Exhibit 10.46
OFFER TO LEASE
PREMISES 1.1 The undersigned
CARETEL INC.
(hereinafter called the "Tenant")
hereby offers to lease from
GRADUATE HOLDINGS LIMITED
and XXXXXX XXXXXX LIMITED
(hereinafter called the "Landlord")
through X.X. XXXXXXXX LIMITED, Real Estate Broker, those certain premises
(hereinafter called the "Demised Premises") in the building known as 00 Xxxxxx
Xxxxx Xxxx, Xxxxx 000 and 105, (the "Building"), together with any other
buildings in the development (the "Complex") in the CITY OF NORTH YORK, PROVINCE
OF ONTARIO, which demised premises are shown outlined in red on Schedule "A",
hereto attached, and which Demised Premises contain an area not to exceed 3,150
square feet rentable.
TERM 2. The Lease shall be for a period of five (5) years computed
from the Lease Commencement Date (as hereinafter defined). The
Lease Commencement Date shall be the latter of 1. The date of the
Landlord's certificate specifying that Lease Commencement work
(as defined in Schedule "B" attached hereto) has been
substantially completed, or 2. January 1, 1995.
RENT 3.1 Yielding and Paying therefor yearly and every year during
the Term hereby granted the following sum of lawful money of
Canada as an annual minimum rental (the "Minimum Rental"),
without deduction, abatement or set-off, together with additional
rental reserved in the Lease:
3.11 The Minimum Rental for the whole term shall be Twelve
Thousand six hundred ($12,600) plus G.S.T. per annum payable
in equal consecutive monthly installments of One thousand
and fifty dollars ($1,050) plus G.S.T., on the first day of
each month during such Period, based on a rate of Four
Dollars ($4.00) per square foot per annum.
3.12 The rental area of the leased premises, and any other area
of the building of which the leased premises forms a part, which
is required to be measured for the purpose of any calculation
pursuant to this Offer, and any lease shall be measured in
accordance with the method set out in the Lease. The decision of
the Landlord's architect shall be final and binding, and the rent
and any other amounts payable by the Tenant to the Landlord shall
be adjusted pursuant to such final area measurement, and shall be
made retroactive to the commencement date.
RENTAL AND
SECURITY
DEPOSIT 4. The Landlord acknowledges receipt of a deposit in the amount
of $2,100 plus 7% G.S.T., representing two months Minimum Rent,
of which the sum of $11,123.50 is to be applied against the last
month's Minimum Rent when the same falls due and the remainder
against the first month's Minimum Rent when the same falls due.
In the event that this Offer is not accepted the deposit shall be
returned to the Tenant without interest or deduction.
1
Not withstanding the above, the Tenant shall occupy the Leased
Premises totally Rent Free from November 1, 1994 to December 1,
1994 (the "Rent Free Period").
RENEWAL 5. Landlord covenants with Tenant that if Tenant duly and
regularly pays the rent and performs all of the covenants,
provisos and agreements on the part of Tenant to be paid and
performed in the Lease, and provided the Tenant is not then in
default under the terms of the Lease, Landlord, at the expiration
of the Term and upon Tenant's written request, mailed by
registered post, return receipt requested, to, or delivered to,
Landlord and received by Landlord at lease nine (9) months prior
to the expiration of the Term, grant to Tenant a renewal lease of
the Demised Premises on an "as is" basis for a further term of
five (5) years upon the same terms and conditions except as to
further renewal term and except to Minimum Rent, which Minimum
Rent is to be the then fair market Minimum Rent on a net carefree
basis (the "Renewal Minimum Rent") for the Demised Premises at
the commencement of the renewal term. If the parties are unable
to agree as to Renewal Minimum Rent, such Renewal Minimum Rent
shall be determined by arbitration. It is agreed that whether
such Renewal Minimum Rent is agreed upon or determined by
arbitration, such Renewal Minimum Rent shall in no event provide
for a Minimum Rent in an amount less than the Minimum Rent, for
the last year of the Term. Pending agreement of the parties as
to, or as to the determination by arbitration of the Renewal
Minimum Rent, Tenant shall continue to pay the Minimum Rent for
the last year of the Term, and upon agreement or determination by
arbitration as aforesaid shall commence to pay the Renewal
Minimum Rent retroactive to the commencement of the renewal term.
Any underpayments by the Tenant shall be adjusted retroactive to
the commencement of the renewal term.
COMMON
DRIVEWAY
AND
PARKING 6. The Tenant shall have the right at all times with others
entitled thereto (subject to the right of the Landlord from time
to time in its discretion to be reasonably exercised to designate
those parts of the parking areas which are to be utilized by the
Tenant) to use the common driveways and parking areas appurtenant
thereto, provided that the Landlord shall have the right to make
such changes, improvements or alterations as the Landlord may,
from time to time, decide in respect of the common outside areas,
including the right to change the location and layout of the
parking areas.
IMPOSSIBILITY
OF
PERFORMANCE 7. It is understood and agreed that whenever and to the extent
that Landlord shall be unable to fulfill or shall be delayed or
restricted in the fulfillment of any obligation hereunder in
respect of the supply or provision of any service or utility or
by the doing of any work or the making of any repairs by reason
of being unable to obtain the material, goods, equipment, service
or labour required to enable it to fulfill such obligation, or by
reason of any Statute, Law or Order in Council, or any regulation
or Order passed or made pursuant thereto, or by reason of the
Order or Direction of any Administrator, Comptroller, Board,
Governmental Department or Office, or other authority required
thereby, or by reason of any other cause beyond its control,
whether of the foregoing character or not, Landlord shall be
relieved from the fulfillment of such obligation and Tenant shall
not be entitled to compensation of any inconvenience, nuisance or
discomfort thereby occasioned.
USE OF
PREMISES 8. The Demised Premises shall not be used for any purpose other
than: offices and monitoring centre and electronic equipment
maintenance.
2
NET LEASE 9. It is the intention of this Offer to Lease that the Lease to
be signed by Tenant shall be a net carefree Lease to Landlord and
without limiting the generality of the foregoing, Tenant shall be
required to pay the following charges and expenses in addition to
Minimum Rent.
a. all realty taxes and all other assessments and duties,
including local improvements, levied against Xxxxxx's
leasehold improvements and the Demised Premises, including
business taxes, capital taxes and value added taxes;
b. it's proportionate share of all realty taxes, an all other
assessments and duties, including local improvements, levied
against the building, or the complex, if applicable, in
which the Building forms a part and the lands adjacent
thereto;
c. all water, gas and electric rates, and insurance premiums
with respect to the Demised Premises;
d. its proportionate share of all costs with respect to the
maintenance, operation, repair, replacement and upkeep of
the Building, or the Complex, if applicable, in which the
Building forms a part and the common areas including,
without limiting the generality of the foregoing, all
insurance placed from time to time by Landlord in connection
therewith together with an administrative fee of fifteen
percent of the aggregate of all such costs, described in
this paragraph 10(d); and
e. all charges for heating and air-conditioning the Demised
Premises (charges will be prorated if the unit serves more
than one premise).
REPAIR 10. Tenant covenants to repair the Demised Premises (reasonable
wear and tear, damage by fire, lightning and tempest and repair
to inherent structural defects in the Demised Premises not caused
or contributed to by Tenant only excepted).
ASSIGNMENT
SUBLET 11. Tenant shall not assign the Lease or sublet or part with
possession of all or part of the Demised Premises without the
prior written consent of Landlord, which consent, subject to
Landlord's right to terminate the Lease, shall not be
unreasonably withheld. There shall be no change in the effective
voting control of Tenant without the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
SIGNS 12. The Landlord shall provide the Tenant with identification
posted on any directory boards in the Building denoting
tenancies. The Landlord will provide the Tenant with the Building
standard suite number on or beside entrance doors. The Tenant
may, upon receiving the Landlord's approval, such approval not
unreasonably withheld, install an identification sign on or
beside its entrance door provided no holes are drilled into the
door. All further signage is subject to the Landlord's consent,
which consent may be unreasonably withheld and subject to
obtaining all municipal consents.
