Exhibit 10.18
"TERMS OF INSTRUMENT - PART 2"
THIS IS A LEASE made as of the 1st day of April, 1994
IN PURSUANCE OF THE LAND TRANSFER FROM ACT PART 2
BETWEEN:
WESTERN IMMO HOLDINGS INC.
0000 Xxxx 0xx Xxxxxx,
Xxxxxxxxx, X.X. X0X 0X0
(hereinafter called the "Landlord")
OF THE FIRST PART
AND:
WESTBEACH SNOWBOARD CANADA LTD.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
(hereinafter called the "Tenant")
OF THE SECOND PART
ARTICLE 1
DEFINITIONS
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1.01 Defined Terms
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In this Lease
"Building" means collectively the Land and all buildings, structures,
facilities and other improvements erected on the Land;
"Eligible Corporation" means a corporation which controls or is
controlled by or under common control with the Tenant, where to control means to
own beneficially either directly or indirectly more than fifty (50%) percent of
the voting shares of a corporation;
"HVAC Costs" means the cost of heating, ventilating and air-conditioning
the Building and includes but is not limited to cost of fuel, electricity,
operation of air distribution and cooling equipment, labour, materials, repairs,
maintenance, service and other such costs;
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"Land" means the Land described in Schedule "A";
"Lease Year" means a period of twelve (12) consecutive calendar months
during the Term ending on the last day of the financial year of the Landlord
excepting that:
(a) the first Lease Year during the Term begins on the first day of the
Term and ends on the last day of the financial year of the Landlord in
which the first day of the Term occurs, and may be a period less than
twelve (12) consecutive calendar months,
(b) the last Lease Year during the Term begins on the first day of the
financial year of the Landlord during which the last day of the Term
occurs and end on the last day of the Term, and may be a period less
than twelve (12) consecutive calendar months, and
(c) if the Landlord changes its financial year and gives notice to the
Tenant of the first and last days of the new financial year, the
period between the last day of the old financial year and the last day
of the new financial year will be a Lease Year and will be a period
less than twelve (12) consecutive calendar months, and the next Lease
Year will continue consecutively;
"Mortgage" means a mortgage or charge (including a deed of trust and
mortgage securing bonds and all other indentures supplemental thereto) of the
reversion immediately expectant on the Term, and includes all renewals,
modifications, consolidations, replacements and extensions thereof;
"Mortgagee" means the mortgagee or trustee for bondholders, as the
case may be, named in a Mortgage;
"Operating Costs" means the sum (without duplication) of all costs of
the Landlord of operating and maintaining in good repair the Building including
but not limited to the total costs of:
(a) insuring the Building ________ pursuant to the covenants of the
Landlord contained in this Lease, and such other insurance as the
Landlord effects against public liability, property damage, loss of
rental income and other casualties and risks; HVAC Costs, ___________
_______________________ cleaning, including snow removal, garbage and
waste collection and disposal; lighting, electricity (including that
used for
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signs), public utilities; fees and other remuneration payable to firms
for provision of operating, maintenance, property management, legal
and accounting services and if such services are performed by
individuals in the employ of the Landlord, they shall include other
remuneration including contributions to usual fringe benefits,
unemployment insurance and pension plans; the cost to the Landlord of
building supplies and the rental equipment used by the Landlord in the
maintenance and operating services; and depreciation (computed by the
Landlord in accordance with accounting principles generally accepted
in the Province of British Columbia) of fixtures and equipment which
by their nature require periodic replacement, but excluding buildings
and structures and permanent parts thereof,
(b) repair and maintenance of the Building and repair, maintenance and
necessary replacement of all fixtures, fittings and improvements
contained therein, including periodic painting and decorations as
determined by the Landlord, with due diligence and dispatch,
reasonable wear and tear only excepted;
(c) maintaining and operating the area occupied by a central heating or
cooling system or any other service or facility used to heat or cool
the Premises or other parts of the Building;
(d) the amount of all taxes, rates, duties, levies and assessments
whatsoever, whether municipal, provincial, federal or otherwise,
assessed upon the Landlord on account of the capital of the Landlord
as such amount is reasonably allocated by the Landlord to the Building
based upon the Landlord's determination of the fair market value
thereof in proportion to the fair market value of all of the assets of
the Landlord within the applicable jurisdiction with capital deemed to
include the amounts of the capital stock, retained earnings,
contributed and other surpluses and all loans, advances, indebtedness
and other liabilities, whether secured or unsecured, of the Landlord
and all taxes which may in the future be levied in lieu of the
foregoing but excluding income or profits taxes upon the income of the
Landlord and excluding taxes upon the capital of
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the Landlord to the extent that such taxes are credited against the
Landlord's income tax liability provided that such excluded taxes are
not levied in lieu of the foregoing,
"Premises" means the premises leased to the Tenant by this Lease and
described in Section 3.01:
"Tenant's Proportionate Share" where applied to an amount of money
referable to a period of time and where
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expressed to be payable for a Lease Year means: One Hundred (100%) percent of
such amount.
"Term" means the term of this Lease as stipulated in section 3.02;
"Unavoidable Delay" means a delay in performance of an act or
compliance with a covenant caused by fire, inability to procure material,
restrictive laws or governmental regulations or other cause of any kind beyond
the reasonable control of the party obligated to perform or comply, excepting a
delay caused by lack of funds or other financial reason.
ARTICLE II
STRUCTURE OF DOCUMENTS AND INTERPRETATION
-----------------------------------------
2.01 Schedules
---------
The schedules to this document are a part of this Lease and consist of:
Schedule A - Description of Land
2.02 Number and Gender
-----------------
The necessary grammatical changes required to make the provision of this
Lease apply in the plural sense where the Tenant comprises more than one entity
and to corporations, associations, partnerships, or individuals, males or
females, in all cases will be assumed as though in each case fully expressed.
2.03 Headings and Captions
---------------------
The table of contents, article numbers, article headings, section numbers
and section headings are inserted for convenience of reference only and are not
to be considered when interpreting this Lease.
2.04 Obligations as Covenants
------------------------
Each obligation of the Landlord or the Tenant expressed in this Lease
even though not expressed as a covenant, is considered to be a covenant for all
purposes.
2.05 Entire Agreement
----------------
This Lease contains all the representations, warranties, covenants,
agreements, conditions and understandings between the Landlord and the Tenant
concerning the Premises or the subject matter of this Lease
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2.05 Governing Law
-------------
This Lease shall be interpreted under and is governed by the laws of the
Province of British Columbia.
2.06 Net Lease
---------
The Tenant acknowledges and agrees that it is intended that this Lease
shall be a completely carefree net lease for the Landlord, except as expressly
hereinafter set out, and the Landlord shall not be responsible during the Term
for any costs, taxes, charges, expenses or 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 all costs, taxes, charges, expenses and outlays of
every nature and kind relating to the Building and the Land unless expressly
excluded herein, and the Tenant covenants with the Landlord accordingly.
ARTICLE III
PREMISES, TERM, RENT AND ADDITIONAL RENT
----------------------------------------
3.01 The Premises
------------
The Landlord leases to the Tenant for the Term the Premises, which
includes the Land and Building.
3.02 The Term
--------
The Term of this Lease is for FIVE (5) YEARS commencing on the 1st day of
April, 1994 and terminating on the 31st day of March, 1999.
3.03 Minimum Rent
------------
The Tenant will pay to the Landlord, at the office of the Landlord or at
such other place in Canada as the Landlord designates from time to time in
writing, in lawful money of Canada and without deduction or set-off, on the
first day of each month, monthly in advance, the following fixed minimum rent:
April 1, 1994 to March 31, 1996 - $4,166.00 each consecutive month;
April 1, 1996 to March 31, 1997 - $4,666.00 each consecutive month
April 1, 1997 to March 31, 1999 - $6,001.00 each consecutive month
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3.04 - N/A
3.05 Additional Rent and Charges
---------------------------
(1) In each Lease Year the Tenant will pay to the Landlord as additional
rent:
(a) the Tenant's Proportionate Share of the Operating Costs for the
corresponding financial year of the Landlord,
(b) municipal realty taxes (including school taxes) attributable to the
Premises,
(c) the EVAC Cost attributable to the Premises, and
(d) all other sums of money required under this Lease to be paid to the
Landlord by the Tenant whether or not designated as "additional rent."
