EXHIBIT 10.17
Etobicoke #3
This INDENTURE made the 20th day of July 1998
IN PURSUANCE OF THE SHORT FORM OF LEASES ACT
BETWEEN:
COMWEST PROPERTIES LIMITED
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
VISIBLE GENETICS INC.
(herein called the "Tenant")
OF THE SECOND PART
WITNESSETH:
1. That in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of
the Tenant to be paid, observed and performed, the Landlord
doth demise and lease unto the Tenant that designated portion
containing approximately 10,500 square feet of the buildings
erected upon the lands and premises situate, lying and being
in the City of Toronto and in the Province of Ontario
municipal known as 291 AND 295 Evans Avenue, including in
premises demised hereunder the windows and exterior doors
thereof, together with the right at all times with others
entitled thereto, to use the common driveways and the parking
areas appurtenant thereto (hereinafter called the "common
outside areas"), the said premises and rights being
hereinafter sometimes collectively called the "demised
premises"; provided that the Landlord shall have the right to
make such changes and improvements or alterations as the
Landlord may, from time to time, decide in respect of the
common outside areas, including the rights to change the
location and layout of the parking areas and to increase or
reduce the size thereof; further provided, however, that the
Landlord shall not reduce the number of parking spaces on the
said lands and premises to less than the minimum number
required by the applicable laws and regulations.
2. To have and to hold the demised premises unless such term
shall be sooner terminated as hereinafter provided, for and
during the term of two (5) years to be computed from and
inclusive of the 1st day of September, 1998 (hereinafter
called the "lease commencement date" and from henceforth next
ensuing and fully to be completed and ended on the 31st day of
August, 2003.
PROVIDED, and it is hereby agreed, that if the whole of the
demised premises are not ready for occupancy by the Tenant on
the lease commencement date, then the rent shall be
apportioned proportionately according to the amount of space
ready for occupancy and no responsibility whatsoever shall
attach to the Landlord if the demised premises are not so
ready by the lease commencement date. The certificate of the
Landlord's architect shall be final and binding upon both
parties as to whether or not the entire demised premises are
ready for occupancy and, if not, as to the proportion of space
therein that is available for occupancy. In such event the
term of this lease shall be extended by a number of days equal
to the number of days from and including the lease
commencement date to and including the date as of which the
demised premises are ready for occupancy as so certified.
Use of premises 3. The tenant shall use and occupy the demised premises only
for office and storage and for no other purpose; provided the
Tenant, in the use and occupation of any business therein,
shall comply with all requirements of all laws, orders,
ordinances, rules and regulations of the Federal, provincial
and Municipal authorities and with any direction or
certificate of occupancy issued pursuant to any law by any
public office or Officers. The Tenant covenants that it will
not use or permit the demised premises or any part thereof to
be used for any dangerous, noxious or offensive trade or
business and will not cause or maintain any nuisance in, at or
on the demised premises.
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Rent 4. (a) Yielding and paying therefor yearly and every year
during the term hereby granted the sum of
$62,425.00 of lawful money of Canada to be paid
without any deduction or set-off whatever in
advance in equal consecutive monthly installments
of $5,206.25 each on the first day of each month
in each year during the term hereby demised, (it
being understood that such annual rental is
calculated at the rate of $5.95 per sq. ft. per
annum), together with additional rent hereinafter
reserved.
(b) Where the term of this lease commences other than
on the first day, or ends earlier than on the last
day, of a calendar month:
(i) the rent for the period or periods of
less than a full calendar month shall
be that fraction of the monthly
installment of rent of which the
numerator is the number of days of such
month within the term of this lease and
the denominator is the number of days
of such month.
(ii) the rent for the period of less than
one calendar month occurring at the
commencement of the term of this lease
shall be payable on or before the lease
commencement date.
(iii) the rent for the period of less than
one calendar month occurring at the end
of the term of this lease shall be
payable on or before the first day of
the last calendar month commencing
during the term of this lease.
Payment 5. All payments required to be made by the Tenant under or
in respect of this lease shall be made to the Landlord
at the Landlords office 365 Evans Avenue, Suite 601 in
Toronto or to such agent or agents of the Landlord or at
such other place as the Landlord shall hereafter from
time to time direct in writing to the Tenant.
Payment of The Landlord acknowledges receipt of $13,750.00 from the
Security Tenant to be held by the Landlord as security for the
due performance by the Tenant of all its covenants and
obligations on its part herein contained and to be
applied to the damages resulting from default by the
Tenant on any of its covenants and obligations
hereunder, or towards the payment or reduction of any
claim of the Landlord against the Tenant; provided that
the Tenant is not in default or in breach of any of its
covenants or obligations and has not been declared
bankrupt, then the aforesaid security deposit shall be
returned to the Tenant within fifteen (15) days after
the expiration of the lease term.
Free Rent Notwithstanding any thing prior herein, there shall be
no rent payable for the month of September 1999 nor for
the month of September 2000. The Tenant shall still be
required to pay additional rent and utility charges for
the said two months.
Tenant's 6. The Tenant covenants with the Landlord.
Covenants
Rent (a) to pay rent:
Taxes and (b) (i) as additional rent, in each and ever year
Utilities during the term hereof, to pay and discharge in
the proportion that the area of the demised
premises within the said building (measured from
the outside of the outside walls to the centre of
the demising walls) bears to the total rentable
area (measured from and to the outside of all
outside walls) of all buildings erected on the
lands (hereinafter called the "Tenant's
proportion"), all taxes (including local
improvement rates), charges, rates, duties and
assessments that may be levied, rated, charges or
assessed against the lands and the buildings
erected thereon, the Tenant's proportion of all
business taxes, if any from time to time payable
in respect of the parking areas, entrances, exits,
pedestrian walkways, roadways, service areas or
any part thereof, and the whole of every other
tax, charge, rate, duty, assessment or payment
which may become a charge or encumbrance upon or
levied or collected upon or in respect of the
demised premises or any part thereof, whether
charged by any municipal, parliamentary or other
body during the said Term. The taxes, local
improvement rates, charges, rates, duties
assessments and payments as hereinbefore defined
are hereinafter referred to as the "real property
taxes" and shall include a tax or excise on rents
or other tax however described, levied by any
relevant governmental authority against the
Landlord or the rent, as a clearly ascertainable
substitute in whole or inpart for taxes assessed
or imposed on the land and buildings or either of
them, of which the demised
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premises form a part. The Landlord will, at the
commencement of this lease and thereafter by
calendar year, estimate the real property taxes
levied against the said lands and buildings and
the demised premises for the next ensuing year and
the Tenant shall pay one-twelfth (1/12) of the
Tenant's proportion hereof at the times at which
rent is payable hereunder.
