BC-Vancouver-302-343 Railway Street Lease - 343 Railway Investments Ltd. and Butterfly Software Inc.
THIS INDENTURE made the 30th day of April, 1999. IN PURSUANCE OF THE "LAND TRANSFER FORM ACT" BETWEEN: 343 RAILWAY INVESTMENTS LTD. 1120-1040 West Georgia Street Vancouver, BC V6E 4H1 (hereinafter called the Lessor of the "FIRST PART") AND: BUTTERFLY SOFTWARE INC. 415-11948 207 Street Maple Ridge, BC V2X 1X7 (hereinafter called the Lessee of the "SECOND PART") WITNESSETH that in consideration of the Rents, Covenants, Conditions and Agreements hereinafter respectively reserved and contained, the said Lessor doth demise and lease unto the said Lessee, ALL AND SINGULAR those certain lands, premises and building situated in the City of Vancouver in the Province of British Columbia and known and described as: That portion of the third floor known as suite #302 situated upon Lot E, Block 39A, District Lot 196, Land District 36, Plan 4600 and addressed as Suite 302-343 Railway Street, Vancouver, BC with approximately 3,026 square feet of production space as shown outlined in red on the floor plan attached as Schedule A. (hereinafter called the "PREMISES") FROM the 1st day of June, 1999. FOR THE TERM of three (3) years, <PAGE> YIELDING therefore commencing the 1st day of June, 1999 to and including the 1st day of May, 2000 the Rent of TWENTY SEVEN THOUSAND ($27,000) DOLLARS plus GST payable at the office of the Lessor monthly in advance by postdated cheques without deduction on the 1st day of each and every month being TWO THOUSAND TWO HUNDRED FIFTY($2,250) DOLLARS plus GST. YIELDING therefore commencing the 1st day of June, 2000 to and including the 1st day of May, 2001 the RENT OF TWENTY SEVEN THOUSAND EIGHT HUNDRED AND TEN DOLLARS ($27,810.00) plus GST payable at the office of the Lessor monthly in advance by postdated cheques without deduction on the 1st day of each and every month being TWO THOUSAND THREE HUNDRED SEVENTEEN DOLLARS AND FIFTY CENTS ($2,317.50) plus GST. YIELDING therefore commencing the 1st day of June, 2001 to and including the 1st day of May, 2002 the RENT OF TWENTY EIGHT THOUSAND SIX HUNDRED AND FORTY FOUR DOLLARS AND THIRTY CENTS ($28, 644.30) plus GST payable at the office of the Lessor monthly in advance by postdated cheques without deduction on the 1st day of each and every month being TWO THOUSAND THREE HUNDRED AND EIGHTY SEVEN DOLLARS ($2,387.00) plus GST. The Lessee shall have occupancy of the Premises on June 1, 1999 (the "Occupancy Date"). The Lessor's work as set out in Schedule "B" attached hereto shall be substantially complete as of the Occupancy Date. Upon acceptance of the lease, the Lessee shall tender a deposit cheque in the amount of FOUR THOUSAND SIX HUNDRED AND THIRTY SEVEN ($4,637.00) DOLLARS plus GST which is to be credited to payment for rent, plus GST, due for the first and last months of the lease term. THAT THE SAID LESSEE COVENANTS WITH THE SAID LESSOR: To pay rent monthly in advance by post dated cheques, on the 1st day of each month, and to pay any business transfer tax, value added tax, sales tax, Goods and Services Tax and the Lessee's proportionate share of Property Taxes over the base year of 1999 and utilities (light and electrical -BC Hydro) AND to repair, reasonable wear and tear and damage by fire, lightning, tempest and earthquake excepted; AND to give to the Lessor or his agent immediate notice of any defect in water, gas or other pipes or fixtures, heating apparatus, elevator, hoist, machinery or telephone, electric or other wires or fixtures; AND that the Lessor may enter and view state of repair and that the Lessee will repair according to notice reasonable wear and tear and damage by fire, lightning, tempest and earthquake excepted; <PAGE> AND that the Lessee will leave the premises in good repair, reasonable wear and tear and damage by fire, lightning, tempest and earthquake excepted; AND will keep and leave whole and in good order all water, gas and electric fixtures, glass, pipes, faucets, locks, fastenings, hinges, window shades, sash cords, heating and cooling apparatus under the control of and used by the Lessee and will keep all brass, copper and other metals and all windows, in on or attached to the premises, cleaned and polished; AND will not assign without leave; AND will not sublet without leave; AND will not use the premises nor allow the premises to be used for any other purpose than that for which the premises are hereby leased, namely: for production of internet software AND will not carry on nor do, nor allow to be carried on or done on the premises, any sales by auction, nor any work, business, occupation, act or thing whatever which may be or become a nuisance or annoyance to the Lessor, the public or any other occupant of the