THIS LEASE is made the 18th day of June, 2002 and entered into by the Landlord
and Tenant named herein who, in consideration of the rents and covenants herein
contained, covenant and agree as follows:
ARTICLE 1
BASIC TERMS, SPECIFIC PROVISIONS and DEFINITIONS
1.01 Basic Terms. The basic terms of this Lease are:
(a) (i) Landlord: TONKO REALTY ADVISORS (B.C.) LTD.
as Agent of the Owners
(ii) Address of Landlord: 000 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Telefax: (000) 000-0000
(b) (i) Tenant (legal name): INFOWAVE SOFTWARE, INC.
(ii) Address of Tenant: 000 - 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, X.X. X0X 0X0
Telefax: (000) 000-0000
(c) Leased Premises: Xxxxx 000, 0000 Xxxxxxxx Xxxxxxx, Xxxxxxx, X.X.
(d) Rentable Area of Leased 12,416 square feet of premises designated
Premises: for office use, subject to Section 15.05.
(e) Initial Term: Six (6) years commencing on the Commencement
Date.
(f) Commencement Date: July 1, 2002
(g) Basic Rent: Lease Year Per Sq. Ft. Per Annum Per Month
Per Annum
---------- ----------- --------- ---------
1-6 $14.00 $173,824.00 $14,485.33
(h) Permitted Business: General office use for the conduct of the
Tenant's business and for no other purpose.
(i) Operating Name of Infowave Software, Inc.
Business:
(j) Security Deposit: $26,538.42
(k) Renewal Term: Three (3) years.
(l) Allowed Number of One (1) vehicle per 400 sq. ft. of Rentable Area
Vehicles: divided as follows: Twenty-nine (29) reserved
stalls in the secured parkade and two(2) surface
parking stalls in front of the Building,
reserved exclusively for the Tenant between
6:30am and 5:30pm, Monday to Friday, and
random at all other times (if the Tenant is
already parked in the stall(s) before 5:30pm
they not have to relocate the car(s));
however, the Landlord reserves the right to
relocate the two (2) surface parking stalls
in front of the Building to the parkade at
any time during the Term or any renewal thereof.
If available, and if requested by the Tenant,
additional parking rights shall be provided on
a month to month basis, subject to termination
with thirty (30) days' written notice by either
party.
(m) Parking Rates: Lease Year Per Month and Per Vehicle
---------- --------------------------
1 $40.00 (fixed)
2-6 Prevailing market rates
The Landlord and Tenant agree to the foregoing basic terms. Each reference in
this Lease to any of the Basic Terms shall be construed to include the
provisions set forth above as well as all of the additional terms and conditions
of the applicable Sections of this Lease where such Basic Terms are more fully
set forth.
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1.02 Specific Provisions. The following provisions (the "Specific Provisions")
have been agreed upon by the Tenant and the Landlord to add to or modify the
standard provisions of the Lease which are those contained in ARTICLES 2 to 16
of this Lease (the "Standard Provisions"). In case of discrepancy, the Specific
Provisions will prevail over the Standard Provisions.
(A) Exclusivity. As long as Canon Canada Inc. ("Canon") or a subsidiary or
affiliate of Canon is a tenant of the Building, the Tenant shall not assign
the Lease or sub-lease all or part of the Leased Premises to any competitor
of Canon or of Canon's affiliates or subsidiaries and the Tenant shall not
conduct any business in the Leased Premises that would cause the Tenant to
become or to be perceived as a competitor of Canon or of Canon's affiliates
or subsidiaries. For the purpose of this Lease a competitor of Canon or of
Canon's affiliates or subsidiaries is a major supplier, distributor, dealer
or manufacturer of cameras and lenses and/or business machines (such as
copying and telecopying machines, scanners and printers) of the kind of
Ikon, Xerox, Sony and Nikon in 1999. For clarification, suppliers of
products and/or services that sell also small amounts, as compared to their
total sales, of cameras and lenses or business machines are not deemed to
be competitors of Canon or of Canon's affiliates or subsidiaries (for
example a marine or outdoor equipment supplier which sells also waterproof
binoculars and cameras).
(B) Landlord's Option to Terminate. The Landlord shall be entitled to terminate
this Lease and all of the Tenant's other leases of premises in the Building
(but not less than all of the Tenant's leases) upon one hundred eighty
(180) days' prior written notice to the Tenant and upon payment to the
Tenant of a termination fee equal to three (3) months of Basic Rent (as
defined in each of the Tenant's leases) as full compensation for all costs,
damages, nuisance and discomfort which the Tenant my incur or suffer.
(C) Financial Reporting By Tenant. Subject to the execution by the Landlord of
a Non-Disclosure Agreement, the Tenant shall provide monthly financial
statements to the Landlord until positive Cash Flow has been achieved for
two consecutive quarters.
(D) Landlord and Tenant Work. The Landlord shall construct, at its cost, the
new corridor required to achieve the configuration outlined in Schedule "A"
attached hereto, including the work required to separate the HVAC,
sprinkler and electrical systems. The Tenant will construct, at its cost,
any work required in the Leased Premises, including any new entry and exit
building standard doors from the new corridor that may be required and
including, but not limited to, if required, modifications to the
distribution of the HVAC, sprinkler and electrical systems. All of the
foregoing works shall be completed during the month of June 2002.
(E) Tenant's Option to Surrender. The Tenant shall be entitled to partially
surrender this Lease, without penalty, with respect to a maximum of 3,000
square feet of Rentable Area located at the south-east corner of the Leased
Premises, under the following circumstances:
o a replacement tenant is willing to enter into a lease with the
Landlord for the surrendered premises at conditions that the Landlord,
acting reasonably, considers "at market"; and
o the replacement tenant offers, in the reasonable opinion of the
Landlord, an adequate covenant; and
o the demising of the Leased Premises required to accommodate the
replacement tenant is, in the sole opinion of the Landlord, rational
both for the premises being demised out and for the remaining Leased
Premises; and
o the proposed lease term is at least three (3) years unless the
replacement tenant is Styrdent Software Inc.
(F) Roof Access. The Tenant shall, throughout the Term of the Lease, have
access to the roof for the installation of antennas and dishes, at the
Tenant's cost.
(G) Non-Disturbance. The Landlord will use all reasonable efforts not to
disturb the Tenant with any future renovations or alterations to the
Building.
(H) Communications Equipment. The Tenant shall be responsible for the
installation and maintenance of its telephones, computers, and special
communications equipment.
(I) Subsection (b) of the definition of "Operating Costs", in Section 1.03, is
hereby amended as follows:
(b) shall exclude taxes, debt service, depreciation, [expenses properly
chargeable to capital account (except capital expenditures that are made by
the Landlord to reduce Operating Costs), - added text] costs of repairing
structural defects in the Building and the cost of acquiring new tenants
for the Building [(for clarification, the Landlord will not amortize the
1999-2000 rehabilitation project of the building but will capitalize it;
that is, the Landlord shall not be entitled to any refund by the Tenant) -
added text]; and
(J) The two definitions of "Rentable Area" in Section 1.03 are hereby deleted
in their entirety and replaced with the following definition:
"Rentable Area" in the case of the Leased Premises means the area thereof
expressed in square feet as certified by the Landlord's architect, engineer
or surveyor in accordance with BOMA Standard (ANSI/BOMA Z65.1-1996).
(K) Section 4.05 "Taxes" is hereby amended as follows:
4.05 Taxes. [To pay as additional rent to the Landlord the Tenant's
Proportionate Share of any Taxes within 10 days of receipt of notice
from the Landlord. - deleted text] If Taxes are not imposed separately
on the portion of the Building designated for warehouse use and the
portion designated for office use by the taxing authorities, the
Landlord, acting reasonably, shall allocate Taxes for the Land and
Building to the portion of the Building designated for warehouse use
and the portion of the Building designated for office use and the
Tenant shall pay its Proportionate Share of such allocated amounts
depending upon whether the Leased Premises are designated for office
or warehouse use. [Provided however that - deleted text] The Landlord
[will - added text] [may - deleted text] estimate in advance at the
beginning of each and any Accounting Year of the Term or portion
thereof, the annual amount of the Tenant's Proportionate Share of
Taxes and request that the Tenant
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pay and the Tenant shall pay as additional rent 1/12th of such
estimated sum monthly in advance concurrently with the payments of
Basic Rent pursuant to Article 3 of this Lease. As soon as the actual
amount of the Taxes for the Accounting Year becomes known to the
Landlord and if the said amount exceeds or is less than the amount
estimated by the Landlord by 10% or more, the Landlord shall inform
the Tenant and the parties shall make all necessary corrective
adjustments immediately. If the difference between the actual amount
and the estimated amount of Taxes is less than 10%, the Tenant's
Proportionate Share of Taxes shall be adjusted according to Section
4.09.
(L) Section 4.08 "Other Costs" is hereby amended as follows:
4.08 Other Costs. To pay as additional rent to the Landlord:
a) its Proportionate Share of Operating Costs, by monthly
installments to be fixed by the Landlord from time to time;
and
b) the Costs of Additional Services (if any) upon demand by the
Landlord.
The Landlord, acting reasonably, shall allocate Operating Costs to
Operating Costs for premises designated for warehouse use and to
Operating Costs for premises designated for office use, and the Tenant
shall pay its Proportionate Share of such costs depending upon whether
the Leased Premises are designated for office or warehouse use.
If the Tenant's business hours are substantially longer than the
Normal Business Hours, the Tenant's Proportionate Share of Operating
Costs shall be adjusted to reflect the additional services, supplies
and maintenance required as a consequence of the longer business
hours.
[If the Tenant elects to operate substantially 24 hours per day, for
any significant amount of days per year, in order to reflect the
consequent increase of services, supplies and maintenance caused by
the Tenant's continuous operation and with reference to the Operating
Expense Accounts Schedule attached as Schedule "E" hereto, the
Tenant's Proportionate Share of:
o all accounts for repairs and maintenance ("R&M") (except
roof, snow removal and landscaping),
o 25% of all accounts for Wage and Other Recoveries,
o all accounts for Miscellaneous items,
o all accounts for Electricity, Gas and Water consumption and
o all accounts for Waste Removal
will be increased by a multiplier that at the commencement of the
Initial Term has been set by the Landlord and the Tenant at 120% based
on the assumption that the Tenant will operate 24 hours per day on 30
business days per year and will operate 10 hours per day on 30 weekend
days per year.
At any time during the duration of the Term, the Tenant or the
Landlord can require that the above described multiplier be reviewed.
In this case the Tenant and the Landlord shall negotiate a
modification of the multiplier such that the modified multiplier will
properly reflect the additional Operating Costs caused by the after
Normal Business Hours operations of the Tenant. If the Tenant and the
Landlord are unable to determine a multiplier that is acceptable to
both of them within one month from receipt of the notice from the
party requiring a review of the modifier, the determination of the
multiplier will be referred to a single arbitrator pursuant to the
provisions of the Commercial Arbitration Act of British Columbia. The
determination made by the arbitrator shall be final and binding upon
the Landlord and the Tenant, and their respective successors and
assigns. Each party shall pay one-half of the fees and expenses of the
arbitrator. The provisions of this Section shall be determined to be a
submission to arbitration within the provisions of the Commercial
Arbitration Act, as amended from time to time. - added text]
Wherever, in the Landlord's reasonable opinion, any cost or expense
included in Operating Costs properly relates only to a tenant or a
group of tenants of the Building, the Landlord may charge such cost or
expense directly to such tenant or group of tenants. Any cost or
expense charged by the Landlord to the Tenant under this section shall
be payable by the Tenant upon demand by the Landlord.
(M) Section 4.11 "Net Lease" is amended by adding at the beginning thereof, the
following:
Subject to Section 6.03,
(N) Section 4.23 "Inspection and Access" is hereby amended as follows:
4.23 Inspection and Access. To permit the Landlord and persons
authorized by the Landlord at any time, [subject to reasonable notice
from the Landlord when notice is appropriate under the circumstances,
- added text] to enter the Leased Premises for the purpose of
inspection, maintenance, providing janitor service and window
cleaning, making repairs, alterations or improvements to the Leased
Premises or the Building, or to have access to utilities and services
(including electrical and mechanical rooms and access panels, which
the Tenant agrees not to obstruct) or to determine the electric light
and power consumption by the Tenant in the Leased Premises. The Tenant
shall provide free and unhampered access for the purpose and shall not
be entitled to compensation for any inconvenience, nuisance or
discomfort, but the Landlord in exercising its rights hereunder shall
proceed to the extent reasonably possible so as to minimize
interference with the Tenant's use and enjoyment of the Leased
Premises.
(O) Section 4.24 "Showing Leased Premises" is amended by adding, after the
first sentence, the following:
The Landlord will keep these showings to a maximum of seven (7) visits
per week, each with 24 hours notice to the Tenant.
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(P) Section 4.25 "Access to the Building Outside Normal Business Hours" is
hereby amended as follows:
4.25 Access to the Building Outside Normal Business Hours. To comply
with all regulations set by the Landlord for accessing the Building
outside Normal Business Hours and to comply with all the required
procedures to operate the electronic security access system. [The
Landlord, in case of misuse of the electronic security access system
or of a breach of the terms of this Lease, including Rules and
Regulations, or of any behaviour which, at the sole discretion of the
Landlord, is determined to be unacceptable, by the Tenant or its
employees, invitees or others under its control, may limit or prohibit
access to the Building by the Tenant outside Normal Business Hours in
addition to assessing the Tenant for any damage in accordance to
Section 6.02(c). - deleted text] The Landlord will supply the Tenant
with the number of access cards reasonably required by the Tenant at
the commencement of the Initial Term, replacement cards and/or
additional cards as reasonably required by the Tenant from time to
time. The Landlord will levy a reasonable charge for all cards
supplied to the Tenant. The Tenant covenants with the Landlord to
promptly inform the Landlord if any of the Tenant's cards are lost or
stolen and to return all cards to the Landlord at the end of the Term.
(Q) Section 4.29 "Covenant to Operate" is hereby amended as follows:
4.29 Covenant to Operate. [The Tenant shall throughout the Term
continually operate, occupy and utilize the entire Leased Premises and
conduct its business in accordance with the provisions of this Lease.
The Tenant acknowledges that the Landlord is executing this Lease in
reliance upon this covenant and that it is a material element inducing
the Landlord to execute this Lease. - deleted text] [If - added text]
the Tenant shall operate and == conduct its business upon the whole of
the Premises[, then the Tenant shall do so - added text] in an
up-to-date, first class and reputable manner befitting the character
of the Building and shall act diligently and use all proper and
reasonable efforts consistent with good business practice. The Tenant
agrees not to make any material change in the nature or character of
the business carried on by the Tenant in or from the Leased Premises
or in the quality of goods and services offered by the Tenant in or
from the Leased Premises without the written consent of the Landlord[,
which consent shall not be unreasonably withheld. - added text]
(R) Section 4.30 "New Indemnity" is hereby deleted in its entirety.
(S) Sections 4.32 to 4.35, inclusive, are hereby amended as follows:
4.32 Compliance with Environmental Laws. To comply at its own expense
with all federal, provincial, regional district and municipal laws,
regulations, guidelines and bylaws relating to pollution, Hazardous
Substances or the protection of the environment with respect to the
occupation or use of the Leased Premises [and the - deleted text] [or
Tenant's - added text] use of the Common Areas. The Tenant shall take
all necessary precautions so as to ensure that the [Land, the
Building, the - deleted text] Leased Premises and [any areas
surrounding - deleted text] the Land [and the Building - added text]
do not and are not likely to have Hazardous Substances located thereon
or therein as a consequence of the occupation or use of the Leased
Premises by the Tenant or of the business carried on in the Leased
Premises or of any actions or failures to act by the Tenant its
employees, officers, directors, invitees or licensees. The Tenant
shall not at any time cause or allow any Hazardous Substances to be
generated, created, used, stored, treated, transferred, transported or
disposed of on the Land, the Building or the Leased Premises except in
compliance with all the laws, after obtaining the prior consent of the
Landlord and pursuant to the terms of this Lease. [The Landlord may
impose any conditions that it considers reasonably necessary
(including the requirement that monies be posted as security - deleted
text] [Subject to the foregoing, the Tenant may contract directly with
a waste management provider, including providing storing bins - added
text] for [the performance of the - deleted text] Tenant's
[obligations) to protect the Land, the Building and - deleted text]
[waste or recycling products within - added text] the Leased Premises
[or, subject to availability of space and the Landlord's approval of
location, size and nature of Tenant's waste or recycling products,
elsewhere on the Lands. - added text]
[4.33 Reports. To make, obtain and deliver to the Landlord copies of
all reports and studies required by the Landlord and by governmental
authorities having jurisdiction regulating the manufacture, use,
storage, transportation or disposal of Hazardous Substances by the
Tenant. The Tenant shall conform to the procedures adopted by the
Landlord from time to time for the management of risks associated with
Hazardous Substances, including without limiting the generality of the
foregoing, conducting or participating in the conduct of audits of
environmental matters to confirm compliance with the requirements of
this Lease and all laws, adopting and following reasonable plans for
the proper handling and storage of Hazardous Substances, maintaining
records of storage and use of Hazardous Substances, notifying the
Landlord of any changes in storage or handling of Hazardous
Substances, and providing to the Landlord all reports as required form
time to time. - deleted text]
[4.34 Audit and - deleted text] Remedial Action. To take any remedial
action which the Landlord or any authority requires be taken with
regard to Hazardous Substances that are the responsibility of the
Tenant and the Tenant shall permit [at reasonable times and upon
reasonable notice, - added text] the Landlord, its employees and
agents, including its consultant, to have access to the Leased
Premises to test the same and comply with the requirements of any
authority with respect to Hazardous Substances. The Tenant within 10
days after demand by the Landlord shall pay to the Landlord as
additional rent the amount allocated to the Tenant by the Landlord,
acting reasonably, [of the costs of the audit and (if the remedial
action was in respect of Hazardous Substances the existence of which
on or in the Land, the Building or the Leased Premises was caused or
contributed to by the Tenant, its officers, directors, employees,
invitees or licensees) - deleted text] of any remedial action with
respect to such Hazardous Substances[, provided same was not in
compliance with Environmental Laws. - added text]
4.35 Indemnity. To indemnify, defend and save harmless the Landlord
from and against any and all costs, damages, losses, liability, fees,
penalties and charges incurred by, assessed against or imposed upon
the Landlord or its officers, directors, employees or agents
(including legal costs) as a result of the Tenant's use, disposal,
transportation, generation and/or sale of Hazardous Substances and in
respect of any contamination of the [Land, the Building, the Leased
Premises and any area or areas surrounding the Land - added text]
[Leased Premises, the Land or the Building - added text] caused or
contributed to by the Tenant, its officers, directors, employees,
invitees or licensees.
