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EXHIBIT 6.3
THIS LEASE MADE THIS 25TH DAY OF OCTOBER, 1999.
BETWEEN:
CERTUS DEVELOPMENTS, INC., a body corporate having an office in the City of
Calgary in the Province of Alberta (hereinafter referred to as the
"Lessor")
OF THE FIRST PART
-and-
XXXXXXXXXXXX.XXX, INC., a body corporate having an office in the City of
Calgary, in the Province of Alberta (hereinafter referred to as the
"Lessee")
OF THE SECOND PART
WHEREAS the Lessor is the registered owner of the certain lands the "Lands"
legally described as Lots 12 and 13 and the East Half of Xxx 00, Xxxxx 0, Xxxx
Xxxxxxx 0000X (hereinafter referred to as "the said lands"). Upon the Lessor
Lands is a two-story office and retail building, hereinafter described as the
"Building". The municipal address for the second floor office premises located
within the Building is 0000 - 0xx Xxxxxx XX Xxxxxxx, Xxxxxxx, X0X 0X0.
1. DEMISED PREMISES
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the
rents, covenants and agreements hereinafter reserved and contained on the part
of the Lessee to be paid, observed and performed, the Lessor does demise and
lease unto the Lessee the second floor office premises located at the address
set out above and hereinafter referred to as the "Premises" together with all
rights and appurtenances whatsoever to the said Premises belonging or
appertaining thereto. The Premises shall include all of the second floor and its
contiguous main floor entry hallway, stairwells, and storage area. A plan of the
second floor office area is attached hereto as Schedule "A", (hereinafter called
"the Demised Premises").
The gross leasable area of the Premises is four thousand two hundred and
forty (4,240) square.
2. TERM AND RENT
The Term of this Lease shall be for Five (5) Years, commencing on the 1st
day of January, 2000 (the "Commencement Date") and to end and to be fully
completed on the 31st day of December, 2004 the "Expiration Date". Rent in
respect of the Premises shall be a gross annual rent payable in equal
consecutive monthly installments together with GST on the first day of the month
in the amount of Eighty-Five Thousand ($85,000.00) Dollars per annum, plus
G.S.T., divided into monthly installments of Seven Thousand Eighty-three Dollars
and Thirty-three ($7,083.33), plus G.S.T. The Lessor acknowledges receiving the
sum of $30,316.65 representing payment of the last four (4) months rent plus GST
payable in the Term of this Lease.
For further clarification all rental payments shall be made in lawful money of
Canada and shall be paid by the Lessee to the Lessor at such place as the Lessor
may from time to time designate.
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The Operating Costs, Realty Taxes, and Management fees for the Building,
as defined in Schedule "B" hereto are included in the Gross Rent. Any increase,
adjustment, or changes in the Operating Costs and Taxes will have no effect on
the Gross Rent payable during the Term by the Lessee to the Lessor.
Notwithstanding which the Lessee shall be responsible for its business taxes,
telephone, satellite, cable or internet costs and the costs of all separately
metered utilities serving the Premises.
THE LESSEE COVENANTS AND AGREES WITH THE LESSOR AS FOLLOWS:
3. PAYMENT OF RENT
The Lessee will during the Term promptly pay or cause to be paid to the
Lessor the rents reserved at the time and in the manner hereinbefore mentioned
without any deductions whatsoever, and shall observe and perform and permit no
violation of each and every of the terms, conditions, covenants, agreements and
provisos herein contained on the part or on behalf of the Lessee to be observed
and performed.
4. USE OF PREMISES
The Premises shall be used and occupied by the Lessee solely for the
purposes of general offices and for no other purpose. Nothing contained herein
to the contrary shall allow the Lessee, or any assignee, or sub-lessee to use
the Premises for the purposes of retailing espresso based coffee beverages for
on or off premises consumption, or the providing of financial services typically
offered by a chartered bank in Canada. Lessor acknowledges that it has a
complete understanding of Lessee's existing and contemplated business at the
time of the execution of this Lease and further acknowledges Lessee's
compliance with this paragraph.
5. NUISANCE OR ANNOYANCE
The Lessee will not carry on any business or occupation or do anything or
permit anything to be done in or about the Premises that shall be deemed a
nuisance or which shall be in contravention of any law or which shall cause
annoyance to the Lessor or to any other occupants of the Building, nor suffer
nor permit the Premises to be used for any purpose other than the use
hereinbefore specifically mentioned.
6. PROTECTION OF PREMISES
a) The Lessee will not keep or store or suffer or permit to be kept,
stored or used in or upon the Premises any inflammable oils,
substances or materials unless such inflammable oils, substances or
materials are kept in proper storage facilities within the Premises as
required by the City By-laws, the City Fire Regulations and approved
by the fire and liability insurance company who have or may at any
time hereafter place fire and liability coverage in respect of the
Building and/or the Premises.
b) The Lessee shall not carry on any operation or work whereby any
insurance in respect of:
i) the Premises;
ii) all or any part of the Building of which they form a part; and/or
iii) the contents of any space in the Building
which may become void or voidable, or which would increase the rate
for insurance (including contents) in comparison to normal insurance
costs in comparable buildings.
