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Exhibit 10.7
THIS INDENTURE made as of the 1st day of January, 2000.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT.
B E T W E E N:
1249462 ONTARIO LIMITED,
hereinafter called the "Landlord"
OF THE FIRST PART
- and -
TASTY SELECTIONS INC.,
hereinafter called the "Tenant"
OF THE SECOND PART
- and -
INTERNATIONAL MENU SOLUTIONS INC.,
hereinafter called the "Indemnifier"
OF THE THIRD PART
WHEREAS the Landlord is the owner of certain lands situated in the
City of Xxxxxxx, in the Province of Ontario, and being municipally known as 000
Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx (the "Lands");
AND WHEREAS that in consideration of the rents, covenants and
agreements hereinafter contained on the part of the Tenant to be paid, observed
and performed, the Landlord has demised and leased and by these presents does
demise and lease unto the Tenant the Leased Premises.
THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
IN THIS LEASE:
(a) "building" means the building in which the Leased Premises are
situated;
(b) "common facilities" means (a) those areas, facilities, utilities,
improvements, equipment and installations in the complex that, from
time to time, are not designated or intended by the Landlord to be
leased to tenants of the complex and (b) those areas, facilities,
utilities, improvements, equipment and installations which serve or
are for the benefit of the complex and are designated from time to
time by the Landlord as part of the common facilities. Common
facilities include, without limitation, the parking areas, all
entrances and exits thereto, driveways, pedestrian sidewalks,
fences, trees, flowers and shrubbery, security systems and general
signs which are designated from time to time by the Landlord and
which are provided and made available for the general use of the
tenants of the complex and their officers, agents, employees and
customers, all whether in existence now or constructed and provided
subsequent to the date hereof;
(c) "complex" means all of the buildings and appurtenant lands and
facilities, including common facilities, and services of which the
premises herein demised form part and situate on the Lands;
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(d) "Leased Premises" means those premises known as Suite 103, 000
Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx, comprising the square feet of
Gross Floor Area set out in Section 2(e), more or less, outside
measurement (and without deduction for columns and the like) as more
particularly described in Schedule "A" hereto, such area being
determined by the Landlord acting reasonably;
(e) "proportionate share" means that ratio of any cost for which the
Tenant is required to pay its proportionate share having as
numerator the area of the Leased Premises and as denominator the
aggregate rentable area of the buildings forming part of the
complex, as determined by the Landlord acting reasonably; Provided,
should the Leased Premises form part of a building, then, in the
context of costs and expenses relative to such building, the term
"proportionate share" shall mean that ratio which has as numerator
the area of the Leased Premises and as denominator the aggregate
rentable area of such building, as determined by the Landlord acting
reasonably;
(f) "Term" means the term demised by this Lease, as set out in paragraph
4.
2. BASIC TERMS
The basic terms of this Lease, which are hereinafter more fully
detailed, are summarized as follows:
Refer to
Section
-------
(a) Leased Premises: Suite 000 0
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
(b) Term: FIVE (5) YEARS AND TWO (2) MONTHS 4
(c) (i) Commencement Date: 4
Suite 103: January 1, 2000
(ii) Expiry Date: February 28, 2005
(d) Lease Years 1 & 2 $112,750.00 per annum
$9,395.83 per month
($5.00 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
Lease Years 3 & 4 $118,387.50 per annum
$9,865.63 per month
($5.25 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
Lease Year 5 $124,025.00 per annum
January & February 2005 $10,335.42 per month
($5.50 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
(e) Gross Floor Area of the Leased Premises: 22,550 2
(f) Deposit:
(i) First Month $ 9,395.83 32
Additional Rent (Estimated) $ 6,577.08
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(ii) Last Month $10,335.42
Additional Rent (Estimated) $ 7,516.67
(iii) G.S.T. $ 2,367.75
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Total: $36,192.75
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(g) Use of the Leased Premises: 7(a)
MANUFACTURING OF FOOD PRODUCTS
(h) Name of Business to be carried on
in the Leased Premises: 7(c)
TASTY SELECTIONS INC.
- PASTA KITCHENS
(i) Address for Service of Notice on Tenant and
Indemnifier 20
Xxxxx 000
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
(j) Address for Service of Notice on Landlord: 20
1249462 ONTARIO LIMITED
0 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
(k) Special Provisions, if any: See Schedule "C"
Schedules
Plan of Leased Premises: Schedule "A"
Tenant's Work Schedule "B"
Special Provisions Schedule "C"
3. INSPECTION
The Tenant acknowledges having inspected the Leased Premises and
accepts same "as-is" on this date.
4. TERM
The term of the Lease ("Term") shall be the period described as Term
in Section 2(b), the first day of which (the "Commencement Date") shall be the
date described as the Commencement Date in Section 2(c)(i)(A).
5. BASIC RENT AND ADDITIONAL RENT
(a) Commencing on the Commencement Date, the Tenant shall pay a fixed
minimum annual rent ("Basic Rent") in the amount described as Basic
Rent in Section 2(d), to be paid in equal monthly instalments
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in advance on the first day of each month throughout the Term. For
any broken month at the beginning or end of the Term, the Basic Rent
shall be pro-rated on a per diem basis.
Upon the Landlord's architect determining within six (6) months of
the Commencement Date the Gross Floor Area of the Leased Premises,
all rent and other monies payable by the Tenant pursuant to this
Offer and the Lease shall be adjusted accordingly, which adjustment
will be retroactive if actual measurement does not occur until after
the Commencement Date.
(b) All other amounts payable by the Tenant to the Landlord pursuant
hereto or under the Lease or for any other reason whatsoever
("Additional Rent") shall be deemed to be rent and shall be payable
in advance and collectible in the same manner as rent hereunder and
under the Lease. The Tenant shall pay all Basic Rent and Additional
Rent to the Landlord without any deduction, set-off or abatement
whatsoever.
(c) The Tenant agrees to deliver to the Landlord upon execution of the
Lease and hereafter at the beginning of each lease year during the
Term a series of twelve (12) monthly post-dated cheques for the
ensuing lease year, in amounts conforming with the monthly Basic
Rent payment and any Additional Rent estimated by the Landlord in
advance plus applicable GST. Following the end of each fiscal year,
the Landlord shall adjust the amount of the estimated monthly
payments upwards or downwards to reflect the actual Additional Rent
for the preceding year and shall retroactively adjust the Additional
Rent for the preceding year with any excess of estimated Additional
Rent over the actual Additional Rent being remitted to the Tenant
and any shortfall therefrom being paid by the Tenant to the
Landlord.
6. TENANT'S PAYMENTS AND OBLIGATIONS
The Lease shall be absolutely net and carefree to the Landlord save
as set out herein and, commencing on the Commencement Date and thereafter
throughout the Term, the Tenant shall be responsible for and shall pay for:
(a) all obligations and costs whatsoever in respect of the Leased
Premises and the Tenant's business therein including, without
limiting the generality of the foregoing:
(i) all costs and all obligations in respect of all utilities
supplied to or consumed in the Leased Premises, including
costs of consumption determined by separate meters installed
by the Landlord acting reasonably at the Tenant's expense and,
to the extent that the cost of same is not determined by
separate meters, then as allocated by the Landlord, acting
reasonably;
(ii) all costs and all obligations of and in respect of heating,
ventilating and air conditioning of the Leased Premises
subject to section 13(d), to be the Tenant's proportionate
share (as hereinafter defined) thereof or; at the Landlord's
option, such other allocation as determined by the Landlord,
acting reasonably;
(iii) all business taxes and other taxes as assessed and billed in
respect of the Tenant's business and assets and all taxes
attributable to the operation of the business in the Leased
Premises; and
(iv) all taxes, rates, duties, fees or assessments (other than
income taxes, wealth taxes and large corporation taxes) levied
upon the gross or net rentals or other amounts received by the
Landlord from the Tenant, whether referred to as a business
transfer tax, goods and services tax, value-added tax,
national sales tax or by any other name, and any such costs,
charges and expenses suffered by the Landlord may be collected
in the same manner as rent with all the rights of distress and
otherwise or reserved to the Landlord, in respect of rent
arrears.