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(T) Sections 5.08 to 5.12, inclusive, are hereby added to and form part of
Article 5, "Landlord's Covenants":
5.08 Compliance with Environmental Laws. To ensure at the Landlord's
sole expense that as of the Commencement Date the Land and the
Building comply with all federal, provincial, regional district and
municipal laws, regulations, guidelines and bylaws relating to
pollution, Hazardous Substances or the protection of the environment.
The Landlord shall take all necessary precautions so as to ensure that
the Land and Building do not and are not likely to have Hazardous
Substances located thereon or therein that affect the Leased Premises
or Tenant's use thereof. The Landlord shall not at any time cause or
allow any Hazardous Substances to be generated, created, used, stored,
treated, transferred, transported or disposed of on the Land, the
Building or the Leased Premises except in compliance with all the
laws. The Landlord represents and warrants that to the best of its
knowledge having made due enquiry: (a) the use, maintenance and
operation of the Leased Premises are in compliance with all applicable
federal, provincial and municipal environmental laws ("Environmental
Laws"); (b) the Landlord has not received any notice of non-compliance
with any Environmental Laws with respect to the Land or Building,
including the Leased Premises; (c) there are no Hazardous Substances
located on or in the Leased Premises and no release of any Hazardous
Substances has occurred on or from the Leased Premises; and (d) there
are no underground or surface storage tanks or urea formaldehyde foam
insulation, asbestos, polychlorinated biphenyls or radioactive
substances located on or in the Leased Premises.
5.09 Remedial Action. To take any remedial action which any authority
requires be taken with regard to Hazardous Substances that are the
responsibility of the Landlord that affect the Leased Premises or
Tenant's use thereof provided such Hazardous Substances were not
brought on the Land or Building by the Tenant or any person for whom
the Tenant is responsible.
5.10 Indemnity. To indemnify, defend and save harmless the Tenant from
and against any and all costs, damages, losses, liability, fees,
penalties and charges incurred by, assessed against or imposed upon
the Tenant or its officers, directors, employees or agents (including
legal costs) as a result of the Landlord's use, disposal,
transportation, generation and/or sale of Hazardous Substances.
5.11 Survival. That the obligations of the Landlord hereunder related
to Hazardous Substances, and all indemnities of the Landlord hereof,
shall survive the expiry or earlier termination of this Lease.
5.12 By-Laws. To comply with all orders issued under any municipal,
federal, provincial, sanitary, fire and safety laws, by-laws or
regulations pertaining to the Land and Building, except for orders
pertaining to matters which are the responsibility of the Tenant under
this Lease or other tenants under their leases.
(U) Section 6.03 "Abatement and Termination" is hereby amended as follows:
6.03 Abatement and Termination. It is agreed between the Landlord and
the Tenant that:
(a) in the event of damage to the Leased Premises or to the Building
and if the damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and occupancy
by the Tenant for the purposes of its business for any period of time
in excess of ten days, then:
(i) unless the damage was caused by the fault or negligence
of the Tenant or its employees or others under its control, from
and after the date of occurrence of the damage and until the
Leased Premises are again reasonably capable of use and occupancy
as aforesaid, [rent - deleted text] [Basic Rent, Operating Costs
and Taxes - added text] shall xxxxx from time to time in
proportion to the part or parts of the Leased Premises not
reasonably capable of such use and occupancy, and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant, as the case may be
(according to the nature of the damage and their respective
obligations to repair as provided in Section 6.01 and 6.02) shall
repair such damage with all reasonable diligence, but to the
extent that any part of the Leased Premises is not reasonably
capable of such use and occupancy by reason of damage which the
Tenant is obligated to repair hereunder, any abatement of rent to
which the Tenant is otherwise entitled hereunder shall not extend
later than the time by which, in the reasonable opinion of the
Landlord, repairs by the Tenant ought to have been completed with
reasonable diligence; and
(b) if premises whether of the Tenant or other tenants of the Building
comprising in the aggregate half or more of the Rentable Area of the
Building, are substantially damaged or destroyed by any cause to the
extent [such - deleted text] that in the reasonable opinion of [an
independent architect or engineer retained by - added text] the
Landlord they cannot be repaired or rebuilt within 180 days after the
occurrence of the damage or destruction, the Landlord may at its
option, exercisable by written notice to the Tenant given within 30
days after the [occurrence of such damage or destruction - deleted
text] [receipt of the opinion of such architect or engineer - added
text], terminate this Lease[, in which event; neither the Landlord nor
the Tenant shall be bound to repair as provided in Sections 6.01 and
6.02, and the Tenant shall instead deliver up possession of the Leased
Premises to the Landlord with reasonable expedition but in any event
within 60 days after delivery of such notice of termination, and rent
shall be apportioned and paid to the date upon which possession is so
delivered up (but subject to any abatement to which the Tenant may be
entitled under Section 6.03(a) by reason of the Leased Premises having
been rendered in whole or in part not reasonably capable of use and
occupancy), but otherwise the Landlord or the Tenant as the case may
be (according to the nature of the damage and their respective
obligations to repair as provided in Sections 6.01 and 6.02) shall
repair such damage with reasonable diligence. - deleted text]
[(c) if the Leased Premises are substantially damaged or destroyed by
any cause to the extent that in the reasonable opinion of an
independent architect or engineer retained by the Landlord they cannot
be repaired or rebuilt within 180 days after the occurrence of the
damage or destruction, then the Landlord shall provide a copy of such
opinion to the Tenant and either the Landlord or the Tenant may at its
option, exercisable by written notice to the other party given within
30 days after the receipt of such opinion, terminate this Lease; -
added text]
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[(d) in the event of termination of this Lease pursuant to Section
6.03(b) or (c) above, neither the Landlord nor the Tenant shall be
bound to repair as provided in Sections 6.01 and 6.02, and the Tenant
shall instead deliver up possession of the Leased Premises to the
Landlord with reasonable expedition but in any event within 60 days
after delivery of such notice of termination, and rent shall be
apportioned and paid to the date upon which such damage or destruction
occurred, but otherwise the Landlord or the Tenant as the case may be
(according to the nature of the damage and their respective
obligations to repair as provided in Sections 6.01 and 6.02) shall
repair such damage with reasonable diligence. - added text]
(V) Section 7.04 "Alteration" is hereby deleted in its entirety.
(W) Section 8.02 "Assignments and Subletting" is hereby amended as follows:
8.02 Assignments and Subletting. The Tenant shall not assign, mortgage
or otherwise encumber or transfer this Lease or sublet the Leased
Premises or any part thereof without having obtained the Landlord's
prior written consent, [which consent shall not be unreasonably
withheld or delayed. - added text] [The Landlord may withhold its
consent arbitrarily to a proposed assignment of this Lease or sublease
of the Leased Premises or any part thereof if it elects to exercise
its right of termination hereinafter set forth. If such termination
right is not exercised, - deleted text] The Landlord covenants not to
withhold its consent unreasonably as to any assignee or sublessee who
is in satisfactory financial condition, agrees to use the Leased
Premises for the purposes and in the manner permitted and specified
hereunder, and is otherwise satisfactory to the Landlord. [No -
deleted text] Partial assignment shall be permitted [provided the
re-demising of the Leased Premises to permit the partial assignment is
acceptable to the Landlord acting reasonably. In particular, the
Landlord must be satisfied that the suites originated as a consequence
of the re-demising, in order to make the assignment possible, can have
an effective and reasonable layout and access. - added text]
The Tenant shall not assign this Lease or sublet the Leased Premises
or any part thereof unless:
a) it shall have received or procured a bona fide written offer to
take an assignment or sublease which is not inconsistent with
this Lease, and the acceptance of which would not breach any
provision of this Lease; and
b) it shall have first requested and obtained the consent in writing
of the Landlord thereto.
Any request for consent shall be in writing and accompanied by a true
copy of the offer, all information available to the Tenant and
requested by the Landlord as to the responsibility, financial standing
and business of the proposed assignee or subtenant and payment of such
amount as the Landlord reasonably requires to reimburse it for its
time and expense in considering the request for consent.
[Notwithstanding the provisions of subsection (a), within 10 days
after the receipt by the Landlord of such request for consent and of
all information which the Landlord shall have requested hereunder, the
Landlord shall have the right upon written notice of termination
submitted to the Tenant, if the request is to assign this Lease or
sublet the Leased Premises, to cancel and terminate this Lease as of a
termination date to be stipulated in the notice of termination which
shall be not less than 60 days or more than 90 days following the
giving of such notice. In such event the Tenant shall surrender the
Leased Premises in accordance with such notice of termination and rent
and additional rent shall be apportioned and paid to the date of
surrender. - deleted text] If such consent shall be given, the Tenant
shall assign or sublet, as the case may be, only upon the terms set
out in the offer submitted to the Landlord. No assignment or
subletting of this Lease shall be effective unless the assignee or
sublessee shall execute an assumption agreement on the Landlord's
form, prepared at the expense of the Tenant, assuming all the
obligations of the Tenant hereunder. The Tenant agrees that any
consent to an assignment or subletting of this Lease or Leased
Premises shall not thereby release the Tenant of its obligations
hereunder. The consent by the Landlord to an assignment or subletting,
if granted, shall not constitute a waiver of the necessity for the
Tenant to obtain the prior written consent of the Landlord to a
subsequent assignment or subletting.
Without limitation, the Tenant shall for the purpose of this Lease be
considered to assign or sublet in any case where it permits the Leased
Premises or any portion thereof to be, or the Leased Premises or any
portion thereof are, occupied by persons other than the Tenant, its
employees and others engaged in carrying on the business of the
Tenant, whether pursuant to assignment, subletting, parting with or
sharing possession, license or other right, or where any of the
foregoing occurs by operation of law.
[If as a result of any sublease the Tenant receives any rent or other
consideration from the sublessee in excess of the Basic Rent and
Additional Rent, the Tenant shall pay any such excess to the Landlord
forthwith on demand as Additional Rent, provided that the calculation
of the excess shall be net of the sum of:
i) the Tenant's out of pocket costs (such costs including, but
not limited to, commissions, attorney's fees, advertising,
tenant improvement allowances, rent inducements and free
rent) to sublet the Leased Premises; and
ii) the unamortized value of the leasehold improvements and
fixtures installed by the Tenant in the Leased Premises. -
added text]
(X) Section 8.03 "Change in Control of Tenant" is hereby deleted in its
entirety.
(Y) Section 9.01 "Installation of Fixtures and Improvements" is amended by
adding, at the end of the first sentence thereof, the following:
If the Landlord does not respond to the Tenant's written request to
install any Leasehold Improvements or trade fixtures within 5 business
days of receipt of such request, the Landlord's consent shall be
considered granted.
6
(Z) Section 9.03 "Removal of Fixtures and Improvements" is hereby amended as
follows:
9.03 Removal of Fixtures and Improvements. Except to the extent
otherwise expressly agreed by the Landlord in writing, no Leasehold
Improvements, trade fixtures, furniture or equipment shall be removed
by the Tenant from the Leased Premises either during or at the
expiration or sooner termination of the Term except that (1) the
Tenant may at the end of the Term remove its trade fixtures, (2) the
Tenant shall at the end of the Term remove such of its [Leasehold
Improvements and - deleted text] trade fixtures as the Landlord shall
require to be removed, and (3) the Tenant may remove its furniture and
equipment at the end of the Term, and also during the Term in the
usual and normal course of its business where such furniture or
equipment has become excess for the Tenant's purposes or the Tenant is
substituting therefor new furniture and equipment. The Tenant shall,
in the case of every removal either during or at the end of the Term,
make good any damage caused to the Leased Premises or the Building by
the installation and removal.
[For further clarification, the Tenant shall not be required to
remove, at the end of the Term, any Leasehold Improvements, the
installation of which had obtained the approval of the Landlord.
However, should the Lease be terminated for breach of lease by the
Tenant, the Landlord shall be entitled to require the Tenant to remove
any of its Leasehold Improvements. - added text]
(AA) Article 10 "Insurance and Liability" is hereby amended as follows:
ARTICLE 10
INSURANCE AND LIABILITY
10.01 Landlord's Insurance. The Landlord shall take out and keep in
force during the Term insurance with respect to the Building. The
insurance to be maintained by the Landlord shall be in respect of
perils and in amounts and on terms and conditions which from time to
time are insurable at a reasonable premium and which are normally
insured by reasonably prudent owners of properties similar to the
Building. The perils to be insured against by the Landlord shall
include, without limitation, comprehensive general liability, boilers
and machinery, fire and extended perils, and losses suffered by the
Landlord in its capacity as Landlord through business interruption.
[All insurance required to be maintained by the Landlord shall contain
a waiver of any right of subrogation against the Tenant. - added text]
10.02 Tenant's Insurance. The Tenant shall take out and keep in force
during the Term:
(a) comprehensive general public liability (including bodily
injury, death and property damage) insurance on an occurrence
basis with respect to the business carried on, in or from the
Leased Premises and the Tenant's use and occupancy thereof of not
less than $2,000,000.00 per occurrence which insurance shall
include the Landlord as a named insured and shall protect the
Landlord in respect of claims by the Tenant as if the Landlord
were separately insured;
(b) insurance, for the full replacement cost in respect of fire
and such other perils, including sprinkler leakage as are from
time to time defined in the usual extended coverage endorsement
covering the Leasehold Improvements and the Tenant's trade
fixtures and the furniture and equipment of the Tenant, and which
insurance shall include the Landlord as a named insured as the
Landlord's interest may appear with respect to insured Leasehold
Improvements and provide that any proceeds recoverable in the
event of loss to Leasehold Improvements shall be payable to the
Landlord, but the Landlord agrees to make available such proceeds
toward the repair or replacement of the Leasehold Improvements if
this Lease is not terminated pursuant to any other provision
hereof; and
[(c) tenant's fire legal liability insurance in an amount not
less than the replacement cost of the Leased Premises. - deleted
text]
All insurance required to be maintained by the Tenant hereunder shall
be on terms and with insurers to which the Landlord has no reasonable
objection, shall provide that such insurers shall provide to the
Landlord 30 days prior written notice of cancellation or material
alteration of such terms and shall waive any right of subrogation
against the Landlord. The Landlord may require the Tenant to furnish
certificates or other evidence acceptable to the Landlord as to the
insurance from time to time required to be effected by the Tenant and
its renewal or continuation in force.
