EXHIBIT 10.24
AGREEMENT FOR SUB-SUBLEASE
This AGREEMENT FOR SUB-SUBLEASE (the "Agreement") is made this 20th
day of May 1998 at Xxxxxx County, Texas by and between The Software Atelier
L.L.C., a Texas limited liability company ("Software Atelier") and Empower
Health Corporation ("Empower Health") (together the "Parties").
RECITALS
WHEREAS on March 20, 1998, RGK Rentals Ltd., a Texas limited
partnership and the fee owner of the building at 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxxx, Xxxxx ("RGK") (the "Building"), as lessor, has entered into a lease with
ASF, a Delaware corporation ("ASF"), as lessee, for the whole Building together
with the related parking, driveways and landscaped areas, more particularly
described in such lease (the "Premises") attached hereto as Exhibit A to
Appendix 1 (the "Main Lease"); and
WHEREAS Software Atelier, as sublessee, has entered into a sublease
agreement attached hereto as Appendix 1, with ASF, as sublessor, on April 20,
1998 for two floors of office space in the Building (the "Subleased Premises")
(the "Main Sublease"); and
WHEREAS Empower Health, as sub-sublessee, desires to lease a portion
of the. premises subleased by Software Atelier, as sub-sublessor, under the Main
Lease and Software Atelier desires to grant such demise,
NOW THEREFORE the Parties enter into this Agreement to formalize their
intentions.
AGREEMENT
1. Interpretation.
1.1. Capitalized terms used in this Agreement shall have the
same meanings as those terms in. the Main Lease, unless otherwise defined
herein.
1.2. Headings used in this Agreement are for convenience only
and should not be used to interpret the provisions of this Agreement.
1.3. References to paragraphs and appendices are to paragraphs
and appendices of this Agreement unless otherwise noted.
1.4. Words of any gender used in this Agreement shall be
construed to include any other gender, and words in the singular shall include
the plural and vice versa, unless the context requires otherwise.
1.5. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
1.5.1. "Annual Rent Per Square Foot Rates" shall mean
the annual rent per square foot rates for the time periods shown in paragraph
7.1.
1.5.2. "Base Area" shall mean the area defined in
paragraph 9.1.
1.5.3. "Common Areas" shall mean and include all areas,
facilities,
equipment, directories and signs of the Building made available for the common
and joint use and benefit of occupants of the Building including, but not
limited to, lobbies, public washrooms, hallways, sidewalks, parking areas,
landscaped areas and service entrances. Common Areas may further include such
areas in adjoining properties under reciprocal easement agreements, operating
agreements or other such agreements now or hereafter in effect and which are
available to ASF, Software Atelier, Empower Health and Empower Health's
employees and invitees.
1.5.4. "Date of this Agreement" shall mean the date
first above written.
1.5.5. "Empower Health Premises" shall mean the
premises demised under this Agreement, more particularly defined in paragraph 2.
1.5.6. "Hazardous Substance" shall mean any. substance
that has toxic, corrosive, flammable or reactive properties and that is
regulated by the State of Texas or the United States Government. Hazardous
Substances include, but are not limited to, asbestos, polychlorobiphenyls
(PCBs), flammable explosives, radioactive materials, chemical carcinogens,
pollutants, effluent contanimants, emmissions and petroleum.
1.5.7. "Member Companies" shall mean those companies
who rent space in the Building from Software Atelier and may be provided other
services by Software Atelier.
1.5.8. "Pro Rata Share" shall mean the ratio of Empower
Health Premises total rentable area to the total rentable area of the Building
(53,984 square feet);
1.5.9. "Rent" shall mean the sum of the Base Rent (as
defined in paragraphs 7.1 to 7.4) and Empower's Add-On (as defined in paragraph
7.5).
1.5.10. "Software Atelier Private Equity Fund" or "Fund"
shall mean the fund related to the venture limited partnership which Software
Atelier is attempting to form in which Software Atelier will be the General
Partner and may consist of between $4 million and $ 10 million.
1.5.11. "Security Deposit" shall mean the security
deposit of $10,633 (ten thousand six hundred thirty-three dollars) pre-paid to
Software Atelier by Empower Health on May 6, 1998 under the Letter of Xxxxxx
Xxxxxxx of May 6, 1998, a copy of which is attached hereto as Appendix 2.
1.5.12. "Term" shall mean the term of this Agreement as
defined in paragraph 3;
1.5.13. "Utilities" shall mean the utilities provided by
RGK and ASF under the Main Lease and Main Sublease, respectively, including but
not limited to 24 hour heating, ventilation and air conditioning, gas, water and
electricity for the Building;
2. Demise. In consideration for the mutual promises contained
herein, Software Atelier hereby demises and leases exclusively to Empower Health
and Empower Health hereby takes sections of that portion of the Building known
as the "Second Floor North" as shown on the plan attached hereto as Exhibit 13
to Appendix 1 to Empower Health during the Term, subject to the terns of the
Main Lease, Main Sublease and the provisions of this Agreement, according to the
following schedule (the "Empower Health Premises"), TO HAVE AND HOLD:
Rentable Space
Period (square feet)
The Date of this Agreement - Sept. 30, 1998 5,800* (Base Area)
Oct. 1, 1998 - Dec. 31, 1998 8,120*
Jan. 1, 1999 - Oct. 31, 2000 11,020*
*Rentable space shall include a common area factor of 16%, which
relates to the 16% ratio of the common area of the Building to the total space
of the Building.
