Exhibit 10.3
THIS INDENTURE made the 12th day of February, 1993.
BETWEEN:
ORLANDO CORPORATION
a company incorporated under the
laws of the Province of Ontario
(Hereinafter called the "Landlord"),
OF THE FIRST PART;
- and -
EXCELLE BRAND FOODS CORPORATION
a company incorporated under the
laws of the Province of Ontario
(Hereinafter called the "Tenant"),
OF THE SECOND PART;
ARTICLE I - DEMISE AND TERM
Premises
1.01 WITNESSETH that in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of the
Tenant to be paid, observed and performed, the Landlord does
demise and lease unto the Tenant and the Tenant leases from the
Landlord, the Leased Premises.
Term
1.02 To have and to hold the Leased Premises for and during the
term of 10 years commencing on the 15th day of March, 1993 and
ending on the 14th day of March, 2003 and ending on the 14th day
of March, 2003.
Option to Renew
1.03 If not then in default the Tenant shall have the option to
renew the Lease for two consecutive terms of five (5) years each
upon the same terms and conditions contained in this Lease
except:
(a) there shall be no further right to renew after the second
renewal term; and
(b) the Basic Rent payable by the Tenant during each
renewal period shall be fair market rent as of the date
of commencement of the renewal term based on similar
term, premises and location as for the Leased Premises,
provided in no event shall the Basic Rent for the
renewal period be less than as provided for in the
immediately preceding period. If the Landlord and the
Tenant cannot agree on the Basic Rent for the renewal
term at least ninety (90) days prior to the
commencement of the renewal term, the Basic Rent for
such renewal period shall be determined by arbitration
as hereinafter set out:
Each of the Landlord and Tenant shall at once agree upon the
appointment of an arbitrator and shall submit the dispute to
the arbitrator for determination in accordance with the
provisions of the Arbitrations Act of Ontario. The decision
of the arbitrator so appointed shall be final and binding
upon the Landlord and Tenant who covenant one with the other
that such dispute shall be decided by arbitration alone and
not by recourse to any court by action at law. If within a
reasonable time the Landlord and Tenant do not agree upon an
arbitrator, the arbitrator may, upon petition of either the
Landlord or the Tenant, be appointed by a judge of the
Ontario Court (General Division). The cost of arbitration
shall be apportioned between the Landlord and the Tenant
equally.
In order to exercise each renewal option, the Tenant shall be
required to give notice to the Landlord thereof in writing not less
than twelve (12) months prior to the expiry of the initial Term of the
Lease in the case of the first renewal option and not less than twelve
(12) months before the expiry of the first renewal term in the case of
the second renewal option.
Acceptance
of Premises
1.04 The Tenant shall examine the Leased Premises before taking
possession hereunder and such taking of possession shall be
conclusive evidence as against the Tenant that at the time
thereof the Leased Premises were in good order and satisfactory
condition and that all promises, representations and undertakings
by or binding upon the Landlord with respect to any alteration,
remodeling or decorating of or installation of fixtures in the
Leased Premises, have been fully satisfied and performed by the
Landlord. The Tenant acknowledges that the existing leasehold
improvements, if any, are acceptable and that the Tenant is
taking possession of the Leased Premises as is, subject to the
provisions of Schedule "D" hereto and Section 6.04 herein.
ARTICLE II - LANDLORD AND TENANT COVENANTS
Landlord Covenants
2.01 If the Tenant pays the Rent hereby reserved and performs the
covenants herein on its part contained, the Tenant shall and may
peaceably possess and enjoy the Leased Premises for the Term
hereby granted without any interruption or disturbance from the
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Landlord or any other person or persons lawfully claiming by,
from or under the Landlord.
Tenant Covenants
2.02 The Tenant covenants to pay Rent and all other charges
provided for in this Lease on their due dates and to observe and
perform all of the covenants and provisions of this Lease on its
part to be observed and performed.
ARTICLE III - RENT
Intent of Lease
3.01 This is a carefree net lease to the Landlord, except as
expressly hereinafter set out and it is the mutual intention of
the parties hereto that the Basic Rent herein provided to be paid
shall be net to the Landlord clear of all taxes, costs and
charges arising from or relating to the Leased Premises, save as
hereinafter expressly set out. Charges of a kind personal to the
Landlord such as taxes assessed on the income of the Landlord,
estate, capital, and inheritance tax and similar taxes and
principal and interest payments to be made by the Landlord in
satisfaction of mortgages now or hereinafter registered against
the Leased Premises shall not be the responsibility or obligation
of the Tenant.
Basic Rent
3.02 Yielding and saying therefor yearly and every year during
the Term unto the Landlord as Basic Rent for the Leased Premises
the following amounts:
(a) For year 1 of the Term (commencing June 15th, 1993 and
ending June 14th, 1994) the sum of $100,000.00 of lawful
money of Canada to be paid in advance in equal monthly
instalments of $8,333.33 an the first day of each and every
month during this portion of the Term; and
(b) For years 2 to 5 inclusive of the Term (commencing June
15th, 1994 and ending June 14th, 1998) the sum of
$149,496.00 of lawful money of Canada to be paid in advance
in equal monthly instalments of $12,458.00 on the first day
of each and every month during this portion of the Term; and
(c) For years 6 to 10 inclusive of the Term (commencing June
15th, 1998 and ending March 14th, 2003) the sum of
$224,244.00 of lawful money of Canada to be paid in advance
in equal monthly instalments of $18,687.00 on the first day
of each and every month during this portion of the Term.
The first payment of Basic Rent shall be made on the 15th day of June, 1993.
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If the Term commences on any day other than the first or ends on
any day other than the last day of a month, Basic Rent and Additional
Rent for the fractions of a month at the commencement and at the end
of the Term shall be adjusted pro rata on a per diem basis.
Additional Rent
3.03 The Tenant shall pay Additional Rent due and owing to the
Landlord within ten (10) days of written demand therefor or as
otherwise hereinafter expressly set out and all other Additional
Rent on the due date thereof. Additional Rent shall commence to
accrue as of the commencement date of the Term.
Deposit
3.04 The Landlord acknowledges receipt of the sum of $27,603.31
being:
(a) $8,333.33 to be held without interest by the Landlord and to
be applied on account of the Basic Rent for the first month
of the Term; and
(b) $18,687 to be held by the Landlord as security for the full
and faithful performance by the Tenant of all the
agreements, terms, covenants and conditions herein set forth
and applied against expenses or other costs or damages
incurred by the Landlord and to be payable as liquidated
damages and not as penalty, upon forfeiture, default or
early termination without prejudice to any further claims by
the Landlord for damages and any remedy for recovery
thereof. In the event the Tenant observes and performs the
terms and conditions of this Lease, such money shall be
applied on account of Basic Rent for the last month of the
Term. The Landlord shall accrue interest on the amount set
out in this subparagraph at the rate of 5% per annum, which
amount shall be credited to the Tenant at the expiration of
the Term.
Payments to Landlord
3.05 All payments to be made by the Tenant to the Landlord under
this Lease shall be made at the address hereinafter designated
or, at such other place or places as the Landlord may designate
in writing, and to the Landlord or to such agent of the Landlord
as the Landlord shall from time to time direct.
