EXHIBIT 10.22
THIS RESTATED OFFER TO LEASE made this 28th day of July, 2000, is a restatement
of an offer to lease made as of May 23, 2000 between the parties noted below and
replaces such offer to lease.
________________________________________________________________________________
To: CB Xxxxxxx Xxxxx Limited
#000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xx. Xxxx X. Ayrton and Xx. Xxxxx Xxxxx
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Pivotal Corporation (the "Tenant") of 300 - 000 Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0 hereby offers to lease from PCI Properties Corp. (the
"Landlord") of 1700 - 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X
0X0 the building currently unbuilt but, subject to the terms herein, to be
constructed as a first class office building taking into consideration the
nature and location of the Site (the "Building") on a portion of 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, approximately as shown on the site plan
attached as Schedule "A" (the "Site"), on the following terms and conditions:
1. PREMISES
Approximately one hundred twenty five thousand (125,000) square feet of
rentable area of the Building (the "Premises"). The actual "Rentable
Area" of the Premises will be measured in accordance with Section
2.1(b) of the form of lease attached hereto as Schedule "D" (the
"Lease").
2. TERM
The term of the lease shall be fifteen (15) years (the "Term")
commencing upon that date that is five (5) Business Days after the
Delivery of Possession as defined and described in Section 5.3(a) of
the Lease (the "Commencement Date"), provided that:
(a) the Tenant's Consultant has not caused material delays to the
Project Schedule, in no event shall the Term commence during the
period May 1, 2002 to June 30, 2002 (therefore, if the Delivery
of Possession referred to in the two locations in this clause 2
end during such period, the Commencement Date shall be July 1,
2000); and
(b) if the Landlord's architect, acting reasonably, determines that
the Landlord's Work will be substantially performed prior to
April 1, 2002, then the Landlord may give no less than three (3)
months prior written notice to the Tenant of the expected date of
substantial performance, and if the Landlord's Work has been
substantially performed by April 1, 2002, then the Term shall
commence five (5) Business Days after such date.
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3. RENT
The net annual base rent (the "Rent") shall be as follows:
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Years Rent Per Rentable Approximate Annual Rent Approximate
Square Foot Per Annum Monthly Rent
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1 - 5 $20.00 $2,500,000.00 $208,333.33
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6 - 10 $22.00 $2,750,000.00 $229,166.67
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11 - 15 $24.25 $3,031,250.00 $252,604.17
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plus Goods and Services Tax ("GST"), and shall be paid in advance in
equal monthly instalments, on the first day of each month of the Term
commencing on the Commencement Date without set off or deduction except
as set out herein and subject to the provisions hereof. Upon
determination of the actual Rentable Area of the Premises by the
Landlord's architect, the Rent shall be adjusted accordingly, on the
basis of the Rent being calculated on the above referenced rent per
square foot per annum basis, plus GST. Payments of Rent, plus GST,
shall be adjusted on a per diem basis if the Term commences other than
on the first day of the month or expires other than on the last day of
the month. No Rent shall be charged on the roofdecks and private patio
areas.
4. PROPERTY TAXES AND OPERATING EXPENSES
The Landlord shall be responsible for repairs as provided in the Lease.
The Tenant shall be responsible and pay for its proportionate share of
Taxes and CAM Costs as those terms are described in the Lease. Except
as otherwise provided in the Lease, the Lease shall be net to the
Landlord. The Tenant shall not be responsible for any portion of the
Landlord's income taxes. The Tenant shall also pay for its business
taxes, telephone charges, utilities and janitorial services. For
information purposes only, the Landlord estimates the CAM Costs and
Taxes for 2002 at Eleven Dollars and Forty Two Cents ($11.42) per
square foot per annum. The estimate of Taxes include the Second
Building (as hereinafter defined) expansion land and Taxes while it is
held undeveloped. As part of the consideration for holding the Second
Building expansion off the market for the Tenant, the Tenant will pay
this as part of the holding costs for the Second Building expansion.
Taxes attributable to the Second Building shall be apportioned across
the Second Building upon completion of the Second Building.
5. OPTION TO EXPAND IN THE BUILDING
The Tenant shall have the option to lease all remaining office area of
the Building (the "Building Option Area") by providing written notice
to the Landlord at any time on or before the date which is three (3)
months after the Building Construction Start (as defined in clause 7).
The Building Option Area shall form part of the Premises and be leased
at the same terms as the rest of the Premises except the Rent shall be:
(a) $22.00 per square foot per annum net during years 1 to 5;
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(b) $24.25 per square foot per annum net during years 6 to 10; and
(c) $26.75 per square foot per annum net during years 11 to 15; and
except
for the Xxxxxx and Xxxxxx ground floor commercial space which will be
$25.00 per square foot per annum net and except for parking. There
shall be additional parking added, based on the current City of
Vancouver parking/rentable area ratio, if the floor space ratio in
accordance with the City of Vancouver's applicable bylaw of all
buildings on the Site is greater than 225,000 square feet of rentable
area.
6. OPTION TO TERMINATE
If the Tenant is not then in material default, the Tenant shall have a
one time option to terminate all or any portion of the Premises
(provided such portion shall comprise only complete and contiguous
floors starting from the top floor (and the Tenant, upon the surrender
of the Lease with respect to the top floor shall be deemed to have
automatically surrendered the Lease with respect to the roof decks)
down of the Premises and provided that this option to terminate shall
not apply to any premises leased by the Tenant pursuant to its right of
first refusal to lease in clause 10) at any time after the expiry of
the tenth (10th) year of the Term, so long as the Tenant has provided
nine (9) months' (where the Tenant is terminating at least 25% of the
Rentable Area of the Premises) or six (6) months' (where the Tenant is
terminating less than 25% of the Rentable Area of the Premises), as the
case may be, prior written notice to so terminate after the expiry of
such tenth (10th) year to the Landlord, and the parking allocation to
the Tenant shall be reduced proportionately to reflect the same
proportion of parking stalls to Rentable Area of the Premises as
existed on the Commencement Date, provided that if the Tenant has
exercised its right under clause 8 herein, the right to exercise this
option to terminate shall be rescheduled to any time after the later of
the end of the tenth (10th) year of the Term and the Second Building
Construction Start (defined in clause 7). There will be no penalty or
other consideration whatsoever payable by the Tenant to the Landlord
upon exercise of this right to terminate.
