THIS AGREEMENT made as of the 27 day of August 1998,
BETWEEN:
YALETOWN CENTRE INVESTMENTS LTD., (Incorporation No.378951 a body corporate
duly incorporated under the laws of the Province of British Columbia,
having a registered and records office at ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter called the "Landlord")
OF THE FIRST PART
AND:
Intellicom Canada Communications Inc. (Incorporation No.561893 BC) a body
corporate duly incorporated under the laws of the Province of British
Columbia, having a registered and records office at #▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
(hereinafter called the "Tenant")
AND:
OF THE SECOND PART
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ Page , Businessperson, of Suite 2604 - 1500 Hornby
Street, Vancouver, BC V6C 1VS
(hereinafter called the "Covenantor")
WHEREAS:
A. The Landlord is the registered owner of that certain parcel or tract of
land and premises situate, lying and being in the City of Vancouver, in the
Province of British Columbia, and known and described as:
Parcel Identifier: ▇▇▇-▇▇▇-▇▇▇
Lot E (Explanatory Plan 19156)
Block 76
District Lot 541
Plan 3469
upon which is situate the building (as hereinafter defined);
B. The Landlord and Tenant are desirous of entering into a lease of the
Demised Premises (as hereinafter defined);
NOW THEREFORE WITNESSETH THISAGREEMENT that in consideration of the mutual
covenants, agreements, representations and warranties and farther in
consideration of the payment by the Tenant to the Landlord of the rents
hereinafter provided, the parties agree as follows:
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ARTICLE 1-DEFINITIONS
1.1 The terms defined in this Article shall for all purposes of this Lease or
other instruments supplemental hereto, have the meanings herein specified,
unless the context expressly or by necessary implication otherwise requires:
(a) "Additional Rent" means any of the costs and expenses at any time
payable by the Tenant pursuant to Article 6 hereof;
(b) "Basic Rent" means the rent described in paragraph 5.1 hereof;
(c) "Building" means the building situate on the Land, and includes any
additions, alterations, or extensions thereto;
(d) "Building Equipment" means all machinery, boiler, plumbing, wiring,
heating, air-conditioning and lighting and other equipment which is an
integral part of the Building, if any, other than Tenant's Equipment;
(e) "Common Areas" means those areas that are designated by the landlord
as Common Areas (which designation may be changed from time to time)
including, without limitation, the root, exterior weather walls,
pedestrian sidewalks, exterior landscaped areas, parking areas,
roadways, sidewalks, all enclosed malls, courts and arcades, public
hallways, open malls, service corridors, stairways, escalators, ramps,
moving sidewalks and elevators and other transportation equipment and
systems, interior landscaped areas, public washrooms, electrical,
telephone, meter, valve, mechanical, mail, storage and janitor rooms
and galleries, fire prevention, security and communications systems,
general signs, columns, all other installations or services located
therein or related thereto as well as the structures housing the same,
truck courts, common loading areas and driveways;
(f) "Common Maintenance Cost" means the total, without duplication, of the
expenses incurred by the Landlord for operating, maintaining and
repairing the Building (including necessary replacements, and shall,
without limiting the generality of the foregoing), include the
aggregate of:
i) the costs of repairs, maintenance and such replacements to the
Common Areas and the Common Facilities as are properly chargeable
in accordance with sound accounting practice to operating
expenses as distinguished from capital replacement or
improvements;
ii) janitorial, window-cleaning and other similar costs, including
supplies and equipment;
iii) the expense for gardening and landscaping, line painting, rental
of signs and equipment, lighting, sanitary control, the removal
of snow, parking areas cleaning and security;
iv) wages paid for maintenance and operating personnel, including
payments for workers compensation, unemployment insurance,
vacation pay, Canada Pension Plan contributions and fringe
benefits whether statutory or otherwise;
v) scavenging, garbage and waste collection and disposal;
vi) the cost of fuel, electrical power and other utilities furnished
to the Building;
vii) equipment or sign rental; and
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viii)the cost of any independent contractors engaged to perform any
of the foregoing services;
(g) "Common Facilities" means the electrical, music and public address
systems, heating ventilating, air-conditioning, plumbing and drainage
equipment and installations and any enclosures constructed therefor,
fountains, customer service stairways, escalators, ramps, moving
sidewalks, elevators, signs, lamp standards, public washroom
facilities and parking deck and all other facilities which are
provided or designated (which designation may be changed from time to
time by the Landlord and which are located within the Building.)
(h) "Cost of Heating, Ventilating and Air-Conditioning" means the total,
without duplication, of the expenses incurred by the Landlord for
operating, maintaining, repairing and replacing any heating,
air-conditioning or ventilation systems or equipment ("HVAC"), and
shall without limiting the generality of the foregoing, include the
aggregate of:
i) the amount expended by the Landlord for fuel, water, electricity
and additives for the HVAC;
ii) the total annual costs to boiler and pressure vessels insurance
coverage paid by the Landlord for insurance;
iii) wages paid to maintenance and operating personnel for the HVAC,
including payments for workers compensation, unemployment
insurance, vacation pay, Canada Pension Plan contributions and
fringe benefits whether statutory or otherwise;
iv) the costs of repairs, maintenance and such replacements to the
HVAC as are properly chargeable, in accordance with sound
accounting practice to operating expenses, as distinguished from
capital replacements or improvements;
v) the portion of municipal tax costs from municipal taxes which may
be reasonably allocated to the HVAC.
(i) "Costs of Insurance" means the annual cost to the Landlord to take out
insurance in respect of the Building and the Land (as set out in
Article 8 hereof) and such other insurance as the Landlord may from
time to time determine.
"Demised Premises" means all that portion of the Building which is
outlined in red on Schedule "A" attached hereto and more particularly
referred to as ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, consisting of approximately 1,878 square feet out of a total
square footage of 45,381 square feet;
(k) "Land" means that parcel or tract of land and premises legally
described in Recital "A" hereof;
(1) "Lease" means this instrument as originally executed and delivered or,
if amended, or supplemented or renewed, as so amended, or supplemented
or renewed;
(m) "Realty Taxes" means all real estate taxes, assessments, rates and
charges and other governmental impositions general or special,
ordinary or extraordinary, foreseen or unforeseen, of every kind,
including, without limitation, water and sewer charges, assessments
for local or public improvements and school taxes which may at any
time during the term of the Lease be imposed, assessed or levied in
respect of the land and/or in respect of the improvements from time to
time thereon, including any cost or expense by way of legal fees,
appraiser's fees or fees of a similar nature incurred by the Landlord
in conducting any appeal in respect of any such taxes, rates, charges
or impositions, all such amounts to be adjusted to exclude any portion
thereof payable for periods outside the Term of Lease.
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(n) "Security Deposit" means the deposit described in paragraph 5.3
hereof.
(o) "Special Tenant Expenses" means the expenses described in paragraph
6.2 hereof;
(p) 'Structural Repairs" means repairs necessary from time to time to the
foundations, supports, beams, exterior roof and bearing walls of the
Building, painting exterior walls, landscaping and replacement of
Common Area fixtures, provided that if any dispute shall arise between
the Landlord and Tenant as to whether any given repairs are or are not
Structural Repairs then the matter shall be resolved by binding
arbitration under the Commercial Arbitration Act (British Columbia)
decided by a single arbitrator who shall be a duly qualified Civil
Engineer named by the Landlord and the Tenant and the decisions of
such arbitration shall be conclusive and binding upon the parties
hereto;
(q) 'Tenant's Equipment" means all personal property, apparatus, machinery
and equipment, other than Building Equipment, owned by the Tenant and
used or intended for use in connection with the operation of the
business of the Tenant and whether installed prior to the commencement
of the Term of Lease or at any time and from time to time during the
Term of Lease;
(r) "Tenant's Proportionate Share" with respect to any amount means 4.14 %
of such amount;
(s) "Term" means the term of THREE (3) years described in paragraph 3.1
hereof;
(t) "Commencement Date" means September 1,1998;
(u) "Termination Date" means August 31, 2001;
ARTICLE 2- GRANT OF LEASE
2.1 The Landlord hereby demises and leases upon the Tenant and the Tenant
hereby takes and rents the Demised Premises all on the terms and conditions
herein contained.
2.2 In addition to the lease herein of the Demised Premises, the Landlord
hereby grants to the Tenant and the Tenant's invitees, agents and servants,
in common with the Landlord and all other person authorized by the Landlord
from time to time, a license to use the Common Areas for the purpose of
gaining access to the Demised Premises and better using the same, provided
that nothing herein shall in any way restrict the Landlord from entering,
maintaining, altering or changing the Common Areas, or from altering or
adding to the Building as long as the Tenant is able to gain access to the
Demised Premises.
