DECIMA RESEARCH INC.
LEASE FROM
160 ELGIN LEASEHOLDS INC.
FOR PREMISES AT
160 ELGIN STREET, SUITES 100, 110,
1800, 1801 AND 1802, OTTAWA, ONTARIO
Gowling Lafleur Henderson LLP
Barristers & Solicitors
Suite 2600, 160 Elgin Street
Ottawa, Ontario
K1P 1C3
(Laurie J. Sanderson / File
No. 02-361015)
AGREEMENT OF
NET LEASE FOR OFFICE PREMISES made as of the 19
th day of January, 2006.
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160 ELGIN
LEASEHOLDS INC. (the “Landlord”), a corporation duly
incorporated under the laws of Canada, and having a place of
business at Suite 500, 3625 Dufferin Street in the City of
Toronto, Province of Ontario,
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DECIMA RESEARCH
INC. (the “Tenant”), a company duly incorporated under
the Laws of Ontario, having a place of business at 160 Elgin,
Suite 1800, in the City of Ottawa, Province of
Ontario.
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In
consideration of the rents and agreements hereinafter contained,
the parties agree to lease the Premises on the following
terms:
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LEASE
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ARTICLE 1: SUMMARY
PROVISIONS
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SECTIONS
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Premises : That certain office space currently identified
as “Suite 1800,” “Suite 1801” and
“Suite 1802” containing 19,209.4 square feet of
Gross Rentable Area (the “18 th Floor Premises”) and that part of the
ground floor of the building designated as
“Suite 100” and “Suite 110”
containing 7,429 square feet of Gross Rentable Area (“Ground
Floor Premises”) in the building known as “160
Elgin,” located in the City of Ottawa, Province of Ontario
(the 18 th
Floor Premises and the Ground Floor
Premises collectively called the “Premises”). The
Premises are shown in that approximate location outlined in heavy
black on Schedule “A” and “A-1.”
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3.1
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Term :
Ten (10) years.
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3.1
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Commencement
Date : March 1,
2006
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Expiry
Date : February 28,
2016
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Minimum
Rent : means an amount
per square foot per annum of the
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Gross Rentable
Area of the Premises, as follows:
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4.1
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(i)
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18
th Floor Premises:
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(a)
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for the period
commencing
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March 1,
2006 until February 28, 2011: $19.50 per sq. ft.:
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AND
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(b)
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for the period
commencing
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March 1,
2011 until February 28, 2016:$20.50 per sq. ft.:
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(ii)
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Ground Floor
Premises
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(a)
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for the period
commencing
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March 1,
2006 until February 28, 2016:$17.00 per sq. ft.:
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Proportionate Share of Operating
Expenses : 2.7% subject
to adjustment once verified in accordance with this
Lease.
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4.1, 6.1
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LEASE
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ARTICLE 1: SUMMARY
PROVISIONS
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SECTIONS
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For purposes of
information and without representation or guarantee, the estimated
annual rate for Operating Expenses for the 2006 operating year is
Nine Dollars and Thirty-Three Cents ($9.33) per square foot of the
Gross Rentable Area of the Premises, subject to adjustment by
Landlord.
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Proportionate Share of Taxes
: 2.7% subject to adjustment once
verified in accordance with this Lease.
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4.1, 5.2
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For purposes of
information and without representation or guarantee, the estimated
annual rate for Taxes for the 2006 operating year is Nine Dollars
and Fourteen Cents ($9.14) peer square foot of the Gross Rentable
Area of the Premises, subject to adjustments by
Landlord.
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Charges for
Utilities : The charge
for utilities is included in the Operating Expenses charged to
Tenant. However in connection with the Ground Floor Premises the
cost of electricity and other utilities may be established by
separate meter readings, as detailed in
Section 6.2.
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4.1, 6.2
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Authorized
Use : Offices only for
Tenant’s current activities at the time of the execution of
this Lease and no other use, and subject to exclusivities granted
or to be granted to third party tenant.
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8.1 Schedule “B” -
Section 2
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Addresses
for Notices :
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17.12
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To
Landlord:
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160 Elgin
Leaseholds Inc.
Suite 500, 3625 Dufferin Street
Toronto, ON M3K 1N4
Attention: Leasing Coordinator
Fax: (416) 398-0040
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with a
copy to:
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H&R
Property Management Ltd.
200 Bouchard Boulevard
Dorval, QC H9S 1A8
Attention: Lease Administration
Fax: (514) 631-4646
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To
Tenant:
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Decima Research
Inc.
160 Elgin Street, Suite 1800
Ottawa, ON K2P 2P7
Attention: Michel Lucas
Fax: (613) 230-4341
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Broker : N/A
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Security
Deposit : N/A
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Indemnifier(s) : N/A
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Special
Conditions :
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Article 18
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4
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LEASE
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ARTICLE 1: SUMMARY
PROVISIONS
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SECTIONS
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Unitholder
Liability
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Ground Floor
Premises Rules and Regulations
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After Normal
Business Hours
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First Right
— Other 18th Floor Premises
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Option to
Extend
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Exterior
Signage
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Parking
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Landlord’s Right to Revoke
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Right to
Terminate
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Fixturing
Period — Ground Floor Premises Only
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Allowance
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The provisions
of this Article 1 summarize certain terms of the Lease which
are more fully described in the balance of the Lease and form an
integral part of the Lease. In the event of a conflict or
inconsistency between the provisions of Article 1 and the
balance of the Lease, the provisions of the balance of the Lease
shall prevail. Capitalized terms shall have the meanings set forth
in Schedule “B” or otherwise defined in the body of the
Lease.
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ARTICLE 2: INTENT AND
INTERPRETATION
This Lease is
intended by the parties to be an absolutely net lease to landlord,
except as otherwise expressly provided herein. Any amount and any
obligation which is not expressly declared herein to be that of
Landlord shall be deemed to be an obligation of Tenant to be
performed and paid for by Tenant.
Landlord and
Tenant shall act reasonably in the performance of their obligations
and the exercise of their rights (including the giving of a Notice,
consent or approval) pursuant to the Lease, unless a right is
stated herein to be exercisable at the sole discretion of a party.
The strict enforcement of time limits provided for in the Lease
shall be considered to be acting reasonably.
