1199 WEST PENDER STREET
VANCOUVER, BC
LEASE
BETWEEN
SHAMSAN DEVELOPMENTS LTD.
(THE "LANDLORD")
AND
ALTTECH VENTURES CORPORATION
(THE "TENANT")
COLLIERS MACAULAY NICOLLS INC,
("Agent")
15th Floor, 200 Granville Street
Vancouver, BC V6C 2R6
<PAGE>
THIS LEASE dated for reference this 1st day of December, 1999
BETWEEN: SHAMSAN DEVELOPMENTS LTD, a company duly incorporated under the
laws of the Province of British Columbia, and having an address at #288 - 1199
West Pender Street, in the City of Vancouver, in the Province of British
Columbia.
hereinafter called the "Landlord" OF THE FIRST PART
AND: 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
VSW 4135.
hereinafter called the "Tenant" OF THE SECOND PART
WITNESSETH:
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 "Indemnifies" 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 1 of Schedule "A" hereto.
1.08 "Landlord's Property" means the Lands and the Building.
1.09 "Lease" means this indenture, including all schedules attached hereto,
as from time to time amended in writing by the parties hereto.
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 mechanical 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.
<PAGE>
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, income, 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.
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 Tenant required or contemplated by
this Lease, 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.
<PAGE>
ARTICLE 2
GRANT AND TERM
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2.01 DEMISE
In consideration of the rents, covenants, agreements and conditions hereinafter
respectively reserved and contained, the Landlord HEREBY DEMISES AND LEASES to
the Tenant the Leased Premises, commonly known as Suite 889 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.
2.02 TERM
TO HAVE AND TO HOLD the Leased Premise for and during the term of three (3)
years and two (2) months (hereinafter sometimes referred to as the "Term"),
commencing the 1st day of December 1999 and ending the 31st day of January 2003.
ARTICLE 3
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
($2,06333) commencing on the 1st day of December, 1999 and on the first day of
each and every month thereafter until and including the 1st day of January,
2003.
If the Term commences on any day other than the first or expires on any day
other than the last day of a month. Rent payable under this Article 3.01 for the
fractions of a month at the commencement and at the end of the Term shall be
adjusted pro rata on a per diem basis;
3.01.01 DEPOSIT
The Tenant shall pay to the Landlord on execution of this Lease by the Tenant
the sum of Eight Thousand One Hundred Ninety & 81/100 Dollars ($8,190.81) as a
deposit to the Landlord to be applied in part to the first month's rent with the
remainder to stand as security for the payment by the Tenant of any and all
present and future debts and liabilities of the Tenant to the Landlord and for
the performance by the Tenant of any and all its obligations arising under or in
connection with this Lease. The Landlord shall repay the security deposit to the
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 Landlord may retain the security deposit and
apply it in reduction of any amounts owing by the Tenant to the Landlord. It is
understood that no interest shall accrue on the deposit held by the Landlord and
the Landlord shall not be obliged to pay any interest to the Tenant on the
deposit so held.
3.02 PLACE AND MANNER OF PAYMENT OF RENT
All Rent payable by the Tenant to the 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 Landlord may see fit, regardless of any designation or
instructions by the Tenant to the contrary;
(c) made by way of a series of cheques, post-dated to the respective
due dates of such payments, which the Tenant shall supply to the Landlord at the
commencement of each Lease Year or earlier should the Landlord so request,
without prejudice to any other right of remedy of the Landlord.
ARTICLE 4
NET LEASE AND ADDITIONAL RENT
-----------------------------
4.01 NET LEASE
The Tenant acknowledges and agrees that it is intended that this Lease shall be
a completely carefree net lease for the Landlord except as expressly herein set
out, and that the 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 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 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 Tenant covenants with the Landlord accordingly.
<PAGE>
4.02 ADDITIONAL RENT
Without limiting the generality of Article 4.01, the Tenant shall pay as
Additional Rent:
(a) the 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 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 fide 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 Tenant with written
notice of the amount of any such estimate, as well as of the 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 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 Tenant's share thereof, the Tenant
shall pay to the 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 Landlord may bill the Tenant for
the amount of its share thereof determined pursuant to the applicable provisions
of this Lease.
