EXHIBIT 10.9
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MEMORANDUM OF AGREEMENT OF LEASE ENTERED INTO AT THE CITY AND DISTRICT OF
MONTREAL IN THE PROVINCE OF QUEBEC ON THE ______ DAY OF _____________, 19 ____
(hereinafter referred to as the "Lease")
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BY AND BETWEEN: CITE DE L'ILE DEVELOPMENT INC., a body
politic and corporate, duly incorporated
according to law and having its head
office in the City of Montreal, Province
of Quebec, herein acting and represented
by Douglas Pascal, its President, duly
authorized (hereinafter referred to as
the "Landlord")
AND: NUANCE COMMUNICATIONS LIMITED, a body
politic and corporate, duly incorporated
according to law and having its head
office in the City of Halifax, Province
of Nova Scotia, herein acting and
represented by Araham Smith its Vice
President and CFO duly authorised
(hereinafter referred to as the
"Tenant")
OFFICE LEASE
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INDEX
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Section I. DEFINITIONS 2
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Section II. LEASE 7
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Section III. TERMINATION 7
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Section IV. RENT 7
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Section V. RENTALS 7
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Section VI. REAL ESTATE TAXES, TAX ON CAPITAL AND OPERATING
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EXPENSES 8
Section VII. USE OF PREMISES 10
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Section VIII. UTILITIES AND ADDITIONAL CHARGES 10
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Section IX. SERVICES 11
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Section X. THERE IS NO SECTION X IN THIS LEASE 12
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Section XI. ASSIGNMENT AND SUBLETTING 12
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Section XII. READINESS FOR OCCUPATION 15
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Section XIII. TENANT CARE 15
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Section XIV. ALTERATIONS, ADDITIONS, IMPROVEMENTS AND
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REPAIRS 15
Section XV. MAJOR REPAIRS 17
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Section XVI. ACCESS TO PREMISES 18
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Section XVII. PROTECTION OF EQUIPMENT 18
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Section XVIII. COMPLIANCE WITH LAWS AND INDEMNIFICATION 18
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Section XIX. SECURITY DEPOSIT 20
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Section XX. FIRE AND DESTRUCTION OF PREMISES 20
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Section XXI. NON-RESPONSIBILITY OF LANDLORD 21
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Section XXII. INSURANCE 21
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Section XXIII. DEFAULT 23
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Section XXIV. MODIFICATION 25
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Section XXV. ADDITIONAL PROVISIONS 26
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Section XXVI. RULES AND REGULATIONS 28
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Section XXVII. MORTGAGES AND SUBORDINATION 29
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Section XXVIII. SCHEDULES 30
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Section XXIX. ENGLISH LANGUAGE 30
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THIS AGREEMENT WITNESSETH:
SECTION I. DEFINITIONS
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1.01 As used herein, the following expressions shall have the following
meanings:
(a) BASE OPERATING EXPENSES: Operating Expenses incurred for the fiscal
year ended April 30, 1999.
(b) BASE REAL ESTATE TAXES: Real Estate Taxes levied for the calendar
year 1999.
(c) BASE TAX ON CAPITAL: Tax on Capital imposed for the fiscal year
ended April 30, 1999.
(d) BUILDING: the building(s), structure(s) and improvements constructed
on the Land, including Landlord's equipment, systems and fixtures
therein.
(e) BUSINESS DAYS: Mondays to Fridays inclusive, legal and statutory
holidays excepted.
(f) BUSINESS HOURS: 8:00 A.M. to 6:00 P.M. during Business Days or such
other times as may be designated by Landlord from time to time.
(g) COMMENCEMENT DATE: January 1, 2000.
(h) ELECTRICAL AMOUNT: the difference, if any, between nine thousand
seven hundred ninety-six dollars and fifty cents ($9,796.50) per
annum increased in the same ratio as increases in Hydro Quebec rates
(and applicable taxes) occur subsequent to the 1 st day of October,
1999 and nine thousand seven hundred ninety-six dollars and fifty
cents ($9,796.50) per annum.
(i) LAND: that certain emplacement more fully described in SCHEDULE "A".
(j) LEASE YEAR: in respect of the first Lease Year, the period of time
commencing on the Commencement Date and expiring on the last day of
the month of December next following; thereafter, each Lease Year
shall consist of consecutive periods of twelve (12) calendar months.
However, the last Lease Year shall terminate upon the expiration of
the Term or earlier termination of this Lease, as the case may be.
Landlord may in its discretion change the Lease Year from time to
time provided that such change will not increase Tenant's liability
for any amounts payable pursuant to this Lease.
(k) NOTICES: for the purpose of all notices to the Landlord, the
Landlord's address is:
2000 Peel Street, Suite 900,
Montreal, Quebec H3A 2W5
Attention: The President
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With a copy to:
2000 Peel Street, Suite 900
Montreal, Quebec H3A 2W5
Attention: General Counsel
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for the purpose of all notices to the Tenant, the Tenant's address is
at the address of the Premises.
Notwithstanding the foregoing, either of the parties may notify the
other of a change of address in which event all official notices shall
thereafter be sent to the last address of which notice is given. All
notices required or permitted to be given by either Landlord or Tenant
to the other shall be in writing and sent by registered mail (postage
prepaid and return receipt requested) or delivered by bailiff. Delays
shall be computed or measured, as the case may be, from the date of
actual delivery of any notice referred to herein.
(l) OPERATING EXPENSES: all costs, charges and expenses incurred by the
Landlord, without duplication, in connection with the operation,
maintenance and repair of the Land and Building and by way of example
only but without limiting the generality of the foregoing, shall
include the following: heating, ventilating and air-conditioning
costs, maintenance, repairs and replacements; management or
administration fees and expenses (which fees shall be equal to five
percent (5%) of the gross revenue derived by Landlord from the Land
and Building); salaries, wages, medical, surgical, general welfare
benefits (including group life insurance and pension payments),
payroll taxes, workmen's compensation insurance contributions and
unemployment insurance contributions for the employees of the Landlord
(including the Building manager but excluding all executive personnel
of the Landlord to the extent not specifically responsible for the
administration of the Land and Building) engaged in the operation,
administration, maintenance and repair of the Land and Building;
security personnel and systems; electricity (except as charged
separately to tenants), fuel, water (including sewer rental) and other
utilities, taxes (excluding, to avoid duplication, Real Estate Taxes
and Tax on Capital), licenses and fees; insurance costs, premiums and
deductible payments in respect of fire, casualty, liability, property
damage, boiler, loss of rental and such other form or forms of
insurance relating to the Land and Building from time to time in
effect; cleaning, supervision, maintenance, operation and repair
costs, expenses and charges relating to the Land and Building
(including, without limitation, the elevators, the garage and parking
facilities, and other common areas and facilities) and the equipment,
systems and fixtures therein and the making of all necessary repairs,
modifications, renovations or replacements therein and thereto;
building and cleaning supplies; equipment rental; depreciation of
machinery, equipment, facilities and systems which by their nature
require periodic replacement (to be amortised as required in the
immediately following sentence of this paragraph 1.01(l)); cleaning of
windows and exterior curtain walls; cleaning and maintenance of
grounds (including snow removal), gardening and landscaping; garbage
and waste collection and disposal; amounts payable pursuant to service
contracts with independent contractors for maintenance, elevators,
cleaning, refuse removal, security operations and repairs;
expenditures relating to
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energy conservation measures or programs; legal and accounting fees
and expenses incurred with respect to the operation of the Land and
Building.
Without limiting the generality of the foregoing, Operating Expenses
includes all capital expenditures relating to the foregoing which in
accordance with generally accepted accounting principles, shall be
amortised on a straight-line basis over the useful life of the
expenditure in question, it being understood that only the amortised
portion plus interest on the unamortised portion of the capital
expenditure, at the lending rate actually charged or chargeable to
Landlord from time to time by its lenders, will be included in
Operating Expenses for each year.
Operating Expenses shall not include:
i) costs or expenses attributable to defects in the original design
or construction of the Building or of remedying construction
inadequacies;
ii) emphyteutic or other rent payable by Landlord under any
emphyteutic lease or other lease of the Building and the Land;
iii) costs of advertising in respect of the Building;
iv) charges for special services rendered or special materials
furnished to other tenants of the Building in excess of those
generally rendered or furnished to such tenants in general;
v) costs and expenses incurred to alter the Building for the
special benefit of particular tenants as opposed to the benefit
of the tenants of the Building in general and costs and expenses
of installing partitions or other improvements for the premises
of particular tenants;
vi) any amount paid by Landlord as a fine or penalty as a result of
a breach of law by Landlord with respect to the Building or the
Land (provided such breach was not caused by or contributed to
by Tenant) or in satisfaction of any judgment or pursuant to any
out of court settlement;
vii) the cost of any renovations, improvements or betterments to the
original structure of the Building which are optional to
Landlord;
viii) any depreciation of the Building or on any original equipment or
fixtures thereof;
ix) costs incurred to enforce the leases of tenants including
Tenant;
x) costs of obtaining any particular products or services in excess
of what they would have been had the supplier thereof dealt with
Landlord at arm's length;
xi) the amount of any sales tax, goods and services tax, value added
tax or other similar tax paid or payable by Landlord for the
purchase of goods and services included in Operating
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Expenses which may be available to and claimed by Landlord as a
credit in determining Landlord's net tax liability;
xii) amounts payable by Landlord on account of financing or
refinancing of the Building and Land, including payments of
principal and interest in respect of such financing;
xiii) any cost or expense incurred in connection with the leasing of
space in the Building to any particular tenant, including
brokers fees, commissions, legal fees and expenses, marketing
costs, costs of remodelling space, any tenant inducements,
rent-free periods and other leasing incentives, the cost of
lease take-overs, the cost of market studies and any other fees
and expenses of a similar nature;
xiv) any reserve for bad debt or other loss of rentals;
xv) the cost of acquisition of sculptures, paintings or other works
of art; and
xvi) under reserve of Tenant's obligation to pay its contributions
to Tax on Capital as defined in paragraph 1.01(t), Landlord's
capital gains taxes, corporate income taxes, and profits or
excess profits taxes.
There shall be deducted from Operating Expenses the following items which
would be included therein were it not for the inclusion of this sentence in
this paragraph 1.01(I):
xvii) amounts recovered from tenants of the Building for which they
are responsible as a result of any act, omission, default or
negligence on their part;
xviii) amounts recovered as insurance proceeds or which would have
been recovered as such by Landlord had it not failed to comply
with its insurance obligations;
xix) recoveries by Landlord under warranties or guarantees relating
to the construction of the Building; and
xx) revenues paid to Landlord in consideration of the use of the
common areas and facilities contemplated in Clause 24.03, to
the extent that such revenues do not exceed the aggregate of
the costs, charges and expenses incurred by Landlord in
connection with such common areas and facilities.
(m) PREMISES: those certain Premises substantially as shown outlined in
red on the floor plan(s) hereto attached as SCHEDULE "B" situated on
the second floor of the Building and having a rentable area deemed,
for all intents and purposes, to be nine thousand three hundred thirty
(9,330) square feet.
(n) PROPORTIONATE SHARE: the fraction, expressed as a percentage, whose
numerator is the deemed rentable area of the Premises referred to in
paragraph 1.01(m) and whose denominator is the rentable area of the
Building, excluding the parking and storage areas. The parties declare
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that they are satisfied as to such denominator and accordingly deem
the Proportionate Share to be nine and sixty-seven one hundredths
percent (9.67%), for all intents and purposes.
(o) REAL ESTATE BROKER: David Boyd, representing Devencore Ltd.