This Lease is the
entire agreement between Landlord and Tenant. Tenant further
acknowledges that the execution of this Lease shall constitute a
conclusive presumption that all agreements and representations,
written or verbal, previously entered into or made by the parties
or their agents shall be solely those set forth in the Lease and
may be amended only by an agreement in writing signed by both
Landlord and Tenant. Landlord shall prepare any amendment of the
Lease as aforesaid and Tenant shall pay to Landlord
Landlord’s Costs of such preparation, unless such amendment
is requested by Landlord.
5
ARTICLE 3: LEASE OF
PREMISES
Tenant shall
lease the Premises for the Term.
3.2
Measurement of Premises and Rent Adjustment
Where the GRA as
certified by Landlord or the Expert (in this case, the Expert being
a surveyor or an architect) is different from the GRA set forth in
Section 1.1, such certificate of GRA shall be conclusively
binding on the parties and the Rent shall be adjusted accordingly
as and from the Commencement Date.
The Gross
Rentable Area of the Premises as set out in Section 1.1 has
been calculated by Landlord’s Expert on the basis of the
calculation of rentable area in accordance with the 1980 BOMA
Standards of Measurement. For the purposes of this Lease during the
Term, the Gross Rentable Area of the Building is agreed to be
977,928 square feet. Notwithstanding the foregoing, Landlord shall
have the right to remeasure the Premises during the Extension Term
in accordance with the rentable area measurement under ANSI BOMA
1996 standards of Measurement. If Landlord exercises such right it
shall remeasure the balance of the Building in accordance with the
same measurement standards.
Tenant shall have
the right to use the Common Areas in common with the others
entitled thereto, for:
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(a)
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The
purposes for which they are intended; and
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(b)
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during such hours as they may be
available, as determined by Landlord.
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This right shall
not be transferable except to a permitted subtenant, assignee or
user pursuant to Article 13 of the Lease.
3.4
Condition of Premises
When Tenant takes
actual possession of the Premises, it is conclusively presumed as
of such date that the premises are in good condition in all
respects, except for any latent defects and for such defects which
Tenant shall have disclosed to landlord by Notice within
30 days following its taking of possession of the Premises or,
in the case of a seasonal item (such as
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heating or
air-conditioning), within 30 days following the day on which
such seasonal item first starts operating.
3.5
Relocation of Premises
Throughout the
Term, Tenant shall pay to Landlord the following Rent:
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(a)
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the
Minimum Rent;
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(b)
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the
Proportionate Share of Operating Expenses;
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(c)
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the
Proportionate Share of Taxes;
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(d)
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all
other taxes payable to Landlord in accordance with
Section 5.4; and
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(e)
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the
aggregate of:
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(i)
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the
charges for utilities in accordance with
Section 6.2;
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(ii)
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the
charges for any additional services provided by Landlord at the
request of Tenant; and
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(iii)
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such other costs, charges, amounts
and expenses as are required to be paid by Tenant to Landlord under
the Lease.
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In connection
with the Ground Floor Premises only and in lieu of performing any
landlord base building work, Landlord agrees to reimburse Tenant
for improvements made to the Premises (based upon receipted
invoices) up to a maximum of Six Dollars ($6.00) per square foot of
Gross Rentable Area of the Ground Floor Premises. Further, Tenant
shall have the right to maintain, demolish or add to the existing
mezzanine located inside the Premises without having to pay Minimum
Rent for such mezzanine space. However, Tenant is responsible for
all Operating Expenses and Taxes assessed to such mezzanine
area.
7
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(a)
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Tenant shall pay the Rent to
Landlord immediately when due, without Notice or demand, and
without deduction, set-off, compensation, or abatement, except as
expressly provided in this Lease, in lawful money of Canada, at the
address mentioned in Section 1.10 or such other address or
Person as may be designated by Landlord. For greater certainty,
Tenant expressly waives and renounces any and all future claims or
rights or set-off or compensation against any Rent;
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(b)
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Tenant shall pay items of Rent of a
recurring nature (including without limitation the Minimum Rent,
the Proportionate Share of Operating Expenses, the Proportionate
Share of Taxes and the charges for utilities) in advance on the
first day of each month of the Term, subject to the provisions of
Sections 4.2(g), 5.2, 6.1 and 6.2; Tenant shall pay all other
items of Rent 5 business days of the delivery of an invoice
therefor;
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(c)
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Tenant shall pay interest at the
Prime Rate, applicable at the date of Tenant’s default, plus
3% per annum on all arrears of Rent for the period of time any Rent
remains unpaid;
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(d)
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In
the event that Tenant fails to pay any item of Rent on its due date
for any 2 months (which do not have to be consecutive) during
any Rental Year, Tenant agrees to pay to Landlord for such delay,
in addition to the interest owed pursuant to Section 4.2(c), a
sum equivalent to 15% of any such amounts then in default, which
amount the parties agree is a genuine pre-estimate of the damages
that may be reasonably anticipated to be suffered by the Landlord
as a result of such default. Such amount shall be payable by Tenant
whether or not such default is remedied prior to the claim for such
liquidated damages;
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(e)
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Tenant shall upon Landlord’s
request:
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(i)
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deliver to Landlord a series of
postdated checks covering the Minimum Rent and Additional Rent for
the first twelve (12) months of the Lease. Thereafter, one
(1) month prior to each anniversary of the Lease, the Tenant
shall deliver twelve (12) other postdated checks covering the
Minimum and the Additional Rent for the following twelve
(12) months; or
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(ii)
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pay
the Minimum Rent and the Additional Rent by means of pre-authorized
monthly payments in accordance with the provisions of Schedule
“E” annexed hereto.
