Exhibit 10.11
Lease effective as of July 1, 1999 between the Company, Techwest
Management Ltd., BrainTech, Inc. and Pacific Centre Leaseholds Ltd.
PACIFIC CENTRE
PACIFIC CENTRE TOWER FOUR
OFFICE LEASE
BETWEEN
PACIFIC CENTRE LEASEHOLDS LIMITED
- AND -
TECHWEST MANAGEMENT INC.
(Tenant)
- AND -
SIDEWARE SYSTEMS INC.
AND
BRAINTECH, INC.
(collectively, the Indemnifier)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxx Xxxxxx Xxxxx Xxxx - Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
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LEASE
TABLE OF CONTENTS
ARTICLE I - PREMISES - TERM AND USE. . . . . . . . . . . . . . . . . . . . . .1
Section 1.01 Grant and Premises . . . . . . . . . . . . . . . . . . . . .1
Section 1.02 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.03 Construction of Premises . . . . . . . . . . . . . . . . . .1
Section 1.04 Use and Conduct of Business. . . . . . . . . . . . . . . . .1
ARTICLE II - RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 2.01 Covenant to Pay. . . . . . . . . . . . . . . . . . . . . . .1
Section 2.02 Net Rent . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.03 Payment of Operating Costs . . . . . . . . . . . . . . . . .2
Section 2.04 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . .2
Section 2.05 Payment of Estimated Taxes and Operating Costs . . . . . . .3
Section 2.06 Additional Rent. . . . . . . . . . . . . . . . . . . . . . .3
Section 2.07 Rent Past Due. . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.08 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.09 Adjustment of Areas. . . . . . . . . . . . . . . . . . . . .3
Section 2.10 Net Lease. . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.11 Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE III - CONTROL OF BUILDING. . . . . . . . . . . . . . . . . . . . . . .4
Section 3.01 Landlord's Services. . . . . . . . . . . . . . . . . . . . .4
Section 3.02 Alterations by Landlord. . . . . . . . . . . . . . . . . . .4
ARTICLE IV - ACCESS AND ENTRY. . . . . . . . . . . . . . . . . . . . . . . . .5
Section 4.01 Entry for Inspection and Work. . . . . . . . . . . . . . . .5
Section 4.02 Right to Show Premises . . . . . . . . . . . . . . . . . . .5
Section 4.03 Entry not Forfeiture . . . . . . . . . . . . . . . . . . . .5
ARTICLE V - MAINTENANCE, REPAIRS AND ALTERATIONS . . . . . . . . . . . . . . .5
Section 5.01 Maintenance By Landlord. . . . . . . . . . . . . . . . . . .5
Section 5.02 Maintenance by Tenant; Compliance with Laws. . . . . . . . .6
Section 5.03 Tenant's Alterations . . . . . . . . . . . . . . . . . . . .6
Section 5.04 Repair Where Tenant at Fault . . . . . . . . . . . . . . . .6
Section 5.05 Removal of Improvements and Fixtures . . . . . . . . . . . .6
Section 5.06 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 5.07 Notice by Tenant . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE VI - INSURANCE AND INDEMNITY . . . . . . . . . . . . . . . . . . . . .7
Section 6.01 Tenant's Insurance . . . . . . . . . . . . . . . . . . . . .7
Section 6.02 Increase in Insurance Premiums . . . . . . . . . . . . . . .8
Section 6.03 Cancellation of Insurance. . . . . . . . . . . . . . . . . .8
Section 6.04 Loss or Damage . . . . . . . . . . . . . . . . . . . . . . .9
Section 6.05 Landlord's Insurance . . . . . . . . . . . . . . . . . . . .9
Section 6.06 Indemnification of the Landlord. . . . . . . . . . . . . . .9
ARTICLE VII - DAMAGE AND DESTRUCTION . . . . . . . . . . . . . . . . . . . . .9
Section 7.01 No Abatement or Termination. . . . . . . . . . . . . . . . .9
Section 7.02 Damage to Premises . . . . . . . . . . . . . . . . . . . . .9
Section 7.03 Right of Termination . . . . . . . . . . . . . . . . . . . 10
Section 7.04 Destruction of or Damage to Building . . . . . . . . . . . 10
Section 7.05 Architect's Certificate. . . . . . . . . . . . . . . . . . 11
ARTICLE VIII - ASSIGNMENT, SUBLETTING AND TRANSFERS. . . . . . . . . . . . . 11
Section 8.01 Assignments, Subleases and Transfers . . . . . . . . . . . 11
Section 8.02 Landlord's Rights. . . . . . . . . . . . . . . . . . . . . 11
Section 8.03 Conditions of Transfer . . . . . . . . . . . . . . . . . . 12
Section 8.04 Change of Control. . . . . . . . . . . . . . . . . . . . . 12
Section 8.05 No Advertising . . . . . . . . . . . . . . . . . . . . . . 13
Section 8.06 Assignment By Landlord . . . . . . . . . . . . . . . . . . 13
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ARTICLE IX - DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 9.01 Default and Remedies . . . . . . . . . . . . . . . . . . . 13
Section 9.02 Distress . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 9.03 Damages and Costs. . . . . . . . . . . . . . . . . . . . . 14
Section 9.04 Allocation of Payments . . . . . . . . . . . . . . . . . . 14
Section 9.05 Survival of Obligations. . . . . . . . . . . . . . . . . . 14
ARTICLE X - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION . . . . . . . . . 14
Section 10.01 Status Statement. . . . . . . . . . . . . . . . . . . . . 14
Section 10.02 Subordination . . . . . . . . . . . . . . . . . . . . . . 14
Section 10.03 Attornment. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 10.04 Execution of Documents. . . . . . . . . . . . . . . . . . 15
ARTICLE XI - GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.01 Rules and Regulations . . . . . . . . . . . . . . . . . . 15
Section 11.02 Delay . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.03 Overholding . . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.04 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.05 Registration. . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.06 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.07 Successors. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 11.08 Joint and Several Liability . . . . . . . . . . . . . . . 16
Section 11.09 Captions and Section Numbers. . . . . . . . . . . . . . . 16
Section 11.10 Extended Meanings . . . . . . . . . . . . . . . . . . . . 16
Section 11.11 Partial Invalidity. . . . . . . . . . . . . . . . . . . . 16
Section 11.12 Entire Agreement. . . . . . . . . . . . . . . . . . . . . 16
Section 11.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . 16
Section 11.14 Time of the Essence . . . . . . . . . . . . . . . . . . . 16
Section 11.15 Authority . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 11.16 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . 17
Section 11.17 Indemnity Agreement . . . . . . . . . . . . . . . . . . . 17
. . . . . . . . . . . . . . . . . . . . 17
. . . . . . . . . . . . . . . . . . . . 17
Section 11.20 Execution . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 11.21 PARKING . . . . . . . . . . . . . . . . . . . . . . . . . 17
SCHEDULE "A" - LEGAL DESCRIPTION OF THE LANDS. . . . . . . . . . . . . . . . 19
SCHEDULE "B" - FLOOR PLAN OF THE PREMISES. . . . . . . . . . . . . . . . . . 20
SCHEDULE "C" - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 21
SCHEDULE "D" - RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . 26
SCHEDULE "E" - INDEMNITY AGREEMENT . . . . . . . . . . . . . . . . . . . . . 28
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THIS LEASE is dated the 25TH day of JUNE, 1999.
B E T W E E N:
PACIFIC CENTRE LEASEHOLDS LIMITED
(the "Landlord")
- and -
TECHWEST MANAGEMENT INC.
(the "Tenant")
- and -
SIDEWARE SYSTEMS INC. AND BRAINTECH, INC.
(collectively, the "Indemnifier")
ARTICLE I - PREMISES - TERM AND USE
SECTION I.1 GRANT AND PREMISES
In consideration of the performance by the Tenant of its obligations under
this Lease, the Landlord leases the Premises to the Tenant for the Term
DESCRIBED IN SECTION 1.02. The Premises are located on the 16TH floor of the
Building and COMPRISE THE ORIGINAL PREMISES (THE "ORIGINAL PREMISES") WHICH
are shown outlined in red on the floor plan attached as Schedule "B" AND THE
EXTENDED PREMISES (THE "EXTENDED PREMISES") WHICH ARE SHOWN OUTLINED IN RED
ON THE FLOOR PLAN ATTACHED AS SCHEDULE "B1". FOR THE PURPOSES OF THIS LEASE,
REFERENCES TO THE PREMISES WILL MEAN THE ORIGINAL PREMISES ONLY FOR THE
PERIOD COMMENCING JULY 1, 1999 THROUGH AND INCLUDING THE LAST DAY OF
NOVEMBER, 2000 AND WILL MEAN BOTH THE ORIGINAL PREMISES AND THE EXTENDED
PREMISES FOR THE PERIOD COMMENCING DECEMBER 1, 2000 AND ENDING THE LAST DAY
OF JUNE, 2002. The Net Rentable Area of the ORIGINAL Premises is
approximately 3,538 square feet and the Rentable Area of the Original
Premises is approximately 3,909 square feet. THE NET RENTABLE AREA OF THE
EXTENDED PREMISES IS APPROXIMATELY 3,996 SQUARE FEET AND THE RENTABLE AREA OF
THE EXTENDED PREMISES IS APPROXIMATELY 4,416 SQUARE FEET.
SECTION 1.02 TERM
The Term of this Lease WITH RESPECT TO THE ORIGINAL PREMISES is THREE (3)
years from the 1ST day of JULY, 1999, to the LAST day of JUNE, 2002. THE
TERM OF THIS LEASE WITH RESPECT TO THE EXTENDED PREMISES IS ONE (1) YEAR AND
SEVEN (7) MONTHS FROM THE 1ST DAY OF DECEMBER, 2000, TO THE LAST DAY OF JUNE,
2002.
SECTION 1.03 CONSTRUCTION OF PREMISES
The provisions (if any) of the Lease Proposal relating to construction of the
Premises and delay in availability of the Premises for occupancy by the
Tenant shall remain in effect and shall not merge upon the execution of this
Lease. The Tenant shall abide by the provisions of the tenant leasehold
improvement manual supplied by the Landlord for any construction it proposes
to do prior to or upon occupancy of the Premises, and any renovations to the
Premises after it takes occupancy.
SECTION 1.04 USE AND CONDUCT OF BUSINESS
The Premises shall be used only for general office use and for no other
purpose.
The Tenant shall conduct its business in the Premises in a reputable and
first class manner. If the Tenant is a corporation, the Tenant will be
either incorporated or extra-provincially registered in the province of
British Columbia and will remain in good standing during the Term with the
Registrar of Companies for British Columbia with respect to filing annual
reports.
ARTICLE II - RENT
SECTION 2.01 COVENANT TO PAY
(a) Except as may be provided in Section 2.02, the Tenant shall pay Rent from
the Commencement Date without prior demand and without any deduction, abatement,
setoff or compensation. If the
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Commencement Date is not on the first day of a calendar month, or the period
of time from the Commencement Date to the end of the first Fiscal Year during
the Term is less than 12 calendar months, or the period of time from the last
Fiscal Year end during the Term to the end of the Term is less than 12
calendar months, then Rent for such month and such periods shall be pro-rated
on a per diem basis, based upon a period of 365 days.
(b) If an Event of Default occurs, at the request of the Landlord, the
Tenant will deliver to the Landlord a series of monthly post-dated cheques
for the next ensuing twelve month period, for the total of the monthly
payments of Net Rent and any Additional Rent estimated by the Landlord in
advance.
SECTION 2.02 NET RENT
(a) WITH RESPECT TO THE ORIGINAL PREMISES, the Tenant shall pay Net Rent
in the sum of SIXTY-FOUR THOUSAND, FOUR HUNDRED AND NINETY-EIGHT DOLLARS AND
FIFTY CENTS ($64,498.50) per annum payable in equal monthly instalments of
FIVE THOUSAND THREE HUNDRED AND SEVENTY-FOUR DOLLARS AND EIGHTY-EIGHT CENTS
($5,374.88) each in advance, on the first day of each calendar month of the
Term. The Net Rent is based on an annual rate of $16.50 per square foot of
the Rentable Area of the ORIGINAL Premises. As soon as reasonably possible
after completion of construction of the ORIGINAL Premises, the Landlord shall
measure the Net Rentable Area of the ORIGINAL Premises and shall calculate
the Rentable Area of the ORIGINAL Premises and Rent shall be adjusted
accordingly.
(b) WITH RESPECT TO THE EXTENDED PREMISES, THE TENANT SHALL PAY NET RENT
IN THE SUM OF SEVENTY-TWO THOUSAND, EIGHT HUNDRED AND SIXTY-FOUR DOLLARS
($72,864) PER ANNUM PAYABLE IN EQUAL MONTHLY INSTALLMENTS OF SIX THOUSAND AND
SEVENTY-TWO DOLLARS ($6,072) EACH IN ADVANCE, ON THE FIRST DAY OF EACH
CALENDAR MONTH COMMENCING DECEMBER 1, 2000 AND CONTINUING UNTIL THE END OF
THE TERM. THE NET RENT IS BASED ON AN ANNUAL RATE OF $16.50 PER SQUARE FOOT
OF THE RENTABLE AREA OF THE EXTENDED PREMISES.
