Exhibit 10.8
DEED OF LEASE
BETWEEN
INDOME 43 INC.
AND
ICON OF CANADA INC.
2
TABLE OF CONTENTS
Description Page Number
- ----------- -----------
1. Description and Lease of Premise........................... 1
2. Term of Lease.............................................. 1
3. Use of Premises............................................ 2
4. Net Rent................................................... 2
5. Rent on Net Return Basis................................... 2
6. Proportionate Expense Rental............................... 2
a) Taxes................................................. 2
b) Insurance............................................. 3
c) Other Expenses........................................ 3
7 Lessee's Contribution...................................... 4
8. Taxes, Assessments, Etc.................................... 4
9. Lessee's Insurance......................................... 5
10. Utilities and Heating...................................... 5
11. Maintenance and Repairs.................................... 5
12. Improvements and Alterations............................... 5
13. Inspection and Repair...................................... 6
14. Furnish Statement.......................................... 7
15. Failure of Lessee to Perform............................... 7
16. Default.................................................... 7
17. Liquidation Sales, Etc..................................... 8
18. Expiration of Lease........................................ 8
19. Signs...................................................... 9
20. Subletting By Lessee....................................... 9
21. Destruction of Premises.................................... 9
22. Compliance with Laws and Regulations....................... 10
23. Indemnifications........................................... 11
24. Assignment By Lessor....................................... 11
25. Floor Loading.............................................. 12
26. Condition of Leased Premises............................... 12
27. Occupancy.................................................. 12
28. Permits, Etc............................................... 12
29. Rules and Regulations...................................... 12
30. Access..................................................... 12
31. Access to Leased Premises.................................. 12
32. Inconvenience.............................................. 13
33. Expropriation.............................................. 13
34. Extensions and Location.................................... 13
35. Costs and Registration..................................... 14
36. Collection................................................. 14
37. Waiver..................................................... 14
38. Notices.................................................... 14
39. Descriptive Headings....................................... 15
40. Interpretation............................................. 15
41. Option to Cancel........................................... 15
42. Broker..................................................... 16
43. Intervention............................................... 16
44. Language................................................... 16
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DEED OF LEASE
BETWEEN: INDOME 43 INC., a body politic and corporate duly incorporated
having it head office and principal place of business at 5165
Sherbrooke St. West, Montreal, Province of Quebec hereinacting
through and represented by James Lyng, its Secretary, pursuant to
a resolution of the Board of Directors dated November 1st, 2000,
a certified copy of which remains annexed hereto.
(hereinafter called the "LESSOR")
AND: ICON OF CANADA INC. a body politic and corporate duly
incorporated having its head office and principal place at 900
Boulevard de I'Industrie, St. Jerome, Quebec hereinacting through
and represented by Mr. Richard Hebert, its president, pursuant to
a resolution of the Board of Directors dated November 1st, 2000 a
certified copy of which remains annexed hereto.
hereinafter called the "LESSEE")
1. DESCRIPTION AND LEASE OF PREMISES.
Lessor, in consideration of the rent, covenants and agreements hereinafter
contained on the part of Lessee to be paid, kept and performed, hereby
leases to Lessee and Lessee does hereby accept form Lessor those certain
premises being the entire Building situated at 500 Lajeunesse West, St.
Jerome, Quebec (the "Building) consisting of approximately 105,984 square
feet and the land both of which are outlined in red on a plan annexed
hereto as Schedule 1 hereof to form part hereof (hereinafter referred to as
the "Leased Premises") erected upon those certain parcels of land (the
"Land") known as parts of lots 488, 489, of the Cadastre of the Village of
St. Jerome and of the cadastre of the Parish of St. Jerome, more
specifically described in Schedule 2 attached hereto.
2. TERM OF LEASE
The term of this Lease shall be for a period of five (5) years and shall
commence on the 1st day of June, 2001 and terminate on the 31st day of May,
2006 unless sooner terminated under the provisions hereof.
Should the Lessee continue to occupy the Leased Premises after the expiry
of the Term without either a written agreement, or a validly exercised
option r written extension, there shall be no tacit renewal and the Lessee
shall pay the Lessor rent and other charges for the period of occupancy as
set out in the Lease or renewal thereof, plus fifty percent (50%) thereof,
without prejudice to such further damage claims as may be available to the
Lessor against the Lessee. However, the Lessee is not to have the right to
such occupancy beyond the expiry of the term.
3. USE OF PREMISES
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Lessee covenants that the Leased Premises shall be used solely for the
purpose of light manufacturing and warehousing of products manufactured by
Lessee and offices related thereto.
4. NET RENT
Lessee covenants and agrees to pay the Lessor in lawful money of Canada
without deduction, abatement or set off, the sum of One Million Eight
Hundred Fifty Four Thousand Seven Hundred and Twenty Dollars ($1,854,720)
for the period June 1, 2001 to May 31, 2006, on a net, net basis payable in
equal, consecutive, monthly installments each in advance on the first day
of each month during the term hereof ($30,912.00 per month) (the "Base
Rental").
The rent as herein provided shall be paid to Lessor and/or its nominee at
the head office of the Lessor, situated at the address in the heading
hereof or at such other place in Canada as shall be designated by Lessor in
writing to Lessee. The Leased Premises shall be deemed to be composed of
the square footage herein stipulated notwithstanding any possible
calculation to the contrary.
5. RENT ON NET RETURN BASIS
It is intended that the rent provided for in this Lease shall be an
absolute net return to Lessor for the term of this Lease, regardless of the
condition of the Leased Premises, free of any and all costs, expenses of
any nature whatsoever save as herein provided, taxes and charges with
respect to the Leased Premises, other than any income or profit taxes which
may be levied against Lessor and any interest or amortization charges of
Lessor in respect of mortgages or hypothecs.
