EXHIBIT 10.2
LEASE AGREEMENT AS OF AUGUST 21, 2000 BETWEEN ORION PROPERTIES LTD.,
AND ORLANDO CORPORATION AND HMV CANADA INC. TOGETHER WITH, CONSENT TO
ASSIGNMENT AS OF APRIL 5, 2002 BETWEEN THE COMPANY AND ORION PROPERTIES LTD.,
AND ORLANDO CORPORATION AND HMV CANADA, INC. TOGETHER WITH, ASSIGNMENT OF
LEASE AS OF APRIL 10, 2002 BETWEEN THE COMPANY AND HMV CANADA, INC.
DATED: AUGUST 21, 2000
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BETWEEN:
ORION PROPERTIES LTD., AND
ORLANDO CORPORATION
- AND -
HMV CANADA INC.
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LEASE
REGARDING 6291 ORDAN DRIVE
MISSISSAUGA, ONTARIO
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INDUSTRIAL LEASE
TABLE OF CONTENTS
SECTION
ARTICLE I - DEMISE & TERM
Premises............................................................................... 1.01
Use of Common Areas.................................................................... 1.02
Term................................................................................... 1.03
Early Access........................................................................... 1.05
Option to Extend....................................................................... 1.06
Acceptance of Premises................................................................. 1.07
Quiet Enjoyment........................................................................ 1.08
ARTICLE II - RENT
Intent of Lease........................................................................ 2.01
Basic Rent............................................................................. 2.02
Calculation of Basic Rent.............................................................. 2.03
Additional Rent........................................................................ 2.04
Deposit................................................................................ 2.05
Payments to Landlord................................................................... 2.06
Overdue Rent........................................................................... 2.07
Set-Off................................................................................ 2.08
Review of Tenant's Financial Statements................................................ 2.09
Pre-Authorized Bank Debit.............................................................. 2.10
ARTICLE III - TAXES
Taxes Payable by Landlord.............................................................. 3.01
Taxes Payable by Tenant................................................................ 3.02
Tenant's Business and Other Taxes...................................................... 3.03
Payment of Taxes....................................................................... 3.04
ARTICLE IV - OPERATING COSTS
Tenant's Covenant to Pay Operating Costs............................................... 4.01
Payment of Operating Costs............................................................. 4.02
ARTICLE V - UTILITIES
Utility Charges........................................................................ 5.01
Water Heaters.......................................................................... 5.02
Heating................................................................................ 5.03
Service Contracts...................................................................... 5.04
ARTICLE VI - MAINTENANCE, REPAIR & ALTERATIONS
Tenant to Maintain and Repair.......................................................... 6.01
Repair Where Tenant at Fault........................................................... 6.02
Alterations............................................................................ 6.03
Landlord to Maintain and Repair........................................................ 6.04
Construction Liens..................................................................... 6.05
Removal of Fixtures and Improvements................................................... 6.06
Repair on Termination.................................................................. 6.07
SECTION
ARTICLE VII - ASSIGNING AND SUBLETTING
7.01
Assigning or Subletting................................................................... 7.02
Change of Control......................................................................... 7.03
Sublet of Part of Premises................................................................ 7.04
Excess Rent............................................................................... 7.05
Mortgage of Leasehold..................................................................... 7.05
Advertising Premises...................................................................... 7.06
Disposition by Landlord................................................................... 7.07
ARTICLE VIII - USE
Use of Leased Premises.................................................................... 8.01
Rules and Regulations..................................................................... 8.02
Observance of Law......................................................................... 8.03
Waste and Nuisance........................................................................ 8.04
Signs..................................................................................... 8.05
Parking................................................................................... 8.06
Refuse and Garbage........................................................................ 8.07
Overloading Floors........................................................................ 8.08
Outside Storage........................................................................... 8.09
ARTICLE IX - INSURANCE AND INDEMNITY
Tenant's Insurance........................................................................ 9.01
Landlord's Insurance...................................................................... 9.02
Not to Affect Landlord's Insurance........................................................ 9.03
Limit of Landlord's Liability............................................................. 9.04
Limit of Tenant's Liability............................................................... 9.05
Indemnity................................................................................. 9.06
ARTICLE X - CONTROL OF COMPLEX
Control of Complex........................................................................ 10.01
ARTICLE XI- DAMAGE AND DESTRUCTION
Abatement of Rent......................................................................... 11.01
Termination............................................................................... 11.02
ARTICLE XII - DEFAULT
Events of Default......................................................................... 12.01
Right of Re-entry......................................................................... 12.02
Reletting................................................................................. 12.03
Distress.................................................................................. 12.04
Right of Landlord to Cure Defaults........................................................ 12.05
Remedies Not Exclusive.................................................................... 12.06
Non-Waiver................................................................................ 12.07
Recovery of Adjustments................................................................... 12.08
THIS INDENTURE made as of the 21st day of August, 2000,
BETWEEN:
ORION PROPERTIES LTD., AND
ORLANDO CORPORATION,
(Hereinafter collectively called the "LANDLORD")
OF THE FIRST PART
-- and --
HMV CANADA INC.
(Hereinafter called the "TENANT")
OF THE SECOND PART
ARTICLE I - DEMISE & TERM
PREMISES
1.01 WITNESSETH that in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord does demise and lease unto the Tenant and
the Tenant leases from the Landlord, the Leased Premises.
USE OF COMMON AREAS
1.02 The use and occupation by the Tenant of the Leased Premises includes the
non-exclusive right of the Tenant, its employees, agents and invitees and
persons having business with the Tenant, in common with the Landlord and all
others entitled thereto, to use the common areas on the Lands including the
driveways, sidewalks and entrances.
TERM
1.03 To have and to hold the Leased Premises for and during the term of five
(5) years commencing on the 1st day of October, 2000 (the "Commencement Date")
and ending on the 30th day of September, 2005.
If the Leased Premises are not ready for occupation by the Tenant on the
Commencement Date by reason of a delay or delays not caused or contributed to by
the Tenant or anyone acting for or on behalf of the Tenant, then Rent shall
abate and shall not accrue or be payable until the Leased Premises are ready for
occupation by the Tenant provided that the expiry of the Term shall be adjusted
in order to provide for a period of five (5) years from the date the Leased
Premises are ready for occupation by the Tenant. Any such abatement of Rent
shall be accepted by the Tenant as full and final settlement of any and all
claims which the Tenant may have by reason of the Leased Premises not being
ready for occupancy on the Commencement Date. A certificate by the Landlord's
Architect certifying that the Leased Premises are ready for occupation shall be
conclusive and binding upon the Tenant.
EARLY ACCESS
1.04 Subject to the execution and delivery by the Tenant to the Landlord of
this Lease in form acceptable to the Landlord, the Tenant shall be entitled to
have early access ("Early Access") to the Leased Premises for the period from
and including the lst day of September, 2000 to and including the 30th day of
September, 2000 for the purpose of installing telephones and complete wiring and
racking provided that such Early Access shall not interfere with or delay the
Landlord in the performance of the Landlord's Work failing which such Early
Access shall be denied. Upon taking such early access of all or any part of the
Leased Premises, the Tenant shall observe and perform all of the Tenant's
covenants and obligations set out in this Lease except that Basic Rent and Taxes
shall not be payable by the Tenant for the Early Access period prior to the
Commencement Date, provided that Additional Rent and Utilities shall be payable
by the Tenant during the Early Access period.
OPTION TO EXTEND
1.05 Provided the Lease is then in good standing and there has not been an
Event of Default at any time during the Term, the Tenant or its permitted
assignee shall have the option to extend this Lease for a further term of five
(5) years upon the same terms and conditions contained in this Lease except:
(a) There shall be no Landlord's Work or Early Access;
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(b) There shall be no further option to extend the Lease; and
(c) The Basic Rent payable by the Tenant during such extended term
shall be fair market rent as of the date of commencement of
the extended term based on similar term, premises and location
as for the Leased Premises, provided in no event shall the
Basic Rent for the extended term be less than as provided for
in the immediately preceding period. If the Landlord and the
Tenant cannot agree on the Basic Rent for the extended term at
least ninety (90) days prior to the commencement of the
extended term, the Basic Rent for such extended term shall be
determined by arbitration as hereinafter set out.
In the case of any dispute between the Landlord and the Tenant
with respect to the Basic Rent payable in any extended term,
each of the Landlord and the Tenant shall at once agree upon
the appointment of an arbitrator and shall submit the dispute
to the arbitrator for determination in accordance with the
provisions of the Arbitration Act, 1991 of Ontario. The
decision of the arbitrator so appointed shall be final and
binding upon the Landlord and the Tenant who covenant one with
the other that such dispute shall be decided by arbitration
alone and not by recourse to any court by action at law. If
within a reasonable time the Landlord and the Tenant do not
agree upon a arbitrator, the arbitrator may upon petition of
either the Landlord or the Tenant be appointed by a justice of
the Superior Court of Justice. The cost of arbitration shall
be apportioned between the Landlord and the Tenant as the
arbitrator may decide.
In order to exercise the extension option, the Tenant shall be required to give
written notice of such exercise to the Landlord not less than six (6) months
before the expiry of the initial Term of the Lease, failing which, this option
to extend will become null and void.
ACCEPTANCE OF PREMISES
1.06 The Tenant shall examine the Leased Premises before taking possession
thereof and such taking of possession shall be conclusive evidence as against
the Tenant that at the time thereof the Leased Premises were in good order and
satisfactory condition and that all promises, representations and undertakings
by or binding upon the Landlord with respect to any alteration, remodeling or
decorating of or installation of fixtures in the Leased Premises, have been
fully satisfied and performed by the Landlord. The Tenant acknowledges that the
existing leasehold improvements, if any, are acceptable and that the Tenant is
taking possession of the Leased Premises as is, subject to the Landlord's Work
as set out in Schedule "D" attached hereto.
QUIET ENJOYMENT
1.05 If the Tenant pays the Rent hereby reserved and observes and performs the
covenants on its part contained in this Lease, then the Tenant may peaceably
possess and enjoy the Leased Premises for the Term hereby granted without
disturbance from the Landlord or any other party lawfully claiming by, from or
under the Landlord.
ARTICLE II - RENT
INTENT OF LEASE
2.01 The Tenant acknowledges that it is intended and agreed that this is a
completely carefree net lease for the Landlord except as expressly hereinafter
set out and it is the mutual intention of the parties hereto that the Basic Rent
herein provided to be paid shall be net to the Landlord clear of all taxes,
costs, charges, expenses and outlays arising from or relating to the Complex and
that the Tenant shall bear its Proportionate Share of all costs relating to the
operation, maintenance and repair of the Complex (save only as otherwise
specifically set out in this Lease) including, and without limiting the
generality of the foregoing, the Tenant's Proportionate Share of Taxes and
Operating Costs and all taxes, costs, charges, expenses and outlays of any
nature or kind whatsoever relating to the Leased Premises, the use and occupancy
thereof, the contents thereof and the business carried on therein. Any amount
and any obligation which is not expressly declared herein to be that of the
Landlord pertaining to the Complex or the Leased Premises shall be deemed to be
the obligation of the Tenant to be performed by or at the Tenant's expense.
Charges of a kind personal to the Landlord such as taxes assessed upon the
income of the Landlord and principal and interest payments to be made by the
Landlord in satisfaction of mortgages now or hereafter registered against the
Complex, shall not be the responsibility or obligation of the Tenant.
BASIC RENT
2.02 Yielding and paying therefor yearly and every year during the Term unto
the Landlord as Basic Rent for the Leased Premises in lawful money of Canada:
(a) from and including the Commencement Date to and including the
30th day of September, 2002 (the "First Rental Period") the
sum of $157,500.00 per annum to be paid in advance, in equal
consecutive monthly installments of $13,125.00 on the first
day of each and every month during the First Rental Period to
the Landlord, the first of such payments to be made on the
Commencement Date; and
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(b) from and including the 1st day of October, 2002 to and
including the 30th day of September, 2005 (the "Second Rental
Period") the sum of $165,375.00 per annum to be paid in
advance, in equal consecutive monthly installments of
$13,781.25 on the first day of each and every month of the
Second Rental Period to the Landlord, the first of such
payments to be made on the lst day of October, 2002.
If the Term commences on any day other than the first or ends on any day other
than the last day of a month, then Basic Rent for the fractions of a month at
the commencement and at the end of the Term shall be adjusted pro rata on a per
diem basis.
CALCULATION OF BASIC RENT
2.03 The Basic Rent is calculated on the basis of the Rentable Area of the
Leased Premises being 31,500 square feet multiplied by: (a) $5.00 per square
foot per annum during the First Rental Period; and (b) by $5.25 per square foot
per annum during the Second Rental Period. The certificate of the Landlord's
Architect regarding the measurement of the Rentable Area of the Leased Premises
shall be conclusive and binding upon the Tenant. For purposes of calculating
Rent, the actual Rentable Area of the Leased Premises shall not exceed 32,000
square feet.
