Exhibit 4.6
May 1 2000
LEASE OF OFFICE SPACE
BETWEEN: 448048 ONTARIO INC. & FIRST UNITED REAL ESTATE
INVESTORS INC. ("Landlord")
(a Joint Venture operating as 0000 XXXXX XXXXXX)
AND: IMI INTERNATIONAL MEDICAL INNOVATIONS INC. ("Tenant")
FOR PREMISES AT: 0000 XXXXX XXXXXX, XXXXX 000, XXXXXXXXXX, XXXXXXX, X0X 0X0.
LANDLORD AND TENANT, in consideration of the covenants herein contained, hereby
agree as follows:
ARTICLE I DEFINITIONS
1.01 Definitions In this Lease:
(a) "Article" means an article of this Lease.
(b) "Building" means Landlord's building known as 0000 XXXXX XXXXXX,
XXXXXXXXXX, XXXXXXX, X0X 0X0.
(c) "Commencement Date" means the first day of the Term of this Lease.
(d) "Exhibit A" means the plan(s) attached hereto as Exhibit A.
(e) "Exhibit A (i)" means the provisions relating to the construction of
Leased Premises, Landlord's Work and Tenant's Work, attached hereto as
Exhibit A (i).
(f) "Exhibit A (ii)" means the Legal Description of the Building.
(g) "Exhibit B" means the provisions relating to Occupancy Costs and other
matters attached hereto as Exhibit B.
(h) "Exhibit C" means Rules and Regulations attached hereto as Exhibit C.
(i) "Exhibit D" means Supplemental Terms and Conditions.
(j) "Fiscal Year" means a twelve (12) month period (all or part of which
falls within the Term) from time to time determined by Landlord at the
end of which Landlord's books are balanced for auditing and/or taxation
purposes. Unless otherwise notified by the Landlord, "Fiscal Year" shall
mean the calendar year.
(k) "Land" means the whole of the lands described in the legal description
attached hereto as Exhibit A (ii), together with attendant common,
public and service areas.
(l) "Occupancy Costs" means amounts payable by Tenant to Landlord under
Article 4.02.
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(m) "Other Charges" means amounts payable by Tenant to Landlord other than
under Article 4.00.
(n) "Rent" means all amounts payable by Tenant to Landlord including under
Articles 4.01, 4.02, 4.03 and 6.05.
(o) "Lease" means this lease, Exhibits A, A(i), A(ii), B, C, and D to this
lease, and every property executed instrument (including an accepted
Offer to Lease, referred to in Article 21.05), which by its terms
amends, modifies or supplements this lease.
(p) "Premises" means approximately 2,309 rentable square feet, more or
less, being a portion of the third floor of the Building as generally
indicated on Exhibit A, bounded by the interior face of all walls, the
upper surface of the concrete floor, and the under surface of the
ceiling.
(q) "Term" means the period of time set out in Article 3.01.
ARTICLE II GRANT OF LEASE
2.01 Grant. Landlord demises and leases the Premises to Tenant, and Tenant
hereby leases and accepts the Premises from Landlord, to have and hold during
the Term, subject to the terms and conditions of this Lease.
2.02 Covenants of Landlord and Tenant. Landlord covenants to observe and
perform all of the terms and conditions to be observed and performed by Landlord
under this Lease. Tenant covenants to pay the Rent when due under this Lease,
and to observe and perform all of the terms and conditions to be observed and
performed by Tenant under this Lease.
2.03 Construction of Premises. Landlord shall provide only such improvements
as are listed in Exhibit A (i), All other improvements including the work
obligated in Exhibit A (i) shall be provided by Tenant at the sole cost and
expense of Tenant and in compliance with Exhibit A (i)
2.04 License to use common area. Possession of the Premises by Tenant shall
include the non-exclusive use, in common with others entitled thereto, of the
Common Areas from time to time: subject however to the terms and conditions of
this Lease, and to the rules and regulations the Landlord prescribes from time
to time.
ARTICLE III TERM AND POSSESSION
3.01 Term. The term of this lease shall be Five (5) Years, beginning on the
1st day of July, 2000 and ending on the 30th day of June, 2005, unless
terminated earlier as provided in this Lease.
3.02 Acceptance of Premises. Taking possession of all or any part of the
Premises by Tenant shall be conclusive evidence against Tenant that the Premises
or such part are in satisfactory condition on the date of taking possession,
subject only to deficiencies (if any) listed in writing in a notice delivered by
Tenant to Landlord not more than five (5) days after the date of taking
possession save and except for latent defects.
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ARTICLE IV RENT AND OCCUPANCY COSTS
4.01 Base Rent. Tenant shall pay to the Landlord as Base Rent for the Premises
the sum of monies as stated in Exhibit (D).
4.02 Additional Rent. In addition to Base Rent, Tenant shall pay to the
Landlord, at the times and in the manner provided in Article 4.06, the Occupancy
Costs set out in Exhibit B: and at such times and in such manner as reasonably
required by Landlord, all other amounts (including Additional Services under
Article 6.05) which are payable by Tenant to Landlord under this Lease.
4.03 Interest. Tenant shall pay to Landlord interest at a rate equal to three
percent (3%) per annum in excess of the minimum lending rate to prime commercial
borrowers from time to time current at the Bank of Montreal in Toronto from the
due date until actual payment, upon all Rent required to be paid hereunder, from
the due date for payment thereof until the same is fully paid and satisfied.
4.04 Payment of Rent - General. All amounts payable by Tenant to Landlord
under this Lease shall be deemed to be Rent and shall be payable and recoverable
as Rent and Landlord shall have the same rights against Tenant for default in
any such payment as in the case of arrears of Rent. Rent shall be paid to
Landlord, without deduction or set-off, in lawful money of Canada, at the
address of Landlord as set out in this Lease, or to such other person or at such
other address as Landlord may from time to time designate in writing. Tenant's
obligation to pay Rent shall survive the expiration or earlier termination of
this Lease.
4.05 Rent for Part-Month. If the Term ends on a day other than the last day of
a calendar month, the installment of Base Rent payable on the first day of the
last calendar month of the Term shall be that proportion of the Annual Base Rent
which the number of days from the first day of such last calendar month to the
last day of the Term, bears to three hundred sixty-five (365). Equivalently if
the Term commences on a day other than the first day of a calendar month, the
installment of Base Rent payable on the commencement date shall be that
proportion of the Annual Base Rent which the number of days from the
Commencement Date to the end of the same month bears to three hundred sixty-five
(365).
4.06 Payment - Occupancy Costs
(a) At the beginning of each Fiscal Year, Landlord shall compute and deliver
to Tenant an estimate of Occupancy Costs for the Fiscal Year that is
commencing and without further notice Tenant shall pay to Landlord in
monthly installments one-twelfth (1/12) of such estimate simultaneously
with Tenant's payments of Base Rent during such Fiscal Year.
(b) Unless delayed for any reason, Landlord shall deliver to Tenant within
one hundred twenty (120) days after the end of each Fiscal Year a written
statement (the "Statement") setting out in reasonable detail the amount
of Occupancy Costs for such Fiscal Year. If the Statement has been
delayed, Landlord shall deliver same as soon as reasonably possible
thereafter, If the aggregate of monthly installments of Occupancy Costs
actually paid by Tenant to Landlord during such Fiscal Year differs from
the amount of Occupancy Costs payable for such Fiscal Year under Article
4.02, Tenant shall pay or Landlord shall refund the difference (as the
case may be) without interest within thirty (30) days after the date of
delivery of the Statement. Such Statement of Landlord shall be final and
binding and Tenant shall
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have no right to dispute the accuracy or propriety of any amounts or
calculations included therein, except to the extent that (a)Tenant shall
have, within ninety (90) days after being given such Statement
demonstrated to the Landlord's satisfaction any error in such Statement
and (b) Tenant shall have an additional ninety (90) days to request
information from Landlord relating to Occupancy Costs if such occupancy
costs have a variance of greater than twenty percent (20%) than in the
previous Fiscal Year.
ARTICLE V USE OF PREMISES
5.01 Use. The Premises shall be used and occupied only as business premises
for the business of a general office or for such other purpose as the Landlord
may specifically authorize in writing, and such business shall be conducted
during the entire Term in a first-class and reputable manner befitting the
Building and the customers thereof.
5.02 Compliance with laws. The Tenant shall use and occupy the Premises in a
safe, careful and proper manner and shall comply with any present or future
regulations or orders of any governing body or any authority having jurisdiction
and the requirements of any insurer. If by reason of the Tenant's use of the
Premises, improvements are necessary to comply with any of the foregoing or with
the requirements of insurance carriers, Tenant shall pay the entire cost
thereof.
5.03 Abandonment. Tenant shall not vacate or abandon the Premises at any time
during the Term without Landlord's written consent.
5.04 Nuisance. Tenant shall not cause or maintain any nuisance in or about the
Premises, and shall keep the Premises free of debris, rodents, vermin and
anything of a dangerous, noxious or offensive nature or which could create a
fire hazard (through undue load on electrical circuits or otherwise) or undue
vibration, heat or noise or otherwise.
ARTICLE VI SERVICES, MAINTENANCE, REPAIR
AND ALTERATIONS BY LANDLORD
6.01 Quiet Enjoyment. The Landlord covenants with the Tenant for quiet
enjoyment.
6.02 Services to Premises. Landlord shall provide in office premises during
Normal Business Hours:
(a) heating that shall maintain an indoor temperature of twenty-two (22)
degrees Celsius dry bulb
(b) air-conditioning that shall maintain an indoor temperature of not more
than twenty-four (24) degrees Celsius dry bulb with a two (2) degree
Celsius upswing in the summer with outside peak design temperatures as
indicated in "Climate Information for Building Design in Canada 1975"
(Supplement No. I to the National Building Code of Canada)
(c) ventilation that shall supply a minimum of 2.5 liters per second of
outside air per ten (10) square meters of net floor area and a minimum of
ten (10) liters per second of total ventilation air per ten (10) square
meters of net floor area at all outdoor conditions
(d) janitor services, including exterior window washing
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(e) electric power for normal lighting and small business office equipment
(but not equipment using amounts of power disproportionate to that used
by other tenants in the Building)
(f) replacement of Building Standard fluorescent tubes, light bulbs and
ballasts as required from time to time as a result of normal usage, and
(g) maintenance, repair, and replacement as set out in Article 6.04.
6.03 Building Services. Landlord shall provide in the Building:
(a) washrooms sufficient for the normal use thereof by occupants in the
Building,
(b) elevator or escalator service for access to and egress from the Premises
(if applicable),
(c) heat, ventilation, air conditioning, lighting, electric power, domestic
hot (or tempered) and cold running water, supplies and Janitor service in
the Common Areas of the Building, during Normal Business Hours,
(d) a general directory board on which Tenant shall be entitled to have its
name shown, provided that Landlord shall have exclusive control thereof
and of the space thereon to be allocated to each tenant, and,
(e) maintenance, repair, and replacement as set out in Article 6.04.