(2) In each Lease Year the Tenant will pay as additional rent and discharge
when they become due and payable, all taxes, rates, duties and assessments and
other charges that may be levied, rated, charged or assessed against
improvements, equipment and facilities of the Tenant on the Premises, and every
tax and licence fee in respect of every business conducted on or from the
Premises or in respect of their use or occupancy by the Tenant (and any and
every assignee, subtenant, concessionaire, licensee and other person conducting
business on or from the Premises), other than such taxes as corporate, income,
profits or excess profits taxes assessed upon the income of the Landlord,
whether the taxes, rates, duties, assessments and license fees are charged by a
municipal, parliamentary, school or other body. The Tenant will indemnify and
keep indemnified the Landlord against payment for all loss, costs, charges and
expenses arising from all the taxes, rates, duties, assessments and licence fees
referred to and all taxes which may in future be levied in lieu of those taxes,
and any loss, costs, charges and expenses suffered by the Landlord may be
recovered by the Landlord in the same manner as rent hereby reserved and in
arrears. Upon request of the Landlord the Tenant will deliver promptly to the
Landlord for inspection receipts for payment of all taxes, rates, duties,
assessments and other charges in respect of all improvements, equipment and
facilities of the Tenant on the Premises which were due and payable up to one
(1) year prior to the request, and will deliver to the Landlord if requested by
the Landlord, evidence satisfactory to the
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Landlord before the 21st day of January in each year of payments for the
preceding calendar year.
(3) If any of the amounts referred to in subsections (1) and (2) is not paid
at the time provided in this Lease, it will be collectible as rent with the next
instalment of rent falling due, but nothing in this Lease suspends or delays the
payment of any amount of money when it becomes due and payable, or limits any
other remedy of the Landlord.
3.06 Payment of Additional Rent and Charges
--------------------------------------
Whenever the Tenant is to pay in a Lease Year the Tenant's Proportionate
Share of an amount of money referable to a period of time wholly or partly
within the Lease Year the Landlord will estimate the Tenant's Proportionate
Share of the amount before the beginning of the Lease Year and the Tenant will
pay to the Landlord the Tenant's Proportionate Share of the amount in monthly
instalments in advance during the Lease Year with the other rental payments
provided for in this Lease. Within sixty (60) days after the end of each Lease
Year the Landlord will make a final determination of the Tenant's Proportionate
Share of the amount for the Lease Year, and will furnish the Tenant with a
statement of the Operating Costs and HVAC Costs attributable to the Premises for
the relevant financial year or years of the Landlord, the municipal realty taxes
attributable to the Premises for the relevant calendar year or years and all
other amounts referred to in section 3.05(1) paid or payable for any relevant
period and in each case the amount thereof payable by the Tenant relating to the
Lease Year and showing in reasonable detail the information necessary for the
determination of the costs and the calculation of the Tenant's Proportionate
Share of the amount. If the Tenant's Proportionate Share of the amount exceeds
the sum of the instalments paid by the Tenant, the Tenant shall pay to the
Landlord as additional rent within thirty (30) days after the date of delivery
of the statement by the Landlord the excess without interest or, if the sum of
the monthly instalments paid by the Tenant during the preceding Lease Year
exceeds the Tenant's Proportionate Share of the amount, the Landlord will
deliver to the Tenant within thirty (30) days after the date of delivery of the
statement by the Landlord, the excess without interest.
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3.07 Post Dated Cheques
------------------
If the Landlord so requests, the Tenant shall provide post-dated
cheques in payment of rent and additional rent for such period as the Lessor may
request, by way of a series of post-dated cheques to be delivered to the
Landlord.
3.08 Goods and Services Tax
----------------------
The Tenant will pay to the Landlord or to the Federal, Provincial and
Municipal authorities imposing the same, as required by law, all Goods and
Services Tax and other taxes by whatever name called assessed upon or as a
direct result of the payment of rent or any other amounts payable under this
Lease as often as such taxes become due. Without limiting the foregoing, if the
Department of National Revenue issues an assessment claiming that the Landlord
has failed to pay all Goods and Services Tax imposed under the Excise Tax Act
(as amended from time to time and legislation in substitution therefor) in
respect of any amounts payable by the Tenant under this Lease, the Tenant will
immediately pay the amount of such assessment and hold the Landlord harmless
from all liability arising from such assessment.
Article IV - Deleted - Records, Books and Audits
-------------------------
ARTICLE V
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ARTICLE VI
COVENANT TO PAY RENT
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6.01 The Covenant
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The Tenant covenants to pay rent and all other costs and charges as
herein provided.
ARTICLE VII
USE OF PREMISES
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7.01 Purpose of Use
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The Premises will not be used for any purpose other than the purpose
of conducting the business of sporting goods - retail and wholesale and workshop
office use and warehousing and the Tenant will not use the Premises or permit
them to be used for any other purpose. Without limitation, none of the following
businesses or methods of doing business will be conducted on or from the
Premises:
(b) a special sale other than one incidental to the normal routine of the
Tenant's business upon the Premises with its regular customers,
(c) a store for the sale of second-hand goods or surplus articles,
insurance, salvage stock, fire-sale or bankruptcy stock,
(e) an operation in any line of merchandise which makes a practice of
unethical or deceptive advertising or selling procedures.
(f) sleeping apartments or lodging rooms, or
(g) an unlawful purpose.
7.02 Conduct of Business
-------------------
The Tenant will conduct its business in and use the whole of the
Premises continuously throughout the Term in an up-to-date, first class and
reputable manner.
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7.03 Furniture, Furnishing, Equipment and Fixtures not to be removed
---------------------------------------------------------------
The Tenant's furniture, furnishing and equipment and fixtures shall not
be removed from the Leased Premises, except in the normal course of business
carried on upon the Leased Premises, until all Rent due or to become due during
the entire Term of the Lease have been paid in full.
ARTICLE VIII
USE OF COMMON AREAS
-------------------
Deleted
ARTICLE IX
REPAIR
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9.01 Repair by the Landlord
----------------------
Subject to Section 9.03, the Landlord will maintain and repair damage to
the foundations and structure of the Building caused by reasonable wear and tear
and by settling due to improper construction of the Building, provided that such
structural damage shall not be caused by the Tenant, its employees, agents,
servants or independent contractors.
9.02 Repair by Tenant
----------------
The Tenant will:
a) keep in good and substantial state of repair, normal wear and tear excluded
and subject to 9.01 and 9.03 hereof, the Building including all leasehold
improvements and all trade fixtures therein, exterior doors, all glass
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and utilities and all heating, air conditioning and ventilating
equipment therein, but with the exception of structural elements of the
Building;
(b) permit the Landlord to enter and view the state of repair on reasonable
notice except during any emergency when notice will not be required and
will repair according to notice in writing as required by clause (a),
subject only to the exception referred to in clause (a), and will leave
the Premises in a good and substantial state of repair ________________
_____________ subject only to the exception referred to in clause (a),
and
(c) if part of the Building _________________________ becomes in disrepair,
is damaged or destroyed through the negligence of the Tenant or its
officers, employees, customers or other invitees, reimburse the
Landlord the cost of repairs or replacements promptly upon demand
except to the extent that the Landlord is indemnified by insurance.
9.03 Abatement of Rent
-----------------
If there is damage to the Premises or damage to the Building __________
which prevents access to the Premises or the supply of services essential to the
Premises and if the damage is such that the Premises or a substantial part of
the Premises is rendered not reasonably capable of use by the Tenant for the
conduct of its business for a period of time exceeding ten (10) days,
(a) unless the damage was caused by the negligence of the Tenant or an
assignee, subtenant, concessionaire, licensee or other person
conducting business on or from the Premises or an officer, employee,
customer or other invitee of any of them, the fixed minimum rent
payable under Section 3.03 for the period beginning upon the occurrence
of the damage until at least a substantial part of the Premises is
again reasonably capable of use and occupancy for the purpose aforesaid
will xxxxx in the proportion that the area of the part of the Premises
rendered not reasonably capable of use by the Tenant for the conduct of
its business bears to the total area of the Premises; and
(b) unless this Lease is terminated under Section 9.04, the Landlord or the
Tenant or both, as the case may be (according to the nature of the
damage and their respective obligations to repair under Sections
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9.01 and 9.02) will repair the damage with all reasonable diligence, but there
shall be no abatement for time required to repair or replace Tenant's trade
fixtures and leashold improvements which is in excess of the time required to
make other necessary repairs and replacements.
