EXHIBIT 10.20
______________________________________________________________________________
LEASE
______________________________________________________________________________
BETWEEN
THOMAS DOWNIE HOLDINGS LTD.
AND
GLOBAL MEDIA CORPORATION
TABLE OF CONTENTS
PAGE
1. BASIC TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
3. FIXTURING OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . .4
4. DEMISE AND TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.1 Habendum. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.2 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . .5
5. RENT AND OTHER PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . .6
5.1 Amount of Rent. . . . . . . . . . . . . . . . . . . . . . . . .6
5.2 Payment of Basic Rent . . . . . . . . . . . . . . . . . . . . .6
5.3 Estimate of Additional Rent . . . . . . . . . . . . . . . . . .7
5.4 Payment of Additional Rent. . . . . . . . . . . . . . . . . . .7
5.5 Statement and Adjustment for Additional Rent. . . . . . . . . .7
5.6 Rights of Landlord with Respect to Additional Rent. . . . . . .7
5.7 Rent for Irregular Periods. . . . . . . . . . . . . . . . . . .7
5.8 GST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.9 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.10 Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.11 Interest on Unpaid Rent . . . . . . . . . . . . . . . . . . . .8
5.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.13 Overholding Tenant. . . . . . . . . . . . . . . . . . . . . . .8
5.14 Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
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6. CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . .9
6.1 Use of Premises . . . . . . . . . . . . . . . . . . . . . . . .9
6.2 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . 11
6.3 Landlord's Rights . . . . . . . . . . . . . . . . . . . . . . 12
7. ALTERATIONS AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . . 12
7.1 Tenant's Right to Paint and Decorate. . . . . . . . . . . . . 12
7.2 Tenant's Repairs. . . . . . . . . . . . . . . . . . . . . . . 12
7.3 Landlord's Repairs. . . . . . . . . . . . . . . . . . . . . . 13
7.4 Fulfillment of Duty . . . . . . . . . . . . . . . . . . . . . 13
7.5 State of Repair at End of Term. . . . . . . . . . . . . . . . 13
7.6 Landlord's Right to Examine . . . . . . . . . . . . . . . . . 14
7.7 Cost to Tenant of Repairs by Landlord . . . . . . . . . . . . 14
7.8 Repair Work by Landlord . . . . . . . . . . . . . . . . . . . 14
7.9 No Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8. DAMAGE, DESTRUCTION OR LANDLORD'S USE . . . . . . . . . . . . . . . . 15
8.1 Abatement of Rent and Termination by Landlord . . . . . . . . 15
8.2 Landlord's Use. . . . . . . . . . . . . . . . . . . . . . . . 16
9. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.1 Tenant to Insure. . . . . . . . . . . . . . . . . . . . . . . 16
9.2 Increase in or Cancellation of Insurance. . . . . . . . . . . 17
10. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . 17
10.1 Requirement for Consent . . . . . . . . . . . . . . . . . . . 17
10.2 Landlord's Rights . . . . . . . . . . . . . . . . . . . . . . 17
10.3 Tenant Continues Liable . . . . . . . . . . . . . . . . . . . 18
10.4 Change of Control . . . . . . . . . . . . . . . . . . . . . . 18
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11. EXCLUSION OF LIABILITY AND INDEMNITY. . . . . . . . . . . . . . . . . 18
11.1 Exclusion of Liability. . . . . . . . . . . . . . . . . . . . 18
11.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 19
12. LANDLORD'S RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . 19
12.1 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.2 Execution, Receivership and Bankruptcy. . . . . . . . . . . . 20
12.3 Delivery of Possession. . . . . . . . . . . . . . . . . . . . 21
12.4 Payment of Landlord's Expenses. . . . . . . . . . . . . . . . 21
12.5 Landlord's Right to Re-let. . . . . . . . . . . . . . . . . . 21
12.6 Right of Landlord to Perform Tenant's Obligations . . . . . . 21
12.7 Money Paid by Landlord. . . . . . . . . . . . . . . . . . . . 22
12.8 Landlord's Right to Seize . . . . . . . . . . . . . . . . . . 22
12.9 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12.10 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 22
13. MORTGAGES AND ASSIGNMENT BY LANDLORD. . . . . . . . . . . . . . . . . 23
13.1 Landlord May Charge Rights. . . . . . . . . . . . . . . . . . 23
13.2 Subordination . . . . . . . . . . . . . . . . . . . . . . . . 23
13.3 Status Statement. . . . . . . . . . . . . . . . . . . . . . . 23
13.4 Registration. . . . . . . . . . . . . . . . . . . . . . . . . 23
13.5 Assignment by Landlord. . . . . . . . . . . . . . . . . . . . 24
14. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
14.1 Management of Project . . . . . . . . . . . . . . . . . . . . 24
14.2 Showing Premises. . . . . . . . . . . . . . . . . . . . . . . 24
14.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . 24
14.4 No Offer. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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14.5 Representations by Landlord . . . . . . . . . . . . . . . . . 25
14.6 No Partnership. . . . . . . . . . . . . . . . . . . . . . . . 25
14.7 Several Tenants . . . . . . . . . . . . . . . . . . . . . . . 25
14.8 Inurement . . . . . . . . . . . . . . . . . . . . . . . . . . 25
14.9 Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
14.10 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . 26
14.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 26
14.13 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 26
14.14 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . 26
15. SPECIAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 26
15.1 Option to Renew . . . . . . . . . . . . . . . . . . . . . . . 26
15.2 Landlord's Right to Terminate . . . . . . . . . . . . . . . . 27
15.3 Furniture . . . . . . . . . . . . . . . . . . . . . . . . . . 27
15.4 Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
15.5 Fixturing Period. . . . . . . . . . . . . . . . . . . . . . . 27
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- -------------------------------------------------------------------------------
LEASE
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THIS LEASE dated for reference July 2, 1999 is made
BETWEEN
THOMAS DOWNIE HOLDINGS LTD., of Suite 305 - 814
Richards Street, Vancouver, British Columbia, V6B 3A7
(the "Landlord");
AND
GLOBAL MEDIA CORPORATION, of 83 Victoria Crescent,
Nanaimo, British Columbia V9R 5B9
(the "Tenant");
THIS LEASE WITNESSES THAT:
1. BASIC TERMS
The parties to this Lease approve the following terms (the "Basic Terms") and
agree that each reference in this Lease to the Basic Terms includes the
provisions set out in this Section as well as other terms and conditions in
this Lease:
(a) Landlord Thomas Downie Holdings Ltd.
(b) Address of Landlord Care of Parkside Property Management Ltd.
305 - 814 Richards Street
Vancouver, B.C. V6B 3A7
Facsimile: (604) 685-8492
Attention: Property Manager
(c) Tenant Global Media Corporation
(d) Address of Tenant 83 Victoria Street, Nanaimo, B.C. V9R 5B9
Facsimile: (250) 716-0502
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(e) Land 400 Robson Street, Vancouver, British
Columbia and more particularly
described as: Parcel Identifier:
002-890-488--Lot E Block 65 District
Lot 541 Plan 10599
(f) Term 5 years
(g) Commencement Date September 1, 1999
(h) Basic Rent
LEASE
Year 1
Per year $72,000
Per month $6,000
Year 2
Per year $94,500
Per month $7,875
Year 3
Per year $112,500
Per month $9,375
Year 4
Per year $120,500
Per month $10,041.67
Year 5
Per year $130,500
Per month $10,875
(i) Permitted Use business and technical office
(j) Deposit $18,056.23
(k) Renewal 1 renewal for a further five-year
term, subject to right of Landlord to
terminate for demolition
2. DEFINITIONS
In this Lease:
(a) "Additional Rent" means all sums of money to be paid by the Tenant
to the Landlord under this Lease, except the Basic Rent;
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(b) "Basic Rent" means the amount set out in Subsection 1(h);
(c) "Building" means all buildings, structures, improvements and
facilities located on the Land from time to time;
(d) "Commencement Date" means September 1, 1999;
(e) "Deposit" means the sum of $18,056.25;
(f) "GST" means any and all goods and services taxes, sales tax, value
added taxes, business transfer taxes or any other taxes imposed on
the Landlord from time to time with respect to Rent payable by the
Tenant to the Landlord 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;
(g) "Hazardous Materials" means:
(i) any oil, flammable substances, explosives, radioactive
materials, hazardous wastes or substances, toxic wastes or
substances or any other wastes, or pollutants which pose a
hazard to all or any part of the Premises, or any person,
business or occupant or user of the Premises; or cause all
or any part of the Premises or any user or occupant of the
Premises to be in violation of any Hazardous Materials
Laws;
(ii) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation or transformers; and
(iii) any chemical, material or substance defined as or included
in the definition of "dangerous goods", "deleterious
substance", "extremely hazardous wastes", "restricted
hazardous waste", "toxic substances", "waste" or words of
similar import under any applicable local, provincial or
federal law or under the regulations adopted or
publications promulgated pursuant thereto.