Overdue Rent
3.06 The Tenant shall pay the Landlord interest on all overdue
Rent, all such interest to be calculated from the date upon which
the amount is first due hereunder until actual payment thereof
and at a rate being the lesser of five percent (5%) per annum in
excess of the minimum lending rate to prime commercial borrowers
charged by the Landlord's bank from time to time and the rate
permitted by law.
Set-Off
3.07 All Rent payable by the Tenant to the Landlord shall be paid
without deduction, set-
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off or abatement except as expressly hereinafter provided.
Adjustments
3.08 Upon the termination of this Lease other than by reason of
default of the Tenant, the Landlord and Tenant shall pro-rate,
adjust, apportion and allow between themselves all items of
Taxes, insurance, water rates and other matters of a similar
nature, to the intent and purpose that the Tenant shall bear the
burden thereof until it shall deliver up possession on the
termination of this Lease or of any holding over hereunder and
not afterwards.
ARTICLE IV - TAXES
Taxes Payable
by Landlord
4.01 The Landlord shall pay the Taxes charged on the Leased
Premises to the applicable taxing authority, subject to
reimbursement by the Tenant as hereinafter set out. The Landlord
shall have no obligation to contest or litigate the imposition of
any Taxes.
Taxes Payable
by Tenant
4.02 The Tenant shall pay as Additional Rent, the amount
calculated by multiplying the assessment for the Leased Premises
by the applicable mill rate, which amount shall, for the purposes
of this paragraph only and notwithstanding anything else herein
contained, be the Tenant's "Proportionate Share" of Taxes for the
Leased Premises. In the first year of the Term only, the Tenant
shall be responsible for Taxes in respect of 50,000 square feet
of the Leased Premises only.
Tenant's Business
and Other Taxes
4.03 In addition to the Taxes payable by the Tenant pursuant to
Section 4.02, the Tenant shall pay to the lawful taxing
authorities in the case of taxes payable pursuant to paragraph
(a) and (b) hereof and to the Landlord in the case of taxes
payable pursuant to paragraph (c) hereof:
(a) all taxes, rates, duties, assessments and other charges that
are levied, rated, charged or assessed against or in respect
of all improvements, requirement and facilities of the
Tenant on or in the Leased Premises, the Lands or the
Building or any part thereof; and
(b) every tax and license fee which is levied, rated, charged or
assessed against or in respect of and every business carried
on in the Leased Premises or in respect of the
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use or occupancy thereof or any part of the Lands or the Building
by the Tenant and every sub-tenant or licensee of the Tenant and
whether in any case, any such taxes, rates, duties, assessments or
license fees are rated, charged or assessed by any federal, provincial,
municipal, school or other body during the Term; and
(c) the full amount of any taxes in the nature of a business transfer tax,
value added tax, sales tax or any other tax levied, rated, charged or
assessed in respect of the Rent payable by the Tenant under this Lease
or in respect of the rental of space under this Lease, whether
characterized as a goods and services tax, sales tax, value added tax,
business transfer tax or otherwise.
Payment
of Taxes
4.04 (a) The Landlord shall be entitled at any time or times in
any Year, upon at least fifteen (15) days notice to the
Tenant to require the Tenant to pay to the Landlord the
Tenant's Proportionate Share of the Taxes for such Year
in equal monthly instalments. Such monthly amount
shall be determined by dividing the Tenant's
Proportionate Share of Taxes by the number of months
for the period from January lst in each Year of the
Term until the due date of the final instalment of
Taxes as established by the applicable taxing authority
from time to time in each Year ("Instalment Period")
and shall be paid by the Tenant to the Landlord,
monthly as Additional Rent, on the date for payment of
monthly rental payments during the Instalment Period.
The Landlord shall be entitled subsequently during such
Year, upon at least fifteen (15) days notice to the
Tenant, to revise its estimate of the amount of
increase in such Taxes and the said monthly instalment
shall be revised accordingly. All amounts received
under this provision in any Year on account of the
estimated amount of such Taxes shall be applied in
reduction of the actual amount of such Taxes for such
Year. If the amount received is less than the Tenant's
Proportionate Share of the actual Taxes, the Tenant
shall pay any deficiency to the Landlord as Additional
Rent within fifteen (15) days following receipt by the
Tenant of notice of the amount of such deficiency. If
the amount received is greater than the Tenant's
Proportionate Share of the actual Taxes, the Landlord
shall either refund the excess to the Tenant as soon as
possible after the end of the Year in respect of which
such payments were made or, at the Landlord's option,
shall apply such excess against any amounts owing or
becoming due to the Landlord by the Tenant.
(b) Taxes payable pursuant to Section 4.03 (a) and (b)
shall be paid by the Tenant when due if separate tax
bills are issued and otherwise shall be paid to the
Landlord within ten (10) days written demand therefor;
and
(c) Taxes payable pursuant to Section 4.03 (c) shall be paid to the
Landlord
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within ten (10) days written demand therefor or at such time or
times as the Landlord from time to time determines by notice in
writing to the Tenant.
(d) if the Term of this Lease commences or ends on any day
other than the first or last day, respectively, of a
Year, the Tenant shall be liable only for the portion
of the Taxes for such Year as falls within the Term,
determined on a per diem basis.
Appeal of Assessment
4.05 The Tenant shall have the right to contest at its own
expense (and in the name of the Landlord, if necessary) by
appropriate legal proceedings the validity of any Taxes and if
the payment of such Taxes may legally be held in abeyance without
subjecting the Landlord to any liability of whatever nature for
failure to so pay, the Tenant may postpone such payment until the
formal determination of any such proceedings provided they be
prosecuted with all due diligence and dispatch. The Landlord
shall execute all powers of attorney and other documents or
proceedings necessary or useful in order to permit the Tenant to
contest, at its own expense in its own name or in the Landlord's
name, the validity of any Taxes. Nothing herein shall oblige the
Tenant or the Landlord to contest the validity of such Taxes.
ARTICLE V - HEATING AND UTILITIES
Utility Charges
5.01 The Tenant shall pay to the suppliers thereof on the due
dates, all charges for telephone, electric current and all other
utilities supplied to or used in connection with the Leased
Premises.
Heating
5.02 The Tenant shall maintain the temperature in the Leased
Premises at a reasonable level to avoid damage occurring in or to
the Leased Premises.
Service Contracts
5.03 The Tenant covenants and agrees to take out a standard
servicing contract with a capable company for the service and
maintenance of heating units and furnaces and air conditioning
equipment in the Leased Premises, such contract to include the
monthly cleaning of exchangers and the replacement of filters,
and to keep such contract in force for the Term of the within
Lease or any renewal thereof. The Tenant agrees to provide the
Landlord with a copy of the aforesaid servicing contract. In the
event that during the Term of the Lease or any renewal thereof,
any of the heating units, furnaces or air conditioning equipment
require replacement (unless such replacement is caused by the
Tenant's use of the Leased Premises), new units are to be
installed at the cost of the Landlord and the annual amortized
cost of such replacement, amortized over a period of 10 years,
shall be paid by the Tenant annually as Additional Rent to the
Landlord over the
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balance of the Term.
