EXHIBIT 10.27
INDENTURE OF LEASE MADE AS OF THE 1st DAY OF APRIL, 1996.
BETWEEN
HAYMUR ENTERPRISES LTD.
AND
ALEXANDER XXXXX XXXXXXXX
AS LESSORS
AND
DATAWAVE VENDING (CANADA) INC.
AS LESSEE
LEASE AGREEMENT FOR:
000 XXXX 0XX XXXXXX, XXXXXXXXX, X.X.
THIS INDENTURE made as of the 1st day of April, 1996
BETWEEN: HAYMUR ENTERPRISES LTD. and ALEXANDER XXXXX XXXXXXXX Businessmen, both
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care of Xxxxxx, Meakin Management Company Ltd., #200-1682 Xxxx 0xx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter collectively called the
Lessor")
OF THE FIRST PART
AND: DATAWAVE VENDING (CANADA) INC, a company having an office at #000 -000
-----------------------------
Xxxxxx Xx., Xxxxxxxxx, X.X. X0X 0X0, and duly incorporated under the
laws of the Province of British Columbia,
(hereinafter called the "Lessee")
OF THE SECOND PART
1.00 DEMISE AND LEASE
WITNESSETH that in consideration of the rents, covenants, conditions and
agreements hereinafter reserved and contained on the part of the Lessee to be
paid, observed and performed, the Lessor does demise and lease unto the Lessee
all and singular those certain lands and premises that are described in Schedule
"A" attached hereto (hereinafter called the "Leased Premises") and comprising
all of the lands and buildings with a total floor area of approximately 8,916
square feet which figure includes the office and warehouse premises occupied by
the Lessee and all of the common building area, all situate at 000 Xxxx 0xx
Xxxxxx, Xxxxxxxxx, B.C., and being part of those lands and premises legally
described as:
PARCEL IDENTIFIER 000-000-000
Xxxx X, X xxx X
Xxxxx 00
Xxxxxxxx Xxx 200A
Plan 1191
2.00 TERM
The term of this lease is for a period of Five (5) years and shall commence on
the 1st day of April, 1996 and expire on the 31 st day of March, 2001 subject
to earlier termination as herein provided.
3.00 RENT
As rent for the leased premises, the Lessee covenants and agrees to pay to the
Lessor in advance in
lawful money of Canada:
(a) (i) For the first year of the Lease, the annual sum of $64,641.00 which is
the equivalent of approximately $7.25 per square foot of Leased
Premises without deduction, set-off or abatement and being the sum of
$5,386.75 per month; and
(ii) For the second year of the Lease, the annual sum of $66,870.00 which
is the equivalent of approximately $7.50 per square foot of Leased
Premises without deduction, set-off or abatement and being the sum of
$5,572.50 per month; and
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(iii) For the third year of the Lease, the annual sum of $69,099.00 which
is the equivalent of approximately $7.75 per square foot of Leased
Premises without deduction, set-off or abatement and being the sum
of $5,758.25 per month; and
(iv) For the fourth year of the Lease, the annual sum of $73,557.00 which
is the equivalent of approximately $8.25 per square foot of Leased
Premises without deduction, set-off or abatement and being the sum
of $6,129.75 per month; and
(v) For the fifth year of the Lease, the annual sum of $75,786.00 which
is the equivalent of approximately $8.50 per square foot of Leased
Premises without deduction, set-off or abatement and being the sum
of $6,315.50 per month; and
(vi) The Lessor agrees to xxxxx the rent above which applies to the month
of April, 1996.
(b) Together with, in month by month installments beginning April 1, 1996 a
pro-rata share of Operating Expenses (hereinafter called "Additional Rent"). For
purposes of this Lease "Pro-rata Share" shall mean the the gross leaseable area
of the Leased Premises (8,916 square feet) divided by the total gross leaseable
building area of 8,916 square feet. The pro-rata factor to be applied to
operating costs for the calculation of Additional Rent applicable to the Leased
Premises is therefore 100.00%
The amount of the Additional Rent which the Lessee is to pay monthly shall be
reasonably estimated by the Lessor in advance and the Lessor shall furnish to
the Lessee an estimate of the Additional Rent.
At least annually the Lessor shall furnish the Lessee with a statement showing
the actual amount of the Additional Rent and the Lessor and the Lessee covenant
and agree each with the other that if an overpayment of the Additional Rent has
been made by the Lessee, the Lessor shall credit the account of the Lessee, and
if there is no ensuing period, such amount shall be paid by the Lessor to the
Lessee, and if an amount remains owing to the Lessor in respect of Additional
Rent, the Lessee shall forthwith pay such amount to the Lessor.
For the purposes of this lease, "Operating Expenses" shall mean the total,
without duplication, of all costs and expenses incurred by the Lessor in the
operation and management of the leased premises and the improvements, sprinkler,
fire alarm, heating and air conditioning systems thereon, and for repairing,
maintaining and replacements of said systems, or any of them, such as are in
keeping with maintaining the standard of a first class industrial complex,
including, without limitation, all repairs and replacements required for such
maintenance, the costs of providing electricity, gas, fuel and other services
and utilities not otherwise paid, payable or to be provided by the Lessee as
hereinafter mentioned, the costs of maintaining roadways and parking areas,
loading and unloading areas, snow removal, landscape maintenance, refuse removal
and other costs in connection with the maintenance of outside areas and
facilities, awnings, sprinkler protection, security protection, service
contracts with independent contractors and all other expenses paid or payable by
the Lessor in connection with the operation of the Lands and the Leased
Premises, but shall not include interest on debt, capital retirement of debt,
costs allocated to capital account according to generally accepted accounting
principles as determined by the Lessor's accountants, any amounts directly
chargeable by the Lessor to or payable by the Lessee as in this Lease
hereinafter otherwise provided herein, or any repairs, replacements, maintenance
amounts, costs, expenses or outgoings attributable to the Leased Premises for
which the Lessee is responsible as in this lease hereinafter otherwise provided,
and shall include a reasonable management fee not to exceed Five (5%) of the
aggregate annual rent payable by all of the lessees of the Lands of the Lessor.
