Exhibit 10.39
MODIFICATION AND PARTIAL SURRENDER OF LEASE
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THIS MODIFICATION AND PARTIAL SURRENDER made as of June 18, 2002
BETWEEN:
INFOWAVE SOFTWARE, INC.
000 - 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, X.X. X0X 0X0
(the "Tenant")
AND:
TONKO REALTY ADVISORS (B.C.) LTD. as Agent of the Owners
(formerly known as Tonko-Novam Management Ltd. and Tonko Development
(B.C.) Ltd.)
000 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
(the "Landlord")
WHEREAS:
A. Pursuant to that certain Indenture of Lease dated June 1, 2000 as partially
surrendered January 9, 2002 (the "Lease") the Landlord did demise and lease
unto the Tenant the premises known as Suites 101, 103, 186, 188, and 190
and comprising 8,515 square feet in the building located at 0000 Xxxxxxxx
Xxxxxxx in Burnaby, B.C. (the "Leased Premises"), shown as outlined in
black on the sketch plan attached as Schedule "A" hereto and being part of
those lands and premises situate, lying and being in the City of Burnaby in
the Province of British Columbia and more particularly known and described
as:
Xxx 00 "X"
xxxxxx firstly: the west 150 feet, secondly:
part now road on statutory right of way Plan 4957
District Xxx 000, Xxxxx 0 XXX Xxxx 0000
(xxx "Lands");
B. The Leased Premises demised by the Lease are vested in the Tenant for the
unexpired residue of the Term subject to a sublease of a portion of the
Leased Premises to Strydent Software Inc. under a sublease dated August 31,
2000 (the "Sublease");
C. The Tenant and the Landlord have agreed to amend certain terms of the Lease
as herein described;
D. At the request of the Tenant, the Landlord has agreed to accept a surrender
of a portion of the Lease, such portion being of the part of the Leased
Premises shown cross-hatched on Schedule "A" attached hereto and forming
part hereof (the "Surrendered Portion of the Leased Premises"), which
Surrendered Portion of the Leased Premises is subject to the Sublease, such
partial surrender to be made as at 12:01 a.m. on July 1, 2002 (the
"Effective Time") and on the terms as herein contained;
NOW THEREFORE THIS MODIFICATION AND PARTIAL SURRENDER WITNESSES that in
consideration of the premises and the sum of $10.00 and other good and valuable
consideration (the receipt and sufficiency whereof the parties hereby
acknowledge), the parties covenant and agree as follows:
1. The Tenant as the person presently entitled to occupy the Leased Premises
hereby assigns and surrenders to the Landlord effective at the Effective
Time, the Surrendered Portion of the Leased Premises subject to the
Sublease. The Tenant, for itself, its successors and assigns, hereby
covenants with the Landlord that the Tenant will deliver up possession of
the Surrendered Portion of the Leased Premises to the Landlord at the
Effective Time subject to the rights of the subtenant under the Sublease,
and that the Tenant has good right, full power and authority to surrender
the Surrendered Portion of the Leased Premises subject to the rights of the
subtenant pursuant to the Sublease.
2. The Tenant represents and warrants to the Landlord, as representations and
warranties that are true on the date of execution of this Agreement and
shall survive the completion of this surrender, that:
(a) the Sublease is in full force and effect, unamended;
(b) there is no default on the part of the sublandlord or the subtenant
under the Sublease;
(c) all the subsisting rights and all subsisting obligations of the
subtenant and the sublandlord, respectively, under the Sublease
including without limitation those related to tenant
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inducements, rental abatements or concessions, are as contained in the
Sublease presented to the Landlord by the Tenant and there are no
other agreements between the subtenant and the sublandlord under the
Sublease now in effect pertaining to such rights and obligations;
(d) the Sublease has been validly authorized, executed and delivered;
(e) the Sublease has not been cancelled, surrendered, modified, assigned
or renewed and is in full force and effect and the subtenant has
accepted possession, and is in occupation of the leased premises as
defined in the Sublease and is paying rent upon the terms of the
Sublease;
(f) rent has been paid under the Sublease to date and has not been prepaid
except as provided in the Sublease and the fixed basic rent at present
payable pursuant to the Sublease is $3,624.00 per month;
(g) the Tenant will not amend, modify or surrender the Sublease or accept
any prepayment of rent other than the current month's rent without the
prior written consent of the Landlord;
(h) there is no existing default by either the sublandlord or the
subtenant under the Sublease;
(i) there are no set-offs, defences or counterclaims by the subtenant in
respect of the payment of rent or the enforcement of the obligations
to be performed by the sublandlord under the Sublease nor any
agreement between the subtenant and the sublandlord abating or
deferring any past, present or future rent except as set out in the
Sublease;
(j) no litigation or governmental or municipal proceeding has been
commenced or is pending or threatened by or against the sublandlord
with respect to the subleased premises and the subtenant is in
compliance with all applicable laws with respect to its occupancy of
the subleased premises;
(k) all improvements to be provided by the sublandlord under the Sublease
or under any antecedent agreement relating thereto, have been
completed to the satisfaction of the subtenant and all allowances on
account of such subtenant's improvements or any tenant inducements in
kind or money, including rental abatements or concessions, have been
paid in full by the sublandlord; and
(l) the deposit including all interest thereon that accrues to the benefit
of the subtenant, now held by the sublandlord, is $ - and the same
shall be paid by the Tenant to the Landlord concurrently with the
execution of this Modification and Partial Surrender.
