EXHIBIT 10.26
S U B L E A S E
THIS INDENTURE OF LEASE made this 1st day of January, A.D. 1999, at the Town of
Banff, in the Province of Alberta.
PURSUANT TO THE LAND TRANSFER FORM ACT, PART 2.
BETWEEN:
XXXXXXXX TRANSPORT COMPANY LIMITED, a company duly incorporated under
the laws of Alberta, having its head office at 000 Xxxxxx Xxxxxx, X.X.
Xxx 0000, Xxxxx, Xxxxxxx, TOL OCO
(hereinafter called the "Sub-Landlord")
OF THE FIRST PART
-AND-
SIMBA TECHNOLOGIES INCORPORATED, a company duly incorporated under the
laws of British Columbia and carrying on business at Xxxxx 000, 000
Xxxxxxxx Xxxxxx, in the City of Vancouver, in the Province of British
Columbia
(hereinafter called the "Sub-Tenant")
OF THE SECOND PART
WHEREAS by a Lease dated the 1st day of November, A.D. 1995, made between
YONGE WELLINGTON PROPERTY LIMITED as Landlord and XXXXXXXX TRANSPORT COMPANY
LIMITED as Tenant, the said Landlord did lease to said Tenant, premises
comprising the 6th floor of a building located at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, as identified in Schedule "A" of said Lease;
AND WHEREAS in consideration of the rents herein reserved and subject to
the terms, covenants, conditions and agreements hereinafter contained, the
Sub-Landlord agrees to Sub-Lease to the Sub-Tenant that portion of the 6th floor
of the building located on the 6th floor, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, outlined in red on a plan attached hereto as Schedule "A" and
forming a part hereof, hereinafter referred to as the "demised premises".
The Sub-Landlord does hereby sub-let to the Sub-Tenant herein the demised
premises, comprising approximately FOUR THOUSAND NINE HUNDRED SEVENTY-TWO
(4,972) square feet, shown outlined in red on the attached Schedule "A" to be
held by the Sub-Tenant for a term of ONE (1) YEAR AND TEN (10) MONTHS from the
commencement of said term as hereinafter provided, at an annual base rent of
FORTY-FOUR THOUSAND SEVEN HUNDRED FORTY-EIGHT ($44,748.00) DOLLARS, to be
payable in equal monthly instalments of THREE THOUSAND SEVEN HUNDRED TWENTY-NINE
($3,729.00) DOLLARS plus GST, on the first day of each and every calendar month
for the duration of the said term, commencing as hereinafter provided, and
subject to the covenants and powers implied and to the conditions, restrictions
and covenants hereinafter provided, reserved and contained as follows:
1. COMMENCEMENT AND TERM
To have and hold the demised premises for and during the said term as
hereinafter provided from the 1st day of January, 1999 to the 31st day of
October, 2000.
The Sub-Landlord acknowledges that the Sub-Tenant may occupy the demised
premises free of base rent and additional costs until such time as the
Sub-Landlord has completed the work as outlined in the attached Schedule "B",
forming a part of this agreement. The Sub-Landlord and the Sub-Tenant agree that
while the Sub-Tenant's obligation to pay rent is determined by the provisions of
this clause 1, the Sub-Tenant's occupancy of the demised premises prior to the
payment of base rent and additional costs in all other respects be subject to
the conditions, restrictions and covenants implied and contained herein.
2. DEPOSIT
The Sub-Tenant agrees to provide to the Sub-Landlord a deposit equivalent to two
(2) months base rent and additional costs plus GST, which deposit shall be
applied to the first and the last month's base rent and additional costs due.
3. ADDITIONAL COSTS
The Sub-Landlord and Sub-Tenant agree that the monthly installments paid to the
Sub-Landlord shall include the Sub-Tenant's contribution to additional rent
hereunder during the term of this Sub-Lease and shall include the real estate
taxes and operating expenses, as the same are identified in the Lease dated
November 1st, 1995, between Yonge Wellington Property Limited as Landlord and
Xxxxxxxx Transport Company Limited as Tenant (the "Head Lease").
The Sub-Landlord and the Sub-Tenant agree that the Sub-Tenant's proportionate
share of additional costs and operating costs shall be Forty-Four point Six Four
(44.64%) per cent of the Sub-Landlord's proportionate share of said additional
costs, which calculation is based on the ratio of the area of the demised
premises to the total leasable area leased by the Sub-Landlord from Yonge
Wellington Property Limited.