ARTICLE VI - MAINTENANCE, REPAIR AND ALTERATIONS
Repairs and
Replacements by Tenant
6.01 The Tenant shall make all necessary replacements to and
repair the Leased Premises in all respects both inside and
outside including repairing and replacing the drains and sanitary
sewers, repairing the heating and water apparatus,
air-conditioning and all fixtures and additions thereto in a
state of repair and condition to the same extent as would a
careful owner in occupation. For the first 5 years of the Term
the Tenant shall only be responsible for up to $5,000.00 per
annum in respect of any repairs to the roof of the Leased
Premises as determined by the Landlord acting reasonably and the
Landlord shall be responsible for the balance of such costs, if
any, over the aforesaid sum of $5,000.00. If the roof, in the
opinion of the Landlord acting reasonably, requires replacement
during the first 5 years of the Term, the Landlord shall replace
the roof at its cost and the Tenant shall pay the annual
amortized amount thereof, based on a 10 year amortization period,
to the Landlord as Additional Rent. In the event of any dispute
between the Landlord and the Tenant with respect to the need for
or extent of such repairs or replacements, the dispute shall be
settled by arbitration in the same manner as provided for in
Section 1.03 hereof. For the remainder of the Term and any
renewal term, the Tenant shall be fully responsible for all costs
associated with the repair or replacement of the roof of the
Leased Premises, maintenance by Tenant
Maintenance by Tenant
6.02 The Tenant shall at all times during the Term at its own
cost and expense keep or cause to be kept, the Leased Premises
well maintained, clean and tidy, including without limiting the
generality of the foregoing, keeping the Building properly
painted and decorated and otherwise presentable and of good
appearance, the driveways and parking areas free and clear of
snow and ice, and the lawn, trees and shrubs in good order and
condition, all to the standards of a first class industrial
building and in accordance with all the requirements of this
Lease and the reasonable requirements of the Landlord, its
insurers and governmental authorities having jurisdiction.
View and Repair
6.03 The Tenant shall allow the Landlord or its duly appointed
agent and work people at reasonable times on 48 hours prior
notice (except in cases of emergency in which case no notice
shall be required) to enter the Leased Premises and view the
state of repair and the Tenant shall repair as aforesaid
according to notice in writing, provided always that if the
Tenant shall not within fifteen (15) days after service of such
notice, commence and proceed diligently with the execution of the
repairs and works mentioned in such notice, it shall be lawful
for the Landlord to enter upon the Leased Premises and execute
such repairs and works and to charge the cost thereof to the
Tenant. In order to protect the
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confidentiality of the Tenant's business on the Leased Premises and
notwithstanding anything contained herein, it is agreed that a
representative of the Tenant shall be present at all such viewings and
neither the Landlord or its representatives shall be entitled to make any
type of reproductive matter relating to the Tenant's business
operations on the Leased Premises.
Repairs by Landlord
6.04 The Landlord shall be responsible for the repair and
replacement of the footings, foundations bearing walls,
structural columns and beams and roof frame only of the Leased
Premises unless such repairs or replacements are necessitated by
the negligence of the Tenant or those for whom in law it is
responsible.
Alterations
6.05 The Tenant shall not, without the prior written approval of
the Landlord make any installations, alterations, additions,
partitions, repairs or improvements in or to the Leased Premises,
including doing anything which might affect the structural
portions of the Leased Premises or the electrical, lighting,
heating, ventilating, air-conditioning, sprinkler, fire
protection or other systems therein; the Tenant's request for
approval shall be in writing and accompanied by an adequate
description of the contemplated work, and where appropriate,
working drawings and specifications therefor; the Landlord's
costs of having its architects, engineers or others examine such
drawings and specifications shall be payable by the Tenant upon
demand as Additional Rent; the Landlord may require that any or
all work to be done hereunder in respect of the link between the
two buildings comprising the Leased Premises and truck doors, be
done by the Landlord's contractors or workmen or by contractors
or workmen engaged by the Tenant but first approved by the
Landlord, and all work shall be subject to inspection by and the
reasonable supervision of the Landlord including a reasonable
supervision fee of the Landlord to be paid by the Tenant and
shall be performed in accordance with all laws and any reasonable
conditions and regulations imposed by the Landlord and shall be
completed in a good and workmanlike manner and with reasonable
diligence in accordance with the approvals given by the Landlord;
any connections of apparatus to the base electrical, plumbing,
heating, ventilating or air-conditioning systems shall be deemed
to be an alteration within the meaning of this Section. The
Tenant shall, at its own cost and before commencement of any
work, obtain all necessary building or other permits and keep
same in force. The maximum fee payable by the Tenant in respect
of inspection or supervisory work performed by the Landlord, its
agents, servants, workmen, or employees shall not exceed $500.00.
Removal of Fixtures
and Improvements
6.06 Leasehold Improvements shall immediately become the property
of the Landlord upon affixation or installation without
compensation therefor to the Tenant but the Landlord is under no
obligation to repair, maintain or insure such Leasehold
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Improvements. Such Leasehold Improvements shall not be removed
from the Leased Premises either during or at the expiration or
earlier termination of the Term, except that the Tenant shall, at
the end of the Term remove such Leasehold Improvements installed
or constructed after the commencement of the Term as the Landlord
may require to be removed. The Tenant may, during the Term or at
the expiration of the Term remove its trade fixtures provided
that the Tenant is not in default under this Lease and, in the
case of removal during the Term, such trade fixtures are
immediately replaced by trade fixtures of equal or better value.
Any removal of such Leasehold Improvements and the Tenant's trade
fixtures shall be done at the Tenant's sole cost and expense and
the Tenant shall make good any damage caused to the Leased
Premises or any part thereof by the installation or removal of
such Leasehold Improvements and trade fixtures. If the Tenant
does not remove its trade fixtures at the expiration or earlier
termination of the Term (which the Tenant is entitled to so
remove) the trade fixtures shall, at the option of the Landlord,
become the property of the Landlord and may be removed from the
Leased Premises and sold or disposed of by the Landlord in such
manner as it deems advisable. For greater certainty, the
Tenant's trade fixtures shall not include any heating,
ventilating and air-conditioning equipment or other building
services or floor covering affixed to the floor of the Leased
Premises. The obligations of the Tenant set forth herein shall
survive the expiry or other termination of the Term.
Construction Liens
6.07 The Tenant covenants to pay promptly all its contractors and
material men and do any and all things necessary to minimize the
possibility of a lien attaching to the Leased Premises or to any
part of the Building or the Lands and, should any such lien be
made or filed, the Tenant shall discharge the same forthwith
(after notice thereof is given to the Tenant) at the Tenant's
expense. In the event the Tenant shall fail to cause any such
lien to be discharged as aforesaid, then, in addition to any
other right or remedy of the Landlord, the Landlord may, but it
shall not be so obligated vacate same by paying the amount
claimed to be due into Court and the amount so paid by the
Landlord and all costs and expenses including solicitor's fees
(on a solicitor and his client basis), incurred herein for the
discharge of such lien shall be due and payable by the Tenant to
the Landlord as Additional Rent on demand.
Repairs on Termination, etc.
6.08 At the expiration or sooner termination of the Term, the
Tenant shall, at its own expense:
(a) deliver up possession of the Leased Premises to the Landlord
in the same condition in which the Tenant is required
hereunder to repair and maintain the Leased Premises
reasonable wear and tear excepted, together with all
Leasehold Improvements which the Tenant is required or
permitted to leave therein or hereon free and clear of all
encumbrances and in a clean and tidy condition and free of
all rubbish and to deliver to the Landlord all keys and
security devices;
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(b) remove any materials which may be deemed by any applicable
legislation as contaminated or hazardous and which have been
brought on to the Leased Premises by the Tenant or which are
a result of the Tenant's use or occupation of the Leased
Premises; and
(c) remove any storage and/or holding tanks whether above ground
or below ground and all pits from the Leased Premises which
were installed by the Tenant, at the option of the Landlord.
