THIS LEASE MADE EFFECTIVE the I st day of April, 1997.
BETWEEN:
ARCURI HOLDINGS
a body corporate with an office in the
City of Calgary, in the Province of Alberta
(hereinafter called the "Landlord')
OF THE FIRST PART
and -
CAL-ALTA AUTO GLASS LTD.
a body corporate with an office in the
City of Calgary, in the Province of Alberta
(hereinafter called the "Tenant")
OF THE SECOND PART
1. LEASED PREMISES
This agreement witnesses that in consideration of the rents and covenants
contained herein, the Landlord does demise and lease unto the Tenant those
premises (hereinafter called the "demised premises") comprising and including a
commercial building (hereinafter called the "building") and lands municipally
described as 3927 Edmonton Trail N.E., Calgary, Alberta and legally described as
follows:
Condominium Plan 9511327
Unit 8
And 1003 undivided One Ten
Thousandths shares in the common property therein
Expecting thereout all mines and minerals
(hereinafter called the "lands").
2. TERM
The term (hereinafter called the "term") of the Lease shall be Five (5)
years commencing on the 1st day of May 1997 and ending on the 3 1st day of April
2002, subject to possible earlier termination as hereinafter provided.
3. RENT
Yielding and paying therefore unto the Landlord for each and every year of
the term:
3.1 Minimum Rent A minimum annual rental (hereinafter called the "minimum
rent"): 3.1.1 in the firs, second, third, fourth and fifth years of the terms,
at the rate of Sixteen Thousand Eight Hundred ($16,800.00) Dollars per annum
(not including G.S.T.) in lawful monies of Canada payable in advance through
consecutive monthly installments of One Thousand Four Hundred ($1,400.00)
Dollars each on the first day of each month of the said term;
3.1.2 There will be one month free rent on the anniversary of the lease for
four years
3.2 Additional Rent
The Tenant shall pay as additional rent (hereinafter called the "additional
rent") any and all costs, charges and expenses in respect of the demised
premises (including the building and the lands) including without in any way
restricting the generality of the foregoing:
3.2.1 the cost of gas, oil, power, electricity, water, sewer,
communications and all other utilities and services, together with the direct
cost of administering such utility services;
3.3. Goods and Services Tax
The Tenant shall pay to the Landlord an amount equal to all Goods and
Services Tax imposed or to be imposed by any governmental authority with respect
to minimum rent, additional rent and other charges payable by the Tenant to the
Landlord under this Lease. Such amount as may be applicable is to be paid to the
Landlord by the Tenant with each payment of minimum rent, additional rent or
other charges on the date such payment is otherwise due under this Lease,
without reference to any Goods and Services Tax remitted or to be remitted by
the Landlord to the governmental authority in respect thereof. The amount
payable by the Tenant hereunder shall not be or be deemed to be minimum rent,
additional rent or other charges, however the Landlord shall have all of the
same rights and remedies for recovery of Goods and Services Tax as it has for
recovery of minimum rent, additional rent and other charges hereunder, including
the right to distrain therefor.
In addition to the Landlord's normal rights and remedies, the Tenant shall
indemnify the Landlord in respect of any claim or loss which the Landlord may
suffer as a result of any default in remitting the amount to the governmental
authority which arises from the Tenant's obligations hereunder including any
penalty relating thereto or interest thereon.
For this purpose, the "Goods and Services Tax" means any form of
consumption, sales or value added tax imposed or levied by any Canadian
governmental authority during the term of this Lease.
4. INTEREST
The Tenant acknowledges that all payments arising under this Lease shall be
due and payable as herein provided and that should payment not be received by
the Landlord when due, the Tenant shall pay interest compounded annually at a
rate equal to the greater of one and one half (1.5%) percent per month (being
eighteen (18%) percent per annum).
All interest so owing by the Tenant to the Landlord shall be considered as
rent for the purposes of this Lease and shall be recoverable by the Landlord in
the same manner as rent in arrears.
5. USE OF PREMISES
5.1. The main floor of the demised premises shall not be used for any
purpose other than a Auto Glass Shop.
5.2. The Tenant covenants and agrees to occupy the demised premises
throughout the entire term and to operate and conduct business therein, without
any interruption whatsoever, in an up-to-date and reputable manner befitting the
building.
