Exhibit 10.6
AEROTERM A,B,C
Mirabel
THIS AGREEMENT OF LEASE made as of the 1st day of March, 1997.
BETWEEN: AEROTERM DE MONTREAL, INC., a company
incorporated under the laws of Canada,
(hereinafter called the "Lessor"),
OF THE FIRST PART
AND: ICON OF CANADA INC., a company incorporated
under the laws of Quebec,
(hereinafter called the "Lessee"),
OF THE SECOND PART
ARTICLE I
RECITALS
WHEREAS the Lessor has obtained a lease from Aeroports do Montreal
(hereinafter referred to as the "Head Lease") with respect to a certain parcel
of land (the "Land") situated in the Montreal International Airport (Mirabel) at
Mirabel, Province of Quebec. Canada;
WHEREAS the Lessor has acquired buildings and improvements situated on
the Land comprising approximately 642,000 square feet and containing
approximately 500,000 square feet of net rentable floor space, known as
buildings "A", "B", and "C" (together defined as the "Building") (hereinafter
the said Land and Building collectively referred to as the "Property") designed
for the use of air cargo operations and related activities and services shown on
Schedule "A";
THE PARTIES HAVE AGREED AS FOLLOWS:
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ARTICLE 2
LEASE & PREMISES
2.1 The Lessee shall lease a portion of the building known as Building "A"
containing a rentable area (the Rentable Area as hereinafter defined in
Article 4.6) of approximately two hundred and three thousand (203,000)
square feet of warehouse space as outlined in red and including
approximately three thousand (3,500) square feet of office space on two
levels as outlined in blue ("Premises") the whole as shown on Schedule
"B" attached hereto;
The Premises shall be delivered in phases. Beginning March 1, 1997,
Lessee shall lease a minimum of forty six thousand (46,000) square feet
(outlined in green) and shall lease spaces becoming vacant between March
1, 1997 and July 1, 1997, after notice of availability ("Notice") of
space from Lessor. If Lessee does not want to take over the vacant spaces
immediately Lessee shall notify Lessor in writing within three (3)
working days of the date of Notice of availability of space from Lessor.
If Lessee does not respond to the Notice within three working days, the
space will be considered to be leased to Lessee seven working days after
Notice. The entire Premises will be available to Lessee no later than
July 7, 1997.
2.2 The Lessor hereby leases the Premises as is to the Lessee together with
the use in common with others of all common areas on the Building.
ARTICLE 3
TERM
3.1 The present lease is granted for a term (hereinafter called the "Term")
of three (3) years and four (4) months commencing on the 1st day of
March, 1997 and ending on the last day of June, 2000.
3.2 The present Lease shall terminate ipso facto and without notice or demand
on the date stated in Article 3.1 of this Lease and any continued
occupation of the Premises by Lessee shall not have the effect of
extending the period or of renewing the present Lease for any period of
time, the whole notwithstanding any provisions of law and Lessee shall be
presumed to occupy the Premises against the will of Lessor who shall
thereupon be entitled to make use of any and all remedies by law
providing for the expulsion of Lessee and for damages, provided, however,
that Lessor shall have the right at its option in the event of such
continued occupation by Lessee to give to Lessee at any time a written
notice that Lessee may continue to occupy the Premises under a tenancy
from month to month in consideration of a minimum rent equal to that
provided in Article 4
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hereof plus one hundred percent (100%) thereof, payable monthly and in
advance and otherwise under the same terms and conditions as are herein
set forth.
ARTICLE 4
RENT
4.1 Any amount and any obligation as is not expressly declared herein to be
that of Lessor shall be deemed to be the obligation of Lessee to be
performed by and at the expense of Lessee.
4.2 The Lessee shall pay to Lessor the following annual rent plus applicable
sales taxes, throughout the term of the Lease, payable in lawful money of
Canada, in advance in equal, consecutive, monthly installments on the
first (1st) day of each calendar month:
4.2.1 Minimum Rent
An amount of three dollars and sixty cents ($3.60) per square foot
of Rentable Area per annum for the period commencing on March 1,
1997 through June 30, 1999. Between March 1, 1997 and June 30,
1997, the monthly rent shall be adjusted to reflect the space
leased by the Lessee with a minimum of thirteen thousand eight
hundred dollars ($13,800.00). Rent shall be charged for the new
spaces being leased seven (7) days after Notice of availability
from Lessor. Beginning July 1, 1997, the monthly Rent shall be
sixty thousand nine hundred dollars (60,900.00) through June 30,
1999. Between July 1, 1999 and June 30, 2000 the minimum rent
shall be three dollars and seventy one cents ($3.71) per square
foot of Rentable Area per annum paid in equal monthly installments
of sixty two thousand seven hundred and sixty dollars and eighty
three cents ($62,760.83).
4.2.1A Rental Credit
For the month of March, 1997, Lessee shall receive a rental credit
equivalent to the monthly rent for the forty six thousand (46,000)
square feet to a maximum of thirteen thousand eight hundred
dollars ($13,800.00). For the month of July, 1997, Lessee shall
receive a rental credit equivalent to the monthly rent for one
hundred fifty seven thousand (157,000) square feet, to a maximum
of forty seven thousand one hundred dollars ($47,100.00).
4.2.2 Additional Rent
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The Lessee's Proportionate Share of the Operating and Maintenance
Costs (as these terms are hereinafter defined, calculated and
adjusted) are included in the Minimum Rent.
4.3 Should the Term of the Lease take effect on any day other than the first
day of a month shall be the monthly rent multiplied by the days in the
month in which the Lessee is in occupancy and divided by the number of
days in the month. This amount is due and payable on the first day of the
Term of the Lease.
4.4 The term "Operating and Maintenance Costs" shall include the cost of:
4.4.1 The Basic Land Rent and Aerial right, the Airport Maintenance
Charge for the Land and the Airport Maintenance Charge for Aerial
Right imposed to Lessor pursuant to the terms of the Head Lease;
4.4.2 all real estate, municipal and school taxes imposed on the
Property, including the Municipal Surtax, together with any
capital taxes of the Lessor which the Lessor may reasonably
attribute to the Property;
4.4.3 the cost of exterior ground maintenance, including snow removal;
4.4.4 insurance premiums on policies obtained by the Lessor in regard to
the Property and the revenues derived therefrom;
4.4.5 the cost of preventative maintenance only on the heating and HVAC
units in the Premises.
4.4.6 the cost of water, electricity and natural gas for lighting and
heating the Premises and air conditioning and ventilating the
offices.
4.5 Should the Lessee install any Lessee Improvements or operate or maintain
offices within the warehouse space of the Premises, then the Lessor
reserves the right to charge to the Lessee any additional expenses
incurred in the operation and maintenance of the Property as a result of
such improvements or use. The normal occupation and utilization of the
offices defined in Article 2.1 and the use (as defined in Article 12.1)
of the warehouse space require no such in extra charges.
