EXHIBIT 4.6
-----------
SUBLEASE AGREEMENT
THIS SUBLEASE is dated the 5th day of March, 2004.
AMONG:
ONTREA INC., BY ITS DULY AUTHORIZED AGENT
CADILLAC VAIRVIEW MANAGEMENT SERVICES INC.
(the "Landlord")
OF THE FIRST PART
- and -
FORBES TRAVEL INTERNATIONAL LTD.
(the "Tenant")
OF THE SECOND PART
- and -
TLC VENTURES CORP.
(the "Sub-Tenant")
OF THE THIRD PART
WHEREAS:
A. By a lease dated the 26th day of August, 2002, and made between the Landlord
and the Tenant (the "Lease"), the Landlord leased to the Tenant for and during a
term of five (5) years, from and including the 1st day of December, 2002, to and
including the 30th day of November, 2007 (the "Term"), subject to and upon the
terms, covenants and conditions contained in the Lease, certain premises
containing a certified Rentable Area of one thousand eight hundred eighty
(1,880) square feet (174.65 square metres), designated as Suite No. 285 on the
2nd floor (the "Premises"), located at Granville Square (the "Building"), in the
City of Vancouver, in the Province of British Columbia, and which are shown
cross hatched in red on Schedule "B" attached to the Lease;
B. The Tenant intends to sublease the Premises to the Sub-Tenant, (the
"Subleased Premises"), with the prior written consent of the Landlord in
accordance with the terms of the Lease;
NOW THEREFORE THIS SUBLEASE WITNESSETH that in consideration of the sum of Two
Dollars ($2.00) now paid by each of the Parties to the other, the receipt and
sufficiency of which is hereby respectively acknowledged:
1. GRANT - The Tenant hereby subleases to the Sub-Tenant the Subleased
Premises containing a Rentable Area of approximately one thousand eight
hundred eighty (1,880) square feet (174.65 square metres) on the 2nd
floor as shown outlined in red on Schedule "A" attached hereto, for and
during a term (the "Sublease Term"), commencing on the 1st day of
April, 2004, (the "Effective Date"), and expiring one day before the
expiration of the Term demised by the Lease, in accordance with and
subject to the terms, covenants and conditions contained in this
Sublease and to the observance and performance by the Sub-Tenant of all
of the terms, covenants and conditions contained in the Lease to be
observed and performed by the Tenant with respect to the Subleased
Premises.
2. COVENANTS OF SUB-TENANT
(a) The Sub-Tenant hereby covenants and agrees to and with the Landlord and
the Tenant that It shall, throughout the Sublease Term:
1
(i) pay to the Tenant Net Rent based upon an annual rate of FOUR
DOLLARS ($4.00) per square foot ($43.06 per square metre) of
the Rentable Area of the Subleased Premises; and
(ii) pay to the Tenant the same Additional Rent in respect of the
Subleased Premises as the Tenant is required to pay under the
Lease, including, without limitation, goods and services taxes
or other taxes charged on rentals or arising out of the
occupancy of the Subleased Premises; and
(iii) observe and perform all of the terms, covenants and conditions
on the part of the Tenant contained in the Lease to be paid,
observed and performed with respect to the Subleased Premises
and shall indemnify the Tenant and the Landlord against all
actions, claims, expenses and demands in respect of such
obligations.
(b) The Tenant acknowledges that the Sub-Tenant has paid a deposit of
THIRTEEN THOUSAND TWO HUNDRED TWENTY TWO DOLLARS AND NINETY ONE CENTS
($13,222.91) to be applied without interest to the Rent due under this
Sublease as per the schedule outlined as follows:
April 1, 2004 $3,302.38
March 1, 2005 $3,309.08
September 1, 2006 $3,309.08
November 1, 2007 $3,302.38
(c) The Sub-Tenant acknowledges to and with the Landlord and the Tenant
that:
(i) it has received a copy of the executed Lease and is familiar
with the terms, covenants and conditions contained therein and
agrees to be bound by those provisions as they relate to the
Subleased Premises; and
(ii) it waives any rights the Sub-Tenant may have under any legal
or equitable rule of law or under the applicable Landlord and
Tenant legislation of the Province, as amended from time to
time, or any other applicable legislation, to apply to a court
or to otherwise elect to or obtain the right to do any of the
following:
(A) retain the unexpired Term of the Lease or the
unexpired Sublease Term;
(B) obtain any right to enter into any lease or other
agreement directly with the Landlord for the
Premises, or
(C) otherwise remain in possession of any portion of the
Premises,
in any case where the Lease is (i) terminated, surrendered or otherwise
cancelled, including a disclaimer of the Lease by a trustee in
bankruptcy of the Tenant, and including any repudiation of the Lease by
the Tenant pursuant to bankruptcy legislation, or (ii) assigned, sold,
disposed of, or otherwise dealt.
