EXHIBIT 10.10.1
AMENDMENT TO LEASE
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THIS AMENDMENT TO LEASE is dated for reference and made as of June 22,
2000. BETWEEN:
LAURELTON INVESTMENTS LTD. and KBK No. 197 VENTURES LTD.
(collectively, the "Lessor") OF THE FIRST PART
AND:
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP (CANADA), INC.
(the "Lessee")
OF THE SECOND PART
AND:
SEAGATE SOFTWARE, INC.
(the "Indemnifier") OF THE THIRD PART
WITNESSES THAT WHEREAS:
A. By a lease (the "Lease") dated September 27, 1999 made between the Lessor,
the Lessee and the Indemnifier, the Lessor demised and leased unto the Lessee
certain premises (the "Original Premises") comprising approximately 95,174
square feet more or less of Rentable Area, on the 1st, 2nd and 3rd floors of a
building (the "Building") located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. as
more particularly described in the Lease and therein called the Demised
Premises, with an option to lease 14,645 square feet more on the 3rd floor of
the Building;
B. The Lessee has agreed to lease from the Lessor and the Lessor has agreed to
lease to the Lessee the Main Floor Expansion Leased Premises (as herein defined)
on the terms and conditions herein set forth; and
C. The Lessor and the Lessee have agreed to make certain other changes to the
Lease;
NOW THEREFORE THE Lessor, THE Lessee AND THE INDEMNIFIER, in consideration of
the premises, the sum of $1.00 paid by each party to the others, the mutual
covenants and agreements herein contained, and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged) and
subject to the terms and conditions herein set out, covenant and agree as
follows:
1. Interpretation
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1.1 All terms defined in the Lease and used herein shall have the respective
meanings ascribed to them in the Lease unless the context otherwise requires or
unless otherwise stated herein. The defined terms in the recitals to
this Amendment to Lease shall have such meaning throughout this Amendment to
Lease, unless otherwise stated herein.
1.2 In this Amendment to Lease:
(a) "Main Floor Expansion Leased Premises" means those premises located on
the 1st floor for the Building as shown outlined in black on the plan
attached hereto as Schedule "A" comprising approximately 34,000 square
feet of Rentable Area; and
(b) "Amendment Date" means April 1, 2001.
2. Main Floor Expansion Leased Premises and Net Rent
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(a) Effective as of the Amendment Date the Lessor shall lease to the
Lessee the Main Floor Expansion Leased Premises for the unexpired
residue of the Term, together with any options to renew, and otherwise
on the same terms and conditions as contained in the Lease as hereby
amended,
(b) The Lessor shall give vacant possession of the Main Floor Expansion
Leased Premises to the Lessee on January 1, 2001. From the date the
Lessee receives vacant possession of the Main Floor Expansion Leased
Premises to the Amendment Date, the Lessee shall occupy the Main Floor
Expansion Leased Premises in accordance with and subject to the terms
and conditions contained in the Lease except that the Lessee shall not
be required, in respect of the Main Floor Expansion Leased Premises
only, to pay Basic Rent nor make contributions towards Taxes and
Operating Costs until the Amendment Date.
2.1 Amendments to Lease
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The Lease is hereby amended, with effect as of the Amendment Date, as
follows:
(a) Section 1.1 of the Lease is amended by adding the following
definition:
"Main Floor Expansion Leased Premises' means the premises in the
Building and described in Column 1 in Section 2.1 and identified as
such on Schedule "A" hereto."
(b) The definition of "Expansion Space" in section 1.1 is deleted and
replaced with the following:
"Expansion Space' means the Main Floor Expansion Leased Premises, the
First Expansion Leased Premises, the Second Expansion Leased Premises
and the Third Expansion Leased Premises (but does not include any
space leased pursuant to the Right of First Offer in section 16.1)."
(c) The definition of "Lessor's Repairs/Work" in section 1.1 is deleted
and replaced with the following:
"Lessor's Repairs/Work' means the work to be performed by the Lessor
and described in sections 4.7 and 4.7 A."
(d) Section 2.1 of the Lease is amended by adding the following
information to the columns:
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"Column 1 Column 2 Column 3 Column 4 Column 5
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Premises/Rentable Possession Commencement Expiry Term
Area (sq. ft.) Date Date Date
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34,000 - main floor January 1, April 1, 2001 May 31, 2007 6 years, 2
(the "Main Floor 2001 months"
Expansion Leased
Premises")
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(e) A new section 4.7(A) is added to the Lease as follows:
"4.7A - Lessor's Repair/Work for the Main Floor Exoansion Leased
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Premises
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The Main Floor Expansion Leased Premises are leased by the Lessee on
an "as is where is" basis. Notwithstanding the foregoing, the Lessor
shall, at its own cost, provide those repairs and improvements for the
Main Floor Expansion Leased Premises detailed as follows:
(a) Demolition. Demolition of all interior partitions (excluding the
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washrooms) and removal of flooring coverings and the T-bar
ceiling.