ADDITIONAL RENT
2.04 The Tenant shall pay Additional Rent due and owing to the Landlord within
ten (10) days' of written demand therefor or as otherwise hereinafter expressly
set out and all other Additional Rent on the due date thereof.
DEPOSIT
2.05 The Landlord acknowledges receipt of:
(a) $11,360.00 (exclusive of GST) to be held by the Landlord and
applied without interest on account of part of the Basic Rent
for the first month of the Term; and
(b) $13,781.25 to be held by the Landlord as security for the full
and faithful performance by the Tenant of all the agreements,
terms, covenants and conditions herein set forth and applied
against expenses or other costs or damages incurred by the
Landlord and to be payable as liquidated damages and not as
penalty, upon forfeiture, default or early termination,
without prejudice to any further claims by the Landlord for
damages and/or any remedy for recovery thereof. In the event
the Tenant observes and performs the terms and conditions on
its part under this Lease, such monies shall be applied
without interest on account of the Basic Rent for the last
month of the Term.
PAYMENTS TO LANDLORD
2.06 All payments to be made by the Tenant to the Landlord under this Lease
shall be made at the address hereinafter designated or, at such other place or
places as the Landlord may designate in writing, or to such agent of the
Landlord as the Landlord may from time to time direct.
OVERDUE RENT
2.07 The Tenant covenants to pay the Basic Rent and all other charges provided
for in this Lease on their respective due dates in full. The Tenant shall pay
the Landlord interest on all overdue Rent, all such interest to be calculated
from the date upon which the amount is first due hereunder until actual payment
thereof and at a rate being the lesser of (i) three percent (3%) per annum in
excess of the minimum lending rate charged to prime commercial borrowers by the
Landlord's bank from time to time; and (ii) the maximum rate permitted by law.
SET-OFF
2.08 All Rent payable by the Tenant to the Landlord shall be paid without any
deduction, set-off or abatement whatsoever except as hereinafter expressly
provided.
REVIEW OF TENANT'S FINANCIAL STATEMENTS
2.09 If the Tenant is late in the payment of any Rent (or any part thereof) in
any two (2) consecutive months or more than twice in any twelve (12) month
period, then the Tenant shall, at its own cost and expense, forthwith provide
the Landlord upon demand with current audited financial statements (provided
however that in the case of the Tenant in use and occupation of the Leased
Premises being HMV Canada Inc. such statements need only be certified by the
chief financial officer of HMV Canada Inc. as being correct and accurate) and
such other financial records and books of account of the Tenant as may be
required by the Landlord so as to adequately enable it to determine to its
satisfaction the financial status of the Tenant.
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PRE-AUTHORIZED BANK DEBIT
2.10 If the Tenant is late in the payment of any Rent (or any part thereof) in
any two (2) consecutive months' or more than twice in any twelve (12) month
period, then the Tenant shall forthwith provide the Landlord upon demand with
such written authorizations as may be required from time to time to debit the
Tenant's bank account in favour of the Landlord for outstanding amounts owing by
the Tenant to the Landlord under the Lease.
ARTICLE III - TAXES
TAXES PAYABLE BY LANDLORD
3.01 The Landlord shall pay the Taxes charged on the Complex to the applicable
taxing authority, subject to reimbursement by the Tenant as hereinafter set out.
The Landlord shall have no obligation to contest or litigate the imposition of
any Taxes. The Landlord may defer payment of Taxes to the extent permitted by
law if it diligently pursues or causes to be pursued the contest or appeal of
the Taxes.
TAXES PAYABLE BY TENANT
3.02 (a) If there is no separate assessment for Taxes with respect to
the Leased Premises, or if there is a separate assessment, but
such separate assessment, together with all other separate
assessments relating to the Complex, do not aggregate the
total assessment for the Taxes for the Complex, then until
such time as there is a separate assessment for Taxes with
respect to the Leased Premises which, together with all other
such separate assessments, aggregate the total assessment for
Taxes for the Complex, and the Landlord so directs as set out
in paragraph (b) of this Section 3.02, the Tenant shall pay as
Additional Rent its Proportionate Share of the Taxes for the
Complex, adjusting the occupied tax rate for the Tenant's
specific use of the Leased Premises, provided that the
Landlord, at its option, may apportion the total assessment
for Taxes for the Complex amongst the leaseable premises of
the Complex, including the Leased Premises, based on generally
accepted real estate appraisal practices. If there is no
separate assessment for Taxes as herein provided and the
Complex is not fully assessed as a commercial or industrial
property for determination of Taxes in any Year, then the
Landlord shall adjust the Taxes to an amount that would have
been determined if the Complex were fully assessed as an
occupied commercial or industrial property. If the Leased
Premises are at any time during the Term assessed for the
support of Separate Schools or if the Taxes are increased by
reason of any installations made in or upon or any alterations
made in or to the Leased Premises by the Tenant or by the
Landlord on behalf of the Tenant, the Tenant shall pay the
amount of such increase forthwith to the Landlord upon receipt
of notice thereof.
(b) If there is a separate assessment for Taxes with respect to
the Leased Premises, (which separate assessment shall be
deemed to include the valuation of the Leased Premises as
determined, from time to time, by the assessor for realty
taxation purposes of the Complex, as evidenced by such
documentation (including, without limitation, the assessor's
valuation and/or working papers) that may be made available to
the Landlord, from time to time) and if such separate
assessment together with all other separate assessments for
the Complex aggregate the total assessment for Taxes for the
Complex, and if the Landlord so directs, the Tenant shall pay
as Additional Rent the amount calculated by multiplying the
assessment for the Leased Premises by the applicable tax rate
pertaining to the Tenant's use of the Leased Premises on an
occupied basis, which amount shall, for the purposes of this
paragraph only and notwithstanding anything else herein
contained, be the Tenant's "Proportionate Share" of Taxes for
the Complex.
(c) The Landlord estimates that the Taxes for the fiscal year 2000
will be approximately $1.85 per Rentable square foot.
TENANT'S BUSINESS AND OTHER TAXES
3.03 In addition to the Taxes payable by the Tenant pursuant to Section 3.02,
the Tenant shall pay to the lawful taxing authorities or to the Landlord if the
Landlord so directs:
(a) all taxes, rates, duties, assessments and other charges that
are levied, rated, charged or assessed against or in respect
of all improvements, equipment and facilities of the Tenant on
or in the Leased Premises or the Complex or any part thereof;
(b) every tax and license fee which is levied, rated, charged or
assessed against or in respect of and every business carried
on in the Leased Premises or in respect of the use or
occupancy thereof or any part of the Lands by the Tenant and
every subtenant or licensee of the Tenant or against the
Landlord on account of its interest in the Complex, and
whether in any case, any such taxes, rates, duties,
assessments or license fees are rated, charged or assessed by
any federal, provincial, municipal, school or other body
during the Term;
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(c) the full amount of any taxes in the nature of a business
transfer tax, value added tax, sales tax or any other tax
levied, rated, charged or assessed in respect of the Rent
payable by the Tenant under this Lease or in respect of the
rental of space under this Lease, whether characterized as a
goods and services tax, sales tax, value added tax, business
transfer tax or otherwise; and
(d) Capital Tax in respect of the Leased Premises.
PAYMENT OF TAXES;
3.04 (a) The Landlord shall be entitled at any time or times in any
Year, upon at least fifteen (15) days' notice to the Tenant to
require the Tenant to pay to the Landlord the Tenant's
Proportionate Share of the Taxes for such Year in equal
monthly installments. Such monthly amount shall be determined
by dividing the Tenant's Proportionate Share of Taxes by the
number of months for the period from January lst in each Year
of the Term until the due date of the final installment of
Taxes as established by the applicable taxing authority from
time to time in each Year ("Installment Period") and shall be
paid by the Tenant to the Landlord, monthly as Additional
Rent, on the date for payment of monthly rental payments
during the Installment Period. The Landlord shall be entitled
subsequently during such Year, upon at least fifteen (15)
days' notice to the Tenant, to revise its estimate of the
amount of increase in such Taxes and the said monthly
installment shall be revised accordingly. All amounts received
under this provision in any Year on account of the estimated
amount of such Taxes shall be applied in reduction of the
actual amount of such Taxes for such Year. If the amount
received is less than the Tenant's Proportionate Share of the
actual Taxes, the Tenant shall pay any deficiency to the
Landlord as Additional Rent within fifteen (15) days'
following receipt by the Tenant of notice of the amount of
such deficiency. If the amount received is greater than the
Tenant's Proportionate Share of the actual Taxes, the Landlord
shall either refund the excess to the Tenant as soon as
possible after the end of the Year in respect of which such
payments were made or, at the Landlord's option, shall apply
such excess against any amounts owing or becoming due to the
Landlord by the Tenant.
(b) Taxes payable pursuant to paragraphs (a) and (b) of Section
3.03 shall be paid by the Tenant when due if separate tax
bills are issued and otherwise shall be paid to the Landlord
within ten (10) days' written demand therefor.
(c) Taxes payable pursuant to paragraphs (c) and (d) of Section
3.03 shall be paid to the Landlord within ten (10) days'
written demand therefor or at such time or times as the
Landlord from time to time determines by notice in writing to
the Tenant.
(d) If the Term of this Lease commences or ends on any day other
than the first or last day, respectively, of a Year, the
Tenant shall be liable only for the portion of the Taxes for
such Year as falls within the Term, determined on a per diem
basis.
ARTICLE IV - OPERATING COSTS
TENANT'S COVENANT TO PAY OPERATING COSTS
4.01 The Tenant covenants to pay to the Landlord as Additional Rent the
Tenant's Proportionate Share of the Operating Costs for the Year during each
Year of the Term in accordance with the provisions of Section 4.02.
The Landlord estimates that the Operating Costs for the fiscal year 2000 will be
approximately $1.00 per Rentable square foot.
PAYMENT OF OPERATING COSTS
4.02 The Landlord shall be entitled at any time or times in any Year, upon at
least fifteen (15) days' notice to the Tenant to require the Tenant to pay to
the Landlord monthly, on the date for payment of monthly rental installments, as
Additional Rent, an amount equal to one-twelfth (1/12) of the amount estimated
by the Landlord to be the amount of the Tenant's Proportionate Share of the
Operating Costs for such Year. The Landlord shall be entitled subsequently
during such Year, upon at least fifteen (15) days' notice to the Tenant, to
revise its estimate of the amount of the Tenant's Proportionate Share of the
Operating Costs and the said monthly installment shall be revised accordingly.
All amounts received under this provision in any Year on account of the
estimated amount of the Tenant's Proportionate Share of the Operating Costs
shall be applied in reduction of the actual amount of the Tenant's Proportionate
Share of the Operating Costs for such Year. Within a reasonable time after the
end of the period for which the estimated payments have been made, the Landlord
shall deliver to the Tenant a written statement setting out in reasonable detail
the amount of the Operating Costs for such period calculated on the basis of a
calendar year and the Tenant's Proportionate Share thereof. If the amount
received is less than the actual amount of the Tenant's Proportionate Share of
the Operating Costs for such Year, the Tenant shall pay any deficiency to the
Landlord as Additional Rent within fifteen (15) days following receipt by the
Tenant of notice of the amount of such deficiency. If the amount received is
greater than the actual amount of the Tenant's Proportionate Share of the
Operating Costs, the Landlord shall either refund the excess to the Tenant as
soon as possible after the end of the Year in respect of which such payments
were made, or at the Landlord's option, shall apply such excess against any
amounts owing or becoming due to the Landlord by the Tenant.
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The Tenant shall have sixty (60) days' after receipt of any such statement to
dispute such statement by way of notice in writing to the Landlord. Failing such
notice within such sixty (60) day period, such statement shall be conclusive and
binding upon the Tenant. In the event the Tenant disputes any such statement by
notice in writing to the Landlord within not more than sixty (60) days' after
receipt of such statement, then the Landlord shall have its accountant prepare a
report at the Tenant's sole cost and expense (to be added to Additional Rent
hereunder), in respect of the Operating Costs for the period dealt with in such
statement. Any such report shall be conclusive and binding upon the Tenant.
ARTICLE V - UTILITIES
UTILITY CHARGES
5.01 The Tenant shall pay to the suppliers thereof on the due dates, all
charges for electric current and all other utilities supplied to or used in
connection with the Leased Premises.
WATER HEATERS
5.02 In the event that the Tenant shall require a hot water heater or heaters,
the Tenant agrees to lease same from Consumers' Gas Company or Ontario Hydro and
to pay all charges as same become due for rental or work services required in
connection therewith.
HEATING
5.03 The Tenant covenants and agrees to heat the Leased Premises at its own
expense to a reasonable temperature to prevent the occurrence of any damage to
the Leased Premises by cold or frost.