(h) "Hazardous Materials Claims" mean any and all enforcement,
cleanup, removal, remedial, or other governmental or regulatory
actions instituted or contemplated pursuant to any Hazardous
Materials Laws;
(i) "Hazardous Materials Laws" means any local, provincial or federal
laws, rules, ordinances, regulations, orders or other edicts
having the force of law relating to the environment or any
Hazardous Materials or the environmental conditions on, under or
about the Premises including, without limitation, soil,
groundwater, and indoor and ambient air conditions;
(j) "Land" means the real property in the City of Vancouver legally
described as Parcel Identifier 002-890-488 Lot E Block 65 District
Lot 541 Plan 10599;
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(k) "Lease" means this instrument, all schedules attached to this
instrument, and the rules and regulations made from time to time
by the Landlord in respect to the Premises;
(l) "Lease Year" means a 12-month period beginning on the Commencement
Date or the anniversary of that date;
(m) "Municipality" means the City of Vancouver;
(n) "Operating Costs" means the total, without duplication, of all
expenses and costs of any kind incurred by the Landlord for
operating, renting, maintaining, insuring, repairing, replacing
and managing the Premises include the capital costs of fulfilling
the Landlord's repair obligations as set out in Section 7.3, such
capital costs to be amortized over a reasonable period of time, in
accordance with generally accepted accounting principles;
(o) "Premises" means the Land and the Building;
(p) "Rent" means all Basic Rent, Additional Rent and any other monies
payable by the Tenant pursuant to this Lease;
(q) "Tax Cost" means the total, without duplication, of sums paid by
the Landlord in respect of Taxes;
(r) "Taxes" means the aggregate of all taxes, local improvement or
similar rates, duties, assessments and charges, municipal realty
taxes, water taxes, school taxes, British Columbia corporation
capital tax, or any other taxes, rates, duties, assessments both
general or special or any rate, duty, assessment, charge or tax
levied, charged or assessed in their place by any taxing authority
levied or imposed on or in respect of the Premises by any Taxing
Authority;
(s) "Taxing Authority" means any duly constituted governmental
authority whether federal, provincial, municipal or otherwise
legally empowered to impose taxes, rates, assessments or charges
on, or in respect of the Premises;
(t) "Term" means the 5 year term of this Lease; and
(u) "Transfer" means an assignment of the whole or any part of this
Lease a sublease of all or any part of the Premises (whether by
the Tenant or a sub-tenant), any transaction whereby the rights of
the Tenant under this Lease or the rights of any sub-tenant of the
Premises are transferred to another, any transaction by which any
right of use or occupancy of all or any part of the Premises is
conferred on anyone, or any mortgage, charge or encumbrance of
this Lease (whether by assignment or sublease).
3. FIXTURING OF PREMISES
The Tenant acknowledges and agrees that:
4
(a) the Landlord is providing the Premises to the Tenant on an "as is,
where is" basis;
(b) the Tenant will not begin any work in the Premises until
architectural and engineering plans and specifications relating to
the work have been supplied to the Landlord and approved by the
Landlord in writing and the Tenant has obtained at its sole cost
and expense all required municipal or governmental approvals and
permits;
(c) taking possession of the whole or any part of the Premises by the
Tenant will be conclusive evidence as against the Tenant that the
Premises are in good and satisfactory physical and environmental
condition on such date of taking possession and will constitute an
acknowledgement by the Tenant that the Premises are in the
condition called for by this Lease; and
(d) any alterations, additions, improvements and fixtures made to or
installed on or in the Premises at the expense of the Tenant other
than unattached moveable trade fixtures will remain on and be
surrendered to the Landlord with the Premises as part of the
Premises on the expiration or earlier termination of this Lease
and will become the absolute property of the Landlord, unless the
Landlord, by notice in writing, requires the Tenant to remove
them, in which event the Tenant covenants and agrees to restore
the Premises to the state in which they were prior to the
Commencement Date and will make good any damage or injury caused
to the Premises resulting from such installation and removal,
reasonable wear and tear only excepted.
4. DEMISE AND TERM
4.1 HABENDUM
In consideration of the rents, covenants and agreements reserved and contained
in this Lease (which are to be paid, observed and performed by the Tenant) the
Landlord hereby demises and leases unto the Tenant the Premises to have and to
hold for and during the Term from the Commencement Date unless sooner terminated
as provided in this Lease.
4.2 QUIET ENJOYMENT
The Landlord covenants and agrees with the Tenant that if the Tenant pays the
Rent reserved by this Lease and performs the covenants on its part contained in
this Lease, it will and may peaceably possess and enjoy the Premises for the
Term granted without any interruption or disturbance from the Landlord or any
other person or persons lawfully claiming by, from or under the Landlord.
5
5. RENT AND OTHER PAYMENTS
5.1 AMOUNT OF RENT
The Tenant covenants and agrees to pay to the Landlord, or as the Landlord may
in writing direct, in lawful money of Canada, without any set off, compensation
or deduction whatsoever on the days and at the times specified in this Lease,
Rent which is the sum of:
(a) in and for each Lease Year, Basic Rent in the amount of year as
follows:
Year 1 September 1, 1999 to August 31, 2000 the sum of $72,000
payable on the first day of each month in advance in equal
consecutive monthly installments in the amount of $6,000, provided
however that the Tenant shall not be required to pay the Basic
Rent for the month of September;
Year 2 September 1, 2000 to August 31, 2001 the sum of $94,500
payable on the first day of each month in advance in equal
consecutive monthly installments in the amount of $7,875;
Year 3 September 1, 2001 to August 31, 2002 the sum of $112,500
payable on the first day of each month in advance in equal
consecutive monthly installments in the amount of $9,375;
Year 4 September 1, 2002 to August 31, 2003 the sum of $120,500
payable on the first day of each month in advance in equal
consecutive monthly installments in the amount of $10,041.67;
Year 5 September 1, 2003 to August 31, 2004 the sum of $130,500
payable on the first day of each month in advance in equal
consecutive monthly installments in the amount of $10,875.
(b) Tax Cost;
(c) Operating Costs;
(d) the cost, charge or expense for water, garbage collection,
electrical, gas, power, telephone and any other like service or
utility rendered to the Premises for the benefit of the Tenant and
paid by the Landlord; and
(e) all other sums of money required under this Lease to be paid to
the Landlord by the Tenant whether or not designated as Additional
Rent.
5.2 PAYMENT OF BASIC RENT
At the Landlord's request from time to time, the Tenant covenants and agrees to
forthwith deliver to the landlord such number of post-dated cheques so requested
for the Basic Rent plus GST plus Additional Rent as estimated by the Landlord.
6
5.3 ESTIMATE OF ADDITIONAL RENT
The Landlord may, in respect of any or all of the items of Additional Rent
referred to in Subsections 5.1(b) to (e), estimate the amount the Tenant would
be required to pay for such period as the Landlord may determine and may from
time to time and at any time re-estimate any or all of such items of Additional
Rent.
5.4 PAYMENT OF ADDITIONAL RENT
With respect to any of item of Additional Rent the Landlord estimates pursuant
to Section 5.3, the Tenant will pay to the Landlord such amount in advance in
equal consecutive monthly installments on the same day of the month as monthly
installments of Basic Rent. With respect to any item of Additional Rent the
Landlord has not estimated pursuant to Section 5.3, the Tenant will pay to the
Landlord the amount of such item of Additional Rent within thirty business days
of receipt of an invoice for the amount.
