EXHIBIT 10.1
LEASE AGREEMENT BY AND BETWEEN
KENSINGTON VILLAGE HOLDINGS, LTD. AND
BUILDER'S REALTY (CALGARY LTD.) DATED
OCTOBER 31, 1996 FOR THE PROPERTY LOCATED AT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
STANDARD LEASE
BETWEEN
KENSINGTON VILLAGE
HOLDINGS LTD.
(Lessor)
AND
BUILDERS REALTY (CALGARY) LTD.
(Lessee)
FOR ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇
▇▇▇. ▇, ▇▇▇▇ - ▇▇▇. 31, 2001
THIS LEASE MADE AS OF THIS 31 DAY of October, 1996.
BETWEEN: KENSINGTON VILLAGE HOLDINGS LTD. a duly chartered company under the
laws of ALBERTA having its head office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ (herein called the "Landlord")
AND: BUILDERS REALTY (CALGARY) LTD. a duly chartered company under the laws
of ALBERTA having its head office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇.▇. ▇▇▇▇▇▇▇ herein
called the "Tenant")
(herein called the "Covenantor")
WITNESSETH that in consideration of the mutual covenants, conditions and
agreements herein contained, the Landlord, Tenant, and Covenantor do agree as
follows:
ARTICLE ONE
DEFINITIONS
1.01 DEFINITIONS. In this Lease, unless there is something in the context
inconsistent therewith, the Landlord and Tenant agree that:
(a) "Commencement Date" means the 1st day of NOVEMBER, 1996.
(b) "Building" means that certain building or buildings (and improvements
therein and thereon) situated on the Lands and outlined in green in Schedule
"A".
(c) "Common Area" means those areas of the Lands and the Building that are
designated (which designation may be changed from time to time) by the
Landlord as common areas set aside by the Landlord for the common use of the
Tenant, its licensees, and invitees, in common with others entitled to the
use of such areas in the manner and for the purposes permitted by this Lease.
The Common Area includes, without limitation, parking areas, roadways,
sidewalks, loading areas, and landscaped areas and improvements thereon, the
exterior walls, roof, foundations of the Building, and all other fixtures,
fittings, or structural members of the Building which are not included within
the Premises or other premises forming a part of the Building which are
leased to tenants thereof.
(d) "Common Costs" means the total, without duplication, of the costs
incurred by the Landlord for the continued management, operation,
maintenance, and repair of the Lands and the Building, including, without
limitation, the following:
i. the cost of repairs, maintenance of, and such replacements to the Common
Area as are properly chargeable in accordance with generally accepted
accounting principles to operating expenses as distinguished from capital
replacements or improvements;
ii. the cost of Common Area landscaping and gardening, line repainting,
rental of signs and equipment, lighting, security protection, sanitary
control, refuse removal, removal of snow and ice, painting, window cleaning,
and otherwise maintaining the Common Area of the Building;
The cost of wages paid for maintenance and operating personnel, including,
without limitation, payments for Workers' compensation, Unemployment
Insurance, vacation pay, Canada Pension Plan, and other fringe benefits,
whether or otherwise, but to extent only that such wages are directly
attributable to the maintenance , operation, and repair of the Lands and the
Building;
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the cost of service contracts with independent contractors in respect of the
maintenance, operation, and repair of the Lands and the Building;
the costs of operating, maintaining, repairing, and replacing plumbing,
electrical, heating, water, sewer, and other utility systems and services in
respect of the Lands and the Building;
the cost of insurance against loss or damage to the Lands and the Building by
fire and other perils generally included in so called "Extended Coverage
Endorsement" and such other perils which in the reasonable opinion of the
Landlord should be insured against, but to limits not exceeding the replacement
cost thereof; no representations, covenants, warranties, guarantees, promises,
or agreements (verbal or otherwise) with the Tenant other than those contained
in this lease; that no agreement collateral hereto will be binding upon the
Landlord unless made in writing and signed by the Landlord; and, that this Lease
constitutes the entire agreement between the Landlord and Tenant.
19.08 NOTICES. Any notice, request, or demand herein provided or permitted to be
given hereunder shall be sufficiently given if personally served or mailed by
registered mail as follows:
(a) to the Landlord: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(b) to the Tenant: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Any notice mailed as aforesaid shall for the purposes of this Lease be presumed
to have been given three (3) business days following the day on which such
notice is mailed as aforesaid. Any party may at any time give notice in writing
to the others of any change of address, and after the giving of such notice the
address therein specified will be deemed to be the address of such party for the
purpose of giving notices hereunder.
19.09 TIME OF ESSENCE. Time will be of the essence of this Lease.
19.10 SIGNING OF LEASES. The Landlord will not be deemed to have made an offer
to the Tenant by furnishing to the Tenant a copy of this Lease with particulars
inserted; and, notwithstanding that installments of rent may be received by the
Landlord when this lease is received by it for signature to contractual or other
rights will exist or be created between the Landlord and Tenant until such time
as all parties to this Lease have executed the same.
19.11 RELATIONSHIP. Nothing herein contained will at any time create or be
construed as creating a joint venture, partnership, or relationship between the
parties other than that of Landlord and Tenant.
19.12 GOVERNING LAW. This Lease will be construed and governed by the laws of
the Province of Alberta.
19.13 GENDER. Words in the singular will include the plural, and words in the
plural will include the singular, and words in the masculine gender will include
feminine and neuter genders where the context so requires.
19.14 COVENANTOR'S CLAUSE. In consideration of the grant of this Lease by the
Landlord and, as a condition thereof, the Covenantor hereby covenants with and
guarantees to the Landlord the performance and observance of all of the
covenants and agreements of the Tenant to be performed or observed by the Tenant
hereunder, including the payment of Basic Rent and Additional Rent on the days
and at the times and in the manner specified in this Lease and, that if any
default be made by the Tenant, whether in payment of Basic Rent or Additional
Rent or in compliance with its obligations hereunder, the Covenantor will
forthwith indemnify the Landlord on demand for any such default. The Covenantor
further covenants with the Landlord that the Covenantor is jointly and severally
bound amount themselves and with the Tenant for the fulfillment of all
obligations of the Tenant under the Lease, and the Bankruptcy or other act of
the Tenant which might or could operate as a release of the Tenant of &II of its
obligations hereunder, shall not release or discharge the Covenantor from its
covenants herein. In the enforcement of its rights hereunder the Landlord may
proceed against the Covenantor as if the Covenantor was named Tenant hereunder.