SECTION 2.03 PAYMENT OF OPERATING COSTS
The Tenant shall pay to the Landlord the Tenant's Proportionate Share of
Operating Costs.
SECTION 2.04 PAYMENT OF TAXES
(a) The Tenant shall pay when due all Business Tax. If the Tenant's
Business Tax is payable by the Landlord to the relevant taxing authority, the
Tenant shall pay the amount thereof to the Landlord or as it directs. If no
separate tax bills for Business Tax are issued with respect to the Tenant or
the Premises, the Landlord may allocate Business Tax charged, assessed or
levied against the Building or the Lands to the Tenant on the basis of the
Tenant's Proportionate Share.
(b) The Landlord shall allocate Taxes between the Total Rentable Area of
the Building and other components of the Development on such basis as the
Landlord, acting equitably, determines from time to time.
(c) The Tenant shall pay to the Landlord its Proportionate Share of the
Taxes allocated to the Total Rentable Area of the Building by the Landlord.
(d) If the Landlord obtains a written statement from the assessment or
taxing authorities indicating that as a result of any construction or
installation of improvements in the Premises, or any act or election of the
Tenant, the Taxes payable by the Tenant under subsection 2.05(b) do not
accurately reflect the Tenant's proper share of Taxes, the Landlord may
require the Tenant to pay such greater or lesser amount as is determined by
the Landlord, acting reasonably.
(e) The Landlord may: contest any Taxes and appeal any assessments with
respect thereto; withdraw any such contest or appeal; and agree with the
taxing authorities on any settlement or compromise with respect to Taxes.
The Tenant will co-operate with the Landlord in respect of any such contest
or appeal and will provide the Landlord with all relevant information,
documents and consents required by the Landlord in connection with any such
contest or appeal. The Tenant will not contest any Taxes or appeal any
assessments related thereto without the Landlord's prior written consent.
(f) The Tenant shall promptly deliver to the Landlord on request, copies
of assessment notices, tax bills and other documents received by the Tenant
relating to Taxes and Business Tax and receipts for payment of Taxes and
Business Tax payable by the Tenant.
(g) The Tenant shall on demand, pay to the Landlord or to the appropriate
taxing authority if required by the Landlord, all goods and services taxes,
sales taxes, value added taxes, business transfer taxes, or any other taxes
imposed on the Landlord with respect to Rent or in respect of the rental of
space
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under this Lease, whether characterized as a goods and services tax, sales
tax, value added tax, business transfer tax or otherwise. The Landlord shall
have the same remedies and rights with respect to the payment or recovery of
such taxes as it has for the payment or recovery of Rent under this Lease.
SECTION 2.05 PAYMENT OF ESTIMATED TAXES AND OPERATING COSTS
(a) The amount of Taxes and Operating Costs may be estimated by the
Landlord for such period as the Landlord determines from time to time, and
the Tenant agrees to pay to the Landlord the amounts so estimated in equal
instalments, in advance, on the first day of each month during such period.
Notwithstanding the foregoing, when bills for all or any portion of the
amounts so estimated are received, the Landlord may xxxx the Tenant for the
Tenant's Proportionate Share thereof (or the amount determined under Section
2.04(d)) after crediting against such amounts any monthly payments of
estimated Taxes and Operating Costs previously made by the Tenant and the
Tenant shall pay the Landlord the amounts so billed.
(b) Within a reasonable time after the end of the period for which such
estimated payments have been made, the Landlord shall submit to the Tenant a
statement showing the calculation of the Tenant's share of Taxes and
Operating Costs together with a report from the Landlord's auditor as to the
total amount of Operating Costs. If: (i) the amount the Tenant has paid is
less than the amounts due, the Tenant shall pay such deficiency to the
Landlord; or (ii) the amount paid by the Tenant is greater than the amounts
due, the Landlord shall pay such excess to the Tenant.
(c) The obligations contained in this Section shall survive the expiration
or earlier termination of the Term. Failure of the Landlord to render any
statement of Taxes or Operating Costs shall not prejudice the Landlord's
right to render such statement thereafter or with respect to any other
period. The rendering of any such statement shall also not affect the
Landlord's right to subsequently render an amended or corrected statement.
SECTION 2.06 ADDITIONAL RENT
Except as otherwise provided in this Lease, all Additional Rent shall be
payable by the Tenant to the Landlord within 5 business days after demand.
SECTION 2.07 RENT PAST DUE
All Rent past due shall bear interest from the date on which the same became
due until the date of payment at 5% per annum in excess of the prime interest
rate for Canadian Dollar demand loans announced from time to time by any
Canadian chartered bank designated by the Landlord.
SECTION 2.08 UTILITIES
(a) The Tenant shall pay to the Landlord, or as the Landlord directs, all
gas, electricity, water, steam and other utility charges applicable to the
Premises on the basis of the Rentable Area of the Premises. Charges for
utilities shall be payable in advance on the first day of each month at a
basic rate determined by the Landlord's engineers. The Landlord shall be
entitled to allocate to the Premises an additional charge, as determined by
the Landlord's engineer, for any supply of utilities to the Premises in
excess of those covered by such basic charge. If any utility rates or
related taxes or charges are increased or decreased during the Term, such
charges shall be equitably adjusted and the decision of the Landlord, acting
reasonably, shall be final and binding with respect to any such adjustment.
(b) The Landlord shall have the exclusive right to replace bulbs, tubes
and ballasts in the lighting system in the Premises, on either an individual
or a group basis. The Tenant shall pay the cost of such replacement on the
first day of each month or at the option of the Landlord upon demand.
(c) The Tenant shall pay the cost of installing and maintaining any meters
installed at the request of the Landlord or the Tenant to measure the usage
of utilities in the Premises.
SECTION 2.09 ADJUSTMENT OF AREAS
The Landlord may from time to time re-measure the Net Rentable Area of the
Premises or re-calculate the Rentable Area of the Premises and may re-adjust
the Net Rent and/or the Tenant's Proportionate Share of Additional Rent
accordingly. The effective date of any such re-adjustment shall: (a) in the
case of an adjustment to the Rentable Area resulting from a change in the
aggregate Net Rentable Area of all office premises on the floor on which the
Premises are situated, be the date on which such change occurred; and (b)
in the case of a correction to any measurement or calculation error, be the
date as of which such error was introduced in the calculation of Rent. Any
necessary adjusting payment will be made by the party responsible for that
payment forthwith upon the amount of the adjusting payment
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being determined.
SECTION 2.10 NET LEASE
This Lease is a completely net lease to the Landlord, except as expressly
herein set out. The Landlord is not responsible for any expenses or outlays
of any nature arising from or relating to the Premises, or the use or
occupancy thereof, or the contents thereof or the business carried on
therein. The Tenant shall pay all charges, impositions and outlays of every
nature and kind relating to the Premises except as expressly herein set out.
SECTION 2.11 DEPOSIT
The Landlord hereby acknowledges receipt of the Tenant's deposit cheque in a
sum EQUAL TO ONE MONTH'S RENT PLUS GST which will be applied without interest
against the FIRST Rent due under this Lease.
ARTICLE III - CONTROL OF BUILDING
SECTION 3.01 LANDLORD'S SERVICES
(a) The Landlord shall provide climate control to the Premises 24 hours
per day from Monday to Friday inclusive and from 9:00 a.m. to 6:00 p.m. on
Saturdays, Sundays and statutory holidays throughout the Term to maintain a
temperature adequate for normal occupancy, except during the making of
repairs, alterations or improvements, provided that the Landlord shall have
no liability for failure to supply climate control service when stopped as
aforesaid or when prevented from doing so by repairs, or causes beyond the
Landlord's reasonable control. Any rebalancing of the climate control system
in the Premises necessitated by the installation of partitions, equipment or
fixtures by the Tenant or by any use of the Premises not in accordance with
the design standards of such system will be performed by the Landlord or, at
the option of the Landlord, by the Tenant, but in either case at the Tenant's
expense.
(b) Subject to the Rules and Regulations, the Landlord shall provide
elevator service 24 hours per day, 7 days per week for use by the Tenant in
common with others, except when prevented by repairs. The Landlord will
operate at least one passenger elevator for use by tenants at all times
except in the case of fire or other emergencies.
(c) The Landlord will provide cleaning services in the Building consistent
with the standards of a first class office building.
(d) Subject to Section 2.08, the Landlord shall make available to the
Premises electricity for normal lighting and miscellaneous power requirements
and, in normal quantities gas, water, and other public utilities generally
made available to other tenants of the Building by the Landlord.
SECTION 3.02 ALTERATIONS BY LANDLORD
The Landlord may: (a) alter, add to, subtract from, construct improvements
to, rearrange, build additional storeys on and construct additional
facilities adjoining or near the Development; (b) relocate the facilities and
improvements comprising the Building or erected on the Lands, or relocate,
alter or rearrange the Premises, provided that the premises as relocated,
altered, or rearranged shall be in all material aspects comparable to the
Premises as herein defined; (c) do such things on, or in the Lands or
Development as are required to comply with any laws, by-laws, regulations,
orders or directives affecting the Lands or any part of the Development; and
(d) do such other things on or in the Lands or Development as the Landlord,
in the use of good business judgment determines to be advisable; provided
that notwithstanding anything contained in this Section, access to the
Premises shall at all times be available from the elevator lobbies of the
Building.
The Landlord shall not be in breach of its covenant for quiet enjoyment or
liable for any loss, costs or damages, whether direct or indirect, incurred
by the Tenant due to any of the foregoing.
ARTICLE IV - ACCESS AND ENTRY
SECTION 4.01 ENTRY FOR INSPECTION AND WORK
The Landlord shall be entitled at all reasonable times (and at any time in
case of emergency) to enter the Premises to examine them; to make such
repairs, alterations or improvements in the Premises or to the
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Building as the Landlord considers necessary or desirable; to have access to
underfloor ducts and access panels to mechanical shafts; to check, calibrate,
adjust and balance controls and other parts of the heating, air conditioning,
ventilating and climate control systems; and for any other purpose necessary
to enable the Landlord to perform its obligations or exercise its rights
under this Lease or in the administration of the Building or other
improvements on the Lands. The Tenant shall not obstruct any pipes, conduits
or mechanical or electrical equipment so as to prevent reasonable access
thereto. The Landlord shall exercise its rights under this Section, to the
extent possible in the circumstances, in such manner so as to minimize
interference with the Tenant's use and enjoyment of the Premises.
SECTION 4.02 RIGHT TO SHOW PREMISES
The Landlord and its agents shall have the right to enter the Premises at all
reasonable times during Normal Business Hours to show them to prospective
purchasers, or Mortgagees or prospective Mortgagees, and, during the last six
months of the Term (or the last six months of any renewal term if this Lease
is renewed), to prospective tenants.
SECTION 4.03 ENTRY NOT FORFEITURE
No entry into the Premises or anything done hereunder by the Landlord
pursuant to a right granted by this Lease shall constitute a breach of any
covenant for quiet enjoyment, or (except where expressed by the Landlord in
writing) shall constitute a re-entry or forfeiture, or an actual or
constructive eviction. The Tenant shall have no claim for injury, damages or
loss suffered as a result of any such entry or thing, except in the case of
wilful misconduct by the Landlord in the course of such entry, but the
Landlord shall in no event be responsible for the acts or negligence of any
Persons providing cleaning services in the Building.
ARTICLE V - MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 5.01 MAINTENANCE BY LANDLORD
(a) The Landlord covenants to keep the following in good repair as a
prudent owner: (i) the structure of the Building including exterior walls
and roofs; (ii) the mechanical, electrical and other base building systems;
and (iii) the entrance, lobbies, plazas, stairways, corridors, parking areas
and other facilities from time to time provided for use in common by the
Tenant and other tenants of the Building. If such maintenance or repairs or
alterations are required by law or in the prudent management of the Building
or any other improvements on the Lands due to the business carried on by the
Tenant, then the full cost of such maintenance and repairs plus a sum equal
to 15% of such cost representing the Landlord's overhead, shall be paid by
the Tenant to the Landlord.
(b) The Landlord shall not be responsible for any damages caused to the
Tenant by reason of failure of any equipment or facilities serving the
Building or delays in the performance of any work for which the Landlord is
responsible under this Lease. The Landlord shall have the right to stop,
interrupt or reduce any services, systems or utilities provided to, or
serving the Building or Premises to perform repairs, alterations or
maintenance or to comply with laws or regulations, or requirements of its
insurers, or for causes beyond the Landlord's reasonable control or as a
result of the Landlord exercising its rights under Section 3.02. The
Landlord shall not be in breach of its covenant for quiet enjoyment or liable
for any loss, costs or damages, whether direct or indirect, incurred by the
Tenant due to any of the foregoing, but the Landlord shall make reasonable
efforts to restore the services, utilities or systems so stopped, interrupted
or reduced.
(c) If the Tenant fails to carry out any maintenance, repairs or work
required to be carried out by it under this Lease to the reasonable
satisfaction of the Landlord, the Landlord may at its option carry out such
maintenance or repairs without any liability for any resulting damage to the
Tenant's property or business. The cost of such work, plus a sum equal to
15% of such cost representing the Landlord's overhead, shall be paid by the
Tenant to the Landlord.
