LICENCE AGREEMENT
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THIS AGREEMENT MADE the 28th day of October, 2003.
BETWEEN:
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
(hereinafter called the "Licensor")
OF THE FIRST PART
-and -
3577996 CANADA INC.
(hereinafter called the "Licensee")
OF THE SECOND PART
WHEREAS:
1. the Licensor is the owner and operator of a chain of membership warehouse
clubs under the trade name/trade xxxx SAM'S CLUB at several locations
within Canada;
2. the Licensee has requested and the Licensor has agreed to grant it
licences to operate certain cellular telephone service sale kiosks in
certain of the Licensor's clubs;
3. the Licensor and the Licensee wish to enter into this Agreement for the
purposes of establishing the framework within which the aforesaid licences
shall operate;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants, conditions and agreements herein contained, other good and valuable
consideration and the sum of Five Dollars ($5.00) paid by each party to the
other (the receipt and sufficiency of which are hereby acknowledged), the
parties hereto do hereby covenant and agree, each with the other, as follows:
1.00 Definitions and Recitals
1.01 For the purposes of this Agreement the following terms shall have the
meanings hereafter ascribed to them:
"Business Day" shall mean any day of the week except a Saturday, Sunday,
or a statutory holiday in the Province of Ontario;
"Clubs" shall mean those membership warehouse establishments owned and
operated by the Licensor from time to time (including, without in any way
limiting the generality of the foregoing, any indoor or enclosed mall area
within which the Licensor is entitled to sell merchandise) as more
particularly set forth in the Licence Schedules; and "Club" shall mean
any one of the Clubs;
"Gross Sales" shall mean the entire amount of all revenue and receipts,
whether from cash, cash equivalent, credit, or otherwise, of all sales of
merchandise (including gift and merchandise certificates), services
provided, and any other business activity conducted in connection with the
Licensee's Businesses, including mail or telephone orders received or
filled in connection with any of the Licensee's Businesses, deposits not
refunded to purchasers, orders taken although said orders may be filled
elsewhere, sales to employees, sales through vending machines or other
devices, and sales by a concessionaire, licensee, third person or
otherwise in relation to the Licensee's Businesses. Each sale upon
installment or credit shall be treated as a sale for the full price in the
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year during which such sale was made, irrespective of the time when
Licensee receives payment from its customer. No deduction shall be allowed
for uncollected or uncollectable credit accounts; "Gross Sales" shall not,
however, include (i) any sums collected and paid out for any sales or
goods and services tax imposed by any duly constituted governmental
authority on any sale effected in connection with the Licensee's
Businesses; (ii) the exchange of merchandise between the various locations
of the Licensee, if any, where such exchanges are made solely for the
convenient operation of the business of the Licensee and not for the
purpose of consummating a sale which has theretofore been made in
connection with one of the Licensee's Businesses and/or for the purpose of
depriving the Licensor of the benefit of a sale which otherwise would be
made in connection with one of the Licensee's Businesses; (iii) the amount
of returns to shippers or manufacturers, nor the amount of any cash or
credit refund made upon any sale where the merchandise sold, or some part
thereof, is thereafter returned by purchaser and accepted by the Licensee;
or (iv) sales of the Licensee's trade fixtures;
"Licence Schedule" shall mean the executed licence schedules forming
Schedule "A-l to and including A-4" attached hereto and forming a part of
this Agreement, together with any New Club Licence Schedules;
"Licensee's Business" shall mean the operation of a cellular telephone
service sale kiosk within a Licensed Premise, whereby only the following
services are provided to members of the Clubs: cellular telephone services
representing no less than three (3) carriers operating in Canada (unless
otherwise agreed by Licensor), internet services and satellite television
services together with such other services and/or merchandise as may be
approved by the Licensor in writing from time to time, in its sole,
absolute and unfettered discretion, which approval may be withheld for any
or no reason whatsoever and which may be subject to removal of an existing
type of merchandise previously approved by Licensor. Notwithstanding the
foregoing and for greater certainty, the Licensee's Business shall not
include the sale of any merchandise or provision of any service which in
the sole, absolute and unfettered opinion of the Licensor from time to
time, conflicts with any aspect or category of the merchandise and/or
services sold by the Licensor; and "Licensee's Businesses" shall mean more
than one or all of the Licensee's Businesses collectively, as the case may
be;
"Licensed Premise" shall mean such physical area within a Club as the
Licensor shall designate from time to time in its sole, absolute, and
unfettered discretion for the Licensee's Business, with respect to those
Clubs for which a Licence Schedule has been executed by the parties from
time to time. For greater certainty "Licensed Premise" shall not include
any Licensed Premise with respect to which the application of this
Agreement has been terminated save and except as referred to in Article
12.00 and any other provision of this Agreement expressed to survive the
termination of this Agreement; and "Licensed Premises" shall mean more
than one or all of the Licensed Premises collectively, as the case may be;
"Monthly Licence Fee" shall mean in respect of each individual Licensee's
Business, unless otherwise specified in a Licence Schedule for a
particular Licensee's Business, one thousand dollars ($1000);
"New Club Licence Schedule" shall mean a new club licence schedule
executed by the parties in substantially the form set forth in Schedule
"B" attached hereto and forming part of this Agreement;
"Percentage Licence Rate" shall mean in respect of each individual
Licensee's Business unless otherwise specified in a Licence Schedule for a
particular Licensee's Business, nine (9%) percent;
"Year" shall mean the twelve (12) month period from and including February
1 of each calendar year to and including January 31 of the following
calendar year. Notwithstanding the foregoing, the first "year" of the Term
with respect to each of the Licensee's Businesses shall be the period from
and including the Commencement Date to and including January 31 of the
calendar year following that within which the Commencement Date falls.
..02 The recitals hereinbefore contained are true and correct and form an
integral part of this Agreement.
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Licence
2.01 Subject to the provisions of this Agreement, the Licensor hereby grants to
the Licensee the non-exclusive right and licence to carry on the Licensee's
Businesses during the Term for the purposes set forth in section 5.01.
Notwithstanding the foregoing, the sales area of the Licensee is to be an
integral part of each Club, and neither party shall limit access thereto or the
flow of Club member traffic through such area. For greater certainty, the
Licensor shall at all times maintain care, control and access to the Licensed
Premises.
2.02 The Licensor shall be entitled from time to time to unilaterally relocate a
Licensed Premise within a Club for any reason whatsoever acting reasonably, by
the delivery of written notice to that effect to the Licensee. The Licensor
shall be further entitled if the Licensor ceases operation of a Club and
commences the operation of a new Club in the same market area, to unilaterally
relocate the Licensed Premise of the old Club to the new Club, by the delivery
of written notice to that effect to the Licensee. The Licensee shall, comply
with the said notice and effect such work as the Licensor stipulates is
necessary for it to make the Licensed Premise comply with the said notice, and
the Licensor shall reimburse the Licensee for reasonable costs actually incurred
to effect such relocation (which for greater certainty shall not include any
charge for administrative work or overhead of the Licensee connected with such
move, or for any loss of business or lack of trade during any period within
which the Licensee's business operations are interrupted by the Licensor). In
the event that any such relocation precludes the Licensee from operating its
business as a result of work necessary to be effected by the Licensor to
facilitate such relocation, the Licensee shall not be required to pay the
Monthly Licence Fee in connection with the affected Licensed Premise for the
period of such interruption. The Licensor shall be entitled, acting reasonably,
to designate the time and manner within which the aforesaid work shall be
effected by the Licensee by the inclusion of same in the aforesaid notice, in
which case the Licensee shall comply with same. The Licensee covenants and
agrees to effect such work in a diligent and expedient fashion and to ensure
that the area wherein the Licensed Premise was formerly located is restored to
its original condition.
