MULTI TENANT OFFICE STANDARD BUILDING LEASE PENYORK PROPERTIES III INC. - and - OCCULOGIX, INC. LEASE
Exhibit
10.32
MULTI
TENANT OFFICE
PENYORK
PROPERTIES III INC.
- and
-
___________________
LEASE
___________________
|
Project:
|
0000
Xxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxx
|
|
Premises:
|
Suites
103 and 201, Building 9
|
TABLE OF
CONTENTS
Section
|
1.
|
LEASE
SUMMARY
|
|
2.
|
DEFINITIONS
|
|
3.
|
INTENT
OF LEASE
|
|
|
3.1
|
Net
Lease
|
|
4.
|
LEASE
OF PREMISES
|
|
|
4.1
|
Premises
|
|
|
4.2
|
Term
|
|
|
4.3
|
Fixturing
Period
|
|
|
4.4
|
Acceptance
of Premises
|
|
|
4.5
|
Licence
to Use Common Facilities
|
|
|
4.6
|
Quiet
Enjoyment
|
|
|
4.7
|
Fixturing
of Premises
|
|
5.
|
RENT
|
|
|
5.1
|
Tenant
to Pay
|
|
|
5.2
|
Basic
Rent
|
|
|
5.3
|
Additional
Rent
|
|
|
5.4
|
Deemed
Rent and Allocation
|
|
|
5.5
|
Monthly
Payments of Additional Rent
|
|
6.
|
TAXES
|
|
|
6.1
|
Taxes
Payable by Xxxxxx
|
|
|
6.2
|
Determination
of Tenant’s Taxes
|
|
|
6.3
|
Business
Taxes and Sales Taxes
|
|
|
6.4
|
Tax
Bills and Assessment Notices
|
|
|
6.5
|
Contest
of Realty Taxes
|
|
7.
|
OPERATION
OF PROJECT
|
|
|
7.1
|
Operation
of Project by Landlord
|
|
|
7.2
|
Tenant’s
Payment of Operating Costs
|
|
|
7.3
|
Adjustments
to Operating Costs
|
|
8.
|
USE
OF PREMISES
|
|
|
8.1
|
Use
of Premises
|
|
|
8.2
|
Conduct
of Business
|
|
|
8.3
|
Tenant’s
Fixtures
|
|
|
8.4
|
Signs
|
|
|
8.5
|
Waste
Remova
|
|
|
8.6
|
Pest
Control
|
|
|
8.7
|
Waste
and Nuisance
|
|
|
8.8
|
Compliance
with Laws
|
|
|
8.9
|
Deliveries
|
|
|
8.10
|
Window
Coverings
|
|
|
8.11
|
Prohibited
Uses
|
|
9.
|
SERVICES
AND UTILITIES
|
|
|
9.1
|
Utilities
|
|
|
9.2
|
Heating
and Air Conditioning
|
|
|
9.3
|
Non-Liability
of Landlord
|
|
|
9.4
|
Landlord’s
Suspension of Utilities
|
- i -
10. MAINTENANCE,
REPAIRS AND ALTERATIONS
|
|
10.1
|
Maintenance
and Repairs of Premises
|
|
|
10.2
|
Approval
of Repairs and Alterations
|
|
|
10.3
|
Repair
According to Xxxxxxxx’s Notice
|
|
|
10.4
|
Notice
by Tenant
|
|
|
10.5
|
Ownership
of Leasehold Improvements
|
|
|
10.6
|
Construction
Liens
|
|
|
10.7
|
Landlord’s
Repairs
|
|
|
10.8
|
Special
Services
|
|
11.
|
END
OF TERM
|
|
|
11.1
|
Vacating
of Possession
|
|
|
11.2
|
Removal
of Trade Fixtures
|
|
|
11.3
|
Removal
of Leasehold Improvements
|
|
|
11.4
|
Overholding
by Xxxxxx
|
|
12.
|
DAMAGE
AND DESTRUCTION
|
|
|
12.1
|
Insured
Damage to Premises
|
|
|
12.2
|
Uninsured
Damage and Last Two Years
|
|
|
12.3
|
Damage
to Project
|
|
|
12.4
|
Restoration
of Premises or Project
|
|
|
12.5
|
Determination
of Matters
|
|
13.
|
INSURANCE
AND INDEMNITY
|
|
|
13.1
|
Landlord’s
Insurance
|
|
|
13.2
|
Tenant’s
Effect On Other Insurance
|
|
|
13.3
|
Tenant’s
Insurance
|
|
|
13.4
|
Landlord’s
Right to Place Tenant’s Insurance
|
|
|
13.5
|
Landlord’s
Non-Liability
|
|
|
13.6
|
Indemnity
of Landlord
|
|
|
13.7
|
Landlord’s
Employees and Agents
|
|
14.
|
ASSIGNMENT,
SUBLETTING AND CHANGE OF CONTROL
|
|
|
14.1
|
Consent
Required
|
|
|
14.2
|
Obtaining
Consent
|
|
|
14.3
|
Landlord’s
Option
|
|
|
14.4
|
Terms
of Transfer
|
|
|
14.5
|
Effect
of Transfer
|
|
|
14.6
|
No
Advertising of Premises
|
|
|
14.7
|
Mortgage
of Lease
|
|
|
14.8
|
Corporate
Tenant
|
|
|
14.9
|
Assignment
by Landlord
|
|
15.
|
STATUS
AND SUBORDINATION OF LEASE
|
|
|
15.1
|
Status
Statement
|
|
|
15.2
|
Subordination
|
|
|
15.3
|
Tenant’s
Failure to Comply
|
|
|
15.4
|
Registration
|
|
16.
|
DEFAULT
AND REMEDIES
|
|
|
16.1
|
Default
and Remedies
|
|
|
16.2
|
Interest
and Costs
|
|
|
16.3
|
Bankruptcy
and Insolvency
|
|
|
16.4
|
Distress
and Xxxxxx’s Property
|
|
|
16.5
|
Intentionally
Deleted
|
|
|
16.6
|
Rent
Deposit
|
|
|
16.7
|
Remedies
to Subsist
|
|
|
16.8
|
Impossibility
of Performance
|
- ii -
17. CONTROL
OF PROJECT
|
|
17.1
|
Landlord’s
Control
|
|
|
17.2
|
Alterations
of the Project
|
|
|
17.3
|
Use
of Common Facilities
|
|
|
17.4
|
Rules
and Regulations
|
|
|
17.5
|
Access
to Premises
|
|
|
17.6
|
Expropriation
|
|
|
17.7
|
Landlord’s
Consent
|
|
18.
|
MISCELLANEOUS
|
|
|
18.1
|
Notices
|
|
|
18.2
|
Complete
Agreement
|
|
|
18.3
|
Time
of the Essence
|
|
|
18.4
|
Applicable
Law
|
|
|
18.5
|
Severability
|
|
|
18.6
|
Section
Numbers and Headings
|
|
|
18.7
|
Interpretation
|
|
|
18.8
|
Successors
|
|
|
18.9
|
Monetary
Amounts
|
|
18.10
|
Demolition or
Substantial Alterations
|
19.
PRIVACY
POLICY
Schedules
|
"A"
|
LEGAL
DESCRIPTION OF PROJECT
|
|
"B"
|
OUTLINE
PLAN OF PREMISES
|
|
"C"
|
SECURITY
AGREEMENT - intentionally deleted
|
|
"D"
|
SPECIAL
PROVISIONS
|
|
"E"
|
EXCLUSIVE
USES OF OTHER TENANTS
|
|
"F"
|
RENT
DEPOSIT AGREEMENT
|
|
"G"
|
ENVIRONMENTAL
QUESTIONNAIRE
|
|
"H"
|
TENANT
WORK
|
- iii -
THIS LEASE is dated October
17, 2005 and is made,
BETWEEN:
PENYORK
PROPERTIES III INC.
(hereinafter
called “Landlord”)
OF
THE FIRST PART
-and-
(hereinafter
called “Tenant”)
OF
THE SECOND PART
1.
LEASE
SUMMARY
The
following is a summary of some of the basic terms of this Lease, which are
elaborated upon in the balance of this Lease. This Section 1 is for convenience
and if a conflict occurs between the provisions of this Section 1 and any other
provisions of this Lease, the latter shall govern.
|
|
(a)
|
Premises:
|
being
comprised of:
|
|
(i)
|
Suite 103 (“Suite 103
Premises”) being a portion of the first (1st) floor of Building 9, as shown
outlined on the floor plan annexed hereto as Schedule “B-1”;
and
|
|
|
(ii)
|
Suite 201 (“Suite 201
Premises”), being a portion of the second (2nd) floor of Building 9, as
shown outlined on the floor plan annexed hereto as Schedule
“B”,
|
(collectively,
the “Premises”), of the project municipally known as 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxx.
|
|
(b)
|
Term:
One (1) year and Six (6)
months;
|
|
|
(c)
|
Commencement
Date: February 1,
2006;
|
|
|
(d)
|
Expiry
Date: July 31,
2007;
|
|
(e)
|
Basic
Rent: Subject
to adjustment in accordance with Section 5.2 and, further, subject to
Section 3 of Schedule “D”:
|
|
RENTAL
PERIOD
|
RATE
PER SQ.FT. PER ANNUM OF RENTABLE AREA
|
|
February
1, 2006 to July 31, 2007
|
$10.00
|
|
|
(f)
|
Rentable
Area of Premises:
|
|
|
(i)
|
Suite 103 Premises
containing approximately 1,363 square feet;
and
|
|
|
(ii)
|
Suite 201 Premises
containing approximately 5,237 square
feet;
|
(collectively
approximately 6,600
square feet) (subject to determination in accordance with Section
2.24);
|
|
(g)
|
Rent
Deposit: Twenty Four
Thousand Six Hundred and Thirty-Four Dollars and Sixty Two Cents
($24,634.62), to
be held by the Landlord in accordance with the provisions of the Rent
Deposit Agreement;
|
|
|
(h)
|
Use
of Premises: General business offices for an ophthalmic therapeutic
company, to the extent permitted by all Laws and to the extent in
keeping with the standards of a first-class office building, under the
name Occulogix, Inc. and by no other name whatsoever without the
Landlord’s prior written consent;
|
- 1
-
|
|
(i)
|
Address for Service of
Notice on Tenant:
|
at the
Premises
Address for Service of
Notice on Landlord:
PenYork
Properties III Inc.
c/o
Bentall Investment Management
00
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Toronto,
Ontario
M5 V
2H7
Attention:
Investment Manager
With a
copy to the Landlord at:
PenYork
Properties III Inc.
c/o
Bentall Real Estate Services L.P.
00
Xxxxxxx Xxxxx, Xxxxx 000
Etobicoke,
Ontario
M9W
6L2
Attention: Vice-President,
Operations
|
|
(j)
|
Special
Provisions: See Schedule “D
|
|
2.
|
DEFINITIONS
|
Where
used in this Lease, the following words or phrases shall have the meanings set
forth in the balance of this Article.
2.1 “Additional
Rent” shall have the meaning given to it in Section 5.3.
2.2 “Architect”
means an architect, engineer, surveyor or other qualified person appointed by
the Landlord from time to time.
2.3 “Basic
Rent” shall have the meaning given to it in Section 5.2.
2.4 “Building”
means the building in which the Premises are located.
2.5 “Business
Hours” means normal business hours for the Project as determined by Landlord
from time to time and which, unless otherwise determined by Landlord, shall be
from 8:00 a.m. to 6:00 p.m., Monday through Friday, excluding holidays, and
subject to applicable Laws.
2.6 “Commencement
Date” shall have the meaning given to it in subsection 1(c).
2.7 “Common
Facilities” means: (a) the Project, excluding only Leasable Areas, Storage
Areas, and premises at or below grade whether leased or not, used for sports,
fitness or other recreational purposes, and including, without limitation: (i)
all areas, facilities, systems, improvements, furniture, fixtures and equipment
in or on the Project; (ii) the lands forming part of the Project; and (iii)
parking areas and facilities, if any, and other service areas and facilities, if
any; and (b) all lands, areas, facilities, systems, improvements, furniture,
fixtures and equipment serving or benefiting the Project, whether or not located
within the Project, to the extent that the same are designated or intended by
Landlord to be part of the Common Facilities from time to time.
2.8 “Environmental
Legislation” means all statutes, laws, ordinances, codes, rules, regulations,
orders, notices and directives, now or at any time hereafter in effect, made or
issued by any municipal, provincial or federal government, or by any department,
agency, board or office thereof, or by any board of fire insurance underwriters
or any other agency or source whatsoever, regulating, relating to or imposing
liability or standards of conduct concerning any matter which may be relevant to
the use or occupancy of the Project or any part thereof or the conduct of any
business or activity in, on, under or about the Project or any part thereof, or
any material, substance or thing which may at any time be in, on, under or about
the Project or any part thereof or emanate therefrom.
2.9 “Expiry
Date” shall have the meaning given to it in subsection 1(d).
- 2
-
2.10
“Fiscal Year”
means the period used by Landlord for fiscal purposes in respect of the Project.
Unless otherwise determined by Landlord by written notice to Tenant at any time
or times, each Fiscal Year shall be a calendar year. In the event of a change in
the Fiscal Year, or with respect to a partial Fiscal Year at the beginning or
end of the Term, all appropriate adjustments resulting from a Fiscal Year being
shorter or longer than twelve (12) months shall be made.
2.11
“Hazardous Materials” means any substance or thing or mixture of them which
alone, or in combination, or in concentrations, are flammable, corrosive,
reactive or toxic or which might cause adverse effects or be deemed detrimental
to living things or to the environment (including, but not limited to, any
pollutant, contaminant, toxic or hazardous substance, such as by way of example,
urea formaldehyde, asbestos, polychlorinated biphenyl, pesticides, mold, mildew,
mycotoxins or microbial growths or any other substance the removal, manufacture,
preparation, generation, use, maintenance, storage, transfer, handling or
ownership of which is subject to applicable Laws.
2.12
“Landlord’s Work” - intentionally deleted.
2.13
“Laws” means all statutes, regulations, by-laws, orders, rules, requirements and
directions of all governmental authorities having jurisdiction.
2.14
“Lease” means this Lease including all of the schedules attached
hereto.
2.15
“Lease Year” means each consecutive period of three hundred sixty-five (365)
days (or three hundred sixty-six (366) days in the case of a Lease Year which
includes the month of February in a leap year), except that the first Lease Year
shall commence on the Commencement Date and end on the day before the
anniversary of the first day of the first full month of the Term; each
successive Lease Year shall commence on the anniversary of the first day of the
first full month of the Term.
2.16
“Leasable Areas” means all areas and spaces of the Project to the extent
designated or intended from time to time by Landlord to be leased to tenants,
whether leased or not, but excluding any parking areas and facilities, Storage
Areas, and premises at or below grade.
2.17
|
(a)
|
“Operating
Costs” means the aggregate of all expenses and costs of every kind for
each fiscal period designated by Landlord, as determined in accordance
with reasonable principles and without duplication, incurred by or on
behalf of Landlord with respect to the operation, maintenance, repair,
replacement and management of the Project, including structural repairs
and replacements, and all insurance relating to the Project, provided that
if the Project is less than one hundred (100%) percent completed or
occupied during the whole of any fiscal period, Operating Costs shall be
adjusted to mean the amount obtained by adding to the actual Operating
Costs during such fiscal period such additional costs as would have been
incurred, as determined by Landlord acting reasonably, if the Project had
been one hundred (100%) percent completed and occupied. For clarification,
Landlord shall be entitled to adjust upward only those amounts which may
vary depending on occupancy and in no event shall this provision entitle
Landlord to recover more costs than Landlord actually incurs in respect of
any adjusted item or require Tenant to pay in respect of such adjusted
item more than Tenant would have had to pay had the Project been one
hundred (100%) percent completed and occupied. Without in any way limiting
the generality of the foregoing, Operating Costs shall include all costs
in respect of the following:
|
|
(i)
|
all
remuneration, including wages and fringe benefits, of employees directly
engaged in the operation, maintenance, repair, replacement and management
of the Project;
|
|
(ii)
|
heating,
ventilating, air conditioning and humidity control of the Project and fire
sprinkler maintenance and monitoring, if any, of the
Project;
|
|
(iii)
|
cleaning,
janitorial services, window cleaning and waste
removal;
|
|
(iv)
|
operation,
maintenance, repair and replacements of elevators and escalators, if
any;
|
|
(v)
|
all
utilities supplied to the Project including, without limitation, water,
gas, electricity and sewer charges, excluding those charged directly to
tenants of the Project;
|
- 3
-
|
(vi)
|
landscaping
and maintenance of all outside areas, including snow and ice clearing and
removal and salting of driveways and parking areas and of sidewalks
adjacent to the Project;
|
|
(vii)
|
depreciation
or amortization, over a reasonable period of time in accordance with
reasonable principles, of the costs, including capital costs, of all
improvements, furnishings, fixtures, equipment, machinery, systems and
facilities constructed or installed in or used in connection with the
Project and interest on the undepreciated cost of all items in respect of
which depreciation or amortization is included herein at two (2%) percent
in excess of the prime rate of interest charged by Xxxxxxxx’s bank at
Toronto as of the first day of each Fiscal
Year;
|
|
(viii)
|
all
insurance which Landlord obtains and the cost of any deductible amounts
payable by Landlord in respect of any insured risk or
claim;
|
|
(ix)
|
policing,
supervision, security and traffic
control;
|
|
(x)
|
the
cost of repairs and replacements to, and maintenance of, the Project
including structural maintenance, repairs, improvements and replacements
(with replacements of a capital nature being treated in accordance with
the provisions hereof applicable to capital costs), and the cost of all
supplies, machinery, equipment, facilities, systems and property installed
therein or used in connection therewith, and all repairs and replacements
to and maintenance thereof;
|
|
(xi)
|
all
costs in the nature of Operating Costs in respect of areas, services and
facilities outside the Project, such as sidewalks and boulevards, off-site
utilities and other service connections, and in respect of areas, services
and facilities shared by users of the Project and users of any other
property, to the extent Landlord performs or contributes to the same as a
result of its ownership of the
Project;
|
|
(xii)
|
engineering,
accounting, legal and other consulting and professional services related
to Common Facilities;
|
|
(xiii)
|
business
taxes, if any, on Common
Facilities;
|
|
(xiv)
|
capital
taxes in respect of Landlord’s ownership or other interest in the Project,
namely any tax or taxes exigible under any provincial or federal
legislation based upon or computed by reference to the paid-up capital or
place of business of Landlord as determined for the purposes of such tax
or based upon or computed by reference to the taxable capital employed in
Canada, or any similar tax levied, imposed or assessed in the future in
lieu thereof or in addition thereto by any governmental
authority;
|
|
(xv)
|
Sales
Taxes payable by Landlord on the purchase of goods and services included
in Operating Costs (excluding any such Sales Taxes which are available to
and claimed by Landlord as a credit or refund in determining Landlord’s
net tax liability on account of Sales Taxes, but only to the extent that
such Sales Taxes are included in Operating
Costs);
|
|
(xvi)
|
the
fair rental value of space occupied by Landlord for management,
supervisory or administrative purposes relating to the Project;
and
|
|
(xvii)
|
a
management fee of five (5%) percent of gross amounts received or
receivable by Landlord in respect of the Project for all items, including
all such items as are included in the Lease as Rent, assuming full
occupancy and disregarding any reduction, limitation, deferral or
abatement of any amounts in the nature of
Rent.