(c) The total amortization of capital costs and major repairs (on a straight
line basis over the useful life or such other period as reasonably determined by
the Lessor), and the interest on the unamortized capital at a rate equivalent to
the lending rate actually charged or chargeable by the Lessor's bankers from
time to time on commercial demand loans made to the Lessor (and if different
loans are at a different rates of interest, then the lowest of same), of the
cost of all furniture, machinery, equipment, replacements, modifications,
additions and improvements to the Building which, in the Lessor's reasonable
opinion, have
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an estimated useful life longer than one (1) fiscal year and the cost whereof
has not previously been charged to the Lessee.
If requested by the Lessee, the Lessor shall provide a statement of Operating
Costs certified by the Lessor's accountants but the cost of such certification
shall be to the account of the Lessee. At the request of the Lessee, the Lessor
will make available its records of Operating Costs for inspection by the Lessee
during normal business hours of the Lessor.
4.00 USE OF PREMISES
The Leased Premises are to be used for development and assembly in connection
with manufacturing of electronic equipment. The Lessee shall not use the Leased
Premises for any other purpose without the Lessor's approval in writing first
obtained. All personal property and leasehold improvements on or at the Leased
Premises shall be at the risk of the Lessee.
5.00 TAXES AND ASSESSMENTS
(a) The Lessee agrees that it will, from and including the commencement date pay
to the Lessor a pro-rata share of all taxes, imposts, rates, duties and
assessments whatsoever, whether municipal, parliamentary or otherwise, and
whether general, school, local improvement or other purpose charged, rated
assessed or levied by the City of Vancouver or other lawful government authority
upon or against the Leased Premises, including without limiting the generality
of the foregoing, the building thereon and the improvements thereto: PROVIDED,
however, that where any such charges are extraordinary local improvement or
impost charges, the Lessee shall only be liable for the payment therefore during
the term of this lease and any over holding thereof that is attributable to the
duration of the said term or overholding.
(b) The Lessee further agrees that it will pay all business and other taxes,
licences, rates, duties and assessments imposed or levied by lawful authority
during the term of this Lease and relating to or in respect of the business of
the Lessee, or relating to or in respect of improvements fixtures, machinery,
chattels or equipment presently upon or hereafter brought upon the Leased
Premises by the Lessee, or relating to or in respect of improvements to the
Leased Premises built, made or installed by the Lessee or at the Lessee's
request, where such taxes, licences, rates and assessments are payable by law by
the Lessee or the Lessor and whether such taxes, licences, rates, duties and
assessments are included by the taxing authority in the taxes, licences, rates
duties and assessments imposed or levied on or with respect to the building
which forms part of the Leased Premises.
(c) The amount payable by the Lessee pursuant to Clause 5(a) of this lease shall
be based upon a statement from the applicable taxing authority, and shall be
paid by the Lessee to the Lessor not later than Five (5) business days before
the date the same are due to the applicable taxing authority.
(d) The Lessee shall pay to the Lessor any applicable Goods and Services Taxes
or other value added tax, sales tax, rental tax or other tax which may be
imposed from time to time by any lawful municipal, provincial federal or other
taxing authority on rents, additional rents taxes, charges, costs and expenses
and which would otherwise be paid by the Lessor or the Lessee. If the Lessor is
required to collect such a tax on rent, additional rent, taxes, costs, charges,
and expenses, then the Lessee will pay these taxes, when due, to the Lessor over
and above the rent, additional rent, taxes, charges, costs and expenses payable
to the Lessor and the Lessor will have all remedies for recovery of same as with
rent in arrears.
6.00 INSURANCE
During the term of this lease, the Lessee shall pay on demand all premiums with
respect to insurance which may be placed by the Lessor in its sole discretion
and generally described as follows:
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(a) All risk insurance for the full replacement value of the premises and
improvements and equipment thereof, including and without limiting the
generality of the foregoing, fire, impact by aircraft or vehicles, lightning,
riot, smoke, leakage, malicious damage, explosion, windstorm or hail,
earthquake, boiler, rental income and plate glass; and
(b) Public liability insurance in the amount of TWO MILLION ($2,000,000.00)
dollars or such greater amount as the Landlord may require in respect of bodily
injury, including death to one or more persons and property damage; and
(c) The amount of any increase in insurance premiums on the building if such
increase is caused by the Lessee's operation in or occupation of the Premises.
(d) The Lessee agrees to indemnify the Lessor from all liabilities, fines,
suits, claims, demands and actions of any kind and nature for which the Lessor
shall or may become liable or suffer by reason of any breach, violation or non-
performance by the Lessee or any covenant or proviso hereof, or by reason of any
injury or death occasioned to or suffered by any person or persons or any
property through any willful act, or the negligence of the Lessee or any of its
agents or employees; such indemnification in respect of any such breach,
violation or non-performance, damage to property, injury or death occurring
during the term shall survive any termination of this lease, anything in this
lease to the contrary notwithstanding, provided that the Lessee's obligations to
indemnify the Lessor under this clause shall exclude anything for which the
Lessor is insured.
(e) During the term of this Lease, the Lessee shall procure and maintain, at its
own expense, a public liability insurance policy naming the Lessor as an
additional insured thereunder, which policy shall be in amounts reasonable and
satisfactory to the Lessor but in no case less than TWO MILLION ($2,000,000.00),
and shall insure against claims for personal or bodily injury and against claims
for damage to property arising from single accidents or occurrences involving
injury to persons or property owned by third persons occurring on or about the
Leased Premises. A certificate evidencing such insurance shall be deposited by
the Lessee with the Lessor if requested. Such policy shall contain a provision
that the same shall not be cancelled or terminated except upon thirty (30) days
written notice to the Lessor.
7.00 WASTE, DAMAGE, COMPLIANCE WITH LAWS
(a) The Lessee covenants that no waste or damage shall be committed upon or to
the Leased Premises and that the Leased Premises shall be used for the purposes
herinabove stated. The Lessee shall observe and comply, at its expense, with all
future applicable laws, ordinances and regulations of public authorities, now or
hereafter in any manner affecting the Leased Premises, or the sidewalks,
boulevards or other municipally owned lands adjacent thereto, and any building,
structure, fixture and improvement thereon or thereto or the use thereof
including, without limiting the generality of the foregoing, any regulation or
order of the Canadian Fire Underwriters Association or any body having similar
functions or any insurance company by which the Lessor and Lessee or either of
them, may be insured. The Lessee will not permit any unlawful occupation,
business or trade to be conducted at the Leased Premises or any use to be made
thereof contrary to any law, ordinance or regulation. The Lessee will hold the
Lessor financially indemnified and saved harmless from the consequence of any
default or violation by the Lessee of any such laws, ordinances and regulations.
(b) The Lessee, at its sole cost and expense, shall comply or cause its tenants,
agents and invitees, at their sole cost and expense, to comply with all federal,
provincial and municipal laws, rules and regulations and orders with respect to
the discharge of contaminants into the natural environments, pay immediately
when due the cost of removal of such waste and the costs of improvements
necessary to deal with such contaminants and keep the Leased Premises free and
clear of any lien imposed pursuant to such laws, rules and regulations. In the
event the Lessee fails to do so, after notice to the Lessee and the expiration
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of the cure period under the applicable law, rule, regulation or order, the
Lessor, at its sole option, may declare the Lease to be in default.
(c) The Lessee shall indemnify and hold the Lessor harmless from and against all
loss, costs, damage or expense (including without limitation, legal fees and
costs, incurred in the investigation, defence and settlement of any claim)
relating to the presence of any hazardous waste or contaminant referred to
herein.
8.00 NUISANCE
The Lessee agrees that it will not at any time use, exercise or carry on or
permit or suffer to be used, exercised or carded on in or upon the Leased
Premises, or any part thereof, any noxious, noisome or offensive art, trade,
business, occupation or calling, or any act, matter or thing whatsoever which
shall or may be or become any annoyance, nuisance, grievance, damage or
disturbance to the owners or occupiers of adjoining and neighboring lands and
premises, or which may in any manner, directly or indirectly, cause injury to
the Leased Premises or to any appurtenances or fixtures thereof, and not to
bring or keep anything upon or in the Leased Premises or any part thereof which
is illegal or is, in the Lessor's opinion acting in good faith, dangerous, or
which will increase the premiums for, or make void or voidable, any insurance on
the Leased Premises, the Building or on any property or contents placed or kept
thereon or herein, or which will conflict with any laws relating to coverage or
of any of the terms or conditions of any policy of such insurance.
Notwithstanding the rights of the Lessor for the failure or neglect of the
Lessee to perform and observe as in this Clause 8 set forth, it is agreed by the
Lessee that in the event the Lessee brings upon the Leased Premises, or carries
on any business on the Leased Premises which result in an increase in the
insurance rates or premiums charged by the Lessor's insurer or any other cost of
operating the Lands and Building, such increase shall be for the account of the
Lessee, and upon the receipt by the Lessee of the Lessor's statement setting out
the amount thereof, the Lessee shall pay to the Lessor such amount.
9.00 REPAIRS AND MAINTENANCE
(a) The Lessee, at its expense, shall be solely responsible for maintaining and
keeping the Leased Premises and all appurtenances and fixtures thereto in the
reasonable opinion of the Lessor, in good and sufficient repair and in good
working order when, where and so often as may be necessary, including such
repairs as may be necessary by reason of ordinary wear and tear, painting the
interior and also including, without limit, all machinery, facilities, fixtures,
doors, including sliding and overhead, plumbing apparatus, plate glass, windows,
pipes, wiring, heating apparatus, air conditioning apparatus, floors, drains,
electric tight fixtures, wiring and equipment, whether interior or exterior, it
is also agreed and hereby acknowledged by the Lessee that the said maintenance
and repairs shall, whenever and wherever necessary, including replacements and
renewals, and that the same shall be done with due diligence and dispatch.
PROVIDED, that the said obligations of the Lessee to repair, maintain, replace
and renew as aforesaid shall not include and extend to damage by fire,
lightning, tempest, explosion, acts of the Queen's enemies, act of God, or other
event covered by the insurance referred to in Clause 6(a) of this Lease, and are
subject to Clause 13 of this Lease. The Lessee further covenants that if the
Lessee shall at any time fail to so maintain and make such repairs, renewals or
replacements, the Lessor may do so or may cause another to do so in a good and
workmanlike manner, and the cost thereof shall be for the account of the Lessee,
and upon receipt by the Lessee of the Lessor's statement setting out the amount
thereof, the Lessee shall pay to the Lessor such amount. For the purposes
aforesaid, the Lessee shall permit the Lessor, its servants, agents,
contractors, licensees and workmen, at all reasonable times, to enter upon the
Leased Premises without liability to the Lessor for any loss or damage that may
accrue to the Lessee by reason thereof, including without limiting, the business
of the Lessee.
(b) The Lessee shall permit the Lessor, its agents, servants, contractors,
licensees and workmen to enter from time to time upon the Leased Premises, or a
any part thereof, at all reasonable times for the purpose of viewing and
examining the condition and state of repair of the Leased Premises.
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(c) At the expiration or sooner termination of this Lease, the Lessee shall
deliver upon and surrender the Leased Premises in good and sufficient repair, in
the reasonable opinion of the Lessor, and the Lessee shall surrender to the
Lessor all the keys for the Leased Premises. The Lessee's obligations to observe
serve and perform as aforesaid shall survive the expiration or sooner
termination of the terms of this Lease.
10.00 OVERLOADING
The Lessee covenants with the Lessor not to bring into or upon the leased
premises, or any part thereof, any equipment, article or thing that by reason of
its weight and size may cause damage to the leased premises, and not at any time
to overload the floors of the Leased Premises, and in the event any damage is
caused to the Leased Premises or any part thereof by overloading, to forthwith
repair, replace or renew such damage.
11.00 ALTERATIONS, ADDITIONS AND IMPROVEMENTS
(a) Except as otherwise expressly provided herein, no changes, alterations,
erections, additions or improvements shall be made to the leased premises
without the prior written consent of the Lessor, or Lessor's agent, which
consent may not be unreasonably withheld. All of such changes, alterations,
additions or improvements shall be made solely at the expense of the Lessee, and
the Lessee agrees to protect, indemnify and save harmless the Lessor on account
of any injury to third persons or property by reason of any such changes,
alterations, erections, additions or improvements, and to protect, indemnify and
save harmless the Lessor from the payment of any claims of any kind or character
on account of bills for labour or material in connection therewith. Any changes,
alterations, additions or improvements placed upon the Leased Premises by the
Lessee during the term hereof, with the consent of the Lessor, shall be the sole
property of the Lessor, except as provided in Clause 12 herein.
(b) In the event that the Lessor should give its consent pursuant to Clause
1l(a) herein, the Lessee shall not erect any structure upon the Leased Premises
or make any changes, alterations, erections, additions or improvements which
might affect the structural integrity or the soundness of the Leased Premises
without first submitting to the Lessor drawings and specifications therefore
prepared by qualified architects or engineers and conforming to good
architectural or engineering practice. The Lessor shall have the right, from
time to time, to enter and to inspect all such changes, alterations or
improvements. The Lessee shall post the premises with a notice in the form
attached as Schedule "C" to protect the Lessor against liens.
(c) In every instance of changes, alterations, erections, additions or
improvements the Lessee must secure all necessary Building Permits and Approvals
from the City of Vancouver. All such Building Permits must be secured before any
work commences on the said changes, alterations, erections, additions or
improvements. This clause extends to include a Certificate of Occupancy, as
applicable.
12.00 FIXTURES
All machinery, fixtures and equipment installed on the Leased Premises at the
Lessee's expense, regardless of the manner of attachment to the realty, shall be
and remain the personal property of the Lessee, removable by it at its option at
the expiration or sooner termination of this Lease. The Lessee shall, however,
repair any damage caused directly or indirectly by said removal, or the means
thereof, by the manner in which said property is affixed to the realty. It is
understood that masonry partitions, heating ducts, stairways, balconies and
similar structures attached to the realty and floor coverings glued or cemented
to the floor shall not be removable, but shall become the property of the Lessor
on the expiration or termination of this lease. If the Lessee fails to remove
all or part of its machinery, fixtures and equipment on or before the expiration
or sooner termination of this lease, such property may, at the option of the
Lessor, conclusively be considered to have been abandoned by the Lessee, and
without
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liability to the Lessee, the Lessor may elect to dispose of the same and
thereafter charge the Lessee with the costs of removal and disposition and the
restoration of the Leased Premises, which said costs shall become payable by the
Lessee upon the demand for the payment thereof by the Lessor.
13.00 FIRE AND OTHER CASUALTY
In the event the Leased Premises are damaged or destroyed by fire or other
unavoidable casualty to such an extent as to render in excess of twenty-five
(25%) percent of the Leased Premises untenantable, the Lessor shall have the
option to rebuild or repair the Leased Premises. The Lessor shall have sixty
(60) days after the date of written notification by the Lessee of the happening
of such event in which to notify the Lessee of the Lessor's intention to rebuild
or repair the Leased Premises or the parts thereof so damaged or destroyed. If
the Lessor elects to rebuild or repair the Leased Premises, the Lessor shall
prosecute the work of such rebuilding or repairing without unreasonable delay,
and during the period from the damage until the Leased Premises are made
tenantable, the rent payable under this Lease shall be abated in the same ratio
that the of the portion of the Leased Premises rendered unfit for occupancy
shall bear to the area of the Leased Premises as at the commencement of this
Lease. If the Lessor fails to give such notice before the expiration of the
sixty (60) days, this Lease shall terminate and be of no further force or effect
after the date of such event in the event the Leased Premises are damaged by
fire or other casualty to an extent so as to render them untenantable, the
Lessor shall rebuild or repair the same without unnecessary delay, and during
such period the rent shall be abated at the same ratio that the area of the
portion of the Leased Premises rendered, for the time being, unfit for occupancy
shall bear to the area of the Leased Premises as at the commencement of the
Lease.