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(f)
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Landlord shall determine Operating
Expenses and Taxes without duplication in accordance with generally
accepted accounting principles consistently applied for the real
estate industry;
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(g)
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Landlord may estimate items of
Additional Rent of a recurring and variable nature and advise
Tenant in writing thereof. Tenant shall pay to landlord the amounts
so
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estimated in equal consecutive
monthly installments in advance over each Rental Year or a portion
thereof; in the case of Taxes, however, Tenant shall pay to
Landlord the full amount of such estimate in equal consecutive
monthly installments commencing with the first month following such
estimate and terminating on the tax due date or Specified
Date;
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(h)
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Within 180 days after the
expiry of each Rental Year, Landlord shall delivery to Tenant a
statement issued by Landlord of the items of Additional Rent of a
recurring and variable nature and of the amounts of the
Tenant’s proportionate share thereof for such rental year. If
Tenant has paid more than such statement specifies, Landlord shall,
at its sole discretion, apply the excess, without interest, to next
accruing months installment of Rent or to other amounts owing by
Tenant or refund the excess (unless Tenant is then in monetary
default under any term or condition of this Lease) without interest
or if Tenant has paid less than such statement specifies, Tenant
shall pay the deficiency, any such adjustment amounts to be applied
or paid within 5 business days after delivery of Landlord’s
statement;
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(i)
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The
obligations of the parties to pay any amount of Rent or to adjust
pursuant to the preceding sub-paragraph (h) for the final
Rental year shall survive the expiration of the Term;
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(j)
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If
the Commencement Date is not the first day of a calendar month or
if the Expiration date is not the last day of a calendar month,
Rent for the relevant part of the month shall be prorated on a
per diem basis;
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(k)
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Notwithstanding any contrary
provisions of the Lease, if, at any time during a Rental Year, the
Building is not one hundred percent (100%) occupied and
operational, the Landlord shall have the right to increase those
items of Operating Expenses which vary with the extent of the
occupancy or use of the rentable premises in the Building
(including without limitation, cleaning costs, supplies, garbage
removal, etc.) to such an amount, as in the reasonable estimation
of Landlord, would have been incurred if the Building were one
hundred percent (100%) occupied and operational for the entire
Rental Year and the amount of such increase shall be included in
the Operating Expenses. In no event however, shall Tenant have to
pay an amount higher than it would have paid if the Building had
been fully occupied and operational.
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(l)
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Landlord shall in its determination
of Operating Expenses and Taxes make such allocations and
attributions in respect to various components of the Building as
may be necessary and reasonable.
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9
5.1
Landlord’s Responsibility to Pay Taxes
Subject to
Section 5.2, Landlord shall pay all Taxes to the competent tax
authorities.
5.2
Tenant’s Proportionate Share of Taxes
Tenant shall pay
to Landlord, as Additional Rent, the Proportionate Share of all
Taxes, such payment to be made no later than on the tax due date or
on the Specified Date, subject to Sections 4.2 (b),
(g) and (h). All Taxes shall be exempt from Landlord’s
administration fee.
Landlord shall
provide Tenant, upon the latter’s specific written request,
with copies of all pertinent valuation and assessment notices and
of all pertinent tax statements and notices which Landlord has
received in respect of the Building or the Premises.
5.3
Contestation of Taxes
Tenant shall pay
to Landlord, as part of Operating Expenses, its proportionate share
of all fees and expenses incurred by Landlord with respect to the
contestation of the Taxes or of the assessment of the Building,
including without limitation legal, appraisal, administration and
overhead expenses. The Taxes which shall be contested by Landlord
shall nevertheless be paid by Tenant in accordance with
Section 5.2 of this Lease, provided however that if Tenant has
paid its proportionate share of such contested Taxes and that
Landlord receives as a result of such contestation a reimbursement
of those Taxes, Landlord shall reimburse to Tenant an appropriate
portion of such reimbursement, after having deducted those expenses
which shall not have been already charged to Tenant.
Landlord shall
have no obligation to contest, object to or to litigate the levying
or imposition of any Taxes and may settle, compromise, consent to,
waive or otherwise determine in its discretion any Taxes without
notice to, consent or approval of Tenant.
Tenant shall pay
to Landlord any sales Taxes at the same time as the amounts to
which such Sales Taxes apply and which are payable to Landlord
under the Lease. Although Sales Taxes are not considered to be
Rent, Landlord shall have the same recourses for recovery of such
amounts as it has for non-payment of Rent under the Lease or at
law.
Tenant shall
indemnify and save Landlord harmless from all losses, costs,
charges, penalties, and expenses arising from Tenant’s
non-payment of Taxes, business taxes (if any) or Sales Taxes, as
well as of any taxes that are imposed in lieu of same, whether
against Landlord or Tenant.
ARTICLE 6: OPERATING EXPENSES AND
UTILITIES
10
6.1
Tenant’s Proportionate Share of Operating
Expenses
Tenant shall pay
to Landlord, as Additional Rent, the Proportionate Share of
Operating Expenses.
Tenant shall pay
to landlord, as Additional Rent, the costs of all electricity and
other utilities supplied to or used or consumed in the Premises as
set forth in Schedule “C.” Landlord may require Tenant
to install a check meter, at Tenant’s expense, for the
purpose of determining the costs of such utilities. The cost of
electricity to Tenant for the Premises shall not exceed the amount
which the authority providing the same would charge to Tenant if
Tenant were directly metered and billed by the competent authority.
SEE RIDER PAGE 7A
For the purposes
hereof, the charges for utilities for the 18
th Floor Premises shall be included in
Tenant’s Proportionate Share of Operating Expenses. In
connection with utilities consumed within the Ground Floor
Premises, said costs shall be established by Landlord by separate
meter readings, designated to monitor the Ground Floor Premises,
where available Landlord shall provide the Ground Floor Premises
with such meters, in good working order. For clarity and
notwithstanding anything to the contrary herein contained, Tenant
shall be responsible to pay its Proportionate Share of Common Area
utilities.
ARTICLE 7: SERVICES AND OPERATION
OF BUILDING
Landlord shall
provide the following services to the Premises, subject to the
further provisions set forth in Schedule
“C”;
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(a)
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heating, ventilation and
air-conditioning as required for the comfortable use and occupancy
of the Premises during Normal Business Hours; such services to the
Premises outside of Normal Business Hours shall be available in two
(2) hours increments, at Tenant’s sole expense and in
accordance with Landlord’s prevailing rates; notwithstanding
the foregoing, the Tenant shall pay to the Landlord, as Additional
Rent, the costs of all chilled or condenser water supplied to the
Premises, at the rate established from time to time by the
Landlord, at its discretion;
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(b)
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cleaning services; and
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(c)
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utilities for lighting and
equipment.
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11
Landlord shall
provide the following services to the Building (not including the
Premises):
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(a)
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elevators as set forth in Schedule
“C”;
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(b)
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washroom facilities;
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(c)
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heating, ventilation,
air-conditioning, lighting and cleaning in the appropriate interior
portions of the Common Areas;
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(d)
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snow removal and landscape
maintenance for the appropriate exterior portions of the Common
Areas;
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(e)
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exterior window washing;
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(f)
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replacement of tubes and ballasts;
and
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(g)
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garbage removal.