(b) (i) all realty taxes and all other assessments and duties
levied, rated, charged or assessed from time to time in
respect of the Leased Premises or if levied, rated, charged or
assessed in respect of the Building then the proportionate
share (as hereinafter defined) thereof and the proportionate
share (as hereinafter defined) of all realty taxes and all
other assessments and duties levied, rated, charged or
assessed from time to time in respect of the common areas and
including the Landlord's capital taxes and any commercial
concentration taxes, if applicable;
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and
(ii) the proportionate share (as hereinafter defined) of all costs
and expenses, without duplication, but subject to Section
13(d), of maintaining, repairing, operating, insuring and
managing the Building, including the costs of obtaining the
information required to apportion costs, and all common areas
including, but not limited to, insurance, utilities and repair
and replacement of all fixtures, equipment and facilities as
they may relate to or are attributed to by the Landlord to the
building and the common areas and excluding costs incurred in
connection with the correcting of defaults in or inadequacy of
the initial design or construction of the building;
unrecovered expenses resulting from the gross negligence of
the Landlord, its agents, servants or employees; costs for
which the Landlord is otherwise reimbursed by Tenant; and
capital expenditures and major maintenance and replacement of
essential building systems and costs of base building
upgrades, and a management fee of fifteen (15.0%) percent of
gross amounts received or receivable by the Landlord in
respect of the Project for all Additional Rents but excluding
such gross amounts as are received or receivable by the
Landlord in respect of the Project pursuant to Section
6(b)(i), all as defined as "Operating Costs" in the Lease.
For the purposes of this Lease, the Tenant's proportionate share
shall mean a fraction which has as its numerator the Gross Floor Area of the
Leased Premises and as its denominator the total Gross Floor Area of the
rentable premises within the Building, grossed up for the purposes of section
6(a)(ii) and 6(b) as if there were no vacancies, as amended from time to time as
more fully described in the Lease.
7. USE OF THE LEASED PREMISES
(a) The Tenant shall not use or permit the Leased Premises to be used
for any purpose other than that described as Use of the Leased
Premises in section 2(g).
(b) At all times throughout the Term, the Tenant shall continuously and
actively conduct its business in the whole of the Leased Premises in
a first class and reputable manner during normal business hours as
established by the Landlord in the municipality in which the Project
is located in compliance with the provisions of this Lease and the
requirements of all applicable laws and regulations and the Tenant
shall keep, operate and maintain the Leased Premises and the
building and every part thereof in a clean and sanitary condition
and in accordance with all laws, directions, rules and regulations
of any government authority having jurisdiction in respect of same.
(c) The Tenant covenants that the business to be conducted on the Leased
Premises shall be known by the name set out as Name of Business on
the Leased Premises in Section 1(h) hereof and by no other name
whatsoever without the Landlord's prior written consent, which shall
not be unreasonably withheld.
(d) The Tenant shall not erect or permit any signs visible from the
common areas of the Building or from the exterior of the Leased
Premises which are not in keeping with a class A office building,
and in any event, without the Landlord's prior written consent,
which shall not be unreasonably withheld. The Landlord acknowledges
that a building bulkhead sign as well as a sign at the lot corner is
requested by the Tenant and accepted by the Landlord, subject to
Landlord's approval of the format of such sign.
(e) INTENTIONALLY DELETED
(f) Except to the extent that same are the Landlord's responsibility
pursuant to the terms hereof, the Tenant covenants to maintain,
repair and make necessary replacements to the Leased Premises,
including all contents thereof and all services, facilities and
equipment located in or primarily serving the Leased Premises, all
in good order and first class condition in keeping with the
standards of a first-class building, subject to section 13(d).
(g) If the Leased Premises shall become vacant or not be used for the
purpose aforesaid, and remain so for a period of thirty (30) days,
or if the Leased Premises shall be used for any purpose other than
that
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for which the same are hereby leased, this Lease shall, at the
option of the Landlord, forthwith on written notice to the Tenant,
cease and determine and become null and void, and thereupon the
instalments of rent accruing and due during the next ensuing three
(3) months shall immediately become due and payable to the Landlord.
(h) The Tenant shall not perform acts or carry on any practices which
may injure the complex and shall keep the interior of the Leased
Premises reasonably clean and free from rubbish and dirt and shall
store all trash and garbage within the Leased Premises and arrange
for the regular removal of such trash and garbage at such times and
during such hours as the Landlord may designate. The Tenant shall
not burn any trash or garbage in or about the Leased Premises or
anywhere else within the confines of the complex. The Tenant shall
not keep or display merchandise on or otherwise obstruct the common
facilities adjacent to the Leased Premises.
(i) The Tenant hereby covenants to the Landlord that after the
Commencement Date that the Tenant, its employees, agents, other
representatives, customers or contractors shall not permit any
unlawful use, storage, manufacturing or disposal of materials or
substances deemed to be hazardous or dangerous as defined under
federal, provincial or municipal environmental, health or safety
laws, policies, guidelines or standards. In the event the nature of
the Tenant's business calls for the use of any such hazardous
materials or substances during the term of this Lease or any renewal
period thereof, the Tenant and its principals shall be held
responsible and liable for the clean up work, remedial actions or
expenditures (including the cost of any environmental site
assessment the Landlord may reasonably require) required to the
Leased Premises in the event the levels of concentration of the
hazardous materials or substances in the building or ground are
found to exceed established governmental decommissioning guidelines
in effect during the Term. The obligations of the Tenant as
described herein shall survive the expiration of this Lease.
(j) The Tenant shall not use, exercise or carry on or permit or suffer
to be used, exercised or carried on, in or upon the Leased Premises
or any part thereof, any noxious, noisome or offensive art, trade,
business, occupation or calling, or keep, sell, use or handle and
dispose of goods or things which are objectionable, or by which the
Leased Premises shall be injured, and shall not cause, permit or
suffer anything to be done or continued to be done in or upon the
Leased Premises or any part thereof which may be or become a
nuisance or annoyance, or which may void or render voidable any
insurance upon the building or part thereof. The Tenant shall be
responsible for the removal and disposal of all of its hazardous
waste, if any, from the Leased Premises, shall pay all costs
associated with such removal and disposal, and shall comply with all
governmental and regulatory body requirements relating to same. The
obligations of the Tenant as described herein shall survive the
expiration of this Lease.
