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LESSEE'S NO: WEST-99-195
Exhibit 3.1
AGREEMENT OF LEASE
signed on November 19th, 1999
between
SITQ BUREAUX INC., RULIM INC. AND IMMEUBLES REGIME INC.
duly represented by their mandatory
SITQ Inc.
(the "Lessor")
and
ISEE3D INC.
(the "Lessee")
SITQ
IMMOBILIER
TABLE OF CONTENTS
TITLES PAGES
PARTIES 1
ARTICLE 1 DEFINITIONS, INTENT AND INTERPRETATION I
ARTICLE 2 LEASE AND DELIVERY OF LEASED PREMISES 4
ARTICLE 3 SERVICES FURNISHED TO THE LESSEE 5
ARTICLE 4 RENT 7
ARTICLE 5 REAL ESTATE TAXES 7
ARTICLE 6 TAXES 7
ARTICLE 7 USE AND MAINTENANCE OF LEASED PREMISES 7
ARTICLE 8 LEASEHOLD IMPROVEMENTS 9
ARTICLE 9 INSURANCE 11
ARTICLE 10 ACCESS BY LESSOR TO LEASED PREMISES 12
ARTICLE 11 DAMAGE AND DESTRUCTION 13
ARTICLE 12 EXPROPRIATION 13
ARTICLE 13 DAMAGES 13
ARTICLE 14 SIGNS AND ADVERTISING 14
ARTICLE 15 COMPLIANCE WITH LAWS AND INDEMNIFICATION 14
ARTICLE 16 SUBLET AND ASSIGNMENT 15
ARTICLE 17 SUBORDINATION AND ATTORNMENT 17
ARTICLE 18 DEFAULT AND RECOURSE 17
ARTICLE 19 NOTICE 19
ARTICLE 20 TERMINATION OF LEASE 19
ARTICLE 21 UNAVOIDABLE DELAY 19
ARTICLE 22 MODIFICATION OF LEASE AND PERFORMANCE BY A THIRD PARTY 20
ARTICLE 23 MISCELLANEOUS 20
ARTICLE 24 MOVABLE HYPOTHEC 21
ARTICLE 25 REGULATIONS 21
ARTICLE 26 SPECIAL PROVISIONS/SCHEDULES 21
SCHEDULES
SCHEDULE "A" GUARANTY(IES) IN FAVOUR OF THE LESSOR
SCHEDULE "B" DESCRIPTION OF LAND
SCHEDULE "C" WORKBY THE LESSOR AND BY THE LESSEE
SCHEDULE "D" PLAN OF LEASED PREMISES
SCHEDULE "E" REGULATIONS
SCHEDULE "F" SPECIAL PROVISIONS
SCHEDULE "G" LESSEE'S RESOLUTION
SCHEDULE "H" STATUS REPORT
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AGREEMENT OF LEASE
BETWEEN: SITQ BUREAUX INC., RULIM INC. AND IMMEUBLES REGIME INC., duly
represented by their mandatary, SITQ INC., a company duly incorporated
under the laws of the Province of Quebec, having its head office at
Centre de Commerce Mondial de Montreal, ▇▇▇ ▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, in the City of Montreal, Province of ▇▇▇▇▇▇, ▇▇▇ ▇▇▇,
hereinacting and represented by Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Vice-president,
Office Buildings and Business Parks and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Leasing
Director, duly authorized for the purposes hereof, as they so declare,
(hereinafter referred to as the "Lessor")
AND: ISEE3D INC., a company duly incorporated under Canada Business
Corporations Act, having its head office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in the
City of Burnaby, Province of British Columbia, V5A 4N6, hereinacting
and duly represented by Morden ▇. ▇▇▇▇▇▇▇, Chairman & C.E.O., duly
authorised for the purposes hereof, as declared and as more fully set
forth in the resolution attached hereto as Schedule "G";
(hereinafter referred to as the "Lessee")
THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS, INTENT AND INTERPRETATION
1.1 Definitions - When used in this Lease, and unless incompatible with the
context in which they are utilized, the following words and expressions
have the meaning hereinafter set forth:
1.1.1 "Additional Rent": means all of the financial obligations of
the Lessee other than the Rent;
1.1.2 "Building": means ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
1.1.3 "Business Hours": means the period between 8h00 am to 6h00 pm,
Monday to Friday on business days excluding legal holidays and
such other times as the Lessor may set from time to time;
1.1.4 "Commencement of the Lease": the earlier of the following
dates:
the first (1st) day of January, 2000
1.1.5 "Common Areas and Facilities": means all areas and facilities
of the Immovable which are not intended for the exclusive
benefit of any lessee in particular, as determined by the
Lessor from time to time;
1.1.6 "Contaminants and Hazardous Materials": have the meaning
attributed thereto in the Environmental Legislation and
include any material which, because of its properties,
presents a real or potential hazard to the environment or the
health of users of the Immovable or of the Leased Premises;
1.1.7 "Environmental Legislation": means all federal, provincial or
municipal legislative and regulatory environmental provision,
including, in all cases, any judgments, orders, notices,
notices of offence, decrees, codes, rules, instructions,
policies, guidelines and guides, authorizations, certificates
of authorization, approvals, permits and licenses issued by
any authority having jurisdiction, the whole as amended from
time to time;
1.1.8 "Fiscal Period": means a period commencing on the first (1st)
day of January of the year and ending on the last day of
December next following, with the exception of the first
Fiscal Period, which shall begin at the same time as this
Lease and terminate on the thirty-first (31st) day of December
next following, and with the exception of the last Fiscal
Period, which shall terminate at the same time as this Lease;
however, the Lessor expressly reserves the right to change the
Fiscal Period and its duration;
1.1.9 "Gross Rent' means:
i) from the Commencement of the Lease to October 31st, 2002;
an annual gross rent of one hundred twenty-three thousand
eight hundred ninety-nine dollars ($123,899.00), payable in
advance, in equal monthly and consecutive instalments of ten
thousand three hundred twenty-four dollars and ninety-two
cents ($10,324.92) each, on the first day of each month during
the entire Term, based on a gross rate of nineteen dollars per
square foot ($19.00/sq.ft.) of the Leasable Area of the Leased
Premises;
ii) from November 1st, 2002 to March 31st, 2004,
an annual gross rent of one hundred twenty-seven thousand one
hundred fifty-nine dollars and fifty cents ($127,159.50),
payable in advance in equal monthly and consecutive
instalments of ten thousand five hundred ninety-six dollars
and sixty-three cents ($10,596.63) each, on the first day of
each month during the entire Term, based on a gross rate of
nineteen dollars and fifty cents per square foot (19.50 $/sq.
ft.) of the Leasable Area of the Leased Premises;
1.1.10 "Immovable": means the land described in Schedule "B", plus
the Building and other structures erected thereon from time to
time;
1.1.11 "Land": means all lots or parts of lots described in Schedule
"B" of this Lease;
1.1.12 "Leasable Area of the Leased Premises": means the area of the
Leased Premises as calculated according to the criteria of
BOMA, as described in Schedule "G" of this Agreement. At any
time during the Term, the Lessor's architect or land surveyor
(at Lessor's choice) may definitely determine the Leasable
Area of the Leased Premises. The architect's or land
surveyor's certificate with respect to the Leasable Area of
the Leased Premises shall be conclusive and shall bind all
parties herein retroactively to the Commencement of the Lease.
1.1.13 "Lease": means and refers to this agreement and its schedules,
as well as any amendments thereto;
1.1.14 "Leased Premises": means the premises outlined in red in
Schedule "D" having a Leasable Area of approximately six
thousand five hundred twenty-one square feet square feet (6
521 sq.ft.), subject to the Lessor's architect's or land
surveyor's measurement, known as Suite 100, of the Building;
1.1.15 "Lessee": means the Lessee or its successor;
1.1.16 "Lessor": means the owner of the Immovable or its mandatary;
1.1.17 "Operating Expenses": means, all costs incurred in the
operation, administration, maintenance, repair, supervision
and management of the Immovable, including, namely:
1.1.17.1. salaries, wages and costs related to fringe
benefits and pension plan benefits for all
employees of the Lessor engaged in the operation,
maintenance, repair, surveillance, supervision and
management of the Immovable;
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1.1.17.2. the cost of all goods and services furnished,
employed or utilized in the operation,
maintenance, repair, surveillance, supervision and
management of the Immovable, except for the cost
of special goods and services furnished to certain
lessees of the Immovable, for which the said
lessees are responsible;
1.1.17.3. the reasonable rental value of the space occupied
by employees of the Lessor engaged in the
administration, supervision or management of the
Immovable, and by all administrative services of
the Lessor, as well as of any space required or
utilized in the Immovable for security, welfare,
health, protection or other similar services, for
the benefit of the Immovable and its users in
general;
1.1.17.4. the costs related to the maintenance of a public
order and security service;
1.1.17.5. the costs of auditing, accounting and management
incurred in the operation of the Immovable;
1.1.17.6. the costs related to the planning, maintenance,
repair and decoration of the Common Areas and
Facilities of the Immovable, including the
cleaning of windows and exterior walls, snow
removal, cleaning, repair and maintenance of the
Land, and contracts with independent contractors;
1.1.17.7. the cost of all repairs to the Immovable,
including the replacement of any equipment,
apparatus, machinery or other property of the
Immovable;
1.1.17.8. the cost of any modifications and improvements to
the Immovable, including, without limiting,
modifications or improvements to the machinery and
equipment contained therein and the cost of any
modifications and additional equipment and
specialized services needed in the Immovable for
energy conservation measures, when, in the opinion
of the Lessor, these expenditures are likely to
reduce the Operating Expenses or be such as to
improve the welfare or the security of the lessees
or other occupants of the Immovable, or when such
equipments, modifications, materials or
improvements are required by law;
1.1.17.9. the total capital depreciation or amortization,
calculated according to the straight-line
depreciation method, based on the useful life of
the capital assets, or on any other shorter period
of time as may be reasonably determined by the
Lessor, on the cost of all equipment, apparatus or
machinery and other property required for the
operation, maintenance, repair, surveillance,
supervision, management, modification or
improvement of the Immovable and the establishing
of energy conservation measures which, in the
opinion of the Lessor, have a useful life longer
than one Fiscal Period and the cost of which has
not been fully included in the Operating Expenses
of the Fiscal Period of their acquisition (in
accordance with generally accepted accounting
principles) with interest at the Prime Rate upon
the undepreciated or unamortized portion of the
cost of said assets;
1.1.17.10. the cost of energy to ensure:
the humidifying, the heating, the ventilating, the
air-conditioning and the lighting of the Immovable
and not exceeding the standards of these presents,
the supply of domestic hot water at all times all
other services of the Immovable requiring energy
excluding the sums payable by the Lessee in
conformity with Article 3.6 of these presents.
