Exhibit 10.24
July 28, 2004
394617 B.C. Ltd.
0000000xx Xx.
Xxxxxx, X.X. XXX 0X0
Dear Sirs,
Re: Lease Agreement: Essential Innovations Corporation/
394617 B.C. Ltd.
Lease Term: July I, 2004 - June 30, 2007
(The "Original Lease Agreement")
Building Address: #000-0000 000xx Xxxxxx
Xxxxxx, X.X. Xxxxxx
Re: Confirmation of Lease Details:
Since execution of the Lease Agreement dated, June 1st, 2004, further review by
the CFO of Essential Innovations has demonstrated that some important items of
particular interest from the Letter of Intent signed on May 5th, 2004, had been
left out of the formal Lease Agreement. Essential Innovations is confident that
the terms of the Letter of Intent are totally and completely representative of
the understanding between both Essential Innovations and 394617 B.C. Ltd., but
it is felt that these points should be officially clarified and as such added to
the lease through the signing of this document as an addendum to the Lease
Agreement dated, June 1st, 2004. Due to the fact that the lease was signed after
the Letter of Intent and the lease notes that it "represents the entire
agreement between the parties", we enclose forthwith the missing details from
the original Letter of Intent, so that this document may be executed by both
parties for our mutual benefit and appreciation, and added as an official
addendum to the Lease Agreement.
The following points are understood and agreed to between parties as the true
terms of the Lease Agreement dated June 1st, 2004, as based upon the signed
Letter of Intent dated May 5th, 2004:
1. The deposit paid of $23,161.22 is for the (first month of
October 2004, being in the amount of $13,102.15 and for the
last month of June 2007, being in the amount of $10,059.07)
2. July and August are the "fixturing period" - and as such there
is to be no basic rent and no additional rent for these
months, only the responsibility of utility and insurance costs
3. The month of September is to be free from basic rent
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4. A TI allowance of $25,300 ($10 per sq. ft. X 2,530 sq. ft.)
for each of the main floor office and the 2nd floor offices
-total maximum of $50,600, is agreed to be granted and
credited at such time that the TI is completed on a
floor-by-floor basis: it is agreed that such amount may be
made payable to Essential Innovations from 394617 B.C. Ltd.
by:
A. Cash allowance to the Tenant upon completion of
improvements, or
B. Free rent
5. Part 23 of the lease only mentions one option to renew for 2
years, however, from the Letter of Intent it was agreed that
there is to be 2 options for 2 years renewal each
We hope and trust that you find everything here to be consistent with our prior
discussions and agreements. It would be most helpful to have this document
executed by all parties and then attached as an addendum to the Lease Agreement
of June 1st, 2004, for consistency and clarity purposes.
Please sign and return a copy of this letter acknowledging receipt of same.
Kindest regards,
Letter Agreed to: Witness: /s/ Xxxxx XxXxxxxxx July 29, 2004
Xxxxx Xxxxxxx Xxxxx XxXxxxxxx
President President/CEO
Essential Innovations Corporation Essential Innovations Technology Corp.
Letter Agreed to: /s/ Xxx Xxxxxxx Date Received: July 29, 2004
Xxx Xxxxxxx
On behalf of 394617 B.C. Ltd.
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THIS LEASE dated June 1, 2004, is between
394617 B.C. LTD.
0000 - 000xx Xxxxxx
Xxxxxx, X.X. X0X 0X0
("landlord")
AND
ESSENTIAL INNOVATIONS CORPORATION
Xxxx 000, 00000 000X Xxxxxx
Xxxxxxx, X.X.
X0X 0X0
("tenant")
BACKGROUND
A The Landlord is the registered owner of the lands ("Land") and building
("Building") situate at 0000 - 000xx Xxxxxx, Xxxxxx, X.X. X0X 0X0 which is
legally described as :
Xxx X, Xxx. 0 XX0 XXXX 00000 N.W.D.
B. The Landlord has agreed to lease to the Tenant that portion of the Land and
the Building identified as B West (a diagram of which is set out in Schedule A)
on the terms and conditions set out below.
AGREEMENTS
For good and valuable consideration, the receipt and sufficiency of which each
party acknowledges, the parties' covenant and agree as follows:
PART 1
DEFINITIONS/SCHEDULES
1.1 Defined Terms. In this Lease:
(a) "Additional Rent" means all sums of money to be paid by the Tenant, whether
to the Landlord or otherwise, under this Lease except Basic Rent;
(b) "Basic Rent" means the basic rent set out in paragraph 4.2(a)(i);
(c) "Building" means the buildings, structures, facilities and other
improvements referred to in recital A and erected, or to be erected, on the
Land, and includes any other buildings, structures, facilities and improvements
constituting an expansion of the Building;
(d) "Goods and Service Tax" or "GST" means the tax presently levied under Part
IX of the Excise Tax Act (Canada) or as may be amended or substituted from time
to time and includes any sales tax, multi-stage sales tax, value added tax,
consumption tax or any other tax, levy, duty or assessment levied in lieu
thereof or in addition thereto from time to time;
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(e) "Land" means the land referred to in recital A;
(f) "Landlord" means the party described as such above and its successors and
assigns;
(g) "Lease" means this Lease as amended from time to time;
(h) "Leasehold Improvements" means all fixtures, trade fixtures, improvements,
installations, alterations and additions from time to time made, erected or
installed by, or on behalf of, the Tenant in or upon the Premises, including the
Tenant's Work, with the exception of furniture and equipment not of the nature
of fixtures, but includes all partitions however fixed (including floor to
ceiling moveable partitions) and includes all wall-to-wall carpeting with the
exception of carpeting laid over vinyl tile or other finished floor and affixed
so as to be readily removable without damage;
(i) "Mortgage" means a mortgage or charge (including a deed of trust and
mortgage securing bonds and all other indentures supplemental to it) on or in
respect of the Land or Building or any part of them, and includes all renewals,
modifications, consolidations, replacements and extensions;
(j) "Mortgagee" means the mortgagee or trustee for bondholders, as the case may
be, named in a Mortgage;
(k) "Operating Costs" means the aggregate (without duplication) of all costs and
expenses for the operation, maintenance and repair of the Premises, whether
contemplated at the time of execution of this Lease or otherwise including,
without limitation, all costs and expenses of:
(i) all insurance which the Landlord elects to obtain, in respect of
any risk or casualty, including public liability, property damage and
loss of rental income Insurance,
(ii) cleaning, painting, janitorial services, including snow and ice
removal, garbage and waste collection and disposal,
(iii) building supplies and the rental equipment used by the Tenant in
maintenance and operating services,
(iv) repairs and replacements to, and maintenance of, the Premises
including, but not limited to, the cost of gardening, landscaping and
outdoor area maintenance and equipment, maintenance and repair of the
roof of the Building and the surface of the exterior walls of the
Building; but excluding structural repairs,
(v) GST on goods and services provided by or on behalf of the Landlord;
and
(vi) license, permit and inspection fees,
but does not include:
(vii) property taxes and utility charges imposed against the Premises;
(l) "Permitted Business" means the permitted business described in paragraph
5.1;
(m) "Premises" means that portion of the Land and the Building identified as
Unit E on Schedule C;
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(n) "Prime Rate" means the highest annual rate of interest announced at the
relevant time by the Canadian Imperial Bank of Commerce as a reference rate in
effect for determining interest rates on Canadian dollar commercial loans made
by it in Canada;
(o) "Rent" means Basic Rent and Additional Rent;
(p) "Term" means the period of time set out in paragraph 3.2;
PART 2
INTENT
2.1 Net Lease. The Tenant will pay to the Landlord duly and punctually all Rent
without any deduction, abatement or set-off whatsoever, it being the intention
of the Landlord and the Tenant that the Tenant be responsible for the Basic Rent
and all Operating Costs (as defined herein) in respect of the Premises
PART 3
PREMISES, TERM
3.1 Demise. The Landlord leases the Premises to the Tenant for the Term, and the
Tenant leases the Premises from the Landlord, on and subject to the covenants
and agreements contained in this Lease.
