EXHIBIT 10.5
CONSENT TO SUBLEASE AGREEMENT
(THE "AGREEMENT")
This Agreement made as of JUNE 14, 2004.
Amongst:
CONSOLIDATED PROPERTIES (520 - 5(TM) AVENUE) LTD.
(hereinafter referred to as the "Landlord")
OF THE FIRST PART
and
PARADIGM GEOPHYSICAL CANADA LTD.
(hereinafter referred to as the "Tenant")
OF THE SECOND PART
and
BRYCOL CONSULTING LTD.
(hereinafter referred to as the "Subtenant")
OF THE THIRD PART
RECITALS
A. By lease dated June 30, 2003 (the "Lease") between Consolidated Properties
(520 - 5th Avenue) Ltd. ("Consolidated") and the Tenant, Consolidated
leased to the Tenant the premises (the "25th Floor Premises") known as
Suite 2500 with an approximately area of 8,076 located on the 25th floor
of the building located at 000 - 0xx Xxxxxx XX, Xxxxxxx, Xxxxxxx (the
"Building") more particularly described in the Lease.
B. By offer to sublease (the "Sublease") accepted May 13, 2004 the Tenant
agreed to sublease the 25th Floor Premises to the Subtenant on the terms
and conditions more particularly described herein.
E. The Tenant has requested that the Landlord consent to the Sublease, a copy
of which is attached hereto as Schedule "A".
THEREFORE THIS AGREEMENT witnesses that in consideration of the consent of the
Landlord to the Sublease and the mutual covenants and agreements contained
below, the parties hereto agree as follows:
1. Interpretation
The capitalized terms used herein and not otherwise defined herein shall
have the meanings given thereto in the Lease.
2. Subtenant Bound By Lease
The Subtenant agrees to be bound by and perform all terms and conditions
of the Lease except for those obligations as to Rent and the Term. The
Tenant and the Subtenant agree, on a joint and several basis, to indemnify
and save harmless the Landlord against any and all actions suffered by the
landlord and arising from a breach by the Subtenant of any of its
obligations under this agreement or the Sublease or resulting from the
occupancy of the premises under the Sublease by the Subtenant. The Tenant
agrees any default by the Subtenant under this Agreement shall be deemed
to be a default under the Lease.
3. Conditions to Agreement
The Landlord hereby consents to the Sublease subject to the terms and
conditions of this Agreement. The Tenant and the Subtenant acknowledge and
agree that this Agreement is expressly conditional upon:
a. the Tenant performing its obligations under the Lease; and
b. the Subtenant performing its obligations under the Sublease to the
extent that a breach of any such obligation would be, if not
performed, a breach under the Lease.
These conditions are for the sole benefit of the Landlord and if breached
will entitle the Landlord,, at its option, to waive such breach or
terminate this Agreement upon written notice to the Subtenant and Tenant
without limiting any other remedies of the landlord under this Agreement,
the Lease or at law or equity.
4. No Release
This Agreement shall in no way release the Tenant or any person or entity
claiming by, through or under the Tenant, including the Subtenant, from
any of its covenants, agreements, liabilities and duties under the Lease
(including, without limitation, all duties to cause and keep Landlord and
others named or referred to in the Lease fully insured and indemnified
with respect to any acts or omissions
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of the Subtenant or its agents, employees or invitees or other matters
arising by reason of the Sublease or the Subtenant's use occupancy of the
Premises), as the same may be amended from time to time, without respect
to any provision to the contrary in the Sublease.
5. Specific Provisions of Lease and Sublease
This Agreement does not constitute approval by Landlord of any of the
provisions of the Sublease nor shall this Agreement be construed to amend
the Lease in any respect. Any purported modifications of the Lease
contained in the Sublease shall be solely for the purpose of setting forth
the rights and obligations as between the Tenant and the Subtenant and
shall not be binding on the Landlord.
6. Amendment of Sublease
The Tenant and the Subtenant shall not amend the Sublease in any respect
without the prior written approval of the Landlord, such approval not to
be unreasonably withheld. In no event shall any such amendment affect or
modify or be deemed to affect or modify the Lease in any respect. If the
Sublease is an agreement to sublease and the tenant and the Subtenant
subsequently enter into a sublease, the Tenant shall provide a fully
executed true copy of the sublease to the Landlord and the provisions of
this Agreement shall be deemed to apply to such sublease.
