Lease Agreement for 855 Homer Street, Vancouver, B.C. between 855 Homer Street Inc., Business Objects Corp., and Business Objects Americas
This lease agreement is between 855 Homer Street Inc. (the landlord), Business Objects Corp. (the tenant), and Business Objects Americas (the indemnifier). It covers the rental of office space at 855 Homer Street, Vancouver, B.C. The agreement outlines the terms for construction, rent, use of premises, repairs, insurance, assignment, and dispute resolution. Business Objects Americas guarantees certain tenant obligations. The lease includes options for renewal, rights of first refusal and offer, and tenant improvement allowances. The agreement is effective from May 1, 2005, and sets out the responsibilities and rights of all parties involved.
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ARTICLE 1 - DEFINITIONS | 1 | |||
1.1 Definitions | 1 | |||
ARTICLE 2 - CONSTRUCTION AND FIXTURING OF LEASED PREMISES | 9 | |||
2.1 Landlords and Tenants Work | 9 | |||
2.2 Acceptance of Leased Premises | 9 | |||
2.3 Tenants Work | 9 | |||
2.4 Tenants Trade Fixtures | 10 | |||
2.5 Signage | 10 | |||
ARTICLE 3 - DEMISE AND TERM | 10 | |||
3.1 Demise and Term | 10 | |||
3.2 Readjustment | 11 | |||
ARTICLE 4 - RENTAL | 11 | |||
4.1 Rental | 11 | |||
4.2 Tenants Portion | 12 | |||
4.3 Payment of Rental | 12 | |||
4.4 Reporting of Costs | 12 | |||
4.5 Rental for Irregular Periods | 13 | |||
4.6 Deposit | 13 | |||
ARTICLE 5 - CONDUCT OF BUSINESS | 13 | |||
5.1 Use of Leased Premises | 13 | |||
5.2 Landlords Special Remedies | 15 | |||
ARTICLE 6 - REPAIRS | 15 | |||
6.1 Tenants Repairs | 15 | |||
6.2 Landlords Examination of Leased Premises | 16 | |||
6.3 Repairs by Designated Tradesmen | 16 | |||
6.4 Repair at End of Term | 17 | |||
6.5 Fee for Supervision | 17 | |||
6.6 Landlords Right to Enter for Repairs | 17 | |||
6.7 Landlords Repairs | 18 | |||
6.8 Damage or Destruction | 18 | |||
6.9 Termination | 19 | |||
6.10 Tenants Obligation to Rebuild | 19 | |||
6.11 Landlords Election | 19 | |||
ARTICLE 7 - COMMON AREAS | 19 | |||
7.1 Tenants Covenants | 19 | |||
7.2 Landlords Covenants | 20 | |||
7.3 Satellite and Communications | 21 | |||
7.4 Emergency Generators | 21 | |||
ARTICLE 8 - ASSIGNMENT, SUBLETTING | 21 | |||
8.1 Tenants Covenants | 21 | |||
ARTICLE 9 - INSURANCE | 22 | |||
9.1 Tenant to Insure | 22 | |||
9.2 Landlord to Insure | 23 | |||
ARTICLE 10 - TENANT ALTERATIONS | 23 | |||
10.1 Painting and Decorations | 23 | |||
10.2 Landlords Property | 24 | |||
10.3 Prohibitions | 24 |
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10.4 No Liens | 25 | |||
ARTICLE 11 - PUBLIC UTILITIES, TAXES, ETC. | 25 | |||
11.1 Public Utilities, Business Tax, and Machinery | 25 | |||
11.2 Payment of Taxes | 25 | |||
11.3 Penalties | 26 | |||
11.4 Rental Taxes | 26 | |||
11.5 Indemnity | 26 | |||
ARTICLE 12 - EXCLUSION OF LIABILITY AND INDEMNITY | 26 | |||
12.1 Tenants Indemnity | 26 | |||
12. 2 Landlords Indemnity | 26 | |||
12.3 Exclusion of Liability | 27 | |||
ARTICLE 13 - LANDLORDS RIGHTS AND REMEDIES | 27 | |||
13.1 Default | 27 | |||
13.2 Bankruptcy | 28 | |||
13.3 Payment of Landlords Expenses | 29 | |||
13.4 Landlords Right to Relet | 29 | |||
13.5 Right of Landlord to Perform Tenants Covenants | 29 | |||
13.6 Interest | 30 | |||
13.7 Right of Landlord to Seize | 30 | |||
13.8 Non-waiver | 30 | |||
13.9 Remedies Cumulative | 30 | |||
ARTICLE 14 - MORTGAGES AND ASSIGNMENTS BY LANDLORD | 30 | |||
14.1 Sale or Financing of Building | 30 | |||
14.2 Subordination | 31 | |||
14.3 Status Statement | 31 | |||
14.4 Registration | 31 | |||
14.5 Assignment by Landlord | 31 | |||
14.6 Non-disturbance Agreement | 31 | |||
ARTICLE 15 - OVERHOLDING TENANT | 32 | |||
15.1 Month to Month Tenancy | 32 | |||
ARTICLE 16 - LANDLORDS COVENANTS | 32 | |||
16.1 Landlords covenants | 32 | |||
16.2 Exception | 33 | |||
16.3 Environment Warranty Landlord | 33 | |||
ARTICLE 17 - LEGAL RELATIONSHIP | 34 | |||
17.1 No Partnership | 34 | |||
17.2 Several Tenants | 34 | |||
17.3 Successors, etc. | 34 | |||
ARTICLE 18 - NOTICE | 34 | |||
18.1 Notice | 34 | |||
ARTICLE 19 - GENERAL CONDITIONS | 35 | |||
19.1 Garbage, Debris | 35 | |||
19.2 Compliance with Laws | 36 | |||
19.3 Rules and Regulations | 36 | |||
ARTICLE 20 - MISCELLANEOUS | 36 | |||
20.1 Management of Building | 36 | |||
20.2 Showing Leased Premises and Signage | 36 | |||
20.3 Time of the Essence | 36 | |||
20.4 Captions | 37 | |||
70.5 Governing Law | 37 | |||
20.6 Severability | 37 |
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20.7 Tenant Acknowledgements | 37 | |||
20.8 Entire Agreement | 37 | |||
20.9 Net Lease | 37 | |||
ARTICLE 21 - RENEWAL | 37 | |||
21.1 Renewal | 37 | |||
21.2 Office Premises | 38 | |||
21.3 Arbitration | 38 | |||
21.4 No Further Renewal | 39 | |||
21.5 Notification by Landlord | 39 | |||
ARTICLE 22 - RIGHT OF FIRST REFUSAL AND RIGHT OF FIRST OFFER | 39 | |||
22.1 Right of Fist Refusal to Lease Available Premises | 39 | |||
22.2 Right of First Offer | 40 | |||
22.3 Exceptions | 41 | |||
ARTICLE 23 - TENANTS OPTION TO SURRENDER | 41 | |||
23.1 Tenants Option to Surrender Leased Premises | 41 | |||
23.2 Exception | 42 | |||
23.3 Partial Floor Areas | 42 | |||
ARTICLE 24 - TENANT IMPROVEMENT ALLOWANCE AND DEMOLITION ALLOWANCE | 43 | |||
24.1 Tenant Improvement Allowance | 43 | |||
24.2 Demolition Allowance | 43 | |||
ARTICLE 25 - INDEMNITY | 44 | |||
25.1 Indemnity | 44 | |||
25.2 Enforcement of Indemnity | 44 | |||
25.3 Continuation of Indemnity | 44 | |||
25.4 No defence | 45 | |||
25.5 Modification in writing | 45 | |||
25.6 Authority | 45 | |||
25.7 Enurement | 45 | |||
25.8 Assignments, Reorganization, etc. | 45 | |||
25.9 New Lease | 45 | |||
25.10 Governing Law and Attornment | 46 | |||
ARTICLE 26 - DISPUTE RESOLUTION | 46 | |||
26.1 Dispute Resolution | 46 | |||
ARTICLE 27 - SIXTH FLOOR PREMISES | 46 | |||
27.1 Sixth Floor | 46 | |||
SCHEDULE A | A-l | |||
SCHEDULE B | B-l | |||
SCHEDULE C | C-l | |||
SCHEDULE D | D-l | |||
SCHEDULE E | E-l |
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(the Tenant)
1.1 | Definitions |
(a) | Acceptance Notice has the meaning given in section 22.1 (b); | ||
(b) | Additional Premises has the meaning given in section 22.1(a); | ||
(c) | Additional Rental means all monies to be paid by the Tenant whether to the Landlord or otherwise under this Lease except Minimum Rental; | ||
(d) | Architect means the professional architect for the Building from time to time named by the Landlord and as to any Architects certificates provided for in this Lease, the decision of the Architect and his or her certificate shall bind the parties hereto; | ||
(e) | Area of the Leased Premises means the square foot area of the Leased Premises calculated in accordance with BOMA; | ||
(f) | Assignment has the meaning in section 8.1(a); |
(g) | BOMA means a calculation of area in accordance with the methods of measuring rentable office areas as described in the Standard Method for Measuring Floor Area in Office Buildings, ANSI Z65.1-1996, as promulgated by the Building Owners and Managers Association International; | ||
(h) | Building means the building located at 855 Homer Street, Vancouver, British Columbia, together with all improvements, machinery and equipment located therein, all as situate within and upon the Property and includes all common property for the Strata Corporation; | ||
(i) | Commencement Date means May 1, 2005; | ||
(j) | Common Area Maintenance Costs means the total, without duplication, of the expenses incurred by the Landlord for operating, renting, maintaining, insuring, repairing the Building, including the Common Facilities and the Common Areas of the Building based on generally accepted accounting principles including, subject to the limitations set forth below, the following: |
(i) | the costs: |
(A) | of repairing, operating and maintaining the Building and the Common Facilities and Common Areas of the Building; | ||
(B) | incurred by the Landlord to make alterations, replacements or additions to the Building or any Common Facilities or Common Areas which: |
(1) | reduce Common Area Maintenance Costs; | ||
(2) | are to the following equipment serving the Building (unless such costs are material upgrades): |
a) | the Heating Plant; | ||
b) | elevator; | ||
c) | security; and | ||
d) | Safety; |
(3) | need replacement from time to time as a result of ordinary wear and tear (e.g. carpets); | ||
(4) | improve the operation of the Building in a manner which is of material benefit to either the Tenant or the operation of the Tenants business; or | ||
(5) | are necessary, in the opinion of the Landlord, acting reasonably to maintain the Building to its current standard; |
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(ii) | periodic depreciation, at rates determined by the Landlord, but not to exceed the maximum permitted to the Landlord under the provisions of the Income Tax Act, Canada, as amended from time to time, or any legislation substituted therefor, on the equipment and machinery employed in operating, maintaining, repairing, and replacing the Common Facilities or the Common Areas and to be amortized over the useful life of such equipment and machinery; | ||
(iii) | premiums paid by the Landlord or by others for the insurance described in section 9.2 of this Lease, and for insurance against Insurable Hazards in respect of the Common Areas; | ||
(iv) | the expense for gardening and landscaping, window cleaning, janitorial services, equipment, lighting, sanitary control, removal of snow, and the cleaning of Parking Facility; | ||
(v) | independent contract costs, and wages, paid for maintenance, security and operating personnel, whether full or part time, which pertain to the Building including payments for workers compensation, unemployment insurance, vacation pay, Canada Pension Plan, and other fringe benefits whether statutory or otherwise; | ||
(vi) | the cost of equipment furnished to personnel in respect of maintaining and repairing the Common Areas; | ||
(vii) | the cost of electrical power, heating, air-conditioning, lighting and all utilities furnished to the Common Areas and Common Facilities; | ||
(viii) | all other expenses, paid or payable by the Landlord in connection with the operation of the Building, including, without duplication, all assessments and maintenance fees levied by the Strata Corporation in respect of common or other expenses incurred by the Strata Corporation which the Strata Corporation is entitled to levy pursuant to the Strata Property Act or the bylaws of the Strata Corporation; and | ||
(ix) | an administrative and supervisory fee, being an agreed pre-estimate of the overhead expenses of the Landlord which are not reasonable capable of being allocated or directly attributed to the maintenance, operation, supervision or administration of the Building, equal to five percent (5%) of the minimum rental received from the Gross Leasable Area. |
(A) | all amounts which otherwise would be included in Common Area Maintenance Costs which are recovered by the Landlord from tenants (other than under sections of their leases comparable to section 4.1(b) of this Lease); | ||
(B) | such of the Common Area Maintenance Costs as are recovered from insurance proceeds, to the extent such recovery represents |
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reimbursements for costs previously included in Common Area Maintenance Costs; | |||
(C) | interest on debt and capital retirement of debt; | ||
(D) | ground rent payable by the Landlord to the owner of the Property under any ground lease of the Property; | ||
(E) | the amount allocated from time to time by the Landlord to, and relating to the Property and Building of, any capital tax payable by the Landlord or the owners of the Property and Building under any legislation, provincial or federal, imposing taxes on account of capital, calculated as if the Building were the only property of the Landlord or the owners of the Property and Building; | ||
(F) | costs of replacing structural components of the roof, foundations, subfloors and outer walls of the Building and material repairs to such components, being any repairs which, when taken together with any other repairs to the same component over any five (5) consecutive years, constitute a repair to 35% of the roof, foundations, subfloors or outer walls, as the case may be; | ||
(G) | costs for the initial installation of all external glazing and costs of correcting construction defects as they relate to the base Building finishes; | ||
(H) | costs for which the Landlord is reimbursed by other tenants of the Building; | ||
(I) | any bad debt loss, rent loss, or reserves for bad debts or rent loss; | ||