14.00 UTILITIES AND SERVICES
The Lessor shall not be obligated to furnish heat light, water, electricity,
telephone or any public service or utility to the Lessee or to the Leased
Premises. The Lessee agrees to make its own agreements or arrangements under
which it will pay, when due, for heat, light water, electricity, telephone,
scavenging or garbage collection or any public service or utility and further,
covenants to save the Lessor harmless from any Liens or claims that may be filed
against the Leased Premises on account of said agreements or arrangements.
15.00 ABANDONMENT OR VACATION OF PREMISES
If the Lessee shall abandon or vacate the Leased Premises before the end of the
term of this Lease, or upon the happening of any event entitling the Lessor to
take possession thereof, the Lessor may, at its option, take possession of the
Leased Premises and relet the same without such action being deemed an
acceptance of a surrender of this Lease, or in any way terminating the Lessee's
liability hereunder, and the Lessee shall remain liable to pay the Rent and the
Additional Rent herein reserved, less the net amount realized from such
reletting, after deduction of any expenses incident to such repossession and
reletting.
16.00 DEFAULT
(a) If the Lessee shall have failed to pay an installment of Rent or Additional
Rent or any other amount payable hereunder when due, or if the Lessee shall
neglect or fail to perform or observe any of the other Covenants or agreements
contained herein on its part to be observed and performed and shall continue to
be in default for a period of five (5) working days after written notice by the
Lessor of such breach, then the Lessor may, at its option, correct or remedy
such neglect or failure for the Lessee and upon completion of the correction or
remedy thereof, xxxx the Lessee for the cost of said correction or remedy, which
billing the Lessee will pay upon demand. At its option, the Lessor may, upon
notice of such breach in writing, declare this Lease terminated, null and void
and enter into and upon the Leased Premises, or any part thereof, and repossess
the same.
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(b) Upon any termination of this Lease, whether by lapse of time or otherwise,
or upon any termination of the Lessee's right to possession without termination
of this Lease, the Lessee shall surrender possession and vacate the Leased
Premises immediately and deliver possession thereof to the Lessor. The Lessee
hereby grants to the Lessor full and free licence to enter into and upon the
Leased Premises in such event with or without process of law and to repossess
unto the Lessor the Leased Premises as of the Lessor's former estate and to
expel or remove the Lessee and any others who may be occupying or within the
Leased Premises and to remove any and all property therefrom using as much force
as may be necessary. The Lessee hereby grants the said licence to enter as
aforesaid to the Lessor who, in the exercise of which, shall not be deemed in
any manner guilty of trespass, eviction or forcible entry or detainer, and
without relinquishing the Lessor's rights to rent or any other right available
to the Lessor hereunder or by operation of law. The Lessee expressly waives the
service of any demand of rent or for possession and, except for notice provided
herein, the Lessee expressly waives service of any notice of the Lessor's
election to terminate this Lease or to re-enter the Leased Premises, including
any and every form of demand and notice prescribed by any stature or other law,
and agrees that the simple breach of any covenant or provision of this Lease by
the Lessee shall, of itself without the service of any notice or demand
whatsoever, constitute a forcible detainer by the Lessee of the Leased Premises.
(c) The Lessee waives and renounces the benefit of any present or future law
taking away or limiting the Lessor's rights against the property of the Lessor
and notwithstanding any such law, the Lessor may seize and sell all of the
Lessee's goods and property which at any time have been located within the
Leased Premises whether within the Leased Premises or not and apply the proceeds
of such sale upon Rent, Additional Rent or other sums outstanding and upon the
costs of the seizure and sale in the same manner as might have been done if such
law had not passed. The Lessor further agrees that if it vacates the Leased
Premises leaving any Rent, Additional Rent or other sum unpaid, the Lessor, in
addition to any remedy otherwise provided by law, may seize and sell the said
goods and property of the Lessor at any place to which the Lessee or any other
person may have removed them, in the same manner as if such goods and property
had remained upon the Leased Premises.
(d) No condoning, excusing or overlooking by the Lessor or Lessee of any
default, breach or non-observance by the Lessee or the Lessor at any time or
times in respect of any covenant, proviso or condition herein contained shall
operate as a waiver of the Lessor's or the Lessee'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 Lessor or the Lessee herein in
respect of any continuing or subsequent default or breach, and no waiver shall
be inferred from or implied by anything done or omitted by the Lessor or the
Lessee save only express waiver in writing.
(e) All rights and remedies of the Lessor in this Lease contained shall be
cumulative and not alternative.
(f) For the purpose of making a distress or for the purpose of re-entry for any
reason under this Lease, the Lessor by itself, its agents or Bailiffs may break
open any door or window and enter upon the Leased Premises, and the Lessor, its
agents and Bailiffs, shall not be liable for any action in respect thereof or
for any loss or damage occasioned thereby. The Lessee hereby expressly releases
the Lessor from all actions, proceedings, claims or demands whatsoever for or on
account of or in respect of any such forcible entry or any loss or damage
sustained by the Lessee in connection therewith.
17.00 COSTS AND EXPENSES OF ENFORCEMENT
The Lessee covenants and agrees to pay all costs and expenses, including the
Lessor's solicitor's fees scale as between solicitor and client, incurred in
enforcing any of the obligations of the Lessee under this Lease or in any
litigation or negotiation in which the Lessor, without its fault, becomes
involved through or on account of this Lease, and the Lessor reserves the right
to select and employ its own counsel in any such litigation or negotiation.
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18.00 BANKRUPTCY OR RECEIVERSHIP
If the term hereby granted shall be at any time seized or taken in execution or
in attachment by any creditor of the Lessee or if the Lessee 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, or if the Lessee should abandon the Leased Premises, then in any such
case the said term shall, at the option of the Lessor, immediately become
forfeited and void and the then current month's Rent (including Additional
Rent)and the Rent (including Additional Rent) for the three (3) months following
shall immediately become due and payable and in such case it shall be lawful for
the Lessor at any time thereafter enter into and upon the Leased Premises or any
part thereof, in the name of the whole to reenter and the same to have again,
repossess and enjoy as of its former estate, anything herein contained to the
contrary notwithstanding.
