Document/Exhibit Description Pages Size
1: 10-K Annual Report HTML 747K
2: EX-10.15 Material Contract 62 229K
3: EX-10.17 Material Contract 2 13K
4: EX-10.18 Material Contract 2 13K
5: EX-10.19 Material Contract 3 17K
6: EX-10.20 Material Contract 2 14K
7: EX-10.21 Material Contract 7 30K
8: EX-10.32 Material Contract 5 16K
9: EX-10.33 Material Contract 5 18K
10: EX-10.34 Material Contract 4 13K
11: EX-10.35 Material Contract 4 13K
12: EX-21.1 Subsidiaries of the Registrant 2± 9K
13: EX-23.1 Consent of Experts or Counsel 1 9K
14: EX-31.1 Certification per Sarbanes-Oxley Act (Section 302) 2 12K
15: EX-31.2 Certification per Sarbanes-Oxley Act (Section 302) 2 11K
16: EX-32.1 Certification per Sarbanes-Oxley Act (Section 906) 1 9K
EXHIBIT 10.15
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") dated as of JAN. 13, 2003 is made by
and between Trillium Digital Systems Canada, Ltd. ("Sublandlord") and OctigaBay
Systems Corporation ("Subtenant"), who agree as follows:
RECITALS
A. Sublandlord is the tenant under an Office Lease (the "Master Lease")
with 391102 B.C. Ltd. (the "Master Landlord"), which was originally, executed on
March 5, 2001 between the Master Landlord and the Subtenant. The Master Lease,
together with all of its amendments, is attached hereto as Exhibit "A." Under
the Master Lease, Sublandlord leases approximately 35,983 rentable square feet
of office space (the "Premises") located in Suites 300 and 400 of the building
(the "Building") located at 4621 Canada Way, Burnaby, BC.
B. Subtenant desires to sublease from Sublandlord a portion of the
Premises (the "Subleased Premises"), which Subleased Premises are defined as
Suite 300 (entire 3rd floor), 4621 Canada Way, Burnaby, BC and further described
in the Sublease Summary attached hereto. Sublandlord has agreed to sublease the
Subleased Premises to Subtenant on the terms, covenants and conditions stated in
this Sublease, which includes any terms, covenants and conditions in the
exhibits attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Sublease, and for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties, the parties agree as follows:
1. SUBLEASE. Sublandlord hereby subleases to Subtenant and Subtenant
subleases from Sublandlord the Subleased Premises, subject to the terms,
covenants, and conditions contained in this Sublease. Sublandlord and Subtenant
agree that the Subleased Premises contain the rentable area as specified in the
Sublease Summary.
2. TERM. The term of this Sublease shall commence on the "Commencement
Date" set forth in the Sublease Summary and, unless sooner terminated as
provided in the Master Lease, will expire on the "Expiration Date" set forth in
the Sublease Summary.
3. BASIC RENT. Subtenant shall pay to Sublandlord as basic monthly rental
for the Premises the amount set forth in Clause 6 of the Sublease Summary hereto
(the "Basic Rent") in advance of the first day of each month. Basic Rent and
Additional Expenses shall be payable to Sublandlord at the address set forth
above and to the Attention of Lease Coordinator, or at such other places as
Sublandlord may designate in writing.
4. ADDITIONAL EXPENSES. In addition to the Basic Rent, Subtenant agrees to
pay to Sublandlord any additional expenses ("Additional Expenses") identified in
Clause 7 of the Sublease Summary hereto as being the responsibility of
Subtenant.
5. USE. Subtenant agrees to use the Subleased Premises in accordance with
the purposes set forth in Clause 11 of the Sublease Summary hereto, and for no
other purpose.
6. MASTER LEASE. As applied to this Sublease, the words "Landlord" and
"Tenant" in the Master Lease will be deemed to refer to Sublandlord and
Subtenant, respectively, under this Sublease. The covenants, agreements,
provisions, and conditions of the Master Lease -- to the extent that they relate
to the Subleased Premises and to the extent that they are not inconsistent with
the terms of this Sublease -- are made a part of and incorporated into this
Sublease as if recited in full in this Sublease. As between the parties to this
Sublease only, in the event of a conflict between the terms of the Master Lease
and the terms of this Sublease, the terms of this Sublease will control.
6.1. MASTER LANDLORD'S PERFORMANCE. Subtenant recognizes that
Sublandlord is not in a position to render any of the services or to perform any
of the obligations required of Master Landlord by the terms of the Master Lease.
Therefore, despite anything to the contrary in this Sublease, Subtenant agrees
that performance by Sublandlord of its obligations under this Sublease is
conditioned on performance by the Master Landlord of its corresponding
obligations under the Master Lease, and Sublandlord will not be liable to
Subtenant for any default of the Master Landlord under the Master Lease,
provided that the Master Landlord's failure to perform is not related to a
default by the Sublandlord under the Master Lease and further provided that the
Sublandlord is using all commercially reasonable efforts to cause the Master
Landlord to perform such obligations.
6.2 MASTER LANDLORD'S CONSENT. Whenever the consent of the Master
Landlord is required by the Subtenant under the Master Lease, Sublandlord shall
use all commercially reasonably efforts to obtain, at Subtenant's sole cost and
expense, that consent on behalf of Subtenant.
6.3 PRESERVATION OF MASTER LEASE. Sublandlord agrees to perform all
of its obligations under the Master Lease and not to terminate or surrender the
Master Lease voluntarily, or modify the Master Lease in a manner that adversely
affects Subtenant's rights under this Sublease.
7. VARIATIONS FROM MASTER LEASE. As between Sublandlord and Subtenant, the
terms and conditions of the Master Lease are modified as stated below in this
section 7:
7.1 INSURANCE AND CONDEMNATION PROCEEDS. Despite anything contained
in the Master Lease to the contrary, as between Sublandlord and Subtenant only,
in the event of damage to or condemnation of the Subleased Premises, all
insurance proceeds or condemnation awards received by Sublandlord under the
Master Lease will be deemed to be the property of Sublandlord, and Sublandlord
will have no obligation to rebuild or restore the Subleased Premises.
7.2 NOTICES. Any notice required or permitted to be given under this
Sublease shall be in writing and shall be by personal delivery or by mail.
Mailed notices shall be deemed given upon actual receipt at the address
required, or forty-eight (48) hours following deposit in the mail, postage
prepaid, whichever first occurs. At the date of execution of this Lease, the
addresses of Sublandlord and Subtenant are as set forth above. After the
Commencement Date, the address of Subtenant shall be the address of the Premises
and Sublandlord may change its address by giving notice to Tenant in accordance
with this section 7.2.
7.3 AMOUNTS PAYABLE. All amounts payable under this Sublease by
Subtenant are payable directly to Sublandlord.
7.4 "AS-IS." Sublandlord will deliver the Subleased Premises to
Subtenant in their current "as is" condition without warranty of any nature as
to condition or otherwise.
8.1. INDEMNITY BY SUBTENANT. Subtenant agrees to protect, defend,
indemnify, and hold Sublandlord harmless from and against any and all
liabilities, claims, demands, expenses, losses and damages (including reasonable
attorney fees and costs), that may at any time be asserted against Sublandlord
by (a) the Master Landlord for failure of Subtenant to perform any of the
covenants, agreements, terms, provisions, or conditions contained in the Master
Lease that Subtenant is obligated to perform under the provisions of this
Sublease; or (b) any person as a result of Subtenant's use or occupancy of the
Subleased Premises, except to the extent any of the foregoing is caused by the
negligence or willful misconduct of Sublandlord. The provisions of this section
8.1 will survive the expiration or earlier termination of the Master Lease or
this Sublease.
8.2. INDEMNITY BY SUBLANDLORD. Sublandlord agrees to protect, defend,
indemnify, and hold Subtenant harmless from and against any and all liabilities,
claims, demands, expenses, losses and damages (including reasonable attorney
fees and costs), that may at any time be suffered by the Subtenant due to a
failure by the Sublandlord to perform its obligations under this Sublease,
including without limitation, its obligation to maintain the Master Lease in
good standing. The provisions of this section 8.2 will survive the expiration or
earlier termination of the Master Lease or this Sublease.
9. MASTER LANDLORD'S CONSENT: This Sublease and the obligations of the
parties hereunder are expressly conditioned upon Sublandlord obtaining prior
written consent hereto by Master Landlord. Sublandlord shall be responsible at
its sole expense for obtaining such consent. Subtenant shall promptly deliver to
Sublandlord any information reasonably requested by Master Landlord in
connection with Master Landlord's approval of the Sublease.
10. BROKERAGE: Each party warrants and represents for the benefit of the
other that it has had no dealings with any broker or agent in connection with
this Sublease other than Royal LePage Commercial Inc. and Cushman & Wakefield of
Illinois, Inc. representing the Sublandlord and Colliers Macaulay Nicolls Inc.
representing Subtenant.
11. SURRENDER: Upon the expiration of this Sublease, or upon the
termination of the Sublease or of the Subtenant's right to possession of the
Subleased Premises, Subtenant will at once surrender and deliver up the
Subleased Premises, together with all improvements thereon (excepting the
Subtenant's furniture, trade fixtures and equipment and any other improvements
the Subtenant elects at its option to remove), to Sublandlord in good condition
and repair, subject to Clause 14(i) contained in the Sublease Summary.
12. GENERAL PROVISIONS.
12.1 TIME. Time is of the essence with respect to the obligations to
be performed under this Sublease.
12.2 SEVERABILITY. The invalidity of any provision of this Sublease
as determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
12.3 CHOICE OF LAW. This Sublease shall be construed and enforced in
accordance with the laws of the Province of British Columbia.
12.4 BINDING EFFECT. The covenants and agreement contained in this
Sublease shall be binding on the parties hereto and on their respective
successors and assigns to the extent this Sublease is assignable.
12.5 WAIVER. No waiver by Sublandlord or Subtenant of any provision
hereof shall be deemed to be a waiver of such provision or any subsequent breach
of the same or any other term, condition or covenant of this Sublease. No
covenant, term or condition of this Sublease shall be deemed to have been waived
by Sublandlord or Subtenant unless the waiver is in writing signed by such
party.
12.6 ENTIRE AGREEMENT. This Sublease contains all understandings and
agreements of the parties with respect to any matters mentioned herein and
supersedes any prior or contemporaneous agreement or understanding. This
Sublease may be modified in writing only, signed by the parties in interest at
the time of the modification.
12.7 EXHIBITS. All exhibits attached hereto are hereby incorporated
herein and made a part hereof.
12.8 EARLY POSSESSION. Subtenant will be granted early possession of
the Subleased Premises effective the date of the execution of the Sublease by
the Sublandlord and Subtenant and will be responsible for all its obligations
under this Sublease subject to Clause 14(a) contained in the Sublease Summary.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of the
date first written above.
SUBTENANT
By: /s/ James E. Rottsolk
----------------------------------
Title: CEO
SUBLANDLORD
By: /s/ Sunil K. Das
----------------------------------
Title: Worldwide Real Estate Manager
As required under the terms of the Master Lease attached as Exhibit "A," the
undersigned Master Landlord hereby consents to the subletting of the Subleased
Premises described herein on the terms and conditions contained in this
Sublease. This consent shall apply only to this Sublease and shall not be deemed
to be a consent of Master Landlord to any other sublease. Master Landlord herby
represents that (i) the Master Lease is in full force and effect; (ii) neither
Master Landlord nor Sublandlord (referred to as Landlord and Tenant in the
Master Lease) are in breach or default under the terms of the Master Lease; and
(iii) the copy of the Master Lease attached as Exhibit "A" is true and accurate,
and constitutes the entire agreement between Master Landlord and Sublandlord
concerning the Premises (known as the "Leased Premises" under the Master Lease).
Date: __________________________ Master Landlord
391102 B.C. LTD.
By: _________________________________
Title: ______________________________
EXHIBIT "A"
MASTER LEASE, INCLUDING AMENDMENTS
SUBLEASE SUMMARY
1. SUBLANDLORD: Trillium Digital Systems Canada, Ltd.
2. SUBTENANT: OctigaBay Systems Corporation
3. DESCRIPTION OF SUBLEASED PREMISES: Entire 3rd Floor, 4621 Canada Way,
Burnaby, BC
4. RENTABLE AREA OF SUBLEASED PREMISES BY SUBTENANT: 18,593 sq. ft.
5. DEPOSIT: A cheque for Three (3) months Gross Rent inclusive of GST:
$76,998.81 (the "Deposit") payable to the Sublandlord, shall be tendered
within two (2) business days of the execution of the Sublease. The Deposit
will be held by the Sublandlord and applied as provided for herein. The
Deposit is to be credited in payment towards the first and last months
Gross Rent due, inclusive of any applicable Goods and Services Tax. The
remainder shall be held as security until the expiry of the Sublease term
and returned to the Subtenant without deduction within fifteen (15) days
of the expiry of the Sublease term to the extent it has not been applied
on account of any default of the Subtenant.
6. BASIC RENT: The Basic Rent, plus any applicable Goods and Services Tax,
shall be payable monthly in advance by the Subtenant on the first day of
each month during the term to the Sublandlord. The Basic Rent shall be
based on the Rentable Area of the Subleased Premises and measured in a
manner prescribed by the Master Lease. The Basic Rent shall be calculated
as follows:
[Download Table]
May 1, 2003 to October 31, 2003: - Basic Rent Free on 10,000 square
feet
- Gross Rent Free on 8,593 square
feet
November 1, 2003 to October 31, - Ten Dollars ($10.00) per square foot
2004: per annum based on 10,000 square
feet
- Gross Rent Free on 8,593 square feet
November 1, 2004 to December - Ten Dollars ($10.00) per square foot
30, 2006: per annum based on 18,593 square
feet
Note: For the purposes of this Sublease agreement Gross Rent is defined as
Basic Rent plus Additional Expenses as defined in the Sublease.
7. ADDITIONAL EXPENSES: The Subtenant's proportionate share (based on
Rentable Area of the Subleased Premises relative to the Rentable Area of
the entire 3rd and 4th Floor of the Building) of operating costs and
property taxes (including daily in-suite janitorial), currently estimated
at Ten Dollars and Forty-two Cents ($10.42) per square foot for the 2003
fiscal
year, plus Goods and Services Tax, shall be payable by the Subtenant to
the Sublandlord as Additional Expenses as per the terms of the Sublease in
addition to the Basic Rent and shall be calculated as follows:
[Download Table]
May 1, 2003 to October 31, 2003: - Additional Expenses only on 10,000 square
feet
- Gross Rent Free on 8,593 square feet
November 1, 2003 to October 31, - Additional Expenses in addition to Basic Rent
2004: on 10,000 square feet
- Gross Rent Free on 8,593 square feet
November 1, 2004 to December - Additional Expenses in addition to Basic Rent
30, 2006: on 18,593 square feet
8. OTHER EXPENSES: ALL operating expenses will be paid by Sublandlord except
after- hours HVAC to the Subleased Premises, which cost will be borne by
the Subtenant and may be billed directly to the Subtenant pursuant to the
Master Lease.
9. SUBLEASE COMMENCEMENT DATE: MAY 1, 2003.
10. SUBLEASE EXPIRATION DATE: December 30, 2006.
11. USE OF SUBLEASED PREMISES: The Subtenant shall use the Subleased Premises
for general office purposes and a development laboratory. The Subtenant
acknowledges that the Master Landlord has the right under the Master Lease
to restrict certain uses.
12. SIGNAGE: The Subtenant shall be entitled to two (2) entries on the
Building directory as governed in accordance with the Master Lease. All
further signage rights available to the Subtenant shall be pursuant to the
Master Lease.
13. BUILDING HOURS AND ACCESS: Pursuant to the Master Lease
14. OTHER TERMS:
a) Early Possession
Upon execution of the Sublease, the Subtenant shall have access to the
Subleased Premises for the purposes of planning and the construction of
its Leasehold Improvements, installing its wiring and to conduct its day
to day business. During this period, the Subtenant shall not be obligated
to pay any Basic Rent or Additional Expenses, but shall abide by all
other terms of the Master Lease and Sublease.
b) Allowance
The Sublandlord shall pay or the Sublandlord shall provide the authority
to the Master Landlord to pay directly to the Subtenant, as a contribution
towards the cost of the Leasehold Improvements, installed by or on behalf
of the Subtenant, the sum of Twenty-Three Dollars ($23.00) multiplied by
the Rentable Area of the Subleased Premises, plus Goods and Services Tax.
The Leasehold Improvement Allowance shall be paid to the Subtenant on the
Commencement Date of the Sublease Term, provided the Subtenant provides
the Sublandlord with reasonable evidence of expenditure of the Leasehold
Improvement Allowance on improvements that will benefit the Subleased
Premises.
c) Sublandlord's Work
The Sublandlord shall provide the Subleased Premises in a clean, vacant
and broom swept condition.
d) Leasehold Improvements
The Subleased Premises are leased on an "as is" basis. Any alterations the
Subtenant wishes to carry out shall comply with the terms of the Master
Lease and Sublease and the Subtenant shall obtain any applicable approvals
of the local Municipal Authority and of the Master Landlord's architects,
mechanical, electrical and structural consultants, at the Subtenant's
cost.
e) Sublandlord's Options and Rights
The Sublandlord waives and agrees not to exercise the following options
and rights from the Master Lease pursuant to the 3rd floor of the
Building: Option to Renew and Right of First Refusal to Lease.
f) Right Of First Refusal To Sublease Adjoining Space
Provided the Subtenant has not been in material breach of the Sublease,
the Sublandlord hereby grants to the Subtenant the right of first refusal
to lease, during the Sublease Term, any portion of the Fourth (4th) floor
of the Building that becomes available to be subleased on the terms and
conditions of a bona fide offer to sublease acceptable to the Sublandlord.
The Sublandlord shall deliver a true copy of any such bona fide offer to
the Subtenant. The Subtenant shall have five (5) business days from such
delivery within which to exercise this Right of First Refusal to sublease
the offered space. This right may only be exercised, within such time, by
the Subtenant delivering notice in writing of acceptance to the
Sublandlord whereupon a binding agreement to sublease such premises shall
exist between the Sublandlord and Subtenant on the terms and conditions
contained in the said bona fide offer.
If the Subtenant does not exercise its right to sublease the adjoining
premises, such premises may thereafter be Subleased by the Sublandlord to
the person identified in said bona fide offer and subject to the terms and
conditions contained therein, but not otherwise, and failing subleasing as
aforesaid the provisions of this section shall remain in force.
g) Parking
The Sublandlord shall provide, at the Subtenant's cost, up to Seventy Four
(74) random or reserved parking stalls in the Building at the prevailing
market rates. The Subtenant shall specify the number of parking stalls it
requires prior to the Commencement Date. The rental rates for stalls are
subject to adjustment to comparable parking rates in the area and shall be
paid directly to the Master Landlord or its agent.
h) Sub-Sublease/Assignment
The Sublandlord acknowledges and agrees that the Subtenant, at anytime
throughout the Sublease term, may assign this Sublease or Sub-Sublease the
Subleased Premises. Written consent for any Sub-Sublease or Assignment
shall be given by the Sublandlord within five (5) business days of
receiving a letter of request to consent from the Subtenant and if no
consent has been received during this period of time by the Subtenant then
such consent shall have been deemed to have been given by the Sublandlord.
