EXHIBIT 10.24
SECOND AMENDMENT TO RESTATED OFFER TO LEASE
THIS AGREEMENT made as of the 18th day of May, 2001.
BETWEEN:
PCI PROPERTIES CORP., a company incorporated under the laws of the
Province of British Columbia and having an office at 1700 - 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Landlord")
AND:
PIVOTAL CORPORATION, a company incorporated under the laws of the
Province of British Columbia and having an office at 300 - 224 West
Esplanade, North Vancouver, British Columbia, V7M 3M6
(the "Tenant")
WHEREAS:
A. Pursuant to a restated offer to lease made the 28th day of July, 2000 and a
first amendment to restated offer to lease made as of the 16th day of
October, 2000 between the parties (together, the "Offer to Lease"), the
Landlord agreed to lease to the Tenant, and the Tenant agreed to lease from
the Landlord, the Premises in the Building (currently unbuilt) on the terms
and conditions therein;
B. In connection with the Offer to Lease, the parties executed a definitive
office lease agreement made and entered into the 28th day of December, 2000
(the "Lease");
C. The parties have agreed to changes to specific provisions in the Offer to
Lease and have agreed to amend the Offer to Lease on the terms and
conditions in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained the parties hereto agree as follows:
1. Definitions
Unless the context otherwise requires, terms which are used in this
Agreement (including the Recitals), and not otherwise defined herein,
have the meanings given to them by the Offer to Lease.
2. Amendments to Offer to Lease
The Offer to Lease is hereby amended as follows:
(a) delete clause 11(a)(vii) in its entirety and substitute the following
therefor:
""Plans and Specifications" means the preliminary plans and
specifications for the Base Building Works (excluding the
Leasehold Improvements) in the form of the Rendering and Schedule
"B" hereto, all as supplemented or amended from time to time as
agreed between the Landlord and the Tenant's Consultant acting
reasonably or as supplemented or amended from time to time in
accordance with this Offer to Lease.";
(b) in the last sentence of clause 9,change "Exhibit "G"" to "Exhibit "F"";
(c) delete clause 18 in its entirety and substitute the following therefor:
"(a) Not later than December 28, 2000, the parties will execute
in duplicate the Lease in the form attached hereto as
Schedule "D" (and thereafter all references to the Lease in
this Offer to Lease shall mean the executed form) and
deliver all executed copies to Xxxxxxx Xxxxx, Business
Lawyers, to hold in trust to be delivered pursuant to
paragraph (c) below, unless notice is received from the
Landlord or the Tenant, as the case may be, that it has
terminated this Offer to Lease pursuant to clauses 26 or 27,
provided that the Landlord may deliver to any proposed
lender or purchaser of the Site a certified true copy of the
Lease on a confidential basis, pursuant to a confidentiality
agreement, a copy of which is provided to the Tenant.
(b) In the event this Offer to Lease and the Lease is terminated
in accordance with clauses 26 or 27 of this Offer to Lease
then, in addition to any other provisions of this Offer to
Lease, all executed copies of the Lease will be returned to
the Tenant for destruction.
(c) In the event the upset dates described in clauses 26 and 27
have expired and this transaction has not been terminated
pursuant to clauses 26 and 27, one copy of the Lease will be
delivered to each of Landlord and Tenant on the date of
Delivery of Possession of the Premises to the Tenant, and,
thereupon the Lease shall be in full force and effect
provided that nothing herein shall limit the terms of clause
28 of this Offer to Lease pursuant to which the terms and
conditions of section 6.3, section 20.1(d) and Exhibit "E"
of the Lease are incorporated by reference into this Offer
to Lease and are in full force and effect on the date
hereof.
