THIS LEASE is dated as of the 16 th
day of July, 2007.
BETWEEN:
LANDING HOLDINGS LIMITED, (Inc. No.
518175), a body corporate, with an office at Suite 400 - 375 Water
Street, Vancouver, BC, V6B 5C6 as to an undivided one-half interest
and LANDING PROPERTIES LIMITED, (Inc. No. 537324), a body
corporate, with an office at Suite 400 – 375 Water Street,
Vancouver, BC, V6B 5C6 as to an undivided one-half interest
(collectively the “Landlord”)
AND:
DOMAIN HOLDINGS INC. of Suite 635/645,
375 Water Street, Vancouver, BC, V6B 5C6
(the “Tenant”)
ARTICLE 1
DEFINITIONS
1.1
Definitions
In this Lease, unless there is something in the
context inconsistent therewith, the Landlord and Tenant agree
that:
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(a) |
“Additional Rent” means all
sums of money to be paid by the Tenant whether to the Landlord or
otherwise pursuant to this Lease save and except Basic Rent;
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(b) |
“Architect” means the
architect qualified to practise and practising in the Province of
British Columbia from time to time named by the Landlord. The
decision of the Architect whenever required hereunder and any
certificate related thereto will be final and binding on the
Landlord and Tenant;
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(c) |
“Basic Rent” means the rent
referred to in Article 3.1;
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(d) |
“Building” means collectively
the building, improvements, structures and facilities including
parking facilities erected or to be erected on or under the Lands
and all expansions, alterations, additions and relocations thereto
within, upon or under the Lands;
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(e) |
“Commencement Date” means the
1 st day of October, 2007.
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(f) |
“Common Areas and Facilities”
means those areas, facilities, utilities, improvements, equipment
and installations in the Building which:
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(i) |
from time to time, are not designated or
intended by the Landlord to be leased to tenants of the Building,
and
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(ii) |
serve or are for the benefit of the Building,
and which are designated or intended by the Landlord from time to
time to be part of the Common Areas and Facilities of the
Building.
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Common Areas and Facilities includes, without
limitation, all areas, facilities, utilities, improvements,
equipment and installations which are provided or designated (and
which may be changed from time to time) by the Landlord for the use
or benefit of tenants of the Building, their employees, customers
and other invitees in common with others entitled to the use or
benefit thereof in the manner and for the purposes permitted by
this Lease. Without limiting the generality of the foregoing,
Common Areas and Facilities includes the roof, exterior wall
assemblies including weather walls, exterior and interior
structural elements and bearing walls in the Building including,
without limitation: truck courts; driveways; truckways; delivery
passages; loading docks and related areas; pedestrian sidewalks;
landscaped and planted areas; public seating and service areas;
corridors; equipment, furniture, furnishings and fixtures provided
by the Landlord for the use and benefit of tenants of the Building
and their employees, customers and other invitees; conference
rooms, and amenity areas; stairways, ramps and elevators and other
transportation, equipment and systems included in the Building;
tenant common washrooms and public washrooms; electrical,
telephone, meter, valve, mechanical, mail, storage, service and
janitor rooms; music, fire prevention, security and communication
systems; general signs; columns; pipes, electrical, plumbing,
drainage, security and life support systems; building automation
systems as well as the structures housing the same (including,
without limitation, the heating, ventilating and air-conditioning
systems of the Building) mechanical and all other installations or
services located therein or related thereto;
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(g) |
“Common Costs” means the
total, without duplication, of the costs incurred by the Landlord
during the Term, in accordance with generally accepted accounting
principles consistently applied in Canada, for the continued
management and operation of the Building, and the maintenance,
repair, replacement and preservation of the Building including
Common Areas and Facilities, including, without limitation, the
costs of the following:
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(i) |
repairs, replacements and maintenance except
where the cost of any such repairs, replacement or maintenance are
directly attributable to inherent structural defects or weaknesses
and except items for which the Landlord has elected to take
depreciation to the extent only of the depreciation taken and with
the further exception of repairs for damage caused by the Tenant,
its servants, agents, patrons, invitees or suppliers which shall be
the responsibility of the Tenant alone to bear the Landlord’s
cost of repairing;
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(ii) |
landscaping and gardening, line repainting,
signs and furniture, fixtures and equipment of whatever nature used
in connection with the operation and maintenance of the Building
and Lands whether purchased or leased, the uniforms of the
personnel referred to in Article 1.1(g)(iii) and the cleaning and
pressing thereof, supplies, lighting, security protection, sanitary
control, traffic control, refuse removal, removal of snow and ice,
painting and window cleaning and otherwise maintaining the Common
Areas and Facilities, and operating and maintaining any loading and
receiving areas and truck docks;
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(iii) |
wages and compensation paid for the following
classes of employees or agents of the Landlord (but not including
leasing commissions paid to brokers) including, without limitation,
payments for workers’ compensation, unemployment insurance,
vacation pay, Canada Pension Plan and fringe benefits whether
statutory or otherwise but to the extent only that such wages and
compensation are directly attributable to the maintenance,
operation, repair, replacement and management of the Building:
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(A) |
the salaries of the superintending staff for the
Building, building department heads and assistants and the clerical
and accounting staff attached to the Building Manager’s
office, provided that such wages and compensation will be for
services rendered only in connection with the Building and will not
exceed those which would be paid by a reasonably prudent operator
of a similar firstclass Building;
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(B) |
window cleaners, porters, janitors, cleaners and
miscellaneous handymen;
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(C) |
watchmen, commissionaires, caretakers and
security personnel; and
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(D) |
carpenters, engineers, firemen, mechanics,
electricians, plumbers and persons engaged in the repair,
maintenance, operation and replacement of the heating,
air-conditioning, ventilating, plumbing, electrical and elevator
and escalator systems of the Building;
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(iv) |
service contracts with independent contractors
in respect of the maintenance, operation, repair, replacement and
management of the Building;
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(v) |
operating, maintaining, repairing and replacing
security and life support systems, plumbing, electrical, heating,
water, sewer, air-conditioning, sprinkler and other utility systems
and services in respect of the Building including the building
automation system;
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(vi) |
insurance coverage obtained by the Landlord from
