SUBLEASE AGREEMENT
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BETWEEN
ALTTECH VENTURES CORPORATION, a company duly incorporated under the laws of the
Province of British Columbia, and having an address at P.O. 60332, Fraser RPO in
the City of Vancouver, in the Province of British Columbia V5 W 4B5.
(hereinafter called the "Sub-Landlord")
and
DEVON GROUP MANAGEMENT CORPORATION, a company duly incorporated under the laws
of the Province of British Columbia, and having an address at #604-675 West
Hastings Street in the City of Vancouver, in the Province of British Columbia
V6B 1N2
(hereinafter called the "Sub-Tenant")
THAT in consideration of the mutual covenants and agreements hereinafter
respectively reserved and contained, the parties hereto covenant and agree each
with the other as follows:
DEFINITIONS
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For the purpose of this Lease the following words and phrases shall have the
meanings hereinafter ascribed to them:
1.01 "Lease Year" within the meaning of this Lease shall mean a period of
time, the first such period commencing on the first day of the Term hereof and
ending on the last day of December next following. Thereafter Lease Years shall
consist of consecutive periods of 12 calendar months, provided however that the
Landlord may at any time specify an annual date from which each subsequent Lease
Year is to commence, and, in such event, the then current Lease Year shall
terminate on the date preceding the commencement of such new Lease Year. The
last Lease Year shall terminate upon the expiration or earlier determination of
this Lease.
1.02 "Additional Rent" means any and all payments for which the Tenant is
responsible in whole or in part in accordance with the Lease, except the rent
payable pursuant to Article 3, whether or not specifically designated as
Additional Rent elsewhere in this Lease.
1.03 "Building" means all improvements from time to time situate upon the
Lands, presently having a civic address of 1199 West Pender Street, Vancouver,
British Columbia.
1.04 "Capital Tax" means the amount of capital tax payable for or with
respect to the Landlord's Property by the Landlord or the owners of the
Landlord's Property under the Corporations Capital Tax Act of British Columbia
as amended or replaced from time to time including Federal Capital Tax or any
other legislation imposing taxes on account of capital.
1.05 "Event of Default" means the happening of any event described in
Article 7.08(a).
1.06 "Indemnifier" means any and all persons entering into an indemnity
agreement or granting a guarantee with respect to this Lease to the benefit of
the Landlord.
1.07 "Land" means all and singular that certain parcel or parcels of land
described in paragraph I of Schedule "A" hereto.
1.08 "Landlord's Property" means the Lands and the Building.
1.09 "SubLease" means this indenture, including all schedules attached
hereto, as from time to time amended in writing by the parties hereto
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1.10 "Leased Premises" means that portion of the Building and Lands
described in paragraph 2 of Schedule "A" hereto and outlined in red on Schedule
"B" hereto excluding any mechanic equipment areas or stairs not installed for
the exclusive benefit of the Tenant and excluding any elevator shafts, flues,
stacks, pipe shafts and vertical ducts and the interior half of their enclosing
walls. The exterior face of the Building is expressly excluded from the Leased
Premises, but the Leased Premises shall include windows, locks and doors in
perimeter walls. The Leased Premises shall include all installations, fixtures
and furnishings and other improvements in the Leased Premises.
1.11 "Normal Business Hours" means the hours from 6:00 a.m. to 6:00 p.m.
Monday to Friday, inclusive, of each week.
1.12 "Operating Costs" means the total amount paid or payable whether by the
Landlord or others on behalf of the Landlord for the management, operation,
maintenance, care and repair of the Landlord's Property, and without restricting
the generality of the foregoing shall include: fuel and operation expenses
incurred in lighting, heating, ventilating and air conditioning the Building;
the costs of providing electricity or other utilities and services including all
rates and charges for electric current, gas, water, telephone and other public
or private utilities supplied to the Landlord's Property; the costs of hot and
cold water; the costs of window cleaning, telephone and other utilities; the
costs of all labour, salaries, wages, benefits and other payments made to or for
the benefit of janitors, caretakers and other employees of the Landlord or its
agents, and the cost of independent service contracts incurred in the cleaning,
refurnishing, maintenance of security; the cost of all supplies (including all
supplies and necessities which are occasioned by everyday wear and tear);
managerial fees and administrative expenses related to the Building (or
Landlord's reasonable charges in lieu thereof if Landlord manages the Building),
the costs of fire, casualty, extended perils, public liability, elevator, boiler
and machinery, rental and other insurance; the costs of operating, repairing and
maintaining of elevators and of air conditioning, mechanical and electrical
plant and equipment; the costs of all repairs and replacements for the Building
including the capital costs therefor, the costs of painting interior areas not
normally rented to tenants and the costs of painting and otherwise maintaining
the outside of the Building, the cost of snow and ice removal, refuse removal,
landscape maintenance, and all costs in connection with the maintenance of the
common areas and facilities; and, all other expenses including accounting fees
and business taxes paid or payable by the Landlord in connection with the
operation of the Landlord's Property whether or not such expenses are in the
contemplation of the parties at the date hereof, depreciation of improvements
and equipment which substantially reduces other Operating Costs amortized over
their useful life as determined by the Landlord in accordance with sound
accounting principals and Capital Tax. Operating Costs shall not include:
interest on debt; capital retirement of debt; amounts charged to depreciation
except as hereinbefore provided; or, any costs directly chargeable by the
Landlord to the Tenant or any tenant or tenants pursuant to this Lease (other
than Article 5.04 hereof or the corresponding provisions of other leases.
Operating Costs for any Lease Year, if less than one hundred percent (100%) of
the Building is occupied by tenants, shall be increased to an amount estimated
reasonably by the Landlord as would have been, or would be, incurred had such
occupancy been one hundred percent (100%) during such entire period. When
calculating the apportionment of the cost or the amount of an element of the
Operating Costs during a period in which a tenant of the Landlord's Property,
all Operating Costs incurred by the Landlord whether such facilities are
directly or indirectly enjoyed by the tenant shall be payable the Tenant.
1.13 "Property Taxes" shall mean an amount equivalent to all taxes, rates,
duties, levies, fees, charges and assessments whatsoever whether municipal,
regional, provincial, federal, parliamentary, school, Social Services or
otherwise imposed or charged upon the Landlord's Property or charged upon the
Landlord on account thereof, including all taxes, rates, duties, levies and
assessments for local improvements, excluding, however any Tenant's Taxes (which
shall be entirely for the account of the Tenant as otherwise provided in this
Lease) and excluding such taxes as corporate, profit or excess profit taxes
assessed upon the income of the Landlord, and shall include any and all taxes,
charges or other assessments which may in future be levied in lieu of all or any
of the Property Taxes as herein defined.
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1.14 "Proportionate Share" means the fraction which has as its numerator the
Rentable Area of the Leases Premises, and which has as its denominator the total
Rentable Area of the Building, whether rented or not.
1.15 "Rent" means all payments by the Sub-Tenant required or contemplated by
this SubLease, including without limiting the generality of the foregoing,
amounts referred to as rent, rental, Additional Rent or additional rental.
1.16 "Rentable Area", in the case of the Building, shall be calculated as if
the entire building above the level designated the basement were let to tenants
occupying whole floors and in the case of premises occupying a whole floor,
shall include all the area within the outer Building walls, measured from the
inside finish of permanent outer building walls (which shall be considered to be
the inside of the window glass where present) and shall include washrooms,
electrical closets and other closets within and serving that floor; in the case
of premises occupying less than a whole floor, shall include all the area within
the Leased Premises measured from the inside finish of permanent outer building
walls (which shall be considered to be the inside of the window glass where
present) to the office side of corridor walls and to the centre of partitions
separating the premises from adjoining premises, to which shall be added a pro
rata portion of the area of the corridors, washrooms, electrical closets and
other closets within and serving that floor; but in no case shall any Rentable
Area include mechanical equipment areas (unless installed for the exclusive
benefit of a tenant), stairs (unless installed for the exclusive benefit of a
tenant), elevator shafts, flues, stacks, pipe shafts, or vertical ducts, and
their enclosing walls or any pro rata portion-thereof and shall in no case
include any part of the parking or truck receiving areas. The public lobby area
on the main floor shall be included in the calculation of Rentable Area.
1.17 "Tenant Taxes" shall mean an amount equivalent to all taxes, licence
fees, assessments or other charges levied or imposed by any provincial,
municipal, school or any other authority against the Landlord or against the
Landlord's Property or against the Leased Promises, for or on account of the
business conducted by the Tenant or any other person on the Leased Premises, and
all taxes, assessments and other charges levied or imposed against or otherwise
attributable to the Tenant's or any sub-Tenant's improvements, chattels,
fixtures, installations, alterations, equipment and machinery, or being any
special or additional taxes, licence fees, assessments or other charges which
the Tenant or any sub-Tenant or licensee shall elect or cause to have the
Landlord's Property or any part thereof assessed or charged with, whether any
such taxes, licence fees, assessments or other charges are payable in law by the
Tenant or by the Landlord and whether such taxes, licence fees, assessments or.
other charges are included by the taxing authority in the taxes, licence fees,
assessments or other charges imposed or levied on or with respect to the
Building.
GRANT OF SUBLEASE
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2.01 DEMISE
WHEREAS the Sub-Landlord has entered into an Agreement to Lease dated December
1st, 1999 with SHAMSAN DEVELOPMENTS LTD (hereinafter called the "Landlord" )a
company duly incorporated under the laws of the Province of British Columbia and
having an address at #288 - 1199 West Pender St in the City of Vancouver in
British Columbia.
In consideration of the rents, covenants, agreements and conditions hereinafter
respectively Paid, observed and performed on the part of the Sub-Tenant, the
Sub-Landlord does hereby sublease to the Sub-Tenant the Leased Premises,
commonly known as Suite 888 and having Two Thousand Four Hundred Seventy-Six
(2,476) square feet, as described in Schedule "A" and as shown on Schedule
"B"attached hereto
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2.02 TERM
To have and to hold the leased premise for and during the term of two (2) years
and two (2) months (hereinafter sometimes referred to as the "Term"), commencing
the 1st day of December 2000 and ending the 31st day of January 2003
3.01 RENT
Yielding and paying therefor yearly and every year during the Term unto the
Landlord a basic net rent in the sum of TWENTY-FOUR THOUSAND SEVEN HUNDRED SIXTY
DOLLARS ($24,760.00) of lawful money of Canada to be paid in advance in equal
consecutive monthly installments of TWO THOUSAND SIXTY-THREE & 33/100 DOLLARS
($2,063.33) commencing on the 1st day of December, 2000 and on the first day of
each and every month thereafter until and including the 1st day of January,
2003. The rent payment shall be guaranteed by Snowfield Resources Ltd
(hereinafter called the "first guarantor") a company duly incorporated under the
laws of the Province of British Columbia and having an address at #604 -675 West
Hastings St in the City of Vancouver in British Columbia and Discovery.-Corp
Enterprises Inc (hereinafter called the "second guarantor") a company duly
incorporated under the laws of the Province of British Columbia and having an
address at #701 318 Homer St in the City of Vancouver in British Columbia, such
guarantee is applicable only as to 50% of the above rent payable by each
guarantor.
3.02 DEPOSIT
The Sub-Tenant shall pay to the Sub-Landlord on execution of this Lease by the
Sub-Tenant the sum of EIGHT THOUSAND FIVE HUNDRED FORTY ONE & 46/100 DOLLARS
($8,541.46) as a deposit to the Sub-Landlord to be applied in part to the first
month's rent with the remainder to stand as security for the payment by the
Sub-Tenant of any and all present and future debts and liabilities of the
Sub-Tenant to the Sub-Landlord and for the performance by the Sub-Tenant of any
and all its obligations arising under or in connection with this Lease. The
Sub-Landlord shall repay the security deposit to the Sub-Tenant at the end of
the Term or sooner termination of this Lease save only that there shall have
been any Event of Default immediately before the end or sooner termination of
this Lease. The Sub-Landlord may retain the security deposit and apply it in
reduction of any amounts owing by the Sub-Tenant to the Sub-Landlord. It is
understood that no interest shall accrue on the deposit held by the Sub-Landlord
and the Sub-Landlord shall not be obliged to pay any interest to the Sub-Tenant
on the deposit so held.