ALTERATIONS 13.1 Tenant shall not undertake any alterations in or to the
Demised Premises or any part thereof without obtaining the prior
written consent of the Landlord which consent shall not be
unreasonably withheld, provided any alterations shall be made by
contractors approved by the Landlord and provided further that
such consent may be withheld if Landlord has not received plans
showing the proposed alterations and requisite permits
authorizing such alterations. No alterations of a structural
nature may be undertaken. Tenant shall forewith pay as additional
rent, all fines, costs and expenses incurred by Landlord in
connection with Xxxxxx's failure to obtain all requisite permits.
13.2 All Tenant's mechanical work to be done by Xxxxxxxx's
mechanical contractor at Landlord's expense as per Schedule "B".
3
13.5 All electrical work that requires access into
Landlord's electrical room shall be completed by Xxxxxxxx's
electrician at Tenant's expense, provided such costs are
competitive and the work is other than that outlined in
Schedule "B".
WINDOW
COVERINGS 14. In the event the Tenant chooses to place window
coverings upon the interior of the windows of the Demised
Premises, they shall be of such material and style as
approved by Landlord for the entire Building. The window
coverings installed shall remain the property of the
Landlord.
STRUCTURAL
REPAIRS 15. Landlord covenants during the Term of the Lease to
make structural repairs at his own expense save as otherwise
provided, to the exterior walls, foundation and structure of
the Building, or the Complex, if applicable, excluding the
roof of the Building, or the Complex, if applicable, caused
by structural defects or weaknesses. Provided, however, any
structural damage caused or contributed by the misconduct or
negligence of Tenant, its agents, servants, invitees or
those for whom Tenant is at law responsible shall be
repaired by Landlord at the expense of Tenant.
STANDARD LEASE
FORM 16. Tenant and the Indemnifier, if any, shall execute and
Tenant shall deliver to Landlord within fifteen (15) days
after receipt thereof by Tenant, Landlord's standard form of
Lease incorporating the terms herein set forth subject to
reasonable amendments proposed by the Tenant's solicitor.
XXXXXXXX'S
WORK 17.1 Landlord shall complete the work described in Schedule
"B", attached hereto at Landlord's cost (Landlord's Work at
Landlord's Cost).
17.4 The Tenant will not bring upon the Demised Premises or
any part thereof any machinery, equipment, article or thing
that by reason of its weight, size or use might damage the
floors of the Demised Premises, and that if any damage is
caused to the Demised Premises by any machinery, equipment,
article or thing or by overloading or by any act, neglect or
misuse on the part of the Tenant or any of its servants,
agents or employees or any person having business with the
Tenant, the Tenant will forthwith repair the same or pay to
the Landlord the cost of making good the same.
ROOF OPENING 18. The Tenant shall not install any exhaust hood or
exhaust duct work through the roof of the Leased Premises or
the Development. The Landlord will provide all openings on
the roof of the Leased Premises and structural supports, in
such locations as designated on the Tenant's Plans as
approved by the Landlord for the purpose of the installation
of the Tenant's heating, ventilation and air-conditioning
system, all at tenant's sole cost and expense, without mark-
up, but including any of the Landlord's engineering fees and
costs.
ENTRY BY
LANDLORD 19. The Tenant acknowledges the Landlord's advice that the
Landlord may be maintaining in and about the Demised
Premises, utility meters, sprinkler lines and or riser
stations, electrical and mechanical distribution
installations which may be required in order to service not
only the Demised Premises but other parts of the Building of
which the Demised Premises form a part. In this regard, the
Tenant agrees that it shall be lawful, for the Landlord and
its agents to enter upon the Demised Premises in order to
carry out such repairs to such installations as may be
required and in order to facilitate the utilization of
4
such installations for the benefit of tenants occupying
other portions of the building of which the demised premises
form a part.
REGISTRATION 21. Tenant covenants and agrees not to register this Offer
to Lease or notice thereof at any time and, if registered by
Tenant for whatever reason, Landlord shall have the option
to terminate the Agreement resulting from the acceptance of
this Offer to Lease. Tenant shall not register the Lease.
However, Tenant may register a Notice of Lease for the
purpose of registration, provided such Notice of Lease shall
describe the parties, the Demised Premises, the Term of the
Lease and any renewals. Such Notice of Lease shall be
prepared by Xxxxxx's solicitors, and shall be subject to the
prior written approval of Landlord and its solicitors, at
Tenant's expense and shall be registered at Tenant's
expense.
NO
REPRESENTATION 22. It is agreed that there are no covenants,
representations, agreements, warranties or conditions in any
way relating to the subject matter of the Offer to Lease,
whether expressed or implied, collateral or otherwise,
except those set forth herein.
NO
ASSIGNMENT
OF THIS
AGREEMENT 23. The Agreement resulting from the acceptance of this
Offer to Lease shall not be assigned by or otherwise
transferred by Tenant.
TIME OF
ESSENCE 24. Time shall be of the essence.
LANDLORD'S
ACCEPTANCE 25. This Offer shall be irrevocable by Tenant and shall be
open for acceptance by Landlord for two (2) days from the
date of submission hereof, after which time, if not
accepted, this offer shall be null and void and all monies
paid hereunder shall be returned to the Tenant as aforesaid.
26. Schedules A and B form part of this Offer to Lease.
IN WITNESS WHEREOF, the parties have executed and sealed
this Offer.
DATED at North York this 1st day of September, 1994
SIGNED, SEALED AND DELIVERED ) CARETEL INC.
in the presence of: ) per:
)
)
)
) /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
) AUTHORIZED SIGNING OFFICER
The Landlord accepts the above Offer to Lease
this 13th day of September, 1994, and agrees to pay X.X. XXXXXXXX LIMITED a fee
of $6,700.00 plus G.S.T. upon the Tenant taking possession of the Premises.
) GRADUATE HOLDINGS LIMITED
)
)
) (Landlord)
) Per /s/ Xxx Xxxxx
-----------------------------------------
5
AUTHORIZED SIGNING OFFICER
The Tenant acknowledges receipt of a fully executed Offer to Lease this ___ day
of 1994.
CARETEL INC
per:
___________________________________
AUTHORIZED SIGNING OFFICER
6
SCHEDULE "A"
This schedule contains a diagram which is the floor plan.
7
SCHEDULE "B"
Xxxxxxxx shall at his own expense perform the following work prior to November
1, 1994:
1. Install 28-ounce commercial grade carpet rated for 10 year use by
manufacturer on all floors except as described in paragraph 2 below.
2. Install VCT tile in workshop, storage, washrooms and vestibule areas.
3. Paint the premises throughout with Xxxxxx's choice of colours.
4. Repair or replace all soiled and broken ceiling tiles and light fixtures
and clean lenses as required.
5. Install vertical blinds on all exterior windows.
6. Install kitchen sink, counter and cupboards as per SCHEDULE "A."
7. Remove electrical distribution panel from present location in Suite 104 and
install inside the Emergency Response Centre ("ERC") subject to review by
our electrician.
8. Construct all walls and supply doors complete with hardware as per
attached preliminary plan (SCHEDULE "A").
9. All walls and floor assemblies of the ERC to be constructed and/or upgraded
to 2-hour fire-rated slab to slab, ceiling 2 1/2" concrete on metal pan, as
is.
10. Install acoustic insulation in workshop wall as noted on SCHEDULE "A.".
11. Walls for the storage room to be constructed on top of the carpeting.
12. Washroom complete with fixtures (2 pc.) to be constructed within ERC and a
six foot counter with cabinets below, next to the washroom.
13. A door leading from expansion office into ERC at the Tenant's option.
8
SCHEDULE "C"
MISCELLANEOUS TERMS.
1. See page 1 of offer.
2. The final space plan shall be a revised version of attached Schedule "D,"
such revision to incorporate reasonable changes as proposed by the Tenant's
Architect and as approved by Landlord.
3. The Landlord will not unreasonably withhold its consent if the Tenant
requires the installation of antennae, uninterrupted power supply/
generator, or other equipment and devices necessary to conform to ULC
Standards, to Landlords installation specifications.
4. Landlord to provide 24-hour HVAC to the premises at no additional cost 7
days a week.
5. Tenant to have free access to parking for ten (10) spots.
9