10.03 Limitation of Landlord's Liability. The Tenant agrees that the
Landlord shall not be liable for any bodily injury or death or loss or
damage to any property belonging to the Tenant or its employees,
invitees, or licensees or any other person in, on or about the
Building unless resulting from the willful misconduct or gross
negligence [or negligence - added text] of the Landlord, but in no
event shall the Landlord be liable:
(a) for any damage other than Insured Damage which is caused by
steam, water, rain or snow which may leak into, issue or flow
from any part of the Building or from the pipes or plumbing works
(including sprinklers, if any) thereof or from any other place or
quarter or for any damage caused by or attributable to the
condition or arrangement of any electric or other wiring or for
any damage caused by anything done or omitted by any other
tenant;
[(b) for any act or omission (including theft, malfeasance or
negligence) on the part of any contractor from time to time
employed by it to perform janitor services, security services,
supervision or any other work in or about the Leased Premises of
the Building; - deleted text]
(c) for loss or damage, however caused, to money, securities,
negotiable instruments, paper or other valuables of the Tenant;
[(d) for any damages for personal discomfort or illness resulting
from the operation or non-operation of the Building ventilating
and/or air conditioning system or of any other equipment or
machinery in the Building or on the Land, including but not
limited to elevators, or the interruption of any public utility;
- deleted text]
7
(e) for indirect or consequential damages [in excess of the
amount covered by the Landlord's insurance policy which shall not
be less than $10,000,000.00 during the Term; or - added text]
(f) for any business interruption [or loss - deleted text] [for
which the Tenant is insured. - added text]
[The Tenant covenants with the Landlord that the Tenant will
maintain business interruption insurance, in the broadest
available form, for an interruption of at least 180 days and in
an amount of coverage that a reasonable and prudent tenant would
maintain given the nature of its business. - added text]
[10.04 Limitation of Tenant's Liability. The Landlord releases the
Tenant from all claims or liabilities in respect of any damage which
is Insured Damage, to the extent of the cost of repairing such damage,
but not from injury, loss or damage which is consequential thereto or
which arises therefrom where the Tenant is negligent or otherwise at
fault. - deleted text]
[10.05 Indemnity of Landlord. Except as provided in Section 10.04 the
Tenant agrees to indemnify and save harmless the Landlord in respect
of all claims for bodily injury or death, property damage or other
loss or damage arising from the conduct of any work by or any act or
omission of the Tenant or any assignee, subtenant, agent, employee,
contractor, invitee or licensee of the Tenant, and in respect of all
costs, expenses and liabilities incurred by the Landlord in connection
with or arising out of all such claims, including the expenses of any
action or proceeding pertaining thereto, and in respect of any loss,
cost, expense or damage suffered or incurred by the Landlord arising
from any breach by the Tenant of any of its covenants and obligations
under this Lease. This indemnity shall survive the expiration or
termination of this Lease. - deleted text]
(BB) Section 11.02 "Subordination and Attornment" is amended by adding, at the
end thereof, the following:
Notwithstanding the foregoing, upon refinancing of the project, the
Landlord shall obtain a non-disturbance agreement, in the form
normally provided by lenders at that time, provided that the Tenant is
not in default under the Lease.
(CC) Section 15.02 "Extraneous Agreements" is hereby amended as follows:
15.02 Extraneous Agreements. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions
expressed or implied relating to this Lease or the Leased Premises
save as expressly set out in this Lease [and in any outstanding
agreement to lease in writing between the Landlord and the Tenant
pursuant to which this Lease has been executed. All terms of such
agreement to lease shall remain in full force and effect until
fulfilled, except to the extent inconsistent with the provisions of
this Lease. In the event of any inconsistency between the terms of any
such outstanding agreement to lease and this Lease, the terms of this
Lease shall prevail. - deleted text] This Lease may not be modified
except by an agreement in writing executed by the Landlord and the
Tenant.
(DD) Section 16.01 "Renewal" and Section 16.02 "Arbitration" are hereby deleted
and replaced with the following:
16.01 Renewal. The Landlord covenants with the Tenant that if the
Tenant has performed on a timely basis and is not in default in the
performance of the covenants, provisos and agreements herein on the
part of the Tenant to be paid, observed and performed and subject to
the condition set out in the last paragraph of this section, the
Landlord will at the expiration of the Initial Term (at the cost of
the Tenant and upon its written request delivered to the Landlord not
later than twelve (12) months before the expiration of the preceding
term) grant to the Tenant a renewal lease of the Leased Premises for a
renewal term as set out in Section 1.01(k), subject to all the terms
and conditions herein contained, except that the renewal lease shall
not include this right of renewal and except that the Basic Rent and
the Parking Rent for the renewal term shall be as hereinafter
specified.
The Landlord and the Tenant agree that the Basic Rent and the Parking
Rent for the renewal term shall be the prevailing annual rent in the
open market then being charged for leased premises used for the same
purposes as the original Tenant's Leased Premises and parking rights
in Burnaby, and shall be determined based on the assumption that the
Tenant has already received any signing bonus, improvement allowance,
rent free period or other inducement payment that would be commonly
received by the Tenant for the Lease in the then current market
circumstances, although it is understood and agreed between the
Landlord and the Tenant that no such signing bonus, improvement
allowance, rent free period or other inducement payment under the
Lease shall in fact be payable.
In calculating the annual Basic Rent for the renewal term, the
Landlord and the Tenant agree to take into account that the Leased
Premises include any improvements which have been or are hereafter
made to the Leased Premises by any person. If by the date 60 days
prior to the commencement of the renewal term, the Landlord and Tenant
have not agreed as to the amount of such annual Basic Rent, such
amount shall be determined by arbitration as provided in Section
16.02. Until the annual Basic Rent has been determined as herein
provided, the Tenant shall continue to pay Basic Rent at the rate
payable before such commencement and upon such determination the
Landlord and the Tenant shall make the appropriate readjustments. In
no event shall the annual Basic Rent for the renewal term be less than
the annual Basic Rent charged during the last year of the preceding
term.
16.02 Arbitration. If the Landlord and the Tenant have failed to agree
as to the annual Basic Rent and the Parking Rent for the Leased
Premises payable with respect to the renewal term, when required
hereunder, the determination of such annual Basic Rent and Parking
Rent shall be referred to a single arbitrator pursuant to the
Provisions of the Commercial Arbitration Act of British Columbia. In
determining the annual Basic Rent, the arbitrator shall assess the
annual Basic Rent on the assumption that the Tenant has already
received any signing bonus, improvement allowance, rent free period or
other inducement payment that would be commonly received by the Tenant
for the Lease in the then current market circumstances, although it is
understood and agreed between the Landlord and the Tenant that no such
signing bonus, improvement allowance, rent free period or other
inducement payment under the Lease shall in fact be
8
payable. In calculating the annual Basic Rent for the renewal term,
the arbitrator shall take into account that the Leased Premises
include any improvements made prior to the date of the arbitration
hearing to the Leased Premises to the extent of any Tenant inducements
provided by the Landlord to the Tenant (namely $25.00 per square
foot). The determination made by the arbitrator shall be final and
binding upon the Landlord and the Tenant, and their respective
successors and assigns. Each party shall pay one-half of the fees and
expenses of the arbitrator. The provisions of this Section shall be
determined to be a submission to arbitration within the provisions of
the Commercial Arbitration Act, as amended from time to time.
1.03 Definitions. In this Lease:
"Accounting Year" means each 12-month period commencing January 1 and ending
December 31, the whole or part of which period is within the term or any renewal
hereof.
"Additional Services" means the services supplied by the Landlord and referred
to in Section 7.03 or in any other provision hereof as Additional Services, and
any other services which from time to time the Landlord supplies to the Tenant
and which are in addition to the services which the Landlord has agreed to
supply pursuant to the provisions of this Lease and to like provisions of other
leases of the Building and may include janitor and cleaning services in addition
to those normally supplied, locksmithing, removal of bulk garbage, picture
hanging, special security arrangements, the provision of labour and supervision
in connection with bulk deliveries, supervision in connection with the moving of
any furniture or equipment and the making of any repairs or alterations and
maintenance or other services not normally furnished to tenants generally.
"Building" means that certain office and warehouse building and other
improvements located on the Land and all additions and replacements thereto.
"Common Areas" means all areas of the Building and the Land except the Leased
Premises and all the other premises leased or leasable to other tenants.
"Cost of Additional Services" means the Landlord's total cost of providing
Additional Services to the Tenant including all amounts paid to independent
contractors plus all expenses incurred directly by the Landlord including the
cost of labour and materials.
"Hazardous Substances" means those substances which now or at any time during
the Term, are a threat or capable of posing a threat to the public health or the
environment or which are regulated for such reasons under any laws, regulations,
requirements or guidelines of the Province of British Columbia, the Government
of Canada or any municipal government;
"Initial Term" means the term of this Lease set forth in Section 1.01 (e).
"Insured Damage" means that part of any damage occurring to the Leased Premises
of which the entire cost of repair (or the entire cost of repair other than a
deductible amount collectable by the Landlord as part of the Operating Costs) is
actually recoverable by the Landlord under a policy of insurance in respect of
fire and other perils from time to time effected by the Landlord. Where an
applicable policy of insurance contains an exclusion for damages recoverable
from a third party, claims as to which the exclusion applies shall be considered
to constitute Insured Damage only if the Landlord successfully recovers from the
third party.
"Land" means certain parcel(s) of land, situated in Burnaby, British Columbia,
legally described as:
Xxx 00 "X"
xxxxxx firstly: the west 150 feet, secondly:
part now road on statutory right of way Plan 4957
District Lot 124, Group 1 NWD Plan 3348
"Leased Premises" means that portion of the Building shown in heavy outline on
the Plan attached as Schedule "A" hereto. The exterior face of the Building and
any space in the Leased Premises used for stairways or passageways to other
premises, stacks, shafts, pipes, conduits, ducts or other Building facilities,
and heating, electrical, plumbing, air conditioning and other systems serving
the Building or parts thereof are expressly excluded from the Leased Premises.
"Leasehold Improvements" means all fixtures, improvements, installations,
alterations and additions from time to time made, erected or installed in the
Leased Premises by the Tenant or by the Landlord on behalf of the Tenant, or by
other tenants, with the exception of trade fixtures and furniture and equipment
not of the nature of a fixture, but shall include all partitions however
affixed, doors, hardware, mechanical, electrical and utility installations,
plumbing fixtures, closets, built-in cabinets, counters and millwork, floorings,
including carpeting, and window coverings.
"Normal Business Hours" means the hours from 8:00 a.m. to 5:30 p.m. Monday to
Friday, inclusive, for office tenancies and from 8.00 a.m. to 6.00 p.m. Monday
to Saturday, inclusive, for retail tenancies, of each week, holidays excepted,
or any such extended periods of hours and days as the Landlord, acting
reasonably, may designate from time to time. The Landlord may, at its option,
designate from time to time different business hours for retail tenants and,
when reasonably required, for other tenants. The Normal Business Hours for the
warehouse component of any premises are 24 hours per day of each week including
holidays.
"Operating Costs" means the total of all costs and expenses, calculated in
accordance with generally accepted accounting principles, without duplication,
incurred in the complete maintenance, operation, repair and replacement of the
Building and the Land. If in any given period of time less than 100% of the
Building is occupied by tenants and the Landlord obtains a reduction in cost or
a credit as a result of the Building being less than 100% occupied, the amount
of such cost reduction or credit shall be allocated to the Landlord with the
intent that the Tenant will be in substantially the same position as if the
Building had been 100% occupied.
Operating Costs (without limiting the generality of the foregoing):
(a) shall include (but subject to certain deductions as hereinafter provided)
the cost of providing cleaning, and janitorial services, the cost of sweeping,
restriping, repairing and replacing parking areas, the cost of maintaining and
replanting plants and landscaping, the cost of operating elevators, the cost of
heating, cooling and/or ventilating rentable and non-rentable areas, the cost of
providing water, electricity (including lighting), and other utilities and
services to the Building and the Land, the cost of supervisory and maintenance
services, the cost of all repairs and replacements to the Building or other
improvements on the Land, the cost of window cleaning, the cost
9
of security and supervision, the cost of all insurance taken out by the
Landlord, accounting and auditing costs, the amount of all salaries, wages,
fringe benefits and severance payments paid for, or for the benefit of, or on
account of, employees engaged in the maintenance, operation, repair, inspection,
remediation or replacement of the Building and the Land, amounts paid to
independent contractors in connection with such maintenance, operation, repair,
inspection or remdiation or replacement, the cost of direct supervision and of
management and other indirect expenses to the extent allocable to the
maintenance, operation, repair, inspection, remediation or replacement of the
Building and the Land, the cost of leasing or purchasing any signs or public
address, intercom, background music apparatus, alarm and security access system
or centralized communication cables or centralized systems, that the Landlord
may add and maintain, from time to time, to and in the Building and the costs of
operating, maintaining, repairing or replacing same, the cost to the Landlord of
making a capital improvement resulting in the reduction of the Operating Costs
provided the annual amortization of such costs of making capital improvements
does not exceed the corresponding reduction of Operating Costs, provincial
capital taxes allocated by the Landlord to the Building and the Land and
calculated as if the Building and the Land were the only asset of the Landlord,
all business taxes and other taxes, if any, from time to time payable by the
Landlord with respect to the Common Areas, depreciation or amortization as
determined by the Landlord of the costs, including repair and replacement,
incurred after the original completion of construction of the Building for
repairing or replacing all fixtures, equipment and facilities serving the
Building or the Common Areas which by their nature require periodic repair or
replacement (including, without limitation, the heating, ventilating and air
conditioning systems serving the Building) unless such costs are charged fully
in the Accounting Year in which they are incurred, interest calculated at 7%,
calculated annually for each Accounting Year upon the undepreciated or
unamortized portion of the costs referred to immediately above, the cost of any
management fees or, at the Landlord's option from time to time, an
administration fee to the Landlord equal to the lesser of 5% of the gross rental
income of the Building and the prevailing management fee that would be charged
to manage a comparable building in Burnaby by an independent professional
property management firm, and all other expenses of every nature incurred in
connection with the maintenance, operation, repair, inspection, remediation or
replacement of the Building and the Land;
(b) shall exclude taxes, debt service, depreciation, costs of repairing
structural defects in the Building and the cost of acquiring new tenants for the
Building; and
(c) shall exclude the cost of providing to all the leased and/or leasable
premises of the Building those services which the Tenant has agreed to pay for
or provide directly for the Leased Premises and the cost of supplying to all the
leased and/or leasable premises of the Building those utilities which, in the
Leased Premises, are metered and paid for directly by the Tenant; all as
detailed in Schedule "D" attached hereto (if applicable).
In computing Operating Costs there shall be credited as a deduction the amounts
of proceeds of insurance relating to Insured Damage and other damage actually
recovered by the Landlord applicable to such damage to the extent that the cost
thereof was included therein. Any expenses not directly incurred by the Landlord
but which are included in Operating Costs may be reasonably estimated by the
Landlord if the Landlord cannot ascertain the actual amount of such expenses
from the persons who incurred them. If less than all of the Rentable Area of the
Building is occupied during any period for which a computation must be made, any
expenses which are related to the level of occupancy will be increased to be
equal to the amount of such expenses that would have been incurred had the
entire Rentable Area of the Building been occupied, to ensure that the Landlord
recovers the full amount of such expenses relating to occupancy from those
tenants benefiting therefrom.
"Parking Areas" has the meaning defined in Section 4.37.
"Prime Rate" means the rate of interest charged and published from time to time
by the main branch in Vancouver, British Columbia of the Landlord's bank as a
reference rate for setting interest rates on commercial loans in Canadian
dollars and referred to by such bank as its "prime rate".
"Proportionate Share" means with respect to the portion of the Leased Premises
designated for office use, the proportion which the Rentable Area of the Leased
Premises designated for office use bears to the Total Rentable Areas of the
Building designated for office use, and with respect to the portion of the
Leased Premises designated for warehouse use, means the proportion which the
Rentable Area of the Leased Premises designated for warehouse use bears to the
Total Rentable Area of the Building designated for warehouse use.
"Rentable Area" in the case of a whole floor of the Building means the area
expressed in square feet as certified by the Landlord's architect, engineer or
surveyor of all areas of the floor and mezzanine (if any) measured from the
inside surface of the window glass of the outer Building walls where the glass
comprises 50% or more of the wall measured vertically and from the inside
surface of the outer building wall where the glass portion of the outer building
wall comprises less than 50% of the wall measured vertically, without deduction
for columns, wall projections, internal stairs or elevators connecting two or
more floors rented by the same tenant or for any other interior construction or
equipment or for any doorway areas recessed from the perimeter of the area and
shall include a portion of the Service Areas located on other floors that serve
the floor as determined by the Landlord, acting reasonably, but shall not
include stair shafts and elevator shafts supplied by the Landlord for use in
common with other tenants.
"Rentable Area" in the case of part of a floor of the Building means the area
expressed in square feet as certified by the Landlord's architect, engineer or
surveyor of all the area occupied by the Leased Premises including any mezzanine
forming part of the Leased Premises, measured from the inside surface of the
window glass of the outer Building walls, where the glass comprises 50% or more
of the wall measured vertically, and from the inside surface of the outer
building wall where the glass portion of the outer building wall comprises less
than 50% of the wall measured vertically. without deduction for columns and
projections between the windows, to the centre line of all interior walls
separating the Leased Premises from adjoining Service Areas and/or other
rentable premises, all without deduction or exclusion for columns, wall
projections, internal stairs or elevators connecting two or more floors rented
by the same tenant, or for any other interior construction or equipment or for
any doorway areas recessed from the lease line designated by the Landlord plus a
portion of the Service Areas, wherever located, serving the floor which includes
the Leased Premises as determined by the Landlord, acting reasonably.
"Sales Taxes" means all goods and services taxes, sales taxes, value added taxes
or any other similar taxes imposed on the Tenant or the Landlord, by any level
of government, with respect to rent, additional rent or any other amounts
payable by the Tenant to the Landlord under this Lease, whether characterized as
a goods and services tax, sales tax, value added tax or otherwise.
