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Exhibit 10.5
SUBLEASE
SUBLEASE made as of the _ day of October, 1999, by and between
NET.GENESIS CORP., a Delaware corporation having a place of business at 000
XxxxxxxxxXxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, ATTN: Xxxx X. Xxxxx, CFO
("Sublandlord") and WL-BOSTON, INC., a Delaware corporation having a place of
business at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, ATTN: Xx. Xxx
Xxxxxxx ("Subtenant").
WITNESSETH:
WHEREAS, by lease dated October 23, 1996 (the "Xxxxxxxxx"), a copy of
which is attached hereto as Exhibit A, Beacon Capital Partners, as successors to
Xxxxxx X. Xxxxx and K. Xxxxxx Xxxxxxxx, Trustees of the Athenaeum Realty Nominee
Trust ("Landlord") leased to Sublandlord a portion of the building located at
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "Building") more particularly
described in the Xxxxxxxxx (the "Leased Premises"); and
WHEREAS, Sublandlord and Subtenant have agreed to enter into an
agreement pursuant to which Subtenant will occupy the Leased Premises comprised
of a portion of the third floor of the Building and shown on the plan attached
hereto as Exhibit B, containing approximately 16,000 rentable square feet (the
"Sublet Premises").
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NOW, THEREFORE, the parties hereto agree as follows:
1. DEMISE
Sublandlord hereby subleases the Sublet Premises to Subtenant and
Subtenant hereby hires and sublets the Sublet Premises from Sublandlord, upon
and subject to the terms and conditions hereinafter stated or incorporated
herein by reference. Capitalized terms not otherwise defined herein shall have
the meanings specified in the Xxxxxxxxx.
2. TERM
The term of this Sublease ("Term") shall be twenty-seven (27) months,
beginning on October 1, 1999 ("Commencement Date") and ending at midnight on
December 31, 2001, unless sooner terminated as this Sublease provides; provided
however, that, as provided in section 8.5 of this Sublease, in no event shall
the obligation of any party arise until the Sublease has received the written
approval of the Landlord. Subtenant shall have no option to extend the term of
this Sublease or the term of the Xxxxxxxxx. Subtenant's use of the Sublet
Premises shall be upon such terms (including the payment of Base Rent) as the
parties shall agree.
3. USE
Subtenant shall use and occupy the Sublet Premises solely for the
purpose of general offices and related purposes.
4. RENT
4.1 Base Rent
Subtenant shall pay to Sublandlord rent ("Base Rent") for the
use and occupancy of the Sublet Premises at the rate of $32,000.00 per month
($24.00 per rentable square foot) for the Term. Such monthly rent shall be paid,
in advance and without offset, on or before the first day of the month for each
month during the Term.
4.2 Electricity and Other Utilities
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Subtenant shall pay to Sublandlord, as additional rent, on or
before the first day of the month for each month during the Term, full
reimbursement of the cost of providing electricity to the Sublet Premises, which
are separately metered. Said payment shall be made within twenty (20) days after
Sublandlord notifies (and, if requested by Subtenant, provides a copy of the
xxxx to) Subtenant of the amount thereof.
4.3 Additional Rent
To the extent that under the Xxxxxxxxx Sublandlord is
obligated to pay additional rent as "Rent Adjustments" defined in Section 5 of
the Xxxxxxxxx, whether such additional rent is to reimburse Landlord for taxes,
operating expenses, common area maintenance charges or other expenses incurred
by the Landlord in connection with the Building, Subtenant shall pay to
Sublandlord, one hundred percent (100%) of such additional rent (to the extent
such additional rent is attributable to events occurring during the term of this
Sublease). Such payment shall be made in pro rata monthly installments due from
Subtenant to Sublandlord no fewer than five (5) days prior to the date upon
which Sublandlord's payment of such Additional Rent is due to the Landlord.