Notwithstanding the above, the Subtenant may not assign the Sublease or
Sub-Sublease the Subleased Premises without obtaining the consent of the
Master Landlord in accordance with the Master Lease.
i) Restoration of Subleased Premises
The Subtenant shall have no obligation to restore the Subleased Premises
to shell condition at the end of the Sublease term.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease Summary as of
the date first written in the Sublease.
SUBLANDLORD
By: /s/ Sunil K. Das
--------------------------------
Title: Worldwide Real Estate Manager
SUBTENANT
By: /s/ James E. Rottsolk
--------------------------------
Title: CEO
- 1 -
CONSENT TO SUBLETTING
THIS AGREEMENT dated the 20th day of January, 2003.
AMONG
391102 B.C. LTD. AND
DOMINION CONSTRUCTION AND DEVELOPMENT INC.
c/o Touchstone Property Management Ltd.
Suite 107 - 4585 Canada Way
Burnaby, British Columbia V5G 4L6
(the "Landlord")
AND:
TRILLIUM DIGITAL SYSTEMS CANADA, LTD.
c/o Trillium Digital Systems Inc.
12100 Wilshire Boulevard, Suite 1800
Los Angeles, California, USA 90025
(the "Sublandlord")
AND:
OCTIGABAY SYSTEMS CORPORATION
8644 Commerce Court
Burnaby, British Columbia, V5A 4N6
(the "Subtenant")
AND:
INTEL CORPORATION
4501 South Dobson Road, OC2-151
Chandler, Arizona, USA 85048
(the "Indemnifier")
- 2 -
WHEREAS:
(A) By a Lease made the 5th day of March, 2001 (the "Lease"), the Landlord did
demise and lease to the Sublandlord those premises being more particularly
described in Schedule A attached to the Lease (the "Leased Premises") for a term
of Five (5) years (the "Term") commencing on January 1, 2002and expiring on
December 31, 2006, upon the terms and conditions contained in the Lease;
(B) Pursuant to a sublease made the 13th day of January, 2003 (the "Sublease")
the Sublandlord has agreed to sublease the Leased Premises to the Subtenant
effective the 1st day of May, 2003 on the terms and conditions contained in the
Sublease, subject to the consent of the Landlord thereto as required under the
Lease;
(C) By an indemnity agreement made the 5th day of March, 2001 (the "Indemnity
Agreement") the Indemnifier agreed with the Landlord to indemnify the
Sublandlord's obligations under the Lease on the terms and conditions contained
in the Indemnity Agreement;
(D) The Landlord has agreed to consent to the Sublease on the terms and
conditions contained herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the Landlord's
consent herein contained and other good and valuable consideration, the parties
agree as follows:
1. The Landlord hereby consents to the subletting of the Leased Premises by
the Sublandlord to the Subtenant pursuant to the terms of the Sublease for
a term commencing on the 1st day of May, 2003 and expiring on the 30th day
of December, 2006 (the "Sublease Term"), subject to the performance and
observance of the terms, covenants and conditions in the Lease (save only
for payment of Minimum Rent reserved in the Lease) and subject to the
Subtenant using the Leased Premises only for the purposes permitted by the
Lease. This consent is given upon the basis that the Landlord does not
acknowledge or approve of any of the terms of the Sublease between the
Subtenant and the Sublandlord except for the said subletting itself.
2. The Subtenant hereby confirms that it accepts the current state of repair
of the Leased Premises and covenants and agrees with the Landlord to
observe, comply with and perform all terms, covenants and conditions in
the Lease insofar as they are applicable to the Leased Premises during all
of the Sublease Term and any renewals or extensions thereof (save only for
payment of the Minimum Rent reserved therein) as and when the same are to
be performed by the tenant thereunder pursuant to the terms of the Lease,
including without limitation, all of the repair and restoration
obligations set forth in the Lease arising after the commencement of the
Sublease Term. The Subtenant acknowledges that it has received and
reviewed a copy of the Lease.
"NOTWITHSTANDING THE ABOVE, THE SUBLANDLORD ACKNOWLEDGES THAT THE
SUBTENANT SHALL HAVE NO OBLIGATION TO RESTORE THE SUBLEASED PREMISES TO
SHELL CONDITION AT THE END OF
- 3 -
THE SUBLEASE TERM AND WILL INDEMNIFY THE SUBTENANT OF THESE OBLIGATIONS
ACCORDINGLY."
3. This Agreement shall in no way affect or release the Sublandlord from its
liabilities and responsibilities under the Lease, notwithstanding the
Landlord's grant of consent to the Sublease, which is given without
prejudice to the Landlord's rights under the Lease. The Sublandlord hereby
acknowledges and agrees with the Landlord that it shall remain liable to
the Landlord in respect of all the terms, covenants and conditions in the
Lease on the part of the tenant to be observed and performed including,
without limiting the generality of the foregoing, the payment of all Rent
due to the Landlord under the Lease:
4. This Agreement shall not be deemed to authorize any further assignments or
subletting or parting with or sharing possession of the Leased Premises or
any part thereof without the further consent of the Landlord as required
under the Lease.
5. The Subtenant hereby covenants and agrees with the Landlord not to assign
this Agreement, or sublet or otherwise part with or share possession of
the Leased Premises or any part thereof, without the prior written consent
of the Landlord. In no event shall any such consent release (or be deemed
to release) the Subtenant in any regard whatsoever from any of its
obligations or liabilities under or pursuant to this Agreement, unless
agreed otherwise in writing by the Landlord in such consent.
6. The Subtenant hereby covenants and agrees with the Landlord that in no
event shall the Landlord be:
(a) liable to the Subtenant for any act, omission or circumstances of
the Sublandlord; or
(b) subject to any set-offs or defences that the Subtenant might have as
against the Sublandlord.
7. Notwithstanding the Landlord's grant of consent herein, the Sublease
shall, at the option of the Landlord, terminate if the Lease shall
terminate pursuant to the terms thereof or by operation of law or by
re-entering and termination by the Landlord for breach of the Lease. In
the event of such termination, the Subtenant shall deliver up the Leased
Premises to the Landlord in compliance with all of the provisions of the
Lease and in the condition required under the Lease.
8. The Sublandlord and the Subtenant hereby covenant and agree with the
Landlord that all monies owing by the Subtenant to the Sublandlord under
the Sublease in respect of the Leased Premises shall, at the sole option
of the Landlord, be paid directly by the Subtenant to the Landlord, if so
directed by the Landlord in writing. All payments received by the Landlord
pursuant to this Section shall be credited by the Landlord as against the
amounts payable by the Sublandlord to the Landlord under the Lease.
9. The Sublandlord covenants and agrees to pay to the Landlord any and all
excess rent, monies or other consideration received from the Subtenant
under the Sublease over and
- 4 -
above the Rent payable by the Sublandlord to the Landlord under the Lease
upon receipt thereof from the Subtenant.
10. The Sublandlord and the Subtenant shall jointly and severally be liable
for and shall indemnify the Landlord against all legal costs incurred by
the Landlord with respect to the subletting referred to herein and the
Landlord's consent with respect thereto.
11. The Indemnifier covenants and agrees with the Landlord that its
indemnification of the Sublandlord's obligations under the Indemnity
Agreement shall continue in full force and effect notwithstanding the
Landlord's grant of consent herein and the Indemnifier shall continue to
be bound to the Landlord on the terms and as provided in the Indemnity
Agreement.
12. This Agreement shall be governed by and construed in accordance with the
laws of the Province in which the Building is situated and the federal
laws of Canada applicable therein.
13. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, administrators, personal
representatives, successors and permitted assigns.
14. Words and phrases used in this Agreement shall have the same meanings
ascribed to them in the Lease unless otherwise specifically defined
herein.
15. This Agreement is not personally binding upon and that resort shall not be
had to, nor shall recourse or satisfaction be sought from, the private
property of the unitholders of Investors Real Property Fund (the "Fund"),
trustees, directors, officers, employees or agents of the trustee or
manager of the fund, it being intended and agreed that only the property
of the Fund shall be bound by this Agreement.
- 5 -
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
391102 B.C. LTD.
Per: /s/ Donald J. MacDonald
-----------------------------
Authorized Signatory
Donald J. MacDonald, Assistant Secretary
Per: /s/ Murray J. Mitchell
------------------------------
Authorized Signatory
Murray J. Mitchell, Vice President
DOMINION CONSTRUCTION & DEVELOPMENT INC.
Per: /s/ Vance Hackett
--------------------------------
Authorized Signatory
OCTIGABAY SYSTEMS CORPORATION
Per: /s/ James E. Rottsolk
--------------------------------
Per:
--------------------------------
TRILLIUM DIGITAL SYSTEMS CANADA, LTD.
Per: /s/ Sunil K. Das
--------------------------------
Sunil K. Das
Per: ---------------------------------
Worldwide Real Estate Manager
INTEL CORPORATION
Per: /s/ Sunil K. Das
---------------------------------
Per: Sunil K. Das
---------------------------------
Worldwide Real Estate Manager
LEASE AGREEMENT BETWEEN:
Dominion Construction Company Inc. and 391102 B.C. Ltd.
("LANDLORD")
AND:
Trillium Digital Systems Canada, Ltd.
("TENANT")
AND:
Intel Corporation
("GUARANTOR")
PREMISES: Unit #_____ , being 35,983 Square Feet at 4621
Canada Way, Canada Way Business Park, Burnaby, B.C.
TERM OF LEASE: Five Years
Dominion/Investors/Trillium Lease Kuhn & Company
LEASE
THIS LEASE dated March 5, 2001, is made and entered into by the Landlord and
Tenant who, after receiving all required advice, and in consideration of the
rents and covenants contained herein, agree as follows:
ARTICLE 1
BASIC TERMS AND DEFINITIONS
1.1 BASIC TERMS.
(a) (i) Landlord: Dominion Construction Company Inc.
("Dominion") (as to an undivided 1/4
interest) and 391102 B.C. Ltd. ("Investors")
(as to an undivided 3/4 interest)
(ii) Address of Landlord: Dominion: Suite 300, 555 Burrard Street
Two Bentall Centre,
Vancouver, British Columbia
V7X 1S9; and
Investors: 447 Portage Avenue, Winnipeg,
Manitoba, R3C 3B6
(iii) Contact Numbers: Dominion:
Telephone: (604)631-1000
Facsimile: (604)631-1054
Investors:
Telephone: (204)956-8545
Facsimile: (204)942-1931
(iv) Contact Person: Dominion: Peter Duyker
Investors: Maurice Toutant
(b) (i) Tenant (legal name): Trillium Digital Systems Canada, Ltd.
(ii) Address of Tenant: Trillium Digital Systems Inc.
12100 Wilshire Boulevard, Suite 1800
Los Angeles, CA 90025
Tel: (310)481-7831(Bus.)
Fax: (310)442-1162
(iii) Individual to contact: Ron Vaisbort
(c) (i) Guarantor(s): Intel Corporation
(ii) Address of
Guarantor(s): 4501 South Dobson Road, OC2-151,
Chandler, Arizona, USA 85048
Tel: (480)715-5094 (Bus.)
Fax: (480)715-7340
(iii) Individual to contact: Nancy Ward, Lease Administration
Dominion/Investors/Trillium Lease Kuhn & Company
- 2 -
(d) Premises: Full 3rd and 4th floors of the Building as
shown outlined in heavy black on the plan
attached as Schedule "A", with the municipal
address:
4621 Canada Way, Canada Way Business Park,
Burnaby, British Columbia
(e) Floor Area of
the Premises: Third Floor 18,593 sq.ft., more or less
Fourth Floor 17,390 sq.ft., more or less
TOTAL 35,983 sq.ft., more or less
(f) Term Five years
(g) Commencement Date: The Term will commence on the 1st day of
January, 2002
(h) Minimum Rent: (based on $ 19.30 per sq.ft.)
Year of the Term Per Sq.Ft. Per Annum Per Month
---------------- ---------- --------- ---------
Years 1 to 5 $ 19.30 $694,471.90 $ 57,872.69
(i) Permitted Business: For the purpose of an office and laboratory
for the conduct of the Tenant's or
Guarantor's business or such other use as may
be approved by the Landlord, acting
reasonably, but not any use that would be
contrary to any other tenant's lease with the
Landlord.
Under the Business Name of the Tenant or Guarantor.
(j) Security Deposit: $ N/A of which $ N/A will be applied to the first
month's Rent.
(k) Premises Preparation
Period: 90 days, commencing April 1,2001 and ending
June 30,2001 (subject to Sections 2.4 and
2.5).
(l) Parking Entitlement: 4 unreserved stalls for each 1000 square feet
rentable area of Premises leased by the Tenant pursuant to this
Lease.
1.2 DEFINITIONS:
Capitalized terms or expressions have the following meanings:
1.2.1 "ADDITIONAL RENT" means any money other than Minimum Rent required
to be paid by the Tenant under this Lease, whether or not the same be designated
as Rent or whether the same be payable to the Landlord or otherwise.
1.2.2 "ADDITIONAL SERVICES" means the services, labour, material and
supervision supplied by the Landlord and referred to in this Lease as Additional
Services; any other services which from time to time the Landlord supplies to
the Tenant and which are additional to other services that the Landlord has
agreed to supply pursuant to this Lease or that the Landlord may elect to supply
as included within the standard level of services available to tenants generally
and in addition to those normally supplied; the provision of labour and
supervision in connection with the moving of any furniture or equipment of the
Tenant; the making of any repairs, improvements, or alterations for the Tenant;
and the provision to the Tenant or the Premises of maintenance or other services
not normally furnished to tenants or other
Dominion/Investors/Trillium Lease Kuhn & Company
- 3 -
premises generally.
1.2.3 "BUILDING" means that certain office building having an approximate
Floor Area of 73,692 square feet (inclusive of all areas, improvements,
amenities, equipment and apparatus therein) constructed on a portion of the Land
consisting of tenanted areas, and any additions or replacements thereto from
time to time, in which the Premises are located, and which together with the
Land and all other buildings and improvements constructed or to be constructed
on the Land and adjoining lands and premises is hereinafter called the "Business
Park". It is intended by the Landlord that Phase II of the Business Park will in
due course consist of the Building and two other buildings (Building "A" having
an approximate Floor Area of 86,576 square feet and Building "C" having an
approximate Floor Area of 70,322 square feet), in addition to Phase I, being a
building comprising Floor Area of 96,637 square feet and related facilities and
areas. Phase II of the Business Park will also consist of a 756 vehicle
underground parking structure and 98 metered surface parking stalls.
1.2.4 "BUILDING HOURS" means the hours from 8:00 a.m. to 6:00 p.m. Monday
to Friday, inclusive, of each week, holidays excepted.
1.2.5 "COMMON AREAS AND FACILITIES" means those areas, facilities,
utilities, improvements, equipment and installations which, from time to time:
(i) are not designated or intended by the Landlord to be leased to tenants of
the Building; (ii) are designated by the Landlord to serve or benefit the Land
and Building; (iii) are designated by the Landlord as part of the Common Areas
and Facilities; (iv) are provided or designated by the Landlord for the use or
benefit of the Tenant, their employees, customers and other invitees in common
with others entitled to the use or benefit thereof, as permitted by this Lease,
and which may be changed from time to time. Without limitation, Common Areas and
Facilities include roofs and roof membranes, exterior wall assemblies including
weather walls, exterior and interior structural elements and bearing walls and
the foundations and footings of the Building; parking areas; common entrances or
exits; lobbies; access roads; driveways and truckways; delivery passages;
mechanical, electrical or automatically operated doors; loading docks and
related areas and equipment; pedestrian sidewalks; landscaped and planted areas;
service areas; corridors; equipment, furniture, furnishings and fixtures;
storage facilities; stairways, hoists, ramps, elevators and other transportation
equipment and systems; fire prevention or response systems, security and
communication systems; public washrooms; pylon and other general signs and
information facilities; public telephones; columns; pipes; electrical, plumbing,
drainage, mechanical, heating, ventilating and air conditioning and all other
installations, equipment or services located in the Building as well as the
structures housing the same.
1.2.6 "COST OF ADDITIONAL SERVICES" means (i) in the case of Additional
Services provided by the Landlord, a reasonable charge made therefor by the
Landlord which shall not exceed the cost of obtaining such services from
independent contractors and (ii) in the case of Additional Services provided by.
independent contractors, the Landlord's total cost of providing Additional
Services to the Tenant, including the cost of all labour, salaries, wages and
fringe benefits, materials and other direct expenses incurred, and a reasonable
charge by the Landlord for the cost of supervision and other indirect expenses
capable of being allocated thereto.
1.2.7 "FLOOR AREA" whether in the case of a whole floor of the Building or
in the case of premises comprising part of a floor of the Building, shall be
determined by the Landlord's architect or land surveyor, as determined by the
Landlord from time to time and be the area measured in accordance with the
Building Owners and Managers Association ("BOMA") standard of measurement
(1996).
1.2.8 "FLOOR AREA OF THE BUILDING" means the aggregate, from time to time,
expressed in square feet, as certified by the Landlord's surveyor or architect,
as determined by the Landlord from time to time, in accordance with the BOMA
standard of measurement (1996) of the Floor Areas of all leasable premises
(including the Premises) of the Building, whether rented or not.
1.2.9 "INSURABLE HAZARDS" means fire and other perils for which insurance
is available and which a reasonably prudent Landlord would obtain in similar
circumstances.
1.2.10 "LAND" means all and singular those certain parcels or tracts of
land, situate, lying and being in the Municipality of Burnaby, Province of
British Columbia, and currently more particularly described as:
Dominion/Investors/Trillium Lease Kuhn & Company
- 4 -
Parcel Identifier 018-651-721
Lot A, Block 2, District Lot 73, Group 1
New Westminster District Plan LMP14893
or as the boundaries or the legal description of the land may be varied from
time to time.
1.2.11 "LEASE YEAR" means a twelve (12) month period, commencing with the
first day of January in one calendar year and ending on the last day of December
in that calendar year; providing that the first Lease Year shall commence on the
Commencement Date of the Term and end on the last day of December in the
calendar year of the Commencement Date of the Term and the last Lease Year shall
end on the last day of the Term of this Lease and commence on the first day of
January preceding that date.