(d) The Sub-Tenant agrees to use the Subleased Premises for the purpose of
general business offices only.
(e) The Sub-Tenant will take possession of the Subleased Premises in the
condition in which they existed on the Effective Date and will have the
use of the fixed partitioning, carpeting, window coverings, light
fixtures, partitioning doors and hardware and all Leasehold
Improvements then in the Subleased Premises, as well as the trade
fixtures as more particularly set out herein:
(A) The Sub Tenant shall have the use of the furniture, equipment,
appliances, artwork and patio furniture located in the
Subleased Premises as of January 29, 2004.
(B) The Sub-Tenant shall have the option of purchasing the above
noted trade fixtures from the Tenant for the sum of ONE DOLLAR
($1.00). In the event the Sub-Tenant does not elect to
purchase the Tenant's trade fixtures as set out herein, the
Tenant will arrange for the removal of same from the Subleased
Premises, at the Tenant's sole cost and expense.
(C) The Sub-Tenant shall be permitted to install new Leasehold
improvements or make Alterations to existing Leasehold
Improvements in accordance with the terms of the Lease with
the prior written approval of the Tenant and the Landlord,
such approval not to be unreasonably withheld. The Landlord
acknowledges and agrees that the Sub-Tenant shall be
2
performing a renovation to the Subleased Premises, at the
Sub-Tenant's sole expense, which renovation shall include
painting, carpeting, new baseboards and the construction of
two (2) offices within the Subleased Premises. All work shall
be performed in accordance with and pursuant to the terms of
the Lease.
(f) The Landlord and the Tenant acknowledge and agree that the Sub-Tenant
shall have the use, during the Sublease Term of the two (2) unreserved
parking stalls in the parking facility serving the Building which the
Tenant Is licensed to use pursuant to Section 11.22 of the Lease. It is
further understood and agreed that the Sub Tenant will pay directly to
the Landlord, or the parking facility operator as directed by the
Landlord, the prevailing monthly rate as established by the Landlord
from time to time for the use of such parking stalls. Upon written
request from the Landlord, the Sub Tenant shall enter into a separate
parking agreement with the Landlord (or the parking operator if the
Landlord so directs) with respect to the above mentioned parking
spaces.
(g) At the expiration or earlier termination of the Sublease Term, the
Sub-Tenant shall remove its Trade Fixtures, as well as the Tenant's
trade fixtures which the Sub-Tenant has the use of during the Sublease
Term, and shall repair any damage to the Subleased Premises or the
Building caused by such removal, but shall otherwise surrender and
deliver vacant possession of the Subleased Premises to the Tenant in an
"as is" condition.
