exv10w33



 


EXHIBIT 10.33




AMENDING AGREEMENT




THIS AGREEMENT dated as of the 30th day of October, 2003.




AMONG:




	 	 	 
	ONTREA INC.	 	 
	 	 	 
	( the “Landlord”)	 	 
	 	 	 
	 	 	
OF THE FIRST PART;
	 	 	 
	- and -	 	 
	 	 	 
	ELECTRONIC ARTS (CANADA), INC.
	 	 	 
	(the “Tenant”)	 	 
	 	 	 
	 	 	
OF THE SECOND PART;
	 	 	 
	- and -	 	 
	 	 	 
	ELECTRONIC ARTS INC.	 	 
	 	 	 
	(the “Indemnifier”)	 	 
	 	 	 
	 	 	
OF THE THIRD PART






               WHEREAS pursuant to a lease dated as of October 7, 2002 ( the “Original
Lease”) between the Landlord and the Tenant, the Landlord leased to the Tenant
the 17th, 18th , 19th and 20th floors in the building municipally known as 250
Howe Street on the terms and conditions more particularly set forth herein;




               AND WHEREAS pursuant to an indemnity agreement dated the 6th day of December,
2002 (the “Indemnity Agreement”) between the Landlord and the Indemnifier, the
Indemnifier has agreed to the indemnify the Landlord with respect to the
obligations of the Tenant under the Original Lease on the terms and conditions
more particularly set forth therein;




               AND WHEREAS the Original Lease, as amended and /or supplemented by letter
agreements dated October 7, 2002, January 6, 2003 and March 28, 2003 is
hereinafter, collectively, referred to as the “Lease”;




               AND WHEREAS all capitalized terms used herein, which are not otherwise defined
herein, shall have the meanings ascribed thereto in the Lease;




               AND WHEREAS pursuant to a letter agreement dated October 8, 2003 (the
“Expansion Letter”) between the Landlord and the Tenant, the Landlord has
agreed to lease to the Tenant and the Tenant has agreed to lease from the
Landlord approximately 13,555 square feet of Rentable Area on the 12th floor of
the Building on the terms and conditions more particularly set forth therein;




               AND WHEREAS the Landlord and the Tenant have agreed to enter into this Agreement
in order to amend the Lease so as to incorporate the terms of the Expansion
Letter;




               AND WHEREAS the Indemnifier has agreed to enter into this Agreement for the
purposes of acknowledging and confirming, inter alia, that the Indemnity
Agreement shall be amended in order to apply to all obligations relating to the
12th Floor Expansion Premises (as hereinafter defined).





 








 



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               NOW THEREFORE witnesseth that in consideration of the sum of TWO DOLLARS ($2.00)
paid by each party hereto to the others and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
the each of parties), the parties hereby acknowledge, confirm and agree as
follows:




	1.	 	The parties hereby acknowledge, confirm and agree that the
foregoing recitals are true in substance and in fact.





	2.	 	The Lease is amended effective the date first above written (the
“Effective Date”) as follows:





	(a)	 	Section 1.01 of the Lease is hereby amended by adding the
following paragraph at the end thereof:





	 	 	“Notwithstanding the foregoing, the Premises shall be deemed to
include, form and after the Start Date, approximately 13,555 square
feet of Rentable Area on the 12th floor of the Building as outlined
in red on Schedule “B-2” attached hereto (the “12th
Floor Expansion Premises”). The Rentable Area of the Premises other than the 12th Floor Expansion
Premises (such remaining portion being hereinafter referred as the
“Original Premises”) has been certified to be 51,676 square feet of
Rentable Area. The Rentable Area of the 12th Floor Expansion
Premises shall be subject adjustment in accordance with Section 2.09
of the Lease.”;





	(b)	 	Section 1.02 of the Lease is hereby amended by deleting such section
in its entirety and by replacing the same with the following:





	 	 	“The Terms of this Lease is: (i) with respect to the Original Premises,
ten (10) years from the Commencement Date to and including
April 30, 2013 (the
“Expiry Date”); and (ii) with respect the 12th Floor Expansion Premises, eight
(8) years and 11 (eleven) months commencing of June 1, 2004 and expiring on
the Expiry Date”





	(c)	 	Section 1.03 of the Lease is hereby amended by adding the following
paragraph at the end thereof:





	 	 	“Notwithstanding anything else to the contrary contained herein, this
Section 1.03 shall apply to the 12th Floor Expansion Premises, subject to the
following modifications:





	 	(i)	 	the Possession Date with respect of the 12th Floor Expansion Premises (the
“12th Floor Possession Date”) is the (2nd) Business Day following the
satisfaction or waiver by the Landlord and the Tenant of their respective
conditions set forth in a letter between their Landlord and the Tenant dated
October 8, 2003;






	 	(ii)	 	the Tenant shall not be entitled to install any additional internal
stairwells;






	 	(iii)	 	the 6th paragraph of Section 1.03 shall not apply to the 12th Floor
Expansion Premises;






	 	(iv)	 	the amount of the leasehold improvements allowance payable in connection
with the 12th Floor Expansion Premises shall be $70.00 per square foot of
Rentable Area and not $57.00 per square foot of Rentable Area and such
allowance shall otherwise, for greater certainty, be payable in accordance with
the terms of this section 1.03.”






	(d)	 	Section 2.02 of the Lease is hereby amended by deleting the same in
its entirety and by replacing the same with the following:





	 	 	“Except as otherwise expressly provided for in this Lease, the Tenant
shall pay Net Rent in the sum per annum, payable in equal consecutive
monthly installments in advance on the first day of each calendar month
of the Term as follows:







 









 




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	Original Premises:	 	 
	 	 	 
	Years 1-5	 	
$29.00 per square foot of Rentable Area
of the Premises per annum; and
	 	 	 
	Years 6-10	 	
$31.00 per square foot of Rentable Area of
the Premises per annum
	 	 	 
	12th Floor Expansion Premises	 	 
	 	 	 
	Commencement Date — April 30, 2008	 	
$27.50 per square foot of Rentable Area
of the Premises per annum
	 	 	 
	May 1 2008 — April 30, 2013	 	
$29.50 per square foot of Rentable Area
of the Premises per annum






	 	 	As soon as reasonably possible after completion of the 12th Floor
Expansion Premises, the Landlord shall measure the Rentable Area of the
Premises and shall calculate the Rentable Area of the 12th Floor
Expansion Premises and the Rent with respect thereto shall be adjusted
accordingly. The Tenant acknowledges that the Rent with respect to the
Original Premises has been adjusted based on a Rentable Area of 51,676
square feet”.





	(e)	 	Section 11.01 of the Lease is hereby amended by adding the following
paragraph at the end of the first paragraph thereof:





	 	 	“Notwithstanding anything else to the contrary contained herein, the
Tenant shall from and after the Start Date be entitled to license from
the Landlord up to an additional twelve (12) unreserved parking permits
(the “Additional Parking Permits”) for the Parking Facilities serving the
Complex at the prevailing rates charged from time to time by the Parking
Facilities operator. The Tenant shall notify the Landlord in writing by
no later than March 1, 2004 as to the actual number of Additional Parking
Permits it will require for the Term. The Tenant shall be entitled
after June 1, 2005 to reduce, on a quarterly basis, the Additional
Parking Permits by giving the Landlord thirty (30) days’ prior written
notice. If the Tenant reduces its number of Additional Parking Permits,
the Tenant shall be entitled, subject to availability, to increase on a
quarterly basis, on no less than thirty (30) days’ notice, the number of
Additional Parking Permits up to the maximum number of twelve (12)”.