6.04 Maintenance, Repair and Replacement. Landlord shall operate, maintain,
repair and replace the systems, facilities and equipment necessary for the
proper operation of the office Building and for provision of Landlord's services
under Article 6.02 and 6.03 (except as such may be installed by or be the
property of Tenant), and shall be responsible for and shall expeditiously
maintain and repair the foundations, structure and roof of the Building and
repair damage to the Building which Landlord is obligated to insure against and
for which Landlord receives proceeds under Article 9.00, provided that:
(a) If all or part of such systems, facilities and equipment are destroyed,
damaged or impaired, Landlord shall have a reasonable time in which to
complete the necessary repair or replacement.
(b) Landlord may temporarily discontinue such services or any of them at such
times as may reasonably be necessary.
(c) Landlord shall use reasonable diligence in carrying out its obligations,
but shall not be liable under any circumstances for any damage whether
direct to any person or property for any failure to do so, or indirect or
consequential damages.
(d) No reduction or discontinuance of such services under this Article 6.04
(a) or (b) shall be construed as a breach of Landlord's covenant for
quiet enjoyment or as an eviction of Tenant or shall release Tenant from
any obligation under this Lease.
6.05 Additional Services
(a) (i) Tenant shall pay to Landlord forthwith on demand all charges as
determined and allocated by Landlord acting reasonably in respect of all
special services provided to or for the benefit of Tenant beyond building
standard services the costs for which are included in Operating Costs,
such special services
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including, without limitation, charges for security, hoisting,
supervision, elevator services, assistance of Building staff, waste
removal, and receiving, storing and handling materials and articles and
such services listed in Section 6.02 required beyond the building
standard level provided to the tenants generally ("Additional Services"):
and
(ii) unless otherwise expressly agreed between Landlord and Tenant to the
contrary, all work performed and materials supplied by Landlord for
Tenant or otherwise respecting the Premises pursuant to the provisions
hereof or otherwise shall be paid for by Tenant to Landlord forthwith
upon demand at Landlord's cost for same plus ten percent (10%) for
inspection and supervision plus ten percent (10%) for overhead and profit
or such other reasonable amounts as may be charged by Landlord for
overhead and profit from time to time.
(b) Tenant shall not without Landlord's written consent install in the
Premises equipment (including telephone equipment) which generates
sufficient heat to affect the temperature otherwise maintained in the
Premises by the air conditioning system as normally operated. Landlord
may install supplementary air conditioning units, facilities or services
in the Premises, or modify its air conditioning system, as may in
Landlord's reasonable opinion be required to maintain proper temperature
levels, and Tenant shall pay Landlord within ten (10) days of receipt of
any invoice for the cost thereof, including installation, operation and
maintenance expense.
(c) If Landlord shall from time to time determine that the use of electricity
or any other utility or service in the Premises is disproportionate to
the use of other tenants, Landlord may separately charge Tenant for the
excess costs the Landlord in its judgment attributes to such
disproportionate use. At Landlord's request, Tenant shall install and
maintain at Tenant's expense, metering devices for checking the use of
any such utility or service in the Premises.
6.06 Alterations by Landlord. Landlord may from time to time:
(a) make repairs, replacements, changes or additions to the structure,
systems, facilities and equipment in the Premises,
(b) make changes in or additions to any part of the Building not in or
forming part of the Premises, and,
(c) change or alter the location of common areas of the Building, provided
that in doing so Landlord shall not disturb or interfere with Tenant's
use of the Premises and operation of its business any more than is
reasonably necessary in the circumstances and shall repair any damage to
the Premises caused thereby.
6.07 Access by Landlord. Tenant shall permit Landlord to enter the Premises
outside normal business hours, and during normal business hours to examine,
inspect, and show the Premises to persons wishing to lease them, to provide
services or make repairs, replacements, changes or alterations as set out in
this Lease, and to take such steps as Landlord may deem necessary for the
safety, improvement or preservation of the Premises or the Building. Landlord
shall whenever possible consult with or give reasonable notice to Tenant prior
to such entry, but no such entry shall constitute a breach of Landlord's
covenant for quiet enjoyment or an eviction or entitle Tenant to any abatement
of Rent.
6.08 Energy, Conservation and Security Policies. Landlord shall be deemed to
have observed and performed the terms and conditions to be performed by Landlord
under this
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Lease, including those relating to the provision of utilities and services, if
in so doing it acts in accordance with a directive, policy or request of a
governmental or quasi-governmental authority or any utility in the fields of
energy, conservation or security.
6.09 Notwithstanding the provisions of this Article 6, the Landlord shall not be
responsible for any delay in effecting repairs or for non-performance during
periods of maintenance or inspections or other disruptions of service.
ARTICLE VII MAINTENANCE, REPAIR, ALTERATIONS
AND IMPROVEMENTS BY TENANT
7.01 Condition of Premises. Except to the extent that Landlord is specifically
responsible therefor under this Lease, Tenant shall maintain the Premises
including all trade fixtures and all glass therein and all improvements therein
in good order and condition and in a good and reasonable state of repair and
consistent with the general standards of first class office/retail buildings in
the area including:
(a) repainting and redecorating the Premises and cleaning drapes and carpets at
reasonable intervals as determined by the Landlord, and,
(b) making repairs, replacements and alterations as needed, including those
necessary to comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction.
7.02 Failure to Maintain Premises. If Tenant fails to perform any obligation
under Article 7.01, then on not less than ten (10) days notice to Tenant,
Landlord may enter the Premises and perform such obligation without liability to
Tenant for any loss or damage to Tenant thereby incurred, and Tenant shall pay
Landlord for the cost thereof, plus twenty percent (20%) of such cost for
overhead and supervision, within ten (10) days of receipt of Landlord's invoice
therefor.
7.03 Alterations by Tenant. Tenant may from time to time at its own expense make
changes, additions and improvements in the Premises to better adapt the same to
its business, provided that any such change, addition or improvement shall:
(a) comply with the requirements of any governmental or quasi-governmental
authority having jurisdiction,
(b) be made only with the prior written consent of Landlord,
(c) equal or exceed the then current standard for Building, and,
(d) be carried out only by persons approved in writing by Landlord, who shall
if required by Landlord deliver to Landlord before commencement of the work
performance and payment bonds as well proof of workers compensation and
public liability and property damage insurance coverage, with Landlord
named as an additional insured, in amounts with companies, and in form
reasonably satisfactory to Landlord, which shall remain in effect during
the entire period in which the work will be carried out.
Any increase in property taxes on or fire or casualty insurance premiums
for the Building attributable to such change, addition or improvement shall
be borne by Tenant.
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7.04 Trade Fixtures and Personal Property. Subject to the prior written approval
of the Landlord, Tenant may install in the Premises trade fixtures and personal
property usual to a business or professional office in a proper manner, provided
that no such installation shall interfere with or damage the mechanical or
electrical systems or the structure of the Building. If Tenant is not then in
default hereunder, trade fixtures and personal property installed in the
Premises by Tenant may be removed from the Premises:
(a) from time to time in the ordinary course of Tenant's business or in the
course of reconstruction, renovation, or alteration of the Premises by
Tenant, and,
(b) during a reasonable period prior to the expiration of the Term, provided
that Tenant promptly repairs at its own expense any damage to the Premises
resulting from such installation and removal.
7.05 Construction Lien. Tenant shall pay all costs for work done or caused to be
done by Tenant in the Premises which could result in any lien or encumbrance on
Landlord's interest in the Land or Building or any part thereof, shall keep the
title to the Land or Building and every part thereof free and clear of any lien
or encumbrance in respect of such work, and shall indemnify and hold harmless
Landlord against any claim, loss, cost, demand and legal or other expense,
whether in respect of any lien or otherwise, arising out of the sum of material,
services or labor for such work. Tenant shall immediately notify Landlord of any
such lien, claim of lien or other action of which it has or reasonably should
have knowledge and which affects the title to the Land or Building or any part
thereof, and shall cause the same to be removed within five (5) days (or such
additional time as Landlord may consent to in writing), failing which Landlord
may take such action as Landlord deems necessary to remove the same by paying
such monies into court and the entire cost thereof shall be immediately due and
payable by Tenant to Landlord.
7.06 Signs and Directory. The Tenant covenants that it will not paint, display,
inscribe, place or affix any sign, symbol, notice or lettering of any kind
anywhere outside the Leased Premises, whether on the outside or inside of the
building, or within the Leased Premises so as to be visible from the outside of
the Leased Premises, with the exception only of an identification sign at the
entrance to the Leased Premises and a directory listing in the main lobby of the
building, in each case containing only the name of the Tenant, and to be subject
to the approval of the Landlord as to design, size, location and content. Such
identification sign and directory listing shall be installed at the expense of
the Tenant and the Landlord reserves the right to install them.
ARTICLE VIII TAXES
8.01 Landlord's Taxes. Landlord shall pay on or before the due date (subject to
participation by Tenant by payment of Occupancy Costs under Article 4.02) every
real estate tax, assessment, license fee and other charge, excepting Tenant's
Taxes under Article 8.02, which is imposed, levied, assessed or charged by any
governmental or quasi-governmental authority having jurisdiction and which is
payable in respect of the Term upon or on account of the Land or Building.
8.02 Tenant's Taxes. Tenant shall pay by due date every tax, assessment, license
fee, excise and other charge, however described, which is imposed, levied,
assessed or charged by any governmental or quasi-governmental authority having
jurisdiction and which is payable in respect of Term upon or on account of:
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(a) operations at, occupancy of, or conduct of business in or from the Premises
by or with the permission of Tenant,
(b) fixtures or personal property in the Premises which do not belong to the
Landlord, and,
(c) the Rent paid or payable by Tenant to Landlord for the Premises or for the
use and occupancy of all or any part thereof; including under and by virtue
of any Goods and Services Tax.
Provided that if Landlord so elects by notice to Tenant, Tenant shall add
any amounts payable under this Article 8.02 to the monthly installments of
Base Rent payable under Article 4.01 and Landlord shall remit such amounts
to the appropriate authorities.
8.03 Right to Contest. Landlord and Tenant shall each have the right to contest
in good faith the validity or amount of any tax, assessment, license fee, excise
fee and other charge which it is responsible to pay under this Article 8.00,
provided that no contest by Tenant may involve the possibility of forfeiture,
sale or disturbance of Landlord's interest in the Premises and that upon the
final determination of any contest by Tenant, Tenant shall immediately pay and
satisfy the amount found to be due, together with any costs, penalty and
interest.
ARTICLE IX INSURANCE
9.01 Landlord's Insurance. During the Term, Landlord shall maintain (subject to
participation by Tenant by payment of Occupancy Costs under Article 4.02)
liability insurance, fire insurance with extended coverage, boiler and pressure
vessel insurance, and other insurance on the Building and all property and
interest of Landlord in the Building with coverage and in amounts not less than
those which are from time to time acceptable in the Landlord's judgment in the
area in which the Building is located. Landlord may also maintain, in the same
manner, gross profits insurance for loss of rents payable to Landlord.