(d) restore the floors of the Leased Premises to the condition
of the floors as of the date of this Lease and to remove all
equipment and machinery and repair any damage caused by such
removal.
The covenants contained in this Section shall survive the expiry or other
termination of the Term.
ARTICLE VII - ASSIGNING AND SUBLETTING
Assigning or Subletting
7.01 (a) The Tenant shall not assign this Lease or sublet or
franchise, license, grant concessions in, or otherwise
part with or share possession of the Leased Premises,
or any part thereof, without the prior written consent
of the Landlord; at the time the Tenant requests such
consent the Tenant shall deliver to the Landlord such
information in writing (the "required information") as
the Landlord may reasonably require, including a copy
of the proposed offer or agreement, if any, to assign
or sublet or otherwise and the name, address and nature
of business and evidence as to the financial strength
of the proposed assignee or subtenant. In no event
shall any assignment of the Lease release the Tenant
from its obligations fully to perform all the terms,
conditions and covenants of this Lease.
PROVIDED however, and it is made a condition to the giving of such consent
that:
(i) The proposed assignee or sublessee of this Lease shall
agree in writing to assume and perform all of the
terms, covenants, conditions and agreements by this
Lease imposed upon the Tenant herein in a form to be
approved by the solicitor for the Landlord;
(ii) The Tenant shall pay the Landlord all reasonable legal
fees in connection with the assignment;
(iii) The consent of the Landlord is not a waiver of the
requirement of the Landlord's consent for
subsequent assignments of the Lease or subletting
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of the Leased Premises;
(iv) The acceptance by the Landlord of Rent from an assignee
or sublessee without the Landlord's consent shall not
constitute a waiver of the requirement of such consent
nor an acceptance of such party as the Tenant;
(v) If the assignment of Lease or subletting of the Leased
Premises does not take place within sixty (60) days
of the giving of consent by the Landlord the consent
shall expire and become null and void; and
(vi) if the Lease is disaffirmed, disclaimed or terminated
by any trustee in bankruptcy of an assignee or
sublessee, the original Tenant named in this Lease will
be deemed on notice from the Landlord given within
sixty (60) days from the date of such disaffirmation,
disclaimer or termination to have entered into a Lease
with the Landlord containing the same terms and
conditions as in this Lease.
(b) If an assignment or subletting occurs without the consent of
the Landlord when required, the Landlord may collect Rent
from the party in whose favour the assignment or subletting
was made and apply the net amount collected to the Rent
herein reserved but no such assignment or subletting will be
considered a waiver of this covenant or the acceptance of
the person in whose favour the assignment or subletting was
made as a tenant hereunder.
Change of Control
7.02 If the Tenant is a private corporation and any part in
excess of 50% thereof or all of the corporate shares shall be
transferred by sale, assignment, operation of law or other
disposition or dispositions so as to result in a change in the
control of the corporation, such change of control shall be
considered an assignment of this Lease and shall be subject to
the provisions of Section 7.01 hereof. The Tenant shall make
available to the Landlord upon its request a statutory
declaration of a senior officer of the Tenant as to the
applicability or inapplicability of this section.
Excess Rent
7.03 In the event that the Basic Rent payable under any sublease
or assignment is in excess of the Basic Rent reserved hereunder
or is in excess of the proportionate Rent reserved in the event
of a sublease of part of the Leased Premises, whether the excess
be in the form of cash, goods or services from the subtenant or
assignee or anyone acting on its behalf, to pay 50% of such
excess to the Landlord immediately upon receipt thereof; in the
event that such excess is represented by goods or services
rendered to the Tenant or its nominee, the value of those goods
or services shall be determined by the Landlord and Tenant and
50% of that value shall be paid in cash to the Landlord
immediately herein upon such determination. Notwithstanding the
foregoing, if the Tenant is in occupation
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of at least 50% of the Leased Premises, the Tenant shall not be required
to pay the Landlord any excess rent in the case of a subletting.
Mortgage of
Leasehold, etc.
7.04 The Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber all or any portion of the Tenant's interest in
this Lease or the Leasehold improvements.
Advertising
Premises
7.05 The Tenant shall not advertise or allow the Leased Premises
or a portion thereof to be advertised as being available for
assignment, sublease or otherwise without the prior written
approval of the Landlord of the form and content of such
advertisement, which approval shall not be unreasonably withheld,
provided that no such advertising shall contain any reference to
the Rent for the Leased Premises.
Disposition
by Landlord
7.06 If the Landlord sells the Leased Premises or any part
thereof, or assigns this Lease, and to the extent that the
covenants and obligations of the Landlord hereunder are assumed
by the purchaser or assignee, the Landlord, without further
written agreement, will be discharged and relieved of liability
under the said covenants and obligations.
ARTICLE VIII - USE
Use of Leased
Premises
8.01 The Tenant shall not use the Leased Premises nor allow the
Leased Premises to be used for any purpose other than
manufacturing and distribution of food, salad dressings and
related business.
Observance
of Law
8.02 The Tenant shall comply promptly with and conform to the
requirements of all applicable statutes, by-laws, laws,
regulations, ordinances and orders from time to time or at any
time in force during the Term of this Lease and affecting the
condition, equipment, maintenance, use or occupation of the
Leased Premises and with every applicable regulation, order and
requirement of the Canadian Fire Underwriters Association or any
body having similar functions or of any liability or fire
insurance company by which the Landlord and the Tenant or either
of them may be insured at any time during the Term hereof, and,
in the event of the default of the Tenant under the provisions of
this Section, the Landlord may itself comply with any such
requirements as aforesaid and the Tenant will forthwith pay all
costs and expenses incurred by the Landlord
13
in this regard and the Tenant agrees that all such costs and expenses shall
be recoverable by the Landlord as if the same were Additional Rent reserved
and in arrears under this Lease.
Waste and
Nuisance
8.03 The Tenant shall not do or suffer any waste, damage,
disfiguration or injury to the Leased Premises or the fixtures
and equipment thereof and shall not use or permit to be used any
part of the Leased Premises for any dangerous, noxious or
offensive trade or business nor use the Leased Premises in any
manner which, in the opinion of the Landlord acting reasonably,
is detrimental to the Building, nor keep, sell, use or handle and
dispose of any goods or things which may be objectionable nor
cause or maintain any nuisance in, at or on the Leased Premises
nor cause any annoyance, nuisance or disturbance to the occupiers
or owners of any adjoining lands and/or premises and shall store
and handle any hazardous waste and contaminants in accordance
with applicable governmental regulations. Notwithstanding
anything else herein contained, the Landlord acknowledges that
the normal conduct of the use set out in Section 8.01 shall not
be deemed a breach of this section.
Signs
8.04 The Tenant may affix a sign or signs to the Building,
subject to the approval of the Landlord which shall not be
unreasonably withheld and subject to municipal and other
governmental regulations in that respect and the Tenant shall
remove the same on the expiration of the Term of this Lease, or
other sooner termination thereof, provided the Tenant at its
expense shall forthwith make good all damages which may be caused
or occasioned by such removal and this covenant shall survive the
expiry or other termination of the Term.
