Exhibit 10
LEASE
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BETWEEN:
WEST-BEND CONSTRUCTION LTD.
(Landlord)
AND: SPECTRUM TRADING INC.
(Tenant)
AND: Xxx-Xxxxxxxx X. Xxxx
(indemnifier)
DATED: September 1, 1998
LEASE
THIS INDENTURE dated for reference the 1st day of September, 1998.
BETWEEN:
WEST-BEND CONSTRUCTION LTD.(incorporation No. 116,283), a company
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duly incorporated under the laws of the Province of British Columbia,
having its registered office located at 00000 Xxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Landlord")
AND: SPECTRUM TRADING INC.(Incorporation No. 396,738), a company duly
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incorporated under the laws of the Province of British Columbia,
having its registered office located at Xxxxx 000, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(the "Tenant")
AND: XXX-XXXXXXXX X. XXXX of 00000 - 00 Xx., Xxxxxx, X.X. X0X 0X0
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(the "Indemnifier")
WHEREAS:
A. The Landlord is the registered owner of the development known as the
BELVIEW INDUSTRIAL CENTRE, being that certain parcel or tract of land and
premises situate, lying and being at 00000 - 00xx Xxxxxx, Xxxxxx, Xxxxxxx
Xxxxxxxx, more particularly known and described as:
Parcel Identifier: 000-000-000
Xxx 0, Xxxxxxx 00, Xxxxxxxx 0
Xxx Xxxxxxxxxxx Xxxxxxxx
Plan 76694
(the "Lands");
B. The Landlord and the Tenant are desirous of entering into a lease of all
and singular those certain premises described in Schedule "A" hereto (the
"Leased Premises"), forming part of the Phase II Building (the "Building")
situate upon the Lands;
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C. The Landlord has agreed to lease to the Tenant and the Tenant has agreed
to lease from the Landlord the Leased Premises, and the Indemnifier has--agreed
to act as indemnifier, on the terms and conditions hereinafter set forth; "
NOW THEREFORE WITNESSETH that in consideration of the rents, covenants,
agreements, representations and warranties herein contained, the parties hereby
covenant and agree as follows:
ARTICLE 1 - DEFINITIONS
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1.01 The terms defined in this Article shall for all purposes of the Lease
or other instruments supplemental hereto have the meanings herein specified,
unless the context expressly or by necessary implication otherwise requires:
(a) "Leasehold Improvements" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant or any former
occupant in the Leased Premises, including internal stairways,
doors, hardware, partitions (including movable partitions) and wall
-to-wall carpeting, but excluding the Tenant's trade fixtures,
furniture and equipment not in the nature of fixtures;
(b) "Rent" includes Additional Rent, Basic Rent and any other monies
which may become payable by the Tenant to the Landlord pursuant to
this Lease;
(c) "Tenant's Proportionate Share" means that fraction having as its
denominator the total square footage of the rentable area of the
Building (whether actually rented or not), including all common
areas;
(d) "Term" means the period specified in paragraph 3.01, as it may be
extended or renewed by the Tenant pursuant to the option to renew
contained in this Lease.
ARTICLE 2 - GRANT OF LEASE
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2.01 The Landlord hereby demises and leases the Leased Premises unto the
Tenant to have and to hold during the Term and the Tenant hereby takes the
Leased Premises on lease from the Landlord and covenants to pay the Rent and to
observe and perform all the covenants and obligations to be observed and
performed by the Tenant pursuant to this Lease.
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ARTICLE 3 - TERM
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3.01 The Tenant shall have and hold the Leased Premises for and during the
term of three years and two months (3 years & 2 months) commencing on the 1st
day of September, 1998 (the "Commencement Date") and ending on the 31st day of
October, 2001 (the "Term) unless sooner terminated pursuant to any provision
hereof or unless renewed pursuant to the provisions hereof.
ARTICLE 4 - USE
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4.01 The Tenant shall not use nor allow the Leased Premises to be used for
any other purpose than conducting the Tenant's business, being the business of
light manufacturing of jewellery cleaner and tire sealant and related office
uses, as described in Schedule "C", or for such other business purposes as the
Landlord may from time to time approve in writing.
4.02 The Tenant covenants and agrees that it will commence to carry on its
business within thirty (30) days of the Commencement Date and will carry on its
business on the Leased Premises continuously during the Term and any renewal
thereof.
ARTICLE 5 - RENT
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BASIC RENT
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5.01 The Tenant shall pay to the Landlord, commencing on the 1st day of
September, 1998 and continuing thereafter on the first day of each and every
month during the Term, rent (Basic Rent) plus G.S.T. as follows:
Area in Annual Rent Annual Rent Monthly Basic
Year Sq.Ft. Per Sq. Ft. Payable Rent Payable
---- ------- ----------- ----------- -------------
1. 4,400 $5.75 $25,300.00 $2,108.33
2. 4,400 $6.00 $26,400.00 $2,200.00
3. 4,400 $6.00 $26,400.00 $2,200.00
5.02 Upon execution of the Lease the Tenant shall present to the Landlord
twelve (12) post-dated cheques, made payable to the Landlord and commencing
September 1, 1998, representing Basic Rent payable during the first year of the
Term, plus last month's Basic rent, Additional Rent and G.S.T. Upon the first
anniversary of the Commencement Date during the Term the Tenant shall present to
the Landlord a further twelve (12) post-dated cheques representing Basic Rent
and Goods and Services Tax payable during such ensuing period.
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ADDITIONAL RENT
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5.03 The Tenant shall pay to the Landlord as Additional Rent in each year of
the Term, by way of monthly installments as reasonably estimated by the Landlord
and subject to annual adjustment on an actual basis, the Tenant's Proportionate
Share of the following:
(a) the total of all taxes, rates, duties, levies and assessments whatsoever
("Taxes"), whether municipal, parliamentary, school, realty or otherwise,
charged upon the Building, the Lands and all improvements now or hereafter
thereon or upon the Landlord on account thereof, including all taxes, rates,
duties, levies and assessments for local improvements, and including corporation
capital tax assessed to the Landlord in respect of the Building, and including
any and all taxes which may in future be levied in lieu of taxes as hereinbefore
set out, but excluding any Tenant's Taxes (as defined in paragraph 7.02);
(b) the total of all costs and expenses incurred by the Landlord for
operating, maintaining and repairing the Lands and the Building, whether paid or
payable by the Landlord or by others on behalf of the Landlord, and shall
include, without limiting the generality of the foregoing, the costs of the
following:
(i) electricity, fuel and other services and utilities not otherwise
levied directly to the Tenant in respect of the Leased Premises,
including general operating and maintenance expenses used for
heating, ventilating, lighting and air conditioning purposes
throughout the Building, including replacement of florescent tubes
in the common areas inside and outside the Building;
(ii) water and sewer charges;
(iii) painting, maintaining and cleaning interior areas not normally
leased to tenants;
(iv) gardening and landscaping maintenance and the maintenance of all
outside areas on the Lands outside the Building, including garbage
removal or incineration, snow removal and scavenging charges;
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(v) all supplies required for the general operation, care, maintenance
and cleaning of the Lands and Building, including all supplies and
necessities which are occasioned by everyday wear and tear;
(vi) window cleaning;
(vii) charges of any independent contractors employed in the care,
maintenance, cleaning or repair of the Lands and Building;
(viii) charges of any independent contractors employed in the care,
maintenance, cleaning or repair of the Lands and Building;
(ix) security guards and other protection services, should they be
required;
(x) premiums of all insurance maintained by the Landlord in respect of
the Lands and the Building;
(xi) improving the Building if the landlord is required by law or a
competent authority to make such improvements;
(xii) repair and maintenance of the interior of the Building,
but shall not include:
(xiii) depreciation;
(xiv) structural repair or painting and repair of general wear and tear
of the exterior of the Building, including any roof repair or
replacement.