Policies for such insurance shall waive, to the extent available from Landlords
carrier(s), any right of subrogation against Tenant.
9.02 Tenant's Insurance. During the Term, Tenant shall maintain at its own
expense:
(a) fire insurance with extended coverage and water damage insurance in amounts
sufficient to fully cover Tenant improvements and all property in the
Premises which is not owned by Landlord, and,
(b) liability insurance, with Landlord named as an additional insured, against
claims for death, personal injury and property damage in or about the
Premises, in amounts which are from time to time acceptable to a prudent
tenant in the community in which the Building is located, but not less than
two million dollars ($2,000,000.00) for death or injury to one (1) person,
two million dollars ($2,000,000.00) for death or injury to more than one
(1) person, and two million dollars ($2,000,000.00) for property damage, in
respect of each occurrence.
Policies for such insurance shall be in a form and with an insurer
reasonably acceptable to Landlord, shall require at least fifteen (15) days
written notice to Landlord of termination or material alteration during the
Term, and shall waive, to the extent available, any right of subrogation
against Landlord. If requested by
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Landlord, Tenant shall from time to time promptly deliver to Landlord
certified copies or other evidence of such policies, and evidence
satisfactory to Landlord that all premiums thereon have been paid and the
policies are in full force and effect.
ARTICLE X INJURY TO PERSON OR PROPERTY
10.01 Indemnity by Tenant. Tenant shall indemnify and save harmless Landlord
from and against every demand, claim, cause of action, judgment and expense, and
all loss and damage arising from:
(a) any injury or damage to the person or property of Tenant, any other tenant
in the Building or to any other person rightfully in the Building, where
the injury or damage is caused by negligence or misconduct of Tenant, its
agents, servants or employees, or of any other person entering upon the
Premises under express or implied invitation of Tenant, or results from
the violation of laws or by-laws or orders of any kind or of the
provisions of this Lease by any of the foregoing,
(b) any loss or damage, however caused, to books, records, files, money,
securities, negotiable instruments or papers in or about the Premises,
(c) any loss or damage resulting from interference with or obstruction of
deliveries to or from the Premises, and,
(d) any injury or damage not specified above to the person or property of
Tenant, its agents, servants or employees, or any other person entering
upon the Premises under express or implied invitation of Tenant, where the
injury or damage is caused by any reason other than the negligence or
misconduct of Landlord, its agents, servants, or employees.
10.02 Subrogation. The provisions of this Article 10.00 are subject to the
waiver of any right of subrogation against Tenant in Landlord's Insurance under
Article 9.01 and to the waiver of any right of subrogation against Landlord in
Tenant's Insurance under Article 9.02.
ARTICLE XI ASSIGNMENT AND SUBLETI1NG
11.01 Licenses. The Tenant shall not permit any part of the Premises to be used
or occupied by any person other than the Tenant, any assignees of subtenants
permitted under clause 11.02 and the employees of the Tenant and of any such
permitted assignee or subtenant, or permit any part of the Premises to be used
or occupied by any licensee or concessionaire, or permit any persons to be upon
the Premises other than the Tenant, such permitted assignees or subtenants and
their respective employees, customers and others having lawful business with
them.
11.02 Assignment and Sublease. The Tenant shall not assign this Lease or sublet
the whole or any part of the Leased Premises unless (1) it shall have received
or procured a bona fide written offer to take an assignment or sublease which is
not inconsistent with, and the acceptance of which would not breach any
provision of this Lease if this Article is complied with and which the Tenant
has determined to accept subject to this Article being complied with, and (2) it
shall have first requested and obtained the consent in writing of the Landlord
thereto. Any request for such consent shall be in writing and accompanied by a
true copy of such offer and the Tenant shall furnish to the Landlord all
information reasonably requested by the Landlord as to the responsibility,
reputation, financial
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standing and business of the proposed assignee or subtenant, and shall pay the
costs the Landlord reasonably incurs on the request. Within ten (10) days after
the receipt by the Landlord of such request for consent and of all information
which the Landlord shall have requested hereunder (and if no such information
has been requested, within fifteen (15) days after receipt of such request for
consent) the Landlord shall have the right upon written notice to the Tenant, if
the request is to assign this Lease or sublet the whole of the Premises, to
cancel and terminate this lease or if the request is to sublet a part of the
Premises only, to cancel and terminate this Lease with respect to such part, in
each case as of a termination date to be stipulated in the notice of termination
which shall be not less than sixty (60) days or more than ninety (90) days
following the giving of such notice and in such event the Tenant shall surrender
the whole or part as the case may be of the Premises in accordance with such
notice and rent shall be apportioned and paid to the date of surrender and, if a
part only of the Leased Premises is surrendered, rent payable under Clause 2
shall thereafter xxxxx proportionately. If the Landlord shall not exercise the
foregoing right of termination, then the Landlord's consent to the Tenant's
request for consent to assign or sublet shall not be unreasonably withheld and
if such consent shall be given the Tenant shall assign or sublet, as the case
may be, only upon the Terms set out in the offer submitted to the Landlord as
aforesaid and not otherwise.
11.03 Subsequent Assignments. Landlord's consent to an assignment, transfer or
subletting (or use or occupation of the Premises by any other person) shall not
be deemed to be a consent to any subsequent assignment, transfer, subletting,
use or occupation.
11.04 Change of Control of Tenant. Sales aggregating more than fifty percent
(50%) of the voting stock of Tenant, and other changes of control of Tenant
shall be deemed to be an assignment of this Lease and subject to the provisions
of Article 11.02.
ARTICLE XII SURRENDER
12.01 Possession. Upon the expiration or other termination of the Term, Tenant
shall immediately quit and surrender possession of the Premises in substantially
the good condition in which Tenant is required to maintain the Premises,
excepting only reasonable wear and tear and damage covered by Landlord's
insurance under Article 9.01. Upon such surrender, all right, title and interest
of Tenant in the Premises shall cease.
12.02 Trade Fixtures, Personal Property and Improvements. Subject to Tenant's
rights under Article 7.04, after the expiration or other termination of the Term
all of Tenant's trade fixtures, personal property and improvements remaining in
the Premises shall be deemed conclusively to have been abandoned by Tenant and
may be appropriated, sold, destroyed or otherwise disposed of by Landlord
without notice or obligation to compensate Tenant or to account therefor, and
Tenant shall pay to Landlord on written demand all costs incurred by Landlord in
connection therewith.
12.03 Merger. The voluntary or other surrender of this Lease by Tenant or the
cancellation of this Lease by mutual agreement of Tenant and Landlord shall not
work a merger, and shall at Landlord's option terminate all or any subleases and
subtenancies or operate as an assignment to Landlord of all or any subleases and
Landlord's option hereunder shall be exercised by written notice to Tenant and
all known subleases or subtenants in the Premises or any part thereof.
12.04 Payments After Termination. No payments of money by Tenant to Landlord
after the expiration or other termination of the Term or after the giving of any
notice (other than a demand for payment of money) by Landlord to Tenant, shall
reinstate, continue or
11
extend the Term or make ineffective any notice given to Tenant prior to the
payment of such money. After the service of notice or the commencement of a
suit, or after final judgment granting Landlord possession of the Premises,
Landlord may receive and collect any sums of Rent due under the Lease, and the
payment thereof shall not make ineffective any notice, or in any manner affect
any pending suit or any judgment theretofore obtained.
ARTICLE XIII HOLDING OVER
13.01 Month-to-Month Tenancy. If with Landlord's written consent Tenant remains
in possession of the Premises after the expiration or other termination of the
Term, Tenant shall be deemed in the absence of a statement to the contrary in
such written consent, to be occupying the Premises on a month-to-month tenancy
only, at a monthly rental equal to the Rent as determined in accordance with
Article 4.00 or such other rental as is stated in such written consent, and such
month-to-month tenancy may be terminated by Landlord or Tenant on the last day
of any calendar month by delivery of at least thirty (30) days advance notice of
termination to the other.
13.02 Overholding Tenant. If without Landlord's written consent, Tenant remains
in possession of the Premises after the expiration or other termination of the
Term, Tenant shall be deemed to be occupying the Premises at a charge equal to
two times the monthly Rent determined in accordance with Article 4.00. Such may
be terminated by Landlord at any time upon demand, and may be terminated by
Tenant by delivery of at least ninety (90) days advance notice of termination.
13.03 General. Any month-to-month tenancy or overholding hereunder shall be
subject to all other terms and conditions of this Lease except any right of
renewal and nothing contained in this Article 13.00 shall be construed to limit
or impair any of Landlord's rights of re-entry or eviction or constitute a
waiver thereof.
ARTICLE XIV RULES AND REGULATIONS
14.01 Purpose. The Rules and Regulations in Exhibit C have been adopted by
Landlord for the safety, benefit and convenience of all tenants and other
persons in the Building.
14.02 Observance. Tenant shall at all times comply with, and shall cause its
employees, agents, licensees and invitees to comply with the Rules and
Regulations from time to time in effect.
14.03 Modification. Landlord from time to time, for the purposes set out in
Article 14.01, may amend, delete from, or add to the Rules and Regulations,
provided that any such modification:
(a) shall not be repugnant to any other provision of this Lease,
(b) shall be reasonable and have general application to all tenants of the
same type of premises as Tenant (retail or office) in the Building, and,
(c) shall be effective only upon delivery of a copy thereof to Tenant at the
Premises.
14.04 Non-Compliance. Landlord shall use its best efforts to secure compliance
by all tenants and other persons with the Rules and Regulations from time to
time in effect, but shall not be responsible to Tenant for failure of any person
to comply with such Rules and Regulations.
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ARTICLE XV EXPROPRIATION
15.01 Taking of Premises. If during the Term all of the Premises shall be
expropriated or taken for any public or quasi-public use under any statute or
law, or purchased under threat of such taking, this Lease shall automatically
terminate on the date on which the expropriating authority takes possession of
the Premises (hereinafter called the `date of such taking").
15.02 Partial Taking of Building. If during the Term only part of the Building
is taken or purchased as set out in Article 15.01, then:
(a) if in the reasonable opinion of Landlord substantial alteration or
reconstruction of the Building is necessary or desirable as a result
thereof, whether or not the Premises are or may be affected, the Landlord
shall have the right to terminate this Lease by giving the Tenant at least
thirty (30) days written notice of such termination,
(b) if more than one-third (1/3) of the number of square feet in the Premises
is included in such taking or purchase, Landlord and Tenant shall each
have the right to terminate this Lease by giving the other at least thirty
(30) days written notice thereof. If either party exercises its right of
termination hereunder, this Lease shall terminate on the date stated in
the notice, provided, however, that no termination pursuant to notice
hereunder may occur later than sixty (60) days after the date of such
taking.
