XXXXXXX 0.00
XXXXX #000
"2700 PRODUCTION WAY"
BURNABY, B.C.
L E A S E
BETWEEN
PRODUCTION COURT PROPERTY HOLDINGS INC.
by its duly authorized agent,
TONKO REALTY ADVISORS (B.C.) LTD.
LANDLORD
AND
SPECTRUM SIGNAL PROCESSING, INC.
TENANT
INTRODUCTION
INTERPRETATION OF THE LEASE
This lease includes 4 main parts:
1) ARTICLE 1 - Section 1.01 "Basic Terms" which includes the basic terms of
the Lease. Each reference in the Lease to any of the Basic Terms shall be
construed to include the Basic Terms as well as all of the additional
terms and conditions of the applicable Sections of the Lease where such
Basic Terms are more fully set forth.
2) ARTICLE 1 - Section 1.02 "Specific Provisions" which includes certain
provisions that have been specifically negotiated to accommodate this
tenancy by adding to or modifying the standard provisions of the Lease
which are those contained in ARTICLES 2 to 16 (the "Standard Provisions").
In case of discrepancy, the Specific Provisions will prevail over the
Standard Provisions.
3) ARTICLE 1 - Section 1.03 "Definitions" which defines the meaning of
certain capitalized words used in the Lease.
4) ARTICLES 2 to 16 which include the Standard Provisions.
Each part of the Lease must be read in accordance with the above notes.
Landlord's initials: /s/ AA
------
Tenant's initials: /s/ PS
------
INDEX
PAGE NO.
--------
Article 1 Basic Terms, Specific Provisions and Definitions
1.01 Basic Terms 1
1.02 Specific Provisions 2
1.03 Definitions 4
Article 2 Leased Premises and Term
2.01 Leased Premises 7
2.02 Initial Term 7
2.03 Possession 7
2.04 Acceptance of Leased Premises 7
2.05 Security Deposit 7
Article 3 Rent
3.01 Basic Rent 7
3.02 Basis of Determining Basic Rent 7
3.03 Pre-authorized Payments 7
3.04 Waiver of Offset 8
Article 4 Tenant's Covenants
4.01 Rent 8
4.02 Tenant's Taxes 8
4.03 Tenant's Sales Taxes 8
4.04 Utilities 8
4.05 Taxes 8
4.06 Increased Taxes 8
4.07 Reduction of Taxes 8
4.08 Other Costs 8
4.09 Adjustments 9
4.10 Sales Tax Exclusion 9
4.11 Net Lease 9
4.12 Evidence of Payment 9
4.13 Permitted Use 9
4.14 Waste and Nuisance 9
4.15 Insurance Risks 9
4.16 Condition 9
4.17 By-laws 9
4.18 Fire Exit Doors 9
4.19 Rules and Regulations 9
4.20 Overholding 9
4.21 Use and Occupancy Prior to Term 9
4.22 Signs 10
4.23 Inspection and Access 10
4.24 Showing Leased Premises 10
4.25 Access to Building Outside
Normal Business Hours 10
4.26 Name of Building 10
4.27 Use of Common Areas 10
4.28 Operating Name 10
4.29 Covenant to Operate 10
4.30 New Indemnity 10
4.31 Cleaning 10
4.32 Compliance with Environmental Laws 11
4.33 Reports 11
4.34 Audit and Remedial Action 11
4.35 Indemnity 11
4.36 Survival 11
4.37 Parking 11
4.38 Valet Parking System 11
Article 5 Landlord's Covenants
5.01 Quiet Enjoyment 12
5.02 H.V.A.C. 12
5.03 Elevators 12
5.04 Use of Common Areas 12
5.05 Washrooms 12
5.06 Maintenance of Common Areas 12
5.07 Janitor Service 12
Article 6 Repair, Damage and Destruction, Alterations
6.01 Landlord's Repairs 12
6.02 Tenant's Repairs 12
6.03 Abatement and Termination 13
6.04 Landlord's Alterations 13
6.05 Relocation of Leased Premises 14
Article 7 Utilities and Additional Services
7.01 Water and Telephone 14
7.02 Electricity 14
7.03 Additional Services 14
7.04 Alteration 14
Article 8 Licenses, Assignments and Subletting
8.01 Licenses, Etc. 15
8.02 Assignments and Subletting 15
8.03 Change in Control of Tenant 15
Article 9 Fixtures and Improvements
9.01 Installation of Fixtures & Improvements 15
9.02 Liens and Encumbrances 16
9.03 Removal of Fixtures & Improvements 16
Article 10 Insurance and Liability
10.01 Landlord's Insurance 16
10.02 Tenant's Insurance 16
10.03 Limitation of Landlord's Liability 16
10.04 Limitation of Tenant's Liability 17
10.05 Indemnity of Landlord 17
Article 11 Subordination, Attornment, Registration and Certificates
11.01 Sale or Financing of Building 17
11.02 Subordination or Attornment 17
11.03 Registration 17
11.04 Certificates 17
11.05 Assignment by Landlord 17
Article 12 Unavoidable Delays and No Waiver
12.01 Unavoidable Delay 17
12.02 No Waiver 18
Article 13 Remedies of Landlord's and Tenant's Default
13.01 Remedying by Landlord, Non-Payment and Interest 18
13.02 Remedies Cumulative 18
13.03 Right of Re-entry on Default or Termination 18
13.04 Termination and Entry 18
13.05 Payment of Rent, Etc., on Termination 18
13.06 Waiver of Distress 18
13.07 Re-Letting, Etc 19
13.08 Unclaimed Property 19
Article 14 Events Terminating Lease
14.01 Cancellation of Insurance 19
14.02 Bankruptcy, Etc. 19
14.03 Prohibited Occupancy, Etc. 19
Article 15 Miscellaneous
15.01 Notices 19
15.02 Extraneous Agreements 19
15.03 Severability 20
15.04 Time of Essence 20
15.05 Area Determination 20
15.06 Successors and Assigns 20
15.07 Governing Law 20
15.08 Captions 20
Article 16 Renewal and Arbitration
16.01 Renewal 20
16.02 Arbitration 20
SCHEDULES
A Floor Plan 22
B Rules and Regulations 23
THIS LEASE is made the 10th day of June, 2004 and entered into by the Landlord
and Tenant named herein who, in consideration of the rents and covenants herein
contained, covenant and agree as follows:
ARTICLE 1
BASIC TERMS, SPECIFIC PROVISIONS and DEFINITIONS
1.01 BASIC TERMS. The basic terms of this Lease are:
(a) (i) LANDLORD: PRODUCTION COURT PROPERTY HOLDINGS
INC. by its duly authorized agent,
TONKO REALTY ADVISORS (B.C.) LTD.
(ii) ADDRESS OF LANDLORD: 000 - 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Telefax: (000) 000-0000
(b) (i) TENANT (LEGAL NAME): SPECTRUM SIGNAL PROCESSING , INC.
(ii) ADDRESS OF TENANT: 200 - 0000 Xxxxxxxxxx Xxx
Xxxxxxx, X.X.
Telefax: (000) 000-0000
(c) LEASED PREMISES: Xxxxx 000, 0000 Xxxxxxxxxx Xxx,
Xxxxxxx, X.X.
(d) RENTABLE AREA OF LEASED PREMISES: 24,398 square feet, subject to Section
15.05.
(e) INITIAL TERM: Ten (10) years commencing on the
Commencement Date.
(f) COMMENCEMENT DATE: February 1, 2004
(g) BASIC RENT:
Lease Year Per Sq. Ft. Per Annum Per Annum Per Month
---------- --------------------- --------- ---------
1-2 $18.50 $451,363.00 $37,613.58
3-4 $19.50 $475,761.00 $39,646.75
5-6 $20.50 $500,159.00 $41,679.92
7-8 $21.50 $524,557.00 $43,713.08
9-10 $22.50 $548,955.00 $45,746.25
(h) PERMITTED BUSINESS: Wireless Communications Hardware
Systems & Software
(i) OPERATING NAME OF BUSINESS: Spectrum Signal Processing, Inc.
(j) SECURITY DEPOSIT: $0.00
(k) RENEWAL TERM: None
(l) ALLOWED NUMBER OF VEHICLE(S): Seventy-three (73) random parking
stalls in the Building parkade at the
rates described in Section 1.01(m).
The Tenant shall be entitled to use
any available additional parking
stalls on a month-to-month basis at a
rate of $25.00 per month per stall for
the first year of the Term and
thereafter at prevailing market rates
(m) PARKING RATES:
Lease Year Per Month and Per Vehicle
---------- -------------------------
1-10 $0.00
The Landlord and Tenant agree to the foregoing basic terms. Each reference in
this Lease to any of the Basic Terms shall be construed to include the
provisions set forth above as well as all of the additional terms and conditions
of the applicable Sections of this Lease where such Basic Terms are more fully
set forth.
-1-
1.02 SPECIFIC PROVISIONS. The following provisions (the "Specific Provisions")
have been agreed upon by the Tenant and the Landlord to add to or modify the
standard provisions of the Lease which are those contained in ARTICLES 2 to 16
of this Lease (the "Standard Provisions"). In case of discrepancy, the Specific
Provisions will prevail over the Standard Provisions.
(A) CONTRACTORS. The Landlord warrants that any contractors employed by the
Landlord to perform any work within the Tenant's Leased Premises shall be
bonded.
(B) BACK UP POWER. In the event of a power outage affecting the Leased
Premises, the Tenant shall, subject to the terms of this provision, be
entitled to the use, in common with other tenants, the back up generator
located in the Building (the "Back Up Generator") for the term of the
Lease and any extension of term thereafter. The Tenant acknowledges that
the Landlord has entered into an ongoing maintenance contract with respect
to the Back Up Generator and that the Landlord shall be responsible for
the regular ongoing maintenance provided that all costs of such
maintenance including any repairs and replacements of the Back Up
Generator or any part thereof from time to time shall be charged by the
Landlord to the Tenant as part of Operating Costs. Prior to being entitled
to make use of the Back Up Generator, the Tenant shall, at its sole cost,
install such harmonic filters and other equipment as the Landlord may
reasonably require for the effective use of the Back Up Generator. In the
event of power failure, the Tenant shall only be entitled to use a portion
of the Back Up Generator's capacity equal to its Proportionate Share of
such capacity. The Tenant shall indemnify and hold harmless the Landlord
for any and all costs, expenses, claims or charges of any nature or kind
arising from the Tenant's use of the Back Up Generator. It is understood
and agreed between the parties that should the Tenant's usage exceed its
Proportionate Share of the total capacity of the Back Up Generator, the
Landlord shall be entitled to require the Tenant to install its own
additional back up generator at the Tenant's sole cost provided always
that the terms of such installation shall meet the reasonable requirements
of the Landlord in terms of its location, the work to be performed, the
parties performing such work and all other aspects relating to such
installation. Without restricting the generality of the foregoing, the
Tenant shall indemnify and save the Landlord harmless from any and all
damage to the Building arising from such installation and shall make good
and repair such damage. On expiry of the Term, the Tenant shall remove
such additional back up generator at its sole cost and repair any and all
damage in any way arising from such removal. The Landlord shall be
entitled to require that any additional back up generator meet with its
reasonable requirements and the Tenant shall ensure that such additional
back up generator does not in any way interfere with the existing Back Up
Generator or disturb the use of the Building by any other tenant.
(C) "LEASEHOLD IMPROVEMENTS" IN SECTION 1.03 DEFINITIONS is amended by adding
after "trade fixtures" in line 3 "and the Tenant's air-conditioning unit
located in its server room".
(D) "NORMAL BUSINESS HOURS" IN SECTION 1.03 DEFINITIONS is amended by adding
at the end thereof the following:
Notwithstanding the Normal Business Hours of the Building, the Tenant
shall be permitted to operate from 7:00 a.m. to 7:00 p.m. Monday to
Friday, inclusive, and from 10:00 a.m. to 4:00 p.m. on Saturday and
Sunday, of each week. It is agreed that the Tenant will not be charged for
H.V.A.C. provided to the Leased Premises during such additional hours.
(E) "OPERATING COSTS" IN SECTION 1.03 DEFINITIONS is amended by deleting "and
severance payments" from the 7th line of paragraph (a).
(F) PARAGRAPH (b) OF SECTION 3.01 BASIC RENT is hereby deleted in its
entirety.
(G) SECTION 4.09 ADJUSTMENTS is amended by adding at the end thereof the
following:
Upon Tenant's reasonable request, the Landlord shall provide reasonable
documentation to support the amount of the Operating Costs and Taxes
claimed by the Landlord.
(H) SECTION 4.22 SIGNS is amended by adding after "name" in paragraph (b) "and
logo".
(I) The 1st sentence of SECTION 4.23 INSPECTION AND ACCESS is amended as
follows:
To permit the Landlord and persons authorized by the Landlord, upon
reasonable notice to the Tenant and subject to compliance with the
Controlled Goods Program of Canada ("CGP"), to enter the Leased Premises
for the purpose of inspection, testing, maintenance, providing janitor
service and window cleaning, making repairs, alterations or improvements
to the Leased Premises or the Building, or to have access to utilities and
services (including electrical and mechanical rooms and access panels,
which the Tenant agrees not to obstruct) or to determine the electric
light and power consumption by the Tenant in the Leased Premises.
(J) SECTION 4.24 SHOWING LEASED PREMISES is amended as follows:
To permit the Landlord and its authorized agents and employees to show the
Leased Premises to prospective purchasers and lenders, upon reasonable
notice to the Tenant and subject to compliance with the CGP, and to
prospective tenants during Normal Business Hours of the last six months of
any lease term and whenever the Tenant is in arrears of rent for more than
45 days in an amount equal to or in excess of one month Basic Rent.
(K) The first and last sentences of the first paragraph of SECTION 4.37
PARKING are amended as follows:
The Landlord may designate certain parking spaces as visitors' parking
spaces and other parking spaces for the exclusive use of British Columbia
Assessment Authority during its tenancy in the Building.
-2-
Overnight parking in the Parking Areas is prohibited; however, the Tenant
shall be permitted to park overnight in the Parking Areas on particular
occasions upon two (2) business days' prior notice to the Landlord.
(L) PARAGRAPH (b) OF SECTION 6.02 TENANT'S REPAIRS is amended as follows:
(b) that the Landlord may enter and view the state of repair, upon
reasonable notice to the tenant and subject to compliance with the
CGP, and that the Tenant will repair according to notice in writing,
and that the Tenant will leave the Leased Premises in a good and
reasonable state of repair, subject always to the exceptions
referred to in Section 6.02(a);
(M) The first line of SECTION 6.04 LANDLORD'S ALTERATIONS is amended as
follows:
The Landlord reserves the right to undertake and complete at any time,
upon reasonable notice to the Tenant and subject to compliance with the
CGP:
(N) SECTION 6.05 RELOCATION OF LEASED PREMISES is hereby deleted and replaced
with the following:
6.05 RELOCATION OR CONSOLIDATION OF TENANT'S OPERATIONS. Notwithstanding
any other provision of this Lease to the contrary, the Tenant shall be
allowed to occupy and have access to the entire 2nd and 3rd floor premises
and the 1st floor reception area of the Building, until such time as the
Landlord exercises its one-time right to either: a) consolidate the
operations of the Tenant within the Leased Premises; or b) relocate the
Tenant to other premises with a similar Rentable Area and similar
improvements (the "New Premises") in the Building in substitution of the
Leased Premises. Upon written notice (the "Notice to Consolidate or
Relocate") from the Landlord to the Tenant, the Tenant shall take all
reasonable steps necessary to consolidate within the Leased Premises or
relocate to the New Premises, as the case may be, within ninety (90) days
of the date of the Notice to Consolidate or Relocate. If the Landlord
exercises its right described herein prior to July 1, 2005, the Landlord
and Tenant shall equally share the Tenant's reasonable moving costs. If
the Landlord exercises its right described herein on or after July 1,
2005, the Tenant shall be responsible for its own moving costs.