19.00 ACCELERATION ON TERMINATION
If the Lessor terminates this Lease, Rent, Additional Rent and all other amounts
payable by the Lessee to the Lessor under the provisions of this Lease shall be
computed, apportioned and paid in full to the date of such termination forthwith
(such payments hereinafter being called "Accelerated Rent").
20.00 HOLDING OVER
Any holding over and continued occupancy by the Lessee after the expiration of
the term of this Lease or any renewal term as evidenced firstly, by the
continued occupation of the tenant and, secondly, by the Lessor's acceptance of
Rent shall be on a tenancy from month to month and either party hereto shall
have the right to terminate the same by giving one clear calendar month's
written notice of its intention to terminate said tenancy. Such tenancy shall be
subject to the covenants, agreements and conditions in this Lease contained
insofar as the same are applicable to a tenancy from month to month.
21.00 QUIET ENJOYMENT
The Lessor covenants with the Lessee that upon payment of the rent hereby
reserved at the times and in the manner herein provided and upon the observance
and performance of each and every one of the covenants, conditions, restrictions
and stipulations by the tenant to be observed or performed, the Lessee shall and
may peaceably and quietly possess and enjoy the Leased Premises during the term
of this Lease without any interruption from or by the Lessor or any persons
lawfully claiming by, through or under it save and except as expressly provided
in this Lease; Provided and it is hereby agreed that in no event will the
conduct of repairs, alterations, additions or renovations by the Lessor to the
exterior or interior of the Leased Premises or the Building (nor construction
work in or upon the Building or the Leased Premises) constitute a breach of this
covenant for quiet enjoyment.
22.00 ASSIGNMENT AND SUBLETTING
The Lessee shall not assign or sublet the Leased Premises or any part thereof
without the prior consent in writing by the Lessor.
23.00 SIGNS
The Lessee may, from time to time during the term, erect, paint, display,
maintain, alter, change or remove signs on the exterior and interior walls of
the building or in the windows of the Leased Premises, all such signs to be
dignified in appearance, approved in writing by the Lessor as to dimensions,
style and
Page 10
location and to comply with the requirements of municipal and governmental
authorities; and the Lessor, in approving such signs shall have regard to:
The aesthetic appeal of the signs or identification on the building; and
The need, as a primary purpose, to identify and not advertise the Tenant;
and
Such signs shall remain the property of the Lessee and shall be removed by it on
the termination of the Term. Upon removal of any such signs, the premises shall
be restored to their original condition including repairs, patching and painting
except for reasonable wear and tear. The Lessee shall indemnify the Lessor
against any loss or damage caused to any person or property as a result of the
placing, use or removal of any sign on the Leased Premises.
24.00 EXPROPRIATION AND CONDEMNATION
If the whole or any part of the Leased Premises shall be acquired or condemned
by any authority having the power for such acquisition or condemnation, then in
that event, the term of this Lease shall cease from the date of entry of such
authority insofar as the Premises so acquired or condemned comprise part of the
Leased Premises and Rent shall be pro-rated as of the said date. If only a
portion of the Leased Premises shall be so acquired or condemned, this Lease
shall, as from such a date, cease and terminate as to the remainder of the
Leased Premises at the Lessor's option, exercisable by notice in writing to the
Lessee to be given by the Lessor at any time during the period of thirty days as
from such date PROVIDED, however, that if the Lessor does not exercise the said
option, then the Lessee shall remain in possession of the remainder of the
Leased Premises and the rent thereof shall be reduced accordingly. In the event
any expropriation or condemnation is exercised, the Lessee shall have no
recourse against the Lessor for damages or any other loss suffered by the
Lessee. All compensation or damages awarded in respect of taking of the Leased
Premises and any diminution in value of the remainder thereof shall be the
property of the Lessor.
25.00 OTHER MONIES PAYABLE
(a) The Lessee agrees that any money payable by the Lessee to the Lessor under
this Lease other than Rent shall be deemed to be Rent and shall be collectible
as such and shall be paid by the Lessee to the Lessor with the next ensuing
monthly installment of Rent and in the event there shall be no such installment
ensuing by reason of the expiration or other termination of this Lease, shall be
paid within ten (10) days after the Lessor shall request the payment thereof and
in default of payment, the Lessor will have all remedies for recovery as with
Rent in arrears.
(b) The Lessee agrees that all rent in arrears, all amounts due and owing by the
Lessee to the Lessor under the provisions of this Lease, all amounts for costs
or expenses that have been paid by the Lessor and which, by reason of the
provisions of this Lease, ought to have been incurred and paid by the Lessee,
including accelerated rent, shall bear interest at the rate per annum equal to
two (2) percent above the prime rate charged from time to time by the Canadian
Imperial Bank of Commerce (being the rate from time to time published by the
Main Branch of such bank in Vancouver, British Columbia, as its reference rate
of interest to determine the rate of interest to be charged on Canadian dollar
demand loans), as from the date the same became payable by the Lessee to the
Lessor or as from the date of the payment of such costs or expenses by the
Lessor, as the case may be, and such interest shall be calculated on a daily
basis and be computed and compounded monthly and shall accrue until the date of
the payment of reimbursement thereof by the Lessee to the Lessor and, until
paid, all such interest shall be deemed to be Rent and shall be collectible by
the Lessor as such.