time to time pursuant to Article 11.5 of this Lease;
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(vii) |
real property taxes, rates, charges, duties and
assessments that may be levied, imposed, rated, charged or assessed
against or in respect of the Lands and Building and improvements
thereon and therein including without limitation, all local
improvement rates and charges, frontage taxes, water, school,
hospital and other taxes and assessments both general and special,
ordinary and extraordinary, and foreseen or unforeseen, now levied,
imposed, rated, charged or assessed or which may hereafter be
levied, imposed, rated, charged or assessed by any federal,
provincial, municipal, regional, school or other statutory
authority during the Term for municipal, school or other purposes
and reasonable legal fees and appraising fees incurred by the
Landlord in contesting or appealing the amount or legality of any
such taxes but excluding corporation capital taxes and any income
taxes personal to the Landlord;
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(viii) |
supplying steam, electricity, water, sewer
services, natural gas and other fuel and utility services to the
Building;
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(ix) |
accounting costs incurred in connection with
maintenance and operation including computations required for the
imposition of charges to tenants of the Building and audit charges
required to be incurred for the conclusive determination of any
costs incurred hereunder, and reasonable reserves in connection
with any operating expense;
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(x) |
sales and excise taxes on goods and services
provided by the Landlord to manage, operate and maintain the Common
Areas and Facilities and equipment thereon;
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(xi) |
cleaning the Building and supplies and equipment
used in connection therewith including, without limitation, the
costs of janitor services ordinarily provided to tenants of the
Building pursuant to Article 4.20;
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(xii) |
stationery supplies, postage and other material
required for routine operation of the Building Manager’s
office;
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(xiii) |
costs otherwise attributable to capital account
on improvements, machinery and equipment which substantially reduce
Common Costs as herein defined;
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(xiv) |
a management fee equal to five percent (5%) of
the aggregate of all Basic Rent and Additional Rent payable by the
tenants of the Building (excluding this management fee);
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provided that Common
Costs will not include any costs incurred by or on behalf of or at
the request of an individual tenant or tenants and resulting in a
benefit to such individual tenant or tenants which is not of
general application to all tenants
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of the Building, costs
incurred by the Landlord solely to lease premises in the Building
including cost of leasing commissions, lease incentives, costs of
installation of demising walls and refurbishing vacant premises,
wages and compensation reasonably allocated by the Landlord to
persons retained by the Landlord for the purposes of leasing the
Building and debt servicing costs on any mortgage of the Building
granted by the Landlord.
If any of the Common
Costs or costs of a like nature at any time or from time to time
apply disproportionately to the office or to the retail tenants of
the Building then the Landlord, in its sole discretion acting
reasonably, may allocate all or a portion of those costs to the
type of tenant to whom the costs disproportionately apply;
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(h) |
“Gross Rent” means the
aggregate of Basic Rent, any amounts payable by the Tenant under
Article 3.7 and the Tenant’s Proportionate Share of Common
Costs referred to in Article 3.2;
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(i) |
“Lands” means those certain
lands and premises legally described as:
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(i)
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Parcel Identifier 005-888-425
Lot 4
Block 8
District Lot 541
Plan 852
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(ii)
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Parcel Identifier 005-888-361
Lot 5
Block 8
District Lot 541
Plan 1055
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(iii)
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Parcel Identifier 005-888-522
Lot “A” (Reference Plan 9) of Lot 6
Block 8
District Lot 541
Plan 1055;
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(j) |
“Land Surveyor” means the
accredited land surveyor from time to time appointed by the
Landlord whose decision whenever required hereunder and any
certificate related thereto will be final and binding on the
Landlord and Tenant;
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(k) |
“Lease” means this
instrument, all Schedules attached hereto, the Architect’s
and Land Surveyor’s certificates, if any, and the Rules and
Regulations;
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(l) |
“Other Taxes” means any and
all taxes, levies, duties and assessments imposed on the Tenant,
the Landlord or both, or for which the Landlord is obliged to
collect from the Tenant, with respect to:
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(i) |
any or all amounts paid or payable by the
Landlord for goods and services, repairs, maintenance, real estate
taxes, taxes of the nature described in Article 3.6, insurance and
all other outlays and expenditures (including capital expenditures)
for and in connection with the operation and management of the
Building, including without limiting the generality of the
foregoing, repairs, maintenance and replacements in respect of the
Building;
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(ii) |
any or all amounts paid or payable by the Tenant
pursuant to the Lease, as Basic Rent and Additional Rent; and
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(iii) |
this Lease or services or goods supplied or
provided or deemed to have been supplied or provided by the
Landlord or which the Landlord is deemed responsible to provide in
accordance with the terms of this Lease or the consideration for
such goods and services,
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whether in each case
characterized as goods and services tax, sales tax, multistage
sales tax, value added tax, consumption tax, or any other tax,
levy, duty or assessment;
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(m) |
“Premises” means that portion
of the Building located on the sixth floor consisting of
approximately 5,342 square feet of Rentable Area (subject to final
measurement in accordance with this Lease) shown outlined in black
on Schedule “A” but does not include the exterior faces
of any adjoining corridors, outside walls or roof;
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(n) |
“Proportionate Share” means
that proportion expressed as a fraction, the numerator of which is
the Rentable Area of the Premises in square feet, and the
denominator of which is the Total Rentable Area whether rented or
not, calculated in square feet in accordance with this Lease. The
Landlord will instruct the Land Surveyor to base his measurements
upon the standards set out in sub-paragraph (o) below and
certification thereof by the Land Surveyor will be conclusive and
binding on the Landlord and Tenant. Provided that if there is any
alteration or addition to the Building resulting in a greater or
lesser rentable area to the tenants, or the approximate floor area
set forth in sub-paragraph (m) above is incorrect the Landlord,
from time to time, may cause a redetermination of the area of the
Premises or the area of all or any part of the Total Rentable Area
of the Building by the Land Surveyor and a recalculation of
Proportionate Share shall be made based on such redetermination.
