EXHIBIT 10.25
LEASE
BETWEEN: YONGE WELLINGTON PROPERTY LIMITED
AND: SIMBA TECHNOLOGIES INCORPORATED
COMMENCEMENT DATE: The 1st day of October, 1996
TERMINATION DATE: The 31st day of January, 2002
PREMISES: Xxxxx 000, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
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LANDLORD/TENANT
INDEX
Page
1. INTERPRETATION
1.01 Definitions 1
1.02 1
1.03 1
1.04 1
1.05 2
1.06 2
1.07 2
1.08 2
1.09 2
1.10 2
1.11 2
1.12 2
1.13 2
1.14 2-3
1.15 3
1.16 3
1.17 3
1.18 3
1.19 3
1.20 3-4
2. PREMISES
2.00 4
3. TERM
3.00 4
4. RENT
4.00 4
5. TENANT'S COVENANTS
5.00 4
5.01 Rent 4
5.01.01 4
5.02 Tenant's Taxes 4
5.03 Utilities 4-5
5.04.01 Taxes 5
5.04.02 5
5.04.03 5
5.05.01 Operating Costs 5
5.05.02 5
5.06 Net Lease 5
5.07 Evidence of Payment 5
5.08.01 Repair and Notice 5-6
5.08.02 Care of Premises 6
5.08.03 Failure of Tenant to Repair 6
5.09 Damage Caused by Tenant 6
5.10.01 Assignment and Sub-letting 6
5.10.02 7
5.10.03 7
5.10.04 7
5.10.05 7
5.11 Rules and Regulations 7
5.12 Use of Premises 7-8
5.13 Acts of Tenants Causing Cancellation of
Insurance 8
5.14 Observance of Law 8
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5.15 Waste and Nuisance 8
5.16 Entry by Landlord 8
5.17 Indemnity 8-9
5.18 Tenant's Insurance 9-10
5.19 Goods and Chattels Not to be Removed 10
5.20 Showing Premises and Displaying Signs 10
5.21.01 Alterations 10
5.21.02 10
5.21.03 10
5.22 Interior Finishing 10-11
5.23 Signs 11
5.24 Keep Tidy 11
5.25 Certificates 11
5.26.01 Surrender of Possession 11
5.26.02 11
5.27.01 Additional Services 11
5.27.02 11-12
5.28 Energy Conservation 12
6. LANDLORD'S COVENANTS
6.00 12
6.01 Quiet Enjoyment 12
6.02 Premises to be Ready for Occupancy or
Rent to Xxxxx 12
6.03 To Maintain the Structure 12
6.04 Taxes 12
6.05 Heating 12
6.06 Air-Conditioning 12
6.07 Elevator 12-13
6.08 Access 13
6.09 Washrooms 13
6.10 Janitor Service 13
6.11 Light Fixtures 13
6.12 Insurance 13-14
7. MUTUAL CONDITIONS
7.00 14
7.01 Removal of Fixtures 14
7.02.01 Alterations and Additions 14
7.02.02 14
7.02.03 14
7.03.01 Damage to Premises 14
7.03.02 14
7.03.03 14-15
7.04 Damage to Tenant's Property 15
7.05 Impossibility of Performance 15
7.06 Directory Board 15
7.07.01 Payments to Landlord 15
7.07.02 15-16
7.08.01 Landlord's Right to do Work 16
7.08.02 16
7.09 No Liability for Indirect Damages 16
8. REMEDIES OF LANDLORD ON DEFAULT
8.00 Landlord May Perform Tenant's Covenants 16
8.01.01 Re-Entry 16
8.01.02 16-17
8.01.03 17
8.01.04 Waiver of Exemptions 17
8.01.05 Bankruptcy 17
8.01.06 Right to Terminate 17
8.01.07 Remedies Cumulative 17
8.01.08 Distress 17-18
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9. MISCELLANEOUS
9.01 Notice 18
9.02 Non-Waiver 18
9.03 Overholding 18
9.04.01 Calculation and Allocation of Taxes
and Operating Expenses 18-19
9.04.02 19
9.04.03 19
9.04.04 19
9.04.05 19-20
9.04.06 20
9.05 Landlord's Determinations Conclusive 20
9.06 Subordination of Lease 20
9.07 Lease Entire Relationship 20
9.08 Registration 20
9.09.01 Foreign Investment Review Act 20
9.09.02 21
9.09.03 21
9.10.01 Right to Relocate 21
9.10.02 21
9.10.03 21
9.10.04 21
9.11 21
9.12 21
9.13 21-22
10. GUARANTEE
10.01.01 22
10.01.02 22
10.01.03 22
10.01.04 22
10.01.05 22
10.01.06 23
10.01.07 23
11. ADDITIONAL COVENANTS
11.01 23
SCHEDULES
Schedule "A" Premises
Schedule "B" Rules and Regulations
Schedule "C" Additional Covenants
1. Deposit
2. Option to Renew
3. Fixturing Period
4. Parking
5. Option to Lease Additional Premises
6. Right of First Refusal
7. Right to Terminate
8. Net Lease
9. Asbestos
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LANDLORD/TENANT
THIS LEASE MADE the 3 day of June, 1996
PURSUANT TO THE LAND TRANSFER FORM ACT, PART 2
BETWEEN:
YONGE WELLINGTON PROPERTY LIMITED a company duly incorporated
under the Laws of Ontario, having its Head office at 00 Xxxxx
Xxxxxx, in the City of Toronto, in the Province of Ontario, being
duly licenced to carry on business in the Province of British
Columbia and having its Head Office in British Columbia at 3110 -
000 Xxxx Xxxxxxx Xxxxxx, in the City of Vancouver, in the
Province of British Columbia.
(hereinafter called the "Landlord")
OF THE FIRST PART
AND:
SIMBA TECHNOLOGIES INCORPORATED a company duly incorporated under
the laws of British Columbia, having its head office at 400 - 885
Dunsmuir Street, in the Province of British Columbia.
(hereinafter called the "Tenant")
OF THE SECOND PART
1. INTERPRETATION
Definitions 1.01 For the purposes of this Lease the following
definitions shall apply:
1.02 "Additional Rent" means and refers to any and all sums
of money or charges required to be paid by the Tenant under this
Lease (except rent) whether or not the same are designated as
Additional Rent or whether or not payable to the Landlord or
otherwise and all such sums are payable in lawful money of Canada
without deduction, abatement, set-off or compensation whatsoever.
1.03 "Additional Services" means and refers to the services
and supervisions supplied by the Landlord referred to in Clause
5.27 and to all other services of any nature or kind supplied by
the Landlord to the Tenant in addition to those required to be
supplied by the Landlord to the Tenant pursuant to this Lease,
save and except any services which the Landlord elects to supply
to tenants generally, and the costs of which are included in
Operating Costs.
1.04 "architects" means and refers to an architect or firm
of architects licensed to practice architecture pursuant to the
laws of the Province of British Columbia designated by the
Landlord from time to time as architects.
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1.05 "auditors" means and refers to a chartered accountant
or a firm of chartered accountants licensed to practice as
chartered accountants pursuant to the laws of the Province of
British Columbia, designated by the Landlord from time to time as
auditors.
1.06 "Building" means and refers to the office building
situated on the Lands.
1.07 "Commencement Date" means and refers to the first day
of the term.
1.08 "fire cross-over corridors" means and refers to
corridors connecting staircases on any floor of the Building
constructed at any time pursuant to any regulation, requirement,
or request of the Fire Xxxxxxxx of the City of Vancouver, or of
any other competent governmental authority which are designated
as fire cross-over corridors by the Landlord.
1.09 "insured damage" means and refers to that part of any
damage occurring to the Premises of which the entire cost of
repair (or the entire cost of repair other than a deductible
amount properly includible in Operating Costs) is actually
recoverable by the Landlord under a policy or policies of
insurance from time to time effected by the Landlord. Where an
applicable policy of insurance contains an exclusion for damages
recoverable from a third party, claims as to which the exclusion
applied shall be considered insured damage only if the Landlord
successfully recovers from the third party.
1.10 "Lands" means and refers to the Lands and Premises
located at 000 Xxxxxxxx Xxxxxx,
Lot `A' (reference Plan 10751), Block 31, District Xxx 000,
Xxxxx X, Xxx Xxxxxxxxxxx Xxxxxxxx, Xxxx 000.
1.11 "life safety rooms" means and refers to office space in
the Building designated by the Landlord from time to time for the
exclusive housing of controls installed to assist fire and
emergency personnel, which space would otherwise be rentable.
1.12 "major expenditure" means and refers to any expenditure
incurred by the Landlord during the term of this Lease for
replacement of machinery, equipment, building elements, systems
or facilities used in connection with the Building, or for
modifications or additions to the Building (if one of the
principal purposes of any such modification or addition is to
reduce energy consumption, or to reduce Operating Costs, or if
such modification or addition is required by any governmental
authority or regulation) and which expenditure is greater than
Ten per cent (10%) of the total Operating Costs for the previous
year.
1.13 "normal business hours" means and refers to the hours
from 8:00 a.m. to 6.00 p.m. Monday to Friday, inclusive, of each
week, holidays excepted, or such hours as the Landlord may,
acting reasonably, designate from time to time.
1.14 "Operating Costs" means and refers to the total amount
paid or payable whether by the Landlord or others on behalf of
the Landlord for the complete maintenance and operation of the
Building, the Lands and the improvements thereon to maintain the
Building to the standard of a first class commercial building,
all repairs and replacements required for such maintenance
including the cost of major expenditures amortized over the
period of the economic life of the major expenditures as
determined by generally accepted accounting principles, but not
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to exceed fifteen (15) years and provided that the amortized cost
of the major expenditure shall be calculated on the basis of
equal monthly installments of principal and interest of Ten per
cent (10%) per annum compounded semi-annually, heating and
air-conditioning costs including the purchase of fuel, gas and
steam for heating or other purposes and the costs of making
repairs to the heating and air-conditioning equipment, the costs
of providing hot and cold water, the costs of providing
electricity not otherwise chargeable to tenants, the costs of
painting interior areas not normally rented to tenants and the
costs of painting and otherwise maintaining the outside of the
said Building, the costs of snow removal, landscape maintenance,
refuse removal and window cleaning, fire, casualty, liability and
other insurance costs, telephone and other utility costs, service
contracts with independent contractors and all other expenses
including [reasonable][preceding language was inserted]
management fees paid or payable by the Landlord in connection
with the operation of the Building, improvements and Lands but
shall not include real estate brokers leasing commissions or
similar fees, interest on debt or capital retirement of debt or
any amounts directly chargeable by the Landlord to any tenant or
tenants as otherwise provided herein, but in no case shall
include repairs which fall within insured damage.