(J) | costs associated with the operation of the business entity which constitutes the Landlord as the same are distinguished from the costs of operation of the Building, including accounting and legal matters, costs of defending any lawsuits with any mortgagee, costs of selling, syndicating, financing, mortgaging or hypothecating any of the Landlords interest in the Building, costs of any disputes between the Landlord and its employees (if any) not engaged in the Building operation, disputes of Landlord with building management, or fees or costs paid in connection with disputes with other tenants; | ||
(K) | fines or penalties and interest thereon arising from the acts or omissions of the Landlord or those for whom it is responsible for at law; | ||
(L) | subject to section 9.2, any damage or loss resulting from any casualty for which the Landlord receives insurance proceeds (except to the extent of any deductible); | ||
(M) | subject to section 16.3, the cost of removing, encapsulating or otherwise abating any Contaminants in or about the Building (except if placed or |
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caused by the Tenant or those for whom the Tenant is responsible at law); | |||
(N) | legal fees pertaining to leasing issues, space planners fees, real estate brokers leasing commissions, lease take-over costs, advertising and marketing expenses and all other leasing expenses; and | ||
(O) | the wages of an employee for the periods of time that such employee is not devoting his or her tune to the Building (allocations of the time pooled employees are permitted); |
(k) | Common Areas means those areas that are designated (which designation may be changed from time to time) by the Landlord as Common Areas, including, without limitation, the roof including the roof membrane, exterior walls, public walkways, public hallways, public washrooms, mechanical rooms, Parking Facility, elevators, sidewalks, landscaped areas and driveways; | ||
(l) | Common Facilities means the electrical, public address systems, heating, ventilating, air-conditioning, plumbing, and drainage equipment and installations and any enclosures constructed therefor, stairways, signs, lamp standards, public washroom facilities and parking deck and all other facilities which are provided or designated (which designation may be changed from time to time) by the Landlord; | ||
(m) | Contaminants means any pollutants, contaminants, deleterious substances, underground or aboveground tanks, asbestos materials, urea formaldehyde, dangerous substances or goods, hazardous, corrosive or toxic substances, special waste or waste of any kind or any other substance which is now or hereafter prohibited, controlled or regulated under Environmental Laws; | ||
(n) | Cost of Heating, Ventilating, and Air-conditioning means the total, without duplication, of the expenses incurred by the Landlord for operating, maintaining, repairing, and replacing the Heating Plant and any part of the heating, ventilating and air conditioning system based on generally accepted accounting principles including, subject to the limitations set forth below, the following: |
(i) | The amount expended by the Landlord or others for supply and/or storage of fuel, water, electricity, oil, gas, or other form of energy and additives for the Heating Plant; | ||
(ii) | Independent contract costs, and wages, paid to maintenance and operating personnel, for maintaining and operating the Heating Plant, including payments for workers compensation, unemployment insurance, vacation pay, Canada Pension Plan, and other fringe benefits whether statutory or otherwise; | ||
(iii) | The cost of acquiring, maintaining and replacing equipment used to maintain and repair the Heating Plant; | ||
(iv) | The cost of repairs, maintenance, and replacements to the Heating Plant that are properly chargeable, in accordance with sound accounting practice, to operating expenses, as distinguished from capital replacements or improvements; |
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(v) | Depreciation, at rates determined by the Landlord, but not to exceed the maximum permitted under the provisions of the Income Tax Act, Canada, from time to time, or any legislation substituted there for, on the capital cost of the facilities in the Heating Plant, and any capital replacements thereto to be amortized over the useful life of such facilities; and | ||
(vi) | the total annual cost of boiler and pressure vessels insurance coverage paid by the Landlord or by others for insurance. |
(i) | all amounts which otherwise would be included in Cost of Heating, Ventilating and Air-conditioning which are recovered by the Landlord from tenants (other than under sections of their leases comparable to section 4.1(b) of this Lease); | ||
(ii) | such of the Cost of Heating, Ventilating and Air-conditioning as are recovered from insurance proceeds, to the extent such recovery represents reimbursements for costs previously included in Cost of Heating, Ventilating and Air-conditioning; | ||
(iii) | costs for which the Landlord is reimbursed by other tenants of the Building; | ||
(iv) | subject to section 9.2, any damage or loss resulting from any casualty which the Landlord covenanted to insure against (except to the extent of any deductible); and | ||
(v) | capital costs for replacements resulting in material upgrades to existing building equipment or systems, including the replacement of Heating Plant systems and the main electrical transformers; |
(o) | Cost of Insurance means the cost to the Landlord to take out public liability insurance and rental insurance in respect of the Building and to insure the Building against damage from Insurable Hazards to the limits that the Landlord may from time to time determine but not in excess of the replacement cost of the Building, and not in duplication of the insurance carried by the Strata Corporation, the cost of which is included in Common Area Maintenance Costs; | ||
(p) | Demolition Allowance has the meaning given in section 24.2; | ||
(q) | Demolition Work has the meaning given in section 24.2; | ||
(r) | Environmental Laws means any statutes, laws, regulations, orders, bylaws, standards, guidelines, permits and other lawful requirements of any governmental authority having jurisdiction over the Leased Premises and the Building now or hereafter in force relating in any way to the environment, health, occupational health and safety, product liability or transportation of dangerous goods, including the principles of common law and equity; | ||
(s) | First Refusal Premises has the meaning given in section 22.1; | ||
(t) | Fixturing Period means the period set out in section 2.1(c); |
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(u) | Fixturing Period Commencement Date means the later of the completion of the Landlords Work and February 1, 2005; | ||
(v) | Gross Leasable Area means the aggregate floor area in square feet of all leasable area in the Building excluding Common Areas and for the purposes of this definition floor area shall be calculated in accordance with BOMA and if there is a dispute as to the calculation of any area in this definition it is agreed that that dispute shall be resolved by a professional British Columbia land surveyor named by the Landlord, whose decision shall bind the Landlord and the Tenant; | ||
(w) | Seating Plant means the heating, ventilating, and air-conditioning plants and systems necessary to heat, ventilate, and air-condition the Building, including the Common Areas, and all Leased Premises therein and includes, without limitation, the chilled or heated water or air generating facilities and any storage and distribution systems leading therefrom together with any cooling towers, pumps and all other equipment and facilities necessarily connected therewith; | ||
(x) | Indemnity has the meaning given in section 26.1; | ||
(y) | Insurable Hazards means fire and those other perils for which insurance is available and which in the opinion of the Landlord, acting reasonably, should be protected by insurance; | ||
(z) | Landlords Work means the work to be performed by the Landlord at its cost and expense more particularly set out in section A of Schedule A hereto; | ||
(aa) | Lease means this Lease, all schedules attached hereto, the Architects certificates, if any, all certificates issued by the Landlord under this Lease and the rules and regulations made from time to time by the Landlord under the provisions of this Lease; | ||
(bb) | Lease Cancellation Provision has the meaning given in section 23.1; | ||
(cc) | Lease Year means a twelve (12) month period commencing with the first day of January in one calendar year and ending on the last day of December thereof, provided that the first Lease Year shall commence on the Commencement Date and end on the last day of December next following and the last Lease Year shall end on the last day of the term of this Lease and commence on the first day of January next proceeding that date; | ||
(dd) | Leased Premises means the premises located at 855 Homer Street, Vancouver, B.C. comprising those portions of Strata Lot 2, Strata Plan LMS156 as shown crosshatched on the plan annexed hereto as Schedule C, subject to section 27.1 of this Lease; | ||
(ee) | Minimum Rental means the minimum annual rental reserved hereunder payable by the Tenant as set out in section 4.1(a); | ||
(ff) | Negotiation Period has the meaning given in section 26.1; | ||
(gg) | Parking Facility means the parking garage located in the Building; |
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(hh) | Property means the lands situate in the City of Vancouver, in the Province of British Columbia more particularly described in Schedule D annexed hereto together with the buildings, improvements and facilities from time to time located thereon; | ||
(ii) | Renewal Notification Period has the meaning given in section 21.1; | ||
(jj) | Rental means and includes Additional Rental and Minimum Rental; | ||
(kk) | Rental Taxes means any tax or duty charged upon the Landlord or the Tenant which is levied, rated or assessed on the act of entering into this Lease or otherwise on account of this Lease or on the use or occupancy of the Leased Premises or any portion thereof, or on the Rental (except the Rental Taxes component thereof) payable under this Lease, whether existing as at the date hereof or hereafter charged by any governmental authority, including without limitation, a goods and services tax imposed under Part IX of the Excise Tax Act, a value added tax, a business transfer tax, a retail sales tax, a federal sales tax, an excise tax or duty or any tax similar to the foregoing, together with any penalty or interest assessed or imposed with respect to the foregoing taxes; | ||
(ll) | Right of First Refusal has the meaning given in section 22.1; | ||
(mm) | Rules and Regulations means the rules and regulations set forth in Schedule E, as may be amended, replaced or modified by the Landlord from time to time, acting reasonably provided any such amendments, replacements or modifications do not materially adversely affect the Tenant; | ||
(nn) | Special Equipment means any special equipment required by the Tenant to be installed in the Leased Premises, including but not limited to telephone, computer and other special communications equipment and facilities; | ||
(oo) | Storage Area has the meaning given in section 7.1(c); | ||
(pp) | Strata Corporation means the Strata Corporation which was formed under the Strata Property Act, S.B.C. 1998 c. 43 upon the deposit of the strata plan dividing the Property into strata lots and the council of that Strata Corporation, as constituted pursuant to the provisions of the Strata Property Act; | ||
(qq) | Strata Plan means Strata Plan LMS156; | ||
(rr) | Surrender Date has the meaning given in section 23.1(a) | ||
(ss) | Surrendered Area has the meaning given in section 23.1; | ||
(tt) | Tax Cost means the total, without duplication, of sums paid or payable by the Landlord or others in respect of Taxes; | ||
(uu) | Taxes means the real property taxes (including local improvement rates), licence fees, assessments or other charges, rates, duties, assessments, water taxes or school taxes levied or imposed by any provincial, municipal, school or other authority against Strata Lot 2, Strata Plan LMS156; | ||
(vv) | Tenant Improvement Allowance has the meaning given in section 24.1; |
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(ww) | Tenants Work means the work to be performed by the Tenant at its cost and expense more particularly set out in Section B of Schedule A; and | ||
(xx) | Term means the term of this Lease set out in section 3.1, and any renewal or extension thereof. |
2.1 | Landlords and Tenants Work |