The Sub-Tenant will pay all business taxes and all floor space or personal
property taxes, rates, charges, and license fees assessed or imposed from time
to time in respect of its occupancy and use of the demised premises, together
with any goods and services tax or general sales tax which may now or in the
future be imposed, as well as all telephone, electrical power and natural gas
charges separately metered to the demised premises, as and when they become due
and payable.
4. PAYMENT OF RENT
The Sub-Tenant will pay the rent as herein set forth, together with such amounts
as may be by virtue of this Sub-Lease treated as rent or additional costs, or
amounts payable by the Sub-Tenant to the Sub-Landlord, at the times herein
mentioned, at the Sub-Landlord's office in Vancouver, British Columbia, without
any deduction or right of set off whatsoever.
2
The Sub-Tenant agrees that in the event the Sub-Tenant shall default in payment
of rent or in payment of any sums required to be paid by it under this
Sub-Lease, the Sub-Landlord may pay the same and the amount thereof and all
costs paid by the Sub-Landlord as between solicitor and client on account of any
such default by the Sub-Tenant under this Sub-Lease, shall be payable by the
Sub-Tenant to the Sub-Landlord forthwith without demand or notice to the
Sub-Tenant made or given therefore. The Sub-Tenant shall pay to the Sub-Landlord
interest at one and one-half percent (1 1/2%) per month, that is to say,
eighteen per cent (18%) per annum on all overdue payments required to be made by
the Sub-Tenant under any one or more of the provisions of this Sub-Lease, which
are overdue.
5. USE
The Sub-Tenant will not carry on or permit upon the demised premises any
offensive, noisy or dangerous trade, business, manufacture or occupation, or any
nuisance which may be offensive or annoying to the Sub-Landlord or to any other
tenant of the building, or by which the insurance rates on the demised premises
or the building of which they are a part, shall be increased, and the Sub-Tenant
will occupy the demised premises for use only as business offices for the
business of the Sub-Tenant and such further lawful use as the Sub-Tenant may
desire and the Sub-Landlord and the Head Lessor consent to in writing.
6. COMPLIANCE WITH HEAD LEASE
The Sub-Tenant covenants that the Sub-Tenant is acquainted with the provisions
of the aforesaid Head Lease, and agrees to comply with the terms of these deeds,
insofar as the same may be applicable, with the exception of base rent and
additional costs, which obligations of the Sub-Tenant are set out in this
Sub-Lease.
7. ACCEPTANCE OF PREMISES
The Sub-Tenant, by its occupation of the demised premises, shall be deemed to
have examined and accepted the demised premises in their existing condition
before taking possession, and such taking of possession shall be conclusive
evidence against the Sub-Tenant that at the time thereof, the demised premises
were in good order and satisfactory condition. All existing fixtures and
improvements located in the demised premises shall remain therein for the
exclusive use of the Sub-Tenant during the term of this Sub-Lease.
8. MAINTENANCE
The Sub-Tenant will at all times during the continuance of this Sub-Lease keep,
and at the expiration or sooner determination of the term hereby granted,
deliver up to the Sub-Landlord the demised premises, together with all fixtures
and additions thereto, save the Sub-Tenant's trade fixtures, in a good and
tenantable state of cleanliness and repair, [normal wear and tear excepted]
[preceding bracketed language handwritten and initialed in original]; accidents
and damage to the building through fire, xxxxx, xxxxxxx or other cause beyond
the reasonable control of the Sub-Tenant, only excepted.
3
9. MISUSE
The Sub-Tenant shall make good any and all damage caused by the misuse of the
heating, plumbing, gas piping, electrical or telephone wiring and other fixtures
in the demised premises (including board room furniture and work stations), by
the Sub-Tenant, its servants or agents, or other persons who may be invited by
the Sub-Tenant to enter the demised premises.
10. FURNITURE
The Sub-Tenant shall have exclusive use of SMED work stations, deemed available
for rent by the Sub-Landlord throughout the term of this Sub-Lease at a cost of
SEVENTY-FIVE ($75.00) DOLLARS per work station per month plus GST.
The Sub-Tenant shall also have exclusive use of the board room furniture
presently located in the demised premises at a cost of ONE HUNDRED ($100.00)
DOLLARS per month plus GST.
The Sub-Landlord and the Sub-Tenant agree that whatever office furniture is left
by the Sub-Landlord in the demised premises, over and above the items referred
to in the above two paragraphs, may be used by the Sub-Tenant on a rent-free
basis throughout the term of this Sub-Lease.