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1.1.17.11. the real cost of all insurance premiums paid by
the Lessor with respect to the Immovable, in
accordance with prudent insurance practices or as
may be required by the creditors of the Lessor.
1.1.17.12. annual administration fees of fifteen per cent
(15%), calculated on the total of the Operating
Expenses.
1.1.18 "Prime Rate": means the rate designated by the National Bank
of Canada as being its prime rate, plus five (5) percentage
points.
1.1.19 "Proportionate Share": means the ratio of the Leasable Area of
the Leased Premises to the leasable area of the Building; this
ratio may vary in the event of an increase or a decrease in
the Leasable Area of the Leased Premises or in the leasable
area of the Building;
1.1.20 "Real Estate Taxes": means all levies of any nature whatsoever
on the ownership or operation of the Immovable, including
interest on deferred payments, but excluding tax on the income
or on the capital of the Lessor (except that part of the tax
on the capital attributable to the Immovable, which is
included) and excluding any tax on real estate transfers;
1.1.21 "Rent": means Gross Rent including, for the purposes hereof,
Minimum Rent, Operating Expenses and Real Estate Taxes
(including municipal, surtax).
1.1.22 "Taxes": means all governmental levies usually paid by lessees
(e.g. water and business taxes, GST, Quebec Sales Tax), in
connection with the Leased Premises, the contents thereof or
the business conducted therein;
1.1.23 "Taxing Authority": means any governmental authority
whatsoever, legally authorized to impose taxes;
1.1.24 "Term": means the period commencing on the date stipulated as
the Commencement of the Lease and terminating on the date
stipulated as the Termination of the Lease;
1.1.25 "Termination of Lease": the thirty-first (31st) day of March,
2004.
1.1.26 "Unavoidable Delay": means a delay caused by circumstances
(except for the financial situation of either of the parties),
which are reasonably beyond the control of the Lessor or the
Lessee, as the case may be;
1.2 Intent - It is the intent of the parties to this Lease that it be gross
rent to the Lessor. The Lessor shall not be liable during the Term for
any costs of any nature whatsoever relating to the Leased Premises and
the electricity consumption and the Lessee shall be solely responsible
for any such costs, except as expressly otherwise provided herein.
ARTICLE 2
LEASE AND DELIVERY OF LEASED PREMISES
2.1 Lease of Leased Premises - The Lessor hereby leases to the Lessee the
Leased Premises for the Term and in consideration of the Rent to be
paid by the Lessee hereunder and of the other provisions and
obligations to be observed and executed by the Lessee herunder.
2.2 Delivery and Finishing of Leased Premises - The Lessee acknowledges
having carefully examined the Leased Premises in their present state
and declares being fully satisfied therewith. If such examination has
not been made, the Lessee undertakes to do so at the time of delivery
of the Leased Premises and to notify the Lessor in writing within ten
(10) days of taking delivery of any defect in the Leased Premises.
Should the Lessee fail to do so, the Lessee shall be deemed to have
taken delivery of the Leased Premises in a good state and to be
satisfied therewith, and to acknowledge that i) the Lessor has
discharged all its obligations in the preparation and delivery of the
Leased Premises and ii) the Leased Premises may be used for the
purposes for which they
have been leased. Schedule "C" describes the work to be undertaken by
each parties and allocates the costs thereof.
2.3 Minor Deficiencies - Notwithstanding the incompletion of the work, the
Leased Premises shall be deemed ready for delivery and the Term shall
not be affected so long as such incomplete work does not significantly
interfere with the use of the Leased Premises.
2.4 Delay in the improvements of the Lessee - If the Lessor allows the
Lessee to undertake the leasehold improvements in the Leased Premises,
as set forth in Schedule "C" and, in the event such leasehold
improvements are not completed prior to the Commencement of the Lease,
the Term shall in no case be affected.
2.5 Delay in the improvements of the Lessor - If the Lessor accepts to
undertake the leasehold improvements in the Leased Premises, as set
forth in Schedule "C", and these improvements are not completed prior
to the Commencement of the Lease for a cause attributable to the
Lessee, the Term shall in no case be affected. If the delay is
attributable to the Lessor, the Lessee shall not make any claim for
damages. However, the Commencement of the Lease shall be deferred by
the number of days equal to the number of days of delay.
2.6 Relocation - The Lessor shall have the right, at any time, to replace
the Leased Premises with any other premises located in the Building so
long as the premises are substantially comparable to the Leased
Premises, with respect to the space and the usage for which the Lessee
had leased the Leased Premises.
In the event the Leased Premises are occupied by the Lessee at the time
of the relocation, the Lessor shall assume all reasonable costs related
to the Lessee's moving in the new premises and the Lessor shall ensure
that such move is performed diligently and shall make its best possible
efforts not to inconvenience the Lessee.
Prior to such relocation and, in the event the Lessee is already
occupying the Leased Premises, the Lessor shall give a thirty (30) days
written notice, such notice to precede the date to which the relocation
has been scheduled. In any other event, the Lessor shall then give the
Lessee a fifteen (15) days written notice prior to the scheduled
relocation.
The new premises assigned to the Lessee shall then be designated as the
"Leased Premises" and the Minimum Rent and the Additional Rent shall
then be adjusted according to the new leasable area of the new
premises.
ARTICLE 3
SERVICES FURNISHED TO THE LESSEE
3.1 Description of Services - The Lessor agrees to supply to the Lessee the
following services:
3.1.1 "Air-Conditioning": The Lessor shall supply, during Business
Hours, air-conditioning to the Leased Premises. All special
requests shall be at the expense of the Lessee. The Lessee
shall be liable for the improper functioning of the system
caused by nonconforming partitions, by changes to the Leased
Premises, by the absence of sunshields, by the excessive use
of electrical power, or by the use of apparatus resulting in
the releasing of excessive heat by the Lessee.
3.1.2 "Elevators": The Lessor shall supply passenger elevators
during Business Hours. At all other times, limited elevator
service shall be available.
The Lessee shall have the use of escalators, if any, and
elevators, in conjunction with all other persons having access
thereto.
The freight elevator, if any, shall be used for the conveyance
of furniture to the Leased Premises, the whole pursuant to the
Lessor's guidelines. Any deliveries shall be made at the
loading ramp of the Building only, and may be made solely by
the representatives of the Lessee.
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3.1.3 "Heating": The Lessor shall heat the Leased Premises during
Business Hours. The Lessee shall be liable for any
malfunctioning of the system attributable to nonconforming
partitions or to changes to the Leased Premises.
3.1.4 "Lighting": The Lessor shall provide, at its cost, at the
Commencement of the Lease, standard electrical equipment of
the Immovable as well as the "Supplies" necessary for its
functioning such as bulbs and starters. Thereafter, the
Supplies shall be at the cost of the Lessee, the Lessor
reserving its right to replace all of the Supplies in whole or
in part, should this practice be in conformity with proper
real estate management.
3.1.5 "Business Hours": The Building shall be open during Business
Hours. At all other times, the Lessor shall ensure that the
Leased Premises are reasonably accessible.
3.1.6 "Cleaning": The Lessor shall have the Leased Premises cleaned,
outside of Business Hours, according to the Lessor's usual
standards. The Lessee shall leave the Leased Premises in a
proper state. Should, however, the wall or floor coverings of
the Leased Premises differ from the standard coverings of the
Building, or should additional services be required by the
Lessee, the Lessee shall pay the Lessor the resulting
supplementary costs, as Additional Rent.
3.2 Use of Common Areas and Facilities - The Lessee shall be entitled to
use and to benefit from the Common Areas and Facilities of the
Immovable, in conjunction with all others also entitled to such and
having access thereto. The Lessor may at any time change the form and
destination of the Immovable and of its Common Areas and Facilities
insofar as the enjoyment of the Leased Premises are not substantially
affected.
3.3 Supplies and Services - Only the Lessor or its designated suppliers may
provide electrical supplies and services, which shall be billed at
comparable market rates.
3.4 Suspension of Services - In the event of an accident or for the purpose
of effecting work, or for any reason beyond the Lessor's control, the
Lessor shall be entitled to suspend or to modify any service required
to be provided under the Lease for such time deemed reasonable by the
Lessor.
3.5 Additional Services - All additional services or services provided
outside Business Hours, which the Lessor accepts to provide, shall be
so provided upon sufficient prior notice and at the expense of the
Lessee. The costs and expenses incurred by the Lessor in rendering such
additional services shall be subject to an increase of fifteen per cent
(15%) for administration fees.
3.6 Electricity - The Lessee shall pay to either the Lessor or the utility
supplier all costs related to the consumption of electricity in the
Leased Premises. The electricity consumption shall be calculated by a
separate metre furnished by Westmount Electric Service or any other
electrical energy supplier. The electricity consumed in the Leased
Premises shall be billed to the Lessee and shall thereafter be payable
by the Lessee either directly to the Lessor or to the utility supplier.
It is understood that the Lessor will not be held responsible of any
disagreement that may occur between the Lessee and the utility
supplier, as the case may be.
The Lessor shall supply electrical power in the Leased Premises, of a
capacity to meet a maximum demand of twenty-eight (28) ▇▇▇▇▇ per square
metre, namely ten (10) ▇▇▇▇▇ per square metre for lighting purposes and
eighteen (18 ) ▇▇▇▇▇ per square metre for electrical outlets and the
Lessee hereby declares itself satisfied therewith. In the event the
Lessee requires additional capacity for its usage, the Lessee shall pay
for the costs incurred to supply such capacity. This is conditional
upon the Lessor being able to supply such capacity.
The Lessee undertakes to never consume an amount of electrical power
exceeding the capacity of the facilities supplying the Leased Premises.
The Lessor shall be entitled to make the necessary verifications.
Notwithstanding the foregoing, the Lessor shall have the right to
install one or several sub-metres in which case the Lessee shall pay
the energy consumed as indicated on the sub-metre(s), the whole in
conformity with Westmount Electric Service's rates.
