0000 XXXX XXXXXX XXXXXX
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
LEASE
Between - 1862 HOLDINGS LTD.
as Landlord
and- XXXXXXXXXX.XXX INC.
as Tenant
0000 XXXX XXXXXX XXXXXX
XXXXXXXXX, XXXXXXX XXXXXXXX
THIS LEASE MADE THE 1st day of June, 2000.
In Pursuance of the Land Transfer Form Act, Part 2
BETWEEN:
1862 HOLDINGS LTD., a corporation having its head
office address at Suite 1800, Four Bentall Centre,
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
X0X 0X0.
(herein called the Landlord)
OF THE FIRST PART
AND:
XXXXXXXXXX.XXX INC., a body corporate, having a
business office at Suite 1200 - 1130 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(herein called the "Tenant")
OF THE SECOND PART
THIS AGREEMENT WITNESSETH:
SECTION I DEFINITIONS
1.01 As used herein, the following expressions shall have the following
meanings:
(a) "Building": the building(s), structure(s) and improvements
constructed on the Land, including Landlord's equipment, systems
and fixtures therein.
(b) "Business Days": Mondays to Fridays inclusive, legal and statutory
holidays excepted.
(c) "Business Hours": 8:00 A.M. to 5:30 P.M. during Business Days.
Page 1
(d) "Commencement Date":
(i) the 1st day of June, 2000,
(e) "Hazardous Substance": any contaminant; pollutant; dangerous,
noxious or toxic substance; hazardous waste; flammable, explosive
or radioactive material; urea formaldehyde foam insulation,
asbestos, PCBs and substances or any other materials declared or
defined to be hazardous, toxic, contaminants or pollutants in or
pursuant to any applicable federal, provincial or other laws.
(f) "Land": that certain emplacement more fully described in Schedule
"A".
(g) "Lease Year": in respect of the first Lease Year, the period of
time commencing on the Commencement Date and expiring on the last
day of the month of December next following; thereafter Lease Year
shall consist of consecutive periods of twelve (12) calendar
months. However, the last Lease Year shall terminate upon the
expiration of the Term or earlier termination of this Lease, as
the case may be. Landlord may in its discretion change the Lease
Year from time to time provided that such change will not increase
Tenant's liability for any amounts payable pursuant to this Lease.
(h) "Notices": for the purpose of all notices to the Landlord, the
Landlord's address is:
c/o BENTALL REAL ESTATE SERVICES (CANADA) LTD.
Xxxxx 0000, Xxxx Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X lB1
Telephone: (000) 000-0000
Fax: (000) 000-0000
for the purpose of all notices to the Tenant prior to the Commencement Date, the
Tenant's address is: Suite 1200 - 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X
0X0.
Notwithstanding the foregoing, either of the parties may notify the other of a
change of address in which event all official notices shall thereafter be sent
to the last address of which notice is given. All notices required or permitted
to be given by either Landlord or Tenant to the other shall be in writing and
sent by registered mail (postage prepaid and return receipt requested) or by fax
and confirmed by telephone or hand delivered. Delays shall be computed or
measured, as the case may be, from the date of actual delivery of any notice
referred to herein.
(i) "Operating Expenses": all costs, charges and expenses incurred by
the Landlord in connection with the operation, maintenance and
repair of the Land and Building and by way of example only but
without limiting the generality of
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the foregoing, shall include the following without duplication:
heating, ventilating and air-conditioning costs, maintenance,
repairs and replacements; management fees and expenses; salaries,
wages, medical, surgical, general welfare benefits (including
group life insurance and pension payments), payroll taxes,
workmen's compensation insurance contributions and unemployment
insurance contributions for the employees of the Landlord
(including the Building manager but excluding all executive
personnel of the Landlord to the extent not specifically
responsible for the administration of the Land and Building)
engaged in the operation, administration, maintenance and repair
of the Land and Building; security personnel and systems;
electricity (except as charged separately to tenants), fuel, water
(including sewer rental) and other utilities, taxes, licenses and
fees; the cost of conducting any environmental audit or other
testing on or in any part of the Building and Land and all costs
and expenses incurred by the Landlord in removing any Hazardous
Substance from any part of the Building and Land; insurance costs,
premiums and deductible payments in respect of fire, casualty,
liability, property damage, boiler, loss of rental and such other
form or forms of insurance relating to the Land and Building from
time to time in effect; cleaning, supervision, maintenance,
operation and repair costs, expenses and charges relating to the
Land and Building (including, without limitation, the elevators,
the garage and parking facilities, and other common areas and
facilities) and the equipment, systems and fixtures therein and
the making of all necessary repairs, modifications, renovations or
replacements therein and thereto; building and cleaning supplies;
equipment rental; depreciation of machinery, equipment, facilities
and systems which by their nature require periodic replacement;
cleaning of windows and exterior curtain walls; cleaning and
maintenance of grounds (including snow removal), gardening and
landscaping; garbage and waste collection and disposal; amounts
payable pursuant to service contracts with independent contractors
for maintenance, elevators, cleaning, refuse removal, security
operations and repairs; expenditures relating to energy
conservation measures or programs; legal and accounting fees and
expenses; and a 15% administration fee on the aggregate of the
foregoing.
(j) "Premises": those certain Premises substantially as shown outlined
in red on the floor plan(s) hereto attached as Schedule "B"
situated on the twelfth floor (12th) of the Building and
comprising approximately two thousand twenty-four (2,024) square
feet of net rentable area (subject to final measurement).
(k) "Proportionate Share": means a fraction which has as its numerator
the net rentable area of the Premises, and as its denominator, the
gross leasable area of the Building.
(l) "Real Estate Broker", if any: Torode Realty Limited, X.X. Xxx 0,
Xxxxxxxx Xxxxx, Xxxxx 0000, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X.
X0X 0X0
Page 3
(m) "Real Estate Taxes": all taxes, rates and assessments, general or
special, or any other taxes, rates, assessments, levies and
impositions which are now or which may ever be levied against the
Land and Building for municipal, urban community, school, public
betterment, general, local improvement or other purposes. If the
system of taxation now in effect is altered and any new tax or
levy is imposed or levied upon the Land and Building and/or the
owner thereof and/or the revenues therefrom in substitution for or
in addition to all taxes presently levied or imposed upon
immovables, the expression "Real Estate Taxes" shall include such
new tax or levy. Real Estate Taxes shall also include any legal
fees, appraisers' fees or other reasonable costs incurred by the
Landlord in respect of the final determination thereof. If the
competent authorities shall at any time eliminate any tax, rate,
assessment or imposition which compose part of the Real Estate
Taxes, Landlord shall eliminate same from the definition of Real
Estate Taxes.
(n) "Net Rent":
(i) Yielding and paying unto the Landlord during the Term as
rent Thirty Thousand Three Hundred Sixty Dollars
($30,360.00) per annum from the Commencement Date until May
31, 2003 (the "Net Rent") payable at the office of the
Landlord, monthly in advance without demand, deduction,
set-off or abatement whatsoever on the first day of each
and every month in consecutive monthly installments of:
Year Start End Per Sq. Ft. Per Annum Per Month
1 -3 Jun 1/00 May 31/03 $15.00 $30,360.00 $2,530.00
(o) "Schedules": the following Schedules are attached hereto: "A" -
Land Description, "B" -Premises Description, "C" - Landlord's
Work, "D" - Rules and Regulations, "E" - Minimum-Standards for
Tenant Finishes.
(p) "Security Deposit": Four Thousand Seven Hundred Thirty Seven
Dollars and Forty Three Cents ($4,737.43).
(q) "Tax on Capital": the tax or excise imposed upon the Landlord or
the owner of the Land and Building by any governmental authority
which is measured or based in whole or in part upon the capital
employed by such party(ies) with respect to the Land and Building.
(r) "Term": the period commencing on the Commencement Date and
terminating on May 31, 2003.
SECTION II LEASE
2.01 Landlord does hereby lease the Premises to the Tenant for the Term.
Page 4
2.02 Save only for Landlord's Work, if any, referred to in Section 13.01
hereof, Tenant accepts the Premises "as is" and in their present state
and condition.
SECTION III RENTAL
3.01 Tenant covenants and agrees to pay the Net Rent to the Landlord in equal,
consecutive, monthly installments, in advance on the first day of each
calendar month.
3.02 The Net Rent shall be payable in lawful money of Canada to Landlord at
its offices in Vancouver or at such other place or to such other person
as may be specified from time to time by Landlord without any demand
therefor being necessary, the whole without set-off, reduction, deduction
or compensation whatsoever.
SECTION IV NET RENTALS
4.01 Tenant acknowledges that the Net Rent shall be absolutely net to the
Landlord save only as herein expressly set forth and, Landlord shall not
be responsible for any costs, charges, expenses or outlays of any nature
or kind whatsoever arising from or relating to the Premises, the contents
thereof, or the business carried on therein, and the Tenant shall pay all
such charges, impositions, costs and expenses of every nature and kind
(including such as may be incurred by or paid for by Landlord on its
behalf) to Landlord's complete and entire exoneration as well as Tenant's
Proportionate Share of the Real Estate Taxes, Tax on Capital and
Operating Expenses as hereinafter set forth.