(d) The parties agree that at any time, upon the request of the
other party, to re-execute and re-deliver the Lease modified
and updated to reflect the following:
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(i) the actual size of the Premises (as defined in the Lease) as
constructed (section 2.1 of the Lease);
(ii) the actual Commencement Date (Article 5 of the Lease); and
(iii)such other amendments and modifications as the parties, acting
reasonably, shall agree to from time to time;
provided that if the parties cannot agree to such changes within ten
(10) days of such request, such changes shall be determined by
arbitration pursuant to Exhibit "F" of the Lease. If either the
Landlord or the Tenant refuses or neglects to re-execute the Lease,
the Landlord and the Tenant agree that they are nonetheless bound by
the terms of the Lease as agreed by the parties or as determined by
arbitration as aforesaid.";
(d) in the last sentence of clause 23, change "Exhibit "G"" to "Exhibit "F"";
(e) delete clause 28 in its entirety and substitute the following therefor:
"28. The Tenant has provided a letter of credit issued to the
Landlord in the amount of $1,000,000.00 to beheld upon the
terms and conditions contained in section 6.3 of the Lease
(the "Security Deposit"). Not later than July 3, 2001, the
Tenant covenants and agrees to increase the Security Deposit
to $3,750,000.00. Thereafter, the Tenant covenants and
agrees to increase the Security Deposit to an amount equal
to two (2) years' gross rent (for example, the Security
Deposit would be $7,855,000.00 if the gross rent was $62.84
per square foot and the Rental Area of the Premises was
125,000 square feet) on or before the Commencement Date. The
terms of Exhibit "E" attached to the Lease, as well as the
provision of section 6.3 of the Lease requiring that cash
proceeds be held in trust in interest-bearing certificates
shall apply to all of the security provided under this
clause, mutatis mutandis. Notwithstanding that the executed
copies of the Lease are held in trust pursuant to clause 18
or anything else to the contrary in this Offer to Lease, the
Lease or at law, the parties acknowledge and agree that the
terms and conditions of section 6.3, subsection 20.1(d), and
Exhibit "E" of the Lease are in full force and effect as
from the date of this Offer to Lease as if such terms and
conditions were set out in full and incorporated in this
Offer to Lease as terms and conditions hereof and references
in the letter of credit to such terms and conditions of the
Lease shall also refer to such terms and conditions as
incorporated in this Offer to Lease."; and
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(f) delete clause 32 in its entirety and substitute the following
therefor:
"The Landlord agrees with the Tenant that on or before the
Commencement Date, it shall have received, to the extent it
is lawfully entitled to same after complying, or causing to
be complied with, the terms and conditions of the following
described encumbrances, the written agreement or written
assurance of the City of Vancouver to discharge from title
to the Site those encumbrances described in Schedule "E"
(Part 1) hereto, provided that the Landlord and the Tenant
acknowledge and agree that the failure of the Landlord to
obtain such agreement or assurance shall not delay or extend
the Commencement Date and the Lease shall remain in full
force and effect. Furthermore, the Landlord agrees with the
Tenant to indemnify and save harmless the Tenant for any
claims, costs or liabilities that the Tenant may incur with
respect to the Landlord failing to pay any financial
obligations or comply with any conditions or requirements
contained in those encumbrances described in Schedule "E"
(Part 2) hereto.";
(g) delete the second sentence of clause 35 and substitute the following
therefor:
"In the event of any inconsistency between the provisions of
this Offer to Lease and the provisions of the Lease or any
difference in language covering the same subject matter, the
provisions of the Lease shall govern (notwithstanding that
the executed copies of the Lease are held in trust pursuant
to clause 18), provided that clause 11(m) of this Offer to
Lease shall govern with respect to all matters arising
during the construction of the Building."
3. Effect on Offer to Lease
(a) This Agreement is supplemental to and shall be read with and deemed to
be part of the Offer to Lease and the Offer to Lease shall from the
date of this Agreement be read in conjunction with this Agreement.
(b) This Agreement shall henceforth have effect so far as practical as
though all of the provisions of the Offer to Lease and this Agreement
were, as appropriate, contained in one instrument.
(c) All of the provisions of the Offer to Lease, except only insofar as
the same may be consistent with the express provisions of this
Agreement, shall apply to this Agreement.
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(d) The Offer to Lease as changed, altered, amended, modified and
supplemented by this Agreement shall be and continue in full force and
effect and be binding upon the parties and is hereby confirmed in all
respects, and for the purposes of the Lease reference to the term
"Offer" therein shall be deemed to refer to the Offer to Lease as
amended hereby and as further amended and modified from time to time.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed as
of the day and year first above written.
PCI PROPERTIES CORP.
Per: _____________________
Authorized Signatory
PIVOTAL CORPORATION
Per: _____________________
Authorized Signatory
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