THIS LEASE made for reference the 9th day of November, 1999.
BETWEEN
XXXXX HOLDINGS LTD., a British Columbia company with its registered and records
---------------------
office at #000 - 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
hereinafter called the "Landlord" of the FIRST PART,
AND
RAH MEDIA VENTURES CORPORATION, a British Columbia company with its registered
--------------------------------
and records office at #000 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X
0X0
hereinafter called the "Tenant" of the SECOND PART,
WITNESSES:
THAT in consideration of the mutual covenants and agreements hereinafter
respectively reserved and contained, the parties hereto covenant and agree with
each other as follows:
DEFINITIONS
-----------
1 For the purpose of this Agreement, the words set out below shall have the
meanings herein ascribed to them:
1.1 "Accounting Year" within the meaning of this Lease shall mean a period
----------------
of time, the first year commencing on the first day of the terms hereof and
ending on December 31st, 1999. Thereafter Accounting Year shall consist of
consecutive periods of 12 calendar months, provided however that the Landlord
may at any time specify an annual date from which each subsequent accounting
year is to commence, and, in such event, the then current accounting year shall
terminate from the date preceding the commencement of such new account year.
The last accounting year shall terminate upon the expiration or an earlier
determination of this Lease as the case may be.
1.2 "Insurance Costs" means the total amount payable or paid by the Landlord
---------------
or others on
behalf of the Landlord for fire, casualty, liability, extended perils, and
other insurance
costs, for the Building and the Lands, as they may be carried by the
Landlord from time
to time, in the sole discretion of the Landlord.
1.3 "Lands" means all and singular those parcels of land with a civic
-----
address of 00 Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx and legally described
as City of Vancouver, PID #000-000-000; Lot 3, Except the South 20 feet now
lane, Xxxxx 00 Xxxxxxxx Xxx 000X Plan 197.
1
1.4 "Leased Premises" means that portion of the Building and Lands with a
----------------
civic address of 0xx Xxxxx, 00 Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, and
shown outlined in bold in the sketch attached in Schedule "A" hereto, which
consists of approximately 3862 square feet.
1.5 "Operating Costs" means the total amount paid or payable whether by the
----------------
Landlord or others on behalf of the Landlord for complete maintenance for the
Landlord's Property, all repairs and replacements required for such maintenance,
the costs of providing electricity or other utilities and services not otherwise
paid by tenants, the costs of painting interior areas not normally rented to
tenants and the costs of painting and otherwise maintaining the outside of the
Building, the cost of snow removal, landscape maintenance, sign maintenance,
refuse removal and other costs in connection with the maintenance of common
outside areas and facilities, management fees, fire, casualty, liability,
extended perils and other insurance costs, service contracts with independent
contractors, and all other expenses paid or payable by the Landlord in
connection with the operation of the Landlord's Property, but shall not include
any amount of costs, expenses or other outgoings attributable only to the Leased
Premises and for which the Lessee is entirely responsible as in the Lease
otherwise provided and shall also not include interest on debt or capital
retirement of debt or any amounts directly chargeable by the Landlord to any
tenant or tenants as otherwise provided herein; PROVIDED HOWEVER the enumeration
above of items of Operating Costs shall not be deemed to be a covenant of the
Landlord to provide any or all of such items of maintenance or service.
1.6 "Proportionate Share" shall mean the amount payable by the Tenant for
--------------------
the Taxes, Operating Costs and such other sums required to be paid by the Tenant
on a proportionate share basis, which sums shall determined by multiplying the
Taxes, Operating Costs or other charges as the case may be by twenty-eight
percent (28%).
1.7 "Taxes" shall mean an amount equivalent to all taxes, rates, duties,
levies and assessments whatsoever, whether municipal, parliamentary, school or
otherwise charged upon the Building, the Lands and all improvements now or
hereafter upon the Landlord's Property, or charged upon the Landlord on account
thereof, including all taxes, rates, duties, levies and assessments for local
improvements, but excluding any tax which has been attracted by the Tenant's
improvements and equipment (which shall be entirely for the account of the
Tenant as otherwise provided in this Lease) and excluding such taxes as
corporate, income, profit or excess profit taxes assessed upon the income of the
Landlord, but shall include any and all taxes, charges or other assessments
which may in future be levied in lieu of all or any of the Taxes as herein
defined.
DEMISE
------
2. In consideration of the rents, covenants, agreements, conditions and
provisos hereinafter respectively reserved and contained, the Landlord doth
demise and lease to the Tenant the Leased Premises.
2
TERM
----
3. TO HAVE AND TO HOLD the Leased Premises for a term (the "Term") of THREE
(3) YEARS and Forty-six (46) days, commencing on the 15th day of November, 1999
(the "Commencement Date") and ending on the 31st day of December, 2002.
ACCEPTANCE OF PREMISES
------------------------
4. Subject to Schedule "B" The Tenant acknowledges that it has examined the
Leased Premises before and on executing this Lease, for the preparation of the
Leased Premises and the installation of all leasehold improvements and Tenant's
fixture, and the execution of this Lease shall be conclusive as against the
Tenant that at the time thereof, the Leased Premises were in good and
satisfactory condition, and that all undertakings, if any, of and all
representations, if any, but the Landlord respecting the condition of the Leased
Premises have been fully satisfied and performed by the Landlord. The Tenant
accepts the Leased Premises "As Is".
4.1 DEPOSIT
-------
The Lessor acknowledges receipt of a security deposit in the sum of TEN THOUSAND
FIVE HUNDRED $10,500 (the "Deposit"). At the end of the Term, any amounts owing
by the Tenant for rental arrears or any amounts required from the Tenant to pay
for damages caused to the Leased Premises or the Land by the Tenant may be
deducted from the Deposit.