9.04 Destruction of Premises
-----------------------
(1) If the Premises and Building are so damaged by fire or other casualty
that the Landlord decides not to restore them, the Landlord shall within sixty
(60) days after the damage occurs give to the Tenant a notice in writing of such
decision, and thereupon the Term of this Lease shall end, and the Tenant shall
vacate the Premises and surrender them to the landlord.
(2) If this Lease is terminated under subsection: (1) neither the Landlord
nor the Tenant will be bound to repair as provided in Sections 9.01 and 9.02,
and the Tenant will deliver up possession of the Premises to the Landlord with
reasonable speed but in any event within fifteen (15) days after the giving of
the notice of termination, and all rent will be apportioned and paid to the
date, but otherwise the Landlord or the Tenant or both, as the case may be
(according to the nature of the
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damage and the respective obligations to repair) under Sections 9.01 and 9.02
will repair the damage with all reasonable diligence.
ARTICLE X
UTILITIES AND SERVICES - PREMISES
---------------------------------
10.01 Utility and Service Charges
---------------------------
The Tenant is solely responsible for and will promptly pay all charges
for water, gas, electricity, janitor service, window cleaning, and any other
utility or service used on the Premises. The Landlord will not be liable to the
Tenant in damages or otherwise for an interruption or failure in the supply of
utilities or services to the Premises unless caused by the negligence of the
Landlord or another person for whose negligence the Landlord is responsible in
law.
10.02 Tenant not to Overload Utility and Service Facilities
-----------------------------------------------------
The Tenant will not install equipment that will exceed or overload the
capacity of utility facilities and agrees that if equipment installed by the
Tenant requires additional facilities, they will be installed at the Tenant's
expense in accordance with plans and specifications reasonably approved by the
Landlord prior to installation.
ARTICLE XI
SUBORDINATION, ATTORNMENT AND STATUS STATEMENT BY TENANT
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11.01 Subordination and Attornment
----------------------------
The Tenant will subordinate this Lease to every mortgage that
hereafter affects the Land and
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execute promptly a document in confirmation of the subordination if requested by
the Landlord in which the Tenant also will agree with the mortgagee that if the
mortgagee becomes a mortgagee in possession or takes action to realize the
security of the mortgage the Tenant will attorn to the mortgagee as a tenant
upon all the terms of this Lease, but only if the mortgagee agrees in writing to
accept the attornment and permit the Tenant to continue in occupation of the
Premises until this Lease is terminated by the passage of time or by action
taken because of a default of the Tenant. If the Tenant fails to execute the
documents of confirmation or attornment requested by the Landlord the Landlord
may terminate this Lease after the expiration of ten (10) days' notice of its
intention to do so because of the Tenant's failure unless within the ten (10)
day period the Tenant executes the documents.
11.02 Status Statement
----------------
At any time or times at reasonable intervals within fifteen (15) days
after a written request by the Landlord the Tenant will execute, acknowledge and
deliver to the Landlord or such assignee or mortgagee as the Landlord
designates, a certificate stating:
(a) that this Lease is unmodified and in force and effect and in
accordance with its terms (or if there have been modifications, that
this Lease is in force and effect as modified, and identifying the
modification agreements, or if this Lease is not in force and effect,
that it is not),
(b) the date to which rental has been paid under this Lease,
(c) whether or not there is an existing default by the Tenant in the
payment of rent or any other sum of money under this Lease, and
whether or not there is any other existing default by either party
under this Lease with respect to which a notice of default has been
served, and if there is such a default specifying its nature and
extent, and
(d) whether or not there are any set-offs, defences or counterclaims
against the enforcement of the obligations to be performed by the
Tenant under this Lease.
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ARTICLE XII
INSURANCE AND INDEMNITY
-----------------------
12.01 Insurance
---------
The Tenant will take out and keep in force throughout the Term and
during such other time as the Tenant occupies the Premises or part thereof all
risk direct damage insurance upon its merchandise, stock-in-trade, furniture,
plate glass, fixtures and improvements and all parts of the Premises which the
Tenant is obligated to keep in repair under Section 9.02 to the full replacement
Value thereof, and broad boiler insurance on any boilers in the Premises. The
Tenant will take out and maintain other insurance in amounts and upon terms
reasonable for a prudent tenant to provide, as determined by the Landlord.
12.02 Comprehensive General Liability Insurance
-----------------------------------------
The Tenant will take out and keep in force throughout the Term
comprehensive general liability insurance against claims for personal injury,
death or property damage or loss arising out of all operations of the Tenant and
subtenants, concessionaires, licensees and other persons conducting business on
or from the Premises, indemnifying and protecting the Landlord and the Tenant to
a limit of two million ($2,000,000.00) dollars inclusive, or such additional
amount as would be carried by a prudent owner.
12.03 The Insureds
------------
Each insurance policy referred to in sections 12.01 and 12.02 will
name the Landlord and the persons, firms or corporations designated by the
Landlord as additional named insureds as their interest may appear, will contain
if available and as appropriate a waiver of rights of subrogation against the
Landlord and the Tenant or a cross-liability clause protecting the Landlord and
other insureds designated by it against claims by the Tenant as if the Landlord
and other insureds designated by it were separately insured, and protecting the
Tenant against claims by the Landlord and other insureds by it as if the Tenant
were separately insured, and will contain a clause that the insurer will not
cancel or change or refuse to renew the insurance without first giving the
Landlord thirty (30) days' prior written notice. All policies of insurance will
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be with insurers acceptable to the Landlord and in form satisfactory to the
Landlord, and the Tenant will see that there is delivered to the Landlord copies
or certificates of the policies. And will provide written evidence of the
continuation of such policies not less than ten (10) days prior to their
expected expiry dates. If the Tenant fails to take out or keep in force any
policy of insurance referred to in sections 12.01 and 12.02 the Landlord may do
so and pay the premium, and in that event the Tenant will pay the premium, and
in that event the Tenant will pay to the Landlord the amount so paid as premium
as additional rent and it will be due and payable on the first day of the month
following the payment by the Landlord.
12.04 Landlord's Insurance
--------------------
The Landlord will take out and keep in force throughout the Term all
risks direct damage insurance on the buildings and improvements comprised in the
Building but which may exclude foundations and the improvements upon which the
Tenant is obliged to take out insurance under section 12.01, with responsible
insurance companies and in an amount such as would be carried by a prudent
owner, and the cost of the insurance will be included in Operating Costs. Each
insurance policy referred to in this section will contain, if available, a
waiver of the right of subrogation against the Tenant to the extent only of that
part of a claim against the Tenant in excess of the amount of comprehensive
general liability insurance which the Tenant is required to take out and keep in
force.
12.06 Increase in Landlord's Insurance Premiums
-----------------------------------------
(1) The Tenant agrees that nothing will be done, omitted to be done, kept,
used, sold or offered for sale on or from the Premises that may contravene any
of the Landlord's policies insuring any part of the Building___________
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or which will prevent the Landlord from procuring policies with companies
acceptable to the Landlord. The Tenant will pay all increases in premiums for
all risks direct damage insurance, and broad boiler insurance, including repair
or replacement and rental income coverages and such other insurance as is
customary for prudent owners of property similar to the Building__________ to
carry against loss of or damage to the Building___________ liability arising
therefrom that may be charged during the Term for insurance carried by the
Landlord insuring any part of the Building____________ resulting from the type
of merchandise sold on or from the Premises or anything done or kept thereon or
any use to which they may be put, whether or not the Landlord has consented to
them. In determining whether increased premiums are the result of the use of the
Premises a schedule issued by the organization making the insurance rate on the
Premises showing the various components of the rate will be conclusive evidence
of the several items and charges which make up the fire insurance rate on the
Premises.