11. MAINTENANCE OF SYSTEMS
The Sub-Tenant will maintain the plumbing, electrical and heating systems
located within the demised premises in good repair, and in the event of damage
or defect in such systems, the Sub-Tenant will remedy the same and make good the
damage forthwith and in the case of failure of the Sub-Tenant to do so
immediately, the Sub-Landlord shall have the right to have the the work done and
to add the cost thereof to the rent next occurring due and to distrain for and
collect the same as and for increased rent.
12. NOTICE OF DEFECT
The Sub-Tenant will give to the Sub-Landlord prompt written notice of any
accident or defect of which the Sub-Tenant is aware, in the demised premises'
structure, plumbing, electrical, mechanical and heating systems, and shall
permit the Sub-Landlord, its agents and servants to enter the demised premises
to maintain, replace or repair the same.
13. SUB-TENANT'S ALTERATIONS
The Sub-Tenant shall make no alterations, renovations or additions to the
demised premises without first having submitted plans and specifications thereof
to the Landlord and the Sub-Landlord, and obtaining the their consents in
writing. The Sub-Tenant shall have the option of tendering the work to be
performed by outside contractors, subject to the approval of such contractors by
the Landlord and the Sub-Landlord, or the Sub-Tenant may retain the services of
the Landlord to perform the leasehold improvements. All work completed shall
conform to the plans and specifications which have been approved by the Landlord
and the Sub-Landlord and shall be completed in a good and workmanlike manner.
4
At the end or sooner determination of the said term, such alterations and
additions shall become the property of the Sub-Landlord, or the if the
Sub-Landlord shall so notify the Sub-Tenant in writing, such alterations and
additions shall be removed by the Sub-Tenant at the Sub-Tenant's cost, and the
demised premises repaired and restored to such state and condition as before the
making of such alterations and additions.
14. FIXTURES
Notwithstanding anything herein contained, the Sub-Tenant may install its usual
trade fixtures in the usual manner, provided that such installation does not
damage the demised premises, and, provided the Sub-Tenant has paid the rent
hereby reserved and performed and observed all the covenants and conditions
herein contained, the Sub-Tenant shall at the expiration or sooner determination
of this Sub-Lease, have the right to remove such trade fixtures, but shall make
good the damage caused to the demised premises which may result from such
installation and removal.
15. SIGNS
The Sub-Tenant shall not inscribe or affix any sign, lettering, or design
outside the demised premises without the written consent of the Sub-Landlord,
which consent shall not be unreasonably withheld.
16. VIEW, REPAIR AND ACCESS TO Sub-Landlord
The Sub-Landlord, its servants and agents, shall at all reasonable times have
access to the demised premises and in particular, the Sub-Tenant shall at all
reasonable times permit the Sub-Landlord, its servants and agents, to enter upon
the demised premises and view the state of repair and condition thereof and the
Sub-Landlord may serve upon the Sub-Tenant notice in writing of any defect
requiring the Sub-Tenant, within a reasonable time, to repair the same and the
Sub-Tenant shall repair according to such notice. [In the event of an emergency,
the Sub-Tenant shall be granted access to the computer server room located on
the same floor as the demised premises.] [Preceding bracketed language is
handwritten and initialed in original.]
17. ADVERTISEMENT
The Sub-Tenant will, [during the term of this Sub-Lease, permit the
Sub-Landlord, its servants and agents to place upon any part of the demised
premises a note offering the same for Sub-Lease, and will] [preceding bracketed
language struck out and initialed in original] during the two (2) calendar
months immediately preceding the termination of this Sub-Lease Agreement, permit
the Sub-Landlord, its servants or agents, to place upon any part of the said
premises a notice [of reasonable size] [preceding bracketed language handwritten
and initialed in original] offering the same for rent, and the Sub-Tenant will,
during [the said period] [preceding bracketed language handwritten and initialed
in original] [the term of this agreement] [preceding bracketed language struck
out and initialed in original], permit prospective lessees, on authority of the
Sub-Landlord or its agents, at reasonable times, to inspect the demised
premises.
