THIS AGREEMENT made as of the 23rd day of May, 2000,
BETWEEN:
YALETOWN CENTRE INVESTMENTS LTD., (Incorporation No.378951)
-----------------------------------
a body corporate duly incorporated under the laws of the Province of British
Columbia, having a registered and records office at 000 X. Xxxxx, Xxxxxxxx
Xxxxxx, 000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(hereinafter called the "Landlord")
OF THE FIRST PART
AND
YALETOWN MARKETING CORP. (Incorporation No.580537) a body corporate duly
incorporated under the laws of the Province of British Columbia, having a
registered and records office at #00-00000 Xxxxxx Xxx, Xxxxxx, XX X0X 0X0.
(hereinafter called the "Tenant")
OF THE SECOND PART
AND:
Xxxxx Xxxx and Xxxxxxx Page, Businessperson, of Suite 2604 - 0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX X0X 0X0
(hereinafter called the "Covenantor")
WHEREAS:
A. The Landlord is the registered owner of that certain parcel or tract of
land and premises situate, lying and being in the City of Vancouver, in the
Province of British Columbia, and known and described as:
Parcel Identifier: 000-000-000
Lot E (Explanatory Plan 19156)
Block 76
District Lot 541
Plan 3469
upon which is situate the building (as hereinafter defined);
B. The Landlord and Tenant are desirous of entering into a lease of the
Demised Premises (as hereinafter defined);
NOW THEREFORE WITNESSETH THIS AGREEMENT that in consideration of the mutual
covenants, agreements, representations and warranties and further in
consideration of the payment by the Tenant to the Landlord of the rents
hereinafter provided, the parties agree as follows:
INITIAL
ARTICLE 1-DEFINITIONS
---------------------
1.1 The terms defined in this Article shall for all purposes of this Lease
or other instruments supplemental hereto, have the meanings herein specified,
unless the context expressly or by necessary implication otherwise requires:
(a) "Additional Rent" means any of the costs and expenses at any time
payable by the Tenant pursuant to Article 6 hereof;
(b) "Basic Rent" means the rent described in paragraph 5.1 hereof;
(c) "Building" means the building situate on the Land, and includes any
additions, alterations, or extensions thereto;
(d) "Building Equipment" means all machinery, boiler, plumbing, wiring,
heating, air-conditioning and lighting and other equipment which is an integral
part of the Building, if any, other than Tenant's Equipment;
(e) "Common Areas" means those areas that are designated by the landlord as
Common Areas (which designation may be changed from time to time) including,
without limitation, the roof, exterior weather walls, pedestrian sidewalks,
exterior landscaped areas, parking areas, roadways, sidewalks, all enclosed
malls, courts and arcades, public hallways, open malls, service corridors,
stairways, escalators, ramps, moving sidewalks and elevators and other
transportation equipment and systems, interior landscaped areas, public
washrooms, electrical, telephone, meter, valve, mechanical, mail, storage and
janitor rooms and galleries, fire prevention, security and communications
systems, general signs, columns, all other installations or services located
therein or related thereto as well as the structures housing the same, truck
courts, common loading areas and driveways;
(f) 'Common Maintenance Cost" means the total, without duplication, of the
expenses incurred by the Landlord for operating, maintaining and repairing the
Building (including necessary replacements, and shall, without limiting the
generality of the foregoing), include the aggregate of:
i) the costs of repairs, maintenance and such replacements to the Common
Areas and the Common Facilities as are properly chargeable in accordance with
sound accounting practice to operating expenses as distinguished from capital
replacement or improvements;
ii) janitorial, window-cleaning and other similar costs, including supplies
and equipment;
iii) the expense for gardening and landscaping, line painting, rental of
signs and equipment, lighting, sanitary control, the removal of snow, parking
areas cleaning and security;
iv) wages paid for maintenance and operating personnel, including payments
for workers compensation, unemployment insurance, vacation pay, Canada Pension
Plan contributions and fringe benefits whether statutory or otherwise;
v) scavenging, garbage and waste collection and disposal;
vi) the cost of fuel, electrical power and other utilities furnished to the
Building;
vii) equipment or sign rental; and
viii) the cost of any independent contractors engaged to perform any of the
foregoing services;
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(g) "Common Facilities" means the electrical, music and public address
systems, heating ventilating, air-conditioning, plumbing and drainage equipment
and installations and any enclosures constructed therefor, fountains, customer
service stairways, escalators, ramps, moving sidewalks, elevators, signs, lamp
standards, public washroom facilities and parking deck and all other facilities
which are provided or designated (which designation may be changed from time to
time by the Landlord and which are located within the Building.)
(h) "Cost of Heating, Ventilating and Air-Conditioning" means the total,
without duplication, of the expenses incurred by the Landlord for operating,
maintaining, repairing and replacing any heating, air-conditioning or
ventilation systems or equipment ("HVAC"), and shall without limiting the
generality of the foregoing, include the aggregate of:
i) the amount expended by the Landlord for fuel, water, electricity and
additives for the
HVAC;
ii) the total annual costs to boiler and pressure vessels insurance coverage
paid by the Landlord for insurance;
iii) wages paid to maintenance and operating personnel for the HVAC,
including payments for workers compensation, unemployment insurance, vacation
pay, Canada Pension Plan contributions and fringe benefits whether statutory or
otherwise;
iv) the costs of repairs, maintenance and such replacements to the HVAC as
are properly chargeable, in accordance with sound accounting practice to
operating expenses, as distinguished from capital replacements or improvements;
v) the portion of municipal tax costs from municipal taxes which may be
reasonably allocated to the HVAC.
(i) "Costs of Insurance" means the annual cost to the Landlord to take out
insurance in respect of the Building and the Land (as set out in Article 8
hereof) and such other insurance as the Landlord may from time to time
determine.
(j) "Demised Premises" means all that portion of the Building which is
outlined in red on Schedule "A" attached hereto and more particularly referred
to as Xxxxx 000, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, consisting
of approximately 1,404 square feet out of a total square footage of 45,381
square feet;
(k) "Land" means that parcel or tract of land and premises legally described
in Recital "A" hereof;
(1) "Lease" means this instrument as originally executed and delivered or,
if amended, or supplemented or renewed, as so amended, or supplemented or
renewed;
(m) "Realty Taxes" means all real estate taxes, assessments, rates and
charges and other governmental impositions general or special, ordinary or
extraordinary, foreseen or unforeseen, of every kind, including, without
limitation, water and sewer charges, assessments for local or public
improvements and school taxes which may at any time during the term of the Lease
be imposed, assessed or levied in respect of the land and/or in respect of the
improvements from time to time thereon, including any cost or expense by way of
legal fees, appraiser's fees or fees of a similar nature incurred by the
Landlord in conducting any appeal in respect of any such taxes, rates, charges
or impositions, all such amounts to be adjusted to exclude any portion thereof
payable for periods outside the Term of Lease.
(n) "Security Deposit" means the deposit described in paragraph 5.3 hereof.
INITIAL
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(o) "Special Tenant Expenses" means the expenses described in paragraph 6.2
hereof;
(p) "Structural Repairs" means repairs necessary from time to time to the
foundations, supports, beams, exterior roof and bearing walls of the Building,
painting exterior walls, landscaping and replacement of Common Area fixtures,
provided that if any dispute shall arise between the Landlord and Tenant as to
whether any given repairs are or are not Structural Repairs then the matter
shall be resolved by binding arbitration under the Commercial Arbitration Act
(British Columbia) decided by a single arbitrator who shall be a duly qualified
Civil Engineer named by the Landlord and the Tenant and the decisions of such
arbitration shall be conclusive and binding upon the parties hereto;
(q) 'Tenant's Equipment" means all personal property, apparatus, machinery
and equipment, other than Building Equipment, owned by the Tenant and used or
intended for use in connection with the operation of the business of the Tenant
and whether installed prior to the commencement of the Term of Lease or at any
time and from time to time during the Term of Lease;
(r) "Tenant's Proportionate Share" with respect to any amount means 3.09 %
of such amount;
(s) "Term" means the term of ONE (1) year(s) described in paragraph 3.1
hereof;
(t) "Commencement Date" means February 1, 2000;
(u) "Termination Date" means January 31, 2001;
ARTICLE 2- GRANT OF LEASE
-------------------------
2.1 The Landlord hereby demises and leases upon the Tenant and the Tenant
hereby takes and rents the Demised Premises all on the terms and conditions
herein contained.