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Landlord shall
perform any acts which it determines to be advisable for the more
efficient and proper operation of the Building. More particularly
and without limiting the generality of the foregoing, Landlord
shall be entitled to do the following:
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(a)
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obstruct or close off all or any
part of the Building for the purpose of maintenance, repair,
alteration or construction;
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(b)
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regulate the delivery or shipping of
supplies and fixtures to the leased premises;
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(c)
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construct other buildings,
structures or improvements in the Building and make alterations and
additions to the Building (excluding the Premises) and its Common
Areas; and
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(d)
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relocate or modify certain Common
Areas.
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7.4
Interruption of Services
Landlord may elect
at its sole discretion, without any obligation or liability to
Tenant, and without such action constituting an eviction of Tenant,
to discontinue or modify any services required of it as a result of
Landlord’s exercise of the rights conferred under
Section 7.3
ARTICLE 8: USE OF
PREMISES
12
The Premises shall
be used and occupied by Tenant for the purpose of carrying on the
Authorized Use and for no other purpose. Tenant shall not permit
any part of the Premises to be occupied by any Person other than
Tenant or a permitted assignee or subtenant and their respective
employees.
Notwithstanding
any legal warranty, Landlord does not make any representation or
warranty whatsoever to Tenant in respect to the use of the Premises
which is permitted under applicable laws during the Term or is
permitted by any applicable zoning by-laws during the Term. Nothing
herein shall be interpreted so as to imply that the Lease is
conditional upon the Tenant obtaining any permit for the carrying
on of its business from an municipal or other authority. Tenant
shall be solely responsible to obtain, at it own cost, all permits,
consents and authorizations required for its occupation of the
Premises and the operation of its business therein.
Subject to
subsection (b) below, Tenant shall occupy the Premises
throughout the Term and shall continuously and actively conduct in
the whole of the Premises the business permitted by the Authorized
Use. Tenant acknowledges that its continued occupancy of the
Premises and the continuous and active conduct of its business in
the Premises are of the utmost importance to landlord
in:
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(i)
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avoiding the appearance and
impression generally created by vacant space;
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(ii)
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facilitating the leasing of vacant
space in the Building and the lease renewals of existing
tenants;
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(iii)
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maximizing the rents payable to the
Landlord both by existing tenants and new tenants of the Building;
and
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(iv)
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maintaining the character, quality
and image of the Building.
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Notwithstanding
the foregoing, Landlord agrees to provide not less than twenty-four
(24) hours prior notice of any interruption in lighting and
electrical power and to use commercially reasonable efforts to
restore such lighting and electrical power as quickly as possible
in the circumstances.
13
(b) Notwithstanding the foregoing, provided
Tenant is not in default hereunder, Tenant shall have the right to
cease business operations on the Premises (“Cease Conducting
Business”) on and subject to the following terms:
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(i)
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Tenant shall give Landlord not less
than one hundred eighty (180) days’ prior written notice
of its intention to Cease Conducting Business
(“Notice”);
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(ii)
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Landlord shall have the right to
enter that portion of the Premises so vacated (“Vacated
Premises”) to show same to prospective lessees and such
access shall not constitute a breach of Tenant’s quiet
enjoyment nor in any way limit or affect Tenant’s obligations
hereunder which shall continue throughout the Term;
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(iii)
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such right to Cease Conducting
Business shall be subject to there being no risk of the resulting
cancellation of or material adverse change in any insurance
coverage related to the Vacated Premises;
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(iv)
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Tenant shall be responsible to pay
any additional or increased insurance costs resulting from
tenant’s election to Cease Conducting Business;
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(v)
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Tenant shall take all such steps as
may be reasonable necessary or required by Landlord to maintain
security in respect of the Vacated Premises;
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(vi)
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Tenant shall continue to perform all
other obligations under this Lease notwithstanding that Tenant is
no longer occupying the Vacated Premises;
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(vii)
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Landlord shall have the right to
access the Vacated Premises at any time, without having to provide
notice, notwithstanding any provision in this Lease requiring
notice to be provided prior to access by Landlord, to inspect same
and same shall not constitute a breach of quiet possession or
entitle Tenant to terminate this Lease or any damages.
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(viii)
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at
Landlord’s option, Tenant shall have an employee or other
person approved by Landlord to attend at the Vacated Premises
regularly to inspect same and effect such maintenance, repairs or
replacements as may be required under this Lease.
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At any time
after receipt of such Notice, Landlord shall have the right to
terminate this Lease as it related to the Vacated Premises only,
provided that it first gives Tenant at least thirty (30)
days’ prior written notice of its intention to do so; if
Tenant recommences occupancy of or conduct of business in the
Vacated Premises within such period of thirty (30) days, or
commits in writing within such period to do so within a further
period of not greater than sixty (60) days, and provided that
and so long as Tenant does occupy and conduct business in the
Vacated Premises, Landlord shall not exercise such right of
termination. If Landlord thereafter exercises such right of
termination Tenant shall vacate the Vacated Premises on the date
required by
14
Landlord and
shall deliver up vacant possession of the Vacated Premises in the
state and condition Tenant is required to maintain the Vacated
Premises pursuant hereto.
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(c)
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Tenant acknowledges that
notwithstanding the rights granted to Landlord pursuant to this
section, such rights shall be exercised in landlord’s sole
discretion and there shall be no implied obligation on landlord to
market or re-let the Vacated Premises.
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ARTICLE 9: INSURANCE AND
NON-LIABILITY
Tenant shall
maintain during the Term and any renewal thereof or later
occupation of the Premises insurance with respect to its interest
in the Premises, the fixtures and improvements made by or on behalf
of Tenant in the Premises, and all operations of Tenant in and from
the Premises.
Tenant’s
insurance shall be in amounts equal to those maintained by prudent
tenants of similar premises and shall, without limiting the
foregoing, cover the following risks:
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(a)
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“all risks” (including
flood and earthquake) coverage for property of every kind owned by
Tenant or for which Tenant is legally liable or installed by or on
behalf of Tenant and which is located within the Building,
including, without limitation, all of Tenant’s furniture and
movable equipment and all leasehold improvements and other
improvements, in an amount not less than the full replacement cost
thereof;
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(b)
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“all risks”
Tenant’s legal liability in an amount not less than the full
replacement cost of the Premises, including loss of their
use;
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(c)
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comprehensive, general liability
insurance including, but not limited to property damage, public
liability, personal injury liability, contractual liability,
non-owned automobile liability and contractor’s protective
insurance coverage, all on or an occurrence basis with respect to
the use, occupancy, activities or things on the Premises and with
respect to the use and occupancy of any other part of the Building
by Tenant or any of its employees, agents, contractors or persons
for whom tenant is in law responsible with coverage of not less
than Five Million Dollars ($5,000,000.00) for each occurrence
involving bodily injury, death or property damage (or for such
higher limits as Landlord may reasonable require from time to
time);
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(d)
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business interruption insurance in
such amounts as will reimburse Tenant for direct and indirect loss
of earnings attributable to the perils insured against in
subparagraph 9.1(a) and other perils commonly insured against by
prudent tenants; and
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15
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(e)
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such other coverage as Landlord, the
Trustee or the Mortgagee may require having regard to the risks
which are customarily insured against by prudent tenants of like
premises.