5
18. ASSIGNMENT
The Sub-Tenant will not assign or sublet the demised premises, without the
consent of the Sub-Landlord first had and obtained (such consent not to be
unreasonably withheld, and to be governed by the same provisions as are found in
Clause 5.10 of the Head Lease), provided always that such assignment or transfer
shall not release or relieve the Sub-Tenant or any guarantors of the
Sub-Tenant's covenants herein contained from any and all of the Sub-Tenant's
obligations herein; and provided further that any such consent to assignment
shall not be deemed consent to any further or subsequent assignment.
19. CHANGE OF CONTROL
[The Sub-Tenant will not permit the effective management or control of the
business conducted on the premises to b changed at any time during the term or
renewal hereof, whether by assignment, transfer of shares or otherwise without
the written consent of the Sub-Landlord first had and obtained, (which consent
shall not be unreasonably withheld); provided that such consent shall not be
deemed consent to any further or subsequent change of management or control.)]
[preceding bracketed language struck out and initialed in original]
[The Sub-Tenant shall provide written notices to the Sub-Landlord if the
effective management or control of the business is changed at any time during
the term or renewal hereof, whether by assignment, transfer of shares or
otherwise.] [preceding bracketed language handwritten and initialed in original]
20. SEPARATE UTILITIES
The Sub-Tenant will during the whole of this term hereby granted, pay and
discharge as they fall due all charges for power and natural gas (to the extent
that the same are separately metered to the demised premises), telephone and
janitorial services used within the demised premises. The Sub-Tenant will
provide all cleaning and caretaking services required to be done on the demised
premises and will provide janitorial services at the Sub-Tenant's own cost.
21. LIABILITY ON VACANCY
If the Sub-Tenant vacates or abandons the demised premises during the term
hereof, the Sub-Tenant will be responsible for and liable for any damage that
may occur to the demised premises to the same extent as if the vacancy had not
occurred.
22. INDEMNITY
The Sub-Tenant will indemnify and save harmless the Sub-Landlord of and from all
loss and damage, and from all fines, costs, suits, claims, demands and actions
of every kind and nature for which the Sub-Landlord shall or may become liable,
incur or suffer by reason [of the Sub-Tenant negligence or breach of contract].
[preceding bracketed language handwritten and initialed in original] [or any
breach, violation or non-performance by the Sub-Tenant of any covenant, term or
provision hereof, or by reason of any Builders' Lien, or any work done or
material provided or service rendered for improvements, alterations or repairs
made by the Sub-Tenant to the demised premises, or by reason of any injury
occasioned to or suffered by any person, or by reason of any damage to property
due to any wrongful act, neglect or default on the part of the Sub-Tenant, its
servants, agents, customers or invitees, or by reason of the Sub-Tenant's
occupancy of the demised premises howsoever.] [preceding bracketed language
struck out and initialed in original]
The Sub-Tenant will, forthwith upon demand of the Sub-Landlord, remove or
contest (and institute and diligently prosecute any action pertinent thereto)
any Builders' or other liens aforesaid, resulting from the Sub-Tenant's
occupation of the demised premises, and noted or
6
filed against or otherwise constituting an encumbrance on the title of the
Sub-landlord to the said lands.
23. NON-LIABILITY OF SUB-LANDLORD
The Sub-Landlord shall not be liable for any injury or damage to any person or
property in, on, or about the demised premises, or any loss of or damage to any
property caused by theft, breakage, or otherwise howsoever, or by stream, water,
rain, or snow, which may leak into, issue or flow from any other part of the
said lands or any adjacent or neighbouring lands, to the demised premises, or
for any damage caused by or attributable to the condition or arrangement of any
electrical or other wiring, except as caused by the Sub-Landlord, its servants
or agents. The Sub-Tenant covenants to indemnify the Sub-Landlord of and from
all loss, claims or demands in respect of any injuries or damages referred to in
this paragraph [resulting from the negligence of the Sub-Tenant] [preceding
bracketed language handwritten and initialed in original]. [provided that the
Sub-Tenant shall not be required pursuant to the terms of this paragraph to
indemnify the Sub-Landlord to the extent that the Sub-Landlord's loss, cost,
claims or demands are in respect of injuries or damage due to the negligence of
the Sub-Landlord, its servants or agents] [preceding bracketed language struck
out and initialed in original] In case the heating apparatus and pipes connected
therewith, is, or are, injured or destroyed by frost, accident, oversight or the
negligence or unskillfulness of the Sub-landlord, its servants or agents, the
Sub-Landlord will repair or replace the same with reasonable dispatch having
reference to the season in which such injury happens other than where such
damage is caused by the Sub-Tenant or the Sub-Tenant's servants or agents; but
the Sub-Landlord will not be responsible for any inconvenience or loss or damage
in respect thereof, sustained by the Sub-Tenant or any person claiming under the
Sub-Tenant. Nor will the Sub-Landlord be responsible for any inconvenience, loss
or damage sustained by the Sub-Tenant in the event of the failure of any power
company or gas company to furnish a supply of electrical current or fuel for the
use of the building located on the said lands, or by reason of the wiring or
apparatus in the building becoming out of order, or for any inconvenience, loss
or destruction of, or failure to work, of any water, drainage or waste pipes in
the building located on the said lands. Nor will the Sub-Landlord be responsible
or liable for any consequential inconvenience, loss or damage caused by water or
snow from the roof of the building or caused by any act, matter or thing done or
suffered to be done by any person except where due to the negligence of the
Sub-Landlord, its servants or agents.