7. SECOND BUILDING - AGREEMENT NOT TO CONSTRUCT
It is the intention of the Landlord that a second building (the "Second
Building") of comparable quality and compatible design may be built on
the Site and comprising a gross area not to exceed 45,000 square feet
with at least 37,000 square feet of rentable area of office area on,
subject to the City of Vancouver's final approval and requirements, not
more than three (3) floors above the ground floor podium and the Second
Building will be located approximately as shown on the site plan
attached as Schedule "A". Subject to clause 8 hereof, the Landlord
covenants and agrees not to commence to construct the Second Building
until construction has started for the Building, defined as the first
date (to be verified by written notice delivered to the Tenant) that
concrete is poured for the footings/foundations to commence
construction of the Building (the "Building Construction Start").
Commencing upon the Building Construction Start, the Tenant shall have
the right to provide written notice for an extension of the Landlord's
agreement not to construct the Second Building from the Building
Construction Start to the 1st Anniversary of the Commencement Date and,
subject to
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clause 8(b), the Tenant shall submit payment to the Landlord prior to
the Commencement Date in the amount of $153,750.00 plus GST, based
upon $3.75 per square foot of gross office space multiplied by 41,000
square feet available in the Second Building. The Tenant shall have
the right by providing twelve (12) months' prior written notice to
extend such non-construction agreement as at the 1st and 2nd
anniversary dates of the Commencement Date each for a payment of
$153,750.00 (plus GST), each for a one (1) year period from such
anniversary date. Following is a schedule of the Agreement Not to
Construct:
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Payment Amount Agreement Not To
Notice Deadline Payment Deadline Construct Period
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N/A N/A N/A Between Lease execution and
Building Construction Start (est.
June 2000 to July 2001)
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Within thirty (30) days of Commencement Date $153,750.00 Between Building Construction
of the Tenant being notified (est. July 2002) plus GST Start and 1st Anniversary of
of Building Construction Start Commencement Date (est.July 2001
(est. July 2001) to June 2003)
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Commencement Date 1st Anniversary of $153,750.00 Between 1st and 2nd Anniversary
(est. July 2002) Commencement Date plus GST of Commencement Date
(est. July 2003) (est. July 2003 to June 2004)
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1st Anniversary of 2nd Anniversary of $153,750.00 Between 2nd and 3rd Anniversary
Commencement Date Commencement Date plus GST of Commencement Date
(est. July 2003) (est. July 2004) (est. July 2004 to June 2005)
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If the Tenant does not provide such written notice by the date therefor
or does not make any of the payments by any of the applicable times,
such agreement not to construct shall terminate without further action
upon expiry of the period applicable to the last payment made. If the
parties mutually agree to proceed with construction of the Second
Building in a period after payment has been made by the Tenant, the
Tenant shall be refunded the proportionate amount paid by the Tenant
for that portion of the period from the first date that the Landlord
has poured concrete to commence construction of the Second Building
(the "Second Building Construction Start"). If the Landlord does not
refund such amount within thirty (30) days of such date, such amount
may, in addition to all other rights and remedies that the Tenant may
have against the Landlord, be set off against the Rent. If the Second
Building Construction Starts commences in a period after payment has
been made by the Tenant without the agreement of the parties, the
Tenant shall be refunded the entire amount paid by the Tenant for that
period without prejudice to all its other rights and remedies. Such
amount may be set off against the Rent, CAM Costs and Taxes. The
Landlord acknowledges and agrees that the covenants contained in this
clause 7 may be enforced by injunction and that such remedy is the
appropriate remedy for breach of covenant by the Landlord. If there is
a decrease in the area of the Second Building, the above payment
amounts shall be reduced proportionately.
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8. LANDLORD'S AGREEMENT TO CONSTRUCT THE SECOND BUILDING
(a) Provided the Tenant is not then in material default, upon the
Tenant providing the Landlord with an unconditional leasing
commitment for a minimum of 75% of contiguous rentable area of
the Second Building starting from the ground floor or the top
floor on or before the 3rd anniversary of the Commencement Date,
the Landlord agrees:
(i) to deliver to the Tenant an agreement including substantially the
same terms and conditions in clause 11 of this Offer to Lease
modified to reflect that the Second Building is significantly
smaller than the Building, which shall apply to the development
and construction thereof;
(ii) to build the Second Building, subject to Force Majeure, within
ten (10) to fourteen (14) months thereafter, in a good and
workmanlike manner and of a comparable quality to the Building;
(iii) during construction of the Second Building, to use all
reasonable efforts to minimize interference with the Tenant's
rights under the Lease (including access to the Premises); and
(iv) to lease the committed portion thereof to the Tenant at the same
terms as the Premises (except commencing upon substantial
completion of the Second Building and expiring at the end of the
Term) save as to Rent, Leasehold Improvement Allowance and
parking. There shall be no additional parking provided as all
parking for the Building and the Second Building shall be built
at the same time as the Building.
(b) Rent, leasehold improvement allowance, free rent and other
inducements applicable to the additional space shall be at the
then prevailing market terms incorporating any increased
construction costs for the Second Building relative to the
Building in such determination, but not less than the Building
rents. If the Landlord proceeds with construction of the Second
Building in accordance with this clause 8, the Tenant shall not
be obligated to pay the $153,750.00 per year payment outlined in
clause 7 during the construction period. The Landlord's
obligations under this clause 8 are not subject to the Tenant
making payments and sending the notices on time as contemplated
by clause 7, provided that the Landlord's agreement to not
construct the Second Building may not be enforced by the Tenant
if payments required by clause 7 have not been paid when due.
Without limiting any other rights the Landlord may have, until
such overdue payment is made the Landlord may enter into binding
offers to lease and lease agreements for the Second Building
without incurring any liability to the Tenant, even if such
offers to lease and lease agreements prevent the Landlord from
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9. OPTION TO EXPAND INTO THE SECOND BUILDING
Provided the Tenant is not then in material default and has not
exercised its rights under clauses 6 or 8, the Tenant shall have an
Option to Expand the Premises by taking not less than one complete
floor in the Second Building. The Tenant will take contiguous complete
floors to the extent possible (and the parameters of any area not
comprising a complete floor shall be determined in a reasonable and
businesslike manner) starting with the ground floor (the "Second
Building Option Area"). Such Option to Expand into the Second Building
must be exercised by notice in writing to the Landlord no later than
three (3) months following written notice by the Landlord that the
Second Building Construction Start has occurred . Lease terms
applicable to the Second Building Option Area shall be the same as for
the Premises (except the term which shall commence upon substantial
completion of the Second Building and expire at the latest of five (5)
years after date of substantial completion of the Second Building and
the Term) save as to Rent, leasehold improvement allowance, free rent,
other inducements and parking. There shall be no additional parking
provided as all parking for the Building and the Second Building shall
be built at the same time as the Building. Rent, leasehold improvement
allowance, free rent and other inducements shall be at the then
prevailing market terms (reflecting the actual length of the term) but
not less than the Rent described in clause 3. Failing agreement on the
Rent, leasehold improvement allowance, free rent and other inducements,
such matters shall be determined by arbitration pursuant to Exhibit "G"
of the Lease.