6. NUISANCE
The Tenant shall not do or suffer any waste, damage or disfiguration or
injury to the demised premises or any of the fixtures or equipment therein. The
Tenant shall not any time during the term use, exercise, or carry on or permit
or suffer to be used, exercised or carried on, in or upon the demised premises
or any part thereof, any dangerous, noxious or offensive activities, trade,
business, occupation or calling and shall not suffer or permit any act, matter
or thing whatsoever at any time during the term to be done in or upon the
demised premises, or any part thereof which shall or may be or cause an
annoyance, nuisance, grievance, damage or any disturbance to persons occupying
the demised premises or to the owners of occupants of any adjoining lands and
properties and without restricting anything heretofore set out in this clause,
the Tenant shall not carry on or suffer or permit to be carried on any
undertaking which is illegal or which is, in the Landlord's sole opinion,
dangerous, or bring or keep anything upon the demised premises which is illegal
or which is, in the Landlord's sole opinion, dangerous, or which will in any way
increase the rate of fire insurance on the demised premises or on property or
contents kept therein or associated therewith, whether owned by the Landlord, or
conflict with the laws relating to fires or with any insurance policy upon the
demised premises or any part thereof.
7. COMPLIANCE WITH LAWS
The Tenant shall at all times and in all respects comply with and conform
to the requirements of every applicable statute, by-law, law, ordinance and
order at any time from time to time in force affecting the demised premises, or
any part thereof and the Tenant will make no use of the demised premises or any
part thereof which will or may impose upon the Landlord any obligation to
modify, extend, alter or replace any part of the building, or any of the
machinery, equipment and other facility used in connection therewith.
8. REPAIR
8.1 The Tenant shall at all times during the term keep the demised premises
in good and proper repair, latent defects, reasonable wear and tear, structural
repairs and repairs necessitated by damage from hazards and perils against which
the Landlord is required to insure only expected. The Landlord may at all
reasonable times effect any such repair and charge the cost thereof plus ten
(10%) percent to the Tenant in the event that the Tenant fails to complete said
repairs within ten (10) days from the date notice is given by the Landlord to
the Tenant to do so.
8.2 The Tenant shall keep in good order and repair and protect the demised
premises and all water and drain pipes, water closets, faucets, sinks and
accessories thereto, within the demised premises, from frost during the winter
and cold weather and shall, at all times, adequately heat the demised premises,
and will keep at all times the same free from uncleanliness or obstruction that
may prevent the free and proper working thereof until the termination of this
Lease and shall thereupon leave the same in good order and condition, reasonable
wear and tear and damage from hazards and perils against which the Landlord is
required to insure only excepted, and the Tenant shall be responsible for
maintenance and decoration of the demised premises from and after the
commencement of this Lease.
8.3 Notwithstanding the foregoing, the Landlord shall maintain in good
repair the outside walls (excluding windows and doors), floor and roof of the
building as well as the structural soundness thereof, except those repairs
resulting from any alterations performed by the Tenant.
8.4 The Landlord and any workmen engaged by the Landlord ma enter the
demised premises at any reasonable time to inspect the state of the demised
premises.
9. ALTERATIONS
9.1 The Tenant shall not, without the prior written consent of the
Landlord, make, erect or install any partitions (including portable partitions),
leasehold improvements, alterations, equipment of fixtures (including trade
fixtures) in or about the demised premises. If the Landlord consents to any such
proposed alteration, addition, substitution or improvement of the demised
premises, prior to commencement of any such work, the Tenant shall submit to the
Landlord for approval drawings and specifications detailing such work and the
Tenant shall thereafter obtain the Landlord's prior written consent to any
change or changes in such drawings or specifications. Such work may be performed
by competent contractors or workmen who are approved in writing by the Landlord
and such work shall be subject to all conditions which the Landlord may
reasonably impose. The Tenant shall submit to the Landlord's supervision and
shall pay the Landlord's fee which shall include any costs or charges incurred
by the Landlord in having the Landlord's architect, engineer or other
consultants review the Tenant's plans and specifications.
9.2 The Tenant shall not suffer or permit any builders' or other liens for
work, labour, services or materials ordered by it or for the costs of which it
may in any way be obligated, to attach to the demised premises and whenever and
so often as such liens shall attach or claims therefore shall be filed, the
Tenant shall, within twenty (20) days after the Tenant has notice of the claim
or lien, procure the discharge thereof by payment or by giving security or by
such other manner as is or may be required or permitted by law.
10. NOTIFY LANDLORD
The Tenant shall immediately notify the Landlord of any accidents or
defects in or upon the building, the demised premises, the water pipes, plumbing
and heating apparatus, ventilation and air conditions equipment (if any) and
electrical wiring and fixtures thereof, and as well of any matter or condition
which may cause injury or damage to the demised premises or any person or
property located therein.
11. INDEMNITY
Notwithstanding any other provision of this Lease, the Tenant shall be
responsible for and indemnify the Landlord against all claims, loss, injury,
damages and costs of any kind whatsoever arising directly or indirectly out of
any repair of failure to repair, maintenance, replacement, alteration, addition,
substitution or improvement of the demised premises or any part thereof made by
or for the Tenant or by reason of any act or neglect of the Tenant, its
officers, agents, employees, servants, invitees or licensees or any use,
occupation, possession, operation or maintenance of the demised premises.