With respect to any Additional Rent which the Landlord has not elected to
estimate from time to time pursuant to Article 4.03, the Tenant shall pay to the
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, as well as the Tenant's
actual aggregate share thereof pursuant to the applicable provisions of this
Lease, and make available to the 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 Tenant shall pay to the Landlord the amount of the excess within fifteen
(IS) days of the receipt of any such statement. If the contrary is the case, the
Landlord shall either return it to the Tenant within fifteen (15) days of
delivery of such statement or give credit to the 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
Tenant to withhold any sum payable to the Landlord hereunder, or to claim
damages from the Landlord.
4.06 REVIEW OF ADDITIONAL RENT
Any payment made by the Landlord or made by the 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 Tenant to claim a
readjustment, provided such claim is made within twelve (12) month!, from tile
date of delivery of the statement referred to in Article 4.05. The certificate
of a charter: 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
Landlord and the 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 Tenant such portion of such cost or
amount in addition to the Tenant's Proportionate Share thereof as the Landlord
determines and the Tenant shall pay to the Landlord as Additional Rent the
amount so allocated forthwith upon written notice of the allocation being given
to the 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
Tenant of its intention to make such an allocation to the Tenant and in such
event the Landlord may estimate the amount thereof and the Tenant will pay the
amount of such estimate to the Landlord in monthly installments in advance and
the provisions in this Article 4 will apply mutatis mutandis.
<PAGE>
ARTICLE 5
TENANT'S COVENANTS
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The Tenant covenants and agrees with the Landlord as follows:
5.01 PAY RENT
To pay during the Term unto the 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 Tenant's Taxes when due. The Tenant shall be liable
to pay the Tenant's Taxes for any period falling wholly or partially within the
Term.
(b) If the Landlord is required by lawful authority to pay the Tenant's
Taxes or considers it advisable to pay the Tenant's Taxes which the Tenant
fails or neglects to pay, all moneys so paid by the Landlord shall be to the
Tenant's account and the Tenant shall forthwith pay the amount thereof to the
Landlord or the taxing authority as the Landlord may direct, and all amounts so
paid by the Landlord shall constitute Additional Rent forthwith payable.
(c) The Tenant further covenants and agrees that upon the written request of
the Landlord the Tenant will promptly deliver to the Landlord for inspection
receipts for payment of all such taxes, fees, assessments or other charges
payable by the Tenant under this Article 5.02 which were due and payable prior
to such request, and in any event will furnish to the Landlord, if requested by
the Landlord, evidence of such payments satisfactory to the Landlord before the
21st day of January in each year, covering payments for the preceding year.
(d) The Tenant will indemnify and keep indemnified the Landlord in respect
of all loss, costs, charges and expenses occasioned by or arising from all such
Tenant's Taxes and any loss, costs, charges and expenses so suffered by the
Landlord shall constitute Additional Rent forthwith payable.
5.03 PROPERTY TAX
(a) To pay to the 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 Tenant's
obligation set out herein for payment of its Proportionate Share of Property
Taxes shall be adjusted pro rata on a per diem basis between the Landlord and
the Tenant, to the intent and purpose that the 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 Tenant or any
subtenant, assignee or licensee of the Tenant, the 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 Tenant shall have
paid its Proportionate Share of the Property Taxes pursuant to this Article, and
the Landlord shall thereafter receive a refund of any portion of the Property
Taxes, the Landlord shall make an appropriate refund to the Tenant.
(e) Should the 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 Tenant shall be responsible for the
entire amount of such penalty and shall pay same to the Landlord promptly upon
demand. Failure to make such payment shall be a default under the terms of this
Lease.
<PAGE>
5.04 OPERATING COSTS
(a) To pay to the Landlord throughout 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 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 Tenant shall be
apportioned and adjusted pro rata on a per diem basis.
5.05 ELECTRICITY AND OTHER UTILITIES
(a) The 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 office
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 Tenant shall not,
without the 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 Landlord grants such consent, the cost of all additional risers
and other equipment required therefor shall be paid as Additional Rent by the
Tenant to the Landlord upon demand. As a condition to granting such consent, the
Landlord may require the Tenant to agree to an increase in the Additional Rent
for electricity by an amount which will reflect the increased costs to the
Landlord of the additional services to be furnished by the Landlord. The 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 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.