(2) If the occupancy or use of the Premises causes an increase of Premium
for any of the policies insuring the Premises or any part of the
Building________ above the rate for the least hazardous type of use or occupancy
legally permitted in the Premises, the Tenant will pay the amount of the
increase. The Tenant will also pay in that event any additional premium for
rental income insurance carried by the Landlord for its protection against rent
loss through an insured risk. Bills for the increases and additional payments
may be rendered by the Landlord to the Tenant when the Landlord elects, and will
be due and payable by the Tenant when rendered, and the amount thereof will be
paid as additional rent.
12.07 Cancellation of Insurance
-------------------------
If an insurance policy upon part of the Building_______ is cancelled or
threatened by the insurer to be cancelled, or the coverage thereunder reduced or
threatened to be reduced by the insurer because of the use and occupation of the
Premises, and if the Tenant fails to remedy the condition giving rise to
cancellation, threatened cancellation, reduction or threatened reduction of
coverage within forty-eight (48) hours after notice thereof by the Landlord, the
Landlord may either:
(a) re-enter the Premises whereupon Article XVIII will apply, or
(b) enter the Premises and remedy the condition giving rise to the
cancellation or reduction or threatened cancellation or reduction, and
the Tenant will pay to the Landlord the cost thereof on demand as
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additional rent, and the Landlord will not be liable for damage or
injury caused to property of the Tenant or others located on the
Premises as a result or the entry.
12.08 Indemnification of the Landlord
-------------------------------
Except to the extent that the loss of life, personal injury or damage
to property referred to in this sentence is caused by the negligence of the
Landlord or another person for whose negligence the Landlord is responsible in
law, the Tenant will indemnify the Landlord and save it harmless from and
against any and all claims, actions, damages, liability and expenses in
connection with loss of life, personal injury or damage to property arising from
any occurrence on the Premises or the occupancy or use of the Premises or
occasioned wholly or in part by an act or omission of the Tenant, its officers
employees, agents, customers, contractors or other invitees, licensees or
concessionaires or by anyone permitted by the Tenant to be on the Premises. In
case the Landlord, without actual (as opposed to merely vicarious) fault on its
part, is made a party to litigation begun by or against the Tenant, excepting a
bona fide action by the Tenant against the Landlord, the Tenant will protect and
hold the Landlord harmless and will pay all costs, expenses and reasonable legal
fees incurred or paid by the Landlord in connection with the litigation.
12.09 Loss and Damage
---------------
Unless caused by the negligence of the Landlord or another person for
whose negligence the Landlord is responsible in law, the Landlord is not liable
for the death of or injury to the Tenant or others on the Premises, or for the
loss of or damage to property of the Tenant or others by theft or otherwise.
Without limiting the generality of the foregoing, the Landlord is not liable for
death, injury, loss or damage of or to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow or
leaks from any part of the Premises or from the pipes, appliances or plumbing
works or from the roof, street or sub-surface or from any other place or by
dampness or by other cause of any kind. The Landlord is not liable for death,
injury, loss or damage caused by other tenants or occupants or other persons on
the Premises or in any other part of the Building, resulting from construction,
alteration or repair. The Tenant agrees that there is no promise,
representation, or undertaking by or binding upon the Landlord with respect to
alterations, remodelling or decoration of or installation of equipment or
fixtures in the Premises except such, if any, as is expressly contained or
referred to in this Lease, and that unless an express provision provides for
completion of the
-20-
alteration, remodelling, decoration of installation after the Tenant's taking
occupancy of the Premises, the taking of occupancy, constitutes conclusive
evidence as against the Tenant that the alterations, remodelling or decoration
or installation of equipment of fixtures has been satisfactorily completed. All
property of the Tenant kept or stored on the Premises will be kept or stored at
the risk of the Tenant only and the Tenant will hold the Landlord harmless from
all claims arising out of damage to it, including subrogation claims by the
Tenant's insurers.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
-------------------------
13.01 Consent Required
----------------
Except to an Eligible Corporation the Tenant will not, and will not
permit a subtenant to assign this Lease in whole or in part, or sublet all or
part of the Premises, or mortgage or encumber this Lease or the Premises or part
thereof, and will not permit the occupation or use of all or any part thereof by
others other than an Eligible Corporation, without the prior written consent of
the Landlord in each case, which, consent, will not be withheld unreasonably
except that it may be withheld in any event if the permitted use of the Premises
stipulated in section 7.01 would be changed.
The consent by the Landlord to an assignment or subletting will not constitute
a waiver of its consent to a subsequent assignment or subletting. This
prohibition against assignment or subletting includes a prohibition against an
assignment or subletting includes a prohibition against an assignment or
subletting by operation of law. If this Lease is assigned, or if all or part of
the Premises is sublet or occupied by anybody other than the Tenant, in any case
without the consent of the Landlord when required, the
-21-
Landlord may collect rent from the assignee, subtenant or occupant, and apply
the net amount collected to the rent herein reserved, but no such assignment,
sublease, occupancy or collection will be considered a waiver of this covenant,
or the acceptance of the subtenant or occupant as Tenant. Despite an assignment
the Tenant remains fully liable under this Lease. An assignment of this Lease if
consented to by the Landlord will be prepared by the Landlord or its solicitors,
and all reasonable legal costs of its preparation will be paid by the Tenant.
13.02 Financing by Tenant
-------------------
Notwithstanding anything to the contrary contained in this Lease, the Landlord
agrees that the Tenant may from time to time finance its business operations and
in relation to such financing the Tenant may mortgage the Tenant's leasehold
interest herein, and such mortgage may be registered against the Lease without
the need for consent from the Landlord. The Landlord agrees that upon the
request of the Tenant the Landlord will promptly provide any person (in this
paragraph called the "Lender") proposing to take or having a charge against the
Tenant's leasehold interest with confirmation as to the status of this Lease and
the Tenant's compliance with its terms. Without limiting the Lender's rights in
law or equity, the Landlord agrees that the Lender will receive the benefit of
all notices and rights of the Tenant hereunder; that the Landlord will not
terminate the Lease in the event of default by the Tenant without first giving
the Lender a reasonable opportunity to cure the default and that the Lease will
not be terminated thereafter so long as the Lender maintains the Lease in good
standing; that the Landlord will not unreasonably withhold consent to the
assignment of the Lease or subletting of the demised premises in whole or in
part by the Lender to a third party in the event that the Lender realises on its
security taken against the Lease; and that the Landlord will enter an agreement
with the Lender upon the Lender's request in confirmation of these agreements;
PROVIDED in all cases that all reasonable expense of the Landlord incurred in
giving any confirmation, notice or agreement pursuant to this paragraph will be
paid by the Tenant or Lender.
-22-
ARTICLE XIV
CHANGE IN CONTROL
-----------------
14.01 Corporate Ownership
-------------------
If after the date of execution of this Lease shares not listed for
sale on a recognized stock exchange in Canada either of the Tenant or of an
Eligible Corporation which controls the Tenant are transferred by sale,
assignment, bequest, inheritance, operation of law of other disposition, or
issued by subscription or allotment, or cancelled or redeemed, so as to result
in a change in the effective voting or other control of the Tenant or of an
Eligible Corporation which controls the Tenant by the person or persons holding
control on the date of execution of this Lease or on the date when the Tenant
becomes a corporation, if later, or if other steps are taken to accomplish a
change of the control, the Tenant promptly will notify the Landlord in writing
of the change, which will be considered to be an assignment of this Lease to
which sections 13.01, and apply: and whether or not the Tenant notifies the
Landlord, the Landlord may terminate this Lease within sixty (60) days after the
Landlord learns of the change unless the Landlord previously had consented to
the change. The Tenant will make available to the Landlord or its lawful
representatives all corporate books and records of the Tenant and of any
Eligible Corporation which controls the Tenant for inspection at all reasonable
times, to ascertain to the extent possible whether there has been a change in
control.
ARTICLE XV
WASTE AND GOVERNMENTAL REGULATIONS
----------------------------------
15.01 Waste or Nuisance
------------------
The Tenant will not commit or permit to be committed waste upon the
Premises or a nuisance or other thing that may disturb the quiet enjoyment of
any other tenant in the Building or of any person within five hundred (500) feet
of a boundary of the Building whether or not the nuisance arises out of the use
of the Premises by the Tenant for a purpose permitted by this Lease.