Notwithstanding the provisions of this definition, if during the
whole or any Rental Year during the Term the Building shall be less
than ninety percent (90%) occupied by tenants, the amount of Common
Costs for that Rental Year shall be deemed to be an amount equal to
the Common Costs which would have been incurred if the Building had
been ninety percent (90%) occupied by tenants;
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(o) |
“Rentable Area” of any
premises on any floor or level of the Building means the area of
the floor space therein as determined by the Landlord either by
actual measurement or from plans therefor as follows:
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(i) |
in the case of premises or a part of any
premises comprising a single tenancy floor in the Building: the
Rentable Area of such premises or part thereof shall be computed by
measuring to the inside finish of permanent outer Building walls
and shall include all area within the outer Building walls without
deduction for columns and projections necessary to the Building and
shall include the part of the Common Areas and Facilities within,
and exclusively serving the floor, but shall not include stairs and
elevator shafts supplied by the Landlord for use in common with
other tenants, deck space, flues, stacks, pipes, shafts, conduits
and vertical ducts within their enclosing walls measured to the
interior of those enclosing walls. The amount so determined shall
be increased by five percent (5%) to determine Rentable Area;
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in the case of premises or a part of any
premises on a multiple tenancy floor or level in the Building: the
Rentable Area of such premises or part thereof shall be computed by
measuring to the inside finish of permanent outer Building walls,
to the side interior to the premises of corridor walls and other
permanent partitions and to the centre of dividing walls or
partitions that separate such premises from adjoining rentable
areas without deduction for columns and projections necessary to
the Building and shall include a portion of the part of the Common
Areas and Facilities within, and exclusively serving the floor, but
shall not include stairs and elevator shafts supplied by the
Landlord for use in common with other tenants, deck space, flues,
stacks, pipes, shafts, conduits and vertical ducts within their
enclosing walls measuring to the interior of those enclosing walls.
The amount so determined shall be increased by twelve percent (12%)
to determine Rentable Area;
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(iii) |
the portion of the part of the Common Areas and
Facilities included in Rentable Area in the case of premises on a
multiple tenancy floor shall be computed by multiplying the
aggregate of the floor area of the part of the Common Areas and
Facilities on the floor by a fraction the numerator of which is the
Rentable Area (excluding such part of the Common Areas and
Facilities on the floor) of the Premises and the denominator of
which is the Rentable Area (excluding such part of the Common Areas
and Facilities on the floor) of all premises on such floor intended
to be leased.
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The inside finish of
permanent outer Building walls shall be deemed to be, for the
purpose of measurement, the inside surface of the glass in any
exterior curtain wall (or the inside surface of the exterior wall
if the wall contains no glass). The Rentable Area of the Premises
shall be as from time to time calculated and determined by the
Landlord, but it is agreed that as at the date hereof the
Rentable
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Area of the Premises is as set out in
sub-paragraph 1.1 (m) and Schedule “A” hereto;
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(p) |
“Rental Year” means for the
purposes of the first Rental Year, the period commencing on the
Commencement Date and terminating on the last day of the fiscal
year of the Landlord, and in the case of each subsequent Rental
Year, shall mean each twelve (12) month period thereafter so that
the Rental Year coincides with the Landlord’s fiscal
year;
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(q) |
“Rules and Regulations” means
the rules and regulations provided for in Article 16 hereof;
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(r) |
“Term” means the term of
years and months commencing on the Commencement Date as set out in
Article 2.2;
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(s) |
“Total Rentable Area” means
the total Rentable Area of all floors and levels of the Building,
whether rented or not, calculated as if the Building were entirely
occupied by tenants renting whole floors. The lobby and entrances
on the ground floor used in common by tenants, the area comprising
the underground parking facilities on the Lands, any amenity area
and areas for storage shall be excluded from Total Rentable Area.
The calculation of the Total Rentable Area, whether rented or not,
shall be determined by the Landlord upon completion of the Building
and shall be adjusted from time to time to give effect to any
structural or fractional change affecting the same.
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ARTICLE 2
DEMISE AND TERM
2.1
Demise
The Landlord, in consideration of the rents,
covenants, agreements and conditions herein to be paid, observed
and performed by the Tenant, does hereby demise and lease to the
Tenant the Premises for the Term.
2.2
Term
Subject to the terms and conditions of this
Lease, the Tenant shall have and hold the Premises for a term of
five (5) years from and including the Commencement Date to and
including the 31 st day of August, 2012.
2.3 Delay
in delivery of Premises
The Landlord will not be liable for any loss,
injury, damage or inconvenience which the Tenant may sustain by
reason of any delay in delivery of possession of the Premises to
the Tenant because of construction of the Building not having been
completed but Gross Rent will abate until the earlier of thirty
(30) days after the Landlord advises the Tenant in writing that the
Premises are available for possession or the date upon which the
Tenant actually takes possession.
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2.4 Use of
Additional Areas
The use and occupation by the Tenant of the
Premises includes the non-exclusive and non-transferable right or
licence to the use and benefit in common with others entitled
thereto and for the purposes for which they are intended, and
during such hours as the Building may be open for business, as
determined by the Landlord from time to time, of the Common Areas
and Facilities, subject in each case to the provisions of this
Lease.
ARTICLE 3
RENT, TAXES AND OTHER
CHARGES
3.1 Basic
Rent
The Tenant will pay to the Landlord in advance
in lawful money of Canada annual Basic Rent commencing on the
Commencement Date and thereafter on the first day of each and every
month during the Term.
The Tenant acknowledges that the annual Basic
Rent stipulated above has been determined on the basis of dollar
amounts set out below per square feet of estimated Rentable Area of
the Premises. If the Rentable Area of the Premises is determined to
be more or less than 5,342 square feet, then the Basic Rent payable
under this Article 3.1 shall be adjusted in accordance with Article
4.2.
| Lease Year |
Per Square Foot |
Annual Basic Rent |
Monthly Basic Rent |
| 1 |
$20.50 |
$109,511.00 |
$9,125.92 |
| 2 |
$21.50 |
$114,853.00 |
$9,571.08 |
| 3 |
$22.50 |
$120,195.00 |
$10,016.25 |
| 4 |
$23.50 |
$125,537.00 |
$10,461.42 |
| 5 |
$24.50 |
$130,879.00 |
$10,906.58 |
3.2
Additional Rent for Common Costs
The Tenant will pay to the Landlord the
Tenant’s Proportionate Share of Common Costs in addition to
the Basic Rent. Prior to the commencement of each Rental Year of
the Term, the Landlord will deliver to the Tenant a statement
setting forth the Landlord’s reasonable estimate of the
Tenant’s Proportionate Share of Common Costs for such Rental
Year and thereafter during such Rental Year the Tenant will pay to
the Landlord monthly in advance on each day fixed for the payment
of Basic Rent an amount equal to one-twelfth of the Tenant’s
Proportionate Share of such estimated Common Costs for such Rental
Year, provided that in the Rental Year in which
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the Term expires the Tenant’s
Proportionate Share of Common Costs in respect of that Rental Year
will be paid proportionately by equal monthly instalments during
the remainder of the Term.
3.3
Reporting on Tenant’s Proportionate Share of Common
Costs
As soon as reasonably practical following the
end of each Rental Year of the Term, the Landlord will deliver to
the Tenant a statement showing the actual amount of the
Tenant’s Proportionate Share of Common Costs and setting
forth in reasonable detail the Common Costs incurred by the
Landlord during such year. If an overpayment of the Tenant’s
Proportionate Share of Common Costs has been made by the Tenant,
the Landlord will credit such amount to the Proportionate Share of
Common Costs for the next ensuing period and, if there is no
ensuing period, such amount will be forthwith paid to the Tenant.
If an amount remains owing to the Landlord in respect of the
Tenant’s Proportionate Share of Common Costs, the Tenant will
pay such amount forthwith to the Landlord. The covenants contained
in this Article 3.3 will survive the termination or expiration of
this Lease.
3.4
Additional Rent
All moneys and charges which from time to time
may be owing by the Tenant to the Landlord pursuant to this Lease
including, without limitation, moneys payable by way of indemnity
and Tenant’s Proportionate Share of Common Costs, and whether
expressed to be rent or not, are hereby deemed to be Additional
Rent. The Tenant will pay all such moneys to the Landlord upon
demand by the Landlord unless other terms for payment are expressly
stipulated in this Lease. If the Tenant fails to pay any Additional
Rent, as and when due, the Landlord will have the same remedies for
the collection of Additional Rent as it has for the recovery of
Basic Rent in arrears. If the Tenant at any time or from time to
time fails to pay to any person any sum which the Tenant is obliged
to pay pursuant to this Lease, subject to Article 6.2, the Landlord
may pay any such sum on behalf of the Tenant and same will then be
a debt owing by the Tenant to the Landlord from and including the
date of payment by the Landlord.
3.5
Interest on Amounts in Arrears
When Basic Rent or Additional Rent, including
any interest accrued thereon, payable thereunder by the Tenant to
the Landlord is in arrears, the same will bear interest at a rate
equal to two percent (2%) per month from the date such rent became
due to and including the date of payment. The Landlord will have
all remedies for the collection of such interest as it has for the
recovery of Basic Rent in arrears.
3.6
Tenant’s Taxes and Other Charges
The Tenant will pay, as and when due, to the
authority or person to which same are owing:
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(a) |
all taxes, licence fees, rates, duties and
assessments imposed, assessed or levied by any lawful authority
during the Term relating to the business carried on in and the use
and occupancy of the Premises by the Tenant including those
relating to personal property and all business and trade fixtures
and other improvements owned or installed by or on behalf of the
Tenant in, on or affixed to the Premises,
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whether any such taxes,
licence fees, rates, duties and assessments are payable by law by
the Tenant or by the Landlord and whether or not same are allocated
separately in respect of the Premises; and
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(b) |
all charges, rates, levies and assessments
imposed, assessed or levied by any lawful authority during the Term
in respect of electricity, light, heat, power, water, telephone and
utilities of whatsoever nature or kind (including works and
services in connection therewith) used in or supplied to the
Premises.
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3.7 Payment of
Other Taxes
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(a) |
The Tenant shall pay to the Landlord Other Taxes
as follows:
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(i) |
if the amounts described in Subsections 1.1(
1 )(i) and (iii) are for and in respect of items for the
benefit of the Tenant only, then in respect of such amounts the
full amount of the Other Taxes;
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(ii) |
if the amounts described in Subsections 1.1(
1 )(i) and (iii) are for or in respect of items for the
Building as a whole, then in respect of such amounts the
Tenant’s Proportionate Share of the Other Taxes;
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(iii) |
the full amount of the Other Taxes in respect of
the amounts described in Subsection 1.1( 1 )(ii);
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and such amounts of
Other Taxes shall, subject to Subsection 3.7(c) be paid:
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(iv) |
at the same time and in the same manner monthly
payments of Basic Rent and Additional Rent are due and payable;
or
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(v) |
at the time the taxing authority in respect of
Other Taxes requires the same to be paid by the Landlord if such
time is earlier than the time in Subsection 3.7(a)(iv) above.
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(b) |
If a specific assessment of Other Taxes is
unknown for whatever reason or the Landlord has not estimated a
monthly payment of Other Taxes under Subsection 3.7(c) and any
amount of Other Taxes is not paid in accordance with Subsections
3.7(a)(iv) and (v) above, then the Tenant shall pay the amount or
amounts of Other Taxes to the Landlord within five business days of
receipt of notice from the Landlord specifying the amount of such
Other Taxes.
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(c) |
The Landlord shall for purposes of Subsection
3.7(a)(iv) above estimate the amount of Other Taxes to be paid in
advance with monthly payments of Basic Rent and Additional Rent for
the period to which the estimate applies. Any necessary adjustment
after the period in question shall be made in the same manner as
Additional Rent.
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(d) |
All Other Taxes shall be calculated and paid
without regard to any input tax credits, set-offs, exceptions,
exemptions or deductions to which the Landlord is or may be
entitled to.
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(e) |
The amounts payable by the Tenant as Other Taxes
shall be deemed not to be Basic Rent or Additional Rent, but
nevertheless the Landlord shall have all the same rights and
remedies in the event of non-payment of Other Taxes as it has for
non-payment of Basic Rent and Additional Rent.
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(f) |
Upon request by the Landlord, the Tenant will
deliver promptly to the Landlord, for inspection, receipts for
payment of all charges payable by the Tenant pursuant to Articles
3.6 and 3.7.
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3.8 Landlord as
Supplier
Should the Landlord supply or elect to supply
steam, water, gas, electricity or sewage facilities or any other
utility used or consumed on the Premises or pay the same on a bulk
basis on behalf of the Building or any part thereof the Tenant will
purchase and pay for the same payable with the next monthly Basic
Rent payment due, at rates not in excess of public utility rates or
prevailing market rates for the same service if applicable. In no
event will the Landlord have any obligations or liability in
connection with the cessation or unavailability or interruption or
suspension of any service or utilities at any time whether or not
supplied by the Landlord. Should individual meters or apparatus for
measurement of consumption for any or all utilities consumed on the
Premises by the Tenant not be provided, the Landlord will allocate
the cost of such utilities using as the basis for such allocation
the Landlord’s reasonable estimate of the relative rates of
consumption of each such tenant; such allocation by the Landlord
will be conclusive and binding on the Tenant and will be payable by
the Tenant with the monthly Basic Rent payment due.
3.9 Net
Lease
The Tenant will pay to the Landlord duly and
punctually all Basic Rent and Additional Rent required to be paid
by the Tenant pursuant to this Lease without any deduction,
abatement or setoff whatsoever, it being the intention of the
Landlord and Tenant that this Lease is a completely carefree net
lease to the Landlord, that all expenses, costs, payments and
outgoings incurred in respect of the Premises and the Building,
including their share of expenses for Common Areas and Facilities
(unless otherwise expressly stipulated herein to the contrary) will
be borne by the Tenant and other tenants of the Building, and that
Basic Rent will be absolutely net to the Landlord.
3.10 Irregular
Periods
If, for any reason, it becomes necessary to
calculate Basic Rent or Additional Rent for irregular periods an
appropriate pro rata adjustment will be made on a daily basis in
order to compute such rent for such irregular periods as at the
date of termination of the Term, unless otherwise expressly set out
in this Lease.
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3.11 Dispute as
to Costs
If the Tenant disputes the amount of any moneys
to be paid by the Tenant to the Landlord pursuant to this Lease,
the certificate of a chartered accountant appointed by the Landlord
to determine such amount will be conclusive and binding on the
Landlord and Tenant. If the dispute is in connection with the
amount of Common Costs, the determination of the chartered
accountant need not be made before the date on which the Rental
Year would have ended but for the expiration of the Term. The cost
of obtaining such certificate shall be for the account of the
Tenant unless the amount of money to be paid by the Tenant as
claimed by the Landlord exceeds the amount of money to be paid by
the Tenant as established in the certificate by more than five
percent (5%) of the amount claimed by the Landlord.
3.12
Landlord’s Taxes
Subject to the obligation of the Tenant to pay
its Proportionate Share of Common Costs, the Landlord will pay real
property taxes with respect to the Lands and Building as and when
due, subject to lawful deferral.
3.13
Parking
The Landlord will provide the Tenant during the
Term and any renewal with the licence to use two (2) parking
stall(s) designated by the Landlord and located in the sub-grade
parking facility. The Tenant will pay the Landlord for the use
thereof $250.00 per month as Additional Rent payable on the first
day of each month during the Term subject to the right of the
Landlord to increase the monthly charge to charges prevailing for
similar parking in similar areas of Vancouver.
The Landlord offers no warranty or indemnity as
to the protection or safety of vehicles left in the sub-grade
parking facility or other parking areas arranged by the Landlord
nor any goods left within the vehicles and Tenant shall inform
owners of vehicles that their own policies of insurance must be
utilized in order to make any claim if such loss or damage
occurs.
Accordingly:
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(a) |
the Landlord, its servants and agents, accept no
liability in respect of any loss, destruction, damage or theft of
or from the vehicle or the contents of the vehicle save and to the
extent where the same is proved by a court of competent
jurisdiction in British Columbia to be caused by the negligence,
wilful act or default or breach of statutory duty of the Landlord,
its servants or agents, and
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(b) |
the Landlord, its servants and agents, accept no
liability in respect of the death of or personal injury sustained
by Tenants and related parties in the car park save and to the
extent where the same is proved by a court of competent
jurisdiction in British Columbia to be caused by the negligence,
wilful default or breach of statutory duty of the Landlord, its
servants or agents.
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3.14
Pre-authorized Payment Plan
Not Applicable – Monthly lease payments to
be made by issuance of cheques drawn on the Tenant’s bank
account held with a Canadian financial institution.
3.15 Covenant
to Pay Rent
The Tenant covenants to pay Basic Rent,
Additional Rent and all other costs and charges as herein
provided.
ARTICLE 4
QUALITY, USE AND
OCCUPANCY OF THE PREMISES AND PROVISION OF LANDLORD’S
SERVICES
4.1 Examination
of Premises
The Tenant acknowledges that the Landlord is
leasing the Premises to the Tenant on an “as is” basis
and that the Premises are in good and satisfactory condition. There
shall be a fixturing period from July 1, 2007 to September 30, 2007
during which no rent will be payable and a total budget for tenant
improvements as further described in Article 7.9.
4.2 Adjustment
when Areas are Measured and Changed
If the Rentable Area of the Premises or the
Total Rentable Area was estimated by or on behalf of the Landlord
for the purposes of this Lease because the Rentable Area thereof
could not be accurately calculated prior to the execution of the
Lease, or if the Rentable Area of the Premises or the Total
Rentable Area changes at any time during the Term, then, when the
Rentable Area of the Premises and the Total Rentable Area can be
accurately calculated and if the estimate previously made was not
correct or has changed, the Rentable Area of the Premises and the
Total Rentable Area shall then be calculated and the appropriate
adjustments made with respect to Basic Rent payable under this
Lease and to the definition of Proportionate Share.
4.3 Possession
and Use of Premises
The Tenant will take possession of the Premises
on the Commencement Date. The Tenant will not use or permit the
Premises or any part thereof to be used for any purpose other than
for business offices and related uses. Without restricting the
generality of the foregoing, the Tenant will not carry on any
business which because of the merchandise or services likely to be
sold or the merchandising or pricing methods likely to be used
would in the reasonable opinion of the Landlord tend to lower the
character of the Building.
The Premises will be used solely for the purpose
of administrative and employment training offices and related uses,
and will be operated continuously throughout the Term by the Tenant
under the name DOMAIN HOLDINGS INC. (or such other name as the
Landlord may approve in writing), in accordance with any rules and
regulations for the Building as established by the Landlord from
time to time.
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If, with the permission of the Landlord, the
Tenant occupies the Premises or any part thereof prior to the
Commencement Date, such occupancy will be deemed to be permissive
at the will of the Landlord and in the absence of any other written
agreement relating thereto will be governed by the provisions of
this Lease including payment for use and occupation at the rate of
Basic Rent and Additional Rent herein mentioned pro-rated on a
daily basis.
The Tenant shall not allow the Premises to be
unoccupied or otherwise stop operating its normal course of
business or otherwise “go dark” for a period of more
than fourteen (14) days without the written permission of the
Landlord.
4.4 No
Nuisance, Overloading or Waste
At no time during the Term will the Tenant carry
on or permit or suffer to be carried on in the Premises or
elsewhere in the Building anything which is noxious or offensive or
which would constitute a public or private nuisance or which would
annoy or disturb or cause nuisance or damage to the occupiers or
owners of lands and premises adjoining or in the vicinity of the
Premises or the Building. The Tenant will not permit any
overloading of the floor of the Premises and will not place thereon
any heavy object without the prior written consent of the Landlord.
The Tenant will not cause any waste or damage to the Premises.
4.5 No
Hazardous Substances
The Tenant will not locate, create or store in
the Premises, the Building or the Lands and will not permit any of
its agents, employees, suppliers, customers, invitees, sub-tenants,
licensees or any other person having business with or under the
control of the Tenant to locate, create or store on the Premises,
the Building or the Lands any Hazardous Substance. A
“Hazardous Substance” shall include, without
limitation, any solid, liquid, smoke, waste, odour, heat,
vibration, radiation, or combination thereof, which is deemed,
classed or found to affect the natural, physical, chemical or
biological quality of the environment, or which is or is likely to
be injurious to the health or safety of persons, or which is
injurious or damaging to property, plant or animal life, or which
interferes with or is likely to interfere with the comfort,
livelihood or enjoyment of life by a person, or which is declared
to be hazardous or toxic under any law or regulation now or
hereinafter enacted or promulgated by a governmental authority
having jurisdiction over the Landlord, the Tenant or the Premises,
and without limiting the generality of the foregoing shall include
any dangerous, noxious, toxic, flammable or explosive substance,
radioactive material, asbestos or PCB’s. If the Tenant is in
breach of the foregoing prohibition regarding the location,
creation or storage of Hazardous Substances, the Landlord, in
addition to all other remedies it has under this Lease, may require
the Tenant, at the Tenant’s costs to cause such Hazardous
Substances to be removed and to cause the Premises, the Building or
the Lands, as the case may be, to be properly restored and repaired
all in accordance with any applicable laws, bylaws, rules,
regulations or orders. Alternatively, at its option, the Landlord
may cause such hazardous substances to be removed and may repair
and restore the Premises, the Building or the Lands, as the case
may be, and may cause its employees or agents to enter on the
Premises for such purpose. Should the Landlord undertake such
removal, repair or restoration, the Tenant shall forthwith pay to
the Landlord the total cost of such removal, repair or restoration
plus a fee equal to ten percent (10%) of such cost and the total of
such fee and costs shall, until paid to the Landlord, bear interest
at the rate stipulated herein for amounts in arrears and shall
be
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recoverable as Additional Rent reserved
hereunder. The Tenant hereby indemnifies and holds the Landlord
harmless from and against all loss, cost, damage and expense
(including, without limitation, legal fees on a solicitor and own
client basis and costs incurred in the investigation, defense and
settlement of claims) that the Landlord may incur as a result of or
in connection with or arising from the breach of this Article 4.5
by the Tenant or in respect of non-compliance by the Tenant with
any federal, provincial or municipal laws, bylaws, rules,
regulations or orders relating to Hazardous Substances. The
provisions of this paragraph requiring the Tenant to reimburse the
Landlord’s costs plus pay a fee of ten percent (10%) of such
costs, and requiring the Tenant to indemnify the Landlord, shall
survive the termination of this Lease, anything to the contrary
notwithstanding.
4.6
Signs
The Tenant will not erect, paint, display,
place, affix or maintain or permit to be erected, painted,
displayed, placed, affixed or maintained any sign, decoration,
picture, lettering, symbol or notice of any nature or kind
whatsoever (herein called the “Signs”) either on the
exterior walls of the Premises or within the Premises if any such
sign is visible from the exterior thereof or in the Building or
Common Areas and Facilities without first obtaining the
Landlord’s written consent which consent may be refused if in
the Landlord’s sole discretion such Signs are not in keeping
with the character of the Building. The Tenant, at its cost, will
acquire all requisite statutory permits which may be required to
erect or maintain any such approved Signs. The Tenant will cause
any Signs to be maintained in a proper state of repair and will
indemnify and save harmless the Landlord from all personal injuries
or property damage or loss to any person caused by the existence of
any such Signs. The Landlord will provide, at the cost of the
Tenant, standard floor and door signage and will install and
maintain a directory board for the Building in the lobby on the
main floor.
4.7 Deliveries,
Loading and Shipping
The Tenant will permit deliveries to the
Premises and loading and unloading to be done only in and from
loading areas designated by the Landlord and only in accordance
with the Rules and Regulations as the Landlord from time to time
may prescribe. The delivery or shipping of merchandise, supplies
and fixtures to and from the Premises will be subject to such Rules
and Regulations as in the sole judgment of the Landlord are
necessary for the proper operation of the Premises and the
Building.
