EXHIBIT 10.9
Assignment Agreement effective as of July 1, 1999 between the Company,
Techwest Management Ltd., Sideware Systems and SJM Management Ltd.
ASSIGNMENT OF LEASE
THIS AGREEMENT is dated for reference June 25, 1999.
BETWEEN:
PACIFIC CENTRE LEASEHOLDS LIMITED
(the "Landlord")
OF THE FIRST PART
AND:
SJM MANAGEMENT LTD.
(the "Tenant")
OF THE SECOND PART
AND:
TECHWEST MANAGEMENT INC.
(the "Assignee")
OF THE THIRD PART
AND:
SIDEWARE SYSTEMS INC. AND BRAINTECH, INC.
(collectively, the "Indemnifier")
OF THE FOURTH PART
WITNESSES THAT WHEREAS:
A. By a lease (the "Original Lease") dated October 10, 1990 made between
Pacific Centre North Limited ("PCNL") and the Tenant, PCNL demised and leased
unto the Tenant certain premises (the "Original Premises") on the 16th Floor of
the Building (as therein defined) comprising 5,496 square feet more or less of
Rentable Area (as therein defined);
B. By an amendment to lease (the "Amendment") dated for reference January
12, 1994, PCNL and the Tenant agreed to adjust the Net Rent payable and to
increase the notice requirement for termination;
C. By a renewal of lease (the "Renewal") dated for reference September
27, 1995, the Tenant and PCNL agreed to renew the Lease for a further term of
five (5) years expiring November 30, 2000 and to reduce the size of the Original
Premises to approximately 4,416 square feet of Rentable Area (the "Premises");
D. The Original Lease, the Amendment and the Renewal are together
referred to herein as the "Lease";
E. By an assignment of lease made as of August 31, 1998, PCNL assigned
all of its estate, right, title and interest in the Lease to the Landlord;
F. Effective July 1, 1999 (the "Effective Date"), the Tenant proposes to
assign its interest under the Lease to the Assignee, and the Landlord has agreed
to give its consent to such assignment on the terms and conditions hereinafter
set forth; and
G. The Indemnifier has agreed to indemnify the obligations of the
Assignee pursuant to this Agreement.
NOW THEREFORE THE LANDLORD, THE TENANT, THE ASSIGNEE AND THE
INDEMNIFIER, in consideration of the Premises, the sum of $1.00 paid by each
party to the others, the mutual covenants and agreements herein contained, and
other good and valuable consideration (the
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receipt and sufficiency of which is hereby acknowledged) and subject to
the terms and conditions herein set out, covenant and agree as follows:
1. INTERPRETATION
All terms defined in the Lease and used herein shall have the
respective meanings ascribed to them in the Lease unless the context otherwise
requires or unless otherwise stated herein. The defined terms in the recitals
to this Agreement shall have such meaning throughout this Agreement, unless
otherwise stated herein.
2. AMENDMENTS TO LEASE
The Lease is hereby amended, with effect as of the Effective Date, by
deleting Section 1.04.
3. ASSIGNMENT OF THE LEASE
The Tenant hereby assigns to the Assignee as of the Effective Date all
of the right, title, benefit and interest of the Tenant in and to the Premises,
together with the unexpired residue of the Term, as extended pursuant to this
Agreement, and the Lease (as hereby amended) and all of the benefit and
advantage to be derived therefrom, to hold the same onto the Assignee henceforth
for and during the residue of the Term, as hereby extended, subject to the
payment of the rent and performance of the covenants of the Tenant under the
Lease.
4. WARRANTIES AND COVENANTS OF THE TENANT IN FAVOUR OF THE ASSIGNEE
The Tenant hereby represents and warrants to, and covenants and agrees
with, the Assignee that:
(a) notwithstanding any act of the Tenant, the Lease is good, valid and
subsisting, the rents thereby reserved have been duly paid, the
covenants and conditions therein have been duly observed and performed
by the Tenant as of the date hereof, and the Tenant now has good
right, full power and absolute authority to assign the Premises and
the Lease in the manner aforesaid according to the true intent and
meaning hereof;
(b) subject to the payment of rent and the performance of the covenants
and conditions contained in the Lease, the Assignee may enter into and
hold and enjoy the Premises for the residue of the Term, for its own
use and benefit without any interruption by the Tenant or any person
claiming under it, free from all charges and encumbrances whatsoever,
and the Tenant shall at all times hereafter, at the request and cost
of the Assignee, execute such further assurances of the Premises as
the Assignee shall reasonably require;
(c) it has not previously assigned, transferred, charged, encumbered,
sublet or parted with possession of the Premises; and,
(d) it has not exercised any renewal options under the Lease.
