MEMORANDUM OF AGREEMENT OF LEASE ENTERED INTO AT THE CITY AND
DISTRICT OF MONTREAL IN THE PROVINCE OF QUEBEC AS OF THE THIRD (3rd)
DAY OF MARCH 1995.
BY AND BETWEEN:
LIBERTY SITES LTD, a body politic and corporate duly incorporated according to
law and having its head office at 1450 St. Amour Street, in the City and
District of St. Laurent, Province of Quebec, H4S 1J3, herein acting and
represented by Sandra Levy, duly authorized for the purposes of the present
Agreement.
(hereinafter referred to as the "Landlord")
AND
PHOENIX INTERNATIONAL LIFE SCIENCES INC, a body politic and corporate duly
incorporated according to law and having its head office at 4625 Dobrin Street
in the City and District of Saint-Laurent, Province of Quebec, H4R 2P7, herein
acting and represented by Jean- Yves Caloz, duly authorized for the purposes of
the present Agreement in virtue of a resolution of its Board of Directors, a
certified copy of which remains annexed hereto.
(hereinafter referred to as the "Tenant")
1. DESCRIPTION AND LEASE OF PREMISES
Landlord, in consideration of the rents, covenants and agreements
hereinafter contained on the part of the Tenant to be paid, kept and
performed, hereby leases to Tenant and Tenant does hereby accept from
the Landlord that certain part of the building located at 4850 Dobrin
and 4901 Levy streets, in the City of Saint-Laurent (the "Building"),
having an office and a warehouse area, of approximately seventy
thousand nine hundred and eighty (70,980) square feet, the whole as
will be determined and certified by the Landlord's architect in
accordance with BOMA Standards, and as outlined in red on the floor
plans attached hereto as Schedule "A", (hereinafter referred to as
either the "Leased Premises" or the "Premises") and an outside loading
and trucking area, and exterior parking areas of approximately one
hundred and sixty (160) spaces for Tenant employee and visitor
vehicles, the whole as shown in yellow on Schedule "B" attached hereto
(but which may change from time to time, subject to the reasonable
approval of the parties), together with any landspaced areas in front
of the Leased Premises, and the right to use with others the driveways
to access the Leased Premises (the said Building and land hereinafter
referred to as the "Property" as outlined in Schedule "A" attached
hereto).
2. TERM OF LEASE
The Term of this lease shall be for a period of fifteen (15) years to
be computed from the first (1st) day of July 1995 (the "Commencement
Date") and to terminate on June 30, 2010 (the "Term").
The Tenant shall have the right to occupy the Premises as of the
signing of this Lease save and except the premises presently occupied
by CIBC, outlined in blue on Schedule "A", and to begin to build the
Tenant's Work (as those words are defined in Section 21 hereof) in the
whole of the Leased Premises except the premises occupied by CIBC. As
soon as CIBC vacates its present location, which is expected to be on
or about May 1, 1995 the Tenant shall be able to occupy that part of
the Premises. The Landlord undertakes to use its best effort to have
CIBC vacate their premises on or about May 1, 1995. The Tenant shall be
bound during the period from the date of occupancy until the
Commencement Date by all the provisions of this Lease and, without
limiting the generality of the foregoing, the Tenant shall be liable
for any and all damages caused by its actions or omission or those of
its contractors, subcontractors, agents and employees. During this
period, the Tenant shall be responsible to pay for all electricity and
other utility costs and all special services provided by third parties
whether or not arranged for by the Landlord.
3. USE OF PROPERTY
The Leased Premises shall be used in a first class and reputable manner
solely to carry out pharmaceutical research as well as any use in
connection therewith and for no other purpose.
4. NET LEASE
It is the intention of the parties that the Minimum Net Rental set out
in Section 5 of this lease shall be absolutely net to the Landlord and
that the Tenant shall pay for its own account, to the complete
exoneration of the Landlord, all costs and expenses affecting the
Leased Premises or the business carried on therein, and its
proportionate share of all Property Taxes and Costs as hereinafter
defined, except as is otherwise provided in this lease.
Furthermore, any amount and any obligation which is not expressly
declared herein to be that of the Landlord pertaining to the Premises
shall be deemed to be an obligation of the Tenant and/or at the expense
of the Tenant.
5. NET RENTAL
During the term of the lease, the Tenant shall pay the Landlord the
following minimum net rental (the "Minimum Net Rental"):
(a) Nine Dollars and Fifty Cents ($9.50) per square foot per year
during the first five (5) years of the Term; and
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(b) Thirteen Dollars and Forty Cents ($13.40) per square foot per
year during years six (6) through ten (10) inclusively; and
(c) Eleven Dollars and Fifty Cents ($11.50) per square foot per
year during years eleven (11) through fifteen (15)
inclusively;
each payable in equal monthly instalments in advance on the first day
of each month.
The Minimum Net Rental as herein provided shall be paid to the Landlord
and/or its nominee at the Head Office of the Landlord in the City of
Saint-Laurent, at 1450 St. Amour Street, in the Province of Quebec, or
at such other place in Canada as shall be designated by the Landlord in
writing to the Tenant.
Notwithstanding the above, the Tenant shall not have to pay any Minimum
Net Rental during the first year of the Term. It shall, nevertheless,
pay all Additional Rental and the cost of all electricity and utilities
consumed in the Premises as of the Commencement Date of the Term.
6. ADDITIONAL RENTAL
In this lease, unless there is something in the context inconsistent
herewith, the parties agree that "Additional Rental" means any and all
amounts due or becoming payable to the Landlord pursuant to this lease
other than the Minimum Net Rental, whether such amounts are
specifically referred to as Additional Rental or not.
It is agreed and understood that such amounts other than Proportionate
Expense Rental (as hereinafter defined) and any other amounts for which
a specific payment date is provided for in this lease, whether
specifically referred to as Additional Rent or not, shall be payable on
the first day of the month immediately following the date the said
amount is claimed, or such other date that Landlord designates.
7. PROPORTIONATE EXPENSE RENTAL
The Tenant shall pay without duplication as Additional Rental in each
lease year, its proportionate share of all Property Taxes and Costs,
reasonable expenses and disbursements incurred by the Landlord or on
its behalf to operate, clean, maintain and repair the Property
(hereinafter referred to as "Proportionate Expense Rental") which
include without limitation:
(a) The total cost of insuring the Property (including such
insurance as the Landlord shall, acting reasonably, effect or
shall be required to effect by any secured creditor) against
fire and any other perils which presently are or hereafter may
be from time to time embraced by or defined in a standard fire
insurance policy with
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extended coverage, comprehensive general liability insurance,
boiler and pressure vessel insurance, business interruption
and/or loss of rentals insurance equal to at least (1) one
year's Minimum Net Rental and Proportionate Expense Rental,
and such other insurance as the Landlord, acting reasonably
may deem necessary or advisable.
(b) The cost of cleaning, sweeping, snow removal, gardening and
landscaping maintaining and operating the Property.
(c) The part of such costs reasonably allocated to the Property
with respect to seeing to the security of the Trans Canada
Business Park.
(d) The cost of repairs and replacements to (including major
repairs and structural repairs and replacements but excluding
repairs due to structural defects which relate to the state of
the Building prior to the Tenant's Work (as those words are
defined hereinafter)), and maintenance of the building and
improvements of the Property and their appurtenances and
equipment including the common areas and facilities.
(e) Remuneration, including contributions toward usual fringe
benefits, unemployment insurance and similar contributions,
of employees engaged in maintaining, operating and
supervising the Property, it being agreed and understood
that where employees are not employed on site on a full time
basis, there shall be attributed to the Property only such
sums as are the product obtained by multiplying the
aforementioned remuneration and contributions by a fraction,
the numerator of which is the average time per week that the
employee spends working on the Property on site and the
denominator of which is the average number of hours that
such employee spends each week working for the Landlord.
(f) The Taxes on Capital as defined hereinafter. "Taxes on
Capital" means an amount imputed by the Landlord acting
reasonably to the Property in respect of taxes, rates, duties
and assessments presently or hereafter levied, rated, charged
or assessed from time to time upon the Landlord and payable by
the Landlord to the Government of Canada and to the Province
of Quebec on account of its capital. Capital Taxes shall be
imputed on the basis of the Landlord's determination of the
amount of capital attributable to the Property, which shall be
based on the original capital cost of the Building together
with the cost of any improvements made to it paid by the
Landlord together with the book value of the Land at the
moment of the determination by the Landlord of the amount of
capital attributable to the Property. Capital Taxes also means
the amount of any capital or place of business tax levied by
any government or other applicable taxing authority against
the
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Landlord with respect to the Property whether known as Capital
Taxes or by any other name.
(g) All Montreal Urban Community, municipal, school, special taxes
and taxes and surtaxes on non-residential immovables, for the
Property on which the Leased Premises are situated and any
other taxes assessed against the building and/or land during
the Term of the lease (hereinafter collectively called "Real
Estate Taxes").
Should the mode of collecting business taxes, water taxes or
other assessments be such that the Landlord shall be required
to pay for same, or if the system of Real Estate Taxes shall
be altered or varied and any new tax or levy shall be levied
or imposed on the building and/or land and/or the revenues
there from and/or the Landlord in substitution for and/or in
addition to Real Estate Taxes presently levied or imposed on
immovables in the City of Ville St.Laurent or Montreal Urban
Community in which the property is situated, then any such new
tax or levy shall be included within the definition of Real
Estate Taxes as contained in this section and the provisions
of this section shall apply mutatis mutandis.
For greater certainty, the Surtax and the Tax on
Non-Residential Immovables will be recoverable from the Tenant
on the same basis as Real Estate Taxes, that is, on its
proportionate share basis, notwithstanding any percentage
entered on the schedule to the real estate assessment roll for
the Property or any omissions or errors in same.
The benefit of any reduction in Real Estate Taxes obtained
because of any vacancy in the Building during the previous
fiscal year, if any, will remain with the Landlord and shall
not be shared with the tenants of the Building.
(h) Administrative cost equal to fifteen percent (15%) of all
costs and expenses incurred by the Landlord with respect to
paragraphs (a) to (g) inclusively of this Section 7, less the
exclusions hereinafter provided for.
Notwithstanding the above, the Tenant shall not be required to pay any
of the following costs:
(a) interest and principal payments on outstanding financing of
the Landlord and any other debt costs of the Landlord;
(b) costs or expenses incurred with respect to the acquisition,
development, construction or furnishing of the Building prior
to the commencement of Tenant's Work (as those words are
defined hereinafter);
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(c) costs of repairs done by the Landlord and for which the
Landlord has been or is to be reimbursed, either as a result
of an insurance claim or otherwise;
(d) costs of structural repairs which relate to the state of the
Building prior to the Tenant's Work (as those words are
defined hereinafter);
(e) commissions, fees and all other expenses incurred in
connection with marketing or leasing the Premises or any part
thereof;
(f) any amount paid as a fine or a penalty as result of a
violation of a violation of law (provided such violation of
law was not caused by or contributed to by the Tenant);
(g) income, business and corporate taxes and other personal taxes
to the Landlord (other than capital taxes and large
corporation taxes);
(h) the amount of any sales tax, goods and services tax,
value-added tax or any similar tax ("Sales Tax") paid or
payable by the Landlord on the purchase of goods and services
included in Additional Rent which may be available to the
Landlord as a credit in determining the Landlord's net tax
liability or refund on account of Sales Tax, but only to the
extent Sales Tax is included in Additional Rent;
(i) the cost of any insurance premiums relating to risks or
amounts which are not normally insured against by reasonably
prudent owners of similar buildings;
(j) operating costs which are recoverable from insurance proceeds
or which would be recoverable assuming compliance by the
Landlord with its insurance obligations;
(k) costs covered by warranties or guarantee; and
(l) any cost which would otherwise be included in the Additional
Rent but consists of an amount paid to a corporate affiliate,
parent or subsidiary of the Landlord to the extent such amount
is in excess of the fair market value of the said item or
service where the expense is incurred in an arm's length
transaction.
Notwithstanding anything else contained herein, all Additional Rent
shall be calculated without duplication or profit to the Landlord and
in accordance with generally accepted accounting principles.
In the event that there are separate assessments and tax bills for the
Leased Premises (including but not limited to all licence fees,
charges, rates assessed against the Leased Premises and/or all
equipment and facilities thereon or therein, and every tax and licence
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fee in respect of any and every business carried on therein, or in
respect of the occupancy of the Leased Premises by the Tenant), the
Tenant shall pay to the taxing authority and discharge same, and
discharge in each lease year during the Term and within the times
provided for by the taxing authority all taxes so levied, the Tenant
shall provide the Landlord within thirty (30) days after receipt with a
copy of any separate tax bills and assessments for the Leased Premises
and shall promptly deliver to the Landlord receipts evidencing the
payment of such taxes.
The Tenant shall pay to the Landlord as Additional Rental its
Proportionate Share of any expenses, including, without limitation,
legal and appraisal expenses incurred by the Landlord in obtaining or
attempting to obtain a reduction of or to prevent an increase of any
Real Estate Taxes. The Landlord shall act as a prudent and reasonable
Landlord when exercising its discretion to contest Real Estate Taxes.
Should the Tenant request that the Landlord contest Real Estate Taxes,
the Landlord agrees to cooperate with the Tenant.
The Tenant's Proportionate Share shall be the proportion that the gross
floor area of the Leased Premises bears to the gross leasable floor
area of the building wherein the Leased Premises are situated. The
Tenant's proportionate share can be adjusted, however, by the Landlord
in terms of Real Estate Taxes and capital taxes, to take into
consideration the value of the improvements made to the Premises or the
number of parking spaces used by the Tenant, the whole to be calculated
by the Landlord in an equitable and fair manner to the Landlord and to
the Tenant and provided the Landlord does not recover more than one
hundred percent (100%) of such expenditures.
The amount payable by the Tenant under the provisions of this section
shall be reasonably estimated by the Landlord in advance for each
calendar year. The Tenant agrees to pay to the Landlord such amount in
equal, monthly instalments in advance, during such period together with
the Minimum Net Rental provided for in Section 6. Within a reasonable
period of time after the end of the period for which such estimated
payments have been made, the Landlord shall send the Tenant a statement
showing the actual amount required to be paid under the provisions of
this Section. Overpayments or underpayments shall be adjusted within
thirty (30) days after the delivery of the Landlord's statement.
Should the first year of the Term not commence on the first day of
January, or should the last year of the Term not terminate on the
thirty-first day of December, then, prior to the commencement of the
Term, or of the last year of the Term, as the case may be, or as soon
thereafter as is reasonably possible, the Landlord shall furnish to the
Tenant a reasonable estimate of the charges for the part of the year in
question and the Tenant shall pay to the Landlord on the first day of
each month in advance during the part of the year in question forming
part of the Term, Additional Rental equal to the portion of the
estimated charges divided by the number of months during the part of
the year in question.
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Any capital expenditures incurred by the Landlord will be amortized
over the useful life of the expenditure in question.
8. UTILITIES AND EQUIPMENT
The Tenant shall promptly pay for its electricity (including without
limitation any electricity used for heating and/or air conditioning the
Leased Premises), for the cost of operating, repairing, maintaining and
replacing the machinery and other facilities required for the heating,
ventilating and air conditioning of the Leased Premises and facilities,
and gas, water, sewer and electric utility costs relating to same,
telephone and all public utilities with respect to the Leased Premises.
Throughout the Term of the lease, the Tenant shall engage a qualified
air conditioning maintenance contractor to maintain and repair the
heating, ventilating and air conditioning system. The Tenant shall
provide the Landlord with a copy of a duly executed heating,
ventilating and air conditioning maintenance and repair contract, as
well as all renewals of said contract as soon as same are signed.