The parties acknowledge and agree that the stairwell between the 2nd and
3rd floors of the Building (the "Stairwell") shall remain open until such
time as the Landlord desires to close it at the Landlord's cost.
Notwithstanding anything to the contrary herein contained, if the notice
from the Landlord is to consolidate the operations of the Tenant within
the Leased Premises, the Tenant shall have not less than thirty (30) days
after the Landlord completes its works to close the Stairwell, during
which the Tenant may build out the area on the 3rd floor above the then
closed-off Stairwell, prior to completing its consolidation within the
Leased Premises.
(O) SECTION 8.02 ASSIGNMENTS AND SUBLETTING is amended as follows:
8.02 ASSIGNMENTS AND SUBLETTING. The Tenant shall not assign, mortgage or
otherwise encumber or transfer this Lease or sublet the Leased Premises or
any part thereof without having obtained the Landlord's prior written
consent, not to be unreasonably withheld. The Landlord may withhold its
consent to a proposed assignment of this Lease or sublease of the Leased
Premises or any part thereof, but only after reasonable due diligence is
conducted on the proposed assignee or sublessee in accordance with the
procedure outlined below in this section. The Landlord covenants not to
withhold its consent unreasonably as to any assignee or sublessee who is
in satisfactory financial condition, agrees to use the Leased Premises for
the purposes and in the manner permitted and specified hereunder, and is
otherwise satisfactory to the Landlord. No partial assignment shall be
permitted.
The Tenant shall not assign this Lease or sublet the Leased Premises or
any part thereof unless:
a) it shall have received or procured a bona fide written offer
to take an assignment or sublease which is not inconsistent
with this Lease, and the acceptance of which would not breach
any provision of this Lease; and
b) it shall have first requested and obtained the consent in
writing of the Landlord thereto, such consent not to be
unreasonably withheld.
DUE DILIGENCE: Any request for consent shall be in writing and accompanied
by a true copy of the offer, all information available to the Tenant and
requested by the Landlord as to the responsibility, financial standing and
business of the proposed assignee or subtenant and payment of such amount
as the Landlord reasonably requires to reimburse it for its time and
expense in considering the request for consent. Notwithstanding the
provisions of subsection (a), within 10 days after the receipt by the
Landlord of such request for consent and of all information which the
Landlord shall have requested hereunder, the Landlord shall have the right
upon written notice of termination submitted to the Tenant, if the request
is to assign this Lease or sublet the Leased Premises, to cancel and
terminate this Lease as of a termination date to be stipulated in the
notice of termination which shall be not less than 60 days or more than 90
days following the giving of such notice. In such event the Tenant shall
surrender the Leased Premises in accordance with such notice of
termination and rent and additional rent shall be apportioned and paid to
the date of surrender. If such consent shall be given, the Tenant shall
assign or sublet, as the case may be, only upon the terms set out in the
offer submitted to the Landlord. No assignment or subletting of this Lease
shall be effective unless the assignee or sublessee shall execute an
assumption agreement on the Landlord's form, prepared at the expense of
the Tenant, assuming all the obligations of the Tenant hereunder. The
Tenant agrees that any consent to an assignment or subletting of this
Lease or Leased Premises may not thereby release the Tenant of its
obligations hereunder. The consent by the Landlord to an assignment or
subletting, if granted, may not constitute a waiver of the necessity for
the Tenant to obtain the prior written consent of the Landlord to a
subsequent assignment or subletting.
-3-
Without limitation, the Tenant shall for the purpose of this Lease be
considered to assign or sublet in any case where it permits the Leased
Premises or any portion thereof to be, or the Leased Premises or any
portion thereof are, occupied by persons other than the Tenant, its
employees and others engaged in carrying on the business of the Tenant,
whether pursuant to assignment, subletting, parting with or sharing
possession, license or other right, or where any of the foregoing occurs
by operation of law.
(P) The 2nd sentence of SECTION 8.03 CHANGE IN CONTROL OF TENANT is amended by
adding "not to be unreasonably withheld" after "prior written consent of
the Landlord".
(Q) SECTION 9.03 is amended as follows:
9.03 REMOVAL OF FIXTURES AND IMPROVEMENTS. Except to the extent otherwise
expressly agreed by the Landlord in writing, no Leasehold Improvements,
trade fixtures, furniture or equipment shall be removed by the Tenant from
the Leased Premises either during or at the expiration or sooner
termination of the Term except that (1) the Tenant may at the end of the
Term or upon Notice to Consolidate or Relocate remove its trade fixtures,
(2) the Tenant shall at the end of the Term or upon Notice to Consolidate
or Relocate remove such of its Leasehold Improvements and trade fixtures
as the Landlord shall require to be removed, and (3) the Tenant may remove
its furniture and equipment and its air-conditioning unit located in its
server room at the end of the Term or upon Notice to Consolidate or
Relocate, and also during the Term in the usual and normal course of its
business where such furniture or equipment has become excess for the
Tenant's purposes or the Tenant is substituting therefor new furniture and
equipment. The Tenant shall, in the case of every removal either during or
at the end of the Term, make good any damage caused to the Leased Premises
or the Building by the installation and removal.
(R) PARAGRAPH (c) OF SECTION 10.02 TENANT'S INSURANCE is hereby deleted in its
entirety.
(S) SECTION 13.03 RIGHT OF RE-ENTRY ON DEFAULT OR TERMINATION is amended by
adding at the end thereof the following:
Any entry by the Landlord into the Leased Premises shall be subject to
compliance with the CGP on the condition that the Tenant provides, at all
reasonable times, an authorized representative to accompany the Landlord
in its entry of the Leased Premises to ensure that the CGP is not
contravened.
(T) SECTION 13.04 TERMINATION AND ENTRY is amended by adding at the end
thereof the following:
Any entry by the Landlord into the Leased Premises shall be subject to
compliance with the CGP on the condition that the Tenant provides, at all
reasonable times, an authorized representative to accompany the Landlord
in its entry of the Leased Premises to ensure that the CGP is not
contravened.
(U) SECTION 14.03 PROHIBITED OCCUPANCY, ETC. is amended as follows:
In case, without the written consent of the Landlord, the Leased Premises
shall be used by any persons other than the Tenant or its permitted
assigns or subtenants or for any purpose other than that for which they
were leased, or occupied by any persons whose occupancy is prohibited by
this Lease, or if the Leased Premises shall be vacated or abandoned, or
remain unoccupied for 15 days or more while capable of being occupied, or
if any of the goods and chattels of the Tenant shall at any time be seized
in execution or attachment, or if the Tenant shall make any bulk sale to
avoid payments to creditors, or (if a corporation) shall take any steps or
suffer any order to be made for its winding-up or other similar
termination of its corporate existence, then in any such case the Landlord
may at its option terminate this Lease and thereupon, in addition to the
payment by the Tenant of rent and other payments for which the Tenant is
liable under this Lease (if the Landlord has not elected to claim damages
for losing the benefit of the Lease over its unexpired term), rent for the
current month and the next ensuing three months' rent shall immediately
become due and be paid by the Tenant.
(V) ARTICLE 16 RENEWAL AND ARBITRATION is hereby deleted in its entirety.
(W) TENANT'S BIKE STORAGE. The Landlord agrees that the Tenant's bike storage
space, as it exists at the Commencement Date on Level P5 of the Building
parkade, shall remain the exclusive use of the Tenant.
1.03 DEFINITIONS. In this Lease:
"ACCOUNTING YEAR" means each 12-month period commencing January 1 and ending
December 31, the whole or part of which period is within the term or any renewal
hereof.
"ADDITIONAL SERVICES" means the services supplied by the Landlord and referred
to in Section 7.03 or in any other provision hereof as Additional Services, and
any other services which from time to time the Landlord supplies to the Tenant
and which are in addition to the services which the Landlord has agreed to
supply pursuant to the provisions of this Lease and to like provisions of other
leases of the Building and may include janitor and cleaning services in addition
to those normally supplied, locksmithing, removal of bulk garbage, picture
hanging, special security arrangements, the provision of labour and supervision
in connection with bulk deliveries, supervision in connection with the moving of
any furniture or equipment and the making of any repairs or alterations and
maintenance or other services not normally furnished to tenants generally.
"BUILDING" means that certain office building and other improvements located on
the Land and all additions and replacements thereto.
"COMMON AREAS" means all areas of the Building and the Land except the Leased
Premises and all the other premises leased or leasable to other tenants.
-4-
"COST OF ADDITIONAL SERVICES" means the Landlord's total cost of providing
Additional Services to the Tenant including all amounts paid to independent
contractors plus all expenses incurred directly by the Landlord including the
cost of labour and materials.
"HAZARDOUS SUBSTANCES" means those substances which now or at any time during
the Term, are a threat or capable of posing a threat to the public health or the
environment or which are regulated for such reasons under any laws, regulations,
requirements or guidelines of the Province of British Columbia, the Government
of Canada or any municipal government;
"INITIAL TERM" means the term of this Lease set forth in Section 1.01 (e).
"INSURED DAMAGE" means that part of any damage occurring to the Leased Premises
of which the entire cost of repair (or the entire cost of repair other than a
deductible amount collectable by the Landlord as part of the Operating Costs) is
actually recoverable by the Landlord under a policy of insurance in respect of
fire and other perils from time to time effected by the Landlord. Where an
applicable policy of insurance contains an exclusion for damages recoverable
from a third party, claims as to which the exclusion applies shall be considered
to constitute Insured Damage only if the Landlord successfully recovers from the
third party.
"LAND" means certain parcel(s) of land, situated in Burnaby, British Columbia,
legally described as:
Parcel Identifier: 000-000-000, Lot A (BL209640) Except part in Plan LMP38012,
District Xxx 00, Xxxxx 0, Xxx Xxxxxxxxxxx Xxxxxxxx, Xxxx LMP1598
"LEASED PREMISES" means that portion of the Building shown in heavy outline on
the Plan attached as Schedule "A" hereto. The exterior face of the Building and
any space in the Leased Premises used for stairways or passageways to other
premises, stacks, shafts, pipes, conduits, ducts or other Building facilities,
and heating, electrical, plumbing, air conditioning and other systems serving
the Building or parts thereof are expressly excluded from the Leased Premises.
"LEASEHOLD IMPROVEMENTS" means all fixtures, improvements, installations,
alterations and additions from time to time made, erected or installed in the
Leased Premises by the Tenant or by the Landlord on behalf of the Tenant, or by
other tenants, with the exception of trade fixtures and furniture and equipment
not of the nature of a fixture, but shall include all partitions however
affixed, doors, hardware, mechanical, electrical and utility installations,
plumbing fixtures, closets, built-in cabinets, counters and millwork, floorings,
including carpeting, and window coverings.
"NORMAL BUSINESS HOURS" means the hours from 8:00 a.m. to 5:00 p.m. Monday to
Friday, inclusive, of each week, holidays excepted, or any such extended periods
of hours and days as the Landlord, acting reasonably, may designate from time to
time. The Landlord may, at its option, designate from time to time different
business hours for retail tenants and, when reasonably required, for other
tenants.
"OPERATING COSTS" means the total of all costs and expenses, calculated in
accordance with generally accepted accounting principles, without duplication,
incurred in the complete maintenance, operation, repair and replacement of the
Building and the Land. If in any given period of time less than 100% of the
Building is occupied by tenants and the Landlord obtains a reduction in cost or
a credit as a result of the Building being less than 100% occupied, the amount
of such cost reduction or credit shall be allocated to the Landlord with the
intent that the Tenant will be in substantially the same position as if the
Building had been 100% occupied.
Operating Costs (without limiting the generality of the foregoing):
(a) shall include (but subject to certain deductions as hereinafter provided)
the cost of providing cleaning, and janitorial services, the cost of sweeping,
restriping, repairing and replacing parking areas, the cost of maintaining and
replanting plants and landscaping, the cost of operating elevators, the cost of
heating, cooling and/or ventilating rentable and non-rentable areas, the cost of
providing water, electricity (including lighting), and other utilities and
services to the Building and the Land, the cost of supervisory and maintenance
services, the cost of all repairs and replacements to the Building or other
improvements on the Land, the cost of window cleaning, the cost of security and
supervision, the cost of all insurance taken out by the Landlord, accounting and
auditing costs, the amount of all salaries, wages, fringe benefits and severance
payments paid for, or for the benefit of, or on account of, employees engaged in
the maintenance, operation, repair, inspection, remediation or replacement of
the Building and the Land, amounts paid to independent contractors in connection
with such maintenance, operation, repair , inspection or remediation or
replacement, the cost of direct supervision and of management and other indirect
expenses to the extent allocable to the maintenance, operation, repair ,
inspection, remediation or replacement of the Building and the Land, the cost of
leasing or purchasing any signs or public address, intercom, background music
apparatus, alarm and security access system or centralized communication cables
or centralized systems, that the Landlord may add and maintain, from time to
time, to and in the Building and the costs of operating, maintaining, repairing
or replacing same, the cost to the Landlord of making a capital improvement
resulting in the reduction of the Operating Costs provided the annual
amortization of such costs of making capital improvements does not exceed the
corresponding reduction of Operating Costs, provincial capital taxes allocated
by the Landlord to the Building and the Land and calculated as if the Building
and the Land were the only asset of the Landlord, all business taxes and other
taxes, if any, from time to time payable by the Landlord with respect to the
Common Areas, depreciation or amortization as determined by the Landlord of the
costs, including repair and replacement, incurred after the original completion
of construction of the Building for repairing or replacing all fixtures,
equipment and facilities serving the Building or the Common Areas which by their
nature require periodic repair or replacement (including, without limitation,
the heating, ventilating and air conditioning systems serving the Building)
unless such costs are charged fully in the Accounting Year in which they are
incurred, interest calculated at 7%, calculated annually for each Accounting
Year upon the undepreciated or unamortized portion of the costs referred to
immediately above, the cost of any management fees or, at the Landlord's option
from time to time, an administration fee to the Landlord equal to the lesser of
5% of the gross rental income of the Building and the prevailing management fee
that would be charged to manage a comparable building in Burnaby by an
independent professional property management firm, and all other expenses of
every nature incurred in connection with the maintenance, operation, repair,
inspection, remediation or replacement of the Building and the Land;
-5-
(b) shall exclude taxes, debt service, depreciation, costs of repairing
structural defects in the Building and the cost of acquiring new tenants for the
Building; and
(c) shall exclude the cost of providing to all the leased and/or leasable
premises of the Building those services which the Tenant has agreed to pay for
or provide directly for the Leased Premises and the cost of supplying to all the
leased and/or leasable premises of the Building those utilities which, in the
Leased Premises, are metered and paid for directly by the Tenant; all as
detailed in Schedule "D" attached hereto (if applicable).
