EXHIBIT 10.17
THIS LEASE made the 20th day of November, 1996
BETWEEN:
LAIDAR HOLDINGS LTD. AND
XX. XXXXXX XXXXXXXXXX
c/o PCI Realty Corp.
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X. X.
X0X 0X0
(herein called the "Landlord")
OF THE FIRST PART
AND:
THE PLAYHOUSE THEATRE OF
BRITISH COLUMBIA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(herein called the "Tenant")
OF THE SECOND PART
This lease is made subject to the Landlord, on or before November 30, 1996,
obtaining from The Artek Group Inc. ("Artek") a partial Surrender of its Lease
with Artek for the space presently occupied by the Tenant (being approximately
26,424.25 square feet).
This subject to condition is for the sole benefit of the Landlord and can be
waived unilaterally by the Landlord.
Upon the Landlord removing this subject to condition by November 30, 1996, the
Lease between the Landlord and the Tenant shall be enforceable and binding on
the Landlord and the Tenant on the terms and conditions set out aforesaid.
In the event the Landlord shall fail to remove this subject to condition by
November 30, 1996, there shall be no Lease between the Landlord and the Tenant
and neither the Landlord nor the Tenant shall have any further obligations to
the other as provided herein.
ARTICLE 1-DEFINITIONS
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The Landlord and the Tenant hereby agree that in this Lease the
following words or phrases shall, unless there is something in the context
inconsistent therewith, have the meanings hereinafter set out:
1.1 "Additional Rent" shall mean the Management Fee, the Utility Costs,
the Sales Taxes, the Tenant's Taxes, the Tenant's Proportionate Share of the
Operating Expenses including the Taxes, and all other sums which may be payable
to the Landlord hereunder or reimbursable to the Landlord hereunder, including,
without limitation, all interest and penalties payable hereunder, whether or not
such sums are referred to as Rent or Additional Rent or otherwise, but
Additional Rent shall not include the Annual Basic Rent:
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1.2 "Annual Basic Rent" shall mean the amount specified as such in
the Lease Summary as may be amended by Schedule"C" hereto or amended by written
agreement of the landlord and the Tenant from time to time;
1.3 "Areas of the Premises" shall mean approximately 26,646.25
square feet, which area shall be measured in accordance with the BOMA Standard
of Measurement such measurements to be made by a British Columbia Land Surveyor
chosen by the Landlord;
1.3A "Architect" shall mean the person qualified to practice, and
practicing as such under the laws of British Columbia and named by the Landlord
from time to time:
1.4 "Building" shall mean all buildings and improvements erected to
be erected on the Land:
1.4A "Capital Tax" shall mean the amount of tax imposed under the
Corporation Capital Tax Act:
1.5 "Commencement Date" shall mean the date specified as such in the
Lease Summary:
1.6 "Common Areas and Facilities" shall mean all of the Land and the
Building including, without limitation, the Roof, exterior and interior walls
and structural elements including bearing walls, electrical, plumbing, drainage,
mechanical and other installations or services as well as the structures housing
the same, fire prevention and communication systems, loading areas, parking
areas, driveways, landscaped areas, retaining walls, washrooms (other than
washrooms within the Premises or within other premises leased to tenants), and
all fixtures, general signs, lighting facilities, improvements, equipment and
installations thereupon or therein which the Landlord provides or designates
from time to time for the general use by or for the benefit of the Tenant in
common with other tenants and other persons permitted by the landlord; provided
however, the Common Areas and Facilities shall exclude all of the Rentable Area,
whether or not leased to tenants, and it shall further exclude all areas of the
Land in respect of which the Landlord has granted to the Tenant or any other
tenant an exclusive easement or an easement in common only with the Landlord:
1.7 "Expiry Date" shall mean the date specified as such in the Lease
Summary:
1.8 "Insurance Costs" shall mean all premiums and other amounts
which the Landlord may expend in effecting or maintaining insurance coverage
under the provisions of this Lease:
1.9 "Land" shall mean all and singular that certain parcel or tract
of land in the Province of British Columbia more particularly described in
Schedule "A" hereto having a civic address of: 000-000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx.
1.10 "Landlord" shall mean only the owner or the mortgagee in
possession for the time being of the Premises as represented from time to time
by is agents PCI Realty Corp.:
1.11 "Landlord's Mortgages" shall mean any and all existing or
proposed mortgagees, debenture holders and trustees on behalf of mortgagees
holding any Mortgages:
1.12 "Lease" shall mean this Indenture together with the Lease
Summary and all schedules attached hereto:
1.13 "Lease Summary" shall mean page 2 attached to and forming part
of this Lease and headed "Lease Summary":
1.14 "Lease Year" shall mean a twelve (12) month period commencing on
the first day of January in any calendar year and ending on the last day of
December in that calendar year, provided that the first Lease Year shall
commence on the Commencement Date and end on the last day of December next
following and the last Lease year shall commence on the first day of January of
the calendar year during which the Term expires and end upon the Expiry Date:
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1.14A "Management Fee" shall mean fees to be charged at the rate specified
in the Landlord's management agreement for the Lands from time to time plus
G.S.T. of the aggregate of all income from the Lands including:
a) Basic Rent;
b) Operating Expenses;
c) Property Taxes;
d) G.S.T.;
e) all Rental Income, and
f) all other expenses of any nature and kind incurred in connection with
the operation and management of the Lands
and the Tenant shall pay its proportionate share of the Management Fee.
1.15 "Mortgages" shall mean all mortgages, debentures, deeds of trust and
mortgages securing bonds and all instruments and indentures supplemental thereto
which may now or hereafter charge the Premises, and all modifications,
consolidations, replacements and extensions thereof;
1.16 "Operating Expenses" shall mean all expenses in connection with the
operation, maintenance and repair (which repair shall include replacement and
renewal where necessary) of all or any portion of the Land, the Building and the
Premises except as otherwise specifically provided in this Lease and, without
restricting the generality of the foregoing, shall include:
(a) the Taxes;
(b) the Insurance Costs;
(c) all charges for water, gas, electricity and any other utilities and
services used on or in respect of any part of the Land and the Building and all
fittings, machines, apparatus, meters and any other thing leased in respect
thereof, and, for greater certainty, including charges for electricity for any
Signs not separately metered to the Premises and all work and services performed
by any corporation, authority or commission in connection with such utilities,
but excluding Utility Costs;
and in respect of the Land and the Building only;
(d) salaries and wages (including employee benefits and workers'
compensation assessments), and all independent service contracts and supplies
incurred in cleaning, maintenance, garbage collection and disposal, operation,
management, security, landscape repair and maintenance, snow removal and traffic
control;
(e) repairs and maintenance of all or any portion of the Land and the
Building and, for greater certainty, including the Roof and the Common Areas and
Facilities;
(f) costs of supplies and equipment used in connection with the repair,
maintenance, management and operation of the Building and Lands including
without limitation straight line amortization of capitalized equipment;
(g) consultants' fees as required from time to time and the costs and
fees incurred in the preparation of any audit of Operating Expenses, and
incurred by the Landlord for legal proceedings taken in order to protect or
preserve the general well-being of the tenants of the Building or their use and
enjoyment of the Building or to enforce covenants in any leases as they affect
the general well-being of the tenants of the Building;
(h) capital improvements required pursuant to any governmental law or
regulation which were not required at the time of construction of the Building,
capital improvements which in the opinion of the Landlord will reduce projected
Operating Expenses, and all other capital improvements deemed necessary by the
Landlord for periodic repair
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or replacement, all amortized over the useful life of the improvements as
determined by the Landlord in accordance with generally accepted accounting
principles, plus the cost of purchasing any extended warranties:
(i) an amount equal to the difference between the proceeds of insurance
payable to the Landlord in respect of the damage or destruction of the Building
and the costs and expenses to repair, rebuild and make fit the Building to the
extent of any deductible contained in any insurance policy effected by the
Landlord pursuant to its covenant to insure herein contained:
(j) depreciation in an amount determined by the Landlord's accountants
in accordance with generally accepted accounting principles on:
(i) the original capital cost of the chattels, equipment,
systems and facilities of the Project, including, without limiting the
generality of the foregoing, the heating, ventilating and air-conditioning and
Utility systems: and
(ii) the capital cost of repairs, replacements and improvements
mentioned in subsections (c) through (e) which the Landlord's accountants have
determined to be capital in nature (other than any which are necessitated by a
change in any law, by-law, regulation, code or order enacted, made or enforced
by any authority having jurisdiction and which the Landlord has, in its sole
discretion, elected to treat as a current expense and which will be charged in
the same manner as under subsections (c) through (e);
but Operating Expenses shall not include interest on the Landlord's debt or
capital retirement of the Landlord's debt:
1.17 "Premises" shall mean the portion of the Building shown outlined in
heavy dark line and identified as "Premises" on the plan attached hereto as
Schedule "B", with any exclusions as indicated on Schedule "B" and excepting
the exterior faces of all adjoining corridor and outside walls and excepting the
Roof;
1.18 "Relative Portion" shall mean, with respect to any amount payable
under this Lease, that fraction which has as its denominator the period of time
expressed in days in respect of which an amount payable hereunder is calculated
and which has as its numerator the number of days within the same calculation
period, but which fall within the Term;
1.19 "Rent" shall mean the Annual Basic Rent and the Additional Rent;
1.20 "Rentable Area" shall mean the total area expressed in square feet
or its metric equivalent of space set aside by the Landlord for leasing to
tenants of the Building, and as may be amended by the Landlord from time to
time;
1.21 "Roof" shall mean the roof membrane, roof insulation and roof deck
of the Building;
1.22 "Sales Taxes" shall mean any and all taxes, fees, levies, charges,
assessments, rates, duties and excises (whether characterized as sales taxes,
purchase taxes, value-added taxes, goods and services taxes or any other form)
which are imposed on the Landlord or which the Landlord is liable to pay, and
which are levied, rated or assessed on the act of entering into this Lease or
otherwise on account of this Lease, on the use or the occupancy of the Premises
or any portion thereof, on the Rent payable under this Lease or any portion
thereof or in connection with the business of renting the Premises or any
portion thereof. Provided that if the Sales Taxes are reduced by reason of any
exemption or deduction to which the Landlord is entitled by virtue of:
(a) the payment of any taxes, fees, levies, charges, assessments,
rates, duties or excises upon the purchase price of any lands or of any interest
therein whether before, concurrently with or after the execution and delivery of
this Lease: or
(b) the payment of any taxes, fees, levies, charges, assessments, rates,
duties or excises with respect to rents, additional rents and any other amounts
payable by the Landlord as a tenant under any lease whether such lease is now
existing or arises after the date of execution and delivery of this Lease.
then the Sales Taxes shall be deemed to be the amount which would have been
imposed on the Landlord with respect to the Rent payable by the Tenant to the
Landlord under this Lease had no such exemption or deduction been permitted.