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PROVIDED HOWEVER, in the event that any insurance rates as aforesaid shall
be increased above those paid as of the date hereby by the Lessor and/or in the
event that at any time hereafter the insurance cost to any other lessee in
respect of the Building is increased by virtue of the Lessee's use or occupation
of the Premises, the Lessee shall pay to the Lessor the amount by which the
insurance premium shall be so increased or the Lessee shall (at the election of
the Lessor) provide additional insurance coverage as may be required at its own
expense in order that the original amount and type of insurance coverage shall
be maintained. If notice of cancellation shall be given respecting any insurance
policy or if any insurance policy be refused to be renewed by an insurer by
reason of the use or occupation of the Premises or any part thereof by the
Lessee or by anyone permitted by the Lessee to be upon the Premises, the Lessee
shall forthwith remedy or rectify such occupation or use upon being requested to
do so in writing by the Lessor. If the Lessor shall fail to do so forthwith or
shall (at the election of the lessor) fail to procure equivalent insurance to
that cancelled or refused, the Lessor may at its option terminate this Lease and
the Lessee shall immediately deliver up vacant possession of the Premises to the
Lessor.
7. ASSIGNMENT AND SUBLETTING
The Lessee shall not assign or sublet without the prior written consent of
the Lessor (which consent shall not be unreasonably withheld) provided that no
assignment or subletting shall discharge or release the Lessee from the full
observation and performance of all the terms, conditions, covenants, agreements
and provisos herein contained on the part of the Lessee to be observed and
performed (subject to the release of Lessee as to the terms of this provision as
described in the following paragraph). The Lessee shall, in respect of any
assignment or sublease, cause the assignee or sublessee from time to time of the
Lessee's interest in respect of this lease, and concurrent with or prior to the
assignment or subletting, to enter into an agreement in writing with the Lessor
covenanting and agreeing to observe, perform and be bound by all of the terms,
conditions, covenants, agreements and provisos herein contained on the part of
the Lessee to be observed and performed. The Lessee shall be liable and
responsible for all reasonable third party legal costs incurred by the Lessor in
either preparing, revising, considering or approving any written agreement
submitted to the Lessor pursuant to the immediately preceding sentence, such
costs to be payable by the Lessee on request for payment by the Lessor.
PROVIDED FURTHER, HOWEVER, that within seven (7) days of receipt of notice from
the Lessee of its intention to assign, pledge or sublease the Premises, the
Lessor may serve notice upon the Lessee of its intention to accept a surrender
of the Lease of the Premises and the Lessee shall surrender the Lease of the
Premises. PROVIDED FURTHER, HOWEVER, that in the event of such assignment or
subletting, all monies paid by the Assignee or Sublessee shall be paid directly
to the Lessor who shall credit the sum as and when received to payments required
and reserved hereunder. The Lessor and the Lessee shall share any excess of such
monies over and above monies payable and reserved hereunder (the "Excess") for
their own use, respectively, absolutely and forever, specifically, the Lessor
shall receive 60% of the Excess and the Lessee shall receive 40% of the Excess.
The Lessor shall remit to the Lessee the Lessee's 40% portion of the Excess
within seven (7) days of the Lessor's receipt of such Excess. In the case of
such sublease of the premises, the Lessor has the right to fully release the
Lessee from any and all further obligations under this Lease forever. If the
Lessor elects to release the Lessee under these conditions, then the Lessor will
notify the Lessee in writing of such release. The Lessor will also specify in
such written notification that it is granting a full release to the Lessee of
any obligations and covenants under this Lease forever and will specify the
effective date of such release. Upon such release, the Lessor will then be
entitled to retain 100% of the Excess received on payments received pursuant to
the sublease after such effective date of the release. Additionally, Lessor
shall refund all prepaid rent to Lessee within seven (7) days after such
effective date of release.
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8. CLEANLINESS OF PREMISES
The Lessee shall not place, leave or permit or suffer to be placed, left in
or upon the roads, parking lots, sidewalks and delivery areas forming part of
the said lands any debris or refuse and will at all times during the Term, at
its sole cost and expense, keep the Premises in a clean, wholesome and sanitary
condition, free and clear of all waste paper and other substances which would be
a nuisance or liable to occasion fire and will cause all dirt, rubbish, garbage
and other refuse matter on or about the Premises to be carefully collected and
promptly disposed of in a manner satisfactory to the Lessor, and will at all
times exercise and take reasonable precautions to protect the Premises against
fire and vandalism.
9. COVENANT TO REPAIR
The Lessee shall at all times during the Term of this Lease at its sole
cost and expense, well, properly and sufficiently repair, decorate, maintain,
mend and keep the Premises with the appurtenances (including but without
restricting the generality of the foregoing, signs and the inside and outside
plate glass windows and doors if damage caused by Lessee or any agents of the
Lessee) in good and substantial repair, and repair and maintain all fixtures and
things which at any time during the Term of this Lease are located or erected in
or upon the Premises, such repair and maintenance to be made by the Lessee when,
where and so often as needed, save and except repairs necessitated by damage
from hazards against which the Lessor is required to insure hereunder, and
subject to the following:
Lessor represents that all of the following are in good working condition
and comply with all related laws and codes, and further that Lessor is
responsible for maintaining in good working condition, and repairing as needed:
all structural areas, electrical systems, HVAC systems, plumbing, roofing,
concrete, flooring, common areas, and any and all other structural and/or
permanent fixtures that would reasonably be construed as items comprising or
attached to the property.
10. NOTICE OF DEFECTS
The Lessee shall give the Lessor immediate notice in writing of any
accident occurring within the Premises or upon the Lands or any defect in or
damage thereto which comes to the notice of the Lessee.