2.2 In addition to the lease herein of the Demised Premises, the Landlord
hereby grants to the Tenant and the Tenant's invitees, agents and servants, in
common with the Landlord and all other person authorized by the Landlord from
time to time, a license to use the Common Areas for the purpose of gaining
access to the Demised Premises and better using the same, provided that nothing
herein shall in any way restrict the Landlord from entering, maintaining,
altering or changing the Common Areas, or from altering or adding to the
Building as long as the Tenant is able to gain access to the Demised Premises.
ARTICLE 3- TERM OF LEASE
------------------------
3.1 The Lease shall be for a term of ONE (1) years (the "Term") commencing
February 1, 2000 (the "Commencement Date") and ending on January 31, 2001 (the
"Termination Date").
ARTICLE 4- TO OPERATE DURING THE TERM
-------------------------------------
4.1 The Tenant will not during the term vacate the leased premises either in
whole or in part (whether actually or constructively) but will:
(a) conduct its business in the entire Demised Premises,
(b) actively carry on in the Demised Premises, the type of business for
which the Demised Premises are leased to the Tenant.
INITIAL
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ARTICLE 5- RENT
---------------
5.1 The Tenant shall pay during the Term total Basic Rent of TWENTY ONE
THOUSAND SEVEN HUNDRED SIXTY-TWO DOLLARS ($21,762.00) payable monthly in advance
on the first day of each and every month in consecutive monthly installments ONE
THOUSAND EIGHT HUNDRED THIRTEEN DOLLARS AND FIFTY CENTS ($1,813.50), and the
first such monthly installments, or a pro-rated portion thereof in the event
this Lease is effective other than on the first day of a month, shall be paid on
execution of this Lease and subsequent installments shall be paid on the first
day of each and every month during the term hereby demised;
5.2 The Landlord acknowledges receipt of TWO THOUSAND SEVEN HUNDRED
EIGHT-FIVE
DOLLARS AND FOURTY-EIGHT CENTS ($2,785.48) representing the payment of Basic
Rent, Additional
Rent and G.S.T. for the first month of the Term.
5.3 The Landlord acknowledges receipt of a Security Deposit in the amount of
ONE THOUSAND NINE HUNDRED FOURTY DOLLARS AND FOURTY-FIVE CENTS ($1,940.45). The
Security Deposit shall be held by the Landlord without liability for interest,
as security for the faithful performance by the Tenant of all the terms,
covenants and conditions of this Lease by the Tenant to be kept, observed and
performed. If at any time during the Term the Rent or other sums of payable by
the Tenant are overdue and unpaid, or if the Tenant fails to keep or perform any
of the terms, covenants and conditions of this Lease to be kept, observed and
performed by the Tenant, then the Landlord at its option may, in addition to any
and all other rights and remedies provided for in this Lease or by law,
appropriate and apply the entire Security Deposit, or so much thereof is
necessary to compensate the Landlord for loss or damage suffered by the Landlord
due to such breach on the part of the Tenant. If the entire Security Deposit, or
any portion thereof is appropriated and applied by the Landlord for payment of
overdue rent or other sums due and payable to the Landlord by the Tenant
hereunder, then the Tenant shall, upon written demand of the Landlord, forthwith
remit to the Landlord a sufficient amount in cash to restore the Security
Deposit to the original sum deposited, and the Tenant's failure to do so within
three (3) days after receipt of such demand constitutes a breach of this Lease.
If the Tenant complies with all of the terms, covenants and conditions and
promptly pays all of the rent and other sums herein provided and payable by the
Tenant to the Landlord, the Security Deposit shall be returned in full to the
Tenant without interest within sixty (60) days after the end of the Term, or
within sixty (60) days after the earlier termination of the Term, as the case
may be.
5.4 The rent reserved hereunto shall be paid in Canadian Funds to the
Landlord at its address for notice herein unless another place of payment is
designated by the Landlord to the Tenant in writing, and the Tenant shall (at
the request of the Landlord) deliver postdated cheques to the Landlord on the
first day of the Term for the payment of Rent to fall due in the months in the
Term.
5.5 The Lease shall be a net lease, and the Basic Rent shall be net to the
Landlord, and shall yield to the Landlord the entire Basic Rent during the Term
without abatement, deduction or set-off of any nature whatsoever and all costs,
expenses, rates, taxes, charges and obligations of every kind and nature
whatsoever relating to the Demised Premises, whether or not herein referred to
and whether or not of a kind now existing or within the contemplation of the
parties hereto, shall be paid by the Tenant excepting only any Landlord's
Corporation Capital Tax, income tax or taxes other than business tax imposed or
levied by any authority whatever on the income received by the Landlord from the
Demised Premises.
5.6 Any money payable by the Tenant to the Landlord in addition to the Basic
Rent shall be deemed
to be rent. All monies payable by the Tenant to the Landlord pursuant to the
Lease shall bear interest at the rate of
2% per month (26.824% per annum) from the date of default.
INITIAL
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ARTICLE 6- ADDITIONAL RENT
--------------------------
6.1 The Tenant shall pay to the Landlord as additional rent (the "Additional
Rent") to the Landlord in each year of the Term of Lease, within ten (10) days
after demand the Tenant's Proportionate Share of:
(a) Common Maintenance Cost;
(b) Cost of Heating, Ventilating and Air-Conditioning;
(c) Cost of Insurance;
(d) Realty Taxes;
(e) an administrative fee equal to 15% of the total of expenses incurred by
the Landlord under paragraphs 6.l (a) to (d) inclusive;
together with the total of:
(f) all taxes, license fees, duties, rates, assessments or imposts of
whatsoever nature levied by any authority whatsoever in respect of the Land and
Building as shall be attributable to the business or property of the Tenant, or
to any thing or things erected or placed in, upon or under, or fixed to the
Demised Premises by or with the consent or permission of the Tenant during the
Term, including all fixtures, machines, equipment and other things of any nature
or description not the property of the Landlord or which may be lawfully removed
by the Tenant;
(g) the total cost of all local improvements and utility charges, if any,
and all charges for water, gas, electric light, heat and power, ventilating and
air-conditioning, telephone, scavenging and garbage and waste collection or
other similar service used, rendered or supplied upon or in connection with the
Demised Premises and the Tenant will indemnify and save the Landlord harmless
against and from any liability or damages on any such account;
(h) Goods and Services Tax ("G.S.T.") payable by the Tenant on Basic Rent
and any of the foregoing payments; and
(i) all other amounts which shall become due and payable pursuant to the
Lease.
6.2 The Tenant shall pay the Landlord upon demand the charges established by
the Landlord from time to time for all supplementary services and utilities
provided to the Tenant by the Landlord or its agents (the "Special Tenant
Expenses"). Such supplementary services and utilities shall include, without
limitation, security, maintenance, repair, janitorial, cleaning and any other
services provided outside ordinary business hours and/or in a manner not
considered by the Landlord as standard. Where any other expenses over and above
normal operations for the Centre is incurred or paid by the Landlord
specifically for the benefit of and at the request of the Tenant, the Tenant
shall pay such expense. The Landlord may charge and the Tenant shall pay a
service fee for providing such services or for incurring such expense.
6.3 The Additional Rent shall, when in default, be deemed to be rent,
receivable as such, and all remedies of the Landlord on non-payment of Basic
Rent shall be applicable thereto. The obligation of the Tenant to pay any of the
aforementioned amounts owing, accrued or unpaid at the end of the Lease Term
shall survive the expiration or sooner termination of the Lease.
6.4 The Tenant covenants to pay the Tenant's taxes and any and all fees or
amounts payable by the
Tenant other than to the Landlord, in connection with the Tenant's business in
or occupation of the Demised
Premises.
INITIAL
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6.5 The Tenant may take advantage of any provisions of law whereby Realty
Taxes or any other amounts payable by the Tenant including amounts payable other
than to or through the Landlord may be paid by installments or deferred for some
portion of the fiscal period to which they relate, provided that no fine,
penalty, interest and expense arising from any failure by the Tenant to pay any
such amount when due and further provided that no fine, penalty or cost is
thereby incurred and the Tenant shall pay any fine, penalty, interest and
expense arising from any failure by the Tenant to pay any such amount when due
and further provided that the Landlord shall be at liberty to pay any such
amount (after five (5) days written notice to the Tenant of its intention so to
do) and may add to the next ensuing installment of rent the amounts so paid
including penalties, charges and interest in connection therewith.
6.6 The Tenant shall have the right to contest at the Tenant's sole expense
the amount or validity of any Realty Taxes or other amounts imposed in respect
of the Demised Premises but nothing herein contained shall be deemed to relieve
the Tenant of its obligation to pay such Realty Taxes or other amounts or to
authorize the Tenant to defer payment of such Realty Taxes, unless such
deferment is lawful and the Landlord consents in writing to such deferment and
the Tenant has paid the full amount in dispute to the Landlord, as security,
including the amount of any possible penalties and interest.