Sublandlord agrees that if the amount of Additional Rent is not set forth in the
Xxxxxxxxx, but is determined based on a notice from the Landlord, Sublandlord
will promptly notify Subtenant of the amount due and Subtenant will promptly,
but in event more than five (5) days, pay such Additional Rent.
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5. INCORPORATION OF XXXXXXXXX
Except as otherwise expressly provided herein, all of the terms,
covenants and conditions of the Xxxxxxxxx are incorporated herein by reference
and made a part hereof with the same force and effect as if set forth in their
entirety, provided that the terms and conditions hereof shall be controlling
whenever the terms and conditions of the Xxxxxxxxx are contradictory to or
inconsistent with terms and conditions hereof, and provided further that those
incorporated provisions of the Xxxxxxxxx which are protective and for the
benefit of Landlord shall in this Sublease be deemed to be protective and for
the benefit of both Landlord and Sublandlord, that references therein to
"LESSOR" and "LESSEE" shall be deemed to refer to "Sublandlord" and "Subtenant,"
respectively, that references therein to "this lease" shall be deemed to refer
to this Sublease, and that references therein to the "Leased Premises" or
"Premises" shall be deemed to refer to the Sublet Premises.
6. COVENANTS OF THE PARTIES
6.1 Performance of Xxxxxxxxx
Subtenant covenants and agrees to faithfully observe and
perform all of the terms, covenants and conditions of the Xxxxxxxxx on its part
to be performed pursuant to the provisions hereof, and neither to do nor cause
to be done, nor suffer, nor permit any act or thing to be done which would or
might cause the Xxxxxxxxx or the rights of Sublandlord as tenant thereunder to
be canceled, terminated, forfeited or surrendered, or which would or might make
Sublandlord liable for any damages, claims or penalties. Sublandlord covenants
and agrees that it will take no action, nor cause to be done, nor suffer, nor
permit any act or thing to be done which would or might cause the Xxxxxxxxx or
the rights of Sublandlord as tenant thereunder to be canceled, terminated,
forfeited or surrendered or which would or might adversely affect Subtenant's
rights hereunder.
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6.2 Indemnification
To the maximum extent that this Sublease may be made effective
according to law, Subtenant agrees that it will protect and indemnify
Sublandlord and Landlord and save Sublandlord and Landlord harmless from and
against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, attorneys' fees and
expenses) imposed upon or incurred by or asserted against Sublandlord or
Landlord by reason of: (i) any accident, injury to or death of persons or damage
to or loss of property, by theft or otherwise, occurring on or about the Sublet
Premises or any part thereof, unless arising out of the negligence of
Sublandlord or Sublandlord's agents or employees; and (ii) any failure on the
part of Subtenant to perform, fulfil or observe any of Subtenant's
representations, warranties or agreements set forth in this Sublease. In case
any action, suit or proceeding is brought against Sublandlord by reason of any
such occurrence, Subtenant, upon Sublandlord's request, shall at Subtenant's
expense, cause such action, suit or proceeding to be resisted and defended by
counsel designated by Subtenant's insurance carrier and reasonably acceptable to
Sublandlord.
6.3 No Sublandlord Maintenance, etc. Obligation
Notwithstanding anything contained in this Sublease to the
contrary, Sublandlord shall not have any obligation to construct, maintain,
alter or repair the Sublet Premises, the Building, or any parking area or other
facility or improvement thereon or appurtenant thereto or to provide Subtenant
with any service of any kind or description whatsoever, nor shall Sublandlord
be responsible for the performance of Landlord's obligations under the
Xxxxxxxxx or be liable in damages or otherwise for any negligence of Landlord or
for any damage or injury suffered by Subtenant as a result of any act or failure
to act by Landlord or any default by
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Landlord in fulfilling its obligations under the Xxxxxxxxx. If Landlord shall
default in any of its obligations to Sublandlord, Sublandlord shall cooperate
with Subtenant, upon request by Subtenant and at Subtenant's sole cost and
expense, in enforcing Sublandlord's rights against Landlord under the Xxxxxxxxx.