The Covenantor hereby gives
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any rights to require the Landlord to proceed against the Tenant or to
proceed against or exhaust any security held from the Tenant or to pursue any
other remedy whatsoever which may be available to the Landlord before
proceeding against the Covenantor. No neglect or forbearance of the Landlord
in endeavoring to enforce observance of the Lease or obtain indemnification
as set forth herein, no extension of time which may be given by the Landlord
from time to time to the Tenant, and no other act or failure to act by the
Landlord shall release, discharge, or in any way reduce the obligation of the
Covenantor under the covenants contained herein. In the event of termination
of the Lease other than by surrender accepted by the Landlord or in the event
of disclaimer of the Lease pursuant to any stature, at the option of the
Landlord the Covenantor shall execute a new lease of the Premises demised by
the Lease between and Landlord as landlord and Covenantor as tenant for a
term equal in duration to the residue of the Term of the Lease remaining
unexpired at the date of such termination or such disclaimer. Such lease
shall contain the like Landlord's and Tenant's obligations respectively and
the like covenants, provisions, conditions, and agreement in all respects
(including the provision for re-entry) as are contained in the Lease.
19.15 JOINT AND SEVERAL LIABILITY. If two or more individuals, corporations,
partnerships, or other business associations, or any combination of two or
more thereof sign this Lease as Tenant, the liability of each such
individual, corporation, partnership, or other business association to pay
rent and perform all other obligations under this Lease will be deemed to be
joint and several. If the Tenant named in this Lease is partnership of other
business association, the members of which by law are subject to personal
liability, the liability of each such member shall be deemed to be joint in
several.
19.16 SPECIAL CLAUSES.
(A) OPTION TO RENEW. If the tenant shall have promptly paid the rent when
due hereunder, and shall have observed and performed the Tenant's covenants
herein, and shall, after the First day of JUNE, 2001, but on or before the
First day of JULY, 2001 by writing to the Landlord has given notice of its
desire to have the term of this Lease renewed, the Tenant shall have the term
of this Lease renewed for a period of five (5) years upon the conditions
herein set forth, except the right to renew, and except as to the Basic
Annual Rent during the renewal term which shall be mutually agreed upon
vii. the cost of public liability insurance against damage or loss
by reason (or on account of) bodily injuries to or the death of any person or
the destruction of or damage to the property of any person occurring on or
about the Lands and Building to such limits as the Landlord may from time to
time reasonably determine;
viii. the cost of rental insurance not to exceed one year's rent
from the Lands and the Building against loss of income to the Landlord in the
event of damage or destruction to the Lands, the Building, or any part of
either by reason of fire or other peril;
ix. the cost of insurance against other forms of loss or other
risk that the Landlord reasonably requires from time to time and which might
reasonably be obtained for like properties similarly situated and for amount
against which a prudent Landlord would insure itself;
x. the cost of real property taxes, rates, duties, and
assessments that may be levied, rated, charged, or assessed against the Lands
and the Building, including, without limitation, all local improvement rates
and charges, frontage taxes, water, school, hospital, and other taxes and
assessments, both general and special, rates, levies, and impositions,
general or specific, ordinary or extraordinary, foreseen or unforeseen, now
imposed, assessed, or levied or which may hereafter be imposed, assessed, or
levied by any federal, provincial, municipal, regional, school or other
statutory authority during the Term for municipal, school or other purposes
in respect of the Lands and the Building; and,
xi. the cost of supplying electricity, water, sewer services,
natural gas or other fuel, or utility services to the Lands or the Building.
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Common Costs shall not include any cost aforesaid incurred by, on
behalf of, or at the request of, an individual tenant or tenants and resulting
in a benefit to such individual tenant or tenants which is not of general
application to all tenants of the Lands. Common Costs shall be determined in
accordance with generally accepted accounting principles consistently applied.
(e) "Gross Rent" means the aggregate of basic rent referred to in Article
3.01 hereof and Additional Rent for Common Costs referred to in Article 3.03
hereof.
(f) "Lands" means the parcel or parcels of land together with the fixtures
and appurtenances thereto as more particularly described in SCHEDULE "B"
hereto.
(g) "Premises" means that portion of the Building more particularly shown
and outlined in red on Schedule "A" hereto.
(h) "Proportionate Share" means for the purposes of this Lease 4 8.9 5%,
provided that in the event of any alteration or addition to the Building or
the Lands resulting in a greater or lesser rentable area, the Landlord may,
from time to time, cause redetermination of the area of the Premises or the
area of all or any part of the rentable area of the Building by a qualified
quantity surveyor and, thereafter, upon notice to the Tenant. "Proportionate
Share" shall thereafter mean that proportion expressed as a fraction, the
numerator or which is the area of the Premises in square meters and the
denominator of which is the aggregate of all rentable area of the Building in
square meters and any certification thereof by a qualified quantity surveyor
shall be conclusive and binding thereafter on the parties hereto.
ARTICLE TWO
DEMISE AND TERM
2.01 DEMISE. The Landlord, in consideration of the rents, covenants,
agreements and conditions herein to be paid, observed, and performed by the
Tenants, does hereby demise and lease to the Tenant the Premises.
2.02 TERM. Subject to the terms and conditions of this Lease as hereinafter
set forth, the Tenant shall have and hold the Premises for the term of 5
years and 0 months (herein called the "Term") from and including the
Commencement Date, being, the 1st day of November, 1996, to and ending on the
31 day of October, 2001.
ARTICLE THREE
RENT, TAXES, AND OTHER CHARGES
3.01 BASIC RENT. The Tenant shall pay to the Landlord monthly in advance a
rental of $4,750 payable in lawful money of Canada (herein referred to as the
"Basic Rent") and all additional rental as hereinafter provided, commencing
on the Commencement Date and thereafter on the first day of each and every
month of the Term of this Lease without any deduction, defalcation, or
abatement save as herein expressly provided. Rental rates as established on #
19.16 (B).
3.02 PREPAID RENT. The Landlord acknowledges receipt from the Tenant of the
sum of $4,750 to be applied toward the last 1 months' rent of the Term
granted hereunder.
3.03 ADDITIONAL RENT FOR COMMON COSTS. The Tenant shall pay to the Landlord as
additional rent the Tenant's Proportionate Share of Common Costs in addition to
the Basic Rent hereinbefore provided. The Tenant's Proportionate Share of Common
Costs for the portion of the Term commencing on the Commencement Date and ending
December 31 of the year of the Commencement Date is estimated to be ($1,583 per
month) and the Tenant shall pay such amount to the Landlord in lawful money of
Canada in equal monthly installments in advance commencing on the Commencement
Date and thereafter on each day fixed for the payment of Basic Rent to and
including the first day of
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December in the year of the Commencement Date. Prior to commencement of each
ensuing calendar year of the Term, the Landlord shall deliver to the Tenant a
statement setting forth the Landlord's reasonable estimate of the Tenant's
Proportionate Share of Common Costs for such ensuing calendar year and
thereafter during such calendar year the Tenant shall pay to the Landlord
monthly in advance on each day fixed for the payment of Basic Rent an amount
equal to one-twelfth of the Tenant's Proportionate Share of Common Costs,
provided that in the calendar year in which the Term expires the Tenant's
Proportionate Share of Common Costs in respect of the calendar year shall be
paid proportionately by equal monthly installments over the remainder of the
term.
3.04 REPORTING ON TENANT'S PROPORTIONATE SHARE OF COMMON COSTS. As soon
as reasonably practical following the end of the period for which such
estimate payments of Tenant's Proportionate Share of Common Costs have been
made, the Landlord will furnish to the Tenant a statement showing the actual
amount of Tenant's Proportionate Share of Common Costs setting forth in
reasonable detail Common Costs incurred by the Landlord during such period
and the Landlord and the Tenant covenant and agree each with the other that
if an overpayment of Tenant's Proportionate Share of Common Costs has been
made by the Tenant, the Landlord will credit such amount to the Proportionate
Share of Common Costs for the ensuing period and, if there is no ensuing
period, such amount shall be paid to the Tenant, and if an amount remains
owing to the Landlord in respect of the Tenant's Proportionate share of
Common Costs, the Tenant will forthwith pay such amount to the Landlord. The
Tenant and the Landlord covenant and agree each with the other that the
covenants contained in the Article 3.04 shall survive notwithstanding
termination or expiration of this Lease.
3.05 ADDITIONAL RENT FOR MANAGEMENT. The Tenant shall pay to the Landlord as
additional rent monthly in advance at the time fixed for payment of Basic
Rent a sum which is 5% of the monthly Gross Rent referred to in 1.01(e)
hereof as a management fee to the Landlord for the management services of the
Landlord. Same is estimated to be $__________________ per month for the
balance of the calendar year of the year of the year of the Commencement Date.
3.06 RECOVERY OF ADDITIONAL RENT. The Tenant's Proportionate Share of Common
Costs, the management fee hereinbefore referred to, and any other sum
expressed to be payable to the Landlord hereunder as additional rent (herein
collectively referred to as "Additional Rent") shall be recoverable by the
Landlord from the Tenant in the same manner as Basic Rent reserved and in
arrears under the terms hereof.
3.07 INTEREST ON AMOUNTS IN ARREARS. When Basic Rent or any Additional Rent
(including interest thereon, if any) payable hereunder by the Tenant to the
Landlord is in arrears, the same shall bear interest at the rate of PRIME +
3% per centum per annum and such interest shall be and is agreed to be due
and payable on demand as additional rent reserved hereunder.
3.08 TENANT'S TAXES AND OTHER CHARGES. The Tenant will pay, as and when due,
to the authority to which same are owing:
(a) all taxes, licenses, rates, duties, and assessments imposed,
assessed, or levied by any lawful authority during the Term and relating to the
business carried on in and the use and occupancy of the Premises by the Tenant
(and every subtenant and licensee) and relating to personal property and all
business and trade fixtures and other improvements owned or installed by or on
behalf of the Tenant in, on, or affixed to the Premises, whether any such taxes,
licenses, rates, duties, and assessments are payable by law by the Tenant o by
the Landlord and whether or not same are allocated separately in respect of the
Premises; and,
(b) all charges, rates, and assessments imposed, assessed or levied by
any lawful authority during the Term of electricity, light, heat, power, water,
telephone, and utilities of whatsoever nature of kind (including works and
services in connection therewith) used in or supplied to the Premises.
Upon request by the Landlord, the Tenant will deliver promptly to the
Landlord, for inspection, receipts for payment of all charges payable by the
Tenant pursuant to the Article 3.08 which were due and payable up to one month
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prior to such request, and will furnish to the Landlord, upon request,
evidence of payments before the 31st day of January in each covering payments
for the preceding year.
3.09 NET LEASE. The Tenant will well and truly pay to the Landlord all Basic
Rent and Additional Rent required to be paid by the Tenant pursuant to this
Lease without any deduction, defalcation, abatement, or set-off whatsoever,
it being the intention of this Lease that all expenses, costs, payments, and
outgoings incurred in respect of the Premises, the Lands, and the Building
(unless otherwise expressly stipulated herein to the contrary) will be borne
by the Tenant and other tenants, and that rent will be absolutely net to the
Landlord.
3.10 IRREGULAR PERIODS. If, for any reason, it becomes necessary to
calculate Basic Rent or Additional Rent for irregular periods, an appropriate
pro rata adjustment will be made on a daily basis in order to compute such
rent for such irregular periods as at the date of termination of the Term.
3.11 DISPUTE AS TO COSTS. In the event of any dispute as to the amount of
any monies to be paid by the Tenant pursuant to this Lease, the certificate
of an independent chartered accountant appointed by the Landlord, determining
such amount, will be final and binding on the Landlord and Tenant.
3.12 POST-DATED CHEQUES. The Tenant agrees to deliver to the Landlord upon
occupancy pursuant to this Lease a series of post-dated cheques to cover the
monthly installments of Gross Rent and Additional Rent for management
hereinbefore reserved for the period ending December 31 in the year of the
Commencement Date and thereafter prior to January 1 in each year of the Term
a series of post-dated cheques to cover the monthly installments of Gross
Rent and Additional Rent for Management for each ensuring calendar year or
portion thereof of the Term of this Lease.
ARTICLE FOUR
QUALITY OF THE PREMISES AND USE OF THE PREMISES
4.01 EXAMINATION OF PREMISES. The Tenant will examine the Premises prior to
commencement of the Term, and the taking of possession of the Premises will
be conclusive evidence as against the Tenant that, at the time thereof, the
Premises were in good and satisfactory condition, except for latent defects.
4.02 POSSESSION AND USE OF PREMISES. The Tenant will take possession of the
Premises on the Commencement Date. The Tenant will not use or permit the
Premises or any part thereof to be used for any purpose other than real
estate offices without the prior written consent of the Landlord, whose
consent will not be unreasonably withheld.
4.03 NO NUISANCE, OVERLOADING, OR WASTE. The Tenant will not, at any time
during the Term, carry on or permit to be carried on, in the Premises or
elsewhere in the Building anything which is noxious or offensive, and will
not do or permit to be done anything whatsoever any time during the Term upon
the Premises or elsewhere in the Building which would annoy, disturb, or
cause nuisance or damage to the occupiers or owners of Lands and Premises
adjoining or in the vicinity of the Premises. The Tenant will not permit any
overloading of the floor of the Premises or elsewhere in the Building and
will not place thereon any heavy object without the prior written consent of
the Landlord. The Tenant will not cause any waste or damage to the Premises.
4.04 SIGNS. The Tenant will not erect, paint, display, place, affix or maintain,
or permit to be erected, painted displayed, placed, affixed or maintained, any
sign, decoration, pictures, lettering, or advertising matter of any nature or
kind whatsoever, either on the exterior walls of the Premises or on the Building
or Common Area (including, without limitation, in or on any windows or anywhere
in the interior of the Premises which is visible from the outside) without first
obtaining the Landlord's written consent in each instance, such consent not to
be unreasonably withheld. The Tenant shall, at its cost, acquire all requisite
municipal or other governmental permit which may be required to erect or
maintain any such approved sign or advertisement, and the Tenant also agrees
that any sign or advertisement that is placed or fixed to the exterior or any
outside part of the Lands and Building shall be maintained in a proper state of
repair and that it will indemnify and hold harmless the Landlord for all
personal injuries, property damage, or loss caused from the
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placing or fixing of any such sign or advertisements. Any such approved sign
or advertisement is agreed to be a trade or Tenant's fixture, and subject to
the provisions of Article 9.04 hereof.
4.05 DELIVERIES AND LOADING. The Tenant will permit deliveries to the
Premises, and loading and unloading is to be done only through the loading
areas and only in accordance with such rules as the Landlord may from time to
time reasonably prescribe.
4.06 WINDOWS. The Tenant will cause the windows of the Premises to be
suitably screened and will not permit storage inside of Premises to be
visible through such windows.
4.07 NOT TO AFFECT LANDLORD'S INSURANCES. The Tenant will not do, permit to
be done, or omit to do, on the Premises or elsewhere in the Building anything
which will directly or indirectly cause the rate of insurance upon the Lands
and improvements thereon or any part thereof or the Landlord's liability
insurance in respect thereof to be increased. If any insurance rate is
thereby increased, the Tenant will not store or permit to be stored upon the
Premises anything of a dangerous, inflammable or explosive nature or anything
which would have the effect of increasing the Landlord's insurance costs or
of leading to the cancellation of insurance. If any insurance policy is
canceled by an insurer by reason of the use and occupation of the Premises by
the Tenant or by an assignee, sub-tenant, or anyone permitted by the Tenant
to be on the Premises, then the Landlord may, at is option, terminate this
Lease upon fifteen (15) days' written notice, and, thereupon rent and any
other payments for which the Tenant is liable under this Lease will be
apportioned and paid in full to the date of expiration of such notice, and
the Tenant will immediately deliver up vacant possession of the Premises to
the Landlord and the Landlord may re-enter and take possession of same and,
at its option, and at the expense of the Tenant, may rectify the situation
causing such cancellation.
4.08 PREVENTING CANCELLATION. The Landlord, its Employees, or agents may at
any time enter upon the Premises to remove any article or remedy any
condition, which, in the opinion of the Landlord reasonably arrived at, would
be likely to lead to cancellation of any policy of insurance. Such entry by
the Landlord will not be deemed to be re-entry nor a trespass.
ARTICLE FIVE
ASSIGNING, SUB-LETTING, AND ENCUMBERING
5.01 ASSIGNING AND SUB-LETTING BY TENANT. That the Tenant shall not assign this
Lease, nor assign, sub-let, part with, or share possession or occupation of the
Premises or any part thereof without the prior written consent of the Landlord,
which consent shall not be unreasonably or arbitrarily withheld, provided that
neither ail assignment of the Lease, nor a sub-letting, parting with, or sharing
with possession or occupation of the Premises, nor the Landlord's consent
thereto, shall relieve the Tenant from the covenants and agreements herein
contained, the Landlord may as a condition of any such consent require the
assignee, sublessee, licensee, or occupant to covenant with the Landlord for the
due and faithful performance and observance of the terms of this Lease,
including this clause. Notwithstanding the foregoing, any request for the
Landlord's consent to an assignment or sub-letting or parting with or sharing
possession or occupation of the Premises shall be accompanied by such
information as to the proposed assignee, sub-tenant licensee, or occupant's
business and financial responsibility as the Landlord may reasonably require,
together with the terms of the proposed assignment, parting with, or sharing of
possession or occupation; and the Landlord shall have the right, exercisable on
its own behalf or on behalf of such party as the Landlord may designate, to take
the assignment or sub-lease or otherwise, as the case may be, from the Tenant
upon the same terms and conditions as are set forth in this Lease and in any
such case this Lease or such portion thereof as is affected by the assignment or
sub-lease or otherwise, may at the election of the Landlord be treated as
surrendered as of the effective date of such proposed assignment. The Landlord
shall have a period of thirty (30) days in which to exercise its aforesaid
rights and within which to communicate such exercise to the Tenant, and if not
so exercised, the Landlord shall not later than such 30th day, notify the Tenant
if it approves or disapproves the assignment, sub-lease, parting with, o sharing
the possession or occupation of the Premises. And in the case of approval, the
Tenant shall have a period of sixty (60) days thereafter
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in which to assign, sub-lease, part with, or share the possession or
occupation of the Premises to the party so named by the Tenant in accordance
with the terms and conditions so indicated to the Landlord in the aforesaid
notice. In the event that the Tenant does not so assign, sub-let, part with,
or share possession or occupation of the Premises within such sixty (60) day
period, the Landlord's consent to such assignment, sub-leasing, parting with,
or sharing the possession or occupation of the Premises shall be null and
void, and the Tenant shall not be permitted to assign, sub-let, part with, or
share the possession or occupation of the Premises without again conforming
to all the express provisions of the clause.
5.02 CHANGE IN CONTROL. If the Tenant is a private corporation, any sale or
other disposition of its shares of security resulting in a change of control
of beneficial ownership of such corporation shall be deemed to be an
assignment of this Lease and subject to the provisions hereof with respect to
assignment by the Tenant.
ARTICLE SIX
COMPLIANCE WITH LAWS, BUILDER'S LIENS
6.01 COMPLIANCE WITH LAWS. The Tenant, during the Term and its own expense,
will promptly comply and will cause its employees, agents, licensees,
invites, and other persons on or about the Premises to comply with the
requirements of every applicable law, rule, bylaw, regulation, order,
direction, ordinance and standard of every competent federal, provincial,
municipal, regional, and other statutory authority in force during the Term
and concerning or affecting the condition, maintenance, use, and occupation
of the Premises and all improvement, appurtenances, equipment, machinery, and
other facilities from time to time therein, thereon, or used in connection
therewith and the making of any repairs, replacements, and alterations to the
Premises and with every applicable regulation, order, and requirement of the
Insurance Bureau of Canada or any successor body having similar functions and
of any liability or fire insurance company by which the Landlord and Tenant
or either of them may be insured at any time during the Term. And, in doing,
the Tenant, subject to Article 7 hereof, will make any necessary alterations,
repairs, additions, or deletions in, on or to the Premises, improvements, or
appurtenances or any part or parts thereof, and any equipment, machinery, or
other facilities in, on, upon, used in connection with, or appurtenant to the
Premises or any part thereof.
6.02 BUILDER'S LIENS. The Tenant will not suffer or permit any lien under
the Builders' Lien Act or like statute to be filed against title to the
Premises or Lands by reason of labour, services, or materials supplied or
claimed to have been supplied to the Tenant or anyone holding any interest
through or under the Tenant or anyone holding any interest through or under
the Tenant during the Term. If any such lien is filed, the Tenant will
procure registration of its discharge forthwith after the lien has come to
the notice of the Tenant. If the Tenant desires to contest in good faith the
amount or validity of any lien and has so notified the Landlord, and if the
Tenant has deposited with the Landlord or with a Trustee, or paid into Court
to the credit of any lien action, the amount of the lien claimed plus an
amount for costs satisfactory to the Landlord, then the Tenant may defer
payment of such lien claim for a period of time sufficient to enable the
Tenant to contest the claim with due diligence, provided always that neither
the Premises nor the Tenant's leasehold interest therein shall thereby become
liable to forfeiture or sale. The Landlord may, but will not be obliged to,
discharge any lien filed any time if, in the Landlord's judgement, the
Premises or the Tenant's interest therein becomes liable to any forfeiture or
sale, or is otherwise in jeopardy, and any amount paid by the Landlord in so
doing, together with all reasonable costs and expenses of the Landlord, will
be reimbursed to the Landlord by the Tenant forthwith on demand. Nothing
herein contained will be deemed to authorize the Tenant, or imply consent or
agreement on the part of the Landlord, to subject the Landlord's estate and
interest in the Premises to any lien.
ARTICLE SEVEN
REPAIRS, MAINTENANCE, AND ALTERATIONS
7.01 REPAIR AND MAINTENANCE. The Tenant, throughout the Term at its own
expense, will repair, maintain, and keep the Premises and all improvements,
appurtenances, and equipment therein and thereon (including, without
limitation, all electrical, heating, ventilation, sprinkler, plumbing
fixtures and equipment, and windows) in good repair and condition, as is
fitting for a comparable quality warehouse and accessory office development
and whether such repairs
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are structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen, excepting from such standard of repair and maintenance damage by
fire and other risks against which the Landlord is insured, reasonable wear
and tear to the extent only that such reasonable wear and tear is not
inconsistent with maintenance in good order and condition of Premises
generally, and repairs for which the Landlord is responsible under this
Lease. "Repairs" shall include replacements and renewals, when necessary.
7.02 INSPECTION AND EMERGENCIES. The Landlord's representatives may enter
upon the Premises at all reasonable times and during any emergency to inspect
the state of repair and maintenance.
7.03 REPAIRS BY DESIGNATED TRADESPEOPLE. The Tenant, when necessary and
whether upon receipt of notice from the Landlord or not, will effect and pay
for such maintenance and repairs for which it is responsible and, in so
doing, will use subcontractors, contractors, and tradespeople approved by the
Landlord in writing, such approval not to be unreasonably withheld.
7.04 REPAIR ACCORDING TO NOTICE. Without restricting the generality of
Article 7.01 hereof, the Tenant, promptly upon notice by the Landlord, will
make and do all repairs and maintenance for which it is responsible. If the
Tenant fails to repair or maintain with what the Landlord considers to be a
reasonable time, then the Landlord may cause such repairs and maintenance to
be undertaken (and may cause its employees and agents to enter on the
Premises for such purpose). Should the Landlord deem it necessary to
undertake any repairs or maintenance, then the Tenant will pay to the
Landlord, as a fee for supervision for carrying out the Tenant's obligations,
an amount equal to 10% of the monies expended or of the cost of repairs of
maintenance carried out by the Landlord, which amount will be in addition to
the cost of such work or monies expended.
7.05 ALTERATIONS. Notwithstanding anything to the contrary in this Lease,
the Tenant will not make to, or erect in the Premises, any installations,
alterations, additions, or partitions without having received the prior
written approval of the Landlord to the plan and specifications and any
variation or amendment thereof, which approval is not a substitute for the
approval of any relevant statutory authority. The Landlord will be entitled
to recover from the Tenant the cost of having its architects or engineers
examine such plans and specifications.
7.06 CONSTRUCTION AND ALTERATION. The Tenant will construct the
installations, alterations, additions, and partitions only in accordance with
the approved plans and specifications, in a good and workmanlike manner and
7.07 PAYMENT FOR WORK. The Tenant will pay for all expenses incurred for
labour performed upon, and materials incorporated into, the Premises for
which it is responsible as same are due.
7.08 LANDLORD'S REPAIRS. Subject to the Landlord's right, in accordance with
this Lease, to elect not to rebuilt in the event of damage or destruction,
the Landlord, throughout the Term will repair, maintain, and keep the Common
Area in good repair and condition, reasonable wear and tear excepted.
ARTICLE EIGHT
COMMON AREA AND PARKING
8.01 PARKING. ALL PARKING IS UNASSIGNED. The parking area shall be used for
such purpose only at the sole risk of the Tenant, its servants and agents,
and provided further that the Landlord shall not be obliged to police usage
thereof. The Landlord may, but shall not be obliged to, remove or cause
removal of any motor vehicle of the Tenant, its invitees and licensees,
parked in areas other than the designated parking area and the Tenant shall
pay the costs of any such removal as Additional Rent hereunder.
8.02 STORAGE. The Tenant will not store anything of whatsoever nature of
kind on the Common Area of any parking area designated for the exclusive use
of the Tenant.
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8.03 NUISANCE. The Tenant will not do anything which may injure the Common
Area or be a nuisance to any other Tenants of Premises situated on the Lands.
8.04 USE OF COMMON AREA. Subject to this Lease and to such other reasonable
rules and regulations as the Landlord may make pertaining to the use of the
Common Area, the Tenant will have for itself and its licensees and invitees,
the non-exclusive right to use the Common Area (save and except only the roof
of the Building and parking areas designated by the Landlord for the use of
other tenants of the Building) in common with others entitled thereto for
their proper and intended purposes during normal business hours. The Tenant
acknowledges that the Common Area is subject to the exclusive control and
management of the Landlord and that the Landlord shall be entitled, from time
to time, to alter the Common Area and to make changes and additions thereto.