BASIC RENT AND ADDITIONAL RENT
----------------------------------
5. The Tenant covenants and agrees to pay to the Landlord at the office of
the Landlord or at such other place designated by Landlord, in lawful money of
Canada, without any prior demand therefor and without any deduction or set-off,
the basic rent ("Basic Rent") as follows:
The sum of $0 per month from and including November 15, 1999 to and including
December 31, 1999;
The sum of $3,797.63 shall be paid on or before the 1st day of January, 2000 and
a like sum shall be paid on the first day of each and every consecutive month
thereafter, up to and including the 1st day of December, 2000;
The sum of $3,958.55 shall be paid on or before the 1st day of January, 2001 and
a like sum shall be paid on the first day of each and every consecutive month
thereafter, up to and including the 1st day of December, 2001;
The sum of $4,280.38 shall be paid on or before the 1st day of January, 2002 and
a like sum shall be paid on the first day of each and every consecutive month
thereafter, up to and including the 1st day of December, 2002;
3
Additional Rent
----------------
(a) The Tenant covenants and agrees to pay to the Landlord in addition to
the Basic Rent herein specified, its Proportionate Share of the Landlord's
annual costs of owning and maintaining the Leased Premises and the Land,
including real property taxes, insurance, maintenance, costs, operating costs,
charges and expenses of any nature whatsoever in respect of the Leased Premises
("Additional Rent"), excepting the Landlord's income tax and principal and
interest payments on any mortgage on the Lands. The amount of Additional Rent
which the Tenant is to pay shall be reasonably estimated by the Landlord on the
first of January for the following year. On receipt of the Landlord's notice
for payment, the Tenant agrees to pay to the Landlord such amount in monthly
installments in advance during such period on the dates and at the times for
payment of Basic Rent. Where the Term of this Lease does not run through an
entire calendar year, the Tenant shall be obligated to pay to the Landlord only
that percentage of the "Landlord's annual cost of owning the Land and the Leased
Premises as is equal to that percentage of the calendar year as is covered by
the Term of this Lease. The Landlord will provide to the Tenant by December
31st of each year during the Term of this Lease an accounting of the expenses
incurred with respect to the Leased Premises for the period of the Term of this
Lease ending December 31st of that year, and the amounts paid by the Tenant on
account thereof, and the Tenant will pay to the Landlord any amount necessary to
balance the account within fifteen (15) days of receiving such accounting, or if
the Tenant has paid more than the amount of the actual expenses, the Landlord
will reimburse the amount of the excess payment within fifteen (15) days of
providing such account to the Tenant. In the event of dispute as to the amount
of Additional Rent, a certificate of an accountant appointed by the Landlord
shall be conclusive and binding upon the Landlord and Tenant as to any amount
payable by the Tenant to the Landlord.
(b) If the Landlord does not advise the Tenant of the estimated Additional
Rent to be paid each month as aforesaid, the Tenant covenants and agrees to pay
their Proportionate Share of Additional Rent within ten (10) days after demand
by the Landlord.
(c) All Basic Rent and Additional Rent (collectively called "Rent") shall be
deemed to accrue from day to day and if for any reason it shall become necessary
to calculate Rent for irregular periods of less than one lease year an
appropriate pro-rata adjustment shall be made on a daily basis to compute Rent
for irregular period.
Goods and Services Tax
-------------------------
(d) The Tenant shall be required to pay as Additional Rent, goods and
services tax under Parts VIII and IX of the Excise Tax Act, as the same may
be amended or replaced from
time to time, all with respect to Rent and other monies payable to the
Landlord in respect
of the Leased Premises.
4
5.1 Post-Dated Cheques
-------------------
The Tenant will provide to the Landlord, post-dated cheques for a period not
exceeding 12 ensuing months, upon the Landlord's written request. Failure to
provide post-dated cheques within 10 days of such request shall be deemed to be
a default by the Tenant of this Lease.
5.2 Miscellaneous
-------------
(a) All moneys payable by the Tenant to the Landlord pursuant to Section 5
shall be construed as Rent and the Landlord may distrain therefor as against any
of the Tenant's or Indemnifier's assets at the Leased Premises.
(b) Section 5 does not apply for the Accounting Year beginning November
15th, 1999 and ending December 31st, 1999.
PAYMENTS TO THE LANDLORD
---------------------------
6. All payments required to be made by the Tenant under or in respect of
this Lease shall be made to the Landlord or to such agent or agents of the
Landlord as the Landlord shall hereinafter from time to time direct.
6.1 In absence of any direction by the Landlord, the Tenant shall make all
payments to Xxxxx Holdings Ltd. and deliver the secure payments to 0xx Xxxxx,
Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0.
TRIPLE NET LEASE
------------------
7. The Tenant acknowledges and agrees that it is intended that this Lease
shall be a complete carefree triple net Lease to the Landlord, and that the
Tenant shall be responsible during the Term of the Lease for 28% of any real
property taxes, insurance, maintenance, costs, operating costs, charges,
expenses and outlays of any nature whatsoever, levied against the whole of the
Building. All Basic Rent provided to be paid by the Tenant hereunder shall be
paid without any deduction, abatement or set-off whatsoever, it being the
intention of the Lease that all expenses, costs, payments and outgoings,
incurred in respect of the Leased Premises, or for any other matter or anything
affecting the Leased Premises shall (unless otherwise expressly stipulated
herein to the contrary) be borne by the Tenant, and that the rent herein
provided shall be absolutely net to the Landlord and free of all deduction,
abatement, set-off, realty taxes, charges, rates, assessments, expenses, costs,
payments or outgoings of every nature arising from or related to the Leased
Premises; and that the Tenant shall pay all such taxes, charges, rates,
assessments, expenses, costs, payments and outgoings.
GENERAL TENANT'S COVENANTS
----------------------------
8. The Tenant further covenants and agrees with the Landlord as follows:
5
8.1 Fixtures
--------
(a) The Tenant may, at or prior to the expiration of the Term hereby
granted, take, remove
and carry away from the premises hereby leased all fixtures, fittings,
plan, machinery,
utensils, shelving, counters, safes or other articles upon the Leased
Premises in the
nature of trade or tenants' fixtures or other articles belonging to or
brought upon the
Leased Premises by the Tenant, but the Tenant shall in such removal do no
damage to
the Leased Premises, or shall make good any damage which may be occasioned
by such
removal.