15.03 Surrender. On any such date of termination under Article 15.01 or 15.02,
Tenant shall immediately surrender to Landlord the Premises and all interests
therein under this Lease. Landlord may re-enter and take possession of the
Premises and remove Tenant therefrom, and the Rent shall xxxxx on the date of
termination, except that if the date of such taking differs from the date of
termination, then rent shall xxxxx on the former date in respect of the portion
taken. After such termination, and on notice from Landlord stating the Rent then
owing, Tenant shall forthwith pay Landlord such Rent.
15.04 Partial Taking of Premises. If any portion of the Premises (but less than
the whole thereof) is so taken, and no rights of termination herein conferred
are exercised, the Term of this Lease shall expire with respect to the portion
so taken on the date of such taking. In such event the Rent payable hereunder
with respect to such portion so taken shall xxxxx on such date, and the Rent
thereafter payable with respect to the remainder not so taken shall be adjusted
pro rata by Landlord in order to account for the resulting reduction in the
number of square feet in the Premises.
15.05 Awards. Upon any such taking or purchase, Landlord shall be entitled to
receive and to retain the entire award or consideration for the affected lands
and improvements, and Tenant shall not have nor advance any claim against
Landlord for the value of its property or its leasehold estate or the unexpired
Term of the Lease, or for costs or removal or relocation, or business
interruption expense or any other damages arising out of such taking or
purchase. Nothing herein shall give Landlord any interest in or preclude Tenant
from seeking and recovering on its own account from the condemning authority any
award or compensation attributable to the taking or purchase of Tenant's
improvements, chattels or trade fixtures, or the removal or relocation of its
business and effects, or the interruption of its business. If any such award
made or compensation paid to either party specifically includes an award or
amount for the other, the party first receiving the same shall promptly account
therefor to the other.
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ARTICLE XVI DAMAGE BY FIRE OR OTHER CASUALTY
16.01 Limited Damage to Premises. If all or part of the Premises are rendered
untenantable by damage from fire or other casualty which, in the reasonable
opinion of Landlord's architect can be substantially repaired under applicable
laws and governmental regulations within one hundred eighty (180) days from the
date of such casualty, Landlord shall forthwith repair such damage other than
damage to improvements, furniture, chattels or trade fixtures which do not
belong to Landlord out of the proceeds of fire insurance paid to the Landlord.
16.02 Major Damage to Premises. If all or part of the Premises are rendered
untenantable by damage from fire or other casualty which, in the reasonable
opinion of Landlord's architect cannot be substantially repaired under
applicable laws and governmental regulations within one hundred eighty (180)
days from the date of such casualty then either Landlord or Tenant may elect to
terminate this Lease as of the date of such casualty by written notice delivered
to the other not more than thirty (30) days after receipt of such Architect's
opinion, failing which Landlord shall repair such damage other than damage to
improvements, furniture, chattels and trade fixtures which do not belong to
Landlord.
16.03 Abatement. If Landlord is required to repair damage to all or part of the
Premises under Article 16.01 or 16.02 the Rent payable by Tenant hereunder shall
be proportionately reduced to the extent that the Premises are thereby rendered
unusable by Tenant in its business, from the date of such casualty until
completion by Landlord of the repairs to the Premises (or the part thereof
rendered untenantable).
16.04 Major Damage to Building. If all or a substantial part (whether or not
including the Premises) of the Building is rendered untenantable by damage from
fire or other casualty to such a material extent that in the reasonable opinion
of Landlord the Building must be totally or partially demolished, whether or not
to be reconstructed in whole or in part, Landlord may elect to terminate this
Lease as of the date of such casualty (or on the date of notice if the Premises
are unaffected by such casualty) by written notice delivered to Tenant not more
than sixty (60) days after the date of such casualty.
16.05 Limitation on Landlord's Liability. Except as specifically provided in
this Article 16.00, there shall be no reduction of Rent and Landlord shall have
no liability to Tenant by reason of any injury to or interference with Tenant's
business or property arising from fire or other casualty, howsoever caused, or
from the making of any repairs resulting therefrom in or to any portion of the
Building or the Premises. Notwithstanding anything contained herein, Rent
payable by Tenant hereunder shall not be abated, if the damage is caused by any
act or omission of Tenant, its agents, servants, employees or any other person
entering upon the Premises under express or implied invitation of Tenant.
ARTICLE XVII TRANSFERS BY LANDLORD
17.01 Sales, Conveyance and Assignment. Nothing in this Lease shall restrict the
right of Landlord to sell, convey, assign or otherwise deal with the Building,
subject only to the rights of Tenant under this Lease.
17.02 Effect of Sale, Conveyance or Assignment. A sale, conveyance or assignment
of the Building shall operate to release Landlord from liability from and after
the effective date thereof upon all of the covenants, terms and conditions of
this Lease, express or implied, except as such may relate to the period prior to
such effective date, and Tenant
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shall thereafter look solely to Landlord's successor in interest in and to this
Lease. This Lease shall not be affected by any such sale, conveyance or
assignment, and Tenant shall attom to Landlord's successor in interest
thereunder.
17.03 Subordination. This Lease is and shall be subject and subordinate in all
respects to any and all mortgages and deeds of trust now or hereafter placed on
the Building or Land, and to all renewals, modifications, consolidations,
replacements and extensions thereof.
17.04 Attornment. Subject to Article 17.05, if the interest of Landlord is
transferred to any person (herein called "Purchaser") by reason of foreclosure
or other proceedings for enforcement of any such mortgage or deed of trust, or
by delivery of a deed in lieu of such foreclosure or other proceedings, Tenant
shall immediately and automatically attorn to Purchaser.
17.05 Non-disturbance. No attornment by Tenant under Article 17.04 shall be
effective unless before the date of transfer to Purchaser, Purchaser delivers to
Tenant a written undertaking, binding upon Purchaser and enforceable by and for
the benefit of Tenant under applicable law, that this Lease and Tenant's rights
hereunder shall continue undisturbed while Tenant is not in default despite such
enforcement proceedings and transfer.
17.06 Effect of Attornment. Upon attornment under Article 17.04 this Lease shall
continue in full force and effect as a direct lease between Purchaser and
Tenant, upon all of the same terms, conditions and covenants as are set forth in
this Lease except that, after such attornment, Purchaser shall not be:
(a) liable for any act or omission of Landlord, or,
(b) subject to any offsets or defenses which Tenant might have against
Landlord, or,
(c) bound by any prepayment by Tenant of more than one month's installment of
Rent, or by any previous modification of this Lease, unless such
prepayment or modification shall have been approved in writing by
Purchaser or any predecessor in interest except Landlord.
17.07 Execution of Instruments. The subordination and attornment provisions of
this Article 17.00 shall be self-operating and except as set out in Article
17.05 no further instrument shall be required. Nevertheless Tenant, on request
by and without cost to Landlord or any successor in interest, shall execute and
deliver any and all instruments further evidencing such subordination and (where
applicable hereunder) attornment.
ARTICLE XVIII NOTICES, ACKNOWLEDGEMENT
AUTHORITIES FOR ACTION
18.01 Notices. Any notice from one party to the other hereunder shall be in
writing and shall be deemed duly served if delivered personally to a responsible
employee of the party being served, or if mailed by registered or certified mail
addressed to Tenant at the Premises (whether or not Tenant has departed from,
vacated or abandoned the same) or the Landlord at the place from time to time
designated by the Landlord. Any notice shall be deemed to have been given at the
time of personal delivery or, if mailed, seven (7) days after the date of
mailing thereof. Either party shall have the right to designate by notice, in
the manner above set forth, a different address to which notices are to be
mailed.
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18.02 Acknowledgements. The Tenant shall at any time and from time to time upon
not less than twenty (20) days prior notice from the Landlord execute,
acknowledge and deliver a written statement certifying that:
(a) this Lease is in full force and effect, subject only to such modifications
(if any) as may be set out therein,
(b) Tenant is in possession of the Premises and paying Rent as provided in
this Lease,
(c) the dates (if any) to which Rent is paid in advance, and,
(d) that there are not, to such party's knowledge, any defaults on the part of
either party hereunder, or specifying such defaults if any are claimed.
Any such statement may be relied upon by any prospective transferee or
encumbrance of all or any portion of the Building, or any assignee of any
such persons. If Tenant fails to timely deliver such statement, Tenant
shall be deemed to have acknowledged that this Lease is in full force and
effect, without modification except as may be represented by Landlord, and
that there are no uncured defaults in Landlord's performance.
18.03 Authorities for Action. Landlord may act in any matter provided for herein
by its Property Manager and any other person who shall from time to time be
designated by Landlord by notice to Tenant. Tenant shall designate in writing
one or more persons to act on its behalf in any matter provided for herein and
may from time to time change, by notice to Landlord, such designation. In the
absence of any such designation, the person or persons executing this Lease for
Tenant shall be deemed to be authorized to act on behalf of Tenant in any matter
provided for herein.
ARTICLE XIX DEFAULT
19.01 Costs and Charges. Tenant shall indemnify Landlord against all cost and
charges (including legal fees) lawfully and reasonably incurred in enforcing
payment of overdue Rent and in obtaining possession of the Premises after
default of Tenant or upon expiration or early termination of the Term of this
Lease or in enforcing any covenant proviso or agreement of Tenant herein
contained.
19.02 Right of Landlord to Perform Covenants. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant, at Tenant's sole cost and expense, and without any abatement of Rent. If
Tenant shall fail to perform any act on its part to be performed hereunder, and
such failure shall continue for ten (10) days after notice thereof from
Landlord, Landlord may (but shall not be obligated to do so) perform such act
without waiving or releasing Tenant from any of its obligations relative
thereto. All sums paid or costs incurred by Landlord in so performing such acts
under this Article 19.02, together with interest thereon at the rate set out in
Article 19.01 from the date each such payment was made or each sum cost incurred
by Landlord, shall be payable by Tenant to Landlord on demand.
19.03 Events of Default. If and whenever:
(a) part or all of the Rent hereby reserved is not paid when due, and such
default continues for seven (7) days after the due date thereof,
(b) the Term or any goods, chattels or equipment of Tenant is attached under
any court order or if a writ of execution is issued against Tenant, or,
16
(c) Tenant becomes insolvent or commits an act of bankruptcy or becomes
bankrupt or takes the benefit of any statute that may be in force for
bankrupt or insolvent debtors or becomes involved in voluntary or
involuntary winding-up proceedings or if a receiver shall be appointed for
the business, property, affairs or revenues of Tenant, or,
(d) Tenant makes a bulk sale of its goods or moves or commences, attempts or
threatens to move its goods, chattels and equipment out of the Premises
(other than in the normal course of its business) or ceases to conduct
business from the Premises, or,
(e) Tenant fails to observe, perform and keep each and every of the covenants,
agreements, provisions, stipulations and conditions herein contained to be
observed, performed and kept by Tenant (other than payment of Rent) and
persists in such failure after ten (10) days written notice by Landlord
requiring that Tenant remedy, correct, desist or comply (or if any such
breach would reasonably require more than ten (10) days to rectify, unless
Tenant commences rectification within the ten (10) day notice period and
thereafter promptly and effectively and continuously proceeds with the
rectification of the breach), then and in any of such cases, at the option
of Landlord, the full amount of the current month's and the next ensuing
three (3) months installments of Annual Rent shall immediately become due
and payable and Landlord may immediately distain for the same, together
with any arrears then unpaid; and Landlord may without notice or any form
of legal process forthwith re-enter upon and take possession of the
Premises or any part thereof in the name of the whole and remove and sell
Tenant's goods, chattels and trade fixtures therefrom, any rule of law or
equity to the contrary notwithstanding; and Landlord may seize and sell
such goods, chattels and equipment of Tenant as are in the Premises and
may apply the proceeds thereof to all Rent and other payments to which
Landlord is then entitled under this Lease. Any such sale may be effected
in the discretion of Landlord by public auction or otherwise, and either
in bulk or by individual item, or partly by one means and partly by
another all as Landlord in its entire discretion may decide. If any of
Tenant's property is disposed of as provided in this Article 19.03, ten
(10) days prior notice to Tenant of disposition shall be deemed to be
commercially reasonable.
