Lease No: 035700
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▇▇▇▇▇▇▇▇, ▇.▇.
LEASE
Between - BENTALL PROPERTIES LTD. and
WESTMINSTER MANAGEMENT CORPORATION
as Landlord
and - APPLIED VASCULAR ENGINEERING CANADA, INC.
as Tenant
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇.
Table of Contents
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Page
Basic Terms: ............................................................... 1
.01 Area of Leased Premises ......................................... 1
.02 Basic Rent ...................................................... 1
.03 Permitted Use ................................................... 1
.04 Term ............................................................ 1
Article 1 - Demise and Term: ............................................... 2
1.01 Demise and Term ................................................. 2
1.02 Surrender of Leased Premises .................................... 2
Article 2 - Rent: .......................................................... 2
2.01 Basic Rent ...................................................... 2
2.02 Additional Rent ................................................. 3
2.03 Adjustment of Additional Rent ................................... 3
2.04 Manner and Place of Payment ..................................... 3
2.05 Irregular Calculation of Basic Rent ............................. 3
2.06 Disproportionate Allocation ..................................... 3
2.07 Net Lease Intent ................................................ 3
Article 3 - Construction and Fixturing of Leased Premises: ................. 4
3.01 Landlord's and Tenant's Work .................................... 4
3.02 Commencement of the Construction ................................ 4
3.03 Payment for Landlord's Work ..................................... 4
3.04 Acceptance of Lease Premises .................................... 4
Article 4 - Conduct of Business: ........................................... 4
4.01 Use of Premises ................................................. 4
4.02 Prohibited Uses ................................................. 4
4.03 Operations During the Term ...................................... 4
4.04 Signs and Advertising Displays .................................. 5
4.05 Nuisance and Annoyance .......................................... 5
4.06 Coin Operated Machines .......................................... 5
4.07 Loud Speakers and Other Advertising Apparatus ................... 5
4.08 Delivery of Supplies and Materials .............................. 5
4.09 Ordinances and Regulations ...................................... 5
4.10 Rules and Regulations ........................................... 5
Article 5 - Repairs: ....................................................... 6
5.01 Tenant's Repairs ................................................ 6
5.02 Perimeter Walls and Glass ....................................... 6
5.03 Landlord's Examination of Leased Premises ....................... 6
5.04 Landlord's Right to Repair ...................................... 6
5.05 Landlord's Right to Enter for Other Repairs ..................... 6
5.O6 Landlord's Repairs .............................................. 6
5.07 Landlord's Obligation to Maintain ............................... 7
5.08 Damage and Destruction .......................................... 7
5.09 Qualifications .................................................. 8
5.10 Condition of Expiration ......................................... 8
Article 6 - Common Areas and Common Facilities: ............................ 8
6.01 Tenant's Use of Parking Areas ................................... 8
6.02 Landlord's Right to Remove Vehicles ............................. 8
6.03 Control of Common Areas and Common Facilities ................... 9
6.04 Merchandise on Common Area ...................................... 9
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6.05 Customer Parking ................................................ 9
Article 7 - Assignment and Sub-letting: .................................... 9
7.01 Prohibitions .................................................... 9
7.02 Control of Corporation .......................................... 10
7.03 Assignment by Landlord .......................................... 10
Article 8 - Insurance: ..................................................... 10
8.01 Tenant to Insure ................................................ 10
8.02 Not to Affect Landlord's Insurance .............................. 10
8.03 Landlord to Insure .............................................. 10
Article 9 - Tenant Alterations: ............................................ 11
9.01 Painting, Decorating and Alterations ............................ 11
9.02 Landlord's Property ............................................. 11
9.03 Prohibitions .................................................... 11
9.04 No Liens ........................................................ 11
Article 10 - Public Utilities and Taxes: ................................... 12
10.01 Public Utilities, Business Tax and Machinery Tax ................ 12
10.02 Payment of Real Property Taxes by Landlord ...................... 12
10.03 Increase in Real Property Taxes Attributable to Tenant .......... 12
10.04 Goods and Services Tax .......................................... 12
Article 11 - Exclusion of Liability and Indemnity: ......................... 12
11.01 Exclusion of Liability .......................................... 12
11.02 Indemnification ................................................. 13
Article 12 - Landlord's Rights and Remedies: ............................... 13
12.01 Default ......................................................... 13
12.02 Consequences of Default ......................................... 14
12.03 Non-Waiver ...................................................... 15
12.04 Right of Landlord to Perform Tenant's Covenants ................. 15
12.05 Time for Payment and Legal Costs ................................ 15
12.06 Remedies Cumulative ............................................. 15
Article 13 - Mortgages and Assignment by Landlord: ......................... 16
13.01 Sale or Financing of Development ................................ 16
13.02 Subordination and Acknowledgement ............................... 16
13.03 Offset Statement ................................................ 16
13.04 Registration .................................................... 16
Article 14 - Overholding Tenant: ........................................... 16
14.01 No Tacit Renewal ................................................ 16
Article 15 - Quiet Possession: ............................................. 17
15.01 Quiet Possession ................................................ 17
Article 16 - Legal Relationships: .......................................... 17
16.01 No Partnership .................................................. 17
16.02 Joint and Several Liability ..................................... 17
16.03 Successors and Assigns .......................................... 17
Article 17 - Notices: ...................................................... 17
17.01 Notices ......................................................... 17
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Article 18 - General: ...................................................... 18
18.01 Collateral Representations and Agreements ....................... 18
18.02 Management of Development ....................................... 18
18.03 Time of the Essence ............................................. 18
18.04 Unavoidable Delays .............................................. 18
18.05 Accord and Satisfaction ......................................... 18
18.06 Competition Act ................................................. 18
18.07 Covenants ....................................................... 18
18.08 Consent or Approval of Landlord ................................. 19
18.09 For Lease Signs ................................................. 19
18.10 The Commercial Tenancy Act ...................................... 19
18.11 No Exclusivity .................................................. 19
18.12 Schedules ....................................................... 19
18.13 Applicable Law .................................................. 19
18.14 Headings ........................................................ 19
18.15 Tenant's Acceptance ............................................. 19
18.16 Arbitration ..................................................... 19
18.17 Severability .................................................... 19
Article 19 - Definitions: .................................................. 19
19.01 Additional Rent ................................................. 19
19.02 Area of Leased Premises ......................................... 20
19.03 Basic Rent ...................................................... 20
19.04 Basic Term ...................................................... 20
19.05 Building ........................................................ 20
19.06 Building Operation and Maintenance Costs ........................ 20
19.07 Commencement Date ............................................... 21
19.08 Common Areas .................................................... 21
19.09 Common Facilities ............................................... 21
19.10 Development ..................................................... 21
19.11 Development Operation and Maintenance Costs ..................... 21
19.12 Force Majeure ................................................... 21
19.13 Gross Leaseable Area ............................................ 21
19.14 HVAC Costs ...................................................... 22
19.15 Landlord's Architect ............................................ 22
19.16 Landlord's Work ................................................. 22
19.17 Lands ........................................................... 22
19.18 Lease ........................................................... 22
19.19 Lease Year ...................................................... 22
19.20 Leased Premises ................................................. 22
19.21 Other Buildings ................................................. 22
19.22 Permitted Use ................................................... 22
19.23 Prime Rate ...................................................... 22
19.24 Real Property Taxes ............................................. 22
19.25 Rent ............................................................ 22
19.26 Tax Cost ........................................................ 22
19.27 Tenant's Proportionate Share .................................... 22
19.28 Tenant's Work ................................................... 23
19.29 Term ............................................................ 23
19.30 Year of the Term ................................................ 23
Article 20 - Special Clauses: .............................................. 23
20.01 Early Occupancy ................................................. 23
20.02 Delayed Occupancy ............................................... 23
20.03 Tenant Improvement Allowance .................................... 23
20.04 Deposit ......................................................... 24
SCHEDULES: ................................................................. 25
Schedule A Plan of the Premises ......................................... 25
Schedule B Landlord's Work .............................................. 26
Schedule C Signage ...................................................... 27
Schedule D Omitted ......................................................
Schedule E Environmental Covenants ...................................... 29
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THIS LEASE made the 10TH day of AUGUST, 1994.
BETWEEN:
BENTALL PROPERTIES LTD.,
a body corporate, having its head office at Suite
3100, Three Bentall Centre, in the City of
Vancouver, in the Province of British Columbia
and
WESTMINSTER MANAGEMENT CORPORATION, a body
corporate, having a business office at ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of Vancouver, in
the Province of British Columbia
(collectively the "Landlord")
OF THE FIRST PART
AND:
APPLIED VASCULAR ENGINEERING CANADA, INC., a body
corporate, having a busineas office at Suite No.
260 13155 Delf Avenue, in the City of Richmond,
in the Province of British Columbia, V6V 2A2 (the
"Tenant")
OF THE SECOND PART
WHEREAS:
(A) by agreement dated July 7, 1994 (the "Agreement") the Landlord and the
Tenant agreed to enter into a lease with respect to the Leased Premises; and
(B) the Landlord has represented to the Tenant that the Landlord is the
registered owner of the Lands, subject however to such liens, charges and
encumbrances as are registered against the title thereto as at the date hereof,
and has constructed, or is in the process of constructing, improvements thereon,
including the Building generally in accordance with the plans set forth in
Schedule "A";
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the rents,
covenants and agreements hereinafter reserved and contained, the parties agree
to this Lease of the Leased Premises on the terms and conditions set forth
herein:
BASIC TERMS
.01 Area of Leased Premises: approximately 8,000 square feet
.02 Basic Pent: Term Per Annum Per Month Per Square Foot
---- --------- --------- ---------------
Yr. 1-5 $50,000.00 $4,166.67 $6.25
.03 Permitted Use: The Premises shall be used for the purposes of
conducting the business of research and
development, assembly, service and distribution
of medical devices, plus associated
administrative offices.
.04 Term: Five (5) years
The foregoing Basic Terms are agreed to by the Landlord and the Tenant and
any reference in this Lease to any one of the same shall include the provisions
set forth above with respect thereto and in addition any more specific
definition or reference hereinafter provided.
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ARTICLE 1
Demise and Term
1.01 Demise and Term
The Landlord does hereby demise and lease unto the Tenant the Leased
Premises to have and to hold for and during the Term. For so long as the Tenant
duly and punctually pays the Rent, and performs and observes its covenants
herein undertaken, the Tenant shall be entitled for the benefit of the Leased
Premises to enjoy, upon the terms and conditions established or altered pursuant
to this Lease, the use in common with others entitled thereto of the Common
Areas and the Common Facilities.
1.02 Surrender of Leased Premises
(A) Upon the expiration or sooner termination of this Lease, the Tenant shall
vacate and surrender to the Landlord the Leased Premises in accordance with the
provisions of this Lease. Except to the extent as otherwise expressly agreed by
the Landlord in writing; no leasehold improvements, trade fixtures, furniture or
equipment shall be removed by the Tenant from the Leased Premises either during
or at the expiration or sooner termination of the Term except that the Tenant:
(a) may at the end of the Term, if it is not in default hereunder,
remove its trade fixtures;
(b) shall at the end of the Term remove such leasehold
improvements, trade fixtures, furnishings, equipment and
inventory as the Landlord shall require to be removed;
(c) may, if it is not in default hereunder, remove its
furnishings, equipment and inventory at the end of the Term,
and also during the Term in the usual and normal course of its
business where such furnishings or equipment have become
excess for the Tenant's purposes or the Tenant is substituting
therefor new furnishings and equipment.
The Tenant shall, in the case of every removal either during or at the end of
the Term, make good any damage caused to the Leased Premises and any leasehold
improvements therein by the installation and removal.
(B) Notwithstanding the provisions of Article 1.02(A), the Tenant shall be
permitted to remove its trade fixtures from the Leased Premises at the
expiration or sooner termination of this Lease, provided the Tenant shall make
good any damage or injury caused to the Leased Premises resulting from such
removal, reasonable wear and tear excepted.
ARTICLE 2
Rent
2.01 Basic Rent
The Tenant shall pay to the Landlord for each and every Year of the
Term, the Basic Rent specified in Basic Term .02, by equal monthly instalments,
each in advance on the first day of each and every month during the Term, the
first of such monthly instalments to be paid on the Commencement Date. If the
Term commences on a day which is not the first day of a calendar month then the
instalment of Basic Rent payable on the broken portion of a calendar month at
the beginning of the Term shall be calculated at a rate per day of 1/365th of
the annual Basic Rent.
Notwithstanding anything to the contrary contained in this Lease, the
Tenant shall not be obligated to pay any Basic Rent for the first three (3)
months of the Term only. For greater certainty, the Tenant acknowledges and
agrees that notwithstanding the period of free Basic Rent it shall be
responsible for payments of all other amounts owing under this Lease.