(b) The Tenant shall not remove or carry away from the Leased Premises any
building or any plumbing, heating or ventilating plant or equipment or other
Building services.
8.2 Tenant's Insurance
-------------------
(a) The Tenant shall at its expense provide and maintain in force during the
Term of this Lease or of any renewal thereof plate glass insurance, for the
benefit of the Landlord and
the Tenant, covering all plate glass in the Leased Premises, including
plate glass windows and doors, in an amount equal to the full insurable
value thereof, and public
liability and property damage insurance, for the benefit of the Landlord
and the Tenant,
in such reasonable amounts as may be required by the Landlord in respect of
injury of
death to one or more persons or property damage.
(b) All insurance shall be effected with insurers and brokers and upon terms
and conditions satisfactory to the Landlord and copies of all policies shall be
delivered to the Landlord before November 15, 1999.
(c) All such policies of insurance shall contain a clause requiring the
insurer not to cancel or change the insurance without first giving the Landlord
thirty (30) days' prior written notice thereof.
(d) The Tenant agrees that if it does not provide or maintain in force such
insurance, the
Landlord may take out the necessary insurance and pay the premium therefor
for periods
of one (1) year at a time, and the Tenant shall pay to the Landlord as
Additional Rent the
amount of such premium immediately on demand.
(e) In the event that both the Landlord and the Tenant have claims to be
indemnified under
any such insurance the indemnity shall be applied first to the settlement
of the claim of the Landlord and the balance, if any, to the settlement of the
claim of the Tenant.
(f) All such policies of insurance shall contain a Waiver of Subrogation
clause in favour of the Landlord.
8.3 Acts Conflicting with Insurance
----------------------------------
(a) The Tenant shall not do or permit to be done any thing or any act which
may render void
or voidable, or conflict with the requirements of any policy or policies of
insurance,
including any regulations of fire insurance underwriters applicable to such
policy or
policies, whereby the Leased Premises or the Building are insured, or which
may cause
6
any increase in premium to be paid in respect of any such policy or
policies.
(b) In the event that any such policy or policies is or are cancelled by
reason of any act or
omission of the Tenant, the Landlord shall have the right at its option to
terminate this
Lease forthwith by giving notice of termination to the Tenant, and in the
event that the
premium to be paid in respect of any such policy or policies is increased
by any act or
omission of the Tenant, the Tenant shall pay to the Landlord the amount by
which said
premium shall be so increased.
8.4 Repair
------
(a) The Tenant covenants with the Landlord to repair the Leased Premises,
including glass and doors of the Leased Premises and to leave the Leased
Premises in good repair, including interior painting if, in the opinion of the
Landlord, such painting is required for reasons other than reasonable wear and
tear or is required because of damage done by the Tenant to the Leased Premises,
and to permit the Landlord to enter and view the state of repair and to repair
according to notice in writing; reasonable wear and tear and damage by fire,
lightning and tempest, and other casualty against which the Landlord is insured,
and repairs required to the roof and outside walls of the Building due to
structural defects, are expressly excepted from this covenant of the Tenant to
repair. Provided however, that if the Leased Premises shall be damaged or
destroyed through negligence, carelessness or misuse by the Tenant, its
servants, agents, employees or anyone permitted by it to be in the Leased
Premises, the expense of the necessary repairs, replacements or alterations
shall be borne by the Tenant, who shall pay them to the Landlord forthwith on
demand.
(b) The Tenant also covenants with the Landlord to maintain and repair at
the Tenant's sole expense, during the whole of the Term herein, all equipment,
appurtenances and improvements with the Leased Premises, including without
limiting the generality of the foregoing, all electrical fixtures, air
conditioning equipment, heating equipment, ventilation equipment, plumbing
fixtures and equipment, wiring, and further to permit the Landlord to enter and
view the state of repair of same and to repair according to notice in writing;
provided however that reasonable wear and tear and damage by fire, lightning and
tempest and other casualty against which the Landlord is insured are expressly
excepted from this covenant. Provided further that if such equipment shall be
damaged or destroyed or rendered inoperable or require replacement through the
negligence, carelessness or misuse by the Tenant, its servants, agents,
employees or anyone permitted by it to be in the Leased Premises, the expense of
the necessary repairs, replacements or alterations shall be borne by the Tenant
who shall pay them to the Landlord forthwith on demand.
(c) The Landlord shall be responsible in the first instance to maintain and
repair the building
structure within which the Leased Premises are situate, and the roof
thereof, provided
however, that the Landlord shall not be responsible for any losses or
damages of the
Tenant caused by structural damage to the Leased Premises provided that the
Landlord
repairs same within 3 weeks of receiving written notice from the Tenant
that structural
repairs are required.
7
8.5 Use of Leased Premises, Alterations
---------------------------------------
(a) The Tenant covenants not to use or permit the Leased Premises or any
part thereof to be
used for any purpose other than the purpose for which the Leased Premises
are hereby
leased, namely a venture development/management/consulting and audial and
visual production company.
(b) The Tenant covenants not to do or suffer any waste or damage,
disfiguration, or injury to
the Leased Premises or the fixtures and equipment thereof or permit or
suffer any
overloading of the floors thereof; and not to place therein any safe, heavy
business
machine, or other heavy thing, without first obtaining the consent in
writing of the Landlord.
(c) The Tenant shall not without the prior written consent of the Landlord,
which consent shall not be unreasonably withheld, make any alterations, repairs
or improvements to the Leased Premises. The Tenant shall submit to the Landlord
detailed plans and specifications of any such work or installation when applying
for consent, and the Landlord reserves the right to recover from the Tenant the
cost of having its architects or engineers examine such plans and
specifications. The Landlord may require that any or all work to be done or
materials to be supplied with respect to alterations, repairs or improvements to
the Leased Premises shall be done or supplied by workmen or by contractors first
approved by the Landlord, such approval not to be unreasonably withheld. In any
event, any or all work to be done or materials to be supplied hereunder shall be
at the sole cost and expense of the Tenant and shall be done and supplied
hereunder shall be at the sole cost and expense of the Tenant and shall be done
and supplied and paid for in the manner and according to the terms and
conditions, if any, as the Landlord may prescribe. Any connections of apparatus
to the electrical system other than a connection to an existing base receptacle
or any connection of apparatus to the plumbing lines shall be deemed to be an
alteration within the meaning of this Clause.