9. SUBLETTING AND ASSIGNMENT
Subject to the provisions hereinafter detailed, the Tenant shall not
have the right to sublet the Premises or any part thereof, or assign
its rights in the present lease, or allow the Premises or any part
thereof to be used by another, nor hypothecate or encumber this lease
or the Premises or any part thereof, without the prior written consent
of the Landlord, which consent may not be unreasonably withheld.
Notwithstanding the foregoing, the Tenant shall have the right to
assign or transfer the Lease or sublet the Premises without the prior
written approval of the Landlord if such assignment or sublet is to a
corporation associated (as such terms are defined in the Canada
Business Corporations Act) with the Tenant, provided such subtenant or
assignee carries on the same use of the Leased Premises authorized
herein. Notwithstanding such subletting and assignment, or permitted
use by another, the Tenant shall remain jointly and severally liable
with such sub-lessee, assignee or user, for the performance of all the
terms and conditions of the present lease, for the residue of the
lease, or any renewal thereof.
If the Tenant wishes to so sublet or assign it must provide the name of
the prospective sublessee or assignee together with such other
reasonable information as Landlord shall require together with a
request for consent of the Landlord at least thirty (30) days prior to
the effective date of the proposed transfer or assignment and the
Landlord shall have twenty-one (21) days from receipt of a registered
letter or courier from the Tenant to send a notice to the Tenant
withholding its consent to said sublet or assignment, together with the
basis for such refusal, failing which Landlord shall be deemed to have
given its consent.
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Any document or consent evidencing any assignment of this lease or any
sublet of the Leased Premises if permitted or consented to by the
Landlord shall be prepared by the Landlord or its attorneys and all
reasonable legal costs with respect thereto shall be paid by the Tenant
to the Landlord forthwith upon demand as Additional Rent.
10. EXPROPRIATION
If the whole or a substantial portion of the Property be condemned,
expropriated or taken in any manner for any public or quasi-public use
or purpose such that it is no longer feasible for the Landlord to
continue to operate the Property, then Landlord may at its option
terminate this lease provided such termination shall not affect
Tenant's right of action or the amount claimed pursuant to its right of
action against the expropriating authority by giving notice in writing
to Tenant that the Term hereof shall expire upon the day when
possession is required for such purpose and in the event of such
expiration Landlord shall have no liability to Tenant of any nature.
11. INSPECTION AND REPAIR
Subject to the requirements of Tenant's activities in the Premises,
Landlord and its agent shall have, upon a prior twenty-four (24) hour
notice (except in an emergency), the right at all reasonable hours
during the Term of this lease and any renewals thereof to enter the
Leased Premises to examine the condition thereof and to ascertain
whether Tenant is performing its obligations hereunder, and Tenant
shall make any repairs which Tenant is obliged to make pursuant to the
terms of this lease. If Tenant fails to make any such repairs within
thirty (30) days after written notice from Landlord requesting Tenant
to do so, provided that such repairs may reasonably be made within the
said period. If the Tenant fails to carry out the repairs within the
appropriate delay Landlord may, without prejudice to any other rights
or remedies it may have, make such repairs and charge the cost thereof
to Tenant, plus an administrative fee of fifteen percent (15%) for
doing so, which shall be charged to Tenant as additional rent. Nothing
in this lease shall be construed to obligate or require Landlord to
make any repairs for which the Tenant is responsible hereunder, but
Landlord shall have the right at any time to make emergency repairs
without prior notice to Tenant and, provided same are the
responsibility of Tenant hereunder, charge the cost thereof to Tenant,
plus an administrative fee of fifteen percent (15%) for doing so, which
shall be charged to Tenant as additional rent. Any costs chargeable to
Tenant hereunder shall be payable forthwith on written demand as
Additional Rental.
12. OBSTRUCTIONS
The sidewalks, entries, passage corridors, and stairways shall not be
obstructed by the Tenant, its officers, agents, servants, employees, or
customers or used for any other purposes than for ingress and egress to
or from the Leased Premises, and the Tenant shall
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save the Landlord harmless from damages to persons or Property because,
of any nuisance or other act which obstruct the free movements of
persons to, in and from the building and Property.
13. EXPIRATION OF LEASE
The present lease shall terminate ipso facto and without notice or
demand on the date stated in Section 2 hereof and any continued
occupation of the Premises by Tenant shall not have the effect of
extending the period or of renewing the present lease for any period of
time, the whole notwithstanding any provisions of law and Tenant shall
be presumed to occupy the Premises against the will of Landlord who
shall thereupon be entitled to make use of any and all remedies by law
providing for the expulsion of Tenant and for damages, provided,
however, that Landlord shall have the right at its option in the event
of such continued occupation by Tenant to give to Tenant at any time
written notice that Tenant may continue to occupy the Premises under a
tenancy from month to month in consideration of a net rental one and a
half (1.5) times the monthly Minimum Net Rentals that was payable
during the year immediately preceding the expiry date of this lease,
payable monthly and in advance and otherwise under the same terms and
conditions as are herein set forth.
The Tenant shall, at the expiration or sooner termination of the Term
of this lease, peaceably surrender with all additions, alterations,
changes or installations which at any time during the Tenn hereof shall
be made therein or thereon, in good repair and condition, subject to
reasonable wear and tear and damage by fire, lightening, tempest,
structural weakness or defect, Acts of God, civil commotion, right and
insurrection, cause beyond the control of the Tenant and damage for
which Landlord is insured or damage for which a prudent Landlord would
be insured and those repairs which are the responsibility of the
Landlord pursuant to the terms hereof only.
Notwithstanding the foregoing, the Tenant shall at or prior to the
expiration of the Term hereof remove its movable effects and/or
articles belonging to or brought upon the Leased Premises by Tenant and
the Tenant shall repair any damages caused by such removal. The Tenant
must forthwith remove, at Tenant's expense, all its alterations or
improvements to the Leased Premises upon the written request of
Landlord, unless the Landlord prefers that the whole or any part of
such alterations or installations excluding movable effects and/or
movable articles should remain, without any compensation whatsoever
being allowed to the Tenant for same. At the expiration or sooner
termination of the Term of this lease, Landlord shall have the right,
at Tenant's expense, plus an administrative fee of fifteen percent
(15%) for doing so, which shall be charged to Tenant as additional
rent, to repair any damages caused by the Tenant or those for whom it
is responsible in law to the Leased Premises and not repaired by
Tenant, the whole subject to reasonable wear and tear and damage by
fire, lightening, tempest, structural weakness or defect, Acts of God,
civil commotion, right and insurrection, causes beyond
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the control of the Tenant and damage for which Landlord is insured or
damage for which a prudent Landlord would be insured and those repairs
which are the responsibility of the Landlord pursuant to the terms
hereof. Furthermore, Landlord shall have the right at Tenant's expense
plus an administrative fee of fifteen percent (15%) for doing so, to
remove any signage that Tenant may have left on the Building and to
repair any damages caused by such removal and to restore the Building
to its condition at the commencement of this Lease subject to
reasonable wear and tear and damage by fire, lightening, tempest,
structural weakness or defect, Acts of God, civil commotion, rights and
insurrections, causes beyond the control of the Tenant and damage for
which Landlord is insured or damage for which a prudent Landlord would
be insured and those repairs which are the responsibility of the
Landlord pursuant to the terms hereof.
Notwithstanding the foregoing, the Tenant shall not have to remove the
second floor of the Leased Premises, any structural reinforcement
thereto, the freight elevator and its machine room. exterior walls and
windows.
14. PLATE GLASS AND DOOR SIGNS
Any breakage of glass or plate glass in or about the Leased Premises
and any damage to signs on Tenant's doors, which are not caused by the
negligence of Landlord or those for whom it is in law responsible,
shall be repaired and replaced by the Tenant at its expense.