3.03 PLACE AND MANNER OF PAYMENT OF RENT
All Rent payable by the Sub-Tenant to the Sub-Landlord hereunder shall be:
(a) paid when due hereunder, without prior demand therefor and without any
deduction, abatement or set-off whatsoever, at the office of the Landlord's
building manager or at such other place or to such other agent or agents as the
Landlord may designate from time to time to the Tenant;
(b) applies against amounts then due and payable thereunder, in such manner
as the Sub-Landlord may see fit, regardless of any designation or instructions
by the Sub-Tenant to the contrary;
(c) made by way of a series of cheques, post-dated to the respective due
dates or such payments, which the Sub-Tenant shall supply to the Sub-Landlord at
the commencement of each Lease Year or earlier should the Sub-Landlord so
request, without prejudice to any other right of remedy of the Sub-Landlord.
4.01 NET LEASE
The Sub-Tenant acknowledges and agrees that it is intended that this Lease shall
be a completely carefree net lease for the Sub-Landlord except as expressly
herein set out, and that the Sub-Landlord shall not be responsible during the
Term for any costs, charges, expenses and outlays of any nature whatsoever
arising or relating to the Leased Premises, or the contents thereof, and the
Sub-Tenant shall pay all charges, impositions, costs and expenses of every
nature and kind relating to the Leased Premises and to any dealings by the
Sub-Tenant with this Lease and a. Proportionate Share of all charges,
impositions, costs and expenses of every nature and kind relating to those
parties of the Landlord's Property not intended for leasing and the Sub-Tenant
covenants with the Sub-Landlord accordingly.
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4.02 ADDITIONAL RENT
Without limiting the generality of Article 4.01, the Tenant shall pay as
Additional Rent:
(a) the Sub-Tenant's Taxes in accordance with Article 5.02;
(b) a Proportionate Share of Property Taxes in accordance with Article 5.03;
(c) a Proportionate Share of Operating Costs in accordance with Article
5.04; and
(d) such other sums, amounts, costs and charges as are required to be paid
by the Sub-Tenant pursuant to this Lease.
4.03 ESTIMATE OF ADDITIONAL RENT
The Landlord may, in respect of any or all of the Additional Rent contemplated
by Article 4.02, compute bona tide estimates of the amounts which are
anticipated to accrue in the current or next following Lease Year or portion
thereof, as the Landlord may determine is the most appropriate period for each
item or category of Additional Rent, and may provide the Sub-Tenant with written
notice of the amount of any such estimate, as well as of the Sub-Tenant's
estimated aggregate share thereof. Such estimate may be adjusted by the Landlord
from time to time as the need may arise, and the Sub-Tenant shall then pay
installments of Additional Rent according to such estimates as adjusted.
4.04 PAYMENT OF ADDITIONAL RENT
With respect to any Additional Rent which the Landlord elects to estimate from
time to time pursuant to Article 4.03, following receipt of the written notice
of the estimated aggregate amount of the Sub-Tenant's share thereof, the
Sub-Tenant shall pay to the Sub-Landlord the amount of such estimated aggregate
share, in equal consecutive monthly installments payable in advance together
with the monthly installments of rent as and when due pursuant to Article 3.01
Notwithstanding the foregoing, as soon as bills for all or any portion of the
amounts of Additional Rent so estimated are received, the Sub-Landlord may bill
the Sub-Tenant for the amount of its share thereof determined pursuant to the
applicable provisions of this Lease. The payment of additional rent to the
Sub-Landlord shall be guaranteed by the first guarantor and the second
guarantor.
With respect to any Additional Rent which the Landlord has not elected to
estimate from time to time pursuant to Article 4.03, the Sub-Tenant shall pay to
the Sub-Landlord the amount of such Additional Rent, determined pursuant to the
applicable provisions of this Lease, immediately upon receipt of an invoice
therefor.
4.05 ADJUSTMENT OF ADDITIONAL RENT
Within ninety (90) days after the conclusion of each lease year, the Landlord
shall compute the actual amount of such Additional Rent actual amount of such
Additional Rent, as well as the Sub-Tenant's actual aggregate share thereof
pursuant to the applicable provisions of this Lease, and make available to the
Sub-Tenant for examination a statement showing in reasonable detail the
information relevant and necessary to the exact calculation of such actual
Additional Rent. If the Additional Rent, as set out in any such statement,
exceeds the aggregate amount of the installments paid pursuant to Article 4.04
in respect of such earlier estimated Additional Rent, the Sub-Tenant shall pay
to the Sub-Landlord the amount of the excess within fifteen (15) days of the
receipt of any such statement. If the contrary is the case, the Sub-Landlord
shall either return it to the Sub-Tenant within fifteen (15) days of delivery of
such statement or give credit to the Sub-Tenant for any such overpayment without
interest.
If for any reason beyond the Landlord's control the Landlord is unable to
deliver the statement hereinbefore referred to within the said period of ninety
(90) days, the Landlord shall take all reasonable steps as may be necessary to
deliver such statement as soon thereafter as is reasonably possible and the
failure to provide such statement within the said period shall not entitle the
Sub-Tenant to withhold any sum payable to the Sub-Landlord hereunder, or to
claim damages from the Sub-Landlord or Landlord.
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4.06 REVIEW OF ADDITIONAL RENT
Any payment made by the Landlord or made by the Sub-landlord or Sub-Tenant and
accepted by the Landlord in respect or any adjustment made pursuant to Article
4.05 shall be without prejudice to the right of the Landlord or the Sub-Tenant
to claim a readjustment, provided such claim is made within twelve (12) months
from the date of delivery of the statement referred to in Article 4.05. The
certificate of a chartered accountant appointed by the Landlord who may be the
Landlord's auditor shall in the event of a dispute be conclusive and binding
upon the Sub-Landlord and the Sub-Tenant as to any amount payable from time to
time under this Article 4.
4.07 ALLOCATION TO A PARTICULAR TENANT
If in the Landlord's opinion, the Leased Premises or the use or occupation
thereof or any operation therein (whether alone or together with any other
tenant or its premises or operations therein) gives rise to a disproportionately
high share of any cost or amount which forms part Operating Costs or Property
Taxes, the Landlord may allocate to the Sub-Tenant such portion of such cost or
amount in addition to the Sub-Tenant's Proportionate Share thereof as the
Landlord determines and the Sub-Tenant shall pay to the Sub-Landlord as
Additional Rent the amount so allocated forthwith upon written notice of the
allocation being given to the Sub-Tenant. Any amount so allocated by the
Landlord shall be deducted from the Operating Costs or Property Taxes, as the
case may be, for the period in which it is allocated by the Landlord. The
Landlord may at any time notify the Sub-Tenant of its intention to make such an
allocation to the Sub-Tenant and in such event the Landlord may estimate the
amount thereof and the Sub-Tenant will pay the amount of such estimate to the
Sub-Landlord in monthly installments in advance and the provisions in this
Article 4 will apply mutatis mutandis.
SUB-TENANT'S COVENANTS
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The Sub-Tenant covenants and agrees with the Landlord as follows:
5.01 PAY RENT
To pay during the Term unto the Sub-Landlord the Rent hereby reserved in the
manner herein provided without any deduction, abatement or set-off whatsoever.
5.02 TENANT'S TAXES
(a) To promptly pay the Sub-Tenant's taxes when due. The Sub-Tenant shall be
liable to pay the sub-tenants's Taxes for any period failing wholly or partially
within the Term
(b) If the Sub-Landlord is required by lawful authority to pay the
Sub-Tenant's Taxes or considers it advisable to pay the Sub-Tenant's Taxes which
the Tenant fails or neglects to pay, all moneys so paid by the Sub-Landlord
shall be to the Sub-Tenant's account and the Sub-Tenant shall forthwith pay the
amount thereof to the Sub-Landlord or the taxing authority as the Sub-Landlord
may direct, and all amounts so paid by the Sub-Landlord shall constitute
Additional Rent forthwith payable.
(c) The Tenant further covenants and agrees that upon the written request of
the Sub-Landlord the Sub-Tenant will promptly deliver to the Sub-Landlord for
inspection receipts for payment of all such taxes, fees, assessments or other
charges payable by the Sub-Tenant under this Article 5.02 which were due and
payable prior to such request, and in any event will furnish to the
Sub-Landlord, if requested by the Sub-Landlord, evidence of such payments
satisfactory to the Sub-Landlord before the 21st day of January in each year,
covering payments for the preceding year.
(d) The Sub-Tenant will indemnify and keep indemnified the Sub-Landlord in
respect of all loss, costs, charges and expenses occasioned by or arising from
all such Sub-Tenant's Taxes and any loss, costs, charges and expenses so
suffered by the Sub-Landlord shall constitute Additional Rent forthwith payable.
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5.03 PROPERTY TAX
(a) To pay to the Sub-Landlord as Additional Rent in accordance with
Articles 4.02, 4.03, 4.04 and 4.05 its Proportionate Share of the Property
Taxes.
(b) In the event that this Lease shall commence at any time other than at
the beginning of a calendar year, and in the event that this Lease shall
terminate at any time other than at the end of a calendar year, the Sub-Tenant's
obligation set out herein for payment of its Proportionate Share of Property
Taxes shall be adjusted pro rata on a per them basis between the Sub-Landlord
and the Sub-Tenant, to the intent and purpose that the Sub-Tenant shall bear the
burden thereof referable only to the Term of this Lease or any period of holding
over.
(c) If the Property Taxes shall be increased by reason of any installations,
alterations, improvements or use made in or to the Leased Premises or elsewhere
upon the Landlord's Property by or for the benefit of the Sub-Tenant or any
Sub-Tenant, assignee or licensee of the Sub-Tenant, the Sub-Tenant shall pay the
amount of such increase as Additional Rent, immediately upon demand.
(d) Any expense reasonably incurred by the Landlord in attempting to obtain
a reduction in the amount of the Property Taxes shall be added to and included
in the amount of the Property Taxes. In the event that the Sub-Tenant shall have
paid its Proportionate Share of the Property Taxes pursuant to this Article, and
the Sub-Landlord shall thereafter receive a refund of any portion of the
Property Taxes, the Sub-Landlord shall make an appropriate refund to the
Sub-Tenant.
(e) Should the Sub-Tenant not promptly make its payments as herein
stipulated with the result that the relevant taxing authorities impose a penalty
upon the Landlord for late payment of taxes, the Sub-Tenant shall be responsible
for the entire amount of such penalty and shall pay same to the Sub-Landlord
promptly upon demand. Failure to make such payment shall be a default under the
terms of this Lease.
5.04 OPERATING COSTS
(a) To pay to the Sub-Landlord throughout out the term as additional rent in
accordance with Articles 4.02, 4.03, 4.04 and 4.05, its proportionate share of
operating costs including the Sub-Tenant's proportionate share of charges for
electricity and other utilities; and
(b) In the event this Lease commences, expires or is determined before the
end of the period for which any item or category of Additional Rent would
otherwise be payable, the amount thereof payable by the Sub-Tenant shall be
apportioned and adjusted pro rata on a per them basis.
5.05 ELECTRICITY AND OTHER UTILITIES
(a) The Sub-Tenant's use of electricity in the Leased Premises shall be for
the operation during normal business hours of lighting and normal business
machines, electrical fixtures such as typewriters and other small ofce machines
and lamps, and shall not at any time exceed the capacity of any of the
electrical conductors and equipment in or otherwise serving the Leased Premises.
