Exhibit
10.23
TECHNICAL ENTERPRISE
FACILITY 3 SUB-LEASE
ARTICLE 1. - BASIC
TERMS
1.1
The Basic Terms of the
Sub-Lease are:
(a)
Landlord:
DISCOVERY PARKS
TRUST
(b)
Landlord's
address:
750 - 1333 WEST
BROADWAY
VANCOUVER, B.C. V6H
4C1
(c)
Tenant:
CHEMOKINE THERAPEUTICS
(B.C.) CORP.
(d)
Tenant's
address:
204, 2386 EAST MALL,
VANCOUVER, B.C.
(e)
Covenantor:
(f)
Covenantor's
address:
Premises:
(g)
Rentable Area of
Premises: The
rentable area of the Premises is 3,610 sq.ft. and has been
confirmed by the Landlord’s surveyor in accordance with
BOMA standards for office premises.
(h)
Term:
Three
(3) years and four (4) months commencing on the Commencement
Date
(i)
Commencement Date:
April
1, 2005, subject to the provisions of Article 4;
(j)
Fixturing Period:
The Tenant shall be allowed to
occupy the Premises at any time prior to the Commencement Date for
the purposes of completing its Tenant Fixturing but not before the
time that the Sub-Lease has been executed by the Tenant. Such
occupancy shall be free of Basic Rent, Operating Costs and Taxes,
except that the Tenant shall be required to pay any incremental
costs to the Landlord as a consequence of such occupancy
.
(k)
Basic
Rent:
Lease Year
PSF Per Annum
Per Annum
Per Month
Years 1 –
3.33
$19.25
$69,492.50
$5,791.04
(l)
Notwithstanding the
foregoing the Tenant shall not be required to pay Basic Rent for
the 1 st , 2 nd , 13 th ,
and 25 th months of the Term.
(m)
Research Activity:
The premises shall be used for the
purposes of offices ancillary to their life sciences
research.
(n)
Parking Permits: The Tenant shall have the option to rent from the
Landlord 4 parking stalls at the prevailing rates set by the
Landlord from time to time. The Tenant shall exercise such
option prior to the Commencement Date of the Sublease. If the
Tenant does not exercise such option to rent the parking stalls
prior to the Commencement Date, the Landlord shall be under no
further obligation to rent any parking stalls to the Tenant during
the Term of the Sublease. Parking rates shall be subject to
applicable goods and services taxes and to annual adjustments
during the Term based upon prevailing market rates.
In addition, the Tenant
shall have the option to acquire up to 11 parking permits at the
Commencement Date of the Term, subject to the payment of the fees
and the terms of issuance of such permits by The University of
British Columbia.
(o)
Deposit:
$16,327.29 being the first and last
months estimated gross rent, including GST.
(p)
Landlord's
Work: The
Landlord's Work is that work to complete the base building and to
fixture the Premises as described in Schedule A hereto.
(q)
Costs of Changes to
Landlord's Work:
subject to change
when the actual amounts are determined as provided in clause
10.1.
(r)
Renewal
Term:
Option
to Renew for a term of 3 years (the “Renewal
Term”)
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The Parties, in
consideration of the covenants and agreements in this Sub-Lease
contained, covenant and agree each with the other that the Basic
Terms, Standard Provisions and schedules attached hereto shall form
the Sub-Lease, and the Parties shall be bound by the same.
Each reference in the Sub-Lease to any of the Basic Terms
shall be construed to include the provisions set forth in Article 1
as well as all of the Standard Provisions where the Basic Terms are
more fully set forth.
IN WITNESS WHEREOF the
Landlord and the Tenant have executed this Sub-Lease as of the
day of
, 2005
Landlord:
Tenant:
DISCOVERY
PARKS
CHEMOKINE
THERAPEUTICS
TRUST
B.C.
CORP.
___________________________
_________________________________
Authorized
Signatory
Authorized
Signatory
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STANDARD
PROVISIONS
ARTICLE 2. -
DEFINITIONS
2.1
In this
Sub-Lease:
(a)
"Activities" means the
Research Activities as defined in this Sub-Lease carried on by the
Tenant or any subtenant or occupant on or about the Premises or the
Lands and includes all acts, processes and operations comprised in
those activities and all other acts and operations of the Tenant or
any subtenant or occupant performed or carried on by any of them on
or about the Premises or the Lands;
(b)
"Additional Pollution"
means Pollution of the Lands or Building as disclosed by a Further
Audit and which is not Existing Pollution or the result of the
migration of Pollution onto the Lands or Building;
(c)
"Affiliate" has the
meaning ascribed to it in the Company Act of British
Columbia;
(d)
"Article" means an
Article in this Sub-Lease and includes all clauses
therein;
(e)
"Audit" means the
environmental investigation of the Lands and Building performed
Pacific Environmental Consultants and dated September 18,
2001;
(f)
"Authority" means any
government agency, body, corporation, organization, department or
authority responsible for administering or enforcing any
Law;
(g)
"Basic Terms" means the
terms as described in Article 1, clause 1.1 of this
Sub-Lease;
(h)
"Building" means the
building situate on the Lands within which the Premises are located
and all improvements thereto;
(i)
"Business Days" mean
Monday to Friday inclusive in each week, save and except any such
day that shall be declared a statutory holiday in British
Columbia;
(j)
"Campus" means the lands
and premises situate west of the Point Grey District of Vancouver,
British Columbia and shown in heavy outline in Schedule B attached
hereto and forming part hereof;
(k)
"Commencement Date of
Term" means that date as specified in the Basic Terms, but subject
to the provisions of Article 4 herein;
(l)
"Common Areas and
Facilities" means those areas and facilities of the Lands and/or
the Building that are designated by the Landlord as common areas
and facilities, which designation may be changed by the Landlord
from time to time, including but not limited to the electrical,
mechanical, heating, ventilating, air-conditioning, plumbing and
drainage systems, the roof, exterior walls and entrances, canopies,
elevator, lighting, fire prevention, security and installations and
any enclosures therefor;
(m)
"Complementary
Facilities" means facilities on the Campus such as roadways,
parking areas and other improvements which are to be used in
connection with the operations of the Tenant and others;
(n)
"Consultant" means any
qualified environmental consultant designated in writing by the
Landlord;
(o)
"Development Guidelines"
means those guidelines identified from time to time as such by the