6. PROPORTIONATE EXPENSE RENTAL
Without limiting the obligations of the Lessee, the Lessee shall pay during
the Term of this Lease, as additional rental to the Lessor, One Hundred
Percent (100%) of the aggregate of the following (adjusted in the first and
last year of the term) hereinafter referred to as the Lessee's
("Proportionate Share").
a) TAXES
The Lessee shall pay, whether they be special or general, its Proportionate
Share of all taxes, surtaxes, taxes on non-residential immoveables,
property taxes, municipal taxes, school taxes, water and business taxes,
rates including local improvement rates, charges, duties and assessments,
which are now or which may ever be levied against the Building and Land or
the revenues therefrom, against the Lessor for the Leased Premises and all
equipment and facilities thereon or therein, and/or any property on or in
the Building owned or brought thereon or therein by Lessor or Lessee, and
any and every of its assignees or sublessees and its and their respective
officers, agents, employees, servants, visitors or licensees and/or against
Lessor or Lessee in respect thereof, whether such taxes, rates, duties or
assessments are charged by a municipal, parliamentary, school, or any other
body of competent jurisdiction as well as all reasonable expenses related
to the contestation of any part of said charges and all other taxes no
matter how issued in replacement of same.
b) INSURANCE
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The Lessee shall pay its Proportionate Share of all premiums with
respect to insurance to be placed by Lessor and described as follows:
i) Fire extended Coverage and Malicious Damage insurance for
the full insurable value procurable at the time, of the
Building, its improvements and equipment and in addition
upon the full annual rental income thereof;
ii) Broad Boiler and Unfired Pressure Vessels insurance,
including Repair or Replacement and rental income coverages
in an amount reasonably satisfactory to the Lessor.
iii) Such other insurance as institutional lenders may require or
as it may be or may become customary for owners of property
to carry as respects loss of or damage to the Building
and/or Leased Premises or liability arising therefrom. The
aforesaid insurance premiums shall include an amount
reasonably determined as being equivalent to a fair premium
for the deductible portion of insurance policy in question,
provided that the total sum payable by the Lessee shall not
exceed the amount that would be payable by the Lessee shall
not exceed the amount that would be payable by the Lessee if
the insurance policy would not have any deductible portion.
Lessee will pay the amount of any increase in insurance
premiums on the whole of the building of which the Leased
Premises form part if such increase is caused by lessee's
operations in the Leased Premises. Lessee shall have the
right should it so desire to insure the Leased Premises with
respect to all of the aforegoing, naming the Lessor as the
beneficiary pursuant to said insurance in force and content
and amount with insurers acceptable to Lessor.
c) OTHER EXPENSES
The Lessee shall pay al costs related to the maintenance and
repair and reasonable replacement of the Building, structural
repairs and/or replacements to the Building excluded, same to be
the Lessor's responsibility, total replacement of the roof of the
Building shall be considered a structural repair and Lessee shall
without limitation be responsible for repairs and maintenance to
the washrooms, corridors, parking, driveways, heating and
air-conditioning equipment and services and all other equipment,
and all facilities and services available at the commencement of
the term or added or provided at any time thereafter, (should such
services, etc. be and to the extent that they are available).
Lessee shall not be responsible for the repairing of the exterior
of the Building (windows and doors excluded), the roof, concrete
repair work with respect to the existing cracks in the concrete
slabs. Lessee accepts the Building in said state with no
obligations of Lessor to repair same. Lessor shall not be
obligated to maintain, repair or replace the asphalt; however
Lessor shall, within a delay of thirty (30) days of signature of
this Lease, weather permitting, make repairs of a minor nature to
the asphalt, which repairs will be limited to patching, as
required.
The Lessee shall not be responsible for repairs to the roof. The
Lessee shall not be responsible for the repairs to the electrical
transformer at the exterior of the Building. The Lessee shall not
be responsible for the maintenance of the water pipes leading
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up to the plant. Lessee shall be responsible for all repairs due to damages
caused to the Building and property by the Lessee, or by anyone acting on
behalf of the Lessee. This would include vandalism of any nature.
The Lessee shall provide winter and summer exterior ground maintenance.
7. LESSEE'S CONTRIBUTION
Notwithstanding anything to the contrary hereinabove contained, the Lessor
may, instead of billing individually for taxes and other items to be paid
by the Lessee, as hereinabove stipulated, estimate the amounts payable by
the Lessee under the provisions of this Lease for such periods as the
Lessor may determine (but not exceeding twelve months) the Lessee hereby
agreeing to pay to the Lessor such amounts in monthly installments in
advance during the said period together with the rental payments as
hereinabove provided. Following the expiration of the period for which such
estimated payments have been made, the Lessor shall deliver to the Lessee a
statement of the actual costs payable pursuant to clause 6. If the amounts
actually due by the Lessee for such period exceed the amount so collected
by the Lessor, the Lessee shall pay same forthwith upon receipt of such
statements, and if the amounts due by the Lessee for the said period are
less than the amount actually collected by the Lessor, then the Lessor may
remit same forthwith or credit same to the next ensuing payments becoming
due by the Lessee to the Lessor.
All sums due by the Lessee to the Lessor in virtue of this Lease, whether
under this clause or otherwise, will be considered as rent for all legal
purposes.
8. TAXES, ASSESSMENTS, ETC.
Lessee will in each and every year during the Term of this Lease pay and
discharge or cause to be paid and discharged, all license fees, public
utility charges, water rates, sewer rates and other like fees, charges,
rates and assessments that may be levied, charged, rated or assessed
against the Leased Premises and/or all equipment and facilities thereon or
therein, and/or any property on the Leased Premises owned or brought
thereon by Lessor or Lessee, and any and every of its assignees or
sublessees and its and their respective officers, agents, employees,
servants, visitors or licensees and/or against Lessor or Lessee in respect
thereof, and every tax and license fee in respect of any and every business
carried on therein, or in respect of the occupancy of the Leased Premises
by Lessee (and any and every of its assignees or sublessees) whether such
license fee, charges, rates, assessments and taxes are charged by a
municipal, parliamentary, school or any other body of competent
jurisdiction, and all charges for public utilities including electric
current, gas, water, steam or hot water used upon or in respect of the
Leased Premises and for fitting, machines, apparatus, meters or other
things leased in respect thereof, and for all work or services performed by
any corporation or commission in connection with such utilities; and will
indemnify, and keep indemnified Lessor from and against payment of all
losses, costs, charges and expenses occasioned by or arising from any and
every such license fee, charge, rate, assessment and tax. Lessee will
furnish to Lessor within ten (10) days after the day on which the same
become due and payable, receipts or other appropriate evidence as to the
payment of each such tax, rate, charge, assessment, duty and license fee.
9. LESSEE'S INSURANCE
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Lessee covenants that nothing will be done or omitted to be done whereby
any policy shall be cancelled or the Leased Premises rendered uninsurable
during the Term or any renewal thereof.
The Lessee shall, at its expense, procure and maintain at all times during
the continuance of this Lease such insurance as will protect the Lessee and
the Lessor from any claim for personal injury including death, and for
property damage in any way arising out of or attributable to the exercise
by the Lessee, or others, of any of the privileges or rights herein
granted. This insurance shall provided a combined minimum limit of
$1,000,000 or such higher amount as Lessor may reasonably require for
personal injury and property damage and shall extend to cover any liability
assumed by the Lessee under this Lease. The Lessee shall forward to the
Lessor the original of the insurance policy and evidence of renewal thereof
during the continuance of this Lease. The Lessee hereby agrees and
understands that the placing of such insurance shall in no way relieve the
Lessee from any obligation assumed under this Lease, and that failure by
the Lessee to remit to Lessor, within ten (10) days of demand proof of the
above-mentioned coverage will entitle the Lessor to obtain said insurance
and to charge Lessee for same.
10. UTILITIES AND HEATING
The lessee shall pay for all electricity, water, heat, gas telephone, pest
control, garbage removal and all public utilities with respect to the
Leased Premises, and shall keep the Leased Premises suitable heated.
11. MAINTENANCE AND REPAIRS
Subject to section 6.c) hereof and notwithstanding any provisions of
articles 1854 and 1864 of the Civil Code of Quebec, the Lessee, at its own
expense, shall operate maintain and keep the Leased Premises including all
facilities, equipment and services, both inside and outside, as they would
be kept by a careful owner and shall promptly make all needed repairs and
replacements to the Leased Premises, which a careful owner would make,
including, without limitations, the water, gas, drain and sewer
connections, pipes and mains, electrical wiring, water closets, sinks and
accessories thereof, and all equipment belonging to or connected with the
Leased Premises or used in its operation.
The Lessor may obtain of have the Lessee obtain and in either event the
Lessee shall pay for such maintenance, repair and replacement services
and/or insurance contracts as may be available from firms approved by the
Lessor (such approval not to be unreasonably withheld), with respect to the
maintenance, repair and replacement of the heating equipment,
air-conditioning and sprinkler and alarm equipment, in the Leased Premises;
the whole without prejudice to the other obligations of the Lessee with
respect to such equipment. The Lessee shall forward to the Lessor copies of
such contracts and evidence of renewals thereof during the continuance of
this Lease. In the event any of said contracts apply to the entire
Building, Lessee shall pay the Proportionate Share of the Lessee with
respect to same.
12. IMPROVEMENTS AND ALTERATIONS
Lessee shall have the right to make at its own expense, with the prior
written consent of the Lessor, whose consent may not be unreasonably
withheld, additions,
6
alterations and changes in and to the Leased Premises provided, however,
that no such work shall be commenced except with the prior written consent
of Lessor and except on compliance with the following conditions:
a) Lessee shall furnish to Lessor plans and specifications showing in
reasonably complete detail the work proposed to be carried out and the
estimated cost thereof and Lessor shall approve or reject such plans
and specifications within thirty (30) days after receipt of same. If
such plans and specifications are approved, all work shall be carried
out in compliance with the same.
b) The value of the Leased Premises shall not, as a result of any work
proposed to be carried out by Lessee, be less than the value of the
Leased Premises before the commencement of such work and Lessor shall
be the sole judge of such value.
c) All work shall be carried out with reasonable dispatch and in good
workmanlike manner and in compliance with all applicable permits,
authorization and building and zoning by-laws and with all regulations
and requirements of all competent authorities having jurisdiction over
the Leased Premises.
d) The Leased Premises shall at all times be free of all hypothecs or
other encumbrances for work done, labor performed or materials
furnish. Lessor may require Lessee to furnish security satisfactory to
Lessor guaranteeing the completion of the work and the payment of the
cost thereof free and clear of all hypothecs or other encumbrances, as
well as for the replacement of the Leased Premises to their former
state, as specified in Clause 21 below.
e) Lessee shall maintain such general liability insurance for the
protection of Lessor and Lessee as Lessor may require and shall
produce evidence of such insurance to Lessor.
f) All work, which is of permanent nature, when completed, shall be
comprised in, and form part of the Leased Premises and shall be
subject to all the provisions of this Lease and Lessee shall not have
any right to claim compensation therefor and the same shall not be
removed by Lessee on termination of this Lease, unless the parties
have agreed otherwise in writing at the time of request for consent
referred to in the first paragraph of the present section, in which
case the Lessee shall comply and shall repair any damage related
thereto or caused thereby.
g) Should the Lessee, after having obtained written consent from the
Lessor, effect changes in the partitions or otherwise modify the
Leased Premises and accordingly had to relocate or modify the heating
and, if applicable, the air-conditioning equipment, such changes
and/or modifications would have to be effected at the sole cost and
risk of the Lessee.
13. INSPECTION AND REPAIR
Lessor and its agents shall have the right, at all reasonable times during
the Term or any renewal thereof to enter the Leased Premises to examine the
condition thereof and to ascertain whether Lessee is performing its
obligations hereunder, and Lessee covenants to make any repair which Lessor
deems necessary as a result of such
7
examination. If Lessee fails to make any such repairs within thirty (30)
days after notice from Lessor requesting Lessee so to do, provided that
such repairs may reasonably be made within the said period, Lessor may,
without prejudice to any other rights or remedies it may have, make such
repairs and charge the Lessee for same but Lessor shall have the right at
any time to make any emergency repairs without notice to Lessee and charge
the cost thereof to Lessee. Any cost chargeable to Lessee hereunder shall
be payable forthwith on demand as additional rent. Lessor will be entitled
to request from Lessee a deposit or acceptable bank guarantee equivalent to
the value of said needed repairs until Lessee completes them.
14. FURNISH STATEMENT
Lessee shall from time to time at the request of Lessor produce to Lessor
satisfactory evidence of the due payment by Lessee of all payments required
to be made by Lessee under this Lease.
15. FAILURE OF LESSEE TO PERFORM
If Lessee fails to pay any taxes, rates, insurance premiums, charges or
debts which it owes or has herein covenanted to pay or has undertaken to
contract, Lessor may pay or contract the same and shall be entitled to
charge the sums so paid or contracted to Lessee who shall pay them
forthwith on demand, as additional rent and Lessor, in addition to any
other rights, shall have the same remedies and may take the same steps for
the recovery of rent in arrears under the terms of this Lease; all arrears
of rent and any monies paid by Lessor or due by Lessee to Lessor under this
Lease, shall bear interest at the rate of 24% per annum or two percent (2%)
per month from the time such arrears become due until paid to Lessor.
Lessor may demand such sums from Lessee even before payment.
16. DEFAULT
Without prejudice to all of the rights and resources available to the
Lessor, the following shall be considered special defaults under the terms
of this Lease;
a) in the event that the Lessee shall be in default under any provision
of this Lease providing for the payment of rent or additional rent and
such default shall continue after the due date;
b) in the event that Lessee shall be adjudicated a bankrupt of make any
general assignment for the benefit of creditors, or take, or attempt
to take, the benefit of any insolvency or bankruptcy act, or if a
petition in bankruptcy shall be granted against Lessee, or if a
receiver or trustee be appointed for the property of Lessee, or any
part thereof, or if any execution be issued pursuant to a judgement,
rendered against Lessee or pursuant to this Lease, or if the estate of
lessee hereunder be transferred or pass to or devolve upon any other
person or corporation by operation of law; or if the Lessee abandons
the Leased Premises of if they are vacant or unattended for more than
ten (10) days, or occupied by persons other than the Lessee without
Lessor's written consent; or
c) in the event that Lessee shall be in default in observing any covenant
herein contained and/or performing any of its obligations contained in
this Lease (other than a default in the payment of rent or additional
rent) and such
8
default shall continue for thirty (30) days after written notice
specifying such default shall have been given to Lessee by Lessor.
In the event of any special default under the terms of this Lease, the
Lessor without prejudice to any other rights or remedies it may have
hereunder or by law, shall have the right to resiliate this Lease forthwith
upon written notice given to Lessee by Lessor and this notwithstanding any
legislation to the contrary including without limitation Article 1863 of
the Civil Code of Quebec. Lessee upon such a termination of this Lease
shall thereupon quit and surrender the Leased Premises to Lessor and
Lessor, its agents and servants, may immediately or at any time thereafter,
re-enter the Leased Premises and dispossess Lessee, and remove any and all
persons and any and all property therefrom and re-let the Lease Premises to
whomsoever it may choose without further notice or demand being necessary.
In case of any termination, or in case Lessee, in the absence of such
termination shall be dispossessed by or at the instance of Lessor, in any
lawful manner, whether by force or otherwise, rent for the then current
month and for the three months next succeeding the date to such termination
or dispossession shall immediately become due and payable (as accelerated
rent) and this Lease shall immediately, at the option of the Lessor, become
forfeited and terminated, and the Lessor may, without notice or any form of
legal process, forthwith re-enter upon and take possession of the leased
Premises and remove the Lessee's effects therefrom, the whole without
prejudice to and under reserve of all of the rights and recourses of the
Lessor to claim any and all losses and damages sustained by the Lessor by
reason of and arising from any default of the Lessee.
17. LIQUIDATION SALES, ETC.
The Lessee undertakes not to carry out a permit a bankruptcy or liquidation
sale or sale of second hand goods, war surplus goods, insurance salvage
stock or auction in or from the Leased Premises. The Lessee acknowledges
that a violation of the present clause will cause irreparable injury to the
Lessor and consents to the Lessor enforcing the present clause by way of
provisional and interlocutory injunction, without prejudice to such other
rights as the Lessor may have under the circumstances.
18. EXPIRATION OF LEASE
-------------------
The Lessee shall at the expiration or sooner termination of the Term of
this Lease peaceably surrender and yield up unto Lessor the Leased Premises
unless agreed otherwise to the contrary in writing by the parties, together
with all buildings, alterations, replacements, additions, erections, and
improvements (leasehold or otherwise) including, but not limited to main
electrical installations, offices, partitions, divisions, showrooms, air
conditioning and heating equipment, paneling, built-in furniture,
wall-to-wall carpets, attached carpets or other floor coverings, wiring,
switches, meters, meter boxes and transformers, which at any time during
the Term hereof shall be placed, made, installed, fixed or attached therein
or thereon for permanence by the Lessee, in good repair and condition,
subject to reasonable wear and tear only, and without any compensation
whatsoever being allowed to the Lessee for same. Lessee shall not remove or
alter any of the foregoing during the Term of the Lease or renewal or
extension thereof, without the written consent of the Lessor. However, the
Lessor shall have the right to require the Lessee, prior to or after the
termination of the Lease or any renewal or extension thereof, to remove any
or all of
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the foregoing items, in which case the Lessee shall remove the items
requested to be removed, repairing any damage related thereto or caused
thereby, and to the extent required by the Lessor, the Lessee shall leave
the Leased Premises in their original good and clean state and condition,
subject to reasonable wear and tear. Notwithstanding anything herein,
Lessee shall be entitled to remove all electrical installations which are
auxiliary to its manufacturing equipment. Lessee shall in such case make
the necessary repairs to the walls etc. to bring it back to its original
state less normal wear and tear.
19. SIGNS
Lessor shall have the right at all times during the Term of this Lease to
place upon the Leased Premises a notice of reasonable dimensions and
reasonably placed, so as not to interfere with the business of Lessee,
stating that the Leased Premises are for sale and for twelve (12) months
prior to the termination of this Lease, Lessor shall have the right to
place upon the Leased Premises a similar notice that the Leased Premises
are for rent and Lessee shall not remove such notice or knowingly permit
same to be removed.
Lessor shall have the right to exhibit the Leased Premises from time to
time to any insurer, prospective Mortgagee, purchaser or lessee at all
reasonable hours.
Any exterior signs or any signs visible from the exterior will be subject
to the Lessor's reasonable approval in writing and installation if approved
will be at the sole expense of the Lessee. All such signs shall comply with
the lawful requirements of municipal and government authorities.
20. SUBLETTING BY LESSEE
Subject to the provisions hereinafter detailed, the Lessee shall have the
right to sublet the whole or any part of the Leased Premises or assign its
rights in the present Lease with consent of the Lessor which consent shall
not be unreasonably withheld providing that the Leased Premises are
utilized only for the purposes stipulated in Clause 3 hereof.
Notwithstanding such subletting and assignment, the Lessee shall remain
jointly and severally liable with such sublessee or assignee for the
performance of all of the terms and conditions of the Lease.
If the Lessee wishes to so sublet or assign, it must submit to the Lessor a
copy of the offer to sublet or assign, together with a request for consent
of the Lessor, and the Lessor shall have thirty (30) days form receipt
thereof to advice the Lessee in writing that it consents to the sublease or
assignment in question as sublessee at the same rental rate and other terms
and conditions of this Lease or, at the Lessor's option, that it is
canceling the Lease as of the effective commencement date of such offer to
sublet or assign, or consent to the Sublease in question.
However, should the Lessor not exercise its right to cancel this Lease, the
Lessor shall not thereby be precluded from withholding its consent to the
said sublet or assignment, provided said consent shall not be unreasonably
withheld.
21. DESTRUCTION OF PREMISES
Provided, and it is hereby expressly agreed that if and whenever during the
Term or any renewal thereof, the Building or the Leased Premises shall be
destroyed or
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damaged by fire, lightening or tempest, or any of the other perils insured
against under the provisions of Clause 6 paragraph b, then and in every
such event:
a) If the damage or destruction is such that the Leased Premises, or the
Building, is rendered wholly or partially unfit for occupancy or it is
impossible or unsafe to use and occupy them or it, as the case may be,
and if in either event the damage, in the opinion of Lessor, notice to
be given to Lessee within thirty (30) days of the happening of such
damage or destruction, the Leased Premises or Building cannot be
repaired with reasonable diligence within one hundred and eighty (180)
days from the happening of such damage or destruction, then either
Lessor or Lessee may within five (5) days next succeeding the giving
of the Lessor's opinion as aforesaid, terminate this Lease by giving
to the other notice in writing of such termination, in which event
this Lease and the Term shall cease and be at an end as of the date of
such destruction or damage and the rent and all other payments for
which Lessee is liable under the terms of this Lease shall be
apportioned and paid in full to the date of such destruction or
damage; in the event that neither Lessor or Lessee so terminate this
Lease, the Lessor shall repair the Leased Premises or Building with
all reasonable speed and the rent hereby reserved shall abate from the
date of the happening of the damage until the damage shall be made
good to the extent of enabling Lessee to use and occupy the Leased
Premises.
b) If the damage be such that the Leased Premises or the Building are
wholly unfit for occupancy, or if it is impossible or unsafe to use or
occupy the Leased Premises but if in either event the damage, in the
opinion of Lessor, notice to be given to Lessee within thirty (30)
days from the happening of such damage, the Leased Premises or
Building can be repaired with reasonable diligence within one hundred
and eighty (180) days of the happening of such damage, then the rent
reserved shall abate from the date of the happening of such damage
until the damage shall be made good to the extent of enabling Lessee
to sue and occupy the Leased Premises and Lessor shall repair the
damage with all reasonable speed.
c) If, in the opinion of the Lessor, the damage can be made good, as
aforesaid, within one hundred and eighty (180) days of the happening
of such destruction or damage and the damage is such that the Leased
Premises are capable of being partially used for the purposes for
which they are hereby leased, then until such damage has been repaired
the rent shall abate in the proportion that the part of the Leased
Premises which is rendered unfit for occupancy bears to the whole of
the leased Premises and Lessor shall repair the damage with all
reasonable speed.
Should any mortgage creditor who may have an interest in any insurance
proceeds refuse to permit the use of such proceeds for the repair,
replacement, rebuilding and/or restoration as hereinabove provided and
for the payment of amounts expended for such purposes, then the
Lessor's obligation to repair or rebuild as provided for hereinabove
shall cease and shall be null and void and the Lease shall be
cancelled effective as of the date of the damage, unless, the Lessor,
at the Lessor's sole option, chooses to repair or rebuild.
22. COMPLIANCE WITH LAWS AND REGULATIONS
11
The Lessee shall, at its own expense, promptly comply with the requirements
of every applicable statute, law and ordonnance and with every applicable
regulation or order with respect to the removal of any encroachment placed
by the Lessee, or to the condition, equipment, maintenance, or use or
occupation of the leased Premises, including the making of any alteration,
addition in or to any structure upon connected with or appurtenant to the
Leased Premises, whether or not such alterations be structural or be
required on account of any particular use to which the Lease Premises or
part thereof may be put and whether or not such requirement, regulation or
order be of a kind now existing or within the contemplation of the parties
hereto; and shall comply with any applicable regulation, recommendation or
order of the Canadian Fire Underwriters' Association, or any body having
similar functions or of any liability or fire insurance company by which
the Lessor and/or the Lessee may be insured.
23. INDEMNIFICATIONS
Except if caused directly by the gross negligence of the Lessor, the Lessor
shall not be liable nor responsible in any way for any injury of any nature
whatsoever that may be suffered or sustained by the Lessee or any employee,
agent or customer of the Lessee or any other person who may be upon the
Leased Premises or for any loss of or damages to any property belonging to
the Lessee or to its employees or to any other person while such property
is on the Leased Premises and in particular (but without limiting the
generality of the foregoing) the Lessor shall not be liable for any damage
or damages of any nature whatsoever to any such property caused by the
failure by reason of a breakdown or other cause, to supply adequate
drainage, snow or ice removal, or by reason of the interruption of any
public utility or service or in the event of steam, water, rain or snow
which may leak into, issue, or flow from any part of the Building or from
the water, steam, sprinkler, or drainage pipes or plumbing works of the
same, or from any other place or quarter or for any damage caused by
anything done or omitted by any lessee, but the Lessor shall use all
reasonable diligence to remedy such condition, failure or interruption of
service when not directly or indirectly attributable to the Lessee, after
notice of same, when it is within its power and obligation so to do. Nor
shall the Lessee be entitled to any abatement of rental in respect of any
such condition, failure or interruption of service.
The Lessee will indemnify and save harmless the Lessor from and against all
fines, liability, damages, suits, claims, demands and actions of any kind
or nature which the Lessor shall or may become liable for or suffer by
reason of any breach, violation or non-performance by the Lessee of any
covenant, term or provision hereof or by reason of any injury (including
death resulting at any time therefrom) or damage to property occasioned to
or suffered by any person or persons including the Lessor by reason of any
such breach, violation or non-performance or of any wrongful act, neglect
or default on the part of the Lessee or any of its employees, officers,
agents, suppliers, or invitees.
24. ASSIGNMENT BY LESSOR
Lessee hereby covenants and agrees to execute and deliver, at any time and
from time to time upon the request of the Lessor at Lessor's expense,
consent to and become a party to any instrument or instruments permitting a
mortgage or hypothec to be placed on the Building or any part thereof of
which the Leased Premises are a
12
part as security for any indebtedness covered by the said mortgage or
hypothec and subordinating this Lease to the said mortgage or hypothec.
25. FLOOR LOADING
Lessee shall not bring upon the Leased Premises or any part thereof any
machinery, equipment, article or thing that by reason of its weight or size
might damage the Leased Premises and will not at any time overload the
floors of the Leased Premises and if any damage is caused to the Leased
Premises by any machinery, equipment, article or thing or by overloading or
by any act, neglect or misuse on the part of Lessee or any of its invitees,
agents or employees or any person having business with Lessee, Lessee will
forthwith pay to Lessor the cost of making good the same.
26. CONDITION OF LEASED PREMISES
The Lessee represents that it has examined and viewed the Leased Premises
and accepts same in their present condition.
27. OCCUPANCY
If the Lessor is unable to give possession of the Leased Premises to the
Lessee on the date of commencement of the Term by reason of the
non-completion of construction, repairs, improvements, additions, or
alterations to the Leased Premises, or the Building containing same, the
Lease shall not be void or voidable nor shall the Lessor be liable for any
loss or damage resulting therefrom. However, the rent payable hereunder
shall abate until the Leased Premises are substantially completed.
28. PERMITS, ETC.
The Lessee shall obtain all necessary permits and licences required for the
occupancy any carrying on of its business, the Lessor making no warranties
whatsoever regarding zoning, permits and licences which may be required by
the Lessee. Should the Lessee fail to obtain any required permit and/or
licence, it shall remain bound to perform its obligations under the present
Lease.
29. RULES AND REGULATIONS
The Lessor shall have the right to make reasonable rules and regulations as
in its discretion may from time to time be needful for the safety, care,
cleanliness and proper administration of the Building including the Leased
Premises, and for the preservation of good order therein, and the same
shall be observed and performed by the Lessee and by the clerks, servants,
employees, agents, invitees and customers, of the Lessee, and all such
rules and regulations now or hereafter to be established by the Lessor as
herein provided shall form part of this Lease as though same had been set
forth at length herein.
30. ACCESS
The Lessor shall have the right of access to the Leased Premises to perform
such work as it chooses to do upon the Leased Premises, the Lessee
renouncing any claim to any indemnity or diminution of rent provided the
same be carried out with reasonable diligence.
31. ACCESS TO LEASED PREMISES
13
a) The Lessee, it employees, agents, customers will have access to the
Leased Premises at all times.
b) Should the Lessee, its employees, agents and customers wish to use any
land of the Lessor adjacent to the Leased Premises to enter or leave
the Leased Premises, they undertake to use at their risk the way
specifically designated for such purpose by the Lessor, and they may
also use at their risk and in common with others, the parking and
shipping areas designated by the Lessor, if provided.
c) The Lessor reserves the right to change or relocate the said roadways,
parking or shipping areas, at its convenience and in its sole
discretion.
d) The Lessee will not use the said roadways, parking or shipping areas
for any other purpose except for parking in the spaces designated or
as access to the Leased Premises or shipping areas as designated by
Lessor.
e) The Lessee, its employees, agents and customers may at their risk use,
in common with others who will have obtained the permission of the
Lessor all common corridors, stairways or vestibules of the Building
providing access to the Leased Premises, if available, as well as all
common parking and access roads to the Building.
f) The Lessor will with reasonable diligence maintain all such common
access roads, parking areas, shipping areas, corridors, stairways,
vestibules, or other common areas giving access to the Leased Premises
and the Lessee will pay to the Lessor all such maintenance costs as
provided for in Section 6, paragraph c) hereof.
32. INCONVENIENCE
The Lessee shall not hold the Lessor in any way responsible for any damages
or annoyance which the Lessee may sustain through the fault of any lessee
or lessees who occupy any leased premises adjacent to, near or above the
Leased Premises, and not use the Leased Premises for any purpose,
notwithstanding anything stated herein, which may cause noise, disturbance
or noxious odour, to the discomfort of the other lessees and neighbours,
and renounces to any claims it may have or acquire against the Lessor under
Articles 1859 and 1861 of the Civil Code of Quebec.
33. EXPROPRIATION
-------------
In the event that all or part of the Leased Premises are expropriated,
which would prevent the use or occupation of the inside floor space of the
Building (which forms the major part of the Leased Premises) in whole or in
part, then he Lessee shall be entitled to a diminution of the rent payable
hereunder during the period and for the area of eviction only. Such
diminution of rent shall be reckoned from the date the Lessee is forced to
vacate the said inside floor space and shall be calculated on a pro-rata
basis, the whole without any other claims by the Lessee against the Lessor
for any loss or damages occasioned by said eviction and/or loss of use.
34. EXTENSIONS AND LOCATION
-----------------------
The Lessor shall have the right at its option and from time to time during
the Term to make extensions and/or additions and/or to add one or more
additional floors or storeys onto all or part of the Building comprising
the Leased Premises.
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15
the Leased Premises, or, provided that there are no strikes or
interruptions in the postal service, when mailed by prepaid registered mail
to Lessee at the address of the Leased Premises.
Lessee elects domicile at the Leased Premises for the purpose of service of
all notices, writs of summons or other legal documents in any suit of law,
action or proceeding which Lessor may take under the Lease.
Any notice or demand given by Lessee to Lessor shall be deemed to be duly
given when served upon Lessor personally or, provided that there are no
strikes or interruptions in the postal service, when mailed by prepaid
registered mail to Lessor at the address designated by Lessor for purposes
of payment of the rent hereunder.
39. DESCRIPTIVE HEADINGS.
The descriptive headings of this Lease are inserted for convenience of
reference only and in no way define, limit or enlarge the scope or meaning
of this Lease or any provision thereof.
40 INTERPRETATION
This Lease shall be construed and interpreted in accordance with the laws
of the Province of Quebec. If for any reason whatsoever, any term,
obligation or condition of this Lease or the application thereof to any
person, firm or corporation or to any circumstances is to any extent held
to be or is rendered invalid, unenforceable or illegal, then such term,
obligation or condition shall be deemed to be independent of the remainder
of this Lease and to be severable and divisible therefrom, and its
invalidity, unenforceability or illegality shall not affect, impair or
invalidate the remainder of this Lease or any part thereof and the
remainder of this lease not affected, impaired or invalidated will continue
to be applicable and enforceable to the fullest extent permitted by law
against any person, firm or corporation and to any circumstances other than
those as to which it has been held or rendered invalid, unenforceable or
illegal;
Words importing the singular number only shall include the plural and
vice-versa and words importing the masculine gender shall include the
feminine gender and words importing persons shall include firms and unless
the contrary intention appears the words "Lessor" and "Lessee" whenever
they appear in this Lease shall mean respectively "Lessor, its executors,
administrators, successors and/or assigns" and "Lessee, its executors,
administrators, successors and/or assigns" and if there is more than one
Lessee or Lessor or the Lessee or Lessor is a female person or a
corporation this Lease shall be read with all grammatical changes
appropriate by reason thereof; and all covenants, liabilities and
obligations shall be joint and several.
41. OPTION TO CANCEL
The Lessee shall have a one-time option to cancel the Lease at the end of
the third year of the Term, namely, May 31, 2004, provided written notice
of its intention to cancel is given to Lessor twelve (12) months prior to
the applicable cancellation date. Should the Lessee not exercise its right
to cancel the Lease without the stipulated
16
delay (May 31, 2003) the Lease will automatically continue for the balance
of the Lease term.
42. BROKER
Lessee warrants that the present Lease was not negotiated through any
broker or agent and undertakes to hold Lessor free and harmless from any
commission claimed.