The Landlord shall have the right, in its sole discretion, to allocate any
exemption or deduction to which the Landlord is entitled; (i) in such a way as
to reduce the Sales Taxes to the extent and in such proportion as the Landlord
may in its sole discretion determine, or (ii) in such a way as not to reduce the
Sales Taxes at all. Provided however, Sales Taxes shall exclude all of the
following: (i) income tax under Part 1 of the Income Tax Act of Canada as it
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existed January 1, 1990. (ii) the Tenant's Taxes, and (iii) the Taxes:
1.23 "Security Deposit" - intentionally deleted.
1.24 "Sign" shall mean any sign, picture, notice, lettering, direction or
other advertising or informational device of whatever nature.
1.25 "Taxes" shall mean all taxes, fees, levies, charges, assessments,
rates, duties and excises which are now or may hereafter be levied, imposed,
rated or assessed upon or with respect to the Land or the Building or any part
thereof, whether levied, imposed, rated or assessed by the Government of Canada,
the Government of British Columbia, or any political subdivision, political
corporation, district, municipality, city or other political or public entity,
and whether or not now customary or in the contemplation of the parties on the
date of this Lease. Without restricting the generality of the foregoing. Taxes
shall include all:
(a) real property taxes, general and special assessments and Capital
Taxes;
(b) taxes, fees, levies, charges, assessments, rates, duties and excises
for transit, housing, schools, police, fire or other governmental services or
for purported benefits to the Land or the Building;
(c) local improvement taxes, service payments in lieu of taxes, and
taxes, fees, levies, charges, assessments, rates, duties and excises, however
described, that may be levied, rated or assessed as a substitute for, or as an
addition to, in whole or in part, any property taxes or local improvement taxes;
and
(d) costs and expenses, including legal and other professional fees and
interest and penalties on deferred payments, incurred by the Landlord in
assessing and/or contesting or appealing any taxes, assessments, rates, levies,
duties, excises, charges or other amounts as aforesaid;
but Taxes shall exclude all of the following: (i) income tax under Part 1 of
the Income Tax Act of Canada, (ii) the Tenant's Taxes, and (iii) the Sales
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Taxes;
1.26 "Tenant's Proportionate Share" shall mean the percentage which is
equivalent to a fraction having as its numerator the Areas of the Premises
expressed in square feet or the metric equivalent thereof and having as its
denominator the Rentable Area expressed in the same form of measurement as the
numerator, provided that the percentage shall be changed in the event of a
change to the Rentable Area or the Areas of the Premises;
1.27 "Tenant's Taxes" shall mean all taxes, fees, levies, charges,
assessments, rates, duties and excises which are now or may hereafter be levied,
imposed, rated or assessed by any lawful authority relating to or in respect of
the business of the Tenant or relating to or in respect of personal property and
all business and trade fixtures, machinery and equipment, cabinet work,
furniture and movable partitions owned or installed by the Tenant at the expense
of the Tenant or being the property of the Tenant, or relating to or in respect
to of improvements to the Premises built, made or installed by the Tenant, on
behalf of the Tenant or at the Tenant's request whether any such amounts are
payable by law by the Tenant or by the Landlord and whether such amounts are
included by the taxing authority in the Taxes;
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1.28 "Term"shall mean the term specified in the Lease Summary:
1.29 "Transfer" shall mean any transfer, assignment, charge,
mortgage, sublease, licence, sharing of possession, parting with possession or
any other disposition of this Lease or any estate or interest herein or the
premises or any part thereof:
1.30 "Transferee" shall mean any person to whom a Transfer is made or
intended to be made: and
1.31 "Utility Costs" shall mean all charges for water, gas,
telephone, electric light and power and all other utilities and services used on
or in respect of the Premises or any part thereof, whether separately metered to
the Premises or as allocated by the Landlord, acting reasonably, to the
Premises, together with all costs and charges for all fittings, machines,
apparatus, meters and any other thing leased or supplied in respect thereof and
all costs and charges for all work and services performed by any corporation,
authority or commission in connection with such utilities and services in
respect of the Premises, whether separately charged to the Premises or allocated
by the Landlord, acting reasonably, to the Premises.
ARTICLE 2-THE DEMISE
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2.1 The Demise
WITNESSETH that in consideration of the rents, covenants,
conditions and agreements hereinafter respectively reserved and contained on the
part of the Tenant to be paid, observed and performed the landlord hereby
demises and leases to the Tenant the Premises and the Tenant does hereby take
and rent, upon and subject to the terms, conditions and provisos herein
expressed.
2.2 Acceptance of Premises
The Tenant accepts the Premises on an "as is" basis.
ARTICLE 3-TERM
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3.1 Term
To have and to hold the Premises unto the Tenant for the Term
from and including the Commencement Date until and including the Expiry Date.
3.2 Delayed Possession
Intentionally deleted.
ARTICLE 4-RENT
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4.1 Annual basic Rent and Additional Rent
Yielding and paying therefor during the Term the following Rent
payable at the Landlord's address specified in the Lease Summary or at such
other place as the Landllord may from time to time designate in writing, in the
following instalments.
(a) the Annual Basic Rent as set forth in the Lease Summary payable
in advance in equal consecutive monthly instalments on the first day of each and
every month in the Term commencing on the Commencement Date and continuing until
and including the first day of the month in which the Expiry Date falls: and
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(b) the Additional Rent payable in accordance with the provisions of
this Lease.
4.2 No Abatement
The Tenant covenants and agrees with the Landlord that all of the
rent payable under this Lease shall be paid by the Tenant to the Landlord
without demand, deduction, set-off or abatement whatsoever, except as
specifically provided in subparagraph 9.4(a).
Post-Dated Cheques or Pre-Authorized Withdrawal
4.3 The Tenant covenants and agrees that if more than twice in any
Lease Year the Tenant is late in paying any monthly instalment of Annual Basic
Rent, then the Tenant shall forthwith upon request by the Landlord deliver to
the Landlord a series of post-dated cheques payable at par each in the amount of
the monthly instalment of the Annual Basic Rent, and the Tenant shall continue
to do so upon each yearly anniversary thereafter during the Term. In the
alternative, at the Tenant's option, the Tenant shall duty execute and deliver
the Landlord's standard Pre-Authorized withdrawal form directed to a Canadian
chartered bank or other financial institution acceptable to the Landlord and
requiring such bank or other financial institution to deduct from the Tenant's
account and to pay to the Landlord each month during the Term an amount equal to
the monthly instalment of the Annual Basic Rent. The Tenant shall forthwith upon
request by the Landlord execute and deliver to the Landlord such authorizations
and documents as may be required by the Landlord from time to time in order to
enable the Landlord to obtain all such payments. If required by the Landlord,
such post-dated cheques or Pre-Authorized withdrawals shall also include a
monthly amount estimated by the landlord from time to time in respect of the
whole or any portion of the Additional Rent that the Landlord may require. The
failure of the Tenant to comply in any way with the provisions of this paragraph
4.3 shall be deemed to be a default under this Lease and shall entitle the
Landlord to exercise any and all remedies available to the Landlord under this
Lease.
4.4 Adjustment
If the Term shall commence or cease on a day other than the
commencement of or the end of any period of time in respect of which any amount
payable hereunder is calculated, then the Tenant shall pay to the Landlord its
Relative Portion of such amount for such period of time.
4.5 Security Deposit
Intentionally deleted.
ARTICLE 5 - TENANTS COVENANTS
-----------------------------
The Tenant hereby covenants and agrees with the Landlord as follows:
5.1 To Pay
The Tenant shall pay the Annual Basic Rent when due in accordance
with the provisions of this Lease and shall pay the Additional Rent not later
than thirty (30) days after request by the Landlord. The Tenant shall also
promptly pay the Tenant's Taxes and the Utility Costs as they become due and
shall provide to the Landlord, when and if requested by the Landlord, the
receipt for each payment made by the Tenant in respect of the Tenant's Taxes and
the Utility Costs.
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5.2 Estimated Expenses
(a) The Tenant covenants and agrees that the Landlord shall have the
right to make reasonable estimates of the amount of any or all of the Operating
Expenses for each calendar year during the Term.
(b) The Tenant covenants and agrees to pay to the Landlord, if the
Landlord so requests, in equal monthly instalments on the first day of each
month during each Lease Year the Additional Rent or any portion thereof as
estimated by the Landlord for the calendar year which falls in whole or in part
within the respective Lease Year. In the event that the Tenant makes any
overpayment to the Landlord on account of any Additional Rent payable under this
paragraph 5.2 during any calendar year the Tenant shall be entitled to a credit
in respect of the payment of such item of Additional Rent for the next
succeeding calendar year. Upon the expiry of the Term and the fulfillment by the
Tenant of all of its obligations under this Lease any remaining credit shall be
refunded to the Tenant.
(c) The Tenant covenants and agrees that a certificate of an officer of
the Landlord as to the actual Additional Rent or any portion thereof for any
calendar year shall be final and binding upon the Tenant and the Landlord.
(d) In the event that the Term does not subsist during the whole of any
calendar year then the Tenant shall pay the Relative Portion of the Tenant's
Proportionate Share of the estimated and actual Operating Expenses for such
calendar year.
5.3 Insurance
(a) The Tenant shall, at its sole cost and expense during the Term and
during such other period of time that the Tenant occupies the Premises, take out
and maintain in full force and effect, the following:
(i) "all risks" insurance upon all merchandise, stock-in-trade,
furniture, fixtures, equipment, leasehold improvements and other property of
every kind and description located at the Premises, owned by the Tenant or for
which the Tenant is responsible or legally liable, in an amount at least equal
to the full insurable value thereof, calculated on a replacement cost basis;
(ii) automobile liability insurance to a limit of liability of not
less than Two Million Dollars ($2,000.000.00) in any one accident, covering all
licensed motor vehicles owned by the Tenant and used in connection with its
business carried on form the Premises;
(iii) comprehensive bodily injury and property damage liability
insurance applying to the operations of the Tenant carried on from the Lands and
the Premises and which shall include, without limitation, personal injury
liability, product liability, contractual liability, non-owned automobile
liability and protective liability with respect to the use and occupancy of the
Premises by the Tenant; and such insurance shall be written for an amount of not
less than Two Million Dollars ($2,000,000.00) per occurrence, or such higher
amount as the Landlord may from time to time reasonably require;
(iv)) tenant's all risks legal liability insurance in an amount not
less than the replacement cost of the Premises; and
(v) any other form or forms of insurance as the Landlord may
reasonably require from time to time in amounts and for perils against which a
prudent tenant acting reasonably would protect itself in similar circumstances.
(b) All policies of insurance referred to in this paragraph 5.3 shall
include the following provisions:
(i) the policies shall not be affected or invalidated by any act,
omission or negligence of any person which is not within the knowledge or
control of the insured thereunder;
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(ii) all property damage policies written on behalf of the Tenant
shall contain a waiver of any subrogation rights which the Tenant's insurer(s)
may have against the Landlord and against those for whom the Landlord is, in
law, responsible, whether any insured loss or damage is caused by the act,
omission or negligence of the Landlord or by those for whose acts the Landlord
is, in law, responsible or otherwise:
(iii) all policies of liability insurance shall include the
Landlord and any persons, firms or corporations designated by the Landlord, as
additional named insureds and shall provide that each person, firm or
corporation insured under such policies shall be insured in the same manner and
to the same extent as if separate policies had been issued to each; and
(iv) all policies shall contain an undertaking by the insurers to
give the Landlord not less than thirty (30) days prior written notice of any
cancellation or other termination thereof, or any change which restricts or
reduces the coverage afforded thereby.
(c) The Tenant agrees that certificates of insurance or, if required
by the Landlord or any of the Landlord's Mortgagees, certified copies of each
policy, will be delivered to the Landlord as soon as practicable after the
placing thereof. The Tenant shall, when required by the Landlord, forthwith
provide to the Landlord evidence that all premiums for all insurance policies
have been paid.
(d) For good and valuable consideration, the Tenant does hereby
release and relieve the Landlord and those persons for whom the Landlord is, in
law, responsible, from liability and responsibility for, and waives its entire
claim for recovery of any loss or damage whatsoever arising out of or incident
to the occurrence of any of the perils covered by, or which would be covered by,
the insurance policies which the Tenant is obligated to obtain and maintain in
force under the terms of this Lease, except to the extent that any such loss or
damage is caused by the negligence of the Landlord or those persons for whom the
Landlord is, in law, responsible.
(e) The Tenant shall not do or permit anything to be done upon the
Land, the Building or the Premises whereby and policy of insurance against loss
or damage to the Land, the Building or the Premises or against legal liability
for damage to persons or property caused by the ownership, maintenance, use or
occupancy of the Land, the Building or the Premises, or by reason of the conduct
of any business carried on thereon, may be invalidated, and, for such purpose,
upon receipt of notice in writing from any insurer of the Land, the Building or
the Premises requiring the execution of works or a discontinuance of any
operations in order to correct such situation, the Tenant shall comply
therewith.
(f) The Tenant agrees that if the Tenant fails to take out or keep in
force any insurance coverage referred to in this paragraph 5.3, or if any such
insurance is not approved by the Landlord and the Landlord's Mortgagees, and the
Tenant does not rectify the situation within three (3) business days after
written notice by the Landlord to the Tenant setting forth the Landlord's
objections, then the Landlord shall have the right, without assuming any
obligation in connection therewith, to effect such insurance coverage and shall
have the right to recover all costs and premiums incurred in effecting such
insurance coverage from the Tenant pursuant to paragraph 9.5 hereof.
5.4 Repair
The Tenant shall, at all times during the Term and at its own
expense promptly repair, decorate, clean, renew and maintain the Premises in a
high quality state of repair including, without limiting the foregoing, the
interior walls and the floor of the Premises, and all other fixtures, machinery,
facilities, equipment and appurtenances comprising the Premises or any part
thereof, even though any such work may be that resulting from wear and tear.
The Tenant shall also heat the Premises in a reasonable manner so as to prevent
any damage thereto by reason of frost or moisture and not to limit the
generality of the foregoing, the Tenant shall be responsible for the repair and
replacement of all heating equipment in the Premises. Without limiting the
generality of the foregoing, the Tenant shall repaint all internal work of the
Premises which the Landlord may from time to time require to be repainted, such
repainting to be done by the Tenant during every fifth year of the Term and also
as directed by the Landlord during the: (i) the last year of the Term, or (ii)
the thirty (30) day period immediately following the termination or surrender of
this Lease. All repainting shall be in
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accordance with reasonable specifications approved by the Landlord and shall be
completed to the reasonable satisfaction of the Landlord.
5.5 Repair on Notice
The Tenant shall permit the Landlord and its duly authorized agents
or nominees, with or without workers and others, at all reasonable times to
enter upon the Premises for the purpose of examining the state of repair,
condition and use thereof, and to permit such entry after the Landlord shall
have given twenty-four(24) hours' notice in writing to the Tenant of such
intended entry and examination and in every case the Tenant shall afford the
Landlord all aid and facilities in such entry and examination and upon notice in
writing of defect or want of repair being given by the Landlord to the Tenant,
to cause the same to be repaired, as required by paragraph 5.4 and 5.28 hereof,
within thirty (30) days from the date of the giving of such notice by the
Landlord. If the Tenant shall at any time default in the performance or
observance of any of the covenants in this Lease for or relating to the repair,
maintenance, cleaning, renewal or decoration of the Premises or any part thereof
and such default shall continue for thirty (30) days after notice in writing
from the Landlord of default in respect of repair, maintenance, cleaning,
renewal or decoration of the Premises then the Tenant shall permit the Landlord
and its duly authorized agents and nominees, with or without workers and others,
and without prejudice to the Landlord's right of re-entry, to enter into and
upon the Premises and repair, decorate, clean, renew and maintain the same at
the expense of the Tenant and the Tenant shall afford the Landlord all aid and
facilities in doing or causing the same to be done, and shall repay to the
Landlord on demand all costs and expenses in respect of such repairs,
maintenance, cleaning, renewal and decoration as aforesaid.
5.6 Business and Trade Fixtures
The Tenant may install its usual business and trade fixtures in the
usual manner in the Premises, provided such installation does not damage the
Premises or the Building and provided further that, if requested by the
Landlord, the Tenant shall have submitted to the Landlord plans and
specifications for such business and trade fixtures and obtained the prior
written consent of the Landlord thereto, which consent shall not be unreasonably
withheld. All business and trade fixtures owned or installed by the Tenant in or
on the Premises shall remain the property of the Tenant and shall be removed by
the Tenant at the Tenant's sole cost and expense upon the expiration of the Term
or the sooner termination thereof, provided that the Tenant at its expense shall
repair any damage to the Premises, the Building and the Land caused by such
removal. Such removal by the Tenant shall be permitted provided that the Tenant
is not in default under any covenant or agreement contained herein at the time
of such removal, and if in default, the Landlord shall have a lien on the
Tenant's business and trade fixtures as security against loss or damage
resulting from any such default by the Tenant and the Tenant's business and
trade fixtures shall not be removed by the Tenant until such default is cured,
unless otherwise directed by the Landlord. The Landlord may elect to require the
Tenant to remove all or any part of the business and trade fixtures owned or
installed by or on behalf of the Tenant upon the expiration or termination of
the Term, in which event such removal shall be done at the Tenant's expense and
the Tenant shall, at its expense, repair any damage to the Premises, the
Building and the Land cause by such removal. If the Tenant does not remove its
business and trade fixtures forthwith after written demand by the Landlord, such
property shall, if the Landlord elects, be deemed to become the Landlord's
property or the Landlord may remove the same at the expense of the Tenant and
the cost of such removal shall be paid by the Tenant forthwith to the Landlord
on written demand, and the Landlord shall not be responsible for any loss or
damage to such property as a result of such removal.
5.7 Alterations and Additions
The Tenant shall not remove, alter or change the position or style
of, or add to, the Premises or any part thereof without in any and every such
case having first submitted plans and specifications thereof to the Landlord and
having obtained the prior written consent of the Landlord thereto, and unless
otherwise provided by such consent, all such alterations, additions or
erections shall be done either by or under the direction of the Landlord, as the
Landlord may determine, but at the cost of the Tenant. All work shall be done
promptly and in a good and workmanlike manner by contractors or tradespeople
approved in writing by the Landlord. The Tenant shall pay to and reimburse the
Landlord forthwith on demand for all costs and expenses incurred by the Landlord
in the review and approval of any plans and
specifications by the Landlord's architects and engineers. The Tenant shall
obtain and pay for all required building and occupancy permits in respect of its
work as aforesaid. The Tenant shall, at its own cost and expense, take out or
cause to be taken out any additional insurance coverage reasonably required by
the Landlord to protect the respective interests of the Landlord and the Tenant
during all periods when any such work is being performed and shall comply with
all orders, rules and regulations of the Insurers' Advisory Organization of
Canada or any other body hereafter constituted exercising similar functions.
Any and all installations, alterations, additions, partitions, improvements or
fixtures other than the Tenant's business and trade fixtures in or upon the
Premises, whether placed there by the Tenant or the Landlord or a previous
occupant of the Premises, shall, immediately upon such placement, become and
shall thereafter remain the property of the Landlord without compensation
therefor to the Tenant. Notwithstanding anything herein contained, the Landlord
shall be under no obligation to repair, maintain, replace or insure such
installations, alterations, additions, partitions and fixtures or anything in
the nature of a leasehold improvement made or installed by or on behalf of the
Tenant. The Landlord may elect that any or all installations, alterations,
additions, partitions, improvements or fixtures made or installed by or on
behalf of the Tenant hereunder, or under the provisions of any previous
occupation by the Tenant, be removed at the expiry or earlier termination of the
Term and it shall be the Tenant's obligation to restore the Premises to the
condition in which they were prior to such alterations, installations,
additions, improvements, partitioning and fixtures. Such removal and
restoration shall be at the sole expense of the Tenant.
5.8 Use of Premises
The Tenant shall not use the Premises nor allow the Premises to be
used for any purpose other than that specified in the Lease Summary, nor in any
manner inconsistent with such use and occupation, and the Tenant shall not, at
any time during the Term, commit or suffer to be committed any waste upon the
Premises nor shall the Tenant use, exercise or carry on, or permit or suffer to
be used, exercised or carried on, in or upon the Premises or the Land, or any
part thereof, any noxious, noisome or offensive trade, business, occupation or
calling, or keep, sell, use, handle or dispose of any merchandise, goods or
things which are objectionable, or by which the Premises, the Land or the
Building or any part thereof may be damaged or injuriously affected, and no act,
matter or thing whatsoever shall, at any time during the Term, be done in or
upon the Premises or the Land, or any part thereof, which may result in
annoyance, nuisance, grievance, damage or disturbance to other tenants or
occupiers of the Building or to the occupiers or owners of any other lands or
premises or to the holders of any registered easement, right of way or other
encumbrance charging the whole or part of the Land or the Building. The Tenant
shall use its best endeavors to prevent anything being done on the Premises or
the Land which may result in any building or lands (other than the Premises)
being picketed or otherwise subjected to industrial action or demonstrations,
political or otherwise. In the event of such picketing, industrial action or
demonstrations the Tenant shall forthwith take all action and proceedings
reasonably necessary to cause such picketing, industrial action and
demonstrations to cease without delay. The Tenant shall not place in the
Premises any heavy machinery or equipment without first obtaining the consent in
writing of the Landlord. The Tenant shall immediately advise the Landlord of
the presence of and shall do all things necessary to remove any dangerous
condition from time to time existing on the Premises, the Building or the Land
and arising as a result of the act or omission of the Tenant or any person for
whom the Tenant is, at law, responsible.