(xv) interest on debt or capital retirement of debt or other costs
properly chargeable to the capital account of the Landlord;
(xvi) costs directly chargeable by the Landlord to the Tenant or to
other tenants of the Building pursuant to the provisions of this
Lease or of their respective leases;
(xvii) costs for which the Landlord is reimbursed by the proceeds of
insurance claims to the extent of such reimbursements.
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5.04 The amount of the Additional Rent which the Tenant is to pay shall be
estimated by the Landlord in advance, acting reasonably, for such period (not to
exceed one year) as the landlord may determine and the Landlord shall furnish to
the Tenant an estimate of the Additional Rent, and the Tenant agrees
to pay to the Landlord such estimated amount in monthly instalments in advance
during each such period.
5.05 Within ninety (90) days after the end of each such period the Landlord
shall furnish the Tenant with a statement showing the actual amount of
Additional Rent and the Landlord and Tenant covenant and agree each with the
other that if an overpayment of the Additional Rent has been make by the Tenant,
the Landlord shall credit such amount to the Additional Rent for the next
ensuing period and if there is no ensuing period such amount shall be paid to
the Tenant; if an amount remains owing to the Landlord in respect of the
Additional Rent, the Tenant shall forthwith pay such amount to the Landlord.
No interest shall accrue to the benefit of the Tenant on the monies so collected
by the Landlord.
GENERAL
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5.06 The Tenant acknowledges and agrees that this shall be a net lease and all
Rent provided to be paid to the Landlord hereunder shall be net to the Landlord
and the Tenant shall yield to the Landlord all Rent during the Term of this
Lease without abatement, deduction or set-off of any nature whatsoever, with
respect to Additional Rent, all costs, expenses, rates, taxes, charges and
obligations of every kind and nature whatsoever relating to the use of the
Lands, Building or Leased Premises, whether or not herein referred to and
whether or not of a kind now existing or within the contemplation of the parties
hereto, shall be paid by the Tenant in the Tenant's Proportionate Share
excepting only those costs, expenses, rates, taxes, charges and obligations as
specifically excepted in this Lease.
5.07 The Tenant shall have the right to contest, in good faith, the amount
or validity of any Taxes imposed in respect of the Leased Premises but this
shall not authorize the Tenant to defer payment of such Taxes nor relieve the
Landlord of its obligation to pay such Taxes.
5.08 If the Tenant shall fail to pay any Tenant's Taxes, the Tenant shall be
responsible for payment of any fine, penalty, interest and expense arising
therefrom, and the Landlord shall be at liberty to pay the same (after ten days'
written notice to the Tenant of its intention so to do) and may add to the next
ensuring instalment of Additional Rent the full amounts so paid including all
penalties, charges and interest in connection therewith.
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5.09 Any monies whatsoever payable by the Tenant to the Landlord other than
Basic Rent and Additional Rent shall be deemed to be Rent reserved in respect of
the Leased Premises and shall be payable with the next ensuing monthly
instalment of Additional Rent unless otherwise provided herein or unless
otherwise mutually agreed between the parties hereto.
5.10 All monies payable by the Tenant to the Landlord pursuant to this Lease
shall be paid in Canadian funds to the Landlord at 00000 Xxxxxxxxx Xxxxx, Xxxxx
Xxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, or at such other place or places as the
Landlord may from time to time direct in writing.
5.11 All monies payable by the Tenant to the Landlord pursuant to this Lease
shall bear interest at the rate of two percent (2%) per month, being twenty-four
(24%) per year, calculated monthly from the due date to the date of payment.
5.12 All Rent reserved herein 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 (1) month, an appropriate pro rata adjustment shall be
made on a daily basis in order to compute Rent for such irregular period.
5.13 The Landlord represents and warrants to the Tenant that, to the best of
the Landlords knowledge, the structure of the Building is in good repair and the
HVAC, electrical and mechanical systems are fully operational and free from
patent defects, normal wear and tear excluded.
ARTICLE 6 - INSURANCE, LIABILITY & INDEMNITY
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The parties hereto covenant and agree each with the other as
follows:
6.01 Tenant's Insurance. The Tenant shall, subject to general availability on
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reasonable commercial terms, and unless otherwise insured by the Landlord's
Insurance, take out and keep in force through the Term and during such other
times as the Tenant occupies the Leased Premises or part thereof such insurance
as is acceptable to the Landlord.
6.02 Forms of Policies
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(a) Each policy required pursuant to paragraph 6.01 shall be in form
acceptable to the Landlord.
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(b) Each policy required pursuant to paragraph 6.01 shall provide that
the insurer must notify the Landlord and any mortgagee in writing by
pre-paid registered mail at least thirty (30) days prior to any
material change or cancellation thereof and that the policy shall
not be invalidated in respect of the interests of the Landlord and
any mortgagee by reasons of any breach or violation of any
warranties, representations, declarations or conditions contained in
such policies, and the policy will be considered as primary
insurance and shall not call into contribution any other insurance
that may be available to the Landlord.
(c) The Tenant shall furnish to the Landlord, forthwith upon
commencement of the Term, true copies of all such policies and shall
provide written evidence of the continuation of such policies not
less than ten (10) days prior to their respective expiry dates. The
cost or premium for each and every such policy shall be paid by the
Tenant.
6.03 Landlord's Insurance. Subject to general availability on reasonable
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commercial terms, the Landlord may effect and maintain during the Term such
insurance as it deems appropriate and shall advise the Tenant of its coverage.