Head Landlord for the orderly development and operation of
buildings on the Campus or any improvements thereon;
(p)
"Easement Area" means
those areas shown in heavy outline and in heavy outline and cross
hatched on plan LMP44331 deposited in the Vancouver Land Title
Office on December 9, 1999, comprising 1.465 ha., more or
less;
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(q)
"Environment" has the
meaning given to it in the Canadian Environment Protection Act
(Canada) from time to time;
(r)
"Exclusive Supplier"
means a manufacturer and/or supplier of products or services with
whom the Head Landlord has entered into a Strategic Alliance for
the exclusive advertising, supply and sale of that manufacturer's
or supplier's products and/or services throughout the
Campus;
(s)
"Existing Pollution"
means the Pollution of the Lands or Building, if any, disclosed by
the Audit;
(t)
"Further Audit" means an
environmental audit of the Lands and Building performed by the
Consultant on behalf of the Landlord or the Head Landlord to
determine the existence, nature and extent of any Additional
Pollution and to determine what Remedial Action if any is necessary
with respect to any Additional Pollution and to determine the cost
of remediating that Additional Pollution;
(u)
"Head Landlord" means
The University of British Columbia;
(v)
"Head Lease" means the
lease of the Lands between the Head Landlord as landlord and the
Landlord as tenant and dated for reference May 1,2001, and
registered in the Vancouver Land Title Office under number
, a copy of which is available at the
office of the Landlord for the review of the Tenant;
(w)
"Landlord's Work" means
work to be carried out and completed by the Landlord as described
in the Basic Terms;
(x)
"Lands" means those
lands forming part of the Campus 1999 situate at Esat Mall and
Agronomy Road on the Campus comprising 0.2425 ha. more or less and
shown in heavy outline and dotted on Reference Plan
deposited in the Vancouver Land Title
Office on The entire parcel of
which the Lands form a part is legally described as:
Vancouver Assessment
Area
Parcel Identifier
015-940-357
District Lot
4805
Except portions in plan
9301 and
Statutory Right of Way
plan 20570
Group 1 New Westminster
District;
(y)
"Law" means any Federal,
Provincial, Municipal and other governmental laws and regulations
relating to protection of the environment or its Pollution
including without limitation, the Canadian Environmental
Protection Act (Canada) and the Waste Management Act
(British Columbia) and the regulations made under them and includes
any amendment, revision, re-enactment or replacement of any such
Law, regulation or by-law;
(z)
"Lease Year" means after
the reference date of this Sub-Lease, the 12 month period
commencing on January 1 and ending on December 31 during each year
of the Term, provided that the first Lease Year shall commence on
the Commencement Date set out in Article 4 and end on the last day
of the following December and the last Lease Year shall end on the
last day of the Term and commence on the preceding first day of
January;
(aa)
"Main Campus Plan" means
The University of British Columbia Main Campus Plan 1992 as adopted
by the UBC Board of Governors and as amended up to the date of the
Head Lease;
(bb)
"Medium" means any land,
water or air and includes the Lands, Building and
Premises;
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(cc)
"Normal Business Hours"
means the hours on Business Days from 8:00 a.m. to 6:00
p.m.;
(dd)
"Notice of
Non-Compliance" means any written notice, requisition, requirement
or order made by an authority having jurisdiction under any Law
relating to the Lands or Building, Pollution of the Lands or
Building or the Activities;
(ee)
"Occupancy" means the
Premises are substantially ready for occupancy by the Tenant to
carry on its permitted uses under this Sub-Lease, regardless of
whether the Tenant actually occupies the Premises;
(ff)
"Operating Expenses"
means the total of the Landlord's costs and expenses for any period
of every kind and nature incurred in connection with the
management, operation, maintenance, repair and replacement of the
Lands and Building and every part thereof, such costs and expenses
to include without limitation and without duplication of
expense:
(i)
The total annual cost
incurred by the Landlord of insuring the Head Landlord, the
Landlord, the Lands, the Building, and the improvements and
equipment and other property in the Building and facilities of the
Building against property damage, rental loss, general liability
and such other perils as the Landlord or Head Landlord may require,
acting reasonably, from time to time, in such manner, with such
companies and firms, with such coverage and in such amounts as the
Landlord, or its mortgagees or the Head Landlord may, from time to
time, determine;
(ii)
costs of janitorial,
security services and devices and patrols, cleaning, snow and ice
removal, garbage and waste collection and disposal, operating and
maintaining supply loading and receiving areas and truck
docks;
(iii)
costs of lighting,
(including ballasts, starters and tubes but excluding specialty
lighting installed by or for tenants) electricity, telephone, gas,
steam, hot and cold water, and all other utilities, loud-speakers,
public address and musical broadcasting systems, fire prevention
and alarm systems and the cost of any signs;
(iv)
salaries and wages of
all personnel including supervisory personnel and head office
personnel who perform duties with respect to the Lands and Building
and the operations of the Landlord with respect to the Lands and
Building, including contributions towards usual fringe benefits,
unemployment insurance, pension plan contributions and similar
contributions, provided that if the personnel are employed in
performing duties for properties in addition to the Lands and
Building, then such part of the salaries and wages and other costs
as are attributable to the work done on other properties shall not
be included in Operating Expenses;
(v)
the rental and cost of
acquisition, provision, operation, maintenance, repairs and
replacement of any equipment including telephone entry systems,
security devices and services;
(vi)
the cost of building
supplies used by the Landlord in the cleaning and maintenance of
the Lands and Building and the costs of employee uniforms and
drycleaning;
(vii)
heating,
air-conditioning and ventilation costs for the Building;
(viii)
service contracts with