5.9 Rubbish
The Tenant shall keep the Premises clean and tidy and in good
order and in particular shall not form or permit to be formed any refuse dump,
rubbish heap or scrap heap upon the Premises or the Common Areas and Facilities
and the Tenant shall remove, not less frequently than once a month, all refuse,
rubbish, scrap and other waste matter which may have accumulated on the Premises
or the Common Areas and Facilities.
5.10 Pollution
The Tenant shall not discharge nor permit the discharge of any oil
or grease or any deleterious, objectionable, dangerous, radioactive, poisonous
or explosive matter or substance into any waters, ditches, water courses,
culverts, drains or sewers nor in or under the Premises, the Building or the
Land, including without limitation any radioactivity or microwaves. The Tenant
shall take all reasonable measures for ensuring that any discharged effluent
shall
not be corrosive, poisonous or otherwise harmful to or cause obstruction,
deposit or pollution within any waters, ditches, water courses, culverts, drains
or sewers, nor to or within any sewage disposal works nor to the bacteriological
process of sewage purification. The Tenant shall forthwith at the Landlord's
request provide facilities for testing and monitoring the effluent from the
Tenant's operations and shall permit the Landlord and its agents reasonable
access to the Premises for the purposes of carrying out such testing and
monitoring from time to time at the Landlord's expense. The Tenant shall
construct, maintain and operate every furnace and burner used on the Premises so
as to substantially consume or burn the smoke arising therefrom and shall not
use or suffer any such furnace or burner to be used negligently so that the
smoke arising therefrom is not substantially consumed or burned. The Tenant
shall not cause or permit any grit, dust, noxious or offensive effluvia to be
emitted from any engine, furnace, burner or apparatus on the Premises without
using the best practicable means reasonably available for preventing or
counteracting such emissions.
5.11 Xxxxx Nuisance
Upon written notice to the Tenant from the Landlord or from any
lawful authority having jurisdiction requiring the abatement of any nuisance
caused by vibration, noise or offensive smell or by any undue emission of smoke,
vapour or dust caused by the Tenant or arising directly or indirectly out of the
operations carried on upon the Premises the Tenant shall forthwith xxxxx such
nuisance accordingly.
5.12 Obstruction of Roads
The Tenant shall not permit any vehicles owned or operated by or
under the control of the Tenant to cause an obstruction on any parking areas or
roadways on the Lands and the Tenant shall use its best endeavors to ensure that
all persons doing business with the Tenant and their servants and workers shall
not permit any vehicles to cause such obstruction as aforesaid. The Tenant
shall also use its best endeavors to ensure that vehicles owned or operated by
or under the control of the Tenant, its employees or persons doing business with
the Tenant shall observe all regulations and instructions made or given by the
Landlord with regard to the parking of vehicles on areas provided for the
parking of vehicles on the Lands.
5.13 No Auctions
The Tenant shall not permit any sale by auction nor any fire
sale, bankruptcy sale, moving sale, going-out-of-business sale or bulk sale to
be held upon the Premises or the Land or any part thereof.
5.14 Terminate Agreements
Except where required to do so by the terms of this Lease, the
Tenant shall not enter into, amend or terminate any agreement with any public
utility corporation relating to or in any manner whatsoever affecting the
Premises or the Land unless the Landlord grants his consent, which consent shall
not be unreasonably withheld.
5.15 Assignment and Subletting
(a) The Tenant shall not make, grant, execute, enter into, consent
to or permit any Transfer without the prior written consent of the Landlord,
such consent may be reasonably withheld. In the event that the Tenant desires to
make, grant, execute, enter into, consent to or permit any Transfer then the
Tenant shall give prior written notice to the Landlord of such desire,
specifying therein the proposed Transferee and providing to the Landlord such
information on the nature of the business of the proposed Transferee together
with its financial responsibility and standing as the Landlord may reasonably
require, together with the terms and conditions of the proposed Transfer. the
Tenant shall also deliver to the Landlord a copy of the Transfer intended to be
executed by the Tenant and the Transferee, together with the Landlord's
administration fee required hereunder. The Landlord shall, within thirty (30)
days thereafter, notify the Tenant in writing that it consents to such Transfer
or that it does not consent to such Transfer, in which event the Landlord must
advise the Tenant of its reason for not consenting.
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(b) Provided always and notwithstanding subparagraph 5.15(a) hereof no
Transfer shall:
(i) in any manner release the Tenant from its obligations for the
payment of the Rent and the observance and performance of the covenants, terms
and conditions herein provided; nor
(ii) be made to any person carrying on any business which the Landlord
is obliged to restrict by reason of any other lease or contract relating to any
other premises in the building.
(c) Upon the initial request for a Transfer by the Tenant together with
receipt from the Tenant of the administration fee and undertaking required in
subparagraph 5.15(d) hereof, and provided that the Landlord does not withhold
its consent to such Transfer, the Landlord shall provide to the Tenant its
standard form written agreement as aforesaid. The Tenant shall require each
Transferee, at the time of any Transfer, to execute and deliver the Landlord's
standard form written agreement between the Tenant, the Landlord and the
Transferee wherein the Transferee agrees to observe and perform all of the
covenants, agreements, provisos, terms and conditions of this Lease and wherein
the Tenant acknowledges and agrees that it shall continue to be liable under
this Lease. If either the Tenant or the Transferee fails to execute and deliver
the said standard form written agreement then the Landlord shall have the right
to refuse to grant its consent to such Transfer, or where such consent is not
required the Transfer shall not be effective until the said standard form
written agreement is executed and delivered by the Tenant and the Transferee.
Without in any way restricting the generality of the Landlord's right to refuse
consent to any Transfer, the Landlord shall have the right to refuse to consent
to any Transfer if the Lease is not in good standing.
(d) The Tenant shall, together with its initial request to the Landlord
for consent to any Transfer, pay to the Landlord an administration fee of Three
Hundred Dollars ($300.00) or such other greater fee as the Landlord may
reasonably charge from time to time, and the Tenant shall also undertake to
reimburse to the Landlord any solicitors' fees and any other costs, charges and
expenses which may be incurred by the Landlord in connection with the Tenant's
request for consent to any Transfer.
(e) If the Tenant is a corporation or a partnership, or if the
Transferee is a corporation or a partnership, and at any time during the Term
any or all of the corporate shares or voting rights of shareholders or partners,
as the case may be, of the Tenant or the Transferee shall be transferred by
sale, assignment, bequest, inheritance, trust, operation of law or other
disposition, or treasury shares be issued, so as to result in a change in the
control of the Tenant or the Transferee by reason of ownership of greater than
fifty (50%) percent of the voting shares of the Tenant or the Transferee having
changed from one person or group of persons to another person or group of
persons, without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld, then and so often as such a change of control
shall occur the Landlord shall have the right to terminate this Lease at any
time after such change of control by giving the Tenant sixty (60) days' prior
written notice of such termination. The Tenant shall, upon request by the
Landlord, make available to the Landlord from time to time for inspection and
copying all books and records of the Tenant which, alone or with other data,
show the applicability or otherwise of this subparagraph 5.15(e). This
subparagraph shall not be applicable to any transfer of shares which are listed
on a security exchange regulated by governmental authority.
5.16 Easements
The Tenant shall not, without the prior written consent of the
Landlord, permit any encroachment, right of way, easement or other encumbrance
to be made or acquired into, against or upon the Premises or the Land or any
part thereof.
5.17 Liens
The Tenant shall permit the Landlord to post, and the Tenant shall
keep posted in at least two (2) conspicuous places on the Premises and the
Lands, any notices which the Landlord may desire to post under the provisions of
the Builders' Lien Act of British Columbia and any statute which may amend or
------------------
replace such statute. The Tenant shall use its best endeavors to ensure that no
claim of lien shall be filed in respect of any work which may be carried out by
it
or on its behalf in the Building or on the Land and, if a claim of lien shall be
filed in respect of any such work, the Tenant shall take all necessary steps to
have the claim of lien cancelled and discharged from the Land and the Building
within fifteen (15) days of the date the Tenant has knowledge of such filing and
the Tenant shall indemnify and save harmless the Landlord from any and all loss,
cost, expense, damage and liability in respect of such claim of lien. The
Landlord, in addition to any right or remedy, shall have the right, but shall
not be obliged, to discharge any claim of lien from the Land and the Building by
paying the amount claimed to be due or by procuring a discharge of such liens
by deposit in the appropriate court and in any such event the Landlord shall be
entitled, if it so elects, to expedite the prosecution of any action for the
enforcement of such claim of lien by the lien claimant and to pay the amount of
the judgment, if any, in favour of the lien claimant with interest and costs. In
any such event the Tenant shall forthwith pay to and reimburse the Landlord for
all money expended by the Landlord and all costs and expenses incurred by the
Landlord.
5.18 Registered Charges
The Tenant shall pay all money owed by it under any conditional sale
agreement or other charge registered or filed against the Land or the Building,
and immediately upon all of the payments having been made thereunder, the Tenant
shall obtain a memorandum of satisfaction or other appropriate document of
discharge and shall register the same at its own expense in the proper land
title office or other appropriate office of public record as the Landlord may
require to discharge the same from the title to the Land and the Building.
5.19 Entry for Benefit of Adjoining Premises
The Tenant shall permit the Landlord, its agents, workers and other
persons authorized by the Landlord and the tenants of any adjoining or
neighbouring premises and their respective agents and workers, to enter upon the
Premises at all reasonable times so far as may be necessary or useful in order
to construct, examine, repair or rebuild any adjoining or neighbouring premises
or for any other reasonable purpose, provided that the Landlord shall make good
all damage occasioned by the exercise of such rights by the Landlord, its
agents, workers and any other persons authorized by the Landlord. Insofar as any
tenant of any adjoining or neighbouring premises and its respective agents and
workers are concerned, no such rights shall be exercisable until such tenant and
its agents and workers shall have covenanted with the Tenant to make good all
damage occasioned by the exercise of such rights by that tenant and its
respective agents and workers. A representative of the Tenant shall be entitled
to accompany any person entering upon the Premises pursuant to this paragraph
5.19.
5.20 Exhibit Premises
The Landlord shall have the right to exhibit the Premises to:
(a) prospective tenants or subtenants during the six (6) month period
prior to the Expiry Date;
(b) the Landlord's Mortgagees and prospective mortgagees and any
prospective purchaser of the whole or any part of the Landlord's interest in the
Premises;
and for such purposes the Landlord shall have the right to post such "For Rent"
or "For Sale" sign as in its discretion it may decide on the Premises and the
Lands and further shall have the right of entry to the Premises at any
reasonable time and the Tenant at its option may have a servant or agent present
at the time of such entry.
5.21 Registration of Lease
The Landlord shall have no obligation to execute and deliver this
Lease in registrable form. The Tenant shall not apply to register this Lease.
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5.22 Compliance with Laws
The Tenant shall do, observe and perform all of its obligations
and all matters and things necessary of expedient to be done, observed or
performed by the Tenant by virtue of any law, statute, by-law, ordinance,
regulation or lawful requirements of any governmental authority or any public
utility lawfully acting under statutory authority and all demands and notices in
pursuance thereof whether given to the Tenant or the Landlord and in any manner
or degree affecting the exercise or fulfillment of any right or obligation
arising under or as a result of this Lease and affecting the Premises and the
use thereof by the Tenant. If any such demand or notice is given lawfully
requiring the execution of works by reason of anything done, omitted or
permitted by the Tenant, then:
(a) if such notice is given to the Tenant, the Tenant shall forthwith
deliver the same or a true copy thereof to the Landlord and the Tenant shall
forthwith, at its own expense, execute to the satisfaction of the Landlord and
the person giving such notice all such works as the Landlord may approve in
writing in order to comply with the requirements of the said notice; or
(b) if such notice is given to the Landlord, the Landlord shall notify
the Tenant and thereupon the Tenant shall, at its own expense, forthwith execute
to the satisfaction of the Landlord and the person giving such notice all such
works as the Landlord and the person giving such notice may require in order to
comply with the requirements of the said notice.
Notwithstanding the foregoing, the Landlord shall have the right to execute
any such works and the Tenant shall afford to the Landlord all necessary access
to the Premises and other facilities for that purpose and the Tenant shall, on
demand by the Landlord, pay to the Landlord all costs and expenses incurred by
the Landlord in executing and performing any and all such works.
5.23 Provide Financial Information
Whenever any of the Landlord's Mortgagees, in connection with any
financing of the Land or the Building or any part thereof, shall require
information relating to the financial position of the Tenant, then the Tenant,
within thirty (30) days after receipt by it of a notice in writing from the
Landlord requesting such information, shall furnish directly to such Landlord's
Mortgagee copies of the unaudited financial statements of the Tenant, including
balance sheet and statements of profit and loss and surplus or deficit, in
respect of each of the three (3) years immediately preceding the year in which
such notice is given. All such information shall be used by such Landlord's
Mortgagees in connection with such financing only and shall be supplied to such
Landlord's Mortgagees on the condition that the information be treated on a
confidential basis.
5.24 Subordination
This Lease is and shall be subject, subordinate and postponed to
all Mortgages to the intent that, without execution of any document other than
this Lease, the Mortgages shall have priority over this Lease notwithstanding
the respective dates of execution, delivery or registration thereof. Without
limiting the generality of the foregoing, the Tenant agrees to promptly execute
any document in confirmation of such subordination, postponement and priority
which the Landlord may request. Provided however, the subordination and
postponement of this Lease to any of the Mortgages shall not be effective with
respect to a specific Mortgage unless and until the Landlord's Mortgagee holding
such Mortgage shall confirm in writing to the Tenant that the Tenant shall have
the right, if not in default under this Lease, to remain in possession of the
Premises in accordance with the terms of this Lease in the event such
Landlord's Mortgagee obtains title to the Premises by way of foreclosure or
otherwise.
5.25 Attornment
Whenever required by any of the Landlord's Mortgagees under any of
the Mortgages, or in the event of an exercise by any of the Landlord's
Mortgagees of the power of sale in any of the Mortgages, the Tenant shall attorn
to and become, in each case, a tenant of such Landlord's Mortgagee or any
purchaser from such Landlord's Mortgagee for the then unexpired residue of the
Term upon all of the terms and conditions hereof.
5.26 Estoppel Certificate
The Tenant shall at any time and from time to time upon ten (10)
days' prior notice from the Landlord execute and deliver to the Landlord, or the
Landlord's Mortgagees, or a prospective purchaser of the whole or any portion of
the Landlord's interest in the Land or the Building, a statement in writing
confirming the terms of this Lease, certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the modifications and that
the same is in full force and effect as modified), certifying the amount of the
Rent then being paid hereunder, the dates to which the Rent and other charges
hereunder have been paid, that the Landlord has complied with all the terms of
this Lease, that the Premises are acceptable to the Tenant, that the Tenant
shall not amend, modify or surrender this Lease or make any prepayment of the
Rent other than the Rent for the current month without the prior written consent
of the Landlord's Mortgagees or prospective purchaser, that there are not
outstanding set-offs or equities disclosed or undisclosed as between the
Landlord and the Tenant, that no money other than a maximum of one month's Rent
in accordance with the provisions of the Lease has been prepaid by the Tenant to
the Landlord, that the Tenant is aware of the assignment by the Landlord to the
Landlord's Mortgagees of all Rents under this Lease, and any other matters
pertaining to this Lease in respect of which the Landlord may desire
certification.
5.27 Indemnify Landlord
The Tenant shall indemnify and save harmless the Landlord from and
against any and all manner of actions or causes of action, damages, costs, loss
or expenses of whatever kind which the Landlord may sustain, incur or be put to
by reason of or arising out of any act or omission of the Tenant or any persons
for whom the Tenant is, at law, responsible, from the use or occupation of the
Land, the Building and the Premises in whole or in part and, without limiting
the generality of the foregoing, from the non-observance or non-performance by
the Tenant, or any persons for whom the Tenant is, at law, responsible, of any
of the obligations imposed under the provisions of any laws, ordinances,
regulations or requirements of any federal, provincial, municipal or other
authority, or any of the covenants, agreements, terms, conditions and provisos
contained in this Lease to be observed and performed by the Tenant and such
liability to indemnify and save harmless shall survive any termination of this
Lease, anything in this Lease to the contrary notwithstanding.
5.28 Peaceable Surrender
At the end or sooner termination of the Term the Tenant shall yield
up to the Landlord, without notice from the Landlord, the Premises including all
fixtures, repaired, decorated, paved, cleaned, renewed and maintained in the
condition required under paragraph 5.4 and as otherwise provided under this
Lease. At the end or sooner termination of the Term the Tenant shall, without
notice from the Landlord remove from the Premises all buildings, machinery,
erections, materials and things thereon not belonging to the Landlord and
restore the Premises to the satisfaction of the Landlord. If the Tenant shall
not so remove such buildings, machinery, erections, materials and things, the
same shall without prejudice to the Landlord's right to enforce such removal as
hereinbefore provided, become the sole property of the Landlord without any
right of the Tenant to have compensation therefor.
ARTICLE 6 - LANDLORD'S COVENANTS
--------------------------------
The Landlord covenants with the Tenant as follows:
6.1 Quiet Enjoyment
For quiet enjoyment, subject to the charges, exceptions and
reservations and to any rights of entry by the Landlord as provided in this
Lease.
6.2 Landlord's Repairs
To keep in a good and substantial state of repair as would a prudent
owner of a reasonably similar commercial development, having regard to size, age
and location, at the Landlord's cost and expense, the structure of the Building
including, without limitation, the foundations, exterior wall assemblies,
including weather walls, sub-floor, roof (only insofar as replacement of more
than 75% of the total area of the roof is necessary), bearing walls, and
structural columns and beams of the Building. The Landlord's covenant herein
will not extend to any repairs which may become necessary as a result of any act
or omission on the part of the Tenant and those for whom the Tenant is in law
responsible.
6.3 Landlord's Insurance
(a) The Landlord shall, during the Term and any renewal thereof, take out
and maintain in full force and effect insurance against all risks of physical
loss or damage to the Building, and such fixtures and improvements as the
Landlord shall determine, including the perils of flood and earthquake and
including business interruption or loss of rental income insurance, in amounts
equal to the full insurable value thereof, calculated on a replacement cost
basis, and subject to such deductibles as the Landlord may reasonably determine.
Provided however, the full insurable value shall not include, and the insurance
shall not cover, any property of the Tenant, whether owned by the Tenant or held
by it in any capacity, nor leasehold improvements whether made by or on behalf
of the Tenant. The Landlord shall, upon thirty (30) days' written notice from
the Tenant, advise the Tenant of the amount of the deductible referred to in
this subparagraph 6.3 (a).
(b) The Landlord shall, upon written request by the Tenant, provide the
Tenant with evidence from time to time that such insurance has been effected.
(c) The Landlord may, but shall not be obligated to, take out and carry any
other form or forms of insurance as the Landlord or the Landlord's Mortgagees
may consider advisable or beneficial, including, without limiting the foregoing
comprehensive liability insurance and boiler and machinery insurance.
(d) Notwithstanding any contribution by the Tenant to any Insurance Costs as
provided for herein, no insurable interest shall be conferred upon the Tenant
under policies carried by the Landlord.
(e) The Landlord hereby agrees to release and relieve the Tenant and those
persons for whom the Tenant is in law responsible, from liability and
responsibility for, and waives its claim for recovery of any loss or damage
arising out of or incident to the occurrence of any of the perils covered by the
insurance policies which the Landlord is obligated to obtain and maintain in
force under subparagraph 6.3(a), except to the extent that any such loss or
damage is caused by the negligence of the Tenant or by those persons for whom
the Tenant is, in law, responsible, provided however that this release and
waiver shall be limited to the respective amounts which the Landlord is entitled
to recover under such insurance policies.
6.4 Disposition by Landlord
If at any time during the Term and Renewal Term hereof the Building or
the Landlord's interest therein or in this Lease shall be assigned, mortgaged or
sold to any third party the Landlord shall, within FOURTEEN (14) days following
the execution and delivery by the Landlord of any assignment or documents of
mortgage or sale, deliver to the Tenant a notice in writing of the making of
such assignment, mortgage or sale and the effective date thereof and shall
obtain an agreement from the assignee, mortgagee or purchaser, as the case may
be acknowledging and confirming the Rent, and Term and the other covenants,
obligations and conditions of this Lease.
ARTICLE 7 - ASSIGNMENT BY LANDLORD
----------------------------------
If the Landlord sells or otherwise transfers an interest in the Building
and Lands or in this Lease, to the extent that the purchaser or assignee thereof
is responsible for compliance with the covenants and obligations of the
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Landlord hereunder, the Landlord without further written agreement will be
relieved of liability under its covenants and obligations.
ARTICLE 8 - COMMON AREAS AND FACILITIES
---------------------------------------
(a) The use and occupation of the Premises by the Tenant shall include the
non-exclusive licence to use, in common with others entitled thereto, the Common
Areas and Facilities, subject to the provisions of this Lease and to the
exclusive control, management and direction of the Landlord. The Landlord hereby
grants to the Tenant a nonexclusive licence, during the Term, in common with all
others entitled thereto, to pass and xxxxxx with or without vehicles over those
areas of the Land as the Landlord may from time to time designate in writing and
to use, for the parking of motor vehicles, those parking spaces on the Land as
the Landlord may from time to time designate in writing for the use of the
Tenant. Notwithstanding the foregoing grant of licence by the Landlord to the
Tenant, the Landlord shall have the right to alter the location and size of the
areas which are the subject of the said licence, provided that reasonable access
to the Premises is provided to the Tenant.
