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THIS INDENTURE made as of the 15th day of June, 1999.
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 Part of Suite 108,
000 Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx, xxxxxxxxxx 9,106 square feet
of Gross Floor Area, 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
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(a) Leased Premises: Part of Suite 108 1
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
(b) Term: FIVE (5)YEARS AND NINE (9) MONTHS 4
(c) (i) Commencement Date: June 15, 1999 4
(ii) Expiry Date: February 28, 2005
(d) (i) Basic Rent:
Lease Year 1 $31,871.04 per annum
$2655.92 per month
($3.50 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
Lease Year 2 $34,147.56 per annum
$2,845.63 per month
($3.75 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
Lease Year 3 $36,424.08 per annum
$3,035.34 per month
($4.00 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
Lease Year 4 $38,700.48 per annum
$3,225.04 per month
($4.25 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
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Lease Years 5
and 6 $40,977.00 per annum
$3,414.75 per month
($4.50 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
(ii) Initial Improvements Rent:
Lease Years 1 to 6 $10,471.92 per annum
$872.66 per month
($1.15 per sq. ft. of the
Gross Floor Area of the
Leased Premises per annum)
(e) Gross floor Area of the Leased Premises:
9,106 square feet 2
(f) Deposit: 32
First Month's Last Month's
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Improvements: Basic $2,655.92 $3,414.75
Improvements $ 872.66 $ 872.66
Additional $2,655.92 $2,655.92
GST $ 432.92 $ 486.03
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Total $6,617.42 $7,429.36
GRAND TOTAL: $14,046.78
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(g) Use of the Leased Premises: 7(a)
MANUFACTURER OF BAKED GOODS
(h) Name of Business to be carried on
in the Leased Premises: 7(c)
TASTY SELECTIONS INC.
(i) Address for Service of Notice on Tenant and Indemnifier 20
Suite 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"
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Schedules
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Plan of Leased Premises: Schedule "A"
Landlord's Work and Tenant's Work Schedule "B"
Special Provisions Schedule "C"
Initial Improvements - Amortization Schedule Schedule "D"
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).
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) and shall also pay a fixed minimum annual rent,
as more particularly described in Section 5(b), ("Initial
Improvements Rent") in the amount described as Initial Improvements
Rent in Section 2(d), each to be paid in equal monthly instalments
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
and the Initial Improvements 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) The cost of initial improvements to the Leased Premises made by the
Landlord to induce the Tenant to lease the Leased Premises, being
the sum of FORTY-SIX THOUSAND FIVE HUNDRED ($46,500.00) DOLLARS,
shall be included in rents paid by the Tenant as Initial
Improvements Rent. In the event that the Lease is terminated prior
to the expiration of the Term or if the Tenant is in default under
the Lease prior to the expiry of the Term, the Tenant shall at that
time reimburse the Landlord for the portion of the cost of the
initial improvements in the amount of the applicable payment set out
in the Initial Improvements - Amortization Schedule attached hereto
as Schedule "D".
(c) 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
and collectible in the same manner as rent hereunder and under the
Lease. The Tenant shall pay all Basic Rent, Initial Improvements
Rent and Additional Rent to the Landlord without any deduction,
set-off or abatement whatsoever.
(d) The Tenant agrees o 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 and Initial Improvements Rent payment and any Additional Rent
estimated by the Landlord in advance plus applicable GST.
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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; 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.
(c) The Landlord estimates that the Additional Rent for the Premises for
calendar 1999 to be $3.50 per square foot, detailed as to:
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Taxes $2.35
Maintenance $1.03
Insurance and Other $0.12
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Total $3.50
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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 sections
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 without the Landlord's prior written consent. 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 to 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 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.
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(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 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
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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,
including freezers, 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.
(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 bylaws 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.
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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.
(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 often (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
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any part thereof shall be canceled 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 Xxxxxx in such manner as is reasonable to
satisfy any work orders or deficiency notices which would be
required to be satisfied in order for any tenant to obtain its
initial 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 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.
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(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.
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
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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 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.
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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 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.
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(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.
(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.
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(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.
(d) 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 and/or the Indemnifier by registered mail addressed to or by
delivery to the Tenant and/or Indemnifier 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 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 5 of Schedule "C" 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
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time hereafter effect the Leased Premises 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 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.
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(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.
26. XXXXXXXX'S AND 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. The Landlord
acting reasonably shall have the right to approve the Tenant's Work and workmen
prior to the commencement of any work in the Leased Premises. Any equipment
supplied or work performed by the Landlord in addition to that specified in
Schedule "B" 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.
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27. RENEWAL
N/A
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.
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.
19
19
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
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 monthly
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.
20
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.
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/ [ILLEGIBLE]
---------------------------------------
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.
21
SCHEDULE "A"
PART OF SUITE 108
[FLOOR PLAN]
22
SCHEDULE "B"
XXXXXXXX'S WORK
The Landlord shall supply and install in a good and workmanlike manner, at the
Landlord's expense, the following:
ELECTRICAL
500 mcm Tech Cable
48 x 48 x 12M.C
600 Amp Vacuum Break Switch Commander
600 Amp 600 Volt N.F. Switch
600 Amp 6' Bus Bar Trough
100 Amp 600 Volt Fusable Switch
100 Amp 600 Volt T.D. Fuses
4 x 4 x 3 Pressure Treated Wood
1 1/14 - 2h Rigid Clips
Miscellaneous Fittings
Relocation of Meter to accommodate new meter cabinet
Refeed existing 100 Amp service and disconnect all services
ROOFING
- To cut existing built up roofing and steel deck for two new wood curb
housing for electrical cables complete with removable cover
- Supply and construction of two wood curbs (approximately 18" high x 12"
wide x 36" long)
- Roofing in of curbs with xxxxx FR-40 membrane
- Metal flashing for removable cover
- Structural reinforcing of openings to underside of deck
- Return trip to seal openings in curb after cables installed
DEMISING AND GENERAL
- Install 8" block wall separating Arrow 2000 from Tenant's space
- Remove stairs located at south end of building leading to Suite 202,
remove door and frame and replace with blocks
- Remove blocks from 10' x 12' opening leading to Bakery (West Unit)
23
SCHEDULE "B"
TENANT'S WORK
1. Construction and installation of 4,500 square foot mezzanine.
2. Repair and renovation of all plant floors - fill all crack, holes and
seal.
3. Supply and install 5000 CFM air make up unit with 500 MBH heating complete
includes gas piping, roof support, ductwork, electrical complete.
4. Cutting block walls between units - 2 locations.
5. To remove flues and gas piping from 5 existing ovens and install new roof
flashings and b-vent flues complete and re-pipe gas lines to the units.
6. All plumbing installation, 8 handwash stations and supply and install
recessed drainage floor system for drainage.
7. Remove and/or relocate electrical conduit and fixtures and heating
equipment.
24
SCHEDULE "C"
SPECIAL PROVISIONS
1. In the event that the Landlord proposes to rent any premises which are
adjacent to the Leased Premises, then the Landlord shall give the first
right of refusal to the Tenant to lease such premises on the same terms
and conditions as contained in this Lease other than the Minimum Rent
which shall be the minimum rent offered by any other tenant or prospective
tenant with respect to such adjacent premises as is acceptable to the
Landlord as rent for such other premises, exercisable on notice within
five (5) business days of receipt from the Landlord of the offer for such
space, from the other prospective tenant.
2. Tenant may repay to Landlord the then indicated balance owing on the
Initial Improvements as set out in Schedule D at any time following which
the Tenant will no longer be required to pay Initial Improvements Rent.
3. Tenant shall, at its risk and liability, be permitted access to the Leased
Premises to complete Tenant's Work following the execution of this Lease.
Xxxxxx agrees and acknowledges that during such time the Landlord will be
carrying out Landlord's Work in the Leased Premises and that Landlord will
be using the Leased Premises as a storage area for other tenants of the
building prior to the Commencement Date.
4. Royal King Electric Limited will perform substantially all electrical work
on the Leased Premises prior to the Commencement Date.
5. The Landlord shall use its best 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, 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.