1.15 "Premises" shall mean that portion of the Building
shown outlined in red on the Plan attached hereto as Schedule
"A";
1.16 "Proportionate Share" means [Eleven Decimal
Three][preceding language was inserted] per cent (11.3%);
1.17 "rentable area" in the case of the Building, shall be
calculated as if the entire Building were let to tenants
occupying whole floors; in the case of premises occupying a whole
floor, shall include the area occupied, measured from the inside
finish of the permanent outer building wall and the glass line of
exterior glazing with no deductions made for columns and
projections necessary to the Building and shall include life
safety rooms or the area of fire cross-over corridors, washrooms,
electrical closets, and other closets within and exclusively
serving that floor; in the case of premises occupying less than a
whole floor, shall include the area occupied measured from the
inside finish of the permanent outer building wall and the glass
line of exterior glazing, with no deductions made for columns and
projections necessary to the Building, to the office side of
corridor walls and to the centre of partitions separating the
Premises from adjoining premises, to which shall be added a
pro-rated portion of the area of the corridors, wash rooms,
electrical, closets, life safety rooms, the area of fire
cross-over corridors, and other closets within and exclusively
serving that floor; but in no case shall any rentable area
include mechanical equipment areas, the lobby and entrances on
the ground floor, sub-surface areas, stairs (unless installed for
the exclusive benefits of a tenant), elevator shafts, the
vertical conveyor shaft, flues, stacks, pipe shafts or vertical
ducts and the wall enclosing them ----- [provided that if the
foregoing varies from BOMA standards of measurement, BOMA shall
govern.][preceding language was inserted]
1.18 "Rules and Regulations" shall mean the Rules and
Regulations set out in Schedule
1.19 "Special Tenant Operating Expenses" means and refers
to, for any given period, the excess, as reasonably determined by
the Landlord, of any expenses incurred by the Landlord for such
period relating to the Premises as a result of the distinctive
configuration of the Premises, or the distinctive nature of the
operation of the Tenant's business, or the distinctive nature of
any of the Tenant's leasehold improvements, which expenses would
otherwise be Operating Costs, including but not limited to any
excess of air-conditioning., heating, lighting, water, electrical
power, and cleaning.
1.20 "Taxes" means and refers to an amount equivalent to all
taxes, rates, duties, levies and assessments whatsoever,
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whether municipal, parliamentary, school or otherwise charged
upon the Building, the Lands, and all improvements now or
hereafter located thereon or upon the Landlord on account thereof
including all taxes, rates, duties, levies and assessments for
local improvements but excluding any tax which has been attracted
by the Tenant's improvements and equipment and excluding such
taxes as corporate, capital, income, profits or excess profits,
taxes assessed upon the income of the Landlord and shall also
include any and all taxes which may in the future be levied in
lieu of Taxes as hereinbefore defined.
2. PREMISES 2.00 In consideration of the rents, covenants, and agreements
hereinafter reserved and contained on the part of the Tenant to
be paid observed and performed, the Landlord hereby leases the
Premises to the Tenant.
3. TERM 3.00 To have and to hold the Premises for the term of Five years
Four months (herein called the "Term") commencing on the 1st day
of October, 1996 and ending on the 31st day of January, 2002.]
4. RENT 4.00 Yielding and paying therefor unto the Landlord at the office
of the Landlord in the Building or at such other place as the
Landlord may direct in writing, during the Term in lawful money
of Canada the rent of Four Hundred Fifty-Eight Thousand Five
Hundred Fifty-Five DOLLARS and Fifty CENTS ($458,555.50) payable
without set-off or deduction by equal consecutive monthly
instalments of Zero DOLLARS ($0.00) for the period commencing
October 1, 1996 and ending January 31, 1997 and equal monthly
instalments of Seven Thousand Four Hundred Twenty Six DOLLARS
($7,426.00) for the period commencing February 1, 1997 and ending
September 30, 1999 and equal monthly instalments of Seven
Thousand Eight Hundred Ninety DOLLARS and Thirteen CENTS
($7890.13) for the period commencing October 1, 1999 and ending
January 31, 2002 in advance on the first day of each and every
month during the Term the first instalment to be paid on or
before the Commencement Date. If the Term should commence on a
day other than the first, or end on a day other than the last day
of a month, the rent for the fraction of a month shall be
calculated on a per diem basis at a rate per day equal to one
three hundred and sixty-fifth part of the annual rent. The last
instalment of rent shall be adjusted to reflect any difference
between the aggregate of the monthly instalments and the total
rent payable during the Term.
5. TENANT'S 5.00 The Tenant covenants with the Landlord as follows:
COVENANTS
Rent 5.01 To pay rent.
5.01.01 If the Tenant occupies all or any portion of the Premises
before the Commencement Date, the Tenant shall pay to the
Landlord on the Commencement Date a rental amount in respect of
the period from the date the Tenant so occupies any portion of
the Premises to the Commencement Date. The rental amount shall be
calculated at the same rental rate that is payable pursuant to
paragraph 4 hereof adjusted for the number of days of occupation.
The Tenant shall be bound by all the terms, conditions and
provisos of this Lease during any such period of. occupation
prior to the Commencement Date.
Tenant's 5.02 To pay when due, all taxes, business taxes, business licence
Taxes fees, and other charges, levied or assessed in respect of the use
and occupancy of the Premises by the Tenant, the business or
businesses carried on therein, or the improvements, equipment,
machinery or fixtures brought thereon or belonging to the Tenant,
or to anyone occupying the Premises with the Tenant's consent,
and to pay to the Landlord upon demand the portion of any tax
levied or assessed upon the Lands and Building that is
attributable to any improvements, equipment, machinery or
fixtures on the Premises which are not the property of the
Landlord, or which may be removed by the Tenant. Utilities
Utilities 5.03 The Tenant shall pay all telephone, electric and other
utility charges in connection with the Premises that are not
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4
being supplied by the Landlord as provided herein and in the
event that there is not a separate meter for measuring the
consumption of and charging for electricity used in the Premises,
the Tenant shall pay to the Landlord as Additional Rent in
advance by monthly instalments such amount as may be required by
the Landlord from time to time as a reasonable estimate of the
cost of such electricity; the Tenant shall advise the Landlord of
any appliances or business machines installed by the Tenant
consuming or likely to consume large amounts of electricity and
further, on request from time to time, shall provide the Landlord
with a list of all electrical appliances and business machines
used in the Premises.
Taxes 5.04.01 The Tenant shall pay to the Landlord as additional rent
its Proportionate Share of Taxes as estimated by the Landlord for
the ensuing year. The amount so estimated by the Landlord shall
be paid by the Tenant in equal monthly instalments on account in
advance on each monthly rental payment date. Any adjustment for
over-payment or under-payment of Taxes by the Tenant shall be
made by the Landlord and the Tenant from time to time.
5.04.02 If Taxes shall be increased by reason of any
installations made in or upon or any alterations made in or to
the Premises by the Tenant or by the Landlord on behalf of the
Tenant, the Tenant shall pay the amount of such increase as
Additional Rent.
5.04.03 Any expense incurred by the Landlord in obtaining or
attempting to obtain a reduction in the amount of Taxes shall be
added to and included in the amount of such Taxes.
Operating 5.05.01 The Tenant shall pay to the Landlord as additional rent
Costs the Proportionate Share of Operating Costs on receipt of notice
from the Landlord. Such Proportionate Share payable hereunder may
be estimated by the Landlord, in which event, the amount so
estimated shall be paid by the Tenant in equal monthly
instalments on account in advance on each monthly rental payment
date. In the event of any overpayment or underpayment with
respect to Operating Costs adjustment shall be made by the
Landlord and Tenant from time to time.
5.05.02 To pay any and all Special Tenant Operating Expenses as
herein set forth. Net Lease
Net Lease 5.06 The Tenant acknowledges and agrees that it is intended that
this Lease shall be a completely net lease to the Landlord,
except as expressly set out herein. The Landlord shall not be
responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the
Premises, or the contents thereof and the Tenant shall pay all
charges, impositions, costs and expenses of every nature and kind
relating to the Premises and a Proportionate Share of all
charges, impositions, costs and expenses of every nature and kind
relating to the Building and those parts of the Building not
intended for leasing and the Tenant covenants with the Landlord
accordingly.
Evidence of 5.07 The Tenant shall produce to the Landlord from time to time
Payment at the request of the Landlord satisfactory evidence of the due
payment by the Tenant of all payments required to be made by the
Tenant under this Lease.
Repair and 5.08.01 To repair, maintain and keep the Premises in a condition
NOtice of good repair, reasonable wear and tear and damage by fire,
lightning, earthquake, and tempest or other casualty against
which the Landlord is insured only excepted; to permit
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the Landlord to enter and view the state of repair, at all
reasonable times, to repair according to notice in writing and,
except as aforesaid, to leave the Premises in good repair; to
give immediate notice to the Landlord of any defect in the
foundations, outer walls, roof, spouts, and gutters of the
Building, all of the common areas therein, and the plumbing,
sewage, electrical, heating and air-conditioning systems.
Care of 5.08.02 The Tenant shall take good care of the Premises and keep
Premises same in a clean, tidy and healthy condition at all times. The
Tenant shall, at its own expense, replace or repair, under the
direction and to the reasonable satisfaction of the Landlord, the
glass, box and trimmings of the door and windows in or about the
Premises which become damaged or broken except any glass, locks
or trimmings, damaged or broken by the Landlord, its employees,
agents or contractors.
Failure of 5.08.03 If the Tenant should fail to repair in accordance with to
Tenant to the provisions hereof, the Landlord, its agents, or employees may
Repair forthwith enter the Premises and make the required repairs and
for that purpose the Landlord may bring and leave upon the
Premises all necessary tools, materials and equipment, and the
Landlord will not be liable to the Tenant for any inconvenience,
annoyance or loss of business or any injury or damages suffered
by the Tenant by reason of the Landlord effecting such repairs
unless caused by the negligence of the Landlord, its agents or
employees, and the expense of such repairs will be borne by the
Tenant who shall pay it to the Landlord forthwith upon demand
together with an administrative charge of fifteen per cent (15%)
of such expense, which amounts shall be recoverable by the
Landlord as if it were rent in arrears.
Damage Caused 5.09 Notwithstanding paragraph 5.08.01, if the Building,
by Tenant including the Premises, the elevators, boilers, engines, pipes
and other apparatus (or any of them) used for the purpose of
heating or air-conditioning the Building or operating the
elevators, or if the water pipes, drainage pipes. electric
lighting or other equipment of the Building or the roof or
outside walls become damaged or destroyed through negligence,
carelessness or misuse by the Tenant, his servants, agents,
employees, or anyone permitted by him to be in the Building, or
through him or them in any way damaging the heating apparatus,
elevators, water pipes, drainage pipes, or other equipment or
part of the Building, the expense of the necessary repairs, plus
an administrative charge of Fifteen per cent (15%) of such
expense shall be recoverable by the Landlord as if it were rent
in arrears.