5.5 STATEMENT AND ADJUSTMENT FOR ADDITIONAL RENT
Within 90 days after the end of each Lease Year the Landlord will furnish to the
Tenant a statement of the actual cost during such Lease Year of those items
comprised in Additional Rent as set out in Subsections 5.1(b) to (e). If the
amount payable by the Tenant as shown on such statement is greater or less than
the Additional Rent paid by the Tenant to the Landlord pursuant to
Subsections 5.1(b) to (e), then the parties to this Lease will make the proper
adjustment within seven business days after deliver of such statement. Any
payment made by the Landlord to the Tenant or made by the Tenant to the Landlord
in respect of any adjustment made under this Lease is without prejudice to the
right of the Landlord to claim a readjustment within 12 months from the date of
delivery of such statement.
5.6 RIGHTS OF LANDLORD WITH RESPECT TO ADDITIONAL RENT
If and so often as the Additional Rent is not paid when due, the Landlord has
the same rights and remedies and may take the same steps for its recovery as for
the recovery of Rent in arrears.
5.7 RENT FOR IRREGULAR PERIODS
All Rent reserved in this Lease, including the Additional Rent, accrues from day
to day, and if for any reason it becomes necessary to calculate Rent for
irregular periods of less than one year, an appropriate pro rata adjustment will
be made on a daily basis in order to compute Rent for such irregular period.
5.8 GST
Despite any other provision of this Lease, the Tenant will pay to the Landlord
on demand an amount equal to all GST, it being the intention of the parties that
the Landlord will be fully reimbursed by the Tenant with respect to all GST at
the full rate applicable from time to time in respect of Rent or the lease of
the Premises pursuant to this Lease. The Landlord will calculate the amount of
the GST so payable by the Tenant in accordance with the applicable legislation
and the Tenant will pay the GST so payable to the Landlord at the same time as
the amounts to
7
which such GST apply are payable to the Landlord under the terms of this
Lease or on demand at such other time or times as the Landlord from time to
time determines. Despite any other provision of this Lease, the amount
payable by the Tenant is deemed not to be Rent, but the Landlord has the same
remedies for and rights of recovery of such amount as it has for the recovery
of Rent under this Lease.
5.9 UTILITIES
The Tenant covenants with the Landlord that the Tenant will pay promptly for its
gas, other fuel and electricity and water consumed on the Premises, for its
telephone, for all business taxes, license fees, rates, charges, garbage and
other like services and levies of any nature or kind levied or assessed on or in
respect of or in relation to the Tenant, the business carried on by the Tenant,
or the properties, fixtures, machinery, equipment or apparatus of the Tenant
installed in the Premises.
5.10 NET LEASE
The Tenant acknowledges and agrees that it is intended that this Lease will be a
completely carefree net lease for the Landlord except as is specifically
provided in Section 7.3 and as other expressly provided in this Lease, and that
the Landlord will not be responsible during the Term for any costs, charges,
expenses and outlays of any nature whatsoever arising from or relating to the
Premises and the Tenant, except as is otherwise expressly provided in this
Lease, will pay all charges, impositions and costs of every nature and kind
relating to the Premises and the Tenant covenants with the Landlord accordingly.
5.11 INTEREST ON UNPAID RENT
If the Tenant fails to pay any Basic Rent and Additional Rent payable by the
Tenant to the Landlord under this Lease promptly when due, then the Tenant will
pay to the Landlord interest on any unpaid Basic Rent and Additional Rent at a
rate of 12% per annum from the date on which such Basic Rent and Additional Rent
was due until actual receipt of payment of the unpaid Basic Rent, Additional
Rent and the interest due hereunder.
5.12 TAXES
The Landlord covenants with the Tenant to pay all Taxes and the Tenant covenants
with the Landlord to pay its portion of such taxes as provided in this Lease.
5.13 OVERHOLDING TENANT
If the Tenant remains in possession of the Premises after the end of the Term
and without the execution and delivery of a new lease, there shall be no tacit
renewal of this Lease or the Term hereby granted, and the Tenant will be deemed
to be occupying the Premises as a tenant from month to month at a monthly rent
payable in advance on the first day of each month equal to the sum of:
(a) the Basic Rent payable during the last month of the Term; and
8
(b) 1/10th of the Additional Rent, paid pursuant to Subsections
5.1(b) and (c);
and otherwise on the same terms, conditions and provisos as are set forth in
this Lease insofar as they are applicable to a monthly tenancy.
5.14 DEPOSIT
The Tenant will, forthwith after execution of this Lease, pay to the Landlord
the Deposit and the Landlord will apply this amount first against the second
month's Basic Rent due under this Lease, and then retain the balance without
interest to the Tenant, as a security deposit, to be returned to the Tenant
on the termination of this Lease, or to be applied, at any time during the
Term or thereafter, by the Landlord to rectify any damage to the Premises
caused by the Tenant, or, at the Landlord's discretion, against any amounts
owing by the Tenant under this Lease from time to time, and if the Deposit is
so applied, in whole or in part, by the Landlord during the Term, the Tenant
covenants to replace the whole or the portion of the Deposit so applied, with
the Landlord promptly on demand.
Upon termination of this Lease, the Landlord will inspect the Premises and
will deduct from the Deposit the cost of repairing the damage to the Premises
and the amount of the Deposit will not constitute a bar to the Landlord
recovering additional damages from the Tenant for damages to the Premises or
for breach of the covenants contained in this lease and the Landlord will
refund the balance of the Deposit, if any, to the Tenant.
6. CONDUCT OF BUSINESS
6.1 USE OF PREMISES
The Tenant covenants and agrees with the Landlord that the Tenant will:
(a) not use or occupy the whole or any part of the Premises for any
purpose other than the operation of a business and technical
office. The Tenant also covenants and agrees that it will not
allow or permit the Premises or any portion thereof to be used for
operation of a credit bureau or other financial institution;
(b) not, during the Term, vacate all or any part of the Premises;
(c) not erect or place, or suffer to be erected or placed, or maintain
any signs, decoration, lettering or advertising matter of any
nature or kind whatsoever either on the exterior walls of the
Building or in the windows without first obtaining the Landlord's
written approval and consent in each instance;
(d) not make any repairs, openings or additions to any part of the
exterior of the Building, nor place any attachments, decorations,
signs or displays in or on any part of the exterior of the
Building or on the roof, nor make any addition to the Building
without the prior written consent of the Landlord, failing which
the Tenant will be held responsible for all ensuing costs and
damages whether to remove such items or to effect repairs needed
as a result of such acts;
9
(e) not carry on, perform or suffer or permit to be carried on,
performed, or suffered on the Premises any business practice or
thing or act or engage in any activity which may be deemed a
nuisance or a menace or which in any way may injure the whole or
any part of the Premises. The Tenant will not use or permit any
part of the Premises to be used in such manner as to cause a
nuisance nor to cause or permit annoying noises or vibrations or
offensive odours. The Tenant agrees that the Landlord will
determine in its own discretion if any such state or condition
exists.
(f) no place or lease, or permitted to be placed or left in, on or on
any part of Land outside of the Building any debris, garbage,
trash or refuse, but will deposit the same in areas and at times
and in a manner specifically designated by the Landlord from time
to time. If any debris, garbage, trash or refuse is of a
perishable nature, then the Tenant must keep these items in a
properly refrigerated area provided at its own cost by the
Tenant. If there are any costs for removal of debris, garbage,
trash or refuse additional to the removal service provided by the
Municipality or if the Municipality charges for such service, then
the Tenant will pay for such costs;
(g) not enter or permit its employees, agents or representatives to
enter onto the roof of the Building for any reason whatsoever
without the prior written consent of the Landlord;
(h) fully equip the Premises with all trade equipment, lighting
fixtures, furniture, operating equipment, furnishings, fixtures,
floor coverings and any other equipment necessary for the proper
operation of the Tenant's business and such installation will be
completed without damage to the structure, heating, ventilating,
sprinklers, plumbing, electrical and other mechanical systems of
the Premises;
(i) keep the Premises in a clean and sanitary condition in accordance
with the laws of the Municipality and in accordance with all
directions, rules and regulations of the health officer, fire
marshal, building inspector or other proper offices of the
Municipality, other agencies having jurisdiction, or the insurers
of the Landlord;
(j) promptly, at its expense, comply with and observe the requirements
of all statutes, bylaws, laws, ordinances, regulations and orders
at any time in force during the Term which are applicable to the
Tenant or the condition, maintenance, use or occupation of the
Premises by the Tenant, including any regulation, order, or
requirements of any fire underwriters association or any similar
body having similar functions and of any liability or fire
insurance company by which the Landlord and Tenant or either of
them may be insured at any time during the Term, whether or not
that statute, bylaw, law, regulation, ordinance or order be of a
kind now existing or within the contemplation of the Landlord or
the Tenant, and in so doing, the Tenant will be required at its
expenses to make any necessary alterations, repairs, additions, or
deletions in, on, or to the whole or any part of the
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Premises and any equipment, machinery or other facilities in, on,
or used in connection with or appurtenant to the whole or any
part of the Premises; and
(k) abide by any and all reasonable rules and regulations which may,
from time to time, be established by the Landlord for the
Premises. The Landlord will communicate any amendments or changes
in such rules and regulations to the Tenant in writing, and after
such communication such changed or amended rules and regulations
will be those in force until further amendment and notice of the
amendment.