10. RIGHT OF FIRST OFFER ON ALL BUILDINGS ON THE SITE
(a) Provided the Tenant is not then in material default, the Tenant
shall have an on-going right of first opportunity throughout the
Term or any renewal term (the "Right of First Opportunity") to
lease any premises (the "RFO Premises") within the Site that the
Landlord intends to lease from time to time within the Site, upon
the following terms and conditions:
(i) the Landlord shall provide the Tenant with a written notice (the
"Notice") in respect of the portion of the RFO Premises that the
Landlord desires to lease (the "Additional Space"), setting out
the details of the Additional Space and the proposed terms that
the Landlord is willing to lease such Additional Space to the
market, which shall include the rent payable, the term and tenant
inducements, if any. If the Landlord either reduces the rent or
increases the inducements from the Notice first delivered to the
Tenant, the Landlord shall deliver to the Tenant a renewed Notice
and first opportunity to lease applicable to the then available
Additional Space at the improved terms;
(ii) the Tenant shall have five (5) Business Days after delivery to
the Tenant of the Notice or a renewed Notice, as the case may be,
to deliver a written notice (the "Acceptance Notice") to the
Landlord exercising the Right of First Opportunity in respect of
all of the Additional Space; and
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(iii) if the Tenant delivers the Acceptance Notice to the Landlord
within the applicable time period, there shall be a binding
agreement to lease between the Landlord and the Tenant with
respect to the Additional Space on the terms and conditions set
out in the Notice and incorporating the terms and conditions of
the Lease to the extent reasonably possible and applicable.
(b) If the Tenant fails to deliver the Acceptance Notice to the
Landlord within the applicable time period:
(i) the Landlord may at any time during the one hundred (100) day
period after delivery of the Notice to the Tenant enter into a
lease or offer to lease of the Additional Space with any third
party on terms and conditions no more favourable to the third
party (and in a size no smaller or larger) than as set out in the
Notice, and failing such agreement as aforesaid the provisions of
the Right of First Opportunity shall again apply to the
Additional Space;
(ii) if the Landlord leases the Additional Space in accordance with
clause 10(b)(i), the Tenant's Right of First Opportunity with
respect to the Additional Space shall lapse and be of no further
force and effect until such Additional Space again becomes
available for lease during the Term or any renewals thereof;
(iii) the Tenant's Right of First Opportunity shall continue to apply
to that portion of the RFO Premises not forming part of the
Additional Space leased in accordance with clause 10(b)(i); and
(iv) if one hundred (100) days has passed between the date that the
Landlord provided the Notice or a renewal Notice, as the case may
be, to the Tenant that the Landlord intends to lease a particular
portion of the RFO Premises, the Landlord shall be required to
continue to provide a renewal Notice to the Tenant for its Right
of First Opportunity to lease so that not more than one hundred
(100) days passes from the last date that the Tenant was entitled
to deliver an Acceptance Notice upon receiving a Notice or
renewal Notice, as the case may be, and the Landlord leasing the
portion of the RFO Premises to a third party.
11. CONSTRUCTION OF THE BUILDING
(a) Definitions
In this clause 11, the capitalized words used in this clause and
elsewhere in this Offer to Lease will have the meanings assigned to
them below. Any capitalized terms not defined in this clause 11 shall
have the meaning set out elsewhere in this Offer to Lease or the
Lease:
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(i) "Base Building Construction Costs" means all costs to construct
the Building in accordance with the Plans and Specifications and
the costs referred to in clause 11(b);
(ii) "Base Building Works" means the construction of the Building in
accordance with the Plans and Specifications;
(iii) "Force Majeure" means if either party hereto is delayed or
hindered in or prevented from the performance of any obligations
required hereunder by reason of strikes, lock-outs, labour
troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots,
insurrection, war, military or usurped power, sabotage, unusually
severe weather, fire or other casualty or other reason (but
excluding inadequacy of insurance proceeds, financial inability
or the lack of suitable financing) of a like nature beyond the
reasonable control of such delayed party and does not arise from
the neglect or default of that party;
(iv) "Landlord's Work" means the construction of the Base Building
Works and the Leasehold Improvements in accordance with the Plans
and Specifications and the Working Drawings, respectively;
(v) "Leasehold Improvements" means the improvements required by
Tenant to be made by Landlord to the Premises pursuant to the
Working Drawings that the Landlord and the Tenant's Consultant
have agreed the Landlord will carry out and excludes, for greater
certainty, any Tenant's Work;
(vi) "Material Matters" or "Material Design Issues" shall include the
following:
(A) changes to the exterior design, appearance, materials and
finish colours;
(B) material changes to the size, shape and height of the
Building
(or Second Building, as applicable) including the height of the
lobby and the height of each floor and the size of the floor
plate;
(C) material changes to the height of the Tenant's lobby or the
size, configuration, location, colour, materials, fixtures
or other aesthetic features of the Building lobbies and
entry ways;
(D) material changes to entry or exit points in the Building (or
Second Building) or parking areas;
(E) material changes in design or construction that might
increase the cost of the Tenant for utilities, security,
insurance, furnishings, Leasehold Improvements or Tenant's
Work;
(F) material changes to exterior areas, Common Areas and
facilities; and
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(G) changes to locations of the Tenant's space in the Building
(or the Second Building);
(vii)"Plans and Specifications" means the preliminary plans and
specifications for the Base Building Works (excluding the
Leasehold Improvements) as agreed upon between the Landlord and
the Tenant's Consultant acting reasonably, and includes the
Rendering and Schedule "B" hereto, all as supplemented or amended
from time to time in accordance with this Offer to Lease;
(viii)"Project Schedule" means the construction schedule for the
Building approved by the Landlord from time to time after
consulting with the Tenant's Consultant;
(ix) "Rendering" means that certain drawing dated March 29, 2000,
prepared by Xxxxx & Associates Architects Ltd., a copy of which
is attached hereto as Schedule "C";
(x) "Substantial Performance" or "Substantially Performed" means the
later of the date the Landlord's architect has delivered a
certificate to the Landlord and the Tenant certifying that the
Landlord's Work (other than vegetation and ornamental
landscaping) has been substantially performed, the Tenant is able
to take possession of the Premises and the Landlord has received
a temporary or conditional occupancy permit from the City of
Vancouver lawfully permitting the Tenant to occupy and use the
Premises;
(xi) "Tenant's Consultant" means the representative appointed by the
Tenant by notice in writing to the Landlord (or a replacement
consultant appointed by the Tenant, providing no less than ten
(10) Business Days' written notice to the Landlord), to approve
any matter requiring approval by the Tenant pursuant to this
Offer to Lease who shall be the Tenant's sole representative with
respect to the construction of the Base Building Works and the
Leasehold Improvements;
(xii)"Tenant's Work" means any and all work that is to be carried out
by the Tenant at its cost and that is not included in the Plans
and Specifications or the Working Drawings, and is approved by
the Landlord, acting reasonably and without delay, and includes,
without limitation, the costs and installation of communications
equipment, cabling throughout the Building, rooftop equipment,
security systems, furniture and furniture systems, and any office
equipment and appliances; and
(xiii)"Working Drawings" means the detailed and completed plans and
specifications for the Leasehold Improvements including all space
plan services with respect to the Leasehold Improvements approved
by the Landlord pursuant to clause 12(b).
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(b) Landlord's Work
(i) Once construction starts, the Landlord agrees that it will
proceed continuously, subject to Force Majeure, and diligently to
complete all of the Landlord's Work, substantially in accordance
with the Project Schedule, and in a good and workmanlike manner
such that it will be considered a first class office building
taking into consideration the nature and location of the Site,
and shall deliver the Premises to the Tenant in accordance with
clause 11(b)(iii) hereof. The Landlord's cost of constructing
such Building shall include all site costs such as temporary
heat, light and power, Site access, hoisting, temporary toilets,
first aid and safety requirements, Site organisation and storage
and clean up even though the sub-trades for the Tenant's
Leasehold Improvements may benefit from such infrastructure being
in place, provided any additional costs resulting directly from
the usage for the construction of the Leasehold Improvements
shall form part of the costs of the Leasehold Improvements. The
Landlord shall be responsible for the Base Building Construction
Costs for the Premises and/or the Base Building Works, whichever
is applicable. If an open plan for the ceiling design is included
as part of the Base Building Works, credit shall be provided to
the Tenant for the cost of the unused portion of the ceiling that
otherwise would have been provided as part of the Base Building
Works and any costs in excess of the credit amount shall be
charged against the Tenant's Leasehold Improvement Allowance
referenced in clause 12 of this Offer to Lease. The Base Building
Works shall include the work described in Schedule "B" attached
hereto.
(ii) For greater certainty, the Landlord shall be responsible for all
Base Building Construction Costs and all variations in the amount
of Base Building Construction Costs, except if the Base Building
Construction Costs increase as a result of Tenant changes,
modifications or additions to the Plans and Specifications, the
materials with respect to such changes, modifications or
additions cost more than the materials described in the Plans and
Specifications or such changes, modifications or additions extend
the Project Schedule, all in accordance with a Change Request
pursuant to clause 11(d) hereof, in which event such increase in
costs shall be for the account of the Tenant and paid within
fourteen (14) days of invoicing by the Landlord. Any delays in
payment by the Tenant of such amounts shall accrue interest at
the rate of 12% per annum, calculated semi-annually not in
advance from the date of invoicing to the date of repayment by
the Tenant.
(iii)The Premises shall be delivered to the Tenant on the Commencement
Date in the condition described below, free of all Landlord's
personal property, signage or debris and thoroughly cleaned to
the extent that it does not interfere with the Tenant's Work and
otherwise in a condition that is in compliance with the Legal
Requirements (as defined in the Lease) for office property. The
Landlord covenants, that, upon the Commencement Date, all of the
Landlord's Work shall be complete in all material respects,
subject only to the Deficiencies
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(described in clause 11(k) hereof) and all elevators, equipment,
roof walkpads and utilities serving the Premises shall be
installed and operating and in good working order, all corrective
work to comply with the foregoing shall be performed by the
Landlord at its cost and expense and shall be included in the
list setting out the Deficiencies.
(iv) The Landlord and the Tenant acknowledge that the construction of
the Base Building Works and Tenant Improvements by the time set
forth in clause 27 of this Offer to Lease is based on the
Building proceeding within the time schedule set out in the
Project Schedule.
(c) Tenant's Consultant
(i) The Tenant will designate the Tenant's Consultant to consult, on
behalf of the Tenant and as the Tenant's sole representative,
with the Landlord on the design, planning, development and
construction of the Building and Site in accordance with the
terms of this Offer to Lease.
(ii) The Tenant agrees to cause the Tenant's Consultant to deliver its
approval or non-approval, as the case may be, and submit all
documents in a timely manner as set out in this Offer to Lease
and in accordance with the Project Schedule. The Landlord shall
prepare and present to the Tenant's Consultant for the Tenant's
Consultant's approval any matters which requires approval of the
Tenant's Consultant pursuant to this Offer of Lease (who shall
respond within four (4) Business Days of receipt of request by
the Landlord).
(iii)subject to clause 13, the Landlord may modify the Plans and
Specifications during the construction process in a manner
consistent with good, consistent and appropriate construction
practices and in keeping with the Project Schedule, without the
prior written consent of, but upon notice to, the Tenant's
Consultant, provided such changes are not Material Matters (which
changes require the prior written consent of the Tenant's
Consultant).
(d) Change Orders
The Tenant's Consultant will be responsible for making any changes to
the Plans and Specifications and/or the Working Drawings by submitting
a written change request to the Landlord for consideration (the
"Change Request"). The Landlord, acting reasonably, will consider the
Change Request and will advise the Tenant's Consultant, in writing
(the "Change Request Response") as soon as practicable, as to which
changes, if any, are acceptable and will advise the Tenant's
Consultant as to any increase or decrease in the Base Building
Construction Costs or costs of Leasehold Improvements, as the case may
be, resulting from such Change Request and any delays in the Project
Schedule arising from the Change Request. The Tenant's Consultant
will, within four (4) Business Days of receipt of the Change Request
Response, confirm in writing that it has accepted the changes approved
by the Landlord, if applicable, and
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the revision to the Base Building Construction Costs and/or cost of
Leasehold Improvements and the changes to the Project Schedule, or
withdraw its Change Request, provided that if the Tenant's Consultant
does not confirm its acceptance of the approved changes or withdraw
its Change Request within the four (4) Business Day period, the
Tenant's Consultant will be deemed to have withdrawn its Change
Request. If the approved Change Request results in an increase in the
Base Building Construction Costs and/or the costs of the Leasehold
Improvements, the amount of such increase shall be payable in
accordance with clause 12(a). If it is not agreed in writing upon
submission of a Change Request Response that such change will extend
the Project Schedule, the Commencement Date shall not be affected.
