without further
written agreement will be relieved of liability under the covenants and
obligations.
ARTICLE 10
FIXTURES AND IMPROVEMENTS
The Landlord and Tenant further covenant and agree as follows:
Installation of Fixtures & Improvements
10.01 (a) The Tenant will not make, erect, install or alter
any Leasehold improvements or trade fixtures in the Leased Premises
without having requested and obtained the Landlord's prior written
approval, which the Landlord shall not unreasonably withhold.
(b) In making, erecting, installing or altering any
Leasehold improvements or trade fixtures the Tenant will not alter or
interfere with any installations which have been made by the Landlord
without the prior written approval of the Landlord, and in no event
shall alter or interfere with or affect the structural elements or the
strength or outside appearance of the Building, or the mechanical,
electrical, plumbing and climate control systems thereof or the
window coverings installed by the Landlord on exterior windows.
(c) The Tenant's request for any approval hereunder shall
be in writing and accompanied by an adequate description of the
contemplated work and, where appropriate, working drawings and
specifications therefor. Any out-of-pocket expense incurred by the
Landlord in connection with any such request for approval shall be
deemed incurred by way of an additional service. All work to be
performed in the Leased Premises shall be performed by competent
contractors and subcontractors of whom the Landlord shall have
approved (such approval not to be unreasonably withheld, but provided
that the Landlord may require that the Landlord's contractors and
subcontractors be engaged for any mechanical or electrical work) and
by workmen whose labour affiliations are compatible with those of
workmen employed by the Landlord and its contractors and
subcontractors. At the option of the Landlord, all such work shall be
subject to inspection by and the reasonable supervision of the
Landlord, as an additional service, and shall be performed in
accordance with any reasonable conditions or regulations imposed by
the Landlord (including without limitation the examination by the
Landlord's Architect or other experts of the detailed drawings and
specifications as an additional service and contractor's liability
insurance in reasonable amounts) and completed in a good and
workmanlike manner in accordance with the description of the work
approved by the Landlord.
Liens and Encumbrances of Fixtures & Improvements
10.02 In connection with the making, erection, installation or
alteration of Leasehold improvements and trade fixtures and all other work or
installations made by or for the Tenant in the Leased Premises the Tenant shall
comply with all the provisions of the applicable provincial legislation in
respect of mechanics' (/builders') liens and workmen's (/workers')
compensation and other statutes from time to time applicable thereto (including
any provision requiring or enabling the retention of portions of any sums
payable by way of holdbacks) and except as to any such holdback shall promptly
pay all accounts relating thereto. The Tenant will not create or cause to be
created any mortgage, conditional sale agreement or other encumbrance in respect
of the Leasehold improvements or permit any such mortgage, conditional sale
agreement or other encumbrance to attach to the Leased Premises or the Building
or any part thereof. If and whenever any mechanics' (/builders') or other lien
for work, labour, services or materials supplied to or for the Tenant or for the
cost of which the Tenant may be in any way liable or claims therefor shall arise
or be filed or any such mortgage, conditional sale agreement or other
encumbrance shall attach, the Tenant shall within twenty (20) days after receipt
of notice thereof procure the discharge thereof, including any certificate of
action registered in respect of any lien, by payment or giving security or in
such other manner as may be required or permitted by law, and failing which the
Landlord may in addition to all other remedies hereunder avail itself of its
remedy under Section 13.01 and may make any payments required to procure the
discharge of any such liens or encumbrances, shall be reimbursed by the Tenant
as provided in Section 13.01, and its right to reimbursement shall not be
affected or impaired if the Tenant shall then or subsequently establish or claim
that any lien or encumbrance so discharged was without merit or excessive or
subject to any abatement, set-off or defence.
Removal of Fixtures and Improvements
10.04 All Leasehold improvements in or upon the Leased Premises
installed by the Tenant shall immediately upon termination of this Lease be and
become the Landlord's property without compensation therefor to the Tenant.
Except to the extent herein or otherwise expressly agreed by the Landlord in
writing, no Leasehold improvements, trade fixtures, furniture or equipment
shall be removed by the Tenant from the Leased Premises either during or at the
expiration or sooner termination of the Term, except that (1) the Tenant, if
not in default hereunder, may remove its trade fixtures; (2) the Tenant, if not
in default hereunder, may remove its furniture and equipment; and (3) the
Tenant shall at the end of the Term remove such of its trade fixtures,
furniture and equipment as the Landlord shall require to be removed. The Tenant
shall, in the case of every removal either during or at the end of the Term,
make good any damage caused to the Leased Premises and/or the Building by the
installation and removal.
9
ARTICLE 11
INSURANCE AND LIABILITY
The Landlord and Tenant further covenant and agree as follows:
Tenant's Insurance
11.01 The Tenant shall take out and keep in force during the Term:
(a) comprehensive general public liability insurance
(covering bodily injury, death and property damage)
on an occurrence basis with respect to all
construction, installation and alteration done in
the Leased Premises by the Tenant, the business
carried on, in or from the Leased Premises and the
Tenant's use and occupancy thereof, of not less
than $1,000,000.00;
(b) Insurance in such amounts as may be reasonably
required by the Landlord in respect of fire and
such other perils as are from time to time defined
in the usual extended coverage endorsement covering
the Tenant's trade fixtures and the furniture and
equipment of the Tenant and all Leasehold
improvements of the Tenant, and which insurance
shall include the Landlord as a named insured as
the Landlord's interest may appear with respect to
insured Leasehold Improvements and provide that any
proceeds recoverable in the event of lose to
Leasehold Improvements shall be payable to the
Landlord but the Landlord agrees to make available
such proceeds toward the repair or replacement of
the insured property if this Lease is not
terminated pursuant to any provision hereof, and if
this Lease is terminated for reasons other than the
default of the Tenant hereunder, the Landlord and
Tenant agree that the proceeds shall be divided
between the Landlord and the Tenant as their
respective interests in the Leasehold Improvements
may appear, (as determined by agreement or falling
agreement by arbitration pursuant to Section 15.10
hereof); and
All insurance required to be maintained by the Tenant hereunder
shall be in amounts and on terms satisfactory to the Landlord, such
insurance shall be by policies in form satisfactory from time to
time to the Landlord and with insurers acceptable to the Landlord
and shall provide that such insurers shall provide to the Landlord
thirty (30) days prior written notice of cancellation or material
alteration of such policies. Each policy shall name the Landlord as
an additional insured except for coverage for the Tenant's trade
fixtures and furnishings and equipment but including coverage for
Leasehold Improvements in respect of the Landlord's Insurable
interest therein, and shall contain a waiver of cross-claim and
subrogetion against the Landlord and shall protect and indemnify
both the Landlord and the Tenant. The Tenant shall furnish to the
Landlord certificates, or, if required by the Landlord, certified
copies of the policies (signed by the Insurers) of the Insurance
from time to time required to be affected by the Tenant and evidence
acceptable to the Landlord of their continuation in force. If the
Tenant shall fall to take out, renew and keep in force such
insurance the Landlord may do so as the agent of the Tenant and the
Tenant shall repay to the Landlord any amounts paid by the Landlord
as premiums forthwith upon demand.
Limitation of Landlord's Liability
11.02 The Tenant covenants and agrees that:
(a) The Landlord shall not be liable for any bodily
injury to or the death of, or loss or damage to any property
belonging to, the Tenant or its employees, invitees, or licensees or
any other person (on the Land for the purpose of attending at the
Leased Premises), on or about the Land, unless resulting from the
actual fault or negligence of the Landlord; provided that in no
event shall the Landlord by liable for any consequential injury,
loss or damage, or:
(i) for any injury or damage of any nature
whatsoever to any persons or property
caused by the failure by reason of a
breakdown or other cause, to supply
adequate drainage, snow or ice removal, or
by reason of the interruption of any public
utility or other service, or in the event
of gas, steam, water, rain, snow, ice or
other substances leaking, issuing or
flowing from the water, steam, sprinkler or
drainage pipes or plumbing of the building
or from any other place or quarter, into
any part of the Leased Premises or for any
loss or damage caused by or attributable to
the condition or arrangement of any
electric or other wiring or for any damage
caused by anything done or omitted to be
done by any other tenant of the Building:
(ii) for any act or omission (including theft,
malfeasance or negligence) on the part of
any agent, contractor or person from time to
time employed by it to perform Janitor
services, security services, maintenance,
supervision or Additional Services or any
other work in or about the Leased Premises or
the building;
(iii) for loss or damage, however caused, to
money, securities, negotiable instruments,
papers or other valuables of the Tenant,
including any consequential loss or damage
resulting therefrom; or
(iv) for loss or damage to any automobiles or
their contents or for the unauthorized use by
other tenants or strangers of parking space
allotted to the Tenant, but the Tenant's
rights shall be against the person or persons
causing such damage or occupying such space;
and the Tenant covenants to indemnify the
Landlord against and from all loss, costs,
claims and demands in respect of any such
injury or loss to it or its employees,
invitees or Licensees or any other person
on the Land for the purpose of attending at
the Leased Premises or in respect of any
such damage to property belonging to or
entrusted to the care of any of the
aforementioned;
(b) the Landlord shall have no responsibility or
liability for the failure to supply interior climate control or
elevator service when prevented from doing so by strikes, the
necessity of repairs, any order or regulation of any body having
jurisdiction, the failure of the supply of any utility required for
the operation thereof or any other cause beyond the Landlord's
reasonable control, and shall not be held responsible for indirect
or consequential damages or other damages for personal
10
discomfort or illness or injury resulting therefrom or for any bodily
injury, death or damage to property arising from the use of, or any
happening in or about, any elevator;
(c) the Landlord may require one (1) year after the
Tenant has fully occupied the Leased Premises in order to adjust
and balance the climate control system and the Landlord shall not be
responsible for any inconvenience, discomfort, damages, loss or
claims whatsoever arising out of the process of such adjustment or
balancing;
(d) the Landlord shall be under no obligation to repair
or maintain or insure the Tenant's Leasehold Improvements, furniture,
equipment or other property;
(e) the Landlord shall be under no obligation to remedy
any default of the Tenant, and shall not incur any liability to the
Tenant for any act or omission in the course of its curing or
attempting to cure any such default or in the event of its entering
upon the Leased Premises to undertake any examination thereof or any
work therein or in the case of any emergency.
Indemnity of Landlord
11.03 The Tenant agrees to defend, indemnity and save harmless the Landlord
in respect of all claims for bodily injury or death, property damage or other
loss or damage arising howsoever out of the use or occupation of the Leased
Premises or from the conduct of any work by or any act or omission of the Tenant
or any assignee, subtenant, agent, employee, contractor, invitee or licencee of
the Tenant, and in respect of all costs, expenses and liabilities incurred by
the Landlord in connection with or arising out of all such claims, including the
expenses of any action or proceeding pertaining thereto, and in respect of any
loss, cost, expense or damage suffered or incurred by the Landlord arising from
any breach or non-performance by the Tenant of any of its covenants or
obligations under this Lease. The Tenant's obligation to observe or perform
this covenant shall survive the expiration or other termination of the Term of
this Lease.
ARTICLE 12
SUBORDINATION, ATTORNMENT, REGISTRATION AND CERTIFICATES
The Tenant agrees with the Landlord that:
Subordination and Attornment
12.01 This Lease and all rights of the Tenant hereunder are subject and
subordinate to all mortgages, trust deeds or trust indentures (and all
instruments supplemental thereto) or other forms of loan security now or
hereafter existing which may now or hereafter affect the Land or Building and
to all renewals, modifications, consolidations, replacements and extensions
thereof; provided that the Tenant whenever requested by any mortgagee
(including any trustee under a trust deed or trust indenture) shall attorn to
such mortgagee as the tenant upon all the terms of this Lease. The Tenant agrees
to execute promptly whenever requested by the Landlord or by such mortgagee an
instrument of subordination and/or attornment, as may be required of it.
Registration
12.02 The Tenant will not register this Lease in this form in the Registry
Office or the Land Titles Office and will not request or apply for issue of a
Leasehold title for this Lease. If the Tenant desires to make a registration in
respect of this Lease, the Tenant shall effect registration by caveat or by a
short form of Lease, provided that such caveat or short form of Lease shall not
disclose the rental rate or rates payable under this Lease.
Certificates
12.03 The Tenant shall promptly whenever requested by the Landlord from time
to time execute and deliver to the Landlord (and if required by the Landlord, to
any mortgagee (including any trustee under a trust deed or trust indenture)
designated by the Landlord) a certificate in writing as to the status of this
Lease, including as to whether it is in full force and effect, is modified or
unmodified, confirming the rental payable hereunder and the state of the
accounts between the Landlord and Tenant, the existence or non-existence of
defaults, and any other matters pertaining to this Lease as to which the
Landlord shall request a certificate.
