NOVEMBER 16, 1993
NOVEMBER 25, 1993
NOVEMBER 29, 1993
DECEMBER 7,1993
JANUARY 4,1994
MAY 2, 1994
OMERS REALTY CORPORATION
LANDLORD
- and -
DRAKE, BEAM, MORIN (OTTAWA) INC.
TENANT
LEASE
Part of 15th Floor
360 Albert Street
Constitution Square, Phase I
Ottawa, Ontario
Osler, Hoskin & Harcourt
146960 File No. 8822725
ARTICLE 1 DEFINITIONS .................................................. 1
1.1 Definitions: ...................................................... 1
ARTICLE 2 GENERAL COVENANTS ............................................ 5
2.1 Tenant's Covenants: ............................................... 5
2.2 Landlord's Covenants: ............................................. 5
ARTICLE 3 DEMISE AND TERM .............................................. 5
3.1 Demise of Premises: ............................................... 5
3.2 License Over Certain Common Facilities: ........................... 5
3.3 Term: ............................................................. 5
3.4 Overholding: ...................................................... 6
3.5 Leasehold Improvements: ........................................... 6
ARTICLE 4 RENT ......................................................... 6
4.1 Basic Rent: ....................................................... 6
4.2 Additional Rent: .................................................. 7
4.3 Payment of Additional Rent: ....................................... 7
4.4 Adjustment of Additional Rent: .................................... 7
4.5 Apportionment of Rent: ............................................ 8
4.6 No Right of Set-off: .............................................. 8
4.7 Additional Rent Deemed Rent: ...................................... 8
4.8 Interest on Arrears: .............................................. 8
4.9 Net Lease to Landlord: ............................................ 8
ARTICLE 5 TAXES ........................................................ 8
5.1 Landlord's Taxes: ................................................. 8
5.2 Tenant's Taxes and Sales Taxes: ................................... 9
5.3 Tenant's Contribution to Taxes: ................................... 9
5.4 Payments: ......................................................... 9
ARTICLE 6 SERVICES, COMMON FACILITIES .................................. 9
6.1 Tenant's Contribution to Operating Costs: ......................... 9
6.2 Operation of Regular HVAC System: ................................. 10
6.3 Additional HVAC: .................................................. 10
6.4 Electricity and Other Utilities: .................................. 10
6.5 Operation of Common Facilities: ................................... 11
6.6 Janitorial Services: .............................................. 11
6.7 Security Services: ................................................ 11
6.8 Interruption in Services: ......................................... 12
6.9 Energy Conservation: .............................................. 12
6.10 Pest Control by Tenant: ........................................... 12
ARTICLE 7 USE AND OCCUPANCY OF PREMISES ................................ 12
7.1 Use of Premises: .................................................. 12
7.2 Waste and Nuisance: ............................................... 12
7.3 No Overloading of Premises or Common Use Equipment: ............... 13
7.4 Insurance Cancellation or Increase: ............................... 13
7.5 Observance of Law by Tenant: ...................................... 13
7.6 Rules and Regulations: ............................................ 13
7.7 Signs: ............................................................ 14
7.8 Name of Development/Project: ...................................... 14
ARTICLE 8 ALTERATIONS .................................................. 14
8.1 Alterations by Tenant: ............................................ 14
8.2 Air-Balancing: .................................................... 15
8.3 No Financing by Tenant of Leasehold Improvements: ................. 15
8.4 Liens: ............................................................ 15
8.5 Alterations by Landlord: .......................................... 15
ARTICLE 9 REPAIRS ...................................................... 16
9.1 Landlord's Repairs: ............................................... 16
9.2 Tenant's Repairs: ................................................. 16
9.3 Entry by Landlord to View State of Repair: ........................ 16
9.4 Notice of Defects: ................................................ 16
9.5 Termination or Abatement after Damage: ............................ 16
9.6 No claim by Tenant: ............................................... 18
9.7 Tenant to Leave Premises in Good Repair: .......................... 18
9.8 No Hazardous Substances: .......................................... 18
ARTICLE 10 INSURANCE AND LIABILITY ...................................... 18
10.1 Landlord's Insurance: ............................................. 18
10.2 Tenant's Insurance: ............................................... 19
10.3 Form of Tenant's Insurance: ....................................... 19
10.4 Release of Landlord by Tenant: .................................... 20
10.5 Indemnity of Landlord by Tenant: .................................. 20
ARTICLE 11 ASSIGNMENTS, ETC. BY TENANT AND TRANSFERS ETC. BY LANDLORD ... 20
11.1 Assignments, Subleases, Charges by Tenant: ........................ 20
11.2 Landlord's Rights of Cancellation: ................................ 22
11.3 Continuing Obligations of Tenant: ................................. 22
11.4 Dealings by Landlord: ............................................. 22
11.5 Subordination and Attornment: ..................................... 22
ARTICLE 12 ESTOPPEL CERTIFICATES, REGISTRATION .......................... 23
12.1 Estoppel Certificates: ............................................ 23
ARTICLE 13 UNAVOIDABLE DELAYS ........................................... 23
13.1 Unavoidable Delays: ................................................ 23
ARTICLE 14 LANDLORD'S ACCESS TO PREMISES ................................ 24
14.1 Inspection and Repair: ............................................ 24
14.2 Right to Exhibit Premises: ........................................ 24
ARTICLE 15 DEFAULT ...................................................... 24
15.1 Events of Default: ................................................ 24
15.2 Remedies by Landlord: ............................................. 25
15.3 Additional Self-help Remedy of Landlord: .......................... 26
15.4 Legal Costs: ...................................................... 26
15.5 Remedies Cumulative: .............................................. 26
15.6 Non-Waiver: ....................................................... 26
ARTICLE 16 GENERAL PROVISIONS ........................................... 26
16.1 Entire Agreement: ................................................. 26
16.2 Schedules: ........................................................ 27
16.3 Planning Act: ..................................................... 27
16.4 Survival of Obligations: .......................................... 27
16.5 Severability of Illegal Provisions: ............................... 27
16.6 Governing Law: .................................................... 27
16.7 No Partnership: ................................................... 27
16.8 Number, Gender, Joint and Several Liability: ...................... 27
16.9 Captions: ......................................................... 27
16.10 Time of Essence: .................................................. 27
16.11 Landlord's Agent: ................................................. 28
16.12 Successors and Assigns: ........................................... 28
16.13 Accounting Principles: ............................................ 28
16.14 Other Leases in Building: ......................................... 28
16.15 Notices and Consents, etc.: ....................................... 28
16.16 No Consent During Default: ........................................ 29
16.17 Further Assurances: ............................................... 29
16.18 Tenant's Notice to Vacate: ........................................ 29
16.19 Landlord's Right to Relocate: ..................................... 29
16.20 Other Construction and Shared Common Facilities: .................. 30
ARTICLE 17 ADDITIONAL PROVISIONS ........................................ 31
17.1 Leasehold Allowance ............................................... 31
17.2 License for Parking: .............................................. 31
17.3 Tenant's First Right to Lease Extra Space: ........................ 32
LANDLORD ................................................................... 33
SCHDULES ................................................................... 34
SCHEDULE A Legal Description of Lands and Project ....................... 34
Part 1 - Development ....................................................... 34
360 Albert Street, Ottawa, being Phase I of Constitution Square ......... 34
SCHEDULE B Definition Of Operating Costs ................................ 35
SCHEDULE C RULES AND REGULATIONS ........................................ 38
SCHEDULE D ................................................................. 41
THIS LEASE entered into this 16th day of November, 1993
IN PURSUANCE of the Short Forms of Leases Act of Ontario
BETWEEN:
OMERS REALTY CORPORATION
(hereinafter called the "Landlord")
THE PARTY OF THE FIRST PART
- - and -
DRAKE, BEAM, MORIN (OTTAWA) INC.
(hereinafter called the ATenant@)
THE PARTY OF THE SECOND PART
In consideration of the premises and the mutual covenants, agreements and
conditions herein contained, it is hereby covenanted, agreed and declared
between the parties as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions:
The terms defined herein shall have, for all purposes of this Lease and all
instruments supplemental hereto, the following meanings unless the context
expressly or by necessary implication otherwise requires:
"Additional Rent" means all sums of money, other than Basic Rent, which are
required to be paid by the Tenant pursuant to any provision of this Lease.
"Additional Service" means any service identified as such in this Lease or which
is requested by the Tenant in addition to those supplied by the Landlord as part
of the normal Development service and which the Landlord is prepared to supply
at an additional cost to the Tenant.
"Additional Service Cost" means the additional amount identified as such in this
Lease or payable by the Tenant to the Landlord for any Additional Service.
"Basic Rent" means the rent payable by the Tenant pursuant to Asection 4.1.
"Building" means the building and all other fixed improvements situate at any
time on the Lands, all of which are municipally known as 360 Albert Street,
Ottawa, Ontario.
"Building Common Facilities" means those Common Facilities serving only the
Development.
"Building Standard" means the building standard established by the Landlord
including matters of design, construction, signage and/or installation to be
observed by the tenants in the Building, including the Tenant, in connection
with Leasehold Improvements, tenant fixtures, signage and chattels, as amended
from time to time by the Landlord, acting reasonably.
"Building Proportionate Share" means a fraction, the numerator of which is the
Total Rentable Area in the Building and the denominator of which is the Total
Rentable Area in that part or those parts of the Project which share a Shared
Common Facility, or such other fraction as the Landlord in its sole discretion
acting reasonably determines is appropriate.
"Business Day" means any day which is not a Saturday, Sunday or a statutory
holiday.
"Business Hours" means the period from 7:00 a.m. to 6:00 p.m. on any Business
Day (subject to change by the Landlord).
"Capital Tax" means any tax or taxes payable under the Corporations Tax Act
(Ontario) or under any existing or proposed federal legislation based upon or
computed by reference to the paid-up capital or place of business of the
Landlord and/or the owners of the Development as determined for the purposes of
such tax or based upon or computed by reference to the taxable capital employed
in Canada, or any similar tax levied, imposed or assessed in the future in lieu
thereof or in addition thereto by any municipal, legislative or parliamentary
authority.
"Common Facilities" means those areas and facilities of the Project or any part
thereof which from time to time serve the Project or any part thereof including,
without limitation, the landscaped areas, sidewalks, public entrance doors,
halls, management offices, public lobbies, lavatories, stairways, passageways,
elevators, service ramps and common loading and receiving facilities, the
Parking Garage and the Common Use Equipment, and which are designated from time
to time by the Landlord for the common use and enjoyment of tenants, including
the Tenant, and their agents, invitees, servants, employees and licensees, or
for use by the public, but excluding rentable premises and other portions of the
Project which are from time to time designated by the Landlord for private use
by one or a limited group of tenants.
"Common Use Equipment" means all mechanical, plumbing, electrical, life safety,
vertical transportation and HVAC equipment, pipes, ducts, wiring, machinery and
equipment and other integral services, utility connections and the like
providing services to the Project or any part thereof.
"Development" means the Lands and the Building.
"Insured Damage" means that part of any damage occurring to the Development,
including the Premises, of which the entire cost of repair (except as to any
deductible amount provided for in the applicable policy or policies of
insurance) is actually recovered by the Landlord under a policy or policies of
insurance from time to time effected by the Landlord pursuant hereto.
"Lands" means the lands described in Part I of Schedule A attached hereto, as
the boundaries thereof may be varied from time to time by additions functionally
integrated therewith or by deletions for road widening or other public purposes.
"Landlord's Taxes" means the aggregate of:
(a) Taxes; and
(b) Other Taxes.
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"Lease" means this Lease including any Schedules, as amended from time to time
pursuant hereto.
"Leasehold Improvements" means all items generally considered as leasehold
improvements, including, without limitation, all fixtures, equipment,
improvements, installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant, or any previous occupant of
the Premises, in the Premises and by or on behalf of other tenants in other
premises in the Building, including all partitions, however affixed and whether
or not movable, and all wall-to-wall carpeting; but excluding trade fixtures,
furniture, unattached or free standing partitions and equipment not of the
nature of fixtures.
"Operating Costs" means operating costs as defined in Schedule B attached
hereto.
"Other Taxes" means all taxes, rates, duties, levies, fees charges and
assessments whatsoever, imposed, assessed, levied or charged now or in the
future by any municipal, regional, provincial, federal, parliamentary or other
government body, corporate authority, agency or commission against the Project
and/or the Landlord and/or the owners of the Project in connection therewith
(including without limitation, business or similar taxes or licence fees in
respect of the business of the Landlord which pertains to the management,
operation and maintenance of the Project) but excluding (unless specifically
referred to above):
(a) such of the foregoing amounts as have been included in Taxes;
(b) income or profit taxes upon the income of the Landlord to the extent
such taxes are not levied in substitution or in lieu of any of the
foregoing;
(c) business or similar taxes or licence fees in respect of any business
carried on by tenants and occupants (including the Tenant) of the
Development; and
(d) Capital Tax (which is included in Operating Costs).
"Parking Garage" means those portions of the Project which are designated from
time to time by the Landlord for parking purposes including, without limitation,
parking spaces and the vehicular ramps and other entrances and exits thereto and
all services, facilities and systems contained exclusively within and serving
such parking facilities, as the same may from time to time be altered, expanded
or reconstructed.