3. Term. The Term of this Sublease shall commence on the Date of
this Agreement and end on October 31, 2000, unless otherwise terminated under
this Agreement.
4. Covenants of Main Lease and Main Sublease. This Agreement is
subject to and subordinated to the Main Lease and Main Sublease. Except as may
be inconsistent with the terms hereof, all the covenants of RGK under the Main
Lease and ASF under the Main Sublease are applicable to this Agreement with the
same force and effect as if Software Atelier was the landlord under the Main
Lease and Main Sublease.
5. Duty to Prevent Forfeiture. Software Atelier shall perform all of
the tenant's obligations under the Main Sublease during the Term. including the
payment of all rent and its pro rata share of increases in Forecast Additional
Rental and Additional Rental (as defined in the Lease) in excess of the Forecast
Additional Rental for 1998 and the Additional Rental for 1998. 1998 shall be the
base year for measuring such increases. Software Atelier shall neither do nor
permit anything to be done, nor omit to do anything which would cause the Main
Sublease to be terminated or forfeited by reason of `my right of termination or
forfeiture reserved or vested in ASF under the Main Lean.
6. Warranty. Software Atelier represents and warrants that:
6.1. it is the sole owner of the sublessee's interest under the
Main Sublease and it has not sold, assigned, sublet, transferred, mortgaged or
otherwise conveyed or encumbered its interest as sublessee in the Main Sublease;
6.2. it has all right power, legal capacity and authority to
enter into and perform its obligations under this Agreement;
6.3. except for the approval of ASF under the Main Sublease
which Software Atelier shall obtain on the Date of this Agreement, no approvals
and consents are necessary for Software Atelier to perform its obligations under
the Main Sublease;
6.4. execution of this Agreement and performance of the
obligations of Software Atelier herein will not violate any law applicable to
Software Atelier,
6.5. as of the date hereof, no event of default exists under
the Main Sublease, nor is Software Atelier aware of any default or breach of any
of the provisions of the Main Lease;
6.6. Software Atelier has not undertaken any act or omission,
which may, after the passage of time, constitute a default under the Main
Sublease; and
6.7. the Utilities shall be provided to the Empower Health
Premises in such amounts and quality as is adequate for Empower Health's
intended use.
7. Payment of Rent.
7.1. Empower Health agrees to pay Software Atelier base rent
for the Empower Health Premises in accordance with the rent schedule set forth
below (the "Base Rent"):
Annual Rent Per
Period Monthly Rent Square Foot
The Date of this Agreement - $10,633 $22.00
Sept. 30, 1998
Oct. 1, 1998 - Dec. 1, 1998 $14,887 $22.00
Jan. 1, 1999 - July 31, 1999 $20,203 $22.00
Aug. 1, 1999 - Oct. 31, 2000 $20,663 $22.50
7.2. For the rental period commencing on the Date of this
Agreement and ending on the eve of 7.2. the day marking one month from the Date
of this' Agreement (the "First Month Anniversary"), Software Atelier shall apply
the $10,633 (ten-thousand six hundred thirty-three dollars) paid to Software
Atelier by Empower Health's prepayment of rent on May 6, 1998 under the Letter
of Xxxxxx Xxxxxxx of May 6, 1998, a copy of which is attached hereto as Appendix
2. Thereafter, Rent shall be payable monthly in advance on the first day of each
calendar month during the Term. The second payment of Rent (minus any deductions
for failure to deliver the Empower Health Premises on the a Delivery Date as
described in paragraph 8) therefore shall be due on June 1, 1998 and shall be
applied to the period of the First Month Anniversary through the eve of the day
marking the second month from the Date of this Agreement. If the Term ends on a
day other than the first or last day of a rental month, the Rent for the partial
months shall be prorated on a per them basis.
7.3. Payment of Base Rent shall cover the Pro Rata Share of the
following services which Empower Health shall receive and Software Atelier shall
provide as part of this Agreement during the Term: all Utilities for the Empower
Health Premises and the Common Areas; janitorial service for the Empower Health
Premises and the Common Areas; security for the Empower Health Premises and the
Common Areas; Building receptionist; maintenance for the Common Areas; Building
taxes; use of the following Common Areas: breakroom, workout room and showers
located on the second. floor, use of PBX, voice mail systems and installed
computer cabling.
7.4. Base Rent shall not include the following: any build-out;
telephone handsets, inbound and outbound telephone circuits; communications
moves, adds or changes. These items may be arranged through Software Atelier for
additional charges.
7.5. Empower Health shall pay its Pro Rata Share of any
increases in Forecast Additional Rental and Additional Rental (as defined such
terms are defined in the Main Lease) from the Forecast Additional Rental for
1998 and the Additional Rental for 1998 (together, "Empower's Add-On").
