exv10w47



 



Exhibit 10.47




OFFER TO SUB-LEASE




	 	 	 	 	 
	
    
    TO:

    	 	
    PHOTON DYNAMICS CANADA INC.	 	
    (SUB-LANDLORD)
	
    
    FROM:

    	 	
    SERVICE RESULTS TECHNOLOGY INC.	 	
    (SUB-TENANT)





WE, SERVICE RESULTS TECHNOLOGY INC., hereby offer to sub-lease,
through J.J. BARNICKE LIMITED (Zarko Stojancvic 416-219-0716)
and Colliers International, your Agent(s), certain property
located at 221 Whitehall Drive, Markham, Ontario, and more
particularly described in paragraph #1 below, on the following
terms and conditions:




PROPERTY:






		
	1. 	
    The Property located in 221 Whitehall Drive, Markham, Ontario,
    comprising of 50,015 square feet of rentable industrial space,
    more or less, according to a plan attached labeled
    Schedule “A”.




TERM:






		
	2. 	
    Two (2) year five (5) months less one (1) day, from June 1,
    2005 to October 31, 2007.




DEPOSIT:






		
	3. 	
    A cheque payable to Colliers International, for the Sub-Landlord,
    as a deposit, to be held by Colliers International pending
    completion or other termination of this agreement, is attached
    hereto, in the amount of $57,975.72 including G.S.T. If this
    Offer is not accepted, the deposit shall be returned without
    interest or deduction. Otherwise the above amount shall be
    applied on account of the first month gross rental and last
    month security deposit under the Sub-Lease.


It is understood by the Sub-Landlord and the Sub-Tenant that the
Deposit cheque will not be deposited in the Agent’s Trust
account until this Offer has been accepted by both parties.




RENTAL COSTS: * As amended






		
	4. 	
    It is understood and agreed by both the Sub-Landlord and the
    Sub-Tenant that the Net Rent shall be $6.25 net per Rentable
    square foot per annum for term of the Sub-Lease, and the Net Rent
    shall be ($312,593.75) DOLLARS annually, payable to the
    Sub-Landlord in advance on the first day of each month in twelve
    (12) equal consecutive monthly installments of ($26,049.48)
    DOLLARS.




FREE RENT PERIOD:






		
	5. 	
    The Tenant shall have a Net Rent free period of 1 month being
    the first month of the Sub-Lease Term from June 1, 2005 to
    June 30, 2005. During this period, the Tenant shall not be
    obligated to pay Net Rent.




NET SUB-LEASE:






		
	6. 	
    The Sub-Tenant and the Sub-Landlord agree that rent payable
    herein shall be net in all respects are carefree to the
    Sub-Landlord and that the Sub-Tenant shall pay all costs
    relating to the Sub-leased Premises including, without
    limitation, Janitorial Costs, Utilities, Repairs and
    Maintenance, and Taxes for the Sub-leased Premises, as per the
    Head Lease.



2






 






Page 2.

		
	7. 	
    The Sub-Tenant agrees that the amount quoted by the Sub-Landlord
    for operating Expenses (T.M.I.) and Taxes for the building is
    estimated to be $2.27 per square foot for the year 2005.





USE OF PREMISES:






		
	8. 	
    The Sub-Tenant shall have the right to use the premises for
    Service, Repair and Warehousing of Computer and related Computer
    Products and any use permitted by the Head Lease, applicable
    zoning by-laws and other legislation, and approved by the
    Sub-Landlord and Landlord.




SUB-LANDLORDS WORK:






		
	9. 	
    Provided the Sub-Lease has been executed as agreed to, the
    Sub-Landlord shall supply the Premises to the Sub-Tenant on an
    “as is” basis in broom swept condition, the Sub-Tenant
    understanding and agreeing that the Landlord is not responsible
    to perform any work in the Premises whatsoever, save that the
    Sub-Landlord will, prior to the Commencement Date, ensure that
    all mechanical and electrical systems serving the Premises is in
    good working order, normal wear and tear excepted.




LEASEHOLD IMPROVEMENTS:






		
	10. 	
    The Sub-Landlord shall provide the existing carpeting and all
    other leasehold improvements in the Sub-Leased Premises at no
    cost to the Sub-Tenant and the Sub-Tenant shall be permitted to
    abandon the existing leasehold improvements at the end of the
    Sub-Lease term.
	 
