EXHIBIT 10.14
THIS LEASE INDENTURE
made the 4th day of September, 1999.
BETWEEN:
MARIO'S PINOCCHIO RISTORANTE LTD.
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Inc. No.197154, of
0000 Xxxx Xxxxxx Xxxxxxx
Xxxxxx, X.X., X0X 0X0
(hereinafter called the "LESSOR")
OF THE FIRST PART
SOFTNET INDUSTRIES INC.
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a Company duly incorporated in the State of Delaware in the
United States of America of, 101-B 0000 Xxxx Xxxxxx Xxxxxxx
Xxxxxx, X.X. X0X I B7
(hereinafter called the "LESSEE")
OF THE SECOND PART
ARTICLE I DEFINITIONS
1.01 The definition "Insurable Hazards" means fire and other perils
from which insurance is available and which, in the opinion of the Lessor,
should be protected by insurance.
1.02 "Lease Year" means a twelve (12) month period commencing with
the 1st day of August in one calendar year and ending on the 31st day of July in
the next year, or as agreed upon between the Lessor and the Lessee.
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ARTICLE II
2.01 Leased Premises
Witnesseth that in consideration of the rents, covenants
and agreements hereinafter reserved and contained on the part of the Lessee
to be observed and performed, the Lessor demises and leases to the Lessee,
and leases from the Lessor those certain premises being approximately 1,200
net square feet in suite 101-B In the basement of the building civically
known as 0000 Xxxx Xxxxxx Xxxxxxx, in the City of Surrey, in the Province of
British Columbia, more particularly known and described as that portion of
the second floor of the premises situate at:
P.I.D. 000-000-000
Parcel A District Xxx 000 Xxxxx 0
Xxx Xxxxxxxxxxx Xxxxxxxx Reference Plan 84734
as outlined in red on the plan attached as Schedule "A"
hereto, comprising 1,600 net square feet more or less.
(hereinafter referred to as the "Leased Premises")
2.02 NO EXPRESS OR IMPLIED WARRANTY AS TO FITNESS
It is understood and agreed between the parties that there
is no expressed or implied warranty by the Lessor that the premises are fit
for the purposes for which the Lessee proposes to use them. The Lessee states
that he has thoroughly inspected the premises and obtained such professional
advice as he deems necessary for the purposes of such inspection and declares
that they are fit for the purposes for which it is proposed that they be used.
2.03 COMMENCEMENT AND ENDING OF TERM
To have and to hold the Leased Premises for and during a
term of four (4) years. The term of this Lease and the Lessee's obligation to
pay rent hereunder shall commence on theist day of August 1999 and end on the
31st day of July, 2003.
2.04 IMPROVEMENT TO LEASED PREMISES
(a) If the Lessor spends more than SEVENTEEN THOUSAND FIVE
HUNDRED ($ 17,500.00) on the Leasehold improvements agreed to verbally, the
Lessee shall contribute up to a maximum of TWENTY FIVE HUNDRED ($2,500.00)
DOLLARS towards the cost over-run, upon submission, by the Lessor to the
Lessee, of proof of expenditure.
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(b) The Lessee agrees that the Lessee shall be responsible for
the cost and installation of any and all counter tops, work stations, phone
lines, computer lines and alarm
system.
2.05 RIGHT OF FIRST REFUSAL
(a) During the term of this Lease, the Right of First Refusal
to lease the area attached, on the same terms and conditions of
the Lessor grants to the Lessee, cross hatched on Schedule "A" this Lease.
(b) The Right of First Refusal must be exercised within Ten
(10) working days of notice being given by either Party to the other. If the
Lessee does not respond to the Lessor's notice, the Lessor shall be free to
lease the Premises described in this section to another party.
ARTICLE III - RENT
3.01 MINIMUM RENT
The Lessee agrees to pay to the Lessor in lawful money of
Canada by delivering postdated cheques as hereinafter set out without any prior
demand therefor and on a net basis without any deduction, defalcation or setoff
whatsoever, as fixed annual minimum rents:
(i) During the term hereof, the sum of SIXTY TWO THOUSAND FOUR HUNDRED
DOLLARS ($62,400.00), plus G.S.T. as applicable, payable in monthly
installments as hereinafter set out, in advance:
(ii) COMMENCING on the 1st day of AUGUST, 1999 and on the 1st day of each
and every month thereafter to and including the 1st day of JULY, 2003
the monthly payment shall be ONE THOUSAND THREE HUNDRED ($1,300.00)
DOLLARS, plus G.S.T.
At the beginning of each lease year the Lessee shall deliver
to the Lessor twelve (12) post-dated cheques for the amount of the equal monthly
installments for the lease year.
3.02 DEPOSITS
(i) A deposit representing the first and last month's rent shall be paid by
the Lessee upon the signing of this lease. The deposit therefore is
TWO THOUSAND SIX HUNDRED DOLLARS ($2,600.00).
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ARTICLE IV - INTENT
4.01 The Lessee acknowledges and agrees that it is intended that
this Lease shall be a Gross Lease and the Lessee shall be responsible for the
costs of Hydro and gas related to this unit.