ARTICLE NINE
SURRENDER OF PREMISES AND REMOVAL OF FIXTURES
9.01 SURRENDER. Upon the expiration or earlier termination of this Lease and
the Term and any period of overholding, the Tenant will surrender to the
Landlord possession of the Premises and fixtures thereon (subject to the
Article 9), all of which will become the property of the Landlord without any
claim by a compensation to the Tenant, all in good order, condition, and
repair in accordance with the Tenant's obligation to repair and maintain, and
free and clear of all encumbrances and all claims of the Tenants or of any
person claiming by or through or under the Tenants, and all the rights of the
Tenant under this Lease will terminate (but the Tenant, notwithstanding such
termination, will remain and be liable to the Landlord for any loss, damage,
expenses, or costs suffered or incurred by the Landlord by reason of any
default by the Tenant).
9.02 DOCUMENT OF SURRENDER. If this Lease and the Term are terminated for
any reason, the Tenant will deliver to the Landlord forthwith a document
surrendering this Lease in form acceptable for registration in the
appropriate Land Titles Office.
9.03 CONDITIONS OF PREMISES. Without restricting the generality of article
9.01, the Tenant, immediately before the expiration or earlier termination of
the lease will wash the floors, windows, doors, walls and woodwork of the
Premises and leave the Premises in broom clean condition.
9.04 REMOVAL OF FIXTURES. Provided that the Tenant is not in default
hereunder, of the Term, remove the Tenant may, at the expiration of the term
from the Premises all trade or Tenant s fixtures. If the Tenant damages the
Premises during such removal, the Tenant will make good such damage. In no
event will the Tenant remove from the Premises any building, plumbing,
heating, air conditioning, electrical, or ventilating plan or equipment or
other building services; save and except that the Landlord will be entitled
upon the expiration or earlier termination of the Lease to require the Tenant
to, and Tenant shall, remove its installations, alterations, additions,
partitions, fixtures, and anything in the nature of improvements made or
installed by the Tenant or by the Landlord on behalf of the Tenant to or in
the Premises, or any of the, and to make good any damage caused to the
Premises by such removal.
ARTICLE TEN
LIABILITY AND INDEMNIFICATION
10.01 NON-LIABILITY OF LANDLORD. Except for the negligence of the Landlord, the
Tenant agrees that the Landlord will not be liable or responsible in any way for
any personal injury that may be sustained by the Tenant or any employee or
customer of the Tenant, or of any other person who may be upon the Premises or
on the Common Area or sidewalks, parking areas, highways, or loading areas
adjacent thereto, or for any loss of or damage or injury to, property belonging
to or in the possession of the Tenant or any employee or customer of the Tenant
or any other person, and without limiting the generality of the foregoing, the
Landlord will not be liable or responsible in any way for any injury, loss,
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or damage, to person or property caused by smoke, steam, water, ice, rain,
snow, or fumes which may leak, issue, or flow into, through, or from the
Premises or from the water sprinkler, drainage or smoke pipes, or plumbing
equipment therein or from any other place or quarter or cause by a
attributable to the condition or arrangement of any electrical or other
wiring or the air conditioning equipment, or for any matter or thing of
whatsoever nature of kind arising from the Tenant's use and occupation of the
Premises or otherwise.
10.02 INDEMNIFICATION. The Tenant will indemnify, and save harmless and
Landlord from the against any and all liabilities, damages, costs, expenses,
causes of action, actions, claims, suits, and judgments which the Landlord
may incur or suffer or be put to by reason of or in connection with or
arising from:
a) any breach, violation, or non-performance by the Tenant of any
covenant, condition, or agreement set forth in this Lease;
b) any damage to property of the Tenant, any sub-tenant, licensee, and
all persons claiming through or under the Tenant or any sub-tenant or licensee,
or any of the, or damage to any other property howsoever occasioned by the
condition, use, occupation, or maintenance of the premises;
(c) any injury to any person, including death, resulting any time
therefrom occurring in or about the Premises and Lands;
(d) any wrongful act or neglect of the Tenant, its invitees, and
licensees, in and about the Premises and Lands; and,
(e) any matters referred to in Article 11.01 hereof.
10.03 SURVIVAL OF INDEMNIFICATION. Such indemnification will survive any
termination of this Lease, anything in this Lease to the contrary
notwithstanding.
ARTICLE ELEVEN
INSURANCE
11.01 TENANT'S INSURANCE. The Tenant will purchase and keep in force
throughout the term:
(a) fire insurance with extended coverage endorsement (including
sprinkler leakage) covering all leasehold improvements made to or installed in
the Premises by or on behalf of the Tenant in an amount equal to the full
replacement value;
(b) fire insurance with extended coverage endorsement (including
sprinkler leakage) covering all the contents of the Premises, whether owned by
the Tenant or for which the Tenant is responsible, in an amount at least equal
to the actual cash value; and,
(c) comprehensive general liability insurance (including without
limitation, tenant's fire, legal liability, and contractual liability to cover
the responsibilities assumed under Article 10.02 hereof) with a cross liability
clause and otherwise in amounts and on terms acceptable to the Landlord.
11.02 POLICIES. The Tenant will effect all policies with insurers, and upon
terms and in amounts, satisfactory to the Landlord. The Tenant will furnish to
the Landlord copies of all policies, or insurance certificates in lieu thereof,
and will provide written notice of the continuation of such policies not less
than ten (10) days prior to their respective expiry dates. The Tenant will pay
the premium for each policy. If the Tenant fails to purchase or keep in force
such insurance, the Landlord may effect such insurance, the cost thereof being
recoverable from the Tenant forthwith on demand as Additional Rent hereunder.
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11.03 LANDLORD AS INSURED. The Tenant will cause each of its policies to
contain an undertaking by the insurer(s) to notify the Landlord at least
thirty (30) days prior to cancellation or any other change material to the
Landlord's interests. The liability policy will include the Landlord as an
additional named insured with a cross-liability clause.
11.04 SUBROGATION. The Landlord and Tenant will each cause any insurance
policy obtained by it pursuant to this Lease to contain a waiver of
subrogation clause in favour of the Landlord or Tenant, as the case may be.
11.05 LANDLORD TO INSURE. The Landlord throughout the Term will carry
insurance against fire and other perils as described in the definition of
Common Costs.
ARTICLE TWELVE
DAMAGE OR DESTRUCTION
12.01 DAMAGE TO PREMISES. If and whenever the Premises are destroyed or
damaged by fire or other casualty against which the Landlord is insured, so
as to be totally unfit for occupancy, rent will ▇▇▇▇▇ until the Premises are
repaired or rebuilt. If and whenever the Premises are damaged by fire or
other casualty against which the Landlord is insured and the damage is such
that the Premises can be partially used, then until such damage is repaired,
rent will ▇▇▇▇▇ by the same proportion as the area of the part of the
Premises rendered unfit for occupancy is of the whole of the Premises. The
Landlord, with reasonable diligence, will repair and restore the Premises
unless the Tenant is obliged to repair hereunder or unless this Lease is
terminated pursuant to Article 12.02 hereof.
12.02 TERMINATION. If the Premises are damaged or destroyed by any cause
whatsoever, and if, in the opinion of the Landlord reasonably arrived at, the
Premises cannot be rebuilt or made fit for the purposes of Tenant within
ninety (90) days of the damage or destruction, the Landlord at its option may
terminate this Lease by giving to the Tenant, with thirty (30) days after
such damage or destruction, notice of termination, and thereupon Basic Rent
and Additional Rent will be apportioned and paid to the date of the damage or
destruction and the Tenant will immediately deliver up possession of the
Premises to the Landlord.
12.03 DAMAGE TO BUILDING. If the Building in which the Premises are situated
is damaged or destroyed by any cause whatsoever (irrespective of whether the
Premises are damaged or destroyed) and if, in the opinion of the Landlord
reasonably arrived at, the Building cannot be rebuilt or made fit the
purposes of the affected Tenants within one hundred eighty (180) days of the
damage or destruction, the Landlord, at its option, may terminate this Lease
by giving to the Tenant, within thirty (30) days of such damage or
destruction, notice of termination requiring vacant possession of the
Premises sixty (60) days after delivery of such notice and thereupon Basic
Rent and Additional Rent will be apportioned and paid to the date on which
vacant possession is required and Tenant will deliver up possession of the
Premises to the Landlord in accordance with such notice.
ARTICLE THIRTEEN
QUIET ENJOYMENT
13.01 QUIET ENJOYMENT. If the Tenant duly and regularly pays the rent and
complies with its obligations under this Lease, the Tenant will be entitled
to (and shall and may ) peaceably possess and enjoy the Premises during the
Term without any interruption or disturbance from the Landlord or any person
or persons claiming by, through, or under the Landlord.
ARTICLE FOURTEEN
PERFORMANCE OF TENANT'S COVENANTS, DEFAULT, AND BANKRUPTCY
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14.01 LANDLORD MAY PERFORM COVENANTS. If the Tenant is in default of any of
its covenants and agreements herein, then the Landlord, without limiting any
other remedy which it may have, will have the right to remedy any such
default, and for such purpose may at any time enter upon the Premises. No
entry for such purpose will be deemed to cause a forfeiture or termination of
this Lease. In order to cure such default, the Landlord may do such without
things as are necessary to cure the default and such things as may be
incidental thereto (including limitation, the right to make repairs and to
expend monies). The Tenant will reimburse the Landlord forthwith upon demand
as Additional Rent hereunder the aggregate of all expenses incurred by the
Landlord in remedying any such default. The Landlord will be under no
obligation to remedy any default of the Tenant, and will not incur any
liability to the Tenant for any action or omission in the course of its
remedying or attempting to remedy any such default unless such act amounts to
intentional misconduct or gross negligence on the part of the Landlord.
14.02 RIGHTS OF TERMINATION. If and whenever:
(a) the Premises become vacant or remain unoccupied for five (5)
days or more or are not used for the purpose herein permitted;
(b) any rent or Additional Rent remains unpaid after any of the days on
which the same ought to have been paid and following ten (10) days' notice of
non-payment by the Landlord to the Tenant;
(c) there is a breach of any of the Tenant's obligations hereunder
(other than as set out in the other clauses of this Article) which is not cured
within fifteen (15) days after delivery of notice by the Landlord to the Tenant
specifying such breach, PROVIDED THAT if any default of the Tenant can only be
cured by the performance of work or the furnishing of materials, and if such
work cannot reasonably be completed or such materials reasonably obtained and
utilized within said fifteen (15) days, such default will not be deemed to
continue if the Tenant proceeds promptly with such work as may be necessary to
cure the default and continued diligently to complete such work;
(d) the Term or any goods and chattels on the Premises are at any time
seized or taken in execution or attachment;
(e) a receiver, guardian, trustee in bankruptcy, or any other similar
officer is appointed to take charge of all or any substantial part of the
Tenant's property by a court of competent jurisdiction;
(f) a petition is filed for the reorganization of the Tenant under any
provision of the Bankruptcy Act or any law of Canada or any Province thereof or
of the jurisdiction in which the Tenant is incorporated relating to bankruptcy
or insolvency then in force;
(g) the Tenant becomes insolvent;
(h) the Tenant files a petition for such reorganization or for
arrangements under any provision of the Bankruptcy Act or any law of Canada or
any Province thereof or of the jurisdiction in which the Tenant is incorporated
relating to bankruptcy or insolvency then in force and providing a plan for a
debtor to settle, satisfy, or to extend the time for the payment of debts;
(i) if any application, petition, certificate, or order is made or
granted for the winding up or dissolution of the Tenant, voluntarily or
otherwise;
(j) the Tenant assigns, sub-lets, or parts with possession of the
Premises without the Landlord's consent as required herein;
then in any of the said cases (and notwithstanding any prior waiver of breach of
covenant), the Landlord, at its option,
13
may (and without prejudice to any other right or remedy it may then have or
be entitled to) cancel this Lease, whereupon this Lease will terminate and
the Term will expire and be ended and the then current month's rent and the
next ensuring three months' Basic Rent and all Additional Rent for the then
current year (to be reckoned on the rate for the next preceding year in case
the rate for the then current year has not been fixed) shall thereupon become
immediately due and payable, and the Term, at the option of the Landlord,
will be forfeited and the Landlord may immediately distrain for all such rent
as well as any arrears then unpaid and the Landlord lawfully may immediately
or at any time thereafter and without notice or any form of legal process
re-enter upon the premises or any part thereof in the name of the whole and
repossess the same, and expel the Tenant and those claiming through or under
it, and remove its or their effects (forcibly if necessary) without being
deemed guilty of any manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or preceding breach of
covenant.
14.03 WAIVER WITH RESPECT TO RE-ENTRY. The Tenant waives any requirement
that notice of the Landlord's intention to re-enter be served or that the
Landlord commence legal proceedings in order to re-enter.