15. WAIVER
The failure of the Landlord to insist upon the strict performance of
any of the agreements, terms, covenants and conditions hereof shall not
be deemed a waiver of any subsequent breach or default in any of such
agreements, terms, covenants and conditions.
16. COMPLIANCE WITH LAWS AND REGULATIONS
The Tenant shall, at its own expense, promptly comply with the
requirements of every applicable statute, law and ordinance and with
every applicable lawful regulation or order with respect to the removal
of any encroachment placed by the Tenant, or to the condition,
equipment, maintenance, or use or occupation of the Leased Premises,
including the making of any alteration, addition in or to any structure
upon, connected with or appurtenant to the Leased Premises, whether or
not such alteration is required on account of any particular use to
which the Leased Premises or part thereof may be put and whether or not
such requirement, regulation or order be of a kind now existing or
within the contemplation of the parties hereto; and shall comply with
any applicable regulation, recommendation or order of the Canadian Fire
Underwriters' Association, or any body having similar functions or of
any liability or fire insurance company by which the Landlord and/or
the Tenant may be insured.
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17. FAILURE OF TENANT TO PERFORM
If the Tenant fails to pay any taxes, rates, insurance premiums or
charges which it has herein covenanted to pay, and which Tenant has
failed to pay within a period of ten (10) days after notice in writing
from the Landlord to remedy such default, the Landlord may pay the same
and shall be entitled to charge the sums so paid to the Tenant, plus an
administrative fee of fifteen percent (15%) for doing so, which shall
be charged to Tenant as Additional Rental, who shall pay them forthwith
on demand and the Landlord, in addition to any other rights, shall have
the same remedies and may take the same steps for all such sums as it
might take for the recovery of rent.
Such amounts so paid by the Landlord and any payments of Minimum Net
Rental and/or Additional Rental when not paid on any due date as
provided for herein shall bear interest from the due date to the date
of payment, calculated daily at the prime rate of the Canadian Imperial
Bank of Commerce, plus two percent (2%).
18. DEFAULT
The following shall be considered defaults under the terms of this
lease:
(a) If the Tenant shall fail to pay the Landlord any instalments
of Minimum Net Rental, any Additional Rental, or any other
amounts owing, after it shall have become due and payable as
herein provided and Tenant fails to correct such default
within five (5) days after notice in writing from the
Landlord;
(b) If the Tenant shall assign, sublet or permit the use of the
Premises by other except in the manner herein permitted;
(c) If any seizure is practiced against the property of the Tenant
in the Premises as a result of a judgment rendered against
Tenant;
(d) If the Tenant shall fail to take possession of the Premises,
or if the Tenant should abandon or vacate the Premises;
(e) If any insurance carried by the Landlord be cancelled in
consequence of the business carried by the Tenant, or in
consequence of anything brought into or stored in the Premises
by the Tenant, it being agreed and understood that if the
insurer of the Landlord threatens to cancel any of the
Landlord's insurance with respect to the Property, the Tenant
shall be immediately notified in writing; and
(f) If the Tenant shall default in the performance of any of its
other obligations under this lease, including without
limitation the obligation to pay business and water taxes in a
timely manner, or fail to effect any payment that may result
in a charge,
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lien, encumbrance, or other right on the Property, or shall
violate any of the rules and regulations hereinafter set
forth, or hereafter to be established by the Landlord, and
such default continues for fifteen (15) days following written
notice thereof from the Landlord unless such default is
incapable of being remedied with due diligence within such
fifteen (15) day period, in which case, if Tenant fails to
commence to remedy such default within such fifteen (15) day
period and thereafter to continue with due diligence the cure
of such default until it is remedied.
In the event of any default of the terms of this lease, this lease may
be terminated ipso facto, at the option of the Landlord, upon written
notice to the Tenant to such effect. It is expressly agreed that such
right of termination shall be, in addition to and without prejudice to
all other rights as provided by law or herein, the Landlord may
re-enter and re-let the Premises to whomsoever it may choose, acting
reasonably, without further notice or demand being necessary, and may
recover from the Tenant all amounts due hereunder at the date of such
termination, expenses of such reletting (including any repairs,
decorating, alterations or improvements necessitated thereby), and
rental for the six (6) months next succeeding the date of such
termination, all of which shall immediately become due and payable.
Thereafter, (that is, after the period for which Tenant has paid
accelerated rent) the Tenant shall pay to the Landlord as liquidated
damages until the end of the Term an amount equivalent to the rental
provided in this lease, less the sum of the net receipts (if any),
derived by the Landlord from re-letting of the Premises. As used
herein, the expression "rental" shall mean the Minimum Net Rental, and
the Additional Rental, and all other additional rents payable
hereunder. The Tenant hereby irrevocably waives the benefit which may
limit or diminish the Landlord's termination of this lease if the
Tenant owes the Landlord One Hundred Thousand Dollars ($100,000.00) or
more, and any right granted to the Tenant to prevent his eviction in
the event of any default, nor will the payment after legal proceedings
have been instituted entitle the Tenant to avoid the resiliation of the
lease.
19. BANKRUPTCY AND INSOLVENCY
In the event that Tenant shall be adjudicated a bankrupt or make any
general assignment for the benefit of creditors, or take the benefit of
any insolvency or bankruptcy act, or if a receiver or trustee be
appointed for the property of the Tenant, or any major part thereof,
the present lease shall automatically terminate on the occurrence of
any of the aforesaid events without further notice or delay, and
Landlord shall be entitled to recover all arrears of Minimum Net Rental
and Additional Rental as well as six (6) months of future Minimum Net
Rental, Proportionate Expense Rental and Additional Rental or such
other accelerated amount that the law may at any time provide.
The Tenant hereby irrevocably waives his right to repudiate this lease
pursuant to section 65.2 of the Bankruptcy and Insolvency Act or any
section passed to amend or replace it.
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20. MAINTENANCE AND REPAIRS
Notwithstanding the provisions of Article 1864 of the Civil Code of the
Province of Quebec, the Tenant, at its own expense shall operate,
maintain and keep the Leased Premises including all facilities,
equipment and services, both inside and outside, in such good order and
condition, as they would be kept by a careful owner and shall promptly
make all needed repairs and replacements to the Leased Premises which a
careful owner would make (save and except for repairs for which Tenant
is not required to contribute to Proportionate Expense Rental)
including, without limitation, the water, gas, drain and sewer
connections, pipes and mains, electrical wiring, water closets, sinks
and accessories thereof, and all equipment belonging to or connected
with the Leased Premises or used in its operation.
The Tenant shall also be responsible, at its sole expense, to wash the
inside and outside of the windows of the Premises and to maintain and
clean the Premises daily.
21. LEASEHOLD IMPROVEMENTS
The Tenant shall carry out all of the improvements and modifications
required for its use of the Leased Premises including the building of a
second floor and the work necessary to change the location of the
premises of Fuji Photo Film Canada Inc. ("Fuji") in order for the
Leased Premises to comply with the floor plans attached hereto as
Schedule "A" (the "Tenant's Work"). The Tenant shall also be
responsible for any structural work or modifications which are
necessary to the Building as a result of the Tenant's Work. Once
completed, all of the Tenant's Work will remain the property of the
Landlord. The Tenant shall also be responsible to obtain all required
permits to carry out said Tenant's Work.
The second floor to be built by the Tenant must be at the same height
as the mezzanine presently above the premises occupied by Fuji. It must
be of sufficient quality to carry a minimum load of one hundred pounds
(100 lbs.) per square foot, it shall have a minimum two-hour (2 hr)
fire rating resistance and it shall be sufficiently insulated to be
sound proof. The ceiling of the ground floor of the Leased Premises
must have a minimum of eleven clear feet (11 ft.) wherever Possible.