"Premises" means the premises demised to the Tenant under this Lease consisting
of those portions of the 15th floor of the Building: (a) shown cross-hatched on
Schedule D attached hereto, the Gross Rentable Area of which is deemed by the
Landlord and the Tenant to be 3,730.64 square feet (the "Initial Premises") and
(b) shown hatched on the said Schedule D (the "Additional Premises"), the Gross
Rentable Area of which is deemed by the Landlord and the Tenant to be 4,004
square feet.
"Present Value" means the value determined by using an annual discount rate
equal to the annual rate of interest, in effect as of such date of default,
announced by the Canadian Imperial Bank of Commerce as its prime rate, being the
reference rate used by it to determine interest for loans in Canadian dollars to
Canadian customers, less 3%.
"Project" means the lands more particularly described in Part II of Schedule A
attached hereto together with all buildings and all other fixed improvements
situate at any time thereon.
"Rate of Interest" means the annual rate of interest announced from time to time
by the Canadian Imperial Bank of Commerce as the reference rate of interest then
in effect for loans to customers of varying degrees of credit-worthiness plus
5%, adjusted from time to time to reflect changes in such rate.
"Rent" means Basic Rent and Additional Rent.
-3-
"Rentable Area", "Gross Rentable Area" and "Net Rentable Area" mean the number
of square feet of floor area determined in accordance with the Landlord's
standard of floor measurement.
"Sales Taxes" means all business transfer, multi-stage sales, sales, use,
consumption, value-added or other similar taxes imposed by the Government of
Canada or any provincial or local government upon the Landlord, or the Tenant or
in respect of this Lease, or the payments made by the Tenant hereunder or the
goods and services provided by the Landlord hereunder including, without
limitation, the rental of the Premises and the provision of administrative
services to the Tenant hereunder.
"Shared Common Facilities" means those Common Facilities serving the Development
and also another part or parts of the Project.
"Taxes" means all taxes, rates, duties, levies, fees, charges, sewer levies,
local improvement rates, and assessments whatsoever, imposed, assessed, levied
or charged now or in the future by any school, municipal, regional, provincial,
federal, parliamentary or other governmental body, corporate authority, agency
or commission (including, without limitation, school boards and utility
commissions), against the Development and/or the Landlord in connection
therewith, but excluding (unless specifically referred to above):
(a) income or profit taxes upon the income of the Landlord to the extent
such taxes are not levied in substitution or in lieu of any of the
foregoing;
(b) business or similar taxes or licence fees in respect of the business
of the Landlord which pertains to the management, operation and
maintenance of the Development (which are included in Other Taxes);
(c) business or similar taxes or licence fees in respect of any business
carried on by tenants and occupants (including the Tenant) of the
Development; and
(d) Capital Tax (which is included in Operating Costs).
"Tenant's Proportionate Share" means a fraction having as its numerator the
Gross Rentable Area of the Premises and as its denominator the Total Rentable
Area of the Building.
"Tenant's Taxes" means the aggregate of:
(a) all taxes which are attributable to the personal property,
furnishings, fixtures and Leasehold Improvements installed in the
Premises; and
(b) all taxes imposed upon the Tenant which are attributable to the
business, income or occupancy of the Tenant or any other occupant of the
Premises and to the use of any of the Common Facilities by the Tenant or
other occupant of the Premises.
"Term" means the term of this Lease as specified in section 3.3.
"Total Rentable Area of the Building" means the aggregate of all Gross Rentable
Area (including the Premises) of the Building excluding the Parking Garage and
all storage areas outside any premises.
"Total Rentable Area of the Project" means the aggregate of all Gross Rentable
Area (including the Premises) in the Project excluding the Parking Garage and
all storage areas outside any premises.
"Work" has the meaning ascribed thereto in section 8.1.
-4-
ARTICLE 2 GENERAL COVENANTS
2.1 Tenant's Covenants:
The Tenant covenants with the Landlord:
(a) to pay Rent; and
(b) to observe and perform all the covenants and obligations of the
Tenant here in.
2.2 Landlord's Covenants:
The Landlord covenants with the Tenant:
(a) for quiet enjoyment; and
(b) to observe and perform all the covenants and obligations of the
Landlord herein.
ARTICLE 3 DEMISE AND TERM
3.1 Demise of Premises:
The Landlord hereby demises and leases unto the Tenant, and the Tenant hereby
leases from the Landlord, the Premises for the Term and subject to the
provisions of this Lease.
3.2 License Over Certain Common Facilities:
The Landlord hereby grants to the Tenant, its agents, employees, invitees and
other persons transacting business with it, in common with all others entitled
thereto, a license to have the use of certain of the Common Facilities as
designated from time to time by the Landlord, including without limitation the
entrances to the Building, the elevators, stairways, corridors, foyers, lobbies
and lavatories; provided, however, that such use shall be subject to all other
provisions contained in this Lease and to the Landlord's rules and regulations
referred to in section 7.6.
3.3 Term:
TO HAVE AND TO HOLD:
(a) the Initial Premises for a term of eight (8) years (the "Initial
Premises Term") commencing on the 1st day of February, 1994 (the
"Initial Commencement Date") provided that if the Tenant has not
completed its fit-up by the 1st day of January, 1994, the Tenant can
delay the Initial commencement Date by up to thirty (30) days, and,
(b) the Additional Premises for a term of four (4) years (the
"Additional Premises Term") commencing on the 1st day of January, 1998
(the "Additional Commencement Date")
and ending in both instances on the 31st day of December, 2001.
The Initial Term and the Additional Term collectively shall be the "Term".
The Initial Commencement Date and the Additional Date shall collectively be the
"Commencement Date".
-5-
3.4 Overholding:
If the Tenant occupies any part of the Premises after the expiration or sooner
termination of the Term without the written agreement of the Landlord, the
Tenant shall be deemed to be only a monthly tenant at a monthly basic rent
payable in advance and equal to three times the monthly Basic Rent payable
immediately prior to the overholding plus additional rent equivalent to
Additional Rent hereunder and otherwise on the same terms as herein contained,
except for any rights of the Tenant contained in Article 18, if any; and such
tenancy may be terminated by the Tenant on not less than 20 Business Days=
notice to the Landlord and may be terminated by the Landlord on not less than
one Business Day=s notice to the Tenant. Nothing herein shall limit the
liability of the Tenant in damages or otherwise.
3.5 Leasehold Improvements:
(a) Subject to subsections (b) and (c), upon the determination of this
Lease, all Leasehold Improvements in the Premises, including all fixed
partitions (including floor to ceiling partitions which, although
demountable, involve attachment to any floor, ceiling or permanent wall
such that they cannot be removed without damage to the Premises but
excluding the Tenant's movable partitions such as free-standing
partitions or partial height partitions which can be removed without
damage to the Premises and which shall be deemed to be removable trade
fixtures) shall remain upon and be surrendered with the Premises as a
part thereof without disturbance, molestation or injury, and the same
and any trade fixtures not removed by the Tenant are the property of the
Landlord absolutely, free of any liens or encumbrances and without
payment therefor to the Tenant.
(b) The Landlord may, by notice to the Tenant prior to or promptly after
the determination of this Lease, require the removal forthwith, at the
expense of the Tenant, of any or all of the Tenant's trade fixtures and
Leasehold Improvements and the repair forthwith of any damage to the
Premises or the Development caused by such removal, such work to be done
forthwith by or at the direction of the Landlord and at the expense of
the Tenant. If such notice is given prior to the determination of this
Lease, such removal and repair shall be completed by such determination.
(c) Notwithstanding anything herein contained, provided the Tenant has
paid the Rent hereby reserved and performed and observed all the
covenants and conditions herein contained, the Tenant shall have, at the
determination of this Lease, the right to remove its trade fixtures,
provided that the Tenant repairs by the determination of this Lease, at
its own expense, any damage to the Premises or the Development caused by
such removal, such work to be done by or at the direction of the
Landlord and at the expense of the Tenant.
ARTICLE 4 RENT
4.1 Basic Rent:
The Tenant shall pay to the Landlord, yearly and every year during the Term,
without any set-off, compensation or deduction whatsoever, a Basic Rent in
Canadian dollars as follows:
(a) from the 1st day February of 1994 to the 30th day of April, 1994
zero dollars, and
-6-
(b) from the 1st day of May 1994 to the 31st day of December, 1997
$52,228.96 annually payable in advance in equal consecutive monthly
instalments of $4,352.41 on the first day of each and every month during
such period, and
(c) from the 1st day of January, 1998 to the 31st day of December, 2001
$139,223.52 annually payable in advance in equal consecutive monthly
instalments of $11,601.96 on the first day of each and every month
during such period.
Basic Rent has been calculated on the basis that the rental rate for the Initial
Premises is $14.00 per annum during the first four (4) years of the Term (except
for the period January 1st, 1994 to March 30, 1994) and for the Premises is
$18.00 per annum during the balance of the Term per square foot of Gross
Rentable Area in the Premises. If there are changes to the Gross Rentable Area
of the Premises, Basic Rent shall be adjusted accordingly.
4.2 Additional Rent:
The Tenant shall pay to the Landlord, during the Term, when due, as Additional
Rent and without duplication:
(a) that portion of Taxes payable by the Tenant pursuant to section 5.3;
(b) the Tenant's Proportionate Share of Operating Costs pursuant to
section 6.1;
(c) all Additional Service Costs payable by the Tenant; and
(d) all other amounts payable by the Tenant pursuant to this Lease.
4.3 Payment of Additional Rent:
The Additional Rent specified in subsections 4.2(a), (b) and (c) shall be paid
and adjusted with reference to a fiscal period of 12 calendar months, which
shall be the 12 month period ending on December 31st in each year during the
Term unless the Landlord, by notice to the Tenant, shall from time to time have
selected a fiscal period which ends on a different date (but which shall be a 12
month period except where a shorter broken fiscal period occurs at the
commencement or end of the Term or is necessary to accommodate a change in the
fiscal period made during the Term). From time to time throughout the Term, the
Landlord shall give notice to the Tenant of the Landlord's estimate of such
Additional Rent to be paid by the Tenant during the next ensuing fiscal period.
Each estimate shall be reasonable. Such Additional Rent payable by the Tenant
shall be paid in monthly instalments in advance at the same time as payment of
Basic Rent is due hereunder and shall be based on the Landlord's estimate as
aforesaid. From time to time the Landlord may re-estimate, on a reasonable
basis, the amount of such Additional Rent for any fiscal period in which case
the Landlord shall give notice to the Tenant of such re-estimate and fix new
monthly instalments for the remaining balance of such fiscal period so that,
after giving credit for the instalments paid by the Tenant on the basis of the
previous estimate or estimates, all the Additional Rent as estimated or
re-estimated will have been paid during such fiscal period.
All Additional Service Costs shall be paid by the Tenant within five days after
receipt by it from time to time of invoices from the Landlord specifying the
amounts thereof.
-7-
4.4 Adjustment of Additional Rent:
After the end of each fiscal period referred to in section 4.3, the Landlord
shall deliver to the Tenant a statement of the Landlord as to the actual
Additional Rent payable to the Landlord pursuant to subsections 4.2(a), (b) and
(c) in respect of such fiscal period and a calculation of the amount by which
such Additional Rent payable by the Tenant varies from the aggregate instalments
paid by the Tenant on account of such Additional Rent for such fiscal period.
Within 30 days after the receipt of such statement, either the Tenant shall pay
to the Landlord any amount by which the amount found payable by the Tenant with
respect to such fiscal period exceeds the aggregate of the monthly payments made
by it on account thereof or the Landlord shall pay to the Tenant any amount by
which the amount found payable as aforesaid is less than the aggregate of such
monthly payments.
The Tenant shall have the right, exercisable by notice to the Landlord given
within 30 days after receipt of any statement of such Additional Rent submitted
by the Landlord as aforesaid, to verify the accuracy of any amount shown on any
statement by requiring the Landlord to give to the Tenant appropriate
explanations related to such statement.
In the event of any dispute by the Tenant as to the amount of such Additional
Rent payable, a letter of the Landlord's auditors shall be conclusive.
4.5 Apportionment of Rent:
Rent shall be considered as accruing from day to day hereunder. If it is
necessary to calculate Rent for a period of less than one year or less than one
calendar month, an appropriate apportionment and adjustment on a pro rata daily
basis shall be made. Where the calculation of Additional Rent cannot be made
until after the expiration or earlier termination of this Lease, the obligation
of the Tenant to pay such Additional Rent shall survive the expiration or
earlier termination hereof, and such amount shall be paid by the Tenant to the
Landlord forthwith upon demand. If the Term commences on any day other than the
first day of the month, Rent for such fraction of a month shall be adjusted, as
aforesaid, and paid by the Tenant on the commencement date of the Term.
4.6 No Right of Set-off:
The Tenant expressly waives the benefits of section 35 of the Landlord and
Tenant Act R.S.0 1980, Chapter 232 and any amendments thereto and any present or
future enactment of the Province of Ontario permitting the Tenant to claim a
set-off against Rent for any cause whatsoever.
4.7 Additional Rent Deemed Rent:
All Additional Rent shall be deemed to be rent and the Landlord shall have all
rights against the Tenant for default in payment of Additional Rent as for
default in the payment of Basic Rent.