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If necessary, the Lessee shall pay an Additional Rent to the Lessor for
the use of heating system and/or air-conditioning system the Lessee
wishes to add to the normal heating system and/or normal
air-conditioning for the Leased Premises. The Lessee shall also pay for
the installation of the necessary equipment related thereto.
3.7 Damages caused during the provision of services - The Lessor shall not
be liable to any person for any damages in connection with the services
described in this Article, whether the services are provided or not,
unless caused by the fault or negligence of the Lessor or of its
employees. However, in no case shall the Lessee have the right to a
reduction of the Rent or to resiliate the Lease. The Lessor shall,
however, to the extent possible, remedy the situation with due
diligence and within a reasonable delay.
ARTICLE 4
RENT
4.1 The Rent shall be paid on the first (1st) day of each month, at the
address indicated by the Lessor without notice and without any
abatement or compensation whatsoever. Adjustments for parts of months
shall be made on a per diem basis.
ARTICLE 5
REAL ESTATE TAXES
5.1 Notwithstanding the aforementioned provision with respect to the
inclusion of any new tax or levy in the Real Estate Taxes and,
notwithstanding the fact that the Real Estate Taxes are included in the
Gross Rent, as defined in Article 1.1.21 herein, in the event a new tax
or levy is imposed on the Immovable, the Lessee shall then pay its
Proportionate Share of said a new tax or levy in addition to the Gross
Rent.
ARTICLE 6
TAXES
6.1 The Lessee shall pay all Taxes as they become due - Should the method
of collecting the Taxes be altered so as to make the Lessor liable for
payment thereof, the Lessee shall reimburse the Lessor on demand.
ARTICLE 7
USE AND MAINTENANCE OF LEASED PREMISES
7.1 Use of the Leased Premises - As an essential condition of the Lease, it
is agreed that the Lessee shall use the Leased Premises for office
purposes only and for no other purpose. The Lessee undertakes to use
the Leased Premises with prudence and diligence. The Lessee undertakes
not to disturb the peaceful enjoyment of the other lessees, failing
which, the Lessee will be liable towards the Lessor and the other
lessees for any damage that may result, whether such damage is caused
by the Lessee's own acts or by the acts of persons which the Lessee has
allowed to use or have access to the Leased Premises. The Lessee
acknowledges and agrees that it is only one of many other tenants in
the Building and that therefore the Lessee shall conduct its business
in the Leased Premises in a manner consistent with the best interest of
the Building as a whole.
7.2 Prohibited Use - Without limiting the generality of the foregoing and
without derogating from the Lessee's obligations as provided in Article
7.1 hereof, the Lessee will not use or permit or suffer the use of the
Leased Premises, or any part thereof, for any of the following
businesses or activities, in or from the Leased Premises:
7.2.1 any unethical or fraudulent practice;
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7.2.2 any business or activity in respect of which the Landlord has
granted an "exclusive" provision in other leases or offers to
lease entered into by the Landlord and concerning which the
Landlord has given the Lessee written notice. The Lessee
agrees not to conduct its business in the Leased Premises in a
manner that would cause the Landlord to be in contravention of
such exclusive clauses and agrees to indemnify and save the
Landlord harmless against and from any actions or claims and
for all costs and expenses in connection therewith. If, in the
Landlord's opinion, the use by the Lessee of the Leased
Premises is prohibited by a provision of another lease, the
Lessee shall immediately discontinue such use, upon written
notice by the Landlord, failing which, the Landlord shall have
the right to a payment of a penalty equal to four times the
Minimum Rent payable for each day of default or terminate this
Lease by written notice, without prejudice to any of its other
rights and recourses.
The Lessee hereby acknowledges and agrees that, for the
purposes of Article 16.4 hereof, the Landlord, in refusing any
sublet or assignment for any of the aforesaid businesses or
activities, shall not be considered as unreasonably
withholding its consent. Moreover, the Landlord may insist
that the Lessee cease all prohibited activity forthwith upon
demand.
7.3 Occupancy of the Leased Premises - The Lessee shall occupy the Leased
Premises and shall continuously and actively operate its business in
the entire area of the Leased Premises during the whole Term; the
Lessee shall not leave the Leased Premises vacant or unoccupied at any
time during the Term, and shall keep therein the moveable property
which is normally used in the operation of its business, the whole at
all times throughout the Term. The Lessee acknowledges that its
obligations pursuant to this Article 7.3 are of the utmost importance
to the Lessor in order to avoid the appearance and impression generally
created by vacant space, to facilitate the leasing of space in the
Building, and to maintain the character, quality and image of the
Building. Furthermore, the Lessee acknowledges that the Lessor shall
suffer important, serious and irreparable damages if the Lessee does
not conform to the provisions of the present Article 7.3, and this,
even if the Lessee continues to promptly pay all Rent and Additional
Rent herein provided.
7.4 Maintenance and Repair of the Leased Premises - The Lessee shall assume
and pay for all expenses related to the use and the maintenance of the
Leased Premises. In this regard, the Lessee undertakes to effect, at
its cost, all replacements and repairs necessary to maintain the Leased
Premises in a good state, with the exception of such replacements and
repairs due to aging. The present provision includes the Lessee's
obligations to pay for replacements and repairs related to the
structure or to the electro-mechanical systems of the Building when
such replacements or repairs are attributable to an act or omission of
the Lessee or of any person the Lessee allows to use or to have access
to the Leased Premises. It is expressly agreed that all work or
replacements to the electro- mechanical systems shall only be effected
by the Lessor.
In addition, the Lessor may, at all times, without court authorization,
effect all necessary work, replacements, repairs and maintenance which,
in its opinion, is deemed to be necessary in order to ensure the
conservation and the enjoyment of the Immovable and the Leased
Premises. If the Lessor proceeds with such work, it shall ensure that
the enjoyment of the Leased Premises is not materially diminished. If
necessitated by the nature of the work, replacements, repairs and
maintenance, the Lessor may require the Lessee, without court
authorization, to vacate or to be temporarily dispossessed of the
Leased Premises. The Lessor shall exercise its right in a reasonable
manner and indemnify the Lessee. Notwithstanding the foregoing, the
Lessee shall in no event resiliate or request a reduction of Rent.
7.5 Inspection and Repairs - The Lessor and its representatives may enter
the Leased Premises at all times to examine their condition and to make
such modifications which they deem necessary or useful for the
operation and the proper maintenance of the Immovable or of its
electromechanical systems.
7.6 Right of Access- If the Lessor deems it necessary to install in the
Leased Premises those portions of systems serving the Immovable, the
Lessee shall authorize the Lessor to carry out such work without being
compensated, provided that the enjoyment of the Leased Premises is not
materially diminished.
7.7 Refuse - The Lessee shall follow the instructions of the Lessor with
respect to refuse.
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1.8 Notice of Defects - The Lessee shall notify the Lessor within a
reasonable delay, of any defect or deterioration which is susceptible
of damaging the Leased Premises, the Building or the Common Area and
Facilities.
ARTICLE 8
LEA SEHOLD IMPROVEMENTS
8.1 All Leasehold Improvements carried out in the Leased Premises
(Leasehold Improvements"), before or during the Term, shall be first
approved by the Lessor, and shall meet the following conditions:
1.1.1 In order to avoid the suspension of work, the Lessee shall
have the work performed, at its own expense, by contractors
and subcontractors approved by the Lessor. Such contractors
and subcontractors shall:
Before the beginning of the work:
--------------------------------
a) provide the Lessor with the plans and specifications,
beforehand signed by the Lessee, showing the proposed
Leasehold Improvements, as well as all documents
necessary to work approval, like construction
permits, architecture plan bearing the architect's
seal, elevation plan and finish samples, plan of
mechanical and electrical distribution, bearing the
seal of a specialised engineer, if need be. Should
the plans and specifications be approved by the
Lessor and bear the Lessor's seal, the Leasehold
Improvements must be carried out in conformity with
such plans and specifications. No Leasehold
Improvements shall be performed by the Lessee as long
as the plans are not approved by the Lessor and
attested by the Lessor's seal;
b) provide the certificates of compliance, as well as
the following documents:
- Company signing resolution;
- Bid bond (when required; the bid bond must
be presented with the tender);
- Performance bond (when required);
- Licence from the Regie des entreprises de
construction;
- Certificate of compliance with CCQ;
(competency card, permits, etc.)
- Certificate of compliance with CSST;
(contributions paid, etc.)
- List of subcontractors;
c) obtain the necessary permits and authorisations;
d) carry out the Leasehold Improvements, according to
the Lessor's instructions;
e) contract, and provide copy of, an insurance against
civil liability, covering their activities in the
Building, until the date of issuance of the
certificate of total performance of work, for an
amount of at least two million dollars
($2,000,000.00), as well as a general property
insurance policy covering at least the amount of the
price of the contract and full value of the specified
products to be provided by the contractor in order to
be incorporated to the work. The insurance contract
shall include the Lessor as a co-insured party and
comprise an undertaking clause by such insurers to
notify the Lessor in case of cancellation or
modification of the insurance policy, at least thirty
(30) days in advance. To this effect, the contractor
shall be responsible for all damage caused by its
contractors, subcontractors, as well as its
suppliers.
Moreover, it is expressly agreed that all work
related to the electromechanical systems will be
performed only and solely by the Lessor.
It is also agreed that the Lessee shall be
responsible for all the professionals and contractors
hired on this project. The Lessee shall also
designate a representative who will communicate with
the Lessor's supervisor.
8.1.2 It is acknowledged that the Lessee is in no way acting as the
Lessor's mandatory with respect to the Leasehold Improvements
carried out in the Leased Premises, and that such Leasehold
Improvements are performed by the Lessee for its own benefit,
even if the Lessor grants the Lessee an allowance for the
work, as it is common practice on the market.
8.1.3 On the date of the end of work at the latest, the Lessee shall
pay the Lessor an amount equal to five percent (5 %) of the
costs of the Leasehold Improvements, in order to compensate
the Lessor for the management and supervision of the work and
the approval of the plans. Should the case arise when the
Lessor pays the Lessee an Allowance, as described in Schedule
C" herein, the Lessor shall deduct an amount equal to five
percent (5 %) on the Allowance, in compensation for the
management, supervision of the work and approval of the plans.
Such Allowance shall become due and claimable by the Lessee,
according to the terms of Schedule "C" herein, if the case
arises.
