Exhibit 10.27
LEASE NO: 117500
CRESTWOOD CORPORATE CENTRE
Richmond, B.C.
LEASE
Between - BENTALL PROPERTIES LTD. and
WESTMINSTER MANAGEMENT CORPORATION
as Landlord
and - BROOKS AUTOMATION (CANADA) CORP.
as Tenant
CRESTWOOD CORPORATE CENTRE
Richmond, B.C.
Table of Contents
Basic Terms: ............................................................ 1
.01 Area of Leased Premises., ...................................... 1
.02 Basic Rent ..................................................... 1
.03 Permitted Use .................................................. 1
.04 Term ........................................................... 2
Article 1 - Demise and Term: ............................................ 2
1.01 Demise and Term ............................................... 2
1.02 Surrender of Leased Premises .................................. 2
Article 2 - Rent: 2
2.01 Basic Rent .................................................... 2
2.02 Additional Rent ............................................... 2
2.03 Adjustment of Additional Rent ................................. 3
2.04 Manner and Place of Payment ................................... 3
2.05 Irregular Calculation of Basic Rent ........................... 3
2.06 Disproportionate Allocation ................................... 3
2.07 Net Lease Intent .............................................. 3
Article 3 - Construction and Fixturing of Leased Premises: .............. 4
3.01 Landlords and Tenants Work .................................... 4
3.03 Payment for Landlord's Work ................................... 4
3.04 Acceptance of Leased Premises ................................. 4
Article 4 - Conduct of Business: ........................................ 5
4.01 Use of Leased Premises ........................................ 5
4.02 Prohibited Uses ............................................... 5
4.04 Signs and Advertising Displays ................................ 5
4.05 Nuisance and Annoyance ........................................ 5
4.06 Coin Operated Machines ........................................ 6
4.07 Loud Speakers and Other Advertising Apparatus ................. 6
4.08 Delivery of Supplies and Materials ............................ 6
4.09 Ordinances and Regulations .................................... 6
4.10 Rules and Regulations ......................................... 6
Article 5 - Repairs: .................................................... 6
5.01 Tenant's Repairs .............................................. 6
5.02 Perimeter Walls and Glass ..................................... 7
5.03 Landlord's Examination of Leased Premises ..................... 7
5.04 Landlord's Right to Repair .................................... 7
5.05 Landlord's Right to Enter for Other Repairs ................... 7
5.06 Landlord's Repairs ............................................ 7
5.07 Landlord's Obligation to Maintain ............................. 8
5.08 Damage and Destruction ........................................ 8
5.09 Qualifications ................................................ 8
5.10 Condition of Expiration ....................................... 9
Article 6 - Common Areas and Common Facilities: ......................... 9
6.01 Tenant's Use of Parking Areas ................................. 9
6.02 Landlord's Right to Remove Vehicles ........................... 9
6.03 Control of Common Areas and Common Facilities ................. 9
6.04 Merchandise on Common Area .................................... 10
6.05 Customer Parking .............................................. 10
Article 7 - Assignment and Sub-letting: ................................. 10
7.01 Prohibitions .................................................. 10
7.02 Control of Corporation ........................................ 11
7.03 Assignment by Landlord ........................................ 11
Article 8 - Insurance: .................................................. 11
8.01 Tenant to Insure .............................................. 11
8.02 Not to Affect Landlord's Insurance ............................ 11
8.03 Landlord to Insure ............................................ 11
Article 9 - Tenant Alterations: ......................................... 12
9.01 Painting, Decorating and Alterations .......................... 12
9.02 Landlord's Property ........................................... 12
9.03 Prohibitions .................................................. 12
9.04 No Liens ...................................................... 13
Article 10 - Public Utilities and Taxes: ................................ 13
10.01 Public Utilities, Business Tax and Machinery Tax ............. 13
10.02 Payment of Real Property Taxes by Landlord ................... 13
10.03 Increase in Real Property Taxes Attributable to Tenant ....... 13
10.04 Goods and Services Tax ....................................... 13
Article 11- Exclusion of Liability and Indemnity: ....................... 14
11.01 Exclusion of Liability ....................................... 14
11.03 Mutual Waiver of Subrogation and Indemnity ................... 15
Article 12 - Landlord's Rights and Remedies ............................. 15
12.01 Default ...................................................... 15
12.02 Consequences of Default ...................................... 16
12.03 Non-Waiver ................................................... 17
12.04 Right of Landlord to Perform Tenant's Covenants .............. 17
12.05 Time for Payment and Legal Costs ............................. 17
12.06 Remedies Cumulative .......................................... 17
Article 13 - Mortgages and Assignment by Landlord: ...................... 17
13.01 Sale or Financing of Development ............................. 17
13.02 Subordination and Acknowledgment ............................. 18
13.03 Offset Statement ............................................. 18
13.04 Registration ................................................. 18
Article 14 - Overholding Tenant: ........................................ 18
14.01 No Tacit Renewal ............................................. 18
Article 15 - Quiet Possession: .......................................... 19
15.01 Quiet Possession ............................................. 19
Article 16 - Legal Relationships: ....................................... 19
16.01 No Partnership ............................................... 19
16.02 Joint and Several Liability .................................. 19
16.03 Successors and Assigns ....................................... 19
Article 17 - Notices: ................................................... 19
17.01 Notices ...................................................... 19
Article 18 - General: ................................................... 20
18.01 Collateral Representations and Agreements ....................... 20
18.02 Management of Development .................................... 20
18.03 Time of the Essence .......................................... 20
18.04 Unavoidable Delays ........................................... 20
18.05 Accord and Satisfaction ...................................... 20
18.06 Competition Act .............................................. 20
18.07 Covenants .................................................... 21
18.08 Consent or Approval of Landlord .............................. 21
18.09 For Lease Signs .............................................. 21
18.10 The Commercial Tenancy Act ................................... 21
18.11 No Exclusivity ............................................... 21
18.12 Schedules .................................................... 21
18.13 Applicable Law ............................................... 21
18.14 Headings ..................................................... 21
18.15 Tenant's Acceptance .......................................... 21
18.16 Arbitration .................................................. 21
18.17 Severability ................................................. 21
Article 19 - Definitions: ............................................... 22
19.01 Additional Rent .............................................. 22
19.02 Area of Leased Premises ...................................... 22
19.03 Basic Rent ................................................... 22
19.04 Basic Term ................................................... 22
19.05 Building ..................................................... 22
19.06 Budding Operation and Maintenance Costs ...................... 22
19.07 Commencement Date ............................................ 23
19.08 Common Areas ................................................. 23
19.09 Common Facilities ............................................ 23
19.10 Development .................................................. 23
19.11 Development Operation and Maintenance Costs .................. 23
19.12 Force Majeure ................................................ 24
19.13 Gross Leasable Area .......................................... 24
19.14 HVAC Costs ................................................... 24
19.15 Landlord's Architect ......................................... 24
19.16 Landlord's Work .............................................. 24
19.17 Lands ........................................................ 24
19.18 Lease ........................................................ 24
19.19 Lease Year ................................................... 24
19.20 Leased Premises .............................................. 25
19.21 Other Buildings .............................................. 25
19.22 Permitted Use ................................................ 25
19.23 Prime Rate ................................................... 25
19.24 Real Property Taxes .......................................... 25
19.25 Rent ......................................................... 25
19.26 Tax Cost ..................................................... 25
19.27 Tenants Proportionate Share .................................. 25
19.28 Tenants Work ................................................. 25
19.29 Term ......................................................... 25
19.30 Year of the Term ............................................. 25
Article 20 - Special Provisions: ........................................ 25
20.01 Deposit ...................................................... 25
20.02 Pre-Authorized Payment Plan .................................. 25
20.03 Rent Abatement ............................................... 26
20.04 Signage ...................................................... 26
20.05 Right of Second Refusal ...................................... 26
20.06 Expansion Option ............................................. 26
20.07 Tenant Improvement Allowance ................................. 27
20.08 Extension of Term ............................................ 27
SCHEDULES: .............................................................. 29
Schedule A Plan of the Premises .................................... 29
Schedule B Landlord's Work ......................................... 32
Schedule C Signage ................................................. 34
Schedule D Indemnity Agreement ..................................... 35
Schedule E Environmental Covenants ................................. 38
THIS LEASE made the 21st day of August, 1996.
BETWEEN:
BENTALL PROPERTIES LTD.,
a body corporate, having its head office
at Suite 3100, Three Bentall Centre, in the
City of Vancouver, in the Province of
British Columbia and
WESTMINSTER MANAGEMENT CORPORATION,
a body corporate, having a business office
at Suite 600, 355 Burrard Street, in the City
of Vancouver, in the Province of British Columbia
(collectively the "Landlord")
OF THE FIRST PART
AND:
BROOKS AUTOMATION (CANADA) CORP.,
a body corporate, having a business address of
Main Floor, 13777 Commerce Parkway, Richmond,
British Columbia.
(the "Tenant")
OF THE SECOND PART
WHEREAS:
(A) by agreement dated July 5, 1996 (the "Agreement") the Landlord and
the Tenant agreed to enter into a lease with respect to the Leased Premises; and
(B) the Landlord has represented to the Tenant that the Landlord is the
registered owner of the Lands, subject however to such liens, charges and
encumbrances as are registered against the title thereto as at the date hereof,
and has constructed, or is in the process of constructing, improvements thereon,
including the Building generally in accordance with the plans set forth in
Schedule "A";
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
rents, covenants and agreements hereinafter reserved and contained, the parties
agree to this Lease of the Leased Premises on the terms and conditions set forth
herein:
BASIC TERMS
.01 Area of Leased Premises: approximately 41,200 square feet.
.02 Basic Rent: years 1 to 4: $576,800.00 per annum,
$48,066.67 per month, based on an annual
rate of $14.00 per square foot of the Area
of Leased Premises; and
years 5 and 6: $597,400.00 per annum,
$49,783.33 per month, based on an annual
rate of $14.50 per square foot of the Area
of Leased Premises.
.03 Permitted Use: Approximately 85% of the Area of Leased
Premises shall be used for commercial
offices and approximately 15% of the Area of
Leased Premises shall be used for light
assembly. The Tenant shall be permitted to
install and operate, subject to the
Landlord's prior approval of design and
location and further subject to such
installation and operation conforming to all
applicable codes and by-laws, the following:
(a) a wave solder machine requiring
venting to the exterior of the
Building;
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(b) pressurized gas bottles, provided they
are inert gases or air such as
nitrogen or helium;
(c) a small cafeteria including steam
tables, microwaves and oven; and
(d) a bike rack in the outdoor area.
.04 Term: Six (6) years commencing on the Commencement
Date and ending on October 31, 2002.
The foregoing Basic Terms are agreed to by the Landlord and the
Tenant and any reference in this Lease to any one of the same shall include the
provisions set forth above with respect thereto and in addition any more
specific definition or reference hereinafter provided.
ARTICLE 1
Demise and Term
1.01 Demise and Term
The Landlord does hereby demise and lease unto the Tenant the Leased
Premises to have and to hold for and during the Term. For so long as the Tenant
duly and punctually pays the Rent, and performs and observes its covenants
herein undertaken, the Tenant shall be entitled for the benefit of the Leased
Premises to enjoy, upon the terms and conditions established or altered pursuant
to this Lease, the use in common with others entitled thereto of the Common
Areas and the Common Facilities.
1.02 Surrender of Leased Premises
Upon the expiration or sooner termination of this Lease, the Tenant
shall vacate and surrender to the Landlord the Leased Premises in accordance
with the provisions of this Lease. Except to the extent as 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
the Tenant:
(a) may at the end of the Term, if it is not in default hereunder,
remove its trade fixtures;
(b) shall at the end of the Term remove such trade fixtures,
furnishings, equipment and inventory as the Landlord shall
require to be removed;
(c) may, if it is not in default hereunder, remove its
furnishings, equipment and inventory at the end of the Term,
and also during the Term in the usual and normal course of its
business where such furnishings or equipment have become
excess for the Tenant's purposes or the Tenant is substituting
therefor new furnishings 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 and any
leasehold improvements therein by the installation and removal.
ARTICLE 2
Rent
2.01 Basic Rent
The Tenant shall pay to the Landlord for each and every Year of the
Term, the Basic Rent specified in Basic Term .02, by equal monthly instalments,
each in advance on the first day of each and every month during the Term, the
first of such monthly instalments to be paid on the Commencement Date. If the
Term commences on a day which is not the first day of a calendar month then the
instalment of Basic Rent payable on the broken portion of a calendar month at
the beginning of the Term shall be calculated at a rate per day of 1/365th of
the annual Basic Rent.
2.02 Additional Rent
The Tenant shall pay to the Landlord for each and every Lease Year
or portion thereof, the Additional Rent for such Lease Year or portion thereof.