(a) | Landlords Work. The Tenant acknowledges that it has entered into these presents on the express understanding that the Landlords Work in the Leased Premises is limited to the scope of construction delineated as Landlords Work in Schedule A which are to be at the Landlords sole cost and expense. The Landlord covenants and agrees that subject to force majeure, it will substantially complete the Landlords Work prior to the Fixturing Period Commencement Date. | ||
(b) | Tenants Work. The Tenants Work includes, but is not limited to, the installation, at the option of the Tenant, of a stairwell between the fifth and sixth floors of the Building, and the procurement and installation, at its own cost and expense, of those items set out in Schedule A which are to be installed and/or procured by the Tenant in accordance with the procedures set out in Schedule B and all that other work that the Tenant may desire to perform in the Leased Premises and to which the Landlord may agree (provided no work shall be commenced by the Tenant until that time as plans and specifications relating to such work have been supplied to the Landlord and the Architect and approved by them in writing, acting reasonably). The Tenant shall be responsible for obtaining all building permits and licences with respect to the Tenants Work, at it sole cost and expense. | ||
(c) | Fixturing Period. The Tenant shall have possession of the Leased Premises for the period commencing on the Fixturing Period Commencement Date up to and including April 30, 2005 (the Fixturing Period) for the purpose of fixturing the Leased Premises. Notwithstanding any other provision of this Lease, the Tenant shall not be required to pay any Rental during the Fixturing Period. In the event the Tenant completes its fixturing of the Leased Premises prior to the end of the Fixturing Period, the Tenant may open for business in the Leased Premises prior to the Commencement Date, but the Tenants obligation to pay Rental shall not begin until the Commencement Date. Except with respect to the payment of Rental during the Fixturing Period, the Tenant shall be bound by all the terms and conditions of this Lease from and after the Fixturing Period Commencement Date. |
2.2 | Acceptance of Leased Premises | |
Subject to sections 2.1(a) and 27.1, the Tenant hereby accepts the Leased Premises on an as is basis. | ||
2.3 | Tenants Work | |
Any work or equipment other than those items specifically enumerated as Landlords Work shall be performed and supplied by the Tenant at its sole cost and expense, and the Tenant covenants and agrees that it shall, in accordance with the requirements of the relevant governmental |
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authorities, if any and with the procedures set out in Schedule B and subject to the provisions of Article 10 respecting obtaining the consent of the Landlord, fully equip the Leased Premises with all trade equipment, lighting fixtures, furniture, operating equipment including any Special Equipment the Tenant may require, furnishings, fixtures, floor coverings, heating, ventilating and air-conditioning equipment, and any other equipment necessary for the proper operation of the Tenants business and that installation shall be completed without damage to the structure of the Leased Premises or to the heating, ventilating, air-conditioning, sprinklers, plumbing, electrical, and other mechanical systems of the Building. | ||
2.4 | Tenants Trade Fixtures | |
The Tenant agrees that any alterations, additions, improvements, and fixtures made to or installed upon or in the Leased Premises at the expense of the Tenant (other than, at the option of the Tenant, the Tenants Special Equipment and trade fixtures), shall remain upon and be surrendered to the Landlord with the Leased Premises as part thereof upon the expiration or earlier termination of this Lease and shall become the absolute property of the Landlord. In the event the Tenant elects to remove its Special Equipment and trade fixtures, or any part thereof, the Tenant covenants and agrees to make good any damage or injury caused to the Leased Premises resulting from that removal, reasonable wear and tear only excepted. | ||
2.5 | Signage |
(a) | The Tenant may install exterior Building signage and lobby and floor directory signage of a kind and size and affixed or installed in a manner approved in writing by the Landlord, such approval not to be unreasonably withheld or delayed, and subject to the prior approval of the City of Vancouver, where required. The Landlord agrees, at the Tenants cost and expense, to obtain signage approval for the Tenant with respect to the building directory and any other Building signage from the City of Vancouver, and to provide a power source for the Tenants backlit signage, at the cost of the Tenant. | ||
(b) | Throughout the Term, provided the Tenant fully occupies at a minimum, floors four (4) and five (5) of the Building, the Tenant shall have, at its sole cost and expense, but with no additional payment to the Landlord, the exclusive tenant identity related signage rights with respect to the corner of the Building at Homer Street and Smithe Street at the fifth floor level, similar to the signage maintained by the Tenant in its leased premises at the building located at 910 Mainland Street, Vancouver, British Columbia, subject to the approval by the Landlord, acting reasonably, of the design and location of such signage, and to approval by the City of Vancouver, if required. | ||
(c) | At the expiry or sooner determination of the Term, all signs shall be removed, at the request of the Landlord, by the Tenant and the Tenant shall make good any damage to the Leased Premises or the Building caused by such removal. |
3.1 | Demise and Term | |
The Landlord does hereby demise and lease unto the Tenant the Leased Premises TO HAVE AND TO HOLD for and during the term of ten (10) years (the Term) commencing on the Commencement Date, and terminating on the 30th day of April, 2015. If the Term commences |
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a date that is not the first of the month, the Term shall also include that part of the month in which the Term commences. The Tenant shall be entitled, for the benefit of the Leased Premises, to enjoy upon the provisions set out in this Lease the use in common with others entitled thereto of the Common Areas and Common Facilities. |
3.2 | Readjustment | |
If the Area of the Leased Premises was estimated by or on behalf of the Landlord for the purposes of this Lease because the Area of the Leased Premises thereof could not be accurately calculated prior to the execution of the Lease, or if the Area of the Leased Premises changes at any time during the Term, or if the sixth floor measurement changes because the amenity common area is relocated as contemplated by section 27.1 of this Lease, then, when the Area of the Leased Premises can be accurately calculated and if the estimate previously made was not correct or has changed, the Area of the Leased Premises shall then be calculated as provided herein and the appropriate adjustments made with respect to Minimum Rental payable under this Lease. |
4.1 | Rental | |
The Tenant covenants and agrees to pay to the Landlord, or as the Landlord may in writing direct, in lawful money of Canada, without any set-off, compensation or deduction whatsoever on the days and at the times hereinafter specified. Rental which shall include the aggregate of the sums required to be paid by sections 4.1 (a) and 4.1(b) below: |
(a) | Minimum Rental. During years one (1) through ten (10) of the Term, the Tenant shall pay Minimum Rental equal to Sixteen Dollars ($16.00) per square foot per annum, being Seven Hundred Twenty Six Thousand One Hundred Ninety Two Dollars per annum ($726,192.00), plus applicable taxes, payable in equal consecutive monthly instalments on the first day of each month in advance, each in the sum of Sixty Thousand Five Hundred and Sixteen Dollars ($60,516.00) plus applicable taxes, commencing on the Commencement Date and continuing on the first day of each and every month thereafter to and including the first day of April, 2015. The Landlord acknowledges and agrees that the Rental shall be abated for the first two (2) months of the Term and the Minimum Rental shall be abated for the third (3rd) month of the Term. In addition, provided the Tenant has not exercised the Lease Cancellation Provision, the Rental shall be abated for an additional period of two (2) months with respect to the fourth floor only of the Premises at the beginning of Lease Year eight (8) of the Term. | ||
(b) | Additional Rental. Together with the Tenants portion of each of the following: | ||
(i) Common Area Maintenance Cost; |
(ii) | Cost of Insurance; | ||
(iii) | Cost of Heating, Ventilating and Air-conditioning; and | ||
(iv) | Tax Cost. |
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4.2 | Tenants Portion | |
The Tenants portion of the costs described in sections 4.1(b)(i), (ii) and (iii) shall be that sum which is equal to the aggregate of that cost multiplied by a fraction, the numerator of which is the Area of the Leased Premises and the denominator of which is the Gross Leasable Area. The Tenants portion of the cost described in section 4.1(b)(iv) shall be that sum which is equal to the aggregate of that cost multiplied by a fraction, the numerator of which is the Area of the Leased Premises and the denominator of which is the leasable area of Strata Lot 2, Strata Plan LMS156 calculated in accordance with BOMA. The Landlord estimates that the Tenants portion of the costs described in section 4.1(b) is $10.25 per square foot for 2005. The Landlord shall have the right to re-estimate the Additional Rental on an annual basis. | ||
4.3 | Payment of Rental | |
The Rental provided for in this Article 4 shall be paid by the Tenant as follows: |
(a) | First Monthly Instalment. The Tenant shall pay the Rental for the first month in which Rental is not abated pursuant to section 4.1 (a) in advance and the amount paid for such Rental shall be applied as follows: |
(i) | where the Commencement Date is the first day of a month, that instalment shall be in respect of that month; and | ||
(ii) | where the Commencement Date is not the first day of a calendar month, Rental for the period from the Commencement Date to the first day of the next ensuing calendar month shall be prorated on a per diem basis and paid on the first day of that month and the instalment of Minimum Rental paid upon the Commencement Date shall be in respect of the Minimum Rental for the first full calendar month of the Term. |
Thereafter in either case subsequently monthly instalments shall each be in advance on the first day of each ensuing calendar month during the Term. | |||
(b) | Additional Rental Payments. It is agreed that the Landlord may estimate the amount of Additional Rent for each year and upon notice from the Landlord, the Tenant shall pay the amount so estimated in instalments of such amount or amounts and at such time or times as the Landlord shall determine, including but without limiting the generality of the foregoing, on the 1st day of each and every month of the Term. Within sixty (60) days after determination of the actual amount of the Additional Rent for which the Tenant is responsible, there shall be an appropriate adjustment between the Landlord and the Tenant so that the total amount paid by the Tenant pursuant to this section in advance or by instalments or otherwise does not exceed the actual amount of Additional Rent for which the Tenant is responsible in respect of the year for which the Tenant made advance or instalment payments. |
4.4 | Reporting of Costs | |
Within one hundred and twenty (120) days after the end of each Lease Year, the Landlord shall furnish to the Tenant a statement of the actual cost during that Lease Year of those items comprised in Additional Rental as set out in section 4.l(b) and the Tenants portion thereof |
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(a) | the Tenant shall have the right to inspect the books and records of the Landlord pertaining to those costs upon reasonable notice at reasonable times; | ||
(b) | if the amount payable by the Tenant as shown on that statement is greater or less than the Additional Rental paid by the Tenant to the Landlord under section 4. l(b) the proper adjustment shall be made within sixty (60) days after delivery of the statement; and | ||
(c) | any payment made by the Landlord or made by the Tenant to the Landlord in respect of any adjustment made hereunder, shall be without prejudice to the right of the Landlord to claim a readjustment. |
4.5 | Rental for Irregular Periods | |
All Rental reserved herein shall be deemed to accrue from day to day, and if for any reason it shall become necessary to calculate Rental for irregular periods of less than one year an appropriate pro-rata adjustment shall be made on a daily basis in order to compute Rental for that irregular period. | ||
