3796 Schedule A Consent to Non Disturbance Bulk Barnp. ~'/ 319/o
SCHEDULE "G"
CONSENT TO NON-DISTURBANCE AGREEMENT
This Agreement made. as of the 1ot11 day of January, 2014
Cop_,,.
BETWEEN:
The Corporation of the Town of Tillsonburg
(hereinafter collectively referred to as the "Head Landlord")
-and-
Bulk Barn Foods Limited
(hereinafter referred to as the "Tenant")
-and-
RMM Tillsoburg Centre Property Inc.
OF THE FIRST PART
OF THE SECOND PART
(hereinafter collectively referred to· as the "Head Tenant" or "Landlord")
OF THE THIRD PART
WHEREAS the Landlord and the Tenant entered into a Lease dated as of the 19t11 day of
December, 2013, and as same may be further amended from time to time (the "Lease"), for premises
containing approximately five thousand, two hundred and thirty three (5,233) square feet (the "Demised
Premises") in the complex located at Tillsonburg Town Centre, in the City of Tillsonburg, in the
Province of Ontario ("Complex") as more particularly described in Schedule "A" attached hereto (the
"Lands");
AND WHEREAS by a Ground Lease dated July 31, 1979 (the "Ground Lease") between the
Head Landlord, as landlord, and the Head Tenant, as tenant, the Head Landlord granted to and in favour
of the Head Tenant a long term leasehold interest in the Lands and the Complex for at= of fifty (50)
years less one (!) day which included the Demised Premises;
AND WHEREAS pursuant to the Ground Lease the Head Landlord granted to the Head Tenant
the full right, power and absolute authority .to enter into agreements to lease for premises at the Complex
and assume all obligations and liabilities in respect of all leases in place at the Complex including the
Lease in respect of the Demised :Premises; and
AND WHEREAS the Tenant has requested the Head Tenant provide from the Head Landlord its
consent and approval in respect of the Lease pursuant to the terms of the Ground Lease and provide the
Tenant with a Non-Disturbance Agreement and the Head Landlord and the Head Tenant have agreed to
enter into this Agreement with respect to fulfilling the foregoing request made by the Tenant subject to
the terms herein contained;
WITNESSETH that in consideration of the sum of One Dollar ($1.00) now paid by each of the
parties hereto to the other (the receipt and sufficiency whereof is hereby acknowledged), the parties
hereto hereby covenant and agree as follows:
1. The Head Landlord hereby consents to the Lease as assumed by the Head Tenant under the
Ground Lease subject to the proviso the giving of this consent shall not be deemed to release or
discharge the obligations of the Head Tenant under _1:jle terms and provisions of the Ground
Lease, including its responsibility for the payment of all rent thereunder and the performance of
the obligations of the Head Tenant under the Ground Lease.
2. The Head Landlord hereby recognizes the Lease and hereby agrees that so long as the terms and
provisions of the Lease are being complied with, the Tenant shall have the right to peacefully and
quietly have, hold and enjoy the Demised Premises pursuant to the Lease without interruption or
disturbance by the Head Landlord or by any person, firm or corporation claiming by, through or
under the Head Landlord and that the Tenant's rights and privileges under the Lease to possess
the Demised Premises shall not be in anyway disturbed, diminished or interfered with by the
Head Landlord.
3. The Head Landlord covenants and agrees should an event of default by the Head Tenant occur
under the Ground Lease which gives rights to and in favour of the Head Landlord to exercise any
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of its rights and remedies under the Ground Lease including the right to terminate the Ground
Lease, or should the Ground Lease be terminated, surrendered or otherwise ended for any other
reason, provided that (i) the Lease has not been previously terminated and {ii) the Tenant is not
in material or chronic default under the terms of the Lease ( except for a material default which
the Tenant, acting bona fide, is actively contesting or remedying in accordance with the terms of
the Lease); then:
(a) the right of possession of the Tenant to the Demised Premises demised pursuant to the
Lease and the Tenant's rights arising out of the Lease shall not be interrupted or
disturbed by the Head Landlord, or its successors or assigns, in. the exercise of any of its
rights pursuant to the Ground Lease; and
(b) the Head. Landlord hereby covenants and agrees that upon the enforcement of any of its
rights pursuant to the Ground Lease, upon the occurrence of an event of default and the
Head Landlord taking possession of the Lands, or the Ground Lease being terminated, or
the Tenant being requested to attorn or pay the rents payable by it under the Lease to the
Head Landlord, as contemplated under section 4 or 7 below, the Head Landlord will
accept and acknowledge the agreement of the Tenant to attorn to and be bound towards
the Head Landlord as if the Head Landlord were the Landlord under the Lease and
permit the Tenant to continue in quiet possession of the Demised Premises in accordance
with the provisions of the Lease and for the term thereof and any renewal thereof without
interruption or disturbance from the Head Landlord or any person claiming by, through
or under the Head Landlord and shall perform or cause to be performed all of the
Landlord's obligations under the Lease thereafter subject to the provisions in section 4
below. The parties agree to execute such further and other instruments as may from time
to time be reasonably required by the Head Landlord or Tenant to evidence the
foregoing.
4. The Tenant hereby acknowledges the priority of the Ground Lease and all amendments,
modifications, supplements or replacements thereto or thereof, from time .to time entered into
over the Lease to the extent same does not derogate from the Tenant's rights under the Lease and
hereby agrees to attorn to and be bound towards the Head Landlord or any purchaser from the
Head Landlord, as its new landlord, and further covenants, acknowledges and agrees that they
shall continue in full force and effect and the covenants, undertakings, obligations and
agreements of the Tenant contained in the Lease shall continue in full force and effect as direct
covenants, undertakings, agreements and obligations of the Tenant to the Head Landlord or such
purchaser. Notwithstanding the foregoing, the Head Landlord and Tenant agree that the
aforesaid covenants, undertakings and agreements herein set out in this section shall at all times
be subject to any claims or set offs set out in any estoppel certificate which may be provided by
the Tenant to the Head Landlord or any purchaser, as the case may be;
5. If at any time during the currency of the. Lease, a default occurs in the performance of any
covenant or obligation of the Head Tenant in respect of which Tenant has delivered notice to the
Landlord, Tenant shall give the Head Landlord a copy of any such written notice delivered to the
Landlord in accordance with the notice provision set out herein. The Head Landlord shall within
five (5) business days after receipt of such notice advise the Tenant in writing if it is prepared to
undertake to remedy the default. If it fails to so notify the Tenant, the Tenant shall be at liberty
to thereafter exercise such remedies as the Tenant has pursuant to the Lease. If the Head
Landlord delivers notice so undertaking, the Head Landlord shall within a reasonable period of
time (not to exceed fifteen (15) days thereafter) commence and continue to diligently remedy the
default as agent of the Head Tenant or by other means as will avoid· the termination of the Lease,
and if the default is remedied within the period, the Tenant shall not, by reason of such default,
terminate the Lease.
6. The Tenant covenants and agrees to pay to the Head Landlord all amounts payable by it under
the Lease to the Head Landlord upon receiving written notice from the Head Landlord that it has
succeeded to the interest Gf the Landlord under the Lease or has enforced any assignment of rents
provisions contained in the Ground Lease or other security given by the Head Tenant to the Head
Landlord.
7. It is agreed between the parties hereto that if the Ground Lease merges or is surrendered, section
17 of the Commercial Tenants Act (Ontario) as amended or replaced from time to time (the
"Act") shall apply with the intended effect that the Tenant shall automatically become the direct
tenant of the Head Landlord with respect to the Demised Premises for the balance of the term of
the Lease on all of the same terms and conditions as contained in the Lease.
8. In the event the Head Landlord re-enters the Complex or there is a forfeiting of the Ground
Lease, the Tenant may on its accord and shall at ,the request of the Head Landlord (provided such
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request is given within five (5) business days following such event), exercise its rights as an
under-Jessee under section 21 of the Act, or any like rights under common law, to claim or apply
for an order investing the term of the Lease, and the whole of the Demised Premises in the
Tenant, on all of the same terms and conditions as the Lease, and the Head Landlord shall, at the
request of the Tenant, consent to such claim.
9. If a receiving order in bankruptcy, or winding up order is made against the Head Tenant, the
Tenant may on its own accord and shall at the request of the Head Landlord (provided such
request is given within five (5) business days following such event), exercise its rights as an
under-lessee under subsection 39(2) of the Act or any like rights under common law, to exercise
its election as under-Jessee to stand in the same position with the Head Landlord as though the
Tenant were a direct lessee of the Head Landlord, for the balance of the term of the Lease on all
of the same terms and conditions contained in the Lease, and the Head Landlord shall, at the
request of the Tenant, consent to such exercise provided it is understood and agreed between the
parties hereto the rights of the Tenant shall be limited solely to the rights afforded to it in respect
of the Demised Premises and the Complex only arising under the Lease and no other rights at the
Complex as may be contained in the Ground Lease in favour of the Head Tenant.