ARTICLE 3- TERM OF LEASE
3.1 The Lease shall be for a term of THREE (3) years the "Term" commencing
September 1, 1998 (the "Commencement Date") and ending on August 31, 2001
(the "Termination Date").
ARTICLE 4- TO OPERATE DURING THE TERM
4.1 The Tenant will not during the term vacate the leased premises either in
whole or in part (whether actually or constructively) but will:
(a) conduct its business in the entire Demised Premises;
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(b) actively carry on in the Demised Premises, the type of business for
which the Demised Premises are leased to the Tenant.
ARTICLE 5- RENT
5.1 The Tenant shall pay during the Term total Basic Rent of EIGHTY-FOUR
THOUSAND FIVE HUNDRED TEN DOLLARS ($84,510.00) payable monthly in advance
on the first day of each and every month in consecutive monthly
installments TWO THOUSAND THREE HUNDRED FORTY-SEVEN DOLLARS AND FIFTY CENTS
($2,347.50), and the first such monthly installments, or a pro-rated
portion thereof in the event this Lease is effective other than on the
first day of a month, shall be paid on execution of this Lease and
subsequent installments shall be paid on the firs t day of each and every
month during the term hereby demised;
5.2 The Landlord acknowledges receipt of THREE THOUSAND SIX HUNDRED DOLLARS AND
TWENTY-EIGHT CENTS ($3,600.28) representing the payment of Basic Rent,
Additional Rent and G.S.T. for the first month of the Term.
5.3 The Landlord acknowledges receipt of a Security Deposit in the amount of
THREE THOUSAND SIX HUNDRED TWENTY-EIGHT DOLLARS AND TWENTY-EIGHT CENTS
($3,600.28). The Security Deposit shall be held by the Landlord without
liability for interest, as security for the faithful performance by the
Tenant of all the terms, covenants and conditions of this Lease by the
Tenant to be kept, observed and performed. If at any time during the Term
the Rent or other sums of payable by the Tenant are overdue and unpaid, or
if the Tenant fails to keep or perform any of the terms, covenants and
conditions of this Lease to be kept, observed and performed by the Tenant,
then the Landlord at its option may, in addition to any and all other
rights and remedies provided for in this Lease or by law, appropriate and
apply the entire Security Deposit, or so much thereof is necessary to
compensate the Landlord for loss or damage suffered by the Landlord due to
such breach on the part of the Tenant. If the entire Security Deposit, or
any portion thereof is appropriated and applied by the Landlord for payment
of overdue rent or other sums due and payable to the Landlord by the Tenant
hereunder, then the Tenant shall, upon written demand of the Landlord,
forthwith rernit to the Landlord a sufficient amount in cash to restore the
Security Deposit to the original sum deposited, and the Tenant's failure to
do so within three (3) days after receipt of such demand constitutes a
breach of this Lease. If the Tenant complies with all of the terms,
covenants and conditions and promptly pays all of the rent and other sums
herein provided and payable by the Tenant to the Landlord, the Security
Deposit shall be returned in full to the Tenant without interest within
sixty (60) days after the end of the Term, or within sixty (60) days after
the earlier termination of the Term, as the case may be.
5.4 The rent reserved hereunto shall be paid in Canadian Funds to the Landlord
at its address for notice herein unless another place of payment is
designated by the Landlord to the Tenant in writing, and the Tenant shall
(at the request of the Landlord) deliver postdated cheques to the Landlord
on the first day of the Term for the payment of Rent to fall due in the
months in the Term.
5.5 The Lease shall be a net lease, and the Basic Rent shall be net to the
Landlord, and shall yield to the Landlord the entire Basic Rent during the
Term without abatement, deduction or set-off of any nature whatsoever and
all costs, expenses, rates, taxes, charges and obligations of every kind
and nature whatsoever relating to the Demised Premises, whether or not
herein referred to and whether or not of a kind now existing or within the
contemplation of the parties hereto, shall be paid by the Tenant excepting
only any Landlord's Corporation Capital Tax, income tax or taxes other than
business tax imposed or levied by any authority whatever on the income
received by the Landlord from the Demised Premises.
5.6 Any money payable by the Tenant to the Landlord in addition to the Basic
Rent shall be deemed to be rent. All monies payable by the Tenant to the
Landlord pursuant to the Lease shall bear interest at the rate of 2% per
month (26.824% per annum) from the date of default.
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ARTICLE 6- ADDITIONAL RENT
6.1 The Tenant shall pay to the Landlord as additional rent (the "Additional
Rent") to the Landlord in each year of the Term of Lease, within ten (10)
days after demand the Tenant's Proportionate Share of:
(a) Common Maintenance Cost;
(b) Cost of Heating, Ventilating and Air-Conditioning;
(c) Cost of Insurance;
(d) Realty Taxes;
(e) an administrative fee equal to 15% of the total of expenses incurred
by the Landlord under paragraphs 6.1 (a)to (d) inclusive;
together with the total of:
(f) all taxes, license fees, duties, rates, assessments or imposts of
whatsoever nature levied by any authority whatsoever in respect of the
Land and Building as shall be attributable to the business or property
of the Tenant, or to any thing or things erected or placed in, upon or
under, or fixed to the Demised Premises by or with the consent or
permission of the Tenant during the Term, including all fixtures,
machines, equipment and other things of any nature or description not
the property of the Landlord or which may be lawfully removed by the
Tenant;
(g) the total cost of all local improvements and utility charges, if any,
and all charges for water, gas, electric light, heat and power,
ventilating and air-conditioning, telephone, scavenging and garbage
and waste collection or other similar service used, rendered or
supplied upon or in connection with the Demised Premises and the
Tenant will indemnify and save the Landlord harmless against and from
any liability or damages on any such account;
(h) Goods and Services Tax ("G.S.T.") payable by the Tenant on Basic Rent
and any of the foregoing payments; and
(i) all other amounts which shall become due and payable pursuant to the
Lease.
6.2 The Tenant shall pay the Landlord upon demand the charges established by
the Landlord from time to time for all supplementary services and utilities
provided to the Tenant by the Landlord or its agents (the "Special Tenant
Expenses"). Such supplementary services and utilities shall include,
without limitation, security, maintenance, repair, janitorial, cleaning and
any other services provided outside ordinary business hours and/or in a
manner not considered by the Landlord as standard. Where any other expenses
over and above normal operations for the Centre is incurred or paid by the
Landlord specifically for the benefit of and at the request of the Tenant,
the Tenant shall pay such expense. The Landlord may charge and the Tenant
shall pay a service fee for providing such services or for incurring such
expense.
6.3 The Additional Rent shall, when in default, be deemed to be rent,
receivable as such, and all remedies of the Landlord on non-payment of
Basic Rent shall be applicable thereto. The obligation of the Tenant to pay
any of the aforementioned amounts owing, accrued or unpaid at the end of
the Lease Term shall survive the expiration or sooner termination of the
Lease.
6.4 The Tenant covenants to pay the Tenant's taxes and any and all fees or
amounts payable by the Tenant other than to the Landlord, in connection
with the Tenant's business in or occupation of the Demised Premises.
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6.5 The Tenant may take advantage of any provisions of law whereby Realty Taxes
or any other amounts payable by the Tenant including amounts payable other
than to or through the Landlord may be paid by installments or deferred for
some portion of the fiscal period to which they relate, provided that no
fine, penalty, interest and expense arising from any failure by the Tenant
to pay any such amount when due and further provided that no fine, penalty
or cost is thereby incurred and the Tenant shall pay any fine, penalty,
interest and expense arising from any failure by the Tenant to pay any such
amount when due and further provided that the Landlord shall be at liberty
to pay any such amount (after five (5) days written notice to the Tenant of
its intention so to do) and may add to the next ensuing installment of rent
the amounts so paid including penalties, charges and interest in connection
therewith.
6.6 The Tenant shall have the right to contest at the Tenant's sole expense the
amount or validity of any Realty Taxes or other amounts imposed in respect
of the Demised Premises but nothing herein contained shall be deemed to
relieve the Tenant of its obligation to pay such Realty Taxes or other
amounts or to authorize the Tenant to defer payment of such Realty Taxes,
unless such deferment is lawful and the Landlord consents in writing to
such deferment and the Tenant has paid the full amount in dispute to the
Landlord, as security, including the amount of any possible penalties and
interest.