4.6 | Deposit | |
The Tenant shall pay the sum of Sixty Four Thousand Seven Hundred Fifty Two Dollars and Twelve Cents ($64,752.12), equal to one months Minimum Rental plus GST, as a deposit, which sum shall be applied by the Landlord to the payment of Rental including GST, for the first month of the Term during which Rental is payable by the Tenant and the balance, if any, shall be retained by the Landlord as a security deposit and no interest in favour of the Tenant shall accrue on the deposit. |
5.1 | Use of Leased Premises | |
The Tenant covenants with the Landlord that: |
(a) | Operation of Business. The Tenant shall not use or occupy the Leased Premises or any part thereof for any purpose other than the operation of general administrative, training, and field support office use associated with any software and computer engineering or development company and office use. The use as aforesaid shall not be changed without |
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the express written consent of the Landlord, such consent not to be unreasonably or arbitrarily withheld or delayed; | |||
(b) | Occupancy. The Tenant shall deliver at least sixty (60) days prior written notice to the Landlord if the Tenant intends to vacate the Leased Premises; | ||
(c) | Signs. Except as provided in section 2.5, the Tenant shall not erect or place or suffer to be erected or placed, or maintain any signs of any nature or kind whatsoever either on the exterior walls of the Leased Premises or on the walls or the halls of any Common Areas; | ||
(d) | Nuisance. The Tenant shall not carry on or perform or suffer or permit to be carried on, performed or suffered on the Leased Premises any business practice or act or engage in any activity which may be deemed a nuisance or a menace or which in any way may injure the Building or any part thereof; | ||
(e) | Not to Affect Landlords Insurance. In respect to the insurance of the Landlord the following shall apply: |
(i) | the Tenant shall not upon the Leased Premises do or permit to be done, or omit to do, anything which shall cause or have the effect of causing the rate of insurance upon the Building or any part thereof to be increased; | ||
(ii) | if the insurance rate shall be increased by reason of action by the Tenant, the Tenant shall pay to the Landlord as Additional Rental the amount by which the insurance premiums shall be so increased; | ||
(iii) | the Tenant shall not store or permit to be stored upon or in the Leased Premises anything that is not used by the Tenant in connection with its use of the Leased Premises as specified in section 5.1(a) nor anything of a dangerous, inflammable or explosive nature nor anything which would have the effect of increasing the Landlords insurance costs or of leading to the cancellation of that insurance; and | ||
(iv) | it is agreed that if any insurance policy upon the Leased Premises or the Building shall be cancelled by the insurer by reason of the use and occupation of the Leased Premises or any part thereof by the Tenant or by any assignee, subtenant, concessionaire, or licensee of the Tenant, or by anyone permitted by the Tenant to be upon the Leased Premises, the Landlord may at its option terminate this Lease by notice in writing of that termination, and thereupon Rental shall be apportioned and paid in full to the date of that notice of termination of this Lease, and the Tenant shall immediately deliver up vacant possession of the Leased Premises to the Landlord, provided that the Landlord may at its option and at the expense of the Tenant enter upon the Leased Premises and rectify the situation causing that cancellation or rate increase; |
(f) | Strata Corporation Bylaws. The Tenant shall promptly comply with the bylaws of the Strata Corporation which are the Standard Bylaws appended to the Strata Property Act, S.B.C. 1998, c. 43; | ||
(g) | Strata Property Act Undertaking. The Tenant shall provide to the Strata Corporation an undertaking to comply with the provisions of the Strata Property Act, and the Strata Corporation bylaws and rules, in the form provided by the Strata Property Act; |
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(h) | Strata Property Act Voting Rights. Notwithstanding the provisions of Section 148 of the Strata Property Act or such successor legislation as may be enacted in substitution therefor, the Landlord and the Tenant agree that nothing herein shall be deemed to operate as an assignment by the Landlord to the Tenant of the rights, powers and obligations of the Landlord as owner, under the said Strata Property Act, including but not limited to voting rights; | ||
(i) | Environment Warranty. The Tenant represents and warrants that to its knowledge it does not utilize any Contaminants in its operations and the Tenant covenants, warrants and agrees with the Landlord that it will not bring Contaminants onto the Leased Premises. The Tenant further covenants and agrees to indemnify the Landlord and its directors, officers, employees, agents, successors, and assigns from any and all liabilities, actions, damages, claims, remediation cost recovery claims, losses, costs, orders, fines, penalties, and expenses whatsoever (including all legal and consultants fees and expenses and the cost of remediation of the Leased Premises and any adjacent property) arising from or in connection with: |
(i) | any breach of or non-compliance with the provisions of this section by the Tenant; or | ||
(ii) | the release of any Contaminants at or from the Leased Premises related to or as a result of the use and occupation of the Leased Premises or any act or omission of the Tenant or any person for whom it is in law responsible. |
5.2 | Landlords Special Remedies |
(a) | The Tenant acknowledges that all its covenants and obligations set out in section 5.1 hereof are covenants and obligations designed for the mutual benefit and protection of all tenants in the Building. | ||
(b) | If the Tenant shall be in breach of any of these covenants or obligations or shall fail to observe or perform any of them then without prejudice to any other right or remedy which the Landlord may have under the terms of this Lease or otherwise at law or equity, the Landlord shall have the right to bring action in any court of competent jurisdiction against the Tenant for a judgment or order directing the Tenant to remedy that breach and to observe and perform that covenant or obligation. |
6.1 | Tenants Repairs | |
The Tenant covenants with the Landlord that: |
(a) | the Tenant shall at all times during the Term hereof at its own cost and expense, repair, maintain and keep all of the Tenants equipment and fixtures in the Leased Premises (but no part of the Common Facilities unless damaged by the Tenant or those for whom the Tenant is responsible at law) in good order and repair and replace them when necessary, |
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(i) | the Tenant shall be exempted for repairs for reasonable wear and tear and repairs for which the Landlord is responsible under section 6.7, except: |
(A) | as provided for in section 6.2; and | ||
(B) | provided that if repairs, replacements or rebuilding, including rectifying any damage and destruction under sections 6.2 and 6.3, by the Landlord are required as a result of the negligent act or omission of the Tenant, its contractors, agents or employees, the Tenant shall pay the Landlord on demand the cost of those repairs as Additional Rental; and |
(ii) | the Tenant shall perform maintenance, effect repairs and replacements, and decorate at its own cost and expense as and when necessary or reasonably required to do so by the Landlord; |
(b) | the Tenant shall install, operate, repair and maintain any Special Equipment at its sole cost and expense; and | ||
(c) | the Tenant shall be responsible for its own janitorial services within the Leased Premises and shall coordinate such services with the Building manager. |
6.2 | Landlords Examination of Leased Premises | |
The Tenant covenants and agrees that the Landlord or the Strata Corporation and any employee, servant or agent of the Landlord, or the Strata Corporation shall be entitled, at any reasonable time during normal business hours (provided the Landlord has provided the Tenant with not less than 48 hours prior written notice of its intention to enter the Leased Premises) and during any emergency (without prior notice), from time to time, to enter and examine the state of maintenance, repair, decoration, and order of the Leased Premises, all of the Tenants equipment and fixtures within the Leased Premises and any improvements now or hereafter made to the Leased Premises, and the Landlord may give notice to the Tenant requiring that the Tenant perform the maintenance or effect the repairs, replacements, or decorations that may be found necessary from that examination, but the failure of the Landlord to give any notice shall not relieve the Tenant from its obligation to maintain, repair, decorate, and keep the Leased Premises and appurtenances in good order and repair as set out in section 6.1 and to make the replacements that may be necessary. | ||
6.3 | Repairs by Designated Tradesmen | |
The Tenant shall, when necessary, and whether upon receipt of notice from the Landlord or not, effect and pay for the maintenance, repairs, replacements, or decoration that is the responsibility of the Tenant under section 6.1 and the following shall apply: |
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(a) | no maintenance, repairs, or replacements, to the structure, any perimeter wall, the sprinkler system, the heating, ventilating, air-conditioning, plumbing, electrical or mechanical equipment, or the concrete floor shall be made without the prior written consent of the Landlord; | ||
(b) | in respect of the heating, ventilating and air conditioning equipment: |
(i) | if the equipment malfunctions the Tenant shall immediately notify the Landlord in writing; | ||
(ii) | the Landlord will provide tradesmen to regularly maintain and service the equipment, and to complete necessary repairs; | ||
(iii) | all costs associated with maintenance and service and any repair will be for the account of the Tenant, and will be payable as Additional Rental; | ||
(iv) | all monies owed by the Tenant under this section 6.3 shall be considered Additional Rental due and payable to the Landlord hereunder; and | ||
(v) | the Landlord shall have the same rights and remedies and may take the same steps for recovery thereof as for Additional Rental in arrears. |
6.4 | Repair at End of Term | |
At the end of the Term (unless the Term is terminated earlier as provided by this Article 6) the Tenant shall deliver to the Landlord vacant possession of the Leased Premises in the condition in which the Tenant is required to maintain the Leased Premises. |
6.5 | Fee for Supervision | |
Should the Landlord deem it necessary to undertake any repairs or to do anything which is required to be undertaken or done by the Tenant under this Lease and the Tenant has failed to carry out such repairs after receiving ten days notice in writing from the Landlord requiring such repairs to be done, then the Tenant shall pay to the Landlord as a fee for supervision or carrying out the Tenants obligation an amount equal to 15% of the monies expended or of the cost of repairs or other work carried out by or under the supervision of the Landlord, which amount shall be in addition to the cost of that work or monies expended for which the Tenant shall also reimburse the Landlord. | ||
6.6 | Landlords Right to Enter for Repairs | |
The Tenant covenants and agrees that the agents and representatives of the Landlord shall have the right to enter the Leased Premises at all times during business hours (provided the Landlord has provided the Tenant with not less 48 hours prior written notice of its intention to enter the Leased Premises) and during any emergency (without prior notice) to examine the Leased Premises or to make alterations or repairs as they shall deem necessary for the safety or preservation or proper administration or improvement of the Leased Premises and of the Building, and of any premises adjoining the Leased Premises. |
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6.7 | Landlords Repairs | |
So long as the Landlord does not terminate this Lease or elect not to rebuild the Building under the provisions of section 6.8 the Landlord covenants with the Tenant to: |
(a) | repair, maintain and replace when necessary the Heating Plant and all heating, ventilating, air-conditioning, plumbing, sprinkler, diffusers, heat pumps, mechanical and electrical equipment and fixtures (including all the parts, wiring and pipes thereof), which costs shall be specifically included in the Common Area Maintenance Cost unless specifically excluded from that definition; | ||