	(f)	 	Schedule “C” of the Lease is hereby amended in the following manner:





	 	(i)	 	the definition of “Commencement Date” is hereby amended by
deleting the same and by replacing the same with the following:






	 		 	“9. “Commencement Date” means (i) with respect to the Original
Premises, May 1, 2003; and (ii) with respect to the 12th Floor
Expansion Premises, June 1, 2004, provided, however, that if the
12th Floor Possession Date should be delayed beyond November 9,
2003, the Commencement Date shall be extended by each day that the
Possession Date is so delayed.”






	 	(ii)	 	the definition of “Possession Date” is hereby amended by
deleting the same in its entirety and by replacing the same with the
following:






	 		 	“36. “Possession Date” means: (i) with respect to the Original
Premises, November 15, 2002; and (ii) with respect to the 12th
Floor Expansion Premises, the 12th Floor Possession Date”






	 	(iii)	 	the definition of “Premises” is hereby amended by adding the
following sentence at the end thereof:


















 




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	 		 	“For greater certainty, prior to the
Start Date, “Premises” means
the Original Premises and from and after the Start Date,
“Premises” means the Original Premises and the 12th floor
Expansion Premises.”






	 	(iv)	 	Schedule “C” is amended by adding the following definition as
paragraph 44B thereof.






	 		 	“44B. “Start Date” means the Commencement Date with respect to the
12th floor Expansion Premises.”






	(g)	 	Schedule “F” is hereby amended in the following manner:





	 	(i)	 	Section 1 is hereby amended by adding the following sentence
at the end thereof:






	 		 	“Notwithstanding anything else herein contained to the contrary;
this Section 1 shall not apply to the 12th Floor Expansion
Premises.”






	 	(ii)	 	Section 2 of Schedule “F” is hereby amended by adding the
following paragraph at the end thereof:






	 		 	“The Tenant shall be entitled from and after the Start date, at
the Tenant’s sole cost and expense, to one (1) additional Signage
Option at a location to be mutually agreed upon by the Landlord
and the Tenant, acting reasonably, and otherwise on the terms and
conditions generally applicable to all Signage Options. In
addition to the foregoing right, if the Tenant shall at any time
lease more Rentable Area in the Building than any other tenant,
and subject to PricewaterhouseCoopers LLP, PWC Management Services
and any affiliate of either of them collectively leasing and
occupying at any time during the Term less than 70,000 square feet
of Rentable Area in the Building, the Tenant shall, at the
Tenant’s sole cost and expense, have the right to exclusive roof
top signage on the Building and naming rights to the Building,
subject to complying with the Landlord’s design criteria for the
Building and all local municipal requirements and approvals. All
such signage shall be installed and maintained at the Tenant’s
sole cost and expense and at the expiry or earlier termination of
the Term, such additional signage shall at the Tenant’s expense, be removed by either the Tenant or the Landlord, at the Landlord’s option,
and any damage caused to the Building or the Lands by such removal
shall be the responsibility of the Tenant. The foregoing right
shall only be granted to the Tenant if the Tenant is Electronic
Arts (Canada), Inc. or the corporation which owns a majority of
the issued and outstanding voting shares of all classes of
securities issued by Electronic Arts (Canada), Inc. (the “EA
Parent”) and is not assignable to any other Person.”






	 	(iii)	 	Section 5 of Schedule “F” of the Lease is hereby amended by
adding the following sentence at the end thereof:






	 		 	“For greater certainty, this termination right also applies to the
12th Floor Expansion Premises and any leasehold improvements
allowances and brokerage fees applicable thereto. In this regard,
the reference to the “Commencement Date” is a reference to May 1,
2003 notwithstanding that the Commencement Date with respect to
the 12th Floor Expansion Premises is June 1, 2004.”






	 	(iv)	 	Section 6 of Schedule “F” of the Lease is hereby amended by
adding the following sentence at the end thereof:






	 		 	“For greater certainty, this extension right also applies to the
12th Floor Expansion Premises.”