12. TENANT'S IMPROVEMENTS AND FIXTURES
Subject to the succeeding provisions of this clause, the Tenants fixtures,
including any fixtures directly or indirectly paid for or supplied by the
Landlord, together with all Landlord's absolute property without compensation
therefor to the Tenant or any other party, and shall not be removed by the
Tenant either during or after the expiration of the term, save as hereinafter
provided. The Tenant shall not grant to any party a "security interest" as that
term is defined in the Personal Property Security Act (Alberta) in any goods
that have become affixed to the demised premises, and the Tenant shall not affix
to the demised premises any goods that are subject to a security interest. The
Tenant shall not permit any Notice claiming a security interest in any fixture
to be registered against the certificate of title to the demised premises and
shall, immediately upon demand of the Landlord, remove or cause to be removed
any such Notice and institute and diligently prosecute any proceedings pertinent
thereto.
Notwithstanding the foregoing, upon the termination of this Lease, the
Landlord may, at its option and at the expense of the Tenant, require the Tenant
to remove any such fixtures, alterations, additions, substitutions and
improvements made or installed by either the Tenant or the Landlord upon or in
the demised premises. The Tenant shall, in the case of every removal, make good
any damage caused to the demised premises in the course of such removal and any
such removal shall be completed prior to the termination of the term.
13. ASSIGNMENT AND SUBLETTING
The Tenant shall not assign the Lease or sublet the demised premises or any
portion thereof without the prior written consent of the Landlord, which consent
shall not be unreasonably withheld.
PROVIDED THAT no assignment of the Lease or sublease of the demised
premises or any portion thereof, whether with or without the consent of the
Landlord, shall in any manner relieve the Tenant of its responsibility for the
due performance and observance of the terms of this Lease, including without
limitation, the payment of rent.
PROVIDED FURTHER that any consent shall not be deemed or implied as a
consent to any further or subsequent assignment or subletting or otherwise; and
the Landlord may require the assignee or sublessee to covenant directly with the
Landlord to observe, perform and comply with the Tenant's obligations herein
contained.
PROVIDED FURTHER that the Landlord may require that this Lease be amended
to the Landlord's then current standard form lease before any such assignment,
subletting or parting with possession is consented to by the Landlord and
further, the Tenant shall pay all legal fees on a solicitor and client basis
incurred by the Landlord in any way relating to the Landlord's review of the
proposed assignment or subletting or preparation of any documents or agreements
in connection therewith.
14. INSURANCE
14.1 The Tenant shall, at its expense, maintain in respect of its property
on the demised premises fire insurance with extended coverage, water damage
insurance, plate glass insurance, and, where applicable, boiler and pressure
vessel insurance to cover all of its improvements, furniture, fittings, fixtures
and stock-in-trade in amounts adequate to cover fully any loss that the Tenant
could sustain. In addition, the Tenant shall take out business interruption
insurance which shall cover loss of all rents, including additional rent. All
policies in respect of the insurance provided for above shall be in the name of
the Landlord and the Tenant.
14.2 The Tenant shall maintain for the mutual benefit of the Landlord and
the Tenant liability insurance against claims for personal injury, death or
property damage occurring upon, in or about the demised premises, such insurance
to afford protection which at the commencement of this Lease shall not be less
than Two Million ($2,000,000.00) Dollars in respect of injury or death to a
single person and to the limit of not less than Two Million ($2,000,000.00)
Dollars in respect of any one accident and to the limit of not less than Two
Million ($2,000,000.00) Dollars in respect of property damage. The Tenant shall,
prior to possession of all or any portion of the demised premises and from time
to time thereafter as required by the Landlord, deliver to the Landlord
certificates of insurance or the original or certified copies of such insurance.
From time to time during the currency of the term, the Landlord may, as is
reasonably necessary, increase the limits hereinbefore specified by giving
notice in writing to the Tenant.
14.3 The Landlord will insure and keep insured during the term hereof the
building and all property and interest of the Landlord therein against loss
under fire and extended coverage and supplemental risk insurance and boiler and
pressure vessel insurance, to the extent as would a prudent owner in the City of
Calgary from time to time; PROVIDED THAT nothing herein contained shall prevent
the Landlord from insuring with broader coverage.
The Tenant shall, at the times and in the manner hereinbefore specified,
pay all premiums for the insurance to be placed and maintained by the Landlord.