6.04 Insurance Risks. The Tenant shall not do, omit to do, or permit to be
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done or omitted to be done upon the Leased Premises, the Building or the Lands
anything that may contravene or be prohibited by any of the Landlord's insurance
policies in force from time to time covering or relevant to any part of the
Lands or the Building or which would prevent the Landlord from procuring such
policies with companies acceptable to the Landlord or create an additional risk
under any of the Landlord's insurance policies. Save for permitted uses, if
the occupancy of the Leased Premises, the conduct of business in the Leased
Premises or any acts or omissions of the Tenant in the Leased Premises or any
other portion of the Building causes or results in any increase in premiums for
any of the Landlord's insurance policies, the Tenant shall pay any such increase
as Rent forthwith upon demand.
6.05 Cancellation of Insurance. If any insurance policy upon the Building or
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the Lands 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 Leased 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 Leased Premises, and if the Tenant
fails to remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within forty-eight (48) hours after notice
thereof by the Landlord, the Landlord may, at its option, enter upon the Leased
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Premises and remedy the condition giving rise to such cancellation, threatened
cancellation or reduction, including the removal of any offending article, and
the Tenant shall pay the cost thereof to the Landlord within five (5) days after
request. The Tenant agrees that any such entry by the Landlord pursuant this
paragraph is not a re-entry or a breach of any covenant for quiet enjoyment
contained in this Lease or implied bylaw.
ARTICLE 7 - TENANTS COVENANTS
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The Tenant covenants with the Landlord that:
7.01 Pay Rent. The Tenant shall pay to the Landlord all Rent hereby reserved
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and all other monies to be paid by the Tenant in the manner herein provided.
7.02 Business Taxes, etc. The Tenant shall pay all business licence fees and
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other taxes (the "Tenant's Taxes") imposed, assessed, levied or charged against
or in respect of any occupancy or use of the Leased Premises by the Tenant, or
with respect to any personal property, trade fixtures, furniture and facilities
of the Tenant in, on or about the Leased Premises, any fixtures, improvements,
installations, alterations, additions, equipment or machinery from time to time
placed, made, erected, constructed or installed in, on or about the Leased
Premises by, on behalf of or at the request of the Tenant, or the business
conducted by the Tenant in, on or from the Leased Premises, or the income from
such business if, as and when the Tenant's Taxes become due; and the Tenant
shall indemnify and keep indemnified the Landlord from and against all loss,
costs, charges, expenses, penalties, interest charges and liability occasioned
by or arising from or in connection with any and all the Tenant's Taxes;
PROVIDED HOWEVER that such Tenant's Taxes are levied directly to or on behalf of
the Tenant and shall not be included in the calculation of the Tenant's
Proportionate Share of Additional Rent.
7.03 Evidence of Payments. The Tenant shall produce to the Landlord from time
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to time at the Landlord's request satisfactory evidence of the due payment by
the Tenant of all payments required to be made by the Tenant under this Lease.
7.04 Comply with Laws, etc. The Tenant shall, in the use, occupation,
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alteration or repair of the Leased Premises or any property used in connection
therewith, comply with the terms of this Lease and the requirements of all
applicable laws, by-laws, regulations or other governmental ordinances from time
to time in existence. The Tenant shall further comply with the requirements of
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all policies of public liability, fire and any other type of insurance at the
time in force with respect to the Leased Premises or any part thereof.
7.05 Rules and Regulations. The Tenant, its invitees, agents servants or other
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persons will be bound by and will observe any and all reasonable rules and
regulations as the Landlord may from time to time require for the safety,
security, care and cleanliness of the Lands and Building and for the
preservation of good order thereon and therein, and the same will be kept and
observed by the Tenant, its invitees, agents, servants or other persons. The
Landlord shall provide notice in writing to the Tenant of any such rules and
regulations.
7.06 Damage to Building by Tenant. The Tenant shall reimburse the Landlord for
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costs incurred by the Landlord in making good any damage caused to the Leased
Premises, the Building, the Lands, the improvements thereon or any part thereof
including the furnishings and amenities thereof as a result of the negligence or
wilful act of the Tenant, its invitees, agents, servants or other persons from
time to time in or about the Leased Premises, the Building or the Lands.
7.07 Notice of Accidents Defect, etc. The Tenant shall give the Landlord
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prompt written notice of any damage to or defect in the heating and air
conditioning apparatus, water pipes, gas pipes, telephone lines, electric light
or other wires or other casualty.
7.08.1 Assigning or Subletting. The Tenant shall not by license permit any
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other person to occupy the Leased Premises and shall not mortgage this Lease or
any right hereunder or interest herein and shall not assign or sublet the Leased
Premises or any part thereof without the prior consent in writing of the
Landlord, which consent shall not be unreasonably withheld. PROVIDED that the
Tenant shall, at the time of requesting such consent, deliver to the Landlord
such information in writing as the Landlord may reasonably require respecting
the proposed assignee or subtenant, including the name, address, nature of
business, financial responsibility and standing of such proposed assignee or
subtenant. PROVIDED FURTHER that after receiving such request, the Landlord
shall have the right, at its option, to terminate this Lease by giving, within
ten (10) days after receiving the information, sixty (60) days' written notice
of termination to the Tenant. In the event of such termination, the Rent and
all other payments required to be made by the Tenant hereunder shall be adjusted
to the date of termination.
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7.08.2 In no event shall any assignment or subletting to which the Landlord
may have consented release or relieve the Tenant from its obligations fully to
perform all the terms, covenants and conditions of this Lease on its part to be
performed and in any event the Tenant shall be liable for the Landlord's
reasonable costs incurred in connection with the Tenant's request for consent.
7.08.3 If the Tenant is a private company, any change in control of such
company shall be deemed for the purposes hereof, to be an assignment of the
Lease.
7.09 Goods, Chattels, etc. not to be Removed. The Tenant agrees that all
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goods, chattels and trade fixtures when moved into the Leased Premises shall
not, except in the normal course of business, be removed from the Leased
Premises until all Rent due or to become due during the Term of this Lease and
all utility charges are fully paid.
7.10.1 Repairs. Tenant shall, during the Term, well and sufficiently repair,
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maintain, amend and keep the Leased Premises, with the appurtenances and all
fixtures, in good and suitable repair when, where and so often as need shall be,
reasonable wear and tear, damage by fire and other risks against which the
Landlord is insured excepted.
7.10.2 The Landlord and its agents shall have the right at all reasonable
times during the Term to enter the Leased Premises to examine the condition
thereof, and if repairs are required, the Landlord or its agents shall leave
notice of same in writing at the Leased Premises, and the Tenant shall well and
sufficiently repair and make good accordingly with fifteen (15) days from the
date on which such notice is left at the Leased Premises.