5.10.01 The Tenant shall not assign this Lease or any of its
rights hereunder or sublet Sub-letting all or any part of the
Premises without the prior written consent of the Landlord. If,
in the [reasonable][preceding language was inserted] opinion of
the Landlord, the proposed assignee or sublessee meets the
[reasonable][preceding language was inserted] requirements of the
Landlord as to:
(a) Financial condition and stability;
(b) General commercial reputation; and
(c) Compatibility with the other tenants in the Building;
the consent of the Landlord will not be unreasonably withheld,
provided however, as a condition to the giving of such consent,
the total rent to be paid by the assignee, transferee or
sublessee which exceeds the rent referred to in Article 4.00
herein and Additional Rent (on a proportionate basis relative to
the space occupied) to be paid by the Tenant to the Landlord
under the terms of the Lease, shall be paid to the Landlord.
[The Tenant may assign without the Landlord's consent to an
affiliate or subsidiary company.][preceding language was
inserted]
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5.10.02 If the Tenant intends to assign or sublet, the Tenant
shall first give to the Landlord written notice of the proposed
transaction setting out in detail the terms and conditions
thereof, and provide all other information relating thereto
requested by the Landlord. Notwithstanding the generality of the
foregoing the Tenant shall provide to the Landlord:
(a) full particulars of the proposed transaction with copies
of all documents relating thereto;
(b) full particulars of the financial worth, residence and
identities of all parties to the transaction and if a
corporation, of all its directors, officers, shareholders or
members and the intended business to be carried on.
5.10.03 In the event that the Tenant desires to assign, sublet,
or part with possession of all or any part of the Premises, or
transfer this Lease and the Tenant gives notice to the Landlord
of such desire, specifying therein the proposed assignee,
transferee or sublessee the Landlord shall, within thirty (30)
days thereafter, notify the Tenant in writing either, that (i) it
consents or (ii) it does not consent, or (iii) that it elects to
cancel this Lease in preference of the giving of such consent. In
the event that the Landlord elects to cancel this Lease as
aforesaid, the Tenant shall notify the Landlord in writing within
fifteen (15) days thereafter of the Tenant's intention either to
refrain from assigning, subletting or parting with or sharing
possession or to accept the cancellation of this Lease. Should
the Tenant fail to deliver such notice within such period of
fifteen (15) days, this Lease will be terminated thirty (30) days
from the date the Landlord elects to cancel the Lease thereafter.
5.10.04 In no event shall any assignment or subletting to which
the Landlord may have consented release or relieve the Tenant
from his obligations to fully perform all of the terms, covenants
and conditions of this Lease on his part to be performed and in
any event the Tenant shall be liable for the Landlord's
reasonable costs incurred in connection with the Tenant's request
for consent.
5.10.05 [If the Tenant is an incorporated company the sale
transfer, or disposition of any of its shares which would give
rise to a change in control of such company shall be deemed, for
the purposes hereof, to be an assignment of this Lease. The prior
written consent of the Landlord shall be required for such a
transfer, sale or dispositon accordingly. [The preceding language
was struck through]
Rules and 5.11 To observe and perform, and to cause its employees, invitees
Regulations and others over whom the Tenant can reasonably be expected to
exercise control to observe and perform, the Rules and
Regulations, and such further and other reasonable rules and
regulations and amendments and changes therein as may hereafter
be made by the Landlord and notified to the Tenant, except that
no change may be made that is inconsistent with this Lease unless
the Tenant consents thereto. The Tenant acknowledges and agrees
that the Rules and Regulations, as from time to time amended, are
not necessarily of uniform application, but may be waived in
whole or in part in respect of other tenants without affecting
their enforceability with respect to the Tenant and the Premises,
and may be waived in whole or in part with respect to the
Premises without waiving them as to future application to the
Premises; and the imposition of such rules and regulations shall
not create or imply any obligation of the Landlord to enforce
them or create any liability of the Landlord for their
non-enforcement.
Use of 5.12 To use the Premises only for general office purposes and not
Premises to carry on or permit to be carried on therein any other
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trade or business and not to do or omit or permit to be done or
omitted upon the Premises anything which shall cause the rate of
insurance upon the Building to be increased and if the rate of
insurance on the Building shall be increased by reason of the use
made by the Tenant of the Premises, or by reason of anything done
or omitted, or permitted to be done or omitted by the Tenant or
by anyone permitted by the Tenant to be upon the Premises, to pay
on demand to the Landlord the amount of such increase.
Acts of 5.13 That if any policy of insurance upon the Building or any
Tenants part thereof shall be Causing cancelled by the insurer by reason
Causing of the use or occupation of the Premises or any part thereof of
Cancellation by the Tenant or by any Assignee or sub-tenant of of Insurance
of Insurance the Tenant or by anyone permitted by the Tenant Insurance to be
upon the Premises, the Landlord may at its option terminate this
Lease forthwith by leaving upon the Premises notice in writing of
its intention so to do and thereupon rent and any other payments
for which the Tenant is liable under this Lease shall be
apportioned and paid in full to the date of such termination and
the Tenant shall immediately deliver up possession of the
Premises to the Landlord and the Landlord may re-enter and take
possession of them.
Observance 5.14 To comply with all provisions of law including federal and
of Law provincial legislative enactments, building by-laws, and any
other governmental or municipal regulations which relate to the
partitioning, equipment, operating and use of the Premises, and
to the making of any repairs, replacements, alterations,
additions, changes, substitutions or improvements to the
Premises, and to comply with all police, fire and sanitary
regulations imposed by any federal, provincial or municipal
authority or made by fire insurance underwriters, and to observe
and obey all governmental and municipal regulations and other
requirements governing the conduct of any business conducted in
the Premises.
Waste and 5.15 Not to do or suffer any waste or damage, disfiguration or
Nuisance injury to the Premises or the fixtures and equipment thereof or
permit or suffer any overloading of the floors thereof; and not
to place therein any safe, heavy business machine, or other heavy
thing, without first obtaining the consent in writing of the
Landlord: and not to use or permit to be used any part of the
Premises for any dangerous, noxious or offensive trade or
business and not to cause or permit any nuisance on the Premises.
Entry by 5.16 To permit the Landlord, its servants or agents, to enter the
Landlord Premises at any time and from time to time for the purpose of
inspecting and of making repairs, alterations or improvements to
the Premises or to the Building where, in the discretion of the
Landlord, such repairs, alterations, or improvements are
necessary for the safety of the Building or the proper operations
of the Building's services, and the Tenant shall not be entitled
to compensation for any inconvenience, nuisance or discomfort
occasioned thereby. The Landlord, its servants or agents may at
any time enter upon the Premises to remove any article or remedy
any condition which in the opinion of the Landlord would be
likely to lead to cancellation of any policy of insurance upon
the Building or any part thereof, and such entry by the Landlord
shall not be deemed to be a re-entry.
Indemnity 5.17 The Tenant shall indemnify and save harmless the Landlord
from any and all liabilities, damages, costs, claims, suits or
actions which arise out of any breach, violation or
non-performance of any covenant, condition or agreement in this
Lease set forth and contained on the part of the Tenant to be
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observed and performed, any damage to property while such
property is on the Premises and any injury to any licensee,
invitee, agent or employee of the Tenant, including death which
occurs in or about the Premises and or the Buildings and Lands of
which the Premises are situate. This indemnity shall survive the
termination of this Lease.
Tenant's 5.18 That the Tenant shall, during the entire term hereof and
Insurance during any period of occupation of the Premises prior to the
Commencement Date, at its sole cost and expense, take out and
keep in full force and effect and in the name(s) of the Tenant,
the Landlord and the mortgagees of the Landlord as their
respective interests may appear, the following insurance:
(a) insurance upon property of every description and kind
owned by the Tenant, in the custody and control of the
Tenant, or for which the Tenant is legally responsible,
is legally liable, or installed by or on behalf of the
Tenant (and which is located within the Building),
including without limitation fittings, installations,
alterations, additions, partitions, fixtures and
anything in the nature of a Leasehold Improvement in an
amount not less than Ninety per cent (90%) of the full
replacement cost thereof, with coverage against at
least the perils of fire and standard extended coverage
including sprinkler leakages (where applicable),
earthquake, flood and collapse. If there is a dispute
as to the amount which comprises full replacement cost,
the decision of the Landlord or the mortgagee of the
Landlord shall be conclusive;
(b) business interruption insurance in such amounts as will
reimburse the Tenant for direct or indirect loss of
earnings attributable to all perils commonly insured
against by prudent tenants or attributable to
prevention of access to the Premises or to the Building
as a result of such perils;
(c) public liability and property damage insurance
including personal injury liability, contractual
liability, non-owned automobile liability and owners'
and contractors' protective insurance coverage with
respect to the Premises and the Tenant's use of any
part of the Building and which coverage shall include
the activities and operations conducted by the Tenant
and any other person on the Premises. Such policies
shall be written on a comprehensive basis with limits
of not less than FIVE MILLION DOLLARS ($5,000,000.00)
for bodily injury to any one or more persons, or
property damages, and such higher limits as the
Landlord or the mortgagee of the Landlord may
reasonably require from time to time, and all such
policies shall contain a severability of interest
clause and a cross liability clause;
(d) Tenant's legal liability insurance for the full
replacement cost of the Premises; coverage to include
the activities and operations conducted by the Tenant
and any other persons on the Premises; and
(e) any other form or forms of insurance as the Tenant or
the Landlord or the mortgagees of the Landlord
reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent
tenant would protect itself.
All policies required to be written on behalf of the Tenant
pursuant to this sub-clause shall contain a waiver of any
subrogation rights which the Tenant's insurers may have against
the
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Landlord and against those for whom the Landlord is, in law,
responsible whether any such damage is caused by the act,
omission, or negligence of the Landlord or by those for whom the
Landlord is, in law, responsible. All policies shall be taken out
with insurers acceptable to the Landlord and in a form
satisfactory from time to time to the Landlord. The Tenant agrees
that certificates of insurance or, if required by the Landlord or
the mortgagees of the Landlord, certified copies of such
insurance policies will be delivered to the Landlord as soon as
practicable after the placing of the required insurance coverage
prior to any material change, cancellation or other termination
thereof.
Goods and 5.19 The Tenant agrees that all goods, chattels and fixtures when
Chattels moved into the Premises shall not, except in the normal course of
Not to be business, be removed from the Premises until Removed all rent and
Removed other amounts due or to become due during the Term of this Lease
are fully paid. Showing Premises Chattels
Showing 5.20 To permit the Landlord or its agents to show the Premises to
Premises prospective tenants during normal business hours of the last and
and Displaying three (3) months of the Term and to display a notice of
Signs reasonable size stating that the Premises are for rent.
