ASSIGNMENT OF LEASE
THIS AGREEMENT is dated the 19th day of January, 2001
A M O N G:
TECHWEST MANAGEMENT INC.
(the "Assignor")
OF THE FIRST PART,
- and -
SIDEWARE SYSTEMS INC.
(the "Assignee")
OF THE SECOND PART,
- and -
BRAINTECH, INC.
(the "Indemnifier")
OF THE THIRD PART,
- and -
PACIFIC CENTRE LEASEHOLDS LIMITED
(the "Landlord")
OF THE FOURTH PART.
RECITALS:
A. By a lease dated the 25th day of June, 1999 (the "Lease"),
the Landlord leased to the Assignor, as Tenant, for and during a
term, (the "Term"), of three (3) years commencing on the 1st day
of July, 1999 (the "Commencement Date"), and expiring on the 30th
day of June, 2002 certain premises, located on the 16th floor
comprising a Rentable Area of approximately three thousand nine
hundred and nine (3,909) square feet for the entire Term and an
additional Rentable Area of approximately four thousand four
hundred and sixteen (4,416) square feet commencing the 1st day of
December, 2000 and for the balance of the Term (collectively
hereinafter referred to as the "Premises") as shown outlined in
red on the plans attached to the Lease as Schedule "B" and
"B1", located at 777 Dunsmuir Street (the "Building"), in the
City of Vancouver, in the Province of British Columbia;
B. The Lease contains a covenant on the part of the Tenant not
to assign the Lease or sublet the Premises without the Landlord's
consent;
C. The Assignor has agreed to assign the Lease to the Assignee
subject to obtaining the Landlord's consent to such assignment
and the Assignor has applied to the Landlord for the Landlord's
consent to assign the Lease to the Assignee, subject to and upon
the terms and conditions herein set out;
D. The Landlord has agreed to release and discharge Braintech,
Inc. as indemnifier subject to and upon the terms and conditions
hereinafter set out; and,
E. The Landlord has agreed to grant its consent to the within
assignment as of the 1st day of January, 2001, (the "Effective
Date"), subject to the terms and conditions herein set out.
1. CONSIDERATION - The consideration for this Agreement is the
mutual covenants and agreements between the Parties to this
Agreement and the sum of Two Dollars ($2.00) that has been
paid by each of the Parties to each of the others, the
receipt and sufficiency of which is acknowledged.
2. RECITALS - The Parties hereto hereby acknowledge, confirm
and agree that the foregoing recitals are true in substance
and fact.
3. ASSIGNMENT - The Assignor hereby transfers, sets over and
assigns unto the Assignee as of and from the Effective Date,
the Premises, and all privileges and appurtenances thereto
belonging, together with the unexpired residue of the Term,
and the Lease and all benefits and advantages to be derived
therefrom.
TO HAVE AND TO HOLD the same unto the Assignee, subject
to the payments of the Rent as may hereafter become due and
payable under the terms of the Lease and the observance and
performance of the covenants and conditions of the Tenant
contained in the Lease.
For the purpose of this Agreement, "Rent" includes Net Rent
and Additional Rent payable pursuant to the Lease.
4. ASSIGNOR'S COVENANTS - The Assignor covenants and agrees
with the Assignee that:
(a) Despite any act of the Assignor, the Lease is a good,
valid and subsisting Lease and the Rent thereby reserved
has been duly paid up to the Effective Date and the
covenants and conditions therein contained have been duly
observed and performed by the Assignor up to the
Effective Date.
(b) The Assignor has good right, full power and absolute
authority to assign the Premises and the Lease in the
manner aforesaid, according to the true intent and
meaning of this Agreement, free and clear of all liens,
mortgages, charges and encumbrances of any kind
whatsoever.
(c) Subject to the payment of Rent and to the observance and
performance of the terms, covenants and conditions
contained in the Lease on the part of the Tenant therein
to be observed and performed, the Assignee may enter into
and upon and hold and enjoy the Premises for the residue
of the Term granted by the Lease for its own use and
benefit without any interruption by the Assignor or by
any Person whomsoever claiming through or under the
Assignor.
(d) The Assignor will from time to time hereafter, at the
request and cost of the Assignee, promptly execute such
further assurances of the Premises as the Assignee
reasonably requires.
5. ASSIGNEE'S COVENANTS -
(a) The Assignee covenants with the Assignor that:
(i) it will at all times during the balance of the Term of
the Lease pay the Rent and observe and perform the
terms, covenants and conditions contained in the Lease
respectively reserved and contained on the part of the
Tenant therein to be observed and performed.
(ii) it will indemnify and save harmless the Assignor from
all actions, suits, costs, losses, charges, demands
and expenses for and in respect of any such non-
payment, non-observance or non-performance.
(b) The Assignee hereby covenants and agrees with the
Landlord that:
(i) it will at all times during the balance of the Term of
the Lease pay the Rent reserved by the Lease and all
other payments covenanted to be paid by the Tenant
therein and at the times and in the manner provided
for in the Lease, and will observe and perform all of
the terms, covenants and conditions contained in the
Lease on the part of the Tenant therein to be observed
and performed as and when the same are required to be
observed and performed as provided by the Lease.
(ii) it will indemnify and save harmless the Landlord from
all actions, suits, costs, losses, charges, demands and
expenses for and in respect of any such non-payment or
non-observance or non-performance.