|
|
(b)
|
Operating
Costs, however, shall be reduced by the following to the extent actually
received by Landlord:
|
|
|
(i)
|
proceeds
of insurance and damages received by Landlord from third parties to the
extent of costs otherwise included in Operating
Costs;
|
|
(ii)
|
contributions
from parties other than tenants of the Project, if any, in respect of
Operating Costs, such as contributions made by parties for sharing the use
of Common Facilities, but not including rent or fees charged directly for
the use of any Common Facilities such as parking fees and rent for Storage
Areas; and
|
- 4
-
|
(iii)
|
amounts
in the nature of Excess Costs, as defined in subsection 7.3(a), to the
extent received by Landlord from tenants of the
Project.
|
(c)
Operating
Costs, however, shall exclude the following:
|
|
(i)
|
expenses
incurred by Xxxxxxxx in respect of other tenants’ leasehold improvements;
and
|
|
(ii)
|
repairs
or replacements to the extent that the cost of the same is recovered by
Landlord pursuant to original construction
warranties.
|
|
2.18
|
“Premises”
shall have the meaning given to it in Section
4.1.
|
|
2.19
|
“Project”
means those lands described in Schedule “A” hereto and all buildings,
structures, improvements, equipment and facilities of any kind erected or
located thereon from time to time, as such lands, buildings, structures,
improvements, equipment and facilities may be expanded, reduced or
otherwise altered by Landlord in its sole discretion from time to
time.
|
|
2.20
|
“Proportionate
Share” means a fraction which has as its numerator the Rentable Area of
the Premises and which has as its denominator the aggregate Rentable Area
of Leasable Areas within the Project, or such portion or portions of the
Leasable Areas within the Project to which Landlord, acting reasonably
shall allocate such cost of which Tenant is to pay its Proportionate
Share, subject to adjustment pursuant to subsections 7.3(b) and
7.3(c).
|
|
2.21
|
“Realty
Taxes” means all taxes, rates, duties, levies, fees, charges, local
improvement rates, levies and assessments whatever (“Taxes”), whether
municipal, provincial, federal or otherwise, which may be levied, assessed
or charged against or in respect of the Project or any part thereof or any
fixtures, equipment or improvements therein, or against Landlord in
respect of any of the same or in respect of any rental or other
compensation receivable by Landlord in respect of the same, and including
all Taxes which may be incurred by or imposed upon Landlord or the Project
in lieu of or in addition to the foregoing including, without limitation,
any Taxes on or in respect of real property rents or receipts as such (as
opposed to a tax on such rents as part of the income of Landlord) any
commercial concentration levy in respect of the Project, and any licence
fee measured by rents or other charges payable by occupants of space in
the Project.
|
|
2.22
|
“Rent”
shall have the meaning given to it in Section
5.1.
|
|
2.23
|
“Rent
Deposit Agreement” means the rent deposit agreement, if any, attached
hereto.
|
|
2.24
|
“Rentable
Area” of premises shall be the Usable Area of such premises plus the
relevant proportion, as determined by Landlord, of all areas not leased to
any one tenant such as, without limitation, hallways, elevator lobbies,
ground floor lobbies, washrooms, mechanical and service rooms. Every
Rentable Area shall be as determined by Landlord from time to time and
each such determination shall be binding upon the parties
hereto.
|
|
2.25
|
“Sales
Taxes” means all business transfer, multi-stage sales, sales, use,
consumption, value-added or other similar taxes imposed by any federal,
provincial or municipal government upon Landlord, or Tenant, or in respect
of this Lease, or the payments made by Tenant hereunder or the goods and
services provided by Landlord hereunder including, without limitation, the
rental of the Premises and the provision of administrative services to
Tenant hereunder.
|
|
2.26
|
“Storage
Areas” means all areas, if any, designated by Landlord from time to time
to be used by tenants exclusively or primarily for storage
purposes.
|
|
2.27
|
“Tenant’s
Work” shall have the meaning as set out on Schedule “H” attached
hereto.
|
|
2.28
|
“Term”
shall have the meaning given to it in Section
4.2.
|
|
2.29
|
“Usable
Area” when applied to the Premises or any Leasable Areas means the area
measured from the interior face of glass in exterior walls and windows,
from the exterior face of all walls and windows dividing any Leasable
Areas from Common Facilities, and from the centre line of all interior
walls separating any Leasable Areas from other Leasable Areas, all without
deduction for any space occupied by structures, columns, beams, conduits,
ducts or projections of any kind, and all without deduction for the
recessing of any entrance way or boundary wall from the lease line, but
excluding therefrom the area occupied by elevator shafts and building
standard stairwells, and their enclosing walls, which do not serve
exclusively a tenant occupying premises on more than one
floor.
|
- 5
-
|
3.
|
INTENT OF
LEASE
|
3.1 Net Lease
It is the
intent of the parties hereto that, except as expressly herein set out, this
Lease be absolutely net to Landlord and Landlord not be responsible for any
expenses or obligations of any kind whatsoever in respect of the Premises or the
Project.
4.
LEASE OF
PREMISES
4.1 Premises
Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord those premises
(“Premises”) being part of the Project and shown outlined on the plans attached
hereto as Schedules “B” and “B-1”. The purpose of Schedules “B” and “B-1” is to
show the approximate location of the Premises and its contents are not intended
as a representation as to the precise size or dimensions of the Premises or any
other aspects of the Project. The Premises shall extend from the upper surface
of the structural subfloor to the lower surface of the structural ceiling within
the boundaries of the Usable Area of the Premises. The Premises shall exclude
the exterior faces of all perimeter walls, windows and doors of the Premises,
notwithstanding the manner in which Rentable Area is measured.
4.2
Term
The term
of this Lease (the “Term”) shall be for the period described as the Term in
subsection 1(b) hereof, commencing on the Commencement Date and ending on the
Expiry Date, both dates as described in subsections l (c) and (d).
4.3 Fixturing
Period
From the
later of: (i) Xxxxxx’s execution and delivery to Landlord of this Lease; (ii)
Tenant’s delivery to Landlord of insurance certificate(s) evidencing the
requisite insurance coverage under this Lease, (the “Commencement Date of the
Fixturing Period”), the Tenant shall be entitled to possession of Suite 103
Premises until the date preceding the Commencement Date in order to fixture
Suite 103 Premises for the Tenant’s business and, thereafter, if Tenant has
completed its fixturing, Tenant may be permitted continued occupancy of Suite
103 in order to commence carrying on business in Suite 103 Premises (“Fixturing
Period”). During the Fixturing Period, Tenant shall not be obligated to pay
Basic Rent, Operating Costs including utilities, or Realty Taxes but shall be
liable for all other costs and obligations including the costs of any additional
services in accordance with this Lease for which Tenant will continue to be
obligated to pay, and Tenant shall be subject to all the other terms and
conditions of this Lease insofar as they are applicable including, without
limitation, the obligation to maintain insurance, and the provisions relating to
the liability of Tenant for its acts and omissions, and the acts and omissions
of its servants, employees, agents, contractors, invitees, concessionaires and
licensees and the indemnification of Landlord and others under this
Lease.
For
clarity, as of the date hereof, the Tenant occupies the Suite 201 Premises under
a sublease agreement with the current tenant of the Suite 201 Premises and until
the Commencement Date hereof shall be bound by the lease
thereunder.
4.4 Acceptance
of Premises
Tenant
shall accept the Premises in the state and condition in which they are received
from Landlord and Xxxxxx’s entering into possession of the Premises shall be
conclusive evidence of the acceptance by Tenant of the condition and state of
repair of the Premises.
4.5 Licence
to Use Common Facilities
Subject
to all other relevant provisions of this Lease, Landlord grants to Tenant the
nonexclusive licence during the Term to use for their intended purposes, in
common with others entitled thereto, such portions of the Common Facilities as
are reasonably required for the use and occupancy of the Premises during
Business Hours and such other hours as the Common Facilities are open for use,
as determined by Landlord from time to time.
- 6
-
4.6 Quiet
Enjoyment
Subject
to Xxxxxx’s complying with all of the terms of this Lease, Tenant may peaceably
possess and enjoy the Premises for the Term without interruption by Landlord or
any person claiming through Landlord.
4.7 Fixturing
of Premises
By not
later than the Commencement Date, Tenant shall fully finish, furnish, fixture
and staff the whole of the Premises and shall commence its business upon the
whole of the Premises.
|
5.
|
RENT
|
5.1 Tenant
to Pay
|
|
(a)
|
Tenant
shall pay in lawful money of Canada at such address as shall be designated
from time to time by Landlord Basic Rent and Additional Rent (all of which
is herein sometimes referred to collectively as “Rent”) as herein provided
without any deduction, set-off or abatement whatsoever, Tenant hereby
agreeing to waive any set-off rights it may have under any statute or at
law. Subject to subsection 5.1(b), on the Commencement Date and the first
day of each Fiscal Year thereafter and at any time during any Fiscal Year
when required by Landlord, Tenant shall deliver to Landlord as requested
by Landlord post-dated cheques for all payments of Basic Rent and
estimates by Landlord of Additional Rent or any portions thereof payable
during the balance of such Fiscal
Year.
|
|
|
(b)
|
Notwithstanding
anything contained in this Lease to the contrary, provided Tenant in
actual physical occupation of and actively and diligently conducting
business in the whole of Premises is Occulogix, Inc., Tenant shall not be
required to submit post-dated Rent cheques to Landlord in accordance with
the provisions of the preceding paragraph until the earlier to occur of:
(i) Landlord’s issuance of a notice of default to Tenant in accordance
with the provisions of this Lease; and (ii) the third (3rd) instance of
Tenant becoming late with the payment of Rent during the Term, whereupon
Tenant shall immediately deliver to Landlord post-dated Rent cheques for
each month then remaining in the Rental Year (and thereafter Tenant shall
deliver twelve (12) post-dated cheques to Landlord at the beginning of
each subsequent Rental Year).
|
5.2
Basic
Rent
Subject
to Section 3 of Schedule “D” to this Lease, commencing on the Commencement Date,
Tenant shall pay to Landlord a fixed minimum annual rent (‘Basic Rent”) for each
Lease Year of the Term in the annual amount(s) described as Basic Rent in
subsection 1(e), to be paid in equal monthly instalments, as described as Basic
Rent in subsection 1(e), in advance on the first day of each month during the
Term. On the Commencement Date, if it is other than the first day of a calendar
month, Tenant shall pay to Landlord for such partial month Basic Rent computed
on a per diem basis. If an amount per square foot is specified in the
description of Basic Rent in subsection 1(e), then the Basic Rent is intended to
be such amount per square foot of Rentable Area of the Premises per annum, and
the Basic Rent shall be subject to adjustment based upon the Rentable Area of
the Premises determined pursuant to Section 2.24. Within thirty (30) days after
such adjustment, if any, being made, Tenant shall pay to Landlord any deficiency
in previous payments of Basic Rent and Additional Rent and, if Tenant is not in
default under the terms of this Lease, the amount of any overpayment by Tenant
of Basic Rent and Additional Rent shall be paid to Tenant or credited to the
account of Tenant.
5.3
Additional
Rent
In
addition to Basic Rent, Tenant shall pay to Landlord, or as Landlord shall
direct, all other amounts as and when the same shall be due and payable pursuant
to the provisions of this Lease or pursuant to any other obligation in respect
of the Premises, all of which shall be deemed to accrue on a per diem basis; all
of such amounts are herein sometimes referred to as “Additional Rent”. Tenant
shall promptly deliver to Landlord upon request evidence of due payment of all
payments of Additional Rent required to be paid by Tenant
hereunder.
5.4
Deemed
Rent and Allocation
If Tenant
defaults in payment of any Rent (whether to Landlord or otherwise) as and when
the same is due and payable hereunder, Landlord shall have the same rights and
remedies against Tenant upon such default as if such sum or sums were rent in
arrears under this Lease. Landlord may allocate payments received from Tenant
among items of Rent then due and payable by Xxxxxx. No acceptance by Landlord of
payment by Tenant of any amount less than the full amount payable to Landlord,
and no endorsement or direction on any cheque or other written instruction or
statement respecting any payment by Tenant shall be deemed to constitute payment
in full or an accord and satisfaction of any obligation of Tenant.
- 7
-
|
5.5
|
Monthly
Payments of Additional Rent
|
Landlord
may from time to time by written notice to Tenant estimate or re-estimate any
amount(s) payable by Tenant to Landlord hereunder including without limitation,
amounts in respect of Operating Costs, Realty Taxes and utilities, for the then
current or next following Fiscal Year, provided that the fiscal period used by
Landlord in respect of any particular item may correspond to a shorter period
within any Fiscal Year where such item, for example Realty Taxes, is payable in
full by Landlord over such shorter period. The amounts so estimated shall be
payable by Tenant in advance in equal monthly instalments over the Fiscal Year
or other fiscal period on the same days as the monthly payments of Basic Rent.
Landlord may, from time to time, alter the fiscal period selected in each case.
As soon as practical after the expiration of each Fiscal Year, Landlord shall
furnish to Tenant an audited statement which sets out the total amount of
Operating Costs and Realty Taxes for the Project, together with a statement
(“Final Statement”) which sets out the Tenant’s Proportionate Share of Operating
Costs, its share of Realty Taxes and the cost of its utilities and other charges
that are payable by it under any other relevant provisions of this Lease for
such Fiscal Year. Upon written request from Tenant (Tenant agreeing to act
reasonably and in a bona fide manner in making a request), Landlord shall, at
Tenant’s expense, provide Tenant with reasonable information within Landlord’s
possession or control in order to assist Xxxxxx in substantiating Tenant’s
Proportionate Share of Operating Costs and its share of Realty Taxes, provided
that Tenant makes its request within sixty (60) days after delivery of the Final
Statement. If the amount determined to be payable by Tenant as aforesaid shall
be greater or less than the payments on account thereof previously made by
Tenant, then within thirty (30) days after delivery of such Final Statement the
appropriate adjustments will be made and Tenant shall pay any deficiency to
Landlord and, if Tenant is not in default under the terms of this Lease, the
amount of any overpayment shall be paid to Tenant or credited to the account of
Tenant. Such Final Statement of Landlord shall be final and binding and Tenant
shall have no right to dispute the accuracy or propriety of any amounts or
calculations included therein, except to the extent that Tenant shall have,
within sixty (60) days after being given such Final Statement, demonstrated to
the satisfaction of Landlord any error in such Final Statement.
|
6.
|
TAXES
|
6.1 Taxes
Payable by Xxxxxx
Subject
to Section 3 of Schedule “D” to this Lease, commencing on the Commencement Date,
and thereafter at all times throughout the Term, Tenant shall pay to Landlord or
the relevant taxing authority, as required by Xxxxxxxx, not later than the time
when they fall due all Realty Taxes levied, confirmed, imposed, assessed or
charged (herein collectively or individually referred to as “charged”) against
or in respect of the Premises and all buildings, furnishings, fixtures,
equipment, improvements and alterations in or forming part of the Premises, and
including, without limiting the generality of the foregoing, any such Realty
Taxes charged against the Premises in respect of:
|
(i)
|
the
land on which the Premises is situate;
and
|
|
(ii)
|
any
Common Facilities.
|
In
addition, Tenant shall pay, in the same manner as it is required to pay or
contribute to Operating Costs pursuant to Section 7.2 hereof, the Proportionate
Share of Realty Taxes charged against or in respect of Common Facilities, and
that portion allocated to the Project by Landlord, acting reasonably, of the
amount, if any, of Realty Taxes charged against the Project in excess of the
amount of Realty Taxes, in the aggregate, charged against Leasable
Areas.
6.2 Determination
of Tenant’s Taxes
Whether
or not there is a separate bill for Realty Taxes charged against the Premises or
a separate assessment, the Realty Taxes charged against the Premises shall be
determined by Landlord acting reasonably, the cost of making such determination
to be included in Operating Costs; in making such determination Landlord shall
have the right, without limiting its right to do otherwise, to establish
separate assessments for the Premises and all other portions of the Project by
using such criteria as Landlord, acting reasonably, shall determine to be
relevant including, without limitation:
- 8
-
|
|
(a)
|
the
then current established principles of assessment used by the relevant
assessing authorities and on the same basis as the assessment actually
obtained for the Project as a whole or the part thereof in which the
Premises are located;
|
|
|
(b)
|
assessments
of the Premises and any other portions of the Project in previous periods
of time;
|
|
|
(c)
|
the
Proportionate Share; and
|
|
|
(d)
|
any
act, religion or election of Tenant or any other occupant of the Project
which results in an increase or decrease in the amount of Realty Taxes
which would otherwise have been charged against the Project or any portion
thereof.
|
|
6.3
|
Business
Taxes and Sales Taxes
|
|
|
(a)
|
Tenant
shall pay to the relevant taxing authority as and when the same are due
and payable all taxes charged in respect of any business conducted on, or
any use or occupancy of, the
Premises.
|
|
|
(b)
|
Tenant
shall pay to Landlord when due all Sales Taxes imposed on Landlord or
Tenant with respect to Rent payable by Tenant hereunder or in respect of
the rental of space under this
Lease.
|
6.4 Tax
Bills and Assessment Notices
Tenant
shall deliver to Landlord forthwith upon Xxxxxx’s receiving the same copies of
all assessment notices, tax bills, receipts and other documents received by
Tenant relating to Realty Taxes on the Premises or the Project.
6.5 Contest
of Realty Taxes
Landlord
may contest any Realty Taxes and appeal any assessments related thereto and may
withdraw any such contest or appeal or may agree with the relevant authorities
on any settlement in respect thereof. Tenant will co-operate with Landlord in
respect of any such contest and appeal and shall provide to Landlord such
information and execute such documents as Landlord requests to give full effect
to the foregoing. All costs of any such contest and appeal by Landlord shall be
included in Operating Costs. Tenant will not contest any Realty Taxes or appeal
any assessments related thereto.
|
7.
|
OPERATION OF
PROJECT
|
7.1 Operation
of Project by Landlord
|
|
(a)
|
Landlord
shall repair, maintain and operate the Project, other than Leasable Areas,
in a reasonable manner having regard to its size, age, location and
character.
|
|
|
(b)
|
Landlord
may at its sole option, provide janitorial and cleaning services to the
Premises substantially in accordance with prevailing standards for office
buildings of a similar standard in the area in which the Project is
located. Landlord shall not be liable for any loss or damage caused in
performance of any maintenance or cleaning services provided to the
Premises, no matter how caused, whether by theft and whether or not
resulting from or contributed to by the negligence of Landlord, its
servants, agents, employees, contractors or persons for whom Xxxxxxxx is
in law responsible. Without in any way limiting or affecting the
generality or interpretation of the foregoing, Landlord shall in no event
be liable for any indirect or consequential damages suffered by Tenant or
any others.
|
7.2 Tenant’s
Payment of Operating Costs
Subject
to Section 3 of Schedule “D” to this Lease, commencing on the Commencement Date
and thereafter at all times throughout the Term Tenant shall pay to Landlord the
Proportionate Share of Operating Costs. Subject to Section 5.5, the amounts
payable by Tenant pursuant to this Section 7.2 shall be paid to Landlord within
ten (10) days after the submission to Tenant of a statement showing the amount
payable by Xxxxxx from time to time. All amounts payable under this Article 7 in
respect of any period not falling entirely within the Term shall be adjusted on
a per diem basis.
- 9
-
|
7.3
|
Adjustments
to Operating Costs
|
|
|
(a)
|
If
by reason of the conduct of business on the Premises outside Business
Hours, or by reason of the particular use or occupancy of the Premises or
any of the Common Facilities by Tenant, its employees, agents or persons
having business with Tenant, additional costs in the nature of Operating
Costs, such as utility charges, security costs, and costs of heating,
ventilating and air conditioning, are incurred in excess of the costs
which would otherwise have been incurred for such items (“Excess Costs”),
then Landlord shall have the right to determine on a reasonable basis and
require Tenant to pay such Excess
Costs.
|
|
|
(b)
|
If
Tenant or any other tenant of the Project, pursuant to its lease or
otherwise by arrangement with Landlord, provides at its cost any goods or
services the cost of which would otherwise be included in Operating Costs,
or if any goods or services the cost of which is included in Operating
Costs benefit any portion of the Project to a materially greater or lesser
extent than any other portion of the Project, then either the denominator
for determining a Proportionate Share, or alternatively the amount of
Operating Costs, may be adjusted as determined by Landlord acting
reasonably to provide for the equitable allocation of the cost of such
goods and services among the tenants of the
Project.
|
|
|
(c)
|
Further,
Tenant acknowledges that the Premises may form part of a multi-use project
comprising various office towers, and Tenant acknowledges that the
Operating Costs and Realty Taxes may be allocated on a reasonable basis
between each portion of the Project, based on reasonable cost-sharing
principles as applied by Landlord.
|
|
8.
|
USE OF
PREMISES
|
8.1 Use
of Premises
|
|
(a)
|
To
the intent that this covenant shall run with the Premises for the benefit
for the Project, excluding the Premises, Tenant covenants that it shall
not use and shall not permit the Premises to be used for any purpose other
than as described as Use of Premises in subsection 1(h) hereof. Tenant
acknowledges that Landlord is making no representation or warranty as to
Tenant’s ability to use the Premises for its intended use and Tenant
shall, prior to executing this Lease, perform such searches and satisfy
itself that its use is permitted under all applicable Laws and that Tenant
will be able to obtain an occupancy
permit.
|
|
|
(b)
|
Tenant
acknowledges that it is aware of the nature of the exclusive use rights
granted to certain other tenants of the Building and the Project, more
particularly described in Schedule “E” attached hereto, and agrees that it
shall not be permitted at any time during the Term and all extensions or
renewals thereof to carry out any business in the Premises in such a
manner as to infringe upon any such exclusive use provisions. Xxxxxx also
agrees that it shall not be permitted at any time during the Term and all
extensions or renewals thereof to carry on business in the Premises in
such a manner as to infringe upon any future exclusive uses which Landlord
may grant from time to time. Tenant shall indemnify and save Landlord
harmless from any and all liability, losses, damages and expenses incurred
or suffered by Landlord in connection with the infringement or alleged
infringement by Tenant of any of such exclusive use provisions listed or
in remedying or attempting to remedy such infringement or alleged
infringement including, without limitation, Landlord’s legal fees and
expenses on a substantial indemnity
basis.
|
|
|
(c)
|
Tenant
acknowledges and agrees that in no event will an exclusive use or a
restrictive covenant be inferred or implied in its favour by reason of any
restrictions on Tenant’s business or in the foregoing provisions of this
Section 8.1.
|
8.2 Conduct
of Business
At all
times throughout the Term, Tenant shall continuously and actively and diligently
conduct its business in the whole of the Premises in a first class and reputable
manner.
8.3 Tenant’s
Fixtures
Tenant
shall install and maintain in the Premises at all times during the Term
first-class trade fixtures including furnishings and equipment adequate and
appropriate for the business to be conducted on the Premises, all of which shall
be kept in good order and condition. Tenant shall not remove any trade fixtures
or other contents from the Premises during the Term except, with the prior
written consent of Landlord, in the ordinary course of business or for the
purpose of replacing them with others at least equal in value and function to
those being removed.
- 10
-
|
8.4
|
Signs
|
Tenant
shall not erect, install or display any sign or display on or visible from the
exterior of the Premises except for a building standard sign on the main entry
door to the Premises and on the building directory board, if any, both to be
installed by Landlord at Tenant’s cost to be paid forthwith upon
request.
|
8.5
|
Waste
Removal
|
Tenant
shall not allow any refuse, garbage or any loose, objectionable material to
accumulate in or about the Premises or the Project and will at all times keep
the Premises in a clean and neat condition. Tenant at its expense shall at all
times comply with Landlord’s rules and regulations regarding the separation,
removal and disposal of waste from the Premises. Notwithstanding the foregoing,
Landlord shall have the option to take over the function of separating, removing
and/or disposing of the waste and the cost to Landlord of same shall be included
in Operating Costs and any proceeds obtained may be retained by Landlord for its
own account. Until removed from the Project all waste from the Premises shall be
kept in appropriate containers within the Premises.
|
8.6
|
Pest
Control
|
Tenant
shall co-operate with Landlord and with any contractor(s) engaged by Landlord in
respect of pest extermination in the Premises and the Building.
|
8.7
|
Waste
and Nuisance
|
|
|
(a)
|
Tenant
shall not cause, suffer or permit any waste or damage to the Premises or
leasehold improvements, fixtures or equipment therein nor permit any
overloading of the floors thereof and shall not use or permit to be used
any part of the Premises for any dangerous, noxious or offensive activity
or goods and shall not do or bring anything or permit anything to be done
or brought on or about the Premises or the Project which results in undue
noise or vibration or which Landlord may reasonably deem to be hazardous
or a nuisance or annoyance to any other tenants or any other persons
permitted to be on the Project, and Tenant shall immediately take steps to
remedy, remove or desist from any activity, equipment or goods or
conditions on or emanating from the Premises to which Landlord
objects on a reasonable basis. Tenant shall take every reasonable
precaution to protect the Premises and the Project from risk of damage by
fire, water or the elements or any other
cause.
|
|
|
(b)
|
Tenant
shall not itself, and shall not permit any of its employees, servants,
agents, contractors or persons having business with Tenant, to obstruct
any Common Facilities or use or permit to be used any Common Facilities
for other than their intended purposes. Without limiting the foregoing,
Tenant shall not permit any equipment, goods or material whatsoever to be
placed or stored anywhere in or on the Common Facilities, including
without limitation on the loading docks and other outside areas adjacent
to the Premises. Tenant shall not, and shall not permit anyone else to,
place anything on the roof of the Building or go on to the roof of the
Building for any purpose whatsoever, without Landlord’s prior written
consent, which may be arbitrarily withheld in Landlord’s sole
discretion.
|
|
|
(c)
|
Tenant
shall not use any advertising, transmitting or other media or devices
which can be heard, seen, or received outside the Premises, or which could
interfere with any communications or other systems outside the
Premises.
|
|
|
(d)
|
Tenant
shall be solely responsible for any contaminant, pollutant or toxic
substance at any time affecting the Premises resulting from any act or
omission of Tenant or any other person on the Premises or any activity or
substance on the Premises during the Term, and any period prior to the
Term during which the Premises were used or occupied by or under the
control of Tenant, and shall be responsible for the clean-up and removal
of any of the same and any damages caused by the occurrence, clean-up or
removal of any of the same, and Tenant shall indemnify Landlord in respect
thereof.
|
- 11
-
|
|
(e)
|
Xxxxxx
agrees to complete the environmental questionnaire attached hereto as
Schedule “G” and to forthwith advise Landlord in writing of any changes in
its activities that may alter the information provided
herein.
|
|
8.8
|
Compliance
with Laws
|
Tenant
shall be solely responsible for obtaining from all authorities having
jurisdiction all necessary permits, licences and approvals as may be necessary
to permit Tenant to occupy the Premises and conduct its business thereon, as
required by all applicable Laws. Tenant shall comply at its own expense with all
applicable Laws respecting the use, condition and occupation of the Premises,
and all leasehold improvements, fixtures, equipment and contents
thereof.
|
8.9
|
Deliveries
|
All
deliveries to and from the Premises, and loading and unloading of goods,
merchandise, refuse, materials and any other items, shall be made only by way of
such driveways, access routes, doorways, corridors and loading docks as Landlord
may from time to time designate and shall be subject to all applicable rules and
regulations made by Landlord from time to time pursuant to Section
17.4.
|
8.10
|
Window
Coverings
|
Tenant
shall comply with all rules and regulations from time to time made by Landlord
in respect of window coverings on the interior of the Premises, in order to
maximize the efficiency of the climate control equipment in or serving the
Premises or to maintain an attractive uniform appearance of the Project from the
exterior thereof.
|
8.11
|
Prohibited
Uses
|
Tenant
shall not cause, suffer or permit the Premises or any part thereof to be used at
any time during the Term for any of the following businesses or
activities:
|
|
(a)
|
any
retail or wholesale sales activities or any
auction;
|
|
|
(b)
|
any
vending machines or other coin operated machines, entertainment or games
machines or any other mechanical or electrical serving or dispensing
machines or devices whatsoever or the sale or supply of food or beverages
(other than food or beverages such as are routinely served in office
premises without charge to employees such as coffee and soft drinks)
unless expressly permitted in writing by Landlord, in its sole
discretion;
|
|
|
(c)
|
any
sale of tickets for theatre or other entertainment events or lottery
tickets;
|
|
|
(d)
|
any
type of business or business practice which would, in the sole opinion of
Landlord, tend to lower the character or image of the Project or any
portion thereof;
|
|
|
(e)
|
any
use which in any way contravenes any restrictive covenants in leases
granted by Landlord; Tenant covenants and agrees that it will not carry on
in the Premises any business which will in any way place Landlord in
breach of any such restrictive covenants and Tenant will indemnify and
save Landlord harmless from and against all actions, claims, demands and
costs with respect thereto; this subsection (e) shall not be interpreted
to prevent Tenant from carrying on in the Premises any business to the
extent expressly permitted pursuant to Section 8.1
hereof;
|
|
|
(f)
|
any
business or activity not in compliance with all
Laws;
|
|
|
(g)
|
a
consulate, embassy, trade commission or other representative of a foreign
government;
|
|
|
(h)
|
a
governmental agency, service or office, ministry, social services agency
(including a welfare, immigration office or any other governmental office
which would result in access to the Premises to the general
public);
|
|
|
(i)
|
an
office for any political action, lobbying or for the primary purpose of
any politically oriented or motivated
activities;
|
|
|
(j)
|
an
office for a union;
|
|
|
(k)
|
a
social services agency;
|
- 12
-
|
|
(l)
|
in
a manner which would result in people waiting in the Common Facilities of
the Project;
|
|
|
(m)
|
in
any manner which would result in unemployed or homeless people or those in
need of social assistance attending at the
Project;
|
|
|
(n)
|
for
a call centre; or
|
|
|
(o)
|
for
a school or training centre of any
kind.
|
The
inclusion of the foregoing provisions of this Section 8.11 shall not be deemed
to be a representation or warranty of Landlord that any of the foregoing
activities will not be authorized by Landlord to be conducted on any part of the
Project.
Tenant
shall forthwith, upon the request of Landlord, discontinue any business, conduct
or practice carried on or maintained in or about the Premises which, in
Landlord’s sole opinion, may damage or reflect unfavourably upon Landlord, the
Project, or any other tenants or occupants thereof.
If, in
the opinion of Landlord, Tenant is in breach of any of the provisions of this
Section 8.11, Tenant shall immediately discontinue such use upon Landlord’s
written request.
|
9.
|
SERVICES AND
UTILITIES
|
9.1 Utilities
|
|
(a)
|
Tenant
shall promptly pay for, as and when they fall due, to Landlord or as
Landlord shall from time to time direct, all costs of supplying water,
electricity, gas, and any other utilities which are available and supplied
to or in respect of the Premises, and all costs for all fittings,
connections and meters and all work performed in connection with any
services or utilities provided to the Premises. Tenant shall promptly
execute and deliver any agreements required by Landlord or by utilities
suppliers in respect of the supply of any utilities to the Premises.
Tenant’s use of any such utilities shall not exceed the available capacity
of the existing systems from time to
time.
|
|
|
(b)
|
Should
there be no individual meters for the measurement of the consumption of
any utilities supplied to the Premises then Landlord, acting reasonably,
may allocate the cost of such utilities among the various users thereof.
If required by Landlord, Tenant shall install at its expense a separate
meter or meters to measure the consumption of any or all utilities in the
Premises. The cost of any utilities which are not charged to tenants of
the Building individually shall be included in Operating
Costs.
|
9.2 Heating
and Air Conditioning
|
|
(a)
|
Tenant
shall be responsible for and promptly pay for as and when due, to Landlord
or as Landlord shall from time to time direct, all costs of heating,
ventilating, air conditioning and humidity control in the Premises. The
said costs payable by Tenant shall be as determined by separate meters, if
any, and otherwise as determined by Landlord acting reasonably. Tenant
shall install at its expense such meters and in such locations as shall be
required by Landlord to measure the supply of or costs to be charged for
heating, ventilating, air conditioning and humidity control in the
Premises.
|
|
|
(b)
|
Tenant
shall operate the heating, ventilating, air conditioning and humidity
control equipment within or serving the Premises in such manner as to
maintain such reasonable conditions of temperature, air circulation and
humidity within the Premises as determined by Landlord and, in any event,
in such manner that there shall be no direct or indirect use of heating,
ventilating, air conditioning and humidity control from the Common
Facilities for the Premises. Tenant shall comply with all rules and
regulations as Landlord shall make from time to time respecting the
maintenance, repair and operation of all such heating, ventilating and air
conditioning equipment.
|
|
|
(c)
|
Landlord
shall have the right to require Tenant to pay as Excess Costs, pursuant to
subsection 7.3(a), any increase in Operating Costs caused by: (a) the
particular use or occupancy of the Premises; (b) above-normal consumption
of electrical or other power on the Premises; (c) the configuration of
partitions or other items on the Premises; or (d) the failure of Tenant to
shade windows.
|
- 13
-
9.3
Non-Liability
of Landlord
Landlord
shall not be liable for any damages, direct or indirect, resulting from or
contributed to by any interruption or cessation in supply of any utilities or
heating, ventilating, air conditioning and humidity control. Without limiting
the generality of the foregoing, Landlord shall not be liable for and Tenant
shall indemnify Landlord against any and all indirect or consequential damages
or damages for personal discomfort or illness of Tenant or any persons permitted
by it to be on the Premises, by reason of the suspension or non-operation of any
utilities, heating, ventilating, air conditioning or humidity
control.
9.4
Landlord’s
Suspension of Utilities
In order
to effect any maintenance, repairs, replacements or alterations to any of such
utilities, heating, ventilating, air conditioning or humidity control equipment
or systems, or any other part of the Project, Landlord shall have the right to
modify or temporarily discontinue or suspend the operation of any such equipment
or systems as required from time to time.
|
10.
|
MAINTENANCE, REPAIRS
AND ALTERATIONS
|
|
10.1
|
Maintenance
and Repairs of Premises
|
At all
times throughout the Term, Tenant at its sole expense shall perform such
maintenance (including painting and repair or replacement of any interior
finishings), repairs and replacements as required to keep the Premises, all
contents thereof and all services and equipment located in or primarily serving
the Premises, in first-class appearance and condition, and in accordance with
all Laws and Landlord’s reasonable requirements, subject only to the obligations
of Landlord expressly provided in Section 10.7. For the purposes of this Section
10.1, the Premises shall include, without limitation, all leasehold
improvements, perimeter walls and glass and doors.