independent contractors for goods and services supplied to the
Lands and Building;
(ix)
repair and replacements
(except where the cost of any such replacements are directly
attributable to inherent structural defects) to and maintenance,
decoration and operation of the Lands and surrounding areas and
Building including all fixtures, the cost of gardening and
landscaping maintenance and any grade level improvements and
equipment;
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(x)
depreciation and
interest costs with respect to machinery, equipment, systems,
property or facilities installed in or used in connection with the
Lands or Building;
(xi)
energy saving expenses
for the Building;
(xii)
engineering, accounting,
legal and other consulting and professional services, including the
cost of preparing statements of Operating Expenses;
(xiii)
a fee for the management
of the Lands and the Building incurred by the Landlord with third
party managers, or if the Landlord manages the Building, 4% of the
total rent for the Building, calculated as if the Building was
fully leased at market terms and occupied;
(xiv)
all costs payable by the
Landlord pursuant to the Head Lease, including without limitation
and without duplication, the Service Levy and all charges by the
Head Landlord under the Head Lease except the Minimum Rent and Net
Rent as defined in the Head Lease;
(xv)
all other property
management costs, expenses and outlays incurred by the Landlord
with respect to the Lands and the Building, the supply of office
space and services attributable to the Lands and Building and the
operation and management thereof;
and there shall be
deducted from such costs and expenses to the extent the same have
been included in costs and expenses:
(xvi)
amounts directly
chargeable (as distinguished from shared costs) by the Landlord to
the Tenant hereunder or which would be similarly directly
chargeable to another tenant as otherwise provided herein or in
such tenant's lease, and amounts for marketing, commissions for
leasing premises and expenditures for tenant
inducements;
(xvii)
costs for which the
Landlord is reimbursed by the proceeds of insurance claims to the
extent of such reimbursement.
If the Building is not
100% completed or occupied during the whole of any period for which
Operating Expenses are being calculated, the Operating Expenses
shall be calculated by including such additional costs as would
have been incurred if the Building had been 100% completed and
occupied during such period, as reasonably determined by the
Landlord;
(gg)
"Parties" shall mean the
parties to this Sub-Lease;
(hh)
"Person" includes a
person, firm, corporation, partnership, group of persons, or any
combination of them, and the personal or other legal
representatives of such person to whom the context can apply at
law;
(ii)
"Pollute" is a verb
which means to Release into or unto any Medium any Substance
that:
(i)
alters the physical,
biological or chemical nature of that Medium,
(ii)
alters the capacity of
the Medium to support any living thing whether animal or plant
life,
(iii)
injures or is capable of
injuring the health or safety of a person in or near the
Medium,
(iv)
injures or is capable of
injuring property or any life form in or near the
Medium,
(v)
interferes with or is
capable of interfering with visibility or the dispersion of light
or any photochemical activity within the Medium,
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(vi)
interferes with or is
capable of interfering with normal conduct of business in, on, near
or from the Medium,
(vii)
causes or is capable of
causing physical discomfort to a person in, on or near the
Medium,
(viii)
damages or is capable of
damaging the Environment, or
(ix)
is Special
Waste,
and such Release is
prohibited, regulated, controlled or licensed under any Law and
"Polluted" is an adjective and "Pollution" and "Pollutant" are
nouns which have meanings that correspond to the meaning contained
in this clause.
(jj)
"Premises" means the
portion of the Building hereby leased to the Tenant designated as
"Premises" on the sketch attached hereto as Schedule "C". The
Landlord may make variations to the boundaries of the Premises from
those shown on Schedule C provided that the variations do not
materially adversely affect the use of the Premises for the purpose
provided herein;
(kk)
"Prime Rate" means the
rate of interest per annum (regardless of how or when calculated)
designated from time to time by the Landlord's principal banker
(the "Bank") as being the prime commercial lending rate (now
commonly known as the Bank's prime rate) charged by the Bank for
demand loans in Canadian funds made at the main branch of the Bank
in Vancouver, British Columbia, and if at any time there is more
than one prime commercial lending rate of the Bank then the Prime
Rate shall be the highest prime commercial lending rate of the
Bank;
(ll)
"Release" includes
release, store, manufacture treat, generate, transport, spill,
leak, pump, pour, dump, abandon, emit, empty, discharge, spray,
inoculate, deposit, seep, throw, place, exhaust, inject, escape,
leach, dispose, infuse or introduce;
(mm)
"Remedial Action" means
any act, measure, work or thing done, taken, carried out, acquired
or constructed that is or may be reasonably necessary to
investigate, assess, control, abate, dissipate, render harmless,
mitigate or remove Pollution in accordance with the requirements of
any Authority having jurisdiction over a Pollutant;
(nn)
"Rent" means the Rent
set out in clause 5.1 and all other money payable by the Tenant
under this Sub-Lease whether or not designated as "Rent", excluding
goods and services taxes payable by the Tenant;
(oo)
"Rentable Area" means an
area which, in the case of the Building, shall be calculated as if
the entire Building were let to tenants occupying whole floors; in
the case of premises occupying a whole floor, shall include the
area occupied, measured from the interior glass line of exterior
glazing and shall include elevator lobbies, washrooms, electric and
communication closets, janitor's closets, flues, wet stacks,
venting and ducting shafts, vertical ducts and the walls enclosing
them and other closets within and exclusively serving that floor,
and a portion of electrical and other equipment rooms in the
Building, main lobbies and meeting rooms available in the Building
for the use of tenants as determined by the Landlord, acting
reasonably; in the case of premises occupying less than a whole
floor, shall include the area occupied measured from the interior
glass line of exterior glazing to the office side of corridor walls
and to the centre of partitions separating the premises from
adjoining premises, to which shall be added a portion as determined
by the Landlord, acting reasonably so as to provide for the Basic
Rent payable as if whole floors were rented, of the area of the
corridors, elevator lobbies, washrooms, electric and communication
closets, janitor's closets, flues, wet stacks, shafts, vertical
ducts and the walls enclosing them, other closets within and
exclusively serving that floor, electrical and other equipment
rooms in the Building, main lobbies and meeting rooms in the
Building for the use of tenants; but Rentable Area shall not
include pipe shafts for the air handling unit, stairs (unless
installed for the exclusive benefit of a tenant), or elevator
shafts; and no deductions shall be made for vestibules inside the
Building line or for columns and projections necessary to the
Building;
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(pp)
"Research Activity"
means the carrying on or application of scientific and
technological research and development as described in the Basic
Terms in cooperation with governments, business and industry,
foundations, universities and other educational institutions in the
application of science and technology for the development of
industry in British Columbia and shall, subject to the other terms
of this Sub-Lease, include the right of the Tenant to develop and
construct prototypes of goods or products, for the purpose of
further research, development and testing as part of the carrying
on of the Research Activity. In the process of developing the
scientific and technological research and development, certain
goods and products may be offered for sale;
(qq)
"Sales Taxes" means any
and all taxes, fees, charges, assessments, rates, levies, duties
and excises (whether characterized as sales taxes, purchase taxes,
value added taxes, goods and services taxes or any other form of
tax) which are imposed on the Tenant or the Landlord or for which
the Landlord or Tenant is obliged to pay, or to collect from the
Tenant, and which are levied, rated or assessed on the act of
entering into this Sub-Lease or otherwise on account of this
Sub-Lease, on the use or the occupancy of the Lands and Building or
any portion of the Lands and Building, on the Rent payable under
this Sub-Lease or any portion of the Rent or in connection with the
business of renting the Lands or Building or any portion thereof
and include all such taxes, fees, charges, assessments, rates,
levies, duties and excises with respect to:
(i)
any or all amounts paid
or payable by the Landlord for goods and services, repairs,
maintenance, real estate taxes, insurance, and all other outlays
and expenditures (including capital expenditures) for and in
connections with the Lands and the Building, including without
limiting the generality of the foregoing, repairs, maintenance and
replacements in respect of the Building;
(ii)
any or all amounts paid
or payable by the Tenant pursuant to this Sub-Lease, including
Rents; and
(iii)
this Sub-Lease or
services or goods supplied or provided or deemed to have been
supplied or provided by the Landlord or which the Landlord is
deemed responsible to provide in accordance with the terms of this
Sub-Lease or the consideration for such goods and
services,
whether in each case
characterized as goods and services tax, sales tax, multi-stage
sales tax, value added tax, consumption tax or any other tax, levy,
duty or assessment. Provided however, Sales Taxes shall
exclude income tax under Part I of the Income Tax Act of Canada,
the Tenant's Taxes and the Taxes;
(rr)
"Service Levy" means the
charge levied by the Head Landlord against the Landlord for the use
of certain services, sometimes provided by municipalities or other
public authorities and for the use of the Complementary Facilities
both of which are provided by the Head Landlord to all tenants
located on the Campus;
(ss)
"Special Waste" has the
meaning given to it in the Waste Management Act (British
Columbia) but if the Waste Management Act (British Columbia)
is repealed, "Special Waste" has the meaning given to it on the day
immediately proceeding the repeal of that Act or if that Act is
amended so that the term "Special Waste" is no longer used in it
then "Special Waste" has the same meaning as the term which
replaces it in that Act;
(tt)
"Strategic Alliance"
means the exclusive sponsorship, advertising and/or supply
arrangements set out in any agreement that the Head Landlord has
entered into in writing with an Exclusive Supplier whereby
restrictions are imposed on the activities of the occupants of
premises on the Campus and pursuant to which the Landlord has an
obligation to observe such restrictions and to have each tenant
covenant to observe such restrictions;
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(uu)
"Sub-Lease" means this
Sub-Lease, including all schedules attached hereto and forming part
hereof and any amendments in writing signed by the
Parties;
(vv)
"Substance" means any
hazardous material or matter, whether in liquid, solid, gas or
other form, that is prohibited, regulated, controlled or licensed
by any Laws;
(ww)
"Taxes" means all taxes,
fees, levies, charges, assessments, rates, duties and excises which
are or may hereafter be levied, imposed, rated or assessed upon or
with respect to the Lands and Building or any part of the Lands and
Building or any personal property of the Landlord used therefor, by
the Government of Canada, the Government of British Columbia, or
any political subdivision, political corporation, district,
municipality, city, aboriginal group or other political or public
entity, whether or not now customary or in the contemplation of the
parties on the date of this Sub-Lease. Without restricting
the generality of the foregoing, Taxes shall include
all:
(i)
real property taxes,
general and special assessments and capital taxes, and business
taxes of the Landlord with respect to the Lands or Building or the
undertaking of the Landlord thereon,
(ii)
taxes, fees, levies,
charges, assessments, rates, duties and excises for transit,
housing, schools, police, fire, sewer or other governmental
services or for purported benefits to the Lands and
Building,
(iii)
local improvement taxes,
service payments in lieu of taxes, and taxes, fees, levies,
charges, assessments, rates, duties and excises, however described,
that may be levied, rated or assessed as a substitute for, or as an
addition to, in whole or in part, any property taxes or local
improvement taxes, and
(iv)
costs and expenses
including legal fees and other professional fees and interest and
penalties on deferred payments, incurred by the Landlord in
contesting or appealing any taxes, assessments, rates, levies,
duties, excises, charges or other amounts as aforesaid,
but Taxes shall exclude
income tax under Part I of the Income Tax Act of Canada, the
Tenant's Taxes and the Sales Taxes. If the Building is not
100% completed or occupied during the whole of any period for which
Taxes are being calculated, the Taxes shall be calculated by
including such additional amounts as would have been assessed if
the Building had been 100% completed and occupied during such
period, as reasonably determined by the Landlord;
(xx)
"Tenant's Proportionate
Share" means that proportion, the numerator of which is the
Rentable Area of the Premises and the denominator of which is the
Rentable Area of the Building;
(yy)
"Tenant's Taxes" means
all taxes, fees, levies, charges, assessments, rates, duties and
excises which are now or may hereafter be levied, imposed, rated or
assessed by any lawful authority relating to or in respect of the
business of the Tenant or relating to or in respect of personal
property and all business and trade fixtures, machinery and
equipment, cabinet work, furniture and movable partitions owned or
installed by the Tenant or being the property of the Tenant, or
relating to or in respect of improvements to the Lands built, made
or installed by the Tenant or on behalf of the Tenant or at the
Tenant's request whether any such amounts are payable by law by the
Tenant or by the Landlord and whether such amounts are included by
the taxing authority in the Taxes;
(zz)
"Term" means the period
of time described in Article 4 hereof;
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(aaa)
"Transferee" means the
assignee, subtenant, purchaser, mortgagee or other party acquiring
an interest in this Sub-Lease from the Tenant;
(bbb)
"Works" means any
alteration, improvement, structure, building or work constructed or
to be constructed by or on behalf of the Tenant on the
Lands.
SCHEDULES
2.2
The following schedules
attached hereto form part of this Sub-Lease:
Schedule A -
Landlord's
Work
Schedule B -
Plan of
Campus
Schedule C -
Premises
Schedule D -
Exclusive
Suppliers
ARTICLE 3. - DEMISE
AND EASEMENT
3.1
In consideration of the
Rent prescribed herein and the faithful performance by the Tenant
of the terms, covenants and conditions herein on the part of the
Tenant to be kept and performed the Landlord hereby leases to the
Tenant and the Tenant hereby leases from the Landlord the Premises
for the Term.
3.2
For the Term the Tenant
shall be entitled, in common with all others entitled thereto, to
the enjoyment as appurtenant to the Premises, for itself, its
invitees and licensees, of the right, privilege and license over
the common roadways on the Campus for the purposes of access and
egress to and from the Premises. The Head Landlord may alter
the boundaries or change the location of any of the roadways and
walkways from time to time so long as adequate access to and egress
from the Premises is provided.
3.3
The Tenant's entitlement
to park on the Campus is subject to the Tenant satisfying the rules
and regulations of the Head Landlord generally adopted for parking
on the Campus. The Tenant and its invitees and licensees
shall not park except in the areas designated by the Head Landlord
for parking, and then only with valid parking permits permitting
parking in such area properly displayed in accordance with the
rules and regulations adopted by the Head Landlord from time to
time. The Tenant shall pay all fees imposed by the Head
Landlord for parking, and all fines and charges (including without
limitation, charges for impounding and towing) imposed on the
vehicles of the Tenant, its invitees and licensees. At the
Commencement Date of the Term the Tenant shall be entitled, at the
Tenant's cost, to the number of parking permits described in the
Basic Terms and provided that the Tenant then acquires such
permits, the Tenant shall be responsible for the costs of such
parking permits and the due observance and performance of the rules
and regulations imposed by the Head Landlord from time to time with
respect to the same.
3.4
The Tenant shall not
register this Sub-Lease in the appropriate land title office or
elsewhere without the prior written consent of the Landlord, which
consent may require the Tenant to post with the Landlord security
for the performance of the Tenant's obligations and shall require
the Tenant to bear all costs of registration and of preparation and
registration of appropriate plans and of registration of a
discharge of this Sub-Lease at the termination of the same, if
registered.
ARTICLE 4. - TERM OF
SUB-LEASE
4.1
Subject to the
provisions of clause 4.2, the Term of this Sub-Lease shall commence
on the date described as the Commencement Date of the Term in the
Basic Terms and shall continue for the Term described in the Basic
Terms unless sooner terminated as herein provided.
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4.2
If the Landlord is
delayed in completing the Landlord's Work or providing possession
of the Premises for any reason other than due to a default of the
Tenant, the Commencement Date of the Term shall be extended to the
date that is the number of days set out in the Basic Terms as the
fixturing period after the date that the Landlord has notified the
Tenant that the Tenant may have non-exclusive access to the
Premises for the purpose of installing the Tenant's trade fixtures.
If the Landlord is delayed in providing possession of the
Premises due to the Tenant's default, the Landlord may elect to
terminate this Sub-Lease and the deposit described in the Basic
Terms and all amounts payable by the Tenant for the Landlord's Work
shall be immediately due and payable by the Tenant to the Landlord
as an estimate of the damages suffered by the Landlord for the
Tenant's default, or the Landlord may elect to continue this
Sub-Lease and enforce the terms thereof whereupon the Commencement
Date of the Term shall be that date set out in the Basic Terms as
the estimated Commencement Date of the Term.