Notwithstanding any thing hereinbefore contained,
in the event that at the time when the payment of
the real property taxes due, the Landlord shall
not have on deposit a sufficient sum to pay the
full amount thereof, the Tenant shall forthwith
upon demand pay the Tenant's proportion of the
amount of any deficiency to the Landlord. When
final bills for the real property taxes in any
year have been received, the Landlord and Tenant
will adjust such in accordance with such bills. If
the Tenant has not paid the full amount of the
Tenant's proportion thereof, the amount of the
underpayment shall be paid by the Tenant to the
Landlord forthwith without demand. If the Tenant
has overpaid the Tenant's proportion, the amount
of such overpayment shall be forthwith paid by the
Landlord to the Tenant. The certificate of the
Landlord's auditor as to any amount which may be
owing by either party to the other under this
subclause shall, in the event of dispute, be
binding on the Landlord and the Tenant.
As an alternative to the foregoing method of
determining the share of the real property taxes
which the Tenant is obligated to pay pursuant to
the provisions of this paragraph 6 the Landlord
may, in its sole discretion and at its option,
base the Tenant's share of the real properly Taxes
upon the value of the demised premises as compared
to the value of the buildings of which the demised
premises may form a part from time to time. As
information as to such value may be made
available, firstly, by the relevant municipal
authorities through the separate assessments of
the demised premises and the said building or,
secondly, as may be ascertained through the realty
or business tax assessment rolls of the City of
Toronto or, thirdly, if separate assessments are
not available in order to determine the aforesaid
values, the Tenant shall pay a share of the real
property taxes as allocated to the demised
premises by the Landlord, the Landlord shall
allocate the real property taxes firstly with
respect to said outside common areas and
facilities and secondly, with respect to premises
intended for leasing and the Landlord shall make a
further allocation of such taxes as between each
of the individual premises intended for leasing on
an equitable basis having regard, amongst other
things, to the various users of the premises
intended for leasing comprising the whole of the
lands and premises of which the demised premises
form a part as aforesaid; in making such
allocation, the Landlord shall, at all times, act
reasonably and as would a prudent owner and in no
event shall the real property taxes collected by
the Landlord from all tenants of the Building of
which the demised premises form a part and from
all tenants of other buildings located on the said
lands and premises exceed 100 per cent of the real
property taxes as may be levied by the relevant
taxing authority, in any given year, against the
whole of the said lands, premises and buildings;
(ii) to pay business and other governmental taxes,
charges, rates, duties and assessments levied in
respect of the Tenant's occupancy of the demised
premises, or in respect of the personal property
or business of the Tenant on the demised premises,
as and when the same become due; and also if the
Tenant or any permitted assignee or subtenant of
the Tenant shall elect to have the demised
premises, or any part thereof, assessed for
separate school taxes, the Tenant shall, on
demand, pay to the Landlord, notwithstanding
anything hereinbefore contained, as soon as the
amount of the separate school tax is ascertained,
any amount by which the separate school taxes
exceed the amount which would have been payable
for school taxes had such election not been made.
(iii) to pay as the same become due respectively
all charges for public and private utilities,
including without limitation, water, gas,
electrical power or energy, steam or hot water
used upon or in respect of time demised premises
and for fittings, machines, apparatus, meters or
other things leased in respect thereof, and for
all work or services performed by any corporation
or commission in connection with such public
utilities; if no separate meter is provided for
any such utility, the Tenant shall pay to the
Landlord the Tenant's proportion of the total cost
of such utility with respect to the buildings of
which the demised
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premises form a part, as estimated by the
Landlord, upon periodic demand of the Landlord;
provided in the event the Landlord should
determine, in its discretion, that the Tenant's
use of such commonly metered utility is in any way
unusual, the Landlord may, at its option, but at
the expense of the Tenant, install for the demised
premises a separate or sub-meter with respect to
such utility, whereupon the Tenant's cost in
connection with such utility shall be determined
in accordance with such separate or sub-meter;
(iv) the Tenant shall has the right to contest, by
appropriate legal proceedings, at its own expense,
the validity of any tax, rate (including local
improvement rates), assessment or other charges
referred to in this paragraph. Notwithstanding
anything in this lease to the contrary, such
contestation by the Tenant shall not be deemed to
be a default in the payment of such taxes, rates
(including local improvement rates), assessments
or other charges until the outcome thereof is
finally determined provided it is lawful to
postpone such payment until such time;
Cost of (c) (i) as additional rent, in each and every year
Maintenance during the term hereof, to pay to the Landlord in
addition to the rental specified in paragraph 4 hereof
its proportionate share (as hereinafter defined) of the
Landlord's actual costs and expenses of maintaining,
operating, repairing and administering the Buildings of
which the demised premises are a part, and the common
areas and facilities of the said buildings such costs
and expenses to include, without limitation;
(A) the total costs and expenses incurred by the
Landlord in insuring the lands, buildings,
improvements, equipment and other property from
time to time comprising the said buildings and the
common areas and facilities thereof, in such
manner and in such companies and form, and with
such coverage and in such amounts as the Landlord,
at its sole discretion, from time to time shall
determine including, without limitation, fire
insurance with extended coverage endorsement,
public liability and property damage insurance and
loss of rental insurance;
(B) real property taxes ( including school taxes
and local improvement rates) and all business and
other taxes, if any, from time to time payable by
the Landlord levied or assessed both against or
allocated by the Landlord pursuant to paragraph
6(b)(1) hereof, against or in respect of the
common areas and facilities of the said buildings
or against the Landlord on account of its
ownership thereof and capital tax imposed upon the
Landlord in respect of the capital employed by it
in the ownership of the buildings computed as if
the buildings were the only real property of the
Landlord;
(C) the total costs of operating, maintaining,
lighting, cleaning including snow and ice
removable and clearance), supervising, policing,
landscaping, repairing and replacing all common
areas and facilities of the said buildings
including, without limitation, all monies paid to
persons, firms or corporations employed by the
Landlord to perform same; and
(D) all expenses incurred or paid by the Landlord
in connection with the maintenance, repair,
replacement operation and management of the said
buildings and all services connected therewith,
together with an administrative fee of five
percent of such annual costs and expenses
aforesaid.
(ii) The term "proportionate share" used in this
paragraph 6(c) shall mean a fraction, the
numerator of which is the rentable area of the
demised premises and the denominator of which
total rentable area of the said buildings of which
the demised premises form part.
(iii) The amounts payable by the Tenant pursuant to this
paragraph 6(c) may be estimated by the Landlord
for such period or periods as the Landlord may
determine and the Tenant agrees to pay to the
Landlord its proportionate share as so estimated,
of such amounts in monthly installments in advance
during such period(s) together with all other
rental payments provided for in this Lease.
Notwithstanding the foregoing, as soon as bills
for all or any portion of the said amounts so
estimated are received, the Landlord may bill the
Tenant for its proportionate share thereof (less
all amounts previously
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paid by the Tenant on the basis of the Landlord's
estimate aforesaid which have not already been so
applied) and the Tenant shall pay to the Landlord
such amounts so billed as additional rent on
demand. At the end of the period for which such
estimated payments have been made, the Landlord
shall deliver to the Tenant a statement of the
actual amounts and costs referred to in this
paragraph 6(c) and the determination of the
Tenant's proportionate share thereof, and if
necessary, an adjustment shall be made between the
parties hereto. If the Tenant shall have paid in
excess of such actual amounts, the excess shall be
refunded by the Landlord within a reasonable
period of time after delivery of the said
statement. If the amount the Tenant paid is less
than such actual amounts, the Tenant agrees to pay
to the Landlord any such extra amount or amounts
with the next monthly payment of rent.
Repairs (d) at its own expense, to maintain and keep the
interior of the demised premises and every part thereof
in good order and condition and promptly to make all
needed interior repairs and replacements (reasonable
wear and tear and damage by fire, lightning and tempest
only excepted) and, without limiting the foregoing, to
keep the demised premises well painted, clean and in
such condition as would a careful owner;
Inspection (e) that it shall be lawful for the Landlord and its
agents at all reasonable times during the said term, to
enter the demised premises to inspect the condition
thereof and to make repairs, alterations, or
improvements to the demised premises or to the building
of which the demised premises form part and the Tenant
shall not be entitled to compensation for any
inconvenience, nuisance or discomfort caused thereby.
Where an inspection reveals repairs, which are the
obligation of the Tenant hereunder to make, are
necessary, the Landlord shall give to the Tenant notice
in writing, and thereupon the Tenant will, within one
(1) calendar month from the date of delivery of the
notice, make necessary repairs in a good and workmanlike
manner, failing which the Landlord may make such repairs
and the cost thereof shall be payable by the Tenant.
Leave (f) at the expiration or sooner determination of the
Premises term hereof, peaceably to surrender and yield up to the
In Good Landlord the demised premises with the appurtenances,
Repair together with all buildings or erections which at any
time during the said term shall be made therein or
thereon, in good and substantial repair and condition,
reasonable wear and tear and damage by fire, lightning,
tempest and structural defect only excepted:
Heating and (g) to heat the demised premises in a reasonable manner
Air at its own expense from heating equipment supplied by
Conditioning the Landlord and to maintain, keep in good repair and
replace, if necessary, at its own expense, the said
heating equipment and such air conditioning equipment as
may be supplied by the Landlord. Heating of the demised
premises is to be maintained so that at all times the
demised premises and the contents thereof shall be
protected from damage by cold or frost. The Landlord
shall, to the extent the same are assignable, assign to
the Tenant all guarantees and warrants with respect to
such equipment;
Public Orders (h) to comply promptly with all requirements of the
Local Board of Health, Police or Fire Department and
Municipal authorities respecting the demised premises:
Assignment (i) (i) not to assign, sublet or part with possession of
Subletting the demised premises or part thereof or permit the
demised premises or any part thereof to be occupied by
anyone other than the Tenant, without the prior written
consent of the Landlord, provided such consent shall not
be unreasonably withheld, and further provided that the
Landlord may, within ten (10) days of receiving a
request for such consent, give notice in writing to the
Tenant terminating this lease effective not earlier than
the proposed date of the assignment or commencement of
the subtenancy. The Landlord shall not be deemed to have
withheld such consent unreasonably if;
(A) the Tenant, when requesting such consent, does
not submit to the Landlord the full name and
address of the proposed sub-tenant or assignee, a
statement of the use to which the proposed
sub--tenant or assignee wishes to put the demised
premises, the proposed effective date of any
assignment or the proposed effective date of a
sublease, the net rent per square foot to be paid
by a proposed sub-tenant of the total
consideration to be paid by a proposed assignee
for an assignment of the Lease, a copy of the
proposed sub-lease for an assignment of the Lease,
a copy of the proposed sub-lease and either
reasonably satisfactory financial references from
a chartered bank or a copy of the
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latest audited financial statements of the
proposed sub--tenant or assignee which shall not
be in respect of a period ended more than Eighteen
(18) months prior to the date of the Tenant's
request:
(B) the proposed sub-tenant or assignee wishes to
use the demised premises for a use or uses other
than that or those permitted hereunder.
(ii) the following shall be deemed to be conditions of
any consent given by the Landlord pursuant to the
provisions of this subparagraph 6(h) whether or
not expressed to be so in such consent;
(A) notwithstanding the granting of consent to a
sub-tenancy the Tenant shall remain liable
to the Landlord on all the covenants and
agreements herein contained;
(B) if the net rent per square foot to be paid
by a sub-tenant, whether in cash, goods,
services or other consideration, exceeds the
net rent per square foot, payable hereunder,
the Tenant shall pay the Landlord monthly
the amount of, or an amount equivalent to,
such excess;
(C) if the Tenant receives, whether directly or
indirectly and whether in the form of cash,
goods or services, any consideration for the
assignment of this lease such amount, or the
equivalent in money of such amount, shall be
paid to the Landlord;
(D) no sub-tenant or assignee shall further
assign or sublet without the consent of the
Landlord, which consent shall not be
unreasonably withheld and the provisions of
this subparagraph 6(h) shall apply, to all
requests for such consent as if the
sub-tenant or assignee seeking such consent
were the Tenant named herein;
Upon an Assignee assuming all of the Tenant's
obligations and entering into an Agreement of Assignment
of Lease prepared by the Landlord at the cost of the
Tenant, which cost shall not be unreasonable in the
circumstances, the tenant shall be released from all
further obligations hereunder.
Nuisance (j) that it will not do or omit or permit to be dome or
omitted upon or about the demised premises anything
which shall be or result in a nuisance or menace to the
Landlord or other any Tenant of the buildings located on
the lands and premises;
Insurance (k) (i) that in the event the Tenant's use and
occupation of the demised premises, whether or not the
Landlord has consented to the same, causes any increase
in premiums for fire and extended coverage insurance,
rental, boiler, casualty and other types of insurance
carried by the Landlord from time to time on the
Building of which the demised premises from a part,
above the rate for the lease hazardous type of occupancy
legally permitted in the demised premises, the Tenant
shall pay the additional premium on the policies
aforementioned caused by reason thereof. The Tenant
shall also pay in such event, any additional premium on
the rent insurance policies that may be carried by the
Landlord for the Landlord's protection against rent lost
through fire or other casualty. If notice of
cancellation shall be given respecting any insurance
policy or any insurance policy on the said buildings or
any part thereof shall be cancelled or refused to be
renewed by an insurer by reason of the use or occupation
of the demised premises by the Tenant, whether or not
the Landlord has consented to such use and occupation,
the Tenant shall forthwith remedy or rectify such use or
occupation upon being requested to do so in writing by
the Landlord, and if the Tenant shall fail to do so
forthwith and before any such insurance is cancelled or
otherwise terminated, the Landlord may, at its option,
determine this lease forthwith by leaving upon the
demised premises notice in writing of its intention to
do so, and thereupon rent and any other payment for
which the Tenant is liable under this lease shall be
apportioned and paid up in full to the date of such
determination of the lease, and the Tenant shall
immediately deliver up vacant possession of the demised
premises to the Landlord;
(ii) in the event that any premiums for fire and
extended coverage insurance and all other types of
insurance carried by the Landlord from time to
time as aforesaid on the building of which the
demised premises form a part, be increased over
the rates established for the first year of the
term of this lease, the Tenant shall pay to the
Landlord the Tenant's proportion of such increase;
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(iii) bills for such additional premiums as
aforementioned shall be rendered by the Landlord
to the Tenant at such times as the Landlord may
elect, and shall be due from and payable by the
Tenant when rendered, and the amount thereof shall
be deemed to be, and paid as, additional rent;
(iv) the Tenant will provide the Landlord with a
certificate of liability insurance covering the
Tenant and the Landlord in respect of the demised
premises and its operations therein to the extend
of not less than $1,000,000 inclusive of all
injuries or death to persons and damage to
property of others arising from any one occurrence
and a certificate of fire and extended coverage
insurance on all improvements made by the Tenant
to the demised premises;
(v) the Tenant shall, at its own expense replace
any plate glass or other glass that has been
broken or removed during the said term or of any
renewal thereof, and will during the said term
keep the plate glass fully insured, pay the
premium such insurance and provide the Landlord
with a certificate of such plate glass insurance;
(vi) all policies of insurance required to be
taken out by the Tenant hereunder and all
certificates thereof required to be furnished to
the Landlord shall provide that the same are not
cancellable by the insurer without fifteen (15)
days prior written notice to the Landlord.
Seizure 7. Provided, and it is hereby expressly agreed:
and
Bankruptcy (a) that, in case, without written consent of the
Landlord, the demised premises shall become and remain
vacant or not used for a period of thirty (30) days
while the same are suitable for use by the Tenant, or if
the demised premises or any part thereof be used by any
other person than the Tenant and approved assignees or
subtenants, or in case the term hereby granted or any of
the goods and chattels of the Tenant shall be at any
time seized or taken in execution or in attachments by
any creditor of the Tenant, or the Tenant shall make any
assignment of the benefit of creditors or give any bill
of sale without complying with the Bulk Sales Act
(Ontario), or become bankrupt or insolvent, or take the
benefit of any act now or hereafter in force for
bankrupt or insolvent debtors or any Order shall be made
for the winding-up or the Tenant, then and in every such
case the then current month's rent and the next ensuing
there (3) months' rent shall immediately become due and
payable, and at the option of the Landlord, this lease
shall cease and determine and the said term shall
immediately become forfeited and void, in which event
the Landlord may re-enter and take possession of the
demised premises as thought the Tenant or any occupant
or occupants of the demised premises was or were holding
over after the expiration of the term without any right
whatever;
Distress (b) that notwithstanding the benefit of any present or
future Statute taking away or limiting the Landlord's
right of distress none of the goods and chattels of the
Tenant on the demised premises at any time during the
said term shall be exempt from levy by distress for rent
in arrears;
Public (c) that save and except for structural defect, the
Liability negligence or wrong doing of the Landlord, its
employees, workmen, agents, contractors or invitees, the
Landlord shall not in any event whatsoever be liable or
responsible in any way for any personal injury or death
that may be suffered or sustained by the Tenant or any
employees of the Tenant or any other person who may be
upon the demised premises or any truckways, platforms or
corridors in connection therewith or the common inside
areas or for any loss or damage or injury to any
property belonging to the Tenant or its employees or to
any other person while such property is on the demised
premises and, in particular, (but without limiting the
generality of the foregoing), the Landlord shall not be
liable for any damage, direct or consequential, to any
such property caused, either directly or indirectly, by
steam, water, rain or snow which may leak into, issue or
flow from any part of the building of which the demised
premises form part or adjoining premises or from the
water, steam, sprinkler or drainage pipes or plumbing
works thereof or from any other place or quarter or for
any damage caused by or attributable to the condition or
arrangement of any electrical or other wiring or for any
damage by anything done or omitted to be done by any
Tenant;
Indemnification (d) The Tenant will indemnify and save harmless the
Of Landlord Landlord from any and all liabilities, fines, suits,
claims, demands, costs and actions of any kind or nature
whatsoever to which the Landlord shall or may become
liable for, or suffer by reason of any breach, violation
or non-performance by the Tenant of
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any covenant, term or provision hereof, or by reason of
any injury, loss, damage or death resulting from,
occasioned to or suffered by any person or persons, or
any property by reason of any act, neglect or default on
the part of the Tenant, or any of its sub-lessees,
agents, customers, employees, contractors, licensee or
invitees, in or about the demised premises or any
truckways, platforms or corridors in connection,
therewith or the common outside areas; such
indemnification in respect of any such breach,
violation, non-performance, damage to property, loss,
injury or death occurring during the term of this Lease
shall survive any termination of this lease, anything in
this lease to the contrary notwithstanding;
Overholding (e) that if the Tenant shall continue to occupy the
demised premises after the expiration of this lease,
with or without the consent of the Landlord, and without
any further written agreement, the Tenant shall be a
monthly Tenant at a monthly rental herein reserved and
otherwise on the terms and conditions herein set forth,
except as to the length of Tenancy;
Overloading (f) that 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 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;
Payments (g) that in the event of the Tenant failing to pay any
Deemed Rent taxes, rates, insurance premiums or other charges which
it has herein covenanted to pay, the Landlord may pay
the same and shall be entitled to charge the sums so
paid to the Tenant who shall pay them forthwith on
demand; and the Landlord, in addition to any other
rights, shall have the same remedies and may take the
same steps for the recovery of all such sums as it might
have and take for the recovery of rent in arrears under
the terms of this lease; all payments required to be
made by the Tenant pursuant to the terms of this lease
shall be deemed rent. All rent in arrears and all
amounts collectible hereunder as if rent in arrears
shall bear interest at an annual rate being five (5)
percentage points above the prime bank lending rate
being charged from time to time by the Chartered Banks
for commercial loans to its best commercial customers,
which shall be charged from the respective due dates of
such amounts until paid; provided that this shall in no
way affect any claim for damages by the Landlord for any
breach or default by the Tenant;
Refuse (h) that the Tenant will keep the demised premises and
every part thereof in a clean and tidy condition and
will not permit waste paper, garbage, ashes or waste, or
objectionable material to accumulate thereon;
Notice of Damage (i) in the event of any substantial damage to the
demised premises or any part thereof or any appurtenance
thereto, including without limitation, damage to the
heating equipment, plumbing system, electrical equipment
or sprinkler system, the Tenant shall forthwith upon
becoming aware of such damage give notice in writing
thereof to the Landlord;
Loading and (j) that all loading and unloading of merchandise,
Unloading supplies, materials, garbage and other chattels shall be
effected only through or by means of such doorways or
corridors as the Landlord shall designate;
Demised (k) whenever in this lease reference is made to the
Premises Defined demised premises, it shall include all structure,
improvements and erections, save and except Tenant's
fixtures and those Tenant's improvements the title to
which has not vested in the Landlord pursuant to
paragraph 16 hereof, in or upon the demised premises or
any part thereof from time to time;
Evidence of (l) the Tenant shall from time to time at the request of
Payments by Tenant the Landlord produce to the Landlord satisfactory
evidence of the due payment by the Tenant of all
payments required to be made by the Tenant under this
lease;
Adjustment Taxes (m) the taxes and local improvement rates in respect of
the first and last calendar years falling within the
term hereof shall be adjusted between the Landlord and
the Tenant;
Expropriation (n) (i) if, at any time during the term hereof a
portion of the common areas and facilities
referred to in this lease or any portion of the
demised premises not covered by buildings or
structures are taken by expropriation or an
easement or right or license in the nature of an
easement over, upon or under a portion of the
lands expropriated, and
9
such taking or expropriation does not materially
affect the Tenant's use or enjoyment of the
demised premises, then the whole of the
compensation awarded or settlement for the lands
so expropriated, whether fixed by agreement or
otherwise, shall be paid to or received by the
Landlord and the Tenant hereby assigns, transfers
and sets over unto the Landlord all the right,
title and interest of the Tenant therein and
thereto, and this lease shall thereafter continue
in effect with respect to the demised premises
without any abatement of rent;
(ii) in the event that any expropriation does
materially affect the Tenant's use or enjoyment of
the demised premises, the whole of the
compensation awarded or settlement, whether fixed
by agreement or otherwise for the said lands so
expropriated, shall nevertheless be paid to or
received by the Landlord, and the Tenant hereby
assigns, transfers and sets over unto the Landlord
all the right, title and interest of the Tenant
therein and thereto but the rent thereafter
payable by the Tenant shall abate accordingly;
(iii) if the landlord and the Tenant shall be
unable to agree, within thirty (30) days after the
amount of compensation, award or settlement as
aforesaid has been fixed, as to whether such
taking or expropriation materially affects the
Tenant's use or enjoyment of the demised premises
or as to the extent to which the rent shall abate,
then the same shall be determined by arbitration
as set out in paragraph 25 hereof;
(iv) in the event that such taking or
expropriation so affects the demised premises as
not to terminate this lease but as to require the
reconstruction or replacement of some portion of
the demised premises, such reconstruction or
replacement shall be carried out at the Landlord's
expense in a good and workmanlike manner and as
expeditiously as reasonably practicable, provided
the cost thereof does not exceed the amount of the
compensation awarded or fixed by agreement or
otherwise;
(v) if the entire demised premises are
expropriated or if so much thereof or of the
appurtenances thereof or such part of the means of
access to and egress from the demised premises
shall be taken that it shall not be practical or
feasible to use the part thereof not taken in the
operation of the Tenant's business, at the rent
and subject to the covenants and conditions of
this lease, this lease shall, upon vesting of
title in the expropriating authority, terminate
and rent, all other payments required to be made
hereunder as additional rent with respect to
periods after the vesting of title in the
expropriating authority shall be refunded and the
whole of the compensation awarded or settlement
whether fixed by agreement or otherwise, for the
said lands and premises or part thereof so
expropriated shall nevertheless be paid to or
received by the Landlord and the Tenant hereby
assigns, transfers and sets over unto the Landlord
all the right, title and interest of the Tenant
therein and thereto.
Removal of
Fixtures 8. Provided all rent due or to become due under the terms of
this lease is fully paid, the Tenant may remove its trade
fixtures and shall make good all damage caused by such
removal; provided further that the Tenant shall not remove or
carry away from the demised premises any building or plumbing,
heating or ventilation plant or equipment or other building
services or improvements.
Re-Entry 9. Proviso for re-entry by the said landlord on non-payment of
rent or non-performance of covenants.
The above powers may be exercised, whether legal demand
for the rent has been made or not. Provided that
notwithstanding anything hereinbefore contained, the
Landlord's right of re-entry hereunder for non-payment of
rent, non-performance of covenant's seizure or forfeiture of
the said term shall become exercisable immediately upon such
default being made. Provided, further, that upon such re-entry
by the Landlord under the term of this paragraph or any other
provision or provisions of this lease, the Landlord may, in
addition to any other remedies to which the Landlord may be
entitled at its option, at any time and from time to time
relet the demised premises or any part or parts thereof for
the account of the Tenant or otherwise and receive and collect
the rents therefor, applying the same first to the payment of
such expenses as the Landlord may have incurred in recovering
possession of the demised premises, including the legal
expenses and solicitor's fees and for putting the same into
good order or condition or preparing or altering the same for
re-rental and all other expenses, commissions and charges
paid, assumed or incurred by the Landlord in or about
reletting the premises
10
and then to the fulfillment of the covenants of the Tenant
hereunder. Any such reletting herein provided for may be for
the remainder of the term as originally granted or for a
longer or shorter period. In any such case and whether or not
the demised premises or any part thereof be relet the Tenant
shall pay to the Landlord the rental hereby reserved and all
other sums required to be paid by the Tenant up to the time of
the termination of this lease or of recovery of possession of
the demised premises by the Landlord, as the case may be, and
if required by the Landlord thereafter the Tenant shall pay to
the Landlord until the end of the term of this lease the
equivalent of the amount of all the rentals hereby reserved
and all other sums required to be paid by the Tenant
hereunder, less the net avails of reletting, if any, and upon
each of the days herein provided for payment of rental, the
Tenant shall pay to the Landlord the amount of the deficiency
then existing.
Net Lease 10. It is the intention of this lease that, save as expressly
herein provided, the said rentals herein provided to be paid
shall be net and without set-off to the Landlord and clear of
all taxes, except the Landlord's income taxes, costs and
charges arising from or relating to the demised premises and,
save as aforesaid, that the Tenant shall pay all charges,
impositions, expenses of every nature and kind relating to the
demised premises and the Tenant covenants with the Landlord
accordingly.
Quiet Enjoyment 11. The Landlord covenants with the Tenant for quiet
enjoyment.
Snow Removal 12. The Landlord shall maintain and keep in good repair the
common outside areas and the landscaped areas and shall
provide reasonably adequate snow clearance of the parking
areas and of the entrances and exits to and from the demised
premises and the said parking areas.
Inspection 13. Provided that during the term hereof any person or persons
may inspect the demised Premises and all parts thereof at all
reasonable times, in producing a written order to that effect
signed by the Landlord or its agents.
Removal of 14. Provided that in case of removal by the Tenant of the good
Goods and chattels of the Tenant from off the demised premises, the
Landlord may follow the same for thirty (30) days in the same
manner as is provided for in the Landlord and Tenant Act.
Notices for 15. Provided that the Landlord shall have the right during the
Sale or to Let term of this lease to place upon the demised premises a notice
stating that the demised premises are for sale and shall,
within three (3) months from the termination of the said term,
have the right to place upon the demised premises a notice
stating that the demised premises are for Rent; and further
provided that the Tenant will not remove such notice or permit
the same to be removed.
Improvements 16. Any alterations, erections or improvements, save and
except Tenant's trade fixtures placed or erected upon the
demised premises, shall become a part thereof and shall not be
removed and shall be subject to all the provisions of this
lease. No alteration, erection or improvement shall be made or
erected upon the demised Premises without the written prior
consent of the Landlord. All improvements made to the demised
premises by the Tenant shall become part of the demised
premises and title therein shall vest in the Landlord on the
termination of this lease or, if the term of this lease is
renewed or extended, upon the termination of the original term
hereof.
Fire 17. Provided, and it is hereby expressly agree, that if and
whenever during the term hereof the building of which the
demised premises form a part shall be destroyed or damaged by
fire, lightning or tempest, or any of the perils normally
insured against under the provisions of standard extended
coverage fire insurance policies, then, and in every such
event:
(a) if the damage or destruction is such that in the
opinion of the Landlord, seventy five percent (75%) or
more of the building of which the demised premises form
a part is rendered wholly unfit for occupancy or
impossible or unsafe for use and occupancy, the Landlord
may, at its option to be exercised within twenty (20)
days of the happening of such damage or destruction,
terminate this lease by giving to the Tenant notice in
writing of its opinion and of such termination, in which
event, this lease and the term hereby demised shall
cease and be at any end as of the date of such
destruction or damage, and the rent and all other
payments for which the Tenant is liable under the terms
of this lease shall be apportioned and paid in full to
the date of such destruction or damage. Failing exercise
by the Landlord of the said option to terminate this
lease, the Landlord shall, as soon as circumstances
reasonably permit, commence to repair or rebuild the
demised premises and or the said buildings and rent
shall abate until repairs arc complete.
11
(b) if the damage or destruction is such that in the
opinion of the Landlord, the portion of the said
buildings hereby demised is rendered wholly unfit for
occupancy or it is impossible or unsafe to use or occupy
it and if, in either event the damage, in the written
opinion of the Landlord to be given to the Tenant within
twenty (20) days of the happening of such damage or
destruction, cannot be repaired with reasonable
diligence within one hundred and twenty (120) days from
the happening of such damage or destruction, then either
the Landlord or the Tenant may, within five (5) days
next succeeding the giving of the Landlord or the Tenant
may, within five (5) days next succeeding the giving of
the Landlord's opinion as aforesaid, terminate this
lease by giving to the other notice in writing of such
termination, in which event this lease and the term
hereby demised shall cease and be at an end as of the
date of such destruction or damage and the rent and all
other payments for which the Tenant is liable under the
terms of this lease shall be apportioned and paid in
full to the date of such destruction or damage; if the
Landlord does not, within the time limited, give its
written opinion to the Tenant that the damage or
destruction cannot be so repaired within such one
hundred and twenty (120) day period or if neither the
Landlord nor the Tenant so terminate this lease, then
the Landlord shall repair the said building with all
reasonable speed and the rent hereby reserved shall
abate from the date of the happening of the damage until
the damage shall be made good to the extent of enabling
the Tenant to use and occupy the demised premises;
(c) if the damage or destruction be such that, in the
opinion of the Landlord, the portion of the building
hereby demised is wholly unfit for occupancy, or if it
is impossible or unsafe to use or occupy it but if in
either event the damage, in the written opinion of the
Landlord, to be given to the Tenant within twenty (20)
days from the happening of such damage or destruction,
can be repaired with reasonable diligence within one
hundred and twenty (120) days from the happening of such
damage, or if the Landlord gives no such written opinion
to the Tenant, then the rent hereby reserved shall abate
from the date of the happening of such damage until the
damage shall be made good to the extent of enabling the
Tenant to use and occupy the demised premises and the
Landlord shall repair the damage with all reasonable
speed;
(d) if in the opinion of the Landlord the damage can be
made good as aforesaid within one hundred and twenty
(120) days of the happening of such destruction or
damage and the damage is such that the portion of the
building demised is capable of being partially used for
the purposes for which it is hereby demised, then until
such damage has been repaired, the rent shall abate in
the proportion that the area of the demised premises so
rendered unfit for occupancy bears to the whole of the
demised premises and the Landlord shall repair the
damage with all reasonable speed.
Assignment by 18. The Landlord may assign its rights under this lease to a
Landlord Lending Institution as collateral security for a loan to the
Landlord and in the event that such an assignment is given and
executed by the Landlord and notification thereof is given to
the Tenant by or on behalf of the Landlord, it is expressly
agreed between the Landlord and the Tenant that this lease
shall not be cancelled, or modified for any reason whatsoever
except as provided for, anticipated or permitted by the terms
of this lease or by law, without the consent in writing of
such Lending Institution.
The Tenant covenants and agrees with the Landlord that
it will, if and whenever reasonably required by the Landlord
and at the Landlord's expense, consent to and become a party
to any instrument relating to this lease which may be required
by or on behalf of any purchase, bank or mortgagee from time
to time of the demised premises; provided always that the
rights of the Tenant as herein set out be not altered or
varied by the terms of such instrument or document and that
such instrument or document expressly so state.
Limitation of 19. The term "Landlord" as used in this lease so far as
Landlord's covenants or obligations on the part of the Landlord are
Liability concerned, shall be limited to mean and include only the owner
or owners at the time in question of the demised premises, and
in the event of any transfer or transfers of ownership, the
Landlord herein named, and in case of any subsequent transfer
or conveyances, the then vendor or transferor, shall be
automatically freed and relieved from and after the date of
such transfer or conveyance, of all liability as respects the
prformance of any convenants or obligations on the part of the
Landlord contained in the lease thereafter to be performed,
provided that:
(a) any funds in the hands of such Landlord or the then
vendor or transferor at the time of such transfer, in
which the Tenant has an interest, shall be turned over
to the purchaser or transferee and any amount then due
and payable to the Tenant by the Landlord or the then
vendor or transferor under any provision of this lease,
shall be paid to the Tenant; and
12
(b) upon any such transfer, the purchaser or transferee
shall be deemed it have assumed, subject to the
limitations of this paragraph, all of the terms
covenants and conditions in this lease contained to be
performed on the part of the Landlord;
it being intended hereby that the covenants and obligations
contained in this lease on the part of the Landlord shall,
subject as aforesaid, be binding on the Landlord, its
successors and assigns, only during and in respect of their
respective successive periods of ownership.
Waiver of 20. The failure of the Landlord to insist upon a strict
Breach performance of any of the agreements, terms, covenants, and
conditions hereof shall not be deemed a waiver of any rights
or remedies that the Landlord may have and shall not be deemed
a waiver of any subsequent breach or default in any of such
agreements, terms, covenants and conditions.
Notices 21. Any notice, request or demand herein provided for or given
hereunder, if given by Tenant to the Landlord shall be
sufficiently given if mailed by registered mail, addressed to
the Landlord.
Any notice herein provided for or given hereunder if
given by the Landlord to the Tenant shall be sufficiently
given if mailed as aforesaid addressed to the Tenant.
Any notice mailed as aforesaid shall be conclusively
deemed to have been given on the third business day following
the day on which such notice is mailed as aforesaid, either
the Landlord, or the Tenant may at any time, give notice in
writing to the other or others of any change of address of the
party giving such notice. From and after the giving of such
notice, the address therein specified shall be deemed to be
the address of such party for the giving of such notices
thereafter.
Lease 22. Provided that this lease and everything herein contained
Subordinate shall be deemed to be subordinate to any charge or charges
from time to time created by the Landlord with respect to the
building of which the demised premises form part, by way of
mortgage, and the Tenant hereby covenants and agrees that it
will promptly, at any time and from time to time, as required
by the Landlord during the term hereof, execute all documents
and give all further assurances to this proviso as may be
reasonably required to effectuate the postponement of its
rights and privileges hereunder to the holder or holders of
such charge or charges; provided, however, that no such
subordination by the Tenant shall have the effect of
permitting the holder or holders of any mortgage or lien or
other security, to disturb the occupation and possession by
the Tenant of the demised premises, so long as the Tenant
shall perform all of the terms, covenants, conditions,
agreements and provisos contained in this Lease.
Liens 23. If any Mechanics' or other liens or Order for the payment
of money shall be filed against the demised premises by
reason, or arising out of any labour or material, work or
service furnished to the Tenant or to anyone claiming through
the Tenant, the Tenant shall, within fifteen (15) days after
notice to the Tenant of the filing thereof, cause the the same
to be discharged by bonding, depostit, payment, Court Corder
or otherwise. The Tenant shall defend all suits to enforce
such lien or Order whether against the Tenant or the Landlord
at the Tenant's own expense. The Tenant hereby indemnifies the
Landlord against any expense or damage as a result of such
lien or Order.