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2.02 Additional Rent
The Tenant shall pay to the Landlord for each and every Lease Year or
portion thereof, the Additional Rent for such Lease Year or portion thereof. The
amount of Additional Rent which the Tenant is to pay in each Lease Year or
portion thereof shall be estimated by the Landlord in advance and the Tenant
shall pay to the Landlord such amount in equal monthly instalments in advance
during such Lease Year or the portion thereof. The amount of the estimated
Additional Rent may be adjusted, from time to time, during a Lease Year by the
Landlord giving notice to the Tenant, in which event the remaining payments to
be made by the Tenant as aforesaid in such Lease Year shall be adjusted
accordingly. All remedies of the Landlord on non-payment of rent shall be
applicable to the Additional Rent and the obligation of the Tenant to pay any
monies pursuant to this Lease shall survive the expiration or sooner termination
of this Lease.
2.03 Adjustment of Additional Rent
Within ninety (90) days after the end of each Lease Year, the Landlord
shall furnish to the Tenant a statement of the actual amount of Additional Rent
payable by the Tenant for such preceding Lease Year and showing in reasonable
detail the information relevant and necessary to the calculation thereof. If the
amount payable by the Tenant as shown on such statement is more or less than the
Additional Rent paid by the Tenant to the Landlord for such Lease Year pursuant
to Article 2.02, the appropriate adjustment as between the Landlord and the
Tenant shall be made within fourteen (14) days of delivery of such statement.
Any payment made by the Landlord or made by the Tenant and accepted by the
Landlord in respect of any adjustment made pursuant to this Article 2.03 shall
be without prejudice to the right of the Landlord or the Tenant to claim a
re-adjustment provided such claim if made by the Tenant is made within ninety
(90) days after, or if made by the Landlord is made within one hundred twenty
(120) days after, the date of delivery of the statement referred to in this
Article 2.03. The Tenant shall have the right for a period of ninety (90) days
following receipt of the aforesaid statement to, at its sole expense, inspect
during the Landlord's normal business hours, subject to the inspection being
reasonable in all the circumstances, any record kept or held by the Landlord of
the costs or expenses claimed by the Landlord for such Lease Year and the
Landlord shall make its said records available accordingly.
2.04 Manner and Place of Payment
All Rent and all other sums payable by the Tenant to the Landlord
hereunder shall be paid to the Landlord at the office of the Landlord
hereinafter set forth, or at such other place as the Landlord may in writing,
from time to time, direct, without notice or demand, except as otherwise
specifically provided herein, and without deduction, set off or abatement for
any reason whatsoever. The Landlord may at its option apply all or any sums
received from or due to the Tenant against amounts due and payable by the Tenant
hereunder in such manner as the Landlord sees fit, regardless of any designation
or instructions by the Tenant to the contrary. The Tenant shall pay to the
Landlord interest at a rate equal to the lesser of the maximum rate permitted by
law or the rate that is three (3%) percent per annum above the Prime Rate on all
arrears of Rent or other sums payable by the Tenant to the Landlord pursuant to
the terms hereof, from, except as otherwise specifically provided herein, the
date of default in payment, until payment is received by the Landlord.
2.05 Irregular Calculation of Basic Rent
If for any reason it is necessary to calculate Basic Rent for a period
of one or more months, but less than a Year of the Term, the same shall be
calculated on the basis of 1/12 of the Basic Rent being payable for each month.
If for any reason it becomes necessary to calculate Basic Rent for a period of
less than one month the same shall be calculated on the basis of 1/365 of the
Basic Rent being payable for each day in such period. Without restricting the
generality of the foregoing, in the event the Commencement Date occurs other
than on the first day of a month, the first instalment of Basic Rent paid by the
Tenant in accordance with Article 2.01 shall be based on the period from the
Commencement Date to and including the last day of the month in which the
Commencement Date occurs.
2.06 Disproportionate Allocation
Notwithstanding anything else herein otherwise contained, to the extent
that the Landlord, acting reasonably, determines that an item included in
Additional Rent properly related to only a portion of the Development or to a
portion of the Building, the Landlord may allocate such item to such portion of
the Development or Building, as the case may be, in which event the Tenant's
Proportionate Share, if the Leased Premises are within such portion, shall be
calculated in relation to the Gross Leaseable Area of all leaseable premises in
such portion.
2.07 Net Lease Intent
Except to that extent otherwise specifically provided herein this Lease
shall be a net lease to the Landlord such that the Basic Rent shall be received
by the Landlord free of all outgoings whatsoever, the Tenant to pay for its own
account all amounts, charges, costs, duties, fees, rates and taxes in any way
relating to the Leased Premises as well as the Additional Rent herein provided.
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ARTICLE 3
Construction and Fixturing of Leased Premises
3.01 Landlord's and Tenant's Work
The parties agree that the work to be done by the Landlord is as set
out in Schedule "B" hereto and that any additional work shall be Tenant's Work
hereunder, and the Tenant agrees to accept the Leased Premises in an "as is,
where is" condition.
The Tenant shall be responsible for its own improvements to the Leased
Premises, subject to the Landlord's prior reasonable approval of the design of
the Leased Premises.
The Landlord shall provide a space plan to assist in the parties mutual
agreement of the improvements to the Leased Premises, which mutual agreement
shall be given within five (5) business days from receipt of tbe space plan.
3.02 Commencement of the Construction
If, at any time prior to the commencement of the Tenant's Work, the
Landlord is in its opinion unable to obtain satisfactory zoning or other
government approvals including, without limiting the generality of the
foregoing, development permits, building permits, occupancy permits, lease
commitments from other tenants, construction and permanent mortgage financing or
favourable economic projections with respect to the Development or if the
Landlord's mortgagee does not consent to this Lease, then the Landlord shall
have the right and option at any time thereafter to cancel this Lease and in
such event, any money or security deposited hereunder shall be returned to the
Tenant without interest, this Lease shall thereafter be null and void and
neither party shall have any further claim, the one against the other.
3.03 Payment for Landlord's Work
All work done at the Tenant's request (including the supplying of
materials or equipment) by the Landlord or its contractors or sub-contractors in
or relating to the Leased Premises, over and above Landlord's Work, shall be
paid for by the Tenant forthwith on demand.
3.04 Acceptance of Leased Premises
The taking of possession of the Leased Premises by the Tenant to
construct the Tenant's Work shall be deemed to be conclusive proof that except
for items noted in a list prepared by the Tenant during a joint inspection by
the Tenant and the Landlord at the time of the taking of such possession, the
Leased Premises are in the condition called for by this Lease to the extent that
the Landlord is responsible therefor and that the Landlord has performed all of
the Landlord's Work with respect thereto in a good and workmanlike manner. The
itemizing of any matter in such list by the Tenant shall not preclude the
Landlord from disputing the categorization of such matter as a deficiency.
ARTICLE 4
Conduct of Business
4.01 Use of Leased Premises
The Tenant shall not use or occupy the Leased Premises or any part
thereof for any purpose other than the Permitted Use, without consent of the
Landlord first had and obtained.
4.02 Prohibited Uses
The Tenant shall not, at any time, carry on nor suffer, permit or allow
to be carried on in the Leased Premises any fire sale, distress sale, bankruptcy
sale, going-out-of-business sale, or any other business sale designed to convey
to the public that business operations are to be discontinued, an auction, a
pawn business, a mail order business or any other business which because of the
merchandise likely to be sold or the merchandising or pricing methods likely to
be used would, in the reasonable opinion of the Landlord, tend to lower the
character of the Development, or any other business or occupation which shall be
deemed by the Landlord to be a nuisance.
4.03 Operations During the Term
The Tenant acknowledges that its continued occupancy of the Leased
Premises and the regular conduct of its business therein are of the utmost
importance to the Landlord in avoiding the appearance and impression generally
created by vacant space in a development, in facilitating the leasing of vacant
space, and in the renewal of other leases, and that the Landlord will suffer
substantial damage if the Leased Premises are vacated or left vacant during the
Term even if Basic Rent is paid.
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The Tenant shall on the Commencement Date commence and thereafter
during the Term, actively and diligently carry on in the Leased Premises the
business specified as the Permitted Use, and shall without limiting the
generality of the foregoing:
(a) conduct its business in the entire Leased Premises; and
(b) remain open for business at least during normal business days
and hours for the type of business being conducted from the
Leased Premises.
The Tenant will not during the Term vacate or abandon the Leased
Premises either in full or in part.
4.04 Signs and Advertising Displays
The Tenant, after first obtaining the written approval of the Landlord
to, or at the request of the Landlord with instructions as to the
specifications, design, location and method of installation, shall at the
expense of the Tenant install, maintain and operate during such reasonable hours
as the Landlord may determine a sign in accordance with the sign criteria of the
Landlord as such criteria are set out in Schedule "C" hereto. The Tenant shall
not erect or place, or suffer to be erected or placed or maintain any other
signs of any nature or kind whatsoever either on the exterior walls of the
Leased Premises or elsewhere in the Development without the approval of the
Landlord. The Tenant shall not erect or place or suffer to be erected or placed
in the display windows of the Leased Premises, any signs, decoration, lettering
or advertising matter of any kind (including signs placed in the interior of the
Leased Premises for exterior view) without first obtaining the Landlord's
written approval, which approval may not be unreasonably withheld. All signs or
other materials, referred to in this Article 4.04 shall remain the property of
the Tenant and the Tenant shall remove the same at the expiration of the Term or
such shorter period to which the approval relates and shall make good any damage
caused by such installation or removal.
4.05 Nuisance and Annoyance
The Tenant shall not use or occupy the Leased Premises or suffer or
permit the same to be used or occupied for any unlawful purpose, or for any
dangerous, noxious or offensive trade or business, or for any purpose likely to
cause a nuisance or annoyance to the Landlord or any other tenants of the
Development nor undertake any operation likely to cause the same, nor commit or
suffer to be done any waste, damage or disfigurement or injury to the
Development or any part thereof nor permit or suffer the overloading of any
floors therein.
4.06 Coin Operated Machines
The Tenant shall not have or permit or suffer to be on the Leased
Premises any machines selling merchandise or services or providing
entertainment, whether by coins, credit cards or otherwise, unless expressly
approved by the Landlord in writing.
4.07 Loud Speakers and Other Advertising Apparatus
The Tenant shall not have or permit any public address, music broadcast
or other sound system which may be heard beyond the limits of the Leased
Premises.
4.08 Delivery of Supplies and Materials
The delivery and shipping of merchandise, supplies, fixtures and other
materials or goods of whatsoever nature to or from the Leased Premises and all
loading, unloading and handling thereof shall be done through such entrances as
designated by the Landlord and at such times and by such means as approved by
the Landlord.
4.09 Ordinances and Regulations
The Tenant shall observe and fulfil the provisions and requirements of
all statutes, orders in council, by-laws, rules and regulations, relating
directly or indirectly to the use of the Leased Premises and shall comply with
all reasonable requirements of any insurer under any policy of insurance
affecting the Development.
4.10 Rules and Regulations
The Tenant shall observe and comply with and use its best efforts to
cause its employees, agents, licensees and invitees to observe and comply with
any and all rules and regulations communicated by the Landlord to the Tenant,
from time to time, which in the judgment of the Landlord are necessary or
desirable in relation to all aspects of the use and occupancy by the Tenant of
the Leased Premises, the Building, the Common Areas and the Common Facilities
including for the reputation, care, safety and appearance of the Development,
the preservation of good order therein and the operation and maintenance
thereof, provided that such rules and regulations do not conflict with any
express provisions of this Lease and are not discriminatory against the Tenant.
The Tenant
- 5 -
specifically acknowledges that the Landlord has and shall have the right to make
rules and regulations as aforesaid
ARTICLE 5
Rent
5.01 Tenant's Repairs
The Tenant shall at all times during the Term. at its own cost and
expense, repair, maintain, operate and keep the Leased Premises, all equipment,
fixtures and mechanical systems (including heating, ventilating and
air-conditioning systems) within the Leased Premises or elsewhere (if such
equipment, fixtures or systems are provided for the use or benefit of the Leased
Premises) and any improvements now or hereafter made to the Leased Premises in
good order, firstclass condition and repair (reasonable wear and tear and
repairs which are the Landlord's responsibility pursuant to Article 5.06 hereof
only excepted) in accordance with the statutory building scheme registered
against title to the Lands and without limiting the generality of the foregoing,
the Tenant shall, during the Term, cause such good management and care to be
taken of the Leased Premises and various parts thereof that no injury to the
same shall occur and all water closets, sinks, heating and air-conditioning and
ventilating apparatus located in the Leased Premises shall be maintained in a
state of efficient and good working order. The Tenant shall decorate the Leased
Premises in a manner and to a standard acceptable to or determined by the
Landlord and shall maintain such decorating to such standards throughout the
Term. The Tenant shall be responsible for all such maintenance, repairs,
replacements and such decorating and shall promptly with due diligence, at its
sole expense, carry out any and all of the foregoing. The Tenant shall be
responsible for all janitorial services respecting the Leased Premises
(including the washing of windows therein, both inside and outside) so as to
keep the Leased Premises in a clean and tidy condition.