8.1.4 Furthermore, at least ten (10) days before the work in the
Leased Premises begin, the Lessee shall provide the Lessor
with, and this at the Lessor's discretion, a security bond on
the construction or a bank's letter of credit for the value of
the work to be done, which form and content shall be subject
to the Lessor's approval acting reasonably, or a notice of
waiver and a commitment of release for all legal hypothec or
right of legal hypothec that could arise out of the materials
supplied. Should the Lessee default in providing the Lessor
with the guaranties required, the Lessor can order the
immediate ending of the work being done or to be carried out
by such contractor or subcontractor in the Leased Premises.
8.1.5 Should an hypothec or other security be registered, the Lessee
shall have such hypothec or security cancelled within fifteen
(15) days. Should this cancellation not be done, the Lessee
shall provide the Lessor with a sufficient deposit to pay the
said hypothec or other security, along with the pertaining
legal fees. Such amount will be reimbursed to the Lessee, less
the expenses incurred by the Lessor, upon proof of
cancellation of the hypothec or security. If the Lessee
defaults in depositing the required amount, the Lessor shall
have the right to cancel such hypothec or security, and then
claim from the Lessee the reimbursement of the incurred
expenses, along with the fees and the interests, at the Prime
Rate.
8.1.6 Each contractor shall respect the working rules of the
Building, a list of which shall be given to the contractors at
the moment of the granting of the contract. The contractors
shall also respect all construction codes. All work shall be
performed after the Business Hours of the Building. Should
some work have to be executed during the Business Hours, said
work shall first be authorised and permitted by the Building's
manager. Moreover, should the Lessee have work executed in an
area other than the Leased Premises, or should the Lessee use
the freight elevator, during the performance of work in the
Leased Premises, the Lessor shall provide the services of a
security guard, at the Lessee's expense.
The contractor shall be responsible for all damage caused by
its subcontractors, as well as its suppliers, and therefore
the Lessee shall ensure that the contractor has suitable
insurance to this effect.
8.1.7 The Lessee shall provide the Lessor with the plans as
constructed, shop drawings mechanical balancing report, plans
approved by the City, and operating manuals, within two (2)
weeks following the completion of work.
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Furthermore, should the Leasehold Improvements be executed by
the Lessor, by the Lessee with no allowance from the Lessor,
or by the Lessee with an allowance from the Lessor, all other
terms and conditions, as well as the list of work, are
described in Schedule "C" herein.
8.2 All Leasehold Improvements shall become the Lessor's property, as soon
as they are installed in the Leased Premises and shall be surrendered
with the Leased Premises at the Termination of the Lease, without any
compensation whatsoever to the Lessee. Notwithstanding the foregoing,
the Lessee shall, at the End of Term or at the moment of any
anticipated resiliation of the Term, at its own costs, remove all
Leasehold Improvements for which the removal has been demanded by the
Lessor, should it have been brought in the Leased Premises before or
after the Commencement of the Lease, by the Lessor or the Lessee, or by
the Lessor for the previous Lessee. Should the Lessor require so, the
Lessee shall, at its own expense, leave the Leased Premises in base
building state. The Lessee shall, at its own expense, leave the Leased
Premises in good state and clean, under reserve of the repairs due to
normal ageing, and repair all damage caused to the Building due to the
removal of the Leasehold Improvements.
The removal of the Leasehold Improvements from the Leased Premises, as
well as the repairs pertaining to such removal, shall be completed
before the End of the Term or, in the case of an anticipated
resiliation of the Term, within ten (10 ) days following the reception
of a written notice from the Lessor to this effect. Such notice shall
be sent within the thirty (30) days that follow the taking back of the
Leased Premises by the Lessor.
Should the Lessee fail to respect this section, the Lessor shall be
entitled to demand from the Lessee, immediately upon request, all costs
and expenses then incurred by the Lessor, as well as management fees of
fifteen percent (15 % ) of such costs and expenses related to the
removal of the Leasehold Improvements by the Lessor and/or repairs,
being agreed that such obligation shall continue after the end of this
Lease agreement.
Provided that the Lessee executed its obligations in virtue of the
Lease, at the moment of the End of the Lease, the Lessee shall be
entitled to remove from the Leased Premises all its movable properties
in the Leased Premises. However, all movable properties left in the
Leased Premises after the End of the Lease shall be deemed to be
abandoned, and the Lessor may dispose of such properties as it sees
fit, without compensation of any nature to the Lessee.
ARTICLE 9
INSURANCE
9.1 The Lessee shall, at its own expense and throughout the Term, keep in
force:
a) insurance coverage for public liability of businesses,
covering the Leased Premises and the property located therein,
for an amount equal to a minimum of three million dollars
($3,000,000.00) for each occurrence or for any greater amount
which the Lessor may reasonably request from time to time,
which insurance must contain such guarantees as required by
the Lessor;
b) a broad form insurance coverage for all of the property
located in the Leased Premises, and namely the leasehold
improvements, for an amount equal to their replacement cost,
without any deductions for depreciation, which insurance
shall, in addition, have the following endorsements:
replacement value and any other endorsements required by the
Lessor;
c) broad form comprehensive boiler and machinery insurance as
well as insurance against the breakdown of equipment and
machinery (under pressure or otherwise) "combined form" and
protecting in the Leased Premises the destruction of such
equipment and machines, damages caused by all such occurrences
and the interruption of business resulting therefrom, for an
amount equal to total forceable damages, without any deduction
for depreciation, which insurance must include such
endorsements as required by the Lessor.
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d) business interruption insurance "broad form" providing
standard coverage of a minimum period of twelve (12) months,
in such amount to compensate the Lessee for all loss of
earnings and for additional expenses attributable namely to
the perils to be insured against pursuant to sub-paragraphs
(a), (b) and (c) mentioned above, which insurance shall also
include such endorsements as required by the Lessor;
e) all other insurance which the Lessor may reasonably require
from time to time.
9.2 All insurance policies shall:
a) be acceptable to the Lessor in form and in substance;
b) be subscribed from insurers acceptable to the Lessor;
c) provide that they will not be permitted to expire or to be
modified unless the insurer gives the Lessor a ten (10) days
written notice to that effect;
d) name the Lessor and the Lessee as insureds, according to their
interests;
e) contain a waiver of subrogation of all rights which the
Lessee's insurers may have against the Lessor and for persons
for whom it is in law responsible.
9.3 Increase of Risk - The Lessee shall:
a) not do anything which increases the risk of fire and the
insurance premium rates for the Immovable;
b) comply with the requirements of the Lessor's insurers or of
any associations of insurers having jurisdiction in such
matters; and
c) not keep dangerous materials in the Leased Premises unless
such materials are required for its business and, in such a
case, in such quantities as are permitted by the Lessor's
insurance policies, failing which the Lessee shall pay to the
Lessor any resulting increase of the insurance premiums.
9.4 No co-insurance - Notwithstanding the fact the Lessee pays its
Proportionate Share of the Lessor's insurance policy premiums, the
Lessee acknowledges that it shall not be a co-insured, that it shall
not have any insurable interest in the said policies and that it shall
remain liable for any damage that might be caused by its fault,
negligence, acts or omissions or those of the persons the Lessee
permits to use or to have access to the Leased Premises. The Lessor or
its insurers shall not waive their right to claim from the Lessee any
damage that the Lessee is responsible for under the Lease or the Law.
9.5 Certificates - The Lessee shall furnish the Lessor with certificates of
insurance at least ten (10) days prior to taking possession of the
Leased Premises and thereafter, within ten (10) days of the renewal
thereof.
9.6 If the Lessee fails to maintain the insurance for which it is bound,
the Lessor may do so in the name of the Lessee and in such event, all
premiums paid by the Lessor shall be reimbursed by the Lessee.
ARTICLE 10
ACCESS BY LESSOR TO LEASED PREMISES
10.1 Visiting the Leased Premises - During the last twelve (12) months of
the Term of this Lease, the Lessee shall permit any person interested
in leasing the Leased Premises to visit the Leased Premises during
Business Hours.
The Lessee shall permit the Leased Premises to be visited by any
broker, purchaser, lender or evaluator of the Immovable. The Lessor
shall exercise its right in a reasonable manner.
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ARTICLE II
DAMAGE AND DESTRUCTION
11.1 Destruction of Leased Premises - Should the Leased Premises be
destroyed or damaged, the Lessor shall state its intention to the
Lessee by way of written notice transmitted to the Lessee within thirty
(30) days of the loss, to the effect that the Leased Premises are:
11.1.1 wholly uninhabitable or that their use is dangerous and cannot
be reasonably repaired within one hundred and eighty (180)
days following the loss, in which case either party may
resiliate the Lease with retroactive effect to the date of the
loss; if such notice is not given within five (5) days
following the notice provided for in Article 11.1, the Rent
shall ▇▇▇▇▇ from the date of the loss until the Leased
Premises are repaired and are ready to be occupied by the
Lessee.
11.1.2 wholly uninhabitable or that their use is dangerous but are
reasonably reparable within one hundred and eighty (180) days
following the loss, as the case may be, the payment of Rent
shall ▇▇▇▇▇ from the date of the loss until such time that the
Leased Premises are repaired and are ready to be occupied by
the Lessee;
11.1.3 reasonably reparable within one hundred and eighty (180) days
following the loss and are partly usable in the interim; as
the case may be, payment of Rent shall ▇▇▇▇▇, with respect to
the unusable area, from the date of the loss until such time
that the damages have been substantially repaired.
11.2 Destruction of the Building - If the Lessor is of the opinion, which
shall be given by notice within thirty (30) days of the loss, that
twenty per cent (20%) or more of the Leasable Area of the Building is
damaged, or if the Lessor is of the opinion that the Building is
hazardous and that the Building cannot be reasonably repaired within
one hundred and eighty (180) days or, that the proceeds of insurance do
not cover the cost of repairs, then the Lessor may resiliate the Lease
with effect retroactive to the date of the loss, all adjustments to the
Rent to be made as of such date.
11.3 No Obligation to Rebuild - The Lessor shall be under no obligation to
repair or rebuild the Building, the Leased Premises or contents
thereof, the Lessee's alterations, improvements or other property.
ARTICLE 12
EXPROPRIATION
12.1 Resiliation of the Lease - In the case of an expropriation or of a
taking of possession ("Expropriation") by a competent authority which,
according to the Lessor, renders the Building or the Leased Premises
unusable, the Lessor may terminate the Lease from the date of the
Expropriation by way of a written notice to the Lessee. The Lessee may
claim any damages from the expropriating party but not from the Lessor.