2.03 The Licensee, its employees, agents, contractors, service personnel, and
customers shall have, subject to section 2.04, in common with all other persons
entitled thereto, free access to and use of all entrances, stairways, aisles,
corridors, washrooms, and other areas open to Club members within a Club from
time to time as the Licensor shall designate during such time(s) as the Licensee
shall operate its business within the Licensed Premise in such Club.
2.04 Notwithstanding section 2.03, the Licensee, its employees, agents,
contractors, and service personnel shall only have access to such portions of a
Club as the Licensor or its Club manager shall designate from time to time for
the purpose of transporting supplies, equipment, merchandise, goods, trade
fixtures, and/or such other chattels as the Licensee may require from time to
time, to and from the Licensed Premise. The Licensor shall retain exclusive
possession and control of all keys and security codes to the Club and its
security systems.
2.05 The Licensor shall have the right to install through or upon the Licensed
Premises such pipes, aisles, conduits, wires, apparatus, and other physical
installations in connection with any service system as may be proper or useful
for the Licensor's operations, but the same shall be installed so as to
interfere as little as possible with the Licensee's use of the Licensed
Premises.
2.06 The Licensee acknowledges that it has examined the Licensed Premises in the
Clubs and is thoroughly familiar with the condition thereof and accepts each
Licensed Premise in the condition existing as at their respective Commencement
Dates.
2.07 In the event that the parties shall from time to time desire that this
Agreement shall extend to any additional retail premises operated by the
Licensor, the parties shall give effect to same by executing a New Club Licence
Schedule.
Term
3.01 Subject to section 3.02, this Agreement and the licences created pursuant
to this Agreement shall commence on the date hereinabove set forth and subject
to earlier termination as provided for in this Agreement, continue in effect for
a term ending at 12:00 midnight on the 29th day of October, 2005 (the "Term").
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3.02 Notwithstanding the foregoing, in the event that a Licence Schedule
stipulates a later or earlier date of expiration than that set forth in section
3.01, the "Term" in respect of the Licensee's Business governed by such Licence
Schedule shall end at 12:00 midnight on the date set forth in the said Licence
Schedule.
4.00 Licence Fees
4.01 The Licensee shall pay to the Licensor in respect of each of the Licensee's
Businesses, the Monthly Licence Fee each month of the Term, in advance, on the
first day of each calendar month, commencing with respect to each of the
Licensee's Businesses from and including the date upon which each such
Licensee's Business becomes subject to this Agreement (the "Commencement Date").
If the Commencement Date falls on a date other than the first day of a calendar
month, the Licensee shall pay to the Licensor on the Commencement Date the sum
equal to the Monthly Licence Fee apportioned for the number of days remaining in
the calendar month from and including the Commencement Date to the end of that
calendar month.
4.02 In addition to the Monthly Licence Fee, the Licensee shall also pay to the
Licensor a further amount equal to the amount, if any, by which the product
derived by multiplying the total Gross Sales made by Licensee, its employees,
concessionaires, agents, licensees, contractors, successors and assigns in
connection with such Licensee's Business during the immediately preceding
calendar month by the Percentage Licence Rate exceeds the Monthly Licence Fee
for such immediately preceding calendar month (the "Percentage Licence Fee").
The Licensee shall pay the Percentage Licence Fee to the Licensor monthly in
arrears on the 15th day of each calendar month. For greater certainty, such
payments shall be made with respect to the Gross Sales attributable to the
immediately preceding calendar month.
4.03 In addition, the Licensee shall bear the cost of and pay to the Licensor
all applicable sales, goods and services, value added and other taxes (the
"Taxes") exigible from time to time with respect to any payment by it under this
Agreement, in accordance with the provisions of the legislation imposing such
tax or taxes. The Licensee shall pay the Taxes to the Licensor on the date that
it is required to make the payment to the Licensor to which such Taxes apply.
4.04 In the event that the Gross Sales in respect of any Licensee's Business are
less than $7,700 per month for three (3) consecutive months during the Term,
Licensor may terminate this Agreement or any license created pursuant to this
Agreement in respect of the applicable Licensee's Business.
4.05 The Licensee shall deliver to the Licensor on the 15th day of each calendar
month, a sales report (the "Sales Report") for the immediately preceding
calendar month period containing such information and in the format set forth in
Schedule "C" attached hereto and forming a part of this Agreement. For greater
certainty, the parties acknowledge and agree that the Sales Report shall be
prepared both individually for each of the Licensee's Businesses and for all of
them collectively, and shall specify such information as is contemplated by
Schedule "C" attached hereto and forming a part of this Agreement. The Licensee
further covenants to provide a Sales Report detailing the foregoing information
for the immediately preceding year applicable to the Licensee's Businesses, on
the date which is twenty-one (21) days following the completion of the Term. The
Licensee covenants and agrees to make all of its records pertaining to the
Licensee's Businesses available to the Licensor and/or its agents for inspection
and/or audit forthwith following the receipt by it of five (5) Business Day's
prior written notice from the Licensor requesting same. The Licensee covenants
and agrees to retain all such records for a minimum of two (2) years following
the end of each year of the Term. The Licensee shall provide the Sales Report to
the Licensor prepared using Microsoft Excel(TM) on a 3.5 inch computer disk, as
well as on paper.
4.06 The Licensee covenants and agrees to re-adjust any Monthly Licence Fee,
Percentage Licence Fee, and/or Taxes that it has paid from time to time in
amounts that are less than the amounts provided for in this Agreement forthwith
following a request therefor from the Licensor, and/or forthwith following its
becoming aware that it has effected such an underpayment to the Licensor. If a
Sales Report submitted by the Licensee in respect of one of the Licensee's
Businesses is found to be incorrect, so that such error resulted in an
under-reporting of Gross Sales to the Licensor equal to or greater than three
(3%) percent of the Gross Sales originally reported to the Licensor, the
Licensee shall pay all costs incurred by the Licensor with respect to any
audit(s) and/or inspection(s) of the Licensee's books and records for all of the
Licensee's Businesses which uncovered such error, including, without limiting
the generality of the foregoing, the costs of any internal and/or external
auditors, accountants, and/or associates of the Licensor directly involved with
such process.
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4.07 The Licensee shall pay to the Licensor interest on any monies owing to the
Licensor under this Agreement at the rate of the annual rate of interest
announced from time to time by The Toronto-Dominion Bank as a reference rate
then in effect for determining interest rates on Canadian dollar commercial
loans in Canada plus 2%. Such interest shall accrue from the date such monies
first become due and payable to the Licensor and shall be calculated and
compounded semi-annually.
4.08 The Licensee covenants and agrees to deliver to the Licensor
contemporaneously with its execution of this Agreement, and if requested by the
Licensor from time to time, contemporaneously with its execution of a New Club
Licence Schedule, copies of all of its then most current financial statements,
including without limiting the generality of the foregoing, balance sheet,
income statement, statement of retained earnings, and cash flow statement,
whether or not same have been independently audited and/or prepared by a
chartered accountant. In addition to the foregoing, in the event that any of
such financial statements shall be audited and/or prepared by a chartered
accountant from time to time, the Licensee shall forthwith deliver copies of any
audit report or other report as to the adequacy of such financial statements to
the Licensor. The Licensor covenants and agrees to maintain any financial
statements and/or other information provided to it under this section 4.08 in
the strictest of confidence and shall not disclose any of same to any other
person.
5.00 Use of Licensed Premises
5.01 The Licensee shall be entitled to use each Licensed Premise for the purpose
of carrying on the Licensee's Business and for no other purpose, save and except
for such other purpose as the Licensor may approve in writing from time to time
following the receipt of a written request therefor from the Licensee which
approval may be withheld for any or no reason whatsoever.