(e) Pricing
The Landlord agrees to obtain fee proposals for engineering
consultants as a combined package for design of both the Base Building
Work and Leasehold Improvements. Request For Proposals document
("RFPs") are to be agreed upon by the Landlord and the Tenant. RFPs
shall request breakout pricing on fees for Leasehold Improvements. The
Landlord and the Tenant to review proposals and mutually agree on
award of contracts and split between Base Building Works and Leasehold
Improvements. Failing agreement on the above, the Landlord and the
Tenant reserve the right to obtain separate engineering consultants
for the Base Building Works and the Leasehold Improvements. The
Tenant, independent of the Landlord, will retain interior design
services for the Leasehold Improvements.
(f) Design and Tendering
The Landlord's Work will be fully designed by professional consultants
and the Leasehold Improvements will be competitively tendered to
qualified contractors and trades.
(g) General Contractor's Cost Limits
The Landlord will retain a general contractor to construct the
Leasehold Improvements with limits on costing as follows:
(i) maximum profit and overhead fee of 4% (5% on change orders) plus
$15,000.00 for a project manager to be charged on the Leasehold
Improvements. Fee to cover all off-site costs, including but not
limited to office related construction co-ordination/estimating,
project management, value engineering, administration, overhead,
related expenses, and profit;
(ii) only general condition costs attributable specifically to the
Leasehold Improvements will be approved as a Tenant cost. All
general condition costs are subject to review and approval by the
Tenant's Consultant, acting reasonably. It is understood that the
Leasehold Improvements will require a separate site
superintendent at the Tenant's expense;
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(iii)the general contractor will receive a minimum of three (3)
sub-trade prices on all sections of the Leasehold Improvements
and will submit them to the Tenant for review. The Tenant
reserves the right to provide one qualified sub-trade for
consideration in all divisions of the work. The Landlord and the
Tenant shall review the pricing and mutually agree on the award
of sub-trade contracts with respect to the Leasehold
Improvements, failing which, such awarding shall be determined by
arbitration pursuant to Exhibit "G" of the Lease; and
(iv) the general contractor will receive a minimum of two (2)
sub-trade design build bids with appropriate pricing options on
the sprinkler, electrical and HVAC components of the Landlord's
Work and will submit them to the Tenant for review and if the
Tenant, acting reasonably, is not satisfied with the amount of
the Leasehold Improvements portion of a bid that the Landlord
determines is acceptable with respect to the Landlord's Work,
then the Landlord shall tender such Leasehold Improvement portion
one more time, provided that the Landlord, acting reasonably,
shall be entitled to award such sub-trade contracts without the
consent of the Tenant after the Tenant's review or such further
tender, as the case may be.
Maximum change order xxxx-up of 10% on materials and labour
by sub-trades on Leasehold Improvements.
(h) Separate Pricing
All items of the Landlord's Work that will be affected or revised by
the Leasehold Improvements (lighting, sprinkler heads, etc.) are to be
designed and priced with a request for appropriate price options. This
may be in the form of a request for break-out pricing, unit pricing,
unit relocation pricing, pricing for deletion. This will allow the
Landlord and the Tenant's Consultant to fairly and accurately separate
the cost of the Leasehold Improvements from that of the Base Building
Works. The Landlord and the Tenant's Consultant are to review pricing
and mutually agree on costing of price options.
(i) Reasonableness
The Landlord and the Tenant's Consultant, and each person acting for
the Landlord or the Tenant (as the case may be), in making any
determination (including, without limitation, any determination as to
whether or not to grant any consent or approval required of it),
designation, calculation, estimate, conversion, or allocation under
this Offer to Lease, will act reasonably (except if the Tenant's or
Tenant's Consultant's consent is not expressly required, it shall be
at the Landlord's sole discretion, acting reasonably) and in good
faith and each accountant, architect, engineer, surveyor and other
professional person employed or retained by the Landlord or the Tenant
will act in accordance with the applicable principles and standards of
such person's profession.
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(j) Inspection and Access by the Tenant
The Tenant and the Tenant's Consultant shall have the right, from time
to time, at any reasonable time, to visit the Site and perform Site
inspections, provided such inspections and access do not interfere
with or delay the Landlord from completing the Landlord's Work within
the Project Schedule. The Tenant shall have the right to access the
Premises and the Building prior to the Commencement Date in order to
complete the Tenant's Work; provided, however, that the Landlord's
Work and Tenant's Work shall be co-ordinated as directed by the
Landlord, acting reasonably, in order to allow the Tenant's Work to be
performed concurrently without interference and without delay to the
Project Schedule.
(k) Inspection of Premises for Deficiencies
Prior to the Commencement Date, the Landlord and the Tenant's
Consultant shall conduct an inspection of the Premises for the
purposes of determining any defects or deficiencies in the Landlord's
Work, which Landlord's Work is not in accordance with the Plans and
Specifications and Working Drawings (the "Deficiencies"). The Tenant's
Consultant and the Landlord shall prepare a list of the Deficiencies.
The Landlord agrees to repair the Deficiencies in a timely, diligent
and good and workmanlike manner. In no event will the Tenant be
entitled to claim an offset against Rent under the Lease or be
entitled to a holdback on account of any Deficiencies claimed by the
Tenant.
(l) Warranty
The Landlord agrees to obtain a one (1) year warranty from its general
contractor and the Landlord agrees to diligently enforce such warranty
on materials, labour and workmanship from its general contractor with
respect to the Base Building Works and Tenant Improvements for the
benefit of the Tenant.
(m) Conflict
Nothing shall be binding as between the Landlord and the Tenant,
except to the extent set forth in this Offer to Lease or in the Lease
or as otherwise agreed to in writing by the Landlord and the Tenant.
In the event of a conflict or inconsistency between:
(i) the schedules attached to this Offer to Lease, other than the
Lease;
(ii) the provisions of clause 13 hereof;
(iii) the provisions of the Lease;
(iv) the Plans and Specifications; and
(v) the Working Drawings,
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the following order of priority shall be determinative in
resolving such conflicts or inconsistencies among various
documents:
(A) the schedules attached to this Offer to Lease, other
than the Lease;
(B) the Plans and Specifications;
(C) the provisions of clause 13 hereof;
(D) the Lease; and
(E) the Working Drawings.
(n) Reimbursement to Tenant
If this Offer to Lease or the Lease is terminated in accordance with
clause 27 of this Offer to Lease, the Landlord covenants and agrees to
forthwith repay to the Tenant all amounts paid by the Tenant for
Leasehold Improvements or increased costs associated with Change
Orders or other changes generated by the Tenant.
12. LEASEHOLD IMPROVEMENTS AND LEASEHOLD IMPROVEMENT ALLOWANCE
(a) The Landlord agrees to construct the Leasehold Improvements in
the Premises diligently and in a good and workmanlike manner in
accordance with the Working Drawings and in a manner in keeping
with the Project Schedule for the Building and approved by the
Landlord's architect, acting reasonably. The Landlord agrees to
pay for the first Thirty Dollars ($30.00) per square foot of
Rentable Area (excluding roof decks and private patio areas) for
the Premises with respect to the Leasehold Improvements (the
"Leasehold Improvement Allowance") and shall be payable within
fourteen (14) days of invoicing from the Landlord, subject to
approval of such invoicing by the Tenant's Consultant, acting
reasonably and without delay. The Leasehold Improvement Allowance
may be used to pay the cost of all plans, permits, consultants,
materials and labour for design, construction and installation of
the Leasehold Improvements and voice and data cabling and any
other costs that the Tenant's Consultants approves in writing.
Any amount incurred over the amount of the Leasehold Improvement
Allowance shall be to the account and responsibility of the
Tenant, and the Tenant, upon receipt of a draw request including
confirmation that the Leasehold Improvements described in such
draw request have been completed and approval of such draw
request by the Tenant's Consultant, acting reasonably and without
delay, covenants to pay such amounts within fourteen (14) days of
invoicing, failing which such amount shall be treated as Rent in
arrears and as a debt due and owing. Any unused portion of the
Leasehold Improvement Allowance shall be credited to the Tenant's
account in the form of net free rent from the Commencement Date.
Subject to payment of the Leasehold Improvement Allowance by the
Landlord, the Tenant shall be liable for and shall pay for all
amounts owing on account of the Leasehold Improvements that is in
excess of the Leasehold Improvement Allowance
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within fourteen (14) days of invoicing from the Landlord. Any
delays in payment by the Tenant of such amounts shall accrue
interest at the rate of 12% per annum calculated semi-annually
not in advance from the date of invoicing to the date of
repayment by the Tenant. The Landlord will not charge any
management fee for construction of the Leasehold Improvements.
(b) Notwithstanding anything to the contrary contained in this Offer
to Lease, the Tenant may, if it advises the Landlord in writing
on or before August 15, 2000 that it intends to do so, select in
a timely manner their own design team and project consultants to
prepare the Working Drawings for the Leasehold Improvements. The
Tenant's Consultant shall provide to the Landlord the Working
Drawings in accordance with the Project Schedule for the
Building, approved for permitting and pricing by the Landlord, in
a timely manner in accordance with clause 11(c)(ii) hereof to
facilitate the Landlord meeting the Project Schedule and the
terms contained in this Offer to Lease.
13. TENANT'S APPROVAL ON BUILDING DESIGN / OTHER TENANT USES
The Landlord understands and agrees that the Building shall be
constructed for the Tenant's use and the Tenant, provided it is
occupying the majority of the Rentable Area in the Building, acting
reasonably and without delay, shall have approval rights on the
proposed use of premises in the Building and the Second Building by
other tenants and Material Design Issues for the Building and the
Site. The Landlord shall work with the Tenant and the Tenant's
Consultant to create a design for the Second Building that is approved
by the Tenant's Consultant, acting reasonably and without delay. The
Landlord must obtain written approvals from the Tenant's Consultant,
acting reasonably and without delay, for Material Matters and Material
Design Matters, and shall invite the Tenant's Consultant to attend all
design meetings throughout the design process. The Tenant agrees to
provide written responses to the Landlord's requests for approvals on
leases, Material Matters, Material Design Issues and other design
issues that require the Tenant's or the Tenant's Consultant's
approval, as the case may be, within four (4) Business Days of receipt
by the Tenant's Consultant of the request and all plans and
information needed by the Tenant's Consultant, acting reasonably, to
consider the request.
14. PERMITS
It is the Landlord's responsibility to secure all the necessary
building permits and approvals required by the City of Vancouver for
the Leasehold Improvements and the Base Building Works. The Landlord
shall also be responsible for making application for a partial or
conditional certificate of occupancy, if available, and a final
certificate of occupancy as issued by the City of Vancouver as they
apply to the Leasehold Improvements and the Building.
15. BUILDING NAME
The Landlord agrees to name the Building "Pivotal Corporation
Building" on the terms set out in the Lease.
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16. PARKING
The Landlord agrees to lease the number of parking stalls to the
Tenant on the terms and conditions set out in Section 26.7 of the
Lease. Parking charges per parking stall shall be fixed at:
(a) One Hundred Ten Dollars ($110.00) per month for years 1 - 5;
(b) One Hundred Twenty Five Dollars ($125.00) per month for years 6 -
10; and
(c) One Hundred Forty Five Dollars ($145.00) per month for years 11 -
15.
After the Second Building is developed the parking shall be
re-apportioned based on the Tenant's proportionate share of Rentable
Area on the Site.
17. USE OF PREMISES
The Premises are to be used for general business use.
18. LEASE FORM AND AMENDMENTS TO LEASE AT COMMENCEMENT
(a) Not later than September 1, 2000, the parties will sign in
duplicate the Lease in the form attached hereto as Schedule "D"
and deliver all copies to Xxxxxxx Xxxxx, Business Lawyers, to
hold in trust until notice is received from the Landlord or the
Tenant, as the case may be, that either:
(i) this Offer to Lease has been terminated or otherwise
cancelled; or
(ii) that the upset dates described in clauses 26 and 27 of this
Offer to Lease have expired and this transaction has not
otherwise been cancelled or terminated,
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 or the Lease is terminated in
accordance with the aforementioned provision or otherwise
cancelled then, in addition to any other provisions of this
Offer, all executed copies of the Lease will be returned to the
Tenant for destruction.
(c) In the event the upset dates have expired and this transaction
has not otherwise been cancelled or terminated, 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,
subject to the parties first agreeing upon the changes described
in the next paragraph.
(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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17
(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.
If either the Landlord or the Tenant refuses or neglects to sign
the Lease, the Landlord and the Tenant agree that they are
nonetheless bound by the terms of the Lease which are
incorporated by reference into this Offer to Lease.
19. END INVESTOR
The Landlord and the Tenant understand and agree that the Building and
the Site may be sold to a third party investor (the "End Investor"),
and that the Tenant shall have the right to approve the identity and
financial standing of the End Investor, such approval not to be
unreasonably withheld or delayed. The End Investor will assume all the
obligations of the Landlord and the Landlord will not be released
until the Commencement Date has occurred and the End Investor has
delivered to the Tenant an agreement in favour of the Tenant whereby
the End Investor assumes all obligations of the Landlord in the Lease.
20. ENTIRE AGREEMENT
It is understood and agreed that the terms and conditions of this
Offer to Lease shall be those expressly set out herein and in the
Schedules attached hereto and, except as expressly set out herein and
in the attached Schedules hereto, there are no collateral or other
representations, warranties, conditions or agreements of the Landlord
and none shall be implied.