In order to ensure that such capacity is not exceeded, and to even the possible
adverse effect upon the Building's electrical service, the Sub-Tenant shall not,
without the Sub-Landlord's prior written consent in each instance, connect any
additional fixtures, appliances or equipment (other than normal office
electrical fixtures, lamps, typewriters and similar small office machines) to
the Building's electrical distribution system or make any alteration or addition
to the electric system of the Leased Premises existing at the commencement of
the Term. If the Sub-Landlord grants such consent, the cost of all additional
risers and other equipment required therefor shall be paid as Additional Rent by
the Sub-Tenant to the Sub-Landlord upon demand. As a condition to granting such
consent, the Sub-Landlord may require the Sub-Tenant to agree to an increase in
the Additional Rent for electricity by an amount which will reflect the
increased costs to the Sub-Landlord of the additional services to be furnished
by the Sub-Landlord. The Sub-Tenant on request from time to time shall provide
the Landlord with a list of all electrical appliances and business machines used
in the Leased Premises. In addition, the Sub-Tenant shall pay as Additional Rent
the cost of any extra electrical consumption caused by special equipment or
multiple shift occupancy, which costs shall be based upon B.C. Hydro and Power
Authority's estimate of consumption.
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(b) The Landlord shall have the exclusive right to clean and maintain the
light fixtures and to attend to any replacement of electric tight bulbs, tubes
and ballasts in the Leased Premises throughout the Tern, and may adopt a system
of relamping and reballasting periodically on a group basis in accordance with
good practice in this regard. The Sub-Tenant shall pay to the Sub-Landlord as
Additional Rent the costs of such maintenance and such replacements.
(c) In the event that there is not a separate meter for measuring the
consumption of and charging for electricity or any other utility used or
consumed by the Sub-Tenant in the Leased Premises, the determination of any such
utilities used or consumed by the Sub-Tenant shall, at the option of the
Sub-Landlord, either be by a separate meter installed by the Sub-Landlord or if
the Sub-Landlord so requests by the Sub-Tenant, in each case at the expense of
the Sub-Tenant, or alternatively, be so allocated by the Sub-Landlord acting
reasonably.
5.06 REMOVAL OF FIXTURES
(a) The Sub-Tenant may, so long as no event of default then exists, at or
prior to the expiration of the Term hereby granted, take, remove and carry away
from the premises hereby leased all fixtures, fittings, plant, machinery,
utensils, shelving, counters, safes or other articles in the nature of trade or
tenants' fixtures belonging to or brought upon the Leased premises or shall make
good any damage which may be occasioned by such removal, and shall at the
Landlords option restore or replace any parts which may previously have been
removed or altered by the Sub-Tenants; provided further that the Sub-Tenant
shall not remove or carry away from the leases Premises any building or any
plumbing, heating or ventilating plant or equipment or other building
(b) If the Sub-Tenant fails to remove its fixtures and restore the Leased
Premises as aforesaid, all such fixtures shall become the property of the
sub-Landlord except to the extent that the sub-Landlord continues to require
removal thereof pursuant to subclause (d) of this Article 5.06.
(c) Should the Sub-Tenant abandon the Leased Premises or should this Lease
be terminated before the proper expiration of the Term due to any Event of
Default then, in such event, as of the happening of the Event of Default, all
trade or Sub-Tenants' fixtures and furnishings of the Sub-Tenant (whether or not
attached in any manner to the Leased Premises) shall, except to the extent the
sub-Landlord requires the removal hereof pursuant to subclause (d) of this
Article 5.06, become and be deemed to be the property of the sub-Landlord,
without indemnity to the Sub-Tenant and as additional liquidated damages in
respect of such default and without prejudice to any other right or remedy of
the sub-Landlord.
(d) Notwithstanding that any trade fixtures, furnishings, alterations,
additions, improvements of fixtures are or may become the Property of the
sub-Landlord pursuant to the other provisions of this Article 5.06, the
Sub-Tenant shall forthwith remove the same and shall make good any damage caused
to the Leased Premises resulting from the installation or removal thereof, all
at the Sub-Tenant's expense, should the sub-Landlord so require by notice to the
Sub-Tenant and whether or not the Term of this Lease has expired or otherwise
been terminated.
(e) If the Sub-Tenant, after receipt of a notice from the sub-Landlord
pursuant to subclause (d) of this Article 5.06, fails to promptly remove any
trade fixtures, furnishings, alterations, additions, improvements and fixtures
in accordance with such notice, then the sub-Landlord may enter into the Leased
Premises and remove therefrom all or part of such trade fixtures, furnishings,
alterations, additions, improvements and fixtures without any liability and at
the expense of the Sub-Tenant, which expense shall forthwith be paid by the
Sub-Tenant to the sub-Landlord.
5.07 INSURANCE
(a) The Sub-Tenant shall during the Term, at its sole cost and expense, take
out and keep in full force and effect and in the names of the Sub-Tenant, the
Landlord and the mortgagees of the Landlord as their respective interests may
appear, the following insurance:
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(i) fire insurance with extended coverage endorsement covering
leasehold improvements made or installed by or on behalf of the Sub-Tenant in an
amount equal to the full replacement value thereof,
(ii) public liability and property damage insurance with respect to the
Leased Premises and the Sub-Tenant's use of any part of the Building and which
coverage shall include the activities and operations conducted by the SubTenant
and any other person on the Leased Premises; such policies shall be written on a
comprehensive basis with limits of not less than $3,000,000 for bodily injury to
any one or more persons, or property damage, and such higher limits as the
Landlord or the mortgagees of the Landlord may reasonably require from time to
time, and all such policies shall contain a Severability of Interest Clause and
a Cross Liability Clause; and
(iii) such other insurance that the landlord (or it's morgagee) may,
act reasonably, require from time to time
(b) All insurance shall be effected with insurers and brokers and upon terms
and conditions satisfactory to the landlords, and copies of all policies if
requested by the landlord or certificate of insurance shall be delivered to the
Landlord as soon as practicable after the placing of the required insurance.
(c) All such policies of insurance shall contain a waiver of subrogation
clause in favour of the Landlord and shall also contain a clause requiring the
insurer not to cancel or change the insurance without first giving the Landlord
thirty (30) days prior written notice thereof.
(d) The Sub-Tenant agrees that if it does not provide or maintain in force
such insurance, the Landlord may take out the necessary insurance and pay the
premium therefor for periods of one (1) year at a time, and the Sub-Tenant shall
pay to the sub-Landlord as Additional Rent the amount of such premium
immediately on demand.
(e) In the event that both the Landlord and the Sub-Tenant have claims to be
indemnified under any such insurance the indemnity shall be applied first to the
settlement of the claim of the Landlord and the balance, if any, to the
settlement of the claim of the Sub-Tenant.
5.08 ACTS CONFLICTING WITH INSURANCE
The Sub-Tenant shall not do or permit to be done anything or any act which may
render void or voidable or conflict with the requirements of any policy or
policies of insurance or reduce the coverage thereunder, including any
regulations of fire insurance underwriters applicable to such policy or policies
whereby the Leased Premises or the Landlord's Property are insured or which may
cause any increase in premium to be paid in respect of any such policy or
policies. In the event that any such policy or policies is or are cancelled by
reason of any act or omission of the Sub-Tenant, the sub-Landlord shall have the
right at its option to terminate this Lease forthwith by giving notice of
termination to the Sub-Tenant, and in the event that the premium to be paid in
respect of any such policy or policies is increased by any act or omission of
the SubTenant, the Sub-Tenant shall pay to the sub-Landlord the amount by which
said premium shall be so increased forthwith on demand.
5.09 REPAIR
(a) The Sub-Tenant covenants throughout the Term of this Lease at the
Sub-Tenant's sole cost and expense, to repair the Leased Premises, and to keep
the Leased Premises in good repair as a careful owner would do, including
interior painting if, in the opinion of the sub-Landlord, such painting is
required, with the exception of. reasonable wear and tear to the extent only
that such reasonable wear and tear is not inconsistent with the Leased Premises
being kept and maintained in good order and condition generally; damage by fire,
lightning, tempest and other casualty with respect to which the Landlord has
received proceeds of insurance; and structural repairs to the Building.
(b) If the Leased Premises or any equipment, appurtenances and improvements
within the Leased Promises, or if the Building, the elevators, boilers,
engines, heating apparatus, or other pipes, drainage pipes or other equipment or
apparatus or part of the Building not located within the Leased Premises, shall
be damaged, destroyed, rendered inoperable, or require replacement through
negligence, carelessness or misuse by the Sub-Tenant, its servants, agents,
employees or any one permitted by it to be in the Building or the Leased
Premises, the expense of the necessary repairs, replacements or alterations
shall be bome by the Sub-Tenant, who shall pay them to the sub-Landlord
forthwith on demand.
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(c) The Sub-Tenant shall permit the sub-Landlord and its agents to enter and
view the state of repair and condition of the leased premises and improvements
therein; and repair according to any notice given by the sub-landlord to the
Sub-Tenant in writing, to the extent that the Sub-Tenant is responsible for the
repairs pursuant to the provisions of this article 5.09. All repairs made by the
Sub-Tenant shall be done in a good and workmanlike manner.
(d) In this lease "repairs" shall include replacements and renewals when
necessary and painting and maintenance of all areas and shall comply with al
Municipal, Provincial and federal regulations.
5.10 USE OF LEASED PREMISES
(a) The Sub-Tenant covenants not to use or permit the Leased Premises or any
part thereof to be used for any purposes other than the purposes for which the
Leased Premises are hereby leased, namely as a business office of the
Sub-Tenant.
(b) The Sub-Tenant covenants not to do or suffer any waste or damage,
disfiguration, or injury to the Leased Premises of the fixtures and equipment
thereof or permit or suffer any overloading of the floors thereof, and not to
place therein any safe, heavy business machine, or other heavy thing, without
first obtaining the consent in writing of the Landlord.
5.11 ALTERATIONS AND INSTALLATIONS
(a) The Sub-Tenant shall not without the prior written consent of the
sub-Landlord, which consent shall not be unreasonably withheld, make any
alterations, repairs or improvements to the Leased Premises or the Building
systems serving the Leased Premises. The Sub-Tenant shall submit to the
sub-Landlord detailed plans and specifications of any such work or installation
when applying for consent, and the sub-Landlord reserves the right to recover
from the Sub-Tenant the reasonable cost of having its architects, agents or
engineers examine such plans and specifications. The sub-Landlord may require
that any or all work to be done or materials to be supplied with respect to
alterations, repairs of improvements to the Leased Premises shall be done or
supplied by workmen or by contractors first approved by the sub-Landlord, such
approval not to be unreasonably withheld. All work to be done or materials to be
supplied hereunder shall be at the sole cost and expense of the Sub-Tenant and
shall be done and supplied and paid for in the manner and according to such
terms and conditions if any, as the sub-Landlord may prescribe. Any connections
of apparatus to the electrical system other than a connection to an existing
base receptacle or any connection of apparatus to the plumbing lines shall be
deemed to be an alteration within the meaning of this Article 5. 11 (a).
(b) Any additions to or alterations of the Leased Premises shall become part
of the Landlord's Property.
(c) The Sub-Tenant shall install or put up in the Leased Premises only such
window drapes, blinds, awnings. floor coverings, wall coverings, notices or
other similar things as are first approved in writing by the sub-Landlord.
5.12 SIGNS AND ADVERTISING
The Sub-Tenant shall not paint, display, inscribe, place or affix any sign,
picture, advertisement, notice, lettering or direction on any part of the
outside of the Building or in the interior of the Leased Premises and visible
from the outside of the Building. The Landlord may prescribe a uniform pattern
of identification of signs for Sub-Tenants to be placed on the outside of the
doors or other entranceway leading into the Leased Premises, and other than such
identification signs, the Sub-Tenant shall not paint, display, inscribe, place
or affix any sign, picture, advertisement, notice, lettering or direction on the
outside of the Leased Premises for exterior view without the prior written
consent of the Landlord, such consent not to be unreasonably withheld, taking
into account the character and construction of the Building and the Leased
Premises, the nature of the sub-Tenants business, and the requirements of all
relevant authorities. The Sub-Tenant shall remove the same at the expiration of
the Term hereof, and make good all damage caused by such removal.