5.02 The Licensee covenants and agrees that, unless otherwise agreed by the
parties in respect of a particular item, the price of all merchandise offered
for sale at each Licensed Premise in connection with the Licensee's Business
shall at any time and from time to time be at least ten percent (10%) less than
the lowest price of substantially similar merchandise offered for sale anywhere
in Canada by Licensee other than in connection with the Licensee's Businesses,
excluding where the price on certain merchandise has been reduced solely as a
result of the purchase of a corresponding service contract and further excluding
prepaid cards relating solely to the purchase of cellular telephone air time.
The Licensee further covenants and agrees that the price of all services offered
for sale at each Licensed Premise in connection with the Licensee's Business
shall at any time and from time to time be the same or lower than the price of
similar services offered for sale anywhere in Canada by Licensee other than in
connection with the Licensee's Businesses. Without limiting the generality of
the foregoing, Licensor shall be entitled to prohibit Licensee from offering for
sale or from continuing to offer for sale, as applicable, any merchandise or
services where Licensor determines in its sole, absolute and unfettered
discretion, that the pricing of such merchandise or services is too high to be
consistent with the Licensor's philosophies, culture and standards in force from
time to time.
5.03 The Licensee shall carry on each of the Licensee's Businesses during the
entirety of such hours as the Licensor shall specify from time to time, in its
sole absolute and unfettered discretion, as its hours of operation for the
applicable Club, or such lesser hours as the Licensor may designate by the
delivery of written notice to that effect to the Licensee.
5.04 The Licensee hereby acknowledges that its business reputation, intended use
of the Licensed Premises as set forth in section 5.01, potential for payment of
Percentage Licence Fees and ability to generate patronage to the Licensed
Premises and the Clubs were all relied upon by the Licensor and served as
significant and material inducements contributing to the Licensor's decision to
enter into this Agreement with the Licensee. The Licensee hereby covenants and
agrees: (i) to carry on the Licensee's Businesses under no trade name whatsoever
without the Licensor's prior written consent which may be withheld for any
reason whatsoever, (ii) to commence on the Commencement Date and thereafter
continuously use the Licensed Premises for the retail sale of its goods or
services in accordance with its permitted use set forth in section 5.01, during
the hours designated by the Licensor pursuant to section 5.03.
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Operating Standards / Member Complaints
6.01 The Licensee shall operate its business in an efficient, high class and
reputable manner. In addition, the Licensee will conduct all business in
conjunction with and abiding by the Licensor's philosophies, culture and
standards in force from time to time. The Licensee agrees with the Licensor that
the Licensee's business will be operated in a diligent and business-like manner
in conformity with the Licensor's standards and policies as may be amended from
time to time. The Licensee's employees will at all times, while on the
Licensor's premises, maintain a pleasant and courteous attitude toward Club
members. While on the Licensor's premises, the Licensee's employees shall be
subject to the Licensor's rules and regulations as may be amended from time to
time. No smoking, food or drink will be allowed on the sales floor. The personal
appearance of the Licensee's employees, agents and workmen must be neat and
clean. The Licensee will instruct each employee to refer to the Licensor's Club
management for details on all such rules and regulations. The Licensee shall not
permit any odours or noise which are objectionable or unpleasant to the Licensor
or its members to emanate within a Club nor take any other action which would
constitute a nuisance or would disturb or endanger the Club members or occupants
of the Club, nor do anything which would tend to injure the reputation of the
Club or the Licensor.
6.02 The Licensee shall not conduct within the Licensed Premises any "fire",
"bankruptcy", "going-out-of-business," "liquidation," or other similar sale,
and/or operate within the Licensed Premises a "wholesale" or "factory outlet"
store, a "cooperative store", a "second hand" store, a "surplus" store or a
store commonly referred to as a "discount house".
The Licensee shall maintain all its displays in a neat, and attractive
condition at all times.
6.04 The Licensee shall be solely responsible for the control and management of
its operations, employment practices and labour relations concerning the
Licensee's employees and other persons rendering services to it. For greater
certainty, the Licensee shall have the sole and exclusive control over its
employees employee relations policies and policies relating to wages, hours of
work, working conditions, and conditions of its employees, and the sole and
exclusive right to hire, transfer, suspend, lay off, recall, promote, assign,
discipline, adjust grievances, and discharge said employees.
6.05 If the Licensor has any complaint concerning any employees of or persons
rendering services to the Licensee, the Licensor shall inform the Licensee of
said complaint. The Licensee shall forthwith thereafter take such actions as the
Licensee deems appropriate to rectify the subject matter of such complaint and
to prevent any similar recurrence in the future.
6.06 All Club member complaints involving the Licensee that are received by the
Licensor shall be referred to an employee of the Licensee who shall be
designated by the Licensee as its designated corporate representative. The
Licensee shall use its best efforts to respond to these complaints within a
reasonable period after receipt of same by the Licensee and the Licensee shall
make a diligent effort to promptly resolve complaints or otherwise satisfy Club
members' concerns and, if so requested by the Licensor, shall advise the
Licensor of the status of any complaint and the efforts made to resolve or
satisfy same. In the event the Licensor receives over five (5) Club member
service complaints in any form (i.e., telephone, written, oral, etc.) per
Licensee's Business during any year, the Licensee will reimburse the Licensor,
within fifteen (15) days of notice of complaint, the amount of fifty dollars
($50.00) per complaint for administrative services. Said charge is in addition
to and not in substitution for any other remedies available to the Licensor
under this Agreement, at law, or in equity.
6.07 The Licensee shall not, without the Licensor's prior written consent, which
may be withheld for any or no reason, keep anything within a Licensed Premise or
use a Licensed Premise for any activity which increases the insurance premium
cost or invalidates any insurance policy carried by any person with respect to
the Club or any part thereof. All property kept, stored or maintained within the
Licensed Premises by or on behalf of the Licensee shall be at the Licensee's
sole risk.
6.08 The Licensor shall maintain and repair the Clubs within which the Licensed
Premises are located to the standard that it deems acceptable, acting
reasonable, so as to permit the Licensee to operate its business therein.
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7.00 Kiosk Construction/Alterations
7.01 The area of each Licensed Premise shall be no greater than eighty (80)
square feet.
7.02 The Licensee shall not make any replacements, improvements, alterations or
renovations to any part of a Licensed Premise (save and except for the
installation and removal of non-affixed movable trade fixtures which may be
installed without drilling, cutting or other physical alteration of any part of
the building within which the Club is located (referred to in this Agreement as
"trade fixtures")) from that approved by the Licensor pursuant to this
Agreement, without the prior written consent of the Licensor, which may be
withheld for any or no reason.
7.03 All alterations, additions, improvements and fixtures (save and except for
trade fixtures, unattached readily movable furniture and office equipment) that
may be made or installed by the Licensee within a Licensed Premise shall remain
upon and be become the property of Licensor upon the termination of this
Agreement with respect to such Licensed Premise, unless the Licensor requests
their removal in which event the Licensee shall forthwith remove the same and
restore such Licensed Premise to its original condition at its sole cost and
expense.
7.04 All construction work done by the Licensee within a Licensed Premise shall
be performed in a good and workmanlike manner to a standard which is acceptable
to the Licensor, in its sole, absolute and unfettered discretion, in compliance
with all governmental requirements, and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Club.
7.05 The Licensee covenants and agrees not to permit any construction lien,
claim for lien, or other lien to arise and/or be registered against the title to
the property upon which a Club is located as a direct or indirect result of any
work undertaken by it or on its behalf in respect of a Licensed Premise. In the
event that any such lien shall arise, the Licensee covenants and agrees to,
forthwith following becoming aware of same, take all possible action, including
without limitation the payment of the monies claimed into court, in order to
have such lien removed from the title to the property upon which a Club is
located within five (5) Business Days thereafter. In the event that the Licensee
defaults in the aforesaid obligation, the Licensor shall be entitled, if it so
chooses, to undertake the Licensee's obligations on its behalf and to invoice
the Licensee for all costs, including without limitation legal fees in their
entirety, associated with same, which shall be payable by the Licensee to the
Licensor forthwith upon receipt by the Licensee of a written demand therefor
from the Licensor. The foregoing remedy of the Licensor is in addition to and
not substitution for any other remedies available to the Licensor under this
Agreement, at law, or in equity.