19.04 Waiver of Exemption and Redemption. Notwithstanding anything contained in
any statute now or hereafter in force limiting or abrogating the right of
distress, none of Tenant's goods, chattels or trade fixtures on the Premises at
any time during the continuance of the Term shall be exempt from levy by
distress for Rent in arrears, and upon any claim being made for such exemption
by Tenant or on distress being made by Landlord this agreement may be pleaded as
an estoppel against Tenant in any action brought to test the right to the
levying upon any such goods as are named as exempted in any such statute, Tenant
hereby waives all and every benefit that could or might have accrued to Tenant
under and by virtue of any such statute but for this Lease. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Landlord obtaining possession of the Premises, by
reason of the violation by Tenant of any of the terms or conditions of this
Lease or otherwise.
19.05 Surrender. If and whenever Landlord is entitled to or does re-enter,
Landlord may terminate this Lease by giving notice thereof, and in such event
Tenant shall forthwith vacate and surrender the Premises.
17
19.06 Payments. If Landlord shall re-enter or if this Lease shall be terminated
hereunder, Tenant shall pay to Landlord on demand:
(a) Rent up to the time of re-entry or termination, whichever shall be the
later, plus accelerated rent as herein provided, and,
(b) all expenses incurred by Landlord in performing any of Tenant's
obligations under this Lease, re-entering or terminating and re-letting,
collecting sums due or payable by Tenant, realizing upon assets seized
(including brokerage, legal fees and disbursements), and the expense of
keeping the Premises in good order, repairing the same and preparing them
for re-letting, and,
(c) as damages for the loss of income of Landlord expected to be derived from
the Premises, the amounts (if any) by which the Rent which would have been
payable under this Lease exceeds the payments (if any) received by
Landlord from other tenants in the Premises, payable on the first day of
each month during the period which would have constituted the unexpired
portion of the Term had it not been terminated, or if elected by Landlord
by notice to Tenant at or after re-entry or termination, a lump sum amount
equal to the Rent which would have been payable under this lease from the
date of such election during the period which would have constituted the
unexpired portion of the Term had it not been terminated, reduced by the
rental value of the Premises for the same period, established by reference
to the terms and conditions upon which Landlord re-lets them if such
re-letting is accomplished within a reasonable period after termination,
and otherwise established by reference to all market and other relevant
circumstances: Rent and rental value being reduced to present worth at an
assumed interest rate of ten percent (10%) on the basis of Landlord's
estimates and assumptions of fact which shall govern unless shown to be
erroneous.
19.07 Remedies Cumulative. No reference to no exercise of any specific right or
remedy by Landlord shall prejudice or preclude Landlord from exercising or
invoking any other remedy in respect thereof, whether allowed at law or in
equity or expressly provided for herein. No such remedy shall be exclusive or
dependent upon any other such remedy, but Landlord may from time to time
exercise any one or more of such remedies independently or in combination.
ARTICLE XX EVENTS TERMINATING LEASE
20.01 If any policy of the insurance from time to time effected by the Landlord
upon the Building of which the Premises form a part shall be cancelled or about
to be cancelled by the insurer by reason of the use or occupation of the leased
premises by the Tenant or any assignee, subtenant or licensee of the Tenant or
anyone permitted by Tenant to be upon the premises and the Tenant after receipt
of written notice from the Landlord shall have failed to forthwith take such
steps in respect of such use or occupation as shall enable the Landlord to
re-instate or avoid cancellation of such policy of insurance, the Landlord may
at its option terminate this lease by leaving upon the Premises notice in
writing of such termination.
20.02 Prohibited Occupancy. If, without the written consent of the Landlord, the
Premises shall be used by any persons other than the Tenant or its permitted
assigns or subtenants or for any purposes other than that for which they were
leased, or occupied by any persons whose occupancy is prohibited by this Lease,
or if the Premises shall be vacated or abandoned, or remain unoccupied for
fifteen (15) days or more while capable of
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being occupied, or if the term or any of the goods and chattels of the Tenant
shall at any time be seized in execution or attachment or if the Tenant is a
corporation and shall take any steps or suffer any order to be made for its
winding up or other termination of its corporate existence, then in any such
case the Landlord may, at its option, terminate this Lease by leaving upon the
Premises notice in writing of such termination and thereupon, and in addition to
the payment by the Tenant of Rent and other payment for which the Tenant is
liable under this Lease, Rent for the current month and the next ensuing three
(3) months rent shall immediately become due and be paid by the Tenant.
ARTICLE XXI MISCELLANEOUS
21.01 Relationship of Parties. Nothing contained in this Lease shall create any
relationship between the parties hereto other than that of landlord and tenant,
and it is acknowledged and agreed that Landlord does not in any way or for any
purpose become a partner of Tenant in the conduct of its business, or a joint
venturer or a member of a joint or common enterprise with Tenant.
21.02 Consent Not Unreasonably Withheld. Except as otherwise specifically
provided, whenever consent or approval of Landlord or Tenant is required under
the terms of this Lease, such consent or approval shall not be unreasonably
withheld or delayed. Tenant's sole remedy if Landlord unreasonably withholds or
delays consent or approval shall be an action for specific performance, and
Landlord shall not be liable for damages. If either party withholds any consent
or approval, such party shall on written request deliver to the other party a
written statement giving the reasons therefor.
21.03 Name of Building. Landlord shall have the right, after thirty (30) days
notice to Tenant to change the name, number or designation of the Building,
during the Term without liability to Tenant.
21.04 Applicable Law and Construction. This Lease shall be governed by and
construed under the laws of the jurisdiction in which the Building is located,
and its provisions shall be construed as a whole according to their common
meaning and not strictly for or against Landlord or Tenant. The words Landlord
and Tenant shall include the plural as well as the singular. If this Lease is
executed by more than one tenant, Tenants' obligations hereunder shall be joint
and several obligations of such executing tenants. Time is of the essence in
this Lease and each of its provisions. The captions of the Articles are included
for convenience only, and shall have no effect upon the construction or
interpretation of this Lease.
21.05 Entire Agreement. If there are any terms and conditions which at the date
of execution of this Lease are additional or supplemental to those set out on
the preceding pages and in Exhibits A, B, and C, such terms and conditions are
contained in Exhibit D attached hereto as part of this Lease. This Lease
contains the entire agreement between the parties hereto with respect to the
subject matter of this Lease. Tenant acknowledges and agrees that it has not
relied upon any statement, representation, agreement or warranty except such as
are set out in this Lease. If this Lease is made pursuant to an accepted Offer
to Lease, then the term "Lease" in this Article 21.05 shall be deemed to include
such accepted Offer to Lease, and such accepted offer shall survive execution of
this Lease, save that to the extent there is conflict between this Lease and
such accepted Offer to Lease, the provision of this Lease shall prevail.
21.06 Amendment or Modification. Unless otherwise specifically provided in this
Lease, no amendment, modification, or supplement to this Lease shall be valid or
binding
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unless set out in writing and executed by the parties hereto in the same manner
as the execution of this Lease.
21.07 Construed Covenants and 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 Article hereof. Should
any provision of this Lease be or become invalid, void, illegal or not
enforceable, it shall be considered separate and severable from the Lease and
the remaining provisions shall remain in force and be binding upon the parties
hereto as though such provision had not been included.
21.08 No Implied Surrender or Waiver. No provisions of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in writing signed
by Landlord. Landlord's waiver of a breach of any term or condition of this
Lease shall not prevent a subsequent act, which would have originally
constituted a breach, from having all the force and effect of any original
breach. Landlord's receipt of Rent with knowledge of a breach by Tenant of any
term or condition of this Lease shall not be deemed a waiver of such breach.
Landlord's failure to enforce against Tenant or any other tenant in the Building
any of the Rules and Regulations made under Article 14.00 shall not be deemed a
waiver of such Rules and Regulations. No act or thing done by Landlord, its
agents or employees during the Term shall be deemed an acceptance of a surrender
of the Premises, and no agreement to accept a surrender of the Premises shall be
valid, unless in writing signed by Landlord. The delivery of keys to any of
Landlord's agents or employees shall not operate as a termination of this Lease
or a surrender of the Premises. No payment by Tenant, or receipt by Landlord, of
a lesser amount than the Rent due hereunder shall be deemed to be other than on
account of the earliest rent to fail due of any unpaid installment of rent, nor
shall any endorsement or statement on any cheque or any letter accompanying any
cheque, or payment as Rent, be deemed an accord and satisfaction, and Landlord
may accept such cheque or payment without prejudice to Landlord's right to
recover the balance of such Rent or pursue any other remedy available to
Landlord.
21.09 Tenant agrees with Landlord not to register this lease but the Tenant
shall have the right to register Notice of the Lease which the Landlord agrees
to execute in such form as the Landlord shall have approved at the Tenant's
expense.
21.10 Area Determination. All calculations of area for the purposes of this
Lease will be effected by Landlord on such reasonable basis as Landlord shall
determine. If any calculation or determination by the Landlord of the common
area or rentable area of any premises is disputed or called into question, it
shall be calculated or determined by the Landlord's architect from time to time
appointed for the purpose, whose certificate shall be conclusive.
21.11 Successors Bound. Except as otherwise specifically provided, the
covenants, terms, and conditions contained in this Lease shall apply to and bind
the heirs, successors, executors, administrators and assigns of the parties
hereto.
21.12 Environment. The Tenant warrants that neither the Premises nor any other
part of the Building or Land will be used in any manner which will deposit in,
add to, emit or discharge into the natural environment or into the Building or
Land, any contaminant, including any solid, liquid, gas, odour, heat, sound,
vibration, radiation, or a combination thereof, resulting directly or indirectly
from the activities of the Tenant or its subtenants, assignees, agents,
contractors, invitees, or licensees which:
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(a) impairs the quality of the natural environment or the Building or the
Building's systems;
(b) causes damage to property, plant, or animal life;
(c) causes material discomfort or harm to any person;
(d) adversely impairs the health or safety of any person;
(e) renders any property, plant or animal life unfit for human use; or
(f) interferes with the normal conduct of business.