The Assignee acknowledges that it has received a copy of the
executed Lease and is familiar with the terms, covenants and
conditions contained therein.
6. LANDLORD'S CONSENT - The Landlord consents to this
assignment of the Lease from the Assignor to the Assignee as
of and from the Effective Date upon and subject to the
following terms and conditions, that:
(a) This consent does not in any way derogate from the rights
(b) The Assignor releases and waives any and all rights and
remedies to which it may be entitled at law, in equity or
as Tenant under the Lease including, without limitation,
the right to apply for relief from forfeiture or to
obtain any reassignment of the Lease.
(c) This consent does not constitute a waiver of the
necessity for consent to any further Transfer of the
Lease (which for the purpose of this Agreement includes
any Change of Control, assignment, subletting, mortgaging
or encumbering of the Lease or parting with or sharing
possession of all or any part of the Premises) which must
be completed in accordance with the terms of the Lease.
If the Assignee proposes to effect a further Transfer of
the Lease, the terms of the Lease with respect to a
Transfer shall apply to any such further Transfer.
(d) This consent is given upon the express understanding that
the Assignee shall hereafter be jointly
and severally responsible for and shall save the Landlord
harmless and indemnify it from and against all costs
including all legal costs incurred by the Landlord in
connection with the preparation of this Agreement and any
additional documentation related thereto and the
Landlord's consent to this assignment.
(e) By giving its consent pursuant to this Agreement, the
Landlord does not hereby acknowledge or approve of any of
the terms of this Agreement as between the Assignor and
Assignee except for the assignment of the Lease itself
and except for any amendments to the Lease agreed to by
all of the Parties hereunder.
(f) This assignment of the Lease is deemed not to have been
delivered to the Assignee by the Assignor until the
consent of the Landlord has been evidenced by the
execution and delivery of this Agreement by the Landlord
to both the Assignor and the Assignee.
(g) It is understood and agreed that in accordance with the
terms of the Lease the Landlord has received only an
estimated amount on account of Additional Rent payable
under the Lease and the Assignee shall, pay
to the Landlord within five (5) days after demand
therefor the amount by which the actual Additional Rent
payable pursuant to the Lease as calculated by the
Landlord exceeds the estimated Additional Rent received
by the Landlord as of the Effective Date.
(h) The Assignee shall, at its expense, promptly execute
such further documentation with
respect to the Premises as the Landlord reasonably
requires from time to time.
(i) The Assignee shall not be entitled to enter into and take
possession of the Premises until (i) it shall deliver to
the Landlord certificates of insurance on the Landlord's
standard form, or, if required by the Landlord's
Mortgagee, certified copies of each such insurance policy
which the Tenant is required to take out pursuant to the
Lease, and (ii) it shall deliver evidence to the Landlord
that it has obtained all required permits, licenses and
approvals from all governmental authorities having
jurisdiction for the carrying on by the Assignee of its
permitted business in the Premises.
(j) The Assignee acknowledges and agrees that (i) it is
accepting possession of the Premises in an "as is"
condition as of the Effective Date, (ii) the Landlord has
no responsibility or liability for making any
renovations, Alterations or Leasehold Improvements in or
to the Premises, and (iii) all further renovations,
Alterations or Leasehold Improvements in or to the
Premises are the sole responsibility of the Assignee and
shall be undertaken and completed at the Assignee's
expense and strictly in accordance with the provisions of
the Lease.
7. RELEASE
Effective as of the Effective Date, the Landlord agrees to
release and discharge Braintech, Inc. from the observance
and performance of the covenants, agreements, terms and
conditions contained in the Lease provided, however, that
nothing herein contained shall be construed as a release of
Braintech, Inc. from any obligation or liability under the
Lease, which liability or obligation had accrued prior to
the Effective Date.
8. CONFIRMATION -
The Parties hereto do in all other respects hereby confirm
that the Lease is in full force and effect, unchanged and
unmodified except in accordance with this Agreement. It is
understood and agreed that all terms and expressions when
used in this Agreement have the same meanings as they have
in the Lease. The Lease and this Agreement shall be read
and construed as one document.
9. BINDING EFFECT - This Agreement shall enure to the benefit
of the Landlord and its successors and assigns, and shall be
binding upon each of the other Parties hereto, and each of
their heirs, executors, administrators and permitted
successors and permitted assigns, respectively.
IN WITNESS WHEREOF the Parties hereto have duly executed
this Agreement as of the day and year first above written, by
affixing their respective corporate seals under the hands of
their proper signing officers duly authorized in that behalf or
by setting their respective hands and seals in their personal
capacity, as the case may be.
SIGNED, SEALED AND DELIVERED ) TECHWEST MANAGEMENT INC.
in the presence of ) (Assignor)
)
)
) Per:
) Authorized Signature
)
)
) Per:
) Authorized Signature
)
)
) SIDEWARE SYSTEMS INC.
) (Assignee)
)
)
) Per:
) Authorized Signature
)
) Per:
) Authorized Signature
)
)
) BRAINTECH, INC.
) (Indemnifier)
)
)
) Per:
) Authorized Signature
)
) Per:
) Authorized Signature
)
)
) PACIFIC CENTRE LEASEHOLDS
LIMITED
) (Landlord)
)
)
) Per:
) Authorized Signature
)
) Per:
) Authorized Signature
)
) I/We have authority to bind the
corporation