10.2 Approval
of Repairs and Alterations
|
|
(a)
|
Tenant
shall not make any repairs, replacements, changes, additions, improvements
or alterations (hereinafter referred to as “Alterations”) to the Premises
without Landlord’s prior written consent, which consent shall not be
unreasonably withheld unless such proposed Alterations might affect the
demising walls or entrances of the Premises or the structure of the
Building or the coverage of the Project for zoning purposes, or the
parking requirements for the Project, or impair the value or usefulness of
the Premises or the Project, in any of which cases Xxxxxxxx’s consent may
be unreasonably withheld in Landlord’s sole
discretion.
|
|
|
(b)
|
With
its request for consent, Tenant shall submit to Landlord details of the
proposed Alterations including plans and specifications prepared by
qualified architects or engineers, and such Alterations shall be completed
in accordance with the plans and specifications approved in writing by
Landlord.
|
|
|
(c)
|
All
Alterations shall be planned and completed in compliance with all Laws and
Tenant shall, prior to commencing any Alterations, obtain at its expense
all necessary permits and licences. Prior to the commencement of any such
Alterations Tenant shall furnish to Landlord such evidence as reasonably
required by Landlord of the projected cost of Alterations and Tenant’s
ability to pay for same, together with such indemnification against costs,
liens and damages as Landlord shall reasonably require including, if
required by Landlord, a performance, completion and labour and materials
bond acceptable to Landlord guaranteeing completion of such
Alterations.
|
|
|
(d)
|
All
Alterations shall be performed at Tenant’s cost, promptly and in a good
and workmanlike manner and in compliance with Landlord’s rules and
regulations, by competent contractors or workmen who shall be first
approved in writing by Landlord, which approval shall not be unreasonably
withheld. Unless expressly authorized by Landlord in writing to the
contrary, all Alterations which might cost in excess of Ten Thousand
($10,000.00) Dollars to complete or which might require a building permit
or which might affect the structure or any mechanical, electrical,
utility, sprinkler, communications or other similar systems within the
Premises or the Project, shall, at Landlord’s option, be performed at
Tenant’s expense by Landlord or by contractors designated by Landlord and
under Xxxxxxxx’s supervision and under the supervision of a qualified
architect or engineer approved by Landlord, in advance. For all
Alterations performed by Landlord or at Landlord’s expense or under
Xxxxxxxx’s supervision, Tenant shall pay forthwith upon request all
amounts paid or payable by Landlord to third parties and all reasonable
charges of Landlord for its own personnel plus fifteen (15%) percent of
such amounts and charges for Landlord’s inspection and supervision. All
Alterations, the making of which might disrupt other tenants or occupants
of the Project or the public, shall be performed outside Business
Hours.
|
- 14
-
|
(e)
|
If
Tenant performs any such Alterations without compliance with all of the
foregoing provisions of this Article 10, Landlord shall have the right to
require Tenant to remove such Alterations
forthwith.
|
|
(f)
|
Tenant
shall pay to Landlord forthwith upon request all of Landlord’s reasonable
costs including, without limitation, fees of architects, engineers and
designers, incurred in dealing with Xxxxxx’s request for Landlord’s
consent to any Alterations, whether or not such consent is granted, and in
inspecting and supervising any such Alterations and Landlord shall have
the right to require Tenant to pay Landlord a deposit on account of such
costs as a precondition to Landlord’s granting such
consent.
|
10.3 Repair
According to Xxxxxxxx’s Notice
Landlord
or any persons designated by it shall have the right to enter the Premises at
any time to view the state of repair and condition thereof and Tenant shall
promptly perform according to Landlord’s written notice any maintenance
(including painting and repair or replacement of any interior finishings),
repairs or replacements in accordance with Tenant’s obligations
hereunder.
|
10.4
|
Notice
by Tenant
|
Tenant
shall give immediate written notice to Landlord of any accident, defect or
damage in any part of the Premises or the Project which comes to the attention
of Tenant or any of its employees or contractors notwithstanding the fact that
Landlord may have no obligation in respect of the same.
|
10.5
|
Ownership
of Leasehold Improvements
|
All
leasehold improvements installed in or about the Premises shall forthwith upon
the installation thereof become the property of Landlord but without Landlord’s
thereby accepting any responsibility in respect of the maintenance, repair or
replacement thereof. The expression “leasehold improvements” where used in this
Lease includes, without limitation, all fixtures, installations, alterations and
additions from time to time made or installed in or about the Premises, and
includes all of the following, whether or not they are trade fixtures or easily
removable: doors, partitions and hardware; mechanical, electrical and utility
installations; carpeting, drapes, other floor and window coverings and drapery
hardware; heating, ventilating, air conditioning and humidity control equipment;
lighting fixtures; built-in furniture and finishings; counters in any way
connected to the Premises or to any utility services located therein. The only
exclusions from “leasehold improvements” are free-standing furniture, trade
fixtures and equipment not in any way connected to the Premises or to any
utilities systems located therein.
|
10.6
|
Construction
Liens
|
Tenant
shall make all payments and take all steps as may be necessary to ensure that no
lien is registered against the Project or any portion thereof as a result of any
work, services or materials supplied to Tenant or the Premises. Tenant shall
cause any such registrations to be discharged or vacated immediately after
notice from Landlord, or within ten (10) days after registration, whichever is
earlier. Tenant shall indemnify and save harmless Landlord from and against any
liabilities, claims, liens, damages, costs and expenses, including legal
expenses, arising in connection with any work, services or materials supplied to
Tenant or the Premises. If Tenant fails to cause any such registration to be
discharged or vacated as aforesaid then, in addition to any other rights of
Landlord, Landlord may, but shall not be obliged to, discharge the same by
paying the amount claimed into court, and the amounts so paid and all costs
incurred by Landlord, including legal fees and disbursements, shall be paid by
Tenant to Landlord forthwith upon demand.
|
10.7
|
Landlord’s
Repairs
|
Subject
to the provisions of Article 12 herein and subject to Tenant’s obligations
hereunder, to the extent that the failure to do so would materially
detrimentally affect access to or use of the Premises, on reasonable notice from
Tenant Landlord shall repair: (a) defects in the structure of the Project and
exterior walls of the Building; and (b) transportation, electrical, mechanical
and drainage equipment and systems forming part of the Project but not located
within the Premises and not serving exclusively the Premises. Landlord’s costs
of compliance with this Section 10.7 shall be included in Operating Costs to the
extent set out in Section 2.17. Provided that to the extent that such repair is
necessitated directly or indirectly by any act or omission of Tenant or any
servant, employee, agent, contractor, invitee or licensee of Tenant, Tenant
shall be solely responsible for the cost of such repairs in accordance with
Section 10.8 and shall indemnify Landlord in respect thereof.
- 15
-
|
10.8
|
Special
Services
|
|
|
(a)
|
Tenant
shall pay Landlord 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
of which are included in Operating Costs. Unless otherwise expressly
agreed between Landlord and Tenant to the contrary in respect of any
specific matter from time to time, 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 on demand at Landlord’s cost for the same plus
fifteen (15%) percent of such amounts and charges for inspection and
supervision.
|
|
|
(b)
|
Landlord
shall be the exclusive supplier in respect of the Premises, at Tenant’s
expense, for replacement of tubes, bulbs and ballasts, for any services
requiring drilling or otherwise penetrating floors, walls or ceilings, and
for locksmithing and security arrangements. If Landlord, in its sole
discretion, agrees in writing with Tenant that it shall not be the
exclusive supplier of any of the aforesaid services, then only persons
approved by Landlord acting reasonably may supply same to the
Premises.
|
|
11.
|
END OF
TERM
|
11.1 Vacating
of Possession
Forthwith
upon the expiry or earlier termination of the Term, Tenant shall deliver to
Landlord vacant possession of the Premises in such condition in which Tenant is
required to keep the Premises during the Term pursuant hereto and shall leave
the Premises in neat and clean condition and shall deliver to Landlord all keys
for the Premises and all keys or combinations to locks on doors or vaults in the
Premises.
11.2 Removal
of Trade Fixtures
Provided
Tenant has paid all Rent and is not otherwise in default hereunder, or if
otherwise authorized or requested by Landlord, at the expiry or earlier
termination of the Term Tenant shall remove its trade fixtures and repair all
damage resulting from the installation or removal of such trade fixtures. If at
the expiry or earlier termination of the Term Tenant does not remove its trade
fixtures or any of its other property on the Premises, Landlord shall have no
obligation in respect thereof and may sell or destroy the same or
have them removed or stored at the expense of Tenant; at the option
of Landlord, such trade fixtures or property shall become the
absolute property of Landlord without any compensation to Tenant.
|
11.3
|
Removal
of Leasehold Improvements
|
|
|
(a)
|
Notwithstanding
that the leasehold improvements become the property of Landlord upon
installation, at the expiry or earlier termination of the Term Tenant
shall remove any or all of such leasehold improvements made or installed
in or about the Premises by Tenant, or by Landlord as Tenant’s
contractor, as required by Landlord and in so doing shall repair all
damage resulting from, and shall restore the Premises to their condition
prior to, the installation and removal of such leasehold
improvements.
|
|
|
(b)
|
Notwithstanding
anything in the foregoing to the contrary, provided Tenant in actual
physical occupancy of and actively and diligently conducting business in
the whole of the Premises is Occulogix, Inc., upon the expiry or earlier
termination or sooner surrender of this Lease, Tenant’s obligation for
removal of leasehold improvements shall extend only to: (i) those
leasehold improvements installed by or on behalf of Tenant without
Xxxxxxxx’s prior written consent; and (ii) those Non-Standard Leasehold
Improvements as Landlord shall require to be removed, and Tenant shall
restore the Premises and the Project to the condition in which they
existed prior to the installation and removal of such improvements. The
term “Non-Standard Leasehold Improvements” shall mean: computer rooms
and/or any other raised-floor environments; non-standard heating,
ventilating and air conditioning systems installed for the specific use of
the Premises; internal stairwells; custom lighting and electrical
installations; dry-wall ceilings; telecommunication equipment (including
all cabling, wiring, and conduits which have been installed by or on
behalf of the Tenant); oversized boardrooms; training rooms; safes; vaults
and, whether located within the Premises or elsewhere in the Project, any
back-up and/or emergency power supplies, antennae, satellite dishes or
other communication facilities including, without limitation,
creating within the Premises a large number of small offices and corridors
which change direction or discontinue. Landlord may do or arrange to have
done the work necessary to remove such improvements from the Premises if
Tenant fails to do so, and Tenant shall pay for Landlord’s costs of so
doing, plus an administration fee representing Landlord’s costs to
supervise and inspect such work, in the amount of fifteen (15%) percent of
such costs, forthwith upon demand
therefor.
|
- 16
-
11.4 Overholding
by Xxxxxx
If Tenant
remains in possession of all or any part of the Premises after the expiry of the
Term with the consent of Landlord but without any further written agreement,
this Lease shall not be deemed thereby to have been extended and Tenant shall be
deemed to be occupying the Premises as a monthly tenant on the same terms as set
forth in this Lease insofar as they are applicable to a monthly tenancy except
the monthly Basic Rent shall be one hundred and fifty percent (150%) of the
monthly Basic Rent payable during the last twelve months of the
Term.
|
12.
|
DAMAGE AND
DESTRUCTION
|
12.1 Insured
Damage to Premises
|
|
(a)
|
If
there is damage to or destruction of the Premises caused by an occurrence
against which, and to not more than the extent that, Landlord either is
required to insure pursuant to this Lease or is otherwise
insured (“Insured Damage”), then the following provisions of this Section
12.1 shall apply.
|
|
|
(b)
|
If
such damage or destruction is such as to render the whole or any part of
the Premises unusable for the purpose of Tenant’s use and occupancy
thereof, Landlord shall deliver to Tenant within thirty (30) days
following the occurrence of such damage or destruction its reasonable
opinion as to whether or not the same is capable of being repaired, to the
extent of Landlord’s repair obligations hereunder, within one hundred
eighty (180) days following such
occurrence.
|
|
|
(c)
|
If
this Lease is not terminated as herein provided, Landlord, to the extent
of insurance proceeds which it receives or would have received had it
maintained such insurance as it is required to maintain hereunder, and to
the extent that any mortgagee(s) entitled to be paid such
insurance proceeds consents to the use of the same for repair
of such damage or destruction, shall diligently proceed to perform repairs
to the Premises to the extent of its obligations pursuant to Section 10.7
hereof; and Tenant, commencing as soon as practicable but without
interfering with Landlord’s repairs, shall diligently perform such repairs
as are Tenant’s responsibility pursuant
hereto.
|
|
|
(d)
|
If
in Landlord’s reasonable opinion, the Premises are not capable of being
repaired as aforesaid within one hundred eighty (180) days following such
occurrence, Landlord may elect, by written notice to the Tenant within
thirty (30) days after delivery by Landlord of the
opinion provided for in subsection 12.1(b) above, to terminate
this Lease, whereupon Tenant shall immediately surrender possession of the
Premises and Basic Rent and all other payments for which Tenant is liable
pursuant hereto shall be apportioned to the effective date of such
termination.
|
|
|
(e)
|
If
the damage is such as to render the whole or any part of the Premises
unusable in whole or in part for the purpose of Tenant’s use and occupancy
thereof for a period of five (5) days or more, then the Basic
Rent payable hereunder shall xxxxx for the portion of such period in
excess of five (5) days, to the extent that Tenant’s use and occupancy of
the Premises is in fact diminished, which determination shall be made by
Landlord, until the earlier of: (i) the thirtieth (30th) day after the
Premises are determined by Landlord to be ready for Tenant to commence its
repairs to the Premises; and (ii) the date on which Xxxxxx first commences
the conduct of business in any part of the Premises which had been
damaged.
|
- 17
-
|
|
(f)
|
The
respective obligations of Landlord and Tenant with respect to repair of
the Premises following any damage or destruction shall be performed with
all reasonable speed and in accordance with all applicable obligations to
repair contained herein. Tenant acknowledges that its obligations to
repair the Premises after such damage or destruction shall be performed at
its sole cost without any contribution by Landlord whether or not the
damage or destruction was caused by Xxxxxxxx’s fault and whether or not
Landlord had at any time made any contribution to the cost of any
leasehold improvements in the Premises. In any event, within thirty (30)
days after Landlord has completed its repairs to the Premises as
aforesaid, Tenant shall complete its repairs to the Premises and shall
recommence the conduct of business
thereon.
|
|
12.2
|
Uninsured
Damage and Last Two Years
|
If there
is damage to or destruction of the Premises and if, in Landlord’s reasonable
opinion, of which notice is given to Tenant within fifteen (15) days after the
later of the date of such damage or destruction and the date upon which Landlord
is notified by Tenant of such damage or destruction, the Premises are not
capable of being repaired to the extent of Landlord’s repair obligations within
thirty (30) days following the giving of such notice and if: (a) such damage or
destruction is not Insured Damage; or (b) such damage or destruction occurs
within the last two (2) Lease Years of the Term and either Tenant has no
remaining rights to renew this Lease or, having the right to renew this Lease
fails to do so within fifteen (15) days after receipt of the said notice, then
Landlord, at its option to be exercised by written notice given to Tenant within
thirty (30) days after the later of the date of such damage or destruction and
the date upon which Landlord is notified by Tenant of such damage or
destruction, may terminate this Lease whereupon Tenant shall immediately
surrender possession of the Premises and Basic Rent and all other payments for
which Xxxxxx is liable hereunder shall be apportioned to the effective date of
such termination. If this Lease is not terminated as aforesaid the parties shall
repair as provided in subsection 12.1(c) hereof and there shall be no abatement
of any Rent unless the damage or destruction is Insured Damage and then only to
the extent expressly provided in subsection 12.1(e) above.
|
12.3
|
Damage
to Project
|
If
twenty-five (25%) percent or more of the Rentable Area of Leasable Areas of the
Project is damaged or destroyed by any cause whatsoever, whether or not there is
any damage to the Premises, Landlord may, at its option, by notice given to
Tenant within sixty (60) days after such occurrence, terminate this Lease as of
a date specified in such notice, which date shall be not less than thirty (30)
days and not more than one hundred eighty (180) days after the giving
of such notice. In the event of such termination Tenant shall surrender vacant
possession of the Premises by not later than the said date of termination, and
Basic Rent and all other payments for which Tenant is liable hereunder shall be
apportioned to the effective date of termination. If Landlord does not so elect
to terminate this Lease, Landlord shall diligently proceed to repair and rebuild
the Project to the extent of its obligations pursuant hereto to the extent of
insurance proceeds which Landlord receives or would have received had it
maintained such insurance as required hereunder, and to the extent that any
mortgagee entitled to be paid such insurance proceeds consents to the use of
same for such purpose.
|
12.4
|
Restoration
of Premises or Project
|
If there
is damage to or destruction of the Premises or the Project and if this Lease is
not terminated pursuant hereto, Landlord, in performing its repairs as required
hereby, shall not be obliged to repair or rebuild in accordance with the plans
or specifications for the Premises or the Project as they existed prior to such
damage or destruction; rather, Landlord may repair or rebuild in accordance with
any plans and specifications chosen by Landlord in its sole discretion provided
that Tenant’s use of and access to the Premises and the general overall quality
of the Project are not materially detrimentally affected by any difference in
plans or specifications of the Premises or the Project.
|
12.5
|
Determination
of Matters
|
For the
purposes of this Article 12 all matters requiring determination such as, without
limitation, the extent to which any area(s) of the Premises or the Project are
damaged or are not capable of being used, or the time within which repairs may
be made, unless expressly provided to the contrary, shall be determined by
Xxxxxxxx’s Architect, such determination to be final and binding on the
parties.
- 18
-
|
13.
|
INSURANCE AND
INDEMNITY
|
|
13.1
|
Landlord’s
Insurance
|
Landlord
shall obtain and maintain in full force and effect during the Term with respect
to the Project insurance against such occurrences and in such amounts, on such
terms and with such deductible(s) as would a prudent owner of such a project.
Such insurance may include, without limitation: (a) insurance on the Building
and any improvements therein which Landlord desires to insure, against damage by
fire and other risks covered by extended coverage fire insurance policies or, at
Landlord’s option, all risks insurance; (b) boiler and machinery insurance; (c)
rental income insurance; (d) public liability insurance; and (e) such other
insurance and in such amounts and on such terms as Landlord, in its discretion,
may reasonably determine. Notwithstanding that Tenant shall be contributing to
the costs of such insurance pursuant to the terms of this Lease, Tenant shall
not have any interest in or any right to recover any proceeds under any of
Landlord’s insurance policies.
|
13.2
|
Tenant’s
Effect On Other Insurance
|
|
|
(a)
|
Tenant
shall not do or permit anywhere on the Premises or Project anything which
might: (i) result in any increase in the cost of any insurance policy of
Landlord on the Project; (ii) result in an actual or threatened
cancellation of or adverse change in any insurance policy of Landlord on
the Project; or (iii) be prohibited by any insurance policy of Landlord on
the Project.
|
|
|
(b)
|
If
the cost of any insurance policies of Landlord on the Project is increased
as a result of any improvements made by Tenant or anything done or
permitted by Tenant anywhere on the Premises or Project, Tenant shall pay
the full amount of such increase to Landlord forthwith upon demand.