11. INSPECTION BY LESSOR
The Lessor, by its servants or agents, may at all reasonable times during
the Term hereof enter upon the Premises and view the state of repair thereof,
provided the Lessor gives Twenty-four (24) hours notice to the Lessee of such
intent to view the Premises, and further that all want of reparation that upon
such view shall be found, the Lessee shall within ten (10) days next after such
notification of such need to repair shall well and sufficiently repair and make
good the same insofar as the Lessee is bound to do.
12. GLASS, DOORS AND WINDOW DAMAGE
The Lessee shall be responsible for the repair and costs thereof of all
damage to plate glass, doors and windows in the Premises, should such damage be
caused by the Lessee, its employees or invitees.
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13. INSURANCE
The Lessee shall insure the Lessor and the Lessee, including but without
restricting the generality of the foregoing, their respective servants,
employees, invitees and agents and keep them insured against legal liability for
damages to persons or property caused by the use and occupancy of the Premises
by the Lessee with any insurance company or companies licensed to do business in
the Province of Alberta, in such amounts as the Lessor may from time to time
reasonably require, which at the commencement of this Lease shall not be less
than One Million ($1,000,000.00) Dollars for any one occurrence, and the Lessee
shall keep in force a policy of insurance which will provide that if any damage
is occasioned to the Premises by a person or persons during the course of
burglary, attempted burglary, or vandalism the entire cost of repairing such
damage will be paid by the insurer at the request of the Lessor.
The Lessee shall take out and maintain in respect of its property on the
Premises, fire insurance with extended coverage and water damage insurance, the
Lessee's property to include, without limitation, its improvements, furniture,
equipment, fittings, fixtures and stock-in-trade, in an amount adequate to cover
fully any loss that the Lessee may sustain.
The cost of the premiums for each and every such policy shall be paid by
the Lessee and the Lessee shall provide the Lessor with a certified copy of the
insurance policy to be taken out by the Lessee in accordance with the preceding
provisions hereof and shall provide the Lessor with evidence of due payment of
all premiums for such insurance. The Lessee shall obtain from the insurers under
such policies undertakings to notify the Lessor in writing at least ten (10)
days prior to any material change or cancellation thereof. The Lessee agrees
that if the Lessee fails to take out or maintain such insurance, the Lessor
shall have the right to do so and pay the premiums therefor and in such event,
the Lessee shall repay to the Lessor on demand the amount so paid plus and
administrative fee or 15% and should the Lessee fail to pay such amounts, the
same shall be deemed to be rent in arrears and collectable as such.
The Lessor shall insure the Lessor and the Lessee, including but without
restricting the generality of the foregoing, their respective servants,
employees, invitees and agents and keep them insured against legal liability for
damages to persons or property not caused by the use and occupancy of the
Premises by the Lessee with any insurance company or companies licensed to do
business in the Province of Alberta, which at the commencement of the lease
shall not be less than One Million ($1,000,000.00) Dollars for any one
occurrence, and the Lessor shall keep in force a policy of insurance which will
provide that if any damage is occasioned to the Premises by a person or persons
during the course of burglary, attempted burglary, or vandalism the entire cost
of repairing such damage will be paid by the insurer at the request of the
Lessor.
The Lessor shall take out and maintain in respect of its property on the
Premises, fire insurance with extended coverage and water damage insurance, the
Lessor's property to include, without limitation, its improvements, furniture,
equipment, fittings, fixtures and stock-in-trade, in an amount adequate to cover
fully any loss that the Lessor may sustain.
14. COMPLIANCE WITH LAWS
The Lessee and the Lessor will abide by all laws, by-laws, legislative and
regulatory requirements of any Governmental or other competent authority
relating to the business conducted on the Premises and will save each other
harmless from all costs or charges incidental thereto, or damages or penalties
by reason of breach thereof. Lessor warrants that the property complies with all
laws and codes, and that the property is fit for general office use.
15. JANITORIAL SERVICE
The Lessee shall cause whenever reasonably necessary the floors, light
fixtures,
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walls, bathrooms, stairwells, hallways and windows of the Premises to be cleaned
and maintained in a first class manner and shall undertake to do so throughout
the Term of the Lease. Janitorial service to be provided by the Lessee shall
include the replacement of all interior electrical light bulbs, rubes and
ballasts on the Premises whenever necessary.
16. HEATING AND AIR-CONDITIONING
The Lessee will at all times maintain the heating and cooling thermostat
within the Premises at not less than sixty (60 degrees) degrees Fahrenheit, and
not greater than eighty (80 degrees) Fahrenheit. The Lessee shall not install
any equipment within the Premises which may require additional cooling capacity
beyond that which is intended for normal occupancy of the Premises for general
office purposes. The Lessee shall construct or cause anything to interfere with
the normal operation of the heating and air-conditioning system or the ducts
through which it operates.
AND THE LESSOR COVENANTS WITH THE LESSEE:
17. QUIET ENJOYMENT
The Lessor hereby covenants with the Lessee that the Lessee, upon paying
the rent hereinbefore reserved at the times and in the manner aforesaid, and
upon observing and performing each and every term, condition, covenant,
agreement and provision herein contained, shall and may from time to time and at
all times during the Term peaceably and quietly enjoy the Premises without
molestation or hindrance by the Lessor, or any person, firm or corporation
claiming by, through and under it.
18. USE OF COMMON AREAS
As part of the consideration for this Lease, the Lessor hereby grants to
the Lessee, its servants, agents, employees, invitees and licensees, throughout
the Term, the privilege of using in common with other persons entitled thereto
all those portions of the common areas of the said lands, save and except the
Lessee its employees and customers shall not during normal business hours be
permitted to use the parking lot located at the rear Building.