15.02 Governmental and Insurance Underwriters' Regulations
----------------------------------------------------
The Tenant, at the Tenant's cost, will comply with the applicable
requirements of all municipal, provincial, federal and other governmental
authorities now in force or
-23-
which may hereafter be in force pertaining to the Tenant's occupancy or use of
the Premises and will observe any occupancy and use of the Premises all
municipal by-laws and provincial and federal statutes and regulations now in
force or which may hereafter be in force, and will comply with all regulations
made by fire insurance underwriters. The Tenant grants the Landlord the right to
enter the Premises at any time or times with as little interference as is
reasonably possible with the conduct of the Tenant's business to enable the
Landlord to comply with any municipal by-law or provincial statute now or in the
future applicable to the Premises whether or not the application of the by-law
or statute to the Premises results from an act or omission of the Landlord or
another person for whose act or omission the Landlord is responsible.
ARTICLE XVI
NOTIFICATION BY TENANT OF DAMAGE
--------------------------------
16.01 Notification by Tenant of Damages
---------------------------------
Tenant will notify the Landlord immediately that the Tenant becomes aware
of any fire or accident in the Premises or of any damage to or malfunctioning of
the heating, electrical, plumbing, mechanical or ventilating system in the
Building or any damage to the foundations, structure, roof, exterior walls or
supporting walls of the Building.
ARTICLE XVII
SIGNS, FIXTURES AND ALTERATIONS
-------------------------------
17.01 Installation and Changes by Tenant
----------------------------------
All fixtures installed by the Tenant will be of first class quality.
The Tenant will not make or cause to be made any change, decoration, addition or
improvement or cut or drill into, nail or otherwise attach, secure or
-24-
install any trade fixture, exterior sign, floor covering, interior or exterior
lighting, or mechanical or electrical system or fixture, or plumbing fixture,
shade or awning to any part of the Premises or to the exterior of the Premises
including the store front or hang from or affix anything to the ceiling without
first obtaining the Landlord's written approval. The Tenant will present to the
Landlord plans and specifications for the work at the time approval is sought
and the work will be done by contractors or other workers or tradesmen approved
by the Landlord and in good and workmanlike manner with first class materials.
The Tenant will not make any change to the structural elements of the Premises.
17.02 Removal of Installations and Restoration by Tenant
--------------------------------------------------
All alterations, decorations, additions and improvements made by the
Tenant or made by the Landlord on the Tenant's behalf become on affixation the
property of the Landlord. No alteration, decoration, addition or improvement
will be removed from the Premises before the end of the Term without prior
consent in writing from the Landlord. Upon termination of this Lease the
alterations, decorations, additions and fixed improvements excepting Tenant's
trade fixtures will remain in the property of the Landlord as part the
reversion, but the Tenant will remove all or some of the alterations,
decorations, additions and fixed improvements if and to the extent requested by
the Landlord, and restore the Premises as provided in Section 9.02(b). Every
installation, removal or restoration by the Tenant of its trade fixtures will be
done at the sole expense of the Tenant and the Tenant promptly will make good or
reimburse the Landlord the cost of making good all damage to structural elements
relating to the Premises or to the heating, ventilating, air conditioning,
plumbing, electrical or other mechanical systems in the Building caused thereby.
Nothing herein prevents the Tenant from painting over, removing, or covering up
its trademarks.
17.03 Not to Overload Floors
----------------------
The Tenant will not bring upon the Premises any machinery, equipment
or things that by reason of its weight, size or use in the opinion of the
Architect might damage the Premises and will not at any time overload the floors
of the Premises. If overloading occurs and damage ensues the Tenant forthwith
will repair the damage or pay to the Landlord the cost of making it good.
17.04 Tenant Discharge All Liens
--------------------------
The Tenant promptly will pay all its contractors and materialmen and
do all things necessary to minimize the possibility of a lien attaching to the
Premises or to any other part of the Building and should a claim for
-24a-
lien be registered, the Tenant will cause it to be discharged at the Tenant's
expense within seven (7) days after it is brought to the attention of the
Tenant.
17.05 Tenant's Signs, Awnings and Canopies
------------------------------------
The Tenant will not place or permit to be placed or maintained on
the roof or on any exterior or interior door, wall or window of the Premises any
sign, awning, canopy, decoration, lettering, advertising matter or other thing
of any kind and will not place or maintain any decoration, lettering or
advertising matter on the glass of any window or door of the Premises without
first obtaining the Landlord's written consent, but this sentence has no
application to signs, awnings, canopies, decorations, lettering, advertising
matter or other things to be placed inside the Premises if of a reasonable
standard of acceptability to the Landlord and not visible from outside the
Premises.
-25-
ARTICLE XVIII
DEFAULT OF TENANT
-----------------
18.01 Right to Re-enter
-----------------
If and whenever the rent hereby reserved or any part thereof shall not
be paid on the day appointed for payment thereof, whether lawfully demanded or
not, or in case of breach or non-observance or non-performance of any of the
covenants, agreements, provisos and conditions on the part of the Tenant to be
kept, observed or performed, or if re-entry is permitted under other terms of
this Lease, the Landlord in addition to any other right or remedy it may have
will have the right of immediate re-entry and may remove all persons and
property from the Premises and the property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account of the Tenant,
all without service of notice for resort to legal process and without being
considered guilty of trespass or becoming liable for loss or damage occasioned
thereby.
18.02 Bankruptcy of Tenant
--------------------
If
(a) any of the goods and chattels of the Tenant on the Premises at any
time during the Term are seized or taken in execution or attachment by
a creditor of the Tenant,
(b) the Tenant or a guarantor or indemnifier of this Lease makes an
assignment for the benefit of creditors or a bulk sale from the
Premises other than a bulk sale to an assignee or sublessee pursuant
to an assignment or sublease which under section 13.01 was consented
to or did not require a consent,
(c) a receiver-manager is appointed to control the conduct of the business
on or from the Premises,
(d) the Tenant becomes bankrupt or insolvent or takes the benefit of an
Act now or hereafter in force for bankrupt or insolvent debtors,
(e) an order is made for the winding-up of the Tenant.
-26-
(f) the Premises, without the written consent of the Landlord, become and
remain vacant for a period of ten (10) days or are used by any other
persons than those entitled to use them under the terms of this Lease,
(g) the Tenant, without the written consent of the Landlord, abandons or
attempts to abandon the Premises or sells or disposes of its goods or
chattels or removes any of them from the Premises so that there would
not in the event of abandonment, sale or disposal be sufficient goods
on the Premises subject to distress to satisfy all rentals due or
accruing due hereunder.
the then current month's rent and the next ensuing three (3) months' rent
immediately will become due and payable as accelerated rent and the Landlord may
re-enter and take possession of the Premises as though the Tenant or the
servants of the Tenant or any other occupant of the Premises were holding over
after the expiration of the Term and the Lease, at the option of the Landlord
forthwith will become forfeited and determined. In every one of the cases above
mentioned the accelerated rent may be recovered by the Landlord in the same
manner as rent reserved and in arrears and the option will be considered to have
been exercised if the Landlord or its agents notice to that effect to the
Tenant.
18.03 Landlord may Perform Tenant's Obligations
-----------------------------------------
If the Tenant fails to perform an obligation of the Tenant under this
Lease the Landlord may perform the obligation and for that purpose may enter
upon the Premises on not less than five (5) days' prior notice to the Tenant or
without notice in the case of an emergency and do such things upon or in respect
of the Premises as the Landlord considers necessary. The Tenant will pay as
additional rent all expenses incurred by or on behalf of the Landlord under this
section upon presentation of a xxxx therefore. The Landlord will not be liable
to the Tenant for loss or damage resulting from such action by the Landlord
unless caused by the negligence of the Landlord or another person for whose
negligence the Landlord is responsible in law.
18.04 Right to Relet
--------------
If the Landlord re-enters, as herein provided, it may either
terminate this Lease or it may from time to time without terminating the
Tenant's obligations under this Lease, make alterations and repairs considered
by the Landlord necessary to facilitate a reletting, and relet the
-27-
Premises or any part thereof as agent of the Tenant for such term or terms and
at such rental or rentals and upon such other terms and conditions as the
Landlord in its reasonable discretion considers advisable. Upon each reletting
all rent and other monies received by the Landlord from the reletting will be
applied, first to the payment of indebtedness other than rent due hereunder from
the Tenant to the Landlord, secondly to the payment of costs and expenses of the
reletting including brokerage fees and solicitor's fees and cost of the
alterations and repairs, and third to the payment of rent due and unpaid
hereunder. The residue, if any, will be held by the Landlord and applied in
payment of future rent as it becomes due and payable. If the rent received from
the reletting during a month is less than the rent to be paid during that month
by the Tenant, the Tenant will pay the deficiency to the Landlord. The
deficiency will be calculated and paid monthly. No re-entry by the Landlord will
be construed as an election on its part to terminate this lease unless a written
notice of that intention is given to the Tenant. Despite a reletting without
termination, the Landlord may elect at any time to terminate this Lease for a
previous breach. If the Landlord terminates this Lease for any breach, in
addition to other remedies it may recover from the Tenant all damages it incurs
by reason of the breach including the cost of recovering the Premises,
reasonable legal fees and the worth at the time of termination of the excess, if
any, of the amount of rent and charges to rent reserved in this Lease for the
remainder of the Term over then reasonable rental value of the Premises for the
remainder of the Term, all of which amounts immediately will be due and payable
by the Tenant to the Landlord. In any of the events referred to in Sections
18.01, 18.02 and 18.03, in addition to all other rights, including the rights
referred to in this section and Section 18.01, the full amount of the current
month's minimum rent, monthly contributions towards taxes, insurance premiums,
the Tenant's proportionate Share of the Operating Costs and all other payments
required to be made monthly and the next three (3) months minimum rent
immediately will become due and payable, and the Landlord may immediately
distrain for it, together with arrears then unpaid.
18.05 Legal Expenses
--------------
If the Landlord brings an action against the Tenant arising from an
alleged breach of a covenant or condition in the Lease to be complied with by
the Tenant and the court
-28-
establishes that the Tenant is in breach of the covenant or condition, the
Tenant will pay to Landlord all expenses incurred by the Landlord in the action
including reasonable legal fees.
18.06 Interest on Overdue Monies
--------------------------
All overdue monies payable to the Landlord by the Tenant on any
account whatsoever shall bear interest at the rate of ten (10%) per cent per
annum.
18.07 Waiver of Distress
------------------
The Tenant covenants with the Landlord that in consideration of the
making of this Lease, none of the goods and chattels of the Tenant on the
Premises is exempt from levy by distress for rent in arrears, and that upon a
claim being made for exemption by the Tenant or on distress being made by the
Landlord, this section may be pleaded as an estoppel against the Tenant in an
action brought to test the right to levy upon goods named as exempted.
ARTICLE XIX
REMEDIES OF LANDLORD AND WAIVER
-------------------------------
19.01 Remedies of Landlord Cumulative
-------------------------------
No exercise of a specific right or remedy by the Landlord or by the
Tenant precludes it from or prejudices it in exercising another right or
pursuing another remedy or maintaining an action to which it may otherwise be
entitled either at law or in equity.
19.02 Waiver
------
The waiver by the Landlord or the Tenant of a breach of a term,
covenant or condition of this Lease will not be considered to be a waiver of a
subsequent breach of the term, covenant or condition or another term, covenant
or condition. The subsequent acceptance of rent by the Landlord will not be
considered to be a waiver of a preceding breach by the Tenant of a term,
covenant or condition of this Lease, regardless of the Landlord's knowledge of
the preceding breach at the time of acceptance of the rent. No covenant, term or
condition of this Lease will be considered to have been waived by the Landlord
or by the Tenant unless the waiver is in writing signed by the Landlord or by
the Tenant, as the case may be.
-29-
ARTICLE XX
ACCESS BY LANDLORD
------------------
20.01 Right of Entry
--------------
The Landlord and its agents may enter the Premises at all reasonable
times to examine them and show them to a prospective purchaser, lessee or
mortgagee. The Landlord may make alterations, additions and adjustments to and
changes of location of the pipes, conduits, wiring, ducts and other
installations of any kind in the Premises where necessary to serve another part
of the Building, and the Landlord may take all material required therefor on to
the Premises without constituting an eviction of the Tenant in whole or in part,
and the rent reserved will not xxxxx while the alterations, additions or changes
of location are being made by reason of loss or interruption of the business of
the Tenant, or otherwise, and the Landlord will not be liable for damage to
property of the Tenant or of others located on the Premises as a result of an
entry unless caused by the negligence of the Landlord or another person for
whose negligence the Landlord is responsible in law. During the six (6) months
prior to the expiration of the Term the Landlord may place upon the Premises the
usual notice "For Rent" which the Tenant will permit to remain without
interference. If the Tenant is not present to open and permit entry into the
Premises when for proper reason entry is necessary or permissible, the Landlord
or its agents may enter by a master key or way forcibly enter without rendering
the Landlord or its agents liable therefor and without affecting the Lease.
Nothing in this section, however, imposes upon the Landlord an obligation,
responsibility or liability for the care, maintenance or repair of the Premises
or any part thereof except as specifically provided in this Lease.
-30-
ARTICLE XXI
ASSIGNMENT BY LANDLORD
----------------------
21.01 Assignment
----------
If the Landlord sells an interest in the Building or in this Lease, to
the extent that the purchaser or assignee is responsible for compliance with the
covenants and obligations of the Landlord hereunder, the Landlord without
further written agreement will be relieved of liability under its covenants and
obligations.
ARTICLE XXII
RULES AND REGULATIONS
---------------------
22.01 Landlord May Make
-----------------
The Landlord from time to time may establish, modify and enforce
reasonable rules and regulations regarding the use and occupancy of the Premises
set aside by the Landlord for leasing to tenants of the Building. All rules and
regulations and modifications whether made under this section or section 8.02
become a part of this Lease and bind the Tenant. The Tenant will comply with the
rules and regulations and modifications. Notice of the rules and regulations and
modifications, if any, will be given to the Tenant by the Landlord. No rule or
regulation or modification will contradict a provision of this Lease.
ARTICLE XXIII
LANDLORD'S COVENANTS AND OBLIGATIONS
------------------------------------
23.01 Taxes
-----
The Landlord will pay all real property taxes (including local
improvement rates) that may be assessed by a lawful authority against the
Building, _______________________, subject to sections 3.05 and 5.01.
23.02 Quiet Enjoyment
---------------
Subject to the provisions of this Lease the Landlord covenants with
the Tenant for quiet enjoyment.
-31-
ARTICLE XXIV
OVERHOLDING
-----------
24.01 No Tacit Renewal
----------------
If the Tenant remains in possession of the Premises after the end of
the Term and without the execution and delivery of a new lease or a written
renewal or extension of this Lease, there is no tacit or other renewal of this
Lease, and the Tenant will be considered to be occupying the Premises as a
Tenant from month to month at a monthly rental payable in advance on the first
day of each month equal to the sum of:
(a) One and a half times the monthly installment of fixed minimum rent
payable for the last month of the Term, and
(b) one-sixth (1/6th) of the percentage rent, if any, for the Lease Year
immediately preceding the last Lease Year of this Lease, and
(c) one-sixth (1/6th) of the amount of additional rent and charges payable
by the Tenant for the year immediately preceding the last Lease Year
of this Lease.
and otherwise upon the terms and conditions set forth in this Lease, so far as
applicable.
ARTICLE XXV
OPTION TO RENEW
---------------
25.01 Option to Renew
---------------
Provided that:
(a) the Tenant pays the rental and other sums payable hereunder and
performs each and every one of the covenants, provisos and agreements
herein contained on the part of the Tenant to be paid and performed
punctually and in accordance with the provisions of this Lease; and
(b) the Tenant has not assigned this Lease or sublet or permitted a change
in occupancy of the Premises unless specifically permitted or consent
to under section 13.01; and
(c) there has been no change in ownership of the majority of the capital
stock of the Tenant unless specifically permitted or consented to
under
-32-
section 14.01
then the Tenant shall have the option of renewing this Lease by notice in
writing given to the Landlord not later than six (6) months nor earlier than
eight (8) months prior to the expiry of the Term for an additional term of ONE
(1) years on the same terms and conditions set forth in this Lease, save and
except:
(i) that any renewals of the Lease shall be limited to one (1) years each
and shall limited to one (1) in number; and
(ii) the minimum rental to be paid during the renewal term shall be
$5,650.00 per month.