Tenant’s responsibility for any increased cost of insurance as aforesaid
shall be conclusively determined by a statement issued by the
organization, company or insurer establishing the insurance rates for the
relevant policy.
|
|
|
(c)
|
If
there is an actual or threatened cancellation of or adverse change in any
policy of insurance of Landlord on the Project by reason of anything done
or permitted by Tenant anywhere on the Premises or Project, and if Tenant
fails to remedy the situation giving rise to such actual or threatened
cancellation or change within twenty-four (24) hours after notice from
Landlord, then Landlord may, at its option, either: (i) terminate this
Lease forthwith by written notice; or, (ii) remedy the situation giving
rise to such actual or threatened cancellation or change, all at the cost
of Tenant to be paid to Landlord forthwith upon demand, and for such
purpose Landlord shall have the right to enter upon the Premises without
further notice.
|
|
13.3
|
Tenant’s
Insurance
|
|
|
(a)
|
Tenant
shall, at its sole expense, maintain in full force and effect at all times
throughout the Term and such other times, if any, as Tenant occupies the
Premises or any portion thereof, such insurance as would be maintained by
a prudent tenant of premises such as the Premises, which insurance shall
include at least all of the
following:
|
|
|
(i)
|
commercial
general liability insurance on an occurrence basis with respect to any use
and occupancy of or things on the Premises, and with respect to the use
and occupancy of any other part of the Project by Tenant or any of its
employees, servants, agents, invitees, licensees, subtenants, contractors
or persons for whom Tenant is in law responsible, with coverage for any
occurrence of not less than Five Million ($5,000,000.00) Dollars or such
higher amount as Landlord may reasonably require on not less than one (1)
month’s notice;
|
|
|
(ii)
|
all
risks insurance covering the leasehold improvements, trade fixtures and
contents on the Premises, for not less than the full replacement cost
thereof and with a replacement cost
endorsement;
|
|
|
(iii)
|
if
applicable, broad form comprehensive boiler and machinery insurance on all
insurable objects located on or about the Premises or which are the
property or responsibility of Tenant, for not less than the full
replacement cost thereof and with a replacement cost
endorsement;
|
|
|
(iv)
|
business
interruption insurance and/or extra expense insurance in such amounts as
necessary to fully compensate Tenant for direct or indirect loss of sales
or earnings or extra expenses incurred resulting from or attributable to
any of the perils required to be insured against under the
policies referred to in subsections 13.3(a)(ii) and (iii) and all
circumstances usually insured against by cautious tenants including losses
resulting from interference with or prevention of access to the Premises
or the Project as a result of such perils or for any other
reason;
|
- 19
-
|
|
(v)
|
tenant’s
legal liability insurance for the full replacement cost of the Premises,
and the loss of use thereof; and
|
|
|
(vi)
|
any
other insurance against such risks and in such amounts as Landlord or any
mortgagee of Landlord may from time to time reasonably require upon not
less than thirty (30) days’ notice to
Tenant.
|
|
|
(b)
|
Each
of Tenant’s insurance policies shall name Landlord and Xxxxxxxx’s
Mortgagee as an additional insured with Landlord as loss payee, and shall
be taken out with insurers and shall be in such form and on such terms as
are satisfactory to Landlord from time to time. Without limiting the
generality of the foregoing, each of Tenant’s insurance policies shall
contain:
|
|
|
(i)
|
the
standard mortgage clause as may be required by any mortgagee of
Landlord;
|
|
|
(ii)
|
a
waiver by the insurer of any rights of subrogation to which such insurer
might otherwise be entitled against Landlord or any person for whom
Xxxxxxxx is in law responsible;
|
|
|
(iii)
|
an
undertaking by the insurer that no material change adverse to Tenant or
Landlord or any mortgagee of Landlord will be made and the policy will not
lapse or be terminated, except after not less than thirty (30) days’
written notice to Xxxxxx and Landlord and to any mortgagee of
Landlord;
|
|
|
(iv)
|
a
provision stating that Tenant’s insurance policy shall be primary and
shall not call into contribution any other insurance available to
Landlord;
|
|
|
(v)
|
a
disputed loss endorsement, where
applicable;
|
|
|
(vi)
|
a
severability of interests clause and a cross-liability clause;
and
|
|
|
(vii)
|
a
waiver, in respect of the interests of Landlord and any mortgagee of
Landlord, of any provision with respect to any breach of any warranties,
representations, declarations or conditions contained in the said
policy.
|
|
|
(c)
|
Tenant
shall ensure that Landlord shall at all times be in possession of either
certificates or certified copies of Tenant’s insurance policies which are
in good standing and in compliance with Tenant’s obligations
hereunder.
|
|
|
(d)
|
Tenant
hereby releases Landlord and its servants, agents, employees, contractors
and those for whom Landlord is in law responsible from all losses, damages
and claims of any kind in respect of which Xxxxxx is required to maintain
insurance hereunder or is otherwise
insured.
|
|
13.4
|
Landlord’s
Right to Place Tenant’s Insurance
|
If Tenant
fails to maintain in force, or pay any premiums for, any insurance required to
be maintained by Tenant hereunder, or if Tenant fails from time to time to
deliver to Landlord satisfactory proof of the good standing of any such
insurance or the payment of premiums therefor, then Landlord, without prejudice
to any of its other rights and remedies hereunder, shall have the right but not
the obligation to effect such insurance on behalf of Tenant and the cost thereof
and all other reasonable expenses incurred by Landlord in that regard shall be
paid by Tenant to Landlord forthwith upon demand.
|
13.5
|
Landlord’s
Non-Liability
|
Tenant
agrees that Landlord shall not be liable or responsible in any way for any
injury or death to any person or for any loss or damage to any property, at any
time on or about the Premises or any property owned by or being the
responsibility of Tenant or any of its servants, agents, customers, contractors
or persons for whom Tenant is in law responsible elsewhere on or about the
Project, no matter how the same shall be caused and whether or not resulting
from the negligence of Landlord, its servants, agents, employees, contractors or
persons for whom Landlord is in law responsible. Without limiting the generality
of the foregoing, Landlord shall not be liable or responsible for any such
injury, death, loss or damage to any persons or property caused or contributed
to by any of the following: fire, explosion, steam, water, rain, snow, dampness,
leakage, electricity or gas. Without limiting or affecting the generality or
interpretation of the foregoing, and notwithstanding the foregoing, it is agreed
that Landlord shall in no event be liable for any indirect or consequential
damages suffered by Tenant.
- 20
-
|
13.6
|
Indemnity
of Landlord
|
Tenant
shall indemnify Landlord and all of its servants, agents, employees, contractors
and persons for whom Landlord is in law responsible against any and all
liabilities, claims, damages, losses and expenses, including all reasonable
legal fees and disbursements, arising from: (a) any breach by Tenant of any of
the provisions of this Lease; (b) any act or omission of any person on the
Premises or any use or occupancy of or any things in the Premises; (c) any act
or omission of Tenant or any of its servants, agents, employees, invitees,
licensees, sub-tenants, concessionaires, contractors or persons for whom Tenant
is in law responsible on the Premises or elsewhere on or about the Project; or
(d) any injury or death of persons, or any loss or damage to property of Tenant
or any of its servants, agents, employees, invitees, licensees, subtenants,
contractors or persons for whom Tenant is in law responsible, on the Premises or
elsewhere on or about the Project.
13.7 Landlord’s
Employees and Agents
Every
indemnity, exclusion, release of liability and waiver of subrogation contained
in this Lease for the benefit of Landlord shall extend to and benefit all of
Landlord’s servants, agents, employees, and others for whom Landlord is in law
responsible. Solely for such purpose, and to the extent that Landlord expressly
chooses to enforce the benefits of this section for the foregoing persons, it is
agreed that Landlord is the agent or trustee for such persons.
14.
ASSIGNMENT, SUBLETTING AND
CHANGE OF CONTROL
|
14.1
|
Consent
Required
|
|
|
(a)
|
Tenant
shall not assign this Lease in whole or in part and shall not sublet or
part with or share possession of all or any part of the Premises and shall
not grant any licences or other rights to others to use any portion of the
Premises (all of the foregoing being hereinafter referred to as a
“Transfer”; a party making a Transfer is referred to as a “Transferor” and
a party taking a Transfer is referred to as a “Transferee”) without the
prior written consent of Landlord in each instance, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing, Landlord
shall be entitled to arbitrarily or unreasonably withhold its consent to
any Transfer in respect of which Landlord exercises its right to terminate
this Lease, or to take a Transfer of the Premises or any portion thereof,
pursuant to Section 14.3. The provisions of this Article 14 shall apply to
any Transfer which might occur by inheritance or operation of
law.
|
|
|
(b)
|
Notwithstanding
and without in any way affecting or limiting the interpretation of the
foregoing, it is agreed that it shall be reasonable for Landlord to
withhold its consent to a Transfer unless it is shown to Landlord’s
satisfaction that: (i) the proposed Transferee has a good business and
personal reputation; (ii) the proposed Transferee or its principal
shareholders has not been bankrupt or the holder of twenty (20%) percent or more
of the issued shares of any class of shares of a corporation or of an
interest in a partnership, either of which has been bankrupt in the ten
(10) years preceding the date of the proposed Transfer; (iii) the proposed
Transferee has good financial strength at least equal to that of Tenant at
the date of this Lease, and at least sufficient to satisfy all of the
obligations of Tenant hereunder; (iv) the proposed Transferee is not an
existing occupant of any part of the Project; (v) the proposed Transferee
has not then recently been a prospect involved in bona fide negotiations
with Landlord respecting the leasing of any premises in the Project and is
not in any way affiliated with such bona fide prospect; (vi) the Transfer
would not result in a breach of any agreement by which Landlord is bound
with respect to any part of the Project; and (vii) without affecting the
interpretation of Section 8.1 or any other provision hereof, the business
proposed to be carried on by the Transferee on the Premises will not be
incompatible with the uses of other tenants of the Project, and will not
be more burdensome on the Project, in terms of parking requirements or any
other factor, than the business previously carried on by Tenant on the
Premises.
|
- 21
-
|
|
(c)
|
If
Landlord withholds, delays or refuses to give consent to any Transfer,
whether or not Landlord is entitled to do so, Landlord shall not be liable
for any losses or damages in any way resulting therefrom and Tenant shall
not be entitled to terminate this Lease or exercise any other remedy
whatever in respect thereof except to seek the order of a court of
competent jurisdiction compelling Landlord to grant any such consent which
Landlord is obliged to grant pursuant to the terms of this
Lease.
|
|
|
(d)
|
No
Transfer may be made where any portion of Rent is lower than that provided
for herein or otherwise on terms more favourable to the Transferee than
the terms set forth herein.
|
|
14.2
|
Obtaining
Consent
|
All
requests to Landlord for consent to any Transfer shall be made to Landlord in
writing together with a copy of the agreement pursuant to which the proposed
Transfer will be made, accompanied by such information in writing as a landlord
might reasonably require respecting a proposed Transferee including, without
limitation, name, business and home addresses and telephone numbers, business
experience, credit information and rating, financial position and banking and
personal references, description of business proposed to be conducted by the
Transferee on the Premises and parking requirements for such business. Tenant
shall promptly pay all costs incurred by Landlord in considering and processing
the request for consent including legal costs and all costs of completing any
documentation to implement any Transfer, which shall be prepared by Landlord or
its solicitor if required by Landlord, and as a prior condition to considering
any request for consent Landlord may require from Tenant payment of a reasonable
deposit, of at least Six Hundred ($600.00) Dollars, on account of Landlord’s
said costs.
|
14.3
|
Landlord’s
Option
|
Notwithstanding
the other provisions contained in this Article 14, after Xxxxxxxx receives a
request for consent to a Transfer with the information and copy of agreement
hereinabove required, it shall have the option, to be exercised by written
notice to Tenant within fifteen (15) days after the receipt of such request,
information, deposit and agreement to: (a) to terminate this Lease as it relates
to the portion of the Premises which is the subject of the proposed Transfer
(“Transferred Premises”) effective as of the date on which the proposed Transfer
was to have occurred; or (b) take a Transfer from Tenant of the Transferred
Premises on the same terms as the Transfer in respect of which Xxxxxx has
requested Xxxxxxxx’s consent, as aforesaid. If Landlord gives Tenant notice
either electing to terminate this Lease or to take a Transfer of the Transferred
Premises, as aforesaid, Tenant shall have the right, to be exercised by written
notice to Landlord within ten (10) days after receipt of such Xxxxxxxx’s notice,
to withdraw the request for consent to the Transfer, in which case Tenant shall
not proceed with such Transfer, the Landlord’s notice shall be null and void and
this Lease shall continue in full force and effect. If, pursuant to this Section
14.3, Landlord terminates this Lease as it relates to a portion of the Premises
or takes a Transfer of a portion of the Premises, Tenant hereby grants to
Landlord and any others entitled to use the same, to use for their intended
purposes all portions of the Premises in the nature of common areas (such as
corridors, washrooms, lobbies and the like), or which are reasonably required
for proper access to or use of the Transferred Premises (such as reception
areas, interior corridors, mechanical or electrical systems and ducts and the
like).
|
14.4
|
Terms
of Transfer
|
In the
event of a Transfer, Landlord shall have the following rights, in default of any
of which no such Transfer shall occur or be effective:
|
|
(a)
|
to
collect a deposit or further deposit to be held as a security deposit
pursuant to Section 16.6 such that the security deposit held by Landlord
shall be equivalent to at least the Basic Rent payable for the last two
(2) months of the Term in respect of the premises which are the subject of
the Transfer;
|
|
|
(b)
|
to
require Tenant and the Transferee to enter into a written agreement to
implement any amendments to this Lease to give effect to Landlord’s
exercise of any of its rights
hereunder;
|
|
|
(c)
|
to
require the Transferee to enter into an agreement with Landlord in writing
and under seal to be bound by all of Tenant’s obligations under this Lease
in respect of the Transferred Premises, and to waive any right it, or any
person on its behalf, may have to disclaim, repudiate or terminate this
Lease pursuant to any bankruptcy, insolvency, winding-up or other
creditors’ proceeding, including, without limitation, the Bankruptcy and Insolvency Act
(Canada) or the Companies’ Creditors
Arrangement Act (Canada), and to agree that in the event of any
such proceeding Landlord will comprise a separate class for voting
purposes;
|
- 22
-
|
|
(d)
|
to
receive all amounts to be paid to Tenant under the agreement in respect of
such Transfer less only any consideration which is bona fide being paid to
Tenant for equipment, furnishings and other property to be conveyed by
Xxxxxx as part of or together with the transaction of Transfer and which
is not reasonably attributable to Xxxxxx’s interest in this Lease and
less, in the case of a sublease, all amounts receivable by Tenant under
the sublease equal to the amounts payable by Tenant hereunder each month
during the term of the sublease in respect of the Transferred
Premises;
|
|
|
(e)
|
to
require the Transferee to waive any right it, or any person on its behalf,
may have to disclaim, repudiate or terminate this Lease pursuant to any
bankruptcy, insolvency, winding-up or other creditors’ proceedings, and to
waive any rights, pursuant to Sections 21 or 39(2) of the Commercial Tenancies Act
(Ontario) R.S.O. 1990, c, L7 and any amendments thereto and any
other statutory provisions of the same or similar effect, to pay Rent less
than any amount payable hereunder;
|
|
|
(f)
|
to
require, if the Transfer is a sublease or other transaction other than an
assignment, that upon notice from Landlord to the Transferee all amounts
payable by the Transferee each month shall be paid directly to Landlord
who shall apply the same on account of Tenant’s obligations under this
Lease;
|
|
|
(g)
|
to
require that this Lease be amended to delete therefrom any right of
renewal and any option or right of first refusal to purchase the
Premises.
|
|
14.5
|
Effect
of Transfer
|
|
|
(a)
|
No
consent of Landlord to a Transfer shall be effective unless given in
writing and executed by Landlord and no such consent shall be presumed by
any act or omission of Landlord or by Xxxxxxxx’s failure to respond to any
request for consent or by Xxxxxxxx’s accepting any payment of any amount
payable hereunder from any party other than Xxxxxx. No Transfer and no
consent by Landlord to any Transfer shall constitute a waiver of the
necessity to obtain Landlord’s consent to any subsequent or other
Transfer.
|
|
|
(b)
|
In
the event of any Transfer or any consent by Landlord to any Transfer,
Tenant shall not thereby be released from any of its obligations hereunder
but shall remain bound by all such obligations pursuant to this Lease for
the balance of the Term. If this Lease is renewed or extended by any
Transferee or if any Transferee exercises a right to lease additional
premises, pursuant to any right of Tenant contained in this Lease, each
Transferor shall be liable for all of the obligations of Tenant throughout
the Term as renewed or extended.
|
|
|
(c)
|
Every
Transferee shall be obliged to comply with all of the obligations of
Tenant under this Lease, and any default of any Transferee shall also
constitute a default of Tenant hereunder. If this Lease is ever
disclaimed, repudiated or terminated by or on behalf of a Transferee
pursuant to any bankruptcy, insolvency, winding-up or other creditors’
proceeding, including, without limitation, any proceeding under the Bankruptcy and Insolvency Act
(Canada) or the Companies’ Creditors
Arrangement Act (Canada), or if this Lease is ever terminated by
Landlord as a result of any act or default of any Transferee, Tenant shall
nevertheless remain responsible for fulfilment of all obligations of
Tenant hereunder for what would have been the balance of the Term but for
such disclaimer, repudiation or termination, and shall upon Landlord’s
request enter into a new lease of the Premises for such balance of the
Term and otherwise on the same terms and conditions as in this
Lease.
|
14.6 No
Advertising of Premises
Tenant
shall not advertise this Lease or all or any part of the Premises or the
business or fixtures or contents therein for sale without Landlord’s prior
written consent.
- 23
-
|
14.7
|
Mortgage
of Lease
|
The
restrictions on Transfer as aforesaid shall apply to any assigning, subletting,
mortgaging, charging or otherwise transferring of the Premises or this Lease for
the purpose of securing any obligation of Tenant.
|
14.8
|
Corporate
Tenant
|
|
|
(a)
|
If
Tenant or any occupant of the Premises at any time is a corporation, no:
(I) transfer of the issued shares in the capital stock or transfer,
issuance or division of any shares of the corporation or of any affiliate
of the corporation sufficient to transfer control to others than the then
present shareholders of the corporation (collectively called “Sale”); or
(II) merger, amalgamation, consolidation or other corporate restructuring
or reorganization (collectively called “Reorganization”) shall take place,
without first obtaining the prior written consent of Landlord, not to be
unreasonably withheld. Upon request, Tenant shall make the corporate books
and records of Tenant and of any affiliate of Tenant available to Landlord
and its representatives for inspection in order to ascertain whether or
not there has been any Sale or Reorganization. Tenant acknowledges that,
in addition to Landlord’s rights under this Lease and at Law to withhold
consent to any Transfer, Landlord may withhold consent to any Sale or
Reorganization unless it is shown to Landlord’s reasonable satisfaction
that the financial strength of Tenant will not be adversely affected by
such Sale or Reorganization.
|
|
|
(b)
|
This
Section shall not apply to a Sale by Tenant if and as long as Tenant is in
occupancy of the Premises and is a corporation whose shares are listed and
traded on any recognized public stock exchange in Canada or the United
States.
|
|
14.9
|
Assignment
by Landlord
|
If
Landlord sells, leases, mortgages or otherwise disposes of the Project or any
part thereof or assigns its interest in this Lease, to the extent that the
purchaser or assignee agrees with Landlord to assume the covenants and
obligations of Landlord hereunder, Landlord shall thereupon be released from all
liability pursuant to the terms of this Lease.
|
15.
|
STATUS AND
SUBORDINATION OF LEASE
|
|
15.1
|
Status
Statement
|
Tenant
shall, within ten (10) days after written request from Landlord, execute and
deliver to Landlord, or to any actual or proposed lender, purchaser or assignee
of Landlord, a statement or certificate in such form as requested by Landlord
stating (if such is the case, or stating the manner in which such may not be the
case): (a) that this Lease is unmodified and in full force and effect; (b) the
date of commencement and expiry of the Term and the dates to which Basic Rent
and any other Rent, including any prepaid rent, have been paid; (c) whether or
not there is any existing default by Landlord under this Lease and, if so,
specifying such default; and (d) that there are no defences, counter claims or
rights of set-off in respect of the obligations hereunder of Tenant and (e) full
details of the financial and credit standing and details of the corporate
organization of Tenant, including audited financial statements for such period
of time as Landlord may require, it being intended that any such statement
delivered pursuant hereto may be relied upon by an actual or prospective lender,
purchaser and assignee of any interest of Landlord under this Lease or in the
Premises.
|
15.2
|
Subordination
|
At the
option of Landlord to be expressed in writing from time to time, this Lease and
the rights of Tenant hereunder are and shall be subject and subordinate to any
and all mortgages, trust deeds and charges (any of which is herein called
“Mortgage”) on the Project or any part thereof now or in the future, including
all renewals, extensions, modifications and replacements of any Mortgages from
time to time. Tenant shall at any time on notice from Landlord or holder of a
Mortgage attorn to and become a tenant of the holder of any such Mortgage upon
the same terms and conditions as set forth herein and shall execute promptly on
request any certificates, agreements, instruments of postponement or attornment
or other such instruments or agreements, including without limitation any short
form or notice of this Lease for the purpose of registration on title to the
Project, as requested from time to time to give full effect to this Article 15.
Provided Tenant is not in default hereunder, Landlord shall use reasonable
efforts to obtain from the holder of any Mortgage, in respect of which tenant
has executed and delivered an instrument of postponement, subordination or
attornment as required hereby, its agreement to permit Tenant to continue to
occupy the Premises in accordance with the terms of this Lease.
- 24
-
|
15.3
|
Tenant’s
Failure to Comply
|
If Tenant
fails to execute any certificate, agreement, instrument, or other document as
required by the foregoing provisions of this Article 15 within ten (10) days
after request by Landlord, then Landlord shall have the right, without limiting
any other rights of Landlord hereunder or at law, to terminate this Lease or to
execute any such certificate, agreement, instrument or document on behalf of
Tenant and in Tenant’s
name, for which purpose
Tenant hereby appoints Landlord as Tenant’s attorney pursuant to the Substitute Decisions Act
(Ontario).
|
15.4
|
Registration
|
Tenant
shall not register on title to the Project this Lease or any short form or
notice hereof except in such form as has been approved by Landlord, acting
reasonably, in writing, provided that Tenant shall pay Landlord’s reasonable
expenses, including legal fees, of such approval. Tenant shall forthwith provide
to Landlord a duplicate registered copy of any short form or notice of this
Lease or other document registered on title.
|
16.
|
DEFAULT AND
REMEDIES
|
16.1 Default
and Remedies
If any of
the following shall occur:
|
|
(a)
|
Tenant
fails, for any reason, to make any payment of Rent as and when the same is
due to be paid hereunder and such default continues for five (5) days
after notice is given to Tenant;
|
|
|
(b)
|
Tenant
fails, for any reason, to observe or perform any obligation of Tenant
pursuant to this Lease other than the payment of any Rent, and such
default continues for fifteen (15) days, or such shorter period as
expressly provided herein, after notice thereof to Tenant, provided that
if the default could not, in the reasonable opinion of Landlord, be
remedied within fifteen (15) days after notice and provided Tenant has
commenced to remedy such failure not later than five (5) days after notice
and proceeds thereafter to diligently and continuously remedy it, the
number of days shall be extended to that number of days which would in the
opinion of Landlord, acting reasonably, then suffice for the remedying of
such default;
|
|
|
(c)
|
Tenant
shall purport to make a Transfer affecting the Premises, or the Premises
shall be used by any person or for any purpose, other than in compliance
with this Lease;
|
|
|
(d)
|
Tenant
or any other occupant of the Premises makes an assignment for the benefit
of creditors or becomes bankrupt or insolvent or takes the benefit of any
statute for bankrupt or insolvent debtors or makes any proposal or
arrangement with creditors, or Tenant makes any sale in bulk of any
property on the Premises (other than in conjunction with a Transfer
approved in writing by Landlord and made pursuant to all applicable
legislation), or steps are taken for the winding up or other termination
of Tenant’s existence or liquidation of its
assets;
|
|
|
(e)
|
a
trustee, receiver, receiver-manager, or similar person is appointed in
respect of the assets or business of Tenant or any other occupant of the
Premises;
|
|
|
(f)
|
Tenant
attempts to or does abandon the Premises or remove or dispose of any goods
from the Premises, so that there would not be sufficient goods on the
Premises subject to distress to satisfy all arrears of Rent and all Rent
payable hereunder for a further period of at least six (6) months, or if
the Premises are vacant or unoccupied for a period of five (5) consecutive
days or more without the prior written consent of
Landlord;
|
|
|
(g)
|
this
Lease or any other property of Tenant is at any time seized or taken in
execution which remains unsatisfied for a period of five (5) days or
more;
|
|
|
(h)
|
termination
or re-entry by Landlord is permitted under any provision of this Lease or
at law;
|
- 25
-
then the
then current and the next three (3) months’ Rent shall be forthwith due and
payable and, in addition to any other rights or remedies to which Xxxxxxxx is
entitled hereunder or at law, Landlord shall have the following rights and
remedies, which are cumulative and not alternative, namely:
|
|
(i)
|
to
terminate this Lease in respect of the whole or any part of the Premises
by written notice to Xxxxxx;
|
|
|
(ii)
|
as
agent of Tenant to relet the Premises and take possession of any
furniture, fixtures, equipment or other property thereon and, upon giving
notice to Tenant, to store the same at the expense and risk of Tenant or
sell or otherwise dispose of the same at public or private sale without
further notice, and to make alterations to the Premises to facilitate
their reletting and to apply the net proceeds of the sale of any
furniture, fixtures, equipment, or other property or from the
reletting of the Premises, less all expenses incurred by Landlord in
making the Premises ready for reletting and in reletting the Premises, on
account of the Rent due and to become due under this Lease and Tenant
shall be liable to Landlord for any deficiency and for all such expenses
incurred by Landlord as aforesaid; nothing done by Landlord shall be
construed as an election to terminate this Lease unless written notice of
such termination is given by Landlord to
Tenant;
|
|
|
(iii)
|
to
remedy any default of Tenant in performing any repairs, work or other
obligations of Tenant hereunder, and in so doing to enter upon the
Premises, without any liability to Tenant therefor and without
constituting a re-entry of the Premises or termination of this Lease or
breach of Landlord’s covenant of quiet enjoyment, and, in such case,
Tenant shall pay to Landlord forthwith upon demand all reasonable costs of
Landlord in remedying or attempting to remedy any such default plus
fifteen (15%) percent of such amounts and charges for inspection and
supervision; and
|
|
|
(iv)
|
to
obtain damages from Tenant including, without limitation, if this Lease is
terminated, all deficiencies between all amounts which would have been
payable by Tenant for what would have been the balance of the Term, but
for such termination, and all net amounts actually received by Landlord
for such period.
|
|
16.2
|
Interest
and Costs
|
|
|
(a)
|
All
amounts of Rent shall bear interest from their respective due dates until
the dates of payment at the rate of five (5%) percent per annum in excess
of the prime rate of interest charged by Xxxxxxxx’s bank in Ontario from
time to time.
|
|
|
(b)
|
Further,
on each occurrence of default in the payment of Rent, Tenant shall pay to
Landlord on demand in addition to the aforesaid interest an administration
fee equal to the greater of: (i) Two Hundred ($200.00) Dollars; and (ii)
two (2%) percent of the amount of Rent in
default.
|
|
|
(c)
|
Tenant
shall pay to Landlord forthwith upon demand all costs incurred by
Landlord, including, without limitation, legal expenses on a substantial
indemnity basis and reasonable compensation for all time expended by
Landlord’s own personnel, arising as a result of any default in Tenant’s
obligations under this Lease.
|
|
16.3
|
Bankruptcy
and Insolvency
|
Tenant
hereby waives any right it, or any person on its behalf, may have to disclaim,
repudiate or terminate this Lease pursuant to any bankruptcy, insolvency,
winding-up or other creditors’ proceeding, including, without limitation, the
Bankruptcy and Insolvency Act
(Canada) or the Companies’ Creditors Arrangement Act
(Canada), and agrees that in the event of any such proceeding Landlord
will comprise a separate class for voting purposes.
|
16.4
|
Distress
and Xxxxxx’s Property
|
Tenant
hereby waives and renounces the benefit of any present or future statute taking
away or limiting Landlord’s right of distress and agrees with Landlord that,
notwithstanding any such statute, all goods and chattels from time to time on
the Premises shall be subject to distress for Rent. All Tenant’s
personal property on the Premises shall at all times be the
unencumbered property of Tenant.
- 26
-
|
16.5
|
Intentionally
Deleted
|
|
16.6
|
Rent
Deposit
|
In order
to induce Xxxxxxxx to enter into this Lease, Xxxxxx agrees to execute the Rent
Deposit Agreement attached hereto as Schedule “17”.
|
16.7
|
Remedies
to Subsist
|
No waiver
of any of Tenant’s obligations under this Lease or of any of Landlord’s rights
in respect of any default by Tenant hereunder shall be deemed to have occurred
as a result of any condoning, overlooking or delay by Landlord in respect of any
default by Tenant or by any other act or omission of Landlord including, without
limitation, the acceptance of any Rent less than the full amount thereof or the
acceptance of any Rent after the occurrence of any default by Tenant. The waiver
by Landlord of any default of Tenant or of any rights of Landlord, which shall
be effected only by an express written waiver executed by Landlord, shall not be
deemed to be a waiver of any term, covenant or condition in respect of which
such default or right has been waived and shall not be deemed to be a waiver of
any subsequent default of Tenant or right of Landlord. All rights and remedies
of Landlord under this Lease and at law shall be cumulative and not alternative,
and the exercise by Landlord of any of its rights pursuant to this Lease or at
law shall at all times be without prejudice to any other rights of Landlord,
whether or not they are expressly reserved. The Tenant’s obligations under this
Lease shall survive the expiry or earlier termination of this Lease and shall
remain in full force and effect until fully complied with.
|
16.8
|
Impossibility
of Performance
|
If and to
the extent that either Landlord or Tenant shall be delayed in the fulfillment of
any obligation under this Lease, other than the payment by Tenant of any Rent,
by reason of unavailability of material, equipment, utilities, services or by
reason of any Laws, or by reason of any other similar cause beyond its control
and not avoidable by the exercise of reasonable foresight (excluding the
inability to pay for the performance of such obligation), then the party being
delayed shall be entitled to extend the time for fulfillment of such obligation
by a time equal to the duration of such delay and the other party shall not be
entitled to any compensation for any loss or inconvenience occasioned thereby.
The party delayed will, however, use its best efforts to fulfill the obligation
in question as soon as is reasonably practicable by arranging an alternate
method of providing the work, services or materials.
|
17.
|
CONTROL OF
PROJECT
|
17.1
Landlord’s Control
The
Project is at all times subject to the exclusive control and management of
Landlord. Without limiting the generality of the foregoing, Landlord shall have
the right to obstruct or close off or restrict entry to all or any part of the
Project for purposes of performing any maintenance, repairs or replacements or
for security purposes or to prevent the accrual of any rights to any person or
the public or any dedication thereof, provided that in exercising any such right
Landlord shall use reasonable efforts to minimize interference with Xxxxxx’s
access to and use of the Premises. The Project shall be open for access to the
Premises during Business Hours, and at any other time access to premises in the
Building shall be subject to compliance with all applicable rules and
regulations of Landlord, including without limitation those related to
security.
|
17.2
|
Alterations
of the Project
|
|
|
(a)
|
At
any time or times Landlord shall have the right to make any changes in,
additions to, deletions from or relocations of any part of the Project
including the Premises and any of the Common Facilities (any of
which are herein referred to as “Changes”) as Landlord shall consider
desirable, including the construction of additional floors in the
Building. If Landlord makes any Changes to the Premises, including
relocation of the Premises, 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. If the Premises are relocated as a
result of such Changes, Landlord shall be responsible for the direct cost
of moving Tenant to the relocated Premises and constructing
replacement leasehold improvements therein, but not for any
indirect costs or losses of Tenant. Tenant shall not have the right to
object to or make any claim on account of the exercise by Landlord of any
of its rights under this Section 17.2, except that Tenant shall be
entitled to an abatement of Basic Rent for any period of time in excess of
ten (10) consecutive days that Xxxxxx is unable to conduct business in the
Premises as a result of the making of such Changes. Landlord shall make
any such Changes as expeditiously as is reasonably possible and so as to
interfere as little as is reasonably possible with Xxxxxx’s business on
the Premises.
|
- 27
-
|
|
(b)
|
Tenant
acknowledges that portions of the Project may be under construction during
the Term, and that such construction activities may cause temporary noise
and disturbance to existing tenants of the Project. Landlord will use
reasonable efforts to minimize interference with Xxxxxx’s occupation of
the Premises as a result of such construction activities, but Tenant
acknowledges that in no event shall any noise or other disturbance caused
by such construction constitute a breach of Tenant’s right to quiet
enjoyment of the Premises.
|
|
17.3
|
Use
of Common Facilities
|
Tenant
shall not itself and shall not permit any of its employees, servants, agents,
contractors or persons having business with Tenant, to obstruct any Common
Facilities including driveways, laneways or access routes, or to park vehicles
in any portion of the Common Facilities other than such areas as expressly
authorized by Landlord, and Landlord shall have the right, at Tenant’s expense
payable on demand, to remove any such obstruction or improperly parked vehicles,
without liability for any damage caused thereby.
|
17.4
|
Rules
and Regulations
|
Landlord
may from time to time make and amend reasonable rules and regulations for the
management and operation of the Project and Tenant and all persons under its
control shall comply with all of such rules and regulations of which notice is
given to Tenant from time to time, all of which shall be deemed to be
incorporated into and form part of this Lease. Landlord shall not make any rules
or regulations which conflict with any express provision of this Lease unless
and only to the extent required by any applicable Laws. Landlord shall act
reasonably in enforcing such rules and regulations but shall not be liable for
their nonenforcement.
|
17.5
|
Access
to Premises
|
|
|
(a)
|
Without
limiting any other rights Landlord may have pursuant hereto or at law,
Landlord shall have the right to enter the Premises at any time for any of
the following purposes: (i) to examine the Premises and to perform any
maintenance, repairs or alterations to any part of the Premises or to any
equipment and services serving the Premises or any other part of the
Project; (ii) in cases of emergency; (iii) to read any utility or other
meters; (iv) during the last twelve (12) months of the Term to show the
Premises to prospective tenants and to permit prospective tenants to make
inspections, measurements and plans; and (v) at any time during the Term
to show the Premises to prospective purchasers or
lenders.
|
|
|
(b)
|
Landlord
shall have the right to run through the Premises conduits, wires, pipes,
ducts and other elements of any systems for utilities, heating,
ventilating, air conditioning and humidity control, telephone and other
communications systems and any other such systems to serve the Premises or
the Project.
|
|
|
(c)
|
Landlord
shall exercise its rights pursuant to this Section 17.5 in such manner and
at such times as Landlord, acting reasonably but in its sole discretion,
shall determine. At any time that entry by Xxxxxxxx is desired in case of
emergency, and if no personnel of Tenant are known by Landlord to be
present on the Premises or if such personnel fail for any reason to
provide Landlord immediate access at the time such entry is desired,
Landlord may forcibly enter the Premises without liability for damage
caused thereby.
|
17.6
Expropriation
|
|
(a)
|
If
the Premises or any part thereof shall be expropriated (which for the
purposes of this Article 17 shall include a sale by Landlord to any
authority with the power to expropriate) by any competent authority,
then:
|
|
(i)
|
Landlord
and Tenant shall co-operate with each other so that Tenant may receive
such award to which it is entitled in law for relocation costs, business
interruption, and the value of leasehold improvements paid for by Tenant
and the amortized portion, if any, of leasehold improvements paid for by
Tenant, and so that Landlord may receive the maximum award to which it may
be entitled in law for all other compensation arising from such
expropriation including, without limitation, all compensation for the
value of Tenant’s leasehold interest in the
Premises;
|
- 28
-
- -
|
(ii)
|
except
for such compensation to which Tenant shall be entitled as aforesaid, all
Tenant’s other rights in respect of such expropriation are hereby assigned
to Landlord, and within ten (10) days after request by Landlord Tenant
shall execute such further documents as requested by Xxxxxxxx to give
effect to such assignment, failing which Landlord is hereby irrevocably
appointed, pursuant to the Substitute Decisions Act
(Ontario), Xxxxxx’s attorney to do so on behalf of Tenant and in
its name; and
|
|
(iii)
|
Landlord
shall have the option, to be exercised by written notice to Tenant, to
terminate this Lease, effective on the date the expropriating authority
takes possession of the whole or any portion of the
Premises.
|
|
|
(b)
|
If
the whole or any part of the Project shall be expropriated, then subject
to the foregoing provisions respecting expropriation of the
Premises:
|
|
(i)
|
all
compensation resulting from such expropriation shall be the absolute
property of Landlord and all of Tenant’s rights, if any, to any such
compensation are hereby assigned to Landlord and within ten (10) days
after request by Landlord Tenant shall execute such further documents as
requested by Landlord to give effect to such assignment, failing which
Landlord is hereby irrevocably appointed, pursuant to the Substitute Decisions Act
(Ontario) Tenant’s attorney to do so on behalf of Tenant and in its
name; and
|
|
(ii)
|
if
the expropriation of part of the Project is such as to render undesirable,
in Landlord’s reasonable opinion, the continuing operation of the portion
of the Project in which the Premises are situate, Landlord shall have the
right to terminate this Lease as of the date the expropriating authority
takes possession of all or any portion of the
Project.
|
|
17.7
|
Landlord’s
Consent
|
If
Landlord withholds, delays or refuses to give consent as provided by the terms
of this Lease, whether or not Landlord is entitled to do so, Landlord shall not
be liable for any losses or damages in any way resulting therefrom and Tenant
shall not be entitled to terminate this Lease or exercise any remedy whatever in
respect thereof except to seek the order of a court of competent jurisdiction
compelling Landlord to grant any such consent which Landlord is obliged to grant
pursuant to the terms of this Lease.
|
18.
|
MISCELLANEOUS
|
18.1 Notices
All
notices, statements, demands, requests or other instruments (“Notices”) which
may be or are required to be given under this Lease shall be in writing and
shall be delivered in person or sent by prepaid registered Canadian mail
addressed, if to the Tenant, at the Address for Service of Notice on Tenant, and
if to the Landlord at the Address for Service of Notice on Landlord, all as
provided in subsection 1(i) hereof.
