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EXHIBIT 10.17
SUBLEASE
THIS SUBLEASE made as of the 14th day of January, 2000.
BETWEEN:
XXXXXXXXX XXXXXXXXX
SPACE AND ADVANCED
ROBOTICS LTD.
(hereinafter called the "SUBLESSOR")
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REQUISITE TECHNOLOGY, INC.
(hereinafter called the "SUBLESSEE");
WHEREAS by a lease (the "HEAD LEASE") dated July 31, 1991, a copy of which the
Sublessee has reviewed, between the Sublessor as lessee and Pala Holdings
Limited (the "HEAD LANDLORD") as lessor, the Head Landlord leased to the
Sublessor certain premises, part of which form the subject matter of this
sublease.
ARTICLE I - BASIC TERMS
BASIC TERMS 1.0 Witnesseth that in consideration of the rents, covenants,
conditions and agreements hereinafter reserved and contained
on the part of the Sublessee to be paid, observed, and
performed, the Sublessor doth demise and lease unto the
Sublessee a portion of the Premises (as defined in the Head
Lease) at 0000 Xxxxxxx Xxxx, Xxxxxxxx, with such portion
comprising the second floor of the West Tower containing
approximately 28,445 square feet of rentable space (the
"Demised Premises") on the terms described in the following
sections:
1.1 Address of Demised Premises: 0000 Xxxxxxx Xxxx, Xxxxxxxx.
1.2 Rentable Area of Demised Premises: means the square
footage of the Demised Premises calculated by the Sublessor's
architect or surveyor based upon applicable BOMA standards.
1.3 Term: 5 years, 4 months, 0 days, commencing on the Term
Commencement Date.
1.4 Term Commencement Date: The date that the Sublessor has
delivered notice to the Sublessee that it has substantially
completed the Sublessor's Work set out in Section 7 of an
agreement to sublease between Sublessor and Sublessee dated
December 22, 1999 (the "Agreement to Sublease"), currently
estimated to be on or about February 29, 2000.
1.5 Renewal Option: None
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1.6 Gross Rent: $16.50 per rentable square foot per annum,
with escalations as set out in Sections 3.4 herein. The
Sublessee shall not be required to pay Gross Rent during the
first four months of the Term.
1.7 Deposit: $156,447.50, on account of the 5th, 6th, 13th and
14th month's Gross Rent.
1.8 Use of Demised Premises: Any use permitted by the Head
Lease.
1.9 The foregoing Basic Terms are hereby approved by the
parties and each reference in this sublease agreement to any
of the Basic Terms shall be construed to include the
provisions set forth above as well as all of the additional
terms and conditions of the applicable paragraphs and
schedules of the sublease where such Basic Terms are more
fully set forth.
ARTICLE II - TERM
LEASE TERM 2.0 To have and to hold the Demised Premises for and during
the Term set out in Paragraph 1.3, unless such Term shall be
sooner terminated as herein provided.
OVERHOLDING 2.1 If at the expiration of the Term of this sublease the
Sublessee shall hold over with or without the consent of the
Sublessor, the tenancy of the Sublessee thereafter shall, in
the absence of written agreement to the contrary, be from
month to month only at a rental per month equal to one-tenth
of the Gross Rent payable for the year immediately preceding
such expiration, payable monthly in advance on the first day
of each lease month and shall be subject to all other terms
and conditions of this sublease. The Sublessee expressly
acknowledges and agrees that the Head Lease terminates
December 1, 2011 and the Sublessee shall be responsible for
and shall indemnify the Sublessor with respect to all rents,
costs, claims and damages whatsoever payable to the Head
Landlord resulting from such overholding.
PEACEABLE
SURRENDER 2.2 The Sublessee shall, at the expiration or sooner
determination of the Term, peaceably surrender and yield up
unto the Sublessor the Demised Premises with all appurtenances
thereto in good and substantial repair and condition in
accordance with the provisions of the Head Lease and this
sublease and shall surrender all keys for the Demised Premises
to the Sublessor at the place then fixed for the payment of
rent and shall inform the Sublessor of all combinations of all
locks, safes and vaults, if any, in the Demised Premises. The
Sublessee's obligation to observe and perform the provisions
of this subsection shall survive the expiration or sooner
determination of this sublease.
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ARTICLE III - GROSS RENT
GROSS RENT 3.0 Yielding and paying therefor yearly and every year during
the said Term unto the Sublessor the sums set out in Section
1.5 of lawful money of Canada to be paid without any abatement
or deduction for any reason whatsoever in advance in equal
monthly installments on the first day of each and every month
during the said Term to the Sublessor, the first of such
payments to be made on the first day of the Term, together
with additional rent herein reserved. If the Term commences on
any day other than the first, or ends on any day other than
the last day of a calendar month, rent for the fractions of a
month at the commencement and at the end of the Term shall be
adjusted pro rata.
PAY RENT 3.1 The Sublessee shall, during the Term, pay unto the
Sublessor the Gross Rent and additional rent hereby reserved
in the manner hereinbefore provided.