6.7 If the Tenant is contesting in good faith the amount or validity of any
Realty Taxes or any other assessment or impost and has complied with the
provision of this Article and if it becomes necessary for the Landlord to join
in or consent to such proceedings the Landlord shall join or consent as required
but the Tenant shall indemnify the Landlord against all expense arising
therefrom.
6.8 Notwithstanding the provisions of this Article, at any time during the
Term of lease the Landlord may by notice in writing require the Tenant to pay
and the Tenant shall pay to the Landlord, on each date following such notice
upon which installments on account of Basic Rent are payable, such amount or
amounts, which shall not bear interest, as the Landlord may from time to time
estimate as being necessary to provide to the Landlord sufficient funds to pay
the Additional Rent and if the amounts actually charged or payable in any fiscal
period shall exceed the amount or amounts paid by the Tenant for such fiscal
period, the Tenant shall pay to the Landlord forthwith on demand the amount
required to make up the deficiency, and any overpayment made by the Tenant in
such fiscal period shall forthwith upon determination be returned without
interest by the Landlord to the Tenant.
6.9 The Tenant shall upon demand by the Landlord provide to the Landlord
proof, in such form as the Landlord may reasonably require, that the Tenant has
paid when due any and all payments required hereunder to be made by the Tenant
other than to the Landlord
6.10 The Landlord shall at the request of the Tenant provide to the Tenant a
statement showing in reasonable detail the amount of any of the items set out in
paragraph 6.1.
ARTICLE 7- TENANT'S EOUIPMENT
-----------------------------
7.1 At any time and from time to time during the Term the Tenant may
install, maintain and replace in the Demised Premises, any Tenant's Equipment as
the Tenant, in its sole discretion, may desire and, notwithstanding the fact
that the Tenant's Equipment shall nevertheless be and remain at all times the
property of the Tenant. The Tenant may not permanently remove any material part
of the Tenant's Equipment at any time during the Term without the written
consent of the Landlord which shall not be unreasonably withheld.
7.2 The Tenant shall be responsible for and will repair all or any damage to
any part of the Demised Premises, including structural portions thereof, caused
by installation or removal of any of the Tenant's Equipment, fixtures,
alterations, or improvements, and shall restore the Demised Premises to the same
condition as they were in at the Commencement of the Term of Lease.
INITIAL
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7.3 Any of the Tenant's Equipment remaining in the Demised Premises at the
termination of the Lease may be removed and stored by the Landlord, who shall
thereupon have the first and paramount lien against the said Tenant's Equipment
and the Landlord shall not be required to release possession thereof until
payment to the Landlord of the cost of removal and storage of the Tenant's
Equipment and if the Tenant fails to pay such cost within five (5) days of
demand in writing by the Landlord, the Landlord shall have the right to sell the
same and may apply the proceeds firstly in payment of the costs of such removal,
storage and sale and secondly to the Tenant's account.
7.4 The Landlord shall not be responsible for any loss or damage occurring
to the Tenant's Equipment, save and except for loss or damage caused by the
willful neglect of the Landlord or person for whom in law the Landlord is
responsible.
ARTICLE 8-INSURANCE
-------------------
8.1 The Landlord, acting reasonably and as a prudent owner of the Land and
Building, may obtain at the expense of the Tenant to the extent of the Tenant's
Proportionate Share such insurance for the benefit of the Landlord as the
Landlord from time to time considers useful, expedient or beneficial, including,
without limitation, any or all of the following:
(a) a broad form of insurance against all risks of loss or damage to all
property owned by the Landlord relative to the Land and Building, including
coverage for fire, flood and earthquake, or any other form of loss;
(b) insurance against all explosion, rupture or failure of boilers, pressure
vessels, air-conditioning equipment and miscellaneous electrical apparatus on
blanket basis with broad form cover, including repair and replacement;
(c) insurance against loss of insurable gross rentals attributable to all
perils insured against by prudent landlords, including loss of all rents
receivable from tenants in the Building in accordance with the provisions of
their leases including all rents thereunder and all other charges payable as
additional rent thereunder, in such amount or amounts as the Landlord or its
mortgagees from time to time requires;
(d) insurance against third party liability hazards including exposure to
personal injury, bodily injury and property damage on an occurrence basis,
including insurance of all contractual obligations, and covering also actions of
all employees, other persons, sub-contractors and agents while working on behalf
of the Landlord; and
(e) insurance against any other form or forms of loss that the Landlord or
its mortgagees reasonably requires from time to time for like properties
similarly situated and for amounts against which a prudent landlord would insure
itself.
Notwithstanding any contributions by the Tenant to insurance premiums as
provided for in the Lease, no insurable interest is conferred upon the Tenant
under policies carried by the Landlord, the Landlord shall in no way be
accountable to the Tenant regarding the use of any insurance proceeds arising
from any claim, and the Landlord shall not be obliged on account of such
contributions to apply such proceeds to the repair or restoration of that which
was insured and it is hereby declared and agreed that if the Tenant may desire
to receive indemnity by way of insurance for any property, work or thing
whatever, the Tenant shall insure same for its own account and shall not look to
the Landlord for reimbursement or recovery in the event of loss or damage from
any cause, whether or not the Landlord has insured same and recovered therefore.
INITIAL
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8.2 The Tenant shall, during the Term, at its sole cost and expense, take
out and keep in full force and effect, in the name of and with losses payable to
the Tenant, the Landlord and if required by the Landlord or the Landlord's
mortgagees, the following:
(a) property damage insurance, which shall include coverage on property of
every description and kind owned by the Tenant including the Tenant's inventory
and stock in trade, furniture and fixtures and such other property in or forming
part of the Demised Premises or for which the Tenant is responsible or legally
liable pursuant to the terms of the Lease, or which is installed by or on behalf
of the Tenant, including Tenant's Equipment, in an amount at least equal in the
opinion of the Landlord to the full insurable value thereof calculated on a
replacement cost basis without co-insurance requirements and the perils insured
against shall include fire and water damage and a form of broad all-risk
coverage and such additional perils as are normally insured against in the
circumstances by prudent tenants, and as any mortgagee having a security
interest in the Building reasonably requires, or as the Landlord, from time to
time, demands;
(b) glass damage insurance, which shall include coverage for plate glass or
other glass and any high-value lettering or ornamentation thereon, destroyed,
damaged or stolen during the Term of Lease, such insurance to be placed in an
amount at least equal in the opinion of the Landlord to the full insurance value
thereof calculated on a replacement cost basis, without deduction for
depreciation and without co-insurance requirements;
(c) public liability insurance applying to all operations of the Tenant and
which shall include bodily injury liability, liability with respect to the loss
or damage to the property of others, products liability, contractual liability,
contingent liability, non-owned automobile liability and Tenant's legal
liability with respect to the occupancy by the Tenant of the Demised Premises,
such policy to be written on a comprehensive basis with limits of not less than
$2,000,000.00 per occurrence (or such higher limits as the Landlord or its
mortgagees require from time to time) and with a cross liability clause;
(d) business interruption insurance applying to all operations of the
Tenant; and
(e) any other form or forms of insurance in such amounts and against such
perils as the Landlord or the Landlord's mortgagees reasonably require from time
to time.
All policies shall contain an undertaking by the insurers to notify the Landlord
and its mortgagees in writing not less than thirty (30) days prior to any
material change in terms, cancellation or other termination thereof.
8.3 All property damage policies written on behalf of the Tenant shall
contain a waiver of any subrogation rights which the Tenant's insurers may have
against the Landlord and against those for whom the Landlord is, in law,
responsible whether any such damage is caused by the act, omission or negligence
of the Landlord or by those for whom the Landlord is in law responsible and the
Tenant hereby releases and agrees to hold harmless the Landlord from all
liability for any loss or damage to or suffered by the Tenant or its property or
improvements, by oversight, fault or any other cause whatsoever.
8.4 All policies shall be taken out with insurers acceptable to the Landlord
and on policies in form satisfactory from time to time to the Landlord and the
Tenant shall deliver certificates of insurance or, if required by the Landlord
or its mortgagees, certified copies of each such insurance policy to the
Landlord as soon as practicable after the placing of the same.
8.5 If the Tenant fails to take out or to keep in force any such insurance
referred to in this Article 8, or should any such insurance be reasonably
disapproved by either the Landlord or its mortgagees and the Tenant does not
obtain, reinstate or replace insurance, as the case may be, within forty-eight
(48) hours after written notice by the Landlord, or its mortgagees do not
approve of such insurance, (such notice of disapproval to include the reasons
therefor), the Landlord shall have the right, but not the obligation, to effect
such insurance at the sole cost of the Tenant and all expenses of the Landlord
shall be immediately payable by the Tenant to the Landlord as Additional
INITIAL
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Rent hereunder and shall be due on the first day of the next month following
payment thereof by the Landlord, in addition to and without prejudice to any
other rights and remedies of the Landlord under the Lease.