PROVIDED HOWEVER that the Lessor reserves the right at any time during the Term,
with reasonable notice to the Lessee, to take possession of all or any part of
the common areas for any purpose whatsoever. PROVIDED FURTHER, HOWEVER, for the
good and welfare of all persons entitled to use the common areas, the Lessor
expressly reserves the right to reasonably promulgate rules and regulations
relating to the use thereof, and such rules and regulations shall be binding
upon the Lessee upon the Lessor giving notice thereof to the Lessee or by
posting the same in a conspicuous place within the confines of the common areas.
IT IS MUTUALLY AGREED BY AND BETWEEN THE LESSOR AND THE LESSEE AS FOLLOWS:
19. LESSEE'S IMPROVEMENTS
The Lessee may at any time, and from time to time, with the consent of the
Lessor in writing, make such changes, alterations or improvements to and may
paint and decorate the interior of the Premises, in such manner as shall in the
judgment of the Lessee better adapt the same for the purpose of its business,
provided that:
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(a) No changes, alterations, additions or improvements shall be made
without the prior written consent of the Lessor;
(b) All changes, alternations, additions and improvements shall comply
with all statutes, regulations, by-laws, specifications or
requirements of any municipal, provincial federal or other authority;
(c) The Lessee shall observe all the provisions of the within Lease
relating to fire regulations and insurance policies.
20. EMINENT DOMAIN
If the whole of the Building shall be taken by any public authority under
the power of eminent domain, this Lease shall terminate from the day possession
shall be taken for such public purpose and the Lessee shall be liable for
rental only up to the date of such taking.
If a part only of the Premises and the Building shall be taken by any
public authority under the power of eminent domain, the Term shall cease from
the day possession shall be taken for such public purpose insofar as the
premises so taken comprise part of the Premises, and the Lessee shall be liable
only for rent in respect of the part of the Premises so taken up to the date of
the taking and, if the remainder of the Premises shall be suitable for the
purposes of the Lessee, the Lessee shall remain in possession of the remainder
of the Premises and the rent payable hereunder shall be reduced in the
proportion that the area of the Premises so taken bears to the entire area of
the Premises. If the remainder of the Premises shall be unsuitable for the
purposes of the Lessee, the Lessee shall be entitled to terminate this Lease as
at the date of such taking and the Lease and Rent shall cease and terminate at
such date.
All compensation or damages awarded in respect of such taking of the
Premises and any diminution in value of the remainder thereof shall be the
property of the Lessor, but the Lessee shall be entitled to receive such
compensation or damages as it may be able to establish against such public
authority in respect of loss of occupancy and its leasehold improvements.
Upon a termination pursuant to this section, Lessor shall return any prepaid
rent to Lessee within seven (7) days of such termination.
21. REMOVAL OF FURNITURE AND EQUIPMENT
The Lessee may throughout the Term or within three (3) days after the
termination of the Term, take, remove and carry away from the Premises all
furniture, and equipment placed in or upon the Premises which is the property
of the Lessee, but the Lessee shall in such removal do no damage to the Premises
or shall make good any damage which it may occasion thereto. PROVIDED that the
Lessee shall not remove any furniture, equipment, goods or chattels of any kind
from the Premises should the Lessee be in default of any rent or other monies
due hereunder until said monies have been fully paid to the Lessor.
22. DAMAGE BY FIRE OR FLOOD
If during the Term hereby demised or any renewal thereof the Building or
the Premises or any part thereof shall be damaged by fire, explosion, lightning
or tempest or flood, earthquake, tornado, or other natural disaster, then the
following provisions shall have effect:
(a) In the event that the Premises shall be so badly injured as to be
unfit for occupancy and be incapable of being repaired with
reasonable diligence within Sixty (60) days of the happening of such
injury, then the Term hereby granted shall cease and be at an end to
all intents and purposes from the date of such damage or destruction
and the Lessee shall immediately surrender the same and
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yield up possession of the Premises to the Lessor, and no rent shall
be payable from the happening of the injury, and all rents prepaid at
such time shall be repaid by the Lessor to the Lessee.
(b) In the event that the Premises shall be capable, with reasonable
diligence, of being repaired and rendered fit for occupancy, within
Sixty (60) days from the happening of such injury as aforesaid and
should the damage be such as to render the Premises wholly unfit for
occupancy during the process of such repairs, then the rent hereby
reserved shall not accrue after such injury, or while the process of
repair is going on, and the Lessor shall repair the same with all
reasonable diligence and the rental shall recommence immediately
after such repairs shall be completed.
(c) In the event that the Premises can be repaired within Sixty (60) days
as aforesaid, and if the damage is such that the said Premises are
capable of being partially used, then until such damage shall have
been repaired, the rent shall xxxxx in the proportion that the part of
the Premises rendered unfit for occupancy bears to the whole of the
Premises.
In the event that the Lessor and the Lessee cannot agree as to whether
or not the Building can in fact be repaired with Sixty (60) days, the
arbitration provisions of this Lease shall apply.
23. ALTERATIONS BY LESSOR
The Lessor shall be at liberty at any time during the Term hereby granted
to make such changes, alterations, additions or improvements in or to the
Building and the fixtures and equipment thereof, as may be necessary or
desirable, PROVIDED that the Lessor shall not use any of the Common Areas in
such a way as to restrict access to the Lessee's Premises. The Lessor shall also
be entitled to add to the Building or construct additional Buildings on the
Lands as may be approved by the appropriate governing body.
24. LIENS
The Lessee shall not suffer or permit during the Term any builders' or
other liens for work, labor, services or materials ordered by it or for the cost
of which it may in any way be obligated, to with respect to the Lands, or the
Premises or any portion thereof, or to any improvements erected upon the same,
and that whenever and so often, if ever, as any such lien or liens shall be
filed or shall attach to the title for the Lands the Lessee shall, within a
period of Fourteen (14) days thereafter, either pay the same or procure the
discharge thereof by giving security or in such manner as is or may be required
or permitted by law.
25. PERFORMANCE BY LESSOR OF LESSEE'S COVENANTS
Upon the failure of the Lessee to perform any of the terms, conditions,
covenants, agreements and provisions herein contained which may be performed by
the employment of labor or by the payments of money, the same may be paid for or
performed by the Lessor, and the cost of such work the Lessor shall be entitled
to recover plus an administration fee of 15% from the Lessee in the same manner
as if the amount was Rent as set out herein.
26. NOT APPLICABLE
27. SUBORDINATION OF LEASE
This lease is subject and subordinate to any mortgage or deed of trust
which may now or at any time hereafter affect the Building situated upon the
Lands, or upon any other
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buildings hereinafter placed upon the Lands, and this Lease shall also be
subject and subordinate to all renewals, modifications, consolidations,
replacements and extensions of any such mortgage or deed of trust, PROVIDED
HOWEVER; if the Lessee is requested by the Lessor to execute any such instrument
to carry out the intent of this Article, and fails to do so within five (5) days
of notice so to do, then the Lessor is hereby authorized and appointed the
attorney of the Lessee to execute any such postponement agreement on its behalf.
Any instrument so executed by the Lessor shall be sufficient and the mortgagee
or the holder of the deed of trust need not inquire whether a request or demand
had been made of the Lessee for its execution, PROVIDED ALWAYS that any such
subordination shall reserve in writing to the Lessee the right of continued
possession of the Premises so long as the Lessee shall not be in default under
this Lease.
28. OVERHOLDING LESSEE
If the Lessee shall remain in possession of the Premises after the
Expiration Date or termination of this Lease without an agreement in writing to
extend the Term of the Lease executed by both the Lessor and the Lessee, the
same shall be a tenancy from month to month at a monthly rental calculated on
the basis of twice the amount of the monthly rent being paid hereunder at the
date of termination. Such month-to-month tenancy shall be held upon and subject
in all other respects to the terms, conditions, covenants, agreements and
provisos of this Lease insofar as the same are applicable to a tenancy from
month-to-month.
29. MUTUAL INDEMNIFICATION
The Lessee will save, defend, hold harmless and indemnify the Lessor, its
servants and agents, of, from and against any and all suits, claims, actions or
demands of any nature or kind to which the Lessor shall or may become liable
for or suffer by reason of any breach, violation or non-performance by the
Lessee of any term, condition, covenant, agreement or provisos hereof or by
reason of any injury occasioned to or suffered by any person or persons or any
property resulting from any wrongful act, neglect or default on the part of the
Lessee or any of its agents, servants, employees, invitees or licensees, or
arising out of the use and occupation by the Lessee of the Premises and/or the
business conducted thereon by it.
The Lessor will save, defend, hold harmless and indemnify the Lessee, its
servants and agents, of, from and against any and all suits, claims, actions or
demands of any nature or kind to which the Lessee shall or may become liable for
or suffer by reason of any breach, violation or non-performance by the Lessor of
any term, condition, covenant, agreement or provisos hereof or by reason of any
injury occasioned to or suffered by any person or persons or any property
resulting from any wrongful act, neglect or default on the part of the Lessor or
any of its agents, servants, employees, invitees or licensees.
30. CONSEQUENTIAL LOSS
The Lessor shall not be liable or responsible for any loss, injury or
damage of any nature whatsoever that may be sustained by any person or for any
loss of or damage to any property at any time in or upon the Premises, the
Building or the Lands or for any loss to the business of the Lessee caused
directly or indirectly by any latent or other defect in the Premises or the
Building and the fixtures thereto belonging by reason of the interruption of any
public utility or service, nor from or by steam, electricity, gas, water, rain
or snow which may leak into, issue from or flow from any part of the Building or
from the pipes, wires or plumbing works of the same or from any other place or
quarter or from or by any other reason, matter or cause whatsoever unless such
loss, injury or damage is based on the negligence of the Lessor, its servants,
agents or employees.
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31. DEFAULT BY LESSEE
Provided always and it is hereby expressly understood and agreed that if
and whenever the rent reserved, or any part thereof, whether lawfully demanded
or not, shall be unpaid after ten (10) days' notice of default thereof has been
duly given to the Lessee, or in case of the breach or non-performance of any of
the terms, conditions, covenants, agreements or provisos in this Lease
mentioned after ten (10) days' notice of the same having been given to the
Lessee, it shall and will be lawful for the Lessor at any time, and from time
to time hereafter, notwithstanding any former breach or non-performance or any
waiver of the Lessor's rights arising therefrom (and in addition to any other
right or remedy it may have or be entitled to), to enter upon the Premises or
any part thereof in the name of the whole and to have again, repossess and
enjoy the Premises as of their former state anything herein contained to the
contrary notwithstanding. This proviso shall extend and apply to all terms,
conditions, covenants, agreements and provisos herein contained, whether
positive or negative on the part of the Lessee to be observed or performed.
PROVIDED FURTHER, HOWEVER; no act of the Lessor of any nature or kind shall at
any time during the Term be deemed to be a waiver of any of the rights of the
Lessor unless it is effected by instrument executed in the same fashion as this
Lease.
32. PREMISES BECOME VACANT
In the event that the Premises during the Term shall be left or become
vacant and the Lessee shall fail to make payment of rent, the Lessor, its
servants or agents, may re-enter upon the same and relet the Premises and
receive the rent thereof, but the Lessee shall nevertheless remain liable for
any deficiency in such rent and for this purpose and for the purpose of any
re-entry under this or the next itself or by its servants or agents, and with
such assistants as it or they may require, at any time during the day to enter
in and upon the Premises and for that purpose to break and force open any
doors, locks, bars, bolts, fastenings and hinges.
33. LESSOR'S REMEDIES ON DEFAULT
PROVIDED FURTHER that, if and when the rent hereby reserved or any part
thereof be not paid when due after ten (10) days' notice thereof, or if any
other sums payable by the Lessee hereunder are not paid when they are payable
to the Lessor, or if the Lessee shall not observe, perform and keep all and
every of the terms, conditions, covenants, agreements and provisos herein
contained to be observed, performed and kept by the Lessee, after ten (10)
days' notice thereof, or if the Lessee shall make a bulk sale of its goods or
attempt to move its goods, chattels and equipment out of the Premises (other
than in the ordinary course of its business), or if the Term hereby granted or
the goods and chattels of the Lessee on the Premises liable to distress shall
during the said Term be seized or taken in execution or in attachment, or if
the Lessee shall become insolvent or make an assignment for the benefit of
creditors, or commit an act of bankruptcy, or in case the Premises or any part
thereof shall be used for any other purpose than is herein provided for without
the written consent of the Lessor and where such use is not terminated within
ten (10) days after written notice to terminate such use has been delivered to
the Lessee, the Lessor may at its option in any of such cases (and without
prejudice to any other right or remedy it may then have or be entitled to)
cancel this Lease, whereupon this Lease shall terminate and the Term hereby
created expire and be at an end and the Rent payable throughout the remainder
of the term shall accrue and be immediately due and payable and the said Term
shall at the option of the Lessor be forfeited, and the Lessor may immediately
distrain for such Rent together with any arrears then unpaid and the Lessor's
legal costs to obtain payment, and the Lessor may without notice or any form of
legal process forthwith re-enter upon and take possession of the Premises or
any part thereof in the name of the whole and remove and sell the Lessee's
goods, chattels and equipment therefrom, subject to applicable laws, and in
addition to any remedy otherwise provided, the Lessor may seize and sell the
goods, chattels and equipment of the Lessee at any place to which the Lessee or
any other person may have removed them in the same manner as if they had
remained and been distrained upon the Premises.
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34. LESSOR'S RIGHTS ON RE-ENTRY OR TERMINATION
If the Lessor shall re-enter or if this Lease shall be terminated by reason
of default by the Lessee:
a) Rent shall, at the selection of the Lessor (such election to be
exercised by notice in writing to the Lessee and within a period of
thirty (30) days from the date of termination or re-entry),
immediately become due and be paid up to the time of such re-entry or
termination together with the reasonable expenses of the Lessor as
hereinafter defined;
b) The Lessor may relet the Premises or any part thereof either in name
of the Lessor or otherwise, as agent of the Lessee and the Lessee does
hereby expressly unconditionally and irrevocably constitute and
appoint the Lessor as its agent for such purpose, for a term or terms
which may if the Lessor chooses be lesser or greater than the balance
of the Term of this Lease and may grant reasonable concessions in
connection therewith;
c) The Lessor may, at its election and in addition to any other remedy it
may have, require that the lessee pay to the Lessor as liquidated
damages for the failure of the Lessee to observe and perform the
covenants of this lease, monthly on the first day of each month
following such re-entry or termination and until the expiration of the
period that would otherwise have constituted the balance of the Term
of the Lease, any deficiency between:
(i) the sum of the monthly rent payable hereunder, and
(ii) the amount of any rents collected on account of the Lease of the
Premises for each month of the period which would otherwise have
constituted the balance of the Term;
d) The Lessee shall pay to the Lessor on demand such reasonable expenses
as the Lessor may incur in reletting the Premises, including
reasonable legal costs, solicitors' and brokerage fees and the
expenses of keeping the Premises in good order or preparing the
premises for reletting, and
e) The making of any alterations or improvements in the Premises, which
the Lessor considers advisable or necessary for the purpose of
reletting them, shall not operate or be construed to release the
Lessee from liability hereunder.
The terms and conditions set forth in this paragraph may be availed of by
the Lessor without limitation of any other rights or remedies the Lessor may
have or be entitled to hereunder or otherwise.
35. NON-EXCLUSIVENESS OF REMEDIES AND WAIVER
The specific remedies to which the Lessor may resort under the terms of
this lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which the Lessor may lawfully be entitled in
case of any breach or threatened breach by the Lessee of any term, condition,
covenant, agreement or proviso of this Lease.
The waiver by the Lessor of any breach by the Lessee of any term,
condition, covenant, agreement or proviso herein contained shall not be
construed as or constitute a waiver of any further or other breach of the same
or any other term, condition, covenant, agreement or proviso and the consent or
approval of the Lessor to or of any act by the Lessee requiring the
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Lessor's consent or approval shall not be deemed to waive or render unnecessary
the Lessor's consent or approval to any subsequent similar act by the Lessee.