25
SCHEDULE "D"
INITIAL IMPROVEMENTS - AMORTIZATION SCHEDULE
LOAN AMORTIZATION SCHEDULE May 5, 1999
Borrower :International Menu Solutions Description :Leasehold improvements
Lender :1249462 Ontario Limited
Principal: 46500.00 Payment: 872.66 payable every 1 month(s)
Interest rate : 9.7500 Compounded every 1 month(s)
Start :1999/06/01 1st :1999/06/01 Last :2005/02/01 Maturity :2005/02/28
Date Interest Principal Balance
1. 1999/06/01 0.00 872.66 45627.34
2. 1999/07/01 365.62 501.04 45120.30
3. 1999/08/01 373.66 499.00 44621.31
4. 1999/09/01 369.53 503.13 44118.18
5. 1999/10/01 353.53 519.13 43599.05
6. 1999/11/01 361.06 511.60 43087.45
7. 1999/12/01 345.27 527.39 42560.06
8. 2000/01/01 352.46 520.20 42039.86
9. 2000/02/01 347.20 525.46 41514.40
10. 2000/03/01 320.65 552.01 40962.39
11. 2000/04/01 338.30 534.36 40426.03
12. 2000/05/01 323.07 549.59 39878.44
13. 2000/06/01 329.35 543.31 39335.12
14. 2000/07/01 314.34 558.32 39776.80
15. 2000/08/01 320.25 552.41 38224.39
16. 2000/09/01 315.69 556.97 37667.41
17. 2000/10/01 301.01 571.65 37095.76
18. 2000/11/01 306.36 566.30 36529.47
19. 2000/12/01 291.92 580.74 35948.73
20. 2001/01/01 296.89 575.77 35372.96
21. 2001/02/01 292.94 579.72 34793.24
22. 2001/03/01 260.15 612.51 34180.73
23. 2001/04/01 283.07 589.59 33591.13
24. 2001/05/01 269.17 603.49 32987.65
25. 2001/06/01 273.19 599.47 32388.18
26. 2001/07/01 259.53 613.13 31775.05
27. 2001/08/01 263.14 609.52 31165.53
28. 2001/09/03 258.10 614.56 30550.97
29. 2001/10/01 244.81 627.95 29923.12
30. 2001/11/01 247.81 624.85 29298.27
31. 2001/12/01 234.77 637.89 28660.38
32. 2002/01/01 237.35 635.31 28025.07
33. 2002/02/01 232.09 640.57 27384.50
34. 2002/03/01 204.76 667.90 26716.60
35. 2002/04/01 221.25 651.41 26065.19
36. 2002/05/01 208.87 663.79 25401.40
37. 2002/06/01 210.36 662.30 24739.10
38. 2002/07/01 198.24 674.42 24064.68
39. 2002/08/01 199.29 673.37 23391.31
40. 2002/09/01 193.71 678.95 22712.36
41. 2002/10/01 182.00 690.66 22021.70
42. 2002/11/01 182.37 690.29 21331.42
43. 2002/12/01 170.93 701.73 20629.69
44. 2003/01/01 170.84 701.82 19927.87
45. 2003/02/01 165.03 707.63 19220.25
46. 2003/03/01 143.71 728.95 18491.30
47. 2003/04/01 153 14 719.52 17771.77
26
LOAN AMORTIZATION SCHEDULE May 5, 1999
Borrower :International Menu Solutions Description :Leasehold improvements
Lender :1249462 Ontario Limited
Principal: 46500.00 Payment: 872.66 payable every 1 month(s)
Interest rate : 9.7500 Compounded every 1 month(s)
Start :1999/06/01 1st :1999/06/01 Last :2005/02/01 Maturity :2005/02/28
Date Interest Principal Balance
51. 2003/08/01 128.93 743.73 14824.29
52. 2003/09/01 122.77 749.89 14074.40
53. 2003/10/01 112.78 759.88 13314.52
54. 2003/11/01 110.26 762.40 12552.13
55. 2003/12/01 100.58 772.06 11780.05
56. 2004/01/01 97.56 775.10 11004.94
57. 2004/02/01 90.89 781.77 10223.17
58. 2004/03/01 78.96 793.70 9429.47
59. 2004/04/01 77.88 794.78 8634.69
60. 2004/05/01 69.00 803.66 7831.03
61. 2004/06/01 64.67 807.99 7023.05
62. 2004/07/01 56.12 616.54 6206.51
63. 2004/08/01 51.26 821.40 5385.11
64. 2004/09/01 44.47 828.19 4556.92
65. 2004/10/01 36.42 836.24 3720.68
66. 2004/11/01 30.73 841.93 2878.75
67. 2004/12/01 23.00 849.66 2029.09
68. 2005/01/01 16.76 855.90 1173.19
69. 2005/02/01 9.72 862.94 310.24
70. 2005/02/28 2.24 -2.24 312.48
Total 14026.02 46187.52
27
INDEMNITY AGREEMENT
THIS AGREEMENT, dated June 15, 1999, between:
INTERNATIONAL MENU SOLUTIONS INC.
(the "Indemnifier")
OF THE FIRST PART
- and -
1249462 ONTARIO LIMITED
(the "Landlord")
OF THE SECOND PART
WHEREAS the Indemnifier and the Tenant have requested the Landlord
to enter into a lease (the "Lease") dated June 15, 1999, between it as landlord
and TASTY SELECTIONS INC. as tenant (the "Tenant") relating to premises (the
"Premises") in the property known as PART OF SUITE 108, 000 XXXXXXXXXXX XXXX,
XXXXXXX, XXXXXXX and the Landlord has agreed to do so only if the Indemnifier
executes and delivers this agreement under seal in favour of the Landlord;
NOW THEREFORE for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the Indemnifier), the
Indemnifier hereby agrees with the Landlord as follows:
1. (a) the Indemnifier shall indemnify and save the Landlord harmless from
all reasonable and actual damages, losses and costs incurred by the
Landlord if, during the period which is expressed by Section 4 of
the Lease to be its term, or any renewal thereof, the Landlord does
not receive any amount payable by the Tenant under the Lease for
such period which, if the Lease were in full force and effect and
good standing, would be payable under the Lease;
(b) if the Tenant defaults in the payment of any amount payable under
the Lease or in the due performance of any other obligation of the
Tenant under the Lease and the Tenant fails to cure such default in
accordance with the terms of the Lease the Indemnifier shall
forthwith upon written demand by the Landlord pay to the Landlord
any amount so payable and all reasonable and actual damages, losses
and costs that may arise upon the default by the Tenant in the
payment thereof or in the due performance of any such obligation;
provided the Landlord has complied with the covenants contained in
Section 2 hereof;
(c) the Indemnifier shall be jointly and severally bound with the Tenant
to the Landlord for the performance of the obligations of the Tenant
under the Lease, and its liability shall be that of a direct and
primary obligor and not merely that of a surety;
(d) if the Tenant defaults under the Lease and the Tenant fails to cure
such default in accordance with the terms of the Lease the Landlord
may proceed against the Indemnifier as if it were the Tenant,
provided the Landlord has complied with the covenants contained in
Section 2 hereof, without waiving any of its rights against the
Tenant and without any requirement that the Landlord shall first
have proceeded against the Tenant or had recourse to or exhausted
any of its remedies against the Tenant;
28
2
(e) subject to Section 2 hereof, the obligations of the Indemnifier and
the rights of the Landlord hereunder shall not be affected or in any
way prejudiced or impaired by any delay, neglect or forebearance by
the Landlord in enforcing performance by the Tenant of its
obligations under the Lease or by the granting by the Landlord to
the Tenant of any extension of time or by any waiver by the Landlord
of any of the Tenant's obligations or by any assignment or sublease
or other dealing by the Tenant with the Lease or the premises
whether with or without the consent of the Landlord or by any want
of notice to the Indemnifier or by any dealing between the Landlord
and the Tenant with or without notice to the Indemnifier whereby the
respective obligations and rights of either the Landlord or the
Tenant are amended, or by any other act or failure to act by the
Landlord which would release, discharge or affect the obligations of
the Indemnifier if it were a mere surety, and with the intent that
this indemnity shall not be released or affected or the rights of
the Landlord hereunder in any way impaired (except as otherwise
provided herein) until such time as all the obligations of the
Tenant under the Lease have been fully performed and satisfied;
(f) the obligations of the Indemnifier shall not be released, discharged
or affected by the bankruptcy or insolvency of the Tenant or any
proposal made by it to its creditors or any repudiation of the Lease
pursuant to the Bankruptcy and Insolvency Act (Canada), or any
successor or similar legislation including the Companies' Creditors
Arrangement Act (Canada), or any disclaimer by any trustee in
bankruptcy of the Tenant or by the Tenant ceasing to exist (whether
by winding-up, forfeiture, cancellation or surrender of charter, or
any other circumstance) or by any event terminating the Lease
including a re-entry or termination pursuant to the terms of the
Lease; if a re-entry or termination shall occur under any such
provisions the Landlord may require the Indemnifier to enter into a
lease of the premises as a tenant upon the terms and conditions of
the Lease and for the unexpired residue of the term of the Lease;
(g) the obligations of the Indemnifier hereunder may be assigned by the
Landlord, will benefit and be enforceable by the successors and
assigns of the Landlord and shall bind the heirs, executors and
legal representatives and the successors and assigns of the
Indemnifier; and
(h) this agreement shall be governed by the laws of the Province of
Ontario.
