EXHIBIT 4.11
USE OF PREMISES AND SERVICE AGREEMENT
-------------------------------------
MADE AS OF MAY 1, 2003
BETWEEN: TELESYSTEM LTD, a company duly incorporated pursuant to the
laws of Quebec, having its registered office at 0000,
Xxxx-Xxxxxxxx Xxxxxxxxx West, 38th floor, Montreal, Province
xx Xxxxxx, X0X 0X0
(the "COMPANY");
AND: TELESYSTEM INTERNATIONAL WIRELESS INC., a corporation duly
incorporated pursuant to the laws of Canada, having its
registered office at 0000, xx xx Xxxxxxxxxxx Xxxxxx Xxxx,
00xx Xxxxx, Xxxxxxxx, Xxxxxxxx xx Xxxxxx, X0X 0X0
("TIW")
WHEREAS the Company leases offices located at the 38th Floor of 0000,
Xxxx-Xxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxx (the "PREMISES");
WHEREAS the Company is a major shareholder of TIW;
WHEREAS the Company offers to provide to TIW the use of a portion of the
Premises and the use of office furniture, systems and equipment (collectively
the "SERVICES") as more fully described in the term sheet attached to this
agreement as schedule I and to the schedules attached thereto (the "TERM
SHEET");
WHEREAS TIW wishes to receive the Services for the price and upon the terms and
conditions set forth in the Term Sheet.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, THE PARTIES AGREE AS FOLLOWS:
1. TERMS AND CONDITIONS
1.1 The Company agrees to provide the Services and TIW agrees to pay
for the Services in the manner, for the period and upon the terms
and conditions set forth in the Term Sheet.
2. ASSIGNMENT
Page 1
2.1 This agreement including the Term Sheet (the "AGREEMENT"), shall
not be assigned by either party, nor any rights resulting
therefrom, without the prior written consent of the other party.
For the purposes of this section, any change of control, as
defined in the Securities Act (Quebec), shall be considered as an
assignment.
2.2 Notwithstanding Section 2.1, the Company may perform all or part
of the Services relating to office furniture, systems and
equipment through one of its shareholders or its affiliated
corporations.
3. LIMITATION OF LIABILITY
3.1 The Company shall not be liable for:
3.1.1 Any loss, liability, expense, cost or damage suffered or
incurred by TIW which arises out of any act, omission,
error or otherwise by the Company acting in respect of or
within the scope of this agreement other than an act,
omission or error of judgment which arises from its fraud,
willful misconduct, willful violation of the law or willful
violation of its obligations under this agreement;
3.1.2 Any loss of, damage to or loss of value of, the assets of
TIW resulting from a case of "force majeure" including
legalor illegal strike, threatened strike or lock-out, work
slow-down, fire, flood, war, revolution, dispute,
governmental intervention or regulation, whether statutory
or not, that did not exist at the time of execution hereof,
unavoidable accident, labor shortage, insufficient
equipment, and any other event or cause that is beyond the
reasonable control of the party alleging it and that such
party is unable to resolve or avoid through normal or legal
means at a reasonable cost.
3.2 TIW shall not be liable for:
3.2.1 Any loss, liability, expense, cost or damage suffered or
incurred by the Company which arises out of any act,
omission, error or otherwise by TIW acting in respect of or
within the scope of this agreement other than an act,
omission or error of judgment which arises from its fraud,
willful misconduct, willful violation of the law or willful
violation of its obligations under this agreement;
3.2.2 Any loss of, damage to or loss of value of, the assets of
the Company resulting from a case of "force majeure"
including legal or illegal strike, threatened strike or
lock-out, work slow-down, fire, flood, war, revolution,
dispute, governmental intervention or regulation, whether
statutory or not, that did not exist at the time of
execution hereof, unavoidable accident,
Page 2
labor shortage, insufficient equipment, and any other event
or cause that is beyond the reasonable control of the party
alleging it and that such party is unable to resolve or
avoid through normal or legal means at a reasonable cost.
4. GENERAL PROVISIONS
4.1 The Agreement constitutes the entire agreement between the
parties in connection with the Services and supersedes all prior
agreements, representations and understanding between the
parties.
4.2 The Agreement may only be amended by instrument in writing signed
by both parties.
4.3 The Agreement is governed and interpreted in accordance with the
laws of the Province of Quebec and the applicable laws of Canada
and is subject to the jurisdiction of the Courts of this
province.
4.4 Notwithstanding its actual date of signature, the date of
formation of the Agreement is deemed to be the date mentioned at
the beginning of the Agreement.
4.5 The parties hereto have requested that the Agreement be drafted
in the English language. Les parties aux presentes ont exige que
ce contrat soit redige en langue anglaise.
IN WITNESS WHEREOF, the parties have signed in Montreal, Province of Quebec.
TELESYSTEM LTD.
By : /s/ Xxxxxx Xxx
----------------------------------------
Xxxxxx Xxx
Senior Vice-President and
Chief Financial Officer
TELESYSTEM INTERNATIONAL WIRELESS INC.
By : /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
Vice-President Human Resources
Page 3
SCHEDULE I
TO A USE OF PREMISES AND SERVICE AGREEMENT
DATED MAY 1, 2003
TERM SHEET
USE OF PREMISES AND FACILITIES
AT 0000 XXXX-XXXXXXXX XXXXXXXXX XXXX, 00XX XXXXX, XXXXXXXX
PARTIES: Telesystem Ltd. ("COMPANY");
Telesystem International Wireless Inc. ("TIW").
1) USE OF PREMISES: Use of a part of the 38th Floor at 0000, Xxxx-Xxxxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxx, X0X 0X0 ("PREMISES")
presently leased by the Company from Societe en Commandite
Douze-Cinquante/Twelve-Fifty, Company Limited ("LANDLORD")
pursuant to a Lease Agreement between the Company and the
Landlord dated April 27, 2001 ("HEAD LEASE").
Area of Premises reserved for exclusive use of TIW of
approximately 5,950 square feet on the 38th floor of the
Building, the whole as shown outlined in red on the plan
annexed hereto as Schedule "A". Area of Premises shared by
Company and TIW (reception area, conference rooms, hallways
LAN room, cloakroom, coffee area, photocopy area on the 38th
floor), the whole as shown hatched in blue on Schedule "A"
together with the cafeteria on the 37th floor. TIW's portion
of the shared Premises is fixed for rent calculation
purposes at 2,750 square feet.
Total area for rent calculation = 8,700 square feet.
Parking: Parking: the Company will offer to TIW to lease at least
50 % of parking spaces available under the Head Lease
(8 spaces). All costs for such Parking will be paid by TIW.
Rent: Base rent of $16.25 per square foot during the term of the
agreement.
Additional rent equal to the costs and expenses payable by
Company as provided in Head Lease: approximately $21.13 per
square foot subject to adjustment at the end of each
calendar year in the same manner as provided in the
Head Lease.
Rent is payable monthly in advance and does not include GST
and QST if applicable.
Water and other
service taxes: Water and other service taxes equal to the costs payable by
the Company as provided in Article IX of the Head Leasewill
be charged to TIW in proportion to the total area for rent
calculation mentioned in the Use of Premises section of this
Term Sheet, and will be payable by TIW at the same time as
such costs are payable by the Company.
Term: From date of occupation (estimated June 1, 2003 or earlier
uponmutual agreement of the parties) to February 28, 2006.
Early Termination: Company or TIW may at their discretion, terminate the
agreement at any time without penalty, subject to a 4-month
prior written notice. Such notice cannot be sent by either
the Company or TIW before January 1, 2004. TIW will also
have the right to terminate the agreement in the event that
the Company fails to pay its rental obligations. In such
case TIW will not need to give prior written to the Company
to terminate the agreement.
Extension: TIW has the option of extending the term of the agreement
for an additional 3 years, beginning March 1, 2006 at same
terms except for base rent which will be increased to $19.75
per square foot for the said three-year period.
Leasehold
Improvements: Premises will be made available to TIW on an "as is" basis
as visited on October 7, 2002 and as shown on the attached
Schedule "A". All costs for moving and installation of TIW
in Premises are at TIW's expense, including out-of-pocket
expenses for reconfiguration of Network and Telephone
systems. Any modification or improvement to Premises as
shown on the attached Schedule "A" will be subject to prior
approval of Company and Landlord and all costs relating to
such approved modification or improvement are at TIW's
expense.
Physical
Separation: If Telesystem can no longer appoint 1 director to the board
of TIW and the Chairperson as provided in the Amended and
Restated Investor Rights Agreement of TIW dated January 24,
2002, then TIW may erect walls to separate its area of the
Premises reserved for exclusive use of TIW
- 2 -
from the rest of the 38th Floor. Any such construction is
subject to a prior notice to the Company and the Landlord's
consent as per the Head Lease. The Company and TIW will
agree in advance on a budget for the construction of the
separations and the costs will be shared between the Company
and TIW on a 50-50 basis. In the event that this separation
causes a loss of the exclusive and shared areas for TIW, an
appropriate and proportionate rental adjustment shall be
made to the rent payable by TIW.
Head Lease The use of the Premises by TIW is subject to the
restrictions contained in the Head Lease and in the rules,
by-laws and regulations adopted by the Landlord.
2) USE OF OFFICE
FURNITURE: Use of the office furniture located in the Premises and
described in Schedule "B", including the telephone system
(including a general phone number dedicated to TIW and
individual direct line access for each TIW employee),
security system, cabling and wiring and internet access but
excluding computer hardware and software ("OFFICE
FURNITURE"). The Internet Provider will be selected jointly
by the Company and TIW. TIW will have access to Company's
switch in order to set-up its own intra-office computer
network using existing cabling, wiring and switching.
Rent: $60,000 per year as detailed in attached Schedule "C",
payable monthly in advance. Upon renewal, the parties will
renegotiate an appropriate rent for the office furniture,
given amortization already incurred.
Term and Early
Termination: Same as for Premises.
Repairs,
Additions: Office Furniture will be made available to TIW on an "as is"
basis. All repairs to Office Furniture will be at TIW's
expense and Office Furniture will remain in the Premises at
end of the term and will be in the same condition except for
reasonable wear and tear.
Any additional furniture or equipment required by TIW will
be purchased or leased directly by TIW, all costs related
thereto will be paid by TIW and such additional furniture
and equipment will be removed by TIW, at its expense, at the
end of the term.
- 3 -
If the Company and TIW agree that the telephone system needs
to be replaced during the term, the Company and TIW will
negotiate in good faith reasonable arrangements.
3) SHARED OFFICE
COSTS: Office costs are those incurred for goods and services that
can be shared between the Company and TIW as a result of
their joint occupation of the 38th Floor and have been
initially determined between the Company and TIW as those
detailed in the attached Schedule "C" ("OFFICE COSTS"). The
parties will examine and determine the most cost effective
manner to insure their risk in the Premises and will adjust
Office Costs accordingly. Company shall maintain adequate
and appropriate property and third party liability insurance
coverage for the leased premises and charge TIW. Company to
also add TIW as a name insured on the Company's insurance
policies.
Office Costs will be shared between the Company and TIW on a
50-50 basis.
Payment: Office Costs will be estimated by the Company before the
beginning of each calendar year and 50% of the estimate
will be paid by TIW for such year.
Office Costs will be paid monthly in advance.
Once the Company receives its financial statements for a
year, an adjustment will be made in view of actual costs
incurred during the relevant year and the Company or TIW, as
the case may be, will pay upon demand, the difference
between the amount of Office Costs paid during the preceding
year and the actual Office Costs incurred.
For the period beginning on the date of occupation until
December 31, 2003, the 50% share of Office Costs payable by
TIW will be $10,415 per month. If before September 30, 2003
the Company notices material differences between actual
costs and the amount used to estimate the share paid by TIW
or if the Company notices other goods and services that
should form part of the Office Costs, the Company may
require that TIW and the Company negotiate a revised monthly
charge for the remainder of the period ending on December
31, 2003.
IT Support: The person dedicated to IT Support will have as his first
priority to support and maintain each of the Company's and
TIW's intra-office computer networks, and the shared
- 4 -
telephone systems, security systems and internet access. Any
time available thereafter will be used to provide support to
each of the Company's and TIW's own desktop computer systems
on an equal basis. This employee will be the only employee
of the Company which will have access to the computer room
of TIW and shall sign a confidentiality agreement.
If the demand of both parties cannot be fully served by
existing IT Support, they will negotiate the hiring of
consultants or part-time personnel to meet such
requirements.
Office Costs do not include cost of purchasing or leasing
computer hardware or software nor license fees payable for
the use of such hardware or software.
Office rules: Given the close proximity of TIW and Company employees, a
confidentiality and limited disclosure policy should be
agreed upon and adhered to by all employees of both parties.
All employees of the Company should adhere to the "black-out
periods" imposed by TIW for its employees and insiders in
respect to trading in TIW stock.
- 5 -
SCHEDULE "C"
Use of Premises and Facilities
At 1250 Xxxx-Levesques West, 38th Floor, Montreal
1. USE OF PREMISES
TELESYSTEM TIW
COSTS SHARE
---------- -------
Specific area 5,950
Shared area 2,750
-----
Total lease area (sq. ft.) 47.7% 18,258 8,700
======= =======
Base rent 23.50 16.25
Expenses and taxes 21.13 21.13
------- -------
Total rent ($ per sq. ft.) 83.8% 44.63 37.38
======= =======
Base rent 429,100 141,400
Expenses and taxes 385,800 183,800
------- -------
39.9% 814,900 325,200
======= =======
2. USE OF OFFICE FURNITURE
TELESYSTEM TIW
COSTS SHARE
---------- -------
Telephone system 148,000 7,400
Security system 83,550 4,200
Furniture 567,770 28,400
Leasehold Improvements 486,008 20,000
------- -------
60,000
=======
3. OFFICE COSTS*
TELESYSTEM TIW
COSTS SHARE
---------- -------
50.0%
-------
IT support 70,000 35,000
Lease for 3 photocopiers 30,000 15,000
Maintenance / equipment 4,400 2,200
Maintenance / office 11,000 5,500
Insurance 10,000 5,000
Maintenance / computer system ** 21,000 10,500
Telephone lines (excl. X.X.) 60,000 30,000
Internet connection 21,600 10,800
Coffee / drinks 22,000 11,000
------- -------
250,000 125,000
======= =======
* Telesystem will provide the salary and benefits for the receptionist at no
charge to TIW and TIW will provide the salary and benefits for the
responsible of office support at no charge to Telesystem.
** This cost does not include the licence fees payable for the softwares to be
used by TIW.