ARTICLE V - TAXES
5.01 As long as the Lessee is not in default the monthly rent shall include real
property, municipal, and school property taxes and rates, whether general or
special, of any nature whatsoever.
5.02 TAXES PAYABLE BY LESSEE
The Lessee shall pay as additional rent and discharge within
twenty (20) days after billing, all taxes and assessments charged or assessed in
respect of any improvements (other than the original approved improvements),
equipment and machinery of the Lessee placed on the Leased Premises, and every
tax and license fee in respect of the Lessee's business.
5.03 EVIDENCE OF PAYMENT
The Lessee further covenants and agrees that upon request of
the Lessor the Lessee will promptly deliver to the Lessor for inspection,
receipt for payment of all taxes, rates, duties, assessments and other charges
in respect of all improvements, equipment and facilities of the Lessee on or in
the Leased Premises which were due and payable up to one (1) month prior to such
request, and in any event will furnish to the Lessor if requested by the Lessor
before the twenty-first (21) day of January in each year of payment of the
preceding years taxes, rates, duties, assessments and other charges.
ARTICLE VI
6.01 USE OF PREMISES
(a) The Lessee shall continuously use the Leased Premises solely for the
purpose of offices. The Lessee will not use or permit or suffer the
Leased Premises or any part thereof to be used for any other business
or purpose during the term hereby granted. If the Lessee or any
sub-lessee or licensee or concessionaire shall not continuously operate
offices as hereinbefore described in the Leased Premises the Lessor
shall have the right to terminate this Lease by giving thirty (30) days
written notice of termination of the Lease to the Lessee.
(b) The Lessee will not perform any acts or carry on any practices which
may injure the building or buildings and improvements or be a nuisance
or menace to the public or to occupiers of adjoining properties.
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ARTICLE VII - UTILITIES/LEASED PREMISES
7.01 UTILITY CHARGES
As long as the Lessee is not in default the monthly rent shall
include all charges for water. In no event shall the Lessor be liable for, nor
have any obligation with respect to, and interruption or failure in the supply
of any such utilities or services to the Leased Premises, whether supplied by
Lessor or others.
ARTICLE VIII - MAINTENANCE OF LEASED PREMISES
8.01 MAINTENANCE BY LESSEE
(a) The Lessee shall at all times during the term at its own cost and
expense repair, maintain, keep and make replacements to the whole of
the Leased Premises, including but without restricting the generality
of the foregoing, any improvement now or hereafter made to the Leased
Premises in good order and repair, as a careful owner would do, and the
Lessee 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 Lessor.
8.02 THE LESSOR'S APPROVAL
(a) In connection with any repairs, replacements, maintenance, alteration,
decoration or improvements set out above, or elsewhere referred to in
this Lease, the Lessee shall before commencing same, obtain Lessor's
written approval and shall, if required by the Lessor to do so, submit
plans and specifications therefor. Any repairs, replacements,
maintenance, alterations, decorations or improvements so done by the
Lessee shall be carried out in a good and workmanlike manner.
(b) If the Lessee refuses or neglects to repair properly as required
hereunder and to the reasonable satisfaction of the Lessor the Lessor
may make such repairs without liability to the Lessee (excepting the
Lessor's gross negligence only) for any loss or damage that may accrue
to the Lessee's merchandise, fixtures, or other property or to the
Lessee's business by reason thereof, and upon completion thereof, the
Lessee shall forthwith pay the Lessor's actual costs and shall further
pay to the Lessor, as a management fee, fifteen percent (15%) of the
said costs.
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ARTICLE IX - INSURANCE AND INDEMNITY
9.01 INSURANCE
(a) The Lessee will during the entire term hereof take out and keep in full
force and effect:
(i) Lessee legal liability insurance. If such coverage is not
taken out the Lessee will save harmless the Lessor from any
and all liability resulting from any suit or loss suffered by
the Lessor.
(ii) Property damage and public liability insurance with respect to
the Leased Premises including the plate glass windows, and
business conducted by the Lessee and any other persons in the
Leased Premises in which the limit of public liability shall
not be less than $100,000.00 per person and $2,000,000.00 per
occurrence and in which property damage liability shall not be
less than $2,000,000.00.
(b) All policies shall be at the Lessee's sole cost and expense and shall
name the Lessor and any persons, firms or corporations designated by
the Lessor as additional named insured as their interest may appear and
shall contain a clause that the insurer will not cancel or change or
refuse to renew the insurance without first giving the Lessor not less
than fifteen (15) days prior written notice. The insurance shall be
with insurers acceptable to the Lessor and with policies in form
reasonably satisfactory from time to time to the Lessor and a copy of
all polices or certificates of insurance shall be delivered to the
Lessor forthwith.
(c) The Lessee agrees that, if the Lessee fails to take out or keep in
force any such insurance, the Lessor will have the right but not
obligation to do so and to pay the premium therefor and in such event
the Lessee shall repay to the Lessor the amount so paid as premium
which repayment shall be deemed to be additional minimum rent and shall
be due on the first day of the next month following said payment by the
Lessor.
