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EXHIBIT 2.1
999 West Hastings Street
Vancouver, British Columbia
LEASE
Landlord: LORD REALTY HOLDINGS LIMITED
acting by its attorney in fact,
POLARIS REALTY (CANADA) LIMITED
Tenant: NAM TAI ELECTRONICS (CANADA) LTD.
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TABLE OF CONTENTS
ARTICLE 1 - BASIC TERMS
1.01 Basic Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 - PREMISES
2.01 Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 - TERM
3.01 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 4 - RENT
4.01 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4.02 Adjustment of Rent when Areas are Measured or Changed . . . . . . . . . . . . . . . . . . . . . . 2
4.03 Rent Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 5 -TENANT'S COVENANTS
5.00 Tenant's Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.01 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.02 Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.03 Waste and Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.04 Insurance Risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.05 Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.06 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.07 Fire Exit Doors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.08 Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5.09 Overholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.10 Signs and Directory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.11 Inspection and Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.12 Showing Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 6 - LANDLORD'S COVENANTS
6.00 Landlord's Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.01 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.02 Interior Climate Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.03 Elevators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.04 Entrances; Lobbies, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.05 Washrooms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.06 Janitor Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.07 Maintenance of Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 7 - REPAIR AND DAMAGE AND DESTRUCTION
7.01 Landlord's Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.02 Tenant's Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7.03 Abatement and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 8 - TAXES AND OPERATING COSTS
8.01 Landlord's Tax Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.02 Tenant's Tax Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.03 Tenant's Tax Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.04 Postponement, etc. of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.05 Receipts, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.06 Allocation of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.07 Operating Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE 9 - UTILITIES AND ADDITIONAL SERVICES
9.01 Water and Telephone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.02 Electricity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.03 Additional Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.04 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 10 - LICENSES, ASSIGNMENTS AND SUBLETTINGS
10.01 Licenses, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10.02 Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10.03 Change in Control of Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 11 - FIXTURES AND IMPROVEMENTS
11.01 Installation of Fixtures and Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.02 Liens and Encumbrances on Fixtures and Improvements . . . . . . . . . . . . . . . . . . . . . . . 10
11.03 Removal of Fixtures and Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 12 - INSURANCE AND LIABILITY
12.01 Landlord's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12.02 Tenant's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12.03 Limitation of Landlord's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.04 Limitation of Tenant's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.05 Indemnity of Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 13 - SUBORDINATION, ATTORNNENT, REGISTRATION AND CERTIFICATES
13.00 Tenant's Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.01 Sale or Financing of Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.02 Subordination and Attornment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.03 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.04 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.05 Assignment by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 14 - OCCURRENCE OF DEFAULT
14.01 Unavoidable Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.02 No Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.03 Part Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 15 - REMEDIES OF LANDLORD AND TENANTS DEFAULT
15.01 Remedying by Landlord, Non-payment and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 14
15.02 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15.03 Right of Re-entry on Default or Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.04 Termination and Re-entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.05 Payment of Rent, etc. on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.06 Waiver of Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.07 Re-letting, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 16 - EVENTS TERMINATING LEASE
16.01 Cancellation of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.02 Prohibited Occupancy, Bankruptcy, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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ARTICLE 17 - MISCELLANEOUS
17.01 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.02 Extraneous Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.03 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.04 Area Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.06 Frustration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.07 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17.09 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17.10 Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17.11 Special Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 18 - DEFINITIONS
18.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Additional Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Cost of Additional Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Fair Market Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Insured Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(g) Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(h) Leasehold Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(i) Normal Business Hours . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(J) Operating Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(k) Operating Cost - fiscal period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(1) Rentable Area - whole floor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(m) Rentable Area - part floor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(n) Service Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(o) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(p) Tax Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(q) Tenant's Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(r) Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(s) Total Rentable Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SCHEDULES AND APPENDICES
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Schedule "A" Outline of Lease Premises
Schedule "B" Rules and Regulations
Schedule "C" Special Provisions
Schedule "D" Option to Renew
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THIS LEASE dated the 13th day of September, 1995 in pursuance of the Land
Transfer Form Act is made between the Landlord and the Tenant named herein who,
in consideration of the agreements herein contained, covenant and agree as
follows:
ARTICLE I
BASIC TERMS
1.01 The basic terms of this Lease are:
(a) (i) Landlord: Lord Realty Holdings Limited,
(Registration No. 25475A),
acting by its attorney in fact,
Polaris Realty (Canada) Limited
(ii) Address of Landlord: P.O. Box 12075
555 West Hastings Street
Vancouver, British Columbia
V6B 4N5
(b) (i) Tenant (legal name): NAM TAI ELECTRONICS (CANADA) LTD.
(ii) Address of Tenant: #530 - 999 West Hastings Street
Vancouver, B.C.
V6C 2W2
(iii) Individual to contact: Mr. M.K. KOO
(c) Leased Premises: Suite #530, 999 West Hastings
Street, Vancouver British Columbia,
comprising approximately 2,700
square feet of rentable Area
determined in accordance with
sections 18.01(l) and 18.01(m)
(d) (i) Term: two (2) years, eleven (11)
months and -0- days
(ii) Commencement Date: October 1, 1995
(iii) Expiry Date: August 31, 1998
(e) Rent: Year of Term Per Annum Per Month Per S.F.
------------ --------- --------- --------
Oct 1/95 - Aug 31/98 $36,234.00 $3,019.50 $13.42
(f) Additional Charges: The estimated additional charges payable by the Tenant
(per sections 8.02(c), 8.07 and 9.02(a)) at the Commencement Date is
$36,369.00 per annum payable monthly in advance in the amount of $3,030.75
per month.
(g) Permitted Business: a general business office only.
(h) Operating Name of Business: NAM TAI ELECTRONICS (CANADA) LTD.
(i) Deposit: The Tenant has paid a deposit of $ 13,500.00 to be credited to the
rent and additional charges for the first and last months of the Term.
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ARTICLE 2
PREMISES
2.01 PREMISES. In consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord hereby demises and leases to the Tenant
the Leased Premises.
ARTICLE 3
TERM
3.01 TERM. TO HAVE AND TO HOLD the Leased Premises for the term set out in
section 1.01(d)(i) commencing on the Commencement Date set out in section
1.01(d)(ii).
ARTICLE 4
RENT
4.01 RENT. YIELDING AND PAYING THEREFOR unto the Landlord, at the office
of the Landlord's building manager, or at such other place as the Landlord may
direct in writing, during the Term in lawful money of Canada the rent set out
in section 1.01(e) in advance on the first day of each and every month during
the Term, the first instalment to be paid on or before the Commencement Date.
If the Term should commence on a day other than the first, or end on a day
other than the last day of the month, the rent for the fraction of a month
shall be calculated on a per diem basis at a rent per month equal to one three
hundred and sixty-fifth part of the annual rent.
4.02 ADJUSTMENT OF RENT WHEN AREAS ARE MEASURED OR CHANGED. The annual
rent set out in section 1.01(e) has been calculated on the basis of the
Rentable Area of the Leased Premises being as set out in section 1.01(c) at a
rate for each square foot of such Rentable Area determined by dividing such
annual rent by the Rentable Area. If the Rentable Area of the Leased Premises
was estimated by or on behalf of the Landlord for the purposes of this Lease
because the Rentable Area thereof could not be accurately determined prior to
the execution of the Lease, or if the Rentable Area of the Leased Premises
changes at any time during the Term, then, once the Rentable Area of the Leased
Premises can be accurately determined and if the estimate previously made was
not correct or has changed, the annual rent and other payments under this Lease
base on the Rentable Area shall be adjusted appropriately.
4.03 RENT REVIEW. If annual rent for that portion of the Term following
the fifth anniversary of the Commencement Date has not been specifically agreed
to by the parties, the annual rent payable under section 1.01(e) hereof shall
be reviewed by the parties each fifth anniversary of the Commencement Date to
determine if such annual rent then is the Fair Market Rent for the Leased
Premises; provided that the annual rent payable by the Tenant for such portion
of the Term shall in no event be less than the annual rent payable immediately
preceding such anniversary date. The parties shall make bona fide efforts to
agree as to the Fair Market Rent for the Leased Premises. If, however, the
parties have not agreed as to the amount of such Fair Market Rent by the date
one (1) calendar month subsequent to such anniversary date, then such Fair
Market Rent shall be determined either:
(a) by an arbitrator mutually agreed upon by the parties who
shall be a person currently active in the Province of
British Columbia as an accredited real estate appraiser
having not less than five (5) years experience as an
appraiser; or
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(b) if the parties are unable to agree as to an arbitrator
pursuant to section 4.03(a), then such Fair Market Rent
shall be determined by a single arbitrator in accordance
with the provisions of the Commercial Arbitration Act
S.B.C. 1986, c. 3 and amendments thereto or legislation
in substitution thereof.
Until the rent has been determined as herein provided, the Tenant shall
continue to pay the monthly rent payable theretofore and upon such
determination the Landlord or the Tenant, as the case may be, shall make the
appropriate payment to the other together with interest thereon from the date
of such fifth anniversary to the date of payment at the rate specified in
section 15.01.
ARTICLE 5
TENANT'S COVENANTS
5.00 TENANT'S COVENANTS. That the Tenant covenants with the
Landlord as follows:
5.01 RENT. To pay Rent.
5.02 Permitted Use. To use the Leased Premises only for the
purpose of an office for the conduct of the Tenant's business set forth in
section 1.01(g) under the name set forth in section 1.01(h) and not to use or
permit to be used the Leased Premises or any part thereof for any other purpose
or business.
5.03 WASTE AND NUISANCE. Not to commit or permit any waste or
injury to the Leased Premises including the Leasehold Improvements and trade
fixtures therein, any overloading of the floors thereof, any nuisance therein
or any use or manner of use causing annoyance to other tenants and occupants of
the Building.