4.8
Windows
The Landlord shall replace any glass in the
outside windows and doors of the perimeter of the Premises
(including perimeter windows in the exterior walls) with as good
quality and size and in the case of perimeter windows, with glass
of the same type and colour with the expense to be deemed a Common
Cost during the continuance of this Lease, unless the glass shall
be broken by the Tenant or the Tenant’s invitees, employees
or agents, or by vandalism or in the course of a break-in in which
event the Tenant shall forthwith reimburse the Landlord for such
costs.
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4.9 Condition
of Premises
The Tenant will not permit the Premises to
become untidy or unsightly and will not permit waste or refuse to
accumulate therein.
4.10 Not to
Affect Landlord’s Insurance
The Tenant will not do or omit to do or permit
to be done or omitted to be done on the Premises or elsewhere in
the Building anything which would directly or indirectly cause the
insurance premiums in respect of the Building or the
Landlord’s premiums for liability insurance to be increased.
If any insurance premium is thereby increased, the Tenant will pay
to the Landlord the amount by which the insurance premiums are so
increased. The Tenant will not store or permit to be stored upon
the Premises anything of a dangerous, inflammable or explosive
nature or anything which would have the effect of increasing the
Landlord’s insurance premiums or of leading to the
cancellation of the Landlord’s insurance. If any insurance
policy of the Landlord is cancelled by an insurer by reason of the
use and occupation of the Premises by the Tenant or by an assignee,
subtenant or anyone permitted by the Tenant to be on the Premises,
then the Landlord, at its option and without prejudice to its other
rights and remedies, may terminate this Lease upon seven (7)
days’ written notice to the Tenant and thereupon Basic Rent
and Additional Rent will be apportioned and paid in full to the
date of expiration of such notice and the Tenant will immediately
deliver up vacant possession of the Premises to the Landlord and
the Landlord may re-enter and take possession of same and, at its
option and at the expense of the Tenant, may rectify the situation
causing such cancellation.
4.11 Preventing
Cancellation
The Landlord, by its representatives, may at any
time enter upon the Premises to remove any article or remedy any
condition which, in the reasonable opinion of the Landlord, would
be likely to lead to cancellation of any insurance policy.
4.12
Landlord’s Services
So long as the Tenant is not in default under
this Lease, the Landlord will provide the services set forth in
this Article 4 provided that the Landlord will have the right at
any time, without liability or obligation to the Tenant, to
discontinue or modify any services required of it under this
Article 4 or elsewhere in this Lease during such times as may be
necessary, or as the Landlord may deem reasonably advisable, by
reason of accident or for the purpose of effecting repairs,
replacements, alterations or improvements. Without limiting the
foregoing, the Landlord will not be liable to the Tenant for
failure for any reason to supply the said services or any of them
provided that the Landlord will correct any such failure with
reasonable diligence.
4.13
Cleaning
The Landlord will cause the Common Areas and
Facilities to be kept clean and tidy and reasonably free of
debris.
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4.14 Electrical
Current and Lighting Fixtures
The Landlord (subject to its ability to obtain
same from its principal supplier) will cause the Premises to be
supplied with electric current for normal lighting, which the
Tenant agrees to take and receive from the Landlord. The Tenant
will pay the cost, including installation, of all electric light
bulbs, tubes and ballasts used to replace those installed in the
Premises at the commencement of the Term and the cost of cleaning,
maintenance and repair of the fluorescent fixtures therein and the
cost of periodic relamping and destaticizing of the said
fluorescent fixtures as may be required from time to time by the
Landlord in accordance with prudent building management practices.
The Landlord, at its option, will have the exclusive right to
provide and carry out at the Tenant’s expense such
installations, maintenance, repair, relamping and destaticizing at
reasonably competitive rates.
4.15
Air-Conditioning and Heating
The Landlord will provide an air-conditioning
and heating system (but not any special air-conditioning as may be
required with respect to the operation of computer equipment or any
other equipment to be installed in the Premises) to provide a
reasonable and constant supply of air to the Premises that is
heated or cooled and capable of maintaining a reasonable
temperature in the Premises. Same will be supplied during the
following hours on business days; namely, Monday to Friday
inclusive 8:00 a.m. to 6:00 p.m. (except for statutory holidays)
and on Saturday from 8:00 a.m. to 12:00 noon. The Landlord,
however, when requested by the Tenant, may furnish air-conditioning
to the Premises at such other times, including weekends and
statutory holidays, but only at the expense of the Tenant, based on
the Landlord’s estimate of its cost for labour and utilities
used in the operation of the air-conditioning system at such hours
or on such days. Such service will apply to all of the Building,
provided always that the obligations of the Landlord hereunder will
be conditional upon the following:
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(a) |
the average amount of electrical energy consumed
by the Tenant will be that amount required for normal lighting;
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(b) |
the interior or partitioning of the Premises
will not impede air-conditioning and heating;
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the Tenant shall keep the window shading on
exterior windows fully closed when such windows are exposed to
direct sunlight.
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If the Landlord deems it necessary to run
elements of the system through the Premises in order to serve other
tenants, the Tenant will permit the Landlord and its agents and
contractors to perform such work in the Premises. The Landlord will
make a preliminary adjustment of the airconditioning and heating
system at the commencement of the Term. The Tenant acknowledges
that a reasonable time will be required after the Building has been
fully occupied in order to fully adjust and balance the
air-conditioning system and heating systems. If the apparatus or
any part thereof used in heating and/or air-conditioning the
Premises become damaged, destroyed or inoperative, the Landlord
will have a reasonable time within which to repair the damage or
repair the apparatus and the Landlord will not in any event be
liable to the Tenant or its officers or
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employees for any direct, indirect or
consequential damage or damages for personal discomfort or illness
arising by reason of the interruption of such service.
4.16 Use of
Electric Current
The Tenant covenants and agrees that at all
times its use of electric current will not exceed the capacity of
existing electrical wiring in and supplying the Premises.
4.17 Floor
Covering
The Tenant will maintain and repair the floor
covering in the Premises in as good a condition as reasonable use
will permit, reasonable wear and tear only excepted, and whether or
not installed by the Landlord. Without restricting the generality
of the foregoing, such maintenance and repair will include in the
case of carpeting regular spot cleaning and shampooing thereof in a
manner acceptable to the Landlord or alternatively the Landlord may
perform the Tenants obligation in Article 4.17 at its
discretion.