6.4 Insurance
Any insurance carried by Subtenant with respect to the Sublet
Premises and property therein or occurrences thereon shall include a clause or
endorsement denying to the insurer rights of subrogation against Sublandlord to
the extent rights have been waived by Subtenant prior to the occurrence of
injury or loss and shall name Sublandlord as an additional insured party.
Subtenant, for itself, its successors and assigns, notwithstanding any provision
of this Sublease to the contrary, hereby waives any rights of recovery against
Sublandlord or its successors and assigns, for injury or loss due to hazards
covered by insurance to the extent of the injury or loss covered thereby.
6.5 No Liability For Landlord Default
Sublandlord will not incur any liability whatsoever to
Subtenant for any injury, inconvenience, incidental or consequential damages
incurred or suffered by Sublandlord as a result of the exercise by Landlord of
any of the rights reserved to Landlord under the Xxxxxxxxx, nor shall such
exercise constitute a constructive eviction or a default by Sublandlord
hereunder, unless due to Sublandlord's breach of its covenants, obligations or
representations herein.
6.6 Condition of Sublet Premises
The Sublet Premises are being leased "as is." Any alteration
to the Sublet Premises by the Subtenant must be approved by the Sublandlord and
the Landlord prior to the
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start of any such work and such approval may be withheld in Sublandlord's and
Landlord's discretion.
6.7 Defaults by Subtenant
If Subtenant fails to pay Base Rent or additional rent under
this Sublease or fails to perform or observe any of this Sublease's terms,
conditions or covenants, then Sublandlord, in addition to and not in limitation
of any rights otherwise available to it, shall have the same rights and remedies
for such default as the Xxxxxxxxx gives Landlord for Tenant's defaults, with the
same force and effect as though this Sublease contained all such provisions
relating to any such default or defaults in full, and Subtenant shall have all
Tenant's obligations under the Xxxxxxxxx, except as this Sublease modifies the
Xxxxxxxxx, for such default. Without limiting the preceding, upon Subtenant's
default, Sublandlord may terminate this Sublease by giving Subtenant written
notice specifying a date, not less than five (5) days from the notice date, on
which this Sublease shall terminate, and on such date this Sublease's Term shall
end. As incorporated in this Sublease, the five (5) day period set forth in
Xxxxxxxxx Section 18 shall be three (3) days and the thirty (30) day period set
forth in Xxxxxxxxx Section 18 shall be twenty (20) days.
7. TERMINATION
If the Xxxxxxxxx is terminated pursuant to the terms of the Xxxxxxxxx
or otherwise: (i) this Sublease shall terminate simultaneously therewith; and
(ii) any unearned rent paid in advance shall be refunded to Subtenant unless
such termination was the result of a breach by Subtenant of any term, covenant
or condition of this Sublease.
8. MISCELLANEOUS
8.1 Notices
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All notices, demands or other communications to be given, made
or sent by either party to the other under this Sublease shall be deemed to have
been fully given, made or sent when made in writing and mailed, by certified
mail, return receipt requested, postage prepaid, addressed to the party at its
address identified at the beginning of this Sublease, or to such other address
or addresses as may from time to time hereafter be designated by the parties by
like notice. A copy of notice to Subtenant shall also be given to Subtenant's
attorney, Xxxxx X. Xxxxxxxxx, Esquire, c/x Xxxxxx & Xxxxxx, One Buckhead Plaza,
0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000; and a copy of notice
to Sublandlord shall also be given to Sublandlord's attorney, Xxxxxx Xxxxxxx,
Esq., c/o Foley, Xxxx & Xxxxx LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000.
8.2 Effect
This Sublease shall be binding upon the parties hereto and
their respective successors and assigns.