SERVICE CONTRACTS
5.04 The Tenant covenants and agrees to take out a standard servicing contract
with a capable and reputable company for the service and maintenance of the
heating units and furnaces and air-conditioning equipment serving the Leased
Premises, such contract to include the monthly cleaning of exchangers and
replacement of filters, and to keep such contract in force at its own cost
throughout the Term. The Tenant agrees to provide the Landlord with a copy of
such servicing contract.
ARTICLE VI - MAINTENANCE, REPAIR & ALTERATIONS
TENANT TO MAINTAIN AND REPAIR
6.01 Subject only to Section 6.04 hereof, the Tenant shall at its own cost
repair, replace, maintain and keep the Leased Premises and every part thereof,
including without limitation the Leasehold Improvements and the heating,
ventilating and air conditioning equipment serving the Leased Premises, fixtures
and furnishings (whether or not installed or furnished by the Tenant), in good
and substantial repair and condition as a prudent owner would do, damage by fire
and any other perils against which the Landlord is required under this Lease to
insure, only excepted. The Tenant agrees that the Landlord may enter and view
the state of repair and condition and that the Tenant shall repair in accordance
with notice in writing from the Landlord; provided that if the Tenant neglects
to so maintain or to make such repairs or replacements promptly after notice,
the Landlord may, at its option, do such maintenance or make such repairs or
replacements at the expense of the Tenant, and in any and every such case the
Tenant covenants with the Landlord to pay to the Landlord forthwith as
Additional Rent all sums which the Landlord may have expended in doing such
maintenance and making such repairs and/or replacements; provided further that
the doing of such maintenance or the making of any such repairs or replacements
by the Landlord shall not relieve the Tenant from its obligation to maintain,
repair and replace.
REPAIR WHERE TENANT AT FAULT
6.02 If the Lands or any improvements thereto become damaged or contaminated
through the willful act, negligence, carelessness, misuse or any other fault of
the Tenant, its agents, employees, licensees or invitees, the expense of the
necessary repairs, replacements or alterations shall be borne by the Tenant who
shall pay the same to the Landlord forthwith upon demand. The obligations of the
Tenant set forth herein shall survive the expiry or other termination of the
Term.
ALTERATIONS
6.03 The Tenant shall not, without the prior written approval of the Landlord
(which shall not be unreasonably withheld or delayed with respect to
non-structural Changes that do not directly affect or involve the Base Building
Systems and cost $10,000.00 or less), make any installations, alterations,
additions, partitions, repairs or improvements ("Changes") in or to the Leased
Premises, including, without limitation, doing anything which might affect the
structural portions of the Leased Premises or electrical, lighting, heating,
ventilating, air-conditioning, sprinkler, fire protection or other systems
therein (the "Base Building Systems"). The Tenant's request for approval shall
be in writing and accompanied by an adequate description of the contemplated
work, and where appropriate, working drawings and specifications therefor; the
Landlord's costs of having its architects, engineers or others examine such
drawings and specifications shall be payable by the Tenant upon demand as
Additional Rent; the Landlord may require that any or all such work be done by
the Landlord's
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contractors or workmen or by contractors or workmen engaged by the Tenant but
first approved by the Landlord. All such work shall be subject to inspection by
and the reasonable supervision of the Landlord and shall be performed in
accordance with all applicable laws and any reasonable conditions (including but
not limited to a reasonable supervision fee of the Landlord to be paid by the
Tenant) and regulations imposed by the Landlord, and shall be completed in a
good and workmanlike manner and with reasonable diligence in accordance with the
approvals given by the Landlord. Any connections of apparatus to the base
electrical, plumbing, heating, ventilating or air-conditioning systems shall be
deemed to be an alteration within the meaning of this Section. The Tenant shall,
at its own cost and before commencement of any work, obtain all necessary
building or other permits and keep same in force.
LANDLORD TO MAINTAIN AND REPAIR
6.04 The Landlord shall maintain and repair, as would a prudent owner, the
roof membrane of the Building (the "Roof Work") all at the Tenant's cost and
expense. The Tenant shall, forthwith upon demand, pay to the Landlord the costs
and expenses incurred by the Landlord from time to time in connection with the
Roof Work, plus a management fee of fifteen percent (15%) of such costs and
expenses.
CONSTRUCTION LIENS
6.05 The Tenant covenants to pay promptly all its contractors and material men
and do any and all things necessary to minimize the possibility of a lien
attaching to the Leased Premises or the Lands or any part thereof and, should
any such lien be made or filed, the Tenant shall discharge the same forthwith
(after notice thereof is given to the Tenant) at the Tenant's expense. In the
event the Tenant shall fail to cause any such lien to be discharged as
aforesaid, then, in addition to any other right or remedy of the Landlord, the
Landlord may, but it shall not be so obligated, discharge same by paying the
amount claimed to be due into Court or directly to any such lien claimant and
the amount so paid by the Landlord and all costs and expenses including but not
limited to solicitor's fees (on a solicitor and client basis), incurred for the
discharge of such lien shall be due and payable by the Tenant to the Landlord as
Additional Rent on demand.
REMOVAL OF FIXTURES AND IMPROVEMENTS
6.06 Leasehold Improvements shall immediately become the property of the
Landlord upon affixation or installation without compensation therefor to the
Tenant but the Landlord is under no obligation to repair, maintain or insure
Leasehold Improvements. Leasehold Improvements shall not be removed from the
Leased Premises either during or at the expiration or earlier termination of the
Term, except that the Tenant shall, at the end of the Term remove such Leasehold
Improvements installed or constructed by or on behalf of the Tenant as the
Landlord may require to be removed, provided that the Tenant shall not be
required to remove any Change made to the Leased Premises after the Commencement
Date which the Landlord has approved prior to their installation as not
requiring removal. The Tenant may, during the Term, remove its trade fixtures
provided that the Tenant is not in default under this Lease and such trade
fixtures are immediately replaced by trade fixtures of equal or better value.
The Tenant shall at the expiration or earlier termination of the Term remove its
trade fixtures as the Landlord may require. Any removal of Leasehold
Improvements and/or the Tenant's trade fixtures shall be done at the Tenant's
sole cost and expense and the Tenant shall forthwith repair at its own cost any
damage caused to the Leased Premises or the Building or any part thereof by the
installation or removal of Leasehold Improvements and/or trade fixtures. If the
Tenant does not remove its trade fixtures at the expiration or earlier
termination of the Term, then the trade fixtures shall, at the option of the
Landlord, become the property of the Landlord and may be removed from the Leased
Premises and/or sold or otherwise disposed of by the Landlord in such manner as
it deems advisable. For greater certainty, the Tenant's trade fixtures shall not
include any heating, ventilating or air-conditioning equipment or other building
services or floor covering affixed to the floor of the Leased Premises. The
obligations of the Tenant set forth in this Section shall survive the expiry or
other termination of the Term.
REPAIRS ON TERMINATION
6.07 At the expiration or sooner termination of the Term the Tenant shall, at
its own expense:
(a) deliver up possession of the Leased Premises to the Landlord
in the same condition in which the Tenant is required under
this Lease to repair and maintain the Leased Premises,
together with all Leasehold Improvements which the Tenant is
required or permitted to leave therein or thereon free and
clear of all encumbrances and in a clean and tidy condition
and free of all rubbish and to deliver to the Landlord all
keys and security devices;
(b) remove from the Complex, at the option of and to the
satisfaction of the Landlord, all machine bases, cabling
(electrical or otherwise), piping (pneumatic, water or
otherwise) and wiring (electrical, computer or otherwise)
installed by or on behalf of the Tenant;
(c) remove any and all materials which may be deemed by any
applicable legislation as contaminated or hazardous (and which
have been brought onto the Complex by or on behalf of the
Tenant or which are a result of the Tenant's use or occupation
of the Leased Premises), and clean up any and all resultant
contamination in compliance with all applicable laws and
regulations; and
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(d) remove from the Complex at the option of the Landlord, in
compliance with all applicable laws and regulations, any and
all storage and/or holding tanks (whether above or below
ground) installed by or on behalf of the Tenant and all pits
and trenches created by or on behalf of the Tenant.
The covenants contained in this Section shall survive the expiry or
other termination of the Term.
ARTICLE VII - ASSIGNING & SUBLETTING
ASSIGNING OR SUBLETTING
7.01 (a) The Tenant shall not assign this Lease or sublet or franchise,
license, grant concessions in, or otherwise part with or share
possession of the Leased Premises, or any part thereof, (each
of the foregoing hereinafter referred to as a "Transfer")
without the prior written consent of the Landlord which shall
not be unreasonably withheld; at the time the Tenant requests
such consent the Tenant shall deliver to the Landlord such
information in writing (the "required information") as the
Landlord may reasonably require, including, without
limitation, a copy of the proposed offer or agreement, if any,
to Transfer and the name, address and nature of business and
evidence as to the financial strength of the proposed assignee
or subtenant or other user (any of the foregoing hereinafter
referred to as a "Transferee"); upon receipt of such request
and all required information, the Landlord shall have the
right, exercisable within fourteen (14) days' after such
receipt, to terminate this Lease if the request relates to all
of the Leased Premises or, if the request relates to a portion
of the Leased Premises only, the Landlord shall have the right
to terminate this Lease with respect to such portion and the
Rent payable by the Tenant under this Lease shall abate in the
proportion that the area of the portion of the Leased Premises
for which this Lease is terminated bears to the area of the
Leased Premises. If the Landlord exercises such right, the
Tenant shall surrender possession of the Leased Premises or
such portion thereof, as the case may be, not less than sixty
(60) days and not more than ninety (90) days following the
Landlord's notice of exercise of its right hereunder in
accordance with all the provisions of this Lease relating to
the surrender of the Leased Premises at the expiration of the
Term and all Rent and other charges shall be deemed to be
adjusted accordingly and the Lease shall be deemed to be
amended accordingly, as of the date of actual surrender. If
the Landlord does not exercise such right, then the Landlord's
prior written consent shall not be unreasonably withheld
provided that if the Landlord's consent is required within
fifteen (15) days from the date of the Tenant's request the
Landlord may unreasonably withhold its consent.
Notwithstanding anything else herein contained, in no event
shall any Transfer of this Lease release or relieve the Tenant
in any regard whatsoever from any of its obligations or
liabilities under or in respect of this Lease.
PROVIDED however, and it is made a condition to any Transfer
that:
(i) The proposed Transferee of this Lease shall agree in writing
to assume and perform all of the terms, covenants, conditions
and agreements by this Lease imposed upon the Tenant herein in
a form to be approved by the solicitor for the Landlord;
(ii) The Tenant shall pay the Landlord all legal fees in connection
with the Transfer;
(iii) The consent of the Landlord is not a waiver of the requirement
of the Landlord's consent for subsequent Transfers;
(iv) The acceptance by the Landlord of Rent from a Transferee
without the Landlord's consent shall not constitute a waiver
of the requirement of such consent nor shall it constitute an
acceptance of such party as the Tenant;
(v) The Landlord may, at its option, cancel (i) any options to
renew the Lease or extend the Term provided that in the case
of an assignment consented to by the Landlord, the Landlord
may not cancel such option; and/or (ii) any rights of first
refusal or first opportunity on additional space;
(vi) If the Transfer of the Leased Premises does not take place
within sixty (60) days of the giving of consent by the
Landlord the consent shall, at the Landlord's option, expire
and become null and void; and
(vii) If the Lease is disaffirmed, disclaimed or terminated by any
trustee in bankruptcy of a Transferee, the original Tenant
named in this Lease will be deemed on notice from the Landlord
given within sixty (60) days from the date of such
disaffirmation, disclaimer or termination to have entered into
a Lease with the Landlord containing the same terms and
conditions as in this Lease.
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(b) If a Transfer occurs without the consent of the Landlord when
required, the Landlord may collect Rent from the party in
whose favour the Transfer was made and apply the net amount
collected to the Rent herein reserved but no such Transfer
will be considered a waiver of this covenant or the acceptance
of the party in whose favour the Transfer was made as a tenant
hereunder.
(c) The Landlord shall not be liable for any claims or actions by
or for any damages, liabilities, losses or expenses of the
Tenant arising out of the Landlord unreasonably withholding
its consent to any Transfer and the Tenant's only recourse
shall be to bring an application for a declaration that the
Landlord shall grant its consent to such Transfer.
(d) Notwithstanding anything to the contrary contained in this
Lease, the Tenant shall have the right, without consent but on
prior written notice to the Landlord, to effect a Transfer to
an affiliate of the Tenant (as that term is defined in the
Business Corporations Act (Ontario)) provided that such
Transferee signs and delivers to the Landlord prior to the
date of such Transfer, the Landlord's form of lease assumption
agreement (to be prepared by the Landlord's solicitor at the
reasonable cost of the Tenant) in accordance with the
provisions of this Lease. In no event shall such Transfer of
the Lease release or relieve the Tenant from any of its
obligations or liabilities under or in respect this Lease.