4.02 Tenant shall not be responsible for the payment of Landlord's income
taxes (except for Tax on Capital to the extent herein mentioned) and
Tenant shall not be responsible for the payment of principal or interest
due under any deed of trust affecting the Land and Building.
SECTION V REAL ESTATE TAXES, TAX ON CAPITAL AND OPERATING EXPENSES
5.01 The Tenant will pay to the Landlord, or to the taxing authorities if the
Landlord directs, all taxes for the Premises together with its
Proportionate Share of all taxes for the common areas and facilities. If
there are separate assessments for the Premises or if taxes are
apportioned to the Premises by the taxing authorities, then the Tenant's
tax obligations with respect to the Premises will, if the Landlord elects
(this right to elect shall be at the Landlord's sole option and the
method of tax billing may be revised from time to time by the Landlord at
its sole discretion) be as set out in the separate assessments or
apportionment, and the Tenant's tax obligations with respect to the
common areas and facilities will be payable in accordance with Section
4.01. If there are no separate assessments or apportionments for the
Premises, then the Tenant will pay its Proportionate Share of all taxes
levied against the Building and Land. During the first and last years of
the Term (in the event same comprise less than a complete tax year), the
amount the Tenant is required to pay pursuant to the foregoing shall be
subject to per diem adjustments.
Page 5
5.02 On or before the commencement of the Term, the Landlord shall invoice the
Tenant for the Tenant's Proportionate Share of the Real Estate Taxes for
the then current tax year(s) which the Tenant shall pay within thirty
(30) days of receipt or, should actual bills not yet have been received
for such taxation year(s), the Landlord shall estimate the amount of the
Tenant's Proportionate Share of Real Estate Taxes for the then current
tax year(s) and shall invoice the Tenant therefor in equal, consecutive
installments which the Tenant shall pay to Landlord in advance on the
first day of each calendar month. After the end of each Lease Year, the
Landlord shall furnish the Tenant with a statement setting forth such
portion thereof that is payable by the Tenant pursuant to this Section V.
If such amount is greater or less than the payments on account thereof
made by the Tenant pursuant to this Section V, appropriate adjustments
shall be made forthwith.
5.03 In addition to Tenants obligation to pay Landlord's invoice for Real
Estate Taxes when actual bills are received, Tenant shall continue to
make the aforementioned monthly installments on account of estimated
future Real Estate Taxes on the same basis or on the basis of Landlord's
revised reasonable estimate thereof, as the case may be, and so on from
time to time.
5.04 Tenant's Proportionate Share of all expenses incurred by Landlord in
obtaining or attempting to obtain a reduction of Real Estate Taxes shall
be payable by Tenant to Landlord as additional rental on demand. In the
event that the Tenant shall have paid Tenant's Proportionate Share of
Real Estate Taxes pursuant to this Section V and the Landlord shall
thereafter receive a refund of any portion thereof, the Landlord shall
pay to the Tenant the Tenant's Proportionate Share of such refund.
5.05 Landlord shall have no obligation to contest, appeal, object to or
litigate the levying or imposition of Real Estate Taxes and/or any
valuation imposed with respect thereto and Landlord may settle,
compromise, consent so, waive or otherwise determine in its sole
discretion all matters and things relating thereto. Tenant shall not
itself contest, appeal, object to or litigate the levying or imposition
of Real Estate Taxes.
5.06 Should at any time the taxation authorities directly attribute any part
of the Real Estate Taxes to the Premises or the improvements therein,
Tenant shall pay for same in addition to Tenant's Proportionate Share of
the remainder of the Real Estate Taxes (to be deducted from the said
remainder the amount, if any, directly attributed by the taxation
authorities to other premises or tenant improvements in the Building),
the whole in the manner and subject to the conditions hereinabove set
forth.
5.07 Throughout the Term, any renewal thereof and/or holding over thereunder,
the Tenant shall pay as additional rent the Tenant's Proportionate Share
of Operating Expenses and Tax on Capital. During the first and last years
of the Term (in the event same comprise less than a complete Lease Year),
the amount the Tenant is required to pay pursuant to the foregoing shall
be subject to per diem adjustments.
Page 6
5.08 On or before the commencement of the Term, Landlord shall estimate the
amount of Operating Expenses and Tax on Capital for the then current
Lease Year and shall invoice Tenant for Tenant's Proportionate Share
thereof in equal consecutive monthly installments which Tenant shall pay
to Landlord in advance on the first day of each calendar month. After the
end of each Lease Year, Landlord shall furnish Tenant with a statement
setting forth the actual Operating Expenses and Tax on Capital for such
Lease Year together with Tenant's Proportionate Share thereof. If such
amount is greater or less than the payments on account thereof made by
Tenant pursuant hereto, appropriate adjustments shall be made forthwith.
Thereafter, Tenant shall continue to make the aforementioned monthly
installments on account of estimated Operating Expenses and Tax on
Capital for the ensuing Lease Year on the same basis or on the basis of
Landlord's revised reasonable estimate of same, as the case may be, and
so on from time to time.
5.09 Notwithstanding anything hereinabove contained, if the Building is less
than fully occupied during any Lease Year, the Landlord shall be entitled
to allocate such part of the Operating Expenses which are attributable to
the use and occupancy of the Building (such as, but not limited to,
heating, air-conditioning and ventilating expenses, electricity, cleaning
and cleaning supplies) to the rented space in the Building only and the
Tenant shall pay a proportion thereof, same to be the ratio that the net
rentable area of the Premises bears to the net rentable area of all
rented space in the Building, excluding parking and storage areas. In no
event, however, will Tenant be obliged to pay an amount in virtue of the
foregoing which is greater than the amount the Tenant would have paid as
Tenant's Proportionate Share had the Building been fully occupied.
5.10 Failure or delay on the part of the Landlord to avail itself of any of
the provisions of this Section V shall not constitute any waiver or
renunciation of its rights provided herein.
5.11 Notwithstanding anything contained in this Section V to the contrary,
Landlord reserves the right to allocate all or any part of the Real
Estate Taxes, Operating Expenses and Tax on Capital between Tenant and
other tenants of the Building in a manner different than that herein
contemplated should such allocation, in Landlord's sole reasonable
discretion, appear more equitable in the circumstances.
SECTION VI USE OF PREMISES
6.01 The Tenant shall use the Premises for a business office and for no other
purpose. Nothing herein shall be so interpreted as to imply that this
Lease is conditional upon the Tenant obtaining any permits or licenses
for the exploitation of such business from any municipal, provincial or
other authority.
SECTION VII UTILITIES AND ADDITIONAL CHARGES
7.01 The Tenant shall pay as and when due all water taxes, business taxes and
other similar rates and taxes which may be levied or imposed upon the
Premises or upon the
Page 7
business carried on therein, and also all other rates and taxes which are
or may be payable by the Tenant as tenant or occupant thereof. If the
mode of collecting such taxes be so altered as to make the Landlord
and/or the proprietor liable therefor instead of the Tenant, the Landlord
will pay such accounts and the Tenant will repay the Landlord as
additional rent on demand the amount so paid.
7.02 The Landlord (subject to its ability to obtain the same from its
principal supplier) will cause the Premises to be supplied with electric
current for the lighting and power required therein for the operation of
the Tenant's reasonable needs, which current the Tenant hereby agrees to
take and receive from the Landlord.
In the event any special lighting (above Building standard) or
equipment (including, but not limited to, special heating,
ventilating, air-conditioning systems, printing presses, computers
and the like) is installed in the Premises or lighting is used
beyond Business Hours or in any other event where there is reason
to believe that excess electricity is being consumed in the
Premises, the Landlord shall have the right to survey or meter (at
the Tenant's expense) the total electrical consumption and the
Tenant shall pay for any excess disclosed by said survey or
metering by appropriate increases in the aforementioned monthly
installments.
7.03 The Tenant shall pay as and when due all license fees, water rates, sewer
rates and other like fees, charges, rates and assessments that may be
levied, charged, rated or assessed against the Premises and/or the
equipment and facilities thereon or therein and/or any property on the
Premises owned or brought thereon by Tenant.
7.04 In the event the Premises are separately metered, utilities charges will
be determined on the basis of those meters. Otherwise the Landlord will
determine in an equitable manner (with the determination being final and
binding) the utilities charges for the Premises on the basis of check
meters if they exist, hours of usage, square footage, connected load and
any other methods as would be practiced by a prudent landlord. The Tenant
will pay for the cost of any metering which the Tenant requests the
Landlord to install or which the Landlord wishes to install in the
Premises or in the Building for the purpose of assisting in determining
the consumption of any utility charges applicable to the Premises.
The Tenant shall pay for the cost of all other utilities consumed
or used within the Premises, same to include, without limitation,
the cost of electric current, water, gas, steam, fuel or other
energy and Tenant shall pay for the cost of all fittings,
machines, apparatus, meters or other things leased in respect
thereof and for all work or services performed by any corporation
or commission in connection with any such utilities.
7.05 In the event the Premises are separately metered, the Tenant will pay
promptly and directly to any public authority any charges referred to in
this Section VII and Tenant will retain evidence of payment of any
charges referred to in this Section VII which it
Page 8
pays directly to any public authority for inspection by Landlord at
Tenant's offices during normal Business Hours upon reasonable prior
notice, the whole for a period of two (2) years following the due dates
for payment of said charges.