Outside Storage
8.05 The Tenant shall not store any goods or matter of any kind
outside the Building without the written consent of the Landlord.
Overloading Floors
8.06 The Tenant covenants that it will not bring upon the Leased
Premises or any part thereof any machinery, equipment, article or
thing that, by reason of its weight, size, or operation, might
damage the Leased Premises and will not at any time overload the
floors of the Leased Premises. The Tenant shall remove any such
machinery, equipment, article or thing within five (5) days
written notice thereof and if any damage is caused to the Leased
Premises by any machinery, equipment, article or thing or by
overloading, the Tenant shall forthwith repair such damage at its
own expense.
ARTICLE IX - INSURANCE AND INDEMNITY
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Tenant's Insurance
9.01 The Tenant shall, at its expense, maintain in force during
the Term and any renewals thereof in the names of the Tenant, the
Landlord and the Landlord's mortgagee, if any, the following
insurance:
(a) comprehensive general liability insurance against claims for
personal injury, death or property damage arising out of all
operations of the Tenant, (including tenants' legal
liability, personal liability, property damage and
contractual liability to cover all indemnities and repair
obligations) with respect to the business carried on in and
from the Leased Premises, in amounts required by the
Landlord and any mortgagee of the Building or any part
thereof from time to time but in no event more than Three
Million Dollars ($3,000,000.00) per occurrence during the
initial Term;
(b) property insurance covering all property owned by the
Tenant, or for which the Tenant is responsible pursuant to
this Lease, or which has been installed by or on behalf of
the Tenant including without limitation all chattels,
equipment, furniture, inventory, fixtures and all Leasehold
Improvements and all other contents of the Leased Premises,
in an amount equal to the full replacement value thereof;
and
(c) such other forms of insurance as may be reasonably required
by the Landlord and its mortgagee from time to time.
Any policy written pursuant to paragraph (a) hereof, shall contain a
severability of interest clause and cross-liability clause. All policies shall
contain an undertaking by the insurers to notify the Landlord and its mortgagee,
if any, in writing not less than thirty (30) days prior to any material change,
cancellation or termination thereof.
The Tenant agrees to furnish upon request from the Landlord verification of
compliance with the provisions of this Section 9.01.
Landlord's
Insurance
9.02 The Landlord shall, throughout the Term, keep at the sole
cost and expense of the Tenant, the Building and appurtenances
thereto, insured to the following extent:
(a) against such loss or damage as are customarily insured
against under a policy of insurance commonly known as a
Multi-Peril or All-Risk policy;
(b) blanket broad boiler and pressure vessel insurance including
repair or replacement;
(c) rental income protection insurance with respect to fire and
other usual perils for which such insurance is customarily
issued for a period (as selected by the Landlord) of not
less than six (6) months and not more than twelve (12)
months for the Basic Rent and other sums payable as
Additional Rent under this Lease;
15
(d) other casualties as are customarily insured against under
insurance contracts normally entered into from time to time
during the Term by owners of buildings in the area of a
character similar to the Leased Premises for such an amount
as in the reasonable opinion of the Landlord is necessary to
protect the Landlord against loss or damage.
Notwithstanding anything herein provided, including the covenant of the
Landlord to take out the aforesaid insurance or the contribution of the
Tenant to the cost of such insurance, nothing herein shall confer any
insurable interest on the Tenant in respect of such insurance and the Tenant
acknowledges that it has no right to receive the proceeds or any part thereof
from such insurance policies.
Limit of
Landlord's
Liability
9.03 The Landlord shall not be responsible in any way for any
injury to any person (including death) or for any loss of or
damage to any property belonging to the Tenant or to other
occupants of the Leased Premises or to their respective
employees, agents, invitees, licensees or other persons from time
to time attending at the Leased Premises while such person or
property is in or about the Leased Premises, including without
limiting the foregoing, any loss of or damage to any property
caused by theft or breakage, or by steam, water, rain or snow or
for any loss or damage caused by or attributable to the condition
or arrangements of any electric or other wiring or for any damage
caused by smoke or for any other loss whatsoever with respect to
the Leased Premises, goods placed therein or any business carried
on therein.
Limit of
Tenant's
Liability
9.04 The Tenant shall not be liable to the Landlord for any
direct injury, loss or damage required to be insured by the
Landlord pursuant to paragraphs (a) or (b) of Section 9.02 to the
extent of the proceeds actually recovered by the Landlord under
such policies of insurance provided the Landlord has complied
with its obligations under Section 9.02 hereof.
Indemnity
9.05 The Tenant shall promptly indemnify and save harmless the
Landlord from any and all liabilities, damages, costs, claims,
suits or actions arising out of any breach, violation or
non-observance by the Tenant of any of its covenants and such
property shall be in or about the Leased Premises including the
systems, furnishings and amenities thereof, as a result of the
willful or negligent act or omission of the Tenant, its employees,
agents,
16
invitees or licensees; and from any injury to any employee, agent,
invitee or licensee, of the Tenant, including death resulting at any time
therefrom, occurring on or about the Leased premises. Notwithstanding
anything else herein contained, this indemnity shall survive the expiry or
earlier termination of this Lease, in respect of any of the foregoing
circumstances during the Term.
ARTICLE X - DAMAGE AND DESTRUCTION
Abatement of Rent
10.01 If the Building or any portion thereof is damages or
destroyed by fire or by other casualty against which the Landlord
is required to insure for hereunder, Rent shall xxxxx in
proportion to the area of that portion of the Building which, in
the reasonable opinion of the Landlord, is thereby rendered unfit
for the purposes of the Tenant bears to the area of the entire
Building until the Building is repaired and rebuilt as certified
by the Landlord's architect and the Landlord agrees that it will,
with reasonable diligence, repair, restore and rebuild the
Building. The Landlord's obligation to rebuild and restore the
Building shall not include the obligation to rebuild, restore,
replace or repair any chattel, fixture, Leasehold Improvement, or
any other thing that is the property of the Tenant and/or for
which the Tenant is to maintain insurance under Section 9.01(b),
(in this Section collectively called "Tenant's Improvements");
the Building shall be deemed restored and rebuild when the
Landlord's Architect certifies that the Building has been
substantially restored and rebuilt to the state where the Tenant
could occupy it for the purpose of the rebuilding, restoring,
replacing or repairing the Tenant's Improvements. The issuance
of the Architect's certificate shall not relieve the Landlord of
its obligation to complete the rebuilding and restoration as
aforesaid, but the Tenant shall forthwith after issuance of the
certificate proceed to rebuild, restore, replace and repair the
Tenant's Improvements, and the provisions of Section 6.04 shall
apply to such work, mutatis mutandis.
Termination
10.02 Notwithstanding the provisions of Section 10.01 hereof:
(i) if the Building or any portion hereof is damaged or
destroyed by any cause whatsoever and cannot in the
reasonable opinion of the Landlord be rebuilt or made fit
for the purposes of the Tenant as aforesaid within one
hundred and eighty (180) days from the date of damage or
destruction, the Landlord instead of rebuilding or making
the Building fit for the Tenant or the Tenant may, at their
option, terminate this Lease by giving to the other, within
forty-five (45) days after the date of such damage or
destruction, notice of termination and thereupon Rent shall
be apportioned and paid to the date o f such damage or
destruction and the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord.