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5.13 NO NUISANCE
The Sub-Tenant shall not at any time during the term, use or exercise or carry
on or permit or suffer to be used, or to be exercised or carried on, in or upon
the leased premises or any part thereof any noxious or offensive art, trade,
occupation or calling, and no act, matter or thing whatsoever shall at any time
during the said Term be done in or upon the Leased Premises or any part thereof
which shall or may be used or grow to the annoyance, nuisance, damage or
disturbance of the occupiers or owners of the Building or adjoining land and
property.
5.14 COMPLIANCE WITH LAWS
The Sub-Tenant covenants that it shall promptly, at its expense, comply with and
observe the requirements of all statutes, bylaws, laws, ordinances, regulations
and orders at any time in force during the Term hereof which are applicable to
the Tenant or the condition, partitioning, equipment, repair, maintenance, use
or occupation of the Leased Premises, including Without limitation, all police,
fire, and sanitary regulations and any regulation, order or requirement of any
fire underwriters association or any similar body having similar functions and
of any liability of fire insurance company by which the Landlord and sub-Tenant
or either of them may be insured at any time during the Term hereof, whether or
not such statute, bylaw, law, regulations, ordinance or order be of a kind now
existing or within the contemplation of the Landlord or the sub-Tenant. In so
doing, the sub-Tenant shall at its expense make any necessary alterations,
repairs, additions or deletions in, on or to the Leases Premises or the
Landlord's Property or any parts thereof and any equipment, machinery or other
facilities in, on, upon, or used in connection With or appurtenant to the Leased
Premises or any part thereof. Notwithstanding the foregoing, it shall be the
Landlord's responsibility to comply with and observe all such statutes, bylaws,
laws, ordinances, regulations and orders which relating to the Building, except
sub-tenants' improvements in so far as tile\! may require changes of a
structural nature in the Building, except Sub-Tenants' improvements, except that
such changes shall be made at the expense of the Sub-Tenant if they are changes
or additions required to be made in or to the Sub-Tenant's improvements or
partitioning (whether above or below the ceiling tiles) whether such changes be
considered structural or not, or if such changes are required by reason of the
nature of the use or improvements contemplated or made by the Sub-Tenant.
5.15 INDEMNIFICATION
The Sub-Tenant covenants with the Sub-Landlord to indemnify and save harmless
the Sub-Landlord from any and all payments and liabilities required to be made
in respect of the Leased Premises, but not including income taxes, succession
duties, inheritance taxes and similar charges personal to the sub-Landlord, and
without limiting the generality of the foregoing, shall indemnify and save
harmless the sub-Landlord from any and all liabilities, damages, costs, suits,
actions and expenses arising out of
(a) Any breach, violation or non-performance of any covenant, condition or
agreement in this Lease set forth and contained on the part of the Sub-Tenant
to be fulfilled, kept, observed and performed.
(b) Any damage to property of the Sub-Tenant, any Sub-Tenant, licences, and
all persons claiming though or under him, them, or any of them, or damage to
any other property howsoever occasioned by the use and occupation of the Leased
Premises.
(c) Any injury to any person or persons, including death resulting at any
time therefrom, occurring in or about the Leased Premises and/or sidewalks,
platforms, corridors, stairways, elevators, escalators, parking, loading or
other areas adjacent to the same.
Such indemnification in respect of any such breach, violation and
non-performance, damage to property, injury or death, occurring during the Term
of the Lease shall survive and termination of this Lease, anything in this Lease
to the contrary note withstanding.
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5.16 ENTRY BY LANDLORD
The Sub-Tenant shall permit the landlord, it's servants or agents to enter upon
the leased premises at any time and from time to time for the purpose of
inspecting and of making repairs, alterations of improvements to the leased
premises or to the building or systems thereof, or for the purpose of having
access to the underfloor ducts, or to the access panels to mechanical shafts
(which the Sub-Tenant agrees not to obstruct), or in order to check, calibrate,
adjust and balance controls and other parts of the heating, ventilating and
climate control system. Provided that the Landlord shall proceed under this
Article 5.16 in such manner as to minimize interference with the Sub-Tenant's
use and enjoyment of the Leased Premises, and the Sub-Tenant shall not be
entitled to compensation for any inconvenience, nuisance or discomfort
occasioned thereby. Furthermore, the Landlord, its servants or agents may at any
time and from time to time enter upon the Leased Premises to remove any article
or remedy any condition which in the opinion of the Landlord, reasonably arrived
at, would be likely to lead to cancellation of any policy of insurance. Entry by
the Landlord upon the Leased Premises or any part or parts thereof from time to
time pursuant to this Article 5.16 shall not be or be deemed to be a re-entry.
5.17 ASSIGNING, SUBLETTING, PARTING WITH POSSESSION
(a) The Sub-Tenant covenants not to assign this Lease or sublet the Leased
Premises or any part thereof or permit the Leased Premises or any part thereof
to be occupied by any person other than the Sub-Tenant without the prior consent
in writing of the sub-Landlord, which consent shall not be unreasonably withheld
or delayed in each instance. At the time the Sub-Tenant requests the consent of
the sub-Landlord, the Sub-Tenant shall deliver to the sub-Landlord a copy of any
offer or agreement to assign or sublet or the sublease or assignment, the name,
address, nature of business and the most recent financial statements (audited,
if available) of the proposed assignee, Tenant or occupant and forthwith upon
request such additional information, if any, as the sub-Landlord may reasonably
require (all of which is herein referred to as "required information"). Upon the
receipt of such request and all the required information the sub-Landlord may
within fourteen (14) days after such receipt, cancel and terminate this Lease if
the request is to assign this Lease or to sublet all of the Leased Premises or,
if the request is to sublet a portion of the Leased Premises only, cancel and
terminate this Lease with respect to such portion, in each case as of the date
set forth in the sub-Landlord's notice of exercise of such right, which shall be
neither less than sixty (60) nor more than ninety (90) days following the
service of such notice. If the sub-Landlord should exercise such right of
termination, then, except as hereinafter provided, the Sub-Tenant shall
surrender the whole or the part, as the case may be, of the Leased Premises in
accordance with such notice and the rent and other payments required to be made
by the Sub-Tenant hereunder shall be adjusted as at the date of termination.
(b) The sub-Landlord's consent to any assignment may be conditional upon the
assignee entering into an agreement in a form satisfactory to the Landlord to
perform, observe and keep each and every covenant, condition and agreement in
this Lease on the part of the Sub-Tenant to be performed, observed and kept,
including payment of rent and all other sums and payments agreed to be paid or
payable under this Lease on the days and at the times and in the manner
specified.
(c) In no event shall any assignment or subletting or occupancy to which the
sub-Landlord may have consented alter, release or relieve the Sub-Tenant from
its obligations fully to perform all the Sub-Tenant's covenants, conditions and
agreements of this Lease. The Sub-Tenant shall pay on demand the Landlord's
reasonable costs incurred in connection with the Sub-Tenant's request for such
consent.
(d) If the Sub-Tenant is a private corporation and any or all of its issued
shares shall be transferred by sale, assignment, bequest, inheritance,
operation of law or other disposition or dispositions so as to result in a
change in the control of the corporation, such change of control shall be
considered an assignment of this lease and shall be subject to the aforesaid
provisions: the Sub-Tenant shall make available to the landlord upon it's
request for inspection and copying, all books and records of the Sub-Tenant, any
assignee or Sub-Tenant and their respective shareholders which alone or with
other data, may show the applicability or inapplicability of this section.
(e) The Sub-Tenant shall not advertise or allow the Leased Premises or a
portion thereof to be advertised as being available for assignment, sublease or
otherwise without the prior written approval of the Landlord to the form and
content of such advertisement, which approval shall not be unreasonably
withheld, provided that no such advertising shall contain any references to the
rental or the rental rate of the Leased Premises.
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(f) The Sub-Tenant shall be liable for the sub-Landlord's costs incurred in
connection with the Sub-Tenant's request for consent, including but without
limiting the generality of the foregoing, the sub-Landlord's legal expenses.
5.18 TIDY CONDITION
The Leased Premises and every part thereof shall be kept in a clean and tidy
condition, and no waste paper, garbage, ashes or waste or objectionable material
shall be permitted to accumulate thereon. The Sub-Tenant shall place in
containers of a type approved by the Landlord all garbage and refuse, and such
containers shall be deposited for pickup at such times and places as are
designated in writing from time to time by the Landlord.
5.19 RULES AND REGULATIONS
The Sub-Tenant and its employees and all persons visiting or doing business with
it on the Leased Premises shall be bound and shall observe the Rules and
Regulations attached to this Lease as Schedule "C" and any other reasonable or
amended Rules and Regulations made hereafter by the Landlord of which notice in
writing shall be given to the Sub-Tenant, and all such Rules and Regulations
shall be deemed to be incorporated into and form part of this Lease. Provided
that nothing in this Lease contained shall be construed to impose upon the
Landlord any duty or ,obligation to enforce the Rules and Regulations or the
terms, covenants, or conditions in any other lease against any other Sub-Tenant
of premises in the Building, and the Landlord shall not be liable to the
Sub-Tenant for violation of the same by any other Sub-Tenant, its servants,
employees, agents, visitors or licensees. The Landlord also has the right to
suspend or cancel any or all such Rules and Regulations.
5.20 NOTICE OF ACCIDENTS
The Sub-Tenant shall notify the Landlord promptly and in writing of any accident
or damage of which it becomes aware, or any defect in the Leased Premises or the
Building or any part thereof including the heating, ventilating and air
conditioning apparatus, water and gas pipes, telephone lines, electrical
apparatus or other building services.
5.21 FIRE AND SAFETY
The Sub-Tenant acknowledges that it may be or become desirable or necessary for
the Landlord to organize and coordinate arrangements within the Building for the
safety of all Sub-Tenants and occupants in the event of fire or similar event,
and the Sub-Tenant, its employees, servants, agents and invitees shall cooperate
and participate in any fire drills, evacuation drills and similar exercises as
may be arranged or organized by the Landlord from time to time, and will hold
the Landlord harmless from any loss, damage or injury arising therefrom.
5.22 ENERGY CONSERVATION
The Sub-Tenant shall cooperate with the landlord in conserving energy of all
types in the building including complying at the Sub-Tenants own cost with all
reasonable requests and demands of the Landlord made with a view to energy
conservation: any reasonable capital expenditures made by the Landlord in an
effort to promote energy conservation shall be added to Operating Costs in the
Lease Year such expenditures are incurred.
5.23 CERTIFICATE
The Sub-Tenant agrees that it will at any time and from time to time, upon not
less than five (5) days prior notice, execute and deliver to the Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or, if modified, stating the modifications and that the same is in
full force and effect as modified), the amount of the annual rent and Additional
Rent then being paid hereunder, the dates to which the same, by installments or
otherwise, have been paid, and whether or not there is any existing default on
the part of the Landlord of which the Sub-Tenant has notice and giving such
other information as the Landlord may require, it being understood and agreed
that any such statement delivered pursuant to this paragraph shall be addressed
to (and may be relied upon by) any prospective purchaser or mortgagee of the
Landlord's interest or by such other person as the Landlord may direct.
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5.24 SURRENDER OF POSSESSION
The Sub-Tenant will, at the expiration or sooner determination of the Term,
peaceably surrender and yield up unto the Sub-Landlord the Leased Premises with
the appurtenances, together with all alterations, additions, fixtures or
erections which at any time during the said Term shall be made therein or
thereon in good repair and condition in accordance with the Sub-Tenant's
obligations to repair.