5. COVENANTS OF THE ASSIGNEE IN FAVOUR OF THE TENANT
The Assignee hereby covenants and agrees with the Tenant that the
Assignee shall during the residue of the Term:
(a) pay the Rent reserved by the Lease;
(b) perform and observe the obligations, covenants and conditions therein
contained on the part of the tenant therein named to be observed and
performed; and,
(c) indemnify and save the Tenant harmless therefrom and from all actions,
suits, costs, losses, charges, damages and expenses for or in respect
thereof, as if the Assignee were the tenant named in the Lease.
6. COVENANTS OF THE ASSIGNEE IN FAVOUR OF THE LANDLORD
The Assignee hereby covenants and agrees with the Landlord:
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(a) to pay the Rent and Additional Rent and to observe and perform all of
the covenants, agreements and conditions of the Tenant reserved and
contained in the Lease in the same manner as if the Assignee were the
tenant named in the Lease; and
(b) not to assign or sublet or part with possession of the Premises or any
part thereof or the Lease without the prior written consent of the
Landlord pursuant to the Lease.
7. COVENANTS OF THE INDEMNIFIER IN FAVOUR OF THE LANDLORD
Each of the corporations which are identified as the Indemnifier in
this Agreement agree to execute and deliver to the Landlord an indemnity
agreement in the form attached as Schedule "A" hereto (with blanks completed)
and the Tenant agrees that the failure of the Indemnifier to do so shall
constitute a Event of Default pursuant to the Lease.
8. CONSENT OF THE LANDLORD TO THE ASSIGNMENT
The Landlord hereby consents to this Assignment on the following
conditions:
(a) neither the consent of the Landlord, nor the payment of any money, nor
the performance by the Assignee of its obligations under the Lease
shall waive or modify in any respect the rights of the Landlord under
the Lease other than to relieve the Tenant from the observance or
performance of the conditions and covenants in the Lease to be
observed or performed by the Tenant; and
(b) the consent of the Landlord shall not be deemed to be a consent to or
a waiver of the requirement set forth in the Lease for the consent of
the Landlord to any subsequent assignment of the Lease or the Term or
to any subletting or other parting with possession of the Premises or
any part thereof.
9. RELEASE OF TENANT
The Landlord hereby expressly confirms and agrees that the Tenant is
released from any further obligations arising under the Lease as of the
Effective Date, except for any claims or liabilities which exist or arise prior
to the Effective Date.
10. DEMISE
For greater certainty, and in consideration of the rents, covenants
and agreements contained in the Lease as hereby amended on the part of Tenant to
be paid, observed and performed, the Landlord does hereby demise and lease unto
the Assignee, as from the Effective Date, the Premises for and during the Term
of the Lease, and the Assignee hereby covenants and agrees to pay the rents, and
observe and perform the covenants and agreements in the Lease as hereby amended
on its part to be paid, observed and performed.
11. LEASE RATIFIED AND CONFIRMED
Except as hereby expressly amended the Lease is hereby ratified and
confirmed by the Landlord, the Tenant, the Assignee and the Indemnifier to the
effect and with the intent that the Lease and this Agreement shall be read and
construed as one document.
12. EXECUTION
The Tenant, the Assignee and the Indemnifier confirm and agree that
this Agreement has been executed by their authorized signatories and if only one
signatory has signed this Agreement, each of the Tenant, the Assignee and the
Indemnifier is authorized by its articles or incorporation or other constating
documents to execute leases by such sole authorized signatory and if this
Agreement is not executed under seal, the Tenant, the Assignee and the
Indemnifier are authorized by their articles of incorporation or other
constating documents to execute leases without a seal.
13. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the
parties and their respective heirs, personal representatives, successors and
permitted assigns.
14. CAPTIONS
The captions appearing in this Agreement have been inserted as a
matter of convenience
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and for reference only and in no way define, limit or enlarge the scope or
meaning of this Agreement or any provision hereof.
IN WITNESS WHEREOF the Landlord, the Tenant, the Assignee and the
Indemnifier have executed this Agreement as of date first above written.