(b) | subject to section 6.7(c), materially repair and replace when necessary the structural support components of the roof (including the roof membrane), foundations, subfloors and outer walls of the Building; | ||
(c) | notwithstanding any other provision of this Lease, pursuant to the Strata Property Act, the Strata Corporation shall be responsible for all structural repairs to the Building, including repairs to the roof, foundations and bearing structure of the Building and repairs of damage to the Building caused by perils against which the Strata Corporation shall be obligated to insure. Provided, however, the Landlord shall, in its capacity as the owner of the Leased Premises, cause the Strata Corporation to make repairs to the Leased Premises or the Building as required pursuant to the Strata Property Act. |
6.8 | Damage or Destruction | |
Subject to the Strata Corporations rights pursuant to section 159 of the Strata Property Act, if the Leased Premises, or any part thereof, shall at any time during the Term be destroyed or damaged and, in the opinion of the Landlords Architect the Leased Premises cannot be repaired within one hundred twenty (120) days from the date of such destruction or damage, or in the event of damage to fifty percent (50%) or more of the Building or of the substantial destruction of the Building whether or not the Leased Premises are damaged, then: |
(a) | the Rental hereby reserved, or a proportionate part thereof according to the nature and extent of the destruction or damage sustained, shall be suspended and abated until the Landlord shall have rebuilt, repaired, or made fit the Leased Premises or the Building for the purpose of the Tenant; | ||
(b) | at the sole discretion of the Landlord to be exercised within sixty (60) days after the occurrence of that damage or destruction by notice in writing to the Tenant, the Landlord shall have the right to terminate this Lease; | ||
(c) | upon the giving of that notice the Term shall immediately cease and terminate; | ||
(d) | the Tenant after receipt of that notice shall immediately: |
(i) | make payment of the Rental apportioned to the date of that termination; and | ||
(ii) | deliver up possession of the Leased Premises to the Landlord, and |
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(e) | the terms Building and Leased Premises for the purposes of this section 6.8, shall not be deemed to include the improvements installed in the Leased Premises under the provisions of Schedule A hereof respecting Tenants Work. |
6.9 | Termination |
6.10 | Tenants Obligation to Rebuild |
6.11 | Landlords Election |
7.1 | Tenants Covenants |
(a) | Tenants Use of Parking Areas. The Tenant, its employees, suppliers and other persons having business with the Tenant shall: |
(i) | be prohibited from parking vehicles and loading or unloading of vehicles in any part of the Parking Facility not specifically designated for the Tenants use by the Landlord or the Strata Corporation; and |
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(ii) abide by the Rules and Regulations that may from time to time be established by the Landlord and parking shall be regulated by the Landlord or the Strata Corporation in a reasonable manner. | |||
(b) | Tenant Parking. Notwithstanding section 7.1 (a), the Landlord hereby agrees, provided the Tenant is not in default hereunder, that the Tenant has the option to rent up to and including forty (40) parking stalls within the Parking Facility at a monthly fee of One Hundred Twenty Dollars ($120.00) per stall per month, plus any applicable taxes, such option to be exercised by the Tenant by notice in writing to the Landlord (the Notice) on or before February 1, 2005, and which notice shall set forth the number of stalls that the Tenant wishes to rent. Upon receipt by the Landlord of the Notice, the Landlord shall cause the Strata Corporation to rent to the Tenant for the Term, subject to continuation in force of this Lease, the number of parking stalls set forth in the Notice on terms and conditions acceptable to the Landlord, acting reasonably. The rent of the parking stalls shall be subject to the Rules and Regulations and the bylaws of the Strata Corporation with respect thereto, and the rent shall be adjusted to market rates no more than every twenty-four (24) months. It is agreed that the Tenant shall have the right to cancel any or all of said parking stalls upon not less than three (3) months written notice. | ||
(c) | Tenant Storage. Provided the Tenant is not in default hereunder and has given the Landlord written notice on or before February 1, 2005 of its intention to occupy the Storage Area (as hereinafter defined) during the Term, the Landlord agrees that it shall cause the Strata Corporation to grant to the Tenant an exclusive license during the Term to use and occupy up to 2,000 square feet of the storage area situated on parking levels 1 and 2 of the Parking Facility (the Storage Area) at a rate of Six Dollars ($6.00) per square foot plus any applicable taxes, subject to continuation in force of this Lease, for storage purposes only for the Term. Notwithstanding anything to the contrary contained in this Lease, the Landlord reserves the right, at the Landlords sole expense, at any time and from time to time to relocate, rearrange and alter the Storage Area to another comparable area in the Building. For the purposes of calculating the Tenants portion of the Common Area Maintenance Costs and the Tax Cost, the Gross Leasable Area of the Storage Area shall not be included in the total Gross Leasable Area of the Leased Premises. | ||
(d) | Bicycle Storage. The Tenant shall be provided with access to and use of the existing secured bicycle storage area in common with the other tenants of the Building, provided that the Landlord shall not have any liability for any theft or damage to any bikes in the bicycle storage area unless such theft or damage results from the negligence or wrongful act of the Landlord, or those for whom in law the Landlord is responsible. |
7.2 | Landlords Covenants |
(a) | maintain the Parking Facility as required by law and the terms of this Lease; and | ||
(b) | ensure that the Building is open and accessible during regular business hours. |
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7.3 | Satellite and Communications |
(a) | Subject to the Tenant obtaining at its cost all required regulatory and governmental approvals, the Landlord shall place, on behalf of and at the cost and risk of the Tenant, satellite transmission or receiving or other communication equipment related to the conduct of the Tenants business on the roof of the Building covering an aggregate area of not greater than 150 square feet at any time during the Term of this Lease or any renewals thereof, such equipment to be maintained, operated and insured at the Tenants cost. The Landlord shall not charge rent of any kind or nature for such use by the Tenant, provided further that the Landlord shall in its sole discretion determine the location of such equipment and the Landlord, acting reasonably may relocate such equipment from time to time at the Landlords cost. Any direct increase in Common Area Maintenance Costs for the Building attributable to maintenance and use of this equipment will be paid for entirely by the Tenant as Additional Rent. | ||
(b) | In the event that the Landlord elects to perform repair or maintenance work in a roof area covered or impacted by said communication equipment, the Tenant agrees, upon not less than fourteen (14) days written notice, to temporarily relocate said equipment at its cost. | ||
(c) | The Tenant shall have twenty-four (24) hour access to telecommunications centres within the Building other than those rented to other parties on an exclusive basis, it being understood that during periods when the Building is alarmed the Tenant shall employ, at the Tenants cost, the Landlords alarm response company to access the telecommunication centres. The Landlord will facilitate the Tenant getting additional telecommunications carriers into the Building. The Tenant shall be permitted to route communications cabling and such wiring and ducting as may be required for its emergency generator and communications equipment throughout the Common Areas of the Building between their various spaces or through premises leased by other tenants (to the extent required, the Tenant acting reasonably, and to the extent the Landlord can accommodate, acting reasonably), provided that the Tenant does so with as little disruption to other Building occupants as reasonably possible and is liable for any damage to the Building or any portion thereof as a result of said cabling. |
7.4 | Emergency Generators |
8.1 | Tenants Covenants |
(a) | Not to Assign. The Tenant agrees not to assign this Lease or interest herein, or sublet, license, transfer or part with possession of the Leased Premises, or any part thereof, |
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(b) | Change in Control of Tenant or Use by Affiliate. The Landlord agrees that a reorganization, merger, sale, partnership change or other change in ownership interest of the Tenant shall not be deemed to be an Assignment within the meaning of section 8.1 (a) for which, the Tenant must obtain the prior consent in writing of the Landlord. It is further agreed that the use by, assignment to, or the subleasing to any subsidiary, affiliate, parent company which owns or controls the Tenant or successor of the Tenant shall not be deemed an Assignment under section 8.1 (a), provided the Tenant remains bound by the terms, conditions and covenants of this Lease. |
9.1 | Tenant to Insure |
(a) | all risk property and boiler and machinery (if applicable) insurance in respect of the Tenants stock in trade, furniture and fixtures and such other property in or forming part of the Leased Premises (fixed improvements) to the full replacement cost value. The property insurance is to include business interruption insurance for a twelve (12) month period including Rental. The policy shall waive its rights to subrogation against the Landlord; | ||
(b) | comprehensive general liability insurance including bodily injury, and property damage on an occurrence basis with respect to the business carried on as in or from the Tenants Leased Premises and Tenants use and occupancy thereof. The limit of such insurance shall be for not less than Ten Million Dollars ($10,000,000.00) inclusive limits per occurrence or such higher limits as may be required by the Landlord from time to time. |
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This insurance shall name the Landlord as an additional insured, shall include a cross liability clause and tenants legal liability insurance in the amount of not less than One Million Dollars ($1,000,000.00); | |||
(c) | such other insurance of the Leased Premises and business conducted as would be carried by a prudent operator of Leased Premises similar in use, type and location, | ||
and the following shall apply: | |||
(d) | each policy, save and except as otherwise noted herein, shall name the Landlord as an additional insured as its interests may appear; | ||
(e) | each policy shall provide that the insurer shall not have any right of subrogation against the Landlord on account of any loss or damage covered by that insurance or on account of payments made to discharge claims against or liabilities of the Landlord or Tenant covered by that insurance; | ||
(f) | the cost or premium for each and every policy shall be paid by the Tenant; | ||
(g) | each policy shall provide that the insurer will notify the Landlord in writing at least thirty (30) days prior to any cancellation thereof or any material change therein; and | ||
(h) | the Tenant agrees, at the request of the Landlord, to provide the Landlord with written evidence of the existence of the insurance policies described herein. |
9.2 | Landlord to Insure |
(a) | insurance on the Building (including the foundations and excavations) and the leasehold improvements (including, without limitation, the Heating Plant systems and Common Facilities servicing the Leased Premises) machinery, boilers and equipment in or servicing the Building and owned by the Landlord or the owners of the Building (excluding any property which the Tenant is obliged to insure under section 9.1) against damage by fire and extended perils coverage; | ||
(b) | comprehensive general liability insurance against claims for bodily injury, personal injury and property damage occurring out of the operations of the Landlord in the building in an amount, which the Landlord shall from time to time determine, is reasonable. |
10.1 | Painting and Decorations |
