Exhibit 10.5
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT, dated June 15, 1999, between xXxxx.Xxx, Inc., a
Delaware corporation, with its principal place of business in Burlington,
Vermont ("Landlord"), and NYBOR Corporation, a Vermont corporation, with its
principal place of business in Williston, Vermont ("Tenant").
The Landlord lets to the Tenant and Tenant hires from the Landlord
approximately 2,500 square feet of office space located in the first floor of
the office building located at 185 Xxxxx Xxxxx Lane, Williston, Vermont (the
"Premises"), for use as offices for the term commencing June 15, 1999 and
expiring May 31, 2001 at the rental amount set forth herein, and fit up as
described in Exhibit A attached hereto.
The Tenant agrees to the following:
1. Payment. To pay Landlord without demand or set off, rent in the
amount of Twenty-Six Thousand One Hundred Twenty-Five and 00/100 Dollars
($26,125.00) per year, payable in equal monthly installments of Two Thousand One
Hundred Seventy-Seven and 08/100 Dollars ($2,177.08) on the first day of each
month, in advance, commencing on June 1, 1999 and continuing through the term of
the Sublease.
2. Repairs. At its expense, to keep the premises in good repair,
ordinary wear and tear, repairs to the roof, exterior of the building, and
structural repairs excepted, unless such repairs are made necessary by the
Tenant's act or negligence. Landlord shall be responsible for maintenance and
repair of the building grounds and for snow removal. At the expiration of the
term the Tenant shall remove its goods and effects and peaceably yield up the
premises to the Landlord in as good condition as when delivered to Tenant,
ordinary wear and tear, damage by fire, the elements, act of public enemy, or
casualty excepted. All notices to quit or vacate are expressly waived, any law,
usage or custom to the contrary notwithstanding. Tenant shall be responsible for
janitorial services for the Premises.
3. Compliance with Regulations. Comply promptly with all laws,
ordinances, requirements, and regulations of the federal, state, county,
municipal and other authorities, the fire insurance underwriters, and insurance
organizations or associations. However, the Tenant shall not be required to make
alterations to the exterior of the building, or alterations of structural
nature.
4. Viewing Premises. During the last three (3) months of this Sublease,
or any extension thereof, to permit the Landlord to show the premises to
prospective tenants. At any time during the term the Landlord, its landlord, or
either's agents, may enter the premises for the purpose of examining their
condition or making repairs in any part of the building. However, the Landlord
does not assume any liability for the care or supervision of the premises or
appurtenances.
5. Assignment. The Tenant shall not make or permit to be made any
alterations or additions to the premises, assign, mortgage, or pledge this
Sublease, or sublet the whole or any part of the premises without the Landlord's
written consent. Such consent shall apply solely to the particular transaction
consented to and shall not constitute the Landlord's waiver of the provisions of
this Sublease.
6. Insurance. The Tenant shall not leave the premises unoccupied during
the term, or by any act or omission cause an increase in the rate of insurance
or the cancellation of any insurance policy. If any increase in the rate of
insurance iscaused by the Tenant's occupancy, the Tenant shall pay on demand the
amount of the increase, and in default of such payment, the amount may be added
to the next installment of rent as additional rent. The Tenant shall furnish the
Landlord with public liability insurance policies issued by insurance companies
licensed to do business in the State of Vermont and in amounts totaling one
million dollars ($1,000,000.00). To the extent permitted by such policies of
each, and without voiding the insurance provided thereby, Landlord and Tenant
hereby waive their rights of subrogation.
7. Signs. The Tenant shall not install awnings, advertisements, or signs
on any part of the premises without the Landlord's written consent, which
consent shall not be unreasonably withheld.
8. Taxes and Utilities. The Tenant shall pay one-third of all electric,
security and gas fuel costs for the building of which the Premises form a part.
Landlord shall xxxx Tenant monthly for such costs. Tenant shall pay its pro rata
share of any increase over the current amount of taxes imposed on the real
property.