5.02 Perimeter Walls and Glass
The Tenant shall promptly repair or make whole all damaged glass, plate
glass, doors and windows in the Leased Premises as and whenever the same is
required.
5.03 Landlord's Examination of Leased Premises
The Landlord and any employee, servant, agent or contractor of the
Landlord shall be entitled, at any time during normal business hours and at any
time in the event of an emergency, to enter and examine the state of
maintenance, repair, decoration and cleanliness of the Leased Premises, all
equipment and fixtures within the Leased Premises and any improvements now or
hereafter made to the Leased Premises and the Landlord may give notice to the
Tenant requiring that the Tenant perform such maintenance or effect such
repairs, replacements or decoration or cleaning as is the responsibility of the
Tenant and as may be found necessary from such examination.
5.04 Landlord's Right to Repair
In the event that the Tenant fails forthwith after receipt of written
notice thereof, or within such reasonable time thereafter if for any cause
beyond the control of the Tenant it is not reasonable in the circumstances (it
being agreed that lack of finances on the part of the Tenant shall not be
treated as a cause beyond the Tenant's control), to commence and diligently
proceed to perform such maintenance or effect such repairs, replacements,
decorations or cleaning as so specified in any notice given by the Landlord, the
landlord, its employees, servants, agents or contractors may, but shall not be
obligated to, enter the Leased Premises and at the Tenant's expense, perform and
carry out the same and the Landlord in so doing shall not be liable for
inconvenience, disturbance, loss of business or other damage resulting therefrom
and in the event the Landlord expends any monies pursuant to the provisions of
this Article 5.04, the Tenant shall pay the same to the Landlord on demand with
a fee of twenty (20%) percent of such amount for the Landlord's supervisory
function and in addition shall pay interest on the aggregate of the foregoing at
the rate provided in this Lease from the date of the expenditure of such first
mentioned monies by the Landlord.
5.05 Landlord's Right to Enter for Other Repairs
The Landlord, and any employee, servant, agent or contractor of the
Landlord shall have the right to enter the Leased Premises at all times during
business hours and at any time in the case of an emergency to make such
alterations or repairs as the Landlord is required to make pursuant to the terms
of this Lease or shall deem necessary for the safety, preservation, proper
administration or improvement of the Development or any portion thereof and the
Landlord in so doing, shall not be liable for inconvenience, disturbance, loss
of business or other damage resulting therefrom.
5.06 Landlord's Repairs
The Landlord shall, from time to time, throughout the Term:
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(a) at its sole cost, carry out as soon as possible in the
circumstances after receipt of notice thereof in writing from
the Tenant, structural repairs to the foundations, exterior
walls (excluding store-fronts and glass), structural
subfloors, the structural portions of bearing walls and
structural columns and beams which interfere with or impair
the use, occupancy or safety of the Leased Premise;
(b) carry out repairs or replacements to the Common Areas and the
Common Facilities, including the heating, ventilating and
air-conditioning systems forming part of the Common
Facilities; and
(c) repair all damage to the Leased Premises which is covered by
any insurance effected by the Landlord in accordance with the
provisions of Article 8.03 hereof to the extent of the
proceeds of such insurance applicable thereto;
PROVIDED HOWEVER that if any such repairs are necessitated by the
negligence or misconduct of the Tenant, its servants, agents, contractors,
licensees, employees or others for whom in law the Tenant is responsible, the
Tenant shall pay to the Landlord on demand the cost of such repairs and a fee of
twenty (20%) percent for the Landlord's supervisory function and interest on the
aggregate amount of both of the foregoing from the date of expenditure of the
first mentioned monies by the Landlord.
PROVIDED FURTHER that in any event the Landlord shall not be
responsible for any damages, loss or injury substained by the Tenant or any
person or persons claiming through or under it, by reason of defects giving rise
to the need for such repairs or the consequence thereof, including the
inconvenience occasioned to the Tenant by the entry of the Landlord, its
employees, servants, agents or contractors on the Leased Premises to effect such
repairs.
5.07 Landlord's Obligation to Maintain
The Landlord shall maintain and keep the Common Areas and the
Common Facilities in a state of repair and cleanliness consistent with the
standard of a firstclass development of a similar nature.
5.08 Damage and Destruction
In the event of damage or destruction of the Leased Premises
of the Building by fire, lightning, earthquake, tempest or other casualty so
that:
(a) the same is damaged or destroyed to the extent that the samc
cannot with reasonable diligence be rebuilt, repaired or
restored within one hundred and twenty (120) days of the date
of damage or destruction (as determined in the opinion in
writing of the Landlord's Architect, which written opinion
shall be delivered to the Tenant within thirty (30) days of
the occurrence of such damage or destruction) or the estimated
cost of rebuilding, repairing or restoring such damage or
destruction will exceed by $75,000 or more, the anticipated
proceeds of insurance available to the Landlord for that
purpose, then, notwithstanding any other term or condition of
this Lease to the contrary, the Landlord may terminate this
Lease by notice in writing to the Tenant given within sixty
(60) days of the occurrence of such damage or destruction,
such notice to be effective as at the date of the damage or
destruction if the Leased Premises are not capable of being
utilized by the Tenant as determined by the Landlord's
Architect and otherwise to be effective at the date specified
in such notice of termination which shall not be less than
thirty (30) days following receipt of such notice by the
Tenant and in either of such events, the Rent hereby reserved
shall be forthwith payable by the Tenant to the effective date
of the termination, the Term hereby granted shall terminate as
at that date and the Landlord may as at the effective date of
termination re-enter and take possession of the Leased
Premises and deal with the same as fully and effectively as if
these presents had not been entered into. But if within the
said period of sixty (60) days, the Landlord shall not give
notice terminating this Lease, then as soon as reasonably
practicable thereafter, the Landlord shall undertake or
continue the rebuilding, repair or restoration with all
reasonable diligence and the Basic Rent hereby reserved, or a
proportionate part thereof depending upon the proportion of
the Leased Premises that are not fit for use by the Tenant for
the intended purpose of this Lease, shall ▇▇▇▇▇ until the
Leased Premises have been rebuilt and made fit for the
intended purposes of this Lease;
(b) the same is damaged or destroyed to the extent that the same
can with reasonable diligence be rebuilt, repaired or restored
within one hundred and twenty (120) days of the date of such
damage or destruction (as determined in the opinion in writing
of the Landlord's Architect, which written opinion shall be
delivered to the Tenant within thirty (30) days of the
occurrence of such damage or destruction) and the Landlord is
not otherwise entitled to terminate this Lease pursuant to
Article 5.08(a) the Landlord shall as soon as reasonably
practicable after such determination, undertake or continue
the repair of the same with all reasonable diligence provided,
however, that nothing herein
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contained shall impose any obligation upon the Landlord to
complete such repair within the said period of one hundred and
twenty (120) days and the Basic Rent hereby reserved, or a
proportionate part thereof depending upon the proportion of
the Leased Premises that are not fit for use by the Tenant for
the intended purposes of this Lease, shall ▇▇▇▇▇ until the
Leased Premises have been rebuilt and made fit for the
intended purposes of this Lease.
5.09 Qualifications
(a) For the purposes of Article 5.08 the terms "Leased Premises"
and "Building" shall be deemed not to include the Tenant's
trade fixtures, merchandise stockin-trade furniture or any
other improvements installed in the Leased Premises by or on
behalf of the Tenant including the Tenant's Work.
(b) If the Landlord rebuilds, repairs, or restores the Building or
the Leased Premises as contemplated in Article 5.08 it will
not be required to reproduce exactly the Leased Premises or
the Building or restore the same to the exact condition that
existed before the damage or destruction provided that it
reproduces or restores or rebuilds the same to a comparable
condition and configuration.
(c) The certificate of the Landlord's Architect in charge of the
rebuilding, repair or restoration shall bind the Landlord and
the Tenant as to the state and proportion of the suitability
for occupancy of the Leased Premises and as to the date upon
which the Landlord's work of reconstruction or restoration is
completed and the Leased Premises fit for the purposes of the
Tenant.
(d) Notwithstanding any of the provisions of Article 5.08 to the
contrary, in the event the damage or destruction referred to
therein is caused by the negligence or misconduct of the
Tenant, its servants, agents, employees, contractors,
licensees or other persons for whom in law the Tenant is
responsible:
(i) and this Lease is not terminated as a result of such
damage or destruction there shall be no abatement of
Basic Rent as contemplated in Article 5.08; and
(ii) the Tenant shall indemnify and hold harmless the Landlord
from and against any liabilities, damages, costs, claims,
suits or actions of any nature whatsoever suffered by or
incurred by the Landlord as a result of such damage or
destruction and this indemnity and hold harmless covenant
shall survive the expiration of the Term.
5.10 Condition of Expiration
Upon the expiration of the Term the Tenant shall surrender and deliver
up to the Landlord vacant possession of the Leased Premises, which Leased
Premises at such time, unless the expiration of the Term has occurred pursuant
to Article 5.08(a), shall be in the condition in which the same must be
maintained during the Term pursuant to Articles 5.01 and 5.02 and as the same
must otherwise be restored pursuant to Article 9.02.
ARTICLE 6
Common Areas and Common Facilities
6.01 Tenant's Use of Parking Areas
The Tenant, its employees, suppliers and other persons not licensees or
invitees and having business with the Tenant shall be prohibited from using for
parking of vehicles and loading or unloading of vehicles any part of the
customer parking areas as such may be designed and changed from time to time by
the Landlord. Tenant and employee parking shall be limited to specified times
and places, arranged so as to cause minimal interference to business within the
Development. If requested by the Landlord the Tenant shall supply its employees'
automobile license numbers to the Landlord.
6.02 Landlord's Right to Remove Vehicles
Should the Tenant, its employees, suppliers or other persons not
licensees or invitees of the Tenant park vehicles in areas not allocated for
that purpose, the Landlord shall have the right to remove the said trespassing
vehicles and the Tenant will save harmless the Landlord from any and all damages
arising therefrom and the Tenant will pay the costs of such removal.
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6.03 Control of Common Areas and Common Facilities
The Landlord shall at all times have exclusive control and management
of the Common Areas and the Common Facilities. Such control applies to signs,
use of show windows, and the Tenant's publicity visible from the Common Areas,
as well as to the use made by the Tenant and/or the public of the Common Areas.
The Landlord shall have the right to alter, vary, designate and redesignate the
Common Areas and the Common Facilities from time to time and to interfere with
the use of the Common Areas and the Common Facilities to the extent necessary to
make such alterations or variations or any other repairs required or permitted
to be made by the Landlord under this Lease.
6.04 Merchandise on Common Area
In particular, but without in any way limiting the generality of the
provisions of Article 6.03, the Tenant shall not keep, display, or sell any
merchandise on or otherwise obstruct or use any part of the Common Areas on the
Common Facilities, except as permitted by the Landlord and except for displays
included in Development promotions when recognized and permitted by the
Landlord.
6.05 Customer Parking
The Landlord shall at all times during the Term maintain for the
benefit of licensees and invitees of the Tenant parking facilities.
ARTICLE 7
Assignment and Sub-Letting
7.01 Prohibitions
The Tenant shall not assign or transfer this Lease or the Term or any
portion thereof or let or sub-let all or any part of the Leased Premises or
grant any license with respect thereto (any of the foregoing being hereinafter
called a "Transfer") without the written consent of the Landlord first had and
obtained, which consent shall not be unreasonably withheld, provided that it
shall not be unreasonable for the Landlord to withhold its consent where the
Tenant is assigning or subletting at a profit to the Tenant.
All requests to the Landlord for consent to any Transfer shall be made
to the Landlord in writing together with payment to the Landlord of one hundred
dollars ($100.00) as a deposit on account of all costs incurred by the Landlord
in considering and processing the request for consent and such information in
writing as the Landlord might reasonably require respecting a transferee
including, without limiting the generality of the foregoing, the name, address,
business experience, financial position and banking and personal references of
such transferee, and in the event the transferee is a corporation, similar
information respecting the corporporation and its principal shareholders,
officers and directors. In addition, the request shall contain a comprehensive
summary of the terms and conditions upon which the Transfer is to occur.