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(a) | no changes, alterations, additions or improvements to the structure, any perimeter wall, the sprinkler system, the heating, ventilating, air-conditioning, plumbing, electrical, or mechanical equipment or the concrete floor or the roof shall be made without the prior written consent of the Landlord, and without the use of contractors or other qualified workers designated or approved by the Landlord in writing; | ||
(b) | changes, alterations, additions and improvements, whether structural or otherwise, shall comply with all applicable statutes, regulations or bylaws of any municipal, provincial, or other governmental authority; | ||
(c) | the Tenant shall pay to the Landlord the amount of the increase for any insurance coverage or Taxes to the extent that that increase is directly attributable to any action by the Tenant under this section; and | ||
(d) | the insurance shall not thereby be made liable to avoidance or cancellation by the insurer by reason of any changes, alterations, additions, or improvements. |
10.2 | Landlords Property |
10.3 | Prohibitions |
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10.4 | No Liens |
11.1 | Public Utilities, Business Tax, and Machinery |
11.2 | Payment of Taxes |
(a) | Subject to the rights which the Landlord has at law to contest Taxes, the Landlord covenants with the Tenant to pay all Taxes and the Tenant covenants with the Landlord to pay its portion of those taxes as provided herein and the Tenant further covenants and agrees to pay any taxes levied on rents collected or revenues received by the Landlord or rents paid by the Tenant that are in addition to or in the nature of income or profit taxes. | ||
(b) | Notwithstanding the foregoing, nothing in this section or in section 4.3(b) shall be interpreted to require the Tenant to prepay estimated Taxes more than thirty (30) days prior to the date(s) on which such tax payments are payable to the taxing authority, provided that the Tenant covenants and agrees that a default in paying the estimated Taxes, upon not less than five (5) days notice from the Landlord, at least thirty (30) days prior to such date(s) provides to the Landlord the same remedies as a default in the payment of Rent. The Landlord shall forward to the Tenant a copy of each statement of the Taxes issued by the City of Vancouver within fourteen (14) days of receipt. | ||
(c) | At the request of the Tenant, the Landlord will contest any Taxes and appeal any assessments with respect to the Property and the Leased Premises, provided all penalties, interest and other costs arising out of such actions are to be paid for by the Tenant (unless the Tenant is successful and in such event such costs are to be included in Common Area Maintenance Costs). |
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11.3 | Penalties |
11.4 | Rental Taxes |
11.5 | Indemnity |
12.1 | Tenants Indemnity |
12.2 | Landlords Indemnity |
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12.3 | Exclusion of Liability |
13.1 | Default |
(a) | the Rental hereby reserved, or any part thereof, shall not be paid on the day appointed for payment thereof and the Tenant fails to remedy such breach within three (3) business days of notice thereof by the Landlord; or | ||
(b) | there is a breach or non-observance or non-performance of any of the covenants, agreements, conditions, provisos, or the Rules and Regulations on the part of the Tenant to be kept, observed or performed and the Tenant fails to remedy such breach within fifteen (15) days of notice thereof by the Landlord (or immediately in the case of an emergency or such shorter period as required by any lawful governmental authority) or, if such breach cannot be remedied within fifteen (15) days, the Tenant fails to commence to remedy such breach within such fifteen (15) day period or thereafter fails to proceed diligently to remedy such breach; or | ||
(c) | if, without the written consent of the Landlord, the Leased Premises shall be used by any person other than the Tenant, the Tenants permitted assigns or permitted sublessees; or for any purpose other than that for which the Leased Premises were let; or | ||
(d) | the Term shall be taken in execution or attachment for any cause whatever, |
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13.2 | Bankruptcy |
(a) | the Term hereof shall be at any time seized in execution or attachment by any creditor of the Tenant; or | ||
(b) | a receiver or receiver manager is appointed in respect of any property of the Tenant; or | ||
(c) | the Tenant shall make any assignment for the benefit of creditors; or | ||
(d) | the Tenant shall become bankrupt or insolvent or take the benefit of any act now or hereafter in force for bankrupt or insolvent debtors; or | ||
(e) | the Tenant is a corporation and any order shall be made for the winding up of the Tenant, or other termination of the corporate existence of the Tenant, |
(i) | this Lease shall, at the sole discretion of the Landlord, cease and determine; | ||
(ii) | the Term shall immediately become forfeited and void; | ||
(iii) | the then current months Rental and the next ensuing three (3) months Minimum Rental shall immediately become due and be paid; | ||
(iv) | the Landlord may immediately claim the monies set out in section 13.2(c) together with any arrears then unpaid and any other monies owing to the Landlord by the Tenant; and | ||
(v) | the Landlord may without notice or any form of legal process immediately re-enter upon and take possession of the Leased Premises and become the owner of and remove the Tenants effects therefrom (save and except for any software which shall remain owned by the Tenant in any event). |
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13.3 | Payment of Landlords Expenses |
13.4 | Landlords Right to Relet |
13.5 | Right of Landlord to Perform Tenants Covenants |
(a) | all costs and expenses incurred by the Landlord in the observance or performance of that covenant or covenants including, but not limiting the generality of the foregoing, legal costs as between solicitor and client and any monies so paid by the Landlord shall, with interest thereon from the date of the incurring of those costs or expenses or payments, of monies at a rate equal to three percent (3%) per annum above the prevailing prime rate then being published by the Landlords bankers, be a charge on the Leased Premises in favour of the Landlord in priority to the interest of the Tenant hereunder and of any person claiming through or under the Tenant; . | ||
(b) | all those costs, expenses and monies and interest thereon shall be payable immediately by the Tenant to the Landlord; | ||
(c) | the Tenant covenants to pay the monies immediately on demand by the Landlord; | ||
(d) | the monies shall be treated as Additional Rental due and payable to the Landlord hereunder; | ||
(e) | the Landlord shall have the same rights and remedies and may take the same steps for recovery thereof as for the recovery of Additional Rental in arrears, |
(i) | the Tenant shall fail to make payment of any monies demanded of the Tenant; | ||
(ii) | the Tenant shall in good faith dispute the amount or propriety of any claim made upon him; and |
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(iii) | forfeiture of or the registration of a lien against the Property shall not result from non-payment, |
13.6 | Interest |
13.7 | Right of Landlord to Seize |
13.8 | Non-waiver |
13.9 | Remedies Cumulative |
14.1 | Sale or Financing of Building |
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14.2 | Subordination |
14.3 | Status Statement |
14.4 | Registration |
14.5 | Assignment by Landlord |
14.6 | Non-disturbance Agreement |
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(a) | The Landlord shall grant to the Tenant the automatic provision to hold over the Leased Premises for six (6) months at the end of the Term (the Termination Date) at a monthly rent of 125% of the monthly Minimum Rental payable during the last month of the Term plus the Tenants portion of Additional Rent payable hereunder, provided the Tenant has notified the Landlord of its intention to waive its options to renew in section 21.1 and notice to so hold over is delivered no later than twelve (12) months prior to expiry of this Lease otherwise this section 15.1 shall be deemed waived. | ||
(b) | The tenancy created thereby shall be a month to month tenancy which will terminate on the Termination Date (and not earlier, except in the event of a default pursuant to section 13.1 of this Lease), and shall not be deemed to be a tacit renewal of this Lease, and otherwise on the terms and conditions herein set out, save and except for any rights pursuant to sections 21.1 and 22.1 hereof granted to the Tenant herein. |
(a) | Construction. That subject to the provisions of sections 2.1 and 2.3, the Landlord shall, at its own expense and cost, carry and complete the Landlords Work prior to the Fixturing Period Commencement Date and the Landlord shall have the right at all times to enter the Leased Premises for purposes of performing the Landlords Work; | ||
(b) | Heating, Ventilating, and Air-conditioning. To maintain and operate the Heating Plant, the heating, ventilating and, air-conditioning system in the Building and all of the Common Facilities; | ||
(c) | Quiet Enjoyment. Subject to section 16.2, that if the Tenant pays the Rental hereby reserved and performs the covenants and agreements herein on its part contained, it shall and may peaceably possess and enjoy the Leased Premises for the Term hereby granted without any interruption or disturbance from the Landlord or any other person or persons lawfully claiming by, from, or under it, and the Landlord will not exercise its vote in the Strata Corporation at any time during the Term to amend the bylaws or rules of the Strata Corporation in any manner that would adversely affect the rights and obligations of the Tenant under this Lease; | ||
(d) | Utilities. To make available to the Leased Premises electricity and power requirements and, in normal quantities, gas, water, and other public utilities generally made available to other tenants of the Building by the Landlord, provided that the Landlord shall have no liability for failure to supply utilities when prevented from doing so by repairs, or causes beyond the Landlords reasonable control; | ||
(e) | Repair and Maintenance. To repair or maintain and to keep in good repair as would a prudent owner the foundations, outer walls, roof, spouts and gutters of the Building and |
32
all of the Common Areas therein, the Common Facilities and the plumbing, sewage and electrical systems therein; provided that the Landlord shall use reasonable efforts in exercising its rights under this clause so as to minimize any interference with the Tenants business and use of the Leased Premises, the Tenant shall not have any right to object to nor any right to any claim of damages or any reduction or abatement of Rental in respect of the exercise of the Landlords rights under this clause; | |||
(f) | Use of Common Areas. To permit the Tenant and its employees and all persons lawfully requiring communication with them to have the use in common with others of the entrance from the parking area and the stairways, corridors and elevators in the Building, subject to such reasonable Rules and Regulations as the Landlord may make in regard thereto from time to time, provided that the Landlord shall in no way be responsible or obligated for failure to enforce any rules and regulations in this regard; and | ||
(g) | Landlord to Act Reasonably. The Landlord shall act reasonably and expeditiously to minimize the extent and duration of any stoppage, interruption or reduction of the services, systems and utilities servicing the Leased Premises. The Landlord shall give the Tenant reasonable advance notice of any planned stoppage, interruption or reduction, shall advise the Tenant prior to scheduling such work to enable the Tenant to schedule its business to minimize disruption, and shall to the extent commercially reasonable consider the Tenants reasonable scheduling suggestions. |
(a) | any breach of or non-compliance with the provisions of this section by the Landlord; or | ||
(b) | the existence of, or the release into the environment of, any Contaminants in the Building or in or about the Property caused by the Landlord or those for whom the Landlord is responsible for at law. |
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(a) | Any notice, demand, request, consent, or objection required or contemplated to be given or made by any provision of this Lease shall be given or made in writing and either delivered personally or sent by facsimile or sent by registered mail, postage prepaid, addressed to the Landlord at: |
730 475 West Georgia Street
Vancouver, B.C.
V6B 4M9
Attention: Suki Sekhon
Fax Number: 604 ###-###-####
520 701 West Georgia Street
Vancouver, B.C.
V7Y 1A1
Attention: President
Fax Number: 604 ###-###-####
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19th Floor 885 West Georgia Street
Vancouver, British Columbia
V6C 3H4
Attention: Patrick Julian
Fax Number: 604 ###-###-####
3030 Orchard Parkway
San Jose, California, USA, 95134
Attention: Susan Wolfe, General Counsel
Fax Number: (408)  ###-###-####
Vancouver, British Columbia
Attention: Bill Rinsma, Director of Real Estate
(b) | The time of giving or making any notice, demand, request, consent, or objection shall be, if delivered, when delivered, if sent by facsimile, on the date sent, and if mailed, then on the fifth business day after the day of the mailing thereof, provided that if mailed should there be between the time of mailing and the actual receipt of the notice, a mail strike, slow-down or other labour dispute which might affect delivery of that notice, then that notice shall only be effective if actually delivered. | ||
(c) | If in this Lease two or more persons are named as Tenant any notice, demand, request, consent, or objection shall be sufficiently given or made if and when the same shall be given to any one of those persons. | ||
(d) | All payments required to be made by this Lease shall be addressed as provided for in this Article 18 unless otherwise directed by the Landlord. |
(a) | No debris, garbage, trash or refuse shall be placed or left, or be permitted to be placed or left in, on, or upon any part of the Building outside of the Leased remises, but shall be deposited by the Tenant in Areas and at times and in a manner specifically designated by the Landlord from time to time. | ||
(b) | Should any of the items herein mentioned be of a perishable nature the same shall be kept in a properly refrigerated area provided at its cost by the Tenant. |
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(a) | At the sole cost and expense of the Tenant, the Leased Premises shall be kept by the Tenant in a clean and sanitary condition in accordance with all municipal, federal and provincial laws, bylaws, rules, regulations and requirements, whether or not in force at the date hereof and in accordance with all directions, rules and regulations of the health officer, fire marshal, building inspector, or other proper officers or agencies (whether municipal, federal, or provincial) having jurisdiction. | ||
(b) | If the Tenant fails to comply with the foregoing provisions of this Article 19 the Landlord may rectify the situation and collect the expense for that work from the Tenant in the same manner as arrears of Additional Rental. |
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(a) | the Minimum Rental, which Minimum Rental shall be the greater of the Minimum Rental during the immediately preceding Lease Year and the then fair market rent for the Leased |
37
Premises, being the rent which would be paid therefor as between persons dealing in good faith and at arms-length; and | |||
(b) | for this right of renewal, but until the Minimum Rental has been determined as provided herein, the Tenant shall pay the monthly Rental requested by the Landlord and upon the determination, the Landlord and the Tenant shall make the appropriate readjustments. |
(a) | one arbitrator is to be appointed by each of the Landlord and the Tenant and a third arbitrator is to be appointed in writing by the first two named arbitrators; | ||
(b) | if the Landlord or the Tenant shall refuse or neglect to appoint an arbitrator within ten (10) days after the other shall have served a written notice upon the party so refusing or neglecting to make that appointment, the arbitrator first appointed shall, at the request of the party appointing him, proceed to determine the rent as if he were a single arbitrator appointed by both the Landlord and Tenant for the purpose; | ||
(c) | if two (2) arbitrators are so appointed within the time prescribed and they do not agree within a period of twenty (20) days from the date of appointment of the second arbitrator upon the appointment of the third arbitrator, then upon the application of either the Landlord or the Tenant, the third arbitrator shall be appointed by a Judge of the Supreme Court of British Columbia; | ||
(d) | the determination made by the arbitrators or the majority of them or by the single arbitrator, as the case may be, shall be final and binding upon the Landlord and the Tenant, and their respective successors and assigns; |
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(e) | each party shall pay the fees and expenses of the arbitrator appointed by it and one-half (1/2) of the fees and expenses of the third arbitrator, unless otherwise directed by the arbitrator; and | ||
(f) | the provisions of this section shall be deemed to be a submission to arbitration within the provisions of the Commercial Arbitration Act and any statutory modification or re-enactment thereof, provided that any limitation on the remuneration of the arbitrators imposed by that legislation shall not be applicable. |
(a) | if the Landlord receives and is prepared to accept a bona fide offer to lease from a third party (the Third Party Offer) in respect of any part of the First Refusal Premises (the Additional Premises), the Landlord will provide the Tenant with a written notice (the Offer Notice) of the Third Party Offer by delivering to the Tenant a copy of the Third Party Offer; | ||
(b) | the Tenant shall have seven (7) business days after its receipt of the Offer Notice to deliver a written notice (the Acceptance Notice) to the Landlord exercising the Tenants Right of First Refusal in respect of the Additional Premises; | ||
(c) | if the Tenant delivers the Acceptance Notice to the Landlord within the applicable time period and such time period occurs prior to or including December 31, 2005, then, the Tenant will, prior to receiving vacant possession of the Additional Premises, execute and deliver to the Landlord an amendment to this Lease incorporating the Additional Premises for the balance of the Term and all exercised renewals thereof, upon the same |
39
terms and conditions contained in this Lease, including Minimum Rental, Additional Rental, fixturing periods, tenant allowances, tenant inducements and free rent; | |||
(d) | if the Tenant delivers the Acceptance Notice to the Landlord within the applicable time period and such time period occurs on or after January 1, 2006 but prior to or including December 31, 2006, then, the Tenant will, prior to receiving vacant possession of the Additional Premises, execute and deliver to the Landlord an amendment to this Lease incorporating the Additional Premises for the balance of the Term and all exercised renewals thereof, upon the same terms and conditions contained in this Lease, except that the fixturing periods, tenant allowances, tenant inducements and free rent will be adjusted on a pro rata basis so that the Landlords effective rate is maintained at the level established on the Commencement Date; | ||
(e) | if the Tenant delivers the Acceptance Notice to the Landlord within the applicable time period and such time period occurs at any time on or after January 1, 2007, then the Tenant will, prior to receiving vacant possession of the Additional Premises, execute and deliver to the Landlord an amendment to this Lease incorporating the Additional Premises for the balance of the Term and all exercised renewals thereof, upon the terms and conditions contained in the Third Party Offer except that the term will be coterminous with the Term and any exercised renewals thereof; | ||
(f) | the Tenants Right of First Refusal shall continue to apply to that portion of the First Refusal Premises not forming part of the Additional Premises leased in accordance with this section; and | ||
(g) | if the Tenant shall not deliver an Acceptance Notice with respect to any Additional Premises, such Additional Premises may thereafter be leased by the Landlord to the person identified in the Third Party Offer and failing leasing pursuant to such Third Party Offer, the provisions of this section shall apply again. |
(a) | this right of first offer can only be exercised by delivery by the Tenant of an offer to the Landlord within five (5) business days of the Landlord providing the Tenant with written notice (the Offer Notice) specifying: |
(i) | the square footage and location of the available space (the Available Space); | ||
(ii) | the date upon which the Landlord expects the Available Space to become available; and | ||
(iii) | the rent and term for which the Landlord intends to take the Available Space to market if the Tenant does not exercise this right of first offer; |
(b) | if the Tenant exercises this right of first offer for the Available Space and a binding agreement to lease is executed by the Landlord and the Tenant, the Tenant will, prior to |
40
taking occupancy of the Available Space, execute and deliver to the Landlord an amendment to this Lease incorporating the agreed upon terms; | |||
(c) | if the Tenant does not exercise this right of first offer for the Available Space within the time limited, the Landlord will be entitled to lease the Available Space to any other person for any use whatsoever and on whatever terms and conditions the Landlord may decide in its sole discretion, provided that the rent, the term and any rent concessions are not substantially more favourable to such third party then those set forth in the Offer Notice; and | ||
(d) | this right of first offer is personal to the Tenant and will become null and void upon the termination, surrender or other determination of this Lease, or the occurrence of any Assignment of this Lease other than an Assignment in accordance with section 8.1(b). |
(i) | not apply to any Third Party Offer to which Jaakko Poyry NLK Inc. or its affiliates are a party; | ||
(ii) | only be applicable if the Tenant is leasing a minimum area within the Building of 40,000 square feet; and | ||
(iii) | only be exercisable if the Tenant has at least five (5) years remaining in the Term of this Lease. |
(a) | the option must be exercised by delivery to the Landlord of the written notice on or before May 31, 2011 along with a cancellation payment, plus GST, equal to the aggregate of the unamortized balance, as of the Surrender Date, of those portions of the Tenant Improvement Allowance, leasing commissions paid by the Landlord (and confirmed in writing by the Landlord and the Tenant), the Demolition Allowance and any free rent with respect to the Surrendered Area, which has been amortized using the mortgage method at an annual interest rate of 8% (the Notice Date); | ||
(b) | the Surrendered Area must be either the whole of the Leased Premises or any one or more floors comprising the Leased Premises to the full extent such floor or floors are leased by the Tenant; |
41
(c) | on the Surrender Date the Tenant will deliver up possession of the Surrendered Area in accordance with the provisions of this Lease; | ||
(d) | if the Tenant shall neglect or fail to make the payment described in section 23.1 (c) as provided for in section 23.1 (a) then, notwithstanding anything herein to the contrary, at the option of the Landlord, the Landlord may either pursue any remedy available to it at law or in equity to otherwise claim and collect such payment or give notice to the Tenant that this Lease shall continue in full force and effect as if such option had not been exercised and the Tenant shall then remain bound by all of the terms and conditions of this Lease, except for this Article 23 which shall automatically terminate and be at an end; | ||
(e) | upon exercising such option: |
(i) | the Tenant shall not be entitled to assign this Lease (with the exception of section 8.1 (b)) or sublet all or any part of the Surrendered Area as provided for in this Lease; and | ||
(ii) | the exclusive signage rights pursuant to section 2.5(b) shall automatically terminate and be at an end. |
(f) | if the Tenant vacates any part of the Surrendered Area prior to the Surrender Date, the Tenant acknowledges and agrees that the Landlord may enter in and take possession of such area prior to the Surrender Date for any purpose the Landlord desires without affecting, modifying or reducing in any way the obligations and covenants of the Tenant pursuant to this Lease; provided that: |
(i) | the Tenant shall have no further obligations or liabilities with respect to that part of the Surrendered Area for which the Landlord has entered and taken possession from the date the Landlord has entered and taken possession, other than to pay Rental under the Surrender Date and the cancellation payment described in section 23.l (c); and | ||
(ii) | In so doing, the Landlord must not disrupt the business operations of the Tenant; |
(g) | such surrender and the acceptance thereof by the Landlord, will be without prejudice to any claims or liabilities of the parties existing prior to the Surrender Date; and | ||
(h) | Rental shall be apportioned as at the Surrender Date. |
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DEMOLITION ALLOWANCE