5.04 INSURANCE RISKS. Not to do, omit to do or permit to be done
or omit to be done upon the Leased Premises anything which would cause the
Landlord's cost of insurance (whether fire or liability) to be increased (and,
without waiving the foregoing prohibition the Landlord may demand, and the
Tenant shall pay to the Landlord upon demand, the amount of any such increase
of cost caused by anything so done or omitted to be done) or which shall cause
any policy of insurance to be subject to cancellation.
5.05 CONDITION. Not to permit the Leased Premises to become
untidy, unsightly or hazardous or permit unreasonable quantities of waste or
refuse to accumulate therein, and at the end of each business day to leave the
Leased Premises in a condition such as to reasonably facilitate the performance
of the Landlord's janitor and cleaning services referred to in section 6.06.
5.06 BY-LAWS. To comply at its own expense with all municipal,
federal, provincial, sanitary, fire and safety laws, by-laws, regulations and
requirements pertaining to the operation and use of the Leased Premises, the
condition of the Leasehold Improvements, trade fixtures, furniture and
equipment installed by the Tenant therein and the making by the Tenant of any
repairs, changes or improvements therein.
5.07 FIRE EXIT DOORS. To permit the installation by the Landlord
of all doors in the exterior wall of the Leased Premises necessary to comply
with the requirements of any statute, law, by-law, regulation, ordinance,
order or regulation referred to in section 5.06, and to permit ingress and
egress to and from the Leased Premises by the Landlord or by other tenants of
the Landlord or by their respective employees, servants, workmen and invitees,
by use of such doors in case of fire or emergency.
5.08 RULES AND REGULATIONS. To observe, and to cause its
employees, invitees and others over whom the Tenant can reasonably be expected
to exercise control to observe the Rules and Regulations attached as Schedule
"B" hereto, and such further and other reasonable rules and regulations and
amendments and changes therein as may hereafter be made by the Landlord of
which notice in writing shall be given to the Tenant and all such rules and
regulations shall be deemed to be incorporated into and form part of this
Lease.
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5.09 OVERHOLDING. That if the Tenant shall continue to occupy the
Leased Premises after the expiration of this Lease without any further written
agreement and without objection by the Landlord, the Tenant shall be a monthly
tenant at a monthly rent equal to One Hundred and Fifty Percent (150%) of the
monthly rent payable by the Tenant during the last month of the Term and
(except as to length of tenancy) on and subject to the provisions and
conditions herein set out.
5.10 SIGNS AND DIRECTORY. Not to paint, display, inscribe, place
or affix any sign, symbol, notice or lettering of any kind anywhere outside the
Leased Premises (whether on the outside or inside of the Building) or within
the Leased Premises so as to be visible from the outside of the Leased
Premises, with the exception only of a building standard identification sign at
or near the entrance of the Leased Premises and a directory listing in the main
lobby of the Building, in each case containing only the name of the Tenant, and
to be subject to the approval of the Landlord as to design, size and location.
Such identification sign and directory listing shall be installed at the
expense of the Tenant, and the Landlord reserves the right to install them as
an Additional Service.
5.11 INSPECTION AND ACCESS. To permit the Landlord at any time and
from time to time to enter and to have its authorized agents, employees and
contractors enter the Leased Premises for the purpose of inspection, window
cleaning, maintenance, providing janitor service, making repairs, alterations
or improvements to the Leased Premises or the Building, or to have access to
utilities and services (including underfloor header ducts and access panels,
which the Tenant agrees not to obstruct) or to determine the electric light and
power consumption by the Tenant in the Leased Premises and the Tenant shall
provide free and unhampered access for the purpose, and shall not be entitled
to compensation for any inconvenience, nuisance or discomfort caused thereby,
but the Landlord in exercising its rights hereunder shall proceed to the extent
reasonably possible so as to minimize interference with the Tenant's use and
enjoyment of the Leased Premises.
5.12 SHOWING LEASED PREMISES. To permit the Landlord and its
authorized agents and employees to show the Leased Premises to prospective
tenants during the Normal Business Hours of the last six (6) months of the
Term.
ARTICLE 6
LANDLORD'S COVENANTS
6.00 LANDLORD'S COVENANTS. That the Landlord covenants with the
Tenant as follows:
6.01 QUIET ENJOYMENT. For quiet enjoyment.
6.02 INTERIOR CLIMATE CONTROL. To provide to the Leased Premises
during Normal Business Hours, by means of a system for heating and cooling,
filtering and circulating air, processed air in such quantities, at such
temperatures as shall maintain in the Leased Premises conditions of reasonable
temperature and comfort in accordance with good standards of interior climate
control generally pertaining at the date of this Lease applicable to normal
occupancy of premises for office purposes, but the Landlord shall have no
responsibility for any inadequacy of performance of the said system if the
Leased Premises depart from the design criteria for such system, namely that
the occupancy will not exceed one person for every 100 square feet of floor
area, that the electrical power consumed in the Leased Premises for all
purposes shall not exceed 3.0 watts per square foot of floor area, that the
Tenant shall not have installed partitions or other installations in locations
which interfere with the proper operation of the said system, that the window
coverings on exterior windows shall be fully closed while such windows are
exposed to direct sunlight. If the use of the Leased Premises does not accord
with the said design criteria and changes in the system are feasible and
desirable to accommodate such use the Landlord may, and at the written request
of the Tenant shall, make such changes and the entire expense of such changes
will be reimbursed by the Tenant to the Landlord.
6.03 ELEVATORS. Subject to the supervision of the Landlord, to
furnish for use by the Tenant and its employees and invitees in common with
other persons entitled thereto passenger elevator service to the Leased
Premises, and to furnish for the use of the Tenant in common with others
entitled thereto at reasonable intervals and at such hours as the Landlord may
select, elevator service to the Leased Premises for the carriage of furniture,
equipment,
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deliveries and supplies, provided however, that if the elevators shall become
inoperative or shall be damaged or destroyed the Landlord shall have a
reasonable time within which to repair such damage or replace such elevator and
the Landlord shall repair or replace the same as soon as reasonably possible,
but shall in no event be liable for indirect or consequential damages or other
damages for personal discomfort or illness during such period of repair or
replacement.
6.04 ENTRANCES, LOBBIES, ETC. To permit the Tenant and its
employees and invitees to have the use during Normal Business Hours in common
with others entitled thereto of the common entrances, lobbies, stairways and
corridors of the Building giving access to the Leased Premises (subject to the
Rules and Regulations referred to in section 5.08 and such other reasonable
limitations as the Landlord may from time to time impose).
6.05 WASHROOMS. To permit the Tenant and its employees and
invitees in common with others entitled thereto to use the washrooms in the
Building on the floor and floors on which the Leased Premises are situate.
6.06 JANITOR SERVICE. To cause when reasonable necessary from time
to time the floors and windows of the Leased Premises to be swept and cleaned
and the desks, tables and other furniture of the Tenant to be dusted all in
keeping with a first-class office building but with the exception of the
obligation to cause such work to be done, the Landlord shall not be responsible
for any act of omission or commission on the part of the persons employed to
perform such work; such work shall be done at the Landlord's direction without
interference by the Tenant, its servants or employees.
6.07 MAINTENANCE OF COMMON AREAS. To cause the elevators, common
entrances, lobbies, stairways, corridors, washrooms and other parts of the
Building from time to time provided for common use and enjoyment to be swept,
cleaned or otherwise maintained substantially in keeping with a first-class
office building.
ARTICLE 7
REPAIR AND DAMAGE AND DESTRUCTION
7.01 LANDLORD'S REPAIRS. The Landlord covenants with the Tenant:
(a) to keep in a good and reasonable state of repair, and
consistent with the general standards of first-class
office buildings in the City of Vancouver, but
subject to section 7.03(b):
(i) the Building (other than the Leased Premises
and premises of other tenants) including the
foundation, roof, exterior walls including
glass portions thereof, the systems for
interior climate control, the elevators,
entrances, stairways, corridors and lobbies and
washrooms from time to time provided for use in
common by the Tenant and other tenants of the
Building and the systems provided for bringing
utilities to the Leased Premises;
(ii) the structural members or elements of the
Leased Premises; and
(b) to repair defects in construction performed or
installations made by the Landlord in the Leased
Premises and Insured Damage.
7.02 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep in a good and reasonable state of repair and
consistent with the general standards of first-class
office buildings in the City of Vancouver, but
subject to section 7.03(b), the Leased Premises
including all Leasehold Improvements and all trade
fixtures therein and all glass therein other than
glass portions of exterior walls thereof, but with
the exception of structural members or elements of
the Leased Premises and defects in construction
performed or installations made by the Landlord and
Insured Damage therein;
(b) that the Landlord may enter and view the state of
repair, and that the Tenant will repair according to
notice in writing, and that the Tenant will leave the
Leased Premises in a good and reasonable state of
repair, subject always to the exceptions referred to
in section 7.02(a); and
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(c) that if any part of the Building including the
systems for interior climate control and for the
provision of utilities becomes out of repair, damaged
or destroyed through the negligence or misuse of the
Tenant or its employees, invitees or others over
which the Tenant can reasonably be expected to
exercise control, the expense of repairs or
replacements thereto necessitated thereby shall be
reimbursed to the Landlord promptly upon demand.