INTENTIONALLY
DELETED 3.2 [INTENTIONALLY DELETED]
TAXES 3.3 The Sublessee shall pay to Sublessor an amount equal to
any and all goods and services taxes, sales taxes, value added
taxes, business transfer taxes, or any other taxes imposed on
the Sublessor with respect to rent or any other costs, charges
or expenses payable by the Sublessee to the Sublessor under
this sublease, or in respect of the rental of space under this
sublease, whether characterized as a goods and services tax,
sales tax, value added tax, business transfer tax, or
otherwise (herein called "Taxes"), it being the intention of
the parties that the Sublessor shall be fully reimbursed by
the Sublessee with respect to any and all Taxes at the full
tax rate applicable from time to time in respect of the rent
or the rental of space, without reference to any tax credits
available to the Sublessor. The amount of the Taxes so payable
by the Sublessee shall be calculated by the Sublessor in
accordance with the applicable legislation or in the same
manner set out in the Head Lease, as the circumstances
require, and shall be paid to the Sublessor in the case of
goods and services tax at the same time as the Gross Rent is
paid, and in the case of any other taxes provided herein at
least fifteen days prior to the date that the Sublessor is
obliged to remit same. Despite any other provision in this
sublease, the amount payable by the Sublessee under this
paragraph shall be deemed not to be rent, but the Sublessor
shall have all of the same remedies for and rights of recovery
of such amount as it has for recovery of rent under this
sublease.
GROSS RENT FOR
2000 BASE YEAR
AND ESCALATIONS 3.4 Gross Rent shall include base year 2000 realty taxes,
utilities, waste disposal and insurance components for which
Sublessor is responsible to the Head Landlord as set out in
the Head Lease. The base year 2000 amount in respect of realty
taxes, utilities consumption, waste disposal and insurance is
estimated to be $8.50 per square foot. The Sublessor shall
provide the Sublessee with appropriate documentation to verify
the actual amount as soon as the actual amount can be
verified. The Sublessee shall be responsible for any amounts
in excess of the base year 2000 amount in respect of realty
taxes, utilities, waste disposal and insurance. The Sublessee
shall be
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responsible to provide its own janitorial services, to
maintain and repair the Demised Premises, and to be
responsible for the costs to repair any damage caused by the
Sublessee or those for whom the Sublessee is in law
responsible. The Sublessee shall not otherwise be responsible
for the maintenance and repair of the Building and shall not
otherwise be required to contribute to the cost and expenses
relating to same.
GENERAL
PROVISIONS
RESPECTING
PAYMENT 3.5 Nothing contained in this sublease shall suspend or delay
the payment of any rent at the time it becomes due and
payable. The Sublessee agrees that the Sublessor may, at its
option, apply any sums received against any amounts due and
payable under this sublease in such manner as the Sublessor
sees fit. If any amount of rent is in arrears it shall bear
interest at a rate equivalent to four (4) percent per annum in
excess of the prime lending rate of the Royal Bank of Canada
Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx. All amounts payable by the
Sublessee to the Sublessor in accordance with this sublease
shall be deemed to be rent, save and except as otherwise
expressly provided herein. Any payment required to be made by
any provision of this sublease shall be made in lawful money
of Canada to the Sublessor at the address set out in paragraph
12.1 herein, or such other address as may be provided pursuant
to such paragraph 12.1. The Sublessee hereby expressly waives
in favour of the Sublessor any benefits or rights granted by
the Landlord and Tenant Act R.S.O. 1990, and amendments
thereto permitting or which may permit the Sublessee to claim
or effect any setoff in whole or in part of any debt due to
the Sublessee from the Sublessor against the rental reserved
hereby.
ARTICLE IV - PROVISIONS RESPECTING HEAD LEASE
SUBLESSEE TO
OBSERVE AND
PERFORM
HEAD LEASE
OBLIGATIONS
OF SUBLESSOR 4.0 The Sublessee agrees to be bound by the terms of the
Head Lease as if it were the lessee thereunder, and, subject
to the provisions of Section 3.4 herein, (the "First
Exception") to make any and all payments to the Sublessor as
the Sublessor is required to make to the Head Landlord or to
any third party under the Head Lease including, for greater
certainty, such amounts as required under the Head Lease as
may be owing under the Head Lease as additional rent or other
like amounts, and to perform each and every covenant,
agreement and obligation of the Sublessor to be observed, made
and performed therein (save and except for payment of Basic
Rent thereunder, (the "Second Exception") (collectively the
First Exception and Second Exception being referred to here in
as the "Exception")). The Sublessee agrees to execute a
covenant in favour of the Head Landlord forthwith upon request
by the Sublessor to do so, agreeing to be bound by all of the
covenants, terms and obligations of the Sublessor in the Head
Lease (save and except for the Exception). The Sublessee shall
not do or cause to be done or suffer or permit any act to be
done which would or might cause the Head Lease or rights of
the Sublessor as tenant under the Head Lease to be endangered,
cancelled, terminated, forfeited or surrendered, or which
would or might cause the Sublessor to be in default thereunder
or liable for any damage, claim or penalty. In the event that
there is any conflict between the provisions of this sublease
and the provisions of the Head Lease, then the provisions of
the Head Lease shall prevail.
