EXHIBIT 10.5
FIRST AMENDMENT TO LEASE
DATE: March 1, 2003
LANDLORD: PAN AM EQUITIES, INC.
As agent for XXXXXX EQUITIES CORP.
ADDRESS OF LANDLORD: 0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
TENANT: BION ENVIRONMENTAL TECHNOLOGIES, INC.
ADDRESS OF TENANT: 00 Xxxx 00xx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LEASE DATE: August 8, 2000
NEW COMMENCEMENT DATE: January 1, 2003
DATE OF PRIOR
AMENDMENTS OR AGREEMENT: NONE
BUILDING: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CURRENT PREMISES: Tenth Floor
SECURITY DEPOSIT
OR LETTER OF CREDIT: $120,561.00
EXPIRATION DATE: December 31, 2010
NEW EXPIRATION DATE: December 31, 2003
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RECITALS
WHEREAS, Landlord and Tenant entered into a lease agreement dated August
8, 2000 (the "Original Lease") wherein Tenant leased premises known as the
Tenth (10th) floor of the Building ("Original Premises");
WHEREAS, the parties have agreed to shorten the term of the Lease; and
WHEREAS, the parties have agreed to further modify the terms of the
Original Lease.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is hereby agreed as follows:
1. The Lease. For the purposes of this First Lease Amendment, the term
"Lease" shall be defined as the Original Lease. Unless defined herein the
capitalized word shall have the meaning ascribed to them in the lease.
2. Arrearages. As of February 24, 2003, Tenant acknowledges it is
currently in arrears for the sum of $48,533.92 ("Arrearages"). Said
Arrearages are due and owing to the Landlord and must be paid immediately.
3. Drawdown of Letter of Credit. Immediately upon the execution of
this Amendment by Tenant, Landlord shall draw down on the Letter of Credit
and the full amount of $120,561.00 shall be released to Landlord. As
necessary, Tenant shall cooperate with Landlord to facilitate the release of
the Letter of Credit.
Landlord shall utilize the Letter of Credit to pay the Arrearages. Once the
Arrearages have been satisfied, there shall remain the sum of $72,027.08
("Remaining Sum"). Landlord shall utilize the Remaining Sum to pay Rent due
under the Lease. Once the Remaining Sum has been utilized, then the Tenant
shall continue to pay the Rent due under the Lease.
4. New Expiration Date. The parties agree that the Lease shall now
terminate on December 31, 2003 ("New Expiration Date"). Tenant shall now
vacate on the New Expiration Date in accordance with the Lease.
5. Personal Guaranty. To ensure performance by Tenant as to its
obligations under the Lease, as amended herein, Xxxxx Xxxxxxxx and Xxxxxxxxx
Xxxxx shall enter into the form of personal guaranty attached hereto as
Exhibit "A".
6. Successor-in-Interest. The First Amendment of the Lease shall inure
to the benefit of and be binding upon the parties hereto and their respective
legal representatives, successors and permitted assigns.
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7. No Broker. Landlord and Tenant represent and warrant to each other
that no broker brought about this transaction and Landlord and Tenant agree
to indemnify and hold each other harmless from any and all claims of any
broker arising out of or in connection with the negotiations of or the
entering into of this First Amendment of Lease by the parties hereto. If
such claim arises out of a breach of the foregoing warranty to that end
Landlord or Tenant shall indemnify the other party for all loss, costs or
damage including reasonable attorney=s fees arising therefrom. These
representations and warranties shall survive the termination of the Original
Lease and this First Amendment.
8. Ratification of Original Lease. Except as expressly modified and
amended by this First Amendment of Lease, all of the terms, provisions and
conditions of the Original Lease are hereby ratified and confirmed by
Landlord and Tenant. Tenant hereby releases and discharges Landlord from any
and all claims or liability now arising out of the Lease prior to the date
hereof, including, but in no way limited to, any and all changes as billed by
Landlord to Tenant pursuant to the terms of the Original Lease. In the event
of a conflict between the terms of the Original Lease and the terms of the
First Amendment, then the terms of this First Amendment shall control.
ATTEST: LANDLORD:
PAN AM EQUITIES, INC.
As agent for XXXXXX EQUITIES CORP.
By:______________________ By: /s/
Name:____________________ Name:_______________________
Title:___________________ Title:______________________
ATTEST: TENANT:
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By:______________________ By:/s/ Xxxxx Xxxxxxxx
Name:____________________ Name:_______________________
Title:___________________ Title: CEO
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E X H I B I T "A"
PERSONAL GUARANTY
FOR VALUE RECEIVED, and as an essential inducement to cause PAN AM
EQUITIES, INC., as agent for XXXXXX EQUITIES CORP., as landlord ("Landlord"),
to enter into that certain agreement of lease (the "Lease") dated August 8,
2000 and amended by a First Amendment being executed simultaneously, between
Landlord and BION ENVIRONMENTAL TECHNOLOGIES, INC., as tenant ("Tenant") for
certain premises in the building owned by Landlord known as 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as more particularly described therein (the
"Premises"), the undersigned, XXXXX XXXXXXXX AND XXXXXXXXX XXXXX
(collectively, the "Undersigned") all having an office at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 hereby agree as follows:
1. Effective after a default and termination of the Lease, the
undersigned hereby unconditionally guarantees to Landlord: (a) the full and
timely payment of rent and additional rent under the Lease; and (b) the
payment by Tenant of any legal fees expended by Landlord in obtaining
possession of the Premises after a default by Tenant under the Lease and
termination of the Lease or in enforcing the provisions of this Guaranty. The
Undersigned hereby waives notice of acceptance of this Guaranty, notice of
any action taken or omitted in reliance herein, notice of default, notice of
non-payment, notice of non-performance, notice of non-observance,
presentment, protest or other proof or notice or demand, or promptness in
making any claim or demand hereunder, whereby to charge the Undersigned. The
Undersigned hereby expressly agrees that the validity of this Guaranty shall
in no way be terminated, affected or impaired by reason of the assertion of,
or failure to assert, against Tenant or any other person any of the rights or
remedies reserved pursuant to the provisions of the Lease.