7.03 ABATEMENT AND TERMINATION. It is agreed between the Landlord
and the Tenant that:
(a) in the event of damage to the Leased Premises or to
the Building and if the damage is such that the Lease
Premises or any substantial part thereof is rendered
not reasonably capable of use and occupancy by the
Tenant for the purposes of its business for any
period of time in excess of ten (10) days, then
(i) unless the damage was caused by the fault or
negligence of the Tenant or its employees,
invitees or others under its control, from and
after the date of occurrence of the damage and
until the Leased Premises are again reasonably
capable of use and occupancy as aforesaid,
rent shall abate from time to time in
proportion to the part or parts of the Leased
Premises not reasonably capable of use and
occupancy; and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant, as the
case may be (according to the nature of the
damage and their respective obligations to
repair as provided in sections 7.01 and 7.02
hereof) shall repair such damage with all
reasonable diligence, but to the extent that
any part of the Leased Premises is not
reasonably capable of such use and occupancy
by reason of damage which the Tenant is
obligated to repair hereunder, any abatement
of rent to which the Tenant is otherwise
entitled hereunder shall not extend later than
the time by which, in the reasonable opinion
of the Landlord, repairs by the Tenant ought
to have been completed with reasonable
diligence; and
(b) if either:
(i) the Leased Premises; or
(ii) premises whether of the Tenant or other
tenants of the Building comprising in the
aggregate half or more of the Rentable Area of
the Building;
are substantially damaged or destroyed by any cause to
the extent such that in the reasonable opinion of the
Landlord they cannot be repaired or rebuilt within one
hundred and eighty (180) days after the occurrence of
the damage or destruction, the Landlord or the Tenant
may at its option, exercisable by written notice to
the other given thirty (30) days after the occurrence
of such damage or destruction, terminate this Lease,
in which event neither the Landlord nor the Tenant
shall be bound to repair as provided in sections 7.01
and 7.02 hereof, and the Tenant shall instead deliver
up possession of the Leased Premises to the Landlord
with reasonable expedition but in any event within
sixty (60) days after delivery of such notice of
termination, and rent shall be apportioned and paid to
the date upon which possession is so delivered up (but
subject to any abatement to which the Tenant may be
entitled under section 7.03(a) by reason of the Leased
Premises having been rendered in whole or in part not
reasonably capable of use and occupancy), but
otherwise the Landlord or the Tenant as the case may
be (according to the nature of the damage and their
respective obligations to repair as provided in
sections 7.01 and 7.02) shall repair such damage with
such reasonable diligence.
ARTICLE 8
TAXES AND OPERATING COSTS
8.01 LANDLORD'S TAX OBLIGATIONS. The Landlord covenants with the
Tenant subject to the provisions of section 8.02, to pay promptly when due to
the taxing authority or authorities having jurisdiction, all Taxes.
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8.02 TENANT'S TAX OBLIGATIONS. The Tenant covenants with the
Landlord:
(a) to pay when due, all taxes, business taxes, business
licence fees, and other taxes, rates, duties or
charges levied, imposed or assessed by lawful
authority in respect of the use and occupancy of the
Leased Premises by the Tenant, the business or
businesses carried on therein, or the equipment,
machinery of fixtures brought therein by or belonging
to the Tenant, or to anyone occupying the Leased
Premises with the Tenant's consent, or from time to
time levied, imposed or assessed in the future in
lieu thereof, and to pay to the Landlord upon demand
the portion of any tax, rate, duty or charge levied
or assessed upon the Land and Building that is
attributable to any equipment, machinery or fixtures
on the Leased Premise which are not the property of
the Landlord, or which may be removed by the Tenant;
(b) to pay to the federal, provincial or municipal
authority imposing the same all service, business
transfer, transaction value, ad valorem or other
taxes by whatever name called, if any, assessed upon
and as a direct result of the payment of rent
hereunder as often as such taxes become due and
whether or not such taxes are applicable on the date
of the execution of this Lease or become applicable
thereafter. In the event that such taxes are by
statute, by-law or regulation, imposed upon or
payable by the Landlord as recipient of the rent, the
Tenant shall reimburse the Landlord for the full
amount of such taxes within thirty (30) days of such
taxes becoming due.
(c) to pay promptly to the Landlord when demanded or
otherwise due hereunder all Taxes in respect of
all Leasehold Improvements in the Leased
Premises;
(d) to pay to the Landlord in the manner specified in
section 8.03 the Tenant's Share of the Tax Cost.
8.03 TENANT'S TAX COST. After the commencement of the Term of this
Lease and prior to the commencement of each fiscal period selected by the
Landlord thereafter which commences during the Term the Landlord shall estimate
the Tenant's Share of any Tax Cost for the ensuing fiscal period or (if
applicable) broken portion thereof, as the case may be, to become payable under
section 8.02, and notify the tenant in writing of such estimate. The amount so
estimated shall be payable in equal monthly instalments in advance over the
fiscal period or broken portion of the fiscal period in question, each such
instalment being payable on each monthly rental payment date provided in
Article 4. When the Tax Cost for the fiscal period or broken portion of the
fiscal period in question becomes finally determined the Landlord shall
recalculate the same. If the Tenant has overpaid such Tax Cost, the Landlord
shall refund any excess paid, but if any balance remains unpaid, the Landlord
shall fix monthly instalments for the then remaining balance of such fiscal
period or broken portion thereof such that, after giving credit for instalments
paid by the Tenant hereunder on the basis of such estimate, the Tenant's entire
Tax Cost will have been paid during such fiscal period or broken portion
thereof but if for any reason the Tax Cost is not finally determined within
such fiscal period or broken portion thereof, the parties shall make the
appropriate readjustment when such Tax Cost becomes finally determined.
Neither party may claim a readjustment in respect of the Tax Cost based on any
error of estimation, determination or calculation thereof unless claimed in
writing prior to the expiration of one (1) year after the fiscal period to
which the Taxes relate. Any report of the Landlord's auditor as to the Tax
Cost shall be conclusive as to the amount thereof for any period to which such
report relates.
8.04 POSTPONEMENT, ETC. OF TAXES. The Landlord may postpone
payment of any Taxes payable by it pursuant to section 8.01 and the Tenant may
postpone payment of any Taxes, rates, duties, levies and assessments payable by
it under section 8.02(a) and (b), in each case to the extent permitted by law
and if prosecuting in good faith any appeal against the imposition thereof, and
provided in the case of a postponement by the Tenant that if the Building or
any part thereof or the Landlord shall become liable to assessment,
prosecution, fine or other liability the Tenant shall have given security in a
form and of an amount satisfactory to the Landlord in respect of such liability
and such undertakings as the Landlord may reasonably require to ensure payment
thereof.
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8.05 RECEIPTS, ETC. Whenever requested by the Landlord the Tenant
will deliver to it receipts for payments of all taxes, rates, duties, levies
and assessments payable by the Tenant pursuant to sections 8.02(a) and (b)
hereof and furnish such other information in connection therewith as the
Landlord may reasonably require.
8.06 ALLOCATION OF TAXES. If a separate allocation of Taxes is not
issued by the relevant taxing authority with respect to any Leasehold
Improvements, the Landlord or the Tenant may from time to time apply to the
taxing authority for a determination of the portion of Taxes attributable to
such Leasehold Improvements, which determination shall be conclusive for the
purposes of this Article. In the event that no such determination may be
obtained from the taxing authority, the Landlord shall establish the portion of
Taxes attributable to such Leasehold Improvements using the then current
established principles of assessment used by the taxing authority, or such
other method which is fair, reasonable and equitable as determined by the
Landlord.
8.07 OPERATING COST. During the Term of the Lease the Tenant shall
pay to the Landlord in the manner set forth in this section the Tenant's Share
of the Operating Cost. Prior to the commencement of the Term of this Lease
and the commencement of each fiscal period selected by the Landlord thereafter
which commences during the Term the Landlord shall estimate the amount of the
Tenant's Share of any Operating Cost for the ensuing fiscal period or, if
applicable broken portion thereof, as the case may be, and notify the Tenant in
writing of such estimate. The amount so estimated shall be payable in equal
monthly instalments in advance over the fiscal period or broken portion thereof
in question, each such instalment being payable on each monthly rental payment
date provided in Article 4. The Landlord may from time to time alter the fiscal
period selected, in which case, and in the case where only a broken portion of
a fiscal period is included within the Term, the appropriate adjustment in
monthly payments shall be made. From time to time during a fiscal period the
Landlord may re-estimate the amount of Operating Cost in which event the
Landlord shall notify the Tenant in writing of such re-estimate and fix monthly
instalments for the then remaining balance of such fiscal period or broken
portion thereof such that, after giving credit for instalments paid by the
Tenant on the basis of the previous estimate or estimates, the Operating Cost
will have been paid during such fiscal period or broken portion thereof. As
soon as practicable after the expiration of each fiscal period the Landlord
shall make a final determination of Operating Cost for such fiscal period or
(if applicable) broken portion thereof and notify the Tenant, and the parties
shall make the appropriate readjustment. Neither party may claim a
readjustment in respect of the Operating Cost based upon error of estimation,
determination or calculation thereof unless claimed in writing prior to the
expiration of one (1) year after the fiscal period to which the Operating Cost
relates. Notices by the Landlord stating the amount of any estimate,
re-estimate or determination of Operating Cost, or monthly instalments payable
need not include particulars of Operating Cost. Any report of the Landlord's
auditor as to the Operating Cost shall be conclusive as to the amount thereof
for any period to which such report relates.
ARTICLE 9
UTILITIES AND ADDITIONAL SERVICES
9.01 WATER AND TELEPHONE. The Landlord shall furnish appropriate
ducts for bringing telephone services to the Leased Premises and shall provide
hot and cold water to washrooms available for the Tenant's use in common with
others entitled thereto.
9.02 ELECTRICITY. The Tenant shall pay throughout the Term
promptly to the Landlord when demanded:
(a) the cost of electrical light and power supplied to
the Leased Premises monthly based on the electric
light and power requirements of the Tenant on a pro
rata basis as determined from time to time during the
Term and billed by the Landlord, provided that the
Tenant or a duly authorized representative shall have
the right to verify that the method of apportionment
used is consistent with the method used for other
tenants of the Building;
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(b) the cost of cleaning, maintaining and servicing in
all respects all electrical lighting fixtures in the
Leased Premises including the cost of replacement of
electrical light bulbs, tubes, starters and ballasts
used to replace those installed at the commencement
of the said Term, such cleaning, maintaining,
servicing and replacement shall be within the
exclusive right of the Landlord.