SUB-LANDLORD'S COVENANTS
------------------------
The Sub-Landlord covenants with the Sub-Tenant as follows:
6.01 QUIET ENJOYMENT
The Landlord covenants and agrees with the Sub-Tenant that upon the Sub-Tenant
paying the Rent hereby reserved within the periods limited herein for the
payment thereof, and upon the Sub-Tenant observing and performing the covenants
and agreements herein contained within the periods limited for the observance
and performance thereof, the Sub-Tenant shall and may peaceably possess and
enjoy the Leased Premises for the Term hereby granted without any interruption
or disturbance from the sub-Landlord or any person or persons claiming by,
through or under the Landlord. Provided and it is hereby agreed that in no event
will the conduct of repairs, alterations, additions or renovations by the
Landlord to the exterior or interior of the Leased Premises or the Building (nor
construction within or upon the Building or the Leased Premises) constitute a
breach of this covenant for quiet enjoyment.
6.02 REPAIR AND MAINTENANCE
Subject to other provisions hereof, the Landlord shall repair, replace and
maintain the external and structural parts of the Building which do not comprise
a part of the Leased Premises and are not leased to others, and equipment
closets and shafts within the Leased Premises designated by the Landlord for use
by it in connection with the operation and maintenance of the Building, and
shall perform such repairs, replacements and maintenance in a good and
workmanlike manner.
6.03 HEATING AND AIR CONDITIONING
The landlord shall provide heating and air conditioning of the leased premises
to an extent sufficient to maintain reasonable temperature therein during
business hours and under normal office use, except during the making of repairs,
alterations or improvements and except when prevented from so doing by strikes,
the making of repairs, inspections, alterations, improvements and maintenance or
any causes beyond the Landlord's reasonable control. The Sub-Tenant acknowledges
that the foregoing obligation is limited to heating and air conditioning on the
basis of one person to every one hundred (100) square feet of space on an open
floor basis, the window shading being drawn on exterior windows during the time
that such windows are exposed to the sun, all windows being kept closed, and the
average consumption of electricity on the Leased Premises not exceeding four (4)
watts per square foot, and is without regard to the Sub-Tenant's specific use
thereof or the installation of any computers or data processing equipment.
Any and all costs of adapting the air conditioning and heating systems required
as a result of any alteration, change, or improvement made to the Leased
Premises by the Sub-Tenant or by the Landlord on behalf of the Sub-Tenant shall
be tile responsibility of the Sub-Tenant and not the Landlord.
6.04 JANITOR SERVICES
The Landlord shall cause, when reasonably necessary, the floors of the Leased
Premises and the common areas, if any, on the floor on which the Leased Premises
are situate to be swept and cleaned, the windows washed and the desks, tables
and other furniture dusted. The Landlord shall not be responsible for any act of
omission or commission on the part of any person or persons employed to perform
such work; such work shall be done at the Landlord's direction without any
interference by the Sub-Tenant, its servants or employees.
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6.05 ELEVATORS
The Landlord shall furnish, except during the making of repairs, maintenance,
alterations, improvements or inspections and except when prevented from so doing
by strikes or any cause beyond the Landlord's reasonable control, passenger
elevator service during normal business hours to the Sub-Tenant and its
employees and those doing business with the Sub-Tenant, in common with others,
provided that the Sub-Tenant and such employees and all other persons using the
same shall do so at their sole risk, and under no circumstances shall the
Landlord be liable for any claim or responsible for any damage or injury
happening to any person while using the elevator, or occasioned to the
Sub-Tenant or any other persons by any elevator or any of its appurtenances.
6.06 WASHROOMS
The Landlord shall permit the Sub-Tenant and its employees, in common with
others entitled thereto, to use the washrooms in the Building on the floor or
floors in which the Leased Premises are situate.
6.07 ACCESS
The Sub-Tenant and its employees and all persons lawfully requiring
communication with them, shall have the use during normal business hours in
common with others of the main entrance and stairways, corridors and elevators
leading to the Leased Premises. At times other than during normal business
hours, the Sub-Tenant and the employees of the Sub-Tenant and persons lawfully
requiring communication with the Sub-Tenant shall have access to the Building
and to the Leased Premises and use of the elevators only in accordance with the
Rules and Regulations attached hereto as Schedule "C" or any other Rules and
Regulations promulgated by the Landlord from time to time.
6.08 LIGHT FIXTURES
The Landlord shall clean and maintain the light fixtures provided by the
Landlord in the Leased premises, it being agreed by the Sub-Tenant that such
cleaning and maintenance shall be performed exclusively by the landlord or its
contractors at the sole expense of the Sub-Tenant
6.09 LANDLORD'S INSURANCE
The Landlord shall take out and keep in force during the term insurance with
respect to the Landlord's Property except for the leasehold improvements
therein. The insurance to be maintained by the Landlord shall be in respect of
perils and to amounts and on terms and conditions which from time to time are
insurable at a reasonable premium and which are normally insured by reasonably
prudent owners of properties similar to the Landlord's Property, all as from
time to time determined at reasonable intervals by insurance advisors selected
by the Landlord, and whose opinion shall be conclusive. Unless and until the
insurance advisors shall state that any such perils are not customarily insured
against by owners of properties similar to the Landlord's Property, the perils
to be insured against by the Landlord shall include, without limitation, public
liability, boiler and machinery, fire and extended perils and may include at the
option of the Landlord losses suffered by the Landlord in its capacity as
Landlord through business interruption. The insurance to be maintained by the
Landlord shall contain a waiver by the insurer of any rights of subrogation or
indemnity or any other claim over to which the insurer might otherwise be
entitled against the Sub-Tenant or the agents or employees of the Sub-Tenant, if
such is obtainable at reasonable costs.
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MISCELLANEOUS COVENANTS
-----------------------
It is further hereby agreed as follows:
7.01 DISTRESS
The sub-Landlord shall have the right to levy distress upon the goods and
chattels upon the Leased Premises for Rent in arrears, and shall have the right,
in case of removal by the Sub-Tenant of the goods and chattels of the Sub-Tenant
from the Leased Premises, to follow and seize the same at any place to which the
Sub-Tenant or any other person may have removed them, it being expressly
understood and agreed by the Sub-Tenant that notwithstanding any statute, bylaw,
regulation or order of any authority or government having jurisdiction, none of
the goods or chattels of the Sub-Tenant at any- time during the continuance of
the Term shall be exempt from levy by distress for Rent in arrears, and that
upon any claim being made for such exemption by the Sub-Tenant or on distress
being made by the Landlord this covenant and agreement may be pleaded as an
estoppel against the Sub-Tenant in any action brought to test the right to the
levying upon any such goods, the Sub-Tenant waiving hereby all and every benefit
of any present or future statute, bylaw, regulation or order of any government
authority taking away or limiting the Landlord's right of distress.
7.02 LIENS
The Sub-Tenant shall not suffer or permit any lien under the Builders Lien Act
or any like statute to be filed or registered against the Landlord's Property by
reason of work, labour, services and materials supplied or claimed to have been
supplied to the Sub-Tenant. If any such lien shall at any time be filed or
registered, the Sub-Tenant shall procure registration of a discharge within ten
(10) days after the lien has come to the notice or knowledge of the Sub-Tenant.
The Sub-Tenant shall defend on behalf of the Landlord at the Sub-Tenant's sole
cost and expense, any action, suit or proceeding which may be brought therein or
for the enforcement of such lien, liens or orders, and the Sub-Tenant shall pay
any damages and satisfy and discharge any judgments entered thereon and save
harmless the sub-Landlord from any claim or damage resulting therefrom it is
further agreed that the Landlord may, but shall not be obliged to, discharge any
such lien if the Sub-Tenant shall fail to do so and if in the Landlord's
judgment the Landlord's Property becomes liable to any forfeiture or sale or is
otherwise in jeopardy, or if the Landlord is or is likely to be adversely
affected thereby and any amount paid by the landlord in so doing, together with
all reasonable costs and expenses of the Landlord in connection therewith, shall
be reimbursed to the sub-landlord by the sub-tenant on demand and may be
recovered in rent arrears. Nothing herein contained shall authorize the
sub-tenant, or imply any consent or agreement on the part of the landlord , to
subject the Landlord's property or any estate and interest therein to any liens.
7.03 DAMAGE OR DESTRUCTION OF LEASED PREMISES
(a) If the Leased Premises are damaged or destroyed the Rent shall abate in
the proportion that the part of the Leased Premises rendered unfit for occupancy
bears to the whole of the Leased Premises until the Leased Premises are rebuilt;
provided that if the Leased Premises are so damaged or destroyed that in the
reasonable opinion of the Landlord the Leased Premises cannot be rebuilt or made
fit for the purposes of the Sub-Tenant within one hundred and twenty (120) days
after the damage or destruction, the Landlord may at its option terminate this
Lease by giving the Sub-Tenant within thirty (30) days of the damage or
destruction notice of termination and the Sub-Tenant shall on the date specified
in that notice, which shall be within sixty (60) days after delivery of the
notice of termination, deliver uppossession of the Leased Premises to the
Landlord.
(b) In the event of damage or destruction to the Leased Premises, the cost
of which is wholly recoverable by the Landlord under a policy or policies of
insurance, the Landlord shall with reasonable diligence repair the Leased
Premises unless the Sub-Tenant is obligated to repair under the terms hereof or
unless this Lease is terminated under Articles 7.03(a) or 7.03(c) hereof. The
Sub-Tenant shall, subject to provisions respecting termination of this Lease,
with reasonable diligence repair or replace leasehold improvements damaged or
destroyed in the Leased Premises.
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(c) In the event that twenty-five percent (25%) or more of the Rentable Area
in the Building is damaged or destroyed and if in the reasonable opinion of the
Landlord the Rentable Area cannot be rebuilt or made fit for the purposes of the
Sub-Tenants thereof within one hundred and eighty (180) days of the damage or
destruction, the Landlord may at its option terminate this Lease by giving the
Sub-Tenant within thirty (30) days of the damage or destruction notice of
termination and the Sub-Tenant shall with reasonable expedition, but in any
event within sixty (60) days after the delivery of the notice of termination,
deliver up possession of the Leased Premises to the Landlord.
(d) The Leased Premises shall be deemed to have been rebuilt when the
Landlord's architect certifies that they have been repaired, rebuilt or restored
to the point where the Sub-Tenant could occupy them for the purpose of
rebuilding, restoring, replacing or repairing the Sub-Tenant's Improvements; the
issuance of the certificate shall not relieve the Landlord of its obligations to
complete its work under Article 6.02. The Sub-Tenant shall forthwith after
issuance of the certificate proceed to rebuild, restore, replace and repair the
Sub-Tenant's improvements, in accordance with the provisions hereof.
7.04 LOSS AND DAMAGE
(a) The Landlord shall not be responsible in any way for any injury to any
person, or for any loss of or damage to any property belonging to the Sub-Tenant
or to other occupants of the Leased Premises or to their respective invitees,
licensees, agents, servants or other persons from time to time attending at the
Leased Premises while such person or property is in or about the Building
including without limiting the foregoing, any loss of or damage to any such
person or property caused by theft or breakage, or by smoke, steam, water, ice,
rain, snow or fumes which may leak, issue or flow into the Leased Premises from
any part of the Landlord's Property or from the sprinkler, drainage or smoke
pipes or plumbing equipment therein, or from any adjacent or neighboring lands
or premises or from any other place or quarter, or for any loss or damage caused
by or attributable to the condition or arrangements of the electric or other
wiring or of the air conditioning equipment or caused by anything done or
omitted to be done by any other tenant of premises in the building, or by any
agent, building manager, contractor or person from tune to time employed by the
landlord to perform janitor services or security services in or about the leased
premises or the building, or for any other loss whatsoever with respect to the
Leased Premises or any business carried on therein.