The Tenant will neither construct, alter or replace any structure, equipment,
apparatus, or mechanism which may emit or discharge any contaminant into any
part of the natural environment or the Building or Land nor alter any process or
rate of production with the result that a contaminant may be emitted or
discharged into the natural environment or the Building or Land without first
obtaining a Certificate of Approval for the methods or devices to be used to
control the emission or discharge from a Director appointed by the Ministry of
the Environment pursuant to Section 4 of the Environmental Protection Act,
R.S.O. c. 141, and providing a copy and obtaining a receipt therefore from the
Landlord.
The Tenant shall at the date of termination of this Lease, remove at its sole
cost and expense any and all waste resulting from the Tenant's use and
occupation of the Premises including, without limitation, ashes, garbage,
refuse, industrial or domestic waste.
The Tenant shall comply at all times with the provisions of the Environmental
Protection Act, R.S.O., 1980, c. 141, including any and all regulation made from
time to time pursuant to Section 146 c (iii) and any amendments thereto.
The Tenant agrees to indemnify the Landlord against any costs or expenses of any
nature arising as a result of any use or condition caused by the Tenant, after
Commencement Date, of the Building or Land violating any applicable federal,
provincial, municipal, or local laws, regulations, orders or approvals of
authorities having jurisdiction over environmental matters or arising as a
result of the Tenant's failure to comply with any of the provision of this
Section 21.12. The Tenant's obligations as set out in this Section 21.12 shall
survive the expiry or earlier termination of this Lease.
21
IN WITNESS WHEREOF the parties hereto have executed this indenture by affixing
their corporate seals by their authorized officers in that behalf, or by
Tenant's signature hereto, as the date first above written.
Witness LANDLORD:
448048 ONTARIO INC. and FIRST UNITED REAL
ESTATE INVESTORS INC. (a Joint Venture
operating as 0000 XXXXX XXXXXX)
/s/ Per: /s/
------------------------ -------------------------------------
Name:
Per: /s/
-------------------------------------
Name: Brigs
We have authority to bind the Corporation.
TENANT:
IMI INTERNATIONAL MEDICAL INNOVATIONS INC.
/s/ Per: /s/ Xxxxx Xxxxxx
------------------------ -------------------------------------
Name: Xxxxx Xxxxxx
Per: _____________________________________
Name:
We have authority to bind the Corporation.
22
Appendix "A"
[Map of floor plan]
00
XXXXXXX "X (x)"
LANDLORD'S WORK
The Landlord at its own expense, shall conduct the following work in the
Premises (the Landlord's Work"):
1. Supply and install standard base building standard carpet (minimum 28oz.)
in the Premises, carpet to the selected by the Landlord and approved by the
Tenant;
2. Paint the entire Premises, colours to be selected by the Landlord;
3. Construct a maximum of six (6) offices and one (1) storage room with base
building doors and frames in the Premises, space plan to be finalized
between the Landlord and the Tenant:
4. Conduct all HVAC and lighting adjustments to the Premises as required under
the final space plan;
5. Supply an install a maximum of ten (10) base building electrical outlets in
the Premises.
TENANT'S WORK
None.
EXHIBIT "X (xx)"
0000 XXXXX XXXXXX--XXXXX DESCRIPTION
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the City of North York, in the Municipality of Metropolitan
Toronto and being composed of Xxxx 00, 00, 00 xxx 00 Xxxx 0000 filed in the Land
Registry Office for the Registry Division of Toronto Boroughs (No. 64) and part
of Xxx 00, Xxxxxxxxxx 0, Xxxx xx Xxxxx Xxxxxx, all of which is now designated as
Parts 2, 3, 9, and 10 on Plan 64R-8887 deposited in the Land Registry Office.
SUBJECT to an easement in favour of the Municipality of Metropolitan
Toronto over the said Parts 3 and 9 on Plan 64R-8887 being a permanent
sub-surface easement or right in the nature of an easement on, under and across
the said parts as more particularly set forth in the registered Instrument No.
537301 North York.
24
EXHIBIT "B"
LEASE OF OFFICE SPACE
SECTION 1.00 WORDS AND PHRASES
1.01 Definitions In this Lease, including this Exhibit:
(a) "Architect" means such firm of professional architects or
engineers as Landlord may from time to time engage for
preparation of construction drawings for the building or for
general supervision of architectural and engineering aspects
and operations thereof and includes any consultant(s) from
time to time appointed by Landlord or the Architect whenever
such consultant(s) is acting within the scope of his
appointment and specialty.
(b) "Common Areas" means at any time those portions of the Land
and Building which are not leased or designated for lease to
tenants but are provided to and used in common by Landlord,
Tenant, and other tenants of the Building or by their
sublessees, agents, employees, customers or licensees,
whether or not the same are open to the general public, and
shall include any fixtures, chattels, systems, decor, signs,
facilities, or landscaping contained therein or maintained
or used in connection therewith, and shall be deemed to
include the city sidewalks adjacent to the Land and any
pedestrian walkway system, park, or other public facility in
respect of which Landlord is from time to time subject to
obligations in its capacity as owner or tenant of the Land
and/or Building as same may be altered, expanded, reduced or
improved from time to time by Landlord in its discretion.
(c) "Section" means a section of the Lease, including all
Exhibits and Schedules attached hereto.
(d) "Normal Business Hours" Except as otherwise specifically
provided in this Lease, normal business hours for the
Building shall be from 8:00 am. to 6:00 p.m. Monday through
Friday, excluding days which are legal or statutory holidays
in the jurisdiction in which the Building is located.
SECTION 2.00 DETERMINATION OF OCCUPANCY COST
2.01 Definitions In this Section 2.
(a) "Taxes" means the aggregate of all taxes, rates, charges,
levies, and assessments including local improvements
accruing in respect of the calendar year in which the Fiscal
Year begins and imposed by any competent authority upon or
in respect of the Land and Building including any tax
imposed on the capital invested therein and business tax,
including Commercial Concentration Tax and Goods and
Services Tax, levied against the Landlord in its capacity as
Landlord. In determining Taxes, any corporate income,
profits or excess profit taxes imposed upon the income of
Landlord and any other impost of a personal nature charged
or levied against Landlord shall be excluded, except to the
extent that such is levied in lieu of
25
taxes, rates, charges, or assessments in respect of the Land
or improvements thereon.
(b) "HVAC Cost" means the costs in the Fiscal Year for the
operation, repair, and maintenance of the systems for
heating, ventilating, and air conditioning the Building.
(c) "Square Feet in the Building" means 161,557 rentable square
feet, provided that if from time to time there is a material
change in the rentable area of the Building, the Square Feet
in the Building shall, until any further change, mean the
number of rentable square feet in the Building determined on
the basis set out in Article 21.10 of the Lease, on
completion of that change.
(d) "Square Feet in the Premises" means approximately 2,309
rentable square feet.
2.02 Occupancy Costs Occupancy Costs for any Fiscal Year shall be an
amount equal to Operating Cost in respect of such Fiscal Year
multiplied by the rentable Square Feet in the Premises.
2.03 Determination of Operating Cost "Operating Cost" means an amount
per rentable square foot in respect of a Fiscal Year (calculated
to the nearest cent) established in accordance with generally
accepted accounting principles and confirmed in a certificate of
Landlord, and equal to the sum of the following costs, divided by
the Square Feet in the Building:
(a) all net costs, charges, and expenses which arise out of the
operation, maintenance, repair and replacement of the Land
and Building, to the standards of a prudent landlord,
including without limitation Taxes, insurance and HVAC Costs,
and wages and salaries of all persons employed to operate,
repair, manage and maintain the Building, and including all
capital improvements to the Building, including all
machinery, equipment, facilities, systems and fixtures
located therein (with costs of a capital nature being
depreciated or amortized over the useful life of the
improvement and the depreciated or amortized amount and
interest being included);
(b) all net expenses after the date any space in the Building was
first occupied by any tenant and properly allocable to such
Fiscal Year for any capital improvement or structural repair
to the Building required by any change in the laws, rules,
regulations or orders or any governmental or
quasi-governmental authority having jurisdiction or incurred
to reduce any item of cost or expense, which costs or
expenses shall be depreciated or amortized over the useful
life of the capital improvement or structural repair, and the
depreciated or amortized amount and interest being included;
and
(c) a charge for offsite management overhead equal to fifteen
percent (15%) of the sum of 2.03 (a) and (b) in such Fiscal
Year.
2.04 Limitation on Operating Cost In determining Operating Cost, the
cost (if any) of the following shall be excluded except as
specifically provided in Section 2.03:
26
(a) capital tax:
(b) depreciation or amortization of the Building or any component
of it (except for replacement cost of equipment or any items
requiring periodic replacement);
(c) ground rent (if any), depreciation, amortization, and interest
on and capital retirement of debt: and,
(d) tenant improvements and leasing commissions.
2.05 When Services Are Not Provided Notwithstanding Section 2.03, when
and if any service (such as janitor service) which is normally
provided by Landlord to tenants of the Building in their premises:
(a) is not provided by Landlord in the Premises under the specific
terms of this Lease, in determining Occupancy Costs for Tenant
hereunder the cost of such service (except as it relates to
Common Areas) shall be excluded, and,
(b) is not provided by Landlord in a significant portion of the
Building, in determining Occupancy Costs for Tenant hereunder
the cost of such service shall be divided by the difference
between the Square Feet in the Building and the number of
rentable square feet (determined on the basis set out in
Section 3.01 of Exhibit B) in the Building in which Landlord
does not provide such service.
2.06 Partial Fiscal Year If the Term commences after the beginning of or
terminates before the end of a Fiscal Year, any amount payable by
Tenant under Section 2.02 shall be adjusted proportionately.
SECTION 3.00 MIXED OFFICE/RETAIL BUILDINGS
3.01 Should the Building combine a retail concourse and Office floors
and any Operating Cost be incurred in respect of both component
areas the Operating Cost shall be determined separately for each
component area and operating costs for the office floors shall
comprise:
(a) costs that are identifiable and separable as relating to the
office floors alone, and,
(b) percentage of costs that are identifiable as relating to both
component areas, and to the extent such cost relates to each
area and is inseparable between the areas.
SECTION 4.00 LOADING AND UNLOADING
4.01 The delivery and shipping of merchandise, supplies, fixtures, and
other materials or goods of whatsoever nature to or from the
Premises and all loading, unloading, and handling thereof shall be
done only at such times, in such areas, by such means, and through
such elevators, entrances, malls, and corridors as are designated
by Landlord.
4.02 Landlord accepts no liability and is hereby relieved and released
by Tenant in respect of the operation of delivery facilities for
the Building, or the
27
adequacy thereof, or of the acts or omissions of any person or
persons engaged in the operation thereof, or in the acceptance,
holding, handling, delivery or dispatch, or failure of any
acceptance, holding, handling or dispatch, or any error,
negligence or delay therein.
4.03 Landlord may from time to time make and amend regulations for
the orderly and efficient operation of the delivery facilities
for the Building, and may require the payment of reasonable and
equitable charges for delivery services and demurrage provided
by Landlord.