CHANGE OF CONTROL
7.02 If the Tenant is a private corporation and any part or all of the
corporate shares shall be transferred by sale, assignment, amalgamation,
bequest, inheritance, operation of law or other disposition or dispositions so
as to result in a change in the control of the corporation, such change of
control shall be considered a Transfer of this Lease and shall be subject to the
provisions of Section 7.01 hereof. The Tenant shall make available to the
Landlord upon its request for inspection and copying, all books and records of
the Tenant, any assignee or subtenant and their respective shareholders which,
alone or with other data, may show the applicability or inapplicability of this
Section.
So long as the Tenant is HMV Canada Inc. and is not in default of this Lease, a
change in the effective voting control of the Tenant effected by a transfer of
shares of the Tenant in a recognized stock exchange in Canada or the United
States of America shall not require the consent of the Landlord however the
Tenant shall provide notice thereof to the Landlord.
SUBLET OF PART OF PREMISES
7.03 Notwithstanding anything else to the contrary provided in this Lease
and/or any act or rule of law or regulation now or hereafter in force to the
contrary, the Landlord may in its sole and unfettered discretion refuse to give
its consent to any Transfer by the Tenant of less than the whole of the Leased
Premises resulting in more than two (2) separate premises therein.
EXCESS RENT
7.04 In the event that the Basic Rent payable under any Transfer is in excess
of the Basic Rent reserved hereunder or is in excess of the proportionate Basic
Rent reserved in the event of a sublease of part of the Leased Premises, whether
the excess be in the form of cash, goods or services from the Transferee or
anyone acting on its behalf, the Tenant shall pay all of such excess to the
Landlord immediately upon receipt thereof and the Tenant shall have the right to
deduct and any brokerage fees incurred by the Tenant related to such sublease
prior to making payments to the Landlord; in the event that such excess is
represented by goods or services rendered to the Tenant or its nominee, the
value of those goods or services shall be determined by the Landlord and Tenant
and that value shall be paid in cash to the Landlord immediately upon such
determination.
MORTGAGE OF LEASEHOLD
7.05 The Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
all or any portion of the Tenant's interest in this Lease or the Leasehold
Improvements.
ADVERTISING PREMISES
7.06 The Tenant shall not advertise or allow the Leased Premises or a portion
thereof to be advertised as being available for assignment, sublease or
otherwise without the prior written approval of the Landlord as to the form,
size, content and location of such advertisement, which approval shall not be
unreasonably withheld, provided that (i) no such advertising shall contain any
reference to the Rent for the Leased Premises and (ii) any such advertising
shall be on a standard ground-mounted real estate sign.
DISPOSITION BY LANDLORD
7.07 If the Landlord sells or leases the Lands, the Building or any part
thereof, or assigns this Lease, and to the extent that the covenants and
obligations of the Landlord under this Lease are assumed by the purchaser,
lessee or assignee, the Landlord, without further written agreement, will be
discharged and relieved of liability under the said covenants and obligations.
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ARTICLE VIII - USE
USE OF LEASED PREMISES
8.01 (a) Subject to paragraph (b) of this Section, the Tenant shall not
use the Leased Premises nor allow the Leased Premises to be
used for any purpose other than office and warehouse
distribution of non-hazardous and environmentally friendly
products, but only to the extent (i) in compliance with the
provisions of this Lease and (ii) permitted by all applicable
laws, by-laws and other governmental regulations from time to
time in force.
(b) The Tenant covenants to not use or permit the Leased Premises
to be used for any retail sales whatsoever.
RULES AND REGULATIONS
8.02 The Tenant and its employees and all persons visiting or doing business
at the Leased Premises shall be bound by and shall observe and perform all rules
and regulations made by the Landlord from time to time in respect of the Lands.
All such rules and regulations shall be deemed to be incorporated into and form
part of this Lease.
OBSERVANCE OF LAW
8.03 The Tenant shall comply promptly with and conform to the requirements of
all applicable statutes, by-laws, laws, regulations, ordinances and orders from
time to time or at any time in force during the Term and affecting the
condition, maintenance, repair, use or occupation of the Leased Premises (or
equipment therein) and with every applicable regulation, order and requirement
of the Insurance Advisory Organization or any body having similar functions or
of any liability or fire insurance company by which the Landlord and the Tenant
or either of them may be insured at any time during the Term and, in the event
of the default of the Tenant under the provisions of this Section, the Landlord
may itself comply with any such requirements as aforesaid and the Tenant will
forthwith pay all costs and expenses incurred by the Landlord in this regard and
the Tenant agrees that all such costs and expenses shall be recoverable by the
Landlord as if the same were Additional Rent reserved and in arrears under this
Lease.
WASTE AND NUISANCE
8.04 (a) The Tenant shall not do or suffer any waste, damage,
disfiguration or injury to the Leased Premises or the fixtures
and equipment thereof and shall not use or permit to be used
any part of the Leased Premises for any dangerous, noxious or
offensive trade or business and shall not do anything or
permit anything to be done upon or about the Leased Premises
nor permit anything to be brought thereon which may reasonably
be deemed to be a nuisance, annoyance, grievance, damage or
disturbance to the occupiers or owners of the Building and/or
the Lands, or of adjacent lands or premises, nor do or permit
anything to be done therein which, in the opinion of the
Landlord acting reasonably, is detrimental to the Building,
and the Tenant shall take every reasonable precaution to
protect the Leased Premises from danger of fire, water damage
or the elements and shall keep the Leased Premises and the
Lands free of hazardous waste and contamination.
(b) The Tenant covenants and agrees to utilize the Leased Premises
and operate its business in a manner so that no part of the
Leased Premises or surrounding lands are used to generate,
manufacture, refine, treat, transport, store, handle, dispose
of, transfer, produce or process any Hazardous Substances,
except in strict compliance with all applicable federal,
provincial and municipal statutes, by-laws and regulations,
including without limitation, environmental, land use and
occupational and health and safety laws, regulations,
requirements, permits, statutes, by-laws and regulations.
Further the Tenant hereby covenants and agrees to indemnify
and save harmless the Landlord and those for whom the Landlord
is in law responsible from any and all losses, costs, claims,
damages, liabilities, expenses or injuries caused or
contributed to by any Hazardous Substances which are at any
time located, handled, placed, stored or incorporated in any
part of the Leased Premises. The Tenant hereby agrees that the
Landlord or its authorized representatives shall have the
right at the Tenant's expense, payable as Additional Rent
within fifteen (15) days of receipt of an invoice therefore,
to conduct such environmental site reviews and Investigations
as it may deem necessary for the purposes of ensuring
compliance with this Section 8.04. The Tenant's obligations
pursuant to this Section 8.40 shall survive the expiration or
earlier termination of the Term.
SIGNS
8.05 The Tenant covenants and agrees not to paint, affix, display or cause to
be painted, affixed or displayed any picture, advertisement, notice, lettering,
decoration or sign on any part of the exterior of the Leased Premises
(including, without limitation, the windows) without in each instance the prior
written approval of the Landlord. The cost of all such signage material and the
installation and erection thereof shall be borne by the Tenant and shall be
payable forthwith on demand. All such signage material shall be erected in
strict conformance with all applicable municipal regulations, requirements and
by-laws in existence from time to time. All such signage material shall be
removed by the Tenant at its own expense at the termination of this Lease and
the Tenant shall promptly repair at its own expense to the satisfaction of the
Landlord any and all damage caused by such removal and this covenant shall
survive the expiry or other termination of the Term.
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PARKING
8.06 The Tenant shall have the right to park approximately fifty (50) cars
belonging to its employees, servants, agents, contractors and invitees in those
areas on the Lands designated by the Landlord from time to time as parking areas
for the Leased Premises and shall not park nor permit its employees, servants,
agents, contractors or invitees to park in any other areas whatsoever. The
Tenant shall not park nor permit to be parked any vehicles (cars, trucks,
trailers, or otherwise) anywhere on the Lands at any time other than at such
areas so designated by the Landlord. The Tenant shall be allowed to park in the
areas directly in front and adjacent to the Leased Premises but in no event
shall the foregoing be construed as "reserved" parking and provided the Landlord
is making available approximately fifty (50) parking spaces for use by the
Tenant on the Lands, the Landlord shall have no obligation to police, patrol or
enforce the use of such parking spaces.
REFUSE AND GARBAGE
8.07 The Tenant agrees that it will not allow any waste, refuse, garbage,
ashes or other loose or objectionable material to accumulate in or about the
Leased Premises and will provide covered metal receptacles for the same and will
at all times keep the Leased Premises in a clean and tidy condition.
OVERLOADING FLOORS
8.08 The Tenant covenants that it will not bring upon the Leased Premises or
any part thereof any machinery, equipment, article or thing that, by reason of
its weight, size, configuration, operation or otherwise, might damage the Leased
Premises and will not at any time overload or damage the floors of the Leased
Premises. The Tenant shall remove any such machinery, equipment (including but
not limited to mobile equipment such as a forklift), article or thing within
five (5) days' written notice thereof and if any damage is caused to the Leased
Premises by any machinery, equipment, article or thing or by overloading, the
Tenant shall forthwith repair such damage at its own expense to the satisfaction
of the Landlord.
OUTSIDE STORAGE
8.09 The Tenant agrees that it will not store any goods or matter of any kind
whatsoever outside the Leased Premises without the express written consent of
the Landlord first had and obtained.
ARTICLE IX - INSURANCE AND INDEMNITY
TENANT'S INSURANCE
9.01 The Tenant shall, at its expense, maintain in force during the Term in
the name of the Tenant (with the Landlord and the Landlord's mortgagee, if any,
as additional insureds) the following insurance:
(a) comprehensive general liability insurance against claims for
personal injury, death or property damage (including but not
limited to tenants' legal liability, personal injury
liability, products liability, property damage and contractual
liability to cover all indemnities) with respect to the
business or operations carried on in and from the Leased
Premises, in amounts required by the Landlord and any
mortgagee of the Building or any part thereof from time to
time but in no event less than Five Million Dollars
($5,000,000.00) per occurrence;
(b) insurance covering all contents of the Leased Premises and all
other property for which the Tenant is responsible pursuant to
this Lease and/or which has been installed by or on behalf of
the Tenant (including without limitation all chattels,
equipment, machinery, furniture, inventory, fixtures and all
Leasehold Improvements) in an amount equal to the full
replacement value thereof; and
(c) such other forms of insurance as may be reasonably required by
the Landlord and its mortgagee from time to time.
Any policy written pursuant to paragraph (a) of this Section shall contain a
severability of interest clause and a cross liability clause. All policies shall
contain an undertaking by the insurers to notify the Landlord and its mortgagee,
if any, in writing not less than thirty (30) days prior to any material change,
cancellation or termination thereof and shall be subject only to such
deductibles and exclusions as the Landlord may approve, acting reasonably. The
Tenant shall promptly furnish upon request from the Landlord verification of
compliance with the provisions of this Section.
LANDLORD'S INSURANCE
9.02 Throughout the Term of this Lease the Landlord shall provide and keep in
force property insurance in respect of the Building (but not including the
property of the Tenant which the Tenant is required to insure for pursuant to
paragraph (b) of Section 9.01 hereof) against fire and such other perils as are
normally insured against in the circumstances by prudent landlords of similar
buildings and loss of rental income insurance, subject to reasonable deductions
and exceptions as the Landlord may determine and to amounts which the Landlord
shall from time to time determine as being reasonable or sufficient.
Notwithstanding any contribution by the Tenant to the cost of any insurance
effected by the Landlord, no insurable interest is conferred upon the Tenant
under any such policies of insurance and the Tenant has no right to receive any
proceeds under any such insurance.
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NOT TO AFFECT LANDLORD'S INSURANCE
9.03 Neither the Tenant nor its officers, directors, agents, servants,
licencees or concessionaires, assignees or subtenants shall bring onto the
Leased Premises or do or omit or permit to be done or omitted to be done upon or
about the Leased Premises anything which shall cause the rate of insurance upon
the Leased Premises or any part thereof or its contents to be increased, and if
the said rate of insurance shall be increased by reason of the use made of the
Leased Premises even though such use may be a permitted use hereunder or by
reason of anything done or omitted or permitted to be done or omitted to be done
by the Tenant or its officers, directors, agents, servants, licensees,
concessionaires, assignees or subtenants or by anyone permitted by the Tenant to
be upon the Leased Premises, the Tenant shall pay to the Landlord forthwith upon
demand the amount of such increase.