ARTICLE 5. – RENT
AND DEPOSIT
5.1
The Tenant covenants and
agrees to pay to the Landlord, or as the Landlord may in writing
direct, Rent which shall be the aggregate of the sums specified in
clauses (a), (b) and (c) of this clause:
(a)
as Basic Rent the sum
per square foot of Rentable Area of the Premises per annum as set
out in the Basic Terms;
(b)
the Tenant's
Proportionate Share of Operating Expenses and Taxes charged for
each Lease Year; and
(c)
all other amounts
payable by the Tenant to the Landlord as provided in this
Sub-Lease.
5.2
The Tenant shall also
pay all costs and all utilities referred to in clause 5.6, all
Tenant's Taxes, and all Sales Taxes. The Landlord shall be
entitled to collect any such amount that is not so paid by the
Tenant as rent in arrears.
5.3
The Tenant shall pay the
Basic Rent in equal monthly instalments in advance on the first day
of each month in the amounts as set out in the Basic Terms, and the
Tenant shall pay the rent described in clause 5.1(b) and clause 5.2
from time to time in accordance with the provisions of Article 6.
5.4
The Tenant shall pay the
Deposit as set out in the Basic Terms and the Landlord may apply
the same against amounts due by the Tenant to the Landlord in the
Landlord's sole discretion. If the Landlord has not applied
the said Deposit, it shall be credited against the amounts payable
for the last months' Rent, with the monies applied firstly against
the amount payable for the last month's Rent.
5.5
The Tenant shall deliver
to the Landlord at its request receipts for payments of all Taxes
and Tenant's Taxes payable by the Tenant, notices of assessments
for Taxes or Tenant's Taxes or other assessments received by the
Tenant that relate to the Premises, and whatever other information
relating to Taxes and Tenant's Taxes that the Landlord reasonably
requests from time to time. The Tenant shall deliver to the
Landlord at least 10 days before the last date for filing appeals,
notice of any appeal or contestation that the Tenant intends to
institute with respect to Taxes or Tenant's Taxes payable by the
Tenant and obtain the prior written consent of the Landlord for the
appeal or contestation, which consent shall not be unreasonably
withheld. If the Tenant obtains the Landlord's consent and
does not pay the Taxes or Tenant's Taxes before the appeal or
contestation, the Tenant shall deliver to the Landlord whatever
security for the payment of the Taxes or Tenant's Taxes as the
Landlord reasonably requires, and the Tenant shall promptly and
diligently prosecute the appeal or contestation, and keep the
Landlord informed on all aspects of it. The Tenant shall
indemnify and save the Landlord harmless from all loss, cost,
charges and expenses arising from Taxes or Tenant's Taxes as well
as any taxes, rates, levies and assessments that may be levied or
imposed in place of Taxes or Tenant's Taxes, whether against the
Landlord or the Tenant including but not limited to, increases in
Taxes or Tenant's Taxes arising out of an appeal or contestation by
the Tenant. The Tenant shall deliver to the Landlord any
security for such an increase in Taxes or Tenant's Taxes or any
other taxes that the Landlord reasonably requires.
5.6
The Landlord and Tenant
agree that this Sub-Lease is absolutely net to the Landlord except
as otherwise provided in this Sub-Lease, and that all costs with
respect to the Premises, and the Tenant's Proportionate Share of
all costs with respect to the Lands and Building, without
duplication, shall be paid by the Tenant and without limiting the
generality of the foregoing, the Tenant shall pay promptly as the
same become due and indemnify the Landlord against:
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(a)
the costs of all
utilities and other services required by the Tenant to properly
service the Premises;
(b)
all rates for
electricity, gas, scavenging, sewage, telephone, water, steam and
other utilities and services used upon or furnished to the Premises
during the Term;
(c)
all costs of all
maintenance, repairs and replacements to the Premises except as
provided in clause 19.4;
(d)
every cost with respect
to the provision of security services to the Premises, such
services and patrols to be provided by the Landlord or as the
Landlord may otherwise determine;
(e)
every cost payable by
the Landlord incurred with respect to the Tenant or the Premises
and not otherwise provided for herein.
5.7
All payments by the
Tenant to the Landlord of whatsoever nature required or
contemplated by this Sub-Lease including all payments of Basic Rent
shall be:
(a)
paid to the Landlord by
the Tenant by either post-dated cheques for such portion of the
Term as required by the Landlord from time to time or by
pre-authorized payment permitting the Landlord to withdraw from the
bank account of the Tenant the Rent payable from time to time by
the Tenant;
(b)
made when due hereunder,
without prior demand, without any set off, compensation or
deduction whatsoever, at the office of the Landlord as set out
above or at such place as the Landlord may designate in writing
from time to time to the Tenant;
(c)
applied towards amounts
then outstanding hereunder, in such manner as the Landlord may see
fit; and
(d)
shall be payable and
recoverable as Rent, such that the Landlord shall have all rights
and remedies against the Tenant for default in making any such
payment which may not be expressly designated as Rent as the
Landlord has for default in payment of Rent.
5.8
All Rent reserved herein
shall be deemed to accrue from day to day and if for any reason it
shall become necessary to calculate the same for irregular periods
of less than 12 consecutive months an appropriate pro-rata
adjustment shall be made on a daily basis in order to compute for
such irregular period.
5.9
The Tenant hereby waives
and renounces any and all existing and future claims, off-sets and
compensation against any Rent or other amounts due hereunder and
agrees to pay such Rent and other amount regardless of any claim,
set-off or compensation which may be asserted by the Tenant or on
its behalf.
ARTICLE 6. -
OPERATING EXPENSES AND OTHER COSTS
6.1
As soon as reasonably
possible after the Commencement Date and after the commencement of
each Lease Year, and from time to time as the Landlord revises the
estimate, the Landlord shall furnish to the Tenant an estimate of
the Operating Expenses, Taxes, and other amounts payable by the
Tenant to the Landlord under this Sub-Lease (excluding Basic Rent)
for the period described in such estimate or revised estimate.
The Tenant shall pay to the Landlord on the first day of each
month the estimated monthly amount. If the Landlord has not
furnished to the Tenant the estimate aforesaid, the Tenant shall
pay to the Landlord the amount due aforesaid as soon as such
estimate is furnished by the Landlord to the Tenant.
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6.2
If the actual Operating
Expenses, Taxes and other amounts payable by the Tenant exceed the
estimated amounts for the period of the Term for which the Landlord
has provided the estimate, the Tenant agrees to pay within ten days
of written demand by the Landlord such actual amounts properly
allocated to the Tenant in accordance with the terms of this
Sub-lease, subject to credit being given for the monthly payments
made under the provisions of clause 6.1 hereof. The Landlord
shall refund to the Tenant or give credit to the Tenant for the
amount of any overpayment made by the Tenant occasioned by the
actual Operating Expenses, Taxes and other amounts payable by the
Tenant for such period being less than the estimate of the same
paid by the Tenant for such period. The certificate of a
chartered accountant appointed by the Landlord shall, in the event
of dispute, be conclusive and binding upon the Landlord and the
Tenant as to any amounts payable under this clause 6.2.
6.3
Notwithstanding any
other provision in this Sub-Lease, the Landlord may at any time
allocate any particular cost, including a cost forming part of the
Operating Expenses or Taxes amongst the tenants in the Building
based on the extent that such tenants benefit from such cost or
such cost is properly allocable to the Lands, the Building or
tenants, as determined by the Landlord acting reasonably, and the
Tenant covenants to pay any such cost so allocated to the Tenant by
the Landlord. Any cost allocated by the Landlord under this
clause or similar clauses in other leases of premises in the
Building shall not be included in the Operating Expenses, Taxes or
other costs payable by the Tenant under clauses 6.1 and 6.2.
Any cost allocated to the Tenant under this clause shall be
paid by the Tenant to the Landlord upon demand or at the option of
the Landlord with respect to any particular cost in the same manner
and at the same time the Tenant pays to the Landlord the Tenant's
Proportionate Share of the Operating Expenses.
6.4
The Tenant covenants
with the Landlord to cooperate with the Landlord in the
conservation of all forms of energy in the Building, including
without limitation the Premises, and to cooperate with the Landlord
with respect to all programs and systems instituted by the Landlord
in connection with reducing the costs of energy consumed in the
Building including the Premises. If the Landlord decides from
time to time to install any machinery, equipment, facilities,
systems or property which has the purpose or intention of
conserving energy consumed in the Building, including the Premises,
the Tenant agrees with the Landlord to pay the Tenant's
Proportionate Share of the amortized costs using generally accepted
accounting principles, of such machinery, equipment, facilities,
systems and property.
ARTICLE 7. - SALES
TAXES AND TENANT’S TAXES
7.1
It is the intention of
the parties that the Landlord shall be fully reimbursed by the
Tenant in respect of any and all Sales Taxes payable by the
Landlord. The amount of the Sales Taxes so payable by the
Tenant shall be calculated by the Landlord in accordance with the
applicable legislation and shall be paid to the Landlord at the
same time as the amounts to which such Sales Taxes apply are
payable to the Landlord under the terms of this Sub-Lease or upon
demand at such other time or times as the Landlord from time to
time determines. Notwithstanding anything in this Sub-Lease
to the contrary, the amounts payable by the Tenant under this
clause 7.1 shall be deemed not to be Rent, but the Landlord shall
have all of the same rights and remedies for the recovery of such
amounts as it has for recovery of Rent under this
Sub-Lease.
7.2
Upon written request of
the Landlord the Tenant will promptly deliver to the Landlord for
inspection, receipts for payment of all Tenant's Taxes and all
utilities and other costs paid directly by the Tenant to the
appropriate collecting authority.
7.3
If the Landlord is
required by lawful authority or considers it desirable to pay the
Tenant's Taxes, utilities or other costs which the Tenant fails or
neglects to pay, the Tenant shall pay the amount thereof to the
Landlord forthwith after written request therefor.
ARTICLE 8. -
INSURANCE
8.1
The Tenant shall obtain
and keep in force throughout the Term All Risk property insurance
including coverage for flood and earthquakes and such other
coverage as the Landlord may reasonably require, on all tenant's
trade fixtures and any improvements made by or at the cost or
request of the Tenant and all of the Tenant's equipment located on
the Premises. The amount of such insurance shall be the full
replacement value of all trade fixtures, improvements made by the
Tenant and equipment on the Premises.
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8.2
The policies of
insurance provided for in clause 8.1 shall name the Landlord and
Head Landlord as insureds and shall be payable to the Landlord, its
mortgagees, the Head Landlord and the Tenant, as their respective
interests may appear, and any major loss adjustment shall require
the written consent of each of them with an interest therein.
The parties hereto agree that the proceeds paid by any such
insurer shall be applied to reconstruct or replace the improvements
made by the Tenant and the trade fixtures and equipment of the
Tenant provided however that if this Sub-Lease is terminated
pursuant to Article 19, the proceeds from the insurance shall be
paid to the Tenant.