12.2 No Obligation to Contest - The Lessor is under no obligation to contest
the Expropriation. The parties hereby reserve all their rights to claim
future damages against the expropriating authority.
ARTICLE 13
DAMAGES
13.1 Liability of the Lessor - Notwithstanding any provision to the
contrary, the Lessor shall not be liable for damages occurring in the
Leased Premises or in the Immovable resulting from any cause
whatsoever, unless such damages are directly attributable to the fault
of the Lessor. The Lessor shall not be liable for damages suffered by
the Lessee resulting from the fault attributable to a lessee or a third
party even if such third party is a person whom the Lessee or another
lessee of the Building has allowed to use or to have access to the
Leased Premises.
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13.2 Limited Liability - Even if the damages are due to the fault of the
Lessor, its liability shall extend only to the movable property and to
the ordinary fixtures of the Lessee located in the Leased Premises and
shall not extend to special equipment, documents and securities.
13.3 No Reduction of Rent - Unless otherwise stipulated in the Lease, the
Lessee shall not in any case with respect to an occurrence relating to
the Immovable or the Leased Premises or to an act of the Lessor of any
nature whatsoever, have the right to a reduction of Rent or to the
resiliation of the Lease. Nevertheless, the Lessee may, if granted by a
court of law, obtain from the Lessor compensation resulting from
damages directly attributable to the fault of the Lessor.
ARTICLE 14
SIGNS AND ADVERTISING
14.1 Consent of Lessor - Any sign or advertising material visible from the
exterior of the Leased Premises or which may be distributed in the
Immovable must be approved by the Lessor who may require that the
Lessee ceases the use thereof, without delay. Should the Lessee not
comply with the Lessor's request, the Lessor shall be entitled to do so
at its cost and at the expense of the Lessee.
14.2 Maintenance of Signs - The Lessee shall, at its expense, maintain all
signs and shall indemnify the Lessor for any damage which may be caused
to the Lessor.
14.3 Injurious Advertising - The Lessee shall not publish any advertisement
injurious to the reputation of the Lessor, the Lessor or another lessee
of the Immovable, and shall immediately cease any such advertising at
the request of the Lessor.
ARTICLE 15
COMPLIANCE WITH LAWS AND INDEMNIFICATION
15.1 Compliance with Laws - The Lessee shall comply with all laws and
regulations governing the business conducted in the Leased Premises.
The Lessee shall carry out any changes to the Leased Premises or to the
business conducted therein, Which may be legally required by the
competent authorities, failing which, the Lessor, after having given
written notice to the Lessee, may carry out such changes in its place
and at its expense.
15.2 Indemnity of Lessor - The Lessee shall indemnify the Lessor against any
penalty payable by the Lessor resulting from the Lessee's breach to
comply with the present Article, including all related expenses,
including legal fees incurred by the Lessor to protect its rights.
15.3 Environmental Clause - During the Term and its renewal, the Lessee
agrees to respect the Environmental Legislation and comply therewith
promptly at its expense and to immediately notify the Lessor of any
release and discharge and presence inside or outside the Leased
Premises of any Contaminants and Hazardous Materials which are in
breach of the Environmental Legislation.
The Lessee is liable for any damage whatsoever caused in or to the
Immovable or the Leased Premises as a result of its non-compliance with
the Environmental Legislation, which damage may also entail the
termination of the Lease.
Notwithstanding anything to the contrary, the Lessee undertakes to save
and hold harmless the Lessor, its representatives, agents or employees
from any claims, losses, costs, fees, expenses, damages for bodily
injury, moral damages, property damages, actions, suits or proceedings
arising from or attributable to Lessee's act, refusal, negligence or
omission to comply with the Environmental Legislation.
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ARTICLE 16
SUBLET AND ASSIGNMENT
16.1 Mandatory Consent of the Lessor - The Lessee shall not assign the Lease
or sublet the Leased Premises in whole or in part, nor suffer the
Leased Premises to be utilized by another person (such utilization
being, for the purposes hereof, considered as a sublease) without the
written consent of the Lessor, which consent may not be withheld
without a serious reason.
16.1.1 In the event of an assignment or of the subletting of the
whole or any part of the Leased Premises, unless a specific
written consent to this effect is obtained from the Lessor, no
options whatsoever contained in this Lease shall benefit such
sublessee or assignee.
16.1.2 The occupancy of a part or of the totality of the Leased
Premises by a Prospect or the Landlord's tolerance of such
occupancy or its acceptance of any payment shall in no way
constitute a waiver of the Tenant's obligation to obtain the
Landlord's consent for an assignment or a sublet.
16.2 Deemed Assignment- If the Lessee is a company, a corporation or a
partnership, any change in the effective control thereof is deemed to
be an assignment of the Lease and the Lessee and the assignee shall
comply with the present Section 16.
16.3 Information to be provided - The request of the Lessee with respect to
obtaining the consent of the Lessor to the sublease or the assignment
shall include the following:
16.3.1 the name, address and telephone number of the true proposed
sublessee or assignee, or in the case of the change of
effective control of a corporation or of a company, those of
the senior executives of the corporation or of the company as
well as of those persons who are acquiring the control
thereof;
16.3.2 information acceptable to the Lessor with respect to the
commercial experience of the persons;
16.3.3 references from banks and other credit institutions, financial
statements (if available) and any other information which the
Lessor may reasonably require for the purpose of its
evaluation;
16.3.4 if the sublessee or the assignee is a partnership or a
company, the declarations or constituting documents thereof,
as amended;
16.3.5 the sublessee or the assignee's written undertaking to respect
all and every obligations of the present Lease including,
without limitation, the obligation to grant to Lessor the same
suretys as previously granted by the Lessee or any other
surety that the Lessor may reasonably request; and
16.3.6 complete disclosure of all consideration, rental, terms and
conditions of the proposed assignment or sublease, as well as
all information and documents relating to the proposed
sublease or assignment.
16.4 Justified Refusal - The Lessor may refuse to consent to the proposed
sublease or assignment of the Lease, for any serious reason, including,
without limitation:
16.4.1 failure to provide the information or documents required
pursuant to Article 16.3;
16.4.2 the poor reputation, lack of business experience or lack of
commercial success of the proposed sub-lessee or assignee;
16.4.3 if the use which the proposed assignee or sublessee intends to
make of the Leased ~ sin confflct, in whole or in part, with
any exclusivity right then already granted by the Lessor to
another lessee in the Building; or is incompatible with the
image, character or quality of the Building;
* Parties stipulate that ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ CM INC. may sublet
part of the Premises from the lessee, subject to Article 16 of
the lease.
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16.4.4 if the proposed assignee or sublessee is already a lessee or
occupant of the Building and other space is available for such
party in the Building or will become available within the next
following six (6) months; or
16.4.5 if the proposed assignee or sublessee does not intend to
physically occupy the Leased Premises and actively operate its
business therein in good faith; or
16.4.6 if the proposed assignment or sublease becomes effective
before the date on which the Lessee has physically occupied
the Leased Premises and commenced to actively operate its
business therein in good faith; or
16.4.7 if the Lessor has reasonable grounds to beleive that the
proposed assignee or sublessee does not have the financial
capacity to meet all its obligations, including, without
limitation, the obligations of the Lessee towards the Lessor
under the Lease.
16.5 Answer of the Lessor - Within thirty (30) days from the receipt of the
Lessee's complete request for the Lessor's consent, together with all
the required information and documents, the Lessor shall inform the
Lessee:
a) of its refusal to consent, stipulating the reasons therefor,
or
b) of its consent, or
c) that the Lessor has chosen, as an alternative to its consent
(without affecting its other rights and without being obliged
thereto), to become itself the sublessee or the assignee, as
the case may be, for the same consideration, rentals, terms
and conditions as those of the proposed sublease or
assignment, in the place of the proposed assignee or
sublessee, or
d) that the Lessor has chosen, as an alternative to its consent
(without affecting its other rights and without being obliged
thereto), to terminate the Lease as of the fifteenth (l5th)
day following the date on which the Lessor so informs the
Lessee, it being understood that the Lessee shall, however,
have the right to withdraw its request for consent to the
proposed assignment or sublease within such fifteen (15) days
delay.
16.6 Delay for Sublet or Assignment - Should the Lessee not sublet or assign
the Leased Premises within sixty (60) days after having obtained the
consent of the Lessor, said consent shall be considered null and the
Lessee shall recommence the procedure for carrying out the sublease or
the assignment.
16.7 Should the Lessor fail to perform its obligations for which it is bound
to the Lessee, the sublessee may not exercise the rights and remedies
of the Lessee against the Lessor.
16.8 Solidarity - Notwithstanding any sublease or assignment, the Lessee's
liability shall remain solidary with the assignee or the sublessee, as
the case may be for all of the obligations of the Lessee pursuant to
the Lease, so that the Lessor may compel the Lessee , and the Surety
(if any), to observe all of the obligations of the Lease as if no
assignment or sublease had occurred.
16.9 Expenses of the Sublease or the Assignment - If the sublease or the
assignment is accepted, the Lessee shall reimburse the Lessor for the
related administrative expenses subject to the approbation of the
sublease or the assignment, which shall be payable by certified cheque
and shall be remitted at the time of signature of the agreement of
sublease or of assignment.
16.10 Approval of Publicity - The sublease or the assignment may not be
publicised in any manner whatsoever, without the express approval of
the Lessor with respect to the form and substance of such publicity,
all advertising in relation to the sublease or the assignment of the
Lease may be injurious to the Immovable.
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ARTICLE 17
SUBORDINATION AND ATTORNMENT
17.1 Assignment by Lessor - In the event of a sale, transfer or an
assignment of the Immovable or any part of the Immovable by the Lessor,
or an assignment by the Lessor of this Lease or any interest in the
Lease hereunder, the Lessor shall be freed of all liability with
respect to any obligations in virtue of the Lease or of the law if such
purchaser or assignee assumes the Lessor's obligations according to the
Lease or law.
17.2 Lessee's Estopel Certificates - At any time and from time to time upon
not less than 10 days prior notice at the request of the Lessor, the
Lessee shall execute and deliver, as directed by the Lessor, a
certificate of an officer of the Lessee certifying as at the date
thereof whether this lease is in full force and effect, whether or not
it has been modified (and if so in what respect), the status of annual
rent and other accounts between the Lessor and Lessee, whether or not
there are any existing defaults on the part of the Lessor of which the
Lessee has notice (and if so, specifying them) and as to any other
matters in connection with this lease in respect of which such a
certificate is reasonably requested.