(b) New Demising Walls. Construction of demising walls consistent
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with the demising walls constructed for the Initial Leased
Premises as detailed in section 4.7(f) of the Lease.
(c) Windows. Installation of up to one exterior window per full bay,
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where desired by the Lessee, excluding bays where the washrooms
or stairwells are located. Exterior windows installed along the
▇▇▇▇▇▇ Street frontage will have the same dimensions and sill
heights as those installed for the Lessee on the second floor.
Some or all of any exterior windows installed on the Mainland
Street frontage will have sill heights higher than those
installed on the second floor, and the possible vertical
dimension of the windows will decrease somewhat moving towards
the middle of the Building on Mainland Street.
The Lessor and the Lessee agree that contractors for each of the
Lessee and the Lessor may undertake work within the Main Floor
Expansion Leased Premises concurrently. Prior to the Possession
Date for the Main Floor Expansion Leased Premises the Lessee and
the Lessor will each, acting reasonably, prepare, approve and
commit to a schedule of dates by which the Lessor's Repairs/Work
must be completed, subject to Force Majeure. The Lessor agrees
that the Commencement Date for the Main Floor Expansion Leased
Premises will be deferred for a period of time equivalent to any
period of delay caused by the Lessor's failure to complete the
Lessor's Repairs/Work in accordance with the approved schedule,
but the Expiry Date shall remain the same and will not be
extended. Notwithstanding the foregoing, the Lessee acknowledges
that: 1) drywalling and taping of new demising walls cannot
commence until the Lessee's contractor completes electrical and
communications work in said new walls; and 2) exterior windows
cannot be installed by the Lessor until the Lessee and Lessor
jointly
establish the number of, location of, size and sill height of
said windows, and that upon establishment of said design
criteria, a reasonable amount of time is required to order
windows and carry out installation of same. Therefore the Lessee
agrees that the delays suffered by the Lessor in the completion
of drywalling and taping of the new demising walls or
installation of exterior windows (collectively the "Seagate
Dependant Work") as a result of delays in the Lessee's electrical
work, communications work or exterior wall design work, shall not
result in an extension of the Commencement Date provided that the
Lessor carries out the Seagate Dependent Work in a reasonable
time period upon being in a position to do so."
(f) A new section 4.10 is added to the Lease as follows:
"4.10 - Lessor's Seismic Upgrading
The Lessor shall, at its own cost, seismically upgrade the
Building on or before December 31, 2001 to achieve not less than
75% of the current Vancouver building bylaw seismic requirements
in both directions, as described in points 1 through 5 of the
seismic upgrading recommendations prepared by ▇▇▇▇▇▇▇ ▇▇▇▇ of
Omnicron which are attached as Schedule "D" to the Lease."
(g) A new section 4.11 is added to the Lease as follows:
"4.11 - Deferment of Lessor's Repairs/Work on First Expansion
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Premises Improvements
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The Lessor and Lessee acknowledge and agree that the Lessee has
requested that the Lessor defer the date that the Lessor
commences the Lessor's Repairs/Work on the First Expansion Leased
Premises from August 1, 2000 (the "Possession ("Date") to
September 1, 2001 (the "Deferred Date"), the Deferred Date being
the date the Lessor is required to commence the Lessor's
Repairs/Work on the Third Expansion Leased Premises. It is the
Lessee's intention that the Lessor's Repairs/Work be carried out
to the First and Third Expansion Leased Premises by the Lessor
concurrently. Accordingly, during the period from the Possession
Date to the Deferred Date, the Lessee agrees to accept the First
Expansion Leased Premises in an "as is" condition. For greater
certainty, the Possession Date and Commencement Date for the
First Expansion Leased Premises shall not be affected by this
deferment and shall remain as described in section 2.1 of the
Lease.
During the four month period from the Deferred Date to December
31, 2001, the Lessor shall be given possession of the First
Expansion Leased Premises for the purposes of carrying out the
Lessor's Repairs/Work to such area, and the Lessee shall be bound
to pay Rent for the First Expansion Leased Premises in accordance
with the Lease during such four month period, without set-off or
deduction. For greater certainty, the Loan to be paid by the
Lessor to the Lessee pursuant to sections 4.1 and 4.2 and the
HVAC inducement to be paid by the Lessor to the Lessee pursuant
to section 4.3 will not be payable until the Deferred Date in
accordance with the terms of those sections."
