EXHIBIT 10.64
LEASE BETWEEN
AGERS HOLDINGS LTD.
AS LANDLORD
AND
STARTEK CANADA SERVICES LTD.
AS TENANT
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MEMORANDUM OF AGREEMENT
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MEMORANDUM OF AGREEMENT OF LEASE MADE AT THE CITY OF HAWKESBURY, IN THE PROVINCE
OF ONTARIO, CANADA, AS OF THE ___29_____ DAY OF THE MONTH OF DECEMBER, TWO
THOUSAND AND FIVE.
BETWEEN: AGERS HOLDINGS LTD., a company duly incorporated under the
Canada Business Corporations Act, having its head office in
the City of Montreal, Canada, herein acting and represented
by Mr. Jordan Aberman, its representative duly authorized as
he declares,
(Thereafter referred as the "Landlord")
(THE PARTY OF THE FIRST PART)
AND: STARTEK CANADA SERVICES LTD. a legal person duly
incorporated under the Laws of the State of Delaware, having
its head office at 100 Garfield Street, Denver, Colorado,
80206, herein acting and represented by Rodd Granger, its
Chief Financial Officer (CFO), duly authorized by virtue of
a resolution of its Board of Directors, a certified extract
of which is annexed to these presents,
(THEREAFTER REFERRED AS THE "TENANT")
(THE PARTY OF THE SECOND PART)
WITNESSETH:
ARTICLE ONE
DEFINITIONS AND EXHIBITS
In this Lease (including this Article) unless there is something in the context
inconsistent therewith, the Parties agree that:
1.01 AREA OF THE LEASED PREMISES
"Area of the Leased Premises" means that area outlined in red in Exhibit "A"
attached hereto and signed by the parties for identification measuring, to be
computed from the outside of the exterior walls and from the central line of the
partition walls and comprising a total area of approximately FORTY ONE THOUSAND
AND NINETEEN square feet (41,019 sq. ft.). The Rentable Area of the Leased
Premises will be subject to verification and measurement by Tenant's Architect
(as defined in Article 27).
The Tenant acknowledges that Rentable Area of the Premises as set forth in the
Basic Lease Provisions has been determined in accordance with "Article 27"
attached hereto and made a part hereof. If either the Rentable Area of the
Premises or the Building shall be increased or decreased, as determined by the
method of measurement specified on Article 27, the Annual Base Rent and the
Tenant's Premises Percentage shall be adjusted accordingly.
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1.02 ARCHITECT
"Architect" means the Architect from time to time named by the Tenant and with
the approval of the Landlord, such approval not to be unreasonably withheld; as
to any Architect's certificate provided for in this Lease, the decision of the
Architect and his certificate shall be final and binding on all the parties
hereto.
1.03 COMMENCEMENT DATE
"Commencement Date" means the date set out in Article 2.02 for the commencement
of the Term.
1.04 POSSESSION DATE
"Possession Date" means the date set out in Article 3.01, which is on or before
February 1st, 2006, for the delivery of the Premises from Landlord to Tenant for
commencement of Tenant's Leasehold Improvements.
1.05 COMMON AREAS AND FACILITIES
"Common Areas and Facilities" means the parking areas, roadways, sidewalks,
landscaped areas, exterior and (if applicable) interior malls, stairways,
escalators, truck courts, common loading areas, electrical, music and public
address systems, plumbing and drainage equipment and installations and any
enclosures constructed therefore, general signs, and maintenance equipment,
which are provided or designated (and which may be changed) from time to time by
the Landlord for the use by or benefit of the Tenant, its employees, customers
and other invitees in common with others entitled to the use or benefit thereof,
in the manner and for the purpose permitted by this Lease.
1.06 GROSS LEASABLE AREA
"Gross Leasable Area" means the aggregate area (expressed in square feet) of all
floors (excluding basement) in the Shopping Centre computed, unless herein
otherwise specified, at the date when any calculation based upon Gross Leasable
Area is required to be made.
1.07 LEASE
"Lease", "hereof", "herein", "hereby", "hereunder" and similar expressions mean
or refer to this Agreement, all Exhibits attached hereto, the Architect's
certificates, if any, and rules and regulations made from time to time under the
provisions of Article 21.04.
1.08 Leasehold Improvements
"Leasehold Improvements" means any alterations, improvements and installations
to be constructed or installed by Landlord or Tenant in the Premises in
accordance with Article 27 and any other alterations or improvements made by
Landlord or Tenant to the Premises during the Term pursuant to the terms and
provisions of this Lease.
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1.09 LEASE YEAR
"Lease Year" means a period of twelve (12) months commencing initially upon the
Commencement Date of this Lease, and thereafter on successive anniversary dates
of the Commencement Date of this Lease.
1.10 LEASED PREMISES
"Leased Premises" means that part of the Shopping Centre leased to the Tenant by
this Lease, the location of which is more particularly set forth and shown
outlined in red on the site plan which constitutes Exhibit "A" hereto; where a
storefront or entrance is recessed from the main building line shown on such
plan, the area of such recess shall for all purposes be a part of the Leased
Premises.
1.11 SHOPPING CENTRE
"Shopping Centre" means the lands located in the City of Hawkesbury, in the
Province of Ontario as more particularly described in Article 24 of this Lease,
which lands and premises are commonly known as the Hawkesbury Mall together with
the buildings, improvements and facilities established as at the date hereof or
subsequently added thereto from time to time.
1.12 TAXING AUTHORITY
"Taxing Authority" means any duly constituted governmental authority whether
federal, provincial, municipal or otherwise legally empowered to impose taxes,
rates, assessments or charges on, upon or in respect of the Shopping Centre.
1.13 EXHIBITS
The Exhibits listed below are attached to and incorporated in this Lease. In the
event of any inconsistency between such Exhibits and the terms and provisions of
this Lease, the terms and provisions of the Lease will control. The Exhibits to
this Lease are:
Exhibit A - PLAN OF THE LEASED PREMISES
Exhibit A-1 - PLAN OF TEMPORARY PREMISES
Exhibit B PLAN OF THE DESIGNATED PARKING AREA
1.14 TEMPORARY PREMISES
"Temporary Premises" means the space designated for temporary occupancy on
Exhibit A-1 within the Shopping Centre for recruitment, interviews, training and
other approved functions.
ARTICLE TWO
LEASE AND TERM
2.01 LEASE
The Landlord hereby leases the Leased Premises to the Tenant for the "Term" (as
hereinafter defined), the Tenant hereby accepting; the Tenant shall be entitled
for the benefit of the Leased Premises to enjoy, on the terms and conditions set
forth herein, the use or benefit of the Common Areas and Facilities as the same
may exist from time to time, in common with others entitled thereto.
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2.02 TERM
"Term" means the period of SIX (6) years with rent commencing on April 1, 2006
("Commencement Date") and to be fully completed and ended on the last day of
March 2012. Tenant shall have access to the Leased Premises on February 1st,
2006 for the purpose of developing Preliminary Plans for Leasehold Improvements
and commencing construction with approval and assistance provided by the
Landlord which shall not be unreasonable withheld.
OPTION TO EXTEND: Provided that Tenant is not then in default of any of its
obligations hereunder beyond any applicable period of notice and/or cure, Tenant
shall have the option to extend the Lease Term for Two (2) additional periods of
Three (3) years (each an "Extension Term"). The Extension Terms shall be upon
the same terms and conditions contained in the Lease for the Lease Term except
the Minimum Rental shall be adjusted to C$4.50 per square foot per year and
there shall be no further Option to Extend beyond the second extension term and
there shall be no free rent and there shall be no allocation from the Landlord
to the Tenant of any nature whatsoever.. Tenant shall exercise such option by
delivering to Landlord, no later than TWELVE months (12) prior to the expiration
of the Lease Term, written notice of Tenant's desire to extend the Lease Term.
Landlord shall notify Tenant in writing within TWELVE (12) months of each Lease
expiration as a courtesy reminder notice to Tenant of the approaching Extension
Term notification requirement as outlined above. Tenant properly exercises its
option to extend, Landlord and Tenant shall execute an amendment to the Lease
reflecting the terms and conditions of the Extension Term. The Rental shall be
paid at the same time and in the same manner as provided in the Lease
FIRST RIGHT OF REFUSAL ON CONTIGUOUS SPACE: For the term of the Lease, Tenant
shall have an on-going first right to lease on the contiguous additional space
in the Project, which is highlighted in green on Exhibit A attached hereto, said
contiguous space has an area of approximately THREE THOUSAND FIVE HUNDRED FORTY
square feet (3,540 sq. ft.). Upon the contiguous vacancy arising in the
Building, Tenant shall be notified within fourteen (14) days of the space
becoming available. Tenant has the first right to negotiate for the space at
that time. Tenant will also have a right to match the terms negotiated with a
third-party tenant, and have the right to take the space under the same terms
and conditions. Tenant shall have FIVE (5) business days from receipt of the
terms to agree and enter into a lease upon the same terms and conditions as
negotiated with a third party tenant, failing which this first right of refusal
shall be null and void and of no further force or effect.
ARTICLE THREE
POSSESSION
3.01 DELIVERY OF POSSESSION
Notwithstanding the Commencement Date of the Term herein set forth, in the event
that the Landlord is not able to deliver possession of the Leased Premises to
the Tenant on or before the Commencement Date which is April 1, 2006, rent shall
abate until delivery of possession, but this Lease shall remain in full force
and effect, and the Tenant hereby accepts, such abatement of rental in full and
complete satisfaction of any claims it might otherwise have against the Landlord
for late delivery of possession of the Leased Premises.
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3.02 NOTIFICATION OF DEFECTS
The Tenant shall notify the Landlord of any defects and faults, excluding latent
defects that are not obvious upon inspection within a one year period, in or in
respect of the Leased Premises which prevent or diminish its use within thirty
(30) days of possession of the Leased Premises having been delivered to it and
failing the giving of notice hereunder the Tenant shall be deemed for all
purposes to have accepted the Leased Premises in the then existing condition and
the Landlord shall not have any further obligation to warrant the Tenant against
any such defects and faults.
3.03 INSTALLATION OF FIRE EQUIPMENT
The Tenant shall install in the Leased Premises, and maintain in proper working
order, manual canister or other type of portable fire extinguishers suitable in
size and type to the Landlord, and/or any other similar equipment as may be
required by the carriers of insurance on the Shopping Centre or the Leased
Premises or the contents therein for the purpose of protecting same from any
loss by fire.
3.04 INSTALLATION AND REMOVAL OF FIXTURES
The Tenant shall perform its leasehold improvements in the Leased Premises, as
described in Article 27, in the manner usual for the installation of such trade
fixtures and such installation shall be completed without damage to the
structure of the Leased Premises or to the heating, ventilating,
air-conditioning, plumbing, electrical and other mechanical systems in the
Shopping Centre.
3.05 INSTALLATION OF SIGN
The Tenant after first obtaining the written approval of the Landlord to the
specifications, design, size, location and method of installation (which matters
shall be wholly within the discretion of the Landlord's Architect, such
discretion not to be unreasonably withheld), shall at the expense of the Tenant
install, maintain and operate during such reasonable hours as the Landlord may
determine a suitable illuminated sign or other illuminated advertising material
on the exterior of the Leased Premises, which sign shall remain the property of
the Tenant. Tenant reserves the right to either remove or leave their signage at
the end of their Term. In addition, Tenant reserves right, with Landlord's prior
approval (such approval not to be unreasonably withheld), to install temporary
signage at temporary training location and interview space within Shopping
Centre and at a prior approved location for notification purposes to potential
employees of Tenant's presence prior to Lease Commencement. The Tenant shall
make good any damage or injury caused to the Leased Premises resulting from such
sign installation and removal.
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ARTICLE FOUR
RENTAL
4.01 UNDERTAKING TO PAY RENTAL
The Tenant undertakes and agrees to pay to the Landlord, or as the Landlord may
in writing direct, during the Term, without any set-off, compensation or
deduction whatsoever, save as otherwise herein provided, rental comprised as
follows:
(I) MINIMUM RENTAL
A minimum rental (herein called "Minimum Rental") per annum during each Lease
Year of SIX DOLLARS AND SEVENTY FIVE CENTS($6.75) PER RENTABLE SQUARE FOOT which
with the approximate rentable square feet outlined in Section 1.01 equals TWO
HUNDRED SEVENTY SIX THOUSAND EIGHT HUNDRED AND SEVENTY EIGHT AND 25/100 DOLLARS
($276,878.25) in equal monthly installments payable on the first day of each
month in advance, of TWENTY THREE THOUSAND AND SEVENTY THREE AND 19/100 DOLLARS
($23,073.19) each, commencing on April 1st, 2006.
(II) ADDITIONAL RENTAL
Gross Leasable Area of the Shopping Centre is 95,343 Square Feet
An additional monthly charge commencing on April 1st, 2006, (herein called
Additional Rental) TWO DOLLARS AND FOUR CENTS ($2.04) PER RENTABLE SQUARE FOOT
which with the approximate rentable square feet outlined in Section 1.01 equals
SIX THOUSAND NINE HUNDRED SEVENTY THREE AND 23/100 DOLLARS ($6,973.23) per
calendar month payable in advance to cover the following costs, including
without limitation to:
a) Maintenance, cleaning, snow removal and lighting of the Parking lot;
b) Maintenance, cleaning, heating and air-conditioning of the enclosed Mall;
c) Administration;
d) Pest Control (in accordance with Section 21.09 of this Lease);
e) General and preventive maintenance on all heating, ventilation and air
conditioning (HVAC) units supporting the Leased Premises, but not
replacement;
The Additional Rental is based on the actual expenses for the year immediately
preceding the Commencement Date of this Lease. The Tenant agrees that on each
succeeding first day of January thereafter, this amount shall be increased or
decreased, as the case may be, for the year immediately following, by an amount
proportional to the increase or decrease of the actual expenses over the said
first day of January.
Notwithstanding the foregoing, should any Taxing Authority decree that the
Landlord must pay a certain tax normally paid by the Tenant, or should the
method of collection of certain taxes be altered from the previous Taxation Year
to render the Landlord responsible rather than the Tenant, or should the system
of real estate taxation shall be altered or varied from the previous Taxation
Year and any one tax, assessment or other levy shall be levied or imposed on the
Shopping Center or the revenues therefrom or the Landlord in substitution for
and/or in addition to any Taxes presently levied or imposed, then the Tenant
shall reimburse the Landlord for any sum claimed from the Landlord by the Taxing
Authority.
(III) FURTHER CHARGES
Any and all other or further amounts which may at any time or times during the
Term be or become payable or reimbursable by the Tenant to the Landlord under
this Lease, and whether qualified as Additional Rental or otherwise, shall be
paid or reimbursed by the Tenant to the Landlord within 10 business days after
written receipt and documentation of said requested payment.
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4.02 PLACE OF PAYMENT OF RENTAL
The Tenant shall pay the rental and other charges herein stipulated without
demand or other formality at the office of the Landlord at the address specified
or designated in or pursuant to Article 20.
4.03 RENTAL FOR IRREGULAR PERIODS
All rental reserved herein, including, without limiting the generality of the
foregoing, Minimum and Additional Rental, shall be deemed to accrue from day to
day, and if for any reason it shall become necessary to calculate rental for
irregular periods of less than one year an appropriate pro-rata adjustment shall
be made on a daily basis in order to compute rental for such irregular period.
4.04 CURRENCY
All payments required to be made by this Lease shall be paid in lawful money of
Canada (Canadian currency).
ARTICLE FIVE
CONDUCT OF BUSINESS
5.01 USE OF PREMISES
The Tenant will not use or occupy the Leased Premises or any part thereof for
any purpose other than the operation of the business of a call center, at
Hawkesbury, Province of Ontario, under the name of StarTek Canada Services Ltd.
So long as Tenant has met the obligations of this Lease and is not in default,
Landlord will not allow another Call Center/Customer Service Center Operator to
occupy space in the Hawkesbury Mall during the duration of Tenant's master lease
or during the term of any extension periods.
5.02 TEMPORARY PREMISES
Landlord agrees to provide to Tenant space designated for temporary occupancy
within the Shopping Centre for recruitment, interviews, training and other
approved functions and as designated as a shaded area in Exhibit A-1. Tenant
agrees to pay for their public utilities, such as gas and electricity, that the
Tenant shall use during their occupancy of the Temporary Premises. Such
occupancy of the former A & P location within the Shopping Centre shall be made
available to Tenant "as is" no later than February 1st, 2006. Landlord grants
Tenant the ability to use the Temporary Premises until April 30, 2006 at which
point Tenant shall vacate the Temporary Premises. Tenant agrees, at the end of
their occupancy of the Temporary Premises, to restore the Premises to their
condition when received.
5.02 REMOVED due to Retail Verbiage
5.03 CONTINUANCE OF BUSINESS
The Tenant shall not leave said Leased Premises unoccupied or vacant, but shall
continuously during the entire Term of his Lease conduct and carry on in the
Leased Premises the type of business for which the Leased Premises are leased as
outlined in Section 5.01.
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5.04 DAYS AND HOURS OF OPERATION
At the Tenant's sole discretion the Tenant shall have the ability to keep the
Premises open continuously, 7 days per week, 365 days per year with shift work
being permissible
ARTICLE SIX
REPAIRS
6.01 TENANT REPAIRS
a) The Tenant shall at its own expense keep its Leased Premises and all of
the Tenant Improvements in Exhibit-B, including but not limited to the interior
of the Leased Premises and the Tenant shall perform all Tenant's maintenance,
repairs or replacements which, without limiting the foregoing shall include
repairing broken floors, maintaining all partitions, fixtures, plumbing and
electrical wiring, equipment and appurtenances thereof (including lighting
fixtures) in good order, condition and repair. Landlord will be responsible for
the replacement of all heating, ventilation and air conditioning (HVAC) units
servicing the Leased Premises at their sole cost and expense. It is understood
by all parties that the general and preventive maintenance of said HVAC unit be
a recoverable expenses from the Tenant in accordance with Section 4.01(II)
Additional Rental.
b) The Tenant shall protect from frost all pipes, water closets, sinks and
accessories thereof in and about the Leased Premises and shall keep the same
free from all uncleanliness or obstruction that might prevent the free working
of the same and shall bear the cost of the repairs necessary to keep the same in
perfect working order during the term of this Lease, on pain of all costs and
damages and without any recourse against the Landlord.
6.02 MAKING OF TENANT REPAIRS
The Tenant shall, when necessary and, whether upon receipt of notice from the
Landlord or not, effect and pay for such maintenance, repairs, replacements or
decoration as may be the responsibility of the Tenant under this Lease by the
use of contractors or other qualified workmen designated or approved by the
Landlord in writing; in the event that the Tenant fails to comply with the
Landlord's request to effect repairs, replacements or maintenance within the
time provided for by the Landlord, then the Landlord may cause such repairs,
replacements or maintenance to be undertaken and add the cost thereof plus a
charge of 10% for supervision to the next monthly installment of rental each of
which may be collected in the same manner as arrears of rental. In the event of
any alterations or repairs carried out by the Tenant, its contractors or
sub-contractors must carry such Workmen's Compensation or General Liability and
Property Damage Insurance for the protection of the Landlord, as the Landlord
may reasonably require, and must display evidence to the Landlord of such
insurance before work is commenced.
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6.03 DELIVERY OF PREMISES IN REPAIR
At the end of the Term, the Tenant will deliver to the Landlord vacant and clean
possession of the Leased Premises, interior of the Premises only, in the
condition in which the Tenant is required to maintain the Leased Premises,
normal wear and tear due to age excepted. No restoration clause or obligations
will apply to Tenant. Tenant reserves the right, per Section 11.02 INSTALLATION
OF SPECIAL EQUIPMENT, to install a generator and/or UPS outside of Tenant's
Leased Premises. Tenant will remove this equipment at the end of their Lease, no
restoration clause will apply and said equipment will remain the property of the
Tenant. The Tenant shall surrender and yield the Leased Premises and all
Tenants' Improvements made in accordance with Article 27 to the Landlord,
without compensation, subject to normal wear and tear due to age excepted with
the exception of Tenant's furniture, fixtures and equipment which shall not be
surrendered to Landlord. Tenant shall make a good faith effort to not damage the
Premises upon their removal of said furniture, fixtures and equipment. The
Tenant undertakes not to demolish said Tenants' Improvements made in accordance
with Article 27.
6.04 INSPECTION OF REPAIR BY LANDLORD
The Landlord and any employee, servant or agent of the Landlord shall be
entitled, at anytime and from time to time, during business hours, to enter and
examine the state of maintenance, repair, decoration and order of the Leased
Premises, all equipment and fixtures within the Leased Premises and any
improvements now or hereafter made to the Leased Premises and the Landlord may
give notice to the Tenant requiring that the Tenant perform such maintenance or
effect such repairs, replacement or decoration as may be found necessary from
such examination: the failure of the Landlord to give such notice shall not
however relieve the Tenant from its obligations to maintain, repair, decorate
and keep the Leased Premises and appurtenances in good order as a careful owner
would do and to make such replacements as may be necessary. Landlord is
obligated to restore, repair, replace and maintain all parts of the Shopping
Centre and all heating, ventilation and air condition (HVAC) units systems
serving the Premises that the Tenant is not obligated to restore, repair,
replace and maintain themselves as outlined in this Lease, save and except for
any and all work as described in Article 27 for which the Tenant is solely
responsible to restore, repair, replace and maintain during this Lease, to the
complete exoneration of the Landlord.
6.05 MAJOR REPAIRS
Should any "major repairs" such as repairs to the roof, the structure and/or to
the foundations of the Shopping Center on or about the Leased Premises become or
be deemed necessary by the Landlord, the Tenant shall permit the same to be
performed so long as Tenant has been informed of such repairs and so long as
those repairs do not impair or interrupt Tenant's business operations. There
shall be no abatement in rent provided that such repairs are made with
reasonable promptness and so long as those repairs do not impair or interrupt
Tenant's business operations, Tenant shall act reasonably.
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6.06 DAMAGE TO LEASED PREMISES BY FIRE
In the event that the Leased Premises are wholly or partially destroyed by fire,
or by other peril, against which the Leased Premises are insured, this Lease
shall continue and shall remain in full force and effect throughout the
remainder of the Term, provided, at the option of the Landlord;
a) That the Landlord notifies the Tenant within ninety (90) days of the
occurrence of the destruction that it will repair or rebuild or not repair
and/or not rebuild the same;
b) That the Landlord commences repair or reconstruction of the destruction
within one hundred and twenty (120) days of the destruction and completes said
repair or reconstruction with reasonable promptness. Such repair, reconstruction
or rebuilding of Tenant's Leased Premises shall be representative of its
original state prior to the damage. The Tenant shall be responsible for
reconstruction of its own improvements, as more fully described, in Article 27
attached hereto, to the complete exoneration of the Landlord.
Subject to the foregoing, the rent shall abate commensurate with the destruction
until the Landlord notifies the Tenant that the Leased Premises are ready for
occupation.
c) It is understood and agreed that nothing contained in this Article shall
obligate the Landlord to rebuild the Leased Premises or any part thereof
according to the original plans and specifications. In the event that the
Landlord notifies the Tenant of said decision not to repair and/or rebuild the
Leased Premises, this Lease shall terminate upon Landlord's written notification
of said intent and Tenant shall be relieved of any future obligation to pay rent
under this Lease.
6.07 DAMAGE TO SHOPPING CENTRE BY FIRE
a) In the event of damage to or destruction of the Shopping Centre by fire,
lightning tempest or other casualty so that the Leased Premises are wholly unfit
for the business of the Tenant or partially unfit for the business of the
Tenant, the Lease shall not be terminated but the rental provided to be paid
hereunder or a proportionate part thereof shall be abated until the Shopping
Centre shall have been rebuilt or the Leased Premises made fit for the business
of the Tenant, whichever is earlier; such abatement shall be in an amount to be
reasonably decided by the Landlord having regard to the nature and extent of
such damage or destruction.
b) In the event of damage to 50% or more of the area of the buildings forming
part of the Shopping Centre or destruction of the Shopping Centre, the Lease may
be terminated, at the option of the Landlord - such option not to be
unreasonably withheld, by the Landlord giving to the Tenant, within 90 days
after the occurrence of such damage to or destruction of the Shopping Centre
notice in writing of the termination of the Lease and thereupon rental and all
other payments for which the Tenant is liable under the Lease shall be
apportioned and paid to the date of the occurrence of such damage or destruction
and the Tenant shall immediately upon receipt of such notice make the payment
required and deliver up possession of the Leased Premises to the Landlord;
provided however, that such termination shall not affect the obligations of any
Guarantor to the Landlord arising from obligations of the Tenant existing prior
to the date such notice of termination is given.
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c) In the event of damage to or destruction of the Tenant's employee parking
area leaving said parking areas unusable to Tenant (but the Leased Premises is
functional and operational), Landlord will use its best efforts to work with the
City of Hawkesbury and/or any private third party in cooperation with Tenant and
other appropriate parties to find adjacent alternate parking on a temporary
basis at no cost to Tenant until usage of such designated parking is restored.
d) It is understood and agreed that nothing contained in this Article shall
obligate the Landlord to rebuild the Shopping Centre or any part thereof
according to the original plans and specifications.
6.08 LANDLORD'S RIGHT TO ENTER FOR REPAIRS
The agents and representatives of the Landlord shall have the right to enter the
Leased Premises at all times during business hours to examine the same or to
make such alterations or repairs as they shall deem necessary for the safety or
preservation or proper administration or improvement of the Leased Premises and
of the Shopping Centre, and of the leasable premises adjoining the Leased
Premises. Such entry shall be deemed not to be an interference with the tenant's
possession under the Lease.
ARTICLE SEVEN
PARKING COMMON AREAS AND FACILITIES
7.01 TENANT'S USE OF PARKING AREAS
a) The employees of the Tenant shall be entitled, during the Tenant's 24/7,
365 days per year business hours, to the use of the Tenants designated parking
areas of the Shopping Center.
b) The Tenant, its employees, suppliers and other persons having business
with the Tenant shall be prohibited from using any part of the customer parking
areas as such may be designated and changed from time to time by the Landlord;
tenant and employee parking shall be limited to specified places, arranged so as
to cause minimal interference to business within the Shopping Centre, but shall
in no event total less than 400 designated parking spaces for Tenant's sole use.
Parking shall be regulated by the Landlord in a reasonable manner and the Tenant
and its employees, suppliers and other persons not customers shall abide by such
regulations as may from time to time be established by the Landlord. If
requested by the Landlord the Tenant shall supply its employees' automobile
license numbers to the Landlord.
c) Should employees of the Tenant park their automobiles in areas not
allocated for that purpose, the Landlord shall, for the first offence of any
employee of the Tenant, notify Tenant promptly and provide adequate time for the
Tenant to remove the said trespassing vehicles. Should the Tenant not remove
said vehicle within 3 hours of notification, the Tenant will pay the costs of
such removal. For the second offence of any employee of the Tenant and any other
contravention to the designated parking spaces, the Landlord shall be allowed to
remove any and all vehicles, the whole without any prior notice to the Tenant
and/or to its employees, and the Tenant shall pay to the Landlord the cost of
said removal and a fine of FIVE HUNDRED DOLLARS ($500.00) per car removed.
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d) Tenant's designated parking, as outlined in Exhibit "C", shall be clearly
denoted and designated for Tenant's exclusive usage.
7.02 CONTROL OF COMMON AREAS AND FACILITIES
The Landlord will, at all times, have the right of control over the Common Areas
and Facilities, and if applicable of the enclosed mall on which the Leased
Premises open. Such control of the mall applies to signs, use of show windows,
and general tenant publicity visible from the mall, as well as to the use made
by the tenants and/or the public of this mall. The Landlord has the right to
close the Shopping Centre mall to the public, at his sole option, outside
regular business hours, Sundays and holidays included. Such closings of the
Shopping Centre Mall itself shall not affect or prohibit Tenant from access to
and use of their Leased Premises as outlined in Section 5.04.
7.03 REMOVED
7.04 CHANGES TO COMMON AREAS AND FACILITIES
Nothing contained in this Lease shall be construed so as to prevent or in any
way restrict the Landlord from altering the location of common areas and
facilities from time to time or from erecting additional buildings or extending
existing buildings and the Landlord may make such changes or additions to the
Shopping Centre as in its sole discretion the Landlord may consider necessary or
desirable. Such changes to common areas and facilities shall not prohibit,
disrupt or restrict access to Tenant's Leased Premises.
7.05 MAINTENANCE OF COMMON AREAS AND FACILITIES
The Landlord shall, during the Term insure, operate, maintain, light and clean
the Common Areas and Facilities and if applicable heat and air condition the
enclosed Mall.
ARTICLE EIGHT
ASSIGNMENT SUB-LETTING
8.01 CONSENT REQUIRED
The rights of the Tenant under this Lease shall not be transferred, assigned or
sold and the Tenant shall not sublet the whole or any part of the Leased
Premises to any party without, in either case, the prior written consent of the
Landlord which consent shall not be unreasonably withheld.
8.02 LIABILITY FOLLOWING ASSIGNMENT
Any such transfer, assignment, sub-leasing, or otherwise, shall be subject to
all the terms and conditions of this Lease and the Tenant will remain jointly
and severally liable with any such transferee, assignee, or sub-tenant, without
benefit of division or discussion and whether such joint and several
responsibility be mentioned or not in any consent to such transfer, assignment
or subleasing, unless the Landlord shall have waived in writing its rights under
this Article 8.02.
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ARTICLE NINE
INSURANCE
9.01 TENANT INSURANCE
The Tenant shall take out and keep in force during the Term, insurance upon all
glass and plate glass in the Leased Premises, whether provided by the Landlord
or the Tenant, and property damage and public liability insurance all in amounts
and with policies in form satisfactory from time to time to the Landlord with
insurers acceptable to the Landlord. Each such policy shall name the Landlord as
an additional insured as its interest may appear and in the case of such public
liability insurance as between the Landlord and the Tenant; the cost or premium
for each and every such policy shall be paid by the Tenant. The Tenant shall
obtain from the insurers under such policies undertaking to notify the Landlord
in writing at least ten (10) days prior to any cancellation thereof. The Tenant
agrees that if the Tenant fails to take out or to keep in force such insurance,
the Landlord will have the right to do so and to pay the premium therefor and in
such event the Tenant shall repay to the Landlord the amount paid as premium
which repayment shall be deemed to be Additional Rental payable on the first day
of the next month following the said payment by the Landlord. The Tenant shall
take out and keep in force during the term hereof fire insurance covering his
stock-in-trade, furniture, fixtures and improvements in an amount equal to the
full insurable value thereof.
9.02 NO INCREASE IN INSURANCE
The Tenant will not upon the Leased Premises do or permit to be done, or omit to
do anything which shall cause or have the effect of causing the rate of
insurance upon the Shopping Centre or any part thereof to be increased and if
the insurance rate shall be thereby increased, at any time during the Term,
because of the actual use and occupancy of the Leased Premises by the Tenant or
the nature of the Tenant's business, the Tenant shall pay to the Landlord as
Additional Rental the amount by which the insurance premiums shall be so
increased. The Tenant will not store or permit to be stored upon or in the
Leased Premises anything that is not offered or to be offered for sale in the
Leased Premises nor anything of a dangerous, inflammable or explosive nature nor
anything which would have the effect of increasing the Landlord's insurance
costs or of leading to the cancellation of such insurance. In such event the
Landlord may at its option and at the expense of the Tenant enter upon the
Leased Premises and rectify the situation causing such cancellation or rate
increase.
9.03 PAYMENT OF INSURANCE BY TENANT
The Tenant shall pay to the Landlord as Additional Rental hereunder a
proportionate share of the annual aggregate of the premiums for fire, rental,
boiler, liability and similar other insurance upon the Shopping Centre or any
part thereof at any time or times during the Term hereof, such proportionate
share being the proportion that the Area of the Leased Premises bears to the
Gross Leasable Area in the Shopping Centre.
9.04 EVIDENCE OF TENANT INSURANCE
The Tenant agrees to produce to the Landlord, upon demand, evidence of any
insurance it is obligated to maintain under the provisions of the Lease.
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ARTICLE TEN
TENANT ALTERATIONS
10.01 PERMISSIBLE TENANT ALTERATIONS
10.01 The Tenant may at any time and from time to time as its expense, paint and
decorate the interior of the Leased Premises and make such changes, alterations,
additions and improvements, in and to the Leased Premises as will in the
judgment of the Tenant better adapt the Leased Premises for the purpose of its
business; provided, however, that no changes, alterations, additions or
improvements to the structure, any perimeter wall, the store front, the heating,
ventilating, air-conditioning, plumbing, electrical or mechanical equipment or
the concrete floor or the roof or ceiling shall be made without the prior
written consent of the Landlord, or without the use of contractors or other
qualified workmen to be approved by the Landlord, such approval not to be
unreasonable withheld. All changes, alterations, additions and improvements,
whether structural or otherwise, shall comply with all applicable statutes,
regulations or by-laws of any municipal, provincial or other governmental
authority. The Tenant shall pay to the Landlord the amount of the increase for
any insurance coverage and/or realty taxes to the extent that such increase is
directly attributable to any action by the Tenant under this paragraph. At the
end of the Term all changes, alterations, additions and improvements made to or
installed upon or in the Leased Premises and which in any manner are attached
in, to, or under the floors, walls or ceilings shall remain upon and be
surrendered to the Landlord with the Leased Premises as a part thereof, without
disturbance, molestation or injury and shall be and become the absolute property
of the Landlord without any payment or indemnity by the Landlord or any third
party to the Tenant.
10.02 PROHIBITIONS
The Tenant, or its employees, agents or representatives, is expressly prohibited
from entering upon the roof of the Shopping Centre, for any reason whatsoever.
Without limiting the foregoing, the Tenant shall not make any repairs, openings
or additions to any part of the exterior of the Leased Premises, nor place any
attachments, decorations, signs or displays in any mall or on the roof, without
the written consent of the Landlord, failing which the Tenant will be held fully
responsible for all ensuing costs and damages, whether to remove such items or
to effect repairs needed as a result of such acts.
10.03 TENANT INSTALLATIONS
a) The Tenant shall not overload any floor of the Leased Premises nor shall
it hang or suspend from any wall or ceiling or roof or other part of the
Shopping Centre any of its equipment or fixtures.
b) If the Tenant installs any electrical equipment which overloads the
electrical facilities, it shall at its own expense, make whatever changes are
necessary to comply with the requirements of the Governmental authorities having
jurisdiction and of the Insurers of the Shopping Centre, but not until it first
submits to the Landlord plans and specifications for the required work and
obtains the Landlord's written approval to perform same, such approval not to be
unreasonably withheld.
c) The Tenant shall not erect, install, display, inscribe, paint or affix any
sign, lettering or advertising medium to, upon or above the exterior of the
Leased Premises nor to the interior glass surface of any show-window or door.
d) The Tenant shall not install any exterior lighting or awnings or
decorations or painting or erect fences, nor shall the Tenant install any radio
or television antenna, loud speakers, or similar devices on the roof or exterior
walls of the Shopping Centre.
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ARTICLE ELEVEN
HEATING, AIR CONDITIONING
11.01 LANDLORD TO HEAT AND AIR-CONDITION
a) The Landlord shall heat the enclosed Mall during all hours when heat is
necessary. The Landlord shall supply adequate heating in such a manner as to
keep the Leased Premises reasonably warm when it is required and the Tenant
shall pay the utility costs for said heat for their Leased Premises, based on
Tenants hours of operation as outlined in Article 5.04 except during the making
of repairs; but should the Landlord make default in so doing, it shall not be
liable for indirect or consequential damage or damages for personal discomfort
or illness.
b) The Landlord shall supply adequate cooling in such a manner as to keep
same reasonably cool during the months of May to September and the Tenant shall
pay the utility costs for said air-conditioning of the Leased Premises for all
hours when cooling is necessary based on Tenants hours of operation as outlined
in Article 5.04. The Landlord shall air condition the enclosed Mall, except
during the making of repairs; but should be Landlord make default in so doing,
it shall not be liable for indirect or consequential damage or damages for
personal discomfort or illness.
c) Payment for the above services on the part of the Tenant shall be paid by
the Tenant to the appropriate providers of said services.
d) Tenant's electricity and gas shall be separately metered from other
Shopping Centre Tenants. Tenant shall pay said electricity and gas costs, but
Landlord shall pay any costs associated with separately metering Tenant's Leased
Premises if said separate metering is not currently in place.
11.02 INSTALLATION OF SPECIAL EQUIPMENT
Any special or separate or additional ventilating systems and/or heating and/or
air-conditioning capacities required by the Tenant, because of its installations
and/or use of the Leased Premises, in addition to the Landlord's standard
ventilation, heating and air-conditioning systems and/or capacities, shall be
installed and/or paid for by the Tenant, with the design, location and method of
installation of such equipment being satisfactory to, subject to the prior
written approval of the Landlord, such approval not to be unreasonably withheld.
Tenant reserves the right, at their sole cost and expense, to install a
generator and/or UPS system outside of Tenant's Leased Premises; such space
shall be provided at the exterior perimeter of the building or within the
Shopping Centre's exterior parking lot by Landlord for such installation for the
Term of Tenant's Lease at no cost to Tenant.
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ARTICLE TWELVE
UTILITIES, TENANT'S TAXES, REALTY TAX INCREASES
12.01 TENANT'S TAXES AND UTILITIES
a) The Tenant shall pay for its electricity, gas and telephone and all
business taxes, water and garbage taxes, licenses, rates and other charges
levied or assessed on or in respect of or in relation to the business carried on
by and/or the assets of the Tenant within the Leased Premises, including
municipal and school taxes on improvements made by the Tenant to the Leased
Premises, whether such taxes or charges are charged to the Landlord or to the
Tenant. In the event of the Tenant failing to pay for such utilities and/or for
any such taxes, licenses, rates or charges which it has herein covenanted to pay
and which shall constitute a lien or charge upon the Leased Premises or the
contents, or the Shopping Centre, the Landlord, if such default is not cured
after giving ten (10) days notice to the Tenant, may pay all or any of the same
and all of such payments so made shall constitute rental forthwith payable with
interest at the rate of one percent (1%) per annum above the prime rate of Bank
Interest then in effect from the date of each such payment until fully paid;
provided, however, that where there is a bona fide dispute of the amount or
propriety of any payment alleged to be due from the Tenant, and forfeiture will
not result from non-payment, the Landlord shall not pay the same until such
dispute has been resolved by either agreement of the Tenant, or by the decision
of a competent authority whichever is earlier in date; whereupon such period of
ten (10) days will commence on the date of such agreement or decision.
ALLOCATION OF TAXES
b) If a separate allocation of Taxes is not issued by the relevant Taxing
Authority with respect to any Tenant improvement of the Leased Premises, the
Landlord or the Tenant may from time to time apply to the Taxing Authority for a
determination of the Taxes attributable to such Tenant improvement, which
determination shall be conclusive for the purposes of this Article. In the event
that no such determination may be obtained from the Taxing Authority, the
Landlord shall establish the Taxes attributable to such Tenant improvement using
the then current established principles of assessment used by the Taxing
Authority, and if possible, retain for that purpose at its expense an official
of the Taxing Authority, which determination shall be conclusive and binding
between the parties hereto.
TENANT TO REIMBURSE
c) The Tenant agrees to reimburse the Landlord for any of the utilities
and/or Tenant Taxes or share thereof which have been paid by the Landlord for
account or on behalf of the Tenant within then (10) days after being so notified
in writing.
12.02 TAXES
In this Lease, a) TAXES
"Taxes" mean all taxes imposed, levied or assessed upon or in respect of the
Shopping Centre or any portion thereof by any Taxing Authority, and include,
without any limitations, all municipal, school and special taxes, but exclude
the taxes payable by the Tenant pursuant to Article 12.01 hereof;
b) TAXATION YEAR
"Taxation Year" means the year used by each Taxing Authority for the purpose of
levying, imposing or assessing Taxes;
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12.03 PAYMENT OF TAXES BY LANDLORD
Subject as hereinafter provided, the Landlord shall be responsible, in each
Taxation Year, for the payment to the relevant Taxing Authorities of all Taxes
charged in respect of the Shopping Centre.
12.04 PAYMENT OF TAXES BY TENANT
a) The Tenant shall pay to the Landlord a proportionate share of the amount
of Taxes applicable to the Shopping Centre in each Taxation Year, such
proportionate share being the proportion that the Area of Leased Premises bears
to the gross Leasable Area in the Shopping Centre.
b) In the event the Leased Premises are separately assessed, then the Tenant
shall pay all Taxes thereon plus a proportionate share of the amount of Taxes
applicable to the Common Areas and Facilities in each Taxation Year, such
proportionate share being the proportion that the Area of the Leased Premises
bears to the gross Leasable Area in the Shopping Centre.
c) Tenant's proportionate share shall be paid in 12 monthly installments in
advance in an amount and at a time to be established by the Landlord. The
monthly installment should not exceed 1/12th of the Tenant's share for the last
Taxation Year and the time of payment of the last installment should correspond
with the due date for payment of Taxes to the Taxing Authorities for the next
Taxation Year.
d) Upon receipt of all Tax bills attributable to any Taxation Year during the
Term, the Landlord shall furnish the Tenant with a written statement of the
actual amount of the Tenant's proportionate share. If the amount paid by the
Tenant under this section for any Taxation Year shall be less than the actual
amount due from the Tenant for such year, then the Tenant shall pay to the
Landlord the difference between the amount paid and the actual amount due, such
deficiency to be paid within ten (10) days after demand therefor by the
Landlord. If the Total amount paid shall exceed such actual amount due, such
excess shall promptly be refunded by the Landlord to the Tenant.
e) Should the Lease Year commence or expire or be terminated on a different
date than the Taxation Year, all the amounts payable under this Article shall be
apportioned on a per diem basis.