	11. 	
    The Sub-Tenant shall have the right to make leasehold
    improvements within the premises provided they obtain from the
    Sub-Landlord and the Head Landlord the prior written approval
    for any leasehold improvements and shall be responsible for all
    costs of such improvements, as per the Head Lease.
	 
	* As amended
	12. 	
    The Sub-Tenant shall be permitted to abandon all leasehold
    improvements, installations, alterations, partitions and fixtures
    installed by the Sub-Tenant and Sub-Landlord with the consent of
    the Sub-Landlord and the Head Landlord without being obligated
    to remove same at the expiry or termination of the Sub-Lease or
    any renewal.
	 
	13. 	
    The Sub-Landlord covenants and warrants that the heating,
    air-conditioning, plumbing, electrical and mechanical systems
    are and shall be in good repair and condition upon the
    commencement date of the Sub-Lease.




FURNITURE:






		
	14. 	
    The Sub-Landlord shall make available to the Sub-Tenant






			
	 	a.) 	
    all work benches






			
	 	b.) 	
    air compressor






			
	 	c.) 	
    racking in the warehouse and mezzanine






			
	 	d.) 	
    cafeteria — kept as is with existing appliances,
    tables and chairs






			
	 	e.) 	
    wiring to be kept intact at hub






			
	 	f.) 	
    furniture in section 1






			
	 	g.) 	
    furniture and workstations in section 2






			
	 	h.) 	
    Sub-Landlord to provide a copy of any existing electrical
    wiring, network cabling, and base building plans for the
    Premises they may have in their possession,



     
at no charge for the term of the Sub-Lease.






			
	 	*H.) 	
    The Sub-Tenant shall have the option to purchase the
    Sub-Landlord’s existing phone system at a mutually agreed
    price.








 


Page 3.


SUB-LEASE:






		
	15. 	
    The Sub-Tenant acknowledges that this is an Offer to Sub-Lease
    and further acknowledges and agrees that this Offer to Sub-Lease
    is subject to all the terms and conditions of the Lease
    Agreement attached hereto as Schedule “B”
    dated September 17, 1997, between BRUCE N. HUNTLEY
    CONTRACTING LIMITED, as Landlord (the “Head
    Landlord”), and IMAGE PROCESSING SYSTEMS INC., as Tenant
    (the “Landlord”), except for those terms and
    conditions set out herein. The Sub-Tenant shall abide by all of
    the terms, conditions, and covenants of the Sub-Landlord under
    the Head Lease in respect of the Sub-Leased Premises and shall
    ensure same as per the Head Lease.
	 
	16. 	
    This Offer to Sub-Lease shall be subject to the Sub-Landlord
    being able to obtain on terms and at an expense acceptable to
    its approval from the Head Landlord, to sub-lease the leased
    premises and to the other provisions of this Offer within five
    (5) business days. In default of which this Offer shall be null
    and void. Sub-Tenant shall provide forthwith such information as
    Head Landlord may require and shall forthwith execute such
    further documentation in respect of such Sub-lease as Head
    Landlord shall require or as may be contemplated by the Head
    Lease.




SUB-SUB-LET OR ASSIGN:






		
	17. 	
    The Sub-Tenant shall have the right to sub-sub-lease or assign
    the Sub-Leased Premises subject to the approval of the
    Sub-Landlord and/or Head Landlord, such approval not to be
    unreasonably withheld, as outlined in the Landlord’s Lease
    Agreement.




FIXTURING PERIOD:






		
	* 	As Amended
	18. 	
    Provided the Sub-Lease Agreement has been executed by all
    parties, the Sub-Tenant shall be allowed early occupancy of
    the sub-leased premises on May 1, 2005 for the purposes of
    installing its leasehold improvements, fixtures, cabling/wiring
    and making ready for occupancy. The sub-tenant agrees that
    during this Fixturing/Early Occupancy Period, it shall be a
    Sub-Tenant of the Sub-leased Premises subject to all terms and
    conditions of this Offer to Sub-Lease, save and except the
    Sub-Tenant shall not be required to pay Net Rent and Operating
    Expenses.