7.11 Signs. The Tenant shall not paint, display, inscribe, place or affix any
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sign, picture, advertisement, notice, lettering or direction on any part of the
outside of the Building or in the interior of the Leased Premises visible from
the outside of the Building, or anywhere on or about the Building and outside
the Leased Premises without the prior written consent of the Landlord, such
consent not to be unreasonably withheld; PROVIDED that the Landlord may
prescribe a uniform pattern or identification signs for all tenants of the
Building. Any such permitted signs, displays, etc. shall be installed,
maintained and operated at the expense of the Tenant and will remain the
property of the Tenant and Tenant, upon the expiration or sooner determination
of the Term, shall at its expense remove such signs and make good all damage
caused by such installation, maintenance, operation and removal.
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7.12.1 Alterations. The Tenant shall not without the prior written consent of
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the Landlord, which consent shall not be unreasonably withheld, make any
alterations, repairs or improvements to the Leased Premises. The Tenant shall
submit to the Landlord detailed plans and specifications of any such work or
installation when applying for consent, and the Landlord reserves the- right to
recover from the Tenant the cost of having its architects or engineers examine
such plans and specifications. The Landlord may require that any or all work to
be done, or materials to be supplied hereunder shall be done or supplied by the
Landlord's contractors and/or workmen or by contractors and/or workmen engaged
by the Tenant but first approved by the Landlord. In any event, any or all work
to be done or materials to be supplied hereunder shall be at the sole cost,
expense and risk of the Tenant and shall be done and supplied and paid for in
the manner and according to such terms and conditions, if any, as the Landlord
may prescribe. Any connections of apparatus to the electrical system (other than
routine plug-in appliances) or to the plumbing lines shall be deemed to be an
alteration within the meaning of this paragraph.
7.12.2 The Tenant covenants with the Landlord that the Tenant shall promptly
pay all charges incurred by the Tenant for any work, materials or services that
may be done, supplied or performed in respect of the Leased Premises at the
request of the Tenant and shall forthwith discharge any liens in respect of same
at any time filed against the Lands and keep the Lands and the premises of which
the Leased Premises form a part free from liens in respect of same. In the event
that the Tenant fails to do so, the Landlord may, but shall be under no
obligation to, pay into court the amount required to obtain a discharge of any
such lien in the name of the Tenant and any amount so paid together with all
disbursements and costs in respect of such proceedings shall be worthwith due
and payable by the Tenant to the Landlord, whereupon the Tenant is entitled, as
against the landlord, to the funds so paid into court. The Tenant shall allow
the Landlord to post and keep posted on the Leased Premises any notices that the
Landlord may desire to post under the provisions of the Builders Lien Act or
other legislation.
7.13 Peaceful Surrender. The Tenant shall, at the expiration or sooner
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determination of the Term, peaceably surrender and yield up unto the Landlord
the Leased Premises and deliver to the Landlord all keys to the Leased Premises
which the Tenant and its servants have in their possession.
7.14.1 Care of Premises. The Tenant shall take good care of the Leased
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Premises, keep well painted portions of the interior of the Leased Premises,
keep the Leased Premises in a tidy and healthy condition and shall not cause any
refuse, garbage or other loose or objectionable material to accumulate in or
about the Leased Premises, the Building or the Lands.
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7.14.2 The Tenant shall, at its own expense, be responsible for and shall
maintain and replace from time to time as may be reasonably necessary during the
Term all light fixtures, bulbs and florescent tubes in the Leased Premises.
7.14.3 The Tenant shall, at its own expense, replace or repair, under the
direction and to the reasonable satisfaction of the Landlord, the glass, locks
and trimmings of the doors and windows in or upon the Leased Premises which
become damaged or broken, except if same are damaged or broken by the Landlord,
its employees, agents or contractors.
ARTICLE 8 - LANDLORD'S COVENANTS
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The Landlord covenants with the Tenant that:
8.01 Quiet Enjoyment. The Tenant, paying the Rent hereby reserved and
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performing the covenants herein on the Tenant's part contained, shall and may
peaceably possess and enjoy the Leased Premises for the Term without any
interruption or disturbance from the Landlord or any other person lawfully
claiming by, from or under the Landlord.
8.02 Taxes. The Landlord will pay or cause to be paid all Taxes with respect
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to the Leased Premises except Tenant's Taxes and except as herein otherwise
provided.
8.03 Landlord's Work. The Landlord shall use its best efforts to complete the
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work, if any, designated as "Landlord's Work" in Schedule "D" hereto prior to
the Commencement Date. However, if such Landlord's Work is not so completed, the
Tenant shall accept the Leased Premises in an "as is" condition on the
Commencement Date and the Landlord shall continue thereafter to complete the
Landlord's Work as diligently as possible; in such event there shall be no
abatement of Basic Rent or Additional Rent unless agreed to in writing by the
Landlord.
8.04 Structural Repairs. The Landlord shall be responsible for structural
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repairs to the roof, roof structure, bearing walls, floor and foundation of the
Building, save and except damage caused by the negligence or wilful act of the
Tenant, its servants, agents or employees.
ARTICLE 9 - MUTUAL COVENANTS
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The parties hereto covenant and agree each with the other as follows:
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9.01.1 Damage or Destruction of Premises. Provided that if during the Term or
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any renewal thereof the Leased Premises shall be damaged or destroyed by a peril
or perils which would be covered by a standard insurance policy with extended
coverage endorsement attached thereto, the Rent shall xxxxx in the proportion
that the part of the Leased Premises rendered-unfit for occupancy bears to the
whole of the Leased Premises until the Leased Premises are rebuilt; and the
Landlord agrees that it will with reasonable diligence repair the Leased
Premises unless the Tenant is obligated to repair under the terms hereof or
unless this Lease is terminated as herein otherwise provided; subject always to
the provisions of paragraphs 9.01.2 and 9.01.3
9.01.2 If the Leased Premises are damaged or destroyed by any cause
whatsoever, and if, in the opinion of the Landlord reasonably arrived at, the
Leased Premises cannot be rebuilt or made fit for the purposes of the Tenant
within ninety (90) days of the damage or destruction, the Landlord, instead of
rebuilding or making the Leased Premises fit for the Tenant, may at its option
determine this Lease by giving to the Tenant, within thirty (30) days after such
damage or destruction, notice of termination and thereupon Rent and any other
payments for which the Tenant is liable under this Lease shall be apportioned
and paid to the date of such damage and the Tenant will immediately deliver up
possession of the Leased Premises to the Landlord.
9.01.3 Provided that if the Building or part thereof shall be damaged or
destroyed and such damage or destruction shall, in the reasonable opinion of the
Landlord, materially interfere with the enjoyment of the Leased Premises by the
Tenant, the Rent in respect of the Leased Premises shall xxxxx in proportion to
such interference during the period of such interference.
9.02 Access. The Tenant will permit the Landlord, its servants or agents to
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enter upon the Leased Premises at any reasonable time and from time to time for
the purpose of inspecting and of making repairs, alterations or improvements to
the Leased Premises or to the Building, or at any time in the case of an
emergency, and the Tenant will not be entitled to compensation for any
inconvenience, nuisance or discomfort occasioned thereby. PROVIDED that the
Landlord will proceed under this paragraph in such manner so as to minimize
interference with the Tenant's use and enjoyment of the Leased Premises. Entry
by the Landlord upon the Leased Premises or any part or parts thereof from time
to time pursuant to this paragraph will not be or be deemed to be a re-entry.
Page 15
9.03.1 Landlord's Right to Inspect-Dismay Sign and Exhibit. During the Term
----------------------------------------------------
any person or persons may inspect the Leased Premises and all parts thereof at
all reasonable times on producing a written order to that effect signed by the
Landlord or its agents.
9.03.2 The Landlord shall have the right during the last three (3) months of
the Term to place upon the Leased Premises a notice of reasonable dimensions and
reasonably placed so as not to interfere with the business of the Tenant,
stating that the Leased Premises are for rent and the Tenant shall not remove
such notice or permit same to be removed.
9.03.3 The Tenant shall permit the Landlord or its agents to exhibit the
Leased Premises to prospective tenants during normal business hours of the last
three (3) months of the Term.
9.03.4 At any time during the Term the Tenant shall permit the Landlord or
its agents to exhibit the Leased Premises for the purposes of the Landlords own
financing and re-financing or to exhibit the Leased Premises to any prospective
purchaser of the the Landlords interest in the Building.
9.04 Events of Default. Any of the following constitutes an Event of Default
-----------------
under this Lease and is hereafter referred to as an "Event of Default";
(a) and Rent is in arrears and is not paid within five (5) days after
written demand by the Landlord;
(b) the Tenant has breached any of obligations in this Lease and, after ten
(10) days' written notice from the Landlord (or such shorter period as may
be specifically provided in this Lease),
(i) the Tenant has not remedied such breach, or
(ii) if such breach cannot be reasonably remedied within ten (10) days
or such specified shorter period, the Tenant has failed to
commence to remedy such breach within such ten (10) day or shorter
period and thereafter fails to proceed diligently to remedy such
breach, it being understood that no notice is required from the
Landlord for those defaults listed in sub-paragraphs 9.04(c) to
(i), inclusive;
Page 16
(c) the Tenant or Indemnifier becomes bankrupt or insolvent or takes the
benefit of any statute for bankrupt or insolvent debtors or makes any
proposal, assignment or arrangement with its creditors, or any steps are
taken or proceedings commenced for the dissolution, winding-up or other
termination of the Tenant's business or the liquidation of its assets;
(d) a trustee, receiver, receiver/manager or a person, corporation,
partnership or other entity acting in a similar capacity is appointed with
respect to the business or assets of the Tenant or Indemnifier;
(e) the Tenant or Indemnifier makes a sale in bulk of all or a substantial
portion of its assets other than as approved by the Landlord;
(f) this Lease or any of the Tenant's or Indemnifier's assets are taken
under a writ of execution and such writ is not stayed or vacated within
fifteen (15) days after the date of such taking;
(g) the Tenant abandons or attempts to abandon the Leased Premises or the
Leased Premises become vacant or substantially unoccupied for a period of
ten (10) consecutive days or more without the consent of the Landlord;
(h) the Indemnifier fails to execute and deliver to the Landlord before the
Commencement Date and Indemnity Agreement in the form attached hereto as
Schedule "B" or at any time denies liability under any such Indemnity
Agreement;
(i) any event of default occurs under any lease or agreement relating to other
premises in the Building leased to or occupied by the Tenant or the
Indemnifier; or
(j) any insurance policy covering any part of the Lands, the Building or the
Leased Premises is, or is threatened to be, cancelled or adversely changed
(including a substantial premium increase) as a result of any act or
omission of the Tenant or any person for whom it is legally responsible.
9.05 Landlord's Remedies. If and whenever an Event of Default occurs, then
--------------------
without prejudice to any other right which it has pursuant to this Lease or at
law, the Landlord shall have the following right and remedies, which are
cumulative and not alternative, and only exercisable upon sixty (60) days'
written notice:
Page 17
(a) to terminate this Lease by notice to the Tenant or to re-enter the
Leased Premises and repossess them and, in either case, enjoy them as of
their former estate, and the Landlord may remove all persons and property
from the Leased Premises and store such property at the expense and risk
of the Tenant or sell or dispose of such property in such manner-as the
Landlord sees fit without notice to the Tenant;
(b) to enter the Leased Premises as agent of the Tenant and to relet the
Leased Premises for whatever length, and on such terms as the Landlord in
its discretion may determine and to receive the rent therefor, and as
agent of the Tenant to take possession of any property of the Tenant on
the Premises, to store such property at the expense and risk of the Tenant
or to sell or otherwise dispose of such property in such manner as the
Landlord sees fit without notice to the Tenant; to make alterations to the
Leased Premises to facilitate their reletting; and to apply the proceeds
of any such sale or reletting first, to the payment of any expenses
incurred by the Landlord with respect to any such reletting or sale,
second, to the payment of any indebtedness of the Tenant to the Landlord
other than Rent, and third, to the payment of Rent in arrears, with the
residue to be held by the Landlord and applied to payment of future Rent
as it becomes due and payable; PROVIDED that the Tenant shall remain
liable for any deficiency to the Landlord.
(c) to remedy or attempt to remedy any default of the Tenant under this
Lease for the account of the Tenant and to enter upon the Leased Premises
for such purposes; and the Landlord shall not be liable to the Tenant for
any loss, injury or damages caused by acts of the Landlord in remedying or
attempting to remedy such default and the Tenant shall pay to the Landlord
all expenses incurred by the Landlord in connection therewith;
(d) to recover from the Tenant all damages, costs and expenses incurred by the
Landlord as a result of any default by the Tenant including, if the
Landlord terminates this Lease, any deficiency between those amounts which
would have been payable by the Tenant for the portion of the Term
following such termination and the net amounts actually received by the
Landlord during such period of time with respect to the Leased Premises;
and
(e) to recover from the Tenant as liquidated damages the full amount of Rent
for the unexpired portion of the Term, which shall immediately become due
and payable as accelerated Rent.
Page 18
9.06 Remedies Cumulative. Notwithstanding any other provision in this Lease,
--------------------
the Landlord may from time to time resort to any or all of the rights and
remedies available to it in the event of any default hereunder by the Tenant,
either by any provision of this Lease, by statute or common law, all of which
rights and remedies are intended to be cumulative and not alternative,- and the
express provisions hereunder as to certain rights and remedies are not to be
interpreted as excluding any other or additional rights and remedies available
to the Landlord by statute or the general law.
