LEASE AGREEMENT
BETWEEN
AMENAGEMENTS ROVO INC.
AND
PHOENIX INTERNATIONAL LIFE SCIENCES INC.
COMMERCIAL LEASE
TABLE OF CONTENTS
ARTICLE TITLE PAGE
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PARTIES 1
PREAMBLE 1
I DEFINITIONS, INTENT AND INTERPRETATION 3
1.1 Definitions 3
1.2 Intent 4
1.3 Duty to act reasonably 5
II LEASE 5
2.1 Lease of Premises 5
2.2 Defects 5
III TERM 5
3.1 Term 5
IV RENT 5
4.1 Rental 5
4.2 Late Payment Charges 6
V OPERATING EXPENSES 6
5.1 Operating Expenses 6
5.2 Initial Amount of Operating Expenses 6
VI TAXES 7
6.1 Tax Contestation 7
6.2 Business and Other Taxes of the Tenant 7
6.3 Taxes 7
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6.4 Sales and Services Tax 8
6.5 Surtax 9
VII UTILITIES AND HEATING, VENTILATION,
AIR-CONDITIONING 9
7.1 Heating, Utilities - Additional Rent 9
7.2 Overloading of Utility Facilities 9
7.3 Heating, Ventilation and Air-Conditioning 9
7.4 Failure of Tenant to Comply 9
VIII USE OF LEASED PREMISES 10
8.1 Use of Premises 10
8.2 Compliance with Laws 10
8.3 Remedies of Landlord 10
IX MAINTENANCE, REPAIRS AND ALTERATIONS 10
9.1 Improvements to Leased Premises 10
9.2 Conditions of Premises 11
9.3 Maintenance and Repairs by Tenant 12
9.4 Approval of Tenant's Repairs 12
9.5 Special Repairs 13
9.6 Maintenance by the Landlord 13
9.7 Landlord's Right of Maintenance 13
9.8 Right of Inspection 13
9.9 Loss of Enjoyment 14
9.10 Overloading of Floors 14
9.11 Discharge of Hypothecs 14
9.12 Signs, Awnings and Canopies 14
9.13 Surrender of Premises 14
9.14 Tenant's Obligation to Protect 15
X INSURANCE AND INDEMNITY 15
10.1 Tenant's Insurance 15
10.2 Terms and Conditions of Tenant's Insurance 15
10.3 Increase in Landlord's Insurance Premiums 16
10.4 Cancellation of Insurance 17
10.5 Loss or Damage 17
10.6 Indemnification of Landlord 18
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XI DAMAGE AND DESTRUCTION AND
EXPROPRIATION 18
11.1 Destruction of Leased Premises 18
11.2 Lease in Force 19
11.3 Rebuilding 19
11.4 Expropriation 19
XII SUB-LET AND ASSIGNMENT 20
12.1 Consent to Sublet or Assign 20
12.2 Conditions Precedent 20
12.3 Landlord's Option 20
12.4 Conditions of Consent 21
12.5 Change in Control 21
12.6 Solidary Liability 21
12.7 Liability to Landlord 21
12.8 Assignment by Landlord 22
12.9 Documents 22
XIII DEFAULT AND TERMINATION 22
13.1 Events of Default 22
13.2 Re-entry 23
13.3 Right to Re-let 24
13.4 Application of Moneys 24
13.5 Abandoned Goods 24
13.6 Landlord's Right to Cure Defaults 24
13.7 Remedies Generally 25
13.8 Surrender of Leased Premises 25
XIV ACCESS BY LANDLORD 25
14.1 Right of Entry 25
14.2 Excavation 25
XV SUBORDINATION, ATTORNMENT AND STATUS
STATEMENT BY TENANT 25
15.1 Subordination and Attornment by Tenant to
Hypothecary Creditor 25
15.2 Status Statement (Estoppel Certificate) 26
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XVI MISCELLANEOUS 26
16.1 No Tacit Renewal 26
16.2 Accord and Satisfaction 26
16.3 Entire Agreement 27
16.4 Waiver 27
16.5 No Partnership 27
16.6 Force Majeure 27
16.7 Notice 27
16.8 Governing Law and Severability 28
16.9 Registration 28
16.10 Successors and Assigns 28
16.11 Security Deposit 28
16.12 Qualification to do Business 29
16.13 Non-Canadian Person 29
16.14 Waiver 29
16.15 Waiver of Liability 29
16.16 Peaceable Enjoyment 29
16.17 Interest on Overdue Payments 29
16.18 Brokerage Commission 30
16.19 Headings and Numbers 30
16.20 Interpretation 30
16.21 Financial Information 30
16.22 Hypothecary Creditor Changes 30
16.23 Solidary Liability 30
16.24 Election of domicile 30
16.25 Language 30
SCHEDULE "A" Description of Land
SCHEDULE "B" Site Plan of Leased Premises
SCHEDULE "C" Landlord's Work and Tenant's Work
SCHEDULE "D" Operating Expenses
SCHEDULE "E" Pre-Authorized Payment Plan
SCHEDULE "F" Building Modification Plans
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THIS LEASE made in Ville Mont-Royal, the eighteenth (18) day of April nineteen
hundred and ninety-five (1995)
BETWEEN: AMENAGEMENTS ROVO INC., a corporation duly incorporated under the laws
of Canada and having its head office in the City of Ville Mont-Royal,
Province of Quebec, herein acting and represented by Mr. Norman
Zavalkoff, its President, duly authorized for the purposes hereof as
he so declares,
(hereinafter referred to as the "Landlord"),
OF THE FIRST PART;
AND: PHOENIX INTERNATIONAL LIFE SCIENCES INC., a company duly
incorporated according to law and having its head office in
the City of St. Laurent, herein acting and represented by J.Y.
Caloz, it duly authorized for the purposes hereof in virtue of
a resolution passed at a meeting of its Board of Directors
held on the 23rd day of January, nineteen hundred and
ninety-five (1995), a certified copy whereof being annexed
hereto (hereinafter referred to as the "Tenant").
OF THE SECOND PART.
THE PARTIES hereby agree as follows:
PREAMBLE
BASIC LEASE PROVISIONS
SECTION I - NAME OF LEASED PREMISES - N/A
SECTION II - LOCATION OF THE LEASED PREMISES - N/A
SECTION III - AREA OF THE LANDS AND THE LEASED PREMISES
The Leased Premises hereunder contain a Gross Leasable Building Area of
approximately twenty-six thousand square feet (26,000 sq ft) measured to the
outermost limit of all walls, and a total land area approximately fifty-nine
thousand, one hundred thirty-nine (59,139) square feet, English Measure.
SECTION IV - TERM
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The Term referred to in Section 3.1 shall be of an approximate period of
fourteen (14) years and one-half month (1/2) month, commencing on the
Commencement Date, (being the date Landlord gives Tenant vacant possession of
the Leased Premises), and ending on April 30, 2009.
SECTION V - MINIMUM RENT
The Minimum Rent provided for in Sub-Section 4.1.1 is:
PERIOD MINIMUM ANNUAL MONTHLY
RENTAL PAYMENT
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Commencement Date
to April 30, 1999 $175,500.00 $14,625.00
From May 1, 1999
to April 30, 2004 $201,500.00 $16,791.67
From May 1, 2004
to April 30, 2009 $227,500.00 $18,958.33
payable according to the provisions of Sub-Section 4.1.1.
SECTION VI - INITIAL PAYMENT OF TAXES AND OPERATING EXPENSES
For purposes of Sections 5 and 6, the initial payments of Taxes and Operating
Expenses shall be a per annum amount of Fifty-three thousand, seven hundred and
forty-one dollars and eighteen cents ($53,741.18) per square foot of the Gross
Leasable Area, that is, a per month amount of Four Thousand, four hundred and
seventy-eight dollars and forty-three cents (4,478.43);
SECTION VII - USE OF THE LEASED PREMISES
The Tenant shall use the Leased Premises solely for the purpose of conducting
the business of office, laboratory and related uses.
SECTION VIII -NOTICE
Notices shall be sent to the following addresses:
(i) Landlord: 5500 Royalmount Avenue
Suite 200
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Ville Mont-Royal, Quebec
H4P 1H7
(ii) Tenant: 4625 Dobrin Street
St. Laurent, Quebec
H4R 2127
SECTION IX - DEPOSIT
The Tenant shall deposit with the Landlord the sum of ______________ ($________)
applicable to
ARTICLE I
DEFINITIONS- INTENT AND INTERPRETATION
1.1 DEFINITIONS
When used in this Lease or in any schedule attached to this Lease, the following
words or expressions have the meaning hereinafter set forth, unless the context
indicates otherwise:
1.1.1 "Additional Rent" means any and all sums of money or charges required
to be paid by the Tenant under this Lease (except Minimum Rent),
whether or not the same are designated "Additional Rent" and whether
or not the same are payable to the Landlord or otherwise, and,
notwithstanding anything contained in the Civil Code to the contrary,
without deduction, diminution, set-off or compensation whatsoever.
Unless otherwise specifically provided, Additional Rent is due and
payable with and in addition to each monthly instalment of Minimum
Rent;
1.1.2 "Architect" means the architect from time to time named by the
Landlord, and whose decision or certificate, whenever required
hereunder, shall be final and binding on the parties hereto provided
that such decision or certificate is reasonable and in accordance with
the standards of such person's profession.
1.1.3 "Bankruptcy Act" means the Bankruptcy and Insolvency Act, S.C.
1992, c. 27 and any amendments thereto or replacements thereof.
1.1.4 "Building" means the building part of the Leased Premises, as may be
altered or expanded from time to time.
1.1.5 "C.P.I." means the Consumer Price Index (All items for regional cities)
for the City of Montreal as published by Statistics Canada, or failing
it, the index most nearly
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corresponding thereto and with the appropriate conversions being made
where the basis of comparison or calculation has changed;
1.1.6 "Civil Code" means the Civil Code of Quebec, S.Q. (1991) ch. 64 as
amended.
1.1.7 "Creditors Arrangement Act" means the Companies Creditors Arrangements
Act, S.C. c. 36 and any amendments thereto or replacements thereof.
1.1.8 "Gross Leasable Area" means the building area expressed in square feet,
as certified by the Architect, of the Leased Premises, measured from
the exterior face of all exterior walls,
1.1.9 "HVAC System" means the entirety of the system in the Building, for the
supply of heating, ventilating and air-conditioning to the Building
wherever such system, or portions thereof, is located, including any
central plant therefor and the improvement and fixtures necessary for
any such central plant and all the appurtenances and equipment and
systems associated with or for such a system and includes the apparatus
for the further processing and distribution of exhaust air such as
ducts, diffusers, reheat coils, controls and other apparatus and
equipment therefor;
1.1.10 "Hypothecary Creditor" means any hypothecary creditor of the Leased
Premises or any part thereof;
1.1.11 "Landlord" means the Party of the First Part and its successors and
assigns.
1.1.12 "Lease" means the present agreement, including the Preamble, all
written modifications or amendments, all schedules as well as all Rules
and Regulations adopted and promulgated by the Landlord;
1.1.13 "Lease Year" means a period of time, the first Lease Year commencing on
the first day of the Term hereof, and ending on the last day of the
ensuing twelve (12) month period.
Lease Year, insofar as Operating Expenses are concerned, for the first
Lease Year signifies the period from commencement to July 31st, for all
subsequent Lease Years, all consecutive twelve (12) month periods
commencing on the first day of the month of August and terminating on
the 31st day of July;
It is understood that the Landlord may at anytime during the Term
change the Lease Year, provided that the Tenant is not prejudiced
financially as a result.