LIMIT OF LANDLORD'S LIABILITY
9.04 The Landlord shall not be responsible in any way for any injury to any
person (including but not limited to death) or for any loss of or damage to any
property belonging to the Tenant or to other occupants of the Leased Premises or
to their respective employees, agents, invitees, licensees or other persons from
time to time attending at the Leased Premises while such person or property is
in or about the Lands, the Leased Premises, or any areaways, parking areas,
lawns, sidewalks, steps, truckways, platforms, corridors, stairways, elevators
or escalators in connection therewith, including without limiting the foregoing,
any loss of or damage to any property caused by theft or breakage, or by steam,
water, rain or snow or for any loss or damage caused by or attributable to the
condition or arrangements of any electrical or other wiring or for any damage
caused by smoke or anything done or omitted to be done by any other tenant of
the Complex or for any other loss whatsoever with respect to the Leased
Premises, goods placed therein or any business carried on therein.
LIMIT OF TENANT'S LIABILITY
9.05 The Tenant shall not be liable to the Landlord for any direct injury,
loss or damage required to be insured by the Landlord pursuant to Section 9.02
to the extent of the proceeds actually recovered by the Landlord under such
policies of insurance.
INDEMNITY
9.06 The Tenant shall promptly indemnify and save the Landlord harmless from
any and all liabilities, damages, costs, expenses, claims, suits or actions
arising out of any breach, violation or non-observance by the Tenant of any of
its obligations under the Lease; from any damage to property while such property
shall be in or about the Leased Premises including but not limited to the
systems, furnishings and amenities thereof, as a result of the willful or
negligent act or omission of the Tenant, its employees, agents, invitees or
licensees; and from any injury to any employee, agent, invitee or licensee, of
the Tenant, including but not limited to death resulting at any time therefrom,
occurring on or about the Complex or any part thereof. Notwithstanding anything
else herein contained, this indemnity shall survive the expiry or earlier
termination of the Term.
ARTICLE X - CONTROL OF COMPLEX
CONTROL OF COMPLEX
10.01 (a) The Complex shall, at all times, be subject to the exclusive
control of the Landlord and, without limiting the generality
of the foregoing, the Landlord shall have the right from time
to time throughout the Term:
(i) to construct in, to or on the Complex, to make
alterations, additions and subtractions thereto and
therefrom to erect new buildings on the Complex;
(ii) to monitor access to any of the parking areas by
means of barriers, control booths or any other method
which the Landlord deems proper;
(iii) to change the location of driveways and sidewalks and
the location, layout or size of the parking area; and
(iv) to do or perform such other acts in and to the
Complex as the Landlord, acting as a prudent owner,
deems advisable for the more efficient and proper
operation of the Complex.
(b) The Landlord will operate and maintain the Complex in such a
manner as the Landlord in its sole discretion shall determine
from time to time. Without limiting the scope of such
discretion, the Landlord shall have the full right and
authority to employ all personnel and to make all rules and
regulations pertaining to and necessary for the proper
operation and maintenance of the Complex.
(c) The Landlord shall not be liable for any diminution or
alteration of the common area of the Complex resulting from
the exercise of the Landlord's rights under this Section and
the Tenant shall not be entitled to a reduction or abatement
of Rent or to compensation therefor.
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ARTICLE XI - DAMAGE & DESTRUCTION
ABATEMENT OF RENT
11.01 If the Leased Premises or any portion thereof is damaged or destroyed by
fire or by other casualty against which the Landlord is required to insure under
this Lease, Rent shall abate in proportion to the area of that portion of the
Leased Premises which, in the reasonable opinion of the Landlord, is thereby
rendered unfit for the purposes of the Tenant bears to the area of the entire
Leased Premises (but only to the extent to which the Landlord actually receives
proceeds under its loss of rental income insurance or which would have been
received if the Landlord had complied with its obligations under Section 9.02)
until the Leased Premises are repaired and rebuilt as certified by the
Landlord's Architect and the Landlord agrees that it will, with reasonable
diligence, repair and rebuild the Leased Premises, subject to Section 11.02. The
Landlord's obligation to rebuild and restore the Leased Premises shall not
include the obligation to rebuild, restore, replace or repair any chattel,
fixture or Leasehold Improvements or any other thing that is the property of the
Tenant and/or for which the Tenant is to maintain insurance under paragraph (b)
of Section 9.01 (in this Section collectively called "Tenant's Improvements");
the Building shall be deemed repaired and rebuilt when the Landlord's Architect
certifies that it has been substantially repaired and rebuilt to the state where
the Tenant could occupy it for the purpose of rebuilding, restoring, replacing
or repairing the Tenant's Improvements. The issuance of the certificate of the
Landlord's Architect shall not relieve the Landlord of its obligation to
complete the repairing and rebuilding as aforesaid, but the Tenant shall
forthwith after issuance of such certificate proceed to rebuild, restore,
replace and repair the Tenant's Improvements, and the provisions of Section 6.03
shall apply to such work, MUTATIS MUTANDIS.
TERMINATION
11.02 (a) Notwithstanding the provisions of Section 11.01 hereof, if the
Leased Premises or any portion thereof are (i) damaged or
destroyed by any cause whatsoever and cannot in the reasonable
opinion of the Landlord be rebuilt or made fit for the
purposes of the Tenant as aforesaid within one hundred and
eighty (180) days of the date of such damage or destruction,
or (ii) the Leased Premises are damaged or destroyed by an
uninsured peril, the Landlord may, at its option, terminate
this Lease by giving to the Tenant, within sixty (60) days
after the date of such damage or destruction, notice of
termination and thereupon Rent shall be apportioned and paid
to the date of such damage or destruction and the Tenant shall
immediately deliver up possession of the Leased Premises to
the Landlord.
(b) If the Landlord does not elect to terminate the Lease pursuant
to paragraph (a) of this Section, it shall, with reasonable
diligence, repair and restore the Building in accordance with
the provisions of Section 11.01.
ARTICLE XII - DEFAULT
EVENTS OF DEFAULT
12.01 An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any part
thereof within five (5) business days from the giving of
written notice by the Landlord to the Tenant in respect
thereof (provided that if the Landlord is required to give the
notice hereunder on two (2) occasions during any twenty-four
(24) month consecutive period, the Landlord shall thereafter
have no further obligation to give notice hereunder and an
Event of Default shall be deemed to occur on the date the
Tenant fails to pay Rent on the due date as provided for in
the Lease);
(b) the Tenant shall have breached or failed to comply with any of
its covenants and agreements contained in this Lease (save for
non-payment of Rent) and shall have failed to remedy such
breach or non-compliance within fifteen (15) days (or such
longer period as the Landlord may reasonably determine, having
regard to the nature of the default) after written notice
thereof given by the Landlord to the Tenant;
(c) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt or insolvent or take the benefit
of any Act now or hereinafter in force for bankrupt or
insolvent debtors;
(d) the Tenant is a corporation and any order shall be made for
the winding-up of the Tenant or other termination of the
corporate existence of the Tenant;
(e) the Tenant makes or attempts to make a bulk sale of assets not
in the ordinary course of the Tenant's business;
(f) a trustee, receiver, interim receiver, receiver and manager,
custodian or liquidator is appointed for the business,
property, affairs or revenue of the Tenant;
(g) this Lease or any of the Tenant's assets on the Leased
Premises are taken or seized under writ of execution, an
assignment, pledge, charge, debenture or other security
instrument;
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(h) the Tenant abandons or attempts to abandon the Leased
Premises;
(i) the Leased Premises shall be used by any person other than the
Tenant or the Tenant's permitted assignees or permitted
Transferees or for any purpose other than as set out in
Section 8.01;
(j) any insurance policy on the Building or any part thereof shall
be cancelled or shall be threatened by the insurer to be
cancelled or the coverage thereunder reduced in any way by the
insurer by reason of the use or occupation of the Leased
Premises or any part thereof by the Tenant and the Tenant
shall have failed to remedy the condition giving rise to such
cancellation, threatened cancellation or reduction of coverage
within forty-eight (48) hours written notice given by the
Landlord to the Tenant;
(k) the Tenant sells or disposes of the goods, chattels or
equipment in the Leased Premises or removes, commences or
threatens to remove them from the Leased Premises so that in
the opinion of the Landlord there would not, in the event of
such sale, disposal or removal, be sufficient goods on the
Leased Premises subject to distress which would satisfy all
Rent due or accruing hereunder for a period of six (6) months;
(1) the Tenant shall at any time during the Term use the Leased
Premises, whether within the use permitted by Section 8.01 or
not, in a manner which imposes upon the Landlord any
obligation to modify, extend, alter or replace any part of the
Leased Premises or any of the machinery, equipment or other
facilities used in connection with the Leased Premises, which
obligation is not fulfilled by the Tenant at its own cost in a
timely manner; or
(m) the Leased Premises are vacant for any period in excess of
fifteen (15) days other than during repairs or renovations.
Notwithstanding the BANKRUPTCY AND INSOLVENCY ACT (Canada) or
otherwise, upon the occurrence of an Event of Default, the then current
month's Rent and next ensuing three (3) months' Rent shall immediately
become due and be paid by the Tenant to the Landlord as accelerated
Rent and the Landlord may immediately distrain for the same together
with any Rent arrears then unpaid.
RIGHT OF RE-ENTRY
12.02
(a) Upon the occurrence of an Event of Default, the Landlord may
at any time thereafter, without notice to the Tenant, re-enter
the Leased Premises or any part thereof in the name of the
whole and terminate this Lease and all the rights of the
Tenant thereunder.
(b) If and whenever the Landlord exercises its option to re-enter
the Leased Premises and terminate this Lease pursuant to
paragraph (a) of this Section:
(i) the Tenant shall immediately vacate the Leased Premises and
the Landlord may remove or cause to be removed from the Leased
Premises the Tenant and/or any other occupant or occupants
thereof and may remove all property therefrom and sell or
dispose of such property as the Landlord considers appropriate
without liability for loss or damage and without prejudice to
the rights of the Landlord to recover arrears of Rent or
damages incurred by the Landlord;
(ii) the Landlord shall be immediately entitled to the payment of
Rent up to the date of termination together with all expenses
incurred by the Landlord in respect of such termination and
the value of the Rent, calculated at the date of termination,
for the unexpired portion of the Term.
RELETTING
12.03 At any time when the Landlord is entitled to re-enter the Leased
Premises or terminate this Lease, the Landlord may without notice to the Tenant
and without terminating the Lease enter upon and take custody of the Leased
Premises in the name of and as agent of the Tenant, together with all the
Tenant's improvements, fixtures and furnishings, and sublet the Leased Premises
in the name of and as the agent of the Tenant on whatever terms the Landlord may
deem appropriate but no such action by the Landlord shall waive any of the
obligations of the Tenant or limit the subsequent exercise of any of the
Landlord's remedies for default. If the Landlord shall sublet the Leased
Premises as aforesaid, the Landlord shall be entitled to receive all sublease
rent and apply the same in its discretion to any indebtedness of the Tenant to
the Landlord under this Lease and/or to the payment of any costs and expenses of
reletting, and the Landlord shall be liable to account to the Tenant only for
the excess, if any, of monies actually received by it. If the sublease rent is
less than is necessary to pay and discharge all the then existing and continuing
obligations of the Tenant hereunder, the Tenant shall pay such deficiency to the
Landlord upon demand from time to time. Notwithstanding any such re-entry and
subletting without termination, the Landlord may at any time thereafter
terminate this Lease by reason of the previous or any other default under the
Lease and the provisions of Section 12.02 shall apply.
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DISTRESS
12.04 The Tenant waives and renounces the benefit of any present or future
statute taking away or limiting the Landlord's right of distress, and covenants
and agrees that notwithstanding any such statute, none of the goods and/on
chattels of the Tenant on the Leased Premises at any time during the Term shall
be exempt from levy by distress for rent in arrears.
RIGHT OF LANDLORD TO CURE DEFAULTS
12.05 After the provision of any notice and/or applicable cure period as may
be provided for in this Lease if any, if the Tenant fails to perform or cause to
be performed any of the covenants or obligations of the Tenant herein, the
Landlord shall have the right (but shall not be so obligated) to perform or
cause to be performed and to do or cause to be done such things as may be
necessary or incidental thereto (including without limiting the foregoing, the
right to make repairs, installations, erections and expend monies), and all
payments, expenses, charges, fees and disbursements incurred or paid by or on
behalf of the Landlord in respect thereof shall be paid by the Tenant to the
Landlord within ten (10) days' written demand therefor together with all
reasonable legal and administrative costs of the Landlord in respect thereof.
REMEDIES NOT EXCLUSIVE
12.06 Mention in this Lease of any particular remedy or remedies in respect of
any default or threatened default by the Tenant in the performance of its
obligations shall not preclude the Landlord from exercising, or limit the extent
of, any other remedy in respect thereof, whether at law, in equity or pursuant
to any express provision hereof. No remedy shall be interpreted as exclusive or
dependent upon any other remedy, and the Landlord may from time to time exercise
any one or more of such remedies independently or in combination.