SECTION 5.02 MAINTENANCE BY TENANT; COMPLIANCE WITH LAWS
(a) The Tenant shall at its sole cost repair and maintain the Premises
exclusive of base building mechanical and electrical systems, all to a
standard consistent with a first class office building, with the exception
only of those repairs which are the obligation of the Landlord under this
Lease, subject to Article VII. The Landlord may enter the Premises at all
reasonable times to view their condition and the Tenant shall maintain and
keep the Premises in good and substantial repair according to notice in
writing. At the expiration or earlier termination of the Term, the Tenant
shall surrender the Premises to the Landlord in as good condition and repair
as the Tenant is required to maintain the Premises throughout the Term.
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(b) The Tenant shall, at its own expense, promptly comply with all laws,
by-laws, government orders and with all reasonable requirements or directives
of the Landlord's insurers affecting the Premises or their use, repair or
alteration.
SECTION 5.03 TENANT'S ALTERATIONS
(a) No Alterations shall be made to the Premises without the Landlord's
written approval. The Tenant shall submit to the Landlord details of the
proposed work including drawings and specifications prepared by qualified
architects or engineers conforming to good engineering practice. All such
Alterations shall be performed: (i) at the sole cost of the Tenant; (ii) by
contractors and workmen approved by the Landlord; (iii) in a good and
workmanlike manner; (iv) in accordance with drawings and specifications
approved by the Landlord; (v) in accordance with all applicable legal and
insurance requirements; (vi) subject to the reasonable regulations,
supervision, control and inspection of the Landlord; (vii) subject to such
indemnification against liens and expenses as the Landlord reasonably
requires; and (viii) in accordance with all applicable laws, by-laws and
government orders. The Landlord's reasonable cost incurred with respect to
the Tenant's Alterations including without limitation the cost of approving,
supervising and inspecting all such work shall be paid by the Tenant.
(b) If the Alterations would affect the structure of the Building or any
of the electrical, plumbing, mechanical, heating, ventilating or air
conditioning systems or other base building systems, such work shall at the
option of the Landlord be performed by the Landlord at the Tenant's cost. If
the Landlord performs such work, then on completion of such work, the cost of
the work plus a sum equal to 15% of said cost representing the Landlord's
overhead shall be paid by the Tenant to the Landlord.
(c) If the Tenant installs Leasehold Improvements, or makes Alterations
which depart from the Building standard and which restrict access by the
Landlord to any Building system or to any structural element of the Building
by the Landlord or by any person or corporation authorized by the Landlord,
or which restrict the installation of the leasehold improvements of any other
tenant in the Building, then the Tenant shall at the request of the Landlord
remove any obstruction in a manner acceptable to the Landlord, failing which
the Landlord may remove the same; and the Tenant will pay, or reimburse the
Landlord for, the cost of such removal and for any replacement or restoration
of such Leasehold Improvements or Alterations.
SECTION 5.04 REPAIR WHERE TENANT AT FAULT
Notwithstanding any other provisions of this Lease, if the Building is
damaged or destroyed or requires repair, replacement or alteration as a
result of the act or omission of the Tenant, its employees, agents, invitees,
licensees, contractors or others for whom it is in law responsible, the cost
of the resulting repairs, replacements or alterations plus a sum equal to 15%
of such cost representing the Landlord's overhead, shall be paid by the
Tenant to the Landlord.
SECTION 5.05 REMOVAL OF IMPROVEMENTS AND FIXTURES
All Leasehold Improvements (other than Trade Fixtures) shall immediately upon
their placement, before or during the Term, become the Landlord's property
without compensation to the Tenant. Except as otherwise agreed by the
Landlord in writing, no Leasehold Improvements shall be removed from the
Premises by the Tenant either during or at the expiration or sooner
termination of the Term except that:
(a) the Tenant may, during the Term, in the usual course of its business,
remove its Trade Fixtures, provided that the Tenant is not in default under
this Lease;
(b) the Tenant shall, at the expiration or earlier termination of the
Term, at its sole cost, remove its Trade Fixtures from the Premises, failing
which, at the option of the Landlord, the Trade Fixtures shall become the
property of the Landlord and may be removed from the Premises and sold or
disposed of by the Landlord in such manner as it deems advisable; and
(c) the Tenant shall, at the expiration or earlier termination of the
Term, at its sole cost, leave the premises in a neat and tidy condition.
SECTION 5.06 LIENS
The Tenant shall promptly pay for all materials supplied and work done in
respect of the Premises so as to ensure that no lien is registered against
any portion of the Lands or Building or against the Landlord's or Tenant's
interest therein. If a lien is registered or filed, the Tenant shall
discharge it at its expense forthwith, failing which the Landlord may at its
option discharge the lien by paying the amount claimed to be due into court
or directly to the lien claimant and the amount so paid and all expenses of
the
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Landlord including legal fees (on a solicitor and client basis) shall be paid
by the Tenant to the Landlord. The Tenant will not grant any security
interest in the Leasehold Improvements without the prior written consent of
the Landlord and will promptly cause the discharge of any financing statement
or notice which may be filed in respect of such security interest under any
statute, unless such statement or notice is in favour of the Landlord.
SECTION 5.07 NOTICE BY TENANT
The Tenant shall notify the Landlord of any accident, defect, damage or
deficiency in any part of the Premises or the Building which comes to the
attention of the Tenant, its employees or contractors notwithstanding that
the Landlord may have no obligation in respect thereof.
ARTICLE VI - INSURANCE AND INDEMNITY
SECTION 6.01 TENANT'S INSURANCE
(a) The Tenant shall maintain the following insurance throughout the Term at
its sole cost:
(i) "All Risks" (including flood and earthquake) property insurance
with deductibles not exceeding 3% of the amount insured, naming
the Landlord, the owners of the Lands and Development and the
Mortgagee as insured parties, containing a waiver of any
subrogation rights which the Tenant's insurers may have against
the Landlord and against those for whom the Landlord is in law
responsible, and (except with respect to the Tenant's chattels)
incorporating the Mortgagee's standard mortgage clause. Such
insurance shall insure: (1) property of every kind owned by the
Tenant or for which the Tenant is legally liable located on or in
the Development including, without limitation, Leasehold
Improvements, in an amount equal to not less than 90% of the full
replacement cost thereof, subject to a stated amount co-insurance
clause; and (2) extra expense insurance in such amount as will
reimburse the Tenant for loss attributable to all perils referred
to in this paragraph 6.01(a)(i) or resulting from prevention of
access to the Premises;
(ii) Comprehensive general liability insurance which includes the
following coverages: owners protective; personal injury;
occurrence property damage; and employers and blanket contractual
liability. Such policies shall contain inclusive limits of not
less than $5,000,000, provide for cross liability, and name the
Landlord and the owners of the Lands as insured;
(iii) Tenant's "all risks" legal liability insurance for the replacement
cost value of the Premises including loss of use thereof;
(iv) Automobile liability insurance on a non-owned form including
contractual liability, and on an owner's form covering all
licensed vehicles operated by or on behalf of the Tenant, which
insurance shall have inclusive limits of not less than $1,000,000;
and
(v) Any other form of insurance which the Tenant or the Landlord,
acting reasonably, or the Mortgagee requires from time to time in
form, in amounts and for risks against which a prudent tenant
would insure.
(b) All policies referred to in this Section 6.01 shall:
(i) be taken out with insurers reasonably acceptable to the Landlord;
(ii) be in a form reasonably satisfactory to the Landlord;
(iii) be non-contributing with, and shall apply only as primary and not
as excess to any other insurance available to the Landlord;
(iv) not be invalidated as respects the interests of the Landlord or
the Mortgagee by reason of any breach of or violation of any
warranty, representation, declaration or condition; and
(v) contain an undertaking by the insurers to notify the Landlord by
registered mail not less than 30 days prior to any material
change, cancellation or termination.
Certificates of insurance on the Landlord's standard form or, if required by the
Landlord, certified copies of such insurance policies, shall be delivered to the
Landlord forthwith upon request. If the Tenant fails
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to take out or to keep in force any insurance referred to in this Section
6.01 or should any such insurance not be approved by either the Landlord or
the Mortgagee and should the Tenant not commence to diligently rectify (and
thereafter proceed to diligently rectify) the situation within 48 hours after
written notice by the Landlord to the Tenant (stating, if the Landlord or the
Mortgagee, from time to time, does not approve of such insurance, the reasons
therefor) the Landlord has the right without assuming any obligation in
connection therewith, to effect such insurance at the sole cost of the Tenant
and all outlays by the Landlord shall be paid by the Tenant to the Landlord
without prejudice to any other rights or remedies of the Landlord under this
Lease.
SECTION 6.02 INCREASE IN INSURANCE PREMIUMS
The Tenant shall not keep or use in the Premises any article which may be
prohibited by any fire insurance policy in force from time to time covering
the Premises or the Development. If: (a) the conduct of business in, or
use or manner of use of the Premises; (b) or any acts or omissions of the
Tenant in the Development or any part thereof; cause or result in any
increase in premiums for any insurance carried by the Landlord with respect
to the Development, the Tenant shall pay any such increase in premiums. In
determining whether increased premiums are caused by or result from the use
or occupancy of the Premises, a schedule issued by the organization computing
the insurance rate on the Development showing the various components of such
rate, shall be conclusive evidence of the items and charges which make up
such rate.
SECTION 6.03 CANCELLATION OF INSURANCE
If any insurer under any insurance policy covering any part of the
Development or any occupant thereof cancels or threatens to cancel its
insurance policy or reduces or threatens to reduce coverage under such policy
by reason of the use of the Premises by the Tenant or by any Transferee, or
by anyone permitted by the Tenant to be upon the Premises, the Tenant shall
remedy such condition within 48 hours after notice thereof by the Landlord.
SECTION 6.04 LOSS OR DAMAGE
The Landlord shall not be liable for any death or injury arising from or out
of any occurrence in, upon, at, or relating to the Lands or Development or
damage to property of the Tenant or of others located on the Premises or
elsewhere in the Development, nor shall it be responsible for any loss of or
damage to any property of the Tenant or others from any cause, whether or not
any such death, injury, loss or damage results from the negligence of the
Landlord, its agents, employees, contractors, or others for whom it may, in
law, be responsible. Without limiting the generality of the foregoing, the
Landlord shall not be liable for any injury or damage to Persons or property
resulting from fire, explosion, falling plaster, falling ceiling tile,
falling fixtures, steam, gas, electricity, water, rain, flood, snow or leaks
from any part of the Premises or from the pipes, sprinklers, appliances,
plumbing works, roof, windows or subsurface of any floor or ceiling of the
Development or from the street or any other place or by dampness or by any
other cause whatsoever. The Landlord shall not be liable for any such damage
caused by other tenants or Persons on the Lands or in the Development or by
occupants of adjacent property thereto, or the public, or caused by
construction or by any private, public or quasi-public work. All property of
the Tenant kept or stored on the Premises shall be so kept or stored at the
risk of the Tenant only and the Tenant releases and agrees to indemnify the
Landlord and save it harmless from any claims arising out of any damage to
the same including, without limitation, any subrogation claims by the
Tenant's insurers.
SECTION 6.05 LANDLORD'S INSURANCE
The Landlord shall throughout the Term carry: (a) insurance on the
Development (excluding the foundations and excavations) and the machinery,
boilers and equipment in or servicing the Development and owned by the
Landlord or the owners of the Development (excluding any property which the
Tenant and other tenants are obliged to insure under Section 6.01 or similar
sections of their respective leases) against damage by fire and extended
perils coverage; (b) public liability and property damage insurance with
respect to the Landlord's operations in the Development; and (c) such other
form or forms of insurance as the Landlord or the Mortgagee reasonably
considers advisable. Such insurance shall be in such reasonable amounts and
with such reasonable deductibles as would be carried by a prudent owner of a
reasonably similar building, having regard to size, age and location.
Notwithstanding the Landlord's covenant in this Section and notwithstanding
any contribution by the Tenant to the cost of the Landlord's insurance
premiums, the Tenant acknowledges and agrees that: (i) the Tenant is not
relieved of any liability arising from or contributed to by its negligence or
its wilful act or omissions; (ii) no insurable interest is conferred upon the
Tenant under any insurance policies carried by the Landlord; and (iii) the
Tenant has no right to receive any proceeds of any insurance policies carried
by the Landlord.
SECTION 6.06 INDEMNIFICATION OF THE LANDLORD
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Notwithstanding any other provision of this Lease, the Tenant shall indemnify
the Landlord and save it harmless from all loss (including loss of Net Rent
and Additional Rent) claims, actions, damages, liability and expense in
connection with loss of life, personal injury, damage to property or any
other loss or injury whatsoever arising out of this Lease, or any occurrence
in, upon or at the Premises, or the occupancy or use by the Tenant of the
Premises or any part thereof, or occasioned wholly or in part by any act or
omission of the Tenant or by anyone permitted to be on the Premises by the
Tenant. If the Landlord shall, without fault on its part, be made a party to
any litigation commenced by or against the Tenant, then the Tenant shall
protect, indemnify and hold the Landlord harmless in connection with such
litigation. The Landlord may, at its option, participate in or assume
carriage of any litigation or settlement discussions relating to the
foregoing, or any other matter for which the Tenant is required to indemnify
the Landlord under this Lease. Alternatively, the Landlord may require the
Tenant to assume carriage of and responsibility for all or any part of such
litigation or discussions.