1.1.14 "Leased Premises" means the building bearing civic number 2350 Cohen
Street, Ville Saint Laurent, Province of Quebec, and the lands
described in Schedule "A", and other
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improvements, equipment and facilities erected or situated on those
lands from time to time;
1.1.15 "Minimum Rent" means the rent payable by the Tenant pursuant to
Sub-Section 4.1.1 hereof;
1.1.16 "Operating Expenses" are defined in Schedule "D";
1.1.17 "Sales Tax" means all goods and services tax, provincial sales tax,
value added tax and any other existing or future tax of a similar
nature imposed by any governmental authority with respect to any amount
payable by Tenant to Landlord under this Lease.
1.1.18 "Surtax" means the tax on non-residential immoveables and all additions
to and substitutions for any such tax, imposed against the Landlord
and/or the Leased Premises.
1.1.19 "Taxes" means all municipal, school, urban community taxes (if any),
local improvement, snow removal and special taxes (and including any
tax on the Landlord and/or the owners of the Leased Premises, which
may replace the special, local improvement, municipal, school and/or
urban community taxes, rates, levies, assessments) any business and/or
water taxes now levied against the Landlord that were previously
levied against the Tenant by the province or the municipality, and all
tax on paid-up capital assessed against the Landlord or the owners of
the Leased Premises with respect to the Leased Premises, and all other
taxes, rates, duties, charges, assessments, impositions and levies
assessed, levied or imposed by any competent authority having
jurisdiction upon or against the Leased Premises or levied, assessed
or imposed against the Landlord on account of its ownership of the
Leased Premises or its interest therein.
1.1.20 "Tenant" means the Party of the Second Part and its permitted
successors and assigns;
1.1.21 "Term" means the period of time for which this Lease has been granted
as described in Section 3.1 hereof;
1.1.22 "Utilities" means electricity, gas, water, fuel, steam, power and all
other utilities consumed in any part of the Leased Premises.
1.2 INTENT
It is the intent of the parties to this Lease that the Lease shall be totally
net and care free to the Landlord, except as expressly stipulated in this Lease.
Subject only to the latter exception, the Landlord will not be liable to
contribute to any costs, charges, expenses or outlays with respect to the Leased
Premises and/or to the Building.
1.3 DUTY TO ACT REASONABLY
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The parties agree to act reasonably with one another in their respective
dealings regarding this Lease and will cause their professionals, agents,
employees and others acting on their behalf to do likewise.
ARTICLE II
LEASE
2.1 LEASE OF PREMISES
The Landlord hereby leases to the Tenant and the Tenant hereby leases from the
Landlord, the Leased Premises which have an approximate Gross Lessable Area as
set forth in Section III of the Preamble, subject to certification by the
Architect.
2.2 DEFECTS
The Landlord shall have no obligation to the Tenant regarding defects, if any,
in or in respect to the Leased Promises or in respect to the use for which the
Premises are leased. The Landlord will assign any rights that it has against the
person from whom it acquired the Leased Premises to the Tenant with respect to
any defects in the Leased Premises, or, in the event such assignment is not
legally recognized, then Landlord shall take such steps as Tenant shall request,
at Tenant's sole cost and expense, to pursue the person from whom Landlord
acquired the Leased Premises.
ARTICLE III
TERM
3.1 TERM
The Tenant shall occupy the Leased Premises throughout the Term which shall be,
unless sooner terminated pursuant to any other provision hereof, a period equal
to that set forth in Section IV of the Preamble.
ARTICLE IV
RENT
4.1 RENTAL
The Tenant covenants and agrees to pay from and after the Commencement Date, to
the Landlord, or as the Landlord may direct, in lawful money of Canada, and,
notwithstanding any law, usage or custom to the contrary, without any prior
demand therefor and without any set-off, compensation, diminution, or deduction
whatsoever, rental comprised as follows:
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4.1.1 Minimum Rent with respect to each year of the Term equal to the amount
provided for in Section V of the Preamble and payable in equal monthly
instalments equal to the amount provided for in Section V, in advance
on the first day of each calendar month, the first instalment of
Minimum Rent to become due on the Commencement Date. If the
Commencement Date is on a day other than the first day of a calendar
month, then the Tenant shall pay, on the Commencement Date, a portion
of the Minimum Rent pro-rated on a per diem basis from the Commencement
Date to the end of the month in which the Commencement Date occurs,
based upon a period of three hundred and sixty-five (365) days.
4.1.2 The Tenant shall also pay as Additional Rent:
(a) its Operating Expenses in the manner set forth in Article V;
(b) Taxes, as set out in Article VI;
(c) unless the Surtax is included within Taxes and/or Operating Expenses,
the surtax as provided for in Section 6.5;
(d) the cost of Utilities, heating and air-conditioning as provided for in
Article VII.
4.2 LATE PAYMENT CHARGES
Tenant recognizes that the late payment of any rent or other sum due hereunder
will result in administrative expense to Landlord, the extent of which
additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is due and
unpaid five (5) days after said amount is due more than twice in any Lease Year,
such amount shall be increased by a late charge of an amount equal to:
(a) $50.00 plus
(b) $5.00 per day for each day after said five (5) day period.
The amount of the late charge to be paid by Tenant shall be reassessed and added
to Tenant's obligation for each successive monthly period until paid. The
provision of this paragraph in no way relieves the Tenant of the obligation to
pay rent or other payments on or before the date on which they are due, nor to
pay interest on past due amounts as required under this Lease, nor do the terms
of this paragraph in any way affect Landlord's remedies under this Lease in the
events that rent or other payment is unpaid after the date due.
ARTICLE V
OPERATING EXPENSES
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5.1 OPERATING EXPENSES
The Tenant covenants and agrees to pay to the Landlord, or as the Landlord may
direct, during each Lease Year, in equal consecutive monthly instalments in
advance as Additional Rent, without any set-off, compensation or deduction
whatsoever, an amount equal to Taxes and Operating Expenses on the first day of
each month, as hereinafter determined.
5.2 INITIAL AMOUNT OF TAXES AND OPERATING EXPENSES
The initial amount of Taxes and Operating Expenses shall be an annual amount
equal to the amount provided for in Section VI of the Preamble. This amount
shall be adjusted at the end of the Lease Year or during any Lease Year based on
real costs incurred by the Landlord and on the Landlord's expectation of costs
for the current or following Lease Year or part thereof.
The amounts payable by the Tenant pursuant to the above paragraph shall be
estimated by the Landlord for each Lease Year; the Tenant agrees to pay to the
Landlord, in addition to its Minimum Rent, the Operating Expenses in monthly
instalments in advance, on the first day of each calendar month, subject, in the
case of the Surtax, to Section 6.5.2. At the end of each Lease Year for which
estimates have been determined, the Tenant shall be advised of the real amounts
payable as Operating Expenses, and, if the amount the Tenant has paid is less
than the amounts due, the Tenant shall pay such additional amounts due with the
next monthly payment of Minimum Rent. If the Tenant has paid in excess of the
amounts due, the excess shall be refunded by the Landlord in the form of a
credit applied towards the next Minimum Rent and Additional Rent payments due.
Landlord may require adjustments for taxes and insurance during any Lease Year
if the expected or actual expenses exceed the initial estimates. Landlord may
alternately, at its sole option, require Tenant to pay Taxes and/or Insurance
directly to Landlord upon Landlord being required to make payment for same, in
accordance with the procedure set forth in Section 6.3 (e).
ARTICLE VI
TAXES
6.1 TAX CONTESTATION
The Landlord shall not have the right to contest taxes during the first ten (10)
years of the Term, unless the Tenant so requests. The Tenant shall pay to the
Landlord, within five (5) days after demand therefor by the Landlord, as
Additional Rent, any expenses, including legal, appraisal, administration and
overhead expenses, incurred by the Landlord in obtaining or attempting to obtain
a reduction of any Taxes, provided, however, the Landlord shall have no
obligation to contest the levying or imposition of any Taxes.
6.2 BUSINESS AND OTHER TAXES OF THE TENANT
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As Additional Rent and to the complete exoneration of the Landlord, the Tenant
shall pay to the competent authority having jurisdiction, all water and business
taxes, garbage taxes and all taxes imposed or levied against the personal or
moveable property, trade fixtures and other property placed by the Tenant in, on
or about the Leased Premises. If any such taxes are imposed or levied against
the Landlord or the Landlord's property in or on the Leased Premises and the
Landlord pays the same (which the Landlord shall have the right to do regardless
of the validity of such levy) then the Tenant shall forthwith reimburse the
Landlord, as Additional Rent, the amount of such payment by the Landlord. Should
the assessed value of the Leased Premises be increased by the inclusion of the
value of such property or trade fixtures of the Tenant or be increased by
alterations, additions or improvements made by the Tenant in and to the Leased
Premises and if the Landlord pays the taxes based on such increased assessments
(which the Landlord shall have the right to do regardless of the validity
thereof) then and in such event the Tenant shall upon demand likewise pay to the
Landlord as Additional Rent the amount of such taxes resulting from such
increase in the assessment. Should any competent authority having jurisdiction
require that any of the taxes mentioned in this Section 6.2 be paid by the
Landlord in lieu of payment by the Tenant, then, regardless of the validity or
correctness of such requirement, the Tenant undertakes to pay to the Landlord
the amount of any such taxes charged to the Landlord on account of or related to
the Leased Premises.
6.3
[6.3a) DELETED BY THE PARTIES.]
b) The Tenant shall (i) pay to the taxing authorities or to the Landlord
as Additional Rent as the Landlord may direct, and discharge in each
year during the Term and within the times provided for by the taxing
authorities, all Taxes that are levied, rated, charged or assessed from
time to time, respectively against the Leased Premises or any part
thereof, on the basis of a separate property tax bill and separate
property assessment notice rendered by any lawful taxing authority;
(ii) provide the Landlord within ten (10) days after demand with a copy
of any separate tax bills and assessment notices for the Leased
Premises or any part thereof, (iii) promptly deliver to the Landlord
receipts evidencing the payment of such Taxes payable to any such
taxing authorities as aforesaid and furnish such other information in
connection therewith as the Landlord reasonably requires.
c) In addition to the taxes payable by the Tenant pursuant to paragraph
(b) of this Article, the Tenant shall pay as Additional Rent to the
lawful taxing authorities, or to the Landlord, as it may direct, and
shall discharge in each Lease Year when the same becomes due and
payable (i) all taxes, rates, duties, assessments, or surtaxes charged
against the Landlord in lieu thereof and other charges that are levied,
rated, charged or assessed against or in respect of all improvements,
equipment and facilities of the Tenant on or in the Leased Premises, or
any part or parts thereof, or against the Landlord on account of its
ownership thereof or interest therein, including Tax on capital; and
(ii) every tax and license fee which is levied, rated, charged or
assessed against or in respect
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of any and every business carded on in the Leased Premises, or any
surcharge exigible in lieu thereof against the Landlord on account of
its ownership thereof or interest therein, (all of the foregoing being
collectively referred to as "Business Taxes") and whether in any case,
any such taxes, rates, duties, assessments or license fees are rated,
charged or assessed by any Federal, Provincial, Municipal, School or
other body during the Term or any extension thereof.
d) The Tenant shall (a) upon request of the Landlord [d(i) AND (ii)
DELETED BY THE PARTIES] (iii) furnish such other information in
connection with any such Taxes and any such Business Taxes payable by
the Tenant pursuant to Section "c" of this Article as the Landlord
reasonably determines from time to time; and (b) promptly deliver to
the Landlord notice of any appeal or contestation which the Tenant
shall intend to institute with respect to any such Taxes payable
pursuant to Section "b" of this Article or any such Business Taxes
payable pursuant to Section "c" of this Article and consult with the
Landlord prior to any such appeal or contestation. If the Tenant
proceeds to appeal or contest, the Tenant shall deliver to the Landlord
such security for the payment of such Taxes and Business Taxes as the
Landlord deems advisable and the Tenant shall diligently prosecute any
such appeal or contestation to a speedy resolution and shall keep the
Landlord informed of its progress in that regard, from time to time.