1.2.12 "OPERATING COSTS" means WITHOUT DUPLICATION the total of all
expenses, costs, fees, rentals, disbursements and outlays of every nature and
kind incurred, accrued, paid, payable or attributable, whether by or on behalf
of the Landlord for operating, managing, owning, maintaining, servicing,
repairing, restoring, renewing, improving, equipping, insuring, cleaning,
lighting, securing, policing, supervising, managing and administering the
Building and the Common Areas and Facilities, Land or any portion thereof in
each Lease Year, calculated as if the Building was fully occupied and fully
operational at all times during the Term, and irrespective whether such expenses
are incurred by or on behalf of tenants of premises in the Building with whom
the Landlord may from time to time have agreements whereby in respect of their
premises such tenants perform any cleaning, maintenance or other work or
services usually performed by the Landlord, and which expenses if directly
incurred by the Landlord would have been included in Operating Costs. Without
limitation, Operating Costs shall include the following costs and expenses:
(a) the cost of obtaining and maintaining insurance coverage
(including related expenses and deductibles payable) on the
Building, and the Common Areas and Facilities;
(b) the cost of cleaning (including window cleaning) and
janitorial services and all supplies; landscaping, gardening,
snow and ice removal; garbage and waste collection and
disposal; the cost of all gas, oil, electricity, lighting,
telephone and other communications, water, sewer, heating,
ventilating and air-conditioning and other utilities and
services supplied to or in connection with the Building and
the Common Areas and Facilities; the cost of security,
supervision, traffic control and parking facilities for the
Building and the Common Areas and Facilities; the cost of
repairing and restriping parking areas and roadways; all costs
paid or incurred by the Landlord in installing energy
conservation equipment and in complying with energy
conservation laws and regulations or upgrading to comply with
the requirements of (i) any existing or future municipal or
fire law, bylaw or regulation which applies to the Land and
Building or any part thereof or (ii) any insurer of the Land
and Building; all costs of leasing, operating, maintaining,
repairing, servicing and replacing any pylon sign(s) or other
exterior sign(s), directory boards and information facilities
erected on the Land and Building;
(c) the wages, salaries and expenses of employees (including
contributions and premiums towards fringe benefits,
unemployment and Workers'Compensation insurance, pension plan
and similar premiums and contributions) and termination
severance costs, and fees and expenses paid to obtain and
discharge the services of independent contractors engaged in
the operation, servicing, maintenance, repair, replacement,
security and administration of the Land and Building;
(d) the cost of consultant's, accountants and engineer's fees for
the determination and apportionment of Operating Costs;
(e) the amounts payable by the Landlord for the control,
management, maintenance, and administration of the Land,
Building and the Common Areas and Facilities or any portion
thereof in each Lease Year;
(f) the cost of all corporate capital, business, machinery or
other taxes, charges and licence fees which are
Dominion/Investors/Trillium Lease Kuhn & Company
- 5 -
levied against the Landlord or which are not directly levied
against or payable by any tenant or occupier of the Building
individually (provided that such cost shall be computed by the
Landlord's accountant (whose decision shall be final and
binding on the parties) on the basis that the Landlord's sole
assets are the Land and Building;
(g) the cost of, WITHOUT DUPLICATION, operating, servicing,
maintaining, repairing (including major repairs), improving,
replacing and acquiring all machinery, equipment and fixtures
used in or kept on or about the Building, Land, or the Common
Areas and Facilities which may require periodic or substantial
replacement, including without limitation, elevators, heating,
ventilating and air conditioning systems and equipment;
plumbing, electrical (including light bulbs, ballasts, tubes,
starters and fixtures, pylon signs and sound equipment and
systems); roofing and waterproofing, garbage, storage and
service room equipment and machinery; communication equipment
and systems; maintenance, janitorial and cleaning equipment
and machinery;
(h) depreciation or amortization at generally accepted commercial
rates, WITHOUT DUPLICATION, on (i) all fixtures, machinery,
equipment and apparatus forming part of or serving the Common
Areas and Facilities or the Building and (ii) the cost of all
repairs or replacements required to be performed by the
Landlord unless they are charged or chargeable fully in the
Lease Year in which they are incurred or in which such
fixtures, machinery, equipment or apparatus are acquired, in
accordance with generally accepted accounting principles as
reasonably determined by the Landlord;
(i) the costs and expenses referred to in article 1.2.12(h) shall
also include, without duplication, an annual contribution to a
contingency reserve fund (the "Contingency Reserve Fund") for
expenditures for attending to major repairs and replacements
(other than regular expenditures incurred on a monthly or
annual basis and other than structural repairs and
replacements) the cost of which is not included in the items
listed elsewhere in article 1.2.12 that may occur from time to
time throughout the economic life of the Building. The
Landlord may, from time to time, use such portion of the
Contingency Reserve Fund as it, in its sole discretion,
determines advisable or necessary towards attending to major
repair and replacement of the various components of the Lands
and Building. The Tenant acknowledges that contributions to
the Contingency Reserve Fund are for attending to major
repairs and replacements and may not be applied in the Lease
Year in which they are collected from the Tenant and other
tenants of the Building. The Tenant shall be entitled to a
statement of the amount of such Contingency Reserve Fund and
the Tenant's Proportionate Share thereof (determined in the
manner set out in article 6.1(a) together with a statement of
any expenditures made from the Contingency Reserve Fund. At
the expiration or earlier termination of this Lease the Tenant
shall have no claim against the Contingency Reserve Fund.
(j) all costs and expenses not otherwise expressly excluded in
this Lease but attributable to the operation, maintenance,
replacement, repair, supervision, management, ownership and
administration of the Building, Land and the Common Areas and
Facilities;
(k) an administration fee which when combined with the items set
out in article 1.2.12(e) hereof shall in total not exceed five
(5%) percent of all Rent, excluding Operating Costs, payable
by all tenants of the Building to the Landlord.
THERE SHALL BE NO DUPLICATION OF COSTS IN DETERMINING THE AMOUNT OF OPERATING
COSTS PAYABLE BY THE TENANT. In particular, there shall not be included in
Operating Costs either the costs of replacing or repairing any part of the Land
or Building if such costs would normally be paid from the Contingency Reserve
Fund or any depreciation or amortization charge in respect of any repair or
replacement of any part of the Building if the cost of such repair or
replacement is included in Operating Costs or would normally be paid from the
Contingency Reserve Fund.
1.2.13 "PREMISES" means that portion of the Building having the municipal
address and located on the floor(s) set out in article 1.1(d), containing the
approximate Floor Area set forth in article 1.1(e) and having the approximate
location and configuration shown outlined in heavy black on Schedule "A" hereto.
Dominion/Investors/Trillium Lease Kuhn & Company
- 6 -
1.2.14 "PREMISES PREPARATION PERIOD" subject to Section 2.3 and 2.4, means
the period of time set out in article 1.1(k) during which the Tenant shall have
possession of the Premises for purposes of completing its leasehold
improvements, moving its business and its Trade Fixtures into the Premises and
during which time the Tenant shall comply with all other terms of this Lease
except the Tenant shall not be obliged to pay Minimum Rent or Operating Costs to
the Landlord.
1.2.15 "RENT" means all amounts payable by the Tenant, including without
limitation, Minimum Rent (as set out for the Term in Section 3.1) and Additional
Rent. All monies payable pursuant to this Lease, whether as Rent or otherwise,
shall be paid in Canadian currency.
1.2.16 "SCHEDULES" means the following schedules, which form a part of this
Lease:
Schedule "A" - Site plans and floor plan showing the
approximate location of the Premises
Schedule "B" - Construction Schedule - Landlord's Work and
Tenant's Work
Schedule "C" - Rules and Regulations
Schedule "D" - Other Terms and Conditions
Schedule "E" - Guaranty
1.2.17 "TAXES " means the aggregate of all real property, sewer, municipal,
corporation capital and other taxes and rates, whether general or special, of
any nature whatsoever, including school and local improvement taxes and business
taxes levied or assessed by any lawful authority against the Land, the Building,
(based on the Business Park being its sole asset) or deferred payments and
interest or penalties, together with the costs of the Landlord in contesting or
negotiating the same, including, without limitation, any such taxes which are
imposed in lieu of or as a substitute for any such taxes, or on account of the
Landlord's ownership of the Land and Building. All Taxes will be computed by
the Landlord's accountant (whose decision shall be final and binding on the
parties) on the basis that the Landlord's sole assets are the Land and Building.
1.2.18 "TERM" means the period set forth in article 1.1(f).
1.2.19 "TRADE FIXTURES" means any and all fixtures and equipment used by
the Tenant in connection with its business conducted from the Premises and
installed in the Premises in a fashion such that they may be removed by the
Tenant without causing damage to the Premises or the Building and including,
without limitation, office equipment, files, data, furnishings, computers and
computer equipment.
1.2.20 "YEAR OF THE TERM" means each successive twelve (12) calendar month
period (or part thereof) throughout the Term commencing on the Commencement
Date.
ARTICLE 2
GRANT
2.1 PREMISES. In consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be observed and
performed, the Landlord hereby demises and leases the Premises to the Tenant and
the Tenant takes the Premises on lease from the Landlord, TO HAVE AND TO HOLD
during the Term on the terms and conditions of this Lease. The Tenant shall
examine the Premises before taking possession hereunder and such taking of
possession shall be conclusive evidence as against the Tenant that at that time
the Premises were in good order and satisfactory condition.
2.2 PROVISO. If the actual Floor Area of the Premises differs from that
specified in article 1.1(e) of this Lease,
Dominion/Investors/Trillium Lease Kuhn & Company
- 7 -
then the Minimum Rent, the Tenant's Proportionate Share and all other amounts
calculated and payable with reference to this area shall be adjusted and payable
in accordance with such certification.
2.3 TERM. The Term of this Lease will be for the period set out in
article 1.1(f) commencing on the Commencement Date.
2.4 CONSTRUCTION OF PREMISES. The Landlord agrees to perform the
Landlord's Work described in Schedule "B" hereto at its expense. Provided the
Tenant contracts with the Landlord's base building contractor to undertake the
Tenant's Work, the Landlord will complete the Landlord's Work, to the extent
necessary to permit the Tenant's contractor to begin construction of the
Tenant's Work, by March 15, 2001, and for the Tenant to legally occupy the
Premises by June 30, 2001. The Tenant shall commence and complete the Tenant's
work necessary to make the Premises fit for their intended purposes utilizing
such contractors, consultants and suppliers as may be approved by the Landlord,
acting reasonably, at the Tenant's sole cost, risk and expense within the
Premises Preparation Period specified in article 1.1(k) commencing upon receipt
of a written notice from the Landlord that the Landlord's Work has progressed to
the stage where the Tenant's Work may commence. The Tenant acknowledges that
development of and construction on the Land may proceed in phases. Further, the
Landlord and the Tenant have agreed that the base building contractor's
contingency allowance applies only if that contractor's fee under the base
building contract is less than 6% of the Building construction costs and that
base building contractor has provided for competitive bids for all major trades
in undertaking construction of the work on the Building.
2.5 DELAYED POSSESSION. If for any reason whatsoever the Landlord is
delayed in delivering possession of the Premises to the Tenant on or before
March 15, 2001, or June 30, 2001, as set out in Section 2.3, the Commencement
Date and Premises Preparation Period will be delayed for a period commensurate
with the delay in delivery of possession of the Premises to the Tenant. If the
Landlord is delayed in delivering possession of the Premises to the Tenant for
Commencement of its Premises Preparation Period past May 15, 2001, or for legal
occupation of the Premises past August 30, 2001, the Tenant may terminate this
Lease, with no further obligations to or by any party hereunder by delivering
notice to the Landlord within 10 business days of the applicable date, or such
other date as the Landlord and Tenant may agree in writing. The Tenant and
Landlord shall use all reasonable efforts to complete their respective work on
or in relation to the Premises so as to enable the Tenant to take possession of
and occupy the Premises within the times set out above. Nothing shall make the
Landlord liable to the Tenant for any loss or damage resulting from any delay in
delivering possession of the Premises to the Tenant, but unless the Tenant
terminates the Lease pursuant to this Section 2.4, the Premises Preparation
Period and the Rental Concession set out in Schedule D, shall apply.
2.6 PREMISES PREPARATION. During the Premises Preparation Period, the
Tenant shall have possession of the Premises for purposes of completing its
leasehold improvements, moving its business and its Trade Fixtures into the
Premises without being required to pay Minimum Rent or Operating Costs to the
Landlord. Notwithstanding that the Tenant is not obliged to pay Rent during the
Premises Preparation Period, the Tenant shall in all other respects be in
possession of the Premises pursuant to and comply with the terms and conditions
of this Lease, including, without limitation, the Tenant's insurance obligations
hereunder.
ARTICLE 3
RENT
3.1 MINIMUM RENT. The Tenant agrees to pay to the Landlord at the office
of the Landlord, or at such other place designated by the Landlord, in lawful
money of Canada, without any prior demand therefor and without any deduction or
set-off whatsoever a Minimum Rent for each Year of the Term in the amount per
square foot set out in article 1.1(h) multiplied by the Floor Area of the
Premises, payable in equal monthly installments in advance on the first day of
each calendar month, commencing on the Commencement Date.
3.2 ADDITIONAL RENT. The Tenant shall pay all Additional Rent when
payable or on demand without any deduction or set off whatsoever. If such
amounts or charges are not paid at the time provided in this Lease, they shall
be collectible as Rent with the next installment of Minimum Rent thereafter
falling due hereunder, but nothing herein
Dominion/Investors/Trillium Lease Kuhn & Company
- 8 -
contained shall be deemed to suspend or delay the payment of any amount of money
or charge at the time the same becomes due and payable hereunder, or limit any
other remedy of the Landlord.
3.3 SECURITY DEPOSIT. Intentionally deleted.
3.4 POST-DATED CHEQUES. Intentionally deleted.
3.5 IRREGULAR PERIODS. All Rent payments required to be made by the
Tenant under this Lease shall be deemed to accrue from day to day and if for any
reason it shall become necessary to calculate Rent for irregular periods of less
than one year, an appropriate pro-rata adjustment shall be made on a daily basis
in order to compute payment for such irregular period.
3.6 INTEREST ON UNPAID RENT. Any unpaid amounts of Rent shall bear
interest, payable as Additional Rent, from the due date thereof to the date of
payment at a rate per annum equal to the greater of eighteen percent (18%) or
five (5%) percentage points in excess of the prime commercial lending rate
("Prime Rate") per annum charged or chargeable from time to time by a Canadian
chartered bank designated by the Landlord on loans made in Canadian funds to its
most favoured commercial borrowers, calculated and compounded monthly, with any
adjustment in such rate to be effective on the first day of the month next
following such change in the Prime Rate. Any cheque payable to the Landlord for
Rent which is not honoured by the financial institution on which it is drawn
shall bear a $75.00 administration charge, payable by the Tenant forthwith upon
demand. Nothing contained herein shall be construed so as to compel the Landlord
to accept any payment of Rent in arrears should the Landlord elect to apply its
remedies under the forfeiture or any other article of this Lease in the event of
default hereunder by the Tenant.
ARTICLE 4
NET LEASE
4.1 INTENT. The Tenant covenants that this Lease shall be a completely
carefree absolutely net lease for the Landlord, except as shall be otherwise
provided, and that the Landlord shall not be responsible during the Term for any
costs, charges, expenses and outlays of any nature whatsoever, arising from or
connected with relating to the Premises, the Land, the Building, or the contents
thereof, excepting only the Landlord's income tax in respect of income received
from leasing the Premises and other premises in the Building and the Landlord's
structural repairs resulting from construction deficiencies as required herein.
Except as otherwise provided, the Tenant shall pay in the manner more
particularly described in this Lease, all charges, impositions and costs of
every nature and kind relating to or connected with the Premises and the
Building whether or not referred to in the Lease and whether or not of a kind
now existing or contemplated by the parties.
ARTICLE 5
TAXES
5.1 TAXES. During each Lease Year the Tenant shall pay to the Landlord
its share of Taxes, being a fraction which has as its numerator, the Floor Area
of the Premises and as its denominator, the aggregate from time to time
expressed in square feet, as certified by the Landlord's surveyor or architect,
as determined by the Landlord from time to time, of the Floor Area of all
leasable areas (including the Premises) of the Building (whether unoccupied or
occupied.
The tax year of any lawful authority commencing during any Lease
Year shall be deemed to correspond to such Lease Year. The Landlord may estimate
in advance for each Lease Year the Tenant's share of Taxes and the Tenant agrees
to pay the Landlord such estimated amount in monthly installments in advance
during the Term. A certified statement of a responsible officer of the Landlord
to the Tenant as to the amount of the tax bill shall be sufficient evidence of
the amount of taxes assessed or levied against the parcel or real property to
which such bill relates. If the Tenant shall have paid in excess of the Tenant's
share of Taxes for such Lease Year, the excess shall be refunded by the
Dominion/Investors/Trillium Lease Kuhn & Company
- 9 -
Landlord within a reasonable period of time. If the amount paid by the Tenant is
less than the Tenant's share of Taxes, the Tenant agrees to pay such deficiency
to the Landlord with the next due monthly payments of Minimum Rent.
5.2 BUSINESS AND OTHER TAXES. The Tenant shall pay, promptly when due,
to the taxing authorities or to the Landlord if it so directs, all business,
sales, machinery and equipment taxes, rates or duties as well as any permit or
licence fees, attributable to the use and occupancy of the Premises and the
property, business, sales or income of the Tenant in respect of the Premises. If
paid directly to the taxing authorities, the Tenant shall furnish to the
Landlord evidence of payment satisfactory to the Landlord.
5.3 GOODS AND SERVICES TAX. If any business transfer tax, value-added
tax, multi-stage sales tax, sales tax, goods and services tax, or any like tax
("Sales Tax")is imposed on or collectible by the Landlord by any governmental
authority on any Rent payable by the Tenant under this Lease, the Tenant shall
reimburse (and hereby indemnifies) the Landlord for the amount of Sales Tax,
forthwith upon demand or at any time designated from time to time by the
Landlord. The amount of Sales Tax so payable by the Tenant shall be calculated
by the Landlord in accordance with the applicable legislation. The parties
acknowledge that the Sales Tax shall be deemed not to be Rent but the Landlord
shall have all of the same remedies for and rights of recovery of the Sales Tax
as it has for recovery of Rent under this Lease.
ARTICLE 6
OPERATING COSTS
6.1 TENANT TO PAY PROPORTIONATE SHARE. During each Lease Year the Tenant
shall pay to the Landlord:
(a) the Tenant's share of Operating Costs for the Building, being
a fraction which has as its numerator, the Floor Area of the
Premises and as its denominator, the Floor Area of the
Building; and
(b) the Tenant's share of Operating Costs for the exterior Common
Areas and Facilities being a fraction which has as its
numerator, the Floor Area of the Premises and as its
denominator, the aggregate from time to time expressed in
square feet, as certified by the Landlord's surveyor or
architect, of the Floor Area of all leasable areas (including
the Premises) of the Business Park.