26.00 INTENT
Page 11
The Lessee acknowledges and agrees that it is intended that this Lease shall be
a completely carefree net lease for the Lessor and that the Lessor shall not be
responsible during the term herof for any costs, charges, expenses and outlays
of any nature whatsoever arising from or relating to the Leased Premises, or the
contents or occupancy thereof and without limiting the generality of the
foregoing, the Lessee shall be liable for payment of all charges, impositions
and expenses of every nature and kind relating to the Leased Premises and the
contents thereof and its proportionate share of all charges, impositions and
expenses of even nature and kind relating to those parts of the Leased Premises
not intended for leasing and the Lessee covenants with the Lessor accordingly.
27.00 INDEMNIFICATION
Notwithstanding any of the provisions of this Lease, the Lessee covenants and
agrees to indemnify and save harmless the Lessor from and against any and all
liabilities, damages, costs, expenses, claims, suits or other actions arising
out of the following:
(a) any breach, violation or non-performance of any covenant, condition or
agreement in the Lease set forth and contained on the part of the Lessee to
be observed and performed; and
(b) any act or omission of the Lessee; and
(c) any damage to property occasioned by the Lessees use or occupation of
the Leased
Premises or any part thereof; and
(d) any injury to any person or persons, including death, resulting at any
time, occurring upon, in or about the Leased Premises or any part thereof;
Except if caused by the negligence of the Lessor, its servants, agents or
contractors or by default of the Lessor under the terms of this Lease, the
obligations of the Lessee to indemnify and save harmless the Lessor as aforesaid
shall survive any termination of this Lease, anything in this Lease to the
contrary notwithstanding.
28.00 SUBORDINATION
This Lease is subject and subordinate to all mortgages or other encumbrances
which may now or hereafter be registered in the appropriate British Columbia
Land Title Office against the Leased Premises. The Lessee agrees that it shall
from time to time execute promptly any assurance the Lessor may properly require
to confirm the said subordination to any such mortgage or other encumbrance
registered as aforesaid; PROVIDED that, notwithstanding any such subordination,
the Lessee's rights and obligations under and pursuant to this Lease shall
remain in full force and effect, notwithstanding any action at any time taken to
enforce the security of any such mortgage or other encumbrance.
29.00 LESSOR COVENANTS
(a) The Lessor covenants that the Leased Premises constituting part of the
Budding Premises is structurally sound and otherwise on an "as is"
condition on the occupancy date.
(b) The Lessor warrants that all plumbing, heating, air conditioning,
electrical and mechanical systems and loading doors are in working
condition as at the commencement date of this Lease.
(c) In the event the roof top mounted air conditioning system(s) should fail
during the first year of the Term, requiring either replacement of the
unit, motor or a compressor, then the Lessor will pay the cost of such
replacement This obligation does not apply to any such failure after March
31, 1997.
Page 12
30.00 REPRESENTATION AND WARRANTIES
The Lessee hereby acknowledges that the Leased Premises are taken by the Lessee
without representations or warranties of any kind on the part of the Lessor or
its agents, excepting only as contained in Clause 29 above, and further
acknowledges that no representative or agent of the Lessor is or shall be
authorized or permitted to make any representation or warranty with reference
thereto unless evidenced in writing.
31.00 RIGHT TO RENEW
If the Lessee duly and regularly pays the Rent and Additional Rent and performs
each and every of the covenants herein to be performed and observed by the
Lessee, the Lessor shall grant to the Lessee, upon the Lessees giving at least
six (6) months' written notice prior to the expiration of the term of the Lease,
a renewal lease for a further term of Five (5) years from the expiration of the
initial term hereby granted upon the same terms and conditions contained herein,
except for the covenant for renewal and except for Rent. Rent for the said
renewal term shall be agreed upon between the parties and shall be based on the
fair market rental for premises of similar size, quality and location and for
the highest and best use at the time of renewal, but shall not be less than the
rent payable during the last year of the term of this lease. The Lessor and
Lessee shall attempt to agree on the fair market rental for the renewal term
during the three months immediately preceding the expiration of the initial
Term. If, at the point in time one (1) month immediately preceding the expiry of
the initial term, the Lessor and Lessee have failed to reach agreement as to the
rental rate to be paid during the term of the renewal lease, the rate shall be
determined by arbitration under the Arbitration Act of British Columbia.
32.00 SPECIFIC CONDITIONS AND AMENDMENTS
The stipulations of this Lease have been read by both parties hereto. There are
no agreements or understandings, either oral, written or otherwise, which in any
manner alter, enlarge, abridge or conflict with the terms of this Lease. No
departure from the terms of the Lease shall obligate the Lessor to permit any of
the terms hereof to be a waiver thereafter of any such terms or of any
succeeding breach. This Lease cannot be altered, enlarged or abridged except by
a writing duly signed by the Lessee and the Lessor, and as specified therein to
be an amendment hereof and attached hereto. No addition to any portion of this
Lease shall be binding upon either party unless initialled by the parties
signing the Lease.
33.00 CERTIFICATES
The Lessee shall promptly, whenever requested by the Lessor from time to time,
execute and deliver to the Lessor and, if required from the Lessor, to any
mortgagee (including any trustee under a trust deed or trust indenture)
designated by the Lessor, a confirmation in writing as to the status of this
Lease, including as to whether it is in full force and effect, is unmodified,
confirming the rental payable hereunder and the state of the accounts between
the Lessor and the Lessee, the existence or non-existance of defaults, or any
other matters pertaining to this Lease to which the Lessor shall request
confirmation.