	 	(v)	 	Schedule “F” is hereby amended by adding the following as a
new Section 11 thereto:


















 


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	 	“11.	 	Right of First Opportunity to Purchase






	 		 	If at any time during the Term or any renewals thereof, the Landlord wishes to
dispose of the Building to a third party, the Landlord shall first give written
notice to the Tenant (the “Disposition Notice”) granting a right of first
negotiation (the “Right of First Opportunity”) to the Tenant to purchase the
Building. The Tenant shall give written notice to the Landlord (the “Election
Notice”) within five (5) Business Days following receipt of the Disposition
Notice from the Landlord (the “Notice Period”), of its interest in being the
purchaser in connection with the sale and setting out the purchase price and
other fundamental business terms upon which it is prepared to purchase the
Building. The Landlord and the Tenant shall have ten (10) Business Days from
the date of delivery by the Tenant to the Landlord of the Election Notice (the
“Acceptance Period”) to negotiate in good faith and attempt to reach an
agreement in writing on mutually satisfactory terms and conditions with respect
to the sale (a “Landlord-Tenant Purchase Agreement”). If the Tenant fails to
deliver the Election Notice to the Landlord by the end of the Notice Period or
if the Tenant otherwise indicates that it does not intend to give the Election
Notice within the Notice Period, the Right of First Opportunity shall be at an
end and shall no longer apply at any other time during the Term or any renewals
thereof and the Landlord shall have the unfettered right to dispose of the
Building at any time. If the Tenant does give to the Landlord the Election
Notice but if the parties do not enter into a Landlord-Tenant Purchase
Agreement by the end of the Acceptance Period, the Landlord shall have the
unfettered right to complete a sale of the Building to any third party,
provided that: (i) the sale shall be completed within twelve (12) months
following expiration on the Notice Period (if the Election Notice is not given)
or the Acceptance Period (if the Election Notice is given); and (ii) the
purchase price shall be no less than 95% of the sale price set forth in the
Election Notice, failing which the Right of First Opportunity shall continue to
apply on the same terms and conditions. This right is personal to Electronic
Arts (Canada), Inc. or the EA Parent (but only if Electronic Arts (Canada),
Inc. is a wholly-owned subsidiary) provided they lease a minimum of five (5)
floors in the Building. This right applies only to the Building and does not
apply if Granville Square and the Building are to be sold together. The Right
of First Opportunity shall only apply if the Tenant is not in Default under
this Lease at the time that the Landlord shall determine that it wishes to
dispose of the Building to a third party. For greater certainty, the Landlord
shall also be entitled without triggering the Right of First Opportunity to:
(i) dispose of the Building, or any interest therein, to any Person which is
not a third party; and (ii) dispose of any partial interest in the Building to
any Person, including, without limitation, a third party.”






	 	(h)	 	The Lease is hereby amended by adding Schedule “B-2” attached hereto as
Schedule “B-2” to the Lease.






	3.	 	The Landlord and the Tenant agree that, subject to the foregoing
amendments, the Lease remains in full force and effect, unamended, and
time remains of the essence thereof.





	4.	 	The Indemnifier hereby acknowledges, confirms and agrees that: (i) the
foregoing amendments to the Lease in no way prejudice, derogate or
otherwise vitiate any of the terms of the Indemnity Agreement; (ii) all
references to the “Lease” (as defined in the Indemnity Agreement) shall be
deemed to mean from and after the Effective Date, the Lease, as amended by
this Amending Agreement; and (iii) for greater certainty, any and all
obligations indemnified by the Indemnifier pursuant to the Indemnity
Agreement shall from and after the Start Date, extend to the Tenant’s
obligations under the Lease with respect to the 12th Floor Expansion
Premises.