2. The Landlord hereby covenants and agrees to and with the Indemnifier that,
following its receipt of written notice from the Indemnifier that the
Indemnifier is not a "non-arms length" party to the Tenant (as the term
"non-arms length" is defined in the Income Tax Act (Canada)), it shall:
(a) simultaneously with the giving of any notice of default to the
Tenant, provide the Indemnifier with notice of any such default;
(b) not terminate or surrender the Lease for any reason without giving
the Tenant prior written notice of its intention to terminate or
surrender the Lease;
(c) the Landlord will, simultaneously with the giving of any notice of
default to the Tenant, provide the Indemnifer with notice of any
such default and will grant to the Indemnifier the right to cure any
such default within the cure provisions set out in the Lease; and
(d) not amend, vary or assign the Lease in any way whatsoever without
obtaining the prior written consent of the Indemnifier and any such
notice requesting consent shall contain details satisfactory to the
Indemnifier, acting reasonably, with respect to such amendment,
variation or assignment.
29
3
3. In the event of re-entry and/or termination of the Lease, any net payments
received by the Landlord, after deducting all reasonable costs and expenses of
re-entry and reletting the Premises, shall be credited from time to time to the
account of the Indemnifier to compensate the Indemnifier for (but not exceed)
any amounts it paid to the Landlord in connection with its indemnification of
the obligations of the Tenant.
4. No modification of this Indemnity Agreement shall be effective unless it is
in writing and is executed or initialed by both the Indemnifier and the
Landlord.
The Indemnifier acknowledges receipt of an executed copy of the
Lease and covenants, represents and warrants that it has full power, capacity
and authority to enter into this agreement and to perform its obligations
hereunder and that the person(s) who have executed this agreement on behalf of
the Indemnifier have the authority to bind the Indemnifier. Whenever any
reference is made herein to the Lease or the obligations of the Tenant
thereunder, such reference shall be deemed to include any and all agreements and
instruments executed by the Tenant concurrently with the Lease or pursuant
thereto and which relate to the Premises, and shall be deemed to include the
Tenant's obligations under such agreements and instruments, including. without
limitation any agreement with respect to the work to be performed by the Tenant
or by the Landlord on its behalf with respect to the construction of leasehold
improvements and fixtures in the Premises.
IN WITNESS WHEREOF the Indemnifier has executed this agreement under
seal.
SIGNED, SEALED and DELIVERED ) 1249462 ONTARIO LIMITED
in the presence of )
)
) By: /s/ Xxx Xx Zen
---------------------------- ) -----------------------------------
)
) Title: President
) -----------------------------------
)
)
) INTERNATIONAL MENU SOLUTIONS INC.
)
)
) By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- ) -----------------------------------
)
) Title: President
) -----------------------------------
)
30
[LOGO]
Xxxxxx Associates Limited
A Member of the Royal Group of Companies
February 24, 1999
NorBakco Ltd.
000 Xxxxxxxxxxx Xxxx.
Concord, Ontario
L4K 3Z2
Attention: Xxxxx Xxxxxxx
RE: Available Space for Rent
Confirming our conversation with Xxx Xxxxxx this afternoon, please find detailed
below a detailed breakdown of rent rates for the office and industrial space.
Estimated
Unit # Area Base Rent T.M.I. Monthly Amount G.S.T. Total Monthly Rent
------ ---- --------- ------ -------------- ------ ------------------
Second Floor:
Offices
202 4,034 Yr. 1 $6.75/sq.ft. $4.25/sq.ft. $3,697.83 $258.85 $3,956.68
Yr. 2 $6.75/sq.ft.
Yr. 3 $7.25/sq.ft.
Reception (Common - 2nd fl.) 606 Yr. 1 $1.25/sq.ft. $4.25/sq.ft. $ 493.17 $ 34.52 $ 527.69
Reception (Common - 1st fl.) 470 Yr. 2 $1.25/sq ft.
Total Reception: 1,076 sq.ft. Yr. 3 $1.75/sq.ft.
Term for office space to be for three years with option to extend to Feb. 28,
2005. Right of first refusal for west offices (suite 203). Exterior glass will
be cleaned and carpet steam cleaned by us. Ground floor reception allowed,
unless other office space is leased to another tenant at which time a 30 day
notice will be given to relocate reception to second floor.
TIMING OF LEASE TO MATCH WITH NORBAKCO LEASE
Industrial Space: TIMING
(As is - broom swept) 12,606 sq.ft. Yr. 1 $3.50/sq.ft. $3.50/sq.ft. $7,353.50 $514.75 $7,868.25 OF LEASE
Yr. 2 $3.75/sq.ft. TO MATCH
Yr. 3 $4.00/sq.ft. WITH
Yr. 4 $4.25/sq.ft. NORBAKCO
Yr. 5 $4.50/sq.ft. LEASE
Yr. 6 $4.50/sq.ft.
March rent will be base rent free for the Industrial space. We will contribute
up-to $3,500 towards electrical improvements and drainage with excess work
billed to NorBakco Ltd., and due on completion.
Should you require any further information, please call Xxx Xxxxxx or myself at
your earliest convenience. A copy of the ground floor and second floor plan is
enclosed for your referral.
SUBJECT TO CLEARING ELECTRICAL CAPACITY
Yours Truly, OK /s/ Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxxxxxx XXXXX XXXXXXX
PRESIDENT
Xxxx Xxxxxxxxxx
/s/ [ILLEGIBLE]
Property Manager
cc. Xxx Xxxxxx
Xxxxx Xxxxxxxxxx
0 Xxxxx Xxxx Xxxx., Xxxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Tel.: (000) 000-0000 Fax: (000) 000-0000
31
THIS LEASE made this __ day of February, 1995.
BETWEEN:
ALCONE HOLDINGS LTD.
a company incorporated under the laws of the Province of Ontario,
hereinafter called the "Landlord" of the FIRST PART.
- AND -
XXXXXXXXX BAKERY LIMITED
a company incorporated under the laws of the Province of Ontario,
hereinafter called the "Tenant" of the SECOND PART.
WHEREAS the Landlord is the owner of a property and building thereon
located at the municipal address of 000 Xxxxxxxxxxx Xxxx, Xxxx xx Xxxxxxx xx xxx
Xxxxxxxx xx Xxxxxxx (hereinafter referred to inclusively as the "Building") and
certain premises thereof being Unit #D, consisting of ground floor office and
plant area representing approximately thirty-four thousand (34,000) square feet
as set out in red on Schedule "A" being a plan of the first floor of the
Building (hereinafter said Unit being referred to as 'Unit D", and said Unit D
along with additional premises which the Tenant may lease hereunder being
referred to as the 'Premises");
NOW THEREFORE WITNESSETH that in consideration of the promises and
mutual covenants and agreements herein contained the parties hereto agree as
follows:
SECTION 1.00 - LEASE OF PREMISES
1.01 DEMISE - NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of
the rents reserved hereunder and the terms, covenants, obligations and
stipulations, conditions and agreements contained herein, the Landlord hereby
leases the Premises to the Tenant and the Tenant hereby leases the Premises from
the Landlord (hereinafter referred to as the "Lease").
1.02 TERM - The Tenant shall have and hold the Premises for and during a term of
ten (10) years commencing on the 1st day of March, 1995, (hereinafter called the
Commencement Date) and thenceforth next ensuing and to be fully completed and
ended on the 28th day of February, 2005, as may be extended by and subject to
any rights of renewal hereunder (hereinafter referred to as the "Term").
1.03 OPTION TO RENEW - The Tenant shall have the option to renew the Lease for
two (2) further periods of five (5) years at a rental rate to be negotiated at
then market value for premises of similar size, usage and nature, provided that
the Tenant gives notice to the Landlord, in writing, of its desire to exercise
the said option at least six (6) months prior to the end of the Term. In the
event that an agreement is not reached as aforesaid, the rental rate shall be
set by arbitration in accordance with the Arbitration Act of Ontario, which
determination shall be binding on both parties. The arbitration committee shall
consist of three (3) arbitrators, with one (1) each to be appointed by the
Landlord and the Tenant, and the third to be agreed upon by both arbitrators.
There shall be no further right of renewal.