In computing Operating Costs there shall be credited as a deduction the amounts
of proceeds of insurance relating to Insured Damage and other damage actually
recovered by the Landlord applicable to such damage to the extent that the cost
thereof was included therein. Any expenses not directly incurred by the Landlord
but which are included in Operating Costs may be reasonably estimated by the
Landlord if the Landlord cannot ascertain the actual amount of such expenses
from the persons who incurred them. If less than all of the Rentable Area of the
Building is occupied during any period for which a computation must be made, any
expenses which are related to the level of occupancy will be increased to be
equal to the amount of such expenses that would have been incurred had the
entire Rentable Area of the Building been occupied, to ensure that the Landlord
recovers the full amount of such expenses relating to occupancy from those
tenants benefiting therefrom.
"PARKING AREAS" has the meaning defined in Section 4.37.
"PRIME RATE" means the rate of interest charged and published from time to time
by the main branch in Vancouver, British Columbia of the Landlord's bank as a
reference rate for setting interest rates on commercial loans in Canadian
dollars and referred to by such bank as its "prime rate".
"PROPORTIONATE SHARE" means the proportion which the Rentable Area of the Leased
Premises bears to the Total Rentable Area of the Building.
"RENTABLE AREA" in the case of a whole floor of the Building means the area
expressed in square feet as certified by the Landlord's architect, engineer or
surveyor of all areas of the floor and mezzanine (if any) measured from the
inside surface of the window glass of the outer Building walls where the glass
comprises 50% or more of the wall measured vertically and from the inside
surface of the outer building wall where the glass portion of the outer building
wall comprises less than 50% of the wall measured vertically, without deduction
for columns, wall projections, internal stairs or elevators connecting two or
more floors rented by the same tenant or for any other interior construction or
equipment or for any doorway areas recessed from the perimeter of the area and
shall include a portion of the Service Areas located on other floors that serve
the floor as determined by the Landlord, acting reasonably, but shall not
include stair shafts and elevator shafts supplied by the Landlord for use in
common with other tenants.
"RENTABLE AREA" in the case of part of a floor of the Building means the area
expressed in square feet as certified by the Landlord's architect, engineer or
surveyor of all the area occupied by the Leased Premises including any mezzanine
forming part of the Leased Premises, measured from the inside surface of the
window glass of the outer Building walls, where the glass comprises 50% or more
of the wall measured vertically, and from the inside surface of the outer
building wall where the glass portion of the outer building wall comprises less
than 50% of the wall measured vertically, without deduction for columns and
projections between the windows, to the centre line of all interior walls
separating the Leased Premises from adjoining Service Areas and/or other
rentable premises, all without deduction or exclusion for columns, wall
projections, internal stairs or elevators connecting two or more floors rented
by the same tenant, or for any other interior construction or equipment or for
any doorway areas recessed from the lease line designated by the Landlord plus a
portion of the Service Areas, wherever located, serving the floor which includes
the Leased Premises as determined by the Landlord, acting reasonably.
"SALES TAXES" means all goods and services taxes, sales taxes, value added taxes
or any other similar taxes imposed on the Tenant or the Landlord, by any level
of government, with respect to rent, additional rent or any other amounts
payable by the Tenant to the Landlord under this Lease, whether characterized as
a goods and services tax, sales tax, value added tax or otherwise.
"SERVICE AREAS" means the areas of the Building that provide services to tenants
but which are not included in the area of leased premises of a tenant, including
without limitation, main and auxiliary lobbies and elevator lobbies, atrium
spaces at the level of the finished floor, concierge areas or security desks,
conference rooms, lounges or vending areas, food service facilities, health or
fitness centres, day-care facilities, locker or shower facilities, mail rooms,
fire control rooms, fully enclosed courtyards outside the exterior walls,
building core and service areas such as enclosed mechanical or equipment rooms,
corridors, washrooms, air-cooling rooms, fan rooms, janitor's closets, telephone
and electrical closets and other closets serving the Leased Premises and other
leased or leasable premises, whether such Service Areas are located on the floor
on which the Leased Premises are located or elsewhere in the Building or on the
Land
"TAXES" means all taxes, rates, duties, levies and assessments whatsoever,
whether municipal or otherwise, levied, imposed or assessed against the Building
and the Land or upon the Landlord in respect thereof or from time to time
levied, imposed or assessed in the future in lieu thereof, including those
levied, imposed or assessed for education, schools and local improvements, and
including all costs and expenses incurred by the Landlord in good faith in
appealing any taxes, rates, duties, levies or assessments, but excluding taxes
and license fees in respect of any business carried on by tenants and occupants
of the Building (including the Landlord) and income or profits taxes upon the
income of the Landlord to the extent such taxes are not levied in lieu of taxes,
rates, duties, levies and assessments against the Building or the Land and shall
also include any and all taxes which may in future be levied in lieu of taxes as
hereinbefore defined.
"TERM" means the Initial Term and any extension or renewal thereof and any
period of permitted overholding.
"TOTAL RENTABLE AREA" means the total Rentable Area of the Building.
"UTILITIES" means electricity, oil, gas, power, telephone, water, and all other
utilities.
"VALET PARKING SYSTEM" has the meaning defined in Section 4.38.
-6-
STANDARD PROVISIONS
ARTICLE 2
LEASED PREMISES AND TERM
2.01 LEASED PREMISES. In consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord leases to the Tenant the Leased Premises
specified in Section 1.01(c).
2.02 INITIAL TERM. The Initial Term of the Lease is the period set out in
Section 1.01 (e) and the Initial Term commences on the Commencement Date set out
in Section 1.01 (f).
2.03 POSSESSION. If the Landlord is unable to deliver possession of the Leased
Premises to the Tenant at the commencement of the Initial Term, the Landlord
shall not be liable for damages or loss caused thereby, nor shall this Lease be
void or voidable, nor shall the commencement or the expiration date of the
Initial Term be changed. In such event the Tenant shall only be liable for the
rent, at the rate hereby reserved, once the Landlord is able to deliver
possession of the Leased Premises to the Tenant.
2.04 ACCEPTANCE OF LEASED PREMISES. Taking possession of all or any portion of
the Leased Premises by the Tenant shall be conclusive evidence as against the
Tenant that the Leased Premises or such portion thereof are in satisfactory
condition on the date of taking possession.
2.05 SECURITY DEPOSIT. The Landlord acknowledges receipt of the amount set out
in 1.01 (j) to be held by the Landlord as a deposit as security for the payment
of rent and performance of the Tenant's obligations under this Lease. If at any
time rent or any other amount payable by the Tenant is overdue and unpaid or the
Tenant fails to perform any of its obligations under this Lease, the Landlord
may, either before or after terminating this Lease, apply the whole or any part
of the deposit to the payment of such rent or other amount or to compensate the
Landlord for any loss or expense incurred by the Landlord and such application
will be without prejudice to the Landlord's right to pursue any other remedy set
forth in this Lease. If the whole or any part of the deposit is applied by the
Landlord, the Tenant shall forthwith pay to the Landlord a sufficient amount to
restore the deposit to the amount specified in Section 1.01 (j) and the Tenant's
failure to do so within ten days after demand will constitute a breach of this
Lease. If the Tenant promptly pays all rent as it falls due and performs all of
its obligations under this Lease, the Landlord will repay the deposit to the
Tenant within 30 days after the later of: (i) termination of this Lease; or (ii)
the repossession of the Leased Premises by the Landlord. The Landlord may
deliver and assign the security deposit to any purchaser of the Landlord's
interest in the Leased Premises and thereupon the Landlord will be discharged
from any further liability with respect to such deposit.
ARTICLE 3
RENT
3.01 BASIC RENT. The Tenant will pay to the Landlord, at such place as the
Landlord directs in writing, during the Initial Term in lawful money of Canada,
without any set off, abatement, compensation, or deduction whatsoever, the Basic
Rent:
a) for each Lease Year set out in Section 1.01(g), in the amounts per square
foot per annum set out in such section multiplied by the Rentable Area of
the Leased Premises payable by equal consecutive monthly installments; and
b) for the remainder of the Initial Term (if any), in the amount per square
foot equal to the prevailing rate per annum in the open market being
charged for the best use of similar premises, with equivalent leasehold
improvements, in comparable office/retail buildings in Burnaby, without
deduction for any signing bonus, improvement allowance, rent free period
or other inducement payment commonly received by tenants in the then
current market circumstances (the "Prevailing Market Rate"), multiplied by
the Rentable Area of the Leased Premises payable by equal consecutive
monthly installments. The determination of the Prevailing Market Rate
shall be made jointly by the Landlord and the Tenant at least three months
prior to the first day of the remainder of the Initial Term, failing which
it shall be referred to a single arbitrator pursuant to the provisions of
the Commercial Arbitration Act of British Columbia. In determining the
Prevailing Market Rate, the arbitrator shall comply with the
above-described criteria. The determination made by the arbitrator shall
be final and binding upon the Landlord and the Tenant, and their
respective successors and assigns. Each party shall pay one-half of the
fees and expenses of the arbitrator. The provisions of this Section shall
be determined to be a submission to arbitration within the provisions of
the Commercial Arbitration Act, as amended from time to time. In no event
shall the annual Basic Rent for the period referred to in Section 3.01(b)
be less than the annual Basic Rent for the last Lease Year of the period
specified in Section 3.01(a). Until the Basic Rent has been determined for
the period (if any) referred to in this Section 3.01(b) as herein
provided, the Tenant shall continue to pay the monthly instalment of Basic
Rent payable before the commencement of such period and upon such
determination the Landlord and the Tenant shall make the appropriate
readjustments.
The Tenant shall pay each monthly instalment in advance on or before the first
day of each and every calendar month during the Term, and pay the first
instalment on or before the day of commencement of the Initial Term. If the
Initial Term commences on a day other than the first, or ends on a day other
than the last day of a month, the Basic Rent for the fraction of a month shall
be calculated at a rate per day equal to 1/365th of the annual Basic Rent.
3.02 BASIS OF DETERMINING BASIC RENT. The annual Basic Rent set out in Section
3.01(a) is calculated on the basis of the Rentable Area of the Leased Premises
being approximately the number of square feet set out in Section 1.01 (d) at the
rates for each square foot of Rentable Area set out in Section 1.01(g). The
annual Basic Rent shall be adjusted in the event that the Rentable Area of the
Leased Premises is found to be different than the Rentable Area stated in
Section 1.01 (d) above.
3.03 PRE-AUTHORIZED PAYMENTS. The Tenant shall provide to the Landlord on or
before the commencement of the Initial Term, without prejudice to any other
right or remedy of the Landlord, an executed authorization and a voided cheque
to enable the Landlord to draw or issue a debit to the Tenant's designated bank
account at the designated branch of the Tenant's bank or financial institution.
Each monthly debit shall be in an amount equal to the total monthly payment due
under the Lease for Basic
-7-
Rent, Operating Costs and Taxes and under any ancillary agreement such as,
without limitation, Parking Agreement and Locker Agreement (the "Monthly Rent"),
as it may be adjusted from time to time in accordance with the terms of this
Lease. The Tenant shall not terminate the authorization for the Landlord to draw
or issue a debit to the Tenant's bank account. Should the Tenant change banks or
financial institutions or branches within the same bank or financial institution
during the Term of this Lease, then the Tenant shall deliver a new executed
authorization and voided cheque to enable the Landlord to draw or issue a debit
to the new account of the Tenant for payment of Monthly Rent. The Tenant further
covenants and agrees to pay promptly, when billed, any amounts due under the
terms of this Lease which are not specifically covered by the foregoing monthly
debits.
In the event that any debit issued by the Landlord and any cheque issued by the
Tenant shall not be honoured by the Tenant's bank or financial institution for
any reason, then, in addition to any other remedies the Landlord may have, the
Tenant shall pay to the Landlord, upon request, Fifty Dollars ($50.00) for each
occurrence which amount represents the estimated cost of processing the
dishonoured debit or cheque and re-debiting the Tenant's account or processing a
replacement cheque.
3.04 WAIVER OF OFFSET. The Tenant hereby waives and renounces any and all
existing and future claims, offsets and compensation against any rent and agrees
to pay rent, without deduction, regardless of any claim, offset or compensation
which may be asserted by the Tenant or on its behalf.
ARTICLE 4
TENANT'S COVENANTS
4.00 TENANT'S COVENANTS. The Tenant covenants with the Landlord as follows:
4.01 RENT. To pay rent on the days and in the manner provided.
4.02 TENANT'S TAXES. To pay when due all business taxes, license fees and other
taxes and charges levied or assessed in respect of the use or occupancy of the
Leased Premises by the Tenant or in respect of the equipment, machinery or
fixtures, partitions and improvements brought therein by the Tenant or on behalf
of the Tenant, or anyone occupying the Leased Premises with the Tenant's
consent, whether existing at the date hereof or hereinafter imposed by any
governmental authority, including, without limitation, value added tax, business
transfer tax, retail sales tax, federal sales tax, goods and services tax,
excise taxes or duties, or any tax similar to any of the foregoing, including
penalties for late payment thereof, whether payable by the Tenant or the
Landlord.
4.03 TENANT'S SALES TAXES. To pay the Landlord all Sales Taxes imposed on the
Tenant or the Landlord by any level of government with respect to rent,
additional rent or any other amounts payable by the Tenant to the Landlord under
this Lease, it being the intention of the parties that the Landlord shall be
fully reimbursed by the Tenant with respect to any and all Sales Taxes payable
or collectable by the Landlord. The amount of such Sales Taxes so payable by the
Tenant shall be calculated in accordance with the applicable legislation and
shall be paid to the Landlord at the same time as the amounts to which such
Sales Taxes apply are payable to the Landlord under the terms of this Lease or
earlier if required by the applicable legislation. Notwithstanding any other
provision in this Lease to the contrary, the Sales Taxes payable by the Tenant
under this paragraph shall be deemed not to be rent or additional rent, but the
Landlord shall have all remedies for and rights of recovery of such Sales Taxes
as it has for recovery of rent under this Lease.
4.04 UTILITIES. To pay (without duplication of any payment made on account of
Operating Costs) all rates and charges for all Utilities and other services
supplied to or used on the Leased Premises or reasonably attributable to the
Tenant or the Tenant's occupation of the Leased Premises and if such rates and
charges shall be billed or assessed against the Landlord, the Tenant shall pay
such rates and charges to the Landlord upon demand by the Landlord.