8.3
Throughout the Term the
Tenant shall obtain and keep in force general liability insurance
fully insuring against liability of the Tenant with respect to the
Premises or arising out of the maintenance, use or occupation
thereof. Such policy shall be in an amount of not less than
$5 Million per occurrence at the commencement of the Term, and
thereafter in such amounts as the Landlord may reasonably require.
The general liability policy shall name the Landlord and Head
Landlord, their respective officers, directors, trustees,
governors, employees and agents as additional named insureds, shall
contain a cross liability clause and broad form coverage for
contractual liability and such insurance shall be primary in
respect of claims and shall not participate in or be excess over
any insurance carried by the Landlord or the Head Landlord.
The Tenant shall obtain and keep in force liability insurance
for all motor vehicles, owned and non-owned, operated on the Campus
and such other types of insurance as the Landlord may reasonably
require.
8.4
All of the insurance
provided for in clause 8.1 and 8.3 and all renewals thereof shall
be issued by such reputable and duly qualified insurers and in such
form and substance as are approved by the Landlord, such approval
not to be unreasonably withheld. All policies provided for in
clauses 8.1 and 8.3 shall expressly provide that the policy shall
not be cancelled or altered without 60 days, prior written notice
to the Landlord and Head Landlord, and that all rights of
subrogation against the Landlord and Head Landlord are waived.
Upon the issue and each renewal thereof, each policy or a
certified duplicate thereof or other satisfactory evidence of
adequate insurance shall be delivered to the Landlord. Proof
of payment of premiums for insurance shall also be delivered to the
Landlord if requested.
8.5
The Tenant waives as
against the Landlord, the Head Landlord, their respective officers,
directors, trustees, governors, employees and agents each claim and
demand of every nature whatsoever for damage, loss or injury to the
Premises, the improvements and property of the Tenant, its invitees
and licensees which shall be caused by or result from fire or other
perils, events or happenings which ought to have been covered by
insurance, or is covered by insurance pursuant to this Sub-Lease,
whether or not such claim is covered by insurance. The Tenant
hereby releases the Landlord, the Head Landlord, their respective
officers, directors, trustees, governors, employees and agents from
all liability with respect to such damage, loss or
injury.
ARTICLE 9. - USE OF
THE PREMISES
9.1
The Tenant shall not use
the Premises, nor permit them to be used for any purpose other than
for the Research Activity unless the written consent of the
Landlord is first obtained. Provided that the Landlord has
not previously consented to such use, the Landlord may prohibit any
use which in the Landlord's sole and absolute discretion is
inconsistent or incompatible with the definition of Research
Activity as is herein contained, or might cause a nuisance,
annoyance or disturbance to the Landlord or its other tenants, its
employees, the Head Landlord, faculty or students, or to the owners
or occupiers of property adjoining the Campus or if the Head
Landlord, being so entitled, objects to such use. The Tenant
acknowledges that the Head Landlord, if it has not previously
consented to such use, may object to a use if it is inconsistent or
incompatible with the definition of Research Activity or the
proposed research activity or other business of the Tenant or its
affiliates might cause public relations problems for the Head
Landlord or if the research activities or other businesses of the
Tenant or its affiliates are conducted in a manner which is
contrary to the Head Landlord's published policies in connection
therewith.
9.2
The Tenant has satisfied
itself that the Premises once completed in accordance with the
Landlord's Work will be suitable for the use permitted herein for
which the Premises are leased. The taking of occupation of
the Premises by the Tenant shall be deemed to be acknowledgement by
the Tenant that the Landlord has satisfactorily completed the
Landlord's Work except as detailed in a list of deficiencies
provided by the Tenant to the Landlord on or before the
Commencement Date of the Term.
9.3
The Tenant shall
continuously carry on the Research Activity on the Premises during
the Term. For the purpose of this clause, the Tenant shall be
deemed to be continuously carrying on the Research Activity on the
Premises if the Premises are equipped and staffed as required to
carry out the Research Activity during Normal Business Hours in
accordance with sound business practice.
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If the Tenant does not
continuously use the Premises or any portion thereof throughout the
Term for the Research Activity, then the Landlord may terminate
this Sub-Lease, in addition to all other rights of the Landlord
herein.
ARTICLE 10. -
COMPLETION OF AND OWNERSHIP OF IMPROVEMENTS
10.1
The Landlord shall
complete the Premises to the standard and level of finish described
as the Landlord's Work in the Basic Terms. The Tenant shall
pay the cost of changes requested by the Tenant to the Landlord's
Work and consented to by the Landlord immediately upon being
advised of the actual costs of the same, with the estimate of such
amounts to be paid in advance as set out in the Basic Terms.
The Tenant shall install tenant's trade fixtures required to
carry out the Research Activity on the Premises and shall complete
the same in accordance with the terms of this Sub-Lease on or
before the Commencement Date of the Term. The Landlord shall
provide non-exclusive access to the Premises to the Tenant to
permit the Tenant to install the Tenant's trade fixtures for the
period of days described as the fixturing period in the Basic Terms
prior to the Commencement Date of the Term. During such
period the Tenant shall not be required to pay Basic Rent but shall
pay all other expenses related to such occupation, as rent, upon
being advised by the Landlord of the amount of the same.
10.2
Notwithstanding any
other terms or provisions of this Sub-Lease, the Tenant shall at no
time during the currency of this Sub-Lease be entitled to commence
the construction of any Works, nor alteration of the Premises in
any manner without the written consent of the Landlord and until
complete drawings, plans and specifications for the construction
thereof have been provided to the Landlord and approved in writing
by the Landlord, and the Head Landlord if necessary. Such
drawings, plans and specifications shall specify the location,
design, layout, appearance, materials to be used and any and all
other necessary details requested by the Landlord. The
Landlord's and Head Landlord's reasonable costs of assessing
drawings, plans and specifications