SECTION VIII SERVICES
8.01 (a) Business Hours: The Landlord shall keep the Building open during
Business Hours. The Landlord shall make reasonable provision to
allow Tenant access to the Premises at other times.
(b) Cleaning: The Landlord shall clean the Premises in accordance with
standards for comparable buildings at such time or times outside
Business Hours on Business Days as Landlord may, in its sole
discretion, determine. The Tenant shall leave the Premises
reasonably tidy for purposes of cleaning.
(c) Heating: The Landlord shall provide heat to the Premises during
Business Hours.
(d) Air-Conditioning: The Landlord shall provide reasonable
air-conditioning service during Business Hours. Any special
requirements or equipment above Building standards shall be at the
Tenant's sole cost and expense. The Landlord shall not be
responsible for the failure of air-conditioning equipment to
perform its function if such failure shall result from unapproved
partitioning within the Premises or unapproved changes or
alterations thereto, the failure on the part of the Tenant to
shade windows which are exposed to the sun, or excessive use of
electrical power by the Tenant.
(e) Elevators: The Landlord shall keep the passenger elevator(s) in
operation during Business Hours. Limited elevator access to the
Premises will be made available at all other times.
(f) Lighting: The Landlord shall supply Building standard lighting
fixtures as well as lamps, bulbs, tubes, starters and ballasts on
the Commencement Date. Lamps, bulbs, tubes, starters and ballasts
shall thereafter be replaced by Landlord at the Landlord's cost,
Landlord reserving the right to relamp the entire Premises at
Tenant's cost when Landlord, acting reasonably, considers it cost
efficient or otherwise in accordance with sound property
management practice to do so.
(g) Public Washrooms and Facilities: The Landlord shall furnish men's
and women's washroom facilities in the central service core on
each office floor. Said washrooms shall be supplied with soap,
paper supplies and other necessary materials.
8.02 Except as provided for herein, the cost of providing all of the foregoing
services shall form part of Operating Expenses save that the provision of
any services other than cleaning, if provided outside Business Hours (to
the extent same can be made available
Page 9
upon reasonable prior notice to Landlord), shall be at the Tenant's sole
cost and expense. The cost of supplies to washrooms contained within the
Premises other than in the central service core shall be for Tenant's
account.
SECTION IX SECURITY
9.01 The Tenant shall furnish the Premises with and maintain therein a
sufficient quantity of furniture, fixtures, equipment and other effects
to secure the payment of one (1) year's Net Rent, Tenant's Proportionate
Share of the Real Estate Taxes, Operating Expenses and Tax on Capital.
9.02 The Tenant represents and warrants that all furniture, fixtures, and
other effects garnishing the Premises will be free and clear of all
liens, privileges, conditional sale contracts and other encumbrances of
any nature whatsoever and all such furniture, fixtures and other effects
will be bound with a lien in favour of the Landlord and chargeable for
the Net Rent and all additional rent owing hereunder and for the
fulfillment of the other covenants and agreements of the Tenant herein
contained.
9.03 In the event the Tenant fails to provide the security hereinabove
mentioned or should the value of the security provided by the Tenant be
diminished or reduced as a consequence of third party rights or
otherwise, then in either event the Landlord may, without prejudice to
any of its other rights in virtue of this Lease but in addition thereto,
exact from the Tenant alternate security by way of a cash deposit equal
to the aggregate of one (1) year's Net Rent, Real Estate Taxes, Operating
Expenses and Tax on Capital due hereunder, said alternate security to be
governed by all of the provisions of Section XVIII hereof. The Tenant
undertakes to provide said alternate security forthwith upon demand for
same.
SECTION X ASSIGNMENT AND SUBLETTING
10.01 The Tenant shall not assign this Lease or sublet the Premises or any part
thereof or allow the Premises or any part thereof to be used by another
without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld. The Landlord's refusal of consent shall be
deemed reasonable (without in any way restricting the Landlord's right to
refuse its consent on other reasonable grounds) where the assignee or
subtenant proposed by the Tenant is then a tenant of the Building and the
Landlord has or will have during the next ensuing eighteen (18) months
suitable space for rent in the Building, where the nature of the business
to be conducted by the assignee or subtenant conflicts with exclusive
rights granted other tenants or occupants of the Building, where the
prospective assignee or subtenant is a consulate, embassy, trade
commission or other representative of a foreign government, where the
Premises are intended to be used as medical, dental, government or
quasi-government offices, where the proposed assignee or subtenant does
not intend to bona fide physically occupy and carry on business from the
Premises or when the proposed assignment or sublease is made prior to the
Tenant commencing to physically and bona fide occupy and carry on
business from the Premises.
Page 10
10.02 As an alternative to such consent (and without being obliged or affecting
its other rights), the Landlord shall have the right:
(a) to sublease the Premises from the Tenant (or such part thereof as
Tenant seeks to sublet) under the same terms and conditions set
forth in the agreement with the assignee or subtenant except in
respect of rent which shall be the lesser of the Net Rent (or a
proportionate amount thereof in the event only a part of the
Premises is intended to be sublet) or the rental payable pursuant
to the assignment or sublease agreement, as the case may be; or
(b) to cancel the Lease for the Premises (or, as the case may be, for
that portion thereof that Tenant seeks to sublet) the whole as, of
and from the date Tenant wishes to assign this Lease or sublet the
Premises or permit their use by another. Landlord shall exercise
the rights herein granted by sending notice thereof to Tenant
within thirty (30) days following receipt of the notice referred
to in Section 10.04 hereof.
10.03 Notwithstanding any assignment, subletting or permitted use by another,
the Tenant shall remain jointly and severally responsible with the
assignee, sublessee or user (and, in the circumstances contemplated in
Section 10.05 hereof, with the party who acquires control), without
benefit or division or discussion, for the payment of the Net Rent and
for the performance of all other obligations of the Tenant under this
Lease for the original Term if the Tenant assigns the Lease in the
original Term and any renewals. The Net Rent payable by the Tenant shall
be increased by an amount equal to the profit, if any, derived by Tenant
from the sublease, assignment or transfer. For all purposes hereof,
"profit" shall mean the rent, additional rent and other amounts payable
directly or indirectly by the subtenant, transferee or assignee to or for
the account of the Tenant in excess of the Net Rent and additional rent
payable by Tenant hereunder including but not limited to all capital or
other sums paid for improvements or otherwise. Landlord shall have the
right to require the subtenant, transferee or assignee to pay its rent
directly to the Landlord.
10.04 Tenant agrees to provide Landlord with at least thirty (30) days' prior
written notice of the name, address and nature of business of the
proposed assignee or sublessee, such credit references and other
information as Landlord may reasonably request and copies of the executed
assignment or sublease agreement which must be conditional upon Tenant
obtaining the Landlord's consent as hereinabove provided.
10.05 If at any time effective control of the Tenant is acquired or exercised
by any person or persons not having effective control of the Tenant on
the date of execution of this Lease, the same shall be deemed to
constitute a sublease to the party acquiring such control subject to all
of the provisions hereof.
10.06 The Tenant will not advertise the Premises for the purpose of any
sublease or assignment without obtaining the prior written approval of
the Landlord to the
Page 11
proposed text, such approval not to be unreasonably withheld or delayed.
In no event will the rental rate appear in any such advertisements.
SECTION XI READINESS FOR OCCUPATION
11.01 The Landlord shall not be liable for damages in the event Landlord's
Work, if any, in the Premises has not been completed by a particular
date, it being understood that this Lease shall remain in full force and
effect except that Net Rent shall be calculated as and from the date that
the Landlord's Work has been substantially completed or would have been
substantially completed had the Tenant not delayed the Landlord in the
completion of Landlord's Work.
SECTION XII TENANT CARE
12.01 The Tenant shall maintain and keep the Premises, including all
replacements, alterations, additions and improvements thereto, in good
order and condition and shall, in accordance with the procedures set
forth in Section XIII hereof, perform or cause to be performed all
repairs (other than structural repairs of a non-recurring nature not
caused by Tenant's fault, negligence or breach of any obligation
hereunder or at law) which may from time to time be required therein or
thereto.
12.02 At the expiration or sooner termination of this Lease, Tenant shall
return the Premises to Landlord in the state and condition in which they
are to be maintained and repaired as herein provided.
12.03 The Tenant shall not bring into the Building any machinery, equipment,
article or thing that by reason of weight or size might cause damage
thereto and in no event shall Tenant overload the floors of the Building.
12.04 In the event Tenant fails to comply with the obligation to maintain,
repair and replace imposed hereunder, the Landlord, after giving written
notice of five (5) days to the Tenant, shall have the right to carry out
such maintenance, repairs and replacements and any and all costs incurred
by the Landlord in so doing, together with a fee equal to twenty percent
(20%) of such costs, shall be payable by the Tenant to Landlord as
additional rent on demand. Notwithstanding the foregoing, in the event
any work or action is urgently required at times when authorized
representatives of Tenant cannot be located, Landlord may proceed with
such reasonable steps as in its discretion are deemed by it to be
necessary for the protection and preservation of the Premises and Tenant
shall reimburse Landlord for the amount expended as additional rent on
demand.