6.2 PAYMENT OF TENANT'S SHARE. Operating Costs shall be estimated by the
Landlord for such period as the Landlord may determine and the Tenant agrees to
pay to the Landlord its share of such amounts, in monthly installments in
advance, during such period together with other rental payments provided for in
this Lease. If the Tenant shall have paid in excess of the actual amount due,
the excess shall be refunded by the Landlord within a reasonable period of time
or be credited on account of Rent next falling due. If the amount the Tenant has
paid is less than the actual amount due, the Tenant shall pay such deficiency
with the next Minimum Rent payment due.
6.3 LANDLORD'S ALLOCATION OF OPERATING COSTS. In the reasonable opinion
of the Landlord, whenever any item(s) of Operating Cost or portions thereof
properly relates to a particular tenant or tenants within the Building, the
Landlord may allocate or attribute such item or items to such tenant or tenants,
and the amount so allocated or attributed shall be payable forthwith upon
demand.
ARTICLE 7
USE OF COMMON AREAS AND FACILITIES AND PARKING
7.1 CONTROL OF COMMON AREAS & FACILITIES BY THE LANDLORD. All Common
Areas and Facilities from time to time provided by the Landlord shall at all
times be subject to the exclusive control and management of the Landlord, and
the Landlord shall have the right from time to time to establish, modify and
enforce reasonable rules and regulations with respect to the Premises and all
Common Areas and Facilities.
7.2 CHANGES AND ADDITIONS TO BUILDINGS. The Landlord hereby reserves the
right at any time to change the
Dominion/Investors/Trillium Lease Kuhn & Company
- 10 -
configurations of the Common Areas and Facilities and to make alterations or
additions to and build additional storeys on the Building. The Landlord also
reserves the right to construct other buildings or improvements on the Land from
time to time and to make alterations or additions thereto and to construct
multi-deck or elevated or underground parking facilities.
7.3 PARKING.
(a) Subject to the by-laws, rules and regulations of the Landlord,
the Tenant and its employees, agents, customers and invitees
shall have the right, while at the Premises, in common with
all others from time to time entitled thereto, to park their
passenger motor vehicles for a reasonable period of time each
day upon that portion of the Land designated for vehicle
parking and not exclusively reserved for the use of other
Tenants of the Building. The Landlord may cause to be removed
at the cost of the Tenant, such vehicles as may be left on the
Land while apparently uninsured, unlicensed or abandoned. The
Landlord grants to the Tenant for the Term, for use by the
Tenant, the right and license to use that number of parking
spaces set out in article 1.1(l), and during the first year
of the Term the Tenant shall pay to the Landlord or its
parking lot operator the rental rates of $40.00 for each
surface parking space and $50.00 for each underground parking
space. After the first year of the Term, the Tenant shall pay
for parking the reasonable rental rates established by the
Landlord or its parking lot operator from time to time. It is
understood and agreed that in setting its parking rental rates
the Landlord and its parking lot operator shall not
unreasonably exceed the then prevailing market rates for
comparable parking spaces.
(b) The Tenant will not park or suffer or permit to be parked, any
vehicles owned, leased or controlled by it or by any of its
employees, agents or invitees or suffer or permit any loading
or unloading of vehicles upon any portion of the Land, except
in areas designated for such purposes by the Landlord. The
Landlord may, without notice and at any time and from time to
time (i) designate parking, loading, and no parking areas;
(ii) change or reduce designated parking, paid parking,
loading and no parking areas; (iii) cause any parking or
loading areas to be shared with other tenants; and (iv) use
any parking or loading areas for any reasonable purpose
required by the Landlord. From time to time and upon
reasonable written notice to the Tenant, the Landlord or its
parking lot operator may impose and vary from time to time
rates or charges on the Tenant for the use by the Tenant or
its employees, agents or invitees of designated parking areas.
Whenever requested by the Landlord, the Tenant shall furnish
to the Landlord the current licence plate numbers for all
vehicles owned, leased or controlled by the Tenant and its
employees, agent or invitees.
(c) The Tenant will advise the Landlord upon or prior to the
Commencement Date, and at such other times as the Landlord may
require, as to the greatest number of employees and agents
reasonably expected on the Premises at any one time, so as to
permit the Landlord to comply with all municipal and other
parking bylaws and regulations in respect of the Land,
including the Landlord's parking regulations, if any, as
determined by it from time to time.
ARTICLE 8
USE OF PREMISES
8.1 USE OF PREMISES.
(a) The Tenant shall use the Premises solely for the purpose set
forth in article 1.1(i). The Tenant will not use or permit or
suffer the Premises or any part thereof to be used for any
other business or purpose. Furthermore, the Tenant shall not
at any time use or permit or suffer the Premises or any part
thereof to be used for any business or purpose (even if
included in the permitted use hereunder) for which the
Landlord has granted an exclusive use to another tenant in the
Building and notice of which exclusive
Dominion/Investors/Trillium Lease Kuhn & Company
- 11 -
use has been given by the Landlord to the Tenant, provided the
Tenant has not so used the Premises prior to such notice being
given. Furthermore, the Tenant shall not carry on the business
of auto body or auto or boat repairing, woodworking, fibre
glass working, painting or silk screening, automated teller or
bank machines or lottery machines. Throughout the whole of the
Term, the Tenant shall continuously operate, occupy and use
the entire Premises and conduct its business therein pursuant
to this Lease.
(b) The Tenant shall not commit or suffer to be committed (i) any
waste upon the Premises or (ii) any nuisance or other thing
which may disturb the quiet enjoyment of any other occupier of
premises in the Building; or (iii) any acts or practices which
may damage the Building or any improvements on the Land or in
the Business Park.
(c) The Tenant shall use its best efforts to prevent anything
being done on the Premises or the Land which may result in the
Land or Building or any part thereof being picketed or
otherwise subjected to labour, political or other
demonstration or action. In the event of such picketing,
action or demonstration, the Tenant shall immediately take all
reasonable action and proceedings necessary to cause such
picketing, action and demonstration to cease without delay.
(d) The Tenant shall use only the business name specified in
article 1.1(i) for its business in the Premises and shall not
change or permit the change of that name without the prior
written consent of the Landlord, which consent shall not be
unreasonably withheld so long as the name to which the Tenant
changes its business operated in the Premises is the same as
the name to which the Tenant changes its other business
operations in all its other locations.
(e) The Tenant shall comply with all reasonable requests of the
Landlord with respect to conservation of energy, recycling and
environmental care, and shall pay its Proportionate Share of
the costs of acquiring and installing such conservation,
recycling and environmental care equipment and systems for the
Building.
(f) The Tenant shall turn off all lights and other energy-using
equipment or systems within the Premises, except where
reasonably required to be left on for valid purposes,
including security.
(g) The Tenant shall not bring onto the Premises or Land, nor
discharge nor permit the discharge of any waste, oil or
grease, hazardous substance or any deleterious, objectionable,
dangerous, radioactive, poisonous or explosive matter or
noxious or unpleasant fumes, gases or substance (the
"Pollutants") onto the Premises or Land, or into any air,
waters, ditches, culverts, drains or sewers on or adjacent to
the Premises or Land, and the Tenant shall take all measures
necessary to ensure that any effluent or other substance
discharged by it is not corrosive, poisonous or otherwise
harmful to any sewage disposal works or to the bacteriological
process of sewage purification. The Landlord shall be
permitted access to the Premises from time to time to test and
monitor the effluent from the Tenant's operations and
compliance with this section. In addition, the Tenant shall
not dispose of, discharge or accumulate or permit to be
disposed or, discharged or accumulated on, in or under the
Lands any Pollutants. The Tenant shall promptly pay to the
Landlord any and all costs incurred by the Landlord in
containing, cleaning up, removal and disposal of any materials
deemed hazardous or deleterious by the Landlord or and such
experts and inspections as it, from time to time, shall
employ. These costs are acknowledged to be Additional Rent.
This clause and the matters referred to herein may be modified
and expanded at the Landlord's sole discretion to comply with
requirements imposed by applicable insurers, financial
institutions or government authorities. Notwithstanding any
other provision of this Lease, the Tenant will comply with all
laws and regulations affecting the Lands, specifically
including those of an environmental nature. The Tenant will
indemnify and save harmless the Landlord of and from the costs
of disputing, investigating, remediating, resolving and
settling environmental claims against the Lands, or remedying
the Tenant's default of this provision.
(h) The Tenant shall not bring sharp objects onto the Premises or
Land, nor permit any sharp objects which could puncture the
skin or constitute a threat of potential harm to persons, and
will safeguard, store and dispose of such sharp objects so as
to comply with the highest standard of safety and care.
Dominion/Investors/Trillium Lease Kuhn & Company
- 12 -
ARTICLE 9
UTILITIES AND ADDITIONAL SERVICES
9.1 UTILITIES. The Tenant shall pay as they become due and payable all
rates, charges and other amounts arising for, related to, or incurred in respect
of, services and utilities, including water, fuel, gas communications or other
utility or service and electrical power or energy, heating, ventilation or air
conditioning used upon or in respect of the Premises or any part thereof and for
fittings, machines, apparatus, meters or other things leased in respect thereof,
and for all work and services performed by any corporation or commission in
connection with such utilities or service. Where any such service or utility is
supplied by or through the Landlord, the Tenant shall pay to the Landlord an
amount (the "Charge") which is the total, without duplication, of:
(a) the cost incurred by the Landlord for water, fuel, power,
electricity, communications, heating, ventilation or air
conditioning or other utility or service (the "Utilities")
used in or for the Premises or allocated to them by the
Landlord;
(b) charges imposed in place of or in addition to Utilities as
determined by the Landlord; and
(c) the Landlord's costs of determining the Charge including, but
not limited to, professional, engineering and consulting fees.
If the Landlord supplies Utilities, the Tenant shall pay the
Landlord the Charge in advance on demand, which shall be based on estimates of
the Landlord but shall be subject to adjustment within a reasonable time after
the period for which the estimate had been made. The Landlord shall not be
liable for interruption or cessation of, or failure in the supply of Utilities,
services or systems in, to or servicing the Land or the Premises, whether they
are supplied by the Landlord or others, and whether the interruption or
cessation is caused by the Landlord's negligence or not. Upon occupancy of the
Premises, and provided that the Utilities are directly metered by a third party,
the Tenant covenants to transfer all accounts into its name. The Landlord will
disconnect these services as of the Commencement Date, and the Tenant will pay
any and all connection fees if it does not assume the account in its name. If no
separate metering exists for the Premises, the Landlord will, acting reasonably,
allocate the proportionate share of Utilities to each premises in the Building.
9.2 ADDITIONAL SERVICES. At its option, the Landlord shall have the
exclusive right, by way of Additional Services, to provide or have its
designated agents or contractors provide any janitorial or cleaning services to
the Premises required by the Tenant which are additional to those required to be
provided by the Landlord under this Lease, including any additional services
which the Landlord agrees to provide by arrangement and to supervise the moving
of furniture or equipment of the Tenant and the making of repairs or alterations
conducted within the Premises and to supervise or make deliveries to the
Premises. The Tenant shall pay to the Landlord promptly upon receipt of invoices
therefor from the Landlord or as part of Operating Costs, the Cost of Additional
Services whether the Landlord shall be obligated hereunder or shall elect to
provide them as Additional Services. The Cost of Additional Services charged
directly to the Tenant and other tenants shall be credited in computing
Operating Costs to the extent that they would otherwise have been included. On
request by the Tenant, the Landlord may agree from time to time, in its sole
discretion, to arrange at the Tenant's cost for extra heating, ventilating, and
air conditioning supply, electrical supply or the supply of other services to
the Premises above those normally provided to tenants of the Building or outside
of Building Hours. At its option and at the Tenant's cost as an Additional
Service, the Landlord may install and maintain meters to check the Tenant's
consumption of electricity, water, gas, communication or other utilities or
facilities and provide and maintain garbage or waste receptacles for use of the
Tenant alone or in common with others.
9.3 SECURITY OF PREMISES. Notwithstanding sections 9.1, 9.2, 10.3, and
10.4 of this Lease, the Landlord shall only access the Premises with the consent
of the Tenant, acting reasonably to maintain adequate security of the Premises.
ARTICLE 10
MAINTENANCE OF PREMISES
10.1 CLEANING.
Dominion/Investors/Trillium Lease Kuhn & Company
- 13 -
(a) The Tenant shall keep the Premises and, without limitation,
the inside, and, if on the ground floor, outside of all glass,
windows, window coverings and doors of the Premises and all
exterior surfaces of the Premises, in a neat, clean and
sanitary condition and shall not allow any refuse, garbage or
other loose or objectionable or waste material to accumulate
in or about the Premises but rather shall dispose of the same
in accordance with the Rules and Regulations.
(b) The Tenant shall, immediately before the expiration of the
Term, wash the floors, windows, and doors, and wash and
repaint the walls and woodwork of the Premises and shall not,
upon such expiration, leave upon the Premises any refuse,
garbage or waste material; all to the requirements of the
Landlord.
(c) The Tenant shall have the option to retain and pay for its own
janitor service, cleaning of debris, removal of garbage and
such other costs as may be incurred in cleaning the Premises.
(d) If the Tenant fails to clean and paint in accordance with its
obligations hereunder upon notice so to do from the Landlord,
the Landlord may clean and paint the same and the Tenant shall
pay the cost thereof to the Landlord as Additional Rent.
(e) The Tenant shall remove any ice or snow accumulating on the
sidewalks and other area immediately bordering the exterior of
the Premises, and keep such areas clean and clear.
10.2 TENANT'S REPAIRS.
(a) The Tenant shall repair the Premises, only excepting
reasonable wear and tear and repairs which are the
responsibility of the Landlord pursuant to this article 10,
but including any damage to or breakage of glass (excluding
all exterior windows), mouldings, signs, doors,locks,
hardware, lighting, wiring, plumbing, improvements,
partitions, walls, Utilities connections, wiring, lighting,
sprinkler systems, heating, ventilation and air conditioning
systems, pipes and plumbing, security systems, fixtures,
thresholds and all Trade Fixtures and furnishings of the
Tenant or otherwise in or for the Premises, and shall
redecorate and repaint as required by the Landlord, acting
reasonably, and maintain in good condition the interior of the
Premises, any appurtenances thereto, any improvements now or
hereafter erected or installed therein and any apparatus or
equipment of the Tenant therein or therefor.
(b) The Tenant shall keep the interior of the Premises
well-painted at all times in accordance with the reasonable
requests of the Landlord, using colours which shall first be
approved in writing by the Landlord; shall keep all plumbing
facilities within the Premises and all drains therefrom in
good repair and working order; will not enter, nor will it
cause, suffer or permit entry, on to any roof in the Building,
without being accompanied by an authorized representative of
the Landlord, and will not make any opening in the roof
without the prior written consent of the Landlord.
(c) The Tenant, its employees or agents shall not mark, paint,
drill or in any way deface any walls, ceilings, partitions,
floors, wood, stone or ironwork without the written approval
of the Landlord.
10.3 VIEW REPAIRS.
The Tenant shall provide the Landlord with keys to all
portions of the Premises and hereby authorizes the Landlord to enter the
Premises at any reasonable time during business hours and at any time during any
emergency to view the state of repair and the Tenant shall repair according to
notice in writing from the Landlord so to do, subject to the exceptions
contained in this article 10.
10.4 LANDLORD MAY REPAIR.
If the Tenant fails to repair or otherwise comply with this
article 10 within five (5) days of receipt thereof, the Landlord may make such
repairs or perform such other trades without liability to the Tenant for any
loss " damage that may occur to the Tenant's fixtures or other property or to
the Tenant's business by reason thereof, and upon , completion thereof, the
Tenant shall pay as Additional Rent the Landlord's costs for making such
repairs.
10.5 LANDLORD'S REPAIRS.
Dominion/Investors/Trillium Lease Kuhn & Company
- 14 -
(a) The Landlord shall conduct all maintenance, repairs and
replacements to the apparatus for heating, ventilating and
air-conditioning installed in the Building, including the
Premises; the cost of which shall be included in the Operating
Costs.
(b) The Landlord shall be responsible for the repairs to the
Premises or to the Building caused by Insurable Hazards.
(c) Notwithstanding the other provisions of this article 10.5, the
Landlord shall not be obligated to make repairs or
replacements caused by any default or negligence of the
Tenant, its agents, customers, employees, invitees or
licensees, but such repairs and replacements may be made by
the Landlord at the Tenant's cost in like manner as provided
in article 10.4.
(d) The Landlord shall not be liable for any loss or damage to any
person or property for its failure to repair in accordance
with this article 10.5, unless such loss or damage is caused
by the default or negligence of the Landlord, its agents,
employees or contractors and is not specifically excepted
pursuant to this Lease.
(e) The Landlord shall keep painted those parts of the exterior of
the Premises requiring painting other than such parts of the
exterior as may have been installed by or at the request of
the Tenant, the cost of which shall be included in Operating
Costs.
(f) In fulfilling its obligations pursuant to this article 10.5,
the Landlord shall be entitled to enter the Premises and shall
act as expeditiously as is reasonably possible in the
circumstances.
(g) The Landlord shall repair and maintain the structure of the
Building, including the exterior walls, roof, pipes, plumbing,
electrical wires and other installations of a structural
nature including the roof membrane and water tightness of the
Building. If any such repairs will be required to be made by
the Landlord by reason of negligence of the Tenant its agents,
employees invitees, or licensees, the Landlord will be
entitled to recover the costs thereof from the Tenant and if
the Tenant fails to pay the same on demand, the Landlord may
recover the amounts so due by all remedies available to it for
the recovery of rent in arrears.
10.6 COST OF REPAIR. If the Building, Land or the Common Areas and
Facilities or any portion thereof, including without limiting the
generality of the foregoing, the common loading areas, the exterior
of the Premises, including the front thereof and entrance thereto,
the boilers, engines, pipes and other apparatus (or any of them)
used for the purpose of heating, ventilating or air-conditioning the
Building, or if the water pipes, drainage pipes, electric lighting
or any other equipment or system of the Building or the roof or
outside walls of the Building become damaged or destroyed through
the negligence, carelessness or misuse of the Tenant, its servants,
agents, employees, contractors, lessees, licensees or
concessionaires, or through it or them in any way stopping up,
injuring or rendering inoperable the heating apparatus, water pipes,
drainage pipes or other equipment or part of the Building, the
expense of necessary repairs, replacements or alterations, plus a
sum equal to fifteen percent thereof in relation to the Landlord's
overhead costs, shall be borne by the Tenant, payable to the
Landlord upon demand.