All such
Notices shall be conclusively deemed to have been given and received upon the
day the same is personally delivered or, if mailed as aforesaid, four (4)
business days (excluding Saturdays, Sundays, holidays and days upon
which regular postal service is interrupted or unavailable for any reason) after
the same is mailed as aforesaid. Any party may at any time by notice in writing
to the other change the Address for Service of Notice on it. If two or more
persons are named as Tenant, any Notice given hereunder shall be sufficiently
given if delivered or mailed in the foregoing manner to any one of such
persons.
|
18.2
|
Complete
Agreement
|
There are
no covenants, representations, agreements, warranties or conditions in any way
relating to the subject matter of this Lease or the tenancy created hereby,
expressed or implied, collateral or otherwise, except as expressly set forth
herein, and this Lease constitutes the entire agreement between the parties and
may not be modified except by subsequent written agreement duly executed by
Landlord and Xxxxxx.
- 29
-
|
18.3
|
Time
of the Essence
|
Time is
of the essence of all terms of this Lease.
|
18.4
|
Applicable
Law
|
This
Lease shall be governed by and interpreted in accordance with the laws of the
Province of Ontario. The parties agree that the Courts of Ontario shall have
jurisdiction to determine any matters arising hereunder.
|
18.5
|
Severability
|
If any
provision of this Lease is illegal, unenforceable or invalid, it shall be
considered separate and severable and all the remainder of this Lease shall
remain in full force and effect as though such provision had not been included
in this Lease but such provision shall nonetheless continue to be enforceable to
the extent permitted by law.
|
18.6
|
Section
Numbers and Headings
|
The table
of contents and all section numbers and headings of this Lease are inserted for
convenience only and shall in no way limit or affect the interpretation of this
Lease. References in this Lease to section numbers refer to the applicable
section of this Lease, unless a statute or other document is specifically
referred to.
|
18.7
|
Interpretation
|
Whenever
a word importing the singular or plural is used in this Lease, such word shall
include the plural and singular respectively. Where any party is comprised of
more than one entity, the obligations of each of such entities shall be joint
and several. Words importing persons of either gender or firms or corporations
shall include persons of the other gender and firms or corporations as
applicable. Subject to the express provisions contained in this Lease, words
such as “hereof”, “herein”, “hereby”, “hereafter”, and “hereunder” and all
similar words or expressions shall refer to this Lease as a whole and not to any
particular section or portion hereof.
|
18.8
|
Successors
|
This
Lease shall enure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors, assigns and other
legal representatives except only that this Lease shall not enure to the benefit
of any of such parties unless and only to the extent expressly permitted
pursuant to the provisions of this Lease.
|
18.9
|
Monetary
Amounts
|
Except as
may be otherwise expressly provided herein, all monetary amounts set out in this
Lease are in Canadian currency and are exclusive of Canadian Goods and Services
Tax and any other applicable Sales Taxes.
|
18.10
|
Demolition
or Substantial Alterations
|
If
Landlord wishes to demolish or substantially alter or renovate all or a
substantial portion of the Building containing the Premises, Landlord shall have
the right, to be exercised by not less than nine (9) months written notice to
Tenant, to terminate its Lease. Xxxxxx agrees that upon the termination date
specified in such notice, Tenant shall vacate the Premises and deliver up vacant
possession of the Premises in accordance with the terms of this Lease. Tenant
acknowledges that it shall have no claim against Landlord as a result of the
exercise by Landlord of its right hereunder and upon such termination, all Rent
shall be apportioned to the effective date of such termination and upon
compliance by each of the parties with their respective obligations under the
Lease up to and including the termination date, each of the parties shall
thereafter be released from all future obligations arising under this
Lease.
- 30
-
|
19.
|
PRIVACY
POLICY
|
Tenant
hereby consents to the collection, use and disclosure of personal information
collected by or on behalf of Landlord by Bentall Real Estate Services Limited
Partnership (`Bentall”) or any of Landlord’s or Xxxxxxx’s agents, affiliates, or
service providers for the purposes of: (i) considering this Lease and
determining the suitability of Tenant both for the initial Term and any renewals
or extensions thereafter, if applicable; (ii) taking action for collection of
Rents in the event of default by Tenant; (iii) facilitating the
preauthorization payment plan, if applicable; and (iv) otherwise complying
with Xxxxxxx’s Privacy Policy, a copy of which is available at xxx.Xxxxxxx.xxx. Consent under
this Lease includes the disclosure of such information to credit agencies,
collection agencies and existing or potential lenders, investors and purchasers.
Tenant also consents to, and confirms its authority to consent to Xxxxxxx’s
collection, use and disclosure, for such purposes, of personal information about
employees of Tenant and other individuals whose personal information is provided
to or collected by Xxxxxxx in connection with this Lease.
IN WITNESS WHEREOF the parties
have executed this Lease.
|
BENTALL REAL ESTATE SERVICES
LIMITED PARTNERSHIP (By its
General Partner, Bentall Real Estate Services G.P. Ltd.) As Authorized
Agent for PENYORK
PROPERTIES III INC. (Landlord)
|
||
|
Per:
|
“Xxxx Xxxxxxxxxx”
|
|
|
(Authorized
Signatory)
|
||
|
c/s
|
||
|
Per:
|
“Xxxxxx Xxxxxx”
|
|
|
(Authorized
Signatory)
|
||
|
I/We
have the authority to bind the
Corporation.
|
||
|
OCCULOGIX, INC.
(Tenant)
|
|||
|
Per:
|
“Xxxx
Xxxxx”
|
||
|
Name:
|
Xxxx
Xxxxx
|
||
|
Title:
|
Chief
Financial Officer
|
||
|
c/s
|
|||
|
Per:
|
“Xxxxxxx
X. Xxxxxxx”
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President, Finance
|
||
|
I/We
have the authority to bind the
Corporation.
|
|||
- 31
-
SCHEDULE
"A"
LEGAL DESCRIPTION OF
PROJECT
ALL AND
SINGULAR those lands and premises situated, lying and being in the City of
Mississauga, in the Regional Municipality of Peel, and being those parts of
Block 10 on a Plan of Subdivision registered in the Land Registry Office for the
Land Titles Division of Peel as No. 43M-533 designated as Parts 1 and 2 on a
Plan of Survey deposited in the Land Registry Office as No.
43R-14899.
SUBJECT
TO an easement over the said Part 2, Plan 43R-14899 save and except Parts I and
2, Plan 43R-16904, as more particularly set out by Instrument No. 495246 as
amended by Instrument No. LT 1058959;
SUBJECT
TO an easement in favour of Bell Telephone Company of Canada and Mississauga
Hydro Electric-Commission, over so much of Block 10 on Plan 43M-523 as is
unencumbered by buildings, or other structures, as more particularly set out in
Instrument No. 495241;
Being all
of Parcel Block 10-5, Section 43M-533.
Schedule
"B"
OUTLINE PLAN OF
PREMISES
Building 0, Xxxxx
000
Schedule
“B-1”
OUTLINE PLAN OF
PREMISES
Building 0, Xxxxx
000
Schedule
"C"
SECURITY
AGREEMENT
Intentionally
Deleted
Schedule
"D"
SPECIAL
PROVISIONS
|
1.
|
Estimate of Operating Costs and
Realty Taxes
|
The
parties agree that Xxxxxxxx has estimated that Xxxxxx’s obligations hereunder in
respect of Operating Costs and Realty Taxes for the year 2005 would be
approximately $10.93 per square foot of the Rentable Area of the Premises; it is
understood that this estimate by Xxxxxxxx is a bona fide estimate made September
21, 2005, but that it is not intended by Landlord to be relied upon by Xxxxxx
and is not binding and does not impose liabilities on Landlord or affect
Xxxxxx’s obligations hereunder.
|
2.
|
Conditions to Tenant’s
Rights
|
If:
|
|
(a)
|
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
Tenant to be paid and performed, punctually and in accordance with the
provisions of the Lease;
|
|
|
(b)
|
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 Tenant and a receiving
order has not been made against Tenant, and no proceedings have been
commenced respecting the winding-up or termination of the existence of
Tenant;
|
|
|
(d)
|
no
receiver or other person has taken possession or effective control of the
assets or business of Tenant or a substantial portion thereof pursuant to
any security or other agreement or by any other means whatsoever, and
there are no outstanding writs of execution against
Xxxxxx;
|
|
|
(e)
|
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 Tenant and no change in
the name under which the business on the Premises is
conducted;
|
|
|
(f)
|
Xxxxxx
has continuously, actually physically occupied all of the Premises for the
active and diligent conduct of business in accordance with the terms of
the Lease; and
|
(g) Xxxxxx
has executed and delivered to Landlord the Lease in a form satisfactory to
Landlord,
then, and
only then, Tenant shall have the rights conferred under Sections 3, 4 and 6 of
this Schedule “D”.
|
3.
|
Rent Free
Periods
|
Subject
to the provisions of Section 2 of this Schedule “D”, Tenant shall not be
responsible for the payment of:
|
|
(i)
|
Basic
Rent, Operating Costs and Realty Taxes for the first two (2) months of the
initial Term of the Lease (the “First Rent Free Period”) but the Tenant
shall be responsible for the payment of all other items of Additional Rent
during the First Rent Free Period;
and
|
|
|
(ii)
|
Basic
Rent for the third month of the initial Term of the Lease (the “Second
Rent Free Period”) but the Tenant shall be responsible for the payment of
all items of Additional Rent during the Second Rent Free
Period.
|
If at any
time during the Term:
|
|
(a)
|
the
Lease is terminated by reason of a default of
Tenant;
|
|
|
(b)
|
Tenant
has become bankrupt or insolvent or has taken the benefit of any statute
for bankrupt or insolvent debtors, or has filed a proposal, or has made an
assignment for the benefit of creditors or any arrangement or
compromise,
|
then in
such event, and without prejudice to any of Landlord’s other rights and remedies
available to it under the Lease and at law, the unamortized portion of the First
Rent Free Period and Second Rent Free Period calculated from the date that
Landlord no longer actually receives payments of Rent under the Lease (whether
by way of Court Order or otherwise) on the basis of an assumed rate of
depreciation on a straight line basis to zero over the Term of the Lease shall
immediately become due and payable to Landlord as Additional
Rent.
|
4.
|
Right of First
Offer
|
Subject
to the provisions of Section 2 of this Schedule “D, and subject to existing
tenants’ prior rights, Tenant shall have a one time only right of first offer to
lease:
|
|
(i)
|
any
space in Building 9 (“First ROFO Space”);
and/or
|
|
|
(ii)
|
Suite
200 in Building 10 (“Second ROFO Space”) (collectively the “ROFO
Space”)
|
whenever
such space becomes available for re-leasing from time to time by the Landlord,
after the termination, surrender or expiry of the existing leases of such space
to occur following the date of the Lease or the leases of tenants relocated to
all or a portion of the ROFO Space (it being hereby acknowledged that, as of the
date hereof, the Second ROFO Space is currently available for lease and that
despite the foregoing, the Landlord shall be entitled to enter into a lease with
a third party for the ROFO Space or any part thereof at any time, from time to
time, until the whole of the ROFO Space is leased, without triggering the within
right of first offer) have expired or been terminated either by the tenant
(pursuant to any rights of termination it may have under its lease)
or by the Landlord (as a result of an event of default) and after any options to
renew or extend the ROFO Space granted to such tenant(s) under the
terms of such lease(s) have not been exercised or have expired. Further, if any
such tenant(s) either fail(s), or elect(s) not, to exercise its option to renew
or extend or if such tenant(s) do(es) not have an option to renew or extend
contained in its lease for the ROFO Space, Landlord shall, despite anything
contained in this Section 4 to the contrary, be free to enter into an agreement
with such tenant(s) extending the term of its lease for the ROFO Space without
triggering the within right of first offer.
In the
event that ROFO Space becomes available the Landlord shall provide the Tenant
with written notice (“Landlord’s Notice”), specifying what space is available
(i.e. either the whole or any part of the ROFO Space, as the case may
be) (“Available ROFO Space”) and the availability date for the Available
ROFO Space and the Tenant shall have ten (10) business days from
receipt of the Landlord’s Notice within which to deliver written notice (“ROFO
Notice”) to the Landlord of its agreement to lease the whole of the Available
ROFO Space on the same terms and conditions as contained in the Lease for the
Premises save and except that: (a) there shall be no Landlord’s Work, rent free
period or other financial inducements; (b) the basic rent payable for the
Available ROFO Space shall be ROFO Market Rent (“ROFO Market Rent” means the
annual basic rental which could reasonably be obtained by Landlord for the
Available ROFO Space from a willing tenant or willing tenants dealing at arms’
length with Landlord in the market prevailing for a term commencing on the
commencement date of the term of lease for the Available ROFO Space, having
regard to all relevant circumstances including the size and location of the
Available ROFO Space, the facilities afforded, the terms of the lease thereof
(including its provisions for Additional Rent), the terms aforesaid regarding
tenant inducements, the condition of the Available ROFO Space and the use of the
Available ROFO Space, and having regard to rentals currently being obtained for
space in the Building and for comparable space in other buildings comparably
located, and inducements being offered to tenants (including rent free periods,
allowances and other inducements); (c) the commencement date shall be as
specified by the Landlord in the Landlord’s Notice, and (d) the expiration date
shall be coterminous with the expiry date of the Lease, failing which this right
of first offer shall be null and void with respect to the Available ROFO Space
and the Landlord shall be free to lease the Available ROFO Space or any part
thereof to a third party on such terms and conditions as the Landlord, in its
sole discretion, determines and this right of first offer shall only apply to
the balance of the ROFO Space. For greater certainty, if the ROFO Market Rent is
not agreed upon between the parties within thirty (30) days of the delivery of
the Landlord’s Notice, the ROFO Market Rent shall be established in the manner
set out in Section 5 below and, in such event, there shall be no delay to the
commencement date of the Available ROFO Space as set forth in the Landlord’s
Notice and, until such time as the ROFO Market Rent is determined, the Tenant
shall pay to the Landlord the Basic Rent then payable hereunder for the
Premises, as applicable to the Available ROFO Space, and upon determination of
the ROFO Market Rent for the Available ROFO Space, either Landlord shall pay to
Tenant any excess, or Tenant shall pay to Landlord any deficiency, in the
payments of Basic Rent previously made by Tenant with respect to the Available
ROFO Space, without interest.
- 2
-
The
Tenant shall execute an agreement (to be prepared by the Landlord) amending the
provisions of the Lease in order to incorporate the terms of the
foregoing.
Any
Available ROFO Space which is made available to the Tenant under this Section 4
shall be dealt with as a whole.
|
5.
|
ROFO Market
Rent
|
Either
Landlord or 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 ROFO 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 ROFO Market Rent.