(ii) If the Building or any portion thereof is damaged or
destroyed by an uninsured peril, the Landlord instead of
rebuilding or making the Building fit for
17
the Tenant may, at its option terminate this Lease by giving to the
Tenant within forty-five (45) days after the date of such damage or
destruction, notice of termination and thereupon Rent shall be
apportioned and paid to the date of such damage or destruction and the
Tenant shall immediately deliver up possession of the Leased Premises
to the Landlord.
If neither the Landlord nor the Tenant has elected to terminate
the Lease, the Landlord shall repair and rebuild the Building and Rent
shall xxxxx in accordance with the provisions of Section 10.01 hereof.
Notwithstanding anything herein contained, the Tenant shall be
entitled to exercise its option in Schedule "E" and upon the exercise
of such option the Tenant shall be entitled to all proceeds of the
insurance payable to the Landlord or the Tenant under this Lease.
ARTICLE XI - DEFAULT
Events of Default
11.01 An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any
part thereof on the day appointed for payment thereof,
whether lawfully demanded or not and such failure
continues for three (3) days after written notice from
the Landlord (provided that if the Landlord shall have
been required to give notice to the Tenant pursuant to
this paragraph on three (3) occasions in any Year of
the Term, the Landlord shall have no further obligation
to give notice hereunder);
(b) the Tenant shall have breached or failed to comply with
any of its covenants and agreements contained in this
Lease (save for non-payment of Rent) and shall have
failed to remedy such breach or non-compliance within
fifteen (15) days (or such longer period as the
Landlord may reasonably determine, having regard to
the nature of the default) after written notice
thereof given by the Landlord to the Tenant;
(c) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt (and such bankruptcy is
not being diligently contested by the Tenant) or
insolvent or take the benefit of any act now or
hereinafter in force for bankrupt or insolvent debtors;
(d) the Tenant is a corporation and any order shall be made
for the winding up of the Tenant or other termination
of the corporate existence of the Tenant;
(e) the Tenant makes or attempts to make a sale of all or
substantially all of its assets outside the ordinary
course of its business regardless of where they
18
are situated;
(f) a trustee, receiver, interim receiver, receiver and
manager, custodian or liquidator is appointed for all
or substantially all of the business, property, affairs
or revenue of the Tenant and such appointment is not
revoked within thirty (30) days of the date of such
appointment;
(g) this Lease or any of the Tenant's assets on the Leased
Premises are taken or seized under writ of execution,
an assignment, pledge, charge, debenture or other
security instrument, which taking or seizure is not
being contested by the Tenant.
(h) the Tenant abandons or attempts to abandon the Leased
Premises;
(i) the Leased Premises shall be used by any person other
than the Tenant, the Tenant's permitted assignees or
for any purpose other than that for which the Leased
Premises were let;
(j) any insurance policy on the Building or any part
thereof shall be canceled or shall be threatened by the
insurer to be canceled or the coverage thereunder
reduced in any way by the insurer by reason of the use
or occupation of the Leased Premises or any part
thereof by the Tenant and the Tenant shall have failed
to remedy the condition giving rise to cancellation,
threatened cancellation or reduction of coverage within
forty-eight (48) hours written notice given by the
Landlord to the Tenant;
(k) the Tenant sells or disposes of the goods, chattels or
equipment in the Leased Premises or removes, commences
or threatens to remove them from the Leased Premises so
that in the opinion of the Landlord (acting reasonably)
there would not, in the event of such sale, disposal or
removal, be sufficient goods on the Leased Premises
subject to distress which would satisfy all Rent due or
accruing hereunder for a period of six (6) months;
(1) the Tenant shall at any time during the Term use the
Leased Premises, whether within the use permitted by
Section 8.01 or not, which imposes on the Landlord any
obligation to modify, extend, alter or replace any part
of the Leased Premises or any of the machinery,
equipment or other facilities used in connection with
the Leased Premises and the Tenant, at the request of
the Landlord has not diligently commenced to carry out
such work;
(m) The Leased Premises are vacant for any period in excess
of fifteen (15) days other than during repairs or
renovations.
19
Upon the occurrence of an Event of Default, the then current
month's Rent and next ensuing three (3) months' Rent shall immediately
become due and be paid by the Tenant to the Landlord as accelerated
Rent and the Landlord may immediately distrain for the same together
with any Rent arrears then unpaid.
Right of Re-entry
11.02 (a) Upon the occurrence of an Event of Default, the
Landlord may at any time thereafter, without
notice to the Tenant, re-enter the Leased Premises
or any part thereof in the name of the whole and
terminate this Lease and all the rights of the
Tenant thereunder.
(b) If and whenever the Landlord exercises its option to
re-enter the Leased Premises and terminate this Lease
pursuant to paragraph (a) of this section 11.02:
(i) the Tenant shall immediately vacate the Leased
Premises and the Landlord may remove or cause to
be removed from the Leased Premises the Tenant or
any other occupant or occupants thereof and may
remove all property therefrom and sell or dispose
of it as the Landlord considers appropriate
without liability for loss or damage and without
prejudice to the rights of the Landlord to recover
arrears of Rent or damages incurred by the
Landlord;
(ii) the Landlord shall be immediately entitled to the
payment of Rent up to the date of termination
together with all expenses incurred by the
Landlord in such termination and the value of the
Rent, calculated at the date of termination, for
the unexpired portion of the Term.
Reletting
11.03 At any time when the Landlord is entitled to re-enter
the Leased Premises or terminate this Lease, the Landlord may
without notice to the Tenant and without terminating the Lease
enter upon and take custody of the Leased Premises in the name of
and as agent of the Tenant, together with all the Tenant's
improvements, fixtures and furnishings, and sublet the Leased
Premises in the name of and as the agent of the Tenant on
whatever terms the Landlord may deem appropriate but no such
action by the Landlord shall waive any of the obligations of the
Tenant or the subsequent exercise of any of the Landlord's
remedies for default. If the Landlord shall sublet the Leased
Premises as aforesaid, the Landlord shall be entitled to receive
all sublease rent and apply the same in its discretion to any
indebtedness of the Tenant to the Landlord hereunder, and the
payment of any costs and expenses of reletting, and the Landlord
shall be liable to account to the Tenant only for the excess, if any,
of monies actually received by it. If the sublease rent is less than
is necessary to pay and discharge all the then existing and continuing
20
obligations of the Tenant hereunder, the Tenant shall pay such
deficiency from time to time upon demand to the Landlord.
Notwithstanding any such re-entry and subletting without termination,
the Landlord may at any time thereafter terminate this Lease by reason
of the previous or any other default under the Lease and the
provisions of Section 11.02 shall apply.
Distress
11.04 The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's
right of distress, and covenants and agrees that notwithstanding
any such statute none of the goods and chattels of the Tenant on
the Leased Premises at any time during the Term shall be exempt
from levy by distress for rent in arrears.
Right of Landlord
to Cure Defaults
11.05 If the Tenant fails to perform or cause to be performed
any of the covenants or obligations of the Tenant herein, the
Landlord shall have the right (but shall not be obligated) to
perform or cause to be performed and to do or cause to be done
such things as may be necessary or incidental thereto (including
without limiting the foregoing, the right to make repairs,
installations, erections and expend monies) and all payments,
expenses, charges, fees and disbursements incurred or paid by or
on behalf of the Landlord in respect thereof shall be paid by the
Tenant to the Landlord within ten (10) days written demand
therefor together with reasonable administrative costs of the
Landlord in respect thereof.