9.07 Distress. Notwithstanding any provision of this Lease or any provision of
--------
applicable laws, none of the goods and chattels of the Tenant on the Leased
Premises at any time during the Term shall be exempt from levy by distress for
Rent in arrears, and the Tenant waives any such exemptions. If the Landlord
makes any claim against the goods or chattels of the Tenant by way of distress,
this provision may be pleaded as an estoppel against the Tenant in any action
brought to test the right of the Landlord to levy such distress.
9.08 Costs. The Tenant shall pay to the Landlord all damages, costs and
-----
expenses (including, without limitation, all legal fees on a solicitor and
client basis) incurred by the Landlord in enforcing the terms of this Lease, or
exercising any of the Landlord's remedies hereunder, or with respect to any
matter or thing which is the obligation of the Tenant under this Lease, or in
respect of which the Tenant has agreed to insure or to indemnify the Landlord.
9.09 Survival of Obligations. The indemnity provisions of this Lease and the
------------------------
Landlord's rights in respect of any failure by the Tenant to perform any of its
obligations under this Lease shall remain in full force and effect
notwithstanding the expiration or earlier termination of this Lease.
9.10 Overlooking and Condoning. Any condoning, excusing or overlooking by the
-------------------------
Landlord of any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, proviso or condition herein contained shall
not operate as a waiver of the Landlord's rights hereunder in respect of any
subsequent default, breach or non-observance nor so as to defeat or affect in
any way the rights of the Landlord hereunder in respect of any subsequent
default, breach or non-observance.
9.11 Overholding. If the Tenant continues to occupy the Leased Premises after
-----------
the expiration of this Lease with or without the consent of the Landlord, and
without any further written agreement, the tenancy of the Tenant shall, in the
absence of written agreement to the contrary, be from month to month only at a
rental per month equal to one and one-half times the Basic Rent payable
Page 19
hereunder, payable monthly in advance on the first day of each month and shall
be subject to all other terms and conditions of this Lease.
9.12.1 Removal of Improvements and Fixtures. All Leasehold Improvements shall
-------------------------------------
immediately upon their placement become the Landlord's property without
compensation to the Tenant. Except as otherwise agreed by the Landlord in
writing, no Leasehold Improvements or trade fixtures shall be removed from the
Leased Premises by the Tenant either during or at the expiry or earlier
termination of the Term except that:
(a) the Tenant may, during the Term, in the usual course of its business,
remove its trade fixtures, provided that the Tenant is not in default
under this Lease; and
(b) the Tenant shall, at its sole cost remove such, if any, of the Leasehold
Improvements and trade fixtures in the Leased Premises as the Landlord
shall require to be removed, such removal to be completed by the later of
(i) the date of expiry or earlier termination of the Term, or (ii) thirty
(30) days after the receipt by the Tenant of written notice from the
Landlord of such requirement.
9.12.2 The Tenant shall, at its own expense and within thirty (30) days of
receipt of written notice from the Landlord so to do, repair any damage caused
to the Leased Premises or the Building by the installation or removal of the
Leasehold Improvements or trade fixtures of the Tenant. If the Tenant does not
remove the Leasehold Improvements or its trade fixtures as provided in paragraph
9.12.1, they shall, at the option of the Landlord, become the property of the
Landlord and may be removed from the Leased Premises and sold or disposed of by
the Landlord in such manner as it deems advisable. If the Tenant fails to
complete any repair or removal referred to in this paragraph 9.12.1 within the
period specified, the Tenant shall pay compensation to the Landlord for each day
after the expiry of such period until the completion of such repair or removal
at a rate equal to 150% of the per diem Basic Rent payable during the last month
preceding the expiry or earlier termination of the Term, which sum is agreed by
the parties to be a reasonable estimate of the damages suffered by the Landlord
for loss of use of the Leased Premises.
9.13 Unavoidable Failure or Delay. Whenever and to the extent that the Land-
-----------------------------
lord is unable to fulfil, or is delayed or restricted in the fulfilment of, any
obligation hereunder in respect of the supply or provision of any service or
utility or the doing of any work or the making of any repairs by reason of its
being unable to obtain the material, goods, equipment, service, utility or
labour required to enable it to fulfil such obligation or by reason of any
statute, law or order-in-council or any regulation or order passed or made
Page 20
pursuant thereto, or by reason of the order or direction of any administrator,
controller or board, or any governmental department or officer or other
authority, or by reason of its not being able to obtain any permission or
authority required thereby, or by reason of any other cause beyond its control
whether of the foregoing character or not, the Landlord will be entitled to
extend the time for fulfilment of such obligation by a time equal to the
duration of such delay or restriction, and the Tenant will not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned,
and will not be entitled to cancel this Lease.
9.14 Sale of Premises. In the event of a sale, transfer or lease by the
-----------------
Landlord of the Building or a portion thereof containing the Leased Premises or
the assignment by the Landlord of this Lease or any interest of the Landlord
hereunder, the Landlord will without further written agreement, to the extent
that such purchaser, transferee or lessee has become bound by the covenants and
obligations of the Landlord hereunder, be freed, released and relieved of all
liability or obligation under this Lease, whether express or implied. If any
security is given by the Tenant to secure performance of the Tenant's covenants
hereunder, the Landlord may transfer such security to the Purchaser of the
reversion and thereupon the Landlord shall be discharged from any further
liability thereto.
9.15 Landlord not Responsible for Loss or Injury. The Landlord shall not be
--------------------------------------------
responsible in any way for any injury to any person or for any loss of or damage
to any property belonging to the Tenant or its invitees, licensees, agents,
servants or other persons from time to time attending at the Leased Premises
while such person or property is in or about the Lands and Building.
9.16 Subordination. If required by the Landlord so to do, the Tenant shall
-------------
subordinate this Lease to any mortgages, including any deed of trust and
mortgage and all indentures supplemental thereto, which now or hereafter during
the Term affect or relate to this Lease and to all modifications or renewals
thereof. The Tenant agrees to execute promptly, from time to time, and assurance
which the Landlord may require to confirm this subordination and hereby
constitutes the Landlord as agent or attorney of the Tenant for the purpose of
executing any such assurance and of making application at any time and from time
to time to register postponement of this Lease in favour of any such mortgage in
order to give effect to the provisions of this paragraph.