43. INTERVENTION
And Hereto Intervened,
Icon Health & Fitness Inc. (the "Surety") being Shareholder of and/or
having business relations with the Lessee, having acquainted itself with
the provisions of this Lease and being satisfied therewith, does hereby
intervene and bind itself jointly and severally (solidarily) with the
Lessee for the performance of all of the obligations of the Lessee in
virtue of the present Lease, waving the benefit of division and discussion,
and making the entire matter its personal affair. The Surety's
responsibility hereunder shall remain in full force and effect in favour of
the Lessor, its successors, purchasers or assigns in the event of the
transfer, assignment or sale of the foregoing Lease or the property
comprising the Leased Premises by agreement, by Court Judgement, or by
operation of law, or in the event of the amaigamation or merger of the
Lessor or the Lessee. Furthermore, such a suretyship shall in no way be
terminated in the event of the insolvency or bankruptcy of the Lessee, the
taking of possession of the Leased Premises by a Trustee or Receiver of the
Lessee or of its assets or by the Lessor or any third party, the Surety's
obligations applying with respect to the damages suffered by the Lessor or
its successors, purchasers or assigns and any measures taken by the Lessor
or its successors, purchasers or assigns to mitigate damages in the event
of a default by the Lessee, shall in no way terminate this suretyship or
prejudice any claim by the Lessor, its successors,, purchasers or assigns
against the Surety under the present suretyship. Notwithstanding the
provisions of article 1881 of the Civil Code of Quebec, the obligations of
the Surety towards the Lessor, its successors, purchasers or assigns will
extend to any renewal of the Lease.
44. LANGUAGE
The parties and the Surety hereby confirm that they have requested that the
present document be drafted in the English language.
Les parties confirment par les presentes qu'ils ont demande que le present
document soit redige dans la langue anglaise.
IN WITNESS WHEREOF THE PARTIES HERETO AND THE SURETY HAVE SIGNED THE FOREGOING
DEED OF LEASE AS FOLLOWS:
17
IN MONTREAL, PROVICE OF QUEBEC, THIS 26th DAY OF JANUARY 2001
INDOME 43 INC.
Per: /s/ James Lyng
----------------------------
/s/ Andree Nelson LESSOR
- --------------------------- President
WITNESS
18
IN MONTREAL, PROVICE OF QUEBEC, THIS 26TH DAY OF JANUARY 2001
ICON OF CANADA INC.
Per: /s/ M. Joseph Brough
--------------------------
/s/ ILLEGIBLE LESSEE
- --------------------------------
WITNESS
IN __________________, ____________________ THIS _____ DAY OF ___________ 200_
ICON HEALTH & FITNESS INC.
Per: /s/ M. Joseph Brough
--------------------------
/s/ ILLEGIBLE Duly Authorized
- --------------------------------
WITNESS
19
EXTRACT OF A MEETING OF THE BOARD OF DIRECTORS OF:
INDOME 43 INC.
EFFECTIVE DATE: NOVEMBER 1st, 2000
ON MOTION DULY MADE, SECONDED AND UNANIMOUSLY CARRIED, IT WAS RESOLVED:
1. THAT this Company enter into an Agreement of Lease with Icon of Canada Inc.
concerning the premises situated at 500 Lajeunesse Blvd. West, St. Jerome,
Quebec in accordance with the draft Agreement of Lease as submitted to the
Meeting;
2. THAT Mr. James Lyng be authorized to sign the said Deed of Lease for and on
behalf of the Company together with any and all other documents necessary
to complete same as well as to make any and all changes, adjustments and
additions that are in the interest of the Company.
CERTIFIED A TRUE EXTRACT OF A MEETING
OF THE BOARD OF DIRECTORS OF THE
COMPANY HELD ON THE 1st DAY OF
NOVEMBER, 2000
/s/ James Lyng
-------------------------------------
SECRETARY - JAMES LYNG
20
EXTRACT OF A MEETING OF THE BOARD OF DIRECTORS OF:
ICON OF CANADA INC.
EFFECTIVE DATE: NOVEMBER __, 2000
ON MOTION DULY MADE, SECONDED AND UNANIMOUSLY CARRIED, IT WAS RESOLVED:
3. THAT this Company enter into an Agreement of Lease with Indome 43 Inc.
concerning the premises situated at 500 Lajeunesse Blvd. West, St. Jerome,
Quebec in accordance with the draft Agreement of Lease as submitted to the
Meeting;
4. THAT Mr. Richard Hebert be authorized to sign the said Deed of Lease for
and on behalf of the Company together with any and all other documents
necessary to complete same as well as to make any and all changes,
adjustments and additions that are in the interest of the Company.
CERTIFIED A TRUE EXTRACT OF A MEETING
OF THE BOARD OF DIRECTORS OF THE
COMPANY HELD ON THE 1ST DAY OF
NOVEMBER, 2000
/s/ ILLEGIBLE
-------------------------------------
SECRETARY
21
EXTRACT OF A MEETING OF THE BOARD OF DIRECTORS OF:
ICON HEALTH AND FITNESS INC.
EFFECTIVE DATE: NOVEMBER __, 2000
ON MOTION DULY MADE, SECONDED AND UNANIMOUSLY CARRIED, IT WAS RESOLVED:
5. THAT this Company enter into an Agreement of Lease with INDOME 43 Inc. and
Icon of Canada Inc. concerning the premises situated at 500 Lajeunesse
Blvd. West, St Jerome, Quebec in accordance with the draft Agreement of
Lease as submitted to the Meeting;
6. THAT ________________________________ be authorized to sign as Intervenant
in the said Deed of lease for and on behalf of the Company together with
any and all other documents necessary to complete same as well
CERTIFIED A TRUE EXTRACT OF A MEETING
OF THE BOARD OF DIRECTORS OF THE
COMPANY HELD ON THE ___ DAY OF
NOVEMBER, 2000
_____________________________________
SECRETARY
22
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