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ARTICLE THIRTEEN
EXCLUSION OF LIABILITY
13.01 PROPERTY OF TENANT
The Landlord, its agents, servants and employees shall not be liable for damage
or injury to any property of the Tenant which is entrusted to the care or
control of the Landlord, its agents, servants or employees, unless caused by
willful act or gross neglect of Landlord.
13.02 DAMAGES OR INJURY TO TENANT
The Landlord, its agents, servants and employees shall not be liable nor
responsible save for its or their own negligence, for any personal or
consequential injury of any nature whatsoever that may be suffered or sustained
by the Tenant or any employee, agent or customer of the Tenant or any other
person who may be upon the Leased Premises or for any loss or damage or injury
to any property belonging to the Tenant, or to its employees or to any other
person while such property is on the Leased Premises, and the Tenant shall
indemnify and save harmless the Landlord from and against any and all manner of
actions or causes of action, damages, loss, costs or expenses which the Landlord
may sustain, incur or be put to by reason of any personal or consequential
injury to any person as aforesaid who may be upon the Leased Premises or any
loss of or damage or injury to any property belonging to any person as aforesaid
while such property is on the Leased Premises, and in particular (but without
limiting the generality of the foregoing) the Landlord shall not be liable for
any damage or damages of any nature whatsoever to any such 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 service or in the event of steam, water, rain or snow which may leak
into, issue or flow from any part of the Shopping Centre or from any other place
or quarter or for any damage caused by anything done or omitted by any tenant,
unless caused by willful act or gross neglect of Landlord, but the Landlord
shall use all reasonable diligence to remedy such condition, failure or
interruption of service when not directly or indirectly attributable to the
Tenant, after notice of same, when it is within its power and obligation so to
do. Nor shall the Tenant be entitled to any abatement of rental in respect of
any such condition, failure or interruption of service.
13.03 DAMAGES FOR ENTRY BY LANDLORD
The Landlord, its agents, servants, employees or contractors shall not be liable
for any damage suffered to the Leased Premises or the contents thereof by reason
of the Landlord, its agents, servants, employees or contractors entering upon
the Leased Premises to undertake any examination thereof or any work therein or
in the case of any emergency, unless caused by willful act or gross neglect of
Landlord.
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ARTICLE FOURTEEN
LEGAL RELATIONSHIP
14.01 RELATIONSHIP OF PARTIES
It is understood and agreed that nothing contained in the Lease nor in any acts
of the parties hereto shall be deemed to create any relationship between the
parties hereto other than the relationship of Landlord, Tenant and, if
applicable, Guarantor.
14.02 SEVERAL TENANTS
Should the Tenant comprise two or more persons each of them, and not one for the
other or others, shall be jointly and severally bound with the other or others
for the due performance of the obligations of the Tenant hereunder, without the
benefits of division and discussion or compensation. Where required by the
context hereof the singular shall include the plural and the masculine gender
shall include either the feminine or neuter genders, as the case may be, and
vice-versa.
14.03 SUCCESSORS ASSIGN ETC.
Subject to the provision of the Lease respecting assignment by the Tenant, this
Lease shall enure to the benefit of and be binding upon the Landlord, its
successors and assigns and the heirs, executors, administrators and other
personal legal representatives, successors and assigns of the Tenant and
Guarantor, if any.
14.04 MANAGEMENT OF SHOPPING CENTRE
The Tenant acknowledges to the Landlord that the Shopping Centre may be managed
or operated by any party other than the Landlord as the Landlord may in writing
designate, and to all intents and purposes any manager of the Shopping Centre,
so designated, shall be the party at the Shopping Centre authorized to deal with
the Tenant. Should the Shopping Centre change ownership or management during the
term of Tenant's lease, this Lease remains in effect and binding to all new
parties to the ownership structure. Tenant shall be notified in writing at the
time of ownership transfer and shall be provided contact information for said
new ownership.
ARTICLE FIFTEEN
LANDLORD'S REMEDIES AND RIGHTS
15.01 LANDLORD'S RIGHT TO RELET IN CASE OF VACANCY
In case the Leased Premises shall be deserted or vacated for a delay of NINETY
(90) days, then, the Landlord shall have the right, if it thinks fit and so long
as it complies with the laws of Ontario, to enter the same, as the agent of the
Tenant either by force or otherwise without being liable to any prosecution
therefore, and to relet the said premises as the agent and at the risk of the
said Tenant and to receive the rent therefor. Landlord to provide notice and
cure of any default before Landlord exercises its remedies by providing 30 days
written notice of Landlord's intent. Said notice shall go to STARTEK CANADA
SERVICES LTD. attn: VP of Real Estate 44 Cook Street Denver CO 80206 OFFICE:
(303)-399-2400 FAX: (303)- 388-9795. Landlord acknowledges that Tenant's
business may be cyclical with ramp-ups and ramp downs of business.
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15.02 REMEDIES OF LANDLORD
If and when the rent hereby reserved shall not be paid on the day appointed for
payment thereof, or in case of non-payment of any other sums which the Tenant,
under any provision hereof has agreed to pay, or in case the said premises shall
be vacated or become vacant or remain unoccupied, or be not used for the
purposes herein permitted, or in case this Lease, or any goods and equipment of
the Tenant, shall be taken in execution or in attachment, or if a writ of
execution shall issue against the goods or equipment of the Tenant; or if the
Tenant shall make an assignment for the benefit of its creditors, or become
bankrupt or insolvent, or take the benefit of any Act that may be in force for
bankrupt or insolvent debtors, or make a proposal, or shall not observe, perform
and keep all and every of the covenants, agreements, provisions, stipulations
and conditions, herein contained, to be observed, performed and kept by the
Tenant or attempt to move its belongings out of the Leased Premises, the full
amount of the current month's rent and the next three (3) months rent shall
immediately become due and payable and the Landlord may immediately distrain for
same together with any arrears then unpaid and this Lease shall immediately, at
the option of the Landlord, become forfeited and determined, and the Landlord,
may, without notice or any form of legal process, forthwith re-enter upon and
take possession of the Leased Premises and remove the Tenant's effects
therefrom, any statute or law to the contrary notwithstanding; the whole without
prejudice to, and under reserve of, all other rights and recourses of the
Landlord to claim any and all losses and damages sustained by the Landlord by
reason of or arising from any default of the Tenant. Landlord to provide notice
and cure of any default before Landlord exercises its remedies.
15.03 PAYMENT OF LANDLORD'S EXPENSES
If at any time an action is brought for recovery of possession of the Leased
Premises, for the recovery of rental or any other amount due under the
provisions of this Lease, or because of a breach by act or omission of any other
covenant herein contained on the part of the Tenant, and a breach is
established, the Tenant shall pay to the Landlord all expenses incurred
therefore, including Attorney's fees.
15.04 RIGHT OF LANDLORD TO PERFORM TENANT COVENANT
a) All covenants and terms herein contained to be performed by the Tenant
shall be performed by it at its expense and if the Landlord shall pay any sum of
money or do any act which requires the payment of money by reason of the
failure, neglect or refusal of the Tenant to perform such covenant or term, or
if the Tenant fails to pay any moneys due by it to the Landlord hereunder, the
sum or sums of money so paid by or owing to the Landlord shall be considered as
Additional Rental and shall be payable by the Tenant to the Landlord on the
first day of the month next succeeding such payment.
b) All sums, in addition to the Minimum Rental payable hereunder by the
Tenant are hereby deemed and declared to be Additional Rental under the terms of
this Lease. If the Tenant shall fail to pay, when the same is due and payable,
any Rent or any Additional Rent, the Landlord shall have the right to charge the
amount due plus interest at an annual percentage rate of 10% for as long as the
overdue account remains outstanding. The foregoing shall not relieve the Tenant
from its obligation to pay the rent and other charges on the respective due
date, nor does it constitute a waiver of any of Landlord's rights and remedies
under the Lease.
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15.05 NO WAIVER BY LANDLORD
a) The subsequent acceptance of rent hereunder by the Landlord shall not be
deemed a waiver of any preceeding breach of any obligation hereunder by the
Tenant other than the failure to pay the particular rent so accepted. The waiver
of any breach of any covenant, term or condition by the Landlord herein shall
not constitute a waiver of any other breach regardless of the knowledge thereof.
b) No covenant, term or condition of this Lease shall be waived except by
written consent of the Landlord and the forbearance or indulgence by the
Landlord in any regard whatsoever shall not constitute a waiver of the covenant,
term or condition to be performed by the Tenant of the said covenant, term or
condition, the Landlord shall be entitled to invoke any remedy available under
this Lease or by law despite such forbearance or indulgence.
c) Any condoning excusing or overlooking by the Landlord of any default,
breach or non-performance by the Tenant at any time or times in respect of any
payment, covenant, agreement, provisions or conditions contained in the Lease
shall not operate as a waiver of the Landlord's rights in respect of any
subsequent and/or continuing default, breach or non-performance nor so as to
defeat or affect in any way the rights of the Landlord herein in respect of any
such subsequent default, breach or non-performance at all times. Time shall be
of and continue to be of the essence of the Lease and of all the covenants,
agreements, provisions or conditions contained in the Lease.
15.06 LANDLORD'S RIGHT OF SEIZURE
Landlord waives any right to a Landlord's lien on the Tenant's property or right
to distrain or otherwise seize said property of Tenant's.
15.07 SERVICE OF PROCESS
Notwithstanding Article 20.01, the Tenant hereby elects domicile at the Leased
Premises for the purpose of service or formal receipt of any writs of summons or
other legal documents in any action or proceeding whatsoever by the Landlord to
enforce its rights hereunder, or any of them.