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Such insurance shall
include:
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(aa)
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Landlord, the Trustee and any
Mortgagee designated by Notice from Landlord together with those
for whom they are in law responsible as additional insureds as
their respective interest may appear;
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(bb)
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a
severability of interests and cross-liability clauses protecting
Landlord in respect of claims by Tenant as if Landlord was
separately insured;
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(cc)
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a
provision prohibiting the insurer from or canceling the coverage
without first giving Landlord at least 30 days prior Notice
thereof; and
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(dd)
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a
waiver of any subrogation rights which Tenant’s insurers may
have against Landlord and against those for whom Landlord is in law
responsible.
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Tenant shall
provide Landlord with certificates of such insurance and any
renewals thereof and, at Landlord’s request, with a certified
copy of its insurance policy(ies).
9.2
Increased Risk and Remedies
Tenant shall not
do or commit any act upon the Premises or bring into or keep upon
the Premises any Article which will affect the fire risk or
increase the rate of fire insurance or other insurance on the
Building. Without limiting the foregoing, in no event shall any
inflammable materials, except for kinds and quantities required for
ordinary office occupancy and permitted by the insurance policies
covering the Building, or any explosives whatsoever, be taken into
the Premises or retained therein.
Tenant shall
comply with the rules and requirements of Landlord’s
insurers’ inspection service and with the requirements of all
insurance companies having policies of any kind whatsoever in
effect covering the Building, including policies insuring against
contractual and extra-contractual liability.
Should the rate of
any type of insurance on the Building be increased by reason of any
violation of the Lease by Tenant, Landlord, in addition to all
other remedies, may pay the amount of such increase, and the amount
so paid shall become due and payable immediately by Tenant and
collectible as Additional Rent.
Should any
insurance policy on the Building be cancelled or threatened to be
cancelled by the insurer by reason of the use and occupation of the
Premises or any part thereof by Tenant or by any permitted
assignee, subtenant, concessionaire or licensee of Tenant, or by
anyone permitted by Tenant to be upon the Premises, Landlord may at
its option terminate the Lease by
16
leaving at the
Premises a Notice of its intention to do so and thereupon Rent and
other payments for which Tenant is liable hereunder shall be
apportioned and paid in full to the effective date of termination
under such Notice and Tenant shall forthwith deliver vacant
possession of the Premises to Landlord. Landlord may also, at its
option and at the expense of Tenant, enter upon the Premises and
rectify the situation causing such cancellation or threatened
cancellation.
Notwithstanding
any other provisions in this Lease or the Laws, Landlord shall not
be liable for damage to or loss, theft, or destruction of property
at any time in or on the Premises or in or about the building,
regardless of the cause therefor (except where such cause is
Landlord’s gross fault).
Save as set out in
Article 11 and without limiting the generality of the
foregoing, there shall be no abatement from or reduction of Rent
nor shall Tenant be entitled to damages, costs, losses or
disbursements from Landlord regardless of the cause therefore
(except where such cause is Landlord’s gross fault) on
account of fire or other casualty. Neither shall there be any claim
of any nature whatsoever by Tenant against Landlord, nor any
abatement nor reduction of Rent, nor recovery by Tenant from
landlord on account of partial or total failure of, damage caused
by, lessening of supply of, or stoppage of, heat, air-conditioning,
electric light, power, water, plumbing, sewerage, elevators,
escalators or any other service, nor on account of any damage or
annoyance occasioned by water, snow, or ice being upon or coming
through the roof, skylight, trapdoors, windows, or otherwise, or by
any defect or break in any pipes, tanks, fixtures, or otherwise
whereby steam, water, snow, smoke or gas, leak, issue or flow into
the Premises, nor on account of any damage or annoyance occasioned
by the condition or arrangement of any loading docks or of any
electric or other wiring, nor on account of any damage or annoyance
arising from any acts, omissions, or negligence of co-tenants or
other occupants of the Building, or of owners or occupants of
adjacent or contiguous property, nor on account, directly or
indirectly, of the making of improvements, or structural changes to
the Building, or anything or service therein or thereon or
contiguous thereto.
Notwithstanding
the foregoing, liability of Landlord shall under no circumstances
extend to any property other than normal office furniture which
term, without limiting its normal meaning, shall not include
securities, specie, papers, typewriters, electrical computers, or
machines or similar items.
Furthermore,
Landlord shall not be liable for any damages suffered by Tenant
should any delay in the completion of the Premises in any way delay
or inconvenience the occupation thereof or the enjoyment of the
Building or accessories or services.
9.4 General
Indemnifications of Landlord
Tenant shall
indemnify Landlord and save it harmless from and against all claims
and costs arising from this Lease, or any occurrence in, upon or at
the Premises, or occasioned wholly or in part by any act or
omission of Tenant or by anyone permitted to be on
17
the Premises or
in the Common Areas by Tenant, or by a failure by Tenant or by
anyone permitted to be on the Premises by Tenant to comply with
Laws, unless any such claim, cost or occurrence results from the
gross fault of Landlord or of those for whom it is in law
responsible. If Landlord, without gross fault on its part, is made
a party to any litigation commenced by or against Tenant, Tenant
shall indemnify and hold Landlord harmless and shall pay all costs,
expenses and legal fees (judicial and extra-judicial) incurred or
paid by Landlord in connection with such litigation.
ARTICLE 10: TENANT
RESPONSIBILITIES
10.1
Maintenance and Repairs
Tenant shall, at
all times, at its expense, maintain and repair, subject to
Section 10.2, the whole of the Premises including without
limitation, all improvements, interior partitions, doors,
electrical, lighting, wiring, plumbing fixtures and equipment and
the heating, ventilating and air-conditioning systems and equipment
within or exclusively serving the Premises in good order and repair
as would a prudent owner. Tenant will make all needed repairs and
replacements with due diligence and dispatch.
Tenant shall
promptly notify the Landlord in writing of any accident to or
defect in the water pipes, steam pipes, heating or air conditioning
equipment, electric lights, elevators, wires or other services or
equipment to any portion of the Premises.
For greater
clarity, Tenant shall be solely responsible for and shall pay for
all repairs or replacements of every nature and kind to the
Premises other than those which in the reasonable opinion of
Landlord would constitute major structural repairs to the Building
(and which are charged generally to tenants of the Building as part
of Operating Expenses).
10.2
Landlord’s Approval of Tenant’s
Improvements
Tenant shall not
make any improvements to the Premises without obtaining
Landlord’s prior written consent. Landlord shall not be
obliged to consider any request for such approval unless and until
Tenant has submitted to Landlord details of the proposed
improvements, including drawings and specifications prepared by
qualified architects or engineers and conforming to good
architectural and engineering practice and unless Tenant shall also
deliver with respect to the improvements:
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(a)
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such indemnification against liens,
costs, damages and expenses and waivers by persons who participate
in the Improvements (including the renunciation by such Person of
any rights to register liens against the Building or any part
thereof) as Landlord requires, failing which Tenant shall furnish
adequate security in an amount and form required by Landlord to
indemnify against liens, costs, damages, and expenses resulting
from such improvements; and
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(b)
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evidence satisfactory to Landlord
that Tenant has obtained all necessary consents, permits, licenses
and inspections from all governmental and regulatory
authorities.
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18
All improvements
made by Tenant to the Premises shall be at Tenant’s sole
expense and, if approved by Landlord, shall be
performed:
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(i)
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by
such contractor(s), or sub-contractor(s) as Tenant may select and
Landlord may approve, provided however that Landlord shall not be
liable for any damage or other loss or efficiency arising from or
through such work. Each such contractor and sub-contractor shall be
Tenant’s contractor and sub-contractor and shall not be
deemed to be Landlord’s mandatary. Tenant hereby undertakes
that there shall be no conflict caused with any union or other
contract to which Landlord, its contractor(s), or any
sub-contractor(s) may be a party, and in the event of any such
conflict Tenant shall forthwith remove from the Building
Tenant’s conflicting contractor(s) or
subcontractor(s).
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(ii)
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in
a good and workmanlike manner and in compliance with the highest
standards including those set by Landlord;
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(iii)
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in
accordance with the drawings and specifications approved by
Landlord; and
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(iv)
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subject to the reasonable
regulations, controls and inspection of Landlord.
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If any payment in
respect of the Tenant’s Improvements shall be made by
Landlord, the same shall be immediately repayable to Landlord by
Tenant and collectible as Additional Rent.
Immediately upon
;being invoiced by Landlord, Tenant shall pay to Landlord, as
Additional Rent, an administrative and supervisory fee equal to 15%
of the costs incurred by Landlord in connection with such
improvements made to the Premises.
Moreover, if any
such improvements may in the Expert’s opinion affect the
structure of the Premises or any other part of the Building
(namely, the electrical, mechanical, or other base building
systems), such work or the appropriate part thereof, shall be
performed only by landlord, in which case Tenant shall, upon
completion thereof, pay to Landlord, upon demand, Landlord’s
costs thereof plus 11% of the cost of such work as a management
fee. No such improvements shall be permitted which may weaken or
endanger the structure or adversely affect the condition or
operation of the Premises or the Building or diminish the value
thereof.
Any Improvement
made by Tenant without the prior written consent of Landlord or
which is not in accordance with the drawings and specifications
approved by landlord shall, if required by Landlord, promptly be
removed by Tenant at its expense and the Premises restored to their
previous condition.
10.3
Ownership of Improvements
19
Any fixtures or
Improvements installed by Tenant, or by Landlord on Tenant’s
behalf, shall immediately upon installation become the property of
Landlord without compensation to Tenant. Except in the
circumstances specifically described in Section 10.6, such
fixtures or improvements shall not be removed from the Premises
either during or at the expiration or earlier termination of the
Term. Landlord is under no obligation to repair, maintain or insure
the Improvements.
10.4 Tenant
Discharge All Liens
If any
mechanics’ construction or similar lien is made, filed or
registered against title to the Building or Lands or against the
Tenant’s leasehold interest as a result of any work,
materials or services supplied or performed by or on behalf of the
Tenant or otherwise in respect of the Premises, the Tenant will
discharge it forthwith at the Tenant’s expense. If the Tenant
fails to discharge the lien, then in addition to any other right or
remedy of the Landlord, the Landlord may elect to discharge the
lien by paying the amount claimed to be due and any additional
amounts as may be required at law or otherwise, into Court or
directly to the lien claimant and the amount paid by the Landlord
and all costs and expenses including all solicitor’s fees (n
the basis for a solicitor and his own client) incurred as a result
of the lien including, without limitation, procuring and
registering its discharge will e immediately paid by the Tenant to
the Landlord.
10.5 Tenant
Not to Overload Utilities and Services
Tenant shall not
install any equipment which will exceed or overload the capacity of
any utilities and services in the Building.
10.6
Termination of Lease
At the expiration
or earlier termination of the Lease for whatever reason or upon
Tenant vacating the Premises with the permission of Landlord prior
to the expiration hereof, Tenant shall, if so required by Landlord,
remove all or specified improvements including, without limitation,
all improvements installed by landlord or Tenant in the Premises
and regardless of whether Landlord or Tenant is or was responsible
for the cost thereof, Tenant shall thereupon become obligated to
restore the Premises to their original condition, save for such
improvements as Landlord permits to remain. Should Tenant not be
required to remove any of such improvements, they shall, upon the
expiration or earlier termination of this Lease for any other
reason, remain in the Premises as the property of Landlord without
any compensation being paid therefore to Tenant.
Moreover, all
obligations of Tenant under the Lease which have arisen on or
before its expiration or earlier termination, all obligations to
pay amounts due hereunder and/or pursuant to adjustment provided
for by the Lease shall survive the expiration or earlier
termination of the Lease.
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(c)
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(i)
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Tenant shall pay Landlord
forthwith on demand all charges as determined and allocated by
Landlord, acting reasonably, in respect of all special services
provided to or for the benefit of Tenant beyond building standard
services, the costs for which are included in Operating Expenses,
such special services including, without limitation, charges for
security, hoisting, supervision, waste removal and receiving,
storing and handling materials and articles.