4.8 Interest on Arrears:
If the Tenant fails to pay Rent when due, the Tenant shall pay interest on the
unpaid amount at the Rate of Interest from the date due until the date paid,
without prejudice to and in addition to any other remedy available to the
Landlord under this Lease or at law.
-8-
4.9 Net Lease to Landlord:
This Lease and the Rent payable hereunder shall be absolutely net to the
Landlord, except as expressly provided herein. Any obligation which is not
stated to be that of the Landlord shall be deemed to be that of the Tenant.
ARTICLE 5 TAXES
5.1 Landlord's Taxes:
The Landlord shall pay when due to the taxing authority or authorities having
jurisdiction all Landlord's Taxes.
5.2 Tenant's Taxes and Sales Taxes:
(a) The Tenant shall pay when due, to the taxing authority or
authorities having jurisdiction, all Tenant's Taxes.
(b) The Tenant shall pay to the Landlord when due all Sales Taxes
imposed on the Landlord or the Tenant with respect to Rent payable by
the Tenant hereunder or in respect of the rental of space under this
Lease.
5.3 Tenant's Contribution to Taxes:
(a) The Tenant shall, in respect of each calendar year included in whole
or in part within the Term, pay to the Landlord an amount to cover the
Taxes that are fairly attributable to the Premises for such calendar
year, such amount to be determined by the Landlord acting reasonably. If
there are separate assessments (or, in lieu thereof, calculations made
by authorities having jurisdiction from which separate assessments may,
in the Landlord's opinion, be readily determined) for the Premises for
tax purposes, the Landlord shall use same for purposes of determining
the amount payable by the Tenant pursuant to this subsection (a). The
Tenant shall provide the Landlord with a copy of any separate notices of
assessment for the Premises which the Tenant has received. If there are
no such separate assessments or calculations, the Tenant shall pay the
Tenant's Proportionate Share of all taxes attributable to the
development provided that if the Landlord acting reasonably determines
that another method of calculating the Tenant's contribution to Taxes is
appropriate, such other method shall be used.
(b) The Tenant shall, in respect of each calendar year included in whole
or in part within the Term, pay to the Landlord the amount by which
Taxes are increased above the Taxes which would have otherwise been
payable as a result of the Premises or the Tenant or any other occupant
of the Premises being taxed or assessed in support of separate schools.
(c) Payment by the Tenant of all amounts on account of Taxes shall be
governed by sections 4.3 and 4.4.
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5.4 Payments:
(a) The Landlord may postpone any payment payable by it pursuant to
section 5.1, and the Tenant may postpone any payment payable by it
directly to a taxing authority (but not to the Landlord) pursuant to
this Article in each case to the extent permitted by law and if
prosecuting in good faith any appeal against the imp sition thereof, but
provided that in the case of a postponement by the Tenant which involves
any risk of the Development or any part thereof or the Landlord becoming
liable to assessment, prosecution, fine or other liability, the Tenant
shall have given security in a form and of an amount satisfactory to the
Landlord in respect of such liability and such undertakings as the
Landlord may reasonably require to ensure payment thereof.
(b) Whenever requested by the Landlord, the Tenant shall deliver to the
Landlord receipts for payment of all amounts owing by the Tenant
pursuant to section 5.2 and furnish such other information in connection
therewith as the Landlord may reasonably require.
ARTICLE 6 SERVICES, COMMON FACILITIES
6.1 Tenant's Contribution to Operating Costs:
(a) The Tenant shall, throughout the Term, pay to the Landlord the
Tenant's Proportionate Share of Operating Costs.
(b) Payment by the Tenant of all amounts on account of the Tenant's
Proportionate Share of Operating Costs shall be governed by sections 4.3
and 4.4.
6.2 Operation of Regular HVAC System:
The Landlord shall operate the heating, ventilating and air-conditioning
equipment and systems serving the Premises so as to provide conditions of
adequate comfort in the Premises during Business Hours except during the making
of repairs, inspections, overhauling or replacement.
If such equipment or systems are damaged or destroyed, or, in the opinion of the
Landlord, require repair, inspection, overhauling or replacements the Landlord
shall carry out such work with all reasonable diligence. The Landlord shall not
be responsible for any loss, damages or costs arising from the failure of such
equipment or systems to perform their function. In addition, the Landlord shall
not be responsible for the failure of such equipment and systems to perform
their function if the number of persons in the Premises at any one time exceeds
a reasonable number or if the electrical load from lights and power in the
Premises is excessive or if such failure results from any arrangement of
partitioning in the Premises or change or alteration thereto or if the window
covering on exterior windows is not kept fully closed while the windows are
exposed to direct sunlight or if any use of mechanical or electrical equipment
installed in the Premises generates heat in excess of amounts specified in the
Building Standard, all as determined by the Landlord acting reasonably. The
Landlord shall not be liable for direct, indirect or consequential damage or
damages for personal discomfort or illness of the Tenant or its employees,
invitees or other persons transacting business with it by reason of the
operation or non-operation of such systems and equipment. In no event shall Rent
abate during any non-operation.
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6.3 Additional HVAC:
The Tenant may, upon two days' prior notice to the Landlord, request the
Landlord to provide any service mentioned in section 6.2 to the Premises or any
portion or portions thereof during such non Business Hours as the Tenant
specifies. The Landlord may provide such service and charge the Tenant, as an
Additional Service Cost, the reasonable hourly rate for each hour or part
thereof that such service is provided, such hourly rate to be determined by the
Landlord and to comprise all additional costs incurred in providing such
service.
6.4 Electricity and Other Utilities:
(a) The Landlord shall furnish to the Premises electricity for lighting
and for office equipment capable of operating from the circuits
available and standard to the Building. The Landlord shall also replace,
maintain and repair as and when required all electric light bulbs,
fluorescent tubes and ballasts initially supplied in the Premises and
provide the necessary maintenance and repair of fluorescent and other
Building Standard lighting fixtures located in the Premises.
(b) The Tenant shall pay all charges for excess electricity and other
excess utilities provided to the Premises. The charges for excess
electricity and other excess utilities used in the Premises shall be
determined by the Landlord or its agent using a reasonable method of
calculation which has been communicated to the Tenant.
(c) At the option of the Landlord, the Landlord shall have the right to
install, at the Tenant's sole expense, separate meters as specified by
the Landlord for measuring consumption of energy in the Premises.
6.5 Operation of Common Facilities:
Except as otherwise provided in this Article, the Landlord shall operate,
maintain, clean, light, heat, ventilate and air-condition and supervise and
regulate the Building Common Facilities and the Shared Common Facilities as a
reasonably prudent owner would do having regard to the type and age of the
Development.
All Building Common Facilities and Shared Common Facilities shall be subject at
all times to the exclusive control and management of the Landlord. The Landlord
shall be entitled to operate and police the same, to change the area and
location thereof, to employ all personnel and to make all rules and regulations
necessary for the proper operation and maintenance thereof, and to do such other
acts with respect thereto as the Landlord, acting reasonably, shall determine to
be advisable; provided, however, that the Tenant, unless deprived by reasons
beyond the Landlord's control, shall have the use of such of the Building Common
Facilities as are reasonably necessary for the use of the Premises.
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6.6 Janitorial Services:
(a) The Landlord shall provide to the Premises normal office cleaning
services of a standard (both as to extent and frequency) as a reasonably
prudent owner would do having regard to the type and age of the
Development, the cost of which is to form a part of Operating Costs.
Such services shall include, but not be limited to, causing periodically
as may be appropriate or necessary in keeping with such standard the
floors of the Premises to be swept, the interior surface of the exterior
windows of the Premises to be cleaned, the desks, tables, other
furniture and venetian blinds, if any, in the Premises to be dusted and
any broadloom in the Premises to be vacuumed. Cleaning in the Premises
in addition to the foregoing standard (such as, for example, the washing
of carpets and the dry-cleaning of drapes) shall be the responsibility
of the Tenant, although the Landlord shall have the right to elect to
provide such additional cleaning at the Tenant's expense, as provided in
subsection (c).
(b) The Tenant acknowledges that the Landlord will be relieved from its
cleaning obligation as provided in subsection (a) in respect of any part
of the Premises to which access is not granted to the person or persons
retained to perform such work.
(c) If the Tenant desires any janitor or cleaning services for the
Premises in addition to those contemplated by subsection (a) and if the
Landlord from time to time elects, acting reasonably, to provide
exclusively (either directly or through agents or contractors designated
by it) such additional services or if the Landlord supervises the moving
of furniture or equipment of the Tenant or the making of deliveries to
or from the Premises, such additional services referred to in this
subsection shall be treated as Additional Services and all reasonable
Additional Service Costs shall be paid by the Tenant to the Landlord
forthwith after demand.
(d) The Tenant acknowledges that the Landlord shall not be responsible
for any omission or act of commission on the part of the person or
persons employed or retained to perform the cleaning services referred
to in this section or for any loss thereby sustained by the Tenant, the
Tenant's employees, agents, invitees or others.
6.7 Security Services:
(a) The Landlord may provide security services for the Building so as to
use best efforts to ensure that access to the Building during other than
Business Hours shall be restricted to those persons entitled to be
allowed entry to the Building, provided they comply with the
requirements established by the Landlord.
(b) The Tenant acknowledges that the Landlord shall not be responsible
for any omission or act of commission on the part of any person employed
or retained to provide security service pursuant to this section or for
any loss thereby sustained by the Tenant, the Tenant's employees,
agents, invitees or others.
6.8 Interruption in Services:
The Landlord has the right to stop the use of any facilities and the supply of
any services when necessary by reason of accident or during the making of
repairs, replacements, alterations or improvements, in the judgment of the
Landlord necessary or desirable to be made, until the repairs, replacements,
alterations or improvements have been completed to the satisfaction of the
Landlord provided that all reasonable steps shall be taken to minimize any
interference with the Tenant's use and enjoyment of the Premises, both as to the
extent and duration of such interference. The Landlord shall have no
responsibility or liability for failure to operate any facilities or supply any
services when the use of the facility is stopped as aforesaid or when the
Landlord is prevented from using the facility or supplying the service by
strike, or by orders or regulations of any governmental authority or agency or
by failure of the electric current, gas, steam or water supply necessary to the
operation of any facility or by the failure to obtain such a supply or by any
other cause beyond the Landlord's reasonable control.
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6.9 Energy Conservation:
The Tenant shall comply with any measures the Landlord or any governmental
authority may from time to time introduce to conserve or to reduce consumption
of energy or to reduce or control other Operating Costs or pay as Additional
Rent the cost, to be estimated by the Landlord acting reasonably, of the
additional energy consumed by reason of such non-compliance. The Tenant shall
also convert to whatever system or units of measurement of energy consumption in
the Premises that the Landlord may from time to time adopt.
6.10 Pest Control by Tenant:
The Tenant agrees to institute and carry out and maintain, at its own expense,
such pest control measures in the Premises as the Landlord reasonably requires.
Upon notice from the Landlord, such pest control measures in the Premises shall
be carried out by the Landlord at the Tenant's expense.
ARTICLE 7 USE AND OCCUPANCY OF PREMISES
7.1 Use of Premises:
The Tenant shall use the Premises solely for the business office purpose being
carried on at the commencement of the Term, namely: * (*General Business Office)
Tenant shall not use or permit the Premises to be used for any other purpose.
Without limiting the generality of the foregoing, the Tenant shall not use or
permit the Premises to be used such that the number of persons entering the
Premises is likely to exceed that of ordinary business offices.
7.2 Waste and Nuisance:
The Tenant shall not carry on any business or do or suffer any act or thing
which may constitute or result in a nuisance to the Landlord or to other tenants
of the Development, or do or suffer any waste or damage to the Premises or the
Development.
7.3 No Overloading of Premises or Common Use Equipment:
The Tenant shall not permit or allow any overloading of the floors of the
Premises or the bringing into any part of the Premises of any articles or
fixtures that by reason of their weight or size might damage or endanger the
structure of the Premises or the Building. The Tenant shall not permit or allow
anything that might result in any overloading of or damage to any of the Common
Use Equipment.
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7.4 Insurance Cancellation or Increase:
The Tenant shall not do or omit to do or permit to be done or omitted to be done
in the Premises anything which would cause any policy of insurance on the
Project or the Development to be subject to cancellation or non-renewal or which
would cause an increase in the cost of any insurance which the Landlord is
obligated by this Lease to maintain. Upon any default by the Tenant which would
result in cancellation or non-renewal or an increased cost which the Tenant does
not pay, the Landlord may, at its option, terminate this Lease on 10 days=
notice to the Tenant. Without limiting the foregoing, the Tenant shall pay to
the Landlord, forthwith upon demand, the amount of any such increase in cost.
If any insurance policy is cancelled or threatened by the insurer to be
cancelled or the coverage thereunder is altered in any way because of the use or
occupation of the Premises by the Tenant or by any person for whom the Tenant is
in law responsible, and if the Tenant fails to remedy the condition giving rise
to the cancellation, threatened cancellation or alteration in coverage within 48
hours (or such lesser period as the Landlord acting reasonably may determine,
having regard to the urgency of the situation) after notice to ~he Tenant of
such cancellation or proposed cancellation or alteration, the Landlord may, (but
shall not be obligated to), without further notice or any liability to the
Tenant or any other occupant of the Premises, enter the Premises arid attempt to
remedy such condition or obtain or attempt to obtain insurance coverage in
replacement of the coverage cancelled, threatened to be cancelled or altered in
coverage; and the Tenant shall pay to the Landlord, forthwith upon demand, the
costs associated therewith.
7.5 Observance of Law by Tenant:
The Tenant shall, at its expense, promptly comply with and conform to the
requirements of every applicable statute, law, by-law, regulation, ordinance and
order at any time or from time to time in force during the Term affecting the
Tenant's use of the Premises or any part thereof and/or the business carried on
therein and/or the Leasehold Improvements, trade fixtures, furniture, machinery,
equipment and other facilities located in the Premises and/or any other part of
the Development affected by the Tenant's actions in the Premises.
7.6 Rules and Regulations:
The Tenant shall observe and perform, and shall cause its employees, agents,
invitees and others over whom the Tenant can reasonably be expected to exercise
control to observe and perform the Rules and Regulations attached hereto as
Schedule C and such other rules and regulations or amendments as may be made
from time to time by the Landlord acting reasonably and of which notice has been
given by the Landlord to the Tenant.
The Tenant acknowledges that the Rules and Regulations, as from time to time
amended or replaced, are not necessarily of uniform application but may be
waived in whole or in part in respect of other tenants without affecting their
enforceability with respect to the Tenant and the Premises, and may be waived in
whole or in part with respect to the Premises without waiving them as to future
application to the Premises, and the imposition of such Rules and Regulations
shall not create or imply any obligation of the Landlord to enforce them.
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In any conflict between a provision of this Lease and any of the Rules and
Regulations, the provision of this Lease shall govern.
7.7 Signs:
The Tenant shall not erect any sign or advertising material or inscribe anything
upon any part of the exterior of the Building, or upon the exterior or interior
surfaces of any exterior window or door to the Premises or upon the exterior of
any demising walls, or upon any Common Facilities of the Building, except the
usual tenant identification on the directory board as designated by the Landlord
and except for a sign on the door leading to the Premises which sign shall be
consented to by the Landlord, acting reasonably and all of which are in
accordance with the Building Standard. All such signage shall be installed by
the Landlord at the Tenant's expenses.
7.8 Name of Development/Project:
The Tenant shall, in referring to the Development or the Project, use only the
name AConstitution Square@ or such other name as is designated from time to time
by the Landlord and of which notice has been given by the Landlord to the
Tenant.
ARTICLE 8 ALTERATIONS
8.1 Alterations by Tenant:
(a) The Tenant shall not, without the prior consent of the Landlord,
make, erect, alter or install any Leasehold Improvements or other
alterations or installations to the Premises (the AWork@).
(b) If the Tenant wishes to have any Work done in the Premises, the
Tenant shall apply for the Landlord's consent and furnish such plans,
specifications and designs as shall be necessary to fully describe the
Work. The Landlord's consent thereto shall not be unreasonably withheld
or delayed; provided that, without limitation, any refusal to grant
consent based on grounds that such Work is not in compliance with the
Building Standard or that the Tenant has not posted security with the
Landlord shall be conclusively deemed not to be an unreasonable
withholding of consent.
(c) Subject to the Landlord's consent having been obtained and the
Landlord's reasonable requirements (including the posting of reasonable
security, if requested) being met, the Landlord recognizes the right of
the Tenant to install such interior partitions and other Leasehold
Improvements as are necessary or appropriate to its use and occupancy of
the Premises.
(d) Any Work shall, if the Landlord so elects, be performed by the
Landlord or by contractors who have been designated by the Landlord and
who have contracted directly with the Tenant and agreed to carry out
such Work in a good and workmanlike manner and at a cost to the Tenant
equal to the Landlord's or contractor=s cost plus 10% for supervision
and 10% for profit. In the absence of any such election by the Landlord,
such Work may be performed by contractors retained by the Tenant
pursuant to written contracts which have been approved by the Landlord
(such approval not to be unreasonably withheld) and are subject to all
reasonable conditions which the Landlord imposes. In either event, the
Landlord shall have the right to inspect such Work and require any Work
not being properly done to be corrected, and to approve on a reasonable
basis (which may include considerations involving trade union
affiliations or the lack of them and work jurisdiction, where in the
opinion of the Landlord there is a risk of labour disputes which might
adversely affect the Landlord) the contractors, tradesmen or the
Tenant's own employees (as the case may be) employed by the Tenant in
connection therewith.
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(e) The Tenant shall pay to the Landlord, within 10 days after the
receipt of the Landlord's invoice, the Landlord's reasonable
out-of-pocket costs incurred in examining and approving the Tenant's
plans, specifications and designs and in inspecting the Work and any
additional expenses actually incurred by the Landlord in connection with
such Work together with a coordination and supervision fee equal to 10%
of the total cost to the Tenant of such Work.
(f) On each anniversary of the first day of the Term, the Tenant shall
provide to the Landlord a complete set of up-to-date drawings of the
Premises including without limitation all electrical, mechanical and
architectural drawings.
8.2 Air-Balancing:
The Tenant agrees that it will, at the commencement of the Term and periodically
throughout the Term including, without limitation, whenever any alterations are
made to the Premises, balance the air movement in the Premises at the Tenant's
expense and for this purpose use the air-balancer designated by the Landlord.
8.3 No Financing by Tenant of Leasehold Improvements:
The Tenant shall not create any lien, mortgage, charge, conditional sale
agreement or other encumbrance in respect of its Leasehold Improvements or,
without the consent of the Landlord, with respect to its trade fixtures; nor
shall the Tenant take any action as a consequence of which any such prohibited
lien, mortgage, charge, conditional sale agreement or other encumbrance would
attach to the Premises or to the Development.
8.4 Liens:
(a) In connection with the making, erection, installation or alteration
of Leasehold Improvements and trade fixtures and all other work or
installations or alterations made by or for the Tenant in the Premises,
the Tenant shall comply with every applicable statute, law, by-law,
regulation, ordinance and order affecting the same and affecting the
Development as a result of the actions of the Tenant including, without
limitation, the Construction Lien Act of Ontario, and any other statutes
from time to time applicable thereto (including any provision requiring
or enabling the retention by way of holdback of portions of any sums
payable) and, except as to any such holdback, shall promptly pay all
accounts relating thereto.
(b) Whenever any construction or other lien for work, labour, services
or materials supplied to or for the Tenant or for the cost of which the
Tenant may be in any way liable or claims therefor shall arise or be
filed or any prohibited mortgage, charge, conditional sale agreement or
other encumbrance shall attach, the Tenant shall within five days after
receipt of notice thereof procure and register the discharge thereof,
including any certificate of action registered in respect of any lien,
by payment or in such other manner as may be required or permitted by
law, and failing which the Landlord may make any payments required to
procure and register the discharge of any such liens or encumbrances,
including any certificate of action registered in respect of any lien,
and shall be entitled to be reimbursed by the Tenant as provided in
section 15.3, and its right to reimbursement shall not be affected or
impaired if the Tenant shall then or subsequently establish or claim
that any lien or encumbrance so discharged was without merit or
excessive or subject to any abatement, set-off or defence.
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(c) The Landlord and the Tenant agree that any Work done in the Premises
during the Term by or on behalf of the Tenant shall not be done and
shall be deemed not to have been done at the request of the Landlord. If
any contractor with respect to any Work gives notice to the Landlord
pursuant to section 19 of the Construction Lien Act of Ontario, the
Landlord shall have the right to refuse to assume responsibility.
8.5 Alterations by Landlord:
The Landlord may from time to time at its own expense make alterations to the
Project or any part thereof including the Premises and alterations to or
relocations of the Common Facilities provided that:
(a) the Premises shall not be altered or interfered with in any material
way;
(b) access and services to or benefiting the Premises shall not be
reduced or interrupted (except to the extent which is temporary,
reasonable and unavoidable during the making of repairs or renovations);
and
(c) any alteration shall be such that a reasonably prudent owner of the
Project would make having regard to the type and age of the Project.
ARTICLE 9 REPAIRS
9.1 Landlord's Repairs:
Subject to section 9.5 and except as provided in section 9.2, the Landlord shall
repair and maintain and may, if it so chooses, replace:
(a) the Building including all the external and structural parts of the
Building but excluding any parts thereof which comprise the whole or a
part of the Premises or premises leased to others;
(b) Insured Damage; and
(c) the Common Facilities;
all reasonable dispatch and in a good and workmanlike manner, and so as to keep
the same in good condition and repair.
9.2 Tenant's Repairs:
Subject to section 9.5, the Tenant shall, at its expense and throughout the
Term, keep the Premises and the Leasehold Improvements and trade fixtures
therein and all electrical and telephone outlets and conduits and all mechanical
and electrical equipment within the Premises in good condition and repair,
Insured Damage and repairs which the Landlord is otherwise obliged to repair
only excepted. The Tenant shall also reimburse the Landlord for the cost of
making good any damage to the Development caused by the Tenant. All repairs by
the Tenant shall be subject to section 8.1.
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9.3 Entry by Landlord to View State of Repair:
The Landlord shall be entitled to enter and view the state of repair of the
Premises. The Tenant will repair, according to notice, as specified in section
9.2.
9.4 Notice of Defects:
The Tenant shall give to the Landlord prompt notice of any defect in the
plumbing or utility systems and equipment or any damage to the Premises or any
part thereof howsoever caused; provided that nothing herein shall be construed
so as to require repairs to be made by the Landlord except as expressly provided
in this Lease.
9.5 Termination or Abatement after Damage:
(a) If and whenever the Premises are destroyed or damaged by any cause
to the extent that, in the Landlord's reasonable opinion to be given in
writing to the Tenant within 60 days after the occurrence of such damage
or destruction, they are unable to be repaired or rebuilt within 180
days after such destruction or damage, then either the Landlord or the
Tenant may terminate this Lease by notice to the other, to be given
within 30 days after the giving of the Landlord's written opinion above
referred to, and the Tenant shall immediately thereupon surrender the
Premises and this Lease to the Landlord and Rent shall be apportioned to
the date of such destruction or damage (subject to the payment of Rent
from the date of such destruction or damage to the date of surrender in
the same proportion that the part of the occupiable area of the Premises
fit for occupancy by the Tenant until such surrender is to the total
occupiable area of the Premises).
(b) If and whenever all or any portion of the Building is destroyed or
damaged by reason of any cause (whether or not such portion includes all
or any part of the Premises) to such extent that:
(i) in the Landlord's reasonable opinion to be given to the
Tenant in writing within 60 days after the occurrence of such
damage or destruction, it is unable to be repaired or rebuilt
within 180 days after such destruction or damage; or
(ii) the estimated cost (as estimated by the Landlord) of
repairing or rebuilding the Building exceeds the proceeds of
insurance available to the Landlord for such purpose (or
which would have been available if the Landlord had insured
in compliance with section 10.1);
the Landlord may terminate this Lease upon not less than 30 days' prior written
notice to the Tenant, given within 60 days after the happening of such
destruction or damage, and the Tenant shall immediately thereupon surrender the
Premises and this Lease to the Landlord; and
(iii) if and to the extent that such destruction or damage has
rendered the Premises in whole or in part unfit for occupancy
by the Tenant, Rent shall abate from the date of such
destruction or damage to the date of surrender in the same
proportion that the part of the occupiable area of the
Premises unfit for occupancy is to the total occupiable area
of the Premises; and
(iv) otherwise Rent shall be apportioned to the date of surrender.
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(c) If and whenever the Premises are destroyed or damaged by reason of
any cause and this Lease shall not have been terminated, the Landlord
shall, with all reasonable diligence, make the repairs specified in
section 9.1 and the Tenant shall, with all reasonable diligence and in
compliance with section 8.1, make all repairs to the Premises specified
in section 9.2 and complete the Premises for occupancy for the purpose
described in section 7.1 and in compliance with subsection 7.5(b). If as
a result of any destruction or damage to the Premises which the Landlord
is obligated to repair pursuant to section 9.1, and which is not the
fault of the Tenant or those for whom it is in law responsible and which
does not consist of merely a temporary interruption of or interference
with any utility, service or access, the Premises are rendered in whole
or in part unfit for occupancy by the Tenant, then during the period
commencing on the occurrence of such destruction or damage and ending
upon the earlier of:
(i) the date when both the repairs to the Premises which the
Landlord is obligated to make as aforesaid are completed
sufficiently to enable the Tenant to commence its repairs,
and the Tenant has been allowed a reasonable period of time
which is sufficient for the completion by it of the repairs
it is obligated to make as aforesaid with due diligence; and
(ii) the date upon which no insurance proceeds are available to
the Landlord under its loss of rental income insurance
coverage in respect of the Premises (other than by reason of
the Landlord not carrying the insurance as set out in section
10.1);
Rent shall from time to time abate in the same proportion that the part of the
occupiable area of the Premises from time to time rendered unfit for such
occupancy by reason of such destruction or damage is to the total occupiable
area of the Premises.
9.6 No claim by Tenant:
Except in respect of abatement of Rent as provided for in this Article, no claim
for compensation or damages, direct or indirect shall be made by the Tenant by
reason of the loss of use, inconvenience or otherwise arising from the necessity
of repairing any portion of the Development however the necessity may arise so
long as any such repair to be carried out by the Landlord is carried out with
reasonable diligence.
9.7 Tenant to Leave Premises in Good Repair:
The Tenant shall leave the Premises and (subject to section 3.5) the Leasehold
Improvements, at the expiration or other termination of the Term, in the
condition and repair required of the Tenant under section 9.2.
9.8 No Hazardous Substances:
The Tenant agrees not to install or use in the Premises any hazardous substances
including, without limitation, asbestos, PCBs or propane.
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ARTICLE 10 INSURANCE AND LIABILITY
10.1 Landlord's Insurance:
Subject to its general availability, the Landlord shall effect and maintain
during the Term:
(a) "all risks" property insurance which shall insure the Development
(other than any Leasehold Improvements) on a full replacement cost basis
against loss or damage by perils now or hereafter from time to time
embraced by or defined in a standard all risks insurance policy;
(b) boiler and machinery insurance on objects defined in a standard
comprehensive boiler and machinery policy against accidents as defined
therein;
(c) loss of rental income insurance in an amount sufficient to replace
all Basic Rent and Additional Rent payable under the provisions of this
Lease for an indemnity period determined by the Landlord;
(d) comprehensive general liability insurance covering claims for
personal injury and property damage arising out of all operations in
connection with the management and administration of the Development;
and
(e) such other coverage, or increases in the amount of coverage, as the
Landlord may consider necessary.
For greater certainty, the Tenant acknowledges that the Landlord is not
obligated to insure Leasehold Improvements in the Premises. The insurance to be
maintained by the Landlord shall be that which would be carried by reasonably
prudent owners of properties similar to the Development, all as from time to
time determined by insurance advisers selected by the Landlord, and whose
opinion shall be conclusive. In the alternative, the Landlord shall have the
option of self-insuring.
Notwithstanding the above, the Tenant acknowledges that the Tenant shall remain
responsible for its negligence and the negligence of all persons for whom it is
at law responsible and that no insurable interest is conferred upon the Tenant
under any of the Landlord's insurance policies and that the Tenant shall have no
right to recover any proceeds thereunder or claim any right or title to such
proceeds.
10.2 Tenant's Insurance:
The Tenant shall, at its own expense, take out and keep in force during the Term
and such other times as the Tenant is in occupation or possession of the
Premises or any part thereof:
(a) comprehensive insurance of the type commonly called general public
liability, which shall include coverage for personal injury, broad
blanket contractual liability, employer's liability, owner's protective
liability, all risks Tenant's legal liability, non-owned automobile
liability, bodily injury, death and property damage, all on an
occurrence basis with respect to the business carried on in the Premises
and the Tenant's use and occupancy of the Premises and its use of the
Common Facilities or of any other part of the Building, with coverage
for any one occurrence or claim of not less than $5,000,000 or such
other amount as the Landlord may from time to time reasonably require
upon not less than 30 days' notice at any time during the Term, which
insurance shall contain a severability of interest clause and a
cross-liability clause;
(b) "all-risks" property insurance covering the Leasehold Improvements
and other items excluded from the definition of Leasehold Improvements,
trade fixtures, and the furniture and equipment in the Premises on a
full replacement basis, with an agreed amount co-insurance clause and
by-law endorsement and which insurance shall provide that any proceeds
recoverable with respect to Leasehold Improvements shall be payable to
the Landlord (but the Landlord agrees to make available such proceeds
toward the repair or replacement of the insured property if this Lease
is not terminated pursuant to any other provisions hereof); and
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(c) insurance against such other perils and in such amounts as the
Landlord or any mortgagee of the Landlord or the Tenant may from time to
time reasonably require upon not less than 60 days' notice, such
requirement to be made on the basis that the required insurance is
customary at the time in the City of Ottawa for tenants of buildings
similar to the Building.
10.3 Form of Tenant's Insurance:
All insurance required to be maintained by the Tenant hereunder shall be on
terms and with insurers to which the Landlord has no reasonable objection. Each
policy shall (a) contain a waiver by the insurer of any rights of subrogation or
indemnity or any other claim to which the insurer might otherwise be entitled
against the Landlord or the directors, officers, agents or employees of the
Landlord, (b) name the Landlord and its directors, officers, agents and
employees as additional insureds, (c) be primary, noncontributory with and not
excess of any insurance available to the Landlord and (d) contain an undertaking
by the insurer that no material change adverse to the Landlord or the Tenant
will be made and the policy will not lapse or be cancelled or not be renewed,
except after not less than 30 days' prior written notice by registered mail to
the Landlord of the intended change, lapse, cancellation or non-renewal. The
Tenant shall furnish to the Landlord certified copies of the policies of
insurance from time to time effected by the Tenant -and its renewal or
continuation in force, together with evidence as to the method of determination
of full replacement cost of the Tenant's Leasehold Improvements and other items
excluded from the definition of Leasehold Improvements, trade fixtures,
furniture and equipment. If the Landlord reasonably concludes that the full
replacement cost has been underestimated, the Tenant shall forthwith arrange for
any consequent increase in coverage required under section 10.2. If the Tenant
fails to take out, renew or keep in force such insurance, or if the policies
submitted to the Landlord pursuant to the preceding sentence are unacceptable to
the Landlord (or no such policies are submitted within a reasonable period after
request therefor by the Landlord), then the Landlord may give to the Tenant
notice requiring compliance with this section and specifying the respects in
which the Tenant is not then in compliance with this section. If the Tenant does
not, within 72 hours (or such lesser period as the Landlord may reasonably
require having regard to the urgency of the situation), provide appropriate
evidence of compliance with this section, the Landlord may (but shall not be
obligated to) obtain some or all of the additional coverage or other insurance
which the Tenant shall have failed to obtain, without prejudice to any other
rights of the Landlord under this Lease or otherwise, and the Tenant shall pay
all premiums and other costs incurred by the Landlord forthwith upon demand.
10.4 Release of Landlord by Tenant:
The Tenant agrees that neither the Landlord nor its directors, officers, agents,
employees or any others for whom the Landlord is at law responsible shall be
liable to any extent for any personal injury or death of, or loss or damage to
any property belonging to the Tenant or its employees, invitees or licensees or
any other person in, on or about the Development unless resulting from the
actual gross negligence of the Landlord (but only to the extent of such actual
gross negligence). Notwithstanding the foregoing, in no event shall the Landlord
or its directors, officers, agents, employees or any others for whom the
Landlord is at law responsible be liable for (and the Tenant hereby releases the
Landlord and its directors, officers, agents, employees and any others for whom
the Landlord is at law responsible from):
(a) any damage which is caused by steam, water, rain or snow which may
leak into, issue or flow from any part of the Development or from the
pipes or plumbing works, including the sprinkler system, thereof, or
from any other place or quarter, or for any damage caused by or
attributable to the condition or arrangement of any electric or other
wiring or of sprinkler heads, or for any damage caused by anything done
or omitted by any other tenant;
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(b) any act or omission (including theft, malfeasance or negligence) on
the part of any. agent, contractor or person from time to time employed
by it to perform janitorial services, security services, supervision or
any other work in or about the Premises or the Development;
(c) loss or damage, however caused, to money, securities, negotiable
instruments, papers or other valuables of the Tenant; or
(d) loss or damage for which the Tenant does or is required to carry
insurance.
10.5 Indemnity of Landlord by Tenant:
The Tenant shall indemnify and save harmless the Landlord and its directors,
officers, agents and employees against and from any and all expenses, costs,
damages, suits, actions or liabilities arising or growing out of any default by
the Tenant hereunder, and from all claims and demands of every kind and nature
made by any person or persons to or against the Landlord and/or its directors,
officers, agents and employees, for all and every manner of costs, damages or
expenses incurred by or injury or damage to such person or persons or his, her
or their property, which claims or demands may arise howsoever out of the use
and occupation of the Premises by the Tenant or any subtenant or occupant
authorized by the Tenant or by any assignee or sublessee thereof or any of the
above-mentioned or his, her or their servants, agents, assistants, employees,
invitees or other persons entering into the Building to go to the Premises or
any part thereof, and from all costs, counsel fees, expenses and liabilities
incurred in or about any such claim or any action or proceeding brought thereon.
ARTICLE 11 ASSIGNMENTS, ETC. BY TENANT AND TRANSFERS ETC. BY LANDLORD
11.1 Assignments, Subleases, Charges by Tenant:
(a) The Tenant shall not assign this Lease or sublet all or any part of
the Premises or in any way charge, encumber or pledge this Lease or its
interest therein without the consent of the Landlord which shall not be
unreasonably withheld. Without limiting the foregoing, it shall
institute reasonable grounds for any withholding of consent by the
Landlord that, in the Landlord's opinion, (i) the proposed assignee or
subtenant does not have a satisfactory financial condition having regard
to the obligations which it will assume as assignee or subtenant, or
(ii) the proposed assignee or subtenant is a tenant or subtenant of
other space in the Project or (iii) the proposed assignee or subtenant
does not have an established good reputation in the business community,
or (iv) the proposed assignee or subtenant is a Consulate, Embassy,
Trade Commission or other representative of a foreign government, or (v)
where the Premises are intended to be used as medical, dental,
government or quasi government offices, or (vi) it is reasonably
anticipated by the Landlord that the number of persons visiting the
Premises will substantially increase as a result of the proposed
assignment or subletting, or (vii) it is intended or likely that it will
use any part of the Premises for purposes which are not permitted by
this Lease or which are not acceptable to the Landlord, acting
reasonably, or which are not compatible with the other businesses or
activities which are being carried on in the Development or which
contravene any restriction on use in the Building or (viii) where the
return to the Tenant on any proposed assignment or subletting is greater
than the amounts payable by the Tenant hereunder and the Tenant has not
agreed to pay such excess to the Landlord. The Landlord shall be
entitled to withhold consent to assign or sublet arbitrarily where it
exercises its right to termination pursuant to section 11.2.
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(b) Without limitation, the Tenant shall be deemed to have assigned or
sublet in any case where it permits the Premises or any portion thereof
to be occupied by a person or persons other than the Tenant, its
employees and others engaged in carrying on the business of the Tenant,
whether pursuant to assignment, subletting, license or other right, and
shall also include any case where any of the foregoing occurs by
operation of law and, so often as same shall occur, the Tenant shall
give notice to the Landlord and the provisions of this section and
section 11.2 shall apply, mutatis mutandis.
(c) If the Tenant (or any permitted assignee thereof) is a corporation,
then the Tenant shall be deemed to have assigned or sublet in any case
where such number of shares of such corporation or of any parent or
affiliate of such corporation are issued or transferred, whether by
operation of law or otherwise, so as to result in a change in the
effective control of such corporation then, and so often as such a
change of control shall occur, the Tenant shall give notice to the
Landlord and the provisions of this section and section 11.2 shall
apply, mutatis mutandis.
(d) The Landlord shall also have the right of approval prior to any
marketing of space by the Tenant, including prior approval of all
advertising. Without limitation, such marketing shall not state or refer
rental rates.
(e) If the Landlords consent is given, the Tenant shall assign or
sublet, as the case may be, but only upon the terms set out in the offer
submitted to the Landlord pursuant to section 11.2 and not otherwise.
Such assignment or subletting shall occur within 90 days after the
Tenant's request for consent and only upon any assignee or subtenant
entering into an agreement directly with the Landlord and in a form
satisfactory to the Landlord acting reasonably to perform, observe and
keep each and every covenant, proviso, condition and agreement in this
Lease on the part of the Tenant to be performed, observed and kept,
including payment of Rent.
(f) The Tenant shall have the right to assign or sublet to a corporation
affiliated (as that term is defined in the Ontario Business Corporations
Act) with the Tenant without the consent of the Landlord (and the
provisions of subsection 11.2(b) shall not apply), provided that the
Tenant has first given notice to the Landlord and further provided that
the Tenant and its affiliate have first entered into an agreement
directly with the Landlord in a form satisfactory to the Landlord acting
reasonably, whereby the affiliate agrees to perform, observe and keep
each and every covenant, proviso, condition and agreement in this Lease
on the part of the Tenant to be performed, observed and kept, including
payment of Rent and whereby the Tenant and the affiliate agree to remain
affiliated to one another, a breach of which agreement would constitute
a breach of this Lease.
(g) All reasonable costs of the Landlord incurred with respect to this
section shall be paid by the Tenant forthwith after demand.
11.2 Landlord's Rights of Cancellation:
(a) The Tenant shall not assign this Lease or sublet the whole or any
part of the Premises unless:
(i) it shall have received or procured a bona fide written offer
therefor to take an assignment or sublease which is not
inconsistent with, and the acceptance of which would not
breach, any provisions of this Lease if this section is
complied with and which the Tenant has determined to accept
subject to this section being complied with, and
(ii) it shall have requested and obtained the consent in writing
of the Landlord thereto.
Any request for such consent shall be in writing and accompanied by a true copy
of such offer, and the Tenant shall furnish to the Landlord all information
available to the Tenant or any additional information requested by the Landlord,
as to the responsibility, reputation, financial standing and business of the
proposed assignee or sublessee.
(b) Within 15 days after the receipt by the Landlord of such request for
consent and of all information which the Landlord shall have requested
hereunder (and if no such information has been requested, within 15 days
after receipt of such request for consent), the Landlord shall have the
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right upon notice to the Tenant, if the request is to assign this Lease
or sublet the whole of the Premises, to terminate this Lease or, if the
request is to sublet a part of the Premises only, to delete from the
Lease such part of the Premises as are requested to be sublet, in each
case as of a date of the proposed assigning or subletting, as the case
may be. In such event, the Tenant shall surrender the whole or part, as
the case may be, of the Premises in accordance with such notice and Rent
shall be apportioned and paid to the date of surrender and, if a part
only of the Premises is surrendered, Rent shall thereafter be
recalculated. If the Landlord shall not exercise the foregoing right of
termination or deletion, then the provisions of section 11.1 shall
apply.
11.3 Continuing Obligations of Tenant:
(a) No assignment or subletting shall release or relieve the Tenant from
any of its obligations hereunder.
(b) No consent by the Landlord to any assignment or subletting shall be
construed to mean that the Landlord has consented or will consent to any
further assignment or subletting which shall remain subject to the
provisions of this Article.
11.4 Dealings by Landlord:
The Landlord may sell, transfer, charge, encumber or otherwise deal with the
Project or any portion thereof or any interest of the Landlord therein, in every
case without the consent of the Tenant, and without restriction. To the extent
that any purchaser or transferee from the Landlord has become bound by the
covenants and obligations of the Landlord under this Lease, the Landlord shall,
without further written agreement, be freed and relieved of liability with
respect to such covenants and obligations.
11.5 Subordination and Attornment:
The Tenant acknowledges that this Lease is, at the option of any mortgagee or
chargee, subject and subordinate to any and all ground leases, mortgages or
charges (including deeds of trust and mortgage securing bonds, all indentures
supplemental thereto or any other instruments of financing, refinancing or
collateral financing) which may now or hereafter affect the Project, or any part
thereof, and to all renewals, modifications, consolidations, replacements and
extensions thereof. The Tenant agrees to execute promptly any certificate or
instrument in confirmation of such subordination and will, if requested, attorn
to such mortgagee or chargee and the Tenant hereby constitutes the Landlord its
agent and attorney for the purpose of executing any such certificate or
instrument.
ARTICLE 12 ESTOPPEL CERTIFICATES, REGISTRATION
12.1 Estoppel Certificates:
Each of the Landlord and the Tenant agrees that it will at any time and from
time to time upon not less than ten days' notice, execute and deliver to the
other (and, if required, to any prospective purchaser or mortgagee of the
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Development) a certificate in writing as to the status at that time of this
Lease, including as to whether this Lease is unmodified and in full force and
effect (or, if modified, stating the modification and that the same is in full
force and effect as modified), the amount of the Rent then being paid hereunder,
the dates on which the same, by instalments or otherwise, and other charges
hereunder, have been paid, whether or not there is any existing default on the
part of the other of which it has notice, and any other matters pertaining to
this Lease as to which the other shall request a statement.
If any such certificate requested by the Landlord is not returned to the
Landlord within ten days after its request therefor, the Landlord shall have the
right and is hereby appointed by the Tenant as its agent and attorney to prepare
and execute such certificate.
12.2 Registration on Title:
The Tenant shall not register this Lease in full on the title to the Development
or the Project. If the Tenant wishes to register a notice of this Lease or, if
required, a short form thereof, on title to the Development, the Tenant may do
so provided that the Landlord has first approved such notice and the Tenant has
reimbursed the Landlord for the Landlord's costs (including legal costs) of
same.
In the event of any conflict between the terms of this Lease and the terms of
such notice or short form, the terms of this Lease shall prevail.
The Tenant agrees that it will, at its sole expense, discharge and withdraw from
title any such registration within 30 days after the expiration or sooner
termination of this Lease. If such registration is not discharged and withdrawn
during the aforesaid time, the Landlord shall have the right and is hereby
appointed by the Tenant as its agent and attorney to prepare, execute and
register such documentation as is required to discharge and withdraw any such
registration.
ARTICLE 13 UNAVOIDABLE DELAYS
13.1 Unavoidable Delays:
Whenever and to the extent that either the Landlord or the Tenant is unable to
fulfill, or is delayed or restricted in the fulfillment of, any obligation
hereunder in respect of the supply or provision of any service or utility or the
doing of any work or the making of any repairs, by reason of being unable to
obtain the material, goods, equipment, service, utility or labour required to
enable it to fulfill such obligation, or by reason of any statute, law, by-law
or order-in-council or any regulation or order passed or made pursuant thereto,
or by reason of the order or direction of any legislative, administrative or
judicial body, controller or board, or any governmental department or any
governmental officer or other authority having jurisdiction, or by reason of its
inability to procure any licence or permit required therefor, or by reason of
not being able to obtain any permission or authority required therefor, or by
reason of any strikes, lockouts, slow-downs or other combined action of workmen,
or shortages of material, or any other cause beyond its control, other than any
insolvency, lack of funds or other financial cause of delay, the Landlord or the
Tenant, as the case may be, shall be relieved from the fulfillment of such
obligation so long as such cause continues provided always that (except as may
be expressly provided in this Lease) the Tenant shall not be entitled to any
compensation for any inconvenience, or nuisance or discomfort thereby
occasioned, or to cancel or terminate this Lease or to any abatement of Rent.
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ARTICLE 14 LANDLORD'S ACCESS TO PREMISES
14.1 Inspection and Repair:
The Landlord and its authorized agents and employees shall have the right, at
any time and from time to time, to enter the Premises for the purpose of
inspection, providing janitor service, maintenance, making repairs, alterations
or improvements to the Premises or the Project or to have access to utilities
and services, and the Tenant shall provide free and unhampered access for such
purpose and shall not be entitled to compensation for any inconvenience,
nuisance or discomfort caused thereby. The Landlord in exercising its rights
hereunder shall proceed to the extent reasonably possible so as to minimize
interference with the Tenants use and enjoyment of the Premises.
14.2 Right to Exhibit Premises:
The Landlord and its authorized agents and employees shall have the right to
exhibit the Premises to prospective tenants at all reasonable hours during the
last 18 months of the Term. The Landlord and its authorized agents and employees
shall also have the right to enter upon the Premises at all reasonable hours
during the Term for the purpose of exhibiting the Development to any prospective
purchaser or mortgagee thereof.
ARTICLE 15 DEFAULT
15.1 Events of Default:
Each of the following shall be an event of default of the Tenant:
(a) whenever the Tenant defaults in the payment of any Rent and such
default continues for two Business Days after notice to the Tenant; or
(b) whenever the Tenant defaults in the performance of any of its other
obligations hereunder and such default can be remedied by the Tenant but
is not remedied within a period next after notice and which period shall
be:
(i) if the default could reasonably be remedied within 30 days
after notice and provided the Tenant has commenced to remedy
such failure within 10 days after notice and proceeds
thereafter diligently and continuously to remedy it, 30 days;
and
(ii) if the default could not reasonably be remedied within 30
days after notice and provided the Tenant has commenced to
remedy such failure not later than ten days after notice and
proceeds thereafter diligently and continuously to remedy it,
that number of days after notice which would reasonably
suffice for the remedying of such default if the Tenant had
commenced to remedy such default within ten days after notice
and proceeded thereafter diligently and continuously to
remedy it; and
(iii) in any case where the Tenant does not commence to remedy such
default within ten days after notice, ten days; or
(c) whenever the Tenant defaults in the performance of any of its other
obligations hereunder and such default cannot be remedied by the Tenant;
or
(d) if the Tenant is adjudicated to be insolvent or makes an assignment
for the benefit of creditors or in bankruptcy, or is declared bankrupt,
or takes the benefit of any legislation that may be in force for
bankrupt or insolvent debtors or if any proceedings are taken by or
against the Tenant under any winding-up legislation, and such
adjudication, assignment, declaration or proceedings are not set aside
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or revoked within 60 days after the making or taking of the same, or if
the Tenant makes any sale of its assets under the Bulk Sales Act of
Ontario, except to a successor in conjunction with a permitted
assignment of this Lease; or
(e) if the Premises or a substantial part thereof are abandoned or
become vacant or not used or occupied while capable of use and
occupancy, and remain so for a period of 15 days (which does not include
temporary vacancy or non-use for a longer period when necessary to
accommodate the carrying out of renovations in the Premises or a change
in use of the Premises), or if the Premises are used by any other person
or persons other than the Tenant or for any other purpose than that for
which the same were let, in each case without the prior written consent
of the Landlord.
15.2 Remedies by Landlord:
Upon any event of default of the Tenant, in addition to any remedy which the
Landlord may have by this Lease or at law or in equity, the Landlord may, at its
option:
(a) provide, by notice to the Tenant, that the current month=s Rent and
Rent for the next ensuing three months shall thereupon become
immediately due and payable; and/or
(b) terminate this Lease and re-enter and take possession of the
Premises; and/or
(c) enter the Premises as agent of the Tenant, either by force or
otherwise, without being liable for any prosecution therefor, and
without being deemed to have terminated this Lease, and relet the
Premises or any part thereof as the agent of the Tenant, and receive the
rent therefor to be applied on account of the Rent; and/or
(d) exercise its right of distress and the Tenant hereby waives any
present or future limitation on the Landlord's right of distress; and/or
(e) terminate this Lease and re-enter and take possession of the
Premises and provide, by notice to the Tenant, for an immediate payment
by the Tenant of an amount equal to the Present Value, as of the date of
an event of default by the Tenant, of Rent due under this Lease from
such date to the last day of the Term of this Lease. If any part of such
Rent cannot be absolutely determined as of such date, the Landlord shall
estimate same on a reasonable basis. After receipt by the Landlord of
such payment and after the Landlord relets the Premises, the Landlord
shall remit to the Tenant, as and when rent is received therefor, an
amount equal to (i) the lesser of (1) the amount received by the
Landlord for any period and (2) the amount that would have been payable
by the Tenant under this Lease for the same period, less (ii) 10% of
such sum in (i) as an administration fee to the Landlord; and/or
(f) without terminating this Lease, demand immediate payment from the
Tenant of an amount equal to the Present Value, as of the date of an
event of default by the Tenant, of Rent due under this Lease from such
date to the last day of the Term of the Lease. If any part of such Rent
cannot be absolutely determined, as of such date, the Landlord shall
estimate same on a reasonable basis. Upon payment of such amount by the
Tenant to the Landlord, the Tenant shall be entitled to occupancy of the
Premises for the remainder of the Term in accordance with this Lease;
and/or
(g) suspend the supply to the Premises of any benefit, service, utility
or Additional Service furnished by the Landlord until the default is
cured.
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15.3 Additional Self-help Remedy of Landlord:
In addition to all other remedies the Landlord may have by this Lease, at law or
in equity, if the Tenant does not perform any of its obligations hereunder, the
Landlord, may at its option, perform any of such obligations, after five days=
notice to the Tenant or in the event of an emergency without notice, and in such
event the cost of performing any of such obligations plus an administrative
charge of 15% of such cost shall be payable by the Tenant to the Landlord
forthwith on demand together with interest at the Rate of Interest from the date
of the performance of any of such obligations by the Landlord to the date of
payment by the Tenant.
15.4 Legal Costs:
The Tenant hereby agrees to pay to the Landlord, within 5 days after demand, all
legal fees, on a solicitor and his own client basis, incurred by the Landlord
for the enforcement of any rights of the Landlord under this Lease or in the
enforcement of any of the provisions of this Lease or in the obtaining of
possession of the Premises or for the collection of any monies from the Tenant
or for any advice with respect to any other matter related to this Lease.
15.5 Remedies Cumulative:
The Landlord may from time to time resort to any or all of the rights and
remedies available to it in the event of any default hereunder by the Tenant,
either by any provision of this Lease, or by statute, or at law or in equity,
all of which rights and remedies are intended to be cumulative and not
alternative, and the express provisions hereunder as to certain rights and
remedies are not to be interpreted as excluding any other or additional rights
and remedies available to the Landlord at law or in equity.
15.6 Non-Waiver:
Any condoning, excusing or overlooking by either the Landlord or the Tenant of
any default by the other at any time or times in respect of any obligation of
the other herein shall not operate as a waiver of the non-defaulting party=s
rights hereunder in respect of such default or so as to defeat or affect in any
way the rights of the non-defaulting party in respect of any such continuing or
subsequent default by the defaulting party. No waiver shall be implied by
anything done or omitted by a party. Any waiver of a particular default shall
not operate as a waiver of any subsequent or continuing default.
ARTICLE 16 GENERAL PROVISIONS
16.1 Entire Agreement:
This Lease contains all of the terms and conditions of the agreement between the
Landlord and the Tenant relating to the matters herein provided and supersedes
all previous agreements or representations of any kind, written or spoken, made
by anyone in reference thereto.
There shall be no amendment hereto unless in writing and signed by the party to
be bound.
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16.2 Schedules:
The Schedules to this Lease form a part of this Lease.
16.3 Planning Act:
This Lease is subject to compliance, if necessary, with the Planning Act of
Ontario.
16.4 Survival of Obligations:
Any obligation of a party which is unfulfilled on the termination of this Lease
shall survive until fulfilled.
16.5 Severability of Illegal Provisions:
If any provision of this Lease which has no direct financial impact is or
becomes illegal or unenforceable, it shall during such period that it is illegal
or unenforceable be considered separate and severable from the remaining
provisions of this Lease which shall remain in force and be binding as though
the said provision had never been included.