9.17 Registration. This Lease shall not be registered in the Land Title
------------
Office in the registration district in which title to the lands is registered
unless the Landlord so requests, in which case the Tenant shall bear all costs
of such registration. Notwithstanding the provisions of paragraph 9.16, in the
Page 21
event the Landlord requires this Lease to be registered in priority to any
mortgage, trust deed or trust indenture which may now or any time hereafter
affect in whole or in part the Leased Premises or the Building, the Tenant
shall execute promptly upon request by the Landlord any certificate, priority
agreement, or other instrument which may from time to time be requested to give
effect thereto and the Tenant hereby irrevocably appoints the Landlord as agent
and attorney of the Tenant with full power and authority to execute and deliver
such instruments for and in the name of the Tenant.
9.18 Entire Relationship. The parties acknowledge that there are no covenants,
-------------------
representations, warranties, agreements or conditions expressed or implied,
collateral or otherwise, forming part of or in any way affecting or relating to
this Lease or the Leased Premises save as expressly set out in this Lease and
that this Lease, including any Schedules attached hereto, constitutes the entire
agreement between the Landlord, the Tenant and the Indemnifier and may not be
modified except as herein explicitly provided or except by subsequent agreement
in writing of equal formality hereto executed by the Landlord, the Tenant and
the Indemnifier.
9.19 Notices. Any notices herein provided for or given hereunder shall be
-------
sufficiently given if mailed in Canada by registered or certified mail, postage
prepaid as follows:
(a) To the Landlord at:
00000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, X.X.
X0X 0X0
(b) To the Tenant or to the Indemnifier at:
the address of the Leased Premises;
or at such other address as a party may from time to time advise the other(s) in
writing, and such notice shall be deemed to have been received on the third
business day after the date on which it was so mailed except in the event of
labour or other disputes affecting postal service, in which case notice will not
be deemed to have been received until actually received.
9.20 Governing Law. This Lease will be deemed to have been made and will be
--------------
construed in all respects in accordance with the laws of the Province of British
Columbia.
Page 22
9.21 Frustration. Notwithstanding the occurrence or existence of any event or
-----------
circumstance or the non-occurrence of any event or circumstance and so often and
for as long as the same may occur or continue which, but for this paragraph,
would frustrate or void this Lease, the obligations and liabilities of the
parties hereunder shall continue in full force and effect as if such event or
circumstance had not occurred or existed.
9.22 Time of Essence. Time shall be of the essence of this Lease.
----------------
9.23 Headings. The headings in this Lease have been inserted as a matter of
--------
convenience and for reference only and in no way define, limit or enlarge the
scope or meaning of this Lease or any provision hereof.
9.24 Severability. All of the provisions of this Lease are to be construed as
------------
covenants and agreements as though the words importing such covenants and
agreements were used in each separate provision hereof. Should any provision or
provisions of this Lease be illegal or not enforceable, it or they will be
considered separate and severable from this Lease and its remaining provisions
will remain in force and be binding upon the parties hereto as though the said
provision or provisions had never been included.
9.25 Binding. This Lease will enure to the benefit of and be binding upon the
-------
parties hereto and their respective heirs, executors, administrators,
successors, assigns and other legal representatives.
Page 23
ARTICLE 10 - INDEMNIFIER'S COVENANT
-----------------------------------
10.01 The Indemnifier covenants and agrees to execute and deliver to the
Landlord before the Commencement Date and to be bound by the teams of an
Indemnity Agreement in the form attached hereto as Schedule "B".
IN WITNESS WHEREOF the parties hereto have executed this Lease on the day and
year first above written.
THE CORPORATE SEAL of the Landlord )
was hereunto affixed )
in the presence of: )
)
)
)
/s/ signature ) /s/ signature
---------------------------------- )
)
---------------------------------- )
THE CORPORATE SEAL of the Tenant )
was hereunto affixed )
in the presence of: )
)
)
)
/s/ signature ) /s/ signature
---------------------------------- )
)
---------------------------------- )
SIGNED, SEALED AND DELIVERED by )
the Indemnifier in the presence of: )
)
)
)
/s/ signature ) /s/ Xxx-Xxxxxxxx X. Xxxx
---------------------------------- ) ------------------------------
) Xxx-Xxxxxxxx X. Xxxx
---------------------------------- )
SCHEDULE "A"
------------
To that certain Lease dated for reference the
1st day of September, 1998 and made between
WEST-BEND CONSTRUCTION LTD. as Landlord,
SPECTRUM TRADING INC., as Tenant and
XXX-XXXXXXXX X. XXXX as Indemnifier
LEASED PREMISES - DESCRIPTION AND PLAN
--------------------------------------
The Leased premises are that part of the Building situate at 00000 - 00xx
Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, outlined in red on the Plan attached to this
Schedule "A", and known as:
Xxxx 000, constituting 4,400 square feet as
outlined in red on the attached page 2 to this Schedule "A".
The Lease Premises shall exclude the outside face of all perimeter walls of the
Leased Premises but shall include windows and doors in the perimeter walls. The
Leased Premises shall include all installations, fixtures and furnishings and
other amenities situate in the Leased Premises.
In calculating the area of the Leased Premises or of the Building, the
calculation shall include all areas, whether occupied or not, and shall be
computed by measuring from the outside surface of the outer building walls to
the outside of corridors or other permanent partitions and to the center of
partitions which separate the area occupied from adjoining premises without
deductions for columns and projections necessary to the Building, but shall not
include the electrical room or water station in the Building.
[GRAPHIC OMITTED]
SCHEDULE "B" INDEMNITY
In order to induce WEST-BEND CONSTRUCTION LTD. (the " Landlord") to enter into a
Lease (the "Lease") of those certain premises in Building Phase 11, known as
Xxxx 000, 00000 - 00xx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, with SPECTRUM TRADING
INC. (the "Tenant") and XXX-XXXXXXXX X. XXXX, (the "Indemnifier"), such Lease
being dated for reference September 1, 1998, and for other good and valuable
consideration and the mutual covenants of the Landlord, the Tenant and the
Indemnifier under the Lease, the Indemnifier hereby makes the following
indemnity and agreement, jointly and severally with the Tenant, (the
"Indemnity") with and in favour of the Landlord:
(a) At all times during the Term of this Lease and any extension or renewal of
the Lease the Indemnifier shall (i) make the due and punctual payment of all
Rent, monies, charges and other amounts of any kind whatsoever payable under the
Lease by the Tenant whether to the Landlord or otherwise and whether the Lease
has been disaffirmed or disclaimed; (ii) effect prompt and complete performance
of all and singular the terms, covenants and conditions contained in the Lease
on the part of the Tenant to be kept, observed and performed; (iii) indemnify
and save the Landlord harmless from any loss, costs or damages arising out of
any failure by the Tenant to pay the aforesaid Rent, monies, charges or other
amounts due under the Lease or resulting from any failure of the Tenant to
observe or perform any of the terms, covenants and conditions contained in the
Lease; and (iv) indemnify and save their Landlord harmless from any loss, costs
Page 2
or damages incurred by the Landlord if the Tenant is overholding with or without
the permission of the Landlord after the expiration of the Term.