7. Limited Agreement
This Agreement does not and shall not be construed or implied to be a
consent to any other matter for which the Landlord's consent is required
under the Lease, including, without limitation, any alterations to the
Premises, any additional sublease of the Premises or part thereof, any
assignment or transfer of the Lease or any interest therein or any
transfer or assignment of this Sublease.
8. The Tenant's Continuing Liability
The Tenant shall be liable to the Landlord for any default under the
Lease, whether such default is caused by the Tenant or the Subtenant or
anyone claiming by or through either the Tenant or the Subtenant, but the
foregoing shall not be deemed to restrict or diminish any right which the
Landlord may have against the Subtenant pursuant to the Lease, in law or
in equity for violation of the Lease or otherwise, including, without
limitation, the right to enjoin or otherwise restrain any violation of the
Lease by the Subtenant.
9. Acceptance by the Tenant and the Subtenant
The Tenant and the Subtenant understand and acknowledge that the Landlord
has agreed to execute this Agreement based upon the Tenant's and the
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Subtenant's acknowledgement and acceptance of the terms and conditions
hereof.
10. Insurance
Effective the earlier of the commencement date of the Sublease or
occupancy by the Subtenant of the subleased premises, in addition to
complying with the requirements of the Lease as to insurance as if the
Subtenant were the Tenant thereunder, the Subtenant agrees to provide
evidence of such insurance prior to taking possession of the Premises. The
Subtenant confirms that the insurance it is required to place for the
Premises under this Agreement and the Sublease is being placed for the
benefit of the Landlord and the Tenant. The Subtenant confirms that its
insurance is primary in relationship to the Landlord's and the Tenant's
insurance. The Tenant confirms its insurance is primary in relationship to
the Landlord's insurance.
11. Subordination
The Sublease is, in all respects, subject and subordinate to the Lease, as
the same may be amended. Furthermore, in the case of any conflict between
the provisions of this Agreement or the Lease and the provisions of the
Sublease, the provisions of this agreement or the Lease, as the case may
be, shall prevail unaffected by the Sublease.
12. Additional Rent
Notwithstanding anything to the contrary herein, the Tenant acknowledges
and agrees that the Tenant will promptly pay to the Landlord throughout
the Term of the Lease any Additional Rent owed to the Landlord as required
under the Lease, and otherwise comply with the provisions of the Lease
which may be relevant to the Sublease. Without limiting the generality of
the foregoing, the Tenant specifically agrees to pay all of the Landlord's
costs, charges and expenses, including reasonable lawyer's fees, incurred
in connection with the Sublease and this Agreement upon submission of
bills therefore, and that the failure to pay the same upon demand shall be
a default under the Lease.
13. Termination of Lease and Attornment
If at any time prior to the expiration of the term of the Sublease the
Lease shall terminate or be terminated for any reason (or the Tenant's
right to possession shall terminate without termination of the Lease), the
Sublease and all parking rights thereunder shall simultaneously terminate.
However, the Subtenant agrees, at the election and upon written demand of
the Landlord, and not otherwise, that it shall be deemed to have attorned
to the Landlord and entered in a new lease (the "New Lease") for the
remainder of the term of the Sublease (the "Remainder Term") and the New
Lease and such attornment shall be upon
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all of the same terms and conditions of the Lease except that: (i) the
term of the New Lease shall be the Remainder Term; (ii) the premises shall
be the premises described in the Sublease; and (iii) the basic rent under
the New Lease shall be the greater of the Net Rent payable under the Lease
or the then current market rent for similar improved premises in similar
buildings in similar locations (without reference to subleased premises)
as determined by the Landlord objectively and on written notice to the
Subtenant. The foregoing provisions of this paragraph shall apply
notwithstanding that, as a matter of law, the Sublease may otherwise
terminate upon the termination of the Lease, and no further instrument
shall be required to give effect to such provisions. The New Lease shall
be effective on the date the Lease is terminated and the Subtenant shall
be liable to make all readjustments necessary to give effect to the New
Lease within 5 days of written notice from the Landlord. Upon the demand
of the Landlord, however, the Subtenant agrees to execute, from time to
time, documents in confirmation of the foregoing provisions of this
paragraph satisfactory to the landlord in which the Subtenant shall
acknowledge such attornment and shall set forth the terms and conditions
of its tenancy. Nothing contained in this paragraph shall be construed to
impair or modify any right otherwise exercisable by the Landlord, whether
under the Lease, or under any other agreement or in law.