3. The Landlord hereby accepts the surrender by the Tenant of the Surrendered
Portion of the Leased Premises as aforesaid and hereby releases the Tenant
from any liability, claim and demand in respect of all or any of the
covenants contained in or otherwise arising under the Lease with respect to
the Surrendered Portion of the Leased Premises from the Effective Time,
provided that the Tenant has delivered possession of the Surrendered
Portion of the Leased Premises to the Landlord on or before the Effective
Time in accordance with the terms of this Modification and Partial
Surrender, and subject to the survival of the representations, warranties
and covenants of the Subtenant herein contained, which are not released and
which shall remain in full force and effect.
4. The Tenant hereby releases the Landlord from any and all liability, claim
and demand in respect of all or any of the covenants contained in or
otherwise arising under the Lease with respect to the Surrendered Portion
of the Leased Premises, excluding any liability, claim or demand in respect
of the obligations as sub-landlord with respect to the Sublease arising
from and including the Effective Time.
5. The Lease is hereby further amended as follows:
(a) Section 1.01(k) "Renewal Terms" is hereby deleted in its entirety.
(b) Section 1.01(l) "Allowed Number of Vehicle(s)" is amended to be:
"Eight (8) random stalls in the secured parkade and if available, and
if requested by the Tenant, additional parking rights shall be
provided on a month to month basis, subject to termination with thirty
(30) days' written notice by either party".
(c) Section 1.01(m) "Parking Rates" is amended to be: "$40.00 per stall
per month"
(d) Landlord's Option to Terminate. The Landlord shall be entitled to
terminate the Lease, as modified by this Modification and Partial
Surrender, and all of the Tenant's other leases of premises in the
Building (but not less than all of the Tenant's leases) upon one
hundred eighty (180) days' prior written notice to the Tenant and upon
payment to the Tenant of a termination fee equal to three
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(3) months of Basic Rent (as defined in each of the Tenant's leases)
as full compensation for all costs, damages, nuisance and discomfort
which the Tenant my incur or suffer.
(e) Tenant's Option to Surrender. The Tenant shall be entitled to fully or
partially surrender the Lease, as modified by this Modification and
Partial Surrender, and the remaining 3,683 square feet of the Leased
Premises (the "Remaining Leased Premises") or any part thereof,
without penalty, under the following circumstances:
o a replacement tenant is willing to enter into a lease with the
Landlord for the surrendered premises at conditions that the
Landlord, acting reasonably, considers "at market"; and
o the replacement tenant offers, in the reasonable opinion of the
Landlord, an adequate covenant; and
o the demising of the Remaining Leased Premises required to
accommodate the replacement tenant is, in the sole opinion of the
Landlord, rational both for the premises being demised out and
for the balance of the Remaining Leased Premises; and
o the proposed lease term is at least three (3) years unless the
replacement tenant is Styrdent Software Inc.
6. The Lease, as modified by this Modification and Partial Surrender of Lease,
shall remain in full force and effect, and time remains of the essence
thereof.
7. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
8. The parties agree to do and execute, or cause to made, done or executed,
all such further and other lawful acts, deeds, things, devices, conveyances
and assurances in law or equity whatsoever from time to time and at all
times upon every reasonable request of the other to give effect to the
intent of this Agreement.
9. Time is expressly declared to be of the essence of this Agreement and of
each and every term, covenant, agreement, condition and provision hereof or
arising hereunder and observance and performance thereof.
10. All notices, demands and other writings (hereinafter called a "Notice")
contemplated to be given, made or sent, by either party to the other shall
be in writing addressed to the other at its address hereinbefore given, or
if any party has notified the other in writing of a change of its address,
at the last address of which notice has been given pursuant to this clause.
Any Notice shall be deemed to have been received on the date of actual
delivery if delivered, or the date of receipt at such address if mailed, or
the date of confirmation of transmission if sent by facsimile transmission.
No other method of delivery or giving of written notice or demand is
precluded by this clause.
11. The waiving by a party hereto of a breach of an obligation hereunder of the
other party will not be considered to be a waiver of a subsequent breach of
that obligation or another obligation. No obligation in this Agreement will
be considered to have been waived by a party unless the waiver is in
writing signed by the party waiving the same.
12. Words and phrases capitalized in this Agreement and defined in the Lease
shall have the meanings ascribed thereto in the Lease.
IN WITNESS WHEREOF the parties hereto have executed this Modification and
Partial Surrender as of the day, month and year first above written.
LANDLORD: TONKO REALTY ADVISORS (B.C.) LTD. as Agent of the Owners
____________________________________
By: Xxxxxx Altow, General Manager
TENANT: INFOWAVE SOFTWARE, INC.
By:_________________________________
Xxxxxx Xxxxxx, CFO
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Print Name and Position
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SCHEDULE "A"
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FLOOR PLAN
[GRAPHIC OMITTED]
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