Should the Receiving Party fail to give notice to the Requesting Party within
the 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
Landlord and Xxxxxx 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
Arbitration Act, 1991
(Ontario), as amended or replaced. The expert appointed, either by
Xxxxxxxx and/or 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 Project is located for at least the immediately
preceding five (5) years. Within thirty (30) days after being appointed the
expert shall make a determination of the Market Rent for the ROFO Space, without
receiving evidence from either Landlord or Tenant. The cost of such
determination shall be borne by the Tenant. The determination of the expert as
to the ROFO Market Rent shall be conclusive and binding upon Landlord and Tenant
and not subject to appeal.
|
6.
|
Parking
|
|
|
(a)
|
Subject
to Section 2 of this Schedule “U’, throughout the Term, Tenant shall have
the right to use:
|
|
|
(i)
|
seven
(7) reserved underground parking spaces;
and
|
|
(ii)
|
twelve
(12) unreserved surface parking spaces (on a “first-come, first-served”
basis)
|
for
parking automobiles (collectively the “Parking Spaces”) in the parking
facilities at the Project (the “Parking Facility”), in such locations as
designated from time to time by Landlord or the operator of the Parking
Facility, and subject to the terms set out below. For each of such Parking
Spaces, Tenant shall pay to Landlord, whether or not Tenant actually uses the
Parking Spaces or any of them, the prevailing monthly rates charged from time to
time by Landlord or the operator of the Parking Facility for the use of reserved
and unreserved Parking Spaces respectively. Notwithstanding anything to the
contrary contained herein, there shall be no licence fee payable by Tenant to
Landlord or Landlord’s parking operator for Tenant’s use of the Parking Spaces
in the Parking Facility during the initial Term only, but, for greater
certainty, Tenant shall be responsible for payment to Landlord of its
Proportionate Share or share, as of the case may be, of Operating Costs and
Realty Taxes associated with the Parking Facility.
|
|
(b)
|
Tenant
shall ensure that Landlord is at all times in possession of up-to-date
information as to the owner, licence plate number and description of each
automobile authorized to use such Parking
Spaces.
|
- 3
-
|
|
(c)
|
Landlord
may from time to time make and amend such rules and regulations for the
management and operation of the Parking Facility as Landlord shall
determine and Tenant and all persons under its control, including without
limitation all users of the Parking Spaces, shall be bound by and shall
comply with all of such rules and regulations of which notice is given to
Tenant from time to time and all of such rules and regulations shall be
deemed to be incorporated into and form a part of the
Lease.
|
|
|
(d)
|
For
emphasis only, and without affecting or limiting the meaning of any
provision of the Lease, it is agreed that the following sections of the
Lease apply to the rights granted to Tenant hereunder in respect of the
Parking Spaces, namely Sections 13.5 (“Landlord’s Non-Liability”) and 13.6
(“Indemnity of Landlord”).
|
|
|
(e)
|
If
Tenant or any person permitted by Tenant to use any of the Parking Spaces
fails to comply with the provisions of the Lease in respect of the Parking
Spaces, including without limitation the rules and regulations from time
to time applicable to the Parking Facility, then Landlord shall have the
right to terminate or suspend the privileges of the offending party to use
the Parking Facility, provided that the exercise of such right by Landlord
shall not limit or affect the obligation of Tenant hereunder to pay for
all Parking Spaces.
|
|
|
(f)
|
No
motor vehicle other than a private passenger automobile, station wagon or
van shall be parked on or in any part of the Common Facilities of the
Project, including without limitation the Parking Facility, nor shall any
repairs other than emergency repairs immediately necessary for operation
of a vehicle be made to any motor vehicle in or on any of the Common
Facilities, including without limitation the Parking Facility, and no
motor vehicle shall be driven on any part of the Common Facilities other
than on a driveway or in the Parking
Facility.
|
|
|
(g)
|
It
is understood and agreed that Xxxxxxxx is not responsible for theft of or
damage to the vehicle or its equipment or articles left in the
vehicle.
|
|
|
(h)
|
It
is understood and agreed that no vehicle powered by propane, hydrogen or
natural gas are allowed in any underground portion of the Parking
Facility.
|
|
|
(i)
|
Tenant
may be required to pay to the Landlord a deposit amount for each parking
pass issued. Such parking deposit shall be held by the Landlord in the
event that any of the parking passes so issued are damaged, lost or
destroyed. Upon the expiry or earlier termination of the Lease, if the
deposit amounts have not previously been deducted at any time during the
Term, the deposit amounts shall be refunded to the Tenant in full upon
presentation to the Landlord of the same number of parking passes
originally issued to the Tenant, in good condition and
repair.
|
|
|
(j)
|
If
requested by Xxxxxxxx, Tenant shall execute Landlord’s standard form of
parking agreement to give effect to the
foregoing.
|
|
7.
|
Landlord’s
Conditions
|
Concurrently
with Xxxxxx’s execution and delivery of this Lease to Landlord, Tenant shall
deliver to Landlord such information as the Landlord requires (“Information”) to
satisfy itself as to the financial strength of Tenant and Tenant
hereby consents to Landlord making independent credit inquiries for that
purpose. This Lease is conditional for a period of ten (10) business days after
receipt by Landlord of such Information, together with this Lease and the Rent
Deposit Agreement duly executed by Xxxxxx, for Landlord to (i) satisfy itself as
aforesaid; and (ii) obtain the approval of its senior management.
If
Landlord notifies Tenant in writing within such conditional period that either
condition has not been satisfied, then this Lease and the Rent Deposit Agreement
shall be null and void and of no further force or effect. In the event of such
termination, Landlord shall return any deposits received by it to Tenant without
interest or deduction and Landlord shall not be liable for any losses, damages
or costs whatsoever. These conditions have been inserted for the sole benefit of
Landlord and may be waived by Landlord in its sole and absolute discretion at
any time on notice in writing to Tenant.
- 4
-
Schedule
"E"
EXCLUSIVE USES OF OTHER
TENANTS
0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxx
None as
of the date of this Lease.
Schedule
"F"
RENT DEPOSIT
AGREEMENT
THIS RENT DEPOSIT AGREEMENT is
dated October 17, 2005,
BETWEEN:
|
|
(hereinafter
called “Tenant”)
|
OF THE
FIRST PART
|
|
-
and -
|
|
|
PENYORK
PROPERTIES III INC.
|
|
|
(hereinafter
called “Landlord”)
|
OF THE
SECOND PART
WHEREAS:
|
A.
|
By
a lease of even date (“Lease”) between Landlord and Tenant, Landlord
leased to Tenant premises known as Suites 103 and 201, Building 9 (the
“Premises”) in the building municipally known as 0000 Xxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx, as more particularly described in the Lease,
for a term of One (1) Year and Six (6) Months, commencing on February 1,
2006 and expiring on July 31, 2007;
|
|
B.
|
To
induce Landlord to enter into the Lease, Xxxxxx has agreed to deliver to
Landlord a rent deposit in the amount of Twenty Four Thousand Six Hundred
and Thirty-Four Dollars and Sixty-Two Cents ($24,634.62) (the “Rent
Deposit”), to be held without interest and applied on the terms and
conditions set out in this
Agreement;
|
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged by the parties hereto, the parties hereto make the following
agreement:
|
1.
|
Tenant
shall deposit with Landlord the Rent Deposit. Provided Tenant is not then
in default, the amount of Twelve Thousand Three Hundred and Seventeen
Dollars and Thirty-One Cents ($12,317.31) shall be applied towards first
Rent accruing due under the Lease, after expiry of the First Rent Free
Period and Second Rent Free Period (as both of the foregoing terms are
defined in the Lease). Landlord shall hold the balance of the Rent
Deposit, without interest, as a prepayment of the Rent payable by Tenant
under the Lease during the Term and any renewals or extensions thereof and
any tenancy resulting from an overholding, and to secure and may be
applied against the other amounts referred to in paragraph 7
below.
|
|
2.
|
If
at any time any Rent payable under the Lease shall be overdue, all or any
portion of the Rent Deposit shall, at Landlord’s option, be applied to the
payment of any Rent then due and owing. Further, if Tenant defaults in the
performance of any of the terms, covenants, conditions and provisions of
the Lease as and when the same are due to be performed by Tenant, then all
or any part of the Rent Deposit shall, at Landlord’s option, be applied on
account of any losses or damages sustained by Landlord as a result of such
default.
|
|
3.
|
If
all or any part of the Rent Deposit is applied by Landlord on account of
the payment of Rent or on account of any default or any losses or damages
sustained by Landlord as aforesaid, then Tenant shall, within three (3)
days after demand from Landlord, remit to Landlord a sufficient amount in
cash or by certified cheque to restore the Rent Deposit to the original
sum required to be deposited as set forth herein plus interest on the
amount of such default, loss or damages sustained by Landlord at a rate of
three (3%) percent per annum in excess of the rate of interest known as
the prime rate of interest charged by Xxxxxxxx’s bank in Ontario and which
serves as the basis on which other interests rates are calculated for
Canadian dollar loans in Ontario from time to time, from the date of
default to the date the Rent Deposit is restored as
aforesaid.
|
|
4.
|
If
Tenant (i) complies with all of the terms, covenants, conditions and
provisions under the Lease and promptly pays all Rent therein throughout
the term; (ii) the Lease has not been Disclaimed (as hereinafter defined);
(iii) the Lease has not terminated for any reason prior to the natural
expiry date; and (iv) Tenant has complied with all of the obligations
under the Lease to the extent the same remains in Landlord’s possession
and is not applied to any of Tenant’s obligations hereunder, Landlord
shall return the balance of the Rent Deposit to Tenant within thirty (30)
days after the expiry of the Lease.
|
|
5.
|
Landlord
may deliver the Rent Deposit, or such portion thereof remaining on hand to
the credit of Xxxxxx, to any purchaser, mortgagee or assignee of
Landlord’s interest in the Premises or the Project under the Lease or in
the Lease and thereupon Landlord shall be and is hereby discharged from
any further liability with respect to the Rent
Deposit.
|
|
6.
|
In
the event of any bankruptcy, insolvency, winding-up or other creditors’
proceeding, the Rent Deposit shall be the absolute property of Landlord
and shall, at Landlord’s option, be automatically appropriated and applied
against the Rent and any other amounts referred to in paragraph 7
below.
|
|
7.
|
The
Rent Deposit shall secure and may, at Landlord’s option, be applied on
account of any one or more of the following: (i) the due and punctual
payment of all Rent and all other amounts of any kind whatsoever payable
under the Lease by Tenant whether to Landlord or otherwise and whether or
not relating to or payable in respect of the Premises, including, without
limitation, any amount which would have become payable under the Lease to
the date of the expiry of the Lease had the Lease not been Disclaimed or
terminated; (ii) the prompt and complete performance of all obligations
contained in the Lease on the part of Tenant to be kept, observed and
performed; (iii) the due and punctual payment of all other amounts payable
by Tenant to Landlord; (iv) the indemnification of Landlord in respect of
any losses, costs or damages incurred by Landlord arising out of any
failure by Tenant to pay any rent or other amounts payable under the Lease
or resulting from any failure by Tenant to observe or perform any of the
other obligations contained in the Lease; (v) liquidated damages in
compensation for the money spent by Landlord with respect to the Premises
to make them ready for Tenant’s use and occupancy; (vi) the reduction in
value of the Premises as a result of Tenant’s default; (vii) the
performance of any obligation which Tenant would have been obligated to
perform to the date of the expiry of the Lease had the Lease not been
Disclaimed or terminated; (viii) the losses or damages suffered by
Landlord as a result of the Lease being Disclaimed or terminated or (ix)
the repayment of the unamortized portion as of the date the Lease is
disclaimed or terminated of any allowances, inducements or other
incentives paid by Landlord in conjunction with the
Lease.
|
|
8.
|
The
rights of Landlord hereunder in respect of the Rent Deposit shall continue
in full force and effect and shall not be waived, released, discharged,
impaired or affected by reason of the release or discharge of Tenant in
any receivership, bankruptcy, insolvency, winding-up or other creditor’s
proceedings, including, without limitation, any proceedings under the
Bankruptcy and Insolvency Act (Canada) or the Companies Creditors
Arrangement Act (Canada), or the surrender, disclaimer, repudiation or
termination of the Lease (individually and collectively referred to herein
as “Disclaimed”) in any such proceedings and shall continue with respect
to the periods thereto and thereafter as if the Lease had not been
Disclaimed.
|
|
9.
|
Capitalized
expressions used herein, unless separately defined herein, have the same
meaning as defined in the Lease unless separately defined
herein.
|
|
10.
|
Time
in all respects shall be of the
essence.
|
|
11.
|
This
Agreement shall be binding upon and enure to the benefit of the parties
hereto and their respective heirs, administrators, successors and
assigns.
|
- 2
-
IN WITNESS WHEREOF the parties
hereto have executed this Agreement.
|
(Tenant)
|
||
|
Per:
|
||
|
Name:
Title:
|
||
|
Per:
|
||
|
Name:
Title:
|
||
|
I/We
have the authority to bind the
Corporation.
|
||
|
BENTALL
REAL ESTATE SERVICES LIMITED PARTNERSHIP
(By its General Partner, Bentall Real
Estate Services G.P. Ltd.) As Authorized Agent for PENYORK
PROPERTIES III INC. (Landlord)
|
||||
|
Per:
|
||||
|
(Authorized
Signatory)
|
||||
|
Per:
|
c/s
|
|||
|
(Authorized
Signatory)
|
||||
| I/We have the authority to bind the Corporation. | ||||
- 3
-
Schedule
"G"
ENVIRONMENTAL
QUESTIONNAIRE
|
Tenant’s
Name:
|
Premises:
|
Being
all of the premises leased from time to time pursuant to the
Lease
|
|
|
Address:
|
0000
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
|
||
|
Telephone:
|
Fax:
|
||
|
Person
Responsible:
|
|||
|
a)
|
Describe
the business activities carried in the Premises and specify raw materials
used, goods manufactured and any resulting waste materials or by-products
that are generated;
|
|
b)
|
Will
the business activities to be carried on in the Premises entail the use,
generating or storing of any Hazardous Materials (as hereinafter defined)
in any quantity? (including but not limited to chemical products,
degreasers, corrosives, flammable or combustibles, fuels, solvents,
paints, medication, oil, gas, batteries, extinguisher,
etc.)
|
|
NO o
YES o (If so,
describe…)
|
|
|
c)
|
Indicate
the approximate amounts of Hazardous Materials which will be used or
generated, monthly or annually, in the Premises.
|
|
d)
|
How
do you intend to store the Hazardous Materials described in c)
?
|
|
e)
|
How
will you dispose of the Hazardous Materials generated in the Premises by
your business and who will be the carrier?
|
|
f)
|
Will
the business activities to be carried on in the Premises require that you
obtain any certificate of authorization, permit or environmental
approvals, or provide environmental data (ie. NPRI or Ontario Reg. 127) to
government agencies?
|
|
NO o
YES o (If
so, give details and attach your certificate)
|
|
|
g)
|
Will
the business activities to be carried on in the Premises entail the
discharge of Hazardous Materials into the sewer system, water system or
into the air? If so, will pollution control equipment be
required in the Premises to comply with Environmental Legislation and
applicable Laws?
|
|
NO o
YES o (If
so, give details and list standards to be met)
|
|
|
h)
|
Will
the business activities to be carried on in the Premises necessitate the
installation of an underground or surface storage tank in the Premises or
on the Common Facilities?
|
|
NO o YES o (If
so, describe in detail the tank to be installed and material to be
stored)
|
|
|
i)
|
Do
you intend to have a prevention training or emergency plan in place to
prevent an environmental incident or to deal with one if it
occurs?
|
|
NO o
YES o (If
so, give details and attach a copy of the plan and/or training
procedure)
|
|
|
J)
|
Does
your firm have an environmental management program in
place?
|
|
NO o
YES o (If
so, give details and attach a copy of the program)
|
|
|
k)
|
Do
you have appropriate insurance to handle Hazardous
Materials?
|
|
NO o YES o (If
so, give details and attach a copy of the policy)
|
|
|
DATE:
|
TENANT’S
SIGNATURE:
|
||
All
defined terms where used herein shall have the meaning ascribed to them in the
lease of with this Schedule forms part.
- 2
-
Schedule
"H"
TENANT
WORK
Tenant
shall, at its cost and expense, complete or cause the completion of all
leasehold improvements which are required to complete the Premises for Tenant’s
business operations thereon prior to the Commencement Date (“Tenant’s Work”) in
accordance with the following provisions and those provisions of the Lease
applicable to the completion of Alterations to the Premises and in accordance
with the “Tenant Design
Criteria Manual”, if any, applicable to the Project.
Prior to
commencing any Tenant’s Work on the Premises, Tenant shall deliver to the
Landlord certified copies or certificates of insurance duly executed by Xxxxxx’s
insurers evidencing the placement of insurance coverage in compliance with the
provisions of the Lease. Tenant shall also deliver to Landlord certified copies
or certificates of insurance from its contractors and/or sub-contractors engaged
to perform Tenant’s Work, evidencing insurance coverage satisfactory to
Landlord, acting reasonably.
Any
damage to the Premises, the Building or the Project caused during the
performance of Tenant’s Work by Xxxxxx, its contractors, sub-contractors,
tradesmen or material suppliers shall immediately be repaired by Tenant to the
satisfaction of Landlord, or, at the Landlord’s option, by the Landlord at the
expense of Tenant payable on demand, plus fifteen (15%) percent of such costs
for Landlord’s supervision.
The
opinion in writing of the Landlord’s architect or other qualified consultant
shall be binding on both the Landlord and Tenant respecting all matters of
dispute regarding the Tenant’s Work, including the state of completion and
whether or not work is completed in a good and workmanlike manner and in
accordance with plans and specifications for Tenant’s Work as approved by the
Landlord and with this Schedule.
Tenant
shall furnish to the Landlord forthwith upon demand a statutory declaration or
other evidence satisfactory to the Landlord stating that there are no such
encumbrances, and that all accounts for work, services and materials have been
paid in full with respect to all of Tenant’s Work, together with evidence in
writing satisfactory to the Landlord that all assessments under the Worker’s Compensation Act
have been paid. In addition to the foregoing, Tenant shall also submit to
the Landlord forthwith any other information requested by the Landlord regarding
the supply of work, services and materials in connection with Tenant’s Work,
including without limitation details of the costs actually expended by Xxxxxx in
the performance of Xxxxxx’s Work.
Notwithstanding
anything contained herein, including without limitation the provisions relating
to Landlord’s approval of the plans and specifications pertaining to the
Tenant’s Work and to any rights of Landlord to perform any work or do any other
thing on Tenant’s behalf, and notwithstanding any notice which may be received
by Landlord from any of Tenant’s contractors or sub-contractors, the Landlord
shall not be liable, and no lien or other encumbrance shall attach to the
Landlord’s interest in the Premises, pursuant to the Construction Lien Act, in
respect of materials supplied or work done by Tenant or on behalf of Tenant or
related to Tenant’s Work, and Tenant shall so notify or cause to be notified all
its contractors and sub-contractors and shall indemnify the Landlord from any
liability whatsoever arising out of the performance of Tenant’s Work. Tenant
hereby acknowledges and agrees that the provision of any materials, work or
services performed by the Landlord at Tenant’s expense in respect of any
Tenant’s Work or pursuant to any provision hereof shall be deemed to be provided
by Landlord on Xxxxxx’s behalf as Xxxxxx’s contractor.