The ceiling of the second floor of the Leased Premises must have a
minimum of ten clear feet (10 ft.) wherever possible. Doors throughout
the Leased Premises must have a minimum of eight feet (8 ft.) in
height. Windows to be built must be wherever possible approximately
fifteen feet wide (15 ft.) by six feet high (6 ft.) all around,
matching the glass and frame of the existing windows on the Building.
The Tenant shall submit to the Landlord, for the Landlord's review and
approval having regards to the first class nature and quality of the
Building, the Tenant's build out plans (the "TBP") on or about March 7,
1995. Once the Landlord has approved the TBP, the
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Tenant's Work will be carried out in a good and workmanlike manner in
accordance with the approved TBP and the requirements of section 22
hereof.
The Landlord agrees to pay for the cost of the Tenant's Work up to a
maximum sum of One Million Seven Hundred and Fifty Thousand Dollars
($1,750,000.00), plus GST and QST thereof. If the Tenant's Work cost
less than One Million Seven Hundred and Fifty Thousand Dollars
($1,750,000.00), the Landlord shall pay to the Tenant the difference
within thirty (30) days of the substantial completion of the leasehold
improvements. The choice of the contractor will be made by both
parties, acting reasonably, from at least three contractors.
The Landlord shall pay for the cost of the Tenant's Work progressively
in accordance with the schedule of payments established in the winning
construction bid. If the Tenant's Work costs more than One million
Seven Hundred and Fifty Thousand Dollars ($1,750,000.00), the Tenant
shall pay to the contractor the balance owing in accordance with the
schedule of payments established in the construction bid.
The Landlord warrants that the current premises of the Tenant can be
connected to the Premises by networking computer cable.
The Landlord further warrants that the Volunteer dormitories can be
located inside the Premises without windows in accordance with Ville
Saint-Laurent by-laws, regulations, directives and ordinances (subject
to the condition that windows will be built all around the outside of
the Leased Premises).
The Tenant shall have the right to use an exterior landscaped space for
the purposes of a play area for a day-care centre to be located in a
location to be established by mutual consent of both parties within 500
meters of the day-care centre for the Premises, provided municipal
approval is obtained for same. The Tenant will have the right to fence
in this play area with a fence of 1.2 meters high and the Tenant shall
have access to the play area during all hours that the day-care centre
is in operation, provided municipal approval is obtained for same.
22. IMPROVEMENTS AND ALTERATIONS
The Tenant shall have the right to make the Tenant's Work and any other
subsequent improvements, alternations or additions (the "Work"), with
the prior written consent of the Landlord, which consent shall not be
unreasonably withheld, in the Leased Premises in compliance with the
following conditions.
(a) Tenant shall furnish to Landlord plans and specifications
showing in reasonably complete detail the Work proposed to be
carried out and the estimated cost thereof and Landlord shall
approve or reject such plans and specifications within thirty
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(30) days after receipt of the same. If such plans and
specifications are approved, all Work shall be carried out in
compliance with the same;
(b) The value of the Leased Premises shall not, as a result of any
Work proposed to be carried on by Tenant, be less than the
value of the Leased Premises before the commencement of such
Work and Landlord, acting reasonably, shall be the sole judge
of such value;
(c) All Work shall be carried out as expeditiously and diligently
as possible, and in a good Workmanlike manner and in
compliance with all applicable permits, authorizations and
building and zoning by-laws and with all regulations and
requirements of all competent authorities having jurisdiction
over the Leased Premises; using first quality materials.
(d) The Leased Premises shall at all times be free of all
Workmen's and suppliers' hypothecs and other similar hypothecs
and charges;
(e) Tenant shall maintain Workmen's Compensation insurance
covering all persons employed in connection with the Work and
shall produce evidence of such insurance to Landlord and shall
also maintain such general liability insurance for the
protection of Landlord and Tenant as Landlord may reasonably
require;
(f) All Work, when completed, shall be comprised in, and form part
of the Leased Premises and shall be subject to all the
provisions of this lease and Tenant shall not have any right
to claim compensation therefor and the same shall not be
removed by Tenant on termination of this lease.
(g) Tenant shall pay the Landlord a sum equal to all its
out-of-pocket expenses with respect to the review and
supervision of the Work, together with an administration fee
of fifteen percent (15%) of such out-of-pocket expenses.
The Tenant shall pay to the Landlord the amount of any increase for any
Real Estate Taxes or Capital Taxes to the extent that such increase is
attributable to any action by the Tenant under this Section or any of
the Tenant's Work set out in Section 21 hereof.
No repairs, alterations, additions, decorations or improvements to the
Premises by or on behalf of the Tenant shall be permitted which may
weaken or endanger the structure, adversely affect the condition or
operation of the Premises, or the building, or diminish the value
thereof, or restrict or reduce the Landlord's coverage for insurance
purposes.
23. RIGHT OF FIRST REFUSAL
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The Tenant shall have the right of first refusal to lease any vacant
space in the Building during the term of the Lease on the same terms
and conditions as offered by another party which the Landlord is
prepared to accept. The Landlord shall submit to the Tenant any offer
to lease received from any party and the Tenant shall have a period of
ten (10) days thereafter in which to exercise its right of first
refusal with respect thereto. If the Tenant fails to notify the
Landlord of its desire to exercise a right of first refusal in the time
permitted therefore, the Landlord shall be permitted to lease the space
on the terms and conditions contained in the offer submitted to the
Tenant to the party in question for a period of sixty (60) days
thereafter. If the Landlord fails to lease the space in question within
such sixty (60) day period or should the terms and conditions be
changed, the offer shall, once again, be subject to the Tenant's right
of first refusal.
24. UNDERSTANDING OF THIS LEASE
Notwithstanding the fact that the Landlord drafted this lease and
submitted it to the Tenant, the Tenant recognizes that the essential
stipulations of this lease were negotiable and that he understands all
of its stipulations and that the Landlord gave him adequate
explanations with respect to the terms and conditions of this lease.
25. DAMAGE AND DESTRUCTION
In the event that the Leased Premises shall be destroyed or damaged,
then:
(a) if, in the opinion of Landlord, the damage or destruction is
such that the Leased Premises are rendered wholly unfit for
occupancy or it is impossible or unsafe to use and occupy
them, and if in either event the damage, in the further
reasonable opinion of Landlord (which shall be given by
written notice to Tenant within sixty (60) days of the
happening of such damage or destruction) cannot be repaired
with reasonable diligence within one hundred and twenty (120)
days from the giving of such notice, either Landlord or Tenant
may within five (5) days next succeeding the giving of
Landlord's opinion as aforesaid, terminate this lease by
giving to the other notice in writing of such termination, in
which event the Term of this lease shall cease and be at an
end as of the date of such destruction or damage and the rent
and all other payments for which Tenant is liable under the
Terms of this lease shall be apportioned and paid in full to
the date of such destruction or damage. In the event that
neither Landlord nor Tenant so terminates this lease, rent and
all other payments for which Tenant is liable hereunder shall
abate from the date of the happening of the damage until the
damage shall be made good to the extent of enabling Tenant to
use and occupy the Leased Premises;
(b) if the damage be such that the Leased Premises are wholly
unfit for occupancy, or if it is impossible or unsafe to use
or occupy them but if in either event the
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damage, in the opinion of Landlord (which shall be given to
Tenant within sixty (60) days from the happening of such
damage) can be repaired with reasonable diligence within one
hundred and twenty (120) days of the giving of such notice,
rent and all other payments for which Tenant is liable
hereunder shall abate from the date of the happening of the
damage until the damage shall be made good to the extent of
enabling Tenant to use and occupy the Leased Premises;
(c) if, in the opinion of Landlord, the damage can be made good as
aforesaid within one hundred and twenty (120) days of the
giving of such notice, and the damage is such that the Leased
Premises are capable of being partially used for the purposes
for which leased, until such damage has been repaired, rent
and all other payments for which Tenant is liable hereunder
shall abate in the proportion that the part of the Leased
Premises rendered unfit for occupancy bears to the whole of
the Leased Premises.
In the event that the building is partially destroyed or damaged so as
to affect twenty-five percent (25%) or more of the rentable area of the
building containing the Leased Premises, or in the opinion of Landlord
the building is rendered unsafe, and whether or not the Leased Premises
are affected, and in the reasonable opinion of Landlord (which shall be
given by written notice to Tenant within sixty (60) days of the
happening of such destruction), cannot be repaired with reasonable
diligence within one hundred and twenty (120) days of the giving of
such notice, Landlord may within five (5) days next succeeding the
giving of Landlord's opinion as aforesaid, terminate this lease by
giving to Tenant notice in writing of such termination, in which event
the Term of this lease shall cease and be at an end as of the date of
such destruction or damage and the rent and all other payments for
which the Tenant is liable under the Terms of this lease shall be
apportioned and paid in full to the date of such destruction or damage.
Nothing herein contained shall oblige Landlord to repair or reconstruct
any leasehold alterations or improvements made to the Premises. On the
contrary, all improvements in and to the Premises shall be the
responsibility of Tenant, who shall be obliged to repair, replace and
re-fixture them to a standard at least the equivalent of that which
existed prior to the date of damage and destruction.
For greater clarity, it is agreed by the parties that rent and all
other payments for which Tenant is liable hereunder shall abate as
provided for in this section until the earlier of the two (2) following
dates:
i. the date on which the Tenant begins to use and occupy
the Leased Premises to carry on its business therein
after it has substantially completed its leasehold
improvements to the Premises;
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ii. ninety (90) days after the Landlord has completed its
repairs to the Property and the Premises to the
extent set out herein.
Despite anything contained in this lease to the contrary, and without
limiting Landlord's right or remedies hereunder, if more than
twenty-five percent (25%) of the leasable area of the Property is
damaged or destroyed, by reason of any cause in respect of which there
are no proceeds of insurance available to Landlord despite the fact
that Landlord has insured as a reasonably prudent landlord of a similar
property, or if the proceeds of insurance are insufficient to pay
Landlord for the cost of rebuilding or making fit the Property by at
least Two Hundred and Fifty Thousand Dollars ($250,000.00) in excess of
the deductible and despite the fact that Landlord has insured as a
reasonably prudent landlord of a similar property, or any part thereof,
or if any mortgagee does not consent to the payment to Landlord of such
proceeds for such purpose, or if the Term of the lease which remains is
less than twenty-four (24) months, then Tenant agrees that Landlord
may, without obligation or liability to Tenant, terminate this lease by
three (3) months written notice to Tenant, and all rents shall be
adjusted as of then, and Tenant shall vacate and surrender the leased
premises on such termination date.
Notwithstanding anything to the contrary contained in this Lease, the
Landlord releases and waives any and all claims for damages against the
Tenant and those for whom Tenant is in law responsible with respect to
occurrences insured or to be insured by the Landlord, and for which the
Landlord receives insurance proceeds (or would have received insurance
proceeds had it acted as a prudent administrator), whether or not such
claims arise as the result of the negligence of the Tenant or of those
for whom the Tenant is in law responsible and all policies of insurance
taken out by the Landlord with respect to the Property shall provide
that the insured shall not have any right of subrogation against the
Tenant or any of its employees, agents or contractors.
Notwithstanding the foregoing, the Landlord shall not be permitted to
terminate this lease as a result of a damage or destruction unless
concurrently therewith, it also terminates the leases of all other
tenants of the Property. Should the Landlord rebuild the Property
within a period of one (1) year from the date of the damage or
destruction, Tenant shall have an option for thirty (30) days after
being notified of Landlord's decision to rebuild to lease Premises
similar to the Premises for the balance of the term after the damage or
destruction and otherwise on the same terms and conditions as contained
in this lease.
26. INSURANCE REQUIREMENTS
Tenant shall not do or commit any act upon the Leased Premises or bring
into or keep upon the premises any article which will affect the fire
risk or increase the rate of fire insurance or other insurance on the
building. The Tenant shall be entitled to use those solvents and
materials which are customarily used in the carrying on of its
business. The
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Tenant shall from time to time provide the Landlord with a list of such
solvents and materials in order that the Landlord shall be able to
advise its insurer accordingly.
Tenant shall comply with the rules and requirements of the Insurers'
Advisory Organization of Canada or any successor body, and with the
requirements of all insurance companies having policies of any kind
whatsoever in effect covering the building, including policies insuring
against tort or delictual liability.
Subject to the foregoing, in no event shall any inflammable material,
except for kinds and quantities required for ordinary office occupancy
and permitted by the insurance policies covering the building, or any
explosives or radioactive material whatsoever, be taken into the Leased
Premises or retained therein.
Should the rate of any type of insurance on the building be increased
by reason of any violation of this lease by Tenant, Landlord, in
addition to all other remedies, shall pay the amount of such increase,
and the amount so paid shall become due and payable immediately by
Tenant and collectible as Additional Rental.
Tenant shall take out and keep in force during the Term of this lease
comprehensive general liability insurance in amounts and with policies
in form satisfactory from time to time to Landlord and with insurers
reasonably acceptable to Landlord, the comprehensive general liability
insurance in no event to be for less than five million dollars
($5,000,000.00), inclusive limits and all risks insurance covering
furniture, fixtures and improvements in an amount equal to the full
insurable value thereof. Copies of each insurance policy shall
forthwith upon execution be delivered to Landlord, at the request of
the Landlord. Each such policy shall name Landlord as an additional
insured as its interest may appear and the comprehensive general
liability policy shall contain a cross liability clause. The cost of
premium for each and every such policy shall be paid by Tenant. Tenant
shall obtain form the insurers under such policies, undertakings to
notify Landlord in writing at least ten (10) days prior to any
cancellation thereof.
Tenant agrees that if Tenant fails to take out or to keep in force such
insurance and Tenant had failed to remedy such default within two (2)
days after written notice from Landlord specifying such default,
Landlord will have the right to do so and to pay the premium therefor
and in such event Tenant shall repay to Landlord the amount paid as
premium, plus fifteen percent (15%) administration fee for doing so,
which repayment shall be collectible as Additional Rental payable on
the first day of the next month following the said payment of Landlord.
27. CANCELLATION OF INSURANCE
If any insurance policy on the Property or any part of it is cancelled
or threatened by the insurer to be cancelled, or refused to be renewed,
or if the coverage under it is reduced in
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any way by the insurer because of the use or occupation of any part of
the Leased Premises by the Tenant or by any occupant of the Leased
Premises, and if the Tenant fails to remedy the condition giving rise
to the cancellation, threatened cancellation or reduction of coverage
within forty-eight (48) Working hours after notice by the Landlord, the
Landlord may, either:
(a) re-enter and take possession of the Leased Premises
immediately by leaving upon the Leased Premises a notice of
its intention to do so upon which the Landlord will have the
same rights and remedies that are available to him under this
lease or in virtue of the general law; or,
(b) enter upon the Leased Premises and remedy the condition giving
rise to the cancellation, threatened cancellation or reduction
of coverage and the Tenant will immediately pay the costs and
expenses to the Landlord, together with a fee of fifteen
percent (15%) of such costs and expenses representing the
Landlord's overhead, which costs and expenses may be collected
by the Landlord as Additional Rent and the Landlord will not
be liable for any damage or injury caused to any Property of
the Tenant or others located on the Leased Premises as the
result of the entry. Such an entry by the Landlord is not a
re-entry or a breach of any covenant for quiet enjoyment.
Tenant will pay the amount of any increase in insurance premiums on the
whole of the Property of which the Leased Premises form part, if such
increase is caused by Tenant's operations in the Leased Premises.
Tenant covenants that nothing will be done or omitted to be done
whereby any policy shall be cancelled or the Leased Premises rendered
uninsurable.
28. SUBORDINATION
The Landlord declares that it may assign its rights under this lease to
a lending institution as collateral security for a loan to the Landlord
and in the event that such an assignment is given and executed by the
Landlord and notification thereof is given to the Tenant by or on
behalf of the Landlord, it is expressly agreed between the Landlord and
Tenant that this lease shall not be cancelled or modified for any
reason whatsoever without the consent in writing of such lending
institution.
Tenant hereby covenants and agrees that it will and whenever reasonably
required by Landlord and at Landlord's expense, consent to and become a
party to any instrument or instruments permitting a mortgage, trust
deed or hypothec: to be placed on the Property, or any part thereof
which the Leased Premises are a part as security for any indebtedness
covered by the said trust deed, mortgage or hypothec in order to
subordinate this lease to the said trust deed, mortgage or hypothec,
provided that any trust deed, mortgage or
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hypothec shall provide that Tenant's peaceful possession of the
Premises shall not be disturbed as long as it does not default in
accordance with the provisions hereof.
29. ATTORNEY
The Tenant will, upon request of the Landlord or the mortgagee,
hypothecary creditor or any person having an interest in the project,
execute and deliver promptly those instruments and certificates
referred to in Section 30 above which are requested by the Landlord.
However, if ten (10) days after the date of request by the Landlord the
Tenant has not executed and delivered them, the Tenant hereby
irrevocably appoints the Landlord as the Tenant's attorney with full
power and authority to execute and deliver in the name of the Tenant
the instruments and certificates required.
30. INDEMNIFICATION
Except in the event of negligence of Landlord or those for whom it is
in law responsible, the Landlord shall not be liable nor responsible in
any way for any injury of any nature whatsoever that may be suffered or
sustained by the Tenant or any employee, agent or customer of the
Tenant or any other person who may be upon the Leased Premises or for
any loss of or damage to any property belonging to the Tenant or to its
employees or to any other person while such property is on the leased
Premises and in particular (but without limiting the generality of the
foregoing) the Landlord shall not be liable for any damage or damages
of any nature whatsoever to any such property caused by the failure, by
reason of a breakdown or other cause, to supply adequate drainage, snow
or ice removal, or by reason of the interruption of any public utility
or service or in the event of steam, water, rain or snow which may leak
into, issue or flow from any part of the building or from the water,
steam, sprinkler, or drainage pipes or plumbing Works of the same, or
from any other place or quarter or for any damage caused by anything
done or omitted by any tenant, but the Landlord shall use all
reasonable diligence to remedy such condition, failure or interruption
of service, after notice of same, when it is within its power and
obligation so to do. Nor shall the Tenant be entitled to any abatement
of Minimum Net Rental and Additional Rental in respect of any such
condition, failure or interruption of service.
The Tenant will indemnify and save harmless the Landlord from and
against all fines, liability, damage suits, claims, demands and actions
of any kind or nature which the Landlord shall or may become liable for
or suffer by reason of any breach, violation or non-performance by the
Tenant of any covenant, term or provision hereof or by reason of any
injury (including death resulting at any time therefrom) or damage to
property occasioned to or suffered by any person or persons including
the Landlord by reason of any such breach, violation or non-performance
or of any wrongful act, neglect, or default on the part of the Tenant
or any of its employees or officers.
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The Landlord will indemnify and save harmless the Tenant from and
against all fines, liability, damage, suits, claims, demands and
actions of any kind or nature which the Tenant shall or may become
liable for or suffer by reason of any breach, violation or non
performance by the Landlord of any covenant, term or provision hereof
or by reason of any injury (including death resulting at any time
therefrom) or damage to Property occasioned to or suffered by any
person or persons including the Tenant by reason of any such breach,
violation or non-performance of any wrongful act, neglect or default on
the part of the Landlord or any of its employees or officers.
Notwithstanding anything to the contrary contained in this Lease, the
Tenant releases and waives any and all claims for damages against the
Landlord and those for whom Landlord is in law responsible with respect
to occurrences insured or to be insured by the Tenant, and for which
the Tenant receives insurance proceeds or for which it would have
received insurance proceeds had it acted as a prudent administrator,
whether or not such claims arise as the result of the negligence of the
Landlord or of those for whom the Landlord is in law responsible and
all policies of insurance taken out by the Tenant shall provide that
the insured shall not have any right of subrogation against the
Landlord or any of its employees, agents or contractors.
31. CONDITION OF PREMISES
The Tenant represents that the Premises have been examined by the
Tenant and save and except for any latent defects, the Tenant accepts
the same in the condition or state which they now are, without
representation or warranty, expressed or implied, in fact or by law, by
the Landlord, and without recourse to the Landlord as to the nature,
condition or usability thereof.
32. OUTSIDE AREAS
The Tenant shall not use any part of the exterior parking and loading
areas or any other areas outside the Leased Premises for any purpose
other than parking shipping or receiving in the areas designated by the
Landlord for same save and except for the day care centre mentioned in
section 21 hereof,
33. PERMITS, ETC
The Tenant shall obtain all necessary permits and licenses required for
the occupancy and carrying on of its business.
34. HEATING
Tenant shall suitably heat the Leased Premises at its own cost and
expense.
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35. SIGNS
The Tenant shall be entitled to install on the upper part of the
Building such signs as are normally installed in connection with its
business, provided such signs comply with municipal by-laws and are
approved by the Landlord in accordance with its criteria, which
approval shall not be unreasonably withheld. Installation, if approved,
will be at the sole expense of the Tenant. At the expiration of this
lease, Tenant shall remove its signs at its own cost. Tenant shall be
responsible for any and all damages incurred by the removal of its
signs, and shall restore that portion of the building or the Property
to its original condition, subject to normal wear and tear and damage
by fire, lightening tempest, structural weakness or defects, Acts of
God, civil commotion, rights and insurrections, causes beyond the
control of Tenant and damage for which the Landlord is insured or
damage for which a prudent Landlord would be insured and those repairs
which are the responsibility of the Landlord pursuant to the terms
hereof.
36. RIGHT OF ENTRY
Upon a twenty-four (24) hour notice, the Landlord shall have the right
to exhibit the Property from time to time to any prospective mortgagee,
purchaser or Tenant at all reasonable hours.
The Tenant hereby renounces to Article 1885 of the Civil Code.
Landlord shall have the right at all times during the Term of this
lease to place upon the Leased Premises a notice of reasonable
dimensions and reasonably placed so as not to interfere with the
business of Tenant, stating that the Leased Premises are for sale and,
for six (6) months prior to the end of the Term, Landlord shall have
the right to place upon the Leased Premises a similar notice that the
Leased Premises are for rent and Tenant win not remove such notice or
knowingly permit same to be removed.
37. DISTURBANCE
The Tenant will not hold the Landlord in any way responsible for any
damages or annoyance which the Tenant may sustain through the fault of
any Tenant or Tenants who occupy any premises adjacent to, near or
above the Leased Premises unless Landlord does not use its reasonable
efforts in order to stop or prevent any such further damage or
annoyance, and not use the Leased Premises for any purpose,
notwithstanding anything stated herein, which may cause noise,
disturbance or noxious odours, to the discomfort of other tenants and
neighbours, and renounces to any claims he may have or acquire against
the Landlord under Article 1861 of the Civil Code of the Province of
Quebec, except to the extent hereinabove otherwise provided.
38. NOTICE AND DEMANDS
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Any notice or demand given by the Landlord to the Tenant shall be
deemed to be duly given when served upon the Tenant personally, or when
mailed (registered) to the Tenant at the address of the premises. The
Tenant elects domicile at ______ for the purpose of service of all
notices, writs of summons or other legal documents in any suit at law,
action or proceeding which the Landlord may take under this lease.
Any notice or demand given by the Tenant to the Landlord shall be
deemed to be duly given when served upon the Landlord personally or
when mailed (registered) to the Landlord at the address designated by
the Landlord for purposes of payment of rent hereunder.
39. RULES AND REGULATIONS
The Landlord shall have the right at its discretion to make reasonable
rules and regulations not contrary to the spirit and intent of this
lease which may from time to time be needful for the safety, care,
cleanliness and proper administration of the Property including the
Leased Premises, and for the preservation of good order therein, and
the same be observed and performed by the Tenant and by the clerks,
servants, employees, agents and customers of the Tenant, and all such
rules and regulations now or hereafter to be established by the
Landlord as herein provided shall form part of this lease as if now set
forth at length herein.
40. PUBLICATION
The parties agree that this Lease is a confidential document which
cannot be shown to any third party.
The rights resulting from the present Lease may be published against
the title to the Property, by way of a summary to which shall be
annexed an abbreviated form of the Lease, which shall not contain any
financial information in order to keep such financial information from
the public. The said abbreviated lease and summary forms shall be
prepared and completed by the Tenant who shall submit them for prior
written approval by the Landlord or its legal counsel prior to
depositing same at the registry office for publication. The provisions
of this Lease shall take precedence over the provisions of the
abbreviated lease which shall be executed by the parties for
publication reasons only. The publication costs and the costs for
providing copy of the said summary to the Landlord shall also be at the
Tenant's expense. Should this Lease be published by way of a summary,
the Tenant shall, at the termination of the Lease, cause the
registration of such summary to be cancelled at its expense, failing
which the Landlord will have the right to cause such cancellation and
charge the Tenant with the cost of same.
41. WASTE OR GARBAGE
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The Tenant agrees that it will keep the Leased Premises in a clean and
tidy condition and will not permit waste paper, garbage, ashes, waste,
debris or other objectionable material to accumulate thereon. Tenant
shall arrange for removal and disposal of waste or garbage at its sole
expense.
42. ODOURS, DUST OR NOISE
The Tenant warrants that no noxious odours, dust or unreasonable noise
will emanate from the Leased Premises as a result of the operations
conducted by the Tenant therein and Tenant further covenants that it
will not cause or maintain any nuisance in, at or on the Leased
Premises and/or the Property. Accordingly, the Tenant agrees that
should such noxious odour, dust, or noise conditions exist, it will, at
its own expense, take such steps as may be necessary to rectify the
same, provided further that if the Tenant shall fail to commence to do
so within forty-eight (48) hours and complete the same within a
reasonable time after notice is received by the Tenant from Landlord,
then the Landlord may, at its option and without prejudice to its other
rights or recourses:
(a) notify Tenant that it must shut down the offending operation
in the Leased Premises; and
(b) Landlord may proceed forthwith to take reasonable measures to
correct the situation and the Landlord shall be entitled to
cover the cost thereof from the Tenant forthwith upon demand,
plus an administrative fee of fifteen percent (15%) for doing
so, which shall be charged to Tenant as additional rent, such
cost to be considered as Additional Rental hereunder.
43. MANAGEMENT OF PROPERTY
The Landlord shall have the right to have the Property managed by a
property management corporation that it designates in writing from time
to time.
44. CUMULATIVE REMEDIES
No reference to or exercise of any specific right or remedy by the
Landlord shall preclude the Landlord from or prejudice the Landlord in
exercising any other right under this lease in pursuing any other
remedy or maintaining any action to which it may otherwise be entitled
at law.
45. ACCORD AND SATISFACTION
No payment by the Tenant or receipt by the Landlord of a lesser amount
other than the monthly payment of Minimum Net Rental is to be construed
as other than on account of
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the earliest stipulated Minimum Net Rental and/or Property Expense
rental and/or Additional Rental nor is any endorsement or statement on
any cheque or any letter accompanying any cheque or payment as rent to
be considered in acknowledgment of full payment or an accord and
satisfaction, and the Landlord may accept payment and cash cheques
without prejudice to the Landlord's right to recover the balance of the
rent or pursue its other remedies.
Except in case of emergency, should the Landlord be required to do any
Work in the Premises, it shall notify the Tenant of the nature and the
location of same and the parties shall agree on mutually convenient
time for the performance of same.
46. ACCESS
Upon a twenty-four (24) hour notice (except in an emergency), the
Landlord shall have the right of access to the Leased Premises only
during business hours except in an emergency, to perform work necessary
for the Building or other tenants in the Building, the Tenant
renouncing any claim to any indemnity or diminution of rent provided
the same be carried out with reasonable diligence.
47. FLOOR LOADING
Tenant shall not bring upon the Leased Premises or any part thereof any
machinery, equipment, article or thing that by reason of its weight or
size might damage the Leased Premises and win not at any time overload
the floors of the Leased Premises and if any damage is caused to the
Leased Premises by any machinery, equipment, article or thing or by
overloading or by any act, neglect or misuse on the part of Tenant or
any of its servants, agents or employees or any person having business
with Tenant, Tenant will forthwith pay to Landlord the cost of making
good the same.
48. OPTION TO RENEW
Provided the Tenant is not in default in virtue of this Lease, Tenant
shall have the option, upon giving a written notice to Landlord not
less than twelve (12) months prior to expiration of the Term of any
renewal period, of renewing the Term of this Lease for three (3)
additional periods of five (5) years each. The Lease shall be renewed
on the same terms and conditions, except for the Minimum Net Rental
which shall be the fair market rental for similar premises; in the same
geographic area for similar renewal terms.
49. SUCCESSORS AND ASSIGNS
This lease binds and benefits the parties and their respective heirs,
executors, administrators, successors and assigns as limited in this
lease.
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50. DESCRIPTIVE HEADINGS
The descriptive headings of this lease are inserted for convenience in
reference for possible registration purposes only and do not constitute
a part of this lease.
51. INTERPRETATION
This lease shall be construed and governed by the laws of the Province
of Quebec. Should any of the provisions of this lease and/or its
conditions be illegal or not enforceable under the laws of the Province
of Quebec, it or they shall be considered severable and the lease and
its conditions shall remain in force and be binding upon the parties as
though the said provisions or conditions had never been included.
52. WAIVER OF RESPONSIBILITY
Landlord and Tenant shall not be liable for failure or delays in
performing any of their obligations hereunder, should such failure or
delays be caused by fire or other casualty, war, disaster, riots,
strikes, walk-outs, acts of God, or other causes, except monetary
inability beyond Landlord's or Tenant's reasonable control.
53. LANGUAGE
The Tenant hereby confirms that it has requested that the present
document be drafted in the English language. Le Locataire certifie
qu'il a requis que les presentes soient redigees en anglais.
EXTRACT OF A RESOLUTION OF THE BOARD OF DIRECTORS OF PHOENIX INTERNATIONAL LIFE
SCIENCES INC. CONSENTED TO BY ALL OF THE DIRECTORS OF THE COMPANY AS OF THE
THIRD (3rd) DAY OF MARCH 1995.
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BE IT RESOLVED AND IT IS HEREBY RESOLVED:
THAT this Corporation lease from Liberty Sites Ltd. part of the
building situated at 4850 Dobrin and 4901 Levy streets, in the City of St.
Laurent, Province of Quebec, containing an office and warehouse area of
approximately seventy thousand nine hundred and eighty square feet (70,980 sq.
ft.) for a term of fifteen (15) years commencing on July 1, 1995, the whole
pursuant to the terms of a draft lease approved by the directors;
THAT Jean-Yves Caloz, secretary of the Corporation, be and she is
hereby authorized to execute the lease and to furthermore sign such further
documents and do such things that may be necessary or incidental in connection
with the foregoing.
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TRUE copy of a resolution of Phoenix International Life Sciences Inc.
adopted as of the third (3 rd) day of March 1995, in full compliance
with the relevant provisions of the articles and by-laws of the
Corporation, which resolution is presently in force, without amendment.
CERTIFIED in St. Laurent as of the third (3d) day of March 1995.
Name: /S/ JEAN-YVES CALOZ
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Jean-Yves Caloz, Secretary
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