8.6 The Tenant will not keep, use, sell or offer for sale in or upon the
Demised Premises any article which may be prohibited by the fire insurance
policy or any other policies in force from time to time covering the Land and
Building, and further if the Tenant's occupancy O{ or conduct of business in,
the Demised Premises, whether or not the Landlord has consented to the same,
causes any increase in premiums for the insurance carried from time to time by
the Landlord with respect to the Land and Building, the Tenant shall pay the
full amount of any such increase in premiums as Additional Rent within ten (10)
days after bills for such additional premiums are submitted by the Landlord.
ARTICLE 9- REPAIRS
------------------
9.1 own cost and expense:
The Tenant covenants with the Landlord that the Tenant shall at all times during
the Term at its
(a) repair, maintain and keep the Demised Premises in good order and repair,
as a careful owner would do, reasonable wear and tear excepted; and
(b) repair, maintain and keep all equipment and fixtures in the Demised
Premises in good order and repair and replace the same when necessary, as a
careful owner would do, including, without limitations, the floor, windows,
plate glass, glass partitions within the Demised Premises, and any improvements
now or hereafter made to the Demised Premises, reasonable wear and tear and
repairs for which the Landlord is responsible only excepted; provided however
that if such repairs by the Landlord are required as a result of the act or
omission of the Tenant, its servants, agents or employees, the Tenant shall pay
to the Landlord, on demand, the costs of such repairs as Additional Rental and
the Tenant covenants to perform such maintenance, to effect such repairs and
replacements and to decorate at its own cost and expense as and when necessary
or reasonably required so to do by the Landlord.
9.2 The Tenant shall, when necessary and, whether upon receipt of notice
from the Landlord or not, effect and pay for such maintenance, repairs,
replacements or decoration as may be the responsibility of the Tenant under the
foregoing paragraph provided that no maintenance, repairs or replacements to the
structure, any perimeter wall, the store front, the sprinkler system, the
heating, ventilating, air-conditioning, plumbing, electrical or mechanical
equipment or the concrete floor shall be made without the prior written consent
of the Landlord, and in so doing shall use contractors or other workmeii
designated or approved by the Landlord in writing, such approval not to be
reasonably withheld or delayed.
9.3 The Landlord covenants with the Tenant that the Landlord shall at all
times during the Term at the Tenant's cost and expense repair and replace as a
careful owner would do the heating, ventilating, air-conditioning, plumbing,
sprinkler, mechanical and electrical equipment and fixtures (including all the
parts, wiring and pipes thereof) within the Demised Premises.
ARTICLE 10- STRUCTURAL DEFECTS
------------------------------
10.1 The Landlord shall be responsible to make good and repair any
structural defect in the Demised Premises by reason of a pre-existing condition
in or damage done to the Building in which the Demised Premises are located, or
damage caused by negligence of the Landlord, its servants or agents.
10.2 The Landlord shall cause proper maintenance of all Common Areas, at the
Tenant's cost to the extent of the Tenant's Proportionate Share.
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ARTICLE 11- CHANGES ALTERATIONS AND ADDITIONS
---------------------------------------------
11.1 Hereafter and at any time and from time to time during the Term, the
Tenant shall have the right, subject to approval of the Landlord, at the
Tenant's expense, to make such changes and alterations in or to the Demised
Premises as the Tenant shall deem necessary or desirable in connection with the
requirements of its business but no structural change or alteration shall be
undertaken until detailed plans and specifications therefor and a list of the
contractors or tradesmen who the Tenant proposes to hire for the work have first
been furnished to and approved by and consented to in writing by the Landlord.
which approval and consent shall not be unreasonably withheld.
11.2 The Tenant shall be responsible for procuring and paying for all
required municipal and other government permits and authorizations of the
various municipal departments and government divisions having jurisdiction
necessary or advisable in connection with any changes made pursuant to this
Article provided that the Landlord will, at the Tenant's expense, join in
application for such permits and authorizations whenever such action is
necessary.
11.3 All work done in connection with any change or alteration shall be done
promptly and in good and workmanlike manner and in compliance with the valid and
applicable building and zoning laws and with all other valid laws, ordinances,
orders, rules, regulations and requirements of all federal, provincial and
municipal governments, and the appropriate departments, commissions, boards and
officers thereof, and in accordance with the orders, rules and regulations of
the Canadian Fire Underwriters Association, or any other body hereafter
constituted exercising similar functions; the cost of any such change or
alteration shall be paid or secured so that the Demised Premises shall at all
times be free of liens for labour and materials supplied, or claimed to have
been supplied to the Demised Premises.
11.4 All alterations or additions to the existing improvements, other than
Tenant's Equipment, shall upon attachment to the Demised Premises, be deemed a
part thereof, and title thereto shall immediately vest in the Landlord without
any liability on its part to pay for the same provided that the Landlord may
elect to require the Tenant to remove at the expiration of the Lease all or any
part of any improvement installed by or on behalf of the Tenant, in which case
such removal shall be done by the Tenant forthwith, at the Tenant's expense, as
well as all other repairs necessitated by such removal, failing which the
Landlord may carry out the same at the Tenant's expense and without liability
for damage to the improvement so removed.
ARTICLE 12- DAMAGE OR DESTRUCTION
---------------------------------
12.1 In the event that the Demised Premises are damaged or destroyed by any
peril or hazard
recoverable under insurance maintained by the Landlord under Article 8 then the
Landlord shall immediately select
a reputable contractor and if such contractor:
(a) is of the opinion that the damage or destruction is capable of repair
with reasonable diligence within ninety (90) days of the date of the damage then
the Landlord shall deliver notice of its intention to rebuild or repair and
shall repair the damage with reasonable diligence, or
(b) is of the opinion that the damage or destruction is not capable of
repair with reasonable diligence within ninety (90) days of the date of the
damage, then.
i) the Landlord may elect to repair such damage or destruction and shall
then repair the same with reasonable diligence, or
ii) either the Landlord or Tenant may elect to terminate the Lease.
12.2 In case the Demised Premises are damaged or destroyed by any peril or
hazard not recoverable under insurance maintained by the Landlord under Article
8 then the Landlord may either elect to repair such
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damages or destruction and shall then repair the same with reasonable diligence,
or may elect to terminate the Lease.
12.3 If the Lease is not terminated by reason of such damage or destruction
by the Landlord or the Tenant and if such damage or destruction is such as to
render the Demised Premises wholly unfit for occupancy then the Basic Rent and
Additional Rent to be paid by the Tenant hereunder shall xxxxx in whole, or in
proportion to the unoccupiable portion of the Demised Premises, as the case may
be, until the Landlord delivered a notice to the Tenant that the repairs have
been substantially completed at which time all rent payable by the Tenant
hereunder shall recommence.
12.4 If the Landlord herein does not give the Tenant notice of its intention
to either repair such damage or destruction or to terminate the Lease within
thirty (30) days of the damage or destruction then the Tenant may by notice in
writing delivered to the Landlord terminate the Lease, effective the date upon
which such termination notice is received.
12.5 If the Landlord shall elect under any provision of this Article not to
repair such damage or destruction and as a result the Lease terminates, the
Tenant shall cause all insurance proceeds payable in respect of damages to the
Demised Premises to be paid in accordance with the provisions of the policy of
insurance.
ARTICLE 13- USE OF DEMISED PREMISES
-----------------------------------
13.1 The Tenant shall use the Demised Premises only for general office and
for no other purposes without the written consent of the Landlord.
13.2 During the Term, the Tenant in the use, occupation, alteration or
repair of the Demised Premises, or any property used in connection therewith,
shall comply with the requirements of every applicable valid law, ordinance,
rule or regulation and with the orders, rules and regulations of The Canadian
Fire Underwriters Association, or any other body hereafter constituted
exercising similar functions, and with the requirements of all policies of
public liability, fire and the kinds of insurance at the time in force with
respect to the Demised Premises or any part thereof.
13.3 The Tenant covenants and agrees that it will carry on its business on
the Demised Premises continuously during the Term.