8.3 Applicable Law
This Sublease shall be governed by and construed in accordance
with the laws of The Commonwealth of Massachusetts.
8.4 Modification, etc.
Neither this Sublease nor any provision hereof may be waived,
modified, amended, discharged or terminated, except by an instrument in writing
signed by the party against which the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument. This Sublease constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof.
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8.5 Consent of Landlord
The obligations of the parties hereto are conditional upon the
written consent of Landlord to the subletting of the Sublet Premises to
Subtenant.
8.6 Severability
If any term or provision of this Sublease or the application
thereof to any person or circumstance shall to any extent be held invalid or
unenforceable, the remainder of this Sublease or the application of such term or
provision to other persons or circumstances shall not be affected thereby, and
each term and provision of this Sublease shall be valid and enforceable to the
fullest extent permitted by law.
8.7 Waiver, etc.
No failure by Sublandlord to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of such breach, shall constitute a waiver of any such
breach or of any such term. Sublandlord's consent in one instance hereunder
shall not relieve Subtenant of the requirement of obtaining Sublandlord's
consent in any other instance.
8.8 No Broker
Subtenant and Sublandlord hereby represent and warrant that
neither has not dealt with any broker in connection with the transactions
contemplated by this Sublease except The Staubach Company, as to Subtenant and
CB Xxxxxxx Xxxxx/Whittier Partners, as to Sublandlord both of whose commissions
and/or consulting fees shall be paid by Sublandlord) and shall each indemnify
the other for the failure of this representation and warranty.
8.9 Assignment and Sublease.
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Subtenant shall not assign, transfer or otherwise encumber
this Sublease or any interest in this Sublease, by operation of law or
otherwise, nor sublet or otherwise permit others to use all or part of the
Sublet Premises, and any such assignment, transfer, encumbrance, sublease or
other arrangement shall be void. Notwithstanding any other term in this
Sublease, any transfer, hypothecation, assignment or change in control of
Subtenant's stock, or the stock of its parent corporation, shall be deemed a
sublease or assignment of this Sublease or an event giving Sublandlord the right
to terminate this Sublease.
8.10 Warranties and Representations.
Subtenant represents and warrants that in entering into this
Sublease, Subtenant has not relied on any person's statements or representations
concerning the Sublet Premises or any other matter concerning this Sublease,
but has relied solely upon such investigations, examinations and inspections as
Subtenant has chosen to make or have made. Subtenant acknowledges that
Sublandlord has given Subtenant ample opportunity to fully investigate, examine
and inspect the Sublet Premises and the building and land of which the Sublet
Premises are a part.
8.11 Security Deposit.
At the time of execution of this Sublease, Subtenant shall pay
to Sublandlord a security deposit in the amount of Sixty-Four Thousand and
No/100 Dollars ($64,000.00) as security for the performance of the obligations
of the Subtenant to be performed in accordance with this Sublease. At the time
of execution of this Sublease, Subtenant shall also pay to Sublandlord the first
months rent.
8.12 Holding Over
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In the event Subtenant shall not immediately surrender the
Sublet Premises on the expiration or earlier termination of the Sublease,
Subtenant shall be obligated to pay monthly installments of Base Rent in an
amount equal to one hundred fifty percent (150%) times the Base Rent.
9. PARKING
Subtenant shall have the right to park twenty (20) passenger motor
vehicles in the parking area adjacent to the Building, subject to the provisions
of Section 2 of the Xxxxxxxxx. Subtenant shall pay the rental value of the
parking spaces as determined by the Landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed under seal by their duly authorized officers as of date first above
written.
SUBLANDLORD:
net.Genesis Corp.
By: /s/ Xxxx Xxxxx
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Its Chief Financial Officer
Hereunto duly authorized
SUBTENANT:
WL-Boston, Inc.
By: /s/ Xxxx X. Xxxxxxxx
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Its Xxxx X. Xxxxxxxx, its Vice President
Hereunto duly authorized
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