NON-WAIVER
12.07 No condoning, excusing or overlooking by the Landlord of any default,
breach or non-observance by the Tenant at any time or times in respect of any
covenant, proviso or condition herein contained shall operate as a waiver of the
Landlord's rights hereunder in respect of any continuing or subsequent default,
breach or non-observance, or so as to defeat or affect in any way the rights of
the Landlord herein in respect of any such continuing or subsequent default or
breach, and no waiver shall be inferred from or implied by anything done or
omitted by the Landlord, save only an express waiver by the Landlord in writing.
RECOVERY OF ADJUSTMENTS
12.08 The Landlord shall have (in addition to any other right or remedy of the
Landlord) the same rights and remedies in the event of default by the Tenant in
payment of any amount payable by the Tenant hereunder as the Landlord would have
in the case of default in payment of Rent.
ARTICLE XIII - SUBORDINATION & ACKNOWLEDGEMENTS
MORTGAGES
13.01 At the option of the Landlord or the applicable mortgagee, chargee or
trustee (as the case may be), this Lease shall be subject and subordinate to any
and all mortgages, charges and deeds of trust (and instruments supplemental
thereto), which may now or at any time hereafter affect the Leased Premises in
whole or in part, or the Lands, or the Building whether or not any such
mortgage, charge or deed of trust affects only the Leased Premises or the Lands
or the Building or affects other premises as well. The Tenant acknowledges and
agrees that any such mortgagee, chargee or trustee may unilaterally postpone and
subordinate its mortgage, charge or deed of trust to this Lease and any
renewals, modifications, consolidations, replacements or extensions thereof to
the intent that this Lease and all right, title and interest of the Tenant in
the Leased Premises shall be prior to the rights of such mortgagee, chargee or
trustee as fully as if such Lease had been executed and registered before the
registration of the mortgage, charge or deed of trust, as applicable. On request
at any time and from time to time of the Landlord or of the mortgagee, chargee
or trustee under any such mortgage, charge or deed of trust, the Tenant shall
promptly, at no cost to the Landlord or mortgagee, chargee or trustee:
(a) attorn to such mortgagee, chargee or trustee and become its
tenant of the Leased Premises or the tenant of the Leased
Premises of any purchaser from such mortgagee, chargee or
trustee in the event of an exercise of any permitted power of
sale contained in any such mortgage, charge or deed of trust
for the then unexpired residue of the Term on the terms herein
contained; and/or
(b) postpone and subordinate this Lease to such mortgage, charge
or deed of trust to the intent that this Lease and all right,
title and interest of the Tenant in the Leased Premises shall
be subject to the rights of such mortgagee, chargee or trustee
as fully as if such mortgage, charge or deed of trust had been
executed and registered and the money thereby secured had been
advanced before the execution of this Lease (and
notwithstanding any authority or consent of such mortgagee, or
trustee, express or implied, to the making of this Lease).
-16-
Any such attornment or postponement and subordination shall extend to all
renewals, modifications, consolidations, replacements and extension of any such
mortgage, charge or deed of trust and every instrument supplemental or ancillary
thereto or in implementation thereof. The Tenant shall forthwith execute any
instruments of attornment or postponement and subordination which may be so
requested to give effect to this Section.
CERTIFICATES
13.02 The Tenant shall, within not more than ten (10) days' written request
therefor, execute and return to the Landlord as required by the Landlord from
time to time and without cost to the Landlord, a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if modified,
stating the modifications and that the Lease is in full force and effect as
modified), the amount of the annual Basic Rent then being paid hereunder, the
dates to which the same, by installment or otherwise, and other charges
hereunder have been paid, whether or not there is any existing default on the
part of the Landlord of which the Tenant has notice, and any other information
reasonably required.
ARTICLE XIV - ACCESS BY LANDLORD
EXHIBITING LEASED PREMISES
14.01 The Tenant shall permit the Landlord or its agents to exhibit the Leased
Premises to prospective tenants during the last six (6) months of the Term
during normal business hours upon at least 24 hours advance notice.
EXPANSION, ALTERATION
14.02 The Landlord shall have the right to enter into the Leased Premises and
to bring its workmen and materials thereon to inspect the Leased Premises and to
make additions, alterations, improvements, installations and repairs to the
Leased Premises, the Lands and the common areas and services thereof as such may
exist from time to time. The Landlord may cause such reasonable obstructions and
interference with the use and enjoyment of the Lands, the common areas and the
Leased Premises as may be necessary for the purposes aforesaid and may interrupt
or suspend the supply of electricity, water or other utilities or services when
necessary and until the additions, alterations, improvements, installations or
repairs have been completed, and there shall be no abatement in Rent nor shall
the Landlord be liable by reason thereof, provided all such work is done as
expeditiously as reasonably possible. The Landlord shall have the right to use,
install, maintain and repair pipes, wires, ducts, shafts or other installations
in, under or through the Leased Premises for or in connection with the supply of
any services to the Leased Premises.
ARTICLE XV - MISCELLANEOUS
NOTICE
15.01 (a) Any notice, request, statement or other writing pursuant
to this Lease shall be deemed to have been given if mailed by
registered prepaid post or by facsimile transmission as
follows:
In the case of the Landlord, to:
ORLANDO CORPORATION
6205 Airport Road, 5th Floor
Mississauga, Ontario
L4V IE3
Attention: President
Facsimile # (905) 677 2824
In the case of the Tenant, to:
HMV CANADA INC.
5401 Eglinton Avenue West
Suite 110
Etobicoke, Ontario
M9C 5K6
Attention: Real Estate Department
Facsimile #
and such notice shall be deemed to have been received by the
Landlord or the Tenant (as applicable) on the third business
day after the date on which it shall have been so mailed
(provided that in the event that there is an interruption of
postal service, the aforesaid period shall be extended for a
period equivalent to the period of such interruption) or on
the day of facsimile transmission if made before 5:00 p.m.
Eastern Time on a business day, otherwise on the business day
next following, as evidenced by a written confirmation of such
facsimile transmission.
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(b) Notice shall also be sufficiently given if and when the same
shall be delivered, in the case of notice to the Landlord, to
an executive officer of the Landlord, and in the case of
notice to the Tenant, to him personally or to an officer or
manager of the Tenant if the Tenant is a corporation. Such
notice, if delivered, shall be conclusively deemed to have
been given and received at the time of such delivery. If in
this Lease two or more persons are named as Tenant, such
notice shall also be sufficiently given if and when the same
shall be delivered personally to any one of such persons.
Either the Landlord or the Tenant may from time to time, by
notice to the other as aforesaid, designate another address in
Canada and/or facsimile number to which notices issued more
than ten (10) days thereafter shall be addressed.
REGISTRATION
15.02 The Tenant covenants and agrees with the Landlord that the Tenant will
not register or record this Lease or any part thereof against the title to the
Lands or any part thereof except by way of notice which shall be subject to the
prior written approval of the Landlord not to be unreasonably withheld or
delayed and which shall only describe the parties, the Leased Premises the Term.
The Tenant covenants to execute and return to the Landlord such notice, prepared
by the Landlord in registrable form setting out the aforesaid details within ten
(10) days' written request therefor.
PLANNING ACT
15.03 Where applicable, this Lease shall be subject to the condition that it
is effective only if the PLANNING ACT (Ontario) is complied with. Pending such
compliance, the Term and any extension periods shall be deemed to be for a total
period of one (1) day less than the maximum lease term permitted by law without
such compliance.
OBLIGATIONS AS COVENANTS
15.04 Each obligation or agreement of the Landlord or the Tenant expressed in
this Lease, even though not expressed as a covenant, is considered to be a
covenant for all purposes.
SEVERABILITY
15.05 Any provision of this Lease that is determined to be illegal or
unenforceable at law shall be considered separate and severable from the
remaining provisions which shall remain in force and be binding upon the
Landlord and the Tenant.
UNAVOIDABLE DELAYS
15.06 Whenever and to the extent the Landlord is unable to fulfill or shall be
delayed or restricted in the fulfillment of any obligation hereunder by reason
of being unable to obtain the material, goods, equipment, service, utility or
labour required to enable it to fulfil such obligation or by reason of any
statute, law, regulation, by-law or order or by reason of any other cause beyond
its reasonable control, whether of the same nature as the foregoing or not, the
Landlord shall be relieved from the fulfillment of such obligation for so long
as such cause continues and the Tenant shall not be entitled to compensation for
any inconvenience, nuisance or discomfort thereby occasioned. There shall be no
deduction from the Rent or other monies payable under this Lease by reason of
any such failure or cause.
EVIDENCE OF PAYMENTS
15.07 The Tenant shall produce to the Landlord upon request, satisfactory
evidence of due payment by the Tenant of all payments required to be made by the
Tenant under this Lease.
OVERHOLDING
15.08 If the Tenant shall continue to occupy all or part of the Leased
Premises after the expiration of the Term with the consent of the Landlord, and
without any further written agreement, the Tenant shall be a monthly tenant at
one hundred and twenty five percent (125%) of the monthly Basic Rent payable
during the last year of this Lease and otherwise on the terms and conditions
herein set out except as to length of tenancy.
LIEN
15.09 As security for the due payment by the Tenant of the Rent reserved
hereunder and the performance by the Tenant of all covenants, agreements,
provisos and conditions of the Tenant to be performed hereunder, the Tenant
hereby grants to the Landlord a first lien and charge on all goods, chattels,
trade fixtures, furniture, equipment and inventory of the Tenant situate on, in
or about the Leased Premises or elsewhere. Such lien and charge shall constitute
a security agreement within the meaning of the PERSONAL PROPERTY SECURITY ACT
(Ontario) and on default of the Tenant hereunder the Landlord shall have, in
addition to any other rights and remedies it may be entitled to under this Lease
or otherwise, all the rights and remedies of a secured party under such Act.
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TIME OF ESSENCE
15.10 Time shall be of the essence of this Lease and every part thereof.
LAW
15.11 This Lease shall be governed by and construed in accordance with the
laws of the Province of Ontario.
CAPTIONS/HEADINGS
15.12 The captions appearing in the margin of this Lease and in the headings
to the Articles of this Lease have been inserted as a matter of convenience of
reference only and do not in any way whatsoever define, limit or enlarge the
scope or meaning of this Lease or any part thereof.
JOINT AND SEVERAL LIABILITY
15.13 If the Tenant shall be comprised of more than one (1) party, the
liability of each such party under this Lease shall be joint and several.
TENANT PARTNERSHIP
15.14 If the Tenant shall be a partnership, each person who shall be a member
of such partnership or successor thereof shall be and continue to be jointly and
severally liable for the performance and observance of all covenants,
obligations and agreements of the Tenant under this Lease even if such person
ceases to be a member of such partnership or successor thereof.
ENVIRONMENTAL ASSESSMENTS
15.15 (a) The Landlord or its agent shall have the right to enter
upon the Complex (including but not limited to the Leased
Premises) and conduct environmental assessment audits from
time to time during the Term.
(b) The Tenant covenants and agrees to execute, forthwith upon
demand therefor, at its own cost and expense, the complete
remediation/clean-up of any and all contamination of the
Complex arising out of the Tenant's use or occupation of the
leased premises. The aforesaid covenant in this paragraph (b)
shall survive the expiry or other termination of the Term.
ENVIRONMENTAL MATTERS
15.16 The Landlord shall be responsible, at its own cost, for the removal and
clean-up of any Hazardous Substance existing on the Leased Premises prior to the
earlier of: (i) the Commencement Date, or (ii) the date the Tenant occupies the
Leased Premises. The Tenant shall be responsible, at its own cost, for the
removal and clean-up of any Hazardous Substance existing or found on the Leased
Premises after the earlier of the Commencement Date or the date the Tenant
occupies the Leased Premises.
EASEMENTS
15.17 The Tenant acknowledges that the Lands are subject to such rights-of-way
and other easements as are designated, if any, in Schedule "B" hereto. The
Tenant agrees to postpone this Lease, upon demand by the Landlord, to:
(i) such further easements in favour of adjoining lands for
purposes of ingress and egress as may be requested by the
Landlord from time to time; and
(ii) easements regarding utilities as may be required from time to
time.
ENTIRE AGREEMENT
15.18 The Tenant acknowledges that there have been no representations made by
the Landlord which are not set out in the Lease. The Tenant further acknowledges
that the Lease constitutes the entire agreement between the Landlord and Tenant
and may not be modified except as herein explicitly provided or by subsequent
agreement in writing duly signed by the Landlord and the Tenant.
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EFFECT OF LEASE
15.19 This Indenture and everything herein contained shall extend to and bind
and may be taken advantage of by the respective heirs, executors,
administrators, successors and assigns, as the case may be, of each of the
parties hereto, subject to the granting of consent by the Landlord as provided
herein to any assignment or sublease, and where there is more than one tenant or
there is a female party or a corporation, the provisions hereof shall be read
with all grammatical changes thereby rendered necessary and all covenants shall
be deemed joint and several.
IN WITNESS WHEREOF the parties hereto have duly executed this
Lease.
LANDLORD: ORLANDO CORPORATION
Per: /s/ Doug Kilner
---------------------------------------
Authorized Signing Officer
Name: DOUG KILNER
Title: PRESIDENT
Per: /s/ William O'rourke
---------------------------------------
Authorized Signing Officer
Name: WILLIAM O'ROURKE
Title: VICE PRESIDENT, FINANCE
WE HAVE AUTHORITY TO BIND THE CORPORATION.
LANDLORD: ORION PROPERTIES LTD. (BY ITS AUTHORIZED
PROPERTY MANAGER ORLANDO CORPORATION)
Per: /s/ Doug Kilner
---------------------------------------
Authorized Signing Officer
Name: DOUG KILNER
Title: Authorized Signing Officer
Per: /s/ William O'Rourke
---------------------------------------
Authorized Signing Officer
Name: WILLIAM O'ROURKE
Title: AUTHORIZED SIGNING OFFICER
WE HAVE AUTHORITY TO BIND THE CORPORATION.
TENANT: HMV CANADA INC.
Per: /s/ Harvey Berkley
---------------------------------------
Authorized Signing Officer
Name: HARVEY BERKLEY
Title: VICE PRESIDENT, FINANCE
Per: /s/ Peter Luckhurst
---------------------------------------
Authorized Signing Officer
Name: PETER LUCKHURST
Title: PRESIDENT
I/WE HAVE AUTHORITY TO BIND THE CORPORATION.
SCHEDULE "B"
DESCRIPTION OF LAND
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the City of Mississauga, in the Regional Municipality of Peel
(formerly in the Township of Toronto, County of Peel) and being composed of part
of the East half of Lot 7, Concession 3, East of Hurontario Street and being
designated as Parts 1, 2, 3 and 4 on Plan of Survey of Record deposited in the
Land Registry Office for the Registry Division of Peel (No. 43) as 43R-6672.
SCHEDULE "C"
DEFINITIONS
For the purpose of this Lease:
(a) "ADDITIONAL RENT" means all amounts payable by the Tenant under the
provisions of this Lease, whether payable to the Landlord or otherwise,
over and above Basic Rent.
(b) "BASIC RENT" means those amounts set out as Basic Rent in Section 2.02
of this Lease.
(c) "BUILDING" means the building erected on the Lands and municipally
known as 6291 Ordan Drive in the City of Mississauga, in the Regional
Municipality of Peel.
(d) "BUILDINGS" means all of the buildings erected on the Lands.
(e) "CAPITAL TAX" means the taxes or excises, imposed by any and all taxing
authorities having jurisdiction, upon the Landlord and/or the owners of
the Building based upon or computed by reference to the capital
employed or invested by the Landlord and/or the owners of the Building
on the Lands, the Building and improvements thereto.
(f) "COMPLEX" means the Lands and the Buildings.
(g) "HAZARDOUS SUBSTANCES" means, without limitation, any and all hazardous
substances, hazardous waste, toxic waste, dangerous goods, toxic
substance, contaminants, pollutants or related materials, including
without limitation, heavy oil, pesticides, flammables, explosives,
radioactive materials, asbestoses, urea formaldehyde foam insulation,
radon gas, PCB, any products of waste, or any other contaminants,
pollutants, substances or products declared to be hazardous or toxic
under the Applicable Laws. "Applicable Laws" means any statutes, laws,
by-laws, regulations, ordinances, and requirements of governmental and
other public authorities having jurisdiction over or in respect of the
Leased Premises or Building, or any portion thereof, and all amendments
thereto at any time and from time to time, and including but not
limited to the Environmental Protection Act, R.S.0.1990, c.E.l9, as
amended, and the Canadian Environmental Protection Act, R.S.C. 1985.
(h) "LANDLORD'S ARCHITECT" means a qualified architect, engineer or Ontario
Land Surveyor from time to time chosen by the Landlord.
(i) "LANDS" means the parcel of land described in Schedule "B" hereto as it
may be added to or subtracted from and the boundaries thereof as varied
from time to time.
(j) "LEASE" means this Lease and any schedules annexed hereto and any
amendments from time to time made to this Lease in accordance with the
provisions herein set out.
(k) "LEASED PREMISES" means the Building.
(1) "LEASEHOLD IMPROVEMENTS" means all fixtures (save for trade fixtures),
installations, additions, improvements and alterations made, erected or
installed on the Leased Premises by or on behalf of the Tenant.
(m) "OPERATING COSTS" means the aggregate of all costs, expenses or amounts
incurred, whether by the Landlord or others on behalf of the Landlord
in connection with the complete maintenance, operation, management and
repair of the Lands and improvements thereon (save for the Buildings)
and components thereof, including without limiting the generality of
the foregoing and without duplication: the cost of snow, ice and refuse
clearance and removal; gardening, landscaping, repaying, line painting,
lighting signs, sanitary control, insurance (including but not limited
to liability and property insurance, the amount of the deductible
portion of any liability policy in the event of any claim thereunder
and the costs of independent adjusters and insurance consultants
retained by the Landlord); electricity; any business taxes imposed on
the Landlord by reason of its operation of the Lands or any part
thereof;
amounts paid on service contracts; the amount of all salaries, wages
and benefits paid to or on behalf of persons engaged in cleaning,
supervision, maintenance, operation, management and repair; the cost of
consultants retained with intent of saving or reducing costs; the cost
of all rental equipment and supplies used by the Landlord for all such
operations and maintenance or any other purpose; and a management fee
of fifteen percent (15%) of the foregoing amounts incurred.
In computing Operating Costs there shall be credited as a deduction the
amounts of proceeds of insurance actually recovered by the Landlord in
respect of the cost of repairs of such damage included in Operating
Costs. Operating Costs shall not include interest on Landlord's debt or
capital retirement of debt or amounts directly chargeable to capital
account, save as otherwise herein provided for.
Any report of the Landlord's auditor or other public accountant
appointed by the Landlord for the purpose shall be conclusive as to the
amount of Operating Costs for any period to which such report relates.
(n) "PROPORTIONATE SHARE" means that fraction having as its numerator the
area of the Building and having as its denominator the Rentable Area of
the Buildings.
(o) "RENT" means Basic Rent and Additional Rent.
(p) "RENTABLE AREA OF THE BUILDINGS" means the area of the Buildings
measured in accordance with the SIOR standard of measurement for
industrial buildings.
(q) "SIOR" means the Society of Industrial and Office Realtors (Canada).
(r) "TAXES" means all taxes, rates, duties, levies and assessments
whatsoever (imposed by any and all taxing authorities having
jurisdiction) levied, charged or assessed upon the Complex or upon any
part or parts thereof and all improvements now or hereafter erected or
placed on the Lands, or charged against the Landlord on account
thereof, including but not limited to local improvement charges (but
excluding profit and excess profit taxes and taxes assessed upon the
income of the Landlord). In addition to the foregoing, Taxes shall
include any and all taxes, charges, levies or assessments which may in
the future be levied, charged or assessed in lieu thereof or in
addition thereto. Taxes shall also include all costs and expenses
incurred by the Landlord in obtaining or attempting to obtain a
reduction or prevent an increase in the amount thereof and the cost of
all consultants, solicitors and accountants retained by the Landlord
with respect thereto. Taxes shall also include a management fee of up
to fifteen percent (15%) per annum of the foregoing amounts incurred
for the Landlord's services in administering, determining and appealing
the Taxes, as may be applicable.
(s) "TERM" means that period of time set out in Section 1.03 of this Lease
(and any and all extensions or renewals thereof, as may be applicable).
(t) "TRANSFER" has the meaning ascribed thereto in paragraph (a) of Section
7.01 of this Lease.
(u) "TRANSFEREE" has the meaning ascribed thereto in paragraph (a) of
Section 7.01 of this Lease.
(v) "YEAR" means each calendar year, the whole or part of which is included
within the Term.
SCHEDULE "D"
LANDLORD'S WORK
The Landlord shall, at its own cost in a good and workmanlike manner, complete
the following work prior to the Commencement Date unless otherwise noted below:
(a) Paint the existing walls of the warehouse portion of the Leased
Premises. Colours to be chosen by the Tenant from the Landlord's
standard samples.
(b) Ensure all shipping/receiving doors of the warehouse portion of the
Leased Premises are in good working order as at the date the Tenant
takes occupancy of the Leased Premises including dock levellers.
(c) Ensure that all base building mechanical and electrical equipment
serving the Leased Premises are in good working order as at the date
the Tenant takes occupancy of the Leased Premises.
(d) Approximately 28,700 square feet of the warehouse floor of the Leased
Premises to be sealed with penetrating sealer. The existing painted
floor remains as is.
(e) Provide the Leased Premises in a clean and tidy condition as at the
date the Tenant takes occupancy of the Leased Premises.
(f) Repair any existing damage as determined by the Landlord, acting
reasonably.
CONSENT TO ASSIGNMENT
THIS AGREEMENT made as of the 5th day of April, 2002.
B E T W E E N:
ORION PROPERTIES LTD., AND
ORLANDO CORPORATION
(hereinafter collectively called the "Landlord")
OF THE FIRST PART
- and -
THE CHILDREN'S PLACE (CANADA), LP,
(hereinafter called the "Assignee")
OF THE SECOND PART
- and -
HMV CANADA INC.
(hereinafter called the "Assignor")
OF THE THIRD PART
WHEREAS:
(a) the Landlord and the Assignor as tenant entered into a lease
dated as of the 21st day of August, 2000 (the "Lease") of
certain premises municipally known as 6291 Ordan Drive,
Mississauga, Ontario and being more particularly described
therein ("Leased Premises"); and
(b) the Assignor is assigning the Lease to the Assignee pursuant
to an assignment dated April 10, 2002 (the "Assignment") which
provides for a transfer of possession and Commencement Date of
May 15, 2002 ("Effective Date") as more particularly defined
in the Assignment and has requested the consent of the
Landlord to such Assignment.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the Landlord's consent herein contained and other good and valuable
consideration, the parties agree as follows:
1. The Landlord hereby consents to the assignment of the Lease by the
Assignor to the Assignee subject to the payment of the rent reserved by
and the performance and observance of the covenants, conditions and
agreements in the Lease and subject to the Assignee using the Leased
Premises only for the purposes permitted in the Lease. This consent is
given upon the basis that the Landlord does not acknowledge or approve
of any of the terms of the said assignment between the Assignee and the
Assignor except for the said assignment itself.
2. This consent shall in no way affect or release the Assignor from its
liabilities and responsibilities under the Lease notwithstanding the
assignment and is given without prejudice to the Landlord's rights
under the Lease.
3. This consent shall not be deemed to authorize any further assignments
or subletting or parting with or sharing possession of all or part of
the Leased Premises, which may only be done in full compliance with the
Lease.
2
4. In consideration of the Landlord consenting to the Assignment, the
Assignee hereby covenants and agrees with the Landlord to observe,
comply with and perform all terms, conditions and covenants in the
Lease and to pay all sums of any kind whatsoever and perform all
obligations of any kind whatsoever as and when the same are due to be
paid or performed by the tenant pursuant to the terms of the Lease
during all of the term of the Lease and any renewals or extensions
thereof. The Assignee acknowledges that it has received a copy of the
Lease and is familiar with all terms, covenants, agreements and
obligations set out therein.
5. The Assignee covenants and agrees with the Landlord that prior to
taking possession of the Leased Premises it shall obtain all necessary
occupancy approvals from the local fire department and building
department and will provide copies thereof to the Landlord.
6. All elections and notices hereunder shall be in writing and delivered
in the manner prescribed by the Lease to the following addresses:
If to the Landlord, to:
ORLANDO CORPORATION
6205 Airport Road
Suite 500
Mississauga, Ontario
L4V 1E3
Attention: President
And to:
ORION PROPERTIES LTD.
10250 101 Street
AT & T Tower, Suite 920
Edmonton, Alberta
T5J 3P4
Attention: President
If to the Assignor, to:
HMV CANADA INC.
5401 Eglinton Avenue West
Suite 110
Etobicoke, Ontario
M9C 5K6
Attention: Real Estate Department
If to the Assignee, to:
THE CHILDREN'S PLACE (CANADA), LP
c/o THE CHILDREN'S PLACE RETAIL STORES, INC.
915 Secaucus Road
Secaucus, New Jersey 07094
USA
With a copy to:
THE CHILDREN'S PLACE (CANADA), LP
THE CHILDREN'S PLACE RETAIL STORES, INC.
915 Secaucus Road
Secaucus, New Jersey 07094
USA
Attention: Senior Vice President of Real Estate
3
7. The Assignor hereby acknowledges and agrees with the Landlord that it
shall continue to remain liable on all the terms and covenants in the
Lease on the part of the tenant to be observed and performed during the
initial term (specifically excluding) any renewal or extension thereof,
and only to the extent the Lease remains unamended or, if a monetary
obligation under the Lease is increased by way of an amending
agreement, to the extent such increased obligation is consented to by
the Assignor.