(p) REAL ESTATE TAXES: all taxes, surtaxes, non-residential taxes,
charges, rates and assessments, general or special, or any other
taxes, rates, assessments, levies and impositions which are now or
which may ever be levied against the Land, Building or the revenues
therefrom for municipal, urban community, school, public betterment,
general, local improvement or other purposes. If the system of
taxation now in effect is altered and any new tax or levy is imposed
or levied upon the Land and Building and/or the owner thereof and/or
the revenues therefrom in substitution for or in addition to all taxes
presently levied or imposed upon immovable, the expression "Real
Estate Taxes" shall include such new tax or levy. If the competent
authorities shall at any time eliminate any tax, rate, assessment or
imposition which compose part of the Real Estate Taxes, Landlord shall
eliminate same from the definition of Real Estate Taxes. To avoid any
doubt, under reserve of Tenant's obligation to pay its contributions
to Tax on Capital as defined in paragraph 1.01(t), Real Estate Taxes
do not include Landlord's capital gains taxes, corporate income taxes,
or profits or excess profits taxes.
(q) RENT:
i) from the Commencement Date until June 30, 2000, an annual rental
of one hundred sixty-seven thousand nine hundred forty dollars
($167,940.00);
ii) from July 1, 2000 until June 30, 2001 an annual rental of one
hundred seventy-two thousand six hundred five dollars
($172,605.00).
(r) SCHEDULES: the following Schedules are attached hereto: "A" -Land
Description, "B" - Premises Description, "D" Rules and Regulations,
"E" - Minimum Standards for Tenant Finishes, "F"- Special Conditions.
(s) SECURITY DEPOSIT: twenty-eight thousand three hundred seventy-eight
dollars and seventy-five cents ($28,378.75).
(t) TAX ON CAPITAL: the aggregate of the portions imputed by Landlord to
the Building and Land of all taxes and excises wholly or partly based
upon or computed as a function of the capital employed in respect of
the Building and Land levied or imposed from time to time upon
whomsoever, calculated as if the party or parties employing the
capital resulting in the levying or imposition thereof had no other
property than the Building and Land, whether characterised as a tax on
capital, a large corporations tax, an income tax or otherwise.
(u) TERM: the period commencing on the Commencement Date and terminating
on the Termination Date.
(v) TERMINATION DATE: June 30, 2001
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SECTION II. LEASE
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2.01 Landlord does hereby lease the Premises to the Tenant for the Term.
2.02 Save only for Landlord's work, if any, referred to in Section 14.01 hereof,
Tenant accepts the Premises "as is-where is" and in their present state and
condition.
SECTION III. TERMINATION
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3.01 Subject to paragraph 1 of Schedule F to this Lease, this Lease shall
terminate without notice or demand therefor being necessary on the
Termination Date. Should the Tenant remain in occupation of the Premises
after the expiration of the Lease without having executed a new written
lease with the Landlord, such holding over shall not constitute a renewal
or extension of this Lease. In such event, the Landlord may, at its option,
elect to treat the Tenant as one who has not removed at the end of the Term
and the Landlord shall be entitled to all remedies against the Tenant
provided by law in that situation, or the Landlord may elect, at its
option, to construe such holding over as a tenancy from month to month
subject to all the terms and conditions of this Lease save as to its
duration and save that the Rent payable pursuant to Section IV hereof shall
be two (2) times the Rent payable in the preceding year.
SECTION IV. RENT
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4.01 Tenant covenants and agrees to pay the Rent to the Landlord in equal,
consecutive, monthly instalments, in advance on the first day of each
calendar month. In the event the Term of the Lease begins on any day of the
month other than the first day, any Rent or other amount payable hereunder
for such month and for the last month of the Term shall be calculated on a
per diem basis and paid in advance.
4.02 The Rent shall be payable in lawful money of Canada to Landlord at its
offices in Montreal or at such other place or to such other person as may
be specified from time to time by Landlord without any demand therefor
being necessary, the whole without set-off, reduction, deduction,
diminution or compensation whatsoever.
SECTION V. RENTALS
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5.01 Tenant acknowledges that the Rent shall be absolutely net to the Landlord;
save only as herein expressly set forth, Landlord shall not be responsible
for any costs, charges, expenses or outlays of any nature or kind
whatsoever arising from or relating to the Premises, the contents thereof,
or the business carried on therein, and Tenant shall pay all such charges,
impositions, costs and expenses of every nature and kind (including such as
may be incurred by or paid for by Landlord on its behalf) to Landlord's
complete and entire exoneration as well as Tenant's Proportionate Share of
the amount by which Real Estate Taxes, Tax on Capital and Operating
Expenses for each Lease Year exceed the Base Real Estate Taxes, Base Tax on
Capital and Base Operating Expenses, as hereinafter set forth.
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5.02 Tenant shall not be responsible for the payment of Landlord's income taxes
(except for Tax on Capital to the extent herein mentioned) and Tenant
shall not be responsible for the payment of principal or interest due
under any hypothec or deed of trust affecting the Land and Building.
SECTION VI. REAL ESTATE TAXES, TAX ON CAPITAL AND OPERATING EXPENSES
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6.01 Throughout the Term, any renewal thereof and/or holding over thereunder,
the Tenant shall pay as additional rent, for each Lease Year, the Tenant's
Proportionate Share of the amount by which the Real Estate Taxes exceed
the Base Real Estate Taxes. The amount the Tenant is required to pay
pursuant to the foregoing shall be subject to per diem adjustments for any
Lease Year of less than twelve (12) full calendar months.
6.02 For each Lease Year, the Landlord shall invoice the Tenant for the
Tenant's Proportionate Share of the amount by which the Real Estate Taxes
exceed the Base Real Estate Taxes which the Tenant shall pay within thirty
(30) days of receipt or, should actual bills not yet have been received
for such Lease Year, the Landlord shall estimate the amount of the
Tenant's Proportionate Share of the amount by which Real Estate Taxes
exceed the Base Real Estate Taxes (Landlord reserving the right to revise
said estimate from time to time, Landlord acting reasonably) and shall
invoice the Tenant therefor in equal, consecutive instalments which the
Tenant shall pay to Landlord in advance on the first day of each calendar
month. In any event, when actual bills for all or any portion of the Real
Estate Taxes are received, the Landlord shall, within a reasonable delay
thereafter, furnish the Tenant with a statement setting forth such portion
thereof that is payable by the Tenant pursuant to this Section VI. If such
amount is greater or less than the payments on account thereof made by the
Tenant pursuant to this Section VI, appropriate adjustments shall be made
forthwith.
6.03 In addition to Tenant's obligation to pay Landlord's invoice for its
contributions to Real Estate Taxes when actual bills are received, Tenant
shall continue to make the aforementioned monthly instalments on account
of estimated future contributions to Real Estate Taxes on the same basis
or on the basis of Landlord's revised reasonable estimate thereof, as the
case may be, and so on from time to time.
6.04 Any reasonable expenses incurred by the Landlord in obtaining or
attempting to obtain a reduction of Real Estate Taxes shall be added to
and included in the computation of Real Estate Taxes. In the event that
the Tenant shall have paid its Proportionate Share of the amount by which
Real Estate Taxes exceed the Base Real Estate Taxes pursuant to this
Section VI and the Landlord shall thereafter receive a refund of any
portion of the amount so contributed by Tenant, the Landlord shall pay to
the Tenant its Proportionate Share of such refund. However, refunds of
Real Estate Taxes for vacant premises or resulting from reductions of such
taxes attributable to there being or having been vacant space in the
Building shall not be deducted from or otherwise reduce Real Estate Taxes
and the amounts of any credits (applicable against Real Estate Taxes or
other indebtedness) or reductions of such taxes for vacant premises
attributable to there being or having been vacant space in the Building
shall be included in Real Estate Taxes as if such credits or reductions
had not been granted, it being the intention of the parties
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that such refunds, credits and reductions shall be for the sole benefit
of the Landlord.
Should the taxation authorities at any time attribute any part of the
Real Estate Taxes to the Premises or the improvements therein, the
Landlord may, on the condition that insofar as the Tenant is concerned,
it treats the parts of the Real Estate Taxes so attributed to the
premises of other tenants in the Building on the same basis, cause the
Tenant to pay for same in addition to Tenant's Proportionate Share of
the amount by which the Real Estate Taxes (to be deducted from the said
Real Estate Taxes the part of the Real Estate Taxes so attributed as
well as the amount, if any, directly attributed by the taxation
authorities to other premises or tenant improvements in the Building)
exceed the Base Real Estate Taxes, the whole in the manner and subject
to the conditions hereinabove set forth. However, any attributions by
the taxation authorities of proportions of any Real Estate Taxes to
such premises for the purpose of determining the amounts of any refunds
or credits of any such taxes for vacant premises or the amounts of any
subsidies regarding any such taxes in favor of certain classes of
tenants, or for other similar purposes, (including, without limitation,
such attributions as are contained in the schedule contemplated in
Section 69 of the Loi sur la fiscalite municipale (R.S.Q., Chapter F-
2.1)) shall be deemed not to be attributions contemplated in the
immediately preceding sentence nor shall they affect Tenant's
obligations to pay Tenant's contributions to Real Estate Taxes.
6.05 Landlord shall have no obligation to contest, appeal, object to or
litigate the levying or imposition of Real Estate Taxes and/or any
valuation imposed with respect thereto and Landlord may settle,
compromise, consent to, waive or otherwise determine in its sole
discretion all matters and things relating thereto. Tenant shall not
itself contest, appeal, object to or litigate the levying or imposition
of Real Estate Taxes.
6.06 Throughout the Term, any renewal thereof and/or holding over
thereunder, the Tenant shall pay as additional rent the Tenant's
Proportionate Share of the amounts by which Operating Expenses and Tax
on Capital respectively exceed the Base Operating Expenses and the Base
Tax on Capital. The amount the Tenant is required to pay pursuant to
the foregoing shall be subject to per diem adjustments for any Lease
Year of less than twelve (12) full calendar months.
6.07 For each Lease Year, Landlord shall estimate the amounts of Operating
Expenses and Tax on Capital and shall invoice Tenant for Tenant's
Proportionate Share of the amounts by which such estimated amounts
respectively exceed the Base Operating Expenses and the Base Tax on
Capital, in equal consecutive monthly instalments which Tenant shall
pay to Landlord in advance on the first day of each calendar month. At
the end of each Lease Year, Landlord shall furnish Tenant with a
statement certified by an independent firm of chartered accountants
setting forth the actual Operating Expenses and Tax on Capital for such
year. If Tenant's contributions to Operating Expenses and Tax on
Capital for that Lease Year are greater or less than the payments
respectively made on account thereof made by Tenant pursuant hereto,
appropriate adjustments shall be made forthwith. Thereafter, Tenant
shall continue to make the aforementioned monthly instalments on
account of estimated contributions to Operating Expenses and Tax on
Capital for the ensuing Lease Year on the same basis or on the basis of
Landlord's revised reasonable estimate of same, as the case may be, and
so on from time to time.
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6.08 Notwithstanding anything hereinabove contained, if the Building is less
than fully occupied during any Lease Year, the Landlord shall be
entitled to allocate those portions of the Operating Expenses and Real
Estate Taxes which vary with the extent of the use and occupancy of the
Building (such as, but not limited to, heating, air-conditioning and
ventilating expenses, electricity, cleaning and cleaning supplies, real
estate surtaxes, management or administration fees and expenses) to the
rented space in the Building only and to reduce the Base Operating
Expenses and the Base Real Estate Taxes appropriately, such that the
Tenant shall pay a proportion of the amounts by which Operating
Expenses and Real Estate Taxes respectively exceed the reduced Base
Operating Expenses and the reduced Base Real Estate Taxes, such
proportion to be the ratio that the gross rentable area of the Premises
bears to the gross rentable area of all rented space in the Building,
excluding parking and storage areas. In no event, however, will Tenant
be obliged to pay an amount in virtue of the foregoing which is greater
than the amount the Tenant would have paid as its contributions to
Operating Expenses and Real Estate Taxes had the Building been fully
occupied.
