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THIS LEASE made as of the 25th day of May, 1999.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT.
BETWEEN:
XXXXXXXX XXXXXXXXX and XXXX XXXXXXX
T & R CONSTRUCTION AND MANAGEMENT INC.
(hereinafter referred to as the "Landlord")
OF THE FIRST PART;
- and -
TRANSCONTINENTAL GOURMET FOODS INC
a company incorporated pursuant to the laws of the Province of Ontario
(hereinafter referred to as the "Tenant")
OF THE SECOND PART.
WHEREAS the Landlord (by its management company) and the Tenant have
agreed, pursuant to an Offer to Lease dated May 25, 1999, that the Landlord
would lease unto the Tenant and that the Tenant would lease from the Landlord
the building of the demised premises municipally known as 000 Xxxxx Xxxx in the
municipality of Concord having an area of 39,008 square feet on the terms and
conditions contained in the said Offer to Lease;
IN CONSIDERATION of the rents hereby reserved and the covenants
herein contained, the Landlord and the Tenant hereby covenant and agree as
follows:
1. DEMISE OF LEASED PREMISES AND TERM
The Landlord hereby demises and leases unto the Tenant those lands
and premises situate in the building (the "Building") municipally known as 000
Xxxxx Xxxx in the Municipality of Concord in the Province of Ontario and being
94% of the entire building (the "Leased Premises") as more particularly shown
outlined in red on Schedule "A" attached hereto, for and during a fixed term
that shall be completed and ended on the 31st day of December, 2002 (the
"Term").
2. RENTABLE AREA AND PROPORTIONATE SHARE
THE LANDLORD AND TENANT HEREBY ACKNOWLEDGE AND AGREE that, for the
purposes of all financial calculations herein, the rental floor area of the
Leased Premises shall be deemed to be 39,008 square feet, comprised of Unit One
consisting of 8190 square feet, Unit Two comprised of 10,164 square feet, Unit
Three consisting of 10,490 square feet, and Unit Four consisting of 10,164
square feet.
3. BASE RENT
DURING THE TERM, THE TENANT COVENANTS AND AGREES TO PAY NET RENT TO
THE LANDLORD (hereinafter referred to as "Base Rent") in advance on the first
day of each and every month of each and every year of the Term as follows:
(a) during the rental year commencing on the 1st day of January, 2000
and ending on the last day of December, 2000, the Tenant shall pay
Base Rent in the amount of ONE HUNDRED EIGHTY NINE THOUSAND ONE
HUNDRED EIGHTY EIGHT DOLLARS AND EIGHTY CENTS ($189,188.80) in equal
consecutive monthly installments of FIFTEEN THOUSAND SEVEN HUNDRED
SIXTY
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FIVE DOLLARS AND SEVENTY THREE CENTS ($15,765.73) representing a
rental rate of $4.85 per square foot per annum;
(b) during the rental year commencing on the 1st day of January, 2001
and ending on the last day of December, 2001, the Tenant shall pay
Base Rent in the amount of ONE HUNDRED NINETY SIX THOUSAND NINE
HUNDRED NINETY DOLLARS AND FORTY CENTS ($196,990.40) in equal
consecutive monthly instalments of SIXTEEN THOUSAND FOUR HUNDRED
FIFTEEN DOLLARS AND EIGHTY SEVEN CENTS ($ 16,415.87) representing a
rental rate of $5.05 per square foot per annum;
(c) during the rental year commencing on the 1st day of January, 2002
and ending on the last day of December, 2002, the Tenant shall pay
Base Rent in the amount of TWO HUNDRED TWO THOUSAND EIGHT HUNDRED
FORTY ONE DOLLARS AND SIXTY CENTS ($ 202,841.60) in equal
consecutive monthly instalments of SIXTEEN THOUSAND NINE HUNDRED
THREE DOLLARS AND FORTY SEVEN CENTS ($ 16,903.47) representing a
rental rate of $5.20 per square foot per annum;
Upon the request of the Landlord, the Tenant shall present to the
Landlord on or before the commencement of each rental year of the Term, a series
of monthly post-dated cheques for each such year of the Term comprising the sum
of the monthly Base Rent and such taxes and other payments of Additional Rent as
may be estimated by the Landlord in advance.
4. ADDITIONAL RENT
The Tenant acknowledges and agrees that the payment of Base Rent as
herein provided shall be net to the Landlord and that the Tenant shall be
responsible for payment of all charges, levies, taxes and expenses whatsoever
and howsoever pertaining to the Leased Premises, save and except for matters
which are the Landlords' responsibility under the terms of this lease and save
and except only items of a nature personal to the Landlord such as the income
and capital taxes of the Landlord. Any and all sums of money or charges required
to be paid by the Tenant under this Lease (except Base Rent) shall be deemed to
be "Additional Rent", whether or not the same are designated as Additional Rent
hereunder, and whether or not the same are paid to the Landlord or otherwise,
and all such sums are to be payable in lawful money of Canada without any
deduction, set-off or abatement whatsoever. Additional Rent may be estimated by
the Landlord from time to time and such estimated amount is payable by the
Tenant in monthly instalments in advance with annual adjustments, if necessary,
and all Additional Rent shall be deemed to be accruing due on a day to day
basis. (Base Rent and Additional Rent shall hereinafter collectively be referred
to as "Rent").
5. SECURITY DEPOSIT
The Landlord acknowledges that it has received from the Tenant of
the sum $0. The Landlord agrees that the sum of $0 is to be applied against Rent
(including GST) for the first, month of the Term with the balance, being
$11,082.74 (the "Security Deposit") to be held by the Landlord, without
liability for interest, as security for the faithful and complete performance by
the Tenant of all the terms, covenants and obligations under this Lease by the
Tenant to be kept, observed and performed during the Term and any renewal
thereof. The Landlord agrees to return the Security Deposit to the Tenant
following expiry of the Term, provided the Tenant is not in default of any of
its obligations herein. If at any time during the Term, Rent or any other sums
payable by the Tenant hereunder are overdue and unpaid, or if the Tenant fails
to keep or perform any of the terms, covenants and conditions of this Lease to
be kept, observed and performed by the Tenant, then the Landlord, at its option,
may appropriate and apply the Security Deposit, or part thereof, as compensation
to the Landlord for costs, expenses or fees incurred by the Landlord due to such
breach by the Tenant. If the Security Deposit, or any portion of it, is
appropriated or applied by the Landlord hereunder, then the Tenant shall, upon
demand by the Landlord, forthwith remit to the Landlord a sufficient amount
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in cash to restore the Security Deposit to the original sum herein, and the
Tenant's failure to do so within five (5) days after receipt of such demand
shall constitute a breach of this Lease.
6. LANDLORD'S COVENANTS
THE LANDLORD COVENANTS AND AGREES with the Tenant as follows:
(a) That if the Tenants pays Rent and performs all of its obligations under
this Lease, the Tenant shall be entitled to peaceable and quiet enjoyment
of the Leased Premises;
(b) The Landlord has the full right, power and authority to lease the Leased
Premises in accordance with the terms and conditions herein contained;
(c) The Landlord consents to give Transcontinental Gourmet Foods the first
right of refusal for the space in Unit # 1 currently occupied by Xxx
Enterprises.
7. TENANT'S COVENANTS
THE TENANT COVENANTS AND AGREES with the Landlord as follows:
(a) To pay Rent without deduction, set off or abatement to the Landlord
to such place as the Landlord may from time to time designate;
(b) To pay to the Landlord, as Additional Rent, any and all goods and
services taxes, sales taxes and any other like taxes, whether
existing or imposed at a later date ("Sales Taxes") that may be
eligible, levied or assessed in respect of the Leased Premises, the
payment of Additional Rent or any other supply of goods or services
to the Leased Premises;
(c) To pay, as Additional Rent, in each and every year during the Term,
directly to the Landlord or to the taxing authority as the Landlord
may direct from time to time all real property taxes (including
penalties for non-payment by the Tenant thereof), local improvement
rates, provided that, in the case of local improvement rates which
may by law be payable in installments, the Tenant is only obligated
to pay such installments as fall due or would fall due during the
term, business assessment taxes, impost charges, levies, rates,
duties and assessments of any nature or kind whether special or
general that may be levied, rated, charged or assessed against the
Leased Premises or any part thereof, from time to time by any taxing
authority, whether federal, provincial, municipal, school or
otherwise, and including, but without limitation, any such taxes
payable by the Landlord which are imposed in lieu of or in addition
to or as a substitute for such real property taxes or on account of
the Landlord's ownership of the Leased Premises, whether of the
foregoing character and whether or not same existed at the
commencement of the Term (hereinafter referred to as the "Real
Property Taxes"); provided that if the Leased Premises are not
assessed separately from the remainder of the Building, the Tenant's
Proportionate Share of Real Property Taxes shall be determined by
the Landlord acting reasonably and the Tenant shall be responsible
for prompt payment of Real Property Taxes in accordance with said
determination;
(d) To furnish to the Landlord all tax bills, assessments or other
notices pertaining to the Leased Premises or the Building forthwith
upon receipt of same by the Tenant;
(e) To pay, as Additional Rent, from time to time as and when determined
by the Landlord, its Proportionate Share of Real Property Taxes,
utilities, maintenance, landscaping, snow clearing or other charges
pertaining to the common areas of
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the Building and any part of the lands upon which the Building is
situate that are not leased exclusively to any other tenant of the
Building;
(f) To pay throughout the Term all utility and other charges relating to
the Leased Premises including, without limitation, all charges in
connection with heating, water, electrical current, gas and any
other public or private utilities or services, and including any
fees or rental charges for equipment, meters, apparatus, water
heaters or other things leased in respect thereof, and for all work,
services or installations performed by any corporation or commission
in connection with any public utilities that may be supplied at any
time to the Leased Premises;
(g) To operate, maintain, paint and keep the Leased Premises and every
part thereof including, but not limited to, the washrooms, plumbing,
heating, ventilating and air conditioning equipment and any and all
other appurtenances thereon in good and substantial repair and
condition throughout the Term as they would be kept by a prudent and
careful owner, excepting only major repairs to or replacements of
heating and mechanical equipment unless such repairs or replacements
were caused the acts, negligence or omissions of the Tenant;
(h) To diligently and thoroughly carry out any and all necessary repairs
and replacements to the Leased Premises and every part thereof as
would a prudent and careful owner, excepting only structural
maintenance and repairs to the roof of the Building, unless such
repair or replacement is caused by the acts, negligence or omissions
of the Tenant;
(i) To promptly comply with and conform to the requirements of all
applicable statutes, laws, by-laws, regulations, ordinances and
orders from time to time or at any time in force during the Term and
affecting the condition, maintenance, use or occupation of the
Leased Premises or equipment situate thereon and with every
applicable regulation, order and requirement of the Insurance
Advisory Organization of Canada, or any body having a similar
function or of any liability or fire insurance company by which the
Landlord and Tenant or either of them may be insured at any time
during the Term;
(j) In the event of the observance of any apparent structural defect or
other damage to the Leased Premises or the Building by any cause, to
give notice in writing to the Landlord of such defect or damage
forthwith upon the same becoming known to the Tenant;
(k) To permit the Landlord to enter upon and view the state of repair
and maintenance of the Leased Premises and to immediately furnish
the Landlord with a key, and any replacement or replacements
thereof, for entry to the Leased Premises;
(l) That upon the expiration or earlier determination of the Term, the
Tenant shall peaceably surrender and deliver up the Leased Premises
in a broom-swept condition and free and clear of all waste,
materials, debris and rubbish, together with any appurtenances,
erections or improvements made therein or thereon in a good state of
repair and maintenance consistent with a first class industrial
building, (the condition of the Leased Premises at the commencement
of occupancy by the Tenant being accepted by both parties as
standard first class commercial), save and except reasonable wear
and tear only, and matters which are the Landlord's responsibility
pursuant to the Tenant shall surrender and deliver to the Landlord
all keys to the Leased Premises;
(m) To keep all sidewalks, entrance ways, exits, steps and platforms
leading to and from the Leased Premises free and clear of all snow,
ice and debris;
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(n) That the Leased Premises shall be used exclusively by the Tenant
throughout the Term and only for the following purposes: manufacture
frozen foods and general offices;
(o) That the Tenant will not carry on, or permit or acquiesce in the
carrying on of, in or about the Leased Premises any illegal or
improper business activity or any activity which shall, in the
reasonable opinion of the Landlord, be deemed to be a nuisance to
any other person or business;
(p) To assume the sole responsibility and cost of heating and cooling of
the Leased Premises with the heating, ventilating and air
conditioning equipment, if any, supplied by the Landlord;
(q) That the Tenant will not assign, sublet or part with possession of
the Leased Premises, or any part thereof, or share the occupation of
the Leased Premises, or any part thereof, without the consent of the
Landlord in writing being first obtained, which consent is not to be
unreasonably or arbitrarily withheld;
(r) That the Tenant will not place anything on the roof or in any way
make any opening in the roof for stacks or other purposes, or in any
way alter the interior or exterior walls or structure of the
Building or the Leased Premises without the prior written consent of
the Landlord;
(s) That all loading and unloading of merchandise, supplies, materials,
chattels, equipment, garbage and refuse, with the exception of the
Tenant's general office supplies, shall be made only through or by
means of the shipping doors so designated by the Landlord;
(t) To notify the Landlord forthwith of any change in the effective
management or control of the Tenant, shall be deemed to be
assignment within the meaning of paragraph 7(r) of this Lease and
shall require the prior written consent of the Landlord in the same
manner as any assignment or subletting;
(u) Not to allow any ashes, refuse, waste material, debris, garbage or
other loose or objectionable material to remain or accumulate on or
about the Leased Premises or the Building and not to use any outside
garbage or other containers unless first approved by the Landlord,
which shall not be unreasonably withheld.
(v) That it will not install any signs or advertising material upon the
Leased Premises without the prior written consent of the Landlord
and in strict conformity with municipal and local by-laws; provided
that the Tenant shall remove all such signs (which shall remain the
property of the Tenant throughout the Term) and repair any and all
damage caused thereby on or before the expiry of the Term;
(w) That the Landlord shall have the right at any time during the Term
to place upon the Leased Premises a notice of reasonable dimensions,
and reasonably placed so as not to interfere with the Tenant's
business, stating that the Leased Premises are for sale, and at any
time during the last six (6) months of the Term that the Leased
Premises are to let and the Tenant shall not remove such notices, or
permit the same to be removed;
(x) That the Tenant shall not abandon or vacate the Leased Premises
prior to the expiration of the Term for a period of over ten (10)
business days;
(y) Not to permit any lien or encumbrance to be registered on or against
title to the lands comprising the Leased Premises (except as
contemplated in Section 6).
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8. NON-PAYMENT OR NON-PERFORMANCE BY TENANT
IN THE EVENT that the Tenant shall make default in the payment of
any moneys or charges required to be paid by it and such default shall continue
for 7 days after notice that is given to the Tenant or shall make default in the
performance of any covenant or the doing of any thing required to be performed
or done by it hereunder, and such default shall continue for 15 days (or such
longer period as is reasonable to remedy same) after notice thereof is given to
the Tenant, then the Landlord shall have the right to pay any such sum so in
default or to perform or do any such thing and such sums so paid or the costs of
performing or doing such things shall in every such case be deemed to be
Additional Rent and shall be payable by the Tenant in accordance with the
provisions of this Lease. The Landlord shall be entitled to charge all such
moneys or charges to the Tenant together with an administrative and managerial
fee of fifteen (15%) of the said payment and the Tenant shall pay such charges
forthwith on demand, and the Landlord, in addition to any other rights or
remedies available to it, shall have the same remedies and may take the same
steps for the recovery of all such moneys or charges as it might have taken for
the recovery of Rent in arrears under the terms of this Lease. Any and all
arrears of Rent shall bear interest at the rate of fifteen (15%) per cent per
annum, calculated monthly, from the time such arrears were due and payable until
full payment is received by the Landlord.
9. TENANT'S OPTION TO RENEW
If the Tenant has not been in default of any obligation or covenant
herein, then the Tenant shall have the option to renew the term of the within
Lease for one renewal period of five (5) years, subject to the following terms
and conditions:
(z) The Tenant shall give the Landlord written notice of its intention
to exercise this option at least six (6) months, but not more than
twelve (12) months, prior to expiry of the Term;
(aa) The tenancy of the Tenant in the Leased Premises shall be on the
same terms and conditions as are set out herein except that there
shall be no further option to renew and except that the Base Rent
for the renewal period shall be negotiated and agreed to by the
Landlord and the Tenant no later than three (3) months prior to the
commencement of the applicable renewal period and shall be based on
the fair market rental rate at the time of expiry of the Term for
premises similar to the Leased Premises in the immediate vicinity of
the Leased Premises; and
(bb) In the event the Tenant and the Landlord cannot agree upon the Base
Rent for the aforesaid renewal period, the matter shall be referred
to arbitration to be resolved in accordance with the provisions of
this Lease.
[Reference to "Term" in this Lease shall include the renewal period, if
applicable and if the context reasonably permits.]
10. INSURANCE
The Tenant covenants and agrees to obtain and maintain, at its sole
cost and expense, and to keep in full force and effect during the Term such
insurance as may be requested by the Landlord, which insurance coverage shall,
without limitation, include the following:
(cc) All risk, replacement cost and stated amount insurance for the full
reconstruction value of the Leased Premises and all Tenant's
improvements, equipment and other property on or about the Leased
Premises and including loss of rental income insurance;
(dd) Broad form comprehensive boiler and machinery insurance on all
insurable objects located on the Leased Premises in amounts
reasonably satisfactory to the Landlord;
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(ee) Plate Glass insurance;
(ff) Liability insurance of not less than $2,000,000.00 inclusive of all
injuries or death to persons and damage to property of others
arising from any one occurrence.
All such insurance policies shall name the Landlord as additional
insured as its interest may appear and shall waive recourse and any other rights
of subrogation against the Landlord, its officers, directors, employees and
agents and shall be on terms and conditions and with insurers satisfactory to
the Landlord.
The Tenant covenants and agrees to deliver full copies of any
proposed insurance policies to the Landlord for the Landlord's prior approval.
If the Landlord approves of such insurance policy, then no policy shall be
canceled or its coverage reduced without ten (10) days prior written notice to
the Landlord. The Tenant covenants and agrees to maintain all such insurance in
good standing at all times and to pay premiums thereon as and when same become
due. The Landlord shall at all times be supplied with proper evidence of such
insurance being in force and if the Tenant shall fail to make payments on any
such premium as and when the same becomes due or fails to promptly furnish to
the Landlord satisfactory evidence of such insurance or the renewal thereof
prior to its expiration, then the Landlord shall be entitled to effect such
insurance and any premium paid by the Landlord shall be recoverable from the
Tenant upon demand in the same manner as herein provided for collection of Rent
in arrears.
The Tenant shall not do or permit to be done any act or thing
whereby the insurance coverages in respect of the Leased Premises, may be
increased in premium or cancelled by the insurer, or the Leased Premises shall
be rendered uninsurable, and if by reason of any act done or permitted or any
omission, as the case may be, by the Tenant, or its agents or employees, the
said insurance coverage, or any of them, shall be increased in premium, then the
Tenant shall be liable to pay all of such increase in premium with respect to
the entire coverages and this notwithstanding that the Tenant occupies only a
portion of the Building or premises covered by such insurance coverages. If the
Leased Premises shall be rendered uninsurable or if the said insurance coverages
or any of them shall be cancelled by reason of any act done or permitted, or any
omission, as the case may be, by the Tenant, then the Landlord after giving the
Tenant three (3) days notice within which to place the required insurance
coverage or coverages shall, at its absolute discretion, have the right
terminate this Lease.
11. ALTERATIONS AND FIXTURES
(gg) The Tenant may from time to time, at its expense, paint or decorate
the Leased Premises and appurtenances thereof, or make such changes,
alterations or improvements or add such trade fixtures as will, in
the judgement of the Tenant, better adapt the Leased Premises for
its business provided that all such changes, alterations,
improvements or works comply with all statutes, regulations or
by-laws of any municipal, provincial or other authority and further
provided that any changes, alterations, improvements or works to the
interior or exterior walls, landscaping, paving, roof, stairwells or
other structures situate in or on the Leased Premises shall not be
made unless the written consent of the Landlord thereto shall have
been first obtained and such consent shall not be reasonably
withheld.
(hh) Upon the termination of this Lease, all alterations, fixtures,
additions and improvements other than the Tenants equipment,
(freezers) which may be made or installed upon the Leased Premises
and which in any manner are attached to the floors, walls and
ceilings of the Building or any other part of the Leased Premises,
shall, at the option of the Landlord, remain upon and be surrendered
with the Leased Premises as a part thereof, without disturbance,
molestation or injury. If any additional or new locks are placed
upon or affixed to the Leased Premises, such locks and keys shall be
handed over to the Landlord upon the termination or surrender of
this Lease. Provided further that the Landlord may, at its option,
require the Tenant to restore the Leased Premises to the same
condition
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as it was in at the commencement of this Lease and before any
alterations, additions, or improvements had been made to the Leased
Premises by the Tenant, reasonable wear and tear excepted.
(ii) The Tenant shall not during the Term or upon termination of this
Lease remove or carry away from the Leased Premises any fixtures,
structures, equipment or part thereof or any plumbing, heating,
ventilating, lighting equipment, wiring or electric panels and
services, or other building services without the written consent of
the Landlord being first obtained.
12. ENVIRONMENTAL INSPECTION
(ii) In this Lease:
(i) "Environmental Inspection" shall mean a partial or complete
inspection and audit of the Leased Premises and the
environmental practices of the Tenant thereon by the Landlord,
its employees or agents and shall include such visual
inspections, soil, air and other tests as the Landlord shall
reasonably believe to be necessary;
(ii) "Hazardous Substance" shall mean any substance that requires
special precautions in its storage, collection,
transportation, treatment or disposal to prevent damage to
persons or property and includes explosive, flammable,
volatile, radio-active, toxic and pathological waste.
(kk) The Landlord shall have the right to conduct an Environmental
Inspection of the Leased Premises at any time and from time to time
throughout the Term. In the event that the Environmental Inspection
reveals that the Tenant is storing, handling, transporting,
manufacturing, processing or otherwise dealing with (hereinafter
collectively "handling") any Hazardous Substance in a manner
unsatisfactory to the Landlord, the Landlord shall give the Tenant
fifteen (15) days within which to amend its manner of handling such
Hazardous Substance to comply with effective environmental
protection practices and the manner in which the Landlord indicates
such substances must be handled. The Tenant shall further forthwith
carry out such procedures as are, in the sole opinion of the
Landlord, necessary to correct any damage which may have been done
to the Leased Premises or any other property of the Landlord.
(ll) In the event that the Tenant shall be in default of the provisions
hereof or commit any breach of environmental legislation and shall
fail to amend its practices or take such corrective measures as are
required hereunder, the Landlord shall have the right to enter upon
the Leased Premises and carry out such procedures as are, in the
sole opinion of the Landlord, necessary to correct any damage which
may have been done to the Leased Premises or any other property of
the Landlord and to forestall any potential damage which in the
opinion of the Landlord may be created by the unsatisfactory
handling of Hazardous Substances and, in addition to and without
limiting any other remedies available to the Landlord, the Landlord
may, on seven (7) days notice to the Tenant, terminate the Lease.
The Tenant shall pay to the Landlord as additional rent, forthwith
upon demand, the costs of any Environmental Inspection conducted by
the Landlord together with the costs, if any, to carry out such
procedures required to correct any environmental damage or to
forestall any potential damage due to the unsatisfactory handling of
Hazardous Substances by the Tenant.
13. DEFAULTS AND REMEDIES
(mm) PROVISO for re-entry by the Landlord on non-payment of Rent or
non-performance of covenants. The Tenant and Landlord hereby agree
that, subject to
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the covenants of the Landlord contained in Article 6 of this Lease,
if and whenever Rent, or any part thereof, shall be unpaid on the
date upon which the same ought to have been paid by the Tenant,
after at least 7 days notice has been made therefor, or in the case
of a Breach therefor, or in the case of the breach or
non-performance of any of the other covenants or agreements herein
contained on the part of the Tenant provided in such case formal
written demand by the Landlord has been made and the Tenant has
failed to properly cure such damage or default within fifteen (15)
days of notice being given in accordance with the terms of this
Lease, then and in either of such cases it shall be lawful for the
Landlord at any time thereafter, at the option of the Landlord, to
enter into and upon the Leased Premises or any part thereof in the
name of the whole and have again, repossess and enjoy the same as of
its former estate and terminate this Lease or itself take steps to
do or cause to be done such things as may be necessary to remedy and
correct such defaults and charge same to the account of the Tenant
as Rent. Provided further that in the event that the Landlord shall
elect to make a re-entry as hereinbefore provided, any re-entry or
other action so taken shall not be deemed to relieve the Tenant of
its obligations to pay Rent and any other moneys payable hereunder
which obligations of the Tenant shall continue to accrue and be
payable until such time as the Landlord is able to re-let or
otherwise deal with the Leased Premises in such manner that it does
not sustain any loss should the Tenant thereafter fail to pay the
Rent and other moneys payable as Rent or otherwise under this Lease.
Provided further that in addition to all other rights hereby
reserved to it, the Landlord shall have the right and authority to
re-enter the Leased Premises as the agent of the Tenant either by
force or otherwise, and to re-let the whole or any portion of the
Leased Premises for any period equal to or greater or less than the
remainder of the Term and to receive the rent therefor, said rent to
be any sum which it may deem reasonable, to any tenant which it may
deem suitable and satisfactory, and for any use and purpose which it
may deem appropriate and in connection with any such lease, the
Landlord may make such changes in the character of the improvements
of the Leased Premises as the Landlord may determine to be
appropriate or helpful in effecting such lease, and the Tenant shall
remain liable to the Landlord for any deficiencies, damages,
expenses or losses incurred by the Landlord in respect of Rent
payable hereunder, it being the intention hereof that nothing herein
contained and no distress or entry made by the Landlord hereunder
shall in any way release the Tenant from the payment of the Rent
hereby reserved during the Term and provided that the Landlord shall
not in any event be required to pay to the Tenant any surplus of any
sums received by the Landlord on a re-letting of the Leased Premises
in excess of the Rent reserved hereunder.
(nn) If the Term hereby granted or any of the goods and chattels of the
Tenant shall be at any time seized or taken in execution or in
attachment by any creditor of the Tenant or if a writ of execution
shall issue against the goods or chattels of the Tenant or if the
Tenant shall make any assignment for the benefit of creditors or
commit any other act of bankruptcy as defined in the Bankruptcy Act
of Canada or any amendment thereto, or become a bankrupt or
insolvent or take the benefit of any legislation which may be in
force for bankrupt or insolvent debtors, or shall attempt to abandon
the Leased Premises or to sell or dispose of its goods or chattels
so that there would not, in the event of such sale or disposal be,
in the opinion of the Landlord, a sufficient distress on the Leased
Premises for the then accruing Rent, and moneys accruing hereunder
as Rent, then the Security Deposit provided hereunder shall be
forfeited and the current month's Rent together with Rent for the
three months next ensuing (and for purposes hereof Rent shall
include additional rent and all moneys to be paid by the Tenant
under the terms of this Lease) and the Term shall, at the option of
the Landlord, forthwith become forfeited and determined, in which
event the Landlord may re-enter and take possession of the Leased
Premises as though the Tenant, or any occupant or occupants of the
Leased Premises, was or were holding over after the expiration
10
10
of the Term without any right whatsoever, provided that no action by
the Landlord in so doing shall be deemed to relieve the Tenant of
its obligations for the payment of Rent or any other moneys payable
hereunder.
(oo) In the event the Tenant removes any of its goods or chattels from
the Leased Premises outside of Tenant's ordinary course of business,
the Landlord may follow the same for thirty (30) days, in the same
manner as is provided for in the Landlord and Tenant Act with
respect to the fraudulent removal of goods and, notwithstanding
anything contained in the Landlord and Tenant Act or any other
legislation, none of the goods or chattels of the Tenant at any time
during the continuance of the Term situate on the Leased Premises
shall be exempt from levy by distress for Rent in arrears, and that
upon any claim being made for any exemption by the Tenant on a
distress made by the Landlord this covenant may be pleaded as an
estoppel against the Tenant in any action brought to test the right
to the levying upon any such goods, the Tenant waiving as it hereby
does any exemptions from distress which might have accrued to the
Tenant under the provisions of the Landlord and Tenant Act.
14. OVER HOLDING
In the event that the Tenant remains in possession of all or part of
the Leased Premises after the termination of the Term without entering into any
other special agreement with the Landlord, then the Tenant shall be deemed to be
a monthly tenant at a monthly Base Rent equal to double the Base Rent payable
during the last month of the Term, which Base Rent shall be payable together
with Additional Rent on the first day of each and every month that the Tenant
remains in possession of all or part of the Leased Premises and the Tenant
agrees in all other respects to comply with the Terms of this Lease, including
those provisions requiring performance of covenants by the Tenant and payment of
Additional Rent.
15. DESTRUCTION
It is expressly agreed that if all or part of the Leased Premises
shall be materially destroyed or damaged, during the Term, then the following
provisions shall apply:
(pp) If the damage or destruction is such that the Leased Premises are
render within 15 days of such damage or destruction wholly unfit for
occupancy by the Tenant or if, in the opinion of the Landlord, the
Leased Premises are impossible or unsafe to use and occupy and if in
either event the damage, in the opinion of the Landlord, cannot be
repaired with reasonable diligence within sixty (60) days from the
date the Landlord has given its opinion, then the Landlord or the
Tenant at any time thereafter may terminate this Lease by giving to
the Tenant written notice of such termination, in which event this
Lease and the Term hereby demised shall cease and be at an end as of
the date of such destruction or damage and the Rent and all other
payments for which the Tenant is liable under the terms of this
Lease shall be apportioned and paid in full to the date of such
destruction or damage. In the event the Landlord does not so
terminate this Lease, then the Landlord shall repair the Leased
Premises with all reasonable speed and the Base Rent and additional
rent hereby reserved shall xxxxx from the date of the happening of
the damage until the damage shall be made good to the extent of
enabling the Tenant to use and occupy the Leased Premises.
(qq) If the damage be such that the Leased Premises are wholly unfit for
occupancy by the Tenant, or if in the opinion of the Landlord it is
impossible or unsafe to use or occupy all or part of the Leased
Premises, but in either event the damage, in the opinion of the
Landlord, can be repaired with reasonable diligence within sixty
(60) days from the date the Landlord has given its opinion, then the
Base Rent and additional rent hereby reserved shall xxxxx from the
date of the happening of such damage until the damage shall be made
good to the extent of enabling the
11
11
Tenant to use and occupy the Leased Premises and in the proportion
that the part of the Leased Premises so damaged bears to the whole
of the Leased Premises, and the Landlord shall repair the damage
with all reasonable speed.
16. LIABILITY
THE TENANT HEREBY COVENANTS AND AGREES with the Landlord that the
Landlord shall not be liable for, and the Tenant shall indemnify and save
harmless the Landlord from any and all liability, costs, losses, claims, demands
or actions for damages, injury or loss, incurred, suffered or sustained
whatsoever by any person or persons in or about the Leased Premises howsoever
caused, and in particular, but without in any way limiting the generality of the
foregoing, the Landlord shall not be liable for any damages caused by steam,
water, rain or snow which may leak into, issue or flow from any part of the
Leased Premises or from water, steam, sprinkler or drainage pipes or plumbing
works or for any damage caused by, or attributable to, the condition or
arrangement of any electrical or other wiring or in respect of any costs,
penalties or charges arising from the non-payment of any Taxes or other moneys
to be paid by the Tenant under this Lease and all of the Tenant's covenants of
indemnity herein contained shall survive the termination of this Lease, anything
herein to the contrary notwithstanding, but nothing herein shall relieve the
Landlord for liability arising by reason of the actions or negligence of the
Landlord, its agents, servants, contractors, employees and authorized
representatives.
The Tenant acknowledges and agrees that reference throughout this
Lease to the "acts, negligence or omissions of the Tenant" shall be deemed to
include reference to the acts, negligence or omission of the Tenant's
successors, assigns, subtenants, agents, licensees, affiliates, invitees,
trustees in bankruptcy, employees, guests, suppliers or others acting on behalf
of or at the request of the Tenant and all other persons for whom the Tenant is
responsible in law.
17. STATUS STATEMENTS AND SUBORDINATION
THE LANDLORD AND THE TENANT covenant and agree that, if and whenever
reasonably required by the other party, they will confirm and consent to and
become a party to any reasonable instrument relating to this Lease including,
but not limited to, the delivery of statements as to the status of this Lease,
which may be required by or on behalf of any purchaser, mortgagee or insurer or
other person, firm or corporation which may have an interest in the Leased
Premises. The Tenant further covenants and agrees that the Tenant's rights in
and under this Lease shall be subordinate to any mortgage or charge now or
hereafter registered against the Building and the Leased Premises provided that
the mortgagee or chargee confirms to the tenant that the Tenant's rights under
this lease shall not be disturbed while the Tenant is not in default despite
default under any such mortgage or charge and, if requested by the Landlord, the
Tenant shall execute such documents and give such further assurances as may be
necessary to cause this Lease to be subordinated to such mortgage or charge.
In addition the Landlord hereby postpones and subordinates this Lease in
favour of any security held by RoyNat on any of the machinery and equipment of
the Tenant in respect of any statutory right that it may have to distrain for
arrears of rent or any other similar right granted by statute or existing at
common law or in equity.
18. INSTALLATIONS BY LANDLORD
THE LANDLORD and any persons authorized by the Landlord shall have
the right to install, maintain and/or repair pipes, wires, ducts or other
installations in, under or through the Leased Premises and the Building, for or
in connection with the supply of any services to the Leased Premises and shall
have the right to enter into or upon the Leased Premises for the purposes
aforementioned, but nothing herein contained shall oblige the Landlord to carry
out such installation, maintenance or repairs, and although the Landlord shall
attempt to make all such repairs in a professional manner, the Landlord shall
not be liable for
12
12
any losses or damages which may be incurred by the Tenant as a result thereof,
other than arising from its negligence.
19. WAIVER
THE FAILURE OF the Landlord or the Tenant to insist upon the strict
performance of any of the agreements, terms, covenants and provisoes contained
in this Lease shall not be deemed to be a waiver of any rights or remedies that
the Landlord or Tenant may have and shall not be deemed to be a waiver of any
subsequent breach or default in any of such agreements, terms, covenants, and
conditions. All rights and powers reserved to the Landlord or Tenant hereunder
may be exercised either by the Landlord or Tenant or their respective agents or
representatives from time to time and all such rights and powers shall be
cumulative and not alternative.
20. NOTICE
ANY NOTICE, request or demand herein provided or permitted to be
given by the Tenant to the Landlord shall be sufficiently given if sent by
facsimile transmission or personally delivered to the Landlord or if mailed in
Ontario by postage prepaid registered mail addressed to the Landlord at 000
Xxxxx Xxxx, Xxxxxxx, Xxxxxxx, XXX 0X0 [fax # (000) 000-0000].
ANY NOTICE, request or demand herein provided or permitted to be
given by the Landlord to the Tenant shall be sufficiently given if sent by
facsimile transmission or personally delivered to the Tenant or if mailed in
Ontario by postage prepaid registered mail addressed to the Tenant at the Leased
Premises.
All notices given as aforesaid shall be conclusively deemed to have
been received on the day on which such notice is personally delivered or faxed,
or on the third business day following the day upon which such notice is mailed,
as the case may be. Either party may, at any time, give notice in writing to the
other of any change of address of the party giving such notice, and from and
after the giving of such notice, the address therein specified shall be deemed
to be the address of such party for the giving of notices hereunder. The word
"notice" in this paragraph shall be deemed to include any request statement or
other writing in this Lease provided or permitted to be given by the Landlord to
the Tenant or by the Tenant to the Landlord.
21. EXPROPRIATION
If at any time during the Term any public body or paramount
authority shall take or expropriate the whole or a portion of the Leased
Premises, then the Landlord shall be entitled to any compensation awarded for
settlement for the lands so taken or expropriated and the Tenant hereby assigns,
transfers and sets over unto the Landlord all the right, title and interest of
the Tenant therein and thereto, and this Lease shall thereafter continue in
effect with respect to the Leased Premises or such portion thereof as then
remains, with a reasonable abatement of Rent, unless the Lease Premises are no
longer appropriate for the Tenants purposes.
22. ARBITRATION
Any disputes or other matters which the parties agree shall be
settled by arbitration shall be resolved in accordance with the provisions of
the Arbitration Act of Ontario, as amended, subject to the provisions of this
Section.
The Landlord and the Tenant shall select an arbitrator, provided
that in the event the parties cannot agree upon an arbitrator, then each party
shall nominate one arbitrator and the two arbitrators shall promptly select a
third arbitrator to act jointly with them. (If the two arbitrators shall be
unable to agree on the selection of a third arbitrator, then upon written
13
13
application by either of the arbitrators, the third arbitrator shall be
appointed by a justice of the Superior Court of Ontario). The arbitration shall
take place at such time and location as the arbitrator(s) shall determine for
the purpose of hearing such evidence and representation as the Landlord or the
Tenant may present. The decision of the arbitrator (or, in the event that there
is more than one arbitrator, the majority decision of the arbitrators shall be
final and binding. All costs associated with the arbitration hearing may, by the
decision of the arbitrator, be borne by one party or may be divided equally
between the Landlord and the Tenant.
23. SUCCESSORS and ASSIGNS
THIS INDENTURE and everything herein contained shall enure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
executors, administrators, successors and assigns, as the case may be, subject
to the consent of the Landlord being obtained as hereinbefore provided to any
assignment, sublease or parting with possession of the Leased Premises by the
Tenant. Notwithstanding any other provision of this Lease, in the event the
Landlord sells, transfers or otherwise disposes of ownership of the Leased
Premises, the party herein signing as Landlord shall be automatically freed and
relieved from and after the date of such transfer or conveyance of any
obligations or liability whatsoever provided that the transferee or subsequent
owner assumes such obligations or liability and upon any such transfer or
conveyance, the subsequent owner or owners of the Leased Premises shall be
deemed to be the only "Landlord" as the term is used in this Lease.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their
respective corporate seals, attested by the hands of their respective officers
duly authorized in that behalf made as of this
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF )
)
/s/ [ILLEGIBLE] ) /s/ Xxxxx Xxxxxxxxx
----------------------------------- ) ----------------------------------------
) XXXXX XXXXXXXXX
)
/s/ [ILLEGIBLE] ) /s/ Xxxx Xxxxxxx
----------------------------------- ) ----------------------------------------
) XXXX XXXXXXX
)
) Carrying on business as T & R
) CONSTRUCTION AND MANAGEMENT INC.
)
) TRANSCONTINENTAL GOURMET
) FOODS INC.
)
) Per: [ILLEGIBLE]
) -----------------------
) A.S.O.
)
) C/S
)
) Per: [ILLEGIBLE]
) -----------------------
) A.S.O.
14
Schedule A
[GRAPHIC OMITTED]
--------------------------------------------------------------------------------
LEGEND
[ILLEGIBLE]
SURVEYOR'S CERTIFICATE
I HEREBY CERTIFY THE FIELD SURVEY REPRESENTED ON THIS PLAN WAS COMPLETED ON
THE [ILLEGIBLE]th. DAY OF SEPT., 1987
DATE: OCT. 22, 1987 by /s/ X. Xxxxx
----------------- --------------------------------------
X. XXXXX
ONTARIO LAND SURVEYOR
NOTES
BEARINGS ARE DETERMINED AND ARE DERIVED FROM THE NORTHERN LIMIT OF OSTER LANE AS
SHOWN ON REGISTERED PLAN 7925 HAVING A BEARING OF [ILLEGIBLE]
--------------------------------------------------------------------------------
X. XXXXX COMPANY LTD.
ONTARIO LAND SURVEYORS
00000 XXXXX XXXXXX
XXXXXXXX XXXX, XXXXXXX, [ILLEGIBLE]
PHONE: 000-0000 XXXX 00-00
--------------------------------------------------------------------------------
(A) XXX ENTERPRISE
15
LEASE AMENDING AGREEMENT
This agreement made as or this day of March, 1996
BETWEEN:
XXXXXXX XXXXXXXXX and XXXX XXXXXXX
----------------------------------
Carrying on business as "T & R Construction"
(hereinafter called the "Landlord")
OF THE FIRST PART;
-and-
TRANSCONTINENTAL GOURMET FOODS INC.
-----------------------------------
a company incorporated under the laws of the
Province of Ontario
(hereinafter called the "Tenant")
OF THE SECOND PART.
WHEREAS by a lease (hereinafter referred to as the "Lease") dated
the 25th day of February, 1992, the Landlord did demise and lease unto the
Tenant those certain premises (hereinafter referred to as the "Demised
Premises") being UNIT #3 in the property municipally known as 000 XXXXX XXXX, in
the City of Xxxxxxx, as more particularly described in the Lease, for the term
of FIVE (5) years commencing on the 1st day of September, 1991, and ending on
the 31st day of August, 1996;
AND WHEREAS the Landlord and the Tenant wish to amend the Lease;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and agreements hereinafter contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby by each
of the parties acknowledged, the parties hereto agree as follows:
1. The description of the Demised Premises contained in the Lease shall be
deleted and replaced with the following:
The Demised Premises comprise Unit #3 (10,490 square feet) and Unit
#4 (10,164 square feet) situate in the building municipally known as
000 Xxxxx Xxxx, Xxxxxxx as more particularly shown outlined in red
on the drawing attached hereto.
2. The term of the Lease shall be extended for a period of THREE (3) YEARS
AND ONE (1) MONTH so that the term of the Lease shall expire on the 30th
day of December, 1999.
3. The rental rates and amounts contained in the Lease shall be deleted and
replaced with the following:
A) During the rental period commencing on the 1st day of April, 1996
and expiring on the 30th day of September, 1997, the Tenant shall
pay monthly base rent in the amount of $7,142.84 on the first day of
each and every month to the Landlord representing a rental rate of
$4.15 per square foot.
16
-2-
B) During the rental period commencing on the 1st day of October,
1997 and expiring on the 30th day of September, 1998, the Tenant
shall pay monthly base rent in the amount of $7,487.08 on the first
day of each and every month to the Landlord representing a rental
rate of $4.25 per square foot.
C) During the rental period commencing on the 1st day of October,
1998 and expiring on the 30th day of December, 1999, the Tenant
shall pay monthly base rent in the amount of $8,003.43 the first day
of each and every month to the Landlord representing a rental rate
of $4.65 per square foot.
4. The Tenant acknowledges and agrees that it and Tasty Batters Inc. shall be
jointly and severally responsible throughout the Term for the maintenance,
repair and restoration of (a) the floors of the Demised Premises and (b)
the rooftop refrigeration/ventilation units situate on the roof of the
Demised Premises. The Tenant covenants and agrees to complete all
restorative work required by the Landlord prior to surrendering the
Demised Premises.
5. In all other respects the Lease shall remain unamended.
6. This Agreement benefits and binds the parties hereto and their respective
heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this agreement
as of the date above first written.
SIGNED, SEALED AND DELIVERED ) TRANSCONTINENTAL GORMET
in the presence of: ) FOODS INC.
)
) Per: [ILLEGIBLE]
) ----------------------------------------
) A.S.0.
) Per:
) ----------------------------------------
) A.S.0.
) /s/ Xxxxxxx Xxxxxxxxx
----------------------------------- ) ----------------------------------------
WITNESS ) Xxxxxxx Xxxxxxxxx
)
[ILLEGIBLE] 6/6/96. )
----------------------------------- ----------------------------------------
WITNESS Xxxx Xxxxxxx
Carrying on business as T & R
Construction
17
[GRAPHIC OMITTED]
--------------------------------------------------------------------------------
LEGEND
[ILLEGIBLE]
SURVEYOR'S CERTIFICATE
I HEREBY CERTIFY THE FIELD SURVEY REPRESENTED ON THIS PLAN WAS COMPLETED ON
THE [ILLEGIBLE]th. DAY OF SEPT., 1987
DATE: OCT. 23, 1987 by /s/ X. Xxxxx
----------------- --------------------------------------
X. XXXXX
ONTARIO LAND SURVEYOR
NOTES
BEARINGS ARE DETERMINED AND ARE DERIVED FROM THE NORTHERN LIMIT OF OSTER LANE AS
SHOWN ON REGISTERED PLAN 7925 HAVING A BEARING OF [ILLEGIBLE]
--------------------------------------------------------------------------------
X. XXXXX COMPANY LTD.
ONTARIO LAND SURVEYORS
00000 XXXXX XXXXXX
XXXXXXXX XXXX, XXXXXXX, [ILLEGIBLE]
PHONE: 000-0000 XXXX 0[ILLEGIBLE]
--------------------------------------------------------------------------------
18
THIS INDENTURE made this
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT.
B E T W E E N:
XXXXXXX XXXXXXXXX AND XXXX XXXXXXX,
c.o.b. T & R CONSTRUCTION,
(hereinafter referred to as the "LESSOR")
OF THE FIRST PART;
-and-
Transcontinental Gormet Foods Inc., (T.G.F.)
(hereinafter referred to as the "LESSEE")
OF THE SECOND PART.
1. WITNESS 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, as owner of the building (hereinafter
referred to as the "building") hath demised and leased and by these presents
doth demise and lease unto the Lessee ALL THAT certain message or tenement
situate, lying and being that part of the building more particularly shown
outlined in red on the Plan annexed hereto as Schedule "A" (hereinafter referred
to as "the demised premises"), together with the right to use the common outside
areas and facilities as hereinafter defined in common with other Lessees of the
Lessor.
2. TO HAVE AND TO HOLD the demised premises for and during the term of five (5)
year to be computed from the 1st day of September, 1991, and from thenceforth
next ensuing and full to be complete and ended on the 3lth day of August, 1996,
together with the right of renewal hereinafter contained.
3. (a) YIELDING AND PAYING THEREFORE yearly for the first (1) years of the term
hereby granted, unto the Lessor, a rental of THIRTY ONE THOUSAND FOUR HUNDRED
AND SEVENTY ($31 470.00) of lawful money of Canada, to be paid in advance,
without deduction, in equal consecutive monthly instalments of TWO THOUSAND SIX
HUNDRED AND TWENTY TWO DOLLARS ($ 2 622.00) each on the first day of each and
every month in each and every year during the first (1) year of the term hereby
granted, at the Lessor's Office at 000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 or
at such other place as the Lessor May hereafter from time to time direct,
together with the additional rent hereinafter reserved.
19
-2-
(b) AND YIELDING AND PAYING THEREFOR yearly for the second (2) year of the
term hereby granted, unto the Lessor, a rental of THIRTY FOUR THOUSAND AND NINEY
TWO DOLLARS AND FIFTY CENTS ($34 092.50) of lawful money of Canada, to be paid
in advance, without deduction, in equal consecutive monthly instalments of TWO
THOUSAND EIGHT HUNDRED AND FOURTY ONE DOLLARS AND FOUR CENTS ($2 841.04) each on
the first day of each and every month.
(c) AND YIELDING AND PAYING THEREFOR yearly for the third (3) year of the
term hereby granted, unto the Lessor, a rental of THIRTY SIX THOUSAND AND SEVEN
HUNDRED AND FIFTEEN DOLLARS ($36 715.00) of lawful money of Canada, to be paid
in advance, without deduction, in equal consecutive monthly instalments of THREE
THOUSAND AND FIFTY NINE DOLLARS AND FIFTY EIGHT CENTS ($3 059.58) each on the
first day of each and every month.
(d) AND YIELDING AND PAYING THEREFOR yearly for the forth (4) year of the
term hereby granted, unto the Lessor, a rental of THIRTY NINE THOUSAND AND THREE
HUNDRED AND THIRTY SEVEN DOLLARS AND FIFTY CENTS ($39 337.50) of lawful money of
Canada, to be paid in advance, without deduction, in equal consecutive monthly
instalments of THREE THOUSAND TWO HUNDRED AND SEVENTY EIGHT DOLLARS AND THIRTEEN
CENTS ($3 278.12) each on the first day of each and every month.
(e) AND YIELDING AND PAYING THEREFOR yearly for the fifth (5) year of the
term hereby granted, unto the Lessor, a rental of FORTY ONE THOUSAND AND NINE
HUNDRED AND SIXTY DOLLARS ($41 960.00) of lawful money of Canada, to be paid in
advance, without deduction, in equal consecutive monthly instalments of THREE
THOUSAND FOUR HUNDRED AND NINEY SIX DOLLARS AND SIXTY SEVEN CENTS ($3 496.67)
each on the first day of each and every month.
(f) THE LESSOR hereby acknowledges receipt of the sum of SIX THOUSAND AND
FIVE HUNDRED AND FORTY SEVEN DOLLARS AND FIFTY ONE CENTS ($6 547.51) to be
applied on account of rent for the first and last months of the term hereby
granted. G.S.T. included in receipted total.
20
-3-
4. THE LESSEE COVENANTS AND AGREES with the Lessor as follows:
(a) To pay rent.
(b) To pay to the Lessor in each and every year during the term hereof,
as additional rent:
(i) Its proportionate share of the amount of all taxes, rates, duties
and assessments whatsoever, including local improvement rates,
whether municipal, parliamentary or otherwise, now charged, levied,
rated or assessed, or hereafter to be charged levied, rated or
assessed against the building and the lands or any similar taxes not
now in existence or contemplated at any time during the term hereof
by any competent governmental or municipal body in addition to, or
in lieu of, the taxes, rates, duties or assessments hereinbefore
referred to; and
(ii) If the taxes in respect of the building of which the demised
premises form part shall be increased by reason if any installations
made in or upon, or any alteration made in or to the demised
premises by Lessee, the amount of such increase; and
(iii) If the Lessee or any person, firm or corporation occupying the
demised premises or any part thereof shall elect to have the demised
premises or any part thereof assessed for separate school taxes, the
amount by which the separate school taxes exceed the amount which
would be payable by the Lessor for school taxes, had such election
not been made, provided that if the Lessee so elects and the
separate school taxes paid are less than public school taxes in any
year of the term hereby granted, the amount of school tax payable by
the Lessee shall be reduced accordingly.
21
-4-
(iv) Its proportionate share of all taxes, rates, duties and assessments
whatsoever, including local improvement rates now charged, levied,
rated or assessed, or hereafter to be charged, levied, rated or
assessed, upon or in respect of the common outside areas, and
including, but without limiting the generality of the foregoing, its
proportionate share of all business taxes, if any, from time to time
payable by the Lessor in respect of the common outside areas and
facilities, or any part thereof.
(c) To Pay, as and when the same becomes due, and to save the Lessor in
all respects harmless with respect thereto, all business taxes from time to time
levied against, or payable by the Lessee in respect of the Lessee's occupancy of
the demised premises.
(d) Whenever in this lease reference shall be made to the Lessee's
proportionate share of any taxes, costs, charges or expenses, the same shall be
that proportion which the area of the demised premises bears to be total floor
area (including the demised premises) of the entire building, including any
future additions thereto. The area is to be calculated in accordance with the
method set forth in paragraph 23 hereof.
(e) Whenever in this lease reference shall be made to the common outside
areas and facilities, the same shall mean all of the lands not for the time
being covered by the building (other than any service building for the general
benefit of all tenants of the lands) and shall include any improvements (apart
from structures erected by the Lessee) thereon and thereto, such as tool sheds,
lighting standard and parking signs.
(f) The tax payments required to be made by the Lessee to the Lessor under
the provisions of sub-paragraph (b) hereof shall be paid by the Lessee to the
Lessor on presentation to the Lessee of a statement of moneys due by the Lessee
supported by copies of tax bills or at the option of the Lessor, the Lessor may
estimate on the date of the commencement of each lease year the Lessee's
proportionate share of the payments to be made by the Lessee under sub-paragraph
(b) hereof and such amount shall be payable by the Lessee in equal monthly
instalments of the days on wish rent is payable hereunder with such amount to be
adjusted upon the Lessor finally determining the amount payable under
sub-paragraph (b) hereof whereupon any deficiency in payment shall be
immediately paid to the Lessor and any overpayment shall at the option of the
Lessor either be credited to the Lessee's account or paid to it.
(g) In each and every year during the term hereof to pay, satisfy and
discharge, directly or indirectly, all charges in connection with water,
electrical current, gas, rental charges for gas or electrically operated hot
water heaters and other public or private utilities or services extraordinary as
well as ordinary, supplied at any time to the demised premises.
22
-5-
(h) To indemnify and keep indemnified the Lessor in respect of all losses,
costs, charges, penalties and expenses occasioned by, or arising from, the
non-payment of any and every tax, rate, assessment, charge, expense or fee,
including any business or similar tax assessed against the Lessee or any
sub-tenant or licensee or other persons occupying the demised premises or any
part thereof, and provided that the same shall be a charge on the demised
premises or in any way the ultimate responsibility of the Lessor, unless the
same shall have already been paid by the Lessee to the Lessor, and provided that
the same shall not be of a kind personal to the Lessor, such as taxes on the
income of the Lessor.
(i) At its own expense, to properly carry out all repairs, which repairs
shall include without limiting the generality of the foregoing leaks to the roof
of the demised premises, replacements, maintenance, and painting of the demised
premises and of all machinery and equipment situate therein or thereon (both
inside and outside and including any stairs or platform leading thereto, and to
repair and maintain the demised premises, reasonable wear and tear ( not
inconsistent with the maintenance of the building as first class industrial
premises having regard for the then age of the building ) and structural defects
to the roof, walls, foundations and cracks to floors not caused by the Lessee's
acts, omissions or neglect, only excepted.
(j) To promptly comply with and conform to the requirement of all
applicable statutes, laws, by-laws, regulations, ordinances and orders from time
to time, or at any time in force during the term hereof and affecting the
condition, equipment, maintenance, use or occupation of the demised premises and
with every applicable regulation, order and requirement of the Insurer's
Advisory Organization of Canada, or any body having a similar function or of any
liability or fire insurance company by which the Lessor and Lessee or either of
them may be insured at any time during the term thereof.
(k) In the event of the observance of any apparent structural defect or
material damage to the demised premises by any cause, to give notice in writing
to the Lessor of such defect or damage forthwith upon the same becoming known to
the Lessee; Provided that if such defects or damages becomes know to the Lessee
or reasonably should have been observed by the Lessee and
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the Lessee fails to give notice thereof to the Lessor, the Lessee shall be
liable for such of the costs incurred by the Lessor in repairing the said defect
or damage as can be shown to be directly attributable to the actions of the
Lessee and those for whom in law the Lessee is responsible (including additional
costs incurred by the Lessor in repairing such defects or damages for reason of
the failure of the Lessee to give such notice) after such defect or damage
became known to the Lessee or reasonably should have been observed by the
Lessee.
(l) To permit the Lessor at all reasonable times to enter upon and view
the state of repair and maintenance of the demised premises and to comply with
all reasonable requirement of the Lessor with respect to the care, maintenance
of the demised premises and to comply with all reasonable requirement of the
Lessor with respect to the care, maintenance and repair thereof, subject to the
exceptions hereinbefore provided.
(m) That upon the expiration of the term hereby granted the Lessee will
peaceable surrender, quit and deliver up the demised premises to the Lessor in a
good state of repair and maintenance, subject to the exceptions herein provided.
(n) At its own expense, to keep entrances and all steps and platforms
leading to the demised premises clear of all snow, ice and debris.
(o) That it will not carry on, or permit to be carried on, in or about the
demised premises any business activity which shall, upon reasonable grounds, in
the opinion of the Lessor, be deemed to be a nuisance, nor will it omit to do or
permit to be omitted to be done anything in respect of the demised premises, the
omission of which shall, upon reasonable grounds in the opinion of the Lessor,
be deemed to be a nuisance, provided that activities carried on only be the
Lessee in its ordinary course of business shall be deemed not to be nuisance.
The demised premises shall only be used, to the extent permitted by the relevant
zoning by-laws for the purposes of offices, showroom, warehouse and general
manufacturing.
(p) To assume the sole responsibility for and the cost of heating of the
demised premises with the heating equipment supplied by the Lessor.
(q) That the Lessee may assign, sublet or part with possession of the
demised premises or any part thereof, or share the occupation of the demised
premises or any part thereof with the consent of the Lessor in writing, which
consent may not be unreasonably or arbitrarily withheld.
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(r) That it may not place anything on the roof or in any way make any
opening in the roof for stacks or other purposes, or in any way alter the walls
or structure of the demised premises without the written consent of the Lessor,
which consent may not be unreasonably or arbitrarily refused.
(s) That it will during the whole of the term hereby granted pay to the
Lessor as hereinafter provided, as additional rent, its proportionate share of
all premiums with respect to insurance to be placed by the Lessor and described
as follows:
(i) Fire, extended coverage and malicious damage insurance, for the full
replacement value of the building, its improvements and equipment
and including fire rental income insurance.
(ii) Broad boiler and unfired pressure vessels insurance including repair
or replacement and rental income coverage in amounts reasonably
satisfactory to the Lessor, if required by the Lessor.
(iii) Plate Glass Insurance, if required by the Lessor, provided the
Lessee may self-insure plate glass;
(iv) Such other insurance coverage, including liability insurance in the
minimum amount to be determined by the Lessor (and which liability
insurance shall show the Lessor and Lessee as insured thereunder) as
may be or become customary for owners of property to carry
respecting loss of or damage to or occurring on the demised premises
or common outside areas; or liability therefrom specifically
including any insurance required by reason of the introduction by or
on behalf of the Lessee, or any persons, firms or corporations
claiming through or under it of any radioactive or hazardous
material or substances into or about the demised premises, or on the
common outside areas.
AND all such insurance coverage shall be kept and maintained with a
member of the Insurer's Advisory Organization of Canada, and in no event shall
the coverage be less than the
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minimum required by any institution then holding a mortgage on the demised
premises. The Lessee shall pay to the Lessor as additional rent, its
proportionate share of the amount of the insurance premiums payable to maintain
the insurance coverage herein contemplated. The Lessor shall deliver certified
copies of all such policies of insurance coverage to the Lessee. The Lessee
shall not do or permit to be done any act or thing whereby the insurance
coverage or any of them hereinbefore contemplated may be increased in premium or
cancelled by the insurer, or the demised premises shall be rendered uninsurable,
and if by reason of any act done or permitted or omission, as the case may be,
by the Lessee, the said insurance coverage or any of them shall be increased in
premium, with respect to the entire coverage and this notwithstanding that the
Lessee occupies only a portion of the building covered by such insurance
coverage, and if the demised premises shall be rendered uninsurable or if the
said insurance coverage or any of then shall be cancelled by reason of any act
done or permitted, or omission, as the case may be, by the Lessee, and shall not
be susceptible of being replaced, the Lessor, after giving the Lessee at least
fourteen (14) days within which to replace the insurance coverage or coverage
shall, at its absolute discretion, have the right to determine that the term
hereof has expired and in such event the Lessee shall deliver up possession of
the demised premises as if the term of this lease had expired.
(t) Not to use any outside garbage or other containers unless approved by
the Lessor, and such permission not to be unreasonably or arbitrarily withheld,
or to allow any ashes, refuse, garbage or other loose materials to accumulate in
or about the demised premises.
(u) (i) That it will, during the whole of the term hereby granted, pay the
Lessor as additional rent as hereinafter provided, its proportionate share of
the costs incurred by the Lessor in cleaning and maintaining the common outside
areas and facilities as hereinbefore defined, including, but without limiting
the generality of the foregoing, snow removal, gardening, and maintenance,
including repairs and maintenance and replacements of paving, curbs, walkways,
landscaping, and drainage as may from time to time become necessary, and other
reasonable costs which may be incurred with respect to the said common outside
areas and facilities;
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(ii) The manner in which the said common outside areas and
facilities be maintained shall be at the sole discretion of the Lessor provided
that the said manner shall be reasonable and in keeping with the maintenance of
a first class industrial building having regard for the then age of the
building.
(v) The Lessor may, at its option, estimate, on the date of the
commencement of each lease year, the Lessee's proportionate share of the
additional rent and other charges herein to be paid by the Lessee and such
amount shall be payable by the Lessee in equal monthly instalments on the days
on which rent is payable hereunder, and such amount is to be adjusted upon the
Lessor finally determining such additional rent and other charges herein,
whereupon any deficiency in payment shall be immediately paid to the Lessor and
any overpayment by the Lessee shall at the option of the Lessor either be
credited to the Lessee's account or paid to it.
(w) The Lessee acknowledges that the demised premises comprise part of the
building and that the building may be served by common drainage, water systems
and sprinkler systems, as well as electrical systems, and in the event that the
repairs are necessary to any of such systems in any portion of the building,
save by reason of negligence of the Lessor, or any other Lessee or Lessees
occupying other portions of the building, or their servants, employees or
agents, then the Lessee covenants to forthwith pay to the Lessor its
proportionate share of the total cost of such repairs forthwith upon receiving
written demand therefor; and the Lessor's servants, employees or agents shall
have reasonable access to the demised premises for the purpose of making the
necessary repairs herein contemplated without liability for any disturbance, or
business interruption which may be caused in do doing, and for greater
certainty, it is expressly agreed that if any of such common systems shall have
been damaged or shall have become inoperative by reason of the negligence of the
Lessee, its servants, employees or agents, then the entire cost of repairing the
same shall be borne by the Lessee.
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(x) The Lessee acknowledges that one or more of the walls of the demised
premises are party walls which may be used as to the portion adjacent to the
demised premises by the adjoining Lessee, or by the Lessor, and the Lessee
covenants and agrees that as to any repairs required to that said party wall
required to be made under the provisions of sub-paragraph 4(i) hereof, it will
bear one-half of the cost of such repairs, unless such repairs are necessitated
wholly by reason of the negligence of the Lessee in which event the Lessee shall
be responsible for the entire cost of such repairs, and in the event that
repairs are made necessary by reason of the negligence of the Lessor, or the
adjoining Lessees, then the cost of repairs shall not be borne by the Lessee,
and the Lessee covenants that it will forthwith pay the cost of such repairs to
the said party walls for which it is responsible hereunder forthwith upon
receiving written demand therefor.
5. PROVIDED that the Lessee may remove its fixtures, including lighting fixtures
and exhaust fans, provided that the lessee shall not remove or carry away form
the demised premises or common outside areas any buildings or part thereof or an
plumbing, heating, ventilating, wiring or electrical panels and services, or
other building services; provided the Lessee shall repair any damage occasioned
to the premises by the installation or removal of its fixtures and shall restore
the demised premises to the state that existed prior to such installation.