The Tenant shall promptly indemnify and keep indemnified the Landlord
from and against all loss, costs, charges and expenses occasioned by or
arising from all such Taxes and all such Business Taxes and any taxes
which may in future be levied in lieu of such Taxes or Business Taxes
or which may be assessed against any rentals payable pursuant to this
Lease in lieu of such Taxes or Business Taxes, whether against the
Landlord or the Tenant, including without limitation, any increase
whensoever occurring in Taxes or Business Taxes directly or indirectly
arising out of any appeal or contestation by the Tenant of the Taxes or
Business Taxes relating to the Leased Premises. Excluded from this
indemnity will be any failure by Landlord to pay Taxes or Business
Taxes that have been paid to it by the Tenant.
e) All Taxes payable to Landlord by Tenant shall be paid ten (10) days
after invoice by Landlord to Tenant for Taxes, and not more than ten
(10) days before such payment is due to the Taxing Authority.
6.4 SALES AND SERVICES TAX
The Tenant shall pay to the Landlord all Sales Tax calculated in accordance with
applicable legislation, it being the intention of the parties that the Landlord
shall be fully reimbursed by the Tenant with respect to any and all Sales Taxes.
Sales Tax will be paid at the same time as the payment to which same relates.
Despite any other section or clause in this Lease, the amount payable by the
Tenant under this paragraph shall be deemed not to be Rent, but the Landlord
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shall have all of the same remedies for and rights of such amount as it has for
recovery of Rent under this Lease.
6.5. Surtax
[6.5.1 DELETED BY THE PARTIES.]
6.5.2 The Tenant will pay the of Surtax in the manner described in Section
5.2 or by the date or dates the Landlord must pay the Surtax to the
taxing authority.
[6.5.3 DELETED BY THE PARTIES.]
ARTICLE VII
UTILITIES AND HEATING, VENTILATION, AIR-CONDITIONING
7.1 HEATING AND UTILITIES - ADDITIONAL RENT
7.1.1 The Tenant shall pay the cost of heating and air-conditioning (if any)
of the Building.
7.1.2 The Tenant shall assume and pay for all gas, water, steam or
hot water, electricity or other utilities which may be used in
the Leased Premises or in respect thereof and for fittings,
machines, apparatus, meters or other devices and things leased
and/or to be installed in respect thereof, or for all work or
services performed by any corporation or commission in
connection with such public utility, the whole during the Term
of this Lease or any extension thereof.
7.1.3 in no event shall the Landlord be liable for, nor has the Landlord any
obligation with respect to, an interruption or cessation of, or a
failure in the supply of any such Utilities, services or systems in, to
or serving the Leased Premises, whether supplied by the Landlord or
others.
7.2 OVERLOADING OF UTILITY FACILITIES
The Tenant will not install equipment that will exceed or overload the capacity
of any utility facilities. If equipment installed by the Tenant requires
additional utility facilities, such equipment will be installed at the Tenant's
expense in accordance with plans and specifications approved by the Landlord
prior to installation.
7.3 HEATING VENTILATING AND AIR-CONDITIONING
The Tenant shall, at its expense, operate, repair, maintain and replace, when
necessary, the heating, air-conditioning and ventilation systems in and for the
Building. Any additional
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installation over and above the initial equipment installed shall conform to
specifications approved by the Landlord, prior to their installation in the
Leased Premises.
7.4 FAILURE OF TENANT TO COMPLY
In the event that Tenant fails to commence to carry out any of the above (other
than any obligation to pay imposed with respect to the foregoing) within ten
(10) days after notice in writing from Landlord or in the event Tenant fails to
diligently continue until same shall be fully remedied, the Landlord may carry
out such obligation and include the cost in Operating Expenses, including a
fifteen percent (15%) administration fee.
ARTICLE VIII
USE OF LEASED PREMISES
8.1 USE OF PREMISES
The Tenant shall use the Leased Premises solely for the purpose of conducting
the business set forth in Section VII of the Preamble and the Tenant will not
use or permit the use of the Leased Premises or any part thereof for any other
business or purpose, without the consent of the Landlord, which consent shall
not be unreasonably withheld.
8.2 COMPLIANCE WITH LAWS
The Tenant shall, at its sole cost and expense, promptly:
8.2.1 observe and comply with all provisions of law, by-law or regulation of
all governmental, para-governmental or insurance company authorities
and, without limiting the generality of the foregoing, with all
requirements of all such authorities having jurisdiction now or
hereafter in force which pertain to the Leased Premises, the Tenant's
use of the Leased Premises or the conduct of any business in the Leased
Premises, or the making of any repairs, replacements, alterations,
additions, changes, substitutions or improvements to the Leased
Promises;
8.2.2 carry out all modifications, alterations or changes of or to
the Leased Premises and the Tenant's conduct of business in or
use of the Leased Premises which are required by any such
authorities, provided, however, that prior to effecting any
such modification, alteration or change, the Tenant shall
deliver to the Landlord for its written approval, plans and
specifications in connection therewith.
8.3 REMEDIES OF LANDLORD
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Should the Tenant in any way fail to observe any of the obligations of the
present Article VIII, Landlord shall be entitled, without prejudice to any and
all other rights and recourses hereunder, to immediate injunctive relief in
order to force the Tenant to abide by the present Article VIII or prevent the
Tenant from breaching same. The foregoing in no way restricts the right to
specific performance for any other default of the Tenant mentioned elsewhere in
this Lease.
ARTICLE IX
MAINTENANCE, REPAIRS AND ALTERATIONS
9.1 IMPROVEMENTS TO LEASED PREMISES
9.1.1 The Landlord shall effect at its expense, the improvements more fully
described in Schedule "C" hereto annexed. All improvements in and to
the Leased Premises other than those set forth in Schedule "C" 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
hereinafter set forth, and shall become the property of the Landlord
once incorporated into the Leased Premises. The Tenant undertakes to
carry out, at its own expense, modifications to the building according
to the plans annexed hereto as Schedule "F", prior to July 1, 1997, in
which case, Tenant shall furnish the Landlord with all appropriate
performance bonds and such other assurances in favour of the Landlord
as Landlord may reasonably require, before commencing any work. The
following is also required as relating to Tenant's proposed
improvements:
9.1.2 The Tenant shall forward for approval by the Landlord
mechanical / electrical plans which shall be issued in final
format and shall be stamped by a professional engineer. Plans
shall be accompanied by full specifications for all materials
provided.
9.1.3 All sprinkler and fire protection work shall be installed in
accordance with standards required by Landlord's insurers.
Plans for the sprinkler work shall be submitted to the
Landlord's insurer for approval.
9.1.4 The Tenant, at his expense shall obtain an architect's opinion that
drainage is adequate in new parking lot.
9.1.5 The Tenant, at his expense, shall provide the services of a
roof inspector acceptable to the Landlord who shall supervise
the roof cuts and provide the Landlord with a copy of his
reports.
9.1.6 All work shall be in accordance with all governing codes and
regulating agencies having jurisdiction over the work.
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9.1.7 The Tenant shall provide details with regards to environmental
protective measures taken for the generator fuel tank. (Ignore
this item, if generator is gas fired.).
9.1.8 Tenant to provide full and final quittances from all trades
performing work on the property no later than 60 days
following final substantial completion of the work.
9.1.9 Tenant to provide full "as built" set of drawings no later
than 60 days following substantial completion of the work,
which shall be signed by the professionals supervising the
work.
9.1.10 The Landlord reserves the right to review the plans of any
"lien future" between the property known as 2350 Cohen and the
property known as 4625 Dobrin.
9.1.11 The Tenant shall provide the Landlord with satisfactory proofs of
insurance of all contractors working on the Leased Premises prior to
the commencement of work and shall be responsible that insurance
satisfactory to the Landlord is held in force for the duration of the
work or any other major improvements which the Tenant wishes to
undertake from time to time. These certificates shall name the Landlord
as named insured.
The parties agree that the above comments are not all-inclusive. Landlord has
not examined Tenant's plans and specifications in detail and assumes no
responsibility for the sufficiency or standards of the plans or for their
execution.
Any implied approval hereby given is for the broad concept shown by the plans,
and is still subject to the comments annexed.
9.2 CONDITIONS OF PREMISES
9.2.1 Subject to Section 2.2, the taking of possession of the Leased Premises
by the Tenant shall be conclusive evidence as against the Tenant that
the Leased Premises were satisfactory to the Tenant at the time of such
possession. The Tenant acknowledges that it has received no promise of
the Landlord to after, remodel, improve, repair, decorate or clean any
part of the Leased Premises, and no representation respecting the
condition of the Leased Premises has been made by the Landlord to the
Tenant. The Tenant shall, at all times, keep the Leased Premises in a
clean and sanitary condition, in accordance with the laws, directions,
rules and regulations of governmental agencies having jurisdiction, and
at Tenant's sole expense, and in all respects the Tenant shall comply
with all requirements of law applicable to the Leased Premises.
9.2.3 The Tenant shall at all times during the Term hereof or any extension
or renewal thereof, at its own cost and expense, maintain the Leased
Premises and shall keep them and every part thereof in working order
and condition and shall promptly make all necessary repairs
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and replacements (including major structural repairs) to the Leased
Premises and to pipes, mains and any other machinery, facilities and
equipment belonging to or connected with the Leased Premises or used in
their operation, including without limitation, heating, plumbing,
ventilating, electrical, parking areas, loading areas, driveways,
ramps, sidewalks, fences, lawns and shrubs, the whole at the Tenant's
expense and whether the repairs are normally defined at Landlord's or
Tenant's and whether such repairs be major or minor, and shall heat the
Building to a sufficient temperature to avoid damage or deterioration
of the Building. When used in this Section, the term "repairs" shall
include replacements or renewals when necessary, and all such repairs
made by the Tenant shall be equal in quality and class to the original
work.
9.3 MAINTENANCE AND REPAIRS BY TENANT
9.3.1 The Tenant shall, at all times during the Term, at it sole expense,
keep and maintain in good order, first-class condition and repair as
reasonably determined by the Landlord, the whole of the Leased Premises
and the Tenant shall, notwithstanding any article to the contrary in
the Civil Code with respect to maintenance and repairs and subject to
Section 9.4, make all needed repairs and replacements (whether major or
minor and those which the Civil Code requires of a landlord) and
notwithstanding Article 1867 of the Civil Code, any work that may be
required from time to time to maintain the Leased Premises for the
purpose for which they are leased, with due diligence and dispatch. If
the Tenant fails to maintain, repair or replace and if it does not
commence to remedy the defect within ten (10) days after written notice
from the Landlord to that effect and diligently proceed to complete
said work thereafter, the Landlord may then remedy the defect and take
all necessary measures thereto; the Tenant shall then pay to the
Landlord, on demand, as Additional Rent, all required costs for work
done, plus fifteen percent (15%) for the Landlord's overhead and
supervision costs, and the Tenant agrees that such entry into the
Leased Premises by the Landlord does not constitute an eviction or
breach of any obligation to provide peaceable enjoyment.