Remedies Not Exclusive
11.06 Mention in this Lease of any particular remedy or
remedies in respect of any default or threatened default by the
Tenant in the performance of its obligations shall not preclude
the Landlord from exercising, or limit the extent of, any other
remedy in respect thereof, whether at law, in equity or pursuant
to any express provision hereof. No remedy shall be interpreted
as exclusive or dependent upon any other remedy, but the Landlord
may from time to time exercise any one or more of such remedies
independently or in combination.
Non-Waiver
11.07 No condoning, excusing or overlooking by the Landlord
or any default, breach or non-observance by the Tenant at any
time or times in respect of any covenant, proviso or condition
herein contained shall operate as a waiver of the Landlord's
rights hereunder in respect of any continuing or subsequent
default, breach or non-observance, or so as to defeat or affect
in any way the rights of the Landlord herein in respect of any
such continuing or subsequent default or breach, and no waiver
shall be inferred from or implied by anything done or omitted by
the Landlord save only an express waiver in writing.
21
Recovery of
Adjustments
11.08 The Landlord shall have (in addition to any other right
or remedy of the Landlord) the same rights and remedies in the
event of default by the Tenant in payment of any amount payable
by the Tenant hereunder as the Landlord would have in the case of
default in payment of Rent.
ARTICLE XII - SUBORDINATION AND ACKNOWLEDGMENTS
Mortgages
12.01 At the option of the Landlord, this Lease shall be
subject and subordinate to any and all mortgages, charges and
deeds of trust, which may now or at any time hereafter affect the
Leased Premises in whole or in part, or the Lands, or the
Building whether or not any such mortgage, charge or deed of
trust affects only the Leased Premises or the Lands or the
Building or affects other premises as well. On request at any
time and from time to time of the Landlord or of the mortgagee,
chargee or trustee under any such mortgage, charge or deed of
trust, the Tenant shall promptly, at no cost to the Landlord or
mortgagee, chargee or trustee:
(a) attorn to such mortgagee, chargee or trustee and become
its tenant of the Leased Premises or the tenant of the
Leased Premises of any purchaser from such mortgagee,
chargee or trustee in the event of an exercise of any
permitted power of sale contained in any such mortgage,
charge or deed of trust for the then unexpired residue
of the Term on the terms herein contained; and/or
(b) postpone and subordinate this Lease to such mortgage,
charge or deed of trust to the intent that this Lease
and all right, title and interest of the Tenant in the
Leased Premises shall be subject to the rights of such
mortgagee, chargee or trustee as fully as if such
mortgage, charge or deed of trust had been executed and
registered and the money thereby secured had been
advanced before the execution of this Lease (and
notwithstanding any authority or consent of such
mortgagee, or trustee, expressed or implied, to the
making of this Lease).
Any such attornment or postponement and subordination shall extend to all
renewals, modifications, consolidations, replacements and extension of any
such mortgage, charge or deed of trust and every instrument supplemental or
ancillary thereto or in implementation thereof. The Tenant shall forthwith
execute an instruments of attornment or postponement and subordination which
may be so requested to give effect to this Section.
The Landlord shall obtain a non-disturbance agreement from any security
holder with an interest registered against the Leased Premises as of the date
of this Lease wherein such security
22
holder agrees in writing with the Tenant that the Tenant's possession of the
Leased Premises shall not be disturbed as long as the Tenant is not in
default of the Lease.
Certificates
12.02 The Tenant shall execute and deliver to the Landlord at
any time and from time to time at no cost to the Landlord and
upon not less than ten (10) days' prior notice, a statement in
writing certifying that this Lease is unmodified and in full
force and effect (or if modified, stating the modifications and
that the Lease is in full force and effect as modified), the
amount of the annual Basic Rent then being paid hereunder, the
dates to which the same, by instalment or otherwise, and other
charges hereunder have been paid, whether or not there is any
existing default on the part of the Landlord of which the Tenant
has notice, and any other information reasonably required.
ARTICLE XIII - ACCESS BY LANDLORD
Entry by Landlord
13.01 The Tenant shall permit the Landlord and its agents
employees or workmen to enter upon the Leased Premises at any
reasonable time and from time to time upon forty-eight (48) hours
prior notice to the Tenant for the purpose of inspecting and
making repairs, alterations or improvements to the Leased
Premises and the Tenant shall not be entitled to any compensation
for any inconvenience, nuisance or discomfort occasioned thereby.
In order to protect the confidentiality of the Tenant's business
being conducted on the Leased Premises, any entry by the Landlord
or its agents, employees or workmen (except in cases of
emergency) shall be in the presence of a representative of the
Tenant and the Landlord and its agents, employees or workmen
shall not make any type of reproductive matter in respect of the
operation of the Tenant's business on the Leased Premises.
Exhibiting Leased Premises
13.02 The Tenant shall permit the Landlord or its agents to
exhibit the Leased Premises to prospective tenants during the
last six (6) months of the Term or any renewal thereof, upon
reasonable prior notice.
In order to protect the confidentiality of the Tenant's business
being conducted on the Leased Premises, any entry by the Landlord or
its agents shall be in the, presence of representative of the Tenant
and the Landlord and its agents shall not make any type of
reproductive matter in respect of the operation of the Tenant's
business on the Leased Premises.
ARTICLE XIV - REPRESENTATIONS AND WARRANTIES
Representations and
Warranties of Title
14.01 The Landlord represents and warrants that it has or
will have, at the commencement of the Term of this Lease, a good
and marketable title to the Lands, subject only to the
23
following, (none of which will interfere with the development situate on the
Lands:
(a) Any rights of way and/or easements for the benefit of
the Landlord and Tenant in common with others to serve
the Leased Premises and/or adjoining or surrounding
lands for the free and unobstructed ingress and egress
of vehicular traffic and for the installation, repair
and replacement of underground services including
hydro, telephone, sanitary and storm sewers, natural
gas and water lines;
(b) Service easements in favour of Xxxx Telephone, Hydro
Electric Power Commission, City of North York, in the
Municipality of Metropolitan Toronto, and easements for
sewer or water easements for serving the Lands or
adjoining lands;
(c) Private deed restrictions (if any) which will have been
complied with prior to the commencement of the Term
herein;
(d) The financial agreement and/or subdivision agreement
between the developer and the City of North York and/or
the Municipality of Metropolitan Toronto, (the
provisions of which will have been complied with by the
developer and/or the Landlord prior to the commencement
of the Term, including the installation of all services
and the discharge of all financial obligations
thereunder, it being intended that the Tenant shall not
be required to pay for or perform any part of any of
the said agreements);
(e) The Toronto Airport zoning regulations (if applicable);
and
(f) Any mortgage or charge entered into from time to time
by the Landlord.
The Tenant acknowledges that some or all of the foregoing
encumbrances may not have been registered as of the commencement of
the Term and agrees to postpone its leasehold interest herein and/or
to execute such consents and/or postponements as may be necessary to
give effect to the provisions of this Section 14.01.