ARTICLE 14- CERTAIN RIGHTS AND DUTIES OF LANDLORD
-------------------------------------------------
14.1 The Tenant will permit the Landlord and authorized representatives of
the Landlord to enter into the Demised Premises at any time in case of emergency
and at all reasonable times upon reasonable notice during usual business hours
for the purpose of inspecting the same and of ascertaining whether the Tenant
has failed or neglected to perform any act which it is required to perform under
the provisions of the Lease, and also the Landlord shall be permitted to enter
as aforesaid for the purpose of making any necessary repairs to the Demised
Premises and performing any work therein, which the Tenant has failed to do,
that may be necessary to comply with any valid law, ordinance, rules or
regulations of The Canadian Fire Underwriters, or of any public authority, or
any similar body, or to comply with the requirements of insurance policies then
in force with respect to the Demised Premises, provided that nothing herein
shall imply ~ny duty upon the part of the Landlord to do or to pay for any work
which under any provision of the Lease the Tenant may be required to perform,
and the performance thereof by the Landlord in the event the Tenant does not
perform the same after demand shall not constitute a waiver of the Tenant's
default in failing to perform the same.
14.2 The Tenant upon paying the Basic Rent, Additional Rent and ~l other
charges herein provided for, and observing and keeping the covenants, agreements
and conditions of this Lease on its part to be kept, shall lawfully and quietly
enjoy, hold, occupy, control and manage the Demised Premises during the Term
without hindrance or molestation of the Landlord, or any person or persons
claiming under the Landlord, save as expressly provided by the Lease.
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ARTICLE 15- CONDITIONAL LIMITATIONS DEFAULT PROVISIONS
------------------------------------------------------
15.1 In case the Term or any of the goods and chattels of the Tenant shall
be at any time seized in execution or attachment by a creditor of the Tenant or
the Tenant shall make any assignment for the benefit of creditors or become
bankrupt or insolvent or take the benefit of any Act now or hereafter in force
for bankrupts or insolvent debtors, or, if the Tenant is a corporation and any
order shall be made for the winding-up of the Tenant, or other termination of
the corporate existence of the Tenant or a Receiver or Receiver-Manager is
appointed for the Tenant under any Debenture or other security or by Court Order
or otherwise, then in any such case the Lease shall at the option of the
Landlord immediately cease and terminate and the Term shall immediately become
forfeited and void and the then current month's rent and the next ensuing three
(3) month's rent shall immediately become due and be paid and the Landlord may,
without notice, re-enter and take possession of the Demised Premises as though
the Tenant or other occupant or occupants of the Demised Premises was or were
holding over after the expiration of the Term of Lease without any right
whatsoever.
15.2 If, during the Term, or any renewal thereof, the Tenant shall make
default in the payment of any
rent due under the Lease, and such default shall continue for three (3) days
after notice thereof by the Landlord, the
Lease shall cease and come to an end on the date specified in the said notice,
which date shall not be less than three
(3) days after the delivery of such notice, and the Tenant will then quit
and surrender the Demised Premises to the
Landlord.
15.3 If, during the Term or any renewal thereof the Tenant shall not
observe, perform or keep any of the other covenants in the Lease and such
default shall continue for three (3) days after written notice thereof by the
Landlord to the Tenant, or if the Tenant fails to proceed promptly and with all
due diligence to cure such default, then and in any such case, unless the
default upon which said notice was based has been cured in the meantime the
Lease shall cease and come to an end on the day specified in the said notice,
which date shall not be less than three (3) days after delivery of such notice,
and the Tenant will then quit and surrender the Demised Premises to the
Landlord, provided that in the event of a default which is capable of being
cured but which cannot with due diligence be cured within a period of three (3)
days, the three (3) day period shall be extended for such time as shall allow
the Tenant proceeding promptly and with all due diligence a reasonable
opportunity to cure such default.
15.4 All costs, charges and expenses incurred by the Landlord in recovering
or enforcing payment of monies owing hereunder or in enforcing the terms and
conditions of the Lease, whether or not any default be cured within the time
allowed, including the costs of the Landlord as between solicitor and own client
on a lump sum basis, expenses of taking possession of the Demised Premises and
realizing upon goods and chattels of the Tenant, shall be paid by the Tenant and
such sums shall be deemed to be rent payable under the Lease.
15.5 No remedy conferred upon or reserved to the Landlord herein or by law
or otherwise shall be considered exclusive of any other remedy, but the same
shall be cumulative with and in addition to every other remedy available to the
Landlord, and all such remedies may be exercised concurrently as well as
individually from time to time, and as often as the Landlord shall deem fit.
ARTICLE 16- DISTRESS
--------------------
16.1 The Tenant waives and renounces the benefit of any present or future
statue taking away or limiting the Landlord's right of distress, and covenants
and agrees that notwithstanding any such statute none of the goods and chattels
of the Tenant on the Demised Premises at any time during the Term shall be
exempt from levy by distress for rent in arrears.
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ARTICLE 17- VOIDANCE OF LEASE, VACANT OR IMPROPER USE
-----------------------------------------------------
17.1 It is hereby further declared and agreed between the Landlord and
Tenant that in the case the said Premises or any part thereof become and remain
vacant and unoccupied for the period of fifteen (15) consecutive days, or be
used by any other person or persons, or for any other purpose than as above
provided, without the written consent of the Landlord, the Lease shall, at the
option of the Landlord, cease and be void and the Term of Lease shall expire and
be at an end, anything hereinbefore to the contrary notwithstanding, and the
then current month's rent and an additional three (3) months' rent shall
thereupon become immediately due and payable and the Landlord may re-enter and
take possession of the Demised Premises as though the Tenant or other occupant
or occupants of the Demised Premises, was or were holding over after the
expiration of the Term of Lease, and the balance of the Term of Lease shall be
forfeit; or in such case instead of determining the Lease as aforesaid and
re-entering upon the Demised Premises, the Landlord may take possession of the
Demised Premises or any part of parts thereof, and let and manage the same and
grant any lease or leases thereof upon such terms as to the Landlord may appear
to be reasonable, and demand, collect, receive and distrain for all rental which
shall become payable in respect thereof, and apply the said rental after
deducting all expenses incurred in connection with the Demised Premises and in
the collection of the said rent, including reasonable commission for the
collection thereof and the management of the Demised Premises, upon the rent
hereby reserved, and the Landlord, and every agent acting for the Landlord from
time to time shall, in so acting, be the agent of the Tenant who alone shall be
responsible for any monies except those actually received, notwithstanding any
act, neglect, omission or default, of any such agent acting as aforesaid.
ARTICLE 18- WATER AND GAS DAMAGE
--------------------------------
18.1 The Landlord shall not be liable for any damage to any property at any
time upon the Demised Premises arising from gas, steam, water, rain or snow,
which may leak into, issue and flow from any part of the Building, or from the
gas, water, steam or drainage pipes, sprinklers, or plumbing works of the
Building or from any other place or quarter, or for any damage caused by or
attributable to the condition or arrangement of any electric or other wires in
the Building.
ARTICLE 19- WATER
-----------------
19.1 The Landlord agrees to supply normal water consumed on the Demised
Premises and the cost of such supply will be borne by the Tenant in its
Proportionate Share, but in the event of any abnormal consumption of water,
either by reason of the character of the business carried on by the Tenant, or
by the use of mechanical or other contrivances, the Tenant consents to the
installation of a water meter at his own expense, if necessary, and further
agrees to pay for the excess water consumption on the Demised Premises over and
above his Proportionate Share.
ARTICLE 20- SIGNS
-----------------
20.1 It is further agreed by and between the Landlord and the Tenant that no
sign, advertisement or notice shall be inscribed, painted or affixed by the
Tenant on any part of the outside or inside of the Building whatsoever, unless
of such manner, colour, size and style and in such places upon or in the
Building as shall be consented to in writing by the Landlord and furthermore,
the Tenant, on ceasing to be the Tenant of the Demised Premises, will before
removing his goods and fixtures from the Demised Premises, cause any sign as
aforesaid to be removed or obliterated at his own expense and in a workmanlike
manner to the satisfaction of the Landlord.
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ARTICLE 21- ILLUMINATION OF DISPLAY WINDOWS
-------------------------------------------
21.1 The Tenant shall keep the display windows of the Demised Premises
suitably illuminated during the business hours of the Building as such hours may
be determined from time to time by the Landlord and during such other reasonable
hours as the Landlord may determine.
ARTICLE 22- NUISANCE OR MENACE
------------------------------
22.1 The Tenant will not carry on or perform or suffer or permit to be
carried on, performed or suffered
on the Demised Premises any business practice or act or engage in any activity
which may be deemed a nuisance or
a menace or which in any way may injure the Building.
ARTICLE 23- NO ABATEMENT OF RENT
--------------------------------
23.1 Save and except where the Landlord receives insurance proceeds on
account of the cases noted herein, there shall be no abatement from or reduction
of the Basic Rent or Additional Rent due hereunder, nor shall the Tenant be
entitled to damages, losses, costs or disbursements from the Landlord during the
term hereby created on, caused by or on account of fire (except pursuant to
Article 12 where total damage or destruction shall occur), water, sprinkler
systems, partial or temporary failure or stoppage of heat, light, elevator, live
steam or plumbing service in or to the Demised Premises or in or to the
Building, whether alterations, repairs, renewals, improvements, structural
changed to the Demised Premises or to the Buildings, or the equipment or systems
supplying the said services or from any cause whatsoever; provided that the said
failure or stoppage shall be remedied within a reasonable time.
ARTICLE 24- RIGHT TO SHOW PREMISES
----------------------------------
24.1 The Tenant will permit the Landlord to exhibit the Demised Premises
during the last six (6) months of the Term to any prospective tenant and will
permit all persons having written authority from the Landlord to view the
Demised Premises at all reasonable hours.
ARTICLE 25- ASSIGNMENT SUBLETTING PARTING WITH POSSESSION
---------------------------------------------------------------
25.1 The Tenant shall not assign the Lease or sublet or part with possession
of all or part of the Demised Premises without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, provided however,
such consent to any assignment or subletting shall not relieve the Tenant from
its obligations for the payment of rent and for the full and faithful observance
and performance of the covenants, terms and conditions herein contained.
ARTICLE 26- LANDLORD'S RIGHTS
-----------------------------
26.1 Provided further and notwithstanding anything hereinbefore set forth:
(a) if at the time of any proposed assignment or subletting, and from time
to time, the Tenant proposes to assign the Lease or sublet the Demised Premises,
the Tenant shall send to the Landlord a notice setting forth the name and
address of the proposed assignee or subtenant and such information as to the
nature of its business and its financial responsibility and standing as the
Landlord may reasonably require, and all the terms and conditions of the
proposed assignment or sublease;
INITIAL
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(b) the Tenant shall have the right without the consent of the Landlord to
assign the Lease to a company incorporated or to be incorporated by the Tenant,
provided that the Tenant owns or beneficially controls all of the issued and
outstanding shares in the capital of the company. Such assignment shall,
however, not relieve the Tenant from its obligations for the payment of rent and
for the lull and faithful observance and performance of the covenants, terms and
conditions herein contained; and
(c) no assignment of the Lease shall be valid unless within the ten (10)
days after the execution hereof, the Tenant shall deliver to the Landlord:
i) a duplicate original of such assignment duly executed by the Tenant, and
ii) an instrument duly executed by the assignee, in form satisfactory to the
Landlord wherein such assignee shall assume the Tenant's obligations for the
payment of rent and for the full and faithful observance and performance of the
covenants, terms and conditions herein contained.
ARTICLE 27- PAYMENT OF LANDLORD'S EXPENSES
-----------------------------------------------
27.1 If at any time an action is brought for recovery of possession of the
Demised Premises, or the recovery of Basic Rent or any part thereof, or because
of a breach by act or omission of any other covenant herein contained on the
part of the Tenant, and a breach is established, the Tenant shall pay to the
Landlord all expenses incurred by the Landlord in the enforcement of its rights
and remedies hereunder, including all solicitor's fees.
ARTICLE 28- LANDLORD'S RIGHT OF RELET IN CASE OF VACANCY
-----------------------------------------------------------------
28.1 In the event that the Demised Premises shall be deserted or vacated,
the Landlord shall have the right, if it thinks fit, to enter the same, as the
agent of the Tenant, either by force or otherwise without being liable to any
prosecution therefor, and to relet the Demised Premises as the agent and at the
risk of the said Tenant and to receive Basic Rent therefor.
ARTICLE 29- TRANSFER OF SHARES OF TENANT
----------------------------------------
29.1 If the Tenant is a corporation or if this Lease is assigned as
aforesaid with or without the consent of the Landlord to a corporation, and if
at any time during the Term of Lease any part or all of the corporate shares or
voting rights of shareholders shall be transferred by sale, assignment, bequest,
inheritance, trust, operation of law or other disposition, or treasury shares be
issued so as to result in a change in the control of said corporation by reason
of ownership of greater than fifty (50%) percent of the voting shares of the
corporation or otherwise, then and so often as such a change of control shall
occur, the Tenant shall notify the Landlord in writing of such changes and the
Landlord shall have the right to terminate the Lease and the Term of Lease at
any time after such change of control by giving the Tenant sixty (60) days prior
written notice of such termination. This Article 29 shall not apply to the
Tenant if on and from the date of the Lease the control of the Tenant is
represented by shares listed on a recognized security exchange.
ARTICLE 30 SHARE RECORDS
------------------------
30.1 The Tenant shall, upon request of the Landlord, make available to the
Landlord from time to time for inspection or copying or both, all books and
records of the Tenant which, alone or with other data, show the applicability or
inapplicability of Article 29. If any shareholder or the Tenant shall, upon
request of the Landlord, fail or refuse to furnish to the Landlord any data
requested by the Landlord, which data alone or with other data may show the
applicability or inapplicability of Article 29, the Landlord may terminate this
Lease on sixty (60) days written notice as aforesaid.
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ARTICLE 31 - RULES AND REGULATIONS
----------------------------------
31 1 The Tenant and its clerks, servants and agents will at all times during
the occupancy of the Demised Premises observe and conform to such reasonable
rules and regulations as shall and may be made from time to time by the Landlord
and any such rules and regulations so made shall be deemed to be incorporated in
and form part of the Lease.
ARTICLE 32-INDEMNIFICATION OF LANDLORD
--------------------------------------
32.1 The Tenant shall indemnify the Landlord and save it harmless from and
against any and all loss (including loss of rentals payable by the Tenant
pursuant to the Lease), claims, debts, actions, damages, liability and expense
in connection with loss of life, personal injury or damage to property arising
from any occurrence in, upon or at the Demised Premises, or the occupancy or use
by the Tenant of the Demised Premises or any part thereof, or occasioned wholly
or in part by any act or omission of the Tenant, its agents, contractors,
employees, servants, licensees, concessionaires or invitees, or by anyone
permitted to be on the Demised Premises by the Tenant. In the event that the
Landlord shall, without fault on its part, be made a party to any litigation
commenced by or against the Tenant, or by reason or any act or omission of the
Tenant, its agents, contractors, employees, servants, licensees, concessionaires
or invitees, or by anyone permitted to be on the premises by the Tenant, then
the Tenant shall protect and hold the Landlord harmless and shall pay all costs,
expenses and legal fees incurred or paid by the Landlord in connection with
litigation.
ARTICLE 33- NAME OF BUILDING
----------------------------
33.1 The Tenant shall not refer to the Building by any name other than that
designated from time to time by the Landlord nor use such name for any purpose
other than that of the business address of the Tenant, provided that the Tenant
may use the municipal number of the Building assigned to it by the Landlord
instead of the name of the Building.
ARTICLE 34- ACCEPTANCE OF PREMISES
----------------------------------
34.1 The Tenant shall examine the Demised Premises before taking possession
hereunder and unless the Tenant furnishes the Landlord with a notice in writing
specifying any defect in the construction of the Demised Premises or otherwise
within seven (7) calendar days after such taking of possession, the Tenant shall
conclusively be deemed to have examined the Demised Premises and to have found
them in order, and such taking of possession without giving the notice aforesaid
within such seven (7) days shall be conclusive evidence as against the Tenant
that at the commencement date the Demised Premises where in good order and
satisfactory condition, subject only to latent defects, if any. The Tenant
agrees that there is no promise, representation or undertaking by or binding
upon the Landlord with respect to any alteration, remodeling or redecoration or
of installation of equipment or fixtures in the Demised Premises, except such,
if any, as are expressly set forth in the Lease.
ARTICLE 35- RIGHT OF TERMINATION
--------------------------------
35.1 The Tenant further covenants and agrees that on the Landlord's becoming
entitled to re-enter upon the Demised Premises under any of the provisions of
the Lease, the Landlord in addition to all other rights shall have the right to
determine forthwith the Lease and the Term of Lease by giving notice in writing
addressed to the Tenant of its intention to do so and thereupon Basic Rent and
Additional Rent shall be computed apportioned and paid in full to the date of
such determination of the Lease, and any other payment for which the Tenant is
liable under the Lease, and any other payment for which the Tenant is liable
under the Lease shall be paid and the Tenant shall forthwith deliver upon
possession of the Demised Premises to the Landlord and the Landlord may re-enter
and take possession of the same.