(b) The Common Areas and Facilities will at all times be subject to the
exclusive control and management of the Landlord and will be provided or
designated by the Landlord from time to time for the general use by or for the
benefit of the Tenant and its employees, invitees and licensees in common with
the other tenants of the Landlord and such others as may be designated by the
Landlord. The Landlord has the right acting reasonably from time to time to
establish, modify and enforce rules and regulations with respect to the Common
Areas and Facilities including those related to their use, maintenance and
operation and the rules and regulations in all respects will be observed and
performed by the Tenant and the employees, invitees and licensees of the Tenant.
The Landlord has the right to change the area, level, location and arrangement
of the Common Areas and Facilities and to enter into, modify and terminate
easements and agreements pertaining to the use and maintenance thereof, and to
police the Common Areas and Facilities and to close all or any portion thereof
to such extent as may in the reasonable opinion of the Landlord be legally
sufficient to prevent a dedication thereof or the accrual or creation of rights
to any person or the public therein, and to do and perform such other acts and
things in and to the Common Areas and Facilities as the Landlord, acting
reasonably, considers advisable.
(c) The Tenant covenants that it will and will cause its employees,
licensees and invitees to observe all regulations made by the Landlord from time
to time with respect to parking on those portions of the Land provided for that
purpose and that the Tenant shall supply automobile licence numbers of its
employees to the Landlord upon request. In particular, the Landlord reserves the
right to remove any automobile infringing regulations made by the Landlord with
respect to parking from time to time, such removal to be at the risk and expense
of the Tenant.
(d) Notwithstanding anything contained herein to the contrary, in the event
that the landlord elects to construct new buildings or builds additional storage
on the Lands then the Landlord shall not unreasonably interfere with the
Tenant's use and enjoyment of the Premises. It is understood and agreed that
notwithstanding anything herein to the contrary, the Landlord shall have the
right at all times and from time to time, throughout the Term to:
(i) change the area, size or arrangement of the Building and the
Land and any part thereof including the Common Areas and Facilities:
(ii) construct other buildings, structures or improvements on the
Land and make alterations thereof, additions thereto, or re-arrangements
thereof, demolish parts thereof, build additional storeys on the Building (and
for such purposes to construct and erect columns and support facilities in the
Building), and construct additional buildings or facilities adjoining or
proximate to the Building.
(iii) relocate or rearrange or make changes or additions to the Common
Areas and Facilities from those existing at the Commencement Date in order to
facilitate expansion or alteration of the Building:
(iv) add additional lands to the Land: and
22
(v) temporarily obstruct or close off the Common Areas and Facilities or
any parts therefor for the purposes of maintenance, repair or construction:
provided however that the Landlord shall not unreasonably interfere with the use
and enjoyment of the Premises beyond the extent necessarily incidental to such
changes, additions and installations, and shall make good any physical damage to
the Premises arising in the course of such changes, additions and installations.
The Landlord agrees to use its reasonable efforts to complete all construction,
alterations, maintenance and repairs as expeditiously as possible under the
circumstances. Notwithstanding anything herein contained to the contrary, the
Landlord shall make reasonable efforts not to unduly disrupt the Tenant in its
business operations including providing to the Tenant reasonable notice of the
proposed Landlord work.
(e) The Tenant shall not have any right to object to nor any right to any
claim of damages, compensation or other sums whatsoever, nor any right of set-
off or reduction of the Rent as a result of or on account of any exercise of the
Landlord's rights under Article 8 of this Lease. It is further understood and
agreed that the exercise by the Landlord of its rights set forth in Article 8 of
this Lease shall not be deemed to be constructive or actual eviction of the
tenant, nor a breach of any covenant of quiet enjoyment or other covenant
contained in this Lease.
ARTICLE 9 - MUTUAL COVENANTS, AGREEMENTS AND PROVISOS
-----------------------------------------------------
AND IT IS HEREBY AGREED BY THE LANDLORD AND THE TENANT AS FOLLOWS:
9.1 No Warranties
The Tenant and the Landlord acknowledge and agree that no representations,
warranties, agreements or conditions have been made other than those expressed
herein, and that no agreement collateral hereto shall he binding upon the
Landlord or the Tenant unless it be made in writing and duly executed on behalf
of the Landlord or the Tenant.
9.2 No Waiver
(a) The failure of the Landlord to exercise any right or option in
connection with any breach or violation of any term, covenant or condition
herein contained shall not be deemed to be a waiver or relinquishment of such
term, covenant, or condition nor of any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
the Rent or any portion hereunder by the Landlord shall not be deemed to be a
waiver of a preceding breach by the Tenant of any term, covenant or condition of
this Lease.
(b) The acceptance of any of the Rent from, or the performance of any
obligation hereunder by, a person other than the Tenant shall not be construed
as an admission by the Landlord of any right, title or interest of such person
as a Transferee or otherwise in the place and stead of the Tenant.
(c) The acceptance by the Landlord of a part payment of any money required
to be paid hereunder shall not constitute a waiver or release of the right of
the Landlord to payment in full of such money.
9.3 Notices
All notices, demands and requests which may or are required to be given
pursuant to this Lease shall be in writing and shall be sufficiently given if
delivered personally to the party or an officer of the party for whom it is
intended, or mailed prepaid and registered to the respective addresses specified
in the Lease Summary, or such other addresses as the parties may from time to
time advise by notice in writing. The Tenant shall require each Transferee to
supply its respective mailing address to the Landlord. The date of receipt of
any such notice, demand or requests shall be deemed to be the date of delivery
of such notice, demand or request if delivered, or if mailed as aforesaid it
shall be deemed to be on the third day next following the date of such mailing
(excluding Saturdays, Sundays and statutory holidays in British Columbia),
unless there is between the date of mailing and actual receipt a mail strike or
other labour
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dispute which adversely affects mail service in British Columbia, in which case
the party giving the notice, demand or request shall deliver such notice, demand
or request by an alternative method, and the time of giving such notice, demand
or request shall be the time of actual receipt of such notice, demand or
request.
9.4 Damage and Destruction
(a) If the Premises are damaged by fire or other casualty which renders all
of the Premises or a substantial area of the Premises unusable by the Tenant and
materially adversely affects the business carried on by the Tenant on the
Premises, then the Annual Basic Rent shall xxxxx in the same proportion as such
unusable area of the Premises bears to the total Areas of the Premises, and such
abatement shall continue until such unusable area of the Premises is capable of
use by the Tenant.
(b) Except as provided in subparagraph 9.4(c) hereof, if the Premises are
damaged by fire or other casualty insured against by the Landlord hereunder then
the damage to the Premises shall be repaired by the Landlord at its expense,
provided that the Tenant shall, at the expense of the Tenant, repair all
installations, alterations, additions, partitions, improvements and fixtures
made by or on behalf of the Tenant or, at the option of the Landlord, such
repairs shall be performed by the Landlord at the expense of the Tenant if the
Landlord considers that this would be more efficient and cost-effective. All
repairs which the Landlord is required to make hereunder shall be made with due
diligence, provided that the Landlord shall not be liable to the Tenant for any
loss or damage suffered by the Tenant as a result of any delay which may arise
by reason of adjustment of insurance on the part of the Landlord or on account
of strikes, lockouts or other industrial disturbances, explosion, breakage or
accident to machinery, inability to obtain labour, materials or equipment,
inability to obtain approvals from any municipality, government authority or
public or private regulated utility, government restriction or judicial action,
act of God, or any other matter beyond the reasonable control of the Landlord.
(c) If, in the Landlord's opinion, acting reasonably, the Building in which
the Premises are located is damaged by fire or other casualty to the extent that
it cannot reasonably be repaired or rebuilt within one hundred fifty (150) days
after the occurrence of such damage and if the Landlord shall consequently
decide not to restore the same then the Landlord shall, within ninety (90) days
after the happening of such fire or other casualty, give to the Tenant a notice
in writing of such decision and thereupon the Term of this Lease shall expire
forthwith and the Tenant shall vacate the Premises and surrender the Premises to
the Landlord and all rights of the Tenant hereunder shall cease and determine.
If the Building in which the Premises are located is damaged as aforesaid and
the Landlord does not give notice as aforesaid, then the Landlord shall
diligently proceed to repair or rebuild the Building in accordance with
paragraph 9.4(b). If such repair or rebuilding is not completed and available
for occupation by the Tenant within two hundred eighty (280) days from the time
of the fire or other casualty causing the damage (subject to such time period
being extended by the length of any reasonable delay which may arise by reason
of adjustment of insurance on the part of the Landlord or on account of strikes,
lockouts or other industrial disturbances, explosion, breakage or accident to
machinery, inability to obtain labour, materials or equipment, inability to
obtain approvals from any municipality, government authority or public or
private regulated utility, government restriction or judicial action, act of
God, or any other matter beyond the reasonable control of the Landlord), the
Tenant may at its option, to be exercised within ten (10) days of the
termination of the said period of two hundred eighty (280) days (or The
termination of such later period as extended hereby) by notice in writing,
terminate this Lease and all of the rights of the Tenant hereunder, and the
Tenant shall then have no further liability for Rent in respect of any period
after the date of termination.
9.5 Payments by Landlord Regarded as Rent
If the Tenant shall fail to observe or perform any of the covenants or
obligations of the Tenant under or in respect of this Lease the Landlord may
from time to time at its discretion perform or cause to be performed any of such
covenants or obligations or any part thereof and for such purpose may do such
things as may be requisite and may, after giving five (5) days notice to the
Tenant, enter upon the Premises to do such things and all costs and expenses
incurred and expenditures made by or on behalf of the Landlord shall be
forthwith paid by the Tenant to the Landlord and if the Tenant fails to pay the
same the Landlord may add the same to the Rent and recover the same by all
remedies
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available to the Landlord for the recovery of Rent in arrears, provided that if
the Landlord commences or completes either the performance or the causing to be
performed of any of such covenants or obligations or any part thereof, the
Landlord shall not he obliged to complete such performance or causing to be
performed or be later obliged to act in like fashion. If the Landlord shall
suffer or incur any damage, loss, cost or expense whatsoever for which the
Tenant is in anyway liable hereunder, by reason of any failure of the Tenant to
observe or comply with any of the covenants or agreements of the Tenant herein
contained, then in every such case the amount of any such damage, loss, cost or
expense shall be due and payable by the Tenant to the Landlord on demand by the
Landlord and the Landlord shall have the right at its option to add the cost or
amount of any such damage, loss, cost or expense to the Rent hereby reserved and
any such amount shall thereupon immediately be due and payable as Rent and
recoverable by the Landlord by all remedies available to the Landlord for the
recovery of Rent in arrears.
