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EXHIBIT 10.23
[CB COMMERCIAL LOGO] SUBLEASE
1. PARTIES.
This Sublease, dated September , 1998, is made between Connecticut Surety
Group ("Sublessor"), and Borealis Technology Corporation ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated October 1, 1996,
wherein Rahlves and Rahlves, Inc. ("Lessor") leased to Sublessor the real
property located in the City of Reno, County of Washoe, State of Nevada,
described as Suite 200, a 10,296 square foot suite at 0000 Xxxxxxx Xxxxx
("Master Premises"). Said lease has been amended by the following
amendments None; said lease and amendments are herein collectively referred
to as the "Master Lease" and are attached hereto as Exhibit "A."
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): all of Suite 200.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease has
not been amended or modified except as expressly set forth herein, that
Sublessor is not now, and as of the commencement of the Term hereof will
not be, in default or breach of any of the provisions of the Master Lease,
and that Sublessor has no knowledge of any claim by Lessor that Sublessor
is in default or breach of any of the provisions of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on November 7, 1998
("Commencement Date"), or when Lessor consents to this Sublease (if such
consent is required under the Master Lease), whichever shall last occur,
and end on May 6, 1999 ("Termination Date"), unless otherwise sooner
terminated in accordance with the provisions of this Sublease. In the
event the Term commences on a date other than the Commencement Date,
Sublessor and Sublessee shall execute a memorandum setting forth the actual
date of commencement of the Term. Possession of the Premises
("Possession") shall be delivered to Sublessee on the commencement of the
Term. If for any reason Sublessor does not deliver Possession to Sublessee
on the commencement of the Term, Sublessor shall not be subject to any
liability for such failure, the Termination Date shall not be extended by
the delay, and the validity of this Sublease shall not be impaired, but
rent shall xxxxx until delivery of Possession. Notwithstanding the
foregoing, if Sublessor has not delivered Possession to Sublessee within
thirty (30) days after the Commencement Date, then at any time thereafter
and before delivery of Possession, Sublessee may give written notice to
Sublessor of Sublessee's intention to cancel this Sublease. Said notice
shall set forth an effective date for such cancellation which shall be at
least ten (10) days after delivery of said notice to Sublessor. If
Sublessor delivers Possession to Sublessee on or before such effective
date, this Sublease shall remain in full force and effect. If Sublessor
fails to deliver Possession to Sublessee on or before such effective date,
this Sublease shall be cancelled, in which case all consideration
previously paid by Sublessee to Sublessor on account of this Sublease
shall be returned to Sublessee, this Sublease shall thereafter be of no
further force or effect, and Sublessor shall have no further liability to
Sublessee on account of such delay or cancellation. If Sublessor permits
Sublessee to take Possession prior to the commencement of the Term, such
early Possession shall not advance the Termination Date and shall be
subject to the provisions of this Sublease, including without limitation
the payment of rent.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum rent,
without deduction, setoff, notice, or demand, at CityPlace II, 15th
Floor, 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000-0000 or at such other
place as Sublessor shall designate from time to time by notice to
Sublessee, the sum of per Attachment A Rent Schedule Dollars ($_____)
per month, in advance of the first day of each month of the Term.
Sublessee shall pay to Sublessor upon execution of this Sublease the
sum of Eighty Five Thousand Seven Hundred Fourteen Dollars
($85,714.00) as rent for term of lease. If the Term begins or ends on
a day other than the first or last day of a month, the rent for the
partial months shall be prorated on a per diem basis. Additional
provisions: None
6.2 Operating Costs. If the Master Lease requires Sublessor to pay to
Lessor all or a portion of the expenses of operating the building
and/or project of which the Premises are a part ("Operating Costs"),
including but not limited to taxes, utilities, or insurance, then
Sublessee shall pay to Sublessor as additional rent One Hundred
percent (100%) of the amounts payable by Sublessor for Operating Costs
incurred during the Term. Such
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additional rent shall be payable as and when Operating Costs are
payable by Sublessor to Lessor. If the Master Lease provides for the
payment by Sublessor of Operating Costs on the basis of an estimate
thereof, then as and when adjustments between estimated and actual
Operating Costs are made under the Master Lease, the obligations of
Sublessor and Sublessee hereunder shall be adjusted in a like manner;
and if any such adjustment shall occur after the expiration or earlier
termination of the Term, then the obligations of Sublessor and
Sublessee under this Subsection 6.2 shall survive such expiration or
termination. Sublessor shall, upon request by Sublessee, furnish
Sublessee with copies of all statements submitted by Lessor of actual
or estimated Operating Costs during the Term.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease the
sum of Fourteen Thousand Two Hundred Eighty-Five Dollars ($14,285.00) as
security for Sublessee's faithful performance of Sublessee's obligations
hereunder ("Security Deposit"). If Sublessee fails to pay rent or other
charges when due under this Sublease, or fails to perform any of its other
obligations hereunder, Sublessor may use or apply all or any portion of the
Security Deposit for the payment of any rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which Sublessor
may become obligated by reason of Sublessee's default or breach, or for any
loss or damage sustained by Sublessor as a result of Sublessee's default or
breach. If Sublessor so uses any portion of the Security Deposit, Sublessee
shall, within ten (10) days after written demand by Sublessor, restore the
Security Deposit to the full amount originally deposited, and Sublessee's
failure to do so shall constitute a default under this Sublease. Sublessor