The amount of Additional Rent which the Tenant is to pay in each Lease Year or
portion thereof shall be estimated by the Landlord in advance and the Tenant
shall pay to the Landlord such amount in equal monthly instalments in advance
during such Lease Year or the portion thereof.
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The amount of the estimated Additional Rent may be adjusted, from time to time,
during a Lease Year by the Landlord giving notice to the Tenant, in which event
the remaining payments to be made by the Tenant as aforesaid in such Lease Year
shall be adjusted accordingly. All remedies of the Landlord on non-payment of
rent shall be applicable to the Additional Rent and the obligation of the Tenant
to pay any monies pursuant to this Lease shall survive the expiration or sooner
termination of this Lease.
2.03 Adjustment of Additional Rent
Within ninety (90) days after the end of each Lease Year, the
Landlord shall furnish to the Tenant a statement of the actual amount of
Additional Rent payable by the Tenant for such preceding Lease Year and showing
in reasonable detail the information relevant and necessary to the calculation
thereof. If the amount payable by the Tenant as shown on such statement is more
or less than the Additional Rent paid by the Tenant to the Landlord for such
Lease Year pursuant to Article 2.02, the appropriate adjustment as between the
Landlord and the Tenant shall be made within thirty (30) days of delivery of
such statement. Any payment made by the Landlord or made by the Tenant and
accepted by the Landlord in respect of any adjustment made pursuant to this
Article 2.03 shall be without prejudice to the right of the Landlord or the
Tenant to claim a re-adjustment provided such claim if made by the Tenant or the
Landlord is made within one hundred twenty (120) days after, the date of
delivery of the statement referred to in this Article 2.03. The Tenant shall
have the right for a period of one hundred twenty (120) days following receipt
of the aforesaid statement to, at its sole expense, inspect during the
Landlord's normal business hours, subject to the inspection being reasonable in
all the circumstances, any record kept or held by the Landlord of the costs or
expenses claimed by the Landlord for such Lease Year and the Landlord shall make
its said records available accordingly.
2.04 Manner and Place of Payment
All Rent and all other sums payable by the Tenant to the Landlord
hereunder shall be paid to the Landlord at the office of the Landlord
hereinafter set forth, or at such other place as the Landlord may in writing,
from time to time, direct, without notice or demand, except as otherwise
specifically provided herein, and without deduction, set off or abatement for
any reason whatsoever. The Landlord may at its option apply all or any sums
received from or due to the Tenant against amounts due and payable by the Tenant
hereunder in such manner as the Landlord sees fit, regardless of any designation
or instructions by the Tenant to the contrary. The Tenant shall pay to the
Landlord interest at a rate equal to the lesser of the maximum rate permitted by
law or the rate that is three (3%) percent per annum above the Prime Rate on all
arrears of Rent or other sums payable by the Tenant to the Landlord pursuant to
the terms hereof, from, except as otherwise specifically provided herein, the
date of default in payment, until payment is received by the Landlord.
2.05 Irregular Calculation of Basic Rent
If for any reason it is necessary to calculate Basic Rent for a
period of one or more months, but less than a Year of the Term, the same shall
be calculated on the basis of 1/12 of the Basic Rent being payable for each
month. If for any reason it becomes necessary to calculate Basic Rent for a
period of less than one month the same shall be calculated on the basis of 1/365
of the Basic Rent being payable for each day in such period. Without restricting
the generality of the foregoing, in the event the Commencement Date occurs other
than on the first day of a month, the first instalment of Basic Rent paid by the
Tenant in accordance with Article 2.01 shall be based on the period from the
Commencement Date to and including the last day of the month in which the
Commencement Date occurs.
2.06 Disproportionate Allocation
Notwithstanding anything else herein otherwise contained, to the
extent that the Landlord, acting reasonably, determines that an item included in
Additional Rent properly related to only a portion of the Development or to a
portion of the Building, the Landlord may allocate such item to such portion of
the Development or Building, as the case may be, in which event the Tenant's
Proportionate Share, if the Leased Premises are within such portion, shall be
calculated in relation to the Gross Leasable Area of all leasable premises in
such portion.
2.07 Net Lease Intent
Except to that extent otherwise specifically provided herein this
Lease shall be a net lease to the Landlord such that the Basic Rent shall be
received by the Landlord free of all outgoings whatsoever, the Tenant to pay for
its own account all amounts, charges, costs, duties, fees, rates and taxes in
any way relating to the Leased Premises as well as the Additional Rent herein
provided.
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ARTICLE 3
Construction and Fixturing of Leased Premises
3.01 Landlord's and Tenant's Work
The parties agree that the work to be done by the Landlord is as set
out in Schedule "B" hereto and that any additional work shall be Tenant's Work
hereunder.
For greater certainty, the Tenant acknowledges and agrees that it is
accepting possession of the Leased Premises in "as is where is" condition as of
the commencement of the Fixturing Period (as hereinafter defined). Prior to the
Tenant accepting possession of the Leased Premises the Landlord will provide and
install at the Landlord's expense the following Landlord's work:
(a) providing the Leased Premises according to Base Building
Specifications as set out in Schedule "B" hereto;
(b) building standard demising walls;
(c) building standard entrance and exit doors for the Leased
Premises including a door connecting the lunch area to the
outdoor area; and
(d) a scissor lift of the same general specifications as in Xillix
Technologies Corp. premises at 13775 Commerce Parkway. The
Landlord shall also ensure that there is access for five tonne
trucks to the Tenant's loading areas.
The Landlord shall provide the Tenant with a preliminary space plan
at a cost not to exceed $0.10 per square foot of the Area of Leased Premises and
a full set of base building construction drawings including specifications at no
cost to the Tenant.
The Tenant shall be responsible for its own improvements to the
Leased Premises and shall have the right to improve the internal stairwell
connecting the Leased Premises. Should the Tenant require additional utilities
because of the nature of its business, in excess of those already provided to
the Leased Premises, then the Tenant shall be responsible for the cost of
installing and/or supplying such additional utilities, subject to the Landlord's
prior approval. In addition, the Tenant shall have the right to make minor
improvements to the landscaped area outside of the Building and to install
picnic tables near the door adjacent to the Tenant's lunch room, subject to the
Landlord's prior approval.
The Tenant shall be entitled to a Rent free fixturing period (the
"Fixturing Period") which shall expire October 31, 1996 for the purposes of
fixturing and installing improvements in the Leased Premises. All the terms of
this Lease shall be applicable during the Fixturing Period save for the payment
of Rent.
3.03 Payment for Landlord's Work
All work done at the Tenant's request (including the supplying of
materials or equipment) by the Landlord or its contractors or sub-contractors in
or relating to the Leased Premises, over and above Landlord's Work, shall be
paid for by the Tenant in accordance with the terms agreed to by the
Landlord and the Tenant prior to commencement of any such work.
3.04 Acceptance of Leased Premises
The taking of possession of the Leased Premises by the Tenant to
construct the Tenant's Work shall be deemed to be conclusive proof that except
for items noted in a list prepared by the Tenant during a joint inspection by
the Tenant and the Landlord at the time of the taking of such possession and
within thirty (30) days thereafter, the Leased Premises are in the condition
called for by this Lease to the extent that the Landlord is responsible therefor
and that the Landlord has performed all of the Landlord's Work with respect
thereto in a good
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and workmanlike manner. The itemizing of any matter in such list by the Tenant
shall not preclude the Landlord from disputing the categorization of such matter
as a deficiency.
ARTICLE 4
Conduct of Business
4.01 Use of Leased Premises
The Tenant shall not use or occupy the Leased Premises or any part
thereof for any purpose other than the Permitted Use, without consent of the
Landlord first had and obtained.
4.02 Prohibited Uses
The Tenant shall not, at any time, carry on nor suffer, permit or
allow to be carried on in the Leased Premises any fire sale, distress sale,
bankruptcy sale, going-out-of-business sale, or any other business sale designed
to convey to the public that business operations are to be discontinued, an
auction, a pawn business, a mail order business or any other business which
because of the merchandise likely to be sold or the merchandising or pricing
methods likely to be used would, in the reasonable opinion of the Landlord, tend
to lower the character of the Development, or any other business or occupation
which shall be deemed by the Landlord to be a nuisance.
4.04 Signs and Advertising Displays
The Tenant, after first obtaining the written approval of the
Landlord, which approval shall not be unreasonably withheld or delayed, to, or
at the request of the Landlord with instructions as to the specifications,
design, location and method of installation, shall at the expense of the Tenant
install, maintain and operate during such reasonable hours as the Landlord may
determine a sign in accordance with the sign criteria of the Landlord as such
criteria are set out in Schedule "C" hereto. The Tenant shall not erect or
place, or suffer to be erected or placed or maintain any other signs of any
nature or kind whatsoever either on the exterior walls of the Leased Premises or
elsewhere in the Development without the approval of the Landlord. The Tenant
shall not erect or place or suffer to be erected or placed in the display
windows of the Leased Premises, any signs, decoration, lettering or advertising
matter of any kind (including signs placed in the interior of the Leased
Premises for exterior view) without first obtaining the Landlord's written
approval, which approval may not be unreasonably withheld. All signs or other
materials, referred to in this Article 4.04 shall remain the property of the
Tenant and the Tenant shall remove the same at the expiration of the Term or
such shorter period to which the approval relates and shall make good any damage
caused by such installation or removal.
4.05 Nuisance and Annoyance
The Tenant shall not use or occupy the Leased Premises or suffer or
permit the same to be used or occupied for any unlawful purpose, or for any
dangerous, noxious or offensive trade or business, or for any purpose likely to
cause a nuisance or annoyance to the Landlord or any other tenants of the
Development nor undertake any operation likely to cause the same, nor commit or
suffer to be done any waste, damage or disfigurement or injury to the
Development or any part thereof nor permit or suffer the overloading of any
floors therein.
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4.06 Coin Operated Machines
The Tenant shall not have or permit or suffer to be on the Leased
Premises any machines selling merchandise or services or providing
entertainment, whether by coins, credit cards or otherwise except for machines
providing food, cigarettes or beverages for employee use, unless expressly
approved by the Landlord in writing.
4.07 Loud Speakers and Other Advertising Apparatus
The Tenant shall not have or permit any public address, music
broadcast or other sound system which may be heard beyond the limits of the
Leased Premises.
4.08 Delivery of Supplies and Materials
The delivery and shipping of merchandise, supplies, fixtures and
other materials or goods of whatsoever nature to or from the Leased Premises and
all loading, unloading and handling thereof shall be done through such entrances
as designated by the Landlord and at such times and by such means as approved by
the Landlord.
4.09 Ordinances and Regulations
The Tenant shall observe and fulfil the provisions and requirements
of all statutes, orders in council, bylaws, rules and regulations, relating
directly or indirectly to the use of the Leased Premises and shall comply with
all reasonable requirements of any insurer under any policy of insurance
affecting the Development except to the extent such observation, fulfillment and
compliance require structural repairs or changes.
4.10 Rules and Regulations
The Tenant shall observe and comply with and use its best efforts to
cause its employees, agents, licensees and invitees to observe and comply with
any and all rules and regulations communicated by the Landlord to the Tenant,
from time to time, which in the reasonable, good faith judgment of the Landlord
are necessary or desirable in relation to all aspects of the use and occupancy
by the Tenant of the Leased Premises, the Building, the Common Areas and the
Common Facilities including for the reputation, care, safety and appearance of
the Development, the preservation of good order therein and the operation and
maintenance thereof, provided that such rules and regulations do not conflict
with any express provisions of this Lease and are not discriminatory against the
Tenant and are enforced in a uniform manner. The Tenant specifically
acknowledges that the Landlord has and shall have the right to make rules and
regulations as aforesaid.
ARTICLE 5
Repairs
5.01 Tenant's Repairs
The Tenant shall at all times during the Term, at its own cost and
expense, repair, maintain, operate and keep the Leased Premises, all equipment,
fixtures and mechanical systems (including heating, ventilating and
air-conditioning systems) within the Leased Premises or elsewhere (if such
equipment, fixtures or systems are provided for the use or benefit of the Leased
Premises) and any improvements now or hereafter made to the Leased Premises in
good order, firstclass condition and repair (reasonable wear and tear and
repairs which are the Landlord's responsibility pursuant to Article 5.06 hereof
only excepted) in accordance with the statutory building scheme registered
against title to the Lands and without limiting the generality of the foregoing,
the Tenant shall, during the Term, cause such good management and care to be
taken of the Leased Premises and various parts thereof that no material injury
to the same shall occur and all water closets, sinks, heating and
air-conditioning and ventilating apparatus located in the Leased Premises shall
be maintained in a state of efficient and good working order. The Tenant shall
be responsible for all such maintenance, repairs, replacements and such
decorating and shall promptly with due diligence, at its sole expense, carry out
any and all of the foregoing. The Tenant shall be responsible for all janitorial
services respecting the Leased Premises (including the washing of windows
therein) so as to keep the Leased Premises in a clean and tidy condition. The
Landlord shall arrange to have the outside of the exterior windows washed twice
a year with the cost of such cleaning to be included in Additional Rent.