SECTION XIII ALTERATIONS, ADDITIONS, IMPROVEMENTS AND REPAIRS
13.01 Landlord shall effect, at its expense, the work, if any, more fully
described in Schedule "C" hereto. All improvements in and to the Premises
other than those set forth in Schedule "C" shall be the responsibility of
Tenant and shall be performed at Tenant's sole cost and expense, the
whole subject to the terms and conditions set forth in this
Page 12
Section XIII. Should the Tenant require additional utilities, heating,
ventilation or air conditioning, lighting or sprinklers, because of the
nature of its business, in excess of those already provided to the
Premises, then the Tenant shall be responsible for the cost of installing
and/or supplying such additional utilities, subject to the Landlord's
prior approval.
All architectural plans and specifications setting forth Tenant's
work may be prepared by a designer and/or architect of the
Tenant's choice but shall be subject to Landlord's prior written
approval as herein mentioned. Said plans and specifications shall
include, without limitation, complete working drawings and
specifications, floor plans, interior elevations, interior
finishing schedules, special facilities or installations that
affect the Premises and/or Tenant's perimeter walls, mechanical,
plumbing, sprinklers, telephone and electrical work (including all
fixtures, equipment and under floor services when applicable) and
static and dynamic loading of floors. The Tenant plans and
specifications shall be drawn to the same scale as the base
Building working drawings. Tenant shall be responsible to ensure
that the Tenant work, as designed, complies with all relevant
laws, by-laws and regulations as well as with the Building module
and structure and with the Building's mechanical, electrical,
plumbing and other systems. Complete working drawings, plans and
specifications shall be submitted to Landlord within twenty-one
(21) days following execution of the Lease or within such other
delay as the Landlord and Tenant have otherwise agreed. Within ten
(10) days following receipt of the complete working drawings,
plans and specifications, Landlord shall notify Tenant either of
its approval thereof or of changes required and if Landlord
notifies Tenant that changes are required, Tenant shall, within
seven (7) days thereafter, submit the necessary amended drawings,
plans and specifications. Failure by Tenant to submit complete
working drawings, plans and specifications within the delays
herein contemplated shall be deemed to be a delay in the
completion of the Premises attributable to Tenant's fault.
13.02 All improvements, alterations, additions or repairs required or requested
by the Tenant may, at the option of Landlord, be carried out by the
Landlord or under the latter's coordination, in which event the Tenant
shall pay for the costs thereof as well as an amount equal to twenty
percent (20%) of such cost on account of Landlord's overhead,
coordination and administration. In addition, the Tenant shall pay for
the cost of all architectural, engineering and/or working drawings
prepared to comply with the Tenant's requirements and for the cost of
inputting such working drawings in any Building computerized design
records that may from time to time be maintained as well as the foregoing
fees calculated on the cost thereof. Payment shall be effected by way of
a cash deposit and progress draws during the course of the work, the
specifics of which shall be established by the Landlord, acting
reasonably, from time to time.
13.03 Should the Landlord elect not to carry out improvements, alterations,
additions or repairs required or requested by the Tenant, the Tenant
shall not itself make any such improvements, alterations, additions or
repairs to the Premises without obtaining all
Page 13
necessary permits from the appropriate public authorities and without the
prior written consent of the Landlord, pursuant to Section 13.01 hereof.
The Tenant shall be required to submit to the Landlord plans and
specifications (in accordance with the provisions of Section 13.01 hereof
and within the delays therein mentioned) for all such improvements,
alterations, additions or repairs and Tenant shall pay for the cost of
inputting such plans and specifications in any Building computerized
design records that may from time to time be maintained. All such work
shall be done by contractors approved by the Landlord, which approval
shall not be unreasonably withheld. All such work shall be conditional
upon such contractors paying the cost of temporary services and
coordination during such construction, upon such contractors timing and
performing their work in accordance with such rules and regulations as
the Landlord may from time to time prescribe, upon such contractors
carrying property damage and liability insurance satisfactory to the
Landlord for its operations in the Building and upon the employees of
such contractors not causing any labour trouble by their presence in the
Building. Furthermore, the Tenant shall require that prior to entering
the Premises or performing any work therein, the Tenant's contractors
shall deliver to the Landlord a waiver and release from all privileges or
rights of privilege that may then or thereafter exist for work done,
labour performed or materials furnished under any contract and such
contractors must agree to furnish to the Landlord a good and sufficient
waiver of privilege for every subcontractor and supplier furnishing
labour and material under the contract. The Tenant shall be responsible
for any costs and expenses of the Landlord occasioned directly or
indirectly by such work in the Premises. The cost of such improvements,
alterations, additions or repairs shall be the sole responsibility of the
Tenant and if any payment in respect thereof shall be made by the
Landlord, the Landlord hereby reserving the right to do so in its sole
discretion, the same shall be immediately payable by the Tenant on demand
as additional rent. Tenant shall furthermore pay to the Landlord as
additional rent on demand an amount equal to twenty percent (20%) of the
total cost of all of such work representing Landlord's fee for
administration and coordination of same.
13.04 All improvements, alterations, additions or repairs to the Premises
(including all lighting installations such as, but not limited to,
spotlights and tracks, all floor finishes of whatsoever nature placed
upon the concrete floor of the Premises and all window coverings,
built-ins and the like) shall, upon their completion, become a part of
the Premises and the property of the Landlord and shall be surrendered
with the Premises upon termination of this Lease without any compensation
being due therefor; provided, however, that the Landlord shall have the
option, in its sole discretion, to require the Tenant to remove at the
Tenant's cost and under the Landlord's coordination and direction, all or
any such improvements, alterations, additions or repairs including such
as may have been made by Landlord at Tenant's request prior to or during
the Term and to restore the Premises or any part thereof to their
original condition, reasonable wear and tear only excepted.
13.05 If required by the Landlord or any governmental authority at any time
during the term, the Tenant shall, at its sole cost and expense, remove
from the Premises prior to the end of the Term, any Hazardous Substance
which is or has been located, stored or
Page 14
incorporated in or on any part of the Premises by the Tenant. The
foregoing obligation to remove any such Hazardous Substance shall survive
the expiration or earlier termination of this Lease.
SECTION XIV MAJOR REPAIRS
14.01 Should the Landlord effect improvements, alterations, additions or
repairs to the Premises or Building, the Tenant shall permit same to be
performed without being entitled to any indemnity or reduction in rental
or any damages or compensation therefor. All such work shall be completed
by the Landlord with reasonable dispatch and the cost thereof shall be
included in Operating Expenses unless such work is otherwise Tenant's
responsibility hereunder in which event Tenant shall pay for the full
cost thereof.
SECTION XV ACCESS TO PREMISES
15.01 The Landlord, its agents and representatives may enter the Premises at
all reasonable times (and at any time during an emergency) to (a) inspect
the Premises or any part thereof for the existence of any Hazardous
Substance and to conduct an environmental audit or any testing required
to satisfy itself that the Tenant's operation is being run in compliance
with the applicable environmental laws, by-laws, rules and regulations,
and (b) examine their condition and to view their state of repair or
otherwise and Tenant covenants to comply and/or repair according to
notice.
15.02 The Tenant shall allow the Premises to be exhibited during normal
Business Hours to persons interested in acquiring the Land or Building or
advancing money upon the security thereof. During the last eighteen (18)
months of the Term, the Tenant shall also allow the Premises to be
exhibited to persons interested in leasing same.
SECTION XVI PROTECTION OF EQUIPMENT
16.01 The Tenant shall protect from damage and make all necessary repairs and
replacements to the heating, ventilating and air-conditioning apparatus,
water, gas and drain pipes, water closets, sinks and accessories thereof
in and about the Premises and keep same free from all obstructions that
might prevent their free working and shall give to the Landlord prompt
written notice of any accident to or defects in same or any of their
accessories.
SECTION XVII COMPLIANCE WITH LAWS AND INDEMNIFICATION
17.01 (a) The Tenant will not do or permit anything to be done in, upon or
about the Premises or bring or keep anything therein which will in
any way conflict with the regulations of the fire, police or
health departments or with the rules, regulations, by-laws or
ordinances of the municipality in which the Land and Building are
situate, the applicable urban community (if any), or any
governmental authority having jurisdiction over the Premises or
the business
Page 15
conducted therein, all of which the Tenant undertakes to abide by
and conform to.
(b) The Tenant shall not use or permit or suffer the use of the
Premises or any part thereof to generate, refine, treat,
transport, store, handle, dispose of, produce, process or
otherwise deal with any Hazardous Substance except in strict
compliance with all applicable federal, provincial or municipal
laws, draft laws, or regulations, including, without limitation,
environmental, land use, occupational, health and safety laws,
regulations, requirements or permits, and only if it has received
the prior written consent of the Landlord, which consent may be
unreasonably withheld.
(c) The Tenant covenants to conduct itself and its business conducted
on or from the Premises in compliance with, whether in draft form
or otherwise, all federal, provincial and municipal laws, bylaws,
regulations, orders, directives, codes, ordinances and approvals
of all governmental authorities relating to environmental matters,
or regulating air pollution, water pollution, and the use,
storage, handling, treatment, or disposal of hazardous or toxic
substances or other materials (including, without limitation, raw
materials, products, supplies or wastes). The Tenant agrees to
send to the Landlord within FIVE (5) days of receipt or completion
thereof, any report, citation, or other writing including without
limitation, hazardous waste disposal manifests, by, to, or from
any governmental authority empowered to regulate any of the
foregoing activities. The Tenant further agrees to remove from the
Premises and properly dispose of and rectify any environmental
impairment or damage caused by or contributed to by, any such
hazardous or toxic substances, soils, or other materials when and
as required from time to time or at any time by applicable laws,
regulations and ordinances, or by the Landlord and in any event
prior to the termination of its possession of the Premises.
(d) The Tenant covenants and agrees that it will indemnify, save and
hold harmless the Landlord, its agents and contractors from and
against any penalty imposed for or damage arising from the breach
of any such rules, regulations, by-laws or ordinances by the
Tenant or those for whom the Tenant is responsible.
17.02 The Tenant shall pay to the Landlord any extra premiums of insurance that
the company or companies insuring the Land and Building may exact in
consequence of the business carried on by the Tenant, of anything brought
into or stored in the Premises by the Tenant, or of the Tenant's
operations. The Tenant shall furthermore protect the Landlord from claims
made by other tenants in the Building in consequence of their insurance
rates being increased as a result of such causes. The Tenant shall in no
event bring into or store in the Premises anything which may make any
insurance carried by the Landlord subject to cancellation.
17.03 The Tenant shall comply with the rules, requirements and recommendations
of the Landlord's insurers, and with the requirements of all insurance
companies having
Page 16
policies of any kind whatsoever in effect covering the Land and Building
including policies insuring against tort or delictual liability. In no
event shall any inflammable materials or explosives (except to the extent
required by Tenant to carry on its business and then only as permitted by
Landlord's and Tenant's insurers) be taken into or maintained within the
Premises.
17.04 The Tenant shall indemnify, save and hold harmless the Landlord from and
against all claims, liabilities or payments relating to the use and
occupancy of the Premises and, without limiting the generality of the
foregoing, Tenant does hereby agree to indemnify, save and hold harmless
the Landlord from and against all claims, liabilities, damages, costs,
suits or actions arising from:
(a) any accident, injury (including death) or damage whatsoever or
howsoever caused to any person or persons (including the Tenant,
its employees, agents and invitees, any subtenant or licensee of
the Tenant and all other persons claiming through or under any of
them) or to the property of any such person or persons occurring
during the Term, caused by the Tenant's want of repair to, or by
the Tenant's use or occupation of the Premises;
(b) any breach, violation or non-performance of any covenant,
condition or agreement set forth in the present Lease on the part
of Tenant to be fulfilled, kept, observed or performed;
(c) the conduct or management of or from any work or thing whatsoever
done, or not done, in or about the Premises by the Tenant, its
agents, employees or contractors, or arising from any act of
negligence by the Tenant or any of its agents, employees or
contractors; and
(d) the failure of the Tenant to fully, faithfully and punctually
comply with all of the legitimate requirements of any public or
quasi-public authority having jurisdiction over the Premises.
17.05 Notwithstanding any express or implicit obligation on the part of
Landlord to insure and further notwithstanding any obligation on the part
of Tenant to contribute to the Landlord's premiums, Tenant acknowledges
that Tenant shall remain responsible for its negligence and those of all
persons for whom it is in law responsible, that no insurable interest is
conferred upon the Tenant under any of Landlord's insurance policies and
that Tenant shall have no right to recover any proceeds thereunder or
claim any right or title to such proceeds.
17.06 The Landlord shall maintain, operate, insure and repair the Building as
would a prudent landlord of similar buildings.
SECTION XVIII SECURITY DEPOSIT
18.01 The Landlord acknowledges receipt of the Security Deposit, to be held
without interest, as security for the rent payable hereunder and or the
faithful performance by
Page 17
the Tenant of each and every one of the covenants, conditions and
agreements herein stipulated. The said sum shall not be applicable by the
Tenant to the payment of Net Rent or any other charges for which the
Tenant may become liable under this Lease and such Security Deposit shall
not relieve the Tenant from the faithful and punctual performance of all
covenants and conditions herein contained. If at any time during this
Lease any sum owing by the Tenant hereunder is not paid when due,
Landlord may appropriate and apply all or such part of the Security
Deposit as is necessary to compensate Landlord for the amount then owing
by Tenant, plus reasonable expenses incurred in connection therewith, and
in such event Tenant shall remit to Landlord a sum sufficient to restore
the Security Deposit to the original amount deposited within five (5)
days of Landlord's written demand thereof, the whole without prejudice to
such other rights, remedies and recourses as avail to Landlord as a
consequence of Tenant's default. Ninety (90) days following the
termination of this Lease or any renewal thereof, the said Security
Deposit shall be returned to the Tenant providing the Tenant shall have
complied in all respects with all terms, covenants and conditions herein
contained. Notwithstanding the foregoing, if the Tenant fails to execute
and deliver this Lease within five (5) days of receipt from the Landlord
or fails to take possession of the Premises by the Commencement Date, the
Landlord may, at its sole option, terminate this Lease, whereupon the
Security Deposit shall be retained by the Landlord as liquidated damages
on account of the Tenant's default and not as a penalty.
SECTION XIX FIRE AND DESTRUCTION OF PREMISES
19.01 In the event the Building is destroyed or damaged by fire or other cause,
or partly destroyed or damaged so that the Landlord shall decide not to
restore or rebuild substantially the same nature and quality structure
(whether or not the Premises are also damaged or destroyed), the Landlord
may, within One Hundred and Eighty (180) days after such fire or other
cause, give notice in writing to the other of such decision, whereupon
this Lease shall expire forthwith and the Tenant shall immediately
surrender the Premises and all interest therein to the Landlord and shall
pay rent only to the date that the Premises are destroyed or the date of
such surrender, whichever shall first occur. However, if the Landlord
shall decide to restore or rebuild substantially the same nature and
quality structure, this Lease shall remain in full force and effect and
the Landlord agrees that the same shall be repaired with reasonable
dispatch in which event the Net Rent shall be diminished in proportion to
the time and the part of the Premises of which the Tenant has been
deprived. In no event shall the Landlord be liable to the Tenant for any
loss or damage occasioned by such fire or other cause.
19.02 In the event Landlord elects to restore or rebuild as aforesaid, it is
expressly understood and agreed that the extent of Landlord's obligation
will be to rebuild or restore to substantially the condition in which the
Building and Premises were initially delivered to Tenant as modified to
be consistent with the plans, specifications and design criteria selected
by Landlord at the time of reconstruction. Nothing herein contained shall
be construed to oblige the Landlord to repair or reconstruct any
alterations, improvements or property of the Tenant. On the contrary, all
other
Page 18
improvements in and to the Premises shall be the responsibility of Tenant
who shall be obliged to repair and re-fixture to a standard at least
equivalent to that which existed prior to the date of damage and
destruction, the proceeds of insurance being carried by Tenant in respect
to its property and improvements to be held in trust jointly by Landlord
and Tenant for the purpose of said repair and replacement.
SECTION XX NON-RESPONSIBILITY OF LANDLORD
20.01 The Landlord shall not be liable for any damage, loss, injury or
destruction arising in or upon the Land, Building or Premises to any
property or person nor for any personal injuries sustained by the Tenant,
its officers, servants, employees, agents, invitees or licensees, which
may result at any time from any reason or cause whatsoever, including,
without limitation, the manufacturing, transportation, transfer, storage
or disposal of any Hazardous Substance by the Tenant or any other
occupant of the Premises (or any of their respective customers,
suppliers, employees, agents, or other invitees) on or in any part of the
Building, Land or Premises, the Tenant hereby covenanting to indemnify
the Landlord of and from all loss, costs, claims or demands in respect of
such damage, loss, injury or destruction. Without limiting the generality
of the foregoing, the Landlord shall not under any circumstances be
liable for any damage resulting from water, steam, rain or snow which may
leak into, issue or flow from the pipes or plumbing or sprinklers or from
any other part of the Building or from any other place or quarter. No
event or occurrence herein contemplated shall be deemed an eviction or
disturbance of the Tenant's enjoyment of the Premises nor render the
Landlord liable in damages to the Tenant nor entitle the Tenant to claim
any diminution in Net Rent or in any other amount payable hereunder.
20.02 The Landlord shall not be liable for failure to perform any of its
obligations hereunder nor be responsible for any damage resulting from
(i) delays in the construction and/or finishing of the Premises and/or
the interruption or modification of any service or facility provided in
the Building caused or required by strikes, riots, labour controversies,
accidents, fault or delays caused by Tenant or third parties, fuel
shortages, Acts of God or of the Queen's enemies, fire or other casualty,
force majeure, cas fortuit, or (ii) any other cause beyond the Landlord's
reasonable control and Landlord shall not be responsible for any acts or
omissions of any other tenants or occupants of the Building or other
third parties. No such occurrence or event shall be deemed an eviction or
disturbance of the Tenant's enjoyment of the Premises nor render the
Landlord liable in damages so the Tenant nor entitle the Tenant so claim
any diminution in Net Rent or other amounts payable hereunder, bus in any
such event the Landlord shall without delay take all reasonable steps so
remove the cause of such interruption.