17.3 Lessor's Estoppel Certificates - At any time and from time to time upon
not less than 10 days prior notice at the request of the Lessee, and
for the purposes only of a transaction contemplated by Article 17, the
Lessor shall execute and deliver, as directed by the Lessee, a
certificate of an officer of the Lessor certifying as at the date
thereof whether this lease is in full force and effect, whether or not
it has been modified (and if so in what respect), the status of annual
rent and other accounts between the Lessor and Lessee, whether or not
there are any existing defaults on the part of the Lessee which the
Lessor has notice (and if so, specifying them) and as to any other
matters in connection with this lease in respect of which such
certificate is reasonably requested.
17.4 Effect of Estoppel Certificates - Any statement delivered pursuant to
the provisions of this Article 17 may be conclusively relied upon only
by the person to which such statement is addressed but shall not
preclude any rights of the party giving such statement with respect to
defaults not set forth in such statement but of which the party giving
such statement had no actual knowledge at the date thereof as against
the other immediate party to this lease.
ARTICLE 18
DEFAULT AND RECOURSE
18.1 A default shall occur in the following cases:
a) if the Lessee does not fulfill any of its obligations pursuant
to the Lease and if this default continues:
i) in the cases of a pecuniary obligation, for more than
five (5) days following the receipt by the Lessee of
a written notice from the Lessor;
ii) in all other cases, for more than fifteen (15) days
following the receipt of a written notice from the
Lessor (unless it constitutes a default otherwise
provided for in this paragraph 18.1 or unless the
default cannot be cured within said delay, in which
case the Lessee shall have commenced to cure the
default within the prescribed delay and to continue
to do so with diligence) or within a shorter delay
stipulated in the Lease (the latter delay taking
precedence);
b) if the Lessee is the object of bankruptcy, insolvency,
dissolution or liquidation proceedings or loses control of the
property located in the Leased Premises;
c) if the Lessee makes a sale of an enterprise or if the property
located in the Leased Premises is seized and that a release
thereof is not obtained within fifteen (15) days;
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d) if the Lessee leaves the Leased Premises vacant during five
(5) consecutive days or if the Leased Premises are used by a
person who is not authorized pursuant to the Lease; or
e) if a sublease or an assignment is attempted or if the Lessee
grants a guarantee that affects the Lessor's own guaranties
provided in the Lease.
The mere lapse of the delays provided for in paragraph 18.1 or as
otherwise provided for in the Lease shall have the effect of deeming
the Lessee in default.
18.2 Default and Recourses - Each time that an event of default occurs,
subject to the other rights and recourses which are granted to the
Lessor pursuant to the Lease or law and notwithstanding any other
provision of the law, the Lessor shall have the following rights and
remedies, which shall be cumulative and not alternative:
a) the right to terminate the Lease by notice to the Lessee and
following such notice, the Lessee shall not be entitled to
remedy the default;
b) the Lessor may enter the Leased Premises as mandatary of the
Lessee, re-let them for the duration of the Term and on such
conditions which the Lessor may determine at its discretion,
collect the Rent, take possession, as mandatary of the Lessee,
of all moveable property located in the Leased Premises and,
in such a case store the moveable property at the cost and
risk of the Lessee or sell or assign it in such manner as the
Lessor deems appropriate without notice to the Lessee; make
modifications to the Leased Premises in order to facilitate
their re-letting; apply the proceeds of any sale or re-letting
to the payment of all expenses incurred by the Lessor in
connection with such re-letting or of such sale and to any
other debt of the Lessee towards the Lessor and, lastly, to
the payment of Rent in arrears or of future payments of Rent
which are to become due. The Lessee shall remain liable to the
Lessor for any deficiency;
c) the right to remedy or attempt to remedy, at the expense of
the Lessee and with no liability on the part of the Lessor,
any default of the Lessee pursuant to the Lease on behalf of
the Lessee and to enter the Leased Premises for such purposes.
d) the right to recover from the Lessee all damages suffered as
well as all expenses incurred by the Lessor pursuant to the
default of the Lessee including, if the Lessor terminates the
Lease, the right to receive as liquidated damages any
difference between the amounts that the Lessee would have paid
for the duration of the Term of the Lease following such
termination and the net amounts actually received by the
Lessor during this period with respect to the Leased Premises;
e) if the resiliation of the Lease results from or is based on
the bankruptcy or the insolvency, the right to recover from
the Lessee the full amount of Rent due and accelerated Rent
for a minimum period of three (3) months or any other longer
period permitted by law; and
f) if the Lease is terminated pursuant to the provisions of
Article 18.2, the right to recover from the Lessee the
unamortized portion of any allowance or investment for
improvements or any other inducement paid by the Lessor
pursuant to the Lease.
18.3 Indemnity - Should the Lessor retain the services of legal counsel in
connection with the non performance by the Lessee of its obligations
pursuant to these presents, the Lessee shall pay the Lessor as damages,
judicial costs, and fees of fifteen per cent (15%) of the amount of the
Rent due in connection with such legal services.
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ARTICLE 19
NOTICE
19.1 Any notice to be given under this Lease shall be sent by registered
mail or by telecopier transmission or delivered in person at the
addresses indicated below. The Lessor reserves the right to change its
address.
Notices sent by mail shall have been deemed to be received on the third
business day following the mailing thereof and those by telecopier the
business day following their transmission. The Lessee elects domicile
in the Leased Premises for all purposes in connection with these
presents.
in case of a notice to the Lessor:
SITQ Inc.
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇) ▇▇▇ ▇▇▇
Care of: Vice-President
With a copy to the Property Manager to the following address:
SITQ inc.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, (▇▇▇▇▇▇) ▇▇▇ ▇▇▇
Care of: Property Manager
in case of a notice to the Lessee
ISEE3D INC.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, (▇▇▇▇▇▇) ▇▇▇ ▇▇▇
Attention:
ARTICLE 20
TERMINATION OF LEASE
20.1 Any occupation of the Leased Premises by the Lessee after the
Termination of the Lease shall not have the effect of extending, or
expressly or tacitly renewing the Lease.
20.2 The Lessor may allow the Lessee in the event the Lessee occupies the
Leased Premises after the Termination of the Lease, to continue its
occupation pursuant to a monthly Lease in consideration of a monthly
Minimum Rent which is fifty per cent (50%) greater than the last
monthly Minimum Rent of the Term, the other terms and conditions of the
Lease remaining the same.
ARTICLE 21
UNAVOIDABLE DELAY
21.1 Except for the payment of an amount of money, each time the Lease
provides for the performance of an obligation, the obligation shall be
performed subject to Unavoidable Delay. The Lessee and the Lessor shall
be deemed not to be in default in the performance of any obligation
under this Lease if they are prevented from so doing by Unavoidable
Delay, and any period of time for the performance of such obligation
shall be extended accordingly.
The Lessee and the Lessor shall notify each other respectively without
delay at the outset of the cause, the duration and the effect, to their
knowledge, of any Unavoidable Delay.
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ARTICLE 22
MODIFICATION OF LEASE AND PERFORMANCE BY A THIRD PARTY
22.1 Modification of Lease - Any modification of the Lease shall be valid
only if expressly agreed to in writing by the Lessor, the Lessee and
the Surety (if any).
22.2 Performance by Third Party - A third party may not acquire any rights
pursuant to these presents in performing an obligation of the Lessee.
ARTICLE 23
MISCELLANEOUS
23.1 Declaration of intent - This Lease is intended to be a simple document
drafted in ordinary language. When words or expressions of a general
meaning are used, the widest possible meaning is to be given to them
unless the context clearly indicates otherwise.
23.2 Absence of Waiver - The fact that one or the other party has not
exercised any of its rights hereunder shall not constitute a waiver
thereof.
23.3 Cancellation of Previous Agreements - This Lease represents the entire
agreement between the parties in connection with the Leased Premises.
It replaces all previous documents and discussions between the parties.
23.4 Successors and Assigns - The Lease shall bind the successors and
assignees of the parties.
23.5 Brokerage Commission - The Lessee guarantees to the Lessor that the
only broker involved in this transaction was ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of
Terramont Real Estate Services Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of Exspace
Corporate Space Advisors Inc. The Lessor shall be responsible to pay
the leasing commission pertaining to the present Lease upon the terms
and conditions stipulated in a commission agreement to intervene
between the Lessor and the broker.
23.6 Conversion - The Parties to this Lease agree to the following metric
factors:
1 meter = 3.2808 feet
1 square meter = 10.7643 square feet
1 foot = 0.3048 meters
1 square foot = 0.0929 square meters
23.7 Cumulative Rights - The rights conferred to the Lessor shall not be
exclusive but shall be cumulative.
23.8 Undertaking to Cooperate - The parties agree to sign all documents and
do all things necessary or desirable in order to give effect to the
intention of the parties.
23.9 Publication of Lease - The Lessee shall have the right to publish the
Lease, after having obtained the prior approval of the Lessor as to the
form and as to the other terms of the publication, without however
mentioning any of the Lease's financial terms, failing which, the
Lessor may radiate such publication at the Lessee's cost. Such
publication shall be made solely at the Lessee's cost, including
publication fees and the cost of a published copy for the Lessor. In
cases of publication, the Lessee shall, at the Termination of the
Lease, cause the publication to be cancelled at its cost, failing which
the Lessor may do so at the expense of the Lessee.
23.10 Partial Invalidity- All of the parts of this Lease are divisible, If
for any reason whatsoever a provision thereof is judged to be illegal
or unenforceable, the other provisions of the Lease shall remain in
effect mutatis mutandis.
23.11 Interpretation - In this Lease, unless the context dictates otherwise:
(i) the masculine includes the feminine and the singular the
plural, and
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ii) the words "hereinabove" and "these presents" or any words or
expressions having similar import shall refer to the Lease in
its entirety.
23.12 Laws - This Lease shall be governed by the Laws in effect in the
province of Quebec. In addition, by these presents, all the parties
elect domicile in the Court of jurisdiction for the judicial district
of Montreal, for all judicial proceedings which may be taken in
connection with the application of the present Lease, notwithstanding
the fact that one or the other parties may have signed this Lease
outside of the judicial district of Montreal.
23.13 Late Payments - The acceptance by the Lessor of any ante-dated cheque
or of any late payment shall be considered as a means of collection
only, subject to the rights of the Lessor pursuant to these presents.
Any sums unpaid by the Lessee shall bear interest at the Prime Rate.