6.2 HAZARDOUS MATERIALS
The Tenant covenants and agrees with the Landlord that Tenant will, at its
sole expense:
(a) comply with all Hazardous Materials Laws;
(b) keep the Premises free of Hazardous Materials;
(c) promptly on request of the Landlord, provide a certificate
confirming that to the best of its knowledge the Tenant, or those
for whom it is at law responsible, has not introduced any
Hazardous Materials on, under or about the Premises;
(d) immediately on being made aware, notify the Landlord in writing,
of the existence of any Hazardous Materials Claim or any Hazardous
Materials on the Premises, or any discharges, emissions, or spill
of Hazardous Materials on, under, about or from the Premises; and
(e) promptly provide the Landlord with copies of all notices pursuant
to any Hazardous Materials Law and evidence the Tenant is
responding to such notices in a responsible manner.
The Landlord may at any reasonable time cause an environmental audit or such
tests and investigations of the Premises to determine the existence of any
Hazardous Materials, provided that such tests and investigations are carried out
with minimal interference with the Tenant's business. If the tests confirm the
existence of Hazardous Materials placed by the Tenant or those for whom it is at
law responsible, the costs will be paid by the Tenant to the Landlord on demand
and if not paid on demand will be Additional Rent.
The Tenant will be liable for any and all costs (including all legal costs on a
solicitor and own client basis) directly or indirectly arising out of or
attributable to the presence of Hazardous Materials on, under, about or from the
Premises, which have been brought on the Premises or permitted to be brought on
the Premises by the Tenant or anyone for whom the Tenant is at law responsible.
Notwithstanding anything to the contrary contained in this Lease, the Tenant
must, at its sole expense within 20 days of the expiry of the Term or any
earlier termination of this Lease, remove any and all Hazardous Materials
from the Premises which have been brought on the Premises or permitted to be
brought on the Premises by the Tenant or anyone for whom the Tenant is at law
11
responsible, and immediately repair, at the Tenant's expense, all damage to
the Premises caused by such removal. If the Tenant fails to do so, then the
Landlord may cause such removal and repairs to be undertaken and Subsection
7.7 will apply.
6.3 LANDLORD'S RIGHTS
The Tenant acknowledges that all its covenants and obligations set forth in
this Section 6 are covenants and obligations designed for the mutual benefit
and protection of the Premises and the Tenant. If the Tenant breaches any of
such covenants or obligations or fails to observe or perform any of them,
then without prejudice to any other right or remedy which the Landlord may
have under the terms of this Lease, the Landlord may rectify the situation
and collect the expenses for such work from the Tenant in the same manner as
arrears of Rent or may bring action in any court of competent jurisdiction
against the Tenant for a judgment or order directing the Tenant to remedy
such breach and to observe and perform such covenant or obligation.
7. ALTERATIONS AND REPAIRS
7.1 TENANT'S RIGHT TO PAINT AND DECORATE
The Tenant may, at any time and from time to time at its expense, paint and
decorate the interior of the Premises and make such changes, alterations,
additions and improvements in and to the Premises as will in the judgment of
the Tenant better adapt the Premises for the purpose of its business;
provided however that no changes, alterations, additions or improvements to
the structure, any perimeter wall, the heating, ventilating,
air-conditioning, plumbing, electrical, or mechanical equipment, the concrete
floor or the roof will be made without the prior written consent of the
Landlord, and without the use of contractors or other qualified workers
designated or approved by the Landlord in writing. Any changes, alterations,
additions and improvements, whether structural or otherwise, will comply with
all applicable statutes, regulations or bylaws of any municipal, provincial
or other governmental authority. The Tenant will pay to the Landlord the
amount of the increase for any insurance coverage or Taxes to the extent that
such increase is directly attributable to any action by the Tenant under this
Section, and the Tenant covenants that such insurance will not thereby be
made liable to avoidance or cancellation by the insurer by reason of such
changes, alterations, additions or improvements.
7.2 TENANT'S REPAIRS
The Tenant covenants and agrees with the Landlord that the Tenant will
promptly, at all times during the Term, at its sole cost and expense:
(a) repair, maintain and keep the interior of the Premises in good
order and repair, as a careful owner would do;
(b) repair, maintain and keep all equipment and fixtures in the
interior of the Premises in good order and repair and replace them
when necessary, as a careful owner would do, including interior
doors, windows, glass partitions, and electrical equipment and
fixtures within the Premises placed by the Tenant, and keep any
improvements now or hereafter made to the Premises, equipment and
fixtures in good order and repair, as a careful owner would do,
reasonable wear and tear only
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excepted, and the Tenant covenants to perform such maintenance,
to effect such repairs and replacements and to decorate at its
own cost and expense as and when necessary or reasonably required
so to do by the Landlord;
(c) repair any damage caused to the Premises by the Tenant or those
for whom it is at law responsible; and
(d) make whole at its sole cost and expense all damaged glass,
including plate glass, in or on the Premises.
7.3 LANDLORD'S REPAIRS
The Landlord covenants and agrees with the Tenant that the Landlord will
promptly, at all times during the Term:
(a) repair and maintain the exterior of the Premises in good order and
repair;
(b) repair the structural support components of the roof, spouts,
gutters, foundations, subfloor and outer walls of the Building;
and
(c) repair, maintain and if required, replace the heating,
ventilating, air-conditioning, plumbing and electrical equipment
and fixtures within the premises on the Commencement Date of the
Lease.
The costs incurred by the Landlord with respect to the repairs, maintenance
and replacements required to comply with the obligations in Subsections (a)
and/or (b) above will be part of the Operating Costs and paid by the Tenant
as provided in this Lease.
7.4 FULFILLMENT OF DUTY
In doing any maintenance, repairs, replacements or decorations, the Tenant
will use contractors or other workers designated or approved by the Landlord
in writing. If the Tenant fails to comply with the Landlord's request to
effect repairs, replacements or maintenance within the time provided for by
the landlord, then the Landlord may cause such repairs, replacements or
maintenance to be undertaken and the provisions of Sections 7.6 and 7.7 apply.
7.5 STATE OF REPAIR AT END OF TERM
At the end of the Term (or any earlier termination of this Lease):
(a) the Tenant will deliver to the Landlord vacant possession of the
Premises in the condition in which the Tenant is required to
maintain the Premises under this Lease;
(b) the Tenant will, before removing his goods and fixtures from the
Premises, cause any sign erected or placed in or on the Building
or the Premises to be removed or obliterated, at the sole expense
of the Tenant, and in a workmanlike manner to the satisfaction of
the Landlord, acting reasonably; and
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(c) all changes, alterations, additions and improvements made to or
installed on or in the Premises whether made pursuant to this
Section or otherwise and which in any manner are attached in, to,
on or under the floors, walls or ceilings will remain on and be
surrendered to the Landlord with the Premises as a part of the
Premises, without disturbance, molestation or injury and will be
and become the absolute property of the Landlord without any
payment or indemnity by the Landlord to the Tenant.
7.6 LANDLORD'S RIGHT TO EXAMINE
The Landlord and any employee, servant or agent of the Landlord may, at any
reasonable time during normal business hours and at any time during any
emergency, from time to time:
(a) enter and examine the state of maintenance, repair, decoration and
order of the Premises, all equipment and fixtures within the
Premises, and any improvements now or hereafter made to the
Premises;
(b) give notice to the Tenant requiring that the Tenant perform such
maintenance or effect such repairs, replacements or decorations as
may be found necessary from such examination. The failure of the
Landlord to give such notice does not relieve the Tenant from its
obligations under this Lease;
(c) make alterations or repairs as the Landlord deems necessary for
the safety, preservation, proper administration or improvements of
the Premises; and
(d) enter the Premises to remove any article or remedy any condition
which, in the opinion of the Landlord, would be likely to lead to
cancellation of any policy of insurance on the whole or any party
of the Premises, and such entry by the Landlord will not be deemed
to be a re-entry.