Force 24. It is understood and agreed that whenever and to the
Majeure extent that either party shall be unable to fulfil or shall be
delayed or restricted in the fulfilment of any obligation
hereunder in respect of the supply or provision of any service
or utility or the doing of 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 fulfil
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 of Direction of any
Administrator, Comptroller, Board, Governmental Department or
Officer, or other authority, or by reason of any other cause
beyond its control, whether of the foregoing character or not,
that party shall be relieved from the fulfillment of such
obligation and neither party shall be entitled to compensation
for any inconvenience, nuisance or discomfort thereby
occasioned.
Arbitration 25. Disputes arising under paragraph 7 (n) hereof shall be
determined by a single Arbitrator if the parties can agree on
one within seven (7) days after the submission to Arbitration.
If the parties cannot agree on a single arbitrator within such
seven (7) day period, the dispute shall be determined by the
award of three (3) arbitrators or a majority of them, one to
be named by the Landlord and one by the Tenant no later than
seven (7) days after the expiration of such first seven (7)
day period and two (2) Arbitrators so chosen shall forthwith
select a third and their award or the award by a majority of
them shall be final and binding. If either landlord or Tenant
shall fail to
13
appoint its arbitrator within second seven (7) day period, the
single arbitrator appointed by the other party shall proceed
with the arbitration and the award of such single Arbitrator
shall be final and binding. If the two (2) arbitrators
appointed by the Landlord and the Tenant cannot agree in the
choice of a third arbitrator within seven (7) days of the
appointment of the latter of the first two (2) arbitrators,
such third arbitrator shall be appointed by a Judge of the
Supreme Court of Ontario.
Grammar 26. Words importing the singular number only shall include the
plural and vice-versa, and words importing the masculine
gender shall include the feminine gender and words importing
persons shall include firms and corporations and vice-versa.
Marginal 27. The marginal notes contained herein are inserted for the
Notes sake of convenience and reference only and do not form a part
of this lease.
Binding 28. This indenture and everything herein contained shall
Nature extend to and bind and enure to the benefit of the respective
heirs, executors, administrators, successors and assigns, as
the case may be, of each and every of the parties hereto,
subject to the consent of the Landlord being obtained, as
hereinbefore provided, to any assignment or sublease by Tenant
and, where there is more than one Landlord or Tenant or where
the Landlord or Tenant is male, female or a corporation, the
provisions herein shall be read with all grammatical changes
thereby rendered necessary. All covenants herein contained
shall be deemed joint and several and all rights and powers
reserved to Landlord may be exercised by either Landlord or
its agent or representatives.
Renewal 29. The Tenant, provided it is not in default hereunder of any
Option covenant or condition in in its lease at the time of giving
notice exercising its right to renew and provided it has duly
and on time throughout the initial term of the lease observed
and performed the covenants and conditions therein contained
and all payments of rent and additional rent have been paid in
full and on time shall be entitled to renew this lease for
further term of five (5) years from and after the expiration
of the term hereof, and the option may be exercised by the
tenant forwarding written notice to the Landlord no sooner
than six (6) months but no later than three (3) months prior
to the expiration of the term hereof. All of the terms and
conditions of this lease shall apply to the renewal of the
term hereof, save that:
(a) The rent for the renewal term shall be mutually
agreeed between the parties within two (2) months prior
to expiration of the term thereof, failing which the
question of quantum of rent shall be determined by
binding arbitration and it shall be a condition of such
submission to arbitration that:
(i) the rent for the renewal term shall not be
less than the rent for the term hereof; and
(ii) in making their award the arbitrator or
arbitrators shall have regard to the current real
estate market conditions as they affect rent for
premises similar to the demised premises,
including all improvements thereto, in the
municipality in which the demised premises are
located or in the nearest municipality in which
similar premises are located and the length of the
renewal term.
(b) The provisions of paragraph 25 of this lease shall
apply to arbitration under this clause.
Right to First Provided that the Tenant has not been in breach of its
Refusal to Lease covenants and obligations under the lease, the Landlord hereby
Adjoining Space grants to the Tenant the right of first refusal, during the
term or any renewal thereofany space known as 295 Evans Avenue
that may become available to be leased on the terms and
conditions of a bona fide offer to lease that is acceptable to
the Landlord. The Landlord agrees to deliver a true copy of
any such bona fide offer to the Tenant. The Tenant shall have
three (3) days from such delivery within which to exercise the
right of first refusal to lease adjoining space. This right
may only be exercised within such time by the Tenant
delivering a notice in writing of its acceptance to the
Landlord, whereupon a binding agreement to lease such premises
shall exist between the Landlord and the Tenant on the terms
and conditions contained in the said bona fide offer.
If the Tenant shall not so exercise this right of first
refussal to lease the said premises, the said premises may
thereafter be leassed by the Landlord to the party identified
in the said bona fide offer and subject to the terms and
conditions therein, but not otherwise, and failing leasing as
aforesaid, the provisions of this section shall apply again
the tenant shall not have the right to assign this right of
first refusal to lease space known as 295 Evans Avenue except
in conjunction with a permitted assignment of all its rights
under this lease.
14
Binding There are no representations or terms of agreement between the
parties, save as expressed herein and there shall be no
amendment to these terms save as may be agreed to in writing
between the parties.
IN WITNESS WHEREOF the parties hereto have executed these presents.
SIGNED, SEALED AND
DELIVERED
in the presence of: COMWEST PROPERTIES LIMITED
----------------------------------------
Landlord: I have authority to bind the
corporation
VISIBLE GENETICS INC.
----------------------------------------
Tenant: I have authority to bind the
corporation
16
SCHEDULE "A"
Square Footage:
10,500 square feet approximately
Term:
5 years
Base Rent:
$5.95 per square foot, for a total of $62,475.00 per annum payable in equal
consecutive monthly installments of $5,206.25 on the first day of each and every
month of the term.
Estimated CAM and Realty Tax Costs:
$3.05 per square foot for a total of $36,750.00 per annum payable in equal
consecutive monthly installments of $3,062.50 on the first day of each and every
month of the term.
Total monthly rent has been calculated as follows:
$5,206.25 Base Rent
306.25 CAM
2,362.50 Property Tax
- - ---------
7,875.00 Subtotal
551.25 GST
- - ---------
$8,426.25 TOTAL
Commencement Date:
September 1, 1998