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ROLE OF
SUBLESSOR
RESPECTING
HEAD LEASE 4.1 The Sublessor shall have no duty to perform any
obligations of the Head Landlord and shall under no
circumstances be responsible or liable to the Sublessee for
any default, failure or delay on the part of the Head Landlord
in the performance of any obligations under the Head Lease,
nor shall such default of the Head Landlord affect this
sublease or waive or defer the performance of any of
Sublessee's obligations hereunder provided, nevertheless, that
in the event of any such default or failure of performance by
Head Landlord, Sublessor agrees, upon written notice from the
Sublessee, to make demand upon the Head Landlord to perform
its obligations under the Head Lease. For greater certainty,
the Sublessee shall acquire no rights herein with respect to
any options or rights granted by the Head Landlord to the
Sublessor under the Head Lease.
ARTICLE V - ASSIGNMENT AND SUBLET
ASSIGNING OR
SUBLETTING 5.0 The Sublessee shall not assign or sublet the Demised
Premises or any part thereof or any of its rights or interest
in and to this sublease without the prior written consent of
the Sublessor, which consent may not be unreasonably withheld,
and without the prior written consent of the Head Landlord
pursuant to the terms of the Head Lease.
CHANGE IN
CONTROL OF
SUBLESSEE 5.1 Any change in control in law or in fact of the Sublessee
as determined by the Sublessor, acting reasonably, shall be
deemed, for the purposes hereof, to be an assignment of this
sublease.
EXTENDED
MEANING OF
ASSIGNMENT
AND SUBLET 5.2 The terms "assignment" and "sublet" herein shall mean and
include the mortgaging or encumbering of this sublease by the
Sublessee of its interest herein or the parting with or
sharing of possession of all or any part of the Demised
Premises, or any combination thereof, other than in respect of
bone fide third party financing provided to the Sublessee by a
party with whom the Sublessee deals at arm's length. An
assignment shall be construed so as to include an assignment
or transfer by operation of law.
SUBLESSEE
REMAINS LIABLE 5.3 The consent of the Sublessor to any assignment or sublet
shall not relieve the Sublessee from its obligations for the
payment of rent and for the full and faithful observance and
performance of the covenants, terms and conditions herein
contained. The Sublessor may collect rent from the assignee,
subtenant or transferee of possession and apply the net amount
collected to the rent and other amounts payable herein, but no
such collection shall be deemed a waiver of the Sublessee's
obligations herein. Any request for consent of the Sublessor
by the Sublessee respecting an assignment or sublet shall be
accompanied by such information as the Sublessor shall
reasonably request, including without limitation, a copy of
the proposed assignment or sublease. All expenses incurred by
the Sublessor in connection with the review of such request
shall be the responsibility of the Sublessee and shall be paid
forthwith upon demand.
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ARTICLE VI - USE
USE COMPLIANCE 6.0 In addition to the Basic Terms respecting use herein the
Sublessee shall comply with all requirements of all laws,
orders, ordinances, rules and regulations of any federal,
provincial, regional or municipal authority or other
governmental body, tribunal or commission having jurisdiction.
The Sublessee covenants that it will not use or permit to be
used any part of the Demised Premises for any dangerous,
noxious or offensive trade or business and it will not cause
or maintain any nuisance, in, at or on the Demised Premises.
ARTICLE VII - REPAIRS, MAINTENANCE,
REPLACEMENT AND ALTERATIONS
CONDITION OF
PREMISES 7.0 The Sublessee agrees that there is no promise,
representation or undertaking by or binding upon the Sublessor
with respect to the present condition of the Demised Premises.
ALTERATIONS 7.1 It is understood and agreed that no alterations,
improvements or additions may be made to the Demised Premises
by the Sublessee unless the same shall comply with all laws,
ordinances and requirements of any and all Federal,
Provincial, Municipal and/or other authorities and of the
Insurers' Advisory Organization or any body having similar
functions and unless the Sublessee shall first obtain the
written consent of the Sublessor and, if required by the Head
Lease, the consent of the Head Landlord to the plans and
specifications for any such changes. All alterations,
decorations, additions, replacements or improvements
(collectively, the "Leasehold Improvements") to the Demised
Premises made by the Sublessee, or made by the Sublessor, or
any other Leasehold Improvements made by the Sublessor or on
the Sublessee's behalf, shall immediately become the property
of the Sublessor or, if required by the terms of the Head
Lease, the property of the Head Landlord, without compensation
therefor to the Sublessee on the expiration of the Term or any
earlier determination of the sublease, save that the Sublessee
shall, at the Sublessor's request, if required by the Head
Lease, at the termination or earlier determination of this
sublease, remove such of the Leasehold Improvements so
requested and return the Demised Premises to its original
condition, all at its own cost and expense.
REMOVE TRADE
FIXTURES 7.2 The Sublessee shall, at the expiration or earlier
determination of the Term if so required by the Head Lease, or
by the Sublessor, at its sole cost and expense, remove all or
such portion so requested of its trade fixtures installed in
the Demised Premises, and promptly make good any damages
caused to the Demised Premises by such installation or
removal.