(b) The Landlord shall not be responsible, and the Sub-Tenant shall not be
entitled to claim abatement or diminution of Rent, for any damage whatsoever,
including indirect or consequential damage or damages for personal discomfort,
illness, or inconvenience of the Sub-Tenant or the Sub-Tenant's servants,
clerks, employees, invitees or other persons which may be caused by reason of
non-performance or partial performance of any covenants of the Landlord herein
contained, including failure of heating apparatus, air conditioning equipment,
elevator equipment or other equipment, facilities or systems or temporary
stoppage or shutdown thereof for the purpose of effecting repairs or
improvements to them or for any other reason whatever, or by reason of the
failure of electric or other power or otherwise, or for the failure in the
supply of electric light in the corridors, passages or stairways, or for failure
to keep same lighted.
7.05 LANDLORD's RIGHT TO DO WORK
(a) The Landlord shall have the right to make additions, improvements,
installations, alterations and repairs in and to the Leased Premises and the
Landlord's Property including, without limitation, all entrances thereto and
exits therefrom, and in relation to any such additions, improvements,
installations, or repairs the Landlord may cause such obstructions and
interference with the use or enjoyment of the Leased Premises and the Landlord's
Property as may be reasonably necessary for the purposes aforesaid and may
interrupt or suspend the supply of electricity, water or other services when
necessary and until said additions, improvements, installations, alterations or
repairs shall have been completed, and there shall be no abatement in Rent nor
shall the Landlord be liable by reason thereof. All such additions,
improvements, installations, alterations or repairs shall be made as
expeditiously as reasonably possible. The Landlord further reserves the right at
any time and from time to time to grant, modify-, and terminate casements or
other agreements pertaining to the use and maintenance of all or parts of the
Landlord's Property.
(b) The Landlord and any persons authorized by the Landlord shall have the
right to use, install, maintain and/or repair pipes, sprinklers, wires, ducts
or other installations in, under or through the Leased Premises or in connection
with the supply of any services to the Leased Premises or any other premises in
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the Building, including without limiting the generality of the foregoing, gas,
electricity, water, sanitation, telephone, heating, air conditioning and
ventilation, without the same constituting a trespass or a re-entry or an
eviction of the Sub-Tenant in whole or in part. Such work shall be done as
expeditiously as is reasonably possible.
(c) The Landlord and any persons authorized by the Landlord shall have the
right to enter upon the Leased Premises to make such decorations, repairs,
alterations, improvements or additions as it may deem advisable and the Landlord
or any persons authorized by the Landlord shall be allowed to take all material
into and upon the Leased Premises that may be required therefor without the same
constituting a trespass or a re-entry or an eviction of the Sub-Tenant in Whole
or in part. The Rent hereunder shall in no way abate while such decorations,
repairs, alterations, improvements or additions are being made by reason of loss
or interruption of the business of the Sub-Tenant because of the prosecution of
any such work. Such work shall be done as expeditiously as is reasonably
possible.
7.06 LANDLORD"S REPAIR AND IMPOSSIBILITY OF PERFORMANCE
(a) If any elevator of the building or any of the boilers, engines, pipes,
climate control equipment or other apparatus or ail), of them used for the
purpose of heating or air conditioning or other climate control or for the
purpose of operating the elevator or if the water pipes, drainage pipes,
electric lighting or other equipment of the Building get out of repair or become
damaged or destroyed the Landlord shall have a reasonable time in which to make
such repairs or replacements as may be reasonably required for the resumption of
those services to the Leased Premises which it has by this Lease expressly
agreed to provide, and the Sub-Tenant shall not be entitled to any abatement or
diminution of Rent or compensation or damages therefor, but should any such
equipment of the Building become impaired, damages of destroyed through the
deliberate act or omission or the negligence of the Sub-Tenant or its employees
the expense of the necessary repair shall be borne by the Sub-Tenant who shall
pay the same to the Landlord upon demand as Additional Rent. Nothing in this
Article 7.06(a) shall, however, obligate the Landlord to provide ally services
to the Leased Premises or to make any repairs not herein specifically required
to be prodded or made by the Landlord.
(b) Whenever and to the extent that the Landlord shall be unable to fulfill,
or shall be delayed or restricted in fulfilling any obligation hereunder in
respect of the supply or provision of any service or utility or the doing of any
work or the making of any repairs by reason of being unable to obtain the
material, goods, equipment, service, utility or labour required to enable it to
fulfill such obligation or by reason of any statute, law or order-in-council or
any regulation or order passed or made pursuant thereto or by reason of the
order or direction of any administrator, controller or board, or any government
department or officer or other authority, or by reason of not being able to
obtain any permission or authority required thereby, or by reason of any other
cause beyond its control whether of the foregoing character or not, the Landlord
shall be entitled to extend the time for fulfillment of such obligation by a
time equal to the duration of such delay or restriction, and the Sub-Tenant
shall not be entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned, or to cancel or modify this Lease.
7.07 LANDLORD MAY PERFORM COVENANTS
The parties hereto agree that it the Sub-Tenant shall fail to perform or cause
to be performed each and every one of the covenants and obligations of the
Sub-Tenant in this Lease contained, the Landlord, without limiting any other
remedy which it may have, shall have the right at all times to enter the Leased
Premises for the purpose of curing any such default of the Sub-Tenant, and no
such entry for such purpose shall be deemed to work a forfeiture or termination
of this Lease, and the Sub-Tenant shall permit such entry. The Landlord shall
give not less than seven (7) daysnotice to the Sub-Tenant of its intention to
enter the Leased Premises for such purpose but may enter upon a shorter period
of notice or without notice where, in the Landlord's reasonable judgment, there
is real or apprehended emergency or danger to persons or property. or where any
delay in remedying such default would or might materially prejudice the
Landlord. For the purposes of curing the default of the Sub-Tenant under the
covenants of this Lease, the Landlord may perform or cause the same to be
performed and do or cause to be done such things as may be necessary or
incidental thereto, (including, without limiting the foregoing, the right to
make repairs, installations, erections and expend monies). The Sub-Tenant shall
reimburse the Landlord upon demand for all expenses incurred by the Landlord in
remedying any such default, together with interest thereon from the date
incurred until paid at the rate of interest specified in Article 7.12 hereof.
The Landlord shall be under no obligation to remedy any default of the
Sub-Tenant, and shall not incur any liability to the Sub-Tenant or any action of
omission in the course of its remedying or attempting to remedy any such default
unless such act amounts to gross negligence.
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7.08 DEFAULT, TERMINATION AND RE-ENTRY
(a) The parties hereto mutually agree as follows that if and whenever:
(i) The tenant shall default in payment of rent and such default shall
continue for (5) five days after notice thereat given by the Sub-Landlord to the
Sub-Tenant; or
(ii) the Sub-Tenant shall default in performing or observing any of its
covenants or obligations under this Lease other than to pay Rent, and the
Landlord shall have given to the Sub-Tenant notice of such default, and at the
expiration of ten (10) days after the giving of such notice the default shall
continue to exist or, in the case of a default which cannot with due diligence
be cured within a period of (10) days, the Sub-Tenant shall have failed to
proceed promptly after giving of such notice to being to cure the same or shall
thereafter have failed to carry out the curing of the default with diligence; or
(iii) the balance of the Term hereof or any of the goods and chattels
of the Sub-Tenant or of the Indemnifier, if any, shall be seized or taken in
execution or attachment; or
(iv) the Sub-Tenant or the Indemnifier if any, shall make an assignment
for the benefit of the creditors, shall make any bulk sale, shall become
bankrupt, or shall make application for relief under the provisions of any
statute now or hereafter in force concerning bankrupt or insolvent debtors, or
take any action whatsoever, with a view to the winding up, dissolution or
liquidation of the Sub-Tenant, or the Indemnifier, if any, or if a receiver or
receiver-manager is appointed for all or a portion of the property of the
Sub-Tenant or of the Indemnifier, if any; or
If the Sub-Tenant abandons or attempts to abandon the Leased Premises or
attempts, except in the normal course of business to remove its goods and
chattels from the Leased Premises, or if the Leased Premises have become and
remain vacant for a period of thirty (30) days or are used by any person other
than such as are entitled to use the same hereunder or shall be used for any
purpose other than that for which they were let without the prior written
consent of the sub-Landlord;
then and in any such cases the then current month's Rent together with the Rent
for the three (3) months next ensuing shall immediately become due and payable,
and the sub-Landlord may, without notice of any further legal process whatsoever
forthwith re-enter upon the Leased Premises or any part thereof in the name of
the whole, whereupon in addition to all other rights, the sub-Landlord shall
have the right to terminate this Lease and the Term forthwith by giving notice
in writing addressed to the Sub-Tenant of its intention to do so, anything
contained herein or in any statute or law to the contrary notwithstanding,
provided however, that such termination shall be wholly without prejudice to the
right of the Landlord to recover arrears of Rent to the date of such termination
or damages for any antecedent breach of covenant on the part of the Sub-Tenant.
PROVIDED FURTHER, that notwithstanding such termination, the Landlord may
subsequently recover from the Sub-Tenant all losses, damages, costs (including
without limitation legal costs on a solicitor client basis) and expenses
whatsoever suffered by reason of the Lease having been prematurely terminated;
(b) the Sub-Tenant agrees with the Landlord that in any of the events
described in this Article 7.08(a), the Landlord, in addition to the other rights
hereby reserved shall have the right to enter the Leased Premises as agent of
the Sub-Tenant, either by force or otherwise, without being liable for any
prosecution therefor and on notice to the SubTenant to release or sublet as the
Sub-Tenant's agent the Leased Premises or any part or parts thereof and to
receive the Rent therefor, and as agent of the Sub-Tenant to take possession of
any furniture or other property on the Leased Premises and to sell the same at
public or private sale without notice, and to apply the proceeds of such
releasing or subletting and of such sale on account of rent due or in
satisfaction of the breach of any covenant or agreement herein contained and the
Sub-Tenant shall remain liable for the deficiency, if any, together with the
landlord's reasonable expenses of retaking and reletting and conducting such
sale, including legal fees as between solicitor and client, and the landlord
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shall nevetheless be entitled to sue for and to recover from the Sub-Tenant Rent
due for the remainder of the Term in the event the Landlord has not relet, or,
if the Landlord has relet, to recover from the Sub-Tenant the difference between
the amounts payable by any new Sub-Tenant of the Leased Premises or any part or
parts thereof and Rent required to be paid by the Sub-Tenant pursuant to this
Lease for the balance of the Term, notwithstanding in either case that the Term
shall not have ceased, and the Sub-Tenant agrees to pay such amount as so
determined promptly on demand.
7.09 OVERHOLDING
If, at the expiration of this Lease, the Sub-Tenant shall, without the written
consent of the sub-Landlord, hold over for any reason the tenancy of the
Sub-Tenant, the Sub-Tenant thereafter shall, in the absence of written agreement
to the contrary, be from month to month at a rent per month equal to the amount
that is double the monthly rental payable by the SubTenant in respect of the
immediately preceding month under this Lease, such rent to be payable in advance
on the first day of each month, and such tenancy shall be upon and subject to
all the terms and conditions of this Lease, including the payment of Additional
Rent, except that the tenancy shall be from month to month without any right of
renewal.
7.10 LANDLORD'S SIGNS
Provided that the Landlord shall have the right, within six months from the
expiration of the Term, to place upon the Leased Premises a notice of reasonable
dimensions and reasonably placed so as not to interfere with the business of the
SubTenant_ stating that the Leased Premises are for lease and further provided
that the Sub-Tenant will not remove such notice or permit the same to be
removed.