7.6. Empower Health may rent additional space in the Building
during the Term,
subject to the execution of a mutual agreement of the Parties as evidenced by an
amendment to this Agreement and ASF's consent to such amendment. For each square
foot of additional space rented by Empower Health during the Term beyond that
set forth in schedule shown in paragraph 7.1, Empower Health shall pay Base Rent
at the Annual Rent Per Square Foot Rates.
8. Software Atelier's Work.
8.1. Software Atelier shall fit out the Empower Health Premises
in accordance with Software Atelier's obligations as set forth in the work
letter in Appendix 3 ("Software Atelier's Work").
8.2. Software Atelier shall deliver the Empower Health Premises
to Empower Health with all of Software Atelier's Work completed on or before the
date falling ten (10) calendar days from the Date when Empower Health provides
the Software Atelier with specifications or requirements for work outlined in
appendix 3. For every day after the Delivery Date, on which Software Atelier's
Work is not complete, the Parties have negotiated and agreed `deducted from the
because of the difficulty of ascertaining damages that there shall be Rent the
money which would otherwise be due as Rent on a per diem basis (e.g., $354 per
day).
8.3. If Software Atelier is delayed in completing Software
Atelier's Work by strike, shortages of labor or materials, delivery delays or
other matters beyond the reasonable control of Software Atelier, then Software
Atelier shall give notice thereof to Empower Health and the Delivery Date shall
be postponed for an equal number of days as the delay as set forth in the
notice.
8.4. If, however, delays exceed thirty (30) days, then Empower
Health upon notice to Software Atelier shall have the right to terminate this
Agreement without liability to Empower Health. In case of such termination, the
Parties have negotiated and agreed that Empower Health's fair and reasonable
damages shall be all the actual expenses which Empower Health has incurred in
negotiating this Agreement in reliance upon Software Atelier's representation
that Software Atelier's Work would be completed by the Delivery Date (the
"Termination Damages"). Software Atelier shall pay Empower Health such
Termination Damages upon presentation of an invoice with supporting
documentation by Empower Health.
9. Software Atelier's Covenants.
9.1. Upon notice from Empower Health given preferably 60 days
in advance, that Empower Health will not need all of the Empower Health Premises
beyond the base am of 5800 rentable square feet (the "Base Area"), Software
Atelier shall make an aggressive best faith effort to lease the unneeded portion
of the Empower Health Premises ("Unneeded Premises") to third parties. Software
Atelier shall offer any of its prospective tenants the Unneeded Premises as a
priority before any of the other available Subleased Premises. Software Atelier
shall. endeavor to make such third party leases consistent in term with Empower
Health's expected future needs for space.
9.1.1. If Software Atelier can lease the whole of such
Unneeded Premises, any rent from third party leases shall be applied to reduce
Empower Health's obligations to Pay Rent for space in excess of the Base Area.
9.1.2. If Software Atelier cannot lease any of such
Unneeded Premises, then at any time after October 1, 1998 and contingent on the
creation of the Fund, Software Atelier shall reduce by half Empower Health's
obligations to pay Rent for such Unneeded Premises.
9.1.3. If Software Atelier can only lease a part of
such Unneeded Premises,
then (i) with regard to the portion of such Unneeded Premises occupied under a
third party lease or leases, Empower Health shall not be obliged to pay Rent and
(ii) with regard to the remaining portion of the Unneeded Premises and
contingent on. the creation of the Fund, Software Atelier shall reduce by half
Empower Health's obligations to pay Rent.
9.2. Software Atelier shall notify Empower Health if it obtains
knowledge that ASF has committed a default or breach of the Main Lease such that
RGK could elect to exercise one of its "Remedies in Default" under section 15 of
the Main Lease.
9.3. If ASF under the Main Sublease or RGK under the Main Lease
fail to perform any of their respective obligations, including without
limitation any obligations to maintain, repair or restore any portion of the
Empower Health Premises, or to operate, maintain, repair or restore the Common
Areas, Software Atelier shall, immediately upon receipt of notice from Empower
Health, use diligent efforts to compel ASF to (i) perform its obligations under
the Main Sublease or (ii) compel RGK to perform RGK's obligations under the Main
Lease. Without limiting the foregoing, Empower Health shall have the same right
to bring suit, jointly with Software Atelier or, with Software Atelier's prior
consent (which shall not be unreasonably withheld, delayed or conditioned),
unilaterally, against ASF to specifically enforce such obligations. Software
Atelier agrees upon the request of Empower Health to assign to Empower Health,
during the Term jointly the right or claim which Software Atelier may have under
the Main Sublease to specifically enforce such obligations.
10. Empower Health's Covenants. Empower Health shall comply with the
Rules and Regulations of the Building provided in Exhibit B attached to the Main
Lease in so far as such Rules and Regulations relate to the Empower Health
Premises.
11. Quiet Enjoyment. So long as Empower Health is not in default
under the terms and provisions of this Agreement, Empower Health shall peaceably
hold and enjoy the Empower Health Premises during the Term.
12. Signs. Empower Health shall have all of the rights of Software
Atelier as tenant under the Sublease to place its exterior signs on the Building
subject to ASF and City of Austin design approval.
13. Parking. During the Term, Software Atelier shall provide and
Empower Health shall have the right to occupy a minimum of fifty (50) parking
spaces in the parking area adjacent to the Building at no cost to Empower
Health.