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(ii)
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Landlord shall have the right, to be
exercised by written notice to Tenant, to require that Landlord be
the exclusive supplier, at Tenant’s expense, of such
materials or services for Tenant in respect of the Premises and the
Project not otherwise expressly provided for in this Lease as
Landlord may designate from time to time (“Services”)
including, without limitation: replacement of tubes, bulbs and
ballasts; waste removal; any services requiring drilling or
otherwise penetrating floors, walls and ceilings; and locksmithing
and security arrangements. If Landlord does not require that it be
the supplier of Services, only persons approved by Landlord, acting
reasonably, may supply Services to Tenant but subject to reasonable
rules and regulations established by Landlord.
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(iii)
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Landlord shall not be liable for any
damages caused in performance of any maintenance or cleaning
provided hereunder, no matter how caused, whether by negligence or
otherwise. Landlord shall not be liable for any indirect or
consequential damage arising from any default in or failure to
perform any such maintenance or cleaning.
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(d)
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Unless otherwise expressly agreed
between Landlord and Tenant to the contrary in respect of any
specific matter from time to time, all work performed and materials
supplied by Landlord for Tenant or otherwise respecting the
Premises pursuant to the provisions hereof or otherwise shall be
paid for by Tenant to landlord forthwith upon demand at
Landlord’s cost for the same plus fifteen percent (15%) for
inspection, supervision and overhead.
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Notwithstanding
the foregoing, Landlord agrees that upon the expiration or earlier
termination of the Term, Landlord shall not require Tenant to
remove any improvements made prior to the date of this Lease or any
other improvements made by Decima Research Inc. or an Affiliate (as
defined in Section 13.5) to the Premises for its business
operations on the Premises, except for all telecommunication wiring
installed by or on Tenant’s behalf for its business
operations in the Premises. Tenant shall ensure that the Premises
are left in the condition in which the Premises are required to be
maintained by Tenant in accordance with this Lease. For clarity,
the foregoing right to leave improvements made to the Premises at
the expiration or earlier termination of the Term shall not apply
to improvements constructed by or on behalf of any assignee,
subtenant or any other transferee other than an
Affiliate.
21
10.7
Exterior Appearance of Premises
Tenant shall keep
the exterior appearance of the Premises tidy and business-like and
shall not erect any sign or other like object within the Premises
which is visible from the exterior of the Premises, except as
expressly permitted by this Lease.
10.8
Obligation Towards Other Tenants and Users of the
Building
Tenant shall act
in such a way as not to disturb the peaceful enjoyment of the other
tenants or users of the Building.
Tenant shall
install and maintain in the Premises, at its sole cost, such fire
protection or equipment, including without limitation, emergency
lighting as is deemed necessary or desirable by Landlord or by any
governmental and/or insurance body. If so required by Landlord or
any aforesaid body, Tenant shall appoint a warden to coordinate
with the fire protection authorities and Landlord’s
personnel.
ARTICLE 11: DAMAGE, DESTRUCTION,
EXPROPRIATION
11.1 Damage
or Destruction of Premises
In the event that
the Premises shall be destroyed or damaged by fire or other
casualty insurable under fire and all risks insurance coverage,
then:
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(a)
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if
in the opinion of Landlord the damage or destruction is such that
the Premises are rendered wholly unfit for occupancy or it is
impossible or unsafe to use and occupy them, and if in either event
the damage, in the further opinion of Landlord (which shall be
given by Notice to Tenant within a reasonable delay of the
happening of such damage or destruction) cannot be repaired with
reasonable diligence within 180 days from the happening of such
damage or destruction, either Landlord or Tenant may within
5 days next succeeding the giving of Landlord’s opinion
as aforesaid, terminate this Lease by giving to the other Notice of
such termination, in which event the Term shall cease and be at an
end as the date of such damage or destruction and the Rent shall be
apportioned and paid in full to the date of such damage or
destruction. In the event that neither Landlord nor Tenant so
terminates this Lease, Rent shall abate from the date of the
happening of the damage until the damage shall be mad good to the
extent of enabling Tenant to use and occupy the Premises;
or
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(b)
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if
the damage be such that the Premises are wholly unfit for
occupancy, or if it is impossible or unsafe to use or occupy them
but if in either event the damage, in the opinion of Landlord
(which shall be given by Notice to Tenant within 30 days from
the happening of such damage) can be repaired with reasonable
diligence
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within 180 days of the
happening of such damage, Rent shall abate from the date of the
happening of such damage until the damage shall be made good to the
extent of enabling Tenant to use and occupy the Premises;
or
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(c)
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if
in the opinion of Landlord, the damage can be made good as
aforesaid within 180 days of the happening of such damage or
destruction, and the damage is such that the Premises are capable
of being partially used for the purposes for which leased, until
such damage has been repaired, Rent shall abate in the proportion
that the part of the Premises rendered unfit for occupancy bears to
the whole of the Premises.
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11.2
Destruction of Building
In the event that
Building is partially destroyed or damaged so as to affect 20% or
more of the rentable area of the Building, or in the opinion of
landlord the Building is rendered unsafe, and whether or not the
Premises are affected, and in the opinion of Landlord (which shall
be given by Notice to Tenant within 30 days of the happening
of such damage or destruction), cannot be repaired with reasonable
diligence within 180 days from the happening of such damage or
destruction, Landlord may within 5 days next succeeding the
giving of Landlord’s opinion as aforesaid, terminate this
Lease by giving to Tenant Notice of such termination, in which
event the Term shall cease and be at an end as of the date of such
damage or destruction and the Rent and all other payments for which
Tenant is liable under the terms of this Lease shall be apportioned
and paid in full to the date of such damage or
destruction.
In the event of
the termination of the Lease as hereinabove provided, all insurance
proceeds, excluding those relating to Tenant’s property to
the extent Tenant is not indebted to the Landlord under the
provisions of the Lease, shall be and remain the absolute property
of Landlord.
Nothing herein
contained shall oblige Landlord to repair or reconstruct any
property of Tenant or improvements.
11.5
Negligence or Tenant
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(a)
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Subject to Section 11.5(b), if
any damage or destruction by fire or other cause to the Building or
Premises, whether partial or not, is due to the fault or negligence
of Tenant, its officers, agents, employees, servants, or visitors
without prejudice to any other rights and remedies of
Landlord;
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(i)
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Subject to Section 11.5(b),
Tenant shall be liable for all costs and damages;
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(ii)
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Subject to Section 11.5(b), the
damages may be repaired by Landlord at Tenant’s
expense;
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(iii)
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Tenant shall forfeit its right to
terminate the Lease as provided in Section 11.1(a);
and
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(iv)
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Tenant shall forfeit any abatement
of Rent provided in this Article 11 and Rent shall not
abate.