4.6 The term "Proportionate Share" shall mean that faction of the Operating
and Maintenance Costs of which the numerator is the number of square
rentable feet of the Premises and the denominator is the number of Net
Rentable Area of the Building. "Rentable Area", in relation to the
Premises, means the area of the Premises calculated in the case of floor
space situate in the warehouse areas, from
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the exterior face of exterior walls and from the centre line of all
partitions dividing the Premises from adjoining premises; and in the case
of floor space situate in the office areas, from the centre line of
exterior walls and of all partitions dividing the Premises from adjoining
premises, and from the corridor face of partitions dividing rentable
premises from corridors;
provided that if any portion of exterior walls is recessed from the
overall exterior line of the Building, the last mentioned line shall be
deemed to be the line of the exterior face of the exterior wall; and
provided further that there shall be no deduction made for any column,
duct, pipe, facility, installation or other recess or obstructions
(whether of a similar or dissimilar kind) within or intruding within the
aforesaid perimeter of such space; and provided further that the
certificate of the Lessor's Architect or Professional Engineer as to
calculation of that space to which the term is applied shall be
conclusive;
ARTICLE 5
OBLIGATIONS OF THE LESSEE
The Lessee hereby agrees to promptly fulfill the following obligations:
5.1 Lessee shall pay the rent and all other sums provided for herein
without demand, set-off, compensation or deduction whatsoever.
5.2 Lessee will be responsible for waste removal.
5.3 Lessee shall maintain the Premises as a careful owner would and
shall be responsible for and pay the cost of all repairs of every
nature and kind to the Premises arising out of the occupation and
usage of Lessee, other than repairs which would constitute a major
structural repairs to the Building unless due to the gross
negligence of Lessee. The Lessor may enter and view the state of
maintenance and repair of the Premises. Should Lessor deem it
necessary to undertake any repairs or to do anything which is
required to be undertaken or done by Lessee under the Lease, then
the Lessee shall pay to Lessor as a fee for supervision or
carrying out of Lessee's obligations, an amount as additional rent
equal to fifteen percent (15%) of the cost of the obligation,
repairs, work, carried out by or under supervision of Lessor,
which amount shall be in addition to the cost of such obligation
or work and shall be collectible by Lessor as if it were rentals
in arrears.
5.4 Lessee shall pay all business and other taxes (including taxes
related to or resulting from improvements made by the Lessee),
charges, rates, duties
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and assessments levied in respect of the Lessee's maintenance and
occupancy of the Premises or in respect of the personal property
or business of the Lessee on the Premises as and when the same
become due. Nevertheless, the Lessee may appeal such taxes,
charges, rates, duties and assessments to the proper authorities.
ARTICLE 6
DEFAULT BY LESSEE
6.1 In addition to any other right or remedy available to it, the
Lessor shall have the same rights and remedies in respect of
default of any payment of any amount to be paid by the Lessee to
the Lessor under the terms of this Lease as the Lessor would have
in the case or default in payment of rent, notwithstanding that
such payment may not be described as a payment of rent.
6.2 Each of the following events (hereinafter called an "Event of
Default") shall be a default hereunder by Lessee and a breach of
this Lease:
6.2.1 if Lessee shall violate any covenant or agreement providing
for the payment of rent, including Minimum Rent or
Additional Rent;
6.2.2 if Lessee shall assign, transfer, encumber, sublet or
permit the use of the Premises by others except in a manner
herein permitted;
6.2.3 if Lessee becomes insolvent or shall be adjudicated a
bankrupt or make a general assignment for the benefit of
creditors or take or attempt to take the benefit of any
insolvency or bankruptcy legislation, or if any order shall
be made for the winding-up of Lessee or other termination
of the corporate existence of Lessee;
6.2.4 if a receiver or trustee shall be appointed for the
property of Lessee or any part thereof;
6.2.5 if any execution be issued pursuant to a judgment rendered
against Lessee;
6.2.6 save where otherwise permitted hereunder if any person
other than Lessee has or exercises the right to manage or
control the Premises, any part thereof, or any of the
business carried on therein other than subject to the
direct and full supervision and control of Lessee;
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6.2.7 if Lessee shall be in default in fulfilling any of the
other covenants and condition of this Lease and such
default shall continue for 15 days after written notice
thereof from Lessor to Lessee.
6.3 During the continuance of any such Event of Default, Lessor may,
at its option, terminate this Lease by giving to Lessee a written
notice of its intention, and the term hereof shall expire at noon
upon the fifteenth day following the date upon which such notice
is given as fully and completely as if that day were the date
fixed for the expiration of the term without the necessity of
further notice or legal process whatsoever provided always,
however, that Lessee shall remain liable to pay all amounts and
damages then due or to become due, including the liquidated
damages as hereinafter provided. Lessee upon such a termination of
this Lease shall thereupon quit and surrender the Premises to
Lessor or if not yet in possession shall no longer have any right
to possession of the Premises. Lessor, its agent and servants, may
immediately, or at any time thereafter, re-enter the Premises and
dispossess Lessee, and remove any and all persons and any or all
property therefrom, either by summary dispossession proceedings or
by any suitable action or proceeding at law, or by force or
otherwise, without being liable to prosecution or damages
therefor.
In any such Event of Default, save in Event of Default 6.2.3,
6.2.4 and 6.2.6 hereof, the Lessee shall be entitled to remedy the
Event of Default after the Lessor has given its termination
notice, provided that it remedies the Event of Default within the
fifteen day period set forth in the preceding paragraph.
Lessee specifically acknowledges that without prejudice to any
other right or remedy, Lessor may, after the giving of the notice
herein above referred to, cease to furnish any services hereunder
and without limiting the foregoing may terminate or interrupt
electrical service to the Premises.
6.4 In any of the foregoing cases Lessee shall pay any and all monies
payable under this Lease up to an including the day of such
termination or re-entry whichever shall be the later.
In addition there shall immediately become due an payable in one
lump sum as liquidated damages and not a penalty the aggregate
rental for a period of eight (8) months being the estimated time
required for re-leasing the Premises or, if less than eight (8)
months remain of the term hereof, the aggregate of rental for the
unexpired portion of the term.
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6.5 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.
6.6 Lessee shall pay interest compounded monthly on all rents and or
amounts collectible as rent under the terms of this Lease not paid
when due at a rate per annum of five (5) percentage points above
the prime lending rate at the principal branch of Lessor's bank on
the due dates of such rents or amounts.
ARTICLE 7
INTENTIONALLY DELETED
ARTICLE 8
DAMAGE OR DESTRUCTION OF PREMISES
8.1 In the event that the Premises or the Building shall be destroyed
or damaged by fire or other casualty, then:
8.1.1 irrespective of whether the Premises or access thereto are
affected if the Property or any part or parts thereof shall
at any time during the Term or any renewal thereof be so
badly damaged or destroyed by reason of any cause that in
the opinion of the Lessor's architect (to be given within
thirty (30) days from said damage or destruction) the
Building cannot be repaired or rebuilt within one hundred
and eighty (180) days from the date on which construction
can be commenced, then this Lease may be terminated and
ended by the Lessor or Lessee by notice in writing to the
other party mailed within thirty (30) days after the giving
of the opinion of the Lessor's architect as aforesaid;
provided, however, that, in the event of notice of
termination given by the Lessor or the Lessee pursuant to
this clause, the Lessee shall deliver up possession of the
Premises sixty (60) days after the notice of termination
and the rent and any other payments for which the Lessee is
liable under this Lease shall be apportioned and paid to
the date of such termination and provided further that, if
the Premises or access thereto shall also have been damaged
to the extent of rendering the same useless for the purpose
for which they were leased, then rent and any other
payments for which the Lessee is liable under this Lease
shall be apportioned to the date of such damage or
destruction.
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8.1.2 if the Premises or access thereto shall, at any time during
the Term hereby created or any renewal thereof, be so badly
damaged or destroyed by reason of any cause that, in the
opinion of the Lessor's architect (to be given within
thirty (30) days from said damage or destruction) cannot be
repaired or rebuilt within one hundred and eighty (180)
days from the date on which construction can be commenced,
then this lease may be determined and ended by either party
by a notice in writing to the other mailed within thirty
(30) days after the giving of the opinion of the Lessor's
architect as aforesaid; provided, however, that, in the
event notice of termination is given pursuant to this
clause, the rent and any other payments for which the
Lessee is liable under this Lease shall be apportioned and
paid to the date of such damage or destruction and the
Lessee shall deliver up possession of the Premises to the
Lessor sixty (60) days after the notice of termination.
8.1.3 if damage or destruction is, in the opinion of the Lessor's
architect (to be given within thirty (30) days from said
damage or destruction) capable of being repaired or rebuilt
within one hundred and eighty (180) days from the date on
which construction can be commenced, then the Lessor shall
commence such repair and rebuilding as soon as practicable
and proceed with reasonable promptness to complete the said
repair and rebuilding. Notwithstanding anything to the
contrary, it is understood that if damage or destruction is
not insurable under fire and all risks coverage, then
Lessor shall have the option, at its sole discretion, to
commence such repair and rebuilding as soon as practicable
and proceed with reasonable promptness to complete the said
repair and rebuilding or to terminate and end this Lease by
a notice in writing to the Lessee mailed within thirty (30)
days after the giving of the opinion of the Lessor's
architect as aforesaid; provided, however, that , in the
event notice of termination is given pursuant to this
clause, the rent and any other payments for which the
Lessee is liable under this Lease shall be apportioned and
paid to the date of such damage or destruction and the
Lessee shall deliver up possession of the Premises to the
lessor sixty (60) days after the notice of termination.
8.1.4 if the Premises or access thereto shall at any time during
the Term or any renewal thereof be damaged or destroyed as
to render the Premises or access thereto wholly or
partially unfit for occupancy, the rent and any other
payments for which the Lessee is liable
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under this Lease or a proportion thereof, according to the
nature and extent of the damage or destruction, shall abate
until the Premises shall have been rebuilt or made fit for
the purposes of the Lessee.
8.2 If any damage or destruction by fire or other cause to the
Building or Premises, whether partial or not, is due to the fault
or neglect of Lessee, its officers, agents, employees, servants,
visitors or licensees, without prejudice to any other rights and
remedies of Lessor:
8.2.1 Lessee shall be liable for all costs and damages;
8.2.2 the damages may be repaired by Lessor at Lessee's expense;
8.2.3 Lessee shall forfeit its right to terminate this Lease as
provided in Article 8.1.1 or 8.1.2;
8.2.4 Lessee shall forfeit any abatement of rent provided in this
Article 8 and rent shall not abate.
ARTICLE 9
SUBLET AND ASSIGNMENT
9.1 Except as provided in Article 9.3, the Lessee shall not assign the
Lease or sublet the Premises in whole or in part without the prior
written authorization of the Lessor. Notwithstanding such
assignment or subletting, the Lessee shall remain solidarily
responsible with the sublessee or assignee.
9.2 Lessor shall have a period of thirty (30) days upon notice from
the Lessee in which to either i) accept or refuse the proposed
sublet or assignment, or ii) to terminate this Lease on the later
of the date of assignment set forth in the notice or thirty (30)
days from said notice.
9.3 Lessee may assign this Lease in whole or in part or any subsidiary
or affiliate within the meaning of the Canada Business
Corporations Act or amalgamate with any other person, but such
assignment shall not affect the guarantee of Icon Health & Fitness
Inc. hereunder.
ARTICLE 10
ALTERATIONS, REPAIRS, CHANGES, ADDITIONS, IMPROVEMENTS
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10.1 Without the prior written consent of the Lessor which will not be
unreasonably withheld:
10.1.1 the Lessee will not make any alterations, repairs, additions,
changes or improvements (collectively the "Improvements") or
permit the same to be made in or to the Premises;
10.1.2 The Lessee will not deface or mark any part of the Premises and
will not permit any hole to be drilled or made or nails,
screws, hooks or spikes to be driven into the interior walls,
doors, floors or stone or brick work or other exterior facing
material of the Premises, or any appurtenances thereto;
Any Improvements made to the Premises by the Lessee at any time during
the currency of this Lease, shall be at the sole risk, cost and
expense of the Lessee and made to the satisfaction of the Lessor, and
the Lessee shall bear all operating costs in respect of any such
Improvement so made.
The Lessor shall be entitled to impose as a condition of its consent
to the Improvements the requirement that the specifications of such
Improvements shall be in accordance with the Lessor's general standard
in the Building, and at the Lessor's option that the work be done by
the Lessor at the cost of the Lessee be it understood that said cost
(taking into account the 15% administrative and supervisory fee) shall
be reasonably competitive. Lessee shall, in such a case, pay to
Lessor, as an administrative and supervisory fee in respect of any and
all Improvements made to the Premises, an amount as additional rent
equal to the fifteen percent (15%) of the cost of such work.
10.2 At the expiration or earlier termination of this Lease for whatever
reason or upon Lessee vacating the Premises with the permission of
Lessor prior to the expiration hereof, Lessee shall, as required by
Lessor, remove all, or certain specified Improvements including,
without limitation, all alterations and/or Improvements installed by
Lessee in the Premises or installed by Lessor in the Premises or
installed by Lessor in the Premises for Lessee (excluding the work,
alterations and improvements described in Article 28.1), pursuant to
the terms of this Lease or pursuant to the terms of any prior lease by
Lessee of the Premises and regardless of whether Lessor or Lessee is
or was responsible for the cost thereof. Lessee shall thereupon become
obligated to restore the Premises to their original condition, (save
for such alterations and/or Improvements as Lessor permits to remain).
Should Lessee not be required to remove any of such
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alterations and/or Improvements, they shall, in the case of
alterations, remain in the Premises as the property of Lessor and in
the case of all other Improvements ipso facto upon the happening of an
Event of Default as defined in Article 6 hereof or upon the expiration
or earlier termination of this Lease for any other reason, be deemed
to have become the property of Lessor without any compensation being
paid therefor.
10.3 The Lessee shall promptly pay all charges incurred by the Lessee for
any work, materials or services that may be done, supplied or
performed in respect of the Premises and shall forthwith discharge any
hypothec registered against the Premises and keep the Property free
from hypothecs. Should the Lessee fail to comply with this paragraph,
the Lessor may, but, shall be under no obligation to pay into Court
the amount required to obtain a discharge of any such hypothec in the
name of the Lessee and any amount so paid together with all costs in
respect of such proceedings shall be forthwith due and payable by the
Lessee to the Lessor as additional rent.
ARTICLE 11
SIGNAGE
11.1 The Lessee may construct, erect, place, install or display on or in
the Property or on the Premises only those posters, advertising signs
or displays for which the consent in writing of the Lessor has been
obtained.
The number, location, color, size, style, character and materials of
the said poster, signs and displays shall be such as the Lessor shall
determine and shall be in accordance with all applicable by-law
requirements. Lessee shall be responsible for any and all damages
incurred by the removal of such signage and shall restore that portion
of the Building to its original condition, save normal wear and tear.
The cost of constructing, erecting and maintaining such signs shall be
the sole responsibility of the Lessee.
ARTICLE 12
USE
12.1 The Lessee undertakes and agrees to occupy and use the Premises for
storage and warehousing of non-perishable light finished goods only in
conformity with the location, design and structure thereof, or any
applicable law, by-law, ordinance or regulation, good morals and
public order or in any manner as to not cause any annoyance or
disturbance to
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any neighboring lessees. No manufacturing will be allowed in the
Premises. The Lessee shall accede to and abide by Federal, Provincial
and/or Municipal or Local Environmental Protection Statutes,
Regulations, and By-Laws.
ARTICLE 13
NON-RESPONSIBILITY OF LESSOR
13.1 There shall be no abatement form or reduction of the rent due
hereunder nor shall Lessee be entitled to damages, costs, losses or
disbursements from Lessor regardless of the cause or reason therefor
(except where such cause or reason is Lessor's direct gross fault or
negligence). Neither shall there be any claim of any nature whatsoever
by Lessee against Lessor, nor any abatement nor reduction of rent, nor
recovery by Lessee from Lessor on account of partial or total failure
of, damage caused by, lessening of supply of, or stoppage of, heat,
air-conditioning, electric light, power, water, plumbing, sewerage,
elevators, or any other service, nor on account of any damage or
annoyance occasioned by water, snow, or ice being upon or coming
through the roof, skylight, trapdoors, windows, or otherwise, or by
any defect or break in any pipes, tanks, fixtures, or otherwise
whereby steam, water, snow, smoke or gas, leak, issue or flow into the
Premises, nor on account of any damage or annoyance occasioned by the
condition or arrangements or any electric or other wiring, nor on
account of any damage or annoyance arising from any acts, omissions,
or negligence or environmental contamination of co-lessees or other
occupants of the Building, or of owners or occupants of adjacent or
contiguous property, nor on account, directly or indirectly, of the
making of "grosses reparations", alterations, repairs, improvements,
or structural changes to the Building, or any thing or service therein
or thereon or contiguous thereto provided the same shall be made with
reasonable expedition.
Without restricting the foregoing, Lessor shall not be liable for any
other damage to or loss, theft, or destruction of property, or death
of, or injury to, persons at any time in or on the Premises or in or
about the Building, however occurring.
Notwithstanding the foregoing, liability of Lessor shall under no
circumstances extend to any property other than normal fixtures and
furniture which term, without limiting its normal meaning, shall not
include securities, specie, papers, typewriters, electrical computers,
or other machines or other similar items.
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13.2 Lessor shall not be liable for any damages suffered by Lessee should
any delay in the completion of the Premises in any way delay or
inconvenience the occupation thereof or the enjoyment of the Building
or accessories or services.
13.3 Lessee covenants and agrees that it will protect, save and keep Lessor
harmless and indemnified against any penalty or damage or charge
imposed for any violation of any laws or ordinances occasioned by
Lessee or those connected with Lessee, and that it will protect,
indemnify, save and keep harmless Lessor against any and all damage or
expense arising out of any accident or other occurrence on or about
the Premises causing injury to any person or property (except to the
extent Lessor may be otherwise liable therefor), and against any and
all damage or expense arising out of any failure of Lessee in any
respect to comply with and perform all the requirements and provisions
of this Lease.
ARTICLE 14
DAMAGES TO AIRPORT AND PROPERTY
14.1 If at any time during the Term any damage or injury should be
occasioned to any works or property of Her Majesty the Queen or the
airport authority on the Montreal International Airport (Mirabel) or
to any works or property of the Lessor in the Building other than the
Premises by reason of or on account of the operations of the Lessee,
or any action taken or things done or maintained by virtue thereof,
then and in every such case, the Lessee shall, immediately upon
written notice thereof from the Lessor, repair, rebuild and restore
the same or the Lessor or the airport authorities may, at its or his
option, repair such damage or injury, in which case the Lessee shall,
upon demand forthwith, repay and reimburse the Lessor, the airport
authorities or Her Majesty the Queen, as the case may be, for all
reasonable costs and expenses connected therewith.
14.2 The sewage facilities of Her Majesty the Queen or of the airport
authority servicing the Property shall not be sued for any other
purposes than that for which they were constructed and no sweeping,
garbage, rubbish, rages, ashes, grease or other like substance shall
be allowed to enter the said facilities and the Lessee shall indemnify
and reimburse the Lessor forthwith upon receipt of accounts therefor
for any cost or expenses incurred by the Lessor pursuant to the Head
Lease for the repair and cleaning of any blockage of the said sewage
facilities by the Lessee and the officers, servants, agents and
customers of the Lessee.
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
15
ARTICLE 15
LESSEE CARE AND RESPONSIBILITY
15.1 Lessee will, at its own expense, maintain the Premises in a clean and
sanitary condition at all times in accordance with a first class
building and in accordance with municipal by-laws. The Lessee shall
use the common areas as if it were a careful and prudent owner.
15.2 Lessee shall place all garbage and rubbish in suitable containers at
such location either within or without the Premises as shall be
indicated by Lessor and Lessor shall remove all such garbage and
rubbish at Lessee's expense.
ARTICLE 16
ENVIRONMENTAL RESPONSIBILITY
16.1. Without limiting the generality of Article 13.1, the Lessee agrees as
follows:
16.1.1 During the term of the Lease, the Lessee shall comply with any
applicable federal, provincial, municipal or local laws,
regulations, orders or approvals of all governmental
authorities relating to environmental matters.
16.1.2 No hazardous or toxic materials, substances, pollutants,
contaminants or wastes shall be released into the environment,
or deposited, discharged, placed or disposed of at, on or near
the Premises as a result of the use of the Premises or the
Building by the Lessee.
16.1.3 The Lessee will indemnify and hold the Lessor harmless from
and against any and all actions, losses, liabilities, damages
claims, obligations, debts, costs and expenses (including
solicitors' fees), known or unknown, contingent or absolute,
arising out of or resulting from such environmental release or
discharge or with respect to any breach of any covenant set
out herein, which indemnity will survive the expiry or other
termination of this Lease.
16.2 The Lessor will indemnify and hold the Lessee harmless from and
against any and all actions, losses, liabilities, damages, claims,
obligations, debts,
Initials: ______/______/__________
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16
costs and expenses (including solicitors' fees), known or unknown,
contingent or absolute, arising out of or resulting from any
environmental release or discharge by Lessor.
ARTICLE 17
COMPLIANCE WITH LAW
17.1 The Lessee will comply with all provisions of law relating to the use
and occupation of the Premises and such use shall be in conformity
with all the requirements of the zoning and building by-laws of the
Municipality in which the Building is situated and with all other
municipal and governmental regulations which may affect the Premises.
Furthermore, Lessee shall comply with all police, fire, sanitary,
traffic control and other regulations imposed by airport, municipal,
provincial or federal authorities or made by fire insurance
underwriters and shall observe and obey all municipaland other
governmental regulations and other requirements governing the conduct
of any business carried on within the Premises and shall save the
Lessor harmless from any damages, charges, actions or costs for
non-compliance with or violation of any of the said laws and
requirements or for any liability for costs or for damage or injury or
any person or property resulting therefrom during the Term.
ARTICLE 18
ACCESS
18.1 The airport authority, its servants or agents and Lessor, its servants
and agents have full and free access to the Premises for inspection
purposes during normal business hours and to nay and every part of the
Premises.
18.2 Lessor shall request from Aeroports de Montreal the right to access
through gate Charlie with proper identification to permit drive-in
access for trucks through the first door at the back of the facility
(between column line 13 and 14). In the event that access through gate
Charlie cannot be granted, Lessor shall install a drive-in door at the
side of Building.
ARTICLE 19
HEAD LEASE
19.1 The Lessee is cognizant of the terms and conditions of the Head Lease,
and hereby covenants and agrees that its use and occupancy of the
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
17
Premises hereunder shall be subject to all the provisions of the Head
Lease and that, subject to all the terms of this Lease, it will not do
or omit to do or permit to be done or omitted to be done any act or
thing over which the Lessee has control if such act, thing or omission
would constitute a breach of any covenant in the Head Lease on the
part of the Lessor to be performed and observed; if for any reason,
the Head Lease shall at any time be terminated, the Lessee shall not
have or make any claim or demand in respect thereof against the
Lessor, except to the extent that the Lessee shall establish that such
termination shall have arisen by reason of the default of the Lessor
under the provisions of the Head Lease.
19.2 The Lessor herein shall do its utmost to ensure, by the institution of
legal proceedings if and whenever required, that the Head Lease shall
remain in full force and effect and that the Lessor thereunder shall
fulfill all of its obligations with a view that the rights of the
Lessee herein be adequately protected.
19.3 The Lessor shall not require the consent of the Lessee to amend the
Head Lease, the Lessee waiving hereby any right it may have to give
any such consent or consents, provided that such amendment does not
impose any increased obligation o0n the Lessee or diminish any of his
rights.
19.4 The Lessee covenants and agrees that the provisions of Clause 43 of
the Head Lease are hereby incorporated into this Lease.
ARTICLE 20
PARKING
20.1 The Lessee agrees that it shall not nor shall its employees, servants
and agents, park any vehicles around or adjacent to the Property
whether in roadways, customer parking areas, or otherwise, except for
those areas specifically designated, namely, in front of the Premises
on the south side of Cargo road A-4, and the Lessee will strictly
enforce this covenant insofar as its own employees, servants and
agents are concerned.
Provided that the minimum parking requirements established by any
governmental authority having jurisdiction over the Property are
respected and that there are sufficient parking spaces in the customer
parking area for the actual need for customer parking, the Lessor
shall be entitled to rent any of such excess parking spaces to anyone
(including the lessees of the Property and their employees, servants
and agents) at a rate to be set by the Lessor.
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
18
ARTICLE 21
RELOCATION
21.1 In the event that a court decision or other action delays the transfer
of international flights from Mirabel to Dorval, Lessor shall have the
right to relocate temporarily a portion or all of the Premises leased
to Lessee to reasonably comparable premises in buildings at the
Montreal International Airport (Dorval) or other comparable facilities
in the Mirabel area. If Premises are relocated, the minimum Rent for
the relocation term shall be calculated on the basis of two dollars
($2.00) per square foot per annum.
ARTICLE 22
RIGHT OF ENTRY
22.1 Lessor may, from time to time and at all reasonable times, enter the
Premises for the purpose of making any repairs, alterations and
reconstructions to the facilities and services in the Property or for
any purpose which it may deem necessary. During the last six (6)
months of the Term of the Lease, Lessee shall allow such person or
persons, as may be desirous of leasing the Premises to visit the same
on business days.
ARTICLE 23
INSURANCE REQUIREMENS
23.1 Lessee shall not do or commit any act upon the Premises or bring into
or keep upon the Premises any article which will affect the fire risk
or increase the rate of fire insurance 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 due and payable immediately by
Lessee and collectible as Additional Rent.
Should any insurance policy on the Building be canceled by the insurer
by reason of the use and 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
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
19
Premises a notice in writing of its intention so to do 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.
23.2 Lessee shall take out and keep in force during the Term of this Lease
property damage and Comprehensive General Liability Insurance
including Tenant Legal Liability in amounts and with policies in form
satisfactory from time to time to Lessor and with insurers acceptable
to Lessor. Comprehensive General Liability Insurance including Tenant
Legal Liability coverage shall in no event to be for less than five
million dollars ($5,000,000.00) and include Lessor as additional
insured and contain a Cross Liability Clause and Severability of
Interest Clause. The Lessee shall also insure his own equipment,
furniture, stock in trade, Alterations and Improvements on an All
Risks basis with a limit representing full replacement cost and add
Lessor as additional insured. The policy shall also contain a waiver
of subrogation in favor of Lessor and a loss payable clause in favor
of the Lessor as its interest may appear. Copies of each insurance
policy shall forthwith upon execution be delivered to Lessor. The cost
of premium for each and every such policy shall be paid by Lessee or
sub-lessee, as the case may be. Lessee shall obtain from the insurers
under such policies undertakings to notify Lessor in writing at least
ten (10) days prior to any cancellation thereof.
23.3 Lessee agrees that if Lessee fails to take out or to keep in force
such insurance Lessor will have the right to do so and to pay the
premium therefor and in such event Lessee shall repay to Lessor the
amount paid as premium, which repayment shall be collectible as
Additional Rent payable on the first day of the next month following
the said payments by Lessor.
23.4 Lessor shall, at all times during the term of this Lease, maintain in
full force and effect and pay all premiums for public liability and
general hazard insurance with a reputable insurance company or
companies covering the Property and all of Lessor's improvements
thereon (but not covering Lessee's personal property, inventory,
improvements or fixtures. The policy shall also contain a waiver of
subrogation in favor of Lessee. The general liability limits of said
policy or policies shall not be less than $1,000,000.00 per person and
per occurrence.
ARTICLE 24
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
20
RULES AND REGULATIONS
24.1 The Lessee and its employees, servants and agents will, at all
times during the Term of the Lese, observe and conform to such
reasonable rules and regulations as shall be made by the
Lessor from time to time, including the rules and regulations
set forth in Schedule "C" hereto and of which the Lessee shall
be notified, such rules and regulations being deemed to be
incorporated in and form part of these presents.
ARTICLE 25
OBLIGATIONS OF LESSOR
25.1 Lessor shall accomplish the following obligation:
25.1.1 Lessor shall supply the plant and equipment necessary
to heat, and ventilate the Property and it shall
operate, subject as herein provided and except during
the making of necessary repairs, the said plant and
equipment so that, to the extent feasible, the
Property may be kept at a reasonable temperature and
humidity comparative to the prevailing outside
conditions.
25.1.2 Lessor shall keep all common areas in the Building and
the Lands, including the paved areas in a net, clean
and tidy condition at all times, and properly lit by
electricity, except for the paved area. It shall also
clean all driveways, and side walks and the paved
areas and keep the same reasonably free from ice,
snow, refuse and the like.
ARTICLE 26
NOTICES
26.1 Any notice, demand or request or contemplated by any provision
of this Lease to be given or made shall be given in writing
and mailed by prepaid registered mail addressed, in the case
of the Lessor, or:
AEROTERM DE MONTREAL, INC.
751 Stuart Graham North
Suite 124
Dorval, Quebec
H4Y 1E7
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
21
and in the case of the Lessee, to:
ICON of Canada Inc.
900 de l'Industrie
St-Jerome, Quebec
J7Y4B8
and:
Brad Bearnson
ICON HEALTH & FITNESS INC.
1500S, 1000 W.
Logan, Utah
USA 94321
with a copy to the Premises. Any such notice, demand or request
shall be conclusively deemed to have been given or made on the
third business day following that on which such notice, demand or
request is mailed. Either party may, at any time, give notice in
writing to the other of any change of address of the party giving
such notice, and from and after the giving of such notice, the
address therein specified shall be deemed to be the address of
such party for the giving of notice hereunder. The word "Notice"
in this paragraph shall be deemed to include any request,
statement or other writing in this Lease provided or permitted to
be given by the Lessor to the Lessee or by the Lessee to the
Lessor.
ARTICLE 27
CONSTRUCTION
27.1 The Lessor shall have the right from time to time to alter the
Property or to alter the Building without the advice or consent of
the Lessee, provided that the alteration does not materially
interfere with the operations of the Lessee.
ARTICLE 28
IMPROVEMENTS
28.1 The Lessor, at its own expense, will perform the following work in
the Premises all in accordance with building standards. Install
demising wall of cinder blocks up to fifteen (15) feet and fence
above to the underside of
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
22
the joists. Remove block walls and warehouse offices between
column lines 17 and 33 at the warehouse level. The four block
walls on column lines 17, 25, 29 and 33 and offices on column line
33 will remain. An opening and door similar to the one on line 33
will be installed on the wall on line 17. Before March 1, 1997,
paint walls and replace carpet with vinyl flooring in the existing
offices, located to the east (left on plan) of column line 33.
Before July 1, 1997, paint walls and replace carpet with vinyl
flooring in the existing offices, located to the west of column
33.
ARTICLE 29
OPTION TO EXPAND
29.1 Upon confirmation of availability of space by Lessor, Lessee shall
have the right to lease additional warehouse space ("Expanded
Space") in Building "C" on the same terms and conditions save and
except for the term which shall be on a month-to-month basis and
Lessor and Lessee shall have the right to cancel that lease for
the Expanded Space with sixty (60) days prior written notice.
ARTICLE 30
SUCCESSORS AND ASSIGNS
30.1 The present Lease and everything contained herein shall inure to
the benefit of and be binding upon the successors and assigns, as
the case may be, of each of the parties hereto, subject to the
granting of consent by the Lessor as provided herein to any
sublease or assignment by the Lessee.
ARTICLE 31
ENTIRE AGEEMENT
31.1 The Lessor and the Lessee acknowledge that this Lease and its
Schedules constitute the entire agreement between them with
respect to the subject matter hereof, and they shall supersede all
previous negotiations, representations and documents relating to
the conclusion of the present Lease.
ARTICLE 32
GOVERNING LAW
Initials: ______/______/__________
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23
32.1 This Lease is governed by and shall be construed in accordance
with the law in force in the province of Quebec.
ARTICLE 33
PREAMBLE AND SCHEDULES
33.1 The parties agree that the preamble and the provisions set forth
in the Schedules "A", "B" and "C" annexed hereto, as the case may
be, shall form an integral part of the Lease as if therein recited
at length.
ARTICLE 34
PUBLICATION OF LEASE
34.1 Lessee shall be permitted at its own cost to publish a short form
of this Lease, upon obtaining Lessor's prior written consent as to
the form and content thereof.
ARTICLE 35
LANGUAGE
35.1 The parties declare that the present Agreement has been prepared
in the English language at their request. Les parties declarent
que le present contrat a ete redige en langue anglaise a leur
demande.
GUARANTEE
To these present intervenes, ICON HEALTH & FITNESS, INC., a corporation
duly constituted under the laws of Delaware, having its head office
at _____________________, hereby represented by _________________,
its ____________________, being duly authorized in virtue of ___________
_____________ (hereinafter the "Indemnifier") which acknowledges to have
taken cognizance of the terms and conditions of this Lease and hereby:
1. Unconditionally guaranties to the Lessor the prompt and complete
performance by the Lessee of each and every obligation, duty and
responsibility provided for in the Lease as if the Indemnifier was
a party to the Lease in the place and stead of the Lessee and
further agrees that it is solidarily bound with the Lessee for the
performance of said obligation, duty and responsibility;
Initials: ______/______/__________
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24
2. Agrees that upon an Event of Default under the Lease, the Lessor
may proceed against the Indemnifier as if it was the Lessee
without waiving any of its rights against the Lessee and without
any requirement that the Lessor shall first have proceeded against
the Lessee or had recourse to or exhausted any of its remedies
against the Lessee or any security, guarantee or other indemnity
or covenant or any other recourse or remedy of the Lessor in
respect of such default by the Lessee;
3. Agrees the obligations of the Indemnifier hereunder shall not be
released, discharged or affected by the bankruptcy or insolvency
of the Lessee or any disclaimer by any trustee in bankruptcy of
the Lessee or by the Lessee ceasing to exist (whether by
winding-up, forfeiture, cancellation or surrender of the charter,
or any under circumstance) or by any event terminating the Lease;
4. Agrees and declares that the Lessor and the Lessee have the right
to change, alter and vary the Lease and/or the terms or conditions
thereof and that the Lessor may in its discretion at any time
grant any extension of time on any liability of the Lessee to the
Lessor without notice to the Indemnifier;
5. Agrees and declares that the Indemnifier shall not be discharged
or released from any liability hereunder nor shall such liability
be in any way affected by such security, or extension of time as
aforesaid, or by any dealing or forbearance which may take place
between the Lessor and the Lessee;
6. Agrees that this guarantee is irrevocable and cannot be withdrawn
or terminated by the Indemnifier for any reason and shall survive
and continue to bind the Indemnifier notwithstanding the earlier
termination of the Lease;
7. Agrees that this guarantee is not attached to the fact that the
Indemnifier is the parent company of the Lessee;
8. Agrees that this guarantee shall be binding upon the Indemnifier
and its successors and assigns and shall inure to the benefit of
the Lessor and its successors and assigns;
9. Agrees that any notice, request or acceptance which may be
required to be permitted to be delivered or served upon the
Indemnifier shall be sufficiently given to or served upon it if in
writing and delivered by fax, registered mail or messenger at the
following address:
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
25
TO: ICON HEALTH & FITNESS, INC.
1500 S. 1000W.
Logan, Utah
USA 94321
Attention: Mr. Brad Bearnson
10. Declares that the Indemnifier has caused all necessary corporate
action to be taken by the directors of the Indemnifier to
authorize the execution and delivery of the present guarantee to
the Lessor;
11. Agrees that this guarantee shall be interpreted in accordance with
the laws of the Province of Quebec.
IN WITNESS WHEREOF, Lessor, Lessee and Indemnifier have duly executed and
signed these presents.
AEROTERM MONTREAL, INC.
_________________________________ Per:________________________________
Witness Lessor
_________________________________ ____________________________________
Witness Title
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
26
ICON OF CANADA INC.
/s/ ILLEGIBLE Per: /s/ ILLEGIBLE
---------------------------- ----------------------------
Witness Lessee
/s/ ILLEGIBLE PRESIDENT
---------------------------- --------------------------------
Witness Title
ICON HEALTH & FITNESS, INC.
____________________________ Per:__________________________________
Witness Indemnifier
____________________________ ______________________________________
Witness Title
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
27
SCHEDULE "A"
[GRAPHIC OMITTED]
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
28
SCHEDULE "B"
[GRAPHIC OMITTED]
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
29
SCHEDULE "C"
SCHEDULE OF RULES AND REGULATIONS FORMING PART OF THE WITHIN LEASE.
1. The roadways, parking lots, sidewalks, entrances, loading docks,
stairways and corridors of the AIR CARGO FACILITY shall not be
obstructed by any Lessees or used by them for any other purpose
that for ingress and egress to and from their respective offices,
and no Lessee shall place or allow to be placed in the hallways,
corridors or stairways any waste paper, dust, garbage, refuse or
any thing whatever that shall tend to make them appear unclean,
untidy or filthy.
2. The floors and windows that reflect or admit light into
passageways or into any place in the said building shall not be
covered or obstructed by any of the Lessees and no awnings shall
be put over any window; the water closets and other water
apparatus shall not be used for any purpose other than those for
which they were constructed and no sweepings, rubbish, rags, ashes
or other substance shall be thrown therein, and any damage
resulting to them for misuse shall be borne by the Lessee by whom
or by whose employee the damage was caused.
3. If in contravention to a provision of the within Lease, any sign,
advertisement or notices shall be inscribed, painted, or affixed
by the LESSEE on or to any part of the said building whatever,
then the LESSOR shall be at liberty to enter on the said premises
and pull down and take away such sign, advertisement or notice,
and the expense thereof shall be payable by the LESSEE.
4. No safes, machinery, equipment, heavy merchandise or anything
liable to injure or destroy any part of the building shall be
taken into it without the consent of the LESSOR in writing, and
the LESSOR shall in all cases retain the power to limit the weight
and indicate the place where such safe or the like is to stand and
the cost of repairing any and all damage done to the building by
taking in or putting out such safe or the like or during the time
it is in or on the premises, shall be paid for on demand by the
Lessee who so causes it. No Lessee shall load for any floor beyond
its reasonable weight carrying capacity as set forth in the
municipal or other codes applicable to the building.
5. Nothing shall be thrown by the Lessees, their clerks or servants
out of the windows or doors or down the passages of the building.
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
30
6. No animals except such as are cargo in transit shall be kept in or
about the premises.
7. If the LESSEE desires telegraph or telephone, call bell or other
private signal connections, the LESSOR reserves the right to
direct the electricians or other workmen as to where and how the
wires are to be introduced, and without such directions no boring
or cutting for wires shall take place. No other wires of any kind
shall be introduced without the written consent of the LESSOR.
8. Lessees and their employees shall not make or commit any improper
noise in the building or in any way interfere with or annoy other
Lessees or those having business with them. The LESSOR'S decision
as to what constitutes improper noise, interference or annoyance
shall be final and binding on the parties.
9. All Lessees must observe strict care not to allow their windows to
remain open so as to admit rain or snow, or so as to interfere
with the heating, air conditioning or ventilation of the
buildings. The Lessees neglecting this rule will be responsible
for any injury caused to the property of other Lessees or to the
property of the LESSOR of such carelessness. The LESSEE, when
closing offices for business, day or evening, shall close all
windows and lock all doors.
10. The LESSEE agrees not to place any additional locks upon any doors
of the DEMISED PREMISES and not to permit any duplicate keys to be
made thereof; but to use only additional keys obtained form the
LESSOR, at the expense of the LESSEE, and to surrender to the
LESSOR on the termination of the Lease all keys of the said
premises.
Initials: ______/______/__________
Lessor/Lessee/Indemnifer
31
LEASE AMENDMENT AGREEMENT
DATED MARCH , 2000
BETWEEN: AEROPORTS DE MONTREAL, a corporation duly incorporated under
the laws of Canada, having its head office at 1100
Rene-Levesque Boulevard West, Suite 2100, Montreal, Quebec,
H3B 4X8, herein acting and represented by __________________
its __________________ and ___________________ its_________,
duly authorized pursuant to Article 25 of the General
By-Laws of the corporation adopted on the 30/th/ day of
November 1989 a certified copy whereof remaining annexed to
this agreement,
(hereinafter called the "Lessor")
AND: ICON OF CANADA INC., a corporation duly incorporated under
the laws of Quebec, having its head office at ______________
________________, herein acting and represented by _________
__________ its _____________________ and ___________________
_______ its _________________, duly authorized pursuant to a
resolution of its Board of Directors adopted on ____________
a certified copy whereof remaining annexed to this
agreement,
(hereinafter called the "Lessee")
THE PARITES HAVE DECLARED AS FOLLOWS:
WHEREAS, AEROTERM DE MONTREAL (hereinafter "Aeroterm") entered into a
lease agreement with the Lessee executed under private signature on
March 1st, 1997, with respect to the Premises (as defined under the
Original Lease) located in Building "A" at the Montreal International
Airport - Mirabel (the "Original Lease");
WHEREAS, Aeroterm has surrendered Building "A" and assigned all its
rights, title and interest in the Original Lease to the Lessor as
assignee pursuant to a Deed of Amendment of the Head Lease (as defined
under the Original Lease) executed before Mr. Kevin Leonard, Notary on
December 21, 1998 with effect as of September 15, 1997;
WHEREAS the Lessor is, in consequence to the above, the owner of
Building "A" and the Lessor under the Original Lease;
THE PARTIES HEREBY AGREE AS FOLLOWS:
Initials: ______/______/___________
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32
ARTICLE 1
GENERAL
1.1 In this Lease Amendment Agreement, unless hereinafter modified or
unless there is something in the subject matter or context
inconsistent with the Original Lease, expressions, phrases and
words used herein shall have the same meaning as corresponding
expressions, phrases and words defined in the Original Lease.
1.2 Except as otherwise provided for hereinafter, all terms and
conditions of the Original Lease remain unmodified, the parties
hereby ratifying and confirming the provisions of the Original
Lease.
1.3 The parties hereto agree that the recitals herein above and
Schedule "B-1" attached hereto shall form part of this Lease
Amendment Agreement.
ARTICLE 2
AMENDMENTS
The Original Lease is hereby amended effective June 30th, 2000, as
follows:
2.1 Recitals
The second recital of Article 1 of the Original Lease is hereby
deleted.
2.2 Definition of the Word "Building"
The Original Lease is hereby amended:
. by inserting the first line of the first paragraph of
Article 2.1 after the words "Building "A"" the words
"located at the Montreal International Airport - Mirabel
(herein defined as the "Building")"; and
. by replacing the last portion of the first paragraph
reading:
"approximately two hundred and three thousand (203,000)
square feet of warehouse space as outlined in red and
including approximately three thousand five hundred (3,500)
square feet of office space on two levels as outlined in
blue ("Premises") the whole as shown on Schedule "B"
attached hereto"
Initials: ______/______/___________
Lessor/Lessee/Indemnifier
33
by the following:
"two hundred three thousand eight hundred sixty-six square
feet (203,866 sq. ft.) of warehouse space as outlined in
blue (which includes one thousand two hundred two square
feet (1,202 sq. ft.) of office space on the second level as
outlined in red) and an additional area of one thousand four
hundred forty-two square feet (1,442 sq. ft.) of office
space on the second level also outlined in red (all these
areas herein collectively referred to as the "Premises") the
whole as shown on Schedule "B-1" attached hereto."
Consequently, the word "Building" used in the Original Lease
and in this Lease Amended Agreement shall only refer to
Building "A".
2.3 Term
The Original Lease is hereby amended by extending the Term for an
additional period of three (3) years ending on June 30th, 2003.
2.4 Minimum Rent
Beginning July 1st, 2000 and through June 30th, 2003 the Minimum
Rent payable by the Lessee shall be FIVE DOLLARS AND FIFTY CENTS
per square foot ($5.50/sq.ft.) of Rentable Area per annum being
an annual Minimum Rent of ONE MILLION ONE HUNDRED TWENTY-ONE
THOUSAND TWO HUNDRED SIXTY-THREE DOLLARS ($1,121,263.00) payable
in advance in equal consecutive monthly installments of
NINETY-THREE THOUSAND FOUR HUNDRED THIRTY-EIGHT DOLLARS AND
FIFTY-EIGHT CENTS ($93,438.58) on the 1st day of each calendar
month.