14. Hazardous Substances. Software Atelier warrants and represents to
Empower Health as follows:
14.1. During the period that Software Atelier has subleased the
Empower Health premises, there has been no storage, production, transportation,
disposal, treatment or release of any Hazardous Substances on or in the Empower
Health Premises. There are no sources of Hazardous Substances on the grounds of
the Building..
14.2. Software Atelier, its agents, employees, contractors, have
complied in all respects with all laws. (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder)
of federal, state, local, and foreign governments (and all agencies thereof)
which have jurisdiction over the Empower Health Premises concerning pollution or
protection of the environment.
14.3. Without limiting the generality of the preceding paragraph
14.2, Software Atelier and its agents, employees, contractors have obtained and
been in compliance with all of the terms and conditions of all permits,
licenses, and other authorizations which are required under such laws, and has
complied, in all respects, with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules, and timetables
which are contained in such laws.
14.4. Software Atelier hereby agrees to indemnify and hold
harmless Empower Health from and against and to reimburse Empower Health with
respect to, any and all claims, causes of action, loss, damage, liabilities,
costs and expenses (including attorneys' fees and court costs) of any and every
character, known or unknown, fixed or contingent, asserted against or incurred
by Empower Health at any time arising out of the presence of any Hazardous
Substances on the Empower Health Premises or in, on or under the Building, the
presence of which was caused by an act or omission of Software Atelier or its
agents, employees, contractors or its former tenants and those tenants'
respective agents, employees or contractors. Software Atelier's agreement to so
indemnify and hold harmless Empower Health under this paragraph 14.4 shall
survive the termination of this Agreement.
15. Indemnity for Software Atelier. Provided (i) Software Atelier is
not in default in the performance of its obligations under this Agreement, (ii)
ASF and Software Atelier are not in default in the performance of their
obligations in the Main Sublease, and (iii) ASF is not in default in the
performance of its obligations in the Main Lease, Empower Health agrees that:
15.1. it will indemnify and hold Software Atelier harmless from
all suits, claims and actions of every kind by reason of any breach, violation
or nonperformance of any term or condition on the part of the Empower Health
under this Agreement,
15.2. it will indemnify and hold Software Atelier harmless from,
and against all. suits, claims, actions, damages, liabilities and expenses,
asserted against Software Atelier on account of injuries to persons or damage to
property to the extent that any such damage or injury may be caused, either
proximately or remotely, by any act or omission of Empower Health or any of its
agents, servants, employees, contractors or invitees on the Empower Health
Premises, or if any such injury or damage may in any other way arise from or out
of the occupancy or use of the Empower Health Premises by Empower Health, its
agents, servants, employees, contractors or invitees, except in all instances as
may be caused in whole or in part by the negligence or willful misconduct of
Software Atelier or ASF.
15.3. The provisions of this paragraph 15 are for the benefit of
Software Atelier in relation to the Empower Health Premises only, and no right
of action shall accrue under this paragraph 15 to any third party by way of
subrogation or otherwise.
16. Indemnity for Empower Health.
16.1. Software Atelier and ASF, by ASF's consent to this
Agreement agree to indemnify and hold Empower Health harmless for all suits,
claims, actions, damages, liabilities and expenses asserted against Empower
Health arising out of or attributable to:
16.1.1. any breach, violation or non performance of any
terms or conditions on the part of Software Atelier under this Agreement or as
tenant under the Main Sublease and on the part of the ASF as tenant under the
Lease and as landlord under the Main Sublease; and
16.1.2. injuries to persons or damage to property in or
about the Premises which
are not a part of the Empower Health Premises.
16.2. Software Atelier shall indemnify and hold Empower Health
harmless from and against all claims of any kind whatsoever by reason of any
breach or default on the part of Software Atelier by reason of which the Main
Sublease or Main Lease may be terminated.
17. Security Deposit.
17.1. Software Atelier shall use the Security Deposit only for
the purposes described -in paragraph 10 of the Lease, provided however that such
Security Deposit shall be used only to secure the performance of Empower Health
in this Agreement and shall not be applied to cure any default of ASF or
Software Atelier under the Main Lease or Main Sublease, respectively.
17.2. As set forth in paragraph 10 of the Lease and by ASF's
consent to this Agreement, ASF agrees that the Security Deposit shall be placed
in an interest bearing account or other interest bearing instruments in the name
of ASF.
17.3. If Empower Health performs all of its obligations under
this Agreement, the Security Deposit or as much thereof as has not been applied,
for reasons set forth in paragraph 10 of the Lease in relation only to the
Empower Health Premises, by Software Atelier shall be returned to Empower Health
with accrued interest at the end of the Term.