23.14 Solidary liability - If several persons have signed this lease, their
liability is solidary, so that each person shall be liable for all of
the obligations under this Lease.
23.15 Titles - The titles and the numbering of the Articles have been
inserted as a matter of convenience and shall not be used to interpret
the text thereof.
23.16 Time is of the Essence - All delays provided for in the Lease in
connection with an undertaking or an obligation of the Lessee or of the
Lessor are of the essence.
23.17 Protection of Personal Information - The Lessee (and, as the case may
be, any other person who has guaranteed the performance of the
obligations of the Lessee pursuant to this Lease (hereinafter referred
to as the "Guarantor")), specifically authorizes the Lessor to obtain
all information and establish a file, (if the Lessor so wishes)
relating to the solvency or other personal information which the Lessor
desires and which are relevant or necessary to the signature or
execution of the present Lease, with respect to the Lessee (or the
Guarantor, as the case may be). To this end, any person, namely
personal information agents (credit bureaus, banks, subcontractors and
suppliers) having such information or, by these presents, is authorized
to give such information to the Lessor, during the Term, and
subsequently thereto if necessary.
23.18 Prohibition to sell by auction - In the event of the Lessee's
bankruptcy, there shall be no sale by auction, performed by any
competent authority whatsoever, permitted in the Leased Premises.
ARTICLE 24
MOVABLE HYPOTHEC
24.1 Intentionally deleted.
ARTICLE 25
REGULATIONS
25.1 The Lessee shall observe the regulations respecting the use of the
Immovable, which are annexed hereto as Schedule "E", as such
regulations may be modified by the Lessor, to the extent that they are
not in contradiction with the Lease. The regulations may differ
depending on the type of business located in the Immovable but may not
be discriminatory.
ARTICLE 26
SPECIAL PRO VISIONS/SCHEDULES
26.1 The schedules form an integral part of this Lease.
26.2 TERM OF ACCEPTANCE - The Lessor's obligations relatively to the present
Lease are conditional to the Lessor's possession and peaceable
enjoyment of the Leased Premises and to its obtaining from the lessee
DIRECT SOURCE SPECIAL PRODUCTS INC., a deed of Lease cancellation, duly
signed. The Lessee covenants and agrees that any act of the lessor
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or of any of its representatives or of the Lessee, including the
remittance of the present Lease to the Lessee for signature shall not
bind the Lessor toward the Lessee.
The Lessee covenants to return duly executed copies of the Lease to the
Lessor at the latest thirty ( 30 ) days following the date the Lessee
received the Lease. If the Lessee does not respect the acceptance
delay, the Lease shall be null. Notwithstanding the foregoing, if the
Lessee remits the duly executed copies after the expiration of the said
delay, the Lessor may sign the copies and such signature shall
constitute a confirmation of the Lease.
26.3 The Parties specifically declare that they have requested the present
Lease and all documents relating thereto to be drawn up in the English
language. Les parties declarent qu'elles ont demande que le present
Bail et tous documents s'y rattachant soient rediges en langue
anglaise.
In witness whereof the Lessee acknowledges that, notwithstanding that the Lease
was drawn up and submitted by the Lessor, the Lessee has negotiated the Lease,
that it understands all of its provisions and that it was given adequate
explanations as to the nature and extent of the Lease. The Lessee has signed
these presents on the 28th day of October, 1999.
ISEE3D INC.
"Lessee"
Per:
------------------------------ -----------------------------------
Witness Morden ▇. ▇▇▇▇▇▇▇, Chairman & CEO
------------------------------
Witness
In witness whereof the Lessor has signed these presents on the 19th day of
November, 1999.
SITQ BUREAUX INC., RULIM INC. AND IMMEUBLES REGIME INC.,
duly represented by their mandatary SITQ inc.
"Lessor"
Per:
------------------------------ -----------------------------------
Witness ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Leasing Director
Per:
------------------------------ -----------------------------------
Witness ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Vice-president
Office Buildings and Business Parks
SCHEDULE "A"
GUARANTY(S) IN FAVOR OF THE LESSOR
SCHEDULE "A" to the Lease intervened in Montreal, between SITQ BUREAUX INC.,
RULIM INC. AND IMMEUBLES REGIME INC., duly represented by their mandatary SITQ
inc. (hereinafter referred to as the "Lessor") and ISEE3D Inc. (hereinafter
referred to as the "Lessee").
DEPOSIT OF A LETTER OF CREDIT
1. This Schedule relating to the deposit of a letter of credit is an
integral part of the Lease as Schedule "A". The words and expressions
used herein will have the same meaning and the same extent as those
used in the Lease.
2. As security for faithful and punctual performance from the Lessee of
all and every of its duties in virtue of the Lease, the Lessee has
remitted, upon the signature of the Lease, an unconditional and
irrevocable letter of credit (hereinafter referred to as the "Letter of
Credit") emitted by a Canadian Chartered Bank, in favour of the Lessor
for an amount of seventy-five thousand dollars ( $75,000.00). In
addition of being unconditional and irrevocable, the said Letter of
Credit shall be acceptable in form to the Lessor, permit the Lessor to
transfer such Letter of Credit to any assignee, buyer or secured
creditor of the Building and creditor of the Building and permit the
Lessor to cash the Letter of Credit even if the Lease is repudated,
cancelled or otherwise resiliated in case of bankruptcy or insolvency.
The Letter of Credit shall expire thirty (30) days after the expiration
of the Term of the Lease (including all and every periods of renewal of
the Lease), being specified that if such Letter of Credit cannot be
emitted for the whole Term of the Lease, it shall be emitted and
renewed for successive periods of at least twenty-four (24) months
each. In such case, the Lessee shall provide the Lessor, at least
thirty (30) days before each expiration date of the Letter of Credit,
with a proof of its renewal. Should the Lessee fail to do so, the
Lessee shall be automatically considered in default and the Lessor
shall immediately be entitled to cash such Letter of Credit.
3. Without affecting its other rights and recourses, the Lessor shall be
entitled to use the Letter of Credit, in part or in whole, as
reimbursement of any amount due to the Lessor by the Lessee in virtue
of the Lease and that the Lessee failed to pay when due. Following such
allocation of the Letter of Credit, the Lessee shall, within ten (10)
days after request from the Lessor to this effect, provide the Lessor
with a new Letter of Credit of the abovementioned amount. Moreover, the
Lessor shall be entitled to remit the Letter of Credit to any assignee
of its rights in the Lease or in the Leased Premises, provided that
every such assignee has assumed the duties of the Lessor regarding such
Letter of Credit. Sould the Lessor, according to the provisions of
Article "16" of the Lease, covenant that the Leased Premises be sublet
by a sublessee or that this Lease be assigned to an assignee, the
Lessor shall then be entitled to demand that the Letter of Credit be
replaced by a new Letter of Credit supplied by the assignee or by the
sublessee. Should they fail to do so, the Lessor shall be entitled to
realize or cash the Letter of Credit, as if the Lessee was in default
of its duties in virtue of the Lease, under reserve and without
prejudice to all of the Lessor's other rights, remedies and recourses.
4. Provided that the Lessee is not in default in virtue of the Lease and
that physical possession of the Leased Premises is given back to the
Lessor, the Lessor undertakes, within thirty (30) days after the
expiration of the Term of the Lease (including all and every
cancellation before date of the Lease or renewal of the Lease), to give
back to the Lessee the Letter of Credit.
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In witness whereof the Lessee has signed in Montreal, this 28th day of
October, 1999.
ISEE3D INC.
"Lessee"
Per:
------------------------------ -----------------------------------
Temoin Morden ▇. ▇▇▇▇▇▇▇, Chairman & CEO
------------------------------
Temoin
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SCHEDULE "B"
DESCRIPTION OF LAND
Westmount Square
"WESTMOUNT SQUARE" is the Immovable located in the City of Westmount, being
known as lot SIX THOUSAND AND EIGHTY-THREE (Lot 6 083) of the Official Cadastre
of the Montreal Parish of the Registration Division of Montreal on which the
buildings 1 and ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ are erected.
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SCHEDULE "C"
WORK BY THE LESSOR AND BY THE LESSEE
LESSOR'S WORK:
The Lessee acknowledges and agrees that there is no promise, declaration or
undertaking by the Lessor with respect to any alterations, remodelling, or
decoration of the Leased Premises, or installation of equipment or apparatus in
the Leased Premises and that the Lessee is taking possession and accepting the
Leased Premises "as is".
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SCHEDULE "D" PLAN OF LEASED PREMISES
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SCHEDULE "E"
REGULATIONS
1. The Lessee agrees to observe all of the following regulations and any
additional regulations as the Lessor may from time to time prescribe
with respect to the proper management of the Immovable.
1.1 These regulations shall not be incompatible with the terms of
the Lease.
1.2 Any amendment shall be communicated in writing to the Lessee.
2. Traffic
2.1 Access to the Immovable shall at all times be under the
control of the Lessor's security officer on-duty who may
require persons to identify themselves and may refuse access
for any justifiable reason;
2.2 Prohibition to Impede Traffic - The Lessee shall not leave or
allow any objects to be left that might impede the movement of
traffic in the Common Areas and Facilities of the Immovable.
2.3 Loading and Unloading - The loading and unloading of
merchandise and of furniture shall be made at the risk of the
Lessee and pursuant to instructions from the Lessor.
3. General Services. The work of the Lessee at the interior of the Leased
Premises with respect to the handling of merchandise and of furniture
shall be effected by the employees of the Lessor at the cost of the
Lessee at rates which the Lessor shall from time to time determine.
4. Public Areas. The use of the Common Areas and Facilities shall be under
the exclusive control of the Lessor.
5. Emergencies and Security
5.1 Any emergency situation shall be brought to the attention of
the Lessor's security officer.
5.2 Only the stairways and emergency exits shall be used in cases
of emergency.
5.3 Close coordination and cooperation shall be maintained between
the Lessee's and Lessor's security services, for the
protection of the Immovable.
5.4 Interruption of Services - Elevator, freight elevator and
escalator service in the Building may be interrupted for
reasons of maintenance or emergency.
5.5 No Smoking - Smoking in the elevators and freight elevators of
the Building is prohibited.
6. Mechanical and Electrical Systems
6.1 The maintenance of the private mechanical and electrical
systems of the Lessee shall be maintained by it at its costs,
unless there is an agreement to the contrary.