7.11 COLLECT OR OTHER AMOUNTS DUE
Any sums, costs, expenses or other amounts from time to time due and payable by
the Sub-Tenant to the sub-Landlord under the provisions of this Lease, whether
by way of indemnity or otherwise, and whether or not expressed to be Rent or
Additional Rent hereunder, may at the option of the sub-Landlord be treated as
and deemed to be Rent, in which event the sub-Landlord will have all remedies
for the collection thereof, when in arrears, as are available to the
sub-Landlord for the collection of Rent in arrears, and the sub-Landlord shall
be entitled to levy distress therefor in accordance with Article 7.01.
7.12 INTEREST ON AMOUNT IN ARREARS
When Rent shall be in arrears, the same shall bear interest from the date upon
which the same was first due until paid at a rate per annum equal to the lesser
of five percent (5%) per annum above the rate of interest from time to time
designated by the Landlord's principal bank at the time as being its "Prime
Rate" charged to borrowers at its Main Branch in Vancouver at the time, and the
maximum rate allowed under the law, and the sub-Landlord shall have all remedies
for the collection of such interest as in the case of Rent in arrears, but this
stipulation for interest shall not prejudice or affect any other remedies of the
sub-Landlord under this Lease.
7.13 EVIDENCE OF PAYMENTS
The Sub-Tenant shall from time to time, at the request of the sub-Landlord,
produce to the Landlord satisfactory evidence of the due payment by the
Sub-Tenant of all payments required to be made by the tenant under this lease,
except payment of rent required to be made to the Sub-Landlord.
7.14 INSPECTION
Provided also that, during the term, any person or persons may inspect the
leased premises and all parts thereof at all reasonable times on producing a
written order to that effect signed by the sub-Landlord, or its agents.
7.15 SUBORDINATION
(a) This Lease and everything herein contained is and shall be subordinate
and postponed to all mortgages, including any deed of trust and mortgage
securing bonds and all indentures supplemental thereto, which may now or
hereafter affect the Landlord's Property and to all modifications,
consolidations, replacements and extensions thereof.
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(b) The Sub-Tenant hereby covenants and agrees that it will at any time and
from time to time as required by the Landlord during the Term thereof execute
promptly any confirmation of such subordination and postponement and give all
further assurances reasonably required by the Landlord to evidence and
effectuate this subordination and postponement of its rights and privileges
hereunder to the holder or holders of any such mortgages or mortgages created
after this Lease and the Sub-Tenant hereby constitutes the Landlord, the agent
or attorney of the Sub- Tenant for the purpose of executing any such certificate
and of making application at any time and from time to time to register
postponements of this Lease in favour of any such charge or charges in order to
give effect to the foregoing.
(c) The Sub-Tenant if requested by any mortgagee (including any trustee
under or deed of trust) shall attorn to such person as a Sub-Tenant upon all
the terms of this Lease.
7.16 DIRECTORY BOARD
The Sub-Tenant shall be entitled to have its name shown upon the directory board
in the Building at the Sub-Tenant's expense, but the Landlord shall in its sole
discretion design the style of such identification and allocate the space on the
directory board for each Sub-Tenant.
7.17 ENVIRONMENTAL LAW - HAZARDOUS WASTE
(a) Without limiting any other provision of the Lease, the Sub-Tenant agrees
to comply in all respect with all laws, ordinances, rules and regulations
relating to the storage, transport, use of disposal of toxic and hazardous
material (hereinafter called "Hazardous Substance"), including specifically
without limitation, the Canadian Environmental Protection Act, the Clean Air Act
and the Work Place Hazardous Materials information system legislation and the
successor statutes. The Sub-Tenant agrees to indemnify and hold the sub-Landlord
harmless from and against any and all claims, losses, costs, damages,
liabilities, civil fines and penalties, criminal fines and penalties, expenses
(including solicitor's fees), cleanup costs or other injury resulting from or
arising out of the Sub-Tenant's (including employees, contractors and agents)
failure to comply with the foregoing sentence. The Sub-Tenant agrees to post and
keep posted in a prominent location of the working area of the Leased Premises
any memorandum or bulletin from the Landlord concerning Hazardous Substances.
The foregoing indemnity shall survive the termination of the Lease, any
subsequent renewal and shall continue until the applicable statute of limitation
runs out.
(b) The Sub-Tenant shall not cause or permit any Hazardous Substance, as
defined or declared to be such pursuant to any environmental laws, to be
brought upon, kept or used in or about the Leased Premises or any part thereof
without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld if the Sub-Tenant demonstrates to the landlord's
reasonably satisfaction that the Hazardous substance is reasonably necessary for
the Sub-Tenant's permitted use of the leased premises and disposed of in a
manner that complies with all environmental laws regulating the hazardous
substance
(c) The Sub-Tenant shall at the Sub-Tenant's own expense comply with all
environmental laws regulating the manufacture, use, storage, transportation and
disposal of Hazardous Substances and shall make, obtain and deliver all reports
and studies required by any authority.
(d) The Landlord may at any time and from time to time inspect the Leased
premises and the Sub-Tenant's records of the purpose of identifying the
existence, nature and extent of any Hazardous Substance on the Leased Premises
and the Sub-Tenant's use, storage and disposal of any Hazardous Substance, and
the Sub-Tenant agrees to co-operate with the Landlord in its performance of such
inspection. If the Landlord, acting reasonably, determines following any such
inspection that further testing or investigation is required in order to monitor
the Sub-Tenant's compliance with any environmental laws, or may arrange for such
testing or investigation itself, in which case the Landlord's cost of any such
testing or investigation shall be paid for by the Sub-Tenant to the sub-Landlord
as Additional Rent forthwith upon demand therefor.
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(e) If any authority shall require the cleanup of any Hazardous Substance
held, released, spilled, abandoned or placed upon the Leased Premises or
released into the environment by the Sub-Tenant in the course of the
Sub-Tenant's business or as a result of the Sub-Tenant's use or occupancy of the
Leased Premises, then the Sub-Tenant shall at its own expense, prepare all
necessary studies, plans and proposals and submit the same for approval, provide
all bonds and other security required by the authorities and carry out and
complete the work required, provide to the Landlord full information with
respect to proposed plans and status from time to time of its cleanup work and
comply with the Landlord's requirements with respect to such plans.
(f) If the Sub-Tenant creates or brings to the Leased Prenuses any Hazardous
Substance or if the conduct of the Sub-' Tenant's business shall cause there to
be any Hazardous Substance at the Leased Premises then, notwithstanding any
provision in this Lease or rule of law to the contrary, such Hazardous Substance
shall be and remain the sole and exclusive property of the Sub-Tenant and shall
not become the property of the Landlord notwithstanding the degree of affixation
to the Leased Premises of the Hazardous Substance or the goods containing the
Hazardous Substance, and notwithstanding the expiry or early termination of the
Lease.
(g) Upon the expiration or early termination of the Term, the Sub-Tenant at
its sole expenses shall remove and dispose of all Hazardous Substances and all
storage tanks and other container therefor in accordance with all environmental
laws to the extent required by the Landlord, and to the extent that such removal
and disposal involves any excavation work at the Leased Premises, the Sub-Tenant
shall restore the Leased Premises to the same grade level as immediately prior
to excavation, using only clean uncontaminated soil or other material
satisfactory to the Landlord.
7.18 RELOCATION OF SUB-TENANT
At any time after the entering into of this Lease, the Landlord may substitute
for the Leased Premises, other premises in the Building (the "New Premises"), in
which event the New Premises shall be deemed to be the Leased Premises for all
purposes under this Lease, provided that the New Premises shall be similar to
the Leased Premises in area and configuration; the substitution shall be made in
order to lease the Leased Premises to a Sub-Tenant of the Building who then
occupies, or as a result of such substitution will occupy, all or a substantial
part of the floor of the building on which the leased premises are located ; if
the Sub-Tenant is then occupying the leased premises, the landlord shall pay the
actual and reasonable expenses of physically moving the tenant, it's property
and equipment to the new premises, the landlord shall give the tenant not less
than thirty (30) days' prior written notice of such substitution, and the
landlord, at its expense, shall improve the new premises with improvements
substantially similar to those in the leased Premises at the time of such
substitution, if the Leased Premises are then improved.
7.19 INDEMNIFIER'S OBLIGATIONS
The obligations of the Indemnifier, if any, shall be as set out in Schedule "B".
GENERAL PROVISIONS
------------------
8.01 LEASE ENTIRE AGREEMENT
The Sub-Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions, express or implied, relating to this Lease
or the Leased Premises save as expressly set out in this Lease, and that this
Lease, including the Schedules attached and the Rules and Regulations,
constitutes the entire agreement between the Landlord and the Sub-Tenant and may
not be modified in any way except by subsequent agreement in writing executed by
the Landlord and the Sub-Tenant; the Landlord's janitors, superintendents and/or
agents are not authorized to amend this Lease and any representations,
alterations, amendments or qualifications made by the Landlord's janitors,
superintendents and/or agents (unless such agents are specifically authorized)
shall be null and void.
8.02 NON-WAIVER AND CONDONING
(a) No act of the sub-Landlord, other than an express waiver in writing,
shall constitute a waiver of any rights of the sub-Landlord, notwithstanding any
principle of law or equity. Further, no condoning, excusing or overlooking by
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the sub-Landlord of any default, breach or non-observance by the Sub-Tenant at
any time or times in respect of any covenant, proviso or condition herein
contained shall operate as a waiver of the Landlord's rights hereunder in
respect of any continuing or subsequent default, breach or non-observance or of
any other Event of Default, or so as to defeat or affect in any way the rights
of the sub-Landlord herein in respect of any such continuing or subsequent
default, breach, non-observance or Event of Default. All rights and remedies of
the sub-Landlord in this Lease contained shall be cumulative and not
alternative.
(b) The acceptance of Rent from or the performance of any obligation
hereunder by a person other than the Sub-Tenant shall not be construed as an
admission by the sub-Landlord of any right, title or interest of such person as
Tenant, assignee, transferee or otherwise in the place and stead of the
Sub-Tenant.
(c) The acceptance by the sub-Landlord as a part payment of any sums
required to be paid hereunder shall not constitute waiver or release of the
right of the Landlord to payment in full of such sums.
8.03 TRANSFER BY LANDLORD
In the event of a sale, transfer or lease by the Landlord of the Landlord's
Property or of the Building or a portion thereof containing the Leased Premises,
or in the event of the assignment by the Landlord of this Lease or any interest
of the Landlord hereunder, the Landlord shall, without further written
agreement, to the extent that such purchaser, transferee or lessee agrees to be
or becomes bound by the covenants and obligations of the Landlord hereunder, be
automatically freed, released and relieved of all liability or obligations under
this lease.
8.04 REGISTRATION
The Sub-Tenant covenants and agrees that the Sub-Landlord shall not be obliged
to execute or deliver this Lease in form registrable under the Land Title Act
of British Columbia, and that the Sub-Tenant will not register or record this
Lease against the title to the Lands unless and until so requested by the
Landlord. The costs of any registration evidencing this Lease shall be paid by
the Sub-Tenant.
8.05 BROKERAGE COMMISSIONS
Any brokerage commissions arising from an act of the Sub-Tenant with respect to
this Lease including renewal costs shall be borne exclusively by the Sub-Tenant
and the Sub-Tenant shall indemnify and save harmless the Landlord from any and
all claims with respect thereto.
8.06 NOTICES
Any notice, request or demand herein provided for or given hereunder, it given
by the Sub-Tenant to the Landlord, shall be sufficiently given if delivered to
an officer of the Landlord's agent MacKenzie Management Ltd. or Colliers
Macaulay Nicolls or if mailed by prepaid mail as follows:
Colliers Macaulay Nicolls
15th Floor, 200 Granville Street
Vancouver, B.C. V6C 2R6
Any notice herein provided for or given hereunder if given by the Landlord to
the Sub-Tenant, shall be sufficiently given if delivered personally to an
employee of the Sub-Tenant at the Leased Premises or if mailed by prepaid mail
as follows:
Either the Landlord or the Sub-Tenant may at any time give notice in writing to
the other of any change of address of the party giving such notice, or any
additional person to whom notices shall be given, and from and after the giving
of such notice the address therein specified shall be deemed to be the address
of such party and persons for the giving of such notices thereafter, and the
Landlord may at any time appoint a new agent.