(b) The Landlord shall have the exclusive right to clean and maintain the
light fixtures and to attend to any replacement of electric light bulbs, tubes
and ballasts in the Leased Premises throughout the Term, and may adopt a system
of relamping and reballasting periodically on a group basis in accordance with
good practice in this regard. The Tenant shall pay to the 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 Tenant in the Leased Premises, the determination of any such
utilities used or consumed by the Tenant shall, at the option of the Landlord,
either be by a separate meter installed by the Landlord or if the Landlord so
requests by the Tenant, in each case at the expense of the Tenant, or
alternatively, be so allocated by the Landlord acting reasonably.
5.06 REMOVAL OF FIXTURES
(a) The 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 by the Tenant, but the
Tenant shall in such removal do no damage to the Leased Premises or shall make
good any damage which may be occasioned by such removal, and shall at the
Landlord's option restore or replace any parts which may previously have been
removed or altered by the Tenant; provided further that the Tenant shall not
remove or carry away from the Leased Premises any building or any plumbing,
heating or ventilating plant or equipment or other Building services.
(b) If the Tenant fails to remove its fixtures and restore the Leased
Premises as aforesaid, all such fixtures shall become the property of the
Landlord except to the extent that the Landlord continues to require removal
thereof pursuant to subclause (d) of this Article 5.06.
(c) Should the 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
tenants' fixtures and furnishings of the Tenant (whether or not attached in any
manner to the Leased Premises) shall, except to the extent the Landlord requires
the removal hereof pursuant to subclause (d) of this Article 5.06, become and be
deemed to be the property of the Landlord, without indemnity to the Tenant and
as additional liquidated damages in respect of such default and without
prejudice to any other right or remedy of the Landlord.
(d) Notwithstanding that any trade fixtures, furnishings, alterations,
additions, improvements of fixtures are or may become the Property of the
Landlord pursuant to the other provisions of this Article 5.06, the 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 Tenant's
expense, should the Landlord so require by notice to the Tenant and whether or
not the Term of this Lease has expired or otherwise been terminated.
<PAGE>
(e) If the Tenant, after receipt of a notice from the 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 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 Tenant, which expense shall forthwith be paid by the Tenant
to the Landlord.
5.07 INSURANCE
(a) The 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 Tenant, the Landlord
and the mortgagees of the Landlord as their respective interests may appear, the
following insurance:
(i) fire insurance with extended coverage endorsement covering leasehold
improvements made or installed by or on behalf of the 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 Tenant's use of any part of the Building and which
coverage shall include the activities and operations conducted by the Tenant 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 its mortgagee) may, acting
reasonably, require from time to time.
(b) All insurance shall be effected with insurers and brokers and upon terms
and conditions satisfactory to the Landlord, and copies of all policies if
requested by the Landlord or certificates 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 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 ( I ) year at a time, and the Tenant shall
pay to the Landlord as Additional Rent the amount of such premium immediately on
demand.
(e) In the event that both the Landlord and the 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 Tenant.
5.08 ACTS CONFLICTING WITH INSURANCE
The 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 Tenant, the Landlord shall have the right
at its option to terminate this Lease forthwith by giving notice of termination
to the 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 Tenant, the
Tenant shall pay to the Landlord the amount by which said premium shall be so
increased forthwith on demand.
5.09 REPAIR
(a) The Tenant covenants throughout the Term of this Lease at the 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 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 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 borne by the Tenant, who shall pay them to the Landlord forthwith on
demand.
(c) The Tenant shall permit the 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 Landlord to the Tenant
in writing, to the extent that the Tenant is responsible for the repairs
pursuant to the provisions of this Article 5.09. All repairs made by the 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 all
Municipal, Provincial and Federal regulations.
5.10 USE OF LEASED PREMISES
(a) The 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 Tenant.
(b) The 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 Tenant shall not without the prior written consent of the 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 Tenant shall submit to the Landlord detailed plans and
specifications of any such work or installation when applying for consent, and
the Landlord reserves the right to recover from the Tenant the reasonable cost
of having its architects, agents or engineers examine such plans and
specifications. The 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 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 Tenant and shall be done and supplied and paid for in the
manner and according to such teems and conditions if any, as the 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 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 Landlord.