3.2 Commencement of Term. The Term of this Lease is for 3 years and will
commence on July 1, 2004, and will end on June 30, 2007.
3.2 Extension of Term. Any agreement to lease the Premises subsequent to will be
on such terms as the parties may agree upon or by way of an exercise of the
Option to Renew set out in Part 23.
PART 4
BASIC RENT AND ADDITIONAL RENT
4.1 Covenant to Pay Rent. The Tenant covenants to pay when due Rent and all
other costs and charges payable by it under this Lease.
4.2 Rent, including Basic Rent. - See Schedule B
(a) During the Terms, the Tenant will pay to the Landlord, the Basic Rent of
$(see note) per month plus applicable GST at the commencement of each month.
Additional rent paid monthly and adjusted annually.
(b) The Tenant will pay to the Landlord the Additional Rent as specified in
paragraph 4.3 and applicable Goods and Services Tax from time to time as and
when such payments are due and in any event within 15 days of notice from the
Landlord delivered during or after the Term if the Landlord has incurred an
expense which qualifies as part of the Operating Costs;
(c) All Rent will accrue from day to day, and if for any reason it is necessary
to calculate Rent for less than one month, an appropriate adjustment will be
made pro rata on a daily basis to compute the Rent for that irregular period.
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4.3 Additional Rent.
(a) During the Term, the Tenant will pay, when due, to the Landlord (or to
others, as required), as Additional Rent:
(i) all Operating Costs (as defined);
(ii) all other sums of money required under this Lease to be paid to
the Landlord or to other persons by the Tenant whether or not
designated as Additional Rent other than Basic Rent.
(b) The Tenant will pay to the Landlord GST as required under this Lease, and if
there is no specific provision relating to a payment of GST, the following
applies:
(i) GST will be paid either at the same time and in the same manner as
monthly payments of Rent are payable; or
(ii) if a specific amount of GST which would be payable hereunder was
unknown to the Landlord and Tenant at the time it became payable to the
Landlord under paragraph 4.3(b)(i), then the Tenant will pay the amount
of GST to the Landlord on receipt of notice from the Landlord
specifying the amount of the GST;
4.4 Dispute as to Costs. If the Tenant disputes the amount of any monies to be
paid by the Tenant to the Landlord under this Lease, other than Basic Rent, the
certificate of an independent Chartered Accountant appointed by, or acceptable
to, the Landlord to determine the amount will be conclusive and binding on the
Landlord and Tenant. The costs of obtaining that certificate will be immediately
due and payable by the Tenant if the amount of money payable by the Tenant for
the period, as established in the certificate, is not less than 95% of the
amount claimed by the Landlord.
PART 5
USE OF PREMISES
5.1 Permitted Business. The Tenant will use the Premises solely for the purpose
of conducting R&D, MFG. plus distribution and training. The Tenant will not use
the Premises or permit them to be used for any other purpose without the
Landlord's prior written consent not to be unreasonably withheld. -Research +
Development -Manufacturing + Distribution -Training + Seminars
5.2 Operations by Tenant.
(a) Without limiting the generality of its other obligations under this Lease,
the Tenant will operate the Premises in a good, efficient and business-like
manner and will keep the Premises neat and clean.
(b) In regard to the use and occupancy of the Premises, the Tenant will at its
expense:
(i) keep the inside and outside of all glass in the doors and windows
of the Building and all exterior surfaces of the Building clean,
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(ii) replace promptly any cracked or broken glass of the Building with
glass of like grade and quality,
(iii) maintain the Premises in a clean, orderly and sanitary condition
and free of insects, rodents, vermin and other pests,
(iv) keep any garbage, trash, rubbish or other refuse in suitable
containers within the interior of the Premises until removed and remove
garbage, trash, rubbish or other refuse on a daily basis,
(v) keep all mechanical apparatus installed by the Tenants free of
vibration and noise which may be transmitted beyond the Premises,
(vi) comply with all laws, ordinances, rules and regulations of
governmental authorities concerning or related to the Premises,
including without limitation, those dealing with the construction,
repair, maintenance, operation, environmental safety, use and occupancy
of the Premises, and
(vii) prevent odours, gases, dust, fumes, vapours, steam or water from
emanating from the Premises.
5.3 Use of Outdoor Areas located on Land.
(a) Without limiting the generality of its other obligations under this Lease,
the Tenant will maintain the Land in a clean, safe and attractive condition.
(b) The Tenant will not install any permanent improvements on any portion of the
Land, unless it has obtained the prior written consent of the Landlord.
(c) The Tenant may from time to time use outdoor area of the Land to store
certain materials if stored in a clean and orderly manner with the expressed
prior consent of the Landlord.
5.4 Parking Areas. The Tenant will maintain the parking area and other exterior
areas of the Premises in good repair and condition.
5.5 Compliance with Laws. The Tenant will comply with all laws, ordinances,
rules and regulations of governmental authorities having jurisdiction concerning
or related to the Premises including, without limitation, those dealing with
zoning, use, occupancy, repairs and maintenance undertaken by the Tenant and
environmental safety.
PART 6
ZONING
6.1 Zoning. The Tenant acknowledges that it has conducted its own investigation
of the zoning of the Premises and represents to the Landlord that its operations
do not and will not contravene such zoning and the Tenant further acknowledges
that it has not relied upon any representation of the Landlord in respect of the
zoning of the Premises.
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PART 7
REPAIR
7.1 Landlord's Repair. The Landlord will be entitled but will not be obliged at
any time during the Term to keep the foundations, roof, exterior walls
(excluding glass), structural sub-floors, bearing walls, columns, beams and
other structural elements of the Premises in a reasonable state of repair. If it
elects to repair, that such repair will be limited to that prudent owner of
reasonably similar premises would do having regard to the size, age and location
of the Premises.
7.2 Tenant's Repair. The Tenant will at its cost, subject to paragraphs 7.1 and
7.4:
(a) maintain, operate and repair the Premises to the standards of the Premises
at the time this Lease was entered into and keep all portions of the Premises in
good and substantial repair, including all Leasehold Improvements and all
furniture, equipment and other facilities such as, without limitation, wiring,
piping, lighting and plumbing fixtures, operating equipment and the plumbing,
sprinkler, heating ventilating, air conditioning and humidity control systems
located on, in, under, above or which directly serve the Premises, the front of
the Premises and all glass and utilities in the Premises, but with the exception
of other structural elements of the Premises;
(b) permit the Landlord upon reasonable notice or at any time during an
emergency or apparent emergency, to enter and examine the state of operation,
maintenance and repair, and the Landlord may give notice to the Tenant requiring
that the Tenant perform such maintenance or repair as the Landlord may find
necessary from such examination and the Tenant will pay the cost of such
maintenance and repair; and
(c) if any part of the Premises becomes damaged or destroyed through the willful
act, negligence, or omission of the Tenant or any of its officers, employees,
customers or other invitees, the Landlord reserves the right to conduct all
repairs or replacements and to require the Tenant to reimburse the Landlord for
the reasonable cost of repairs or replacement.