ARTICLE VII - DAMAGE AND DESTRUCTION
SECTION 7.01 NO ABATEMENT OR TERMINATION
If the Premises or Building are damaged or destroyed in whole or in part by
fire or any other occurrence, this Lease shall continue in full force and
effect and there shall be no abatement of Rent except as provided in this
Article VII.
If the Premises are at any time destroyed or damaged as a result of fire or
any other casualty required to be insured against by the Landlord under this
Lease or otherwise insured against by the Landlord and not caused or
contributed to by the Tenant, then the following provisions shall apply:
(a) if the Premises are rendered untenantable only in part, the Landlord
shall diligently repair the Premises to the extent only of its obligations
under Section 5.01 and Net Rent shall xxxxx proportionately to the portion of
the Premises rendered untenantable from the date of destruction or damage
until the Landlord's repairs have been completed;
(b) if the Premises are rendered wholly untenantable, the Landlord shall
diligently repair the Premises to the extent only of its obligations pursuant
to Section 5.01 and Net Rent shall xxxxx entirely from the date of
destruction or damage until the Landlord's repairs have been completed;
(c) if the Premises are not rendered untenantable in whole or in part, the
Landlord shall diligently perform such repairs to the Premises to the extent
only of its obligations under Section 5.01, but in such circumstances Net
Rent shall not terminate or xxxxx;
(d) upon being notified by the Landlord that the Landlord's repairs have
been substantially completed, the Tenant shall diligently perform all repairs
to the Premises which are the Tenant's responsibility under Section 5.02, and
all other work required to fully restore the Premises for use in the Tenant's
business, in every case at the Tenant's cost and without any contribution to
such cost by the Landlord, whether or not the Landlord has at any time made
any contribution to the cost of supply, installation or construction of
Leasehold Improvements in the Premises;
(e) othing in this Section shall require the Landlord to rebuild the
Premises in the condition which existed before any such damage or destruction
so long as the Premises as rebuilt will have reasonably similar facilities to
those in the Premises prior to such damage or destruction, having regard,
however, to the age of the Building at such time; and
(f) nothing in this Section shall require the Landlord to undertake any
repairs having a cost in excess of the insurance proceeds actually received
by the Landlord with respect to such damage or destruction.
SECTION 7.03 RIGHT OF TERMINATION
Notwithstanding Section 7.02, if the damage or destruction which has occurred in
the Premises is such that in the reasonable opinion of the Landlord the Premises
cannot be rebuilt or made fit for the purposes of the Tenant within 90 days of
the happening of the damage or destruction, the Landlord may, at its option,
terminate this Lease on notice to the Tenant given within 30 days after such
damage or destruction. If such notice of termination is given, Rent shall be
apportioned and paid to the date of such damage or destruction and the Tenant
shall immediately deliver vacant possession of the Premises in accordance with
the terms of this Lease.
SECTION 7.04 DESTRUCTION OF OR DAMAGE TO BUILDING
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(a) Notwithstanding anything contained in this Lease and specifically
notwithstanding the provisions of Section 7.03, if
(i) thirty-five percent (35%) or more of the Total Rentable Area of
the Building; or
(ii) a portion of the Building or of the Lands or any other
improvements on the Lands which affect access or services
essential to the Premises;
is damaged or destroyed by any cause whatsoever (irrespective of whether the
Premises are damaged or destroyed) and if, in the opinion of the Landlord
reasonably arrived at, the Total Rentable Area of the Building or the
essential portion described above, as the case may be, so damaged or
destroyed cannot be rebuilt or made fit for the purposes of the respective
tenants of such space within one hundred and eighty (180) days of the
happening of the damage or destruction; then, the Landlord may at its option
(to be exercised by written notice to the Tenant within sixty (60) days
following any such occurrence), elect to terminate this Lease. In the case
of such election, the Term and the tenancy hereby created shall expire upon
the thirtieth (30th) day after such notice is given, without indemnity or
penalty payable by, or any other recourse against the Landlord, and the
Tenant shall, within such thirty (30) day period, vacate the Premises and
surrender them to the Landlord with the Landlord having the right to re-enter
and repossess the Premises discharged of this lease and to expel all Persons
and remove all property therefrom. Net Rent and Additional Rent shall be due
and payable without reduction or abatement subsequent to the destruction or
damage and until the date of termination, unless the Premises shall have been
destroyed or damaged as well, in which event Section 7.03 shall apply.
(b) If the Landlord is entitled to, but does not elect to terminate this
Lease under Section 7.4(a), the Landlord shall, following such damage or
destruction, diligently repair if necessary that part of the Building damaged
or destroyed, but only to the extent of the Landlord's obligations under the
terms of the various leases for premises in the Building and exclusive of any
tenant's responsibilities with respect to such repair. If the Landlord
elects to repair the Building, the Landlord may do so in accordance with
plans and specifications other than those used in the original construction
of the Building.
SECTION 7.05 ARCHITECT'S CERTIFICATE
The certificate of the Architect shall bind the parties as to: (a) the
percentage of the Total Rentable Area of the Building damaged or destroyed;
(b) whether or not the Premises are rendered untenantable and the percentage
of the Premises rendered untenantable; (c) the date upon which either the
Landlord's or Tenant's work of reconstruction or repair is completed or
substantially completed and the date when the Premises are rendered
tenantable; and (d) the state of completion of any work of the Landlord or
the Tenant.
ARTICLE VIII - ASSIGNMENT, SUBLETTING AND TRANSFERS
SECTION 8.01 ASSIGNMENTS, SUBLEASES AND TRANSFERS
The Tenant shall not enter into, consent to, or permit any Transfer without
the prior written consent of the Landlord in each instance, which consent
shall not be unreasonably withheld but shall be subject to the Landlord's
rights under Section 8.02. Notwithstanding any statutory provision to the
contrary, it shall not be considered unreasonable for the Landlord to take
into account the following factors in deciding whether to grant or withhold
its consent: (a) whether such Transfer is in violation or in breach of any
covenants or restrictions made or granted by the Landlord to other tenants or
occupants or prospective tenants or occupants of the Building; (b) whether in
the Landlord's opinion, the financial background, business history and
capability of the proposed Transferee is satisfactory; and (c) if the
Transfer is to an existing tenant of the Landlord. Consent by the Landlord
to any Transfer if granted shall not constitute a waiver of the necessity for
such consent to any subsequent Transfer. This prohibition against Transfer
shall include a prohibition against any Transfer by operation of law and no
Transfer shall take place by reason of the failure of the Landlord to give
notice to the Tenant within 30 days as required by Section 8.02.
Notwithstanding anything to the contrary herein contained, the Tenant may not
assign this Lease while any Rent is in arrears hereunder or while any other
Event of Default exists hereunder. Before making any assignment of this Lease
the Tenant will pay all Rent in arrears and will remedy any Event of Default
which then exists or will cause any Event of Default to cease to exist.
SECTION 8.02 LANDLORD'S RIGHTS
If the Tenant intends to effect a Transfer, the Tenant shall give prior
notice to the Landlord of such intent specifying the identity of the
Transferee, the type of Transfer contemplated, the portion of the Premises
affected thereby, and the financial and other terms of the Transfer, and
shall provide such financial, business or other information relating to the
proposed Transferee and its principals as the Landlord or
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any Mortgagee requires, together with copies of any documents which record
the particulars of the proposed Transfer. The Landlord shall, within 30 days
after having received such notice and all requested information, notify the
Tenant either that:
(a) it consents or does not consent to the Transfer in accordance with the
provisions and qualifications of this Article VIII; or
(b) it elects to cancel this Lease as to the whole or part, as the case
may be, of the Premises affected by the proposed Transfer, in preference to
giving such consent; or
(c) it elects to take over the position of the proposed Transferee with
respect to the Transfer such that the Landlord becomes the assignee or
subtenant, as the case may be, of the Tenant on the financial terms set out
in the notice.
If the Landlord elects to terminate this Lease it shall stipulate in its
notice the termination date of this Lease, which date shall be no less than
30 days nor more than 90 days following the giving of such notice of
termination. If the Landlord elects to terminate this Lease, the Tenant
shall notify the Landlord within 10 days thereafter of the Tenant's intention
either to refrain from such Transfer or to accept termination of this Lease
or the portion thereof in respect of which the Landlord has exercised its
rights. If the Tenant fails to deliver such notice within such 10 days or
notifies the Landlord that it accepts the Landlord's termination, this Lease
will as to the whole or affected part of the Premises, as the case may be, be
terminated on the date of termination stipulated by the Landlord in its
notice of termination. If the Tenant notifies the Landlord within 10 days
that it intends to refrain from such Transfer, then the Landlord's election
to terminate this Lease shall become void.
SECTION 8.03 CONDITIONS OF TRANSFER
(a) Subject to Section 8.03(e), if there is a permitted Transfer, the
Landlord may collect Rent from the Transferee and apply the net amount
collected to the Rent payable under this Lease but no acceptance by the
Landlord of any payments by a Transferee shall be deemed a waiver of the
Tenant's covenants or by acceptance of the Transferee as tenant or a release
from the Tenant from the further performance by the Tenant of its obligations
under this Lease. Any consent by the Landlord shall be subject to the Tenant
and Transferee executing an agreement with the Landlord agreeing:
(i) that the Transferee will be bound by all of the terms of this
Lease and, except in the case of a sublease, that the Transferee
will be so bound as if it had originally executed this Lease as
tenant; and
(ii) to amend the Lease to incorporate such terms, covenants and
conditions as are necessary so that the Lease will be in
accordance with the Landlord's standard form of office lease in
use for the Building at the time of the Transfer, and so as to
incorporate any conditions imposed by the Landlord in its consent
or required by this Section 8.03.
(b) Notwithstanding any Transfer permitted or consented to by the
Landlord, including a Transfer to the Landlord pursuant to Section 8.02(c),
the Tenant making such Transfer shall remain liable under this Lease and
shall not be released from performing any of the terms of this Lease.
(c) The Landlord's consent to any Transfer shall be subject to the
condition that: (i) the net and additional rent payable by the Transferee
shall not be less than the Rent payable by the Tenant under this Lease as at
the effective date of the Transfer, (including any increases provided for in
this Lease); and (ii) if the net and additional rent to be paid by the
Transferee under such Transfer exceeds the Rent payable under this Lease, the
amount of such excess shall be paid by the Tenant to the Landlord. If the
Tenant receives from any Transferee, either directly or indirectly, any
consideration other than rent or additional rent for such Transfer, either in
the form of cash, goods or services (other than the proceeds of any financing
as the result of a Transfer involving a mortgage, charge or similar security
interest in this Lease) the Tenant shall forthwith pay to the Landlord an
amount equivalent to such consideration. The Tenant and the Transferee shall
execute any agreement required by the Landlord to give effect to the
foregoing terms.
(d) Notwithstanding the effective date of any permitted Transfer as
between the Tenant and the Transferee, all Rent for the month in which such
effective date occurs shall be paid in advance by the Tenant so that the
Landlord will not be required to accept partial payments of Rent for such
month from either the Tenant or Transferee.
(e) If a Transfer occurs as a result of the Landlord's election pursuant
to Section 8.2(c), the Landlord will apply the Rent payable by the Landlord,
as Transferee, to the Rent payable under this Lease, but otherwise the Tenant
will not be released from its covenant under this Lease or from the further
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performance of its obligations under this Lease. The Tenant will enter into
an agreement with the Landlord setting out the terms of such Transfer, which
agreement will be prepared by the Landlord or its solicitors and all legal
costs associated with such Transfer shall be paid by the Tenant.
(f) Any document evidencing any Transfer permitted by the Landlord or any
amendment of this Lease pursuant to clause 8.03(a)(ii), or setting out any
terms applicable to such Transfer or the rights and obligations of the Tenant
or Transferee thereunder including a Transfer under Section 8.2(c), shall be
prepared by the Landlord or its solicitors and all associated legal costs
shall be paid by the Tenant.
SECTION 8.04 CHANGE OF CONTROL
If the Tenant is at any time a corporation or partnership, any actual or
proposed Change of Control in such corporation or partnership shall be deemed
to be a Transfer and subject to all of the provisions of this Article VIII.
The Tenant shall make available to the Landlord or its representatives all of
its corporate or partnership records, as the case may be, for inspection at
all reasonable times, in order to ascertain whether any Change of Control has
occurred.
SECTION 8.05 NO ADVERTISING
The Tenant shall not advertise that the whole or any part of the Premises are
available for a Transfer and shall not permit any broker or other Person to
do so unless the text and format of such advertisement and the publications
in which such advertisement is to be placed are approved in writing by the
Landlord. No such advertisement shall contain any reference to the rental
rate of the Premises.