18. Default In the event Software Atelier breaches any warranty
herein, or fails to observe or perform any covenants, conditions or provisions
of the Main Sublease or this Agreement within fifteen (15) days after notice to
Software Atelier and ASF of such default from Empower Health (or such longer
period as may be necessary to complete said performance, not to exceed thirty
(30) days, provided Software Atelier or ASF has commenced `same within said
period and is diligently proceeding to complete same), during the continuance of
such default, Empower Health shall have the right in addition to any and all
other remedies to which it may be entitled at law or in equity, to terminate
this Agreement and be relieved of all duties and obligations of Empower Health
hereunder, or may, without being under any obligation to do so, at any time
after such default notice and opportunity to cure, cure such default for the
account of and at the expense of Software Atelier. Empower Health may withhold
from the payment of rents or any other sum payable to Software Atelier hereunder
next coming due all costs, expenses and disbursements (including attorneys'
fees) incurred by Empower Health in taking such curative actions, plus interest
at the rate of 10% per annum. All rights and remedies set forth in this
paragraph 18 may be exercised whenever and as often as necessary.
19. Assignments and Subleases. Empower Health shall have the right to
assign or sublet any interest in this Agreement upon written consent of Software
Atelier, not to be unreasonably delayed or withheld.
20. Conditions Precedent. This Agreement shall be of no force and
effect unless and until the following conditions precedent have been met:
20.1. ASF has executed the Sublessor Consent to Sub-sublease and
Estoppel Certificate attached as Appendix 4;
20.2. RGK has executed the Lessor's Covenant to Notify Sublessee
of a Default on the Lease I attached as Appendix 5;
20.3. ASF has established an account for the Security Deposit to
the satisfaction of
Empower Health as set forth in paragraph 17; and
20.4. Software Atelier has caused the Sublease or a memorandum
about it to be recorded in the real property records in Xxxxxx County, Texas.
21. Recording. Empower Health shall be entitled to record this
Agreement or a memorandum about it in the real property records in Xxxxxx
County, Texas.
22. Brokerage Commissions. Software Atelier and Empower Health each
represent and warrant to the other that there are no agreements or claims for
brokerage or finder's fees in connection with the execution of the Agreement and
Software Atelier. Empower Health each agree to indemnify the other against, and
hold it harmless from, all liabilities arising from any such claim (including,
without limitation, the reasonable cost of attorneys' fees and other costs in
connection therewith).
23. Miscellaneous Provisions.
23.1. Texas Law to Apply. This Agreement shall be construed
under and in accordance with the laws of the State of Texas, and all obligations
of the parties created hereunder are capable of performance in Xxxxxx County,
Texas.
23.2. Parties Bound. This Agreement shall be binding on and
inure to the benefit of the Parties and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
23.3. Waivers. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a waiver
of a subsequent breach of the same covenant term or condition. The consent or
approval of either party to, or of any act by, the other party requiring such
consent or approval, shall not be deemed to waive or render unnecessary consent
to or approval of any subsequent similar act.
23.4. Legal Construction. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, that invalidity, illegality or
unenforceability y shall not affect any other provision and this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been included.
23.5. Relationship of the Parties. Nothing contained in this
Agreement shall be deemed or construed as creating the relationship of principal
and agent or of partnership or joint venture. Neither the method of computing
rent nor any other provision contained herein nor any acts of the parties hereto
shall be deemed to create any relationship between the parties other than that
of landlord and tenant.
23.6. Prior Agreements Superseded. This Agreement constitutes
the sole agreement of the parties and supersedes any prior understandings or
written or oral agreements between the parties respecting this subject matter.
23.7. Attorney's Fees. If any action at law or in equity,
including an action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to
recover all costs of court including, without limitation, reasonable attorneys'
fees from the other party, which attorneys' fees may be set out by a court in a
trial ` of such action or may be enforced in a separate action brought for that
purpose, and which fees shall be in addition to any other relief which may be
awarded.
23.8. Counterparts, One Agreement. This Agreement and all other
copies of this Agreement, insofar as they relate to the rights, duties and
remedies of the parties, shall be deemed to be one agreement. This Agreement may
be executed concurrently in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
23.9. Notice. Unless otherwise provided in this Agreement, any
notice, tender or delivery to be given by either party to the other may be
effected by personal delivery in writing or by registered or certified mail,
postage prepaid, return receipt requested.
23.10. Time Of Essence. Time is of the essence in this Agreement.
23.11. Notices. Any notice or designation to be given hereunder
shall be given by placing the notice or designation in the United States mail,
certified or registered, properly stamped and addressed to the address shown
below or such other address as the respective party may direct in writing to the
other, or by personal delivery to such address by a party, or by a delivery
service which documents delivery and such notice or designation shall be deemed
to be received upon such placing in the mails or such delivery:
Software Atelier: The Software Atelier
0000 Xxxxxxxx Xxxx Xxxxx, #000
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxxx
Empower Health: Empower Health Corporation
0000 Xxxxx Xxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
ASF: 0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Facilities Services, Inc.
X.X. Xxx 000000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
IN WITNESS `WHEREOF, the Parties have executed this Agreement to be
effective as of the date first above written.
SOFTWARE ATELIER
By: \s\ Xxx Xxxxxxx
-------------------------
Name: Xxx Xxxxxxx
-------------------------
Title: Managing Partner
-------------------------
EMPOWER HEALTH
By: \s\ X. Xxxxxxx
-------------------------
Names: Xxxxxx Xxxxxxx
-------------------------
Title: Chief Executive Officer
-------------------------
SUBLEASE AGREEMENT
This Sublease is made this 20th day of April, 1998 at Xxxxxx County,
Texas by and between Applied Science Fiction, Inc., (herein, "Sublessor"), and
The Software Atelier, LLC (herein, "Sublessee").
