AGREEMENT OF LEASE BETWEEN GELPRIM INC. - as Lessor AND EVENTS INTERNATIONAL MEETING PLANNERS INC. - as Lessee
Exhibit
4.13
AGREEMENT
OF LEASE
BETWEEN
GELPRIM
INC.
-
as
Lessor
AND
EVENTS
INTERNATIONAL MEETING PLANNERS INC.
-
as
Lessee
EXTRACT
FROM THE MINUTES OF A MEETING OF THE BOARD OF DIRECTORS OF
EVENTS
INTERNATIONAL MEETING PLANNERS INC.
HELD
ON
THE DAY OF
___________________________________________________________________________________________________________________________
RESOLVED:
“That
the
company enter into a Lease Agreement with GELPRIM INC. for premises situated
in
the building bearing the civic address 000/000 Xxxxxxxx Xxxxxx in the City
of
Montreal, the whole in accordance with a draft Lease submitted to the meeting
and approved thereat and that
_________________________________________________________________
its
________________________________________________________________________
and
______________________________________________________________ its
_____________________________________________________________________
be
and
that
they are hereby authorised to sign and execute the said Lease Agreement on
behalf of the company and to make such amendments or modifications to the said
Lease Agreement as they in their sole discretion deem proper.”
Certified
to be a true copy
of
a
resolution passed at a
meeting
of the directors of
EVENTS
INTERNATIONAL MEETING PLANNERS INC.
duly
called and held on the
________
day of _________
19_____,
as set forth in
the
minutes of said meeting,
and
further that the said
resolution
is now in full
force
and
effect.
Dated
this _________ day
of
_____________, 19____.
_______________________
SECRETARY
SEAL
| 1. | INTENT OF LEASE | ||
|
|
1.1
|
Intent
of Parties
|
1 |
|
2.1
|
Location
and Square Footage
|
1
|
|
|
3
|
TERM
|
||
|
3.1
|
Term
|
1
|
|
|
4
|
MINIMUM
RENT
|
||
|
4.1
|
Minimum
Rent
|
2
|
|
|
5
|
REAL
ESTATE TAXES
|
||
|
5.1
|
Payment
|
2
|
|
|
5.2
|
Proportionate
Share
|
2
|
|
|
6
|
OPERATING
EXPENSES
|
||
|
6.1
|
Payment
|
3
|
|
|
6.2
|
Proportionate
Share
|
3
|
|
|
7
|
USE
OF PREMISES
|
||
|
7.1
|
Permitted
Use
|
3
|
|
|
8
|
DEFINITIONS
|
||
|
8.1
|
Additional
Rent
|
3
|
|
|
8.2
|
Apportionable
Operating Expenses
|
3
|
|
|
8.3
|
Apportionable
Real Estate Taxes
|
3
|
|
|
8.4
|
Building
|
3
|
|
|
8.5
|
Building
External Services
|
3
|
|
|
8.6
|
Common
Areas
|
3
|
|
|
8.7
|
Land
|
4
|
|
|
8.8
|
Lease
|
4
|
|
|
8.9
|
Lease
Year
|
4
|
|
|
8.10
|
Lessor
|
4
|
|
|
8.11
|
Lessee
|
4
|
|
|
8.12
|
Minimum
Rent
|
4
|
|
|
8.13
|
Operating
Expenses
|
4
|
|
|
8.14
|
Operating
Year
|
6
|
|
|
8.15
|
Proportion
of Apportionable Operating Expenses
|
6
|
|
|
8.16
|
Proportion
of Apportionable Real Estate Taxes
|
6
|
|
|
8.17
|
Real
Estate Taxes
|
6
|
|
|
8.18
|
Rentable
Area of the Building
|
6
|
|
|
8.19
|
Rentable
Area of the Premises
|
7
|
|
|
9.
|
OPERATING
EXPENSES
|
||
|
9.1
|
Lessee’s
Proportionate Share
|
7
|
|
|
9.2.
|
Estimate
of Lessee’s Proportionate Share
|
7
|
|
|
9.3
|
Certified
Statements of Operating Expenses
|
7
|
|
|
9.4
|
Revisions
to Certified Statements
|
7
|
|
|
9.5
|
Survival
of Obligations
|
7
|
|
|
10.
|
REAL
ESTATE TAXES
|
||
|
11.
|
PAYMENT
OF MONIES
|
||
|
11.1
|
Payment
|
8
|
|
|
11.2
|
Currency
|
8
|
|
|
11.3
|
Interest
on Arrears
|
8
|
|
|
11.4
|
Late
Charge
|
8
|
|
|
11.5
|
Right
to Set Off
|
9
|
|
|
11.6
|
Termination
of Lease
|
9
|
|
|
12
|
BUSINESS,
WATER AND IMPROVEMENTS TAXES
|
||
|
12.1
|
Lessee’s
Responsibility
|
9
|
|
|
12.2
|
Reimbursement
of Lessor
|
9
|
|
|
13
|
UTILITIES
AND SERVICES
|
||
|
13.1
|
Utilities
|
9
|
|
|
13.2
|
Allocation
of Cost
|
9
|
|
|
13.3
|
Heating,
Air Conditioning
|
9
|
|
|
13.4
|
Electricity
|
10
|
|
|
13.5
|
Elevators
|
10
|
|
|
13.6
|
Cleaning
|
10
|
|
|
13.7
|
Refuse
Disposal
|
10
|
|
|
13.8
|
Special
Equipment
|
10
|
|
|
13.9
|
Discontinuation
or Modification
|
10
|
|
|
14
|
INSURANCE
|
||
|
14.1
|
Increase
in Lessor’s Insurance
|
11
|
|
|
14.2
|
Fire
Fighting Equipment
|
11
|
|
|
14.3
|
Required
Insurance Coverage
|
11
|
|
|
14.4
|
Failure
to Insure
|
11
|
|
|
15
|
ALTERATIONS,
REPAIRS, IMPROVEMENTS
|
||
|
15.1
|
Care
of Premises
|
12
|
|
|
15.2
|
Improvements,
Repairs, Alterations, Installations
|
12
|
|
|
15.3
|
Legal
Hypothecs, Privileges and Liens
|
13
|
|
|
15.4
|
Property
of Lessor
|
13
|
|
|
16
|
ASSIGNMENT
AND SUBLETTING
|
||
|
16.1
|
Consent
Required
|
13
|
|
|
16.2
|
Lessee
to Furnish Information
|
13
|
|
|
16.3
|
Lessor’s
Rights
|
13
|
|
|
16.4
|
Lessor’s
Conditions
|
14
|
|
|
16.5
|
Deemed
Sublease
|
14
|
|
|
16.6
|
Advertising
|
15
|
|
|
16.7
|
Lessor’s
Right of First Refusal
|
15
|
|
|
16.8
|
Change
of Control
|
15
|
|
|
16.9
|
No
Bonus Value
|
15
|
|
|
17
|
DEFAULT
OF LESSEE AND REMEDIES OF LESSOR
|
||
|
17.1
|
Acts
of Default
|
16
|
|
|
17.2
|
Remedies
of Lessor
|
17
|
|
|
17.3
|
Lessor’s
Cumulative Rights
|
17
|
|
|
18
|
DAMAGES
|
||
|
18.1
|
Acts
of Lessee
|
17
|
|
|
18.2
|
Limitation
of Lessor’s Liability
|
17
|
|
|
19
|
FIRE,
DESTRUCTION OF PREMISES
|
||
|
19.1
|
Total
Destruction
|
18
|
|
|
19.2
|
Fault
of Lessee
|
19
|
|
|
20
|
EXPROPRIATION
|
||
|
20.1
|
Expropriation
|
19
|
|
|
21
|
TERMINATION
OF LEASE
|
||
|
21.1
|
Effective
Date of Termination
|
19
|
|
|
21.2
|
Abandonment
of Property
|
19
|
|
|
22
|
SECURITY
|
||
|
22.1
|
Moveable
Effects
|
19
|
|
|
22.2
|
Privilege
of Lessor
|
20
|
|
|
22.3
|
Moveable
Hypothec
|
20
|
|
|
23
|
ACCESS
TO PREMISES
|
||
|
23.1
|
To
Examine or Exhibit Premises
|
21
|
|
|
23.2
|
To
Install Equipment
|
21
|
|
|
INDEX
|
|||
|
24
|
COMPLIANCE
WITH LAWS AND INDEMNIFICATION
|
||
|
24.1
|
Compliance
|
21
|
|
|
24.2
|
Indemnification
of Lessor
|
21
|
|
|
25
|
MORTGAGES,
SALE OF BUILDING
|
||
|
25.1
|
Lessor’s
Right to Assign
|
21
|
|
|
25.2
|
Sale
or Transfer of Xxxxxxxx
|
00
|
|
|
00
|
XXXXX
XXXXXXXXX
|
||
|
26.1
|
Prior
Occupancy
|
22
|
|
|
27
|
RELOCATION
|
||
|
27.1
|
Relocation
of Lessee
|
22
|
|
|
28
|
NOTICES
|
||
|
28.1
|
Notices
|
22
|
|
|
29
|
INTERPRETATION
|
||
|
29.1
|
Representations,
Warranties, Prior Agreements
|
22
|
|
|
29.2
|
Exclusivity
|
22
|
|
|
29.3
|
Brokerage
Commission
|
23
|
|
|
29.4
|
Governing
Law & Waiver of Civil Code of Quebec
|
23
|
|
|
29.5
|
Successors
and Assigns
|
23
|
|
|
29.6
|
Interpretation,
Captions
|
23
|
|
|
29.7
|
Waiver
|
23
|
|
|
30
|
RULES
AND REGULATIONS
|
||
|
30.1
|
Acts
of Nuisance
|
23
|
|
|
30.2
|
Signs,
Advertising
|
23
|
|
|
30.3
|
Directories
Listings
|
24
|
|
|
30.4
|
Removal
of Furniture, Fixtures
|
24
|
|
|
30.5
|
Installation
of Floor Covering
|
24
|
|
|
30.6
|
Receiving
of Supplies
|
24
|
|
|
30.7
|
Passages,
Elevators
|
24
|
|
|
30.8
|
Locks
|
24
|
|
|
30.9
|
Cooking
on Premises Prohibited
|
24
|
|
|
30.10
|
Heavy
Objects
|
24
|
|
|
30.11
|
Canvassing,
Soliciting
|
24
|
|
|
30.12
|
Animals
|
25
|
|
|
30.13
|
Further
Rules and Regulations
|
25
|
|
|
30.14
|
Waiver,
Modification
|
25
|
|
|
30.15
|
Publication
of Lease
|
25
|
|
|
31
|
SPECIAL
PROVISIONS
|
||
|
31.1
|
Finishing
of Premises
|
25
|
|
|
31.2
|
Security
Deposit
|
25
|
|
|
31.3
|
Letter
of Credit
|
26
|
|
|
31.4
|
Special
Conditions
|
26
|
|
AGREEMENT
OF NET LEASE
entered
into at the City of Montreal, Province of Quebec, on this October 4,
1997.
| BETWEEN: |
GELPRIM
INC.
000
Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxx, X0X 0X0
Tel.:
(000) 000-0000
Fax.:
(000) 000-0000
|
hereinafter
called “Lessor”
| AND: |
EVENTS
INTERNATIONAL MEETING PLANNERS INC.
000
Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxx
X0X
0X0
|
hereinafter
called “Lessee”
1 INTENT
OF LEASE
| 1.1 |
Intent
of Parties
|
It
is the
intent of the parties that this agreement of net lease (hereinafter called
the
“Lease”) be a lease that is absolutely net to the Lessor except as expressly
hereinafter set out. The Lessor shall not be responsible during the term for
costs, charges, expenses or disbursements of any kind related to the Premises,
its use, occupation, content or business transacted therein or deriving
therefrom, and. the Lessee shall pay all charges, taxes, costs and expenses
of
any nature related to the Premises, except for those expressly stipulated
otherwise in the. Lease. Any amount and any obligation that is not expressly
declared herein to be that of the Lessor, shall be deemed to be the obligation
of the Lessee and to be performed by and at the expense of the
Lessee.