9.3.2. The Tenant shall provide the Landlord, upon written request, with
evidence of the following contracts which shall be kept in force during
the Term:
a) Fire alarm service contract;
b) Sprinkler service contract and test reports;
c) Air conditioning service contract and reports;
d) Grease interceptor cleaning contract and reports.
9.3.3 The Tenant shall permit the regular inspections of the Landlord's
insurer and shall comply with all reasonable recommendations of the
Landlord's insurer.
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9.4 APPROVAL OF TENANT'S REPAIRS
Before commencing any repair, alteration, replacement, change or improvement in
and to the Leased Premises, the Tenant shall submit to the Landlord:
9.4.1 for the Landlord's prior approval, details of the proposed work,
including drawings and specifications prepared by qualified architects
or engineers and conforming to good engineering practice;
9.4.2 such indemnification against hypothecs, costs, damages and expenses as
the Landlord reasonably requires; and
9.4.3 evidence satisfactory to the Landlord that the Tenant has obtained, at
its expense, all necessary consents, permits, licences and inspections
from all governmental authorities having jurisdiction.
Any repair, replacement, alteration, change or improvement which is made by the
Tenant without the prior written approval of the Landlord or which is not made
in accordance with the drawings and specifications approved by the Landlord and
acting reasonably, shall, if requested by the Landlord, be promptly removed by
the Tenant at the Tenant's expense and the Leased Premises shall be restored to
its previous condition. Should the Tenant not comply with the Landlord's request
to Restore the Leased Premises to its previous condition, the Landlord, acting
reasonably, shall have the right to have the Leased Premises restored to its
previous condition at the expense of the Tenant, including an additional charge
of fifteen percent (15%) for the Landlord's overhead and supervision costs,
payable on demand.
All such repairs, replacements, alterations, changes or improvements by the
Tenant in and to the Leased Premises approved of by the Landlord shall be
performed at the sole cost of the Tenant, by competent workmen, in a good and
workmanlike manner, and in accordance with the drawings and specifications
approved by the Landlord and subject to the reasonable regulations, controls and
inspection of the Landlord. The Landlord shall have the right, at the Tenant's
expense, to have all such work in and to the Leased Premises approved by outside
consultants chosen by the Landlord.
9.5 SPECIAL REPAIRS
Should Landlord effect repairs, alterations, additions or improvements to the
Leased Premises (which are not Tenant's responsibility under this Lease), 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, subject to Section 10.5, be included in Operating Expenses.
9.6 MAINTENANCE BY THE LANDLORD
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The Landlord shall at all times throughout the Term, but subject to Article X,
maintain and repair or cause to be maintained and repaired, as would a prudent
owner of a reasonably similar property, the structure of the Building including,
without limitation, the foundations, exterior weather walls, sub-floor, roof,
bearing walls and structural columns and beams of the Building. The cost of such
maintenance and repairs shall be included in Operating Expenses unless the
Landlord is required, due to the business carried on by the Tenant, to perform
such maintenance and repairs by reason of the application of laws or ordinances
or the direction, rules or regulations of any duly constituted regulatory body,
or by reason of any act, omission to act, neglect or default of the Tenant, or
those for whom the Tenant is in law responsible, in which event, the Tenant
shall be liable and responsible for the total cost of such maintenance and
repairs plus a sum equal to fifteen percent (15%) of the total cost of such
maintenance and repairs representing the Landlord's administrative and
supervision costs, which amount shall immediately become due and payable to the
Landlord as Additional Rent upon demand.
[9.7 DELETED BY THE PARTIES.]
9.8 RIGHT OF INSPECTION
During the Term, upon notice to Tenant, except in the event of emergency, the
Landlord, its servants, employees and agents may enter the Leased Premises from
time to time, as the Landlord sees fit, during normal business hours, or in the
case of emergency, at any other time, to examine the state of repair, decoration
and order of the Leased Premises and the equipment, fixtures and improvements
therein and to make such alterations or repairs as the Landlord shall deem
necessary acting reasonably for the safety or preservation of the Leased
Premises. All lack of repair and maintenance found upon such examination and for
which the Tenant is responsible pursuant to this Lease shall, within ten (10)
days after notice to the Tenant or such longer time as is reasonable in the
circumstances, be properly and sufficiently repaired by the Tenant. If the
Tenant fails to repair and maintain as provided for in this Lease, the Landlord
may, without prejudice to any of its other rights or recourses, but shall not be
obliged to, carry out such repairs or maintenance as may be necessary and all
costs incurred by the Landlord for making such repairs or maintenance, together
with a sum equal to fifteen percent (1 5%) of such sum representing the
Landlord's administrative and supervision costs, which amount shall be payable
forthwith by the Tenant as Additional Rent. In no event shall the Landlord, its
contractors, subcontractors, agents, servants or employees be liable for any
damage, contractual or extra- contractual, suffered to the Leased Premises by
reason of the foregoing entry, examination or work as provided for in this
Section.
9.9 LOSS OF ENJOYMENT
It is expressly understood that any loss of enjoyment of the Leased Premises
resulting from the necessity to make repairs, replacements, maintenance or
re-building, alterations, or improvements or resulting from the carrying out
thereof, whether by the Landlord or the Tenant and regardless of whether the
party so carrying out is or is not bound thereto to this Lease, shall
17
not constitute grounds for the cancellation, termination or resolution of this
Lease, or for diminution of the rent payable herein, or for a claim in damages,
contractual or extra-contractual.
Notwithstanding anything to the contrary contained herein, Landlord shall not
carry out any repairs, replacements, construction or improvements in the Leased
Premises except in accordance with Sections 9.6, 9.7 and 9.8 hereof.
9.10 OVERLOADING OF FLOORS
The Tenant shall not bring upon the Leased Premises any machinery, equipment,
article or thing that by reason of its weight, size or use might, in the opinion
of the Landlord, damage the Leased Premises nor shall the Tenant at any time
overload the floors of the Leased Premises. If any damage is caused to the
Leased Premises by any machinery, equipment, object or thing or by overloading,
or by any act, neglect or misuse on the part of the Tenant or any of its
servants, agents or employees or any person having business with the Tenant, the
Tenant shall forthwith repair such damage or, at the option of the Landlord, pay
the Landlord forthwith on demand as Additional Rent the costs of repairing such
damage plus the sum equal to fifteen percent (15%) of such costs representing
Landlord's administrative costs.
9.11 DISCHARGE OF HYPOTHECS
The Tenant shall, throughout the Term, promptly pay all its contractors,
suppliers and workmen for any work or services performed or materials supplied
which might give rise to a prior claim or hypothec and shall ensure that no
hypothec be registered against the Leased Premises or any part thereof as a
result of any work carried out by or at the request of Tenant. Should a hypothec
be registered against the Leased Premises or any part thereof as a result of
work or services performed by or on behalf of the Tenant or as the result of
materials supplied to the Tenant, the Tenant shall upon request by the Landlord,
its agents or representatives, cause the hypothec to be discharged forthwith
and, should the Tenant fail to discharge same promptly, then in such event and
in addition to any other right or remedy of the Landlord, the Landlord may, but
shall not be obliged to, discharge the same by paying the amount claimed
directly to the hypothecary creditor. The amount so paid together with all costs
and expenses, including attorney's fees incurred for the discharge of the
hypothec, shall, upon demand, be immediately due and payable by the Tenant to
the Landlord as Additional Rent.
9.12 SIGNS, AWNINGS AND CANOPIES
The Tenant shall not paint, affix, display or cause to be painted, affixed or
displayed any sign, picture, advertisement, notice, lettering or decoration on
any part of the exterior of the Building or the Leased Premises without, in each
instance, the prior written approval of the Landlord, which approval shall not
be unreasonably withheld or delayed.
9.13 SURRENDER OF PREMISES
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At the expiration of the Term or earlier termination of this Lease, the Tenant
will surrender the Leased Premises in the same condition in which the Leased
Promises were upon delivery of possession thereof for reasonable wear and tear
and except for repair which is the responsibility of the Landlord hereunder and
will surrender all keys for the Leased Premises to the Landlord at the place
then fixed for the payment of Minimum Rent and will inform the Landlord of all
combinations of locks, safes and vaults, if any, in the Leased Premises. The
Tenant shall not be permitted or required to remove anything from the Premises
at the end of the Term unless, at the time that Landlord gives its consent to
any changes or improvements, Landlord indicates to Tenant that it will require
Tenant to remove same at the end of the Term, and shall forthwith repair any
damage to the Leased Premises caused by their installations or removal. The
Tenant's obligation to observe or perform this obligation will survive the
expiration or other termination of this Lease.
9.14 TENANT'S OBLIGATION TO PROTECT
The Tenant shall protect from damage all the heating and air-conditioning
apparatus, water, gas and drain pipes, water closets, sinks and accessories
thereof in and about the Leased Premises and keep same free from all
obstructions that might prevent their free working and give to the Landlord
prompt written notice of any accident to or defects in same or any of their
accessories. Any damage resulting from misuse or failure to protect same shall
be the sole responsibility of the Tenant.
ARTICLE X
INSURANCE AND INDEMNITY
10.1 TENANT'S INSURANCE
The Tenant shall, throughout the Term and during such other time as the Tenant
occupies the Leased Premises or part thereof, at its sole cost and expense, take
out and keep in full force and effect the following insurance:
10.1.1 "all-risk" insurance, including the perils of fire, upon property of
every kind and description owned by the Tenant, or for which the Tenant
is legally liable, or installed by or on behalf of the Tenant and which
is located within the Leased Premises, in amounts not less than the
full replacement cost, in each case, thereof. If there is a dispute as
to the amount which comprises full replacement cost, the decision of
the Architect or the Hypothecary Creditor shall be conclusive;
10.1.2 business interruption insurance in such amount as will
reimburse the Tenant for direct or indirect loss of earnings
attributable to all perils insured against in Sub-Section
10.1.1 when applicable and other perils commonly insured
against by prudent tenants operating under similar
circumstances;
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10.1.3 comprehensive general liability insurance including but not limited to
personal injury liability, contractual liability, contingent employer's
liability, non-owned automobile liability and owners' and contractors'
protective insurance coverage with respect to the Leased Premises, to
the business carried on, in or from the Leased Premises and to the
Tenant's use of the Leased Premises, coverage to include the activities
and operations conducted by the Tenant and any other person on the
Leased Premises, and by the Tenant and any other person performing work
on behalf of the Tenant and those for whom the Tenant is in law
responsible in any other part of the Leased Premises. Such policies
shall be issued for the global amount of not less than Two Million
Dollars ($2,000,000.) for each occurrence involving bodily injury,
death or property damage, or for such higher limits as the Landlord may
reasonably require from time to time;
10.1.4 any other form of insurance as the Hypothecary Creditor or the
Landlord may reasonably require from time to time in form, in
amounts and for insurance risks determined by them, acting
reasonably.
10.2 TERMS AND CONDITIONS OF TENANT'S INSURANCE
Each insurance policy referred to in Section 10.1, other than the "all-risk"
insurance referred to in Subsection 10.1.1 and the business interruption
insurance referred to in Subsection 10.1.2, shall name the Landlord and any
persons, firms or corporations designated by the Landlord, as named insureds as
their interests may appear, and will contain:
10.2.1 the standard mortgage clause as may be required by the Hypothecary
Creditor;
10.2.2 a waiver of any subrogation rights which the Tenant's insurers
may have against the Landlord and/or against those for whom
the Landlord is in law responsible, and, in the case of
comprehensive general liability, a cross liability and
severability of interests clause;
10.2.3 a waiver in favour of the Landlord and the Hypothecary
Creditor of any breach of warranty clause such that the
insurance policies in question shall not be invalidated as
respects their interests, by reason of any breach or violation
of any warranties, representations, declarations or conditions
contained in the policies;
10.2.4 a clause stating that the Tenant's insurance policy will be
considered as primary insurance and shall not call into
contribution any other insurance that may be available to the
Landlord.