34.00 SUBDIVISION
The Lessee hereby covenants and agrees that he will, at the written request of
the Lessor, make, do, execute or cause to be made, done or executed, all such
lawful acts, deeds, things, devices and assurances whatsoever to enable the
Lessor to subdivide the Lands, including without limiting the generality of the
foregoing, to execute a plan of subdivision and such release, discharge or
surrender or similar document ms may be required to remove this lease as a
registered charge from that portion of the Lands; PROVIDED that the said portion
to be subdivided out does not include the building.
Page 13
35.00 USE OF COMMON AREAS
During the term of this Lease, the Lessee, in common with the Lessor and all
other Lessees or users of the Lands (if any), will have the right to use and
enjoy the common areas of the Lands in such manner and subject to such
reasonable rules and regulations and restrictions as the Lessor may from time to
time designate, and the Lessor may change or diminish the common areas from time
to time.
36.00 ASSIGNMENT BY LESSOR
The term "Lessor" as used in this lease so far as covenants or obligations on
the part of the Lessor are concerned shall be limited to mean the Lessor as
hereinbefore set out, while it retains its interest in the Lands, Building and
Leased Premises but upon a transfer of that interest, the Lessor shall be
automatically relieved, after the date of transfer, of all liability arising out
of the requirement for performance of any obligations on the part of the Lessor
herein contained, it being intended hereby that the obligations contained in the
Lease on the part of the Lessor shall be binding upon the Lessor, its successors
and assigns, only during and in respect of the respective successive periods of
their interest in the Lands and the Leased Premises.
37.00 SECURITY DEPOSIT
The Lessee shall place with the Lessor a security deposit equal to the last
months rent payable hereunder. The Lessor hereby acknowledges receipt of the sum
of $12,521.41 from the Lessee, which sum shall be held by the Lessor, without
liability for interest, as security for the faithful performance by the Lessee
of the terms of this Lease. The Lessor will apply the sum of $5,765.83 on
account of the rent (not additional rent) first accruing due pursuant to this
Lease. If at any time, rent is overdue, then the Lessor may apply any portion of
the remaining deposit toward payment of such rent and any money not so applied
will be applied toward payment of rent for the last month of the term. If the
sum held by the Lessor shall at any time be less than the last month's basic
Rent then, upon demand made by the Lessor, the Lessee will increase the deposit
to an amount equal to the last month's basic Rent payable under this Lease.
38.00 APPLICABLE LAW
This Lease shall be deemed made and shall be construed in accordance with and be
governed by the laws of the Province of British Columbia.
39.00 REMEDIES CUMULATIVE
The Lessor may resort to any or all of the rights and remedies available to it
in the event of any default hereunder by the Lessee, either by the provisions of
this Lease or by statute of 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 Less or
by state or general law.
40.00 NOTICES
All notices, elections, demands and requests which may or are required to be
given or made hereunder shall be in writing and either served personally or sent
by postage prepaid registered mail, addressed if to the Lessor to:
Page 14
Xxxxxx X. Xxx and Xxxxxxxxx X. Xxxxxxxx
c/o TURNER, MEAKIN MANAGEMENT COMPANY LTD.
000 - 0000 XXXX 0XX XXXXXX,
XXXXXXXXX, X.X.
X0X 0X0
Attn: Xx. Xxxxx Xxxxxx
and if to the Lessee, to:
Datawave Vending (Canada) Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
and any notice, election, demand or request, if mailed as aforesaid, if during
periods of normal postal service, shall be conclusively deemed to have been
received by the addressee thereof on the day received or on the day notice is
delivered by the Lessor or his agents to the Leased Premises.
41.00 HEADINGS
The headings in this Lease are inserted only as a matter of convenience and for
reference and none of them shall define, limit or enlarge the scope, intent or
meaning of the provisions of this Lease, or in any way affect the same.
42.00 SUCCESSORS AND ASSIGNS
The covenants and agreements contained in this Lease shall be binding upon and
enure to the benefit of the Lessor and its heirs, executors, administrators and
assigns and shall be binding upon and enure to the benefit of the Lessee and its
successors and permitted assigns.
Page 15
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the day and
year first above written
SIGNED SEALED AND DELIVERED by HAYMUR ENTERPRISES LTD.
The Lessor in the presence of: Haymur Enterprises Ltd.
/s/ /s/ Xxxxxx X. Xxx
------------------------- --------------------------
Witness Xxxxxx X. Xxx President
Date: March 20/96
--------------------
SIGNED SEALED AND DELIVERED by
the Lessor in the presence of:
------------------------- --------------------------
Witness Xxxxxxxxx X. Xxxxxxxx
Date: -------------------
SIGNED SEALED AND DELIVERED by DATAWAVE VENDING (CANADA) INC.
the Lessee in the presence of:
/s/ per: /s/
------------------------- -----------------------
Witness Authorized Signatory
Date: 3/11/96
-------------------
Page 16
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the day and
year first above written
SIGNED SEALED AND DELIVERED by HAYMUR ENTERPRISES LTD.
The Lessor in the presence of:
/s/ /s/ Xxxxxx X. Xxx
------------------------- --------------------------
Witness Xxxxxx X. Xxx President
Date: Sept 12/96
--------------------
SIGNED SEALED AND DELIVERED by
the Lessor in the presence of:
/s/ X. Xxxxxxxxx /s/ Xxxxxxxxx X. Xxxxxxxx
------------------------- --------------------------
Witness Xxxxxxxxx X. Xxxxxxxx
Date:
--------------------
SIGNED SEALED AND DELIVERED by DATAWAVE VENDING (CANADA) INC.
the Lessee in the presence of:
/s/ per: /s/
------------------------- -----------------------
Witness Authorized Signatory
Date: 4/1/97
--------------------
Page 17