5.12 SIGNS AND ADVERTISING
The 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 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 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 Tenant's business, and the requirements of all relevant authorities. The
Tenant shall remove the same at the expiration of the Term hereof, and make good
all damage caused by such removal.
5.13 NO NUISANCE
The 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,
business, 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.
<PAGE>
5.14 COMPLIANCE WITH LAWS
The 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 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 Tenant. In so doing,
the 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
tenants' improvements in so far as they may require changes of a structural
nature in the Building, except tenants' improvements, except that such changes
shall be made at the expense of the Tenant if they are changes or additions
required to be made in or to the 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 Tenant.
5.15 INDEMNIFICATION
The Tenant covenants with the Landlord to indemnify and save harmless the
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 Landlord, and
without limiting the generality of the foregoing, shall indemnify and save
harmless the 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 Tenant to be
fulfilled, kept, observed and performed.
(b) Any damage to property of the Tenant, any subtenant, 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 notwithstanding.
5.16 ENTRY BY LANDLORD
The Tenant shall permit the Landlord, its 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 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 Tenant's use and enjoyment of the Leased
Premises, and the 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
<PAGE>
(a) The 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 Tenant without the prior consent in
writing of the Landlord, which consent shall not be unreasonably withheld or
delayed in each instance. At the time the Tenant requests the consent of the
Landlord, the Tenant shall deliver to the 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, subtenant or occupant and forthwith upon
request such additional information, if any, as the 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 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 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 Landlord should exercise such right of
termination, then, except as hereinafter provided, the 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
Tenant hereunder shall be adjusted as at the date of termination.
(b) The 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 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
Landlord may have consented alter, release or relieve the Tenant from its
obligations fully to perform all the Tenant's covenants, conditions and
agreements of this Lease. The Tenant shall pay on demand the Landlord's
reasonable costs incurred in connection with the Tenant's request for such
consent.
(d) If the 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 Tenant shall make available to the Landlord upon its request for
inspection and copying, all books and records of the Tenant, any assignee or
subtenant and their respective shareholders which, alone or with other data, may
show the applicability or inapplicability of this section.
(e) The 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.
(f) The Tenant shall be liable for the Landlord's costs incurred in
connection with the Tenant's request for consent, including but without
limiting the generality of the i foregoing, the 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 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 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 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 tenant of premises
in the Building, and the Landlord shall not be liable to the Tenant for
violation of the same by any other 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 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
<PAGE>
5.21 FIRE AND SAFETY
The 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 tenants and occupants in the event of fire or similar event, and
the 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 Tenant shall cooperate with the Landlord in conserving energy of all types
in the Building including complying at the Tenant's own cost with all reasonable
request 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 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 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.
5.24 SURRENDER OF POSSESSION
The Tenant will, at the expiration or sooner determination of the Term,
peaceably surrender and yield up unto the 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 Tenant's obligations to repair.
ARTICLE 6
LANDLORD'S COVENANTS
--------------------
The Landlord covenants with the Tenant as follows:
6.01 QUIET ENJOYMENT
The Landlord covenants and agrees with the Tenant that upon the Tenant paying
the Rent hereby reserved within the periods limited herein for the payment
thereof, and upon the Tenant observing and performing the covenants and
agreements herein contained within the periods limited for the observance and
performance thereof, the Tenant shall and may peaceably possess and enjoy the
Leased Premises for the Term hereby granted without any interruption or
disturbance from the Landlord or any 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 normal
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 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 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 Tenant or by the Landlord on behalf of the Tenant shall be the
responsibility of the Tenant and not the Landlord.
<PAGE>
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 Tenant, its servants or employees.
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 Tenant and its employees
and those doing business with the Tenant, in common with others, provided that
the 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 Tenant or any other persons by any
elevator or any of its appurtenances.
6.06 WASHROOMS
The Landlord shall permit the 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 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 Tenant
and the employees of the Tenant and persons lawfully requiring communication
with the 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 Tenant that such
cleaning and maintenance shall be performed exclusively by the Landlord or its
contractors at the sole expense of the 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 Tenant or the agents or employees of the Tenant, if such is
obtainable at reasonable costs.