Notwithstanding any provisions of this Article 7.01 to the contrary,
after the Landlord receives such request and information in writing, it shall
have the option, to be exercised by written notice within thirty (30) days after
the receipt of such request and information, to terminate this Lease and the
Term hereof on not less than thirty (30) days and not more than ninety (90) days
notice to the Tenant. If the Landlord elects to terminate this Lease as
aforesaid, the Tenant shall have the right, to be exercised by written notice to
the landlord within ten (10) days after receipt of such notice of termination,
to withdraw the request for consent to the proposed Transfer, in which case the
Tenant shall not proceed with such Transfer, the notice of termination shall be
null and void and this Lease shall continue in full force and effect in
accordance with its terms.
If the Landlord consents to a Transfer, the Landlord shall have the
following rights:
(a) to require the Tenant to enter into an agreement in writing
and under seal to implement all amendments to the Lease to
give effect to the Landlord's exercise of its foregoing
rights; and
(b) to require the Transferee to enter into an agreement directly
with the Landlord to perform and observe all the terms and
conditions of the Tenant pursuant to this Lease.
Whether or not the Landlord consents to any request to Transfer, the
Tenant shall pay reasonable costs incurred by the Landlord in considering any
request for consent to Transfer and in completing any of the documentation
involved in implementing such Transfer.
PROVIDED FURTHER that, notwithstanding any other provisions of this
Article 7.01 to the contrary, neither the Transfer nor the taking of any
documentation in relation thereto shall affect the obligation of the Tenant to
perform and observe all of the terms and conditions in this Lease to be observed
and performed by the Tenant.
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7.02 Control of Corporation
If the Tenant is a corporation, other than a corporation the shares of
which are listed on any recognized stock exchange, effective control of the
corporation shall not be changed directly or indirectly by a sale, encumbrance
or other disposition of shares or otherwise howsoever without first obtaining
the written consent of the Landlord; provided that the Landlord's consent shall
not be required for any sale or other disposition of shares by present
shareholders to and between themselves or in the event of any transmission of
shares on death and provided further that the Landlord's consent shall not be
unreasonably withheld where control of the Tenant is to pass to a subsidiary or
parent of the Tenant.
7.03 Assignment by Landlord
The Landlord may assign all or part of its interest in this Lease
without the Tenant's knowledge or consent.
ARTICLE 8
Insurance
8.01 Tenant to Insure
The Tenant, at its sole cost and expense, shall take out and keep in
force during the Term, standard fire and extended coverage, and malicious damage
insurance on the stock-in-trade, furniture, fixtures, glass, improvements and
all other contents of the Leased Premises to their full replacement value, and
comprehensive general liability insurance in an amount of not less than five
million dollars ($5,000,000) and tenant's fire legal liability insurance all in
amounts and with policies in a form satisfactory to the Landlord with insurers
acceptable to the Landlord. Each such policy shall name the Landlord as an
additional insured as its interest may appear and such comprehensive public
liability insurance shall contain a provision for cross liability as between the
Landlord and the Tenant. Each policy other than public liability policies shall
provide that the insurer shall not have any right of subrogation against the
Landlord, its servants, agents or employees on account of any loss or damage
covered by such insurance or on account of payments made to discharge claims
against or liabilities of the Landlord or Tenant covered by such insurance. The
cost or premium for each and every such policy shall be paid by the Tenant. The
Tenant shall obtain from the insurers under such policies, undertakings to
notify the Landlord in writing at least thirty (30) days prior to any
cancellation or reduction in coverage thereof. If the Tenant fails to take out
or keep in force, or provide to the Landlord proof, as hereafter contemplated,
of such insurance, the Landlord shall have the right to place such insurance on
behalf of the Tenant and to pay the premium therefor and in such event, the
Tenant shall repay to the Landlord the amount paid therefor, which repayment
shall be deemed to be Additional Rent payable on the first day of the next month
following the said payment by the Landlord. The Tenant agrees to provide the
Landlord with current copies of the insurance policies or certificates of
insurance as described herein.
8.02 Not to Affect Landlord's Insurance
The Tenant will not upon the Leased Premises do or permit to be done,
or omit to do anything which causes or has the effect of causing the rate of
insurance upon the Development or any part thereof to be increased and if the
insurance rate shall be thereby increased by any action of the Tenant, the
Tenant shall pay to the Landlord on demand as Additional Rent the amount by
which the insurance premiums shall be so increased. The Tenant will not store or
permit to be stored upon or in the Leased Premises anything of a dangerous,
inflammable or explosive nature nor anything which would have the effect of
increasing the Landlord's insurance costs or of leading to the cancellation of
such insurance. It is agreed that if any insurance policy upon the Leased
Premises shall be cancelled by the insurer by reason of the use and occupation
of the Leased Premises or any part thereof by the Tenant or by any assignee,
sub-tenant, concessionaire or licensee of the Tenant, or by anyone permitted by
the Tenant to be upon the Leased Premises, the Landlord may, at its option,
forthwith enter upon the Leased Premises and rectify the situation causing such
cancellation or rate increase, and the Tenant shall forthwith on demand pay to
the Landlord the costs of the Landlord related to such rectification together
with a supervisory fee of twenty (20%) percent of such cost and with interest on
the aggregate of the foregoing from the date funds were expended by the
Landlord.
8.03 Landlord to Insure
The Landlord shall throughout the Term, carry fire insurance with
normal coverage endorsements in respect of the buildings and improvements
forming part of the Development (but excluding the Tenant's trade fixtures,
merchandise, stock-in-trade, furniture or any other improvements installed in
the Leased Premises by or on behalf of the Tenant including the Tenant's Work)
in an amount not less than ninety (90) percent of the full replacement cost
(excluding the cost of foundations, footings, underground utilities and
architects and other fees associated with these items) from time to time, on a
stated amount basis, provided that such insurance, without further consent or
notice to the Tenant, may not have a deductible amount, provided that such
deductible amount shall not exceed three (3%) percent of the amount insured
under such policy or policies. The Landlord may, but shall not be obligated to,
carry such other insurance including public liability insurance and rental loss
insurance related to the Lands or such risks and perils in relation thereto or
the Landlord's interest
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derived therein as the Landlord may so determine. All such insurance so obtained
by the Landlord shall be for the sole benefit of the Landlord and the Tenant
shall be entitled to no interest therein or benefit thereof.
ARTICLE 9
Tenant Alterations
9.01 Painting, Decorating and Alterations
The Tenant may, provided it first obtains the consent of the Landlord,
at any time and from time to time at its expense, paint and decorate, in
accordance with the manner and standard referred to in Article 5.01, the
interior of the Leased Premises and make such changes, alterations, additions
and improvements in and to the Leased Premises as will in the judgment of the
Tenant better adapt the Leased Premises for the purposes of its business;
provided, however, that no changes, alterations, additions or improvements to
the structure, any perimeter wall, the sprinkler system, the heating,
ventilating, air-conditioning, plumbing, electrical or mechanical equipment or
the concrete floor or the roof shall be made without the prior written consent
of the Landlord, and without the use of contractors or other qualified workmen
approved by the Landlord. All changes, alterations, additions and improvements,
whether structural or otherwise, shall be carried out in accordance with the
reasonable requirements or rules of the Landlord and shall comply with all
applicable statutes, regulations or bylaws of any municipal, provincial or other
governmental authority. As part of the process of the Landlord's examination and
approval of the Tenant's plans and specifications, materials may, in addition to
being submitted to the Landlord's Architect, be submitted by the Landlord to
other architects, engineers, and special consultants, and progress and
completion of the work may require supervision and/or inspection by the Landlord
or any of the foregoing persons on behalf of the Landlord. Any fees and costs
incurred by the Landlord in relation to the foregoing will be paid by the Tenant
to the Landlord within fifteen (15) days of billing. The Tenant shall pay to the
Landlord the amount of the increase for any insurance coverage of the Landlord
directly attributable to any action by the Tenant as hereinbefore in this
Article 9.01 provided and the Tenant covenants that such insurance shall not
thereby be made liable to avoidance or cancellation by the insurer by reason of
such changes, alterations, additions or improvements.
9.02 Landlord's Property
At the expiration of the Term all changes, alterations, additions and
improvements made to or installed upon or in the Leased Premises whether made
pursuant to this Article 9 or otherwise and which in any manner are attached in,
to on or under the floors, walls or ceilings (other than unattached movable
trade fixtures) shall remain upon and be surrendered to the Landlord with the
Leased Premises as part thereof, without disturbance, molestation or injury and
shall be and become the absolute property of the Landlord without any payment or
indemnity by the Landlord or any third party to the Tenant or any other party.
Notwithstanding the foregoing provisions of this Article 9.02, unless the Lease
has been terminated pursuant to Article 5.08(a) the Landlord may by notice in
writing require the Tenant to remove the aforesaid changes, alterations,
additions and improvements in whole or in part, in which event the Tenant shall
remove the same and restore to the extent so requested that Leased Premises to
the state in which they were prior to the commencement of any of the Tenant's
Work and shall make good any damage or injury caused to the Leased Premises
resulting from such installation and removal, reasonable wear and tear and the
Landlord's repair obligations only excepted. The obligations of the Tenant under
this Article 9.02 shall survive the expiration of the Term.
9.03 Prohibitions
The Tenant, its employees, agents and representatives, are expressly
prohibited from entering upon the roof of the Building or any Other Buildings
for any reason whatsoever. The Tenant shall not make any repairs, openings or
additions to any part of the exterior of the Leased Premises, nor place any
attachments, decorations, signs or displays in or upon any Common Area or the
exterior of the Leased Premises failing which the Tenant will be held
responsible for all ensuing costs and damages whether to remove such items or to
effect repairs needed as a result of such acts and shall pay the cost thereof to
the Landlord forthwith on demand together with a supervisory fee to the
Landlordof twenty (20%) percent of such cost as well as interest on the
aggregate of the foregoing from the date funds are so expended by the Landlord.
9.04 No Liens
The Tenant covenants with the Landlord that it will not permit, do, or
cause anything to be done to the Leased Premises during the period of
construction and fixturing of the Leased Premises or at any time which would
allow any lien, lis pendens, judgment or certificate of any court or any
mortgage, charge or encumbrance of any nature whatsoever to be imposed or to
remain upon the Leased Premises or the Development. In the event of the
registration of any lien or other encumbrance as aforesaid, the Tenant shall at
its own expense immediately cause the same to be discharged. Should the Tenant
fail to discharge such lien or encumbrance within two (2) days of notice from
the Landlord so to do, the Landlord shall be at liberty to pay and discharge
such lien or encumbrance and any amount so paid by the Landlord together with
any disbursements and costs incurred by the Landlord on a solicitor-client basis
together with interest on any such amounts from the date of expenditure of such
funds by the Landlord shall be paid by the Tenant to the Landlord forthwith.
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ARTICLE 10
Public Utilities and Taxes
10.01 Public Utilities, Business Tax and Machinery Tax
The Tenant shall pay and discharge as the same fall due all charges for
utilities provided to or consumer on the Leased Premises during the Term
including telephone installations, water, electrical power, gas and telephone
charges metered separately or charged separately by the authority providing the
same to the Leased Premises as well as any charges of any such authority based
thereon for treatment or other facilities and all other charges similar in
nature, and shall also pay and discharge as the same fall due all business taxes
and rates, floor space and personal property taxes, licence fees or similar fees
which may be imposed by any municipal, legislative or other authority in respect
of the use or occupancy of the Leased Premises or any personal property situate
thereon or in respect of any fixtures, machinery, equipment or apparatus
installed in the Leased Premises (or elsewhere in the Development by the
Tenant).
PROVIDED ALWAYS that if any of the aforesaid utilities are provided to
the Leased Premises through a common metering device or on any other shared
basis with any other premises or portions of the Building or the Development,
the Tenant shall pay to the Landlord forthwith on demand, from time to time by
the Landlord, the Tenant's share of the cost thereof based on such allocation as
the Landlord may reasonably determine in relation to the other premises or
portions of the Building or the Development being so served.
10.02 Payment of Real Property Taxes by Landlord
The Landlord shall, without derogating from any of the Tenant's
obligations with respect to payment of Additional Rent, pay or cause to be paid
when due to the municipality or other taxing authorities having jurisdiction all
Real Property Taxes, PROVIDED ALWAYS that the Landlord may postpone such payment
to the extent permitted by law if pursuing in good faith any appeal against the
imposition thereof.