6.2 The allocation of costs of supplying fluids, electrical
consumption or any other source of energy shall be made by the
Lessor.
7. Vehicles and Animals
7.1 It is prohibited to bring into the Building or the Leased
Premises any animal or vehicle except for:
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a) animals or vehicles serving as guides for the blind
or otherwise handicapped persons; and
b) vehicles which may be authorized in the parking
areas, by agreement with the operator of the parking
lot and pursuant to instructions from the Lessor.
8. Machinery. Equipment and Safe Except for office equipment, no machine
or piece of equipment may be brought into the Building without the
approval of the Lessor, who may refuse their installation or who may
designate a specific area in which to place heavy objects in the Leased
Premises.
9. Illegal activities by the Lessee and Peddling. The Lessee shall not
cause a nuisance to its neighbours and shall respect the good order and
the security of the Immovable. Any peddling and soliciting in the
Immovable is strictly prohibited and the Lessee agrees to cooperate
with the Lessor in order to prevent such activities.
10. Sales and Types of Business. The sale of merchandise and of services is
prohibited without the prior approval of the Lessor.
11. Signs, Etc. The Lessee shall ensure that all signs or objects which are
visible from the exterior of the Leased Premises are in accordance with
instructions of the Lessor. All signs and advertising materials are
prohibited.
12. Advertising, Address
12.1 The words "Westmount Square" shall not be used by the Lessee
except to describe the Leased Premises or to designate the
address thereof. The words "Societe lmmobiliere Trans- Quebec
Inc.", "SITQ Immobilier" and "SITQ inc." are reserved for the
business name of the Lessor.
12.2 The Lessor reserves the right to prevent any advertising by
the Lessee which might harm the security, the reputation or
the operation of the Immovable, and, without limiting the
generality of the foregoing, the Lessor may prohibit the
Lessee from advertising any illegal activity or the sale of
any illicit or objectionable product.
12.3 The Lessor reserves the right, at any time and without notice
to the Lessee, to change the address and the postal code for
the Immovable.
13. Mechanical and Electrical Systems
13.1 Special maintenance and repair services for the mechanical and
electrical systems inside the Leased Premises shall be
performed only by the Lessor and these special services shall
be charged to the Lessee according to rates which the Lessor
shall from time to time establish.
13.2 Air-conditioning and heating services shall be provided during
Business Hours. Extra services shall be charged to the Lessee
pursuant to rates set by the Lessor from time to time.
13.3 The density of occupancy of the Leased Premises shall not
exceed one (1) person per one hundred (100) square feet of
Leasable Area.
14. Utilization of Incremental or Fan-Coil units of the Air-Conditioning
and Heating System
14.1 In order to ensure the proper functioning of the
air-conditioning system, the Lessee shall not utilize the
incremental or fan-coil units of the air-conditioning and
heating system (perimeter zone) for the storage of documents
or other items, so as not to affect the operation of said
units and said system.
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14.2 Any curtains mounted on the windows shall be placed so as not
to impede the operation of said units and said
air-conditioning system.
14.3 The Lessee shall at all times keep outside windows closed
(where applicable) and, while the air-conditioning system is
operating, keep the blinds of all windows exposed to direct
sunlight closed as well.
15. Entry Doors to Leased Premises The Lessee shall not change the access
systems without the consent of the Lessor. Should more than two keys be
required for each lock, they shall be supplied by the Lessor, at the
Lessee's expenses. The Lessee shall return all keys of the Leased
Premises to the Lessor at the Termination of the Lease.
16. Cleaning (Housekeeping) All cleaning services for office spaces and
public areas shall be performed only by the Lessor's employees, except
by written agreement to the contrary.
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SCHEDULE "F"
SPECIAL PROVISIONS
1.1 Access before Commencement of the Term
The Lessee may enter the Leased Premises before the
commencement date of the Term, as of November First (1st),
1999, for the purpose of performing improvements in the Leased
Premises or installing certain property or operating its
business (having received prior authorisation from the Lessor
to do so), but it is expressly agreed between the parties that
the Lease has to be duly signed by the Lessee before the
latter takes possession of the Leased Premises. If the Lease
is not duly signed, the Lessor may, at its sole discretion,
prohibit the access of the Leased Premises or charge, as a
penalty, the Rent to the Lessee as if the Term had commenced.
During that period, all terms and conditions of the Lease
shall take effect at the time of such occupancy and continue
to apply for the duration of such occupancy, with the
exception that the Lessee shall not be required to pay any
Rent to the Lessor for this period but shall assume its
electricity charges and all costs relating to the Lessee's
occupancy of the Leased Premises.
1.2 Rent Incentive
The Lessee agrees and accepts to pay to the Lessor the Goods
and Services Tax (GST), the Quebec Sales Tax (QST) and all
other similar taxes that the Lessor could be asked to collect
from the Lessee with regard to any incentive to rent granted
to the Lessee including without limitation Free Rent, Moving
Allowance, Access before Commencement of the Term, or other.
1.3 Parking
Provided the Lessee is not in default of its obligations
pursuant to the Lease, the Lessor agrees to provide to the
Lessee up to four (4) interior unreserved parking spaces in
the Building. The Lessee shall pay the prevailing monthly rate
for said parking spaces as established from time to time by
the parking operators. The Lessee undertakes to sign a Parking
Lease to this effect within thirty (30) days of occupation.
SCHEDULE "G"
STANDARD RESOLUTION
Excerpt from the minutes of a meeting of the Board of Directors of ISEE3D INC.
(hereinafter referred to as the "Company") held on ____th day of _______________
Be it resolved:
That the Company enters into a Lease Agreement with SITQ BUREAUX INC., RULIM
INC. AND IMMEUBLES REGIME INC., duly represented by their mandatary SITQ inc.,
for the premises located in the Building bearing civic number ▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, the whole in accordance with a draft Lease which
has been submitted and approved by the Board of Directors.
That ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman and CEO be duly authorized to enter into a
Lease for and on behalf of the Company and to sign any and all documents
necessary in order to give effect to the Lease.
I, hereby certify that the foregoing is a true copy of a resolution passed in a
meeting that has been called and held this __________ day of ___________ _____,
by all the Directors of the Company as stated in the minutes of the said meeting
and that the said resolution is hereby still in effect.
This _________ day of _______.
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secretary
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SITQ
IMMOBILIER
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SCHEDULE "H"
STATUS REPORT
PROPERTY : ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LESSOR : SITQ BUREAUX INC., RULIM INC.AND IMMEUBLES REGIME INC.
LESSEE : ISEE3D Inc.
LEASE DATED : ___________________
TO : The Lessor or any Person who is or may become or
contemplates to become a Secured Lender as well as to
any prospective purchaser of the property or any part
thereof.
THE UNDERSIGNED, the Lessee under the above Lease, hereby certifies and
represents that:
(i) The Lessee has accepted and is in possession and in occupation of the
Premises having an Area of approximately ___________ feet (__sq.ft.)
(said Area comprising of feet ( .ft. ) located on the floor of the
Shopping Centre and feet ( sq.ft. ) used for a automatic banking
machine).
(ii) The Lease has been validly executed and delivered by the Lessee (and
the Guarantor, if any) and is in force pursuant to due corporate action
properly taken by the Lessee (and the Guarantor, if any).
(iii) The Lease is presently in full force and effect and unmodified.
(iv) There is no existing default by either Lessee or Lessor pursuant to the
Lease for which a notice of default has been given.
(v) To date, the Lessee has no defenses, counter claims, or claims of
offset, deduction or compensation under the Lease or otherwise against
rents or other charges due under the Lease and no event or fact has
occurred which would give the Lessee the right or the option to
terminate the Lease prior to the expiry of the Term;
(vi) No rent under the Lease has been paid more than thirty (30) days in
advance of its due date.
(vii) The Premises are free from any construction deficiencies.
(viii) All Lessor's Work has been completed to the satisfaction of the Lessee.
The Lessee hereby certifies and represents that the above statements including
any exceptions which may have been added thereto are true and complete and may
be relied and acted upon.
DATED AT ___________________, this ___________________ day of ____________ 19
ISEE3D INC.
Per:
-----------------------
Manager
TABLE OF CONTENTS
TITLES PAGES
PARTIES 1
ARTICLE 1 DEFINITIONS, INTENT AND INTERPRETATION 1
ARTICLE 2 LEASE AND DELIVERY OF LEASED PREMISES 4
ARTICLE 3 SERVICES FURNISHED TO THE LESSEE 5
ARTICLE 4 RENT 7
ARTICLE 5 REAL ESTATE TAXES 7
ARTICLE 6 TAXES 7
ARTICLE 7 USE AND MAINTENANCE OF LEASED PREMISES 7
ARTICLE 8 LEASEHOLD IMPROVEMENTS 9
ARTICLE 9 INSURANCE 11
ARTICLE 10 ACCESS BY LESSOR TO LEASED PREMISES 12
ARTICLE 11 DAMAGE AND DESTRUCTION 13
ARTICLE 12 EXPROPRIATION 13
ARTICLE 13 DAMAGES 13
ARTICLE 14 SIGNS AND ADVERTISING 14
ARTICLE 15 COMPLIANCE WITH LAWS AND INDEMNIFICATION 14
ARTICLE 16 SUBLET AND ASSIGNMENT 15
ARTICLE 17 SUBORDINATION AND ATTORNMENT 17
ARTICLE 18 DEFAULT AND RECOURSE 17
ARTICLE 19 NOTICE 19
ARTICLE 20 TERMINATION OF LEASE 19
ARTICLE 21 UNAVOIDABLE DELAY 19
ARTICLE 22 MODIFICATION OF LEASE AND PERFORMANCE BY A THIRD PARTY 20
ARTICLE 23 MISCELLANEOUS 21
ARTICLE 24 MOVABLE HYPOTHEC 21
ARTICLE 25 REGULATIONS 21
ARTICLE 26 SPECIAL PROVISIONS/SCHEDULES 21
SCHEDULES
SCHEDULE "A" GUARANTY(IES) IN FAVOUR OF THE LESSOR
SCHEDULE "B" DESCRIPTION OF LAND
SCHEDULE "C" WORK BY THE LESSOR AND BY THE LESSEE
SCHEDULE "D" PLAN OF LEASED PREMISES
SCHEDULE "E" REGULATIONS
SCHEDULE "F" SPECIAL PROVISIONS
SCHEDULE "G" LESSEE'S RESOLUTION
SCHEDULE "H" STATUS REPORT