Building 3
Exhibit
10.97
Building
3
L
E A S
E
BETWEEN
ALPHA
EQUITIES LTD
AND
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INITIAL |
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/s/
IM
IM
Landlord
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/s/
DW
DW
Tenant
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THIS
LEASE made April _________, 2007.
BETWEEN:
ALPHA
EQUITIES LTD.,
having
an
office at 000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X
0X0
(the
"Landlord")
OF
THE FIRST PART
AND:
having
an office at #150, 00000 Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx
(the
"Tenant")
OF
THE SECOND PART
WHEREAS:
By
a
letter agreement dated
April 5th,
2007, the Landlord and the Tenant have agreed to enter into a lease
with respect of a portion of the building located at 00000 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx.
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in consideration of the rents, covenants and agreements hereinafter
reserved and contained, the parties agree to this Lease of the Leased Premises
on the terms and conditions set forth herein:
1 ARTICLE
BASIC TERMS
.1
AREA
OF LEASED PREMISES
The
Area of the Leased Premises is
approximately 15,364 square feet, subject to
adjustment upon the actual Net Rentable Area of Leased Premises being determined
by a certified British Columbia Land Surveyor following completion of the
Tenant's Work or any subsequent construction by Tenant.
.2
ASIC
RENT
The
Tenant will pay to the Landlord,
Basic Rent in lawful money of Canada and without any set-off, deduction,
payable
in advance in equal monthly instalments, as follows:
Year
1 - $13.70/sf per annum of the Area of Leased Premises.
Year
2 - $14.20/sf per annum of the Area of Leased Premises.
Year
3 - $14.70/sf per annum of the Area of Leased Premises.
Year
4 - $15.20/sf per annum of the Area of Leased Premises.
Year
5 - $15.70/sf per annum of the Area of Leased Premises.
Year
6 - $16.00/sf per annum of the Area of Leased Premises.
If
the actual Area of Leased Premises
is adjusted as contemplated by Article 1.1, the Basic Rent will also be
deemed to be adjusted to that amount per annum equal to the per square foot
rate
multiplied by the actual Area of Leased Premises as so adjusted. Upon
request by the Landlord, the Tenant will execute such documents as may be
required by the Landlord in order to confirm the actual Area of Leased Premises
and Basic Rent.
.3 PERMITTED
USE
The
Leased Premises shall be used for
the purpose of an office facility, manufacturing, research, development and
warehouse space for the Tenant and for no other purpose. The Tenant
shall carry on business in the Leased Premises under the trade name
SmarTire Systems Inc. , and under no other name without the
written approval of the Landlord. Throughout the Term, the Tenant
shall continuously, actively and diligently conduct its business in the whole
of
the Leased Premises.
.4 TERM
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Subject
to subparagraph 1.4.2, the Term of the Lease shall be for 6
years commencing March 1st,
2007 and ending February 28th,
2013.
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The
foregoing Basic Terms are agreed to
by the Landlord and the Tenant and any reference in this Lease to any one
of the
same shall include the provisions set forth above with respect thereto and,
in
addition, any more specific definition or reference hereinafter
provided.
2 ARTICLE
DEMISE AND TERM
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DEMISE
AND
TERM
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The
Landlord does hereby demise and
lease unto the Tenant the Leased Premises to have and to hold for and during
the
Term unless the Term shall be sooner terminated as provided in this
Lease. For so long as the Tenant duly and punctually pays the Rent,
and performs and observes its covenants herein undertaken, the Tenant shall
be
entitled, for the benefit of the Leased Premises, to enjoy, upon the terms
and
conditions established or altered pursuant to this Lease, the use in common
with
others entitled thereto, of the Common Areas and the Common
Facilities.
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.2
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SURRENDER
OF LEASED
PREMISES
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Upon
the expiration or sooner
termination of this Lease, the Tenant shall vacate and surrender to the Landlord
the Leased Premises in accordance with the provisions of this
Lease. All alterations, decorations, additions and improvements made
by the Tenant or made by the Landlord on the Tenant's behalf, other than
the
Tenant's trade fixtures, shall immediately become the property of the Landlord
without compensation therefor to the Tenant and shall be considered Leasehold
Improvements for all purposes under this Lease. Except to the extent
as 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 the Tenant, at its sole cost:
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may
at the end of the Term, if it is not in default hereunder, remove
its
trade fixtures;
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.2
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shall
at the end of the Term remove such Leasehold Improvements, trade
fixtures,
furniture, equipment and inventory as the Landlord, at its option,
shall
require to be removed;
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.3
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may,
if it is not in default hereunder, remove its trade fixtures, furniture,
equipment and inventory at the end of the Term, and also during
the Term
in the usual and normal course of its business where such trade
fixtures,
furniture or equipment have become excess for the Tenant's purposes
or the
Tenant is substituting therefore new trade fixtures, furniture
and
equipment.
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If
the Tenant does not remove its trade
fixtures at the expiration or earlier termination of this Lease, such trade
fixtures shall become the Landlord's property, at the option of the Landlord,
and may be removed from the Leased Premises and sold or otherwise disposed
of by
the Landlord. For greater certainty, the Tenant's trade fixtures
shall not include any Leasehold Improvements or drapes or curtains installed
in
the Leased Premises by the Landlord or the Tenant.
In
the case of every removal either
during or at the end of the Term, 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 and any Leasehold Improvements therein by the installation
and
removal. The Tenant's obligations under this Article 2.2 shall
survive the expiration or sooner termination of this Lease.
4 ARTICLE
RENT
.1
BASIC
RENT
The
Tenant shall pay to the Landlord
for each and every Year of the Term, the Basic Rent specified in Article
1.2, by
equal monthly instalments, each in advance on the first day of each and every
month during the Term, the first of such monthly instalments to be paid on
the
Commencement Date.
.2
DEPOSITS
The
Tenant has prior to execution of
this Lease delivered to the Landlord a deposit in the amount of
$18,681.30 which is to be held and has already been paid by the
Landlord and applied towards the Basic Rent for the last month of the
Term. Provided, that if at any time the deposits or any part has not
been so applied by the Landlord and the Tenant fails to comply with its
obligations under this Lease, the Landlord may, at its option, and without
prejudice to any other rights and remedies of the Landlord, apply the deposits
or any part thereof towards curing such default or the Landlord may, at its
option, retain the deposit it then holds as liquidated damages and not as
a
penalty. Without limiting the generality of the foregoing, the
application of the deposits by the Landlord towards curing the said default
or
its retention by the Landlord as liquidated damages shall in no manner
whatsoever limit the Landlord's right to xxx for and recover actual damages
suffered or to terminate the Lease or otherwise limit any of the other rights
and remedies by the Landlord. The deposits will not bear any interest
in favour of the Tenant.
.3
ADDITIONAL
RENT
The
Tenant shall pay to the Landlord
for each and every Lease Year or portion thereof, the Additional Rent for
such
Lease Year or portion thereof. The amount of Additional Rent which
the Tenant is to pay in each Lease Year or portion thereof shall be estimated
by
the Landlord in advance and the Tenant shall pay to the Landlord such amount
in
equal monthly instalments in advance during such Lease Year or portion
thereof. The amount of the estimated Additional Rent may be adjusted,
from time to time, during a Lease Year by the Landlord giving notice to the
Tenant, in which event the remaining payments to be made by the Tenant as
aforesaid in such Lease Year may be adjusted accordingly All remedies
of the Landlord on nonpayment of Rent shall be applicable to the Additional
Rent
and the obligation of the Tenant to pay any monies pursuant to this Lease
shall
survive the expiration or sooner termination of this Lease. From time
to time, at the request of the Landlord the Tenant shall produce to the Landlord
satisfactory evidence of due payment by the Tenant of all payments required
to
be made by the Tenant, other than to the Landlord, pursuant to this
Lease.
.4
ADJUSTMENT
OF ADDITIONAL RENT
Within
six (90) months after the end of
each Lease Year, the Landlord shall furnish to the Tenant a statement of
the
actual amount of Additional Rent payable by the Tenant for such preceding
Lease
Year and showing in reasonable detail the information relevant and necessary
to
the calculation thereof. Subject to Article 3.3 the amount payable by
the Tenant as shown on such statement is more or less than the Additional
Rent
paid by the Tenant to the Landlord for such Lease Year pursuant to Article
3.3,
the appropriate adjustment as between the Landlord and the Tenant shall be
made
within fourteen (14) days of delivery of such statement. Any payment
made by the Landlord or made by the Tenant and accepted by the Landlord in
respect of any adjustment made pursuant to this Article 3.4 shall be without
prejudice to the right of the Landlord or the Tenant to claim a readjustment,
provided such claim, if made by the Tenant, is made within ninety (90) days
after, or if made by the Landlord, is made within one hundred twenty (120)
days
after the date of delivery of the statement referred to in this
Article 3.4. The Tenant shall have the right, at its sole
expense, for a period of ninety (90) days following receipt of the aforesaid
statement to inspect during the Landlord's normal business hours, subject
to the
inspection being reasonable in all the circumstances, any record kept or
held by
the Landlord of the costs or expenses claimed by the Landlord for such Lease
Year and the Landlord shall make its said records available
accordingly.
.5
MANNER
AND PLACE OF PAYMENT
Rent
and all other sums payable by the
Tenant to the Landlord hereunder shall be paid to the Landlord at the office
of
the Landlord set forth in Article 18.1, or at such other place as the Landlord
may reasonably direct in writing, from time to time, without notice or demand,
except as otherwise specifically provided herein and without deduction, set
off
or abatement for any reason whatsoever. The Tenant shall pay to the
Landlord interest at a rate equal to the lesser of the maximum rate permitted
by
law or the rate that is three (3%) percent per annum above the Prime Rate
on all
arrears of Rent or other sums payable by the Tenant to the Landlord pursuant
to
the terms hereof, from the date of default in payment until payment is received
by the Landlord, except as otherwise specifically provided herein.
.6
IRREGULAR
CALCULATION OF BASIC RENT
If
for any reason it is necessary to
calculate Basic Rent for a period of one or more months, but less than a
Year of
the Term, the same shall be calculated on the basis of 1/12 of the Basic
Rent
being payable for each month. If for any reason it becomes necessary
to calculate Basic Rent for a period of less than one month the same shall
be
calculated on the basis of 1/365 of the Basic Rent being payable for each
day in
such period. Without restricting the generality of the foregoing, if
the Commencement Date occurs other than on the first day of a month, the
first
instalment of Basic Rent paid by the Tenant in accordance with Article 3.1
shall
be based on the period from the Commencement Date to and including the last
day
of the month in which the Commencement Date occurs.
.7 DISPROPORTIONATE
ALLOCATION
Notwithstanding
anything to the
contrary in this Lease, to the extent that the Landlord, acting reasonably,
determines that an item included in Additional Rent properly relates to only
a
portion of the Development or to a portion of the Building, the Landlord
may
allocate such item to such portion of the Development or Building, as the
case
may be, in which event the Tenant's Proportionate Share, if the Leased Premises
are within such portion, shall be calculated in relation to the Gross Leasable
Area of all leasable premises in such portion.
.8
NET
LEASE INTENT
The
Tenant covenants that this Lease
shall be a completely carefree, triple net lease for the Landlord, except
as
shall be otherwise the Landlord shall not be responsible during the Term
for any
costs, charges, expenses and outlays of any nature whatsoever, arising from
or
relating to the Leased Premises or the contents thereof, the Building or
the
Development, excepting only the Landlord's income tax in respect of income
received from leasing the Leased Premises and other premises in the
Development. Except as otherwise provided in the specific provisions
contained in this Lease the Tenant shall pay, in the manner more particularly
described in this Lease, all charges, impositions and costs of every nature
and
kind relating to the Leased Premises, the Building and the Development, whether
or not stipulated in this Lease and whether of a kind now existing or
contemplated by the parties or not.
6 ARTICLE
CONSTRUCTION AND FIXTURING OF LEASED PREMISES
.1 LANDLORD'S
AND TENANT'S
WORK
The
parties agree that the
Tenant agrees to accept the Leased Premises on an “as is”
basis. Any additional work shall be performed by the Tenant
at the Tenant’s expense.
.2
RESERVED
.3
PAYMENT
FOR THE LANDLORD'S WORK
All
work done at the Tenant's request
(including the supplying of materials or equipment) by the Landlord or its
contractors or subcontractors in or relating to the Leased Premises, over
and
above the Landlord's Work, shall be paid for by the Tenant forthwith on
demand.
.4
ACCEPTANCE
OF LEASED PREMISES
The
taking of possession of the Leased
Premises by the Tenant to construct the Tenant's Work shall be deemed to
be
conclusive proof that, except for latent defects or hidden defects and items
noted in a list prepared by the Tenant during a joint inspection by the Tenant
and the Landlord at the time of the taking of such possession, the Leased
Premises are in the condition called for by this Lease to the extent that
the
Landlord is responsible therefor and that the Landlord has performed all
of the
Landlord's Work with respect thereto in a good and workmanlike
manner. The itemizing of any matter in such list by the Tenant shall
not preclude the Landlord from disputing the categorization of such matter
as a
deficiency.
.5
SITE
PLAN, RELOCATION AND INABILITY TO COMPLETE
-DELETED
8 ARTICLE
CONDUCT OF BUSINESS
.1
USE
OF
LEASED PREMISES
The
Tenant shall not use or occupy the
Leased Premises or any part thereof for any purpose other than the Permitted
Use, without consent of the Landlord first having been obtained.
.2
PROHIBITED
USES
The
Tenant shall not, at any time,
carry on nor suffer, permit or allow to be carried on in the Leased Premises
any
fire sale, distress sale, bankruptcy sale, going-out-of-business sale, or
any
other business sale designed to convey to the public that business operations
are to be discontinued, an auction, a pawn business, a mail order business,
any
business which, because of the merchandise likely to be sold , the merchandising
or pricing methods likely to be used, in the reasonable opinion of the Landlord,
would tend to lower the character of the Development, any criminal,
quasi-criminal or illegal activity or any other business or occupation which
shall be deemed by the Landlord to be a nuisance.