10.03 Increase in Real Property Taxes Attributable to Tenant
The Tenant shall from time to time if requested by the Landlord, pay to
the Landlord forthwith on demand by the Landlord, an amount equal to any
increase in the amount of Real Property Taxes by reason of any installation,
alteration, or use made in or to the Leased Premises by or for the benefit of
the Tenant or any party claiming by or through the Tenant
10.04 Goods and Services Tax
Despite any other section or clause of this Lease, the Tenant shall pay
to the Landlord upon demand an amount equal to any and all Goods and Services
Tax, it being the intention of the parties that the Landlord shall be fully
reimbursed by the Tenant with respect to any and all Goods and Services Tax at
the full tax rate applicable from time to time in respect of the Rent payable
for the lease of the Leased Premises pursuant to this Lease. The amount of the
Goods and Services Tax so payable by the Tenant shall be calculated by the
Landlord in accordance with the applicable legislation and shall be paid to the
Landlord at the same time as the amounts to which such Goods and Services Tax
apply and is payable to the Landlord under the terms of this Lease or upon
demand at such other time or times as the Landlord from time to time determines.
Despite any other section or clause in this Lease, the amount payable by the
Tenant under this paragraph shall be deemed not to be Rent, but the Landlord
shall have all of the same remedies for and rights of recovery of such amount as
it has for recovery of Rent under this Lease. As referred to herein "Goods and
Services Tax" means the tax imposed under part IX of the Excise Tax Act (Canada)
or any similar tax hereafter imposed in substitution therefor or in addition
thereto.
ARTICLE 11
Exclusion of Liability and Indemnity
11.01 Exclusion of Liability
It is agreed between the Landlord and the Tenant that:
(a) the Landlord, its agents, servants and employees shall not be
liable for damage or injury to any property of the Tenant
which is entrusted to the care or control of the Landlord, its
agents, servants or employees;
(b) the Landlord, its agents, servants and employees shall not be
liable nor responsible in any way for any personal or
consequential injury of any nature whatsoever that may be
suffered or sustained by the Tenant or any employee, agent,
customer, invitee or licensee of the Tenant or any other
person who may be upon the Leased Premises or the Development
or for any loss of or damage or injury to any property
belonging to the Tenant or to its employees or to any other
person while such property is on the Leased Premises or the
Development and, in particular (without limiting the
generality of the
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foregoing) the Landlord shall not be liable for any damage or
damages of any nature whatsoever to any such property caused
by the failure by reason of a breakdown or other cause, to
supply adequate drainage, snow or ice removal, or by reason of
the interruption of any public utility or service or in the
event that steam, water, rain or snow may leak into, issue or
flow from any part of the Development or from the water,
steam, sprinkler, or drainage pipes or plumbing works the
same, or from another place or quarter or for any damage
caused by any thing done or omitted by any tenant, but the
Landlord shall, after notice of the same and where it is
within its obligation so to do, use all reasonable diligence
to remedy such condition, failure or interruption of service
when not directly or indirectly attributable to the Tenant,
and the Tenant shall not be entitled to any abatement of Rent
in respect of any such condition, failure or interruption of
service; and
(c) the Landlord, its agents, servants, employees or contractors
shall not be liable for any damage suffered to the Leased
Premises or the contents thereof by reason of the Landlord,
its agents, servants, employees or contractors entering upon
the Leased Premises to undertake any examination thereof or
any work therein or in the case of an emergency.
11.02 Indemnification
Notwithstanding any other provision of this Lease to the contrary, the
Tenant shall:
(a) be liable to the Landlord for; and
(b) indemnify and hold harmless the Landlord, its agents,
advisors, servants and employees from and against:
any and all liabilities, claims, suits or actions, costs, damages and expenses
(and without limiting the generality of the foregoing, any direct losses, costs,
damages and expenses of the Landlord including costs on a solicitor-client
basis) which may be brought or made against the Landlord, or which the Landlord
may pay or incur as a result of or in connection with:
(c) any breach, violation or non-performance of any covenant,
condition or agreement in this Lease set forth and contained
on the part of the Tenant to be fulfilled, kept, observed and
performed;
(d) any damage to property, including property of the Landlord,
occasioned by the operations of the Tenant's business on, or
the Tenant's occupation of, the Leased Premises; or
(e) any injury to person or persons, including death resulting at
any time therefrom, occasioned by the operation of the
Tenant's business on, or the Tenant's occupation of, the
Leased Premises;
such indemnity and hold harmless to survive the expiration of the Term.
ARTICLE 12
Landlord's Rights and Remedies
12.01 Default
If and whenever:
(a) the Rent hereby reserved, or any part thereof, be not paid
when due, or there is non-payment of any other sum which the
Tenant is obligated to pay under any provisions hereof, and
such default shall continue for ten (10) days after notice by
the Landlord requiring the Tenant to rectify the same;
(b) the Term or any goods, chattels, equipment or other personal
property of the Tenant, shall be taken or be exigible in
execution or attachment, or if a writ of execution shall issue
against the Tenant;
(c) the Tenant shall become insolvent or commit any act of
bankruptcy or become bankrupt or take the benefit of any Act
that maybe in force for bankrupt or insolvent debtors, or
become involved in a winding-up proceeding, voluntary or
otherwise, or if a receiver shall be appointed for the
business, property, affairs or revenues of the Tenant, or if
any governmental authority should take possession of the
business or property of the Tenant;
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(d) the Tenant shall fail to commence business actively and
diligently from and on the Leased Premises within thirty (30)
days after the Commencement Date;
(e) the Tenant shall make a bulk sale of its goods or move or
commence, attempt or threaten to move its goods, chattels and
equipment out of the Leased Premises (other than in the
routine course of its business) or shall, for a period of ten
(10) consecutive days (without the prior written consent of
the Landlord), fail to conduct business from the Leased
Premises;
(f) the Tenant shall vacate or abandon the Leased Premises in
whole or in part;
(g) the Tenant shall transfer or purport to Transfer any portion
or all of the Term of the Leased Premises without the written
consent of the Landlord or control of the Tenant if a
corporation is changed without the prior written consent of
the Landlord, in either case as required pursuant to Article
7;
(h) the Tenant shall fail to remedy any condition giving rise to
cancellation, threatened cancellation, reduction or threatened
reduction of any insurance policy on the Development or any
part thereof within twenty-four (24) hours after notice
thereof by the Landlord; or
(i) the Tenant shall not observe, perform and keep any other of
the covenants, agreements, provisions, stipulations and
conditions herein to be observed, performed and kept by the
Tenant and shall persist in such failure for ten (10) days
after notice by the Landlord requiring that the Tenant remedy,
correct, desist or comply (or in the case of any such breach
which reasonably would require more than ten (10) days to
rectify unless the Tenant shall commence rectification within
the said ten (10) day period and thereafter promptly and
diligently and continuously proceed with the rectification of
the breach);
then and in any of such cases at the option of the Landlord, the full amount of
the current month's and the next ensuing three (3) month's Rent shall
immediately become due and payable as Additional Rent and the Landlord may
immediately distrain for the same, together with any arrears then unpaid; and
the Landlord may without notice or any form of legal process forthwith re-enter
upon and take possession of the Leased Premises or any part thereof in the name
of the whole and remove and sell the Tenant's goods, chattels, equipment and any
other property therefrom, any rule of law or equity to the contrary
notwithstanding; and the Landlord may seize and sell such goods, chattels,
equipment and other property of the Tenant as are in the Leased Premises or at
any place to which the Tenant or any other person may have removed them in the
same manner as if they had remained and been distrained upon the Leased
Premises; and such sale may be effected in the discretion of the Landlord either
by public auction or by private treaty, and either in bulk or by individual
item, or partly by one means and partly by another, all as the Landlord in its
entire discretion may decide, and the Tenant waives and renounces the benefit of
any present or future statute or amendments thereto taking away or limiting the
Landlord's right of distress.
12.02 Consequences of Default
If and whenever the Landlord is entitled to re-enter the Leased
Premises, the Landlord may terminate this Lease and the Term by giving written
notice of termination to the Tenant or by posting notice of termination in the
Leased Premises, and in such event the Tenant will forthwith vacate and
surrender the Leased Premises. Alternatively, the Landlord may from time to time
without terminating the Tenant's obligations under this Lease, make alterations
and repairs considered by the Landlord necessary to facilitate a sub-letting and
sub-let the Leased Premises or any part thereof as agent of the Tenant for such
term or terms and at such rent or rents and upon such other terms and conditions
as the Landlord in its sole discretion considers advisable. Upon each subletting
all rent and other monies received by the Landlord from the sub-letting shall be
applied first to the payment of indebtedness other than Rent due hereunder from
the Tenant to the Landlord, second to the payment of costs and expenses of the
sub-letting including brokerage fees and solicitors fees and the cost of
alterations and repairs, and third to the payment of Rent due and unpaid
hereunder. The residue, if any, shall be held by the Landlord and applied in
payment of future Rent as it becomes due and payable. If the Rent received from
the sub-letting during a month and any surplus then held by the Landlord to the
credit of the Tenant is less than the Rent to be paid during that month by the
Tenant, the Tenant will pay the deficiency to the Landlord. The deficiency will
be calculated and paid monthly. No re-entry by the Landlord will be construed as
an election on its part to terminate this Lease unless a written notice of that
termination is given to the Tenant or posted as aforesaid. Despite a subletting
without termination, the Landlord may elect at any time to terminate this Lease
for a previous breach. If the Landlord so terminates this Lease, the Tenant
shall pay to the Landlord on demand therefor:
(a) Basic Rent and Additional Rent accrued due up to the time of
re-entry or termination, whichever is later, plus the next
three (3) months' Rent payable as Additional Rent as provided
in Article 12.01;
(b) all costs payable by the Tenant pursuant to the provisions of
this Lease up until the date of re-entry or termination,
whichever is later;
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(c) such expenses as the Landlord may incur or has incurred in
connection with re-entering or terminating and re-letting, or
collecting sums due or payable by the Tenant or realizing upon
assets seized including brokage expenses, legal fees and
disbursements determined on a full indemnity basis, and
including the expense of keeping the Leased Premises in good
order and repairing or maintaining the same or preparing the
Leased Premises for re-letting; and
(d) as liquidated damages for the loss of Rent and other income of
the Landlord expected to be derived from this Lease during the
period which would have constituted the unexpired portion of
the Term had the Lease not been so terminated, the amount, if
any, by which the rental value of the Lease Premises for such
period established by reference to the terms and provisions of
this Lease exceeds the rental value of the Leased Premises for
such period established by reference to the terms and
provisions upon which the Landlord relets them, if such
re-letting is accomplished within a reasonable time after
termination of this Lease, and otherwise with reference to all
market and other relevant circumstances. Rental value is to be
computed in each case by reducing to present worth at an
assumed interest rate of ten percent (10%) per annum all Rent
and other amounts to become payable for such period and where
the ascertainment of amounts to become payable requires the
same, the Landlord may make estimates and assumptions of fact
which will govern unless shown to be unreasonable or
erroneous;
such obligations of the Tenant to survive the expiration of the Term.
12.03 Non-Waiver
The failure of the Landlord to insist in any one or more cases upon the
strict performance of any of the covenants of this Lease or to exercise any
option herein contained shall not be construed as a waiver or a relinquishment
for the future of such covenant or option and the acceptance of Rent by the
Landlord with knowledge of the breach by the Tenant of any covenants or
conditions of this Lease shall not be deemed to be a waiver of such breach and
no waiver by the Landlord of any provisions of this Lease shall be deemed to
have been made unless expressed in writing by the Landlord.
12.04 Right of Landlord to Perform Tenant's Covenants
If at any time and so often as the same shall happen, the Tenant shall
make default in the observance or performance of any of the Tenant's covenants
herein contained, then the Landlord may, but shall not be obligated to, without
waiving or releasing the Tenant from its obligations under the terms of this
Lease, itself observe and perform the covenant or covenants in respect of which
the Tenant is in default, and in that connection may pay such monies as may be
required or as the Landlord may reasonably deem expedient and the Landlord may
thereupon charge all monies so paid and expended by it to the Tenant together
with interest thereon from the date upon which the Landlord shall have paid out
the same; provided however that if the Landlord commences and completes either
the performance of any such covenant or covenants or any part thereof, the
Landlord shall not be obliged to complete such performance or be later obliged
to act in like fashion.
12.05 Time for Payment and Legal Costs
Unless otherwise expressly provided in this Lease, all sums and costs
paid by the Landlord, including costs paid between solicitor and client, on
account of any default by the Tenant under this Lease, shall be payable to the
Landlord by the Tenant forthwith, with interest thereon at the rate aforesaid
from date of payment of such sums or costs by the Landlord.
Unless otherwise expressly provided in the Lease, all amounts (other
than Rent) required to be paid by the Tenant to the Landlord pursuant to this
Lease shall be payable on demand at the place designated by the Landlord for
payment of Rent and if not so paid within ten (10) days of such demand shall be
treated as Rent in arrears and the Landlord may, in addition to any other remedy
it may have for the recovery of the same, distrain for the amount thereof as
Rent in arrears.