Sublessor is the Lessee under that certain Lease, (the "Main Lease"),
by and between RGK Rentals, Ltd., as Landlord, (herein "Lessor"), and Applied
Science Fiction, Inc., as Tenant, (herein "Sublessor"), executed on or about
March 20,1998 for the portion of the premises described in the Main Lease, known
as 0000 Xxxxxxxx Xxxx Xxxxx (herein, "Lease Premises"), a true and correct copy
of which Main Lease is attached hereto as Exhibit "A" and incorporated herein by
this reference.
In consideration of the mutual promises contained herein, Sublessor
hereby subleases the Leased Premises to Sublessee, subject to the terms of the
Main Lease, and subject further to the provisions of this Sublease Agreement, as
follows:
1. Sublessee hereby agrees to abide by and observe all the terms,
covenants and conditions of the Main Lease.
2. The term of this Sublease shall commence May 12, 1998, and end
October 31, 2000, provided, however, that this Sublease shall sooner terminate
upon the termination for any cause whatsoever of the Main Lease.
3. Insofar as the provisions of the Main Lease do not conflict with
the specific provisions of this Sublease Agreement, they and each of them are
incorporated Into this Sublease as If fully completely rewritten herein, and
Sublessee agrees to be bound to the Sublessor by all the terms of the Main Lease
and to assume towards Sublessor and perform all the obligations and
responsibilities that Sublessor, by the Main Lease, assumes towards the Lessor
with respect to the Leased Premises only, except for the payment of rent by
Sublessee to Sublessor, which is governed by Paragraph 4 herein. Sublessee
further agrees to Indemnify and hold harmless Sublessor from any claim or
liability under the Main Lease or arising from the sublease for the premises
located In the Building. The.. relationship between Sublessee and Sublessor
shall be the same as that between Sublessor and Lessor under the Main Lease.
4. Sublessee agrees to pay Sublessor, as total rent for the Leased
Promises, per the rent schedule listed below, payable in advance on- the first
day of each calendar month during the term of this Sublease. In addition,
Sublessee shall pay pro rata share of Increases In Operating Expenses (1998 Base
Year), If any. Rental Rate is to Include janitorial service, HVAC service,
after-hours HVAC, and all other Operating Expenses referred to in the Lease
(again, using 1998 as Bass Year). The following rental schedule Is based upon
the square footages indicated in parentheses it is understood that the then-
current rental rate for the period will apply to any additional square footage
subleased in excess of the following takedown schedule.
May 12,1998 - July 11, 1998 $13,600/mo *(8,868- sf, $20)
July 12,1998 - Sep 30, 1998 $14,780/mo (8,868 sf, $20)
Oct 1,1998 - Dec 3l,1998 $23,752/mo (14,251 sf, $20)
Jan 1, 1999 - Jul 31, 1999 $28,585/mo (17,151 sf, $20)
Aug 1, 1999 - Oct 31, 2000 $29,300/mo (17,151 sf, $20.50)
*(First two months' rent does not include the approximate 600 square
feet being provided as conference rooms to Software Atelier members, as well as
one administrative office.)
5. The following events shall be deemed to be events of default by
Sublessee under the Sublease, any event of default by Sublessee noted as events
of default by Tenant set forth in the Main Lease, or any default in the
provisions of this Sublease Agreement. Upon the occurrence of any such events of
default, and in addition to any other available remedies provided by law or in
equity, Sublessor shall have all remedies granted to Lessor In the Main Lease.
6. Upon Execution of this Sublease, Sublessee shall deposit with
Sublessor the sum of Thirteen Thousand Six Hundred Dollars ($13,600), as a
security deposit to be held by Sublessor pursuant to the provisions of the Main
Lease.
7. Time is of the essence of this Sublease, and each and all terms
hereof.
8. Any notice or other communication required or permitted to be
given under this Sublease or under the Main Lease shall be In writing and shall
be deemed to be delivered on the date It Is hand delivered to the party to whom
such notice is given, at the address set forth below, or if such notice Is
mailed, on the date on which it Is deposited in the United States Mail, postage
prepaid, certified or registered mail, return receipt requested, addressed to
the party to whom such notice is directed, at the address set forth below:
Sublessor shall immediately forward to Sublessee copies of all notices it
receives from Lessor regarding the Leased Premises.
If to Sublessor:
SERVICES, INC.
P. 0. Xxx 000000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
APPLIED SCIENCE FICTION, INC.
0000 Xxxxxxxx Xxxx Xxxxx #000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
If to Sublessee:
THE SOFTWARE ATELIER
0000 Xxxxxxxx Xxxx Xxxxx #000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxx
9. Sublessee shall have no right to assign or sublet any interest in
this Sublease without first obtaining written consent of the Lessor and
Sublessor, which consent shall not be reasonably withheld.
10. Sublessor shall have no liability to Sublessee for any wrongful
action or default on the part of Lessor pursuant to the terms of the Main Lease,
and Sublessee hereby agrees to look solely to Lessor in event of any of any such
default, the liability and obligations of Sublessor being solely pursuant to the
terms and conditions of this Sublease Agreement.
11. In the event any one or more of the provisions contained in this
Sublease Agreement shall for any reason be held Invalid, Illegal, or
unenforceable In any respect, such Invalidity, illegality, or unenforceability
shall not affect any other provision hereof and this agreement shall be
construed as H such Invalid, illegal or unenforceable provisions had never been
contained herein.
12. This agreement constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings and written or oral
agreements between the parties respecting -the subject matter of this Sublease
Agreement.
13. Upon the consent of Lessor as set forth below, Sublessor
represents that it has the authority to enter Into this Lease and that, so long
as Sublessee pays all amounts due hereunder and performs all other covenants and
agreements herein set forth, Sublessee shall peaceably and quietly have, hold
and enjoy the Leased Premises for the term hereof without hindrance or
molestation, subject to the terms and provisions of this Sublease.
14. Sublessee shall have right of first refusal on space labeled as
Area A on attached Floorplan ("Exhibit B") and shall have three business days to
match an offer to lease such space by a third party. If such space Is taken by
Sublessee, terms and conditions consistent with Sublessee's other space In the
building shall apply.
15. It is understood that Sublessee will have use of break area,
workout area and showers on second floor of building, which is included as a
part of common area.
16. It is understood that Sublessee will be signing for the subleased
space and responsible for payment. However, it is also understood that
organizations under the Software Atelier umbrella will be subleasing from
Sublessee.
17. Sublessee shall have the right for 90-day increment periods of
renewal should Sublessor not need the space.
18. PMRI (a member of The Software Atelier) will provide a written
guaranty (attached as Exhibit "D") of the portion of space it will be occupying.
This will be approximately 5800 square feet upon occupancy, growing to
approximately 8120 square feet by October 1, 1998, taking the remainder of the
north wing of the second floor January 1, 1999.
19. It is understood that if Sublessor needs any portion of the space
occupied by the Sublessee for the use of Sublessor, the Sublessee will make
every effort to relocate. If requested, the Sublessee will relocate member
companies (or affiliates) within the building. Upon 90 days' notice, the
Sublessee will relocate up to 50% of its then current occupied space to outside
the building. Upon 180 days' notice, the Sublessee will relocate up to 100% of
all Sublessee space (members and affiliates) outside the building. The space
occupied and guaranteed by PMRI is excluded from this moveout provision. Rent
will be adjusted accordingly to reflect diminished space.
20. Sublessor will provide a receptionist for the building on the
ground floor. It is anticipated that receptionist will require sign-in of all
guests to the building. It is also understood that entrance to the building will
be limited to card key access after normal business hours.
21. Incorporated as a part of this Sublease Agreement as Exhibit "C"
pertaining to telephone and computer writing, telephone service, computer
network service and telephone and network service
availability.
EXECUTED on the day and year first above written.
SUBLESSOR: Applied Science Fiction, Inc.
By:
--------------------------------
Title:
SUBLESSEE: The Software Atelier, LLC
By: \s\ X.X. Xxxxxxx Xx.
--------------------------------
Title: Managing Member
CONSENT BY LESSOR
0000 Xxxxxxxx Xxxx Xxxxx, Lessor under the Main Lease. referred to in
this Sublease Agreement, hereby consents to the foregoing Sublease Agreement and
agrees to be bound by the provisions of 13 thereof.
LESSOR:
--------------------------------
By:
--------------------------------
Title:
--------------------------------
BALCONES NORTH
OFFICE BUILDING
OFFICE LEASE AGREEMENT
LEASE AGREEMENT
BY AND BETWEEN
RGK RENTALS, LTD., AS LESSOR
AND
APPLIED SCIENCE FICTION, INC.
AS LESSEE
March 19, 1998
LEASE AGREEMENT
STATE OF TEXAS (S)(S)
(S)
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX
1. PARTIES. This Lease Agreement (the "Lease") is made and entered
into by and between RGK RENTALS, LTD., a Texas limited partnership (hereinafter
referred to as the "Lessor") and APPLIED SCIENCE FICTION, INC., a Delaware
corporation (hereinafter referred to as "Lessee").
2. LEASED PREMISES. In return for the consideration, covenants and
agreements hereinafter set forth to be paid, observed and/or performed by
Lessee, Lessor hereby demises * and lets unto Lessee, and Lessee does hereby
lease from Lessor, that certain real property and improvements including an
approximately 53,984 rentable square foot building (the "Building") together
with the related parking, driveways and landscaped. areas, locally known: as
0000 Xxxxxxxx Xxxx Xxxxx in Xxxxxx, Xxxxxx County, Texas, legally described as
Xxx 0, Xxxxx X, Xxxxx Xxxxxxxx Xxxxxxxxxxx, Xxxxxxx X-X, Xxxx of Austin,
recorded at Volume 80, Page 286 of the Plat Records of Xxxxxx County, Texas (all
of which is hereinafter collectively referred to as the "Leased Premises")
indicated on the Site Plan attached hereto as Exhibit A.