4.05 TAXES. To pay as additional rent to the Landlord the Tenant's
Proportionate Share of any Taxes within ten (10) days of receipt of notice from
the Landlord, provided however that the Landlord may estimate in advance at the
beginning of each and any Accounting Year of the Term or portion thereof, the
annual amount of the Tenant's Proportionate Share of Taxes and request that the
Tenant pay and the Tenant shall pay as additional rent 1/12th of such estimated
sum monthly in advance concurrently with the payments of Basic Rent pursuant to
Article 3 of this Lease. As soon as the actual amount of the Taxes for the
Accounting Year becomes known to the Landlord and if the said amount exceeds or
is less than the amount estimated by the Landlord by 10% or more, the Landlord
shall inform the Tenant and the parties shall make all necessary corrective
adjustments immediately. If the difference between the actual amount and the
estimated amount of Taxes is less than 10%, the Tenant's Proportionate Share of
Taxes shall be adjusted according to Section 4.09.
4.06 INCREASED TAXES. If any Taxes shall be increased by reason of any
installation made in or upon or any alteration or improvement made in or to the
Leased Premises by the Tenant or by the Landlord on behalf of the Tenant, the
Tenant shall pay the amount of any such increase as additional rent.
4.07 REDUCTION OF TAXES. Any expense incurred by the Landlord in obtaining or
attempting to obtain a reduction in the amount of tax shall be added to and
included in the amount of such Taxes. If the Tenant has paid its Proportionate
Share of Taxes and the Landlord has thereafter received a refund of any portion
of such Taxes, the Landlord shall make an appropriate refund to the Tenant.
4.08 OTHER COSTS. To pay as additional rent to the Landlord:
a) its Proportionate Share of Operating Costs, by monthly instalments
to be fixed by the Landlord from time to time; and
b) the Costs of Additional Services (if any) upon demand by the
Landlord.
-8-
If the Tenant's business hours are substantially longer than the Normal Business
Hours, the Tenant's Proportionate Share of Operating Costs shall be adjusted to
reflect the additional services, supplies and maintenance required as a
consequence of the longer business hours.
Wherever, in the Landlord's reasonable opinion, any cost or expense included in
Operating Costs properly relates only to a tenant or a group of tenants of the
Building, the Landlord may charge such cost or expense directly to such tenant
or group of tenants. Any cost or expense charged by the Landlord to the Tenant
under this section shall be payable by the Tenant upon demand by the Landlord.
4.09 ADJUSTMENTS. Within 180 days after the end of each Accounting Year the
Landlord shall make a final determination of the actual amount of Operating
Costs and Taxes for the Leased Premises for such Accounting Year and the
Tenant's Proportionate Share thereof and the aggregate of monthly installments
made by the Tenant during the accounting year pursuant to Sections 4.05 and 4.08
shall be adjusted by the Landlord on the basis of the total amount actually paid
or payable by the Tenant for such Accounting Year for Operating Costs and Taxes
for the Leased Premises. If the actual amount payable by the Tenant exceeds the
sum of the monthly installments paid by the Tenant, the Tenant shall pay the
deficiency, without interest, as additional rent within 30 days after the date
of delivery of a statement by the Landlord, notwithstanding that this may fall
after the end of the Term of this Lease. If the sum of the monthly installments
paid by the Tenant exceeds the actual amount payable by the Tenant, the Landlord
will credit the Tenant, without interest, with the excess to the next ensuing
payment of Rent due by the Tenant pursuant to Section 3.01, and if there are no
ensuing payments of Rent pursuant to Section 3.01, the amount shall be paid to
the Tenant.
4.10 SALES TAX EXCLUSION. There shall be excluded from amounts payable by the
Tenant under this Lease (and shown separately on statements) all Sales Taxes
with respect to the purchase of any goods and services, the cost of which goods
and services are included in amounts payable by the Tenant under this Lease, to
the extent that the amount of such Sales Taxes is or will be available to be
claimed by the Landlord as a credit or refund in determining the Landlord's net
tax liability on account of Sales Taxes.
4.11 NET LEASE. It is the intention of the parties that this Lease shall be a
completely net lease, and that the Basic Rent payable to the Landlord shall be
net to the Landlord, without abatement or offset for any cause whatsoever and
that all costs, expenses and obligations of every kind and nature whatsoever
relating to the Leased Premises, whether or not herein referred to and whether
or not of a kind now existing or within the contemplation of the parties hereto,
shall be paid by the Tenant.
4.12 EVIDENCE OF PAYMENT. To produce to the Landlord from time to time upon
request satisfactory evidence of the due payment by the Tenant of all payments
required to be made by the Tenant under this Lease.
4.13 PERMITTED USE. To use the Leased Premises only for the purpose set out in
Section 1.01 (h) and not to use or permit to be used the Leased Premises or any
part thereof for any other purpose or business without the Landlord's prior
written approval.
4.14 WASTE AND NUISANCE. Not to commit or permit any waste or injury to the
Leased Premises including Leasehold Improvements and trade fixtures therein, any
overloading of the floors, any consumption of electricity therein at any time
exceeding 4.5 xxxxx per square foot of Rentable Area, or any consumption or use
of any utility facility which will exceed or overload the capacity of any such
utility, any nuisance or any use or manner of use causing annoyance to other
tenants and occupants of the Building.
4.15 INSURANCE RISKS. Not to do, omit to do or permit to be done or omit to be
done upon the Leased Premises anything which would cause the Landlord's cost of
insurance (whether fire or liability) to be increased or which shall cause any
policy of insurance to be subject to cancellation. Without waiving the foregoing
prohibition, the Landlord may demand, and the Tenant shall pay to the Landlord
upon demand, the amount of any such increase of cost caused by anything so done
or omitted to be done.
4.16 CONDITION. Not to permit the Leased Premises to become untidy, unsightly
or hazardous or permit waste or refuse to accumulate therein.
4.17 BY-LAWS. To comply at its own expense with all municipal, federal,
provincial, sanitary, fire and safety laws, by-laws, regulations and
requirements pertaining to the Leased Premises, the Leasehold Improvements,
trade fixtures, furniture and equipment installed by the Tenant, their operation
and use, and the making by the Tenant of any repairs, changes or improvements
therein.
4.18 FIRE EXIT DOORS. To permit the Landlord to install any fire exit or other
doors in the exterior and demising walls of the Leased Premises necessary to
comply with the requirements of any statute, law, by-law, regulation, ordinance,
order or regulation referred to in Section 4.17, and not to obstruct any such
door.
4.19 RULES AND REGULATIONS. To observe, and to cause its employees and others
over whom the Tenant can reasonably be expected to exercise control to observe
the Rules and Regulations attached as Schedule "B" hereto, and such further and
other reasonable rules and regulations and amendments therein as may hereafter
be made by the Landlord of which notice in writing shall be given to the Tenant.
All such rules and regulations shall be deemed to be incorporated into and form
part of this Lease.
4.20 OVERHOLDING. That if the Tenant shall continue to occupy the Leased
Premises after the expiration or termination of this Lease without any further
written agreement and without objection by the Landlord, the Tenant shall be a
monthly tenant at a monthly Basic Rent equal to 150% of the Basic Rent payable
by the Tenant during the last month prior to the expiration or termination of
this Lease and (except as to length of tenancy) on and subject to the terms and
conditions of this Lease, including the payment of additional rent.
4.21 USE AND OCCUPANCY PRIOR TO TERM. If the Tenant for any reason uses or
occupies the Leased Premises in any way prior to the commencement of the Term,
then during such prior use or occupancy the Tenant shall be a tenant of the
Landlord and shall be subject to the terms and conditions of this Lease,
including the covenant to pay Basic Rent and additional rent.
-9-
4.22 SIGNS. The Tenant will not paint, display, inscribe, place or affix any
sign, symbol, notice or lettering of any kind anywhere outside the Leased
Premises (whether on the outside or inside of the Building) or within the Leased
Premises so as to be visible from the outside of the Leased Premises, with the
exception only of:
a) a standard directory listing in the main lobby of the Building
containing only the name of the Tenant, subject to the prior
approval of the Landlord as to design, size and location;
b) a standard entrance door sign installed at or about the entrance
door to the Leased Premises containing only the name of the Tenant,
subject to receipt, in each case, of the prior written approval of
the Landlord as to design, size and location; and
c) any other signage (if applicable) specified in Schedule "C" hereto.
The Tenant shall indemnify and save harmless the Landlord from all claims,
demands, loss or damage to any person or property arising out of any sign, mast,
aerial or other installation, notwithstanding any consent by the Landlord
thereto.
All the above signs shall be installed at the cost of the Tenant and shall be
maintained and replaced or modified (as required by the Tenant subject to the
Landlord's approval) at the Tenant's cost by the sign company selected by the
Landlord. The Landlord will collect any such costs as rent.
4.23 INSPECTION AND ACCESS. To permit the Landlord and persons authorized by
the Landlord at any time to enter the Leased Premises for the purpose of
inspection, testing, maintenance, providing janitor service and window cleaning,
making repairs, alterations or improvements to the Leased Premises or the
Building, or to have access to utilities and services (including electrical and
mechanical rooms and access panels, which the Tenant agrees not to obstruct) or
to determine the electric light and power consumption by the Tenant in the
Leased Premises. The Tenant shall provide free and unhampered access for the
purpose and shall not be entitled to compensation for any inconvenience,
nuisance or discomfort, but the Landlord in exercising its rights hereunder
shall proceed to the extent reasonably possible so as to minimize interference
with the Tenant's use and enjoyment of the Leased Premises.
4.24 SHOWING LEASED PREMISES. To permit the Landlord and its authorized agents
and employees to show the Leased Premises to prospective purchasers and lenders
at any time during or after Normal Business Hours and to prospective tenants
during Normal Business Hours of the last six months of any lease term and
whenever the Tenant is in arrears of rent for more than 45 days in an amount
equal to or in excess of one month Basic Rent.
4.25 ACCESS TO THE BUILDING OUTSIDE NORMAL BUSINESS HOURS. To comply with all
regulations set by the Landlord for accessing the Building outside Normal
Business Hours and to comply with all the required procedures to operate the
electronic security access system. The Landlord, in case of misuse of the
electronic security access system or of a breach of the terms of this Lease,
including Rules and Regulations, or of any behaviour which, at the sole
discretion of the Landlord, is determined to be unacceptable, by the Tenant or
its employees, invitees or others under its control, may limit or prohibit
access to the Building by the Tenant outside Normal Business Hours in addition
to assessing the Tenant for any damage in accordance to Section 6.02(c). The
Landlord will supply the Tenant with the number of access cards reasonably
required by the Tenant at the commencement of the Initial Term, replacement
cards and/or additional cards as reasonably required by the Tenant from time to
time. The Landlord will levy a reasonable charge for all cards supplied to the
Tenant. The Tenant covenants with the Landlord to promptly inform the Landlord
if any of the Tenant's cards are lost or stolen and to return all cards to the
Landlord at the end of the Term.
4.26 NAME OF BUILDING. The Tenant shall not refer to the Building by any name
other than that designated from time to time by the Landlord and the Tenant may
use the name of the Building for its business address and for no other purpose.
4.27 USE OF COMMON AREAS. Not to keep or display, except as may be specifically
allowed by the Landlord in writing, any merchandise or other thing on or about
the Common Areas or otherwise obstruct the Common Areas.
4.28 OPERATING NAME. The Tenant shall carry on business under the operating
name set out in Section 1.01 (i), which the Tenant represents and warrants it is
entitled to use, and under no other name or style whatsoever unless such other
name or style is first approved in writing by the Landlord, such approval not to
be unreasonably withheld.
4.29 COVENANT TO OPERATE. The Tenant shall throughout the Term continually
operate, occupy and utilize the entire Leased Premises and conduct its business
in accordance with the provisions of this Lease. The Tenant acknowledges that
the Landlord is executing this Lease in reliance upon this covenant and that it
is a material element inducing the Landlord to execute this Lease. The Tenant
shall operate and conduct its business upon the whole of the Premises in an
up-to-date, first class and reputable manner befitting the character of the
Building and shall act diligently and use all proper and reasonable efforts
consistent with good business practice. The Tenant agrees not to make any
material change in the nature or character of the business carried on by the
Tenant in or from the Leased Premises or in the quality of goods and services
offered by the Tenant in or from the Leased Premises without the written consent
of the Landlord.
4.30 NEW INDEMNITY. If at any time during the Term, any indemnifier of the
Tenant's obligations under this Lease satisfies its obligations to the Landlord
under its indemnity agreement with the Landlord, then within 30 days thereafter,
the Tenant shall provide a new indemnity on the same terms and conditions as
contained in such agreement from a new indemnifier acceptable to the Landlord,
acting reasonably.
4.31 CLEANING. Notwithstanding any janitorial service that the Landlord may
have agreed to provide to the Leased Premises at certain intervals at the cost
of the Tenant, as part of the Operating Costs, the Tenant shall keep the Leased
Premises and, without limitation, the inside and outside of all glass, windows
and doors of the Leased Premises, and all interior surfaces of the Leased
Premises, in a neat, clean and sanitary condition and shall not allow any
refuse, garbage or other loose or objectionable or waste material to accumulate
in or about the Leased Premises. The Tenant, if no janitorial service to the
Leased Premises is provided by the Landlord, shall pay for its own janitorial
service. In the event the Tenant fails to clean in accordance with this Section
4.31 upon
-10-
notice to do so from the Landlord, the Landlord may clean the same and the
Tenant shall pay the cost to the Landlord as additional rent.
4.32 COMPLIANCE WITH ENVIRONMENTAL LAWS. To comply at its own expense with all
federal, provincial, regional district and municipal laws, regulations,
guidelines and bylaws relating to pollution, Hazardous Substances or the
protection of the environment with respect to the occupation or use of the
Leased Premises and the use of the Common Areas. The Tenant shall take all
necessary precautions so as to ensure that the Land, the Building, the Leased
Premises and any areas surrounding the Land do not and are not likely to have
Hazardous Substances located thereon or therein as a consequence of the
occupation or use of the Leased Premises by the Tenant or of the business
carried on in the Leased Premises or of any actions or failures to act by the
Tenant its employees, officers, directors, invitees or licensees. The Tenant
shall not at any time cause or allow any Hazardous Substances to be generated,
created, used, stored, treated, transferred, transported or disposed of on the
Land, the Building or the Leased Premises except in compliance with all the
laws, after obtaining the prior consent of the Landlord and pursuant to the
terms of this Lease. The Landlord may impose any conditions that it considers
reasonably necessary (including the requirement that monies be posted as
security for the performance of the Tenant's obligations) to protect the Land,
the Building and the Leased Premises.
4.33 REPORTS. To make, obtain and deliver to the Landlord copies of all reports
and studies required by the Landlord and by governmental authorities having
jurisdiction regulating the manufacture, use, storage, transportation or
disposal of Hazardous Substances by the Tenant. The Tenant shall conform to the
procedures adopted by the Landlord from time to time for the management of risks
associated with Hazardous Substances, including without limiting the generality
of the foregoing, conducting or participating in the conduct of audits of
environmental matters to confirm compliance with the requirements of this Lease
and all laws, adopting and following reasonable plans for the proper handling
and storage of Hazardous Substances, maintaining records of storage and use of
Hazardous Substances, notifying the Landlord of any changes in storage or
handling of Hazardous Substances, and providing to the Landlord all reports as
required form time to time.