6.09 Failure or delay on the part of the Landlord to avail itself of any of
the provisions of this Section VI shall not constitute any waiver or
renunciation of its rights provided herein.
6.10 Notwithstanding anything contained in this Section VI to the contrary,
Landlord reserves the right to allocate all or any part of the Real
Estate Taxes, Operating Expenses and Tax on Capital between Tenant and
other tenants of the Building in a manner different than that herein
contemplated should such allocation, in Landlord's reasonable
discretion, appear more equitable in the circumstances.
SECTION VII. USE OF PREMISES
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7.01 The Tenant shall use the Premises as general offices and for no other
purpose. Nothing herein shall be so interpreted as to imply that this
Lease is conditional upon the Tenant obtaining any permits or licenses
for the exploitation of such business from any municipal, provincial or
other authority.
SECTION VIII. UTILITIES AND ADDITIONAL CHARGES
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8.01 The Tenant shall pay as and when due all business, water and service
taxes and other similar rates and taxes which may be levied or imposed
upon the Premises or upon the business carried on therein by Tenant or
the other occupants of the Premises, and also all other rates and taxes
which are or may be payable by any of them. If the mode of collecting
such taxes be so altered as to make the Landlord and/or the proprietor
liable therefor instead of the Tenant, the Landlord will pay such
accounts and the Tenant will repay the Landlord as additional rent on
demand the amount so paid.
8.02 The Landlord (subject to its ability to obtain the same from its
principal supplier) will cause the Premises to be supplied with
electric current for the lighting and power required therein for the
operation of the Tenant's reasonable needs (excluding power required
for heating, ventilating and air-conditioning the Premises, the cost of
which forms part of Operating Expenses), which current the Tenant
hereby agrees to take and receive from the Landlord. For said electric
current, Tenant shall pay an additional annual
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rental equal to the Electrical Amount. Said annual rent shall be paid
in equal, consecutive, monthly instalments in advance. The obligations
of the Landlord hereunder shall be subject to any rules or regulations
to the contrary of the Quebec Hydro Electric Commission or any other
municipal or governmental authority. In the event any special lighting
(above Building standard) or equipment (including, but not limited to,
special heating, ventilating, air-conditioning systems, printing
presses, computers and the like) is installed in the Premises or
lighting is used beyond Business Hours or in any other event where
there is reason to believe that excess electricity is being consumed in
the Premises, the Landlord shall have the right to survey or meter (at
the Tenant's expense) the total electrical consumption and the Tenant
shall pay for any excess disclosed by said survey or metering by
appropriate increases in the aforementioned monthly instalments.
8.03 The Tenant shall pay as and when due all license fees, water rates,
sewer rates and other like fees, charges, rates and assessments that
may be levied, charged, rated or assessed against the Premises and/or
the equipment and facilities thereon or therein and/or any property on
the Premises owned or brought thereon by Tenant.
8.04 The Tenant shall pay for the cost of all other utilities consumed or
used within the Premises by Tenant or other occupants thereof, same to
include, without limitation, the cost of water, gas, steam, fuel or
other energy and Tenant shall pay for the cost of all fittings,
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 any such utilities.
8.05 Tenant will retain evidence of payment of any charges referred to in
this Section VIII which it pays directly to any public authority for
inspection by Landlord at Tenant's offices during normal business hours
upon reasonable prior notice, the whole for a period of two (2) years
following the due dates for payment of said charges.
SECTION IX. SERVICES
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9.01 Services
(a) BUSINESS HOURS: The Landlord shall keep the Building open during
Business Hours. The Landlord shall make reasonable provision to
allow Tenant access to the Premises at other times.
(b) CLEANING: The Landlord shall clean the Premises in accordance
with standards for comparable buildings at such time or times
outside Business Hours on Business Days as Landlord may, in its
sole discretion, determine. The Tenant shall leave the Premises
reasonably tidy for purposes of cleaning.
(c) HEATING: The Landlord shall heat the Premises during Business
Hours. The Landlord shall not be responsible for the failure of
heating equipment to perform its functions if such failure is due
to circumstances beyond the control of Landlord. The Tenant shall
be responsible for the failure of heating equipment performing
its function if such failure results from unapproved partitioning
within the Premises, unapproved changes or alterations thereto.
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(d) AIR-CONDITIONING: The Landlord shall provide reasonable air-
conditioning service during Business Hours. Any special
requirements or equipment above Building standards shall be at
the Tenant's sole cost and expense.
(e) ELEVATORS: The Landlord shall keep the passenger elevator(s) in
operation during Business Hours. Limited elevator access to the
Premises will be made available at all other times.
(f) LIGHTING: The Landlord shall supply Building standard lighting
fixtures as well as lamps, bulbs, tubes, starters and ballasts on
the Commencement Date. Lamps, bulbs, tubes, starters and ballasts
shall thereafter be replaced by Landlord at Tenant's cost,
Landlord reserving the right to relamp the entire Premises at
Tenant's cost when Landlord, acting reasonably, considers it cost
efficient or otherwise in accordance with sound property
management practice to do so.
(g) PUBLIC WASHROOMS AND FACILITIES: The Landlord shall furnish men's
and women's washroom facilities in the central service core on
each office floor. Said washrooms shall be supplied with soap,
paper supplies and other necessary materials. A chilled water
fountain will also be provided in the central service core on
each office floor.
9.02 Except as provided for in this Section IX, the cost of providing all of
the foregoing services shall form part of Operating Expenses save that
the provision of any services other than the services contemplated in
paragraphs 9.01(b), (e), (f) and (g), if provided outside Business
Hours (to the extent same can be made available upon reasonable prior
notice to Landlord), shall be at the Tenant's sole cost and expense.
The cost of supplies to washrooms contained within the Premises other
than in the central service core shall be for Tenant's account.
SECTION X. THERE IS NO SECTION X IN THIS LEASE
- ------- - -----------------------------------
SECTION XI. ASSIGNMENT AND SUBLETTING
- ------- -- -------------------------
11.01 The Tenant shall not assign this Lease or sublet the Premises or any
part thereof or allow the Premises or any part thereof to be used by
another without the prior written consent of the Landlord, which
consent shall not be withheld without a serious reason. The Landlord's
refusal of consent shall be deemed to have been for a serious reason
(without in any way restricting the Landlord's right to refuse its
consent on other serious grounds) where the assignee or subtenant
proposed by the Tenant is then a tenant of the Building and the
Landlord has or will have during the next ensuing eighteen (18) months
suitable space for rent in the Building, where the nature of the
business to be conducted by the assignee or subtenant conflicts with
exclusive rights granted other tenants or occupants of the Building,
where the prospective assignee or subtenant is a consulate, embassy,
trade commission or other representative of a foreign government, where
the Premises are intended to be used as medical, dental, government or
quasi-government offices, where the proposed assignee or sub-tenant
does not intend to bona fide physically occupy and carry on business
from the Premises or when the proposed assignment or sublease is made
prior to the Tenant commencing to physically and bona fide occupy and
carry on
13
business from the Premises or where it is reasonably anticipated by the
Landlord that the number of persons visiting the Premises will
substantially increase as a result of the assignment or subletting.
Notwithstanding any contrary provision of this Lease, Tenant shall have
the right, upon prior written notice to Landlord but without the
requirement of obtaining Landlord's prior written consent, to either
assign this Lease or sublet the Premises or any part thereof to an
affiliate of Tenant in which event the same terms, covenants and
conditions as would have applied had Landlord's prior written consent
been required and been granted shall apply to and in respect thereof;
save and except that the Landlord's rights contained in Clause 11.02
shall not apply thereto.
11.02 As an alternative to such consent (and without being obliged or
affecting its other rights), the Landlord shall have the right:
(a) to sublease the Premises from the Tenant (or such part thereof as
Tenant seeks to sublet) under the same terms and conditions set
forth in the agreement with the assignee or subtenant except in
respect of rent which shall be the lesser of the Rent (or a
proportionate amount thereof in the event only a part of the
Premises is intended to be sublet) or the rental payable pursuant
to the assignment or sublease agreement, as the case may be; or
(b) to cancel the Lease for the Premises (or, as the case may be, for
that portion thereof that Tenant seeks to sublet)
the whole as, of and from the date Tenant wishes to assign this Lease
or sublet the Premises or permit their use by another. Landlord shall
exercise the rights herein granted by sending notice thereof to Tenant
within fifteen (15) days following receipt of the notice referred to in
Section 11.04 hereof. It is agreed and understood that in the event
Landlord elects to exercise the rights conferred to it in accordance
with subparagraphs (a) or (b) above in lieu of granting or refusing its
consent to the proposed assignment or sublet, Tenant acknowledges and
accepts that Landlord need not justify its election upon serious or
other grounds. It is expressly agreed and understood that the rights so
conferred to Landlord have been freely given to Landlord by Tenant for
valid commercial reasons. However, if Landlord exercises its right to
cancel the Lease (as set forth in subparagraph (b) above), Tenant may
withdraw its request for consent to the assignment or sublet by written
notice to Landlord to be received no later than ten (10) days following
receipt of Landlord's notice of cancellation, in which case the Lease
will continue in full force and effect; if Tenant does not withdraw its
request within such ten (10) day period, then the Lease will terminate
as hereinabove provided.
11.03 Notwithstanding any assignment, transfer, subletting or permitted use
by another, the Tenant shall remain solidarily responsible with the
assignee, transferee, subtenant or user (and, in the circumstances
contemplated in Section 11.05 hereof, with the party who acquires
control), without benefit of division or discussion, for the payment of
the Rent and all additional rentals and for the performance of all
other obligations of the Tenant under this Lease. The Rent payable by
the Tenant shall be increased by an amount equal to the profit, if any,
derived by Tenant from the sublease, assignment or transfer. For all
purposes hereof, "profit" shall mean the rent, additional rent and
other amounts payable directly or indirectly by the subtenant,
transferee, assignee or user to or for the account of the Tenant in
excess of the Rent and additional rentals payable by Tenant hereunder
including but not limited to all
14
capital or other sums paid for improvements or otherwise. At Landlord's
sole option and upon written notice to Tenant and to the assignee,
transferee, subtenant or user, as the case may be, and without any
further formality, all rentals, sub-rentals and similar amounts payable
by an assignee, transferee, subtenant or user to Tenant shall be
irrevocably and unconditionally assigned to Landlord such that the
assignee, transferee, subtenant or user shall pay all such sums
directly to Landlord and the amounts so paid will be credited against
Tenant's monetary obligations under this Lease. In no event will this
assignment or any dealings with the assignee, transferee, subtenant or
user have the effect of releasing Tenant from any of its obligations
under this Lease. Furthermore, it is understood that if Landlord does
not collect any subrentals or other amounts from any assignee,
transferee, subtenant or user, Tenant will have no claim or defense
against Landlord in any manner whatsoever. If this Lease is repudiated,
disclaimed or terminated in connection with or as a result of the
bankruptcy or insolvency of the original Tenant or any assignee,
transferee or subtenant, the original Tenant and any assignee,
transferee or subtenant other than the bankrupt or insolvent person or
entity, upon notice from the Landlord given within sixty (60) days of
Landlord's knowledge of such repudiation, disclaimer, or termination,
will enter into a lease with the Landlord for a term expiring on the
date this Lease would have expired but for the repudiation, disclaimer
or termination and upon the terms and conditions which would have
applied during the remainder of the Term had this Lease not been
repudiated, disclaimed or terminated.