PARKING:






		
	19. 	
    The Sub-Landlord shall provide free outdoor parking in the
    adjacent parking area, as per the Head Lease.




SUB-LEASE AGREEMENT:






		
	20. 	
    If this Offer is accepted, the Sub-Tenant agrees to enter into a
    Sub-Lease Agreement with the Sub-Landlord prior to the
    commencement of the Sub-Lease Term and in any event prior to
    occupancy, on the Sub-Landlord’s Standard Form, which
    Sub-Lease shall include all the terms and conditions contained
    in this Offer, any terms required by the Head Lease and such
    other terms and conditions as are mutually agreed upon by the
    parties.




SIGNS:






		
	21. 	
    Subject to the provisions of the Head Lease, the Sub-Tenant, at
    its cost, shall with Head Landlord’s approval have the
    right to erect a sign on the outside of the Sub-Leased Property
    provided that the sign shall be in a design, size, location and
    in all other respects satisfactory to the Sub-Landlord and Head
    Landlord and all Municipal and Governmental Authorities.







 



Page 4.




FINAL MEASUREMENT:






		
	22.	
    It is understood by the Sub-Tenant that the Sub-Leased Premises
    are subject to rental adjustments based upon final measurement
    by the Sub-Landlord or its architect. The area of the Premises
    will be measured by the Sub-Landlord, at its own expense. In
    accordance with BCMA standards, within 30 days from the
    date of occupancy. All Rent and any other amounts expressed on a
    square footage basis in this offer will be adjusted in
    accordance with the certified area.




FINAL APPROVAL:






		
	23.	
    This Offer to sub-lease is conditional upon the final written
    approval of SERVICE RESULTS TECHNOLOGY INC. Board of Directors,
    within Five (5) business days of acceptance. If final
    approval is not received then the Sub-Tenant may, at its option,
    terminate this Agreement and its obligations hereunder by
    giving written notice to the Sub-Landlord prior to the expiry of
    the said Three (3) day period, and any deposit monies shall
    be returned forthwith without interest or deduction. This
    condition has been inserted solely for the benefit of the
    Sub-Tenant and may be waived by it at any time prior to the
    condition’s expiry.




CONDITION ON HEAD LANDLORD’S EXTENSION OF LEASE
TERM:






		
	* 	As amended
	24.	
    This Offer to sub-lease is conditional upon SERVICE RESULTS
    TECHNOLOGY INC. successfully negotiating an extension to the
    existing sub-lease term, within Five (5) business days of
    acceptance. If final approval is not received then the
    Sub-Tenant may, at its option, terminate this Agreement and its
    obligations hereunder by giving written notice to the
    Sub-Landlord prior to the expiry of the said Five (5) day
    period, and any deposit monies shall be returned forthwith
    without interest or deduction. This condition has been inserted
    solely for the benefit of the Sub-Tenant and may be waived by
    it at any time prior to the condition’s expiry.




AGENCY DISCLOSURE:






		
	25.	
    All parties to this offer to Sub-Lease acknowledge that
    J. J. Bamicka is acting as Agent for the Sub-Tenant and will
    be compensated by Sub-Landlord pursuant to the terms of a
    Commission Agreement between Sub-Landlord and
    Sub-Landlord’s Agent.




FAX TRANSMISSION:






		
	26.	
    The parties hereto agree that this Offer to Lease may be
    executed and communicated by each party to the other by
    electronic facsimile transmission and such transmission shall be
    deemed an originally executed document for the purposes of the
    Offer to Lease.




GOOD AND SERVICES TAX:






		
	27.	
    The Sub-Tenant shall pay to the Sub-Landlord an amount equal to
    any and all goods and services taxes or similar taxes imposed
    with respect to Net Rent, Operating Expenses, real estate taxes
    or any other charges payable by the Sub-Tenant to the
    Sub-Landlord, in accordance with applicable legislation.




WAIVER TO THE AGENT:






		
	28.	
    The parties to this Agreement acknowledge that J. J. Bamicka
    Limited and Colliers International Limited have recommended that
    they obtain advice from their legal counsel prior to signing
    this document. The parties further acknowledge that the
    information provided by J. J. Bamicka Limited and Colliers
    International Limited is not construed as expert legal or tax
    advice and the parties are cautioned not to reply on any such
    information without seeking specific legal advice with respect
    to their unique circumstances.
	 
		
    It is further understood that all representations made by the
    Sub-Landlord or any of its representatives are set out in this
    agreement.





 






 




Amendment page 4A




Amendment to offer to sublease 221 Whitehall Dr. between
Photon Dynamics, Inc and Service Results Technology, Inc., Dated
March 9, 2005.




The Offer to Sublease shall be revised as follows:




4. RENTAL COSTS:



     
The net rental cost for the term June 1, 2005 to
Oct. 31, 2005 shall be $6.25 net.



     
The Net Rent shall be amended to be as follows:




	 	 	 
	
    
    June 1, 2005 to Oct. 31, 2005

    	 	
    $6.25 net psf
	
    
    Nov. 1, 2005 to Oct. 31, 2006

    	 	
    $6.25 net psf
	
    
    Nov. 1, 2006 to Oct. 31, 2007

    	 	
    $6.75 net psf





12. LEASEHOLD IMPROVEMENTS



     
Delete clause and replace with the following: “Any and all
leasehold improvements, installations, alterations, partitions
and fixtures installed by the Sub-Tenant shall be subject to the
provisions of the Lease Agreement (including but not limited to
Clause 33).”




18. FIXTURING PERIOD



     
Both parties agree to joint tenancy beginning May 1, 2005,
for the purpose of sub-lessee’s installation of tenant
improvements and associated preparation of premises for their
use.




18.(b). The Sublandlord will allow the Subtenant to
store its Inventory in a mutually agreed location immediately
upon signing of the Sublease.




* As amended.



18.(c) Subtenant assumes all liability for the
safety and security of all material placed in storage within the
property, and agrees that NO hazardous or flammable chemicals
are stored onsite. Access to stored material will be limited to
the sub-landlords normal business hours.





24. CONDITION ON HEAD LANDLORD’S EXTENSION OF LEASE
TERM



     
Within the first sentence, and following “extension to the
existing sub-lease term”.....insert “between it, as a
tenant, and the Head Landlord with no involvement of the
Sub-Landlord”............




29. LEGAL REVIEW



     
This agreement is subject to review and approval of Photon
Dynamics, Inc. legal counsel, to be completed within five days
of acceptance of this offer, and agrees to good faith
negotiation to resolve any issues or discrepancies.




	 	 	 
	
    
    /s/ Ronald Volk

    	 	
    /s/ [ILLEGIBLE]
	 	 	 
	
    
    Ron Volk

    	 	
    Authorized signing officer
	
    
    Vice President of operations

    	 	
    Service Results Technology, Inc.
	
    
    Photon Dynamics, Inc.

    	 	 










 



Page 5.




This Offer shall be irrevocable until
March 23rd,
2005, after which time if not accepted this Offer shall be null
and void.




DATED at Markham this 9th day of March, 2005.




	 	 	 
	
    
    SIGNED, SEALED AND DELIVERED)

    	 	
    SERVICE RESULTS TECHNOLOGY INC.
	
    
          in the presence

of:                      )

    	 	                             
per:
	
    
                       
                    
   )

    	 	 
	
    /s/[ILLEGIBLE]         
                    )

    	 	
    /s/[ILLEGIBLE]
	
    
                       
                   
    )

    	 	 
	 	 	 
	
    
      Witness

    	 	
         AUTHORIZED SIGNING OFFICER





WE hereby accept the above Offer to Sub-Lease




DATED at Markham this 1 day of March, 2005.




	 	 	 
	
    
    SIGNED, SEALED AND DELIVERED)

    	 	
    PHOTON DYNAMICS CANADA INC.
	
    
          in the presence

of:                      )

    	 	                             
per:
	
    

                                             )

    	 	 
	
    

                                             )

    	 	 
	
    

                                             )

    	 	 
	 	 	 
	
    
      Witness

    	 	
         AUTHORIZED SIGNING OFFICER








 


Schedule
‘A’

221 Whitehall Drive

MARKHAM, ONTARIO

FLOORPLAN



SECTION 2

SECTION 1