SECTION 8.06 ASSIGNMENT BY LANDLORD
The Landlord shall have the unrestricted right to sell, lease, convey or
otherwise dispose of all or any part of the Building or Lands or this Lease
or any interest of the Landlord in this Lease. To the extent that the
purchaser or assignee from the Landlord assumes the obligations of the
Landlord under this Lease, the Landlord shall thereupon and without further
agreement be released from all liability under this Lease.
ARTICLE IX - DEFAULT
SECTION 9.01 DEFAULT AND REMEDIES
If and whenever an Event of Default occurs, then without prejudice to any
other rights which it has pursuant to this Lease or at law, the Landlord
shall have the following rights and remedies, which are cumulative and not
alternative:
(a) to re-enter the Premises or any part thereof in the name of the whole
and the same to have again, repossess, and enjoy as of the Landlord's former
estate, anything herein contained to the contrary notwithstanding;
(b) to terminate this Lease, with or without notice to the Tenant, whether
or not the Landlord has, with respect to the same or another Event of
Default, previously elected or pursued a right or remedy which is
inconsistent with termination of this Lease;
(c) enter the Premises as agent of the Tenant and to relet the Premises
for whatever term, and on such terms as the Landlord in its discretion may
determine and to receive the Rent therefor and as agent of the Tenant to take
possession of any property of the Tenant on the Premises, to store such
property at the expense and risk of the Tenant or to sell or otherwise
dispose of such property in such manner as the Landlord may see fit without
notice to the Tenant; to make alterations to the Premises to facilitate their
reletting; and to apply the proceeds of any such sale or reletting first, to
the payment of any expenses incurred by the Landlord with respect to any such
reletting or sale; second, to the payment of any indebtedness of the Tenant
to the Landlord other than Rent; and third, to the payment of Rent in
arrears; with the residue to be held by the Landlord and applied in payment
of future Rent as it becomes due and payable. The Tenant shall remain liable
for any deficiency to the Landlord. If any reletting extends for a period
beyond the end of the Term, such reletting shall not constitute a termination
of this Lease, but a reletting as agent of the Tenant up to the end of the
Term and a letting thereafter by the Landlord for its own account. The
Tenant acknowledges and agrees that if the Tenant has abandoned property on
the Premises after notice from the Landlord to remove such property, the
Landlord has no obligation whatsoever to store such property for any period
of time;
(d) to remedy or attempt to remedy any default of the Tenant under this
Lease for the account of the Tenant and to enter upon the Premises for such
purposes. No notice of the Landlord's intention to
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perform such covenants need be given the Tenant unless expressly required by
this Lease. The Landlord shall not be liable to the Tenant for any loss,
injury or damage caused by acts of the Landlord in remedying or attempting to
remedy such default and the Tenant shall pay to the Landlord all expenses
incurred by the Landlord in connection with remedying or attempting to remedy
such default;
(e) to recover from the Tenant all damages, and expenses incurred by the
Landlord as a result of any breach by the Tenant including, if the Landlord
terminates this Lease, any deficiency between those amounts which would have
been payable by the Tenant for the portion of the Term following such
termination and the net amounts actually received by the Landlord during such
period of time with respect to the Premises;
(f) to recover from the Tenant the full amount of the current month's Rent
together with 3 months' instalments of Rent, all of which shall immediately
become due and payable as accelerated rent and may be held and applied by the
Landlord without interest against the last Rent due under this Lease; and
(g) if this Lease has been terminated in accordance with Section 9.01(b),
to recover from the Tenant the unamortized portion of any leasehold
improvement allowance or inducement paid or given by the Landlord under the
terms of this Lease or the Lease Proposal, calculated from the date which is
the later of the date of payment by the Landlord or the Commencement Date, on
the basis of an assumed rate of depreciation on a straight line basis to zero
over the initial Term of this Lease.
SECTION 9.02 DISTRESS
Notwithstanding any provision of this Lease or any provision of applicable
legislation, none of the goods and chattels of the Tenant on the Premises at
any time during the Term shall be exempt from levy by distress for Rent in
arrears, and the Tenant waives any such exemption. If the Landlord makes any
claim against the goods and chattels of the Tenant by way of distress, this
provision may be pleaded as an estoppel against the Tenant in any action
brought to test the right of the Landlord to levy such distress. The Tenant
acknowledges and agrees that the Landlord is entitled to levy by distress any
accelerated rent which becomes due and is payable pursuant to Section 9.01(f)
of this Lease.
SECTION 9.03 DAMAGES AND COSTS
The Tenant shall pay to the Landlord all damages and costs (including,
without limitation, all legal fees on a solicitor and his client basis)
incurred by the Landlord in enforcing or interpreting the terms of this
Lease, or with respect to any matter or thing which is the obligation of the
Tenant under this Lease, or in respect of which the Tenant has agreed to
insure, or to indemnify the Landlord.
SECTION 9.04 ALLOCATION OF PAYMENTS
The Landlord may at its option apply sums received from the Tenant against
any amounts due and payable by the Tenant under this Lease in such manner as
the Landlord sees fit.
SECTION 9.05 SURVIVAL OF OBLIGATIONS
If the Tenant has failed to fulfil its obligations under this Lease with
respect to the payment of Rent, the maintenance, repair and alteration of the
Premises and removal of improvements and fixtures from the Premises during or
at the end of the Term, such obligations and the Landlord's rights in respect
thereto shall remain in full force and effect notwithstanding the expiration,
surrender or sooner termination of the Term.
ARTICLE X - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 10.01 STATUS STATEMENT
Within 10 days after written request by the Landlord, the Tenant shall
deliver in a form supplied by the Landlord a statement or estoppel
certificate to the Landlord as to the status of this Lease, including as to
whether this Lease is unmodified and in full force and effect (or, if there
have been modifications that this Lease is in full force and effect as
modified and identifying the modification agreements); the amount of Net Rent
and Additional Rent then being paid and the dates to which same have been
paid; whether or not there is any existing or alleged default by either party
with respect to which a notice of default has been served and if there is any
such default, specifying the nature and extent thereof; and any other matters
pertaining to this Lease as to which the Landlord shall request such
statement or certificate.
SECTION 10.02 SUBORDINATION
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This Lease and all rights of the Tenant shall be subject and subordinate to any
and all Mortgages and any ground, operating, overriding or underlying leases,
from time to time in existence against the Lands and Building (including without
limitation those referred to in section 11.15 hereof). On request, the Tenant
shall acknowledge in writing the subordination of this Lease and its rights
under this Lease to any and all such Mortgages and leases and to all advances
made under such Mortgages. The form of such subordination shall be as required
by the Landlord or any Mortgagee or the lessee under any such lease.
SECTION 10.03 ATTORNMENT
The Tenant shall promptly, on request, attorn to any Mortgagee, or to the owners
of the Building and Lands, or the lessor under any ground, operating,
overriding, underlying or similar lease of all or substantially all of the
Building made by the Landlord or otherwise affecting the Building and Lands, or
the purchaser on any foreclosure or sale proceedings taken under any Mortgage,
and shall recognize such Mortgagee, owner, lessor or purchaser as the Landlord
under this Lease.
SECTION 10.04 EXECUTION OF DOCUMENTS
The Tenant irrevocably constitutes the Landlord the agent and attorney of the
Tenant for the purpose of executing any agreement, certificate, attornment or
subordination required by this Lease and for registering postponements in favour
of any Mortgagee if the Tenant fails to execute such documents within 10 days
after request by the Landlord.
ARTICLE XI - GENERAL PROVISIONS
SECTION 11.01 RULES AND REGULATIONS
The Tenant shall comply with all Rules and Regulations, and amendments thereto,
adopted by the Landlord from time to time including those set out in Schedule
"D". Such Rules and Regulations may differentiate between different types of
businesses in the Building, and the Landlord shall have no obligation to enforce
any Rule or Regulation or the provisions of any other lease against any other
tenant, and the Landlord shall have no liability to the Tenant with respect
thereto.
SECTION 11.02 DELAY
Except as expressly provided in this Lease, whenever the Landlord or Tenant is
delayed in the fulfilment of any obligation under this Lease (other than the
payment of Rent and surrender of the Premises on termination) by an unavoidable
occurrence which is not the fault of the party delayed in performing such
obligation, then the time for fulfilment of such obligation shall be extended
during the period in which such circumstances operate to delay the fulfilment of
such obligation.
SECTION 11.03 OVERHOLDING
If the Tenant remains in possession of the Premises after the end of the Term
with the consent of the Landlord but without having executed and delivered a new
lease or an agreement extending the Term, there shall be no tacit renewal of
this Lease, and the Tenant shall be deemed to be occupying the Premises as a
Tenant from month to month at a monthly Net Rent payable in advance on the first
day of each month equal to twice the monthly amount of Net Rent payable during
the last month of the Term, and otherwise upon the same terms as are set forth
in this Lease, so far as these are applicable to a monthly tenancy.
SECTION 11.04 WAIVER
If either the Landlord or Tenant excuses or condones any default by the other of
any obligation under this Lease, no waiver of such obligation shall be implied
in respect of any continuing or subsequent default.
SECTION 11.05 REGISTRATION
Neither the Tenant nor anyone claiming under the Tenant shall register this
Lease or any Transfer without the prior written consent of the Landlord. The
Tenant hereby waives any right which the Tenant may have to require the Landlord
to deliver this Lease in registrable form or to provide a plan of the Premises
acceptable to the land title office or other office of public record for
registration or filing purposes.
SECTION 11.06 NOTICES
Any notice, consent or other instrument which may be or is required to be given
under this Lease shall be
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in writing and shall be delivered in person or sent by registered mail
postage prepaid, addressed: (a) if to the Landlord: Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxx Xxxxxxx Dominion Bank Tower, 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 Attention: Vice-President and General
Manager; and (b) if to the Tenant, at the Premises. Any such notice or
other instrument shall be deemed to have been given and received on the day
upon which personal delivery is made or, if mailed, then 48 hours following
the date of mailing. Either party may give notice to the other of any change
of address and after the giving of such notice, the address therein specified
is deemed to be the address of such party for the giving of notices. If
postal service is interrupted or substantially delayed, all notices or other
instruments shall be delivered in person.
SECTION 11.07 SUCCESSORS
The rights and liabilities created by this Lease extend to and bind the
successors and assigns of the Landlord and the heirs, executors, administrators
and permitted successors and assigns of the Tenant. No rights, however, shall
enure to the benefit of any Transferee unless the provisions of Article VIII are
complied with.
SECTION 11.08 JOINT AND SEVERAL LIABILITY
If there is at any time more than one Tenant or more than one Person
constituting the Tenant, their covenants shall be considered to be joint and
several and shall apply to each and every one of them. If the Tenant is or
becomes a partnership, each Person who is a member, or shall become a member, of
such partnership or its successors shall be and continue to be jointly and
severally liable for the performance of all covenants of the Tenant pursuant to
this Lease, whether or not such Person ceases to be a member of such partnership
or its successor.
SECTION 11.09 CAPTIONS AND SECTION NUMBERS
The captions, section numbers, article numbers and table of contents appearing
in this Lease are inserted only as a matter of convenience and in no way affect
the substance of this Lease.
SECTION 11.10 EXTENDED MEANINGS
The words "hereof", "hereto" and "hereunder" and similar expressions used in
this Lease relate to the whole of this Lease and not only to the provisions in
which such expressions appear. This Lease shall be read with all changes in
number and gender as may be appropriate or required by the context. Any
reference to the Tenant includes, where the context allows, the employees,
agents, invitees and licensees of the Tenant and all others over whom the Tenant
might reasonably be expected to exercise control.
SECTION 11.11 PARTIAL INVALIDITY
All of the provisions of this Lease are to be construed as covenants even though
not expressed as such. If any such provision is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Lease and
the remaining provisions of this Lease shall remain in force and bind the
parties as though the illegal or unenforceable provision had never been included
in this Lease.
SECTION 11.12 ENTIRE AGREEMENT
This Lease and the Schedules and riders, if any, attached hereto and the Lease
Proposal, if any, and the Landlord's leasehold improvement manual, set forth the
entire agreement between the Landlord and Tenant concerning the Premises and
there are no agreements or understandings between them other than as are herein
set forth. Subject to Section 11.01, this Lease and its Schedules and riders
may not be modified except by agreement in writing executed by the Landlord and
Tenant. In the event of any inconsistency between the provisions of this Lease
and the provisions of the Lease Proposal, the provisions of this Lease shall
prevail.
SECTION 11.13 GOVERNING LAW
This Lease shall be construed in accordance with and governed by the laws of the
Province of British Columbia.
SECTION 11.14 TIME OF THE ESSENCE
Time is of the essence of this Lease.
SECTION 11.15 AUTHORITY
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The Tenant acknowledges that the Landlord has authority from Toronto Dominion
Realty Limited, 527698 British Columbia Ltd., 527700 British Columbia Ltd. and
The Cadillac Fairview Corporation Limited to enter into this Lease.
SECTION 11.16 QUIET ENJOYMENT
If the Tenant pays Rent, fully observes and performs all of its obligations
under this Lease, and there has been no Event of Default, the Tenant shall be
entitled to peaceful and quiet enjoyment of the Premises for the Term without
interruption or interference by the Landlord or any Person claiming through the
Landlord.
