LEASE DEFAULT AGREEMENT
EXHIBIT
4.69
THIS AGREEMENT made as of the 20th day
of August, 2020.
B E T W E E N:
Xxxxxx X. Xxxxxxxxx Properties Inc. and
Dufferin Lumber and Supply Company
Limited
(collectively
herein the “Landlord”)
OF THE FIRST PART
-and
Intellipharmaceutics
Corp.
(herein
the “Tenant”)
OF THE SECOND PART
WHEREAS the:
A. Landlord
and the Tenant are parties to lease (the “Lease”) for a
five (5) year term (the “Term”) for the occupation by
the Tenant of real property known municipally as 00 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx (the “22 Building”) and 00
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx (the “30 Building”)
(collectively herein the “Premises”), being two
industrial buildings having an aggregate area of approximately
65,000 square feet of rentable area) which Lease is dated December
1, 2015;
B. Subject
to the provisions of Recital I hereof, the Tenant is in occupation
of the Premises and is actively conducting it’s business at
the Premises;
C. Landlord
is in good standing under the terms of the Lease;
D. Term
of the Lease expires on November 30, 2020;
E. Tenant
acknowledges that the Tenant is in default in payment of the Rent
reserved under the Lease, and, at the date hereof, the Tenant
acknowledges itself indebted to the Landlord in the amount of
$383,210.79 (the “Arrears”) as of the date hereof and
more particularly set forth in Schedule A annexed hereto. For
greater certainty, and notwithstanding the foregoing, the Tenant
acknowledges that the Tenant is liable for additional expenses for
utilities and realty taxes accruing from the date of the last
invoicing from the Landlord. The Tenant acknowledges that if the
Tenant defaults under this Agreement or makes further defaults
under the provisions of the Lease, the Landlord will incur
additional costs and legal fees in pursuing the Landlord’s
rights hereunder in respect of enforcement of the Landlord’s
rights under the Lease against the Tenant.
F. Landlord,
by way of demand letter (the “Demand Letter”) dated April 28,
2020, the receipt of which Demand Letter is hereby acknowledged by
the Tenant, advised the Tenant that the Tenant is in default (the
“Default”) under the Lease as the Tenant failed to make
the required payments owing under the Lease;
G. Tenant
continues to be in breach of the terms of the Lease as set out
herein;
H. Landlord
has the immediate ability to take remedial steps under the Lease in
order to exercise the rights of the Landlord under the Lease, in
law and to recover the Arrears and such other damages suffered by
the Tenant as a result of the Default, as the Landlord may suffer
pursuant to the terms of the Lease and under applicable law;
and
I. The
Tenant surrendered the 22 Building to the Landlord effective June
30, 2020 and the parties executed a Lease Surrender Agreement to
document the terms thereof; and
NOW THEREFORE In consideration of the
sum of $10 and for other good and valuable consideration, the
receipt and sufficiency of which are hereby irrevocably
acknowledged by the Tenant, the parties agree as
follows:
1.
The Tenant has
reviewed and acknowledges that each of the foregoing recitals is
true and correct as of the date hereof and such recitals for part
of the provisions of this Agreement.
2.
The Tenant
acknowledges that the:
(a)
Tenant is indebted
to the Landlord under the Lease in the amount of the Arrears
specified in the recitals of this Agreement as at the date
specified therein provided herein; and
(b)
Landlord has made
proper demand for payment of the Arrears in accordance with the
provisions of the Lease, pursuant to the Demand Letter and is at
the date hereof unconditionally entitled to enforce the
Landlord’s rights under the Lease and under applicable law as
a result of the default under the Lease by the Tenant. The Landlord
shall not be required to make any further written or other demands
on the Tenant prior to exercising any remedies available to the
Landlord under the Lease or under this Agreement.
3.
The Tenant
acknowledges that the Tenant has no defences, counterclaims or
rights of set-off or reduction to any claims which might be brought
by the Landlord under the Lease.
4.
The Tenant confirms
that the Landlord is in good standing and is not in default under
its obligations under the Lease.
5.
Commencing
September 1, 2020 and for each month or part thereof of that the
Tenant is in occupation of the 30 Building, the Tenant will make
prompt and full payment to the Landlord of the Rent due under the
Lease and any other charges, fees or payments due hereunder,
without deduction or abatement, and, without limiting the
generality of the foregoing, and payment of all Additional Rent and
other charges due under the Lease.
6.
The Tenant shall
pay the Arrears to the Landlord by way of lump sum payment to the
Landlord’s legal counsel, Xxxxxxxxx Xxxxxx LLP, by in trust,
by wire transfer, on or prior to 5:00 pm on Monday, August 24,
2020. For greater certainty, the Tenant shall remain liable to the
Landlord, notwithstanding the calculation of the Arrears for
unbilled utilities and realty tax charges which are not included in
the Arrears referred to in Schedule A annexed hereto.
7.
The Tenant shall
pay a further sum to the Landlord of $100,000.00, plus HST (the
“Fee”) to compensate the Landlord for i) interest accruing on the Arrears, and
ii) other losses and other
costs (including legal fees and other charges) suffered or incurred
by the Landlord as a result of the default of the Tenant under the
Lease. For greater certainty, the Fee shall not be credited against
further Rent owing under the Lease, but is agreed upon liquidated
damages for charges, costs and losses incurred as a result of the
default under the Lease of the Tenant. The Fee shall be paid to the
Landlord by the Tenant in six (6) equal, consecutive, monthly
payments of $16,666.67 plus HST of $2,166.67 each, the first of
which monthly payments of the Fee to be paid to the Landlord on
September 15, 2020 and thereafter on the 15 th day of each calendar
month thereafter until the Fee is fully paid by the Tenant. For
greater certainly, the Fee shall be treated and considered to be
Additional Rent under the Lease and default in payment of the Fee
by the Tenant may be enforced by the Landlord as if such default
was a default in payment of Rent under the Lease.
8.
Provided that the
Tenant makes the payments referred to in paragraphs 6 and 7 hereof
and complies otherwise with all obligations of the Tenant under the
Lease and this Agreement, the Landlord hereby acknowledges that the
Tenant’s default under the Lease has been cured and that the
Tenant is in good standing under the Lease to the date hereof. For
greater certainty, such covenant of the Tenant shall not reduce or
otherwise limit or be deemed to reduce or limit any other rights in
favour of the Landlord in respect of any other defaults of the
Tenant under the Lease arising or occurring under this Agreement
hereafter.
9.
The Tenant
reaffirms its obligations under the Lease and confirms that the
Lease remains in full force and effect and is unamended as of the
date hereof, except to the extent required by the terms of this
Agreement.
10.
The Tenant shall,
upon written request by the Landlord, duly execute or deliver or
cause to be executed or delivered to the Landlord such further
instruments, agreements or similar documents or do or cause to be
done such further acts as may be necessary or desirable in the
reasonable opinion of the Landlord to carry out the provisions and
purposes of this Agreement.
11.
The Lease is hereby
amended to remove the provisions contained in Articles 2.3
(Renewal), 9 (Tenant’s Option to Purchase) and 10.01 (First
Refusal Right) in their entirety. In all other respects, save and
except as specifically provided, the parties affirm the provisions
of the Lease.
12.
Provided that all
obligations hereunder owed by the Tenant to the Landlord under this
Agreement and under the Lease are satisfied and, without in any way
limiting the generality of the foregoing, the payments of the
Arrears and the Fee is made in the manner and at the times provided
herein, the Landlord shall extend the term of the Lease for the 30
Building for a one (1) year period commencing on December 1, 2020
and shall terminate on November 30, 2021. During such extended
period, the Basic Rent provided for in the Lease for the 30
Building shall be amended to be $8.50 per square foot per annum (25,000 square feet -
$17,708.33 per month Basic Rent) plus all Additional Rent and HST
and otherwise in accordance with the provisions of the Lease. From
and after December 1, 2021, provided the Tenant is itself occupying
the 30 Building, the Lease will continue on a month-to-month basis,
and the tenancy may be terminated by either the Landlord or the
Tenant, by providing the other with 90 days written notice of the
intention to terminate the tenancy. Upon such written notice being
provided, the Tenant shall vacate the 30 Building within 90 days
and the Tenant will comply with all obligations of the Tenant under
the Lease to the date of vacating the 30 Building, and the Lease
shall be thereafter terminated.
13.
All other terms and
conditions of the Lease shall continue in full force and effect
save and except as amended by this Agreement. To the extent that
any provision contained in the Lease is inconsistent with this
Agreement, this Agreement shall prevail.
15.
This document may
be executed in counterparts and execution by all parties hereto of
counterparts shall result in this Agreement being binding on the
parties hereto.
16.
For purposes of
notices to be provided to the Landlord by the Tenant under the
Lease, the provisions of Article 11.1 of the Lease shall be amended
to provide that notices to the Landlord shall be made by e-mail
communication to the Landlord at xxxx@xxxxxxx.xxx with a copy to
xxxxx@xxxxxxxxxxxxxxx.xxx and notices to the Tenant by the Landlord
shall be made by e-mail communication to the Tenant at
xxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx with a copy to
xxxxxx@xxxxxx.xx.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.
|
|
IN WITNESS WHEREOF the parties have executed this
Agreement.
|
DUFFERIN LUMBER AND
SUPPLYCOMPANY LIMITED
By: /s/
X.X.Xxxxxxxxx
Name: X. X.
Xxxxxxxxx
Title: President
I have authority to bind the
Corporation
|
|
INTELLIPHARMACEUTICS INC.
|
||
|
By:
|
/s/ I.
Odidi
|
|||
|
Name:
I. Odidi
|
|
|||
|
Title: PresidentI have authority to bind the
Corporation
|
|
|||
|
|
|
|
||
|
|
|
XXXXXX X. XXXXXXXXX PROPERTIES INC.
|
||
|
By:
|
/s/ X. X.
Xxxxxxxxx
|
|||
|
Name:
X. X. Xxxxxxxxx
|
|
|||
|
Title:
President
I have
authority to bind the Corporation
|
|
|||
|
|
|
|
||