(a) | the receipt by the Landlord from the Tenant of a statutory declaration executed no less than sixty (60) days after completion of the Demolition Work, stating that there are not claims of builders lien or other liens or encumbrances affecting the Leased Premises with respect to work, services, materials and equipment relating to the Leased Premises, and that the Tenants designers, contractors, subcontractors, works, and suppliers of materials and equipment have been paid in full for all work and services performed and materials and equipment supplied by them on or to the Leased Premises; |
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(b) | receipt by the Landlord of a copy of this Lease duly executed by the Tenant; and | ||
(c) | receipt by the Landlord of a written notice requesting payment of the Demolition Allowance. |
(a) | the failure, for any reason, of the Tenant to pay all Minimum Rental, Additional Rental or other moneys contemplated to be payable by this Lease at the time and in the manner contemplated by this Lease; | ||
(b) | the failure, for any reason, of the Tenant to observe and perform every covenant, agreement, condition and obligation contemplated to be performed by the Tenant under this Lease or arising from any termination of this Lease, rejection, disaffirmation or disclaimer of this Lease in any proceeding or other parting of possession of the Leased Premises by the Tenant, except for a voluntary surrender of the Leased Premises by the Tenant, accepted by the Landlord in accordance with this Lease; and | ||
(c) | any act or action by the Landlord for or in connection with the enforcement of this Lease (collectively, the Indemnity). |
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45
Premises on the terms and conditions of this Lease. The Indemnifier will accept that lease and pay rent and observe and perform the terms and conditions of that lease. The Indemnifier will do all acts and execute and deliver such documents as the Landlord may reasonably require to give effect to the intent of this section 25.9. | ||
25.10 | Governing Law and Attornment | |
This Indemnity will be governed by and construed in accordance with British Columbia law and the applicable Canadian laws, and will be treated in all respects as a British Columbia contract, and the Indemnifier agrees to attorn to the jurisdiction of the British Columbia courts. |
26.1 | Dispute Resolution | |
In the event the Landlord and the Tenant are unable to agree as to any matters set out in this Lease which require agreement (save and except the rent to be determined pursuant to section 21.3), then either party may notify the other, by written notice (in this section, the Notice), of a desire to resolve the dispute by mediation and a meeting will be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If, within fourteen (14) days after such meeting or such further period as is agreeable to the parties (the Negotiation Period), the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to mediation. The parties will jointly appoint a mutually acceptable mediator, seeking assistance from the British Columbia International Commercial Arbitration Centre if they have been unable to agree upon such appointment within twenty (20) days following the conclusion of the Negotiation Period. If the parties are not successful in resolving the dispute through mediation, or if the mediation has not commenced within thirty (30) days following the Negotiation Period, then the parties agree that the dispute will be settled by arbitration pursuant to the Commercial Arbitration Act of British Columbia, as amended from time to time, or any like statute in effect from time to time and the decision of such arbitrator(s) shall be final and binding upon the parties. |
27.1 | Sixth Floor | |
The Landlord covenants and agrees that if it receives a plan for the Tenants proposed use of the sixth floor of the Building on or before February 1, 2005, it will apply to the City of Vancouver to rezone the fitness facility/meeting room amenity space on the sixth floor of the Building comprising approximately 2,206 square feet to allow the Landlord to lease such area to the Tenant. If the Landlord has not received such approval from the City in a form satisfactory to the Tenant on or before the Commencement Date, that part of the Leased Premises comprising the sixth floor shall not be included in the definition of the Leased Premises, but shall form part of the Common Areas and, for the purposes of calculating Gross Leasable Area, shall be divided among all tenants in the Building in accordance with BOMA, and the Tenant shall thereupon be entitled to the use of such amenity space in common with other tenants in the Building. |
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BUSINESS OBJECTS CORP. | ||||||
Per: | /s/ Susan J. Wolfe | |||||
Authorized Signatory | ||||||
Print Name: | Susan J. Wolfe | |||||
Title: | Secretary | |||||
855 HOMER STREET INC. | ||||||
Per: | /s/ Suki Sekhon | |||||
Authorized Signatory | ||||||
Print Name: | Suki Sekhon | |||||
Title: | Director | |||||
BUSINESS OBJECTS AMERICAS | ||||||
Per: | /s/ Susan J. Wolfe | |||||
Authorized Signatory | ||||||
Print Name: | Susan J. Wolfe | |||||
Title: | Secretary | |||||
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1. | Existing fire, life and safety systems will be in good working order | |
2. | Existing Heating Plant and electrical systems will be in good working order | |
3. | Existing T-bar ceiling and lighting will be in good working order |
1. | The Tenant shall be responsible for the installation of any Special Equipment required by the Tenant. | |
2. | All materials and workmanship and all plans and specifications for such Tenants Work shall be subject to the terms and conditions of this Lease and subject to the Landlords prior written approval, and the Tenant agrees to seek the Landlords approval not less than three (3) business days prior to application by the Tenant to the City of Vancouver for any applicable building permits. |
A-1
1. | Prior to securing the necessary permits, the Tenant shall prepare and submit to the Landlord or to the Landlords architect for approval copies of the Tenants drawings and plans and specifications (the Plans) showing details of, including, but not limited to, identification signs, electrical wiring, plumbing, sprinklers and other fire detection devices, heating, ventilating and air-conditioning, reflected ceiling plan, under floor electrical or mechanical, if any, floor plans and complete interior finishing schedules and any other items that the Landlord may require. | |
2. | The Plans shall show all of the above matters in sufficient detail so as to permit the Landlord or the Landlords architects to properly evaluate same. | |
3. | The Tenant shall make all reasonable changes required by the Landlord to the Plans in order to conform to the overall plans and specifications of the Landlord for the Building. | |
4. | Immediately upon receipt of approval by the Tenant from the Landlord of the Plans, or of the Plans as revised by the Tenant pursuant to the Landlords direction aforesaid, the Tenant shall commence its work forthwith. | |
5. | Prior to undertaking such work, the Tenant shall secure all necessary authorizations, permits and licenses from all authorities having jurisdiction, and shall carry appropriate insurance on the Leased Premises in accordance with the terms and conditions of the Lease, and shall submit satisfactory proof to the Landlord of all such permits, authorizations and insurance coverage. | |
6. | All work done by the Tenant shall be completed in a good and workmanlike manner in accordance with the Plans as approved by the Landlord and to the Landlords satisfaction, acting reasonably, and shall utilize new materials and shall conform to all statutes, regulations or bylaws of any municipal, provincial or other authority. All work shall be undertaken by contractors and sub-contractors approved by the Landlord, acting reasonably. The Tenant shall require all such contractors and sub-contractors to carry adequate liability insurance and, in any event, to a minimum of not less than $5,000,000.00 each occurrence. The Tenant shall not impose or permit to be imposed upon the floor areas of the Leased Premises a working load in excess of a live load of 100 pounds per square foot uniformly distributed. | |
7. | The Tenant shall, during the construction of the Tenants work, maintain the Leased Premises in a clean and orderly condition, properly removing unused construction materials, merchandise, equipment and debris and shall maintain the Common Areas of all such construction material and debris. | |
8. | Temporary electrical power, lighting, water, heat or other services required by the Tenant within the Leased Premises during construction will be the Tenants responsibility and at its sole cost and expense. |
B-1
Strata Lot 2
District Lot 541 Strata Plan LMS156
together with an interest in the common property in proportion to the unit entitlement of the Strata Lot as shown on Form 1
C-1
Vancouver, British Columbia
Strata Lots 1 and 2
District Lot 541 Strata Plan LMS156
together with an interest in the common property in proportion to the unit entitlement of the Strata Lots as shown on Form 1.
D-1
1. | The Tenant shall at all times abide by all laws, rules, regulations, ordinances, provisions and requirements relating to the Building or to the Leased Premises of which it has notice and shall keep the Leased Premises, its employees, servants, agents and invitees under its control so as to prevent the performance of any act, or the carrying on of any practice which would damage the Building or its reputation or the Leased Premises or could injure or annoy the other tenants in the Building, their employees, servants, agents, or invitees or the public. | |
2. | The Tenant shall not keep or display any merchandise on, or otherwise obstruct the corridors or other areas adjacent to the Leased Premises. The Tenant agrees to promptly remove any displays or merchandise that the Landlord feels is objectionable. | |
3. | The Tenant shall not overload any floor of the Leased Premises: in excess of one hundred (100) pounds per square foot live load nor shall it hang or suspend from any ceiling or any part of the Building any equipment, displays, fixtures or signs which are not authorized by the Landlord or its architects. | |
4. | The Tenant shall at all times keep the Leased Premises in a clean and sanitary condition, including the inside and outside of all glass, the doors and windows of the Leased Premises, together with all exterior store front surfaces of the Leased Premises, in accordance with the laws and direction, rules and regulations of any governmental, municipal or other agency having jurisdiction. The Tenant shall not place, or permit to be placed, any obstructions or merchandise, on, in or near any corridors, rear entrances, service corridors or loading areas. The Tenant agrees to remove all merchandise from the loading area immediately upon such merchandise being delivered. | |
5. | The Tenant shall notify the Landlord, in writing, of its intention to add or modify lighting, electrical wiring or plumbing in the Leased Premises, and shall obtain the Landlords written approval prior to carrying out said work. In any event, all such work shall be carried out by qualified, licensed tradesmen in accordance with all applicable building codes. | |
6. | The Tenant and Tenants employees and agents shall not solicit business in the parking area or sidewalks surrounding the Building or other common areas, nor shall a Tenant distribute or post any handbills or other advertising material in the parking area or other common areas of the Building. | |
7. | The Tenant shall not use or permit the use of any objectionable advertising medium such as, without limitation, loudspeakers, phonographs, televisions, public address systems, sound amplifiers, radio or broadcasting within the Building which is in any way audible or visible outside of the Leased Premises. No aerial shall be erected on the roof or exterior walls of the Leased Premises, or on the ground, without, in each instance, the written consent of the Landlord, such consent not to be unreasonably withheld or delayed. Any aerial installed without such written consent shall be subject to removal without notice at any time. | |
8. | The plumbing facilities shall not be used for any other purpose than that for which they were constructed, and no foreign substance of any kind shall be thrown therein and the expense of any |
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breakage, stoppage or damage resulting from the violation of this provision shall be borne by the Tenant whose employees, agents or invitees shall have caused it. | ||
9. | For the benefit and welfare of all lessees of the premises of the Building, as it may exist from time to time, the Landlord shall have the right to issue further reasonable rules and regulations and such further rules and regulations shall thereupon be binding upon the Tenant. The Tenant agrees to comply with all rules and regulations which do not materially adversely affect the rights and obligations of the Tenant on notice to the Tenant from the Landlord. |
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