ARTICLE SIXTEEN
MORTGAGES, ENCUMBRANCES
16.01 LANDLORD'S RIGHT TO MORTGAGE
The rights of the Landlord under this Lease may be hypothecated, mortgaged,
pledged, ceded, charged, transferred or assigned to a purchaser or to an
hypothecary creditor or trustee for bond holders and the Tenant agrees that in
the event of a sale or of a default by the Landlord under any hypothec,
mortgage, trust deed or trust indenture and the purchaser, hypothecary,
creditor, mortgagee or trustee, as the case may be, duly entering into
possession of the Shopping Centre or the Leased Premises, the Tenant agrees to
attorn to and become the Tenant of such purchaser, hypothecary creditor,
mortgagee or trustee under the terms of this Lease. The Tenant requires a
subordination, non-disturbance and attornment agreement form Landlord's existing
lender and any new lender to the property and the Tenant undertakes to pay for
all costs related to said subordination.
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16.02 TENANT MAY NOT ENCUMBER
The Tenant covenants that it will not permit, do, nor cause anything to be done
to the Leased Premises which would allow any privilege, lien, hypothec,
mortgage, pledge, charge or encumbrance of any nature whatsoever to be imposed
or to remain upon the Leased Premises or the Shopping Centre. Notwithstanding
anything herein contained, the Tenant shall not perform, or cause to be
performed, any alterations in the premises, or any repairs thereto, until it has
first received waivers of lien from all contractors, sub-contractors and
suppliers and submitted same to the Landlord.
ARTICLE SEVENTEEN
MISCELLANEOUS
17.01 CAPTIONS
Any captions appearing in the margin of this Lease have been inserted as a
matter of convenience and reference only and in no way define, limit or enlarge
the scope or meaning of this Lease or any provision hereof.
17.02 GOVERNING LAWS
The Lease shall be construed and governed by the laws of the Province in which
the Building is situated. Should any provisions of the Lease and/or of its
conditions be or become illegal or not enforceable under the laws of such
Province, it or they shall be considered separate and severable from the Lease
and its remaining provisions and conditions shall remain in force and be binding
upon the parties hereto though the said provision or provisions or conditions
had never been included.
17.03 EXECUTION OF LEASE
The Landlord shall not be deemed to have made an offer to the Tenant by
furnishing to the Tenant a copy of this Lease with particulars inserted;
notwithstanding that the first installment of minimum rental may be received by
the Landlord when this Lease is received by it for signature, no contractual or
other rights shall exist or be created between the Landlord and Tenant until
such time as all parties to this Lease have executed the same.
17.04 REPRESENTATION BY LANDLORD
The Tenant acknowledges that there have been no representations made by the
Landlord which are not set out in the Lease, and that the Lease constitutes the
entire agreement between the Landlord and the Tenant and may be modified except
as herein explicitly provided or except by subsequent agreement in writing duly
signed by the Landlord and the Tenant and, if applicable, the Guarantor.
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17.05 REGISTRATION OF LEASE
It is an essential condition of this Lease, without which this Lease would not
have been executed by the Landlord, that this Lease shall not be registered at
length but only by memorial and then only after the form and terms of such
memorial have been approved by the Landlord or by its legal counsel. The Tenant
shall pay all costs and expenses involved in the registering of this Lease by
memorial, including the cost of providing the Landlord with a registered copy of
such memorial.
ARTICLE EIGHTEEN
18.01 LANDLORD'S RIGHT TO RELET
The Landlord may at any time within one hundred and twenty (120) days before the
end of the Term enter the Leased Premises and bring others at all reasonable
hours for the purpose of offering the same for rent, and for that purpose the
Landlord may, during such period, place or affix in and upon the Leased Premises
such notices, placards or other advertising materials as the Landlord may deem
suitable.
ARTICLE NINETEEN
19.01 OVERHOLDING TENANT
In the event the Tenant remains in possession of the Leased Premises after the
end of the Term and without the execution and delivery of a new lease, there
shall be no tacit renewal of this Lease and of the Term hereby granted and the
Tenant shall be deemed to be occupying the Leased Premises as a tenant from
month-to-month, subject to a 30-day notice of termination by the Landlord, at a
monthly rent payable in advance on the first day of each month equal to the sum
of (i) the monthly Minimum Rental payable during the last month of the Term of
the Lease and (ii) the Additional Rental herein specified; and otherwise upon
the same terms, conditions and provisions as are set forth in this Lease insofar
as the same are applicable to a month-to-month tenancy.
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ARTICLE TWENTY
20.01 NOTICES AND ADDRESSES
Any notice, demand, request or consent required or contemplated by any provision
of this Lease to be given or made shall be given or made in writing and
delivered or mailed in the case of the Landlord at 8300, Pie-IX, Montreal,
Province of Quebec, H1Z 4E8, or to such address as the Landlord shall designate
from time to time; and delivered, or mailed as aforesaid, in the case of the
Tenant at the address of the Leased Premises. Any such notice, demand, request
or consent shall be conclusively deemed to have been given or made on the day on
which such notice, demand, request or consent is delivered or, if mailed, then
on the next business day following the date of the mailing, as the case may be.
Either party may at any time give notice in writing to the other of any change
of address of the party giving such notice and from and after the giving of such
notice the address therein specified shall be deemed to be the address of such
party for the giving of notices hereunder. All payments required to be made by
this Lease shall be addressed as provided for in this section unless otherwise
directed by the Landlord. All Tenant correspondence shall be directed to:
STARTEK CANADA SERVICES LTD. attn: VP of Real Estate 44 Cook Street Denver CO
80206 OFFICE: (303)-399-2400 FAX: (303)- 388-9795
ARTICLE TWENTY ONE
RULES AND REGULATIONS
21.01 CONDITION OF PREMISES
At the sole cost and expense of the Tenant, the Leased Premises shall be kept in
a clean and sanitary condition in accordance with the laws of the Municipality
and in accordance with all directions, rules and regulations of the health
officer, fire marshal, building inspector or other proper officers of the
Municipality, other agencies having jurisdiction or the insurers of the
Landlord; in the event that the Tenant fails to comply with the foregoing
provisions the Landlord may rectify the situation and collect the expense for
such work from the Tenant in the same manner as provided for in Article 6.02 for
omitted repairs.
21.02 NO NUISANCE
The Tenant shall not use or permit any part of the Leased Premises to be used in
such manner as to cause a nuisance nor to cause or permit annoying noises or
vibrations or offensive odors. The Tenant agrees that the Landlord shall
determine in its own discretion if any such state or condition exists.
21.03 REMOVED/Retail Verbiage
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21.04 OTHER RULES AND REGULATIONS
The Landlord reserves the right to make any such reasonable rules and
regulations as in its judgment may, from time to time, be necessary for the
proper and successful operation of the Shopping Centre as a whole, for the
safety, care and cleanliness of the buildings and for the comfort and
convenience of the tenants thereof and for the preservation and good order in
the building. Such rules and regulations, however, shall not be inconsistent
with the proper enjoyment by the Tenant of the Leased Premises, or with the
terms of the present Lease. They shall be mailed by the Landlord to the Tenant
for Tenant's review prior to Lease execution and shall be deemed to form part of
the present Lease as if recited at length herein and shall be binding upon the
parties thereto.
21.05 PUBLIC ORDER
The Tenant shall at all times abide by all laws, rules, regulations, ordinances,
provisions and requirements, relating to the Shopping Centre or to the Leased
Premises, and shall make a good faith effort to keep the Leased Premises, its
employees and clients under its control so as to prevent the performance of any
acts or the carrying on of any practices which could damage the Shopping Centre
or the Leased Premises or could injure or annoy the other tenants in the
Shopping Centre, their employees or the public.
21.06 RECEIVING OF SUPPLIES
All loading and unloading of supplies, fixtures, equipment and furniture shall
be made at such hours and in accordance with such rules as the Landlord may
prescribe. If the Leased Premises have a rear service door leading to a common
truck receiving area, all loading and unloading of merchandise, etc., shall be
made only through that rear access.
21.07 REFUSE REMOVAL
The Tenant shall not place or leave or permit to be placed or left in or upon
any part of the Shopping Centre outside of the Leased Premises any debris or
refuse except as allowed by the Landlord at specific times of pick up and then
deposited in areas indicated by the Landlord in proper receptacles provided and
placed for that purpose by the Tenant. The Tenant shall pay for the cost of any
garbage and refuse removal service required in addition to that provided by the
Municipality. Furthermore, any litter, debris or refuse placed or left or
dropped in or upon any part of the Shopping Centre outside the Leased Premises
by the Tenant or the customers of the Tenant, or as a result of any of the
merchandising activities of the Tenant, shall be picked and cleaned up by the
Tenant daily, or more often, and in such manner as the Landlord shall determine,
failing which the Landlord may do so at the Tenant's expense.
21.08 HANDLING OF GARBAGE
The Tenant shall keep within its premises, in covered fire-proof and
vermin-proof containers, all trash and garbage until the appointed day for
removal of such, and the Tenant shall not burn or otherwise dispose of any trash
or garbage in or about the Leased Premises or anywhere else within the confines
of the Shopping Centre.
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21.09 PEST EXTERMINATION
The Landlord shall hire and include such cost as additional rent to the Tenant
such pest extermination contractor as the Landlord may direct and at such
intervals as the Landlord may reasonably require.
ARTICLE TWENTY TWO
22.01 EXPROPRIATION
The Landlord shall not be liable for any damage which may be caused to the
Tenant if any part of the Shopping Centre, or of the Leased Premises, is
expropriated or requisitioned for purposes of public utility, or for any other
reason.
ARTICLE TWENTY THREE
23.01 QUIET ENJOYMENT
If the Tenant pays the rent hereby reserved and performs the covenants herein on
his part contained, it shall and may peaceably possess and enjoy the Leased
Premises for the Term hereby granted without any interruption or disturbance
from the Landlord or any other person or persons lawfully claiming by, or from
under it.
ARTICLE TWENTY FOUR
24.01 CADASTRAL DESCRIPTION
WHEREAS the Landlord is the owner of certain lands situated at the intersection
of Spence Avenue and Cartier Boulevard, in the Town of Hawkesbury, Province of
Ontario, which lands are more particularly described as being Parcel 11-8 on
Plan M-18, Town of Hawkesbury, namely that part of Lot 11 as shown on Plan M-18
(Town of Hawkesbury) registered in the Office of Land Titles at l'Orignal and
designated as Part 1 on a plan of survey of record in the said Office as Plan
46R-452, and are herein called the Landlord's lands.
ARTICLE TWENTY FIVE
CONDITION OF THE LEASED PREMISES
25.01 The Tenant represents that it will conduct Leasehold Improvements to the
Premises according to Article 27.