ARTICLE 13
REMEDIES OF LANDLORD AND TENANT'S DEFAULT
The Landlord and Tenant further covenent and agree as follows:
Remedying by Landlord, payment and interest
13.01 In addition to all rights and remedies of the Landlord available to
it in the event of any default hereunder by the Tenant either by any other
provision of this Lease or by statute or the general law, the Landlord:
(a) shall have the right (but shall not be obligated to)
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 such event all expenses of the Landlord in
remedying or attempting to remedy such default
shall be payable by the Tenant to the Landlord
forthwith upon demand, together with a fee for
supervision for carrying out the Tenant's
obligations in an amount equal to the product of
the Prime Rate plus two per cent (2%) multiplied by
the cost of repairs or other work carried out by or
under the supervision of the Landlord which amount
shall be in addition to the incurred costs of such
work;
(b) may recover as additional rent all sums paid or
expenses incurred hereunder by the Landlord, which
ought to have been paid or incurred by the Tenant,
or for which the Landlord hereunder is entitled to
reimbursement from the Tenant, and any interest
owing to the landlord hereunder, by any and all
remedies available to it for the recovery of rent
in arrears;
(c) if the Tenant shall fail to pay any rent or other
amount from time to time; payable by it to the
Landlord hereunder promptly when due, shall be
entitled to interest thereon at the Prime Rate plus
two per cent (2%) per annum from the date upon
which the same was due until actual payment thereof.
Remedies Cumulative
13.02 The Landlord may from time to time resort to any or all of
the rights and remedies available to it in the event of any default hereunder by
the Tenant, either by any provision of this Lease or by statue or the general
Law, all of which rights and remedies are intended to be cumulative and not
alternative, and the express provisions hereunder as to certain rights and
remedies are not to be interpreted as excluding any other or additional rights
and remedies available to the Landlord by statue or the general law.
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Right of Re-entry on Termination
13.03 If this Lease shall have become terminated pursuant to any
provision hereof, or if the Landlord shall have become entitled to terminate
this Lease and shall have given notice terminating it pursuant to any provision
hereof, 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.
Re-entry and Termination
13.04 If an whenever the Landlord becomes entitled to or does
re-enter the Leased Premises under any provision of this Lease, the Landlord, in
addition to all other rights and remedies, shall have the right to terminate
this Lease forthwith by leaving upon the Leased Premises notice in writing of
such termination, and in such event the Tenant shall forthwith vacate and
surrender the Leased Premises.
Rights on Re-entry
13.05 Whenever the Landlord becomes entitled to re-enter upon the
Leased Premises under any provision of this Lease, the Landlord in addition to
all other rights it may have shall have the right to enter the Leased Premises,
as agent of the Tenant, either by force or otherwise without being liable for
any loss or damage occasioned thereby and to re-let them and to receive the
rent therefor and as the agent of the Tenant to take possession of any
furniture or other property thereon and to sell the same at public or private
sale without notice and to apply the proceeds thereof and any rent derived from
re-letting the Leased Premises, after deducting its costs of conducting such
sale and its costs of re-letting, upon account of the rent due and to become
due under this Lease and the Tenant shall be liable to the Landlord for the
deficiency, if any.
Payment of Rent, etc. on Termination
13.06 If the Landlord shall re-enter and this Lease shall be
terminated as provided for herein, then the Tenant shall pay to the Landlord on
demand:
(a) rent up to the time of re-entry or termination
whichever shall be the later plus accelerated rent as herein
provided;
(b) all other amounts payable hereunder until such time;
(c) such expenses as the Landlord may incur or have
incurred in connection with re-entering or terminating and
re-letting, or collecting sums due or payable by the Tenant
or realizing upon assets seized including brokerage, legal
fees and disbursements, (on a solicitor-client basis) and
the expense of keeping the Leased Premises in good order,
repairing the same and preparing them for re-letting; and
(d) as liquidated damages for the loss of rent and
other income of the Landlord expected to be derived from the
Lease during the period which would have constituted the
unexpired portion of the Term had it not been terminated,
the amount, if any, by which the rental value of the Leased
Premises for such period established by reference to the
terms and provisions of this Lease exceeds the rental value
of the Leased Premises for such period established by
reference to the terms and provisions upon which the
Landlord re-lets them, if such re-letting is accomplished
within a reasonable time after termination of this Lease,
and otherwise with reference to all market and other
relevant circumstances. Rental value is to be computed in
each case by reducing to present worth at an interest rate
equal to the then current Prime Rate all rent and other
amounts to become payable for such period and where the XXXX
of amounts to become payable requires it, the Landlord may
make estimates and occupations of fact which shall govern
unless shown to be unreasonable or erroneous.
ARTICLE 14
EVENTS TERMINATING LEASE
The Landlord and Tenant further covenant and agree as follows:
Cancellation of Incurance
14.01 If any policy of Insurance upon the Building from time to
time effected by the Landlord shall be cancelled or be about to be cancelled by
the insurer or an insurer shall refuse or decline to place or renew insurance by
reason of the use or occupation of the Leased Premises by the Tenant or any
assignee, subtenant or licensee of the Tenant or anyone permitted by the Tenant
to be upon the Leased Premises and the Tenant after receipt of notice in writing
from the Landlord shall have failed to take such immediate steps in respect of
such use or occupation as shall enable the Landlord to reinstate, renew, replace
or avoid cancellation of (as the case may be), such policy of insurance, the
Landlord may at its option, at anytime and without notice:
(a) enter upon the Leased Premises and remove the said
use or condition, or
(b) re-enter upon and take possession of the Leased
Premises and/or terminate this Lease by leaving
upon the Leased Premises notice in writing of such
termination.
Default
14.02 If and whenever:
(a) the rent, additional rent, or other moneys payable
by the Tenant or any part thereof shall not be paid
on the day appointed for payment thereof, whether
lawfully demanded or not, and the Tenant shall have
failed to pay such rent or other moneys within five
(5) business days after the Landlord shall have
given to the Tenant notice of default in such
payment;
(b) the Tenant shall breach or fail to observe or perform
any of the covenants, agreements, provisions,
conditions, Rules and Regulations or other
obligations on the part of Tenant to be kept,
observed or performed hereunder and shall persist
in such failure after fifteen (15) days notice by
the Landlord requiring that the Tenant remedy,
correct, desist or comply (or in the case of any
such breach which reasonably would require more
than fifteen (15) days to rectify unless the Tenant
shall commence rectification within the fifteen
(15) day period and thereafter promptly and
diligently and continuously proceed with the
rectification of the breach);
(c) without the written consent of the Landlord, the
Leased Premises shall be used by any persons other
than the Tenant or its permitted assigns or
subtenants or for any purpose other than that for
which they were Leased, or occupied by any persons
whose occupancy is prohibited by this Lease;
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(d) the Leased Premises shall be vacated or
abandoned, or remain unoccupied for fifteen (15)
days or more while capable of being occupied;
(e) the Term of any of the goods and chattels of the
Tenant shall at any time be taken or be exigible in
execution or in attachment or if a writ of execution
shall issue against the Tenant, the Tenant shall
attempt or threaten to move its goods, chattels or
equipment out of the Leased Premises (other than in
the ordinary course of its business or as permitted
hereunder) or shall cease to conduct business from
the Leased Premises;
(f) the Tenant shall make a general assignment for
the benefit of creditors or a bulk sale of its goods
or if a receiver shall be appointed for the
business, property, affairs or revenues of the
Tenant; or
(g) the Tenant shall become insolvent or commit on
act of bankruptcy or become bankrupt or take the
benefit of any statute now or hereafter in force for
bankrupt or insolvant debtors or (if a corporation)
shall take any steps or suffer any order to be made
for its winding-up or other termination of its
corporate existence:
then and in any of such cases, at the option of the
Landlord, the full amount of the current month's and
the next three (3) month's monthly rent shall
immediately become due and payable and the Landlord
may immediately distrain for the same, together with
any arrears then unpaid; and the Landlord may without
notice or any form of legal process forthwith
re-enter upon and take possession of the Leased
Premises or any part thereof in the name of the whole
and remove and sell the Tenant's goods, chattels and
equipment therefrom any rule of law or equity to the
contrary notwithstanding; and the Landlord may seize
and sell such goods, chattels and equipment of the
Tenant as are in the Leased Premises or at any place
to which the Tenant or any other person may have
removed then in the same manner as if they had
remained and been distrained upon the Leased
Premises; and such sale may be effected in the
discretion of the Landlord either by public auction
or by private treaty, and either in bulk or by
individual item, or partly by one means and partly by
another, all as the Landlord in its entire discretion
may decide.
ARTICLE 15
MISCELLANEOUS
The Landlord and Tenant further covenant and agree as follows:
Notices
15.01 All notices, demands, requests, consents, approvals and other
instruments required or permitted to be given pursuant to the terms of this
Lease shall be in writing and shall be deemed to have been properly given if
personally served, sent by registered mail or certified mail (postage
prepaid with return receipt requested) or sent by telegram with report of
delivery to:
The Landlord at: SUN LIFE ASSURANCE COMPANY OF CANADA
#302, 190 Attwall Drive
Etobicoke, Ontario N9W XXXX
The Tenant at: ARCHITEL SYSTEMS CORPORATION
190 Attwell, Drive, 2nd floor
Etobicoke, Ontario N9W XXXX
Provided, however, that such addresses may be changed upon five (5) business
days written notice thereof, similarly given, to the other party.
The date of receipt of any such notice, demand, request, consent, approval or
other instrument shall be demand to be as follows:
(a) In the case of personal service, the date of
service;
(b) In the case of registered or certified mail, the
fifth (5th) business day following the date of
delivery to the Post Office, provided, however, that
in the event of an interruption of normal mail
service, service shall be effected by personal
delivery.
(c) In the case of telegram, the business day next
following the day of sending.
Entire Agreement
15.02 The Tenant acknowledges that there are not covenants, representations,
warranties, agreements or conditions expressed or implied relating to this Lease
or the Leased Premises save as expressly set out in this Lease. This Lease may
not be modified except by an agreement in writing executed by the Landlord and
the Tenant.
Area Determination
15.03 In the event that any calculation or determination by the Landlord of
the Rentable Area or Gross Area of any premises (including the Leased Premises)
of the Building is disputed or called into question, it shall be calculated or
determined by the Landlord's Architect, whose certification shall be conclusive.
Successors and Assigns Interpretation
15.04 This Lease and everything herein contained shall enure to the benefit
of and be binding upon the successors and assigns of the Landlord and the heirs,
executors, administrators, successors and permitted assigns of the Tenant.
References to the Tenant shall be read with such changes in gender as may be
appropriate, depending on whether the Tenant is a male or female person or a
firm or corporation, and if the Tenant is more than one person or entity, the
covenants of the Tenant shall be deemed joint and several.
Force Majeure
15.05 Save and except for the obligations of the Tenant as set forth in
this Lease to pay rent, additional rent, increased rent and other monies to the
Landlord, if either party shall fail to meet its obligations hereunder within
the time prescribed, and such failure shall be caused or materially contributed
to by force majeure (and for the purpose of this Lease, force majeure shall mean
any acts of God, strikes, lockouts, or other industrial disturbances, acts of
the Queen's enemies, sabotage, war, blockades, insurrections, riots, epidemics,
13
lightning, earthquakes, storms, fires, washouts, nuclear and radiation activity
or fallout, arrests, and restraints of rulers and people, civil disturbances,
explosions, breakage of or accident to machinery, inability to obtain materials
or equipment, any legislative, administrative or judicial action which has been
resisted in good faith by all reasonable legal means, any act, omission or
event whether of the kind enumerated or otherwise not within the control of such
party, and which by the exercise of due diligence such party could not have
prevented (but lack of funds on the part of such party shall be deemed not to
be a force majeure)), such failure shall be deemed not to be a breach of the
obligations of such party hereunder but such party shall use reasonable
diligence to put itself in a position to carry out its obligations hereunder.
Waiver
15.06 Failure of the Landlord to insist upon strict performance of any of
the covenants or conditions of this Lease or to exercise any right or option
herein contained shall not be construed as a waiver or relinquishment of any
such covenant, condition, right or option, but the same shall remain in full
force and effect. The Tenant undertakes and agrees, for itself and for any
person claiming to be a subtenant or assignee, that the acceptance by the
Landlord of any rent from any person other than the Tenant shall not be
construed as a recognition of any rights not herein expressly granted, or as a
waiver of any of the Landlord's rights or as an admission that such person is,
or as a consent that such person shall be deemed to be, a subtenant or assignee
of this Lease, irrespective of whether the Landlord or said person claims that
such person is a subtenant or assignee of this Lease. The Landlord may accept
rent from any person occupying the Leased Premises at any time without in any
way waiving any right under this Lease.
Governing Law, Covenants, Severability
15.07 This Lease shall be governed by and construed in accordance with the
laws of the province in which the Building is situate. 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 section 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.
Headings, Captions
15.08 The headings and captions appearing in this Lease have been inserted
for convenience of reference only and in no way define, limit or enlarge the
scope or meaning of this Lease or of any provision hereof.
Expropriation
15.09 If at any time during the Term of this Lease title is taken by the
right or exercise of condemnation or expropriation to the whole or a portion of
the Building (whether or not including the Leased Premises) the Landlord may, at
its option, give notice to the Tenant terminating this Lease on the date stated
in the said notice. Upon such termination, the Tenant shall immediately
surrender the Leased Premises and all its interest therein to the Landlord, and
the rent shall abate and be apportioned to the date of termination and the
Tenant shall forthwith pay to the Landlord the apportioned rent and all other
amounts which may be due to the Landlord up to the date of termination. The
Tenant shall have no claim upon the Landlord for the value of the unexpired
Term of this Lease. but the parties shall each be entitled to separately
advance their claims for compensation for the loss of their respective interests
in the Leased Premises and the parties shall be entitled to receive and retain
such compensation as may be awarded to each respectively.
Arbitration
15.10 That in the case of any dispute between the Landlord and the Tenant
during the Term hereof as to any matter which by the provisions hereof is
required to be determined by arbitration in accordance with the provisions of
this Section, the matter in dispute shall be referred to a single arbitrator
appointed by the parties for determination. If the parties cannot agree on a
single arbitrator, then upon the application of either party a Justice of
the superior court of the province in which the Building is situate shall
appoint an arbitrator whose sole determination shall be final. The arbitrator
shall be a disinterested person of recognized competence in the Real Estate
business in the city in which the Building is situate. The expense of such
arbitration shall be borne equally by the Landlord and the Tenant. Except as
otherwise provided herein the arbitration shall be conducted in accordance with
the provisions of the Arbitration Act of the Province in which the Building is
situate and any amendments thereto or successors to such statute which
provisions shall apply mutatis mutandis.
ARTICLE 16
DEFINITIONS
The Landlord and Tenant further covenant and agree as follows:
Definitions
16.01 In this Lease the following expressions shall have the following
meanings:
(a) "Landlord's Architect" means the independent
architect, or engineer or quantity surveyor selected by the Landlord
from time to time for the purposes of making determinations hereunder.
(b) The terms "Land" and "Building" have the
meanings set out on page 1 hereof.
(c) "Leased Premises" means that portion of the
Building shown outlined in red on the Plan attached as Schedule XXXX
hereto and described on page 1 hereof. The exterior face of the
Building and any space in the Leased Premises used for stairways or
passageways to other premises, stacks, shafts, pipes, conduits,
ducts or other building facilities, the heating, electrical,
plumbing, air conditioning and other systems in the Building and the
use thereof, as well as access thereto through the Leased Premises
for the purpose of use, operation, maintenance, replacement and
repair, are expressly excluded from the Leased Premises and reserved
to the Landlord.
(d) "Leasehold Improvements" means all fixtures,
Improvements, installations, alterations and additions from time to
time made, erected or installed by or on behalf of the Tenant with
the exception of trade fixtures and furniture and equipment not of
the nature of fixtures, and includes all wall-to-wall carpeting
(whether or not supplied by the Landlord), and drapes supplied by
the Landlord.
(e) "Term" means the term of this Lease set forth
in Section 2.01 and any extension thereof and any period of
permitted overholding.
(f) "Normal Business Hours" means the hours from
7:30 a.m. to 6:00 p.m., Monday to Friday, inclusive, of each week,
and the hours from 7:30 a.m. to 1:00 p.m., Saturdays, statutory
holidays excepted.
14
(g) "Rentable Area" in the case of a whole floor shall
mean the area within the outside walls and shall be computed by
measuring to the glass line (that is, the inside surface of the
windows) on the outer Building walls without deduction for columns
and projections necessary to the Building, but shall not include
stairs and elevator shafts (supplied by the Landlord for use in
common with other tenants), flues, stacks, pipe shafts or vertical
ducts with their enclosing walls.
(h) "Rentable Area" In the case of a part of a floor
shall mean all the area occupied and shall be computed by measuring
from the glass line (that is, the inside surface of the windows) on
the outer building walls to the office side of corridors or other
permanent partitions and to the centre of partitions which separate
the area occupied from adjoining Rentable Areas without deduction
for columns and projections necessary to the Building but shall not
include stairs and elevator shafts (supplied by the Landlord for use
in common with other Tenants) flues, stacks, pipe shafts or vertical
ducts with their enclosing walls within the area occupied or
janitorial or electrical or telephone closets not for the exclusive
use of the Tenant.
(i) "Service Area" shall mean the area of corridors,
fire protection cross-over corridors, elevator lobbies, washrooms,
air-conditioning rooms, fan rooms, Janitor's closets, telephone and
electrical closets and other closets serving the Leased Premises in
common with other premises.
(j) "Gross Area" of any Leased Premises means:
(i) In the case of Leased Premises consisting of
a whole floor or whole floors the Rentable Area thereof, and
(ii) In the case of Leased Premises consisting of
or including only part of a floor of the Building,
the Rentable Area thereof plus an amount equal to
the product of (a) the fraction having as its
numerator the Rentable Area contained in the Leased
Premises on such floor and as its denominator the
sum of the Rentable Areas of such floor, multiplied
by (b) the total area in square feet of Service
Area, if any, on such floor.
(k) "Total Rentable Area" shall mean the total
Rentable Area of the Building whether rented or net, calculated as
if the Building were entirely occupied by tenants renting whole
floors. The lobby and entrances on the ground floor and subservice
floors used in common by tenants, mechanical equipment areas and
areas rented or to be rented for automobile parking or for storage,
shall be excluded from the foregoing calculations. The calculation
of the Total Rentable Area, whether rented or not, shall be
determined by the Landlord's Architect upon completion of the
Building and shall be adjusted from time to time to give effect to
any structural or fractional change affecting the same.
(l) "Additional Services" means the services and
supervision supplied by the Landlord and referred to in Section
8.06 or in any other provision hereof as Additional Services, and
any other services which from time to time: the Landlord supplies to
the Tenant and which are additional to the janitor and cleaning and
other services which the Landlord has agreed to supply pursuant to
the provisions of this Lease and to like provisions of other Leases
of the Building or may elect to supply to be included within the
standard level of services available to Tenants generally and
includes janitor and cleaning services in addition to those normally
supplied, the provision of labour and supervision in connection with
deliveries, supervision in connection with the moving*** of any
furniture or equipment of any tenant and the making of any repairs
or alterations by any tenant and maintenance or other services not
normally furnished to tenants generally.
(m) "Cost of Additional Services" shall mean in the
case of Additional Services provided by the Landlord a reasonable
charge made therefor by the Landlord which shall not exceed the cost
of obtaining such services from independent contractors and in the
case of Additional Services provided by Independent contractors the
Landlord's total cost of providing Additional Services to the Tenant
including the cost of all labour (including salaries, wages and
fringe benefits) and materials and other direct expenses incurred,
the cost of supervision and other indirect expanses capable of being
allocated thereto (such allocation to be made upon a reasonable
basis) and all other out-of-pocket expenses made in connection
therewith including amounts paid to independent contractors, plus
the Landlord's then current administration fee. A report of the
Landlord's accountant (who may be the Landlord's internal auditor or
accountant) as to the amount of any Cost of Additional Services
shall be conclusive.
(n) "Taxes" means all taxes, rates duties, levies
and assessments whatsoever, whether municipal, provincial, federal
or otherwise, levied, imposed or assessed against the Building, the
Land and any Leasehold Improvements or any of them, or upon the
Landlord in respect thereof or from time to time levied, imposed or
assessed in Lieu thereof, including those levied, imposed or
assessed for education, schools and local improvements, and
including all costs and expenses (including legal and other
professional fees and interest and penalties on deferred payments)
incurred by the Landlord in good faith in contesting, resisting or
appealing any taxes, rates, duties, levies or assessments, but
excluding taxes and license fees in respect of any business carried
on by tenants and occupants of the Building (including the Landlord)
and income or profits taxes upon the income of the Landlord to the
extent such taxes are not levied in lieu of taxes, rates, duties,
levies and assessments against the Building, the Land or Leaseshold
improvements or upon the Landlord in respect thereof and shall also
include any and all taxes which may in the future be levied in lieu
of Taxes as hereinbefore defined.
(o) "Operating Costs" means the total of all expenses,
costs and outlays of every nature incurred in the complete
maintenance, repair, operation and management of the Building and
the Land and a reasonable proportion as determined by the Landlord
from time to time of all expenses incurred by or on behalf of
tenants in the Building with whom the Landlord may from time to time
have agreements whereby in respect of their premises such tenants
perform any cleaning, maintenance or other work or services usually
performed by the Landlord, and which expenses if directly incurred
by the Landlord would have been included in Operating Costs. Without
limiting the generality of the foregoing, Operating Costs shall
include (but subject to certain deductions as hereinafter provided):
(i) the cost of providing complete cleaning, Janitor,
supervisory and maintenance services;
(ii) the cost of operating elevators;
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(iii) the cost of heating, cooling and ventilating all
space including both rentable and non-rentable
areas;
(iv) the cost of providing hot and cold water,
electric light and power, telephone, sewer, gas
and other utilities and services to both rentable
and non-rentable areas;
(v) the cost of all repairs including repairs to
the Building, equipment, or services (including
elevators);
(vi) the cost of window cleaning;
(vii) the cost of providing security and supervision;
(viii) the costs of all insurance for or against
liability, fire, extended perils, loss
of rental, elevator liability, plate glass,
boiler, sprinklers leakage and all such other
casualties and losses as the Landlord may elect to
insure against; and if the Landlord shall elect in
whole or in part to self-insure, the amount of
reasonable contingency reserves not exceeding the
amount of premiums which would otherwise have been
incurred in respect of the risks undertaken;
(ix) accounting costs incurred in connection with the
maintenance, repair, operation or management
including computations required for the imposition
of charges to tenants and audit charges required
to be incurred for the determination of any costs
hereunder;
(x) the reasonable rental value (having regard to the
rentals prevailing from time to time for similar
space) of space utilized by the Landlord in
connection with the maintenance, repair, operation
or management of the Building and the Land;
(xi) the amount of all salaries, wages and fringe
benefits paid to employees engaged in the
maintenance, repair, operation or management of
the Building and the Land;
(xii) amounts paid to independent contractors for any
services in connection with such maintenance,
repair, operation or management;
(xiii) the cost of direct supervision and of management
and all other indirect expenses to the extent
allocable to the maintenance, repair or operation
of the Building and the Land;
(xiv) the cost of any management fees or management agent
fees (if any for the Building), (or of the
Landlord if it elects to manage the Building
itself, in an amount not exceeding four percent
(4%) of the gross rentals received or receivable
from the Building);
(xv) Depreciation of the costs of machinery, equipment,
facilities, systems, and property (individually
and collectively in this clause called
"machinery") installed in or used in connection
with the Building (except to the extent that the
costs are charged fully to income account in the
Landlord's tax year in which they are incurred) if
a principal purpose or intention of such
installation or use is to conserve energy or to
reduce the cost of other items included in
Operating Costs and interest on the undepreciated
portion of the original cost of such machinery,
payable monthly, from the date on which the
relevant cost was incurred, at an annual rate of
interest that is two percentage points above the
Prime Rate in effect on the date on which the
relevant cost was incurred, (the rate of interest
to be applied to the undepreciated portion of the
original cost, in each case, to be adjusted, as
long as a rate is required, every five years, on
the anniversary date of the acquisition of the
relevant machinery, to the annual rate of interest
that is two percentage points above the Prime Rate
then in effect); the depreciation costs and
interest charged under this clause in respect of
machinery installed or used to conserve energy or
reduce the cost of other items included in
Operating Costs may be equal to, but in no event
shall exceed in any year the savings resulting
from such installation or use, estimated by the
Landlord, acting reasonably;
(xvi) cost of services by and salaries for elevator
operators, porters, sidewalk shovellers, window
cleaners, janitors, cleaners, dusters, handymen,
watchmen, commissioners, caretakers, security
personnel, carpenters, engineers, firemen,
mechanics, electricians, plumbers, and other
persons or firms engaged in the operating,
maintenance and repair of the Building, or the
heating, air conditioning, ventilating, plumbing,
electrical and elevator systems in the Building
and superintendents, and accounting and clerical
staff attached to the Building superintendent's or
manager's office;
(xvii) uniforms of employees and agents;
(xviii) supplies and equipment used in connection with the
repair, maintenance, management, caretaking and
operating of the Building (including without
limitation straight-line amortization based on
tax-deductible depreciation allowances of
capitalized cleaning equipment used in the
Building);
(xix) supplies and materials for washrooms, and other
common facilities;
(xx) workers' compensation costs, unemployment insurance
premiums, pension plan contributions, health,
accident and group life insurance for employees,
managers and superintendents employed by
the Landlord in connection with the Building;
(xxi) servicing and inspection costs for elevators,
electrical distribution systems and mechanical,
heating, ventilating and air conditioning systems;
(xxii) parking area staff and maintenance costs;
16
(xxiii) snow and ice removal and related costs;
(xxiv) sales and excise taxes on goods and services
provided by the Landlord in the management,
operation, maintenance and repair of the Building;
(xxv) costs of stationery supplies and other materials
required for the normal operation of the
superintendent's or manager's office; and
(xxvi) all other direct and indirect costs and expenses
whatsoever to the extent allocable to the
operating, maintaining, managing or repairing of
the said Lands, the Building or any appurtenances
thereto.