OBLIGATIONS OF INDEMNITOR
-------------------------
26.01 The Indemnitor, as a separate and distinct agreement and in
consideration of the Landlord entering into this Lease with the Tenant and other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), covenants and agrees with the Landlord as follows:
(a) this indemnity is absolute and unconditional;
(b) the Tenant will duly keep, observe and perform all of its covenants
and agreements under this Lease (including the payment of rent,
additional rent and all other amounts from time to time payable under
this Lease);
(c) if any default is made by the Tenant under this Lease, the Indemnitor
shall on demand of the Landlord forthwith remedy such default;
-33-
(d) the Landlord shall not be bound or required to proceed against the
Tenant or any other obligated person or to have recourse to or exhaust
any security from time to time held by it for the performance of such
covenants or agreements or to pursue any other remedy whatsoever which
may be available to it, before proceeding against the Indemnitor.
(e) the Indemnitor shall indemnify and save harmless the Landlord with
respect to all loss, costs, expenses, claims, liabilities and damages
that may be suffered or incurred by the Landlord by reason of or
relating to, directly or indirectly, any default of the Tenant under
this Lease;
(f) the Indemnitor is jointly and severally bound with the Tenant to the
Landlord to keep, observe and perform all covenants and agreements of
the Tenant under this Lease and the Indemnitor expressly waives any
benefits of division and discussion which it may have;
(g) the obligations of the Indemnitor hereunder shall be in no way
released, discharged, reduced or otherwise affected by;
(i) modifications, releases or discharges granted to the Tenant in
respect of its obligation to keep, observe and perform its
covenants and agreements hereunder;
(ii) any neglect, delay or forbearance of the Landlord in demanding,
requiring or enforcing the keeping, observance or performance
by the Tenant of any of its covenants or agreements under this
Lease or by the Indemnitor of any of its obligations hereunder;
(iii) granting any extensions of time, waivers or indulgences;
(iv) any assignment or subleasing by the Tenant or any trustee in
bankruptcy, receiver or other successor or any consent of the
Landlord to any assignment or subleasing;
(v) bankruptcy, insolvency or dissolution of the Tenant;
(vi) any other event or occurrence which would have the effect at
law of terminating or rendering unenforceable any covenants or
-34-
agreements of the Tenant;
(vii) any agreements or other dealings between the Landlord and the
Tenant having the effect of amending or altering the Lease or
the obligations of the Tenant hereunder:
(viii) any want of notice by the Landlord to the Indemnitor of any
default of the Tenant;
(ix) any re-entry into the Premises or termination of this Lease;
or
(x) any other matter, thing, act or omission of the Landlord
whatsoever;
(h) the obligations of the Indemnitor hereunder shall extend to the Term
and to any overholding by the Tenant thereafter and to any renewal or
extension of the Term;
(i) the Indemnitor will submit to the jurisdiction of the governing laws
of this Lease in any action or proceeding brought by the Landlord to
enforce its rights hereunder;
(j) no proceeding hereunder and no recovery made as a result thereof will
be a bar or defence to any further proceeding hereunder;
(k) the Indemnitor waives any right to receive notice of any default of
the Tenant; and
(l) the Indemnitor is bound by all the terms and provisions of the Lease.
ARTICLE XXVII
MISCELLANEOUS
-------------
27.01 Accord and Satisfaction
-----------------------
No payment by the Tenant or receipt by the Landlord of a lesser amount
than rent herein stipulated will be considered to be other than on account of
the earliest stipulated rent, nor will an endorsement or statement on a cheque
or in a letter accompanying a cheque or payment as rent be considered to be an
accord or satisfaction, and the Landlord may accept a cheque or payment without
prejudice to the Landlord's right to recover the balance of the rent or pursue
any other remedy.
-35-
27.02 No Partnership
--------------
The Landlord does not in any way or for any purpose become a partner
of or joint venturer or a member of a joint enterprise with the Tenant. The
provisions of this Lease relating to percentage rent are solely to provide a
method of computing rent and neither the method of computing rent nor any other
provision of this Lease creates a relationship between the parties other than
that of Landlord of Tenant.
27.03 Unavoidable Delay
-----------------
If there is an Unavoidable Delay in the performance of an act or
compliance with a covenant or condition, performance or compliance during the
period of the Unavoidable Delay will be excused and the period for the
performance or compliance will be extended for a period equal to the period of
the Unavoidable Delay.
27.04 Partial Invalidity
------------------
If a term, covenant or condition of this Lease or the application
thereof to any person or circumstances is held to any extent invalid or
unenforceable, the remainder of this Lease or the application of the term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or enforceable will not be affected.
27.05 Joint and Several Liability
---------------------------
If two or more individuals, corporations, partnerships or other
business associations (or a combination of two or more) are the Tenant or the
Indemnitor, the liability of each individual, corporation, partnership or other
business association to pay rent and perform all other obligations hereunder is
joint and several. If the Tenant or the Indemnitor is a partnership or other
business association the members of which are by virtue of statute or general
law subject to personal liability, the liability of each member is joint and
several.
27.06 Registration
------------
The Tenant may register this Lease and the Landlord shall be obligated
to deliver this Lease in registrable form.
27.07 Notice
------
A notice, demand, request, statement or other evidence required or
permitted to be given under this Lease must be written and will be sufficiently
given if mailed in
-36-
Canada by registered mail to the party to whom it is directed at its address as
hereinbefore first set out or if delivered to such address
A notice, demand, request, statement or other instrument mailed as
aforesaid will be considered to have been given to the party to which it is
addressed on the third business day following the date of mailing. In the event
of interruptions in the normal postal service a notice will be deemed received
when actually received by the party whom it is addressed.
A party at any time may give notice to any other party of a change of
its address, and after the giving of the notice the address therein specified
will be considered be the address of the party which gave the notice.
27.08 Amendment in Writing
--------------------
No alteration, amendment, change or addition to is Lease will bind the
Landlord or the Tenant unless in writing and signed by the parties hereto.
27.09 Successors and Assigns
----------------------
This Lease binds and benefits the parties and their respective heirs,
executors, administrators, successors and assigns. No rights, however, benefit
an assignee of the Tenant unless the assignment was consented to by the Landlord
pursuant to Section 13.01.
27.10 Security Deposit
----------------
The Landlord acknowledges receipt of $1,900.00 to be held by the
Landlord as a deposit without liability for the payment of interest thereon, as
security for the payment of rent and performance of the Tenant's obligations
under this Lease. If at any time Rent or any other amount payable by the Tenant
is overdue and unpaid or the Tenant fails to perform any of its obligations
under this Lease, the Landlord, either before or after terminating this Lease,
may apply the whole or any part of the deposit to the payment of such Rent or to
compensate the Landlord for any loss or expense incurred by the Landlord and
such application will be without prejudice to the Landlord's right to pursue
its remedies. If the whole or any part of the deposit is applied by the
Landlord, the Tenant will pay to the Landlord forthwith a sufficient amount to
restore the deposit to the amount specified above, and the Tenant's failure to
do so within ten (10) days after demand will constitute a breach of this Lease.
If the Tenant promptly pays all Rent as it falls due and performs all of its
obligations under this Lease, the Landlord will repay the deposit or any balance
held by the Landlord to the Tenant within thirty (30) days
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after termination of this Lease. The Landlord may deliver and assign the deposit
to any purchaser of the Landlord's interest in the Premises and thereupon the
Landlord will be discharged from any further liabilities with respect to such
deposit.
IN WITNESS WHEREOF the parties have executed this lease the day and year first
above written.