6. PROVIDED that if the term hereby granted or any of the goods and chattels of
the Lessee shall be at any time seized or taken in execution or in attachment by
any creditor of the Lessee or if a Writ of Execution shall issue against the
goods or chattels of the Lessee, or if the Lessee shall execute any chattel
mortgage or xxxx of sale of any of its goods or chattels other than in the
ordinary course of its business, or if the Lessee shall make any assignment for
the benefit of creditors or commit any other act of bankruptcy as defined in the
Bankruptcy Act of Canada or any amendment thereto, or becoming a bankrupt or
insolvent shall take the benefit of any Act which may be in force for bankrupt
or insolvent debtors, or shall attempt to abandon the demised premises or to
sell or dispose of its goods or chattels so that there would not, in the event
of such sales or disposal, be, in the opinion of the Lessor, a sufficient
distress on the demised premises for the then accruing rent and moneys accruing
hereunder as rent, then the current month's rent, together with rent for the
three months next ensuing (and for purposes hereof rent shall include all moneys
designated to be paid as additional rent, including, but without limiting the
generality of the foregoing, against billing on account of taxes, insurance
premiums and maintenance of the common outside areas and facilities:, shall
immediately become due and payable on presentation of invoices and the said term
shall at the
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option of the Lessor forthwith become forfeited and determined, in which event
the Lessor may re-enter and take possession of the demised premises as though
the Lessee, or any occupant or occupants of the demised premises was or were
holding over after the expiration of the term without any right whatsoever,
provided that no action by the Lessor in so doing shall be deemed to relieve the
Lessee of its obligations for the payment of rent and additional rent of any
other moneys payable hereunder.
7. Provided that in case of removal by the Lessee of its goods and chattels from
the demised premises, the Lessor may follow the same for thirty (30) days, in
the same manner as is provided for in The Landlord and Tenant Act; and
notwithstanding anything contained in The Landlord and Tenant Act, or any other
statute or any other subsequent legislation, none of the goods or chattels of
the Lessee at any time during the continuance of the term hereby granted on the
demised premises shall be exempt from levy by distress for rent in arrears, and
that upon any claim being made for any exemption by the Lessee on a distress
made by the Lessor this covenant may be pleaded as an estoppel against the
Lessee in any action brought to test the right to the levying upon any such
goods, the Lessee waiving as it hereby does any exemptions from distress with
might have accrued to the Lessee under the provisions of The Landlord and Tenant
Act.
8. Proviso for re-entry by the Lessor on non-payment of rent or non-performance
of covenants. In the event that the Lessee shall be in default of any of its
covenants hereunder, including the covenant of the Lessee to pay rent or
additional rent, the Lessor shall give to the Lessee notice in writing stating
the said default with reasonably sufficient particulars, and requiring that the
said default be remedied and that if such default is not remedied by the Lessee
with fifteen (15) days after the receipt of such notice, the Lessor may at its
option either enter into and upon the demised premises or any part thereof in
the name of the whole and have again, repossess, and enjoy the same as of its
former estate and the said lease shall thereupon terminate, or itself take steps
and to do or cause to be done such things as may be necessary to remedy and
correct such defaults. Provided further that in the event that the Lessor shall
be entitled to, and shall elect to make a re-entry as hereinbefore provided for,
any re-entry or other action so taken shall not deemed to relieve the Lessee of
its obligation to pay rent and other moneys payable as rent hereunder and such
rent and other moneys payable as rent in accordance with the provisions hereof
shall continue to accrue and be payable until such time as the Lessor is able to
re-let the premises, or otherwise deal with the same in such manner that it did
not sustain any loss should the Lessee thereafter fail to pay the rent and other
moneys payable as rent or otherwise under this
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lease. Provided further that in addition to all other rights hereby reserved to
it, the Lessor shall have the right to re-enter the demised premises as the
agent of the Lessee either by force or otherwise, without being liable for any
prosecution therefor, and to re-let the whole or any portion of the demised
premises for any period equal to or greater or less than the remainder of the
then current term of the lease and to receive the rent therefor, said rent to be
any sum which it may deem suitable and satisfactory, and for any use and purpose
which it may deem appropriate and in connection with any such lease, the Lessor
may make changes in the character of the improvements of the demised premises as
the Lessor may determine to be appropriate or helpful in effecting such lease;
but in no event shall the Lessor be under any obligation to re-let the demised
premises in whole or in part for any purpose which the Lessor may regard as
injurious to the demised premises, or to any lessee which the Lessor, in the
exercise of reasonable discretion, shall deem to be objectionable and to apply
any rent derived from so re-letting the demised premises upon account of the
rent due hereunder, and the Lessee shall remain liable to the Lessor for the
deficiency, if any, it being the intention hereof that nothing herein contained
and no entry made by the Lessor hereunder shall in any way release the Lessee
from the payment of the rent hereby reserved during the term hereof beyond such
sum as may be realized by the Lessor by such re-letting or by the proceeds of
any distress made by the Lessor against the Lessee; and provided that the Lessor
shall not in any event be required to pay to the Lessee any surplus of any sums
received by the Lessor on a re-letting of the demised premises in excess of the
rent reserved hereunder.
9. Provided that should the Lessee remain in possession of the demised premises
after the termination of the original therm hereby created, without other
special agreement, granted that three (3) months notice was given to the Lessor,
it shall be as a monthly tenant at a monthly rental equal to the rental payable
during the last month of the term hereof, payable on the first day of each and
every month and subject in other respects to the terms of this lease, including
those provisions requiring the payment of additional rent in monthly
instalments.
10. The Lessor covenants with the Lessee as follows:
(a) For quiet enjoyment
(b) That the Lessee shall have the right from time to time to make
alterations and changes in the interior of the demised premises as it may find
necessary for its purposes and at its own expense, provided that plans for such
alterations or changes shall be delivered to the Lessor and the consent of the
Lessor in writing shall first be obtained, such consent not to be unreasonably
or arbitrarily withheld.
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(c) That the Lessor has in it good right, full power and absolute
authority to lease the demised premises with their appurtenances according to
the true intent of this indenture, and that it will execute such further
assurances with respect thereto as may be reasonably required.
11. Provided and it is expressly agreed that if and whenever during the term
hereby demised the demised premises shall be destroyed or damaged by any
casualty, then the following provisions shall apply:
(a) If the damage or destruction is such that the demised premises are
rendered wholly unfit for occupancy or it is impossible or unsafe to use and
occupy them and it in either event the damage, in the opinion of the Lessor and
Lessee, to be given to the Lessee within fifteen (15) day of the happening of
such damage or destruction, cannot be repaired with reasonable diligence within
sixty (60) days from the date the Lessor has given its opinion, then either the
Lessor or the Lessee may within five (5) days next succeeding the giving of the
Lessor's opinion as aforesaid, terminate this lease by giving to the other
notice in writing of such termination, in which event this lease and the term
hereby demised shall cease and be at an end as of the date of such destruction
or damage and the rent and all other payments for which the Lessee is liable
under the terms of this lease shall be apportioned and paid in full to the date
of such destruction or damage; in the event that neither the Lessor nor the
Lessee so terminate this lease, then the Lessor shall repair the said building
with all reasonable speed and the rent hereby reserved shall xxxxx from the date
of the happening of the damage until the damage shall be made good to the extent
of enabling the Lessee to use and occupy the demised premises.
(b) If the damage be such that the demised premises are wholly unfit for
occupancy, or if it is impossible or unsafe to use or occupy them, but if in
either event the damage, in the opinion of the Lessor, to be given to the Lessee
within fifteen (15) days from the happening of such damage, can be repaired with
reasonable diligence within sixty (60) days from the date the Lessor has given
its opinion, then the rent hereby reserved shall xxxxx from the date of the
happening of such damage until the damage shall be made good to the extent of
enabling the lessee to use and occupy the demised premises, and the Lessor shall
repair the damage with all reasonable speed.
(c) If the damage is such that the demised premises are only partially
damaged or destroyed, and in the opinion of the Lessor, to be given to the
Lessee within fifteen (15) days from
31
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the happening of such damage, can be repaired with reasonable diligence within
sixty (60) days from the date the Lessor has given its opinion, then the rent
hereby reserved shall xxxxx in the proportion that the part of the demised
premises so damaged bears to the whole of the demised premises, and the Lessor
shall repair the damage with all reasonable speed. Provided that in the event of
partial damage to the building with no damage to the demised premises, rent
shall not xxxxx and the Lessee shall continue to use and occupy the demised
premises, and the Lessor shall repair the damage to the building with all
reasonable speed.
12. The Lessee hereby covenants and agrees with the Lessor that the Lessor shall
not be liable for, and the Lessee shall save harmless the Lessor from any and
all liability , coasts, claims, demands or actions for damages, injury or loss,
suffered or sustained by any person or persons in or about the demised premises
or any part thereof, and for damage or injury to the property of any person or
persons occasioned by the Lessee, it's customers, employees, servants or agents,
or by their neglect, default or misconduct or occasioned by reason of any other
cause or matter whatsoever, and in particular, but without in any way limiting
the generality of the foregoing, the Lessor shall not be liable for any damages
to any such property cased by steam, water, rain or snow which may leak into,
issue or flow from any part of the demised premises or from the water, steam,
sprinkler or drainage pipes or plumbing works of the same or from any other
place or quarter or for any damage caused by, or attributable to, the condition
or arrangement of any electrical or other wiring and the covenants of indemnity
herein contained in respect of damage to property, injury or death, occurring
during the term of this lease shall survive the termination of this lease,
anything herein to the contrary notwithstanding, but nothing herein shall
relieve the Lessor for liability arising by reason of the negligence of the
lessor, its servants or agents or those for whom the Lessor is in law
responsible.
13. In the event that the Lessee shall make default in the payment of any sum
required to be paid by it or shall make default in the performance of any
covenant or the doing of any thing required to be performed or done by it
hereunder, than the Lessor shall have the right to pay any such sum so in
default or to perform or do any such thing and such sums so in default or to
perform of do any such thing and such sums so paid or the costs or performing or
doing such tings, and in every such case, shall be deemed to be additional rent
payable under the provisions of this lease and the Lessor shall be entitled to
charge all such sums or moneys to the Lessee and the Lessee shall pay them
forthwith on demand; and the Lessor in addition to any other rights, shall have
the same remedies and may take the same steps for the recovery of
32
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all such sums or moneys as it might have taken for the recovery of rent in
arrears under the terms of this lease. All arrears of rent and moneys payable as
rent or additional rent under the terms of this lease which may be in arrears
shall bear interest at the rate of two per cent (2%) per annum above the prime
lending rate of the Lessor's bank calculated and payable monthly from the time
such arrears become due and payable until paid to the Lessor.
14. The Lessor shall have the right at any time during the term hereby demised
to place upon the demised premises a notice of reasonable dimensions and
reasonably placed so as not to interfere with the Lessee's business, stating
that the demised premises are for sale, and at any time during the last six (6)
months of the term that the demised premises are to let, and the Lessee shall
not remove such notices, or permit the same to be removed.
15. Any building, erection or improvement placed or erected in or upon the
demised premises, or upon the lands, apart from the Lessee's fixtures, shall
become a part thereof and shall, to the extent that the same are utilized by the
Lessee, be subject to all of the provisions of this lease. No building, erection
or improvement shall be erected in or upon, or adjacent to the demised premises,
or upon the lands, without the prior written consent of the Lessor.
16. The Lessee covenants that it will if and whenever reasonably required by the
Lessor, and at the Lessor's expense, if necessary, consent to and become a party
to any reasonable instrument relating to this lease, including the delivery of
statements as to the status of this lease, which may be required by or on behalf
of any purchaser, mortgagee or insurer or other person, firm or corporation
which may have an interest in the demised premises and in addition the Lessee
shall execute such documents which may be necessary to cause this lease to be
subordinated to any incidental mortgage or charge against the lands and
building, provided that the Lessor will obtain from any existing Mortgagee and
any future Mortgagee of the demised premises an agreement in writing to the
effect that if such Mortgagee takes any action under its mortgage to realize its
security in the demised premises by way of foreclosure, possession or otherwise,
such Mortgagee will permit the Lessee to remain in possession of the demised
premises and to enjoy all its rights and privileges under this lease provided
that the Lessee performs and observes all the covenants, provisions, terms and
conditions on the part of the Lessee in the Lease.
17. The Lessee shall have the right, at its own expense to attach, paint or
display such signs, sign boards, posters, flags or other advertisements or
decorations in or about the demised premises, provided that it shall have first
obtained the consent in writing of the Lessor thereto, such consent not to be
unreasonably
33
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or arbitrarily withheld, and provided that the same shall be removed by the
Lessee at the expiration of the term hereof and the Lessee shall thereupon
restore the demised premises to their former condition. The Lessee acknowledges
and agrees that the Lessor is interested in all of the lands, and accordingly
reserves the right to regulate all signs, sign boards posters, flags,
advertisements or other decorations in its sole and entire discretion in order
to maintain a unanimity in the area and to protect the aesthetics thereof for
its own benefit and for the benefit of the Lessee and other interested persons,
and that the aforesaid covenant by the Lessor not to unreasonably or arbitrarily
withhold its consent shall be construed accordingly. The lessee shall indemnify
the Lessor against any loss or damage caused to any person, firm, corporation or
thing as a result of the placing or use of any sign, sign board, poster, flag,
advertisement or other thing of a similar nature in or about the demised
premises in contravention of the terms of this paragraph.
18. (a) The Lessee acknowledges and agrees that the Lessor shall have the right
to promulgate reasonable rules and regulations, copies of which shall be
delivered to the Lessee to regulate the use of the common outside areas and
facilities about the building, provided that such restrictions shall not hinder
the use of the demised premises by the Lessee. The Lessee agrees that for its
benefit and welfare, and for the benefit and welfare of lessees occupying other
parts of the building and using the said common outside areas and facilities,
such reasonable rules binding upon the Lessee, provided that nothing herein
contained shall require or be deemed to require the Lessor to promulgate any
such rules or regulations or to regulate in any manner whatsoever the use of the
common outside areas and facilities.
(b) The Lessee, its employees, invitees, and customers and persons
connected with the Lessee (subject and except as in this lease provided), as
appurtenant to the demised premises during term of this lease and any renewal
period thereof shall have the right in common with others entitled thereto from
time to time to use the driveways, walkways, lawns, if any ramps and other
common outside areas and facilities in and about the lands as may from time to
time be designated by the Lessor. The Lessee shall not reasonably block or in
any manner hinder the Lessor, other Lessees or persons claiming through or under
them or any of them who may be authorized by the Lessor to utilize the common
outside areas and facilities from so doing. The Lessor may in its discretion
from time to time permit certain lessees or others to have the exclusive use of
portions thereof to the exclusion of other lessees.
(c) Subject as herein provided, the Lessor shall have the right to make
such changes and improvements or alterations as the Lessor may from time to time
in its discretion determine in respect of the common outside areas and
facilities, or any part thereof.
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19. The Lessor and any persons authorized by the Lessor shall have the right to
install, maintain and/or repair pipes, wires, ducts or other installations in,
under or through the demised premises, or in, under or through the common
outside areas and facilities, for or in connection with the supply of any
services to the demised premises or other premises in the building, but nothing
herein contained shall oblige the Lessor to make such installations or do such
maintenance or effect such repairs. The Lessor shall make all such repairs as
quickly as possible and in such manner as to not inconvenience the Lessee to the
least possible extent, but the Lessor shall not be liable for any losses or
damages which may be incurred by the Lessee as a result thereof.
20. The failure of the Lessor of Lessee to insist upon a strict performance of
any of the agreements, terms, covenants and conditions hereof shall not be
deemed to be a waiver of any rights or remedies that the Lessor or Lessee may
have and shall not be deemed to be a waiver of any subsequent breach or default
in any of such agreements, terms, covenants, and conditions. All rights and
powers reserved to be the Lessor or Lessee hereunder may be exercised either by
the Lessor or Lessee or their respective agents or representatives from time to
time and all such rights and powers shall be cumulative and not alternative.
21. Any notice, request or demand herein provided or permitted to be given by
the Lessee to the Lessor shall be sufficiently given if mailed in Ontario by
postage prepaid registered mail, or personally delivered to the Lessor addressed
to 000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 and any notice herein provided or
permitted to be given by the Lessor to the Lessee shall be sufficiently given if
mailed in Ontario, by postage prepaid registered mail, or personally delivered
to the Lessee addressed to it at the demised premises. Any such notice given as
aforesaid shall be conclusively deemed to have been given on the day on which
such notice is delivered, or on the third business day following the day upon
which such notice is mailed, as the case may be. Either party may, at any time,
give notice in writing to the other 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. The word "notice" in this paragraph 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
22. If at any time during the term hereby granted any public body or paramount
authority shall take or expropriate the whole or a portion of the demised
premises, then the following provision shall apply:
35
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(a) If such expropriation or compulsory taking does not materially affect
the Lessee's use or enjoyment of the demised premises, then the whole of the
compensation awarded for settlement for the lands, or portion of the demised
premises so taken or expropriated, whether fixed by agreement or otherwise,
shall be paid or received by the Lessor, and the Lessee hereby assigns transfers
and sets over unto the Lessor all the right, title and interest of the Lessee
therein and thereto, and this lease shall thereafter continue in effect with
respect to the demised premises or such portion thereof as then remains, without
abatement of rent.
(b) If such expropriation or compulsory taking does materially affect the
Lessee's use or enjoyment of the demised premises, then this lease shall be
deemed to terminate and the term hereof shall terminate on the date upon which
the expropriating or taking authority requires possession of the lands so
expropriated to taken, and in such event the Lessor shall be entitled to receive
the entire compensation awarded or settlement for the land and/or building so
taken or expropriated, whether fixed by agreement or otherwise, save and except
for that portion thereof as is specifically awarded or allocated in respect of
leasehold improvements, or other interest, made by the Lessee.
23. The rent herein (not including additional rent otherwise provided for) is
calculated on the basis that the demised premises contain by admeasurement an
area of 10 490 square feet, at an annual rent of $3.00 per square foot for the
first (1) year of the original term hereof, an annual rent of $3.25 per square
foot for the second (2) year of the original term hereof, an annual rent of
$3.50 per square foot for the third (3) year of the original term hereof, an
annual rent of $3.75 per square foot for the forth (4) year of the original term
hereof, and an annual rent of $4.00 per square foot for the fifth (5) year of
the original term hereof. When the demised premises have been completed, then
the area thereof shall be calculated by the Lessor measuring the same from the
exterior face of the exterior wall and across the extension of the planes
thereof over the opening for door and windows (save and except that if any doors
and/or windows project beyond the exterior face of the exterior wall, then such
projection shall be measured from the exterior face of the door and/or window
from and across the extension of the planes thereof) to the centre line of any
party wall or partition. In the event that the demised premises are found to
have an area either more or less than the area referred to above, then the
rental hereinbefore set forth (and the monthly rental consequent thereupon)
shall be adjusted upward or downward accordingly, at the said rate(s).
36
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24. The Lessor covenants with the Lessee that if the Lessee duly and regularly
pays the said rent and performs all the covenants and provisos and requirements
herein and on the part of the Lessee to be paid and preformed, that the Lessee
shall have the option of renewing this lease for a further term of up to five
(5) year upon the same terms years upon the same terms and conditions save and
except that there shall be no further right of renewal and save and except that
the rental for the renewal term shall be such an amount as is determined by the
Lessor and Lessee by common agreement, and failing agreement the rent shall be
determined by arbitration as provided for under The Arbitrations Act of Ontario
(whereupon such determination shall be binding on the parties with no recourse
to appeal) but in no event shall the rental for the renewal term be less than
the rental for the last year of the original term therein granted. The Lessee
shall exercise its right of renewal by delivering to the Lessor in writing
notice of the Lessee s intention to renew at least six (6) months prior to the
expiry of the original term herein failing which the Lessee's right to renewal
shall be deemed to be null and void. In the event the rental to be paid during
the renewal term has not be determined in accordance with the foregoing
provisions on or before the expiry of the original term of the lease, the Lessor
shall have the right to establish the monthly rental during the renewal term and
such rental shall be paid by the Lessee until the rental has been determined by
common agreement or arbitration as hereinbefore provided whereupon the Lessor
and the Lessee shall adjust the rental theretofore paid by the Lessee.
25. This indenture and everything herein contained shall enure to the benefit
of, and be binding upon, the parties hereto and their respective heirs,
executors, administrators, successors and assigns, as the case may be, subject
to the consent of the Lessor being obtained as hereinbefore provided to any
assignment, sublease or parting with possession of the demised premises by the
Lessee.
26. Wherever the context so requires, the terms "Lessee" and "Sub-Lessee" herein
shall be deemed to include the singular, plural, masculine, feminine and neuter,
and when applied in the plural , shall apply to such parties jointly and
severally.
27. North American Frozen Pastries Inc. has assigned the original lease signed
August 23, 1991 to Transcontinental Gourmet Foods Inc. (T.G.F.) provided the
lease remains in good standing and guaranteed by North American Frozen Pastries
Inc.
37
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In witness whereof the parties hereto have hereunto affixed their
respective corporate seals, attested by the hands of their respective officers
duly authorized in that behalf this 25th day of February , 1992.
SIGNED, SEALED AND DELIVERED ) /s/ Xxxxxxxx Xxxxxxxxx
in the presence of ) ----------------------------------------
) Xxxxxxxx Xxxxxxxxx
)
)
) ----------------------------------------
) Xxxx Xxxxxxx
)
) Name of Lessor
) Per /s/ [ILLEGIBLE]
) ----------------------------------------
) A.S.0.
)
) Per
) ----------------------------------------
) A.S.0.