3. CONSENT AND CONDITIONS - The Landlord hereby grants its consent to this
Sublease subject to the following conditions:
(a) the Sub-Tenant shall be jointly and severally liable with the Tenant to
observe and perform the Tenant's obligations in the Lease with respect
to the Subleased Premises (other than the payment of Net Rent, the
Sub-Tenant's liability for which shall be limited to the amount payable
by the Sub-Tenant under Paragraph 2 of this Sublease);
(b) the Tenant hereby covenants and agrees to and with the Landlord that it
remains jointly and severally liable with the Sub-Tenant under the
Lease with respect to the Subleased Premises and that the Tenant is not
released from the performance of any of the terms, covenants and
conditions contained in the Lease and further, the Tenant will
indemnify the Landlord and save it harmless from and against any and
all costs and expenses incurred as a result of this Sublease and the
Landlord's consent hereto;
(c) the Landlord's consent does not constitute a waiver of the necessity
for obtaining consent to any assignment of the Lease or further
subletting of the Premises or any other Transfer of the Lease, nor Is
it to be construed or interpreted as a forfeiture of any of the rights
of the Landlord contained in the Lease;
(d) any and all costs, legal or otherwise, incurred by the Landlord with
respect to this Sublease and the Landlord's consent provided for in
this Sublease shall be borne entirely by the Tenant and the Tenant
hereby covenants to promptly indemnify and save harmless the Landlord
from and against any and all costs so incurred;
(e) by giving its consent, the Landlord does not acknowledge or approve of
any of the terms of this Sublease (or any other related agreements) as
between the Tenant and the Sub-Tenant, except for the subletting of the
Premises itself; and
(f) the Sub-Tenant shall not enter into or take possession of the Subleased
Premises until:
(A) it has delivered to the Landlord certificates of insurance or,
if required by the Landlord's Mortgagee, certified copies of
any insurance policy which the Sub-Tenant is required to take
out pursuant to this Sublease (being all such insurance as the
Tenant is required, under the terms of the Lease, to maintain
in respect of the Subleased Premises); and
(B) it has obtained all required permits, licenses and approvals
from all governmental authorities having jurisdiction for the
carrying on by the Sub-Tenant of its permitted business in the
Subleased Premises.
(h) The Landlord acknowledges that the provisions of Section 8.03(c) of the
Lease shall not apply to this Sublease.
3
4. TENANT'S EXERCISE OF RIGHTS
(a) It is understood and agreed that if:
(i) the Sub-Tenant falls to pay any Rent (Including Net Rent and
Additional Rent) or other sums due hereunder on the day or
data appointed for the payment thereof (provided the tenant
first elves four (4) days written notice to the Sub-Tenant of
any such failure); or
(ii) the Sub-Tenant fails to observe or perform any of the terms,
covenants or conditions of this Sublease to be observed or
performed by the Sub-Tenant (other than those terms, covenants
or conditions more specifically set out in the Lease for which
no notice shall be required) provided the Tenant first gives
the Sub-Tenant fourteen (14) days, (or such shorter period of
time as is otherwise provided in subparagraph (b) hereof),
written notice of any such failure to perform and the
Sub-Tenant within such period of fourteen (14) days fails to
commence diligently and thereafter to proceed diligently to
cure any such failure to perform,
then the Tenant shall have the right 'to terminate this Sublease and
the Tenant shall forthwith re-enter the Subleased Premises as though
the Sub-Tenant had not been in possession thereof, subject, however, to
the terms, covenants and conditions contained In the Lease, including,
without limitation, the provisions of Article VIII and to the rights of
the Landlord provided for in the Lease, or at law. Notwithstanding any
such reentry It is understood and agreed that Rent continues to be
payable in accordance with the terms of the Lease and all of the other
terms, covenants and conditions contained in the Lease are to be
observed and performed in accordance with the terms of the Lease.
(b) Notwithstanding THE PROVISIONS OF PARAGRAPH 4(a)(ii) HEREOF, IF THE
Sub-Tenant IS IN default in the performance of any of its covenants or
obligations hereunder (other than the payment of Rent or other sums
required to be paid pursuant to this Sublease) the Tenant may from time
to time after giving such notice as it considers sufficient (or without
notice in the case of an emergency), having regard to the circumstances
applicable, perform or cause to be performed any of such covenants or
obligations, or any part thereof, and for such purpose may do such
things as may be required including, without limitation, entering upon
the Subleased Premises and doing such things upon or in respect of the
Subleased Premises or any part thereof as the Tenant reasonably
considers requisite or necessary. All expenses Incurred and
expenditures made pursuant to this subparagraph shall be paid by the
Sub-Tenant as Additional Rent, or otherwise as may be the case,
forthwith upon demand. The Tenant shall have no liability to the
Sub-Tenant for any loss or damages resulting from any such action or
entry by the Tenant upon the Subleased Premises.
5. COVENANTS OF TENANT - The Tenant covenants to and with the Sub-Tenant
during the Sublease Term for quiet enjoyment and to pay all Rent
reserved under the Lease and not to cause any default in the
performance of the Tenant's obligations under the Lease.
6. NOTICE - Any and all notices or demands by and from any of the parties
hereto to the other shall be in writing and may be served either
personally or by registered mail. Any such notice:
(a) in the case of the Tenant shall be served on the Tenant at the Premises
or, at the Landlord's option, at the Tenant's head office at c/o
Colliers International, 16th Floor, 200 Granville Street, Vancouver,
B.C.
(b) in the case of the Sub-Tenant shall be served on the Sub-Tenant at the
Subleased Premises or, at the Landlord's option, at the Sub-Tenant's
head office, at Suite 700, 900 West Hastings Street, Vancouver, British
Columbia, V6C 3E8;
(c) in the case of the Landlord shall be served on the Landlord at the
Landlord's head office at 20 Queen Street West, Toronto, Ontario M5H
3R4, Attention: Corporate Secretary.
Any Party may change the address set out above by appropriate written
notice to the other Parties. In any case, any such written notice shall
be deemed to have been received on the date of its delivery or, if
mailed, two (2) business days after the mailing thereof. Where the
terms of the Lease require or permit the Tenant to give a notice to the
Landlord, the Sub-Tenant shall give a comparable notice to the Tenant
not less than one (1) day before the last day on which the Tenant is to
give such notice to the Landlord and where the
4
terms of the Lease require or permit the Landlord to give notice to
the Tenant, the Tenant may give a comparable notice to the Sub-Tenant
up to one (1) day after the last date on which the Landlord is
entitled to give such notice to the Tenant. It is understood and
agreed that the Landlord shall give notice of all breaches under the
Lease by the Tenant and/or the Sub-Tenant to each of the Tenant and
the Sub-Tenant in accordance with the terms of the Lease.
7. CONFIRMATION - The Parties hereto do in all other respects hereby
confirm that the Lease is in full force and effect, unchanged and
unmodified except in accordance with this Sublease. It is understood
and agreed that all terms and expressions when used in this Agreement,
unless a contrary intention is expressed herein, have the same meaning
as they have in the Lease.
8. PARTIAL INVALIDITY - If any term, obligation or condition of this
Sublease, or its application to any Person or circumstance, is to any
extent held or rendered invalid, unenforceable or illegal, then the
term, obligation or condition (a) is deemed to be independent of the
remainder of this Sublease and to be severable and divisible from it,
and its Invalidity, unenforceability or illegality does not affect,
impair or invalidate the remainder of the Sublease or any part of it;
and (b) continues to be applicable and enforceable to the fullest
extent permitted by law against any Person and circumstance except
those to which it, or its application, has been held or rendered
invalid, unenforceable or illegal.
9. BINDING - This Sublease enures to the benefit of the Landlord and its
successors and assigns, and shall be binding upon each of the other
Parties and each of their heirs, executors, administrators, and
permitted successors and permitted assigns, respectively.
IN WITNESS WHEREOF the Parties hereto have duly executed this Agreement
as of the day and year first above written.
ONTREA INC., BY ITS DULY AUTHORIZED AGENT
CADILLAC VAIRVIEW MANAGEMENT SERVICE INC.
-----------------------------------------
(Landlord)
Per:
-----------------------------------------
Authorized Signature
Per:
-----------------------------------------
Authorized Signature
I/We have authority to bind the corporation.
FORBES TRAVEL INTERNATIONAL LTD.
--------------------------------
(Tenant)
Per: /s/
-----------------------------------------
Authorized Signature
I/We have authority to
bind the corporation.
TLC VENTURES CORP.
------------------
(Sub-Tenant)
Per: /s/
-----------------------------------------
Authorized Signature
I/We have authority to bind the corporation.
5
SCHEDULE "A" - FLOOR PLAN OF SUBLEASED PREMISES
[FLOOR PLAN OF "GRANVILLE SQUARE" -- 200 GRANVILLE STREET, VANCOUVER, B.C.,
2ND FLOOR]
6