7.7 COST TO TENANT OF REPAIRS BY LANDLORD
If the Landlord deems it necessary to undertake any repairs or to do anything
which is required to be undertaken or done by the Tenant under this Lease,
then the Tenant will pay to the Landlord, as Additional Rent on receipt of
notice from the Landlord, all costs of such work as well as a fee for
supervisor or carrying out the Tenant's obligation an amount equal to 10% of
the monies expended or of the cost of repairs or other work carried out by or
under the supervisor of the Landlord, which amount is in addition to the cost
of such work or monies expended.
7.8 REPAIR WORK BY LANDLORD
The Landlord may elect to effect the maintenance and repair work required to
be effected and paid for by the Tenant, and the Landlord, if it so elects,
may enter into contracts for the performance of all or part of the
maintenance and repair work, provided that in such event the Landlord will
give notice to the Tenant of any and all such contracts with details of the
work to be performed thereunder and provided further that the Tenant will on
notice pay to the Landlord the Landlord's costs therefor and the Landlord's
cost will be deemed to be Additional Rent.
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7.9 NO LIENS
The Tenant covenants with the Landlord that it will not permit, do, or cause
anything to be done to the Premises at any time which would allow any lien,
certificate of pending litigation, judgment or certificate of any court or
any mortgage, charge or encumbrance of any nature whatsoever to be imposed or
to remain on the Premises. In the event of the registration of any lien or
other encumbrance by a contractor or sub-contractor of the Tenant, the Tenant
will at its own cost and expense immediately cause the lien or encumbrance to
be discharged. Should the Tenant fail to proceed with due diligence to
discharge any such lien or encumbrance, the Landlord will be at liberty to
pay and discharge any such lien or encumbrance on giving the Tenant seven
business days' written notice of its intention so to do. Any amount so paid
together with any disbursements and costs incurred by the Landlord, any legal
costs incurred by the Landlord (on a solicitor and own client basis), and
together with interest on any such amounts from the date of payment will be
added to the next installment of Basic Rent under the provisions of this
lease which will thereon become due and payable as Basic Rent under this
Lease.
8. DAMAGE, DESTRUCTION OR LANDLORD'S USE
8.1 ABATEMENT OF RENT AND TERMINATION BY LANDLORD
The Tenant covenants and agrees with the Landlord that:
(a) if the whole or any part of the Premises are, at any time during
the Term, destroyed or damaged and cannot, in the opinion of the
Landlord, be repaired or restored within 120 days after the
happening of that destruction or damage and the Premises are
rendered unfit either in whole or in part for the business of the
Tenant, then the Rent reserved by this Lease, or a proportionate
part of that Rent according to the nature and extent of the
destruction or damage sustained, will be suspended and abated
until the Landlord has rebuilt, repaired or made fit the Premises
or the Building for the purpose of the Tenant, provided that the
Landlord will in any such event at its option to be exercised
within 60 days after the occurrence of such damage or destruction
by notice in writing to the Tenant have the right to terminate
this Lease, and on the giving of such notice the Term will
forthwith terminate, and the Tenant after receipt of such notice
will forthwith make payment of the Rent apportioned to the date of
such termination and deliver up possession of the Premises to the
Landlord; provided that such termination does not affect the
obligations of the Tenant to the Landlord arising from obligations
of the Tenant existing prior to the date of such notice of
termination.
(b) subject to Subsection 8.1(a), in the event of damage or
destruction as contemplated by this Section 8.1, the Tenant will,
at its sole expense at the request of the Landlord, repair and
rebuild all of the Building, fixtures, alterations and additions
installed in the Premises by or on behalf of the Tenant and will
replace all furniture and equipment in the Premises; and
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(c) nothing contained in this Section 8.1 obligates the Landlord to
rebuilt the Building or any part of the Premises and if the
Landlord elects to rebuilt, then it may make such changes,
alterations, modifications, adaptations or extensions in, to or of
the original building or such structures as form part of the
Building as it in its unfettered discretion sees fit.
8.2 LANDLORD'S USE
The Landlord may transfer or dispose of portions of the Land to its owners of
abutting property or dedicate or transfer to the Municipality or other
governmental or other authorities, lands for road widening and other
purposes, and when and so often as the Landlord will dispose or transfer or
dedicate any portion of the Land, then the reference to this Lease to "Land"
will mean and refer to the portion of the Land remaining after any such
transfer, disposition or dedication together with any adjacent land which may
be acquired by the landlord on any such transfer, disposition or dedication.
9. INSURANCE
9.1 TENANT TO INSURE
The Tenant covenants and agrees with the Landlord that it will take out, and
keep in force during the Term and during such other time as the Tenant
occupies the whole or any part of the Premises:
(a) insurance on all glass and plate glass in or on the Premises,
whether provided by the Landlord or the Tenant;
(b) broad boiler and machinery insurance on any such equipment in the
Premises;
(c) standard fire insurance with extended coverage or additional
perils supplemental contract on the stock-in-trade, furniture,
fixtures, improvements and all other contents of the Premises to
their full insurable value;
(d) business interruption insurance in such amounts as will reimburse
the Tenant for direct or indirect loss of earnings and for such
risks as would be carried by prudent tenants;
(e) comprehensive general liability insurance, including without
limitation non-owned automobile insurance, against claims for
fire, personal injury, death or property damage or loss on, in or
about the Premises or otherwise howsoever arising out of the
operations of the Tenant or any person conducting business from
the Premises, to the combined limit as may be reasonably required
by the Landlord from time to time but, in any case not less than
Two Million Dollars ($2,000,000.00) in respect to injury or death
to a single person and in respect of any one accident concerning
property damage;
(f) owned automobile insurance with respect to all motor vehicles
owned by the Tenant and operated in its business; and
16
(g) such other insurance in such amounts and on such terms as the
Landlord may determine from time to time on consultation with its
insurance advisors
all in amounts and with policies in form satisfactory from time to time to
the Landlord with insurers acceptable to the Landlord. Each such policy will
name the Landlord as an additional insured as its interest may appear. Each
such policy will provide that the insurer will not have any right of
subrogation against the Landlord on account of any loss or damage covered by
such insurance or on account of payments made to discharge claims against or
liabilities of the Landlord or Tenant covered by such insurance. The cost or
premium for each and every such policy will be paid by the Tenant. The
Tenant will obtain from the insurers under such policies undertakings to
notify the Landlord in writing at least 30 days prior to any cancellation of
the policies. The Tenant agrees to provide the Landlord with a certified
copy of each of the insurance policies described in this Lease within 10
business days of obtaining or renewing such policies.
9.2 INCREASE IN OR CANCELLATION OF INSURANCE
The Tenant will not do, permit to be done, or omit to do anything in, on or
about the Premises which causes or has the effect of causing the rate of
insurance on the whole or any part of the Premises to be increased or leading
to the cancellation of such insurance. If the insurance rate is so
increased, then the Tenant will pay to the Landlord as Additional Rent the
amount of such increase. If any insurance policy on the Premises is
cancelled by the insurer by reason of the use and occupation of the whole or
any part of the Premises by the Tenant or by any assignee, subtenant or
licensee of the Tenant, or by anyone permitted by the Tenant to be on the
Premises, the Landlord may at its option terminate this Lease by notice in
writing of such termination and thereon Rent and any other payments for which
the Tenant is liable under this Lease will be apportioned and paid in full to
the date of such notice of termination of this Lease plus an amount equal to
the next ensuing three months' Rent payable hereunder had the Landlord not
terminated this Lease and the Tenant will immediately delivery up vacant
possession of the Premises to the Landlord, and the Landlord may, at its
option and at the sole expense of the Tenant, enter on the Premises and
rectify the situation causing such cancellation or rate increase.