Alterations 5.21.01 Not to make or erect in the Premises any installations,
alterations, additions or partitions without submitting drawings,
and specifications to the Landlord and obtaining the Landlord's
prior written consent in each instance [not to be unreasonably
withheld], [preceding language was inserted] and further to
obtain the Landlord's prior written consent to any change in such
drawings and specifications submitted as aforesaid, subject to
payment of the cost to the Landlord of having its architects or
appropriate consultant approve such changes, before proceeding
with any work based on such drawings or specifications; such work
may be performed by contractors engaged by the Tenant and
approved by the Landlord, but in each case only under written
contract approved in writing by the Landlord and subject to all
conditions which the Landlord may impose; provided nevertheless
that the Landlord may at its option require that the Landlord's
contractors be engaged for any mechanical or electrical work;
without limiting the generality of the foregoing any work
performed by or for the Tenant shall be performed by competent
workmen whose labour union affiliations are not incompatible with
those of any workmen who may be employed in the Building by the
Landlord, its contractors or subcontractors; the Tenant shall
permit the Landlord to supervise construction.
5.21.02 The Tenant covenants with the Landlord that the Tenant
shall promptly pay all charges incurred by the Tenant for any
work, materials or services that may be done, supplied or
performed in respect of the Premises and shall forthwith
discharge any liens at any time filed against and keep the Lands
free from liens. In the event that the Tenant fails to do so, the
Landlord may, but shall be under no obligation, to pay into court
the amount required to obtain a discharge of any such lien in the
name of the Tenant and any amount so paid together with all
disbursements and costs in respect bf such proceedings on a
solicitor and client basis shall be forthwith due and payable by
the Tenant to the Landlord as Additional Rent. The Tenant shall
allow the Landlord to post and keep posted on the Premises any
notices the Landlord may desire to post under the provisions of
the Builders' Lien Act or other applicable legislation.
5.21.03 The cost and expense of any alterations, additions,
installations or partitions shall be at the sole cost and expense
of the Lessee and shall be paid for in a manner and according to
such terms and conditions as the Lessor may prescribe. No work
shall commence without arrangements for the payment of the work
being approved by the Landlord.
Interior 5.22 To install in the Premises only such window shades, drapes
Finishing or floor coverings, and to apply only such wall coverings, and
paints, as are first approved in writing by the Landlord [not to
be unreasonably withheld], [preceding language was inserted] and
to install or apply the same by competent workmen,
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and to repair, clean or replace the window shades, drapes, or
floor coverings when required to do so by the Landlord.
Signs 5.23 Not to paint, display, inscribe, place or affix any sign,
picture advertisement, notice, lettering or direction on any part
of the outside of the Building or which is visible from the
outside thereof. The Landlord shall prescribe a uniform pattern
of identification signs for tenants to be placed on the outside
of the doors in the Building, and apart from such identification
sign the Tenant shall not paint, display, inscribe, place or
affix any such sign, picture, advertisement, notice, lettering or
direction without the written consent of the Landlord.
Keep Tidy 5.24 At the end of normal business hours to leave the Premises in
a reasonably tidy condition for the performance of the Landlord's
cleaning services hereinafter referred to.
Certificates 5.25 At any time upon not less than ten (10) days' prior notice
to execute and deliver to the Landlord a statement in writing
certifying that this Lease is unmodified (or, if modified,
stating the modifications) and that it is in full force and
effect, the amount of the annual rent paid hereunder, the dates
to which such rents and other charges hereunder have been paid,
by instalments or otherwise, and whether there is any existing
default on the part of the Landlord of which the Tenant has
notice. The failure to provide the statement requested shall be
deemed to be an event of default for the purposes of this Lease.
Surrender of 5.26.01 The Tenant shall, at the expiration or sooner
Possession determination of the said Term, peaceably surrender and yield up
unto the Landlord the Premises, together with all fixtures,
erections, additions or improvements made to the Premises during
the Term in good and substantial repair and condition and deliver
to the Landlord all keys to the Premises which the Tenant has in
its possession.
5.26.02 The Tenant further covenants that it will not, upon
expiration or sooner determination leave any rubbish or waste
material upon the Premises and will leave the Premises in a clean
and tidy condition.
Additonal 5.27.01 If the Tenant wishes any Additional Services to be
Services performed in or relating to the Premises it shall so advise the
Landlord in writing, and the Landlord shall have the right, but
not the obligation, to perform any such Additional Services. If
the Landlord performs any such Additional Services the Tenant
shall pay the Cost of Additional Services so performed, plus an
administrative charge of Ten per cent (10%) of such cost,
forthwith on demand upon receipt of the invoice therefor from the
Landlord. If the Landlord does not wish to exercise its rights to
perform any Additional Services, the Tenant shall not cause any
such Additional Services to be performed by any person unless and
until he has obtained the consent of the Landlord in writing to
the performance of such Additional Services by such person, such
consent not to be unreasonably withheld.
[Notwithstanding paragraph 5.27.01, if the Tenant requires
additional services such as air conditioning or other
requirements to enable the Tenant to operate outside normal
business hours, then the Landlord will be required to do so upon
reasonable notice from the Tenant and the Tenant shall pay the
cost of Additional Services plus Ten per cent (10%) as herein
provided.] [preceding language was inserted]
5.27.02 If the Tenant disputes the calculation of Cost of
Additional Services as set out on the Landlord's invoice
therefore, he shall so notify the Landlord in writing, and the
Landlord shall upon receipt of such notice request its auditors
to prepare a statement of calculation of the said Cost of
Additional Services, and such statement of calculation shall be
conclusive of such Cost of Additional Services and shall be
binding upon the Landlord and the Tenant. The cost of preparation
of the said statement shall be at the expense of the Tenant and
shall be added to the Cost of Additional Services.
Notwithstanding any such objection taken by the Tenant to the
Landlord's calculation of the Cost of Additional Services, the
full amount as calculated
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by the Landlord in its invoice shall be due and payable on
receipt, and shall be re-adjusted, if necessary, upon receipt of
the auditors' statement.
Energy 5.28 To comply with reasonable measures introduced by the
Conservation Landlord or measures introduced by legislative authority from
time to time in the interest of energy conservation and to
control Operating Costs whereby the Landlord may by the use of a
pulse or other system turn out or reduce all lighting in the
Building except emergency lighting and lighting which the Tenant
may separately control by local switching for the Premises (the
Landlord to communicate from time to time to the Tenant the
schedule for the use of such a system) and reduce energy
consumption in the Premises, provided that if the Tenant does not
participate in such approved measures with respect to the
Premises, the Tenant may be required to pay, as Special Tenant
Operating Expenses, for the additional energy consumed in the
Premises as a result of its not participating in such measures.
6. LANDLORD'S COVENANTS
6.00 The Landlord covenants with the Tenant as follows:
Quiet Enjoyment 6.01 That provided the Tenant shall pay the rent hereby
reserved when due and perform the Tenant's covenants herein,
he shall peaceably hold the Premises during the Term of this
Lease without interruption by the Landlord or any person
rightfully claiming through or in trust for him.
Premises to be 6.02 To complete the Premises ready for occupancy by the
Ready for date of the commencement of the Term provided that if the
Occupancy for Premises are not available for occupancy by the Tenant at
Rent to Xxxxx the date of the commencement of the Term by reason of delays
in the completion of the construction of the Building, or
any cause beyond the control of the Landlord, the rent under
this Lease shall xxxxx until the Premises are available for
occupancy by the Tenant. [and the Tenant hereby agrees to
accept such abatement of rent in full settlement of all
claims which the Tenant might otherwise have because the
Premises were not available at the commencement of the Term]
[the preceding language was struck through]
To Maintain the 6.03 To keep in good repair and condition the foundations,
Structure outer walls, roof, spouts, and gutters of the Building, all
of the common areas therein, and the plumbing, sewage,
electrical, heating and air-conditioning systems, except
those installed by the Tenant in the Premises, or by other
tenants of the Building.
Taxes 6.04 To pay, subject to the provisions of paragraphs 5.02
and 5.04, all taxes and rates, municipal, parliamentary or
otherwise, levied against the Premises or against the
Landlord on account thereof except as herein otherwise
provided.
Heating 6.05 To provide heating of the Premises to an extent
sufficient to maintain a reasonable temperature therein at
all times during normal business hours, except during the
making of repairs; but should the Landlord make default in
so doing, it shall not be liable for indirect or
consequential damages for personal discomfort or illness.
Air Conditioning 6.06 To provide air-conditioning of the Premises to an
extent sufficient to maintain a reasonable temperature
therein at all times during normal business hours, except
during the making of repairs; but should the Landlord make
default in so doing, it shall not be liable for indirect or
consequential damages for personal discomfort or illness.
Elevator 6.07 To furnish, except when repairs are being made,
passenger elevator service during normal business hours; and
to
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permit the Tenant and its employees to have the free use of such
elevator service in common with others, but the Tenants and such
employees and all other persons using the same shall do so at
their sole risk and under no circumstances shall the Landlord be
responsible for any damage or injury happening to any person
while using the elevator or occasioned to any person by any
elevator or any of its appurtenances, unless caused by the
negligence of the Landlord, its agents or employees.
Access 6.08 To permit the Tenant and its employees and all persons
lawfully requiring communication with them to have the use during
normal business hours in common with others of the main entrance
and stairways, corridors and elevators leading to the Premises.
At times other than during normal business hours the Tenant and
the employees of the Tenant and persons lawfully requiring
communication with the Tenant shall have access to the Building
and to the Premises and use of the elevators only in accordance
with the Rules and Regulations attached hereto.
Washrooms 6.09 To permit the Tenant and its employees in common with others
entitled thereto to use the washrooms in the Building on the
floor or floors in which the Premises are situate.
Janitor 6.10 To [provide janitorial services for and][preceding language
was inserted] maintain the Premises in keeping with first class
office building maintenance and such work shall be done by or at
the Landlord's discretion without interference by the Tenant, his
servants or employees. The Landlord shall not be responsible for
any acts or omissions on the part of any person employed to clean
the Premises.
Light 6.11 To clean and maintain the light fixtures provided by the
Fixtures Landlord in the Premises, it being agreed by the Tenant that such
cleaning and maintenance shall be performed exclusively by the
Landlord or its contractors. The Landlord shall not be
responsible for any acts or omissions on the part of any person
employed to clean, repair or maintain the light fixtures.