20.03 Without limiting the generality of the foregoing, the Landlord shall not
be liable for any damage of any kind or nature to the Premises or to any
goods, merchandise, stock-in-trade, assets fixtures, furniture,
accessories or equipment belonging to the Tenant or to the Tenant's
officers, servants, employees, agents, invitees or licensees resulting
Page 19
from robbery, burglary, theft or acts of violence of any kind, and the
Tenant will hold the Landlord free, clear and harmless from any liability
or loss resulting therefrom.
SECTION XXI INSURANCE
21.01 Throughout the Term and any renewal thereof, Tenant shall take out and
keep in force:
(a) comprehensive general liability insurance (including blanket
contractual liability coverage) with respect to the business
carried on in or from the Premises and the use and occupancy
thereof for bodily injury and death and damage to property of
others in an amount of at least five million dollars
($5,000,000.00) (indexed annually based upon increases in the Cost
of Living Index - All Items - Canada as determined by Statistics
Canada or its successors) for each occurrence or such greater
amount as Landlord may from time to time reasonably require;
(b) all-risks insurance including the perils of fire, extended
coverage, leakage from sprinkler and other fire protective
devices, earthquake, collapse and flood in respect to furniture,
equipment, inventory and stock-in-trade, fixtures, (plate glass if
appropriate) and leasehold improvements located within the
Premises and such other property located in or forming part of the
Premises, including all mechanical or electrical systems (or
portions thereof) installed by Tenant in the Premises, the whole
for the full replacement cost (without depreciation) in each such
instance;
(c) business interruption insurance in an amount equal to at least one
(1) year's Net Rent, Tenants Proportionate Share of Real Estate
Taxes, Operating Expenses and Tax on Capital or such greater
amount as Landlord may from time to time reasonably require;
(d) tenants' legal liability insurance in an amount equal to the
replacement cost of the Premises or such greater amount as
Landlord may from time to time reasonably require; and
(e) such additional insurance as Landlord, acting reasonably, may from
time to time require.
21.02 All policies of insurance shall (i) be in form satisfactory to Landlord,
(ii) be placed with insurers acceptable to Landlord, (iii) provide that
they will not be cancelled or permitted to lapse unless the insurer
notifies Landlord in writing at least thirty (30) days prior to the date
of cancellation or lapse, and (iv) be primary and not excess or
contributing with any other insurance available to the Landlord or others
insured thereunder. Each such policy shall name Landlord and any other
party required by Landlord, including but not limited to its property
manager as an additional insured(s) as its (or their) interest(s) may
appear. Each liability policy will contain a provision of cross-liability
and severability of interests as between Landlord and Tenant. All other
policies referred to above shall contain a waiver of subrogation rights
which Tenant's insurers
Page 20
may have against Landlord, Landlord's insurers and persons under
Landlord's care and control. Notwithstanding anything contained in this
Lease to the contrary, Tenant hereby releases and waives any and all
claims against Landlord and those for whom Landlord is in law responsible
with respect to occurrences which are or which are required to be insured
against by Tenant hereunder. Tenant shall from time to time and if so
requested by the Landlord, furnish Landlord with certified copies of all
such insurance policies and the renewals thereof.
21.03 Should Tenant fail to take out or keep in force such insurance, Landlord
will have the right to do so and to pay the premiums therefor and in such
event Tenant shall repay to Landlord the amount paid as premiums as
additional rent on demand.
SECTION XXII DEFAULT
22.01 In any of the events following, namely:
(a) if the Tenant shall fail to pay the Landlord any installment of
Net Rent or any additional rent after it shall have become due and
payable as herein provided;
(b) if the Tenant shall be declared dissolved, bankrupt or wound-up or
shall make any general assignment for the benefit of its creditors
or take or attempt to take the benefit of any insolvency,
winding-up or bankruptcy legislation or if a petition in
bankruptcy or in winding-up or for reorganization shall be filed
by or granted against the Tenant or if a receiver or trustee be
appointed for or enter into physical possession of the property of
the Tenant, or any part thereof;
(c) if the Tenant shall assign, sublet or permit the use of the
Premises by others except in a manner herein permitted;
(d) if any seizure is practiced against the property of the Tenant in
the Premises;
(e) if the Tenant shall fail to take possession of the Premises or if
the Tenant should vacate or abandon the Premises;
(f) if any insurance carried by the Landlord be cancelled in
consequence of the business carried on by the Tenant or in
consequence of anything brought into or stored in the Premises by
the Tenant;
(g) if the Tenant shall default in the performance of any of its other
obligations under this Lease including, without limitation, the
obligation to pay business and water taxes in a timely manner, or
fail to effect any payment that may result in a charge, lien,
encumbrance or other right on the Land, Building or Premises or
the property located therein or shall violate any of the rules and
regulations hereinafter set forth or hereafter to be established
by the Landlord and such default continues for five (5) days
following receipt of written notice thereof; this Lease may be
terminated ipso facto at the option of the Landlord upon written
notice to the Tenant to such effect. It is expressly agreed that
such right
Page 21
of termination shall be in addition and without prejudice to all
other rights as provided by law or herein, the Landlord may
re-enter and re-let the Premises to whomsoever it may choose
without further notice or demand being necessary and may recover
from the Tenant all amounts due hereunder at the date of such
termination, expenses of such re-letting (including any repairs,
decorating, alterations or improvements necessitated thereby) and
rental for the six (6) months next succeeding the date of such
termination or such longer period as maybe allowed by law, all of
which shall immediately become due and payable. Thereafter the
Tenant shall pay to the Landlord, as liquidated damages until the
end of the Term, an amount equivalent to the rental provided in
the Lease, less the sum of the net receipts (if any) derived by
the Landlord from the re-letting of the Premises. As used herein,
the expression "rental" shall mean the Net Rent, Tenant's
Proportionate Share of Real Estate Taxes, Operating Expenses and
Tax on Capital and all other additional rents payable hereunder.
Any sums received by the Landlord from or for the account of the
Tenant when the Tenant is in default hereunder may be applied, at
the Landlord's option, to the satisfaction in whole or in part of
any obligation of the Tenant then due hereunder in such manner as
the Landlord sees fit and regardless of any imputation by law or
any designation or instruction of the Tenant to the contrary.
SECTION XXIII RELOCATION AND MODIFICATION
23.01 The Landlord shall have the right at any time and from time to time
(including prior to the Commencement Date) to relocate the Tenant to
other premises in the Building at Landlord's cost (if any) provided that
the new location is similar in dimension and the Net Rent remains
unchanged. The relocation shall not affect any of the other clauses or
conditions of this Lease. The Tenant waives and renounces to any and all
claims as a consequence of any action as contemplated hereunder.
23.02 Notwithstanding any provision of this Lease or any Schedule appended
hereto to the contrary, the Landlord reserves the right at any time and
from time to time to change, alter, modify or expand the Building as the
Landlord in its sole and entire discretion deems expedient, same to
include, without limitation, the right of the Landlord to add additional
floors to the Building, to expand the length or width of the Building,
and/or to change, alter and amend the location, dimensions or
specifications of the pipes, wires, ducts, conduits, utilities,
mechanical systems, common areas and other Building services (including
such as may be contained in the Premises) and the right to block light or
views. The Tenant waives and renounces to any and all claims as a
consequence of the foregoing providing the physical dimensions of the
Premises remain substantially as contemplated herein. No action on the
part of Landlord hereunder shall constitute an eviction hereunder or a
change in the form of destination of the Premises or any diminution of
the peaceable enjoyment by the Tenant. In the event any such change
results in additional land being utilized to service the Building, such
additional land shall be deemed included in the definition of "Land" for
all purposes.
Page 22
In the event any change contemplated herein results in a change in the
rentable area of the Building, the Tenant's Proportionate Share shall be
modified accordingly.
23.03 The Landlord reserves the right to construct other buildings, structures
or improvements on the Land and to make such alterations and/or
improvements to the Building and create such servitudes and other rights
as may be necessary or desirable in order to permit any new structure or
structures to be connected to the Building.
23.04 Should Landlord elect or be obliged to establish for the benefit and use
of the tenants and their employees additional common areas or facilities
including without limitation, a conference center or a day care center,
in the Building, Tenant acknowledges that the net rentable area of the
Premises shall at such time or times be deemed to be increased to include
Tenant's Proportionate Share of the area of said additional common areas
or facilities for purposes of calculating Net Rent, Tenant's contribution
to Real Estate Taxes, Operating Expenses, Tax on Capital and other
additional rent owing hereunder.
In the event the said additional common areas or facilities are
established, Tenant shall have the right of use thereof in common
with other tenants of the Building, such use to be governed by
such rules and regulations as may from time to time be established
by Landlord. Landlord reserves the right at any time to
discontinue the existence of said additional common areas or
facilities in which event the net rentable area of the Premises
shall be deemed to be decreased to exclude therefrom Tenant's
Proportionate Share of the area thereof for purposes of
calculating Net Rent, Tenant's contribution to Real Estate Taxes,
Operating Expenses, Tax on Capital and other additional rents
owing hereunder.
SECTION XXIV ADDITIONAL PROVISIONS
24.01 (a) Landlord: In the event of any sale or lease of the Building, the
Landlord shall be and hereby is entirely released and relieved
from all covenants and obligations of the Landlord hereunder,
provided such purchaser or lessee agrees to assume and carry out
any and all such covenants and obligations.
(b) Amendment of Lease: No assent or consent to changes in or waiver
of any part of this Lease shall be deemed or taken as made unless
the same be done in writing and attached to or endorsed hereon by
Landlord and Tenant. No covenant or term of the present Lease
stipulated in favour of the Landlord or Tenant shall be waived,
except by express written consent of the other, whose forbearance
or indulgence in any regard whatsoever shall not constitute a
waiver of the covenant, term or condition to be performed; and
until complete performance of the said covenant, term or
condition, the creditor thereof shall be entitled to invoke any
remedies available under this Lease or by law despite such
forbearance or indulgence.
(c) Late Payments: The acceptance by the Landlord of any postdated
cheque or money owing for Net Rent or additional rent after its
due date is to be
Page 23
considered as a mode of collection only, without novation of, nor
derogation from, any of Landlord's rights, recourses and actions
in virtue of this Lease which demands punctual payment of all
obligations.
All sums owing by Tenant under this Lease not paid when due shall
thereafter bear interest at a rate equivalent to five percent (5%)
per annum above the prime lending rate of The Bank of Nova Scotia
from time to time in effect
(d) Tenant: All the covenants herein contained shall be deemed to have
been made by and with the heirs, executors, administrators and
permitted assigns or successors of each of the parties hereto, and
if more than one Tenant, the covenants herein contained on the
part of the Tenant shall be construed as being several as well as
joint and where necessary reference to the Tenant as being of the
masculine gender or in the singular number shall be construed as
being in the feminine or neuter gender or in the plural number.
(e) Brokerage Commission: As part of the consideration for the
granting of this Lease, the Tenant represents and warrants that no
broker, agent or other intermediary introduced the parties or
negotiated or was instrumental in negotiating or consummating this
Lease other than the Real Estate Broker, if any, named in Section
1.01 hereof.
(f) Notices and Demands: Subsequent to the Commencement Date, any
notice or demand given by the Landlord to the Tenant shall be
deemed to be duly given when served upon, mailed or faxed
(provided such fax was confirmed by telephone) to the Tenant at
the address of the Premises. The Tenant elects domicile at the
Premises for the purpose of service of all notices, writs of
summons or other legal documents in any suit at law, action or
proceeding which the Landlord may take under or in connection with
this Lease.
(g) Registration of Lease: Tenant shall not register this Lease at
length but only by memorial and then only after the form and terms
of such memorial have been approved by the Landlord or its legal
counsel, the whole as the cost of the Tenant, including the cost
of registration and a copy for the Landlord. Should this Lease be
registered, the Tenant shall, at the termination thereof, cause
same to be radiated at its expense, failing which the Landlord
will have the right to cause such radiation and charge the Tenant
with the cost of same.
(h) Additional Net Rent: In addition to Net Rent, all other monies
payable pursuant to this Lease, as well as all sales, business
transfer, goods and services and value added taxes, rates and
duties or similar taxes, rates and duties which may at any time
hereafter be imposed upon or by reference so the Net Rent and
other sums owing by Tenant hereunder shall be payable by Tenant to
Landlord immediately when due without reduction, deduction or
compensation whatsoever and shall be additional rent and
collectible as such.
Page 24
(i) Overloading - No Tacit Renewal: Should the Tenant remain in
occupation of the Premises after the expiration of this Lease
without having executed a new written lease or exercised its
renewal with the Landlord, such holding over shall not constitute
a renewal or extension of this Lease. In such event, the Landlord
may, at its option, elect to treat the Tenant as one who has not
removed at the end of the Term and the Landlord shall be entitled
to all remedies against the Tenant provided by law in that
situation, or the Landlord may elect, at its option, to construe
such holding over as a tenancy from month to month subject to all
the terms and conditions of this Lease save as to its duration and
save that the Net Rent payable pursuant to Section IV hereof shall
be three (3) times the Net Rent payable in the preceding year.
(j) Prior Agreements: The present Lease cancels and supersedes all
prior leases and agreements, written or otherwise, entered into by
the Landlord and the Tenant regarding the Premises leased
hereunder. This Lease and such rules and regulations as may be
adopted and promulgated by the Landlord from time to time
constitute the entire agreement between the parties.
(k) Rights Cumulative: No right or remedy herein conferred upon or
reserved to the Landlord is intended to be exclusive of any other
right or remedy herein or by law provided, but such rights shall
be cumulative and in addition to every other right or remedy
herein or by law provided.
(l) Performance by the Landlord: If the Tenant fails to pay any sum to
any third party or perform any other obligation under this Lease,
the Landlord may, without notice to any person, pay the said sum
or perform the said obligation in the place and instead of the
Tenant who shall be thereupon obliged to repay the said sum and/or
reimburse and costs incurred by the Landlord in performing such
obligation, together with a fee equal to twenty percent (20%) of
the amount paid or the costs occurred, as the case may be, the
whole without prejudice to any other rights or recourses of the
Landlord which may accrue in the circumstances.
(m) Severability: If any clause or provision herein contained shall be
adjudged invalid, the same shall not affect the validity of any
other clause or provision of this Lease, or constitute any other
cause of action in favour of either party against the other.
(n) Legal Costs: The Tenant will pay all costs of the Landlord,
including reasonable legal fees on a solicitor and own client
basis, incurred in collecting any money payable by the Tenant to
the Landlord hereunder, enforcing performance of the Tenant
covenants hereunder, doing anything which the Tenant has agreed to
do hereunder but has not done and in exercise of any right or
remedy of the Landlord hereunder or at law, any monies so payable
to the Landlord shall be paid by the Tenant to the Landlord
forthwith on demand.
Page 25
(o) Governing Law: This agreement shall be construed and interpreted
in accordance with the laws of the Province of British Columbia.
(p) Captions: The captions appearing 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 thereof.
(q) Non Recourse: Any obligation or liability that the Landlord may
have pursuant to this Lease shall not be binding upon and resort
shall not be had to, nor shall recourse or satisfaction be sought
from, by the Tenant, its executors, administrators or assigns, the
private property of the Landlord.
SECTION XXV RULES AND REGULATIONS
25.01 The rules and regulations respecting the Land and Building which are more
fully set forth in Schedule "D" hereto shall, during the Term, be
observed and performed by the Tenant, its officers, servants, employees,
agents, invitees and licensees, and the Landlord shall have the right to
make reasonable alterations and additions to such rules and regulations
and to make such other and further reasonable rules and regulations as in
its judgment may from time to time be required for the safety, care and
cleanliness of the Building including the Premises, and for the
preservation of good order therein, and the same shall be observed and
performed by the Tenant, its officers, servants, employees, agents,
invitees and licensees. The Landlord may waive any one or more of these
rules and regulations for the benefit of any particular tenant or
tenants, but no such waiver by the Landlord shall be construed as a
waiver of the rules and regulations in favour of any other tenant or
tenants nor prevent the Landlord from thereafter enforcing any rules and
regulations against all or any of the tenants in the Building. The
Landlord agrees to notify the Tenant in writing of any changes in the
rules and regulations.
SECTION XXVI MORTGAGES AND SUBORDINATION
26.01 This Lease and all rights of Tenant hereunder shall be subject and
subordinate at all times to any and all underlying leases, mortgages,
deeds of truss or other security interests affecting the Building and/or
the Land which have been executed or which may at any time hereafter be
executed, and any and all extensions and renewals thereof and
substitutions therefor. Tenant agrees to execute any instrument or
instruments which Landlord may deem necessary or desirable to evidence
the subordination of this Lease or to cede priority of its registration
to any or all such underlying leases, mortgages, deeds of trust or other
security interests.
26.02 Tenant covenants and agrees that if by reason of default by Landlord as
lessee under any underlying lease in the performance of any of the terms
or provisions of such underlying lease or by reason of a default under
any mortgage or deed of trust to which this Lease is subject or
subordinate and Landlord's title is terminated, it will attorn to the
lessor under such underlying lease or the acquirer of the Building
pursuant to any
Page 26
action taken under any such mortgage, deed of truss and Tenant will
recognize such lessor or such acquirer as Tenant's lessor under this
Lease.
26.03 Tenant waives the provisions of any statute or rule of law now or
hereafter in effect which may give or purport so give the Tenant any
right of election to terminate this Lease or to surrender possession of
the Premises in the event any such proceeding so terminate the underlying
lease is brought by the lessor under any such underlying lease or any
such action is taken under any such mortgage, deed of trust and agrees
that this Lease shall not be affected in any way whatsoever by any such
proceedings.
26.04 Tenant agrees to execute and deliver, at any time and from time to time
upon the request of Landlord or of the lessor under any such underlying
lease, or of the holder of any such mortgage or deed of trust, any
instrument which may be necessary or appropriate to evidence such
attornment.
26.05 Tenant will upon request of Landlord furnish to the lessor under any
underlying lease and/or to each creditor under a mortgage, deed of trust
and/or to an actual or prospective purchaser, or land lessee of
Landlord's rights in and to the Land and/or Building and/or underlying
lease a written statement that this Lease is in full force and effect and
that the Landlord has complied with all its obligations under this Lease
(or state those with which is has not complied) and any other reasonable
written statement, document or essoppel certificate requested by any such
lessor, creditor, purchaser or lessee.