.3
OPERATIONS
DURING THE TERM
The
Tenant acknowledges that its
continued occupancy of the Leased Premises and the regular conduct of its
business therein are of the utmost importance to the Landlord in avoiding
the
appearance and impression generally created by vacant space in a development,
in
facilitating the leasing of vacant space, and in the renewal of other leases,
and that the Landlord will suffer substantial damage if the Leased Premises
are
vacated or left vacant during the Term even if Basic Rent is paid.
The
Tenant shall on the Commencement
Date commence and thereafter during the Term, actively and diligently carry
on
in the Leased Premises the business specified as the Permitted Use and shall
without limiting the generality of the foregoing:
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conduct
its business in the entire Leased Premises;
and
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remain
open for business at least during normal business days and hours
for the
type of business being conducted from the Leased
Premises.
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The
Tenant will not during the Term
vacate or abandon the Leased Premises either in full or in part.
.4
SIGNS
The
Tenant shall not paint, display,
inscribe, place or affix any sign, picture, advertisement, notice, lettering
or
direction, or any window blinds or awnings, on any part of the outside of
the
Building or visible from the outside of the Building, or in any corridor,
hallway, entrance or any other public part of the Building, without the prior
written approval of the Landlord; provided that the Landlord may prescribe
a
uniform pattern for identification signs for tenants to be placed on the
outside
of the Leased Premises. At the request of the Tenant and at the
Tenant's expense, the Landlord shall cause such a sign to be placed in position
in the form of lettering, style and design and in the size and position as
authorized by the Landlord in writing. On the expiration or sooner
termination of this Lease, the Tenant shall cause any signs as aforesaid
to be
removed at its own expense and in a good and workmanlike manner. The
Tenant will indemnify and save harmless the Landlord from and against any
loss,
suit, action, damage, injury or claim suffered by any person, firm or
corporation arising out of or by reason of the erection, or presence of any
such
sign(s) or awnings, or the removal of same and whether or not the Tenant,
its
officers, employees, agents, invitees or servants have been negligent with
respect to the same. Without limiting the generality of the
foregoing, the Tenant will ensure that:
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(a)
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All
signage must be approved in writing by the Landlord prior to
installation;
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(b)
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Signs
may be illuminated with the Landlord's approval but in no case
will they
be allowed to flash or rotate;
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(c)
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The
use of any electronic signage or other form of reader board signage
shall
be approved at a preliminary design stage with the
landlord;
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(d)
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In
the event that the Landlord elects to install a free-standing directory
sign to identify a building or tenants, the Tenant shall have an
opportunity to display its trade name on the sign on a rental basis
to be
agreed upon;
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(e)
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Signs
featuring general advertising shall not be
permitted;
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(f)
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Signs
affixed to fascias shall not protrude above the roof level of a
building
nor the upper level of fascia to which they are attached. No
external supporting structure shall be
visible;
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(g)
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Signs
may include the registered trademark or symbol of a company if
the signage
complies with the intent of these guidelines, and is to the Landlord's
satisfaction;
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.5 NUISANCE
AND ANNOYANCE
The
Tenant shall not use or occupy the
Leased Premises or suffer or permit the same to be used or occupied for any
unlawful purpose, or for any dangerous, noxious or offensive trade or business,
or for any purpose likely to cause a nuisance or annoyance to the Landlord
or
any other tenants of the Development nor undertake any operation likely to
cause
the same, nor commit or suffer to be done any waste, damage or disfigurement
or
injury to the Development or any part thereof nor permit or suffer the
overloading of any floors therein.
.6
ENVIRONMENT
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(a)
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The
Tenant will store any Hazardous Substances brought onto the Lands
in
accordance with all applicable laws and any required permits, licences
or
authorizations.
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(b)
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The
Tenant will not Release and will not permit the Release of any
Hazardous
Substances onto or from the Building or the Lands except in accordance
with applicable laws and any required permits, licences or
authorizations.
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(c)
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At
its own cost, risk and expense, the Tenant shall comply with all
laws and
regulations from time to time in force regulating the manufacture,
use,
storage, transportation, disposal or other dealing with Hazardous
Substances by the Tenant.
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(d)
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The
Tenant will be fully and completely liable for and will and does
hereby
indemnify and save harmless the Landlord from all cleanup costs
and
remediation charges, fees, penalties or damages, whether civil
or
criminal, and any expense with respect thereto, required by any
decree,
directive or order from any governmental authority relating to
the
treatment, storage, disposal or transportation of Hazardous Substances
on
or from the Lands by the Tenant, its employees, agents, contractors
or
others for whom the Tenant is responsible in
law.
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(e)
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If
any Hazardous Substances are brought onto the Leased Premises or
created
upon the Leased Premises during the Term, such Hazardous Substances
shall
be the sole and exclusive property of the Tenant and not of the
Landlord,
notwithstanding the degree of affixation of the Hazardous Substances
or
the goods containing the Hazardous Substances to the Leased Premises
and
notwithstanding the expiry or sooner termination of this
Lease.
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(f)
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On
or before the expiration or sooner termination of this Lease, the
Tenant
will remove all Hazardous Substances which have been brought onto
or
created upon the Leased Premises during the Term, whether by the
Tenant or
any other person other than the Landlord, including any Hazardous
Substances which may have been Released or deposited into the
soil.
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(g)
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The
Tenant will advise the Landlord of any Release of any Hazardous
Substances
on the Leased Premises or the Lands forthwith and will provide
the
Landlord with all information, notices, reports and other documents
it has
regarding such Release and the remediation steps being undertaken
by the
Tenant with respect to the Release or as may reasonably be required
by the
Landlord of the Tenant.
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.7
COIN
OPERATED MACHINES
The
Tenant shall not have or permit to
suffer to be on the Leased Premises any machines selling merchandise or services
or providing entertainment, whether by coins, credit cards or otherwise,
unless
expressly approved by the Landlord in writing, and except for use solely
by the
Tenant’s staff.
.8
LOUDSPEAKERS
AND OTHER ADVERTISING APPARATUS
The
Tenant shall not have or permit any
public address, music broadcast or other sound system which may be heard
beyond
the limits of the Leased Premises.
.9
DELIVERY
OF SUPPLIES AND MATERIALS
The
delivery and shipping of
merchandise, supplies, fixtures and other materials or goods of whatsoever
nature to or from the Leased Premises and all loading, unloading and handling
thereof shall be done through such entrances as designated by the Landlord
and
at such times and by such means as approved by the Landlord.
.10
ORDINANCES
AND REGULATIONS
At
its sole cost, risk and expense, the
Tenant shall promptly:
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Observe
and comply with all provisions of law including, without limitation,
all
requirements of all governmental authorities (including federal,
provincial and municipal legislative enactments, by-laws and other
regulations now or hereafter in force) which pertain to or affect
the
Leased Premises, the Tenant's use of the Leased Premises or the
conduct of
any business in the Leased Premises or the making of any repairs,
replacements, alterations, additions, changes, substitutions or
improvements of or to the Leased
Premises.
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Observe
and comply with all police, fire and sanitary regulations and
recommendations imposed by any governmental authorities (whether
federal,
provincial or municipal) or made by fire insurance underwriters
or the
Insurers Advisory Organization of
Canada.
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.3
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Carry
out all modifications, alterations or changes of or to the Leased
Premises
and the Tenant's conduct of business in, or use of, the Leased
Premises,
which are required by such authorities as a result of the Tenant's
occupation and use of the Leased
Premises.
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.11 RULES
AND REGULATIONS
The
Tenant shall observe the rules and
regulations (the "Rules and Regulations") attached hereto as Schedule "C"
(as
reasonably amended or supplemented from time to time on written notice by
the
Landlord) and the Tenant shall ensure that its employees and all persons
visiting and doing business with the Tenant observe the Rules and
Regulations. Failure to keep and observe the Rules and Regulations
constitutes a default under this lease.
10 ARTICLE
REPAIRS
.1
TENANT'S
REPAIRS
Subject
to Article 6.8, the Tenant
shall at all times during the Term, at its own cost and expense, repair,
maintain, operate and keep the Leased Premises, all equipment, fixtures and
mechanical systems (including heating, ventilating and air-conditioning systems)
within the Leased Premises or elsewhere (if such equipment, fixtures or systems
are provided for the use or benefit of the Leased Premises) and any Leasehold
Improvements now or hereafter made to the Leased Premises in good order,
first-class condition and repair (reasonable wear and tear and repairs which
are
the Landlord's responsibility pursuant to Article 6.6 hereof only excepted)
and
shall promptly make all needed repairs and replacements thereto, and, without
limiting the generality of the foregoing, during the Term the Tenant shall
cause
such good management and care to be taken of the Leased Premises and various
parts thereof that no injury to the same shall occur and all water closets,
sinks, heating and air-conditioning and ventilating apparatus located in
the
Leased Premises shall be maintained in a state of a standard acceptable to
or
determined by the Landlord and shall maintain such decorating to such standards
throughout the Term. The Tenant shall be responsible for all such
maintenance, repairs, replacements and decorating and shall promptly with
due
diligence, at its sole expense, carry out any and all of the
foregoing.
.2
PERIMETER
WALLS AND GLASS
The
Tenant shall promptly repair or
make whole all damaged glass, plate glass, doors and windows in the Leased
Premises as and whenever the same is required.
.3
LANDLORD'S
EXAMINATION OF LEASED PREMISES
The
Landlord and any employee, servant,
agent or contractor of the Landlord shall be entitled, at any time during
normal
business hours and at any time in the event of any emergency, to enter and
examine the state of maintenance, repair, decoration and cleanliness of the
Leased Premises, all equipment and fixtures within the Leased Premises and
any
improvements now or hereafter made to the Leased Premises, and the Landlord
may
give notice to the Tenant requiring that the Tenant perform such maintenance
or
effect such repairs, replacements or decoration or cleaning as is the
responsibility of the Tenant as may be found necessary from such
examination.
.4
LANDLORD'S
RIGHT TO REPAIR
In
the event that the Tenant fails
forthwith after the receipt of written notice thereof, or within such reasonable
time thereafter if for any cause beyond the control of the Tenant it is not
reasonable in the circumstances (it being agreed that lack of finances on
the
part of the Tenant shall not be treated as a cause beyond the Tenant's control),
to commence and diligently proceed to perform such maintenance or effect
such
repairs, replacements, decorations or cleaning as so specified in any notice
given by the Landlord, the Landlord, its employees, servants, agents or
contractors may, but shall not be obligated to, enter the Leased Premises
and at
the Tenant's expense, perform and carry out the same and the Landlord in
so
doing shall not be liable for inconvenience, disturbance, loss of business
or
other damage resulting therefrom and in the event the Landlord expends any
monies pursuant to this Article 6.4, the Tenant shall pay the same to the
Landlord on demand with a fee of twenty (20%) percent of such amount for
the
Landlord's supervisory function and in addition shall pay interest on the
aggregate of the foregoing at the rate provided in this Lease from the date
of
the expenditure of such first mentioned monies by the Landlord.
.5
LANDLORD'S
RIGHT TO ENTER FOR OTHER REPAIRS
The
Landlord, and any employee,
servant, agent or contractor of the Landlord shall have the right to enter
the
Leased Premises at all times during business hours and at any time in the
case
of an emergency to make such alterations or repairs as the Landlord is required
to make pursuant to the terms of this Lease or shall deem necessary for the
safety, preservation, proper administration or improvement of the Development
or
any portion thereof and the Landlord in so doing, shall not be liable for
inconvenience, disturbance, loss of business or other damage resulting
therefrom.
.6
LANDLORD'S
REPAIRS
The
Landlord shall be responsible only
for structural repairs to correct inherent defects in the following components
of the Building:
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.1
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the
roof deck (excluding the protective system above the deck
surface);
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.2
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the
bearing walls (excluding perimeter caulking of walls and
windows),and
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.3
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the
floor and foundation;
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save
and
except damage caused by the negligence or misconduct of the Tenant, its
employees, invitees, licensees, agents, servants or other persons from time
to
time on or about the Leased Premises, the Building or the Lands for whom
the
Tenant is legally responsible.
From
time to time, throughout the Term,
the Landlord shall repair all damage to the Leased Premises which is covered
by
any insurance effected by the Landlord in accordance with the provisions
of
Article 9.3 hereof to the extent of the proceeds of such insurance applicable
thereto;
PROVIDED
HOWEVER that if any such
repairs are necessitated by the negligence or misconduct of the Tenant, its
servants, agents, contractors, licensees, employees or others for whom in
law
the Tenant is responsible, the Tenant shall pay to the Landlord on demand
the
cost of such repairs and a fee of fifteen (15%) percent for the Landlord's
supervisory function and interest on the aggregate amount of both of the
foregoing from the date of expenditure of the first mentioned monies by the
Landlord.
PROVIDED
FURTHER that in any event the
Landlord shall not be responsible for any damages, loss or injury sustained
by
the Tenant or any person or persons claiming through or under it, by reason
of
defects giving rise to the need for such repairs or the consequence thereof,
including the inconvenience occasioned to the Tenant by the entry of the
Landlord, its employees, servants, agents, or contractors on the Leased Premises
to effect such repairs.
.7
LANDLORD'S
OBLIGATIONS TO MAINTAIN
The
Landlord shall maintain and keep
the Common Areas and the Common Facilities in a state of repair and cleanliness
consistent with the standard of a first-class development of a similar
nature.