shall not be required to keep the Security Deposit separate from its
general accounts, and shall have no obligation or liability for payment of
interest on the Security Deposit. In the event Sublessor assigns its
interest in this Sublease, Sublessor shall deliver to its assignee so much
of the Security Deposit as is then held by Sublessor. Within ten (10) days
after the Term has expired, or Sublessee has vacated the Premises, or any
final adjustment pursuant to Subsection 6.2 hereof has been made, whichever
shall last occur, and provided Sublessee is not then in default of any of
its obligations hereunder, the Security Deposit, or so much thereof as had
not theretofore been applied by Sublessor, shall be returned to Sublessee
or to the last assignee, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for General office and
computer software development, and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part
of the Premises without the prior written consent of Sublessor (and the
consent of Lessor, if such is required under the terms of the Master
Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease as if Sublessor were the lessor
thereunder, Sublessee the lessee thereunder, and the Premises the Master
Premises, except for the following:
none
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Sublessee assumes and agrees to perform the lessee's obligations under the
Master Lease during the Term to the extent that such obligations are
applicable to the Premises, except that the obligation to pay rent to
Lessor under the Master Lease shall be considered performed by Sublessee
to the extent and in the amount rent is paid to Sublessor in accordance
with Section 6 of this Sublease. Sublessee shall not commit or suffer any
act or omission that will violate any of the provisions of the Master
Lease. Sublessor shall exercise due diligence in attempting to cause
Lessor to perform its obligations under the Master Lease for the benefit
of Sublessee, if the Master Lease terminates, this Sublease shall
terminate and the parties shall be relieved of any further liability or
obligation under this Sublease, provided however, that if the Master Lease
terminates as a result of a default or breach by Sublessor or Sublessee
under this Sublease and/or the Master Lease, then the defaulting party
shall be liable to the nondefaulting party for the damage suffered as a
result of such termination. Notwithstanding the foregoing, if the Master
Lease gives Sublessor and right to terminate the Master Lease in the event
of the partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other arising out of or in connection with this Sublease, the prevailing
party shall be entitled to recover its costs of suit and reasonable
attorney's fees.
12. AGENCY DISCLOSURE:
Sublessor and Sublessee each warrant that they have dealt with no other
real estate broker in connection with this transaction except: CB
COMMERCIAL REAL ESTATE GROUP, INC. who represents Borealis Technology
Corporation and CB Xxxxxxx Xxxxx, Inc., who represents Connecticut Surety
Group. In the event that CB COMMERCIAL REAL ESTATE GROUP, INC. represents
both Sublessor and Sublessee, Sublessor and Sublessee hereby confirm that
they were timely advised of the dual representation and that they consent
to the same, and that they do not expect said broker to disclose to either
of them the confidential information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor shall
pay Broker a real estate brokerage commission in accordance with
Sublessor's contract with Broker for the subleasing of the Premises, if
any, and otherwise in the amount of per listing agreement ________________
Dollars ($________________), for services rendered in effecting this
Sublease. Broker is hereby made a third party beneficiary of this Sublease
for the purpose of enforcing its right to said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All
notices and demands by the Sublessor to Sublessee shall be sent by United
States Mail, postage prepaid, addressed to the Sublessee at the Premises,
and to the address hereinbelow, or to such other place as Sublessee may
from
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time to time designate in a notice to the Sublessor. All notices and demands by
the Sublessee to Sublessor shall be sent by United States Mail, postage prepaid,
addressed to the Sublessor at the address set forth herein, and to such other
person or place as the Sublessor may from time to time designate in a notice to
the Sublessee.
To Sublessor: CITYPLACE II, 15th Floor, 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000
To Sublessee: 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxx 00000
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY LESSOR
WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS REQUIRED UNDER
THE TERMS OF THE MASTER LEASE.
16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights Act and all
amendments thereto, the Foreign investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
Sublessor: Connecticut Surety Corp. Sublessee: Borealis Technology
By: /s/ XXXXXX X. XXXXXXX By: /s/ X. X. XXXXXX
Title: Vice President Title: CFO
By:_________________________________ By:_________________________________
Title:______________________________ Title:______________________________
Date:_______________________________ Date:_______________________________
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Lessor:__________________________
By:______________________________
Title:___________________________
By:______________________________
Title:___________________________
Date:____________________________
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the
legal sufficiency or tax consequences of this document or the transaction to
which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist, or other
person, with experience in evaluating the condition of the property,
including the possible presence of asbestos, hazardous materials and
underground storage tanks.
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EXHIBIT 10.23
ATTACHMENT A
RENT SCHEDULE
Months 1 through 6 $85,714.00 for the six month term payable in
advance. Payment to be received by 5:00 PM EST,
Friday, October 2, 1998.
Sublessor /s/ Xxxxxx X. Xxxxxxx Date 10-5-98
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Sublessee /s/ Illegible Date 10-6-98
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