1.04 ACCESS PRIOR TO COMMENCEMENT DATE - The Tenant shall be entitled to access
to Premises from the 15th of January, 1995 (hereafter referred to as the
"Occupancy Date"), provided Premises is demised and available for occupancy, and
with occupancy prior to the Commencement Date to be rent free. Should the Tenant
require possession earlier than the Occupancy Date, the parties agree that the
Commencement Date may be adjusted to an earlier date.
-1-
32
1.05 PRO-RATED RENT - The Tenant shall pay all rent due hereunder calculated on
a per diem basis, from the Commencement date, determined in accordance with the
foregoing and following, if the Commencement Date is not the first day of a
month to the first day of the month next following, on the Commencement Date.
1.06 RIGHT OF FIRST REFUSAL - The Tenant shall have a right of first refusal to
lease additional space to the west of Unit D in the amount of twenty-three
thousand (23,000) square feet. If and when such space becomes available the
Tenant shall have the right to acquire same at the fair market rent of similar
space at the time it becomes available. The term applicable to such space shall
coincide with the balance of the Term left on the lease of Unit D and shall
contain the same options of renewal as contained in that lease. If the said
additional space does not become available within four and a half years of the
start of the lease of Unit D, then the Tenant shall have an option exercisable
within the first five (5) years of the term of the lease of Unit D, to lease
alternative adjacent premises to the immediate east of Unit D, consisting of
approximately eleven thousand (11,000) square feet exclusive of office and
showroom space (hereinafter referred to as the "Eastern Space"), exercisable by
notice in writing from the Tenant no later than six (6) months prior to the end
of the five (5) year option period. The lease of the Eastern Space would be at
the fair market rent of similar space at the time of exercise of such option and
would be for a five (5) year term to coincide with the balance of the term of
the premises (Unit D) and shall contain a right of further renewal for two (2)
more five year terms exercisable in tandem with the option to renew on the
premises (Unit D) and upon the same rental terms as established in Section 1.03
herein. In the event that the Landlord does not or cannot grant to the Tenant a
lease to the Eastern Space in accordance with this option, then the Tenant shall
be permitted, at its option, to terminate its lease of Unit D at any time,
provided the Tenant gives at least six (6) months' advance written notice of
such termination.
SECTION 2.00 - RENT
2.01 BASE RENT - From and after the Commencement Date the Tenant shall pay to
the Landlord in lawful money of Canada, without deduction, abatement or set-off
whatsoever, an annual net rent (hereafter referred to as the "Base Rent") as
follows.
(a) From March 1st, 1995 to February 28th, 1996, the annual net
rental shall be the sum of two dollars and seventy-five cents
($2.75) per square foot per annum, being determined as
ninety-three thousand five hundred dollars ($93,500.00),
payable in equal monthly instalments of seven thousand seven
hundred and ninety-one dollars and sixty-six cents
($7,791.66), plus G.S.T.;
(b) From March 1st, 1996 to February 29th, 1997, the annual net
rental shall be the sum of three dollars ($3.00) per square
foot per annum, being determined as one hundred and two
thousand dollars ($102,000.00), payable in equal monthly
instalments of eight thousand five hundred dollars
($8,500.00), plus G.S.T.;
(c) From March 1st, 1997 to February 28th, 1998, the annual net
rental shall be the sum of three dollars and twenty-five cents
($3.25) per square foot per annum, being determined as one
hundred and ten thousand five hundred dollars ($110,500.00),
payable in equal monthly instalments of nine thousand two
hundred and eight dollars and thirty-three cents ($9,208.33),
plus G.S.T.;
(d) From March 1st, 1998 to February 28th, 1999, the annual net
rental shall be the sum of three dollars and seventy-five
cents ($3.75) per square foot per annum, being determined as
one hundred and twenty-seven thousand five hundred dollars
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($127,500.00), payable in equal monthly instalments of ten
thousand six hundred and twenty-five dollars ($10,625.00),
plus G.S.T.;
(e) From March 1st, 1999 to February 29th, 2000, the annual net
rental shall be the sum of four dollars ($4.00) per square
foot per annum, being determined as one hundred and thirty-six
thousand dollars ($136,000.00), payable in equal monthly
instalments of eleven thousand three hundred and thirty-three
dollars and thirty-three cents ($11,333.33), plus G.S.T.;
(f) From March 1st, 2000 to February 28th, 2001, the annual net
rental shall be the sum of four dollars and fifty cents
($4.50) per square foot per annum, being determined as one
hundred and fifty-three thousand dollars ($153,000.00),
payable in equal monthly instalments of twelve thousand seven
hundred and fifty dollars ($12,750.00), plus G.S.T.;
(g) From March 1st, 2001 to February 28th, 2002, the annual net
rental shall be the sum of four dollars and fifty cents
($4.50) per square foot per annum, being determined as one
hundred and fifty-three thousand dollars ($153,000.00),
payable in equal monthly instalments of twelve thousand seven
hundred and fifty dollars ($12,750.00), plus G.S.T.;
(h) From March 1st, 2002 to February 28th, 2003, the annual net
rental shall be the sum of four dollars and fifty cents
($4.50) per square foot per annum, being determined as one
hundred and fifty-three thousand dollars ($153,000.00),
payable in equal monthly instalments of twelve thousand seven
hundred and fifty dollars ($12,750.00), plus G.S.T.;
(i) From March 1st, 2003 to February 29th, 2004, the annual net
rental shall be the sum of four dollars and fifty cents
($4.50) per square foot per annum, being determined as one
hundred and fifty-three thousand dollars ($153,000.00),
payable in equal monthly instalments of twelve thousand seven
hundred and fifty dollars ($12,750.00), plus G.S.T.;
(j) From March 1st, 2004 to February 28th, 2005, the annual net
rental shall be the sum of four dollars and fifty cents
($4.50) per square foot per annum, being determined as one
hundred and fifty-three thousand dollars ($153,000.00),
payable in equal monthly instalments of twelve thousand seven
hundred and fifty dollars ($12,750.00), plus G.S.T.
2.02 ADDITIONAL RENT - Tenant acknowledges that this is a net lease carefree of
all expenses to the Landlord, and the Tenant therefore covenants to be
responsible and pay for, and of which sums the Landlord shall be entitled to
charge to the Tenant, a monthly fee which shall include the following:
(i) water and sewer charges (unless separately metered); all real
estate taxes; outside maintenance including driveways,
trucking and parking areas; lawn and shrubbery maintenance;
snow removal and fire insurance premiums; and any other
expenses of whatever nature traceable to the Tenant's use
and/or occupation of the Premises including but not limited to
any and all utility charges (hydro and gas), telephone
charges, business taxes, local improvement charges, and
heating, ventilation and air conditioning, to the extent such
are not separately metered and/or assessed; and,
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(ii) a reasonable apportionment of expenses incurred in managing,
maintaining and insuring the Building and for structural and
common area maintenance thereof, along with the Landlord's
administration charge of fifteen percent (15%) of all such
expenses;
as apportioned to the Tenant according to the proportion the square footage of
the Premises bears to the square footage of the Building, all of which sums
(hereafter referred to as "Additional Rent") including G.S.T. thereon shall be
estimated by the Landlord for each year of the Term with notice thereof to be
provided to the Tenant by 31st of December of the preceding year of the Term
(except for the first year) and one-twelfth (1/12) of such estimate shall be
payable by the Tenant as Additional Rent every month during a year of the Term;
the Landlord shall reconcile the actual expenses compared to such estimated
expenses by the 31st of March of the year following a year of the Term, shall
provide such reconciliation to the Tenant, and shall either demand from the
Tenant any underpayment which shall be payable immediately upon notice thereof
or return to the Tenant any overpayment; and the Landlord, in addition to any
other rights, shall have the same remedies and may take the same steps for the
recovery of such sums as rent in arrears under the terms of this Lease. For the
first year of the Term the estimated annual Additional Rent shall be the sum of
sixty-six thousand and three hundred dollars ($66,300,00) being a monthly
payment of five thousand two hundred and twenty-five dollars ($5,525.00), plus
G.S.T., where the Landlord warrants and represents that for the first year of
the Term such Additional Rent shall not exceed the aforementioned estimate and
such Additional Rent shall be adjusted once the Tenant receives its own water
meter.
2.03 PREPAID RENT - It is acknowledged that the Tenant has paid the sum of
thirty-three thousand eight hundred and three dollars and eight cents
($33,803.08) to be applied towards payment of the first and last month's Base
Rent and Additional Rent for the Term herein, (where Additional Rent for the
last month of the Term has been estimated as five thousand five hundred and
twenty-five dollars ($5,525.00), plus G.S.T), including G.S.T. on such sums.
Last Month Feb. 2005 $16,901.54
2.04 PAYMENT DATE - The Tenant is to pay Base Rent and Additional Rent on the
first day of each month during the Term.