.8
DAMAGE
AND DESTRUCTION
In
the event of damage or destruction
of the Leased Premises or the Building by fire, lightning, earthquake, tempest
or other casualty so that:
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.1
|
the
same is damaged or destroyed to the extent that the same cannot
with
reasonable diligence be rebuilt, repaired or restored within one
hundred
and twenty (120) days of the date of damage or destruction (as
determined
in the opinion in writing of the Landlord's Architect, acting reasonably,
which written opinion shall be delivered to the Tenant within forty-five
(45) days of the occurrence of such damage or destruction) or the
estimated cost of rebuilding, repairing or restoring such damage
or
destruction will exceed by $75,000.00 or more the anticipated proceeds
of
insurance available to the Landlord for the purpose, then, notwithstanding
any other term of or condition of this Lease to the contrary, the
Landlord
may terminate this Lease by notice in writing to the Tenant given
within
sixty (60) days of the occurrence of such damage or destruction,
such
notice to be effective as at the date of the damage or destruction
if the
Leased Premises are not capable of being utilized by the Tenant,
as
determined by the Landlord's Architect, and otherwise to be effective
at
the date specified in such notice of termination, which shall not
be less
than thirty (30) days following receipt of such notice by the Tenant
and
in either of such events, the Rent hereby reserved shall be forthwith
payable by the Tenant to the effective date of the termination,
the Term
hereby granted shall terminate as at that date and the Landlord
may as at
the effective date of termination re-enter and take possession
of the
Leased Premises and deal with the same as fully and effectively
as if
these presents had not been entered into. But if within the
said period of sixty (60) days, the Landlord shall not give notice
terminating this Lease, then as soon as reasonably practicable
thereafter,
the Landlord shall undertake or continue the rebuilding, repair
or
restoration with all reasonable diligence and the Basic Rent hereby
reserved, or a proportionate part thereof depending upon the proportion
of
the Leased Premises that are not fit for use by the Tenant for
the
intended purpose of this Lease, shall xxxxx from the date of damage
or
destruction until the Leased Premises have been rebuilt and made
fit for
the intended purposes of this Lease;
or
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|
.2
|
the
same is damaged or destroyed to the extent that the same can with
reasonable diligence be rebuilt, repaired or restored within one
hundred
and twenty (120) days of the date of such damage or destruction
(as
determined in the opinion in writing of the Landlord's Architect,
which
written opinion shall be delivered to the Tenant within forty-five
(45)
days of the occurrence of such damage or destruction) and the Landlord
is
not otherwise entitled to terminate this Lease pursuant to Article
6.8.1
as soon as reasonably practicable after such determination, the
Landlord
shall undertake or continue the repair of the same with all reasonable
diligence, provided, however, that nothing herein contained shall
impose
any obligation upon the Landlord to complete such repair within
the same
period of one hundred and twenty (120) days and the Basic Rent
hereby
reserved, or a proportionate part thereof depending upon the proportion
of
the Leased Premises that are not fit for use by the Tenant for
the
intended purposes of this Lease, shall xxxxx until the Leased Premises
have been rebuilt and made fit for the intended purposes of this
Lease.
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.9
QUALIFICATIONS
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.1
|
For
the purposes of Article 6.8 the terms "Leased Premises" and "Building"
shall be deemed not to include the Tenant's trade fixtures, merchandise,
stock-in-trade, furniture or any other improvements installed in
the
Leased Premises by or on behalf of the Tenant, including, without
limitation, the Tenant's Work.
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.2
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If
the Landlord rebuilds, repairs, or restores the Building or the
Leased
Premises as contemplated in Article 6.8 it will not be required
to
reproduce exactly the Leased Premises or the Building or restore
the same
to the exact condition that existed before the damage or destruction,
provided that it reproduces or restores or rebuilds the same to
a
comparable condition and
configuration.
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.3
|
The
certificate of the Landlord's Architect in charge of the rebuilding,
repair or restoration shall bind the Landlord and the Tenant as
to the
state and proportion of the suitability for occupancy of the Leased
Premises and as to the date upon which the work of reconstruction
or
restoration performed by the Landlord is completed and the Leased
Premises
is fit for the purposes of the
Tenant.
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.4
|
Notwithstanding
any of the provisions of Article 6.8 to the contrary, in the event
the
damage or destruction referred to therein is caused by the negligence
or
misconduct of the Tenant, its servants, agents, employees, contractors,
licensees or other persons for whom in law the Tenant is
responsible:
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(a)
|
and
this Lease is not terminated as a result of such damage or destruction,
there shall be no abatement of Basic Rent as contemplated in Article
6.8;
and
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(b)
|
the
Tenant shall and does hereby indemnify and hold harmless the Landlord
from
and against any liabilities, damages, costs, claims, suits or actions
of
any nature whatsoever suffered by or incurred by the Landlord as
a result
of such damage or destruction and this indemnity and hold harmless
covenant shall survive the expiration of the
Term.
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.10 CONDITION
AT EXPIRATION
At
the expiration or sooner termination
of the Term, the Tenant shall peaceably surrender and yield up to the Landlord
the Leased Premises as required by this Lease together with all improvements,
erections and appurtenances which at any time or times during the Term shall
be
made, placed or erected therein or thereon, in good and substantial repair
and
condition, reasonable wear and tear and damage by fire, lightning and tempest
only excepted and the Tenant shall surrender all keys to the Leased Premises
to
the Landlord at the place then fixed for the payment of Basic Rent and shall
inform the Landlord of all combinations of locks, safes and vaults (if any)
in
the Leased Premises.
12 ARTICLE
COMMON AREAS AND COMMON FACILITIES
.1
TENANT'S
USE OF PARKING AREAS
The
Landlord shall provide to the
Tenant during the Term, at no cost to the Tenant during the Initial Term
described in paragraph 1.4.1, a maximum of 24 unreserved
parking stalls located in the Lands in locations determined
by the
Landlord from time to time.
The
Tenant, its employees, suppliers
and other persons not licensees or invitees and having business with the
Tenant
shall be prohibited from using for parking of vehicles and loading or unloading
of any vehicles any part of the customer parking areas as such may be designated
and changed from time to time by the Landlord. Tenant and employee
parking shall be limited to specified times and places, arranged so as to
cause
minimal interference to business within the Development. If requested
by the Landlord the Tenant shall supply its employees' automobile license
numbers to the Landlord.
.2
LANDLORD'S
RIGHT TO REMOVE VEHICLES
Should
the Tenant, its employees,
suppliers or other persons not licensees or invitees of the Tenant park vehicles
in areas not allocated for that purpose, the Landlord shall have the right
to
remove the said trespassing vehicles and the Tenant hereby indemnifies and
saves
harmless the Landlord from any and all damages arising therefrom and the
Tenant
will pay the costs of such removal.
.3
VISITOR
PARKING
The
Landlord shall at all times during
the Term maintain for the benefit of the licensees and invitees of the Tenant
parking facilities.
.4
CONTROL
OF COMMON AREAS AND COMMON FACILITIES
The
Landlord shall at all times have
exclusive control and management of the Common Areas and the Common
Facilities. Such control applies to signs, use of shop windows, and
the Tenant's publicity visible from the Common Areas, as well as to the use
made
by the Tenant and/or the public of the Common Areas. The Landlord
shall have the right to alter, vary, designate and redesignate the Common
Areas
and the Common Facilities from time to time and to interfere with the use
of the
Common Areas and the Common Facilities to the extent necessary to make such
alterations or variations or any other repairs required or permitted to be
made
by the Landlord under this Lease. The Tenant shall have the right, in
common with others entitled thereto, to the use of the Common Areas and Common
Facilities designated from time to time by the Landlord for use by tenants
of
the Development, subject to the provisions of this Lease and to all rules
and
regulations made by the Landlord with respect thereto from time to
time.
.5
MERCHANDISE
ON COMMON AREAS
In
particular, but without in any way
limiting the generality of the provisions of Article 7.4, the Tenant shall
not
keep, display, or sell any merchandise on or otherwise obstruct or use any
part
of the Common Areas or the Common Facilities, except as permitted by the
Landlord and except for displays included in Development promotions when
recognized and permitted by the Landlord.
14 ARTICLE
ASSIGNMENT AND SUBLETTING
.1
PROHIBITIONS
Except
to a subsidiary or another
entity controlled by controlling or under common control with Tenant, the
Tenant
will not assign this lease in whole or in part nor sublet, part with or share
possession of all or any part of the Leased Premises, nor mortgage nor encumber
this lease or the Tenant's interest in the Leased Premises or any part thereof,
nor suffer nor permit the occupation of all or any part thereof by others
(all
of the foregoing being collectively referred to as the "Transfer") without
the
prior written consent of the Landlord in each instance, which consent shall
not
be unreasonably withheld but which shall in every case be subject to the
provisions of sections 8.1 to 8.6. The consent by the Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for
such
consent to any subsequent Transfer. This prohibition against
assigning or subletting shall be construed to include a prohibition against
any
Transfer by operation of law. If this Lease shall be assigned, or if
the Leased Premises or any part thereof shall be sublet or occupied by anybody
other than the Tenant, the Landlord may collect rent from the assignee,
sub_tenant or occupant, and apply the net amount collected to the Basic Rent
and
Additional Rent herein reserved, but no such assignment, subletting, occupancy
or collection shall be deemed to be a waiver of this covenant or the acceptance
of the assignee, sub_tenant or occupant as tenant, or a release of the Tenant
from the further performance by the Tenant of the covenants on the part of
the
Tenant herein contained. Notwithstanding any assignment or
subletting, the Tenant shall remain jointly and severally liable on this
lease
and shall not be relieved from performing any of the terms, covenants and
conditions of this lease. Any assignment of the lease, if consented
to by the Landlord, shall be prepared by the Landlord or its solicitors in
such
form as may be acceptable to the Landlord and its solicitors, and any and
all
legal costs, together with an administration cost of not less than $500.00
with
respect thereto shall be borne by the Tenant.
.2
INFORMATION
REGARDING TRANSFEREE AND LANDLORD’S RIGHT TO TERMINATE
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.1
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In
the event the Tenant desires to effect a Transfer of all or any
part of
the Leased Premises or this lease or any estate or interest hereunder,
then (and so often as such event shall occur) the Tenant shall
give prior
written notice to the Landlord of such desire, specifying therein
the name
of the proposed assignee, transferee, sub_tenant or occupant (collectively
the "Transferee"), and such other information as the Landlord may
require
and the Landlord shall within thirty (30) days thereafter notify
the
Tenant in writing either that:
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.1
|
|
(a)
|
it
consents or does not consent,
as aforesaid, to the Transfer, or
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(a)
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(b)
|
it
elects to cancel this lease
in preference to the giving of such
consent.
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(a)
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.2
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In
the event that the Landlord elects to cancel this lease pursuant
to
section 8.2.1(b) then the Tenant shall notify the Landlord in writing
within fifteen (15) days thereafter of the Tenant's intention either
to
refrain from such Transfer or to accept the cancellation of the
lease. Should the Tenant fail to deliver such notice within
such period of fifteen (15) days, the Tenant shall be deemed to
have
accepted the cancellation of this
lease.
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.1
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.3
STANDARDS
FOR CONSENT
Without
limiting the other instances in
which it may be reasonable for the Landlord to withhold its consent to a
Transfer, and without derogating from the Landlord's right to terminate this
Lease, as provided in paragraph 8.2.1(b), it will be fair and reasonable
for the
Landlord to withhold its consent or impose conditions to its consent in any
of
the following instances:
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(a)
|
if
the Landlord determines that the financial condition of the Transferee
or
any indemnifier of a Transferee is or may become insufficient to
support
all of the financial and other obligations of the Tenant under
this
Lease;
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(a)
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(b)
|
if
the use to which the Leased Premises will be put by the proposed
Transferee is inconsistent with the terms of this Lease or conflicts
with
any exclusive rights or covenants not to compete in favour of any
other
tenant or proposed tenant of the Development, or otherwise will
materially
or adversely affect any legitimate interest of the
Landlord;
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(a)
|
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(c)
|
if
the business reputation or character of the proposed Transferee
or any of
its affiliates is not reasonably acceptable to the
Landlord;
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(a)
|
(d) if
the Landlord determines that the
proposed Transferee is not likely to conduct on the Leased Premises a business
that is:
(a)
(i) of
a quality substantially equal to
that conducted by the Tenant, or
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(ii)
|
consistent
or compatible with the operations of existing tenants within the
Development.
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(i)
|
(e) if,
at the time of the proposed
Transfer,
(a)
|
(i)
|
the
Tenant is in default (or would be in default with the giving of
notice by
the Landlord and the expiration of any applicable cure period)
under this
Lease, and
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(ii)
|
the
Landlord has not received assurances acceptable to the Landlord,
in its
sole discretion, that any past due amounts owing from the Tenant
to the
Landlord will be paid and any other defaults on the part of the
Tenant
will be cured prior to the effectiveness of the proposed
Transfer;
|
(f) if
the Transfer will result in a
division of the Leased Premises;
(a)
(g) if
the Transfer is not approved by any
mortgagee having the right to approve such Transfer;
(a)
(h) if
the proposed Transferee is an
existing tenant within the Development (which shall include, without limitation,
any tenant which is an overholding or month_to_month tenant) or a party with
which the Landlord is bona fide negotiating or attempting to negotiate, or
has,
within the twelve months prior to the Tenant’s request for consent, attempted to
negotiate, a lease or an offer to lease in respect of any premises within
the
Development; or
(a)
(i) if
the Tenant has not received a bona
fide, written offer to take an assignment or a sublease or has not supplied
a
copy of such offer to the Landlord at the time of requesting consent to a
Transfer; or
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(j)
|
if
the proposed Transferee fails or refuses to execute and deliver
to the
Landlord an agreement, in form and content required by the Landlord,
whereby the Transferee agrees to perform, observe and keep each
and every
covenant and condition of the Lease on the part of the Tenant to
be
observed and performed including (except in the case of a subtenancy)
the
obligation to pay Rent.
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(a)
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.4
NO
ADVERTISING
The
Tenant will not advertise the whole
or any part of the Leased Premises for lease nor permit any agent or broker
to
do so, unless the prior written approval of the Landlord has been
received.
.5 CHANGE
OF CONTROL OF TENANT - DELETED
.6 REMEDY
OF THE TENANT
The
Landlord will have no liability in
connection with any claims of any kind by the Tenant or others as a result
of
the Landlord's withholding or delay of consent to any Transfer and the Tenant's
(or any other person's) only remedy in respect of the Landlord's withholding
or
delay of consent will be to bring an application for a declaration that such
transaction should be allowed.