12.06 Remedies Cumulative
All rights and remedies of the Landlord in this Lease contained shall
be cumulative and not alternative and are not dependent the one on the other and
mention of any particular remedy or remedies of the Landlord in respect of any
default by the Tenant shall not preclude the Landlord from any other remedy in
respect thereof, whether available at law or in equity or as expressly provided
for herein.
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ARTICLE 13
Mortgages and Assignment by Landlord
13.01 Sale or Financing of Development
The Landlord may sell, transfer, lease, mortgage, encumber or otherwise
dispose of the Development or any portion thereof or any interest of the
Landlord therein, in every case without the consent of the Tenant, and the
rights of the Landlord under this Lease may be mortgaged, charged, transferred
or assigned in conjunction therewith. The Tenant acknowledges that in the event
of the sale or lease by the Landlord of the lands or a portion thereof
containing the Leased Premises or the assignment by the Landlord of this Lease
or of any interest of the Landlord hereunder, to the extent that any such
purchaser, lessee or assignee has assumed the covenants and obligations of the
Landlord hereunder, the Landlord shall, without further written agreement, be
freed and relieved of liability upon such covenants and obligations.
13.02 Subordination and Acknowledgement
This Lease shall at the option of the Landlord or the mortgagee under
any mortgage now or hereafter existing affecting the Development, exercisable at
any time and from time to time by the Landlord or such mortgagee, be either
subject and subordinate to such mortgage and accordingly not binding upon such
mortgagee or alternatively rank prior to such mortgage and accordingly be
binding upon such mortgagee. On request at any time and from time to time of the
Landlord or such mortgagee, the Tenant shall either postpone and subordinate
this Lease or any caveat based thereon to such mortgage with the intent and
effect that this Lease and all rights of the Tenant shall be subject to the
rights of such mortgagee as fully as if the mortgage (regardless of when made)
had been made prior to the making of this Lease, or alternatively to attorn to
such mortgagee and become bound to it as its tenant of the Leased Premises for
the then expired residue of the Term and upon the terms and conditions contained
in this Lease, in each case as the Landlord or such mortgagee may require.
Without limiting the foregoing (and notwithstanding that any previous attornment
or subordination in favour of such mortgagee shall have been given) the Tenant
shall execute promptly the appropriate instrument of postponement and
subordination or alternatively the appropriate instrument of attornment, as the
case may be, in order to give effect to the foregoing.
13.03 Offset Statement
Within ten (10) days following request therefor by the Landlord, from
time to time, the Tenant shall execute and deliver to the Landlord and if
required by the Landlord, to any mortgagee, assignee, or transferee of the Lease
or the Development, a certificate in writing as to the then status of this
Lease, including whether it is in full force and effect, as modified or
unmodified, confirming the Tent payable hereunder, the state of accounts between
the Landlord and the Tenant and the existence or non-existence of defaults and
any other matters pertaining to the Lease which the Landlord shall request be
included in such certificate.
13.04 Registration
The Tenant shall not without the consent of the Landlord register this
Lease against title to the Lands. The Tenant will, at the cost and expense of
the Tenant, cause this Lease to be registered in the appropriate Land Title
Office in the Province of British Columbia upon the request of the Landlord in
the event that the Landlord requires the same to be registered in priority to
any mortgage, trust deed or trust indenture which may now or at any time
hereafter affect in whole or in part the Leased Premises or the Development and
the Tenant shall execute promptly any certificate or other instrument which may
from time to time be requested by the Landlord to give effect to the provisions
of this Article 13.04.
ARTICLE 14
Overholding Tenant
14.01 No Tacit Renewal
In the event the Tenant remains in possession of the Leased Premises
after the end of the Term and without the execution and delivery of a new lease,
there shall be no tacit renewal of this Lease and the Term hereby granted and
the Tenant shall be deemed to be occupying the Leased Premises as a Tenant from
month to month on the terms and conditions contained herein except that the
Basic Rent shall be one hundred and fifty percent (150%) of the monthly
instalment of Basic Rent required to be paid pursuant to this Lease in the
immediately preceding Year of the Term, but otherwise on the terms and
conditions of this Lease which shall be read with such changes as are
appropriate to a monthly tenancy; provided however that this provision shall not
authorize the Tenant to so overhold where the Landlord has objected to such over
holding or has required the Tenant to vacate the Leased Premises.
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ARTICLE 15
Quiet Possession
15.01 Quiet Possession
Upon the Tenant paying the Rent hereby reserved and all other charges
herein provided and observing, performing and keeping the covenants and
agreements herein contained, the Tenant shall and may peaceably possess and
enjoy the Leased Premises for the Term granted without any interruption or
disturbance from the Landlord or any person or persons lawfully claiming by,
from or under it.
ARTICLE 16
Legal Relationships
16.01 No Partnership
Nothing contained in this Lease nor in any acts of the Landlord and
Tenant pursuant to this Lease shall be deemed to create any relationship between
the parties hereto other than the relationship of Landlord and Tenant, it being
expressly provided that there is no intention to create a relationship of
partners or a joint venture.
16.02 Joint and Several Liability
Should the Tenant comprise two (2) or more persons, each of them, and
not one for the other or others, shall be jointly and severally bound with the
other or others for the due performance of the obligations of the Tenant
hereunder. Where required by the context hereof the singular shall include the
plural and the masculine gender shall include either the feminine or neuter
genders, as the case may be and vice versa.
16.03 Successors and Assigns
This Lease and everything herein contained shall enure to the benefit
of and be binding upon the parties hereto, to successors and assigns of the
Landlord, and the approved successors and assigns of the Tenant.
ARTICLE 17
Notices
17.01 Notices
Any notices herein provided or permitted to be given by the Tenant to
the Landlord shall, except in the event of actual or threatened mail strike
during which time all notices must be delivered, be sufficiently given if
delivered or sent by registered mail, postage prepaid, posted within British
Columbia addressed to the Landlord at:
Bentall Property Management
3100 - Three Bentall Centre
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇
or to such other address as might be designated in writing by the Landlord from
time to time, and any notice herein provided or permitted to be given by the
Landlord to the Tenant shall, except in the event of actual or threatened mail
strike during which time all notices must be delivered, be sufficiently given if
delivered or mailed, postage prepaid and posted within British Columbia,
addressed to the Tenant at the Leased Premises.
Notice given as aforesaid, posted in British Columbia, shall be
conclusively deemed to have been given on the third business day following the
day on which such notice was mailed, or if delivered, on the date of delivery.
The Landlord may at any time given in writing to the Tenant of a change of
address for the Landlord and from and after the giving of such notice the
address therein specified shall be deemed to be the address of the Landlord for
the giving of notice hereunder. The word "notice" in this Article 17.01 shall be
deemed to include any request, statement, demand, or other writing in this Lease
provided or permitted to be given by the Landlord to the Tenant or by the Tenant
to the Landlord.
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ARTICLE 18
General
18.01 Collateral Representations and Agreements
The Tenant acknowledges that the Leased Premises are taken without
representation of any kind on the part of the Landlord or its agent other than
as set forth herein, that the plans attached as Schedule "A" set forth the
general layout of the Building and shall not be deemed to be a representation or
agreement of the Landlord that the Building will be exactly as indicated on such
plans, and that nothing contained in the Lease shall be construed so as to
prevent the Landlord from varying or altering the location or size of parking
areas, driveways, sidewalks or from erecting additional buildings or extending
buildings after the Commencement Date and without limiting the foregoing, the
Landlord shall have the unrestricted right to add additional lands to the
Development, which upon such addition, these additional lands will be included
within the definition of the Lands and Development, to construct additional
buildings from time to time on the Lands, add or change any building, or alter
the ingress and egress to the Development and to change the loading or unloading
facilities and service entrances from time to time without in any way being
responsible to the Tenant, provided only that the Landlord shall at all times
provide reasonable access to the Leased Premises across the Lands for the
Tenant, its employees, suppliers, agents, licencees and invitees. Subject to the
foregoing and to the obligations of the Landlord to maintain at all times
adequate parking facilities, the Landlord may transfer or dispose of portions of
the Lands to the owners of abutting property, or dedicate or transfer to the
municipal authorities portions of the Lands for road-widening and other
purposes, and when and so often as the Landlord shall dispose or transfer or
dedicate any portion of the Lands, then the reference herein to the Lands shall
mean and refer to the portion of the Lands remaining after any such transfer,
disposition or dedication together with any adjacent land which may be acquired
by the Landlord on any such transfer, disposition or dedication. The Tenant
further agrees that no representative of or agent of the Landlord is or shall be
authorized or permitted to make any representation with reference to this Lease,
or to vary or modify this Lease in any way, and that this Lease contains all the
agreements and conditions made between the Landlord and the Tenant hereto
respecting the Leased Premises other than for any provisions of the Agreement,
if any, on which this Lease is based and which are specifically stated therein
to survive the execution and delivery of this Lease. Any addition to or
alteration of or change in this Lease or other agreements hereafter made or
conditions created, to be binding, must be made in writing and signed by the
Landlord and the Tenant.
18.02 Management of Development
The Tenant acknowledges to the Landlord that the Development may be
managed by such party or parties as the Landlord may in writing designate and to
all intents and purposes the manager of the Development shall be the party at
the Development authorized to deal with the Tenant on behalf of the Landlord.
18.03 Time of the Essence
Time shall be of the essence of this Lease.
18.04 Unavoidable Delays
In the event that the Landlord shall be delayed, hindered or prevented
from the performance of any covenant hereunder by Force Majeure, the performance
of such covenant shall be excused for the period during which such performance
is rendered impossible and the time for performance thereof shall be extended
accordingly, but this shall not excuse the Tenant from the prompt payment of
Rent or any other amount required to be paid by the Tenant under the provisions
of this Lease.
18.05 Accord and Satisfaction
No payment by the Tenant hereunder or receipt by the Landlord of a
lesser amount than the payment of Basic Rent or Additional Rent or any other
payments herein stipulated shall be deemed to be other than on account of the
stipulated sum, nor shall any endorsement or statement on any cheque or any
letter accompanying any cheque or payment be deemed an accord and satisfaction,
and the Landlord may accept such cheque or payment without prejudice to the
Landlord's right to recover the balance due or pursue any other remedy provided
in this Lease.
18.06 Competition Act
No provision of this Lease is intended to apply or to be enforceable to
the extent that it might give rise to any offence under the Competition Act, RSC
1970 Chapter 23 or any statute that may be substituted therefor, as from time to
time amended.
18.07 Covenants
Each of the terms and conditions of this Lease to be performed and
observed by the Tenant or by the Landlord, as the case may be, is and shall be
construed as a covenant of the party so required to perform and observe the
same.
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18.08 Consent or Approval of Landlord
Wherever and whenever the consent, approval or permission of the
Landlord is required by the Tenant pursuant to the terms of this Lease, and
unless otherwise specifically provided, the Landlord shall have the right to
withhold or grant such consent, approval or permission in its sole and arbitrary
discretion. Such consent, approval or permission must be in writing to be
effective, and such consent, approval or permissions must be obtained prior to
the taking of the action to which the same refers.
18.09 For Lease Signs
The Landlord shall have the right during the last six (6) months of the
Term to place upon the Leased Premises, a notice of reasonable dimensions
stating that the Leased Premises are for lease and the Tenant shall not obscure
or remove such notice or permit the same to be obscured or removed.
18.10 The Commercial Tenancy Act
Each of the Landlord and the Tenant waives any and all provisions of
the Commercial Tenancy Act (British Columbia) or any statute that may be
substituted therefore, as from time to time amended, to the extent that the same
are inconsistent with or conflict with the terms and conditions of this Lease.
18.11 No Exclusivity
This Lease shall not in any way be construed as giving to or conferring
upon the Tenant any rights to carry on any business or undertaking in or from
the Leased Premises to the exclusion of third parties in the Development.
18.12 Schedules
Any and all schedules attached hereto are deemed to be incorporated
into and form part hereof.
18.13 Applicable Law
This Lease shall be governed by and construed in accordance with the
laws in force in the Province of British Columbia.
18.14 Headings
The index and headings in this Lease are inserted for convenience of
reference only and shall not affect the construction of this Lease or any
provision hereof.
18.15 Tenant's Acceptance
The Tenant hereby accepts the Lease of the Leased Premises to be held
by the Tenant, subject to the conditions, restrictions and covenants set forth
herein
18.16 Arbitration
If at any time the parties herein are unable within the time specified,
or if no time is specified, then within a reasonable time to reach agreement on
any matter which is to be settled by mutual agreement, then such matter shall be
submitted and referred to a single arbitrator pursuant to the Commercial
Arbitration Act of British Columbia, whose decision shall be final and binding
on the parties hereto.