ARTICLE VIII - INSURANCE, RELEASE AND INDEMNITY
INSURANCE 8.1 The Sublessor shall provide the insurance coverages
contemplated to be taken out by the Lessee in the Head Lease
and the Sublessee shall pay escalations as contemplated in
section 3.4 herein.
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The Sublessee covenants that nothing will be done or omitted
to be done whereby any policy of insurance taken out by the
Head Landlord, the Sublessor or Sublessee shall be cancelled
or the rate increased or the Demised Premises rendered
uninsurable. All proceeds of insurance respecting the Demised
Premises against property damage shall be paid in accordance
with the terms of the Head Lease, or if the Head Lease does
not address distribution of such proceeds of insurance, then
in accordance with the damage and destruction provisions
contained in Article IX herein. All insurance policies
required herein shall provide cross-liability coverage and for
waiver of subrogation in favour of the Sublessor and all other
companies respectively owned, operated or controlled by or
affiliated to the Sublessor. Receipts for satisfactory
evidence establishing the payment of premiums in respect of
each of the said insurance policies required herein shall be
delivered to the Sublessor at least ten (10) days before the
same become due.
INDEMNITY 8.2 The Sublessee shall indemnify and save wholly harmless the
Sublessor of and from all losses, liabilities, damages, fines,
suits, claims, demands, and actions of every kind or nature to
which the Sublessor shall or may become liable for or suffer
by reason of any breach, violation or non-performance by the
Sublessee of any covenant, term or provision herein or under
the Head Lease or by reason of any injury, death, damage to
property or accident resulting from, occasioned to or suffered
by any person or persons or any property by reason of or
arising from the occupancy or use by the Sublessee of the
Demised Premises, including without limitation any act,
omission, neglect or default on the part of the Sublessee or
any of its agents, employees, or other person or persons for
whom the Sublessee is in law responsible, such indemnification
in respect of any such breach, violation or non-performance,
damage to property, injury or death occurring during the term
of this sublease shall survive any termination of this
sublease, anything in this sublease to the contrary
notwithstanding.
RELEASE OF
LIABILITY
FOR INDIRECT
DAMAGES 8.3 Under no circumstances shall the Sublessor be liable for
direct, indirect or consequential damage or damages for
personal discomfort or illness by reason of the
non-performance or partial performance of any covenants of the
Sublessor or Head Landlord.
RELEASE OF
LIABILITY FOR
LOSS, INJURY
OR DAMAGE 8.4 The Sublessor shall not be liable for (a) any death or
injury to the Sublessee or others arising from or out of any
occurrence in, upon, at or relating to the Demised Premises or
(b) damage to property of the Sublessee or others located on
the Demised Premises, or (c) any loss or damage to any
property of the Sublessee or others from any cause whatsoever,
including, without limiting the generality of the foregoing,
any injury or damage to persons or property resulting from
fire, electrical matters, explosion, steam, water, rain, snow
or gas, or (d) any damage caused by anything done or omitted
by the Sublessor or by any other occupant of the Demised
Premises, or (e) any claim in connection with any injury, loss
or damage to the Sublessee or others arising out of the
security services in force or the lack thereof in the Demised
Premises from time to time, and the Sublessee hereby so
releases the Sublessor from all liabilities, fines, suits,
claims, demands, costs and actions of any kind or nature
whatsoever to which the Sublessor might otherwise be liable
for in that regard.
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ARTICLE IX - DAMAGE AND DESTRUCTION
9.0 The Sublessor and Sublessee agree that the provisions in
the Head Lease with respect to damage and destruction shall
apply mutatis mutandis to the sublease, save and except for
greater certainty the obligations of the Head Landlord shall
remain the obligations of the Head Landlord for the purposes
of this sublease, and the obligations of the Sublessor shall
become the obligations of the Sublessee with respect to this
sublease, the intent being that the Sublessor shall have no
obligations to repair or reconstruct with respect to damage
and destruction of the Demised Premises, provided however any
rights to terminate in favour of the Sublessor set out in the
Head Lease shall be exercised or non-exercised, as the case
may be, at the sole direction of the Sublessor.
ARTICLE X - DEFAULT, EARLY TERMINATION AND REMEDIES
SUBLESSOR MAY
PERFORM
SUBLESSEE'S
COVENANTS 10.1 If the Sublessee is in default of any of its covenants,
obligations or agreements under this sublease (other than its
covenant to pay rent) and (i) in cases of no emergency such
default shall have continued for a period of ten (10)
consecutive days after written notice by the Sublessor to the
Sublessee specifying with reasonable particularity the nature
of such default and requiring the same to be remedied (or, if
by reason of the nature thereof, such failure cannot be cured
by the payment of money and cannot with due diligence be
wholly cured within such ten (10) day period, if the Sublessee
shall fail to proceed promptly to cure the same or shall
thereafter fail to prosecute the curing of such failure with
due diligence); or (ii) without notice or any curative period
if in the reasonable exercise of the Sublessor's judgment an
emergency exists; the Sublessor, without prejudice to any
other rights which it may have with respect to such default,
may (but shall not be obligated to) remedy such default and
the cost thereof (together with an administration overhead of
15% of such costs) together with interest thereon as provided
in paragraph 3.5 herein from the date such cost was incurred
by the Sublessor until paid shall be treated as additional
rent and added to the rent due on the next succeeding date on
which Gross Rent is payable and such amount shall thereupon
become due and payable as rent in addition to the regular
payment of Gross Rent then due. The Sublessor shall be
subrogated to the extent of such payment to all rights,
remedies and priorities of the payee to the extent of the
amount paid by the Sublessor to remedy such default.