Notwithstanding the foregoing provisions of this Section 5.01, if
the Building is primarily used for office purposes, the task of repairing,
maintaining and operating the heating, ventilating and air-conditioning systems
and other building standard equipment and mechanical systems within or serving
the Leased Premises shall be the responsibility of the Landlord (save only to
the extent that any such equipment or systems are installed
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by or for the sole use of the Tenant) and the costs thereof shall form part of
the HVAC Costs or Building Operation and Maintenance Costs, as the case may be
hereunder.
5.02 Perimeter Walls and Glass
The Tenant shall promptly repair or make whole all damaged glass,
plate glass, doors and windows in the Leased Premises as and whenever the same
is required.
5.03 Landlord's Examination of Leased Premises
The Landlord and any employee, servant, agent or contractor of the
Landlord shall be entitled, upon reasonable notice during normal business hours
and at any time in the event of an emergency, to enter and examine the state of
maintenance, repair, decoration and cleanliness of the Leased Premises, all
equipment and fixtures within the Leased Premises and any improvements now or
hereafter made to the Leased Premises and the Landlord may give notice to the
Tenant requiring that the Tenant perform such maintenance or effect such
repairs, replacements or decoration or cleaning as is the responsibility of the
Tenant and as may be found necessary from such examination.
5.04 Landlord's Right to Repair
In the event that the Tenant fails forthwith after receipt of
written notice thereof, or within such reasonable time thereafter if for any
cause beyond the control of the Tenant it is not reasonable in the circumstances
(it being agreed that lack of finances on the part of the Tenant shall not be
treated as a cause beyond the Tenant's control), to commence and diligently
proceed to perform such maintenance or effect such repairs, replacements,
decorations or cleaning as so specified in any notice given by the Landlord
which is in accordance with the Tenant's obligation hereunder, the Landlord, its
employees, servants, agents or contractors may, but shall not be obligated to,
enter the Leased Premises and at the Tenant's expense, perform and carry out the
same and the Landlord in so doing shall not be liable for inconvenience,
disturbance, loss of business or other damage resulting therefrom and in the
event the Landlord expends any monies pursuant to the provisions of this Article
5.04, the Tenant shall pay the same to the Landlord on demand with a fee of
fifteen (15%) percent of such amount for the Landlord's supervisory function and
in addition shall pay interest on the aggregate of the foregoing at the rate
provided in this Lease from the date of the expenditure of such first mentioned
monies by the Landlord.
5.05 Landlord's Right to Enter for Other Repairs
The Landlord, and any employee, servant, agent or contractor of the
Landlord shall have the right to enter the Leased Premises at all times during
business hours and at any time in the case of an emergency to make such
alterations or repairs as the Landlord is required to make pursuant to the terms
of this Lease or shall deem necessary for the safety, preservation, proper
administration or improvement of the Development or any portion thereof and the
Landlord in so doing, shall not be liable for inconvenience, disturbance, loss
of business or other damage resulting therefrom provided the Landlord acts in a
commercially reasonable manner to mitigate the disruption to the business of the
Tenant and to comply with the Tenant's reasonable security requirements.
5.06 Landlord's Repairs
The Landlord shall, from time to time, throughout the Term:
(a) at its sole cost, carry out as soon as possible in the
circumstances after receipt of notice thereof in writing from
the Tenant, structural repairs to the foundations, exterior
walls (excluding store-fronts and glass), structural
subfloors, the roof, the structural portions of bearing walls
and structural columns and beams which interfere with or
impair the use, occupancy or safety of the Leased Premises;
(b) carry out repairs or replacements to the Common Areas and
the Common Facilities, including the heating, ventilating and
air-conditioning systems forming part of the Common
Facilities; and
(c) repair all damage to the Leased Premises which is covered by
any insurance effected by the Landlord in accordance with the
provisions of Article 8.03 hereof to the extent of the
proceeds of such insurance applicable thereto;
PROVIDED HOWEVER that if any such repairs are necessitated by the
negligence or misconduct of the Tenant, its servants, agents, contractors,
licensees, employees or others for whom in law the Tenant is responsible, the
Tenant shall pay to the Landlord on demand the cost of such repairs and a fee of
fifteen (15%) percent for the Landlord's supervisory function and interest on
the aggregate amount of both of the foregoing from the date of expenditure of
the first mentioned monies by the Landlord.
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PROVIDED FURTHER that in any event the Landlord shall not be
responsible for any damages, loss or injury sustained by the Tenant or any
person or persons claiming through or under it, by reason of defects giving rise
to the need for such repairs or the consequence thereof, including the
inconvenience occasioned to the Tenant by the entry of the Landlord, its
employees, servants, agents, or contractors on the Leased Premises to effect
such repairs, provided the Landlord acts in a commercially reasonable manner
when the presence and extent of any defects comes to its notice.
5.07 Landlord's Obligation to Maintain
The Landlord shall maintain and keep the Common Areas and the Common
Facilities in a state of repair and cleanliness consistent with the standard of
a first class development of a similar nature.
5.08 Damage and Destruction
In the event of damage or destruction of the Leased Premises of the
Building by fire, lightning, earthquake, tempest or other casualty so that:
(a) the same is damaged or destroyed to the extent that the same
cannot with reasonable diligence be rebuilt, repaired or
restored within one hundred and twenty (120) days of the date
of damage or destruction (as determined in the opinion in
writing of the Landlord's Architect, which written opinion
shall be delivered to the Tenant within thirty (30) days of
the occurrence of such damage or destruction) or the estimated
cost of rebuilding, repairing or restoring such damage or
destruction will exceed by $250,000 or more, the anticipated
proceeds of insurance available to the Landlord for that
purpose, then, notwithstanding any other term or condition of
this Lease to the contrary, the Landlord or the Tenant may
terminate this Lease by notice in writing to the Tenant or the
Landlord, as the case may be, given within sixty (60) days of
the occurrence of such damage or destruction, such notice to
be effective as at the date of the damage or destruction if
the Leased Premises are not capable of being utilized by the
Tenant as determined by the Landlord's Architect and otherwise
to be effective at the date specified in such notice of
termination which shall not be less than thirty (30) days
following receipt of such notice by the Tenant and in either
of such events, the Rent hereby reserved shall be forthwith
payable by the Tenant to the effective date of the
termination, the Term hereby granted shall terminate as at
that date and the Landlord may as at the effective date of
termination re-enter and take possession of the Leased
Premises and deal with the same as fully and effectively as if
these presents had not been entered into. But if within the
said period of sixty (60) days, the Landlord and the Tenant
shall not give notice terminating this Lease, then as soon as
reasonably practicable thereafter, the Landlord shall
undertake or continue the rebuilding, repair or restoration
with all reasonable diligence and the Basic Rent hereby
reserved, or a proportionate part thereof depending upon the
proportion of the Leased Premises that are not fit for use by
the Tenant for the intended purpose of this Lease, shall
abate until the Leased Premises have been rebuilt and made fit
for the intended purposes of this Lease;
(b) the same is damaged or destroyed to the extent that the same
can with reasonable diligence be rebuilt, repaired or restored
within one hundred and twenty (120) days of the date of such
damage or destruction (as determined in the opinion in writing
of the Landlord's Architect, which written opinion shall be
delivered to the Tenant within thirty (30) days of the
occurrence of such damage or destruction) and the Landlord is
not otherwise entitled to terminate this Lease pursuant to
Article 5.08(a) the Landlord shall as soon as reasonably
practicable after such determination, undertake or continue
the repair of the same with all reasonable diligence provided,
however, that nothing herein contained shall impose any
obligation upon the Landlord to complete such repair within
the said period of one hundred and twenty (120) days and the
Basic Rent hereby reserved, or a proportionate part thereof
depending upon the proportion of the Leased Premises that are
not fit for use by the Tenant for the intended purposes of
this Lease, shall abate until the Leased Premises have been
rebuilt and made fit for the intended purposes of this Lease.
5.09 Qualifications
(a) For the purposes of Article 5.08 the terms "Leased Premises"
and "Building" shall be deemed not to include the Tenant's
trade fixtures, merchandise, stockin-trade, furniture or any
other improvements installed in the Leased Premises by or on
behalf of the Tenant including the Tenant's Work.
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(b) If the Landlord rebuilds, repairs, or restores the Building or
the Leased Premises as contemplated in Article 5.08 it will
not be required to reproduce exactly the Leased Premises or
the Building or restore the same to the exact condition that
existed before the damage or destruction provided that it
reproduces or restores or rebuilds the same to a comparable
condition and configuration provided that the Tenant's
premises can be reasonably accommodated in the reproduced or
restored building and the Tenant's Rent shall be adjusted to
the correct square footage.
(c) The certificate of the Landlord's Architect in charge of the
rebuilding, repair or restoration shall bind the Landlord and
the Tenant as to the state and proportion of the suitability
for occupancy of the Leased Premises and as to the date upon
which the Landlord's work of reconstruction or restoration is
completed and the Leased Premises fit for the purposes of the
Tenant.
5.10 Condition of Expiration
Upon the expiration of the Term the Tenant shall surrender and
deliver up to the Landlord vacant possession of the Leased Premises, which
Leased Premises at such time, unless the expiration of the Term has occurred
pursuant to Article 5.08(1), shall be in the condition in which the same must be
maintained during the Term pursuant to Articles 5.01 and 5.02 and as the same
must otherwise be restored pursuant to Article 9.02.
ARTICLE 6
Common Areas and Common Facilities
6.01 Tenant's Use of Parking Areas
The Tenant, its employees, suppliers and other persons not licensees
or invitees and having business with the Tenant shall be prohibited from using
for parking of vehicles and loading or unloading of vehicles any part of the
customer parking areas as such may be designed and changed from time to time by
the Landlord. Tenant and employee parking shall be limited to specified times
and places, arranged so as to cause minimal interference to business within the
Development. If requested by the Landlord the Tenant shall supply its employees'
automobile license numbers to the Landlord.
Throughout the Term, the Tenant shall be provided with parking on
the basis of three (3) stalls per 1,000 square feet of the Area of Leased
Premises. The parking stalls shall be located on a random basis around the
perimeter of the Building and shall be free of charge. Of the total allotment of
parking stalls, twelve (12) shall be reserved exclusively for the Tenant's use
with a portion of the reserved stalls being within close proximity to the front
entrance of the Building and the remainder at the rear or side of the Building.
Additional street parking is also available subject to applicable municipal
by-laws.
6.02 Landlord's Right to Remove Vehicles
Should the Tenant, its employees, suppliers or other persons not
licensees or invitees of the Tenant park vehicles in areas not allocated for
that purpose and the prohibition of the use of which is posted, the Landlord
shall have the right to remove the said trespassing vehicles and the Tenant will
save harmless the Landlord from any and all damages arising therefrom and the
Tenant will pay the costs of such removal excluding damage resulting from
negligence or misconduct by the Landlord.
6.03 Control of Common Areas and Common Facilities
The Landlord shall at all times have exclusive control and
management of the Common Areas and the Common Facilities. Such control applies
to signs, use of show windows, and the Tenant's publicity visible from the
Common Areas, as well as to the use made by the Tenant and/or the public of the
Common Areas. The Landlord shall have the right to alter, vary, designate and
redesignate the Common Areas and the Common
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Facilities from time to time and to interfere with the use of the Common Areas
and the Common Facilities to the extent necessary to make such alterations or
variations or any other repairs required or permitted to be made by the Landlord
under this Lease.
6.04 Merchandise on Common Area
In particular, but without in any way limiting the generality of the
provisions of Article 6.03, the Tenant shall not keep, display, or sell any
merchandise on or otherwise obstruct or use any part of the Common Areas on the
Common Facilities, except as permitted by the Landlord and except for displays
included in Development promotions when recognized and permitted by the
Landlord.
6.05 Customer Parking
The Landlord shall at all times during the Term maintain for the
benefit of licensees and invitees of the Tenant parking facilities.
ARTICLE 7
Assignment and Sub-Letting
7.01 Prohibitions
The Tenant shall not assign or transfer this Lease or the Term or
any portion thereof or let or sub-let all or any part of the Leased Premises or
grant any license with respect thereto (any of the foregoing being hereinafter
called a "Transfer") without the written consent of the Landlord first had and
obtained, which consent shall not be unreasonably withheld, provided that it
shall not be unreasonable for the Landlord to withhold its consent where the
Tenant is assigning or subletting at a profit to the Tenant, unless all profit
above Tenant's leasing expenses and inducements shall be paid directly to the
Landlord.