.7
ASSIGNMENT
BY LANDLORD
The
Landlord may assign all or a part
of its interest in this Lease without the Tenant's knowledge or
consent.
16 ARTICLE
INSURANCE
.1
TENANT
TO INSURE
At
its sole cost, risk and expense, the
Tenant shall take out and keep in force during the Term and any period of
occupancy of the Leased Premises by the Tenant prior to the Commencement
Date,
standard fire and extended coverage, contractual and tenant's legal liability
coverage, lease agreement contractual coverage, and malicious damage insurance
on the stock-in-trade, furniture, fixtures, glass improvements and all other
contents of the Leased Premises to their full replacement value and
comprehensive general liability insurance in an amount of not less than five
million dollars ($5,000,000.00) and tenant's fire legal liability insurance
all
in amounts and with policies in a form satisfactory to the Landlord with
insurers acceptable to the Landlord. Each such policy shall name the
Landlord as an additional insured as its interest may appear and such
comprehensive public liability insurance shall contain a provision for cross
liability as between the Landlord and the Tenant. Each policy other
than the public liability policies shall provide that the insurer shall not
have
any right of subrogation against the Landlord, its servants, agents or employees
on account of any loss or damage covered by such insurance or on account
of
payments made to discharge claims against or liabilities of the Landlord
or
Tenant covered by such insurance. The cost or premium for each and
every such policy shall be paid by the Tenant. The Tenant shall
obtain from the insurers under such policies, undertakings to notify the
Landlord in writing at least thirty (30) days prior to any cancellation or
reduction in coverage thereof. If the Tenant fails to take out or
keep in force, or provide to the Landlord proof, as hereafter contemplated,
of
such insurance, the Landlord shall have the right to place such insurance
on
behalf of the Tenant and to pay the premium therefor and in such event, the
Tenant shall repay to the Landlord the amount paid therefor, which repayment
shall be deemed to be Additional Rent payable on the first day of the next
month
following the said payment by the Landlord. The Tenant agrees to
provide the Landlord with current copies of the insurance policies or
certificate of insurance as described herein.
.2
NOT
TO
AFFECT LANDLORD'S INSURANCE
The
Tenant will not upon the Leased
Premises do or permit to be done, or omit to do anything which causes or
has the
effect of causing the rate of insurance upon the Development or any part
thereof
to be increased and if the insurance rate shall be thereby increased by any
action of the Tenant, the Tenant shall pay to the Landlord on demand as
Additional Rent the amount by which the insurance premiums shall be so
increased. The Tenant will not store or permit to be stored upon or
in the Leased Premises anything of a dangerous, inflammable or explosive
nature
nor anything which would have the effect of increasing the Landlord's insurance
costs or of leading to the cancellation of such insurance. It is
agreed that if any insurance policy upon the Leased Premises shall be cancelled
by the insurer by reason of the use and occupation of the Leased Premises
or any
part thereof by the Tenant or by any assignee, sub-tenant, concessionaire
or
licensee of the Tenant, or by anyone permitted by the Tenant to be upon the
Leased Premises, at its option, the Landlord may, forthwith enter upon the
Leased Premises and rectify the situation causing such cancellation or rate
increase, and the Tenant shall forthwith on demand pay to the Landlord the
costs
of the Landlord related to such rectification together with a supervisory
fee of
twenty (20%) percent of such cost and with interest on the aggregate of the
foregoing from the date funds were expended by the Landlord.
.3
LANDLORD
TO INSURE
Throughout
the Term, the Landlord shall
carry fire insurance with normal coverage endorsements in respect of the
buildings and improvements forming part of the Development (but excluding
the
Tenant's trade fixtures, merchandise, stock-in-trade, furniture or any other
improvements installed in the Leased Premises by or on behalf of the Tenant,
including the Tenant's Work) in an amount not less than ninety (90%) percent
of
the full replacement cost (excluding the cost of foundations, footings,
underground utilities and architects and other fees associated with these
items)
from time to time, on a stated amount basis, provided that such insurance,
without further consent or notice to the Tenant, may have a deductible amount,
provided that such deductible amount shall not exceed three (3%) percent
of the
amount insured under such policy or policies. The Landlord may, but
shall not be obligated to, carry such other insurance including public liability
insurance and rental loss insurance relating to the Lands or such risks and
perils in relation thereto or the Landlord's interest derived therein as
the
Landlord may so determine. All such insurance so obtained by the
Landlord shall be for the sole benefit of the Landlord and the Tenant shall
be
entitled to no interest therein or benefit thereof.
18 ARTICLE
TENANT ALTERATIONS
.1
PAINTING,
DECORATING AND ALTERATIONS
Provided
it first obtains the consent
of the Landlord, at any time and from time to time and at its expense, the
Tenant may paint and decorate the interior of the Leased Premises in accordance
with the manner and standard referred to in Article 6.1, and make such changes,
alterations, additions and improvements in and to the Leased Premises as
will in
the judgement of the Tenant better adapt the Leased Premises for the purposes
of
its business; provided, however, that no changes, alterations, additions
or
improvements to the structure, any perimeter wall, the sprinkler system,
the
heating, ventilating, air-conditioning, plumbing, electrical or mechanical
equipment or the concrete floor or the roof shall be made without the prior
written consent of the Landlord. All changes, alterations, additions
and improvements, whether structural or otherwise, shall be carried out in
accordance with the reasonable requirements or rules of the Landlord and
shall
comply with all applicable statutes, regulations or bylaws of any municipal,
provincial or other governmental authority. As part of the process of
the Landlord's examination and approval of the Tenant's plans and specifications
and materials, such plans and specifications and materials, in addition to
being
submitted to the Landlord's Architect, may be submitted by the Landlord to
other
architects, engineers, and special consultants and progress and completion
of
the work may require supervision and/or inspection by the Landlord or any
of the
foregoing persons on behalf of the Landlord. Any fees and costs
incurred by the Landlord in relation to the foregoing will be paid by the
Tenant
to the Landlord within fifteen (15) days of billing. The Tenant shall
pay to the Landlord the amount of any increase for any insurance coverage
of the
Landlord directly attributable to any action by the Tenant as hereinbefore
in
this Article 10.1 provided and the Tenant covenants that such insurance shall
not thereby be made liable to avoidance or cancellation by the insurer by
reason
of such changes, alterations, additions or improvements.
.2
LANDLORD'S
PROPERTY
At
the expiration of the Term all
changes, alterations, additions and improvements made to or installed upon
or in
the Leased Premises and which in any manner are attached in, to, on or under
the
floors, walls or ceilings (other than unattached movable trade fixtures)
shall
remain upon and be surrendered to the Landlord with the Leased Premises as
part
thereof, without disturbance, molestation or injury and shall be and become
the
absolute property of the Landlord without any payment or indemnity by the
Landlord or any third party to the Tenant or any other
party. Notwithstanding the foregoing provisions of this Article 10.2,
unless the Lease has been terminated pursuant to Article 6.8.1, the Landlord
may
by notice in writing require the Tenant to remove the aforesaid changes,
alterations, additions and improvements in whole or in part, in which event
the
Tenant shall remove the same and restore to the extent so requested the Leased
Premises to the state in which they were prior to the commencement of any
of the
Tenant's Work and shall make good any damage or injury caused to the Leased
Premises resulting from such installation and removal, reasonable wear and
tear
and the Landlord's repair obligations only excepted. The obligations
of the Tenant under this Article 10.2 shall survive the expiration or sooner
termination of the Term.
.3
PROHIBITIONS
The
Tenant, its employees, agents and
representatives, are expressly prohibited from entering upon the roof of
the
Building or any Other Buildings for any reason whatsoever. The Tenant
shall not make any repairs, openings or additions to any part of the exterior
of
the Leased Premises, nor place any attachments, decorations, signs or displays
in or upon any Common Area or the exterior of the Leased Premises failing
which
the Tenant will be held responsible for all ensuing costs and damages whether
to
remove such items or to effect repairs needed as a result of such acts and
shall
pay the cost thereof to the Landlord forthwith on demand together with a
supervisory fee to the Landlord of twenty (20%) percent of such cost as well
as
interest at the rate specified in Article 3.5 hereof on the aggregate of
the
foregoing from the date funds are so expended by the Landlord.
.4
NO
LIENS
The
Tenant shall not create any
mortgage, conditional sale agreement, security under the section 178 of the
Bank
Act of Canada or under the Personal Property Act of British
Columbia or any other encumbrance (individually, an “Encumbrance”) in respect of
its improvements, trade fixtures, any Leasehold Improvements, goods or
merchandise or permit any such Encumbrance to attach to the Leased Premises.
The
Tenant shall promptly pay all its contractors and suppliers and shall do
any and
all things necessary in order to prevent any construction or other liens
(individually, a “Lien”) or orders for the payment of money to be registered
against the Leased Premises. If any Lien or Encumbrance is granted or
filed, the Tenant shall discharge the same forthwith, after notice thereof
is
given to the Tenant, at the Tenant’s expense. If the Tenant shall
fail to cause any such Lien or Encumbrance to be discharged, as aforesaid,
then,
in addition to any other right or remedy of the Landlord, the Landlord may,
but
shall not be so obligated, discharge same by paying the amount claimed to
be due
into Court or directly to any such Lien claimant or Encumbrance holder and
the
amount so paid by the Landlord and all costs and expenses, including solicitor’s
fees, on a solicitor client basis, incurred for the discharge of such Lien
or
Encumbrance shall be due and payable by the Tenant to the Landlord as Additional
Rent on demand.
20 ARTICLE
PUBLIC UTILITIES AND TAXES
.1
PUBLIC
UTILITIES, BUSINESS TAX
The
Tenant shall pay and discharge as
the same fall due all charges for utilities provided to or consumed on the
Leased Premises during the Term, including telephone installations, water,
electrical power, gas and telephone charges metered separately or charged
separately by the authority providing the same to the Leased Premises as
well as
any charges of any such authority based thereon all other charges similar
in
nature, and shall also pay and discharge as the same fall due all business
taxes
and rates and personal property taxes, licence fees or similar fees which
may be
imposed by any municipal, legislative or other authority in respect of the
use
or occupancy of the Leased Premises or any personal property situate thereon
or
in respect of any fixtures, machinery, equipment or apparatus installed in
the
Leased Premises (or elsewhere in the Development by the Tenant).
PROVIDED
ALWAYS that if any of the
aforesaid utilities are provided to the Leased Premises through a common
metering device or on any other shared basis with any other premises or portions
of the Building or the Development, the Tenant shall pay to the Landlord
forthwith on demand, from time to time by the Landlord, the Tenant's share
of
the cost thereof based on such allocation as the Landlord may reasonably
determine in relation to the other premises or portions of the Building or
the
Development being so served.
.2
PAYMENT
OF REAL PROPERTY TAXES BY LANDLORD
Without
derogating from any of the
Tenant's obligations with respect to payment of Additional Rent, the Landlord
shall pay or cause to be paid all Real Property Taxes when due to the
municipality or other taxing authorities having jurisdiction, PROVIDED ALWAYS
that the Landlord may postpone such payment to the extent permitted by law
if
pursuing in good faith any appeal against the imposition thereof.
.3
INCREASE
IN REAL PROPERTY TAXES ATTRIBUTABLE TO TENANT
From
time to time if requested by the
Landlord, the Tenant shall pay to the Landlord forthwith on demand by the
Landlord, an amount equal to any increase in the amount of Real Property
Taxes
by reason of any installation, alteration, or use made in or to the Leased
Premises by or for the benefit of the Tenant or any party claiming by or
through
the Tenant.
22 ARTICLE
EXCLUSION OF LIABILITY AND INDEMNITY
.1
EXCLUSION
OF LIABILITY
It
is agreed between the Landlord and
the Tenant that except for the negligence or misconduct of the Landlord,
its
agents, servants or employees:
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.1
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the
Landlord, its agents, servants and employees shall not be liable
for
damage or injury to any property of the Tenant which is entrusted
to the
care or control of the Landlord, its agents, servants or
employees;
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.2
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the
Landlord, its agents, servants and employees shall not be liable
nor
responsible in any way for any personal or consequential injury
of any
nature whatsoever that may be suffered or sustained by the Tenant
or any
employee, agent, customer, invitee or licensee of the Tenant or
any other
person who may be upon the Leased Premises or the Development or
for any
loss of or damage or injury to any property belonging to the Tenant
or to
its employees or to any other person while such property is on
the Leased
Premises or the Development and, in particular (without limiting
the
generality of the foregoing) the Landlord shall not be liable for
any
damage or damages of any nature whatsoever to any such property
caused by
the failure, by reason of a breakdown or other cause, to supply
adequate
drainage, snow or ice removal, or by reason of the interruption
of any
public utility or service or in the event that steam, water, rain
or snow
may leak into, issue or flow from any part of the Development or
from the
water, steam, sprinkler, or drainage pipes or plumbing works, or
from
another place or quarter or for any damage caused by anything done
or
omitted by any tenant, but the Landlord shall, after notice of
the same
and where it is within its obligation so to do, use all reasonable
diligence to remedy such condition, failure or interruption of
service
when not directly or indirectly attributable to the Tenant, and
the Tenant
shall not be entitled to any abatement of Rent or damages in respect
of
any such condition, failure or interruption of
service;
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.3
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the
Landlord, its agents, servants, employees or contractors shall
not be
liable for any damage suffered to the Leased Premises or the contents
thereof by reason of the Landlord, its agents, servants, employees
or
contractors entering upon the Leased Premises to undertake any
examination
thereof or any work therein or in the case of an
emergency.
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.4
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the
Tenant hereby expressly releases the Landlord from any claims,
damages,
judgments, losses or awards caused by or arising from perils insured
against or required to be insured against by the Tenant under this
Lease.