said building or which may increase the hazard of fire or liability of any kind or which may increase the premium rate of insurance against loss by fire or liability upon the said building or the premises or invalidate any policy of insurance of any kind upon or in respect of same which may cause or result in excessive use or waste or water or increase the amount of water rates payable in respect of the said building or the premises; AND will not drive nails or screws into nor drill into nor cut, mark nor in any way deface any part of the premises; AND will not make any alterations in the structure, plan or partitioning of the premises nor install any plumbing, piping, wiring or heating apparatus without the written permission of the Lessor or his agents first had and obtained and at the end or sooner determination of the said term will restore the premises to the present condition if called upon to do so by the Lessor but otherwise all repairs, alterations, installations and additions made by the Lessee upon the premises, except gas and electric fixtures and movable business fixtures, shall be the property of the Lessor and shall be considered in all respects as part of the premises; AND will indemnify and save harmless the Lessor from and against any and all manner of claims for liens for wages or materials, or for damages to persons or property caused during the making of or in connection with any repairs, alterations, installations and additions which the Lessee shall make or cause to be made on the premises; AND will allow the Lessor to post and will keep posted on the premises any notice that the Lessor may desire to post under the provisions to the Repairers Lien Act; AND will erect, place, use or keep in or upon the premises only such shades, window blinds, awnings, projections, signs, advertisements, lettering devices, notices, painting or decoration as are first approved in writing by the Lessor, and upon the expiration or determination of this Lease will remove the same if required to do so by the Lessor; <PAGE> AND will indemnify and save harmless the Lessor from and against any and all manner of actions or causes of action damages, loss, costs or expenses which he may sustain, incur or be put to by reason of any advertising signs now existing or which may hereafter be erected by the Lessee upon, over, projecting from or above the said building or the premises and will pay the premiums charged upon any bond of indemnity or liability insurance policy in respect of such signs issued upon the demand of Civic, Municipal or other authorities, provided always that the Lessor shall from time to time and at all times hereafter, be at liberty to examine the said signs, and that the Lessee will repair or strengthen same upon notice from the Lessor, and if the Lessee shall fail to comply with such notice, the Lessor shall be at liberty to repair or strengthen the said signs at the costs, charges and expenses of so doing shall be forthwith paid by the Lessee to the Lessor, but giving of such notice and the undertaking of such repairs or strengthening by the Lessor shall not be deemed an acknowledgement or admission of any liability or responsibility on the part of the Lessor; AND will not cover nor obstruct the glass doors, partitions, transoms, windows, lights and skylights which reflect or admit light into any passage way or other place in the said building; AND will not bring into or upon the premises any safe, motor, machinery or other heavy articles without the consent of the Lessor in writing first had and obtained, and will immediately make good any damage done to the any part of the building or premises by bringing in or taking away the same; AND will provide receptacles for refuse and rubbish of all kinds, and will attend to the removal of the same from the premises at regular intervals, and will not keep nor leave any boxes, packing material or rubbish of any kind in or near the passages, yards and alleys adjacent to the premises; AND will observe, obey and conform to and cause his employees to observe, obey and conform to all rules and regulations from time to time made by the Lessor with regard to the management, use or occupation of the said building and the premises; AND will comply promptly at his own expense with all laws, ordinances, regulations, requirements and recommendations of any and all Dominion, Provincial, Civic, Municipal and other authorities, or Association of Fire Insurance Underwriters or Agents and all notices in pursuance of same whether served upon the Lessor or the Lessee, and will indemnify and save harmless the Lessor from and against any and all manner of actions or causes of action, damages, lost costs or expenses which he may sustain, incur or be put to by reason of any neglect of same or noncompliance therewith or by reason of any defect, deficiency, disrepair, depreciation, damage or change in or to the premises, or any injury or damage to any person nor to any goods and chattels contained in, upon or about the premises, however caused; AND will allow notices "For Sale" or "To Let" to be put and remain on the premises in a conspicuous position for at least sixty (60) days prior to the expiration of the Lease and will allow Prospective purchasers or tenants to enter and inspect the premises on week days during the said sixty (60) days; <PAGE> AND in the event that rent is not paid to the Lessor or his agent on the1st day of any month as stipulated in this Lease, a daily charge for liquidated damages shall be paid by the Lessee for each day that the rent is overdue, such daily charge to be determined by the Lessor and will be paid to the Lessor within ten (10) days of notification by the Lessor to the Lessee of the amount owing under this clause; AN amount equal to all professional fees incurred by the Lessor in the enforcement of the Lessee's covenants under this Lease in respect of the recovery of any insurance claims on behalf of the Lessee and all costs incurred or sums paid by the Lessor or any tenant or tenants or other occupants of the entire premises by reason of any breach of the Lessee's covenants to be performed and observed by the Lessee pursuant to the terms of this Lease, to be paid to the Lessor within ten (10) days of notification by the Lessor to the amount owing under this clause; AND at the expiration or sooner determination of this Lease will peaceably surrender and give up possession of the premises without notice from the Lessor, any right to notice to quit or vacate being hereby expressly waived by the Lessee, any law, usage or custom to the contrary notwithstanding; AND IT IS HEREBY AGREED: THAT if the Lessee duly and regularly pays said rent, plus GST and performs each and every of the covenants herein to be performed and observed by the Lessee, the Lessor shall grant to the Lessee upon six (6) months' written notice prior to the expiration of the term, a renewal lease for a term of three (3) years upon the same terms and conditions contained herein, save as to rental, plus GST and this option to renew clause. Rent, plus GST for said renewal term shall be agreed upon between parties and shall be based on the fair market rental, plus GST, for premises of similar size, quality and location at time of renewal, but shall not be less than the rent plus GST, payable during the last year of the term of the Lease. The Lessor and Lessee shall attempt to agree on the fair market rental, plus GST for the renewal term during the three (3) month period immediately preceding the expiry of the initial term. Failing agreement as to the rental rate, plus GST, the rate shall be determined by one arbitrator under the Commercial Arbitration Act of British Columbia. THAT the whole contract and agreement between the parties hereto is set forth herein, that the Lessee has leased the premises after examining the same, that no representations, warranties or conditions have been made other than those expressed or implied herein, and that no agreement collateral hereto shall be binding upon the Lessor unless it be made in writing and signed by the Lessor; THAT no waiver of nor neglect to enforce the right to forfeiture of this Lease or the right of re-entry upon breach of any covenant, condition or agreement herein contained shall be deemed a waiver of such rights upon any subsequent breach of the same or any other covenant, condition or agreement herein contained; THAT any notice to be served hereunder shall be deemed to be sufficiently served on the Lessee if addressed to the Lessee and left on the premises; <PAGE> THAT if the Lessor is unable to deliver possession of the premises at the time of the commencement of the said term, neither the Lessor nor his agents shall be liable for any damage or loss caused thereby, nor shall this Lease be void or voidable, nor the date of expiration of same be changed by reasons thereof but in such event the Lessee shall only be liable for rent at the rate hereby reserved from such time as the Lessor shall be able to deliver possession of the premises; THAT the Lessor shall not be responsible for any defect in or change of conditions affecting the premises, nor for any damage to the premises or to any person or to merchandise, goods, chattels, machinery or equipment contained therein howsoever caused; THAT the Lessor shall not be responsible for or in regard to the sufficiency or insufficiency of any safe or vault used by the Lessee to withstand fire, burglars or thieves, and that the use of such safe or vault is accepted by the Lessee at his own risk and without any recourse whatsoever against the Lessor for or on account of any loss or damage which may occur in any manner whatsoever or to any money/securities/valuables/books/papers or other property which may be placed therein by the Lessee: THAT the Lessor shall not be responsible for any loss, damage, or expense caused by any overflow or leakage of water from any part of the said building, or any adjoining buildings, occasioned by the use, misuse or abuse of water or by the breaking or bursting of any pipes or plumbing fixtures, or in any other manner or by seepage from adjoining lands or premises or any accident or misadventure to or arising from the use and operation of machinery, elevator, heating apparatus, electric wiring and appliance, gas or other pipes and appliances or any fixtures or by reason of any structural defects in the building or premises or by any other matter or thing whatsoever; THAT the Lessor does not warrant that any obligation, service or facility to be performed or provided by it under this lease or under any other agreement with the Lessee will be free from interruption or delay caused or required by maintenance, repairs, renewals, modifications, strikes, riots, insurrections, labour controversies, accidents, fuel shortages, government intervention, Statute, law, force majeure, act of God or other causes beyond the Lessor's reasonable control. During the period of such interruption the Lessor shall be relieved from such obligations, which will not be an eviction or disturbance of the Lessee's enjoyment of the Premises, render the Lessor liable in damages to the Lessee nor relieve the Lessee from its obligations under this lease. THAT in the event of the said building or the premises being condemned in whole or in part because of the unsafe condition thereof, this Lease shall cease and determine upon the date of such condemnation, and the Lessor shall not be responsible for any loss, damages or expenses which the Lessee may suffer or incur by reason of the same; <PAGE> THAT any yard, passage, alley or area connected with the said building is for the use of all occupants of the said building and the Lessee will not obstruct nor hinder the use of same by other occupants of the said building and their employees, agents and customers and that the Lessee will keep clean and sanitary the position of the same situated in the rear of or adjacent to the premises; THAT the sole and exclusive right to use or to lease to others for their use of the roof or exterior side and rear walls of the said building is reserved to and retained by the Lessor; THAT the Lessor shall have the right to any time during the said term to repair, remodel, alter, improve or add to the premises or the whole or any part of the building of which the premises form a part or to change the location of the entrance or entrances to the said building and the premises without compensation or responsibility to the Lessee and for such purposes, if necessary, to enter into, pass through, work upon and attach scaffolds or other temporary structures to the premises, putting the Lessee to no unnecessary inconvenience; THAT any rights or privileges which may accrue or enure to or for the benefit of the Lessor by virtue of any law governing the relations of Landlord and Tenant not specifically mentioned herein and not inconsistent with the terms and conditions hereof and all rights of enforcement of same shall be deemed to be hereby reserved to and claimed by the Lessor; THAT if the Lessor shall suffer or incur any damage, loss or expense or be obliged to make any payment for which the Lessee is liable hereunder by reason of any failure of the Lessee to observe and comply with any of the covenants of the lessee herein contained then the Lessor shall have the right to add the cost or the amount of any such damages, loss, expense or payment to the rent hereby reserved, and any such amounts shall thereupon immediately be due and payable as rent and recoverable in the manner provided by laws for the recovery of rent in arrears; THAT in case the premises or any part thereof shall at any time during the said term be burned down or damaged by fire so as to render the same unfit for the purpose of the Lessee, the rent hereby reserved or a proportionate part thereof according to the nature and extent of the damage sustained, shall be suspended and abated until the premises is rebuilt or made fit for the purpose of the Lessee, or at the option of the Lessor the said term in such case forthwith comes to an end, and the Lessee shall cease to be held liable for payment of rent except such rent as shall have already accrued due, and shall be entitled to be repaid any rent in advance for the balance of the period so paid for in advance; THAT whensoever the Lessor shall be entitled to levy distress against the goods and chattels of the Lessee he may use such force as he may deem necessary for that purpose and for gaining admittance to the premises without being liable to any actions in respect thereof, or for any loss or damage occasioned thereby and the Lessee hereby expressly releases the Lessor from all actions, proceedings, claims or demands whatsoever for or on account of or in respect of any such forcible entry or any loss or damage sustained by the Lessee in connection therewith; <PAGE> THAT in case the Lessee shall become insolvent or bankrupt or make an assignment for the benefit of creditors, or being an incorporated company if proceedings be begun to wind up the said company, or in case the non-payment of rent at the times herein provided, or in case the premises or any part thereof become vacant and unoccupied for a period of thirty (30) days or be used by any other person or persons, or for any other purpose that is hereinbefore provided, without the written consent of the Lessor, this Lease shall, at the option of the Lessor, cease and be void, and the term hereby created expire and be at an end, anything hereinbefore to the contrary notwithstanding, and the then current month's rent and three (3) months' additional rent shall thereupon immediately become due and payable, and the Lessor may re-enter and take possession of the premises as though the Lessee or his servants or other occupant or occupants of the premises were holding over after the expiration of the said term, and the term shall be forfeited and void; THAT if the Lessee shall hold over and the Lessor shall accept rent after the expiration of the said term, the new tenancy thereby created shall be a tenancy from month-to-month and not a tenancy from year-to-year and shall be required to pay 150% of the base rent, together with any additional rent payable hereunder for the period in question; THAT any additional covenants, conditions or agreements set forth in writing and attached hereto whether at the commencement of the said term or any subsequent time and signed or initialed by the parties hereto shall be read and construed together with and as part of this Lease, provided always that when the same shall be at variance with any printed clause in this Lease, such additional covenants, conditions and agreement shall be deemed to supersede such printed clause; THAT all grants, covenants, conditions, provisos, agreements, rights, powers, privileges and liabilities contained herein shall be read and construed as granted to, made and reserved by, imposed upon and undertaken by the parties hereto and their respective heirs, executors, administrators, successors and assigns, and that wherever the singular or the masculine pronoun is used the same shall be construed as meaning the plural or feminine or the body politic or corporate where the circumstances so require and the Lessor may perform any act hereunder in person or by and through an agent; PROVISO FOR RE-ENTRY BY THE LESSOR on non-payment of rent, or non-performance of covenants. The Lessor in pursuance of this proviso shall have the right to break into the premises to obtain possessions thereof and the Lessee hereby waives all claims for damage to or loss of any of the Lessee's property caused by the Lessor in re-entering and taking possession of the premises; and no action taken by the Lessor in pursuance of this proviso whether under the what are generally known as summary proceedings or otherwise shall be deemed to absolve, relieve or discharge the Lessee from liability hereunder; and this proviso shall extend and apply to all covenants whether positive or negative. THE LESSOR COVENANTS WITH THE LESSEE for quiet enjoyment. <PAGE> INWITNESS WHEREOF the parties hereto have hereunto set their hands and seals, the day and year first above written. THE CORPORATE SEAL OF BUTTERFLY SOFTWARE INC. was hereunto affixed in the presence of: /s/ Anis Jessa Anis Jessa Authorized Signatory (Print Name) THE CORPORATE SEAL OF 343 RAILWAY INVESTMENTS LTD. was hereunto affixed in the presence of: /s/ Geoff McLeod Geoff McLeod Authorized Signatory (Print Name) <PAGE> SCHEDULE "B" LANDLORD'S WORK 1. Provide and install grey tone colour carpeting for the entire suite, including the kitchen area, which is of similar quality to Suite 301 (Fashionmart). 2. Provide and install electrical outlets to posts and selected walls as outlined in "Schedule A". 3. Replace bulbs for florescent lights. 4. Provide and install kitchen Cabinet, sink and shower. 5. Fill and paint walls (one coat). 6. Work completed by May 27, 1999. 7. Butterfly to supply coaxial cable to electrician to install at no charge to Butterfly.