14. Services
the Tenant hereby agrees that the Landlord may furnish to the Premises
services required by the Subtenant other than or in addition to those to
be provided under the Lease, and xxxx the Subtenant directly for such
services for the convenience of, and without notice to, the Tenant. The
Subtenant hereby agrees to pay the Landlord all amounts which may become
due for such services on the due dates therefore. If the Subtenant shall
fail to do so, however, the Tenant agrees to pay such amounts to the
Landlord upon demand as Additional Rent under the Lease, and the failure
to pay the same upon demand shall be a payment default under the Lease.
15. Waiver and Privity
Nothing herein contained shall be deemed a waiver of any of the Landlord's
rights under the Lease. Except as expressly provided in this Agreement,
the Landlord shall not be deemed to have privity of contract with the
Subtenant or owe any obligation or duty to the Subtenant under the Lease
or otherwise until such time as the Landlord exercises its option under
paragraph 13 hereof. Any duties of the Landlord under the Lease shall be
solely in favour of, for the benefit of and enforceable by the Tenant.
16. Notices
The Subtenant agrees to promptly deliver a copy to the Landlord of all
notices of default and all other notices sent to the Tenant under the
Sublease, and the
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Tenant agrees to promptly deliver a copy to the Landlord of all such
notices sent to the Subtenant under the Sublease. The Landlord agrees to
promptly deliver a copy to the Subtenant of all notices of default sent to
the Tenant. All copies of any such notices shall be delivered personally
or sent by registered or certified mail, postage prepaid, return receipt
requested or by facsimile transmission to the parties as follows:
if to the Landlord, at the Landlord's address in the Lease;
if to the Tenant,
Xxxxx 000, 000 - 0xx Xxxxxx XX Xxxxxxx, Xxxxxxx X0X 0X0 Facsimile:
000-000-0000
if to the Subtenant,
Xxxxx 0000, 000 - 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000
or such other address specified in writing by any party to the other
parties from time to time.
17. More Than One Entity
If either the Tenant or the Subtenant is comprised of more than one
person, the covenants of each of such persons comprising the Tenant or the
Subtenant as the case may be shall be deemed joint and several and not
several. In this Agreement, "person" means and includes (without
limitation) any individual, partnership, firm, company, corporation,
incorporated or unincorporated association, co-tenancy, joint venture,
syndicate, trust, government, governmental or quasi-governmental agency,
board, commission or authority, organization or any other form of entity
howsoever designated or constituted or any group, combination or
aggregation of any of them.
18. The Tenant and the Subtenant Bound
By executing this Agreement, the Tenant and the Subtenant acknowledge and
agree to be bound by all of the terms and conditions of the Landlord's
consent to the Sublease as set forth herein.
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19. Amendments
This Agreement may be altered or amended only by a written agreement
signed by all parties to this Agreement.
20. Governing Laws
This Agreement shall be governed by the laws of Alberta and Canada
applicable therein.
21. Successors and Assigns
This Agreement will enure to the benefit and be binding upon the parties
to this Agreement and their respective successors and assigns.
22. Counterpart Execution
This Agreement may be executed in any number of counterparts, with the
same effect as if all the parties had signed the same document and will be
come effective once a signed counterpart is delivered by each of the
parties to the other. This Agreement shall be deemed to be executed under
seal by all parties even if a party fails to apply its seal.
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THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK
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Execution by Fax
This Agreement may be executed by a party and delivered by fax and if so
executed and transmitted, this Agreement will be for all purposes effective as
if the parties had delivered and executed the original Agreement.
IN WITNESS WHEREOF the Landlord, the Tenant and the Subtenant have duly executed
this Agreement as of the date and year first written above.
CONSOLIDATED PROPERTIES
(520 - 5TH AVENUE) LTD.