8.00 Insurance
8.01 The Licensee shall, at its sole cost and expense, take out and keep in full
force and effect at all times during the Term, with an insurer which is
acceptable to the Licensor, a comprehensive commercial general liability
insurance policy for bodily injury and property damage with limits in an amount
of not less than Two Million ($2,000,000.00) Dollars per occurrence. Such policy
of insurance shall include coverage for personal injury liability, bodily injury
liability, contractual liability, business interruption relating to the
Licensor's operations in any Club, liability for damage to or losses relating to
the Licensed Premises and any chattels, property, merchandise, trade fixtures,
or monies located therein from time to time, and "all-risk" liability insurance,
such coverage to include the business operations conducted by the Licensee on
the Licensed Premises. Such policy of insurance shall be endorsed with an
endorsement providing that no cancellation of such policy will be effective
unless the Licensor shall have received at least sixty (60) days prior written
notice of such cancellation. The Licensee shall cause such policy of insurance
to name the Licensor as an additional insured and be endorsed with a waiver of
subrogation provision in favour of the Licensor. The Licensee shall cause a
certificate of insurance executed by the insurer named in the applicable policy
or policies of insurance or an insurance broker duly authorized by such insurer
to execute such certificate with respect to such policy of insurance and
endorsements, to be delivered to the Licensor concurrently with the Licensee's
execution of this Agreement and/or from time to time following the receipt of a
written request therefor from the Licensor.
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8.02 The Licensee covenants and agrees to register itself and all persons
engaged for service in connection with the operation of the Licensee's
Businesses within the Licensed Premises under the workers compensation
legislation applicable to a Licensed Premise and to maintain such coverage(s) in
good standing throughout the Term.
Compliance with Laws
9.01 The Licensee shall, at its sole cost and expense, promptly comply with all
statutes, regulations, ordinances, rules, laws, and other legal stipulations of
any governmental authority having jurisdiction with respect to a Licensed
Premise, pertaining to the Licensee's occupancy of, work undertaken within,
and/or business operations(s) within a Licensed Premise. For greater certainty,
the parties acknowledge and agree that the Licensee shall be solely responsible
to procure and maintain at all times during the term of this Agreement or any
renewal thereof, any and all permits and/or approvals of any governmental
authority having jurisdiction with respect to the Licensed Premise required in
order to occupy, undertake improvements, and operate its business therein, and
the Licensor shall have no obligations in this regard whatsoever.
10.00 Confidentiality
10.01 The Licensee acknowledges and agrees that certain information made
available to it from time to time by the Licensor, including without limiting
the generality of the foregoing, information regarding the opening dates of any
Clubs to its members, as well as information disseminated at any management or
other meeting(s) held by the Licensor at the Clubs, is confidential in nature.
For the purposes of this Agreement, such confidential information (hereinafter
referred to as "Wal-Mart Confidential Information") shall be defined as
information received by the Licensee, its agent or employees which is not
generally known in the industry in which the Licensor is engaged, or which would
logically be considered confidential and/or proprietary, or which would do the
Licensor harm if divulged, or which is marked "Confidential" or "Proprietary" by
the Licensor. Wal-Mart Confidential Information shall not either directly or
indirectly be disclosed to others or used in any way by the Licensee or those
for whom it is responsible at law, without the prior written permission of the
Licensor, which may be withheld for any reason whatsoever. The provisions of
this section shall survive and remain in full force and effect following any
termination of this Agreement and/or the application of this Agreement to any of
the Licensee's Businesses. The Licensee shall not use any trade xxxx owned or
licensed by the Licensor, the name of the Licensor or otherwise refer to the
Licensor in any marketing or promotion undertaken by or on behalf of the
Licensee without the prior written permission of the Licensor, which may be
withheld for any or no reason whatsoever.
10.02 The Licensor covenants and agrees to maintain all financial information
provided to it by the Licensee under or as a result of this Agreement, including
without limitation the amount of the Gross Sales, in the strictest confidence
and shall not disclose same to any other person.
Parking
11.01 The Licensee shall comply with such rules and regulations as the Licensor
may stipulate from time to time with respect to the parking of motor vehicles in
the vicinity of any Club. In addition to the foregoing, the Licensee shall
provide the licence plate numbers of all automobiles of the Licensee, its
employees, agents, and workmen, which are to be parked in the vicinity of any
Club, and such persons shall only park in those areas designated by the Licensor
as employee parking from time to time.
Default
12.01 For the purposes of this Agreement, any one or more of the following
events shall constitute a material default ("Material Default") of this
Agreement:
(a) failure of the Licensee to pay the Monthly Licence Fee, Percentage
Licence Fee, and/or Taxes on the date that same is due in accordance
with the provisions of this Agreement;
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(b) any change of control (as defined by the Income Tax Act (Canada)) of
the Licensee with respect to which the prior written consent of the
Licensor has not been obtained, which consent may be withheld for
any or no reason whatsoever;
(c) failure of the Licensee to fully comply with its obligations under
Article 8 hereof;
(d) failure of Licensee to fully comply with any obligation under this
Agreement, the result of which, in Licensor's sole, absolute and
unfettered discretion, could have a material adverse effect on
Licensor's operations and/or reputation;
(e) the Licensee shall (i) generally not pay its debts as they fall due;
(ii) admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; (iii)
institute or have instituted against it any proceeding seeking (A)
to adjudicate it a bankrupt or insolvent, (B) any liquidation,
winding-up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or re-organization or relief of debtors or
otherwise, or (C) the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it
or any substantial part of its assets, and in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of
thirty (30) days, or any of the actions sought in such proceeding
(including the entry of an order for relief against it or the
appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its assets) shall
occur; or (iv) take any corporate action to authorize any of the
foregoing actions; and/or
(f) failure of the Licensee to fully comply with its obligations under
section 4.08 and/or section 7.05.
12.02 In the event that a Material Default shall occur, the Licensor shall be
entitled at any time thereafter to terminate this Agreement or the license
created pursuant to this Agreement in respect of the applicable Licensee's
Business(es) and the application of this Agreement to such Licensee's
Business(es) (as the case may be) by the delivery of written notice to that
effect to the Licensee, and upon the delivery of such written notice to the
Licensee this Agreement or such license(s) and the application of this Agreement
to such Licensee's Business(es) (as the case may be) shall, subject to any other
provision contained herein which is expressed to survive such termination of
this Agreement, be at an end. The parties acknowledge and agree that the
occurrence of a Material Default shall be incapable of rectification by the
Licensee, save and except for a Material Default under section l2.01(a) which
can be remedied by making payment in full together with all interest applicable
thereto under this Agreement, within ten (10) days following the date upon which
same was originally due, failing which such Material Default shall thereafter be
incapable of rectification by the Licensee.
12.03 In the event that the Licensee shall at any time fail to fully perform
and/or comply with any provision contained in this Agreement, other than one
giving rise to a Material Default, and the Licensor shall have delivered written
notice to the Licensee requiring the rectification of same, in the event that
such rectification shall not have been made by the date which is thirty (30)
days following the date of delivery of the aforesaid notice to the Licensee to
the satisfaction of the Licensor in its sole, absolute, and unfettered
discretion, the Licensor shall be entitled at any time thereafter and prior to
the rectification by the Licensee of any such default, to terminate this
Agreement or the license created pursuant to this Agreement in respect of the
applicable Licensee's Business(es) and the application of this Agreement to such
Licensee's Business(es). Such termination shall be effected by the delivery of
written notice of termination to the Licensee, and upon the delivery of such
written notice to the Licensee such license(s) and the application of this
Agreement to such Licensee's Business(es) shall, subject to any other provision
contained herein which is expressed to survive such termination of this
Agreement, be at an end.
12.04 The Licensee acknowledges and agrees that the Licensor may be a tenant of
a Club. In the event that: (i) the Licensor's right to occupancy of a Club is
terminated for any reason whatsoever, (ii) damage is caused to the Club which
necessitates repairs taking in excess of sixty (60) days within which to restore
the Club to a condition capable of operation as a retail establishment, and/or
(iii) the Licensor elects to cease operation of a membership warehouse within
the Club, this Agreement shall in turn automatically be terminated and of no
further force or effect with respect to such Club and the applicable Licensee's
Business, subject to the Licensee paying to the Licensor the Licence Fee and
Taxes and other monies that are owed to the Licensor hereunder in respect of
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such Licensee's Business to such date of termination, and notwithstanding any
other provision of this Agreement, the Licensor shall bear no responsibility or
liability to the Licensee with respect to any damage or loss which the Licensee
may occasion by virtue of such termination of this Agreement with respect to
such Club and Licensee's Business.
12.05 Notwithstanding anything herein to the contrary, it is specifically agreed
between the parties that if at any time the Licensee's quality of merchandise or
services, method of operation, merchandise variety, variety of services, and/or
financial stability or solvency is not acceptable to the Licensor with respect
to any of the Licensee's Businesses, acting reasonably, then the Licensor may
give the Licensee written notice to that effect, which notice shall describe the
nature of such deficiencies. The Licensee shall have seven (7) days following
the receipt by it of such notice within which to correct such deficiencies. If
such deficiencies are not satisfactorily corrected within such seven (7) day
period in the sole absolute and unfettered discretion of the Licensor, the
Licensor shall be entitled, at any time thereafter and prior to the
rectification by the Licensee of any such deficiency, to terminate this
Agreement or the license created pursuant to this Agreement in respect of the
applicable Licensee's Business(es) and the application of this Agreement to such
Licensee's Business(es). Such termination shall be effected by the delivery of
written notice of termination to the Licensee, and upon the delivery of such
written notice to the Licensee such license(s) and the application of this
Agreement to such Licensee's Business(es) shall, subject to any other provision
contained herein which is expressed to survive such termination of this
Agreement, be at an end.
12.06 Upon any termination of this Agreement in its entirety or with respect to
one of the Licensee's Businesses, the Licensee shall, at its sole cost and
expense, forthwith following the date that such termination shall be effective:
(a) immediately return all club badges and security identification which
may be in the possession of the Licensee;
(b) immediately discontinue its use of the applicable Licensed Premise
and remove any and all of its merchandise, chattels, trade fixtures,
and other property, from such Licensed Premise;
(c) remove any and all Signs in or about the applicable Licensed
Premise; and
(d) repair any and all damage or alterations caused to the physical
installations in the Club in a workmanlike manner so that the
Licensed Premise is left in a neat tidy and orderly condition.
The Licensor retains the right to perform any work necessary to remove the
merchandise, chattels, trade fixtures, and/or any other property of the Licensee
within the Licensed Premise, and xxxx the Licensee for any and all expenses the
Licensor may incur in such process and the Licensee shall forthwith pay same.
Notwithstanding anything herein contained, in the event that the Licensee fails
to comply with section 12.06(b) within twenty-one (21) days following the date
of the termination of this Agreement in its entirety or with respect to a
Licensee's Business (as the case may be), the Licensor shall be entitled to
retain for its own use, sell, or otherwise deal with such merchandise, chattels,
trade fixtures, and/or any other property of the Licensee located therein,
without notice and without any liability with respect thereto to the Licensee or
any other person. The Licensor shall be entitled to set off any monies owing to
it pursuant to this provision which are not paid in accordance with this
provision against any monies it may then or in the future owe to the Licensee.
The provisions of this section 12.06 shall survive the termination of this
Agreement.
12.07 For greater certainty, the parties acknowledge and agree that the rights
and remedies available to Licensor under this Article 12 are cumulative and are
in addition to and not in substitution for any other rights or remedies
available under this Agreement, at law or in equity.
3.00 Indemnity
13.01 The Licensee hereby agrees to indemnify and save the Licensor, its
directors, officers, employees, and agents, harmless from and against any and
all claims, damages, losses, liabilities, demands, suits, judgements, causes of
action, legal proceedings, penalties or other sanctions and any and all costs
and expenses arising in connection therewith including legal fees and
disbursements on a solicitor and his own client basis (including, without
limitation, all such legal fees and disbursements in connection with any and all
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appeals) which may, either directly or indirectly, in any way result from or
arise out of or be in relation to the Licensee's use and/or occupation of the
Licensed Premises, the Licensee's business operations, and/or this Agreement
(save and except as a result of the negligence and/or recklessness of Licensor
and/or its employees), including, without limiting the generality of the
foregoing, arising by reason of or in connection with:
(a) any breach, violation, non-observance or non-performance by the
Licensee or by any of its servants, employees, agents, invitees or
any other persons for whom it is responsible, of any of the terms or
conditions contained in this Agreement;
(b) any damage to property whether or not owned by the Licensor
howsoever occasioned;
(c) any damage, theft, or other loss in any way related to or in respect
of any property, chattels, fixtures, merchandise and/or monies of
the Licensee located from time to time in or about a Licensed
Premise;
(d) any illness, disease or injury to any person or persons caused
either directly or indirectly by the carrying on of the Licensee's
Business(es), including death resulting at any time therefrom;
(e) any negligent act(s) or omission(s) of the Licensee, or anyone for
whose acts it may be responsible at law and/or in equity;
(f) any claims pertaining to the employment of any of the Licensee's
employees, including without limiting the generality of the
foregoing, salaries and other compensation, statutory withholdings,
and workers compensation;
(g) the occurrence of any Material Default;
(h) the occurrence of any interruption of the business operations of the
Licensor in any Club; and/or
(i) any legal expenses incurred by the Licensor with respect to the
exercise of any of its rights under this Agreement with respect to
or following a default hereunder by the Licensee, on a solicitor and
client basis.
The provisions of this section shall survive and remain in full force and effect
following any termination of this Agreement and/or the application of this
Agreement to any Licensee's Business.
14.00 Taxes
14.01 Save and except as herein provided, the Licensee shall be solely
responsible for bearing the cost of and paying any and all licence fees and
taxes, whether presently existing or created during the Term, including without
in any way limiting the generality of the foregoing, realty, sales, goods and
services, value added, business and corporate taxes, applicable to the
Licensee's Businesses and/or the Licensed Premises. Notwithstanding the
foregoing, with respect to realty taxes, the parties acknowledge and agree that
the Licensor shall bear the cost of and pay same with respect to the Licensed
Premises, but only to the amounts applicable to each Licensed Premise as at
their respective Commencement Dates. If anything pertaining to this Agreement
and/or the use of a Licensed Premise by the Licensee causes the assessed value
and/or realty taxes or other taxes payable, whether directly or indirectly, by
the Licensor to increase, the Licensee shall forthwith reimburse the full amount
of any increase in such realty or other taxes to the Licensor following receipt
by the Licensee of a written demand therefor from the Licensor. The Licensor
shall be entitled to set off any monies owing to it pursuant to this provision
which are not paid in accordance with this provision against any monies it may
then or in the future owe to the Licensee. In the event that any such taxes are
billed to the Licensor, then the Licensee covenants and agrees to pay the same
to the Licensor forthwith following receipt of a written demand therefor from
the Licensor.
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15.00 Utilities
15.01 The Licensor shall provide lighting, electrical, heating and
air-conditioning (collectively the "Utilities"), as is necessary to operate the
Licensee's Businesses, however Licensee shall be responsible for constructing
and arranging for any telephone/data line(s) required on the Licensed Premises
and shall be solely responsible for all costs related thereto. Any such
construction must be completed outside of store hours and at times to be
approved by Licensor. Further, any cabling in connection therewith shall (i) be
white or grey; (ii) follow 90 degree angles; (iii) be in a conduit or panduit
coming from the ceiling space to the top of the kiosk on the Licensed Premises;
and (iv) be detailed to corporate standards. The Licensee covenants and agrees
to reimburse the Licensor for the cost of any physical construction,
installations, and/or alterations to a Club and/or its service systems made by
the Licensor in order to make the Utilities and rough-ins available at each
Licensed Premise. Notwithstanding the foregoing, the Licensor shall not be
responsible for any temporary interruption in such services or for any damage to
the Licensee's property caused by any temporary interruption in any of such
services, power surge, electrical failure, or other mechanical problem.
16.00 Maintenance
16.01 During such times as the Licensee carries on a Licensee's Business, it
shall keep, operate and maintain the applicable Licensed Premise in a clean and
sanitary condition and shall leave same in a reasonably neat and tidy condition
after using same, including without limitation, following the termination of any
licence with respect to such Licensee's Business.
Signs and Advertising
17.01 The Licensee shall not paint, display, install, erect or affix any sign,
fixture, advertisement, notice, lettering or decoration (a "Sign") within the
Licensed Premises without the prior written consent of the Licensor which may be
withheld for any or no reason whatsoever. In addition to the foregoing and
without in any way limiting same, any Sign displayed, installed, erected or
affixed by the Licensee within or about a Licensed Premise shall be
professionally prepared, type set and manufactured, and shall not include any
hand written text, script, logos, and/or designs. Any Sign displayed, installed,
erected or affixed by the Licensee in contravention of this provision may be
removed by the Licensor at any time at the sole cost and expense of the
Licensee, and the Licensee shall forthwith reimburse the Licensor for the cost
of same following receipt of a written demand therefor from the Licensor.
17.02 The Licensee shall, subject to the Licensor's approval as required by
section 17.01, at its sole cost and expense provide and install such reasonable
number of signs as the Licensor shall determine, acting reasonably, in each
Licensed Premise in a conspicuous location in full view of all members at all
times the Club is open for business identifying the nature of the Licensee's
Business. Letters and numbers are to be a minimum of four inches (4") in scale
with a background color which highlights the color of the characters. Such
signage is to be located in the Licensed Premises and to compliment the
surrounding decor. No Signs in respect of the Licensee's Business shall refer to
the Licensee, either directly or indirectly.
17.03 The Licensee shall not release or publish in any way any advertising or
written material relating to the Licensee's Businesses, without the prior
written approval of the Licensor, which may be withheld for any or no reason.
All dealings by the Licensee with its creditors, suppliers, workmen,
contractors, agents, employees, and other similar persons in connection with the
Licensee's Businesses shall be conducted exclusively in the Licensee's name, and
the Licensee shall not in any manner obligate the Licensor on account thereof,
and/or suggest to such persons that the Licensor bears any obligation with
respect to same.
Notices
18.01 Any notice or other communication required or permitted to be given by
this Agreement shall be in writing and shall be effectively given if:
(a) delivered personally
(b) sent by prepaid courier service;
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(c) sent by registered mail; or
(d) sent by prepaid telecopier, telex or other similar means of
electronic communication and confirmed by mailing the original
document so sent by prepaid mail on the same or following day,
in the case of notice to:
(a) in the case of notice to the Licensor at:
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Director of Licensee Operations and Xxxxxx Xxxxx
Telecopier No. (000) 000-0000
with a copy to:
Attention: Xxxx Xxxxxx
Telecopier No. (000) 000-0000
(b) in case of notice to the Licensee at:
3577996 Canada Inc
000 Xx. Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Marius Silvasan, President
Telecopier No. (000) 000-0000
or at such other address as the party to whom such notice or other communication
is to be given shall have advised the party giving same in the manner provided
in this section. Any notice or other communication delivered personally or by
prepaid courier service shall be deemed to have been given and received on the
day it is so delivered at such address, provided that if such day is not a
Business Day such notice or other communication shall be deemed to have been
given and received on the next following Business Day. Any notice or other
communication sent by registered mail shall be deemed to have been given and
received on the third Business Day following the date of mailing. Any notice or
other communication transmitted by telecopier, telex or other similar form of
electronic communication shall be deemed given and received on the day of its
transmission provided that such day is a Business Day and such transmission is
completed before 5:00 p.m. on such day, failing which such notice or other
communication shall be deemed given and received on the first Business Day after
its transmission. Regardless of the foregoing, if there is a mail stoppage or
labour dispute or threatened labour dispute which has affected or could affect
normal mail delivery by the applicable postal service, then no notice or other
communication may be delivered by registered mail. If there has been a mail
stoppage and if a party sends a notice or other communication by telecopier,
telex or other similar means of electronic communication, such party shall be
relieved from the obligation to mail the original document in accordance with
this section.
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No Liability
19.01 The Licensor shall not be liable or responsible in any way for any death
or injury arising from or out of any occurrence in, upon, at, or relating to the
Licensee's Businesses and/or the Licensed Premises, or for any loss of or damage
or injury to any property, including without limitation the merchandise,
chattels, trade fixtures, and/or any other property located therein from time to
time, belonging to the Licensee or its employees or to any other person while
such property is in the Licensed Premises, whether or not such property has been
entrusted to employees of the Licensor, or for any consequential or economic
damages, loss or injury or for damages for personal discomfort or inconvenience
however caused (including, without limitation, by negligence, fundamental breach
of contract or the breach of a fundamental term of any contract), save and
except if any of same are the result of the negligence and/or recklessness of
the Licensor or any of its employees. All merchandise, chattels, trade fixtures,
and/or any other property of the Licensee kept or stored on or in the Licensed
Premises shall be so kept or stored at the risk of the Licensee only and the
Licensee shall hold the Licensor harmless from and against any claims arising
out of damage to same, including, but not limited to, any subrogation claims by
the Licensee's insurers.
No Waiver
20.01 No condoning or waiver by the Licensor of any default or breach by the
Licensee at any time or times in respect of any of the obligations, terms,
covenants and conditions contained in this Agreement to be performed or observed
by the Licensee shall be deemed or construed to operate as a waiver of the
Licensor's rights under this Agreement in respect of any continuing or
subsequent default or breach nor so as to defeat or affect in any way the rights
and remedies of the Licensor under this Agreement in respect of any such
continuing or subsequent default or breach. Unless expressly waived in writing,
the failure of the Licensor to insist in anyone or more cases upon the strict
performance of any of the obligations, terms, covenants and conditions contained
in this Agreement to be performed or observed by the Licensee shall not be
deemed or construed to operate as a waiver for the future strict performance or
observance of such agreements, terms, covenants and conditions.
21.00 Relationship and Assignment
21.01 The rights granted to the Licensee hereby are personal only and create no
interest or right in the Club and/or the leasehold interest of the Licensor in
the Club. This Agreement shall not create or confer upon the parties hereto, in
any way or for any purpose, any relationship except that of contracting parties,
and in particular does not create a partnership, a joint venture or a landlord
and tenant relationship between the Licensor and the Licensee or an
employer-employee relationship between the Licensor and the employees of and
other persons rendering services to the Licensee.
21.02 The Licensee shall not assign, transfer or set over this Agreement or any
part thereof, any rights therein or thereto, and/or in any way permit anyone
other than itself to carry on the Licensee's Business within a Licensed Premise,
without having obtained the prior written consent of the Licensor, which consent
may be withheld for any reason whatsoever. The Licensor shall be entitled to
assign this Agreement in whole or in part to any successor in occupancy of any
of the Clubs at any time without the consent of the Licensee, and the Licensee
covenants and agrees to execute any documentation which the Licensor shall deem
necessary, acting reasonably to evidence that the Licensee thereafter forever
releases and discharges the Licensor from its obligations hereunder and
covenants and agrees to be bound by the provisions of this Agreement to any such
assignee of the Licensor as if such assignee had originally executed this
Agreement.
Entire Agreement
22.01 This Agreement constitutes the entire agreement between the parties
regarding the Licensee's use of the Licensed Premises. It is understood and
agreed that there are no agreements, conditions, warranties, terms,
representations or arrangements, oral or written, statutory or otherwise, other
than those contained herein, and that all prior conversations, understandings,
arrangements, statements, communications or agreements, oral or written, with
respect to this Agreement are hereby superseded.
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Governing Law
23.01 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein. The
parties hereby irrevocably attorn to the jurisdiction of the courts of the
Province of Ontario.
Time of the Essence
Time is of the essence of this Agreement and every part hereof.
Interpretation
25.01 This Agreement shall be read with all changes in gender and number
required by the context. The headings contained in this Agreement are for
convenience of reference only, and shall not affect the interpretation of this
Agreement.
Payments in Canadian Currency
26.01 All references herein to currency are to Canadian currency and all
payments shall be made in Canadian currency
Severability
27.01 If for any reason whatsoever any term, covenant or condition of this
Agreement, or the application thereof to any person, firm or corporation or
circumstance, is to any extent held or rendered invalid, unenforceable or
illegal, then such term, covenant or condition:
(a) shall be deemed to be independent of the remainder of this Agreement
and to be severable and divisible therefrom, and its invalidity,
unenforceability or illegality shall not affect, impair or
invalidate the remainder of this Agreement or any part thereof; and
(b) continues to be applicable to and enforceable to the fullest extent
permitted by law against any person and circumstance other than
those as to which it has been held or rendered invalid,
unenforceable or illegal.
28.00 Force Majeure
28.01 Notwithstanding any other provisions of this Agreement, whenever and to
the extent that either party is unable to fulfill or is delayed or restricted in
the fulfillment of any of its obligations under this Agreement by reason of any
of the following impediments:
strike;
lockout;
war or acts of military authority;
rebellion or civil commotion;
material or labour shortage not within the control of such Owners;
fire, explosion;
flood, wind, water, earthquake or other casualty;
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8. any applicable lawful statute, by-law, ordinance, regulation or
order;
9. acts of God, or
10. any act of the landlord of the club to terminate or deny possession
of the Club to the Licensor, whether temporary or not,
not caused by the default, act, or omission of such party and not avoidable or
surmountable by the exercise of reasonable effort or foresight by it (save and
except with reference to item 10 above for which the Licensor shall have no such
obligations whatsoever), then so long as any such impediment exists, such party
shall be temporarily relieved from the fulfillment of such obligation and the
other party shall not be entitled to compensation for any damage, inconvenience,
nuisance or discomfort thereby occasioned and, to the extent necessitated
thereby, there shall be a postponement of any deadline, compliance with which
would be otherwise adversely affected by such impediment, provided that at the
expiration of such temporary relief, such party shall forthwith proceed with
fulfillment of such obligation.
Encumbrance
29.01 The Licensee shall not charge, mortgage, hypothecate, pledge, give a
security interest in, or otherwise encumber this Agreement or the fixtures of
the Licensee located from time to time within the Licensed Premises without the
prior written consent of the Licensor, which consent may be withheld for any or
no reason whatsoever.
Schedules
30.01 The following Schedules whether attached hereto or acknowledged as a
separate document shall form a part of this Agreement:
Schedules "A-1" to "A-4" - Licence Schedules;
Schedule "B" - New Club Licence Schedule;
Schedules "C" - Form of Sales Report.
Successors and Assigns
31.01 Subject to any restrictions herein contained, this Agreement shall enure
to the benefit of and be binding upon the parties and their respective
successors and permitted assigns.
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32.00 Language
32.01 The parties acknowledge and agree that they have required that this
Agreement be prepared in the English language. Les parties reconnaissent avoir
exige que les presentes soient redigees en langue anglaise.
IN WITNESS WHEREOF the parties have executed this Agreement this 28th day
of October, 2003, with effect as of the date hereinabove set forth.
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
Per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------------------
Name: Xxxxx Xxxxxxx
/s/ [ILLEGIBLE] Title: Senior Vice-President
3577996 CANADA INC.
Per: /s/ Marius Silvasan c/s
-----------------------------------------
Name: Marius Silvasan
Title:
I have the authority to bind the Corporation.
SCHEDULE "A-1"
LICENCE SCHEDULE
The Licensor does hereby grant a non-exclusive licence to the Licensee and the
Licensee does hereby accept such licence in accordance with the Licence
Agreement between the parties made the 28th day of October, 2003 to carry on a
Licensee's Business in or about SAM'S CLUB Warehouse #4837 located at 0000 Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0 (the "Club"). For greater certainty, the
Licensor shall not have the right to permit the operation by a third party of a
cellular telephone service sale kiosk within the Club.
The Commencement Date in respect of the Licensee's Business located in or about
this Club shall be the date that the Licensor advises Licensee that the Club
will open to its members, which notice shall be given no less than five (5)
Business Days in advance. As at the date of execution of this Licence Schedule
the Commencement Date in respect of the Licensee's Business located in or about
this Club is expected to be October 30, 2003 (the "Currently Expected
Commencement Date"). In the event that the aforesaid notice is not delivered to
the Licensee by the Licensor, the Commencement Date in respect of the Licensee's
Business located in or about this Club shall be the Currently Expected
Commencement Date.
The licence created pursuant to this Licence Schedule shall commence on the
Commencement Date and, subject to earlier termination as provided for in the
Agreement, continue in effect for a term ending at 12:00 midnight on the 29th
day of October, 2005 (the "Term").
IN WITNESS WHEREOF the parties have executed this Licence Schedule this
28th day of October, 2003
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
Per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------------------
Name: Xxxxx Xxxxxxx
/s/ [ILLEGIBLE] Title: Senior Vice-President
3577996 CANADA INC.
Per: /s/ Marius Silvasan c/s
-----------------------------------------
Name: Marius Silvasan
Title:
I have the authority to bind the Corporation.
SCHEDULE" A-2"
LICENCE SCHEDULE
The Licensor does hereby grant a non-exclusive licence to the Licensee and the
Licensee does hereby accept such licence in accordance with the Licence
Agreement between the parties made the 28th day of October, 2003 to carry on a
Licensee's Business in or about SAM'S CLUB Warehouse #4844 located at 000
Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0 (the "Club"). For greater certainty,
the Licensor shall not have the right to permit the operation by a third party
of a cellular telephone service sale kiosk within the Club.
The Commencement Date in respect of the Licensee's Business located in or about
this Club shall be the date that the Licensor advises Licensee that the Club
will open to its members, which notice shall be given no less than five (5)
Business Days in advance. As at the date of execution of this Licence Schedule
the Commencement Date in respect of the Licensee's Business located in or about
this Club is expected to be October 30, 2003 (the "Currently Expected
Commencement Date"). In the event that the aforesaid notice is not delivered to
the Licensee by the Licensor, the Commencement Date in respect of the Licensee's
Business located in or about this Club shall be the Currently Expected
Commencement Date.
The licence created pursuant to this Licence Schedule shall commence on the
Commencement Date and, subject to earlier termination as provided for in the
Agreement, continue in effect for a term ending at 12:00 midnight on the 29th
day of October, 2005 (the "Term").
IN WITNESS WHEREOF the parties have executed this Licence Schedule this
28th day of October, 2003.
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
Per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------------------
Name: Xxxxx Xxxxxxx
/s/ [ILLEGIBLE] Title: Senior Vice-President
3577996 CANADA INC.
Per: /s/ Marius Silvasan c/s
-----------------------------------------
Name: Marius Silvasan
Title:
I have the authority to bind the Corporation.
SCHEDULE" A-3"
LICENCE SCHEDULE
The Licensor does hereby grant a non-exclusive licence to the Licensee and the
Licensee does hereby accept such licence in accordance with the Licence
Agreement between the parties made the 28th day of October, 2003 to carry on a
Licensee's Business in or about SAM'S CLUB Warehouse #4848 located at 000 Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxx, X0X 0X0 (the "Club"). For greater
certainty, the Licensor shall not have the right to permit the operation by a
third party of a cellular telephone service sale kiosk within the Club.
The Commencement Date in respect of the Licensee's Business located in or about
this Club shall be the date that the Licensor advises Licensee that the Club
will open to its members, which notice shall be given no less than five (5)
Business Days in advance. As at the date of execution of this Licence Schedule
the Commencement Date in respect of the Licensee's Business located in or about
this Club is expected to be October 30, 2003 (the "Currently Expected
Commencement Date"). In the event that the aforesaid notice is not delivered to
the Licensee by the Licensor, the Commencement Date in respect of the Licensee's
Business located in or about this Club shall be the Currently Expected
Commencement Date.
The licence created pursuant to this Licence Schedule shall commence on the
Commencement Date and, subject to earlier tennination as provided for in the
Agreement, continue in effect for a term ending at 12:00 midnight on the 29th
day of October, 2005 (the "Term").
IN WITNESS WHEREOF the parties have executed this Licence Schedule this
28th day of October, 2003.
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
Per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------------------
Name: Xxxxx Xxxxxxx
/s/ [ILLEGIBLE] Title: Senior Vice-President
3577996 CANADA INC.
Per: /s/ Marius Silvasan c/s
-----------------------------------------
Name: Marius Silvasan
Title:
I have the authority to bind the Corporation.
SCHEDULE "A-4"
LICENCE SCHEDULE
The Licensor does hereby grant a non-exclusive licence to the Licensee and the
Licensee does hereby accept such licence in accordance with the Licence
Agreement between the parties made the 28th day of October, 2003 to carry on a
Licensee's Business in or about SAM'S CLUB Warehouse #4849 located at 0000 Xxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0 (the "Club"). For greater certainty, the
Licensor shall not have the right to permit the operation by a third party of a
cellular telephone service sale kiosk within the Club.
The Commencement Date in respect of the Licensee's Business located in or about
this Club shall be the date that the Licensor advises Licensee that the Club
will open to its members, which notice shall be given no less than five (5)
Business Days in advance. As at the date of execution of this Licence Schedule
the Commencement Date in respect of the Licensee's Business located in or about
this Club is expected to be October 30, 2003 (the "Currently Expected
Commencement Date"). In the event that the aforesaid notice is not delivered to
the Licensee by the Licensor, the Commencement Date in respect of the Licensee's
Business located in or about this Club shall be the Currently Expected
Commencement Date.
The licence created pursuant to this Licence Schedule shall commence on the
Commencement Date and, subject to earlier termination as provided for in the
Agreement, continue in effect for a term ending at 12:00 midnight on the 29th
day of October, 2005 (the "Term").
IN WITNESS WHEREOF the parties have executed this Licence Schedule this
28th day of October, 2003.
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
Per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------------------
Name: Xxxxx Xxxxxxx
/s/ [ILLEGIBLE] Title: Senior Vice-President
3577996 CANADA INC.
Per: /s/ Marius Silvasan c/s
-----------------------------------------
Name: Marius Silvasan
Title:
I have the authority to bind the Corporation.
SCHEDULE "B"
NEW CLUB LICENCE SCHEDULE
WHEREAS Wal-Mart Canada Corp. carrying on business as "SAM'S CLUB" (the
"Licensor") and 3577996 Canada Inc. (the "Licensee") entered into a Licence
Agreement dated the 28th day of October, 2003 (the "Licence Agreement");
AND WHEREAS the Licensor and the Licensee desire that a further membership club
warehouse of the Licensor be made subject to the Licence Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants, conditions and agreements herein contained, other good and valuable
consideration and the sum of Five Dollars ($5.00) paid by each party to the
other (the receipt and sufficiency of which are hereby acknowledged), the
parties hereto do hereby covenant and agree, each with the other, as follows:
All of the capitalized terms used in this New Club Licence Schedule shall have
the meanings ascribed to them in the Licence Agreement unless otherwise defined.
The Licensor does hereby grant a non-exclusive licence to the Licensee and the
Licensee does hereby accept such licence in accordance with the Licence
Agreement between the parties made the * day of *, 200* to carry on a Licensee's
Business in or about SAM'S CLUB Warehouse # * located at * (the "Club"). For
greater certainty, the Licensor shall not have the right to permit the operation
by a third party of a cellular telephone service sale kiosk within the Club.
The Commencement Date in respect of the Licensee's Business located in or about
this Club shall be the date that the Licensor advises Licensee that the Club
will open to its members, which notice shall be given no less than five (5)
Business Days in advance. As at the date of execution of this Licence Schedule
the Commencement Date in respect of the Licensee's Business located in or about
this Club is expected to be *, 200* (the "Currently Expected Commencement
Date"). In the event that the aforesaid notice is not delivered to the Licensee
by the Licensor, the Commencement Date in respect of the Licensee's Business
located in or about this Club shall be the Currently Expected Commencement Date.
The licence created pursuant to this New Club Licence Schedule shall commence on
the Commencement Date and, subject to earlier termination as provided for in the
Licence Agreement, continue in effect for a term ending at 12:00 midnight on the
* day of *, 200* (the "Term").
Upon the execution of this New Club Licence Schedule, the Licensee's Business
located in or about this Club shall become subject to the terms of the Licence
Agreement.
IN WITNESS WHEREOF the parties have executed this Licence Schedule this *
day of *, 200*.
WAL-MART CANADA CORP., carrying on business as
"SAM'S CLUB"
Per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice-President
3577996 CANADA INC.
Per: /s/ Marius Silvasan c/s
-----------------------------------------
Name: Marius Silvasan
Title:
I have the authority to bind the Corporation.
SCHEDULE "C"
FORM OF SALES REPORT
Club Warhouse #: o (all carriers) Club Warehouse #: o (applicable carrier: )
--------------------------------- ---------------------------------
Gross Sales in Gross Sales in
respect of respect of
[Month/Year] [Month/Year]
--------------------------------- ---------------------------------
Services Services
--------------------------------- ---------------------------------
Approved Approved
Merchandise Merchandise
--------------------------------- ---------------------------------
Club Warhouse #: o (all carriers) Club Warehouse #: o (applicable carrier: )
--------------------------------- ---------------------------------
Gross Sales in Gross Sales in
respect of respect of
[Month/Year] [Month/Year]
--------------------------------- ---------------------------------
Services Services
--------------------------------- ---------------------------------
Approved Approved
Merchandise Merchandise
--------------------------------- ---------------------------------
Club Warhouse #: o (all carriers) Club Warehouse #: o (applicable carrier: )
--------------------------------- ---------------------------------
Gross Sales in Gross Sales in
respect of respect of
[Month/Year] [Month/Year]
--------------------------------- ---------------------------------
Services Services
--------------------------------- ---------------------------------
Approved Approved
Merchandise Merchandise
--------------------------------- ---------------------------------
Club Warhouse #: o (all carriers) Club Warehouse #: o (applicable carrier: )
--------------------------------- ---------------------------------
Gross Sales in Gross Sales in
respect of respect of
[Month/Year] [Month/Year]
--------------------------------- ---------------------------------
Services Services
--------------------------------- ---------------------------------
Approved Approved
Merchandise Merchandise
--------------------------------- ---------------------------------
All Licensee's Business
---------------------------------
Gross Sales in
respect of
[Month/Year]
---------------------------------
Services
---------------------------------
Approved
Merchandise
---------------------------------