RE-ENTRY 10.2 Provided that when:
(a) the Sublessee shall be in default in the payment of any
rent, whether lawfully demanded or not, and such default
shall continue for a period of ten (10) consecutive days
after written notice by the Sublessor to the Sublessee;
or
(b) the Sublessee shall be in default of any of its
covenants, obligations or agreements under this sublease
(other than its covenant to pay rent) and such default
shall have continued for a period of ten (10)
consecutive days after written notice by the Sublessor
to the Sublessee specifying with reasonable
particularity the nature of such
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default and requiring the same to be remedied (or, if by
reason of the nature thereof, such failure cannot be
cured by the payment of money and cannot with due
diligence be wholly cured within such ten (10) day
period, if the Sublessee shall fail to proceed promptly
to cure the same or shall thereafter fail to prosecute
the curing of such failure with due diligence); or
(c) any property of the Sublessee has been sold under a
valid writ of execution, or the Sublessee shall have
made an assignment or proposal for the benefit of
creditors, or shall make any assignment or proposal or
have had a receiving order made against it under the
Bankruptcy and Insolvency Act, or becoming bankrupt or
insolvent shall have made application for relief under
the provisions of any statute now or hereafter in force
concerning bankrupt or insolvent debtors, or any action
whatever, legislative or otherwise, shall have been
taken with a view to the compromising of debts or
liabilities, winding up, dissolution or liquidation of
the Sublessee, or if a receiver of any of the
Sublessee's goods or chattels has been appointed, or any
of the Sublessee's goods and chattels have been seized
or taken in execution or attachment, or the Sublessee
shall make any assignment for the benefit of creditors
or give any Xxxx of Sale without complying with the Bulk
Sales Act (Ontario); or
(d) any insurance policy is cancelled or not renewed by any
insurer by reason of any particular use or occupation of
the Demised Premises; or
(e) the Demised Premises shall have been abandoned, or have
become vacant or shall have remained unoccupied for a
period of twenty-one (21) consecutive days while the
same are suitable for use by the Sublessee without the
consent of the Sublessor, which consent shall not be
unreasonably withheld;
then, and in any of such cases, the then current
month's rent together with the rent for the three
(3) months next ensuing shall immediately become
due and payable, and at the option of the Sublessor
the Term shall become forfeited and void, and the
Sublessor without notice or any form of legal
process whatever may forthwith re-enter the Demised
Premises or any part thereof in the name of the
whole and repossess and enjoy the same as of its
former estate, anything contained in any statute or
law to the contrary notwithstanding. Such
forfeiture shall be wholly without prejudice to the
right of the Sublessor to recover arrears of rent
and damages for any antecedent breach of the
covenants, obligations or agreements of the
Sublessee under this sublease. Notwithstanding any
such forfeiture, the Sublessor may subsequently
recover from the Sublessee damages for loss of rent
suffered by reason of this sublease having been
prematurely determined and it may recover from the
Sublessee all damages it may incur with respect
thereto, including the cost of recovering the
Demised Premises, and including the worth at the
time of such termination of the excess, if any, of
the amount of rent for the remainder of the Term
over the then reasonable rental value of the
Demised Premises for the remainder of the
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Term, all of which rent shall be immediately due
and payable from the Sublessee to the Sublessor.
For greater certainty, with respect to the
calculation of rent for the purposes of determining
accelerated rent pursuant to paragraph 10.1 herein,
or the six month rental amount calculated pursuant
to a lease repudiation proposal pursuant to the
Bankruptcy and Insolvency Act, such rental shall
include both Gross Rent and additional rent herein
reserved, and shall be equal to the greater of (i)
the Gross Rent and additional rent applicable to
the next ensuing portion of the term from the
effective date of such accelerated rent or lease
repudiation determination; or (ii) in the event
that during such period of time, a rental
concession or reduction is occurring, including
without limitation a free rent or reduced rent
situation, then the Gross Rent and Additional Rent
that would have been applicable had no such rent
concession or reduction been in effect for any part
of such time.