4.34 AUDIT AND REMEDIAL ACTION. To take any remedial action which the Landlord
or any authority requires be taken with regard to Hazardous Substances that are
the responsibility of the Tenant and the Tenant shall permit the Landlord, its
employees and agents, including its consultant, to have access to the Leased
Premises to test the same and comply with the requirements of any authority with
respect to Hazardous Substances. The Tenant within ten (10) days after demand by
the Landlord shall pay to the Landlord as additional rent the amount allocated
to the Tenant by the Landlord, acting reasonably, of the costs of the audit and
(if the remedial action was in respect of Hazardous Substances the existence of
which on or in the Land, the Building or the Leased Premises was caused or
contributed to by the Tenant, its officers, directors, employees, invitees or
licensees) of any remedial action with respect to such Hazardous Substances.
4.35 INDEMNITY. To indemnify, defend and save harmless the Landlord from and
against any and all costs, damages, losses, liability, fees, penalties and
charges incurred by, assessed against or imposed upon the Landlord or its
officers, directors, employees or agents (including legal costs) as a result of
the Tenant's use, disposal, transportation, generation and/or sale of Hazardous
Substances and in respect of any contamination of the Land, the Building, the
Leased Premises and any area or areas surrounding the Land caused or contributed
to by the Tenant, its officers, directors, employees, invitees or licensees.
4.36 SURVIVAL. That the obligations of the Tenant hereunder related to
Hazardous Substances, and all indemnities of the Tenant hereof, shall survive
the expiry or earlier termination of this Lease.
4.37 PARKING. To use the parking lot and the multi-storeyed parkade of the
Building, including entrances, ramps and lanes but excluding those portions
thereof which constitute any areas allocated to a tenant or licensee on a
seasonal or temporary basis (together, the "Parking Areas") only as designated,
allocated and regulated by the Landlord. The Landlord may designate certain
parking spaces as visitors' parking spaces, and other parking spaces for the
exclusive use of certain tenants. During the Term of the Lease the Tenant shall
have the right to park the number of vehicles set out in Section 1.01(l) (the
"Allowed Number of Vehicles") in the Parking Areas as designated by the Landlord
and as directed by the Landlord from time to time and the Tenant's
representatives and employees shall park only as directed by the Landlord and
shall not be allowed to park in the parking spaces designated for the exclusive
use of other tenants or as visitors' parking spaces whether they are rented,
metered, coin operated, or free of any charge. The Landlord is entitled to rent,
meter or otherwise charge for the use of visitors' parking by the customers of
the Building and to remove unauthorised vehicles (including those of the
Tenant's representatives and employees) from the Parking Areas at the expense of
the owner of the vehicle. The Tenant shall follow all parking regulations set by
the Landlord including, but not limited to, maximum parking time allowed (if
any), limitations of maximum vehicle size, weight, etc. The Landlord reserves
the right to close or restrict by electronic means or otherwise the use of the
Parking Areas after Normal Business Hours. Overnight parking in the Parking
Areas is prohibited.
The right to use the Parking Areas constitutes a bare license to occupy space
for parking purposes only and the Landlord shall have no liability or
responsibility for any damage, loss, cost, expense or injury of whatsoever
nature suffered or incurred by the Tenant, its servants, representatives,
employees, invitees or licensees. In the case a Valet Parking System is adopted
as specified in Section 4.38, the only responsibility of the Landlord shall be
to ensure that the parking operator carries adequate insurance as required in
Sub-section 4.38(a). In consideration for the Landlord granting to the Tenant
the license to park its vehicle(s) in the Parking Areas, the Tenant shall pay to
the Landlord as rent for each of the Allowed Number of Vehicles on the first day
of each month the amounts specified in Section 1.01(m), such amounts to be
adjusted annually, by the Landlord acting reasonably, to the prevailing rent in
the open market then being charged for parking rights in Burnaby.
4.38 VALET PARKING SYSTEM. The Landlord shall have the right to implement a
valet parking system (the "Valet Parking System") for the Parking Areas provided
that:
(a) it shall be operated by a reputable parking operator which shall
carry such insurance in respect of its operations as the Landlord,
acting reasonably, requires to protect the interest of the Tenant
and of its servants, representatives, employees, invitees or
licensees; and
(b) there shall be no additional charge to the Tenant or its
representatives or employees above the amounts set out in Section
1.01(m).
-11-
The Tenant will cooperate and will cause its representatives and employees to
cooperate with the procedures implemented by the operator of the Valet Parking
System, which may include leaving keys to vehicles with the operator so that
they may be parked by the operator and moved to other locations within the
Parking Areas by the operator. The Landlord will have the right to terminate any
Valet Parking System in which event the Tenant will be entitled to park pursuant
to Sections 1.01(l) and 4.37 and as directed by the Landlord.
ARTICLE 5
LANDLORD'S COVENANTS
5.00 LANDLORD'S COVENANTS. The Landlord covenants with the Tenant as follows:
5.01 QUIET ENJOYMENT. Subject to the terms of this Lease, if the Tenant pays
the rent and observes and performs all the terms, covenants and conditions on
the Tenant's part in this Lease contained, the Tenant will quietly hold and
enjoy the Leased Premises for the Term without interruption by the Landlord
except as permitted by this Lease.
5.02 H.V.A.C. To provide heating, ventilating and, if the Leased Premises are
equipped with air conditioning equipment, air conditioning of the Leased
Premises to an extent sufficient to maintain a reasonable temperature therein at
all times during Normal Business Hours, and during any additional time as the
Landlord may decide from time to time, except when prevented from doing so by
any cause beyond the Landlord's reasonable control and except during the making
of repairs. Should the Landlord be temporarily in default under this Section
5.02, it shall not be liable for indirect or consequential damages or damages
for personal discomfort or illness.
5.03 ELEVATORS. To furnish for use by the Tenant and its employees and invitees
in common with other persons entitled thereto passenger elevator service to the
floor where the Leased Premises are located except when the elevators become
inoperative for any reason beyond the Landlord's reasonable control or because
of repairs or when the elevators become damaged or destroyed, in which case the
Landlord shall have a reasonable time within which to repair such damage or
replace such elevators and the Landlord shall repair or replace the same as soon
as reasonably possible. Should the Landlord be temporarily in default under this
Section 5.03, it shall not be liable for indirect or consequential damages or
damages for personal discomfort or illness.
5.04 USE OF COMMON AREAS. To permit the Tenant and its employees and invitees
to use during Normal Business Hours and, subject to the restrictions set forth
in Section 4.25, outside Normal Business Hours, in common with others entitled
thereto, of the common entrances, lobbies, stairways and corridors of the
Building giving access to the Leased Premises.
5.05 WASHROOMS. Unless the Leased Premises are equipped with washroom(s), to
permit the Tenant and its employees and invitees in common with others entitled
thereto to use the public washrooms in the Building on the floor(s) in which the
Leased Premises are situate.
5.06 MAINTENANCE OF COMMON AREAS. To cause the elevators, common entrances
lobbies, stairways, corridors, washrooms and other parts of the Building from
time to time provided for common use and enjoyment to be cleaned or otherwise
maintained in keeping with good management practice.
5.07 JANITOR SERVICE. If janitorial services to the Leased Premises are
provided for by the Landlord, to cause when reasonably necessary, and at
reasonable intervals, the vacuuming of all carpets, the sweeping and/or mopping
of hard surface floorings, the dusting of desks, tables and other furniture of
the Tenant to a height from the floor not to exceed 6'6", the cleaning of both
sides of any glazing walls within the Leased Premises and of the interior face
of the exterior windows and of the perimeter glazed walls, and the emptying of
the Tenant's litter cans and ashtrays. All other janitorial and cleaning
services to the Leased Premises as they are required by the Tenant from the
Landlord from time to time, or as they become necessary should the Tenant fail
to comply with Section 4.16, shall be provided as Additional Services. The
Landlord shall not be responsible for any act of omission or commission on the
part of persons employed to perform such work.
ARTICLE 6
REPAIR, DAMAGE AND DESTRUCTION, ALTERATIONS
6.01 LANDLORD'S REPAIRS. The Landlord covenants with the Tenant to keep in a
good and reasonable state of repair, and consistent with the general standards
of comparable commercial buildings in the City of Burnaby:
(a) the Building (other than the Leased Premises and premises of other
tenants) including the foundation, roof, exterior walls (excluding glass
portions thereof), the systems for heating, ventilating, air conditioning
and interior climate control, the Common Areas and the systems provided
for bringing Utilities to the Leased Premises; and
(b) the structural members or elements of the Leased Premises.
6.02 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep in a good and reasonable state of repair and consistent with
the general standards of comparable commercial buildings in the City of
Burnaby, but subject to Section 6.03(b) the Leased Premises including all
Leasehold Improvements, and leasehold improvements installed in the Leased
Premises by the Landlord or by previous tenants, and all trade fixtures
including all glass portions of exterior and demising walls, but with the
exception of structural members or elements of the Leased Premises and
defects in construction performed or installations made by the Landlord
and Insured Damage therein;
(b) that the Landlord may enter and view the state of repair, and that the
Tenant will repair according to notice in writing, and that the Tenant
will leave the Leased Premises in a good and reasonable state of repair,
subject always to the exceptions referred to in Section 6.02(a);
-12-
(c) that if any part of the Building including the systems for heating,
ventilating, air conditioning and interior climate control and for the
provision of utilities becomes out of repair, damaged or destroyed through
the negligence or misuse of the Tenant or its employees, invitees or
others over which the Tenant can reasonably be expected to exercise
control, the expense of repairs or replacements thereto necessitated
thereby shall be reimbursed to the Landlord promptly upon demand; and
(d) that in case it shall become necessary or proper at any time from
accident or for improving the condition or operation of the elevators,
heating, ventilating and air conditioning apparatus, electric lighting,
boilers or machinery, or anything pertaining thereto, to omit the
operation of the elevators, heating, ventilating and air conditioning
apparatus or electric lighting until necessary repairs or improvements
shall have been made and completed, the Landlord shall be at liberty to do
so without in any manner or respect affecting the obligations of the
Tenant under this Lease.
6.03 ABATEMENT AND TERMINATION. It is agreed between the Landlord and the
Tenant that:
(a) in the event of damage to the Leased Premises or to the Building and
if the damage is such that the Leased Premises or any substantial part
thereof is rendered not reasonably capable of use and occupancy by the
Tenant for the purposes of its business for any period of time in excess
of ten (10) days, then:
(i) unless the damage was caused by the fault or negligence of the
Tenant or its employees or others under its control, from and after
the date of occurrence of the damage and until the Leased Premises
are again reasonably capable of use and occupancy as aforesaid, rent
shall xxxxx from time to time in proportion to the part or parts of
the Leased Premises not reasonably capable of such use and
occupancy, and
(ii) unless this Lease is terminated as hereinafter provided, the
Landlord or the Tenant, as the case may be (according to the nature
of the damage and their respective obligations to repair as provided
in Section 6.01 and 6.02) shall repair such damage with all
reasonable diligence, but to the extent that any part of the Leased
Premises is not reasonably capable of such use and occupancy by
reason of damage which the Tenant is obligated to repair hereunder,
any abatement of rent to which the Tenant is otherwise entitled
hereunder shall not extend later than the time by which, in the
reasonable opinion of the Landlord, repairs by the Tenant ought to
have been completed with reasonable diligence; and
(b) if premises whether of the Tenant or other tenants of the Building
comprising in the aggregate half or more of the Rentable Area of the
Building, are substantially damaged or destroyed by any cause to the
extent such that in the reasonable opinion of the Landlord they cannot be
repaired or rebuilt within 180 days after the occurrence of the damage or
destruction, the Landlord may at its option, exercisable by written notice
to the Tenant given within 30 days after the occurrence of such damage or
destruction, terminate this Lease, in which event neither the Landlord nor
the Tenant shall be bound to repair as provided in Sections 6.01 and 6.02,
and the Tenant shall instead deliver up possession of the Leased Premises
to the Landlord with reasonable expedition but in any event within 60 days
after delivery of such notice of termination, and rent shall be
apportioned and paid to the date upon which possession is so delivered up
(but subject to any abatement to which the Tenant may be entitled under
Section 6.03(a) by reason of the Leased Premises having been rendered in
whole or in part not reasonably capable of use and occupancy), but
otherwise the Landlord or the Tenant as the case may be (according to the
nature of the damage and their respective obligations to repair as
provided in Sections 6.01 and 6.02) shall repair such damage with
reasonable diligence.
6.04 LANDLORD'S ALTERATIONS. The Landlord reserves the right to undertake and
complete at any time:
a) any alterations or improvements of the Building that, in the Landlord's
opinion, are necessary for, or useful to, the safety, efficiency,
modernization, comfort or decor of the Building, including, but not
limited to, elevators, plumbing, electrical and mechanical systems, of all
or some of the leased premises (including, or not including, the Leased
Premises) and/or vacant premises for the purpose of making them suitable
for lease. For the purpose of the design and construction of these works
and improvements, the Landlord or its contractors may, if necessary, enter
into, pass through, and work upon the Leased Premises, and may improve,
remodel, alter (including changing the location of entrance doors) and add
to the Leased Premises, putting the Tenant to no unnecessary
inconvenience; and
b) the installation and maintenance within the Leased Premises of utility
lines, pipes, ducts, vents and conduits to be located above the suspended
ceilings of the Leased Premises and/or to run in the interior of framed
walls, to serve the Leased Premises or other premises.
By exercising any such rights, the Landlord shall not be deemed to have
constructively evicted the Tenant or otherwise to be in breach of this Lease nor
shall the Tenant, provided the Landlord does not put the Tenant to any
unnecessary inconvenience, be entitled to any abatement of rent or other
compensation from the Landlord. Without limiting the generality of the
foregoing, the Landlord, in the case of any works, improvements, or
installations within the Leased Premises (other than for emergency repair)
shall:
1) give the Tenant reasonable notice inclusive of a description of the
work, improvement, or installation to be carried out;
2) work after Normal Business Hours whenever reasonably required;
3) finish any work, improvement, or installation in a good and
workmanlike manner; and
4) leave the affected areas of the Leased Premises clean and in good
order.
-13-
6.05 RELOCATION OF LEASED PREMISES. The Landlord reserves the right at any
time, upon giving the Tenant written notice at least 30 days in advance, to
provide the Tenant with other premises (the "New Premises") in the Building in
substitution of the Leased Premises (whether or not any part of the Leased
Premises form part of the New Premises). The New Premises:
a) shall contain at least the same Rentable Area of the Leased
Premises,
b) shall have a configuration reasonably similar to that of the
Leased Premises, and
c) shall be improved to equivalent or better standards than the
Leased Premises.
The Tenant agrees to move to the New Premises and the Landlord will pay for any
reasonable cost of moving the Tenant's property and equipment from the Leased
Premises to the New Premises. As full compensation for all other costs,
expenses, damages (including disruption and loss of business), nuisance or
discomfort which the Tenant may incur or suffer, Basic Rent for the New Premises
for the first two months of occupancy will xxxxx.