SECTION 11.17 INDEMNITY AGREEMENT
If any Indemnifier is named in this Lease, the Indemnifier agrees to execute and
deliver to the Landlord an Indemnity Agreement in the form attached as Schedule
"E" hereto (with blanks completed) with respect to this lease and any and all
renewals hereof; and the Tenant agrees that failure of the Indemnifier to do so
shall constitute an Event of Default.
SECTION 11.20 EXECUTION
If the Tenant is a corporation, the Tenant confirms and agrees that this Lease
has been executed by its authorized signatories and that if only one signatory
has signed this Lease, the Tenant is authorized by its articles of incorporation
or other constating documents to execute leases by such sole authorized
signatory and if this Lease is not executed under seal by the Tenant, the Tenant
is authorized by its articles of incorporation or other constating documents to
execute leases without a seal.
SECTION 11.21 PARKING
THE LANDLORD AGREES TO PROVIDE TO THE TENANT UP TO TWO (2) UNRESERVED PARKING
STALLS IN THE UNDERGROUND PARKING FACILITY IN THE BUILDING DURING THE TERM UNTIL
NOVEMBER 30, 2000 AND UP TO SIX (6) UNRESERVED PARKING STALLS FROM DECEMBER 1,
2000 FOR THE BALANCE OF THE TERM AT MONTHLY RATES, PLUS GOODS AND SERVICES TAX,
AS ESTABLISHED BY THE LANDLORD FROM TIME TO TIME FOR RANDOM USERS OF PARKING
SPACES WITHIN THE PARKING FACILITY.
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IN WITNESS WHEREOF the Landlord and Tenant have signed this Lease under seal.
PACIFIC CENTRE LEASEHOLDS LIMITED
Per: "signed"
--------------------
Authorized Signatory
Per: --------------------
Authorized Signatory
(Tenant)
TECHWEST MANAGEMENT INC.
Per: "signed"
--------------------
Authorized Signatory
Per: --------------------
Authorized Signatory
(Indemnifier)
SIDEWARE SYSTEMS INC.
Per: "signed"
--------------------
Authorized Signatory
Per: --------------------
Authorized Signatory
(Indemnifier)
BRAINTECH, INC.
Per: "signed"
--------------------
Authorized Signatory
Per: --------------------
Authorized Signatory
- 19 -
SCHEDULE "A" - LEGAL DESCRIPTION OF THE LANDS
Those lands and premises lying and being in the City of Vancouver
in the Province of British Columbia more particularly known and described as
Parcel Identifier: 000-000-000
Xxx X
Xxxxx 00
X.X. 000
Xxxx 00000
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SCHEDULE "B" - FLOOR PLAN OF THE PREMISES
- 21 -
SCHEDULE "C" - DEFINITIONS
In this Lease and in the Schedules to this Lease:
1. "ADDITIONAL RENT" means all sums of money required to be paid by the
Tenant under this Lease (except Net Rent) whether or not the same are designated
"Additional Rent" or are payable to the Landlord or otherwise.
2. "ALTERATIONS" means all repairs, replacements, improvements or
alterations to the Premises by the Tenant and the placing of a load of more than
50 lbs per square foot in any part of the Premises or the relocation of any such
load.
3. "ARCHITECT" means the architect from time to time named by the Landlord.
4. "BUILDING" means the multi-storey building known municipally as 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx and generally as Pacific Centre
Tower Four from and including the ground floor of such Building to and including
the roof thereof and including all premises rented or intended to be rented
therein, whether for office, retail, cafeteria, banking or other similar
purposes but excluding any Premises below grade which are intended for leasing
for retail or parking purposes; and the areas, buildings systems and facilities
serving the Building or having utility in connection therewith, as determined by
the Landlord, whether or not located directly under the Building, which areas
and facilities may include, without limitation, internal malls, sidewalks and
plazas, exhibit areas, storage and mechanical areas, janitor rooms, mail rooms,
telephone, mechanical and electrical rooms, stairways, escalators, elevators,
truck and receiving areas, driveways, parking facilities, loading docks and
corridors.
5. "BUSINESS TAX" means all taxes (whether imposed on the Landlord or
Tenant) attributable to the personal property, trade fixtures, business, income,
occupancy or sales of the Tenant or any other occupant of the Premises and to
any leasehold improvements installed in the Premises and to the use of the
Building or Lands by the Tenant.
6. "CAPITAL TAX" means the amount , allocated from time to time by the
Landlord to, and relating to the Lands and Building, of any capital tax payable
by the Landlord or the owners of the Lands and Building under the Corporations
Tax Act (British Columbia) as amended or replaced from time to time or any other
legislation, provincial or federal, imposing taxes on account of capital,
calculated as if the Building were the only property of the Landlord or the
owners of the Lands and Building.
7. "CHANGE OF CONTROL" means, in the case of any corporation or partnership,
the transfer or issue by sale, assignment, subscription, transmission on death,
mortgage, charge, security interest, operation of law or otherwise, of any
shares, voting rights or interest which would result in any change in the
effective control of such corporation or partnership unless such change occurs
as a result of trading in the shares of a corporation listed on a recognized
stock exchange in Canada or the United States and then only so long as the
Landlord receives assurances reasonably satisfactory to it that there will be a
continuity of management and of the business practices of such corporation
notwithstanding such Change of Control.
8. "COMMENCEMENT DATE" means the date on which the Term commences under
Section 1.02.
9. "DEVELOPMENT" means the Lands more particularly described in Schedule "A"
attached to this Lease or as such Lands may be altered, expanded or reduced from
time to time, and the improvements, buildings, equipment and facilities erected
thereon or situate from time to time therein. The Development includes those
areas designated or intended by the Landlord to be leased for office, retail,
service and storage purposes, and those areas not so designated or intended, and
all non-leasable areas, parking facilities and the shared common areas and
facilities of the Development. The Development is known generally as "Pacific
Centre".
10. An "EVENT OF DEFAULT" shall occur whenever:
(a) any Rent is in arrears and is not paid within 5 days after written
demand by the Landlord;
(b) the Tenant has breached any of its obligations in this Lease (other than
the payment of Rent) and:
(i) fails to remedy such breach within 15 days (or such shorter period
as may be provided in this Lease); or
(ii) if such breach cannot be reasonably remedied within 15 days or
such shorter period, the Tenant fails to commence to remedy such
breach within such 15 days or shorter period or thereafter fails
to proceed diligently to remedy such breach; in either case after
notice
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in writing from the Landlord;
(c) the Tenant or any Indemnifier becomes bankrupt or insolvent or takes the
benefit of any statute for bankrupt or insolvent debtors or makes any proposal,
assignment or arrangement with its creditors, or any steps are taken or
proceedings commenced by any Person for the dissolution, winding-up or other
termination of the Tenant's existence or the liquidation of its assets;
(d) a trustee, receiver, receiver/manager or like Person is appointed with
respect to the business or assets of the Tenant or any Indemnifier;
(e) the Tenant makes a sale in bulk of all or a substantial portion of its
assets other than in conjunction with a Transfer approved by the Landlord;
(f) this Lease or any of the Tenant's assets are taken under a writ of
execution;
(g) the Tenant purports to make a Transfer other than in compliance with the
provisions of this Lease;
(h) the Tenant abandons or attempts to abandon the Premises or disposes of
its goods so that there would not after such disposal be sufficient goods of the
Tenant on the Premises subject to distress to satisfy Rent for at least 3
months, or the Premises become vacant and unoccupied for a period of 10
consecutive days or more without the consent of the Landlord;
(i) any insurance policies covering any part of the Building or any occupant
thereof are actually or threatened to be cancelled or adversely changed as a
result of any use or occupancy of the Premises;
(j) if an Event of Default as defined in this paragraph occurs with respect
to any lease or agreement under which the Tenant occupies other premises in the
Building; or
(k) if the Tenant or any Indemnifier is a corporation and at any time during
the Term does not remain in good standing with the Office of the Registrar of
Companies for British Columbia.
11. "FISCAL YEAR" means (i) the period of time commencing on the Commencement
Date and ending on the last day of the next ensuing October; and (ii) thereafter
the period of time commencing on the first day of November and ending on the
last day of the next ensuing October, or (iii) the fiscal period designated by
the Landlord from time to time.
12. "INDEMNIFIER" means the Person, if any, who has executed or agreed to
execute an Indemnity Agreement substantially in the form attached to this Lease
as Schedule "E", or any other indemnity agreement in favour of the Landlord.
13. "LANDLORD" means the party named as landlord on the first page of this
Lease.
14. "LANDS" means the lands situated in the City of Vancouver in the Province
of British Columbia on which the Building is constructed, as more particularly
described in Schedule "A", or as such lands may be expanded or reduced from time
to time.
16. "LEASEHOLD IMPROVEMENTS" mean leasehold improvements in the Premises
determined according to common law, and shall include, without limitation, all
fixtures, improvements, installations, alterations and additions from time to
time made, erected or installed in the Premises by or on behalf of the Tenant or
any previous occupant of the Premises, including signs and lettering,
partitions, doors and hardware however affixed and whether or not movable, all
mechanical, electrical and utility installations and all carpeting and drapes
with the exception only of furniture and equipment not in the nature of
fixtures.
17. "MORTGAGE" means any and all mortgages, charges, debentures, security
agreements, trust deeds, hypothecs or like instruments resulting from financing,
refinancing or collateral financing (including renewals or extensions thereof)
made or arranged by the Landlord of its interest in all or any part of the
Building or Lands.
18. "MORTGAGEE" means the holder of, or secured party under, any Mortgage and
includes any trustee for bondholders.
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19. "NET RENT" means the annual rent payable by the Tenant under Section
2.02.
20. "NET RENTABLE AREA" means, in the case of premises consisting of part of
a floor, the floor area bounded by the inside surface of the exterior glass, the
office side of the corridor or other permanent partitions and the centre of
partitions that separate the premises from adjoining leasable areas (if any)
without deductions for columns or projections but after making the same
exclusions as are made in computing Rentable Area.
21. "NORMAL BUSINESS HOURS" means the hours from 8:00 a.m. to 6:00 p.m. on
Mondays through Fridays and the hours from 8:00 a.m. to 1:00 p.m. on Saturdays,
unless any such day is a statutory holiday.
22. "OPERATING COSTS" means (without duplication) any amounts paid or payable
whether by the Landlord or by others on behalf of the Landlord for maintenance,
operation, repair, replacement to and administration of the Lands and Building
or allocated by the Landlord to the Lands and Building and for services provided
generally to tenants, calculated as if the Building were 100% occupied by
tenants during the Term, including without limitation:
(a) the cost of insurance which the Landlord is obligated or permitted
to obtain under this Lease and any deductible amount applicable to
any claim made by the Landlord under such insurance;
(b) the cost of security, janitorial, landscaping, window cleaning,
garbage removal and snow removal services;
(c) the cost of heating, ventilating and air-conditioning;
(d) the cost of fuel, steam, water, electricity, telephone and other
utilities used in the maintenance, operation or administration of
the Building, including charges and imposts related to such
utilities to the extent such costs, charges and imposts are not
recovered from other tenants;
(e) salaries, wages and other amounts paid or payable for all
personnel involved in the repair, maintenance, operation, leasing,
on site management, security, supervision or cleaning of the
Building, including fringe benefits, unemployment and worker's
compensation insurance premiums, pension plan contributions and
other employment costs and the cost of engaging contractors for
the repair, maintenance, security, supervision or cleaning of the
Building;
(f) auditing, accounting, legal and other professional and consulting
fees and disbursements;
(g) the costs: (i) of repairing, operating and maintaining the
Building and the equipment serving the Building and of all
replacements and modifications to the Building or such equipment,
including those made by the Landlord in order to comply with laws
or regulations affecting the Building; (ii) incurred by the
Landlord in providing and installing energy conservation equipment
or systems and life safety systems; (iii) incurred by the
Landlord to make alterations, replacements or additions to the
Building intended to reduce operating costs, improve the operation
of the Building or maintain its operation as a first class office
building; and, (iv) incurred to replace machinery or equipment
which by its nature requires periodic replacement; all to the
extent that such costs are fully chargeable in the Fiscal Year in
which they are incurred in accordance with sound accounting
principles;
(h) the cost of the rental of all equipment, supplies, tools,
materials and signs;
(i) all costs incurred by the Landlord in contesting or appealing
Taxes or related assessments including legal, appraisal and other
professional fees, and administration and overhead costs;
(j) Capital Tax;
(k) depreciation or amortization of the costs referred to in paragraph
22(g) above as determined by the Landlord in accordance with sound
accounting principles, if such costs have not been charged fully
in the Fiscal Year in which they are incurred;
(l) interest calculated at 2 percentage points above the average daily
prime bank commercial lending rate charged during such Fiscal Year
by any Canadian chartered bank designated from time to time by the
Landlord upon the undepreciated or unamortized balance of the
costs referred to in paragraph 22(k); and
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(m) a reasonable fee for the administration and management of the
Building equal to an amount which the Landlord might reasonably
pay to a third party for the administration and management of the
Building as part of the Pacific Centre complex.