(b) This Indemnity is absolute and unconditional and the obligations of the
Indemnifier shall not be leased, discharged, mitigated, impaired or affected by
(i) any extension of time, indulgences or modifications which the Landlord
extends to or makes with the Tenant in respect of the performance of any of the
obligations of the Tenant under the Lease; (ii) any waiver by or failure of the
Landlord to enforce any of the terms, covenants and conditions contained in the
Lease; (iii) any assignment of the Lease by the Tenant or by any trustee,
receiver or liquidator; (iv) any consent which the Landlord gives to any such
assignment or subletting; (v) any amendment to the Lease or any waiver by the
Tenant of any of its rights under this Lease; (vi) the expiration of the Term;
(vii) any renewal or extension of the Lease pursuant to any option of the Tenant
or otherwise, the Indemnifier hereby agreeing that its obligations under the
Indemnity shall extend throughout the Term, as renewed or extended; (viii) any
loss of or in respect of any security received or intended to have been received
by the Landlord from the Tenant or any other person, whether or not occasioned
or contributed to by or through the act, omission, default or neglect of
Landlord; or (ix) any act or omission of Landlord or any other person whereby
the Indemnifier would or might otherwise be released or have its obligations
hereunder discharged, mitigated, impaired or affected in any way whatsoever;
nothing but payment and satisfaction in full of all Rent and the due performance
and observance of all terms, covenants and conditions on the part of Tenant to
Page 3
be paid and performed shall release the Indemnifier of its obligations
hereunder.
(c) The Indemnifier hereby expressly waives notice of the acceptance of this
Indemnity and all notice of non-performance, non-payment or non-observance on
the part of the Tenant of the terms, covenants and conditions contained in the
Lease. Without limiting the generality of the foregoing, any notice which the
Landlord desires to give to the Indemnifier shall be sufficiently given if
delivered in person to the Indemnifier or mailed to the Indemnifier at the
Leased Premises under the Lease. The Indemnifier may designate by notice in
writing a substitute address for that set forth in the Lease and thereafter
notices shall be directed to such substitute address. If more than one person is
named as Indemnifier, any notice given hereunder or under the Lease shall be
sufficiently given if delivered or mailed in the foregoing manner to any one
such person.
(d) In the event of a default under the Lease or under this Indemnity, the
Indemnifier waives any right to require the Landlord to (i) proceed against the
Tenant or pursue any rights or remedies against the Tenant with respect to the
Lease, (ii) proceed against or exhause any security of the Tenant held by the
Landlord, or (iii) pursue any other remedy whatsoever in the Landlord's power.
The Landlord has the right to enforce this Indemnity regardless of the
acceptance of additional security from the Tenant and regardless of any release
or discharge of the Tenant by the Landlord or by others or by operation of any
law.
Page 4
(e) Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity is not and is not deemed to have been waived,
released, discharged, impaired or affected by reason of the release or discharge
of the Tenant in any receivership, bankruptcy, winding-up or other creditors'
proceedings or the rejection, disaffirmance or disclaimer of the Lease in any
proceeding and shall continue with respect to the periods prior thereto and
thereafter, for and with respect to the Term as if the Lease had not been
disaffirmed or disclaimed, and in furtherance hereof, the Indemnifier agrees,
upon any such disaffirmance or disclaimer, that the Indemnifier shall, at the
option of the Landlord, become the Tenant of the Landlord upon the same terms
and conditions as are contained in the Lease, applied mutatis mutandis. The
liability of the Indemnifier shall not be affected by any repossession of the
Leased Premises by the Landlord, provided, however, that the net payments
received by the Landlord after deducting all costs and expenses of repossessing
and reletting the Leased Premises shall be credited from time to time by the
Landlord against the indebtedness of the Indemnifier hereunder and the
Indemnifier shall pay any balance owing to the Landlord from time to time
immediately upon demand.
(f) No action or proceedings brought or instituted under this Indemnity and
no recovery in pursuance thereof shall be a bar or defence to any further action
or proceeding which may be brought under this Indemnity by reason of any further
default hereunder or in the performance and observance of the terms, covenants
and conditions contained in the Lease.
Page 5
(g) No modifications of this Indemnity shall be effective unless the same is
in writing and is executed by both the Indemnifier and Landlord.
The Indemnifier shall, without limiting the generality of the foregoing, be
bound by this Indemnity in the same manner as though the Indemnifier were the
Tenant named in the Lease. Notwithstanding the foregoing, or any performance in
whole or in part by the Indemnifier of its obligations hereunder or of the
Tenant under the Lease, the Indemnifier shall not have any entitlement to occupy
the Leased Premises except at the Landlord's option as hereinbefore set out, or
otherwise enjoy any of the benefits to which Tenant is entitled under the Lease,
and the Indemnifier shall not be entitled to be subrogated to any rights of the
Landlord whatsoever, unless agreed to by the Landlord in writing.
This indemnity constitutes the complete agreement between the Indemnifier and
the Landlord and none of the parties hereto shall be bound by any
representations or agreements made by any person which would in any way reduce
or impair the obligations of the Indemnifier other than any which are expressly
set out herein. If two or more individuals, corporations, partnerships or other
business associations (or any combination thereof) execute this Indemnity as
Indemnifier the liability of each individual, corporation partnership or their
business association hereunder is joint and several.
Page 6
The obligations of the Indemnifier hereunder shall be assignable by the Landlord
and any assignment of the Lease by the Landlord shall constitute an assignment
of the obligations of the Indemnifier unless the said obligations of the
Indemnifier are specifically excepted from any such assignment of the Lease.
Notwithstanding any alternations to the Leased Premises, the Indemnifier shall
continue to be bound by all its obligations pursuant hereto to the extent of
what would have been its obligations pursuant hereto had such alternations not
been made.
All of the terms, covenants and conditions of the Indemnity extend to and are
binding upon the Indemnifier, his, her or its heirs, executors, administrators,
successors and assigns, as the case may be, and ensure to the benefit of and may
be enforced by the Landlord, its successors and assigns, as the case may be and
any Mortgagee.
IN WITNESS WHEREOF this Indemnity was executed this 1st day of September, 1998.
WITNESS: INDEMNIFIER:
/s/ signature /s/ Xxx-Xxxxxxxx X. Xxxx
------------------------------ ------------------------------
Xxx-Xxxxxxxx X. Xxxx
SCHEDULE "C"
USE OF PREMISES:
For the purpose of light manufacturing of jewellery cleaner and tire sealant.
The use, storage and disposal of any toxic chemical deemed to be hazardous is
prohibited within the said unit.
Any odor deemed to be offensive to be properly ventillated.