<PAGE>
ARTICLE 7
MISCELLANEOUS COVENANTS
-----------------------
It is further hereby agreed as follows:
7.01 DISTRESS
The 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 Tenant of the goods and chattels of the Tenant from the Leased
Premises, to follow and seize the same at any place to which the Tenant or any
other person may have removed them, it being expressly understood and agreed by
the Tenant that notwithstanding any statute, bylaw, regulation or order of any
authority or government having jurisdiction, none of the goods or chattels of
the 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 Tenant or on distress being made by the Landlord this
covenant and agreement may be pleaded as an estoppel against the Tenant in any
action brought to test the right to the levying upon any such goods, the 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 Tenant shall not suffer or permit any lien under the Builders Lien Actor 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 Tenant. If any such lien shall at any time be filed or
registered, the Tenant shall procure registration of a discharge within ten (10)
days after the lien has come to the notice or knowledge of the Tenant. The
Tenant shall defend on behalf of the Landlord at the 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 Tenant shall pay any damages
and satisfy and discharge any judgments entered thereon and save harmless the
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
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
Landlord by the Tenant on demand and may be recovered as rent in arrears.
Nothing herein contained shall authorize the 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 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 Tenant within thirty (30) days of the damage
or destruction notice of termination and the Tenant shall on the date specified
in that notice, which shall be within sixty (60) days after delivery of the
notice of termination, deliver up possession 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 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
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.
(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
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
Tenant within thirty (30) days of the damage or destruction notice of
termination and the 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 Tenant could occupy them for the purpose of
rebuilding, restoring, replacing or repairing the 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 Tenant shall forthwith after issuance
of the certificate proceed to rebuild, restore, replace and repair the Tenant's
improvements, in accordance with the provisions hereof.
<PAGE>
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 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 Properly or from the sprinkler, drainage or smoke
pipes or plumbing equipment therein, or from any adjacent or neighbouring 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 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 time 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 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 Tenant or the 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 easements 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
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 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 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 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 any of them used for the
purpose of heating or air conditioning or other climate control or for the
purpose of operating any 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 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 Tenant or its employees the
expense of the necessary repair shall be borne by the 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 any services to the
Leased Premises or to make any repairs not herein specifically required to be
provided or made by the Landlord.
<PAGE>
(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 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 Tenant shall fail to perform or cause to be
performed each and every one of the covenants and obligations of the 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 Tenant, and no such entry for such
purpose shall be deemed to work a forfeiture or termination of this Lease, and
the Tenant shall permit such entry. The Landlord shall give not less than seven
(7) days' notice to the 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 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 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 Tenant, and shall not incur any liability to the 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.
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 the payment of Rent and such default
shall continue for five (S) days after notice thereat given by the Landlord to
the Tenant; or
(ii) the 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 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 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 Tenant or of the Indemnifier, if any, shall be seized or taken in
execution or attachment; or
(iv) the 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 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 Tenant
or of the Indemnifier, if any; or
<PAGE>
(v) If the 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 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 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 Landlord shall have the right to terminate this Lease and the Term
forthwith by giving notice in writing addressed to the 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 Tenant. PROVIDED FURTHER, that notwithstanding such termination, the
Landlord may subsequently recover from the 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 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
Tenant, either by force or otherwise, without being liable for any prosecution
therefor and on notice to the Tenant to release or sublet as the Tenant's agent
the Leased Premises or any part or parts thereof and to receive the Rent
therefor, and as agent of the 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 heroin contained and the 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 shall nevertheless be entitled to sue for
and to recover from the 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 Tenant the difference between the amounts payable by any new Tenant of the
Leased Premises or any part or parts thereof and Rent required to be paid by the
Tenant pursuant to this Lease for the balance of the Term, notwithstanding in
either case that the Term shall not have ceased, and the Tenant agrees to pay
such amount as so determined promptly on demand.