SECTION 5.00 UTILITY CHARGES AND SERVICES
5.01 Notwithstanding the provisions of Article 6.02 (c) and (e) of
this Lease, during Term electricity provided to the Premises
(except that required for heating, ventilating, and air
conditioning other than supplemental heating, ventilating and
air conditioning equipment) shall be at Tenant's expense.
5.02 If electricity to the Premises is not separately metered but is
supplied to Tenant through a meter common to other tenants in
the Building, Landlord shall pay the costs of such electricity
and apportion such costs pro rata among all those tenants
supplied through the common meter based on the proportion of
each tenants' floor space to the aggregate of floor space of
all the tenants so supplied. Upon receipt of Landlord's
statement of such apportionment, Tenant shall pay to Landlord
the amount shown on such statement. If Landlord shall from time
to time reasonably determine that the use of any electricity in
the Premises is disproportionate to the use of other tenants,
Landlord may adjust Tenant's share of the cost thereof from a
date reasonably determined by Landlord to take equitable
account of the disproportionate use.
5.03 Landlord may elect by notice to Tenant:
(a) to estimate the amounts for which Tenant is liable under
Section 6.02, and,
(b) to require Tenant to pay those amounts in monthly
installments at the times and in the manner provided under
this Lease for Base Rent.
5.04 Notwithstanding the provisions of Article 6.04 of this Lease,
the Tenant shall pay to Landlord upon receipt of Landlord's
statement a reasonable amount in respect of replacement of
building standard fluorescent tubes, light bulbs, and ballasts
in the Premises as required from time to time and of the costs
of cleaning, maintaining, and servicing of the electric
lighting fixtures in the Premises. Landlord's costs shall be
reasonable and consistent for all tenants of the Building
including Tenant.
28
EXHIBIT "C"
RULES AND REGULATIONS
1. Security Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, any persons occupying,
using or entering the same, or any equipment, finishings or contents thereof,
and Tenant shall comply with Landlord's reasonable requirements relative
thereto.
2. Locks Landlord may from time to time install and change locking
mechanisms on entrances to the Building, common areas thereof, and the Premises,
and (unless 24 hour security is provided by the Building) shall provide to
Tenant reasonable number of keys and replacements therefor to meet the bona fide
requirements of Tenant. In these rules "keys" include any device serving the
same purpose. Tenant shall not add to or change existing locking mechanisms on
any door in or to the Premises without Landlord's prior written consent. If with
Landlord's consent, Tenant installs lock(s) incompatible with the Building
master locking system:
(a) Landlord, without abatement of Rent, shall be relieved of any obligation
under the Lease to provide any service to the affected areas which
require access thereto,
(b) Tenant shall indemnify Landlord against any expense as a result of
forced entry thereto which may be required in an emergency, and,
(c) Tenant shall at the end of the Term and at Landlord's request remove
such lock(s) at Tenant's expense.
3. Return of Keys At the end of the Term, Tenant shall promptly return to
Landlord all keys for the Building and Premises which are in possession of
Tenant.
4. Windows Tenant shall observe Landlord's rules with respect to maintaining
window coverings at all windows in the Premises so that the Building presents a
uniform exterior appearance, and shall not install any window shade screens,
drapes, covers or other materials on or at any window in the Premises without
Landlord's prior written consent. Tenant shall ensure that window coverings are
closed on all windows in the Premises while they are exposed to the direct rays
of the sun.
5. Repair, Maintenance, Alterations and Improvements Tenant shall carry out
Tenant's repair, maintenance, alterations and improvements in the Premises only
during times agreed to in advance by Landlord and in a manner which will not
interfere with the rights of other tenants in the Building.
6. Water Fixtures Tenant shall not use water fixtures for any purpose for
which they are not intended, nor shall water be wasted by such fixtures. Any
cost or damage resulting from such misuse by Tenant shall be paid for by Tenant.
7. Personal Use of Premises The Premises shall not be used or permitted to be
used for residential, lodging or sleeping purposes or for the storage of
personal effects or property not required for business purposes.
8. Heavy Articles Tenants shall not place in or move about the premises,
without Landlord's prior written consent, any safe or other heavy articles
which, in
29
Landlord's reasonable opinion, may damage the building and Landlord may
designate the location of any heavy articles in the premises.
9. Carpet Pads In those portions of the Premises where carpet has been
provided directly or indirectly by Landlord, Tenant shall at its own expense
install and maintain pads to protect the carpet under all furniture having
casters other than carpet casters.
10. Bicycles, Animals Tenant shall not bring any animals or birds into the
Building, and shall not permit bicycles or other vehicles inside or on the
sidewalks outside the Building except in areas designated from time to time by
Landlord for such purposes.
11. Deliveries Tenant shall ensure that deliveries of materials and goods to
the Premises are made through such entrances, elevators and corridors and at
such times as may from time to time be designated by Landlord, and shall
promptly pay or cause to be paid to Landlord the cost of repairing any damage in
the Building caused by any person making such deliveries.
30
EXHIBIT "C" TWO
12. Furniture and Equipment Tenant shall ensure that furniture and equipment
being moved into or out of the Premises is moved through such entrances,
elevators and corridors and at such times as may from time to time be designated
by Landlord, and by movers or a moving company approved by Landlord and shall
promptly pay or cause to be paid to Landlord the cost of repairing any damage in
the Building caused thereby.
13 Solicitations Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
14 Food and Beverages Only persons approved from time to time by Landlord
may prepare, solicit orders for, sell, serve and distribute foods or beverages
in the Building, or use the elevators, corridors or common areas for any such
purpose. Except with Landlord's prior written consent and in accordance with
arrangements approved by Landlord, Tenant shall not permit on the Premises the
use of equipment for dispensing food or beverages or for the preparation,
solicitation of orders for sale, serving or distribution of food or beverages.
Tenant may operate a coffee beverage machine for its own employee consumption.
15. Refuse Tenant shall place all refuse in proper receptacles provided by
Tenant at its expense in the Premises or in receptacles (if any) provided by
Landlord for the Building, and shall keep sidewalks and driveways outside the
Building, and lobbies, corridors, stairwells, ducts and shafts of the Building,
free of all refuse.
16. Obstructions Tenant shall not obstruct or place anything in or on the
sidewalks or driveways outside the Building or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations for any
purpose except access to and exit from the Premises without Landlord's prior
written consent. Landlord may remove at Tenant's expense any such obstruction or
thing (unauthorized by Landlord) without notice or obligation to Tenant.
17. Dangerous or Immoral Activities Tenant shall not make any use of the
Premises which involves the danger of injury to any person, not shall the same
be used for any immoral purpose.
18. Proper Conduct Tenant shall not conduct itself in any manner which is
inconsistent with the character of the Building as a first quality building or
which will impair the comfort and convenience of other tenants in the Building.
19. Employees, Agents and Invitees In these Rules and Regulations, Tenant
includes the employees, agents, invitees and licensees of Tenant and others
permitted by Tenant to use or occupy the Premises.
31
EXHIBIT "D"
SUPPLEMENTAL TERMS AND CONDITIONS
---------------------------------
1) BASE RENT
The Tenant shall pay to the Landlord as Base Rent for the Premises the
following sum of monies per annum in respect of the Term stated. The sum
of monies is payable in advance without deductions in equal monthly
installments, payable on the Commencement Date and on the first day of
each calendar month. The sum shall be adjusted accordingly should the
certificate of the Landlord's architect now or thereafter, disclose a
variation in the area stated herein.
YEARS PER ANNUM PER MONTH NET RATE
(per sq. ft.)
1-2 $34,635.00 $2886.25 $15.00
3 $36,944.00 $3078.67 $16.00
4-5 $41,562.00 $3463.50 $18.00
2) NET LEASE
It is the intention of parties that save as otherwise provided herein the
Lease shall be on a net basis, carefree to the Landlord.
3) POST-DATED CHEQUES
Upon request by the Landlord at any time throughout the Term of the
Lease, the Tenant shall submit post-dated cheques towards the payment of
all Base Rent and Additional Rent as required and due under the Lease.
4) CONDITIONS TO TENANT'S RIGHTS
Provided:
a) the Tenant pays the Rent and other sums payable hereunder and
performs each and every of the covenants, provisos and agreements
herein contained on the part of the Tenant to be paid and
performed, punctually and in accordance with the provisions of
this Lease;
b) the Tenant has not become insolvent or bankrupt, and has not made
any assignment for the benefit of creditors and has not, becoming
bankrupt or insolvent, taken the benefit of any Act now or
hereafter in force for bankrupt or insolvent debtors;
c) a petition in bankruptcy has not been filed against the Tenant,
and no proceedings have been commenced respecting the winding-up
or termination of the existence of the Tenant;
d) no receiver or other person has taken possession or effective
control of the assets or business of the Tenant or a substantial
portion thereof pursuant to
32
any security or other agreement or by any other means whatsoever,
and there are no outstanding writs of execution against the
Tenant;
e) The Tenant has not assigned the Lease or sublet or permitted a
change in occupancy of any portion or portions of the Premises,
and there has been no change in ownership of the majority of the
capital stock of the Tenant and no change in the name under which
the business on the Premises is conducted; and
f) The Tenant has continuously occupied all of the Premises for the
conduct of business in accordance with the terms of this Lease;
then and only then shall the rights conferred under Section 5 of this
Exhibit D be applicable.