9.03 ADDITIONAL SERVICES. The Landlord, if it shall from time to
time so elect, shall have the exclusive right, by way of Additional Services,
to provide or have its designated agents or contractors provide any janitor or
cleaning services to the Leased Premises required by the Tenant which are
additional to those required to be provided by the Landlord under section 6.06,
including the Additional Services which the Landlord agrees to provide by
arrangement and to supervise the moving of furniture or equipment of the Tenant
and the making of repairs or alterations conducted within the Leased Premises,
and to supervise or make deliveries to the Leased Premises. The cost of
Additional Services provided to the Tenant, whether the Landlord shall be
obligated hereunder or shall elect to provide them as Additional Services,
shall be paid to the Landlord by the Tenant from time to time promptly upon
receipt of invoices therefor from the Landlord. Cost of Additional Services
charges directly to the Tenant and other tenants shall be credited in computing
Operating Cost.
9.04 ALTERATIONS. Where, after substantial completion, of the
Building, the Landlord is required by law or a competent authority to make
alterations to the Leased Premises, then in each year of the Term after
completion of such alterations (but not after the cost thereof has been repaid
to the Landlord), the Tenant shall pay to the Landlord ten percent (10%) of the
cost to the Landlord of making such alterations, and if the Landlord is
required to make similar alterations to other portions or areas of the Building
the cost of so doing shall be reasonably apportioned by the Landlord to each of
the premises.
ARTICLE 10
LICENSES, ASSIGNMENTS AND SUBLETTINGS
10.01 LICENSES, ETC. The Tenant shall not suffer or permit any part
of the Leased Premises to be used or occupied by any persons other than the
Tenant, any subtenants permitted under section 10.02 and the employees of the
Tenant and any such permitted subtenant, or suffer or permit any part of the
Leased Premises to be used or occupied by any licensee, franchisee or
concessionaire, or suffer or permit any persons to be upon the Leased Premises
other than the Tenant, such permitted subtenants and their respective
employees, customers and others having lawful business with them.
10.02 ASSIGNMENT AND SUBLETTING. The Tenant shall not assign this
Lease or sublet the whole or any part of the Leased Premises, unless (1) it
shall have received or procured a bona fide written offer to take an assignment
or sublease which is not inconsistent with, and the acceptance of which would
not breach any provision of this Lease if this section is complied with and
which the Tenant has determined to accept subject to this section being complied
with, and (2) it shall have first requested and obtained the consent in writing
of the Landlord thereto. Any request for such consent shall be in writing and
accompanied by a true copy of such offer, and the Tenant shall furnish to the
Landlord all information available to the Tenant and requested by the Landlord
as to the responsibility, reputation, financial standing and business of the
proposed assignee or subtenant. Within fifteen (15) days after the receipt by
the Landlord of such request for consent and of all information which the
Landlord shall have requested hereunder (and if no such information has been
requested, within fifteen (15) days after receipt of such request for consent)
the Landlord shall have the right upon written notice to the Tenant, if the
request is to assign this Lease or sublet the whole of the Leased Premises
(unless this request is for assignment is for assignment or subletting to an
affiliate or associate or subsidiary company of the Tenant and provided the
Tenant shall not profit from an increase in the Rent or by cash payment or
inducement paid by the Assignee or Sublessee to the Tenant), to cancel and
terminate this Lease, or if the request is to sublet a part of the Leased
Premises only, to cancel and terminate this Lease with respect to such part in
each case of a termination date to be stipulated in the notice of termination
which shall not be less than sixty (60) days or more than ninety (90) days
following the giving of such notice, and in such event the Tenant shall
surrender the whole or part, as the case may be, of the Leased Premises in
accordance with such notice and rent shall be apportioned and paid to the date
of surrender and, if a part only of the Leased Premises is surrendered,
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rent payable as set forth in section 1.01(e) shall thereafter abate
proportionately. If the Landlord shall not exercise the foregoing right of
cancellation then the Landlord's consent to the Tenant request for consent to
assign or sublet shall not be unreasonably withheld and if such consent shall
be given, the Tenant shall assign or sublet, as the case may be, only upon the
terms set out in the offer submitted to the Landlord as aforesaid and not
otherwise. The Tenant further agrees that if the Landlord consents to any such
assignment or subletting, the Tenant shall be responsible for and shall hold
the Landlord harmless from any and all capital costs for Leasehold Improvements
and all other expenses, costs and charges in respect to or arising out of any
such assignment or subletting. Notwithstanding any such consent being given by
the Landlord and such assignment or subletting being effected, the Tenant
hereunder shall remain bound to the Landlord for the fulfillment of all the
terms, covenants, conditions and agreements herein contained during the Term
and any Renewal Term.
10.03 CHANGE IN CONTROL OF TENANT. If the Tenant is a private
corporation and if by the sale or other disposition of its shares or securities
the control or the beneficial ownership of such corporation is changed at any
time during the Term of this Lease, such change shall be deemed to be an
assignment of this Lease within the meaning of section 10.02. If such control
or beneficial ownership is changed without the prior written consent of the
Landlord, the Landlord may, at its option, cancel the Lease and the Term hereby
granted upon the giving of sixty (60) days notice to the Tenant of its
intention to cancel and this Lease and the Term shall thereupon be cancelled.
ARTICLE 11
FIXTURES AND IMPROVEMENTS
11.01 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant will
not make, erect, install or alter any Leasehold Improvements or trade fixtures
in the Leased Premises without having requested and obtained the Landlord's
prior written approval, which the Landlord shall not unreasonably withhold. In
making, erecting, installing or altering any Leasehold Improvements or trade
fixtures the Tenant shall obtain all required building and occupancy permits
and shall not alter or interfere with any installations which have been made by
the Landlord without the prior written approval of the Landlord, and in no
event shall alter or interfere with window coverings installed by the Landlord
on exterior windows. The Tenant's request for any approval hereunder shall be
in writing and accompanied by an adequate description of the contemplated work
and, where appropriate, working drawings and specifications thereof. Any out
of pocket expenses incurred by the Landlord in connection with any such
approval shall be deemed incurred by way of Additional Service. All work to be
performed in the Leased Premises shall be performed by competent contractors
and subcontractors of whom the Landlord shall have approved (such approval not
to be unreasonably withheld, but provided that the Landlord may require that
the Landlord's contractors and subcontractors be engaged for any mechanical or
electrical work) and by workmen whose labor union affiliations are compatible
with those of workmen employed by the Landlord and its contractors and
subcontractors. All such work shall be subject to inspection by and the
reasonable supervision of the Landlord, as an Additional Service, and shall be
performed in accordance with any reasonable conditions or regulations imposed
by the Landlord and completed in good and workmanlike manner in accordance with
the description of the work approved by the Landlord.
11.02 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In
connection with the making, erection, installation or alteration of Leasehold
Improvements and trade fixtures and all other work or installations made by or
for the Tenant in the Leased Premises the Tenant shall comply with all the
provisions of The Builders Lien Act and other statutes from time to time
applicable thereto (including any provision requiring or enabling the retention
of portions of any sums payable by way of hold-backs) and except as to any such
hold-back shall promptly pay all accounts relating thereto. The Tenant will
not create any mortgage, conditional sale agreement or other encumbrance in
respect of its Leasehold Improvements or trade fixtures or permit any such
mortgage, conditional sale agreement or other encumbrance to attach to the
Leased Premises. If and whenever any mechanics' or other lien for work,
labour, services or materials supplied to or for the Tenant or for the cost of
which the Tenant may be in any way liable or claims therefor shall arise or be
filed or any such mortgage, conditional sale agreement or other encumbrance
shall attach, the Tenant shall within twenty (20) days after receipt of notice
thereof procure the discharge thereof, including any
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certificate of action registered in respect of any lien, by payment or
certificate of action registered in respect of any lien, by payment or giving
security or in such other manner as may be required or permitted by law, and
failing which the Landlord may in addition to all other remedies hereunder
avail itself of its remedy under section 15.01 and may make any payments
required to procure the discharge of any such liens or encumbrances, shall be
entitled to be reimbursed by the Tenant as provided in section 15.01, and its
right to reimbursement shall not be affected or impaired if the Tenant shall
then or subsequently establish or claim that any lien or encumbrance so
discharged was without merit or excessive or subject to any abatement, set off
or defence. This section shall not prevent the Tenant mortgaging or
encumbering its chattels, furniture and equipment not of the nature of
fixtures.
11.03 REMOVAL OF FIXTURES AND IMPROVEMENTS. All Leasehold
Improvements in or upon the Leased Premises shall immediately upon termination
of this Lease be and become the Landlord's property without compensation
therefor to the Tenant. Except to the extent otherwise expressly agreed by the
Landlord in writing, no Leasehold Improvements, trade fixtures, furniture or
equipment shall be removed by the Tenant from the Leased Premises either during
or at the expiration or sooner termination of the Term except that (1) the
Tenant may at the end of the Term remove its trade fixtures, (2) the Tenant
shall at the end of the Term remove such of its Leasehold Improvements and
trade fixtures as the Landlord shall require to be removed, and (3) the Tenant
may remove its furniture and equipment at the end of the Term, and also during
the Term in the usual and normal course of its business where such furniture or
equipment has become excess for the Tenant's purposes or the Tenant is
substituting therefor new furniture and equipment. The Tenant shall, in the
case of every removal either during or at the end of the Term, immediately make
good any damage caused to the Leased Premises by the installation and removal.
ARTICLE 12
INSURANCE AND LIABILITY
12.01 LANDLORD'S INSURANCE. The Landlord shall be deemed to have
insured (for which purpose it shall be a co-insurer, if and to the extent that
it shall not have insured) the Building and all improvements and installations
made by the Landlord in the Leased Premises, except to the extent hereinafter
specified, in respect of perils and to amounts and on terms and conditions
which from time to time are insurable at a reasonable premium and which are
normally insured by reasonably prudent owners of properties similar to the
Building, as from time to time determined at reasonable intervals (but which
need not be determined more often than annually and shall not be determined
less often than every three (3) years) by insurance advisors selected by the
Landlord, and whose written opinion shall be conclusive. Upon the request of
the Tenant from time to time the Landlord will furnish a statement as to the
perils in respect of which and the amounts to which it has insured the
Building, and the Tenant shall be entitled at reasonable times upon reasonable
notice to the Landlord to inspect copies of the relevant portions of policies
of insurance in effect and a copy of any relevant opinions of the Landlord's
insurance advisors.