The Lessee shall not be required to pay any amount of Minimum
Rent to the Lessor during the Term for the additional office
space of 1,442 square feet.
2.5 Continuous Operations
The Original Lease is hereby amended by adding the following
Article 5.5:
Initials: ______/______/___________
Lessor/Lessee/Indemnifier
"5.5 The Lessee shall be open for business throughout the entire
Term. It shall conduct its business and provide the required
services continuously, actively and diligently, in the
entire surface of the Premises."
2.6 Re-Leasing of the Premises
The Original Lease is hereby amended by adding the following
Article 6.7:
"6.7 Subject to the Landlord Agreement to be entered between the
Lessor, the Lessee and General Electric Capital Corporation
with respect to the Premises, if the Lessor does not
exercise its option to resiliate the present Lease in
accordance with the present Article, it shall have the
option, without the need to send a further notice to the
Lessee and without effecting a resiliation, as mandatary of
the Lessee, to take possession of the Premises and all
property found therein and to sublease all or part of the
Premises, as well as the improvements, furniture and
accessories found therein, under such terms and conditions
as the Lessor shall deem appropriate. The Lessee hereby
provides an irrevocable mandate to the Lessor to carry out
the foregoing. In such case, the Lessee shall continue to be
liable for the performance of all its obligations hereunder,
including the payment of the Minimum Rent and Additional
Rent and other amounts payable pursuant hereto. The Lessor
shall be entitled to apply all the obligations of the Lessee
to the new sublessee and to collect and receive the Minimum
Rent and additional Rent and all other amounts payable by
the sublessee, and apply them to any amount owing to the
Lessor by the Lessee from time to time. Any shortfall shall
be paid by the Lessee to the Lessor upon demand by the
latter.
2.7 Relocation
The Original Lease is hereby amended by deleting Article 21.
2.8 Notices
The Original Lease is hereby amended by deleting the name and
address of Aeroterm de Montreal inc. and replacing same by the
following:
CORPORATE SECRETARY
Initials: ______/______/___________
Lessor/Lessee/Indemnifier
35
AEROPORTS DE MONTREAL
1100 Rene-Levesque Boulevard West
Suite 2100 Montreal,
Quebec H3B 4X8"
Fax: (514) 394-7356
2.9 Option to Expand
The Original Lease is hereby amended by deleting Article 29.
2.10 Schedule "B"
The Original Lease is hereby amended by deleting Schedule "B" and
replacing same by Schedule "B-1" attached hereto.
ARTICLE 3
ACKNOWLEDGMENTS
3.1 Rental Credits
The Lessee acknowledges to have received all rental credits
mentioned in Article 4.2.1A of the Original Lease, whereof quit.
3.2 Lessor's Work
The Lessee hereby acknowledges that the Lessor has completed to
Lessee's satisfaction the Lessor's work described in Article 28.1
of the Original Lease, whereof quit.
ARTICLE 4
LANGUAGE
The parties declare that this Lease Amendment Agreement has been
prepared in English Language at their request. Les parties
declarent que le present contrat a ete redige en langue anglaise
a leur demand.
GUARANTEE
Initials: ______/______/___________
Lessor/Lessee/Indemnifier
36
To these presents intervenes, ICON HEALTH & FITNESS INC., a
corporation duly constituted under the laws of Delaware, having
its head office at _______________ U.S.A., hereby represented by
_______________, its _______________, being duly authorized in
virtue of a resolution of its Board of Directors adopted on
_______________ (hereinafter the "Indemnifier") which
acknowledges to have taken cognizance of the terms and conditions
of this Lease Amendment Agreement and hereby:
1. Unconditionally guaranties to the Lessor the prompt and
complete performance by the Lessee of each and every
obligation, duty and responsibility provided for in the
Original Lease as amended by this Lease Amendment Agreement
as if the Indemnified was a party to the Original Lease and
the Lease Amendment Agreement in the place and stead of the
Lessee and further agrees that it is solidarily bound with
the Lessee for the performance of said obligation, duty and
responsibility;
2. Agrees that upon an Event of Default under the Original
Lease as amended by this Lease Amendment Agreement, the
Lessor may proceed against the Indemnifier as if it was the
Lessee without waiving any of its rights against the Lessee
and without any requirement that the Lessor shall first have
proceeded against the Lessee or had recourse to or exhausted
any of its remedies against the Lessee or any security,
guarantee or other indemnity or convenant or any other
recourse or remedy of the Lessor in respect of such default
by the Lessee;
3. Agrees the obligations of the Indemnifier hereunder shall
not be released, discharged or affected by the bankruptcy or
insolvency of the Lessee or any disclaimer by any trustee in
bankruptcy of the Lessee or by the Lessee ceasing to exist
(whether by winding-up, forfeiture, cancellation or
surrender of the charter, or any under circumstance) or by
any event terminating the Original Lease as amended by this
Lease Amendment Agreement;
4. Agrees and declares that the Lessor and the Lessee have the
right to change, alter and vary the Original Lease as
amended by this Lease Amendment and/or the terms or
conditions thereof and that the Lessor may in its discretion
at any time grant any extension of time on any liability of
the Lessee to the Lessor without notice to the Indemnifier;
Initials: ______/______/___________
Lessor/Lessee/Indemnifier
37
5. Agrees and declares that the Indemnifier shall not be
discharged or released from any liability hereunder nor
shall such liability be in any way affected by such
security, or extension of time as aforesaid, or by any
dealing or forbearance which may take place between the
Lessor and the Lessee;
6. Agrees that this guarantee is irrevocable and cannot be
withdrawn or terminated by the Indemnifier for any reason
and shall survive and continue to bind the Indemnifier
notwithstanding the earlier termination of the Original
Leases amended by this Lease Amendment Agreement.
7. Agrees that this guarantee is not attached to the fact that
the Indemnifier is the parent company of the Lessee;
8. Agrees that this guarantee shall be binding upon the
Indemnifier and its successors and assigns and shall inure
to the benefit of the lessor and its successors and assigns;
9. Agrees that any notice, request or acceptance which may be
required to permitted to be delivered or served upon the
Indemnifier shall be sufficiently given to or served upon it
if in writing and delivered by fax, registered mail or
messenger at the following address:
ICON HEALTH & FITNESS INC.
1500 S. 1000 W.
Logan, Utah
USA 84321
Attention:________________
10. Declares that the Indemnifier has caused all necessary
corporate action to be taken by the directors of the
Indemnifier to authorize the execution and delivery of the
present guarantee to the Lessor;
11. Agrees that this guarantee shall be interpreted in
accordance with the laws of the Province of Quebec.
IN WITNESS WHEREOF, Lessor, Lessee and Indemnifier have duly
executed and signed these presents.
Initials: ______/______/___________
Lessor/Lessee/Indemnifier
38
AEROPORTS DE MONTREAL
____________________________ per:_________________________________
Witness (print name)
____________________________ per:_________________________________
Witness (print name)
ICON OF CANADA INC.
per: /s/ ILLEGIBLE
____________________________ ---------------------------------
Witness (print name) President
____________________________
Witness (print name)
ICON HEALTH & FITNESS INC.
per: /s/ ILLEGIBLE
____________________________ ---------------------------------
Witness (print name)
____________________________
Witness (print name)
Initials: ______/______/___________
Lessor/Lessee/Indemnifier