(d) The Tenant covenants with the Landlord that the Tenant shall promptly
pay all charges incurred by the Tenant for any work, materials or services that
may be done, supplied or performed in respect of the Leased Premises and shall
forthwith discharge any liens at any time filed against and keep the lands and
premises of which the Leased Premises form a part, free from all liens and in
the event that the Tenant fails to do so, the Landlord may, but shall be under
no obligation to, pay into Court the amount required to obtain a discharge of
any such lien in the name of the Tenant and any amount so paid, together with
all disbursements and costs in respect of such proceedings on a solicitor and
client basis shall be forthwith due and payable by the Tenant to the Landlord as
additional rent. The Tenant shall allow the Landlord to post and keep posted on
the Leased Premises any notices that the Landlord may desire to post under the
provisions of the Builders' Lien Act or other legislation.
(e) Any additions to or alterations of the Leased Premises, except
furniture, trade fixtures,
counters, partitions and other improvements removable without damage to the
Leased
Premises, shall become part of the realty and the property of the Landlord.
(f) The Tenant shall not, without the prior written consent of the Landlord,
such consent not
to be unreasonably withheld, put up any window drapes, blinds, awnings or
other similar
8
things.
8.6 No Nuisance
------------
The Tenant shall not at any time during the said term, use, exercise or
carry on or permit
or suffer to be used, exercised or carried on, in or upon the Leased
Premises or any part
thereof any noxious or offensive art, trade, business, occupation or
calling, and no act,
matter or thing whatsoever shall at any time during the said Term to be
done in or upon
the Leased Premises or any part thereof which shall or may be used to grow
to the
annoyance, nuisance, damage or disturbance of the occupiers or owners of
the said
Building or adjoining lands and properties.
8.7 Compliance with Laws, Etc.
-----------------------------
The Tenant covenants that it shall promptly, at its expense, comply with and
observe the requirements of all statutes, by-laws, laws, ordinances, regulations
and orders at any time in force during the Term hereof which are applicable to
the Tenant or the condition, maintenance, use or occupation of the Leased
Premises by the Tenant, including any regulation, order or requirement of the
Canadian Fire Underwriters' Association or any successor 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 hereof,
whether or not such state, by-law, 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 shall be required at its expense to make necessary
alterations, repairs, additions or deletions in, on or to the Leased Premises or
the Landlord's Property or any parts thereof and any equipment, machinery or
other facilities in, on, upon, or used in connection with or appurtenant to the
Leased Premises or any part thereof.
8.8 Indemnification
---------------
(a) Save as otherwise herein provided, the Tenant covenants with the
Landlord to indemnify
and save harmless the Landlord from any and all payments and liabilities
required to be
made in respect of the Leased Premises, but not including income taxes,
succession
duties, inheritance taxes and similar charges, personal to the Landlord,
and without
limiting the generality of the foregoing, shall indemnify and save harmless
the Landlord
from any and all liabilities, damages, costs, suits, actions and expenses
arising out of:
(i) any breach, violation or non-performance of any covenant, condition
or agreement in this Lease set forth and contained on the
part of the Tenant to be
fulfilled, kept, observed and performed;
(ii) any damage to property of the Tenant, any subtenant, licensee, and
all persons
claiming through or under him, them, or any of them, or damage to any
other
property howsoever occasioned by the use and occupation of the Leased
Premises;
(iii) any injury to person or persons, including death resulting at any
time therefrom,
occurring in or about the Leased Premises and/or sidewalks, loading or
other areas adjacent to the same.
9
(b) Such indemnification in respect of any such breach, violation and
non-performance,
damage to property, injury or death, occurring during the Term of the Lease
shall
survive any termination of the Lease, anything in this Lease to the
contrary
notwithstanding; provided however that such indemnification shall in no
event extend
to the direct primary and proximate results of the negligence of the
Landlord, its
agents, employees or representatives.
8.9 Assigning
---------
(a) The Tenant covenants that it shall not during the said Term, assign,
transfer or set over or otherwise by any act or deed procure the Leased Premises
or any of them to be assigned, transferred, set over or sublet unto any person
or persons whomsoever, without the consent in writing of the Landlord first had
and obtained, such consent not to be unreasonably withheld.
(b) All costs including legal fees and disbursements associated with any
request to assign or
assignment of this Lease shall be borne by the Tenant. Any request for
permission to assign this Lease shall be accompanied by a certified cheque
in the amount of $500.00,
made payable to the Landlord, on account of any such costs.
(c) In no event shall any assignment or subletting to which the Landlord may
have consented release or relieve the Tenant from his obligations fully to
perform all the terms, covenants and conditions of this Lease on his part to be
performed.
8.10 Leave in Repair
-----------------
The Tenant will, at the expiration or sooner determination of the said
Term, peaceably
surrender and yield up unto the said Landlord the Leased Premises with the
appurtenances, together with all buildings, fixtures or erections which at any
time during
the said Term shall be made thereon in good repair and condition in
accordance with the
Tenant's obligation to repair as herein before contained.
8.11 Tidy Condition
---------------
The Leased Premises and every part thereof shall be kept in a clean and
tidy condition,
and no waste paper, garbage, ashes or waste or objectionable material shall
be permitted
to accumulate thereon. The Tenant shall place in containers of a type
approved by the
Landlord all garbage and refuse, and such containers shall be deposited for
pickup at
such times and places as are designated in writing from time to time by the
Landlord.
8.12 Care of Premises
------------------
The Tenant shall heat the Leased Premises at its own expense during the Term
hereof at
all times to the extent necessary to prevent damage thereto by frost, and the
Tenant shall
maintain in good operating condition and to the satisfaction of the Landlord the
plumbing fixtures and heating and air conditioning equipment and shall keep the
same in clean and good working order. It is understood and agreed that in case
the said fixtures
10
and equipment or any part thereof shall be damaged or
destroyed or become incapable of performing their function, the Tenant shall
repair or replace the same.