	5.	 	This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable
therein.














 


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	6.	 	Any notice, consent or other instrument which may be or is required to be
given under this Lease shall be in writing and shall be delivered in
person or sent by facsimile or by registered mail postage prepaid,
addressed: (a) if to the Landlord: c/o The Cadillac Fairview Corporation
Limited, 20 Queen Street West, 5th Floor, Toronto, Ontario, M5H3R4,
Attention: Executive Vice President, Property Management, facsimile no.
(416) 598-8222, with a copy to the Building Manager, (b) if to the Tenant,
at the Premises to the attention of the Chief Financial Officer with a
copy to Bull, Housser & Tupper, Barristers & Solicitors, 3000-1055 West
Georgia Street, Vancouver, B.C. V6E 3R3, facsimile no. (604) 641-4949,
(Attention: George Burke); and (c) to the Indemnifier: c/o Electronic Arts
(Canada), Inc., at the Premises to the attention of the Chief Financial
Officer with a copy to Bull, Housser & Tupper, Barristers & Solicitors,
3000-1055 West Georgia Street, Vancouver, B.C. V6E 3R3, facsimile no.
(604) 641-4949, (Attention: George Burke). Any such notice or other
instrument shall be deemed to have been given and received on the day upon
which personal delivery or any facsimile delivery is made if during normal
business hours on a Business Day, failing which, it shall be deemed to be
received on the next following Business Day or, if mailed, then 3rd
Business Day following the date of mailing. Either party may give notice
to the other of any change of address and after the giving of such notice,
the address therein specified is deemed to be the address of such party
for the giving of notices. If postal service is interrupted or
substantially delayed, all notices or other instruments shall be delivered
in person.





	7.	 	This Agreement may be executed in several counterparts, each of which
so executed will be deemed to be an original and such counterparts
together will constitute one and the same instrument. Counterparts may be
executed either in original or fax form and the parties agree to adopt any
signatures received by facsimile machine or other means of electronic
communication as original signatures of the parties; provided however,
that any party providing its signature in such manner shall promptly
forward to the other party an original of the signed copy of this Agreement
which was so delivered.





	8.	 	All of the covenants and agreements in this Agreement shall be binding
upon the parties hereto and their respective successors and assigns and
shall enure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns pursuant to the
terms and conditions of the Lease or the Indemnity Agreement, as the case
may be.





     IN WITNESSETH WHEREOF the parties have executed this Agreement effective the
date aforementioned.




	 	 	 	 	 
	 	 	ONTREA INC.
	 	 	 	 	 
	 	 	
Per:
	 	/s/ John M. Sullivan
	 	 	 	 	

	 	 	
Name:	 	John M. Sullivan
	 	 	
Title:	 	Senior Vice President
	 	 	 	 	 
	 	 	
Per:
	 	/s/ Jeff Hess
	 	 	 	 	

	 	 	
Name:	 	Jeff Hess
	 	 	
Title:	 	Officer
	 	 	 	 	 
	 	 	I/We have authority to bind the Corporation.



















 




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	 	 	ELECTRONIC ARTS (CANADA), INC.
	 	 	 	 	 
	 	 	
Per:
	 	/s/ Howard Donaldson
	 	 	 	 	

	 	 	
Name:
	 	HOWARD DONALDSON
	 	 	
Title:
	 	Chief Financial Officer
	 	 	 	 	Electronic Arts (Canada) Inc.
	 	 	 	 	 
	 	 	
Per:	 	 
	 	 	 	 	

	 	 	
Name:	 	 
	 	 	
Title:	 	 
	 	 	 	 	 
	 	 	I/We have authority to bind the Corporation.

	 	 	 	 	 
	 	 	ELECTRONIC ARTS INC.
	 	 	 	 	 
	 	 	
Per:
	 	/s/ Bryan Neider
	 	 	 	 	

	 	 	
Name:	 	Bryan Neider
	 	 	
Title:
	 	CFO, Worldwide Studios
	 	 	 	 	 
	 	 	
Per:
	 	 
	 	 	 	 	

	 	 	
Name:	 	 
	 	 	
Title:
	 	 
	 	 	 	 	 
	 	 	I/We have authority to bind the Corporation.



















 




Schedule “B-2”



12th Floor