"Service Areas" means the areas of the Building that provide services to tenants
but which are not included in the area of leased premises of a tenant, including
without limitation, main and auxiliary lobbies and elevator lobbies, atrium
spaces at the level of the finished floor, concierge areas or security desks,
conference rooms, lounges or vending areas, food service facilities, health or
fitness centres, day-care facilities, locker or shower facilities, mail rooms,
fire control rooms, fully enclosed courtyards outside the exterior walls,
building core and service areas such as enclosed mechanical or equipment rooms,
corridors, washrooms, air-cooling rooms, fan rooms, janitor's closets,
10
telephone and electrical closets and other closets serving the Leased Premises
and other leased or leasable premises, whether such Service Areas are located on
the floor on which the Leased Premises are located or elsewhere in the Building
or on the Land
"Taxes" means all taxes, rates, duties, levies and assessments whatsoever,
whether municipal or otherwise, levied, imposed or assessed against the Building
and the Land or upon the Landlord in respect thereof or from time to time
levied, imposed or assessed in the future in lieu thereof, including those
levied, imposed or assessed for education, schools and local improvements, and
including all costs and expenses incurred by the Landlord in good faith in
appealing any taxes, rates, duties, levies or assessments, but excluding taxes
and license fees in respect of any business carried on by tenants and occupants
of the Building (including the Landlord) and income or profits taxes upon the
income of the Landlord to the extent such taxes are not levied in lieu of taxes,
rates, duties, levies and assessments against the Building or the Land and shall
also include any and all taxes which may in future be levied in lieu of taxes as
hereinbefore defined.
"Term" means the Initial Term and any extension or renewal thereof and any
period of permitted overholding.
"Total Rentable Area" means, with respect to the portion of the Leased Premises
designated for warehouse use, the total Rentable Area of all leased and leasable
premises contained in the portion of the Building designed for warehouse use,
and with respect to the portion of the Leased Premises designated for office
use, the total Rentable Area of all leased and leasable premises contained in
the portion of the Building, including mezzanines, designated for office use.
"Utilities" means electricity, oil, gas, power, telephone, water, and all other
utilities.
"Valet Parking System" has the meaning defined in Section 4.38.
11
STANDARD PROVISIONS
-------------------
ARTICLE 2
LEASED PREMISES AND TERM
2.01 Leased Premises. In consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord leases to the Tenant the Leased Premises
specified in Section 1.01(c).
2.02 Initial Term. The Initial Term of the Lease is the period set out in
Section 1.01 (e) and the Initial Term commences on the Commencement Date set out
in Section 1.01 (f).
2.03 Possession. If the Landlord is unable to deliver possession of the Leased
Premises to the Tenant at the commencement of the Initial Term, the Landlord
shall not be liable for damages or loss caused thereby, nor shall this Lease be
void or voidable, nor shall the commencement or the expiration date of the
Initial Term be changed. In such event the Tenant shall only be liable for the
rent, at the rate hereby reserved, once the Landlord is able to deliver
possession of the Leased Premises to the Tenant.
2.04 Acceptance of Leased Premises. Taking possession of all or any portion of
the Leased Premises by the Tenant shall be conclusive evidence as against the
Tenant that the Leased Premises or such portion thereof are in satisfactory
condition on the date of taking possession.
2.05 Security Deposit. The Landlord acknowledges receipt of the amount set out
in 1.01 (j) to be held by the Landlord as a deposit as security for the payment
of rent and performance of the Tenant's obligations under this Lease. If at any
time rent or any other amount payable by the Tenant is overdue and unpaid or the
Tenant fails to perform any of its obligations under this Lease, the Landlord
may, either before or after terminating this Lease, apply the whole or any part
of the deposit to the payment of such rent or other amount or to compensate the
Landlord for any loss or expense incurred by the Landlord and such application
will be without prejudice to the Landlord's right to pursue any other remedy set
forth in this Lease. If the whole or any part of the deposit is applied by the
Landlord, the Tenant shall forthwith pay to the Landlord a sufficient amount to
restore the deposit to the amount specified in Section 1.01 (j) and the Tenant's
failure to do so within ten days after demand will constitute a breach of this
Lease. If the Tenant promptly pays all rent as it falls due and performs all of
its obligations under this Lease, the Landlord will repay the deposit to the
Tenant upon the later of termination of this Lease and the repossession of the
Leased Premises by the Landlord. The Landlord may deliver and assign the
security deposit to any purchaser of the Landlord's interest in the Leased
Premises and thereupon the Landlord will be discharged from any further
liability with respect to such deposit.
ARTICLE 3
RENT
3.01 Basic Rent. The Tenant will pay to the Landlord, at such place as the
Landlord directs in writing, during the Initial Term in lawful money of Canada,
without any set off, abatement, compensation, or deduction whatsoever, the Basic
Rent:
a) for each Lease Year set out in Section 1.01(g), in the amounts per square
foot per annum set out in such section multiplied by the Rentable Area of
the Leased Premises payable by equal consecutive monthly installments; and
b) for the remainder of the Initial Term (if any), in the amount per square
foot equal to the prevailing rate per annum in the open market being
charged for the best use of similar premises, with equivalent leasehold
improvements, in comparable office/retail buildings in Downtown Vancouver,
without deduction for any signing bonus, improvement allowance, rent free
period or other inducement payment commonly received by tenants in the then
current market circumstances (the "Prevailing Market Rate"), multiplied by
the Rentable Area of the Leased Premises payable by equal consecutive
monthly installments. The determination of the Prevailing Market Rate shall
be made jointly by the Landlord and the Tenant at least three months prior
to the first day of the remainder of the Initial Term, failing which it
shall be referred to a single arbitrator pursuant to the provisions of the
Commercial Arbitration Act of British Columbia. In determining the
Prevailing Market Rate, --------------------------- the arbitrator shall
comply with the above-described criteria. The determination made by the
arbitrator shall be final and binding upon the Landlord and the Tenant, and
their respective successors and assigns. Each party shall pay one-half of
the fees and expenses of the arbitrator. The provisions of this Section
shall be determined to be a submission to arbitration within the provisions
of the Commercial Arbitration Act, as ---------------------------- amended
from time to time. In no event shall the annual Basic Rent for the period
referred to in Section 3.01(b) be less than the annual Basic Rent for the
last Lease Year of the period specified in Section 3.01(a). Until the Basic
Rent has been determined for the period (if any) referred to in this
Section 3.01(b) as herein provided, the Tenant shall continue to pay the
monthly installment of Basic Rent payable before the commencement of such
period and upon such determination the Landlord and the Tenant shall make
the appropriate readjustments.
The Tenant shall pay each monthly installment in advance on or before the first
day of each and every calendar month during the Term, and pay the first
installment on or before the day of commencement of the Initial Term. If the
Initial Term commences on a day other than the first, or ends on a day other
than the last day of a month, the Basic Rent for the fraction of a month shall
be calculated at a rate per day equal to 1/365th of the annual Basic Rent.
3.02 Basis of Determining Basic Rent. The annual Basic Rent set out in Section
3.01(a) is calculated on the basis of the Rentable Area of the Leased Premises
being approximately the number of square feet set out in Section 1.01 (d) at the
rates for each square foot of Rentable Area set out in Section 1.01(g). The
annual Basic Rent shall be adjusted in the event that the Rentable Area of the
Leased Premises is found to be different than the Rentable Area stated in
Section 1.01 (d) above.
3.03 Post-dated Cheques. If requested by the Landlord from time to time, the
Tenant will provide to the Landlord, without prejudice to any other right or
remedy of the Landlord, a series of cheques, post-dated to the respective due
dates of payments, for the amounts of Basic Rent, Operating Costs and Taxes
fixed by the Landlord which are periodically payable under the Lease.
3.04 Waiver of Offset. The Tenant hereby waives and renounces any and all
existing and future claims, offsets and compensation against any rent and agrees
to pay rent, without deduction, regardless of any claim, offset or compensation
which may be asserted by the Tenant or on its behalf.
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ARTICLE 4
TENANT'S COVENANTS
4.00 Tenant Covenants. The Tenant covenants with the Landlord as follows:
4.01 Rent. To pay rent on the days and in the manner provided.
4.02 Tenant's Taxes. To pay when due all business taxes, license fees and other
taxes and charges levied or assessed in respect of the use or occupancy of the
Leased Premises by the Tenant or in respect of the equipment, machinery or
fixtures, partitions and improvements brought therein by the Tenant or on behalf
of the Tenant, or anyone occupying the Leased Premises with the Tenant's
consent, whether existing at the date hereof or hereinafter imposed by any
governmental authority, including, without limitation, value added tax, business
transfer tax, retail sales tax, federal sales tax, goods and services tax,
excise taxes or duties, or any tax similar to any of the foregoing, including
penalties for late payment thereof, whether payable by the Tenant or the
Landlord.
4.03 Tenant's Sales Taxes. To pay the Landlord all Sales Taxes imposed on the
Tenant or the Landlord by any level of government with respect to rent,
additional rent or any other amounts payable by the Tenant to the Landlord under
this Lease, it being the intention of the parties that the Landlord shall be
fully reimbursed by the Tenant with respect to any and all Sales Taxes payable
or collectable by the Landlord. The amount of such Sales Taxes so payable by the
Tenant shall be calculated in accordance with the applicable legislation and
shall be paid to the Landlord at the same time as the amounts to which such
Sales Taxes apply are payable to the Landlord under the terms of this Lease or
earlier if required by the applicable legislation. Notwithstanding any other
provision in this Lease to the contrary, the Sales Taxes payable by the Tenant
under this paragraph shall be deemed not to be rent or additional rent, but the
Landlord shall have all remedies for and rights of recovery of such Sales Taxes
as it has for recovery of rent under this Lease.
4.04 Utilities. To pay (without duplication of any payment made on account of
Operating Costs) all rates and charges for all Utilities and other services
supplied to or used on the Leased Premises or reasonably attributable to the
Tenant or the Tenant's occupation of the Leased Premises and if such rates and
charges shall be billed or assessed against the Landlord, the Tenant shall pay
such rates and charges to the Landlord upon demand by the Landlord.
4.05 Taxes. To pay as additional rent to the Landlord the Tenant's Proportionate
Share of any Taxes within 10 days of receipt of notice from the Landlord. If
Taxes are not imposed separately on the portion of the Building designated for
warehouse use and the portion designated for office use by the taxing
authorities, the Landlord, acting reasonably, shall allocate Taxes for the Land
and Building to the portion of the Building designated for warehouse use and the
portion of the Building designated for office use and the Tenant shall pay its
Proportionate Share of such allocated amounts depending upon whether the Leased
Premises are designated for office or warehouse use. Provided however that the
Landlord may estimate in advance at the beginning of each and any Accounting
Year of the Term or portion thereof, the annual amount of the Tenant's
Proportionate Share of Taxes and request that the Tenant pay and the Tenant
shall pay as additional rent 1/12th of such estimated sum monthly in advance
concurrently with the payments of Basic Rent pursuant to Article 3 of this
Lease. As soon as the actual amount of the Taxes for the Accounting Year becomes
known to the Landlord and if the said amount exceeds or is less than the amount
estimated by the Landlord by 10% or more, the Landlord shall inform the Tenant
and the parties shall make all necessary corrective adjustments immediately. If
the difference between the actual amount and the estimated amount of Taxes is
less than 10%, the Tenant's Proportionate Share of Taxes shall be adjusted
according to Section 4.09.
4.06 Increased Taxes. If any Taxes shall be increased by reason of any
installation made in or upon or any alteration or improvement made in or to the
Leased Premises by the Tenant or by the Landlord on behalf of the Tenant, the
Tenant shall pay the amount of any such increase as additional rent.
4.07 Reduction of Taxes. Any expense incurred by the Landlord in obtaining or
attempting to obtain a reduction in the amount of tax shall be added to and
included in the amount of such Taxes. If the Tenant has paid its Proportionate
Share of Taxes and the Landlord has thereafter received a refund of any portion
of such Taxes, the Landlord shall make an appropriate refund to the Tenant.
4.08 Other Costs. To pay as additional rent to the Landlord:
a) its Proportionate Share of Operating Costs, by monthly installments to
be fixed by the Landlord from time to time; and
b) the Costs of Additional Services (if any) upon demand by the Landlord.
The Landlord, acting reasonably, shall allocate Operating Costs to Operating
Costs for premises designated for warehouse use and to Operating Costs for
premises designated for office use, and the Tenant shall pay its Proportionate
Share of such costs depending upon whether the Leased Premises are designated
for office or warehouse use.
If the Tenant's business hours are substantially longer than the Normal Business
Hours, the Tenant's Proportionate Share of Operating Costs shall be adjusted to
reflect the additional services, supplies and maintenance required as a
consequence of the longer business hours.
Wherever, in the Landlord's reasonable opinion, any cost or expense included in
Operating Costs properly relates only to a tenant or a group of tenants of the
Building, the Landlord may charge such cost or expense directly to such tenant
or group of tenants. Any cost or expense charged by the Landlord to the Tenant
under this section shall be payable by the Tenant upon demand by the Landlord.
4.09 Adjustments. At the end of each Accounting Year the Landlord shall compute
the amount of Operating Costs and Taxes for such Accounting Year and the
Tenant's Proportionate Share thereof and the aggregate of monthly payments made
by the Tenant during the accounting year pursuant to Sections 4.05 and 4.08
shall be adjusted by the Landlord on the basis of the total amount actually paid
or payable by the Tenant for such Accounting Year for Operating Costs and Taxes
with any excess or deficiency being payable respectively by the Landlord or the
Tenant within 60 days after the end of such Accounting Year notwithstanding that
this may fall after the end of the Term of this Lease.
4.10 Sales Tax Exclusion. There shall be excluded from amounts payable by the
Tenant under this Lease (and shown separately on statements) all Sales Taxes
with respect to the purchase of any goods and services, the cost of which goods
and services are included in amounts payable by the Tenant under this Lease, to
the extent that the amount of such Sales Taxes is or will be available to be
claimed by the Landlord as a credit or refund in determining the Landlord's net
tax liability on account of Sales Taxes.
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4.11 Net Lease. It is the intention of the parties that this Lease shall be a
completely net lease, and that the Basic Rent payable to the Landlord shall be
net to the Landlord, without abatement or offset for any cause whatsoever and
that all costs, expenses and obligations of every kind and nature whatsoever
relating to the 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.
4.12 Evidence of Payment. To produce to the Landlord from time to time upon
request satisfactory evidence of the due payment by the Tenant of all payments
required to be made by the Tenant under this Lease.
4.13 Permitted Use. To use the Leased Premises only for the purpose set out in
Section 1.01 (h) and not to use or permit to be used the Leased Premises or any
part thereof for any other purpose or business without the Landlord's prior
written approval.
4.14 Waste and Nuisance. Not to commit or permit any waste or injury to the
Leased Premises including Leasehold Improvements and trade fixtures therein, any
overloading of the floors, any consumption of electricity therein at any time
exceeding 4.5 xxxxx per square foot of Rentable Area, or any consumption or use
of any utility facility which will exceed or overload the capacity of any such
utility, any nuisance or any use or manner of use causing annoyance to other
tenants and occupants of the Building.
4.15 Insurance Risks. Not to do, omit to do or permit to be done or omit to be
done upon the Leased Premises anything which would cause the Landlord's cost of
insurance (whether fire or liability) to be increased or which shall cause any
policy of insurance to be subject to cancellation. Without waiving the foregoing
prohibition, the Landlord may demand, and the Tenant shall pay to the Landlord
upon demand, the amount of any such increase of cost caused by anything so done
or omitted to be done.
4.16 Condition. Not to permit the Leased Premises to become untidy, unsightly or
hazardous or permit waste or refuse to accumulate therein.
4.17 By-Laws. To comply at its own expense with all municipal, federal,
provincial, sanitary, fire and safety laws, by-laws, regulations and
requirements pertaining to the Leased Premises, the Leasehold Improvements,
trade fixtures, furniture and equipment installed by the Tenant, their operation
and use, and the making by the Tenant of any repairs, changes or improvements
therein.
4.18 Fire Exit Doors. To permit the Landlord to install any fire exit or other
doors in the exterior and demising walls of the Leased Premises necessary to
comply with the requirements of any statute, law, by-law, regulation, ordinance,
order or regulation referred to in Section 4.17, and not to obstruct any such
door.
4.19 Rules and Regulations. To observe, and to cause its employees and others
over whom the Tenant can reasonably be expected to exercise control to observe
the Rules and Regulations attached as Schedule "B" hereto, and such further and
other reasonable rules and regulations and amendments therein as may hereafter
be made by the Landlord of which notice in writing shall be given to the Tenant.
All such rules and regulations shall be deemed to be incorporated into and form
part of this Lease.
4.20 Overholding. That if the Tenant shall continue to occupy the Leased
Premises after the expiration or termination of this Lease without any further
written agreement and without objection by the Landlord, the Tenant shall be a
monthly tenant at a monthly Basic Rent equal to 150% of the Basic Rent payable
by the Tenant during the last month prior to the expiration or termination of
this Lease and (except as to length of tenancy) on and subject to the terms and
conditions of this Lease, including the payment of additional rent.
4.21 Use and Occupancy Prior to Term. If the Tenant for any reason uses or
occupies the Leased Premises in any way prior to the commencement of the Term,
then during such prior use or occupancy the Tenant shall be a tenant of the
Landlord and shall be subject to the terms and conditions of this Lease,
including the covenant to pay Basic Rent and additional rent.