ARTICLE 11
INSURANCE AND INDEMNITY
11.1 TENANT'S INSURANCE.
(a) During the whole of the Term and during such other time as the
Tenant occupies the Premises, the Tenant shall take out and
maintain in the names of the Tenant and the Landlord as their
respective interests may appear, the following insurance
coverage, at the Tenant's sole expense:
(i) comprehensive general liability insurance against
claims for third party bodily injury, including
death, and property damage or loss arising out of
the use or
Dominion/Investors/Trillium Lease Kuhn & Company
- 15 -
occupation of the Premises, or the Tenant's business on or
about the Premises; such insurance to be in the joint names of
the Tenant and the Landlord, as well as the Landlord's
mortgagee, so as to indemnify and protect both the Tenant and
the Landlord, as well as the Landlord's mortgagee, and to
contain a "cross liability" or "severability of interest"
clause so that the Landlord and the Tenant, as well as the
Landlord's mortgagee, may be insured in the same manner and to
the same extent as if individual policies had been issued to
each, and shall be for the amount of not less than two million
($2,000,000.00) dollars combined single limit or such greater
amount as may be reasonably required by the Landlord from time
to time which commercial general liability insurance shall
include, for the Tenant's benefit only, tenant's all risk
legal liability insurance in an amount equal to the
replacement cost of the Premises including loss of use
thereof;
(ii) all risks of physical loss insurance upon its merchandise,
stock-in-trade, furniture, fixtures, all glass and
improvements and upon all other property in the Premises owned
by the Tenant or for which the Tenant is legally liable,
including broad form boiler and machinery insurance, all in an
amount equal to the full replacement cost thereof, which
amount in the event of a dispute shall be determined by the
decision of the Landlord;
(iii) business interruption coverage which shall provide for the
payment of Minimum Rent and all additional costs collectible
as Rent to the Landlord for a period of twelve (12) months;
(iv) coverage of breakage or damage from any cause to all internal
and external glass and plate glass in or forming part of the
Premises;
(v) insurance covering damage to the Building caused during
burglary, for the benefit of the Landlord and Tenant;
(vi) any other form of insurance as the Landlord or Landlord's
insurance agent, acting reasonably, may require from time to
time, in amounts and for insurance risks against which a
prudent tenant would insure.
(b) The Tenant's policies of insurance hereinbefore referred to shall
contain the following:
(i) provisions that the Landlord is protected notwithstanding any
act, neglect or misrepresentation of the Tenant which might
otherwise result in the avoidance of claim under such policies
and such policies shall not be affected or invalidated by any
act, omission or negligence of the Tenant or any third party
which is not within the control of the Landlord;
(ii) provisions that such policies and the coverage evidenced
thereby shall be primary and noncontributing with respect to
any policies carried by the Landlord;
(iii) provisions that such policies of insurance shall provide for
deductibles of not more than Fifty Thousand ($50,000.00)
Dollars in all other instances;
(iv) all insurance referred to above shall provide for waiver of
the insurer's rights of subrogation as against the Landlord;
(v) provisions that such policies of insurance shall not be
restricted, materially changed or cancelled without the
insurer providing the Landlord with Thirty (30) days written
notice stating when such restriction, change or cancellation
shall be, effective.
(c) The Tenant shall maintain such other insurance in such amounts and
in such sums as the Landlord may
Dominion/Investors/Trillium Lease Kuhn & Company
- 16 -
reasonably determine from time to time. Evidence satisfactory to the
Landlord and its insurance agent of all such policies of insurance
shall be provided to the Landlord upon request.
(d) Notwithstanding anything in this subsection 11.1, and in any event,
the Tenant shall be responsible for any deductibles not covered by
insurance.
11.2 LANDLORD DISCLAIMER.
(a) Except to the extent within its control, the Landlord shall not be
liable for any bodily injury to or death of, or loss or damage to
any property belonging to the Tenant or its employees, invitees or
licensees or any other person in or about the Premises, Building or
the Land and in no event shall the Landlord be liable for any
consequential injury, economic or financial loss or damage relating
thereto, or, without limitation,
(i) for any injury or damage of any nature whatsoever to any
persons or property caused by the failure by reason of a
breakdown or other cause, either directly or indirectly, to
supply adequate drainage, snow or ice removal or by reason of
the interruption of any public utility or other service, or in
the event of gas, steam, water, rain, snow, ice or other
substances leaking into, issuing or flowing from the water,
steam, sprinkler or drainage pipes or plumbing of the Land,
Building or the Premises or from any other place or quarter
into any part of the Premises, or from any loss or damage
caused by or attributable to the condition or arrangement of
any electric or other wiring or for any damage caused by
anything done or omitted to be done by any other tenant of the
Building;
(ii) for any act or omission, including theft, malfeasance, or
negligence on the part of any agent, contractor or person from
time to time employed by the Landlord to perform security
services, maintenance, supervision, cleaning or any other work
or service in or about the Premises, Building or the Land;
(iii) for loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of the
Tenant, including any consequential loss or damage resulting
therefrom; or
(iv) for loss or damage to any automobiles or their contents or for
the unauthorized use by other tenants or strangers of any
parking space allotted to the Tenant or for parking in or upon
the Common Areas and Facilities;
and the Tenant covenants to indemnify and does hereby indemnify the
Landlord against and from all loss, costs, claims and demands in
respect of any such injury, death or loss to it or its employees,
invitees or licensees or any other person in or on the Land or
Building for the purpose of attending at the Premises or the Land or
Building in respect of any such damage to property belonging to or
entrusted to the care of any of the aforementioned;
(b) The Landlord shall have no responsibility or liability for the
failure to supply, if required to do so under the terms of this
Lease, interior and climate control and utilities, when prevented
from doing so by strikes, the necessity of repairs, any order or
regulation of anybody having jurisdiction, the failure of the supply
of any utility required for the operation thereof or any other cause
beyond the Landlord's reasonable control, and the Landlord shall in
no event be held responsible or liable for indirect or consequential
loss, damages or other damages for personal discomfort or illness or
injury or death resulting therefrom;
(c) The Landlord shall be under no obligation to repair, maintain or
insure any of the Tenant's Trade Fixtures or improvements installed
by the Tenant or on its behalf or any other property of the Tenant
in or upon the Premises;
(d) The Landlord shall be under no obligation to remedy any default of
the Tenant and shall not incur any liability to the Tenant for any
act or omission in the course of its curing or attempting to cure
any such
Dominion/Investors/Trillium Lease Kuhn & Company
- 17 -
default or in the event of its entering upon the Premises to
undertake any examination thereof or any work therein or in the case
of any emergency.
11.3 INCREASE IN INSURANCE PREMIUMS. The Tenant shall not keep, use, sell
or offer for sale in or upon the Premises any article which may be prohibited by
the insurance policies in force from time to time covering the Land or Building.
In the event the Tenant's occupancy of, conduct of business in, or sale of any
merchandise from, or on the Premises, or in the event any activity carried on or
permitted to be carried on by the Tenant whether or not the Landlord has
consented to same, causes any increase in premiums for the insurance carried
from time to time by the Landlord for the Land or Building, the Tenant shall pay
any such increase in premiums as Additional Rent within ten (10) days after
bills for such additional premiums shall be rendered by the Landlord. In
determining whether increased premiums are a result of the Tenant's use or
occupancy of the Premises, or the sale of any article therein or therefrom, a
schedule issued by the organization making the insurance rate on the Land or
Building showing the various components of such rates shall be conclusive
evidence of the several items and charges which make up such rates.
11.4 CANCELLATION OF INSURANCE. If any insurance policy upon the
Premises, or any part thereof, shall be cancelled or shall be threatened by the
insurer to be cancelled, or the coverage thereunder reduced in any way by the
insurer by reason of the use and occupation of the Premises or any part thereof
by the Tenant or by any assignee or subtenant of the Tenant, or by anyone
permitted by the Tenant to be upon the Premises, and if the Tenant fails to
remedy the condition giving rise to cancellation or reduction of coverage within
forty-eight (48) hours after notice thereof by the Landlord, the Landlord may
remedy the condition giving rise to such cancellation, threatened cancellation
or reduction, and the Tenant shall forthwith pay the cost thereof to the
Landlord, which cost may be collected by the Landlord as Rent.
11.5 INDEMNIFICATION OF LANDLORD. The Tenant agrees to and does hereby
indemnify, defend and save harmless the Landlord in respect of any claims for
bodily injury or death, property damage or any other loss or damage, arising
howsoever, out of the use or occupation of the Premises or from the conduct of
any work by or any act or omission of the Tenant or any assignee, subtenants,
agent, employee, contractor, invitee, or licensee of the Tenant or anyone else
for whom the Tenant may be responsible and in respect of all costs, expenses and
liabilities incurred by the Landlord in connection with or arising out of all
such claims; including the expenses of any action or proceeding pertaining
thereto and in respect of any loss, cost, expense or damage suffered or incurred
by the Landlord arising from any breach or non-performance by the Tenant of any
of its covenants or obligations under this Lease. The Tenant's obligations to
observe or perform the foregoing covenants shall survive the expiration of other
termination of this Lease. The Tenant expressly releases the Landlord from any
claims, damages, judgments, losses or awards caused by or arising from perils
insured against or required to be insured against by the Tenant under this
Lease.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
12.1 ASSIGNMENT AND SUBLETTING.
(a) The Tenant shall not assign this Lease or sublet or otherwise part
with possession of the whole or any part of the Premises unless: (1)
it shall have received or procured a bona fide written offer to take
an assignment or sublease which is not inconsistent with, and the
acceptance of which would not breach any provision of this Lease if
this article is complied with and which the Tenant has determined to
accept subject to this article being complied with, and (2) it shall
have first requested and obtained the consent in writing of the
Landlord thereto. Any request for such consent shall be in writing
and accompanied by a true copy of such offer, and the Tenant shall
furnish to the Landlord all information available to the Tenant and
requested by the Landlord as to the responsibility, reputation,
financial standing and business of the proposed assignee or
sub-tenant. Within fifteen (15) days after receipt by the Landlord
of such request for consent and of all information which the
Landlord shall have requested hereunder (and if no such information
has been requested, within fifteen (15) days after receipt of such
request for consent) the Landlord shall have the right upon written
notice to the Tenant if the request is to assign this Lease or
sublet the whole of the Premises, to cancel and terminate this
Lease, or if the request is to sublet a part of the Premises only,
to cancel and terminate this Lease with respect to such part, in
each case as of a termination date to be stipulated in the notice of
termination which shall be not less than sixty (60) days and not
more than ninety (90) days following the giving of such notice, and
in such event the Tenant shall surrender the whole or part (as the
case may be) of the Premises in accordance with such notice and Rent
shall be apportioned and paid to the date of
Dominion/Investors/Trillium Lease Kuhn & Company
- 18 -
surrender and, if only a part of the Premises is surrendered, Rent
payable shall thereafter abate proportionately. If the Landlord does
not exercise the foregoing right of cancellation, the Landlord's
consent to the proposed assignment or sublease shall not be
unreasonably withheld as long as the proposed assignment or sublease
complies with article 12.1;
(b) Notwithstanding any such assignment, sublease, or parting with
possession the Tenant shall not be released from performing any of
the terms, covenants and conditions of this Lease during the Term;
(c) If this Lease is assigned or if the Premises or any part thereof are
sublet or occupied by anybody other than the Tenant, and the Tenant
is in default under this Lease, the Landlord may collect Rent
directly from the assignee, sub-tenant or occupant, and apply the
net amount collected, or the necessary portion thereof, to the Rent
herein reserved;
(d) No assignment or sublease shall be made or proposed other than to
responsible persons, firms, partnerships or bodies corporate who are
experienced in and agree to carry on the type of business permitted
to be conducted by the Tenant, and who undertake to perform and
observe the obligations of the Tenant hereunder by entering into the
Landlord's form of agreement directly with the Landlord;
(e) The prohibition against assigning or subletting without the consent
required by this article 12.1 shall be construed to include a
prohibition against any assignment or sublease by operation of law;
and
(f) The consent by the Landlord to any assignment or sublease shall not
constitute a waiver of the necessity for such consent to any
subsequent assignment or sublease.
(g) The Tenant shall not suffer or permit any part of the Premises to be
used or occupied by any licensee, franchisee or concessionaire other
than in accordance with this article 12.
(h) The Tenant shall indemnify the Landlord for all costs incurred by it
in respect of the Tenant's request to sublet or assign and
preparation, review and consideration of any consent or document in
respect thereof.
(i) If a Tenant is a corporation or the Landlord has consented to an
assignment or subletting of this Lease to a corporation, then any
transfer or issue by sale, assignment, bequest, inheritance,
operation of law or other disposition, or by subscription, from time
to time of all or any part of the corporate shares of the Tenant or
of any parent or subsidiary corporation of the Tenant or any
corporation which is an associate or affiliate of the tenant (as
those terms are defined pursuant to the Canada Business Corporation
Act and amendments thereto), which results in any change in the
present effective voting control of the tenant by the person holding
such voting control at the date of execution of this Lease (or at me
date a Transfer of this Lease to a corporation is permitted) (all of
the foregoing being hereinafter referred to as a "Share Transfer")
and which does not receive the prior written consent of the Landlord
in each instance (which consent shall not be unreasonably withheld)
entitles the Landlord to terminate this Lease upon five (5) day's
written notice to the Tenant.
(j) The Tenant shall make available to the Landlord, or to its lawful
representatives, all corporate books and records of the Tenant for
inspection at all reasonable times, in order to ascertain whether
there has been any change in control of the Tenant corporation.
(k) Notwithstanding the foregoing, Section 12.1(i) and (j) shall not
apply to:
(i) a Share Transfer that occurs as a result of the death of the
transferor; or
(ii) if and so long as:
1. the Tenant is a public corporation whose shares are
traded and listed on any recognized stock exchange in
Canada or the United States; or
2. the Tenant is a private corporation but is controlled by
a public corporation defined as aforesaid.
Dominion/Investors/Trillium Lease Kuhn & Company
- 19 -
(l) Notwithstanding the foregoing, the Tenant may assign this Lease or
sublet the Premises to any corporation that is an affiliate of the
Tenant or Indemnifier upon giving notice of such assignment or
subletting to the Landlord, and provided the use of Premises by the
assignee or subtenant does not conflict with obligations the
Landlord may have to other tenants.
12.2 NO BULK SALE. No bulk sale of the goods and assets of the Tenant may
take place without first obtaining the written consent of the Landlord, which
consent shall not be unreasonably withheld, as long as the Tenant and the
purchaser are able to provide the Landlord with assurances, in a form
satisfactory to the Landlord, that the Tenant's obligations hereunder will
continue to be performed in a manner satisfactory to the Landlord, after
completion of the bulk sale.
12.3 NO ADVERTISING OF THE PREMISES. The Tenant shall not print, publish,
post, display or broadcast any notice or advertisements or otherwise advertise
the whole or any part of the Premises for purposes of an assignment or
subletting, and shall not permit any broker or other Person to do any of the
foregoing, unless the complete text and format of any such notice, advertisement
or offer is first approved in writing by the Landlord.
ARTICLE 13
OBSERVANCE OF LAW
13.1 GOVERNMENTAL REGULATIONS. The Tenant shall, at the Tenant's sole
cost and expense, comply with all of the requirements of all municipal,
provincial, federal and other applicable governmental authorities, now in force,
or which may hereafter be in force, pertaining to the Premises, and shall
faithfully observe in the use of the Premises all municipal by-laws and
provincial and federal statutes and regulations now in force or which may
hereafter be in force.
13.2 OBSERVANCE OF LAW. The Tenant covenants to comply with all
provisions of law including, without limiting the generality of the foregoing,
federal and provincial legislative enactments, building by-laws and other
governmental or municipal regulations which relate to the partitioning,
operation of equipment and use of the Premises, or to the making of any
repairs, replacements, alterations, additions, changes, substitutions or
improvements of or to the Premises, and to comply with all police, fire and
sanitary regulations imposed by any governmental, provincial or municipal
authorities or made by fire insurance underwriters and to observe and obey
governmental and municipal regulations and other requirements governing the
conduct of any business conducted in the Premises.
ARTICLE 14
LANDLORD'S COVENANTS
14.1 LANDLORD'S COVENANTS. Upon payment by the Tenant of the Rent herein
provided, and upon observance and performance of all covenants, terms and
conditions on the Tenant's part to be observed and performed, the Landlord
hereby covenants with the Tenant, subject to the covenants, terms and conditions
of this Lease:
(a) QUIET ENJOYMENT. For quiet enjoyment for the Term without hindrance
or interruption by the Landlord, or any other person or persons
lawfully claiming by, through or under the Landlord.
(b) SUPPLY OF EXTRA SERVICES. Upon request by the Tenant and in its sole
discretion, the Landlord may arrange for extra heating, ventilating
and air conditioning supply, electrical supply or for the supply of
other services to the Premises above those normally provided to
tenants of the Building or outside the Building Hours. The Tenant
will pay the Landlord in the manner in which Operating Costs are
paid from time to time, any and all additional costs and expenses of
the Landlord which may arise in respect of the use by the Tenant of
the Premises for business hours that are outside the Building Hours
or that may arise in respect of extra heating, ventilating and air
conditioning supply, electrical supply and other services which are
arranged to be provided to the Tenant as a result of its activities
over and above those normally provided to tenants of the Building or
outside the Building Hours, plus an administration fee equal to
fifteen percent (15%) of each component thereof. The Landlord
reserves the right to install, at the Tenant's expense, meters to
check the Tenant's consumption of electricity, water or other
utilities.
(c) USE OF COMMON AREAS AND FACILITIES. To permit the Tenant the use, in
common with others entitled thereto, of the Common Areas and
Facilities, subject to rules and regulations and such other
reasonable limitations imposed by the Landlord from time to time.
Dominion/Investors/Trillium Lease Kuhn & Company
- 20 -
(d) LANDLORD ENVIRONMENTAL LIABILITY. To assume complete responsibility
for, and hold the Tenant harmless from, all liability for
environmental conditions which existed on the Premises or in the
Building prior to the commencement of the Premises Preparation
Period
ARTICLE 15
FIXTURES AND ALTERATIONS
15.1 INSTALLATION BY TENANT.
(a) The Tenant shall not make or cause to be made any alterations,
additions or improvements or erect or cause to be erected any
partitions or install or cause to be installed any Trade Fixtures,
exterior signs, floor covering, interior or exterior lighting,
plumbing fixtures, drains of any kind, shades, awnings, exterior
decorations or make any changes in respect of the Premises or
connect any apparatus to the Building's electrical plumbing or other
utility system without first obtaining the Landlord's written
approval thereto, such approval not to be unreasonably withheld in
the case of alterations, additions or improvements to the interior
of the Premises. It is expressly agreed that the Tenant, at its sole
expense, shall have the following signage rights and obligations:
(i) Elevator Cabs - the Tenant shall have the right to affix its
logo or corporate name to the control of the elevator cab
serving the main lobby of the Premises, subject to the
Landlord's approval, acting reasonably;
(ii) Interior - the Tenant shall have the right to affix its logo
and/or corporate name signage to the interior of the Premises,
immediately outside the entrance to its Premises (such as on
or adjacent to the Premises entry doors), and in the elevator
lobbies where the Tenant is the sole tenant of that floor of
the Building, subject to the Landlord's approval, acting
reasonably;
(iii) Exterior - the Tenant shall have the right to affix its logo
or corporate name signage on the exterior of the Building and
on the grounds adjacent to the Building, subject to the
Landlord's approval, acting reasonably;
(iv) Installation and Maintenance - the Tenant shall pay all costs
of installing and maintaining the above signage subject to all
governmental requirements and the Landlord's reasonable rules
and regulations imposed from time to time.