14.4 If any insurance policy upon the building or the demised premises
shall be cancelled by the insurer by reason of the use and occupation of the
demised premises or any portion thereof by the Tenant or by any assignee or
sublessee or by anyone permitted by the Tenant to be upon the demised premises,
the Landlord may, at its option, determine this Lease by forty-eight (48) hours'
notice in writing to the Tenant of its intentions so to do and thereupon all
rents and any other payment for which the Tenant is liable under this Lease
shall be paid in full to the date of such termination of the Lease and the
Tenant shall immediately deliver up vacant possession of the demised premises to
the Landlord unless, during said forty-eight (48) hour period, the Tenant
permanently eliminates the use or occupation which was the reason for such
cancellation.
14.5 All policies required to be written on behalf of the Landlord or
Tenant pursuant to the provisions hereof shall contain a waiver of any
subrogation rights which the insurers may have against the Tenant or Landlord
respectively, their servants and agents, any persons with whom they contract
and, without limiting the generality of the foregoing, against those for whom
they are responsible in law or otherwise, whether or not the damage resulting in
a claim or under any such policy is caused by the act, omission, negligence or
gross negligence of any such protected party.
15. SIGNS
The Tenant shall have the right to erect signage on the demised premises,
subject to the prior written consent of the Landlord as to design and colour,
such consent not to be unreasonably withheld.
16. OVERLOADING
16.1 The Tenant covenants not to bring upon the demised premises or any portion
thereof any machinery, equipment, article or thing that by reason of its weight,
size or use might damage the floors, structure, electrical system, plumbing or
drainage system, heating ventilating and air conditioning system and other
services of the demised premises or any portion thereof.
16.2 If any damage is caused to the demised premises by any machinery,
equipment, article or thing, or by overloading or by any act, neglect or misuse
on the part of the Tenant or any of its servants, agents or employees or any
person having business with the Tenant, the Tenant shall forthwith repair such
damage or on demand pay the cost of repair to the Landlord.
17. INTERRUPTION OF SERVICES
The Tenant covenants and agrees that the Landlord shall not be liable for
any interruption in the supply of electricity, power, light, water, heat or any
other utility or service or the operation of any drains or lavatory, or any
other interruption of the rights and privileges hereby granted which may occur
in consequence of or by reason of any accident or casualty or any matter or
thing beyond the control of the Landlord, or in making alterations or repairs to
such service or to the building or any portion thereof howsoever the necessity
may arise, and the Tenant shall make no claim to the
Landlord with respect thereto.
18. PUBLIC LIABILITY AND PROPERTY DAMAGE
Notwithstanding anything to the contrary herein contained, the Landlord
shall not be liable nor responsible in any way for any personal or consequential
injury of any nature whatsoever that may be suffered or sustained by the Tenant
or by any servant, agent, customer, licensee or invitee of the Tenant or any
other person who may be upon the demised premises, or for any loss or damage
howsoever caused to any property belonging to the Tenant or to its servants,
agents, customers, licensees, invitees or any other person while such person or
property is on or about the demised premises.
19. DEBRIS OR REFUSE
The Tenant shall not place, leave or permit or suffer to be placed, left in
or upon any portion of the demised premises any debris or refuse, and will at
all times during the term, at its sole cost and expense, keep the demised
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 the Tenant shall cause all dirt, rubbish, garbage and other refuse or
matter on or about the demised premises to be collected and properly disposed of
in a manner satisfactory to the Landlord.
20. QUIET POSSESSION
Provided that the Tenant shall pay the minimum rent, additional rent and
all other additional charges payable hereunder at the times and in the manner
herein provided, and shall observe and fully perform each and every covenant,
agreement, term, provision and condition herein contained by the Tenant to be
observed and performed hereunder, the Tenant shall and may peaceably and quietly
possess and enjoy the demised premises during the term without any interruption
from or by the Landlord or any person lawfully claiming by, through or under it,
save and except as otherwise specifically provided for in this Lease.
21. DAMAGE AND DESTRUCTION
21.1 If, during the term, the demised premises shall be destroyed or
damaged by fire, the elements or by natural disaster or a similar cause, the
following shall apply:
a) if the demised premises shall be so badly damaged so as (in the
reasonable opinion of the Landlord) the same are unfit for occupancy and are
incapable, with reasonable diligence, of being repaired and rendered fit for
occupation within one hundred eighty (180) days from the happening of such
damage, 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 Tenant shall
immediately surrender the same and yield up possession of the demised premises
to the Landlord and the rent hereunder shall be apportioned and paid to the date
of such termination.
b) If the demised premises shall be capable (in the reasonable opinion of
the Landlord), with reasonable diligence, of being repaired and rendered fit for
occupation within one hundred eighty (180) days from the happening of such
damage, but if the damage is such as to render the demised premises wholly unfit
for occupation, then the rent hereby reserved shall not run or accrue after such
damage or while the process of repair is ongoing and the Landlord shall repair
the same with all reasonable speed and diligence and the rent shall recommence
immediately after such repairs shall be completed and the demised premises are
rendered fit for occupation. The Landlord may, at its option, instead of
repairing, rebuilding or making the demised premises fit for the purposes of the
Tenant, by notice in writing to the Tenant, forthwith determine the Lease and
the Landlord may thereupon recover the rent due and accruing due to the time of
such partial destruction and the Tenant shall immediately surrender and yield up
possession of the demised premises to the Landlord.