WESTERN IMMO HOLDINGS Inc.
per [Name illegible] [Name illegible]
----------------------- ------------------------
Authorised signatory Witness
WESTBEACH SNOWBOARD
CANADA LTD.
per [Name illegible] [Name illegible]
----------------------- ------------------------
Authorised Signatory Witness
-39-
Schedule A
Schedule to a lease between WESTERN IMMO HOLDINGS LTD. and WESTBEACH SNOWBOARD
CANADA LTD dated as of April 1, 1994.
DESCRIPTION OF LAND
LEGAL DESCRIPTION: Xxxx 0 & 0, Xxxxx 000
Xxxxxxxx Xxx 526, Plans 590 and 3863
CIVIC DESCRIPTION: 0000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, X.X.
END OF DOCUMENT
LAND TITLE ACT
FORM C
(section 219.9))
Province of British Columbia
GENERAL DOCUMENT Page 1 of 5
================================================================================
1. APPLICATION:
________________________________________________________________________________
2. PARCEL IDENTIFIER(S) AND LEGAL DESCRIPTION(S) OF LAND:
P.I.D. LEGAL DESCRIPTION
000-000-000 Xxx 0 xxxxxx xxxx xx xxxx 0000 Xxxxx
000 XX 526 Plan 590
000-000-000 Lot 8 except part in plan 3863 Block
248 DL 526 Plan 590
________________________________________________________________________________
3. NATURE OF INTEREST: DOCUMENT REFERENCE PERSON ENTITLED
Description (page and paragraph) TO INTEREST
Modification of Lease Entire document Transferee
No. BH205406
________________________________________________________________________________
4. TERMS: (Part 2 of this instrument consists of (select one only):
a) Filed standard charge terms [_] DF No.
b) Express Charge Terms [X] Annexed as Part 2
c) Release [_] There is no Part 2 of this instrument
A selection of (a) includes any additional or modified terms referred to in Item
10 or in a schedule annexed to this mortgage.
________________________________________________________________________________
5. TRANSFEROR(S)
WESTERN IMMO HOLDINGS INC. (Incorp. No. 337343)
--------------------------
________________________________________________________________________________
6. TRANSFEREE(S) (including occupation, postal address and postal code)
WESTBEACH SNOWBOARD CANADA LTD., (Registration No. A-21970)
-------------------------------
0000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, X.X. X0X 1MI
________________________________________________________________________________
7. ADDITIONAL OR MODIFIED TERMS:
Nil
________________________________________________________________________________
Page 2 of 5
8. EXECUTION(S): This instrument creates, assigns, modifies enlarges,
discharges or governs the priority of the interest(s) described in item 3 and
the Transferor(s) and every other signatory agree to be bound by this
instrument, and acknowledge(s) receipt of a true copy of the filed standard
charge terms, if any.
Officer(s) signature Execution date Party(ies) signature
Y M D WESTERN IMMO HOLDINGS INC.
1997 10 17 by its authorised signatory
/s/ Xxxxxxx Xxxxx /s/ Xxxx Xxxxx
--------------------------- -----------------------------
XXXXXXX XXXXX XXXX XXXXX
Bassister & Solicitor
000- 0000 XXXXXXXX XXXXXX
XXXXXXXXX, X.X. X0X 0X0
Tel: 000-0000 Fax: 000-0000
As to the Signature-of
the Transferor
WESTBEACH SNOWBOARD CANADA LTD.
by its authorised
signatures)
/s/ Xxxxx Xxxx /s/ Xxxx Xxxxxx
-------------------------- -----------------------------
Name XXXXX XXXX Name XXXX XXXXXX
Address SECRETARY
/s/ Xxxxx Xxxxxx
----------------------------
Name XXXXX XXXXXX
As to the signature of
the Transferor
OFFICER CERTIFICATION:
Your signature constitutes a representation that you are a solicitor, notary
public or other person authorized by the Evidence Act R.S.B.C. 1979, c.116, to
take affidavits for use in British Columbia and certifies the matters set out in
Part 5 of the Land Title Act as they pertain to the execution of this
instrument.
Page 3 of 5
"TERMS OF INSTRUMENT - PART 2"
MODIFICATION AGREEMENT
THIS MODIFICATION OF LEASE dated for reference and made as of July 1, 1997
BETWEEN:
WESTERN IMMO HOLDINGS INC.
--------------------------
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, X.X., X0X 0X0
("the Landlord")
AND:
WESTBEACH SNOWBOARD CANADA INC.
-------------------------------
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, X.X., X0X 0X0
("the Tenant")
WHEREAS:
A. By a lease ("the Lease") dated April 1, 1994 between the Landlord and the
Tenant, which was registered in the Land Titles Office at New Westminster on
June 1, 1994 under registration number BH205406, the Tenant leased certain
premises ("the Premises") from the Landlord located at 0000 Xxxx 0xx Xxxxxx,
Xxxxxxxxx, X.X. more particularly described in Paragraph 2 of Form C hereof;
B. The Lease was for a term of 6 years, with an option to renew for an
additional one (1) year;
C. The Landlord and Tenant wish to modify the Lease by extending the term of
the Lease and increasing the renewal term pursuant to option to renew;
NOW THEREFORE in consideration of the premises, rents, covenants agreements and
conditions contained herein, the parties agree as follows:
1. Paragraph 3.02 of the Lease is deleted and the following substituted
therefor:
"3.02 The Term of this Lease is for 10 years commencing on the 1st day of
April 1994 and terminating on the 31st day of March, 2005."
4 of 5
2. Paragraph 3.02 of the Lease is deleted and the following substituted
therefor:
"3.03 The Tenant shall pay to the Landlord, at the office of the Landlord or at
such other place in Canada as the Landlord designates from time to time in
writing, in lawful money of Canada and without deduction or set-off, on the
first day of each month, monthly in advance, the following fixed minimum rent:
April 1, 1994 to March 31, 1996 - $4,166.00 each consecutive month
April 1, 1996 to March 31, 1997 - $4,666.00 each consecutive month
April 1, 1997 to March 31, 1999 - $6,001.00 each consecutive month
April 1, 1999 to March 31, 2000 - $6,301.00 each consecutive month
April 1, 2000 to March 31, 2001 - $6,616.00 each consecutive month
April 1, 2001 to March 31, 2002 - $6,947.00 each consecutive month
April 1, 2002 to March 31, 2003 - $7,294.00 each consecutive month
April 1, 2003 to March 31, 2004 - $7,659.00 each consecutive month
April 1, 2004 to March 31, 2005 - $8,042.00 each consecutive month
3. Paragraph 25.01 of the Lease is deleted and the following substituted
therefor:
25.01 Option to Renew
---------------
Provided that:
(a) the Tenant pays the rental and other sums payable hereunder and
performs each and every one of the covenants, provisos and
agreements herein contained on the part of the Tenant to be paid and
performed punctually and in accordance with the provisions of this
Lease; and
(b) the Tenant has not assigned this Leased or sublet or permitted a
change in occupancy of the Premises unless specifically permitted or
consented to under section 13.01; and
(c) there has been no change in ownership of the majority of the capital
stock of the Tenant unless specifically permitted or consented to
under section 14.01;
then the Tenant shall have the option of renewing this Lease by notice in
writing given to the Landlord not later than six (6) months nor earlier than
eight (8) months prior to the expiry of the Term for an additional term of FIVE
(5) years on the same terms and conditions set forth in this Lease, save and
except:
(i) there shall be no further right of renewal, unless agreed to by the
Landlord; and
5 of 5
(ii) the minimum rental to be paid during the renewal term shall not be
less than the minimum rent paid during the last twelve (12) month
period of the preceding term and shall be settled by agreement
between the Landlord and the Tenant, or if they fail to agree within
three (3) months prior to the expiration of the existing Term, then
the minimum rental shall be the then fair market rental value for
space of comparable size, quality and location to that of the
Premises, with particular regard to its actual use, an not its zoned
use, as determined by an arbitrator appointed under the Commercial
Arbitration Act, S.B.C 1986 (as such legislation may be amended from
time to time), whose decision shall be final an binding upon the
Landlord and Tenant. The cost of such arbitration shall be borne by
the Landlord and Tenant equally.
4. Except as hereby expressly amended, the Lease are hereby ratified and
confirmed by the parties.
END OF DOCUMENT