8. The Assignor shall be liable for and shall indemnify the Landlord
against all legal costs incurred by the Landlord with respect to the
assignment referred to herein and the Landlord's consent with respect
thereto.
9. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
ORLANDO CORPORATION ORION PROPERTIES LTD. (By its
Authorized Property Manager
Orlando Corporation
Per: /s/ DOUG KILNER Per: /s/ DOUG KILNER
----------------------------- ----------------------
Authorized signing officer Authorized signing officer
Name: Doug Kilner Name: Doug Kilner
Title: President Title: Authorized Signing Officer
Per: /s/ WILLIAM O'ROURKE Per: /s/ WILLIAM O'ROURKE
----------------------------- ------------------------
Authorized signing officer Authorized signing officer
Name: William O'Rourke Name: William O'Rourke
Title: Senior Vice President, Finance Title: Authorized Signing Officer
We Have Authority to Bind the We Have Authority to Bind the
Corporation Corporation
THE CHILDREN'S PLACE (CANADA) LP HMV CANADA INC.
By its general partner,
TCP Investment Canada II Corp.
Per: /s/ MARIO CIAMPI Per: /s/ HARVEY BERKLEY
------------------------------ -----------------------------
Authorized signing officer Authorized signing officer
Name: Mario Ciampi Name: Harvey Berkley
Title: Vice President Title: Vice President, Finance
Per: /s/ STEVEN BALASIANO Per: /s/ ANDREW POLLOCK
------------------------------ ----------------------------
Authorized signing officer Authorized signing officer
Name: Steven Balasiano Name: Andrew Pollock
Title: Secretary Title: Vice President, Marketing
I/We Have Authority to Bind the I/We Have Authority to Bind the
Corporation Corporation
ASSIGNMENT OF LEASE
A M O N G:
HMV CANADA INC.,
- and -
THE CHILDREN'S PLACE (CANADA), LP,
LEASED PREMISES:
6291 Ordan Drive
Mississauga, Ontario
L5T 1G9
ASSIGNMENT AGREEMENT
THIS AGREEMENT made as of and effective from the 10th day of
April, 2002.
A M O N G:
HMV CANADA INC.,
(the "Assignor")
OF THE FIRST PART;
- and -
THE CHILDREN'S PLACE (CANADA), LP,
(the "Assignee")
OF THE SECOND PART.
WHEREAS:
A. By a lease dated the 21st day of August, 2000 (the "Lease"), Orion
Properties Ltd., and Orlando Corporation (collectively the "Landlord") leased to
the Assignor, as Tenant, that certain building (the "Leased Premises"), erected
on the lands and municipality known as 6291 Ordan Drive, in the City of
Mississagua, in the Regional Municipality of Peel, in the Province of Ontario,
and shown outlined in Schedules "A" and "A-1" attached to the Lease, for and
during a term (the "Term") of five (5) years, commencing on the 1st day of
October, 2000, and expiring on the 30th day of September, 2005;
B. The Lease contains a covenant on the part of the Tenant not to
assign the Lease or sublet the Leased Premises without the Landlord's consent
which shall not be unreasonably withheld;
C. The Assignor has agreed to assign the Lease to the Assignee subject
to obtaining the Landlord's consent to such assignment;
D. The Assignor has applied to the Landlord for the Landlord's consent
to assign the Lease to the Assignee, subject to and upon the terms and
conditions herein set out; and
E. This Assignment shall become effective, in accordance with its
terms, upon delivery of the consent of the Landlord (the "Effective Date").
1. CONSIDERATION - The consideration for this Agreement is the mutual
covenants and agreements between the parties to this Agreement and the sum of
One Dollar ($1.00) that has been paid by each of the parties to each of the
others, the receipt and sufficiency of which is acknowledged.
2. RECITALS - The parties hereby agree that the foregoing recitals are
true in substance and in fact.
3. ASSIGNMENT - The Assignor hereby transfers, sets over and assigns
unto the Assignee, as of and from the Commencement Date (defined in Section 4(i)
below), the Leased Premises, and all privileges and appurtenances thereto
belonging, together with the unexpired residue of the Term, and the Lease and
all benefits and advantages to be derived therefrom.
TO HAVE AND TO HOLD the same unto the Assignee.
For the purpose of this Agreement, "Rent" has the same meaning as
ascribed to it in the Lease and includes Basic Rent and Additional Rent.
4. ASSIGNOR'S - The Assignor covenants and agrees with the Assignee
that:
(a) The Lease is a good, valid and subsisting Lease and that (i)
the Rent thereby reserved has been duly paid up to the Effective
Date, (ii) as of the Effective Date, there are no Events of
Default and the covenants and conditions therein contained on the
part of
-2-
Landlord and Assignor have been duly observed and performed and,
to the knowledge of the Assignor, the covenants and conditions
therein contained on the part of the Landlord have been duly
observed and performed, and (iii) the Basic Rent shall not be
increased as a result of any of the transactions consented to by
the Landlord pursuant to this Agreement.
(b) The Assignor has good right, full power and absolute
authority to assign the Leased Premises and the Lease in the
manner aforesaid, according to the true intent and meaning of
this Agreement.
(c) Subject to the consent of the Landlord, the payment of Rent
to Landlord and to the observance and performance of the terms,
covenants and conditions contained in the Lease on the part of
the Tenant therein to be observed and performed, the Assignee may
enter into and upon and hold and enjoy the Leased Premises for
the residue of the Term granted by the Lease (and any renewals)
for its own use and benefit without any interruption by the
Assignor, or by any person whomsoever or entity whatsoever
claiming through or under the Assignor.
(d) The Assignor will, from time to time hereafter, at the
request of and cost to the Assignee, promptly execute such
further assurances with respect to this Agreement, the Lease and
the Leased Premises as the Assignee reasonably requires.
(e) Any brokerage fees or commissions with respect to this
assignment shall be borne exclusively by the Assignor and the
Assignor shall indemnify and hold harmless the Assignee from any
and all claims with respect thereto.
(f) The Assignor shall indemnify and hold harmless the Assignee
from all actions, suits, costs, losses, charges, demands and
expenses for and in respect of: (i) any non-payment of Rent; and
(ii) any non-observance or non-performance of any covenants and
conditions to be observed and performed by the Assignor pursuant
to the Lease up to the Effective Date.
(g) The Assignor shall deliver vacant possession of the Leased
Premises to the Assignee in a neat, clean and tidy condition and
in the state of repair required pursuant to the Assignor's
obligations, as Tenant, under the Lease. The Assignee shall be
deemed to have accepted the condition and state of repair of the
Leased Premises unless it shall have notified the Assignor of any
deficiencies in writing within ten (10) business days of taking
possession.
(h) The Assignor warrants that, as of the Effective Date, there
are no registered mortgages, charges, deeds of trust or other
registered liens granted or incurred by Assignor on the Leased
Premises.
(i) Delivery of the Leased Premises by Assignor to the Assignee
shall occur on May 15, 2002 or such later date as the Assignor
may deliver the Leased Premises (the "Commencement Date"). In no
event, shall delivery of the Leased Premises by Assignor occur
after May 24, 2002. Subject to the adjustment in this
subparagraph and in subparagraph (k) below, the payment of Basic
Rent by the Assignee shall commence on July 1, 2002 (the "Rent
Commencement Date"). The Payment of Additional Rent by the
Assignee shall commence on August 1, 2002. The dates for the
payment of Basic and Additional Rent are different so as to give
the Assignor credit for the Deposit that the Assignor has paid to
the Landlord pursuant to Section 2.05(b) of the Lease. If
Assignor should fail to deliver the Leased Premises on May 15,
2002, then the Rent Commencement Date and the date that the
Additional Rent becomes payable shall be extended one (1) day for
each day of delay caused by Assignor.
(j) Assignor shall leave on the Leased Premises the existing
metal racks used for storing product and existing telephone
switch(es) for use by Assignee in an "as is" condition as of the
Effective Date. The Assignor shall be permitted to remove any of
its trade fixtures not specifically required herein to remain
under the terms hereof, prior to the possession date.
(k) except as specifically provided otherwise, the Assignee and
the Assignor shall adjust all items on account of Rent, taxes and
any subsequent adjustments by the Landlord provided for under the
Lease as of the date immediately preceding the date on which
Additional Rent becomes due. The Assignee shall pay for utilities
consumed on the Leased Premises from and after the Commencement
Date.
(l) The Assignor hereby assigns the Deposit under Section 2.05(b)
of the Lease to the Assignee.
5. ASSIGNEE'S COVENANTS -
(a) The Assignee covenants with the Assignor that: (i) It will at all
times during the balance of the Term of the Lease pay the Rent and observe and
perform the terms, covenants and conditions contained in the Lease respectively
reserved and contained on the part of the Tenant therein to be observed and
performed, including, without limitation, the provisions of the Lease relating
to the permitted use of the Leased Premises; (ii) It will indemnify and save
harmless the Assignor from all actions, suits, costs, losses, charges, demands
and expenses for and in respect of any such non-payment, non-observance or
non-performance; and (iii) It has not retained or used any agent or broker in
connection with this assignment herein of the Leased premises such that there
are no commissions or fees owing to any person with respect to this Agreement or
the assignment.
(b) The Assignee hereby covenants and agrees with the Landlord that:
(i) It will at all times during the balance of the Term of the Lease pay the
Rent reserved by the Lease and all other payments covenanted to be paid by the
Tenant therein and at the times and in the manner provided for in the Lease, and
will observe and perform all of the terms, covenants and conditions contained in
the Lease on the part of the Tenant therein to be observed and performed as and
when the same are required to be observed and performed as provided by the
Lease, including, without limitation, the provisions of the Lease relating to
the permitted use of the Leased Premises; and (ii) It will indemnify and save
harmless the Landlord from all actions, suits, costs, losses, charges, demands
and expenses for and in respect of any such non-payment, non-observance or
non-performance in accordance with Section 9.06 of the Lease.
The Assignee acknowledges that it has received a copy of the executed
Lease and is familiar with the terms, covenants and conditions contained
therein.
6. CONFIRMATION - The parties in all other respects hereby confirm that
the Lease is in full force and effect, unchanged and unmodified except in
accordance with this Agreement. It is understood and agreed that all terms and
expressions when used in this Agreement have the same meaning as they have in
the Lease.
7. LANDLORD'S CONSENT - This assignment is conditional upon obtaining
the Landlord's consent which, when obtained shall be attached hereto. The
Assignee shall not be entitled to enter into and take possession of the Leased
Premises until it shall deliver to the Landlord (with a copy to the Assignor) a
certificate of insurance which the Tenant is required to take out pursuant to
the Lease, and if specifically requested by the Landlord in writing in advance.
8. NOTICES - All Notices required by the terms of the Lease or this
Agreement shall be delivered, in accordance with the terms of the Lease,
(a) to the Assignor at:
HMV CANADA INC.
Attention: Real Estate Department
5401 Eglinton Avenue West
Suite 110
Toronto, Ontario, Canada, M9C 5K6
(b) to the Assignee at:
THE CHILDREN'S PLACE (CANADA), LP
c/o THE CHILDREN'S PLACE RETAIL STORES, INC.
915 Secaucus Road
Secaucus, New Jersey 07094 USA
Attention: Senior Vice President of Real Estate
With a copy to:
THE CHILDREN'S PLACE (CANADA), LP
c/o THE CHILDREN'S PLACE RETAIL STORES, INC
915 Secaucus Road
Secaucus, New Jersey 07094 USA
Attention: General Counsel's office.
9. ASSIGNMENT - Assignee may assign its rights and obligations under
this Agreement to a wholly owned affiliate on five (5) days written notice to
the Assignor. Such assignment shall not relieve The Children's Place (Canada),
LP from its obligations to comply with its obligations as Tenant under the Lease
as assigned herein.
10. BINDING EFFECT - This Agreement shall enure to the benefit of and
be binding upon the Assignor, and the Assignee, and each of their heirs,
executors, administrators, successors and assigns, respectively.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement by affixing their respective corporate seals under the hands of their
proper signing officers duly authorized in that behalf or by setting their
respective hands and seals in their personal capacity, as the case may be.
SIGNED, SEALED and DELIVERED ) HMV CANADA INC.
in the presence of ) (Assignor)
)
) Per: /s/ HARVEY BERKLEY
) ----------------------------------
) Harvey Berkley
)
) Per: /s/ ANDREW POLLOCK
) ----------------------------------
) Andrew Pollock
) THE CHILDREN'S PLACE (CANADA), LP
) by its general partner, TCP Investment
) Canada II Corp. (Assignee)
)
) Per: /s/ MARIO CIAMPI
) ---------------------------------
) Mario Ciampi
) Per: /s/ STEVEN BALASIANO
) ----------------------------------
) Steven Balasiano