21.2 In none of the situations contemplated by Clause 21.01 hereof shall
the Tenant have any claim upon the Landlord for any damages sustained by the
Tenant.
22. ALTERATIONS BY LANDLORD
It is agreed that the Landlord or anyone acting with the authority of the
Landlord shall be at liberty at any time during the term to make such changes,
alterations or improvements in or to the demised premises and the fixtures and
equipment thereof as may be necessary or desirable in the opinion of the
Landlord. In carrying out such changes, alterations or improvements, the
Landlord shall attempt to minimize inconvenience and business interruption to
the Tenant but in the event of such inconvenience, business interruption or loss
suffered by the Tenant as a result of such inconvenience or business
interruption, the Landlord shall not be liable or responsible therefor.
23. POSTPONEMENT OR SUBORDINATION
The Tenant hereby agrees that its leasehold interest hereunder shall be
subordinate to any charge or any mortgage or mortgages or any charge resulting
from any other method of financing or refinancing now or hereafter in force
against the demised premises or any portion thereof and on request from the
Landlord, at any time and from time to time, the Tenant shall promptly execute
and deliver any instrument or further assurance reasonably required to postpone
and subordinate the Tenant's leasehold interest and any caveat filed with
respect thereto to the holder of such charge, mortgage or other security.
24. DEFAULT AND TERAHNATION
24.1 The Tenant covenants with the Landlord and it is a condition of the
Lease that:
a) In the event default is made in the payment of rent or other charges
required to be paid by the Tenant hereunder, or any part - thereof, and such
default continues for seven (7) days after notice of such non-payment has been
delivered to the Tenant, or
b) If the term hereby granted or any of the goods or chattels on the
demised premises are at any time repossessed, seized or taken in execution or
attachment by any creditor of the Tenant, whether under bill of sale, chattel
mortgage, debenture, conditional sales contract, lien note, lease of personal
property, consignment contract or other security agreement, and if such seizure,
execution or attachment has not been withdrawn, set aside, discharged or
abandoned within ten (10) days after the Tenant has had notice thereof, or
c) If a writ of execution or replevin order issues against the goods or
chattels of the Tenant and such writ of execution or order has not been set
aside or vacated within ten (10) days after the Tenant has had notice thereof,
or
If any application or petition or certificate or order is made or granted
for the winding-up or dissolution of the Tenant, voluntarily or otherwise, and
if such application or petition or certificate has not been set aside within ten
(10) days after the Tenant has had notice thereof, or
e) If any insurance policy insuring the building or the Tenant or tenants
of the building is cancelled or refused to be renewed by reason of the use and
occupation of the demised premises and if the Tenant fails to change its use of
the demised premises to comply with requirements of the insurers within ten (10)
days of written request of the Landlord to do so, or
f) If the Tenant, does not, within ten (10) working days after notice in
writing from the Landlord, rectify or correct any non-observance of any
covenant, provision, stipulation or condition contained in this Lease not
hereinbefore or hereinafter specifically referred to, except in the event such
rectification requires in excess of ten (10) working days in which event, if the
Tenant does not within ten (10) working days after such notice in writing
commence to rectify or correct such non-observance or non-performance and to
proceed diligently therewith,
THEN AND IN EVERY SUCH EVENT the Landlord shall be entitled to forthwith
re-enter the demised premises, and upon such re-entry, this Lease shall
thenceforth be terminated, and be of no further force and effect, and no payment
or acceptance of rent subsequent to the event of default hereinbefore in this
clause cited, shall give the Tenant the right to continued occupancy of the
demised premises, or in any way affect the rights of the Landlord herein, or
have the effect of reinstating this Lease.