2.05 POST DATED PAYMENTS - The Tenant is to provide in advance twelve (12)
post-dated cheques for every month for Base Rent and Additional Rent for a year
of the Term no later than March 1st of every year of the Term.
2.06 RENT FREE PERIODS - Notwithstanding the aforementioned, the Landlord agrees
to provide to the Tenant four (4) months during which Base Rent is not payable,
being the months of March, April, May and June of 1995, provided during such
period the Tenant shall remain responsible for Additional Rent, notification of
all proper authorities as to utility hookup and payment for utility charges as
separately metered, business taxes, and all other responsibilities hereunder
this Lease.
2.07 FITTINGS, FIXTURES & PARTITIONS - Subject to the terms of this Lease and to
the written approval of the Landlord, which approval shall not be arbitrarily
withheld, the Tenant may, at its own expense, install any fittings, fixtures and
partitions that may be necessary for the operation of its business, from time to
time during the Term. Upon the date of this Lease the Landlord hereby approves
of the Tenant's installation of fittings, fixtures and partitions, installed to
date subject to inspection thereof by the Landlord's expert to determine
compliance of the Tenant's installations with applicable laws, rules and
regulations governing same, for which any noncompliance the Tenant shall bear
the cost of required rectification.
SECTION 3.00 - TENANT'S COVENANTS
3.01 COVENANT FOR RENT - The Tenant covenants to pay Base Rent and Additional
Rent as rent due under this Lease.
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3.02 TENANT TO PAY BUSINESS TAXES - The Tenant shall pay and discharge on or
before the due date when the same or the instalments for same become due all
business taxes levied on his business.
3.03 OBLIGATION TO REPAIR - The Tenant covenants with the Landlord that,
throughout the Term, the Tenant shall maintain and repair the interior of the
Premises and keep all fixtures and equipment therein in good order and same
state of repair as at the commencement of the Lease, reasonable wear and tear,
damage by fire, lightning and tempest only excepted.
3.04 COMPLIANCE WITH STATUTES, ETC. - The Tenant shall comply promptly with the
requirements of every applicable statute, law and ordinance, and with every
applicable lawful regulation and order with respect to the placement or removal
of any encroachment erected by Tenant or to the condition, equipment,
maintenance, use or occupation of the Premises and to comply with the applicable
regulation or order of the Canadian Underwriter's Association, or of any body
having similar functions, or of any liability or fire insurance company by which
the Tenant and/or Landlord may be responsible for the condition, operation,
maintenance and management of the Premises, it shall be the responsibility of
the Tenant to obtain all necessary municipal licenses and approvals of whatever
nature related to its use and occupancy of the Premises, including an occupancy
permit to carry on its business and operations in or on the Premises in
accordance with the use provided herein this Lease and as permitted by municipal
by-laws. It shall further be the responsibility of the Tenant to obtain any and
all necessary permits to carry on its business in or on the Premises, including
any permits, licenses or inspections as required by relevant authorities
governing such business or use. Provided that if a municipality makes a charge
against the Tenant or against the Premises by reason of the Tenant failing to
observe the requirements of any municipal or provincial by-law or regulation,
the Tenant shall pay such charge and if the Tenant fails to do so upon request,
the Landlord may pay the amount of such charge and recover the amount so paid in
the same manner as rent in arrears and with like powers or distress.
3.05 ENVIRONMENTAL COMPLIANCE -
For the purposes of this section, the following terms shall have the
following meanings respectively:
(i) "Contaminant" includes, but is not limited to, any pollutants,
dangerous substances, liquid waste, industrial waste, toxic
substances, hazardous wastes, hazardous materials, hazardous
substances or contaminants including any of the foregoing
defined in any Environmental Law having jurisdiction over the
Premises;
(ii) "Environmental Activity" means any activity, event or
circumstances in respect of a Contaminant, including, without
limitation, its storage, use, holding, collection, purchase,
accumulation, assessment, generation, manufacture,
construction, processing, treatments, stabilization,
disposition, handling or transportation, or its Release,
escape, leaching, dispersal or migration into the natural
environment, including the movement through or in the air,
soil, surface water or ground water;
(iii) "Environmental Laws" means any and all current and future
applicable international, federal, provincial or municipal
laws, bylaws, statutes, regulations, policies, guidelines,
orders or judgments, relating to the environment, or any
Environmental Activity as it relates to the Premises; and,
(iv) "Release" includes release, spill, pump, escape, xxxxx,
dispose of, infuse, introduce, discharge, spray, inject,
inoculate, abandon, deposit, spill, leak, seep, pour, emit,
empty, throw, dump, place
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and exhaust, or similar.
In addition to any other provision herein this Lease, the Tenant
covenants, represents and warrants during the course of the Term that it shall
not permit the Release of any of the Contaminants into the environment or
municipal services as the result of any Environmental Activity conducted by the
Tenant or those persons for whom it is responsible in law, on the Premises or
Building, and that it shall comply with all Environmental Laws in effect from
time to time. The Tenant shall upon the Landlord's request provide a plan for
waste handling and disposal for dealing with the Contaminants and/or
Environmental Laws, or a contingency plan for dealing with Contaminant Release
should such occur. The Landlord may specify the location or locations in which
Contaminants are to be kept on the Premises.
The Tenant warrants and represents, that to the best of the Tenant's
knowledge after having made and continuing to make all due enquiries and
investigations respecting same, and as follows that:
(a) the Tenant and its respective processes and undertakings have been,
are and continue to be in strict compliance with all Environmental
Laws;
(b) the Tenant has received no notice of non compliance with,
requisition or order made under, the Environmental Laws and does not
know of or have reasonable grounds to know of any acts, matters or
things which would, or may, give rise to the aforementioned notice,
requisition or order being issued in respect of any of the Tenant's
activities or proposed activities, businesses or operations;
(c) the Tenant has at no time been prosecuted to conviction for an
offence of non compliance with any Environmental Laws or settled any
such prosecution short of conviction; and,
(d) for the duration of the Lease to notify the Landlord immediately of
the nature and extent of any such Release if such should or could
possibly occur and to undertake any reasonably necessary remedial
action related thereto as the Landlord may direct.
The Tenant further covenants and agrees to indemnify and save harmless and
shall keep indemnified and continue to save harmless the Landlord from and
against any liability, actions, suits, damages (including lost profits,
consequential damages, interests, penalties, fines or monetary sanctions, and
all legal and expert fees related thereto), losses, costs and expenses incurred
or suffered by the Landlord by reason of or resulting from or in connection
with, or xxxxxxx in any manner whatsoever out of the Release of the
Contaminants, breach of Environmental Laws, or breach of any warranty or
covenant or the inaccuracy of any representation of the Tenant contained or
referred to herein, if such Release of Contaminants or breach of Environmental
Laws has been caused by the Tenant or those persons for whom it is responsible
in law. This covenant shall remain in effect notwithstanding the expiry or
termination of this Lease.
3.06 RIGHT TO INSPECTION - The Tenant shall permit the Landlord and its
officers, agents, servants, employees and contractors upon reasonable notice and
during business hours and in the presence of a duly authorized representative of
the Tenant, during the Term to enter the Premises to inspect and examine the
condition thereof, or for the purpose of making any repairs or work in this
Lease required or permitted to be done, and:
(i) where upon notice in writing given by the Landlord to the
Tenant of any want of repair for which the Tenant is liable
under the terms hereof, the Tenant shall rectify and make good
any such defect in such manner as the Landlord shall direct
within a reasonable time from the delivery of the notice;
provided that if the Tenant shall not repair according to
notice in writing as herein provided, the
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Landlord may enter upon the Premises (without being liable for
any disturbance or damage so caused) and may do such repairs
and of which the cost thereof the Landlord shall be entitled
to charge to the Tenant who shall pay such forthwith on
demand; and the Landlord, in addition to any other rights,
shall have the same remedies and may take the same steps for
the recovery of such sums as rent in arrears under the terms
of this Lease; and,
(ii) where in the opinion of the Landlord there exists on the
Premises any condition, matter or thing which is reasonably
likely to lead to a breach of section 3.05 hereof the Landlord
and its agents may conduct such audits, investigations, tests
and surveys as it deems necessary to assess the nature and
extent of the breach or likely breach and the completion of
necessary remedial action therefor, that the Landlord at its
option may either cause the Tenant to undertake in accordance
with subsection 3.06(i) hereof or which the Landlord shall
undertake, and of which the cost thereof the Landlord shall be
entitled to charge to the Tenant who shall pay such forthwith
on demand; and the Landlord, in addition to any other rights,
shall have the same remedies and may take the same steps for
the recovery of such sums as rent in arrears under the terms
of this Lease. If no breach of s. 3.05 is so found the
Landlord shall bear the costs of such audits, investigations,
tests, and surveys.
3.07 SURRENDER OF LEASED PREMISES - At the expiration or earlier termination of
the Term the Tenant shall peaceably surrender and yield up to the Landlord the
Premises, in a broom swept condition only reasonable wear and tear excepted,
shall remove any Contaminants and shall take all reasonably necessary remedial
action with regard to any Released Contaminants or for conformance to
Environmental Laws (where "Contaminant", "Release" and "Environmental Laws" are
as defined in clause 3.05) as required by the Landlord, and if so required by
the Landlord, the Premises shall be restored to their original condition in the
event of any alterations made thereto. Where any restorations are to be made to
the ceiling of the Premises such work shall be carried out by the Landlord at
the Tenant's expense.
3.08 REMOVAL OF TRADE FIXTURES - At any time within thirty (30) days prior to
the expiration of the Term the Tenant, if not in default under this Lease, may
and at the request of the Landlord shall, remove from the Premises at its cost
all its movable trade fixtures, furniture, equipment and Tenant's work (other
than rugs, carpeting, floor coverings and leaseholds attached in any way to the
Premises) not affixed to the Premises, provided that the Tenant surrenders the
Premises in substantially the same condition as at the Commencement Date and the
Tenant shall repair any damage to the Premises and the Building which may be
occasioned by such removal. On the expiration of the Term all such movable trade
fixtures, furniture, equipment and Xxxxxx's work not so removed shall be deemed
to have become the property of the Landlord.
3.09 EXHIBIT LEASED PREMISES - Upon reasonable notice and during business hours
during the Term the Landlord may exhibit the Premises to prospective purchasers
or mortgagees of the Building and during the six (6) months prior to expiration
of the Term, the Landlord may exhibit the Premises to prospective lessees.
3.10 ASSIGNMENT AND SUBLETTING - The Tenant will not assign, set over, transfer,
sublet or sublease, hypothecate, encumber or in any way deal with or part with,
the whole or any part of the Term or Premises, without written consent first
being obtained from the Landlord, but such consent shall not be unreasonably or
arbitrarily withheld, or delayed provided, however, and it is made a condition
to the giving of such consent that:
(i) The Tenant shall deliver to the Landlord a written request to
such assignment, sublease, etc. together with a copy of the
proposed assignment or sublease and shall provide the Landlord
with such information as the Landlord may reasonably require
with respect
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to the business and financial responsibility and standing of
the proposed assignee or sub-lessee;
(ii) Any assignee or sub-lessee of this Lease shall agree in
writing to assume and perform all of the terms, covenants,
obligations and stipulations, conditions and agreements by
this Lease imposed upon the Tenant herein in the form to be
approved by the solicitor for the Landlord; and,
(iii) No assignments or sublease shall in any manner release the
Tenant from its covenants and obligations hereunder.
3.11 USE OF PREMISES - The Tenant shall occupy the Premises throughout the Term
solely for the purpose of conducting thereon the business of a bakery, and
packaging and distribution of products and services associated therewith.
3.12 INSURANCE - The Tenant shall take out and maintain at its sole cost and
expense and in the names of the Tenant and the Landlord (and the Landlord's
mortgagee, if required by the Landlord) as their respective interests may
appear, insurance coverage of not less than one million dollars ($1,000,000.00)
including without limiting the generality of the foregoing, contents insurance,
property damage insurance, third party liability insurance, business
interruption insurance and legal liability insurance, or in such amount or
amounts as the Landlord may reasonably from time to time stipulate. The Tenant
shall deposit certificates of all such insurance coverages with the Landlord at
the Landlord's request.
3.13 INCREASE IN INSURANCE PREMIUMS - The Tenant shall pay to the Landlord
forthwith on demand thereof any amount by which the basic premium of insurance
paid by the Landlord is increased by reason of any particular use or occupation
by the Tenant of the Premises.
3.14 RE-ENTRY - It is hereby agreed that when:
(a) the Tenant shall be in default in the payment of any rent, for
a period of seven (7) days after having received notice of
default;
(b) the Tenant shall be in default of any of its terms, covenants,
obligations and stipulations, conditions and agreements under
this Lease (other than its covenant to pay rent) and such
default shall have continued for a period of ten (10)
consecutive days after notice by the Landlord to the Tenant
specifying with reasonable particularity the nature of such
default and requiring the same to be remedied, provided
further that if the Tenant is taking steps to remedy and
cannot complete within ten (10) days, such ten (10) day period
shall be extended as the Landlord reasonably determines to
permit the Tenant to remedy;
(c) any property of the Tenant has been sold under a valid writ of
execution, or the Tenant shall have made an assignment for the
benefit of creditors, or have had a receiving order made
against it under the Bankruptcy and Insolvency Act, R.S.C
1985, as amended, or becoming bankrupt or insolvent, or shall
have made application for relief under the provisions of any
statute now or hereafter in force concerning bankrupt or
insolvent debtors, or any action whatever, legislative or
otherwise, shall have been taken with a view to the winding
up, dissolution or liquidation of the Tenant;
(d) any insurance policy is cancelled or not renewed by an insurer
by reason of any particular use or occupation of the Premises,
or;
(e) the Premises shall have been vacated or have become vacant or
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shall have remained unoccupied for a period of fifteen (15)
consecutive days;
then and in any of such cases, the then current month's rent
together with the rent for the three (3) months ensuing shall immediately become
due and payable, and at the option of the Landlord the Term shall become
forfeited and void, and the Landlord without notice or any form of legal process
whatsoever may forthwith re-enter the Premises or any part thereof in the name
of the whole and repossess and enjoy the same as of its former estate, anything
contained in any statute or law to the contrary notwithstanding. Such forfeiture
shall be wholly without prejudice to the right of the Landlord to recover
arrears of rent and damages for any antecedent breach of the terms, covenants,
obligations and stipulations, conditions and agreements of the Tenant under this
Lease. Notwithstanding any such forfeiture the Landlord may subsequently recover
from the Tenant damages for loss of rent suffered by reason of this Lease having
been prematurely determined and it may recover from the Tenant all damages it
may incur with respect thereto including the cost of recovering the Premises.
3.15 LANDLORD ENTITLED TO RE-LET - If the Landlord does not exercise its option
under section 3.14 to terminate this Lease it may nevertheless in the events set
out in section 3.14 from time to time re-enter the Premises without terminating
this Lease and acting reasonably make such alterations and repairs as may be
necessary in order to re-let the Premises or any part thereof as agent for the
Tenant for such period or periods (which may extend beyond the term) and at such
rental or rentals and upon such other terms and conditions as the Landlord in
its sole discretion may deem advisable. Upon each re-letting rent shall be
applied, first, to the payment of any Indebtedness other than rent due from the
Tenant to the Landlord; second, to the payment of any cost and expenses of such
re-letting, including brokerage fees and solicitor's fees and of the costs of
such alterations and repairs; third, to the payment of rent due and unpaid; and
the residue, if any, shall be held by the Landlord and applied in payment of
future rent as the same may become due and payable. The Tenant shall pay to the
Landlord the amount by which the rentals received from such re-letting during
any month are less than the rent payable during that month by the Tenant.
Notwithstanding any such re-letting without termination, the Landlord may at any
time thereafter elect to terminate this Lease. No such re-entry or taking of
possession by the Landlord shall be construed as an election on its part to
re-entry or taking of possession, unless a written notice of such intention has
been given to the Tenant or unless the termination thereof be decreed by a court
of competent jurisdiction.
3.16 DISTRESS - Notwithstanding anything contained in any statute or amendment
or revision thereof, none of the goods or chattels of the said Tenant at any
time during the continuance of the Term hereby created situate on the Premises
shall be exempt from levy by distress for rent in arrears, and that upon any
claim being made for such exemption by the Tenant or on distress being made by
the Landlord this 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 exempt in any such statute, and the Tenant waives every
benefit that might have accrued to the Tenant under any such statute but for
this covenant.
3.17 LANDLORD MAY FOLLOW CHATTELS - In case of removal by the Tenant, except in
the ordinary course of business, of goods and chattels from the Premises, the
Landlord may follow same for a period of thirty (30) days in the same manner as
is provided for in the Landlord and Tenant Act, R.S.O. 1990, as amended, or in
any other act respecting the fraudulent and clandestine removal of goods.