21. BINDING AGREEMENT
This Offer to Lease and its Schedules and the Landlord's acceptance
hereof shall constitute a binding agreement by the parties on and
subject to the terms and conditions herein contained. Such agreement
may not be assigned or otherwise transferred by the Tenant without the
prior written consent of the Landlord. The Landlord shall obtain a
written assumption in favour of and delivered to the Tenant of its
obligations under this Offer to Lease from any party it transfers its
interest in the Site to provided that the Landlord will not be
released until the Commencement Date has occurred. If there are two
(2) or more offerors hereunder comprising the Tenant, the liability of
such offerors shall be joint and several.
22. TIME OF ESSENCE
Time shall be of the essence of this Offer to Lease.
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23. OPTIONS TO RENEW
(a) If the Tenant is not then in material default of the covenants in
the Lease to be performed and observed by the Tenant, the
Landlord shall grant to the Tenant, upon six (6) months' written
notice prior to the expiration of the Term or the applicable
renewal term, as the case may be, two (2) renewal leases each for
a term of three (3) years upon the same terms and conditions
contained herein, save as to Rent, parking charges, Leasehold
Improvement Allowance and any other inducements and clauses 5, 6,
7, 8 and 9 inclusive of this Offer to Lease (unless the Tenant
still has its original rights under such provisions).
(b) The Rent and parking charges payable by the Tenant and any
inducements during each renewal term shall be negotiated and
agreed upon between the parties prior to the commencement of such
renewal term based on the prevailing fair market rent with fair
market inducements and fair market parking charges at the
commencement of such renewal term for similarly improved premises
of similar size, quality, use and location in office buildings of
a similar size, quality and location in Vancouver less the value
of improvements paid by the Tenant in excess of the Leasehold
Improvement Allowance (depreciated on a straight line basis).
Failing such agreement, then within two (2) months prior to the
commencement of such renewal term, Rent, parking charges and any
inducements shall be determined by arbitration as set out in
Section 6.1(a)(ii) and Exhibit "G" to the Lease.
24. ASSIGNMENT BY LANDLORD
The rights and obligations in this Offer to Lease may not be assigned
by the Landlord without the prior written consent of the Tenant, which
consent may not be unreasonably withheld, provided that the Landlord
may assign to an affiliate or a subsidiary of the Landlord or as part
of a corporate reorganization, in which case, such assignment may take
place without the said consent of the Tenant, but nevertheless, the
Landlord shall not be released from its obligations herein, and,
subject to the terms and conditions of clause 19, the rights and
obligations in this Offer to Lease may be assigned to the End
Investor. Notwithstanding the foregoing, representatives of PCI
Properties Corp. shall remain project manager and the primary contact
personnel with the Tenant for the completion of the Landlord's Work.
25. INTENTIONALLY DELETED
26. CITY OF VANCOUVER APPROVALS
The Tenant shall assist the Landlord in meeting with the City of
Vancouver officials throughout the Site rezoning process as shall be
reasonably necessary. Subject to Force Majeure, the Landlord shall use
reasonable commercial efforts to have the Site rezoned and a
development permit in place prior to April 1, 2001. Subject to Force
Majeure, if such development permit and rezoning are not enacted by
December 31, 2001, the Landlord and the Tenant shall each have the
option of terminating this Offer to Lease by written notice to the
other delivered within five (5) Business Days of such date, and
neither party shall have any further obligation to the
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other and the Security Deposit plus GST shall be returned to the
Tenant.
27. CONSTRUCTION COMMENCEMENT DEADLINE - UPSET DATE AND REMEDY
If the development permit for the Building has not been issued by
December 1st, 2001, the permit or permits authorizing the Landlord to
construct the Building to at least the state that it is in on November
30, 2001 have not been issued and the Building Construction Start (as
defined in clause 7) has not occurred for any reason on or before
December 1st, 2001, then, provided that the Landlord is unable to
satisfy the Tenant, acting reasonably, by such date that the Building
can be substantially performed and that the entire premises will be
ready of occupancy by Tenant on or before October 1, 2002, on receipt
of written notice from the Tenant to the Landlord received by December
5, 2001, this Offer to Lease and the Lease shall be null and void and
the Security Deposit (as defined in clause 28) shall be forthwith
returned to the Tenant and neither party shall have any further claim
against the other with respect to this Offer to Lease and Lease.
Notwithstanding the foregoing, Force Majeure shall not apply to extend
the dates in this clause 27.
28. SECURITY DEPOSIT
Within two (2) days of execution by both parties of this Offer to
Lease, the Tenant will provide a letter of credit issued to the
Landlord in an amount of $1,000,000.00 to be held upon the terms and
conditions contained in section 6.3 of the Lease (the "Security
Deposit"). Not later than July 3, 2001, the Security Deposit will be
increased to $3,750,000.00 and, not later than July 2, 2002, the
Security Deposit will be increased to $7,855,000.00 (calculated as two
(2) years' gross rent of approximately $62.84 per square foot
multiplied by 125,000 square feet). The terms of Exhibit "F" attached
to the Lease, as well as the provisions in 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.
29. TENANT'S COVENANTS
The Tenant covenants and agrees with the Landlord that:
(a) that it will not assign or sublet the Lease or the Premises, or
any portions thereof, or permit same to be used or occupied by,
Costco Wholesale Canada Ltd. or any of its affiliates for office
use or for a wholesale/retail outlet prior to January 1, 2010 or
Seagate Software Information Management Group (Canada) Inc. or
any of its affiliates for office use prior to January 1, 2010 and
that Pacific Place Holdings Ltd. as the owner of the lands
comprising Concord Pacific Place, may register a restrictive
covenant to secure this restriction against the Site for the
benefit of adjacent lands;
(b) it will not object, directly or indirectly, to any lawful aspect
of the development of the lands comprising Concord Pacific Place;
and
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20
(c) the nature of developments in Concord Pacific Place, including
height, size and location of developments and any art piece on
these developments are not material to the Tenant proceeding with
the transaction as contemplated in this Offer to Lease.
30. COMMUNICATIONS EQUIPMENT
(a) The Tenant shall be responsible for the installation and
maintenance of its telephones, computers and special
communications equipment, including satellite dishes or other
antennae (herein collectively called "Communications Equipment").
The Tenant acknowledges that the Landlord has authorized Novus
Entertainment (B.C.) Inc. ("Novus") to provide cable television
and Telus to provide certain other communications links, services
and facilities for the Project including, without limitation,
voice data and video communications services and facilities (the
"Communications Services and Facilities") to the Project. To the
extent that Novus and Telus are unable to meet the requirements
of the Tenant or any Related Party (as defined in the Lease):
(i) on reasonably competitive commercial terms; or
(ii) from a technological or timetable standpoint,
then the Tenant and Related Party shall have no obligation
whatsoever to use either Novus or Telus, as the case may be.