Upon relocation, the Tenant will surrender the Leased Premises to the Landlord
in the condition required by this Lease and this Lease will be deemed to be
amended as follows:
a) by the substitution for the current Schedule "A" of another
plan prepared by the Landlord and marked Schedule "A" which
shows the New Premises,
b) by the substitution in Section 1.01(d) of the Rentable Area of
the Leased Premises with the Rentable Area of the New
Premises, and
c) by the substitution in Section 1.01(g) of the rate or rates
per square foot per annum with new rate(s) determined in a
manner that, notwithstanding any possible greater Rentable
Area of the New Premises, the annual and monthly Basic Rents
shown in such section will not change.
All references in this Lease to the Leased Premises shall be deemed to refer to
the New Premises.
If required by the Landlord the Tenant shall execute an agreement prepared by
the Landlord providing for the above described amendments.
This Lease, as amended, will continue in force and effect as a lease of the New
Premises for the balance of the Term.
ARTICLE 7
UTILITIES AND ADDITIONAL SERVICES
7.01 WATER AND TELEPHONE. The Landlord shall furnish appropriate ducts for
bringing telephone services to the Leased Premises and shall provide water to
washrooms available for the Tenant's use in common with others entitled thereto.
7.02 ELECTRICITY. The Tenant shall pay throughout the Term promptly to the
Landlord when demanded:
a) its Proportionate Share of the cost of electric light and power
supplied to the Building, except that if the Tenant consumes more
power than the average power consumption of the other tenants of the
Building (the "Average Consumption"), the Landlord shall apportion
and charge to the Tenant the part of the total electrical xxxx which
the Landlord can reasonably allocate to the excess of the Tenant's
power consumption over the Average Consumption before calculating
the Tenant's Proportionate Share; and
b) its Proportionate Share of the cost of cleaning, maintaining and
servicing in all respects all electric lighting fixtures in the
Building including the cost of replacement of electric light bulbs,
tubes, starters and ballasts used to replace those installed at the
commencement of the Term.
7.03 ADDITIONAL SERVICES. The Landlord may, by way of Additional Services:
a) in addition to the janitorial or cleaning services which are
normally supplied by the Landlord to the tenants generally, provide
any cleaning services to the Leased Premises deemed necessary or
appropriate by the Landlord and any additional janitorial or
cleaning services required by the Tenant;
b) move or supervise the moving of furniture or equipment of the
Tenant;
c) carry out or supervise repairs or alterations conducted within the
Leased Premises;
d) supervise deliveries to and from the Leased Premises; and
e) if requested by the Tenant, supply or supervise the supply to the
Tenant of any other service not normally furnished to tenants
generally.
The cost of Additional Services provided to the Tenant shall be paid to the
Landlord as additional rent by the Tenant from time to time promptly upon
receipt of invoices therefor from the Landlord.
7.04 ALTERATION. Where the Landlord is required by law or a competent authority
to make alterations to the Leased Premises, then in each year of the Term after
completion of such alterations (but not after the cost thereof has been repaid
to the Landlord), the Tenant shall pay to the Landlord 10% of the cost to the
Landlord of making such alterations, and if the Landlord is required to
-14-
make similar alterations to other portions or areas of the Building the cost of
so doing shall be reasonably apportioned by the Landlord to each of the
premises.
ARTICLE 8
LICENSES, ASSIGNMENTS AND SUBLETTING
8.01 LICENSES, ETC. The Tenant shall not suffer or permit any part of the
Leased Premises to be used or occupied by any persons other than the Tenant, any
subtenants permitted under Section 8.02 and the employees of the Tenant and any
such permitted subtenant, or suffer or permit any part of the Leased Premises to
be used or occupied by any licensee or concessionaire, or suffer or permit any
persons to be upon the Leased Premises other than the Tenant, such permitted
subtenants and their respective employees, customers and others having lawful
business with them.
8.02 ASSIGNMENTS AND SUBLETTING. The Tenant shall not assign, mortgage or
otherwise encumber or transfer this Lease or sublet the Leased Premises or any
part thereof without having obtained the Landlord's prior written consent. The
Landlord may withhold its consent arbitrarily to a proposed assignment of this
Lease or sublease of the Leased Premises or any part thereof if it elects to
exercise its right of termination hereinafter set forth. If such termination
right is not exercised, the Landlord covenants not to withhold its consent
unreasonably as to any assignee or sublessee who is in satisfactory financial
condition, agrees to use the Leased Premises for the purposes and in the manner
permitted and specified hereunder, and is otherwise satisfactory to the
Landlord. No partial assignment shall be permitted.
The Tenant shall not assign this Lease or sublet the Leased Premises or any part
thereof unless:
a) it shall have received or procured a bona fide written offer to take
an assignment or sublease which is not inconsistent with this Lease,
and the acceptance of which would not breach any provision of this
Lease; and
b) it shall have first requested and obtained the consent in writing of
the Landlord thereto.
Any request for consent shall be in writing and accompanied by a true copy of
the offer, all information available to the Tenant and requested by the Landlord
as to the responsibility, financial standing and business of the proposed
assignee or subtenant and payment of such amount as the Landlord reasonably
requires to reimburse it for its time and expense in considering the request for
consent. Notwithstanding the provisions of subsection (a), within 10 days after
the receipt by the Landlord of such request for consent and of all information
which the Landlord shall have requested hereunder, the Landlord shall have the
right upon written notice of termination submitted to the Tenant, if the request
is to assign this Lease or sublet the Leased Premises, to cancel and terminate
this Lease as of a termination date to be stipulated in the notice of
termination which shall be not less than 60 days or more than 90 days following
the giving of such notice. In such event the Tenant shall surrender the Leased
Premises in accordance with such notice of termination and rent and additional
rent shall be apportioned and paid to the date of surrender. If such consent
shall be given, the Tenant shall assign or sublet, as the case may be, only upon
the terms set out in the offer submitted to the Landlord. No assignment or
subletting of this Lease shall be effective unless the assignee or sublessee
shall execute an assumption agreement on the Landlord's form, prepared at the
expense of the Tenant, assuming all the obligations of the Tenant hereunder. The
Tenant agrees that any consent to an assignment or subletting of this Lease or
Leased Premises shall not thereby release the Tenant of its obligations
hereunder. The consent by the Landlord to an assignment or subletting, if
granted, shall not constitute a waiver of the necessity for the Tenant to obtain
the prior written consent of the Landlord to a subsequent assignment or
subletting.
Without limitation, the Tenant shall for the purpose of this Lease be considered
to assign or sublet in any case where it permits the Leased Premises or any
portion thereof to be, or the Leased Premises or any portion thereof are,
occupied by persons other than the Tenant, its employees and others engaged in
carrying on the business of the Tenant, whether pursuant to assignment,
subletting, parting with or sharing possession, license or other right, or where
any of the foregoing occurs by operation of law.
8.03 CHANGE IN CONTROL OF TENANT. If the Tenant is a private corporation and if
by the sale or other disposition of its shares or securities the control or the
beneficial ownership of such corporation is changed at any time during the Term
of this Lease, such change shall be deemed to be an assignment of the Lease
within the meaning of Section 8.02. If such control or beneficial ownership is
changed without the prior written consent of the Landlord, the Landlord may, at
its option, treat such change as an event of default and, without limiting the
Landlord's other remedies, the Landlord may terminate this Lease upon 60 days
notice to the Tenant.
ARTICLE 9
FIXTURES AND IMPROVEMENTS
9.01 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant will not install or
alter any Leasehold Improvements or trade fixtures in the Leased Premises
without the Landlord's prior written approval. All Leasehold Improvements will,
upon affixation, become the property of the Landlord without compensation
therefor to the Tenant. In installing or altering any Leasehold Improvements or
trade fixtures, the Tenant shall obtain all required building and occupancy
permits and shall not alter or interfere with any installations which have been
made by the Landlord without the prior written approval of the Landlord. The
Tenant's request for any approval hereunder shall be in writing and accompanied
by an adequate description of the contemplated work and, where appropriate,
working drawings which must be submitted to the Landlord in both hard copy and
digital formats. All work to be performed in the Leased Premises shall be
designed by competent architects, engineers, or designers (as required under the
circumstances) and performed by competent contractors and subcontractors all of
whom the Landlord shall have approved (such approval not to be unreasonably
withheld, but provided that the Landlord may require that the Landlord's
contractors and subcontractors be engaged for any mechanical or electrical
work). All such design and construction work shall be subject to inspection by
and the reasonable supervision of the Landlord, and shall be performed in
accordance with any reasonable conditions or regulations imposed by the Landlord
and completed expeditiously and without interruption, in a good and workmanlike
manner, in accordance with the description of the work approved by the Landlord.
Should the Landlord supply and install any leasehold improvements for the Tenant
at the Tenant's cost, the Tenant shall repay such costs to the Landlord as
additional rent.
-15-
9.02 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In connection with
the installation or alteration of Leasehold Improvements and trade fixtures and
all other work or installations made by or for the Tenant in the Leased
Premises, the Tenant shall comply with all the provisions of the Builders' Lien
Act (British Columbia) and other statutes from time to time applicable thereto
and, except as to any hold-back, shall promptly pay all accounts relating
thereto. The Tenant will not create any security interest, mortgage, conditional
sale agreement or other encumbrance in respect of its Leasehold Improvements or
trade fixtures, permit any such security interest, mortgage, conditional sale
agreement or other encumbrance to attach to the Leased Premises, or permit any
"notice of security interest" or other similar notice to be filed against the
Land or this Lease. If any builders' or other lien for work, labour, services or
materials supplied to or for the Tenant or for the cost of which the Tenant may
be in any way liable or claims therefor shall arise or be filed or any such
security interest, mortgage, conditional sale agreement or other encumbrance
shall attach, or any such notice be filed against the Land or this Lease, the
Tenant shall within 20 days after receipt of notice thereof discharge it, and
any certificates of action registered in respect of any lien, by payment or
giving security or in such other manner as may be required or permitted by law.
If the Tenant does not do so, the Landlord may in addition to all other remedies
hereunder avail itself of its remedy under Section 13.01 and may make any
payments required to procure the discharge of any such liens or encumbrances.
The Landlord shall be entitled to be reimbursed by the Tenant as provided in
Section 13.01, and its right to reimbursement shall not be affected or impaired
if the Tenant shall then or subsequently establish or claim that any lien or
encumbrance so discharged was without merit or excessive or subject to any
abatement, set-off or defence. This section shall not prevent the Tenant from
mortgaging or encumbering its chattels, furniture or equipment not of the nature
of fixtures.
9.03 REMOVAL OF FIXTURES AND IMPROVEMENTS. Except to the extent otherwise
expressly agreed by the Landlord in writing, no Leasehold Improvements, trade
fixtures, furniture or equipment shall be removed by the Tenant from the Leased
Premises either during or at the expiration or sooner termination of the Term
except that (1) the Tenant may at the end of the Term remove its trade fixtures,
(2) the Tenant shall at the end of the Term remove such of its Leasehold
Improvements and trade fixtures as the Landlord shall require to be removed, and
(3) the Tenant may remove its furniture and equipment at the end of the Term,
and also during the Term in the usual and normal course of its business where
such furniture or equipment has become excess for the Tenant's purposes or the
Tenant is substituting therefor new furniture and equipment. The Tenant shall,
in the case of every removal either during or at the end of the Term, make good
any damage caused to the Leased Premises or the Building by the installation and
removal.
ARTICLE 10
INSURANCE AND LIABILITY
10.01 LANDLORD'S INSURANCE. The Landlord shall take out and keep in force during
the Term insurance with respect to the Building. The insurance to be maintained
by the Landlord shall be in respect of perils and in amounts and on terms and
conditions which from time to time are insurable at a reasonable premium and
which are normally insured by reasonably prudent owners of properties similar to
the Building. The perils to be insured against by the Landlord shall include,
without limitation, comprehensive general liability, boilers and machinery, fire
and extended perils, and losses suffered by the Landlord in its capacity as
Landlord through business interruption.
10.02 TENANT'S INSURANCE. The Tenant shall take out and keep in force during the
Term:
(a) comprehensive general public liability (including bodily injury, death
and property damage) insurance on an occurrence basis with respect to the
business carried on, in or from the Leased Premises and the Tenant's use
and occupancy thereof of not less than $2,000,000.00 per occurrence which
insurance shall include the Landlord as a named insured and shall protect
the Landlord in respect of claims by the Tenant as if the Landlord were
separately insured;
(b) insurance, for the full replacement cost in respect of fire and such
other perils, including sprinkler leakage as are from time to time defined
in the usual extended coverage endorsement covering the Leasehold
Improvements and the Tenant's trade fixtures and the furniture and
equipment of the Tenant, and which insurance shall include the Landlord as
a named insured as the Landlord's interest may appear with respect to
insured Leasehold Improvements and provide that any proceeds recoverable
in the event of loss to Leasehold Improvements shall be payable to the
Landlord, but the Landlord agrees to make available such proceeds toward
the repair or replacement of the Leasehold Improvements if this Lease is
not terminated pursuant to any other provision hereof; and
(c) tenant's fire legal liability insurance in an amount not less than the
replacement cost of the Leased Premises.
All insurance required to be maintained by the Tenant hereunder shall be on
terms and with insurers to which the Landlord has no reasonable objection, shall
provide that such insurers shall provide to the Landlord 30 days prior written
notice of cancellation or material alteration of such terms and shall waive any
right of subrogation against the Landlord. The Landlord may require the Tenant
to furnish certificates or other evidence acceptable to the Landlord as to the
insurance from time to time required to be effected by the Tenant and its
renewal or continuation in force.
10.03 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that the Landlord
shall not be liable for any bodily injury or death or loss or damage to any
property belonging to the Tenant or its employees, invitees, or licensees or any
other person in, on or about the Building unless resulting from the wilful
misconduct or gross negligence of the Landlord, but in no event shall the
Landlord be liable:
(a) for any damage other than Insured Damage which is caused by steam,
water, rain or snow which may leak into, issue or flow from any part of
the Building or from the pipes or plumbing works (including sprinklers, if
any) thereof or from any other place or quarter or for any damage caused
by or attributable to the condition or arrangement of any electric or
other wiring or for any damage caused by anything done or omitted by any
other tenant;
(b) for any act or omission (including theft, malfeasance or negligence)
on the part of any contractor from time to time employed by it to perform
janitor services, security services, supervision or any other work in or
about the Leased Premises of the Building;
-16-
(c) for loss or damage, however caused, to money, securities, negotiable
instruments, paper or other valuables of the Tenant;
(d) for any damages for personal discomfort or illness resulting from the
operation or non-operation of the Building ventilating and/or air
conditioning system or of any other equipment or machinery in the Building
or on the Land, including but not limited to elevators, or the
interruption of any public utility;
(e) for any business interruption or loss; or
(f) for indirect or consequential damages.
10.04 LIMITATION OF TENANT'S LIABILITY. The Landlord releases the Tenant from
all claims or liabilities in respect of any damage which is Insured Damage, to
the extent of the cost of repairing such damage, but not from injury, loss or
damage which is consequential thereto or which arises therefrom where the Tenant
is negligent or otherwise at fault.
10.05 INDEMNITY OF LANDLORD. Except as provided in Section 10.04 the Tenant
agrees to indemnify and save harmless the Landlord in respect of all claims for
bodily injury or death, property damage or other loss or damage arising from the
conduct of any work by or any act or omission of the Tenant or any assignee,
subtenant, agent, employee, contractor, invitee or licensee of the Tenant, and
in respect of all costs, expenses and liabilities incurred by the Landlord in
connection with or arising out of all such claims, including the expenses of any
action or proceeding pertaining thereto, and in respect of any loss, cost,
expense or damage suffered or incurred by the Landlord arising from any breach
by the Tenant of any of its covenants and obligations under this Lease. This
indemnity shall survive the expiration or termination of this Lease.
ARTICLE 11
SUBORDINATION, ATTORNMENT, REGISTRATION AND CERTIFICATES
11.00 The Tenant agrees with the Landlord that:
11.01 SALE OR FINANCING OF BUILDING. The rights of the Landlord under this Lease
may be mortgaged, charged, transferred or assigned to a purchaser or to a
mortgagee, or trustee for bond holders and in the event of a sale or of default
by the Landlord under any mortgage, trust deed or trust indenture and the
purchaser, mortgagee or trustee, as the case may be, duly entering into
possession of the Building or the Leased Premises, the Tenant agrees to attorn
to and become the Tenant of such purchaser, mortgagee or trustee under the terms
of this Lease.
11.02 SUBORDINATION AND ATTORNMENT. This Lease and all rights of the Tenant
hereunder are subject and subordinate to all mortgages, debentures, trust deeds
or trust indentures now or hereafter existing which may now or hereafter affect
the Building and to all renewals, modifications, consolidations, replacements
and extensions thereof. Whenever requested by any mortgagee (including any
trustee under a debenture, trust deed or trust indenture), the Tenant shall
attorn to such mortgagee as the tenant upon all the terms of this Lease. The
Tenant agrees to execute promptly whenever requested by the Landlord or by such
mortgagee an instrument of subordination or attornment, as the case may be, as
may be required of it, provided however that such mortgagee or their respective
successors or assigns in favour of which such attornment has been made, shall
recognize this Lease and the rights of the Tenant hereunder so long as the
Tenant shall not be in default in the performance of its obligations under this
Lease.
11.03 REGISTRATION. The Tenant covenants and agrees with the Landlord not to
register this Lease, and that the Landlord is not obliged to deliver this Lease
in registrable form.
11.04 CERTIFICATES. The Tenant agrees with the Landlord that the Tenant shall
promptly, whenever requested by the Landlord from time to time, execute and
deliver to the Landlord (and if required by the Landlord, to any mortgagee
{including any trustee under a trust deed or trust indenture} or intended
purchaser designated by the Landlord) a certificate in writing as to the then
status of this Lease, including as to whether it is in full force and effect, is
modified or unmodified, confirming the rental payable hereunder and the state of
the accounts between the Landlord and Tenant, the existence or non-existence of
defaults, and any other matters pertaining to this Lease as to which the
Landlord shall request a certificate.
11.05 ASSIGNMENT BY LANDLORD. If the Landlord sells the Building or a portion
thereof containing the Leased Premises or assigns this Lease or any interest of
the Landlord hereunder, then to the extent that such purchaser or assignee has
assumed the covenants and obligations of the Landlord hereunder, the Landlord
shall, without further written agreement, be freed and relieved of liability
upon such covenants and obligations.
ARTICLE 12
UNAVOIDABLE DELAYS AND NO WAIVER
12.01 UNAVOIDABLE DELAY. Except as herein otherwise expressly provided, if and
whenever and to the extent that either the Landlord or the Tenant shall be
prevented, delayed or restricted in the fulfilment of any obligations hereunder,
in respect of the supply or provisions of any service or utility, the making of
any repair, the doing of any work or any other thing (other than the payment of
rent or other moneys due) by reason of strikes or work stoppages, or being
unable to obtain any material, service, utility or labour required to fulfil
such obligations or by reason of any statute, law or regulation or inability to
obtain any permission from any governmental authority having lawful jurisdiction
preventing, delaying or restricting such fulfilment, or by reason of other
unavoidable occurrence, the time for fulfilment of such obligation shall be
extended during the period in which such circumstance operates to prevent, delay
or restrict the fulfilment thereof, and the other party to this Lease shall not
be entitled to compensation for any inconvenience, nuisance or discomfort
thereby occasioned; but nevertheless the Landlord will use its reasonable
efforts to maintain services essential to the use and enjoyment of the Leased
Premises.
-17-
12.02 NO WAIVER. The Tenant agrees with the Landlord that:
a) IN GENERAL. No covenant, proviso or condition in this Lease (collectively,
"Covenant") shall be deemed waived by the Landlord unless such waiver is
in writing and signed by the Landlord. No waiver of any Covenant by the
Landlord will imply or constitute the further waiver of that or any other
Covenant. The failure of the Landlord to seek redress for the breach of,
or default in, or to insist upon the strict performance of, any Covenant
or of any of the rules and regulations set forth herein or hereinafter
adopted by the Landlord, shall not be deemed a waiver of any rights or
remedies the Landlord may have, and shall not be deemed a waiver of any
subsequent breach of, or default in, such Covenant or such rules and
regulations.
b) NO ACCEPTANCE OF SURRENDER. No act or thing done by the Landlord or the
Landlord's agents during the Term of this Lease will be deemed an
acceptance of a surrender of the Leased Premises, and no agreement to
accept a surrender will be valid unless in writing, signed by the
Landlord. The delivery of keys to any employee or agent of the Landlord
will not constitute a termination of this Lease unless the Landlord has
entered into a written agreement to that effect.
c) NO WAIVER OF PAYMENT. No payment by the Tenant, nor receipt by the
Landlord, of a lesser amount than the rent or other charges stipulated in
this Lease will be deemed to be anything other than a payment on account
of the earliest stipulated rent. No endorsement or statement on any
cheque, or any letter accompanying any cheque or payment as rent, will be
deemed an accord and satisfaction. The Landlord will accept the cheque for
payment without prejudice to the Landlord's right to recover the balance
of such rent or to pursue any other remedy available to the Landlord.
d) NO CONSENT TO SUBLET OR ASSIGNMENT. If this Lease is assigned, or if the
Leased Premises or any part of the Leased Premises are sublet or occupied
by anyone other than the Tenant, the Landlord may collect rent from the
assignee, subtenant, or occupant, and apply the net amount collected to
the rent reserved in this Lease. That collection will not be deemed a
waiver of the covenant of this Lease against assignment and subletting, or
the acceptance of the assignee, subtenant, or occupant as a tenant, or a
release of the Tenant from the complete performance by the Tenant of its
covenants in this Lease.
ARTICLE 13
REMEDIES OF LANDLORD'S AND TENANT'S DEFAULT
13.01 REMEDYING BY LANDLORD, NON-PAYMENT AND INTEREST. In addition to all rights
and remedies available to the Landlord in the event of any default hereunder by
the Tenant either by any other provisions of this Lease or by statute or the
general law the Landlord:
(a) shall have the right at all times to remedy or attempt to remedy any
default of the Tenant, and in so doing may make any payments due or
alleged to be due by the Tenant to third parties and may enter upon the
Leased Premises to do any work or other things therein, and in such event
the Tenant shall pay all expenses of the Landlord in remedying or
attempting to remedy such default forthwith upon demand;
(b) shall have the same rights and remedies in the event of any
non-payment by the Tenant of any amounts payable by the Tenant under any
provisions of this Lease as in the case of a non-payment of rent; and
(c) if the Tenant shall fail to pay any rent or other amount from time to
time payable by it to the Landlord hereunder promptly when due, shall be
entitled, if it shall demand it, to interest thereon at a rate of 5% per
annum in excess of the Prime Rate published from time to time.
13.02 REMEDIES CUMULATIVE. The Landlord may from time to time resort to any or
all of the rights and remedies available to it in the event of any default
hereunder by the Tenant, either by any provision of this Lease or by statute or
the general law, all of which rights and remedies are intended to be cumulative
and not alternative.
13.03 RIGHT OF RE-ENTRY ON DEFAULT OR TERMINATION. If and whenever the rent
hereby reserved or other sums payable by the Tenant or any part thereof is in
arrears, whether lawfully demanded or not, and the Tenant fails to pay such rent
or other sums within five (5) business days after the Landlord shall have given
to the Tenant notice requiring such payment, or if the Tenant breaches or fails
to observe and perform any of the covenants, agreements, provisos, conditions,
rules or regulations and other obligations on the part of the Tenant to be kept,
observed or performed hereunder, or if this Lease is terminated pursuant to any
provisions hereof, or if the Landlord is entitled to terminate this Lease and
has given notice terminating it pursuant to any provision hereof, then and in
every such case it shall be lawful for the Landlord thereafter to enter into the
Leased Premises to repossess and enjoy as of its former estate.
13.04 TERMINATION AND ENTRY. If and whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease, the
Landlord, in addition to all other rights and remedies, shall have the right to
terminate this Lease forthwith by leaving upon the Leased Premises notice in
writing of such termination.
13.05 PAYMENT OF RENT, ETC., ON TERMINATION. Upon the giving by the Landlord of
a notice in writing terminating this Lease, whether pursuant to this or any
other provision of this Lease, this Lease shall terminate, rent and any other
payments for which the Tenant is liable under this Lease to the date of such
termination, shall be computed, apportioned and paid in full, and the Tenant
shall immediately deliver up possession of the Leased Premises to the Landlord,
and the Landlord may re-enter and take possession of them, all of the foregoing
being without prejudice to the Landlord's right to claim damages for losing the
benefit of the Lease over its unexpired term.
13.06 WAIVER OF DISTRESS. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's right of
distress and covenants and agrees that notwithstanding any such statute none of
the goods and chattels of the Tenant on the Leased Premises at any time during
the Term shall be exempt from levy by distress for rent in arrears.
-18-
13.07 RE-LETTING, ETC. If the Landlord is entitled to re-enter upon the Leased
Premises under any provision of this Lease, then in addition to all other rights
it may have, the Landlord shall have the right as agent of the Tenant to enter
the Leased Premises and re-let them and as agent of the Tenant for such purpose
to make such alterations and repairs as are necessary and hire such real estate
agents at such commission and on such terms as the Landlord shall determine. The
costs of such alterations and repairs and any commission or inducement required
to obtain a tenant on behalf of the Tenant shall be rent payable by the Tenant
on demand by the Landlord. The Landlord shall receive the rent from such
re-letting as the agent of the Tenant and may take possession of any furniture
or other property thereon and sell the same at public or private sale without
notice and apply the proceeds thereof and any rent derived from re-letting the
Leased Premises upon account of the rent due and to become due under this Lease
and the Tenant shall be liable to the Landlord for the deficiency, if any.
13.08 UNCLAIMED PROPERTY. If the Tenant, upon termination or earlier expiration
of this Lease, leaves the Leased Premises without removing all of the Tenant's
chattels and trade fixtures, such chattels and trade fixtures remaining on the
Leased Premises shall be deemed to be abandoned and the Landlord may, without
notice to the Tenant, either remove the same at the cost of the Tenant or take
the same as the Landlord's property without compensation to the Tenant. If the
Landlord removes the chattels and trade fixtures at the cost of the Tenant, the
Landlord shall provide notice to the Tenant at the last known address of the
Tenant that the Tenant may claim the chattels and trade fixtures upon payment of
the Landlord's costs of removal and storage provided that the Tenant claims the
same within three days of the date of the notice. Three days after the date of
the notice the Landlord may dispose of the chattels and trade fixtures if not
then claimed by the Tenant. Unless the Landlord has claimed the chattels and
trade fixtures as its property, the costs of removal, storage and disposition
shall be paid by the Tenant to the Landlord upon demand. If the Landlord stores
the chattels and trade fixtures in property of the Landlord, the Tenant shall
pay to the Landlord a storage fee equal to 5 cents per day per square foot of
Rentable Area occupied by the chattels and trade fixtures.
ARTICLE 14
EVENTS TERMINATING LEASE
14.01 CANCELLATION OF INSURANCE. If any policy of insurance upon the Building
from time to time effected by the Landlord shall be either cancelled or about to
be cancelled by the insurer by reason of the use or occupation of the Leased
Premises by the Tenant or any assignee, subtenant or licensee of the Tenant or
anyone permitted by the Tenant to be upon the Leased Premises and the Tenant
after receipt of notice in writing from the Landlord fails to take such
immediate steps in respect of such use or occupation as will enable the Landlord
to reinstate or avoid cancellation of (as the case may be) such policy of
insurance, the Landlord may at its option terminate this Lease.
14.02 BANKRUPTCY, ETC. If the Tenant shall make any assignment for the benefit
of creditors, become bankrupt or insolvent or take the benefit of any statute
now or hereafter in force for bankrupt or insolvent debtors, then in any such
case the Landlord may at its option terminate this Lease and thereupon, in
addition to the payment by the Tenant of rent and other payments for which the
Tenant is liable under this Lease, rent for the current month and the next
ensuing three months' rent shall immediately become due and be paid by the
Tenant.
14.03 PROHIBITED OCCUPANCY, ETC. In case, without the written consent of the
Landlord, the Leased Premises shall be used by any persons other than the Tenant
or its permitted assigns or subtenants or for any purpose other than that for
which they were leased, or occupied by any persons whose occupancy is prohibited
by this Lease, or if the Leased Premises shall be vacated or abandoned, or
remain unoccupied for 15 days or more while capable of being occupied, or if the
Term or any of the goods and chattels of the Tenant shall at any time be seized
in execution or attachment, or if the Tenant shall make any bulk sale, or (if a
corporation) shall take any steps or suffer any order to be made for its
winding-up or other termination of its corporate existence, then in any such
case the Landlord may at its option terminate this Lease and thereupon, in
addition to the payment by the Tenant of rent and other payments for which the
Tenant is liable under this Lease (if the Landlord has not elected to claim
damages for losing the benefit of the Lease over its unexpired term), rent for
the current month and the next ensuing three months' rent shall immediately
become due and be paid by the Tenant.
ARTICLE 15
MISCELLANEOUS
15.01 NOTICES. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either mailed by
prepaid registered mail or delivered to the Landlord at the address specified in
Section 1.01 (a) (ii) or telecopied to the Landlord at the fax number specified
in such section and if to the Tenant either delivered to the Tenant by leaving
it at the Leased Premises or mailed by prepaid registered mail addressed to the
Tenant at the Leased Premises or telecopied to the Tenant at the fax number
specified in Section 1.01 (b) (ii). Every such notice shall be deemed to have
been given when delivered or when telecopied or, if mailed as aforesaid, upon
the third day after it was mailed in Canada, provided that, should there be
between the time of mailing and receipt of the notice a mail strike, slowdown or
other labour dispute which might affect the delivery of such notice by the
mails, then such notice shall only be effective if actually delivered. The
Landlord may from time to time by notice in writing to the Tenant designate
another address in Canada and/or another fax number as the address and fax
number to which notices are to be mailed, delivered or telecopied to it. The
Tenant may from time to time by notice in writing to the Landlord designate
another fax number as the fax number to which notices are to be telecopied to
it.