Operating Costs shall exclude or have deducted from them as the case may be:
(n) all amounts which otherwise would be included in Operating Costs
which are recovered by the Landlord from tenants (other than under
sections of their leases comparable to section 2.03 of this
Lease);
(o) such of the Operating Costs as are recovered from insurance
proceeds, to the extent such recovery represents reimbursements
for costs previously included in Operating Costs;
(p) interest on debt and capital retirement of debt;
(q) ground rent payable by the Landlord to the owner of the Lands
under any ground lease of the Lands; and
(r) all amounts which otherwise would be included in Operating Costs
which are directly attributable to the operation of the parking
garage forming part of and serving the Building. Costs incurred
in maintaining and operating the Building may be attributed by the
Landlord to the various components of the Building in accordance
with reasonable and current practices and on a basis consistent
with the nature of the particular costs being attributed, and the
costs so attributed may be allocated to the tenants of such
components accordingly.
23. "PERSON" means any person, firm, partnership or corporation, or any group
or combination of persons, firms, partnerships or corporations.
24. "PREMISES" means the premises leased to the Tenant described in Section
1.01 and includes Leasehold Improvements in such premises.
25. "PROPORTIONATE SHARE" means a fraction which has as its numerator the
Rentable Area of the Premises and as its denominator the Total Rentable Area of
the Building.
26. "RENT" means the aggregate of Net Rent and Additional Rent.
27. "RENTABLE AREA" means (a) in the case of premises used or intended to
be used for office purposes and occupying an entire floor, the floor area
bounded by the inside surface of the glass on the exterior walls, including
without limitation, washrooms, telephone, electrical and janitorial closets
and elevator lobbies; (b) in the case of premises used or intended to be used
for office purposes and consisting of part of a floor, the area computed by
multiplying the Net Rentable Area of such premises by a fraction, the
numerator of which is the aggregate floor area of the floor on which the
Premises are located (using the measurement method set out in subparagraph
(a)) and the denominator of which is the aggregate Net Rentable Area of all
office premises on such floor; and (c) in the case of premises used or
intended to be used for retail purposes, the Net Rentable Area thereof. In
calculating Rentable Area, stairs, elevator shafts, flues, stacks, pipe
shafts and vertical ducts with their own enclosing walls, any of which are
used in common, shall be excluded but no deductions or exclusions shall be
made for columns and projections necessary for the Building. The Landlord may
for the purpose of calculating the Net Rent and any Proportionate Share
change the factor referred to in subparagraph (b) from time to time to
reflect the actual ratio of the aggregate floor area of the floor on which
the Premises or part thereof are located (using the measurement method set
out in subparagraph (a)) to the aggregate Net Rentable Area of all office
premises on such floor.
28. "RULES AND REGULATIONS" means the rules and regulations adopted and
promulgated by the Landlord from time to time pursuant to Section 11.01. The
Rules and Regulations existing as at the Commencement Date are those set out in
Schedule "D".
29. "TAXES" means all taxes, levies, charges, local improvement rates and
assessments whatsoever assessed or charged against the Building and the Lands or
any part thereof by any lawful taxing authority and including any amounts
assessed or charged in substitution for or in lieu of any such taxes, but
excluding only such taxes as capital gains taxes, corporate, income, profit or
excess profit taxes to the extent such taxes are not levied in lieu of any of
the foregoing against the Building or Lands or the Landlord in respect thereof.
Taxes shall in every instance be calculated on the basis of the Total Rentable
Area of the Building being assessed as fully leased and operational.
-25-
30. "TENANT" means the party named as tenant on the first page of this Lease.
31. "TERM" means the period set out in Section 1.02.
32. "TOTAL RENTABLE AREA OF THE BUILDING" means the aggregate of the Rentable
Area of each floor in the Building intended for leasing as if each floor is
occupied by one tenant, all as determined by the Architect. The Total Rentable
Area of the Building shall: (a) exclude the main telephone, mechanical,
electrical and other utility rooms and enclosures, public lobbies on the ground
floor, and other public space common to the entire Building; and, (b) be
adjusted by the Architect from time to time to take account of any structural,
functional or other change affecting the same.
33. "TRADE FIXTURES" means trade fixtures as determined at common law, but
for greater certainty, shall not include: (a) heating, ventilating or air
conditioning systems, facilities and equipment in or serving the Premises;
(b) floor coverings affixed to the floor of the Premises; (c) light
fixtures; (d) internal stairways and doors; and, (e) any fixtures,
facilities, equipment or installations installed by or at the expense of the
Landlord pursuant to the Lease Proposal or otherwise.
34. "TRANSFER" means an assignment of this Lease in whole or in part, a
sublease of all or any part of the Premises (whether by the Tenant or by a
subtenant), any transaction whereby the rights of the Tenant under this Lease or
the rights of any subtenant or to the Premises are transferred to another, any
transaction by which any right of use or occupancy of all or any part of the
Premises is conferred upon anyone, any mortgage, charge or encumbrance of this
Lease or the Premises or any part thereof or other arrangement under which
either this Lease or the Premises become security for any indebtedness or other
obligations and includes any transaction or occurrence whatsoever (including,
but not limited to, expropriation, receivership proceedings, seizure by legal
process and transfer by operation of law), which has changed or might change the
identity of the Persons having lawful use or occupancy of any part of the
Premises or which creates a security interest in any part of the Premises,
including without limitation, any of the Leasehold Improvements.
35. "TRANSFEREE" means the Person or Persons to whom a Transfer is or is to
be made.
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SCHEDULE "D" - RULES AND REGULATIONS
1. LIFE SAFETY. (a) The Tenant shall not do or permit anything to be
done in the Premises, or bring or keep anything therein which will in any way
increase the risk of fire or the rate of fire insurance on the Building or on
property kept therein, or obstruct or interfere with the rights of other
tenants or in any way injure or annoy them or the Landlord, or violate or act
at variance with the laws relating to fires or with regulations of the Fire
Department, or with any insurance upon the Lands or Building or in any part
thereof, or violate or act in conflict with any statutes, rules and
ordinances governing health standards or with any other statute or municipal
by-law. (b)No inflammable oils or other inflammable, dangerous or explosive
materials save those approved in writing by the Landlord's insurers shall be
kept or permitted to be kept in the Premises.
2. SECURITY. (a) The Landlord shall permit the Tenant and the Tenant's
employees and all Persons lawfully requiring communication with them to have
the use, during Normal Business Hours in common with others entitled thereto,
of the main entrance and the stairways, corridors, elevators, escalators, or
other mechanical means of access leading to the Building and the Premises.
At times other than during Normal Business Hours the Tenant and the employees
of the Tenant shall have access to the Building and to the Premises only in
accordance with the Rules and Regulations and shall be required to
satisfactorily identify themselves and to register in any book which may at
the Landlord's option be kept by the Landlord for such purpose. If
identification is not satisfactory, the Landlord is entitled to prevent the
Tenant or the Tenant's employees or other Persons lawfully requiring
communication with the Tenant from having access to the Building and to the
Premises. In addition, the Landlord is not required to open the door to the
Premises for the purpose of permitting entry therein to any Person not having
a key to the Premises. (b) The Tenant shall not place or cause to be placed
any additional locks upon any doors of the Premises without the approval of
the Landlord. Two keys shall be supplied to the Tenant for each entrance
door to the Premises and all locks shall be Building standard to permit
access by the Landlord's master key. If additional keys are required, they
must be obtained from the Landlord at the cost of the Tenant. Keys or other
means of access for entrance doors to the Building will not be issued without
the written authority of the Landlord.
3. HOUSEKEEPING. (a) The Tenant shall permit window cleaners to clean the
windows of the Premises during Normal Business Hours. (b) The Tenant shall not
place any debris, garbage, trash or refuse or permit same to be placed or left
in or upon any part of the Lands or Building outside of the Premises, other than
in a location provided by the Landlord specifically for such purposes, and the
Tenant shall not allow any undue accumulation of any debris, garbage, trash or
refuse in or outside of the Premises. If the Tenant uses perishable articles or
generates wet garbage, the Tenant shall provide refrigerated storage facilities
suitable to the Landlord. (c) The Tenant shall not place or maintain any
supplies, or other articles in any vestibule or entry of the Premises, on the
adjacent footwalks or elsewhere on the exterior of the Premises or elsewhere on
the Lands or Building. (d) The sidewalks, entrances, passages, escalators,
elevators and staircases shall not be obstructed or used by the Tenant, its
agents, servants, contractors, invitees or employees for any purpose other than
ingress to and egress from the Premises and the Building. The Landlord reserves
entire control of all parts of the Lands and Building employed for the common
benefit of the tenants and without restricting the generality of the foregoing,
the sidewalks, entrances, corridors and passages not within the Premises,
washrooms, lavatories, air conditioning closets, fan rooms, janitor's closets,
electrical closets and other closets, stairs, escalators, elevator shafts,
flues, stacks, pipe shafts and ducts and shall have the right to place such
signs and appliances therein, as it deems advisable, provided that ingress to
and egress from the Premises is not unduly impaired thereby. (e) The Tenant
shall not cause or permit: any waste or damage to the Premises; any overloading
of the floors or the utility, electrical or mechanical facilities of the
Premises; any nuisance in the Premises; or any use or manner of use causing a
hazard or annoyance to other occupants of the Building or to the Landlord.
4. RECEIVING, SHIPPING, MOVEMENT OF ARTICLES. (a) The Tenant shall not
receive or ship articles of any kind except through facilities and designated
doors and at hours designated by the Landlord and under the supervision of
the Landlord. (b) Hand trucks, carryalls or similar appliances shall only be
used in the Building with the consent of the Landlord and shall be equipped
with rubber tires, slide guards and such other safeguards as the Landlord
requires. (c) The Tenant, its agents, servants, contractors, invitees or
employees, shall not bring in or take out, position, construct, install or
move any safe, business machinery or other heavy machinery or equipment or
anything liable to injure or destroy any part of the Building, including the
Premises, without first obtaining the consent in writing of the Landlord. In
giving such consent, the Landlord shall have the right in its sole
discretion, to prescribe the weight permitted and the position thereof, the
use and design of planks, skids or platforms, and to distribute the weight
thereof. All damage done to the Building, including the Premises, by moving
or using any such heavy equipment or other office equipment or furniture
shall be repaired at the expense of the Tenant. The moving of all heavy
equipment or other office furniture shall occur only by prior arrangement
with the Landlord. The cost of such moving shall be paid by the Tenant.
Safes and other heavy office equipment and machinery shall be moved through
the halls and corridors only in a manner expressly approved by the Landlord.
No freight or bulky matter of any description will be received into any part
of the Building, including the Premises, or carried in the elevators except
during hours approved by the Landlord.
5. PREVENTION OF INJURY TO PREMISES. (a) It shall be the duty of the
Tenant to assist and co-operate
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with the Landlord in preventing injury to the Premises. (b) The Tenant shall
not deface or xxxx any part of the Building, including the Premises, and
shall not drive nails, spikes, hooks or screws into the walls, floors,
ceilings or woodwork of any part of the Building, including the Premises, or
bore, drill or cut into the walls, floors, ceilings or woodwork of any part
of the Building including the Premises, in any manner or for any reason. (c)
If the Tenant desires telegraphic or telephonic connections, the Landlord,
in its sole discretion, may direct the electricians as to where and how the
wires are to be introduced. No gas pipe or electric wire will be permitted
which has not been ordered or authorized by the Landlord. No outside radio
or television antenna shall be allowed on any part of the Premises without
authorization in writing by the Landlord.
6. WINDOWS. Except for the proper use of approved blinds and drapes, the
Tenant shall not cover, obstruct or affix any object or material to any of the
skylights and windows that reflect or admit light into any part of the Building,
including, without limiting the generality of the foregoing, the application of
solar films.
7. WASHROOMS. (a) The Landlord shall permit the Tenant and the employees of
the Tenant in common with others entitled thereto, to use the washrooms on the
floor of the Building on which the Premises are situated or, in lieu thereof,
those washrooms designated by the Landlord, save and except when the general
water supply may be turned off from the public main or at such other times when
repair and maintenance undertaken by the Landlord shall necessitate the non-use
of the facilities. (b) The water closets and other apparatus shall not be used
for any purposes other than those for which they were intended, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown into them.
Any damage resulting from misuse shall be borne by the Tenant by whom or by
whose agents, servants, invitees, or employees such damage is caused.
8. USE OF PREMISES. (a) No one shall use the Premises for sleeping
apartments or residential purposes, or for the storage of personal effects or
articles other than those required for business purposes. (b) No cooking or
heating of any foods or liquids (other than the heating of water or coffee in
coffee makers or kettles) shall be permitted in the Premises without the written
consent of the Landlord. (c) The Tenant shall not install or permit the
installation or use of any machine dispensing goods for sale in the Premises or
the Building or permit the delivery of any food or beverage to the Premises
without the written approval of the Landlord or in contravention of the Rules
and Regulations. (d) The Tenant shall not permit or allow any odours, vapours,
steam, water, vibrations, noises or other undesirable effects to emanate from
the Premises or any equipment or installation therein which, in the Landlord's
opinion, are objectionable or cause any interference with the safety, comfort or
convenience of the Building to the Landlord or the occupants and tenants thereof
or their agents, servants, invitees or employees.