SECTION XXVII SCHEDULES
27.01 The Schedules are included in and form an integral part of this Lease.
SECTION XXVIII SPECIAL CLAUSES
28.01 The Tenant authorizes the Landlord to withdraw Monthly Rent payments from
the Tenant's account by way of direct withdrawals, as may be arranged
from time to time between financial institutions administering the
Tenant's and the Landlord's accounts. The Tenant further agrees to
execute and provide whatever further documentation, account information,
cancelled cheques or otherwise, which are reasonably requested by the
Landlord in order to assist the Landlord in the administration of a
pre-authorized payment procedure for monies owing or accruing due as
Monthly Rent under this Lease. For the purposes of this Section 28.01,
Monthly Rent means monthly amounts of Net Rent, Operating Expenses, Real
Estate Taxes and Tax on Capital payable by the Tenant pursuant to this
Lease.
28.02 The Landlord acknowledges receipt of a further deposit of $23,687.13 (the
"Advance Rental Deposit"), which will be held by the Landlord in an
interest-bearing account to be applied by the Landlord toward the Monthly
Rent (as defined in Section 28.01) payable by the Tenant hereunder for
the final five (5)
Page 27
months of the Term, namely the months of January through May (inclusive),
2003. Notwithstanding that such Advance Rental Deposit is to be applied
by the Landlord to the Monthly Rent during the final five (5) months of
the Term as aforesaid, in the event that the Tenant is able to satisfy
the Landlord, in the Landlord's sole discretion, as to the Tenant's
financial strength and covenant prior to the final five (5) months of the
Term, then the Landlord may, at the Landlord's option, apply some or all
of the Advance Rental Deposit to the Monthly Rent due and payable
hereunder for such other months of the Term as the Landlord so elects.
Notwithstanding anything to the contrary herein, if at any time during
the Lease any sum owing by the Tenant hereunder or under the Lease is not
paid when due, the Landlord may appropriate and apply all or such part of
the Advance Rental Deposit as is necessary to compensate the Landlord for
the amount then owing by the Tenant, plus reasonable expenses incurred in
connection therewith, and in such event the Tenant shall remit to the
Landlord a sum sufficient to restore the Advance Rental Deposit to the
original amount deposited within five (5) days of the Landlord's written
demand thereof, the whole without prejudice to such other rights,
remedies and recourses as available to the Landlord as a consequence of
the Tenant's default.
28.03 Provided the Tenant is not in default, the Landlord shall provide the
Tenant with an improvement allowance which shall be solely applied to
fixturing and modifying the Premises in the amount of $15.00 per square
foot of rentable area of the Premises, or $30,360.00, plus goods and
services tax (the "Allowance"). Such Allowance shall be payable after
provision of satisfactory evidence of payment of all of the Tenant's
contractors in full by the Tenant including but not limited to a
statutory declaration that all fees and payments resulting from the
modification and fixturing of the Premises have been made and provided
this Lease has been fully executed and the Tenant has fully occupied the
Premises and commenced business operations therein.
All modifications to the Premises are to the Tenant's account and
are subject to the Landlord's prior written approval and shall he
made in accordance with the 0000 Xxxx Xxxxxx Xxxxxx Tenant
Guidelines, It is understood that the Landlord's contractor shall
be utilized for all changes to the mechanical, electrical and life
safety systems. All design and consultants' fees and permits are
to the Tenant's account.
28.04 Throughout the Term, the Landlord shall make available for the Tenant, to
use at its option, two (2) reserved parking stalls in the designated
parking lot for the Building in which the Premises are located at the
prevailing monthly rental rate, which rental rate may be adjusted by the
Landlord from time to time.
Page 28
IN WITNESS WHEREOF, the parties have signed these presents at the place first
hereinabove mentioned.
1862 HOLDINGS LTD.
/s/ 1862 HOLDINGS LTD.
----------------------------------------
Authorized Signatory
/s/ 1862 HOLDINGS LTD.
----------------------------------------
Authorized Signatory
THE CORPORATE SEAL of
XXXXXXXXXX.XXX INC.
was hereunto affixed in the presence of:
/s/ Xxx Xxxxxx
----------------------------------------
Authorized Signatory
/s/ Riz Xxxxxxx
----------------------------------------
Authorized Signatory
Page 29
SCHEDULE "A"
LAND DESCRIPTION FOR
1130 WEST XXXXXX
"Land" means those certain parcels or tracts of land situate lying in the City
of Vancouver, Province of British Columbia and more particularly described as:
Parcel Identifier: 000-000-000
Xxx 0, Xxxxxx Xxxx xx Xxxx 00000,
Xxxxx 16 District Xxx 000 Xxxx 00
Xxxxxx Xxxxxxxxxx: 000-000-000
Lot 4, Except Part in Plan 17436,
Xxxxx 00 Xxxxxxxx Xxx 000 Xxxx 00
Xxxxxx Identifier: 000-000-000
Xxx 00 Xxxxx 00 Xxxxxxxx Xxx 000 Xxxx 00
Xxxxxx Identifier: 000-000-000
Xxx 00 Xxxxx 00 Xxxxxxxx Xxx 185 Plan 92
SCHEDULE "C"
LANDLORD'S WORK
The Premises shall be provided on an "as is" basis. The Tenant acknowledges and
agrees that the Landlord has no responsibility or liability for making any
renovations, alterations or improvements in or to the Premises.
SCHEDULE "D"
RULES AND REGULATIONS
The Tenant shall observe the following Rules and Regulations (as amended,
modified or supplemented from time to time by the Landlord as provided in the
Lease):
1. The Tenant shall not use or permit the use of the Premises in such manner
as to create any objectionable noise, odours or other nuisance or hazard,
or breach any applicable thereto or any requirement of the Landlord's
insurers, shall not permit the Premises to be used for cooking (except
with the Landlord's prior written consent) or for sleeping, shall keep
the Premises tidy and free from rubbish, shall deposit rubbish in
receptacles which are either designated or clearly intended for waste and
shall leave the Premises at the end of each business day in condition
such as to facilitate the performance of the Landlord's janitor services
in the Premises.
2. The Tenant shall not abuse, misuse or damage the Premises or any of the
improvements or facilities therein, and in particular shall not deposit
rubbish in any plumbing apparatus or use it for other than purposes for
which it is intended, and shall not deface or xxxx any walls or other
parts of the Premises.
3. The Tenant shall not perform, patronize or (to the extent under its
control) permit any canvassing, soliciting or peddling in the Building,
shall not install in the Premises any machines vending or dispensing
refreshments or merchandise and shall not permit food or beverages to be
brought to the Premises except by such means, at such time by such
persons as have been authorized by the Landlord.
4. The entrances, lobbies, elevators, staircases and other facilities of the
Building are for use only for access to the Premises and other parts of
the Building and the Tenant shall not obstruct or misuse such facilities
or permit them to be obstructed or misused by its agents, employees,
invites or other under its control.
5. No safe or heavy office equipment shall be moved by or for the Tenant
unless the consent of the Landlord is first obtained and unless all due
care is taken. Such equipment shall be moved upon the appropriate
steelbearing plates, skids or platforms and subject to the Landlord's
direction, and at such times, by such means and by such persons as the
Landlord shall have approved. No furniture, freight or bulky matter of
any description shall be moved in or out of the Premises or carried in
the elevators except during such hours as the Landlord shall have
approved. Hand trucks and similar appliances shall be equipped with
rubber tires and other safeguards approved by the Landlord, and shall be
used only by prior arrangement with the Landlord.
6. The Tenant shall permit and facilitate the entry of the Landlord, or
those designated by it, into the Premises for the purpose of inspection,
repair, window cleaning and the performance of other janitor services,
and shall not permit access to main header ducts, janitor and electrical
closets and other necessary means of access to mechanical, electrical and
other facilities to be obstructed by the placement of furniture or
otherwise. The Tenant shall not place any additional locks or other
security devices upon any doors of the Premises without the prior written
approval of the Landlord and subject to any conditions imposed by the
Landlord for the maintenance of necessary access.
7. The Landlord may require that all or any persons entering and leaving the
Building at any time other than between the hours of 8:00 a.m. and 5:30
p.m. Monday to Friday, inclusive, of each week satisfactorily identify
themselves and register in the books kept for the purpose and may prevent
any person from entering the Premises unless provided with a key thereto
and a pass or other authorization from the Tenant in a form satisfactory
to the Landlord and may prevent any person removing any goods therefrom
without written authorization.
8. The Tenant shall refer to the Building only by the name from time to time
designated by the Landlord for it and shall use such name only for the
business address of the Premises and not for any promotion or other
purpose.
9. The Tenant shall not interfere with window coverings installed upon
exterior windows, and shall close or (if such window coverings are
remotely controlled) permit to be closed such window covering during such
hours from dusk to xxxx as the Landlord may require, and shall not
install or operate any interior drapes installed by the Tenant so as to
interfere with the exterior appearance of the Building.
SCHEDULE "E"
MINIMUM STANDARDS FOR TENANT FINISHES
_____ made in accordance with the 0000 Xxxx Xxxxxx Xxxxxx Tenant Guidelines