All requests to the Landlord for consent to any Transfer shall be
made to the Landlord in writing together with payment to the Landlord of one
hundred dollars ($100.00) as a deposit on account of all costs incurred by the
Landlord in considering and processing the request for consent and such
information in writing as the Landlord might reasonably require respecting a
transferee including, without limiting the generality of the foregoing, the
name, address, business experience, financial position and banking and personal
references of such transferee, and in the event the transferee is a corporation,
similar information respecting the corporation and its principal shareholders,
officers and directors. In addition, the request shall contain a comprehensive
summary of the terms and conditions upon which the Transfer is to occur.
Notwithstanding any provisions of this Article 7.01 to the contrary,
after the Landlord receives such request and information in writing, it shall
have the option, to be exercised by written notice within thirty (30) days after
the receipt of such request and information, to terminate this Lease and the
Term hereof with respect to the portion of the Leased Premises which is the
subject of the Transfer or alternatively to take an assignment of the Transfer
from the Tenant (to the effect that the Tenant shall surrender to the Landlord
such portion of the Leased Premises and the Landlord shall thereafter have the
right to lease the same directly to the proposed assignee or subtenant) on not
less than thirty (30) days and not more than ninety (90) days notice to the
Tenant. If the Landlord elects to terminate this Lease as aforesaid, the Tenant
shall have the right, to be exercised by written notice to the landlord within
ten (10) days after receipt of such notice of termination, to withdraw the
request for consent to the proposed Transfer, in which case the Tenant shall not
proceed with such Transfer, the notice of termination shall be null and void and
this Lease shall continue in full force and effect in accordance with its terms.
If the Landlord consents to a Transfer, the Landlord shall have the
following rights:
(a) to require the Tenant to enter into an agreement in writing
and under seal to implement all amendments to the Lease to
give effect to the Landlord's exercise of its foregoing
rights; and
(b) to require the Transferee to enter into an agreement directly
with the Landlord to perform and observe all the terms and
conditions of the Tenant pursuant to this Lease.
Whether or not the Landlord consents to any request to Transfer, the
Tenant shall pay reasonable costs incurred by the Landlord in considering any
request for consent to Transfer and in completing any of the documentation
involved in implementing such Transfer.
PROVIDED FURTHER that, notwithstanding any other provisions of this
Article 7.01 to the contrary, neither the Transfer nor the taking of any
documentation in relation thereto shall affect the obligation of the Tenant to
perform and observe all of the terms and conditions in this Lease to be observed
and performed by the Tenant.
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7.02 Control of Corporation
If the Tenant is a corporation, other than a corporation the shares
of which are listed on any recognized stock exchange, effective control of the
corporation shall not be changed directly or indirectly by a sale, encumbrance
or other disposition of shares or otherwise howsoever without first obtaining
the written consent of the Landlord which consent shall not be unreasonably
withheld or delayed; provided that the Landlord's consent shall not be required
for any sale or other disposition of shares by present shareholders to and
between themselves or in the event of any transmission of shares on death and
provided further that the Landlord's consent shall not be unreasonably withheld
where control of the Tenant is to pass to a subsidiary or parent of the Tenant.
Notwithstanding the foregoing, the Landlord's consent Shall not be required (but
the Tenant shall provide the Landlord with notice at the time thereof or as soon
as reasonably possible thereafter) in the case of a bona ride corporate
reorganization.
7.03 Assignment by Landlord
The Landlord may assign all or a part of its interest in this Lease
without the Tenant's knowledge or consent.
ARTICLE 8
Insurance
8.01 Tenant to Insure
The Tenant, at its sole cost and expense, shall take out and keep in
force during the Term, standard fire and extended coverage, and malicious damage
insurance on the stock-in-trade, furniture, fixtures, glass, improvements and
all other contents of the Leased Premises to their full replacement value, and
comprehensive general liability insurance in an amount of not less than five
million dollars ($5,000,000) and tenant's fire legal liability insurance all in
amounts and with policies in a form satisfactory to the Landlord with insurers
acceptable to the Landlord, acting reasonably. The comprehensive general
liability policy shall name the Landlord as an additional insured as its
interest may appear and such comprehensive public liability insurance shall
contain a provision for cross liability as between the Landlord and the Tenant.
Each policy other than public liability policies shall provide that the insurer
shall not have any right of subrogation against the Landlord, its servants,
agents or employees on account of any loss or damage covered by such insurance
or on account of payments made to discharge claims against or liabilities of the
Landlord or Tenant covered by such insurance. The cost or premium for each and
every such policy shall be paid by the Tenant. The Tenant shall use commercially
reasonable efforts to obtain from the insurers under such policies, undertakings
to notify the Landlord in writing at least thirty (30) days prior to any
cancellation or reduction in coverage thereof. If the Tenant fails to take out
or keep in force, or provide to the Landlord proof, as hereafter contemplated,
of such insurance, the Landlord shall have the right to place such insurance on
behalf of the Tenant and to pay the premium therefor and in such event, the
Tenant shall repay to the Landlord the amount paid therefor, which repayment
shall be deemed to be Additional Rent payable on the first day of the next month
following the said payment by the Landlord The Tenant agrees to provide the
Landlord with current copies of the insurance policies or certificates of
insurance as described herein.
8.02 Not to Affect Landlord's Insurance
The Tenant will not upon the Leased Premises do or permit to be
done, or omit to do anything which causes or has the effect of causing the rate
of insurance upon the Development or any part thereof to be increased and if the
insurance rate shall be thereby increased by any action of the Tenant, the
Tenant shall pay to the Landlord on demand as Additional Rent the amount by
which the insurance premiums shall be so increased. The Tenant will not store or
permit to be stored upon or in the Leased Premises anything of a dangerous,
inflammable or explosive nature nor anything which would have the effect of
increasing the Landlord's insurance costs or of leading to the cancellation of
such insurance. It is agreed that if any insurance policy upon the Leased
Premises shall be cancelled by the insurer by reason of the use and occupation
of the Leased Premises or any part thereof by the Tenant or by any assignee,
sub-tenant, concessionaire or licensee of the Tenant, or by anyone permitted by
the Tenant to be upon the Leased Premises, the Landlord may, at its option,
forthwith enter upon the Leased Premises and rectify the situation causing such
cancellation or rate increase, and the Tenant shall forthwith on demand pay to
the Landlord the costs of the Landlord related to such rectification together
with a supervisory fee of twenty (20%) percent of such cost and with interest on
the aggregate of the foregoing from the date funds were expended by the
Landlord.
8.03 Landlord to Insure
The Landlord shall throughout the Term, carry fire insurance with
normal coverage endorsements in respect of the buildings and improvements
forming part of the Development (but excluding the Tenant's trade fixtures,
merchandise, stock-in-trade, furniture or any other improvements installed in
the Leased Premises by or on behalf of the Tenant including the Tenant's Work)
in an amount not less than ninety (90)
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percent of the full replacement cost (excluding the cost of foundations,
footings, underground utilities and architects and other fees associated with
these items) from time to time, on a stated amount basis, provided that such
insurance, without further consent or notice to the Tenant, may have a
deductible amount, provided that such deductible amount shall not exceed three
(3%) percent of the amount insured under such policy or policies. The Landlord
may, but shall not be obligated to, carry such other insurance including public
liability insurance and rental loss insurance related to the Lands or such risks
and perils in relation thereto or the Landlord's interest derived therein as the
Landlord may so determine. All such insurance so obtained by the Landlord shall
be for the sole benefit of the Landlord and the Tenant shall be entitled to no
interest therein or benefit thereof.
ARTICLE 9
Tenant Alterations
9.01 Painting, Decorating and Alterations
The Tenant may, provided it first obtains the consent of the
Landlord, such consent not to be unreasonably withheld, at any time and from
time to time at its expense, paint and decorate, in accordance with the manner
and standard referred to in Article 5.01, the interior of the Leased Premises
and make such changes, alterations, additions and improvements in and to the
Leased Premises as will in the judgment of the Tenant better adapt the Leased
Premises for the purposes of its business; provided, however, that no changes,
alterations, additions or improvements to the structure, any perimeter wall, the
sprinkler system, the heating, ventilating, air conditioning, plumbing,
electrical or mechanical equipment or the concrete floor or the roof shall be
made without the prior written consent of the Landlord, not to be unreasonably
withheld, and without the use of contractors or other qualified workmen approved
by the Landlord. All changes, alterations, additions and improvements, whether
structural or otherwise, shall be carried out in accordance with the reasonable
requirements or rules of the Landlord and shall comply with all applicable
statutes, regulations or by-laws of any municipal, provincial or other
governmental authority. As part of the process of the Landlord's examination and
approval of the Tenant's plans and specifications, materials may, in addition to
being submitted to the Landlord's Architect, be submitted by the Landlord to
other architects, engineers, and special consultants, and progress and
completion of the work may require supervision and/or inspection by the Landlord
or any of the foregoing persons on behalf of the Landlord. At the Tenant's
option, the Landlord will advise the Tenant at such time as to which leasehold
improvements will be required to be removed at the end of the Term. Any fees and
costs incurred by the Landlord in relation to the foregoing will be paid by the
Tenant to the Landlord within fifteen (15) days of billing. .The Tenant shall
pay to the Landlord the amount of the increase for any insurance coverage of the
Landlord directly attributable to any action by the Tenant as hereinbefore in
this Article 9.01 provided and the Tenant covenants that such insurance shall
not thereby be made liable to avoidance or cancellation by the insurer by reason
of such changes, alterations, additions or improvements.
9.02 Landlord's Property
At the expiration of the Term all changes, alterations, additions
and improvements made to or installed upon or in the Leased Premises whether
made pursuant to this Article 9 of otherwise and which in any manner are
attached in, to on or under the floors, walls or ceilings (other than unattached
movable trade fixtures) shall remain upon and be surrendered to the Landlord
with the Leased Premises as part thereof, without disturbance, molestation or
injury and shall be and become the absolute property of the Landlord without any
payment or indemnity by the Landlord or any third party to the Tenant or any
other party. Notwithstanding the foregoing provisions of this Article 9.02,
unless the Lease has been terminated pursuant to Article 5.08(a) the Landlord
may by notice in writing require the Tenant to remove the aforesaid changes,
alterations, additions and improvements in whole or in part, which the Landlord
in accordance with Article 9.01 has previously advised the Tenant will be
required to be removed, in which event the Tenant shall remove the same and
restore to the extent so requested that Leased Premises to the state in which
they were prior to the commencement of any of the Tenant's Work and shall make
good any damage or injury caused to the Leased Premises resulting from such
installation and removal, reasonable wear and tear and the Landlord's repair
obligations only excepted. The obligations of the Tenant under this Article 9.02
shall survive the expiration of the Term.
9.03 Prohibitions
The Tenant, its employees, agents and representatives, are expressly
prohibited from entering upon the roof of the Building or any Other Buildings
for any reason whatsoever. The Tenant shall not make any repairs, openings or
additions to any part of the exterior of the Leased Premises, nor place any
attachments, decorations, signs or displays in or upon any Common Area or the
exterior of the Leased Premises failing which the Tenant will be held
responsible for all ensuing costs and damages whether to remove such items or to
effect repairs needed as a result of such acts and shall pay the cost thereof to
the Landlord forthwith on demand together with a supervisory fee to the Landlord
of twenty (20%) percent of such cost as well as interest on the aggregate of the
foregoing from the date funds are so expended by the Landlord.
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9.04 No Liens
The Tenant covenants with the Landlord that it will not
permit, do, or cause anything to be done to the Leased Premises during the
period of construction and fixturing of the Leased Premises or at any time which
would allow any lien, lis pendens, judgment or certificate of any court or any
mortgage, charge or encumbrance of any nature whatsoever to be imposed or to
remain upon the Leased Premises or the Development. In the event of the
registration of any lien or other encumbrance as aforesaid, the Tenant shall at
its own expense immediately cause the same to be discharged. Should the Tenant
fail to discharge such lien or encumbrance within seven (7) business
days of notice from the Landlord so to do, the Landlord shall be at liberty to
pay and discharge such lien or encumbrance and any amount so paid by the
Landlord together with any disbursements and costs incurred by the Landlord on a
solicitor-client basis together with interest on any such amounts from the date
of expenditure of such funds by the Landlord shall be paid by the Tenant to the
Landlord forthwith.
ARTICLE 10
Public Utilities and Taxes
10.01 Public Utilities, Business Tax and Machinery Tax
The Tenant shall pay and discharge as the same fall due all
charges for utilities provided to or consumed on the Leased Premises during the
Term including telephone installations, water, electrical power, gas and
telephone charges metered separately or charged separately by the authority
providing the same to the Leased Premises as well as any charges of any such
authority based thereon for treatment or other facilities and all other charges
similar in nature, and shall also pay and discharge as the same fall due all
business taxes and rates, floor space and personal property taxes, licence fees
or similar fees which may be imposed by any municipal, legislative or other
authority in respect of the use or occupancy of the Leased Premises or any
personal property situate thereon or in respect of any fixtures, machinery,
equipment or apparatus installed in the Leased Premises (or elsewhere in the
Development by the Tenant).