8. INSURANCE
(a) The Tenant covenants with the Landlord that throughout the term of
this Lease, it shall take out and maintain at its sole cost and
expense, in the names of the Tenant and the Landlord as their
respective interests may appear: (i) insurance covering all property
of the Tenant located within the Building, including leasehold
improvements and the Tenant's inventory, stock-in-trade, trade
fixtures, furniture and moveable equipment and everything in general
which the Tenant is obliged to repair or replace by the terms of
this Lease on a replacement cost basis which insurance shall include
the Landlord as a named insured as the Landlord's interest may
appear, provided that any proceeds receivable in the event of loss
shall be payable to the Landlord (but the Landlord agrees to make
available such proceeds towards the repair or replacement of the
insured property if this Lease is not terminated pursuant to any
other provision hereof), in an amount of not less than the full
replacement cost, with coverage against at least the perils of fire
and standard extended coverage, including sprinkler leakages (where
applicable), earthquake and flood; (ii) broad form boiler and
machinery insurance on a blanket repair and replacement basis; (iii)
business interruption insurance to an extent sufficient to allow the
Tenant to meet its ongoing obligations to the Landlord and to
protect the Tenant against loss of revenues; (iv) public liability
and property damage insurance, including personal injury liability,
contractual liability, non-owned automobile liability, employees'
liability and owners' and contractors protective insurance coverage,
written on a comprehensive basis with inclusive limits of not less
than
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TWO MILLION ($2,000,000.00) DOLLARS; (v) tenant's legal liability
insurance for the actual cash value of the Leased Premises; (vi)
automobile liability insurance with ONE MILLION ($1,000,000.00)
DOLLARS inclusive limits; (vii) plate glass insurance; and (viii)
any other form of insurance as the Landlord reasonably requires.
(b) All insurance required to be obtained by the Tenant hereunder shall
be on terms and with insurers satisfactory to the Landlord acting
reasonably and the amounts referred to herein are subject to
increase as the Landlord may from time to time reasonably demand.
The Tenant shall promptly furnish to the Landlord certified copies
of such insurance policies or certificates of insurance or other
evidence satisfactory to the Landlord of such insurance or any
renewals thereof upon request by the Landlord. In the event of the
failure of the Tenant to so insure or to furnish the Landlord with
satisfactory evidence of such insurance or of the renewal thereof
the Landlord may from time to time effect such insurance on behalf
of the Tenant, and any premium paid by the Landlord shall be payable
forthwith by the Tenant upon demand as additional rent.
9. RIGHT TO USE COMMON FACILITIES
Subject to the reasonable rules and regulations in this Lease and to
such other and further reasonable rules and regulations as the Landlord may make
from time to time pertaining to the use of the common facilities, the Tenant
shall have for itself and its officers, agents and employees and for the use of
its customers the non-exclusive right to use, in common with all others entitled
thereto, the common facilities of the complex for their proper and intended
purposes during normal business hours.
10. UTILITIES
The Tenant shall pay all charges, costs and rates for all utilities
supplied to the Leased Premises, including heating, gas, electricity and water,
and for all meters, fittings, machines, apparatus and other things used in
connection with the supply and installation of such utilities, and for all work
and services performed by anyone in connection therewith, and shall be
responsible for paying any deposits required by any utility supplier; in the
event that any utility is not separately metered, the Tenant shall pay it's
share of such cost on such basis as the Landlord may determine.
11. TENANT'S ALTERATIONS
The Tenant shall not make any interior alterations which affect the
structure of the Leased Premises or the building, including alterations for the
purpose of installing any interior or exterior lighting or plumbing fixtures, or
exterior decorations or painting, without the previous consent of the Landlord,
such consent not to be unreasonably withheld. The Landlord may require that
prior to its issuing its consent that the Tenant submit complete plans for any
proposed alterations. All fixtures, improvements, installations and alterations
heretofore or hereafter made, erected or installed by the Tenant or by the
Landlord on behalf of the Tenant to the Leased Premises shall, at the
termination of this Lease, be and become the Landlord's property without
compensation therefor to the Tenant, and shall remain upon and be surrendered
with the Leased Premises as part thereof without disturbance, manipulation or
injury at the termination of the term. Notwithstanding anything contained in
this paragraph:
(a) The Tenant may install its usual trade fixtures in the usual manner
provided such installation does not damage the structure of the
Leased Premises or the building.
(b) Provided that the Tenant has paid the rent hereby reserved and
performed the covenants herein contained and on its part to be
performed, the Tenant shall have the right, at the expiration of
this Lease, to remove what is commonly regarded as strictly trade
fixtures, but the Tenant shall make good any damage or injury caused
to the Leased Premises that shall have resulted from such
installation and removal.
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(c) The Tenant, subject to Landlord's approval which shall not be
unreasonably withheld or delayed, shall be entitled to erect signs
in or upon the Leased Premises as it may deem appropriate but
provided that the locations, size and quantity or quality of same
comply with all local municipal by-laws together with any other
authority having jurisdiction over the Leased Premises, such signs
shall remain the property of the Tenant and may be removed at its
option, provided all damage caused by such erection or removal, if
any, shall be repaired properly at the Tenant's expense.
(d) The Landlord shall have the right at the expiration of the Lease to
require the Tenant to remove all fixtures, improvements,
installations and alterations heretofore or hereafter made, erected
or installed by the Tenant or by the Landlord on behalf of the
Tenant to the Leased Premises all at the Tenant's cost and the
Tenant shall make good any damage or injury caused to the Leased
Premises that shall have resulted from such installation and
removal.
12. TENANT'S COVENANTS AND AGREEMENTS
The Tenant covenants and agrees with the Landlord as follows:
(a) All loading and unloading of merchandise, supplies, materials,
garbage, refuse and other chattels shall be made only through or by
means of such doorways as the Landlord shall reasonably designate in
writing from time to time.
(b) The Tenant shall not register this Lease without the consent of the
Landlord. However, upon the request of either the Landlord or the
Tenant, the other shall join the execution of a memorandum or
so-called short form of this Lease for the purposes of registration.
The form of the document shall be subject to the approval of the
Landlord's solicitors and shall be registered at the Tenant's cost.
(c) The Landlord shall not be liable or responsible in any way for any
injury of any nature whatsoever that may be suffered or sustained by
the Tenant or any employee, agent or customer of the Tenant or any
other person who may be upon the Leased Premises, or for any loss of
or damage or injury to any property belonging to the Tenant or its
employees or to any other person while such property is on the
Leased Premises and in particular, but without limiting the
generality of the foregoing, the Landlord shall not be liable for
any damage or damages of any nature whatsoever to persons or
property caused by the failure by reason of breakdown or other
cause, to supply adequate drainage, snow or ice removal, or by the
interruption of any public utility or service or by steam, water,
rain, snow or other substances leaking into, issuing or flowing into
any part of the Leased Premises or from the water, stream, sprinkler
or drainage pipes or plumbing works of the same or from any other
place or quarter or for any damage caused by anything done or
omitted by any tenant provided that the breakdown or other cause is
remedied in a timely fashion.
The Tenant shall not be entitled to any abatement of rent in respect
of any such condition, failure or interruption of service, and the
same shall not constitute an eviction.
(d) To indemnify and save harmless the Landlord and its directors,
officers, employees, agents, subsidiaries and other affiliates from
all fines, suits, claims, demand and actions of any kind or nature
to which the Landlord shall or may become liable for or suffer:
(i) in connection with any matter referred to in clause (c) of
this paragraph 12 unless attributable to their gross
negligence; or
(ii) by reason of any breach, violation or non-performance by the
Tenant of any covenant, representation, warranty, term or
provision of this Lease, or
(iii) by reason of any injury occasioned to or suffered by any
person or persons or any property resulting from any wrongful
act, neglect or default on the part of the Tenant or any
employee, agent or customer of the Tenant.
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(e) In the event the Tenant shall fail to pay any taxes, rates or
charges payable by it under this Lease and which shall constitute a
lien or charge upon the Leased Premises or upon the complex, the
Landlord, after the expiration of ten (10) days' notice to the
Tenant, within which such default shall not have been cured, may pay
all or any of the same and all of such payments so made shall
constitute rent payable forthwith by the Tenant. The Tenant hereby
waives its right to appeal any such taxes, rates or charges unless
the Landlord otherwise agrees, acting reasonably.
(f) If the Tenant does or permits to be done or omitted upon the Leased
Premises anything which shall cause an increase in the rate of any
insurance upon the building or any part thereof, the Landlord may,
at its option, compel the Tenant to restore the Leased Premises to
the condition they were in prior to such act or permit the Tenant to
continue to do such act, in which case the Tenant shall pay the
Landlord the amount by which the insurance premiums in respect of
the building or any part thereof shall have been so increased. It is
agreed that if any insurance policy upon the building or any part
thereof shall be cancelled or the coverage thereunder reduced in any
way by the insurer, or if such action is threatened, by reason of
the use and occupation of the Leased Premises or any part thereof by
the Tenant or by any assignee, sub-tenant or licensee of the Tenant,
or by anyone permitted by the Tenant to be upon the Leased Premises,
the Tenant shall forthwith remedy the condition giving rise to such
cancellation or reduction of coverage or threatened cancellation or
reduction of coverage.
(g) If the Tenant wishes to install any electrical or other equipment
which may overload the electrical or other service facilities, the
Tenant shall at its own expense make whatever changes are necessary
to comply with the reasonable and lawful requirements of the
insurance underwriters and governmental authorities having
jurisdiction, but no changes shall be made by the Tenant until the
Tenant first submits to the Landlord plans and specifications for
the proposed work and obtains the Landlord's written approval to
make the same, such approval not to be unreasonably withheld.
(h) The Tenant will observe such reasonable rules and regulations as the
Landlord may make pertaining to the operation, reputation, safety,
care or cleanliness of the complex and the Leased Premises, the
operation and maintenance of the building and equipment, the use of
common facilities, display of signs visible outside any premises and
other matters affecting the operation of the complex and the
establishing and maintaining of a suitable image to customers. The
Landlord shall have the right from time to time to change such rules
and regulations and shall not be responsible to the Tenant for the
non-observance or violation of any such rules and regulations by any
other tenant or any person.
(i) The Tenant shall pay to the Landlord in the manner specified herein,
without any deduction, set-off or abatement, all rent hereby
reserved and all other amounts which are collectible by the Landlord
as rent, and in the event the Tenant shall fail to pay any such
amount when due and payable hereunder such amount shall bear
interest at the rate of 1.5% per month (18% per annum) until paid.
The Tenant shall observe and perform all terms and provisions of
this Lease on its part to be observed and performed and shall not do
or suffer to be done anything contrary to any term or provision
hereof.
(j) The Tenant shall, at the Tenant's sole cost and expense, comply with
all laws, orders, notices, rules and regulations of all municipal,
provincial, federal and other applicable governmental authorities,
now in force or which hereafter may be in force, pertaining to the
Leased Premises and the business carried on within, and will provide
the Landlord with notice of any work order, deficiency notice,
compliance order, spill or discharge of a contaminant pertaining or
relating to the Leased Premises and the business carried on within
and will indemnify and save harmless the Landlord from each and
every demand, action, cause of action and expense, including
solicitors' fees, caused by failure so to do. Landlord agrees, at
its cost, to assist Tenant in such manner as is reasonable to
satisfy any such work orders or deficiency notices which would
initially be required to be satisfied in order for any potential
tenant to obtain an occupancy permit for the Leased Premises.
13. LANDLORD'S COVENANTS AND AGREEMENTS
The Landlord covenants and agrees with the Tenant as follows:
(a) That if the Tenant pays the rent hereby reserved and performs the
covenants herein on its part
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contained, it shall and may peaceably possess and enjoy the Leased
Premises for the term hereby granted without any interruption or
disturbance from the Landlord or any other person or persons
lawfully claiming by, from or under it, provided that the Landlord
and its agent shall have the right to enter upon the Leased Premises
as reasonable times to show such premises to prospective purchasers,
encumbrancers, tenants or assignees, the Landlord shall have the
right within the three (3) months prior to the termination of the
Lease, to place upon the Leased Premises (but not at the entrance of
the Leased Premises) a notice of reasonable dimensions and
reasonably placed so as not to interfere with the business of the
Tenant, stating that the Leased Premises are for sale or to let, and
the Tenant agrees that it will not remove such notice or permit the
same to be removed.
(b) To enforce whatever guarantee and warranties, if any, given to the
Landlord in respect of the roof and outside walls, foundations and
steel assembly of the building.
(c) To repair and/or replace the paved areas provided the necessity for
same does not arise due to the unreasonable use thereof by the
Tenant, its agents employees or invitees, but the cost of same shall
be added to the Landlord's cost as provided for herein, and shall be
recoverable as additional rent.
(d) That the Tenant is not responsible for structural maintenance or
repairs of the Leased Premises, unless such repair or replacement is
caused by the negligence of the Tenant, including the heating, air
conditioning, electrical wiring, roofing and plumbing.
14. DAMAGE TO LEASED PREMISES
(a) If and whenever the Leased Premises shall be destroyed, demolished
or damaged by fire or other cause to such an extent that the same
shall not be capable with due diligence of being repaired, restored
or rebuilt within a period of one hundred and twenty (120) days
after the happening of such destruction, demolition or damage, then
either the Landlord or the Tenant may terminate this Lease upon
thirty (30) days' written notice to the other given within
forty-five (45) days of the date of such destruction, demolition or
damage, and in such event the Tenant shall thereupon immediately
surrender the Leased Premises and this Lease to the Landlord and
rent shall be apportioned to the date of such damage, demolition or
destruction.
(b) If the Leased Premises are destroyed, demolished or damages by fire
or other cause and notice to terminate this Lease shall not have
been given as provided under subparagraph (a) of this paragraph 14,
the Landlord shall repair the Leased Premises, excluding the
Tenant's fixtures, with all reasonable speed, and (i) if the
destruction, demolition or damage is such as to render the Leased
Premises wholly unfit for occupancy, all rent under this Lease shall
cease from the time of the occurrence thereof until the substantial
completion of repairs to the Leased Premises by the Landlord; (ii)
if the destruction, demolition or damage is such that the Leased
Premises can be partially used by the Tenant all rent hereunder
shall be payable in accordance with the terms hereof, provided that
rent payable during the whole or any part of the period during which
the Leased Premises may be only partially used by the Tenant, shall
xxxxx according to the nature and extent of the destruction,
demolition or damage from the time of the occurrence of such
destruction, demolition or damage until the substantial completion
of repairs to the Leased Premises by the Landlord; and (iii) upon
the substantial completion of repairs to the Leased Premises by the
Landlord all rent under this Lease shall recommence within fifteen
(15) days, or upon the opening of the Leased Premises for business,
whichever is the earlier. For greater certainty it is acknowledged
and agreed that the Landlord's work herein shall be funded only by
insurance proceeds, and the Landlord's work shall accordingly be
delayed until its claims under such insurance have been accepted and
it has received the insurer's authorization of the payment of such
proceeds to it.
(c) Any question as to the extent of damage to or destruction of the
Leased Premises or the building shall be determined by the
Landlord's architect whose decision shall be available to Tenant
within fifteen (15) days of the date of the damage and which shall
be final and binding and no appeal shall lie therefrom.
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15. RE-ENTRY BY LANDLORD
(a) Proviso for re-entry by the Landlord on non-payment of rent or
non-performance of covenants, subject to the provisions of this
Lease.