Notwithstanding any of the foregoing, it is understood and agreed
that Operating Costs for any period are to be calculated as if the Building
were fully occupied during each period. Therefore, in addition to expenses,
costs and outlays actually incurred in the maintenance, repair, operation and
management of the Building, the Landlord may include in the calculation and
estimation of Operating Costs, such additional amounts that in the Landlord's
estimation would have been incurred had all rentable areas in the Building been
fully occupied during the period in question. However, in no event shall the
Tenant be required to pay more on account of its proportionate share of
Operating Costs than it would pay if the Building were fully occupied.
Operating Costs shall exclude (except as herein otherwise
provided) Taxes, debt service, depreciation, expenses properly chargeable to
capital account, costs determined by the Landlord from time to time to be
fairly allocable to the correction of construction faults or initial
maladjustments in operating equipment, all management cost not allocable to the
actual maintenance, repair or operation of the Building (such as in connection
with leasing and rental advertising), work performed in connection with the
initial construction of the Building and the Leased Premises, changes for
tenants, capital cost of additions, improvements and modernizations to the
Building subsequent to date of original construction, advertising and promotion
expenses, and expenses of redecorating and renovating space for new tenants.
In computing Operating Costs there shall be credited as a
deduction the amounts of proceeds of insurance relating to insured Damage and
other damage actually recovered by the Landlord (or if the Landlord has
self-insured, a corresponding application of reserves) applicable to damage, and
also electricity and light bulb, tube and ballast replacement costs and
insurance premiums that are directly payable by any tenants, in each case to
the extent that the cost thereof was included therein. Any expenses not
directly incurred by the Landlord but which are included in Operating Costs may
be estimated by the Landlord on whatever reasonable basis the Landlord may
select if and to the extent that the Landlord cannot ascertain the actual
amount of such expenses from the tenants who incurred them. Any report of the
Landlord's accountant (who may be the Landlord's internal auditor or
accountant) for such purpose shall be conclusive as to the amount of Operating
Costs for any period to which such report relates.
(p) "Common Costs" means the aggregate of the Taxes plus the
Operating Costs for or incurred in a twelve (12) month
period.
(q) "Base Common Costs" means $0.00 per square foot of the Total
Rentable Area.
(r) "Current Common Costs" in respect of any twelve (12) month
period means an amount equal to the total Common Costs for
such twelve (12) month period divided by the Total Rentable
Area.
(s) "Common Costs Escalation" In any twelve (12) month period
means an amount equal to:
(i) the amount by which the Current Common Costs for such
period exceed the Base Common Costs multiplied by,
(ii) The Gross Area of the Leased Premises.
(t) "Insured Damage" means that part of any damage occurring to
the Leased Premises to the extent to which the cost of repair
is actually recoverable by the Landlord under a policy of
insurance in respect of fire and other perils from time to
time effected by the Landlord.
(u) "Prime Rate" means that rate of interest charged and
published from time to time by the main branch in the city
in which the Building is situate, of the Landlord's bank, as
its most favourable rate of interest to its most
credit-worthy commercial customers and commonly known as its
Prime Rate.
17
ARTICLE 17
SPECIAL PROVISIONS
Option to Renew
17.01 The Landlord and Tenant further covenant and agree
that if the Tenant duly pays the rent and other sums payable
hereunder and performs each and every one of the covenants,
terms agreements and conditions herein contained and on the
part of the Tenant to be paid and performed, in accordance
with this Lease, then the Tenant shall have the Option of
Renewing this Lease by notice in writing given to the
Landlord at least Six (6) months prior to the expiry of the
Term, for an additional term of Sixty (60) months on the
some terms and conditions as set forth in this Lease, save
and except that there shall be no further right of renewal
and except that the Basic Rent reserved during the renewal
term shall be the greater of:
(a) the market rent for the Premises as at ninety (90) days
immediately prior to the expiry of the Term, to be determined
by agreement between the parties or as hereinafter provided;
and,
(b) the basic rent applicable during the last twelve (12) month
period of the Term of this Lease, in the event that the
parties are unable to agree as to the said market rent on or
before sixty (60) days immediately prior to the expiry of the
Term, then the said market rent shall be fixed by arbitration
by a single arbitrator appointed by the parties. If the
parties cannot agree on a single arbitrator, then, upon the
application of either party, a Justice of the superior court
of the Province in which the premises are situate shall
appoint an arbitrator whose sole determination shall be
final. The arbitrator shall be a disinterested person of
recognized competence in the real estate business in the City
in which the Premises are situate. The expense of such
arbitration shall be borne equally by the Landlord and the
Tenant. Except as otherwise provided herein the arbitration
shall be conducted in accordance with the provisions of the
Arbitration Act of the Province in which the Premises are
situate and any amendments thereto or successors to such
statute which provisions shall apply mutatis mutandis.
Failing exercise of the said Option of Renewing within the
time and in the manner as aforesaid the said option shall be
null and void.
Free Rent
17.02 Notwithstanding the lease commencement date of
February 1, 1995 the Tenant shall not be obliged to pay basic
rent for the period February 1, 1996 to May 31, 1996. The
Tenant shall be responsible for the payment of additional
rent throughout the entire lease term.
Leasehold Improvements
17.03 The Landlord shall provide, at no cost to the Tenant,
the existing Leasehold Improvements in the Leased Premises
including partitions, doors, carpets, plumbing, lighting, air
conditioning and electrical outlets. The Landlord shall
provide the Tenant with a Five Dollars ($5.00) per square
foot on the rentable area of the Leased Premises moving
allowance payable upon occupancy and signing of this Lease,
and commencement of the term.
Early Occupancy
17.04 Provided the Tenant has executed the Lease document,
the Tenant shall be allowed to occupy the Premises as of
November 1, 1994 free of gross rent until January 31, 1995.
Save and except for the payment of rent, all other terms and
conditions of the Lease shall be in full force and effect.
Landlord's Work
17.05 The space shall be provided to the Tenant in an "as is"
condition, save and except that the Landlord, at its expense,
shall repaint and re-carpet the area of approximately
1,550 square feet as shown on Schedule "D" with paint and
carpet of equal quality to the remainder of the Leased
Premises. The Landlord shall endeavour to match the existing
colours as closely as reasonably possible.
Parking
17.06 The Landlord will provide fifteen (15) unassigned
outdoor parking spaces free of charge, but subject to all
rules and regulations that govern the parking. The Landlord
shall provide an extra five (5) spaces on the same terms and
conditions, save and except that these five (5) spaces shall
be subject to availability at Landlord's discretion.
Termination
17.07 Provided the Tenant is not in default of the Lease, the
Tenant shall have the right to terminate this Lease after
completion of the fifth (5th) year of the term provided
twelve (12) months prior written notice has been given to the
Landlord. The month prior to the termination date, the Tenant
shall pay to the Landlord Eight ($8.00) Dollars per square
foot. The Tenant shall also have the right to terminate the
lease at the end of the sixth, seventh, eighth and nine years
under the same terms and conditions as above with the
following penalties:
End of year 6 - $6.40 per square foot
End of year 7 - $4.80 per square foot
End of year 8 - $3.20 per square foot
End of year 9 - $1.60 per square foot.
17.08 Schedule "E" shall form part of this Lease.
ARTICLE 18
ACCEPTANCE
Acceptance
18.01 The Tenant hereby accepts this Lease of the within
described lands and premises to be held by it as Tenant and
subject to the conditions, restrictions and covenants above
set forth.
IN WITNESS WHEREOF the Landlord and Tenant have executed this
Lease the day and year first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF: SUN LIFE ASSURANCE COMPANY OF CANADA
Per: /s/xxxx
----------------------------
Per: /s/xxxx
----------------------------
ARCHITEL SYSTEMS CORPORATION
Per: /s/xxxx
----------------------------
Tenant - Title
Per: /s/xxxx
----------------------------
Tenant - Title
SCHEDULE "A"
------------
ALL AND SINGULAR that certain parcel or tract of land and premises situate
lying and being in the Borough of Etobicoke, in the Municipality of
Metropolitan Toronto, and being composed of those parts of Lot 22 in the second
concession fronting the Humber and those parts of Lot 22 and 23 in the third
concession fronting the Humber and those parts of the road allowance between
concession 2 and 3 fronting the Humber, designated as Parts 5 and 7, on a plan
of reference filed in the Land Registry Office for the Land Registry Division
of Toronto Boroughs (No. 64) as No. 64R-6352.
/s/ XXXX
SCHEDULE "B"
[FLOOR PLAN GRAPHIC APPEARS HERE]
THIS IS SCHEDULE "C" attached to and forming part of the Lease made between Sun
Life Assurance Company of Canada as Landlord, and _____________________________
ARCHITEL SYSTEMS CORPORATION
- -------------------------------------------------------------------------------
as Tenant and dated the 24th day of August 1994 .
---------------- ----------------------------- ---
RULES AND REGULATIONS
1. The Landlord shall have the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best
for the benefit of the tenants generally. No tenant shall invite to the Leased
Premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of the entrances,
corridors, elevators and facilities of the Building by other tenants.
2. The sidewalks, driveways, entrances, vestibules, passages, corridors,
halls, elevators and stairways shall not be encumbered or obstructed by tenants
or tenants agents, servants, employees, licensees or invitees, or be used by
them for any purpose other than for ingress to and egress from the Leased
Premises. Landlord reserves the right to restrict and regulate the use of
aforementioned public areas of the Building by tenants and tenants agents,
employees, servants, licensees and invitees and by persons making deliveries to
tenants including, but not limited to the right to allocate certain elevator or
elevators, if any, and the reasonable hours of use thereof for delivery
service), and the right to designate which Building entrance or entrances shall
be used by persons making deliveries in the Building.
3. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens other than those
furnished by Landlord shall be attached to, or hung in, or used in connection
with, any window or door of the Leased Premises, without the prior written
consent of Landlord. Such curtains, blinds, shades, screens or other fixtures
must be of a quality, type, design and colour, and attached in the manner
approved by Landlord.
4. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any window or part of the
outside or inside of the Leased Premises or the Building without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant. Landlord may remove same without any liability, and may charge the
expense incurred by such removal to such tenant, interior signs on doors shall
be inscribed, painted, or affixed for tenants by Landlord or by sign painters,
first approved by the Landlord, at the expense of tenants and shall be of a
size, colour, and style acceptable to Landlord.
5. The windows and doors, and, if any, the sashes, sash doors, and
skylights, that reflect or admit light and air into the halls, passageways, or
other public places in the Building shall not be covered or obstructed by
tenants, nor shall any bottles, parcels, files, papers or other articles he
placed on the windowsills.
6. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors,
or vestibules without the prior written consent of Landlord.
7. The toilets, urinals, sinks and other water apparatus shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown therein.
Any damage resulting by misuse shall be borne by the tenants by whom or by
whose agents, servants, employees, customers or invitees the same was caused.
Tenants shall not let the water run unless it is in actual use, and shall not
deface or damage any part of the Building, nor drive nails, spikes, hooks, or
screws into the walls or woodwork of the Building.