Insurance 6.12 To insure and keep insured the Building and all improvements
and installations made by the Landlord in the Premises (other
than improvements made in the Premises on behalf of the Tenant or
any previous occupant of the Premises) against loss or damage by
fire, lightning, tempest, and such other standard extended
coverage insurance perils as are normally entered into from time
to time during the term by owners of similar buildings in the
City of Vancouver for such an amount as in the opinion of the
Landlord is necessary to protect the Landlord against such loss
or damage, and on such terms and with such insurer as the
Landlord may in its absolute discretion determine; provided that
and it is agreed, that the Landlord shall not be required to
insure any Leasehold Improvements in the Premises; and further
provided, and it is further agreed, that the Landlord shall not
be liable:
(a) for any damage, (other than Insured Damage) which is
caused by steam, water, rain or snow which may leak into,
issue or flow from any part of the Building, or from the
pipes or plumbing works, including the sprinkler system, or
from any other place or quarter or for any damage caused by
or attributable to the condition or arrangement of any
electric or other wiring or of sprinkler heads or for any
damage caused by anything done or omitted by any other
tenant;
(b) for any act or omission (including theft, malfeasance or
negligence) on the part of any agent, contractor, or person
from time to time employed by it to perform janitor
services, security services, supervision or any other work
in or about the Premises or the Building; or
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(c) for loss or damage, however caused, to money,
securities, negotiable instruments, papers or other
valuables of the Tenant.
6.13 [See Page 14a To provide electricity to the
Premises to a standard in keeping with comparable buildings
in Vancouver.][preceding language was inserted]
7. MUTUAL CONDITIONS
7.00 Provided always and it is hereby agreed as follows:
Removal of 7.01 The Tenant may remove his fixtures from the Premises in
Fixtures the manner provided in the Lease.
Alterations and 7.02.01 All installations, alterations, additions,
Additions partitions, and fixtures other than trade or Tenant's
fixtures in or upon the Premises, whether placed there by
the Tenant or the Landlord, shall, immediately upon such
placement, be the Landlord's property without compensation
therefor to the Tenant and, except as hereinafter mentioned
in this proviso, shall not be removed from the Premises by
the Tenant at any time either during or after the Term.
7.02.02 The Landlord shall be under no obligation to repair
or maintain the Tenant's installation, alterations,
additions, partition and fixtures or anything in the nature
of a leasehold improvement made or installed by the Tenant.
7.02.03 [The Landlord shall have the right upon the
termination of this Lease by effluxion of time or otherwise
to require the Tenant to remove his installations,
alterations, additions, partitions and fixtures or anything
in the nature of a leasehold improvement made or installed
by the Tenant and to make good any damage caused to the
Premises by such installation or removal.] [ preceding
language was struck through]
Damage to 7.03.01 In the event of damage to the Premises by fire,
Premises lightning, earthquake, tempest or other casualty, rent shall
xxxxx in the proportion that the part of the Premises
rendered unfit for occupancy bears in relation to the area
of the Premises until the Premises are again fit for
occupancy; and the Landlord agrees that it will with
reasonable diligence repair the Premises unless the Tenant
is obliged to repair under the terms hereof, or unless this
Lease is terminated as hereinafter provided; subject always
to the provisions of clauses 7.03.02 and 7.03.03.
7.03.02 If the Premises are damaged or destroyed by any
cause whatsoever, and if, in the opinion of the Landlord
reasonably arrived at, the Premises cannot be rebuilt or
made fit for the purposes of the Tenant within One Hundred
and Twenty (120) days of such damage or destruction, the
Landlord, or the Tenant may terminate this Lease by giving
notice to the other party within Fifteen (15) days of the
delivery of the Landlord's opinion to the Tenant. The
opinion of the Landlord shall be delivered to the Tenant in
writing within Thirty (30) days of such damage or
destruction. In the event that notice of termination is
given by either party rent and any other payments for which
the Tenant is liable under this Lease shall be apportioned
and paid to the date of such damage and the Tenant shall
immediately deliver up possession of the Premises to the
Landlord.
7.03.03 Irrespective of whether the Premises are damaged or
destroyed, in the event that fifty per cent (50%) or more of
the rentable area in the Building is damaged or destroyed by
any cause whatsoever, and if, in the opinion of the Landlord
reasonably arrived at, the rentable area cannot be rebuilt
or made fit for the purposes of the tenants of such space
within one hundred and eighty (180) days of the damage or
destruction, the Landlord may at its option determine this
Lease by giving to the Tenant within, thirty (30) days after
such damage notice of termination requiring vacant
possession of the Premises sixty (60) days after delivery of
the notice of termination and thereupon rent and any other
payments for which the Tenant is liable under this Lease
shall be apportioned and paid to the date on
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14
which vacant possession is given and the Tenant shall
deliver up possession of the Premises to the Landlord in
accordance with such notice of termination.
7.04 The Landlord shall not, without proof of
negligence liable or responsible in any way for any loss,
injury to any person or loss of or damage or injury to any
property belonging to the Tenant or to employee of the
Tenant or to any other person while such person or property
is on the Premises or in the Building or in any way conected
therewith whether such property has been entrusted to
employees of the Landlord or not and without limiting the
generality of the foregoing, the Landlord shall not be
liable for any damage to a person or any such property
caused by theft or breakage, steam, water, rain or snow
which may leak into, issue or flow from any part of the
Building or from the water, steam or draingae pipes or
plumbing works of the Building or from any other place or
quarter or for any damage caused by or attributable to the
condition or arrangement of any electric or other wiring or
for any damage caused by anything done or omitted by the
Tenant or any other tenants of the Building.
Impossibility 7.05 Whenever and to the extent that the Landlord [despite
of Performance making reasonable efforts][preceding language was inserted]
shall be unable to fulfill, or shall be delayed or
restricted in fulfilling any obligations hereunder in
respect of the supply or provision of any service or utility
or the doing of any work or the making of any repairs by
reason of being unable to obtain the material, goods,
equipment, service, utility or labour required to enable it
to fulfill 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 government
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 thereby occasioned or be entitled to
a deduction in rent or set off of any kind.
Directory 7.06 The Tenant shall be entitled to have his name shown
Board upon the directory board in the Building, but the Landlord
shall in its sole discretion design the style of such
identification and allocate the space on the directory board
for each Tenant.
Payments to 7.07.01 All payments required to be made by the Tenant under
Landlord or in respect of this Lease shall be made, at such place or
places as the Landlord may designate in writing, to the
Landlord or to such agent or agents of the Landlord as the
Landlord shall hereinafter from time to time direct in
writing to the Tenant. The Tenant shall pay to the Landlord
interest at the rate which is five percentage points above
the lowest rate of interest at the date or dates such amount
becomes owing quoted by the Landlord's bank to the most
creditworthy borrowers for prime business loans, as
determined by any officer of such bank, on all payments of
rent and other sums required to be made under provisions of
this Lease which have become overdue so long as such
payments remain unpaid.
7.07.01 All payments required to be made by the Tenant under
or in respect of this Lease
7.07.02 Other than rent, all payments required to be made
hereunder by the Tenant to the Landlord shall be considered
Additional Rent. Without limiting the generality of the
foregoing, this shall include all sums paid or expenses
incurred hereunder by the Landlord, which ought to have been
paid or incurred by the Tenant, or for which the Landlord
hereunder is entitled to reimbursements from the Tenant, and
any interest owing to the Landlord hereunder. Additional
Rent may be
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recovered by the Landlord by any and all remedies available
to it for the recovery of rent in arrears.
Landlord's Right 7.08.01 The Landlord shall have the right to make additions
to do Work to and/or improvements or installations in and/or repairs to
the Building and/or the common outside areas and the
Landlord may cause such reasonable obstructions of and
interference with the use or enjoyment of the Building, the
Premises and/or common outside areas as may be reasonably
necessary for the purposes aforesaid and may interrupt or
suspend the supply of electricity, water or other services
when necessary and until said additions, improvements,
installations or repairs shall have been completed there
shall be no abatement in rent nor shall the Landlord by
liable by reason thereof provided that all such additions,
improvements, installations or repairs shall be made as
expeditiously as reasonably possible [and the Landlord shall
make reasonable efforts to minimize the effect and
inconvenience to the Tenant].[preceding language was
inserted]
7.08.02 The Landlord and any persons authorized by the
Landlord shall have the right to use, install, maintain
and/or repair pipes, wires, ducts or other installations in,
under or through the Premises for or in connection with the
supply of any services to the Premises or any other Premises
in the Building. Such services shall include, without
limiting the generality of the foregoing, gas, electricity,
water, sanitation, heating, air-conditioning and
ventilation.
No Liability for 7.09 Under no circumstances shall the Landlord be liable
Indirect Damages for indirect or consequential damage or damages for personal
discomfort or illness by reason of the non-performance or
partial performance of any covenants of the Landlord herein
contained, including the heating of the Premises or the
operation of the air-conditioning equipment, elevators,
plumbing or other equipment in the Building or the Premises.
8. REMEDIES OF LANDLORD ON DEFAULT Landlord may
Landlord may 8.00 If the Tenant shall fail to perform or cause to have
Perform Tenant's performed each of the Perform Tenant's covenants and
Covenants obligations of the Tenant in this Lease the Landlord shall
have the right (but Covenants shall not be obligated) to
perform or cause the same to be performed and to do or cause
to be done such things as may be necessary or incidental
thereto (including without limiting the foregoing, the right
to make repairs, installations, erections and extend monies)
and all payments, expenses, charges, fees and disbursements
incurred or paid by or on behalf of the Tenant in respect
thereof shall be paid by the Tenant to the Landlord
forthwith.
Re-Entry 8.01.01 Provided, and it is hereby agreed, that if and
whenever the rent hereby reserved, or any part thereof,
shall be unpaid for seven (7) days after any of the days on
which the same ought to have been paid, although no formal
demand shall have been made therefor, or in case of the
breach or non-performance of any of the covenants or
agreements herein contained on the part of the Tenant, then
and in either of such cases it shall be lawful for the
Landlord at any time thereafter to enter into and upon the
Premises or any part thereof, in the name of the whole, and
the same to have again, repossess and enjoy, as of the
Lessor's former estate, anything hereinafter contained to
the contrary notwithstanding.
8.01.02 The Landlord, in addition to all of the rights
herein shall have the right to enter the Premises as the
agent of the Tenant either by force or otherwise, without
being liable therefore to relet the Premises as the agent of
the Tenant, to receive the rent therefor as the agent of the
Tenant and to take possession of any furniture or other
property on the Premises and sell such furniture or other
property at public or private sale without notice and apply
the proceeds of such sale and any rent
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16
derived from reletting the Premises on account of the rent
under this Lease.
8.01.03 In case the Landlord shall re-enter the Premises
prior to the expiry of this Lease by reason of default by
the Tenant hereunder, the Tenant shall be liable to the
Landlord for the amount of the rent for the remainder of the
Term of this Lease as if such re-entry had not been made
less the actual amount received by the Landlord after such
re-entry in respect of any subsequent leasing applicable to
the remainder of the Term.
Waiver of 8.01.04 That in consideration of the Premises and of the
Exemptions leasing and letting by the Landlord to the Tenant of the
Premises for the Term hereby created (and it is upon that
express understanding that these presents are entered into)
that notwithstanding anything contained in any Statute or in
any Statute which may hereafter be passed, none of the goods
or chattels of the Tenant at any time during the continuance
of the Term hereby created on the Premises shall be exempt
from levy by distress for rent in arrears by the Tenant as
provided for in any such Statute or any amendment or
amendments thereto, and that upon any claim being made for
such exemption by the Tenant or on distress being made by
the Landlord this covenant and agreement may be pleaded as
an estoppel against the Tenant in any action brought to test
the right to the levying upon any such goods as are named as
exempted in any such Statute or amendment or amendments
thereto; the Tenant waiving as the Tenant hereby does all
and every benefit that could or might have accrued to the
Tenant under and by virtue of any such Statute or any
amendment or amendments thereto but for this covenant.
Bankruptcy 8.01.05 The Tenant covenants that if the Term hereby granted
shall be at any time seized or taken in execution or in
attachment by any creditor of the Tenant or if the Tenant
shall make any assignment for the benefit of creditors, or
becoming bankrupt or insolvent shall take the benefit of any
Act that may be in force for bankrupt or insolvent debtors,
then in any such case the said Term shall at the option of
the Landlord, immediately become forfeited and void and the
then current month's rent and the rent for the three (3)
months next following shall immediately become due and
payable and in such case it shall be lawful for the Landlord
at any time thereafter into and upon the Premises, or any
part thereof, in the name of the whole to re-enter and the
same to have again, repossess and enjoy as of its former
estate; anything herein contained to the contrary
notwithstanding.
Right 8.01.06 If and whenever the Landlord becomes entitled to
to Terminate re-enter the Premises under any provision of this Lease, the
Landlord, in addition to all of the rights and remedies,
shall have the right to terminate this Lease forthwith by
leaving upon the Premises notice in writing of such
termination.
Remedies 8.01.07 The Landlord may from time to time resort to any or
Cumulative all of the rights and remedies available to it in the event
of any default hereunder by the Tenant, either by provision
of this Lease or by Statute or the General Law, all of which
rights and remedies are intended to be cumulative and not
alternative, and the express provisions hereunder as to
certain rights and remedies are not to be interpreted as
excluding any other or additional rights and remedies
available to the Landlord by Statute or the General Law.
Distress 8.01.08 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
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17
from levy by distress for rent or any other charges. All
goods and chattels brought by the Tenant onto the Premises
shall be the unencumbered property of the Tenant and they
shall not be subjected to any claim or other encumbrance at
any time without the written consent of the Landlord. If the
Tenant shall leave the Premises leaving any rent or other
amounts owing under this Lease unpaid, the Landlord, in
addition to any other available remedy, may seize and sell
the goods and chattels of the Tenant at any place to which
the Tenant or other person may have removed them in the same
manner as if such goods and chattels had remained and been
distrained upon the Premises.
9. MISCELLANEOUS
Notice 9.01 Any notice required by any provision of this Lease may
be given in writing enclosed in a sealed envelope addressed,
in the case of notice to the Landlord to it at the office of
the Landlord in the Building, and in the case of notice to
the Tenant to him at the Premises, and mailed in the City of
Vancouver, registered and postage prepaid. The time of
giving such notice shall be conclusively deemed to be the
third business day after the day of such mailing. Such
notice shall be sufficiently given when it shall have been
delivered, in the case of notice to the Landlord, to it at
the office of the Landlord in the Building, and in the case
of notice to the Tenant, to him at the Premises. Such
notice, if delivered, shall be conclusively deemed to have
been given and received at the time of such delivery. If in
this Lease two or more persons are named as Tenant, such
notice shall also be sufficiently given if delivered
personally to any of such persons. Either party may, by
notice to the other, from time to time designate another
address in Canada to which notices mailed more than ten (10)
days thereafter shall be addressed.
Non-Waiver 9.02 No condoning, excusing or overlooking by the Landlord
of any default, breach or non-observance by the Tenant at
any time or times in respect of any covenant, proviso or
condition herein contained shall operate as a waiver of the
Landlord's rights hereunder in respect of any continuing or
subsequent default, breach or non-observance, or so as to
defeat or affect in any way the rights of the Landlord
herein in respect of any such continuing or subsequent
default or breach, and no waiver shall be inferred from or
implied by anything done or omitted by the Landlord save
only express waiver in writing. All rights and remedies of
the Landlord in this Lease contained shall be cumulative and
not alternative.
Overholding 9.03 If the Tenant shall continue to occupy the Premises
after the expiration of this Lease with or without the
consent of the Landlord, and without any further written
agreement, the Tenant shall be a monthly Tenant at [a rent
of 1.5 times the last in effect] [preceding language was
inserted] and such tenancy shall be on the terms and
conditions herein set out except as to the rent and the
length of tenancy.
Calculation and 9.04.01 The Landlord shall determine from time to time the
Allocation of rentable area of the Premises and of the Building and shall
Taxes and Taxes and determine from time to time the Tenant's Operating
Operating Expenses Proportionate Share. If the Tenant does not Expenses dispute
the Landlord's determination of the rentable area, or of the
Tenant's Proportionate Share within one (1) year of receipt
of notice of such determination, the Tenant shall be deemed
to accept the accuracy of such determination, and the Tenant
shall not be entitled to dispute the amount of its
Proportionate Share of Operating Costs or Taxes on the
grounds of any error in accuracy in the determination of
rentable area or of the Tenant's Proportionate Share. If the
Tenant disputes the said determination within one (1) year
of receipt of notice of the said determination, the Landlord
shall request the architects to measure the rentable area of
the
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18
Premises and the rentable area of the Building and the
determination so made by the architects shall be binding
upon the Landlord and the Tenant. The cost of the
preparation of the certificate of measurement by the
architects shall be at the expense of the Tenant. It is
understood and agreed that the determination of the Tenant's
Proportionate Share may be recalculated by the Landlord from
time to time to reflect changes in the rentable area of the
Building, of the Premises, or of other premises.
9.04.02 Insofar as the determination of Tenant's
Proportionate Share of Operating Costs and Taxes is
dependent upon calculations other than area measurement, the
same shall be binding upon the Tenant. Further, if taxes are
assessed separately by the relevant taxing authority for the
Premises then the Tenant shall pay its share of Taxes in
accordance therewith. In the event that the Tenant requests
that an audited statement of the calculations be submitted,
the Landlord shall have prepared such audited statement, the
cost of which shall be payable by the Tenant [unless the
Tenant was over charged]. [preceding language was
inserted] Any expenses not directly incurred by the Landlord
but which are included in Operating Costs may be estimated
by the Landlord on whatever reasonable basis the Landlord
may select.
9.04.03 Prior to the commencement of the Term and to the
commencement of each year thereafter which commences during
the Term, the Landlord may estimate the Tenant's
Proportionate Share of Operating Costs and Taxes for the
ensuing year or, if applicable, broken portion thereof, as
the case may be, and shall notify the Tenant in writing of
the estimate. The amount so estimated shall be payable in
equal monthly instalments in advance over the year or broken
portion of the year in question, each instalment being
payable on each monthly rental payment date provided in
Article 4. From time to time during a year the Landlord may
re-estimate the amount of the Tenant's Proportionate Share
of Operating Costs and Taxes for the year or broken portion
thereof, in which event the Landlord shall notify the Tenant
in writing of the re-estimate and shall fix monthly
instalments for the then remaining balance of such year or
broken portion thereof in order that, after giving credit
for the estimates, the Tenant's entire estimated
Proportionate Share of Operating Costs and Taxes will have
been paid during such year or broken portion thereof.
9.04.04 When the necessary information becomes available,
the Landlord shall re-calculate the Tenant's Proportionate
Share of Operating Costs and Taxes for each year or broken
portion thereof referred to in 9.04.03, after the expiry of
the yearly portion thereof. The Landlord and the Tenant
shall expeditiously make between them any re-adjustment
which such re-calculation may show to be necessary, so that
the Tenant shall be credited for any overpayment or debited
for any deficiency. Neither party may claim a re-adjustment
in respect of the Tenant's Proportionate Share of Operating
Costs or Taxes based upon any error of estimation,
determination or calculation thereof unless claimed in
writing prior to the expiration of one (1) year after the
date on which the Tenant has been notified of the
re-calculation referred to herein, other than any claim of
re-adjustment based upon other matters, including without
limitation the outcome of litigation or negotiation
affecting expenses which constitute component parts of the
Taxes or Operating Costs.
9.04.05 In the event that the Landlord shall change its
accounting system or procedures so that it shall become more
convenient for the provisions of Clauses 9.04.03, 9.04.04
and 9.04.06 to be administered on the basis of some twelve
(12) month period other than one ending on December 31, then
the Landlord may determine upon not less than six (6)
months' written notice to the Tenant and other tenants that
such provisions of this Lease and comparable provisions of
other leases of premises in the Building shall be so
administered and after the
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LANDLORD/TENANT
19
expiry of the notice period Clauses 9.04.03, 9.04.04 and
9.04.06 shall be and be deemed to be appropriately amended
to that end.
9.04.06 Notwithstanding the preceding provisions of this
Paragraph, if, during any period for which a computation of
Operating Costs or Taxes must be made, the Building is less
than Ninety per cent (90%) occupied, then the Operating
Costs and Taxes for such period shall be adjusted by adding
to the actual Operating Costs and Taxes for such period an
amount equal to the additional operating expenses and taxes,
as the case may be, which would have been incurred if the
Building had been Ninety per cent (90%) occupied for such
period.
[Notwithstanding the terms of this Paragraph, the Tenant
shall in no event be required to pay more than its
Proportionate Share of Taxes.][preceding language was
inserted]
Landlord's 9.05 Notwithstanding anything to the contrary contained
Determinations herein, in any case where the Landlord is entitled to make a
Conclusive determination relating to the area of the Building or the
Premises, or relating to the allocation or calculation of
any amounts payable pursuant to this Lease, and the Tenant
does not dispute the Landlord's determination within one (1)
year of receipt of notice of such determination having been
made, the Tenant shall be deemed to accept the accuracy of
such determination, and the Tenant shall not be entitled to
dispute any such determination.
Subordination of 9.06 This Lease is subject and subordinate to all ground or
Lease underlying leases and to all mortgages including any deed of
trust and mortgage securing bonds and all indentures
supplemental thereto which may now or hereafter affect such
leases and the parcel of leasehold land constituted thereby,
and to all renewals, modifications, consolidations,
replacements and extensions thereof. The Tenant agrees to
execute promptly any certificate in confirmation of such
subordination as the Landlord may request and hereby
constitutes the Landlord the agent or attorney of the Tenant
for the purpose of executing any such certificate and of
making application at any time and from time to time to
registered postponements of this Lease in favour of any such
mortgage in order to give effect to the foregoing provisions
of this clause.
Lease Entire 9.07 The Tenant acknowledges that there are no covenants,
Relationship representations, warranties, agreements or conditions
expressed or implied, collateral or otherwise forming part
of or in any way affecting or relating to this Lease save as
expressly set out in this Lease and that this Lease
constitutes the entire agreement between the Landlord and
the Tenant and may not be modified except as herein
explicitly provided or except by subsequent agreement in
writing of equal formality executed by the Landlord and the
Tenant. This Lease includes the Schedules attached hereto.
Registration 9.08 The parties agree that the Landlord shall not be
obliged to deliver this Lease in a form registerable under
the Land Title Act of the Province of British Columbia.
Foreign 9.09.01 The Tenant hereby warrants and represents that it is
Investment not a non-eligible person with the meaning of the Foreign.
Review Act Investment Review Act, S.C. 1974, c. 46, as amended or that
it is authorized pursuant to the said Act to carry on all
business carried on or to be carried on by it in the
Premises.
9.09.02 If the Tenant is a non-eligible person within the
meaning of the said Act, or if the Tenant becomes a
non-eligible person within the meaning of the said Act, it
shall not carry on business, or continue to carry on
business, in the Premises without first supplying the
Landlord with all relevant documents and information to
satisfy the Landlord that the Tenant is not carrying on
business in violation of any such legislation, and without
first obtaining the consent of the Landlord to the carry-
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LANDLORD/TENANT
20
ing on of such business, such consent not to be withheld
upon receipt of proof that such business is lawfully carried
on.
9.09.03 The Tenant shall indemnify the Landlord and hold the
Landlord harmless from and against any and all fines,
claims, costs, losses, damages, expenses, liabilities and
demands arising out of the breach by the Tenant of the
warranty or any obligation set forth in this Clause.
Right to 9.10.01 [The Landlord shall have the right at any time
Locate during the term of this Lease to relocate the Tenant to
other reasonably similar or comparable premises within the
Building of approximately the same area as the Premises.
Such right shall be exercisd by the giving of not less than
sixty (60) days notice in writing to the Tenant.
9.10.02 The Landlord shall be responsible for all
reasonable costs and expenses attributable to the relocation
of the Tenant, including the cost of partitioning the new
premises, the cost of the physical movement of the Tenant's
chattels and the relocation of leasehold improvements. The
Landlord shall have no liability for any loss occasioned by
the interruption of the Tenant's business.
9.10.03 If the Landlord relocates the Tenant as aforesaid,
this Lease shall continue in full force with the following
amendments:
(a) The description of the Premises in Schedule "A"
of this Lease shall be amended to contain a
description of the Premises to which the Tenant
has been relocated.
(b) The Proportionate Share definition shall be
amended in light of any change in the area of the
relocated Premises.
(c) The basic annual rent set forth in Article 4
hereof shall be amended by increasing it or
decreasing it by a percentage equal to the
percentage increase or decrease in the area of
the relocated Premises relative to the area of
the Premises formerly occupied by the Tenant.
9.10.04 If the Tenant refuses to allow the Landlord to
relocate the Tenant as aforesaid or if the Tenant attempts
to obstruct such relocation in any manner, the Landlord may,
at its option, terminate this Lease upon thirty (30) days'
written notice to the Tenant without prejudice to any other
rights or remedies it may have and rent and any other
payments for which the Tenant is liable shall be apportiond
and paid to the date of such termination together with the
reasonable expenses of the Landlord attibutable to the
termination of the Lease and the Tenant shall immediately
deliver possession of the Premises to the Landlord.]
[preceding language was struck through]
9.11 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
paragraph hereof. Should any provisions of this Lease be
illegal or not enforceable they shall be considered separate
and severable from the Lease and its remaining provisions
shall remain in force and be binding upon the parties hereto
as though the said provisions had never been included.
9.12 The headings to the Clauses in this Lease have been
inserted as a matter of convenience and for reference only
and in no way define, limit or enlarge the scope or meaning
of this Lease or any provision hereof.
9.13 This Lease and everything herein contained shall enure
to the benefit of and be binding upon the heirs, executors,
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LANDLORD/TENANT
21
administrators, successors, assigns and other legal
representatives, as the case may be, of each of the parties
hereto, subject to the granting of consent by the Landlord
as provided in clause 5.10 to any assignment or sublease,
and every reference herein to any part thereto shall include
the heirs, executors, administrators, successors, assigns,
and other legal representatives of such party, and where
there is more than one tenant or there is a female party or
a corporation, the provisions hereof shall be read with all
grammatical chances thereby rendered necessary and all
covenants shall be deemed joint and several.
10. GUARANTEE
[10.01.01 In consideration of the sum of ONE DOLLAR ($1.00)
now paid by the Landlord to the Guarantor and other valuable
consideration the receipt whereof is hereby acknowledged the
Guarantor hereby covenants with the Landlord that the Tenant
shall duly perform and observe each and every covenant,
proviso, condition and agreement in this Lease on the part
of the Tenants to be performed and observed, including the
payment of rent and all other payments agreed to be paid or
payable under this Lease on the days and at the times and in
the manner herein specified, and that if any default be made
by the Tenant, whether in payment of rent or other sums from
time to time falling due hereunder as and when they become
due and payable or in the performance or observance of any
of the covenants, provisos, conditions or agreements which
under the terms of this Lease are to be performed, or
observed by the Tenant, the Guarantor shall forthwith pay to
the Landlord on demand such rent and other sums in respect
of which such default shall have occurred and all damages
that may arise in consequence of the non-observance or
non-performance of any of the said covenants, provisos,
conditions or agreements.
10.01.02 The Guarantor covenants with the Landlord that the
Guarantor is jointly and severally bound with the Tenant for
the fulfillment of all obligations of the Tenant under this
Lease. In the enforcement of its rights hereunder the
Landlord may provide against the Guarantor as if the
Guarantor were the named Tenant herein.
10.01.03 The Guarantor hereby waives any right to require
the Landlord to proceed against the Tenant or to proceed
against or to exhaust any security held from the Tenant or
to pursue any other remedy whatsoever which may be available
to the Landlord before proceeding against the Guarantor.
10.01.04 No neglect or forbearance of the Landlord in
endeavoring to obtain payment of the rent reserved herein or
other payments required to be made under the provisions of
this Lease as and when they become due, no delay of the
Landlord in taking any steps to enforce performance or
observance of the several covenants, provisos or conditions
contained in this Lease to be performed or observed by the
Tenant, no extension or extension of time which may be given
by the Landlord shall release, discharge or in any way
reduce the obligations of the Guarantor hereunder.
10.01.05 Any account settled or statement or any other
settlement made between the Landlord and the Tenant, and any
determination made pursuant to any provision of this Lease
which is expressed to be binding upon the Tenant shall be
binding upon the Guarantor.
10.01.06 In the event of the termination of this Lease,
except by surrender accepted by the Landlord, or in the
event of disclaimer of this Lease pursuant to any statute,
then at the option of the Landlord the Guarantor shall
forthwith upon demand of the landlord and at the expense of
the Guarantor, execute a new lease of the Premises between
the Landlord as Landlord and Guarantor as Tenant for a term
equal in duration to the residue of the term remaining
unexpired at the date of such termination or such
disclaimer. Such lease shall contain the like landlord's and
tenant's obligations respectively and the like covenants,
provisos, agreements and conditions in all respects
(including the provisos for re-entry) as are contained in
this Lease.
10.01.07 The Guarantor hereby submits to the jurisdiction of
the Courts of the Province of British Columbia in any action
or proceeding whatsoever by the Landlord to enforce its
rights hereunder.] [preceding language was struck through]
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11. ADDITIONAL COVENANTS
11.01 The covenants set out in Schedule "C" hereto shall apply in
addition to the general covenants of this Lease and, in the event
of conflict therewith, shall be considered as exceptions to such
general covenants:
IN WITNESS WHEREOF the Landlord and Tenant have duly
signed and executed these presents at the City of Vancouver,
as of the day, month and year first above written.
The Corporate Seal of )
YONGE WELLINGTON )
PROPERTY LIMITED )
was hereunto affixed in the )
presence of: )
)
)
[s/ Illegible] )
---------------------------- )
Authorized Signatory )
)
[/s/ Illegible] )
---------------------------- )
Authorized Signatory )
)
)
The Corporate Seal of )
SIMBA TECHNOLOGIES )
INCORPORATED )
was hereunto affixed in the )
presence of: )
)
)
[/s/ Illegible )
--------------------------- )
Authorized Signatory )
)
------------------------ )
Authorized Signatory )
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23
SCHEDULE "A"
DEFINITION OF PREMISES
The Premises consist of an area of approximately 11,139 square feet and are
situate in Suite 400 on the 4th floor of the Building as more particularly
set forth on the plan attached hereto in the area outlined in red.
[Floor Plan Description]
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LANDLORD/TENANT
SCHEDULE "B"
RULES AND REGULATIONS
1. No Tenant shall obstruct or encumber any of the
sidewalks, entrances, elevators, stairways, corridors,
halls or any other areas of the Building or the Lands
which is for the use of other persons or any windows,
doors or other areas that reflect or admit light or air
into any part of the Building, for any purpose other
than access to and from the Premises.
2. The water closets and wash basins and other plumbing
fixtures shall not be used for any purposes other than
those for which they were constructed, and no other
substances shall be put therein. All damages resulting
from any misuse of the fixtures shall be borne by the
Tenant who, or whose employees, agents, invitees or
licensees, shall have caused such damages. The Tenant
shall not let the water run unless it is in actual use.
3. No Tenant shall make, paint, drill into, or in any way
deface any part of the [Premises of the] [preceding
language was struck through] Building. No boring,
cutting or stringing of wires shall be permitted,
except with the prior written consent of the Landlord.
No Tenant shall lay any floor covering, so that the
same shall be attached to the floor of the Premises
without the prior consent of the Landlord. If the
Tenant desires telegraph or telephone connections, the
Landlord will direct the electricians as to where and
how the wires are to be introduced, and without such
directions no boring or cutting for wires will be
permitted. No gas pipe or electric wire will be
permitted which has not been ordered or authorized in
writing by the Landlord.
4. No bicycles, vehicles or animals of any kind shall be
brought into or kept in or about the Premises and,
without the prior written consent of the Landlord, no
cooking shall be done on the Premises. No Tenant shall
cause or permit any unusual or objectionable odors to
be produced upon or to emanate from the Premises. Any
hand trucks, carryalls, or similar appliances used in
the Building shall be equipped with rubber tires,
sideguards and other safeguards as the Landlord shall
require.
[The Tenant may provide a parking stall, fenced
and capable of being locked up, for bicycle
storage, subject to the Landlord's reasonable
approval.][[preceding language was inserted]
5. No space in the Building shall be used for
manufacturing, for the storage of merchandise or for
the sale of merchandise, goods or property of any kind
at auction.