15.02 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions expressed or
implied relating to this Lease or the Leased Premises save as expressly set out
in this Lease and in any outstanding agreement to lease in writing between the
Landlord and the Tenant pursuant to which this Lease has been executed. All
terms of such agreement to lease shall remain in full force and effect until
fulfilled, except to the extent inconsistent with the provisions of this Lease.
In the event of any inconsistency between the terms of any such outstanding
agreement to lease and this Lease, the terms of this Lease shall prevail. This
Lease may not be modified except by an agreement in writing executed by the
Landlord and the Tenant.
-19-
15.03 SEVERABILITY. Should any part of this Lease be held invalid for any
reason, such invalidity shall not affect the validity of the remainder which
shall continue in force and effect and be construed as if this Lease had been
executed without the invalid portion.
15.04 TIME OF ESSENCE. Time shall be of the essence of this Lease.
15.05 AREA DETERMINATION. The Rentable Area of any premises (including the
Leased Premises) or the Building shall be calculated by the Landlord's architect
or surveyor from time to time appointed for the purpose, whose certificate shall
be conclusive. The Landlord shall allocate the area of the Service Areas to the
Rentable Area of the Leased Premises and to the other leased and leasable
premises in the Building so as to result in the Landlord obtaining basic rent as
if the whole of the Building had been rented to one tenant, with no deduction
from Rentable Area for recessed entrances or alcoves, for columns or
projections, lobbies or other areas that are Service Areas.
15.06 SUCCESSORS AND ASSIGNS. This Lease and everything herein contained shall
enure to the benefit of and be binding upon the successors and assigns of the
Landlord and the heirs, executors and administrators and the permitted
successors and assigns of the Tenant. Reference to the Tenant shall be read with
such changes in gender as may be appropriate, depending upon whether the Tenant
is a male or female person or a firm or corporation, and if the Tenant is more
than one person or entity, the covenants of the Tenant shall be deemed joint and
several.
15.07 GOVERNING LAW. This Lease shall be governed by and construed in accordance
with the laws of the Province of British Columbia. The Landlord and the Tenant
agree that all of the provisions of this Lease are to be construed as covenants
and agreements as though the words importing such covenants and agreements are
used in each separate section hereof.
15.08 CAPTIONS. The captions of the Table of Contents and the captions appearing
in bold letters in this Lease have been inserted as a matter of convenience and
for reference only and in no way define, limit or enlarge the scope or meaning
of this Lease or of any provision hereof.
ARTICLE 16
RENEWAL AND ARBITRATION
16.01 RENEWAL. The Landlord covenants with the Tenant that if the Tenant has
performed on a timely basis and is not in default in the performance of the
covenants, provisos and agreements herein on the part of the Tenant to be paid,
observed and performed, the Landlord will at the expiration of the Initial Term
(at the cost of the Tenant and upon its written request delivered to the
Landlord not later than six months before the expiration of the Initial Term)
grant to the Tenant a renewal lease of the Leased Premises for the renewal term
set out in Section 1.01(k) (the "Renewal Term") subject to all the terms and
conditions herein contained, excepting this right of renewal and excepting that
the annual Basic Rent and the Parking Rent for the Renewal Term shall be the
prevailing annual rent in the open market then being charged for the best use of
similar premises and parking rights in Burnaby and excluding any rent free
periods or signing bonus, improvement allowance or other inducement payment for
the Initial Term. The Landlord and the Tenant agree that the Basic Rent for the
Renewal Term shall be determined based on the assumption that the Tenant has
already received any signing bonus, improvement allowance, rent free period or
other inducement payment that would be commonly received by the Tenant for the
Lease in the then current market circumstances, although it is understood and
agreed between the Landlord and the Tenant that no such signing bonus,
improvement allowance, rent free period or other inducement payment under the
Lease shall in fact be payable. In calculating the annual Basic Rent for the
Renewal Term the Landlord and the Tenant agree to take into account that the
Leased Premises include any improvements which have been or are hereafter made
to the Leased Premises by any person. If by the date 60 days prior to the
commencement of the Renewal Term the Landlord and Tenant have not agreed as to
the amount of such annual Basic Rent and Parking Rent, such amounts shall be
determined by arbitration as provided in Section 16.02. Until the annual Basic
Rent and Parking Rent have been determined as herein provided, the Tenant shall
continue to pay the Basic Rent and Parking Rent at the rate payable before such
commencement and upon such determination the Landlord and the Tenant shall make
the appropriate readjustments. In no event shall the annual Basic Rent and the
Parking Rent for the Renewal Term be less than the annual Basic Rent and Parking
Rent for the final Lease Year of the prior term calculated without rent free
periods or other inducements.
16.02 ARBITRATION. If the Landlord and the Tenant have failed to agree as to the
annual Basic Rent for the Leased Premises and as to the Parking Rent payable
with respect to any portion of the Initial Term or any renewal term when
required hereunder, the determination of such annual Basic Rent and Parking Rent
shall be referred to a single arbitrator pursuant to the Provisions of the
Commercial Arbitration Act of British Columbia. In determining the annual Basic
Rent and Parking Rent, the arbitrator shall assess the annual Basic Rent and
Parking Rent on the assumption that the Tenant has already received any signing
bonus, improvement allowance, rent free period or other inducement payment that
would be commonly received by the Tenant for the Lease in the then current
market circumstances, although it is understood and agreed between the Landlord
and the Tenant that no such signing bonus, improvement allowance, rent free
period or other inducement payment under the Lease shall in fact be payable. In
calculating the annual Basic Rent for any portion of the Initial Term or any
renewal term , the arbitrator shall take into account that the Leased Premises
include any improvements made prior to the date of the arbitration hearing to
the Leased Premises by any person. The annual Basic Rent and Parking Rent shall
not be less than the annual Basic Rent and Parking Rent for the final Lease Year
of the prior term calculated without reference to rent free periods. The
determination made by the arbitrator shall be final and binding upon the
Landlord and the Tenant, and their respective successors and assigns. Each party
shall pay one-half of the fees and expenses of the arbitrator. The provisions of
this Section shall be determined to be a submission to arbitration within the
provisions of the Commercial Arbitration Act, as amended from time to time.
-20-
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease on the day,
month and year first above written.
LANDLORD: PRODUCTION COURT PROPERTY HOLDINGS INC. by its duly
authorized agent, TONKO REALTY ADVISORS (B.C.) LTD.
/s/ Xxxxxx Altow
--------------------------------------------------
By: Xxxxxx Altow, Vice President
TENANT: SPECTRUM SIGNAL PROCESSING, INC.
/s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------------------
By: Xxxxxx X. Xxxxxxxxxx, President & CEO
-21-
SCHEDULE "A" TO LEASE
FLOOR PLAN
[FLOOR PLAN]
-22-
SCHEDULE "B" TO LEASE
RULES AND REGULATIONS
1. REFUSE.
(a) All trash, rubbish, waste material and other garbage shall be kept in
proper receptacles within the Leased Premises until removal.
(b) In the event the Landlord considers necessary, or otherwise consents
to in writing, the placing of the Tenant's garbage outside the Leased
Premises, such garbage shall be placed by the Tenant in containers
approved by the Landlord but provided at the Tenant's expense and kept at
a location designated by the Landlord.
2. USE OF LEASED PREMISES.
(a) The Tenant shall not xxxx, drive nails, screw nor drill into walls,
nor in any way deface the glass, ceilings, partitions, floors, wood, stone
or iron work. The Tenant shall bear the expense of any breakage, stoppage
or damage caused by the Tenant or his servants, agents or employees.
(b) The doors, sashes, windows, glass doors, lights and skylights that
reflect or admit light into the halls or other places of the Building,
shall not be covered or obstructed.
(c) The Tenant shall not hang or suspend from any wall or ceiling or roof,
or any other part of the Leased Premises or the Building, any equipment,
fixtures, signs or displays which are not first authorized by the
Landlord.
(d) The Tenant will use only the Building standard window blinds as
determined by the Landlord and will not install or permit to be installed
on or adjacent to the windows in the leased Premises any other window
covering or shades of any type whatsoever whether or not visible from the
outside of the Building, including, without limitation, drapes, curtains,
blinds or shades.
(e) The Tenant shall not use in the Leased Premises any machinery which
may cause any noise or jar or tremor to the floors or walls, or which by
its weight might injure the floors or walls of the Building.
(f) The Landlord shall prescribe the maximum weight, size and position of
any safes or pieces of heavy equipment used in the Building. All damage
done to the Building by putting in or taking out, or maintaining safes or
pieces of heavy equipment, shall be repaired at the expense of the Tenant.
(g) The Tenant shall not move any furniture, equipment or fixtures to or
from their premises - if such premises are designated for office or retail
use - during Normal Business Hours. The Landlord may authorize in writing
an exception to this rule in the case of a Tenant who wishes to move a
single piece of furniture, equipment or fixture, and may establish the
date and time of delivery or pickup. The Tenant must request permission to
move furniture, equipment or fixture in or out of the Leased Premises two
business days prior to the move and the Landlord will, at the Tenant's
cost, install elevator protections, make the necessary arrangements with
the electronic security monitoring station and retain a security guard.
(h) When a Tenant wishes to move any furniture, equipment or fixtures to
or from their premises, it shall give the Landlord two days notice,
specifying the desired delivery or pickup time and the quantity of items
to be moved. The Landlord will arrange for elevator pads, electronic
security bypass and a security guard to attend the move, all at the
Tenant's cost. If the move is at the end of the term or if the Tenant is
in arrears of rent, the Landlord may require the prepayment by the Tenant
of the estimated amount of the above described costs.
3. ELECTRICAL EQUIPMENT.
a) Electric wiring of every kind shall be introduced and connected only as
directed by the Landlord, and no boring or cutting for wires will be
allowed except with the consent of the Landlord. The location of the
telephones, call boxes, etc., shall be prescribed by the Landlord.
b) If the Tenant requires any electrical equipment which might overload
the electrical facilities in the Leased Premises, the Tenant shall submit
to the Landlord plans and specifications for works required to install and
supply additional electrical facilities or equipment to prevent such
overloading, and shall obtain the Landlord's written approval to perform
such works, which shall meet all the applicable regulations or
requirements of any government or other competent authority, the
Association of Insurance Underwriters and the Landlord's insurers, all at
the sole cost and expense of the Tenant.
4. PLUMBING. No plumbing facilities shall be used for any purpose other than
that for which they were designed, and no foreign substance of any kind
shall be thrown therein, and the expense of any breakage, stoppage or
damage resulting from a violation of this provision by the Tenant or by
any persons for whom the Tenant is responsible shall be borne by the
Tenant. No garburators shall be installed by the Tenant without the prior
written approval of the Landlord.
5. UTILITIES.
a) The Tenant shall not leave open any doors or windows to the exterior of
the Building which would adversely affect the performance of any heating,
ventilating or air-conditioning equipment in the Building.
b) Waste and excessive or unusual use of water or electricity shall not be
allowed.
-23-
6. SIGNS, ADVERTISING, DISPLAY WINDOW.
a) The Tenant shall not erect or install any exterior signs or interior
window or door signs or advertising media or window or door lettering or
placards without the prior written consent of Landlord.
b) The Tenant shall not use any advertising media that the Landlord shall
deem objectionable to it or to other tenants, such as, without limiting
the generality of the foregoing, loudspeakers, phonographs, televisions,
public address systems, sound amplifiers, radios, broadcasts or telecasts
within the Building in a manner capable of being heard or seen outside the
Leased Premises.
c) The Tenant shall not install any exterior lighting, exterior
decorations or build any aerial or mast or make any change to the store
front of the Leased Premises, without the prior written consent of the
Landlord.
d) The Tenant shall keep any display windows neatly dressed and, together
with any other windows, store fronts and lighted signs in, upon or affixed
to the Leased Premises, illuminated during such hours as required by the
Landlord.
e) Any installation requiring the Landlord's consent which has not
received such consent shall be subject to immediate removal without notice
at the Tenant's cost.
7. COMMON AREAS. Neither the Tenant nor the Tenant's employees and agents
shall solicit business in the Common Areas nor distribute any handbills or
other advertising matter. The tenants, their employees, servants, agents
or patrons shall not loiter in the Common Areas.
8. NOTICE OF ACCIDENT, DEFECTS. The Tenant shall give immediate notice to the
Landlord in case of fire or accident in the Leased Premises or of defects
therein or to any fixtures or equipment thereon.
9. EMERGENCY CONTACTS. The Tenant shall provide the Landlord with the names,
addresses and telephone numbers of two authorized employees of the Tenant
who may be contacted by the Landlord in the event of an emergency relative
to the Leased Premises.
10. PERMITS, LICENSES. The Tenant alone shall be responsible for obtaining,
from the appropriate governmental authority or other regulatory body
having jurisdiction, whatever permits, licenses or approvals as may be
necessary for the operation of its business.
11. TENANT'S WORK. Any work to be performed in the Leased Premises by the
Tenant or its contractors shall be first approved and then made
expeditiously and without interruption, strictly in accordance with the
rules and regulations of the Landlord from time to time in respect of work
by the tenants within the Building.
12. KEYS, LOCKS, SECURITY CARDS. If the Tenant requires a new lock for any
entrance door or interior door of the Leased Premises, new keys for said
door(s) or new or replacement electronic entry cards to the Building, it
shall require such new or replacement locks, keys or electronic entry
cards from the Landlord. The Landlord will immediately process the
Tenant's request at the Tenant's cost through the Landlord's locksmith or
security contractor. The Tenant shall not change any locks in the Leased
Premises nor have the locks in the Leased Premises changed by anybody
(except the Landlord) without the Landlord's written consent. Any locks
found to have been changed without said consent will be rekeyed at the
expense of the Tenant.
13. ANIMALS. Tenants shall not keep or permit to be kept in the Leased
Premises any cats, dogs (except guide dogs for the visually or hearing
impaired), birds or other pets or any aquariums or fish tanks.
14. BICYCLES AND VEHICLES. Tenants shall not bring into the Building or keep
or permit to be kept in the Leased Premises any bicycles or other types of
vehicles (except those required by disabled persons), whether or not they
are equipped with a motor.
15. FURTHER RULES AND REGULATIONS. For the general benefit and welfare of the
Building and the tenants therein, the Landlord may amend and supplement
these rules and regulations and the same shall be binding on the Tenant.
The rules and regulations, as from time to time amended, are not
necessarily of uniform application, but may be waived in whole or in part
in respect of other tenants without affecting either enforceability with
respect to the Tenant and the Leased Premises, and may be waived in whole
or in part with respect to the Leased Premises without waiving them as to
future application to the Leased Premises, and the imposition of such
Rules and Regulations shall not create or imply any obligation of the
Landlord to enforce them or create any liability of the Landlord for their
non-enforcement.
In the event the Tenant is in violation of any of the Rules and Regulations
herein contained, the Landlord may, in its sole discretion and after giving
reasonable notice to the Tenant to cease and desist from said violation, levy an
administrative surcharge on the Tenant, which administrative surcharge shall be
due and payable by the Tenant upon receipt and collectible by the Landlord as
rent.
-24-