8. Tenants shall not mark, paint, drill into, or in any way deface any
part of the Leased Premises or the Building. No boring, cutting or stringing of
wires shall be permitted except with the prior written consent of Landlord and
as Landlord may direct. Only contractors approved in writing by Landlord may be
employed by tenants for making repairs, changes or any improvements to the
Leased Premises. Tenants shall not (without Landlord's prior consent) lay floor
coverings other than unaffixed rugs, so that the same shall come in direct
contact with the floor of the Leased Premises, and, if wall to wall carpeting,
linoleum or other similar floor coverings other than the Building Standard
carpet are desired to be used and such use is approved by Landlord, and if such
floor coverings are placed or to be placed over tile flooring then an
interlining of builder's deadening felt shall be first affixed to the floor, by
a paste or other material soluble in water, the use of cement or similar
adhesive material being expressly prohibited. Metal cabinets shall be set on a
noncorrosive pad wherever the floors are tile. In those portions of the Leased
Premises where the Landlord has provided carpeting, whether directly or
indirectly, the Tenant shall install at its own expense protective padding
under all furniture not equipped with carpet casters.
9. No bicycles, vehicles or animals or birds of any kind shall be brought
into or kept in or about the Building or the Leased Premises excepting that
those vehicles so authorized by the Landlord may enter and be kept in the
Building's parking facilities (if any).
10. No space in the Building shall be used for manufacturing or for
lodging, sleeping, or any immoral or illegal purposes. No space shall be used
for the storage of merchandise or for the sale of merchandise, goods, or
property, and no auction sales shall be made, by tenants without prior written
consent of Landlord.
11. Tenants shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or
neighbouring buildings or premises or those having business with them whether
by the use of any musical instrument, radio, television, talking machine,
unmusical noise, whistling, singing or in any other way. Tenants shall not
throw anything out of the doors, windows, or skylights, if any, or down the
passageways, stairs or elevator shafts not sweep anything into the corridors,
halfways or stairs of the Building.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by tenants, nor shall any changes whatsoever be made to
existing locks or the mechanics thereof except by the Landlord, at its option.
Tenants shall not permit any duplicate keys to be made, but additional keys as
reasonably required shall be supplied by the Landlord when requested by the
tenant in writing and such keys shall be paid for by the tenant, and upon
termination of tenant's Lease, the tenant shall surrender to the Landlord all
keys of the Leased Premises and other part or parts of the Building.
/s/ XXXX
13. The tenants and their agents, servants, contractors, invitees or
employees, shall not bring in or take out, position, construct. Install or move
any safXXXXsiness machine or other heavy office equipment without first
obtaining the consent in writing of the Landlord. In giving such consent, the
Landlord shall have the right in its sole discretion, to prescribe the weight
permitted and the position thereof, and the use and design of planks, skids or
platforms to distribute the weight thereof. All damage done to the Building by
moving or using any such heavy equipment or other office equipment or furniture
shall be repaired at the expense of the tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only outside of
Normal Business Hours or at any other time consented to by the Landlord and the
persons employed to move the same in and out of the Building must be acceptable
to the Landlord. Safes and other heavy office equipment will be moved through
the halls and corridors only upon steel bearing plates. No freight or bulky
matter of any description will be received into the Building or carried in the
elevators, except during hours approved by the Landlord.
14. Tenants shall not occupy or permit any portion of the Leased Premises
to be occupied as an office for a public stenographer or typist, or, for the
possession, storage, manufacture, or sale of narcotics or drugs, or, except as
incidental to tenant's main business, as an employment bureau.
15. Tenants shall not use the name of the Building or the owner in any
advertising without the express consent in writing of Landlord. Landlord shall
have the right to prohibit any advertising by any tenant which, in any way,
tends to Impair the reputation of the Building or its desirability as a
building for offices, and upon written notice from Landlord, tenants shall
refrain from or discontinue such advertising.
16. All entrance doors in the demised premises shall be left locked and
all windows shall be left closed by tenants when the Leased Premises are not in
use.
17. Landlord shall be in no way responsible to any tenant for loss of
property from the Leased Premises, however occurring, or for damage done to the
furniture or other effects of any tenant by Landlord's agents, janitors,
cleaners, employees, or contractors doing work in the Leased Premises. The
tenants shall permit window cleaners to clean the windows of the Leased
Premises during Normal Business Hours.
18. The requirements of tenants will be attended to only upon application
to the Building manager or such other authorized representative as the Landlord
may designate in writing. Landlord's employees shall not perform any work or do
anything outside of their regular duties, unless under specific instructions
from the office of the Landlord, from the Building manager or other
representatives as aforesaid.
19. Canvassing, soliciting and peddling in the Building are prohibited,
and tenants shall cooperate to prevent the same.
20. Any hand trucks, carryalls, or similar appliances used in the
Building shall be equipped with rubber tires, side guards and such other
safeguards as Landlord shall require.
21. Without first obtaining Landlord's written permission, tenants shall
not install, attach, or bring into the Leased Premises any equipment (other
than normal office equipment such as electric typewriters, calculators, and the
like) or any instrument, duct, refrigerator, air conditioner, water cooler or
any other appliance requiring the use of gas, electric current or water. Any
breach of this rule will entitle the Landlord at the tenant's expense to enter
the Leased Premises and remove whatever the tenant may have so installed,
attached, or brought in.
22. Landlord reserves the right to exclude from the Building outside of
Normal Business Hours and during all hours on Saturdays all persons not
authorized by a tenant in writing, by pass, or otherwise, to have access to the
Building and the Leased Premises. Each tenant shall be responsible for all
persons authorized to have access to the Building and shall be liable to
Landlord for all of their acts while in the Building. When security service is
in effect, entrance to the Building, deliveries, and exits shall be made via
designated entrances and the Landlord may require all persons to sign a
register on entering and leaving the Building.
23. Tenant shall at all times keep all drapes, blinds or curtains
adjusted to block the direct rays of the sun in order to avoid overloading the
air conditioning systems.
24. Neither tenants nor their servants, employees, agents, visitors, or
licensees shall at any time bring or keep upon the Leased Premises any
inflammable, combustible or explosive fluid, chemical or substance, nor do nor
permit to be done anything in conflict with any insurance policy which may or
might be in force upon the Building or any part thereof or with the laws
relating to fires, or with the regulations of the Fire Department or the Health
Department, or with any of the rules, regulations or ordinances of the City in
which the Leased Premises are located, or of any other duly constituted
authority.
25. Tenants shall not, without first obtaining Landlord's prior written
approval, do any cooking, conduct any restaurant, luncheanette, or cafeteria
for the sale or service of food or beverages to its employees or to others, or
cause or permit any odours of cooking or other processes or any unusual or
objectionable odours to emanate from the Leased Premises. Tenants shall not,
without first obtaining Landlord's prior written approval, install or permit
the installation or use of any food, beverage, cigarette, cigar, or stamp
dispensing machine; or permit the delivery of any food or beverage to the
Leased Premises, except by such persons delivering the same as shall be
approved by Landlord. No food or beverages shall be carried in the public halls
or elevators except in closed containers.
26. Lists of automobile licence numbers of people working in the Building
and the names of people who normally work off-hours may be required by
Landlord, who may also require tenants' employees to display a card or sticker
as a prerequisite to admission to the parking facility (if any).
27. The Landlord reserves the right to promulgate, rescind, alter or
waive any rules or regulations at any time prescribed for the Building when it
is necessary, desirable or proper for its best interest and in the opinion of
the Landlord, for the best interests of the tenants.
/s/ XXXX
2
28. The Landlord may publish from time to time emergency fire regulations
and evacuation procedures in consultation with the applicable municipal
authorities. Each tenant will appoint a premises warden (wardens for
multi-floor users) who will be responsible for liaison with building management
in all emergency matters and who will be responsible for instructing employees
of the tenant in emergency matters.
29. The tenants shall promptly notify the Landlord of all requests by any
taxing authority for information relating to the Leased Premises (including
fixtures, improvements, or machinery and equipment therein) or the tenant's
occupation or use thereof and any such information to be given by the tenant to
such taxing authority shall be forwarded by the tenant to the Landlord for
delivery to such taxing authority.
30. If any apparatus used or installed by a tenant requires a permit as a
condition for its installation, the tenant must file a copy of such permit with
Landlord.
31. Tenants shall be responsible for the cleaning of any drapes and/or
curtains that may be installed in their Leased Premises, including those
installed by the Landlord.
/s/ XXXX
SCHEDULE "D"
[FLOOR PLAN GRAPHIC APPEARS HERE]
SCHEDULE "E"
ADDITIONAL PROVISIONS
Notwithstanding any other provision of the Lease or of the Rules and Regulations
(a) there shall be excluded from Operating Costs
(i) overhead and administrative costs and expenses in
excess of 15% of the Landlord's operating costs
(excluding realty taxes, insurance premiums,
depreciation and interest),
(ii) costs or expenses arising from or occasioned by the
act, default or negligence of any person other than
the Tenant,
(iii) any principal, interest or other carrying charges or
mortgage payments or other financing in respect of the
Building and costs of administration auditing and
reporting associated with the Landlord's mortgages,
(iv) costs or expenses incurred with respect to any matter
for which the Landlord has agreed to Indemnify the
Tenant under the Lease and costs which are expressly
set out in the Lease as the obligation of the
Landlord,
(v) any costs or expenses to the extent that such costs or
expenses are attributable to any other leasable
premises or incurred to satisfy the requirements of
any other tenant,
(vi) costs and expenses relating to the leasing of space or
premises in the Building including leasing or
commissions,
(vii) all fines, suits, claims, demands, actions, costs,
charges and expenses of any kind or nature for which
the Landlord is or may become liable by reason of any
breach, violation or non-performance by the
Landlord or those for whom the Landlord is in law
responsible of any covenants, terms or provisions
contained in the Lease or by reason of any negligent
act or omission to act on the part of the Landlord
or those for whom it is in law responsible,
(viii) any and all costs incurred in enforcing or remedying
the obligations of other tenants of the Building, and
(ix) any and all costs of performing the Landlord's Work
in connection with the original construction of the
Building,
and there shall be deducted from Operating Costs
(A) the amounts or proceeds of insurance relating to
damage received by the Landlord applicable to damage
the cost of repair of which was included in Operating
Cost,
(B) all other recoveries from the Tenant and other tenant
applicable to expenses included in Operating Cost
(excluding monies paid by any tenant with respect to
Operating Cost itself, or contributions by any other
tenant pursuant to comparable provisions of any
other Building Lease,
(C) any amounts received by the Landlord from any
contractor, sub-contracts, supplier of materials or
other person pursuant to any legal or contractual
warranty in connection with any construction,
installation, renovation, repair or replacement work
relating to the Building.
(b) there shall be excluded from the Tenant's repair obligations under the
Lease:
(i) reasonable wear and tear,
(ii) maintenance, repairs or replacements necessitated due
to the negligent or wilful acts of omissions of the
Landlord or those for whom it is in law responsible,
(iii) maintenance, repairs or replacements necessitated due
to structural defects or weaknesses or improper or
faulty workmanship, construction, design or materials,
(iv) any repair or replacement whose cost is considered to
be a capital expense as determined by Landlord's
Accountants,
The Landlord covenants to repair, replace and maintain at its own
cost the structural elements of the Premises and any other item
which is not the Tenant's obligation under the Lease. The Landlord
covenants to repair, replace and maintain the heating, ventilating
and air-conditioning, plumbing and furnace systems contained within
or serving the Premises. The Landlord warrants that the heating
system ,air-conditioning system, ventilating system, lighting,
electrical installations, plumbing, furnace and other mechanical
systems (including shipping doors and building hardware) are in good
working order as at the commencement date of the Term of the Lease.
(c) in addition to the other obligations of the Landlord contained in the
Lease, the Landlord shall maintain at the Tenant's expense and keep in
a good state of repair and in a clean, orderly and safe condition:
(i) the Building structure, roof and permanent building
walls,
(ii) equipment installed by the Landlord to heat, ventilate
and air-condition the Building,
(iii) elevators,
(iv) systems installed by the Landlord for the distribution
of utilities, and
(v) the common facilities and common use equipment,
-2-
(d) whenever in the Lease any matter requires the consent or approval of a
party, such consent or approval shall not be unreasonably withheld
and shall be deemed to have been given unless within sixty (60) days
after the request to it far such consent to approval such party shall
have failed to have notified the party requesting such consent or
approval of the reason for its refusal to give such consent or
approval.
(e) Except in cases of emergency the Landlord shall not at any time have
the right to enter the Premises for any purposes (including to view
the state of repair, shown the Premises to prospective purchasers or
to do work) except during normal business hours and upon 24 hours
written notice to the Tenant.
(f) The Landlord in the same manner and to the same extent as a prudent
and reputable owner and operator of the Building shall take and
maintain with respect to the Building a policy or policies if
insurance.
This Supplemental Lease Agreement made and entered into this 20/th/ day of
--------
April, 1999 by and between:
Progress Partners, LLC
as Landlord
And
Architel Systems (U.S.) Corporation
as Tenant
This Supplemental Lease Agreement shall modify the original Lease Agreement
between Progress Partners, LLC ("Landlord") and Architel Systems (U.S.)
Corporation dated February 22, 1999 in which certain real estate and premises
therein described and located at 7067 Old Madison Pike, NW, Suite 150,
Huntsville, Alabama 35806, were demised and leased by Lessor to Lessee.
It is the sole intent of the Supplemental Least Agreement to modify the original
Lease Agreement dated February 22, 1999 as follows:
As Tenant is desirous of Landlord furnishing electrical and gas utilities to the
premises. Landlord agrees to make payment on Tenant's behalf to Huntsville
Utilities and Tenant agrees to pay Landlord's coat of furnishing subject
utilities to the premises. Tenant agrees to paysum additional monthly escrow
deposit of $519.00 as an estimated payment towards Landlord's cost of utilities
to the premises. Tenant's monthly payments will be reconciled annually with
Landlord's actual cost of providing electrical and gas utilities services to the
premises. Any differences in Landlord's cost and Tenant's payment for electrical
and gas utilities, as determined by the annual reconciliation, will be treated
in the same manner as the expense items stated in Paragraph 2C. of the Lease
Agreement. Notwithstanding the above, Paragraph 10. of the Lease Agreement shall
remain in full farce and effect.
All other terms and conditions of the Least shall remain in effect and
unchanged.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Supplemental
Agreement as of the date written above.
WITNESS: LANDLORD:
---------
Progress Partners, LLC
/s/ [ILLEGIBLE]^^ BY:/s/ Alan C. Jenkins
- ----------------------------- -----------------------------
Alan C. Jenkins
Managing Member
STANDARD LEASE AGREEMENT Architel Systems Corporation
-----------------------------------------
7067 Old Madison Pike, Suite 150
-----------------------------------------
4,982 Rentable Sauan Feet 35758
-----------------------------------------
Lease Agreement
THIS LEASE AGREEMENT, made and entered into by and between Progress
--------
Partners, LLC hereinafter referred to as "Landlord", and Architel Systems (U.S.)
- ------------- -----------------------
Corporation hereinafter referred to as "Tenant".
- -----------
WITNESSETH:
1. Premises and Term. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof. Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of
Madison. State of AL more particularly described on EXHIBIT "A" attached
- ------- --
hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances, and immunities belonging to or in any way
pertaining to the premises. If the premises consist of the entire leasable area
of the building shown on EXHIBIT "A", then the premises include such entire
building with all land and improvements shown on EXHIBIT "A" (such entire
building, land and improvements being called the "Project").
TO HAVE AND TO HOLD the same for a term commencing on April 1, 1999 and
-------------
ending Sixty (60) months thereafter. Tenant acknowledges that it has inspected
---------
and accepts the premises, and specifically the buildings and improvements
compromising the same, in their present condition as suitable for the purpose
for which the premises are leased. Taking of possession by Tenant shall be
deemed conclusively to establish that said buildings and other improvements are
in good and satisfactory condition as of when possession was taken. Tenant
further acknowledges that no representations as to the repair of the premises,
nor promises to alter, remodel or improve the premises have been made by
Landlord, unless such are expressly act forth in this lease. If this lease is
executed before the premises become vacant or otherwise available and ready for
occupancy, or if any present tenant or occupant of the premises holds over, and
Landlord cannot acquire possession of the premises prior to the date above
recited as the commencement date of this lease, Landlord shall not be deemed to
be in default hereunder, and Tenant agrees to accept possession of the premises
at such time as Landlord is able to tender the same, which date shall
thenceforth be deemed the "commencement date", and Landlord hereby waives
payment of rent covering any period prior to the tendering of possession to
Tenant hereunder. After the commencement date Tenant shall, upon demand,
execute and deliver to Landlord a letter of acceptance of delivery of the
premises.
2. Base Rent and Security Deposit
A. Tenant agrees to pay to Landlord rent for the premises, in advance,
without demand, deduction or set off, for the entire term hereof at the rate of
See Paragraph 22. A-Rental Schedule Dollars ($See 22.A) per month. One such
- ----------------------------------- --------
monthly installment shall be due and payable on the date hereof and a like
monthly installment shall be due and payable on or before the first day of each
calendar month succeeding the commencement date recited above during the hereby
demised term, except that the rental payment for any fractional calendar month
at the commencement or end of the lease period shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
the sum of Zero a No/100 Dollars ($0,00), which sum shall be held by Landlord,
------------- -----
without obligation for interest, as security far the performance of Tenant's
covenants and obligations under this lease, it being expressly understood and
agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon the occurrence of any event
of default by Tenant. Landlord may, from time to time, without prejudice to and
other remedy provided herein or provided by law, use such fund to the extent
necessary to make good any arrears of rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by such
event of default; and Tenant shall pay to Landlord on demand the amount so
applied in order to restore the security deposit to its original amount.
Although the security deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant at
such time after termination of this lease that all of Tenant's obligations under
this lease have been fulfilled.
C. Tenant agrees to pay its proportionate share of (i) Taxes payable to
Landlord pursuant to Paragraph 4(A) below, (ii) maintenance costs and expenses
pursuant to Paragraphs 5(B) and 5(C) below, (iii) common utilities pursuant to
Paragraph 10 below, and (iv) Landlord's cost of carrying fire and extended
coverage insurance on the Project improvements pursuant to Paragraph 12(A)
below. During each month of the term of this lease. Tenant shall make a monthly
escrow deposit with Landlord equal to 1/12 of its proportionate share of all
such items which will be due and payable for that particular year. Tenant
authorizes Landlord to use the funds deposited with Landlord under this
Paragraph 2(C) to pay such costs. The initial monthly escrow payments are based
upon Tenant's proportionate share of the estimated amounts for the year in
question, and the monthly escrow payments are subject to increase or decrease as
determined by Landlord to reflect an accurate monthly escrow of Tenant's
estimated proportionate share of all such items. The escrow payment account of
Tenant shall be reconciled annually. If the Tenant's total escrow payments are
less than Tenant's actual proportionate share of all such items, Tenant shall
pay to Landlord upon demand the difference; if the total escrow payments of
Tenant are more that Tenant's actual proportionate share of all such items,
Landlord shall retain such excess and credit it to Tenant's next accruing escrow
account payments. Tenant's "proportionate share" shall be a fraction, the
numerator of which shall be the number of leasable square feet of floor space in
the premises and the denominator of which shall be the number of leasable square
feet of the entire building. The amount of the initial monthly escrow payments
are as follows:
(a) Initial Base Rent asset forth in Paragraph 2(A).
(See Paragraph 22.A-Rental Schedule)......................$ 4,047,00
-----------
(b) Initial Tax Escrow Payment................................$ 253,00
-----------
(c) Initial Insurance Escrow Payment..........................$ 21,00
-----------
(d) Initial Maintenance charges...............................$ 116,00
-----------
(e) Initial Utility charge (Water, Sewer, Outside Lighting)...$ 46,00
-----------
(f) Other (Waste Removal).....................................$ 21,00
-----------
Monthly Payment Total................................$ 4,504,00
-----------
3. Use. The demised premises shall be used only for the purpose of
receiving, storing, shipping and selling (other than retail) products, material8
and merchandise made and/or distributed by Taunt and for such other lawful
purposes as may be incidental thereto. Outside storage, including without
limitation, trucks and other vehicles, is prohibited without Landlord's prior
written consent. Tenant shall at its own cost and expense obtain any and all
licenses and permits necessary for any such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which the premises are situated or unreasonably interfere with their
use of their respective premises. Without Landlord's prior written consent.
Tenant shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly inflammable. Tenant will not permit the
premises to be used for any purpose or in any manner (including without
limitation any method of storage) which would render the insurance thereon void
or the insurance risk more hazardous or cause the State Board of Insurance or
other insurance authority to disallow any sprinkler credits. If any increase in
the fire and extended coverage insurance premiums paid by Landlord for the
building in which Tenant occupies space is caused by
page 1
Tenant's use and occupancy of the premises, or if Tenant vacates the premises
and causes an increase in such premiums, then Tenant shall pay as additional
rental the amount of such increase to Landlord.
4. Taxes
A. Landlord agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
including without limitation assessments due to deed restrictions and/or owner
associations (collectively referred to herein as "Taxes") which accrue
against the Project or any part thereof.
B. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments or governmental charges levied, assessed or imposed on real
estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents received
therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents for the present or any future
building or buildings on the premises, then all such taxes, assessments, levies
or charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Taxes" for the purpose hereof.
C. The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand from
time to time, as additional rent, the amount of Tenant's proportionate share of
the cost of such service.
D. Any payment to be made pursuant to this Paragraph 4 with respect to
the calendar year in which this lease commences or terminates shall be
prorated.
5. General Maintenance and Repair.
A. Landlord shall maintain the roof, foundation and the structural
soundness of the exterior walls of the building in good repair. The term
"walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries.
B. Landlord reserves the right to perform the paving and landscape
maintenance, exterior painting, common sewage line plumbing maintenance and
generally care for the grounds around the building, including but not limited
to, the moving of grass, care of shrubs, general landscaping and maintenance of
parking area, driveways and alleys, and heating and air conditioning systems
maintenance, which are otherwise a Tenant obligation to perform.
C. Tenant shall be liable for its proportionate share of Landlord's cost
and expense of maintenance and repairs pursuant to Paragraph 5(B) above, but
excluding capital costs for roof or parking lot replacement; and further, if
Tenant can be clearly identified as being responsible for any damages, then
Tenant shall pay the entire cost thereof, upon demand.
6. Tenant's Repairs
A. Tenant shall at its own cost and expense keep and maintain all parts
of the premises (except those listed in Paragraph 5(A) above) in good
condition, promptly making all necessary repairs and replacements, including
but not limited to, windows, glass and plate glass, doors, any special office
entry, interior walls and finish work, floors and floor covering, truck doors,
dock bumpers, plumbing work and fixtures, termite and pest extermination,
regular removal of trash and debris, keeping the parking areas, driveways,
alleys and the whole of the premises in a clean and sanitary condition.
B. Tenant shall not damage any demising wall or disturb the integrity
and support provided by any demising wall and shall, at its sole cost and
expense, promptly repair any damage or injury to any demising wall caused by
Tenant or its employees, agents or invitees.
C. In the event the premises constitute a portion of a multiple
occupancy building. Tenant and its employees, customers and licensees shall have
the exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress and
egress of other tenants. Landlord shall not be responsible for enforcing
Tenant's exclusive parking rights against any third parties.
7. Alterations Tenant shall not make any alterations, additions or
improvements to the premises (including but not limited to roof and wall
penetrations) without the prior written consent of Landlord. Tenant may, without
the consent of Landlord, but at its own cost and expense and in a good
workmanlike manner erect such shelves, bins, machinery and trade fixtures as it
may deem advisable, without altering the basic character of the building or
improvements and without overloading or damaging such building or improvements,
and in each case complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations, additions, improvements and
partitions erected by Tenant shall be and remain the property of Tenant during
the terms of this lease. The Tenant shall not be required to remove leasehold
improvements at the end of the term. Tenant prior to the termination of this
lease if Tenant so elects, and shall be removed by the date of termination of
this lease or upon earlier vacating of the premises if required by Landlord:
upon any such removal Tenant shall restore the premises to their original
condition. All such removals and restoration shall be accomplished in a good
workmanlike manner so as not to damage the primary structure or structural
qualities of the buildings and other improvements situated on the premises.
8. Signs.
A. Landlord agrees to have installed a sign in accordance with
Landlord's criteria. The Tenant, upon vacation of the premises, or the removal
or alteration of its sign for any reason, shall be responsible for the repair,
painting, and/or replacement of the building facia surface to which signs are
attached.
B. Tenant shall not, without Landlord's prior written consent (i) make
any changes to or paint the store front; or (ii) install any exterior lights,
decorations or paintings; or (iii) erect or install any signs, window or door
lettering, placards, decorations or advertising media of any type which can be
viewed from the exterior of the premises, excepting only dignified displays of
customary type for its display windows. All signs, decorations, advertising
media, blinds, draperies and other window treatment of bars or other security
installations visible from outside the premises shall conform in all respects
to the criteria established by Landlord for the Project from time to time in
the exercise of its sole discretion, and shall be subject to the prior written
approval of Landlord as to construction, method of attachment, size, shape,
height, lighting, color and general appearance. All signs shall be kept in good
condition and in proper operating order at all times. Landlord reserves the
right to designate a uniform type of sign for the Project to be installed by
Tenant (or, at Landlord's option, by Landlord), but in any event to be paid for
by Tenant.
9. Inspection. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the premises
or in order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this lease. During the period that is six (6)
months prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time during business hours for the purpose of showing the premises and shall
have the right to erect on the premises a suitable sign indicating the premises
are available. Tenant shall give written notice to Landlord at least thirty
(30) days prior to vacating the premises and shall arrange to meet with
Landlord for a joint inspection of the premises prior to vacating. In the event
of Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
10. Utilities. Landlord agrees to provide at its cost water, electricity
and telephone service connections into the premises, but Tenant shall pay for
all water, gas, heat, light, power, telephone, sewer, sprinkler charges and
other utilities and services used on or from the premises, together with any
taxes, penalties, surcharges or the like pertaining thereto and any maintenance
charges for utilities and shall furnish all electric light bulbs and tubes. If
any such services are not separately metered to Tenant, Tenant shall pay a
reasonable proportion as determined by Landlord of all charges jointly metered
with other premises. Landlord shall in no event be liable for any interruption
or failure of utility services on the premises. Water and sewer are paid under
Paragraph 2(C) above.
11. Assignment and Subletting. Tenant shall not have the right to assign,
sublet, transfer or encumber this lease, or any interest therein, without the
prior written consent of Landlord. XXXX XXXX XXXX XXXX Any attempted
assignment, subletting, transfer or encumbrance by Tenant in violation of the
terms and covenants of this Paragraph shall be void. All cash or other proceeds
of any assignment, such proceeds as exceed the rentals called for hereunder in
the case of a subletting and all cash or other proceeds of any other transfer
of Tenant's interest in this lease shall be
page 2
said to Landlord, whether such assignment, subletting or other transfer is
consented to by Landlord or not, unless Landlord agrees to the contrary in
writing, and Tenant hereby assigns all rights it might have or ever
XXXX any such proceeds to Landlord. Any assignment, subletting or
other transfer of Tenant's interest in this lease shall be for an amount
XXXX then fair market value of such interest. These covenants
shall run with the land and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, representatives in any bankruptcy
proceeding, successors and assigns. Any assignee, sublessee or transferee of
Tenant's interest in this lease (all such assignees, sublessees and transferees
being hereinafter referred to as "successors"), by assuming Tenant's obligations
hereunder shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such successors in contravention of this Paragraph. No
assignment, subletting or other transfer, whether consented to by Landlord or
not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an
"event of default" as hereinafter defined, if the premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other remedies herein
provided, or provided by law, may at its option collect directly from such
assignee or subtenant all rents becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due to Landlord from Tenant
hereunder, and no such collection shall be construed to constitute a novation
or a release of Tenant from the further performance of Tenant's obligations
hereunder.
12. Fire and Casualty Damage.
A. Landlord agrees to maintain standard fire and extended coverage
insurance covering the building of which the premises are a part in an amount
not less that 80% (or such greater percentage as may be necessary to comply
with the provisions of any co-insurance clauses of the policy) of the
"replacement cost" thereof as such coverage is defined in the Replacement
Cost Endorsement to be attached thereto, insuring against the perils of Fire,
Lightning and Extended Coverage, such coverages and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State in which the premises are situated
for use by insurance companies admitted in such state for the writing of such
insurance on risks located within such state. Subject to the provisions of
subparagraphs 12(C), 12(D) and 12(E) below, such insurance shall be for the
sole benefit of Landlord and under its sole control.
B. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be completed
within two hundred (200) days after the date upon which Landlord is notified by
Tenant of such damage, this lease shall terminate and the rent shall be abated
during the unexpired portion of this lease, effective upon the date of the
occurrence of such damage.
D. If the buildings situated upon the premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph
12(A) above, but only to such extent that rebuilding or repairs can in
Landlord's estimation be completed within two hundred (200) days after the date
upon which Landlord is notified by Tenant of such damage, this lease shall not
terminate, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair such buildings to substantially
the condition in which they existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the premises by Tenant and except that Tenant shall pay to Landlord upon
demand any amount by which Landlord's cost of such rebuilding, repair and/or
replacement exceeds net insurance proceeds paid to Landlord in connection with
such damage. If the premises are untenantable in whole or in part following
such damage, the rent payable hereunder during the period in which they are
untenantable shall be reduced to such extent as may be fair and reasonable
under all of the circumstances. In the event that Landlord should fail to
complete such repairs and rebuilding within two hundred (200) days after the
date upon which Landlord is notified by Tenant of such damage, Tenant may at
its option terminate this lease by delivering written notice of termination to
Landlord as Tenant's exclusive remedy, whereupon all rights and obligations
hereunder shall cease and terminate.
E. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
F. Anything in this lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the premises,
improvements to the building of which the premises are a part, or personal
property (building contents) within the building, by reason of fire or the
elements regardless of cause or origin, including negligence of Landlord or
Tenant and their agents, officers and employees, but only to the extent of the
insurance proceeds payable under the policies of insurance covering the
property. Because this subparagraph will preclude the assignment of any claim
mentioned in it by way of subrogation (or otherwise) to an insurance company
(or any other person), each party to this lease agrees immediately to give each
insurance company which has issued to it policies of fire and extended coverage
insurance, written notice of the terms of the mutual waivers contained in this
subparagraph, and to have the insurance policies properly endorsed, if
necessary, to prevent the invalidation of the insurance coverages by reason of
the mutual waivers contained in this subparagraph.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees, or of any other person entering upon the
premises, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation the
trustee and beneficiaries if Landlord is a trust), Landlord's agents and
employees from any loss, liability, claims, suits, costs, expenses, including
without limitation attorney's fees and damages, both real and alleged, arising
out of any such damage or injury; except injury to persons or damage to
property the sole cause of which is the negligence of Landlord or the failure
of Landlord to repair any part of the premises which Landlord is obligated to
repair and maintain hereunder within a reasonable time after the receipt of
written notice from Tenant of needed repairs. Tenant shall procure and maintain
throughout the term of this lease a policy or policies of insurance, at its
sole cost and expense, insuring both Landlord and Tenant against all claims,
demands or actions arising out of or in connection with (i) the premises; (ii)
the condition of the premises; (iii) Tenant's operations in and maintenance and
use of the premises; and (iv) Tenant's liability assumed under this lease, the
limits of such policy or policies to be in the amount of not less than $500,000
per occurrence in respect of injury to persons (including death), and in the
amount of not less than $50,000 per occurrence in respect of property damage or
destruction, including loss of use thereof. All such policies shall be procured
by Tenant from responsible insurance companies satisfactory to Landlord.
Certified copies of such policies, together with receipt evidencing payment of
premiums therefor, shall be delivered to Landlord prior to the Commencement
date of this lease. Not less than fifteen (15) days prior to the expiration
date of any such policies, certified copies of the renewals thereof (bearing
notations evidencing the payment of renewal premiums) shall be delivered to
Landlord. Such policies shall further provide that not less than thirty (30)
days written notice shall be given to Landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
14. Condemnation.
A. If the whole or any substantial part as determined by Landlord of the
premises should be taken for any public or quasi-public use under governmental
law, ordinance or regulation, or by right of eminent domain, or by private
purchase in lieu thereof and the taking would prevent or materially interfere
with the use of the premises for the purpose for which they are being used, as
determined by Landlord this lease shall terminate and the rent shall be abated
during the unexpired portion of this lease, effective when the physical taking
of said premises shall occur.
B. If part of the premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this lease is not
terminated as provided in the subparagraph above, this lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
lease shall be reduced to such extent as may be fair and reasonable under all
of the circumstances.
C. All compensation awarded for any taking (or the proceeds of private
sale in lieu thereof) of the Project, or any part thereof, shall be the property
of Landlord and Tenant hereby assigns its interest in any such award to
Landlord; provided, however, Landlord shall have no
page 3
interest in any award made to Tenant for loss of business or for the taking of
Tenant's XXXX and improvements if a separate award for such items is
made to Tenant.
15. Holding Over. Tenant will, at the termination of this lease by lapse
of time or otherwise, yield up immediate possession to Landlord, with all
repairs and maintenance required herein to be performed by Tenant completed. If
Landlord agrees in writing that Tenant may hold over after the expiration or
termination of this lease, unless the parties hereto otherwise agree in writing
on the terms of such holding over, the hold over tenancy shall be subject to
termination by Landlord at any time upon not less that five (5) days advance
written notice, or by Tenant at any time upon not less than thirty (30) days
advances written notice, and all of the other terms and provisions of this
lease shall be applicable during that period, except that Tenant shall pay
Landlord from time to time upon demand, as rental for the period of any hold
over, an amount equal to double the rent in effect on the termination date,
computed on a daily basis for each day of the hold over period. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to extend
this lease except as otherwise expressly provided. The preceding provisions of
this paragraph 15 shall not be construed consent for Tenant to hold over.
16. Quiet Enjoyment. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises,
free and clear of all liens and encumbrances, excepting only the lien for
current taxes not yet due, such mortgage or mortgages as are permitted by the
terms of this lease, zoning ordinances and other building and fire ordinances
and governmental regulations relating to the use of such property, and
casements, restrictions and other conditions of record. In the event this lease
is a sublease, then Tenant agrees to take the premises subject to the
provisions of the prior leases. Landlord represents and warrants that is has
full right and authority to enter into this XXXX and that Tenant, upon
paying the rental herein set forth and performing its other covenants and
agreements herein set forth, shall peaceable and quietly have, hold and enjoy
the premises for the term hereof without hindrance or molestation from Landlord,
subject to the terms and provisions of this lease.
17. Events of Default. The following events shall be deemed to be events
of default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein
when due, and such failure shall continue for a period of five (5) business
days from the date such payment was due.
B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors or shall
transfer all or substantially all of its assets to another person or entity.
C. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Code, as amended, or under any similar law or statute of
the United States or any State thereof, or an order for relief shall be entered
against Tenant in any proceedings filed against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant.
E. Tenant shall generally not pay its debts as such debts become due.
F. Tenant shall vacate all or a substantial portion of the premises,
whether or not Tenant is in default of the rental payments due under this lease.
G. Tenant shall fail to discharge any lien placed upon the premises in
violation of Paragraph 20 hereof within twenty (20) days after any such lien or
encumbrance is filed against the premises.
H. Tenant shall fail to comply with any term, provision or covenant of
this lease (other than the foregoing in this Paragraph 17), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant.
18. Remedies.
A. Upon the occurrence of any such events of default described in
Paragraph 17 hereof, Landlord shall have the option to pursue any one or more
of the following remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails so to do,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the
premises and expel or remove Tenant and any other person who may be
occupying such premises or any part thereof, by force if necessary,
without being liable for prosecution of any claim of damages therefor.
(b) Enter upon and take possession of the premises and expel or
remove Tenant and any other person who may be occupying such premises or
any part thereof, by force if necessary, without being liable for
prosecution or any claim for damages therefor, and relet the premises and
receive the rent therefor.
(c) Enter upon the premises, by force if necessary, without being
liable for prosecution or any claim for damages therefor, and do
whatever Tenant is obligated to do under the terms of this lease, and
Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in thus effecting compliance with Tenant's obligations
under this lease, and Tenant further agrees that Landlord shall not be
liable for any damages resulting to the Tenant from such action, whether
caused by the negligence of Landlord or otherwise.
(d) Alter all locks and other security devices at the premises
without terminating this lease.
B. In the event Landlord may elect to regain possession of the premises
by a forcible detainer proceeding. Tenant hereby specifically waives any
statutory notice which may be required prior to such proceeding, and agrees
that Landlord's execution of this lease is, in part, consideration for this
waiver.
C. In the event Tenant fails to pay any installment of rent hereunder as
and when such installment is due, to help defray the additional cost to
Landlord for processing such late payments Tenant shall pay to Landlord on
demand a late charge in an amount equal to five percent (5%) of such
installment, and the failure to pay such amount within ten (10) days after
demand therefor shall be an event of default hereunder. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
D. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of
Tenant or others at the premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Tenant's property within the premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for
any legal proceedings, as Landlord may elect, and Landlord shall not be liable
in trespass or otherwise.
E. In the event Landlord elects to terminate the lease by reason of an
event of default, then notwithstanding such termination. Tenant shall be liable
for and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all rental and other indebtedness accrued to date of such
termination, plus, as damages, an amount equal to the difference between (i)
the total rental hereunder for the remaining portion of the lease term (had
such term not been terminated by Landlord prior to the date of expiration
stated in Paragraph 1 and (ii) the then present value of the then fair rental
value of the premises for such period.
F. In the event that Landlord elects to repossess the premises without
terminating the lease, then Tenant shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental
and other indebtedness accrued to the date of such repossession, plus rental
required to be paid by Tenant to Landlord during the remainder of the lease
term until the date of expiration of the term as stated in Paragraph 1
diminished by any net sums thereafter received by Landlord through reletting
the premises during said period (after deducting expenses incurred by Landlord
as provided in subparagraph 18(G) below). In no event shall Tenant be entitled
to any excess of any rental obtained by reletting over and above the rental
herein reserved. Actions to collect amounts due by Tenant to Landlord under this
subparagraph may be brought from time to time, on one or more occasions, without
the necessity of Landlord's writing until expiration of the lease term.
G. In case of any event of default or breach by Tenant, or threatened or
anticipatory breach or default, Tenant shall also be liable for and shall pay
to Landlord, at the address specified for notice to Landlord herein, in
addition to any sum provided to be paid above, brokers' fees incurred by
Landlord in connection with reletting the whole or my part of the premises; the
costs of removing and storing Tenant's or other occupant's property; the costs
of repairing, altering, remodeling or otherwise putting the premises into
condition acceptable to a new
page 4
tenant or tenants, and all reasonable expenses incurred by Landlord in enforcing
or defending Landlord's rights and/or remedies including reasonable attorney's
fees whether suit is actually filed or not.
H. In the event of termination or repossession of the premises for an
event of default, Landlord shall not have any obligation to relet or to attempt
to relet the premises, or any portion thereof, or to collect rental after
reletting; and in the event of reletting. Landlord may relet the whole or any
portion of the premises for any period to any tenant and for any use and
purpose.
I. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the premises for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees, to pay Landlord, upon demand, all costs, expenses and
disbursements (including reasonable attorney's fees) incurred by Landlord in
taking such remedial action.
J. In the event of any default by Landlord, Tenant's exclusive remedy
shall be an action for damages (Tenant hereby waiving the benefit of any laws
granting it a lien upon the property of Landlord and/or upon rent due
Landlord), but prior to any such action Tenant will give Landlord written
notice specifying such default with particularity, and Landlord shall thereupon
have thirty (30) days in which to cure any such default. Unless and until
Landlord fails to so cure any default after such notice, Tenant shall not have
any remedy or cause of action by reason thereof. All obligations of Landlord
hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Landlord only during the period of its
possession of the premises and not thereafter. The term "Landlord" shall mean
only the owner, for the time being of the premises, and in the event of the
transfer by such owner of its interest in the premises, such owner shall
thereupon be released and discharged from all covenants and obligations of the
Landlord thereafter accruing, but such covenants and obligations shall be
binding during the lease term upon each new owner for the duration of such
owner's ownership. Notwithstanding any other provision hereof, Landlord shall
not have any personal liability hereunder. In the event of any breach or
default by Landlord in any term or provision of this lease, Tenant agrees to
look solely to the equity or interest then owned by Landlord in the premises;
however, in no event, shall any deficiency judgment or any money judgment of
any kind be sought or obtained against any party Landlord.
K. In the event that Landlord shall have taken possession of the premises
pursuant to the authority herein granted then Landlord shall have the right to
keep in place and use all of the furniture, fixtures and equipment at the
premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. Landlord shall also have
the right to remove from the premises (without the necessity of obtaining a
distress warrant, writ of sequestration or other legal process) all or any
portion of such furniture, fixtures, equipment and other property located
thereon and to place name in storage at any premises within the County in which
the premises is located; and in such event, Tenant shall be liable to Landlord
for costs incurred by Landlord in connection with such removal and storage.
Landlord shall also have the right to relinquish possession of all or any
portion of such furniture, fixtures, equipment and other property to any person
("Claimant") claiming to be entitled to possession thereof who presents to
Landlord a copy of any instrument represented to Landlord by Claimant to have
been executed by Tenant (or any predecessor of Tenant) granting Claimant the
right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity of said instrument's copy of Tenant's
or Tenant's predecessor's signature thereon and without the necessity of
Landlord making any nature of investigation or inquiry as to the validity of
the factual or legal basis upon which Claimant purports to act; and Tenant
agrees to indemnify and hold Landlord harmless from all cost, expense, loss,
damage and liability incident to Landlord's relinquishment of possession of all
or any portion of such furniture, fixtures, equipment or other property to
Claimant. The rights of Landlord herein stated shall be in addition to any and
all other rights which Landlord has or may hereafter have at law or in equity;
and Tenant stipulates and agrees that the rights herein granted Landlord are
commercially reasonable.
19. Mortgages. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or the improvements situated thereon,
provided, however, that if the mortgages, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this lease
superior to any such instrument, then by notice to Tenant from such mortgages,
trustee or holder, this lease shall be deemed superior to such lien, whether
this lease was executed before or after said mortgage or deed of trust. Tenant
shall at any time hereafter on demand execute any instruments, release or other
documents which may be required by any mortgages for the purpose of subjecting
and subordinating this lease to the lien of any such mortgage.
20. Mechanic's Liens and Tenant's Personal Property Taxes.
A. Tenant shall have no authority, express or implied, to create or place
any lien or encumbrance of any kind or nature whatsoever upon, or in any manner
to bind, the interest of Landlord or Tenant in the premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
premises on which any lien is or can be validly and legally asserted against
its leasehold interest in the premises or the improvements thereon and that it
will save and hold Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold
estate or against the right, title and interest of the Landlord in the premises
or under the terms of this lease. Tenant agrees to give Landlord immediate
written notice of the placing of any lien or encumbrance against the premises.
B. Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the premises. If
any such taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and if Landlord elects to pay the same or if
the assessed value of Landlord's property is increased by inclusion of personal
property, furniture or fixtures placed by Tenant in the premises, and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord
upon demand that part of such taxes.
21. Miscellaneous.
A. Words of any gender used in this lease shall be held and constructed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord
shall have the right to transfer and assign, in whole or in part, its rights
and obligations in the building and property that are the subject of this
lease. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this lease.
C. The captions inserted in this lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this lease,
or any provision hereof, or in any way affect the interpretation of this lease.
D. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, a Certificate of
Occupancy and an estoppel certificate stating that this lease is in full force
and effect, the date to which rent has been paid, the unexpired term of this
lease and such other matters pertaining to this lease as may be requested by
Landlord. It is understood and agreed that Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material inducement for
Landlord's execution of this lease.
E. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair. Tenant shall also, prior to vacating the premises, pay to Landlord
the amount, as estimated by Landlord, of Tenant's obligation hereunder for real
estate taxes and insurance premiums for the year in which the lease expires or
terminates. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and
satisfied, as the case may be. Any security deposit held by Landlord shall be
credited against the amount payable by Tenant under this Paragraph 21(F).
page 5
G. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
lease, then and in that event, it is the intention of the parties hereto that
the remainder of this lease shall not be affected thereby, and it is also the
intention of the parties to this lease that in lieu of each clause or provision
of this lease that is illegal, invalid or unenforceable, there be added as a
part of this lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
H. Because the premises are on the open market and are presently being
shown, this lease shall be treated as an offer with the premises being subject
to prior lease and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
I. All references in this lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on
which all parties hereto have executed this lease.
J. Tenant represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction or that no broker, agent or
other person brought about this transaction, other than InterSouth Properties
---------------------
Inc. and Tenant agrees to indemnity and hold Landlord harmless from and against
- ----
any claims by any other broker, agent or other person claiming a commission or
other form of compensation by virtue of having dealt with Tenant with regard to
this leasing transaction.
K. If and when included within the term "Landlord," as need in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord: if and when included within the term "Tenant", as used
in this instrument, there are more than one person, from or corporation, all
shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address within the
continental United States for the receipt of notices and payments to Tenant. All
parties included within the terms "Landlord" and "Tenant", respectively, shall
be bound by notices given in accordance with the provisions of Paragraph 23
hereof to the same effect as if each had received such notice.
22. Additional Provisions.
A. Rental Schedule. Listed below is the rental schedule as set forth in
---------------
Paragraph 2(A):
Monthly Base
Month Rental Rate/S.F.
- ------------------------------------
1-12 $4,047.00 $ 9.75
13-24 $4,169.00 $10.04
25-36 $4,294.00 $10.34
37-48 $4,423.00 $10.65
39-60 $4,556.00 $10.97
B. Right of First Refusal. Landlord shall provide Tenant a right of
-----------------------
first refusal on the remaining 1,804 s.f. of Bay 17 ("Option Space" outlined on
Exhibit "E"). Tenant acknowledges that the Option Space is available to the open
market for lease as of the date of this lease commencement. Prior to entering
into a lease with a third party for the Option Space, Landlord agrees to offer
to lease the Option Space to Tenant upon the same terms and conditions and at
the same rental rate as offered to the third party. If within five (5) business
days after Landlord delivers Tenant such written offer. Landlord does not
receive notice in writing that Tenant elects to lease all (and not part) of the
Option Space and within ten (10) days thereafter Tenant does not execute a lease
on the Option Space, the Tenant's right to lease the Option Space shall have no
further rights pursuant to this paragraph.
C. CAM Maintenance. During the initial term of this lease, Tenant's
----------------
share of maintenance costs pursuant to Paragraphs 5 (B) and 5 (C) shall not
exceed $1,644.00 for CY 1999, $1,808 for CY 2000, $1,919.00 for CY 2001,
$2,188.00 for CY 2002, $2,407.00 for CY 2003, and $2,648.00 for CY 2004.
D. Renewal Option. While this lease is in full force and effect,
---------------
provided that Tenant is not in default of any of the terms, covenants and
conditions hereof, Tenant shall have the right and option to extend the
original term of this lease for one further term of sixty (60) months. Such
extension of the original term shall be on the same terms, covenants, and
conditions as provided for in the original term except for this paragraph and
except that the rental during the extended term shall be at fair market rental
then in effect on equivalent properties, of equivalent size, in equivalent
areas (but in no event less than the rental specified in Paragraph 2 (A) of
this Lease) and except that any further tenant improvement cost will be
negotiable. This option shall not be available if Tenant assigns this Lease or
if a subtenant is in possession of the premises at any time during the original
term. Notice of Tenant's intention to exercise the option must be given to
Landlord in writing not more than six (6) months prior to the expiration of the
initial term of this Lease. In the event the Tenant falls to deliver such
written notice within the time period set forth above. Tenant's right to extend
the term hereof shall expire and be of no further force and affect.
23. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making of
any payment by Landlord to Tenant or with reference to the sending, mailing or
delivery of any notice or the making of any payment by Tenant to Landlord shall
be deemed to be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord hereinbelow
set forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay rent
and any other amounts to Landlord under the terms of this lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address hereinbelow set forth, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
C. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when deposited
in the United States Mail, postage prepaid, Certified or Registered Mail,
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith.
LANDLORD: TENANT:
Progress Partners, LLC Architel Systems (U.S.) Corporation
c/o InterSouth Properties, Inc c/o 190 Attwell Drive, Suite 300, Toronto
P.O. Box 2739 M9W 6H8 Canada
Huntsville, Alabama 35804 ATTN: Stuart Griffith
(256) 830-9160 VP Finance and General Counsel
page 6
EXECUTED BY LANDLORD, this day of February, 1999.
Attest/Witness PROGRESS PARTNERS, LLC
----------------------
____________________________________
Title: _____________________________ By: __________________________________
Alan C. Jenkins
Managing Member
EXECUTED BY TENANT, this day of February, 1999
Attest/Witness Architel Systems (U.S.) Corporation
--------------------------------------
By: /S/ [ILLEGIBLE]^^
_____________________________________ __________________________________
Title: ______________________________ Title: /S/ [ILLEGIBLE]^^
______________________________
Awaiting execution.
23FEB99
page 7
[FLOOR PLAN GRAPHIC APPEARS HERE]
EXHIBIT B
---------
THIS EXHIBIT TO BE REPLACED WITH FINAL APPROVED DRAWING AND FINISH
SCHEDULE(**)
[FLOOR PLAN GRAPHIC APPEARS HERE]
EXHIBIT A
---------
Premises more particularly described as Bay 16 and a portion of Bay 17
containing 4,982 rentable square feet. Premises more commonly known as
Research Park Office Center, 7067 Old Madison Pike, NW Suite 150,
Huntsville, Alabama 35806, Landlord agrees to construct improvements to
the premises in accordance with Exhibit "B" attached hereto using a
Tenant Improvement Allowance not to exceed $24.38 s.f. ($121,481.00)