The Landlord, for purposes of insurance, shall be designated as:
Amenagements Rovo Inc.
Les Associes Presud
20
The Landlord reserves the right to modify this list periodically at no cost to
the Landlord.
All policies shall be issued by insurers acceptable to the Landlord and shall be
in a form satisfactory from time to time to the Landlord. The Tenant agrees that
certificates of insurance or, if required by the Landlord or the Hypothecary
Creditor upon written request, certified copies of each such insurance policy
will be delivered to the Landlord as soon as practicable after the issuance of
the required insurance. All policies shall contain an undertaking by the
insurers to notify the Landlord, at the address for sending notices to the
Landlord and the Hypothecary Creditor, in writing, not less than thirty (30)
days prior to any material change, cancellation or termination thereof. The
Tenant also agrees that if the Tenant fails to take out or keep in force any
policy of insurance referred to in Section 10.1, the Landlord shall have the
right, after notice in writing to Tenant of at least three (3) business days,
but not the obligation to do so, to pay the premium and in that event the Tenant
will pay to the Landlord the amount so paid as premium plus fifteen percent
(15%) for administrative costs as Additional Rent and it will be due and payable
on the first day of the month next following the payment by the Landlord.
The acquisition and maintenance by the Tenant of the insurance policies as
required pursuant to Section 10.1 shall in no manner whatsoever limit or
restrict the liability of the Tenant under this Lease.
Notwithstanding any contribution by the Tenant to the insurance premiums, the
Tenant agrees that it shall have no insurable interest in the insurance carried
by the Landlord, and the Tenant will have no right to receive any proceeds of
any such insurance.
10.2.5 a clause stating that the Tenant's insurance policy will
extend to any and all activities which may occur on the
exterior of the Building but within the Leased Premises (which
shall included the lands) as defined in Article 1.
Furthermore, for purposes of clarity, the policy shall clearly
stipulate that coverage is extended to the parking lot of the
Tenant.
10.3 INCREASE IN LANDLORD'S INSURANCE PREMIUMS
The Tenant will not keep, or suffer to be kept, anything, or use, sell or offer
for sale any article or merchandise in, upon or about the Leased Premises that
may contravene or be prohibited by any of the Landlord's insurance policies
covering the Leased Premises or any part thereof or which will prevent the
Landlord from procuring such policies with companies acceptable to the Landlord.
If the occupancy of the Leased Premises, the conduct of business in the Leased
Premises, the sale of any merchandise on the Leased Premises (whether or not the
Landlord has consented to the sale of such merchandise) or in any other portion
of the Leased Premises or any acts or omission of the Tenant in the Leased
Premises or any other portion of the Leased Premises causes or results in any
increase in premiums for any of the Landlord's insurance policies, the Tenant
shall, upon the rendering by the Landlord of the invoices for such additional
premiums forthwith pay such increase in premiums as Additional Rent forthwith.
In determining whether increased premiums are the result of the Tenant's use of
the Leased premises or any
21
other portion the Leased Premises, a statement issued by the organization
establishing the insurance rate on the Leased Premises will be conclusive
evidence of the reasons causing the increase in premiums.
10.4 CANCELLATION OF INSURANCE
If any insurance policy on the Leased Premises or any part thereof is cancelled
or threatened by the insurer to be cancelled, or the coverage thereunder reduced
or threatened to be reduced by the insurer by reason of the use or occupancy of
the Leased Premises or any part thereof by the Tenant or by any assignee or
sub-tenant of the Tenant, or by anyone permitted by the Tenant to be upon the
Leased Premises, and if the Tenant falls to remedy the condition giving rise to
cancellation, threatened cancellation, reduction or threatened reduction of
coverage within twenty-four (24) hours after notice thereof by the Landlord, the
Landlord may, at its option, and without liability to the Tenant, either:
10.4.1 enter the Leased Premises and remedy the conditions giving
rise to the cancellation or reduction or threatened
cancellation or reduction and the Tenant will pay, on demand
as Additional Rent to the Landlord the cost thereof. The
Tenant agrees that any such entry by the Landlord is not a
re-entry or a breach of any obligation for peaceable enjoyment
contained in this Lease; or
10.4.2 re-enter the Leased Premises forthwith and thereupon the provisions of
Article XIV will apply.
The Tenant agrees that the Landlord will not be liable for damage or injury
caused to property of the Tenant or others located on the Leased Premises as a
result of any entry or re-entry by the Landlord under this Section 10.4.
10.5 LOSS OR DAMAGE
10.5.1 The Landlord shall not be liable for any loss, damage, death or injury
arising from or out of any occurrence in, upon, at or relating to the
Leased Premises (to the extent that this waiver is permitted by law),
or damage to property of the Tenant or of others located on the Leased
Premises, nor shall it be responsible for any loss of or damage to any
property of the Tenant or others from any cause whatsoever, unless such
death, injury, loss or damage results from the negligence of the
Landlord, its agents, servants and employees or other persons for whom
it may in law be responsible. Without limiting the generality of the
foregoing, the Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain, flood, snow or leaks from any
part of the Leased Premises or from the pipes, appliances, plumbing
works, roof, sub-surfaces of any floor or ceiling or from the street or
any other place or by dampness or by any other cause whatsoever and,
notwithstanding any provision of the Civil Code to the contrary, any
act or omission of any other tenant or
22
occupant of the Leased Premises. The Landlord shall not be liable for
any such damage caused by other tenants or by persons in the Leased
Premises or by occupants of property adjacent thereto or the public, or
caused by construction or by any private, public or quasi-public work.
All property kept or stored on the Leased Premises shall be so kept and
stored at the risk of the Tenant only and the Tenant shall indemnify
the Landlord and save it harmless from and indemnify it against any
claims resulting or arising out of any damages to the same, including,
without limitation, any subrogation claims by the Tenant's insurers.
10.5.2 Without in any way limiting the application of the foregoing
subsection, where any damage to person or property is caused by the
Landlord or any person for whom the Landlord is responsible on or about
the Leased Premises, and the loss is wholly or partly covered by
insurance which the Tenant is either: (a) in fact maintaining; or (b)
is required to maintain under the terms of this Lease, then to the
extent the Landlord is liable for damage, the Tenant hereby releases
the Landlord for any amount equal to the greater of the actual
insurance proceeds Tenant receives in respect of such damage or the
insurance proceeds it would receive if it maintains the required
insurance and diligently pursues all claims against each applicable
insurer.
10.6 INDEMNIFICATION OF LANDLORD
Notwithstanding any other term, obligation and condition contained in this
Lease, including, without limitation, the Landlord's obligation to repair and
the Tenant's obligation to pay the costs of insurance, but subject to Section
10.7 hereof, the Tenant shall indemnify and save it harmless from and against
any and all loss, claim, action, damage, liability and expense in connection
with loss of life, personal injury, damage to property or any other loss or
injury whatsoever arising from or out of this Lease, or any occurrence in, upon
or at the Leased Premises, or the occupancy or use by the Tenant of the Leased
Promises or any part thereof or occasioned wholly or in part by any act or
omission of the Tenant or by anyone permitted to be on the Leased Premises by
the Tenant. If the Landlord without fault on its part should be made a party to
any litigation commenced by or against the Tenant, then the Tenant shall
protect, indemnify and hold the Landlord harmless and shall pay all costs and
expenses and reasonable legal fees incurred or paid by the Landlord in
connection with such litigation. The Tenant shall also pay all costs, expenses
and legal fees that may be incurred or paid by the Landlord in enforcing the
terms, obligations and conditions of this Lease.
10.7 The Landlord will insure the Building and the Land as a reasonably
prudent landlord of a similar building, it being, however, agreed and understood
that the Landlord will not insure any of Tenant's improvements that are not
incorporated into the Building, same being the responsibility of the Tenant.
The Landlord's property insurance will contain a waiver of any subrogation
rights which the Landlord's insurers may have against the Tenant and/or those
for whom the Tenant is in law
23
responsible. The Landlord releases and waives any and all claims for damages
against the Tenant and those for whom the Tenant is in law responsible with
respect to occurrences insured or to be insured by the Landlord, whether or not
such claims arise as a result of the negligence of the Tenant or of those for
whom Tenant is in law responsible.
ARTICLE XI
DAMAGE AND DESTRUCTION AND EXPROPRIATION
11.1 DESTRUCTION OF LEASED PREMISES
a) In the event that the Building is wholly destroyed, then either Tenant
or Landlord shall have an option to cancel the Lease, upon giving the
other notice within forty-five (45) days of the event.
b) Should the Building be partially destroyed and it will take longer than
six (6) months to rebuild, then either Landlord or Tenant shall have an
option to cancel the Lease, upon giving the other notice within
forty-five (45) days of the event. If neither party elects to cancel,
then Landlord shall rebuild and all rent will abate in the proportion
that the unusable part of the Building forms to the whole of the
Building.
c) If it will take less than six (6) months to rebuild, then, provided
that Landlord is insured therefor or would have been insured therefor
had it insured as a reasonable prudent Landlord, then Landlord shall
proceed to rebuild and all rent will abate as aforementioned.
d) The Landlord's architect shall notify the Landlord and the Tenant
within thirty (30) days of the damage or destruction of the time needed
to repair.
From the date of the destruction or damage until the Leased Premises have been
restored and rendered fit for occupancy.
Upon the Tenant being notified in writing by the Landlord that the Landlord's
obligations pursuant to this Section 11.1 have been substantially completed, the
Tenant shall forthwith complete all Tenant's work, including, without
limitation, such work as provided in Schedule "C" hereto and all work required
to fully restore the Leased Premises for business fully fixtured, stocked and
staffed. The Tenant shall diligently complete the Tenant's Work and Minimum Rent
and Additional Rent shall recommence at the earlier of the expiration of sixty
(60) days following completion of Landlord's Work or the commencement of
business by Tenant in the portion of the Leased Premises that have been damaged
or destroyed.
11.2 LEASE IN FORCE
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Notwithstanding anything to the contrary contained in the Civil Code, and except
as may otherwise be provided in this Article XI, this Lease shall continue to be
and remain in full force and effect upon the occurrence of any damages or
destruction to the Leased Premises and/or the Leased Premises or any part(s)
thereof as contemplated in this Article XI.
11.3 REBUILDING
It is expressly understood that all repair and rebuilding by the Landlord under
any provision of this Article XI may be carried out by the Landlord, as the
Landlord, in its discretion, determines and, without limiting the generality of
the foregoing, in no event shall the Landlord be bound to repair or rebuild the
Leased Premises to their original form, specification or dimension, providing
that the parties agree, acting reasonably. to the form, specification and
dimension of the rebuilt premises.
11.4 EXPROPRIATION
Both the Landlord and the Tenant agree to cooperate with each other in respect
of any expropriation of all or any part of the Leased Premises, so that each may
receive the maximum award to which each is respectively entitled by law.
In the event that the whole or any part of the Leased Premises is condemned,
reserved, expropriated or taken or acquired in any manner for any public or
quasi-public use or purpose, rendering the operation of the Leased Premises, no
longer practical, then either party may, at its option, terminate this Lease by
giving notice to the other party, to the effect that the Term shall expire upon
the date of the taking of possession thereof by the expropriating authority and,
in the event of such expiration, each party shall have no claim against other
for any reason whatsoever. The Landlord and the Tenant hereby reserve all right
to claim damages against the expropriating authority. The Tenant agrees that the
Landlord shall have no obligation to contest any expropriation proceedings.