2 DESCRIPTION
OF PREMISES
| 2.1 |
Location
and Square Footage
|
Lessor
hereby leases to Lessee certain space with an area of approximately 6,601 gross
square feet shown outlined in red on Schedule “A” attached hereto (hereinafter
referred to as the “Premises”) and situated on the 3rd floor of the building
bearing the civic addresses 000/000 Xxxxxxxx Xxxxxx and 000 Xx Xxxxxxx Xxxx
(hereinafter called the “Building”) in the City of Montreal.
The
foregoing square footage of the Premises is approximate and will be finally
determined by an architect designated by Lessor to whom Lessee has no reasonable
objection, whose certificate will be final and binding upon the parties. Should
the area of the Premises, as so certified, be at variance with the foregoing
measurement, Minimum Rent, which is based upon the rates per gross square foot
indicated in section 4.1 in respect of the periods indicated therein, and
Lessee’s Proportionate Share hereinafter referred to in Sections 5.2 and 6.2 and
all other amounts hereunder calculated with reference to said area shall be
adjusted accordingly.
3 TERM
| 3.1 |
Term
|
The
term
of this Lease shall commence on December
1, 1997
and
shall end ten years later at 12:00 noon on November
30, 2007
unless
sooner terminated under the provisions of this Lease.
4 MINIMUM
RENT
| 4.1 |
Minimum
Rent
|
The
Lessee covenants and agrees to pay to the Lessor, without demand, notice,
setoff, compensation or deduction whatsoever, a fixed annual minimum rent
(hereinafter called the “Minimum Rent”) to be paid in advance in equal monthly
instalments on the first day of each month during the term hereof. In accordance
with the foregoing, the Minimum Rent shall be payable as follows:
|
4.1.1
|
nineteen
thousand eight hundred three dollars ($19,803.00)
per annum to be paid in equal monthly instalments of one
thousand six hundred fifty dollars and twenty-five cants
($1,650.25)
in
advance on the first day of each month during the period commencing
December
1, 1997
and terminating November
30, 2000 ($3.00/g.s.f.);
|
|
4.1.2
|
forty-six
thousand two hundred six dollars and ninety-six cents
($46,206.96)
per annum to be paid in equal monthly instalments of three
thousand eight hundred fifty dollars and fifty-eight cents
($3,850.58)
in
advance on the first day of each month during the period commencing
December
1, 2000
and terminating November
30, 2002 ($7.00/g. s. f.);
|
|
4.1.3
|
fifty-nine
thousand four hundred nine dollars ($59,409.00)
per annum to be paid in equal monthly instalments of four
thousand nine hundred fifty dollars and seventy-five cents
($4,950.75)
in
advance on the first day of each month during the period commencing
December
1, 2002
and terminating November 30, 2004 ($9.00/g.s.f.);and
|
|
4.1.4
|
sixty-two
thousand seven hundred nine dollars and forty-eight cents
($62,709.48)
per annum to be paid in equal monthly instalments of five
thousand two hundred twenty-five dollars and seventy-nine cents
($5,225.79)
in
advance on the first day of each month during the period commencing
December
1, 2004
and terminating November
30, 2007 ($9.50/g.s.f.).
|
5 REAL
ESTATE TAXES
| 5.1 |
Payment
|
The
Lessee covenants and agrees to pay to Lessor without demand, notice, setoff,
compensation or deduction whatsoever, its proportionate share of all Real Estate
Taxes, which are estimated at the signing of this agreement to be approximately
twenty-one
thousand nine hundred eighty-one dollars and thirty-six cents
($21,981.36)
per
annum, to be paid in advance in equal monthly instalments of one
thousand eight hundred thirty-one dollars and seventy-eight cents
($1,831.78)
each on
the first day of each month during the term hereof.
| 5.2 |
Proportionate
Share
|
The
parties agree that the Lessee’s proportion of apportionable real estate taxes
shall be four
decimal four seven five nine percent (4.4759%)
of any
such apportionable real estate taxes.
6 OPERATING
EXPENSES
| 6.1 |
Payment
|
The
Lessee covenants and agrees to pay to Lessor without demand, notice, setoff,
compensation or deduction whatsoever, its proportionate share of all operating
expenses, which are estimated as at the signing of this agreement to be
approximately forty-three
thousand thirty-eight dollars and forty-eight cents
($43,038.48)
per
annum, to be paid in advance in equal monthly installments of three
thousand five hundred eighty-six dollars and fifty-four cents
($3,586.54)
each on
the first day of each month during the term hereof.
| 6.2 |
Proportionate
Share
|
The
parties agree that the Lessee’s proportion of apportionable operating expenses
shall be four
decimal four seven five nine percent (4.4759%)
of any
such apportionable operating expenses.
7 USE
OF PREMISES
| 7.1 |
Permitted
Use
|
The
Premises shall be used and occupied by Lessee on a continuous basis during
normal business hours for the purpose of general
offices
and for
no other purpose.
8 DEFINITIONS
In
this
Lease, the following defined terms have the meanings indicated:
| 8.1 |
Additional
Rent
|
“Additional
Rent” means all amounts other than Minimum Rent and payable by Lessee to
Lessor.
| 8.2 |
Apportionable
Operating Expenses
|
“Apportionable
Operating Expenses” means all operating expenses as hereinafter
defined.
| 8.3 |
Apportionable
Real Estate Taxes
|
“Apportionable
Real Estate Taxes” means all real estate taxes applicable to the land and the
Building.
| 8.4 |
Building
|
“Building”
means all structures and improvements, whether above or below ground and
consisting principally, without limiting the generality of the foregoing,
of:
|
8.4.1
|
the
building bearing civic addresses 000/000 Xxxxxxxx Xxxxxx and 400
St-Xxxxxxx Xxxx, in the City of Montreal;
and
|
|
8.4.2
|
where
the context requires, the Building External
Services.
|
| 8.5 |
Building
External Services
|
“Building
External Services” means those portions of the World Trade Centre common areas
which have been made available to the occupants of the Building pursuant to
express agreements between the owners of the World Trade Centre and the Lessor,
and in respect of which the Lessor is required to make a real estate tax or
operating expense contribution, e.g., ramp off of St-Antoine Street, World
Trade
Centre loading dock and receiving area, passage from World Trade Centre loading
dock to Building freight elevator, World Trade Centre garbage disposal
facilities and HVAC system for World Trade Centre atrium over Fortification
Lane.
| 8.6 |
Common
Areas
|
“Common
Areas” means any and all areas, services, and facilities not intended for the
exclusive use or benefit of any individual Lessee and including without
restriction, all non-leaseable areas, service and administration areas, roof,
floor slabs, exterior walls, and exterior and interior structural portions
of
the Building, public lavatories, truck docks, common loading areas, electrical,
music and public address systems, plumbing and drainage systems, the heating,
ventilation and air-conditioning system, customer and service stairways,
escalators and elevators, if any, and all other areas, services and facilities,
including the Building External Services, which are provided or designated
from
time to time by the Lessor as part of the Common Areas (and which may be
altered, reduced or extended from time to time).
| 8.7 |
Land
|
“Land”
means lots 216, 217, 218, 219 and 220 upon the official plan and book of
reference of the City of Montreal, “Quartier Ouest”, as well as all other pieces
of land on which the owner of the Building has a title, be it under ownership,
emphyteutic lease, right of occupancy of the public domaine, right of
superficies or any other right(s) on, over or under the surface, including
truck
docks, the truck ramps, and underground passages, and including the areas in
which are situated the Building External Services.
| 8.8 |
Lease
|
“Lease”
means this agreement and all Schedules attached hereto.
| 8.9 |
Lease
Year
|
“Lease
Year” shall mean successive periods of twelve (12) calendar months commencing on
the first day of the first full calendar month of the term hereof, with the
exception of the first lease year, which may be for a maximum period of thirteen
(13) months and with the exception of the last lease year which may be for
a
period of less than twelve (12) months. The Lessor shall have the right to
change the Lease Year from time to time provided, however, that no substantial
detriment is incurred by the Lessee as a result of any such change.
| 8.10 |
Lessor
|
“Lessor”
means the party first hereinabove described and includes, where the context
permits, its employees, agents, representatives, successors and
assigns.
| 8.11 |
Lessee
|
“Lessee”
means the person executing this Lease as Lessee and includes, where the context
permits, its employees, agents, representatives, successors and
assigns.
| 8.12 |
Minimum
Rent
|
“Minimum
Rent” - means the rent payable pursuant to article 4.1.
| 8.13 |
Operating
Expenses
|
“Operating
Expenses” mean the aggregate of any and all expenses incurred or to be incurred
by the Lessor, subsequent to any Lease Year during the term of this Lease and
its renewals, without duplication thereof and without marking-up any such
charges by the industry’s standard 15% overhead charge, which are attributable,
in accordance with generally accepted accounting principles, to the maintenance,
operation, repair, supervision, or replacement of the Building and the
maintenance, operation and supervision of the Land and include, without limiting
the generality of the foregoing, operation as well as corporate and financial
expenses, as the said terms are hereinafter defined. In addition, “Operating
Expenses” includes, without limiting the generality of the foregoing, the
following categories of expenses:
|
8.13.1
|
Building
Services
|
|
i.
|
Cleaning;
|
|
ii.
|
Electrical
Power and Services;
|
|
iii.
|
Heating,
Ventilation and Air-Conditioning;
|
|
iv.
|
Plumbing;
|
|
v.
|
Elevator
Service;
|
|
vi.
|
Security
and Hostesses;
|
|
vii.
|
Material
Handling;
|
|
viii.
|
Water
Taxes and Rates;
|
|
ix.
|
Building
operations, building administration, general overhead and administrative
expenses;
|
|
x.
|
General
Services;
|
|
xi.
|
Lessor’s
contributions in respect of operating expenses and real estate taxes
in
connection with the Building External
Services;
|
|
8.13.2
|
Repairs
and Modifications - Short Life
|
The
cost
of any repair(s) and modification(s) and addition(s) to the Building and/or
machinery and equipment therein and thereon where, in the reasonable opinion
of
the Lessor, such expenditure may reduce Operating Expenses; or any additional
equipment or improvements required by law or, in the Lessor’s reasonable
opinion, for the benefit or safety of Building users, provided that said cost
may properly be expensed in accordance with generally accepted accounting
principles;
| 8.13.3 |
Repairs,
Replacements, Modifications and Improvements - Long
Life
|
The
total
annual amortization of capital at rates determined from time to time by the
Lessor on the basis of sound accounting principles, and interest on the
unamortized capital at a rate equivalent to the lending rate actually charged
or
chargeable to Lessor by the Lessor’s bankers from time to time, of the cost of
all machinery, equipment, supplies, repairs, replacements, modifications and
improvements which in the Lessor’s reasonable opinion have an estimated useful
life longer than one (1) fiscal year of the Lessor and the cost whereof has
not
previously been charged to the Lessee;
| 8.13.4 |
Corporate
and Financial Expenses
|
| i. |
Insurance
|
The
actual cost of all insurances that may be carried by the Lessor in respect
of,
or attributable to, the Building and the Land or related thereto including
without limitation: all-risk insurance against fire and other perils, and
liability regarding casualties, injuries and damages, boiler and machinery
insurance and rental income insurance;
| ii. |
Taxes
|
Capital
and place of business, water and business taxes on Lessor’s administration
offices and on Common Areas;
| iii. |
Audit
and Legal
|
Audit,
as
well as legal expenses incurred in relation to operations;
| iv. |
Adversarial
Expenses
|
Any
and
all expenses incurred and/or paid to contest, litigate, appeal, negotiate,
settle, evaluate, analyse, dispute, or in any way fight or challenge the nature,
quantum, appropriateness or any other aspect of any amount claimed by any party,
public or private, in connection with the building and/or the operation thereof,
including, without limitation, legal, accounting, audit, expert, architectural,
engineering, medical, consulting, arbitration, and any other such costs which
are incurred as a necessary part of any dispute concerning an amount claimed
from a landlord who is acting in good faith;
| v. |
Miscellaneous
expenses.