6.7 If the Tenant is contesting in good faith the amount or validity of any
Realty Taxes or any other assessment or impost and has complied with the
provision of this Article and if it becomes necessary for the Landlord to
join in or consent to such proceedings the Landlord shall join or consent
as required but the Tenant shall indemnify the Landlord against all expense
arising therefrom.
6.8 Notwithstanding the provisions of this Article, at any time during the Term
of lease the Landlord may by notice in writing require the Tenant to pay
and the Tenant shall pay to the Landlord, on each date following such
notice upon which installments on account of Basic Rent are payable, such
amount or amounts, which shall not bear interest, as the Landlord may from
time to time estimate as being necessary to provide to the Landlord
sufficient funds to pay the Additional Rent and if the amounts actually
charged or payable in any fiscal period shall exceed the amount or amounts
paid by the Tenant for such fiscal period, the Tenant shall pay to the
Landlord forthwith on demand the amount required to make up the deficiency,
and any overpayment made by the Tenant in such fiscal period shall
forthwith upon determination be returned without interest by the Landlord
to the Tenant.
6.9 The Tenant shall upon demand by the Landlord provide to the Landlord proof
in such form as the Landlord may reasonably require, that the Tenant has
paid when due any and all payments required hereunder to be made by the
Tenant other than to the Landlord
6.10 The Landlord shall at the request of the Tenant provide to the Tenant a
statement showing in reasonable detail the amount of any of the items set
out in paragraph 6.1.
ARTICLE 7- TENANT'S EOUIPMENT
7.1 At any time and from time to time during the Term the Tenant may install,
maintain and replace in the Demised Premises, any Tenant's Equipment as the
Tenant, in its sole discretion, may desire and, notwithstanding the fact
that the Tenant's Equipment shall nevertheless be and remain at all times
the property of the Tenant. The Tenant may not permanently remove any
material part of the Tenant's Equipment at any time during the Term without
the written consent of the Landlord which shall not be unreasonably
withheld.
7.2 The Tenant shall be responsible for and will repair all or any damage to
any part of the Demised Premises, including structural portions thereof
caused by installation or removal of any of the Tenant's Equipment,
fixtures, alterations, or improvements, and shall restore the Demised
Premises to the same condition as they were in at the Commencement of the
Term of Lease.
7.3 Any of the Tenant's Equipment remaining in the Demised Premises at the
termination of the Lease may be removed and stored by the Landlord, who
shall thereupon have the first and paramount lien against the said Tenant's
Equipment and the Landlord shall not be required to release possession
thereof until payment to the
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Landlord of the cost of removal and storage of the Tenant's Equipment and
if the Tenant fails to pay such cost within five (5) days of demand in
writing by the Landlord, the Landlord shall have the right to sell the same
and may apply the proceeds firstly in payment of the costs of such removal,
storage and sale and secondly to the Tenant's account.
7.4 The Landlord shall not be responsible for any loss or damage occurring to
the Tenant's Equipment, save and except for loss or damage caused by the
willful neglect of the Landlord or person for whom in law the Landlord is
responsible.
ARTICLE 8-INSURANCE
8.1 The Landlord, acting reasonably and as a prudent owner of the Land and
Building, may obtain at the expense of the Tenant to the extent of the
Tenant's Proportionate Share such insurance for the benefit of the Landlord
as the Landlord from time to time considers useful, expedient or
beneficial, including, without limitation, any or all of the following:
(a) a broad form of insurance against all risks of loss or damage to all
property owned by the Landlord relative to the Land and Building,
including coverage for fire, flood and earthquake, or any other form
of loss;
(b) insurance against all explosion, rupture or failure of boilers,
pressure vessels, air-conditioning equipment and miscellaneous
electrical apparatus on blanket basis with broad form cover, including
repair and replacement;
(c) insurance against loss of insurable gross rentals attributable to all
perils insured against by prudent landlords, including loss of all
rents receivable from tenants in the Building in accordance with the
provisions of their leases including all rents thereunder and all
other charges payable as additional rent thereunder, in such amount or
amounts as the Landlord or its mortgagees from time to time requires;
(d) insurance against third party liability hazards including exposure to
personal injury, bodily injury and property damage on an occurrence
basis, including insurance of all contractual obligations, and
covering also actions of all employees, other persons, sub-contractors
and agents while working on behalf of the Landlord; and
(e) insurance against any other form or forms of loss that the Landlord or
its mortgagees reasonably requires from time to time for like
properties similarly situated and for amounts against which a prudent
landlord would insure itself.
Notwithstanding any contributions by the Tenant to insurance premiums as
provided for in the Lease, no insurable interest is conferred upon the Tenant
under policies carried by the Landlord, the Landlord shall in no way be
accountable to the Tenant regarding the use of any insurance proceeds arising
from any claim, and the Landlord shall not be obliged on account of such
contributions to apply such proceeds to the repair or restoration of that which
was insured and it is hereby declared and agreed that if the Tenant may desire
to receive indemnity by way of insurance for any property, work or thing
whatever, the Tenant shall insure same for its own account and shall not look to
the Landlord for reimbursement or recovery in the event of loss or damage from
any cause, whether or not the Landlord has insured same and recovered therefor.
8.2 The Tenant shall, during the Term, at its sole cost and expense, take out
and keep in full force and effect, in the name of and with losses payable
to the Tenant, the Landlord and if required by the Landlord or the
Landlord's mortgagees, the following:
(a) property damage insurance, which shall include coverage on property of
every description and kind owned by the Tenant including the Tenant's
inventory and stock in trade, furniture and
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fixtures and such other property in or forming part of the Demised
Premises or for which the Tenant is responsible or legally liable
pursuant to the terms of the Lease, or which is installed by or on
behalf of the Tenant, including Tenant's Equipment, in an amount at
least equal in the opinion of the Landlord to the full insurable value
thereof calculated on a replacement cost basis without co-insurance
requirements and the perils insured against shall include fire and
water damage and a form of broad all-risk coverage and such additional
perils as are normally insured against in the circumstances by prudent
tenants, and as any mortgagee having a security interest in the
Building reasonably requires, or as the Landlord, from time to time,
demands;
(b) glass damage insurance, which shall include coverage for plate glass
or other glass and any high-value lettering or ornamentation thereon,
destroyed, damaged or stolen during the Term of Lease, such insurance
to be placed in an amount at least equal in the opinion of the
Landlord to the full insurance value thereof calculated on a
replacement cost basis, without deduction for depreciation and without
co-insurance requirements;
(c) public liability insurance applying to all operations of the Tenant
and which shall include bodily injury liability, liability with
respect to the loss or damage to the property of others, products
liability, contractual liability, contingent liability, non-owned
automobile liability and Tenant's legal liability with respect to the
occupancy by the Tenant of the Demised Premises, such policy to be
written on a comprehensive basis with limits of not less than
$2,000,000.00 per occurrence (or such higher limits as the Landlord or
its mortgagees require from time to time) and with a cross liability
clause;
(d) business intermption insurance applying to all operations of the
Tenant; and
(e) any other form or forms of insurance in such amounts and against such
perils as the Landlord or the Landlord's mortgagees reasonably require
from time to time.
All policies shall contain an undertaking by the insurers to notify the Landlord
and its mortgagees in writing not less than thirty (30) days prior to any
material change in terms, cancellation or other termination thereof.
8.3 All property damage policies written on behalf of the Tenant shall contain
a waiver of any subrogation rights which the Tenant's insurers may have
against the Landlord and against those for whom the Landlord is, in law,
responsible whether any such damage is caused by the act, omission or
negligence of the Landlord or by those for whom the Landlord is in law
responsible and the Tenant hereby releases and agrees to hold harmless the
Landlord from all liability for any loss or damage to or suffered by the
Tenant or its property or improvements, by oversight, fault or any other
cause whatsoever.
8.4 All policies shall be taken out with insurers acceptable to the Landlord
and on policies in form satisfactory from time to time to the Landlord and
the Tenant shall deliver certificates of insurance or, if required by the
Landlord or its mortgagees, certified copies of each such insurance policy
to the Landlord as soon as practicable after the placing of the same.
8.5 If the Tenant fails to take out or to keep in force any such insurance
referred to in this Article 8, or should any such insurance be reasonably
disapproved by either the Landlord or its mortgagees and the Tenant does
not obtain, reinstate or replace insurance, as the case may be, within
forty-eight (48) hours after written notice by the Landlord, or its
mortgagees do not approve of such insurance, (such notice of disapproval to
include the reasons therefor), the Landlord shall have the right, but not
the obligation, to effect such insurance at the sole cost of the Tenant and
all expenses of the Landlord shall be immediately payable by the Tenant to
the Landlord as Additional Rent hereunder and shall be due on the first day
of the next month following payment thereof by the Landlord, in addition to
and without prejudice to any other rights and remedies of the Landlord
under the Lease.