11.04 Tenant agrees to provide Landlord with at least thirty (30) days' prior
written notice of the name, address and nature of business of the
proposed assignee, transferee or sublessee, such credit references and
other information as Landlord may reasonably request and a copy of the
draft assignment, transfer or sublease agreement, the execution of
which will be conditional upon Tenant obtaining the Landlord's consent
as hereinabove provided. Landlord may, at its option and as a condition
of giving its consent to an assignment, transfer or subletting, require
that Tenant and the proposed assignee, transferee or sublessee sign a
form of assignment or sublet document (in form and content satisfactory
to Landlord). Tenant agrees to provide Landlord with a copy of the
assignment, transfer or sublease agreement executed by Tenant and the
proposed assignee, transferee or sublessee together with the signed
form of assignment or sublet document hereinafter referred to. Further,
all reasonable costs, charges and expenses incurred by Landlord in
respect of such assignment, transfer or sublet, including an
administrative fee, shall be payable as a condition of the giving of
Landlord's consent.
11.05 The Tenant will not advertise the Premises for the purpose of any
sublease, transfer or assignment without obtaining the prior written
approval of the Landlord to the proposed text, such approval not to be
unreasonably withheld. In no event will the rental rate appear in any
such advertisements. In no event will the Tenant be permitted to place
any signs in or upon the Premises advertising the availability of the
Premises (or any part thereof) for subleasing, assignment or transfer.
15
SECTION XII. READINESS FOR OCCUPATION
- ------- ---- ------------------------
12.01 The Landlord shall not be liable for damages in the event Landlord's
work, if any, in the Premises has not been completed by a particular
date, it being understood that this Lease shall remain in full force
and effect except that Rent and all other sums payable hereunder shall
be calculated as and from the date that the Landlord's work has been
substantially completed or would have been substantially completed had
the Tenant not delayed the Landlord in the completion of Landlord's
work.
SECTION XIII. TENANT CARE
- ------- ----- -----------
13.01 The Tenant shall maintain and keep the Premises, including all
replacements, alterations, additions and improvements thereto, in good
order and condition and shall, in accordance with the procedures set
forth in Section XIV hereof, perform or cause to be performed all
repairs (other than structural repairs of a non-recurring nature not
caused by Tenant's fault, negligence or breach of any obligation
hereunder or at law) which may from time to time be required therein or
thereto. Nothing contained in the immediately preceding sentence shall
oblige Tenant to repair or replace items which have suffered wear and
tear so long as such items continue to be in acceptable order and
condition. Without limiting the generality of the foregoing and
notwithstanding any legislation to the contrary, throughout the Term,
the Tenant will be required, at its expense, to do all work necessary
to retain the form and destination of the Premises as leased.
13.02 At the expiration or sooner termination of this Lease, Tenant shall
return the Premises to Landlord in the state and condition in which
they are to be maintained and repaired as herein provided.
13.03 The Tenant shall not bring into the Building any machinery, equipment,
article or thing that by reason of weight or size might cause damage
thereto and in no event shall Tenant overload the floors of the
Building.
13.04 In the event Tenant fails to comply with the obligation to maintain,
repair and replace imposed hereunder, the Landlord, after giving
written notice of five (5) days to the Tenant, shall have the right to
carry out such maintenance, repairs and replacements and any and all
costs incurred by the Landlord in so doing, together with a fee equal
to twenty percent (20%) of such costs, shall be payable by the Tenant
to Landlord as additional rental on demand. Notwithstanding the
foregoing, in the event any work or action is urgently required at
times when authorised representatives of Tenant cannot be located,
Landlord may proceed with such reasonable steps as in its discretion
are deemed by it to be necessary for the protection and preservation of
the Premises and Tenant shall reimburse Landlord for the amount
expended as additional rental on demand.
SECTION XIV. ALTERATIONS, ADDITIONS, IMPROVEMENTS AND REPAIRS
- ------- ---- ------------------------------------------------
14.01 Tenant accepts the Premises "as is-where is" in their state and
condition existing on the Commencement Date; save and except that
Landlord shall install, at its expense, a building-standard doorway
separating the Premises from the space adjacent to them. All
improvements, alterations and additions in and to and all repairs
required for the Premises other than the installation
16
mentioned in the immediately preceding sentence shall be the
responsibility of Tenant and shall be performed at Tenant's sole cost
and expense, the whole subject to the terms and conditions set forth in
this Section XIV.
All architectural plans and specifications setting forth Tenant's work
may be prepared by a designer and/or architect of the Tenant's choice
but shall be subject to Landlord's prior written approval as herein
mentioned. Said plans and specifications shall include, without
limitation, complete working drawings and specifications, floor plans,
interior elevations, interior finishing schedules, special facilities
or installations that affect the Premises and/or Tenant's perimeter
walls, mechanical, plumbing, sprinklers, telephone and electrical work
(including all fixtures, equipment and under floor services where
applicable) and static and dynamic loading of floors. The Tenant plans
and specifications shall be drawn to the same scale as the base
Building working drawings. Tenant shall be responsible to ensure that
the Tenant work, as designed, complies with all relevant laws, by-laws
and regulations as well as with the Building module and structure and
with the Building's mechanical, electrical, plumbing and other systems.
Complete working drawings, plans and specifications shall be submitted
to Landlord within twenty-one (21) days following execution of the
Lease or within such other delay as the Landlord and Tenant have
otherwise agreed. Within ten (10) days following receipt of the
complete working drawings, plans and specifications, Landlord shall
notify Tenant either of its approval thereof or of changes required and
if Landlord notifies Tenant that changes are required, Tenant shall,
within seven (7) days thereafter, submit the necessary amended
drawings, plans and specifications. Failure by Tenant to submit
complete working drawings, plans and specifications within the delays
herein contemplated shall be deemed to be a delay in the completion of
the Premises attributable to Tenant's fault.
14.02 All improvements, alterations, additions or repairs required or
requested by the Tenant may, at the option of Landlord, be carried out
by the Landlord or under the latter's coordination, in which event the
Tenant shall pay for the costs thereof as well as an amount equal to
five percent (5%) of such cost on account of Landlord's overhead and
administration and an amount of five percent (5%) of the aggregate of
the foregoing representing Landlord's coordination and profit. In
addition, the Tenant shall pay for the cost of all architectural,
engineering and/or working drawings prepared to comply with the
Tenant's requirements and for the cost of inputting such working
drawings in any Building computerised design records that may from time
to time be maintained as well as the foregoing fees calculated on the
cost thereof. Payment shall be effected by way of a cash deposit and
progress draws during the course of the work, the specifics of which
shall be established by the Landlord, acting reasonably, from time to
time.
14.03 Should the Landlord elect not to carry out improvements, alterations,
additions or repairs required or requested by the Tenant, the Tenant
shall not itself make any such improvements, alterations, additions or
repairs to the Premises without obtaining all necessary permits from
the appropriate public authorities and without the prior written
consent of the Landlord, pursuant to Section 14.01 hereof. The Tenant
shall be required to submit to the Landlord plans and specifications
(in accordance with the provisions of Section 14.01 hereof and within
the delays therein mentioned) for all such improvements, alterations,
additions or repairs and Tenant shall pay for the cost of inputting
such plans and specifications in any Building computerised design
records that may from time to time be maintained. All such work shall
be done by contractors approved by the Landlord, which approval shall
not be
17
unreasonably withheld. All such work shall be conditional upon such
contractors paying the cost of temporary services and coordination
during such construction, upon such contractors timing and performing
their work in accordance with such rules and regulations as the
Landlord may from time to time prescribe, upon such contractors
carrying property damage and liability insurance satisfactory to the
Landlord for its operations in the Building and upon the employees of
such contractors not causing any labour trouble by their presence in
the Building. Furthermore, the Tenant shall require that prior to
entering the Premises or performing any work therein, the Tenant's
contractors shall deliver to the Landlord a waiver and release from all
privileges or rights of privilege, all hypothecs or rights of hypothec
and/or other encumbrances that may then or thereafter exist, be
registered or published against any portion of the Land or Building for
work done, labour performed or materials furnished under any contract
and such contractors must agree to furnish to the Landlord a good and
sufficient waiver of privilege, hypothecs and/or other encumbrances for
every subcontractor and supplier furnishing labour and material under
the contract. The Tenant shall be responsible for any costs and
expenses of the Landlord occasioned directly or indirectly by such work
in the Premises. The cost of such improvements, alterations, additions
or repairs shall be the sole responsibility of the Tenant and if any
payment in respect thereof shall be made by the Landlord, the Landlord
hereby reserving the right to do so in its sole discretion, the same
shall be immediately payable by the Tenant on demand as additional
rent. Tenant shall furthermore pay to the Landlord as additional rent
on demand an amount equal to ten percent (10%) of the total cost of all
of such work representing Landlord's fee for administration and
coordination of same.
14.04 All improvements, alterations, additions or repairs to the Premises
(including all lighting installations such as, but not limited to,
spotlights and tracks, all floor finishes of whatsoever nature placed
upon the concrete floor of the Premises, all heating, air-conditioning
and ventilating equipment and systems, all panelling and all window
coverings, built-ins and the like) shall, upon their completion, become
a part of the Premises and the property of the Landlord and shall be
surrendered with the Premises upon termination of this Lease without
any compensation being due therefor; provided, however, that the
Landlord shall have the option, in its sole discretion, to require the
Tenant to remove at the Tenant's cost and under the Landlord's
coordination and direction, all or any of such improvements,
alterations, additions or repairs as may have been made by Tenant or by
Landlord at Tenant's request prior to or during the Term and to restore
the Premises or any part thereof to the condition they were in at the
Commencement Date, reasonable wear and tear only excepted. To avoid any
doubt, such option shall not apply in respect of improvements,
alterations, additions or repairs made to the Premises by any other
tenant.
SECTION XV. MAJOR REPAIRS
- ------- --- -------------
15.01 Should the Landlord effect improvements, alterations, additions or
repairs to the Premises or Building, the Tenant shall permit same to be
performed without being entitled to any indemnity or reduction in
rental or any damages or compensation therefor. All such work shall be
completed by the Landlord with reasonable dispatch and the cost thereof
shall be included in Operating Expenses unless such work is otherwise
Tenant's responsibility hereunder in which event Tenant shall pay for
the full cost thereof.
18
SECTION XVI. ACCESS TO PREMISES
- ------- --- ------------------
16.01 The Landlord, its agents and representatives may enter the Premises at
all reasonable times following reasonable prior notice thereof to
Tenant (and at any time and without notice being required during an
emergency) to examine their condition and to view their state of
repair, maintain, clean, re-lamp or otherwise and Tenant covenants to
repair according to notice.
16.02 The Tenant shall allow the Premises to be exhibited during normal
business hours to persons interested in acquiring the Land or Building
or advancing money upon the security thereof. During the last six (6)
months of the Term, Tenant shall also allow the Premises to be
exhibited to persons interested in leasing same.
SECTION XVII. PROTECTION OF EQUIPMENT
- ------- ----- -----------------------
17.01 The Tenant shall protect from damage and make all necessary repairs and
replacements to the heating, ventilating and air-conditioning
apparatus, water, gas and drain pipes, water closets, sinks and
accessories thereof in and about the Premises and keep same free from
all obstructions that might prevent their free working and shall give
to the Landlord prompt written notice of any accident to or defects in
same or any of their accessories. On the Commencement Date, Landlord
shall deliver the heating, ventilating and air-conditioning apparatus,
water, gas and drain pipes, water closets, sinks and accessories in or
serving the Premises in a good state of repair and in proper working
condition.
SECTION XVIII. COMPLIANCE WITH LAWS AND INDEMNIFICATION
- ------- ------ ----------------------------------------
18.01 The Tenant will not do or permit anything to be done in, upon or about
the Premises or bring or keep anything therein which will in any way
conflict with the regulations of the fire, police or health departments
or with the rules, regulations, by-laws, ordinances or laws of the
municipality in which the Land and Building are situate, the applicable
burban community (if any), or any governmental authority having
jurisdiction over the Premises or the business conducted therein, all
of which the Tenant undertakes to abide by and conform to.
The Tenant covenants and agrees that it will indemnify and hold
harmless the Landlord, its agents and contractors from and against any
penalty imposed for or damage arising from the breach of any such
rules, regulations, by-laws, ordinances or laws by the Tenant or those
for whom the Tenant is responsible. The Tenant shall not do anything
which would cause the Premises to be in breach of any environmental
legislation including, without limitation, the Environmental Quality
---------------------
Act.
---
18.02 The Tenant shall pay to the Landlord any extra premiums of insurance
that the company or companies insuring the Land and Building may exact
in consequence of the business carried on by the Tenant, of anything
brought into or stored in the Premises by the Tenant, or of the
Tenant's operations. The Tenant shall furthermore protect the Landlord
from claims made by other tenants in the Building in consequence of
their insurance rates being increased as a result of such causes.
19
The Tenant shall in no event bring into or store in the Premises
anything which may make any insurance carried by the Landlord subject
to cancellation.
18.03 The Tenant shall comply with the requirements of all insurance
companies having policies of any kind whatsoever in effect covering the
Land and Building. In no event shall any inflammable materials or
explosives (except to the extent required by Tenant to carry on its
business and then only as permitted by Landlord's and Tenant's
insurers) be taken into or maintained within the Premises.
18.04 The Tenant shall indemnify and hold harmless the Landlord from and
against all claims, liabilities or payments relating to the use and
occupancy of the Premises by Tenant or the other occupants thereof and,
without limiting the generality of the foregoing, Tenant does hereby
agree to indemnify and hold harmless the Landlord from and against all
claims, liabilities, damages, costs, suits or actions arising from:
(a) any accident, injury (including death) or damage whatsoever or
howsoever caused to any person or persons (including the Tenant,
its employees, agents and invitees, any subtenant or licensee of
the Tenant and all other persons claiming through or under any of
them) or to the property of any such person or persons occurring
during the Term, caused by want of repair to, or by the use or
occupation of the Premises;
(b) any breach, violation or non-performance of any covenant,
condition or agreement set forth in the present Lease on the part
of Tenant to be fulfilled, kept, observed or performed;
(c) the conduct or management of or from any work or thing whatsoever
done, or not done, in or about the Premises by the Tenant, its
agents, employees or contractors, or arising from any act of
negligence by the Tenant or any of its agents, employees or
contractors; and
(d) the failure of the Tenant to fully, faithfully and punctually
comply with all of the legitimate requirements of any public or
quasi-public authority having jurisdiction over the Premises;
provided that Tenant shall not be obliged to indemnify and hold
harmless the Landlord for or against any claims, liabilities or
payments contemplated by this Clause 18.04 to the extent they arise
from Landlord's intentional or gross fault.
18.05 Notwithstanding any express or implicit obligation on the part of
Landlord to insure and further notwithstanding any obligation on the
part of Tenant to contribute to the payment of Landlord's premiums,
Tenant acknowledges that Tenant shall remain responsible for its
negligence and those of all persons for whom it is in law responsible,
that no insurable interest is conferred upon the Tenant under any of
Landlord's insurance policies and that Tenant shall have no right to
recover any proceeds thereunder or claim any right or title to such
proceeds.
20
SECTION XIX. SECURITY DEPOSIT
- ------- ---- ----------------
19.01 Forthwith upon execution of this Lease, the Tenant shall furnish the
Landlord with the Security Deposit, to be applied on account of the
instalments of Rent and Tenant's estimated contributions to Operating
Expenses, Real Estate Taxes and Tax on Capital attributable to the month
of January 2000 and on account of the instalments of Rent and Tenant's
estimated contributions to Operating Expenses, Real Estate Taxes and Tax
on Capital for the month of July, 2000.
SECTION XX. FIRE AND DESTRUCTION OF PREMISES
- ------- ------------------------------------
20.01 In the event the Building is destroyed or damaged by fire or other cause
and as a result thereof, the Premises will not be able to be used for the
purpose for which they have been leased by Tenant for at least thirty
(30) days following the date of the damage or destruction, Tenant shall
have the option to cancel this Lease by giving Landlord written notice to
such effect within such thirty (30) day delay. In the event that Tenant
exercises this right of cancellation, the Lease shall expire forthwith
and Tenant shall immediately surrender the Premises and all interest
therein to Landlord and shall pay rent only to the date of the damage or
destruction. If Tenant's right to cancel this Lease does not apply in
respect of the damage or destruction or if Tenant has failed to exercise
such right, Landlord shall, within ninety (90) days of the damage or
destruction, give notice to Tenant in writing whether or not Landlord
intends to restore or rebuild substantially the same nature and quality
structure (and this, whether or not the Premises are affected). If
Landlord's notice advises that Landlord has decided not to so restore or
rebuild, this Lease shall expire forthwith and Tenant shall immediately
surrender the Premises and all interest therein to Landlord. In all
events contemplated in this Clause 20.01, rent shall be diminished in
proportion to the extent to and the time during which the Premises cannot
be used for the purpose for which they have been leased by Tenant. In no
event shall Landlord be liable to Tenant for any loss or damage
occasioned by such damage or destruction or by any delays in substantial
completion of any repair or replacement contemplated by this Clause
20.01.
20.02 In the event Landlord elects to restore or rebuild as aforesaid, it is
expressly understood and agreed that the extent of Landlord's obligation
will be to rebuild or restore to substantially the condition in which the
Building and Premises were initially delivered to Tenant as modified to
be consistent with the plans, specifications and design criteria selected
by Landlord at the time of reconstruction. Nothing herein contained shall
be construed to oblige the Landlord to repair or reconstruct any
alterations, improvements or property of the Tenant. On the contrary, all
other improvements in and to the Premises shall be the responsibility of
Tenant who shall be obliged to repair and re-fixture to a standard at
least equivalent to that which existed prior to the date of damage and
destruction, the proceeds of insurance being carried by Tenant in respect
to its property and improvements to be held in trust jointly by Landlord
and Tenant for the purpose of said repair and replacement.
21
SECTION XXI. NON-RESPONSIBILITY OF LANDLORD
- ------- -----------------------------------
21.01 To the extent permitted by law, the Landlord shall not be liable for any
damage, loss, injury or destruction arising in or upon the Land, Building
or Premises to any property or person nor for any personal injuries
sustained by the Tenant, its officers, servants, employees, agents,
invitees or licensees which may result at any time from any reason or
cause whatsoever, the Tenant hereby covenanting to indemnify the Landlord
of and from all loss, costs, claims or demands in respect of such damage,
loss, injury or destruction. Without limiting the generality of the
foregoing, the Landlord shall not under any circumstances be liable for
any damage resulting from water, steam, rain or snow which may leak into,
issue or flow from the pipes or plumbing or sprinklers or from any other
part of the Building or from any other place or quarter. No event or
occurrence herein contemplated shall be deemed an eviction or disturbance
of the Tenant's enjoyment of the Premises nor render the Landlord liable
in damages to the Tenant nor entitle the Tenant to claim any diminution
in Rent or in any other amount payable hereunder.
21.02 The Landlord shall not be liable for failure to perform any of its
obligations hereunder nor be responsible for any damage resulting from
delays in the construction and/or finishing of the Premises and/or the
interruption or modification of any service or facility provided in the
Building caused or required by strikes, riots, labour controversies,
accidents, fault or delays caused by Tenant or third parties, fuel
shortages, Acts of God or of the Queen's enemies, fire or other casualty,
force majeure, cas fortuit, superior force or any other cause beyond the
--------------------------
Landlord's reasonable control, other than Landlord's financial condition,
and Landlord shall not be responsible for any acts or omissions of any
other tenants or occupants of the Building or other third parties. No
such occurrence or event shall be deemed an eviction or disturbance of
the Tenant's enjoyment of the Premises nor render the Landlord liable in
damages to the Tenant nor entitle the Tenant to claim any diminution in
Rent or other amounts payable hereunder, but in any such event the
Landlord shall without delay take all reasonable steps to remove the
cause of such interruption.
21.03 Without limiting the generality of the foregoing, the Landlord shall not
be liable for any damage of any kind or nature to the Premises or to any
goods, merchandise, stock-in-trade, assets, fixtures, furniture,
accessories or equipment belonging to the Tenant or to the Tenant's
officers, servants, employees, agents, invitees or licensees resulting
from robbery, burglary, theft or acts of violence of any kind, and the
Tenant will hold the Landlord free, clear and harmless from any liability
or loss resulting therefrom.
SECTION XXII. INSURANCE
- ------- ---------------
22.01 Throughout the Term and any renewal thereof, Tenant shall take out and
keep in force:
(a) comprehensive general liability insurance (including blanket
contractual liability coverage) with respect to the business
carried on in or from the Premises and the use and occupancy
thereof for bodily injury and death and damage to property of
others in an amount of at least five million dollars
($5,000,000.00) (indexed annually based upon percentage increases
in the Cost of Living Index - All Items - Canada as determined by
Statistics Canada or its successors) for each
22
occurrence or such greater amount as Landlord may from time to time
reasonably require;
(b) all-risks insurance including the perils of fire, extended
coverage, leakage from sprinkler and other fire protective devices,
earthquake, collapse and flood in respect to furniture, equipment,
inventory and stock-in-trade, fixtures, (plate glass if
appropriate) and leasehold improvements located within the Premises
and such other property located in or forming part of the Premises,
including all mechanical or electrical systems (or portions
thereof) installed by Tenant in the Premises, the whole for the
full replacement cost (without depreciation) in each such instance;
(c) business interruption insurance in an amount equal to at least one
(1) years' Rent, Tenant's Proportionate Share of Real Estate Taxes,
Operating Expenses and Tax on Capital, and the Electrical Amount or
such greater amount as Landlord may from time to time reasonably
require;
(d) tenants' legal liability insurance in an amount equal to the
replacement cost of the Premises or such greater amount as Landlord
may from time to time reasonably require; and
(e) such additional insurance as Landlord, acting reasonably, may from
time to time require.
22.02 All policies of insurance shall (i) be in form satisfactory to Landlord,
(ii) be placed with insurers acceptable to Landlord, (iii) provide that
they will not be cancelled or permitted to lapse unless the insurer
notifies Landlord in writing at least thirty (30) days prior to the date
of cancellation or lapse, and (iv) be primary and not excess or
contributing with any other insurance available to the Landlord or others
insured thereunder. Each such policy shall name Landlord and any other
party required by Landlord, including but not limited to its property
manager and hypothecary creditors, as an additional insured(s) as its (or
their) interest(s) may appear. Each liability policy will contain a
provision of cross-liability and severability of interests as between
Landlord and Tenant. All other policies referred to above shall contain a
waiver of subrogation rights which Tenant's insurers may have against
Landlord, Landlord's insurers and persons under Landlord's care and
control. Notwithstanding anything contained in this Lease to the
contrary, Tenant hereby releases and waives any and all claims against
Landlord and those for whom Landlord is in law responsible with respect
to occurrences which are or which are required to be insured against by
Tenant hereunder. Tenant shall from time to time furnish Landlord with
certified copies of all such insurance policies and the renewals thereof.
22.03 Should Tenant fail to take out or keep in force such insurance, Landlord
will have the right to do so and to pay the premiums therefor and in such
event Tenant shall repay to Landlord the amount paid as premiums as
additional rental on demand.
22.04 Landlord's property insurance policies shall contain a waiver of
subrogation rights which the insurers under such policies may have
against Tenant, Tenant's insurers and persons under Tenant's care and
control.
23
SECTION XXIII. DEFAULT
- ------- ------ -------
23.01 In any of the events following, namely:
(a) if the Tenant shall fail to pay the Landlord any instalment of Rent
or any additional rent after it shall have become due and payable
as herein provided and such instalment has not been paid in full
within five (5) days following Landlord's written notice to Tenant
of such failure to pay; provided, however, that Tenant shall no
longer be entitled to the benefit of any such notice of non-payment
in the event that it has failed on at least two (2) occasions in
any period of 365 consecutive days to pay any such instalment after
it shall have become due and payable as herein provided;
(b) if the Tenant shall be declared dissolved, bankrupt or wound-up or
shall make any general assignment for the benefit of its creditors
or take or attempt to take the benefit of any insolvency, winding-
up or bankruptcy legislation or if a petition in bankruptcy or in
winding-up or for reorganisation shall be filed by or granted
against the Tenant or if a receiver or trustee be appointed for or
enter into physical possession of the property of the Tenant, or
any part thereof;
(c) if the Tenant shall assign, sublet or permit the use of the
Premises by others except in a manner herein permitted;
(d) if any seizure is practised against the property of the Tenant in
the Premises;
(e) if the Tenant shall fail to take possession of the Premises or if
the Tenant should vacate or abandon the Premises;
(f) if any insurance carried by the Landlord be cancelled in
consequence of the business carried on by the Tenant or in
consequence of anything brought into or stored in the Premises by
the Tenant;
(g) if the Tenant shall default in the performance of any of its other
obligations under this Lease including, without limitation, the
obligation to pay business and water taxes in a timely manner, or
fail to effect any payment that may result in a charge, lien,
encumbrance or other right on the Land, Building or Premises or the
property located therein or shall violate any of the rules and
regulations hereinafter set forth or hereafter to be established by
the Landlord and such default continues for five (5) days following
receipt of written notice thereof;
this Lease may be resiliated ipso facto at the option of the Landlord
upon written notice to the Tenant to such effect, and this
notwithstanding any legislation to the contrary including without
limitation Article 1863 of the Civil Code of Quebec. It is expressly
agreed that such right of termination shall be in addition and without
prejudice to all other rights and recourses as provided by law or herein,
the Landlord may re-enter and re-let the Premises to whomsoever it may
choose without further notice or demand being necessary and may recover
from the Tenant all amounts due hereunder at the date of such
termination, expenses of such re-letting (including any inducements,
allowances, commissions, repairs, decorating, alterations or improvements
necessitated thereby) and rental for the six (6) months next succeeding
the date of such termination or such longer period as may be allowed by
law, all of which shall immediately become due and payable, the whole
without
24
diminishing or extinguishing the liability of any guarantor or
indemnifier of the obligations of Tenant under this Lease. As used
herein, the expression "rental" shall mean the Rent, Tenant's
Proportionate Share of Real Estate Taxes, Operating Expenses and Tax on
Capital, the Electrical Amount and all other additional rents payable
hereunder, without prejudice to such claims as Landlord may have from
time to time for loss of rental attributable to any subsequent period or
to any other claims, rights and recourses that Landlord may have in the
circumstances arising from time to time. Any sums received by the
Landlord from or for the account of the Tenant when the Tenant is in
default hereunder may be applied, at the Landlord's option, to the
satisfaction in whole or in part of any obligation of the Tenant then due
hereunder in such manner as the Landlord sees fit and regardless of any
imputation by law or any designation or instruction of the Tenant to the
contrary.
23.02 In the event of the bankruptcy, insolvency or winding-up of the Tenant,
there shall immediately become due and exigible in favour of the
Landlord, on account of the damages, costs and losses (including, without
limitation, loss of rentals and additional rentals) which may be suffered
by the Landlord as a consequence of the bankruptcy, insolvency or
winding-up of the Tenant, an amount equal to the amount of the Security
Deposit or the amount of the letter of credit, as the case may be. The
entitlement of the Landlord to the foregoing amount shall not be affected
or impaired by the bankruptcy, repudiation or disclaimer of this lease or
any other decision taken by any trustee, liquidator, receiver, referee or
any other person appointed under or pursuant to any agreement or by any
court or other body of competent jurisdiction under any bankruptcy,
insolvency, winding-up or other legislation in force from time to time.
The rights of the Landlord under this Section 23.02 are in addition to
and not in substitution for the rights of the Landlord under Section
23.01. In addition to the foregoing and without prejudice to the
Landlord's other rights and recourses hereunder, in the event of the
bankruptcy of the Tenant, there shall immediately become due and exigible
in favour of the Landlord, on account of accelerated rent, an amount
equal to rental and additional rental for a period of three (3) months
next following the bankruptcy or for such longer period of time as may be
allowed by any applicable bankruptcy or insolvency legislation in force
from time to time. Furthermore, in the event of Tenant's continued
occupancy of the Premises after the filing of a proposal or a notice of
intention to file a proposal pursuant to the provisions of the Bankruptcy
and Insolvency Act, S.C. 1992 C-27 and any amendments thereto or
replacements therefor and said continued occupancy commences on a day
which is not the first day of any calendar month, any Rent or other
amounts payable on a monthly basis hereunder for such month and for any
other partial month of the Term shall be calculated on a per diem basis
-- ----
and be paid in advance.
23.03 In the event of any default by Tenant under this Lease or in the
circumstances of Section 23.02 hereof applying, Landlord shall have the
right to immediately draw in full upon any letter of credit held as
security for the fulfilment of Tenant's obligations hereunder or for the
payment of any amounts that may be owing to the Landlord hereunder, and
to retain the amount so drawn as its absolute property or to apply the
same as a cash security deposit pursuant to the provisions of Section
19.01 hereof.
23.04 If Landlord retains the services of a lawyer to enforce the execution of
any of Tenant's obligations under the Lease or to retake possession of
the Premises and Landlord is successful in obtaining enforcement of such
execution or in such retaking of possession, Tenant shall pay to Landlord
on demand, in
25
addition to judicial costs otherwise payable by Tenant, all extra-
judicial or solicitor and client disbursements and legal fees (which may
be calculated on an hourly basis) incurred by Landlord for the foregoing
purpose. If Tenant retains the services of a lawyer to enforce the
execution of any of Landlord's obligations under the Lease and Tenant is
successful in obtaining enforcement of such execution, Landlord shall pay
to Tenant on demand, in addition to judicial costs otherwise payable by
Landlord, all extra-judicial or solicitor and client disbursements and
legal fees (which may be calculated on an hourly basis) incurred by
Tenant for the foregoing purpose.
SECTION XXIV. MODIFICATION
- ------- ----- ------------
24.01 Notwithstanding any provision of this Lease or any Schedule appended
hereto to the contrary, the Landlord reserves the right at any time and
from time to time to change, alter, modify or expand the Building as the
Landlord in its sole and entire discretion deems expedient, same to
include, without limitation, the right of the Landlord to add additional
floors to the Building, to expand the length or width of the Building,
and/or to change, alter and amend the location, dimensions or
specifications of the pipes, wires, ducts, conduits, utilities,
mechanical systems, common areas and other Building services (including
such as may be contained in the Premises) and the right to block light or
views. The Tenant waives and renounces to any and all claims as a
consequence of the foregoing providing the physical dimensions of the
Premises remain substantially as contemplated herein. No action on the
part of Landlord hereunder shall constitute an eviction hereunder or a
change in the form or destination of the Premises or any diminution of
the peaceable enjoyment by the Tenant. In the event any such change
results in additional land being utilised to service the Building, such
additional land shall be deemed included in the definition of "Land" for
all purposes. In the event any change contemplated herein results in a
change in the rentable area of the Building, the Tenant's Proportionate
Share shall be modified accordingly.
24.02 The Landlord reserves the right to construct other buildings, structures
or improvements on the Land and to make such alterations and/or
improvements to the Building and create such servitudes and other rights
as may be necessary or desirable in order to permit any new structure or
structures to be connected to the Building.
24.03 If Landlord has already established or elects or is obliged to establish
common areas or facilities, including without limitation, a conference
centre or a day care center, in the Building for the benefit and use of
the tenants and their employees, Tenant acknowledges that the rentable
area of the Premises shall at such time or times be deemed to include or
to be increased to include, as the case may be, Tenant's Proportionate
Share of the areas of such common areas or facilities for purposes of
calculating Rent, Tenant's contribution to Real Estate Taxes, Operating
Expenses and Tax on Capital, the Electrical Amount and other additional
rentals owing hereunder.
Tenant shall have the right of use of such common areas and facilities in
common with other tenants of the Building, such use to be governed by
such rules and regulations as may from time to time be established by
Landlord. Landlord reserves the right at any time to discontinue the
existence of any such common areas or facilities in which event the
rentable area of the Premises shall be deemed to be decreased to exclude
therefrom Tenant's Proportionate Share of the area thereof for purposes
of calculating Rent,
26
Tenant's contributions to Real Estate Taxes, Operating Expenses and Tax
on Capital, the Electrical Amount and other additional rentals owing
hereunder.
SECTION XXV. ADDITIONAL PROVISIONS
- ------- ---- ---------------------
25.01 Additional Provisions
(a) LANDLORD: In the event of any sale or lease of the Building, the
--------
Landlord shall be and hereby is entirely released and relieved from
all covenants and obligations of the Landlord hereunder, provided
such purchaser or lessee agrees to assume and carry out any and all
such covenants and obligations.
(b) AMENDMENT OF LEASE: No assent or consent to changes in or waiver of
------------------
any part of this Lease shall be deemed or taken as made unless the
same be done in writing and attached to or endorsed hereon by
Landlord and Tenant. No covenant or term of the present lease
stipulated in favour of the Landlord or Tenant shall be waived,
except by express written consent of the other, whose forbearance
or indulgence in any regard whatsoever shall not constitute a
waiver of the covenant, term or condition to be performed; and
until complete performance of the said covenant, term or condition,
the creditor thereof shall be entitled to invoke any remedies
available under this Lease or by law despite such forbearance or
indulgence.
(c) LATE PAYMENTS: The acceptance by the Landlord of any post-dated
-------------
cheque or money owing for Rent or additional rent after its due
date is to be considered as a mode of collection only, without
novation of, nor derogation from, any of Landlord's rights,
recourses and actions in virtue of this Lease which demands
punctual payment of all obligations.
All sums owing by Tenant under this Lease not paid when due shall
thereafter bear interest at a rate equivalent to five percent (5%)
per annum above the prime lending rate of The Toronto-Dominion Bank
from time to time in effect. Notwithstanding the foregoing, Real
Estate Taxes, Electrical Amount and any other utility charges or
taxes not paid when due pursuant to the Lease shall bear interest
at a rate equivalent to the greater of five percent (5%) per annum
above the prime lending rate of The Toronto-Dominion Bank from time
to time in effect and the interest on arrears charged by the
relevant public or taxing authorities.
(d) TENANT: All the covenants herein contained shall be deemed to have
------
been made by and with the heirs, executors, administrators and
permitted assigns or successors of each of the parties hereto, and
if more than one Tenant, the covenants herein contained on the part
of the Tenant shall be construed as being several as well as joint
and where necessary reference to the Tenant as being of the
masculine gender or in the singular number shall be construed as
being in the feminine or neuter gender or in the plural number.
(e) BROKERAGE COMMISSION: As part of the consideration for the granting
--------------------
of this Lease, the Tenant represents and warrants that no broker,
agent or other intermediary introduced the parties or negotiated or
was instrumental in negotiating or consummating this Lease other
than the
27
Real Estate Broker named in Section 1.01 hereof, whose commission
shall be paid by the Tenant.
(f) NOTICES AND DEMANDS: Subsequent to the Commencement Date, any
-------------------
notice or demand given by the Landlord to the Tenant shall be
deemed to be duly given when served upon or mailed to the Tenant at
the address of the Premises. The Tenant elects domicile at the
Premises for the purpose of service of all notices, writs of
summons or other legal documents in any suit at law, action or
proceeding which the Landlord may take under or in connection with
this Lease.
(g) PUBLICATION OF LEASE: The Tenant will not publish this Lease or any
--------------------
extract or summary thereof. Upon the Tenant's request, the Landlord
will execute with the Tenant for registration purposes only a short
form of this Lease in form and substance acceptable to Landlord but
which in any event shall not contain any of the financial
information (including, without limitation, the Rent) set out in
this Lease. Nothing in the short form of lease shall be construed
or interpreted so as to amend in any manner the provisions of this
Lease, the intention of the Landlord and the Tenant being that this
Lease shall govern for all purposes and that the short form of
lease is only to be filed for purposes of conservation and
consultation pursuant to Article 2985 of the Civil Code of Quebec.
The Tenant will radiate and discharge such publication at the
expiry or other termination of this Lease and in the event that it
fails to do so, Landlord may do so at Tenant's expense, and the
Tenant hereby appoints Landlord and any officer or employee of
Landlord (or, as the case may be, Landlord's managing agent for the
Building and any officer or employee of such agent) as its attorney
with the right and power to execute in the name of the Tenant any
such documents as will be required in order to effect such
radiation and discharge.
(h) ADDITIONAL RENT: In addition to Rent, all monies payable pursuant
---------------
to this Lease, as well as all sales, business transfer, goods and
services and value added taxes, rates and duties or similar taxes,
rates and duties which may at any time hereafter be imposed upon or
by reference to the Rent and other sums owing by Tenant hereunder,
shall be payable by Tenant to Landlord immediately when due without
reduction, deduction or compensation whatsoever and shall be
additional rent and collectible as such.
(i) PRIOR AGREEMENTS: The present Lease cancels and supersedes all
----------------
prior leases and agreements, written or otherwise, entered into by
the Landlord and the Tenant regarding the Premises leased
hereunder. This Lease and such rules and regulations as may be
adopted and promulgated by the Landlord from time to time
constitute the entire agreement between the parties.
(j) RIGHTS CUMULATIVE: No right or remedy herein conferred upon or
-----------------
reserved to the Landlord is intended to be exclusive of any other
right or remedy herein or by law provided, but such rights shall be
cumulative and in addition to every other right or remedy herein or
by law provided.
(k) PERFORMANCE BY THE LANDLORD: If the Tenant fails to pay any sum to
---------------------------
any third party or perform any other obligation under this Lease,
the Landlord may, without notice or mise en demeure to any person,
pay the said sum or perform the said obligation in the place and
stead of the Tenant who shall be thereupon obliged to repay the
said sum and/or reimburse any costs incurred by the Landlord in
performing such obligation, together with a fee equal to twenty
percent (20%) of the amount paid or the costs incurred, as the case
may be, the whole without prejudice to any other rights or
recourses of the Landlord which may accrue in the circumstances.
(l) RENUNCIATION: Tenant hereby renounces to any rights which it may
------------
have or acquire under the Constitut or Tenure System Act, 1977
------------------------------
S.R.Q. Chapter C-64.
(m) SEVERABILITY: If any clause or provision (or any part of any clause
------------
or provision) herein contained shall be adjudged invalid, the same
shall not affect the validity of any other clause or provision of
this Lease (or as the case may be, the remainder of any clause or
provision in which it is found), or constitute any other cause of
action in favour of either party against the other.
(n) GOVERNING LAW: This agreement shall be construed and interpreted in
-------------
accordance with the laws of the Province of Quebec.
(o) CAPTIONS: This captions appearing in this Lease have been inserted
--------
as a matter of convenience and for reference only and in no way
define, limit or enlarge the scope or meaning of this Lease or any
provision thereof.
(p) TIME OF THE ESSENCE: Landlord and Tenant hereby acknowledge that
-------------------
time is of the essence with respect to all delays and dates
mentioned in the Lease.
(q) FREELY NEGOTIATED: The Tenant acknowledges that it has had the
-----------------
opportunity to consult with legal counsel in connection with the
negotiation and execution of this Lease and Tenant further
acknowledges that all provisions of this Lease have been freely and
fully discussed and negotiated and that this Lease does not
constitute a contract of adhesion.
SECTION XXVI. RULES AND REGULATIONS
- ------- ----- ---------------------
26.01 The rules and regulations respecting the Land and Building which are more
fully set forth in Schedule "D" hereto shall, during the Term, be
observed and performed by the Tenant, its officers, servants, employees,
agents, invitees and licensees, and the Landlord shall have the right to
make reasonable alterations and additions to such rules and regulations
and to make such other and further reasonable rules and regulations as in
its judgment may from time to time be required for the safety, care and
cleanliness of the Land and Building including the Premises, and for the
preservation of good order therein, and the same shall be observed and
performed by the Tenant, its officers, servants, employees, agents,
invitees and licensees. The Landlord may waive any one or more of these
rules and regulations for the benefit of any particular tenant or
tenants, but no such waiver by the Landlord shall be construed as a
waiver of the rules and regulations in favour of any other
29
tenant or tenants nor prevent the Landlord from thereafter enforcing
any rules and regulations against all or any of the tenants in the
Building. Furthermore, the Landlord, acting reasonably, may apply the
rules and regulations in a different manner having regard to the
different nature of businesses carried on by the tenants, within the
Building. The Landlord agrees to notify the Tenant in writing of any
changes in the rules and regulations.
SECTION XXVII. MORTGAGES AND SUBORDINATION
- ------- ------ ---------------------------
27.01 This Lease and all rights of Tenant hereunder shall be subject and
subordinate at all times to any and all underlying leases, mortgages,
hypothecs, deeds of trust or other security interests affecting the
Building and/or the Land which have been executed or which may at any
time hereafter be executed, and any and all extensions and renewals
thereof and substitutions therefor. Tenant agrees to execute any
instrument or instruments which Landlord may deem necessary or desirable
to evidence the subordination of this Lease or to cede priority of its
registration to any or all such underlying leases, mortgages, hypothecs,
deeds of trust or other security interests.
27.02 Tenant covenants and agrees that if by reason of default by Landlord as
lessee under any underlying lease in the performance of any of the terms
or provisions of such underlying lease or by reason of a default under
any mortgage, hypothec, deed of trust or other security interest to which
this Lease is subject or subordinate and Landlord's title is terminated,
it will attorn to the lessor under such underlying lease or the acquirer
of the Building pursuant to any action taken under any such mortgage,
hypothec, deed of trust or other security interest and Tenant will
recognise such lessor or such acquirer as Tenant's lessor under this
Lease.
27.03 Tenant waives the provisions of any statute or rule of law now or
hereafter in effect which may give or purport to give the Tenant any
right of election to terminate this Lease or to surrender possession of
the Premises in the event any such proceeding to terminate the underlying
lease is brought by the lessor under any such underlying lease or any
such action is taken under any such mortgage, hypothec, deed of trust or
other security interest and agrees that this Lease shall not be affected
in any way whatsoever by any such proceedings.
27.04 Tenant agrees to execute and deliver, at any time and from time to time
upon the request of Landlord or of the lessor under any such underlying
lease, or of the holder of any such mortgage, hypothec, deed of trust or
other security interest, any instrument which may be necessary or
appropriate to evidence such attornment. Tenant shall execute and deliver
such instrument (or instruments) within ten (10) Business Days after
being requested to do so and failing which Landlord may do so on Tenant's
behalf.
27.05 Tenant will upon request of Landlord furnish to the lessor under any
underlying lease and/or to each creditor under a mortgage, hypothec, deed
of trust or other security interest and/or to an actual or prospective
purchaser, or emphyteutic lessee of Landlord's rights in and to the Land
and/or Building and/or underlying lease a written statement that this
Lease is in full force and effect and that the Landlord has complied with
all its obligations under this Lease (or state those with which it has
not complied) and any other
30
reasonable written statement, document or estoppel certificate requested
by any such lessor, creditor, purchaser or lessee.
SECTION XXVIII. SCHEDULES
- ------- ------- ---------
28.01 The Schedules are included in and form an integral part of this Lease.
SECTION XXIX. ENGLISH LANGUAGE
- ------- ----- ----------------
The parties have requested that this agreement of lease be prepared in the
English language. Les parties ont demande que la presente convention de bail
soit redigee en anglais.
IN WITNESS WHEREOF, the parties have signed these presents at the place first
hereinabove mentioned.
CITE DE L'ILE DEVELOPMENTS INC.
(Landlord)
___________________________________ Per:
Witness
___________________________________
Witness
NUANCE COMMUNICATIONS LIMITED
(Tenant)
/s/ Signature Illegible Per: /s/ Signature Illegible
- ----------------------------------- -----------------------------
Witness REBECCA DURDAN OKAHAM SMITH
/s/ Signature Illegible
- -----------------------------------
Witness Toula Vertin
___________________________________ Per: _____________________________
Witness
___________________________________
Witness
SCHEDULE "A"
The original lot number five thousand eight hundred and ninety one (5,891) on
the official cadastre of the Montreal paroisse, registration division of
Montreal; having an area of six thousand one hundred and ninety nine point 6
square meters (6,199.6m 2). With the building and or improvements erected
thereon. (lot 5891 herein described is defined for these purposes to be "Phase
I").
Schedule "B"
[CHART OMITTED]
Schedule "D"
RULES AND REGULATIONS
1. The Tenant shall follow such instructions, if any, as Tenant may from
time to time receive from Landlord relating to the maintenance and care
of the heating, ventilating and air-conditioning equipment contained
within the Premises.
2. The Tenant shall not permit the introduction of any machine or
electrical or mechanical device of a nature to occasion objectionable
noise or vibration or be injurious to the Premises or Building or to
any of the occupants thereof.
3. The Tenant shall not without the written consent of the Landlord use
any electric current except that supplied from the general system
installed in the Building, and the Landlord shall not be responsible in
damages by reason of any failure of such current. If the Landlord
grants the Tenant permission to introduce any special electric power,
telegraphic or telephone connection, the Landlord reserves the right to
direct where and how wires are to be introduced, and without such
direction no boring or cutting shall be permitted. No radio or
television serials shall be installed by Tenant within the Building or
Premises.
4. The Tenant shall keep the Premises in a good state of preservation and
shall not suffer any accumulation of useless property or rubbish
therein. No animals shall be kept in or about the Premises.
5. Any breakage of glass in the Premises shall be charged to the Tenant
unless caused by the Landlords or those for whom the landlord is
representing
6. The Tenant, its employees, clerks or servants, shall not use the
Premises for the purpose of lodging rooms, or for any immoral or
unlawful purpose, and shall not make or permit any improper noises in
the Building or obstruct or interfere in any way with other tenants or
those having business with them, and shall not throw anything out of
the windows or doors or down through the passages or skylights of the
Building.
7. The workmen of the Landlord must be employed by the Tenant at the
Tenant's expense for painting, lettering, interior moving and other
similar work that may be done in the Premises.