Per: /s/ X. Xxxxx
----------------------------------
Name: X. Xxxxx
Authorized Signatory
Per:_________________________________
Name:
Authorized Signatory
PARADIGM GEOPHYSICAL CANADA LTD.
Per: /s/ M Xxxxxx
----------------------------------
Name: X. Xxxxxx
Authorized Signatory
Per:_________________________________
Name:
Authorized Signatory
BRYCOL CONSULTING LTD.
Per: /s/ Xxxx Xxxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxx Xxxxxxx
Authorized Signatory
Per:_________________________________
Name:
Authorized Signatory
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SCHEDULE"A"
COPY OF SUBLEASE ATTACHED)
May 13, 2004
Paradigm Geophysical Canada Ltd.
c/o CMN Calgary Inc.
0000 Xxxxx Xxxx Xxxxxxxx
000-0xx Xxxxxx X.X.
Xxxxxxx, XX X0X 0X0
Dear Sirs:
This Offer to Sublease ("Offer") formally expresses the intent of Brycol
Consulting Ltd. to sublease from Paradigm Geophysical Canada Ltd. those certain
premises on the 25* floor of 000 - 0"0 Xxxxxx X.X. (the "Building") upon the
following terms and conditions:
1. SUBTENANT: Brycol Consulting Ltd.
2. SUBLANDLORD: Paradigm Geophysical Canada Ltd.
3. SUBPREMISES: The subleased premises shall comprise of the 25th floor of the
Building as outlined in Schedule "A" attached hereto having a
rentable area (the "Rentable Area") of approximately Eight
Thousand Seventy Six (8,076) square feet (the "Subpremises").
The Rentable Area of the Subpremises shall be determined in
accordance with the Landlord's current building measurement
standards.
4. CONDITION OF
SUBPREMISE: The Subpremises shall be accepted and leased by Subtenant on
an "as-is" basis with respect to all existing leasehold
improvements contained therein. The Subtenant agrees not to
make, erect, install or alter any leasehold improvements in
the Subpremises without having obtained the prior written
approval of the Sublandlord, (not to be unreasonably
withheld), and the Landlord's approval in accordance with the
provisions of the Lease. The Subtenant's request for any
approval hereunder shall be in writing and accompanied by an
adequate description of the contemplated work and where
appropriate, working drawings and specifications thereto.
5. TERM
OF SUBLEASE: The term of the Sublease shall commence on July 1, 2004 (the
"Commencement Date") and expire on October 30, 2008 (the
"Term").
6. BASIC RENT: The Subtenant shall pay Fifteen Dollars Fifty Cents ($15.50)
per rentable square foot to the Sublandlord as Basic Rent
("Basic Rent") for the Subpremises in respect of each year of
the Term.
7. ADDITIONAL
RENT: Throughout the Term, the Subtenant shall pay to the
Sublandlord its pro-rata share of operating expenses and taxes
(the estimated for 2004 is $10.44 per rentable square foot),
and all other amounts of additional rent (the "Additional
Rent") pertaining to the Subpremises in accordance with the
provisions of the Lease.
In addition to the foregoing, the Subtenant shall also be
responsible to pay business taxes pertaining to its use and
occupation of the Subpremises.
8. DEPOSIT: Upon the unconditional acceptance of this Offer to Sublease,
the Subtenant shall provide an additional deposit, in the
amount of Thirty Five Thousand ($35,000) payable to CMN
Calgary Inc., in trust, to be held without interest and
applied to Basic Rent, Additional Rent and GST falling due for
the first one (1) month and the balance to be applied against
the last one (1) month of the Term.
9. SUB-SUBLETTING
AND ASSIGNMENT:The Subtenant shall not be permitted to assign the Sublease or
to sub-sublease the Subpremises or any portion thereof without
the Sublandlord's prior written approval not to be
unreasonably withheld and the Landlord's prior written
approval subject to the provisions of the Lease. Any such
sub-subletting or assignment shall not relieve the Subtenant
of its covenants and obligations under this Sublease.