The Lessee undertakes and agrees that the acceptance by the Lessor of
any rent from any person other than the Lessee shall not be construed as a
recognition of any rights not herein expressly granted or as a waiver of any of
the Lessor's rights, or as an admission that such person is or as the consent
that such person shall be deemed to be, an assignee or sub-tenant of this Lease
irrespective of whether the Lessee or the said person claims that such person is
an assignee or sub-tenant of this Lease. The Lessor may accept rent from any
person occupying the Premises at any time without in any way waiving any rights
under this Lease.
36. INTEREST
All rent in arrears and all sums paid or expenses incurred hereunder by
the Lessor, which ought to have been paid or incurred by the Lessee, or for
which the Lessor is entitled hereunder to reimbursement from the Lessee, shall
bear interest at the greater of either Royal Bank of Canada prime rate plus 5%
or eighteen (15%) percent per annum from the date same becomes due, or was spent
or incurred, as the case may be, until the date of payment or repayment PROVIDED
that in each case the Lessor shall give written notice to the Lessee of such
sums due and payable and the Lessee shall have seven (7) days after receipt of
such written notice from the Lessor to pay any such arrears, and if such amounts
are paid during such period, interest shall not be payable by the Lessee. All
monies payable by the Lessee to the Lessor in respect of interest shall be
deemed to be Rent and shall be recoverable as such by the Lessor.
37. SOLICITORS' FEES
If the Lessor at any time incurs reasonable legal fees and costs in
instituting or prosecuting any action or proceedings based upon any default of
the Lessee under this Lease, all such fees and costs (on a solicitor/client
basis) shall be payable by the Lessee to the Lessor and be recoverable by the
latter as Rent. All such fees and costs shall be payable by the Lessee to the
Lessor upon demand for payment being made.
38. FORCE MAJEURE
Whenever and to the extent that the Lessor or the Lessee shall be unable to
fulfill or shall be delayed or restricted in fulfilling any obligations
hereunder in respect of supply or provision of any heating, service or utility
or the doing of any work or the making of any repairs by any cause beyond its
reasonable control, such party shall be relieved from the fulfillment of such
obligation during the period during which it shall be so unable to fulfill or
shall be so delayed or restricted in fulfilling such obligation, PROVIDED
HOWEVER that nothing contained in this clause shall relieve any party having a
duty to make any repair from taking such interim and conservatory measures
during the period while it is prevented from effecting such repair, as may be
necessary or advisable for the preservation and safety of the Building. Rent
shall be abated accordingly for any and all periods due to such inability or
delay of the Lessor to fulfill its obligations hereunder.
39. REPRESENTATIONS
The Lessee hereby acknowledges that the Premises are taken without
representation of any kind on the part of the Lessor or its agent other than
as set forth herein. It is understood and agreed that no representative or
agent of the Lessor or Lessee is or shall be authorized or permitted to make
any representation with reference hereto, or to vary or modify this Agreement
in any way, and that this Lease contains all of the terms, conditions,
covenants, agreements and provisions made between the parties hereto and that
any addition to or alteration of or changes in this Lease, or other agreements
hereafter made or condition created to be binding.
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must be made in writing and signed by both parties.
40. RESERVATION TO LESSOR
All outside walls of the Premises and any space in the Premises used
for stairways and passageways to other adjoining premises, shafts, stacks,
pipes, conduits, ducts or other building facilities, the heating, electrical,
plumbing air-conditioning and other systems and the use thereof, as well as
access thereto through the Premises for the purpose of use, operation,
maintenance and repair are hereby expressly reserved to the Lessor, on the
understanding that the Lessor or the Lessee shall have the right to access the
Premises to conduct repairs for which each party is responsible as set out
herein.
41. SPECIAL CLAUSES
1. ARBITRATION
Whenever in this Lease it is provided that any matter in dispute
between the Lessor and the Lessee, if not settled or agreed between
them, is to be determined by arbitration, the same shall be decided by
a single arbitrator mutually agreeable to both Lessor and Lessee, to
the provisions of "The Arbitration Act" of the Province of Alberta and
amendments thereto. The prevailing party in such arbitration shall be
entitled to reasonable reimbursement of attorney's fees and costs
related to the dispute, as well as reasonable attorneys fees and costs
incurred in collecting the same.
2. GOODS AND SERVICES TAX
All amounts due by the Lessee to the Lessor under the terms of the
Lease that are subject to the Goods and Services Tax shall be paid by
the Lessee to the Lessor including the amount of the Tax, upon
notification by the Lessor of such amounts due. Payments by the Lessee
to the Lessor are due and payable within the times specified under the
terms outlined in the applicable sections of the Lease.
3. FURNITURE AND APPLIANCES
The Lessor shall, during the terms of this Lease, provide the Lessee
with the stairwell credenza, boardroom table and chairs, and
refrigerator, all of which are presently located in the Premises.
4. TERMINATION PENALTY
This Lessee, upon providing one hundred twenty (120) days written
notice to the Lessor, may terminate this Lease upon the payment of
penalty of Fifty-Five Thousand One Hundred Twenty ($55,120.00)
Dollars.