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(b)
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Notwithstanding the foregoing, to
the extent only that Landlord is insured and receives insurance
proceeds, Landlord releases Tenant, its servants, agents, officers,
employees, or visitors from damage or destruction caused by the
negligence of Tenant, its servants, agents, officers, employees or
those for whom Tenant is in law responsible.
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Landlord and
Tenant shall cooperate in respect of any expropriation of the
Premises or any part thereof so that, subject to the following
rights of Landlord (which include, without limitation, the rights
of Landlord to receive compensation for Tenant’s leasehold
improvements), Tenant may receive the maximum award to which it is
entitled in law for relocation costs, business interruption and
such other costs (including any required increased rent in new
premises) that it may be entitled to receive from the expropriating
authority and so that Landlord may receive the maximum award for
all other compensation arising from or relating to such
expropriation (including all compensation for the value of
Tenant’s improvements and Tenant’s rights (if any) to
such compensation are hereby assigned to Landlord). If the whole or
any part of the Premises is expropriated, the respective rights and
obligations of Landlord and Tenant shall continue until the day on
which the expropriating authority takes possession thereof.
Landlord shall have the option, to be exercised by written notice
to Tenant, to terminate this Lease effective on the day the
expropriating authority takes possession of the whole or the
portion of the expropriated Premises. Rent shall be adjusted as of
the date of such termination and Tenant shall, on the date of such
taking of possession, vacate the Premises and surrender the same to
landlord, with Landlord having the right to re-enter and re-possess
the Premises discharged of the Lease and to remove all persons
therefrom.
ARTICLE 12: LANDLORD’S
RIGHT OF ENTRY
Landlord and its
agents and contractors may enter the Premises, upon 24 hours’
prior notice to Tenant (except in an emergency when no Notice shall
be required) for the following purposes:
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(a)
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to
examine the Premises;
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(b)
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to
make such repairs as Landlord, acting reasonably, considers
necessary;
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(c)
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to
have access to underfloor ducts and access panels to mechanical
shafts;
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(d)
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to
check, calibrate, adjust and balance controls and other parts of
the heating or air conditioning systems; and
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(e)
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for
any other purpose necessary to enable Landlord to perform its
obligations or exercise its rights under the Lease.
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In exercising its
rights Landlord shall use reasonable efforts to minimize
interference with Tenant’s use and enjoyment of the
Premises.
Tenant shall not
alter any locks on any doors of the Premises without obtaining
Landlord’s prior written consent which may be conditional
namely on Tenant providing keys to Landlord for any new locks
installed.
12.2 Right
to Show Premises
Landlord and its
agents shall have the right to enter the Premises during Normal
Business Hours upon reasonable prior Notice to show them to
prospective purchasers, or Mortgagees or prospective Mortgagees, or
the Trustee and, during the last 12 months of the Term (or the
last 12 months of any renewal term if this Lease is renewed), to
prospective tenants.
ARTICLE 13: ASSIGNMENT OR
SUBLETTING
13.1
Assignment or Subletting
Tenant may not
assign, transfer or encumber this Lease or sublet all or a portion
of the Premises or permit the Premises or any part thereof to be
used by another, unless Tenant has obtained Landlord’s prior
written consent, which consent shall not be unreasonably withheld.
Without in any way limiting Landlord’s right to refuse its
consent for other serious reasons and notwithstanding any Laws to
the contrary, landlord’s refusal of consent shall be deemed
to be for a serious reason in respect of an assignment, sublease,
use or other transfer if:
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(a)
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Landlord is not satisfied with the
creditworthiness, reputation or business of the proposed assignee
or subtenant; or
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(b)
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the
assignee, subtenant or user proposed by Tenant is then a tenant or
occupant of the Building and Landlord has or will have during the
next 6 months suitable space for rent in the Building;
or
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(c)
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the
proposed assignee, subtenant or user intends to use the Premises to
carry on a business which could breach an exclusivity clause
granted by Landlord.
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Landlord shall not
be obliged to consider any request for such consent or deliver such
consent unless and until Tenant shall have complied with the
following:
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(a)
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Tenant shall have receive a bona
fide third party written offer from a potential assignee,
subtenant or user;
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(b)
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Tenant shall have provide to
Landlord a true copy of such offer and adequate information to
enable Landlord to assess the creditworthiness, reputation and
business of the proposed assignee, subtenant or user;
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(c)
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Unless the proposed assignment or
sublease is to a purchaser in conjunction with the sale or transfer
to such purchaser of one or more divisions of Decima Research Inc.,
or an Affiliate as defined in Section 13-5, Tenant shall first
offer to assign its rights in the Lease or to sublet the Premises,
as the case may be, to Landlord, on the same terms and conditions
as provided in the Lease with the exception of this Article 13
and of any provisions of law requiring consent to any further
sublease or assignment by Landlord, which shall not apply;
and
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(d)
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the
proposed assignee, subtenant or user shall have agreed in writing
with Landlord (and in a form acceptable to Landlord) to observe the
perform all the obligations of Tenant under this Lease in respect
of the Premises or the part thereof which Tenant wishes to sublet,
assign or use.
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Landlord shall
have a period of 10 days after having received the Notice and
all necessary information in which to: (i) accept the offer of
assignment or subletting by Tenant mentioned in
Section 13.2(c); or (ii) consent or not consent to the
proposed assignment, sublease or use by a third party. If Landlord
has consented to the proposed sublease, assignment or use by a
third party, Tenant shall then have a period of 60 days
thereafter in which to enter into a sublease, assignment or use
agreement with the proposed subtenant, assignee or user which
agreement shall have been approved by Landlord prior to execution;
and in the event that Tenant does not assign its rights in the
Lease, sublet or permit the use of the Premises or any part thereof
within such 60-day period hereinabove mentioned, Landlord’s
consent shall be deemed null and void, and in such case, Tenant
shall not be permitted to assign, sublet or permit the use of the
Premises by a third party without again complying with all and each
of the provisions of this Article 13.
Notwithstanding
any assignment, sublet or other transfer of the Premises, Tenant
shall remain jointly and severally liable with the assignee,
subtenant, transferee or user for the performance of all of the
terms, obligations and conditions of the Lease and shall not be
released from performing any of same.
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