9.02 INCREASE IN INSURANCE PREMIUMS
The Lessee agrees that it will not keep, use, sell or offer
for sale in or upon the Leased Premises an article which may be prohibited by
the standard form of fire insurance policy in force from time to time
insuring the Leased Premises. In the event the Lessee's occupancy of, conduct
of business in, or sale of merchandise from, or on the Leased Premises, or in
the event any activity carried on or permitted to be carried on by the Lessee
whether or not the Lessor has consented to same, causes any increase in
premiums for insurance carried from pursuant to Section 6.01(a), the Lessee
shall pay any such increase in premium as additional rent within ten (10)
days after bills for such additional premiums shall be rendered by the
Lessor. In determining whether increased premiums are a result of the
Lessee's use or occupancy of the Leased Premises, or the sale of any article
therein or therefrom, a schedule
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issued by the organization making the insurance rate on the Leased Premises
showing the various components of such rates shall be conclusive evidence of the
several items and charges which make up such rates.
9.03 CANCELLATION OF FIRE INSURANCE
If any insurance policy upon the Leased Premises, or any
part thereof, shall be cancelled or shall be threatened by the insurer to be
cancelled, or the coverage thereunder reduced in any way by the insurer by
reason of the use and occupation of the Leased Premises or any part thereof by
the Lessee or by any assignee or sub-lessee of the Lessee or by anyone permitted
by the Lessee to be upon the Leased Premises, and if the Lessee fails to remedy
the condition giving rise to cancellation, or reduction of coverage within
forty-eight (48) hours after notice thereof by the Lessor, the Lessor may remedy
the condition giving rise to such cancellation or reduction, threatened
cancellation or reduction, and the Lessee shall forthwith pay the cost thereof
to the Lessor which cost may be collected by the Lessor as additional rent.
9.04 INDEMNIFICATION OF THE LESSOR
The Lessee will indemnify the Lessor and save it harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Leased Premises or any part
thereof, which is occasioned wholly or in part by any act or omission of the
Lessee, its agents, contractors, employees, servants, licensees or
-concessionaires or by anyone permitted to be on the premises by the Lessee.
ARTICLE X - ASSIGNMENT AND SUBLETTING
10.01 CONSENT REQUIRED
The Lessee will not assign this Lease in whole or in part,
nor sublet all or any part of the Leased Premises nor grant a license to all or
any part of the Leased Premises not grant a concession wherein a person not a
party to this agreement is entitled to occupy the Leased Premises nor shall
suffer or permit the occupation in any way of all or part thereof by others not
a party to this agreement, without the prior written consent of the Lessor in
each instance. The consent by the Lessor to any assignment or subletting shall
not constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. Notwithstanding any assignment or sublease, the Lessee
or its guarantors if any, shall remain fully liable for the performance of all
the terms1 conditions and covenants of this Lease and shall not be released from
performing any of the terms, covenants and conditions of this Lease. It is
understood and agreed that any written consents shall contain:
(a) An increase of the minimum rent.
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(b) A designation of the specified use of the premises in like manner
as paragraph 8.01.
(c) A covenant that the prosed Assignee, or by the said Assignee, or by
the Lessor, shall be entitled to commence action against the proposed
Assignee, or Sub-Lessee, or its Guarantors, directly for the
performance or non-performance of any terms, covenants and conditions
of this Lease.
10.02 Where the Lessee is a corporation, any agreement with
respect to the shares of the Lessee corporation wherein there is a change of
control of the Lessee corporation shall be deemed to be an assignment of the
Lease and shall require the consent set out in the paragraphs next preceding.
10.03 Any direct or indirect increase in rent by reasons of an
assignment license sub-lease or change in control of the Lessee Corporation,
including any lump sum payment received by the Lessee by anyone on behalf of
the Lessee, shall accrue to the Lessor and shall be paid in the case of a
lump sum payment forthwith to the Lessor or if by periodic payment in like
manner as set out in paragraph 3.01.
10.04 For the purposes only for providing greater particularity
it is specifically agreed that any breach of Article 12 shall entitle the
Lessor to the remedies set out in Article 16 and without restricting the
generality of the foregoing, shall entitle the Lessor to the remedy of
re-entry and, or termination of this Lease. All costs incurred by the Lessor
in investigating the proposed assignee or sub-lessee, processing an
application for assignment or sub-letting and in issuing or withholding
consent to assignment or sub-letting, including Lessor's reasonable
processing fee shall be borne by the Lessee and be payable upon presentation
of the Lessor's invoice therefor.
ARTICLE XI - WASTE. GOVERNMENT REGULATION
11.01 WASTE OR NUISANCE
The Lessee shall not commit or suffer to be committed any
waste upon the Leased Premises.
11.02 GOVERNMENTAL REGULATIONS
The Lessee shall, at the Lessee's sole cost and expense,
comply with all of the requirements of all municipal, provincial, federal and
other applicable governmental authorities, now in force, or which may hereafter
be in force, pertaining to the said premises, and shall faithfully observe in
the use of the premises all municipal by-laws and provincial and federal
statutes and regulations now in force or which hereafter be in force.
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11.03 OBSERVANCE OF LAW
The Lessee covenants to comply with all provisions of law
including, without limiting the generality of the foregoing, federal and
provincial legislative enactments, building by-laws and other governmental or
municipal regulations which relate to the partitioning, equipment, operation
and use of Leased Premises, or to the making of any repairs, replacements,
alterations, additions, changes, substitutions or improvements of or to the
Leased Premises, and to comply with all police, fire and sanitary regulations
imposed by any governmental, provincial or municipal authorities or made by
fire insurance under writers and to observe and obey governmental and
municipal regulations and other requirements governing the conduct of any
business conducted in the Leased Premises.
ARTICLE XII - LESSOR'S COVENANTS
12.01 THE LESSOR'S COVENANTS
Upon payment by the Lessee of the rents including and
without restricting the generality of the foregoing the minimum rent, the
additional rent, and any other charges hereunder set out in this Lease and upon
observance and performance of all covenants, terms and conditions on the
Lessee's part to be observed and performed, the Lessor hereby covenants with the
Lessee:
(a) For quiet enjoyment for the term hereby demised without hindrance or
interruption by the Lessor, or any other person or persons lawfully
claiming by, through or under the Lessor.
(b) Subject to Article V, to cause to be paid from the sums paid by the
Lessee all the realty taxes, all business taxes, if any, from time to
time payable by the Lessor, levied or assessed against the Leased
Premises.
12.02 LOSS AND DAMAGE
The Lessor shall not be liable for any death or injury,
or damage to property of the Lessee or others located on the Leased Premises,
nor for the loss of or damage to any property of the Lessee or of others by
theft or otherwise except for the negligence of the Lessor and its agents,
contractors, and employees and for damage or injury resulting from the
failure of the Lessor to repair according to its obligations under the lease
herein. Except for the gross negligence only of the Lessor, all property of
the Lessee kept or stored on the Leased Premises shall be so kept or stored
at the risk of the Lessee only and the Lessee shall hold the Lessor harmless
from any claims arising out of any of the matters mentioned in this and
Section 13.02.
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ARTICLE XIII - SIGNS. FIXTURES AND ALTERATIONS
13.01 INSTALLATION BY LESSEE
All fixtures installed by the Lessee shall be new or like
new. Except for window advertising, the Lessee shall not make or cause to be
made any alterations, additions or improvements or install or cause to be
installed any trade fixtures, exterior signs, floor coverings, interior or
exterior lighting, or mechanical or electrical systems and fixtures, or plumbing
fixtures, shades or awnings, or make any changes to the store front or hang from
or affix anything to the ceiling without first obtaining the Lessor's written
approval and consent. The Lessee shall present to the Lessor plans and
specifications for such work at the time approval is sought and work shall be
carried out in a good and workmanlike manner. All costs of any improvements or
installations required by any governmental body, either during the term of this
Lease or as a condition precedent of occupancy of the premises, shall be borne
by the Lessee. A door sign approved by the Lessor is allowed.
The Lessor shall provide the Lessee the right to advertise
on a free standing sign approved by the local municipality.
13.02 REMOVAL AND RESTORATION BY THE LESSEE
All alterations, decorations, additions and improvements
made by the Lessee, or made by the Lessor on the Lessee's behalf by agreement or
under this Lease shall remain the property of the Lessee for the term of the
Lease, or any extension or renewal thereof. The Lessee shall unless the Lessor
waives this in writing, remove such alterations, decorations, additions and
improvements together with its trade fixtures at the expiration of this Lease
and shall restore any walls, floor coverings, heating equipment or electrical
fixtures removed by the Lessee to its original condition, or any renewal term
thereof, provided that any such removal by the Lessee shall be done at the sole
expense of the Lessee and the Lessee shall repair any damage to the structure of
the Leased Premises or to the heating, ventilation, air-conditioning, plumbing,
electrical or other mechanical systems in the Leased Premises caused thereby and
shall leave the premises in good repair and clean condition. Should the Lessee
not leave the premises in good and clean condition, the Lessor may repair and
clean the premises and the Lessee shall forthwith pay the costs of the same upon
demand by the Lessor.
13.03 NOT TO OVERLOAD FLOORS
The Lessee covenants and agrees that it will not bring upon
the Leased Premises or any part thereof, any machinery, equipment, article or
thing that by reason of its weight, size or use might in the opinion of the
Lessor damage the Leased Premises and will not at any time overload the floors
of the Leased Premises, and that if any damage is caused to the Leased Premises
by any machinery, equipment, article or thing or by overloading or by any act,
neglect, or misuse on the part of the Lessee or its servants, agents or
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employees or any person having business with the Lessee, the Lessee will
forthwith repair the same or pay to the Lessor the cost of making good the
same.
13.04 THE LESSEE SHALL DISCHARGE ALL LIENS
The Lessee shall promptly pay all its contractors and
material men and shall do any and all things necessary so as to minimize the
possibility of a lien attaching to the Leased Premises and should any such
lien be made or filed, the Lessee shall discharge the same within ten (10)
days thereafter at the Lessee's expense and shall indemnify and save harmless
the Lessors therefrom.
ARTICLE XIV - DAMAGE AND DESTRUCTION
14.01 TOTAL OR PARTIAL DESTRUCTION
(a) In the event the Leased Premises are wholly or partially damaged or
destroyed by an insurable hazard, and subject to the consent of the
Lessor's mortgagee, if any, the Lessor shall with reasonable diligence
repair or replace the Leased Premises at a cost not less than
approximately the amount of insurance payable and paid by reason of
such damage or destruction, and shall provide for the Lessee, as soon
as reasonably practicable and subject to Section 14.01 (b) premises of
a type, quality and character equal to or better than the premises were
prior to the damage and destruction and suitable for the purposes of
the Lessee.
(b) The Lessor shall not be obligated to expend for such repair or
replacement an amount in excess of the insurance proceeds recovered or
recoverable as a result of such damage. The Lessee shall cause all
proceeds of insurance to be paid to the Lessor on account of the cost
of repair or replacement In no event shall the Lessor be required to
repair or replace the Lessee's stock in trade, fixtures, furnishings,
floor coverings and equipment.
(c) If the casualty, repairing or rebuilding shall render the Leased
Premises untenantable, in whole or in part, a proportionate abatement
of the rent shall be allowed from the date when the damage occurred
until the date the Lessor completes such work, said proportion to be
computed on the basis of the relation which the gross square foot area
of the space rendered untenantable bears to the floor area of the
Leased Premises.
(d) If any damage or destruction cannot, with reasonable diligence, be
repaired and restored within one hundred and eighty (180) days of the
date of happening of such damage or destruction, the Lessor or the
Lessee may, at their respective options, terminate this Lease and the
tenancy hereby created by giving to the Lessee or the Lessor, as the
case may be, within sixty (60) days following the date of such
occurrence, written notice of the election so to do, and in the event
of such
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termination, the Lease shall terminate and the rent shall be adjusted
as of the date of the occurrence of such damage.
14.02 NOTICE BY LESSEE
The Lessee shall give immediate notice to the Lessor in case
of fire or accidents in the Leased Premises or in the building of which the
premises are a part, of defects therein or in any fixtures or equipment,
notwithstanding the fact that the Lessor may have no obligations with respect
thereto.
14.03 NOTICE OF REPAIR AND RECONSTRUCTION
From and after the date upon which the Lessee is notified in
writing by the Lessor that the Lessor's work of reconstruction and/or repair is
completed, the Lessee shall forthwith complete all work required to fully
restore the Leased Premises for business fully fixtured, stocked and staffed.
The certificate of the Lessor's architect shall bind the parties hereto as to
the state of tenantability of the Leased Premises and as to the date upon which
the Lessor's work of reconstruction and/or repair is completed.
ARTICLE XV - EXPROPRIATION
15.01 EXPROPRIATION OF LEASED PREMISES
In the event that at any time during the term of this Lease:
(a) The whole of the Leased Premises; or
(b) A part of the Leased Premises such that the remainder is unusable for
the purpose for which this Lease has been made; or
shall be acquired or expropriated by any lawful expropriating authority, then,
in such event, at the option of the Lessor or the Lessee this lease shall cease
and terminate as of the date of title vesting in such authority. Irrespective of
to whom the compensation for expropriation would otherwise be paid, it is agreed
that the net amount received from such expropriation shall be apportioned and
paid as follows:
(a) All compensation for improvements placed on the Leased Premises by the
Lessee shall belong to and be paid to the Lessee.
(b) All other compensation for the value of the property taken shall belong
to and be paid to the Lessor and/or its mortgage creditors.
(c) Each party shall be entitled to claim from the expropriating authority
and to be paid and retained in full the amount which that party may
receive as damages suffered from the cancellation of the present Lease
for the balance of the term hereof or any renewal thereof, as well as
any other damage to which that party alone is entitled in consequence
of the expropriation.
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15.02 PARTIAL EXPROPRIATION OF LEASED PREMISES
In the event of any other partial expropriation this Lease
shall remain in full force and effect and the rental payable shall be reduced in
proportion that any part of the Leased Premises expropriated bears the total
area of the Leased Premises prior to the expropriation.
ARTICLE XVI - DEFAULT AND TERMINATION
16.01 RIGHT TO RE-ENTER
The tenancy granted by this Lease is expressly subject to
the condition that if the Lessee fails to pay the rent or other charges required
to be paid by the Lessee hereunder, or if the Lessee shall fail to observe,
perform and keep any one or more of the covenants, provisions or stipulations to
be observed, performed or kept by the Lessee hereunder, and if such failure
shall continue for a period of twenty (20) days after notice to the Lessee of
such failure, the Lessor may re-enter the Leased Premises, or any part thereof
in the name of the whole, the same to have again, re-possess and enjoy as of its
former estate, anything herein contained to the contrary notwithstanding. Upon
such re-entry this lease shall thenceforth be terminated and of no further force
or effect, and no payment or acceptance of rent subsequent to the events of
default hereinbefore in this clause cited shall give the Lessee the right to
continued occupancy of the Leased Premises, or in any way affect the rights of
the Lessor therein, or have the effect of re-instating this Lease.
16.02 The Lessee covenants with the lessor, and it is a condition of
this Lease that:
(a) If the term hereby granted or any of the goods or chattels on the
Leased Premises are at any time repossessed, seized, or taken in
execution or attachment by any creditor of the Lessee, whether under
xxxx of sale, chattel mortgage, debenture, conditional sales contract,
lien note, lease of personal property, or consignment contract and such
seizure, execution or attachment has not been withdrawn, set aside,
discharged or abandoned within fifteen (15) days after the happening
thereof. OR
(b) If a writ of execution or replevin order issued against the goods or
chattels or the Lessee and such writ has not been set aside or vacated
within fifteen (15) days after the Lessee receives notice thereof. OR
(c) If the Lessor makes any assignment for the benefit of creditors, or
becoming bankrupt or insolvent takes the benefit of, or becomes
subject to, any statutes that may be in order relating to bankrupt or
insolvent debtors. OR
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(d) If any application or petition or certificate or order is made or
granted for the winding up or dissolution of the Lessee, voluntarily
or otherwise and if such application or petition or certificate has
not been set aside within fifteen (15) days after the Lessee receives
notice thereof. OR
(e) lf the Leased Premises at any time during the Lease term become vacant
in consequence of their abandonment by the Lessee, or the removal of
the Lessee by legal press for non-payment of rent1 breach of covenant
or any other cause. OR
(f) If the Lessee unreasonably refuses within fifteen (15) days after
notice in writing from the Lessor to rectify or correct any
non-observance or non-performance of all and every of the covenants,
provisions, stipulations and conditions contained in this Lease except
in the event such rectification requires in excess of such fifteen (15)
days' notice, in which event the time period shall be extended. OR
(g) If any insurance policy insuring the Leased Premises or the Lessor is
cancelled by reason of the use an occupation of the Leased Premises or
any part thereof, provided that the Lessor shall not be able to obtain
other insurance to cover same at a reasonable cost. OR
(h) If the Lessee fails to move into or take possession of the Leased
Premises and open for business as required by this Lease. OR
(i) If at any time during the term hereof, the Lessee or any other person
removes or attempts to remove, without the consent in writing of the
Lessor, any goods or chattels from the Leased Premises, save and except
in the ordinary course of the Lessee's business, or in the course of
replacement or renovations. OR
(1) In case the Leased Premises are used by any other person or for any
other purpose than as herein provided without the written consent of
the Lessor.
Then and in every such event the Lessor shall be entitled
upon ten (10) days notice in writing to re-enter the Leased Premises, and upon
such reentry, this Lease shall thenceforth be terminated, and be of no further
force and effect, and no payment or acceptance of rent subsequent to the event
of default hereinbefore in this clause cited shall give the Lessee the right to
continued occupancy of the Leased Premises, or in any way affect the rights of
the Lessor herein, or have the effect or reinstating this Lease.
Besides any other rights or remedies it may have, the Lessor
may remove all persons and property from the Leased Premises and such property
may be removed and stored for the account of the Lessee or sold for the account
of the Lessee all without service of notice or resort to legal process and
without being deemed guilty of trespass or becoming liable for any loss or
damage which may be occasioned thereby.
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16.03 DAMAGES
Should the Lessor at any time terminate this Lease for any
breach; in addition to any other remedies it may have, it may recover from the
Lessee all damages it may incur by reason of such breach, including the cost of
recovering the Leased Premises, solicitor's fees on a solicitor/client scale,
and including the worth at the time of such termination of the excess, if any,
of the amount of rent and charges equivalent to rent reserved in this Lease for
the remainder of the stated term of the then reasonable rental value of the
Leased Premises for the remainder of the stated term, all of which amount shall
be immediately due and payable from the Lessee to the Lessor. In any of the
events referred to in Article 16.01 hereof, in addition to any and all other
rights including the rights referred to in this Article and Article 16.01
hereof, the full amount of the current month's minimum rent and the next three
(3) months' minimum rent shall immediately become due and payable, and the
Lessor may immediately distrain for the said, together with any arrears then
unpaid.
16.04 Notwithstanding the provisions set out in this Article XVI
and in addition to the remedy therein set out, if the Lessee fails to pay the
rent, or other charges, or fails to observe, perform and keep any one or more
of the covenants, provisions, or stipulations to be observed, performed, or
kept by the Lessee, the Lessor may elect by notice in writing to the Lessee
at the address set out in this Lease, one of the following courses of action.
(a) That the Lessor elects to do nothing to alter the relationship of the
Lessee and the Lessor and insist on performance of the terms of the
Lease and xxx for rent and damages on the basis that the Lease
continues in force. OR
(b) That the Lessor elects to terminate the Lease retaining the right to
xxx for rent accrued or for damages to the date of termination. OR
(c) That the Lessor advise the Lessee that the Lessor proposes to relet
the premises on the Lessee's account and the Lessor will enter into
possession of the premises on that basis. OR
(d) That the Lessor elects to terminate the Lease but with notice to the
Lessee or whomsoever is liable for the default that damages will be
claimed on the basis of a present recovery of damages for losing the
benefit of the Lease for the unexpired term and will be claiming
damages based on the present value of the unpaid future rent for the
unexpired period of the Lease.
16.05 That in addition to the remedies in Article XVI, and the remedies set out
in the paragraphs next proceeding, the Lessor may in his sole discretion elect
to take proceedings for possession of the property, pursuant to Section 18 of
the COMMERCIAL TENANCY ACT, R.S.B.C. 1979 and amendments thereto, or to any
subsequent Act of like nature. Notice as hereinbefore set out of default
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performance of the covenants as set out in paragraph 16.011 or five (5) days
notice of non-payment of rent1 shall be deemed to be sufficient notice for all
purposes of proceedings under the said Section 18 and the following Sections of
the COMMERCIAL TENANCY ACT, R.S.B.C. 1979, and amendments thereto.
ARTICLE XVII - RIGHT OF ENTRY
17.01 RIGHT OF ENTRY
The Lessor or its agents shall have the right to enter the
Leased Premises during normal business hours except where otherwise agreed to
examine the same and to show them to prospective purchasers, lessees or
mortgagees, and to enter the Leased Premises at times mutually agreed between
the Lessor and the Lessee to make such repairs, as the Lessor may deem necessary
for desirable, and the Lessor shall be allowed to take all material into and
upon said premises that may be required therefor without the same constituting
an eviction of the Lessee in whole or in part and the rent reserved shall in no
way xxxxx by reason of loss or interruption of business of the Lessee or
otherwise while said repairs are being made. During the three (3) months prior
to the expiration of the term of this Lease, the Lessor may place upon the
premises the usual notice "To Let", or "For Sale", which notices the Lessee
shall permit to remain thereon without molestation. The Lessor may at any time
within three (3) months before the end of the term, under twenty four hours
notice, enter the Leased Premises and bring others at all reasonable hours for
the purposes of offering the Leased Premises for rent. If the Lessee shall not
be personally present to open and permit an entry into the said premises, at any
time, when for any reason an emergency pr apprehended emergency shall exist or
be contemplated, the Lessor or its agent may enter the same, without rendering
the Lessor or such agent liable therefor, and without in any manner affecting
the obligations and covenants of this Lease. Nothing herein contained however,
shall be deemed or construed to impose on the Lessor any obligation,
responsibility or liability whatsoever, for the care, maintenance or repair of
the Leased Premises or any part thereof except as otherwise herein specifically
provided.
ARTICLE XVIII - ASSIGNMENT BY LESSOR
18.01 In the event of the sale or lease by the Lessor of the Leased Premises or
the assignment by the Lessor of this Lease or any interest of the Lessor
hereunder, and to the extent that such purchaser or assignee by agreement with
the Lessee has assumed the covenants and obligations of the Lessor hereunder,
the Lessor shall without further written agreement be freed and relieved of
liability upon such covenants and obligations.
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ARTICLE XIX
STATUS STATEMENT. ATTORNMENT. SUBORDINATION
19.01 STATUS STATEMENT
within ten (10) days after request therefore by the Lessor,
or in the event that upon any sale, assignment, lease or mortgage of the Leased
Premises and/or the land thereunder by the Lessor, the Lessee agrees to deliver
in a form supplied by the Lessor a certificate to any proposed mortgagee or
purchaser, or to the Lessor certifying (if such be the case) that this Lease is
in full force and effect and that there are no defences or setoffs thereto, or
stating those claimed by the Lessee.
19.02 ATTORNMENT
So long as the Lessee's occupation and possession of the
Leased Premises is not disturbed, the Lessee shall, in the event any proceedings
are brought for the foreclosure of, or in the event of exercise of the power or
sale under any mortgage made by the Lessor covering the Leased Premises, attorn
to the mortgagee or the purchaser upon any such foreclosure or sale and
recognize such mortgage or purchaser as Lessor under this Lease.
19.03 SUBORDINATION
Upon the request of the Lessor the Lessee will subordinate its
rights hereunder to any mortgage or mortgages, or the lien resulting from any
other method of financing or refinancing, nor or hereafter in force against the
land and/or buildings of which the Leased Premises are a part or against any
buildings hereafter placed upon the land of which the Leased Premises are a
part, and to all advances made or hereafter to be made upon the security
thereof.
ARTICLE XX - MISCELLANEOUS
20.01 NO TACIT RENEWAL
in the event the Lessee remains in possession of the Leased
Premises after the end of the term hereof without the execution and delivery of
a new lease, and the Lessor shall accept rent, there shall be no tacit renewal
of this Lease and the term hereby granted, and the Lessee shall be deemed to be
occupying the Leased Premises as a Lessee from month to month at a monthly
rental payable in advance on the fifteenth (1st) day of each month equal to the
sum of:
(a) One Hundred and Fifty Percent (150%) of the fixed minimum monthly rent
payable during the last month of the term of the Lease. AND
(b) A proportionate part of the additional rent.
18
and otherwise upon the same terms and conditions as are set forth in this Lease,
so far as applicable to a monthly tenancy.
20.02 SUCCESSORS
All rights and liabilities herein given to, or imposed upon,
the respective parties hereto shall extend to and bind the several respective
heirs3 executors, administrators, successors and assigns of the said parties;
and if there be more than one tenant, they shall all be bound jointly and
severally by the terms, covenants, and agreements herein. No rights, however,
shall enure to the benefit of any assignee of the Lessee unless the assignment
to such assignee has been approved by the Lessor in writing as provided in
Section 12.01 hereof.
20.03 ENTIRE AGREEMENT
This Lease and schedules attached hereto and forming a part
hereof, set forth all of the covenants, promises, conditions, agreements, or
understandings, either oral, or written, between them other than herein set
forth. Except as herein otherwise provided, no subsequent alteration, amendment,
change or addition to the Lease shall be binding upon the Lessor or the Lessee
unless reduced to writing and signed by them.
20.04 FORCE MAJEURE
Save as otherwise herein provided in the event that either
party hereto shall be delayed or hindered in or prevented from the performance
of any act required hereunder by reason of strikes, lock-outs, labour troubles,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reason of a like nature not
the fault of the party delayed in performing work or doing acts required under
the terms of this Lease, then performance of such act shall be excused for a
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
20.05 NOTICES
Any notice, demand, request or other instrument which may be
or is required to be given under this Lease, shall be delivered in person or
sent by registered mail postage prepaid and shall be addressed to all of the
following addresses:
(a) to the Lessor at:
Mario's Pinocchio Ristorante Ltd.
0000 Xxxx Xxxxxx Xxxxxxx
Xxxxxx, X.X.
X0X 0X0
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(b) to the Lessee at the address indicated on page 1 of this Lease.
or at such other address as the Lessor or the Lessee may designate by written
notice. Any such notice, demand, request or consent shall be conclusively deemed
to have been given or made on the day upon which such notice, demand, request or
consent is delivered, or, if mailed, then on the third business date following
the date of the mailing as the case may be, and either party may at any time
give notice in writing to the other of an change of address of the party giving
such notice and from and after the giving of such notice, the address therein
specified shall be deemed to be the address of such party for the giving of
notices hereunder.
20.06 SECTION AND ARTICLE NUMBERS
The section and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of such paragraphs and articles of this Lease
nor in any way after this Lease.
20.07 GOVERNING LAW
This Lease shall be construed and governed by the laws of the
Province of British Columbia.
20.08 Time shall be strictly of the essence herein.
20.09 The Lessor and the Lessee are agreed that nothing contained
in this Lease nor any acts of the Lessor or the Lessee shall be deemed to
create any relationship between the Lessor and the Lessee other than the
relationship of Lessor and Lessee.
20.10 No condoning, excusing or overlooking by the Lessor or the
Lessee of any default, breach or non-observance by the Lessee or the Lessor
at any time or times in respect of any covenant, proviso or condition herein
contained shall operate as a waiver of the Lessor's or the Lessee's right
hereunder in respect of any continuing or subsequent default, breach or
non-observance, or so as to defeat or affect in any way the rights of the
Lessor or the Lessee herein in respect of any such continuing or subsequent
default or breach, and no waiver shall be inferred from or implied by
anything done or omitted by the Lessor or the Lessee save only expressed
waiver in writing. All rights and remedies of the Lessor in this Lease
contained shall be cumulative and not alternative.
20.11 This Lease shall enure to the benefit of and be binding
upon the respective heirs, executors, successors, administrators and assigns
of the parties hereto.
20
20.12 Arbitration
The Lessor and Lessee covenant and agree that in the case
of any dispute between the Lessor and the Lessee during the term hereof as to
any matter arising hereunder, either party shall be entitled to give to the
other party notice of such dispute and demand, the parties shall appoint a
single arbitrator to settle said dispute. In the event that the parties are
unable to agree on the appointment of said arbitrator within five (5) days of
said notice then each party shall at once each appoint a single arbitrator
and such appointees shall jointly appoint a third. The decision of said
single arbitrator or of a majority of the three arbitrators, in the event
that they are required, shall be final and binding upon the parties1 hereto,
who covenant one with the other that their disputes shall be so decided by
arbitration alone and not by recourse to any court by action of law. The
provisions of the COMMERCIAL ARBITRATION ACT, S.B.C. 1986, c.3 and all
amendments thereto shall apply to any arbitration hereunder.
IN WITNESS WHEREOF the parties hereto have caused this
Lease to be duly executed on the day and year first above written.
THE CORPORATE SEAL OF
MARIO'S PINOCCHIO RISTORANTE
LTD. was hereunto affixed in the
presence of:
/S/ Xxxxx Xxxxxxx G/S
------------------------------------
Authorized Signatory
THE CORPORATE SEAL OF
SOFTNET INDUSTRIES INC.
was hereunto affixed in the
presence of:
/S/ D. J. Slamko C/S
------------------------------------
Authorized Signatory
Schedule "A"
Basement Area
[DIAGRAM]