24.2 NOTWITHSTANDING the obligation of the Landlord to provide the Tenant
with written notice of default prior to re-entering the demised premises for the
defaults hereinbefore referred to, the Landlord shall be entitled to forthwith
reenter the demised premises without any form of verbal or written notice of
default to the Tenant:
a) If the demised premises at any time during the term become vacant in
consequence of their abandonment by the Tenant, or the removal of the Tenant by
legal process for non-payment of rent, breach of covenant or other cause, or
b) If the Tenant ceases to conduct business from the demised premises for a
continuous period of ten (10) days, without the prior written consent of the
Landlord, or
c) If the Tenant is a corporation and if by sale or other disposition the
control of the Tenant changes at any time during the term without the prior
written consent of the Landlord, or
d) If at any time during the term, the Tenant or any other person removes
or attempts to remove, without the consent in writing of the Landlord, any goods
or chattels from the demised premises, save and except in the ordinary course of
the Tenant's business, or in the course of replacement or renovations, or
e) If the Tenant makes any assignment for the benefit of creditors, or upon
becoming bankrupt or insolvent takes the benefit of, or becomes subject to, any
statutes that may be in force relating to bankrupt or insolvent debtors, or in
the event that the demised premises are used by any other persons or for any
other purpose than as herein provided without the consent of the Landlord,
THEN AND IN EVERY SUCH EVENT at the option of the Landlord this Lease shall
thenceforth be terminated, and be of no further force and effect, and no payment
or acceptance of rent subsequent to the event of default hereinbefore referred
to shall give the Tenant the right of continued occupancy of the demised
premises, or in any way affect the rights of the Landlord herein, or have the
effect of reinstating this Lease.
NOTWITHSTANDING anything herein contained, in the event of default pursuant
to Clause 24.02(e) then, and in any such event, the then current months rent and
the next ensuing three (3) months' rent shall become due and be paid together
with all additional costs, if any, incurred by the Landlord in the preparation
of the demised premises.
24.3 If the Landlord shall terminate this Lease in the manner aforesaid, or
re-enter the demised premises, the Tenant shall pay to the Landlord upon demand
therefor:
a) All rent payable by the Tenant up to the time of re-entry or
termination, whichever shall be the later; and
b) All additional charges payable by the Tenant pursuant to the provisions
hereof until the date of re-entry or termination, whichever is later; and
c) Such expenses as the Landlord may incur or have incurred in connection
with the re-entry or terminating and re-letting, or collecting sums due or
payable by the Tenant or realizing upon the assets seized including brokerage
expenses, legal fees and disbursements determined on a solicitor and client
basis, and including the expenses of keeping the demised premises in good order
and repairing or maintaining the same or preparing the demised premises for
reletting; and
d) As liquidated damages for the loss of rental and other income of the
Landlord expected to be derived from this Lease during the period which would
have constituted the unexpired portion of the term had it not been terminated,
the amount of rent and other charges payable hereunder required to be paid by
the Tenant over the period which, but for the termination, would have
constituted the unexpired portion of the term of this Lease; PROVIDED ALWAYS
that the Landlord shall make best efforts to mitigate its loss as hereinafter
set forth.
24.4 The Tenant hereby agrees with the Landlord that notwithstanding
anything contained in any statute in force limiting or abrogating the right of
distress or in any other statute in that regard which may hereafter be passed,
none of the Tenant's goods or chattels on the demised premises at any time
during the continuance of the term or any extension or renewal thereof shall be
exempt from levy by distress for rent in arrears and that upon any claim being
made for such exemption by the Tenant or on distress being made by the Landlord,
this agreement may be pleaded as an estoppel against the Tenant in any action
brought to test the right to levying upon any such goods as are named as
exempted in any such statute, the Tenant waiving as it hereby does, all and
every benefit that could or might accrue to the Tenant and the Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of the Tenant being evicted or dispossessed
for any cause, or in the event of the Landlord obtaining possession of the
demised premises, by reason of the violation by the Tenant of any of the
covenants.
24.5. If the demised premises become vacant, abandoned or unoccupied for a
period of ten (10) days, then, in addition to any other remedies which it may
have, the Landlord (acting solely as agent of the Tenant, which agency
relationship the Tenant hereby acknowledges and ratifies), upon written notice
to the Tenant may, and on behalf of the Tenant, but shall not be obliged to,
enter the demised premises either by force or otherwise, without being liable
for prosecution thereof, and do all such things as the Landlord in its
uncontrolled discretion may consider necessary and without limiting the
generality of the foregoing, may:
a) Do all things that would in the ordinary course be done by a responsible
tenant;
b) Perform all repairs that are necessary;
c) Sub-let the demised premises or assign the Lease.
PROVIDED THAT the Tenant hereby agrees:
a) To confirm and ratify any and all acts done on its behalf hereunder by
the Landlord in respect of the demised premises;
b) Reimburse the Landlord for any and all expenses incurred by the Landlord
acting on behalf of the Tenant, including the expenses of obtaining a sublessee
or assignee; and
c) Execute all such documents and sub-leases as the Landlord considers
advisable.
Notwithstanding any terms and conditions herein the Tenant shall to the end
or sooner termination of this Lease remain bound and responsible for the terms,
covenants, conditions and reservations contained in this Lease for the remainder
of the term, including but not to be restricted to the reservation of rent,
additional rent and other charges payable hereunder.