3.18 REMOVAL OF REFUSE - Tenant is not to allow any refuse, garbage or other
loose or objectionable material to accumulate in, on or around the Premises and
is at all times to keep the Premises in clean and wholesome condition, failing
which the Landlord may do so at the Tenant's expense, and upon the termination
of the Term the Tenant is not to leave upon the Premises any rubbish or waste
material but to leave the Premises in a clean and tidy condition. To the extent
the Landlord shall have to undertake removal of refuse it shall be entitled to
charge the expenses thereof
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to the Tenant who shall pay them forthwith on demand; and the Landlord, in
addition to any other rights, shall have the same remedies and may take the same
steps for the recovery of such sums as rent in arrears under the terms of this
Lease. The Tenant is to provide a disposal bin for Xxxxxx's refuse.
3.19 TENANT'S ALTERATIONS - The Tenant shall not make any alteration, repair or
improvement to the Premises nor make, construct, erect, or install any leasehold
improvements in or to the said Premises, except with the prior written approval
of the Landlord which approval not to be unreasonably withheld and in accordance
with the procedures and provisions set out in this section. Before beginning any
such work the Tenant shall deliver to the Landlord sufficient copies of its
plans and specifications thereof and such other information as the Landlord may
reasonably require with respect thereto. All such work shall be carried out by
the Tenant in accordance with the applicable requirements of all regulatory
authorities having jurisdiction with respect thereto and shall be carried out as
expeditiously as possible and in a good and xxxxxxx like manner with first class
new materials. Such work shall comply with the reasonable rules and regulations
as may from time to time be made by the Landlord and shall not be of such kind
or extent as to in any manner weaken the structure of the Building or Premises,
or reduce the value thereof. The Tenant shall obtain all necessary permits for
Tenant's work, which includes any and all work carded out by the Tenant beyond
that done by the Landlord.
3.20 OVERLOADING PREMISES - The Tenant will not bring upon the Building or
Premises, or any part thereof any machinery, equipment, article or thing that by
reason of its weight or size might damage the Building or Premises and will not
at any time overload the floors of the Building or Premises and that if any
damage is caused to the Building or Premises by any machinery, equipment,
article or thing or by overloading or by any act, neglect or misuse on the part
of the Tenant or any of its servants, agents or employees or any person having
business with Tenant, Tenant will forthwith pay to the Landlord the cost of
making good the same. The Landlord acknowledges that the Premises can
accommodate the business of the Tenant.
3.21 EVIDENCE OF PAYMENT - The Tenant shall from time to time at the request of
the Landlord produce for the Landlord, reasonable and satisfactory evidence of
the due payment by the Tenant of all payments required to be made by the Tenant
under this Lease.
3.22 IMPROVEMENTS BECOME PART OF PREMISES - Subject to the terms of this Lease,
any building, erection or improvement placed or erected upon the Premises shall
become part thereof and shall not be removed and shall be subject to all the
provisions of this Lease. No building, erection or improvement shall be erected
upon the Premises herein without the prior written consent of the Landlord which
shall not be unreasonably withheld or delayed.
3.23 OVERHOLDING TENANT - If at the expiration of the Term by elapse of time the
Tenant shall hold over without the written consent of the Landlord for any
reason the tenancy of the Tenant thereafter shall be from month to month and
shall, in the absence of written agreement to the contrary, be at a monthly Base
Rent of twenty thousand dollars ($20,000.00) and subject to all covenants,
obligations and agreements provided for in this Lease, except as to duration and
rights of renewal, if any.
3.24 TENANT TO INDEMNIFY - The Tenant will indemnify and save harmless the
Landlord of and from all liability, fines, suits, claims, damages (including
lost profits, consequential damages, interests, penalties, fines or monetary
sanctions, and all legal and expert fees related thereto), losses, costs and
expenses incurred or suffered by the Landlord by reason of or resulting from or
in connection with, or arising in any manner whatsoever out of, or demands and
actions of any kind or nature to which Landlord shall or may become liable for
or suffer by reason of, liabilities caused by the negligence of the Tenant or
its officers, agents, servants, employees and contractors, and such obligation
to indemnify shall survive any termination of this Lease, anything contained
herein to the contrary notwithstanding.
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SECTION 4.00 - LANDLORD'S COVENANTS
4.01 LANDLORD's WORK - The Landlord shall provide the following at its own cost
on or before the Occupancy Date:
(a) floor to ceiling block as per sketch submitted by the Tenant;
(b) supply 550 volt, 400 amp service, (1) 75KVa Transformer, (1)
575 V, 208A 110V Transformer;
(c) supply separate hydro and gas meters;
(d) supply separate water meter, if cost effectively possible;
and,
(e) leave existing air lines for use by the Tenant, if belonging
to the Landlord and in its possession;
where all work shall be completed to standard grade industrial finish by the
Landlord according to a sketch or drawing of proposed work to be submitted by
the Tenant to the Landlord within five (5) days of the Occupancy Date.
4.02 SIGNAGE - The Tenant may install in, erect or affix upon or about the
Premises, signs and advertising material, which shall remain the property of the
Tenant, and which the Tenant may remove upon the expiration of the Term or shall
remove at the Landlord's request upon the expiration of the Term, provided that
all damage caused by such installation, erection, affixation or removal is
repaired and the Premises left in good repair. All signs and locations thereof
are subject to prior approval in writing by the Landlord, such consent not to be
unreasonably withheld, and must conform with all municipal, local and other
laws, bylaws, ordinances and restrictions, and Landlord's regulations governing
signs, applicable thereto.
4.03 PARKING - The Tenant shall have free access to the side of the Building
proximate to the Premises for shipping purposes, and shall be allowed adequate
parking for staff and office personnel, and overnight trucking.
4.04 WARRANTIES - The Landlord warrants and represents that the roof shall be in
good repair and all mechanical, air conditioning equipment (HVAC), heating,
ventilating, plumbing, sprinkler, shipping doors, washrooms and electrical
systems shall be in good working order, normal wear and tear excepted, prior to
and on the Occupancy Date. The Landlord shall during the Term, at its cost,
maintain the roof and all such systems, as well as the interior of the Premises,
in a good state of repair.
4.05 STRUCTURAL PENETRATION - The Tenant shall be permitted four (4) openings in
the ceiling of the Premises, which shall be made at such time and in such
location according to the prior written consent of the Landlord, which consent
shall not be unreasonably withheld or delayed. The Tenant shall be permitted to
add one (1) receiving door in its shipping office on the Premises with maximum
dimensions of eighty-two (82) inches high and one hundred and thirty-six (136)
inches wide. The Tenant is to perform the work necessary to complete such
openings in a professional and workmanlike manner, at its own cost.
4.06 STRUCTURAL MAINTENANCE AND CAPITAL EXPENDITURES - The Tenant shall not be
responsible for structural maintenance or capital expenditures including major
repairs to or replacement of (which necessity for and scope of repair and
replacement shall be as determined by the Landlord's architect or appointed
expert), the roof or exterior of the Premises, parking lots, mechanical, air
conditioning equipment (HVAC), or main electrical service, unless such repairs
or replacement are caused by the negligence of the Tenant.
4.07 DAMAGE TO PREMISES - Provided that if during the continuation of
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this Lease:
(a) the Building or Premises are totally destroyed by any
casualties so that it cannot be repaired with reasonable
diligence within one hundred and twenty (120) days of the
happening of such injury, as determined by the Landlord's
architect, then the Lease shall cease and become null and void
from the date of such damage or destruction, and the Tenant
shall immediately surrender the Premises and all interest
therein to the Landlord, and the Tenant shall pay rent only to
the time of such surrender and any prepaid rent shall be
returned to the Tenant and in case of destruction or partial
destruction as above mentioned the Landlord may re-enter or
repossess the Premises discharged of this Lease, and may
remove all parties therefrom;
(b) if the Building or the Premises are partially destroyed by
casualty, and can be repaired with reasonable diligence within
one hundred and twenty (120) days from the happening of said
injury, but if the damage is such as to render the Premises
wholly unfit for occupancy, as determined by the Landlord's
architect, then the Base Rent shall not run or accrue after
the said injury, or while the process of repairs is going on,
and the Landlord shall repair the same with all reasonable
speed and then the Base Rent shall recommence immediately
after the said repairs have been completed; or,
(c) if the Building or the Premises are partially destroyed by
casualties, and can be repaired with reasonable diligence
within one hundred and twenty (120) days from the happening of
the said injury, and if the damage is such that the Premises
can be partially used, then until such damage shall have been
repaired, the Base Rent shall xxxxx in proportion that the
part of the Premises rendered unfit for occupancy bears to the
whole of the Premises, all as determined by the Landlord's
architect and the Landlord shall repair same with all
reasonable speed.