42. AMENDMENTS TO LEASE
If the holder of any mortgage or mortgages or any charge resulting
from any other method of financing or re-financing, declaration of trust,
debenture issue or any other such method of financing or re-financing now or
hereafter in force against the Building situate within the Lands shall at any
time require any change not of a substantial nature in any of the terms,
covenants and provisions of this Lease, the Lessee agrees to the modification of
this Lease to comply with the requirements of such party, provided always that
there is no increase in the Rent or other monies to be paid hereunder, any
increase in the length of the Term hereby created and that such requirements do
not impose undue burdens upon the Lessee and do not involve
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alterations of substance in the covenants and agreements herein contained.
43. HEADINGS
The parties hereto agree that the headings used throughout this Lease form
no part of this Lease and shall be deemed to have been inserted for convenience
of reference only.
44. DEFINITION
The word "Lessor" as used throughout this Lease shall mean: The Party of
the First Part hereto, PROVIDED HOWEVER that if the Lessor shall convey title to
the said lands and shall notify the Lessee in writing of such conveyance and the
name and address of the new owner, the word "Lessor" shall, from and after the
date upon which such notice is given, mean only such new owner.
45. NOTICES
Any notice herein provided or permitted to be given by the Lessee shall be
sufficiently given if mailed, in the absence of a postal strike, postage
prepaid, addressed to the Lessor as follows:
Certus Developments Inc.
000, 000 - 00xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Any notice herein provided or permitted to be given by the Lessor to the
Lessee shall be sufficiently given if mailed, in the absence of a postal strike,
postage prepaid, addressed to the Lessee as follows:
0000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
And a copy to:
Xxxxxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
NOTICE given as aforesaid shall be conclusively deemed to have been given on the
third business day following the day on which such notice is mailed. The Lessor
may at any time give notice in writing to the Lessee of any change of address
giving such notice and from and after the giving of such notice addressed
therein specified shall be deemed to be the address of such for the giving of
notices hereunder. The word "notice" in this clause shall be deemed to include
any request, statement or other writing in this Lease provided or permitted to
be given by the Lessor to the Lessee or by the Lessee to the Lessor.
46. RIGHT OF RENEWAL.
Provided the Lessee is not in default of this Lease the Lessee shall be
entitled to
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renew the Term of the Lease upon the Expiration Date as set out herein for a
further term of Five (5) years as the then fair market gross rent for premises
located within buildings in the immediate trade area having regard to general
quality of premises, building, and interior improvements.
Further provided the Lessee shall notify the Lessor in writing of its decision
to renew the Lease not more than Nine (9) months nor less than Six (6) months
prior to the expiration of the Lease Term failing which the Lessee shall have
no right of renewal as set out herein. In the event the Lessee provides such
notice and the parties are unable to agree upon the fair market gross rent for
the Premises the Rent shall be determined by arbitration pursuant to the
Arbitration Act of Alberta. Notwithstanding which should the fair market gross
rent be determined to be less than the Rent as set out herein the Lessor may at
their option choose to terminate the Lease and the Lessee shall thereupon
vacate the Premises at the expiration of the Lease Term.
47. INTERPRETATION
The terms "Lessor" and "Lessee" and the pronouns relating thereto,
where used herein shall, where the context makes it possible, include the
heirs, executors, administrators, successors and assigns of the parties hereto,
and shall include the feminine and plural and a body corporate where the
context or the party or parties hereto so required and, where there is more
than one Lessee, all covenants shall be deemed joint and several. The word
"term" where it appears herein shall mean the Term hereby created together with
every renewal thereof, if any.
48. TIME OF ESSENCE
Time is of the essence of these presents.
49. PARKING
It is understood that the Lessor has access to 5 parking stalls
situated on the lands located directly to the west of the Lands and that such
parking stalls are provided to the Lessor at no charge by the adjacent land
owner in exchange for a reciprocal evening shared parking arrangement on the
Lands, and that at any time either the Lessor or the adjacent land owner may
terminate said parking agreement in which event the Lessor shall have no
further right to the use of said parking stalls, and the adjacent land owner
shall have no further right to the use of parking stall located upon the Lands.
It is understood that the Lessee may have the use and enjoyment of said 5
parking stalls at no additional cost throughout the Term of the Lease provided
said mutual parking agreement remains in place and is not terminated as set out
herein. However, in the event said parking agreement is terminated the Lessee
shall make alternate parking arrangements, and in no event shall the Lessee be
entitled to park on the Lands during normal business hours. Furthermore the
Lessor shall not be responsible to compensate the Lessee in any manner
whatsoever for the loss of said parking.
50. ENUREMENT
This Lease and the terms, conditions, covenants, agreements and
provisos herein contained shall enure to the benefit of and shall be binding
upon the parties hereto, their respective heirs, executors, administrators,
successors and assigns.
IT WITNESS WHEREOF the parties have hereunto affixed their hands and
seals the day, month and year first above written.
CERTUS DEVELOPMENTS INC.
(LESSOR) c/s
Per /s/ [Signature Illegible]
---------------------------------
Per /s/ [Signature Illegible]
---------------------------------
(SEAL)
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XXXXXXXXXXXX.XXX, INC.
(LESSEE)e's
Per: /s/ Xxxx X. Xxxx
--------------------------
Per:
--------------------------
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SCHEDULE 'A'
[MAP]
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SCHEDULE 'B'
Operating Costs
- exterior property maintenance
- landscaping
- exterior building repairs
- snow removal
- building insurance
- parking lot supervision
- exterior lighting
- building administration
- property management
- the cost of salaries and benefits relating to all management and
maintenance personnel
- repair and maintenance of building operating systems
- real estate taxes