24. SUB-TENANT'S INSURANCE
The Sub-Tenant shall, during the entire term hereof, at its sole cost and
expense, take out and keep in full force and effect the following insurance:
a) Insurance upon property of every description and kind owned by the
Sub-Tenant, in the custody and control of the Sub-Tenant, or for which
the Sub-Tenant is legally responsible, is legally liable or installed
by or on behalf of the Sub-Tenant, and which is located within the
demised premises, including without limitation fittings,
installations, alterations, additions, partitions, fixtures and
anything in the nature of a leasehold improvement, for full
replacement cost thereof, with coverage against at least the perils of
fire and standard extended coverage including sprinkler leakages
(where applicable), earthquake, flood and collapse, naming Landlord,
Landlord's Mortgagees as loss payable as their interests may appear
and Sub-Landlord;
7
b) Public liability and property damage insurance including personal
injury liability, contractual liability, non-owned automobile
liability with respect to the demised premises and the Sub-Tenant's
use of any part of the building in which coverage shall include the
activities and operations conducted by Sub-Tenant and any other person
in the demised premises. Such policies shall be written on a
comprehensive basis with limits of not less than FIVE MILLION
($5,000,000.00) DOLLARS for bodily injury to any one or more persons,
or property damages, and such higher limits as the Landlord, the
Mortgagee of the Landlord or the Sub-Landlord may reasonably require
from time to time, and all such policies shall contain a severability
of interest clause;
c) Sub-Tenant's legal liability insurance for the full replacement cost
of the demised premises; coverage to include the activities and
operations and conducted by the Sub-Tenant and any other persons on
the demised premises.
All policies shall be taken out with insurers acceptable to the
Landlord and the Sub-Landlord in a form satisfactory from time to time
to the Landlord and the Sub-Landlord. The Sub-Tenant agrees that
Certificates of Insurance will be delivered to the Landlord and the
Sub-Landlord as soon as practicable after the placing of the required
insurance coverage prior to any material change, cancellation or other
termination thereof.
The Sub-Tenant covenants and agrees that upon written notice from the
Sub-Landlord, the Sub-Tenant will pay the cost of replacing any
damaged plate or other glass in the windows and doors of the demised
premises, and will repair damages to the demised premises resulting
from burglary or attempt thereat.
25. QUIET ENJOYMENT
The Sub-Landlord covenants with the Sub-Tenant that upon the Sub-Tenant paying
the rent hereby reserved at the times and in the manner aforesaid, and observing
and performing each and every of the covenants, conditions, restrictions and
stipulations by the Sub-Tenant to be observed or performed, the Sub-Tenant shall
and may peaceably and quietly possess and enjoy the demised premises during the
said term without interruption from or by the Sub-Landlord, or any person
lawfully claiming by, through or under the Sub-Landlord.
26. SUBORDINATION OF SUB-LEASE
This Sub-Lease is subject and subordinate to all ground or underlying Leases and
to all mortgages including any deed of trust and mortgages securing bonds and
all indentures supplemental thereto which may now or hereafter affect such
Leases and the parcel of land constituted thereby, and to all renewals,
modifications, consolidations, replacements and extensions thereof. The
Sub-Tenant agrees to execute promptly any certification in confirmation of such
subordination as the Landlord or the Sub-Landlord may request and hereby
constitutes the Landlord and the Sub-Landlord, the Agent or Attorney of the
Sub-Tenant, for the purpose of executing any such certificate and of making
application at any time, and from time to time, to registered postponements of
this Sub-Lease in favour of any such Mortgage to give effect to the foregoing
provisions of this clause.