10. ASSIGNMENT AND SUBLETTING
10.1 REQUIREMENT FOR CONSENT
The Tenant will not enter into, consent to or permit any Transfer without the
prior written consent of the Landlord in each instance, but the consent is
subject to the Landlord's rights under Subsection 10.2. The Tenant will pay
to the Landlord its legal fees and expenses incurred in reviewing, revising,
approving and otherwise in connection with any Transfer.
10.2 LANDLORD'S RIGHTS
If the Tenant intends to effect a Transfer, the Tenant must give prior
written notice to the Landlord of such intent specifying the identity of the
proposed transferee, the type of Transfer contemplated, the portion of the
Premises affected by the Transfer and the financial and other terms of the
Transfer and must provide such financial, business or other information
relating to the proposed transferee and its principals as the Landlord
required, together with copies of any
17
documents which record the particulars of the proposed Transfer. The Landlord
must, within 30 days after having received such notice and all requested
information, notify the Tenant either that:
(a) the Landlord consents or does not consent to the Transfer in
accordance with the provisions of this Section and if the former,
the Landlord may impose such terms or conditions relating to its
consent as the Landlord may see fit; or
(b) the Landlord elects to cancel this Lease as to the whole or part,
as the case may be, of the Premises affected by the proposed
Transfer; or
(c) the Landlord elects to take over the position of the proposed
Transferee with respect to the Transfer such that the Landlord
becomes the assignee or subtenant, as the case may be, of the
Tenant on the financial terms set out in the notice.
If the Landlord elects to terminate this Lease, it must stipulate in its
notice the termination date, and this date must not be less than 60 days and
not more than 90 days following the giving of the notice of termination. If
the Landlord elects to terminate this Lease, then the Tenant must notify the
Landlord within 10 days after receiving the notice of termination of the
Tenant's intention whether to refrain from the Transfer or to accept
termination of this Lease or the portion of this Lease in respect of which
the Landlord has exercised its rights. If the Tenant fails to deliver such
notice within those 10 days or notifies the Landlord that it accepts the
Landlord's termination, then this Lease will as to the whole or the affected
part of the Premises, as the case may be, be terminated on the date of
termination stipulated by the Landlord in its notice of termination. If the
Tenant notifies the Landlord within those 10 days that it intends to refrain
from the Transfer, then the Landlord's election to terminate this Lease will
become void.
10.3 TENANT CONTINUES LIABLE
Notwithstanding any consent being given by the Landlord and any Transfer
being effected the Tenant will remain bound to the Landlord for the
fulfillment of all of the terms, covenants and agreements contained in this
Lease.
10.4 CHANGE OF CONTROL
If the Tenant is a private corporation or is not a reporting company or
reporting issuer and if by the merger, amalgamation of the Tenant or the sale
or other disposition of its securities the control or the beneficial
ownership of such corporation is changed at any time during the Term, there
shall be deemed to be an assignment of the rights of the Tenant under this
Lease and, accordingly, a breach of Section 10.1, unless the prior written
consent of the Landlord is first obtained.
11. EXCLUSION OF LIABILITY AND INDEMNITY
11.1 EXCLUSION OF LIABILITY
It is agreed between the Landlord and Tenant that the Landlord, or those for
whom it may in law be responsible, will not be liable unless they are
negligent, or responsible in any way for:
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(a) damage or injury to any property of the Tenant which is entrusted
to the care or control of the Landlord, its agents, servants or
employees;
(b) any loss of or damage or injury to any property belonging to the
Tenant or to employees of the Tenant or to any other person while
such property is on the Premises whether such property has been
entrusted to employees of the Landlord or not and without limiting
the generality of the foregoing, the Landlord will not be liable
for any damage to any such property caused by steam, water, rain
or snow which may leak into, issue or flow from any part of the
Building or from the water, steam or drainage pipes or plumbing
works of the Building or from any other place or quarter or for
any damage caused by or attributable to the condition or
arrangement of any electric or other wiring or for any damage
caused by anything done or omitted by the Tenant; and
(c) any death or injury arising from or out of any occurrence in, on,
at, or relating to the Building or damage to property of the
Tenant or of others wherever located, whether or not resulting
from the negligence of the Landlord or those for whom it may in
law be responsible, the exercise by the Landlord of any of its
rights under the Lease, or by the Landlord's or suppliers' failure
to provide any services, facilities or utilities required by this
Lease. The exculpation of the Landlord from liability extends to
and includes all damages, direct, indirect, or consequential,
damages for personal discomfort, illness or inconvenience,
interruption of business, loss of income, and any death, injury or
damage to property or other loss resulting from any cause,
including without limitation, fire, explosion, falling plaster,
falling ceiling tiles, falling ceiling fixtures and diffuser
coverings, steam, gas, electricity, water, rain, flood, snow or
leaks from any part of the Building, including pipes, sprinkler,
appliances, plumbing works, roofs, windows or the subsurface of
any floor or ceiling of the Building or from any lands adjoining
the Building.
11.2 INDEMNIFICATION
The Tenant covenants and agrees with the Landlord to indemnify and save
harmless the Landlord and those for whom it is at law responsible, unless the
Landlord and those for whom it is at law responsible are negligent, against
and from any and all claims, including all claims for personal injury or
property damage arising from any act or omission of the Tenant or any
employee, agent, customer, invitee or licensee of the Tenant, and against and
from all costs, counsel fees, expenses and liabilities incurred in or about
any such claim or any action or proceeding brought.
12. LANDLORD'S RIGHTS AND REMEDIES
12.1 DEFAULT
If and whenever any one or more of the following events occur:
(a) the Rent hereby reserved, or any part of the Rent, is not paid on
the day appointed for its payment, whether lawfully demanded or
not;
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(b) in case of breach or nonobservance or nonperformance of any of the
covenants, agreements, provisos, conditions or rules and
regulations on the part of the Tenant to be kept, observed or
performed;
(c) in case the Premises is vacated or remains unoccupied for five
consecutive days;
(d) if, without the written consent of the Landlord, the Premises are
used by any person other than the Tenant, the Tenant's permitted
assigns or permitted sublessees;
(e) if, without the written consent of the Landlord, the Premises are
used for any purpose other than that for which the Premises were
let; or
(f) in case the Term is taken in execution or attachment for any cause
whatever;
then in and every such case, it will be lawful for the Landlord at any time
thereafter to enter into and on the Premises or any part of the Premises in
the name of the whole and the Landlord to have again, repossess and enjoy as
of its former estate, anything in this Lease contained to the contrary
notwithstanding. Whenever the Landlord shall be entitled to re-enter the
Premises, it may, at its option and without limiting its other remedies and
recourses, terminate this Lease, reserving a rights to claim all costs (on a
solicitor and own client basis), losses, damages and expenses arising from
any of the events set out in this Section.
12.2 EXECUTION, RECEIVERSHIP AND BANKRUPTCY
If, during the Term, any one or more of the following events occur:
(a) any of the goods and chattels of the Tenant are at any time seized
in execution or attachment by any creditor of the Tenant;
(b) a receiver or receiver-manage is appointed in respect of any
property of the Tenant;
(c) the Tenant makes any assignment for the benefit of creditors;
(d) the Tenant makes any bulk sale;
(e) the Tenant becomes bankrupt or insolvent or takes the benefit of
any act now or hereafter in force for bankrupt or insolvent
debtors;
(f) the Tenant is a corporation and any order is made for the
winding-up of the Tenant or termination of the corporate
existence of the Tenant;
then in any such case this Lease will, at any time thereafter and at the sole
option of the Landlord, cease and determine and the Term will immediately become
forfeited and void and the then current month's Rent and the next ensuing three
months' Rent will immediately become due and be paid and the Landlord may
immediately claim that Rent together with any arrears then unpaid and any other
amounts owing to the Landlord by the Tenant under this Lease and the
20
Landlord may, without notice or any form of legal process, forthwith re-enter
on and take possession of the Premises and become the owner of the Premises
and remove the Tenant's effects therefrom, any statute or law to the contrary
notwithstanding, without prejudice to, and under reserve of, all other
rights, remedies and recourses of the Landlord.