2. INTENTIONALLY OMITTED.
3. The Undersigned agrees that the Landlord shall have the right, in
Landlord's discretion, to proceed against the Undersigned, or any of them
upon any default of Tenant in the performance of Tenant's obligations to pay
rent and additional rent in accordance with the provisions of the Lease,
without first instituting action or proceeding against Tenant, or Landlord
may also take all available action for redress against Tenant alone or
jointly by reasons of any such default, against both Tenant and the
Undersigned, or any of them
4. The undersigned further agrees that if it shall be necessary to
institute action against the Undersigned in order to enforce this Guaranty,
the Undersigned shall pay to Landlord the reasonable fees and expenses of
Landlord=s attorneys in connection with the enforcement of this Guaranty.
5. In any action of proceeding brought hereunder against the
Undersigned, the Supreme Court of the State of New York for the County of New
York, or in case of diversity of citizenship, the United States District
Court for the Southern District of New York shall have jurisdiction.
6. The provisions of this Guaranty shall continue to be effective or
shall be reinstated, as the case may be, if payment or any part hereof, or
any of the obligations guaranteed hereunder up to the date of surrender is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of Tenant, whether by order of any court, by any
settlement approved by any court, or otherwise, all as though such payment
had not been made.
7. To the extent permitted by law, the Undersigned hereby, waives trial
by jury of any and all issues arising in any action or proceeding between the
parties upon, under, or connected with this Limited Guaranty, or any of its
provisions, or the breach thereof, directly or indirectly, or any and all
negotiations in connection therewith.
8. In case of any agreement between Landlord and Tenant extending the
time of performance or modifying or waiving of any of the terms, provisions
or conditions of the Lease, or in case of any failure of Landlord to enforce
any of the terms or provision of the Lease, the Undersigned nevertheless
shall continue to be jointly and severally liable under this Guaranty
according to the tenor hereof and no extension, modification, waiver or
failure to enforce Landlord's rights under the Lease shall impair the
obligations of the Undersigned herein to Landlord, and this obligation shall
be and shall remain in full force and effect, the Undersigned expressly
waiving any notice of such extension, modification, waiver or failure to
enforce the Lease.
9. Any payments required to be made by the Undersigned hereunder shall
become due on demand in accordance with the terms hereof immediately upon the
happening of a default by Tenant under the Lease and the expiration of the
time period for curing same as provided under the Lease and termination
thereof, if any, and the Undersigned expressly waives and relinquishes all
rights and remedies accorded by applicable law to guarantors, except the
right to cure promptly.
l0. The validity of this Guaranty and the obligations of the
Undersigned hereunder shall in no way be terminated, affected or impaired by
reason of any action which Landlord may take or fail to take against Tenant
or by reason of any failure to enforce any of the rights or remedies reserved
to Landlord in the Lease, or otherwise. No delay on Landlord's part in
exercising any right, power or privilege under the Lease, this Guaranty, or
any other document which may be executed by the Undersigned, shall operate
as a waiver of any such right, power or privilege.
11. This Guaranty shall remain in full force and effect,
notwithstanding the institution by or against Tenant or the Undersigned, of
bankruptcy, reorganization, readjust, receivership or insolvency proceedings
of any nature or disaffirmance of the Lease in any such proceedings, or
otherwise.
12. This Guaranty shall continue and remain in full force and effect
and be binding upon the Undersigned and Landlord as to any modifications or
extensions of the Lease; but not as to permitted assignments provided
assignee's principals execute a Guaranty in substantially identical form to
this Guaranty; but shall be so binding as to any permitted sale or sales of
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the stock of Tenant, or of partnership or joint venture interest in Tenant,
as the case may be, and also after any termination of the Lease for any cause
whatsoever.
13. This Guaranty shall be binding upon and inure to the benefit of
Landlord and its respective heirs, executors, administrators, legal
representatives, successors and assigns, and shall be binding upon each of
the Undersigned and its respective heirs, executors, administrator, legal
representatives and assigns.
14. Guarantor acknowledges that this Guaranty is an absolute and
unconditional guaranty of payment and not merely of collection.
IN WITNESS WHEREOF, the Undersigned has executed this Guaranty this 3
day of March 2003.
/s/ Xxxxx Xxxxxxxx
--------------------------
Guarantor
###-##-####
--------------------------
Social Security Number
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
14. Guarantor acknowledges that this Guaranty is an absolute and
unconditional guaranty of payment and not merely of collection.
IN WITNESS WHEREOF, the Undersigned has executed this Guaranty this 3
day of March 2003.
/s/ Xxxxxxxxx Xxxxx
--------------------------
Guarantor
###-##-####
--------------------------
Social Security Number
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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