8.6 The Tenant will not keep, use, sell or offer for sale in or upon the
Demised Premises any article which may be prohibited by the fire insurance
policy or any other policies in force from time to time covering the Land
and Building, and further if the Tenant's occupancy of or conduct of
business in, the Demised Premises,
3O8-Lease-08/23/98
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whether or not the Landlord has consented to the same, causes any increase
in premiums for the insurance carried from time to time by the Landlord
with respect to the Land and Building, the Tenant shall pay the full amount
of any such increase in premiums as Additional Rent within ten (10) days
after bills for such additional premiums are submitted by the Landlord.
ARTICLE 9- REPAIRS
9.1
own cost and expense.
The Tenant covenants with the Landlord that the Tenant shall at all times during
the Term at its
(a) repair, maintain and keep the Demised Premises in good order and
repair, as a careful owner would do, reasonable wear and tear
excepted; and
(b) repair, maintain and keep all equipment and fixtures in the Demised
Premises in good order and repair and replace the same when necessary,
as a careful owner would do, including, without limitations, the floor,
windows, plate glass, glass partitions within the Demised Premises, and
any improvements now or hereafter made to the Demised Premises,
reasonable wear and tear and repairs for which the Landlord is
responsible only excepted; provided however that if such repairs by the
Landlord are required as a result of the act or omission of the Tenant,
its servants, agents or employees, the Tenant shall pay to the
Landlord, on demand, the costs of such repairs as Additional Rental and
the Tenant covenants to perform such maintenance, to effect such
repairs and replacements and to decorate at its own cost and expense as
and when necessary or reasonably required so to do by the Landlord.
9.2 The Tenant shall, when necessary and, whether upon receipt of notice from
the Landlord or not, effect and pay for such maintenance, repairs,
replacements or decoration as may be the responsibility of the Tenant under
the foregoing paragraph provided that no maintenance, repairs or
replacements to the structure, any perimeter wall, the store front, the
sprinkler system, the heating, ventilating, air-conditioning, plumbing,
electrical or mechanical equipment or the concrete floor shall be made
without the prior written consent of the Landlord, and in so doing shall
use contractors or other workmen designated or approved by the Landlord in
writing, such approval not to be reasonably withheld or delayed.
9.3 The Landlord covenants with the Tenant that the Landlord shall at all times
during the Term at the Tenant's cost and expense repair and replace as a
careful owner would do the heating, ventilating, air-conditioning,
plumbing, sprinkler, mechanical and electrical equipment and fixtures
(including all the parts, wiring and pipes thereof) within the Demised
Premises.
ARTICLE 10- STRUCTURAL DEFECTS
10.1 The Landlord shall be responsible to make good and repair any structural
defect in the Demised Premises by reason of a pre-existing condition in or
damage done to the Building in which the Demised Premises are located, or
damage caused by negligence of the Landlord, its servants or agents.
10.2 The Landlord shall cause proper maintenance of all Common Areas, at the
Tenant's cost to the extent of the Tenant's Proportionate Share.
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ARTICLE 11- CHANGES ALTERATIONS AND ADDITIONS
11.1 Hereafter and at any time and from time to time during the Term, the Tenant
shall have the right, subject to approval of the Landlord, at the Tenant's
expense, to make such changes and alterations in or to the Demised Premises
as the Tenant shall deem necessary or desirable in connection with the
requirements of its business but no structural change or alteration shall
be undertaken until detailed plans and specifications therefor and a list
of the contractors or tradesmen who the Tenant proposes to hire for the
work have first been furnished to and approved by and consented to in
writing by the Landlord, which approval and consent shall not be
unreasonably withheld.
11.2 The Tenant shall be responsible for procuring and paying for all required
municipal and other government permits and authorizations of the various
municipal departments and government divisions having jurisdiction
necessary or advisable in connection with any changes made pursuant to this
Article provided that the Landlord will, at the Tenant's expense, join in
application for such permits and authorizations whenever such action is
necessary.
11.3 All work done in connection with any change or alteration shall be done
promptly and in good and workmanlike manner and in compliance with the
valid and applicable building and zoning laws and with all other valid
laws, ordinances, orders, rules, regulations and requirements of all
federal, provincial and municipal governments, and the appropriate
departments, commissions, boards and officers thereof; and in accordance
with the orders, rules and regulations of the Canadian Fire Underwriters
Association, or any other body hereafter constituted exercising similar
functions; the cost of any such change or alteration shall be paid or
secured so that the Demised Premises shall at all times be free of liens
for labour and materials supplied, or claimed to have been supplied to the
Demised Premises.
11.4 All alterations or additions to the existing improvements, other than
Tenant's Equipment, shall upon attachment to the Demised Premises, be
deemed a part thereof; and title thereto shall immediately vest in the
Landlord without any liability on its part to pay for the same provided
that the Landlord may elect to require the Tenant to remove at the
expiration of the Lease all or any part of any improvement installed by or
on behalf of the Tenant, in which case such removal shall be done by the
Tenant forthwith, at the Tenant's expense, as well as all other repairs
necessitated by such removal, failing which the Landlord may carry out the
same at the Tenant's expense and without liability for damage to the
improvement so removed.
ARTICLE 12- DAMAGE OR DESTRUCTION
12.1 In the event that the Demised Premises are damaged or destroyed by any
peril or hazard recoverable under insurance maintained by the Landlord
under Article 8 then the Landlord shall immediately select a reputable
contractor and if such contractor:
(a) is of the opinion that the damage or destruction is capable of repair
with reasonable diligence within ninety (90) days of the date of the
damage then the Landlord shall deliver notice of its intention to
rebuild or repair and shall repair the damage with reasonable
diligence, or
(b) is of the opinion that the damage or destruction is not capable of
repair with reasonable diligence within ninety (90) days of the date
of the damage, then:
i) the Landlord may elect to repair such damage or destruction and
shall then repair the same with reasonable diligence, or
ii) either the Landlord or Tenant may elect to terminate the Lease.
12.2 In case the Demised Premises are damaged or destroyed by any peril or
hazard not recoverable under insurance maintained by the Landlord under
Article 8 then the Landlord may either elect to repair such
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damages or destruction and shall then repair the same with reasonable
diligence, or may elect to terminate the Lease.
12.3 If the Lease is not terminated by reason of such damage or destruction by
the Landlord or the Tenant and if such damage or destruction is such as to
render the Demised Premises wholly unfit for occupancy then the Basic Rent
and Additional Rent to be paid by the Tenant hereunder shall ▇▇▇▇▇ in
whole, or in proportion to the unoccupiable portion of the Demised
Premises, as the case may be, until the Landlord delivered a notice to the
Tenant that the repairs have been substantially completed at which time all
rent payable by the Tenant hereunder shall recommence.
12.4 If the Landlord herein does not give the Tenant notice of its intention to
either repair such damage or destruction or to terminate the Lease within
thirty (30) days of the damage or destruction then the Tenant may by notice
in writing delivered to the Landlord terminate the Lease, effective the
date upon which such termination notice is received.
12.5 If the Landlord shall elect under any provision of this Article not to
repair such damage or destruction and as a result the Lease terminates, the
Tenant shall cause all insurance proceeds payable in respect of damages to
the Demised Premises to be paid in accordance with the provisions of the
policy of insurance.
ARTICLE 13- USE OF DEMISED PREMISES
13.1 The Tenant shall use the Demised Premises only for general office and for
no other purposes without the written consent of the Landlord.
13.2 During the Term, the Tenant in the use, occupation, alteration or repair of
the Demised Premises, or any property used in connection therewith, shall
comply with the requirements of every applicable valid law, ordinance, rule
or regulation and with the orders, rules and regulations of The Canadian
Fire Underwriters Association, or any other body hereafter constituted
exercising similar functions, and with the requirements of all policies of
public liability, fire and the kinds of insurance at the time in force with
respect to the Demised Premises or any part thereof.
13.3 The Tenant covenants and agrees that it will carry on its business on the
Demised Premises continuously during the Term.