12.3 DELIVERY OF POSSESSION
If, pursuant to the provisions of this Lease, this Lease is terminated prior
to the end of the Term, then the Rent and any other payments for which the
Tenant is liable under this Lease will be apportioned and paid in full to the
date of such termination, and the Tenant will immediately deliver up vacant
possession of the Premises to the Landlord; provided that, and
notwithstanding such termination, if at the date of such termination the
actual amount of the Rent or any other payment cannot be exactly ascertained,
the Tenant will pay to the Landlord the amount of the Rent, or other payment
as estimated by the Landlord and forthwith on the exact amount of such sum
being ascertained, the Landlord and the Tenant will make any adjustments, if
required.
12.4 PAYMENT OF LANDLORD'S EXPENSES
If at any time an action is brought for recovery of possession of the
Premises, for the recovery of Rent or any other amount due under this Lease,
or because of a breach by act or omission of any covenant contained in this
Lease on the part of the Tenant, and a breach is established, the Tenant will
pay to the Landlord all expenses incurred by the Landlord in the enforcement
of its rights and remedies under this Lease.
12.5 LANDLORD'S RIGHT TO RE-LET
In any of the cases described in Sections 12.1 and 12.2, the Landlord will
have, in addition to the other rights hereby reserved, the right if it thinks
fit to enter the Premises as the agent of the Tenant, either by force or
otherwise, without being liable to any prosecution therefor and to re-let or
sublet the whole or any part of the Premises as the agent of and at the risk
of the Tenant and to apply the proceeds of that re-letting or subletting on
account of Rent due or in satisfaction of the breach of any covenant or
agreement contained in this Lease, and the Tenant will remain liable for the
deficiency of any Rent, together with the Landlord's reasonable expenses of
retaking and re-letting, including legal fees as between solicitor and own
client, and the Landlord may recover from the Tenant the Rent due for the
remainder of the Term in the event the Landlord has not so re-let, or if the
Landlord has re-let, to recover from the Tenant the difference in rent
payable by the new tenant of the Premises for the balance of the Term and
that required to be paid by the Tenant under this Lease for the balance of
the Term, notwithstanding in either case that the Term will not have ceased
and the Tenant agrees to pay promptly on demand any amount so determined.
12.6 RIGHT OF LANDLORD TO PERFORM TENANT'S OBLIGATIONS
If, at any time and so often as it happens, the Tenant makes default in the
observance or performance of any covenant contained in this Lease on its part
to be observed or performed or fails to make payment of any money undertaken
by it under this Lease to be paid other than as Rent to the Landlord, then
the Landlord may, but is not obligated so to do, without waiving or releasing
the Tenant from its obligations under this Lease, itself observe and perform
the
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covenant or covenants in respect of which the Tenant has made default or make
payment of the moneys the Tenant has failed to pay, and the Tenant will
promptly pay all costs and expenses incurred by the Landlord in the
observance or performance of such covenant or covenants including, without
limitation, legal costs as between solicitor and own client.
12.7 MONEY PAID BY LANDLORD
Any money paid by the Landlord as provided in Section 12.4 will, with
interest on that money from the date of the incurring of such costs or
expenses or payments of moneys at a rate equal to 24% per annum, be a charge
on the Premises in favor of the Landlord in priority to the interest of the
Tenant under this Lease and of any person claiming through or under the
Tenant, and all such costs, expenses and moneys and interest on all such
costs, expenses and moneys will be payable forthwith by the Tenant and to the
Landlord and the Tenant covenants to pay them forthwith on demand by the
Landlord and they will be treated as Rent due and payable to the Landlord
under this Lease and the Landlord will have the same rights and remedies and
may take the same steps for their recovery as for the recovery of Rents in
arrears.
12.8 LANDLORD'S RIGHT TO SEIZE
The Tenant waives and renounces the benefit of any present or future law
taking away or limiting the Landlord's rights against the Tenant and
notwithstanding any such law, the Landlord may seize and sell all of the
Tenant's goods and property, whether within the Premises or not, and apply
the proceeds of such sale on Rent and all other amounts outstanding under
this Lease and on the costs of the seizure and sale in the same manner as
might have been done if such law had not been passed. The Tenant further
agrees that if it leaves the Premises, leaving any Rent or other amounts
provided to be paid under this Lease unpaid, the Landlord, in addition to any
remedy otherwise provided by law, may seize and sell the goods and chattels
of the Tenant at any place to which the Tenant or any other person may have
removed them, in the same manner as if such goods and chattels had remained
on the Premises.
12.9 NO WAIVER
No condoning, excusing or overlooking by the Landlord or Tenant of any
default, breach or nonobservance by the Tenant or the Landlord at any time or
times in respect of any covenant, proviso or condition contained in this
Lease will operate as a waiver of the Landlord's or the Tenant's rights under
this Lease in respect of any continuing or subsequent default, breach of
nonobservance, or so as to defeat or affect in any way the rights of the
Landlord or the Tenant in respect of any such continuing or subsequent
default or breach, and no waiver will be inferred from or implied by anything
done or omitted by the Landlord or the Tenant except if there is an express
waiver in writing.
12.10 REMEDIES CUMULATIVE
All rights and remedies of the Landlord in this Lease contained will be
cumulative and not alternative.
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13. MORTGAGES AND ASSIGNMENT BY LANDLORD
13.1 LANDLORD MAY CHARGE RIGHTS
The rights of the Landlord under this Lease may be mortgaged, charged,
transferred or assigned to a purchaser or to a mortgagee or trustee for bond
holders and in the event of a sale or of default by the Landlord under any
mortgage, trust deed or trust indenture and the purchaser, mortgagee or
trustee, as the case may be, duly entering into possession of the Premises,
the Tenant agrees to attorn to and become the Tenant of such purchaser,
mortgagee or trustee under the terms of this Lease.
13.2 SUBORDINATION
This Lease is subject and subordinate to all mortgages, trust deeds or trust
indentures which may now or at any time hereafter affect in whole or in part the
Premises whether or not any such mortgage, trust deed or trust indenture will
affect only the Premises or will be a blanket mortgage, trust deed or trust
indenture affecting other premises as well. This Lease will also be subject and
subordinate to all renewals, modifications, consolidations, replacements and
extensions of any such mortgage, trust deed or trust indenture. In confirmation
of such subordination and agreement to attorn, the Tenant will execute promptly
on request by the Landlord any certificate, instruments or postponement or
attornment of other instruments which may from time to time be requested to give
effect to the provisions of this Lease. The Tenant hereby irrevocably appoints
the Landlord as the attorney for the Tenant with full power and authority to
execute and deliver such instruments for and in the name of the Tenant.
13.3 STATUS STATEMENT
If, in connection with any sale, assignment, hypothecation or mortgaging of
the Premises or the Land by the Landlord, an offset statement is required
from the Tenant, then the Tenant covenants and agrees with the Landlord to
deliver (within 10 days after request for such a certificate by the Landlord)
a certificate to any proposed mortgagee or purchaser, or to the Landlord,
certifying that this Lease is in full force and effect, that there are no
defenses, offsets or prepayments to this Lease and any other information
reasonably requested by the Landlord.
13.4 REGISTRATION
The Landlord will not be obliged to deliver this Lease in registrable form.
The Tenant covenants and agrees with the Landlord not to register this Lease.
If the Landlord requires this Lease to be registered subject or in priority
to, as the Landlord may direct, any mortgage, trust deed or trust indenture
which may now or anytime hereafter affect in whole or in part the Premises or
the Land and whether or not any such mortgage, trust deed or trust indenture
affecting other premises as well, the Tenant covenants and agrees with the
Landlord that the Tenant will execute promptly on request by the Landlord any
certificate, tripartite agreement or other instrument which may from time to
time be requested to register this Lease. Such registration will be at the
cost and expense of the Landlord.
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13.5 ASSIGNMENT BY LANDLORD
In the event of the sale or lease by the Landlord of the whole or a portion
of the Premises or the assignment by the Landlord of this Lease or any
interest of the Landlord under this Lease, and to the extent that the
purchaser, lessee under such lease or assignee has assumed the covenants and
obligations of the Landlord under this Lease, then the Landlord will, without
further written agreement, be freed and relieved of all liability on such
covenants and obligations. The Tenant will, from time to time at the request
of the Landlord, certify or acknowledge to any mortgagee, purchaser, lessee,
or assignee or proposed mortgagee, purchaser, lessee, or assignee, the status
and validity of this Lease and the state of the Landlord's and Tenant's
account under this Lease.