ARTICLE XV - MISCELLANEOUS
Notice
15.01 (a) Any notice, request, statement or other writing
pursuant to this Lease shall be deemed to have
been given if sent by registered prepaid post as
follows:
TO: ORLANDO CORPORATION
0000 Xxxxxxx Xx.,
Xxxxxxxxxxx, Xxxxxxx, X0X IE3
24
or such other address as the Landlord shall notify the
Tenant in writing any time or from time to time;
TO: THE TENANT
----- at the Leased Premises
and such notice shall be deemed to have been received
by the Landlord or the Tenant, as the case may be, on
the third business day after the date on which it shall
have been so mailed (in the event that there is an
interruption of postal service, the aforesaid period
shall be extended for a period equivalent to the period
of interruption).
(b) Notice shall also be sufficiently given if and when the
same shall be delivered, in the case of notice to the
Landlord, to an executive officer of the Landlord, and
in the case of notice to the Tenant, to him personally
or to an executive officer of the Tenant if the Tenant
is a corporation. Such notice, if delivered, shall be
conclusively deemed to have been given and received at
the time of such delivery. If in this Lease two or
more persons are named as Tenant, such notice shall
also be sufficiently given if and when the same shall
be delivered personally to any one of such persons.
Provided that either party may, by notice to the other,
from time to time designate another address in Canada
to which notices mailed more than ten (10) days
thereafter shall be addressed.
Registration
15.02 The Tenant covenants and agrees with the Landlord that
the Tenant will not register or record this Lease against the
title to the Lands except by way of notice which shall be subject
to the approval of the Landlord and which shall only describe the
parties, the Leased Premises, the Term and any renewals or
options. The Tenant and the Landlord agree to execute a short
form of Lease prepared by the Landlord (or by the Tenant subject
to the approval of the Landlord) and at each party's own expense
setting out the aforesaid details within ten (10) days of written
request therefor.
Planning Act
15.03 Where applicable, this Lease shall be subject to the
condition that it is effective only if The Planning Act is
complied with. Pending such compliance, the Term and any renewal
periods shall be deemed to be for a total period of one (1) day
less than the maximum lease term permitted by law without such
compliance.
Interpretation
of Lease
15.04 All of the provisions contained in this Lease are to be
construed as covenants and agreements and if any provision is
illegal or unenforceable it shall be considered separate
25
and severable from the remaining provisions which shall remain in
force and be binding upon the Landlord and the Tenant.
Overholdinq
15.05 if the Tenant shall continue to occupy all or part of
the Leased Premises after the expiration of this Lease with the
consent of the Landlord, and without any further written
agreement, the Tenant shall be a monthly tenant at fair market
rent for similar term, premises and location as the Leased
Premises.
Unavoidable
Delays
15.06 whenever and to the extent the Landlord is unable to
fulfill or shall be delayed or restricted in the fulfillment of
any obligation hereunder by reason of being unable to obtain the
material, goods, equipment, service, utility or labour required
to enable it to fulfill such obligation or by reason of any
statute, law, regulation, by-law or order or by reason of any
other cause beyond its reasonable control, whether of the same
nature as the foregoing or not, the Landlord shall be relieved
from the fulfillment of such obligation and the Tenant shall not
be entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned. There shall be no deduction from
the Rent or other monies payable hereunder by reason of any such
failure or cause.
Evidence
of Payments
15.07 The Tenant shall produce to the Landlord upon request,
satisfactory evidence of due payment by the Tenant of all
payments required to be made by the Tenant under this Lease.
Lien
15.08 As security for the due payment by the Tenant of the
Rent reserved hereunder and the performance by the Tenant of all
covenants, agreements, provisoes and conditions of the Tenant to
be performed hereunder, the Tenant hereby grants to the Landlord
a lien and charge on all goods, chattels, trade fixtures,
furniture, equipment and inventory of the Tenant situate on, in
or about the Leased Premises or elsewhere. Such lien and charge
shall constitute a security agreement within the meaning of The
Personal Property Security (Ontario) and on default of the
Tenant hereunder the Landlord shall have, in addition to any
other rights and remedies it may be entitled to under this Lease
or otherwise, all the rights and remedies of a secured party
under The Personal Property Security Act. The Landlord hereby
postpones the within lien to any financing obtained by the Tenant
with respect to the conduct of the Tenant's business, with the
intent that the Landlord's lien hereunder shall be second in
priority to such financing. At the request of the Tenant, the
Landlord will provide the Tenant's lender with a postponement of
its interest as herein provided within five (5) days of delivery
of such postponement to the Landlord.
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Time of
Essence
15.09 Time shall be of the essence of this Lease.
Law
15.10 This Lease shall be governed by and construed in
accordance with the laws of the Province of Ontario.
Captions
15.11 The captions appearing in the margin of this Lease have
been inserted as a matter of convenience and for reference only
and in no way define, limit or enlarge the scope of meaning of
this Lease nor any of the provisions hereof.
Joint and
Several Liability
15.12 If the Tenant shall be comprised of more than one (1)
person, the liability of each such person under this Lease shall
be joint and several.
Tenant
Partnership
15.13 If the Tenant shall be a partnership, each person who
shall be a member of such partnership or successor thereof shall
be and continue to be jointly and severally liable for the
performance and observance of all covenants, obligations and
agreements of the Tenant under this Lease even if such person
ceases to be a member of such partnership or successor thereof.
Environmental
15.14 The Landlord shall cause a "Phase I" environmental
investigation to be made of the Leased Premises. If contaminants
or hazardous wastes are found in levels exceeding the Ministry of
Environment Guide levels for commercial/industrial property, the
Landlord, at its option, shall either remove such hazardous
wastes or contaminants or terminate this Lease provided such
termination occurs on or before the 14th day of March, 1993.
Entire Agreement
15.15 The Tenant acknowledges that there gave been no
representations made by the Landlord which are not set out in the
Lease. The Tenant further acknowledges that the Lease
constitutes the entire agreement between the Landlord and Tenant
and may not be modified except as herein explicitly provided or
except by subsequent agreement in writing duly signed by the
Landlord and the Tenant.
Effect of Lease
15.16 This indenture and everything herein contained shall
extend to and bind and may
27
be taken advantage of by the respective heirs, executors,
administrators, successors and assigns, as the case may be, of
each and every of the parties hereto, subject to the granting of
consent by the Landlord as provided herein to any assignment or
sublease, and where there is more than one tenant or there is a
female party or a corporation, the provisions hereof shall be read
with all grammatical changes thereby rendered necessary and all
covenants shall be deemed joint and several.
Approval of the Landlord
15.17 Wherever the approval or consent of the Landlord is
required by the terms of this Lease, such approval or consent
shall not be unreasonably or arbitrarily withheld or delayed
unless otherwise expressly set out.
IN WITNESS WHEREOF the parties hereto have executed this Lease.
LANDLORD: ORLANDO CORPORATION
Per:/s/
--------------------------------
Authorized Signing Officer
Name:
Position:
Per:/s/
--------------------------------
Authorized Signing Officer
Name:
Position:
WE HAVE AUTHORITY TO BIND THE
CORPORATION
TENANT: EXCELLE BRAND FOODS CORPORATION
Witness: /s/ Per:/s/
--------------------------- --------------------------
Authorized Signing Officer
Name:
Position:
28
Per:/s/
-----------------------------
Authorized Signing Officer
Name:
Position:
WE HAVE AUTHORITY TO BIND THE
CORPORATION
29