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ARTICLE 36- OVERHOLDING
-----------------------
36.1 If the Tenant shall continue to occupy the Demised Premises after the
expiration of the Lease or without the consent of the Landlord and without any
further written agreement, the Tenant shall be a monthly tenant at double the
rent herein reserved, pro rata in relation to the periods of time during which
the Tenant is an overholding tenant, and on the terms and conditions set out in
the Lease except as to length of tenancy.
ARTICLE 37- DIRECTORY BOARD
---------------------------
37.1 The Tenant shall be entitled to have one name for its company inserted
in the Directory Board of the Building and the Landlord shall design the style
of such identification, and the Director Board shall be located in an area
designated by the Landlord in the main lobby.
ARTICLE 38- ACCRUAL OF BASIC RENT
---------------------------------
38.1 Basic Rent shall be considered as annual and accruing from day to day
and where it becomes necessary for any reason to calculate such rent for an
irregular period of less than one year, any appropriate apportionment and
adjustment shall be made. Where the calculation of any additional rental is not
made until after the termination of the Lease, the obligation of the Tenant to
pay such additional rental shall survive the termination of the Lease and such
amounts shall be payable by the Tenant upon demand by the Landlord.
ARTICLE 39- TRANSFER BY LANDLORD
--------------------------------
39.1 In the event of a sale, transfer or lease by the Landlord of the
Building or a portion thereof containing the Demised Premises or the assignment
by the Landlord of the Lease or any interest of the Landlord hereunder, the
Landlord shall, without further written agreement, to the extent that such
purchaser, transferee or lessee has become bound by the covenants and
obligations of the Landlord hereunder, be freed, released and relieved of all
liability or obligations under the Lease.
ARTICLE 40- LAWS OF PROVINCE APPLY
----------------------------------
40.1 The Lease shall be deemed to have been made in and shall be construed
in accordance with the laws of the Province of British Columbia.
ARTICLE 41- LEASE ENTIRE AGREEMENT
----------------------------------
41.1 The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions, expressed or implied, collateral or
otherwise, forming part of or in any way affecting or relating to the Lease or
the Demised Premises, save as expressly set out in the Lease and that the Lease,
including the Schedules attached and the Rules and Regulations, constitutes the
entire agreement between the Landlord and the Tenant and may not be modified
except as herein explicitly provided or except by subsequent agreement in
writing of equal formality hereto executed by the Landlord and the Tenant and
the Covenantor, if any. Notwithstanding the foregoing the Tenant shall remain
liable to pay for those improvements in the Demised Premises which have been
made by the Landlord for or on behalf of the Tenant and which are in excess of
the work otherwise required to be done by the Landlord, and the Landlord's fee
for supervision and overhead.
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ARTICLE 42- REGISTRATION
------------------------
42.1 The Tenant covenants and agrees that the Landlord shall not be obliged
to execute or deliver the
Lease in form registrable under the Land Title Act, British Columbia or any
--------------
other statue in pari materia therewith and that any requirement to produce plans
acceptable to the Vancouver Land Title Office shall be at the cost and the sole
responsibility of the Tenant.
ARTICLE 43- INTERPRETATION
--------------------------
43.1 Unless the context otherwise requires, the word "Landlord" wherever it
is used herein shall be construed to include and shall mean the Landlord, its
successors and/or assigns, and the word "Tenant" shall be construed to include
and shall mean the Tenant and when there are two or more tenants, or two or more
persons bound by the Tenant's covenants herein contained, their obligations
hereunder shall be joint and several. The word "Tenant" and the personal pronoun
"it" relating thereto and used therewith shall be read and construed as
"Tenants", and "his", "her", "its" or "their" respectively, as the number and
gender of the party or parties referred to each require and the number of the
verb agreeing therewith shall be construed and agree with the said word or
pronoun so substituted. Time shall be of the essence in all respects hereunder.
ARTICLE 44-SEVERABLE
--------------------
44.1 The Landlord and the Tenant agree that all of the provisions of the
Lease are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate provision
hereof Should any provision or provisions of the Lease be illegal or not
enforceable, it or they shall be considered separate and severable from the
Lease and its remaining provisions shall remain in force and be binding upon the
parties hereto as though the said provision or provisions had never been
included.
ARTICLE 45- CAPTIONS
--------------------
45.1 The captions appearing within the body of the Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of the Lease or of any provision hereof.
ARTICLE 46- MISCELLANEOUS COVENANTS
-----------------------------------
46.1 During the Term of Lease, or any renewal thereof, the Tenant shall not
suffer or permit any builders' or other liens or encumbrances for work, labour,
services or material to be filed against or attached to the Demised Premises or
any portion thereof, if any such lien or encumbrance be filed or registered, the
Tenant shall procure discharge of the same within fifteen (15) days after the
same has come to its notice or attention; provided that if the Tenant in good
faith desires to contest the amount or validity of any claim for which a lien is
registered and so notified the Landlord, and if the Tenant shall have deposited
with the Landlord or paid into Court in any action with respect to such lien the
amount claimed plus a reasonable amount for costs, the Tenant may thereupon
defer payment of such claim or discharge of such lien for such period as is
reasonably necessary to determine the claim, provided that neither the Demised
Premises nor the Tenant's leasehold interest hereunder may be allowed to become
liable to forfeiture or sale by reason of such deferment.
46.2 Subject to the provisions of Article 15 hereof, upon termination of the
Lease for any reason whatsoever, except upon the sale of the Land and the
Buildings by the Landlord to the Tenant, the Tenant shall surrender to the
Landlord the Demised Premises and all Building Equipment upon the Demised
Premises, together with all alterations and replacements and additions thereto
(except the Tenant's Equipment) in good order, condition and repair.
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46.3 The Landlord shall have the right to transfer Title to the Demised
Premises at any time or assign its interest under the Lease.
46.4
In the event the Tenant enters into any sublease the Tenant shall not collect
rental from the sublessee more than one month in advance of the due date hereof
46.5 It is agreed by and between the parties hereto that the Landlord may
mortgage the Demised Premises, the said mortgage to be registered in priority to
the Lease, and the Tenant covenants and agrees to execute postponements of any
encumbrances it may place upon the Title to the Demised Premises to protect its
interest under the Lease for the purpose of allowing any such mortgagee to have
priority over any encumbrance the Tenant may register as aforesaid and it is
further agreed that the Landlord may assign the rents hereunder to such
mortgagee and notice to that effect, signed by the Landlord, shall be sufficient
authority for the Tenant to pay the rent, or such portion thereof as is assigned
to the mortgagee and the receipt of the mortgagee shall be a full and adequate
discharge to the Tenant for such payment.
46.6 The failure of either party to insist upon strict performance of any
covenant or condition contained in the Lease or to exercise any right or option
hereunder shall not be construed as a waiver or relinquishment for the future of
any such covenant, condition, right or option; the acceptance of any rent from
or the performance of any obligation hereunder by a person other than the Tenant
shall not be construed as an admission by the Landlord of any right, title or
interest or such person as a sublessee, assignee, transferee or otherwise in the
place and stead of the Tenant.
46.7 Any notice required or permitted to be given shall be in writing and
shall be deemed to have been duly given if delivered by hand or mailing by
prepaid mail as follows:
TO THE LANDLORD:
YALETOWN CENTRE INVESTMENTS LTD.
c/o Lintall Properties Ltd.
A306 - 000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
TO THE TENANT:
YALETOWN MARKETING CORP.
Xxxxx 000, 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
or to such other address as the respective patties may in writing advise and any
such notice shall be deemed to have been given and received, if delivered when
delivered, and if mailed, forty-eight (48) hours following the mailing thereof
in British Columbia, Saturdays, Sundays, holidays and days during interruption
of ordinary mail services excepted.
46.8 The Tenant hereby accepts the Lease subject to the conditions,
restrictions and covenants herein set forth and implied.
46.9 The Lease may be executed in several counterparts, each of which shall
be deemed an original and which together shall constitute one and the same
instrument.
46.10 Wherever the singular or masculine or neuter are used in the Lease,
the same shall be construed to include the plural, neuter, feminine or body
corporate where the context so requires, or where necessary to have application
to a party hereto and the Lease shall be read with all necessary grammatical and
terminological changes thereby rendered necessary.
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46.11 The Lease and the covenant and agreements herein contained shall enure
to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, legal personal representatives, successors and permitted
assignees and sublessees.
46.12 Time shall be of the essence of the Lease and each provision hereof.
46.13 The Tenant shall have the license in common with other Tenants in the
Building to use the area outlined in blue on Schedule "A" attached hereto for
the purposes of loading, unloading and for the use of washroom facilities,
provided that the Tenant agrees to leave any loading area adjacent to the
Buildings free and clear of major obstructions to the other Tenants.