14.04 WAIVER OF BENEFIT OF LEGISLATION AND SEIZURE. The Tenant irrevocably
waives and renounces the benefit of any present or future law taking away or
diminishing the Landlord's privilege on the property of the Tenant and right
of distress and agrees with the Landlord, notwithstanding any such law, that
the Landlord may seize and sell all the Tenant's goods and property, whether
within the Premises or not, and apply the proceeds of such sale upon rent and
all other amounts outstanding hereunder and upon the cost of the seizure and
sale in the same manner as might have been done if such law had not been
passed. The Tenant further agrees that if it leaves the Premises leaving any
Basic Rent or Additional Rent or other amounts to be paid hereunder unpaid,
the Landlord, in addition to any remedy otherwise provided at law or in
equity, may seize and sell the goods and chattels of the Tenant at any place
to which the Tenant or any other person may have removed them, in the same
manner as if such goods and chattels have remained on the Premises.
14.05 REMEDIES OF LANDLORD ARE CUMULATIVE. The remedies of the Landlord in
this Lease are cumulative and are in addition to any remedies of the Landlord
at law or in equity. No remedy will be deemed to be exclusive and the
Landlord may from time to time have recourse to one or more of all the
available remedies specified herein or at law or in equity.
ARTICLE FIFTEEN
IMPOSSIBILITY OF PERFORMANCE
15.01 NON-PERFORMANCE BY LANDLORD. Whenever the Landlord is unable to
fulfill any obligation hereunder in respect of the provision of any service,
utility, work, or repairs by reason of being unable to obtain the materials,
goods, equipment, service utility, or labour required to enable it to fulfill
such obligation or by reason of any law or regulation or by reason of any
other cause beyond its reasonable control, the Landlord will be entitled to
extend the time for fulfillment of such obligation by a time equal to the
duration of the delay or restriction. The Tenant will not be entitled to any
compensation for any inconvenience, nuisance, or discomfort thereby
occasioned, or to cancel this Lease.
ARTICLE SIXTEEN
REGULATIONS
16.01 REGULATION. The Tenant and its employees, agents, contractors,
licensees, and invitees will be bound by all such reasonable regulations as
the Landlord may from time to time make of which written notice is given to
the Tenant. All such regulations will be deemed to be incorporated into and
form part of this Lease.
ARTICLE SEVENTEEN
14
OVERHOLDING
17.01 OVERHOLDING. If the Tenant remain possession of the Premises after the
expiration of this Lease and without the execution and delivery of a new
lease, the Landlord may re-enter and take possession of the Premises and
remove the Tenant therefrom and the Landlord may use such force as if may
deem necessary for the purchase without being liable in respect thereof or
for any loss or damage occasioned thereby, PROVIDED THAT while the Tenant
remains in possession after the expiration of this Lease, the tenancy, in the
absence of written agreement, will be from month to month only at a rent per
month equal to 1.25 times the Gross Rent and Additional Rent for management
payable in respect of the month immediately preceding expiration of the Lease
payable in advance on the first day of each month and shall be subject to all
terms of the lease, except that the tenancy will be from month to month only
and a tenancy from year to year will not be created by implication of law.
ARTICLE EIGHTEEN
INSPECTION, SALE, AND LEASE
18.01 SIGN. The Landlord may from time to time place upon the premises a
notice of reasonable dimensions and reasonably placed so as not to interfere
with the business of the Tenant stating that the Lands are for sale, and
during the last six months of the Term may similarly place a sign stating
that the Premises are to be let.
18.02 INSPECTION. The Landlord or its representatives may exhibit the
Premises at reasonable times to prospective tenants during the last six
months of the Term and may also exhibit the Premises at reasonable times for
the purposes of the Landlord's own financing and for prospective purchasers.
ARTICLE NINETEEN
MISCELLANEOUS
19.01 WAIVER. No waiver of any default will be binding unless acknowledged
in writing by the Landlord.
19.02 CONDONING. Any condoning, excusing, or overlooking by the Landlord of
any default will not operate as a waiver of the Landlord's rights hereunder
in respect of any subsequent default.
19.03 SUBORDINATION. This Lease at the request of the Landlord will be
subject, subordinate, and postponed to all mortgages (including any deed of
trust and mortgage securing bonds and all indentures supplemental thereto)
which may now or hereafter charge or affect the Premises and to all renewals,
modifications, consolidations, replacements, and extensions of such
mortgages, to the intent that such mortgages and all renewals, modifications,
consolidations, replacements, and extensions thereof will have priority over
this Lease notwithstanding the respective dates of execution or registration
thereof. The Tenant agrees to execute promptly and document in confirmation
of such subordination, postponement, and priority which the Landlord may
request and if the Tenant does not so execute such document within ten (10)
days after demand in writing, the Tenant does hereby make, constitute, and
irrevocably appoint the Landlord as his attorney-in-fact writing, and in his
name, place, and stead so to do.
19.04 ACKNOWLEDGMENT BY THE TENANT. The Tenant will execute promptly, when
requested by the Landlord, a certificate in favour of any prospective
mortgagee or purchaser of the Landlord certifying the status of this Lease,
any modifications or breaches of this Lease, and the status of the rent
account, all with the intent that any such acknowledgment or certificate may
be relied upon by any party to whom it is directed.
19.05 SEVERABILITY. If any provision of this Lease is illegal, invalid, or
unenforceable at law, it will be deemed to be severed form this Lease and the
remaining provisions will nevertheless continue to be in full force and
effect.
19.06 HEADINGS. All headings in this Lease are inserted for convenience of
reference only and will not affect the
15
construction and interpretation of this Lease.
19.07 REPRESENTATIONS AND ENTIRE AGREEMENT. The Tenant acknowledges and
agrees that the Landlord has made the arbitrator already named shall proceed
and his award fixing the basic annual rental for the renewal term shall be
final.
b) RENT SCHEDULE COMMENCE TERMINATION PER SQ. FT. ANNUALLY MONTHLY
------------- -------- ----------- ----------- --------
Sept 1/97 August 31/2001 10.30 $57,000.00 $4,750.00
b) GOODS AND SERVICES TAX (GST). This lessee shall pay Goods and Services Tax
relating to the Demised Premises.
c) Lessor not to lease premises in the building to N.A.
19.18 ENURING EFFECT. This Lease and everything herein contained will enure
to the benefit of and be binding upon the parties hereto and each of their
respective heirs, executors, administrators, successors, and permitted
assigns.
IN WITNESS WHEREOF of the parties hereto have executed this Lease as of the day
and year first above written.
(LANDLORD)
KENSINGTON VILLAGE HOLDINGS LTD.
Per: /s/ Cec ▇▇▇▇▇
------------------------------------
CEC ▇▇▇▇▇ - President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ - Secretary/Treasurer
(TENANT)
BUILDERS REALTY (CALGARY) LTD.
Per: /s/ Cec ▇▇▇▇▇
------------------------------------
CEC ▇▇▇▇▇ - President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ - Secretary/Treasurer
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