ARTICLE XII
SUB-LET AND ASSIGNMENT
12.1 CONSENT TO SUB-LET OR ASSIGN
Notwithstanding any law, usage or custom to the contrary, the Tenant shall not
transfer, assign, hypothecate or encumber this Lease or any of the Tenant's
right, title or interest therein or thereto, or sub-let the whole or any part of
the Leased Premises or permit the Leased Premises or any part thereof to be
used, occupied or possessed by another without conforming to the terms of
Section 12.3, and in any event without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld as it applies only to
a transfer, assignment or sublet. The consent to hypothecation or encumbrance
may be withheld at the Landlord's sole discretion and
25
shall not be subject to any test of reasonableness. Without limiting or
restricting, in any manner whatsoever, the Landlord's right to refuse its said
consent on other reasonable grounds, it is expressly understood and agreed that
the refusal by the Landlord to grant its said consent shall be deemed
reasonable, where the Tenant is in monetary and/or material default under this
Lease, or where the occupant, transferee, assignee or sub-lessee is not, in its
sole discretion and determination, satisfactory to the Landlord as regards
financial standing. The consent of the Landlord to any such transfer,
assignment, encumbrance, sub-let or use shall not constitute a waiver of this
Section and shall not be deemed to permit any further transfer, assignment,
encumbrance, sub-let or use by another.
12.2 CONDITIONS PRECEDENT
As a condition precedent to any transfer or assignment of this Lease or
sub-letting of the whole or any part of the Leased Premises, the Tenant shall
indicate, in writing, to the Landlord the proposed assignee, transferee or
sub-lessee and providing other information as the Landlord, acting reasonably,
may request, including, without limitation, information concerning the
principals thereof and such other financial or business information as the
Landlord or the Hypothecary Creditor may request, and the specific terms and
conditions of such proposed assignment or sub-lease.
12.3 LANDLORD'S OPTION
The Landlord shall have a period of fifteen (15) days from receipt of the
request for its consent required pursuant hereto and all requested information
to either:
12.3.1 consent;
12.3.2 refuse its consent as provided in Section 12.1;
[12.3.3 deleted by the parties.]
If the Landlord consents to such assignment, transfer or sub-let, the Tenant
shall have a delay of sixty (60) days commencing from receipt of such consent to
proceed to assign, transfer or sub-let to the interested party in accordance
with the terms and conditions indicated to the Landlord. If the Tenant fails to
so assign, transfer or sub-let within the said delay of sixty (60) days, the
Landlord's consent shall be deemed null and void and the Tenant shall not be
permitted to assign, transfer or sub-let without again conforming to the
provisions of this Article XIII.
12.4 CONDITIONS OF CONSENT
Notwithstanding the provisions of Section 12.3 and in addition thereto, the
Landlord shall have the right to require the prospective sub-lessee, transferee
or assignee to execute a new lease with the Landlord on the same terms and
conditions as contained in this Lease, and in such event the
26
Tenant shall guarantee to the Landlord, in form and substance satisfactory to
the Landlord, the performance of all obligations of such sub-lessee, transferee
or assignee under the new lease.
12.5 CHANGE ON CONTROL
The following shall be deemed to be a sub-lease for the purposes of this Lease
and shall be subject to the provisions of Article XII:
12.5.1 any transfer, sale or assignment involving in effect (by one
or more transactions) a transfer, directly or indirectly, of
fifty percent (50%) or more of the voting shares of the share
capital of the Tenant;
12.5.2 any transfer, sale or assignment involving in effect (by one
or more transactions) a transfer, directly or indirectly, of
fifty percent (50%) or more of the ownership in a partnership,
where the Tenant is a partnership;
12.5.3 if any person other than the Tenant has or exercises the right
to manage or control the Leased Premises or any part thereof,
or any of the business carded on therein other than subject to
the direct and full supervision and control of the Tenant:
12.5.4 if effective control of the Tenant is acquired or exercised by
any person not having effective control of the Tenant as at
the date of execution of this Lease.
Notwithstanding the foregoing, this Section 12.5 shall not apply to the Tenant
at the time of execution of this Lease and thereafter continuing during the Term
and so long as the Tenant is a public corporation whose shares are traded and
listed on any recognized stock exchange in Canada.
12.6 SOLIDARY LIABILITY
Notwithstanding Article 1873 of the Civil Code of Quebec or any other
legislation to the contrary, the Tenant shall remain solidarily liable with the
assignee, transferee or sub-lessee for the due fulfillment of all of the
obligations undertaken herein by the Tenant, or as the case may be, all of the
obligations of such sub-lessee, transferee or assignee. The Tenant shall not be
released from performing any of the terms, obligations and conditions of this
Lease, the Tenant hereby waiving the benefits of division and discussion.
12.7 LIABILITY TO LANDLORD
No assignment, transfer or sub-let shall be permitted unless the sub-lessee or
assignee, as the case may be, shall have expressly agreed to be bound directly
towards the Landlord for the due fulfilment of all of the Tenant's obligations
under this Lease. The Tenant and the assignee, transferee and subtenant will
execute such documentation as Landlord requires. At the
27
Landlord's option, the assignee or transferee will enter into a new lease with
the Landlord at the same terms and conditions as this Lease save for the Leased
Premises which will be delivered as is, whereas, the Term, which will be the
unexpired portion of the Term, and the Minimum Rent of which will be calculated
in accordance with Section 4.1.1. The Tenant will guarantee the obligations of
the "Tenant" under the new lease in a manner Landlord determines, acting
reasonably.
If Landlord consents to a sublease, all sub-rentals and similar amounts payable
by a subtenant or other person to the Tenant are hereby irrevocably and
unconditionally assigned to the Landlord such that the subtenant or other person
will pay all such sums directly to the 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 subtenant or other person have the
effect of releasing the Tenant from any of its obligations under this Lease.
Furthermore, it is understood that if Landlord does not collect any sub-rentals
or other amounts from any subtenant or other person the Tenant will have no
claim or defense against the Landlord in any manner whatsoever, provided that
the Landlord notifies Tenant of the defaults on a timely basis. Even in the case
of an assignment or transfer, the Tenant shall at all times be considered a
solidary cotenant, until the end of the Term stipulated herein, and remain
subject to all obligations of the Lease; in case of repudiation of the Lease by
the Assignee or Subtenant, its trustee or liquidator or other legal
representative, the Tenant shall remain liable and in no way relieved of any
obligation of the present Lease.
12.8 ASSIGNMENT BY LANDLORD
In the event of the sale, lease, transfer or other disposition by the Landlord
of the Leased Premises or any part thereof, or the assignment by the Landlord of
this Lease or any interest of the Landlord hereunder, and to the extent that
such purchaser or assignee assumes the obligations of the Landlord hereunder or
by law, the Landlord shall, thereupon and without further agreement, be released
of all liability with respect to such obligations, but only those falling due
after the date of the applicable sale, lease, transfer or other disposition or
the assignment.
12.9 DOCUMENTS
The cost of preparing, negotiating and executing any document in respect of any
assignment, transfer or sublease will be borne exclusively by Tenant.
ARTICLE XIII
DEFAULT AND TERMINATION
13.1 EVENTS OF DEFAULT
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Each of the following events (hereinafter called an "Event of Default") shall be
a default hereunder by the Tenant and a breach of this Lease:
13.1.1 if the Tenant fails to pay Minimum Rent and any other sum
payable pursuant to this Lease as and when the same become
payable and fails to correct such default within five (5) days
after notice in writing from the Landlord, it being hereby
agreed and understood that if the Landlord shall be required
to send two (2) such notices in any consecutive period of
twelve (12) months, Tenant shall not be entitled to any
further notice; or
13.1.2 if, during the Term, any of the goods or moveable effects on
the Leased Premises are seized or taken in execution or
attachment by any creditor of the Tenant, pursuant to a
judgment rendered against the Tenant, or pursuant to this
Lease (in the event of a seizure before judgment it shall be
considered an Event of Default under the present Article if a
main-levee of the seizure is not obtained within fifteen (1 5)
days of the seizure being practiced); or
13.1.3 if a writ of execution is issued against the goods or property
of the Tenant or against this Lease; or
13.1.4 if the Tenant or any person occupying the Leased Premises
files any proposal or makes any assignment for the benefit of
creditors or any arrangement or compromise or becomes bankrupt
or insolvent or takes the benefit of or becomes subject to any
legislation that may be in force relating to bankrupt or
insolvent debtors; or
13.1.5 if any application or petition or certificate or order is made
or granted for the winding-up or dissolution or liquidation of
the Tenant or its assets, voluntarily or otherwise; or
13.1.6 if the Leased Premises, at any time during the Term, becomes
vacant by reason of their abandonment by the Tenant or by the
removal of the Tenant by legal process for non-payment of
rent, breach of covenant or any other cause; or
13.1.7 if any insurance policy insuring the Leased Premises or the
Landlord with respect to the Leased Premises is cancelled or
threatened to be cancelled by reason of the use and occupation
of the Leased Premises or any part thereof, or
13.1.8 if the Tenant assigns, transfers, encumbers, sub-lets or
permits the occupation or use or the parting with or sharing
possession of all or any part of the Leased Premises by anyone
except in a manner permitted by this Lease and the default is
not cured within fifteen (15) days of written notice of such
default from the Landlord; or
13.1.9 if any hypothec or other encumbrance is registered against the
Leased Premises by reason of any act or omission of the Tenant
and the default is not cured within fifteen (15) days of
written notice of such default from the Landlord; or
29
13.1.10 if at any time during the Term, the Tenant or any other person
removes or attempts to remove any of the moveable effects of
the Tenant from the Leased Premises, save and except in the
ordinary course of the Tenant's business, without the written
approval of the Landlord; or
13.1.11 if a receiver or a sequestrator is appointed for all or any
portion of the Tenant's property; or
13.1.12 if the Tenant is in default in fulfilling any other term,
condition or obligation of this Lease and the default is not
cured within fifteen (15) days of written notice of such
default from the Landlord.
[13.1.13 deleted by the parties.]
then and in every such Event of Default, at the Landlord's option, the Lease
will be ipso facto resiliated without judicial proceedings being required and
without prejudice to the Landlord's other rights and recourses, and the Term of
this Lease will forthwith become forfeited, without diminishing or extinguishing
the liability of any guarantor or indemnifier. No payment or acceptance of
rental subsequent to such Event of Default will give the Tenant the right to
continue occupancy of the Leased Premises or in any way affect the rights of the
Landlord herein. If the Landlord at any time terminates this Lease for any
breach or by reason of the occurrence of an Event of Default or if any legal
action is taken for the recovery of possession of the Leased Premises or for the
recovery of possession of the Leased Premises, then the equivalent of six (6)
months instalments of Minimum Rent and Additional Rent will immediately become
due and payable as accelerated rent, and the Landlord may, in addition to any
other remedies it may have hereunder or by law, recover from the Tenant all
damages and all expenses it may incur or suffer by reason thereof, including,
without limitation, legal fees and legal costs and the cost of repossessing the
Leased Premises.