ARTICLE 14- CERTAIN RIGHTS AND DUTIES OF LANDLORD
14.1 The Tenant will permit the Landlord and authorized representatives of the
Landlord to enter into the Demised Premises at any time in case of
emergency and at all reasonable times upon reasonable notice during usual
business hours for the purpose of inspecting the same and of ascertaining
whether the Tenant has failed or neglected to perform any act which it is
required to perform under the provisions of the Lease, and also the
Landlord shall be permitted to enter as aforesaid for the purpose of making
any necessary repairs to the Demised Premises and performing any work
therein, which the Tenant has failed to do, that may be necessary to comply
with any valid law, ordinance, rules or regulations of The Canadian Fire
Underwriters, or of any public authority, or any similar body, or to comply
with the requirements of insurance policies then in force with respect to
the Demised Premises, provided that nothing herein shall imply any duty
upon the part of the Landlord to do or to pay for any work which under any
provision of the Lease the Tenant may be required to perform, and the
performance thereof by the Landlord in the event the Tenant does not
perform the same after demand shall not constitute a waiver of the Tenant's
default in failing to perform the same.
14.2 The Tenant upon paying the Basic Rent, Additional Rent and all other
charges herein provided for, and observing and keeping the covenants,
agreements and conditions of this Lease on its part to be kept, shall
lawfully and quietly enjoy, hold, occupy, control and manage the Demised
Premises during the Term without
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hindrance or molestation of the Landlord, or any person or persons claiming
under the Landlord, save as expressly provided by the Lease.
ARTICLE 15- CONDITIONAL LIMITATIONS DEFAULT PROVISIONS
15.1 In case the Term or any of the goods and chattels of the Tenant shall be at
any time seized in execution or attachment by a creditor of the Tenant or
the Tenant shall make any assignment for the benefit of creditors or become
bankrupt or insolvent or take the benefit of any Act now or hereafter in
force for bankrupts or insolvent debtors, or, if the Tenant is a
corporation and any order shall be made for the winding-up of the Tenant,
or other termination of the corporate existence of the Tenant or a Receiver
or Receiver-Manager is appointed for the Tenant under any Debenture or
other security or by Court Order or otherwise, then in any such case the
Lease shall at the option of the Landlord immediately cease and terminate
and the Term shall immediately become forfeited and void and the then
current month's rent and the next ensuing three (3) month's rent shall
immediately become due and be paid and the Landlord may, without notice,
re-enter and take possession of the Demised Premises as though the Tenant
or other occupant or occupants of the Demised Premises was or were holding
over after the expiration of the Term of Lease without any right
whatsoever.
15.2 During the Term, or any renewal, the Tenant shall make default in the
payment of any rent due under the Lease, and such default shall continue
for three (3) days after notice thereof by the Landlord, the Lease shall
cease and come to an end on the date specified in the said notice, which
date shall not be less than three (3) days after the delivery of such
notice, and the Tenant will then quit and surrender the Demised Premises to
the Landlord.
15.3 During the Term or any renewal thereof the Tenant shall not observe,
perform or keep any of the other covenants in the Lease and such default
shall continue for three (3) days after written notice thereof by the
Landlord to the Tenant, or if the Tenant fails to proceed promptly and with
all due diligence to cure such default, then and in any such case, unless
the default upon which said notice was based has been cured in the meantime
the Lease shall cease and come to an end on the day specified in the said
notice, which date shall not be less than three (3) days after delivery of
such notice, and the Tenant will then quit and surrender the Demised
Premises to the Landlord, provided that in the event of a default which is
capable of being cured but which cannot with due diligence be cured within
a period of three (3) days, the three (3) day period shall be extended for
such time as shall allow the Tenant proceeding promptly and with all due
diligence a reasonable opportunity to cure such default.
15.4 All costs, charges and expenses incurred by the Landlord in recovering or
enforcing payment of monies owing hereunder or in enforcing the terms and
conditions of the Lease, whether or not any default be cured within the
time allowed, including the costs of the Landlord as between solicitor and
own client on a lump sum basis, expenses of taking possession of the
Demised Premises and realizing upon goods and chattels of the Tenant, shall
be paid by the Tenant and such sums shall be deemed to be rent payable
under the Lease.
15.5 No remedy conferred upon or reserved to the Landlord herein or by law or
otherwise shall be considered exclusive of any other remedy, but the same
shall be cumulative with and in addition to every other remedy available to
the Landlord, and all such remedies may be exercised concurrently as well
as individually from time to time, and as often as the Landlord shall deem
fit.
ARTICLE 16- DISTRESS
16.1 The Tenant waives and renounces the benefit of any present or future statue
taking away or limiting the Landlord's right of distress, and covenants and
agrees that notwithstanding any such statute none of the goods and chattels
of the Tenant on the Demised Premises at any time during the Term shall be
exempt from levy by distress for rent in arrears.
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ARTICLE 17- VOIDANCE OF LEASES VACANT OR IMPROPER USE
17.1 It is hereby further declared and agreed between the Landlord and Tenant
that in the case the said Premises or any part thereof become and remain
vacant and unoccupied for the period of fifteen (15) consecutive days, or
be used by any other person or persons, or for any other purpose than as
above provided, without the written consent of the Landlord, the Lease
shall, at the option of the Landlord, cease and be void and the Term of
Lease shall expire and be at an end, anything herein before to the contrary
notwithstanding, and the then current month's rent and an additional three
(3) months' rent shall thereupon become immediately due and payable and the
Landlord may re-enter and take possession of the Demised Premises as though
the Tenant or other occupant or occupants of the Demised Premises, was or
were holding over after the expiration of the Term of Lease, and the
balance of the Term of Lease shall be forfeit; or in such case instead of
determining the Lease as aforesaid and re entering upon the Demised
Premises, the Landlord may take possession of the Demised Premises or any
part of parts; and let and manage the same and grant any lease or leases
thereof upon such terms as to the Landlord may appear to be reasonable, and
demand, collect, receive and distrain for all rental which shall become
payable in respect; and apply the said rental after deducting all expenses
incurred in connection with the Demised Premises and in the collection of
the said rent, including reasonable commission for the collection thereof
and the management of the Demised Premises, upon the rent hereby reserved,
and the Landlord, and every agent acting for the Landlord from time to time
shall, in so acting, be the agent of the Tenant who alone shall be
responsible for any monies except those actually received, notwithstanding
any act, neglect, omission or default, of any such agent acting as
aforesaid.
ARTICLE 18- WATER AND GAS DAMAGE
18.1 The Landlord shall not be liable for any damage to any property at any time
upon the Demised Premises arising from gas, steam, water, rain or snow,
which may leak into, issue and flow from any part of the Building, or from
the gas, water, steam or drainage pipes, sprinklers, or plumbing works of
the Building or from any other place or quarter, or for any damage caused
by or attributable to the condition or arrangement of any electric or other
wires in the Building.
ARTICLE 19- WATER
19.1 The Landlord agrees to supply normal water consumed on the Demised Premises
and the cost of such supply will be borne by the Tenant in its
Proportionate Share, but in the event of any abnormal consumption of water,
either by reason of the character of the business carried on by the Tenant,
or by the use of mechanical or other contrivances, the Tenant consents to
the installation of a water meter at his own expense, if necessary, and
further agrees to pay for the excess water consumption on the Demised
Premises over and above his Proportionate Share.
ARTICLE 20-SIGNS
20.1 It is further agreed by and between the Landlord and the Tenant that no
sign, advertisement or notice shall be inscribed, painted or affixed by the
Tenant on any part of the outside or inside of the Building whatsoever,
unless of such manner, colour, size and style and in such places upon or in
the Building as shall be consented to in writing by the Landlord and
furthermore, the Tenant, on ceasing to be the Tenant of the Demised
Premises, will before removing his goods and fixtures from the Demised
Premises, cause any sign as aforesaid to be removed or obliterated at his
own expense and in a workmanlike manner to the satisfaction of the
Landlord.
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ARTICLE 21-ILLUMINATION OF DISPLAY WINDOWS
21.1 The Tenant shall keep the display windows of the Demised Premises suitably
illuminated during the business hours of the Building as such hours may be
determined from time to time by the Landlord and during such other
reasonable hours as the Landlord may determine.
ARTICLE 22 - NUISANCE OR MENACE
22.1 The Tenant will not carry on or perform or suffer or permit to be carried
on, performed or suffered on the Demised Premises any business practice or
act or engage in any activity which may be deemed a nuisance or a menace or
which in any way may injure the Building.