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.2
INDEMNIFICATION
Notwithstanding
any other provision of
this Lease to the contrary, the Tenant shall:
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.1
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be
liable to the Landlord for; and
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.2
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indemnify
and hold harmless the Landlord, its agents, advisors, servants
and
employees from and against:
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any
and all liabilities, claims, suits or actions, costs, damages and
expenses
(and without limiting the generality of the foregoing, any direct
losses,
costs, damages and expenses of the Landlord including costs on
a
solicitor-client basis) which may be brought or made against the
Landlord,
or which the Landlord may pay or incur as a result of or in connection
with:
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.3
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any
breach, violation or non-performance of any covenant, condition,
agreement
in this Lease set forth and contained on the part of the Tenant
to be
fulfilled, kept, observed and
performed;
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.4
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any
damage to property, including property of the Landlord, occasioned
by the
operations of the Tenant's business on, or the Tenant's occupation
of, the
Leased Premises; or
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.5
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any
injury to person or persons, including death resulting at any time
therefrom, occasioned by the operation of the Tenant's business
on, or the
Tenant's occupation of, the Leased
Premises;
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such
indemnity and hold harmless to survive the expiration of the Term. In
case the Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against the Tenant, then the Tenant shall protect
and
hold the Landlord harmless and shall pay all costs, expenses and reasonable
legal fees incurred or paid by the Landlord in connection with such
litigation. The Tenant shall also pay costs, expenses and reasonable
legal fees that are incurred or paid by the Landlord in enforcing the covenants
and agreements contained in this lease, unless a Court shall otherwise
decide.
24 ARTICLE
LANDLORD'S RIGHTS AND REMEDIES
.1
DEFAULT
If
and whenever:
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.1
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the
Rent hereby reserved, or any part thereof, be not paid when due,
or within
5 business days of written demand for payment of same or there
is
non-payment of any other sum which the Tenant is obligated to pay
under
any provisions hereof;
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.2
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the
Term or a substantial portion of any goods, chattels, equipment
or other
personal property of the Tenant, shall be taken or be exigible
in
execution or attachment, or if a writ of execution shall issue
against the
Tenant;
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.3
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the
Tenant shall become insolvent
or commit any act of bankruptcy or become bankrupt or take the
benefit of
any Act that may be in force for bankrupt or insolvent debtors,
or become
involved in a winding-up proceedings, voluntary or otherwise, or
if a
receiver shall be appointed for the business, property, affairs
or
revenues of the Tenant, or if any governmental authority should
take
possession of the business or property of the
Tenant;
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.4
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the
Tenant shall fail to commence business actively and diligently
from and on
the Leased Premises within thirty (30) days after the Commencement
Date;
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.5
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the
Tenant shall make a bulk sale of its goods or move or commence,
attempt or
threaten to move its goods, chattels and equipment out of the Leased
Premises (other than in the routine course of its business) or
shall, for
a period of ten (10) consecutive days (without the prior written
consent
of the Landlord), fail to conduct business from the Leased
Premises;
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.6
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the
Tenant shall vacate or abandon the Leased Premises in whole or
in
part;
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.7
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the
Tenant shall Transfer or purport to Transfer any portion or all
of the
Term of the Leased Premises without the written consent of the
Landlord or
control of the Tenant if a corporation is changed without the prior
written consent of the Landlord, in either case as required pursuant
to
Article 8;
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.8
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the
Tenant shall fail to remedy any condition giving rise to cancellation,
threatened cancellation, reduction or threatened reduction of any
insurance policy on the Development or any part thereof within
twenty-four
(24) hours after notice thereof by the Landlord;
or
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.9
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the
Tenant shall not observe, perform and keep any other of the covenants,
agreements, provisions, stipulations and conditions herein to be
observed,
performed and kept by the Tenant (other than the payment of Basic
Rent or
Additional Rent) and shall persist in such failure for ten (10)
days after
notice by the Landlord requiring that the Tenant remedy, correct,
desist
or comply (or in the case of any such breach which reasonably would
require more than ten (10) days to rectify unless the Tenant shall
commence rectification within the said ten (10) day period and
thereafter
promptly and diligently and continuously proceed with the rectification
of
the breach);
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.10
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the
Tenant fails to discharge a security interest granted in respect
of the
Leasehold improvements or to discharge a notice filed in respect
of the
Leased Premises under section 49 of the Personal Property Security
Act of British Columbia after demand by the
Landlord;
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then
and
in any of such cases, at the option of the Landlord, the full amount
of the current month's and the next ensuing three (3) month's Rent shall
immediately become due and payable as Additional Rent and the Landlord may
immediately distrain for the same, together with any arrears then unpaid,;
and
the Landlord may without notice or any form of legal process forthwith re-enter
upon and take possession of the Leased Premises or any part thereof in the
name
of the whole and remove and sell the Tenant's goods, chattels, equipment
and any
other property therefrom, any rule of law or equity to the contrary
notwithstanding; and the Landlord may seize and sell such goods, chattels,
equipment and other property of the Tenant as are in the Leased Premises
or at
any place to which the Tenant or any other person may have removed them in
the
same manner as if they had remained and had been distrained upon the Leased
Premises; and such sale may be effected in the discretion of the Landlord
either
by public auction or by private treaty, and either in bulk or by individual
item, or partly by one means and partly by another, all as the Landlord in
its
entire discretion may decide, and the Tenant waives and renounces the
benefit of any present or future statute or amendments thereto taking away
or
limiting the Landlord's right of distress.
.2
CONSEQUENCES
OF DEFAULT
If
and whenever the Landlord is
entitled to re-enter the Leased Premises, the Landlord may terminate this
Lease
and the Term by giving written notice of termination to the Tenant or by
posting
notice of termination in the Leased Premises, and in such event the Tenant
will
forthwith vacate and surrender the Leased Premises. Alternatively,
the Landlord may from time to time without terminating the Tenant's obligations
under this Lease, make alterations and repairs considered by the Landlord
necessary to facilitate a subletting and sublet the Leased Premises or any
part
thereof as agent of the Tenant for such term or terms and at such rent or
rents
and upon such other terms and conditions as the Landlord in its sole discretion
considers advisable. Upon each subletting all rent and other monies
received by the Landlord from the subletting shall be applied, first to the
payment of indebtedness other than Rent due hereunder from the Tenant to
the
Landlord, second to the payment of costs and expenses of the subletting
including brokerage fees and solicitors fees and the cost of alterations
and
repairs, and third to the payment of Rent due and unpaid
hereunder. The residue, if any, shall be held by the Landlord and
applied in payment of future Rent as it becomes due and payable. If
the Rent received from the subletting during a month and any surplus then
held
by the Landlord to the credit of the Tenant is less than the Rent to be paid
during that month by the Tenant, the Tenant will pay the deficiency to the
Landlord. The deficiency will be calculated and paid
monthly. No re-entry by the Landlord will be construed as an election
on its part to terminate this Lease unless a written notice of that termination
is given to the Tenant or posted as aforesaid. Despite a subletting
without termination, the Landlord may elect at any time to terminate this
Lease
for a previous breach. If the Landlord so terminates this Lease, the
Tenant shall pay to the Landlord on demand therefor:
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.1
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Basic
Rent and Additional Rent accrued due up to the time of re-entry
or
termination, whichever is later, plus the next three (3) months
Rent
payable as Additional Rent as provided in Article
13.1;
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.2
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all
costs payable by the Tenant pursuant to the provisions of this
Lease up
until the date of re-entry or termination, whichever is
later;
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.3
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such
expenses as the Landlord may incur or has incurred in connection
with
re-entering or terminating and re-letting, or collecting sums due
or
payable by the Tenant or realizing upon assets seized, including,
without
limitation, brokerage expenses, legal fees and disbursements determined
on
a full indemnity basis, and including the expense of keeping the
Leased
Premises in good order and repairing or maintaining the same or
preparing
the Leased Premises for re-letting;
and
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.4
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as
liquidated damages for the loss of Rent and other income of the
Landlord
expected to be derived from this Lease during the period which
would have
constituted the unexpired portion of the Term had the Lease not
been so
terminated, the amount, if any, by which the rental value of the
Leased
Premises for such period established by reference to the terms
and
provisions of this Lease exceeds the rental value of the Leased
Premises
for such period established by reference to the terms and provisions
upon
which the Landlord re-lets them, if such re-letting is accomplished
within
a reasonable time after termination of this Lease, and otherwise
with
reference to all market and other relevant
circumstances. Rental value is to be computed in each case by
reducing to present worth at an assumed interest rate of ten percent
(10%)
per annum all Rent and other amounts to become payable for such
period and
where the ascertainment of amounts to become payable requires the
same
computation, the Landlord may make estimates and assumptions of
fact which
will govern unless shown to be unreasonable or
erroneous;
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and
all
such obligations of the Tenant shall survive the expiration of the
Term.
.3
NONWAIVER
The
failure of the Landlord to insist
in any one or more cases upon the strict performance of any of the covenants
of
this Lease or to exercise any option herein contained shall not be construed
as
a waiver or a relinquishment for the future of such covenant or option and
the
acceptance of Rent by the Landlord with knowledge of the breach by the Tenant
of
any covenants or conditions of this Lease shall not be deemed to be a waiver
of
such breach and no waiver by the Landlord of any provisions of this Lease
shall
be deemed to have been made unless expressed in writing by the
Landlord.
.4
RIGHT
OF LANDLORD TO PERFORM TENANT'S COVENANTS
If
at any time and so often as the same
shall happen, the Tenant shall make default in the observance or performance
of
any of the Tenant's covenants herein contained, then the Landlord may, but
shall
not be obligated to, without waiving or releasing the Tenant from its
obligations under the terms of this Lease, itself observe and perform the
covenant or covenants in respect of which the Tenant is in default, and in
that
connection may pay such monies as may be required or as the Landlord may
reasonably deem expedient, and the Landlord may thereupon charge all monies
so
paid and expended by it to the Tenant together with interest thereon from
the
date upon which the Landlord shall have paid out the same; provided, however,
that if the Landlord commences and completes either the performance of any
such
covenant or covenants or any part thereof, the Landlord shall not be obliged
to
complete such performance or be later obliged to act in like
fashion.
.5
TIME
FOR PAYMENT AND LEGAL COSTS
Unless
otherwise expressly provided in
the Lease, all sums and costs paid by the Landlord, including, without
limitation, costs paid between solicitor and client, on account of any default
by the Tenant under this Lease, shall be payable to the Landlord by the Tenant
forthwith, with interest thereon at the rate stipulated in Article 3.4 from
date on payment of such sums or costs by the Landlord, collectible as
Rent.
Unless
otherwise expressly provided in
the Lease, all amounts (other than Rent) required to be paid by the Tenant
to
the Landlord pursuant to this Lease shall be payable on demand at the place
designated by the Landlord for payment of Rent and if not so paid within
ten
(10) days of such demand shall be treated and collectible as Rent in arrears
and
the Landlord may, in addition to any other remedy it may have for the recovery
of the same, distrain for the amount thereof as Rent in arrears.
.6
BANKRUPTCY
AND INSOLVENCY
The
Tenant hereby agrees that unless
the Landlord expressly consents to the Tenant repudiating this Lease, the
Tenant
hereby waives its right to repudiate the Lease if it files a proposal or
notice
of intent to file a
proposal under the Bankruptcy
and Insolvency Act of Canada, as amended or replaced from time to time or
any similar provision of any other enactment.
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13.6.1
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The
Tenant covenants and agrees to provide written notice to the Landlord
of
any notice (the "Insolvency Notice") received by the Tenant from
any of
its creditors under Section
244 of the Bankruptcy and
Insolvency Act of Canada, as amended or replaced from time to time,
such notice to be delivered to the Landlord within two business
days of
receipt of such notice by the Tenant. Delivery of any
Insolvency Notice by any creditor to the Tenant shall constitute
an event
of default hereunder.
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.7
REMEDIES
CUMULATIVE
All
rights and remedies of the Landlord
in this Lease contained shall be cumulative and not alternative and are not
dependent the one on the other and mention of any particular remedy or remedies
of the Landlord in respect of any default by the Tenant shall not preclude
the
Landlord from any other remedy in respect thereof, whether available at law
or
in equity or as expressly provided for herein.
26 ARTICLE
MORTGAGES AND ASSIGNMENT BY LANDLORD
.1
SALE
OR FINANCING OF DEVELOPMENT
The
Landlord may sell, transfer, lease,
mortgage, encumber or otherwise dispose of the Development or any portion
thereof or any interest of the Landlord therein, in every case without the
consent of the Tenant, and the rights of the Landlord under this Lease may
be
mortgaged, charged, transferred or assigned in conjunction
therewith. The Tenant acknowledges that in the event of the sale or
lease by the Landlord of the Lands or a portion thereof containing the Leased
Premises or the assignment by the Landlord of this Lease or of any interest
of
the Landlord hereunder, to the extent that any such purchaser, lessee 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.
.2
SUBORDINATION
AND ACKNOWLEDGEMENT
This
Lease and all of the rights of the
Tenant hereunder are, and shall at all times be, subject and subordinate
to any
and all mortgages, trust deeds or the charge or lien resulting from any other
method of financing or refinancing or any renewals, extensions, modifications,
consolidations and replacements thereof, now or hereafter in force against
the
Lands and Building whether in whole or in part and whether or not affecting
only
the Leased Premises or whether same be a blanket mortgage or mortgages and/or
deeds of trust affecting other property as well and, upon the request of
the
Landlord, the Tenant will subordinate this lease and all of its rights
hereunder, in such form or forms as the Landlord may require, to any such
mortgage or mortgages, trust deeds or the charge or lien resulting from any
other method of financing or refinancing and to all advances made or hereafter
to be made upon the security thereof, and will, if requested, attorn to the
holder thereof. The Tenant shall execute such postponements of any
documents which the Tenant may have registered pursuant to Section , and
such other documents as the Landlord may request in confirmation of such
subordination. No subordination by the Tenant shall have the effect
of permitting the holder of any mortgage or charge or other security to disturb
the occupation and possession by the Tenant of the Leased Premises, so long
as
the Tenant shall perform all of the terms, covenants, conditions, agreements
and
provisos contained in this Lease and so long as the Tenant contemporaneously
executes, a document or attornment required by such mortgagee or other
encumbrancer.