9.6 Re-entry on Default
The Tenant further covenants with the Landlord that in the event of the
breach, non-observance or nonperformance of any covenant, agreement,
stipulation, proviso, condition, rule or regulation herein contained on the part
of the Tenant to be kept, performed or observed hereunder and any such breach,
non-observance or non-performance shall continue for five (5) days after written
notice thereof to the Tenant by the Landlord, or notwithstanding the foregoing,
if any payments of the Rent or any part thereof, whether the same are demanded
or not, are not paid when they become due, or in case the Term shall be taken in
execution or attachment for any cause whatsoever, or if the Premises remain
vacant for more than five (5) days, then and in any such case the Landlord, in
addition to any other remedy now or hereafter provided, may re-enter and take
possession immediately of the Premises or any part thereof in the name of the
whole by reasonable force if necessary without any previous notice of intention
to reenter and may remove all persons and property therefrom and may use such
reasonable force and assistance in making such removal as the Landlord may deem
advisable to recover at once full and exclusive possession of the Premises and
such re-entry shall not operate as a waiver or satisfaction in whole or in part
of any right, claim or demand arising out of or connected with any breach,
nonobservance or non-performance of any covenant or agreement on the part of the
Tenant to be kept, observed or performed.
9.7 Seizure
If the Term or any of the goods and chattels of the Tenant shall at any
time during the Term be seized or taken in attachment by any creditor of the
Tenant or if a writ of execution, sequestration or extent shall issue against
the goods and chattels of the Tenant, or if any petition or other application is
granted by any court of competent jurisdiction for the dissolution, liquidation
or winding up of the Tenant or for the appointment of a receiver or receiver and
manager, or if the Tenant shall become bankrupt or insolvent or take the benefit
of any statute now or hereafter in force for bankrupt or insolvent debtors, or
if the Premises shall be used for any purpose other than permitted by paragraph
5.8 hereof without the prior written consent of the Landlord, or if The Tenant
shall make an assignment for the benefit of creditors or shall make any sale or
other disposition of all or substantially all of its goods and chattels (except
incidental to any reorganization of the Tenant, if any, or incidental to its
amalgamation with any other company), then and in every case the Tenant shall be
and be deemed to be in default under this Lease: the then current and the next
ensuing three (3) months' Annual Basic Rent and Additional Rent (to be
determined for the current year at rates estimated by the Landlord acting
reasonably) and any additional money owing hereunder shall immediately become
due and payable; the Landlord may re-enter and take possession of the Premises
or any part thereof in the name of the whole, and have again, repossess and
enjoy the Premises in its former estate, anything herein to the contrary
notwithstanding, as though the Tenant were holding over after the expiration of
the Term: and the Term shall, at the option of the Landlord, forthwith become
forfeited and determined and the then current and the next ensuing three (3)
months' Annual Basic Rent, the Additional Rent (to be determined for the current
year at rates estimated by the Landlord acting reasonably) and any additional
money owing hereunder shall be recoverable by the Landlord as if it were Rent in
arrears, but the Tenant shall remain liable under this Lease.
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9.8 Sale and Reletting
The Tenant further covenants and agrees that upon the Landlord becoming
entitled to re-enter upon the Premises under any of the provisions of this Lease
the Landlord, in addition to all other rights and remedies, shall have the right
to enter the Premises as the agent of the Tenant either by reasonable force or
otherwise, without being liable for any prosecution therefor and to relet the
Premises as the agent of the Tenant, and to receive all rent therefor, and as
agent of the Tenant to take possession of any business and trade fixtures of the
Tenant and any goods and property whatsoever on the Premises and to sell the
same at public or private sale without notice and to apply the proceeds of such
sale and any rent derived from reletting the Premises in payment of the Rent due
under this Lease, after deducting its costs of conducting such sale and its
costs of reletting, and the Tenant shall be liable to the Landlord for any
deficiency.
9.9 Termination
The Tenant further covenants and agrees that upon the Landlord becoming
entitled to re-enter upon the Premises under any of the provisions of this Lease
the Landlord, in addition to all other rights and remedies, shall have the right
to forthwith terminate this Lease and the Term and all of the rights of the
Tenant hereunder by giving notice in writing addressed to the Tenant of its
intention so to do, and any other payments for which the Tenant is liable under
this Lease shall be paid and the Tenant shall forthwith deliver up possession of
the Premises to the Landlord and the Landlord may re-enter and take possession
of the Premises.
9.10 Distress
Whensoever the Landlord shall be entitled to levy distress against the
goods and chattels of the Tenant it may use such reasonable force as it may deem
necessary for the purpose and for gaining admission to the Premises without
being liable for any action in respect thereof or for any loss or damage
occasioned thereby and the Tenant hereby expressly releases the Landlord from
all actions, proceedings, claims or demands whatsoever for or on account of or
in respect of any such forcible entry or any loss or damage sustained by the
Tenant in connection therewith. The Tenant waives and renounces the benefit of
any present or future statute taking away or limiting the Landlord's right of
distress, and covenants and agrees that notwithstanding any such statute none of
the goods and chattels of the Tenant on the Premises at any time during the Term
shall be exempt from levy by distress for Rent in arrears. The Tenant covenants
and agrees to indemnify and save harmless the Landlord from and against any and
all manner of actions or causes of action, damages, costs, loss or expenses of
whatever kind which the Landlord may sustain, incur or be put to be put to by
reason of or arising out of the distress, seizure or the levy of distress
against any goods or chattels on or in the Premises whether owned by the Tenant
or any other person, and such liability to indemnify and save harmless shall
survive any termination of this Lease and the expiry of the Term, anything in
this Lease to the contrary notwithstanding.
9.11 Landlord's Expenses Enforcing Lease
If it shall be necessary for the Landlord to retain the services of any
person for the purpose of assisting the Landlord in enforcing any of its rights
hereunder or otherwise available at law, the Landlord shall be entitled to
collect from the Tenant the reasonable cost of all such services including, but
not limited to, all legal fees and disbursements incurred in enforcing the
Landlord's rights hereunder and in connection with all necessary court
proceedings at trial or on appeal on a solicitor and own client basis, as if the
same were Rent reserved and in arrears hereunder. Notwithstanding anything
contained herein to the contrary, in the event the Tenant obtains an order from
a court of competent jurisdiction determining that the landlord wrongfully
enforced the terms of the Lease, there shall be no obligation on the Tenant to
pay the legal costs incurred by the Landlord to enforce the terms of the lease
in such event.
9.12 Remedies Cumulative
No remedy conferred upon or reserved to the Landlord under this Lease, by
statute or otherwise, shall be considered exclusive of any other remedy, but the
same shall be cumulative and shall be in addition to every other
26
remedy available to the Landlord and all such remedies and powers of the
Landlord may be exercised concurrently and from time to time and as often as the
Landlord deems expedient.
9.13 Damage or Injury
The Landlord shall not be liable for any personal injury, death or
property loss or damage sustained by the Tenant, or its employees, agents,
subleases, licensees or those doing business with it in the Premises, in the
Building, or anywhere on the Land, no matter how caused, except to the extent
caused by the negligence of the Landlord or those persons for whom the Landlord
is, in law, responsible, and the Tenant shall indemnify the Landlord against all
actions or liabilities arising out of such personal injury, death or property
damage or loss, except to the extent caused by the negligence of the Landlord or
those persons for whom the Landlord is, in law, responsible. The Tenant hereby
releases the Landlord and its officers, agents and employees from all claims for
damages or other expenses arising out of such personal injury, death or property
loss or damage, except to the extent caused by the negligence of the Landlord or
those persons for whom the Landlord is, in law, responsible. Without limiting
the foregoing, the Landlord shall not be liable for any personal injury, death
or property loss or damage sustained by the Tenant or its employees, agents,
sublessees, licensees or invitees in the Premises, in the Building, on the Land
or anywhere on the Land caused by theft or breakage or by steam, water, rain,
snow, radioactive materials, microwaves, deleterious substances, gases,
pollutants or any other materials or substances which may leak into, issue or
flow from any part of the building or lands, or any adjacent or neighbouring
lands and premises or from the water, steam or drainage pipes or plumbing works
of the same or from any place, or any loss or damage caused by or attributable
to the condition or arrangements of any electric or other wiring or any damage
caused by anything done or omitted to be done by any other tenant or occupant of
the building except to the extent caused by the negligence of the Landlord or by
those persons for whom the Landlord is, in law, responsible, and the Tenant
shall indemnify the Landlord against all actions or liabilities arising out of
such personal Injury, death or property damage or loss, except to the extent
caused by the negligence of the Landlord or those persons for whom the Landlord
is, in law, responsible. The Tenant thereby releases the Landlord and its
officers, agents and employees from all claims for damages or other expenses
arising out of such personal injury, death or property loss or damage, except to
the extent caused by the negligence of the Landlord or those persons for whom
the Landlord is, in law, responsible.
9.14 Holding Over
If the Tenant shall hold over after the expiration of the Term and the
Landlord shall accept the Rent or any portion thereof the new tenancy thereby
created shall be deemed a monthly tenancy and not a yearly tenancy and shall be
subject to the covenants and conditions herein contained insofar as the same are
applicable to a tenancy from month to month, except that if the Tenant remains
in possession with or without the Landlord's written consent, the monthly
instalments of Annual Basic Rent shall be two (2) times the monthly instalments
of Annual Basic Rent payable for the last month of the Term, prorated on a daily
basis for each day that the Tenant remains in possession, and in addition the
Tenant shall be liable for all costs, expenses, losses and damages resulting or
arising form the failure of the Tenant to deliver up possession of the Premises
to the Landlord.
9.15 Inability to Perform
Whenever and to the extent that the Landlord shall be unable to fulfill,
or shall be delayed or restricted in the fulfillment of any obligation hereunder
by reason of being unable to obtain the material, goods, equipment, service,
utility or labour required to enable it to fulfill any such obligation or by
reason of any statute, law or order-in-council or any regulation or order passed
or made pursuant thereto or by reason of the order or direction of any
administrator, controller or board, or any governmental department or officer or
other authority, or by reason of not being able to obtain any permission or
authority required thereby, or by reason of any other cause beyond its control
whether of the foregoing character or not, the Landlord shall be entitled to
extend the time for fulfillment of such obligation by a time equal to the
duration of such delay or restriction, and the Tenant shall not be entitled to
compensation for any inconvenience, nuisance or discomfort or damage thereby
occasioned, and shall not be entitled to cancel or terminate this Lease.
27
9.16 Interest
Interest on any money due to the Landlord under this Lease shall be paid
by the Tenant and shall accrue on a daily basis at the rate of eighteen (18%)
percent per annum (one and one-half (1 1/2%) percent per month), such rate of
interest to be calculated and compounded monthly, not in advance, from the
respective date upon which any such money becomes due to the Landlord.
9.17 Expropriation
If the whole of the Premises shall be acquired or condemned by an
authority having the power for such acquisition or condemnation then the Term
shall cease from the date of entry by such authority. Nothing herein contained
shall prevent the Landlord or the Tenant or both from recovering damages from
such authority for the value of their respective interests or for such other
damages and expenses allowed by law.
9.18 Accrual of Annual Basic Rent
The Annual Basic Rent shall accrue from day to day. Where the calculation
of any Additional Rent is not made until the termination or expiry of this
Lease, the obligation of the Tenant to pay such Additional Rent shall survive
the termination or expiry of this Lease and such amounts shall be payable by the
Tenant upon demand by the Landlord.
9.19 Metric Equivalent
Wherever there is any reference in this Lease to a measurement or an area
or the requirement for a measurement or calculation of an area any such
measurement or area may be expressed in either units of imperial measurement or
their metric equivalent as published by Canada Mortgage and Housing Corporation
or any other agency of the Government of Canada designated by the Landlord.
9.20 Net Lease
It is the intention of the parties hereto that this Lease shall be a net
lease and that the Rent provided to be paid to the Landlord hereunder shall be
net to the Landlord and shall yield to the Landlord the entire such rental
during the Term without abatement for any cause whatsoever except as set forth
in subparagraph 9.4(a). Save as specifically set forth in this Lease, all costs,
expenses and obligations of every kind and nature whatsoever relating to the
Premises, whether or not herein referred to and whether or not of a kind now
existing or within the contemplation of the parties hereto, shall be paid by the
Tenant.
9.21 Governing Law
This Lease shall be construed in accordance with, and governed by, the
laws of the Province of British Columbia.
9.22 Number and Gender
Where required the singular number shall be deemed to include the plural
and the neuter gender the masculine or feminine.
9.23 Covenants
The Landlord and the Tenant agree that all of the provisions of this
Lease are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate provision
thereof. Should any provision or provisions of this Lease be illegal or not
enforceable it or they shall be
28
considered separate and severable from this Lease and its remaining provisions
shall remain in force and be binding upon the parties hereto as though the said
provision or provisions had never been included.
9.24 Time of the Essence
Time shall be of the essence of this Lease, save as herein otherwise
specified.
9.25 Headings
Any captions, headings and marginal notes throughout this Lease are for
convenience and reference only and the words and phrases contained therein shall
in no way be held or deemed to define, limit, describe, explain, modify, amplify
or add to the interpretation, construction or meaning of any provision of or the
scope or intent of this Lease nor in any way affect this Lease.
9.26 Inurement
This Lease shall extend to, be binding upon and inure to the benefit of
the Landlord and the Tenant and their respective heirs, executors,
administrators, successors and permitted assigns.
9.27 Joint and Several Liability
All covenants, liabilities and obligations entered into or imposed upon
the Tenant, if more than one person, and the Landlord, if more than one person,
shall be joint and several covenants, liabilities and obligations.
9.28 Continuation of Obligations
This Lease and the obligations of the Tenant hereunder shall continue in
full force and effect notwithstanding any change in the person or persons
comprising the Landlord.
9.29 Consents
(a) Wherever and whenever the approval or consent of the Landlord is required
to be obtained, such approval or consent may be given by such officer, agent,
committee, person or persons as may from time to time be nominated or appointed
in writing by the Landlord for such purpose, and any such power of nomination or
appointment may be deleted by the Landlord. Such nominees, appointees or
delegates shall have the right to withhold approval of or consent to and may
reject any matter or thing submitted for approval or consent, and every such
approval or consent given shall be in writing and may contain such conditions
and stipulations as the Landlord may deem fit.
(b) Whenever the Landlord shall withhold its leave, consent or approval, in
any case where its leave, consent or approval is required under this Lease, the
Landlord shall not be deemed to be withholding such leave, consent or approval
unreasonably if the reason therefor is the due preservation of a standard of
planning and maintenance as high as that required by the Landlord elsewhere in
the building.
9.30 Amendments
This Lease shall constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and shall not be modified,
amended or waived except by an instrument in writing duly executed and delivered
by the parties hereto or by their successors and permitted assigns.
ARTICLE 10 - INDEMNIFIER'S COVENANTS
------------------------------------
29
Intentionally deleted.
If any term, covenant or condition of this Lease or the application thereof to
any person or circumstance is to any extent held or rendered invalid,
unenforceable or illegal, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those with
respect to which it is held invalid, unenforceable or illegal is not affected
thereby and continues to be applicable and enforceable to the fullest extent
permitted by law.
IN WITNESS WHEREOF the landlord and Tenant have duly executed this
indenture.
The Corporate Seal of )
XX. XXXXXX XXXXXXXXXX, INC. )
and LAIDAR HOLDINGS LTD. )
was hereunto affixed in the )
presence of: )
) C/S
)
/s/ XXXXXX XXXXXXXXXX )
---------------------------- )
Authorized Signatory )
Signed, Sealed and delivered )
by THE PLAYHOUSE THEATRE CENTRE )
OF BRITISH COLUMBIA )
in the presence of: ) /s/ signature illegible
) ---------------------------
) Authorized Signatory
/s/ XXXXX PLEEGER )
---------------------------- )
Witness )
) General Manager
) ---------------------------
209-22025 48 Ave. Langley ) Title
---------------------------- )
Address
Except in the case of corporations signing under seal, all signatures must be
witnessed.
30
SCHEDULE "A"
LEGAL DESCRIPTION
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the City of Vancouver, Province of British Columbia, and more
particularly known and described as:
Xxxx 0 xx 0. Xxxxx 00, Xxxxxxxx Xxx 200A. Plan 197
31
SCHEDULE "C"
------------
ADDITIONAL PROVISIONS
1. The following provisions are hereby incorporated into this Lease:
11.0 Option to Renew
---------------
The Landlord covenants and agrees with the Tenant as follows:
(a) 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
nine (9) months and not less than six (6) months prior to the Expiry
Date, to renew this Lease for a further term of five (5) years
(herein called the "Renewal Term") on the terms and conditions of
this Lease, including s. 11.0(b) (herein called the "Renewal Lease")
and with the amount of the Annual Basic Rent for the Premises during
the Renewal Term to be determined by agreement between the Landlord
and the Tenant not later than three (3) months after the date on
which the Landlord received the Renewal Notice from the Tenant, and
with no further option to renew. Failing such agreement within such
three (3) months period, the amount of the Annual Basic Rent for the
Premises during the Renewal Term shall be two (2) times the rent on
that date being six (6) months prior to the expiry date. Provided
however, the amount of the annual Basic Rent for the Premises during
the Renewal Term shall not be less than the amount of the Annual
Basic Rent for the Premises payable during the last month of the
Term. The Landlord and the Tenant covenant and agree that upon
receipt of the Renewal Notice by the Landlord, the Tenant shall be
obligated to lease the Premises from the Landlord and the Landlord
shall be obligated to lease the Premises to the Tenant on the terms
and conditions set forth in this subparagraph 11.0(a). Upon the
written request by the Tenant not more than twelve (12) months prior
to the Expiry Date, the Landlord shall provide the Tenant with a copy
of the form of the Renewal Lease for review by the Tenant prior to
the commencement of the Renewal Term the Landlord shall prepare and
complete the 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.
(b) The Renewal Lease shall also contain the following "Demolition
Clause":
"It is further understood and agreed by the parties concerned that if
during the Renewal Term hereby granted, the Landlord decides to
proceed with demolition of the building, the Landlord shall have the
option to give the Lessee one year's notice of termination of Lease
and the Tenant covenants to vacate the Premises and this Lease and
all its terms and provisions shall be terminated at the expiry of the
one year notice period. Without restricting the generality of the
foregoing there shall be no obligation on the Landlord to pay any
compensation to the Tenant in the event the Landlord invokes its
rights under this clause even if the Landlord bona fide elects not to
demolish the building or any part thereof. In the event the Landlord
evokes its rights under this clause it shall be without prejudice to
the rights under this clause it shall be without prejudice to the
rights and remedies available to the Landlord prior to the expiration
of the one year notice period"
32
11.1 Arbitration
-----------
If under the provisions of the Lease the Landlord and the Tenant have
failed to agree as to the amount of the Annual Basic Rent payable for the
Premises with respect to any renewal term by the date required hereunder,
the determination of the annual 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 permitted
assigns. In making the determination of the amount of the Annual Basic
Rent for any renewal term the arbitrator shall follow the basis for
determination set forth in paragraph of 11.0 applicable to such renewal
term, provided that the amount of the Annual Basic Rent for the Premises
during the Renewal Term shall not be less than the Annual Basic Rent
payable during the Term. The fees and expenses of the arbitrator shall be
borne by the Tenant, subject to the right of the Arbitrator to apportion
specific costs. The provisions of this paragraph shall be deemed to be a
submission to arbitration within the provisions of the Commercial
----------
Arbitration Act, S.B.C. 1986, Ch. 3, and any statutory modifications
---------------
or reenactment 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 Annual Basic Rent for any renewal term is finally determined, the
Tenant shall pay to the Landlord monthly instalments on account of the
Annual Basic Rent equal to the monthly instalment of Annual Basic Rent
payable for the month immediately preceding the commencement of the
renewal term. Once the arbitrator has determined the amount of the Annual
Basic Rent for such renewal term then the Annual Basic Rent paid as
aforesaid shall be adjusted to reflect the Annual Basic Rent as determined
for the respective renewal term and the Tenant shall, forthwith upon
request by the Landlord, pay to the Landlord interest at the rate set
forth in paragraph 9.16 of this lease on the amount by which the monthly
instalments of the Annual Basic Rent for such renewal term as finally
determined exceed the monthly instalments paid by the Tenant on account of
the Annual Basic Rent during such renewal term, such interest to be
computed and accrue from the date of commencement of such renewal term
until the Landlord receives payment in full of the shortfall in the Annual
Basic Rent.
33
SCHEDULE "D"
GOODS AND SERVICES TAX
----------------------
The Tenant will pay, as and when due, to the governmental or statutory authority
or person to which the same are owing or are by law to be paid, or to the
Landlord pursuant to the terms of the agreement, all taxes and assessments
including, without limitation, any excise, goods and services or value added
taxes, or taxes to like effect, as well as any costs or penalties in lieu
thereof or in addition thereto (collectively the "GST") imposed, levied,
assessed or charged during the Term upon or relating to:
(a) rent paid or payable by the Tenant to the Landlord for the Premises or
for the use and occupancy of all or part thereof:
(b) electricity, light, heat, power, water, telephone and utilities of
whatever nature or kind (including without limitation works and services in
connection therewith) used in or supplied to or for the benefit of the Premises;
(c) goods and services which the Landlord provides or causes to be provided
to or for the benefit of the Tenant or Premises;
(d) fixtures or person property in the Premises which have been installed
or placed therein by or for the benefit of the Tenant; and
(e) operations at, occupancy of, or conduct of business in or from the
Premises, wether by or with the permission of the Tenant;
whether or not such GST is payable at law by the Tenant or by the Landlord and
whether or not same is allocated separately in respect of the Premises. The
Tenant agrees to indemnify and save harmless the Landlord from and against any
liability the Landlord may incur to pay all or any such GST. The Landlord's
rights and remedies with respect to the collection of rent will apply equally to
the Landlord's rights to recover from the Tenant all such GST. Upon request by
the Landlord, the Tenant will deliver promptly to the Landlord evidence
satisfactory to the Landlord of payment of all such GST.
34
SCHEDULE "B"
[DIAGRAM OF 1ST AVENUE BLDG.
GROUND FLOOR PLAN APPEARS HERE]