14. GENERAL
14.1 MANAGEMENT OF PROJECT
The Tenant acknowledges that the Landlord may appoint a manager of the
Premises and on notice to the Tenant of any such appointment, such manager
will be the person at the Premises to deal with the Tenant.
14.2 SHOWING PREMISES
The Landlord may, at any time within 90 days before the end of the Term,
enter the Premises and bring others at all reasonable hours for the purpose
of offering the Premises for rent. The Landlord may at any time during the
Term, enter the Premises and bring others at all reasonable hours for the
purpose of offering the Premises for sale.
14.3 FORCE MAJEURE
Whenever and to the extent that the Landlord is unable to fulfil or is
delayed or restricted in the fulfillment of any obligations under this Lease
in respect of the performance of the Landlord's covenants under this Lease by
reason of being unable (with reasonable diligence and apart from any question
of financial ability) to obtain the material, goods, equipment, service,
utility, or labor required to enable it to fulfill that obligation or by
reason of any statute, law or order-in-council or any regulation or order
passed or made pursuant to any statute, law or order-in-council; or any other
cause beyond its control whether of the foregoing character or not, the
Landlord will be relieved from the fulfillment of that obligation and the
Tenant is not entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned and there will be no deduction from the Rent by
reason of any of these failures or causes.
14.4 NO OFFER
The Landlord will not be deemed to have made an offer to the Tenant by
furnishing to the Tenant a copy of this Lease with particulars inserted.
Notwithstanding that the first installment of Basic Rent may be received by
the Landlord when this Lease is received by it for signature no contractual
or other rights will exist or be created between the Landlord and Tenant
until such time as all parties to this Lease have executed and delivered this
Lease.
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14.5 REPRESENTATIONS BY LANDLORD
There are no representations or warranties of the Landlord as to the
environmental condition of the Premises, the presence or absence of any
Hazardous Materials on the Premises or any Hazardous Materials Claims, and
whether the intended use of the Premises contemplated by the Tenant complies
with zonings and all other laws, ordinances, regulations and requirements of
the Municipality. The Tenant hereby acknowledges that the Landlord has in no
way relieved the Tenant from its obligations under this Lease to indemnify
the Landlord from all manners of action or causes of action, damage, loss,
cost or expenses arising from the Tenant's failure to comply with laws,
ordinances, regulations, requirements, and recommendations of all levels of
government and authorities.
14.6 NO PARTNERSHIP
It is understood and agreed that nothing contained in this Lease nor in any
acts of the parties to this Lease will be deemed to create any relationship
between the parties to this Lease other than the relationship of landlord and
tenant.
14.7 SEVERAL TENANTS
Should the Tenant comprise two or more persons, each of them, and not one for
the other or others, will be jointly and severally bound with the other or
others for the due performance of the obligations of the Tenant under this
Lease. Where required by the context of this Lease the singular will include
the plural, and the masculine gender will include either the feminine or
neuter genders, as the case may be, and vice versa.
14.8 ENUREMENT
Subject to the provisions of this Lease respecting assignment by the Tenant,
this Lease inures to the benefit of and is binding on the Landlord, its
successors and assigns and the Tenant, and the heirs, executors,
administrators and other personal legal representatives, successors and
permitted assigns of the Tenant.
14.9 NOTICE
Any notice, demand, request, consent or objection required or contemplated to
be given or made by any provision of this Lease will be given or made in
writing and either delivered personally, sent by facsimile or sent by
registered mail, postage prepaid, addressed to the Landlord at the address
set out in Subsection 1(b) or addressed to the Tenant at the address set out
in Subsection 1(d) or to such other address in Canada of which either party
may from time to time notify the other in writing. The time of giving or
making such notice, demand, request, consent or objection will be, if
delivered or sent by facsimile, when delivered or faxed, and if mailed, then
on the second business day after the day of the mailing of such notice unless
there is a labor dispute that might affect the mailing of the notice in which
case the notice will be delivered or sent by facsimile rather than mailed.
If in this lease two or more persons are named as Tenant such notice, demand,
request, consent or objection will be sufficiently given or made if and when
it is given to any one of such persons. All payments required to be made by
this Lease will addressed as provided for in this Section unless otherwise
directed by the Landlord.
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14.10 TIME OF ESSENCE
Time is of the essence of this Lease.
14.11 HEADINGS
The headings in this Lease have been inserted as a matter of convenience and
for reference only and in no way define, limit or enlarge the scope or
meaning of this Lease or any provisions of this Lease.
14.12 GOVERNING LAW
This Lease will be construed and governed by the laws of British Columbia.
14.13 SEVERABILITY
Should any provision or provisions of this Lease or its conditions be illegal
or not enforceable, it or they will be considered separate and severable from
this Lease, and its remaining provisions and conditions will remain in force
and be binding on the parties to this lease as though the illegal or not
enforceable provision or provisions or conditions had never been included.
14.14 ENTIRE AGREEMENT
The Tenant acknowledges that there have been no representations or warranties
made by the landlord which are not set out in this Lease. The Tenant further
acknowledges that this Lease constitutes the entire agreement between the
Landlord and the Tenant and may not be modified except as explicitly provided
in this Lease or except by subsequent agreement in writing duly signed by the
Landlord and the Tenant.
15. SPECIAL PROVISIONS
15.1 OPTION TO RENEW
The Landlord covenants with the Tenant that if the Tenant duly and regularly
pays the Rent provided for in this Lease and performs all its covenants
contained in this Lease, then the Landlord will, on request of the Tenant in
writing to the Landlord no earlier than 9 months and no later than six months
prior to the expiration of the Term, grant to the Tenant a renewal lease of
the Premises for the further term set out in Subsection 1(k) at a rent to be
agreed on between the parties or, failing agreement within 45 days of the
date the Tenant delivers notice to the Landlord of the exercise of the
option, to be determined by arbitration in accordance with the COMMERCIAL
ARBITRATION ACT (British Columbia) as the greater of:
(a) the then current fair market rent for premises of similar size and
use in the general location of the Premises; and
(b) the Rent paid during the last year of the initial term of this
Lease.
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The renewal lease will contain all the covenants, provisos, conditions and
agreements contained in this present Lease, except for the Rent and this
option to renew.
15.2 LANDLORD'S RIGHT TO TERMINATE
If the Tenant exercises the option to renew in accordance with the provisions
of Section 15.1 the Landlord may at any time during the extended term, by a
written notice of termination, terminate the Lease effective as of the date
which is 1 year after the date the notice of termination is provided to the
Tenant. The notice of termination must confirm that the Landlord intends to
demolish all or a portion of the Building for such demolition. The Tenant
shall during the notice period pay rent and comply with all obligations
hereunder.
15.3 FURNITURE
Prior to the Commencement Date the Landlord will provide the Tenant with an
inventory which lists all furniture which the Landlord will remain on the
Premises for the Tenant's use during the Term. The Tenant agrees to accept
the furniture on an as is where is basis. The Landlord is making no
warranties or representations as to the condition of the furniture or its
suitability for use by the Tenant.
At the end of the Term, if the Tenant is not in default of its obligations
under the Lease the Landlord shall transfer title to the furniture to the
Tenant in consideration of $1.00.
15.4 PARKING
In addition to the parking located on the Premises the Landlord will make
available to the Tenant up to 8 parking stalls on lands adjacent to the
Premises on the following terms and conditions:
(i) the Tenant may on 30 days written notice reduce the number
of parking stalls it wishes to use;
(ii) if after the Tenant has reduced the number of parking
stalls it wishes to use it wishes to retake one or more
spaces it will give notice to the Landlord and subject to
availability the Landlord will allow the Tenant to retake
the parking stalls;
(iii) the Tenant shall pay the market monthly rental rates in
effect from time to time for the parking spaces.
15.5 FIXTURING PERIOD
The Tenant will be permitted access to the Premises prior to the Commencement
Date for the purposes of installation of leasehold improvements and trade
fixtures. The Tenant shall not be required to pay Basic Rent or Additional
Rent for this period but shall be required to perform all other terms and
conditions of this Lease, including placing and maintaining insurance.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first written above.
THOMAS DOWNIE HOLDINGS LTD.
Per:
/s/ Ken Downie
- ------------------------
Authorized Signatory
GLOBAL MEDIA CORPORATION
Per:
/s/ Robert Fuller
- ------------------------
Authorized Signatory
/s/ Jim Porter
- ------------------------
Authorized Signatory
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