25.01.The Tenant represents that it has examined and viewed the Leased Premises
and declares being satisfied therewith and accepts same in their present
condition. The Landlord does not have any work to be done to the Leased
Premises.
25.02 To Landlord's knowledge there are no hazardous materials or asbestos in or
around the building, not any hazardous materials in the soil. Should any
hazardous materials or asbestos be present, Landlord agrees to remediate
at Landlord's sole cost and expense.
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25.03 To Landlord's knowledge, the Landlord declares that it has not received
any notice of non compliance with respect to the Shopping Center and that
the building is in compliance with all laws with respect to Disabilities
access to the building or similar applicable Canadian laws and Landlord
shall be solely responsible for bringing the building up to compliance
standards with disabilities access to the building.
ARTICLE TWENTY SIX
ADDITIONAL CONDITION
26.01 Provided that this Lease is duly executed by both parties on or before
December 23rd, 2005 and that the Tenant has complied with all provision
hereof, the Tenant shall have access to the Leased Premises on the
Possession Date of February 1st, 2006 for Tenant's Leasehold Improvements.
26.02 REFERRAL FEE: As compensation to Tenant's Representative, Liberty
Greenfield, LLLP (LGF), the Landlord shall pay LGF a referral fee of
C$3.25 per square foot for 41,019 SF, fifty percent (50%) upon the
execution of this present Lease by all parties and the other fifty percent
(50%) upon receipt by the Landlord of the first month's rent.
ARTICLE TWENTY SEVEN
WORK LETTER
27.01 Preliminary Plans/Working Drawings.
(a) Landlord and Tenant designate IA, Interior Architects (the
"Architect") as the architect for the construction of the Tenant Improvements
(as herein defined). Tenant shall be entitled to select the contractor,
subcontractors, suppliers and other contractors in connection with the
construction of the Tenant Improvements; provided, however, Landlord, in its
reasonable discretion, shall be entitled to approve all such selections.
(b) Landlord and Tenant shall consult and cooperate with each other as
necessary to reach agreement regarding schematic designs, performance
requirements and preliminary plans for the Tenant Improvements ("Preliminary
Plans"). The Architect shall prepare the Preliminary Plans and provide the
Preliminary Plans to Landlord and Tenant for approval. Upon receipt of the
Preliminary Plans by Landlord, Landlord and Tenant shall review the Preliminary
Plans and provide written notice to the Architect and the other party of any
objection to the Preliminary Plans, specifying any changes required for such
party's approval. If Landlord or Tenant do not provide written notice of
objection within five (5) days after receipt of the Preliminary Plans, such
party shall be deemed to have approved the Preliminary Plans. Landlord's
objections, if any, must be commercially reasonable.
(c) Upon approval of the Preliminary Plans, Landlord and Tenant shall
consult and cooperate with each other as necessary to reach agreement regarding
the complete construction and engineering plans and specifications for the
construction of the Tenant Improvements (the "Working Drawings"), including,
without limitation, an estimated budget for the cost of the construction of the
Tenant Improvements. The Working Drawings shall be prepared by the Architect and
shall be an evolution and incorporation of the Preliminary Plans. The Architect
shall provide the Working Drawings to the Landlord and Tenant for approval. Upon
receipt of the Working Drawings by Landlord, Landlord and Tenant shall review
the Working Drawings and provide written notice to the Architect and the other
party of any objection to the Working Drawings, specifying any changes required
for such party's approval of the Working Drawings. If Landlord or Tenant do not
provide written notice of objection within five (5) days after receipt of the
Working Drawings, such party shall be deemed to have approved the Working
Drawings. Landlord's objections, if any, must be commercially reasonable.
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(d) In the event either party provides written notice of objection to
the Preliminary Plans or the Working Drawings, then Landlord, Tenant and the
Architect shall cooperate as necessary to reach agreement regarding any
outstanding changes. The Architect shall prepare a revised draft of the
Preliminary Plans or the Working Drawings, as the case may be, as soon as
reasonably possible and submit a revised draft thereof to Landlord and Tenant
for approval. The same procedures and deadlines for review and approval by
Landlord and Tenant shall apply to the revised draft. Landlord's approval of the
Preliminary Plans or the Working Drawings shall not constitute any opinion or
agreement by Landlord or impose any present or future liability or
responsibility on Landlord, except as expressly herein set forth.
27.02. Building Permit. After approval by Landlord of the Working Drawings,
Tenant shall submit the drawings to the appropriate governmental authority for
plan review and issuance of a building permit and any other applicable
governmental approvals. All permit and processing fees shall be paid by Tenant,
subject to reimbursement from the Tenant Improvement Allowances. Tenant shall
diligently pursue obtaining all such approvals and shall provide written updates
to Landlord upon request from Landlord. Landlord will provide at Tenant's
expense all assistance reasonably requested by Tenant to obtain proper permits
and approvals.
27.03 Tenant Improvement Allowance. Except for the Tenant Improvement Allowance,
Tenant shall be responsible, as to both cost and performance, for the Tenant
Improvements. Landlord shall pay up to SIX HUNDRED AND FIFTY THOUSAND
($650,000.00) Canadian Dollars ("Tenant Improvement Allowance") for the costs of
the Tenant Improvements. In the event that the costs of the Tenant Improvements
are less than the Tenant Improvement Allowance, the cost savings shall belong to
Landlord and Tenant shall not be entitled to any payment, refund, credit or
reduction in Basic Rent or other charges due under the Lease.
27.04. Disbursements.
(a) Tenant shall be entitled to disbursements from Landlord from time to
time from the Tenant Improvement Allowance for payment of actual costs incurred
by Tenant for the Tenant Improvements. Tenant shall provide written notice to
Landlord at least twenty-one (21) days prior to the requested date of each such
disbursement, which notice shall include a certified statement by the Architect,
the general contractor and Tenant indicating the proposed date of such
disbursement, the proposed amount of such disbursement and a list of the
contractors, subcontractors and suppliers and the amounts to be paid to such
persons from such disbursement, and a description of the work and supplies which
have been furnished and completed by such persons for such disbursement and
copies of all invoices from such contractors, subcontractors and suppliers or
work and supplies to the Leased Premises. Such certified statement shall be in
the form of an Application for Payment (AIA Forms G702 and G703), said forms to
be provided to Landlord, and shall contain such additional information as may be
required by Landlord. Landlord shall be entitled to make all or part of any
disbursement directly to the Tenant. The Tenant shall be responsible for all
payments to be made to any and all respective contractors, subcontractors and
suppliers of the work and/or suppliers, to the complete exoneration of the
Landlord.
(b) As a condition precedent to each disbursement, there shall have been
no uncured Default by Tenant under the Lease and there shall have been no
mechanic's lien recorded or asserted against Tenant or the Demised Premises with
respect to the Tenant Improvements. As a condition precedent to each
disbursement, Tenant shall furnish to Landlord, at least seven (7) days prior to
such disbursement, mechanic's lien waivers from the contractors, subcontractors
and suppliers as to the payment, work and supplies relating to such
disbursements made hereunder in a form and substance satisfactory to Landlord.
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(c) Upon full satisfaction by Tenant of all conditions required under
this Work Letter for each disbursement and approval thereof by Landlord,
Landlord shall pay to Tenant ninety percent (90%) of the amount of the completed
Tenant Improvements for such disbursement and the remaining balance thereof
shall be held by Landlord until the Final Disbursement (as herein defined).
Tenant shall be responsible for any amounts owed for the Tenant Improvements in
excess of the Tenant Improvement Allowance and any such excess shall first be
paid by Tenant before Landlord shall be obligated to disburse any funds from the
Tenant Improvement Allowance pursuant to any draw requests made hereunder.
(d) The Tenant Improvement Allowance shall not include reimbursement of
any of Tenant's trade fixtures, other fixtures not permanently attached to the
Demised Premises, and other portable machinery and equipment, furniture,
furnishings, merchandise and other miscellaneous movable personal property
placed or installed by Tenant in the Demised Premises.
27.05. Final Disbursement. At such time as Landlord determines that Tenant has
satisfied the following requirements, the remaining balance of the Tenant
Improvement Allowance shall be disbursed by Landlord (the "Final Disbursement"):
(a) the Tenant Improvements have been fully completed by Tenant in accordance
with Section 13 of this Work Letter (including, with limitation, obtaining a
final certificate of occupancy); (b) there are no outstanding amounts owed for
the Tenant Improvements, other than as contained in the final draw request
submitted by Tenant; (c) Tenant has fully completed all punch list items in
accordance with Section 15 of this Work Letter; (d) Tenant has assigned and
delivered to Landlord all warranties, (e) Tenant has delivered to Landlord a
copy of all maintenance and operating manuals; (f) Tenant has delivered to
Landlord a set of field record drawings and specifications reflecting as-built
conditions; and (g) Tenant has otherwise complied with all other conditions
precedent to draws under Section 4 and otherwise under this Work Letter.
27.06. General Conditions. Tenant's construction of the Tenant Improvements
shall comply with the following general requirements, all of which shall be
conditions to each disbursement:
(a) All costs for labor, services and supplies for the Tenant
Improvements shall be at market rates. Tenant shall disclose all costs paid to
affiliates of Tenant.
(b) Tenant and its contractors shall maintain liability, builder's risk,
worker's compensation and such other insurance coverage as reasonably required
by Landlord and Landlord shall be named as an additional insured.
(c) The construction of the Tenant Improvements shall comply in all
respects with all applicable federal, state and local laws, ordinances and
codes. Tenant shall be responsible for all compliance with the Americans With
Disabilities Act (the "ADA") or (International equivalent) relating to or
arising as a result of the Tenant Improvements (which shall be addressed in the
Working Drawings for the Tenant Improvements). Tenant shall also be responsible
for all ADA (or International equivalent) compliance relating to or arising as a
result of any alterations or improvements constructed by Tenant, any specific
uses of the property made by Tenant, any employee of Tenant or any other matter
not required solely in connection with the Base Building, Core and Shell.
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(d) Tenant shall cause its contractors, subcontractors and suppliers to
provide warranties for a period of not less than one (1) year against defects
and workmanship, materials or supplies. Tenant shall promptly assign to
Landlord, on a non-exclusive basis in common with Tenant, all manufacturers' or
other warranties obtained as a part of the Tenant Improvements. Notwithstanding
any provisions to the contrary in the Lease and/or in any Exhibit attached
thereto, the Tenant shall maintain and repair any and all Tenant Improvements
made to the Demised Premises and/or the Leased Premises during the term of this
Lease and any renewal thereof.