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8.07 ARBITRATION
Where arbitration is called for under the terms hereof, the Landlord and the
Sub-Tenant agree to submit such matters to arbitration in the following manner:
(a) the Landlord and Sub-Tenant shall each appoint one (1) arbitrator and
both such arbitrators shall be appointed within fifteen (1 5) days of the date
of the notice of such appointment being given by one party to the other;
(b) the two (2) arbitrators so appointed shall, within fifteen (15) days of
the date of the appointment of the last appointed arbitrator agree upon and
appoint a third arbitrator;
(c) the three (3) arbitrators shall, within thirty (30) days of the
appointment of the third arbitrator, reach a decision and notify the Landlord
and Sub-Tenant thereof,
(d) the decision of the majority of the three (3) arbitrators shall be
binding upon the Landlord and Sub-Tenant;
(e) if the Landlord or the Sub-Tenant fails to appoint an arbitrator within
the time limited in paragraph (a) above, the arbitrator appointed by one of them
shall reach a decision, notify the Landlord and Sub-Tenant thereof, and his
decision shall be binding upon the Landlord and
(f) if the two arbitrators fail to agree upon and appoint a third
arbitrator, both arbitrators shall be dismissed and the matter to be decided
shall forthwith be submitted to arbitration under the provisions of the
Commercial Arbitration Act of the Province of British Columbia, or any similar
Act and any statutory modification or re-enactment thereof;
(g) the cost of the arbitration shall be borne equally by the parties.
8.08 CONSTRUED COVENANTS, SEVERABILITY
All of the provisions of this Lease are to be construed as covenants and
agreements as though the words importing such covenants and agreements were used
in each separate paragraph hereof. Should any provisions of this Lease be
illegal or not enforceable they shall be considered separate and severable from
the Lease and its remaining provisions shall remain in force and be binding upon
the parties hereto as though the said provisions had never been included.
8.09 INDEX, HEADINGS
The headings to the Articles and clauses in this Lease have been inserted as a
matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Lease or any provision hereof.
8.10 EXTENDED MEANINGS
In this Lease, unless the context otherwise requires, the word "Sub-Tenant"
shall be deemed to include and mean each and every person or party mentioned as
a Sub-Tenant herein, be the same one or more, and if there shall be more than
one Sub-Tenant, their obligations hereunder shall be joint and several and any
notice required or permitted by terms of this Lease may be given by or to any
one of them, and shall have the same force and effect as if given by or to all
of them. Any reference to Sub-Tenant shall also include, where the context
allows, the servants, employees, agents, invitees and licensees of the
Sub-Tenant and all others over whom the Sub-Tenant might reasonably be expected
to exercise control. Wherever the word "Landlord" is used in this Lease it shall
be deemed to include the Landlord and its duly authorized representatives. The
words "here", "hereof, "herein", "hereby", "hereto", "hereunder", "hereinafter"
and similar expressions used in this Lease relate to the whole of this Lease and
not to any particular Article, subsection or schedule unless otherwise expressly
provided. Whenever the singular or masculine or neuter is used in this Lease,
the same shall be construed to mean the plural or feminine or body corporate,
and vice versa, where the context of this Lease of the parties hereto may so
require.
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8.11 SUCCESSOR BOUND
This Lease and everything herein contained shall ensure to the benefit of and be
binding upon the heirs, executors, administrators, successors and other legal
representatives, as the case may be, of each of the parties hereto. No rights,
shall enure to the benefit of any assignee of the Sub-Tenant unless the
assignment to such assignee has been approved by the Landlord as provided in
Article 5.17.
8.12 TIME OF ESSENCE
Time shall be of the essence of this Lease.
8.13 GOVERNING LAW
This Lease shall be governed by and construed in accordance with the laws of the
Province of British Columbia.
8.14 GOVERNMENTAL APPROVALS
The Sub-Tenant represents that it may carry on its business in the Leases
Premises and that it has obtained all necessary permits, licences and approvals
required to permit it to do so.
8.15 FEDERAL SALES TAX
Notwithstanding any other provisions of this Lease to the contrary, the
Sub-Tenant shall pay to the Landlord an amount equal to any and all goods and
services taxes, sales taxes, value added taxes, or any other taxes imposed on
the Landlord with respect to rents, additional rents or any other amounts
payable by the Sub-Tenant to the Landlord under this Lease, whether
characterized as a goods and services tax, sales tax, value added tax or
otherwise (herein called "Sales Taxes"), it being the intention of the parties
that the Landlord shall be fully reimbursed by the Sub-Tenant with respect to
any and all Sales Taxes payable by the Landlord. The amount of such Sales Taxes
so payable by the Sub-Tenant shall be calculated by the Landlord in accordance
with the applicable legislation and shall be paid to the Landlord at the same
time as the amounts to which such Sales Taxes apply are payable to the Landlord
under the terms of this Lease or upon demand at such other time or times as the
Landlord from tune to time determines. Notwithstanding any other provision in
this Lease to the contrary, the amount payable by the Sub-Tenant under this
paragraph shall be deemed not to be rent or additional rent, but the Landlord
shall have all of the same remedies for and rights of recovery of such amount as
it has for recovery of rent under this Lease.
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SCHEDULE "A"
TO A SUBLEASE BETWEEN DEVON GROUP MANAGEMENT CORPORATION AND
ALTTECH VENTURES CORPORATION
"Land" comprises that certain parcel or tract of land and premises situate in
the City of Vancouver, British Columbia, more particularly known and described
as:
Firstly: Subdivisions "C", "D" and "E", except part in each Subdivision
included in Explanatory Plan 5088, now road, and
Secondly: Subdivisions "A" and "B"
all of- Lots 12 and 13, Block 15
District Lot 185
Plan 1157
2. "Leased Premises"
are
(i) those parts of the Building located on the floor designated the 8th
floor and as shown outlined in red on the plan attached hereto as Schedule "B"
which for the purposes of this Lease shall be deemed to have a Rentable Area of
Two Thousand Four Hundred Seventy-Six (2,476) square feet.
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SCHEDULE "B"
"Land" comprises that certain parcel or tract of land and premises situate in
the City of Vancouver, Bt Columbia, more particularly known and described as:
Firstly: Subdivisions "C", "D" and "E", except part in each Subdivision
Include Explanatory Plan 5088, now road, and
Secondly: Subdivisions "A" and "B"
all of: Lots 12 and 13, Block IS
District Lot 185
Plan 1157
[Floor Plan]
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SCHEDULE "C"
RULES AND REGULATIONS
1. The Sub-Tenant shall not permit any cooking or the heating of food in the
Leased Premises nor the use of any electrical apparatus likely to cause an
overloading of electrical circuits.
2. The sidewalks, entries, passages, elevators and staircases shall not be
obstructed or used by the Sub-Tenant, his agents, servants, contractors,
invitees or employees for any purpose other than ingress to and egress from the
Leased Premises.
3. The Sub-Tenant, his agents, servants, contractors, invitees or employees
shall not bring in or take out, position, construct, install or move any safe,
or other heavy office equipment or facility without first obtaining the consent
in writing of the Landlord. All damage done to the Building by moving or using
any such heavy equipment or other office equipment or furniture shall be
repaired at the expense of the Sub-Tenant. The moving of all heavy equipment or
other office equipment or furniture shall occur only between 6:00 p.m. and the
following 8:00 a.m. or any other time consented to by the Landlord. No freight
or bulky manor of any description will be received into the Building or carried
in the elevators, except during hours approved by the Landlord.
4. All persons entering and leaving the Building at anytime other than
during Normal Business Hours being 6:00 a.m. to 6:00 p.m. on Mondays to Fridays
inclusive, of each week, shall if requested register in the books kept by the
Landlord at or near the night entrance and the Landlord will have the right to
prevent any person from entering or leaving the Building unless provided with a
key to the premises to which such person seeks entrance and/or a pass in a form
approved by the Landlord.
5. The Sub-Tenant shall not place or cause to be placed any additional locks
upon any doors of the Leased Premises without the approval of the Landlord and
subject to any conditions imposed by the Landlord. Additional keys may be
obtained from the Landlord at the cost of the Sub-Tenant.
6. The water closets and other water apparatus shall not be used for any
purpose other than those for which they were constructed. Any damage resulting
from misuse shall be borne by the Sub-Tenant by whom or by whose agents,
servants, or employees the same is caused. Sub-Tenants shall not let the water
run unless it is in actual use, and shall not deface or mark any part of the
Building, or drive nails, spikes, hooks or screws into the walls or woodwork of
the Building.
7. No one shall use the Leased Premises for sleeping apartments or
residential purposes.
8. The Sub-Tenant shall permit window cleaners to clean the windows of the
Leased Premises during normal business hours.
9. No noise caused by any instrument or other device, or otherwise, which
may disturb other Sub-Tenants of the Building shall be permitted.
10. The Landlord will have the care of all heating and air-conditioning
apparatus.
11. The Sub-Tenant, when closing the Leased Prenuses day or evening, shall
close and lock all doors and windows.
12. The Sub-Tenant shall not do or permit anything to be done in or upon the
Leased Premises or bring or keep anything therein which will in any way conflict
with the laws relating to fire or with the regulations of the Fire Department or
the Health Department, or with any of the rules of the City in which the Leased
Premises are located.
13. The Sub-Tenant shall not suffer any accumulation of useless property or
rubbish in the Leased Premises. No animals shall be kept in or about the Leased
Premises.
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14. The Sub-Tenant shall give the Landlord prompt notice of any accident to
or any detect in the plumbing, heating, air-conditioning, ventilating,
mechanical or electrical apparatus or any other part of the Building.
15. The parking of automobiles shall be subject to the charges and the
regulations of the Landlord. The Landlord shall not be responsible for damage to
or theft of any car, its accessories or contents.
16. If the Sub-Tenant desires any electrical or communications wiring, the
Landlord reserves the right to direct qualified persons as to where and how the
wires are to be introduced, and without such directions no borings or cutting
for wires shall take place. No other wires or pipes of any kind shall be
introduced without the prior written consent of the Landlord.
17. The Sub-Tenant shall keep the sun drapes (if any) or venetian blinds in
a closed position at all times at windows which are exposed to the sun. The
Sub-Tenant shall not interfere with or obstruct any perimeter heating, air
conditioning or ventilating units.
18. The Sub-Tenant shall take care of the rugs and drapes (if any) which it
installs in the Building and shall arrange for tile carrying-out of regular spot
cleaning and shampooing of the said carpets and any cleaning of the said drapes
in a manner acceptable to the Landlord.
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IN WITNESS WHEREOF the parties hereto have executed this Lease.
Signed Sealed & Delivered by
ALTTECH VENTURES CORPORATION
in the presence of
/s/
---------------------------------
Witness
888-1199 W. Pender St.
-------------------------
Vancouver, B.C.
----------------
Address
Businessman /s/ Sam Henry
------------------------------------- -----------------------------------------
Occupation Per: Alttech Ventures Corporation
Signed Sealed & Delivered by
DEVON GROUP MANAGEMENT CORPORATION
in the presence of
/s/
-------------------------------------
Witness
888 - 1199 W. Pender St.
-------------------------------------
Vancouver, B.C.
-------------------------------------
Address
Businessman /s/
------------------------------------- -----------------------------------------
Occupation Per: Devon Group Management Corporation
/s/
-----------------------------------------
Per: Snowfield Resources Ltd as
guarantor as per section 3.01
/s/
-----------------------------------------
Per: Discovery-Corp. Enterprises Inc. as
guarantor as per section 3.01
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