PROVIDED ALWAYS that if any of the aforesaid utilities are
provided to the Leased Premises through a common metering device or on any other
shared basis with any other premises or portions of the Building or the
Development, the Tenant shall pay to the Landlord forthwith on demand, from time
to time by the Landlord, the Tenant's, share of the cost thereof based on such
allocation as the Landlord may reasonably determine in relation to the other
premises or portions of the Building or the Development being so served.
10.02 Payment of Real Property Taxes by Landlord
The Landlord shall, without derogating from any of the
Tenant's obligations with respect to payment of Additional Rent, pay or cause to
be paid when due to the municipality or other taxing authorities having
jurisdiction all Real Property Taxes, PROVIDED ALWAYS that the Landlord may
postpone such payment to the extent permitted by law if pursuing in good faith
any appeal against the imposition thereof but the Tenant shall not be charged
with any interest penalties caused by the Landlord's delay in payment.
10.03 Increase in Real Property Taxes Attributable to Tenant
The Tenant shall from time to time if requested by the
Landlord, pay to the Landlord forthwith on demand by the Landlord, an amount
equal to any increase in the amount of Real Property Taxes by reason of any
installation, alteration, or use made in or to the Leased Premises by or for the
benefit of the Tenant or any party claiming by or through the Tenant.
10.04 Goods and Services Tax
Despite any other section or clause of this Lease, the Tenant
shall pay to the Landlord upon demand an amount equal to any and all Goods and
Services Tax, it being the intention of the parties that the Landlord shall be
fully reimbursed by the Tenant with respect to any and all Goods and Services
Tax at the full tax rate applicable from time to time in respect of the Rent
payable for the lease of the Leased Premises pursuant to this Lease. The amount
of the Goods and Services Tax so payable by the Tenant shall be calculated by
the Landlord in accordance with the applicable legislation and shall be paid to
the Landlord at the same time as the amounts to which such Goods and Services
Tax apply and is payable to the Landlord under the terms of this Lease or upon
demand at such other time or times as the Landlord from time to time determines.
Despite any other section or clause in this Lease, the amount payable by the
Tenant under this paragraph shall be deemed not to be Rent, but the Landlord
shall have all of the same remedies for and rights of recovery of such amount as
it has for recovery of Rent under this Lease. As referred to herein "Goods and
Services Tax" means the tax imposed under part IX of the Excise Tax Act (Canada)
or any similar tax hereafter imposed in substitution therefor or in addition
thereto.
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ARTICLE 11
Exclusion of Liability and Indemnity
11.01 Exclusion of Liability
It is agreed between the Landlord and the Tenant that:
(a) the Landlord, its agents, servants and employees
shall not be liable for damage or injury to any
property of the Tenant which is entrusted to the care
or control of the Landlord, its agents, servants or
employees;
(b) the Landlord, its agents, servants and employees
shall not be liable nor responsible in any way for
any personal or consequential injury of any nature
whatsoever that may be suffered or sustained by the
Tenant or any employee, agent, customer, invitee or
licensee of the Tenant or any other person who may be
upon the Leased Premises or the Development or for
any loss of or damage or injury to any property
belonging to the Tenant or to its employees or to
any other person while such property is on the Leased
Premises or the Development and, in particular
(without limiting the generality of the foregoing)
the Landlord shall not be liable for any damage or
damages of any nature whatsoever to any such property
caused by the failure by reason of a breakdown or
other cause, to supply adequate drainage, snow or ice
removal, or by reason of the interruption of any
public utility of service or in the event that steam
water, rain or snow may leak into, issue or flow from
any part of the Development or from the water, steam,
sprinkler, or drainage pipes or plumbing works the
same, or from another place or quarter or for any
damage caused by any thing done or omitted by any
tenant, but the Landlord shall, after notice of the
same and where it is within its obligation so to do,
use all reasonable diligence to remedy such
condition, failure or interruption of service when
not directly or indirectly attributable to the
Tenant, and the Tenant shall not be entitled to any
abatement of Rent in respect of any such condition,
failure or interruption of service; and
(c) the Landlord, its agents, servants, employees or
contractors shall not be liable for any damage
suffered to the Leased Premises or the contents
thereof by reason of the Landlord, its agents,
servants, employees or contractors entering upon the
Leased Premises to undertake any examination thereof
or any work therein or in the case of an emergency.
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11.03 Mutual Waiver of Subrogation and Indemnity
The Landlord and the Tenant confirm and acknowledge that it is
their intent that any loss, damage or expense to which either party may be put
(in this Article 11.03, the "Injured Party") as a result of the act, omission or
negligence of the other party (in this Article 11.03, the "Offending Party")
shall be recoverable from the Offending Party, but only to the extent that the
Injured Party cannot recover its loss, damage or expense under policies of
insurance which it is required to take out or has in fact taken out hereunder.
To such end, the parties covenant and agree with each other as follows:
(a) to the extent obtainable, each party will ensure that
all relevant policies of insurance taken out
hereunder will contain a waiver of subrogation rights
which such party's insurer may have against the other
party hereunder and those for whom the other party is
in law responsible, whether or not any loss, damage
or expense is caused by the act, omission or
negligence of such other party or those for whom the
other party is in law responsible;
(b) the Offending Party shall indemnify the Injured Party
and save it harmless from and against any and all
loss, damage and expense whatsoever arising out of
the act, omission or negligence of the Offending
Party or those for whom the Offending Party is in law
responsible; and
(c) notwithstanding the indemnity contained in (b) above,
the Injured Party covenants and agrees to look first
to its own policies of insurance taken out or
required to be taken out hereunder to recover any
loss, damage or expense to which the foregoing
indemnity may apply (it being understood and agreed
that the foregoing indemnity shall not apply to, and
the Offending Party shall have no responsibility for,
any loss, damage or expense against which the Injured
Party is required hereunder to take out insurance or
has in fact taken out insurance).
ARTICLE 12
Landlord's Rights and Remedies
12.01 Default
If and whenever:
(a) the Rent hereby reserved, or any part thereof, be not
paid when due, or there is non payment of any other
sum which the Tenant is obligated to pay under any
provisions hereof, and such default shall continue
for ten (10) days after written notice by the
Landlord requiring the Tenant to rectify the same;
(b) the Term on a material number of the goods, chattels,
equipment or other personal property of the Tenant,
shall be taken or be exigible in execution or
attachment, or if a writ of execution shall issue
against the Tenant;
(c) the Tenant shall become insolvent or commit any act
of bankruptcy or become bankrupt or take the benefit
of any Act that maybe in force for bankrupt or
insolvent debtors, or become involved in a winding-up
proceeding, voluntary or otherwise, or if a receiver
shall be appointed for the business property,
affairs or revenues of the Tenant, or if any
governmental authority should take possession of the
business or property of the Tenant;
(d) the Tenant shall fail to commence business actively
and diligently from and on the Leased Premises within
sixty (60) days after the Commencement Date;
(e) the Tenant shall make a bulk sale of its goods;
(f) the Tenant shall abandon the Leased Premises in whole
or in part;
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(g) this Lease is transferred in violation of the
provisions of Article 7;
(h) the Tenant shall fail to remedy any condition giving
rise to cancellation, threatened cancellation,
reduction or threatened reduction of any insurance
policy on the Development or any part thereof within
the lesser of three (3) days or the effective date of
the cancellation of insurance after notice thereof by
the Landlord; or
(i) the Tenant shall not observe, perform and keep any
other of the covenants, agreements, provisions,
stipulations and conditions herein to be observed,
performed and kept by the Tenant and shall persist in
such failure for ten (10) days after notice by the
Landlord requiring that the Tenant remedy, correct,
desist or comply (or in the case of any such breach
which reasonably would require more than ten (10)
days to rectify unless the Tenant shall commence
rectification within the said ten (10) day period and
thereafter promptly and diligently and continuously
proceed with the rectification of the breach);
then and in any of such cases at the option of the Landlord, the full amount of
the current month's and the next ensuing three (3) month's Rent shall
immediately become due and payable as Additional Rent and the Landlord may
immediately distrain for the same, together with any arrears then unpaid; and
the Landlord may without notice or any form of legal process forthwith re-enter
upon and take possession of the Leased Premises or any part thereof in the name
of the whole and remove and sell the Tenant's goods, chattels, equipment and any
other property therefrom, any rule of law or equity to the contrary
notwithstanding; and the Landlord may seize and sell such goods, chattels,
equipment and other property of the Tenant as are in the Leased Premises or at
any place to which the Tenant or any other person may have removed them in the
same manner as if they had remained and been distrained upon the Leased
Premises; and such sale may be effected in the discretion of the Landlord either
by public auction or by private treaty, and either in bulk or by individual
item, or partly by one means and partly by another, all as the Landlord in its
entire discretion may decide, and the Tenant waives and renounces the benefit of
any present or future statute or amendments thereto taking away or limiting the
Landlord's right of distress.
12.02 Consequences of Default
If and whenever the Landlord is entitled to re-enter the
Leased Premises, the Landlord may terminate this Lease and the Term by giving
written notice of termination to the Tenant or by posting notice of termination
in the Leased Premises, and in such event the Tenant will forthwith vacate and
surrender the Leased Premises. Alternatively, the Landlord may from time to time
without terminating the Tenant's obligations under this Lease, make alterations
and repairs considered by the Landlord necessary to facilitate a sub-letting and
sub-let the Leased Premises or any part thereof as agent of the Tenant for such
term or terms and at such rent or rents and upon such other terms and conditions
as the Landlord in its sole discretion considers advisable. Upon each subletting
all rent and other monies received by the Landlord from the sub-letting shall be
applied first to the payment of indebtedness other than Rent due hereunder from
the Tenant to the Landlord, second to the payment of costs and expenses of the
sub-letting including brokerage fees and solicitors fees and the cost of
alterations and repairs, and third to the payment of Rent due and unpaid
hereunder. The residue, if any, shall be held by the Landlord and applied in
payment of future Rent as it becomes due and payable. If the Rent received from
the subletting during a month and any surplus then held by the Landlord to the
credit of the Tenant is less than the Rent to be paid during that month by the
Tenant, the Tenant will pay the deficiency to the Landlord. The deficiency will
be calculated and paid monthly. No re-entry by the Landlord will be construed as
an election on its part to terminate this Lease unless a written notice of that
termination is given to the Tenant or posted as aforesaid. Despite a subletting
without termination, the Landlord may elect at any time to terminate this Lease
for a previous breach. If the Landlord so terminates this Lease, the Tenant
shall pay to the Landlord on demand therefor:
(a) Basic Rent and Additional Rent accrued due up to the
time of re-entry or termination, whichever is later,
plus the next three (3) months' Rent payable as
Additional Rent as provided in Article 12.01;
(b) all costs payable by the Tenant pursuant to the
provisions of this Lease up until the date of
re-entry or termination, whichever is later;
(c) such expenses as the Landlord may incur or has
incurred in connection with re-entering or
terminating and re-letting, or collecting sums due or
payable by the Tenant or realizing upon assets seized
including brokerage expenses, legal fees and
disbursements determined on a full indemnity basis,
and including the expense of keeping the Leased
Premises in good order and repairing or maintaining
the same or preparing the Leased Premises for
re-letting; and
(d) as liquidated damages for the loss of Rent and other
income of the Landlord expected to be derived from
this Lease during the period which would have
constituted the unexpired portion of the Term had the
Lease not been so terminated, the amount, if any, by
which the rental value of the Leased Premises for
such period established by
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reference to the terms and provisions of this Lease
exceeds the rental value of the Leased Premises for
such period established by reference to the terms and
provisions upon which the Landlord relets them, if
such re-letting is accomplished within a reasonable
time after termination of this Lease, and otherwise
with reference to all market and other relevant
circumstances. Rental value is to be computed in each
case by reducing to present worth at an assumed
interest rate of ten percent (10%) per annum all Rent
and other amounts to become payable for such period
and where the ascertainment of amounts to become
payable requires the same, the Landlord may make
estimates and assumptions of fact which will govern
unless shown to be unreasonable or erroneous;
such obligations of the Tenant to survive the expiration of the Term.
12.03 Non-Waiver
The failure of the Landlord to insist in any one or more cases
upon the strict performance of any of the covenants of this Lease or to exercise
any option herein contained shall not be construed as a waiver or a
relinquishment for the future of such covenant or option and the acceptance of
Rent by the Landlord with knowledge of the breach by the Tenant of any covenants
or conditions of this Lease shall not be deemed to be a waiver of such breach
and no waiver by the Landlord of any provisions of this Lease shall be deemed to
have been made unless expressed in writing by the Landlord.
12.04 Right of Landlord to Perform Tenant's Covenants
If at any time and so often as the same shall happen, the
Tenant shall make default in the observance or performance of any of the
Tenant's covenants herein contained beyond applicable periods of time to cure
the default, then the Landlord may, but shall not be obligated to, without
waiving or releasing the Tenant from its obligations under the terms of this
Lease, itself observe and perform the covenant or covenants in respect of which
the Tenant is in default, and in that connection may pay such monies as may be
required or as the Landlord may reasonably deem expedient, and the Landlord may
thereupon charge all monies so paid and expended by it to the Tenant together
with interest thereon from the date upon which the Landlord shall have paid out
the same; provided however that if the Landlord commences and completes either
the performance of any such covenant or covenants or any part thereof, the
Landlord shall not be obliged to complete such performance or be later obliged
to act in like fashion.
12.05 Time for Payment and Legal Cost
Unless otherwise expressly provided in this Lease, all
reasonable sums and costs paid by the Landlord including costs paid between
solicitor and client, on account of any default by the Tenant under this Lease,
shall be payable to the Landlord by the Tenant forthwith, with interest thereon
at the rate aforesaid from date of payment of such sums or costs by the
Landlord.
Unless otherwise expressly provided in the Lease, all amounts
(other than Rent) required to be paid by the Tenant to the Landlord pursuant to
this Lease shall be payable on demand at the place designated by the Landlord
for payment of Rent and if not so paid within ten (10) days of such demand shall
be treated as Rent in arrears and the Landlord may, in addition to any other
remedy it may have for the recovery of the same, distrain for the amount thereof
as Rent in arrears.
12.06 Remedies Cumulative
All rights and remedies of the Landlord in this Lease
contained shall be cumulative and not alternative and are not dependent the one
on the other and mention of any particular remedy or remedies of the Landlord in
respect of any default by the Tenant shall not preclude the Landlord from any
other remedy in respect thereof, whether available at law or in equity or as
expressly provided for herein.
ARTICLE 13
Mortgages and Assignment by Landlord
13.01 Sale or Financing of Development
The Landlord may sell, transfer, lease, mortgage, encumber or
otherwise dispose of the Development or any portion thereof or any interest of
the Landlord therein, in every case without the consent of the Tenant, and the
rights of the Landlord under this Lease may be mortgaged, charged, transferred
or assigned in conjunction therewith. The Tenant acknowledges that in the event
of the sale or lease by the Landlord of the lands or a portion thereof
containing the Leased Premises or the assignment by the Landlord of this Lease
or of any interest of the Landlord hereunder, to the extent that any such
purchaser, lessee or assignee has assumed the covenants and obligations of the
Landlord hereunder, the Landlord shall, without further written agreement, be
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freed and relieved of liability upon such covenants and obligations except for
the Allowance to be paid to the Tenant under the provisions of Article 20.07
hereof, for which the Landlord shall still remain liable.
13.02 Subordination and Acknowledgment
This Lease shall at the option of the Landlord or the
mortgagee under any mortgage now or hereafter existing affecting the
Development, exercisable at any time and from time to time by the Landlord or
such mortgagee, be either subject and subordinate to such mortgage and
accordingly not binding upon such mortgagee or alternatively rank prior to such
mortgage and accordingly be binding upon such mortgagee. On request at any time
and from time to time of the Landlord or such mortgagee, the Tenant shall either
postpone and subordinate this Lease or any caveat based thereon to such mortgage
with the intent and effect that this Lease and all rights of the Tenant shall be
subject to the rights of such mortgagee as fully as if the mortgage (regardless
of when made) had been made prior to the making of this Lease, or alternatively
to attorn to such mortgagee and become bound to it as its tenant of the Leased
Premises for the then expired residue of the Term and upon the terms and
conditions contained in this Lease, in each case as the Landlord or such
mortgagee may require. Without limiting the foregoing (and notwithstanding that
any previous attornment or subordination in favour of such mortgagee shall have
been given) the Tenant shall execute promptly the appropriate instrument or
postponement and subordination or alternatively the appropriate instrument of
attornment, as the case may be, in order to give effect to the foregoing. Any
reasonable legal fees incurred by the Tenant with respect to the execution of
such instruments shall be paid by the Landlord.
The Landlord shall obtain a non-disturbance agreement from any
mortgagee or other encumbrancer of the Building who has, or may in the future
have, priority to the Tenant's leasehold interest in the Building. Such
non-disturbance agreement shall provide that, notwithstanding the exercise of
any rights by any such mortgagee or other encumbrancer, so long as the Tenant is
not then in default the Tenant shall be entitled to remain undisturbed in its
possession of the Leased Premises, subject to the terms and conditions of this
Lease. Notwithstanding the foregoing provisions of this Article 13.02, the
Tenant will not be required to subordinate or postpone the Lease nor to attorn
to any mortgagee or encumbrancer unless the Landlord has obtained such a
non-disturbance agreement.
13.03 Offset Statement
Either party will, within ten (10) days following request
therefor by the Landlord, from time to time, the Tenant shall execute and
deliver to the Landlord and if required by the Landlord, to any mortgagee,
assignee, or transferee of the Lease or the Development, a certificate in
writing as to the then status of this Lease, including whether it is in full
force and effect, as modified or unmodified, confirming the Rent payable
hereunder, the state of accounts between the Landlord and the Tenant and the
existence or non-existence of defaults and any other matters pertaining to the
Lease which the Landlord shall request be included in such certificate.
13.04 Registration
The Tenant may, at the Tenant's cost with the consent of the
Landlord, such consent not to be unreasonably withheld, register a short form of
Lease against title to the Lands, the content of which shall be mutually agreed
upon and shall exclude any "business terms." The Tenant will, at the cost and
expense of the Tenant, cause this Lease to be registered in the appropriate Land
Title Office in the Province of British Columbia upon the request of the
Landlord in the event that the Landlord requires the same to be registered in
priority to any mortgage, trust deed or trust indenture which may now or at any
time hereafter affect in whole or in part the Leased Premises or the Development
and the Tenant shall execute promptly any certificate or other instrument which
may from time to time be requested by the Landlord to give effect to the
provisions of this Article 13.04.
ARTICLE 14
Overholding Tenant
14.01 No Tacit Renewal
In the event the Tenant remains in possession of the Leased
Premises after the end of the Term and without the execution and delivery of a
new lease, there shall be no tacit renewal of this Lease and the Term hereby
granted and the Tenant shall be deemed to be occupying the Leased Premises as a
Tenant from month to month on the terms and conditions contained herein except
that the Basic Rent shall be one hundred and fifty percent (150%) of the monthly
instalment of Basic Rent required to be paid pursuant to this Lease in the
immediately preceding Year of the Term, but otherwise on the terms and
conditions of this Lease which shall be read with such changes as are
appropriate to a monthly tenancy; provided however that this provision shall not
authorize the Tenant to so overhold where the Landlord has objected to such over
holding or has required the Tenant to vacate the Leased Premises.
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ARTICLE 15
Quiet Possession
15.01 Quiet Possession
Upon the Tenant paying the Rent hereby reserved and all other
charges herein provided and observing, performing and keeping the covenants and
agreements herein contained, the Tenant shall and may peaceably possess and
enjoy the Leased Premises for the Term granted without any interruption or
disturbance from the Landlord or any person or persons lawfully claiming by,
from or under it.
ARTICLE 16
Legal Relationships
16.01 No Partnership
Nothing contained in this Lease nor in any acts of the
Landlord and Tenant pursuant to this Lease shall be deemed to create any
relationship between the parties hereto other than the relationship of Landlord
and Tenant, it being expressly provided that there is no intention to create a
relationship of partners or a joint venture.
16.02 Joint and Several Liability
Should the Tenant comprise two (2) or more persons, each of
them, and not one for the other or others, shall be jointly and severally bound
with the other or others for the due performance of the obligations of the
Tenant hereunder. Where required by the context hereof the singular shall
include the plural and the masculine gender shall include either the feminine or
neuter genders, as the case may be and vice versa.
16.03 Successors and Assigns
This Lease and everything herein contained shall enure to the
benefit of and be binding upon the parties hereto, to successors and assigns of
the Landlord, and the approved successors and assigns of the Tenant.
ARTICLE 17
Notices
17.01 Notices
Any notices herein provided or permitted to be given by the
Tenant to the Landlord shall, except in the event of actual or threatened mail
strike during which time all notices must be delivered, be sufficiently given if
delivered or sent by registered mail, postage prepaid, posted within British
Columbia addressed to the Landlord at:
Bentall Property Management
3100 - Three Bentall Centre
595 Burrard Street
P.O. Box 49001
Vancouver, B.C.
V7X 1B1
or to such other address as might be designated in writing by the Landlord from
time to time, and any notice herein provided or permitted to be given by the
Landlord to the Tenant shall, except in the event of actual or threatened mail
strike during which time all notices must be delivered, be sufficiently given if
delivered or mailed, postage prepaid and posted within British Columbia,
addressed to the Tenant at the Leased Premises.
Notice given as aforesaid, posted in British Columbia, shall
be conclusively deemed to have been given on the third business day following
the day on which such notice was mailed, or if delivered, on the date of
delivery. The Landlord may at any time given in writing to the Tenant of a
change of address for the Landlord and from and after the giving of such notice
the address therein specified shall be deemed to be the address of the Landlord
for the giving of notice hereunder. The word "notice" in this Article 17.01
shall be deemed to include any request, statement, demand, or other writing in
this Lease provided or permitted to be given by the Landlord to the Tenant or by
the Tenant to the Landlord.
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ARTICLE 18
General
18.01 Collateral Representations and Agreements
The Tenant acknowledges that the Leased Premises are taken
without representation of any kind on the part of the Landlord or its agent
other than as set forth herein, that the plans attached as Schedule "A" set
forth the general layout of the Building and shall not be deemed to be a
representation or agreement of the Landlord that the Building will be exactly as
indicated on such plans, and that nothing contained in the Lease shall be
construed so as to prevent the Landlord from varying or altering the location or
size of parking areas, driveways, sidewalks or from erecting additional
buildings or extending buildings after the Commencement Date and without
limiting the foregoing, the Landlord shall have the unrestricted right to add
additional lands to the Development, which upon such addition, these additional
lands will be included within the definition of the Lands and Development
provided such addition does not substantially increase the amount of Development
Operation and Maintenance Costs, Tax Cost, HVAC Costs and Building Operation and
Maintenance Costs to be borne by the Tenant, to construct additional buildings
from time to time on the Lands, add or change any building, or alter the ingress
and egress to the Development and to change the loading or unloading facilities
and service entrances from time to time without in any way being responsible to
the Tenant, provided only that the Landlord shall at all times provide
reasonable access to the Leased Premises across the Lands for the Tenant, its
employees, suppliers, agents, licencees and invitees. Subject to the foregoing
and to the obligations of the Landlord to maintain at all times adequate parking
facilities, the Landlord may transfer or dispose of portions of the Lands to the
owners of abutting property, or dedicate or transfer to the municipal
authorities portions of the Lands for roadwidening and other purposes, and when
and so often as the Landlord shall dispose or transfer or dedicate any portion
of the Lands, then the reference herein to the Lands shall mean and refer to the
portion of the Lands remaining after any such transfer, disposition or
dedication together with any adjacent land which may be acquired by the Landlord
on any such transfer, disposition or dedication. The Tenant further agrees that
no representative of or agent of the Landlord is or shall be authorized or
permitted to make any representation with reference to this Lease, or to vary or
modify this Lease in any way, and that this Lease contains all the agreements
and conditions made between the Landlord and the Tenant hereto respecting the
Leased Premises other than for any provisions of the Agreement, if any, on which
this Lease is based and which are specifically stated therein to survive the
execution and delivery of this Lease. Any addition to or alteration of or change
in this Lease or other agreements hereafter made or conditions created, to be
binding, must be made in writing and signed by the Landlord and the Tenant.
18.02 Management of Development
The Tenant acknowledges to the Landlord that the Development
may be managed by such party or parties as the Landlord may in writing designate
and to all intents and purposes the manager of the Development shall be the
party at the Development authorized to deal with the Tenant on behalf of the
Landlord.
18.03 Time of the Essence
Time shall be of the essence of this Lease.
18.04 Unavoidable Delays
In the event that either party shall be delayed, hindered or
prevented from the performance of any covenant hereunder by Force Majeure, the
performance of such covenant shall be excused for the period during which such
performance is rendered impossible and the time for performance thereof shall be
extended accordingly, but this shall not excuse the Tenant from the prompt
payment of Rent or any other amount required to be paid by the Tenant under the
provisions of this Lease.
18.05 Accord and Satisfaction
No payment by the Tenant hereunder or receipt by the Landlord
of a lesser amount than the payment of Basic Rent or Additional Rent or any
other payments herein stipulated shall be deemed to be other than on account of
the stipulated sum, nor shall any endorsement or statement on any cheque or any
letter accompanying any cheque or payment be deemed an accord and satisfaction,
and the Landlord may accept such cheque or payment without prejudice to the
Landlord's right to recover the balance due or pursue any other remedy provided
in this Lease.
18.06 Competition Act
No provision of this Lease is intended to apply or to be
enforceable to the extent that it might give rise to any offence under the
Competition Act, RSC 1970 Chapter 23 or any statute that may be substituted
therefor, as from time to time amended.
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18.07 Covenants
Each of the terms and conditions of this Lease to be performed
and observed by the Tenant or by the Landlord, as the case may be, is and shall
be construed as a covenant of the party so required to perform and observe the
same.
18.08 Consent or Approval of Landlord
Wherever and whenever the consent, approval or permission of
the Landlord is required by the Tenant pursuant to the terms of this Lease, and
unless otherwise specifically provided, the Landlord shall have the right to
withhold or grant such consent, approval or permission in its sole and arbitrary
discretion. Such consent, approval or permission must be in writing to be
effective, and such consent, approval or permissions must be obtained prior to
the taking of the action to which the same refers.
18.09 For Lease Signs
The Landlord shall have the right during the last six (6)
months of the Term to place upon the Leased Premises, a notice of reasonable
dimensions stating that the Leased Premises are for lease and the Tenant shall
not obscure or remove such notice or permit the same to be obscured or removed.
18.10 The Commercial Tenancy Act
Each of the Landlord and the Tenant waives any and all
provisions of the Commercial Tenancy Act (British Columbia) or any statute that
may be substituted therefore, as from time to time amended, to the extent that
the same are inconsistent with or conflict with the terms and conditions of this
Lease.
18.11 No Exclusivity
This Lease shall not in any way be construed as giving to or
conferring upon the Tenant any rights to carry on any business or undertaking in
or from the Leased Premises to the exclusion of third parties in the
Development.
18.12 Schedules
Any and all schedules attached hereto are deemed to be
incorporated into and form part hereof.
18.13 Applicable Law
This Lease shall be governed by and construed in accordance
with the laws in force in the Province of British Columbia.
18.14 Headings
The index and headings in this Lease are inserted for
convenience of reference only and shall not affect the construction of this
Lease or any provision hereof.
18.15 Tenant's Acceptance
The Tenant hereby accepts the Lease of the Leased Premises to
be held by the Tenant, subject to the conditions, restrictions and covenants set
forth herein.
18.16 Arbitration
If at any time the parties herein are unable within the time
specified, or if no time is specified, then within a reasonable time to reach
agreement on any matter which is to be settled by mutual agreement, then such
matter shall be submitted and referred to a single arbitrator pursuant to the
Commercial Arbitration Act of British Columbia, whose decision shall be final
and binding on the parties hereto.
18.17 Severability
Should any provision of this Lease be unenforceable it shall
be considered separate and severable from the remaining provision of this Lease,
which shall remain in force and be binding as though the said provision had not
been included.
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ARTICLE 19
Definitions
In this Lease, the following words, phrases and expressions
are used with the meanings described as follows:
19.01 "Additional Rent" for a Lease Year or portion thereof means in
addition to the Basic Rent all other amounts which shall become due and payable
hereunder by the Tenant to the Landlord and includes the amounts which is the
aggregate of:
(i) the Tenant's Proportionate Share of the HVAC Costs,
(ii) the Tenant's Proportionate Share of the Building
Operation and Maintenance Costs,
(iii) the Tenant's Proportionate Share of the Development
Operation and Maintenance Costs, and
(iv) the Tenant's Proportionate Share of the Tax Cost.
In each case the items comprising or being deducted from the aforesaid Costs or
Cost are to be allocated to such Lease Year by the Landlord in accordance with
generally accepted accounting practice, provided that if the Term commences
other than at the beginning of a Lease Year or ends other than at the conclusion
of a Lease Year a prorate adjustment of the aforesaid costs for such Lease Year
shall be made based on the length of the Term falling within such Lease Year,
provided further that the Tax Cost shall, unless otherwise specifically stated
in the enabling legislation giving rise thereto, be deemed to accrue equally
from day to day in the calendar year to which the same related and shall, if
adjustment is required as aforesaid, be adjusted on that basis and not on a
straight pro rata basis as provided aforesaid.
19.02 "Area of Leased Premises" means the area of the Leased
Premises measured by the Landlord's Architect following completion of the
Tenant's Work or any subsequent construction by the Tenant predominately in
accordance with the then current standard for floor measurement as established
by the Building Owners and Managers Association (BOMA) modified in order to take
into account unique characteristics of the Building such as sharing of the main
floor showers and locker rooms and other Common Areas which benefit all other
tenants within the Building. The Landlord shall provide the Tenant with a
summary detailing calculations of the Area of Leased Premises. The Area of
Leased Premises when and if it is certified by the Landlord's Architect will
apply instead of the area set forth in Basic Term .O1 and Rent will be adjusted
in accordance with the revised Area of Leased Premises, which adjustment will be
retroactive if the certification does not occur until after the Commencement
Date.
19.03 "Basic Rent" means the annual rent payable by the Tenant
to the Landlord in accordance with Article 2.01 for each Year of the Term, being
the amount set forth in Basic Term .02.
19.04 "Basic Term" means each of those terms defined as such
at the commencement of this Lease.
19.05 "Building" means the building in which the Leased
Premises are located as shown on Schedule "A" hereto.
19.06 "Building Operation and Maintenance Costs" means all of
the Landlord's costs, charges and expenses for operating, maintaining, managing,
repairing (excluding repairs of a structural nature), rebuilding, inspecting,
insuring, supervising and administering the Building including the Common Areas
and Common Facilities of the Building, if any, and includes without limiting the
generality of the foregoing:
(a) the cost of lighting, heating, ventilating,
air-conditioning and supplying water and other
utilities to the Common Facilities and Common Areas,
as aforesaid; cleaning and janitorial services
relating to the Building; repairs and replacements to
the Building other than structural repairs required
to be carried out by the Landlord pursuant to Article
5.06(a) but including any changes made to the
Building, unless structural in nature,
required by any governmental or other agencies which
regulate the operation of the Development, insurance
premiums for any insurance required or permitted to
be carried by the Landlord pursuant to the terms of
this Lease and related only to the Building;
(b) and administration fee to the Landlord equal to
fifteen (15%) percent of the aggregate of the
aforesaid costs, charges and expenses; and
(c) amortization, at rates determined by
the Landlord, but not to exceed the maximum permitted
to the Landlord under the provisions of the Income
Tax Act, Canada, from time to time or any legislation
substituted therefore on the equipment and
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machinery employed in operating or maintaining
repairing or replacing the Common Areas or the Common
Facilities of the Building, if any, and a carrying
cost at the rate of two (2%) percent above prime,
from time to time, of the Canadian chartered bank
designated by the Landlord on the undepreciated
portion of the costs of such equipment and machinery;
and there shall be excluded from such costs the following:
(i) payments of principal and interest under any mortgage
or mortgages on the Development;
(ii) corporate, income, profits or excess profits taxes
assessed upon the income of the Landlord;
(iii) legal fees and disbursements incurred in enforcing
the provisions of other leases of premises in the
Building against other tenants or occupants;
(iv) cost of marketing and leasing out premises in the
building including tenant inducement packages; and
(v) environmental remediation to the extent not caused by
the Tenant or those for whom it is in law liable;
and there shall be deducted from such costs the amount of proceeds actually
recovered by the Landlord from insurance and relating to damage, the cost of
repair of which was included in Building Operation and Maintenance Costs.
19.07 "Commencement Date" means November 1,1996.
19.08 "Common Areas" means those areas located either in the
Building or on the Lands but not in any Other Building, that are not intended
for lease and designated (which designation may be changed from time to time) by
the Landlord as Common Areas set aside by the Landlord for the common or joint
use and benefit of the Tenant, its employees, customers and other entities in
common with others entitled to the use and benefit of such areas in the manner
and for the purposes established or altered pursuant to the terms of this Lease.
19.09 "Common Facilities" means the electrical, heating,
ventilating, air conditioning, plumbing and drainage equipment, any music and
public address systems, installations and any enclosures constructed therefor,
fountains, service rooms, customer and service stairways, escalators, signs,
lamps, standards, public washroom facilities and all other facilities which are
provided and designated (and which designation may be changed from time to time)
by the Landlord for the common or joint use and benefit of the occupants of the
Development.
19.10 "Development" means the Lands, Buildings, Other
Buildings and all buildings and improvements existing on the Lands from time to
time.
19.11 "Development Operation and Maintenance Costs" means all
of the Landlord's costs, charges and expenses of operating, maintaining,
managing, repairing, rebuilding, inspecting, insuring, supervising and
administering the Development, other than the Building or any Other Building,
including the Common Areas and the Common Facilities and include without
limiting the generality of the foregoing:
(a) the cost of lighting, heating, ventilating,
air-conditioning and supplying water and other
utilities to the Common Areas and Common Facilities;
cleaning, janitorial services, snow and ice removal,
striping or repairing parking areas; supervising,
policing and security; painting, planting or
landscaping; operating and maintaining the garbage
compaction equipment, if any; the cost of
maintaining, repairing, replacing or leasing the
pylon signs and public address, intercom, music, and
alarm systems; repairs and replacements to the
Development, business taxes, place of business taxes
and other taxes levied in respect thereof or fairly
attributable to the Common Areas or the Common
Facilities; insurance premiums for any insurance
required or permitted to be carried by the Landlord
pursuant to the terms of this Lease other than for
the Building or any Other Building; supplies,
personnel wages and payroll expenses:
(b) an administration fee to the Landlord equal to
fifteen (15%) percent of the aggregate of the
aforesaid costs, charges and expenses; and
(c) amortization, at rates determined by the Landlord,
but not to exceed the maximum permitted to the
Landlord under the provisions of the Income Tax Act
(Canada) from time to time or any legislation
substituted therefor, on the equipment and
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machinery employed in operating, maintaining,
repairing or replacing the Common Areas or the Common
Facilities and a carrying cost at the rate of two
(2%) percent above prime, from time to time, of the
Canadian chartered bank designated by the Landlord,
on the undepreciated portion of the costs of such
equipment and machinery;
and there shall be excluded from such costs the following:
(i) payments of principal and interest under any mortgage
or mortgages on the development;
(ii) corporate, income, profits or excess profits taxes
assessed upon the income of the Landlord;
(iii) Building Operation and Maintenance Costs;
(iv) fines, penalties or like amounts payable by the
Landlord as a consequence of its breach of any of its
obligations under this Lease; and
(v) costs of repairing damage to or destruction of
tangible property which results from a failure by the
Landlord to maintain the Development or any of its
equipment, facilities or systems in a reasonable
manner, consistent with quality management of similar
buildings of similar size;
and there shall be deducted from such costs the amount of proceeds actually
recovered by the Landlord from insurance and relating to damage, the cost of
repair of which was included in Development Operation and Maintenance costs.
19.12 "Force Majeure" means any cause beyond the control of
the either party delaying, hindering or preventing the Landlord from performing
any term, covenant or act required hereunder and, without limiting the
generality of the foregoing, includes lock-outs (including lock-outs decreed or
recommended for its members by a recognized contractors' association of which
the Landlord is a member or to which the Landlord is otherwise bound), strikes,
labour disputes, inability to procure materials or services, restrictive
governmental laws or regulations, fire, act of God, riots, insurrection,
sabotage, rebellion and war.
19.13 "Gross Leasable Area" means the aggregate floor area
(expressed in square meters or square feet), from time to time, determined by
the Landlord's Architect of all premises leased to or intended to be leased to
tenants and located within the area to which the measurement is being applied.
19.14 "HVAC Costs" includes with respect to the Building:
(a) all of the Landlord's costs, charges and expenses of
operating, maintaining, managing, replacing,
repairing and supervising the apparatus for heating,
ventilating and air conditioning installed in the
Building, from time to time, other than those part of
such apparatus installed by or on behalf of the
Tenant or any other tenant (the "HVAC System"); and
(b) an administrative fee equal to fifteen (15%) percent
of the total of the costs, charges and expenses
incurred by the Landlord under the preceding
provision of this definition;
19.15 "Landlord's Architect" means an architect or engineer
from time to time selected by the Landlord for the purpose of making any
certification or determination in accordance with the terms of this Lease.
19.16 "Landlord's Work" means the work specified in Schedule
"B" hereto.
19.17 "Lands" means those lands located in the City of
Richmond, in the Province of British Columbia legally described as:
Lot 1 Parcel Identifier 012333433
Lot 2 Parcel Identifier 012333476
Lot 3 Parcel Identifier 012333506
All of Section 5, Block 4 North Range 5 West and
Section 32, Block 5 North Range 5 West
New Westminster District Plan 79650
19.18 "Lease" means this agreement, including any and all
schedules attached hereto as the same may be amended from time to time.
19.19 "Lease Year" means each calendar year in which a portion
of the Term falls, provided that the Landlord, if it deems the same convenient
or necessary for its accounting purposes, may, from time to time, by notice to
the Tenant alter the Lease Year to any other twelve (12) month period in which a
portion of the Term
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falls by specifying an annual date, being the first day of a calendar month,
upon which a subsequent Lease Year is to commence and in such event the current
Lease Year shall terminate on the day preceding the specified date.
19.20 "Lease Premises" means that portion of the Building outlined
in red on Schedule "A" hereto, subject to such minor variations as may occur in
the course of construction of the Building by the Landlord.
19.21 "Other Buildings" means any building or buildings existing on
the Lands from time to time containing premises that are leased or intended to
be leased to tenants, but excluding the Building.
19.22 "Permitted Use" means the use set forth in Basic Term .04.
19.23 "Prime rate" means the rate of interest expressed as an
annual rate, at the relevant time or times, determined by the Toronto-Dominion
Bank at its main branch in Vancouver, British Columbia, as a reference rate for
commercial demand loans to its major commercial borrowers determined in
Canadian dollars and made by such bank in Canada an adjusted from time to time.
19.24 "Real Property Taxes" means all general special, local
improvement, school and other taxes, levies, rates and charges levied, assessed
or imposed against the Development or any part thereof and all business taxes,
assessments, rates and levies, including any corporation capital tax, levied,
assessed or imposed on the Landlord in respect of the ownership or management
of the Development by municipal or other governmental authority having
jurisdiction, whether of a nature now or hereafter levied, assessed or imposed,
together with the cost to the Landlord of contesting, appealing or negotiating
the same in good faith but excluding those taxes and fees of the Tenant or
other tenants referred to in Article 10.01 hereof.
19.25 "Rent" means Basic Rent and Additional Rent.
19.26 "Tax Cost" means the cost of Real Property Taxes.
19.27 "Tenant's Proportionate Share" means:
(a) in relation to each of Building Operation and
Maintenance Costs and HVAC Costs the proportion that
the Area of the Leased Premises is of the Gross
Leasable Area of the Building; and
(b) in relation to Development Operation and Maintenance
Costs, and Tax Cost, the proportion that the Area of
the Leased Premises is of the Gross Leasable Area of
the Development.
19.28 "Tenant's Work" has the meaning set out in Article 3.01
hereof.
19.29 "Term" means the term of the Lease, as set out in Basic
Term .04.
19.30 "Year of the Term" means each successive twelve (12) month
period of the Term, the first of which commences on the Commencement Date.
ARTICLE 20
Special Provisions
20.01 Deposit
The Landlord acknowledges receipt of $102,862.67 (the
"Deposit") to be held without interest for application by the Landlord firstly
against payment of first months' Rent, including Goods and Services Tax with
the balance to be held as security for the due and proper performance by the
Tenant of all of the terms, covenants and conditions of this Lease, including
the payment of all Rent due hereunder. At the expiration of the Term, any
portion of the Deposit that remains outstanding and unapplied by the Landlord
shall be repaid by the Landlord to the Tenant within 90 days of the expiration
of the Term. Notwithstanding the foregoing, if the Tenant fails to execute and
deliver this Lease within 90 days of receipt from the Landlord or fails to take
possession of the Leased Premises by December 1, 1996, the Landlord may, at its
sole option, terminate this Lease, whereupon the Deposit shall be retained by
the Landlord as liquidated damages on account of the Tenant's default and not
as a penalty.
20.02 Pre-Authorized Payment Plan
The Tenant authorizes the Landlord to withdraw monthly Rent
payments from the Tenant's account by of direct withdrawals, as may be arranged
from time to time between financial institutions administering the Tenant's
and the Landlord's accounts.
The Tenant further agrees to execute and provide whatever
further documentation, account information, cancelled cheques or otherwise,
which are reasonably requested by the Landlord in the administration of a
pre-authorized payment procedure for monies owing or accruing due as Rent under
this Lease.
20.03 Rent Abatement
Notwithstanding anything to the contrary herein contained, but
subject to the Tenant being in occupancy and not in default, the Tenant shall
not be required to pay Rent with respect to a portion of the Leased Premises,
such portion being 10,000 square feet for the period commencing on the
Commencement Date and ending twelve (12) months thereafter. For greater
certainty, notwithstanding the partial Rent abatement set out above, the Tenant
acknowledges and agrees that it shall remain responsible for the payment of Rent
on the balance of the Area of Leased Premises.
20.04 Signage
The Landlord, at its expense, shall include the Tenant's name
on the main directory in the lobby of the Building as well as on the general
directory at the entrance to the Development.
The Tenant, at its expense, shall have the exclusive right to
install two (2) backlit sign upon the raised facia panel at the Building
parapet, location to be mutually agreed to by both parties, on either side of
the Building visible from Highway 91 and Commerce Parkway. The Tenant
acknowledges that any approved signage shall consist of individual letters or
logos and no illuminated sign boxes shall be permitted for installation.
20.05 Right of Second Refusal
The Tenant, when in occupancy and not then in default
hereunder, shall have an ongoing right of second refusal subject to Macdonald
Dettwiler and Associates Ltd. waiving its existing right of first refusal to
lease all of the space set out below (the "Additional Space") on the terms and
conditions and in the manner as follows:
(a) The Landlord shall give notice in writing to the
Tenant if the Additional Space is available for
leasing, which notice shall set out:
(i) the Additional Space;
(ii) the Basic Rent payable;
(iii) the Term;
(iv) the inducements.
(b) Upon such notice being given, the Tenant shall have
seven (7) calendar days within which to agree in
writing to lease the Additional Space upon terms set
out in the said notice and, failing such agreement,
the Landlord may lease the same to any third party at
an effective rent considering inducements equal to or
greater than that offered to the Tenant and this
right of second refusal shall cease.
(c) Unless otherwise specified in the notice, the terms
of any lease entered into pursuant to this paragraph
shall be the same as herein contained, save for the
premises leased, Rent, any Landlord Work (or other
inducements) and any further rights of second
refusal.
(d) The provisions hereof shall not apply to any portion
of the Additional Space occupied by an existing
tenant, whether pursuant to a lease renewal or
extension agreement, overholding, or otherwise, it
being understood and agreed that the Tenant shall
only have a right of refusal to lease those portions
of the Additional Space which have become vacant and
available for lease by the Landlord.
(e) The Additional Space referred to herein shall be any
vacant space or space available for lease by the
Landlord on the main floor of the Building contiguous
to the Leased Premises.
20.06 Expansion Option
The Tenant shall be granted a one (1) time option to expand
into approximately five thousand (5,000) rentable square feet of space on the
second floor of the Building (the "Expansion Space"). This option is subordinate
to Hewlett-Packard (Canada) Ltd.'s option on the Expansion Space which option is
to be exercised on or before January 31,1997 and is also subordinate to the
existing and continuing rights of refusal to the Expansion Space by Macdonald,
Dettwiler and Associates Ltd.
In the event this option to expand is exercised, the Expansion
Space shall form part of the Leased Premises and terms of such Expansion
Space shall be on the same terms as are then applicable for
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that portion of the Leased Premises being 10,000 square feet, including the
Allowance and timing of Basic Rent payable.
20.07 Tenant Improvement Allowance
Provided the Tenant is not in default, the Landlord shall provide the
Tenant with an improvement allowance (the "Allowance") which shall be solely
applied to fixturing and modifying the Leased Premises. The Allowance is
payable in two (2) instalments as follows.
The first instalment (the "First Instalment") is equal to the sum of
$25.00 per square foot of the Area of the Leased Premises being approximately
31,200 square feet plus applicable Goods and Services Tax. The First Instalment
is payable by the Landlord to the Tenant after provision of satisfactory
evidence of payment of all of the Tenant's contractors in full by the Tenant
including but not limited to a statutory declaration that all fees and payments
resulting from the modification and fixturing of the Leased Premises have been
made and provided this Lease has been fully executed and the Tenant has fully
occupied the Leased Premises and commenced business operations therein.
The second instalment (the "Second Instalment") is equal to the sum of
$20.00 per square foot of the Area of the Leased Premises being 10,000 square
feet plus applicable Goods and Services Tax. The Second Instalment is payable
by the Landlord to the Tenant on or after September 1, 1997 and provided the
Landlord receives satisfactory evidence of payment of all of the Tenant's
contractors in full by the Tenant including but not limited to a statutory
declaration that all fees and payments resulting from the modification and
fixturing of the Leased Premises have been made and provided this Lease has
been fully executed and the Tenant has fully occupied the Leased Premises and
commenced business operations therein.
All modifications to the Leased Premises are to the Tenant's account
and are subject to the Landlord's prior written approval. It is understood that
the Landlord's contractor shall be utilized for all changes to the mechanical,
electrical and life safety systems. All design and consultants' fees and permits
are to the Tenant's account.
The Tenant shall spend a minimum of $17.00 per square foot of the Area
of Leased Premises of the Allowance on the fixturing and modifying of the Leased
Premises.
It is understood and agreed that the Allowance shall not be applied
towards items such as office furnishings, system furniture, indoor plants, and
office and communications equipment.
20.8 Extension of Term
(a) If:
(i) the Tenant is not then in material default during the Term;
and
(ii) the Tenant gives the Landlord not less than six (6) months'
written notice and not more than eighteen (18) months'
prior to the expiry of the initial Term, of its intention
to extend the Term;
then the Tenant will have the right to extend the Term upon the
expiry of the initial Term for a further period of three (3)
years (the "First Extended Term") upon the same terms and
conditions as are set out in this Lease, except that:
(iii) there will be no further right to extend the Term except as
provided in subparagraph (b) hereunder;
(iv) any Allowance, shall not apply to the First Extended Term;
(v) the Basic Rent payable by the Tenant during the First
Extended Term shall be negotiated and agreed upon between
the parties prior to the commencement of the First Extended
Term based on the prevailing fair market Basic Rent at the
commencement of the First Extended Term for similarly
improved premises of similar size, quality, use and
location in office buildings of a similar size, quality and
location in Richmond, British Columbia Failing such
agreement, then within two (2) months prior to the
commencement of the First Extended Term, Basic Rent shall
be determined by arbitration under the provisions of the
Commercial Arbitration Act (British Columbia) and in
accordance with this Article 20.08.
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(b) Provided the Tenant has, pursuant to subparagraph (a) above, validly
exercised its option to extend the Term for the First Extended Term,
and if:
(i) the Tenant is not then in material default during the First
Extended Term; and
(ii) the Tenant gives the Landlord not less than six (6) months'
written notice and not more than eighteen (18) months' prior to
the expiry of the First Extended Term, of its intention to
further extend the Term;
then the Tenant will have the right to extend the Term upon the expiry
of the First Extended Term for a further period of three (3) years
(the "Second Extended Term") upon the same terms and conditions as are
set out in the Lease, except that:
(iii) there will be no further right to extend the Term;
(iv) any Allowance, shall not apply to the Second Extended Term;
(v) the Basic Rent payable by the Tenant during the Second Extended
Term shall be negotiated and agreed upon between the parties
prior to the commencement of the Second Extended Term based on
the prevailing fair market Basic Rent at the commencement of
the Second Extended Term for similarly improved premises of
similar size, quality, use and location in office buildings of
a similar size, quality and location in Richmond, British
Columbia Failing such agreement, then within two (2) months
prior to the commencement of the Second Extended Term, Basic
Rent shall be determined by arbitration under the provisions of
the Commercial Arbitration Act (British Columbia) and in
accordance with this Article 20.08.
If the Tenant fails to exercise the forgoing options to extend the
Term in accordance with this Article 20.08, or if the other conditions set out
in this Article 20.08 are not satisfied, these options to extend shall be null
and void.
IN WITNESS WHEREOF the parties hereto have executed this agreement by
their respective duly authorized officers in that behalf, as of the day and year
first above written.
BENTALL PROPERTIES LTD.
Per: /s/ [ILLEGIBLE]
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Authorized Signatory
Per: /s/ [ILLEGIBLE]
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Authorized Signatory
THE CORPORATE SEAL of
WESTMINSTER MANAGEMENT CORPORATION
was hereunto affixed in the presence of:
/s/ [ILLEGIBLE]
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Authorized Signatory
/s/ M. Brightman
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Authorized Signatory
THE CORPORATE SEAL of
BROOKS AUTOMATION (CANADA) CORP.
was hereunto affixed in the presence of:
/s/ [ILLEGIBLE]
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Authorized Signatory
/s/ Rose M. Vallee
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Authorized Signatory
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