18.17 Severability
Should any provision of this Lease be unenforceable it shall be
considered separate and severable from the remaining provision of this Lease,
which shall remain in force and be binding as though the said provision had not
been included.
ARTICLE 19
Definitions
In this Lease, the following words, phrases and expressions are used
with the meanings described as follows:
19.01 "Additional Rent" for a Lease Year or portion thereof means in addition
to the Basic Rent all other amounts which shall become due and payable hereunder
by the Tenant to the Landlord and includes the amounts which is the aggregate
of:
(i) the Tenant's Proportionate Share of the HVAC Costs,
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(ii) the Tenant's Proportionate Share of the Building Operation and
Maintenance Costs,
(iii) the Tenant's Proportionate Share of the Development Operation
and Maintenance Costs, and
(iv) the Tenant's Proportionate Share of the Tax Cost.
In each case the items comprising or being deducted from the aforesaid Costs or
Cost are to be allocated to such Lease Year by the Landlord in accordance with
generally accepted accounting practice, provided that if the Term commences
other than at the beginning of a Lease Year or ends other than at the conclusion
of a Lease Year a pro rata adjustment of the aforesaid costs for such Lease
Year shall be made based on the length of the Term falling within such Lease
Year, provided further that the Tax Cost shall, unless otherwise specifically
stated in the enabling legislation giving rise thereto, be deemed to accrue
equally from day to day in the calendar year to which the same related and
shall, if adjustment is required as aforesaid, be adjusted on that basis and not
on a straight pro rata basis as provided aforesaid.
19.02 "Area of Leased Premises" means the area of the Leased Premises
measured from a perpendicular line drawn at right angles from the edge of the
roof to the ground for all exterior walls, doors and windows and from the centre
line of all interior walls separating the Leased Premises from adjoining
premises, which area for all purposes of this Lease unless otherwise determined
by recalculation of the Landlord's Architect following completion of the
Tenant's Work or any subsequent construction by the Tenant is the area set forth
in Basic Term .01.
19.03 "Basic Rent" means the annual rent payable by the Tenant to the
Landlord in accordance with Article 2.01 for each Year of the Term, being the
amount set forth in Basic Term .02.
19.04 "Basic Term" means each of those terms defined as such at the
commencement of this Lease.
19.05 "Building" means the building in which the Leased Premises are located
as shown on Schedule "A" hereto.
19.06 "Building Operation and Maintenance Costs" means all of the Landlord's
costs, charges and expenses for operating, maintaining, managing, repairing
(excluding repairs of a structural nature), rebuilding, inspecting, insuring,
supervising and administering the Building including the Common Areas and Common
Facilities of the Building, if any, and includes without limiting the generality
of the foregoing:
(a) the cost of lighting, heating, ventilating, air-conditioning
and supplying water and other utilities to the Common
Facilities and Common Areas, as aforesaid; cleaning and
janitorial services relating to the Building; repairs and
replacements to the Building other than structural repairs
required to be carried out by the Landlord pursuant to Article
5.06(a) but including any changes made to the Building,
whether or not structural in nature, required by any
governmental or other agencies which regulate the operation of
the Development, insurance premiums for any insurance required
or permitted to be carried by the Landlord pursuant to the
terms of this Lease and related only to the Building;
(b) an administration fee to the Landlord equal to fifteen (15%)
percent of the aggregate of the aforesaid costs, charges and
expenses; and
(c) depreciation, at rates determined by the Landlord, but not to
exceed the maximum permitted to the Landlord under the
provisions of the Income Tax Act, Canada, from time to time or
any legislation substituted therefore on the equipment and
machinery employed in operating or maintaining repairing or
replacing the Common Areas or the Common Facilities of the
Building, if any, and a carrying cost at the rate of two (2%)
percent above prime, from time to time, of the Canadian
chartered bank designated by the Landlord on the undepreciated
portion of the costs of such equipment and machinery;
and there shall be excluded from such costs the following:
(i) payments of principal and interest under any mortgage or
mortgages on the Development; and
(ii) corporate, income, profits or excess profits taxes assessed
upon the income of the Landlord;
and there shall be deducted from such costs the amount of proceeds actually
recovered by the Landlord from insurance and relating to damage, the cost of
repair of which was included in Building Operation and Maintenance Costs.
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19.07 "Commencement Date" means the first day of October 1994.
19.08 "Common Areas" means those areas located either in the Building or on
the Lands but not in any Other Building, that are not intended for lease and
designated (which designation may be changed from time to time) by the Landlord
as Common Areas set aside by the Landlord for the common or joint use and
benefit of the Tenant, its employees, customers and other entities in common
with others entitled to the use and benefit of such areas in the manner and for
the purposes established or altered pursuant to the terms of this Lease.
19.09 "Common Facilities" means the electrical, heating, ventilating, air
conditioning, plumbing and drainage equipment, any music and public address
systems, installations and any enclosures constructed therefor, fountains,
service rooms, customer and service stairways, escalators, signs, lamps,
standards, public washroom facilities and all other facilities which are
provided and designated (and which designation may be changed from time to time)
by the Landlord for the common or joint use and benefit of the occupants of the
Development.
19.10 "Development" means the Lands, Buildings, Other Buildings and all
buildings and improvements existing on the Lands from time to time.
19.11 "Development Operation and Maintenance Costs" means all of the
Landlord's costs, charges and expenses of operating, maintaining, managing,
repairing, rebuilding, inspecting, insuring, supervising and administering the
Development, other than the Building or any Other Building, including the Common
Areas and the Common Facilities and include without limiting the generality of
the foregoing:
(a) the cost of lighting, heating, ventilating, air-conditioning
and supplying water and other utilities to the Common Areas
and Common Facilities; cleaning, janitorial services, snow and
ice removal, striping or repairing parking areas; supervising,
policing and security; painting, planting or landscaping,
operating and maintaining the garbage compaction equipment, if
any; the cost of maintaining, repairing, replacing or leasing
the pylon signs and public address, intercom, music, and alarm
systems; repairs and replacements to the Development, business
taxes, place of business taxes and other taxes levied in
respect thereof or fairly attributable to the Common Areas or
the Common Facilities; insurance premiums for any insurance
required or permitted to be carried by the Landlord pursuant
to the terms of this Lease other than for the Building or any
Other Building; supplies, personnel wages and payroll
expenses:
(b) an administration fee to the Landlord equal to fifteen (15%)
percent of the aggregate of the aforesaid costs, charges and
expenses; and
(c) depreciation, at rates determined by the Landlord, but not to
exceed the maximum permitted to the Landlord under the
provisions of the Income Tax Act (Canada) from time to time or
any legislation substituted therefor, on the equipment and
machinery employed in operating, maintaining, repairing or
replacing the Common Areas or the Common Facilities and a
carrying cost at the rate of two (2%) percent above prime,
from time to time, of the Canadian chartered bank designated
by the Landlord, on the undepreciated portion of the costs of
such equipment and machinery;
and there shall be excluded from such costs the following:
(i) payments of principal and interest under any mortgage or
mortgages on the development;
(ii) corporate, income, profits or excess profits taxes assessed
upon the income of the Landlord; and
(iii) Building Operation and Maintenance Costs;
and there shall be deducted from such costs the amount of proceeds actually
recovered by the Landlord from insurance and relating to damage, the cost of
repair of which was included in Development Operation and Maintenance costs.
19.12 "Force Majeure" means any cause beyond the control of the Landlord
delaying, hindering or preventing the Landlord from performing any term,
covenant or act required hereunder and, without limiting the generality of the
foregoing, includes lock-outs (including lock-outs decreed or recommended for
its members by a recognized contractors' association of which the Landlord is a
member or to which the Landlord is otherwise bound), strikes, labour disputes,
inability to procure materials or services, restrictive governmental laws or
regulations, fire, act of God, riots, insurrection, sabotage, rebellion and war.
19.13 "Gross Leaseable Area" means the aggregate floor area (expressed in
square meters or square feet), from time to time, determined by the Landlord's
Architect of all premises leased to or intended to be leased to tenants and
located within the area to which the measurement is being applied.
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19.14 "HVAC Costs" includes with respect to the Building:
(a) all of the Landlord's costs, charges and expenses of
operating, maintaining, managing, replacing, repairing and
supervising the apparatus for heating, ventilating and air
conditioning installed in the Building, from time to time,
other than those part of such apparatus installed by or on
behalf of the Tenant or any other tenant (the "HVAC System");
and
(b) an administrative fee equal to fifteen (15%) percent of the
total of the costs, charges and expenses incurred by the
Landlord under the preceding provision of this definition;
19.15 "Landlord's Architect" means an architect or engineer from time to time
selected by the Landlord for the purpose of making any certification or
determination in accordance with the terms of this Lease.
19.16 "Landlord's Work" means the work specified in Schedule "B" hereto.
19.17 "Lands" means those lands located in the City of Richmond, in the
Province of British Columbia legally described as:
Firstly: Parcel Identifier ▇▇▇-▇▇▇-▇▇▇ and ▇▇▇-▇▇▇-▇▇▇
Lots l and 2
Section 32
Block 5 North, Range ▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Secondly: Parcel Identifier ▇▇▇-▇▇▇-▇▇▇
▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 5 West,
New Westminster District, Plan 73672
Thirdly: Parcel Identifier ▇▇▇-▇▇▇-▇▇▇
▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
19.18 "Lease" means this agreement, including any and all schedules attached
hereto as the same may be amended from time to time.
19.19 "Lease Year" means each calendar year in which a portion of the Term
falls, provided that the Landlord, if it deems the same convenient or necessary
for its accounting purposes, may, from time to time, by notice to the Tenant
alter the Lease Year to any other twelve (12) month period in which a portion of
the Term falls by specifying an annual date, being the first day of a calendar
month, upon which a subsequent Lease Year is to commence and in such event the
current Lease Year shall terminate on the day preceding the specified date.
19.20 "Leased Premises" means that portion of the Building outlined in red on
Schedule "A" hereto, subject to such minor variations as may occur in the course
of construction of the Building by the Landlord.
19.21 "Other Buildings" means any building or buildings existing on the Lands
from time to time containing premises that are leased or intended to be leased
to tenants, but excluding the Building.
19.22 "Permitted Use" means the use set forth in Basic Term .03.
19.23 "Prime Rate" means the rate of interest expressed as an annual rate, at
the relevant time or times, determined by the Toronto-Dominion Bank at its main
branch in Vancouver, British Columbia, as a reference rate for commercial demand
loans to its major commercial borrowers determined in Canadian dollars and made
by such bank in Canada and adjusted from time to time.
19.24 "Real Property Taxes" means all general, special, local improvement,
school and other taxes, levies, rates and charges levied, assessed or imposed
against the Development or any part thereof and all business taxes, assessments,
rates and levies, including any corporation capital tax, levied, assessed or
imposed on the Landlord in respect of the ownership or management of the
Development by municipal or other governmental authority having jurisdiction,
whether of a nature now or hereafter levied, assessed or imposed, together with
the cost to the Landlord of contesting, appealing or negotiating the same in
good faith but excluding those taxes and fees of the Tenant or other tenants
referred to in Article 10.01 hereof.
19.25 "Rent" means Basic Rent and Additional Rent.
19.26 "Tax Cost" means the cost of Real Property Taxes.
19.27 "Tenant's Proportionate Share" means:
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(a) in relation to each of Building Operation and Maintenance
Costs and HVAC Costs the proportion that the Area of the
Leased Premises is of the Gross Leaseable Area of the
Building; and
(b) in relation to Development Operation and Maintenance Costs,
and Tax Cost, the proportion that the Area of the Leased
Premises is of the Gross Leaseable Area of the Development.
19.28 "Tenant's Work" has the meaning set out in Article 3.01 hereof.
19.29 "Term" means the term of the Lease, as set out in Basic Term 0.4.
19.30 "Year of the Term" means each successive twelve (12) month period of
the Term, the first of which commences on the Commencement Date.
ARTICLE 20
Special Clauses
20.01 Early Occupancy
For the period commencing September 1, 1994 and ending the day before
the Commencement Date the Tenant shall be permitted to conduct its business in a
portion of the Leased Premises, being approximately 1,500 square feet. During
such period the Tenant shall pay to the Landlord in respect of the portion so
used as Rent, $1,113.75 per month and all other provisions of this Lease shall
be applicable.
20.02 Delayed Occupancy
If the Tenant has not completed the Tenant's Work and occupancy of the
Leased Premises is delayed due to the Landlord's failure to complete the
Landlord's Work then Basic Rent and Additional Rent shall ▇▇▇▇▇ until sixty (60)
days' following the completion of the Landlord's Work.