7.3 Abatement or Rent. If there is damage to the Premises, which prevents use of
or access to the Premises or the supply of services essential to the Premises
and if the damage is such that the Premises or a part of the Premises is
rendered not reasonably capable of use by the Tenant for the conduct of its
business for a period of time exceeding 10 consecutive days,
(a) unless the damage was caused by the negligence of the Tenant or an assignee,
subtenant, concessionaire, licensee or an officer, employee, customer or other
invitee of any of them, the Basic Rent for the period beginning on the
occurrence of the damage until at least a substantial part of the Premises is
again reasonably capable of use and occupancy for the purpose aforesaid will
xxxxx in the proportion that the area of the part of the Premises rendered not
reasonably capable of use by the Tenant for the conduct of its business bears to
the rentable area of the Premises; and
(b) unless this Lease is terminated under paragraph 7.4, the Landlord or the
Tenant or both, as the case may be (according to the nature of the damage and
their respective obligations to repair), will repair the damage with all
reasonable diligence, but any abatement of Basic Rent to which the Tenant is
entitled under this paragraph will not extend beyond the date by which, in the
reasonable opinion of the Landlord, the Tenant should have completed its repairs
with reasonable diligence.
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7.4 Termination in Event of Damage.
(a) The Landlord, by written notice to the Tenant given within 60 days of the
occurrence of damage to the Building, may terminate this Lease if the Building
is damaged by any cause and in the reasonable opinion of the Landlord it is
inappropriate to rebuild or repair the damage having regard to the extent of the
damage and the length of the unexpired term of the Lease.
(b) The Tenant, by written notice to the Landlord given within 60 days of the
occurrence of the damage, may terminate this Lease if the Building is damaged by
any cause and the damage is such that the Building or a substantial part of the
Building is rendered not reasonably capable of use by the Tenant for the conduct
of its business and in the reasonable opinion of the Landlord cannot be repaired
or rebuilt with reasonable diligence within 6 months or the expiry of the Lease,
which ever occurs first.
(c) If this Lease is terminated under either (a) or (b) above, the Tenant will
not be bound to repair as provided in paragraph 7.2, and the Tenant will deliver
up possession of the Premises to the Landlord with reasonable speed but in any
event within 15 days after the giving of the notice of termination, and all Rent
will be apportioned and paid to the date on which possession is delivered up,
subject to any abatement to which the Tenant may be entitled under paragraph
7.3, but otherwise the Tenant will repair the damage with all reasonable
diligence and, without limiting the foregoing, the Tenant will restore or
reconstruct all Tenant's Work.
7.5 Certificate of Architect. If the Building is damaged and there is a dispute
as to the length of time required to repair or rebuild the Building or restore
any part of the Premises, or as to the cost of repairing or rebuilding the
Building, or as to whether the Premises or a substantial part of the Premises
are rendered not reasonably capable of use by the Tenant for the conduct of its
business or have once again become capable of such use, the dispute will be
settled, at the cost of the Tenant (if the Landlord's position is confirmed), by
an independent architect appointed by the Landlord and his certificate will be
conclusive. Otherwise the cost will be paid by the Landlord.
7.6 Diligence and Quality. All repairs to be done by the Landlord or the Tenant
will be commenced as soon as reasonably practicable and completed diligently and
in a good and workmanlike manner.
7.7 Landlord's Approval.
(a) Before commencing any repairs, replacements, maintenance, alteration,
decoration or improvements set out above, or elsewhere referred to in this
Lease, which are reasonably estimated by the Tenant to cost in excess of $10,000
the Tenant will obtain the Landlord's written approval and will, if reasonably
required by the Landlord to do so, submit plans and specifications therefor or,
if requested by the Landlord, permit the Landlord to effect the repair,
replacement, maintenance, alteration, decoration or improvement, at the Tenant's
cost.
(b) The Tenant will not in any event make any alterations to the structure of
any portion of the Premises or to exterior walls the Premises without the prior
written consent of the Landlord.
(c) The Tenant will supply the Landlord with copies of all plans prepared for
the Tenant for any work done to the Premises.
7.8 Landlord's Right to do Tenant's Repair. If the Tenant refuses or neglects to
repair, maintain, restore or replace properly as required under this Part and to
the reasonable satisfaction of the Landlord, the Landlord may make such repairs,
restoration or replacements without liability to the Tenant (including for the
Landlord's negligence and the negligence of other parties for whom the Landlord
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is responsible in law) for any loss or damage that may accrue to the Tenant's
property, Leasehold Improvements, or other property or to the Tenant's business
by reason thereof, and upon completion thereof, the Tenant will pay the
Landlord's actual reasonable costs in the circumstances plus 15% of such costs,
for making such repairs, restoration or replacements immediately upon
presentation of an invoice for such costs.
PART 8
UTILITIES AND SERVICES - PREMISES
8.1 Limitation of Liability. The Landlord will not be liable to the Tenant in
damages or otherwise for an interruption or failure in the supply of utilities
or services to the Premises but the Landlord will, at the Tenant's cost,
cooperate with the Tenant to secure the re-supply of an interrupted or failed
utility or service.
8.2 Tenant not to Overload Utility and Service Facilities. The Tenant will not
install equipment that will exceed or overload the capacity of utility or
service facilities and if, in the reasonable opinion of the Landlord, equipment
installed by the Tenant requires additional facilities, they will be installed
at the Tenant's expense in accordance with plans and specifications approved by
the Landlord prior to installation. The Landlord reserves the right to install
such additional equipment at the Tenant's expense, which will not exceed 15% of
the cost of the additional equipment.
PART 9
SUBORDINATION, ATTORNMENT AND STATUS STATEMENT BY TENANT
9.1 Subordination and Attornment.
(a) This Lease is subordinate to every Mortgage and the Tenant will subordinate
this Lease to every Mortgage that comes into being before, on or after the date
of this Lease and execute promptly and in registrable form a document in
confirmation of the subordination if requested by the Landlord, in which the
Tenant also will agree with the Mortgagee that if the Mortgagee becomes a
mortgagee in possession or takes action to realize the security of the Mortgage
the Tenant will attorn to the Mortgagee as a tenant upon all the terms of this
Lease, but only if the Mortgagee agrees in writing to accept the attornment and
permit the Tenant, if not in default, to continue in occupation of the Premises
until this Lease is terminated by the passage of time or by action taken because
of a default of the Tenant.
(b) The Tenant appoints the Landlord its agent or attorney (at the Landlord's
option) to execute the documents referred to in (a) above as agent or attorney
of the Tenant and if, following 10 days' notice to do so, the Tenant fails to
execute any of them, the Landlord may terminate this Lease.
9.2 Status Statement. At any time and from time to time within 10 days after a
written request by the Landlord, the Tenant will execute, acknowledge and
deliver to the Landlord or an assignee, Mortgagee, proposed purchaser or other
person as the Landlord designates, a certificate in a form and content
reasonably requested by the Landlord to include, without limitation, statements
that:
(a) this Lease is unmodified and in force in accordance with its terms (or if
there have been modifications, that this Lease is in force as modified, and
identifying the modifications, or if this Lease is not in force, that it is not)
and that the Tenant is in possession of the Premises;
(b) the commencement date and expiry date of this Lease;
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(c) the date to which Rent has been paid with particulars of any prepayment of
Rent;
(d) whether or not there is an existing default by the Tenant in the payment of
Rent or any other sum of money under this Lease, and whether or not there is any
other existing default by any party under this Lease concerning which a notice
of default has been given, and if there is any, specifying its nature and
extent; and
(e) whether or not there are any set-offs, defences or counterclaims against the
enforcement of the obligations of the Tenant under this Lease.
PART 10
INSURANCE AND INDEMNITY
10.1 Landlord's Insurance. The Landlord intends, but is not obliged to take out
and keep in force the insurance coverage described in Schedule A or such other
or additional coverage as is recommended by the Landlord's insurance advisors
from time to time.
The cost of insurance obtained under paragraph 10.1 will be included in
Operating Costs. In spite of any contribution by the Tenant to the cost of the
Landlord's insurance and the Landlord's covenants under paragraph 10.1, the
Tenant is not relieved of any liability arising from or contributed to by its
acts, fault, negligence or omissions and no insurable interest is conferred on
the Tenant under any policies of insurance carried by the Landlord nor does the
Tenant have a right to receive any proceeds thereunder.
10.2 Tenant's Insurance. The Tenant, at its expense, will maintain, throughout
the Term and any period when it is in possession of all or any portion of the
Premises, the insurance ("Insurance") of the types and in the coverage amounts
described in Schedule B or such other coverage as may be agreed upon from time
to time by the Landlord and the Tenant. The Tenant will cause each insurance
policy to be (i) primary, noncontributing with, and not excess of, any other
insurance available to the Landlord or the Mortgagee, (ii) contain a prohibition
against cancellation or material change that reduces or restricts the Insurance
(except on 30 days' prior written notice to the Landlord), (iii) in those
instances in which the Landlord and the Mortgagee are insureds, contain a waiver
in respect of the interests of the Landlord and the Mortgagee of any provision
in any such insurance policies concerning any breach or violation of any
warranties, representations or conditions in such policies, and (iv) be in a
form and with insurers satisfactory to the Landlord and the Mortgagee.
10.3 Waiver of Subrogation, Cross-Liability, Co-Insurance. Any policy of
insurance under paragraph 10.2 will:
(a) name the Landlord as a loss payee and contain a waiver of subrogation
against the Landlord and its employees and agents or the Mortgagee (if any),
whether the loss or damage is caused by the fault, default, act, omission or
negligence of the Landlord or those for whom the Landlord is in law responsible;
(b) except concerning the Tenant's stock-in-trade, and furniture, incorporate
the standard mortgage clause of the Mortgagee (if any);
(c) cover all property owned by the Tenant or for which the Tenant is legally
liable, located within the Premises, including, without limitation, the Tenant's
Work and the Leasehold Improvements, in an amount not less than the full
replacement cost thereof. including by-laws extension, which will be reviewed at
least annually by the Tenant and will be subject to the approval of the
Landlord.
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10.4 Proceeds of Tenant's Insurance. The proceeds of Insurance under paragraph
10.2 will be and are assigned and made payable to the Landlord. To the extent
that they pertain to damage or destruction to the property of the Landlord, they
will be released to the Tenant (if the Tenant is not in default of this Lease)
upon the Tenant's written request, in progress payments, at stages determined by
the Architect, upon receipt by the Landlord of a certificate from the Architect
stating that repairs to each stage of the Premises have been satisfactorily
completed, free of liens, by the Tenant, but if the Tenant defaults in making
such repairs and if the Landlord, at the Landlord's option, performs such
repairs, the proceeds may, without limiting the Landlord's rights under this
Lease be applied by the Landlord to the costs thereof, plus a further 15% of
such costs, representing the Landlord's overhead. If this Lease is terminated in
accordance with the provisions of paragraph 7.4, the Tenant will be entitled
solely to those proceeds of insurance which represent the value of its
stock-in-trade or other items it is entitled to remove at the expiration of the
Term, and not to the extent of the value of Leasehold Improvements.
10.5 No Alienation of Proceeds. Except as provided in this Lease, the Tenant
will not assign or otherwise alienate any proceeds of insurance.
10.6 Landlord's Right to Insure for Tenant. If the Tenant fails to take out or
keep in force any such Insurance, the Landlord will on not less than 48 hours'
written notice to the Tenant have the right, but not the obligation, to do so
and to pay the premium therefor and in such event the Tenant will repay to the
Landlord the amount so paid by the Landlord as Additional Rent, payable on the
first day of the next month following the payment by the Landlord, but if the
Tenant cures that failure the Landlord will secure cancellation of the insurance
taken out by the Landlord at the Tenant's cost.
10.7 Limitation of Liability. The Landlord will not be liable to the Tenant in
respect of any loss, injury or damage to the Tenant or any other person for any
loss, injury or damage arising from or out of any occurrence in, upon, at or
relating to the Premises or any part thereof or any loss or damage to property
(including loss of use thereof) of the Tenant or any other person located in the
Premises, howsoever caused and whether or not any injury, loss, or damage
results from any fault, default, negligence, act or omission of the Landlord, or
its agents, servants, employees or any other person for whom the Landlord is in
law responsible. Without limiting the generality of the foregoing, the Landlord
is not liable for death, injury, loss or damage of or to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Premises or from the pipes,
appliances or plumbing works or from the roof, street or sub-surface or from any
other place or by dampness or by any other cause of any kind. The intent of this
paragraph is that the Tenant and any persons having business with the Tenant is
to look solely to the Tenant's insurers to satisfy any claims which may arise on
account of injury, loss or damage to the Tenant or any other person or to the
property of the Tenant or of any other person, irrespective of the cause.
10.8 Indemnification of Landlord. The Tenant will indemnify the Landlord and
save harmless from and against all claims, actions, damages, liabilities, costs
and expenses in connection with loss of life, personal injury or damage to
property arising from any occurrence on the Premises, or the occupancy or use of
the Premises, or occasioned wholly or in part by an act or omission of the
Tenant, its officers, employees, agents, customers, contractors or other
invitees, licensees or concessionaires or by anyone permitted by the Tenant to
be on the Premises.
10.9 Tenant's Contractor's Insurance. The Tenant will require any contractor
performing work on the Premises to carry and maintain, at no expense to the
Landlord, comprehensive general liability insurance and other insurance in
amounts and on terms reasonably determined by the Landlord and provide the
Landlord with satisfactory proof of that insurance from time to time.
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10.10 Tenant's Property at its Risk. All property of the Tenant kept or stored
in the Premises is at the risk of the Tenant.
10.11 Survival. The provisions of paragraph 10.8 will survive the expiration or
sooner termination of the Term.
10.12 Combined Insurance. In the event the Landlord and Tenant agree, the
parties may from time to time purchase a single policy of insurance which
includes both the Landlord's insurance and Tenant's insurance and shall contain
such other terms and conditions (which may be different from the terms and
conditions set out in this Part 10) as the parties may agree upon. The cost of
such insurance shall be paid for by the Tenant.
PART 11
ASSIGNMENT AND SUBLETTING
11.1 Landlord's Consent. The Tenant will not assign, mortgage, charge or
encumber this Lease, in whole or in part, nor sublease all or any part of the
Premises or permit them to be used or occupied by any other person (collectively
"Transfer"), without the prior written consent of the Landlord, such consent not
to be unreasonably withheld.
11.2 Assignment to Related Party. The Landlord consents to an assignment of this
Lease to a person or persons controlled by the Tenant provided that the Lease is
reassigned to the Tenant if it ceases to control such person.