8. The Tenant shall not mark, paint, drill into or in any way deface the
walls, ceilings, partitions, floors, wood, stone or iron work, or any
other appurtenance to the Premises.
9. The skylights and/or windows that reflect or admit light into any place
in the Building shall not be covered or obstructed by the Tenant.
10. The sidewalks, entries, passages, halls, elevators and stairways shall
be under the exclusive control of the Landlord and shall not be
obstructed by the Tenant, or used by it for any other purpose than the
ingress and egress to and from its respective offices or places of
business.
11. Furniture, accessories and equipment, as well as bulky articles and
construction materials which the Tenant may require from time to time,
shall be carried to the Premises at such hour and in such manner as the
Landlord may designate, the whole subject to arrangements for adequate
security and supervision, at the cost of Tenant, having been previously
made. The Tenant agrees to pay the Landlord for the use of elevators
and other Building services used in respect to the foregoing in
accordance with the Landlord's prevailing rates from time to time in
effect. Any damages which may be caused to the Building in the carrying
of furniture, bulky articles or construction materials to or from the
Premises shall be the sole responsibility of the Tenant.
12. The Tenant shall not employ any person or persons other than the
janitor staff of the Landlord for the purpose of cleaning and taking
charge of the Premises and for such purposes the janitor of the
Landlord shall be provided with a pass-key and shall be allowed
admission into the Premises.
13. Should a directory board be provided by Landlord in the Building, said
board will be installed in a conspicuous place and its capacity will be
such that it may contain the numbers of rooms and names of the tenants,
however, it shall not include other than the firm name of the Tenant,
same to be provided at the Tenant's cost.
14. The Landlord shall not be responsible for any damage to the furniture,
effects, goods or equipment of the Tenant while being transported or
moved to and from the Premises or in the elevators, corridors, basement
or other premises of the Landlord.
Page 2
15. If any sign, advertisement or notice shall be inscribed, painted or
affixed by the Tenant on any part of the Premises or Building without
the prior written consent of the Landlord, the Landlord shall be at
liberty to forthwith remove same at Tenant's expense. Interior signs on
doors will be inscribed, painted or affixed for the Tenant by the
Landlord at the expense of the Tenant and shall be of a size, color and
style acceptable to the Landlord.
16. The Tenant shall not place any additional locks upon any doors of the
Premises without written permission and shall not permit any duplicate
keys to be made therefor, but shall use only additional keys obtained
from the Landlord at the expense of the Tenant. The Tenant shall
surrender to the Landlord at the termination of this Lease all keys to
the Premises and the Building.
17. The Tenant shall not perform any acts which may injure the Premises or
be a nuisance to other tenants of the Building and shall forthwith upon
the request of the Landlord discontinue all acts or practices in
violation of this regulation and repair any damage or injury to the
Premises caused thereby.
18. The Landlord reserves the right to inspect all freight to be brought
into the Building and to exclude from the Building all freight which
violates any of these rules and regulations or the Lease of which these
rules and regulations are a part.
19. The Landlord shall have the right to prohibit any advertising by the
Tenant which, in its opinion, tends to impair the reputation or
character of the Building and upon written notice from the Landlord,
the Tenant shall refrain from or discontinue such advertising.
20. Canvassing, soliciting and peddling in the Building is prohibited and
the Tenant shall co-operate to prevent the same.
21. The Tenant shall have no right to advertise by using the words
"LIQUIDATION SALE", "AUCTION SALE", "FORCED TO VACATE", "GIVING UP
LEASE", or "GIVING UP BUSINESS", or make use of terms and phrases
denoting same or having similar meaning. The Landlord may remove such
signs or advertising without any recourse in damages against the
Landlord which the Tenant herein expressly waives.
22. The Tenant shall not install window shades, venetian blinds, curtains
or drapes of any kind or description without the Landlord's prior
written approval.
23. The Tenant shall not lay linoleum, rubber, cork or other floor
coverings, without Landlord's prior written approval. If Landlord
grants Tenant permission to lay such linoleum, rubber, cork or other
floor coverings, same shall not come in direct contact with the floor
and an interlining of builder's deadening felt shall be first affixed
to the floor by a paste or other adhesive which may be readily removed
with water.
24. If any apparatus used or installed by the Tenant requires a permit as a
condition for installation, the Tenant must file a true copy of such
permit with the Landlord.
25. All persons entering and leaving the Building between the hours of 6:00
p.m. and 8:00 a.m. on Business Days and all persons entering and
leaving the Building on Saturdays, Sundays, and holidays shall register
in the books kept by the Landlord at or near the entrance. Between the
hours of 6:00 p.m. and 8:00 a.m. on Business Days and on Saturdays,
Sundays, and holidays, the Landlord will have the right to prevent any
person from entering or leaving the Building unless provided with a key
to the Premises to which such person seeks entrance, or a pass issued
and signed by the Tenant upon the letterhead of the Tenant and
countersigned by the Landlord. Any persons found in the Building at
such time without such keys or passes will be subject to the
surveillance of the employees and agents of the Landlord.
26. The Tenant undertakes to abide by and participate in any fire drills or
other similar manoeuvres called or arranged by the municipality, fire
department, or the Landlord for the security and protection of the
Building and the tenants thereof.
27. The Landlord shall have the exclusive right to supply and sell or to
cause to be supplied and sold all coffee, soft drinks, cigarettes,
sandwiches and confections and to install or cause to be installed all
vending machines, provided that the Tenant shall have the right to
prohibit all such sales and installations in the Premises by giving
notice in writing to that effect to the Landlord.
28. The Tenant shall not place any debris, garbage, trash or refuse or
permit the same to be placed or left in or upon any part of the
Building outside of the Premises except areas, if any,
Page 3
designated by Landlord from time to time for such purposes. If
the Tenant is using perishable articles or generates wet
garbage, the Tenant shall provide suitable storage facilities
approved by the Landlord in writing. Wet garbage shall at no
time be mixed with normal, dry, office waste.
29. The Tenant shall not permit or allow any odours, vapours, steam, water,
vibrations, noises or other undesirable effects to emanate from the
Premises or any equipment or installation therein which, in the
Landlord's opinion, are objectionable or cause any interference with
the safety, comfort or convenience of other tenants and occupants of
the Building by the Tenant or the occupants and tenants thereof or
their agents, servants, invitees or employees.
30. The Tenant undertakes to install and maintain at its cost fire
extinguishers and such other fire protection equipment and fire-warning
devices required or recommended by the Landlord's insurers or any
governmental authority having jurisdiction over the Premises or the
business conducted therein.
31. The Tenant, its employees and agents, shall not smoke in any or all of
the common areas and facilities of the Building which the Landlord may,
from time to time, designate to be non-smoking area.
32. In the event that in accordance with the terms and conditions of the
Lease, exterior parking facilities are provided to Tenant, unless
stipulated expressly to the contrary in the Lease, the Landlord
reserves the right to at any time and from time to time designate the
area or areas within which the Tenant must park and prohibit the Tenant
from parking in any areas other than those so designated.
Schedule "E"
MINIMUM BUILDING STANDARDS FOR TENANT FINISHES
The tenant acknowledges that the Tenant's finishings of the premises will
conform to the following (minimum) standards:
1. PARTITIONING: Floor to underside of suspended ceiling, 1/2" drywall,
------------
each side of 2-1/2" steel studs complete with sound insulation. All
drywall surfaces are to be taped, sanded, and painted to the Tenant's
choice of colours. Ceiling baffles, as required, to be of similar
construction to partition. Note that where partition meets exterior
wall, removable section of induction unit cabinets must remain free and
removable and insulation must be placed within said unit in same plane
as partition. As well, building standard lead lined, filler panel to be
installed above induction unit between window mullion (no piercing
fasteners) and partition, as well as continuing partition in same plane
above sloped perimeter ceiling band where ceiling baffles are required.
2. DOORS, FRAMES & HARDWARE: The building standard interior doors will be
------------------------
3'0" (three feet, zero inches) 8'6" (eight feet, six inches) high,
mahogany stained oak veneer solid core doors and solid mahogany stained
oak frames 4-3/4" x 1-3/4") building standard stain and lacquer finish
with Sargent building standard heavy duty lock and passage sets and
(minimum) 1-1/2 pairs of 4-1/2" x 4" brushed stainless steel hinges.
Glass sidelights if requested, to be framed as per door frames using 4"
base. Tenant entrance door to be building standard solid mahogany
stained oak or glass doors.
3. ELECTRICAL TELEPHONE OUTLETS: Standard duplex wall-mounted electrical
----------------------------
receptacles and telephone outlets and/or standard floor monuments, all
to be fed from the underfloor electrical/telephone/data raceway system
or ceilings (provided that in an organized conduit ceiling
distribution).
4. FLOORING: All floors to be finished in either building standard 4th
--------
generation, thirty-five (35) oz. nylon carpet, or 12" x 12" plain vinyl
or vinyl composite tiles.
5. BASES: Serged carpet base in carpet areas, vinyl or rubber cove base in
-----
vinyl or vinyl composite tiled areas.
6. LIGHTING: Building standard 18 2/3" x 56" air handling recessed
--------
fluorescent fixture with two warm white tubes. Note that all building
standard lighting is wired using Electroconnect modular wiring.
7. TENANT IDENTIFICATION ON SUB-DIVIDED FLOORS: To be consistent with
-------------------------------------------
building standard tenant identification signage.
8. SPRINKLERS: Sprinkler layouts must conform to City of Montreal
----------
requirements and those of Factory Mutual and heads must be semi-
recessed chrome, except in elevator lobby where the heads are recessed
(Royal Flush).
9. AIR CONDITIONING AND VENTILATION: Normal office air conditioning to be
--------------------------------
handled via air troffers integrated with air handling light fixture
using non-supply fixtures for return air. Special air handling
diffusers, if air quantities dictate, to be reviewed by Landlord.
10. ELEVATOR LOBBY FINISHES - FULL FLOOR OCCUPANCY: Full floor tenants
-------------------------------------------------
shall have the right to select hard finishes in the elevator lobby for
floors, walls and elevator doors that is in conformity with the overall
design of the premises for the entire floor. It is understood that
reconstituted marble or reconstituted granite is not an acceptable
finish. It is understood that the ceiling to be installed in the
elevator
lobby shall conform to the building standard vaulted design constructed
of one layer of 1/2" drywall taped, sanded and painted with lighting
provided by three centered building standard halogen hanging lights.
THE LANDLORD RESERVES THE RIGHT TO MAKE CHANGES AT HIS DISCRETION WITHOUT
NOTICE.
SCHEDULE F
----------
SPECIAL CONDITIONS
------------------
1. OPTION TO CANCEL
Provided Tenant is not in default in the performance of its obligations
under this Lease, Tenant has one option to cancel this Lease effective on
October 31, 2000. This option to cancel may only be exercised by written notice
received by Landlord not later than June 30, 2000. If not exercised in such
manner and within such delay, this option cancel shall be deemed conclusively to
have been waived and to be null and void and never to have existed.
IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THIS SCHEDULE F ON THE DATE
FIRST MENTIONED IN THE LEASE OF WHICH THIS SCHEDULE F FORMS A PART.
CITE DE L'ILE DEVELOPMENT INC.
______________________________ Per: ______________________________
(Witness) ("Landlord")
- ------------------------------
(Witness)
NUANCE COMMUNICATIONS LIMITED
/s/ Signature Illegible Per: /s/ Signature Illegible
- ------------------------------ ------------------------------
Witness REBECCA JORDAN GRAHAM SMITH
/s/ Signature Illegible
- ------------------------------
Witness Toula Vertin
______________________________ Per: ________________________
Witness ("Tenant")
______________________________Witness