16.6 Governing Law:
This Lease shall be governed by the laws applicable in the Province of Ontario.
16.7 No Partnership:
Nothing contained herein shall be deemed to create any relationship between the
parties hereto other than the relationship of landlord and tenant.
16.8 Number, Gender, Joint and Several Liability:
The word "Tenant", the word "assignee" and the word "sublessee" and personal
pronouns relating thereto and used in conjunction therewith shall be read and
construed as "Tenant" or "Tenants", "assignee" or "assignees" and "sublessee" or
"sublessees" respectively and "his", "her", "it", "its" and "their" as the
number and gender of the party or parties referred to in each case require and
the number of the verb agreeing therewith shall be considered as agreeing with
the said word or pronoun so substtuted. If at any time there is more than one
Tenant together or in succession, they shall be jointly and severally liable for
all of the obligations of the Tenant hereunder.
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16.9 Captions:
The captions for Articles and sections of this Lease are for convenience only
and are not to be considered a part of this Lease and do not in any way limit or
amplify the terms and provisions of this Lease.
16.10 Time of Essence:
Time shall be of the essence of this Lease.
16.11 Landlord's Agent:
The Landlord may perform any of its obligations or exercise any of its rights
hereunder through such agent as it may from time to time determine by notice to
the Tenant and the Tenant shall, as from time to time directed by the Landlord,
pay to any such agent any moneys payable hereunder to the Landlord.
16.12 Successors and Assigns:
Except as otherwise specifically provided, the covenants, terms and conditions
contained in this Lease shall apply to and bind and enure to the benefit of the
parties hereto and their respective successors and assigns.
16.13 Accounting Principles:
All calculations referred to herein shall be made in accordance with generally
accepted accounting principles and practices applicable to the real estate
development industry and applied on a consistent basis.
16.14 Other Leases in Building:
If the Tenant leases any other space in the Building pursuant to any other lease
or leases, the following provisions shall apply:
(a) any default under this Lease shall constitute a default under each
of such other lease or leases and any default under each of such other
lease or leases shall constitute a default under this Lease enabling the
Landlord to exercise any of its remedies hereunder or thereunder; and
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(b) any right of renewal under one lease may only be exercised in
conjunction with any similar right of renewal in any other lease.
16.15 Notices and Consents, etc.:
Except as otherwise specifically provided herein, any notice or consent
(including any invoice, statement or request or other communication) herein
required or permitted to be given by either party to the other shall be in
writing and shall be delivered or sent by registered mail (except during a
postal disruption or threatened postal disruption) or telegram or other
electronic communication or other means of prepaid recorded communication to the
applicable address set forth below:
(a) in the case of the Landlord, to:
c/o Canderel Management Services Ltd.
Constitution Square
Suite 200
350 Albert Street
Ottawa, Ontario
K1R 1A4
Attn: Vice-President fax: (613) 594-0112 with a copy to:
Canderel Management Services Ltd.
2000 Rue Peel
Suite 900
Montreal, Quebec
H3A 2W5
Attn: President
fax: (514) 284-1054
(b) in the case of the Tenant, to the Premises.
fax: (613) ____________________
Any notice delivered shall be deemed to have been validly and effectively given
on the day of such delivery provided same is a Business Day. Any notice sent by
registered mail shall be deemed to have been validly and effectively given on
the third Business Day following the date of mailing. Any notice sent by
telegram or other electronic communication or other means of prepaid recorded
communication shall be deemed to have been validly and effectively given on the
Business Day next following the day on which it was sent and confirmation of
transmittal is received.
Either party may from time to time by notice to the other change its address for
service hereunder provided that such address shall be in the City of Ottawa or
Montreal.
16.16 No Consent During Default:
It shall not be unreasonable for the Landlord to withhold its consent at any
time when the Tenant is in default hereunder.
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16.17 Further Assurances:
Each party agrees to make such further assurances as may be reasonably required
from time to time by the other to more fully implement the true intent of this
Lease.
16.18 Tenant's Notice to Vacate:
The Tenant shall give the Landlord not less than 12 months notice prior to the
last day of the Term of this Lease or any renewal thereof of the Tenant's
intention to vacate the Premises on or before such date, provided that if the
Tenant does not give such notice, the Landlord shall have the right, at the
Landlord's sole option, by giving notice to the Tenant not less than 60 days
prior to such date, to extend this Lease for a further term of one year from
such date on the same terms of this Lease as they exist on such date other than
Basic Rent which shall be the Basic Rent payable during the year prior to such
date plus 20% and except for any rights of the Tenant contained in Article 18,
if any. If the Tenant gives the aforesaid notice or, if not, if the Landlord
does not give the aforesaid notice, this Lease shall terminate on such date
without notice or demand.
16.19 Landlord's Right to Relocate:
The Landlord shall have the right, at any time during the Term, to relocate the
Premises to other premises (the "New Premises") in the Project on the same terms
and conditions as are set out in this Lease provided that:
(a) the Landlord shall first have given not less than 90 days notice to
the Tenant;
(b) the Landlord shall endeavour that the New Premises be of comparable
size and quality to the Premises;
(c) the Landlord shall pay the reasonable costs incurred by the Tenant
for:
(i) its physical move;
(ii) the reconnection of existing communication lines; and
(iii) the reordering of new printed material plates and the
printing of an equal quantity and quality of printed material
the Tenant has in stock as the time of the relocation;
(d) if the Gross Rentable Area of the New Premises is not the same as
the Gross Rentable Area of the Premises, the Basic Rent payable under
this Lease shall be adjusted accordingly; and
(e) upon such relocation, the Landlord and the Tenant shall execute a
supplement to this Lease amending the definition of "Premises" and
making any other necessary changes as aforesaid.
The exercise of the Landlord's right to relocate as aforesaid shall not entitle
the Tenant to any claims against the Landlord.
-32-
16.20 Other Construction and Shared Common Facilities:
The Tenant acknowledges that the Building comprises one of a multi-phase
development in the Project which includes other buildings and/or structures
whether now constructed or to be hereafter constructed. The Tenant acknowledges
and agrees that:
(a) the Landlord has the right at any time and from time to time to
construct one or more other buildings or structures within the Project
and to make such modifications, alterations, additions or subtractions
to the Building to accommodate the new construction including, without
limitation, the blocking of light, the blocking up of windows, the
elimination of views, the creation of easements or rights of way or
other rights as may be necessary or desirable in connection with such
new construction together with the usual noise and dust during the
construction period;
(b) no such construction or modifications, alterations, additions or
subtractions shall be alleged or deemed as an eviction or disturbance of
the Tenant's enjoyment of the Premises nor render the Landlord liable in
damages to the Tenant nor entitle the Tenant to claim any diminution in
Rent;
(c) the Landlord shall have the right at any time and from time to time
to modify, alter, add or subtract from the Common Facilities as the
Landlord considers necessary or desirable including, without limitation,
the sharing by certain of the tenants within the Project (as determined
by the Landlord) of certain common areas and facilities within the
Project such as, without limitation, parking areas, parking decks,
underground parking garages, loading and shipping/receiving facilities,
a plaza, an atrium, daycare facilities, a conference centre(s),
conference rooms, security systems, central cafeteria, fitness, exercise
or health facilities, passageways and other connections in which event
the Landlord, acting reasonably, may adjust the Gross Rentable Area of
the Premises;
(d) the Landlord shall have the right, at any time and from time to
time, to do what the Landlord, acting reasonably, determines to be
necessary or desirable for the more efficient and proper operation and
use of the Project;
(e) where expenses are incurred or taxes are imposed which relate to the
Development and also another part or parts of the Project or to shared
facilities which are made available to some or all of the occupants of
the Development and some or all of the occupants of one or more other
part or parts of the Project, the Landlord, acting reasonably, shall
have the right to allocate such expenses or taxes among the various
parts of the Project and such expenses or taxes so allocated to the
Development shall form part of Operating Expenses;
(f) nothing herein contained shall be deemed to constitute any
obligation on the part of the Landlord to proceed with any construction
of or to provide any such common areas or facilities; and
(g) the Tenant acknowledges that, since the Tenant is entitled to share
the use of the conference centre(s) in the Project, the Gross Rentable
Area of the Premises includes the Tenants share, as determined by the
Landlord acting reasonably, of the area of such conference centre(s).
ARTICLE 17 ADDITIONAL PROVISIONS
17.1 Leasehold Allowance
The Landlord shall pay to the Tenant, as an inducement to the Tenant to enter
into this Lease, an amount equal to $30.00 per square foot of Gross Rentable
Area of the Initial Premises provided that all of the following have occurred:
-33-
(a) the Tenant's right under this section is personal to the original
Tenant and does not extend to any assignee or subtenant so that the
right under this section terminates upon any assignment of this Lease or
upon any subletting the whole of the Premises;
(b) the Tenant is not in default under this Lease;
(c) the Tenant has provided evidence satisfactory to the Landlord that
the Tenant has completed all of the Tenant's Work in the Premises and
all material and labour with respect to the Tenant's Work has been paid
for in full and that all rights to liens which could arise in respect of
the Tenant's Work have expired without any such liens having been
registered against the title to the Development;
(d) the Tenant has executed the Lease and delivered it to the Landlord;
(e) the Commencement Date has occurred and the Tenant has occupied the
Premises and opened for business; and
(f) if the Landlord is performing any work for the Tenant in the
Premises, all of such work has been paid for by the Tenant or the amount
owing to the Landlord in respect of same has been offset against such
inducement.
The Tenant agrees that, if the Landlord terminates the Term as a result of
default by the Tenant, the Landlord shall be entitled to a rebate of an amount
equal to the product obtained by multiplying such inducement by a fraction the
denominator of which is the total number of months in the Term and the numerator
of which is the number of months in the Term following such default.
17.2 License for Parking:
(a) The Landlord grants to the Tenant the license to park two (2)
automobiles (and, after December 31, 1997 two (2) additional
automobiles) on an unreserved basis in the Parking Garage during the
Term and, after December 31, 1997, one additional automobile on a
reserved basis at the monthly rate per automobile as established from
time to time by the Landlord or the operator of the Parking Garage. The
initial monthly rate per automobile (unreserved) is $125.00 plus taxes.
(b) The Tenant agrees to comply with the parking rules governing the use
of the Parking Garage as may be established from time to time by the
Landlord or the operator of the Parking Garage (the "Parking Rules") and
of which notice has been given to the Tenant or of which notice has been
posted in the Parking Garage.
(c) The Tenant agrees to indemnify the Landlord and the operator of the
Parking Garage against all liability, claims, damages or expenses due to
or arising out of any act, omission or neglect by the Tenant or those
for whom it is at law responsible in or about the Parking Garage or due
to or arising out of any breach by the Tenant of the provisions of the
Parking Rules.
(d) Neither the Landlord nor the operator of the Parking Garage shall be
liable for any loss, injury or damage caused to persons using the
Parking Garage or to automobiles or their contents or any other property
thereon, however caused, and the Tenant agrees that such vehicles,
contents and property shall be in the Parking Garage at the sole risk of
the Tenant and agrees to indemnify the Landlord and the operator of the
Parking Garage against all claims, damages or expenses due to or arising
out of the foregoing.
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17.3 Tenant's First Right to Lease Extra Space:
The Tenant shall have the first right to lease the vacant space adjacent to the
Premises (the "Extra Space") in the area shown cross-hatched on Schedule E
attached hereto upon the following terms and conditions:
(a) the Tenant's right under this section is personal to the original
Tenant and does not extend to any assignee or subtenant so that the
right under this section terminates upon any assignment of this Lease or
upon any subletting of all or any part of the Premises;
(b) the Tenant's right in this section is subject to prior rights
granted from time to time by the Landlord with respect to the Extra
Space;
(c) the Tenant shall not have any right to lease the Extra Space if, at
the time the Landlord would be obligated to give the Landlord's Notice
to the Tenant as hereafter provided, the Tenant is in default hereunder
or has been in default hereunder on a consistent basis;
(d) if at any time during the Term (but not in any renewal), the Extra
Space becomes or is about to become vacant and the provisions of
subsections (a) and (b) are not in effect, the Landlord shall give
notice to the Tenant (the "Landlord's Notice") setting forth the rental
rate which the Landlord is prepared to accept for the extra Space (which
rate shall be the then current rate for such space in the Building under
similar lease terms), the occupancy date for the Extra Space, the length
of the term of lease proposed for the Extra Space and other terms and
conditions required by the Landlord. If the Tenant wishes to acquire the
Extra Space, it shall give notice to the Landlord within 5 days
following receipt of the Landlord's Notice. If the Tenant does not so
give such notice, the Landlord shall be free to Lease the Extra Space at
any time during the Term to any other party. Unless the Landlord
otherwise agrees, the Tenant shall be obligated to acquire all and not
less than all of the Extra Space. This right to acquire the Extra Space,
if the Extra Space is presently vacant, shall not apply until the Extra
Space has been leased out and again becomes vacant in the future; and
(e) if the Tenant exercises its right to lease the Extra Space, the
Landlord shall deliver the Extra Space to the Tenant on the date, at the
rental rate and for the term and subject to any other terms and
conditions specified in the Landlord's Notice and the Extra Space shall
be added to this Lease and shall be subject to all the other terms
hereof.