12.02 TENANT'S INSURANCE. The Tenant shall take out and keep in
force in respect of any loss which might occur during the Term:
(a) comprehensive general liability (including bodily
injury, death, personal injury and property damage)
insurance on an occurrence or "claims made" form with
respect to the business carried on, in or from the
Leased Premises and the Tenant's use and occupancy
thereof of not less than $3,000,000.00 which
insurance shall include the Landlord as a named
insured and shall protect the Landlord in respect of
claims by the Tenant as if the Landlord were
separately insured; and
(b) insurance in such amounts as may be reasonably
required by the landlord in respect of fire and such
other perils, including sprinkler leakage as are from
time to time defined in the usual extended coverage
endorsement covering the Tenant's trade fixtures and
the furniture and equipment of the Tenant and (except
as to Insured Damage) all Leasehold Improvements of
the Tenant, and which insurance shall include the
Landlord as a named insured as the Landlord's
interest may appear with respect to the insured
Leasehold Improvements and provided that any proceeds
recoverable in the event
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of loss to Leasehold Improvements shall be payable
to the Landlord but the Landlord agrees to make
available such proceeds toward the repair or
replacement of the insured property if this Lease is
not terminated pursuant to any other provision hereof;
and if the Landlord shall require the same from time to time then also:
(c) Tenant's fire legal liability insurance in an amount
not less than the actual cash value of the Leased
Premises; and
(d) insurance upon all plate glass in or which forms a
boundary of the Leased Premises in an amount
sufficient to replace all such glass.
All insurance required to be maintained by the Tenant
hereunder shall be on terms and with insurers to which the Landlord has no
reasonable objection and shall provide that such insurers shall provide to the
Landlord thirty (30) days' prior written notice of cancellation or material
alteration of such terms. The Tenant shall furnish to the Landlord evidence as
to the insurance from time to time required to be effected by the Tenant and
its renewal or continuation in force either by means of a certified copy of the
policy or policies of its insurance with all amendments and endorsements or a
certificate from the Tenant's insurer which shall provide such information as
the Landlord may reasonably request. If the Tenant shall fail to take out,
renew and keep in force such insurance the Landlord may do so as the agent of
the Tenant and the Tenant shall repay to the Landlord any amounts paid by the
Landlord as premiums forthwith upon demand.
12.03 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that:
(a) the Landlord shall not be liable for any bodily
injury or death of, or loss or damage to any property
belonging to, the Tenant or its employees, invitees,
or licensees or any other person in, on or about the
Building unless resulting from the actual fault or
negligence of the Landlord, but in no event shall the
Landlord be liable:
(i) for any damage other than Insured Damage
which is caused by steam, water, rain or
snow which may leak into, issue or flow
from any part of the Building or from
the pipes or plumbing works thereof or
from any other place or quarter or for
any damage caused by or attributable to
the condition or arrangement of any
electric or other wiring or for any
damage caused by anything done or
omitted by any other tenant;
(ii) for any act or omission (including
theft, malfeasance or negligence) on the
part of any agent, contractor or person
from time to time employed by it to
perform janitor services, security
services, supervision or any other work
in or about the Leased Premises or the
Building; or
(iii) for loss or damage, however caused, to
money, securities, negotiable
instruments, papers or other valuables
of the Tenant; and
(b) the Landlord will have no responsibility or liability
for the failure to supply interior climate control or
elevator service when prevented from doing so by
strikes, the necessity of repairs, any order or
regulation of any body having jurisdiction, the
failure of the supply of any utility required for the
operation thereof or any other cause beyond the
Landlord's reasonable control, and shall not be held
responsible for any bodily injury, death or damage to
property arising from the use of, or any happening in
or about, any elevator.
12.04 LIMITATION OF TENANT'S LIABILITY. The Landlord releases the
Tenant from all claims or liabilities in respect of any damage which is Insured
Damage, to the extent of the cost of repairing such damage, but not from
injury, loss or damage which is consequential thereto or which arises therefrom
where the Tenant is negligent or otherwise at fault.
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12.05 INDEMNITY OF LANDLORD. Except as provided in section 12.04,
the Tenant agrees to indemnify and save harmless the Landlord in respect of all
claims for bodily injury or death, property damage or other loss or damage
arising from the conduct of any work by or any act or omission of the Tenant or
any assignee, subtenant, agent, employee, contractor, invitee or licensee of
the Tenant, and in respect of all costs, expenses and liabilities incurred by
the Landlord in connection with or arising out of all such claims, including
the expenses of any action or proceeding pertaining thereto, and in respect of
any loss, costs, expense or damage suffered or incurred by the Landlord arising
from any breach by the Tenant of any of its covenants and obligations under
this Lease.
ARTICLE 13
SUBORDINATION, ATTORNMENT, REGISTRATION AND CERTIFICATES
13.00 TENANT'S COVENANTS. The Tenant agrees with the Landlord that:
13.01 SALE OR FINANCING OF BUILDING. The rights of the Landlord
under this Lease may be mortgaged, charged, transferred or assigned to a
purchaser or to a mortgagee, or trustee for bond holders and in the event of a
sale or of default by the Landlord under any mortgage, trust deed or trust
indenture and the purchaser, mortgagee or trustee, as the case may be, duly
entering into possession of the Building or the Leased Premises, the Tenant
agrees to attorn to and become the tenant of such purchaser, mortgagee or
trustee under the terms of this Lease.
13.02 SUBORDINATION AND ATTORNMENT. If required by any mortgagee or
the holder of any trust deeds or trust indentures, this Lease and all rights of
the Tenant hereunder shall be subject and subordinate to all mortgages, trust
deeds or trust indentures now or hereafter existing which may now or hereafter
affect the Building and to all renewals, modifications, consolidations,
replacements and extensions thereof; provided that the Tenant whenever required
by any mortgagee (including any trustee under a trust deed or trust indenture)
shall attorn to such mortgagee as the tenant upon all of the terms of this
Lease. The Tenant agrees to execute promptly whenever requested by the Landlord
or by such mortgagee an instrument of subordination or attornment, as the case
may be, as may be required of it.
13.03 REGISTRATION. The Tenant covenants and agrees with the
Landlord that the Landlord shall not be obliged to provide this Lease in
registrable form and the Tenant agrees not to register this Lease, provided
that the Tenant at the request of the Landlord and at the cost and expense of
the Tenant, will cause this Lease to be registered in the Land Title Office in
the city in which title to the Leased Premises is registered. Notwithstanding
the provisions of section 13.02, in the event the Landlord requires this Lease
to be registered in priority to any mortgage, trust deed or trust indenture
which may now or any time hereafter affect in whole or in part the Leased
Premises or the Building and whether or not any such mortgage, trust deed or
trust indenture shall affect only the Leased Premises or the Building or shall
be a blanket mortgage, trust deed or trust indenture affecting other premises
as well, the Tenant covenants and agrees with the Landlord that the Tenant
shall execute promptly upon request by the Landlord any certificate, priority
agreement, or other instrument which may from time to time be requested to give
effect thereto.
13.04 CERTIFICATES. The Tenant agrees with the Landlord that the
Tenant shall promptly whenever requested by the Landlord from time to time
execute and deliver to the Landlord (and if required by the Landlord, to any
mortgagee (including any trustee under a trust deed or trust indenture) or
purchaser designated by the Landlord) a certificate in writing as to the then
status of this Lease, including as to whether it is in full force and effect,
is modified or unmodified, confirming the rental payable hereunder and the
state of the accounts between the Landlord and Tenant, the existence or
non-existence of defaults, and any other matter pertaining to this Lease as to
which the Landlord shall request a certificate.
13.05 ASSIGNMENT BY LANDLORD. In the event of the sale by the
Landlord of the Building or a portion thereof containing the Leased Premises or
the assignment by the Landlord of this Lease or any interest of the Landlord
hereunder, and to the extent that such purchaser or assignee has assumed the
covenants and obligations of the Landlord hereunder, the Landlord shall,
without further written agreement, be freed and relieved of liability upon such
covenants and obligations.
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ARTICLE 14
OCCURRENCE OF DEFAULT
14.01 UNAVOIDABLE DELAY. Except as herein otherwise expressly
provided, if and whenever and to the extent that either the Landlord or the
Tenant shall be prevented, delayed or restricted in the fulfillment of any
obligations hereunder in respect of the supply or provision of any service or
utility, the making of any repair, the doing of any work or any other thing
(other than the payment of rent or other moneys due) by reason of strikes or
work stoppages, or being unable to obtain any material, service, utility or
labour required to fulfil such obligation or by reason of any statute, law or
regulation of or inability to obtain any permission from any governmental
authority having lawful jurisdiction preventing, delaying or restricting such
fulfillment, or by reason of other unavoidable occurrence, the time for
fulfillment of such obligation shall be extended during the period in which
such circumstance operates to prevent, delay or restrict the fulfillment
thereof, and the other party to this Lease shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned;
but nevertheless the Landlord will use its best efforts to maintain services
essential to the use and enjoyment of the Leased Premises.
14.02 NO ADMISSION. The acceptance of any rent from or the
performance of any obligation hereunder by a person other than the Tenant shall
not be construed as an admission by the Landlord of any right, title or
interest of such personas a subtenant, assignee, transferee or otherwise in the
place and stead of the Tenant.
14.03 PART PAYMENT. The acceptance by the Landlord of a part
payment of any sums required to be paid hereunder shall not constitute waiver
or release of the right of the Landlord to payment in full of such sums.