(b) If the Tenant shall fail to pay any instalment of rent or other sums
payable as rent under this Lease when due and shall allow such
default to continue for seven (7) days after notice of such default
or if the Tenant shall fail to perform any of the other covenants,
conditions or agreements in this Lease on the Tenant's part to be
observed, kept or performed, and shall allow any such default to
continue for seven (7) days (or such longer period as is reasonably
necessary to remedy the default, provided that the correction of the
default is commenced within such seven (7) day period and diligently
proceeded with) following the giving by the Landlord to the Tenant
of written notice of such default or if the Tenant shall without the
Landlord's prior written consent fail to move into or take
possession of the Leased Premises and open for business as provided
in this Lease, then the term of this Lease may at the option of the
Landlord and without notice to the Tenant be terminated and the term
and estate hereby vested in the Tenant any and all other rights of
the Tenant hereunder shall thereupon immediately cease and expire as
fully and with like effect as if the entire term of the Lease had
elapsed.
(c) If the Tenant shall default in the performance of any covenant
(other than any covenant to pay rent) on its part to be performed
under this Lease, the Landlord may, if such default shall continue
for seven (7) days following the giving by the Landlord to the
Tenant of written notice of such default perform the same for the
account of the Tenant, and may enter upon the Leased Premises for
that purpose and shall not be liable to the Tenant for any loss or
damage to the Tenant's merchandise or business caused by acts of the
Landlord in so remedying the default or neglect of the Tenant. If
the Landlord at any time is compelled or elects to pay any sum of
money or do any act which would require the payment of any sum of
money by reason of the failure of the Tenant to comply with any
provisions of this Lease or if the Landlord is compelled or elects
to incur any expense, including legal fees, by reason of any default
of the Tenant under this Lease, the sum or sums, including legal
fees so paid by the Landlord with all interest, costs and damages
being deemed to be additional rent hereunder and shall be paid by
the Tenant to the Landlord forthwith upon demand and upon
presentation of proof of payment.
(d) If the Landlord shall re-enter or if this Lease shall be terminated
as aforesaid:
(i) rent shall immediately become due and be paid up to the time
of such re-entry or termination, together with reasonable
expenses of the Landlord as set forth in clause (iv) of this
subparagraph (d);
(ii) the Landlord may re-let the Leased Premises or any part
thereof, either in the name of the Tenant or otherwise, for a
term or terms which may at the Landlord's option be less than
or exceed the period which would otherwise have constituted
the balance of the term of this Lease and may grant reasonable
concessions in connection therewith;
(iii) the Landlord, at its option and in addition to any other
remedy it may have, may require the Tenant, or the legal
representative of the Tenant, to pay the Landlord as
liquidated damages, monthly on the first day of each month
following such re-entry or termination until the expiration of
the period which would otherwise have constituted the balance
of the terms of this Lease, any deficiency between: (a) the
average of the amounts paid or payable by the Tenant as rent
and additional rent for each month during the period of twelve
(12) months immediately preceding such re-entry or termination
or for each month during the expired term hereof if less than
twelve (12) months; and (b) the amount, if any, of the rent
collected on account of the Lease or Leases of the Leased
Premises, for each month of the period which would otherwise
have constituted the balance of the term of this Lease; and
(iv) there shall be paid forthwith by the Tenant to the Landlord
such reasonable expenses as the Landlord may have incurred in
connection with re-letting, including legal costs, solicitors'
fees and brokerage, and the expenses of keeping the Leased
Premises in good order or of preparing
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the same for re-letting.
(e) In the event of a breach or threatened breach by the Tenant of any
of the covenants or provisions of this Lease, the Landlord shall
have the right to invoke any remedy allowed at law or in equity as
if re-entry and other remedies were not provided for in this Lease.
Mention in this Lease of any particular remedy shall not preclude
the Landlord from any other remedy available to it at law or equity.
All rights and remedies granted to the Landlord by the terms of this
Lease may be enforced successively, concurrently and/or cumulatively
by it.
16. RIGHT TO DISTRESS
The Tenant hereby covenants and agrees with the Landlord that in
consideration of these presents, and of the leasing and letting by the Landlord
to the Tenant of the Leased Premises for the term hereby created (and it is upon
that express understanding that these presents are entered into) that
notwithstanding anything contained herein or contained in the Commercial
Tenancies Act (Ontario) or any other statute which may hereafter be passed to
take the place of the said Act, or to amend the same, none of the goods or
chattels of the Tenant at any time during the continuance of the term hereby
created on the Leased Premises shall be exempt from levy by distress for rent in
arrears by the Tenant as provided for by any section or sections of the said Act
above-named, or any amendment or amendments thereto, and that upon any claim
being made for such exemption by the Tenant or on distress being made by the
Landlord this covenant and agreement may be pleaded as an estoppel against the
Tenant in any action brought to test the right to the levying upon any such
goods as are named as exempted in said section or sections or amendment or
amendments thereto, the Tenant waiving, as it hereby does, all and every benefit
that could or might have accrued to it under and by virtue of the said section
or sections of the said Act or any amendment or amendments thereto for the above
covenant.
17. BANKRUPTCY OR INSOLVENCY OF TENANT
(a) If the Tenant shall be adjudicated a bankrupt or adjudged to be
insolvent, or a receiver or trustee of the Tenant's property and
affairs shall be appointed or if the Tenant shall make an assignment
for the benefit of creditors in bankruptcy or applies for the
appointment of a receiver or if any execution or attachment shall be
issued against the Tenant or any of the Tenant's property whereupon
the Leased Premises or any portion thereof shall be taken or
occupied or attempted to be taken or occupied by someone other than
the Tenant and such execution, petition or attachment shall not be
set aside, vacated, discharged, disputed by legal proceedings or
bonded within seven (7) days after the issuance of same or if the
Tenant attempts to make a bulk sale or move the bulk of its fixtures
out of the Leased Premises then, in any of such events, the then
current month's rent and rent for the next three (3) ensuing months
shall immediately become due and be paid and this Lease may at the
option of the Landlord be cancelled and terminated, whether or not
the term has commenced or whether or not any rent has been prepaid.
For the purpose of this Lease accelerated rent shall include all
amounts payable by the Tenant as rent and additional rent and shall
be calculated on the basis of the average of the amounts thereof so
paid by or payable by the Tenant for each month during the period of
twelve (12) months immediately preceding such termination or during
the expired term of this Lease if less than twelve (12) months. If
this Lease shall be so cancelled and terminated, neither the Tenant
nor any person claiming through or under the Tenant by virtue of any
statute or order of any Court shall be entitled to possession or to
remain in possession of the Leased Premises but shall forthwith quit
and surrender the Leased Premises, and the Landlord, in addition to
other rights and remedies the Landlord has by virtue of any other
provisions of this Lease or of any statute or rule of law, may
retain on account of liquidated damages any rent, security, deposit
or moneys received by it from the Tenant or other on behalf of the
Tenant.
(b) In the event of termination of this Lease under subparagraph (a) of
this paragraph 17, the Landlord shall be entitled to recover
forthwith from the Tenant as liquidated damages an amount equal to
the amount by which:
(i) an amount equal to the product obtained by multiplying the
average of the amounts paid or
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payable by the Tenant as rent and additional rent for each
month during the period of twelve (12) months immediately
preceding such termination or during the expired term of this
Lease, if less than twelve (12) months, multiplied by the
number of months then constituting the unexpired portion of
the term in respect of which rent shall not have been paid,
exceeds
(ii) the amount of the rental value of the Leased Premises at the
time of termination for the term equal to the unexpired
portion of the term both of such amounts discounted at the
rate of 5% per annum to present worth.
(c) In determining the rental value of the Leased Premises for the
purpose of subparagraph (b) of this paragraph 17, the rental
realized by any re-letting, if such re-letting be accomplished by
the Landlord within a reasonable time after termination of this
Lease, shall be deemed prima facia to be the rental value.
18. TRANSFER OF LEASE
(a) The Tenant, without the previous written consent of the Landlord,
which consent may not be unreasonably withheld, shall not assign
this Lease or sublet or part with possession of the Leased Premises
or any part thereof. The Tenant hereby waives its right to the
benefit of any present or future Act of the Legislature of Ontario
which would allow the Tenant to assign this Lease or sublet the
Leased Premises without the Landlord's consent. The Tenant shall not
grant any concession or enter into any licence or franchise to use
the Leased Premises or any part thereof.
(b) Notwithstanding anything contained herein or contained in the
Commercial Tenancies Act (Ontario) or any other statute which may
hereafter be passed to take the place of the said Act, or to amend
the same, the Landlord shall not be deemed to be unreasonable in
withholding its consent in the event that the proposed material or
substantial change in the use of the Leased Premises to now which is
more injurious, as decided upon by the Landlord acting reasonably,
than that of the Tenant, in which event it may arbitrarily withhold
such consent, and in any event may arbitrarily withhold such consent
unless and until the proposed assignee or sublessee shall have
agreed in writing with the Landlord to assume and perform each of
the covenants and obligations of the Tenant in this Lease insofar as
the same pertain to the portion of the Leased Premises being
assigned or subletted.
(c) Notwithstanding any consent to assignment or sublease, the Tenant
shall remain fully liable under this Lease and shall not be released
from performing any of its covenants, obligations or agreements in
this Lease and shall continue to be bound by this Lease.
(d) If there is a permitted transfer of this Lease, either by assignment
or sublet, the Landlord may collect the rents from the assignee,
sub-tenant or occupant, all of the foregoing being hereinafter
collectively referred to as the "Transferee", and to apply the net
amount collected to the rent required to be paid pursuant to this
Lease, and no acceptance by the Landlord of any payment by the
Transferee shall be deemed a waiver of this covenant, or the
acceptance of the Transferee as tenant, or a release of the Tenant
from the further performance by the Tenant of the covenants,
obligations and agreements on the part of the Tenant herein
contained. Any document or consent evidencing such transfer of this
Lease, if permitted or consented to by the Landlord, shall be
subject to the Landlord's solicitors, acting reasonably, and all
legal costs with respect thereto shall be paid by the Tenant to the
Landlord forthwith upon demand as additional rent.
(e) If the Tenant intends to effect a transfer as aforesaid, either by
assignment or sublet, then and so often as such event shall occur,
the Tenant shall give prior written notice to the Landlord of such
intent, specifying therein the proposed Transferee providing such
information with respect thereto, including without limitation,
information concerning the principals thereof, and as to any credit,
financial or business information relating to the proposed
Transferee as the Landlord or a mortgagee requires, and the Landlord
shall, within thirty (30) days after receipt of all information
which is required by it, notify the Tenant in writing either that it
consents or does not consent in accordance with the provisions and
qualifications of this paragraph 18.
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(f) If the party originally entering into this Lease as Tenant, or any
party who subsequently becomes the Tenant by way of assignment or
sublease or otherwise as provided for in this Lease, is a
corporation then:
(i) the Tenant and the Indemnifier shall, upon request, provide
the Landlord with such information as to the Tenant's or the
Indemnifier's financial standing and corporate organization as
the Landlord reasonably requires, including the most recent
financial statements of the Tenant and the Indemnifier.
(ii) The Tenant and the Indemnifier shall each provide to the
Landlord financial statements prepared by an independent
chartered accountant within two (2) weeks of request for same
by the Landlord.
19. XXXXXXXX'S ADDITIONAL RIGHTS TO TERMINATE AND RE-LET
(a) In the event of the sale by the Landlord of the complex and to the
extent that such purchaser shall have assumed the covenants and
obligations of the Landlord hereunder, by written agreement made in
favour of the Tenant, the Landlord shall, without further written
agreement, be freed and relieved of liability upon such covenants
and obligations. The Tenant shall from time to time at the request
of the Landlord certify or acknowledge to any mortgagee, purchaser,
lessee or assignee, as to the status and validity of this Lease and
the state of the Landlord and Xxxxxx's account hereunder.
(b) If the Leased Premises are expropriated or condemned by any
competent authority and upon payment by the Landlord to the Tenant
of a pro rata share of the proceeds that Landlord has or will
receive in respect of such expropriation or condemnation which are
attributable to the Tenant's leasehold improvements:
(i) the Landlord shall have the right to terminate this Lease by
giving ninety (90) clear days' notice in writing to the
Tenant; or
(ii) the Landlord may require the Tenant to vacate the Leased
Premises within thirty (30) days from payment by the Landlord
to the Tenant of a bonus equal to three months' rent, but
payment of the said bonus shall be accompanied or preceded by
written notice from the Landlord to the Tenant advising of the
Landlord's intent to exercise this option.
(c) The Tenant agrees to permit the Landlord during the last three
months of the term of this Lease to display "For Rent" or "For Sale"
signs or both at the Leased Premises (but not at the entrance of the
Leased Premises) and to show the Leased Premises to prospective new
tenants or purchasers and to permit anyone having written authority
of the Landlord to view the Leased Premises at reasonable hours.
20. NOTICES
Any written notice provided for in this Lease shall be effectually
given to the Landlord by registered mail addressed to or by delivery to the
Landlord at the following address:
1249462 ONTARIO LIMITED
0 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
and to the Tenant by registered mail addressed to or by delivery to the Tenant
at the Leased Premises and every such notice shall be deemed to have been given
upon the day it was so mailed or delivered. Provided any notice as aforesaid may
be transmitted by facsimile transmission provided the original thereof is as
well sent by ordinary mail, postage
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prepaid, and in such event shall be deemed to have been received on that date of
transmission.
21. SUBORDINATION
Subject to the terms of Section 3 of Schedule "B" attached hereto,
this Lease and all rights of the Tenant hereunder are subject and subordinate to
all mortgages, or deeds of trust or liens which may now or at any time hereafter
effect the Leased Premises in whole or in part or the complex in whole or in
part and whether or not any such mortgages or deeds of trust or liens shall
affect only the Leased Premises or the complex then this Lease and the rights of
the Tenant hereunder will be subject and subordinate to all advances made or to
be made under the security of such mortgages, deeds of trust or liens. The
Tenant covenants and agrees at any time upon notice for the Landlord to attorn
to and become a tenant of any mortgagee or trustee under any such mortgage or
deed of trust upon the same terms and conditions as are in this Lease. In
confirmation of such subordination and agreement to attorn, the Tenant shall
execute promptly upon request by the Landlord any certificates, instruments of
postponement or attornment or other instruments which may from time to time be
requested to give effect thereto.
22. CONTINUATION OF LEASE
In the event that the Tenant remains in possession of the Leased
Premises after the expiration of the term without objection by the Landlord and
without written agreement otherwise providing, the Tenant shall be deemed to be
a tenant from month to month, and subject otherwise to the provisions of this
Lease insofar as the same are applicable, except that the basic rent will be
automatically increased by twenty (20%) percent. PROVIDED that if without the
consent or approval of the Landlord or the acceptance of rent by the Landlord,
the Tenant shall continue to occupy the Leased Premises, the Landlord may cause
it to vacate without notice and with no recourse to legal proceedings and may
forcibly eject the Tenant and its belongings and in exercising the foregoing
right to the landlord shall not be liable to the Tenant for damages or injuries
to persons howsoever caused, and the Tenant covenants and agrees with the
Landlord to indemnify and save the Landlord harmless from all claims and demands
of every nature and kind arising from or connected with such ejection.
23. NON-WAIVER
The waiver or acquiescence of the Landlord in default by the Tenant
under any paragraph, subparagraph, clause or subclause of this Lease shall not
be deemed to be a waiver of such paragraph, subparagraph, clause or subclause or
any subsequent or other default hereunder.
24. WORK
(a) All work performed by the Tenant and the Landlord upon the Leased
Premises shall be done in a good and workmanlike manner and with
first class materials, shall accord with all applicable laws,
orders, regulations and requirements of all government and other
authorities having jurisdiction, shall be done in compliance with
such reasonable rules and regulations as the Landlord or its agents
or contractors may make, shall be done in such manner as not to
interfere reasonably with any work being done by the Landlord upon
the Leased Premises or in other portions of the complex, shall be
subject to the reasonable supervision of the Landlord or its agents
or contractors.
(b) The Tenant shall pay promptly all sums due for materials and work
supplied or done in connection with its work upon the Leased
Premises so as to minimize the possibility of mechanics' liens or
other similar liens being registered or claimed against any of the
land of the Landlord with respect thereto. If at any time a lien in
respect of materials, work or services supplied to or for the Tenant
or its contractors in respect of the Leased Premises shall be
registered against any of the lands of the Landlord, or notice
thereof shall be given to the Landlord, or to a mortgagee or
purchaser of any of the lands of the Landlord, or an action shall be
commenced in respect of any such lien, or a certificate of action is
registered, the Tenant shall forthwith have such registration
vacated and such action discontinued. Unless such registration is
vacated and such notice withdrawn or such action
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discontinued within fourteen (14) days of such registration, notice
or commencement of action, as the case may be, the Landlord may:
(i) terminate this Lease by written notice to the Tenant; or
(ii) pay, in the name of the Tenant, the amount of the lien, and
costs into court, whereupon the Tenant shall forthwith pay to
the Landlord the amount so paid by the Landlord plus all costs
incurred by the Landlord in connection therewith.
(c) The Tenant shall furnish to the Landlord all certificates, approvals
and evidences of payment with respect to work done and installations
made upon the Leased Premises that may be required by any relevant
authority or may be reasonably required by the Landlord.
(d) In the event of any dispute between the Landlord and the Tenant as
to whether the provisions of subparagraphs (a), (b) and (c) of this
paragraph 24 have been met, the certificate of the Landlord's
architect shall be conclusive.
(e) If an excavation shall be made upon the lands adjacent to the Leased
Premises or the building, or shall be authorized to be made, the
Tenant shall afford to the person making or authorized to make such
excavation, licence to enter upon the Leased Premises for the
purposes of doing such work as the Landlord shall deem necessary to
preserve any wall of the Leased Premises or the building from injury
or damage and to support the same by proper foundations, without any
claim for damages or indemnification against the Landlord or
diminution or abatement of rent.
25. RIGHTS OF ENTRY
(a) The Landlord and any person authorized by the Landlord shall have
the right to use, install, maintain and/or repair pipes, wires,
ducts or other installations in, under, over or through the Leased
Premises for or in connection with the supply of any services to the
Leased Premises, the building or any other premises or building in
the complex. Such services shall include, without limiting the
generality of the foregoing, gas, electricity, water, sanitation,
heat, ventilation and air-conditioning.
(b) When necessary by reason of accident or other cause or in order to
make any repairs, alterations, improvements or additions in or
relating to the Leased Premises or the building or to other portions
of the complex, the Landlord may cause such reasonable and temporary
obstruction of common facilities as may be necessary and may
interrupt or suspend the supply to the Leased Premises and the
building of electricity, water and other services where necessary
until such repairs, alterations, improvements or additions shall
have been completed. There shall be no abatement in rent because of
any such obstruction, interruption or suspension provided that such
repairs, alterations, improvements or additions are made as
expeditiously as is reasonably possible.
(c) The Landlord or its agents shall have the right to enter upon the
Leased Premises at all reasonable times to view the state of repair,
condition and use thereof and to make such decorations, repairs,
alterations, improvements or additions as it may deem advisable and
the Landlord or its agents shall be allowed to take all material
into and upon the Leased Premises that may be required therefor
without the same constituting an eviction of the Tenant in whole or
in part. The rent shall not xxxxx while such decorations, repairs,
alterations, improvements or additions are being made by reason of
loss or interruption of the business of the Tenant because of the
prosecution of any such work, provided that the same are made as
expeditiously as is reasonably possible.
(d) The Landlord shall not be liable to the Tenant for any interference
or inconvenience caused by additional construction permitted under
this Lease, provided such additional construction is carried out as
expeditiously as is reasonably possible.
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26. XXXXXXXX'S AND TENANT'S WORK
The Landlord shall, subject to the terms of this Lease, perform all
work designated as "Landlord's Work" in accordance with Schedule "B" of this
Lease. All work shall be carried out by the Landlord using the Landlord's
standard workmanship and materials with colours to be chosen from the Landlord's
samples.
Upon seven (7) days written notice from the Landlord to the Tenant
that the "Landlord's Work" is complete, or substantially complete to the extent
that the Tenant can reasonably commence the "Tenant's Work", the Tenant will
enter upon the Leased Premises to complete the work designated as "Tenant's
Work" in accordance with the terms and conditions denoted on Schedule "B" of
this Offer.
The Tenant will submit to the Landlord for the Landlord's written
approval, two (2) complete sets of detailed working drawings and specifications
(the "Plans") for the Tenant's Work. Such submission shall be made in writing
fifteen (15) days from the date of acceptance of this Offer so as not to delay
the commencement of the Landlord's Work or the Tenant's Work. The Tenant's Work
will be performed at the expense of the Tenant by contractors, subcontractors
and workmen engaged by the Tenant and whose labour union affiliations, if
applicable, are compatible with others in the Project. The Landlord shall have
the right to approve the Tenant's workmen prior to the commencement of any work
in the Leased Premises and shall have the right to require that all or part of
the Tenant's Work be performed by an affiliate of the Landlord so long as the
Tenant pays a commercially reasonable fee for the Tenant's Work performed by
such affiliate. Prior to occupying the Leased Premises the Tenant shall obtain
all of the necessary approvals and permits for all of the Tenant's Work,
including an occupancy permit.
Notwithstanding the foregoing, the Landlord may, upon reasonable
notice to the Tenant, require the Tenant to perform parts of the Tenant's Work
prior to the completion of the Landlord's Work in any case where the nature of
state of the work is such that the Landlord considers it necessary or desirable
to do so. The Landlord may require that all structural, mechanical, electrical
and other base building systems work to be done with respect to the Leased
Premises by or on behalf of the Tenant be carried out by the Landlord's
contractors and employees at the Tenant's expense and repayable by the Tenant to
the Landlord upon demand as Additional Rent.
Any additional equipment supplied or work performed by the Landlord
specifically for the Tenant and any excess or additional cost in the Landlord's
Work occasioned by the Tenant's requirements or revision to such requirements
will be paid by the Tenant to the Landlord upon completion of the work and
presentation of the Landlord's invoice therefore.
The Landlord shall have the right, at the Landlord's cost, if any,
to alter the shape or dimensions of the Leased Premises and/or to relocate the
Leased Premises within the building and the lands provided that the Leased
Premises as altered or relocated shall be substantially the same in size and
shall be in all other material respect reasonably comparable to the Leased
Premises shown outlined in Schedule "A" hereto. The Landlord shall also have the
right to alter or relocate any other components of the building and the lands.
27. RENEWAL
If the Tenant duly and regularly pays the rent and performs all of
the covenants contained in this Lease on the part of the Tenant, then the
Landlord will, upon the expiration of the term, grant to the Tenant a renewal of
this Lease for two further terms of five (5) years each as hereinabove set
forth, PROVIDED that in order to exercise this renewal option, the Tenant shall
be required to give to the Landlord written notice thereof delivered not less
than three (3) months before the expiration of the term. Any renewal pursuant to
this provision shall be on the same terms and conditions contained herein,
except there shall be no further right of renewal and that the rent payable by
the Tenant shall be fair market rental for similar premises at that time, and
failing agreement, rent is to be set in accordance with the Arbitration Act
(Ontario); provided that in no event shall the rent be less than that provided
for in this Lease for the last year of the original term.