10.SUBLANDLORD'S
CONDITIONS: This Offer is subject to the following conditions:
a) Review and approval by the Sublandlord of the financial
status of the Subtenant within five (5) business days of
mutual acceptance of this Offer. The Subtenant agrees to
provide the Sublandlord, within two (2) business days of such
request with credit references and such other financial
information relating to Subtenant as Sublandlord may request
and Subtenant consents to Sublandlord making such inquiries as
Sublandlord deems necessary, and
b) the Sublandlord obtaining the Landlord's consent to the
proposed Sublease on in accordance with the Headlease; and
c) Sublandlord Executive approval of this approval within TWO
(2) BUSINESS DAYS.
These Conditions are for the benefit of the Sublandlord and
must be waived in writing by the Sublandlord. If written
notification of the satisfaction or waiver of these conditions
precedent is not provided by the Sublandlord to the Subtenant
within the aforesaid time, this Offer to Sublease shall be
null and void and of no further force and effect.
11.SUBTENANT'S
CONDITIONS: This Offer is subject to the following conditions:
a) Subtenant's review and acceptance of the Sublandlord's
Standard Form of Lease within five (5) business days of mutual
agreement to the business terms of this Offer.
This Condition is for the benefit of the Subtenant and must be
waived in writing by the Subtenant. If written notification of
the satisfaction or waiver of this condition precedent is not
provided by the Subtenant to the Sublandlord within the
aforesaid time, this Offer to Sublease shall be null and void
and of no further force and effect.
12.FORMAL
DOCUMENTATION: Within seven (7) business days following the unconditional
acceptance of this Offer, the Sublandlord agrees to prepare
and deliver to the Subtenant a sublease agreement (the
"Sublease"), which shall incorporate the provisions of this
Offer and the underlying provisions of the Lease, except for
the amount of Basic Rent, rights of renewal, rights of
expansion, rights of first refusal, rights of termination and
such other similar rights. The Subtenant shall execute and
return the Sublease to Sublandlord within five (5) business
days from the date of receipt, and in any event prior to
obtaining possession of the Subpremises. It is acknowledged
that the Landlord must approve the Sublease, to confirm that
the terms in the Sublease conform to the terms in this Offer.
The Sublease will contain a condition to allow for the
obtaining of the Landlord's confirmation.
13.FIXTURES: AIR HANDLING UNIT/RAISED FLOOR -The air handling unit and the
raised floor located in the computer room shall be for the
sole and exclusive use of the Subtenant. The daily maintenance
of the two fixtures shall be the sole responsibility of the
Subtenant. Provided the Subtenant is in occupancy of the
Premises the air handling unit and raised floor shall be the
sole exclusive use of the Subtenant. If the Subtenant is not
in occupancy of the Premises the fixtures, including any
restoration, shall revert to the SublandloroVLandlord.
14.PARKING: The Sublandlord shall provide three (3) assigned parking
stalls in the Building parking lot (at standard rates) for the
Subtenant's use during the Term. (Stalls 26, 46 and 47)
15.TRANSMISSION
VIA FACSIMILE: All parties agree that this Letter may be transmitted by
facsimile device and that reproduction of signatures by way of
this facsimile device will be treated as though such
reproductions were executed originals and communication by
such means will be legal and binding.
16.BASIC FREE
RENT: The Subtenant shall not be obliged to pay Basic Rent for July
2004and one half (1/2) of August 2004.
17.ACCEPTANCE: This Counter Offer to Sublease is open for acceptance by the
Sublandlord on or before 4:00 p.m. May 20,2004 and if accepted
it is the intention of the Sublandlord and the Subtenant that
subject only to the conditions set out in Paragraph 11 and 12
herein, this accepted Offer constitutes a binding contract and
the provisions hereof are to be interpreted accordingly, and
if not accepted by then, will be null and void and of no
further effect.
Should you find these terms and conditions acceptable, please indicate your
acceptance by executing below and returning to our attention.
Yours truly,
BRYCOL CONSULTING LTD.
Per: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
The terms and conditions of this Letter are hereby agreed to and accepted this
31st day of May 2004.
PARADIGM GEOPHYSICAL CANADA LTD.
Per: /s/ X. Xxxxxx
--------------------------------
X. Xxxxxx
Authorized Signature
SCHEDULE "A"
FLOOR PLAN
(Floor Plan Image)
SCHEDULE "A"
Attached to and forming part of a Sublease between
Brycol Consulting Ltd. and Paradigm Geophysical Canada Ltd.
FLOOR PLAN
(Floor Plan Image)