ARTICLE 23- NO ABATEMENT OF RENT
23.1 Save and except where the Landlord receives insurance proceeds on account
of the cases noted herein, there shall be no abatement from or reduction of
the Basic Rent or Additional Rent due hereunder, nor shall the Tenant be
entitled to damages, losses, costs or disbursements from the Landlord
during the term hereby created on, caused by or on account of fire (except
pursuant to Article 12 where total damage or destruction shall occur),
water, sprinkler systems, partial or temporary failure or stoppage of heat,
light, elevator, live steam or plumbing service in or to the Demised
Premises or in or to the Building, whether alterations, repairs, renewals,
improvements, structural changed to the Demised Premises or to the
Buildings, or the equipment or systems supplying the said services or from
any cause whatsoever; provided that the said failure or stoppage shall be
remedied within a reasonable time.
ARTICLE 24- RIGHT TO SHOW PREMISES
24.1 The Tenant will permit the Landlord to exhibit the Demised Premises during
the last six (6) months of the Term to any prospective tenant and will
permit all persons having written authority from the Landlord to view the
Demised Premises at all reasonable hours.
ARTICLE 25- ASSIGNMENT, SUBLETTING PARTING WITH POSSESSION
25.1 The Tenant shall not assign the Lease or sublet or part with possession of
all or part of the Demised Premises without the prior written consent of
the Landlord, which consent shall not be unreasonably withheld, provided
however, such consent to any assignment or subletting shall not relieve the
Tenant from its obligations for the payment of rent and for the full and
faithful observance and performance of the covenants, terms and conditions
herein contained.
ARTICLE 26- LANDLORD'S RIGHTS
26.1 Provided further and notwithstanding anything hereinbefore set forth:
(a) if at the time of any proposed assignment or subletting, and from time
to time, the Tenant proposes to assign the Lease or sublet the Demised
Premises, the Tenant shall send to the Landlord a notice setting forth
the name and address of the proposed assignee or subtenant and such
information as to the nature of its business and its financial
responsibility and standing as the Landlord may reasonably require,
and all the terms and conditions of the proposed assignment or
sublease;
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(b) the Tenant shall have the right without the consent of the Landlord to
assign the Lease to a company incorporated or to be incorporated by
the Tenant, provided that the Tenant owns or beneficially controls all
of the issued and outstanding shares in the capital of the company.
Such assignment shall, however, not relieve the Tenant from its
obligations for the payment of rent and for the full and faithful
observance and performance of the covenants, terms and conditions
herein contained; and
(c) no assignment of the Lease shall be valid unless within the ten (10)
days after the execution; the Tenant shall deliver to the Landlord:
i) a duplicate original of such assignment duly executed by the
Tenant, and
ii) an instrument duly executed by the assignee, in form satisfactory
to the Landlord wherein such assignee shall assume the Tenant's
obligations for the payment of rent and for the full and faithful
observance and performance of the covenants, terms and conditions
herein contained.
ARTICLE 27- PAYMENT OF LANDLORD'S EXPENSES
27.1 If at any time an action is brought for recovery of possession of the
Demised Premises, or the recovery of Basic Rent or any part; or because of
a breach by act or omission of any other covenant herein contained on the
part of the Tenant, and a breach is established, the Tenant shall pay to
the Landlord all expenses incurred by the Landlord in the enforcement of
its rights and remedies hereunder, including all solicitor's fees.
ARTICLE 28 LANDLORD'S RIGHT OF RELET IN CASE OF VACANCY
28.1 In the event that the Demised Premises shall be deserted or vacated, the
Landlord shall have the right, if it thinks fit, to enter the same, as the
agent of the Tenant, either by force or otherwise without being liable to
any prosecution therefor, and to relet the Demised Premises as the agent
and at the risk of the said Tenant and to receive Basic Rent therefor.
ARTICLE 29- TRANSFER OF SHARES OF TENANT
29.1 If the Tenant is a corporation or if this Lease is assigned as aforesaid
with or without the consent of the Landlord to a corporation, and if at any
time during the Term of Lease any part or all of the corporate shares or
voting rights of shareholders shall be transferred by sale, assignment,
bequest, inheritance, trust, operation of law or other disposition, or
treasury shares be issued so as to result in a change in the control of
said corporation by reason of ownership of greater than fifty (50%) percent
of the voting shares of the corporation or otherwise, then and so often as
such a change of control shall occur, the Tenant shall notify the Landlord
in writing of such changes and the Landlord shall have the right to
terminate the Lease and the Term of Lease at any time after such change of
control by giving the Tenant sixty (60) days prior written notice of such
termination. This Article 29 shall not apply to the Tenant if on and from
the date of the Lease the control of the Tenant is represented by shares
listed on a recognized security exchange.
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ARTICLE 30- SHARE RECORDS
30.1 The Tenant shall, upon request of the Landlord, make available to the
Landlord from time to time for inspection or copying or both, all books and
records of the Tenant which, alone or with other data, show the
applicability or inapplicability of Article 29. If any shareholder or the
Tenant shall, upon request of the Landlord, fail or refuse to furnish to
the Landlord any data requested by the Landlord, which data alone or with
other data may show the applicability or inapplicability of Article 29, the
Landlord may terminate this Lease on sixty (60) days written notice as
aforesaid.
ARTICLE 31- RULES AND REGULATIONS
31.1 The Tenant and its clerks, servants and agents will at all times during the
occupancy of the Demised Premises observe and conform to such reasonable
rules and regulations as shall and may be made from time to time by the
Landlord and any such rules and regulations so made shall be deemed to be
incorporated in and form part of the Lease.
ARTICLE 32-INDEMNIFICATION OF LANDLORD
32.1 The Tenant shall indemnify the Landlord and save it harmless from and
against any and all loss (including loss of rentals payable by the Tenant
pursuant to the Lease), claims, debts, actions, damages, liability and
expense in connection with loss of life, personal injury or damage to
property arising from any occurrence in, upon or at the Demised Premises,
or the occupancy or use by the Tenant of the Demised Premises or any part
thereof; or occasioned wholly Or in part by any act or omission of the
Tenant, its agents, contractors, employees, servants, licensees,
concessionaires or invitees, or by anyone permitted to be on the Demised
Premises by the Tenant. In the event that the Landlord shall, without fault
on its part, be made a party to any litigation commenced by or against the
Tenant, or by reason or any act or omission of the Tenant, its agents,
contractors, employees, servants, licensees, concessionaires or invitees,
or by anyone permitted to be on the premises by the Tenant, then the Tenant
shall protect and hold the Landlord harmless and shall pay all costs,
expenses and legal fees incurred or paid by the Landlord in connection with
litigation.
ARTICLE 33- NAME OF BUILDING
33.1 The Tenant shall not refer to the Building by any name other than that
designated from time to time by the Landlord nor use such name for any
purpose other than that of the business address of the Tenant, provided
that the Tenant may use the municipal number of the Building assigned to it
by the Landlord instead of the name of the Building.
ARTICLE 34- ACCEPTANCE OF PREMISES
34.1 The Tenant shall examine the Demised Premises before taking possession
hereunder and unless the Tenant furnishes the Lanlord with a notice in
writing specifying any defect in the construction of the Demised Premises
or otherwise within seven (7) calendar days after such taking of
possession, the Tenant shall conclusively be deemed to have examined the
Demised Premises and to have found them in order, and such taking of
possession without giving the notice aforesaid within such seven (7) days
shall be conclusive evidence as against the Tenant that at the commencement
date the Demised Premises where in good order and satisfactory condition,
subject only to latent defects, if any. The Tenant agrees that there is no
promise, representation or undertaking by or binding upon the Landlord with
respect to any alteration, remodeling or redecoration or of installation of
equipment or fixtures in the Demised Premises, except such, if any, as are
expressly set forth in the Lease.
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ARTICLE 35- RIGHT OF TERMINATION
35.1 The Tenant further covenants and agrees that on the Landlord's becoming
entitled to re-enter upon the Demised Premises under any of the provisions
of the Lease, the Landlord in addition to all other rights shall have the
right to determine forthwith the Lease and the Term of Lease by giving
notice in writing addressed to the Tenant of its intention to do so and
thereupon Basic Rent and Additional Rent shall be computed apportioned and
paid in full to the date of such determination of the Lease, and any other
payment for which the Tenant is liable under the Lease, and any other
payment for which the Tenant is liable under the Lease shall be paid and
the Tenant shall forthwith deliver upon possession of the Demised Premises
to the Landlord and the Landlord may re-enter and take possession of the
same.
ARTICLE 36- OVERHOLDING
36.1 If the Tenant shall continue to occupy the Demised Premises after the
expiration of the Lease or without the consent of the Landlord and without
any further written agreement, the Tenant shall be a monthly tenant at
double the rent herein reserved, pro rata in relation to the periods of
time during which the Tenant is an overholding tenant, and on the terms and
conditions set out in the Lease except as to length of tenancy.