13.2 RE-ENTRY
Upon the occurrence of an Event of Default, the Landlord may, without notice to
the Tenant and without prejudice to any other right of the Landlord hereunder or
by law, enter and repossess the Leased Premises and it may use such force as it
may deem necessary for that purpose and for gaining admittance to the Leased
Premises and it may expel all persons and remove all property from the Leased
Premises, which property may be removed and sold or disposed of by the Landlord
as it deems advisable, or may be stored in a public warehouse or elsewhere at
the cost and for the account of the Tenant, the whole without the Landlord being
considered guilty or trespassing or becoming subject to any prosection or
becoming liable for any loss or damage which may be occasioned thereby, any
statute or law to the contrary notwithstanding.
13.3 RIGHT TO RE-LET
30
If the Landlord elects to repossess the Leased Premises as herein provided, or
if it takes possession pursuant to legal proceedings, or pursuant to any notice
provided for by law, it may either terminate this Lease or it may from time to
time, without terminating this Lease, make such alterations and repairs as may
be necessary in order to re-let the Leased Premises, and re-let the Leased
Premises or any part thereof, either in the name of the Landlord or otherwise
for a term or terms which may, if the Landlord chooses, be less or greater than
the balance of the Term and at such rent and upon such other terms and
conditions as the Landlord, in its sole discretion, deems advisable, and the
Landlord may grant reasonable concessions in connection therewith. Upon each
such re-letting all rent received by the Landlord from such re-letting shall be
applied firstly to the payment of any indebtedness, other than rent, due
hereunder from the Tenant to the Landlord, secondly to the payment of any costs
and expenses of such re-letting, including legal costs, legal fees and brokerage
fees and the expenses of keeping the Leased Premises in good order and of
preparing the Leased Premises for re-letting, thirdly to the payment of rent due
and unpaid hereunder, and the residue, if any, shall be held by the Landlord and
applied in payment of future rent as the same becomes due and payable hereunder.
If such rentals received from such re-letting during any month be less than that
paid during that month by the Tenant, the Tenant shall pay such deficiency to
the Landlord. Such deficiency shall be calculated and paid monthly. No such
taking possession of the Leased Premises by the Landlord shall be constituted as
an election on its part to terminate this Lease unless a written notice of such
intention in accordance with the present Section is given to the Tenant.
Notwithstanding any re-letting, without termination, in accordance with the
present Section, the Landlord may, at any time thereafter, elect to terminate
this Lease for a previous Event of Default.
13.4 APPLICATION OF MONEYS
All payments by the Tenant under the terms of this Lease, whether in respect of
Minimum Rent, may be applied or allocated by the Landlord towards the payment of
any other amounts due and payable by the Tenant to the Landlord at the date of
such payment, irrespective of the purpose for which such payment by the Tenant
was effected, the whole in such manner as the Landlord, in its sole discretion,
sees fit.
13.5 ABANDONED GOODS
Should the Tenant leave in or about the Leased Premises any moveable effects or
fixtures for more than eight (8) days after having abandoned or vacated the
Leased Premises or remitted the key therefor to the Landlord, and Landlord shall
have notified Tenant of the presence of such movable effects or fixtures and
Tenant has not reacted within a further period of eight (8) days, then the
Landlord shall, ipso facto without any notice being required, become the owner
of such moveable effects and fixtures and the Tenant shall have no claim in
damages, whether contractual or extra-contractual or otherwise, in connection
therewith and the Tenant shall hold the Landlord harmless and indemnified from
and against any claims or actions in connection therewith from whomsoever.
31
13.6 LANDLORD'S RIGHT TO CURE DEFAULTS
Without limiting the generality of any provision of this Lease, if the Tenant
defaults in the performance of any of its obligations under this Lease, the
Landlord may, from time to time, after giving ten (10) days notice (or without
notice in the case of an emergency) perform or cause to be performed any of such
obligations and for such purposes, may do such things as may be required,
including, without limitation, entering upon the Leased Premises and doing such
things upon or in respect of the Leased Premises or any part thereof as the
Landlord reasonably considers requisite or necessary. All expenses incurred
pursuant to this Section 13.6 plus a sum equal to fifteen percent (15%) thereof,
representing the Landlord's administrative costs shall be paid by the Tenant, as
Additional Rent, forthwith upon demand. The Landlord shall not be liable to the
Tenant for any loss or damage resulting from any such action or entry by the
Landlord and the same shall not be considered a breach of any obligation for
peaceable enjoyment contained in this Lease or implied by law.
13.7 REMEDIES GENERALLY
Mention in this Lease of any particular remedy or remedies of the Landlord in
respect of any default by the Tenant shall not preclude the Landlord from any
other remedy in respect thereof, including the right to specific performance of
any obligation of the Tenant under this Lease. No remedy shall be exclusive or
dependent upon any other remedy, but the Landlord may, from time to time,
exercise any one or more of such remedies simultaneously or in combination, such
remedies being cumulative and not alternative
13.8 SURRENDER OF LEASED PREMISES
Should the Landlord validly repossess the Leased Premises as a result of an
event of default, or validly terminate this Lease and should it give notice in
writing to the Tenant to that effect, the Tenant shall, within five (5) days
notice, remove all goods located in the Leased Premises, in default of which the
Tenant undertakes to pay the rent for the period during which its goods or goods
under its care remain in the Leased Premises and the Tenant shall pay an
Additional Rent equal to three (3) times the Minimum Rent until complete
surrender of the Leased Premises, the whole without prejudice to the Landlord's
other rights hereunder or by law.
ARTICLE XIV
ACCESS BY LANDLORD
14.1 RIGHT OF ENTRY
Upon twenty-four (24) hours prior notice, the Landlord and its agents have the
right to enter the Leased Premises at all reasonable times to show them to
prospective purchasers, lessees, the Hypothecary Creditor, insurers or their
representatives. During the twelve (12) months prior to
32
the expiration of the Term, the Landlord may place upon the Leased Premises the
usual notice "For Rent" or "For Sale" at any time which the Tenant must
tolerate, without damaging same. In the event the Tenant is not personally
present to open and permit an entry into the Leased Premises, at any time, when
for any reason under this Lease an entry therein is necessary or permissible,
and the Landlord has notified Tenant of same, if required, the Landlord or its
agents may forcibly enter the same, without rendering the Landlord or such
agents liable therefor, and without in any manner affecting the obligations
under this Lease.
14.2 EXCAVATION
If an excavation is made upon land adjacent to the Building, or is authorized to
be made by the Landlord, the Tenant will give to the person making the
excavation permission to enter upon the Building for the purpose of doing the
work that the Landlord considers necessary to preserve the wall of the Building
from injury or damage and to support it by proper foundation, without any claim
for damages or indemnification against the Landlord or diminution of rent. Any
work undertaken by or on behalf of the Landlord pursuant to this Section 14.2
shall not be considered a breach by the Landlord of its obligations, contained
in this Lease or implied by law, to provide peaceable enjoyment.
ARTICLE XV
SUBORDINATION ATTORNMENT AND STATUS STATEMENT BY TENANT
15.1 SUBORDINATION AND ATTORNMENT BY TENANT TO HYPOTHECARY CREDITOR
It is a condition of this Lease that it and all of the Tenant's rights hereunder
shall at all times be subject to and subordinate to the rights of each
Hypothecary Creditor, provided that each Hypothecary Creditor agrees that the
peaceful possession of the Leased Premises by Tenant shall not be disturbed as
long as Tenant is not in default hereunder. The Tenant shall, upon demand,
subordinate this Lease and all of its rights hereunder to the rights of each
Hypothecary Creditor, in such form as the Landlord may require, and, if
requested, the Tenant shall become the Tenant of each Hypothecary Creditor.
Whenever and under whatsoever circumstances ownership of the leased Premises
changes, the Tenant shall attorn to and become the tenant of the new owner of
the Leased Promises as if such new owner were the Landlord under this Lease and
the future obligations and liabilities of the Landlord hereunder shall then,
IPSO FACTO, cease and terminate, provided that the new owner has assumed all
future obligations of Landlord hereunder.
15.2 STATUS STATEMENT (ESTOPPEL CERTIFICATE)
At any time during the Term and within ten (10) days of the Landlord's request
therefor, the Tenant shall execute and deliver, as directed by and in the form
prepared by the Landlord to any person, a certificate or status statement
certifying among such other things as the Hypothecary
33
Creditor or any prospective purchaser of the Leased Premises or any part
thereof, from time to time, require:
15.2.1 that this Lease has been validly executed and delivered by the
Tenant pursuant to due corporate action properly taken by it;
15.2.2 that this Lease is unmodified and in full force and effect or,
if there have been modifications, that this Lease is in full
force and effect, as modified and identifying the modification
agreements;
15.2.3 the Commencement Date and the termination date;
15.2.4 the date to which Minimum Rent have been paid;
15.2.5 that there is no existing default by the Tenant in the payment
of any Minimum Rent under this Lease and that there is no
other existing or alleged default by either party under this
Lease and if there is any such default, specifying the nature
and extent thereof;
15.2.6 that no rent has been paid more than thirty (30) days in
advance of its due date;
15.2.7 that the Tenant has accepted and is in possession of and is
occupying the Leased Premises;
15.2.8 that the Landlord's work, as provided in Schedule "C" hereto,
has been completed to the satisfaction of the Tenant; and
15.2.9 whether there are any set-offs, defenses or counter-claims
against the enforcement of the obligations to be performed by
the Tenant under this Lease.
ARTICLE XVI
MISCELLANEOUS
16.1 NO TACIT RENEWAL
Notwithstanding the Civil Code, there shall be no tacit renewal of this Lease.
Should the Tenant remain in possession of the Leased Premises after the
expiration of the Term without the written consent of the Landlord, such
continued occupation shall be at a monthly rate payable in advance equal to one
and a half (1-1/2) times the aggregate of the monthly instalment of Minimum Rent
and Additional Rent payable for the last month of the Term and shall be without
prejudice to the Landlord's right to re-enter and take possession of the Leased
Premises and remove the Tenant
34
therefrom, without notice or indemnity to the Tenant, and without prejudice to
the Landlord's other recourses hereunder or by law.
16.2 ACCORD AND SATISFACTION
No payment by the Tenant or receipt by the Landlord of a lesser amount than the
monthly payment of Minimum Rent herein stipulated is deemed to be other than on
account of the earliest stipulated Minimum Rent, nor is any endorsement or
statement on any cheque or any letter accompanying any cheque or payment as rent
deemed an acknowledgment of full payment or an accord and satisfaction, and the
Landlord may accept and cash such cheque or payment without prejudice to the
Landlord's right to recover the balance of such rent or pursue any other remedy
provided in this Lease or by law.
16.3 ENTIRE AGREEMENT
This Lease together with the schedules referred to herein and the reasonable
Rules and Regulations adopted and promulgated by the Landlord pursuant to the
provisions hereof set forth the entire agreement and understanding between the
parties concerning the Leased Premises, and the Tenant acknowledges that there
have been no promises, representations, agreements, conditions or
understandings, either oral or written, express or implied, collateral or
otherwise, between the Landlord and the Tenant other than as herein set forth.
Except as otherwise expressly provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon the Landlord or the
Tenant unless in writing and duly signed by the Tenant and the Landlord.
16.4 WAIVER
The waiver by the Landlord of any breach of any term, obligation or condition
herein contained is not deemed to be a waiver of such term, obligations or
condition or of a subsequent breach of the same or of any other term, obligation
or condition herein contained. The subsequent acceptance of rent by the Landlord
will not be deemed to be a waiver of any preceding breach by the Tenant of any
term, obligation or condition of this Lease, regardless of the Landlord's
knowledge of the preceding breach at the time of acceptance of the rent. No
obligation, term or condition of this Lease will be deemed to have been waived
by the Landlord unless the waiver is in writing, signed by the Landlord. All
Minimum Rent to be paid by the Tenant to the Landlord hereunder shall be paid
without any deduction, abatement, set-off or compensation whatsoever and the
Tenant hereby waives the benefit of any statutory or other rights in respect of
abatement, set-off or compensation which could exist in its favour at the
present time hereof or at any future time.