LANDLORD AND TENANTS COVENANTS
---------------------------------
9. The Landlord and the Tenant agree with the other as follows:
9.1 Landlord May Perform
(a) That if the Tenant shall fail to perform or cause to be performed each
and every one of the covenants and obligations of the Tenant in this Lease
contained, the Landlord, without limiting any other remedy which it may have,
shall have the right at all times to enter the Leased Premises for the purpose
of curing any such default of the Tenant, and no such entry for such purpose
shall be deemed to work a forfeiture or termination of this Lease, and the
Tenant shall permit such entry.
(b) The Landlord shall give not less than five (5) days' notice to the
Tenant of its intention to enter the Leased Premises for such purpose but may
enter upon a shorter period of notice or without notice where, in the Landlord's
reasonable judgment, there is real or apprehensive emergency or danger to
persons or property, or where any delay in remedying such default would or might
materially prejudice the Landlord. For the purpose of curing the default of the
Tenant under the covenants of this Lease, the Landlord may perform or cause to
be done such things as may be necessary or incidental thereto, (including
without limiting the foregoing, the right to make repairs, installation,
erections, and expend moneys). The Tenant shall reimburse the Landlord upon
demand for all expenses incurred by the Landlord in remedying any such default,
together with interest thereon at Bank prime plus 2% per annum from the date
incurred until paid. The Landlord shall be under no obligation to remedy any
default of the Tenant, and shall not incur any liability to the Tenant for any
action or omission in the course of its remedying or attempting to remedy any
such default unless such acts amounts to intentional misconduct or gross
negligence of the Landlord.
9.2 Quiet Enjoyment
----------------
That upon the Tenant paying the rent hereby reserved and all amounts
recoverable
hereunder as rent reserved and any arrears under this Lease and any
interest payable by the Tenant in respect thereof, within the periods
limited herein for the payment hereof, and upon the Tenant observing and
performing the covenants and agreements herein
contained within the periods limited for the observance and performance
thereof, the
Tenant shall and may peaceably posses and enjoy the Leased Premises for the
Term
hereby granted without any interruption or disturbance from the Landlord or
any person or persons claiming by, through or under the Landlord.
9.3 Negligence
----------
That except when caused by the negligence of the Landlord, its agents or
contractors, the
Landlord shall not be liable nor responsible in any way for any personal
injury that may be suffered or sustained by the Tenant or any employee of the
Tenant or any customer of
11
the Tenant, or any other person who may be upon the
Leased Premises or in or about the Building of which the Leased Premises form
part or on the sidewalks, parking areas, lanes or street adjacent thereto, or
for any loss of or damage or injury to, property belonging to or in the
possession of the Tenant or any employee of the Tenant or any other person or
property caused by smoke, steam, water, ice, rain, snow or fumes which may leak,
issue or flow into the Leased Premises from any part of the Landlord's Property
or from the water sprinkler, drainage or smoke pipes or plumbing equipment
therein or from any other place of quarter or caused by or attributable to the
condition or arrangement of any electrical or other wiring or of the air
conditioning equipment or caused by anything done or omitted by any Tenant or
other occupant.
9.4 Default, Termination and Re-Entry
------------------------------------
If and whenever:
(a) the Tenant shall default in the payment of Rent or any other sum
required to be paid to the Landlord by any provision of this Lease; or
(b) the Tenant shall default in performing or observing any of its other
covenants or obligations under this Lease, and the Landlord shall have given to
the Tenant notice of that default, and at the expiration of five (5) days after
the giving of that notice the default shall continue to exist (or, in the case
of a default which cannot with due diligence be cured within a period of five
(5) days, the Tenant shall have failed to proceed promptly after the giving of
that notice to begin to cure the default or shall thereafter have failed to
carry out the curing of the default with diligence); or
(c) the Terms hereby created shall be seized or taken in execution by a
creditor of the
Tenant; or
(d) the Tenant shall make an assignment for the benefit of the creditors,
shall become
bankrupt, or shall make application for relief under the provisions of any
statute now or
hereafter in force concerning bankrupt or insolvent debtors, or any action
whatsoever,
legislative or otherwise, be taken with a view to the winding up,
dissolution, or
liquidation of the Tenant, or if a receiver or receiver manager is
appointed for all or a
portion of the property of the Tenant; or
(e) the Tenant abandons or attempts to abandon the Leased Premises or
attempts to
remove its goods and chattels from the Leased Premises so that there would
not be
sufficient goods on the Leased Premises subject to distress to satisfy all
rents and
arrears hereunder; or
(f) if the Leased Premises have become and remain vacant for a period of
seven (7) days or
are used by any other person or persons than those entitled to use
hereunder.
then and in any of these cases the then current months rent together with the
rent for the three (3) months next ensuing shall immediately become due and
payable, and the Landlord, may, without notice or any form of legal process
whatsoever immediately re-enter upon the Leased Premises or any part thereof in
the name of the whole, whereupon this Lease shall terminate immediately,
anything contained herein or in any statute or
12
law to the contrary
notwithstanding, provided however that termination shall be wholly without
prejudice to the right of the Landlord to recover arrears of rent or damages for
any antecedent breach of covenant on the part of the Tenant and provided
further, that notwithstanding that termination, the Landlord may subsequently
recover from the Tenant all losses, damages, costs (including, but without
limitation, legal costs on a solicitor client basis) and expenses whatsoever
suffered by reason of the Lease having been prematurely determined;
9.5 The Tenant waives and renounces the benefit of any present or future
statute purporting to limit or qualify the Landlord's right to distrain. In
case of removal by the Tenant of the goods and chattels of the Tenant from the
Leased Premises, after any default by the Tenant of the provisions of this
Lease, the Landlord may follow the same for thirty (30) days.