THE CORPORATE SEAL OF PACIFIC CENTRE )
LEASEHOLDS LIMITED was hereunto affixed )
in the presence of: )
)
)
"signed" )
------------------------------------ )
Title: )
Authorized Signatory ) C/S
)
)
------------------------------------ )
Title: )
Authorized Signatory )
THE COMMON SEAL OF SJM MANAGEMENT LTD. )
was hereunto affixed in the presence of: )
)
"signed" )
------------------------------------ )
Title: )
Authorized Signatory ) C/S
)
)
------------------------------------ )
Title: )
Authorized Signatory )
)
THE COMMON SEAL OF TECHWEST MANAGEMENT )
INC. was hereunto affixed in the presence )
of: )
)
"signed" )
------------------------------------ )
Title: )
Authorized Signatory ) C/S
)
)
------------------------------------ )
Title: )
Authorized Signatory )
)
THE COMMON SEAL OF SIDEWARE SYSTEMS INC. )
was hereunto affixed in the presence of: )
)
"signed" )
------------------------------------ )
Title: )
Authorized Signatory ) C/S
)
)
------------------------------------ )
Title: )
Authorized Signatory )
)
)
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THE COMMON SEAL OF BRAINTECH, INC. was )
hereunto affixed in the presence of: )
)
"signed )
------------------------------------ )
Title: )
Authorized Signatory ) C/S
)
)
------------------------------------ )
Title: )
Authorized Signatory )
)
)
SCHEDULE A
INDEMNITY AGREEMENT
THIS INDEMNITY is dated the 25TH day of JUNE, 1999.
B E T W E E N :
PACIFIC CENTRE LEASEHOLDS LIMITED
(the "Landlord")
OF THE FIRST PART
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SIDEWARE SYSTEMS INC. AND BRAINTECH, INC.
(collectively, the "Indemnifier")
OF THE SECOND PART
In order to induce the Landlord to consent to an assignment of the Lease (the
"Lease") dated the 10TH day of OCTOBER, 1996, and made between the Landlord and
SJM Management Ltd. which was assigned to Techwest Management Inc. (the
"Tenant") effective July 1, 1999 (the "Effective Date") and for other good and
valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged, the Indemnifier hereby makes the following indemnity and agreement
(the "Indemnity") with and in favour of the Landlord:
A. 1. The Indemnifier hereby agrees with the Landlord that at all times
during the Term of the Lease and any extensions or renewals thereof or
overholding by the Tenant under the Lease, it will (i) make the due and punctual
payment of all Rent, monies, charges and other amounts of any kind whatsoever
payable under the Lease by the Tenant whether to the Landlord or otherwise; (ii)
effect prompt and complete performance and observance of all and singular the
terms, covenants and conditions contained in the Lease on the part of the Tenant
to be kept, observed and performed; and (iii) indemnify and save harmless the
Landlord from any loss, costs or damages arising out of any failure by the
Tenant and the Indemnifier to pay the aforesaid Rent, monies, charges and other
amounts of any kind whatsoever payable under the Lease or resulting from any
failure by the Tenant and the Indemnifier to observe or perform any of the
terms, covenants and conditions contained in the Lease.
2. The Indemnifier's covenants and obligations set out in paragraph (a)
above will not be affected by any disaffirmance, disclaimer, repudiation,
rejection, termination or unenforceability of the Lease or by any other event or
occurrence which would have the effect at law of terminating any obligations of
the Tenant prior to the termination of the Lease whether pursuant to court
proceedings or otherwise and no surrender of the Lease to which the Landlord has
not provided its written consent (all of which are referred to collectively and
individually in this Indemnity as an "Unexpected Termination"), and the
occurrence of any such Unexpected Termination shall not reduce the period of
time in which the Indemnifier's covenants and obligations hereunder apply, which
period of time includes, for greater certainty, that part of the Term of the
Lease and any extensions or renewals thereof which would have followed had the
Unexpected Termination not occurred.
B. This Indemnity is absolute, unconditional and irrevocable and the
obligations of the Indemnifier and the rights of the Landlord under this
Indemnity shall not be prejudiced, waived, released, discharged, mitigated,
impaired or affected by 1. any extension of time, indulgences or modifications
which the Landlord extends to or makes with the Tenant in respect of the
performance of any of the obligations of the Tenant (or any other obligated
Person) under the Lease; 2. any waiver by or failure of the Landlord to enforce
any of the terms, covenants and conditions contained in the Lease; 3. any
Transfer under Article VIII of the Lease by the Tenant or by any trustee,
receiver, liquidator or any other Person; 4. any consent which the Landlord
gives to any such Transfer; 5. any amendment to the Lease or any waiver by the
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Tenant of any of its rights under the Lease; 6. the expiration of the Term; or
(g) any Unexpected Termination (as that term is defined in Section 1(b) above).
The obligations of the Indemnifier are as primary obligor and not as a guarantor
of the Tenant's obligations.
C. The Indemnifier hereby expressly waives notice of the acceptance of this
Indemnity and all notice of non-performance, non-payment or non-observance on
the part of the Tenant of the terms, covenants and conditions in the Lease.
Notwithstanding the foregoing but without prejudicing the foregoing, any notice
which the Landlord desires to give to the Indemnifier shall be sufficiently
given if delivered to the Indemnifier, or, if mailed, by prepaid registered mail
addressed to the Indemnifier at the Premises, or, at the Landlord's option, at
the address, if any, set forth above and every such notice is deemed to have
been given upon the day it was delivered, or if mailed, forty-eight (48) hours
after the date it was mailed. Despite what is stated above, the Indemnifier
acknowledges that if its address is stipulated as a post office box or rural
route number, then notice will be considered to have been sufficiently given to
the Indemnifier if delivered or sent by registered mail to the Premises or,
where notice cannot be given in person upon the Premises, by posting the notice
upon the Premises. The Indemnifier may designate by notice in writing a
substitute address for that set forth above and thereafter notice shall be
directed to such substitute address. If two or more Persons are named as
Indemnifier, such notice given hereunder or under the Lease shall be deemed
sufficiently given to all such Persons if delivered or mailed in the foregoing
manner to any one of such Persons.
D. If an Event of Default has occurred under the Lease or a default under this
Indemnity, the Indemnifier waives any right to require the Landlord to (a)
proceed against the Tenant or pursue any rights or remedies against the Tenant
with respect to the Lease; (b) proceed against or exhaust any security of the
Tenant held by the Landlord; or (c) pursue any other remedy whatsoever in the
Landlord's power. The Landlord has the right to enforce this Indemnity
regardless of the acceptance of additional security from the Tenant and
regardless of any release or discharge of the Tenant by the Landlord or by
others or by operation of any law.
E. Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity is not and is not deemed to have been waived,
released, discharged, impaired or affected by reason of the release or discharge
of the Tenant in any receivership, bankruptcy, winding-up or other creditors'
proceedings or any Unexpected Termination (as that term is defined in Section
1(b) above) and shall continue with respect to the periods prior thereto and
thereafter, for and with respect to the Term as if an Unexpected Termination or
any receivership, bankruptcy, wind-up or other creditors' proceedings had not
occurred, and in furtherance hereof, the Indemnifier agrees, upon any such
Unexpected Termination or any receivership, bankruptcy, wind-up or other
creditors' proceedings, that the Indemnifier shall, at the option of the
Landlord, exercisable at any time after such Unexpected Termination or any
receivership, bankruptcy, wind-up or other creditors' proceedings, become the
Tenant of the Landlord upon the same terms and conditions as are contained in
the Lease, applied mutatis mutandis. The liability of the Indemnifier shall not
be affected by any failure of the Landlord to exercise this option, nor by any
repossession of the Premises by the Landlord provided, however, that the net
payments received by the Landlord after deducting all costs and expenses of
repossessing and reletting the Premises shall be credited from time to time by
the Landlord against the indebtedness of the Indemnifier hereunder and the
Indemnifier shall pay any balance owing to the Landlord from time to time
immediately upon demand.
F. No action or proceedings brought or instituted under this Indemnity and no
recovery in pursuance thereof shall be a bar or defence to any further action or
proceeding which may be brought under this Indemnity by reason of any further
default or default hereunder or in the performance and observance of the terms,
covenants and conditions contained in the Lease.
G. No modification of this Indemnity shall be effective unless it is in
writing and is executed by both the Indemnifier and two authorized
representatives of the Landlord.
H. The Indemnifier shall, without limiting the generality of the foregoing, be
bound by this Indemnity in the same manner as though the Indemnifier were the
Tenant named in the Lease.
I. If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) execute this Indemnity
as Indemnifier, the liability of each such individual, corporation, partnership
or other business association hereunder is joint and several. In like manner,
if the Indemnifier named in this Indemnity is a partnership or other business
association, the members of which are by virtue of statutory or general law,
subject to personal liability, the liability of each such member is joint and
several.
J. All of the terms, covenants and conditions of this Indemnity extend to and
are binding upon the Indemnifier, his, her or its heirs, executors,
administrators, successors and assigns, as the case may be, and enure to the
benefit of and may be enforced by the Landlord, the owner or owners from time to
time
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(other than the Landlord) of the freehold or leasehold title of the
Building and any Mortgagee.
K. The expressions "Building", "Event of Default", "Landlord", "Tenant",
"Rent", "Term", and "Premises" and other terms or expressions where used in this
Indemnity, respectively, have the same meaning as in the Lease.
L. The use of words in the singular or plural, or with a particular gender,
shall not limit the scope or exclude the application of any provision of this
Indemnity to such person or persons or circumstances as the context otherwise
permits.
M. The undersigned, as Indemnifier, hereby represents and warrants to and
covenants and agrees with the Landlord that:
7 notwithstanding the foregoing or any performance in whole or in part
by the Indemnifier of the covenants of this Indemnity, the Indemnifier
shall not, except at the option of the Landlord, have any entitlement
to occupy the Premises or otherwise enjoy the benefits of the Tenant
under this Lease;
8 the Indemnifier has full power and authority to enter into this
Indemnity and to perform the Indemnifier's obligations contained
herein;
9 this Indemnity is valid and binding upon the Indemnifier and
enforceable against the Indemnifier in accordance with its terms; and
10 in entering into this Indemnity, the Indemnifier, if a corporation, is
not contravening any provisions of the Company Act (British Columbia)
or the Canada Business Corporations Act (Canada), as the case may be,
as these Acts may be amended from time to time, or any statute that
replaces or supersedes those Acts.
N. If a part of this Indemnity or the application of it to any Person
hereunder or circumstance is to any extent held or rendered invalid,
unenforceable or illegal, that part:
11 is independent of the remainder of this Indemnity and is severable
from it, and its invalidity, unenforceability or illegality does not
affect, impair or invalidate the remainder of this Indemnity; and
12 continues to be applicable to and enforceable to the fullest extent
permitted by law against any Person hereunder and circumstance, except
those as to which it has been held or rendered invalid, unenforceable
or illegal.
O. The Indemnifier agrees to execute such further assurances in connection
with this Indemnity as the Landlord may reasonably require.
P. This Indemnity shall be construed in accordance with the laws of the
Province in which the Building is located.
Q. This Indemnity is the sole agreement between the Landlord and the
Indemnifier relating to the indemnity and there are no other written or verbal
agreements or representations relating thereto.
R. If the Indemnifier is a corporation, the Indemnifier confirms and agrees
that this Indemnity has been executed by its authorized signatories and that if
only one signatory has signed this Indemnity, the Indemnifier is authorized by
its articles of incorporation or other constating documents to execute
indemnities by such sole authorized signatory and if this Indemnity is not
executed under seal by the Indemnifier, the Indemnifier is authorized by its
articles of incorporation or other constating documents to execute indemnities
without a seal.
S. Wherever in this Indemnity reference is made to either the Landlord or the
Tenant, the reference is deemed to apply also to the heirs, executors,
administrators, successors and assigns of the Landlord and the heirs, executors,
administrators, permitted successors, and permitted assigns of the Tenant. Any
assignment by the Landlord of any of its interests in the Lease operates
automatically as an assignment to such assignee of the benefit of this
Indemnity.
IN WITNESS WHEREOF the Landlord and the Indemnifier have signed and sealed this
Indemnity.
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SIGNED, SEALED AND DELIVERED in
the presence of: ) PACIFIC CENTRE LEASEHOLDS LIMITED
)
)
) Per: ---------------------------
) Authorized Signatory
)
)
) Per: ---------------------------
) Authorized Signatory
)
) (Indemnifier)
) SIDEWARE SYSTEMS INC.
)
)
) Per: ---------------------------
) Authorized Signatory
)
)
) Per: ---------------------------
) Authorized Signatory
)
)
) (Indemnifier)
) BRAINTECH, INC.
Per: ---------------------------
Authorized Signatory
Per: ---------------------------
Authorized Signatory
) I/We have authority to bind the
) corporation.
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