ARTICLE 15
REMEDIES OF LANDLORD AND TENANT'S DEFAULT
15.01 REMEDYING BY LANDLORD, NON-PAYMENT AND INTEREST. In addition
to all the rights and remedies of the Landlord available to it in the event of
any default hereunder by the Tenant either by any other provision of this Lease
or by statute or the general law, the Landlord:
(a) shall have the right at all times to remedy or
attempt to remedy any the Tenant, and in so doing may
make any payments due or be due by the Tenant to
third parties and may enter upon Premises to do any
work or other things therein and in all expenses of
the Landlord in remedying or attempting such default
shall be payable by the Tenant to the Landlord
forthwith upon demand; and
(b) shall have the same rights and remedies in the event
of any nonpayment by the Tenant of any amounts
payable by the Tenant under any provision of this
Lease as in the case of non-payment of rent.
If the Tenant shall fail to pay any rent or other amount from
time to time payable by it to the Landlord hereunder promptly when due, then
the Tenant shall pay interest thereon at a rate of three percent (3%) per annum
in excess of the rate of interest published from time to time by the main
branch in Vancouver, British Columbia, of the Landlord's bank, as its reference
rate for calculating interest on commercial loans of Canadian dollars and
referred to by such bank as its prime rate, from the date upon which the same
was due until actual payment thereof. Any interest payable under this section
shall be payable on the first day of each month and all arrears of interest
shall bear interest at the same rate.
15.02 REMEDIES CUMULATIVE. The Landlord may from time to time
resort to any or all of the rights and remedies available to it in the event of
any default hereunder by the Tenant, either by any provision of this Lease or
by statute or the general law, all of which rights and remedies are intended to
be cumulative and not alternative, and the express provisions hereunder as to
certain rights and remedies are not to be interpreted as excluding any other or
additional rights and remedies available to the Landlord by statute or general
law.
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15.03 RIGHT OF RE-ENTRY ON DEFAULT OR TERMINATION. Provided and it
is expressly agreed that if and whenever the rent hereby reserved or other
monies payable by the Tenant or any part thereof, whether lawfully demanded or
not, are unpaid and the Tenant shall have failed to pay such rent or other
monies within five (5) business days after the Landlord shall have given to the
Tenant notice requiring such payment, or if the Tenant shall breach or fail to
observe and perform any of the covenants, agreements, provisos, conditions,
rules or regulations and other obligations on the part of the Tenant to be
kept, observed or performed hereunder, or if this Lease shall have become
terminated pursuant to any provision hereof, or if the Landlord shall have
become entitled to terminate this Lease and shall have given notice terminating
it pursuant to any provision hereof, then and in every such case it shall be
lawful for the Landlord thereafter to enter into and upon the Leased Premises
or any part thereof in the name of the whole and the same to have again,
repossess and enjoy as of its former estate, anything in this Lease contained
to the contrary notwithstanding.
15.04 TERMINATION AND RE-ENTRY. If and whenever the Landlord
becomes entitled to re-enter upon the Leased Premises under any provision of
this Lease, the Landlord, in addition to all other rights and remedies, shall
have the right to terminate this Lease forthwith by leaving upon the Leased
Premises notice in writing of such termination.
15.05 PAYMENT OF RENT, ETC. ON TERMINATION. Upon the giving by the
Landlord of a notice in writing terminating this Lease, whether pursuant to
this or any other provision of this Lease, this Lease and the Term shall
terminate, rent and any other payments for which the Tenant is liable under
this Lease shall be computed, apportioned and paid in full to the date of such
termination, and the Tenant shall immediately deliver up possession of the
Leased Premises to the Landlord, and the Landlord may re-enter and take
possession of them.
15.06 WAIVER OF DISTRESS. The Tenant waives and renounces the
benefit of any present or future statute taking away or limiting the Landlord's
right of distress and covenants and agrees that notwithstanding any such
statute none of the goods and chattels of the Tenant on the Leased Premises at
any time during the Term shall be exempt for levy by distress for rent in
arrears. The Tenant will not sell, dispose of or remove any of the fixtures,
goods or chattels of the Tenant from or out of the Leased Premises during the
Term without the consent of the Landlord, unless the Tenant is substituting new
fixtures, goods or chattels of equal value or is bona fide disposing of
individual items which have become excess for the Tenant's purposes; and the
Tenant will be the owner of its fixtures, good and chattels and will not permit
them to become subject to any lien, mortgage, charge or encumbrance.
15.07 RE-LETTING, ETC. Whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease the
Landlord in addition to all other rights it may have shall have the right as
agent of the Tenant to enter the Leased Premises and re-let them and to receive
the rent therefor and as the agent of the Tenant to take possession of any
furniture or other property thereon and to sell the same at public or private
sale without notice and to apply the proceeds thereof and any rent derived from
re-letting the Leased Premises upon account of the rent due and to become due
under this Lease and the Tenant shall be liable to the Landlord for the
deficiency, if any.
ARTICLE 16
EVENTS TERMINATING LEASE
16.01 CANCELLATION OF INSURANCE. If any policy of insurance upon
the Building from time to time effected by the Landlord shall be cancelled or
about to be cancelled by the insurer by reason of the use or occupation of the
Leased Premises by the Tenant or any assignee, subtenant or licensee of the
Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the
Tenant after receipt of notice in writing from the Landlord shall have failed
to take such immediate steps in respect of such use or occupation as shall
enable the Landlord to reinstate or avoid cancellation of (as the case may be)
such policy of insurance, the Landlord may at its option terminate the Lease by
leaving upon the Leased Premises notice in writing of such termination.
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16.02 PROHIBITED OCCUPANCY, BANKRUPTCY, ETC. In case without the
written consent of the Landlord the Leased Premises shall be used by any other
persons than the Tenant or its permitted assigns or subtenants or for any
purpose other than that for which they were leased, or occupied by any persons
whose occupancy is prohibited by this Lease, or if the Leased Premises shall be
vacated or abandoned, or remain unoccupied for fifteen (15) days or more while
capable of being occupied, or if the Term or any of the goods and chattels of
the Tenant shall at any time be seized in execution or attachment, or if the
Tenant shall make any assignment for the benefit of creditors or any bulk sale,
become bankrupt or insolvent or take the benefit of any statute now or
hereafter in force for bankrupt or insolvent debtors or (if a corporation)
shall take any steps or suffer any order to be made for its winding-up or other
termination of its corporate existence, then in any such case the Landlord may
at its option terminate this Lease by leaving upon the Leased Premises notice
in writing of such termination and thereupon, in addition to the payment by the
Tenant of rent and other payments for which the Tenant is liable under this
Lease, rent for the current month and the next ensuing three (3) months' rent
shall immediately become due and be paid by the Tenant.
ARTICLE 17
MISCELLANEOUS
17.01 NOTICES. Any notice required or contemplated by any provision
of this Lease shall be given in writing, and if to the Landlord, either
delivered to an executive officer of the Landlord or mailed by prepaid
registered mail addressed to the Landlord at the address set out in section
1.01(a); and if to the Tenant, either delivered to the Tenant personally (or to
a partner or officer of the Tenant if the Tenant is a firm or corporation) or
mailed by prepaid registered mail addressed to the Tenant at the address set
out in section 1.01(b). At the option of the Landlord any notice may be
delivered to the Tenant at the Leased Premises. Every such notice shall be
deemed to have been given when delivered or, if mailed as aforesaid upon the
day when it was mailed in Canada. The Landlord may from time to time by notice
in writing to the Tenant designate another address in Canada as the address to
which notices are to be mailed to it.
17.02 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are
no covenants, representations warranties, agreements or conditions expressed or
implied relating to this Lease or the Leased Premises save as expressly set out
in this Lease and in any agreement to lease in writing between the Landlord and
the Tenant pursuant to which this Lease has been executed. This Lease may not
be modified except by an agreement in writing executed by the Landlord and the
Tenant.
17.03 TIME OF ESSENCE. Time shall be of the essence of this Lease.
17.04 AREA DETERMINATION. In the event that any calculation or
determination by the Landlord of the Rentable Area of any premises (including
the Leased Premises) or the Building is disputed or called into question, it
shall be calculated or determined by the Landlord's architect or surveyor from
time to time appointed for the purpose, whose certificate shall be conclusive.
17.05 SUCCESSORS AND ASSIGNS. This Lease and everything herein
contained shall enure to the benefit of and be binding upon the successors and
assigns of the Landlord and the heirs, executors and administrators and the
permitted successors and assigns of the Tenant. References to the Tenant shall
be read with such changes in gender as may be appropriate, depending upon
whether the Tenant is a male or female person or a firm or corporation, and if
the Tenant is more than one person or entity, the covenants of the Tenant shall
be deemed joint and several.
17.06 FRUSTRATION. The Landlord and the Tenant agree that
notwithstanding the occurrence or existence of any event or circumstance or the
non-occurrence of any event or circumstance and so often and for so long as the
same may occur or continue which, but for this section, would frustrate or void
this Lease, the obligations and liabilities of the Tenant hereunder shall
continue in full force and effect as if such event or circumstance has not
occurred or existed.
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17.07 WAIVER. No condoning, excusing or overlooking by the Landlord
or Tenant of any default, breach or non-observance by the Tenant or the
Landlord at any time or times in respect of any covenant, proviso or condition
herein contained shall operate as a waiver of the Landlord's or the Tenant's
rights hereunder in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of the
Landlord or the Tenant herein in respect of any such continuing or subsequent
default or breach and no waiver shall be inferred from or implied by anything
done or omitted by the Landlord or the Tenant save only express waiver in
writing.
17.08 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Province of British Columbia. The Landlord
and the Tenant agree that all of the provisions of this Lease are to be
construed as covenants and agreements as though the words importing such
covenants and agreements were used in each separate section hereof. Should any
provision or provisions of this Lease be illegal or not enforceable, it or they
shall be considered separate and severable from the Lease and its remaining
provisions shall remain in force and be binding upon the parties hereto as
though the said provision or provisions had never been included.
17.09 CAPTIONS. The captions appearing in this Lease have been
inserted as a matter of convenience and for reference only and in no way
define, limit or enlarge the scope or meaning of this Lease or of any provision
thereof.