9. CANVASSING, SOLICITING, PEDDLING. Canvassing, soliciting and peddling in
or about the Lands and Building are prohibited.
10. BICYCLES. No bicycles or other vehicles shall be brought within any part
of the Lands or Building without the consent of the Landlord.
11. ANIMALS AND BIRDS. No animals or birds shall be brought into any part
of the Lands or Building without the consent of the Landlord.
12. SIGNS AND ADVERTISING. The Tenant shall not paint, affix, display or
cause to be painted, affixed or displayed, any sign, picture, advertisement,
notice, lettering or decoration on any part of the outside of the Building or in
the interior of the Premises which is visible from the outside of the Building.
The Landlord will prescribe a uniform pattern and location of identification
signs for tenants, to be placed on the outside of the Premises, and the Tenant
shall not paint, affix, display or cause to be painted, affixed or displayed any
sign, picture, advertisement, notice, lettering or decoration on the outside of
the Premises for exterior view without the written consent of the Landlord. Any
such signs shall remain the property of the Tenant and shall be maintained at
the Tenant's sole cost and expense. At the expiration of the Term or earlier
termination of this Lease, the Tenant shall remove any such sign, picture,
advertisement, notice, lettering or decoration from the Premises at the Tenant's
expense and shall promptly repair all damage caused by any such removal. The
Tenant's obligation to observe and perform this covenant shall survive the
expiration of the Term or earlier termination of the Lease.
13. DIRECTORY BOARD. The Tenant shall be entitled at its expense to have its
name shown upon the directory board of the Building and the Landlord shall
design the style of such identification and shall determine the number of spaces
available on the directory board for each tenant. The directory board shall be
located in an area designated by the Landlord in the main lobby of the Building.
SCHEDULE "E" - INDEMNITY AGREEMENT
THIS INDEMNITY is dated the 25TH day of JUNE, 1999.
B E T W E E N :
-00-
XXXXXXX XXXXXX XXXXXXXXXX LIMITED
(the "Landlord")
OF THE FIRST PART
- and -
SIDEWARE SYSTEMS INC. AND BRAINTECH, INC.
(collectively, the "Indemnifier")
OF THE SECOND PART
In order to induce the Landlord to enter into the Lease (the "Lease") dated the
25TH day of JUNE, 1999, and made between the Landlord and TECHWEST MANAGEMENT
INC., as Tenant, and for other good and valuable consideration, the receipt and
sufficiency whereof is hereby acknowledged, the Indemnifier hereby makes the
following indemnity and agreement (the "Indemnity") with and in favour of the
Landlord:
1. (a) The Indemnifier hereby agrees with the Landlord that at all times
during the Term of the Lease and any extensions or renewals thereof or
overholding by the Tenant under the Lease, it will (i) make the due and punctual
payment of all Rent, monies, charges and other amounts of any kind whatsoever
payable under the Lease by the Tenant whether to the Landlord or otherwise; (ii)
effect prompt and complete performance and observance of all and singular the
terms, covenants and conditions contained in the Lease on the part of the Tenant
to be kept, observed and performed; and (iii) indemnify and save harmless the
Landlord from any loss, costs or damages arising out of any failure by the
Tenant and the Indemnifier to pay the aforesaid Rent, monies, charges and other
amounts of any kind whatsoever payable under the Lease or resulting from any
failure by the Tenant and the Indemnifier to observe or perform any of the
terms, covenants and conditions contained in the Lease.
(b) The Indemnifier's covenants and obligations set out in paragraph
(a) above will not be affected by any disaffirmance, disclaimer, repudiation,
rejection, termination or unenforceability of the Lease or by any other event or
occurrence which would have the effect at law of terminating any obligations of
the Tenant prior to the termination of the Lease whether pursuant to court
proceedings or otherwise and no surrender of the Lease to which the Landlord has
not provided its written consent (all of which are referred to collectively and
individually in this Indemnity as an "Unexpected Termination"), and the
occurrence of any such Unexpected Termination shall not reduce the period of
time in which the Indemnifier's covenants and obligations hereunder apply, which
period of time includes, for greater certainty, that part of the Term of the
Lease and any extensions or renewals thereof which would have followed had the
Unexpected Termination not occurred.
2. This Indemnity is absolute, unconditional and irrevocable and the
obligations of the Indemnifier and the rights of the Landlord under this
Indemnity shall not be prejudiced, waived, released, discharged, mitigated,
impaired or affected by (a) any extension of time, indulgences or modifications
which the Landlord extends to or makes with the Tenant in respect of the
performance of any of the obligations of the Tenant (or any other obligated
Person) under the Lease; (b) any waiver by or failure of the Landlord to enforce
any of the terms, covenants and conditions contained in the Lease; (c) any
Transfer under Article VIII of the Lease by the Tenant or by any trustee,
receiver, liquidator or any other Person; (d) any consent which the Landlord
gives to any such Transfer; (e) any amendment to the Lease or any waiver by the
Tenant of any of its rights under the Lease; (f) the expiration of the Term; or
(g) any Unexpected Termination (as that term is defined in Section 1(b) above).
The obligations of the Indemnifier are as primary obligor and not as a guarantor
of the Tenant's obligations.
3. The Indemnifier hereby expressly waives notice of the acceptance of this
Indemnity and all notice of non-performance, non-payment or non-observance on
the part of the Tenant of the terms, covenants and conditions in the Lease.
Notwithstanding the foregoing but without prejudicing the foregoing, any notice
which the Landlord desires to give to the Indemnifier shall be sufficiently
given if delivered to the Indemnifier, or, if mailed, by prepaid registered mail
addressed to the Indemnifier at the Premises, or, at the Landlord's option, at
the address, if any, set forth above and every such notice is deemed to have
been given upon the day it was delivered, or if mailed, forty-eight (48) hours
after the date it was mailed. Despite what is stated above, the Indemnifier
acknowledges that if its address is stipulated as a post office box or rural
route number, then notice will be considered to have been sufficiently given to
the Indemnifier if delivered or sent by registered mail to the Premises or,
where notice cannot be given in person upon the Premises, by posting the notice
upon the Premises. The Indemnifier may designate by notice in writing a
substitute address for that set forth above and thereafter notice shall be
directed to such substitute address. If two or more Persons are named as
Indemnifier, such notice given hereunder or under the Lease shall be deemed
sufficiently given to all such Persons if delivered or mailed in the foregoing
manner to any one of such Persons.
4. If an Event of Default has occurred under the Lease or a default under
this Indemnity, the
-29-
Indemnifier waives any right to require the Landlord to (a) proceed against
the Tenant or pursue any rights or remedies against the Tenant with respect
to the Lease; (b) proceed against or exhaust any security of the Tenant held
by the Landlord; or (c) pursue any other remedy whatsoever in the Landlord's
power. The Landlord has the right to enforce this Indemnity regardless of
the acceptance of additional security from the Tenant and regardless of any
release or discharge of the Tenant by the Landlord or by others or by
operation of any law.
5. Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity is not and is not deemed to have been waived,
released, discharged, impaired or affected by reason of the release or discharge
of the Tenant in any receivership, bankruptcy, winding-up or other creditors'
proceedings or any Unexpected Termination (as that term is defined in Section
1(b) above) and shall continue with respect to the periods prior thereto and
thereafter, for and with respect to the Term as if an Unexpected Termination or
any receivership, bankruptcy, wind-up or other creditors' proceedings had not
occurred, and in furtherance hereof, the Indemnifier agrees, upon any such
Unexpected Termination or any receivership, bankruptcy, wind-up or other
creditors' proceedings, that the Indemnifier shall, at the option of the
Landlord, exercisable at any time after such Unexpected Termination or any
receivership, bankruptcy, wind-up or other creditors' proceedings, become the
Tenant of the Landlord upon the same terms and conditions as are contained in
the Lease, applied mutatis mutandis. The liability of the Indemnifier shall not
be affected by any failure of the Landlord to exercise this option, nor by any
repossession of the Premises by the Landlord provided, however, that the net
payments received by the Landlord after deducting all costs and expenses of
repossessing and reletting the Premises shall be credited from time to time by
the Landlord against the indebtedness of the Indemnifier hereunder and the
Indemnifier shall pay any balance owing to the Landlord from time to time
immediately upon demand.
6. No action or proceedings brought or instituted under this Indemnity and
no recovery in pursuance thereof shall be a bar or defence to any further action
or proceeding which may be brought under this Indemnity by reason of any further
default or default hereunder or in the performance and observance of the terms,
covenants and conditions contained in the Lease.
7. No modification of this Indemnity shall be effective unless it is in
writing and is executed by both the Indemnifier and two authorized
representatives of the Landlord.
8. The Indemnifier shall, without limiting the generality of the foregoing,
be bound by this Indemnity in the same manner as though the Indemnifier were the
Tenant named in the Lease.
9. If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) execute this Indemnity
as Indemnifier, the liability of each such individual, corporation, partnership
or other business association hereunder is joint and several. In like manner,
if the Indemnifier named in this Indemnity is a partnership or other business
association, the members of which are by virtue of statutory or general law,
subject to personal liability, the liability of each such member is joint and
several.
10. All of the terms, covenants and conditions of this Indemnity extend to
and are binding upon the Indemnifier, his, her or its heirs, executors,
administrators, successors and assigns, as the case may be, and enure to the
benefit of and may be enforced by the Landlord, the owner or owners from time to
time (other than the Landlord) of the freehold or leasehold title of the
Building and any Mortgagee.
11. The expressions "Building", "Event of Default", "Landlord", "Tenant",
"Rent", "Term", and "Premises" and other terms or expressions where used in this
Indemnity, respectively, have the same meaning as in the Lease.
12. The use of words in the singular or plural, or with a particular gender,
shall not limit the scope or exclude the application of any provision of this
Indemnity to such person or persons or circumstances as the context otherwise
permits.
13. The undersigned, as Indemnifier, hereby represents and warrants to and
covenants and agrees with the Landlord that:
(a) notwithstanding the foregoing or any performance in whole or in
part by the Indemnifier of the covenants of this Indemnity, the
Indemnifier shall not, except at the option of the Landlord, have
any entitlement to occupy the Premises or otherwise enjoy the
benefits of the Tenant under this Lease;
(b) the Indemnifier has full power and authority to enter into this
Indemnity and to perform the Indemnifier's obligations contained
herein;
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(c) this Indemnity is valid and binding upon the Indemnifier and
enforceable against the Indemnifier in accordance with its terms;
and
(d) in entering into this Indemnity, the Indemnifier, if a
corporation, is not contravening any provisions of the Company
Act (British Columbia) or the Canada Business Corporations Act
(Canada), as the case may be, as these Acts may be amended from
time to time, or any statute that replaces or supersedes those
Acts.
14. If a part of this Indemnity or the application of it to any Person
hereunder or circumstance is to any extent held or rendered invalid,
unenforceable or illegal, that part:
(a) is independent of the remainder of this Indemnity and is severable
from it, and its invalidity, unenforceability or illegality does
not affect, impair or invalidate the remainder of this Indemnity;
and
(b) continues to be applicable to and enforceable to the fullest
extent permitted by law against any Person hereunder and
circumstance, except those as to which it has been held or
rendered invalid, unenforceable or illegal.
15. The Indemnifier agrees to execute such further assurances in connection
with this Indemnity as the Landlord may reasonably require.
16. This Indemnity shall be construed in accordance with the laws of the
Province in which the Building is located.
17. This Indemnity is the sole agreement between the Landlord and the
Indemnifier relating to the indemnity and there are no other written or verbal
agreements or representations relating thereto.
18. If the Indemnifier is a corporation, the Indemnifier confirms and agrees
that this Indemnity has been executed by its authorized signatories and that if
only one signatory has signed this Indemnity, the Indemnifier is authorized by
its articles of incorporation or other constating documents to execute
indemnities by such sole authorized signatory and if this Indemnity is not
executed under seal by the Indemnifier, the Indemnifier is authorized by its
articles of incorporation or other constating documents to execute indemnities
without a seal.
19. Wherever in this Indemnity reference is made to either the Landlord or
the Tenant, the reference is deemed to apply also to the heirs, executors,
administrators, successors and assigns of the Landlord and the heirs, executors,
administrators, permitted successors, and permitted assigns of the Tenant. Any
assignment by the Landlord of any of its interests in the Lease operates
automatically as an assignment to such assignee of the benefit of this
Indemnity.
IN WITNESS WHEREOF the Landlord and the Indemnifier have signed and sealed this
Indemnity.
SIGNED, SEALED AND DELIVERED in ) PACIFIC CENTRE LEASEHOLDS LIMITED
the presence of: )
)
)
) Per:____________________________________
) Authorized Signatory
)
)
) Per:____________________________________
) Authorized Signatory
)
) (Indemnifier)
)
) SIDEWARE SYSTEMS INC.
)
)
) Per:____________________________________
) Authorized Signatory
)
)
) Per:____________________________________
) Authorized Signatory
)
) (Indemnifier)
) BRAINTECH, INC.
)
)
) Per:____________________________________
-31-
) Authorized Signatory
)
)
) Per:____________________________________
) Authorized Signatory
)
) I/We have authority to bind the
) corporation.
-32-