16.5 NO PARTNERSHIP
The Landlord shall not, in any way, or for any purpose, become a partner of the
Tenant in the conduct of its business or otherwise, or a joint venturer or a
member of a joint enterprise with the
35
Tenant. The provisions of this Lease payable hereunder are included solely for
the purpose of providing a method whereby the rent is to be measured and
ascertained, and neither the method of computation of rent nor any other
provision contained herein, nor any acts of the parties hereto shall create a
relationship between the parties other than that of landlord and tenant.
16.6 FORCE MAJEURE
Notwithstanding anything to the contrary contained in this Lease, if either
party hereto is BONA FIDE delayed or hindered in, or prevented from, the
performance of any term, obligation or act required hereunder by reason of
strikes, lock-outs, labour troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots, insurrection, war,
act of God or other reason of a like nature or not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then performance of the act will be excused for the period of the delay and the
period for the performance of the act will be extended for a period equivalent
to the period of the delay. The provisions of this Section 16.6 do not cancel or
postpone or delay the due date of any payment to be made by the Tenant
hereunder, or operate to excuse the Tenant from the prompt payment of Minimum
Rent or other payments required by the terms of this Lease.
16.7 NOTICE
Any notice, demand, request or other instrument which may be or is required to
be given under this Lease shall be delivered in person or sent by registered
mail postage prepaid and shall be addressed:
16.7.1 if to the Landlord: at the address set forth in Section IX (i)
of the Preamble:
16.7.2 if to the Tenant at the Leased Premises or, at the Landlord's
option, to the Tenant's head office at the address set forth
in Section VIII(ii) of the Preamble.
Any such notice, demand, request or other instrument shall be conclusively
deemed to have been given or made on the day upon which such notice, demand,
request or other instrument was delivered or, if mailed, then on the fifth (5th)
business day following the date of mailing (provided at such time no postal
strike is in progress or has been publicly announced), as the case may be.
Either party may at any time give notice to the other of any change of address
of the party giving such notice and from and after the giving of such the
address therein specified is deemed to be the address of such party for the
giving notices hereunder.
16.8 GOVERNING LAW AND SEVERABILITY
This Lease will be interpreted and governed by the laws of the Province of
Quebec. If for any reason whatsoever any provision or any part of any provision
of this Lease, or the application thereof to any person or circumstance, is to
any extent held or rendered in valid, unenforceable or
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illegal, then such provision or part in question shall be deemed to be
independent, severable and divisible from the remainder of the Lease and its
invalidity, unenforceability or illegality shall not affect, impair or
invalidate the remainder of the Lease or any part thereof and such provision or
partial provision shall continue to be applicable to and enforceable against any
other person or circumstance other than those to which it has been held or
rendered invalid, unenforceable or illegal.
16.9 REGISTRATION
The parties hereto hereby agree not to register this Lease without the prior
written consent of the Landlord; only a summary of this Lease (the "Summarized
Lease") prepared by Landlord's attorneys, excluding the financial consideration
of this Lease, may, at the written request of the Tenant and then only after
receiving the prior written consent of the Landlord to such Summarized lease, be
executed by the parties, for purposes of registration only. The inscription
shall include an extreme date equivalent to the Term of this Lease. In any and
all respects, this Lease shall govern and supersede any provision of such
Summarized Lease. Upon the termination of this Lease, the Tenant shall radiate
at its expense the registration of such Summarized Lease, the Tenant hereby
expressly and irrevocably appointing the Landlord as attorney for the Tenant
with full power and authority to radiate such inscription and to execute and
deliver in the name of the Tenant any instruments or certificates required for
such purpose. The Tenant hereby undertakes to forthwith sign and deliver to the
Landlord any further power of attorney or document which the Landlord may
request to confirm the foregoing.
16.10 SUCCESSORS AND ASSIGNS
All rights and liabilities herein granted to or imposed upon the respective
parties hereto extend to and bind the successors and assigns of the Landlord and
the heirs, executors, administrators and permitted successors and assigns of the
Tenant, as the case may be. No right, however, shall enure to the benefit of any
assignee or successor of the Tenant unless such successor or the assignment to
such assignee has been approved by the Landlord in writing as provided in
Article XII of these presents.
16.11 SECURITY DEPOSIT
Concurrently with the execution of this Lease, the Tenant has deposited with the
Landlord the sum set forth in Section IX of the Preamble. The said deposit is
given by the Tenant as security for the due performance by the Tenant of all the
terms, obligations and conditions herein to be respectively paid, observed and
performed by the Tenant. If the Tenant shall breach any of such terms, covenants
and conditions, the Landlord may, at its option, appropriate and apply the said
deposit, or so much thereof as may be necessary, as full or partial compensation
to the Landlord for loss or damage suffered or sustained by the Landlord arising
out of or in connection with such breach by the Tenant. The Tenant upon demand
shall forthwith pay to the Landlord an amount sufficient to restore the deposit
to the original sum required to be deposited. In the event of
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bankruptcy or other creditor-debtor proceedings against the Tenant, such
security deposit shall be applied first to the payment of rent and other sums
due to the Landlord under the terms of this Lease and will be deemed to have
been applied no later than the day prior to the bankruptcy or the institution of
such other debtor/creditor proceedings. Within thirty (30) days of the
termination of this Lease, such security deposit, or so much thereof as shall
then remain in the Landlord's hands, shall be returned, without interest, to the
Tenant. In the event of a sale, transfer or assignment of this Lease by the
Landlord, the Landlord may transfer such security deposit or so much thereof as
shall then remain to the purchaser, transferee or assignee and thereupon the
Landlord shall be free and discharged from any further liability in connection
with such security deposit.
16.12 QUALIFICATION TO DO BUSINESS
The Tenant represents to the Landlord that it has obtained or shall, prior to
the opening of the Leased premises or any part thereof for business, have
obtained any necessary licences and permits to carry on business in the Province
of Quebec and shall, throughout the Term, maintain same in good standing. Upon
request of the Landlord, the Tenant shall from time to time promptly provide the
Landlord with evidence satisfactory to the Landlord and its solicitors of the
status of any such licence or permit.
16.13 NON-CANADIAN PERSON
The Tenant represents to the Landlord that it is not a non-Canadian person
within the meaning of the Investment Canada Act (Bill C-15).
16.14 WAIVER
The Tenant hereby waives any rights it may have in virtue of articles 1859,
1861, 1862, the second paragraph of article 1863, the second and third
paragraphs of article 1865 and, article 1867 of the Civil Code of Quebec.
Except as otherwise expressly permitted in this Lease, the Tenant hereby also
waives any right to compensation for sums which the Tenant may owe under this
Lease as well as any right to claim sums presently owing to it or which may
become owing to it by the Landlord and the Tenant agrees to pay the rent as well
as any sum due under this Lease, notwithstanding the existence of one or several
claims which it may have against the Landlord.
16.15 WAIVER OF LIABILITY
Notwithstanding any law, usage or custom to the contrary, the Landlord shall not
be liable to the Tenant for damages resulting from the act of a third person,
except such third person for whom the Landlord is responsible in law, including
other tenants in the Leased Premises, and the Tenant hereby expressly renounces
to any right or recourse it may have against the Landlord, as a
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result of such act, and, without limiting the generality of the foregoing, the
Tenant renounces to and waives its right to obtain a reduction of rent,
cancellation of the Lease or damages.
16.16 PEACEABLE ENJOYMENT
So long as the Tenant pays the Minimum Rent, Additional Rent and other sums
herein provided, and observes and performs all of the terms, obligations and
conditions on the Tenant's part to be observed and performed under this Lease,
the Tenant shall have peaceable enjoyment of the Leased Premises during the
Term, without hindrance or interruption by the Landlord or any other person
lawfully claiming by, through or under the Landlord, subject, nevertheless, to
the terms, obligations and conditions of this Lease.
16.17 INTEREST ON OVERDUE PAYMENTS
The Tenant shall pay to the Landlord interest on all overdue Minimum Rent and
Additional Rent at a per annum aggregate rate equal to the prime rate of
interest from time to time charged by any Canadian chartered bank determined by
the Landlord to its prime commercial borrowers, plus two percent (2%), such rate
to be compounded monthly. Such interest shall be calculated from the due date
until payment is made, the whole without the necessity of any demand being made
therefor.
16.18 BROKERAGE COMMISSION
The Tenant hereby warrants and represents that any brokerage commission with
respect to this Lease or the transaction contemplated herein shall be borne
exclusively by the Tenant and the Tenant shall indemnity and hold harmless the
Landlord from any and all claims with respect thereto.
16.19 HEADINGS AND NUMBERS
The headings, captions, section numbers, article numbers and table of contents
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of this Lease nor in
any way affect this Lease.
16.20 INTERPRETATION
The words "hereof", "herein", "hereunder" and similar expressions used in any
Section or SubSection of this Lease relate to the whole of this Lease and not to
that Section or Sub-Section only, unless otherwise expressly provided. Where
required by the context hereof the singular shall include the plural and the
neuter gender, the masculine or feminine.
16.21 FINANCIAL INFORMATION
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The Tenant shall, upon request and without undue delay, provide the Landlord
with such public information as to the Tenant's financial standing and corporate
organization as the Landlord or the Hypothecary Creditor requires and the
Landlord agrees to strictly maintain the confidentiality of said information and
only to release the same to the Hypothecary Creditor or other person having an
interest or potential interest in the Leased Promises.
16.22 HYPOTHECARY CREDITOR CHANGES
If the Hypothecary Creditor requires reasonable changes to this Lease, the
Tenant shall execute such documents or other instruments necessary to give
effect to such changes, provided no such change shall affect the Term, the
Leased Premises, the Gross Leasable Area of the Leased Premises or any Minimum
Rent payable hereunder.
16.23 SOLIDARY LIABILITY
In the event that the Lease is signed by more than one person, these persons
shall be solidarily liable for the execution of the obligations of this Lease
and they hereby waive the benefit of subrogation.
16.24 ELECTION OF DOMICILE
The parties herein hereby elect domicile in the District of Montreal, where any
and all legal proceedings by either party against the other shall be instituted.
16.25 LANGUAGE
The parties acknowledge having expressly required that this Lease and all
documents relating thereto be drawn in English.
Les parties declarent avoir expressement requis que ce Bail et tous les
documents s'y rapportant soient rediges en anglais.
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IN WITNESS WHEREOF the parties hereto have executed this Lease as of the date
first above- written.
LANDLORD:
AMENAGEMENTS ROVO INC.
Per: /s/ Norman Zavalkoff
- ----------------------------- ------------------------------
Witness Norman Zavalkoff
TENANT:
PHOENIX INTERNATIONAL LIFE SCIENCES
INC.
Per: /s/ Jean-Vyes Caloz
- ------------------------------- ---------------------------------
Per:
- ------------------------------- ---------------------------------
Witness
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SCHEDULE "A"
DESCRIPTION OF LAND
SCHEDULE "B"
SITE PLAN OF LEASED PREMISES
SCHEDULE "C"
LANDLORD'S AND TENANT'S WORK
SCHEDULE "D"
OPERATING EXPENSES
SCHEDULE "E"
PRE-AUTHORIZED PAYMENT PLAN
SCHEDULE "F"
BUILDING MODIFICATION PLANS
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