10. Neither the Tenant nor its successors or assigns shall enter into any agreement to amend or
modify the Lease which would result in the Tenant paying to the Landlord rent for a period of
greater than one (1) month in advance. Any such agreement made in contravention of the
provisions of this section shall be no force or effect as against the Head Landlord or against any
subsequent purchaser from the Head Landlord, or as against any purchaser and any sale process
in respect of the Head Landlord exercising its rights under the Ground Lease.
11. The Head Tenant and the Tenant hereby acknowledge and confirm to the Head Landlord that:
(a) : The Lease is in full force and effect and in good standing;
(b) No rent has been paid in advance under the Lease save and except as set out in the Lease;
and .
(c) To the best of the Tenant's and the Head Tenant's knowledge, respectively, neither the
Tenant nor the Head Tenant presently has any knowledge of any present claim to set off
againt rents due or to become due, under the Lease which has occurred prior to )he date
hereof.
12. Notices, demands, requests or other instruments under this Agreement will be delivered in
person, by courier, by facsimile or sent by registered mail postage prepaid and addressed:
to the Head Landlord and Head Tenant: c/o SmartCentres
to the Tenant:
with a copy to:
700 Applewood Crescent, Suite 100
Vaughan, Ontario
L4K5X3
Attention: L~gal Department
55 Leek Crescent
Beaver CreekBusiness Park
Richmond Hill, Ontario, L4B 3Y2
Attention: Senior Director, Real Estate
David Calder
CAO, Town ofTillsonburg
200 Broadway Street, 2nd Floor,
Tillsonburg, Ontario N4G 5A7
519-688°3009 Ext. 3227
A notice, demand, request or consenf will be considered to have been given or made on the day
that it is delivered in person or by courier or, if mailed, seventy-two (72) hours after the date of
mailing. Any party may notify the others in writing of a change of address and the address
specified in the notice will be considered the address of the party for the giving of notices under
this Agreement. If the postal service is interrupted or substantially delayed, any notice, demand,
or request or other instrument will only be delivered in person or by courier.
13. The foregoing provisions shall be self-operative and effective without the execution of any
further instruments on the part of either of the parties hereto. However, all parties hereby agree
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to execute such further and other instruments as may from time to time be reasonably required by
any other party or any purchaser to evidence such priority and attornment.
14. This Agreement may not be modified other than by an agreement in writing signed by the parties.
15. Tiris Agreement shall enure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Upon the sale of the lands described in Schedule "A" by the
Head Landlord, to any purchaser who provides Tenant with an acknowledgement agreeing to be
bound by this Agreement, and a copy of such acknowledgment being provided to the Tenant, the
Head Landlord shall be released from all its obligations hereunder.
16. For the purposes of this Agreement, the expressions "all of the same terms and conditions of the
Lease" shall mean all of the rights, benefits, obligations, terms and conditions, personal or
otherwise regardless whether they "run with the land".
1 7. The parties agree that this Agreement shall be governed by and construed and interpreted in
accordance with the laws of the Province of Ontario and the parties attorn to the jurisdiction of
the courts of the Province of Ontario.
18. This Agreement may be executed in any number of counterparts. A party may send a copy of its
executed counterpart to the other party by facsimile transmission instead of delivering a signed
original copy of that counterpart. Each executed counterpart (including each copy sent by
facsimile transmission) shall be deemed to be an original and all executed counterparts taken
together shall constitute one agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first above
written.
HEAD·LANDLORD:
The Corporation of the Town of Tillsonburg
Per:~ e: O :S:S i:-?-~ Per: ······~e =
Name~f'\.<a<. W L Li:o-._
Title: \ ow,.,_ C...\.,-e.r k.
J/W e have the authority to bind the Corporation.
TENANT:
Bulk Barn Foods Limited
Per: ---~-------------Name:
Title:
Per: -----------------Name:
Title:
J/W e have the authority to bind the Corporation.
LANl!LORD_;
RMM Tillsonburg Centre Property Inc.
Per: --------------------Name:
Title:
Per:. ___________________ _
Name:
Title:
J/W e have the authority to bind the Corporation.
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