ARTICLE 37- DIRECTORY BOARD
37.1 The Tenant shall be entitled to have one name for its company inserted in
the Directory Board of the Building and the Landlord shall design the style
of such identification, and the Director Board shall be located in an area
designated by the Landlord in the main lobby.
ARTICLE 38- ACCRUAL OF BASIC RENT
38.1 Basic Rent shall be considered as annual and accruing from day to day and
where it becomes necessary for any reason to calculate such rent for an
irregular period of less than one year, any appropriate apportionment and
adjustment shall be made. Where the calculation of any additional rental is
not made until after the termination of the Lease, the obligation of the
Tenant to pay such additional rental shall survive the termination of the
Lease and such amounts shall be payable by the Tenant upon demand by the
Landlord.
ARTICLE 39- TRANSFER BY LANDLORD
39.1 In the event of a sale, transfer or lease by the Landlord of the Building
or a portion thereof containing the Demised Premises or the assignment by
the Landlord of the Lease or any interest of the Landlord hereunder, the
Landlord shall, without further written agreement, to the extent that such
purchaser, transferee or lessee has become bound by the covenants and
obligations of the Landlord hereunder, be freed, released and relieved of
all liability or obligations under the Lease.
ARTICLE 40- LAWS OF PROVINCE APPLY
40.1 The Lease shall be deemed to have been made in and shall be construed in
accordance with the laws of the Province of British Columbia.
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ARTICLE 41- LEASE ENTIRE AGREEMENT
41 1 The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions, expressed or implied, collateral or
otherwise, forming part of or in any way affecting or relating to the Lease
or the Demised Premises, save as expressly set out in the Lease and that
the Lease, including the Schedules attached and the Rules and Regulations,
constitutes the entire agreement between the Landlord and the Tenant and
may not be modified except as herein explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by the
Landlord and the Tenant and the Covenantor, if any. Notwithstanding the
foregoing the Tenant shall remain liable to pay for those improvements in
the Demised Premises which have been made by the Landlord for or on behalf
of the Tenant and which are in excess of the work otherwise required to be
done by the Landlord, and the Landlord's fee for supervision and overhead.
ARTICLE 42- REGISTRATION
42.1 The Tenant covenants and agrees that the Landlord shall not be obliged to
execute or deliver the Lease in form registrable under the Land Title Act,
British Columbia or any other statue in pari material therewith and that
any requirement to produce plans acceptable to the Vancouver Land Title
Office shall be at the cost and the sole responsibility of the Tenant.
ARTICLE 43- INTERPRETATION
43.1 Unless the context otherwise requires, the word "Landlord" wherever it is
used herein shall be construed to include and shall mean the Landlord, its
successors and/or assigns, and the word "Tenant" shall be construed to
include and shall mean the Tenant and when there are two or more tenants,
or two or more persons bound by the Tenant's covenants herein contained,
their obligations hereunder shall be joint and several. The word "Tenant"
and the personal pronoun "it" relating thereto and used therewith shall be
read and construed as "Tenants", and "his", "her", "its" or "their"
respectively, as the number and gender of the party or parties referred to
each require and the number of the verb agreeing therewith shall be
construed and agree with the said word or pronoun so substituted. Time
shall be of the essence in all respects hereunder.
ARTICLE 44- SEVERABLE
44.1 The Landlord and the Tenant agree that all of the provisions of the Lease
are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate
provision hereof. Should any provision or provisions of the Lease be
illegal or not enforceable, it or they shall be considered separate and
severable from the Lease and its remaining provisions shall remain in force
and be binding upon the parties hereto as though the said provision or
provisions had never been included.
ARTICLE 45- CAPTIONS
45.1 The captions appearing within the body of the Lease have been inserted as a
matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of the Lease or of any provision hereof.
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ARTICLE 46- MISCELLANEOUS COVENANTS
46.1 During the Term of Lease, or any renewal; the Tenant shall not suffer or
permit any builders' or other liens or encumbrances for work, labour,
services or material to be filed against or attached to the Demised
Premises or any portion thereof; if any such lien or encumbrance be filed
or registered, the Tenant shall procure discharge of the same within
fifteen (15) days after the same has come to its notice or attention;
provided that if the Tenant in good faith desires to contest the amount or
validity of any claim for which a lien is registered and so notified the
Landlord, and if the Tenant shall have deposited with the Landlord or paid
into Court in any action with respect to such lien the amount claimed plus
a reasonable amount for costs, the Tenant may thereupon defer payment of
such claim or discharge of such lien for such period as is reasonably
necessary to determine the claim, provided that neither the Demised
Premises nor the Tenant's leasehold interest hereunder may be allowed to
become liable to forfeiture or sale by reason of such deferment.
46.2 Subject to the provisions of Article 15; upon termination of the Lease for
any reason whatsoever, except upon the sale of the Land and the Buildings
by the Landlord to the Tenant, the Tenant shall surrender to the Landlord
the Demised Premises and all Building Equipment upon the Demised Premises,
together with all alterations and replacements and additions thereto
(except the Tenant's Equipment) in good order, condition and repair.
46.3 The Landlord shall have the right to transfer Title to the Demised Premises
at any time or assign its interest under the Lease.
46.4 In the event the Tenant enters into any sublease the Tenant shall not
collect rental from the sublease more than one month in advance of the due
date hereof.
46.5 It is agreed by and between the parties hereto that the Landlord may
mortgage the Demised Premises, the said mortgage to be registered in
priority to the Lease, and the Tenant covenants and agrees to execute
postponements of any encumbrances it may place upon the Title to the
Demised Premises to protect its interest under the Lease for the purpose of
allowing any such mortgagee to have priority over any encumbrance the
Tenant may register as aforesaid and it is further agreed that the Landlord
may assign the rents hereunder to such mortgagee and notice to that effect,
signed by the Landlord, shall be sufficient authority for the Tenant to pay
the rent, or such portion thereof as is assigned to the mortgagee and the
receipt of the mortgagee shall be a full and adequate discharge to the
Tenant for such payment.
46.6 The failure of either party to insist upon strict performance of any
covenant or condition contained in the Lease or to exercise any right or
option hereunder shall not be construed as a waiver or relinquishment for
the future of any such covenant, condition, right or option; the acceptance
of any rent from or the performance of any obligation hereunder by a person
other than the Tenant shall not be construed as an admission by the
Landlord of any right, title or interest or such person as a sublessee,
assignee, transferee or otherwise in the place and stead of the Tenant.
46.7 Any notice required or permitted to be given shall be in writing and shall
be deemed to have been duly given if delivered by hand or mailing by
prepaid mail as follows:
TO THE LANDLORD:
YALETOWN CENTRE INVESTMENTS LTD.
Plaza of Nations, Management Office
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TO THE TENANT:
Intellicom Canada Communications Inc.
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or to such other address as the respective parties may in writing
advise and any such notice shall be deemed to have been given and
received, if delivered when delivered, and if mailed, forty-eight (48)
hours following the mailing thereof in British Columbia, Saturdays,
Sundays, holidays and days during intermption of ordinary mail
services excepted.
46.8 The Tenant hereby accepts the Lease subject to the conditions, restrictions
and covenants herein set forth and implied.
46.9 The Lease maybe executed in several counterparts, each of which shall be
deemed an original and which together shall constitute one and the same
instrument.
46.10 Wherever the singular or masculine or neuter are used in the Lease, the
same shall be construed to include the plural, neuter, feminine or body
corporate where the context so requires, or where necessary to have
application to a party hereto and the Lease shall be read with all
necessary grammatical and terminological changes thereby rendered
necessary.
46.11 The Lease and the covenant and agreements herein contained shall enure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, legal personal representatives, successors and permitted
assignees and sublessees.
46.12 Time shall be of the essence of the Lease and each provision hereof.
46.13 The Tenant shall have the license in common with other Tenants in the
Building to use the area outlined in blue on Schedule "A" attached hereto
for the purposes of loading, unloading and for the use of washroom
facilities, provided that the Tenant agrees to leave any loading area
adjacent to the Buildings free and clear of major obstructions to the other
Tenants.
46.14 Nothing herein contained shall be construed as creating the relationship
of principal and agent, or of partners or joint ventures between the
parties hereto, the only relationship being that of the Landlord and
Tenant.
46.15 No debris, garbage, trash or refuse shall be placed or left or be
permitted to be placed or left in, on or upon any part of the Common Areas
outside of the Demised Premises, but shall be deposited by the Tenant in
areas and at times in a manner specifically designated by the Landlord from
time to time; should any of the items herein mentioned be of a perishable
nature, the same shall be kept in a properly refrigerated area provided at
its cost by the Tenant; should there be costs for removal of said items
additional to the removal service provided by the City of Vancouver or any
independent disposal services should the City of Vancouver or such
independent disposal service charge additional costs for such service, then
the Tenant shall pay those costs.