.3
OFFSET
STATEMENT
Within
ten (10) days
following request therefor by the Landlord, from time to time, the Tenant
shall
execute and deliver to the Landlord, to any mortgagee, assignee, or transferee
of the Lease or the Development, a certificate in writing as to the then
status
of this Lease, including whether it is in full force and effect, as modified
or
unmodified, confirming the Rent payable hereunder, the state of accounts
between
the Landlord and the Tenant and the existence or nonexistence of defaults
and
any other matters pertaining to the Lease which the Landlord shall request
be
included in such certificate.
.4
REGISTRATION
The
parties agree that this Lease need
not be provided by the Landlord in registerable form. The Tenant
shall not register this Lease against title to the Lands. The Tenant
may, at the cost and expense of the Tenant, cause notice of this Lease to
be
registered in the appropriate Land Title Office in the Province of British
Columbia provided the notice is in a form satisfactory to the Landlord’s
solicitor. In the event that the Landlord requires this Lease to be
registered in priority to any mortgage, trust deed or trust indenture which
may
now or at any time hereafter affect in whole or in part the Leased Premises
or
the Development, the Tenant shall execute promptly any certificate or other
instrument which may be required by the Landlord to give effect to such
registration.
28 ARTICLE
OVERHOLDING TENANT
.1
NO
TACIT RENEWAL
In
the event the Tenant remains in
possession of the Leased Premises after the end of the Term and without the
execution and delivery of a new lease, there shall be no tacit renewal of
this
Lease and the Term hereby granted and the Tenant shall be deemed to be occupying
the Leased Premises as a Tenant from month to month on the terms and conditions
contained herein, except that the Basic Rent shall be one hundred and fifty
percent (150%) of the monthly instalment of Basic Rent required to be paid
pursuant to this Lease in the immediately preceding Year of the Term, but
otherwise on the terms and conditions of this Lease which shall be read with
such changes as are appropriate to a monthly tenancy; provided, however,
that
this provision shall not authorize the Tenant to so overhold where the Landlord
has objected to such overholding or has required the Tenant to vacate the
Leased
Premises.
30 ARTICLE
QUIET POSSESSION
.1
QUIET
POSSESSION
Upon
the Tenant paying the Rent hereby
reserved and all other charges herein provided and observing, performing
and
keeping the covenants and agreements contained in this Lease, the Tenant
shall
and may peaceably possess and enjoy the Leased Premises for the Term granted
without any interruption or disturbance from the Landlord or any person or
persons lawfully claiming by, from or under it.
32 ARTICLE
LEGAL RELATIONSHIPS
.1
NO
PARTNERSHIP
Nothing
contained in this Lease nor in
any acts of the Landlord and Tenant pursuant to this Lease shall be deemed
to
create any relationship between the parties hereto other than the relationship
of Landlord and Tenant, it being expressly provided that there is no intention
to create a relationship of partners or a joint venture.
.2
JOINT
AND SEVERAL LIABILITY
Should
the Tenant comprise two (2) or
more persons, each of them, and not one for the other or others, shall be
jointly and severally bound with the other or others for the due performance
of
the obligations of the Tenant hereunder. Where required by the
context hereof the singular shall include the plural and the masculine gender
shall include either the feminine or neuter genders, as the case may be and
vice
versa.
.3
SUCCESSORS
AND ASSIGNS
This
Lease and everything herein
contained shall enure to the benefit of and be binding upon the parties hereto,
the successors and assigns of the Landlord and the approved heirs, executors,
administrators, successors and assigns of the Tenant.
34 ARTICLE
NOTICES
.1
NOTICES
Any
notices herein provided or
permitted to be given by the Tenant to the Landlord shall, except in the
event
of actual or threatened mail strike during which time all notices must be
delivered by hand or by registered courier, be sufficiently given if delivered
or sent by registered mail, postage prepaid, posted within British Columbia
addressed to the Landlord at:
Alpha
Equities Ltd.
000
X. 0xx Xxxxxx
Xxxxxxxxx,
Xxxxxxx
Xxxxxxxx X0X 0X0
Attention: Xxx
Xxxxxx
or
to
such other address as might be designated in writing by the Landlord from
time
to time, and any notice herein provided or permitted to be given by the Landlord
to the Tenant shall, except in the event of actual or threatened mail strike
during which time all notices must be delivered by hand or by registered
courier, be sufficiently given if delivered or sent by registered mail, postage
prepaid and posted within British Columbia, addressed to the Tenant at the
Leased Premises.
Notice
given as aforesaid, posted in
British Columbia, shall be conclusively deemed to have been given on the
third
business day following the day on which such notice was mailed, or if delivered,
on the date of delivery. The Landlord or the Tenant may at any time
give notice in writing to the other of a change of address for the Landlord
and
from and after the giving of such notice the address therein specified shall
be
deemed to be the address of the party giving such notice for the giving of
notice hereunder. The word "notice" in this Article 18.1 shall
be deemed to include any request, statement, demand, or other writing in
this
Lease provided or permitted to be given by the Landlord to the Tenant or
by the
Tenant to the Landlord.
36 ARTICLE
GENERAL
.1
COLLATERAL
REPRESENTATIONS AND AGREEMENTS
The
Tenant acknowledges that the Leased
Premises are taken without representation of any kind on the part of the
Landlord or its agent other than as set forth herein, that the plans attached
as
Schedule "A" set forth the general layout of the Building and shall not be
deemed to be a representation or agreement of the Landlord that the Building
will be exactly as indicated on such plans, and that nothing contained in
the
Lease shall be construed so as to prevent the Landlord from varying or altering
the location or size of parking areas, driveways, sidewalks or from erecting
additional buildings or extending buildings after the Commencement Date and
without limiting the foregoing, the Landlord shall have the unrestricted
right
to add additional lands to the Development which upon such addition shall
be
included within the definition of the Lands and Development, to construct
additional buildings from time to time on the Lands, add or change any building,
or alter the ingress and egress to the Development and to change the loading
or
unloading facilities and service entrances from time to time without in any
way
being responsible to the Tenant, provided only that the Landlord shall at
all
times provide reasonable access to the Leased Premises across the Lands for
the
Tenant, its employees, suppliers, agents, licensees and
invitees. Subject to the foregoing and to the obligations of the
Landlord to maintain at all times adequate parking facilities, the Landlord
may
transfer or dispose of portions of the Lands to the owners of abutting property,
or dedicate or transfer to the municipal authorities portions of the Lands
for
road-widening and other purposes, and when and so often as the Landlord shall
dispose or transfer or dedicate any portion of the Lands, then the reference
herein to the Lands shall mean and refer to the portion of the Lands remaining
after any such transfer, disposition or dedication together with any adjacent
land which may be acquired by the Landlord on any such transfer, disposition
or
dedication. The Tenant further agrees that no representative of or
agent of the Landlord is or shall be authorized or permitted to make any
representation with reference to this Lease or to vary or modify this Lease
in
any way and that this Lease contains all the agreements and conditions made
between the Landlord and the Tenant hereto respecting the Leased
Premises. Any addition to or alteration of or change in this Lease or
other agreements hereinafter made or conditions created, to be binding, must
be
made in writing and signed by the Landlord and the Tenant.
.2
NO
OFFER
The
Landlord shall not be deemed to
have made an offer to the Tenant by furnishing to the Tenant with a copy
of this
Lease with particulars inserted and, notwithstanding that the first or any
other
instalment of Basic Rent may be received by the Landlord when this Lease
is
received by it for signature, no contractual or other rights shall exist
or be
created between the Landlord and the Tenant as a result of this Lease until
such
time as all parties to this Lease have executed and delivered the
same.
.3
MANAGEMENT
OF DEVELOPMENT
The
Tenant acknowledges to the Landlord
that the Development may be managed by such party or parties as the Landlord
may
in writing designate and to all intents and purposes, the designated manager
of
the Development shall be the party at the Development authorized to deal
with
the Tenant on behalf of the Landlord.
.4
TIME
OF THE ESSENCE
Time
shall be of the essence of this
Lease.
.5
UNAVOIDABLE
DELAYS
In
the event that the Landlord shall be
delayed, hindered or prevented from the performance of any covenant hereunder
by
Force Majeure, the performance of such covenant shall be excused for the
period
during which such performance is rendered impossible and the time for
performance thereof shall be extended accordingly, but this shall not excuse
the
Tenant from the prompt payment of Rent or any other amount required to be
paid
by the Tenant under the provisions of this Lease.
.6
ACCORD
AND SATISFACTION
No
payment by the Tenant hereunder or
receipt by the Landlord of a lesser amount than the payment of Basic Rent
or
Additional Rent or any other payments herein stipulated shall be deemed to
be
other than on account of the stipulated sum, nor shall any endorsement or
statement on any cheque or any letter accompanying any cheque or payment
be
deemed an accord and satisfaction, and the Landlord may accept such cheque
or
payment without prejudice to the Landlord's right to recover the balance
due or
pursue any other remedy provided in this Lease.
.7
COMPETITION
ACT
No
provision of this Lease is intended
to apply or to be enforceable to the extent that it might give rise to any
offence under the Competition Act, RSC 1985, Chapter C-34 or any statute
that may be substituted therefor, as from time to time amended.
.8
COVENANTS
Each
of the terms and conditions of
this Lease to be performed and observed by the Tenant or by the Landlord,
as the
case may be, is and shall be construed as a covenant of the party so required
to
perform and observe the same.
.9
CONSENT
OR APPROVAL OF LANDLORD
Wherever
and whenever the consent,
approval or permission of the Landlord is required by the Tenant pursuant
to the
terms of this Lease and unless otherwise specifically provided, the Landlord
shall have the right to withhold or grant such consent, approval or permission
in its sole and arbitrary discretion. Such consent, approval or
permission must be in writing to be effective, and such consent, approval
or
permission must be obtained prior to the taking of the action to which the
same
refers.
.10 FOR
LEASE SIGNS
The
Landlord shall have the right
during the last six (6) months of the Term to place upon the Leased Premises
a
notice of reasonable dimensions stating that the Leased Premises are for
lease
and the Tenant shall not obscure or remove such notice or permit the same
to be
obscured or removed.
.11
THE
COMMERCIAL TENANCY ACT
Each
of the Landlord and the Tenant
waives any and all provisions of the Commercial Tenancy Act (British
Columbia) or any statute that may be substituted therefor, as from time to
time
amended, to the extent that the same are inconsistent with or conflict with
the
terms and conditions of this Lease.
.12
NO
EXCLUSIVITY
This
Lease shall not in any way be
construed as giving to or conferring upon the Tenant any rights to carry
on any
business or undertaking in or from the Leased Premises to the exclusion of
third
parties in the Development.
.13
SCHEDULES
Any
and all schedules attached hereto
are deemed to be incorporated into and form part hereof.
.14
APPLICABLE
LAW
This
Lease shall be governed by and
construed in accordance with the laws in force in the Province of British
Columbia.
.15
HEADINGS
The
table of contents and headings in
this Lease are inserted for convenience of reference only and shall not affect
the construction of this Lease or any provision hereof.
.16
TENANT'S
ACCEPTANCE
The
Tenant hereby accepts the Lease of
the Leased Premises to be held by the Tenant, subject to the conditions,
restrictions and covenants set forth herein.
.17
SEVERABILITY
Should
any provision of this Lease be
unenforceable it shall be considered separate and severable from the remaining
provision of this Lease, which shall remain in force and be binding as though
the said provision had not been included.
38 ARTICLE
DEFINITIONS
In
this Lease, the following words,
phrases and expressions are used with the meanings described as
follows:
.1
ADDITIONAL
RENT
"Additional
Rent" for a Lease Year or
portion thereof means, in addition to the Basic Rent, all other amounts which
shall become due and payable hereunder by the Tenant, whether to the Landlord
or
otherwise, and includes, without limitation, the amount which is the aggregate
of:
|
(a)
|
the
Tenant's Proportionate Share of the HVAC
Costs,
|
|
(b)
|
the
Tenant's Proportionate Share of the Building Operation and Maintenance
Costs,
|
|
(c)
|
the
Tenant's Proportionate Share of the Development Operation and Maintenance
Costs,
|
|
(d)
|
the
Tenant's Proportionate Share of the Tax Cost,
and
|
|
(e)
|
management
and administrative charges of the Landlord equal to seven percent
(7%) of
the aggregate of Basic Rent.
|
In
each
case the items comprising or being deducted from the aforesaid costs or cost
are
to be allocated to such Lease Year by the Landlord in accordance with generally
accepted accounting practice, provided that if the Term commences other than
at
the beginning of a Lease Year or ends other than at the conclusion of a Lease
Year, a pro rata adjustment of the aforesaid costs for such Lease Year
shall be made, based on the length of the Term falling within such Lease
Year,
provided further that, unless otherwise specifically stated in the enabling
legislation giving rise thereto, the Tax Cost shall be deemed to accrue equally
from day to day in the calendar year to which the same related and shall,
if
adjustment is required as aforesaid, be adjusted on that basis and not on
a
straight pro rata basis.
.2
AREA
OF LEASED PREMISES
"Area
of Leased Premises" means the
area of the Leased Premises (expressed in square meters or square feet) equal
to
the Net Rentable Area of the Leased Premises plus an amount equal to the
product
of a fraction having as its numerator the Net Rentable Area of the Leased
Premises and as its denominator the sum of the Net Rentable Area of all premises
(whether leased or not) within the Building, multiplied by the total area
of the
Service Areas. The Area of the Leased Premises shall be determined by
the Landlord's Architect following completion of the Tenant's Work or any
subsequent construction by the Tenant and such determination shall, in the
absence of manifest error, be final and conclusive as to the Area of the
Leased
Premises.
.3
BASIC
RENT
"Basic
Rent" means the annual rent
payable by the Tenant to the Landlord in accordance with Article 3.1 for
each Year of the Term, being the amount set forth in
Article 1.2.
.4
BASIC
TERMS
"Basic
Terms" means each of those terms
defined as such in Article 1 of this Lease.
