This Lease Agreement involves
Industry: Computer Services Sector: Technology
THIS LEASE is dated as of the 16 th day of July, 2007.
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”)
DOMAIN HOLDINGS INC. of Suite 635/645, 375 Water Street, Vancouver, BC, V6B 5C6
In this Lease, unless there is something in the context inconsistent therewith, the Landlord and Tenant agree that:
“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;
“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;
“Basic Rent” means the rent referred to in Article 3.1;
“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;
“Commencement Date” means the 1 st day of October, 2007.
“Common Areas and Facilities” means those areas, facilities, utilities, improvements, equipment and installations in the Building which:
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from time to time, are not designated or intended by the Landlord to be leased to tenants of the Building, and
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.
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;
“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:
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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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;
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:
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;
window cleaners, porters, janitors, cleaners and miscellaneous handymen;
watchmen, commissionaires, caretakers and security personnel; and
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;
service contracts with independent contractors in respect of the maintenance, operation, repair, replacement and management of the Building;
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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insurance coverage obtained by the Landlord from time to time pursuant to Article 11.5 of this Lease;
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;
supplying steam, electricity, water, sewer services, natural gas and other fuel and utility services to the Building;
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;
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;
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;
stationery supplies, postage and other material required for routine operation of the Building Manager’s office;
costs otherwise attributable to capital account on improvements, machinery and equipment which substantially reduce Common Costs as herein defined;
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);
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;
“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;
“Lands” means those certain lands and premises legally described as:
Parcel Identifier 005-888-425
Parcel Identifier 005-888-361
Parcel Identifier 005-888-522
“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;
“Lease” means this instrument, all Schedules attached hereto, the Architect’s and Land Surveyor’s certificates, if any, and the Rules and Regulations;
“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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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;
any or all amounts paid or payable by the Tenant pursuant to the Lease, as Basic Rent and Additional Rent; and
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,
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;
“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;
“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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“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:
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;
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;
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.
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;
“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;
“Rules and Regulations” means the rules and regulations provided for in Article 16 hereof;
“Term” means the term of years and months commencing on the Commencement Date as set out in Article 2.2;
“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.
DEMISE AND TERM
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.
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.
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|
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:
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
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.
3.7 Payment of Other Taxes
The Tenant shall pay to the Landlord Other Taxes as follows:
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;
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;
the full amount of the Other Taxes in respect of the amounts described in Subsection 1.1( 1 )(ii);
and such amounts of Other Taxes shall, subject to Subsection 3.7(c) be paid:
at the same time and in the same manner monthly payments of Basic Rent and Additional Rent are due and payable; or
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.
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.
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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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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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:
the average amount of electrical energy consumed by the Tenant will be that amount required for normal lighting;
the interior or partitioning of the Premises will not impede air-conditioning and heating;
the Tenant shall keep the window shading on exterior windows fully closed when such windows are exposed to direct sunlight.
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.
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.
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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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:
it consents or does not consent in accordance with the provisions and qualifications to this Article 5 to the Transfer; or
it elects to cancel this Lease on the date on which the proposed Transfer was to be effected in preference to giving such consent.
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 shall not contain any reference to the rental rate for the Premises.
5.4 Landlord’s Conveyance
Should the Landlord convey or assign or otherwise divest itself of its interest in the Building and to the extent that the transferee or assignee thereof assumes the covenants and obligations of the Landlord herein, the Landlord will be relieved of its obligations under this Lease from and after the effective date of such conveying, assigning or divesting, save and except for the obligation to account to the Tenant for any monies then due and payable to the Tenant by the Landlord pursuant to this Lease.
COMPLIANCE WITH LAWS, BUILDERS’ LIENS, SECURITY INTERESTS
6.1 Compliance with Laws
The Tenant, during the Term and at its own expense, will promptly comply with all statutory requirements of every competent federal, provincial, municipal, regional and other statutory authority and all requirements of fire insurance underwriters in force from time to time during the Term which relate to the Tenant’s partitioning, equipment, operation and use of the Premises
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or the making by the Tenant of any alterations, replacements, changes, improvements, repairs or additions to the Premises or the conduct of any business conducted in or from the Premises.
6.2 Builders’ Liens
The Tenant will not suffer or permit any lien under the Builders’ Lien Act of British Columbia or like statute to be registered against title to the Tenant’s leasehold interest in the Premises or against title to the Lands by reason of labour, services or materials supplied or claimed to have been supplied to the Tenant or anyone holding any interest through or under the Tenant during the Term. If any such lien is registered, the Tenant will procure registration of its discharge forthwith after the lien has come to the notice of the Tenant. If the Tenant desires to contest in good faith the amount or validity of any lien and has so notified the Landlord and if the Tenant has deposited with the Landlord or has paid into Court to the credit of the lien action, the amount of the lien claim plus an amount for costs satisfactory to the Landlord, then the Tenant may defer payment of such lien claim for a period of time sufficient to enable the Tenant to contest the claim with due diligence, provided always that neither the Premises nor the Tenant’s leasehold interest therein nor the Lands will thereby become liable to forfeiture or sale. The Landlord may, but will not be obliged to, discharge any such lien at any time if, in the Landlord’s judgment, the Premises or the Tenant’s interest therein or the Lands become liable to any forfeiture or sale or is otherwise in jeopardy and any amount paid by the Landlord in so doing, together with all reasonable costs and expenses of the Landlord, will be reimbursed to the Landlord by the Tenant forthwith on demand. Nothing herein contained will be deemed to authorize the Tenant, or imply consent or agreement on the part of the Landlord, to subject the Landlord’s estate and interest in the Premises to any lien. The Landlord may at any time and from to time during the Term or any renewal thereof enter the Premises to place notices upon the Premises that the Landlord will not be responsible for any alterations, additions, repairs or rebuilding work, and they also may give such notice in writing to any potential lien claimants.
6.3 No Security Interests
The Tenant covenants that it will not create a security interest in fixtures or goods installed in the Premises, or in any improvements, equipment or structures constituting replacements, alterations and additions to the Premises including, but not being limited to, any of the Tenant’s trade fixtures or personal property located in the Premises and all improvements, items or structures constituting replacements, alterations and additions to the Premises, nor permit the filing of a notice pursuant to Section 49 of the Personal Property Security Act of British Columbia against this Lease, the Premises, the Building or the Lands (or any portion thereof), provided that the Tenant may create a security interest in fixtures or goods which may become fixtures if each secured party covenants in writing with the Landlord in a form acceptable to the Landlord that the secured party’s interest is subordinate to the Landlord’s. If the Tenant creates a security interest in the fixtures or goods which may become fixtures in the Premises not in accordance with the foregoing, in favour of a third party, or if a creditor of the Tenant files a notice pursuant to Section 49 of the Personal Property Security Act of British Columbia and the Tenant fails to discharge the security interest or Section 49 notice within fourteen (14) days of such filing, then the Tenant is in default of this Article 6.3 and, in addition to all other rights and remedies available to the Landlord, the Landlord may make any payments to a secured party required to
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release the secured party’s claim, and any such amounts paid by the Landlord shall be collectible by the Landlord from the Tenant in the same manner as rent.
REPAIRS, MAINTENANCE AND ALTERATIONS
7.1 Agreement for Construction
In the event that the Landlord and Tenant enter into an agreement whereby the Landlord agrees at the Tenant’s cost and expense to provide labour and material and other costs for work to the Premises upon the receipt of the Tenant’s plans and specifications, the Landlord shall notify the Tenant of the estimated cost of such work (as estimated by the Landlord’s contractor and the Tenant waives any claims against the Landlord or the Landlord’s contractor with respect to the accuracy of the aforementioned estimate). Upon completion of the work by the Landlord’s contractor the Landlord shall bill the Tenant for the cost of the work and the Tenant covenants and agrees to pay such amount to the Landlord within fifteen (15) days after the receipt of such statement. The cost of the work will include, in addition to labour, overhead and ancillary costs, material and equipment, permit, consultant and all other similar fees, and a management fee for a sum equal to ten percent (10%) of the final cost of the said work. Added to such cost shall be any costs incurred by the Landlord through changes that the Tenant may make or request after the Architect or other professional consultant to the Landlord has incorporated the Tenant’s approved design into the overall plans for the Building. Should the Tenant fail to make such payments as hereinabove provided, the Landlord may at any time thereafter declare this Lease to be null and void and of no further force and effect and the Tenant shall reimburse the Landlord for any costs, losses or damages.
7.2 Repair and Maintenance
The Tenant, throughout the Term at its own expense, will repair, maintain and keep the Premises and all improvements, appurtenances and equipment therein and thereon in good repair and condition, as is fitting for a comparable quality retail and office development including all repairs and maintenance to electrical, heating, ventilat