24.6 No act or omission by the Landlord, nor any condonement, excusing or
overlooking by the Landlord of any default, breach or non-observance by the
Tenant at any time or times in respect of any covenant, proviso or condition of
the Tenant herein contained, shall operate as a precedent or as a waiver of the
Landlord's rights hereunder in respect of any subsequent default, breach or
nonobservance, nor so as to defeat or affect in any way the rights of the
Landlord in respect of any subsequent default, breach or non-observance by the
Tenant.
24.7 No reference to nor exercise of any specific right or remedy by the
Landlord shall prejudice or preclude the Landlord from exercising any other
remedy provided by this Lease allowed at law or in equity. No remedy provided to
the Landlord by this Lease or at law or in equity shall be exclusive or
dependent upon any other such remedies, and the Landlord may, from time to time,
exercise any one or more of such remedies independently or in combination.
24.8 If the Landlord at any time incurs legal fees in instituting or
prosecuting any action or proceedings or engaging a solicitor based upon or as a
result of any default by the Tenant under this Lease, all such fees and costs,
on a solicitor and client basis, shall be payable by the Tenant to the Landlord
upon demand therefor and all such legal fees and costs shall be deemed
additional rent and recoverable as such. This clause shall survive the
expiration of the term or the earlier determination of the Lease and shall apply
to any overholding of the demised premises by the Tenant beyond the expiration
of the term.
-25. EXPROPRIATION
25.1 If during the term or any extension or renewal of this Lease, the
whole of the demised premises or any part thereof, to the extent that the
remainder is not sufficient in size to allow the Tenant in the reasonable
opinion of the Landlord to efficiently carry on the Tenant's normal business
operations, shall be taken or expropriated by any public authority under the
power of eminent domain, then the obligation of the Tenant for the payment of
rent and other monies beyond the date of vesting of title to the demised
premises in the public authority or the date upon which the public authority
shall have the right to the possession of the demised premises, whichever shall
be the earlier, (hereinafter called the "condemnation date"), shall cease and
determine and following the due settlement by the expropriating parties of such
award or awards as may be payable as a result of such expropriation, this Lease
and all right, title and interest of the Tenant hereunder shall cease and
terminate, effective as of the condemnation date. However, if during the term of
the Lease a part of the demised premises shall be taken or expropriated by any
public authority under power of eminent domain and the remainder of the demised
premises is sufficient in size to allow the Tenant in the reasonable opinion of
the Landlord to efficiently carry on its normal business operations, this Lease
shall continue in full force and effect, save and except the Tenant shall be
liable for rent and additional rent in respect of the portion of the demised
premises so taken only to the condemnation date and thereafter, the rent and
other charges payable hereunder shall be reduced in the proportion that the area
of the demised premises taken bears to the total area of the demised premises.
25.2 All compensation and damages with respect to the taking of the demised
premises awarded by the expropriating public authority or by any board having
jurisdiction to settle such matter shall be received according to the provisions
of the Expropriation Act of the Province of Alberta as in force at the
condemnation date.
26. SALE AND RENT SIGNS
The Tenant agrees that the Landlord shall have the right within ninety (90)
days prior to the termination of this Lease, to place upon the demised premises
a notice of reasonable dimension and reasonably placed so as not to interfere
with the business of the Tenant, stating that the demised premises are for sale
or rent and the Tenant undertakes to maintain the said sign in the said location
to the date it returns possession of the demised premises to the Landlord. The
Tenant will at all reasonable hours permit the Landlord or its agent to exhibit
the demised premises to any prospective purchaser, tenant or encumbrancer.
27. OVERHOLDING
If the Tenant shall hold over after the expiration of the ten-n and the
Landlord accepts payment of rent, the Tenant shall be deemed to occupy the
demised premises as a month to month tenant at a monthly rental equivalent to
the minimum rent, additional rent and any other monies payable hereunder during
the month immediately prior to the expiration of the term.
28. NOTICE
28.1 Any notices herein provided or permitted to be given by the Tenant to
the Landlord shall be sufficiently given if mailed by registered mail, postage
prepaid, addressed to the Landlord at:
ARCURI HOLDINGS
244 Country Hills Court N.W.
Calgary, Alberta
T3K 3Y9
28.2 Any notices herein provided or permitted to be given by the Landlord
to the Tenant shall be sufficiently given if
a) A written or printed copy of such notice is delivered to the Tenant at
the demised premises or posted upon the door of the demised premises; or
b) A written or printed copy of such notice is mailed by prepaid registered
mail addressed to the Tenant at:
Bay 8, 3927 Edmonton Trail N.E.