33
EXHIBIT "D" - TWO
5) OPTION TO EXTEND
a) Subject to the conditions outlined in the Landlord's standard
Lease document, the Tenant shall have the right to extend this
Lease for a further term of Five (5) years after the expiry of the
Lease Term (the "Extension Term"). Such extension shall be on the
terms and conditions of the Landlord's then current standard form
of lease for the Building, and (i) there shall be no further right
to extend after the expiry of the Extension Term, (ii) the Base
Rent shall be such increased amount as determined pursuant to
Subsection (b) of this Section, and (iii) there shall be no
tenant's allowance or rent-free period for the Extension Term and
the Premises shall be accepted by the Tenant in "as is" condition
at the commencement of the Extension Term without the Landlord
being required to perform any work. Such extension right shall be
exercisable by notice to the Landlord by not later than six (6)
months, and not earlier than twelve (12) months, prior to the
expiry of the Lease Term hereof, failing which, such right shall
be null and void and forever extinguished.
b) The Base Rent for the Extension Term shall be the greater of (I)
Eighteen Dollars ($18.00) per rentable square foot, and (ii) the
fair market rent for the Premises ("Fair Market Rent"). As used
herein, Fair Market Rent means the annual rental which could
reasonably be obtained by the Landlord for the Premises from a
willing tenant or willing tenants dealing at arms' length with the
Landlord in the market prevailing for a term commencing on the
commencement date of the Extension Term, having regard to all
relevant circumstances including the size and location of the
Premises, the facilities afforded, the terms of the lease thereof
(including its provisions for Additional Rent), the condition of
the Premises and the extent and quality of the improvements
therein (disregarding the Tenant's trade fixtures and also
disregarding any deficiencies in the condition and state of repair
of the Premises as a result of the Tenant's failure to comply with
its obligations hereunder in respect of the maintenance and repair
of the Premises) and having regard to rentals currently being
obtained for space in the Building and for comparable space in
other buildings comparably located. The Fair Market Rent for the
Extension Term shall be as agreed upon between the Landlord and
the Tenant or, failing agreement by the Landlord and the Tenant by
not later than three (3) months prior to the expiry of the Term
hereof, the Fair Market Rent shall be established in the manner
set out in subsection (c) of this section. In the event that the
Base Rent payable during the Extension Term has not been
determined prior to the commencement of the Extension Term, then
until such determination has been made, the Tenant shall pay Base
Rent at a rate equal to one hundred and fifty percent (150%) of
the Base Rent payable during the last year of the original Term
hereof. Upon determination of the Base Rent for the Extension
Term, either Landlord shall pay to the Tenant any excess, or
Tenant shall pay to Landlord any deficiency, in the payments of
Base Rent previously made by the Tenant.
c) Either the Landlord or the Tenant (the "Requesting Party") shall
be entitled to notify the other party hereto (the "Receiving
Party") of the name of an expert for the purpose of determining
the Fair Market Rent. Within fifteen (15) days after such notice
from the Requesting Party, the Receiving Party shall notify the
Requesting Party either approving the expert proposed by the
Requesting Party or naming another expert for the purpose of
determining the Fair Market Rent. Should the Receiving Party fail
to give notice to the Requesting Party within the
34
said fifteen (15) day period, the expert named in the notice given
by the Requesting Party shall perform the expert's functions
hereinafter set forth. If the Landlord and the Tenant are unable
to agree upon the selection of the expert within fifteen (15) days
after such notice from the Receiving Party to the Requesting
Party, then either party shall be entitled to apply to a court to
appoint an expert in the same manner as an arbitrator may be
appointed by a court under the Arbitrations Act of Ontario. The
expert appointed, either by the Landlord and/or the Tenant or by a
court, shall be qualified by education, experience and training to
value real estate for rental purposes in the Province of Ontario
and have been ordinarily engaged in the valuation of real property
in the municipality in which the Building is located for at least
the preceding five (5) years. Within thirty (30) days after being
appointed, the expert shall make a determination of the Fair
Market Rent for the Extension Term, without receiving evidence
from either the Landlord or the Tenant.
35
EXHIBIT "D" - THREE
The cost of such determination of the expert as to the Fair Market Rent
and costs of the procedure shall be shared equally by the Landlord and
the Tenant shall be conclusive and binding upon the Landlord and the
Tenant and not subject to appeal.
6) FIXTURING PERIOD/RENT FREE PERIOD
The Tenant shall be allowed a fixturing period commencing May 15, 2000
until June 30, 2000 (the "Fixturing Period") for the purpose of
modifying leasehold improvements, installing furniture, telephones,
computers and other office equipment and the commencement of business
if desired. The Fixturing Period shall be "gross rent" free whereby the
Tenant shall not be responsible for Base Rent or Occupancy Costs or
Parking during the Fixturing Period.
7) PARKING
a) Throughout the Term, the Tenant shall have the right to use a
maximum of Five (5) spaces for parking Five (5) automobiles (the
"Underground Parking Spaces") in the underground parking facility
(the "Parking Garage"), at the Building in such locations as
designated from time to time by the Landlord or the operator of
the Parking Garage, and subject to the terms set out below. For
each such Underground Parking Spaces, the Tenant shall pay to the
Landlord, the prevailing monthly rates charged for the use of
Underground Parking Spaces, the current monthly rental being
Eighty-Five Dollars ($85.00) per space per month plus applicable
taxes.
b) The Tenant shall ensure that the Landlord is at all times in
possession of up-to-date information as to the owner, license
plate number and description of each automobile authorized to use
such Underground Parking Spaces.
c) The Landlord may from time to time make and amend such rules and
regulations for the management and operation of the Parking Garage
as the Landlord shall determine and the Tenant and all persons
under its control, including without limitation, all users of the
Underground Parking Spaces, shall be bound by and shall comply
with all of such rules and regulations of which notice is given to
the Tenant from time to time and all of such rules and regulations
shall be deemed to be incorporated into and form a part of this
Lease.
d) If the Tenant or any person permitted by the Tenant to use any of
the Underground Parking Spaces fails to comply with the provisions
of this Lease in respect of the Underground Parking Spaces,
including without limitation, the rules and regulations from time
to time applicable to the Parking Garage and the prompt payment of
parking charges as required by the Landlord, then the Landlord
shall have the right to terminate or suspend the privileges of the
offending party to use the Parking Garage, provided that the
exercise of such right by the Landlord shall not limit or affect
the obligation of the Tenant hereunder to pay for all Underground
Parking Spaces.
36
e) No motor vehicle other than a private passenger automobile station
wagon or van shall be parked on or in any part of the Garage, nor
shall any repairs other than emergency repairs immediately
necessary for operation of a vehicle be made to any motor vehicle
in or on the Parking Garage, and no motor vehicle shall be driven
other than on a driveway or in the Parking Garage.
f) It is understood and agreed that the Landlord is not responsible
for theft of or damage to the vehicle or its equipment or articles
left in the vehicle.
g) It is understood and agreed that no vehicle powered by propane,
hydrogen or natural gas are allowed in the Underground Parking
Garage.
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EXHIBIT "D" FOUR
8) SECURITY DEPOSIT
a) The Tenant shall, upon execution of this Lease, deposit with the
Landlord as security for faithful performance and observance by the
Tenant of the terms, provisions, covenants and conditions of this
Lease, and any modification, extension or renewal thereof, the sum of
Five Thousand Dollars ($5,000.00) hereinafter called the "Deposit".
b) Retain, Use, or Apply The Landlord may, at its sole option,
retain, use, or apply the whole or any part of the Deposit to the
extent required for payment of any:
(i) Base Rent
(ii) Occupancy Costs or Additional Rent
(iii) Other sums as to which the Tenant is obligated to pay under
this Lease;
(iv) Sums that the Landlord may expend or may be required to
expend by reason of the Tenant's default of this Lease;
(v) Loss or damage that the Landlord may suffer by reason of the
Tenant's default, including, without limitation, any damages
incurred by the Landlord or deficiency resulting from the
reletting of the Premises, whether such damages or deficiency
accrues before or after summary proceedings or other re-entry
by the Landlord; or
(vi) Costs incurred by the Landlord in connection with the
cleaning or repair of the Premises upon expiration or earlier
termination of this Lease.
c) Remedies Neither Affect nor Are Affected by the Deposit In no event
shall the Landlord be obligated to apply the Deposit; and Landlord's
right to bring an action or special proceeding to recover damages or
otherwise to obtain possession of the Premises before or after the
Landlord's declaration of the termination of this Lease for non-payment
of rent or for any other reason shall not be affected by reason of the
fact that the Landlord holds the Deposit.
d) Not a Limitation on Damages The Deposit will not be a limitation of
the Landlord's damages or other rights and remedies available under
this Lease, or at law or equity; nor shall the Deposit be a payment of
liquidated damages.
e) Not an Advance on Rent The Deposit will not be an advance payment of
the Rent.
f) Restore Used Portion If the Landlord uses, applies, or retains all or
any portion of the Deposit, the Tenant will restore the Deposit to its
original amount within five (5) days after written demand from the
Landlord. The
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Tenant shall be in Default if the Tenant fails to timely comply
with this Paragraph.
g) Deposit May Be Commingled The Landlord shall not be required to
keep the Deposit separate from its own funds, and may commingle
the Deposit with its own funds, except as required by law.
h) Non interest Bearing Account The Landlord shall not be required
to keep the Deposit in an interest-bearing account. If the
Landlord keeps the Deposit in an interest-bearing account, the
Landlord shall receive all of the interest that accrues.
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EXHIBIT "D" - FIVE
i) Return of the Deposit If the Tenant shall fully and faithfully comply
with all the terms, provisions, covenants, and conditions of this Lease,
and any modification, extension, or renewal thereof, any part of the
Deposit not used, applied, or retained by the Landlord shall be returned
to the Tenant within sixty (60) days after the Tenant has discharged all
of its obligations under this Lease, and any modification, extension, or
renewal thereof, but no earlier than the termination date of this Lease or
any renewal or extension thereof.
j) Return the Deposit to Assignee However, if the Landlord, in its sole
discretion, has sufficient evidence that the Deposit has been assigned to
an assignee of this Lease, the Landlord will return the deposit to the
assignee and the Landlord shall thereupon be released by the Tenant from
all liability for the return of the Deposit to the Tenant.
k) Doesn't Make Lease Effective The acceptance by the Landlord of the
Deposit submitted by the Tenant shall not render this Lease effective
unless and until the Landlord shall have executed and delivered to the
Tenant a fully executed copy of this Lease.
9) DEPOSIT
The Tenant shall remit a payment to the Landlord or the Tenant's real
estate agent in the amount of Fifteen Thousand Dollars ($15,000.00) as a
deposit of application on account towards the first two (2) months Base
(net) Rent, Additional Rent and G.S.T. due under this Lease with any
excess being applied to the next month's Rent.
10) ALTERATIONS OF THE BUILDING/RELOCATION OF THE PREMISES
At any time or times, the Landlord shall have the right to make any
changes in, additions to, deletions from or relocations of any part of the
Building including the Premises and any of the Common Areas (any of which
are herein referred to as "Changes") as the Landlord shall consider
desirable. If the Landlord makes any Changes to the Premises, including
relocation of the Premises, the Landlord shall ensure that the Premises,
as affected by such Changes shall be substantially the same in size and
shall be in all other material respects reasonably comparable to the
Premises originally demised hereby, and Landlord shall make reasonable
commercial efforts to relocate the Tenant to Premises that are in close
and reasonable proximity to elevator banks of the floor in which the
relocated Premises are situated.
If the Premises are relocated as a result of such Changes, the Landlord
shall be responsible for the direct cost of moving the Tenant to the
relocated Premises and constructing replacement leasehold improvements
therein, but not for any indirect costs or losses of claim on account of
the exercise by the Landlord of any of its rights under this Section. The
Landlord shall make any such Changes as expeditiously as is reasonably
possible and so as to interfere as little as is reasonably possible with
the Tenant's business on the Premises. The Landlord shall give the Tenant
a minimum of ninety (90) days notice prior to relocating the Tenant.
EXHIBIT "D" - FIVE
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The Tenant acknowledges that portions of the Building may be under
construction during the Term, and that such construction activities may
cause temporary noise and disturbance to existing tenants of the
Building. The Landlord will use reasonable efforts to minimize
interference with the Tenant's occupation of the Premises as a result
of such construction activities, but the Tenant acknowledges that in no
event shall any noise or other disturbance caused by such construction
constitute a breach of the Tenant's right to quiet enjoyment of the
Premises.
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