6. No Tenant shall, at any time, while on any part of the
Lands, feed or leave any foodstuffs for any birds or
other animals.
7. Each Tenant shall keep its Premises free of waste,
rubbish and debris at all times and provide proper
receptacles in the Premises for waste and rubbish.
8. The Tenant shall not install or permit the installation
or use of any machine dispensing goods for sale in the
Premises or the Building or permit the delivery of any
food or beverage to the Premises without the approval
of the Landlord or in contravention of any regulations
fixed or to be fixed by the Landlord. Only persons
authorized by the Landlord shall be permitted to
deliver or to use the elevators in the Building for the
purpose of delivering food or beverages to the
Premises.
9. No tenants shall make, or permit to be made, any
unseemly or disturbing noises or disturb or interfere
with occupants
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LANDLORD/TENANT
of the Building or any neighbouring buildings or those
having business with them in any way. No animals or
birds shall be brought into the Premises.
10. No Tenant shall throw anything out of the doors or down
the passageways or stairways.
11. No Tenant shall at any time bring or keep upon or allow
to be brought onto the Premises any inflammable,
combustible or explosive fluid, chemical or other
substance.
12. No additional locks or bolts of any kind shall be
placed upon any of the doors, or windows of the
Premises, nor shall any changes be made in existing
locks or the mechanisms thereof. No duplicate keys
shall be made and additional keys may be obtained from
the Landlord at the cost of the Tenant. Each Tenant
shall, upon the termination of his tenancy, return to
the Landlord all keys to the Premises or to any other
part of the Building.
13. The Tenant, his agents, servants, contractors, invitees
or employees, shall not bring in or take out, position,
construct, install or move any safe, business machine
or other heavy office equipment without first obtaining
the consent in writing of the Landlord. In giving such
consent, the Landlord shall have the right in its sole
discretion to prescribe the weight permitted and the
position thereof, and the use and design of planks,
skids, or platforms to distribute the weight thereof.
All damage done to the Building by moving or using any
heavy equipment or other office equipment or furniture
shall be repaired at the expense of the Tenant. The
moving of all heavy equipment or other office equipment
or furniture shall be carried out only between 6:00
p.m. and 7:00 a.m. and at no other time unless
consented to by the Landlord, and the persons employed
to move such equipment or furniture in and out of the
Building must be acceptable to the Landlord. Safes and
other heavy office equipment will be moved through the
halls and corridors only upon steel bearing plates. No
freight or bulky matter of any description shall be
received into the Building or carried in the elevators
except during hours approved by the Landlord.
14. Except as may be otherwise approved by the Landlord, no
Tenant shall occupy or permit to be occupied any
portion of the Premises as an employment bureau, or
advertise for labourers giving the Premises as an
address.
15. All persons entering and leaving the Building at any
time except during normal business hours shall register
in the books kept by the Landlord at or near the night
entrance and the Landlord shall have the right to
prevent any person from entering or leaving the
Building unless provided with a pass in a form to be
approved by the Landlord. Any person found in the
Building at such times without such pass will be
subject to the surveillance of the employees and agents
of the Landlord. The Landlord shall be under no
responsibility for failure to enforce this rule.
16. No one shall use the Premises for sleeping apartments
or residential purposes, or for the storage of personal
effects or articles not required for business purposes.
17. Canvassing, soliciting and peddling in the Building is
prohibited and each Tenant shall co-operate to prevent
the same.
18. The Tenant shall permit window cleaners to clean the
windows of the Premises during normal business hours.
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19. All deliveries to the Premises of bulky goods shall be
made during such hours and by using such entrances,
hallways, corridors and elevator as the Landlord may
from time to time prescribe for such purposes.
20. The Tenant shall permit and facilitate the entry of the
Landlord or those designated by it, into the Premises
for the purpose of inspection, repair, window cleaning
and the performance of other services.
21. The foregoing regulations, as from to time amended, are
not necessarily of uniform application, but may be
waived in whole or in part in respect of other tenants
without affecting their enforceability with respect to
the Tenant and the Premises, and may be waived in whole
or in part with respect to the Premises without waiving
them as to future application to the Premises, and the
imposition of such regulations shall not create or
imply any obligation of the Landlord to enforce them or
create any liability of the Landlord for their
non-enforcement.
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SCHEDULE "C"
ADDITIONAL COVENANTS
1. Deposit
A security deposit in the amount of Forty Thousand Five Hundred Nine
Dollars and Thirteen Cents including G.S.T. ($40,509.13) has been paid
by the Tenant to the Landlord as partial consideration for the
execution of this Lease, and such deposit shall be held by the
Landlord, without liability for interest, as security for the faithful
performance by the Tenant of all the terms, covenants and conditions of
this Lease, and if at any time during the Term the Rent, Taxes,
Operating Costs or other charges properly made by the Landlord
hereunder are overdue and unpaid, then the Landlord may at its option
apply any portion of such security deposit toward the payment of such
overdue Rent, Taxes, Operating Costs or other charge without thereby
limiting or excluding any other rights which the Landlord may have
hereunder or at law, and if such security deposit is not so applied
during the Term then such sum shall be applied towards Rent, Taxes and
Operating Costs for the last Two (2) month's of the Term. In the event
the entire security deposit or any portion thereof is applied towards a
default by the Landlord, such sum as is sufficient to restore the
security deposit to the amount that would have been held by the
Landlord if it had not been applied towards a default, shall be paid by
the Tenant to the Landlord forthwith.
2. Option to Renew
If the Tenant duly and regularly pays the said rent and performs each
and every of the covenants, conditions, provisos, and agreements herein
and in accordance with the provisions of the Lease, the Landlord shall,
at the expiration of the said Term, upon receiving written notice from
the Tenant at least Six (6) months prior to the expiration of the said
Term, grant to the Tenant a renewal lease for the Demised Premises for
a further term of Five (5) years on the same terms and conditions as
the present Lease and this offer except as to this clause, the amount
of any inducements or improvements and except as to the amount of rent
which is to be based upon the fair market rent for the Demised Premises
as they exist at that time, as comparable with premises of similar
size, quality, improvements and location at the time of review (the
"Time Of Review" is the four month period preceding the 5th anniversary
of the Term), as negotiated between the Parties at arm's length and
negotiated during the Time of Review. In the event the Landlord and
Tenant do not agree as to the fair market rent during the Time of
Review, the rent shall be set by arbitration under the provisions of
the Commercial Arbitration Act of British Columbia, provided however,
that the annual rent for the renewal term shall not be less than the
rent payable during the last year of the initial Term.
Notwithstanding the above paragraph, the Tenant may exercise the Option
to Renew so long as the Lease is in good standing at the time of
renewal (i.e. if a default has occurred but has been remedied, that
does not affect the Tenant's right to renew).
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3. Fixturing Period
Commencing June 1, 1996 the Landlord shall provide the Premises to the
Tenant prior to the lease commencement date of October 1, 1996 for the
purposes of installing their tenant improvements and occupancy by the
Tenant. During this period the Tenant shall not be responsible for any
Basic Rent or Building Expenses whatsoever.
4. Parking
The Landlord shall provide the Tenant with Three (3) parking stalls in
the Building at the prevailing monthly rate which is presently $185.00
reserved per stall per month. The rental for stalls is subject to
adjustment to prevailing rates by the Landlord from time to time.
5. Option To Lease Additional Premises
The Tenant shall have an option to lease additional premises on the
third or fifth floors with the rentable area to be between 3,000 and
3,400 square feet with the location of the option space and the exact
size to be determined by the Landlord acting reasonably. The option
space shall have the same term as for the Demised Premises and shall
commence October 1, 1996. The option space shall be provided "as is"
except the Landlord will provide demising walls and entry/exit doors.
The Landlord will also provide the $5.00 p.s.f. allowance payable upon
occupancy of the option space by the Tenant.
The Tenant must give the Landlord written notice that it is exercising
this option on or before September 30, 1996. In the event notice is not
given by the Tenant within the time specified, this option shall
terminate.
6. Right of First Refusal
If at any time after signing the Lease and throughout the Term hereof
(or any renewal term) the Landlord receives an acceptable written offer
to lease the whole or any part of the rentable space on the 3rd or Sth
floors (hereinafter called "Additional Space") of the Building from a
third party, the Landlord shall notify the Tenant in writing and the
Tenant shall have the right to lease the Additional Space upon the same
terms and conditions as are contained in the said acceptable offer to
lease, provided that such right of Tenant shall be exercised by notice
in writing to the Landlord to such effect within Three (3) business
days after the date of receipt of the said notice. If the Tenant shall
fail to exercise such right to lease the said Additional Space within
such Three (3) day period, its Right of First Refusal thereupon shall
terminate for that particular offer to lease.
If the aforesaid right of first refusal is not exercised and further
space on the 3rd or 5th floors becomes available for rental during the
Term hereof or any renewal term, the Tenant shall have the further
right of first refusal concerning a subsequent offer to lease on the
space, and so on from time to time.
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7. Notes to Option and Right Of First Refusal
The Tenant understands that the Right of First Refusal is secondary to
an existing right of first refusal for approximately 500 square feet on
the 3rd floor.
Where the Option to Lease or Right of First Refusal is exercised, the
Tenant's rights for these new premises shall for all purposes of the
lease be the same as for the main Premises. That is, the Option to
Renew shall extend to the revised space, the Termination Right also,
etc.
8. Right to Terminate
The Landlord shall grant to the Tenant a one (1) time right to
terminate the Lease on January 31, 2000, provided that the Tenant gives
to the Landlord written notice of its intention to terminate no later
than July 31, 1999. In order for this termination notice to be valid,
the Tenant shall pay to the Landlord on delivery of notice a
cancellation penalty of $80,000.00 towards the Landlord's costs and
real estate fees. If the Tenant exercise the option to lease additional
premises the penalty will increase proportionately with the increase in
area (if the cancellation is exercised).
If the Tenant exercises one or more rights of refusal, the penalty for
this or these spaces (in the event of cancellation) will be the
unamortized costs of any Landlord's inducements or improvements and
real estate fees.
It is understood that the cancellation shall not be valid without
payment of the appropriate cancellation fee being paid.
9. Net Lease
This is a net lease, but in no case shall the provisions hereof operate
to require the Tenant to effectively subsidize other tenants or
occupants or rentable areas of the Lands, and Operating Costs and Taxes
shall be calculated and determined without duplication or (except as
expressly stipulated herein) profit to the Landlord. Operating Costs
and Taxes shall exclude taxes assessed referable to the Landlord's
income or profit (i.e. income taxes). Operating Costs and Taxes shall
not include any costs relating to asbestos removal. The Landlord shall
make reasonable efforts to minimize operating Costs and Taxes.
10. Asbestos
To the best of the Landlord's knowledge, all asbestos has been removed
from the Building or has been appropriately remediated.
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