46.16 In the event that the Landlord, during the term hereof or any renewal
intends to demolish the Building containing the Demised Premises, the
Landlord may give such notice of intent to demolish and after ninety (90)
days have expired after the due delivery of such notice, the Lease shall be
at an end and the Tenant does hereby covenant to deliver up possession.
46.17 In compliance with the City of Vancouver's by-laws the Building is deemed
a non-smoking premise. Smoking is not permitted in the Building including
but not limited to the elevators, stairwells, hallways, washrooms, and
underground parking.
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ARTICLE 47- EXPROPRIATION
47.1 If the whole or any part of the Demised Premises or the Building shall be
taken by any public authority under the power of eminent domain or
expropriation, the term hereby granted shall cease from the day possession
shall be taken for such public purposes insofar as the premises so taken
comprises part of the Demised Premises, and the Tenant shall be liable only
for rent in respect of the Demised Premises or part thereof so taken up to
the day of the taking, and if less than the whole be so taken, the Landlord
may at its option cancel and terminate this Lease with respect to the
remainder of the Demised Premises, but notice of such cancellation must be
given to the Tenant within thirty (30) days after notice of such taking has
been received by the Landlord but if the Landlord shall not elect to cancel
this Lease, then the Tenant shall remain in possession of the remainder of
the Demised Premises and the rent thereof shall be reduced in proportion
that the floor area of the space taken in the Demised Premises bears to the
whole rentable area of the Demised Premises. All compensation or damages
awarded in respect of such taking of the Demised Premises and any
diminution in value of the remainder thereof shall be the property of the
Landlord, but the Tenant shall be entitled to receive such compensation or
damages as it may be able to establish against such public authority in
respect of loss of its business, depreciation of and cost of removal of
stock and fixtures.
ARTICLE 48- ESTOPPEL CERTIFICATE
48.1 The Tenant covenants with the Landlord to provide upon the request of the
Landlord an estoppel certificate binding upon the Tenant, confirming:
(a) that the Tenant has accepted possession of the Demised Premises and
that installments of Basic Rent hereunder are then due and payable
from month to month;
(b) whether or not the Landlord has carried out its obligations hereunder;
(c) that the Lease constitutes the entire agreement in relation to use and
occupation of the Demised Premises between the Tenant and the
Landlord; and
(d) such other matters as the Landlord may reasonably require.
ARTICLE 49-OBLIGATIONS OF THE COVENANTOR
49.1 The provisions of this Article shall apply in the event the Lease is
executed by a Covenantor.
49.2 In consideration of the Landlord entering into the Lease with the Tenant
and in further consideration of the sum of ONE ($1.00) DOLLAR now paid by
the Landlord to the Covenantor and other good and valuable consideration
(the receipt of which is hereby acknowledged by the Covenantor), the
Covenantor agrees under seal with the Landlord as follows:
(a) the Covenantor shall be jointly and severally liable with the Tenant
as principal debtor, and not as guarantor or surety, for due payment
of all Basic Rent or other monies payable at the times and in the
manner provided in the Lease;
(b) the Covenantor unconditionally agrees and covenants with the Landlord
to cause the Tenant to duly observe, perform and keep each and every
of the other covenants agreements, stipulations, obligations,
conditions and other provisions of the Lease to be observed, performed
and kept by the Tenant at the time and in the manner provided in the
Lease and, in the event of default by the Tenant, to duly observe,
perform and keep such covenants, agreements, stipulations, obligations
and conditions himself;
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and from all losses, damages, costs and expenses which the Landlord
may sustain, incur, or become liable for by reason of:
(i) the failure, for any reason whatsoever, of the Tenant or the
Covenantor to pay all rent or other monies payable at the times
and in the manner provided in the Lease;
(ii) the failure, for any reason whatsoever, of the Tenant, or the
Covenantor on behalf of the Tenant, to observe, perform and keep
each and every of the other covenants, agreements, stipulations,
obligations, conditions and other provisions of the Lease to be
observed performed and kept by the Tenant; or
(iii)any act, action or proceeding of or by the Landlord for or in
connection with the enforcement of the Lease including without
limitation the provisions of this Article 49.
(d) with respect to the Covenantor's joint and severable liability with
the Tenant as principal debtor in accordance with Article 49.2(a) such
obligations shall survive any act, omission, actions or proceedings
which might release or diminish the liability of any guarantor or
surety of the due payment of any Basic Rent or other monies payable
pursuant to the Lease.
(e) with respect to the Covenantor's obligations pursuant to Article 49:
(i) the Covenantor hereby renounces and waives the benefit of
discussion and compensation and any right to require the Landlord
to first proceed against the Tenant or to pursue any other remedy
whatsoever which may be available to the Landlord before
proceeding against the Covenantor;
(ii) the Covenantor acknowledges that any act or failure to act of or
by the Landlord against or in respect of the Tenant or the
Demised Premises pursuant to the terms of the Lease, and, without
limiting the generality of the foregoing, any neglect of
forbearance or delay by the Landlord in taking any steps to
enforce the observance, performance and keeping of the covenants,
agreements, stipulations, obligations and other provisions of the
Lease, any extension of time which may be given by the Landlord
from time to time to the Tenant and any release which may be
given by the Landlord from time to time to the Tenant shall not
release or diminish the liability of the Covenantor pursuant to
Article 49;
(iii)the Covenantor agrees that any alterations of the terms of the
Lease agreed to by the Landlord and the Tenant from time to time,
whether material or not, or any assignment of the Lease by the
Landlord or the Tenant or by any trustee, receiver or liquidator
of the Tenant shall not release or diminish the liability of the
Covenantor pursuant to Article 49.
(f) the Covenantor shall execute and deliver such further assurances as
the Landlord may reasonably require including, should the Landlord so
elect upon the occurrence of any event described in Articles 13.1 and
13.2 or upon re-entry or termination of the Lease in accordance with
Article 13, a lease of the Leased Premises for a term equal in
duration to the residue remaining unexpired of the Term, on the same
terms and conditions as the Lease;
(g) in the event of more than one Covenantor to the lease then the term
"Covenantor" shall be taken to apply to all such Covenantors, who
shall be jointly and severally liable to the Landlord;
(h) the obligations of the Covenantor shall survive the expiration of the
Term to the extent that there is then any default under the Lease and
further, shall survive any earlier termination of the Term and the
Covenantor shall remain liable on any renewal notwithstanding any
variation in the terms of any such renewal lease.
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(i) the liability of the Covenantor shall continue notwithstanding any
release or discharge of the Tenant in any receivership, bankruptcy,
winding-up, or other creditor's proceedings or the rejection,
disaffirmane or disclaimer of the Lease in any proceeding or the
repossession of the Demised Premises by the Landlord and the
Covenantor shall, at the request of the Landlord, execute a new lease
as a tenant for the period equal to the balance of the Term remaining
hereunder, in the event of any disclaimer of this Lease by the
Tenant's trustee.
ARTICLE 50- ADDITIONAL COVENANTS
OPTION TO RENEW
50.1 The Tenant, provided it is not in default hereunder shall have the option
of renewing the Lease for ONE (1) further term of THREE (3) years, all
terms of the renewal lease to be the same as the Lease with the exception
of this option to renew which shall be deleted, and with the further
exception of the amount of Basic Rent to be paid. This option to renew
shall be exercised by the Tenant serving written notice exercising the
option upon the Landlord in the manner of serving written notice provided
in the Lease. Notice of intention to exercise such option shall be given by
the Tenant to the Landlord six (6) months prior to the Termination Date.
50.2 Should the Tenant serve written notice exercising the option in the
previous paragraph, the Landlord and the Tenant shall negotiate with the
aim of agreeing on the amount of Basic Rent to be paid during the THREE (3)
years option term. Should the Landlord and the Tenant be unable to reach an
agreement four (4) months prior to commencement of the renewal term, either
party may submit the question of what would be proper market value for the
Basic Rent to be paid for the Demised Premises during the THREE (3) years
option term to arbitration pursuant to the Commercial Arbitration Act,
British Columbia. Until such time as the parties agree to a renewal Basic
Rent or until an arbitrator renders a decision following an arbitration,
the Tenant shall pay Basic Rent equal to the Basic Rent Payable during the
last year of the Term plus fifteen (15%) percent.
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