(e) Tenant shall maintain the Demised Premises and all surrounding areas
in a clean and orderly condition during the construction of the Tenant
Improvements. Tenant shall not drain or discharge water onto or divert water
from any portion of the Property or any adjacent lands.
(f) Tenant shall coordinate its construction activities with Landlord
and Landlord's contractors to avoid disruption to any other construction on the
Property or the utility and other operations serving the Property. Storage of
Tenant's contractor's construction materials, tools, equipment and debris shall
be confined to the Demised Premises and to any areas which may be designated for
such purpose by Landlord. No work will be done to the exterior of the Demised
Premises without Landlord's prior written approval. Landlord's objections, if
any, shall be commercially reasonable.
(g) Tenant shall provide and pay for all temporary utility facilities
and the removal of debris as necessary and required in connection with the
construction of the Tenant Improvements. Tenant shall not enter into any
contract or agreement with any governmental or quasi-governmental authority with
reference to any utilities, sewer lines, water lines, street improvements or
similar matters, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld.
(h) Tenant will not be responsible for the removal of any of the Tenant
Improvements at or prior to the expiration of the Lease Term. Tenant will have
the right at Lease expiration to remove all of its furniture, fixtures and
equipment including, but not limited to, computer equipment, telephone
equipment, and generator/UPS both within the Leased Premises and as per Section
11.02 of this Lease. All other items permanently attached to the Premises shall
remain in place at Lease expiration, the whole without compensation or indemnity
to the Tenant by the Landlord.
(i) At the expiry of the Term of the Lease, the value of the Leased
Premises shall not, as a result of any of the Tenant's work proposed to be
carried out by the Tenant, be less than the value of the Leased Premises.
27.07. Inspection. Landlord and its supervisory personnel and contractors shall
be entitled to enter the Demised Premises from time to time, with reasonable
verbal notice to Tenant, to inspect the construction of the Tenant Improvements.
Landlord's review of the Tenant Improvements shall be limited to a determination
of Tenant's compliance with its obligations under this Work Letter and shall not
constitute a review of the quality, completeness, safety or legal compliance of
the Tenant Improvements. Neither Landlord's approval of the Preliminary Plans,
the Working Drawings or any application for payment, nor Landlord's inspection
of the Tenant Improvements shall constitute any representation or warranty, or
an assumption of responsibility by Landlord for the accuracy, sufficiency or
condition of the Tenant Improvements. Tenant acknowledges that Tenant shall be
solely and entirely responsible for ensuring that the Preliminary Plans and the
Working Drawings are in conformity with applicable governmental codes,
regulations, rules and other laws, and that the Tenant Improvements will be
suitable for Tenant's intended purpose. Tenant shall be solely responsible for
the accuracy, sufficiency and condition of the Tenant Improvements.
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27.08. Commencement of Construction. Tenant shall construct the Tenant
Improvements for the Demised Premises in accordance with the Working Drawings
(the "Tenant Improvements"). Tenant shall commence construction of the Tenant
Improvements upon the occurrence of the following events: approval of the
Working Drawings by Landlord and Tenant; issuance of the building permit and all
other government approvals required for the construction of the Tenant
Improvements. Tenant shall complete construction of the Tenant Improvements on
or before the Commencement Date of the Lease Term; subject, however, to delays
beyond Tenant's control. Landlord shall pay up to the amount of the Tenant
Improvement Allowance and Tenant shall pay all costs of the Tenant Improvements
in excess thereof.
27.09. Delays. If Tenant shall cause any delay in the construction of the Tenant
Improvements which results in an increase of the cost of the Tenant
Improvements, Tenant shall pay such additional cost. If any changes are required
by any governmental authority which results in an increase in the cost of the
Tenant Improvements in excess of the Tenant Improvement Allowance, then Tenant
shall provide written notice thereof to Landlord. Tenant at its discretion shall
either: (a) modify the Tenant Improvements to eliminate such governmental
requirement or cost overrun, subject to Landlord's approval of such
modification; or (b) Tenant shall pay the additional cost thereof; subject to
Landlord's reasonable approval.
27.10. Change Orders. Tenant may request changes in the Tenant Improvements but
if Landlord incurs any additional costs as a result of such change order which
causes the cost of the Tenant Improvements to exceed the Tenant Improvement
Allowance, Tenant shall pay all such additional costs.
27.11. Governmental Requirements. If any changes to the Tenant Improvements are
required by any applicable governmental authority including, without limitation,
any county or municipal planning or building department, then Landlord and
Tenant agree to modify the Working Drawings and the Tenant Improvements to
either eliminate or comply with the government requirement, in any case, the
Tenant shall pay all such additional costs.
27.12. Construction Fee. Landlord shall not charge a construction fee for the
administering of Landlord's obligations in connection with construction of the
Tenant Improvements. All costs for space planning design, architectural and
engineering services for the Tenant Improvements (including without limitation,
the Preliminary Plans and the Working Drawings) shall be included in the costs
of the Tenant Improvements and may be disbursed by Landlord from the Tenant
Improvement Allowance.
27.13. Completion of Tenant Improvements. A statement from the Architect
certifying the date upon which the Tenant Improvements have been fully completed
shall be conclusive evidence of the completion thereof. The Tenant Improvements
shall be deemed to have been complete when (i) the Tenant Improvements are fully
complete and properly operable (except for customary punch list items) by
execution of Certificate of Completion (AIA Form G704), such form to be provided
to Landlord, certified by the Architect, the general contractor and Tenant, and
approved by Landlord, and (ii) Tenant has obtained a final certificate of
occupancy from the applicable governmental authority. The Lease Term and
Tenant's obligation to pay rentals due under the Lease shall commence upon the
commencement date of the Lease Term which is April 1st, 2006 irrespective of
whether or not the Tenant Improvements are complete, except as a result of any
Landlord delay such as Landlord's non-payment of taxes or utilities or any
liens, mortgages and encumbrances with Landlord not in compliance prior to
February 1, 2006. In no event shall the Lease Term be delayed if there is any
delay in the completion of the Tenant Improvements as a result of any special
equipment, fixtures or materials, changes, alterations, or additions requested
by Tenant, any delay of Tenant in submitting information necessary for the
preparation of the Working Drawings, the failure of Tenant to timely approve or
agree to any matter required for the completion of the Tenant Improvements, any
delay caused by force majeure, any delay caused by any governmental or
quasi-governmental authority, associations or other third-parties, any delay
caused by Tenant, the Architect or any contractors, subcontractors or suppliers,
or any other act or omission of Tenant (collectively the "Tenant Delay").
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27.14. Assumption of Risk. All materials, work, equipment, supplies and Tenant
Improvements of any nature whatsoever brought on or installed in the Demised
Premises hereunder shall be at Tenant's sole risk. Neither Landlord nor any
party acting on behalf of Landlord shall be responsible for any damage thereto
or loss or destruction thereof due to any reason or cause whatsoever, except as
a result of Landlord's gross negligence or willful misconduct.
27.15. Punch List. Notwithstanding substantial completion of the Tenant
Improvements by Tenant, Landlord shall be entitled to provide Tenant with
written notice within thirty (30) days after the commencement date of the Lease
Term of a punch list of minor items which are required for completion of the
Tenant Improvements. Tenant shall complete all such punch list items within
sixty (60) days after receipt of Landlord's notice.
27.16. Tenant's Representative. Tenant has designated Grant Lomas as the sole
representative of Tenant with respect to all approvals, consents and other
matters set forth in this Work Letter. Tenant represents and warrants that such
representative shall have full authority and responsibility to act on behalf of
Tenant as required in this Work Letter. Tenant shall not change such
representative except upon prior written notice and approval by Landlord, which
approval shall not be unreasonably withheld.
27.17. BUILDING AND PREMISES MEASUREMENT STANDARDS
The following standards shall be used to determine the area of the
Building and the Premises subject to this Lease:
Usable Area
The Usable Area of the Premises shall be determined by measuring to the
outside of the finished surface of the Premises at the permanent outer walls of
the Building, corridor walls, and other permanent walls and to the center of
tenant demising walls separating the Premises from adjacent tenant space.
Outside balconies or patios included within the structure of the Building and
accessed solely from the Premises shall be included in the Usable Area of the
Premises. No deductions shall be made for vestibules inside the Building line
(drip line) or for columns and projections accessory to the Building. No
deductions shall be made for vertical penetrations including stairways, elevator
shafts or mechanical chases.
The Usable Area of the Building shall be equal to the sum of all Usable
Areas for all tenants in the Building.
Rentable Area
The Rentable Area of the Building shall be determined by measuring to the
outside of the finished surface of the permanent outer Building wall for each
floor of the Building. Outside balconies and patios included within the
structure of the Building shall be included in the Rentable Area of the
Building. No deductions shall be made for vestibules inside the Building line
(drip line) or for columns and projections accessory to the Building.
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The Rentable Area of the Premises is the Tenant's pro-rata share of the
Building. It shall include the Tenant's Usable Area plus the Tenant's pro-rata
share of all common areas such as restroom facilities, lobbies, corridors,
stairways, mechanical rooms and balconies or patios included within the
structure of the Building. The Rentable Area of the Premises shall be determined
by multiplying the Usable Area of the Premises by the quotient of the division
of the Rentable Area of the Building by the Usable Area of the Building,
resulting in the Rentable/Usable Ratio ("R/U Ratio").
Conversion Formulas
Rentable Area / Usable Area = Rentable/Usable Ration ("R/U Ratio")
Usable Area x R/U Ratio = Rentable Area
Rentable Area / R/U Ratio = Usable Area
IN WITNESS WHEREOF the Parties have executed this Lease at the place and as of
the date hereinabove first written.
AGERS HOLDINGS LTD.
(Landlord)
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Witness Per: Mr. Jordan Aberman
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Witness
STARTEK CANADA SERVICES LTD.
(Tenant)
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Witness Per:
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Witness
Initials
--------------------------
Landlord Tenant
34
EXHIBIT "A"
PLAN OF THE LEASED PREMISES
Initials
--------------------------
Landlord Tenant
35
EXHIBIT "A-1"
PLAN OF THE TEMPORARY PREMISES
[FLOOR PLAN]
Initials
--------------------------
Landlord Tenant
36
EXHIBIT "B"
PLAN OF THE DESIGNATED PARKING AREA
Initials
--------------------------
Landlord Tenant