20.03 Tenant Improvement Allowance
Provided the Tenant has executed this Lease the Landlord shall
contribute a sum equal to $7.50 per square foot of the Area of the Leased
Premises (the "Allowance") toward the leasehold improvements constructed in the
Leased Premises. Payment of the Allowance shall be based upon the Tenant
providing bona fide paid invoices to the Landlord evidencing the Tenant spent at
minimum $95,000.00 on leasehold improvements constructed in the Leased Premises.
The Landlord shall pay the Allowance to the Tenant within five (5) business days
of receipt of such paid invoices.
The parties agree that the Tenant shall re-pay to the Landlord the
Allowance amortized over five (5) years at an interest rate of ten percent
(10%), being equal to $15,200.00 per annum in equal monthly instalments of
$1,266.67 each in advance on the first day of each calendar month from the
Commencement Date, based on a rate of $1.90 per square foot of the Area of the
Leased Premises per annum. It is further agreed that at any time during the
Term, the Tenant may, at its sole option, re-pay the Allowance in full to the
Landlord without penalty.
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20.04 Deposit
A deposit in the sum of $15,755.60 (the "Deposit) has been paid by the
Tenant to Royal LePage Real Estate Services Ltd. The Deposit shall be retained
by Royal LePage Real Estate Services Ltd. with interest accruing to the Tenant's
benefit until the Commencement Date. On the Commencement Date the Deposit,
including the accrued interest, shall be transferred to the Landlord to be held
without liability for interest and applied by the Landlord against the Rent
(including Goods and Services Tax) first accruing due during the Term with the
balance to be held without liability for interest as a security deposit. If the
Tenant fails to take possession of the Leased Premises within fifteen (15) days
of the Leased Premises being ready for occupancy, the Landlord may, at its sole
option, terminate this Lease, whereupon the Deposit shall be retained by the
Landlord as liquidated damages and not as a penalty.
IN WITNESS WHEREOF the parties hereto have executed this agreement by
their respective duly authorized officers in that behalf, as of the day and year
first above written.
BENTALL PROPERTIES LTD. )
)
)
Per: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ )
------------------------------------------)
Authorized Signatory )
)
)
Per: /s/ ▇▇▇ ▇▇▇▇▇ )
------------------------------------------)
Authorized Signatory )
THE CORPORATE SEAL of )
WESTMINSTER MANAGEMENT CORPORATION )
was hereunto affixed in the presence of: )
)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
------------------------------------------)
Authorized Signatory )
)
)
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
------------------------------------------)
Authorized Signatory )
THE CORPORATE SEAL of )
APPLIED VASCULAR ENGINEERING CANADA, INC. )
was hereunto affixed in the presence of: )
)
/s/ ▇▇▇▇ ▇. Dance )
------------------------------------------)
Authorized Signatory )
)
)
)
------------------------------------------)
Authorized Signatory )
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SCHEDULE "A**
PLAN OF THE PREMISES
MAP OF BUILDING 5
KNIGHTSBRIDGE BUSINESS PARK
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SCHEDULE "B"
LANDLORD'S WORK
The Landlord shall be solely responsible for the demising wall and the
preparation of electrical services.
- 26 -
SCHEDULE "C"
Attached to and forming part of the Lease dated the 10th day of AUGUST, 1994.
BETWEEN:
BENTALL PROPERTIES LTD. and
WESTMINSTER MANAGEMENT CORPORATION
(the "Landlord")
AND:
APPLIED VASCULAR ENGINEERING CANADA INC.
(the "Tenant")
1. Signs may be illuminated with the Landlord's approval but in no case will
they be allowed to flash or rotate.
2. The use of any electronic signage or other form of reader board signage
shall be approved at a preliminary design stage with the Landlord. All
signage must be approved by the Landlord at the time of approval of the
final design of the Leased Premises.
3. The Building may have a free standing "suit case" sign provided by Landlord
to identify building only. No other form of free standing signage shall be
allowed.
4. Signs featuring general advertising shall not be permitted.
5. Free standing roof signs shall not be permitted.
6. Signs affixed to fascias shall not protrude above the roof level of a
building nor the upper level of the fascia to which they are attached. No
external supporting structures shall be visible.
7. Signs may include the registend trademark or symbol of a company if the
signage complies with the intent of these guidelines, and is to the
Landlord's satisfaction.
8. The Tenant reserves the right to identify itself and its associated
companies on a sign supplied by the Tenant above the front office windows
at a location to be mutually agreeable to the Landlord and the Tenant and
the size, type and style of the sign shall be subject to the approval of
the Landlord.
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SCHEDULE "D"
INTENTIONALLY DELETED
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SCHEDULE "E"
ENVIRONMENTAL COVENANTS
1. Definitions
In this Schedule:
"Hazardous Substance" means:
(a) any radioactive material;
(b) any explosive;
(c) any substance that, if added to any water, would degrade or
alter or form part of a process of degradation or alteration
of the quality of that water to the extent that it is
detrimental to its use by man or by any animal, fish or plant;
(d) any solid, liquid, gas or odour or combination of any of them
that, if emitted into the air, would create or contribute to
the creation of a condition of the air that:
(i) endangers the health, safety or welfare of persons or
the health or animal life;
(ii) interferes with normal enjoyment of life or property;
or
(iii) causes damage to plant life or to property;
(e) any toxic substance;
(f) any substance declared to be hazardous or toxic under any Law,
Regulation or Order (as defined below) now or hereafter
enacted or promulgated by any governmental authority having
jurisdiction over the Landlord, the Tenant, the Leased
Premises or the Development of which the Leased Premises form
a part; and
(g) any other substance which is or may become hazardous,
dangerous or toxic to persons or property;
"Laws" means all applicable federal, provincial, state, municipal, or
local laws, by-laws, statutes, or ordinances, including, without
limitation, the following: the Canadian Environmental Protection Act,
the British Columbia Waste Management Act and other applicable laws
relating to the environment, occupational safety, product liability and
transportation;
"Regulations" mean all rules, regulations or the like promulgated
under or pursuant to any Laws; and
"Orders" mean all applicable orders, decisions, or the like rendered by
any ministry, department or administrative or regulatory agency.
2. Tenant's Covenant as to Use
Without limiting the generality of the covenants of the Tenant in the Lease
contained including Basic Term .03 thereof, the Tenant covenants and agrees
that the Tenant will not bring upon the Leased Premises or any part thereof
any Hazardous Substances if at any time, notwithstanding the foregoing
covenant of the Tenant, there shall be any Hazardous Substances upon the
Leased Premises or a part thereof whether or not brought thereupon by the
Tenant, the Tenant shall, at its own expense:
(a) immediately give the Landlord notice specifying the nature and location
of the Hazardous Substances and thereafter give the Landlord from time
to time written notice of the extent and nature of the Tenant's
compliance with the following provisions of this paragraph;
(b) promptly remove the Hazardous Substances from the Leased Premises in a
manner which conforms with all Laws, Regulations and Orders governing
the movement of the same and the reasonable requirements of the
Landlord in connection with the movement; and
(c) if requested by the Landlord, obtain at the Tenant's cost and expense
from an independent consultant designated or approved by the Landlord
verifying the complete and proper removal thereof from the Leased
Premises or, if such is not the case, reporting as to the extent and
nature of any failure to comply with the foregoing provisions of this
paragraph.
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3. Compliance with Laws
Without limiting the generality of the covenants of the Tenant in the Lease
contained including Section 4.09 thereof, the Tenant shall, at its own cost
and expense, comply with all Laws, Regulations and Orders from time to time
in force relating to the Landlord, the Tenant, the business of the Tenant,
the Leased Premises or the Development relating to Hazardous Substances and
the protection of environment and shall immediately give written notice to
the Landlord of the occurrence of any event in the Leased Premises or on
the Development or a contravention thereof and, if the Tenant shall, either
alone or with others, cause the occurrence of such event, the Tenant shall,
at its own expense:
(a) immediately give the Landlord notice of the occurrence and the
contravention and thereafter give the Landlord from time to time
written notice of the extent and nature of the Tenant's compliance with
the following provisions of this paragraph;
(b) promptly remedy the contravention in a manner which conforms with all
Laws, Regulations and Orders governing the movement of the same; and
(c) if requested by the Landlord, obtain at the Tenant's cost and expense
from an independent consultant designated or approved by the Landlord
verifying the complete and proper remedying of the contravention or, if
such is not the case, reporting as to the extent and nature of any
failure to comply with the foregoing provisions of this paragraph.
The Tenant shall, at its own expense, remedy any damage to the Leased
Premises and the Development caused by such event within the Leased
Premises or by the performance of the Tenant's obligations under this
paragraph as a result of such occurrence. If the Tenant fails to do so, the
Landlord may at its option remedy the damage, and may recover its cost and
expenses of so doing from the Tenant as additional rental under the Lease.
If any governmental authority having jurisdiction shall require the
clean-up of any Hazardous Substances held, released, spilled, abandoned or
placed upon the Leased Premises or the Development or released into the
environment by the Tenant in the course of the Tenant's business or as a
result of the Tenant's use or occupancy of the Leased Premises, then the
Tenant shall, at its own expense, prepare all necessary studies, plans and
proposals and submit the same for approval, provide all bonds and other
security required by governmental authorities having jurisdiction and carry
out the work required and shall keep the Landlord fully informed and
provide to the Landlord full information with respect to the proposed plans
and comply with the Landlord's reasonable requirements with respect to such
plans. The Tenant agrees that if the Landlord determines, in its own
discretion, that the Landlord, its property or its reputation is placed in
any jeopardy by the requirement for any such work, the Landlord may itself
undertake such work or any part thereof at the cost and expense of the
Tenant.
4. Enquiries by Landlord
The Tenant hereby authorizes the Landlord to make enquiries from time to
time of any government or governmental agency with respect to the Tenant's
compliance with any and all laws and regulations pertaining to the Tenant,
the Tenant's business and the Leased Premises including without limitation
Laws, Regulations and Orders pertaining to Hazardous Substances and the
protection of the environment; and the Tenant covenants and agrees that the
Tenant will from time to time provide to the Landlord such written
authorization as the Landlord may reasonably require in order to facilitate
the obtaining of such information.
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5. Event of Default
The presence of any Hazardous Substances in the Leased Premises without the
prior written approval of the Landlord shall be considered to be a default
for the purposes of the Lease.
6. Ownership of Hazardous Substances
If the Tenant shall bring or create upon the Development or the Leased
Premises any Hazardous Substance or if the conduct of the Tenant's business
shall cause thereto be any Hazardous Substance upon the Development or the
Leased Premises then, notwithstanding any rule of law to the contrary, such
Hazardous Substance shall be and remain the sole and exclusive property of
the Tenant and shall not become the property of Landlord notwithstanding
the degree of affixation of the Hazardous Substance or the goods containing
the Hazardous Substance to the Leased Premises or the Development and
notwithstanding the expiry or earlier termination of this Lease.
7. Survival of Covenants
The obligations of the Tenant hereunder relating to Hazardous Substances
shall survive the expiry or earlier termination of this Lease save only
that, to the extent that the performance of those obligations requires
access to or entry upon the Leased Premises or the Development or any part
thereof, the Tenant shall have such entry and access only at such times and
upon such terms and conditions as the Landlord may from time to time
specify; and the Landlord may, at the Tenant's cost and expense, itself or
by its agents, servants, employees, contractors and subcontractors,
undertake the performance of any necessary work in order to complete such
obligations of the Tenant; but having commenced such work, the Landlord
shall have no obligation to the Tenant to complete such work.
8. Right to Use Hazardous Substances
Notwithstanding anything to the contrary herein or in the Lease contained,
the Landlord acknowledges and agrees that the Tenant uses certain
substances and materials in the conduct of the Tenant's business which
would be considered Hazardous Substances hereunder. Accordingly, the
Landlord hereby consents and agrees to the presence of such Hazardous
Substances upon the Development and the Leased Premises, provided the
following conditions are met:
(a) the Tenant shall only bring upon the Development and upon the Leased
Premises such Hazardous Substances as are reasonably required for the
conduct of its business operations within the Leased Premises, and
shall forthwith remove from the Development and from the Leased
Premises any Hazardous Substances which are no longer required for such
business operations;
(b) under no circumstances will the Tenant use the Leased Premises or any
portion thereof to stockpile or warehouse Hazardous Substances, other
than in such reasonable quantities as may be required for its business
operations within the Leased Premises;
(c) the Tenant will comply fully with all Laws, Regulations and Orders
related to the transportation, storage, use and disposal of all
Hazardous Substances so brought upon the Development or the Leased
Premises by the Tenant; and
(d) save for the right to bring Hazardous Substances upon the Development
and the Leased Premises for use as aforesaid, the Tenant shall be bound
by all of the other terms and conditions of this Schedule including,
without limitation, the obligation to remedy any damage to the Leased
Premises or to the Development caused by the Tenant's exercise of its
rights hereunder.
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