9.6 In any of the cases described above, the Landlord, in addition to the
other rights hereby reserved shall have to re-enter the Leased Premises as agent
of the Tenant, either by force or otherwise, without being liable for any
prosecution therefore and on notice to the Tenant, either by force or otherwise,
without being liable for any prosecution therefore and on notice to the Tenant
to re-lease or sublet, as the Tenant's agent, the Leased Premises or any part
thereof, and to apply the proceeds of that re-leasing or subletting on account
of rent due or in satisfaction of the breach of any covenant or agreement herein
contained and the Tenant shall become liable for the deficiency, if any,
together with the Landlord's reasonable expenses of re-taking and re-letting,
including legal fees as between solicitor and client, and the Landlord shall
nevertheless be entitled to recover from the Tenant 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 any new
tenant of the Leased 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 shall not have ceased and the
Tenant agrees to pay that amount as so determined promptly on demand.
9.7 Builders' Liens
----------------
(a) The parties hereto agree that any building, erection, alteration or
improvements placed or erected upon the Leased Premises shall become a part
thereof and shall not be removed and shall be subject to all the provisions of
this Lease. No building, erection, alteration or improvement shall be erected
upon the Leased Premises without the prior written consent of the Landlord which
consent shall not be unreasonably withheld. The Tenant shall not suffer or
permit any lien under the Builders' Lien Act or any like statute to be filed or
registered against the Leased Premises or any fixtures or improvements thereon,
by reason of work, labour, services and materials supplied or claimed to have
been supplied to the Tenant or anyone holding any interest in any part thereof
through or under the Tenant.
(b) If any such lien shall at any time be filed or registered the Tenant
shall procure registration of a discharge within ten (10) days after the
lien has come to the notice or
knowledge of the Tenant, provided however that:
13
(i) should the Tenant desire to contest in good faith the amount or
validity of any lien and shall have so notified the Landlord, and
(ii) if the Tenant shall have deposited with the Landlord or paid into
Court to the credit of any lien action the amount of the lien claim plus a
reasonable amount for costs, then the Tenant may defer payment of such lien
claim for a period of time sufficient to enable the Tenant to contest the claim
with due diligence, provided always that the Leased Premises or any part thereof
not the Tenant's leasehold interest therein shall not thereby become liable to
forfeiture or sale.
(c) The Tenant shall defend on behalf of the Landlord at the Tenant's sole
cost and expense, any action, suit or proceeding which may be brought
thereon or for the enforcement of such lien, liens or orders, and the Tenant
shall pay any damages and satisfy and discharge any judgments entered
thereon and save harmless the Landlord from any claim
or damage resulting therefrom.
(d) It is further agreed that the Landlord may, but shall not be obliged to,
discharge any such lien if the Tenant shall fail to do so if in the Landlord's
judgment the whole premises or any part thereof of the Landlord's or the
Tenant's interest therein become liable to any forfeiture or sale or is
otherwise in jeopardy, and any amount paid by the Landlord in so doing, together
with all reasonable costs and expenses of the Landlord in connection therewith,
shall be reimbursed to the Landlord by the Tenant on demand and may be recovered
as rent in arrears.
(e) Nothing herein contained shall authorize the Tenant, or imply any
consent or agreement on the part of the Landlord, to subject the Landlord's
estate and interest in the whole
premises to any liens.
9.8 Expropriation
-------------
(a) If the whole or any part of the Landlord's Property of which the Leased
Premises form part shall be acquired or condemned by expropriation for a public
or quasi-public use or purpose, then the Term of this Lease, at the option of
the Landlord, shall cease and terminate after the date of title vesting and all
rent and other moneys shall be paid up to that date and Tenant shall have no
claim against the Landlord for the value of any unexpired Term of this Lease.
(b) In the event of any such expropriation, the Tenant shall not be entitled
to any part of the award, as damages or otherwise, for such expropriation and
the Landlord is to receive the full amount of such award, the Tenant hereby
expressly waiving any right or claim to any part thereof.
(c) Although all damages in the event of any expropriation are to belong to
the Landlord
whether such damages are awarded as compensation for decrease in value of
the
leasehold or to the fee of the Leased Premises, the Tenant shall have the
right to claim and recover from the expropriating authority, but not from
the Landlord, such compensation as may be separately awarded or recoverable
by the Tenant in the
Tenant's own right on account of any and all damages to the Tenant's
business by
reason of the expropriation and for and on account of any costs or loss to
which the
Tenant may be put as a result thereof.
14
9.9 Damage or Destruction of Leased Premises
---------------------------------------------
(a) If and whenever the Leased Premises shall be destroyed, demolished or
damaged by fire or other cause, to such an extent that the same shall not be
capable with due diligence of being repaired, restored or rebuilt within a
period of one hundred and twenty (120) days after the happening of such
destruction, demolition or damage, then the Landlord, at its option, may
terminate this Lease upon thirty (30) days' written notice to the Tenant given
within fifteen (15) days of the date of such destruction or damage, and the
Tenant shall thereupon immediately surrender the Leased Premises and this Lease
to the Landlord and the rent shall be apportioned to the date of such damage or
destruction.
9.10 Status Statement
-----------------
Within ten (10) days after request therefor by Landlord, or in the event that
upon any sale, assignment, lease or mortgage of the Leased Premises, Tenant
agrees to deliver in a form supplied by Landlord a certificate to any proposed
mortgagee or purchaser, or to Landlord certifying (if such be the case) that
this Lease is in full force and effect and that there are no defenses or
set-offs thereto, or stating those claimed by Tenant.
MISCELLANEOUS
-------------
10. The Landlord and the Tenant further agree with the other as follows:
10.1 Landlord's Right to Do Work
-------------------------------
The Landlord and persons authorized by the Landlord shall have the right to
make additions, improvements, installations, alterations and repairs to the
Landlord's Property
(including in particular:
(a) the right to install and maintain pipes, wires, ducts and other
installations in, under or through the Leased Premises with relation to the
supply of services to the Landlord's Property and including the right to enter
the Leased Premises for all such purposes; and
(b) the right to build an addition to the Property on or about the parking
lot, thereby creating additional rental and common areas
and the Landlord may cause obstructions or interference with the use or
enjoyment of the Leased Premises as may be reasonably necessary for the purposes
aforesaid provided such obstruction or interference is not such as would prevent
the Tenant, making reasonable adjustment to the conduct of its business, from
continuing to carry on its business in the Leased Premises; and the Landlord
shall make all such additions, improvements, installations and repairs as
expeditiously as reasonable possible. The Tenant agrees that the Tenant's
Proportionate Share may be amended accordingly, according to and changes in the
proportion of the Leased Premises to the gross rental area of the Property.
15
10.3 Tenant's Signs
---------------
The Tenant at any time and from time to time at its own expense, and after
obtaining the written consent of the Landlord, may install and maintain at the
front of the Leased Premises any signs, advertising material, electric signs,
and other signs capable of being illuminated, all of which signs and advertising
material shall remain the property of the Tenant, who shall remove the same at
the expiration of the Terms hereof; provided it shall make good all damage
caused by such removal. The erection, size, location and design of all signs
outside the front of the Leased Premises shall be subject to the prior written
approval of the Landlord or its architects, which shall not be unreasonably
withheld, taking into account the character and construction of the Leased
Premises, the nature of the Tenant's business, and the requirements of all
relevant authorities; provided such signs shall meet requirements of municipal
authority.
10.4 Overholding
-----------
If, at the expiration of this Lease, the Tenant shall, with the consent of the
Landlord, hold over for any reason, the tenancy of the Tenant thereafter shall,
in the absence of written agreements to the contrary, be from month to month at
a rent per month equal to the amount that is one-tenth of the annual rental
payable by the Tenant in respect of the immediately preceding year under this
Lease, such rent to be payable in advance on the first day of each month, and
such tenancy shall be upon and subject to all the terms and conditions of this
Lease, except that the tenancy shall be from month to month without any right of
renewal.
10.5 Landlord's Re-Letting Signs
-----------------------------
The Landlord shall have the right, within six (6) months from the expiration of
the Term, to place upon the Leased Premises a notice of reasonable dimensions
and reasonably placed so as not to interfere with the business of the Tenant,
stating that the Leased Premises are for sale or to let, and further provided
that the Tenant will not remove such notice or permit the same to be removed.
10.6 Collection of Other Amounts Due
-----------------------------------
Any sums, costs, expenses or other amounts from time to time due and payable by
the Tenant to the Landlord under the provisions of this Lease, whether by way of
indemnity or otherwise, and whether or not expressed to be rent hereunder, may
at the option of the Landlord be treated as and deemed to be rent, in which
event the Landlord will have all remedies for the collection thereof, when in
arrears, as are available to the Landlord for the collection of rent in arrears.
10.7 Interest on Amount in Arrears
---------------------------------
When rent or any other amount payable hereunder by the Tenant to the Landlord
shall be in arrears, the same shall bear interest at the rate of EIGHTEEN (18%)
percent per annum, calculated on a daily basis, until paid and the Landlord
shall have all remedies for the collection of such interest, if unpaid after
demand, as in the case of rent in
16
arrears, but this stipulation for interest
shall not prejudice or affect any other remedies of the Landlord under this
Lease.
10.8 Evidence of Payment
---------------------
The Tenant shall from time to time, at the request of the Landlord, produce to
the Landlord satisfactory evidence of the due payment by the Tenant of all
payments required to be made by the Tenant under this Lease, except payments of
rent required to be made to the Landlord.
10.9 Inspection
----------
During the Term hereby created, any person or persons may inspect the Leased
Premises and all parts thereof at all reasonable times on producing a written
order to that effect signed by the Landlord, or its agents.
10.10 Remedies of Landlord are Cumulative
---------------------------------------
(a) The remedies of the Landlord specified in this Lease are cumulative and
are in addition to any remedies of the Landlord at law or equity, and no remedy
shall be deemed to be exclusive, but the Landlord may from time to time have
recourse to one or more or all of the available remedies specified herein or at
law or equity.
(b) In addition to any other remedies provided in this Lease, the Landlord
shall be entitled to
apply to restrain by injunction any violation or attempted or threatened
violation by the
Tenant of any of the covenants hereof.
10.11 Effect of Waiver by Landlord
--------------------------------
(a) The failure of the Landlord to insist upon the strict performance of any
covenant of this
Lease shall not waive such covenant, and the waiver by the Landlord of any
breach of any covenant of this Lease shall not waive such covenant in
respect of any future or
other breach.
(b) The receipt and acceptance by the Landlord of rent or other monies due
hereunder with
knowledge of any breach of any covenant by the Tenant shall not waive such
breach.
(c) No waiver by the Landlord shall be effective unless made in writing.
10.12 Condoning, Etc.
----------------
It is further agreed that any condoning, excusing or overlooking by the
Landlord, if any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, agreement, proviso or condition herein
contained shall not operate as a waiver of the Landlord's rights hereunder in
respect of any subsequent default, breach or non-observance, nor as to defeat or
affect in any way the rights of the Landlord herein in respect of such
subsequent default, breach or non-observance.
17
10.13 Subordination
-------------
The Tenant covenants and agrees with the Landlord that the Tenant shall from
time to time upon the written request of the Landlord, enter into an Agreement
subordinating the Term hereby demised and the rights of the Tenant hereunder to
any mortgage or ground lease, present or future, which includes the Leased
Premises. Failure to provide such Agreement within 7 days of the Landlord's
written request for same shall be deemed to be a breach of this Lease by the
Tenant.
10.14 Impossibility of, or Delay in Performance
----------------------------------------------
Whenever and to the extent that the Landlord shall be unable to fulfill or shall
be delayed or restricted in the fulfillment of any obligation hereunder in
respect of the supply or provision of heating or cleaning services, or any other
service or utility or the doing of any work by reason of being unable to obtain
the material, goods, equipment service, utility or labour required to enable it
to fulfill such obligation or by reason of any statute, law or order-in-council
or any regulation or order passed or made pursuant thereto or by reason of the
order or direction of any governmental department or officer or other authority
or by reason of not being able to obtain any permission or authority required
thereby or by reason of any other cause beyond its control or of the foregoing
character or not, the Landlord shall be relieved from the fulfillment of such
obligation 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 by reason of any such failure or cause.
10.15 No Liability for Indirect Damage, Etc.
-------------------------------------------
Under no circumstances shall the Landlord be liable for indirect or
consequential damage or damages for personal discomfort or illness by reason of
the non-performance or partial performance of any covenants of the Landlord
herein contained including the heating of the Leased Premises or the operation
of the air conditioning equipment, elevators, plumbing or other equipment in the
said Building or the Leased Premises.
10.16 Lease Entire Agreement
------------------------
There is no promise, representation or undertaking by or binding upon the
Landlord with respect to any alteration, re-modelling or decorating of or
installation of equipment or fixtures in the Leased Premises of the Building
except such, if any, as is expressly set forth in this Lease and this Lease
contains all the agreements and conditions made between the parties hereto.
11. Notices, Etc.
--------------
(a) any notice, request or demand herein provided for or given hereunder, if
given by the
18
Tenant to the Landlord, shall be sufficiently given if mailed by registered
mail was follows:
Xxxxx Holdings Ltd.
c/o Xxx Xxxxx
3rd Floor, 00 Xxxx 0xx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(b) Any notice herein provided for or given hereunder if given by the
Landlord to the Tenant, shall be sufficiently given if mailed by
registered mail as follows:
RAH Media Ventures Corporation
#610 - 938 Xxxx Street, Vancouver, British Columbia, V6Z 1N9
(c) Any notice mailed as aforesaid shall be conclusively deemed to have been
given on the third business day following the day on which such notice is
mailed as aforesaid. Either the Landlord or the Tenant may at any time give
notice in writing to the other of any change of address of the party giving
such notice, and from and after the giving of such
notice the address therein specified shall be deemed to be the address of
such party for
the giving of such notice thereafter.
ARBITRATION
-----------
12. In the event that any agreement is called upon to be made between the
parties hereto concerning the renovation or repair of the demised premises, the
renewal term of Lease or any matter or thing concerning or touching the Lease
then the matter shall be referred to a single arbitrator who shall and be
appointed pursuant to the provisions of the Arbitration Act being Chapter 14,
R.S.B.C. 1960 and amendments thereto, and the award of the arbitrator shall be
binding upon the parties hereto. If the parties cannot agree on a sole
arbitrator within seven (7) days of either the Lessor or the Lessee making a
demand upon the other for arbitration then the party demanding an arbitration
shall be at liberty to make an application to a Supreme Court Judge of the
Province of British Columbia for an appointment of an arbitrator. In the event
that an arbitration is carried out, the award of costs to the arbitration shall
be in the discretion of the arbitrator.
MISCELLANEOUS
-------------
13. Unless the contrary intention appears, the words "Landlord" and "Tenant"
wherever they appear in this Lease shall mean respectively "Landlord, his
executors, administrators, successors and/or assigns", and "Tenant, its
administrators, successors and/or assigns", and if there is more than one Tenant
or Landlord, or the Tenant or Landlord is a female person or a corporation, this
Lease shall be read with all grammatical changes appropriate by reason thereof;
and words importing the singular shall include the plural (and vice versa) where
the context or circumstances so require; and if two or more persons are tenant,
all their obligations shall be joint and several.
19
13.1 The Landlord and Tenant agree that the paragraph headings in this Lease
form no part of this Lease, and shall be deemed to have been inserted for
convenience for reference only.
13.2 Any costs with respect to registration of this Lease in the Land Title
Office, including costs of provision of a plan of the Leased Premises acceptable
for such registration purposes, shall be paid by or otherwise be for the account
of the Tenant.
13.3 This Lease shall endure to the benefit of and be binding upon the
Landlord and the Tenant and their respective heirs, administrators, successors
and assigns.
OPTION TO RENEW
-----------------
14. If the Tenant duly and regularly pays the rent and charges required
pursuant to this Lease to be paid by the Tenant and performs all and every of
the covenants, provisions and agreements herein on the part to be paid and
performed, whether enforced by the Landlord or not, and at the expense of the
Tenant, the Tenant may, upon six (6) months notice in writing expiring prior to
the termination of the Term, renew the within Lease for a further term of TWO
(2) years on the same terms and conditions as set out in this Lease, save and
except as to the rent payable pursuant to paragraph 5 of this Lease and save and
except as to this renewal clause. The aforesaid TWO (2) year term shall be the
TWO (2) years commencing on the day subsequent to the termination of the Term of
this Lease. The rent to be paid by the Tenant for the renewal lease shall be
agreed by the Landlord and the Tenant together. In the event that the parties
are unable to agree as to the rent to be paid within three (3) months prior to
the expiry of the Term, then the rent to be paid shall be fixed by arbitration.
In any event the rent shall not be less than the rent due in the last year of
the Term. PROVIDED that in the event that the matter of the rent is not
determined pursuant to this clause upon the expiration of the within term, the
Tenant shall continue paying the monthly rent set out herein plus ten percent
(10.00%) until the matter of rent is agreed upon or determined pursuant to
arbitration as set out herein, and such monthly rent shall be credited to the
amount found to be due as rent for the renewal term by the arbitrators.
Parking Spaces
---------------
15. The Landlord shall allow the Tenant the use of two parking spaces
located on the Lands.
Garage Opener
--------------
16. The Tenant shall pay the sum of Fifty ($50) for each garage opener
supplied by the Landlord.
17. Legal Fees
-----------
If the Landlord shall consider it desirable to retain the services of a lawyer
or any other person reasonably necessary for the purpose of assisting the Lease
or in enforcing any of its
20
rights hereunder in the event of a default on the
part of the Tenant, the Landlord shall be entitled to collect from the Tenant
the cost of such services as it were rent.
IN WITNESS WHEREOF the parties hereto have hereunto duly executed these
presents:
XXXXX HOLDINGS LTD., by its )
authorized signatory )
/S/ XXXXX XXXXX )
________________________________ )
Name: XXXXX XXXXX )
)
)
RAH MEDIA VENTURES )
CORPORATION by its authorized )
signatory )
/S/ XXX XXXXXXX )
________________________________ )
Name: XXX XXXXXXX )
)
)