LANDLORD MAY
RE-LET 10.3 If the Sublessor does not exercise its option under
Section 10.1 hereof to terminate this sublease it may
nevertheless in the events set out in Section 10.1 hereof from
time to time, re-enter the Demised Premises without
terminating this sublease, make such alterations and repairs
as may be necessary in order to re-let the Demised Premises,
and re-let the Demised Premises or any part thereof as agent
for the Sublessee for such period or periods (which may extend
beyond the Term) and at such rental or rentals and upon such
other terms and conditions as the Sublessor in its sole
discretion may deem advisable. Upon each such re-letting all
rentals received by the Sublessor from such re-letting shall
be applied, first, to the payment of any indebtedness other
than rent due from the Sublessee to the Sublessor; second, to
the payment of any costs and expenses of such re-letting,
including brokerage fees and solicitors' fees and of the costs
of alterations and repairs performed in connection with such
re-letting; third, to the payment of rent due and unpaid; and
the residue, if any, shall be held by the Sublessor and
applied in payment of future rent as the same may become due
and payable. The Sublessee shall pay to the Sublessor the
amount by which the rent received from such re-letting during
any month during the Term is less than the rent payable during
that month by the Sublessee. Notwithstanding any such
re-letting without termination, the Sublessor may at any time
thereafter elect to terminate this sublease. No such re-entry
or taking of possession by the Sublessor shall be construed as
an election on its part to terminate this sublease unless, at
the time of or subsequent to such re-entry or taking of
possession, a written notice of such intention has been given
to the Sublessee or unless the termination thereof be decreed
by a court of competent jurisdiction.
RIGHT TO
DISTRAIN 10.4 The Sublessee waives and renounces the benefit of any
present or future statute purporting to limit or qualify the
Sublessor's right to distrain and agrees with the Sublessor
that if any of the events set out in Section 10.1 hereof shall
occur the Sublessor, in addition to the other rights reserved
to it, shall have the right to enter the Demised Premises as
agent of the Sublessee either by force or otherwise without
being liable for any prosecution therefor and to take
possession of any goods and chattels whatever on the Demised
Premises, save and except any
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such goods and chattels which are owned by any occupiers of
the Demised Premises other than the Sublessee, and to sell the
same at public or private sale without notice and apply the
proceeds of such sale on account of the rent or in
satisfaction of the breach of any covenant, obligation or
agreement of the Sublessee under this sublease and the
Sublessee shall remain liable for the deficiency, if any. In
case of removal by the Sublessee of the goods or chattels of
the Sublessee from the Demised Premises, the Sublessor may
follow the same for thirty (30) days in the same manner as is
provided for in the Landlord and Tenant Act, R.S.O. 1990, or
any successor legislation or other statute which may hereafter
be passed to take the place of the said Act or to amend the
same.
RIGHTS
CUMULATIVE 10.5 The rights and remedies given to the Sublessor in this
sublease are distinct, separate and cumulative, and no one of
them, whether or not exercised by the Sublessor shall be
deemed to be in exclusion of any other rights or remedies
provided in this sublease or by law or in equity.
` All rights and powers reserved to Sublessor may be exercised
by either Sublessor or its duly authorized agents or
representatives.
ACCEPTANCE
OF RENT-
NON-WAIVER 10.6 No receipt of monies by the Sublessor from the Sublessee
after the cancellation or termination of this sublease in any
lawful manner shall reinstate, continue or extend the Term, or
affect any notice previously given to the Sublessee or operate
as a waiver of the right of the Sublessor to enforce the
payment of rent then due or thereafter falling due or operate
as a waiver of the right of the Sublessor to recover
possession of the Demised Premises by proper suit, action,
proceedings or other remedy; it being agreed that, after the
service of a notice to cancel this sublease and the expiration
of the time therein specified, and after the commencement of
any suit, action, proceeding or other remedy, or after a final
order or judgment for possession of the Demised Premises, the
Sublessor may demand, receive and collect any monies due, or
thereafter falling due without in any manner affecting such
notice, suit, action, proceeding, order or judgment; and any
and all such monies so collected shall be deemed payments on
account of the use and occupation of the Demised Premises or
at the election of the Sublessor on account of the Sublessee's
liability hereunder.
EARLY
TERMINATION 10.7 At the option of the Sublessor, to be exercised by notice
in writing to the Sublessee, this sublease shall terminate in
the event of early termination, if any, of the Head Lease.
ARTICLE XI - STATUS OF DEMISED PREMISES
"AS IS"
"WHERE IS" 11.1 The Sublessee acknowledges and agrees that it has leased
the Demised Premises on an "as is, where is" basis and that
the Sublessor has no responsibility or liability with respect
to the state of repair or condition of the Demised Premises or
with respect to any defects or deficiencies therein, save and
except that in accordance with paragraph 4.1 herein the
Sublessor agrees, upon written notice from the Sublessee, to
make demand upon the Head Landlord to perform its obligations
under the Head Lease.
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ARTICLE XII - GENERAL
NET LEASE 12.0 The Sublessee hereby acknowledges, confirms and agrees
that save and except with respect to the gross rent aspect of
this Lease set out in Section 3.4 herein, it is the intention
of the parties that this sublease shall be a completely
carefree net sublease for the Sublessor, and that the
Sublessor shall not be responsible during the Term of this
sublease for any loss, charges, expenses and outlays of any
nature or kind whatsoever arising from or relating to the
Demised Premises or the contents thereof (save as expressly
provided herein) and the Sublessee shall pay all such charges,
impositions and expenses of every kind and nature relating to
the Demised Premises, and covenants with the Sublessor
accordingly. The Sublessee further acknowledges and agrees
that the Sublessor shall have all rights and remedies as
against the Sublessee in respect of this sublease as though
the Sublessor were the landlord named in the Head Lease, and
the Sublessee was the tenant named in the Head Lease, mutatis
mutandis, save and except with respect to Basic Rent.