9. Indemnification. The Landlord shall not be responsible for any defect
or change of condition in the premises, or for any damage thereto, or to any
person, or to goods or things contained therein due to any cause except the
Lessor's act or negligence. The Tenant shall indemnify the Landlord from all
claims, demands and actions arising in connection with the Tenant's use of the
property, or the use by any person occupying the premises during the term
hereof, or by reason of any breach or nonperformance of any covenant herein, or
the Tenant's violation of any law or regulation.
10. Fire Damage. If the premises are so damaged by fire, other casualty,
or other or act of public enemy so as to be substantially destroyed, this
Sublease shall terminate and any unearned rent paid in advance by the Tenant
shall be apportioned and refunded to it. However, if the premises are not
substantially destroyed, and such damage is covered by Landlord's fire and
casualty insurance, then the Landlord will promptly repair and restore same to
substantially the condition in which they were immediately prior to occurrence
of such casualty, using the proceeds of the insurance. A just proportion of the
rent shall xxxxx according to the extent to which the premises have been
rendered untenantable until they have been restored. The Tenant shall give the
Landlord immediate notice of any damage to the premises.
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11. Default and Remedies. If any one or more of the following events
("Events of Default") shall occur:
(a) If the Tenant shall fail to pay any Basic Rent; or other sum payable
hereunder as the same becomes due and payable; or
(b) If the Tenant shall fail to perform or comply with any terms of this
Lease other than those referred to in paragraph (a) above or with any term of
any other agreement between the parties, and such failure shall continue for
more than 15 days after the Tenant receives notice or knowledge of such failure;
or
(c) If the Tenant shall make a general assignment for the benefit of
creditors or shall admit in writing its inability to pay its debts as they
become due, or shall file a petition in bankruptcy, or shall be adjudicated a
bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or shall file an
answer admitting or not contesting the material allegations of a petition filed
against it in any such proceeding, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of the Tenant or any
material part of its properties; or
(d) If, within 60 days after the commencement of any proceeding against
the Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statut,
law or regulation, such proceeding shall not have been dismissed or stayed (or
within 60 days after the expiration of any such stay such proceeding shall not
have been dismissed), or if, within 60 days after the appointment without the
consent or acquiescence of the Tenant of any trustee, receiver or liquidator of
the Tenant or of any material part of its properties, such appointment shall not
have been vacated or stayed (or within 60 days after the expiration of any such
stay such appointment shall not have been vacated); or
(e) If the Tenant shall default in the payment of any indebtedness for
borrowed money, or shall fail to perform or comply with any of the terms of any
such indebtedness, or of any instruments relation thereto, and such default or
failure shall continue beyond any grace period provided with respect thereof,
and such default or failure shall not have been waived, bonded or cured; or
(f) If the Tenant or its shareholder or directors shall take any action
looking to the dissolution or liquidation of the Tenant; or
(g) If a final judgment which, with other outstanding final judgments
against the Tenant, exceeds an aggregate of $100,000 shall be rendered against
the Tenant, and if, within 60 days after the expiration of such stay, such
judgment shall not have been discharged.
Then and in such event, regardless of the pendency of any proceeding which has
or might have the effect of preventing the Tenant from complying with the terms
of this Lease, the Landlord may at any time thereafter, during the continuance
of any such default, give a
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written termination notice to the Tenant specifying a date (not less than ten
days from the date of giving such notice) on which this Lease shall terminate,
and on such date, subject to the provisions of this Lease relating to the
survival of Tenant's obligations, the term of this Lease shall terminate by
limitation and all rights of the Tenant under this Lease shall cease unless
before such date (1) all arrears of Basic Rent, Additional Rent and all other
sums payable by the Tenant under this Lease, together with interest thereon at
the rate of 12% per annum, and all costs and expenses (including, without
limitation, attorneys' fees and expenses) incurred by or on behalf of the
Landlord shall have been paid by the Tenant, and (2) all other defaults at the
time existing under the Lease shall have been fully remedied to the satisfaction
of the Landlord. All costs and expenses incurred by or on behalf of the Landlord
(including, without limitation, attorneys' fees and expenses) occasioned by the
default by the Tenant under this Lease shall constitute Additional Rent
hereunder.