7.09 OVERHOLDING
If, at the expiration of this Lease, the Tenant shall, without the written
consent of the Landlord, hold over for any reason the tenancy of the Tenant, the
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 Tenant 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
Tenant, stating that the Leased Premises are for lease and further provided that
the 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 Tenant to the 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 Landlord be treated as and deemed to be
Rent, in which event the Landlord will have all remedies for the collection
thereof, when in arrears, as are available to the Landlord for the collection of
Rent in arrears, and the 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 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
Landlord under this Lease.
7.13 EVIDENCE OF PAYMENTS
The Tenant shall from time to time, at the request of the Landlord, produce to
the Landlord satisfactory evidence of the due payment by the Tenant of all
payments required to be made by the Tenant under this Lease, except payments of
Rent required to be made to the Landlord.
<PAGE>
7.14 INSPECTION
Provided also that, during the Term, any person or persons may inspect the
Leased Premises and all parts thereof at al) reasonable times on producing a
written order to that effect signed by the 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.
(b) The 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 Tenant hereby constitutes the Landlord, the agent or
attorney of the 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 Tenant if requested by any mortgagee (including any trustee under or
deed of trust) shall attorn to such person as a tenant upon all the terms of
this Lease.
7.16 DIRECTORY BOARD
The Tenant shall be entitled to have its name shown upon the directory board in
the Building at the 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 tenant.
7.17 ENVIRONMENTAL LAW - HAZARDOUS WASTE
(a) Without limiting any other provision of the Lease, the 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 Tenant agrees to indemnify and hold the 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 Tenant's
(including employees, contractors and agents) failure to comply with the
foregoing sentence. The 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 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 Tenant demonstrates to the Landlord's reasonably satisfaction
that the Hazardous Substance is reasonably necessary for the Tenant's permitted
use of the Leased Premises and that it will be used, kept, stored and disposed
of in a manner that complies with all Environmental Laws regulating the
Hazardous Substance.
(c) The Tenant shall at the 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 Tenant's records of the purpose of identifying the existence,
nature and- extent of any Hazardous Substance on the Leased Premises and the
Tenant's use, storage and disposal of any Hazardous Substance, and the 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 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 Tenant to the Landlord as Additional Rent
forthwith upon demand therefor.
<PAGE>
(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 Tenant in the course of the Tenant's
business or as a result of the Tenant's use or occupancy of the Leased Premises,
then the Tenant shall at its own expense, prepare all necessary studies, plans
and proposals and submit the same for approval, provide all bone; ,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 i )m time to time of its cleanup work and comply with the
Landlord's requirements with respect to such plans.
(f) If the Tenant creates or brings to the Leased Premises any Hazardous
Substance or if the conduct of the 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 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 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 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 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 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 Tenant is then occupying the Leased Premises, the Landlord shall pay the
actual and reasonable expenses of physically moving the Tenant, its 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 "E".
ARTICLE 8
GENERAL PROVISIONS
------------------
8.01 LEASE ENTIRE AGREEMENT
The 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 Tenant and may not
be modified in any way except by subsequent agreement in writing executed by the
Landlord and the 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 Landlord, other than an express waiver in writing, shall
constitute a waiver of any rights of the Landlord, notwithstanding any
principle of law or equity. Further, no condoning, excusing or overlooking by
the Landlord of any default, breach or non-observance by the 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 Landlord
herein in respect of any such continuing or subsequent default, breach,
non-observance or Event of Default. All rights and remedies of the 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 Tenant shall not be construed as an
admission by the Landlord of any right, title or interest of such person as a
sub-tenant, assignee, transferee or otherwise in the place and stead of the
Tenant.
<PAGE>
(c) The acceptance by the 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 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 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 Tenant with respect to this
Lease including renewal costs shall be borne exclusively by the Tenant and the
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 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 Tenant, shall be sufficiently given if delivered personally to an employee
of the Tenant at the Leased Premises or if mailed by prepaid mail as follows:
Either the Landlord or the 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.
8.07 ARBITRATION
Where arbitration is called for under the terms hereof, the Landlord and the
Tenant agree to submit such matters to arbitration in the following manner:
(a) the Landlord and Tenant shall each appoint one (1) arbitrator and both
such arbitrators shall be appointed within fifteen (15) 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) slays 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 Tenant thereof;
(d) the decision of the majority of the three (3) arbitrators shall be
binding upon the Landlord and Tenant;
(e) if the Landlord or the 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 Tenant thereof, and his decision
shall be binding upon the Landlord and Tenant.