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28. SUCCESSORS AND ASSIGNS
It is hereby expressly agreed that these presents and all rights,
advantages, privileges, powers and things hereby secured to the parties hereto
shall be fully secured to, binding upon and exercisable by the respective
successors and assigns, and all parties claiming by, through or under them or
any of them and that all covenants, liabilities and obligations entered into by
or imposed hereunder upon the parties hereto shall be equally binding upon the
respective successors and assigns and wherever in these presents reference is
made to "person" or "persons" such expression shall be construed to include
individuals, firms, syndicates, companies, corporations and trustees and where
the context may require, the singular shall include the plural and the masculine
shall include the feminine and neuter. If any paragraph, subparagraph, clause or
subclause in this Lease shall be judicially held invalid or unenforceable the
remainder of this Lease shall be interpreted as if such paragraph, subparagraph,
clause or subclause had not been included.
The covenants by the Tenant and the Indemnifier, if more than one
person, firm or corporation, are hereby declared to be joint and several. The
word "Tenant" or Indemnifier" (as the case may be) is deemed to be taken to mean
each and every person or party mentioned as Tenant or Indemnifier herein (as the
case may be), whether one or more, and if there is more than on Tenant or
Indemnifier, any notice required under this Lease may be given by or to any one
of them, and has the same force and effect as if given by or to all of them.
29. INDEMNIFIER
In consideration of the Landlord's accepting this offer, the
Indemnifier agrees:
(a) To guarantee the obligations of the Tenant pursuant hereto.
(b) To indemnify the Landlord against any losses, damages and costs
incurred by the Landlord as a result of any default by the Tenant
pursuant hereto.
(c) If the Tenant fails to do so as and when required, to perform all
obligations of the Tenant pursuant to the terms of this Lease.
(d) In the event of the termination of this Lease to be executed
pursuant hereto as a result of the default of the Tenant or
following bankruptcy of the Tenant, at the option of the Landlord to
enter into a new agreement to Lease and Lease for what would have
been the balance of the Term but for such termination on the same
terms as would have applied to the balance of the Term but for such
termination.
(e) To execute, withing fifteen (15) days after request by the Landlord,
the Landlord's form of indemnity agreement containing, inter alia,
all of the foregoing provisions, it being agreed that until
execution thereof, in addition to the Landlord's other rights, the
Landlord shall have such rights against the Indemnifier as if such
indemnity agreement had been executed and delivered to the Landlord.
30. DUE AUTHORIZATION
The Landlord and the Tenant covenant that each of them has all
requisite power and possesses all licences, franchises, permits, consents and
other rights and authorizations necessary to enable each of them to enter into
this Lease contemplated hereby. The Tenant covenants, represents and warrants
that it is not a party to any agreement which would restrict or covenant which
would prevent the Tenant from opening the Leased Premises for business and
operating same throughout the term for the purposes set out herein.
31. SEVERABILITY
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance is to any extent held or rendered invalid,
unenforceable or illegal, the remainder of this Lease or the application of such
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term, covenant or condition to persons or circumstances other than those with
respect to which it is held invalid, unenforceable or illegal, is not affected
thereby and continues to be applicable and enforceable to the fullest extent
permitted by law.
32. POST-DATED CHEQUES AND DEPOSIT
Provided further that upon the execution of this Lease, the Tenant
will deliver to the Landlord a series of twelve (12) post-dated cheques payable
to the Landlord or according to the Landlord's direction, covering the month]y
instalments of rent falling due in the first year of the term created hereunder
and thereafter on or before each anniversary of the commencement date of this
Lease, the Tenant will forward to the Landlord, or its nominee, a further series
of twelve (12) post-dated cheques in respect of rent falling due in the next
ensuing year, payable to the Landlord or according to the Landlord's direction.
The Tenant hereby deposits with the Landlord the amount set out as "Deposit" in
Section 2(f), which shall be held by the Landlord without interest and applied
as hereinbefore stated.
33. FORCE MAJEURE
Notwithstanding anything contained in this Lease, neither party
shall be deemed in default with respect to the performance of any of the terms,
covenants and conditions of this Lease, if such default is due to any strike,
lock-out, civil commotion, warlike operation, invasion, rebellion, hostilities,
military or usurped power, sabotage, government regulations or controls,
inability to obtain any material or service, an act of God or other cause beyond
the control of such party.
34. ALL REMEDIES AVAILABLE
The Tenant covenants and agrees that all remedies available to the
Landlord if the Tenant fails to pay rent or any instalment thereof (whether such
remedies are provided by the terms of this Lease or otherwise) shall also be
available to the Landlord if the Tenant fails to pay any other amount it is
required to pay under the terms of this Lease.
35. NO OTHER RELATIONSHIP
It is understood and agreed that neither the provisions of this
Lease nor any acts of the parties hereto shall be deemed to create any
relationship between the parties hereto other than the relationship of landlord
and tenant.
36. TIME OF THE ESSENCE
Time shall be of the essence of this Lease except as specified
herein.
37. AMENDMENT
This Lease may not be modified or amended except by an instrument in
writing signed by the parties hereto or by their successors and assigns.
38. ENTIRE AGREEMENT
This Lease constitutes the entire agreement between the Landlord and
the Tenant and neither party is bound by any representation, warranty, promise,
agreement or inducement not embodied herein.
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39. GOVERNING LAW
This Lease shall be governed by and construed according to the laws
of the Province of Ontario.
IN WITNESS WHEREOF the parties hereto have hereunto executed this
agreement.
LANDLORD: 1249462 ONTARIO LIMITED
Per: /s/ Xxx Xx Zen
------------------------------------------
Xxx Xx Zen
President
I have the authority to bind the corporation.
TENANT: TASTY SELECTIONS INC.
Per: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxxx
President
I have the authority to bind the corporation.
INDEMNIFIER: INTERNATIONAL MENU SOLUTIONS INC.
Per: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
President
I have the authority to bind the corporation.
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SCHEDULE "A"
SUITE 103
[Floor Plan Omitted]
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SCHEDULE "B"
TENANT'S WORK
1. Add one shipping door
2. Make up air system
3. Kitchen hood
4. Upgrade washroom and lunchroom
5. Floor drains
6. Other miscellaneous items as required
Any and all renovations and additions to be forwarded in writing to the
Landlord for its approval, not to be unreasonably withheld. All architectural
and mechanical drawing's required as a result of tenant's work to be completed
and forwarded to building department for proper approval, prior to commencement
of any work to the existing unit.
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SCHEDULE "C"
SPECIAL PROVISIONS
1. The Landlord shall use reasonable efforts to obtain a written
Non-Disturbance Agreement under seal from any mortgagee or other
encumbrancer of the complex who has, or may in the future have (if the
Landlord remains owner of the building), priority to the Tenant's
leasehold interest in the Leased Premises. Such Non-Disturbance Agreement
shall provide that notwithstanding the exercise of any rights by any such
mortgagee or other encumbrancer, so long as the Tenant is not then in
default, the Tenant shall be entitled to remain undisturbed in its
possession of the Leased Premises, subject to the terms and conditions of
the Lease. The Tenant will not be required to subordinate or postpone this
Lease nor to attorn to any mortgagee or encumbrancer unless the Landlord
has obtained such Non-Disturbance Agreement.