(b) The Landlord covenants and agrees that the Tenant shall have the
right to supply or designate one or more additional carriers to
supply Communications Services and Facilities to the Tenant, any
Related Party and others doing business with the Tenant. Without
limiting the generality of the foregoing, the Tenant shall have
the right to install or cause to be installed from time to time
Communications Equipment in the Building, including on the roof
of the Building or the Second Building. There shall be no
additional charge payable by the Tenant to the Landlord for the
Communications Services and Facilities or for the use of such
areas in the Project or for the installation of the
Communications Equipment. The Tenant's vendor, as the designee of
the Tenant, shall have the right to install the Communications
Equipment and such vendor and the Tenant, jointly and severally,
shall indemnify the Landlord and be solely responsible, at their
cost and expense, for the maintenance and repair of the
Communications Equipment, and the Landlord shall have no
responsibility with respect thereto unless the same was made
necessary by the negligence or wilful act of the Landlord or
Landlord's Agents (as defined the Lease).
(c) The Landlord and the Tenant acknowledge and agree to enter into
and execute an amendment to this Offer to Lease that sets out the
final terms and conditions for clause 30(a) upon agreement to
such terms by the Tenant and Pacific Place Holdings Ltd.
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31. SIGNAGE
The Tenant shall have the right to erect signage as described in
Section 2.4 of the Lease.
32. TITLE MATTERS
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 the title to the Site those encumbrances described in Schedule
"E" (Part 1) hereto and, 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.
33. NOTICES
(a) Notice
All notices to be given hereunder shall be in writing and may be
served personally or forwarded by registered or certified mail, return
receipt requested or may be forwarded by private overnight delivery
service or by facsimile, provided that a receipt or proof of delivery
thereof can be produced and shall be addressed to the respective
parties as follows:
(i) to the Landlord:
PCI Properties Corp.
1700 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
with a copy delivered concurrently to:
Xxxxxxx Xxxxx
Business Lawyers
1900 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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(ii) to the Tenant:
Pivotal Corporation
300 - 000 Xxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy delivered concurrently to:
Xxxx, Bird
Barristers and Solicitors
0000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
or to such other address as may be contained in a notice from
either party to the other given pursuant to this clause 33.
(b) Effectiveness of Notice
Notice shall be deemed given when delivered or when receipt is
refused.
34. SUCCESSORS AND ASSIGNS
The covenants, conditions and agreements contained in this Offer to
Lease shall be binding upon and shall enure to the benefit of the
Landlord and the Tenant and their respective permitted successors and
assigns.
35. OFFER TO LEASE SHALL GOVERN
The provisions of this Offer to Lease formed by the acceptance of this
Offer to Lease by the Landlord shall, except as hereinafter provided,
survive the execution of the Lease. 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, provided that until
the Lease is executed and delivered, the provisions of this Offer to
Lease shall govern.
36. AGENCY DISCLOSURE
(a) The Tenant has an agency relationship with CB Xxxxxxx Xxxxx
Limited (Agent) and Xxxx Ayrton (Salesperson) and Xxxxx Xxxxx
(Salesperson) for this Lease negotiation.
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(b) The Landlord has an agency relationship with CB Xxxxxxx Xxxxx
Limited (Agent) and Xxxx Ayrton (Salesperson) and Xxxxx Xxxxx
(Salesperson) and Xxx Xxxxx (Salesperson) in the sale of the
Building and the Site to the End Investor.
37. FACSIMILE TRANSMISSION
A party hereto may signify its agreement to the terms hereof by
facsimile transmission. A facsimile of this Offer to Lease received by
a party hereto which shows the signature(s) of the authorized
signatory(ies) of the other party will be good proof of execution by
that other party.
38. TIME FOR ACCEPTANCE
This Offer to Lease is open for acceptance until 3:00 p.m. Pacific
Time, on July 31, 2000, after which time, if not accepted by the
Tenant, this Offer to Lease shall be null and void. Upon execution of
this Offer to Lease (Restated), the Offer to Lease dated May 23, 2000
shall be automatically terminated and at an end.
DATED at Vancouver, British Columbia, this ______ day of July, 2000.
PIVOTAL CORPORATION
Per:___________________________ _____________________________
(Authorized Signatory) Witness
We hereby accept this Offer to Lease and agree to be bound by the terms and
conditions contained herein.
DATED at Vancouver, British Columbia, this 31st day of July, 2000.
PCI PROPERTIES CORP.
Per:___________________________ _____________________________
(Authorized Signatory) Witness
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SCHEDULE "A"
SITE PLAN
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SCHEDULE "B"
BASE BUILDING WORK
[To be attached]
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LANDLORD/TENANT
SCHEDULE "C"
RENDERING OF THE BUILDING
INITIAL
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LANDLORD/TENANT
SCHEDULE "D"
LEASE
INITIAL
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LANDLORD/TENANT
SCHEDULE "E"
PART 1
ENCUMBRANCES TO BE DISCHARGED
1. Section 219 Covenant BG426186
2. Section 219 Covenant BG426191
3. Section 219 Covenant BG426192 (BM268189)
4. Section 219 Covenant BG426198
5. Section 219 Covenant BG426205 (BK209354 and BL261871)
6. Option to Purchase BG426206 (BK209355 and BL261872)
7. Section 219 Covenant BG426207 (BK209356 and BL261873)
8. Section 219 Covenant BG426208 (BK209363)
9. Section 000 Xxxxxxxx XX000000
10. Section 000 Xxxxxxxx XX000000
11. Section 000 Xxxxxxxx XX000000
12. Section 219 Covenant BG426219 (BK320655 and BM268178)
13. Section 219 Covenant BG426224
14. Section 219 Covenant BG426231
15. Mortgage BK372839
16. Option to Purchase BM34056
17. Mortgage BN285252
18. Assignment of Rents BN285253
INITIAL
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LANDLORD/TENANT
19. Mortgage BN294061
20. Option to Purchase BN294063
PART 2
ENCUMBRANCES FOR LANDLORD TO INDEMNIFY FOR UNTIL
MATTERS CONTAINED THEREIN ARE COMPLETED
1. Easement and Indemnity Agreement R103403
2. Easement GB48625
3. Equitable Charge GD114771 (GH426165, BN281110 and BH411859)
4. Equitable Charge BG266332 (BG426166 and BN281111)
5. Equitable Charge BG426163 (BN281115 and BN315895)
6. Section 219 Covenant BG426216
7. Section 219 Covenant BG426219
8. Section 219 Covenant BG426224
9. Section 219 Covenant BG426331
INITIAL
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LANDLORD/TENANT
2