(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.
<PAGE>
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 "Tenant" shall be
deemed to include and mean each and every person or party mentioned as a Tenant
herein, be the same one or more, and if there shall be more than one 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 Tenant shall also include, where the context allows, the servants,
employees, agents, invitees and licensees of the Tenant and all others over whom
the 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.
8.11 SUCCESSOR BOUND
This Lease and everything herein contained shall enure 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 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 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 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 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 patties that the Landlord shall be fully
reimbursed by the Tenant with respect to any and all Sales Taxes payable by the
Landlord. The amount of such Sales Taxes so payable by the Tenant shall be
calculated by the Landlord in accordance with the applicable legislation and
shall be paid to the Landlord at the same time as the amounts to which such
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 time to time
determines. Notwithstanding any other provision in this Lease to the contrary,
the amount payable by the 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.
<PAGE>
8.16 SURVIVAL OF OFFER TO LEASE
The provisions of the Offer to Lease dated November 16, 1999 between the
Landlord and the Tenant shall survive the execution of this lease. 1n the event
of any conflict between the provisions of the Offer to Lease and the provisions
of this Lease, provisions of the Offer to Lease shall prevail.
IN WITNESS WHEREOF the parties hereto have executed this Lease.
Signed Sealed & Delivered by )
SHAMSAN DEVELOPMENTS LTD )
in the presence of ) )
)
)
________________________________ )
Witness )
)
)
________________________________ )
Address )
)
________________________________ )
________________________________
Occupation /s/
------------------------------
Per: Shamsan Developments Ltd.
Signed Sealed & Delivered by
ALTTECH VENTURES CORPORATION
in the presence of
/s/ Andrea Taggart
--------------------------------
Name
C/S
6455 Windsor Street /s/ E. MacQueen
-------------------------------- --------------------------------
Address Authorized Signatory
Vancouver, B.C.
-------------------------------- --------------------------------
Authorized Signatory
Business Woman
--------------------------------
Occupation
<PAGE>
SCHEDULE "A"
TO A LEASE BETWEEN SHAMSAN DEVELOPMENTS LTD AND ALL
TECH VENTURES CORPORATION
1. "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.
<PAGE>
SCHEDULE "B"
"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
[Floor Plan]
<PAGE>
SCHEDULE "C"
RULES AND REGULATIONS
1. The 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 Tenant, his agents, servants, contractors, invitees
or employees for any purpose other than ingress to and egress from the Leased
Premises.
3. The 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 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 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 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 Tenant by whom or by whose agents, servants,
or employees the same is caused. 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 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 tenants of the Building shall be permitted.
10. The Landlord will have the care of all heating and air-conditioning
apparatus.
11. The Tenant, when closing the Leased Premises day or evening, shall close
and lock all doors and windows.
12. The 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 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.
14. The 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 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 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 Tenant
shall not interfere with or obstruct any perimeter heating, air conditioning or
ventilating units.
18. The Tenant shall take care of the rugs and drapes (if any) which it
installs in the Building and shall arrange for the 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.
<PAGE>
SCHEDULE "D"
SPECIAL PROVISIONS
1. RENTAL ABATEMENT
The Tenant shall have a Free Gross Rent period during the first One (1) months
from the Commencement Date. During this period, the Tenant shall not be
responsible for any basic net rent or Operating Costs and Property Taxes but
shall abide by all other terms of this Lease.
2. LANDLORDS WORK
The Landlord shall, at its cost, paint the entire Premises, colour to be
selected by the Tenant .
3. BUILDING DIRECTORY SIGNAGE
The Tenant shall be entitled to one (1) entry to the Building directory. If
space permits, all of the members of the Tenant's professional staff shall be
separately listed.
4. PARKING
The Landlord shall provide, at the Tenant's cost, up to one (1) random or
reserved parking stall in the Building at the prevailing market rates, and one
(1) reserved parking stall on a month to month basis. The Tenant shall specify
the number of parking stalls it requires prior to the Commencement Date. The
rental rates for stalls is subject to adjustment to comparable parking rates in
the area.
<PAGE>