NOTICES 12.1 Any notice herein provided for or given hereunder if
given by the Sublessee to the Sublessor or vice versa shall be
in writing and shall be sufficiently given if delivered, sent
by facsimile or if mailed in Canada by registered mail,
postage prepaid to the Sublessor at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx, Fax: (000) 000-0000, and to the Sublessee
at 0000 Xxxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxx, Fax: (303)
474-2211. Any notice delivered personally or sent by facsimile
shall be deemed to be received when delivered or transmitted
respectively. Any notice mailed as aforesaid shall be
conclusively deemed to have been given on the fourth business
day following the day on which such notice is mailed as
aforesaid. Either the Sublessor or the Sublessee may at any
time give notice in writing to the other of any change of
address of the party giving such notice and from and after the
giving of such notice the address therein specified shall be
deemed to be the address of such party for the giving of such
notices thereafter. The word "notice" in this paragraph shall
be deemed to include any request, demand, direction or
statement in writing in this lease provided or permitted to be
given by the Sublessor to the Sublessee or by the Sublessee to
the Sublessor.
NO CHANGES
OR WAIVERS 12.2 No assent or consent to changes in or waiver of any of
this indenture in spirit or letter shall be deemed or taken as
made unless the same be done in writing and attached to or
endorsed hereon by the Sublessor and/or Sublessee, as the case
may be.
MARGINAL
NOTES 12.3 The marginal notes in this sublease form no part of this
sublease and shall be deemed to have been inserted for
convenience of reference only.
INTERPRETATIONS 12.4 Unless the context otherwise requires, the word
"Sublessor" wherever it is used herein shall be construed to
include and shall mean the Sublessor, its successors and/or
assigns, and the word "Sublessee" shall be construed to
include and shall mean the Sublessee, its heirs, executors,
administrators, successors and/or assigns and when there are
two or more Sublessees or two or more persons bound by the
Sublessee's covenants herein contained, their obligations
hereunder shall be joint and several, the word "Sublessee" and
the personal
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pronoun "it" relating thereto and used therewith shall be read
and construed as Sublessees, and "his", "her", "its" or
"their" respectively, as the number and gender of the party or
parties referred to each require and the number of the verb
agreeing therewith, shall be construed and agree with the said
word or pronoun or substituted.
LAWS 12.5 This sublease shall be construed and interpreted in
accordance with the laws of the Province of Ontario and the
laws of Canada applicable therein.
LANDLORD AND
TENANT
RELATIONSHIP 12.6 No provision of this sublease is intended to nor creates
a joint venture or partnership or any other similar
relationship between the Sublessor and Sublessee, it being
agreed that the only relationship created by this sublease is
that of landlord and tenant.
PLANNING ACT 12.7 It is an express condition of this sublease that the
provisions of section 50 of the Planning Act of Ontario, 1990,
R.S.O. and amendments thereto be complied with.
REGISTRATION 12.8 The Sublessee shall have the right to register notice of
the sublease on the title to the lands, subject to the prior
written consent of the Head Landlord if required pursuant to
the Head Lease, and subject to prior written approval by the
Sublessor acting reasonably, as to the terms of the notice.
SURVIVAL OF
TENANT'S
COVENANTS 12.9 All agreements, covenants and indemnifications in this
sublease made by the Sublessee shall survive the expiration or
earlier termination of this sublease, anything to the contrary
in this sublease notwithstanding.
CONSTRUCTION
LIENS 12.10 If any construction or other liens or order for the
payment of money shall be filed against the Demised Premises
by reason or arising out of any labour or material furnished
to the Sublessee or to anyone claiming through the Sublessee,
the Sublessee shall, within 15 days after notice to the
Sublessee of the filing thereof, cause the same to be
discharged by bonding, deposit, payment, court order or
otherwise. The Sublessee shall defend all suits to enforce
such liens or orders, whether against the Sublessee or
Sublessor, or the Head Landlord, at the Sublessee's sole
expense. The Sublessee hereby indemnifies the Sublessor
against any expense or damage as a result of such liens or
orders.
ENTIRE
AGREEMENT 12.11 There are no covenants, representations, warranties,
agreements, or conditions expressed or implied, collateral or
otherwise forming part of or in any way affecting or relating
to this sublease or the Demised Premises save as expressly set
out in the sublease and this sublease constitutes the entire
agreement between the Sublessor and the Sublessee relating to
the landlord and tenant relationship created herein, (and
supersedes the Agreement to Sublease save and except Section 7
(Sublessor's Work) and Section 6(c) (Commissions) therein and
may not be amended or modified except by subsequent agreement
in writing of equal formality executed by the Sublessor and
the Sublessee.