4.18
Elevators
Subject to the supervision of the Landlord, the
Landlord will furnish for use by the Tenant and its employees and
invitees in common with other persons entitled thereto passenger
elevator service to the Premises, and will furnish for the use of
the Tenant in common with others entitled thereto at reasonable
intervals and at such hours as the Landlord may select, freight
elevator service to the Premises for the carriage of furniture,
equipment, deliveries and supplies. If any elevator shall become
inoperative or shall be damaged or destroyed, the Landlord shall
have a reasonable time within which to repair such damage or
replace such elevator and the Landlord shall repair or replace the
same as soon as reasonably possible, but shall in no event be
liable for indirect or consequential damages or other damages for
personal discomfort or illness during such period of repair or
replacement.
4.19
Washrooms
Unless the Premises include the washrooms on any
floor which are standard to the Building and would otherwise be
available for common use, the Landlord will provide for the use of
the Tenant and its employees and invitees, in common with others
entitled thereto, washrooms available to the Premises on each floor
in the Building upon which any part of the Premises is located.
4.20 Janitor
Services
The Landlord will provide janitor and cleaning
services to the Premises, it being agreed by the Tenant that any
janitor or cleaning service which the Landlord shall agree to
provide in excess of services ordinarily provided by the Landlord
for tenants of the Building (including those extra services which
the Landlord shall make available by demand or special arrangement)
shall be provided at the Tenant’s expense.
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ARTICLE 5
ASSIGNMENT, SUB-LETTING, SALE
5.1 Consent
Required
Prior to the Tenant agreeing to the terms and
conditions with any person or persons (other than the Landlord)
upon which it would be willing to effect a Transfer (as hereinafter
defined) of this Lease, the Tenant shall give written notice
thereof to the Landlord.
The Tenant will not assign this Lease in whole
or in part, nor sublet all or any part of the Premises, nor
mortgage or encumber this Lease or the Premises or any part
thereof, nor suffer or permit the occupation of, or part with or
share possession of, all or any part of the Premises by any person
(all of the foregoing being collectively referred to in this
Article 5 as a “Transfer”), without the prior written
consent of the Landlord in each instance. No request for consent
will be considered by the Landlord unless the Tenant has notified
the Landlord of all terms and conditions of the proposed Transfer
with the proposed Transferee (as hereinafter defined). Subject to
the exercise of the Landlord’s option to cancel contained in
Article 5.2 and to the covenant, creditworthiness, and business
reputation of the Transferee being at least equal to that of the
Tenant, the Landlord’s consent may not be unreasonably
withheld. The consent by the Landlord to any Transfer, if granted,
shall not constitute a waiver of the necessity for such consent to
any subsequent Transfer. This restriction against a Transfer is to
be construed so as to include a restriction against any Transfer by
operation of law and no Transfer shall take place by reason of
failure by the Landlord to give notice to the Tenant within ten
(10) business days as required by Article 5.2.
If there is a permitted Transfer of this Lease,
the Landlord may collect rent from the assignee, subtenant or
occupant (all of the foregoing being hereinafter collectively
referred to as the “Transferee”), and apply the net
amount collected to the Gross Rent required to be paid pursuant to
this Lease, but no acceptance by the Landlord of any payments by a
Transferee shall be deemed a waiver of this covenant, or the
acceptance of the Transferee as Tenant, or a release of the Tenant
or the Guarantor, if any, from the further performance by the
Tenant or the Guarantor, if any, of the covenants or obligations on
the part of the Tenant or the Guarantor, if any, herein contained.
Any document or consent evidencing such Transfer of this Lease if
permitted or consented to by the Landlord shall be prepared by the
Landlord or its solicitors, and all legal costs with respect
thereto shall be paid by the Tenant to the Landlord forthwith upon
demand as Additional Rent. Any consent by the Landlord shall be
subject to the Tenant causing any such Transferee to promptly
execute an agreement directly with the Landlord agreeing to be
bound by all of the terms, covenants and conditions contained in
this Lease as if such Transferee had originally executed this Lease
as Tenant. Notwithstanding any such Transfer permitted or consented
to by the Landlord, the Tenant shall be jointly and severally
liable with the Transferee on this Lease and shall not be released
from performing any of the terms, covenants and conditions of this
Lease.
5.2
Landlord’s Option
If the Tenant intends to effect a Transfer of
all or any part of the Premises or this Lease, in whole or in part,
or any estate or interest hereunder, then and so often as such
event shall occur, the
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Tenant shall give prior written notice to the
Landlord of such intent, specifying therein the proposed Transferee
and providing all material information with respect thereto
including, without limitation, information concerning the
principals thereof and such credit, financial or business
information relating to the proposed Transferee as the Landlord
requires, and the Landlord shall, within ten (10) business days
thereafter, notify the Tenant in writing that, either:
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(a) |
it consents or does not consent in accordance
with the provisions and qualifications to this Article 5 to the
Transfer; or
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(b) |
it elects to cancel this Lease on the date on
which the proposed Transfer was to be effected in preference to
giving such consent.
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If the Landlord elects to cancel this Lease as
aforesaid, the Tenant shall notify the Landlord in writing within
five (5) days thereafter of the Tenant’s intention either to
refrain from such Transfer or to accept the cancellation of this
Lease, and if the Tenant fails to deliver such notice within such
period of five (5) days, this Lease will thereby be terminated as
of the date on which the proposed Transfer was to be effected. If
the Tenant advises the Landlord within such five (5) day period
that it intends to refrain from such Transfer, then the
Landlord’s election to cancel this Lease as aforesaid shall
become null and void in such instance.
5.3 No
Advertising of the Premises
The Tenant shall not advertise the whole or any
part of the Premises or this Lease for purposes of a Transfer and
shall not print, publish, post, display or broadcast any notice or
advertisement to that effect, and shall not permit any broker or
other person to do any of the foregoing, unless the complete text
and format of any such notice, advertisement, or offer is first
approved in writing by the Landlord, such consent not to be
unreasonably withheld. Without in any way restricting or limiting
the Landlord’s right to refuse any text or format on other
grounds, any text or format proposed by the Tenant sha
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