8
27. DAMAGE OR DESTRUCTION
If, during the term of this Sub-Lease, the demised premises or any part thereof,
or the means of ingress and egress to and from the demised premises shall be
destroyed or damaged by fire, lightening, tempest, explosion, flooding,
earthquake or from any other disaster, act of God or the Queen's enemies, riots,
insurrection or structural defects or collapse, the following provisions shall
have effect:
a) if the demised premises are rendered partially unfit for occupancy by
the Sub-Tenant, the rent hereby reserved shall xxxxx, in part only, in the
proportion that the part of the demised premises rendered unfit for occupancy by
the Sub-Tenant bears to the whole of the demised premises, or if the demised
premises are rendered wholly unfit for occupancy by the Sub-Tenant the said rent
shall be suspended until the demised premises have been rebuilt, repaired or
restored;
b) in the event of substantial destruction of the demised premises or the
means of ingress or egress to and from the demised premise, the Sub-Tenant or
Sub-Landlord may, within 120 days after such destruction, and upon giving notice
to the other party, declare this Sub-Lease terminated forthwith, and in such
event the rents payable hereunder, including any additional rents shall be
apportioned and be payable up to the time of such destruction and the Sub-Tenant
shall be entitled to reimbursement for any rents including any additional rents
or charges paid for any period beyond the date of termination.
The expression "substantial destruction" shall mean such damage as, in the
opinion of the architect or engineer retained by the Sub-Landlord requires
substantial alteration or reconstruction of the demised premises or the means of
ingress or egress thereto and therefrom, or such damage to the demised premises
or means of ingress or egress as, in the opinion of the said architect or
engineer, cannot be repaired within 6 months from the time of such damage. All
provisions of this or any other paragraph with respect to damage or destruction
may be made the subject and subordinate to the requirements of any registered
mortgage, or debenture holder of Sub-Landlord.
28. EXPROPRIATION OR CONDEMNATION
If, during the term hereby granted or any renewal thereof, the demised premises
or the means of ingress or egress thereto and therefrom shall be expropriated,
taken or condemned (all of which is hereinafter called "expropriation") by any
competent authority for any use or purpose, resulting in total or substantial
destruction, then this Sub-Lease shall terminate as at the date such
expropriation, which date shall be the date of vesting of title in the
expropriating authority or the commencement of demolition, whichever shall first
occur, and the rent including any additional rent payable by the Sub-Tenant
shall be apportioned, and be paid by the Sub-Tenant to the date thereof. In such
event, the Sub-Landlord and the Sub-Tenant shall each be entitled to receive
from the award or compensation for the demised premises the value of their
respective interest therein.
9
29. PERFORMANCE OF SUB-TENANT'S COVENANTS BY SUB-LANDLORD
If the Sub-Tenant fails to perform any of the covenants or obligations of the
Sub-Tenant under or in respect of this Sub-Lease, the Sub-Landlord may from time
to time, in its discretion, perform or cause to be performed any of such
covenants or obligations, or any part thereof, and for such purposes may do such
things as may be requisite, including, without limiting the foregoing, enter
upon the demised premises and do such things on or in respect of the demised
premises or any part thereof as the Sub-Landlord may consider requisite or
necessary. All expenses incurred and expenditures made by or on behalf of the
Sub-Landlord under this paragraph shall forthwith be paid by the Sub-Tenant and
shall be treated as rent, and if not paid on demand, the Sub-Landlord shall be
entitled to distrain as for rent in arrears in addition to such remedies as may
be available.