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ARBITRATION 12.12 In the event of any dispute arising respecting this
sublease, either party may by notice in writing require that
the dispute be arbitrated in accordance with the terms herein.
Within fifteen (15) days of delivery of the notice requiring
arbitration, the parties shall in good faith attempt to agree
upon one arbitrator, and if so agreed, such arbitrator shall
be the sole arbitrator. In the event the parties do not so
agree, within fifteen (15) days thereafter, each party shall
provide written notice to the other of the one arbitrator
chosen by them, and the two arbitrators thus chosen shall
select within fifteen (15) days after the selection of the
later of them, a third arbitrator, and the dispute shall be
settled by the award of the three arbitrators of a majority of
them. The arbitration shall be conducted in accordance with
the provisions of the Arbitrations Act (Ontario).
EXPANSION
OPTION AND
RIGHT OF FIRST
REFUSAL 12.13 (a) The Sublessee shall have the option to sublease the
entire third floor of the Building (approximately 22,940
square feet) by delivery of written notice to the Sublessor on
or before September 1, 2000, failing which the option to
sublease shall become null and void. In the event the option
to sublease is validly exercised, this Sublease shall be
amended to include the entire third floor on the same terms
and conditions as in respect of the Demised Premises, except
there shall be no gross free rent period. The commencement
date in respect of subleasing of the third floor shall be the
Third Floor Commencement Date (being the date that the
Sublessor has delivered notice to the Sublessee that it has
substantially completed the Sublessor's Work applicable to and
in respect of the third floor, intended to be approximately 60
days from the date of exercise of this option to sublease).
The term of this Sublease, including the Demised Premises and
the third floor premises, shall be automatically extended by
one year from the date otherwise determined pursuant to
Section 1.4 herein.
(b) At any time during the Sublessee's occupancy of the
Demised Premises, and provided that the Sublessee has
exercised the option to sublease the entire third floor of the
Building and is in occupation of such premises, in the event
that the Sublessor intends to sublease contiguous space to the
Demised Premises as determined in the sole discretion of the
Sublessor from time to time (the "Subject Premises") then
prior to making or soliciting offers to sublease the Sublessor
shall send an offer to sublease (the "Offer") to the Sublessee
setting out an offer to the Sublessee to sublet the Subject
Premises at then current market rental rates and upon such
other market terms and conditions as are acceptable to the
Sublessor. The Sublessee shall have a period of ten business
days from the receipt of the Offer to notify the Sublessor in
writing in the event that the Sublessee desires to sublease
the Subject Premises (the "Acceptance") upon the same terms
and conditions as contained in the Offer including, without
limitation, delivery of the deposit, if any, required by the
Offer. In the event that the Sublessee shall send an
Acceptance in accordance with the provisions of this
subparagraph, then the Sublessee shall be obligated to
sublease the Subject Premises upon the same terms and
conditions as are contained in the Offer. In the event that
the Sublessee shall have failed to have sent the Acceptance
within such time period, the herein right of first offer shall
be forever extinguished.
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SECURITY AND
ACCESS 12.14 The Sublessor shall provide security passes or other
security access mechanisms for use by the Sublessee to permit
entry into the Building at a designated entry point and access
to and from the Demised Premises. The Sublessee shall comply
with the Sublessor's reasonable security protocols from time
to time. The Sublessee acknowledges that the Sublessee shall
be responsible for its own security system in respect of the
Demised Premises. The Sublessee acknowledges that the
Sublessor requires the necessary security clearances in order
to have the right of entry for emergency, inspection and other
appropriate reasons for entry into the Demised Premises. The
Sublessee shall have access to the Building and the Landlord
shall provide heating, ventilation and air conditioning to the
Subleased Premises 24 hours a day, seven days per week.
ACCESS TO
ELECTRICAL
ROOM ON 2ND
FLOOR 12.15 The Sublessor shall permit the Sublessee access to the
main electrical room on the 2nd floor on a supervised basis.
COMMON
AREAS 12.16 To the extent the Sublessor maintains certain areas in
the Building as common areas that can be accessed by the
Sublessor and the Sublessee, namely the cafeteria and sitting
area, the fitness area, the change room and the training
conference room, all on the main floor, subject to
availability, the Sublessee shall have the right to use the
training conference room or the cafeteria for Sublessee only
sponsored events upon at least two business days prior written
request to the Sublessor, provided the Sublessee complies with
all reasonable rules and regulations relating to such use,
including without limitation the execution by the Sublessee
and by users of the fitness area of appropriate waivers and
releases in respect of such usage.
PARKING 12.17 The Sublessee shall be entitled during the sublease to
free surface parking in the south parking lot at a ratio of 4
spaces per 1,000 square feet subleased.
IN WITNESS WHEREOF the parties hereto have executed this Indenture as of the
date first above written.
For and on behalf of For and on behalf of
REQUISITE TECHNOLOGY, INC. XXXXXXXXX XXXXXXXXX SPACE AND
ADVANCED ROBOTICS LTD.
Per: /s/ X X XXXXXXXXXX Per: /s/ X. XXXXX
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Per: VP & Chief Financial Officer Per:
1/14/2000
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