.5
BUILDING
"Building"
means the building in which
the Leased Premises are located as shown on Schedule "A1" hereto, as the
Building may be altered, reconstructed or expanded from time to time, together
with all improvements (including Leasehold Improvements), equipment and
facilities contained therein from time to time.
.6
BUILDING
OPERATION AND MAINTENANCE COSTS
"Building
Operation and Maintenance
Costs" means all of the Landlord's costs, charges and expenses for operating,
maintaining, managing, repairing, rebuilding, replacing, restoring, inspecting,
insuring, securing, supervising, owning and administering the Building including
the Common Areas and Common Facilities of the Building, if any, and includes
without limiting the generality of the foregoing:
|
(a)
|
the
cost of lighting, heating, ventilating, air-conditioning and supplying
water and other utilities to the Common Facilities and Common Areas,
as
aforesaid; cleaning and janitorial services relating to the Building;
repairs and replacements to the Building other than structural
repairs
required to be carried out by the Landlord pursuant to Article
6.6 but
including any non-structural changes made to the Building, required
by any
governmental or other agencies which regulate the opertion of the
Development; insurance premiums for any insurance required or permitted
to
be carried by the Landlord pursuant to the terms of this Lease
and related
only to the Building; the cost of window cleaning, painting, the
cost of
service contracts and independent contractors,
and
|
|
(b)
|
deleted;
|
and
there
shall be excluded from such costs the following:
|
(i)
|
payments
of principal and interest under any mortgage or mortgages on the
Development; and
|
|
(ii)
|
income
taxes assessed upon the income of the
Landlord;
|
and
there
shall be deducted from such costs the amount of proceeds actually recovered
by
the Landlord from insurance and relating to damage, the cost of repair of
which
was included in Building Operation and Maintenance Costs.
.7
COMMENCEMENT
DATE
"Commencement
Date" means the date
referred to in Article 1.4.1.
.8
COMMON
AREAS
"Common
Areas" means those areas
located either in the Building or on the Lands but not in any Other Building,
that are not intended for lease and designated (which designation may be
changed
from time to time) by the Landlord as Common Areas set aside by the Landlord
for
the common or joint use and benefit of the Tenant, its employees, customers
and
other entities in common with others entitled to the use and benefit of such
areas in the manner and for the purposes established or altered pursuant
to the
terms of this Lease.
.9
COMMON
FACILITIES
"Common
Facilities" means the
electrical, heating, ventilating, air conditioning, plumbing and drainage
equipment, any music and public address systems, installations and any
enclosures constructed therefor, fountains, service rooms, customer and service
stairways, escalators, signs, lamps, standards, public washroom facilities
and
all other facilities improvements, equipment and installations which are
provided and designated (and which designation may be changed from time to
time)
by the Landlord for the common or joint use and benefit of the occupants
of the
Development.
.10 DEVELOPMENT
"Development"
means the Development
Lands, Building, Other Buildings and all buildings and improvements existing
on
the Development Lands from time to time.
.11
DEVELOPMENT
LANDS
"Development
Lands" means those lands
located in the City of Richmond legally described as:
|
(a)
|
Parcel
Identifier No: 000-000-000, Xxx X, Xxxxxxx 00, Xxxxx 0 Xxxxx, Xxxxx
0
Xxxx, Xxx Xxxxxxxxxxx Xxxxxxxx, Xxxx
00000;
|
|
(b)
|
Parcel
Identifier No: 000-000-000, Xxx X, Xxxxxxx 00, Xxxxx 0 Xxxxx, Xxxxx
0
Xxxx, Xxx Xxxxxxxxxxx Xxxxxxxx, Xxxx
00000;
|
|
(c)
|
Parcel
Identifier No: 000-000-000, Xxx 0, Xxxxxxx 00, Xxxxx 0 Xxxxx, Xxxxx
5
West, New Westminster District, Plan
LMP5334;
|
|
(d)
|
Parcel
Identifier No: 000-000-000, Xxx 0, Xxxxxxx 00, Xxxxx 0 Xxxxx, Xxxxx
5
West, New Westminster District, Plan
LMP5334;
|
|
(e)
|
Parcel
Identifier No: 000-000-000, Xxx 0, Xxxxxxx 00, Xxxxx 0 Xxxxx, Xxxxx
5
West, New Westminster District, Plan
LMP5334;
|
|
(f)
|
Parcel
Identifier No: 000-000-000, Xxx 0, Xxxxxxx 00, Xxxxx 0 Xxxxx, Xxxxx
5
West, New Westminster District, Plan
LMP5334.
|
.12 DEVELOPMENT
OPERATION AND MAINTENANCE COSTS
"Development
Operation and Maintenance
Costs" means all of the Landlord's costs, charges and expenses of operating,
maintaining, managing, repairing, rebuilding, replacing, restoring, inspecting,
insuring, securing, supervising, owning and administering the Development,
other
than the Building or any Other Building, including the Common Areas and the
Common Facilities and include, without limiting the generality of the
foregoing:
|
(a)
|
the
cost of lighting, heating, ventilating, air-conditioning and supplying
water and other utilities to the Common Areas and Common Facilities;
cleaning, janitorial services, snow and ice removal, striping,
sweeping,
cleaning and repairing parking areas; supervising, policing and
security;
painting, planting or landscaping; operating and maintaining the
garbage
compaction equipment, if any; the cost of maintaining, operating,
repairing, replacing or leasing the pylon signs and public address,
intercom, music and alarm systems; repairs, maintenance and replacements
to the Development, business taxes, place of business taxes and
other
taxes levied in respect thereof or fairly attributable to the Common
Areas
or the Common Facilities; insurance premiums for any insurance
required or
permitted to be carried by the Landlord pursuant to the terms of
this
Lease other than for the Building or any Other Building; supplies,
personnel wages, payroll expenses, the cost of service contracts
and
independent contractors, and
|
|
(b)
|
deleted;
|
and
there
shall be excluded from such costs the following:
|
(i)
|
payments
of principal and interest under any mortgage or mortgages on the
Development;
|
|
(ii)
|
income
taxes assessed upon the income of the Landlord;
and
|
|
(iii)
|
Building
Operating and Maintenance Costs;
|
and
there
shall be deducted from such costs the amount of proceeds actually recovered
by
the Landlord from insurance relating to damage, the cost of repair of which
was
included in Development Operation and Maintenance Costs.
.13
FORCE
MAJEURE
"Force
Majeure" means any cause beyond
the control of the Landlord delaying, hindering or preventing the Landlord
from
performing any term, covenant or act required hereunder and, without limiting
the generality of the foregoing, includes lockouts (including lockouts decreed
or recommended for its members by a recognized contractors' association of
which
the Landlord is a member or to which the Landlord is otherwise bound), strikes,
labour disputes, inability to procure materials or services, restrictive
governmental laws or regulations, fire, act of God, riots, insurrection,
sabotage, rebellion and war.
.14
GROSS
LEASABLE AREA
"Gross
Leasable Area" means the
aggregate floor area (expressed in square meters or square feet), from time
to
time, which may be leased, whether leased or not, calculated in the manner
set
out in the definition of Area of Leased Premises.
.15
HAZARDOUS
SUBSTANCE
"Hazardous
Substances" means any
substance which is dangerous or detrimental to persons or other living things
or
property and includes, without limitation, any contaminants, pollutants,
dangerous substances, liquid wastes, industrial wastes, toxic substances,
hazardous waste materials or substances defined in any legislation, regulation
or order relating to the environment, occupational safety, transportation
or
health including "polluting substances" which constitute "special waste"
as
those terms are defined in the Waste Management Act (British Columbia)
and regulations thereunder, "toxic substances" in Schedule 1 of the Canadian
Environmental Protection Act (Canada) or "deleterious substances" as
defined in the Fisheries Act (Canada) and regulations thereunder and any
other substances which are now or hereafter regulated as hazardous or toxic
substances or substances which are detrimental in legislation protecting
the
environment and human health.
.16
HVAC
COSTS
"HVAC
Costs" means all of the
Landlord's costs, charges and expenses of operating, maintaining, managing,
replacing, repairing and supervising the apparatus for heating, ventilating
and
air conditioning installed in the Building, from time to time, (the "HVAC
System") other than those parts of such apparatus installed by or on behalf
of
the Tenant or any other tenant. HVAC costs shall also include the
depreciation, at the rates determined by the Landlord, but not to exceed
the
maximum permitted to the Landlord from time to time under the provisions
of the
Income Tax Act (Canada), or any legislation substituted therefor, on al of
the
apparatus for heating, ventilating and air conditioning installed in the
Building, from time to time.
.17
LANDLORD'S
ARCHITECT OR SURVEYOR
"Landlord's
Architect" or "Landlord's
Surveyor" means an architect or engineer or surveyor from time to time selected
by the Landlord for the purpose of making any certificate or determination
in
accordance with the terms of this Lease.
.18
LANDLORD'S
WORK
"Landlord's
Work" means the work
specified in Schedule "B" hereto.
.19
LANDS
"Lands"
means those lands located in
the District of Richmond, in the Province of British Columbia legally described
as:
Lot
"3", Parcel Identifier No:
000-000-000
Xxxxxxx
00, Xxxxx 0 Xxxxx, Xxxxx 0
Xxxx,
Xxx
Xxxxxxxxxxx District, Plan LMP
5334.
.20
LEASE
"Lease"
means this agreement, including
any and all schedules attached hereto as the same may be amended from time
to
time.
.21
LEASE
YEAR
"Lease
Year" means each calendar year
in which a portion of the Term falls, provided that if it deems the same
convenient or necessary for its accounting purposes, the Landlord may, from
time
to time, by notice to the Tenant alter the Lease Year to any other twelve
(12)
month period in which a portion of the Term falls by specifying an annual
date,
being the first day of a calendar month, upon which a subsequent Lease Year
is
to commence and in such event the current Lease Year shall terminate on the
day
preceding the specified date.
.22
LEASED
PREMISES
"Leased
Premises" means that portion of
the Building outlined in red on Schedule "A2" hereto, subject to such minor
variations as may occur in the course of construction of the Building or
the
Leased Premises by the Landlord.
.23 LEASEHOLD
IMPROVEMENTS
"Leasehold
Improvements" means all
fixtures (other than the Tenant's trade fixtures), equipment and alterations
from time to time made to or installed in the Leased Premises, including,
without limitation, heating, ventilating and air-conditioning equipment,
hot
water tanks, interior doors, light fixtures, ceilings, wall to wall carpeting
or
similar affixed floor coverings, control equipment, non-structural walls,
and
air filtering devices.
.24
NET
RENTABLE AREA
"Net
Rentable Area" means the area,
expressed in square meters or square feet, measured from the exterior face
of
any exterior walls (without deduction for any indentations for recessed doors,
windows, loading bays or vestibules) to the centre line of any walls or
partitions separating the Leased Premises from any adjoining premises and
to the
finished surface of the office side of corridor walls or other permanent
partitions, without deduction for columns and projections necessary to the
Building.
.25
OTHER
BUILDINGS
"Other
Buildings" means any building or
buildings existing on the Lands or the Development Lands from time to time
containing premises that are leased or intended to be leased to tenants,
but
excluding the Building, as the Other Buildings may be altered, reconstructed
or
expanded from time to time, together with all improvements (including Leasehold
Improvements), equipment and facilities contained therein from time to
time.
.26
PERMITTED
USE
"Permitted
Use" means the use set forth
in Article 1.3.
.27
PRIME
RATE
"Prime
Rate" means the rate of interest
expressed as an annual rate, at the relevant time or times, determined by
the
Bank of Nova Scotia at its main branch in Vancouver, British Columbia, as
a
reference rate for commercial demand loans to its major commercial borrowers
determined in Canadian dollars and made by such bank in Canada and adjusted
from
time to time.
.28
REAL
PROPERTY TAXES
"Real
Property Taxes" means all
general, special, local improvement, school and other taxes, levies, rates
and
charges of every kind and nature whatsoever, whether ordinary or extraordinary,
foreseen or unforeseen, which are levied, assessed or imposed against the
Development or any part thereof and all business taxes, assessments, rates
and
levies, including without limitation, any corporation capital tax, levied,
assessed or imposed on the Landlord in respect of the ownership or management
of
the Development by municipal, provincial, federal or other governmental
authority having jurisdiction, whether of a nature now or hereafter levied,
assessed or imposed, together with the cost to the Landlord of contesting,
appealing or negotiating the same in good faith but excluding those taxes
and
fees of the Tenant or other tenants referred to in Article 11.1 hereof and
federal or provincial sales taxes.
.29
RELEASE
"Release"
includes releasing, spilling,
leaking, pumping, pouring, emitting, discharging, ejecting, escaping, leaching,
disposing or dumping.
.30
RENT
"Rent"
means all "Additional Rent" and all "Basic Rent".
.31
SERVICE
AREAS
"Service
Areas" means those portions of
the public and/or service areas of Building including without limitation
all
washrooms, air-conditioning rooms, equipment rooms, fan rooms, penthouses,
janitors' closets, electrical closets, lobbies, elevator lobbies, corridors,
refuge areas, stairs and loading bays measured to the exterior faces
of their enclosing walls and doors.
.32
TAX
COST
"Tax
Cost" means the cost of Real
Property Taxes.
.33
TENANT'S
PROPORTIONATE SHARE
"Tenant's
Proportionate Share"
means:
|
(a)
|
in
relation to each of the Building Operating and Maintenance Costs
and HVAC
Costs, the proportion that the Area of the Leased Premises is of
the Gross
Leasable Area of the Building; and
|
|
(b)
|
in
relation to Development Operation and Maintenance Costs and Tax
Cost, the
proportion that the Area of the Leased Premises is of the Gross
Leasable
Area of the Development.
|
.34 TENANT'S
WORK
"Tenant's
Work" has the meaning set out
in Article 4.1 hereof.
.35
TERM
"Term"
means the term of the Lease, as
set out in Article 1.4, including any renewal.
.36
YEAR
OF THE TERM
"Year
of the Term" means each
successive twelve (12) month period of the Term, the first of which commences
on
the Commencement Date.