17.10 NET LEASE. The Tenant acknowledges and agrees that it is
intended that this Lease shall be a completely carefree net lease for the
Landlord except as shall be otherwise provided in the specific provisions
contained in this Lease, and that the Landlord shall not be responsible during
the Term for any costs, charges, expenses and outlays of any nature whatsoever
arising from or relating to the Leased Premises, and the Tenant, except as
shall be otherwise provided in the specific provisions contained in this Lease,
shall pay all charges, impositions and costs of every nature and kind relating
to the Leased Premises whether or not referred to herein and whether or not
within the contemplation of the Landlord or the Tenant and the Tenant covenants
with the Landlord accordingly.
17.11 SPECIAL PROVISIONS. If there is a Schedule "C" to this Lease
the parties agree to each of its provisions.
ARTICLE 18
DEFINITIONS
18.01 DEFINITIONS. In this Lease the following expressions shall
have the following meanings:
(a) "Additional Service" or "Additional Services" means
the services and supervision supplied by the Landlord
and referred to in section 9.03 or in any other
provision hereof as Additional Services, and any
other services which from time to time the Landlord
supplies to the Tenant and which are additional to
the janitor and cleaning and to other services which
the Landlord has agreed to supply pursuant to the
provisions of this Lease and to like provisions of
other leases of the Building or may elect to supply
as included within the standard level of service
available to tenants generally and includes janitor
and cleaning services in addition to those normally
supplied, the provision of labour and supervision in
connection with deliveries and supervision in
connection with the moving of any furniture or
equipment of any tenant and the making of any repairs
or alterations by any tenant and maintenance or other
services not normally furnished to tenants generally;
(b) "Building" means that certain office building of
approximately nineteen storeys located on the Land;
(c) "Cost of Additional Services" shall mean in the case
of Additional Services provided by the Landlord a
reasonable charge made therefor by the Landlord which
shall not exceed the cost of obtaining such services
from independent contractors and in the case of
Additional Services provided by independent
contractors the Landlord's total cost of providing
Additional Services to the Tenant including the cost
of all labour (including salaries, wages and fringe
benefits) and materials and other direct expenses
incurred, the cost of supervision and other indirect
expenses capable of being allocated
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thereto (such allocation to be made upon a reasonable
basis) and all other out-of-pocket expenses made in
connection therewith including amounts paid to
independent contractors plus an amount equal to ten
percent (10%) thereof. A report of the Landlord's
auditor or other licensed public accountant appointed
by the Landlord for the purpose as to the amount of
any Cost of Additional Services shall be conclusive;
(d) "Fair Market Rent" means that rent that would be paid
for leases of similar duration for office space
similar to the Leased Premises in office buildings of
similar age, class, size, amenities and leasehold
improvements between persons dealing in good faith and
at arm's length.
(e) "Insured Damage" means that part of any damage
occurring to the Leased Premises of which the entire
cost of repair is actually recoverable by the Landlord
under a policy of insurance in respect of fire and
other perils from time to time effected by the
Landlord, or, if and to the extent that the Landlord
has not insured or is deemed to be a co-insurer or
self-insurer pursuant to section 12.01, would have
been recoverable had the Landlord effected insurance
in respect of perils and to amounts and on terms of
which it is deemed to be insured;
(f) "Land" means all and singular those certain parcels
or tracts of land, situate, lying and being In the
City of Vancouver, Province of British Columbia, more
particularly described as:
Lot I
Block 16
District Lot 541
Plan 17421
New Westminster District
(g) "Leased Premises" means that portion of the Building
set out in section 1.01(c), and shown outlined in red
on the Plan attached as Schedule "A" hereto. The
exterior face of the Building and any space in the
Leased Premises used for stairways or passageways to
other premises, stacks, shafts, pipes, conduits, ducts
or other building facilities, heating, electrical,
plumbing, air conditioning and other systems in the
Building are expressly excluded from the Leased
Premises;
(h) "Leasehold Improvements" means all fixtures,
improvements, installations, alterations and additions
from time to time made, erected or installed in the
Leased Premises or by other tenants in other premises
with the exception of trade fixtures and furniture and
equipment not of the nature of fixtures, but includes
all partitions however fixed (including moveable
partitions) and includes all wall-to-wall carpeting
with the exception of such carpeting where laid over
vinyl tile or other finished floor and affixed so as
to be readily removable without damage;
(i) "Normal Business Hours" means the hours from 8:00 a.m.
to 6:00 p.m Monday to Friday, inclusive, of each week,
and the hours from 8:00 a.m. to 1:00 p.m. Saturdays,
holidays excepted;
(j) "Operating Cost" means the total of all expenses,
without duplication, incurred in the complete
maintenance and operation of the Building and the
Land, whether incurred by or on behalf of any owner or
owners of parts of or interests in the Building and
the Land with whom the Landlord may from time to time
have agreements for the pooling or sharing of costs or
by or on behalf of lessees of space in the Building
with whom the Landlord may from time to time have
agreement whereby in respect of their premises such
lessees perform any cleaning, maintenance or other
work or services usually performed by the Landlord,
and which expenses if directly incurred by the
Landlord would have been included in Operating Cost.
If at any time during any fiscal period the Building
shall be less than ninety-five percent (95%) occupied
by tenants, the Landlord shall have the right to
adjust any cost incurred in the Building that is
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related to tenant occupancy so that the Landlord
will fully recover its expenditure and Operating
Cost for such fiscal period shall be deemed to be
the amount of Operating Cost which would have been
incurred if the Building had been ninety-five
percent (95%) occupied by tenants during the whole
of the fiscal period. Operating Cost (without
limiting the generality of the foregoing):
(i) shall include (but subject to certain
deductions as hereinafter provided) the cost of
providing complete cleaning, janitor,
supervisory and all maintenance services, the
cost of operating elevators, the cost of
heating, cooling and ventilating all space
including both rentable and non-rentable areas,
the cost of providing hot and cold water,
electricity (including lighting), telephone and
other utilities and services to both rentable
and non-rentable areas, the cost of all repairs
including repairs to the Building or services
including elevators, the cost of window
cleaning and providing security and
supervision, the costs of all insurance for
liability or fire or other casualties (and if
the Landlord shall elect in whole or in part to
self-insure, the amount of reasonable
contingency reserves not exceeding the amount
of premiums which would otherwise have been
incurred in respect of the risk undertaken),
accounting costs incurred in connection with
maintenance and operation including
computations required for the imposition of
charges to tenants and audit charges required
to be incurred for the conclusive determination
of any costs hereunder, and the reasonable
rental value (having regard to the rentals
prevailing from time to time for similar space)
of space utilized by the Landlord in connection
with the operation or maintenance of the
Building and the Land, the amount of all
salaries, wages and fringe benefits paid to
employees engaged in the maintenance or
operation of the Building and the Land, amounts
paid to independent contractors for any
services in connection with such maintenance or
operation, the cost of direct supervision and
of management and other indirect expenses to
the extent allocable to the maintenance and
operation of the Building and the Land, the
cost to the Landlord of making a capital
improvement resulting in the reduction of the
Operating Cost, the cost of any management fees
and managing agent's fees and all other
expenses of every nature incurred in connection
with the maintenance and operation of the
Building and the Land;
(ii) shall exclude Taxes, debt service,
depreciation expenses properly chargeable to
capital account (except capital expenditures
that are made by the Landlord to reduce
Operating Cost), costs determined by the
Landlord from time to time to be fairly
allocable to the correction of construction
faults or initial maladjustments in operating
equipment and all management cost not allocable
to the actual maintenance and operation of the
Building (such as in connection with leasing
and rental advertising).
In computing Operating Cost there shall be credited
as a deduction the amounts of proceeds of insurance
relating to Insured Damage and other damage actually
recovered by the Landlord (or if the Landlord is
deemed to self-insure, a corresponding application
of reserves) applicable to such damage, recovery
from tenants of the costs of electricity and light
bulb and tube and ballast replacement, in each case
to the extent that the cost thereof was included
therein. Any expenses not directly incurred by the
Landlord but which are included in the Operating
Cost may be estimated by the Landlord on whatever
reasonable basis the Landlord may select if and to
the extent that the Landlord cannot ascertain the
actual amount of such expenses from the owners or
lessees who incurred them. Any report of the
Landlord's auditor or other licensed public
accountant appointed by the Landlord for the purpose
shall be conclusive as to the amount of Operating
Costs for any period to which such report relates;
(k) "Operating Cost" in any fiscal period means an amount
equal to the aggregate of all Operating Cost for such
fiscal period;
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(l) "Rentable Area", in the case of a whole floor of the
Building, means all area within the outside walls and
shall be computed by measuring to the inside surface
of the glass outer Building walls without deduction
for columns and projections necessary for the
Building, and shall include the Service Areas serving
the floor, but shall not include stairs and elevator
shafts supplied by the Landlord for use in common
with other tenants and flues, stacks, pipe shafts and
vertical ducts with their enclosing walls;
(m) "Rentable Area", in the case of part of a floor of
the Building, means the area occupied, plus an amount
equal to the product of the fraction having as its
numerator the Rentable Area contained in the Leased
Premises on such floor (exclusive of such fraction of
the total area of the Service Areas) and as its
denominator the sum of the Rentable Area of such
floor, multiplied by the total area of Service Areas
serving such floor, and shall be computed by
measuring from the inside surface of the glass outer
Building walls to the office side of corridors or
other permanent partitions and to the centre of
partitions which separate the area occupied from
adjoining Rentable Areas without deduction for
columns and projections necessary to the Building,
but shall not include stairs and elevator shafts
supplied by the Landlord for use in common with other
tenants and flues, stacks, pipe shafts or vertical
ducts within their enclosed walls within the area
occupied;
(n) "Service Areas" shall mean the area of corridors,
elevator lobbies, service elevator lobbies,
washrooms, air-cooling rooms, fan rooms, janitor's
closets, telephone and electrical closets and other
closets on serving the Leased Premises and other
premises on a floor should the floor be a multiple
tenant floor;
(o) "Taxes" means all taxes, rates, duties, levies and
assessments whatsoever, whether municipal,
parliamentary or otherwise, levied, imposed or
assessed against the Building, the Land and the rents
payable to the Landlord by tenants of the building or
upon the Landlord in respect of the Building, the
Land, such rents or the rental of space in the
Building to such tenants or from time to time levied,
imposed or assessed in the future in lieu thereof,
including those levied, imposed or assessed for
education, schools and local improvements, and
including all costs and expenses (including legal and
other professional fees and interest and penalties on
deferred payments) incurred by the Landlord in good
faith in contesting, resisting or appealing any
taxes, rates, duties, levies or assessments, but
excluding taxes and license fees in respect of any
business carried on by tenants and occupants of the
Building (including the Landlord) and income or
profits taxes upon the income of the Landlord to the
extent such taxes are not levied in lieu of taxes,
rate, duties, levies and assessments against the
Building or the Land or upon the Landlord in respect
thereof and shall also include any and all taxes
which may in future be levied in lieu of taxes as
hereinbefore defined;
(p) "Tax Cost" for any fiscal period means an amount
equal to the aggregate of all Taxes for such
fiscal period;
(q) "Tenant's Share" means the fraction which has as its
numerator the Rentable Area of the Leased Premises
and its denominator the Total Rentable Area;
(r) "Term" means the term of this Lease set forth in
section 1.01(d)(i) and any renewal or extension
thereof and any period of permitted overholding;
(s) "Total Rentable Area" shall mean the total Rentable
Area of the Building, whether rented or not,
calculated as if the Building were entirely occupied
by tenants renting whole floors. The lobby and
entrances on the ground floor and subservice floors
used in common by tenants, mechanical equipment
areas and areas rented or to be rented for
automobile parking or for storage shall be excluded
from the foregoing calculations. The calculation of
the Total Rentable Area, whether rented or not,
shall be determined upon completion of the Building
and shall be adjusted from time to time to give
effect to any structural or fractional change
affecting the same.
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25
IN WITNESS WHEREOF the Landlord and the Tenant have executed this
Lease the day and year first above written.
LORD REALTY HOLDING LIMITED, )
acting by its attorney in )
fact, POLARIS REALTY (CANADA) )
LIMITED, whose common seal )
was affixed in the presence )
of: )
)
[SIG] )
- ------------------------------ )
Title: )
------------------------ )
) C/S
[SIG] )
- ------------------------------ )
Title: Jon Hall Vice President )
Western Region
THE COMMON SEAL of the )
TENANT was affixed in the )
presence of: )
)
[SIG] )
- ------------------------------- )
Title: President )
)
- ------------------------------- ) C/S
Title: )
------------------------- )
21
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SCHEDULE "A"
PLAN OF LEASE AREA OF
THE 5th FLOOR OF THE
"B.C"E.D. CENTRE" LOCATED AT
999 W. HASTINGS ST., VANCOUVER, B.C.
[FLOOR LAYOUT]
27
SCHEDULE "B" TO LEASE
RULES AND REGULATIONS
The Tenant shall observe the following Rules and Regulations
(as amended, modified or supplemented from time to time by the Landlord as
provided in the Lease):
1. The Tenant shall not use or permit the use of the Leased
Premises in such manner as to create any objectionable noises, odours or other
nuisance or hazard, or breach any applicable provisions of municipal by-law or
other lawful requirements applicable thereto or any requirements of the
Landlord's insurers, shall not permit the Leased Premises to be used for
cooking (except with the Landlord's prior written consent) or for sleeping,
shall keep the Leased Premises tidy and free from rubbish, shall deposit
rubbish in receptacles which are either designated or clearly intended for
waste and shall leave the Leased Premises at the end of each business day in a
condition such as to facilitate the performance of the Landlord's janitor
services in the Leased Premises.
2. The Tenant shall not abuse, misuse or damage the Leased
Premises or any of the improvements or facilities therein, and in particular
shall not deposit rubbish in any plumbing apparatus or use it for other than
purposes for which it is intended, and shall not deface or mark any walls or
other parts of the Leased Premises.
3. The Tenant shall not perform, patronize or (to the extent
under its control) permit any canvassing, soliciting or peddling in the
Building, shall not install in the Leased Premises any machines vending or
dispensing refreshments or merchandise and shall not permit food or beverages
to be brought to the Leased premises except by such means, at such times and by
such persons as have been authorized by the Landlord.
4. The entrances, lobbies, elevators, staircases and other
facilities of the Building are for use only for access to the Leased Premises
and other parts of the Building and the Tenant shall not obstruct or misuse
such facilities or permit them to be obstructed or misused by its agents,
employees, invitees or others under its control.
5. No safe or heavy office equipment shall be moved by or for the
Tenant unless the consent of the Landlord is first obtained and unless all due
care is taken. Such equipment shall be moved upon the appropriate steelbearing
plates, skids or platforms and subject to the Landlord's direction, and at such
times, by such means and by such persons as the Landlord shall have approved.
No furniture, freight or bulky matter of any description shall be moved in or
out of the Leased Premises or carried in the elevators except during such hours
as the Landlord shall have approved. Hand trucks and similar appliances shall
be equipped with rubber tires and other safeguards approved by the Landlord,
and shall be used only by prior arrangement with the Landlord.
6. The Tenant shall permit and facilitate the entry of the
Landlord, or those designated by it, into the Leased Premises for the purpose
of inspection, repair, window cleaning and the performance of other janitor
services, and shall not permit access to main header ducts, janitor and
electrical closets and other necessary means of access to mechanical,
electrical and other facilities to be obstructed by the placement of furniture
or otherwise. The Tenant shall not place any additional locks or other
security devices upon any doors of the Lease Premises without the prior written
approval of the Landlord and subject to any conditions imposed by the Landlord
for the maintenance of necessary access.
7. The Landlord may require that all or any persons entering and
leaving the Building at any time other than the Normal Business Hours
satisfactorily identify themselves and register in books kept for the purpose
and may prevent any person from entering the Leased Premises unless provided
with a key thereto and a pass or other authorization from the Tenant in a form
satisfactory to the Landlord and may prevent any person removing any goods
therefrom without written authorization.
8. The Tenant shall refer to the Building only by the name from
time to time designated by the Landlord for it and shall use such name only for
the business address of the Leased Premises and not for any promotion or other
purpose.
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9. The Tenant shall not interfere with window coverings installed
upon exterior windows, and shall close or (if window coverings are remotely
controlled) permit to be closed such window coverings during such hours from
dusk to dawn as the Landlord may require, and shall not install or operate any
interior drapes installed by the Tenant so as to interfere with the exterior
appearance of the Building.
The foregoing Rules and Regulations, as from time to time
amended, are not necessarily of uniform application, but may be waived in whole
or in part in respect of other tenants without affecting their enforceability
with respect to the Tenant and the Leased Premises, and may be waived in whole
or in part with respect to the Leased Premises without waiving them as to
future application to the Leased Premises, and the imposition of such Rules and
Regulations shall not create or imply an obligation of the Landlord to enforce
them or create any liability of the Landlord for their non-enforcement.
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SCHEDULE "C" TO LEASE
SPECIAL PROVISIONS
FREE BASIC RENT
The Tenant shall have a Free Basic Rent period during the first two (2) months
from the Commencement Date of this Lease. During this period the Tenant shall
pay to the Landlord its Proportionate Share of Operating Costs and Property
Taxes and abide by all other term of this Lease.
EARLY ACCESS
For the purposes of planning and constructing of its Leasehold Improvements,
the Tenant shall have early access to the Leased Premises one (1) month prior
to the Commencement Date. During this period the Tenant shall not be obligated
to pay any Basic Rent or Additional Rent, but shall abide by ALL other terms of
this Lease.
LEASEHOLD IMPROVEMENTS
The Tenant shall be responsible for providing their own leasehold improvements,
including designer fees, architectural inspection fees, demolition and
construction costs and signage, ALL in keeping with the Landlord's Tenant
Guidelines and to the prior approval of the Landlord.
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SCHEDULE "D" TO LEASE
OPTION TO RENEW
1. Provided that the Tenant shall not be in default under any of
the covenants or conditions of this Lease, the Landlord hereby
grants to the Tenant a right of renewal, exercisable by the
Tenant giving written notice to the Landlord not less than six
(6) months and not more than nine (9) months prior to the
expiration of the Term, to renew the Term of this Lease for a
further period of three (3) years (in this Lease called the
"Renewal Term").
2. There shall be no further right of renewal beyond the Renewal
Term.
3. The renewal lease shall contain the same covenants, conditions
and agreements as are contained in this Lease, except:
(a) the right of renewal already exercised shall be omitted;
(b) any section or clause of this Lease which requires
revision to state correctly the manner in which it
is to be applied during the Renewal Term shall be
so revised; and
(c) Rent for the Renewal Term shall be determined as provided
in paragraph 4 hereof.
4. The Rent payable with respect to the Renewal Term shall be the
greater of:
(a) the Rent payable during the final year of this Lease: or
(b) the Fair Market Rent (as defined in Article 18, Section
18.01 (d)) for the Leased Premises as at the commencement
date of the Renewal Term.
5. The parties shall make bona fide efforts to agree as to the
Fair Market Rent with respect to the Leased Premises as at the
commencement date of the Renewal Term. If, however, the
parties have not agreed as to the amount of rent by the
sixtieth (60th) day prior to the commencement of the Renewal
Term, then such rent shall be determined either:
(a) by an arbitrator mutually agreed upon by the parties who
shall be a person currently active in the Province of
British Columbia as an Accredited Real Estate appraiser
having not less than five years experience as an
appraiser; or
(b) if the parties are unable to agree as to an arbitrator
pursuant to clause (a) of this paragraph, then such Fair
Market Rent shall be determined by a single arbitrator in
accordance with the provisions of the Commercial
Arbitration Act S.B.C. 1986, c. 3 and amendments thereto
or legislation in substitution therefore.