11.3 Terms and Conditions of Transfer. The following terms and conditions apply
In respect of any Transfer:
(a) the Landlord's consent to a Transfer, if granted, will not constitute a
waiver of the requirement for the. Tenant to obtain the Landlord's prior written
consent to any subsequent Transfer;
(b) if the Landlord consents to a proposed Transfer, the Landlord will have the
right to approve the form of the Transfer;
(c) in spite of any Transfer, the Tenant will remain fully liable for and will
not be released from the performance of each and every one of the obligations of
the Tenant under this Lease for the balance of the Term. Without limitation, the
foregoing applies whether or not the Transferee is in default of this Lease and
whether or not this Lease is assigned by a trustee in bankruptcy of the
Transferee. The Tenant is not relieved of liability for any breach of this
Lease, whether occurring before or after the Transfer; and
(d) any Transfer will provide that the Transferee has the rights and is subject
to the obligations, of the Tenant under this Lease, except as it may be amended
by the terms of the consent.
11.4 Documentation for Transfer. The Tenant will promptly execute and the Tenant
will cause the Transferee to promptly execute such agreements and documents as
are necessary, in the opinion of the Landlord, to complete the Transfer. No
assignment will be made other than to a Transferee which undertakes to perform
and observe the obligations of the Tenant under this Lease by entering into an
assumption agreement directly with the Landlord. The Tenant will pay to the
Landlord its reasonable expenses arising out of the request for consent to a
Transfer and for the change in possession of the Premises, including, but not
limited to, legal and other professional fees and costs incurred in connection
with the negotiation, review, processing and completion of the Transfer.
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11.5 Assignment by Operation of Law. The prohibition against Transfer without
the consent required by this Part 11 will be construed to include a prohibition
against any Transfer by operation of law.
11.6 Acceptance of Rent. If this Lease, or any part of it, is assigned, or if
all or part of the Premises is sublet or occupied by any party other than the
Tenant, in any case without the consent of the Landlord, the Landlord may
collect Rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Rent reserved in this Lease, but the assignment, sublease,
occupancy or collection will not be considered a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as Tenant.
11.7 No Advertising. The Tenant will not advertise the whole or any part of the
Premises for lease nor permit any' agent or broker to do so, unless the prior
written approval of the Landlord has been received.
11.8 Remedy of the Tenant. The Landlord will have no liability in connection
with any claims of any kind by the Tenant or others as a result of the
Landlord's withholding or delay of consent to any Transfer and the Tenant's (or
any other person's) only remedy in respect of the Landlord's withholding or
delay of consent will be to bring an application for a declaration that such
transaction should be allowed.
11.9 Assignment by Landlord. If the Landlord sells or otherwise transfers an
interest in the Land or the Building or in this Lease, in whole or in part, to
the extent that the purchaser or other party is responsible for compliance with
the obligations of the Landlord under this Lease, the Landlord without further
written agreement will be released from all of its obligations in this Lease.
PART 12
WASTE AND GOVERNMENTAL REGULATIONS
12.1 Waste or Nuisance. The Tenant will not commit or permit to be committed
waste upon the Premises, or nuisance or other thing that may disturb or
interfere with any person within 500 feet of a boundary of the Premises, whether
or not the nuisance arises out of the use of the Premises by the Tenant for a
purpose permitted by this Lease.
12.2 Governmental and Insurance Underwriters' Regulations.
(a) The Tenant, at the Tenant's cost, will comply with the applicable
requirements of all municipal, provincial, federal and other governmental
authorities now in force or which may hereafter be in force, including without
limitation, all laws and regulations pertaining to the use, possession, control,
removal, disposal and abatement of hazardous substances and all other laws and
regulations pertaining to the Tenant's occupancy or use of the Premises and will
observe in any occupancy and use of the Premises all municipal by-laws and
provincial and federal statutes and regulations now in force or which may
hereafter be in force, and will comply with all regulations made by fire
insurance underwriters. The provisions of this paragraph 12.2(a) will survive
the expiration or earlier termination of this Lease.
(b) The Landlord may enter the Premises at any time or times, with as little
interference to the conduct of the Tenant's business as is reasonably possible,
to enable the Landlord to comply with any municipal by-law or provincial statute
now or in the future applicable to the Premises whether or not the application
of the by-law or statute to the Premises results from an act or omission of the
Landlord or any other person.
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(c) If the Tenant has knowledge, or has reasonable cause to believe that any
hazardous substance has come to be located on, under or about the Premises, the
Tenant will, upon discovery of the presence or suspected presence of any
hazardous substance, give written notice of that condition to the Landlord.
Failure to provide written notice will be a default, permitting the Landlord to
terminate this Lease immediately.
(d) If the Landlord, in its sole discretion, believes that the Premises or the
environment have become contaminated with any hazardous substance, the Landlord,
in addition to its other rights under this Lease, may enter upon the Premises
and obtain samples from the Premises and under the Premises, for the purpose of
analysing the same to determine whether and to what extent the Premises or the
environment have become so contaminated. To the extent that contamination is
found and that such contamination was caused by the Tenant, the Tenant will
reimburse the Landlord for the costs of such inspection, sampling and analysis.
PART 13
ACCEPTANCE OF PREMISES
13.1 Acceptance of Premises. The Tenant accepts the Premises in their existing
condition and the Landlord will not have any further obligation to the Tenant
for defects or faults including specifically:
(a) latent defects in the Building which cannot be discovered on a reasonable
examination, and
(b) faults in structural elements relating to the Building not caused by the
Landlord's act or negligence.
13.2 No Representation. The Tenant acknowledges that there is no promise,
representation, warranty, or undertaking by, or binding upon, the Landlord
concerning the zoning of or title to the Premises or concerning the condition or
layout of, or the alterations, remodeling, decoration or installation of
improvements, equipment or fixtures in the Premises, except as expressly
contained in this Lease and the taking of occupancy, subject always to the
provisions of paragraph 13.1, is conclusive evidence as against the Tenant that
any representations by the Landlord have been satisfied.
PART 14
LEASEHOLD IMPROVEMENTS AND TRADE FIXTURES
14.1 Installation and Changes by Tenant.
(a) All Leasehold Improvements including, without limitation, trade fixtures
installed by, or on behalf of, the Tenant will be of first class quality. The
Tenant will not make or cause to be made any Leasehold Improvement, change,
decoration, addition or improvement or cut or drill into, nail or otherwise
attach, secure. or install any trade fixture, exterior sign, floor covering,
interior or exterior lighting, or mechanical or electrical system or fixture, or
plumbing fixture, shade or awning to any part of the Premises or to the exterior
of the Premises or hang from or affix anything to the ceiling, without first
obtaining the Landlord's written approval. The Tenant will not create or cause
to be created any mortgage, security interest or other encumbrance in respect of
the Leasehold Improvements (including trade fixtures), furniture or furnishings,
or inventory of the Tenant except with the prior written consent of the
Landlord.
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(b) The Tenant will not make or permit to be made any changes, alterations,
substitutions, replacements or improvements affecting the structure of the
Building or the exterior appearance of the Building or the operation of the
mechanical systems including, without limitation, the heating, plumbing,
electrical, or mechanical equipment in or connected with the Building without
obtaining the prior written consent of the Landlord.
14.2 Removal of Installations and Restoration by Tenant.
(a) All Leasehold Improvements when installed become the property of the
Landlord, without compensation to the Tenant, but the Landlord will have no
responsibility for the repair, replacement, operation, maintenance or insurance
of the Leasehold Improvements, which will remain the responsibility of the
Tenant.
(b) Upon termination of this Lease the Leasehold Improvements will remain the
property `of the Landlord unless required by the Landlord to be removed by the
Tenant.
(c) At the end of the Term the tenant will, at its expense, remove the Leasehold
Improvements to the extent requested by the Landlord and all furniture,
furnishings and equipment and make good any damage caused to the Premises by
such installation or removal and restore the Premises to a condition of good and
substantial repair. Every installation, removal or restoration by the Tenant of
furnishings, equipment, furniture and, if applicable, Leasehold Improvements,
will be done at the sole expense of the Tenant.
(d) If the Tenant does not remove any Leasehold Improvements, or its
furnishings) furniture or equipment as required by the Landlord, the Landlord
may) without liability on its part, and not as a bailee, without notice to the
Tenant, enter the Premises and remove such items at the Tenant's expense, plus
an administration charge of 15% of such amount, which will be paid by the Tenant
to the Landlord as Additional Rent, on demand, and such items may, without
notice to the Tenant or to any other person and without obligation to account
for them, be sold, destroyed) disposed of or used by the Landlord as it
determines.
14.3 Title on Abandonment. Without limiting any other rights of the Landlord
under this Part 14, should the Tenant abandon the Premises or should this Lease
be terminated before the proper expiration of the Term of this Lease due to a
default on the part of the Tenant then, as of the moment of default by the
Tenant, all furnishings and furniture of the Tenant (whether or not attached in
any manner to the Premises) will become and be considered to be the property of
the Landlord without indemnity to the Tenant and as additional liquidated
damages in respect of such default but without prejudice to any other right or
remedy of the Landlord.
14.4 Not to Overload Floors. The Tenant will not bring on the Premises anything
that by reason of its weight, size or use, in the reasonable opinion of an
architect appointed by the Landlord, might damage the Premises and will not
overload the floors of the Premises. If overloading occurs the Tenant will
forthwith repair any damage or pay to the Landlord the cost of repairing the
damage and will also pay for any consequential damages arising from the
overloading.
14.5 Tenant to Discharge All Liens. The Tenant will promptly pay all its
contractors, subcontractors and materialmen and do all things necessary to
ensure that no lien is claimed against the Premises or any part thereof and
should a claim of lien be filed, the Tenant will cause it to be discharged or
vacated at the Tenant's expense within 7 days after it is brought to the
attention of the Tenant or provide adequate security for it to the extent
approved by the Landlord. The Landlord may, but it is not obligated to discharge
the lien by paying the amount claimed to be due into court, or by any other
means available to the Landlord, and the amount paid, plus all costs, including
without limitation, professional and solicitors fees (on a solicitor and own
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client basis) incurred by or on behalf of the Landlord concerning the lien, plus
any damages suffered by the Landlord as a result of the filing of the lien, will
be forthwith paid, on demand, by the Tenant as Additional Rent. The Tenant
acknowledges that the Landlord may file a notice of interest in the applicable
land title office under the provisions of the Builders Lien Act of any
legislation in amendment or substitution thereof evidencing that the Landlord is
not responsible for any of the Tenant's improvements. The Tenant agrees to
cooperate with the Landlord in respect of the same and, if necessary, to execute
and deliver all other instruments and take any actions necessary to give effect
to the same.
14.6 Signs, Awnings and Canopies. The Tenant will not place or permit to be
placed or maintained on the roof or on any exterior or interior door, wall or
window of the Building or elsewhere on the Premises any sign, awning, canopy,
decoration, lettering, advertising matter or other thing of any kind and will
not place or maintain any decoration, lettering or advertising matter on the
glass of any window or door of the Building without first obtaining the
Landlord's written consent. This provision does not apply to such items in place
at the commencement of this Lease.
PART 15
DEFAULT OF TENANT
15.1 Tenant's Default. If:
(a) the Tenant fails to pay any Rent when due, whether or not demanded by the
Landlord;
(b) the Tenant fails to observe or perform any of its other obligations under
this Lease and the Tenant has not, within 7 days after notice from the Landlord
specifying the default, cured the default or, if the cure reasonably requires a
longer period, if the Tenant has not commenced to cure the default within the 7
day period and thereafter does not diligently pursue the cure of such default;
or
(c) if re-entry is permitted under other terms of this Lease;
the Landlord, in addition to any other right or remedy, may do any or all of the
following:
(d) re-enter and remove all persons and property from the Premises and the
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of the Tenant, all without service of notice or
resort to legal process and without the Landlord being guilty of trespass or
becoming liable for loss or damage occasioned by any of those actions; and
(e) terminate this Lease and all of the Tenant's rights under it;
15.2 Bankruptcy or Insolvency of Tenant. :
(a) If:
(i) any of the goods and chattels of the Tenant on the Premises at any
time during the Term are seized or taken in execution or attachment by
a creditor of the Tenant or the Tenant receives a notice from one or
more of its secured creditors that the creditor(s) intend to realize on
security located at or upon the Premises,
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(ii) the Tenant makes an assignment for the benefit of creditors or any
arrangement or compromise, or a bulk sale from the Premises other than
a bulk sale to an assignee or sublessee under an assignment or sublease
which under Part 11 was consented to,
(iii) a receiver-manager is appointed to control the conduct of the
business of the Tenant on or from the Premises,
(iv) the Tenant becomes bankrupt or insolvent or takes the benefit of
an Act now or hereafter in force for bankrupt or insolvent debtors or
files any proposal or a notice of intention to file a proposal,
(v) proceedings are instituted by the Tenant or any other person for an
order for the winding-up of the Tenant, or other termination of the
corporate existence of the Tenant,
(vi) without the written consent of the Landlord, the Premises become
and remain vacant for a period of 10 days except as necessitated for
the completion of repairs or are used by any persons other than those
entitled to use them under the terms of this Lease,
(vii) without the written consent of the Landlord, the Tenant abandons
or attempts to abandon the Premises or sells or disposes of its goods
or chattels or removes any of them from the Premises so that there
would not, in the event of abandonment, sale or disposal, be sufficient
goods on the Premises subject to distress to satisfy all Rent due or
accruing due hereunder, or
(viii) this Lease or any of the Tenant's assets on the Premises are
taken under a writ of execution, charge, debenture or other security
instrument,
then the Landlord may re-enter and take possession of the Premises as
though the Tenant or any other occupant of the Premises was holding
over after the expiration of the Term and this Lease may, it its
option be immediately terminated by notice left upon the Premises.
15.3 Landlord may Perform Tenant's Obligations. If the Tenant fails to perform
an obligation of the Tenant under this Lease the Landlord may perform the
obligation and for that purpose may enter on the Premises without notice and do
anything in respect of the Premises that the Landlord considers necessary to
cure the default. The Tenant will pay as Additional Rent all costs and expenses
incurred by or on behalf of the Landlord plus 15% for overhead upon presentation
of a xxxx. The Landlord will not be liable to the Tenant for loss or damage
resulting from such action by the Landlord, including loss or damage resulting
from the negligence of the Landlord or another person for whose negligence the
Landlord is responsible in law.
15.4 Right to Relet.
(a) If the Landlord re-enters, as provided in this Lease, it may at its option,
without terminating the Tenant's rights under this Lease, make alterations and
repairs considered by the Landlord necessary to facilitate a reletting, and
relet the Premises or any part thereof as agent of the Tenant for such period of
time and at such rent and upon such other terms and conditions as the Landlord
in its discretion considers advisable.
(b) Upon each reletting all rent and other monies received by the Landlord from
the reletting will be applied, first to the payment of indebtedness other than
Rent due hereunder from the Tenant to the Landlord, secondly to the payment of
costs and expenses of the reletting including brokerage fees and legal fees and
costs of the alterations and repairs, and third to the payment of Rent due and
16
unpaid under this Lease. The residue, if any, will be held by the Landlord and
applied in payment of future rent as it becomes due and payable.
(c) If the rent received from the reletting during a month is less than the Rent
to be paid during that month by the Tenant, the Tenant will pay the deficiency
to the Landlord. The deficiency will be calculated and paid monthly.
15.5 Re-entry Without Termination. No re-entry by the Landlord will be construed
as an electron on its part to terminate this Lease unless a written notice of
that intention is given to the Tenant. Despite a reletting without termination,
the Landlord may elect at any time to terminate this Lease for a previous
breach.
15.6 Damages. If the Landlord terminates this Lease for any breach, then, in
addition to other remedies, it may recover from the Tenant all damages it incurs
by reason of the breach including, without limitation, the cost of recovering
the Premises, professional and other legal fees (on a solicitor and own client
basis), the unamortized portion of any allowance, concession or inducement paid
by the Landlord under the terms of the tenancy (on the basis of an assumed rate
of depreciation on a straight line basis to zero over the Term) and the worth at
the time of termination of the excess, if any, of (i) the amount of rent and
charges equivalent to Rent reserved in this Lease for the remainder of the Term
over (ii) the then reasonable rental value of the Premises for the remainder of
the Term, calculated on a present value basis, all of which amounts will be
immediately due and payable by the Tenant to the Landlord. In determining the
Rent which would be payable by the Tenant after default, the Basic Rent
component of the annual Rent for each year of the unexpired Term will be
considered to be the average Basic Rent paid or payable by the Tenant from the .
beginning of the Term to the time of default, or during the preceding 3 full
calendar years, whichever period is shorter.
15.7 Acceleration of Rent. If any of the events referred to in paragraph 15.1 or
paragraph 15.2 occur then, in addition to all other rights available to the
Landlord, including the rights referred to in this paragraph 15.7, the full
amount of the current month's Basic Rent and Taxes, and all other payments
required to be made monthly by the Tenant, and the next ensuing 3 months' Basic
Rent and Additional Rent will immediately become due and payable as accelerated
rent, and the Landlord may recover the accelerated rent in the same manner as
Rent in arrears, including immediately distraining for it together with all
other arrears then unpaid.
15.8 Expenses for Remedying Breach. If the Landlord brings any proceeding
against the Tenant arising from an alleged breach of an obligation of the Tenant
in this Lease and it is established that the Tenant is in breach of that
obligation, the Tenant will pay to the Landlord all costs and expenses incurred
by the Landlord in those proceedings including, without limitation, legal fees,
on a solicitor and own client basis.
15.9 Interest on Overdue Monies. All overdue monies payable to the Landlord by
the Tenant on any account whatever will bear interest at the Prime Rate plus 6%
per annum from the due date until paid in full.
15.10 No Exemption from Distress. None of the property of the Tenant on the
Premises is exempt from levy by distress for Rent in arrears, and a claim being
made for exemption by the Tenant or on distress being made by the Landlord, this
paragraph 15.10 may be pleaded as an estoppel against the Tenant in any
proceedings brought to test the right to levy upon property claimed to be
exempt.
15.11 New Lease. If this Lease is either terminated or repudiated in the process
of insolvency or bankruptcy proceedings, with or without the consent of the
17
Landlord, and whether or not a Transfer of Lease has occurred, the Landlord may,
within 3 months after that event, require the Tenant, or its Trustee in
Bankruptcy, receiver or other successor, to enter into a lease with the Landlord
for the Premises for the remainder of the Term on the same terms and conditions
as contained in this Lease.
PART 16
REMEDIES OF LANDLORD And WAIVER
16.1 Remedies Cumulative. No exercise of a specific right or remedy by the
Landlord or by the Tenant precludes it from, or prejudices it in, exercising
another right or pursuing another remedy or maintaining an action to which it
may otherwise be entitled either at law or in equity.
16.2 No Waiver. The waiver by the Landlord or the Tenant of a breach of an
obligation in this Lease will not be considered to be a waiver of a subsequent
breach of that obligation or another obligation. The subsequent acceptance of
Rent by the Landlord will not be a waiver of a preceding breach by the Tenant of
an obligation in this Lease, regardless of the Landlord's knowledge of the
preceding breach at the time of acceptance of the Rent. No obligation in this
Lease will be considered to have been waived by the Landlord or by the Tenant
unless the waiver is in writing signed by the Landlord or by the Tenant, as the
case may be.
16.3 Injunctive Relief. If the Tenant breaches or threatens to breach any of the
terms of this Lease, the Landlord will have the right to injunctive relief, as
if no other remedies were provided for in this Lease.
16.4 Effect of Ten ant Default on Renewals. If the Tenant defaults under this
Lease prior to the date fixed as the commencement of any renewal or extension of
this Lease, whether by renewal or extension option contained in this Lease or in
a separate agreement, the Landlord may cancel such option or agreement for
renewal or extension of this Lease, upon written notice to the Tenant.
PART 17
ACCESS BY LANDLORD
17.1 Right of Entry.
(a) The Landlord and its agents may enter the Premises at all reasonable times
to examine them and to show them to a prospective purchaser, tenant or
mortgagee.
(b) The Landlord may make alterations, additions and adjustments to and changes
of location of the pipes, conduits, wiring, ducts and other installations of any
kind in the Premises where necessary in the opinion of the Landlord, but the
Landlord will take commercially reasonable steps to minimize any disruption of
the Tenant's business. The Landlord may take all material required on to the
Premises without constituting an eviction of the Tenant in whole or in part The
Rent reserved will not xxxxx while the alterations, additions or changes of
location are being made by reason of loss or interruption of the business of the
Tenant, or otherwise, and the Landlord will not be liable for damage to property
of the Tenant or of others located on the Premises as a result of any entry
including damage caused by the negligence of the Landlord or another person for
whose negligence the Landlord is responsible in law.
(c) During the 6 months prior to the expiration of the Term the Landlord may
place upon the Premises a notice "For Rent" and at any time, the Landlord may
place upon the Premises a notice "For Sale", which the Tenant will permit to
remain without interference.
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(d) If after reasonable notice to the Tenant (except in the case of an emergency
when no prior notice is required), the Tenant is not present to open and permit
entry into the Premises when the Landlord requires entry, the Landlord or its
agents may enter by a master key or may forcibly enter without rendering the
Landlord or its agents liable for any damage or trespass and without affecting
this Lease. Nothing in this paragraph 17.1 imposes on the Landlord an
obligation, responsibility or liability for the care, maintenance or repair of
the Premises or any part thereof except as specifically provided in this Lease.
The Landlord will have the right at all times to enter on the Premises in order
to install, construct, operate, maintain, repair and replace any utilities and
services, but the Landlord in doing so will exercise such right in a manner
which is commercially reasonable to minimize the extent of interference with the
use and enjoyment of the Premises.
17.2 Excavation. If an excavation is made upon any lands adjacent to the
Premises, or is authorized to be made, the Tenant will give to the person making
the excavation permission to enter the Premises for the purpose of doing work
required by the Landlord, without claim for damages or indemnification against
the Landlord or abatement or diminution of Rent.
PART 18
RULES AND REGULATIONS
18.1 Landlord May Make. The Landlord from time to time may establish, modify and
enforce reasonable rules and regulations regarding the use and occupancy of the
Premises.
PART 19
LANDLORD'S COVENANTS AND OBLIGATIONS
19.1 Quiet Enjoyment. Subject to the observance and performance by the Tenant of
all of its obligations under this Lease, the Tenant may use and possess the
Premises, in accordance with the provisions of this Lease, for the Term, without
interference by the Landlord, or any other party claiming by, through or under
the Landlord, except as otherwise provided in this Lease.
PART 20
OVERHOLDING
20.1 No Tacit Renewal. If the Tenant remains in possession of the Premises after
the end of the Term and without the execution and delivery of a new lease or
written renewal or extension of this Lease, there is no tacit or other renewal
of this Lease, and the Tenant will be considered to be occupying the Premises as
a Tenant from month to month at a monthly rental payable in advance on the first
day of each month equal to the sum of:
(a) the monthly instalment of Basic Rent payable for the last month of the Term,
(b) 1/12th of the amount of Additional Rent payable by the Tenant for the year
immediately preceding the last year of this Lease, and
(c) 1/12th of the property taxes for the immediately preceding calendar year;
and otherwise upon the terms and conditions set out in this Lease, so far as
applicable.
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PART 21
EARLY TERMINATION FOR DEMOLITION
21.1 Whereas the Landlord requires possession of the Premises for the purposes
of,
(a) demolition; or
(b) repairs or renovations so extensive that it will in the opinion of the
Landlord's architect require vacant possession of the Premises;
the Landlord may, at any time during the Term, give notice of termination of the
Lease provided that the date of termination specified shall not be sooner than 6
months after the date the notice is given.
PART 22
MISCELLANEOUS
22.1 Accord and Satisfaction. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the Rent stipulated in this Lease will be
considered to be other than on account of the earliest stipulated Rent, nor will
an endorsement or statement on a cheque or in a letter accompanying a cheque or
payment as rent be considered to be an accord or satisfaction, and the Landlord
may accept a cheque or payment without prejudice to the Landlord's right to
recover the balance of the Rent or pursue any other remedy.
22.2 No Partnership. The Landlord does not in any way or for any purpose become
a partner of, or joint venturer or a member of a joint enterprise with, the
Tenant.
22.3 Partial Invalidity. If a term, covenant or condition of this Lease or the
application thereof to any person or circumstances is held to any extent invalid
or unenforceable, the remainder of this Lease or the application of the term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable will not be affected.
22.4 Joint and Several Liability. If two or more individuals, corporations,
partnerships or other business associations compose the Tenant the liability of
each individual, corporation, partnership or other business association to pay
Rent and perform all other obligations of the Tenant under this Lease is joint
and several. If the Tenant is a partnership or other business association the
members of which are by virtue of statute or general law subject to personal
liability, the liability of each member is joint and several.
22.5 Registration. The Tenant will not register this Lease and the Landlord is
not obliged to deliver this Lease in registrable form.
22.6 Notice.
(a) Any notice or other communication required or permitted to be given under
this Lease will be in writing unless otherwise specified and will be considered
to have been given if delivered by hand, transmitted by facsimile transmission
or mailed by prepaid registered post in Canada, to the address or facsimile
transmission number of the party set out below:
(i) if to the Landlord:
00
0000 - 000xx Xxxxxx
Xxxxxx, X.X. X0X 0X0
Fax No.: 000-000-0000
(ii) if to the Tenant:
Xxxx 000 - 00000, 000 X Xx.
Xxxxxxx, X.X. X0X 0X0
Fax No.: 000-000-0000
or to such other address or facsimile transmission number as a party may specify
by notice given as set out above.
(b) Notice or other communication will be considered to have been received:
(i) if delivered by hand during business hours, upon receipt by a
responsible representative of the receiver, and if not delivered during
business hours, upon the commencement of business on the next business
day;
(ii) if sent by facsimile transmission during business hours, upon the
sender receiving confirmation of the transmission, and if not sent
during business hours, upon the commencement of business on the next
business day; and
(iii) if mailed by prepaid registered post in Canada, upon the fifth
business day following posting, except that, in the case of a
disruption or an impending or threatened disruption in the postal
service, every notice or communication will be delivered by hand or
sent by facsimile transmission
(c) In this Lease, whenever a notice provision refers to "days", it will be
considered to refer to "business days" and "business day" or "business days"
will mean a day or days which arc not a Saturday or defined as a "holiday" under
the Interpretation Act (British Columbia) as amended or substituted from time to
time.
22.7 No Modification. No representations, understands or agreements have been
made or relied upon in the making of this Lease other than those specifically
set out in this Lease. This Lease may only be modified in writing signed by the
party against whom the modification is enforceable
22.8 Successors and Assigns. This Lease binds and benefits the parties and their
respective heirs, executors, administrators, successors and assigns. No rights,
however, benefit an assignee of the Tenant unless under Part 11 the assignment
was consented to by the Landlord.
22.9 Number and Gender. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where the Tenant comprises
more than one entity and to corporations, associations, partnerships, or
individuals, males or females, in all cases will be assumed as though in each
case fully expressed.
22.10 Headings and Captions. The table of contents, part numbers, part headings,
paragraph numbers and paragraph headings are inserted for convenience of
reference only and are not to be considered when interpreting this Lease.
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22.11 Obligations as Covenants. Each obligation of the Landlord or the Tenant in
this Lease, even though not expressed as a covenant, is considered to be a
covenant for all purposes.
22.12 Entire Agreement. This Lease contains all the representations, warranties,
covenants, agreements, conditions and understandings between the Landlord and
the Tenant concerning the Premises or the subject matter of this Lease.
22.13 Time is of the Essence. Time will be of the essence.
22.14 Governing Law. This Lease will be interpreted under and is governed by the
laws of the Province of British Columbia.
PART 23
OPTION TO RENEW
23.1 Conditions. The Tenant shall have the right, if not in default hereunder,
upon giving to the Landlord notice in writing no less than 6 months prior to the
expiry of the Terms to extend the term of the Lease for a further term of two
years upon the same terms and conditions as contained in this Lease, except that
the Basic Rent shall be the then market value rent for comparable space and
shall not be less than the Basic Rent in effect immediately prior to expiry of
the Term, and the Tenant shall have no further option to renew the Lease. The
new Basic Rent rate shall be fixed by mutual agreement. Provided, however, that
if the Landlord and Tenant do not agree in writing to the minimum rental rate
for such extended term on or before the date falling 3 months prior to the date
of the expiry of the Term but for the exercise of this option, then the Basic
Rent for such renewal term may at the instance of either party be determined by
a single arbitrator acting and appointed under the provisions of the Commercial
Arbitration Act (B.C.)
TO EVIDENCE THEIR AGREEMENT each of the parties had executed this Lease on the
date appearing below.
394617 B.C. LTD.
Per:
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Per: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Witness: /s/ Xxxxx XxXxxxxxx
Xxxxx XxXxxxxxx
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SCHEDULE A
Floor Plan Building B [omitted]
SCHEDULE B
Attached hereto and forming part of this Lease between Essential Innovations
(Tenant) and 394617 B.C. Ltd. (Landlord) for 0000 000xx Xxxxxx, Xxxxxx, X.X.
dated June 10, 2002.
BASIC RENT
Year Total Basic Rent Annual Rent Monthly Basic Monthly Basic
Area Leased ($/sq. ft./year) Warehouse Rent Rent
plus G.S.T.
1 18,960 $5.75 $109,020.00 $9,085.00 $9,720.95
2 18,960 $5.85 $110,916.00 $9,243.00 $9,890.01
3 18,960 $5.95 $112,812.00 $9,401.00 $10,059.07
ADDITIONAL RENT
Subject to adjustment as specified within the Lease
1st Floor Additional Rent Annual Monthly Monthly
Warehouse ($/sq. ft./year) Additional Rent Additional Rent Additional Rent
(sq. ft.) Warehouse plus G.S.T.
--------- ---------------- --------------- --------------- ---------------
18,960 $2.00 $37,920.00 $3,160.00 $3,381.20
TOTAL MONTHLY RENT
Year 1 estimated $13,102.15
Year 2 estimated $13,271.21
Year 3 estimated $13,440.27