30. DEFAULT
The Sub-Tenant hereby expressly agrees that if default of more than 15 days is
made in payment of the rent hereby reserved, or if the term hereby granted or
any of the goods or chattels in the demised premises shall at any time be
seized, or taken in execution or attached by any creditor of the said
Sub-Tenant, or shall be seized or distrained for taxes or under a Xxxx of Sale,
chattel mortgage or conditional sales agreement, or if the said Sub-Tenant shall
make any assignment for the benefit of creditors, or, becoming bankrupt or
insolvent, shall not observe, perform and keep all and every of the covenants,
provisions, stipulations and conditions herein contained, or if at any time
during the tenancy hereby created, the said Sub-Tenant or any other person shall
remove or attempt to remove any goods or chattels from off the said demised
premises other than in the ordinary course of trade, without the consent in
writing of the Sub-Landlord first had and obtained, or in case the demised
premises shall be used for any purpose other than as herein provided without the
written consent of the Sub-Landlord, then a sum equivalent to 3 months' rent
hereunder shall immediately become due and owing as though due and payable by
lapse of time, and this Sub-Lease shall at the option of the said said
Sub-Landlord cease and be void, and the term hereby granted expire and be at an
end, anything herein contained to the contrary notwithstanding, and the said
Sub-Landlord shall have the right to distrain for such rent' and the payment of
such rent shall not give the Sub-Tenant the right to continued occupancy of the
premises and the Sub-Landlord may without notice or any form of legal process,
forthwith re-enter upon and retake possession of the said premises and remove
the Sub-Tenant's efforts therefrom. If the Sub-Tenant shall abandon the said
premises or leave them vacant for a period of 10 consecutive days without the
consent of the Sub-Landlord, such consent not to be unreasonably withheld, the
same may relet by the Sub-Landlord for such rent and upon such terms as the said
Sub-Landlord may see fit; and if a sufficient sum shall not be thus realized,
after paying expenses of such reletting and collecting, to satisfy the rent
hereby reserved, the Sub-Tenant agrees to satisfy and pay all deficiencies; and
these covenants are express conditions of this demise. Provided however that
this clause will not relieve the Sub-Landlord of the duty to mitigate its
damage.
[30.1 see rider][preceding bracketed language handwritten and initialed in
original]
[30.1 Notwithstanding the foregoing in paragraphs 29 and 30, the Sub-landlord
shall, prior to taking the actions described in these paragraphs, provide the
Sub-Tenant with written notice of such defaults and shall provide the Sub-Tenant
with thirty days after receipt of such notice to cure a non-monetary default.]
[Rider attached as separate page, which is initialed.]
31. DISTRESS
The Sub-Tenant hereby covenants and agrees with the Sub-Landlord that in
consideration of the premises and of the leasing and letting by the said
Sub-Landlord to the said Sub-Tenant of the demised premises for the term hereby
created, but notwithstanding any law or statute to the contrary, none of the
goods or chattels of the Sub-Tenant at any time during the continuance of the
term hereby created on the demised premises shall be exempt from levy by
distress for
10
rent arrears; and that any claim being made for such exemption by the Sub-Tenant
or on distress being made by the Sub-Landlord, this covenant and agreement may
be pleaded as an estoppel against the said Sub-Tenant and any action brought to
test the right to the levying upon any such goods as are named exempted in any
law of British Columbia, provided further that in the case of removal by the
said Sub-Tenant of the goods and chattels of the Sub-Tenant from the premises,
the Sub-Landlord may follow the same for the purpose of levying by distress for
rent in arrears.
32. SEVERABILITY OF PROVISIONS
If any term or provision of this Sub-Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Sub-Lease, or the applications of such term or provisions to
persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Sub-lease shall be valid and be enforced to the fullest extent permitted by
law.
33. OVERHOLDING SUB-TENANT
In the event of the Sub-Tenant holding over beyond the term hereby granted with
or without the consent of the Sub-Landlord and without any further written
agreement, the tenancy resulting shall be a monthly tenancy only, at a monthly
rental calculation on the basis of the annual rental as hereinbefore provided,
and subject to termination at the election of the Lessor or the Lessee on one
month's notice in writing, and subject also to the covenants, restrictions and
conditions herein set forth so far as the same are applicable to a tenancy from
month to month, it being understood that the acceptance of rent or additional
rent or any implied condition shall in no way renew this Sub-Lease as a yearly
tenancy.
34. GENERAL COVENANTS
Time shall be of the essence hereof.
Whenever the singular and masculine are used throughout this Sub-Lease they
shall be construed as if the plural and feminine had been used, where the
context shall require, and the text shall be construed as if the necessary
grammatical and terminological changes thereby rendered necessary had been made.
These presents and everything herein contained shall extend to, enure to the
benefit of, and be binding upon the Sub-Landlord, its successors and assigns,
and upon the Sub-Tenant, its heirs, personal representatives, administrators,
successors and assigns.