4.08 LIMIT OF LANDLORD'S LIABILITY - Except for matters arising from the
negligence of the Landlord, its officers, agents, servants, employees or
contractors, the Landlord shall not be liable or responsible in any way for, and
the Tenant shall not be entitled to any abatement of rent in respect of, any
loss, damage, or injury of any nature whatever that may be suffered or sustained
to any persons or property, and in particular, without limiting the generality
of the foregoing, the Landlord shall not be liable for any loss, damage or
injury of any nature whatever to any person or persons or property resulting
from any defect in the Premises or in the Building or resulting from the
condition or arrangement or interruption or breakdown of any service, equipment,
machinery, utilities or other facility related to the Premises or Building, or
resulting by reason of steam, smoke, water, rain, snow, or other substances
leaking, issuing, flowing or escaping onto any part of the said Premises or by
the Landlord, its servants, employees, agents, contractors, customers, invitees
or licensees, or by other occupants of the Building, or by persons in the
Premises or the Building, or by occupants of adjacent property, or by the
public, nor shall the same constitute an eviction.
4.09 PAYMENT OF MONIES BY LANDLORD - In the event of the Tenant failing to pay
any business taxes, insurance premiums or charges which it has herein covenanted
to pay, and in the manner herein provided, the Landlord may pay the same and
shall be entitled to charge the sums so paid to the Tenant who shall pay them
forthwith on demand; and the Landlord, in addition to any other rights, shall
have the same remedies and may take the same steps for the recovery of such sums
as rent in arrears under the terms of this Lease.
4.11 LANDLORD MAY ASSIGN LEASE - The Landlord declares that it may
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assign its rights under the Lease and in the event that such an assignment is
given and executed by the Landlord and notification is given to the Tenant, the
Tenant if so requested, will, at the Landlord's cost, at any time, and from time
to time:
(a) execute an acknowledgement concerning the performance and
observance by the Landlord of its obligations under this Lease
and concerning the payment by the Tenant of the rent reserved
and other sums payable by and under this Lease as may be
requested by the Landlord or assignees;
(b) certify that this Lease is unmodified and is in full force and
effect (or if modified, stating the modification and the same
is in full force and effect as modified); and,
(c) provide particulars of any monies or security deposited
hereunder with the Landlord and whether or not there is any
existing default on the part of the Landlord of which Tenant
has notice.
It is hereby agreed that any such statement delivered pursuant to
the provisions of this paragraph may be conclusively relied upon, save as to any
default on the part of the Landlord of which the Tenant does not have notice as
of the date thereof. If the Tenant fails to give such statement within
twenty-one (21) days after the receipt of notice requesting same, then the
Landlord may sign such statement as attorney for the Tenant and the contents of
such statement shall be binding on the Tenant.
4.12 QUIET ENJOYMENT - Provided that the Tenant is not in default under the
terms of this Lease, the Tenant shall have quiet enjoyment of the Premises
during the continuance of the Term and any renewals thereof. The Tenant shall
have access to the Leased Premises from the maintenance (front of building) for
receiving guests.
4.13 SUBORDINATION OF LEASEHOLDS - Notwithstanding any clause in the Lease
herein, and any further adjustments thereto that may exist from time to time,
the parties hereto agree that The Toronto Dominion Bank has a first position
charge against the Tenant's leaseholds that are not affixed to the Premises,
ranking ahead of any interest of the Landlord against such leaseholds herein and
having priority over any rights that the Landlord herein may have against such
leaseholds as per the within Lease.
SECTION 5.00 - GENERAL PROVISIONS
5.01 PRIORITY OF LEASE - It is understood and agreed between the parties hereto
that the Term hereby granted shall not have priority over The Toronto Dominion
Bank mortgage presently registered on the property.
5.02 NOTICE OF LEASE - The Tenant shall have the right to register notice of
this Lease at its own expense, and in such case the Tenant will provide at its
own expense a copy of such notice to be registered to the Landlord, which must
be approved and executed by the Landlord, except for sufficient and reasonable
cause, prior to registry.
5.03 PLANNING ACT - This Lease is entered into subject to the condition that it
is to be effective only on obtaining such consents, if any, as may be required
under the Planning Act, R.S.O. 1980, as amended, or any successor legislation or
other statute which may hereafter be passed to take the place of the said Act or
to amend the same, and provided that such consents are granted on conditions
which are acceptable to the Landlord.
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5.04 NOTICE - Any notice required to be given hereunder to the Tenant or in
connection with the Lease, for any purpose, may be sufficiently given if sent by
registered post prepaid to the Tenant at 000 Xxxxxxxxxxx Xxxx, Xxxx #X, Xxxxxxx,
Xxxxxxx, X0X 0X0. Any notice for the Landlord may be sufficiently given if
delivered to the Landlord personally or, if sent by registered post prepaid to
the Landlord at 000 Xxxxxxxxxxx Xxxx, Xxxx #X, Xxxxxxx, Xxxxxxx, X0X 0X0. The
said notice shall be deemed to have been given on the third (3rd) Business Day
following the day when it is deposited in a post office in the Regional
Municipality of York (where "Business Day" in this Lease means any day other
than a Saturday, Sunday or statutory holiday in Ontario).
5.06 TIME OF THE ESSENCE - Time shall be of the essence of this Lease.
5.07 AMENDMENTS - This Lease may not be modified or amended except by instrument
in writing signed by the Landlord and Tenant.
5.08 WAIVER - No waiver by either party of any breach by the other party of any
of its terms, covenants, obligations and stipulations, conditions and agreements
under this Lease shall be a waiver of any subsequent breach or of any other
term, covenant, obligation and stipulation, condition and agreement contained
herein, nor shall any forbearance to seek a remedy for any breach be a waiver of
any rights and remedies with respect to such or any subsequent breach.
5.09 SERVERABILITY - If any terms, covenants, obligations and stipulations,
conditions and agreements contained herein this Lease, or part thereof, or the
application thereof to any person or circumstance shall, to any extent, be
declared invalid or unenforceable by a court of competent jurisdiction, the
remainder of this Lease or the application of such terms, covenants, obligations
and stipulations, conditions and agreements contained herein to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and each term, covenant, obligation and
stipulation, condition and agreement contained herein this Lease shall be
separately valid and enforceable to the fullest extent permitted.
5.10 HEADINGS - The article headings and section headings in this Lease have
been inserted for convenience of reference only and do not form part of this
Lease. Such headings shall not be referred to in the interpretation of this
Lease.
5.11 CHANGES REQUIRED BY CONTEXT - This Lease shall be read with all changes of
gender and number required by the context.
5.12 ASSIGNS - This Lease shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, administrators, executors, successors
and assigns.
5.13 FURTHER ACTIONS - The Tenant and the Landlord covenant with the each other
to do, execute and provide all other things as may be required by the other to
give effect to the terms, covenants, obligations and stipulations, conditions
and agreements contained herein of each other under this Lease.
5.14 APPLICABLE LAW - This Lease shall be construed in accordance with the laws
of the Province of Ontario, and of Canada as applicable therein.
5.15 WHOLE AGREEMENT - This Lease contains the whole agreement
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between the parties with respect to the subject matter of this Lease. There is
no representation, warranty, collateral agreement or condition affecting the
Building, the Premises, or this Lease, or supported by this Lease other than as
expressed in this Lease. The schedules and appendices to this Lease form part of
this Lease.
IN WITNESS WHEREOF the parties hereto have affixed their hand and
corporate seals, as applicable, as attested by the hands of their proper signing
officer xxxx authorized in that behalf.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
) ALCONE HOLDINGS LTD.
)
) ----------------------------------------
) PER. Xxxxxxx Xxxxxxx, President
) I have authority to bind the Corporation
)
)
) XXXXXXXXX BAKERY LIMITED
)
) ----------------------------------------
) PER.
) I have authority to bind the Corporation
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between the parties with respect to the subject matter of this Lease. There is
no representation, warranty, collateral agreement or condition affecting the
Building, the Premises, or this Lease, or supported by this Lease other than as
expressed in this Lease. The schedules and appendices to this Lease form part of
this Lease.
IN WITNESS WHEREOF the parties hereto have affixed their hand and
corporate seals, as applicable, as attested by the hands of their proper signing
officer xxxx authorized in that behalf.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
) ALCONE HOLDINGS LTD.
)
) ----------------------------------------
) PER. Xxxxxxx Xxxxxxx, President
) I have authority to bind the Corporation
)
)
) XXXXXXXXX BAKERY LIMITED
)
) ----------------------------------------
) PER.
) I have authority to bind the Corporation
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