-35-
IN WITNESS WHEREOF the parties hereto have duly executed this Lease as of the
date first above written.
LANDLORD
OMERS REALTY CORPORATION
Per: /s/ Paul D. Colangelo
---------------------------
Name: Paul D. Colangelo
Title: Executive Vice President
Per: /s/ John R. Morrison
---------------------------
Name: John R. Morrison
Title: Senior Vice President
Properties
We have authority to bind the Corporation.
TENANT
DRAKE, BEAM, MORIN (OTTAWA), INC.
Per:
Name: John Gerry Stanton
Title: President
Per:
Name:
Title:
We have authority to bind the corporation.
-36-
SCHDULES
SCHEDULE A Legal Description of Lands and Project
Lands
Part 1 - Development
360 Albert Street, Ottawa, being Phase I of Constitution Square
Part of Lots 18, 19, 20 and 21 on the south side of Albert Street and part of
Lots 18, 19, 20 and 21 on the north side of Slater Street, all on Plan 3922,
City of Ottawa, designated as Parts 1 and 3 on Plan 4R-4412 subject to an
easement in favour of The Regional Municipality of Ottawa, Carleton as in 552200
over Part 3 on Plan 4R-4412.
Part II - Project
The block bounded by Albert Street, Kent Street, Slater Street and Lyon Street
in the City of Ottawa which is legally described as:
Parcel 18-7, in the Register for Section 3922, Land Titles Division of
Ottawa-Carleton No. 4.
-37-
SCHEDULE B Definition of Operating Costs
1. Inclusions
"Operating Costs" mean the aggregate of (a) all of the Landlord's expenses,
costs and charges which are incurred in respect of the operation, maintenance,
repair, replacement, management, administration and supervision of the
Development including the Building Common Facilities and (b) the Building
Proportionate Share of all such costs with respect to each of the Shared Common
Facilities which is shared by the Development. Such expenses, costs and charges
include, without limitation or duplication:
(a) the cost of providing the operation, maintenance, repair, replacement,
management, administration and supervision including, without limitation,
wages, salaries, placement fees and severance costs or other compensation for
employees, agents or contractors of the Landlord performing services rendered
in connection therewith and a building manager and other supervisory
personnel, in each case whether on or off site, elevator operators, porters,
cleaners and other janitorial staff, watchmen and other security personnel,
carpenters, engineers and all other maintenance personnel;
(b) the cost of repairs and maintenance and the cost of acquiring or renting
supplies and equipment;
(c) the annual amortization including interest on the unamortized amount, (on
a straight-line basis over the useful life or such other period as reasonably
determined by the Landlord) of the capital cost of any modifications,
replacements or additions and/or the machinery and equipment where in the
reasonable opinion of the Landlord such modifications, replacements or
additions may reduce Operating Costs or result in energy savings or result in
increased security, or any additional equipment or improvements required by
legal requirements and not to remedy any construction inadequacy or
non-compliance with legal requirements in effect at the time of
constructions, or which in the Landlord's reasonable opinion are for the
benefit or safety of users of the Development;
(d) straight-line amortization including interest on the unamortized amount,
based on manufacturers' recommended life of capitalized machinery and
equipment;
(e) premiums and other charges incurred by the Landlord with respect to
insurance including, without limitation, fire and "All Risk" perils
insurance, public liability and property damage insurance, boiler and
machinery insurance, and loss of rental income insurance, elevator liability
insurance, workmen's compensation insurance for the employees specified in
subsection (a) above and other casualties against which the Landlord may
reasonably insure provided that if the Landlord self insures the Landlord
shall include a deemed amount equal to the amount that would have been
included if the Landlord had placed insurance with a third party;
(f) costs incurred in connection with inspection and servicing of elevators,
electrical distribution and mechanical equipment and the costs of supplies
and equipment used in connection therewith;
(g) costs incurred for fuel or other energy for heating and air-conditioning
and operating the heating and air-conditioning systems, for electricity,
steam or other power required in connection with lighting, use and operation
together with the costs of replacement, maintenance and repair of the
electrical systems and lighting but excluding costs for power for lighting
and office equipment that are charged directly by the Landlord to the Tenant
as excess consumption costs pursuant to subsection 6.4(b) of this Lease;
(h) the costs of water, sewer and service charges, garbage and waste removal
and gardening, landscaping and snow removal;
(i) unemployment insurance expenses, pension plan and any other payments
payable in connection with the employment of any of the employees referred to
in subsection (a) above;
-B2-
(j) sales and excise taxes on goods and services provided by the Landlord;
(k) fees and expenses of accountants, lawyers and other professionals;
(1) all costs and expenses (including legal and other professional fees)
incurred in good faith in verifying the reasonableness of, or in contesting,
resisting or appealing, assessments and levies for Taxes or taxes charged
against the business of the Landlord;
(m) costs of telephone, stationery, office supplies and other materials;
(n) that part of Other Taxes attributable by the Landlord to the Development;
(o) Sales Taxes payable by the Landlord on the purchase of goods and services
included in Operating Costs (excluding any such Sales Taxes as are available
to an claimed by the Landlord as a credit in determining the Landlord's net
tax liability on account of Sales Taxes but only to the extent that such
Sales Taxes are included in Operating Costs);
(p) that part of Taxes which is attributable to space which would otherwise
be rentable if it were not utilized and reasonably needed~ by the Landlord in
connection with the management, operation and maintenance;
(q) Taxes to the extent attributable to the Common Facilities that are
separately assessed and not included as part of the assessed value of
premises occupied or to be occupied by tenants (including the Tenant) (but
only if and to the extent that such Taxes have not been taken into account by
the Landlord in making any attribution or calculation for the purpose of
determining the Tenant's contribution to Taxes);
(r) such other direct operating costs, charges and expenditures of a like
nature as may be incurred in respect of the proper preservation, protection,
maintenance and operation;
(s) Capital Tax; and
(t) a management fee equal to the management fee charged to the Landlord by
the third party manager from time to time of the Building or, if none, a
management fee equal to the management fee charged by landlords of buildings
similar to the Building,
provided that, with respect to costs of repair, replacement, modifications,
additions and/or equipment which are included in Operating Costs, the Landlord
shall have the right, notwithstanding the forgoing, either to include the whole
of such costs in Operating Costs in the year such costs were incurred or to
amortize such costs over such period as the Landlord, acting reasonably,
determines is reasonable in the circumstances.
- B3 -
2. Adjustment to Costs
Those items of Operating Costs which vary with the use and occupancy of rentable
premises shall be adjusted and calculated as if 100% occupied and operational
for the entire operating year so that those items of Operating Costs (which
shall include, without limitation, items such as cleaning costs, garbage removal
and utility costs) shall be adjusted to what they would have been in the
Landlord's reasonable estimation if 100% occupied and operational for the entire
operating year, and such adjusted amount shall be included in the Operating
Costs.
3. Exclusions
Operating Costs shall exclude, except where expressly included above:
(a) all costs normally attributed to capital account under generally accepted
accounting principles;
(b) costs which are unreasonably or imprudently incurred (to the extent of
the excess of such costs over the amount thereof if reasonably and prudently
incurred);
(c) costs incurred in leasing premises to other tenants; and
(d) debt service including interest.
4. Reductions
Costs which are reimbursed to the Landlord from tenants or others corresponding
to expenses incurred by the Landlord, (such as Additional Service Costs,
insurance recoveries and recoveries pursuant to damage or indemnity claims),
otherwise than by a general contribution by tenants of shares of Operating
Costs, shall, to the extent the expenses pertaining thereto are included in
Operating Costs, be applied in reduction of Operating Costs.
- B4 -
SCHEDULE C RULES AND REGULATIONS
1. The sidewalk, entry passages, elevators, fire escapes, common stairways and
Common Facilities shall not be obstructed by any of the tenants or used by them
for any other purpose other than for ingress and egress to and from their
respective premises. Tenants will not place or allow to be placed in the
Building corridors or public stairways any waste paper, dust, garbage, refuse or
anything whatever that would tend to make them unclean or untidy.
2. The skylights and windows that reflect or admit light into passageways and
Common Facilities of the Development shall not be covered or obstructed by any
of the tenants, and no awnings shall be put up, without the written consent of
the Landlord.
3. The water-closets and other water apparatus shall not be used for any purpose
other than those for which they were constructed, and no sweepings, rubbish,
rags, ashes or other substances shall be thrown therein. Any damage resulting by
misuse shall be borne by the tenant by whom or by whose agents, servants or
employees the same is caused (save in respect of Insured Damage). Tenants shall
not let the water run unless in actual use, nor shall they deface any part of
the Common Facilities or the Development.
4. Tenants shall not do or permit anything to be done in their premises or bring
or keep anything therein which will in any way increase the risk of fire, or
obstruct or interfere with the rights of other tenants, or violate or ct at
variance with the laws relating to fires or with the regulations of the Fire
Department or the Board of Health.
5. No tenant, its clerks or servants, shall make or commit any improper noises
in the Building, lounge about doors or corridors or interfere in any way with
other tenants or those having business with them.
6. Nothing shall be thrown by any tenant, its clerks or servants, out of windows
or doors, or down the passages, elevator shafts or skylights of the Building.
7. No birds or animals shall be kept in or about the premises of any tenant nor
shall any tenant operate, or permit to be operated, any musical or sound
producing instruments or device inside or outside the premises of any tenant
which may be heard outside such premises.
8. No one shall use the premises of any tenant for sleeping apartments or
residential purposes, or for the storage of personal effects or articles other
than those required for business purposes, nor shall the tenant permit any
cooking on the premises.
9. The Landlord shall have the right:
(a) to require all persons entering or leaving the Building during such
hours as the Landlord may reasonably determined, to identify themselves to a
watchperson or security officer by registration or otherwise to establish
their right to enter or leave; and
(b) to exclude or expel any peddlar or beggar at any time from any premises
or the Building.
10. Any injury or damage caused to the Common Facilities or other areas of the
Building or heating and other appliances, or to any other tenant or to the
premises occupied by any other tenant, by interference with or neglect of the
heating appliances, or any other person or servant subject to it, shall be made
good by the tenant in whose premises the neglect, interference or misconduct
arose (save in respect of Insured Damage).
11. It shall be the duty of each tenant to assist and co-operate with the
Landlord in preventing injury to such Tenant's premises, and premises demised to
other tenants.
12. No inflammable oils or other inflammable, dangerous or explosive materials
shall be kept or permitted to be kept in any premises. Nothing shall be placed
on the outside of window sills or projections.
13. Furniture, effects and supplies shall not be taken into or removed from any
premises, except at such time and ii= such manner as may be previously approved
by the Landlord.
14. No bicycles or other vehicles shall be brought within the Building except in
the Parking Garage, and then only in accordance with the Landlord's or Parking
Garage operator's direction.
15. Business machines, filing cabinets, heavy merchandise or other articles
liable to overload, injure or destroy any part of the Building shall not be
taken into it without the written consent of the Landlord and the Landlord shall
in all cases retain the right to prescribe the weight and proper position of all
such articles and the ways, means and times and routes for moving them into or
out of the Building; the cost of repairing any damage done to the Building by
such moving or by keeping any such articles on any premises shall be paid by the
tenant causing such damage (save in respect of Insured Damage).
16. Tenants shall not place any additional lock upon any door of the Building
without the written consent of the Landlord (except in the case of vaults or
other security areas which the Tenant may reasonably designate).
17. Tenants shall give the Landlord prompt notice of any accident to or any
defect in the plumbing, heating, air-conditioning, mechanical or electrical
apparatus or any other part of the Building.
18. Only persons authorized by the Landlord, acting reasonably, shall be
permitted to deliver or to use the elevators in the Building for the purpose of
delivering food or beverages to any premises.
19. The lining of all window drapes facing the interior surface of exterior
windows shall be subject to the prior approval of the Landlord as to colour and
material and a tenant shall not hang and will remove any draperies which in the
Landlord's opinion do not conform to any uniform scheme of window coverings
established for the Building.
20. In order to maintain the high character and uniqueness of the Development,
the Landlord shall have the absolute right to designate the kind, type and
colour of any interior drapes or wall coverings or hangings which the tenants
desire to place on any wall or window and to designate the locations, kind and
colour of any partitions which are visible from outside the premises.
21. Each Tenant shall take all steps as reasonably required by the Landlord from
time to time to ensure that no employees of the Tenant or others on the Premises
from time to time use any Common Facilities for the purpose of smoking.
22. The Landlord shall have the exclusive right to supply and sell or caused to
be supplied and sold all coffee, soft drinks, cigarettes, sandwiches,
confections and other food and to install or caused to be installed all vending
machines within the Project, provided that the Tenant shall have the right to
prohibit all such sales and installations in its Premises by giving written
notice to the Landlord to this effect.
23. The Landlord shall have the right to make such other and further reasonable
rules and regulations, not inconsistent with the provisions of this Lease, as in
its reasonable judgment may from time to time be necessary for the safety, care,
cleanliness and appearance of any premises and the Development in keeping with
the existing standards in and of the Development, and for the preservation of
good order therein, and the same shall be kept and observed by all tenants,
their clerks and servants.
SCHEDULE D
Intentionally left blank.