46.14 Nothing herein contained shall be construed as creating the
relationship of principal and agent, or of partners or joint ventures between
the parties hereto, the only relationship being that of the Landlord and Tenant.
46.15 No debris, garbage, trash or refuse shall be placed or left or be
permitted to be placed or left in, on or upon any part of the Common Areas
outside of the Demised Premises, but shall be deposited by the Tenant in areas
and at times in a manner specifically designated by the Landlord from time to
time; should any of the items herein mentioned be of a perishable nature, the
same shall be kept in a properly refrigerated area provided at its cost by the
Tenant; should there be costs for removal of said items additional to the
removal service provided by the City of Vancouver or any independent disposal
services should the City of Vancouver or such independent disposal service
charge additional costs for such service, then the Tenant shall pay those costs.
46.16 In the event that the Landlord, during the term hereof or any renewal
intends to demolish the Building containing the Demised Premises, the Landlord
may give such notice of intent to demolish and after ninety (90) days have
expired after the due delivery of such notice, the Lease shall be at an end
and the Tenant does hereby covenant to deliver up possession.
46.17 In compliance with the City of Vancouver's by-laws the Building is
deemed a non-smoking premise. Smoking is not permitted in the Building including
but not limited to the elevators, stairwells, hallways, washrooms, and
underground parking.
ARTICLE 47- EXPROPRIATION
-------------------------
47.1 If the whole or any part of the Demised Premises or the Building shall
be taken by any public authority under the power of eminent domain or
expropriation, the term hereby granted shall cease from the day possession shall
be taken for such public purposes insofar as the premises so taken comprises
part of the Demised Premises, and the Tenant shall be liable only for rent in
respect of the Demised Premises or part thereof so taken up to the day of the
taking, and if less than the whole be so taken, the Landlord may at its option
cancel and terminate this Lease with respect to the remainder of the Demised
Premises, but notice of such cancellation must be given to the Tenant within
thirty (30) days after notice of such taking has been received by the Landlord
but if the Landlord shall not elect to cancel this Lease, then the Tenant shall
remain in possession of the remainder of the Demised Premises and the rent
thereof shall be reduced in proportion that the floor area of the space taken in
the Demised Premises bears to the whole rentable area of the Demised Premises.
All compensation or damages awarded in respect of such taking of the Demised
Premises and any diminution in value of the remainder thereof shall be the
property of the Landlord, but the Tenant shall be entitled to receive such
compensation or damages as it may be able to establish against such public
authority in respect of loss of its business, depreciation of and cost of
removal of stock and fixtures.
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ARTICLE 48- ESTOPPEL CERTIFICATE
--------------------------------
48.1 The Tenant covenants with the Landlord to provide upon the request of
the Landlord an estoppel certificate binding upon the Tenant, confirming:
(a) that the Tenant has accepted possession of the Demised Premises and that
installments of Basic Rent hereunder are then due and payable from month to
month;
(b) whether or not the Landlord has carried out its obligations hereunder;
(c) that the Lease constitutes the entire agreement in relation to use and
occupation of the Demised Premises between the Tenant and the Landlord; and
(d) such other matters as the Landlord may reasonably require.
ARTICLE 49- OBLIGATIONS OF THE COVENANTOR
-----------------------------------------
49.1 The provisions of this Article shall apply in the event the Lease is
executed by a Covenantor.
49.2 In consideration of the Landlord entering into the Lease with the
Tenant and in further consideration of the sum of ONE ($1.00) DOLLAR now paid by
the Landlord to the Covenantor and other good and valuable consideration (the
receipt of which is hereby acknowledged by the Covenantor), the Covenantor
agrees under seal with the Landlord as follows:
(a) the Covenantor shall be jointly and severally liable with the Tenant as
principal debtor, and not as guarantor or surety, for due payment of all Basic
Rent or other monies payable at the times and in the manner provided in the
Lease;
(b) the Covenantor unconditionally agrees and covenants with the Landlord to
cause the Tenant to duly observe, perform and keep each and every of the other
covenants agreements, stipulations, obligations, conditions and other provisions
of the Lease to be observed, performed and kept by the Tenant at the time and in
the manner provided in the Lease and, in the event of default by the Tenant, to
duly observe, perform and keep such covenants, agreements, stipulations,
obligations and conditions himself;
(c) the Covenantor will indemnify and save harmless the Landlord against and
from all losses, damages, costs and expenses which the Landlord may sustain,
incur, or become liable for by reason of:
(i) the failure, for any reason whatsoever, of the Tenant or the Covenantor
to pay all rent or other monies payable at the times and in the manner provided
in the Lease;
(ii) the failure, for any reason whatsoever, of the Tenant, or the
Covenantor on behalf of the Tenant, to observe, perform and keep each and every
of the other covenants, agreements, stipulations, obligations, conditions and
other provisions of the Lease to be observed performed and kept by the Tenant;
or
(iii) any act, action or proceeding of or by the Landlord for or in
connection with the enforcement of the Lease including without limitation the
provisions of this Article 49.
(d) with respect to the Covenantor's joint and severable liability with the
Tenant as principal debtor in accordance with Article 49.2(a) such obligations
shall survive any act, omission, actions or proceedings which might release or
diminish the liability of any guarantor or surety of the due payment of any
Basic Rent or other monies payable pursuant to the Lease.
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(e) with respect to the Covenantor's obligations pursuant to Article 49:
(i) the Covenantor hereby renounces and waives the benefit of discussion and
compensation and any right to require the Landlord to first proceed against the
Tenant or to pursue any other remedy whatsoever which may be available to the
Landlord before proceeding against the Covenantor;
(ii) the Covenantor acknowledges that any act or failure to act of or by the
Landlord against or in respect of the Tenant or the Demised Premises pursuant to
the terms of the Lease, and, without limiting the generality of the foregoing,
any neglect of forbearance or delay by the Landlord in taking any steps to
enforce the observance, performance and keeping of the covenants, agreements,
stipulations, obligations and other provisions of the Lease, any extension of
time which may be given by the Landlord from time to time to the Tenant and any
release which may be given by the Landlord from time to time to the Tenant shall
not release or diminish the liability of the Covenantor pursuant to Article 49;
(iii) the Covenantor agrees that any alterations of the terms of the Lease
agreed to by the Landlord and the Tenant from time to time, whether material or
not, or any assignment of the Lease by the Landlord or the Tenant or by any
trustee, receiver or liquidator of the Tenant shall not release or diminish the
liability of the Covenantor pursuant to Article 49.
(f) the Covenantor shall execute and deliver such further assurances as the
Landlord may reasonably require including, should the Landlord so elect upon the
occurrence of any event described in Articles 13.1 and 13.2 or upon re-entry or
termination of the Lease in accordance with Article 13, a lease of the Leased
Premises for a term equal in duration to the residue remaining unexpired of the
Term, on the same terms and conditions as the Lease;
(g) in the event of more than one Covenantor to the lease then the term
"COVENANTOR" shall be taken to apply to all such Covenantors, who shall be
jointly and severally liable to the Landlord;
(h) the obligations of the Covenantor shall survive the expiration of the
Term to the extent that there is then any default under the Lease and further,
shall survive any earlier termination of the Term and the Covenantor shall
remain liable on any renewal notwithstanding any variation in the terms of any
such renewal lease
(i) the liability of the Covenantor shall continue notwithstanding any
release or discharge of the Tenant in any receivership, bankruptcy, winding-up,
or other creditor's proceedings or the rejection, disaffirmance or disclaimer of
the Lease in any proceeding or the repossession of the Demised Premises by the
Landlord and the Covenantor shall, at the request of the Landlord, execute a new
lease as a tenant for the period equal to the balance of the Term remaining
hereunder, in the event of any disclaimer of this Lease by the Tenant's trustee.
ARTICLE 50- ADDITIONAL COVENANTS
--------------------------------
-NIL-
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ARTICLE 51-GUARANTEE
--------------------
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and
seals and being companies have affixed their respective corporate seals, duly
attested by their proper officers authorized in that behalf, all as of the day
and year first above written
THE CORPORATE SEAL OF )
YALETOWN CENTRE INVESTMENTS LTD. )
was hereunto affixed in the )
presence of: )
)
------------------------- ) C/S
Authorized Signatory/Director
)
THE CORPORATE SEAL OF )
YALETOWN MARKETING CORP. )
was hereunto affixed in the )
presence of: )
)
------------------------- ) C/S
Authorized Signatory/Director )
Xxxxx Xxxx )
)
)
------------------------- )
Covenantor
Xxxxxxx Page )
)
)
------------------------- )
Covenantor
SIGNED, SEALED AND DELIVERED )
IN THE PRESENCE OF: )
)
)
) -------------------------
) Signature