|
Miscellaneous
expenses incurred in relation to operation.
|
8.13.5
|
Net
Expenses
|
It
is
expressly understood and agreed, that there shall be considered as Operating
Expenses, only the net amount of such Operating Expenses, after deduction from
gross operating expenses of any and all costs actually recovered by the Lessor
from the other tenants of the Building otherwise than by way of Minimum Rent
or
as Additional Rent.
| 8.14 |
Operating
Year
|
“Operating
Year” means a year commencing on January first of a calendar year and
terminating on December thirty-first of that calendar year, provided that the
Lessor shall be entitled at any time, and from time to time, to change the
commencement and termination dates of any Operating Year, without the Lessee
being thereby unduly prejudiced.
| 8.15 |
Proportion
of Apportionable Operating
Expenses
|
“Proportion
of Apportionable Operating Expenses” is expressed as a percentage of
Apportionable Operating Expenses equal to that fraction of Apportionable
Operating Expenses having as a numerator the rentable area of the Premises
and
as a denominator the rentable area of the Building.
| 8.16 |
Proportion
of Apportionable Real Estate
Taxes
|
“Proportion
of Apportionable Real Estate Taxes” is expressed as a percentage of
Apportionable Real Estate Taxes equal to that fraction of Apportionable Real
Estate Taxes having as a numerator the rentable area of the Premises and as
a
denominator the rentable area of the Building.
| 8.17 |
Real
Estate Taxes
|
“Real
Estate Taxes” means all taxes, rates and assessments, general and special,
levied or imposed with respect to the Building (including any accessories and
improvements thereto) and the Land, including where applicable all taxes, rates,
assessments and impositions, general and special, levied or imposed for
municipal, urban community, school or Olympic purposes, including public
betterment or general or local improvements. Lessor shall have the right to
pay
any special assessment by instalments and, in such event, “Real Estate Taxes”
shall include the amount of any such instalment paid including interest on
the
unpaid balance of the special assessment.
If
the
system of real estate taxation shall be altered or varied and any new tax or
levy shall be levied or imposed on the Building and/or Land and/or the revenues
therefrom, and/or Lessor in substitution for and/or in addition to Real Estate
Taxes presently levied or imposed on immoveables in the city, town or
municipality in which the Building and Land are situated, then any such new
tax
or levy shall be included within the term “Real Estate Taxes” and the provisions
of this section 8.17 shall apply mutatis mutandis. If the competent authority
shall at any time eliminate any tax, rate, assessment or imposition which
composed part of Real Estate Taxes for the Lease Year, Lessor may eliminate
same
from the Real Estate Taxes .for the Lease Year for purposes of application
of
this clause. However, Lessor shall not eliminate same in the event that any
new
tax or levy shall have been imposed in lieu of or in replacement of the tax,
rate, assessment or imposition so eliminated and such new tax or levy shall
have
been included in such year in calculating Real Estate Taxes pursuant to the
preceding sentence.
The
amount of the Real Estate Taxes which shall be deemed to have been levied or
imposed with respect to the Building and the Land shall be such amount as the
legal authority imposing Real Estate Taxes shall have attributed to the Building
and the Land respectively or, in the absence of such attribution, or, if such
legal authority shall include immoveables other than the Building and the Land
in imposing such Real Estate Taxes, such amount as Lessor in the exercise of
its
reasonable judgment shall establish.
| 8.18 |
Rentable
Area of the Building
|
“Rentable
Area of the Building” for apportionment purposes means the total rentable area
of the Building (as opposed to Common Areas), less the rentable areas of the
eighth floor and of the XxXxxxxx building. The total rentable area for
apportionment purposes is hereby conclusively established between the parties
at
one hundred forty-seven thousand four hundred eighty square feet (147,480)
and
the Lessee acknowledges having received from the Lessor all relevant
explanations prior to accepting such determination of the total rentable area
of
the Building for apportionment purposes.
| 8.19 |
Rentable
Area of the Premises
|
“Rentable
Area of the Premises” means the area expressed in square feet or meters of all
floors of the Premises as calculated and measured from the inside face of all
walls, stores and external windows of the Premises, if any, to the outside
face
of the demising partition separating the Premises from Common Areas and from
the
middle of demising partitions between the Premises and other rentable areas
and
shall include all the inside space, whether occupied or not, by ducts, conduits,
projections or columns, whether structural or not. When an office front is
set
back from the rental line, the said rental line shall be, for all intents and
purposes, considered to be the boundary limit of the rentable area of the
Premises. Lessee declares that it has examined the Premises and that it is
satisfied therewith in every respect including, but not restricted to, its
approximate size and dimensions as they are described in this Lease and in
the
attached Schedule “A”.
9 OPERATING
EXPENSES
| 9.1 |
Lessee’s
Proportionate Share
|
During
each Operating Year the Lessee shall pay to the Lessor as Additional Rent the
Lessee’s proportion of Apportionable Operating Expenses. In case the Lease Year
does not coincide with an Operating Year, Lessee’s share of Apportionable
Operating Expenses for the first and last Operating Year of the term hereof
shall be pro rated on a per diem basis.
| 9.2 |
Estimate
of Lessee’s Proportionate
Share
|
Lessor
may estimate the amount of the Lessee’s proportion of Apportionable Operating
Expenses which Lessee shall pay in advance on the first day of each calendar
month of such Operating Year.
| 9.3 |
Certified
Statements of Operating
Expenses
|
At
the
end of each Operating Year of the term of the Lease, Lessor shall furnish to
Lessee a certified statement of the actual amount of Apportionable Operating
Expenses during such Operating Year and the amount of Lessee’s proportion
pursuant to this article 9, and appropriate adjustments will be made within
thirty (30) days after the delivery of such statement.
| 9.4 |
Revisions
to Certified
Statements
|
Any
such
certified statement and the amounts payable as a result will be subject to
revision based on circumstances discovered anytime after the forwarding of
such
statement.
| 9.5 |
Survival
of Obligations
|
The
obligations of the parties hereto to pay or adjust pursuant to article 9 hereof
shall survive the expiration of the term of the Lease.
10 REAL
ESTATE TAXES
|
10.1
|
The
rent payable during the term of this Lease in respect of each year,
shall
be increased by an amount equal to the Lessee’s proportion of
Apportionable Real Estate Taxes attributable to such year. The Lessee
shall pay to the Lessor as Additional Rent, not later than the tax
due
date, or such other date as may be specified in writing to the Lessee
by
the Lessor (hereinafter referred to as the “Specified Date”) the amount of
such increase in the annual rent.
|
At
the
option of the Lessor, Lessor may at any time and from time to time estimate
the
amount of increased rent as will become payable by Lessee by the tax due date
or
Specified Date, and xxxx Lessee therefor, and in such event Lessee shall pay
to
Lessor the full amount of such estimate in equal monthly instalments commencing
with the first month following such estimate and terminating on the tax due
date
or Specified Date. Such monthly amounts when paid to Lessor shall be available
(without interest) as a credit against Lessee’s obligations to Lessor under this
article 10. If no such adjustment is made in the monthly rent instalments,
the
appropriate adjustment between Lessor and Lessee shall be made within thirty
(30) days of the receipt by Lessee of the certified statement of the auditors
of
Lessor referred hereunder.
Any
such
certified statement and the amounts payable as a result will be subject to
revision based on circumstances discovered anytime after the forwarding of
such
statement.
|
10.2
|
The
Lessee shall pay to the Lessor, as additional rent, its proportion
of any
expenses (including legal, appraisal, administrative and overhead
expenses) incurred by the Lessor in obtaining or attempting to obtain
a
reduction of any real estate taxes; or valuation. For the purposes
hereof,
the Lessee’s proportion shall be identical to the Lessee’s proportion of
apportionable real estate taxes as defined herein and said expenses
shall
be payable accordingly. Real estate taxes which are contested by
the
Lessor shall nevertheless be included for purposes of the computation
of
the liability of Lessee under article 10 provided, however, that
in the
event that Lessee shall have paid any amount of increased rent pursuant
to
this Article 10 and Lessor shall thereafter receive a refund of any
portion of the real estate taxes on which such payment shall have
been
based, Lessor shall pay to Lessee the appropriate portion of such
refund
after deduction of the expenses of securing and distributing the
refund
which have not previously been charged to Lessee as part of apportionable
operating expenses.
|
Lessor
shall have no obligation to contest, object to or to litigate any valuation
or
the levying or imposition of any Real Estate Taxes and may settle, compromise,
consent to, waive or otherwise determine in its discretion any valuation or
Real
Estate Taxes without notice to, consent or approval of Lessee.
The
Lessee hereby agrees that it shall not contest taxes which are levied or imposed
on the Building.
|
10.3
|
Lessee’s
obligation to pay or adjust under this article 10 for the final period
of
the Lease shall survive the expiration of the term of the
Lease.
|
|
10.4
|
If
the period(s) in respect of which Real Estate Taxes are levied or
imposed
is changed in the future by the competent authority, Lessor shall
have the
right, at its sole discretion, to make the appropriate adjustments
with
respect to any increase in Real Estate Taxes, provided Lessee is
not
unduly prejudiced thereby.
|
11 PAYMENT
OF MONIES
| 11.1 |
Payment
|
All
monies payable pursuant to this Lease by Lessee shall be payable immediately
when due without notice or demand and shall be paid to Lessor and/or its
nominees at the head office of Lessor or at such place in Canada as shall be
designated from time to time by Lessor in writing to Lessee. Any amount payable
by Lessee pursuant to this Lease other than Minimum Rent shall be deemed
“Additional Rent”, whether or not the amount is specifically designated as
“Additional Rent”.
| 11.2 |
Currency
|
All
monies payable hereunder shall be payable in legal currency of
Canada.
| 11.3 |
Interest
on Arrears
|
Lessee
shall pay interest compounded monthly on all Minimum Rent or Additional, Rent
under the terms of this Lease and not paid when due at a rate per annum of
six
(6 %) two
(2%)
percentage points in excess of the prime rate quoted by the Bank of Montreal
from time to time to its most preferred commercial borrowers for commercial
demand loans made in Canada. This provision for interest shall not affect any
other remedy which Lessor may have in respect of any failure by Lessee to pay
any instalment of rent when due.
| 11.4 |
Late
Charge
|
| 11.5 |
Right
to Set Off
|
Lessee
shall have no right whatsoever to deduct, set off or compensate any amount
whatsoever from or against any amount payable under the provisions of this
Lease
unless and until authorized to do so by final judgement of a court of competent
jurisdiction.
| 11.6 |
Termination
of Lease
|
Upon
any
termination of this Lease, Lessee shall pay to Lessor such amount as is
estimated by Lessor to represent that portion of the aggregate amount of Real
Estate Taxes and Operating Expenses payable and to become payable by Lessee
in
virtue of articles 5 and 6 hereof, and which have not yet been
paid.
12 BUSINESS,
WATER AND IMPROVEMENTS TAXES
| 12.1 |
Lessee’s
Responsibility
|
Lessee
shall pay all business taxes, water taxes or other similar rates and taxes
which
may be levied or imposed upon the Premises or the business carried on therein,
all other rates and taxes which are or may be payable by Lessee as lessee
and
occupant thereof and on Lessee’s fixtures, equipment and machinery and any and
all taxes that may be levied upon the alterations and/or improvements (as
hereinafter defined in article 15).
| 12.2 |
Reimbursement
of Lessor
|
If
by
law, regulation or otherwise, business taxes and water taxes or other similar
rates and taxes or taxes upon Lessee’s fixtures, equipment, machinery or upon
alterations and or improvements are made payable by Lessor or proprietors,
or if
the mode of collecting such taxes and or rates be so altered as to make Lessor
liable therefor instead of Lessee, Lessee shall repay to Lessor prior to
the due
date, but in any event within seven (7) days after demand upon Lessee, the
amount of the charge imposed on Lessor as a result of such change, and shall
hold Lessor harmless from any cost or expense in respect thereof.
13 UTILITIES
& SERVICES
| 13.1 |
Utilities
|
Lessee
shall be solely responsible for and promptly pay all charges for water, gas,
steam, and any other utility used or consumed in the Premises. Should Lessor
elect to supply the water, gas, steam or any other utility used or consumed
in
the Premises, Lessee shall purchase and pay for the same as Additional Rent
payable on demand at rates not in excess of public utility rates of the same
service if applicable. In no event shall Lessor have any obligation or liability
in connection with the cessation of any service or unavailability or
interruption or suspension of any service(s) or utilities at any time whether
or
not supplied by Lessor.
| 13.2 |
Allocation
of Cost
|
Should
individual meters or apparatus for measurement of consumption for any or
all
utilities consumed in the Premises by Lessee not be provided, Lessor shall,
acting reasonably, allocate the cost of such utilities among such tenants
of the
Building as consume such utilities using as the basis for such allocation
Lessor’s reasonable estimate of the relative rates of allocation by Lessor shall
be final and binding on Lessee, and shall be payable by Lessee as Additional
Rent on demand.
| 13.3 |
Heating,
Air Conditioning
|
Lessor
shall bring to the Premises such air and chilled water as is necessary to
provide comfort for the normal type of office occupancy for a Class A building
during Lessee’s normal business hours.
| 13.4 |
Electricity
|
Lessor
shall supply electrical power to the Premises during the normal business
hours
as established by the Lessor, to a maximum of four (4) xxxxx per square foot,
for which Lessee agrees to pay to Lessor six thousand six hundred dollars
and
ninety-six cents ($6,600.96) per annum to be paid in equal monthly instalments
of five hundred fifty dollars and eight cents ($550.08) in advance on the
first
day of each month during the term of this Lease. Furthermore Lessee agrees
that
its use of electrical current shall never exceed the capacity of the electrical
wiring in and supplying the Premises. If the electrical consumption being
used
by Lessee in the Premises is greater than the capacity of the electrical
wiring,
or should Lessee use the Premises beyond normal business hours as established
by
the Lessor, the Lessor may, at its option, take whatever steps and make whatever
changes Lessor considers appropriate to increase such capacity or provide
such
increased services, and any costs occasioned thereby shall be at Lessee’s sole
expense, or Lessor may compel Lessee to use such consumption within the four
(4)
watt per square foot maximum.
Lessor
shall have the right, at anytime, to verify the connected load in the Premises,
and if the connected load is greater than four (4) xxxxx per square foot
or if
Lessee uses the connected load beyond normal business hours as established
by
Lessor or if the cost of electricity is increased by the producers thereof,
then
Lessee shall pay to Lessor in respect of such increased cost or excess
consumption an amount calculated at. the then current rate per watt, retroactive
to the date of such increased cost or consumption or to he date from which
Lessor determines such increase to have occurred or such excess to have
existed.
Lessee
agrees, as and when necessary, to replace at its expense any fluorescent
tubes,
bulbs or fixtures so as to keep the electrical system within the Premises
in
complete working order at all times.
Any
special wires and conduits for the Lessee’s special equipment shall be supplied
and installed by the Lessee at its own expense.
The
obligation of the Lessor hereunder shall be subject to any rules or regulations
to the contrary of the authority providing electricity or any other municipal
or
governmental authority.
| 13.5 |
Elevators
|
Lessor
shall provide elevator service to the floor of the Building on which the
Premises are situated during normal business days and hours. At least one
(1)
elevator shall be available for operation at all times. Lessee shall have
free
use of the elevators in common with other persons.
| 13.6 |
Cleaning
|
The
Premises shall be cleaned by Lessor, at its expense and according to Building
Standards.
| 13.7 |
Refuse
Disposal
|
Lessee
shall not leave or place any debris or refuse outside the Premises except
as
allowed by Lessor. All ordinary daily refuse or debris shall be removed by
Lessor at its expense. Lessee shall be charged for the cost of removal of
extraordinary refuse or debris.
| 13.8 |
Special
Equipment
|
Nothing
contained in this Lease shall be deemed to create any obligation of Lessor
to
furnish , electricity, heating, air-conditioning or any other service(s)
to
Lessee to the extent these are required by the use in the Premises of special
equipment such as computers or other electrical or similar equipment, or
for the
preservation of perishable goods.
| 13.9 |
Discontinuation
or Modification
|
Lessor
shall be privileged, without liability or obligation to Lessee, to discontinue
or modify any services required of it under this article 13 or elsewhere
in this
Lease, during such time as may be necessary, by reason of accident, or for
the
purpose of effecting repairs, replacements, alterations or
improvements.
14 INSURANCE
| 14.1 |
Increase
in Lessor’s Insurance
|
Lessee
shall not do or permit to be done in or about the Premises, or bring into
or
keep upon the Premises, anything which will in any way affect the fire risk
or
increase the rate of fire or other insurance on the Building. Should the
rate of
any type of insurance on the Building be increased by reason of any violation
of
this Lease by Lessee, Lessor in addition to all other remedies, may pay the
amount of such increase and the amount so paid shall become payable by Lessee
as
Additional Rent on demand. Should any insurance policy on the Building be
cancelled by the insurer by reason of the use and/or occupation of the Premises
or any part thereof by Lessee or by any permitted assignee, sub-lessee,
concessionaire or licensee of Lessee, or by anyone permitted by Lessee to
be
upon the Premises, Lessor may at its option terminate the Lease by leaving
at
the Premises a notice in writing of its intention to do so and thereupon
rent
and other payments for which Lessee is liable hereunder shall be apportioned
and
paid in full to the effective date of termination under such notice, and
Lessee
shall forthwith deliver up vacant possession of the Premises to Lessor and/or
Lessor may at its option, and at the expense of Lessee, enter upon the Premises
and rectify the situation causing such cancellation.
| 14.2 |
Fire
Fighting Equipment
|
Lessee
shall at its expense install and maintain within the premises such fire
extinguishers and other fire fighting equipment, including without limitation,
emergency lighting as is deemed reasonably necessary or desirable by Lessor
or
any governmental or insurance body. If so required by Lessor or any such
body,
Lessee shall appoint a warden to coordinate with the fire protection facilities
and personnel of Lessor.
| 14.3 |
Required
Insurance Coverage
|
Lessee
agrees to take out and keep in force during the term of this Lease:
|
14.3.1
|
general
liability insurance with respect to the business carried on in
or from the
Premises and the use and occupancy thereof of not less than two
million
dollars ($2,000,000.00) for each occurrence, or such higher limits
as
Lessor may reasonably require from time to time in respect of bodily
injury to or death of one or more persons and loss or damage to
the
property of others;
|
|
14.3.2
|
all-risks
insurance including the perils of fire, extended coverage in respect
of
furniture, equipment, inventory, stock in trade, fixtures and leasehold
improvements located within the Premises and in respect of such
other
property located in or forming a part of the Premises, as Lessor
may
reasonably require from time to time, in amounts not less than
the full
replacement cost in each case;
|
|
14.3.3
|
Lessee
agrees to repair and/or replace all glass and plate glass of the
Premises
if such glass or plate glass be damaged, except if such damage
be caused
by Lessor, its employees or agents, in which event such glass or
plate
glass shall be repaired and/or replaced by
Lessor.
|
|
14.3.4
|
any
additional insurance as Lessee or Lessor, acting reasonably, may
require
from time to time.
|
| 14.4 |
Failure
to Insure
|
The
insurance required under article 14.3 shall be effected with insurers and
upon
terms anal conditions satisfactory to Lessor. Certificates of the required
insurance shall be furnished to Lessor by Lessee promptly upon issuance of
such
insurance policies. In the event that Lessee fails to insure or fails to
furnish
to Lessor certificates of insurance as herein required, Lessor may effect
such
insurance for the benefit of Lessee or Lessor, or both of them, for a period
not
exceeding one year, and any premium paid by Lessor shall be recoverable from
Lessee as Additional Rent on demand. Furthermore, as an alternative to the
foregoing, Lessor may choose to terminate the Lease as in the manner provided
in
article 17.2 of this Lease.
15 ALTERATIONS,
REPAIRS, IMPROVEMENTS
| 15.1 |
Care
of Premises
|
|
15.1.1
|
Notwithstanding
the provisions of the Civil Code of Quebec or any other legislation
concerning maintenance or repairs, Lessee shall, at all times,
maintain,
repair (including grosses réparations), replace, and keep the Premises,
including all improvements, furniture, fixtures, equipment and
plate glass
in good repair, order and condition. Lessee shall give Lessor prompt
written notice of any damage whatsoever to the Premises or Building.
Should Lessee fail to maintain and repair the Premises, Lessor,
after
giving written notice of at least five (5) days to Lessee, shall
have the
right to effect such maintenance or repair, and all costs so incurred
by
Lessor shall be payable by Lessee as Additional Rent on demand.
At the
termination of this Lease, Lessee shall deliver the Premises to
Lessor in
as good order and condition as at the commencement of this Lease,
broom
clean, trash free, reasonable wear and tear
excepted.
|
|
15.1.2
|
Notwithstanding
anything to the contrary contained in Section 15.1.1, Lessee shall
not be
responsible for any repairs attributable or relating to inherent
structural defects or weaknesses of the Building and/or structural
repairs
of the Building.
|
| 15.2 |
Improvements,
Repairs, Alterations,
Installations
|
|
15.2.1
|
Lessee
shall not make any improvements, repairs, alterations or installations
to
the Premises or any part of the Building, without the prior written
consent of Lessor. All changes, alterations, additions and improvements
made to or installed upon or in the Premises (save any trade fixtures)
and
which in any manner are attached in, to, or under the floors, walls
or
ceilings (including without limitation, all lighting installations
such
as, without restriction, spotlights and tracks, and all floor finishes
of
whatever nature placed upon the floor of the Premises), partitions,
counters, doors, any components of the heating, ventilation and
air
conditioning system, shall become the property of the Lessor on
the date
they are installed within the Premises, and will be surrendered
to Lessor
upon the termination of this Lease without compensation therefor.
All such
alterations, repairs, improvements and installations shall be done
at
Lessee’s expense by such contractor(s) as Lessee may select and Lessor
approve, such approval not to be unreasonably withheld. Lessor
shall also
have the right to have any such work supervised by its architects,
contractors and workmen, and Lessee agrees to pay for all such
coordination charges for all improvements, repairs, alterations
or
installations to the Premises at a fee of five percent (5%) of
all charged
construction costs. Said
5% fee shall only apply and be payable with respect to projects
or works
with total costs exceeding $3000.00. All other projects shall require
the
consent of the Lessor but the said 5% fee shall not apply
thereto.
|
|
15.2.2
|
In
the event that any contractor is not fully unionized, or is causing
or in
hr’s reasonable opinion is likely to cause labour trouble in the Building,
Lessor shall have the right to require that such contractor cease
or
refrain from doing any work in the Premises and upon receipt of
written
notice from Lessor, Lessee agrees to disallow such contractor from
entering the Premises. Lessor shall also have the right to require
that
any contractor carry property damage and public liability insurance in the
amount of not less than one million dollars ($1,000,000.00) for
its
operation in the Building.
|
|
15.2.3
|
Notwithstanding
any provision of this Lease to the contrary, the Lessor reserves
the right
at any time and from time to time to change, alter, modify, or
expand the
Building and/or the Land as the Lessor in its sole discretion deems
necessary including, without limitation, the right of the Lessor
to modify
the exterior walls of the Building. In the event that such work
is
undertaken by the Lessor, the Lessee hereby waives and renounces
to any
and all claims which may result as a consequence of the
foregoing.
|
|
15.2.4
|
The
Lessee shall, at its expense, install Venetian or vertical blinds
in
accordance with the Building’s standards and colours on any and all
existing or newly installed exterior windows of the Premises, if
any. The
Lessee hereby undertakes to use the blinds at all times so as to
prevent
exterior views of unsightly items or areas located within the Premises
such as boxes, storage areas, and related items or areas. The Lessee
also
undertakes to use the said blinds during hot or sunny periods so
as to
prevent solar heat build-up within the Premises which may result
in undue
strain on the air-conditioning system of the Premises and/or .the
Building.
|
| 15.3 |
Legal
Hypothecs, Privileges and
Liens
|
The
Lessee shall promptly pay all charges incurred by it or on its behalf for
any
work, materials, or services which may give rise to a legal hypothec, privilege
or other encumbrance being registered against any portion of the Building,
and
to require all contractor(s), prior to entering the Premises, to furnish
to
Lessor a waiver and release of privileges or rights of privileges.
|
15.4
|
Property
of Lessor
|
Subject
to the provisions of article 15.2 hereinabove, if so required by Lessor,
Lessee
shall at its cost and at the termination date of this Lease or any renewal
or
extension thereof, remove any such alterations, repairs, or improvements
from
the Premises and repair any damage to -the Premises caused by such removal.
Lessee’s obligations under this article 15.4 shall survive the expiration of the
term or earlier termination of this Lease. The provisions of Article 1891
of the
Civil Code of Quebec shall not apply to this Lease.
16 ASSIGNMENT
AND SUBLETTING
| 16.1 |
Consent
Required
|
The
Lessee shall not, on pain of nullity, assign this Lease or sublet the Premises
or any part thereof or allow the Premises or any part thereof to be used
by
another without the prior written consent of the Lessor, which consent shall
not
be unreasonably withheld. The Lessor’s refusal of consent shall be deemed
reasonable (without in any way restricting the Lessor’s right to refuse its
consent on other reasonable grounds) where the assignee or sublessee proposed
by
the Lessee is then a tenant of the Building and the Lessor has suitable
space for rent in the Building; or where the intended use of the Premises
by the
proposed assignee or sublessee conflicts with rights granted other tenants
or
occupants of the Building, or where the proposed assignee or sublessee does
not
intend to bona fide physically occupy and carry on business from the Premises,
or when the proposed assignment or sublease is made prior to the Lessee
physically and bona fide occupying and carrying on business from the Premises.
The consent of the Lessor to any such assignment, sublease or use shall not
be
deemed to permit any further assignment, sublease or use by
another.
| 16.2 |
Lessee
to Furnish Information
|
The
Lessee agrees to provide the Lessor, in writing, with the name, address,
nature
of business and credit references in respect of the proposed assignee or
sublessee, all information relating to the proposed assignment or sublease
as
well as such other information as the Lessor shall reasonably request, at
least
sixty (60) days prior to the date same is proposed to become
effective.
| 16.3 |
Lessor’s
Rights
|
|
16.3.1
|
The
Lessor shall, within thirty (30) days following receipt of the
Lessee’s
written request for consent and all of the information required
by article
16.2 notify the Lessee in writing
either:
|
|
i.
|
that
it grants its consent to the proposed assignment or
sublease;
|
|
ii.
|
that
if refuses to grant its consent to the proposed assignment or sublease
for
the reasons set forth in the said notice;
or
|
|
iii.
|
that
it elects to terminate this Lease in preference to granting or
refusing
its consent to the proposed assignment or sublease, and without
having to
justify its election.
|
|
16.3.2
|
Should
the Lessor consent to the assignment or sublease, the consent shall,
in
addition to any other conditions, be subject to the
following:
|
|
i.
|
Lessee
shall remain jointly and severally responsible with the assignee
or
sublessee for the fulfillment of all obligations of Lessee under
this
Lease, or any extension or renewal thereof, the whole without novation
or
derogation of any kind, and without benefit of division and
discussion;
|
|
ii.
|
The
document effecting the assignment or sublease shall be prepared
by
Lessor’s attorney(s), and all costs of processing the application for
consent, which cost is presently estimated at two hundred and fifty
dollars ($250.00), including any credit reports, preparation and/or
negotiation of any documentation, will be paid for by Lessee prior
to the
date the assignee or sublessee commences to occupy the Premises
or part
thereof;
|
|
iii.
|
All
amounts payable by Lessee pursuant to this Lease up to the effective
date
of the assignment or sublease must be paid in full prior to Lessor
executing the document effecting the assignment or sublease. Where
any
such amounts cannot be fully determined at that time, Lessee will
deposit
with Lessor an amount reasonably estimated by Lessor to cover such
undetermined amounts, to be held by Lessor, without any liability
for
interest thereon, until the estimated amounts become fully determined
by
Lessor, at which time the appropriate adjustments will be
made.
|
| 16.4 |
Lessor’s
Conditions
|
|
16.4.1
|
Should
the Lessor elect to terminate this Lease, the termination shall
be
effective on the date stated in the Lessor’s notice of termination, which
shall be the last day of a month not less than thirty (30) days
nor more
than one hundred twenty (120) days following the delivery of such
notice.
|
|
16.4.2
|
Under
no circumstances will: (i) the mere occupation of all or part of
the
Premises by any proposed assignee or sublessee or Lessor’s tolerance
thereof, (ii) the payment of rent or other amounts by any proposed
assignee or sublessee to Lessor, or (iii) the consent to any previous
assignment or sublease, constitute a waiver of any obligation of
Lessee to
obtain consent to any assignment or sublease, nor will any of the
foregoing be construed as constituting a consent to the proposed
assignment or sublease.
|
|
16.4.3
|
Nevertheless,
whether or not Lessor consents to any assignment or sublease it
may
collect rent or other amounts from any assignee or sublessee or
proposed
assignee or sublessee and apply the net amount collected to the
rental
payable under the Lease, without in any manner prejudicing any
of its
rights under this Lease.
|
| 16.5 |
Deemed
Sublease
|
If
at any
time effective control of the Lessee is acquired or exercised by any person
or
persons not having effective control of the Lessee on the date of execution
of
this Lease, the same shall be deemed to constitute a sublease subject to
all of
the provisions hereof unless said control is so acquired or exercised by
a party
or group of parties who intend to continue operating the Lessee from the
Premises in a manner which shall be substantially the same as before the
said
change in control. In such event, Lessee shall advise Lessor of the changes
which are to take place at least thirty days in advance but Lessor’s approval or
consent thereto shall not be required.
| 16.6 |
Advertising
|
The
Lessee will not advertise the Premises for the purpose of any assignment
or
sublease without obtaining the prior written approval of the Lessor to the
proposed text, such approval not to be unreasonably withheld. In no event
will
the rental rate appear in any advertisements.
| 16.7 |
Lessor’s
Right of First Refusal
|
|
16.7.1
|
As
a condition precedent to any assignment of this Lease or subleasing
of the
whole or any part of the Premises:
|
|
i.
|
Lessee
shall indicate to Lessor the bona fide and the specific terms and
conditions of such proposed assignment or sublease,
and
|
|
ii.
|
Lessee
shall first offer to assign or sublease as the case may be, to
Lessor on
the same terms and conditions and for the same rental as provided
for in
this Lease.
|
|
16.7.2
|
Lessor
shall have a period of thirty (30) days in which to accept the
offer
referred to in article 16.7 and if not so accepted, Lessee shall
have a
period of sixty (60) days thereafter in which to assign or sublease
on
obtaining the prior written consent of Lessor as hereinabove provided
to
the party and in accordance with the terms and conditions so indicated
to
Lessor.
|
|
16.7.3
|
In
the event that Lessee does not assign or sublet within such sixty
(60) day
period, Lessor’s consent to such assignment or sublease shall be deemed
null and void and Lessee shall not be permitted to assign or sublet
without again conforming to all of the express provisions
hereof.
|
| 16.8 |
Change
of Control
|
If
Lessee
is a corporation or a partnership then:
|
i.
|
where
it is a corporation, any change in its effective voting control
from that
existing on the date the corporation first incurred any obligations
to
Lessor pursuant to this Lease; and
|
|
ii.
|
where
it is a partnership, any change in the person(s) composing the
partnership
from that existing on the date the original person(s) first incurred
any
obligations to Lessor pursuant to this
Lease;
|
will
be
considered a sublease for the purposes of this article 16 unless said changes
bring to Lessee a party or group of parties who intend to continue operating
the
Lessee from the Premises in a manner which shall be substantially the same
as
before the said changes. In such event, Lessee shall advise Lessor of the
changes which are to take place at least thirty days in advance but Lessor’s
approval or consent thereto shall not be required.
| 16.9 |
No
Bonus Value
|
It
is the
intent of the parties hereto that this Lease shall confer upon Lessee only
the
right to use and occupy the Premises, and, to exercise such other rights
as are
conferred upon Lessee by this Lease. The parties agree that this Lease is
not
intended to have a bonus value, nor to serve as a vehicle whereby Lessee
may
profit by a future transfer of this Lease, or as a result of any favourable
terms contained herein or any future changes in the market for leased space.
It
is the intent of the parties that any such bonus value that may attach to
this
Lease shall be and remain the exclusive property of Lessor.
| 16.10 |
Sale
of Business by Lessee
|
Notwithstanding
any provision hereinabove to the contrary, the Lessee shall be permitted
to
assign this Lease or sublet the whole of the Premises or any part thereof
or
allow the Premises or any part thereof to be used by another and the Lessor
shall not be entitled to withhold its consent thereto provided:
|
a]
|
such
sublet or assignment is required to give effect to the sale of
all or of a
substantial portion of Lessee’s assets as part of the sale by Lessee of
all or a substantial part of its business to the sublessee or
assignee;
|
|
b]
|
Lessor
is advised of the impending sale at least thirty (30) days prior
to its
expected consummation;
|
|
c]
|
said
notice contains all information about the transaction and the prospective
sub-lessee which the Lessor may require to properly evaluate the
financial
strength of such third party as an occupant of the Building;
and
|
|
d]
|
such
third party intends to continue operating the business of Lessee
in the
Premise’s in accordance with the permitted use requirements of this Lease
and to otherwise respect all other provisions of this
Lease.
|
If
all of
the foregoing conditions are respected in full and the financial strength
of the
third party are acceptable to Lessor acting reasonably, the Lessor shall
consent
to such sublet in writing and this Lease shall continue in force on that
basis.
17 DEFAULT
OF LESSEE AND REMEDIES OF LESSOR
| 17.1 |
Arts
of Default
|
The
following events shall be a default under this Lease:
| 17.1.1 |
If
Lessee fails to pay, on the day appointed for its payment,
Minimum Rent or
Additional Rent or any installments thereof, which the Lessee
under any
provision of this Lease is obliged to pay, and such default
continues for
more than five (5) business days after written notice from
Lessor to
Lessee specifying such
default.
|
|
17.1.2
|
If
Lessee fails to perform any obligation under this Lease other than
the
payment of the Minimum Rent, or Additional Rent, and such default
continues for (10) days after written notice thereof from Lessor
to Lessee
specifying such default;
|
|
17.1.3
|
If
Lessee makes a general assignment for the benefit of its creditors,
or if
Lessee is declared bankrupt, or if a petition in bankruptcy is
filed
against Lessee, or if Lessee files an assignment in bankruptcy
or makes a
proposal to its creditors or takes or attempts to take advantage
of any
legislation for the relief of bankrupt or insolvent debtors, or
if any
execution is levied vied against Lessee, or if any encumbrancer
of
Lessee’s interest shall take any action to enforce its security, unless
such execution or enforcement proceeding be set aside, discharged
or
abandoned within seven (7) days;
|
|
17.1.4
|
If
any order shall be made for the dissolution, liquidation or winding-up
of
Lessee or other termination of the corporate existence of
Lessee;
|
|
17.1.5
|
If
Lessee makes or attempts to make any bulk sale of merchandise in
the
Premises; or if Lessee removes or attempts to remove from the Premises
a
substantial part of its stock in trade, furniture or improvements,
other
than in the normal course of business; or if Lessee suffers to
exist,
creates or incurs any charge, lien or encumbrance whatsoever on
any of the
moveable effects situated in the Premises; or if a receiver, trustee,
manager or any official having similar power be appointed or assume
direction with respect to Lessee of any portion of its business
affairs or
property; or if the estate of Lessee be transferred, pass to, or
devolve
upon any other person by operation of law provided that nothing
herein
contained shall apply to the sale by Lessee of all or of a substantial
portion of its assets as part of the sale of all or of a substantial
portion of its business;
|
|
17.1.6
|
If
Lessee fails to take possession of the Premises or if Lessee vacates
or
abandons the Premises for five (5) consecutive
days.
|
| 17.2 |
Remedies
of Lessor
|
|
17.2.1
|
In
the event of any default by Lessee, Lessor shall have the right
to
terminate this Lease upon notice in writing to Lessee who hereby
agrees in
advance that the Lease be so terminated and/or cancelled. In the
event of
such notice, this Lease shall terminate at noon on the third tenth
(10th)
business day following the date such notice is given, without the
necessity of any other “mise en demeure” or legal process whatsoever
unless Lessee contests said cancellation by formal proceedings
filed in
good faith before a court of competent jurisdiction prior to the
expiration of the said 10-day delay. If no such proceedings are
filed,
Lessee shall thereupon quit and surrender the Premises to Lessor,
or if
not yet in possession, Lessee shall no longer have any right to
possession
of the Premises. Lessor, its agents and servants shall have the
right to
enter the Premises and dispossess Lessee and remove any persons
or
property therefrom and/or may bolt the Premises or change the locks
thereon, any legislation to the contrary notwithstanding, without
the qty
of any legal proceeding whatsoever and without being liable to
Lessee
therefor in damages, or otherwise. As of the date the Lessor notifies
Lessee that it has terminated this Lease, Lessor shall ipso facto
and
automatically become the absolute owner of all moveables then situated
within the Premises, including all stock in trade, furniture, and
any
other effects of any nature
whatsoever.
|
|
17.2.2
|
Where
the Lease is terminated under this article, Minimum Rent, Additional
Rent
and all other charges, for the then current month and each subsequent
month to the original expiry date of the Lease, shall immediately
become
due and payable, the whole without prejudice to Lessor’s right to claim
from Lessee all costs, expenses and damages incurred by Lessor
as result
of the early termination of this
Lease.
|
|
17.2.3
|
In
the case of termination resulting from bankruptcy or insolvency,
Lessor
will, in addition to all its other rights, remedies, and. recourses,
be
entitled to the equivalent of three (3) months Minimum Rent, Additional
Rent and other charges then payable on a monthly basis, as accelerated
rent.
|
| 17.3 |
Lessor’s
Cumulative Rights
|
The
exercise by Lessor of any right it may have hereunder or by law shall not
preclude the exercise by Lessor of any other right it may have hereunder
or by
law.
18 DAMAGES
| 18.1 |
Acts
of Lessee
|
Lessee
shall be responsible for all damages or injury suffered by Lessor, its officers,
employees, servants, agents, invitees or co-tenants and for all damages to
the
Building or Premises, caused by the act or neglect of Lessee, its officers,
employees; servants, agents, visitors or licensees for whom Lessee is
responsible.
| 18.2 |
Limitation
of Lessor’s Liability
|
|
18.2.1
|
Lessor
shall not, under any circumstances, be liable in respect of any
loss,
injury or damage suffered by Lessee or any other person nor shall
Lessee
be entitled to any diminution of rent as a result of any of the
following
occurrences unless attributable to a default of Lessor, its officers,
employees, servants or agents:
|
|
i.
|
loss
or damage to property of Lessee by theft, accident or any other
cause;
|
|
ii.
|
injury
or damage to persons or property resulting from fire, explosion,
falling
plaster, escaping steam or gas, electricity, water (including sewer
backup), rain, snow or leaks from any part of the Premises, or
from any
pipes, appliances or plumbing work therein, or from
dampness;
|
|
iii.
|
damage
to the property of Lessee or a diminution in Lessee’s enjoyment of the
Premises caused by the acts or activity of any third person including
any
other tenant in the Building, or by any person in the Premises,
or by the
construction of any private or public
work;
|
|
iv.
|
loss
or damage arising out of any delay in the finishing of the Premises,
or
the interruption or modification of any service or facility to
be provided
by Lessor under the terms of this Lease, caused or required by
maintenance, repairs, strikes, riots, labour controversies, accidents,
fuel shortages, acts of God or the Queen’s enemies, fire or other
casualty, force majeure, cas fortuit or other cause beyond Lessor’s
reasonable care and control. Lessor undertakes, however, to take
all
reasonable steps to remove the cause of such interruption with
due
diligence;
|
|
v.
|
loss
or damage which is indirect or
consequential.
|
|
18.2.2
|
Lessee
agrees that it shall not have any right whatsoever to deduct, set
off or
compensate any amount in respect of any loss, injury or damage
suffered by
Lessee for any cause described in paragraphs a), b), c), d) or
e) from or
against the rent payable under the terms of this
Lease.
|
19 FIRE,
DESTRUCTION OF PREMISES
| 19.1 |
Total
Destruction
|
|
19.1.1
|
If
the Premises are totally destroyed or rendered substantially or
wholly
untenantable by fire or other cause and Lessor shall decide not
to rebuild
or restore the Premises, or if the Building is so damaged that
Lessor
shall decide. not to rebuild or restore same (whether or not the
Premises
are damaged), Lessor shall have the right within
|
|
19.1.2
|
If
on the contrary Lessor shall decide to restore or rebuild the Premises
or
Building, as the case may be, Lessor shall so notify Lessee within
|
|
19.1.3
|
If
the Lessor notifies the Lessee that a period longer than ninety
(90) days
is required to effect such repairs, then either party has the right
.to
declare this Lease cancelled as of the date of damage or destruction,
provided that a written notice to that effect be given to the other
party
within fifteen (15) days from reception of the notice concerning
the
estimated period of repairs. In order for Lessee to exercise his
right to
cancel this Lease under this clause, Lessee must not be in arrears
towards
Lessor for any payments under this Lease, nor for costs, damages
or rent
as herein provided.
|
|
19.1.4
|
If
neither the Lessor nor the Lessee has exercised his right to cancel
this
lease the lease shall continue and Lessee’s liability for rent shall be
abated in proportion to the time and part of the premises which
have been
rendered untenantable, provided Lessee shall not be liable towards
Lessor
for the payment of costs, damages or
rent.
|
| 19.2 |
Fault
of Lessee
|
Deleted.
20 EXPROPRIATION
| 20.1 |
Expropriation
|
Both
Lessor and Lessee agree to cooperate with each other in respect of any
expropriation of all or any part of the Premises or the Building so that each
may receive the maximum award to which each is respectively entitled by law.
If
the whole or any part of the Premises, or the whole of the Building, or so
much
thereof as shall, in the opinion of Lessor, render it commercially undesirable
to continue operation of the Building, be expropriated, condemned or taken
by
any competent authority for any purpose whatsoever, Lessor shall have the
right
at its discretion to terminate this Lease upon notice in writing to Lessee
of at
least thirty (30) days. Lessee shall have no claim in damages or otherwise
against Lessor relating to or arising out of the expropriation or condemnation,
or arising out of the cancellation of this Lease, nor shall Lessor be obliged
to
contest any expropriation proceedings.
21 TERMINATION
Of LEASE
| 21.1 |
Effective
Date of Termination
|
|
21.1.1
|
this
Lease shall terminate on the termination date stipulated in article
3.
|
|
21.1.2
|
Should
the Lessee remain in occupation of the Premises after the expiration
of
the present Lease without having executed a new written Lease with
the
Lessor, such holding over shall not constitute a renewal or extension
of
this Lease. In such event the Lessee shall be deemed to be occupying
the
Premises as a tenant from month to month, at a monthly rental payable
in
advance on the first day of each month equal to one-twelfth (1/12)
of the
aggregate of four (4) times the Minimum Rent, and other charges
payable in
the last twelve month period contained in the term, the whole without
prejudice to all other rights and recourses of Lessor as a result
of
Lessee’s failure to vacate the Premises. In addition to the foregoing,
the
Lessor shall be entitled at the expiration of the Lease to enter
into and
recover possession of the Premises by any means whatsoever, to
the
complete exoneration of the Lessee.
|
| 21.2 |
Abandonment
of Property
|
Subject
to the provisions of article 15.4, Lessee shall remove all its property from
the
Premises at the termination date of this Lease. Any property belonging to
Lessee
or any other person which is left in the Premises after the termination date
shall be deemed to have been abandoned, the whole without prejudice to Lessor’s
right to claim from Lessee all expenses, losses and damages caused by Lessee’s
failure to remove such property as required herein.
22 SECURITY
| 22.1 |
Moveable
Effects
|
Lessee
agrees to furnish the Premises with and maintain therein at all times during
the
term of this Lease moveable effects which are owned by Lessee and fully paid,
having a value equivalent to a minimum of twelve (12) months’ rent.
| 22.2 |
Privilege
of Lessor
|
Notwithstanding
article 17.1 if the Lessee creates or incurs any charge, lien, hypothec or
encumbrance whatsoever on -any of the moveable effects or equipment situated
in
the Premises, said Lessee shall obtain a release of any such charge, lien,
hypothec or encumbrance within five (5) days after being so requested to
do so
by the Lessor. Failing which, the Lessee hereby agrees to provide Lessor
with a
bank guarantee or any other security acceptable to Lessor, having a value
equivalent to at least twelve (12) months’ rent and for the period of time
during which said moveable effects and equipment will be applied by such
charge,
lien, hypothec or encumbrance.
| 22.3 |
Moveable
Hypothec
|
|
22.3.1
|
As
continuing and collateral security for the due and punctual payment
of
Minimum Rent, Additional Rent and all other amounts now owing or
which may
hereafter become owing to the Lessor by the Lessee under this Lease,
as
same may be amended, renewed, extended or supplemented, and as
continuing
and collateral security for the due and punctual performance and
fulfilment of all other obligations, covenants and agreements of
the
Lessee contained in this Lease, as same may be amended, renewed,
extended
or supplemented (all of said Minimum Rent and other amounts and
the said
other obligations, covenants and agreements being hereinafter collectively
referred to as the “Indebtedness”), the Lessee hereby hypothecates in
favour of the Lessor, with effect as of and from this date, for
the sum
of one
hundred thousand dollars ($100,000.00) and interest thereon at
the rate of
interest per annum that is six (6) percentage points more than
the prime
rate of interest of the Bank of Montreal, calculated semi-annually,
not in
advance, all of the rights, title and interests of the Lessee in
and to
the following universalities (hereinafter referred to as the
“Universalities”):
|
|
i.
|
the
universality of all moveable improvements, equipment, machinery,
furniture
and trade fixtures of every kind, present and future, located in,
on or
upon the Premises or used directly or indirectly in connection
with the
business of the Lessee carried on at the Premises, including all
indemnities or proceeds paid under insurance contracts or policies
pertaining to or covering such moveables;
and
|
|
ii.
|
the
universality of all property in stock, raw material, work in process
and
inventory, present and future, situated in, on or upon the Premises
or
used directly or indirectly in connection with the business of
the Lessee
carried on at the Premises, including all indemnities or proceeds
paid
under insurance contracts or policies pertaining to or covering
such
moveables.
|
|
22.3.2
|
The
hypothec herein created in favour of the Lessor shall not constitute
nor
be construed as a floating hypothec under article 2715 of the Civil
Code
of Quebec.
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22.3.3
|
The
security hereby created is without delivery and shall, subject
to articles
2673, 2674 and 2734 of the Civil Code of Quebec, not prevent the
Lessee at
any time and from time to time, until an event of default has occurred
under this Lease and the security hereby constituted shall become
enforceable, from selling, leasing or otherwise disposing of or
dealing
with its inventory in the ordinary course of its business and for
the
purposes of carrying on the same, provided that such inventory
be
forthwith replaced with inventory of equal or greater value and
quality.
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22.3.4
|
Upon
the occurrence of an event of default, the security hereby constituted
shall become enforceable and the Lessor shall forthwith be entitled
to
exercise any and all of the rights provided for in Chapter V of
Title III
of Book VI of the Civil Code of Quebec and in the Code of Civil
Procedure
of Quebec. In exercising any of the rights and recourses available
hereunder or at law, the Lessor may, in respect of all or any part
of each
of the Universalities, exercise such rights and recourses as is
available
hereunder or at law, as it chooses to exercise, without prejudice
to its
other rights and recourses in respect of all or part of each of
the other
Universalities. Furthermore, the Lessor may exercise any of its
rights and
recourses in respect of all or any part of each of the Universalities,
simultaneously or successively.
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22.3.5
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Notwithstanding
anything herein to the contrary, the Lessor shall permit or consent
to the
registration of a prior ranking hypothec created in favour of any
reputable person in order to secure financing obtained from such
person by
Lessee in Lessee’s normal course of
business.
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23 ACCESS
TO PREMISES
| 23.1 |
To
Examine or Exhibit
Premises
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|
23.1.1
|
Lessor
may, at any time and upon reasonable notice to Lessee, enter the
Premises
to examine or exhibit same, to make alterations or repairs or for
any
purpose which Lessor considers necessary for the operation or maintenance
of the Building or its equipment.
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23.1.2
|
During
the last six (6) months of the term of this Lease, Lessee shall
allow the
Premises to be exhibited by Lessor to persons interested in leasing
the
Premises.
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| 23.2 |
To
Install Equipment
|
Lessee
shall permit Lessor to install and maintain in the Premises whatever is
necessary or useful for the equipment, use or convenience of the Building
or its
tenants, provided Lessee’s enjoyment of the Premises is not unduly interfered
with.
24 COMPLIANCE
WITH LAWS AND INDEMNIFICATION
| 24.1 |
Compliance
|
Lessee
shall promptly, at its expense, throughout the term of this Lease execute
and
comply with all rules and regulations of any Fire, Police and Health
Departments) and all rules, regulations, by-laws and ordinances of any
governmental authority or other agency having jurisdiction over the Premises
or
the business conducted therein.
| 24.2 |
Indemnification
of Lessor
|
Lessee
agrees that it will indemnify and hold Lessor harmless against any penalty
or
fine imposed for any violation of any law, by-law or regulation by Lessee
or
those for whom Lessee is in law responsible and that it will protect, indemnify
and hold Lessor harmless against all damages and expenses arising out of
any
accident or occurrence on/or about the Premises causing injury or death to
any
person, or damage to property, and against all damages and expenses arising
out
of the failure of Lessee to comply with any provision of this
Lease.
25 MORTGAGES,
SALE OF BUILDING
| 25.1 |
Lessor’s
Right to Assign
|
Lessor
or
the owner(s) of the Building shall have the right to assign this Lease to
a
lending institution as collateral security for a loan, and in the event that
such an assignment is given and executed by Lessor or the owner(s) .and
notification is given thereof to the Lessee, this Lease shall not be cancelled
or modified for any reason whatsoever, without the written consent of such
lending institution, except as provided for, anticipated, or permitted by
the
terms of this Lease or by law. Lessee agrees that it will, if and whenever
reasonably required by Lessor, at Lessor’s expense, consent to and become a
party to any instrument(s) permitting a mortgage, trust deed or hypothec
to be
placed on the Building or Premises or any part thereof as security for any
indebtedness covered by the trust deed, mortgage or hypothec; and Lessee
agrees,
in such event, to subordinate this Lease to the trust deed, mortgage or
hypothec.
| 25.2 |
Sale
or Transfer of
Building
|
In
the
event of any sale or transfer of the Building, or the making of any lease
thereof, or the sale or transfer or assignment of any such lease and provided
that the transferee, acquirer or lessee assumes and agrees to carry out all
the
obligations of Lessor under this Lease to Lessor’s exoneration, then without
further agreement between the parties, or between the parties and the transferee
or acquirer, Gelprim Inc., as Lessor, shall be relieved of all its obligations
under this Lease and Lessee shall thereafter be bound to such transferee,
acquirer or lessee as the case may be, with the same effect as though the
latter
had been Lessor under this Lease.
26 PRIOR
OCCUPANCY
| 26.1 |
Prior
Occupancy
|
In
the
event Lessor permits Lessee to occupy or gain access to the Premises prior
to
the commencement date of the term of this Lease, all terms and conditions
of
this Lease shall have effect and apply to such occupation.
27 RELOCATION
| 27.1 |
Relocation
of Lease
|
Lessee
agrees that, notwithstanding anything to the contrary contained herein, should
Lessor wish to relocate the Lessee to other premises to
effect a] major repairs to the Building, the Premises, or any parts thereof,
or
b] any structural changes to the Building, the Premises, or any parts thereof
which are required to give effect to any applicable law or
regulation,
Lessor
shall have the right to so notify Lessee in writing at least thirty (30)
days
prior to the date the relocation is, to take effect. In such event, Lessee
shall
have the option of cancelling this Lease (in
which case this Lease shall be cancelled on the relocation date stipulated
in
the said notice from Lessor to Lessee)
or of
being relocated to substantially similar space in the Building at Lessor’s
expense. If no such similar space is available in
the Building, Lessor shall, at its expense, relocate the Lessee to and from
substantially similar space in another Class “A” building during the period
required to effect the required work.
In the
event of any such relocation, the rental and other charges for the new area
shall be at the same rate per square foot per year as the rental and other
charges under this Lease, and this Lease shall continue until the end of
the
term stipulated in article 3 hereof.
28 NOTICES
| 28.1 |
Notices
|
Any
notice or demand contemplated by or pertaining to this Lease shall be in
writing
and shall be given by registered or certified mail, telex, telegram. Any
such
notice shall be deemed to have been received when physically delivered to
the
party’s address indicated on the first page of the Lease or as provided in the
next paragraph hereinbelow.
Lessee
elects domicile at the Premises, or at the Court’s Office in Montreal in the
event he should cease to occupy or do business in the said Premises for service
of all notices, writs and/or other legal documents in any suit at law, action
or
proceeding which the Lessor may take to enforce its rights under this
Lease.
29 INTERPRETATION
| 29.1 |
Representations,
Warranties, Prior
Agreements
|
This
Lease constitutes the entire agreement between Lessor and Lessee with respect
to
the Premises leased and may not be modified except by subsequent agreement
in
writing duly signed by Lessor and Lessee. Neither Lessor nor Lessee shall
be
bound by any representations, warranties, promises or agreements not contained
in this Lease.
| 29.2 |
Exclusivity
|
Lessor
shall not be precluded from leasing any other space in the Building to any
other
person carrying on the same or similar business as Lessee.
| 29.3 |
Brokerage
Commission
|
Lessee
warrants that Lessor shall not be held liable for any agent’s or broker’s
commission in connection with acts of Lessee in leasing the
Premises.
| 29.4 |
Governing
Law & Waiver of Civil Code of
Quebec
|
This
Lease shall be governed and interpreted in accordance with the Laws of Quebec.
Should any article or part of an article be illegal or unenforceable under
the
Laws of Quebec, it shall be considered severable and the remainder of the
Lease
shall remain in full force and effect. This Lease shall prevail over any
provision of the Civil Code of Quebec which is inconsistent with the intention
of the parties as expressed herein. All such Civil Code provisions are hereby
deemed to have been expressly waived or set aside by the parties hereto to
the
extent necessary to give effect to any provision of this Lease which provides
differently from the Civil Code in connection with the same matter.
| 29.5 |
Successors
and Assigns
|
All
obligations imposed upon Lessee by this Lease shall be binding upon all heirs,
executors, administrators, successors, assigns, sublessees and encumbrancers
of
Lessee. However, no one, by assignment or otherwise shall enjoy or exercise
such
benefits, unless article 16 has been complied with.
| 29.6 |
Interpretation,
Captions
|
This
Lease shall be read with such changes in number and gender as are appropriate,
according to whether Lessee is an individual male or female, or a partnership,
corporation or association. If there is more than one Lessee, the covenants
herein contained shall be construed as being solidary and each Lessee
acknowledges that it shall have no right to any benefit of division or
discussion.
All,
captions and headings appearing in this Lease have been inserted for ease
of
reference only and in no way define, limit or enlarge the scope or meaning
of
any provision of this Lease.
| 29.7 |
Waiver
|
Failure
of Lessor to insist upon the performance of any covenant or condition of
this
Lease or to exercise any right or option contained in this Lease shall not
be
construed as a waiver or relinquishment of any such covenant, condition,
right
or option. No variation of any covenant or condition of this Lease shall
be
valid unless in writing and signed by duly authorized persons on behalf of
Lessor. The acceptance of rent from or the performance of any obligation
by a
person other than Lessee, shall not be construed as an admission by Lessor
of
any right, tide or interest of such person as sublessee, assignee, transferee
or
otherwise in the place of Lessee.
30 RULES
AND REGULATIONS
| 30.1 |
Acts
of Nuisance
|
Lessee
shall not perform any illegal or dangerous act or carry on any practice which
may either cause damage to the Premises or Building or any user
thereof.
| 30.2 |
Signs,
Advertising
|
Lessee
shall not, without the prior written consent of Lessor, display, inscribe
or
print any sign, notice, advertisement or lettering in or on any part of the
Building, outside the Premises, upon the exterior of the doors of the Premises,
or within the Premises when such sign, notice, advertisement or lettering
is
visible from outside the Premises.
| 30.3 |
Directories
of Listings
|
The
number and style of all.- listings of Lessee on all directories in the Building
shall be at the discretion of the Lessor. Any change of a listing(s) of Lessee
shall be subject to the approval of Lessor and shall be at Lessee’s
expense.
| 30.4 |
Removal
of Furniture, Fixtures
|
Lessee
shall not remove any furniture or fixtures from the Premises without the
prior
written consent of Lessor and only on at least twenty-four (24) hour written
notice to Lessor.
| 30.5 |
Installation
of Floor Covering
|
Lessee
shall not lay linoleum or any other similar floor covering so that the same
shall come in direct contact with the floor of the Premises. The use of cement
or other similar adhesive material is prohibited. Lessee agrees that all
carpeting shall be installed only by means of water soluble adhesive or tackless
strip method.
| 30.6 |
Receiving
of Supplies
|
All
loading and unloading of merchandise, supplies, materials, furniture and
equipment shall only be made through or by means of such doorways, passageways
and elevators as Lessor may designate from time to time.
| 30.7 |
Passages,
Elevators
|
The
passageways, elevators, lobbies and stairways of the Building shall not be
obstructed or used by Lessee, its employees, agents, visitors or licensees
for
any purpose other than the ingress to or egress from the Premises or
Building.
| 30.8 |
Locks
|
Lessee
shall not alter any lock(s) on the exterior doors of the Premises or place
any
additional lock on any door(s) without first obtaining the written consent
of
Lessor, which consent may be conditional on Lessee furnishing to Lessor keys
to
any new lock(s) to be installed. Lessee shall return to Lessor all keys to
the
Premises immediately upon termination of this Lease.
In
the
event any lock to the Premises is changed, and Lessor wishes to enter the
Premises by force, Lessee shall be responsible for the cost of all repairs
and
damages occasioned thereby. All of the foregoing applies equally to all card
access and similar systems used instead of traditional locks and
keys.
| 30.9 |
Cooking
on Premises Prohibited
|
Lessee
shall not xxxx or prepare food on the Premises.
| 30.10 |
Heavy
Objects
|
Safes
and
other unusually heavy objects shall be placed by Lessee only in such places
as
may be approved by Lessor.
| 30.11 |
Canvassing,
Soliciting
|
All
canvassing, soliciting and peddling in the Building is strictly prohibited,
and
Lessee agrees to co-operate with Lessor to prevent same.
| 30.12 |
Animals
|
No
animals shall be brought into the Building without the prior written consent
of
Lessor.
| 30.13 |
Further
Rules and Regulations
|
Lessee
agrees to observe such further reasonable rules and regulations as Lessor
may
from time to time make pertaining to the operation, good, order, reputation,
safety, care or cleanliness of the Building or Premises. Such rules and
regulations shall not, however, be inconsistent with the terms of this Lease
nor
unduly interfere with Lessee’s enjoyment of the Premises.
| 30.14 |
Waiver,
Modification
|
The
Lessor shall have the right to waive or vary such chosen regulations in respect
of any one or more Lessees, and the Lessor shall not be responsible to the
Lessee for the non observance or violation of any of said rules and regulations
by any other Lessees or other person. The provisions of the rules and
regulations shall not be deemed to limit any covenant or provision of this
Lease
to be performed or fulfilled by the Lessee.
| 30.15 |
Publication
of Lease
|
| 30.15.1 |
This
Lease may not be published at length. Lessee may publish a summary
of this
Lease at its expense, provided such summary is approved by Lessor
in
writing prior to publication.
|
| 30.15.2 |
Notwithstanding
sub-section a), if for the purpose of any alienation by Lessor
(voluntary
or involuntary) or for purpose of any secured financing, main-levée of the
publication of the summary is required against immovable property
other
than that upon which the Premises are situated, Lessee will grant
main-levée of such publication to Lessor forthwith upon
request.
|
| 30.15.3 |
Within
thirty (30) days following the expiration of the term or sooner
termination of this Lease, Lessee will cause the summary to be
radiated at
its expense, failing which Lessor will have the right to cause
the summary
to be radiated at Lessee’s expense. This obligation will survive the
expiration of the term or sooner termination of this
Lease.
|
31 SPECIAL
PROVISIONS
| 31.1 |
Finishing
of Premises
|
|
31.1.1
|
Subject
to Section 31.4.3, Lessee acknowledges that it has examined the
Premises
and declares itself to be satisfied that the Premises are in good
condition and Lessee accepts the Premises in the condition in which
they
presently exist.
|
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31.1.2
|
Should
improvements be made to the Premises by the Lessee, Lessee agrees
to
submit to Lessor for approval prior to possession of the Premises
two (2)
sets of working plans clearly indicating Lessee’s intended improvements
and colour chart within the
Premises.
|
31.2 Security
Deposit
|
31.2.1
|
Lessee
has paid Lessor upon the delivery of this Lease the sum of N/A
($N/A) as
security for the full and faithful performance by Lessee of each
and every
term, provisions, covenant and condition of this Lease. If Lessee
defaults
in respect of any of the terms, provisions, covenants and conditions
of
this Lease, including but not limited to payment of rent and Additional
Rent, Lessor may, but shall not be required to, use, apply or retain
the
whole or any part of the security for the payment of any rent and
Additional Rent in default or for any other sum which Lessor may
expend or
be required to expend by reason of deficiency accrue before or
after
summary proceedings or other re-entry by Lessor. If Lessee shall
fully and
faithfully comply with all the terms, provisions, covenants, and
conditions of this Lease, the security, or any balance thereof,
shall be
returned to Lessee after the time fixed as the expiration of the
term and
after the removal of Lessee and surrender of possession of the
demised
Premises to Lessor. Whenever and as often as the amount of security
held
by Lessor shall be diminished by Lessor’s application thereof, Lessee
shall within ten (10) days after Lessor’s request therefor deposit
additional money with Lessor sufficient to restore the security
to its
original amount. Lessee shall not be entitled to any interest on
the
aforesaid security.
|
|
31.2.2
|
Notwithstanding
the foregoing paragraph, and except any agreement to the contrary,
all
security deposited under the terms of the present agreement of
Lease will
be applied to all its renewals, subleases and assignment agreements
or to
any other subsequent agreement of lease executed by the present
parties
for Premises. The Lessor may deliver the security deposit to any
assignee
of Lessor’s interest of this Lease, the Premises or
Building.
|
Thereupon,
the Lessor will be released from any further liability with respect to the
security deposit.
| 31.3 |
Letter
of Credit
|
In
lieu
of depositing the Security Deposit, the Lessee has deposited with the Lessor
an
unconditional and irrevocable Letter of Credit or of Guarantee issued in
favour
of the Lessor by National
Trust Company (the “Letter”), the whole in form, effect and substance
satisfactory to Lessor.
The
Lessor shall have the same rights with respect to the Letter that it would
have
had with respect to the Security Deposit hereunder (including the right to
require payment of the amount stated on the face of the Letter and to apply
such
amount, in whole or in part) and the Lessee shall have the same obligations
with
respect to the Letter (including, without limitation, the obligation of
re-establishing the amount of the Letter to the initial amount hereinabove
specified and, in any case, where the Lessor has required payment of the
amount
stated on the face of the Letter and applied payment thereof, in whole or
in
part) that it would have had with respect to the Security Deposit. The Lessee
agrees to have the Letter renewed or a new letter issued at least forty-five
(45) days prior to the date of expiration of the Letter in force (or any
renewal
thereof), failing which the Lessor will have the right, at its option, to
require and receive payment of the face amount of the Letter as a penalty
for
the .simple delay in the execution of the obligation in question within the
delay prescribed, the whole without notice to the Lessee. The Lessee renounces
to all rights to have the penalty reduced even if the obligations referred
to in
this Section have been-performed in part. It
is understood and agreed that the terms, covenants and conditions hereinabove
set forth in 31.2 and 31.3 shall be null and void and of no effect whatsoever
to
the extent that they conflict with the provisions set forth in the said Letter
or grant to Lessor any rights other than those set forth in the said Letter
or
impose upon Lessee, directly or indirectly, any obligations or liabilities
other
than those provided for in the said Letter; it being the express Intention
of
the parties hereto that the said Letter shall supersede the terms, covenants
and
conditions in sections 31.2 and 31.3 hereof.
| 31.4 |
Special
Conditions
|
| 31.4.1 |
Conditional
Free Rent Period
|
Notwithstanding
the provisions of the Lease, the parties hereby agree that no minimum rent
(article 4), real estate taxes (article 5), operating expenses (article 6),
or
electricity (article 13.4) shall be payable by the Lessee to the Lessor during
the six month period from the first month of the term to the sixth month
of the
term inclusively. It is however understood that said free rent period hereby
granted to the Lessee is conditional upon the fulfilment by the Lessee of
all of
its obligations pursuant to the Lease. In the event that any one of Lessee’s
other obligations under the Lease is not respected by the Lessee during the
said
free rent period, then the total amount that Lessee should have normally
paid
for the said six month period shall become automatically due and payable
to
Lessor.
| 31.4.2 |
Fixed
Real Estate Taxes and Operating
Expenses
|
Notwithstanding
the provisions of the Lease, the parties hereby agree that the amounts payable
by the Lessee to the Lessor pursuant to articles 5 (real estate taxes) and
6
(operating expenses) shall be fixed at the monthly rates of $1,831.78 and
$3,586.54 respectively until the end of the twenty-fourth (24th) month of
the
term of the Lease. It is however understood that beginning with the first
month
of the third year and continuing thereafter throughout the term of the Lease,
said amounts shall be adjusted in accordance with the provisions of the
Lease.
| 31.4.3 |
Leasehold
Improvements
|
The
Lessor shall spend up to but not more than one hundred eighty-nine thousand
dollars ($189,600.00) on fixed leasehold improvements in the Premises to
be done
in accordance with the plans, drawings and specifications supplied by the
Lessee, approved by the Lessor on October 14,1997 and attached as a schedule
hereto. The parties hereby acknowledge that the cost to give effect to the
said
plans will exceed the said amount of $189,600. Lessor and Lessee accordingly
agree that any such excess cost shall be paid by the Lessor when due and
the
Lessee shall reimburse one-half of said amount to Lessor as a loan payable
in
addition to all other amounts payable to Lessor pursuant to this Lease, the
whole in sixty (60) equal and consecutive installments payable without notice
or
demand on the first day of each month beginning with a payment on December
1,
1997 and ending with a payment on November 1, 2002. The foregoing repayment
shall be without interest unless Lessee fails to make any such payment in
full
when due, in which event the entire unpaid balance then outstanding shall
automatically become due and payable with interest thereon from the date
of such
default at the rate described in section 11.3 hereinabove.
|
31.4.4
|
Parking
|
Lessor
shall provide the Lessee with two (2) interior parking spaces located in
the CSL
area of the Building at the current monthly rate of one hundred fifty dollars
($150.00) plus taxes per vehicle, it being understood that said rate is beyond
Lessor’s control and will change from time to time.
| 31.4.5 |
One
Time Right to Cancel
|
Notwithstanding
the term of the Lease contained in article 3.1 hereinabove, the Lessee shall
have a one time right to cancel this Lease with effect as of the last day
of the
seventy second (72nd) month of the term of the Lease (i.e., the last month
of
the sixth year) by delivering to the Lessor a registered written notice to
that
effect on or before the first day of the sixty-third (63rd) month of the
term of
the Lease. In addition, the Lessee shall pay to the Lessor concurrently with
said notice an amount of twenty-two dollars ($22.00) per gross square foot
of
the Premises (i.e., $139,040.00) by certified cheque to accompany said notice
of
termination (said amount representing the unamortized expenses incurred by
the
Lessor pursuant to article 31.4.3 hereinabove), failing which the notice
shall
be deemed not to have been given.
IN
WITNESS WHEREOF
Lessor
and Lessee have duly executed and signed these presents on the date and at
the
place first mentioned.
Both
Parties have expressed the wish that this agreement, as well as all documents,
notices and any other written instrument relating to the execution of any
obligation by either party, be drawn up exclusively in English.
Les
parties ont exprimé xx xxxxx que cette entente, ainsi que tous les documents,
avis et autres écrits relatifs à l’exécution de toute obligation par chacune des
parties, soient rédigés uniquement en langue anglaise.
| LESSOR | |
| WITNESS: | GELPRIM INC. |
| /s/__________________________________ | Per:____________________________________ |
| Date: Oct. 15, 1997 | |
| /s/__________________________________ | Per:____________________________________ |
| Date: Oct. 15/97 | |
| WITNESS: | LESSEE |
| EVENTS INTERNATIONAL MEETING | |
| PLANNERS INC. | |
| /s/ Xxxxxxx Xxxxxxxx | Per: /s/Xxxxxxx Xxxxxxxx |
| Xxxxxxx Xxxxxxxx | |
| (Please print name) | |
| Date: October 15, 1997 | |
| /s/ Xxxxxx Xxxxxx | Per: /s/ Xxxxxx Xxxxxx |
| Xxxxxx Xxxxxx | |
| (Please print name) | |
| Date: October 15, 1997 |