Calgary, Alberta
T2E 6TI
28.3 Except during periods of disruption in the normal postal service, all
notices given as aforesaid shall be conclusively deemed to have been given, and
received by the party to whom such notice was directed, on the second business
day following the date on which such notice was mailed as foresaid, or on the
date on which such notice is delivered, posted or affixed as aforesaid. In the
event of disruption of normal postal service, notice to the Landlord shall be
personally served upon the Landlord and notice to the Tenant shall be given as
prescribed in Clause 28.02(a) and shall be effective on the date on which notice
is so given.
28.4 Either party hereto may at any time in the manner provided above give
notice in writing to the other of any change of address of the party giving such
notice and from and after the giving of such notice the address therein
specified shall be deemed to be the address of such party for the giving of
notices hereunder.
29. ENTIRE AGREEMENT
This Lease contains the entire agreement between the Landlord and the
Tenant and the Tenant acknowledges that it shall be forever estopped from
asserting that there is any condition precedent or warranty of any nature or
collateral warranty or covenant whatsoever to the within Lease other than
expressed herein. Furthermore, it is agreed that this Agreement supersedes any
previous agreement(s) between the Landlord, its predecessor in title, the Tenant
or any affiliated corporation of the Tenant.
30. PARTIAL INVALIDITY
If for any reason whatsoever any term, covenant, proviso or condition of
this Lease, or the application thereof to any person 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 Lease and to
be severable and divisible therefrom and its invalidity, unenforceability or
illegality shall not affect, impair or invalidate the remainder of this Lease or
any part thereof; and
b) Continues to be applicable to and enforceable to the fullest extent
permitted by law against any person or circumstance other than those as to which
it has been held or rendered invalid, unenforceable or illegal.
31. ENVIRONMENTAL
31.1 The Tenant covenants with the Landlord to notify the Landlord at once
in the event that any toxic or hazardous substances (the "contaminants"), are
produced on, brought onto or stockpiled on the lands, and to enter into a
contract with a properly authorized disposal authority (which contract must have
the prior approval of the Landlord) for the neutralizing or disposal of such
contaminants, and the Tenant shall leave the lands at the termination of this
Lease, by whatever cause, free from all pollution by such contaminants.
31.2 The Tenant shall indemnify and hold harmless the Landlord from all
liability from whatever source, for pollution from any cause whatsoever to or
escaping from the lands and this indemnity shall survive the termination of this
Lease.
31.3 The Tenant shall permit the Landlord to inspect the demised premises
and the lands at all times with such experts and technical personnel as the
Landlord deems necessary, to oversee the production, storage, stockpiling and
disposal of any substances deemed toxic or hazardous by the Landlord liable to
cause pollution within or without the lands and demised premises and to confirm
that the lands and demised premises are free of all contaminants at the
termination for whatever cause of this Lease.
31.4 The Tenant shall, when required to do so by notice in writing from the
Landlord, obtain insurance coverage with an insurance company and in the amounts
and on terms having the prior approval of the Landlord, sufficient to protect
the Landlord from all liability in respect of pollution arising from the
activities of the Tenant on the lands and demised premises.
32. ENUREMENT
This Lease shall be binding upon the parties hereto, the successors and
assigns of the Landlord and the successors and permitted assigns of the Tenant.
33. GOVERNING LAW
This Lease shall be construed and governed by the laws of the Province of
Alberta.
34. TIME IS OF THE ESSENCE
Time shall be of the essence of this Lease.
IN WITNESS WHEREOF the parties hereto have executed this Lease by affixing
their corporate seals by their authorized officers in that behalf as of the day
and year first above written.
ARCURI HOLDINGS
/S/ Arcuri Holdings
Per:
Per:
WITNESS:
CAL-ALTA AUTO GLASS LTD.
/S/ Cal Alta Auto Glass, Ltd.
Per:
Per:
WITNESS:
Addendum dated April 28, 1999
to Lease dated April 1, 1997
BETWEEN:
ARCURI HOLDINGS
a body corporate with an office in the
City of Calgary, in the Province of Alberta
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
CAL-ALTA AUTO GLASS LTD.
a body corporate with an office in the
City of Calgary, in the Province of Alberta
(hereinafter called the "Tenant")
OF THE SECOND PART
Item 35. OPTION TO RENEW
35.01 The Tenant shall have the option to renew the term of this lease for
one (1) further term of Five (5) years, on March 31, 2002, upon the same terms
and conditions contained in the lease save and except the rental rate and this
option to renew and Clause 3.1.2 of this lease. The rental rate in such renewed
term shall be determined by the Landlord. IN WITNESS WBEREOF the parties hereto
have executed this Lease by affixing their corporate seals by their authorized
officers in that behalf as of the day and year first above written.
ARCURI HOLDINGS CAL-ALTA AUTO GLASS LTD.
/S/ Arcuri Holdings Cal Alta Auto Glass, Ltd.
Per.: Per:
