BC-Vancouver-343 Railway Street Lease - 343 Railway Investments Ltd. and Butterfly Software Inc.
THIS INDENTURE made the 20th day of April, 2000.
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.
#302-343 Railway Street
Vancouver, BC V6A 1A4
(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 second floor known as suite #202 situated upon Lot E, Block
39A, District Lot 196, Land District 36, Plan 34600 and addressed as 343 Railway
Street, Vancouver, BC with approximately 2,858 square feet of office/production
space as shown outlined in red on the floor plan attached as Schedule A.
Excluding the small raised area approximately outlined in black on the floor
plan attached as Schedule A.
(hereinafter called the "PREMISES")
FROM the 1st day of April, 2000.
FOR THE TERM of twenty six (26) months,
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YIELDING therefore commencing the 1st day of April, 2000 to and including the
1st day of May, 2000 the Rent of THIRTY ONE THOUSAND AND FIVE HUNDRED ($31,500)
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 FOUR HUNDRED SEVENTY SEVEN ($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 April 1st, 2000 (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. The Lessee shall also tender eleven (11) post
dated cheques commencing August 1st, 2000 in the amount of TWO THOUSAND FOUR
HUNDRED AND SEVEN ($2,407.50) DOLLARS AND FIFTY CENTS.
Provided the Lessee is not in default under any of the terms of this lease the
Lessor agrees to waive the requirement for rent for the months of April, 2000,
May, 2000 and June, 2000.
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 2000 and utilities (light and electrical -BC Hydro)
The calculation for the increase in Property Tax over the base year will be as
follows:
(Current Years Ppty Tax - 2000 Property Tax) X sq. ft. of unit X Mos. Occupancy
within Calendar Year
--------------- -----------------------------------
32,373 sq. ft. 12 Months
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;
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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 Software Production & Development
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 except for pictures, charts and other
similar items;
<PAGE>
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 should the Lessee wish to connect the subject space to unit 302 by way of an
internal stairway, such stairway is to be approved by the Lessor in writing
prior to the installation. The Lessee is to ensure that the stairway and any
resulting changes are constructed to meet all current city permit, fire and
building codes including but not limited to sprinkler requirements. The stairway
is to be located in the extreme south west corner of the subject premises and is
not to interfere with the small raised area approximately outlined in black on
the floor plan attached as Schedule A. At the expense of the Lessee, the Lessor
may engage an outside consultant to confirm that the work meets the city code
and fire requirements. The stairway 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 or use 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. Upon the written request by the Lessor the Lessee
will remove the stairway and return the premises to its original state;
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 undertaken 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 with
twenty four (24) hours notice by the Lessor;
<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 the Lessee covenants and agrees with the Lessor that in the event of the
Lessor desiring at any time during the currency of this Lease, to demolish or
substantially renovate the building, the Lessee will, upon receiving six (6)
months' notice in writing of the Lessor's intention to do so, surrender to the
Lessor this Lease and the remainder of the term, if any, then yet to come and
unexpired and all further right of renewal, if any, under this Lease, as and
from the date mentioned in such notice, and will, subject nevertheless to the
other provisions herein contained, thereupon vacate the Premises and yield up to
the Lessor the peaceable possession thereof. It is understood and agreed that
this Lease will terminate upon the expiration of the said six (6) months' notice
period, and that such notice period need not expire at the end of any year or at
the end of any month, and in the event of the day fixed for termination of this
Lease expiring on the same day other than the last day of a month, the basic
rent and other charges payable by the Lessee under the Lease shall be
apportioned according to the date of termination.
AND IT IS HEREBY AGREED:
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;
<PAGE>
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;
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 shall not be responsible for any death or injury to the Lessee
or others on the leased premises.
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 and Lessee 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.
<PAGE>
THE LESSOR COVENANTS WITH THE LESSEE for quiet enjoyment.
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/ Collin Ferguson
Collin Ferguson
Authorized Signatory (Print Name)