(b) All fixtures installed by the Tenant shall be new, provided that the
Tenant may install its usual Trade Fixtures in its usual manner so
long as such installation has first been approved by the Landlord
and does not damage the structure of the Building.
(c) The Tenant shall not install in or for the Premises any special
locks, safes, or apparatus for airconditioning, cooling, heating,
illuminating, refrigerating or ventilating the Premises without
first obtaining the Landlord's written approval thereto.
(d) When seeking the approval of the Landlord as required by this
article 15.1, the Tenant shall present to the Landlord for its
approval, all plans and specifications particulars of contractors,
schedule, compliance with all governmental regulations and potential
interference to other tenants in respect of the proposed work. On
completion of the work, the Tenant shall pay the Landlord's costs of
approving and carrying out the work, or any portion of it, plus a
fee of 10%.
(e) Any Tenant's repairs or work described in this Article 15 made by
the Tenant without the prior written consent of the Landlord or
which is not made in accordance with the drawings and specifications
approved by the Landlord or governmental approvals shall, if
requested by the Landlord, be promptly removed by the Tenant, at
the Tenant's expense and the Premises restored to their previous
condition. The Tenant expressly indemnifies the Landlord from any
and all actions including liability and damage as a result of any
Tenant repairs or work, including liens in respect thereof.
Dominion/Investors/Trillium Lease Kuhn & Company
- 21 -
(f) The Landlord may require that any maintenance or Tenant's repairs or
work or improvements installed to benefit the Premises be performed
by the Landlord at the Tenant's cost if they affect,
(i) the structure of the Premises;
(ii) the Common Areas and Facilities;
(iii) any part of the Land or Building; or
(iv) roofing, mechanical, heating, plumbing, air-conditioning or
electrical systems in the Building.
15.2 TENANT'S FIXTURES.
(a) So long as the Tenant is not in default hereunder, at the expiration
of the Term, the Tenant shall then have the right to remove its
Trade Fixtures from the Premises, but shall make good any damage
caused to the Premises resulting from the installation or removal
thereof, provided that all alterations, additions and improvements
constructed and installed in the Premises and attached in any manner
whatsoever to the floors, walls or ceilings, including any floor
covering and light fixtures, are hereby deemed not to be Trade
Fixtures and shall remain upon and be surrendered to the Landlord
with the Premises, except to the extent the Landlord requires
removal thereof pursuant to this Lease;
(b) If the Tenant fails to remove its Trade Fixtures and restore the
Premises as required by this Lease, all such Trade Fixtures shall
become the property of the Landlord except to the extent that the
Landlord continues to require removal thereof pursuant to this
Lease;
(c) Should the Tenant abandon the Premises or should this Lease be
terminated before the proper expiration of the Term due to a default
on the part of the Tenant, then in such event, as of the moment of
default by the Tenant, all Trade Fixtures and furnishings of the
Tenant (whether or not attached in any manner to the Premises)
shall, except to the extent the Landlord requires the removal
thereof pursuant to this Lease, become and be deemed to be the
property of the Landlord without indemnity to the Tenant and as
additional liquidated damages in respect of such default but without
prejudice to any other right or remedy of the Landlord.
(d) Notwithstanding that any Trade Fixtures, furnishings, alterations,
additions, improvements or fixtures are or may become the property
of the Landlord, the Tenant shall forthwith remove all or part of
them and shall make good any damage caused to the Premises resulting
from the installation or removal thereof, all at the Tenant's
expense, should the Landlord so require by notice to the Tenant.
(e) If, after receipt of a notice from the Landlord, the Tenant fails to
promptly remove any Trade Fixtures, furnishings, alterations,
additions, improvements and fixtures in accordance with such notice,
then the Landlord may enter the Premises and remove all or part of
such Trade Fixtures, furnishings, alterations, additions,
improvements and fixtures without any liability and at the Tenant's
expense.
15.3 NOT TO OVERLOAD FLOORS OR SERVICES. The Tenant shall not overload
the floor of the Premises nor install any utility, electrical or mechanical
facility or service of which the Landlord does not approve or which might
overload the capacity of any utility, electrical or mechanical facility in the
Premises or the Building.
15.4 TENANT SHALL DISCHARGE ALL LIENS. The Tenant shall not create or
grant any mortgage, conditional sale agreement, security under section 427 of
The Bank Act or under the Personal Property Security Act or any other
encumbrance in respect of its improvements, Trade Fixtures, goods or merchandise
or permit any such mortgage, conditional sale agreement, security under section
427 of The Bank Act or under the Personal Property Security Act or other
encumbrance to attach to the Premises. The Tenant shall promptly pay all its
contractors and material men ana shall do any and all things necessary so as to
minimize the possibility of a lien attaching to the Premises or to the Land or
Building. The Tenant shall permit the Landlord to post and keep posted on the
Premises any notices that the Landlord desires to post pursuant to the Builders
Lien Act or other legislation. If and when any builder's lien or other lien for
work, labour, services or materials supplied to or for the Tenant or for the
cost of which the Tenant may be liable in any way or claims therefor shall arise
or be filed or if any such mortgage, conditional sale agreement, security under
section 427 of The Bank Act or under the Personal Property Security Act or other
encumbrance shall attach, the Tenant shall procure the discharge thereof within
five (5) days after receipt of notice thereof, including any certificate of
action
Dominion/Investors/Trillium Lease Kuhn & Company
- 22 -
registered in respect thereof, by payment or in such other manner as may be
required or permitted by law and failing which, the Landlord, in addition to all
other remedies under this Lease, may make any payments required to procure the
discharge of any such lien, mortgage, conditional sale agreement, security or
other encumbrance and shall be entitled to be reimbursed by the Tenant forthwith
upon demand. The Landlord's right to such reimbursement shall not be affected or
impaired if the Tenant shall establish or claim that any lien, mortgage,
conditional sale agreement, security or other encumbrance so discharged was
without merit or excessive or subject to any abatement, setoff or defence.
15.5 LANDLORD'S SECURITY INTEREST. The Tenant hereby grants the Landlord
a charge upon, and shall, upon the request of the Landlord, execute the
necessary documentation to provide the Landlord with a charge pursuant to the
Personal Property Security Act upon the Trade Fixtures, all Tenant's fixtures,
and other of the Tenant's assets as may be located upon the Premises, in order
to secure the Tenant's obligations to pay Rent to the Landlord pursuant to this
Lease.
ARTICLE 16
DAMAGE AND DESTRUCTION
16.1 INTERPRETATION. In this Article:
(a) "Damage" means damage to property of the Landlord (including but not
limited to, smoke and water damage and damage that amounts to
destruction) that:
1. for the purpose of Section 16.2 results from a peril against
which the Landlord is insured and actually receives proceeds of
insurance or which the Landlord deems to be Damage; and
2. for the purpose of Section 16.3 results from any cause, and
"Damaged" has a corresponding meaning; and
(b) "Usable" means usable by the Tenant for the purpose contemplated by
this Lease.
16.2 DAMAGE TO THE PREMISES.
(a) Subject to Section 16.3, if there is Damage the Landlord shall
repair or reconstruct the Damage promptly. If part or all of the
Premises is not Usable because of the Damage, Rent shall abate in
the proportion that the Floor Area of the part of the Premises that
is not Usable is to the Floor Area of the whole of the Premises,
from the date of the Damage until the earlier of:
1. the date when the whole of the Premises is Usable again; or
2. thirty (30) days after substantial completion of the repair of
the Damage.
(b) When the Landlord notifies the Tenant that it has completed enough
repair of the Damages to enable the Tenant to start the Tenant's
work, as set out in Schedule "B " the Tenant shall complete the
Tenant's work and re-open the whole of the Premises for business as
soon as possible but in any case within thirty (30) days after the
Landlord's notice. No capital allowance, inducement to lease, or
other payment that was made to the Tenant at the time of, or in
connection with the original construction of the Premises shall be
payable by the Landlord to the Tenant.
(c) Notwithstanding subsections (a) and (b), if the Premises are not
usable for a period of 30 days, and the Landlord is unable to
provide comparable space to that of the Premises, the Tenant may
terminate this Lease by giving notice to the Landlord within 10 days
after the expiry of the said 30 day period.
16.3 DAMAGE TO OR EXPROPRIATION OR CONDEMNATION OF THE LANDS.
(a) Despite anything else in this Lease, if:
1. more than thirty-five percent (35%) of the Floor Area of the
Building is Damaged, expropriated or condemned whether or not
the Premises are Damaged, expropriated or condemned; or
Dominion/Investors/Trillium Lease Kuhn & Company
- 23 -
2. more than fifty percent (50%) of the Floor Area of the Premises
is Damaged, expropriated or condemned or more than fifty
percent (50%) of the Floor Area of the Building is Damaged,
expropriated or condemned whether or not the Premises are
Damaged, expropriated or condemned,
the Landlord may, by written notice to the Tenant within ninety (90)
days after the Damage, expropriation or condemnation, terminate this
Lease, effective thirty (30) days after the notice, and all Rent
will abate as of the effective date of the termination.
(b) If the Building or part thereof shall be damaged or destroyed and
such damage or destruction shall, in the opinion of the Landlord
reasonably arrived at, materially interfere with the enjoyment of
the Premises by the Tenant, the Rent in respect of the Premises
shall abate in proportion to such interference during the period
such interference shall continue.
(c) If the Land is Damaged, expropriated or condemned to the extent
described in section 16 and the Landlord does not terminate this
Lese, the Landlord shall promptly rebuild or repair the Land to the
extent of its obligations under its leases for Floor Area of the
Premises but the Landlord may use plans and specifications and
working drawings that are different in content from those used in
the original construction of the Land or any part of it and the
rebuilt or repaired Land may be different in configuration or design
from the Land before the Damage, expropriation or condemnation.
ARTICLE 17
EXPROPRIATION
17.1 EXPROPRIATION. During the Term, if the Land or Building, or any part
thereof, shall be acquired or condemned by expropriation for any public or
quasi-public use or purpose, then the Landlord and the Tenant shall cooperate
with each other so as to receive the maximum award to which they may be
entitled, but they may separately claim, receive and retain awards of
compensation for the loss of their respective interest, if any. The Tenant shall
not have any interest in any award in respect of expropriation of the Land, and
hereby assigns any interest in such award to the Landlord. Neither the Landlord
nor the Tenant shall have any claim against the other in respect of the said
loss or the unexpired Term.
ARTICLE 18
DEFAULT, REMEDIES, TERMINATION
18.1 RIGHT TO RE-ENTER. If and whenever all or part of the Minimum Rent
or any other amounts payable by the Tenant under this Lease are not paid on the
day appointed for payment, whether demand for payment has been made or not, or
if the Tenant shall fail to comply with any of the covenants hereunder after the
Landlord has given notice to the Tenant in writing stating the default with
reasonably sufficient particulars and requiring it to be remedied and such
default has not been remedied by the Tenant within ten (10) days after receipt
of such notice, or such longer period as may be reasonably necessary in view of
the nature of the default, or if the Tenant shall falsify any report required to
be furnished to the Landlord pursuant to the terms of this Lease or if the
Tenant or any Guarantor of this Lease shall become bankrupt or insolvent or file
any proposal, or if a Receiver is appointed of all or a portion of the Tenant's
property or any such Guarantor's property, or if the Tenant makes a sale in
bulk, or if the Tenant shall abandon the Premises, without the Tenant giving
written notice of its intention to reoccupy the Premises within 90 days, or
suffer this Lease or any of its assets to be taken under any writ of execution
or like process, or if any notice is filed under section 49 of the Personal
Property Security Act in respect of the Premises, or if re-entry is permitted
under any other terms of this Lease, then the Landlord, in addition to any other
rights or remedies it may have, shall have the immediate right of re-entry and
may remove all persons and property from the Premises and such property may be
removed and stored for the account of the Tenant or be sold by the Landlord (and
at the sole option of the Landlord, by way of private sale to the Landlord or
any third party) all without being deemed guilty of trespass, or becoming liable
for any loss or damage which may be occasioned thereby and to have again,
repossess and enjoy the Premises as of its former estate whether the Landlord
terminates this Lease or not, and notwithstanding the retaking of possession of
the Premises by the Landlord, the Landlord specifically reserves all remedies
and rights of action herein or at law or in equity provided. The Landlord or its
duly authorized agent shall be entitled to distrain for the Rent hereby reserved
including accelerated rent, if any, or for
Dominion/Investors/Trillium Lease Kuhn & Company
- 24 -
any money hereby made recoverable by distress upon the goods and chattels of the
Tenant, wheresoever situate, and upon any premises to which the same may have
been removed or wherever the same may be found. The Tenant hereby waives and
renounces the benefit of any present or future legislation taking away or
limiting the Landlord's right of distress.
18.2 DAMAGES. In the event of any breach of this Lease by the Tenant, the
Landlord, in addition to exercising any other remedies available to the Landlord
and whether the Landlord terminates this Lease or not, may recover from the
Tenant all damages it may incur by reason of such breach, including the cost of
recovering the Premises, solicitor and his own client indemnity legal fees and
including the worth at the time of termination of the excess, if any, of the
amount of Rent and charges equivalent to Rent reserved in this Lease for the
remainder of the Term over the then reasonable rental value of the Premises for
the remainder of the Term, all of which amounts shall be immediately due and
payable by the Tenant to the Landlord. In any of the events referred to in
article 18.2 hereof, in addition to any and all other rights including the
rights referred to in this article and in article 18.2 hereof, the full amount
of the current month's Minimum Rent and Additional Rent and the next three (3)
months Minimum Rent shall immediately become due and payable, and the Landlord
may distrain for the same, together with any arrears and interest thereon
unpaid.
18.3 LANDLORD'S RIGHT TO PERFORM. If the Tenant shall fail to observe,
perform or keep any of the provisions of this Lease to be observed, performed
and kept by the Tenant, the Landlord may, but shall not be obliged to, at its
discretion and without prejudice, rectify the default of the Tenant, whether or
not performance by the Landlord on behalf of the Tenant is otherwise expressly
referred to in this Lease. For such purpose the Landlord may make any payment
and may do or cause to be done such things as may be required including, without
limiting the generality of the foregoing, entry upon the Premises. Any such
performance by or at the request of the Landlord shall be at the expense of the
Tenant and the Tenant shall pay to Landlord the cost thereof, plus an
administration fee of 15% of the costs, as Additional Rent. The Landlord may
perform all or any of the obligations hereunder by or through such managing or
other agency or agents as it may from time to time determine and the Tenant
shall pay to any such agent any monies payable hereunder to the Landlord, as
from time to time directed by the Landlord.
18.4 SURRENDER OF PREMISES. At the termination of this Lease, whether by
effluxion of time or otherwise, the Tenant shall vacate and deliver up
possession of the Premises in the same condition as the Premises were in at the
commencement of the Term, subject only to reasonable wear and tear and shall
surrender all keys to the Premises to the Landlord at the place then fixed for
payment of Rent and shall inform the Landlord of all combinations on locks,
safes and vaults (if any) in the Premises. Any guaranty of the Tenant's
obligations under this Lease shall survive the termination of the Lease.
ARTICLE 19
RIGHT OF ENTRY
19.1 RIGHT OF ENTRY. The Tenant shall permit the Landlord or its agents
and representatives to enter the Premises during normal business hours except
where otherwise agreed to examine the same and to show them to prospective
purchasers, lessees or mortgagees, and to enter the Premises during normal
business hours or at such other times mutually agreed between the Landlord and
the Tenant to make such repairs as the Landlord may deem necessary or desirable,
and the Landlord shall be allowed to take all material into and upon the
Premises that may be required therefor without the same constituting an eviction
of the Tenant in whole or in part and the Rent reserved shall in no way abate by
reason of loss or interruption of business of the Tenant or otherwise while
repairs are being made. During the six (6) months prior to the expiration of the
Term, the Landlord may place upon the Premises reasonable notices "To Let" or
"For Lease". The Tenant shall permit such notices to remain thereon without
hindrance or molestation. The Landlord may at any time within six (6) months
before the end of the Term enter the Premises and bring others at all reasonable
hours for the purposes of offering the Premises for rent. If the Tenant or the
Tenant's representative shall not be present to open and permit an entry into
the Premises, at any time, when for any reason an emergency or reasonably
apprehended emergency shall exist or be contemplated, the Landlord or its agent
may enter the same by a master key, or may forcibly enter the same, provided
reasonable care is exercised without rendering the Landlord or such agent liable
therefor, and without in any manner affecting the obligations and covenants of
this Lease. Nothing herein contained however, shall be deemed or construed to
impose upon the Landlord any obligation, responsibility or liability whatsoever,
for the care, maintenance or repair of the Premises or any part thereof except
as otherwise herein specifically provided.
ARTICLE 20
ASSIGNMENT BY LANDLORD
Dominion/Investors/Trillium Lease Kuhn & Company
-25-
20.1 ASSIGNMENT. In the event of the sale or lease by the Landlord of the Land
or Building or the assignment by the Landlord of this Lease or any interest of
the Landlord hereunder, and to the extent that any purchaser or assignee by
agreement with the Landlord has assumed the covenants and obligations of the
Landlord hereunder, the Landlord shall without further written agreement be
freed and relieved of liability upon such covenants and obligations.
ARTICLE 21
RULES AND REGULATIONS
21.1 RULES AND REGULATIONS. All rules and regulations adopted and promulgated
by the Landlord from time to time including those appended as Schedule "C" are
hereby made a part of this Lease and the Tenant agrees to comply with and
observe the same. The Tenant's failure to keep and observe such rules and
regulations and by-laws shall constitute a breach of this Lease in the manner as
if the same were contained herein as covenants. Written notice of any amendments
or supplements, shall be given to the Tenant and the Tenant agrees thereupon to
comply with and observe all such rules and regulations and by-laws and
amendments and supplements, provided that no such rules and regulations which
contradict any provisions of this Lease shall be binding upon the Tenant. The
Landlord shall not be responsible to the Tenant for the non-observance or
violation by any other tenant or person of the rules and regulations and
by-laws.
ARTICLE 22
STATUS STATEMENT, SUBORDINATION AND ATTORNMENT
22.1 STATUS STATEMENT. Within ten (10) days after request therefor by the
Landlord, or in the event of any sale, assignment, lease or mortgage of the
Premises or the Land or Building, the Tenant agrees to execute and deliver, in a
form supplied by the Landlord, a certificate to any proposed mortgagee or
purchaser or to the Landlord, certifying (if such be the case) that this Lease
is in full force and effect and that there are no deficiencies or set-offs
thereto, or stating those claimed by the Tenant.
22.2 SUBORDINATION AND ATTORNMENT. If required by any mortgagee or the holder
of any trust deed or indenture, this Lease and all rights of the Tenant
hereunder shall be subject and subordinate to all mortgages, trust deeds or
indentures now or hereafter existing which may now or hereafter affect the
Land or Building and to all renewals, modifications, consolidations,
replacements and extensions thereof; provided that whenever required by any
mortgagee, including any trustee under a trust deed or indenture, the Tenant
shall attorn to such mortgagee as the tenant upon the terms of this Lease. The
Tenant agrees to execute and deliver promptly, whenever requested by the
Landlord or by such mortgagee, an instrument of subordination or attornment, as
the case may be, as may be required of the Tenant. If the Tenant fails to do so
within seven (7) days after receiving the instrument, the Tenant hereby
irrevocably authorizes the Landlord to complete, execute and deliver the
instrument for and on behalf of and in the name of and as agent of the Tenant.
Upon delivery of the instrument of subordination or attornment, the Landlord
will use all reasonable efforts to obtain a non-disturbance agreement from the
said mortgagee.
22.3 ASSIGNMENT BY THE LANDLORD. If the Landlord sells, leases or otherwise
disposes of the Land or any part thereof containing the Premises, or if the
Landlord assigns this Lease or any interest of the Landlord hereunder, and to
the extent that the purchaser, lessee under such Lease or assignee thereof has
assumed the covenants and obligations of the Landlord hereunder, the Landlord
shall, thereupon without further agreement, be free and relieved of all
liability with respect to such covenants and obligations.
ARTICLE 23
MISCELLANEOUS
23.1 NO TACIT RENEWAL. If the Tenant remains in possession of the Premises
after the end of the Term without the execution and delivery of a new lease and
the Landlord accepts the Rent, there shall be no tacit renewal of this Lease
or the Term and the Tenant shall be deemed to be occupying the Premises as a
Tenant from month to month at a monthly rental payable in advance on the first
day of each month equal to 150% of the sum of all monthly Rent payable during
the last month of the Term and otherwise upon the same terms and conditions as
are set forth in this Lease, so far as applicable to a monthly tenancy.
23.2 SUCCESSORS. All rights and liabilities herein given to, or imposed upon
the respective parties hereto shall extend to and bind the several respective
heirs, executors, administrators, successors and assigns of the parties; and if
Dominion/Investors/Trillium Lease Kuhn & Company
-26-
there be more than one tenant, they shall all be bound jointly and severally by
the terms, covenants, and agreements herein. No rights, however, shall enure to
the benefit of any assignee of the Tenant unless the assignment to such assignee
has been approved by the Landlord in writing as provided in article 12 hereof.
23.3 ENTIRE AGREEMENT. This Lease and the Schedules attached hereto and forming
a part hereof set forth all of the covenants, promises, conditions, agreements
and understandings between the Landlord and the Tenant. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon the Landlord or the Tenant unless reduced to
writing and signed by them.
23.4 FORCE MAJEURE. Save as otherwise herein provided, in the event that
either party hereto shall be delayed or hindered in or by reason of strikes,
lock-outs, labour troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots insurrection, war or other
reason of a like nature not the fault of the party delayed in performing work or
doing acts required under the terms of this Lease, but not a delay caused by
lack of funds or other financial reason, then performance of such act shall be
excused for the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay.
23.5 NOTICES. Any notice, demand, request or other instrument which may be or
is required to be given under this Lease, shall be delivered in person or sent
by registered mail, postage prepaid and shall be addressed to the parties at
their respective address as set out in article 1.1 or at such other address as
the Landlord or Tenant may designate by written notice. Any such notice, demand,
request or consent shall be conclusively deemed to have been given or made on
the day upon which such notice, demand, request or consent is delivered, or if
mailed, then on the fifth business day following the date of the mailing, as the
case may be, and 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, provided
that in the case of interruption in the ordinary postal service, any notice,
demand, request or consent given hereunder shall be delivered and not mailed. At
the option of the Landlord, any notice may be delivered to the Tenant at the
Premises. If two or more persons are named as Tenant, such notice, demand,
request or other instrument shall be sufficiently given or made if and when the
same shall be given to any one of such persons.
23.6 ARTICLE AND ARTICLE NUMBERS. The section and article numbers appearing in
this Lease are inserted only as a matter of convenience and in no way limit the
scope or intent of such paragraphs and articles of this Lease.
23.7 GOVERNING LAW. The Lease shall be construed and governed by the laws of
the Province of British Columbia.
23.8 SEVERABILITY. Should any provision or provisions of the Lease and/or its
conditions be illegal or unenforceable, 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 as though the said
provision or provisions or conditions had never been included.
23.9 TIME. Time shall be strictly of the essence herein.
23.10 NO PARTNERSHIP. The Landlord and the Tenant are agreed that nothing
contained in this Lease nor any acts of the Landlord or the Tenant shall be
deemed to create any relationship between the Landlord and the Tenant other than
the relationship of landlord and tenant.
23.11 NO WAIVER. No condoning, excusing or overlooking by the Landlord or the
Tenant of any default, breach or non-observance by the Tenant or the Landlord at
any time or times in respect of any covenant, proviso or condition herein
contained shall operate as a condoning, excusing or overlooking of any
continuing or subsequent default, breach or non-observance, or so as to defeat
or affect in any way the rights of the Landlord or Tenant herein in respect of
any such continuing or subsequent default or breach, and no waiver shall be
inferred from or implied by anything done or omitted by the Landlord or the
Tenant save only expressed waivers in writing. All rights and remedies of the
Landlord in this Lease contained shall be cumulative and not alternative.
23.12 REGISTRATION. The Tenant agrees that the Landlord shall not be obliged to
deliver this Lease in form registerable under the Land Title Act and, unless the
Landlord requires the Tenant to register this Lease against the Land, covenants
and agrees with the Landlord not to register this Lease or any document relating
to it. If the Landlord permits
Dominion/Investors/Trillium Lease Kuhn & Company
-27-
registration of a short form of this Lease or any instrument in respect of it,
the Tenant will provide the Landlord a discharge of such a document to be filed
upon termination hereof.
23.13 OBLIGATIONS AS COVENANTS. Each obligation of any party hereto, expressed
in this Lease, even though not expressed as a covenant, is considered to be a
covenant for all purposes. All obligations of the Tenant shall, in so far as are
applicable, survive the termination of this Lease.
23.14 All AMOUNTS RECOVERABLE AS RENT. All amounts payable by the Tenant under
this Lease shall be deemed to be Rent and recoverable as Rent and the Landlord
shall have all the rights and remedies against the Tenant for default in payment
of any such amount as the Landlord has for default in payment of Rent.
23.15 NUMBER AND GENDER. Whenever the singular or masculine or neuter is used in
this Lease, same shall be construed to mean the plural or feminine or body
corporate where the context or the parties may so require.
23.16 COUNTERPARTS. This Lease and any amendment or other document signed
pursuant to its terms may be executed in counterparts and signed copies sent by
electronic transmission shall be binding on the party so signing.
23.17 INTERPRETATION. Each obligation of the Tenant under this Lease is a
covenant. Wherever it is provided in this Lease that a matter is at the option
of the Landlord or a matter is subject to the Landlord's consent, approval or
determination or that otherwise the Landlord has discretion, the Landlord's
discretion in such a matter will be absolute and such determination shall be in
the Landlord's sole, unfettered discretion unless otherwise specifically
provided in this Lease.
23.18 SUBLEASE. Subject to the terms and conditions of this Lease and including,
without limitation, the covenants of the Landlord herein, the Landlord and the
Tenant acknowledge that the Landlord is leasing the Premises as part of the
property (being the Land) leased in a head lease (the "Head Lease") from the
registered owner of the Land on which the Premises are located, being originally
George Biely and now Geraldine Biely, Arthur Fouks and Hershey Porte, Executors
of the Will of George Biely, Deceased, which was registered at the New
Westminster Land Title Office February 8, 1994 under registration number
BH43162, and therefore this Lease by the Landlord to the Tenant is in fact a
sub-lease of the Premises. The Landlord covenants and agrees with the Tenant to
pay all rent and additional rent due under the Head Lease as and when due, and
to perform all of the Landlord's covenants and obligations as the tenant in the
Head Lease. The Landlord further covenants and agrees with the Tenant to enforce
for the benefit of the Tenant the covenants and obligations of the head landlord
under the Head Lease with the intent that the benefit of such covenants and
obligations extend to the Premises to be enjoyed by the Tenant. In any case
where the Landlord reserves the right to enter the Premises pursuant to this
Sub-Lease, such right shall enure to the benefit of the head landlord under the
Head Lease as well as the Landlord. The Tenant covenants and agrees to be bound
by the terms and conditions contained in the Head Lease.
23.19 OBLIGATION OF THE FUND. This Agreement is not personally binding upon and
resort shall not be had nor shall recourse or satisfaction be sought from the
private property of any of the unitholders of Investors Real Property Fund ("the
Fund"), trustees, officers, directors, employees, or agents of the trustee or
manager of the Fund, it being intended and agreed that only the property of the
Fund shall be bound by this Agreement. Except to the extent set out in this
Lease, the obligations of the Landlord pursuant to this Lease are joint and
several.
IN WITNESS WHEREOF the parties have executed this Lease as of the date first
above written, and in the case of each corporate party its seal was affixed in
the presence of its duly authorized Officers.
BY THE LANDLORD:
The Common Seal of Dominion Construction )
Company Inc. was hereunto affixed in the presence )
of: )
)
/s/ Dennis Burnham )
---------------------- )
Title: PRESIDENT & CEO )
Dominion/Investors/Trillium Lease Kuhn & Company
-28-
Title: )
)
--------------------------------------------- )
Landlord's GST # )
The Common Seal of 391102 B.C. Ltd. was )
hereunto affixed in the presence of: )
)
/s/ Roger G. J. Blanchette )
--------------------------------------------- )
Title: Roger G. J. Blanchette Vice President )
)
/s/ Murray J. Mitchell )
--------------------------------------------- )
Title: Murray J. Mitchell Vice President )
)
--------------------------------------------- )
Landlord's GST # )
)
BY THE TENANT:
The Common Seal of Trillium Digital Systems )
Canada, Ltd. was hereunto affixed in the )
presence of: )
)
/s/ [ILLEGIBLE] )
--------------------------------------------- )
Title: President )
)
--------------------------------------------- )
Title: )
BY THE GUARANTOR:
The Common Seal of Intel Corporation was )
hereunto affixed in the presence of: )
)
/s/ [ILLEGIBLE] )
--------------------------------------------- )
Title: )
)
--------------------------------------------- )
Title: )
Dominion/Investors/Trillium Lease Kuhn & Company
SCHEDULE A - 4621 CANADA WAY
[BUILDING B THIRD FLOOR PLAN]
[BUILDING B FOURTH FLOOR PLAN]
SCHEDULE B
LANDLORD'S WORK
SCHEDULE B
The architectural specifications for the Building are outlined as follows:
- The exterior buildings will be faced with rural panel system with tinted
window in aluminum frames and glazed spandrel panels in an aluminum
curtain wall system.
- Windows consist of thermally broken sections, double-glazed, with tinted
reflective glass.
- Typical general office ceiling heights 8ft. 6 inch to underside of T-bar.
- The main floor lobby provides for a two-storey volume, approximately 19
feet in height.
- Stairs connect all floors including the two parking levels and all floors
are designed for potential multi-tenant occupancy.
- Acoustical control will achieve an NC rating of NC37 maximum.
- The ground floor lobby will consist of granite or slate floors, sculptured
drywall ceilings with recessed decorative lighting, walls of stone and/or
vinyl and entrances will be fullheight glazed.
- Three geared elevators with quality standard cab design are included and
are programmed to accommodate security card readers. These elevators will
service the office floors and two parking levels.
- Washroom walls will be covered in part height with ceramic tiles, floors
to be ceramic tile with drywall ceilings and vanities of plastic laminate.
- General office areas will be finished with acoustic lay in tiles.
- Exterior windows will be provided with horizontal Venetian blinds.
- Roof to be metal stand-up scam over central portion and flat roofs will be
of a 10 year extended warranty and will meet RCABAC standard
specification.
Landscaping
The proposed new development (Phase 2) of the Business Park at Canada Way and
Wayburne Drive will be in a campus like setting with large areas of open green
space. Groups of Western Red Cedars and Douglas Firs will frame the buildings
while directing prime views out to the North Shore Mountains. Raywood Ash trees
line Canada Way and Red Maples alone Wayburne Drive offer spectacular fall
colour. Flowering Japanese Cherries are planted in double row in the center of
the visitor parking court and around the perimeter. Accessible walkways
interconnect the buildings, outdoor use areas and bus stops at Canada Way.
Bicycle parking is provided at building entrances for visitors. The main
entrances are framed by west-coast plantings of Vine Maples, Pacific Dogwood,
Rhododendrons, ferns and other massive plants. The Canada Way entrance features
an outdoor plaza, which doubles as a sunny outdoor sitting area for employees
and visitors and features a focal water element. Terraced gardens with boulders,
low walls, low maintenance plantings and columnar Hornbeam tress flank the
buildings and enhance the park like setting.
STRUCTURAL
Sub-Structure
The foundation design for Canada Way Phase 2 will be based on the Geotechnical
report prepared by Cook Pickering and Doyle Ltd. dated January 3, 1991 and
November 25, 1998.
The building foundation will consist of strip and pad footings. Strip footings
will be a minimum of 400-mm wide and mounded at least 500-mm below grade to
prevent any frost action that may occur.
The slab-on-grade will be underlain by a drainage layer, which will consist of a
minimum of 150 mm of clean granular fill. This drainage layer and the footing
drains around the perimeter of the basement will connect to the storm drainage
system.
Structure
General
The structure will be designed in accordance with the British Columbia Building
Code 1998.
The structural floor system for the entire structure inclusive of all upper
office floors of Building A, B, and C, and suspended parking levels, will be
cast in place reinforced concrete slabs and slab bands supported by reinforced
concentrate columns, elevator shafts, stair shafts and shear-walls.
This system will provide good vibration control characteristics and an
economical serviceable floor with an inherent ability to provide column free
spaces where necessary. The perimeter basement retaining walls, elevator and
stair shafts, and shear-walls will be cast in place reinforced concrete.
The lateral system will consist of the reinforced concrete stair and elevator
shafts plus reinforced concrete walls at the washroom locations. These lateral
elements will carry down to foundation. In addition, the perimeter concrete
retaining walls will be used for lateral load resistance at the lower levels.
Parking Levels
The car parking levels will be designed for a live load of 2.4 kPa (50 psf).
Access to loading bay and loading bay area will be designed for 12 kPa (250
psf). Parking at foundation level will consist of a concrete slab on grade.
Corrosion Protection System in accordance with CAN.CSA-S413-94 Parking
Structures will be provided for all suspended parking levels.
Upper Floor Office Levels
The floors are predominantly office area and will be designed for a minimum live
load of 3.1kPa(65psf).
Roof
Roof will be cast in place concrete construction similar to the office floor.
The design loading will be the applicable snow loads with provision for snow
build-up where applicable.
MECHANICAL
Design Criteria
Outdoor Conditions
Winter- -9C DB, 25 km/hour wind speed
Summer- +28C DB, 20C WB, 122 km/hour wind speed
Indoor Conditions
Winter- 22C DB
Summer- 24C DB
Humidity- No humidification. De-humidification as by-product of
cooling system operation.
Night Setback- To 1 8C DB in winter
People
One person per 140 sq. ft. of occupied office area.
Ventilation Air
35 cfm per person.
Washroom Exhaust
2.0 cfm per sq. ft. of washroom area.
Electrical Loadings
The cooling loads will be calculated using 3.0 watts (lights plus plug
loads) per sq.ft. Of air-conditioned area.
HVAC Systems
The office air conditioning will be provided by a 4-pipe fan coil (F.C.) system
with each fan coil being located in the ceiling space in a specific thermal
zone.
Cooling will be provided by an air-cooled water chiller and heating by a natural
gas-fired water boiler.
Outside air will be supplied to the building by an air unit located within the
rooftop mechanical room. This unit will be complete with 60% ASHRAE efficiency
filters, heating coil, cooling coil and fan. The ductwork from this unit will
deliver the conditioned outside air to each fan coil within the building.
Part load operation and failure protection coverage will be provided by the use
of multiple components as noted below:
- Individual fan coil units shall be provided for each corner perimeter
zone, each different solar exposure and for the interior areas. Overall,
the number of fan coil units for the Building A will
average approximately 1/900 sq.ft. and for Buildings B and C will average
approximately 1/700 sq.ft.
- The cooling plant will consist of one air-cooled electric chiller
with 2 compressors. Chilled water will be circulated throughout the
building by 2
chilled water pumps.
- A gas-fired boiler will be used to generate heating water for
heating the building. Heater water will be circulated throughout the
building by two heating water Pumps.
Washrooms and janitors rooms will be exhausted at a rate of 2 cfm/sq.ft. The
exhaust air will be discharged at the roof of the building via a vertical shaft.
A 10" diameter capped-off washroom connection will be provided on each floor to
allow exhaust from additional washrooms (outside the typical men's' and women's'
washrooms provided on each floor) which may be required.
A general exhaust/relief shaft will be provided allowing for connection points
on each floor, to allow relief of excess outside air supplied to the building as
well as capacity to exhaust for tenant uses such as Lunch Rooms, Blue Printing
Rooms and Copying Rooms.
The parkade will be ventilated at a rate of 0.75 cfm/sq. ft. A CO monitoring
system will control the operation of the carpark system and provide an alarm
whenever CO concentrations are outside the desired limits.
Miscellaneous mechanical components and systems will be included in
support of the normal and Code required use of the building including:
- Telephone room ventilation.
- Electrical room ventilation.
- Elevator room ventilation.
- Parkade vestibule pressurization.
- Others as required.
A complete Direct Digital Control (DDC) system will be provided to control
all building heating, cooling and air systems.
This system will include a head end PC with 17" colour monitor, Pentium II
processor and colour printer with dynamic colour graphics, trend logging
and alarms for the building mechanical systems.
Plumbing Systems
Hot, cold, sanitary and storm water systems will be provided to meet all
of the requirements of the Plumbing Code including handicap provisions.
Plumbing fixtures will be good quality commercial products that include:
- Floor mounted water closets with flush valves.
- Wall mounted urinals with flush valve.
- Countertop lavatories with 4" center sets.
.../4
Electric domestic hot water tanks located on every 3rd floor in Buildings B and
C will generate domestic hot water. In Building A, domestic hot water will be
generated by a gas-fired domestic hot water tank located in the rooftop
mechanical room.
Indoor and outdoor hose bibs will be installed in support of window
washing, parkade clean up, sidewalk washdown and normal maintenance
activities.
Fire Protection
A complete fire protection system will be installed to the requirements of
the local Fire Marshall and the standards noted below:
- Wet system in office floors to NFPA-13.
- Dry system in parkade to NVPA-13.
- Standpipes and hose valves as required by NFPA-14.
- Fire extinguishers as required by NFPA-10.
System Characteristics
Some of the general system characteristics exhibited by the selected
mechanical system related to comfort and conversation are noted below:
- Constant room air circulation rates.
- Constant ventilation air delivery volumes.
- High of outside air ventilation rates.
- Excellent energy performance.
- Low temperature heating pipe loops that minimize random pipe losses.
- Multiple components allowing efficient, part-load performance and a
level of failure protection.
ELECTRICAL SYSTEMS
Electrical Service
The project will have a separate 12.5kV (high voltage) underground electrical
service from BC Hydro to the main electrical room below Building A. The main
electrical room includes a 2500/3300 kVA transformer converting the high voltage
to 600/347V - 3PH - 4 wire for distribution.
Power Distribution
Power is distributed to sub-electrical rooms in the parking below Buildings B
and C at 347/600V.
In each building, transformers in the floor electrical rooms will supply
120/208-Volt receptacle power. There is one 120/208V-panelboard fed from its own
transformer on each floor located in the two floor electrical rooms for floors
2, 3, and 4. Floor 5 has a single electrical room. System Capacity and wall
space is provided in each electrical room for a second transformer and panel.
Transformer capacity for tenant 120V power is approximately 2.8 Watts per square
foot allowing for a 1.5 non-linearity factor (without the non-linearity factor
the capability is approximately 4.0W/ft2). The non-linearity factor deals with
the expected high density of PC computer usage.
120/208 Volt and 347/600-Volt distribution centers and panelboards are 3 phase,
4 wire with full capacity solid neutral complete with bolt on, thermal-magnetic
molded case breakers. Generally panelboards will provide circuits for
connections to devices located only on the same floor as the panelboard. This
design uses series rated circuit breakers for fault current reduction in
accordance with the requirements of the Canadian Electrical Code.
A separate series of 120/208 Volt panels are provided to feed the fan coil
units. These panels are located, one per electrical room and are all fed from
a separate transformer in the building main electrical room.
600V power is used to feed larger mechanical loads directly. The 347V is used to
feed fluorescent light throughout.
Telephone and CATV
A new underground BC Telephone Co. Service will be provided to a main Telephone
room located below building A. An extra service duct is provided to enable
installation of future alternative signal carriers. The telephone service ducts
will also include the main CATV service cable. Sub-main telephone rooms are
provided below each of Building B and C.
The sub-main telephone rooms are connected to telephone closets in each building
located two per floor via feeder conduits. Additional empty feeder conduits
will be provided to allow the future installation of alternative communication
technology.
A zone distribution conduit system or cable tray is not provided. A main
telephone service conduit from the nearest base building telephone closet to the
tenants telephone switch is to be provided by each tenant.
Lighting
Lighting energy use will meet or extend the requirement of ASHRAE Standard 90.
Generally the lighting system will provide open office lighting to meet the
illumination levels suggested by the illuminating Engineering Society of North
America (IES) for areas using VDTs (Video Display Terminals).
The main luminaire will be 20" x 48" to fit into 60" boiler.
Outside air will be supplied to the building by an air unit located within the
rooftop mechanical room. This unit will be used that will sense the failure of
the "Pathway" circuits and will trip the battery packs.
All non-incandescent lighting will be run at 347V. Most circuits will run via
the low voltage relays with exceptions for lighting in the electrical rooms and
some service rooms where the lighting will be line voltage switched. The
"Pathway" lights on each floor will be left on at all times; these will function
as Security lights as well.
All interior and exterior lighting except those luminaires on "Pathway" will be
controlled by relays in a low voltage lighting control system. The system will
consist of relays panels located beside each lighting panel. A centrally located
electronic time clock will provide for central lighting control.
Exterior lighting will use Metal Halide or compact fluorescent sources with
lighting levels suitable to the usage.
Fire Alarm System
The buildings will have a fully supervised, zone fire alarm system that will use
the sprinkler system as primary detection with enunciator panels in each lobby.
Security Alarm System
General: A centralized security system is provided for common areas of the
buildings incorporating access control, door monitoring.
Door Alarm: All perimeter doors to be monitored using concealed high security
magnetic door contact switches.
Access Control/Card Readers: Access control is proposed with proximity card
readers at designated entry points. A card reader would momentarily release the
adjacent door and allow access.
Tenants: Tenants would supply their own security at the entrance to their space
and internal to their space as they see fit. Tenant security devices can be
interfaced with the base building system.
Parkade: Entrance to the parkade will be through proximity card controlled
gates. As well the parkade will be painted a light colour, be well lit and have
a duress system throughout.
-31-
SCHEDULE "C"
RULES AND REGULATIONS
The Tenant shall observe the following Rules and Regulations (as amended,
modified or supplemented from time to time by the Landlord as provided in the
Lease):
1. The Tenant shall not use or permit the use of the Premises in such manner as
to create any objectionable noises, odours or other nuisance or hazard, or
breach any applicable provisions of municipal by-law or other lawful
requirements applicable thereto or any requirements of the Landlord's insurers,
shall not permit the Premises to be used for cooking (except with the Landlord's
prior written consent) or for sleeping, shall keep the Premises tidy and free
from rubbish, shall deposit rubbish in receptacles which are either designated
or clearly intended for waste and shall leave the Premises at the end of each
business day in a condition such as to facilitate the performance of the
Landlord's janitorial services in the Premises, if applicable.
2. The Tenant shall not abuse, misuse or damage the Premises or any of the
improvements or facilities therein, and in particular shall not deposit rubbish
in any plumbing apparatus or use it for other than purposes for which it is
intended, and shall not deface or mark any walls or other parts of the Premises.
3. The Tenant shall not perform, patronize or (to the extent under its control)
permit any canvassing, soliciting or peddling in the Building, shall not install
in the Premises any machines vending or dispensing refreshments or merchandise
and shall not permit food or beverages to be brought to the Premises except by
such means, at such times and by such persons as have been authorized by the
Landlord.
4. The entrances, lobbies, elevators, staircases and other facilities of the
Building are for use only for access to the Premises and other parts of the
Building and the Tenant shall not obstruct or misuse such facilities or permit
them to be obstructed or misused by its agents, employees, invitees or others
under its control.
5. No safe or heavy office equipment shall be moved into or about the Building
by or for the Tenant unless the consent of the Landlord is first obtained and
unless all due care is taken. Such equipment shall be moved upon the appropriate
steelbearing plates, skids or platforms and subject to the Landlord's direction,
and at such times, by such means and by such persons as the Landlord shall have
approved. No furniture, freight or bulky matter of any description shall be
moved in or out of the Premises or carried in the elevators except during such
hours as the Landlord shall have approved. Hand trucks and similar appliances
shall be equipped with rubber tires and other safeguards approved by the
Landlord, and shall be used only by prior arrangement with the Landlord.
6. The Tenant shall permit and facilitate the entry of the Landlord, or those
designated by it, into the Premises for the purpose of inspection, repair,
window cleaning and the performance of other janitorial services, and shall not
permit access to main heater ducts, janitorial and electrical closets and other
necessary means of access to mechanical, electrical and other facilities to be
obstructed by the placement of furniture or otherwise. The Tenant shall not
place any additional locks or other security devices upon the doors of the
Premises without the prior written approval of the Landlord and subject to any
conditions imposed by the Landlord for the maintenance of necessary access.
Dominion/Investors/Trillium Lease Kuhn & Company
-32-
7. The Landlord may require that all or any persons entering and leaving the
Building at any time other than the Building Hours to satisfactorily identify
themselves and register in books kept for the purpose and may prevent any person
from entering the Premises unless provided with a key thereto and a pass or
other authorization from the Tenant in a form satisfactory to the Landlord and
may prevent any person removing any goods therefrom without written
authorization.
8. The Tenant shall refer to the Building only by the name from time to time
designated by the Landlord for it and shall use such name only for the business
address of the Premises and not for any promotion or other purpose, except as
expressly permitted by the Landlord in writing.
9. The Tenant shall not interfere with window coverings installed upon exterior
windows, and shall close or (if such window coverings are remotely controlled)
permit to be closed such window coverings during such hours as the Landlord may
require, and shall not install or operate any interior drapes installed by the
Tenant so as to interfere with the exterior appearance of the Building.
10. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by the Tenant on any part of the outside or inside
of the Premises or Building without the prior written consent of the Landlord,
which consent may be arbitrarily withheld. In the event of any violation of the
foregoing by the Tenant, the Landlord may remove same without any liability and
may charge the expense incurred by such removal to the Tenant violating this
rule as Additional Services. Signs on doors, windows, walls and the directory
shall be inscribed, painted or affixed for the Tenant by the Landlord at the
expense of the Tenant as Additional Services and shall be of a size, colour and
style acceptable to the Landlord.
11. The Tenant shall not permit its employees, agents and invitees while on the
Lands to smoke anywhere except in areas designated by the Landlord for smoking,
if any, and in compliance with any municipal or governmental regulation of
smoking applicable to the Building.
The foregoing Rules and Regulations, as from time to time amended, are not
necessarily of uniform application, but may be waived in whole or in part in
respect of other tenants without affecting their enforceability with respect to
the Tenant and the Premises, and may be waived in whole or in part with respect
to the Premises without waiving them as to future application to the Premises,
and the imposition of Rules and Regulations shall not create or imply an
obligation of the Landlord to enforce them or create any liability of the
Landlord for their non-enforcement.
Dominion/Investors/Trillium Lease Kuhn & Company
-33-
SCHEDULE "D"
OTHER TERMS AND CONDITIONS
D1. LEASEHOLD IMPROVEMENT ALLOWANCE. The Landlord will provide to the Tenant a
leasehold improvement allowance in the amount of $23.00 per square foot of the
Floor Area of the Premises leased by the Tenant pursuant to this Lease. The
Tenant shall have the right, upon notice to the Landlord, to delay undertaking
of the leasehold improvement work on a portion of the Premises. The leasehold
improvement allowance will be paid or credited to the Tenant by the Landlord as
follows:
(a) Upon the Commencement Date of the Term, provided the Tenant supplies
the Landlord with reasonable evidence of expenditure of the leasehold
improvement allowance on improvements that will benefit the Premises; or
(b) To the extent that the Tenant has elected to delay undertaking the
leasehold improvement work on a portion of the Premises, the remaining leasehold
improvement allowance will be credited by the Landlord to the Tenant's Rent
obligations pursuant to the Lease.
D2. RENTAL CONCESSION. The Tenant shall not be obligated to pay Minimum Rent or
Operating Costs for a period equivalent to 6 months commencing on the expiry of
the Premises Preparation Period and ending on the day before the Commencement
Date.
D3. STORAGE. Upon the Tenant giving reasonable notice to the Landlord, the
Landlord will lease designated storage space within the Building parkade area.
The parties, both acting reasonably, will negotiate the size of the storage area
and period of the lease of any storage area. The lease payment for the storage
area will be $10.00 per square foot per year, payable monthly as Rent.
D4. RIGHT OF FIRST REFUSAL. Provided that the Tenant in not in default and has
faithfully performed its obligations hereunder, and subject to the prior rights
of IBM Canada Ltd. ("IBM"), pursuant to its lease of premises in the Building,
the Tenant shall have a continuing right of first refusal to lease (the "Right
of First Refusal") any rentable area in the Building throughout the Term of the
Lease. Upon the Landlord receiving any bona fide third party offer to lease any
rentable area of the Building which is subject to the Right of First Refusal,
and which the Landlord is prepared to accept, it will deliver notice to the
Tenant concurrently with any notice given to IBM. The Landlord will advise the
Tenant if IBM exercises its right of first refusal. If the Tenant fails to
exercise its Right of First Refusal by written notice to the Landlord within 7
business days after notice from the Landlord, the Landlord will be free to lease
the area pursuant to the third party offer.
Dominion/Investors/Trillium Lease Kuhn & Company
-34-
D5. RENEWAL OPTIONS. Provided that the Tenant in not in default and has
faithfully performed its obligations pursuant to the Lease, the Tenant shall
have the option (the "First Renewal Option"), exercisable by notice in writing
to be served upon the Landlord not later than the date falling six (6) months
prior to the expiration of the Term of this (Lease, to renew this Lease for a
further term of three (3) years (the "First Renewal Term") from the expiration
of the initial Term hereof upon the same terms and conditions as are contained
herein (except for the provisions of D1 and D2 above, the provisions of Section
2.3, 2.4 and 2.5 of the Lease, this option and Minimum Rent) and at such Minimum
Rent as may be negotiated and agreed upon by and between the Landlord and the
Tenant within ninety (90) days following the date of the exercise of the First
Renewal Option. If the Landlord and Tenant fail to reach agreement as to the
amount of Minimum Rent to be paid during the First Renewal Term within the time
limited aforesaid, then a single arbitrator shall determine the Minimum Rent.
Such single arbitrator shall proceed to hear and determine the matter of such
Minimum Rent for, accordance with provisions of the Commercial Arbitration Act,
British Columbia, as amended from rime to time, on the basis of fair market rent
payable with respect to similarly improved premises of similar size, quality,
use and location. The arbitrator's decision shall be final and binding upon each
of the parties hereto and shall not be capable of appeal or other judicial
review always provided that the monthly Minimum Rent payable in the First
Renewal Term shall not be less than the monthly Minimum Rent paid during the
last month of the current Term. Provided that the Tenant has exercised the First
Renewal Option and is not in default and has faithfully performed its
obligations pursuant to the Lease, the Tenant shall have the option (the "Second
Renewal Option"), exercisable by notice in writing to be served upon the
Landlord not later than the date falling six (6) months prior to the expiration
of the First Renewal Term of this Lease, to renew this Lease for a further term
of .three (3) years (the "Second Renewal Term") from the expiration of the First
Renewal Term upon the same terms and conditions as are contained in the Lease
(except for the provisions of D1 and D2 above, the provisions of Section 2.3,
2.4 and 2.5 of the Lease, the First Renewal Option, this option and Minimum
Rent) and at such Minimum Rent as may be negotiated and agreed upon by and
between the Landlord and the Tenant within ninety (90) days following the date
of the exercise of the Second Renewal Option. If the Landlord and Tenant fail to
reach agreement as to the amount of Minimum Rent to be paid during the Second
Renewal Term within the time limited aforesaid, then a single arbitrator shall
determine the Minimum Rent. Such single arbitrator shall proceed to hear and
determine the matter of such Minimum Rent in accordance with provisions of the
Commercial Arbitration Act, British Columbia, as amended from time to time, on
the basis of fair market rent payable with respect to similarly improved
premises of similar size, quality, use and location. The arbitrator's decision
shall be final and binding upon each of the parties hereto and shall not be
capable of appeal or other judicial review always provided that the monthly
Minimum Rent payable in the Second Renewal Term shall not be less than the
monthly Minimum Rent paid during the last month of the First Renewal Term.
Dominion/Investors/Trillium Lease Kuhn & Company
-35-
SCHEDULE "E"
GUARANTY
THIS GUARANTY is made as of this 5th day of March, 2001 by Intel
Corporation ("Guarantor"), to and for the benefit of Dominion Construction
Company Inc. (as to an undivided 1/4 interest) and 391102 B.C. Ltd. (as to an
undivided 3/4 interest) and their respective successors and assigns as landlord
("Landlord") under that certain lease ("Lease") dated March 5, 2001, between
the Landlord and Trillium Digital Systems Canada, Ltd., a wholly owned
subsidiary of Guarantor, as tenant ('Tenant"), relating to certain premises
("Premises") located at 4621 Canada Way, Canada Way Business Park, Burnaby, B.C.
WITNESSETH:
In order to induce the Landlord to enter into the Lease to which
this is Schedule "E" and for other good and valuable consideration, the receipt
whereof is hereby acknowledged, the Guarantor by execution of the Lease does
hereby covenant and agree as follows:
1. The Guarantor hereby unconditionally and irrevocably guarantees to
Landlord (a) the punctual payment in full by Tenant of any and all rent,
additional rent, and other sums required or due to be paid by Tenant under the
Lease ("Financial Obligations"); and (b) the punctual payment in full of any and
all losses, damages, or expenses due to Landlord arising out of any default or
failure to perform any obligations under the Lease by Tenant.
2. Landlord may, in its sole and absolute discretion, and without in any
way releasing, altering, impairing, or discharging the obligations and
liabilities of the Guarantor under this Guaranty, from time to time (a) waive
compliance with any default under the provisions of the Lease; (b) modify or
supplement any of the provisions of the Lease; (c) grant any extension or
renewal of the terms of the Lease beyond any period referred to therein; (d)
effect any release, compromise, or settlement in connection therewith; (e)
assign or otherwise transfer any or all of its interest in the Lease; and (f)
accept or discharge any other person as a guarantor of any or all of Tenant's
obligations under the Lease.
3. The obligations of the Guarantor hereunder (a) shall be unconditional,
irrespective of the adequacy of any consideration given for this Guaranty; (b)
shall be primary, immediate, and direct; (c) shall not be conditioned upon the
pursuit by Landlord of any remedy which it may have against Tenant or any other
person with respect to the Lease; and (d) shall not be diminished or relieved in
any way because of any insolvency or bankruptcy proceeding by or against Tenant,
or reorganization or dissolution of Tenant, or any repossession of the Premises
by the Landlord. Nothing herein shall limit the ability of Guarantor to assert
any defense or right of set-off, deduction or counterclaim that Tenant is
entitled to assert in connection with the Financial Obligations.
Dominion/Investors/Trillium Lease Kuhn & Company
-36-
4. The Guarantor waives (a) demand for payment for any sum due from
Tenant, (b) notice of default by Tenant under the Lease, (c) demand for
performance by Tenant, and (d) any right to a jury trial in any action brought
at any time or from time to time on this Guaranty.
5. The laws of the Province of British Columbia shall govern this
Guaranty.
6. This Guaranty shall be binding on any successors or assigns of the
Guarantor, and will not be released by an assignment of the Lease by the Tenant,
whether by operation of law or otherwise.
Dominion/Investors/Trillium Lease Kuhn & Company
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000891020-05-000085 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Sat., Apr. 27, 3:05:02.1pm ET 