4.22 Signs. The Tenant will not paint, display, inscribe, place or affix any
sign, symbol, notice or lettering of any kind anywhere outside the Leased
Premises (whether on the outside or inside of the Building) or within the Leased
Premises so as to be visible from the outside of the Leased Premises, with the
exception only of:
a) a standard directory listing in the main lobby of the Building
containing only the name of the Tenant, subject to the prior approval
of the Landlord as to design, size and location;
b) if the Leased Premises are located in the portion of the Building
designated for office use:
i) a standard directory listing in the corridor of the floor where
the Leased Premises are located containing only the name of the
Tenant, and
ii) a standard entrance door sign installed at or about the entrance
door to the Leased Premises containing only the name of the
Tenant, subject to receipt, in each case, of the prior written
approval of the Landlord as to design, size and location; and
c) any other signage specified in Schedule "C" hereto.
The Tenant shall indemnify and save harmless the Landlord from all claims,
demands, loss or damage to any person or property arising out of any sign, mast,
aerial or other installation, notwithstanding any consent by the Landlord
thereto.
All the above signs shall be installed at the cost of the Tenant and shall be
maintained and replaced or modified (as required by the Tenant subject to the
Landlord's approval) at the Tenant's cost by the sign company selected by the
Landlord. The Landlord will collect any such costs as rent.
4.23 Inspection and Access. To permit the Landlord and persons authorized by the
Landlord at any time to enter the Leased Premises for the purpose of inspection,
testing, maintenance, providing janitor service and window cleaning, making
repairs, alterations or improvements to the Leased Premises or the Building, or
to have access to utilities and services (including electrical and mechanical
rooms and access panels, which the Tenant agrees not to obstruct) or to
determine the electric light and power consumption by the Tenant in the Leased
Premises. The Tenant shall provide free and unhampered access for the purpose
and shall not be entitled to compensation for any inconvenience, nuisance or
discomfort, but the Landlord in exercising its rights hereunder shall proceed to
the extent reasonably possible so as to minimize interference with the Tenant's
use and enjoyment of the Leased Premises.
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4.24 Showing Leased Premises. To permit the Landlord and its authorized agents
and employees to show the Leased Premises to prospective purchasers and lenders
at any time during or after Normal Business Hours and to prospective tenants
during Normal Business Hours of the last six months of any lease term and
whenever the Tenant is in arrears of rent for more than 45 days in an amount
equal to or in excess of one month Basic Rent. In addition, to permit the
Landlord - if the Leased Premises are located at the ground floor on Lougheed
Highway or in the portion of the Building designated for warehouse use - to
install, during the last six months of any lease term, a sign on the outer wall
of the Leased Premises facing the street or in or about one of the Tenant's
windows (such sign not to unreasonably reduce visibility through such window) to
advertise the Leased Premises for lease.
4.25 Access to the Building Outside Normal Business Hours. To comply with all
regulations set by the Landlord for accessing the Building outside Normal
Business Hours and to comply with all the required procedures to operate the
electronic security access system. The Landlord, in case of misuse of the
electronic security access system or of a breach of the terms of this Lease,
including Rules and Regulations, or of any behaviour which, at the sole
discretion of the Landlord, is determined to be unacceptable, by the Tenant or
its employees, invitees or others under its control, may limit or prohibit
access to the Building by the Tenant outside Normal Business Hours in addition
to assessing the Tenant for any damage in accordance to Section 6.02(c). The
Landlord will supply the Tenant with the number of access cards reasonably
required by the Tenant at the commencement of the Initial Term, replacement
cards and/or additional cards as reasonably required by the Tenant from time to
time. The Landlord will levy a reasonable charge for all cards supplied to the
Tenant. The Tenant covenants with the Landlord to promptly inform the Landlord
if any of the Tenant's cards are lost or stolen and to return all cards to the
Landlord at the end of the Term.
4.26 Name of Building. The Tenant shall not refer to the Building by any name
other than that designated from time to time by the Landlord and the Tenant may
use the name of the Building for its business address and for no other purpose.
4.27 Use of Common Areas. Not to keep or display, except as may be specifically
allowed by the Landlord in writing, any merchandise or other thing on or about
the Common Areas or otherwise obstruct the Common Areas.
4.28 Operating Name. The Tenant shall carry on business under the operating name
set out in Section 1.01 (i), which the Tenant represents and warrants it is
entitled to use, and under no other name or style whatsoever unless such other
name or style is first approved in writing by the Landlord, such approval not to
be unreasonably withheld.
4.29 Covenant to Operate. The Tenant shall throughout the Term continually
operate, occupy and utilize the entire Leased Premises and conduct its business
in accordance with the provisions of this Lease. The Tenant acknowledges that
the Landlord is executing this Lease in reliance upon this covenant and that it
is a material element inducing the Landlord to execute this Lease. The Tenant
shall operate and conduct its business upon the whole of the Premises in an
up-to-date, first class and reputable manner befitting the character of the
Building and shall act diligently and use all proper and reasonable efforts
consistent with good business practice. The Tenant agrees not to make any
material change in the nature or character of the business carried on by the
Tenant in or from the Leased Premises or in the quality of goods and services
offered by the Tenant in or from the Leased Premises without the written consent
of the Landlord.
4.30 New Indemnity. If at any time during the Term, any indemnifier of the
Tenant's obligations under this Lease satisfies its obligations to the Landlord
under its indemnity agreement with the Landlord, then within 30 days thereafter,
the Tenant shall provide a new indemnity on the same terms and conditions as
contained in such agreement from a new indemnifier acceptable to the Landlord,
acting reasonably.
4.31 Cleaning. Notwithstanding any janitorial service that the Landlord may have
agreed to provide to the Leased Premises at certain intervals at the cost of the
Tenant, as part of the Operating Costs, the Tenant shall keep the Leased
Premises and, without limitation, the inside and outside of all glass, windows
and doors of the Leased Premises, and all interior surfaces of the Leased
Premises, in a neat, clean and sanitary condition and shall not allow any
refuse, garbage or other loose or objectionable or waste material to accumulate
in or about the Leased Premises. The Tenant, if no janitorial service to the
Leased Premises is provided by the Landlord, shall pay for its own janitorial
service. In the event the Tenant fails to clean in accordance with this Section
4.31 upon notice to do so from the Landlord, the Landlord may clean the same and
the Tenant shall pay the cost to the Landlord as additional rent.
4.32 Compliance with Environmental Laws. To comply at its own expense with all
federal, provincial, regional district and municipal laws, regulations,
guidelines and bylaws relating to pollution, Hazardous Substances or the
protection of the environment with respect to the occupation or use of the
Leased Premises and the use of the Common Areas. The Tenant shall take all
necessary precautions so as to ensure that the Land, the Building, the Leased
Premises and any areas surrounding the Land do not and are not likely to have
Hazardous Substances located thereon or therein as a consequence of the
occupation or use of the Leased Premises by the Tenant or of the business
carried on in the Leased Premises or of any actions or failures to act by the
Tenant its employees, officers, directors, invitees or licensees. The Tenant
shall not at any time cause or allow any Hazardous Substances to be generated,
created, used, stored, treated, transferred, transported or disposed of on the
Land, the Building or the Leased Premises except in compliance with all the
laws, after obtaining the prior consent of the Landlord and pursuant to the
terms of this Lease. The Landlord may impose any conditions that it considers
reasonably necessary (including the requirement that monies be posted as
security for the performance of the Tenant's obligations) to protect the Land,
the Building and the Leased Premises.
4.33 Reports. To make, obtain and deliver to the Landlord copies of all reports
and studies required by the Landlord and by governmental authorities having
jurisdiction regulating the manufacture, use, storage, transportation or
disposal of Hazardous Substances by the Tenant. The Tenant shall conform to the
procedures adopted by the Landlord from time to time for the management of risks
associated with Hazardous Substances, including without limiting the generality
of the foregoing, conducting or participating in the conduct of audits of
environmental matters to confirm compliance with the requirements of this Lease
and all laws, adopting and following reasonable plans for the proper handling
and storage of Hazardous Substances, maintaining records of storage and use of
Hazardous Substances, notifying the Landlord of any changes in storage or
handling of Hazardous Substances, and providing to the Landlord all reports as
required form time to time.
4.34 Audit and Remedial Action. To take any remedial action which the Landlord
or any authority requires be taken with regard to Hazardous Substances that are
the responsibility of the Tenant and the Tenant shall permit the Landlord, its
employees and agents, including its consultant, to have access to the Leased
Premises to test the same and comply with the requirements of any authority with
respect to Hazardous Substances. The Tenant within 10 days after demand by the
Landlord shall pay to the Landlord as additional rent the amount allocated to
the Tenant by the Landlord, acting reasonably, of the costs of the audit and (if
the remedial action was in respect of Hazardous Substances the existence of
which on or in the Land, the Building or the Leased Premises was caused or
contributed to by the Tenant, its officers, directors, employees, invitees or
licensees) of any remedial action with respect to such Hazardous Substances.
15
4.35 Indemnity. To indemnify, defend and save harmless the Landlord from and
against any and all costs, damages, losses, liability, fees, penalties and
charges incurred by, assessed against or imposed upon the Landlord or its
officers, directors, employees or agents (including legal costs) as a result of
the Tenant's use, disposal, transportation, generation and/or sale of Hazardous
Substances and in respect of any contamination of the Land, the Building, the
Leased Premises and any area or areas surrounding the Land caused or contributed
to by the Tenant, its officers, directors, employees, invitees or licensees.
4.36 Survival. That the obligations of the Tenant hereunder related to Hazardous
Substances, and all indemnities of the Tenant hereof, shall survive the expiry
or earlier termination of this Lease.
4.37 Parking. To use the parking lot and the multi-storied parkade of the
Building, including entrances, ramps and lanes but excluding those portions
thereof which constitute any areas allocated to a tenant or licensee on a
seasonal or temporary basis (together, the "Parking Areas") only as designated,
allocated and regulated by the Landlord. The Landlord may designate certain
parking spaces as visitors' parking spaces, and other parking spaces for the
exclusive use of certain tenants. During the Term of the Lease the Tenant shall
have the right to park the number of vehicles set out in Section 1.01(l) (the
"Allowed Number of Vehicles") in the Parking Areas as designated by the Landlord
and as directed by the Landlord from time to time and the Tenant's
representatives and employees shall park only as directed by the Landlord and
shall not be allowed to park in the parking spaces designated for the exclusive
use of other tenants or as visitors' parking spaces whether they are rented,
metered, coin operated, or free of any charge. The Landlord is entitled to rent,
meter or otherwise charge for the use of visitors' parking by the customers of
the Building and to remove unauthorised vehicles (including those of the
Tenant's representatives and employees) from the Parking Areas at the expense of
the owner of the vehicle. The Tenant shall follow all parking regulations set by
the Landlord including, but not limited to, maximum parking time allowed (if
any), limitations of maximum vehicle size, weight, etc. The Landlord reserves
the right to close or restrict by electronic means or otherwise the use of the
Parking Areas after Normal Business Hours. Overnight parking in the Parking
Areas is prohibited.
The right to use the Parking Areas constitutes a bare license to occupy space
for parking purposes only and the Landlord shall have no liability or
responsibility for any damage, loss, cost, expense or injury of whatsoever
nature suffered or incurred by the Tenant, its servants, representatives,
employees, invitees or licensees. In the case a Valet Parking System is adopted
as specified in Section 4.38, the only responsibility of the Landlord shall be
to ensure that the parking operator carries adequate insurance as required in
Sub-section 4.38(a). In consideration for the Landlord granting to the Tenant
the license to park its vehicle(s) in the Parking Areas, the Tenant shall pay to
the Landlord as rent for each of the Allowed Number of Vehicles on the first day
of each month the amounts specified in Section 1.01(m), such amounts to be
adjusted annually, by the Landlord acting reasonably, to the prevailing rent in
the open market then being charged for parking rights in Burnaby.
4.38 Valet Parking System. The Landlord shall have the right to implement a
valet parking system (the "Valet Parking System") for the Parking Areas provided
that:
(a) it shall be operated by a reputable parking operator which shall carry
such insurance in respect of its operations as the Landlord, acting
reasonably, requires to protect the interest of the Tenant and of its
servants, representatives, employees, invitees or licensees; and
(b) there shall be no additional charge to the Tenant or its
representatives or employees above the amounts set out in Section
1.01(m).
The Tenant will cooperate and will cause its representatives and employees to
cooperate with the procedures implemented by the operator of the Valet Parking
System, which may include leaving keys to vehicles with the operator so that
they may be parked by the operator and moved to other locations within the
Parking Areas by the operator. The Landlord will have the right to terminate any
Valet Parking System in which event the Tenant will be entitled to park pursuant
to Sections 1.01(l) and 4.37 and as directed by the Landlord.
ARTICLE 5
LANDLORD'S COVENANTS
5.00 Landlord Covenants. The Landlord covenants with the Tenant as follows:
5.01 Quiet Enjoyment. Subject to the terms of this Lease, if the Tenant pays the
rent and observes and performs all the terms, covenants and conditions on the
Tenant's part in this Lease contained, the Tenant will quietly hold and enjoy
the Leased Premises for the Term without interruption by the Landlord except as
permitted by this Lease.
5.02 H.V.A.C. To provide heating, ventilating and, if the Leased Premises are
equipped with air conditioning equipment, air conditioning of the Leased
Premises to an extent sufficient to maintain a reasonable temperature therein at
all times during Normal Business Hours, and during any additional time as the
Landlord may decide from time to time, except when prevented from doing so by
any cause beyond the Landlord's reasonable control and except during the making
of repairs. Should the Landlord be temporarily in default under this Section
5.02, it shall not be liable for indirect or consequential damages or damages
for personal discomfort or illness.
5.03 Elevators. To furnish for use by the Tenant and its employees and invitees
in common with other persons entitled thereto passenger elevator service to the
floor where the Leased Premises are located except when the elevators become
inoperative for any reason beyond the Landlord's reasonable control or because
of repairs or when the elevators become damaged or destroyed, in which case the
Landlord shall have a reasonable time within which to repair such damage or
replace such elevators and the Landlord shall repair or replace the same as soon
as reasonably possible. Should the Landlord be temporarily in default under this
Section 5.03, it shall not be liable for indirect or consequential damages or
damages for personal discomfort or illness.
5.04 Use of Common Areas. To permit the Tenant and its employees and invitees to
use during Normal Business Hours and, subject to the restrictions set forth in
Section 4.25, outside Normal Business Hours, in common with others entitled
thereto, of the common entrances, lobbies, stairways and corridors of the
Building giving access to the Leased Premises.
5.05 Washrooms. Unless the Leased Premises are equipped with washroom(s), to
permit the Tenant and its employees and invitees in common with others entitled
thereto to use the public washrooms in the Building on the floor(s) in which the
Leased Premises are situate.
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5.06 Maintenance of Common Areas. To cause the elevators, common entrances
lobbies, stairways, corridors, washrooms and other parts of the Building from
time to time provided for common use and enjoyment to be cleaned or otherwise
maintained in keeping with good management practice.
5.07 Janitor Service. If janitorial services to the Leased Premises are provided
for by the Landlord, to cause when reasonably necessary, and at reasonable
intervals, the vacuuming of all carpets, the sweeping and/or mopping of hard
surface floorings, the dusting of desks, tables and other furniture of the
Tenant to a height from the floor not to exceed 6'6", the cleaning of both sides
of any glazing walls within the Leased Premises and of the interior face of the
exterior windows and of the perimeter glazed walls, and the emptying of the
Tenant's litter cans and ashtrays. All other janitorial and cleaning services to
the Leased Premises as they are required by the Tenant from the Landlord from
time to time, or as they become necessary should the Tenant fail to comply with
Section 4.16, shall be provided as Additional Services. The Landlord shall not
be responsible for any act of omission or commission on the part of persons
employed to perform such work.
ARTICLE 6
REPAIR, DAMAGE AND DESTRUCTION, ALTERATIONS
6.01 Landlord's Repairs. The Landlord covenants with the Tenant to keep in a
good and reasonable state of repair, and consistent with the general standards
of comparable commercial buildings in the City of Burnaby:
(a) the Building (other than the Leased Premises and premises of other
tenants) including the foundation, roof, exterior walls (excluding glass
portions thereof), the systems for heating, ventilating, air conditioning
and interior climate control, the Common Areas and the systems provided for
bringing Utilities to the Leased Premises; and
(b) the structural members or elements of the Leased Premises.
6.02 Tenant's Repairs. The Tenant covenants with the Landlord:
(a) to keep in a good and reasonable state of repair and consistent with
the general standards of comparable commercial buildings in the City of
Burnaby, but subject to Section 6.03(b) the Leased Premises including all
Leasehold Improvements, and leasehold improvements installed in the Leased
Premises by the Landlord or by previous tenants, and all trade fixtures
including all glass portions of exterior and demising walls, but with the
exception of structural members or elements of the Leased Premises and
defects in construction performed or installations made by the Landlord and
Insured Damage therein;
(b) that the Landlord may enter and view the state of repair, and that the
Tenant will repair according to notice in writing, and that the Tenant will
leave the Leased Premises in a good and reasonable state of repair, subject
always to the exceptions referred to in Section 6.02(a);
(c) that if any part of the Building including the systems for heating,
ventilating, air conditioning and interior climate control and for the
provision of utilities becomes out of repair, damaged or destroyed through
the negligence or misuse of the Tenant or its employees, invitees or others
over which the Tenant can reasonably be expected to exercise control, the
expense of repairs or replacements thereto necessitated thereby shall be
reimbursed to the Landlord promptly upon demand; and
(d) that in case it shall become necessary or proper at any time from
accident or for improving the condition or operation of the elevators,
heating, ventilating and air conditioning apparatus, electric lighting,
boilers or machinery, or anything pertaining thereto, to omit the operation
of the elevators, heating, ventilating and air conditioning apparatus or
electric lighting until necessary repairs or improvements shall have been
made and completed, the Landlord shall be at liberty to do so without in
any manner or respect affecting the obligations of the Tenant under this
Lease.
6.03 Abatement and Termination. It is agreed between the Landlord and the Tenant
that:
(a) in the event of damage to the Leased Premises or to the Building and if
the damage is such that the Leased Premises or any substantial part thereof
is rendered not reasonably capable of use and occupancy by the Tenant for
the purposes of its business for any period of time in excess of ten days,
then:
(i) unless the damage was caused by the fault or negligence of the
Tenant or its employees or others under its control, from and after
the date of occurrence of the damage and until the Leased Premises are
again reasonably capable of use and occupancy as aforesaid, rent shall
xxxxx from time to time in proportion to the part or parts of the
Leased Premises not reasonably capable of such use and occupancy, and
(ii) unless this Lease is terminated as hereinafter provided, the
Landlord or the Tenant, as the case may be (according to the nature of
the damage and their respective obligations to repair as provided in
Section 6.01 and 6.02) shall repair such damage with all reasonable
diligence, but to the extent that any part of the Leased Premises is
not reasonably capable of such use and occupancy by reason of damage
which the Tenant is obligated to repair hereunder, any abatement of
rent to which the Tenant is otherwise entitled hereunder shall not
extend later than the time by which, in the reasonable opinion of the
Landlord, repairs by the Tenant ought to have been completed with
reasonable diligence; and
(b) if premises whether of the Tenant or other tenants of the Building
comprising in the aggregate half or more of the Rentable Area of the
Building, are substantially damaged or destroyed by any cause to the extent
such that in the reasonable opinion of the Landlord they cannot be repaired
or rebuilt within 180 days after the occurrence of the damage or
destruction, the Landlord may at its option, exercisable by written notice
to the Tenant given within 30 days after the occurrence of such damage or
destruction, terminate this Lease, in which event neither the Landlord nor
the Tenant shall be bound to repair as provided in Sections 6.01 and 6.02,
and the Tenant shall instead deliver up possession of the Leased Premises
to the Landlord with reasonable expedition but in any event within 60 days
after delivery of such notice of termination, and rent shall be apportioned
and paid to the date upon which possession is so delivered up (but subject
to any abatement to which the Tenant may be entitled under Section 6.03(a)
by reason of the Leased Premises having been rendered in whole or in part
not reasonably capable of use and occupancy), but otherwise the Landlord or
the Tenant as the case may be (according to the nature of the damage and
their respective obligations to repair as provided in Sections 6.01 and
6.02) shall repair such damage with reasonable diligence.
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6.04 Landlord's Alterations. The Landlord reserves the right to undertake and
complete at any time:
a) any alterations or improvements of the Building that, in the Landlord's
opinion, are necessary for, or useful to, the safety, efficiency,
modernization, comfort or decor of the Building, including, but not limited
to, elevators, plumbing, electrical and mechanical systems, of all or some
of the leased premises (including, or not including, the Leased Premises)
and/or vacant premises for the purpose of making them suitable for lease.
For the purpose of the design and construction of these works and
improvements, the Landlord or its contractors may, if necessary, enter
into, pass through, and work upon the Leased Premises, and may improve,
remodel, alter (including changing the location of entrance doors) and add
to the Leased Premises, putting the Tenant to no unnecessary inconvenience;
and
b) the installation and maintenance within the Leased Premises of utility
lines, pipes, ducts, vents and conduits to be located above the suspended
ceilings of the Leased Premises and/or to run in the interior of framed
walls, to serve the Leased Premises or other premises.
By exercising any such rights, the Landlord shall not be deemed to have
constructively evicted the Tenant or otherwise to be in breach of this Lease nor
shall the Tenant, provided the Landlord does not put the Tenant to any
unnecessary inconvenience, be entitled to any abatement of rent or other
compensation from the Landlord. Without limiting the generality of the
foregoing, the Landlord, in the case of any works, improvements, or
installations within the Leased Premises (other than for emergency repair)
shall:
1) give the Tenant reasonable notice inclusive of a description of the
work, improvement, or installation to be carried out;
2) work after Normal Business Hours whenever reasonably required;
3) finish any work, improvement, or installation in a good and
workmanlike manner; and
4) leave the affected areas of the Leased Premises clean and in good
order.
6.05 Relocation of Leased Premises. The Landlord reserves the right at any time,
upon giving the Tenant written notice at least 30 days in advance, to provide
the Tenant with other premises (the "New Premises") in the Building in
substitution of the Leased Premises (whether or not any part of the Leased
Premises form part of the New Premises). The New Premises:
a) shall contain at least the same Rentable Area of the Leased
Premises,
b) shall have a configuration reasonably similar to that of the
Leased Premises, and
c) shall be improved to equivalent or better standards than the
Leased Premises.
The Tenant agrees to move to the New Premises and the Landlord will pay for any
reasonable cost of moving the Tenant's property and equipment from the Leased
Premises to the New Premises. As full compensation for all other costs,
expenses, damages (including disruption and loss of business), nuisance or
discomfort which the Tenant may incur or suffer, Basic Rent for the New Premises
for the first two months of occupancy will xxxxx.
Upon relocation, the Tenant will surrender the Leased Premises to the Landlord
in the condition required by this Lease and this Lease will be deemed to be
amended as follows:
a) by the substitution for the current Schedule "A" of another plan
prepared by the Landlord and marked Schedule "A" which shows the
New Premises,
b) by the substitution in Section 1.01(d) of the Rentable Area of
the Leased Premises with the Rentable Area of the New Premises,
and
c) by the substitution in Section 1.01(g) of the rate or rates per
square foot per annum with new rate(s) determined in a manner
that, notwithstanding any possible greater Rentable Area of the
New Premises, the annual and monthly Basic Rents shown in such
section will not change.
All references in this Lease to the Leased Premises shall be deemed to refer to
the New Premises.
If required by the Landlord the Tenant shall execute an agreement prepared by
the Landlord providing for the above described amendments.
This Lease, as amended, will continue in force and effect as a lease of the New
Premises for the balance of the Term.
ARTICLE 7
UTILITIES AND ADDITIONAL SERVICES
7.01 Water and Telephone. The Landlord shall furnish appropriate ducts for
bringing telephone services to the Leased Premises and shall provide water to
washrooms available for the Tenant's use in common with others entitled thereto.
7.02 Electricity. The Landlord, acting reasonably, shall allocate the cost of
light and power supplied to the Building and the cost of cleaning, maintaining,
replacing and servicing in all respects all electric lighting fixtures and
facilities in the Building to:
(a) Electrical power consumption costs for premises designated for
warehouse use;
(b) Electrical servicing costs for premises designated for warehouse use;
(c) Electrical power consumption costs for premises designated for office
use;
(d) Electrical servicing costs for premises designated for office use;
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(e) Electrical power consumption costs and electrical servicing costs for
Common Areas allocated to the portion of the Building designated for
warehouse use; and
(f) Electrical power consumption costs and electrical servicing costs for
Common Areas allocated to the portion of the Building designated for
office use.
If some but not all of the leased and leaseable premises are separately metered,
or not occupied, so that there is a reduction in the electrical consumption
costs or electrical servicing costs, the amount of such reduction shall be
allocated to the Landlord with the intent that the Tenant would be in
substantially the same position as if there were no separate meters and the
Building was fully occupied. Wherever, in the Landlord's reasonable opinion, any
cost or expense included in electrical power consumption costs or electrical
servicing costs properly relates only to a tenant or a group of tenants of the
Building, the Landlord may charge such cost or expense directly to such tenant
or group of tenants. Any cost or expense so charged to the Tenant shall be
payable by the Tenant upon demand by the Landlord.
Without duplication, the Tenant shall pay to the Landlord on the date for
payment established by the Landlord, the Tenant's Proportionate Share of
electrical power consumption costs and electrical servicing costs for the Common
Areas allocated to premises designated for either warehouse or office use, or
both, depending upon the use designated for the Leased Premises.
If the Leased Premises are not separately metered, the Tenant shall pay to the
Landlord on the date for payment established by the Landlord, the Tenant's
Proportionate Share of electrical power consumption costs and electrical
servicing costs for premises designated for either warehouse or office use, or
both, depending upon the use designated for the Leased Premises.
If the Leased Premises are separately metered by the utility company, the Tenant
shall pay, on or prior to the due date for payment, directly to the utility
company any charges metered to the Leased Premises; if the Leased Premises are
separately metered by the Landlord, the Tenant shall pay to the Landlord as
additional rent on the first day of each month any charges metered to the Leased
Premises and, in either case, the Tenant shall at its own cost, clean, maintain,
replace and service the electrical lighting fixtures in the Leased Premises.
7.03 Additional Services. The Landlord may, by way of Additional Services:
a) in addition to the janitorial or cleaning services which are
normally supplied by the Landlord to the tenants generally,
provide any cleaning services to the Leased Premises deemed
necessary or appropriate by the Landlord and any additional
janitorial or cleaning services required by the Tenant;
b) move or supervise the moving of furniture or equipment of the
Tenant;
c) carry out or supervise repairs or alterations conducted within
the Leased Premises;
d) supervise deliveries to and from the Leased Premises; and
e) if requested by the Tenant, supply or supervise the supply to the
Tenant of any other service not normally furnished to tenants
generally.
The cost of Additional Services provided to the Tenant shall be paid to the
Landlord as additional rent by the Tenant from time to time promptly upon
receipt of invoices therefor from the Landlord.
7.04 Alteration. Where the Landlord is required by law or a competent authority
to make alterations to the Leased Premises, then in each year of the Term after
completion of such alterations (but not after the cost thereof has been repaid
to the Landlord), the Tenant shall pay to the Landlord 10% of the cost to the
Landlord of making such alterations, and if the Landlord is required to make
similar alterations to other portions or areas of the Building the cost of so
doing shall be reasonably apportioned by the Landlord to each of the premises.
ARTICLE 8
LICENSES, ASSIGNMENTS AND SUBLETTING
8.01 Licenses, Etc. The Tenant shall not suffer or permit any part of the Leased
Premises to be used or occupied by any persons other than the Tenant, any
subtenants permitted under Section 8.02 and the employees of the Tenant and any
such permitted subtenant, or suffer or permit any part of the Leased Premises to
be used or occupied by any licensee or concessionaire, or suffer or permit any
persons to be upon the Leased Premises other than the Tenant, such permitted
subtenants and their respective employees, customers and others having lawful
business with them.
8.02 Assignments and Subletting. The Tenant shall not assign, mortgage or
otherwise encumber or transfer this Lease or sublet the Leased Premises or any
part thereof without having obtained the Landlord's prior written consent. The
Landlord may withhold its consent arbitrarily to a proposed assignment of this
Lease or sublease of the Leased Premises or any part thereof if it elects to
exercise its right of termination hereinafter set forth. If such termination
right is not exercised, the Landlord covenants not to withhold its consent
unreasonably as to any assignee or sublessee who is in satisfactory financial
condition, agrees to use the Leased Premises for the purposes and in the manner
permitted and specified hereunder, and is otherwise satisfactory to the
Landlord. No partial assignment shall be permitted.
The Tenant shall not assign this Lease or sublet the Leased Premises or any part
thereof unless:
a) it shall have received or procured a bona fide written offer to
take an assignment or sublease which is not inconsistent with
this Lease, and the acceptance of which would not breach any
provision of this Lease; and
b) it shall have first requested and obtained the consent in writing
of the Landlord thereto.
Any request for consent shall be in writing and accompanied by a true copy of
the offer, all information available to the Tenant and requested by the Landlord
as to the responsibility, financial standing and business of the proposed
assignee or subtenant and payment of such amount as the Landlord reasonably
requires to reimburse it for its time and expense in considering the request for
consent. Notwithstanding the provisions of subsection (a), within 10 days after
the receipt by the Landlord of such request for consent and of all information
which the Landlord shall have requested hereunder, the Landlord shall have the
right upon written notice of termination submitted to the Tenant, if the request
is to assign this Lease or sublet the Leased Premises, to cancel and terminate
this Lease as of a
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termination date to be stipulated in the notice of termination which shall be
not less than 60 days or more than 90 days following the giving of such notice.
In such event the Tenant shall surrender the Leased Premises in accordance with
such notice of termination and rent and additional rent shall be apportioned and
paid to the date of surrender. If such consent shall be given, the Tenant shall
assign or sublet, as the case may be, only upon the terms set out in the offer
submitted to the Landlord. No assignment or subletting of this Lease shall be
effective unless the assignee or sublessee shall execute an assumption agreement
on the Landlord's form, prepared at the expense of the Tenant, assuming all the
obligations of the Tenant hereunder. The Tenant agrees that any consent to an
assignment or subletting of this Lease or Leased Premises shall not thereby
release the Tenant of its obligations hereunder. The consent by the Landlord to
an assignment or subletting, if granted, shall not constitute a waiver of the
necessity for the Tenant to obtain the prior written consent of the Landlord to
a subsequent assignment or subletting.
Without limitation, the Tenant shall for the purpose of this Lease be considered
to assign or sublet in any case where it permits the Leased Premises or any
portion thereof to be, or the Leased Premises or any portion thereof are,
occupied by persons other than the Tenant, its employees and others engaged in
carrying on the business of the Tenant, whether pursuant to assignment,
subletting, parting with or sharing possession, license or other right, or where
any of the foregoing occurs by operation of law.
8.03 Change in Control of Tenant. If the Tenant is a private corporation and if
by the sale or other disposition of its shares or securities the control or the
beneficial ownership of such corporation is changed at any time during the Term
of this Lease, such change shall be deemed to be an assignment of the Lease
within the meaning of Section 8.02. If such control or beneficial ownership is
changed without the prior written consent of the Landlord, the Landlord may, at
its option, treat such change as an event of default and, without limiting the
Landlord's other remedies, the Landlord may terminate this Lease upon 60 days
notice to the Tenant.
ARTICLE 9
FIXTURES AND IMPROVEMENTS
9.01 Installation of Fixtures and Improvements. The Tenant will not install or
alter any Leasehold Improvements or trade fixtures in the Leased Premises
without the Landlord's prior written approval. All Leasehold Improvements will,
upon affixation, become the property of the Landlord without compensation
therefor to the Tenant. In installing or altering any Leasehold Improvements or
trade fixtures, the Tenant shall obtain all required building and occupancy
permits and shall not alter or interfere with any installations which have been
made by the Landlord without the prior written approval of the Landlord. The
Tenant's request for any approval hereunder shall be in writing and accompanied
by an adequate description of the contemplated work and, where appropriate,
working drawings. All work to be performed in the Leased Premises shall be
performed by competent contractors and subcontractors of whom the Landlord shall
have approved (such approval not to be unreasonably withheld, but provided that
the Landlord may require that the Landlord's contractors and subcontractors be
engaged for any mechanical or electrical work). All such work shall be subject
to inspection by and the reasonable supervision of the Landlord, and shall be
performed in accordance with any reasonable conditions or regulations imposed by
the Landlord and completed in a good and workmanlike manner in accordance with
the description of the work approved by the Landlord. Should the Landlord supply
and install any leasehold improvements for the Tenant at the Tenant's cost, the
Tenant shall repay such costs to the Landlord as additional rent.
9.02 Liens and Encumbrances on Fixtures and Improvements. In connection with the
installation or alteration of Leasehold Improvements and trade fixtures and all
other work or installations made by or for the Tenant in the Leased Premises,
the Tenant shall comply with all the provisions of the Builders' Lien Act
(British Columbia) and other statutes from time to time applicable thereto and,
except as to any hold-back, shall promptly pay all accounts relating thereto.
The Tenant will not create any security interest, mortgage, conditional sale
agreement or other encumbrance in respect of its Leasehold Improvements or trade
fixtures, permit any such security interest, mortgage, conditional sale
agreement or other encumbrance to attach to the Leased Premises, or permit any
"notice of security interest" or other similar notice to be filed against the
Land or this Lease. If any builders' or other lien for work, labour, services or
materials supplied to or for the Tenant or for the cost of which the Tenant may
be in any way liable or claims therefor shall arise or be filed or any such
security interest, mortgage, conditional sale agreement or other encumbrance
shall attach, or any such notice be filed against the Land or this Lease, the
Tenant shall within 20 days after receipt of notice thereof discharge it, and
any certificates of action registered in respect of any lien, by payment or
giving security or in such other manner as may be required or permitted by law.
If the Tenant does not do so, the Landlord may in addition to all other remedies
hereunder avail itself of its remedy under Section 13.01 and may make any
payments required to procure the discharge of any such liens or encumbrances.
The Landlord shall be entitled to be reimbursed by the Tenant as provided in
Section 13.01, and its right to reimbursement shall not be affected or impaired
if the Tenant shall then or subsequently establish or claim that any lien or
encumbrance so discharged was without merit or excessive or subject to any
abatement, set-off or defence. This section shall not prevent the Tenant from
mortgaging or encumbering its chattels, furniture or equipment not of the nature
of fixtures.
9.03 Removal of Fixtures and Improvements. Except to the extent otherwise
expressly agreed by the Landlord in writing, no Leasehold Improvements, trade
fixtures, furniture or equipment shall be removed by the Tenant from the Leased
Premises either during or at the expiration or sooner termination of the Term
except that (1) the Tenant may at the end of the Term remove its trade fixtures,
(2) the Tenant shall at the end of the Term remove such of its Leasehold
Improvements and trade fixtures as the Landlord shall require to be removed, and
(3) the Tenant may remove its furniture and equipment at the end of the Term,
and also during the Term in the usual and normal course of its business where
such furniture or equipment has become excess for the Tenant's purposes or the
Tenant is substituting therefor new furniture and equipment. The Tenant shall,
in the case of every removal either during or at the end of the Term, make good
any damage caused to the Leased Premises or the Building by the installation and
removal.
ARTICLE 10
INSURANCE AND LIABILITY
10.01 Landlord's Insurance. The Landlord shall take out and keep in force during
the Term insurance with respect to the Building. The insurance to be maintained
by the Landlord shall be in respect of perils and in amounts and on terms and
conditions which from time to time are insurable at a reasonable premium and
which are normally insured by reasonably prudent owners of properties similar to
the Building. The perils to be insured against by the Landlord shall include,
without limitation, comprehensive general liability, boilers and machinery, fire
and extended perils, and losses suffered by the Landlord in its capacity as
Landlord through business interruption.
10.02 Tenant's Insurance. The Tenant shall take out and keep in force during the
Term:
(a) comprehensive general public liability (including bodily injury, death
and property damage) insurance on an occurrence basis with respect to the
business carried on, in or from the Leased Premises and the Tenant's use
and occupancy
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thereof of not less than $2,000,000.00 per occurrence which insurance shall
include the Landlord as a named insured and shall protect the Landlord in
respect of claims by the Tenant as if the Landlord were separately insured;
(b) insurance, for the full replacement cost in respect of fire and such
other perils, including sprinkler leakage as are from time to time defined
in the usual extended coverage endorsement covering the Leasehold
Improvements and the Tenant's trade fixtures and the furniture and
equipment of the Tenant, and which insurance shall include the Landlord as
a named insured as the Landlord's interest may appear with respect to
insured Leasehold Improvements and provide that any proceeds recoverable in
the event of loss to Leasehold Improvements shall be payable to the
Landlord, but the Landlord agrees to make available such proceeds toward
the repair or replacement of the Leasehold Improvements if this Lease is
not terminated pursuant to any other provision hereof; and
(c) tenant's fire legal liability insurance in an amount not less than the
replacement cost of the Leased Premises.
All insurance required to be maintained by the Tenant hereunder shall be on
terms and with insurers to which the Landlord has no reasonable objection,
shall provide that such insurers shall provide to the Landlord 30 days
prior written notice of cancellation or material alteration of such terms
and shall waive any right of subrogation against the Landlord. The Landlord
may require the Tenant to furnish certificates or other evidence acceptable
to the Landlord as to the insurance from time to time required to be
effected by the Tenant and its renewal or continuation in force.
10.03 Limitation of Landlord's Liability. The Tenant agrees that the Landlord
shall not be liable for any bodily injury or death or loss or damage to any
property belonging to the Tenant or its employees, invitees, or licensees or any
other person in, on or about the Building unless resulting from the willful
misconduct or gross negligence of the Landlord, but in no event shall the
Landlord be liable:
(a) for any damage other than Insured Damage which is caused by steam,
water, rain or snow which may leak into, issue or flow from any part of the
Building or from the pipes or plumbing works (including sprinklers, if any)
thereof or from any other place or quarter or for any damage caused by or
attributable to the condition or arrangement of any electric or other
wiring or for any damage caused by anything done or omitted by any other
tenant;
(b) for any act or omission (including theft, malfeasance or negligence) on
the part of any contractor from time to time employed by it to perform
janitor services, security services, supervision or any other work in or
about the Leased Premises of the Building;
(c) for loss or damage, however caused, to money, securities, negotiable
instruments, paper or other valuables of the Tenant;
(d) for any damages for personal discomfort or illness resulting from the
operation or non-operation of the Building ventilating and/or air
conditioning system or of any other equipment or machinery in the Building
or on the Land, including but not limited to elevators, or the interruption
of any public utility;
(e) for any business interruption or loss; or
(f) for indirect or consequential damages.
10.04 Limitation of Tenant's Liability. The Landlord releases the Tenant from
all claims or liabilities in respect of any damage which is Insured Damage, to
the extent of the cost of repairing such damage, but not from injury, loss or
damage which is consequential thereto or which arises therefrom where the Tenant
is negligent or otherwise at fault.
10.05 Indemnity of Landlord. Except as provided in Section 10.04 the Tenant
agrees to indemnify and save harmless the Landlord in respect of all claims for
bodily injury or death, property damage or other loss or damage arising from the
conduct of any work by or any act or omission of the Tenant or any assignee,
subtenant, agent, employee, contractor, invitee or licensee of the Tenant, and
in respect of all costs, expenses and liabilities incurred by the Landlord in
connection with or arising out of all such claims, including the expenses of any
action or proceeding pertaining thereto, and in respect of any loss, cost,
expense or damage suffered or incurred by the Landlord arising from any breach
by the Tenant of any of its covenants and obligations under this Lease. This
indemnity shall survive the expiration or termination of this Lease.
ARTICLE 11
SUBORDINATION, ATTORNMENT, REGISTRATION AND CERTIFICATES
11.00 The Tenant agrees with the Landlord that:
11.01 Sale or Financing of Building. The rights of the Landlord under this Lease
may be mortgaged, charged, transferred or assigned to a purchaser or to a
mortgagee, or trustee for bond holders and in the event of a sale or of default
by the Landlord under any mortgage, trust deed or trust indenture and the
purchaser, mortgagee or trustee, as the case may be, duly entering into
possession of the Building or the Leased Premises, the Tenant agrees to attorn
to and become the Tenant of such purchaser, mortgagee or trustee under the terms
of this Lease.
11.02 Subordination and Attornment. This Lease and all rights of the Tenant
hereunder are subject and subordinate to all mortgages, debentures, trust deeds
or trust indentures now or hereafter existing which may now or hereafter affect
the Building and to all renewals, modifications, consolidations, replacements
and extensions thereof. Whenever requested by any mortgagee (including any
trustee under a debenture, trust deed or trust indenture), the Tenant shall
attorn to such mortgagee as the tenant upon all the terms of this Lease. The
Tenant agrees to execute promptly whenever requested by the Landlord or by such
mortgagee an instrument of subordination or attornment, as the case may be, as
may be required of it, provided however that such mortgagee or their respective
successors or assigns in favour of which such attornment has been made, shall
recognize this Lease and the rights of the Tenant hereunder so long as the
Tenant shall not be in default in the performance of its obligations under this
Lease.
11.03 Registration. The Tenant covenants and agrees with the Landlord not to
register this Lease, and that the Landlord is not obliged to deliver this Lease
in registrable form.
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11.04 Certificates. The Tenant agrees with the Landlord that the Tenant shall
promptly, whenever requested by the Landlord from time to time, execute and
deliver to the Landlord (and if required by the Landlord, to any mortgagee
{including any trustee under a trust deed or trust indenture} or intended
purchaser designated by the Landlord) a certificate in writing as to the then
status of this Lease, including as to whether it is in full force and effect, is
modified or unmodified, confirming the rental payable hereunder and the state of
the accounts between the Landlord and Tenant, the existence or non-existence of
defaults, and any other matters pertaining to this Lease as to which the
Landlord shall request a certificate.
11.05 Assignment by Landlord. If the Landlord sells the Building or a portion
thereof containing the Leased Premises or assigns this Lease or any interest of
the Landlord hereunder, then to the extent that such purchaser or assignee has
assumed the covenants and obligations of the Landlord hereunder, the Landlord
shall, without further written agreement, be freed and relieved of liability
upon such covenants and obligations.
ARTICLE 12
UNAVOIDABLE DELAYS AND ACCEPTANCE OF PAYMENTS
12.01 Unavoidable Delay. Except as herein otherwise expressly provided, if and
whenever and to the extent that either the Landlord or the Tenant shall be
prevented, delayed or restricted in the fulfilment of any obligations hereunder,
in respect of the supply or provisions of any service or utility, the making of
any repair, the doing of any work or any other thing (other than the payment of
rent or other moneys due) by reason of strikes or work stoppages, or being
unable to obtain any material, service, utility or labour required to fulfil
such obligations or by reason of any statute, law or regulation or inability to
obtain any permission from any governmental authority having lawful jurisdiction
preventing, delaying or restricting such fulfilment, or by reason of other
unavoidable occurrence, the time for fulfilment of such obligation shall be
extended during the period in which such circumstance operates to prevent, delay
or restrict the fulfilment thereof, and the other party to this Lease shall not
be entitled to compensation for any inconvenience, nuisance or discomfort
thereby occasioned; but nevertheless the Landlord will use its reasonable
efforts to maintain services essential to the use and enjoyment of the Leased
Premises.
12.02 No Admission. The acceptance of any rent from or the performance of any
obligation hereunder by a person other than the Tenant shall not be construed as
an admission by the Landlord of any right, title or interest of such person as a
subtenant, assignee, transferee or otherwise in the place of the Tenant.
12.03 Part Payment. The acceptance by the Landlord of a part payment of any sums
required to be paid hereunder shall not constitute a waiver or release of the
right of the Landlord to payment in full of such sums.
ARTICLE 13
REMEDIES OF LANDLORD'S AND TENANT'S DEFAULT
13.01 Remedying by Landlord, Non-Payment and Interest. In addition to all rights
and remedies available to the Landlord in the event of any default hereunder by
the Tenant either by any other provisions of this Lease or by statute or the
general law the Landlord:
(a) shall have the right at all times to remedy or attempt to remedy any
default of the Tenant, and in so doing may make any payments due or alleged
to be due by the Tenant to third parties and may enter upon the Leased
Premises to do any work or other things therein, and in such event the
Tenant shall pay all expenses of the Landlord in remedying or attempting to
remedy such default forthwith upon demand;
(b) shall have the same rights and remedies in the event of any non-payment
by the Tenant of any amounts payable by the Tenant under any provisions of
this Lease as in the case of a non-payment of rent; and
(c) if the Tenant shall fail to pay any rent or other amount from time to
time payable by it to the Landlord hereunder promptly when due, shall be
entitled, if it shall demand it, to interest thereon at a rate of 5% per
annum in excess of the Prime Rate published from time to time.
13.02 Remedies Cumulative. 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 or by statute or
the general law, all of which rights and remedies are intended to be cumulative
and not alternative.
13.03 Right of Re-entry on Default or Termination. If and whenever the rent
hereby reserved or other sums payable by the Tenant or any part thereof is in
arrears, whether lawfully demanded or not, and the Tenant fails to pay such rent
or other sums within five business days after the Landlord shall have given to
the Tenant notice requiring such payment, or if the Tenant breaches or fails to
observe and perform any of the covenants, agreements, provisos, conditions,
rules or regulations and other obligations on the part of the Tenant to be kept,
observed or performed hereunder, or if this Lease is terminated pursuant to any
provisions hereof, or if the Landlord is entitled to terminate this Lease and
has given notice terminating it pursuant to any provision hereof, then and in
every such case it shall be lawful for the Landlord thereafter to enter into the
Leased Premises to repossess and enjoy as of its former estate.
13.04 Termination and Entry. If and whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease, the
Landlord, in addition to all other rights and remedies, shall have the right to
terminate this Lease forthwith by leaving upon the Leased Premises notice in
writing of such termination.
13.05 Payment of Rent, Etc., on Termination. Upon the giving by the Landlord of
a notice in writing terminating this Lease, whether pursuant to this or any
other provision of this Lease, this Lease shall terminate, rent and any other
payments for which the Tenant is liable under this Lease to the date of such
termination, shall be computed, apportioned and paid in full, and the Tenant
shall immediately deliver up possession of the Leased Premises to the Landlord,
and the Landlord may re-enter and take possession of them, all of the foregoing
being without prejudice to the Landlord's right to claim damages for losing the
benefit of the Lease over its unexpired term.
13.06 Waiver of Distress. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's right of
distress and covenants and agrees that notwithstanding any such statute 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.
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13.07 Re-Letting, Etc. If the Landlord is entitled to re-enter upon the Leased
Premises under any provision of this Lease, then in addition to all other rights
it may have, the Landlord shall have the right as agent of the Tenant to enter
the Leased Premises and re-let them and as agent of the Tenant for such purpose
to make such alterations and repairs as are necessary and hire such real estate
agents at such commission and on such terms as the Landlord shall determine. The
costs of such alterations and repairs and any commission or inducement required
to obtain a tenant on behalf of the Tenant shall be rent payable by the Tenant
on demand by the Landlord. The Landlord shall receive the rent from such
re-letting as the agent of the Tenant and may take possession of any furniture
or other property thereon and sell the same at public or private sale without
notice and apply the proceeds thereof and any rent derived from re-letting the
Leased Premises upon account of the rent due and to become due under this Lease
and the Tenant shall be liable to the Landlord for the deficiency, if any.
13.08 Unclaimed Property. If the Tenant, upon termination or earlier expiration
of this Lease, leaves the Leased Premises without removing all of the Tenant's
chattels and trade fixtures, such chattels and trade fixtures remaining on the
Leased Premises shall be deemed to be abandoned and the Landlord may, without
notice to the Tenant, either remove the same at the cost of the Tenant or take
the same as the Landlord's property without compensation to the Tenant. If the
Landlord removes the chattels and trade fixtures at the cost of the Tenant, the
Landlord shall provide notice to the Tenant at the last known address of the
Tenant that the Tenant may claim the chattels and trade fixtures upon payment of
the Landlord's costs of removal and storage provided that the Tenant claims the
same within three days of the date of the notice. Three days after the date of
the notice the Landlord may dispose of the chattels and trade fixtures if not
then claimed by the Tenant. Unless the Landlord has claimed the chattels and
trade fixtures as its property, the costs of removal, storage and disposition
shall be paid by the Tenant to the Landlord upon demand. If the Landlord stores
the chattels and trade fixtures in property of the Landlord, the Tenant shall
pay to the Landlord a storage fee equal to 5 cents per day per square foot of
Rentable Area occupied by the chattels and trade fixtures.
ARTICLE 14
EVENTS TERMINATING LEASE
14.01 Cancellation of Insurance. If any policy of insurance upon the Building
from time to time effected by the Landlord shall be either cancelled or about to
be cancelled by the insurer by reason of the use or occupation of the Leased
Premises by the Tenant or any assignee, subtenant or licensee of the Tenant or
anyone permitted by the Tenant to be upon the Leased Premises and the Tenant
after receipt of notice in writing from the Landlord fails to take such
immediate steps in respect of such use or occupation as will enable the Landlord
to reinstate or avoid cancellation of (as the case may be) such policy of
insurance, the Landlord may at its option terminate this Lease.
14.02 Bankruptcy, Etc. If the Tenant shall make any assignment for the benefit
of creditors, become bankrupt or insolvent or take the benefit of any statute
now or hereafter in force for bankrupt or insolvent debtors, then in any such
case the Landlord may at its option terminate this Lease and thereupon, in
addition to the payment by the Tenant of rent and other payments for which the
Tenant is liable under this Lease, rent for the current month and the next
ensuing three months' rent shall immediately become due and be paid by the
Tenant.
14.03 Prohibited Occupancy, Etc. In case, without the written consent of the
Landlord, the Leased Premises shall be used by any persons other than the Tenant
or its permitted assigns or subtenants or for any purpose other than that for
which they were leased, or occupied by any persons whose occupancy is prohibited
by this Lease, or if the Leased Premises shall be vacated or abandoned, or
remain unoccupied for 15 days or more while capable of being occupied, or if the
Term or any of the goods and chattels of the Tenant shall at any time be seized
in execution or attachment, or if the Tenant shall make any bulk sale, or (if a
corporation) shall take any steps or suffer any order to be made for its
winding-up or other termination of its corporate existence, then in any such
case the Landlord may at its option terminate this Lease and thereupon, in
addition to the payment by the Tenant of rent and other payments for which the
Tenant is liable under this Lease (if the Landlord has not elected to claim
damages for losing the benefit of the Lease over its unexpired term), rent for
the current month and the next ensuing three months' rent shall immediately
become due and be paid by the Tenant.
ARTICLE 15
MISCELLANEOUS
15.01 Notices. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either mailed by
prepaid registered mail or delivered to the Landlord at the address specified in
Section 1.01 (a) (ii) or telecopied to the Landlord at the fax number specified
in such section and if to the Tenant either delivered to the Tenant by leaving
it at the Leased Premises or mailed by prepaid registered mail addressed to the
Tenant at the Leased Premises or telecopied to the Tenant at the fax number
specified in Section 1.01 (b) (ii). Every such notice shall be deemed to have
been given when delivered or when telecopied or, if mailed as aforesaid, upon
the third day after it was mailed in Canada, provided that, should there be
between the time of mailing and receipt of the notice a mail strike, slowdown or
other labour dispute which might affect the delivery of such notice by the
mails, then such notice shall only be effective if actually delivered. The
Landlord may from time to time by notice in writing to the Tenant designate
another address in Canada and/or another fax number as the address and fax
number to which notices are to be mailed, delivered or telecopied to it. The
Tenant may from time to time by notice in writing to the Landlord designate
another fax number as the fax number to which notices are to be telecopied to
it.
15.02 Extraneous Agreements. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions expressed or
implied relating to this Lease or the Leased Premises save as expressly set out
in this Lease and in any outstanding agreement to lease in writing between the
Landlord and the Tenant pursuant to which this Lease has been executed. All
terms of such agreement to lease shall remain in full force and effect until
fulfilled, except to the extent inconsistent with the provisions of this Lease.
In the event of any inconsistency between the terms of any such outstanding
agreement to lease and this Lease, the terms of this Lease shall prevail. This
Lease may not be modified except by an agreement in writing executed by the
Landlord and the Tenant.
15.03 Severability. Should any part of this Lease be held invalid for any
reason, such invalidity shall not affect the validity of the remainder which
shall continue in force and effect and be construed as if this Lease had been
executed without the invalid portion.
15.04 Time of Essence. Time shall be of the essence of this Lease.
15.05 Area Determination. The Rentable Area of any premises (including the
Leased Premises) or the Building shall be calculated by the Landlord's architect
or surveyor from time to time appointed for the purpose, whose certificate shall
be conclusive. The Landlord shall allocate the area of the Service Areas to the
Rentable Area of the Leased Premises and to the other leased and leasable
premises in
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the Building so as to result in the Landlord obtaining basic rent as if the
whole of the Building had been rented to one tenant, with no deduction from
Rentable Area for recessed entrances or alcoves, for columns or projections,
lobbies or other areas that are Service Areas.
15.06 Successors and Assigns. This Lease and everything herein contained shall
enure to the benefit of and be binding upon the successors and assigns of the
Landlord and the heirs, executors and administrators and the permitted
successors and assigns of the Tenant. Reference to the Tenant shall be read with
such changes in gender as may be appropriate, depending upon whether the Tenant
is a male or female person or a firm or corporation, and if the Tenant is more
than one person or entity, the covenants of the Tenant shall be deemed joint and
several.
15.07 Waiver. No condoning, excluding or overlooking by the Landlord or Tenant
of any default, breach or non-observance by the Tenant or the Landlord at any
time or times in respect of any covenant, proviso or condition herein contained
shall operate as a waiver of the Landlord's or the Tenant's rights hereunder in
respect of any continuing or subsequent default, breach or non-observance or so
as to defeat or affect in any way the rights of the Landlord or the Tenant
herein in respect of any such continuing or subsequent default or breach and no
waiver shall be inferred from or implied by anything done or omitted by the
Landlord or the Tenant save only express waiver in writing.
15.08 Governing Law. This Lease shall be governed by and construed in accordance
with the laws of the Province of British Columbia. The Landlord and the Tenant
agree that all of the provisions of this Lease are to be construed as covenants
and agreements as though the words importing such covenants and agreements are
used in each separate section hereof.
15.09 Captions. The captions of the Table of Contents and the captions appearing
in bold letters 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 of any provision hereof.
ARTICLE 16
RENEWAL AND ARBITRATION
16.01 Renewal. The Landlord covenants with the Tenant that if the Tenant has
performed on a timely basis and is not in default in the performance of the
covenants, provisos and agreements herein on the part of the Tenant to be paid,
observed and performed, the Landlord will at the expiration of the Initial Term
(at the cost of the Tenant and upon its written request delivered to the
Landlord not later than six months before the expiration of the Initial Term)
grant to the Tenant a renewal lease of the Leased Premises for the renewal term
set out in Section 1.01(k) (the "Renewal Term") subject to all the terms and
conditions herein contained, excepting this right of renewal and excepting that
the annual Basic Rent and the Parking Rent for the Renewal Term shall be the
prevailing annual rent in the open market then being charged for the best use of
similar premises and parking rights in Burnaby and excluding any rent free
periods or signing bonus, improvement allowance or other inducement payment for
the Initial Term. The Landlord and the Tenant agree that the Basic Rent for the
Renewal Term shall be determined based on the assumption that the Tenant has
already received any signing bonus, improvement allowance, rent free period or
other inducement payment that would be commonly received by the Tenant for the
Lease in the then current market circumstances, although it is understood and
agreed between the Landlord and the Tenant that no such signing bonus,
improvement allowance, rent free period or other inducement payment under the
Lease shall in fact be payable. In calculating the annual Basic Rent for the
Renewal Term the Landlord and the Tenant agree to take into account that the
Leased Premises include any improvements which have been or are hereafter made
to the Leased Premises by any person. If by the date 60 days prior to the
commencement of the Renewal Term the Landlord and Tenant have not agreed as to
the amount of such annual Basic Rent and Parking Rent, such amounts shall be
determined by arbitration as provided in Section 16.02. Until the annual Basic
Rent and Parking Rent have been determined as herein provided, the Tenant shall
continue to pay the Basic Rent and Parking Rent at the rate payable before such
commencement and upon such determination the Landlord and the Tenant shall make
the appropriate readjustments. In no event shall the annual Basic Rent and the
Parking Rent for the Renewal Term be less than the annual Basic Rent and Parking
Rent for the final Lease Year of the prior term calculated without rent free
periods or other inducements.
16.02 Arbitration. If the Landlord and the Tenant have failed to agree as to the
annual Basic Rent for the Leased Premises and as to the Parking Rent payable
with respect to any portion of the Initial Term or any renewal term when
required hereunder, the determination of such annual Basic Rent and Parking Rent
shall be referred to a single arbitrator pursuant to the Provisions of the
Commercial Arbitration Act of British Columbia. In determining the annual Basic
Rent and Parking Rent, the arbitrator shall assess the annual Basic Rent and
Parking Rent on the assumption that the Tenant has already received any signing
bonus, improvement allowance, rent free period or other inducement payment that
would be commonly received by the Tenant for the Lease in the then current
market circumstances, although it is understood and agreed between the Landlord
and the Tenant that no such signing bonus, improvement allowance, rent free
period or other inducement payment under the Lease shall in fact be payable. In
calculating the annual Basic Rent for any portion of the Initial Term or any
renewal term, the arbitrator shall take into account that the Leased Premises
include any improvements made prior to the date of the arbitration hearing to
the Leased Premises by any person. The annual Basic Rent and Parking Rent shall
not be less than the annual Basic Rent and Parking Rent for the final Lease Year
of the prior term calculated without reference to rent free periods. The
determination made by the arbitrator shall be final and binding upon the
Landlord and the Tenant, and their respective successors and assigns. Each party
shall pay one-half of the fees and expenses of the arbitrator. The provisions of
this Section shall be determined to be a submission to arbitration within the
provisions of the Commercial Arbitration Act, as amended from time to time.
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease as of the
date first above written.
LANDLORD: TONKO REALTY ADVISORS (B.C.) LTD. As Agent of the Owners
__________________________________
By: Xxxxxx Altow, General Manager
TENANT: INFOWAVE SOFTWARE, INC.
By:________________________________
Xxxxxx Xxxxxx, CFO
-----------------------------------
Print Name & Position
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SCHEDULE "A" TO LEASE
FLOOR PLAN
[GRAPHIC OMITTED]
26
SCHEDULE "B" TO LEASE
RULES AND REGULATIONS
1. Refuse.
(a) All trash, rubbish, waste material and other garbage shall be kept in
proper receptacles within the Leased Premises until removal.
(b) In the event the Landlord considers necessary, or otherwise consents to
in writing, the placing of the Tenant's garbage outside the Leased
Premises, such garbage shall be placed by the Tenant in containers approved
by the Landlord but provided at the Tenant's expense and kept at a location
designated by the Landlord.
2. Use of Leased Premises.
(a) The Tenant shall not xxxx, drive nails, screw nor drill into walls, nor
in any way deface the glass, ceilings, partitions, floors, wood, stone or
iron work. The Tenant shall bear the expense of any breakage, stoppage or
damage caused by the Tenant or his servants, agents or employees.
(b) The doors, sashes, windows, glass doors, lights and skylights that
reflect or admit light into the halls or other places of the Building,
shall not be covered or obstructed.
(c) The Tenant shall not hang or suspend from any wall or ceiling or roof,
or any other part of the Leased Premises or the Building, any equipment,
fixtures, signs or displays which are not first authorized by the Landlord.
(d) The Tenant will use only the Building standard window blinds as
determined by the Landlord and will not install or permit to be installed
on or adjacent to the windows in the leased Premises any other window
covering or shades of any type whatsoever whether or not visible from the
outside of the Building, including, without limitation, drapes, curtains,
blinds or shades.
(e) The Tenant shall not use in the Leased Premises any machinery which may
cause any noise or jar or tremor to the floors or walls, or which by its
weight might injure the floors or walls of the Building.
(f) The Landlord shall prescribe the maximum weight, size and position of
any safes or pieces of heavy equipment used in the Building. All damage
done to the Building by putting in or taking out, or maintaining safes or
pieces of heavy equipment, shall be repaired at the expense of the Tenant.
(g) The Tenant shall not move any furniture, equipment or fixtures to or
from their premises - if such premises are designated for office or retail
use - during Normal Business Hours. The Landlord may authorize in writing
an exception to this rule in the case of a Tenant who wishes to move a
single piece of furniture, equipment or fixture, and may establish the date
and time of delivery or pickup. The Tenant must request permission to move
furniture, equipment or fixture in or out of the Leased Premises two
business days prior to the move and the Landlord will, at the Tenant's
cost, install elevator protections, make the necessary arrangements with
the electronic security monitoring station and retain a security guard.
(h) When a Tenant wishes to move any furniture, equipment or fixtures to or
from their premises, it shall give the Landlord two days notice, specifying
the desired delivery or pickup time and the quantity of items to be moved.
The Landlord will arrange for elevator pads, electronic security bypass and
a security guard to attend the move, all at the Tenant's cost. If the move
is at the end of the term or if the Tenant is in arrears of rent, the
Landlord may require the prepayment by the Tenant of the estimated amount
of the above described costs.
3. Electrical Equipment.
a) Electric wiring of every kind shall be introduced and connected only as
directed by the Landlord, and no boring or cutting for wires will be
allowed except with the consent of the Landlord. The location of the
telephones, call boxes, etc., shall be prescribed by the Landlord.
b) If the Tenant requires any electrical equipment which might overload the
electrical facilities in the Leased Premises, the Tenant shall submit to
the Landlord plans and specifications for works required to install and
supply additional electrical facilities or equipment to prevent such
overloading, and shall obtain the Landlord's written approval to perform
such works, which shall meet all the applicable regulations or requirements
of any government or other competent authority, the Association of
Insurance Underwriters and the Landlord's insurers, all at the sole cost
and expense of the Tenant.
4. Plumbing. No plumbing facilities shall be used for any purpose other than
that for which they were designed, and no foreign substance of any kind
shall be thrown therein, and the expense of any breakage, stoppage or
damage resulting from a violation of this provision by the Tenant or by any
persons for whom the Tenant is responsible shall be borne by the Tenant. No
garburators shall be installed by the Tenant without the prior written
approval of the Landlord.
5. Utilities.
a) The Tenant shall not leave open any doors or windows to the exterior of
the Building which would adversely affect the performance of any heating,
ventilating or air-conditioning equipment in the Building.
b) Waste and excessive or unusual use of water or electricity shall not be
allowed.
6. Signs, Advertising, Display Window.
a) The Tenant shall not erect or install any exterior signs or interior
window or door signs or advertising media or window or door lettering or
placards without the prior written consent of Landlord.
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b) The Tenant shall not use any advertising media that the Landlord shall
deem objectionable to it or to other tenants, such as, without limiting the
generality of the foregoing, loudspeakers, phonographs, televisions, public
address systems, sound amplifiers, radios, broadcasts or telecasts within
the Building in a manner capable of being heard or seen outside the Leased
Premises.
c) The Tenant shall not install any exterior lighting, exterior decorations
or build any aerial or mast or make any change to the store front of the
Leased Premises, without the prior written consent of the Landlord.
d) The Tenant shall keep any display windows neatly dressed and, together
with any other windows, store fronts and lighted signs in, upon or affixed
to the Leased Premises, illuminated during such hours as required by the
Landlord.
e) Any installation requiring the Landlord's consent which has not received
such consent shall be subject to immediate removal without notice at the
Tenant's cost.
7. Common Areas. Neither the Tenant nor the Tenant's employees and agents
shall solicit business in the Common Areas nor distribute any handbills or
other advertising matter. The tenants, their employees, servants, agents or
patrons shall not loiter in the Common Areas.
8. Notice of Accident, Defects. The Tenant shall give immediate notice to the
Landlord in case of fire or accident in the Leased Premises or of defects
therein or to any fixtures or equipment thereon.
9. Emergency Contacts. The Tenant shall provide the Landlord with the names,
addresses and telephone numbers of two authorized employees of the Tenant
who may be contacted by the Landlord in the event of an emergency relative
to the Leased Premises.
10. Permits, Licenses. The Tenant alone shall be responsible for obtaining,
from the appropriate governmental authority or other regulatory body having
jurisdiction, whatever permits, licenses or approvals as may be necessary
for the operation of its business.
11. Tenant's Work. Any work to be performed in the Leased Premises by the
Tenant or its contractors shall be first approved and then made strictly in
accordance with the rules and regulations of the Landlord from time to time
in respect of work by the tenants within the Building.
12. Keys, Locks, Security Cards. If the Tenant requires a new lock for any
entrance door or interior door of the Leased Premises, new keys for said
door(s) or new or replacement electronic entry cards to the Building, it
shall require such new or replacement locks, keys or electronic entry cards
from the Landlord. The Landlord will immediately process the Tenant's
request at the Tenant's cost through the Landlord's locksmith or security
contractor. The Tenant shall not change any locks in the Leased Premises
nor have the locks in the Leased Premises changed by anybody (except the
Landlord) without the Landlord's written consent. Any locks found to have
been changed without said consent will be rekeyed at the expense of the
Tenant.
13. Animals. Tenants shall not keep or permit to be kept in the Leased Premises
any cats, dogs (except guide dogs for the visually or hearing impaired),
birds or other pets or any aquariums or fish tanks.
14. Further Rules And Regulations. For the general benefit and welfare of the
Building and the tenants therein, the Landlord may amend and supplement
these rules and regulations and the same shall be binding on the Tenant.
The rules and regulations, as from time to time amended, are not
necessarily of uniform application, but may be waived in whole or in part
in respect of other tenants without affecting either enforceability with
respect to the Tenant and the Leased Premises, and may be waived in whole
or in part with respect to the Leased Premises without waiving them as to
future application to the Leased Premises, and the imposition of such Rules
and Regulations shall not create or imply any obligation of the Landlord to
enforce them or create any liability of the Landlord for their
non-enforcement.
In the event the Tenant is in violation of any of the Rules and Regulations
herein contained, the Landlord may, in its sole discretion and after giving
reasonable notice to the Tenant to cease and desist from said violation, levy an
administrative surcharge on the Tenant, which administrative surcharge shall be
due and payable by the Tenant upon receipt and collectible by the Landlord as
rent.
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SCHEDULE "C" TO LEASE
PERMITTED SIGNAGE
The Landlord agrees to maintain the name of the Building as "The Infowave
Building" on a month-to-month basis and, subject to the bylaws of the City of
Burnaby, allow the Tenant to maintain its signage on the north facade of the
Building, at the Tenant's cost and in accordance with the outstanding
Comprehensive Sign Plan approved by the City of Burnaby. The foregoing
arrangement may be terminated by the Landlord at any time upon fifteen (15)
days' prior written notice to the Tenant.
28
SCHEDULE "D" TO LEASE
OPERATING COSTS EXCLUSIONS (metered premises only)
NOT APPLICABLE
--------------
29
SCHEDULE "E" TO LEASE
OPERATING EXPENSE ACCOUNTS SCHEDULE
Bank Charges
Management Fee
Office Expenses
Office Expenses
Office Expense - Courier
Audit Fee
Telephone
Insurance
Property Tax Appeal
R&M Building
R&M Bldg. General
R&M Painting
R&M Pest Control
R&M Roof
R&M Garage
R&M Striping & Sweep.
R&M Cleaning
R&M Clean. - Tenants
R&M Clean - Common
R&M Clean - Windows
R&M Lighting
R&M Plumb. & Heating
R&M HVAC
Elevator
Snow Removal
Landscaping
Wage & Other Recov.
Bldg. Manager Cost
Bldg. Mgr. Shared Costs
Security
Security-Fire Safety
Security-Data/Phone
Security-Monit/Locks
Security-Patrols/Alarm
Miscellaneous
Misc.-Sanitary Supplies
Misc.-Operating Costs
Signage
Electricity
Gas
Water/Sewer
Waste Removal
Waste Rem. Regular
Waste Rem. Recycling
Depreciation/Amort. (security system)