12. Additional Rent. If the Landlord makes expenditure for which the
Lessee is responsible, or if the Tenant fails to make any required payment under
this Sublease, Landlord may add such amount to any current or future installment
of rent.
13. Condemnation. If all or any part of the Premises are taken or
condemned for a temporary or permanent public or quasi-public use, the Landlord
may terminate this Sublease.
14. Notices. All notices or other documents under this Sublease shall be
in writing and delivered personally to the party to be notified or sent by
registered or certified mail addressed to such party at its last known address.
15. Sublease. This is a sublease. The Landlord's interest in the
premises is as tenant under an underlying Lease made by Airmouse House Ltd.
Partnership dated ______, 1999, a copy of which (with financial terms removed),
initialed for identification, is attached hereto. This Sublease is expressly
made subject to all the terms and conditions of the underlying lease, with the
exception of rental amounts provided in Section 1. The Tenant shall use the
premises in accordance with the terms of the underlying lease and not do or omit
to do anything which will breach any of its terms. If the underlying lease is
terminated, this Sublease shall terminate simultaneously and any unearned rent
paid in advance shall be refunded to the Tenant, if such termination is not the
result of a breach by the Tenant of the within Sublease. The Tenant shall assume
the obligation for performance of all the Landlord's obligation under the
underlying lease.
16. Quiet Enjoyment. Landlord covenants that the Tenant upon paying the
rent and complying with the provisions of this Sublease, shall peaceably and
quietly have, hold and enjoy the Demised Premises for the term of this Sublease.
17. Non-waiver.
(a) No agreement to accept a surrender of the Demised Premises prior to
the expiration of the Lease Term shall be valid unless in writing and signed by
an authorized representative of Landlord. The delivery of keys by or on behalf
of Tenant for any part of
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the Demised Premises to any employee or partner of Landlord or to Landlord's
agent or any employee of such agent shall not operate as a termination of this
Sublease or as a surrender of the Premises.
(b) The failure of Landlord or Tenant to seek redress for violation or
breach of, or to insist on the strict performance of, any covenant of this
Sublease whether by express waiver or otherwise, shall not be construed as a
waiver of any subsequent violation or breach or the same covenants.
(c) The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Sublease shall not be deemed a waiver of such breach.
(d) The failure of Landlord to enforce any of the rules and regulations
against Tenant or any other tenant in the Property shall not be deemed a waiver
of any such rule or regulation.
(e) Landlord's consent to, or approval of, any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant.
18. Accord and satisfaction. No payment by Tenant or receipt by Landlord
of a less amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall an endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in the Lease provided. Partial payment shall
only be construed as an accord and satisfaction if specifically set forth in a
separate instrument signed by Landlord.
19. Severability. It is the intention of the parties hereto that if any
provision of this Sublease is capable to two constructions, one of which would
render the provision valid, then the provision shall have the meaning which
renders it valid. If any term or provision or any portion thereof of this Lease,
or the application thereof to any person or circumstances, shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
20. Entire Agreement, Applicable Law. This Sublease with any exhibits
and riders attached hereto contains the entire agreement of the parties and no
representations, inducements, promises or agreements not embodied herein shall
be of any force or effect, unless the same are in writing and signed by or on
behalf of the party to be charged. The captions of particular sections are
inserted as a matter of convenience and in no way affect or define the scope or
intent of this Sublease or any provision thereof. This Sublease shall be
governed by and interpreted in accordance with the laws of the State of Vermont.
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21. Captions. The captions and numbers appearing herein are inserted
only as a matter of convenience and are not intended to define, limit, construe,
or describe the scope or intent of any section or paragraph, nor in any way
affect this Sublease.
22. Binding Effect. The provisions of this instrument shall be binding
upon and inure to the benefit of both parties and their respective legal
representatives, successors, and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the date first-above written.
In the Presence of: xXxxx.Xxx, Inc.
/s/ By: /s/
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NYBOR Corporation
/s/ By: /s/
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