(h) The parties agree that sections 4.1 and 4.2 relating to the
Lessee Loan, section 4.3 relating to the HVAC inducement, section
4.7(a), (b), (c), (d) and (e) relating to
electrical service, lighting, lessee's emergency power equipment,
demolition and windows, section 4.8 relating to cash inducement
in lieu of Lessor's Repairs/Work, section 4.9 relating to
allowances for leasehold improvements and Schedule "C" will not
apply to the Main Floor Expansion Leased Premises.
(i) The plan contained on page 1 of Schedule "A" of the Lease is
deleted and the plan contained in Schedule "A" of this Amendment
to Lease is substituted in its place.
(j) The schedule marked Schedule "D" attached to this Amendment to
Lease is attached to and shall form part of the Lease as Schedule
"D".
3. Consent of Indemnifier
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The Indemnifier hereby consents to this Amendment to Lease and hereby
ratifies and confirms its indemnity contained in the Lease, and the Indemnifier
hereby agrees that its indemnity shall remain in full force and effect in
accordance with its terms and, for greater certainty, applies to all of the
Demised Premises including, without limitation, the Main Floor Expansion Leased
Premises.
4. Demise
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For greater certainty, and in consideration of the rents, covenants
and agreements contained in the Lease as hereby amended on the part of the
Lessee to be paid, observed and performed, the Lessor does hereby demise and
lease unto the Lessee as and from the Amendment Date, the Demised Premises
including the Main Floor Expansion Leased Premises, for and during the Term of
the Lease, and any renewals thereof and the Lessee hereby covenants and agrees
to pay the rents, and observe and perform the covenants and agreements in the
Lease as hereby amended on its part to be paid, observed and performed.
5. Lease Ratified and Confirmed
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Except as hereby expressly amended the Lease is hereby ratified and
confirmed by the Lessor and the Lessee to the effect and with the intent that
the Lease and this Amendment to Lease shall be read and construed as one
document as if the Main Floor Expansion Leased Premises had been demised and
leased by the Lease together with the Original Premises all on the same terms
and conditions and subject to performance of all the covenants set forth in the
Lease, as hereby amended.
6. Enurement
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This Amendment to Lease shall enure for the benefit of and be binding
on the heirs, executors, administrators, successors and permitted assigns (as
the case may be) of the parties hereto to the same extent as binding upon the
parties hereto.
7. Execution.
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Each of the Lessor, the Lessee and the Indemnifier confirm and agree
that this Amendment to Lease has been executed by its authorized signatories and
if only one signatory has signed this Amendment to Lease, each is authorized by
its articles of incorporation or other constating documents to execute leases
(and any amendments thereto) by such sole authorized signatory and if this
Amendment to Lease is not executed under seal, each is authorized by its
articles of incorporation or other constating documents to execute leases (and
any amendments thereto) without a seal.
8. Captions
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The captions appearing in this Amendment to Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit or
enlarge the scope or meaning of this Amendment to Lease or any provision hereof.
IN WITNESS WHEREOF the Lessor, the Lessee and the Indemnifier have
executed this Amendment to Lease as of the day and year first above written.
THE CORPORATE SEAL OF LAURELTON )
INVESTMENTS LTD. was hereunto affixed in )
the presence of: )
)
)
▇▇▇▇ ▇▇▇▇ ) C/S
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Title: President )
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Authorized Signatory /s/ ▇▇▇▇ ▇▇▇▇ )
THE CORPORATE SEAL OF KBK No. 197 )
VENTURES LTD. was hereunto affixed in the )
presence of: )
)
)
▇▇▇▇ ▇▇▇▇ ) C/S
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Title: President )
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Authorized Signatory /s/ ▇▇▇▇ ▇▇▇▇ )
THE CORPORATE SEAL OF SEAGATE )
SOFTWARE INFORMATION )
MANAGEMENT (CANADA), INC. was hereunto )
affixed in the presence of: )
)
▇▇▇▇▇ ▇. ▇▇▇▇▇ ) C/S
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Title: Vice President - Legal Affairs )
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Authorized Signatory /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ )
THE CORPORATE SEAL OF SEAGATE )
SOFTWARE, INC. was hereunto affixed in the )
presence of: )
)
▇▇▇▇▇ ▇. ▇▇▇▇▇ ) C/S
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Title: Vice President - Legal Affairs )
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Authorized Signatory /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ )