Exhibit 10.38
SURRENDER OF LEASE
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THIS SURRENDER AND RELEASE 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 April 26, 2000, as
amended August 25, 2000 (the "Lease") the Landlord did demise and lease
unto the Tenant the premises known as Suites 200, 226, and 253 and
comprising 30,276 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 plans attached as Schedules "A", "A1" and "A2" to the
Lease 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 Tenant wishes to surrender the Lease and the Leased Premises to the
Landlord and the Landlord has agreed to accept the same, all on the terms
and conditions hereinafter set out;
C. The rents, covenants and conditions on the part of the Tenant reserved and
contained in the Lease will have been paid, observed and performed up to
midnight, June 30, 2002 (the "Effective Date") and the Tenant has agreed
with the Landlord that the Lease and the Leased Premises shall be
surrendered as of the Effective Date;
NOW THEREFORE THIS SURRENDER WITNESSES that in consideration of:
(i) the premises;
(ii) the sum of One Hundred Twenty Five Thousand Dollars ($125,000.00) plus
G.S.T to be paid by the Tenant to the Landlord as hereinafter
provided;
(iii)the Tenant entering into a new lease commencing July 1, 2002 with the
Landlord for 12,416 square feet at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxx,
X.X.; and
(iv) the Tenant issuing to the beneficial owners of the Building, Novam
Projects Ltd. and Pyxis Real Estate Equities Inc. (the "Beneficial
Owners"), warrants to purchase up to 50,000 of common shares for each
of the Beneficial Owners at an exercise price of $0.20 per share.
the parties hereto agree as follows:
1. The Tenant, as the party presently entitled to the residue of the term of
years granted by the Lease, hereby assigns and surrenders to the Landlord
on the Effective Date, the Leased Premises and the Lease together with all
rights of renewal therein contained to the extent that the term granted in
the Lease may merge and be extinguished in the reversion expectant
therefrom.
2. The Tenant, for itself and its successors and assigns, hereby covenants
with the Landlord that as of the Effective Date:
a) it shall have good right, full power and authority to assign and
surrender the Leased Premises and the Lease;
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b) it shall pay and perform the consideration for this Surrender as
provided in this Surrender on or before July 1, 2002, but subject to
the extension of time for provision of the warrants as provided in
clause 5 hereunder;
c) it has not, at any time, subleased, pledged, hypothecated, assigned or
encumbered the Lease or in any other manner encumbered the Leased
Premises and Tenant agrees that it will not take any of the foregoing
actions prior to the Effective Date; and
d) the rents, covenants and conditions on the part of the Tenant reserved
and contained in the Lease shall be paid, observed and performed up to
and including the Effective Date.
3. The Tenant shall, on or before the Effective Date, remove all furniture and
tenant's fixtures from the Leased Premises and in so doing shall cause no
damage to the Leased Premises or the Building. Such removal shall be
carried out pursuant to any Rules and Regulations attached to and forming
part of the Lease or issued pursuant thereto.
4. The Tenant shall pay the consideration of $125,000 by a certified cheque
payable to Xxxxx X Xxxx, solicitor for the Landlord, in trust, on or before
the date of execution of this Surrender, and to be delivered on the trust
condition that the said sum be paid to the Landlord on July 1, 2002.
5. The warrants to be issued by the Tenant to the Beneficial Owners as part of
the consideration for the Landlord accepting this surrender will be
non-transferable and will be immediately exercisable to purchase common
shares; however, the common shares to be issued upon the exercise of the
warrants will be subject to restrictions on resale until the date which is
four months from the date of issue of the warrants. The Tenant's obligation
to issue the warrants will be subject to the Beneficial Owners providing
the Tenant with: (a) a duly completed and executed Accredited Investor
Questionnaire; (b) a duly completed Toronto Stock Exchange Questionnaire
("TSX); and (c) any other documents required by securities regulatory
authorities or the rules and policies of the TSX. The Tenant shall issue
the warrants within a reasonable time of the Beneficial Owners providing
the Tenant with the said documents and in any event by July 5, 2002;
6. Wherever the singular or plural is used in this Surrender, the same shall
be construed to mean and include the plural, the feminine or the body
politic as the context may require.
7. This Agreement shall enure to the benefit and be binding upon the parties
hereto and their respective heirs and assigns.
8. Save as aforesaid, the Landlord from and after the Effective Date, hereby
releases the Tenant from all liability, claims and demands in respect of
any of the covenants contained in or otherwise arising under the Lease from
and after the Effective Date.
IN WITNESS WHEREOF the parties hereto have executed this Surrender and Release
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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