Any notice to be given to the Sub-Tenant pursuant to the provisions of this
Sub-Lease may be served personally on the Sub-Tenant or by leaving the same at
the demised premises or by sending the same by prepaid Registered Mail in an
envelope addressed to the Sub-Tenant as follows:
SIMBA TECHNOLOGIES INCORPORATED
c/o Xxxxxx Xxx, Controller
Xxxxx 000, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0 [Initialed]
11
Any notice to be given to the Sub-Landlord pursuant to the provisions of this
Sub-Lease may be served personally upon the Sub-Landlord or by sending the same
by prepaid Registered Mail in an envelope addressed to the Sub-Landlord as
follows:
XXXXXXXX TRANSPORT COMPANY LIMITED
Xxxxx 000, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0 [Initialed]
Such notice, if sent by mail, shall be deemed to have been served on the
addressee on the third business day following that on which it is mailed in any
Post Office in Canada. The Sub-Tenant and the Sub-Landlord may change their
addresses for service from time to time by notice served as above set out.
35. ACCEPTANCE
The Sub-Tenant, SIMBA TECHNOLOGIES INCORPORATED, does hereby accept this
Sub-Lease of the demised premises to be held by it as tenant and subject to the
conditions, restrictions and covenants above set forth.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
under their respective seals as of the day and year first above written.
XXXXXXXX TRANSPORT COMPANY LIMITED
Per: /s/ [Illegible]
-----------------------
Per: /s/ [Illegible]
-----------------------
(c/s)
SIMBA TECHNOLOGIES INCORPORATED
Per: /s/ [Illegible]
-------------------------
Per: /s/ [Illegible]
-------------------------
(c/s)
12
SCHEDULE B
(Sub-Landlord's Work)
The Sub-Landlord shall, at its sole expense:
1) construct and finish the demising walls or doors as necessary to adequately
separate the demised premises from the remainder of the 6th Floor premises,
000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, in accordance with the
plan attached to "Offer to Sublease" as Schedule "A", and forming a part
hereof, in a manner consistent with any municipal or other governmental
regulations which may be applicable; and
2. clean, and if necessary, paint the "smoking room" such that it no longer
has an odour.
This is a Lease Amendment Agreement dated for reference September 16, 1997
attached to and forming part of the Lease between:
YONGE WELLINGTON PROPERTY LIMITED, a company duly registered under the laws of
the Province of British Columbia, with an Office in the City of Vancouver, in
the Province of British Columbia, and subsequently assigned to DUNSMUIR & HORNBY
LTD., as of April 24, 1997 (hereinafter called "the Landlord")
Of the First Part
-and-
SIMBA TECHNOLOGIES INCORPORATED corporation pursuant to the laws of the Province
of British Columbia with an office in the City of Vancouver, in the Province of
British Columbia; (hereinafter called "the Tenant")
Of The Second part
WHEREAS by a Lease dated the 3rd day of June, 1996 (hereinafter
referred to as "the Lease"), the Landlord agreed to lease to Simba Technologies
Incorporated, certain premises having an area of 11,139 square feet more or less
on the 4th floor of the Development municipally known as 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, which premises are more particularly described in
said Lease.
AND WHEREAS the Tenant has requested that changes be made to the leased
premises and the Lease be amended.
NOW THEREFORE this Lease Amendment Agreement witnesses that in
consideration of the mutual covenants hereinafter contained, the parties hereto
covenant and agree with each other that the said Lease is hereby amended
effective September 16, 1997 as follows:
1) By deleting Section #4 - "Parking" of the Schedule "C" Additional
Covenants of the Lease Agreement, dated the 3rd day of June, 1996.
2) By deleting section 4.00 in its' entirety and inserting the following
section:
4.01.0 "Basic Rent"
The Tenant shall pay to the Landlord as annual rental for the Leased
Premises yearly and every year during the Term, without any deduction,
abatement, set-off or compensation whatsoever, the sum of
Annual Rent Monthly Rent
October 1997 to September 1999 $95,552.00 $7,796.00
October, 1999 to January, 2002 $99,121.56 $8,260.13
to be paid on the first day of each month and every calendar year of the Term.
EXCEPT as hereby expressly modified, and amended, the said Lease is in all
respects ratified and confirmed and the terms, conditions and covenants shall
remain in full force and effect.
WITNESS WHEREOF the parties hereto have executed this Lease Amendment
Agreement, in Vancouver, British Columbia this ___ day of September, 1997.
The Common Seal of
DUNSMUIR & HORNBY LTD.
is affixed hereto
/s/ [Illegible]
---------------
Title Asset Manager
---------------------
Authorized Signatory
Signed, Sealed and Delivered by
SIMBA TECHNOLOGIES INCORPORATED
/s/ [Illegible]
----------------------------
Title /s/ Controller
-----------------------
Authorized Signatory