40 ARTICLE
SALES TAX
.1
SALES
TAX
Notwithstanding
any other provisions of
this Lease, the Tenant shall pay to the Landlord an amount equal to any and
all
taxes imposed on the Landlord with respect to Basic 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 (except income taxes under the Income Tax Act [Canada]) (herein
called "Sales Tax"), it being the intention of the parties that the Landlord
shall be fully reimbursed by the Tenant with respect to any and all Sales
Tax. The amount of such Sales Taxes shall be calculated by the
Landlord on the basis that the Development is the only property owned by
the
Landlord and that the only credits, setoffs, exceptions, exemptions or
deductions available to the Landlord are those to which the Landlord is entitled
to by virtue of the purchase of goods and services for the Development (but
not
by virtue of the purchase of the Development itself), which shall be prorated
by
the Landlord over the Gross Leasable Area of the Development. The
amount of Sales Tax payable by the Tenant shall be calculated by the Landlord
and shall be paid to the Landlord at the same time as the amounts to which
the
Sales Taxes apply are payable to the Landlord under the terms of this Lease,
and
the Landlord may make any estimates necessary for the purpose of such
calculations in the same manner as provided in this Lease for payment of
Additional Rent. Notwithstanding any other provision in this Lease to
the contrary, the amounts payable by the Tenant under this clause shall be
deemed not to be Basic Rent or Additional Rent, but the Landlord shall have
all
of the same remedies for and rights of recovery of such amounts as it has
for
recovery of Rent under this Lease or at law.
42 ARTICLE
MISCELLANEOUS TERMS AND CONDITIONS
.1
OFFER
TO LEASE
Notwithstanding
anything contained in
the Offer to Lease made between the Landlord and the Tenant referred to in
Recital A of this Lease, in the event that there is any conflict of
inconsistency between the provisions of this Lease and the said Offer to
Lease,
the provisions of this Lease shall govern.
.2
INDEMNIFIER -
DELETED
.3
FINANCIAL
INFORMATION
The
Tenant and the Indemnifier shall,
from time to time, provide the Landlord with such financial or other similar
information, including information as to the Tenant's and the Indemnifier's
corporate and/or personal standing and organization, if applicable, as may
be
required by the Landlord or the Landlord's mortgagees.
.4 RELOCATION -
DELETED
|
22.5
|
RENEWAL
|
The
Landlord covenants and agrees with
the Tenant that if the Tenant duly and punctually pays the Rent and observes
and
performs the covenants, provisos and agreements contained in this Lease on
its
part to be paid, observed and performed, then the Tenant shall have the option,
to be exercised by giving to the Landlord written notice (herein called the
"Renewal Notice") not more than two hundred and seventy (270) days and not
less
than one hundred and eighty (180) days prior to the expiry date of the Term
(the
"Expiry Date"), to renew this Lease for a further term of five years (herein
called the "Renewal Term") on the terms and conditions of this Lease, except
for
this Article 22.4 and excluding any provisions for free rent, bonuses,
Leasehold Improvements, or inducements and except that the amount of the
Basic
Rent for the Leased Premises during the Renewal Term is to be the current
market
rent on that date being ninety (90) days prior to the Expiry Date which would
be
paid as between the Landlord and a willing tenant dealing at arm's length
for
improved premises in the Municipality of Richmond reasonably comparable to
the
Leased Premises; provided, however, the amount of the Basic Rent for the
Leased
Premises during the Renewal Term shall not be less than the amount of the
Basic
Rent for the Leased Premises payable during the last Lease Year of the
Term. The Landlord shall prepare and complete a renewal lease, and
the Tenant shall, within fifteen (15) days after receipt thereof, duly execute
and deliver to the Landlord the renewal lease as prepared and completed by
the
Landlord. In the event that the Landlord and the Tenant are unable to
agree on the amount of the Basic Rent payable during the Renewal Term within
ninety (90) days of the date on which the Landlord receives the Renewal Notice,
the determination of such Basic Rent shall be made by arbitration as set
out in
Article 22.6.
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22.5
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ARBITRATION
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If
under the provisions of this Lease
the Landlord and the Tenant have failed to agree as to the amount of the
Basic
Rent payable for the Leased Premises with respect to the Renewal Term by
the
date required hereunder, the determination of the Basic Rent shall be referred
to a single arbitrator to be agreed upon by the Landlord and the Tenant and
failing agreement as to such arbitrator within ten (10) days after either
party
shall have demanded the appointment of such arbitrator, then upon the
application of either the Landlord or the Tenant, the arbitrator shall be
appointed by a Judge of the Supreme Court of British Columbia. The
determination by the arbitrator shall be final and binding upon the Landlord
and
the Tenant and their respective successors and assigns. In making the
determination of the amount of the Basic Rent for the Renewal Term the
arbitrator shall follow the basis for determination set forth in Article
22.4
hereof. The fees and expenses of the arbitrator shall be borne by the
Tenant. The provisions of this paragraph shall be deemed to be a
submission to arbitration within the provisions of the Commercial Arbitration
Act, and any statutory modifications or re-enactment thereof, provided that
any limitations on the remuneration of the arbitrator imposed by such
legislation shall not be applicable. The arbitration shall be held in
the City of Vancouver, British Columbia, unless otherwise agreed in writing
by
the Landlord and the Tenant. It is understood and agreed by the
Landlord and the Tenant that until the amount of the Basic Rent for the Renewal
Term is determined by the arbitrator, the Tenant shall pay to the Landlord
monthly instalments on account of the Basic Rent equal to the monthly instalment
of Basic Rent payable for the month preceding the Renewal Term. Once
the arbitrator has determined the amount of the Basic Rent for the Renewal
Term
then the Basic Rent paid as aforesaid shall be adjusted to reflect the Basic
Rent as determined for the Renewal Term and the Tenant shall, forthwith upon
request by the Landlord, pay to the Landlord interest at the rate set forth
in
Article 3.5 of this Lease on the amount by which the monthly instalments of
the Basic Rent for the Renewal Term as finally determined exceed the monthly
instalments paid by the Tenant on account of the Basic Rent during the Renewal
Term, such interest to be computed and to accrue from the date of commencement
of the Renewal Term until the Landlord receives payment in full of the shortfall
in the Basic Rent.
IN
WITNESS WHEREOF the parties hereto
have executed this agreement by their respective duly authorized officers
in
that behalf, as of the day and year first above written.
ALPHA
EQUITIES LTD.
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_____________________________Per:
/s/ Xxx Xxxxxx
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Witness
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Authorized
Signatory
Xxx Xxxxxx
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_____________________________Per:
_____________________________
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Witness
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Authorized
Signatory
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_____________________________Per:
/s/ Xxxx Xxxxxxxxx
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Witness
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Authorized
Signatory Xxxx
Xxxxxxxxx
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_____________________________Per:
_____________________________
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Witness
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Authorized
Signatory
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INITIAL |
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/s/IM
IM
Landlord
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/s/
DW
DW
Tenant
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SCHEDULE
"A1"
Site
Plan (the "Building" shown in heavy outline)
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INITIAL |
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IM
Landlord
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DW
Tenant
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ST_new_lease_041707_2_Word6
SCHEDULE
"A2"
Sketch
plan of Leased Premises (shown in heavy outline)
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INITIAL |
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IM
Landlord
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DW
Tenant
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ST_new_lease_041707_2_Word6
SCHEDULE
"B"
LANDLORD'S
AND TENANT'S WORK
1 .0 Landlord's
Work
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.1
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The
Tenant agrees to accept the Leased Premises on an "as is"
basis.
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1.2
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Deleted
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1.3
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Deleted.
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2 .0 Tenant's
Work
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.1
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Fascia
Signs:
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The
Tenant shall within sixty (60) days of occupancy provide a fascia sign in
accordance with the Landlord's sign policy.
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.2
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Approval:
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The
Tenant acknowledges that any work undertaken by the Tenant shall be done
only
with the written approval of the Landlord. Work done without such
approval may, in the discretion of the Landlord, be removed from the Leased
Premises, or the Leased Premises be restored to the original condition, in
either case, at the expense of the Tenant.
If
the
Tenant undertakes to construct or otherwise install modular walls, racking
systems, mezzanines and/or warehouse office space of any kind, without
Landlord's approval, then Landlord may remove such installations at Tenant's
expense or, in its discretion, may determine that the installations constitute
additional square footage of the Leased Premises and subject this extra area
to
Basic Rent and Additional Rent according to Paragraphs 1.1, 1.2, 3.1 and
3.3 of
this Lease.
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.3
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Fixtures
& Equipment -
Deleted
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.4
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Additional
Work:
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Any
additional requirements of the Tenant over those specified in this Schedule
"B"
shall be the responsibility of the Tenant. Completion of such
additional requirements shall not delay the Tenant's acceptance of the Leased
Premises.
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.5
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Fire
Protection Equipment:
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Where
occupancy includes cooking or hazardous process areas, the Tenant shall install
a chemical or C02 automatic fire protection system approved by the appropriate
government body and notify the Landlord of any interruption to or flaw or
defect
in the system coming to the attention of the Tenant. The Tenant
further agrees to provide for regular inspection and maintenance of the
equipment as recommended by the manufacturer or authorized
representative.
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.6
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Additional
Work Performed by Landlord -
Deleted
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.7
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Additional
Costs:
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If,
as a
result of any work undertaken by or on behalf of the Tenant, including the
Tenant's Work, the Landlord's project manager determines in its discretion
that
the Landlord has incurred any additional costs or expense due to work required
to be undertaken by the Landlord or its contractors which deviates from the
Landlord's plan and specifications for the Landlord's Work or for the Landlord's
construction of other portions of the Development, then the Tenant will,
immediately upon invoicing, reimburse the Landlord (or at the Landlord's
option,
the Landlord's contractor) for such additional costs and expenses plus a
twenty
percent (20%) coordination fee.
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.8
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Roof:
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Tenant
and its agents, employees and representatives shall not at any time be permitted
on the roof.
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.9
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Examination
of Leased Premises -
Deleted
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3 .0 Approval
of Plans and Design Changes - Deleted
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INITIAL |
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/s/IM
IM
Landlord
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/s/
DW
DW
Tenant
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ST_new_lease_041707_2_Word6
SCHEDULE
"C"
RULES
AND REGULATIONS
1. The
Tenant shall in connection with its
advertising in relation to the business carried on in the Premises use and
promote the name of the Building or such other name as the Landlord may from
time to time designate and in using such name in any advertisement, sign,
poster, printing or other writing the Tenant will print, write or designate
the
same in a manner to be determined from time to time by the Landlord and in
no
other manner. The Tenant shall not use such name in regard to any
business other than its business upon the Premises. The Tenant agrees
that it will not carry on or permit to be carried on any business in the
Premises under a name or style other than its own name or call or permit
the
Premises or any business carried on therein to be called any name other than
its
own name, without the prior written consent of the Landlord.
2. The
Tenant shall not bring upon the
Premises any equipment, motor or other thing which might damage the
Building.
3. No
merchandise, supplies, materials,
garbage, refuse or other chattels shall be allowed to remain on any loading
dock
or in the Common Areas.
4. The
Tenant will not burn trash or
garbage in or about the Premises or Lands. The Tenant will keep the
Premises free of rubbish and debris, will provide sufficient receptacles
for
waste and, if applicable, will leave desks, counter tops and like furniture
clear for janitorial service. All garbage, refuse, cartons, packing
material and debris will be placed in the type of container and will be left
in
a place for collection, specified by the Landlord.
5. Plumbing
fixtures and facilities will
not be used for any purpose other than that for which they were constructed
and
no foreign substances of any kind will be thrown therein.
6. The
Tenant will use, at Tenant's cost,
such pest, rodent, bug and vermin exterminator as the Landlord may direct
and at
such intervals as the Landlord may require. The Tenant will notify
the Landlord immediately of any such pest, rodent or vermin
problem.
7. The
Tenant will not permit any
objectionable odours to be produced upon or emanate from the
Premises.
8. The
Tenant will not place additional locks or bolts on any doors or windows in
the
Premises and will not change existing locks or mechanisms thereof, without
the
prior written consent of the Landlord. At the end of the Term, the
Tenant will return to the Landlord all keys relating to the Premises and
if any
keys have been lost, the Tenant will pay to the Landlord the cost
thereof.
9. The
Tenant will not xxxx, paint, drill into or in any way deface the Premises
or the
building of which they form a part, without the prior written consent of
the
Landlord. The Tenant will not lay linoleum or similar floor covering
without an interlining of builder's deadening felt first being affixed to
the
floor by paste or other water soluble material.
10. The
Tenant will not conduct business in the Premises under a name or style other
than the name of the Tenant without the prior written consent of the Landlord,
such consent not to be unreasonably withheld.
11. The
Tenant will keep display windows well-lighted during each business
day.
12. All
entrance doors in the Premises will be left locked by the Tenant when the
Premises are not in use.
13. The
Tenant will not permit the installation or use in the Premises of any machine
dispensing goods for sale or permit delivery of any food or beverage to the
Premises or permit cooking in the Premises without the approval of the Landlord,
except vending machines used solely for the Tenant’s staff.
14 Any
hand trucks, carryalls or similar appliances used for delivery or receipt
of
merchandise or equipment will be equipped with rubber tires, side guards
and
such other safeguards as the Landlord requires.
15 The
Landlord will have the right to refuse admission to the Building outside
of
normal business hours to any person not producing an identification pass
authorized by the Landlord, and, may require all persons admitted to or leaving
the Building outside of normal business hours to register.
(a) 16. Canvassing,
soliciting and peddling in the Building is prohibited and the Tenant will
co_operate to prevent same.
17 The
Tenant, at the Landlord's request, will appoint Premises wardens who will
be
responsible for liaison with Building management in all emergency matters
and
who will be responsible for instructing employees of the Tenant in emergency
matters.
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INITIAL |
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/s/IM
IM
Landlord
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DW
Tenant
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ST_new_lease_041707_2_Word6