3. TERM, RENEWAL AND CANCELLATION. The term of this Lease shall
commence on April 1, 1998, ("Commencement Date") and shall end on March 31, 2003
(the. "Term"). Lessee shall have two (2) two-year renewal options at then market
rates. Market rates shall be governed by Exhibit D attached hereto. In the event
Lessee desires to exercise such option to renew this Lease, Lessee shall give
Lessor 180 days prior written notice of such exercise. After the first thirty-
six (36) months of this Lease, Lessee shall have the night to cancel the Lease
by giving Lessor one-hundred and eighty (180) days written notice and by paying
Lessor Two Hundred and Fifty Thousand Dollars ($250,000) plus the then
unamortized portion of the cost of Lessor's -Allowance for Improvements (as
defined in paragraph 22 herein) and brokerage fees. Any ` sublease agreements,
pursuant to paragraph 18 below, shall contain appropriate. cancellation
provisions, reflecting Lessees right to terminate this Lease contained in this
Paragraph 3.
4. COMMENCEMENT OF LESSEE'S POSSESSION. On -March 20, 1998, -Lessee
has possession of the Leased Premises subject to all the terms of this Lease,
with the exception of the payment of rent which will commence on April 1, 1998,
as more fully described below.
5. RENTAL PAYMENTS.
(a) Commencing on the Commencement Date and continuing
throughout the Term, Lessee hereby agrees to pay the Base Rental as described in
paragraph 6, plus Forecast Additional Rental and Additional Rental as described
in paragraph 7. The Base Rental and Forecast Additional Rental shall be due and
payable in equal installments on the first day of each calendar month during the
Term and any renewals extensions thereof, and Lessee hereby agrees to make such
payments monthly in advance to Lessor at Lessor's address as provided herein (or
such other address as may be designated by Lessor from time to time).
(b) If the Term commences or term month or terminates on other
than the last day of a calendar month, then tile installments of Base Rental and
Forecast Additional Rental for such month or months shall be prorated: and the
installment or installments so prorated shall be paid in advance. The payment
for such prorated month shall be calculated by multiplying the monthly
installment by a fraction, the numerator of which shall be the number of days of
the Term occurring during said commencement or' termination month, as the case
may be, and the denominator of which shall be the total number of days occurring
in said commencement or termination month. Also, if. the Term commences or
terminates on other than die first day of a calendar year, Additional Rent shall
be. prorated for such commencement or termination year, as the case may be, by
multiplying each by a fraction,. the numerator of which shall be the number of
days of the Term during the commencement or termination year, as the case may
be, and the denominator of which shall be 3.65.
(c) Lessee shall pay all rent and other sums of money as they
shall become due and payable to Lessor under this Lease at tile time and in the
manner provided herein, without demand, set-off or counterclaims. At Lessor's
option, Lessee shall pay (i) five percent (5%) of the monthly rent (including
Base Rental, Forecast Additional Rental and all other sums owed by Lessee to
Lessor under the provisions this Lease), if same are not fully paid within ten
(10) days of the due date as specified herein, or (ii) $25.00 per day from due
date (if not paid within ten (10) days of due date) until all sums due,
including late charges, are paid in full. The parties hereby agree that such
charges represent a fair and reasonable estimate of expenses Lessor would incur
by reason of Lessee's late payments. Acceptance of such late charge by Lessor
shall neither constitute a waiver of Lessee's default nor, in the event of
Lessee's default, shall it prevent Lessor from exercising any rights or remedies
specified herein or otherwise.
6. BASE RENTAL. (Beginning -on April 1, 1998, Lessee shall pay td
Lessor a monthly rental (the "Base Rental') as follows:
April 1, 1998 until September 30,1998 $20,625.00 per month
October 1, 1998 until December 31, 1998 $35,291.67 per month
January 1, 1999 until March 31, 1999 $49,485.33 per month
April 1, 1999 until March 31, 2000 $58,482.67 per month
April 1, 2000 until March 31, 2002 $62,981.33 per month
April 1, 2002 until March 31, 2003 $71,978.67 per month
7. ADDITIONAL RENTAL.
(a) Beginning on the Commencement Date and continuing
thereafter for each calendar year during the Term, Lessor shall present to
Lessee, prior to the beginning of said period, a statement of Forecast
Additional Rental. Lessee shall pay Forecast Additional Rental in equal monthly
installments in advance. "Forecast Additional Rental shall mean Lessor's
reasonable estimate of Additional Rental. Lessee shall be liable also for any
Additional Rental.
(b) The term "Additional Rental" shall mean Lessor's Actual
Operating Expenses (defined below in paragraph 8) for the Leased Premises
incurred during each calendar year.
(c) By April 1 of each year during the Term, or as soon as
possible thereafter, Lessor shall provide Lessee a statement showing the Actual
Operating Expenses for the twelve-month period then ended, and a statement
prepared by Lessor comparing Forecast Additional Rental with Additional Rental.
In the event that Forecast Additional Rental exceeds Additional Rental for said
calendar year, Lessor shall pay Lessee
(in the form of a credit against rentals next due) an amount equal to such
excess. In the event that the Additional Rental exceeds Forecast Additional
Rental for said calendar year, Lessee shall pay Lessor, within thirty (30) days
of receipt of the statement, an amount equal to such difference. The calculation
described in this paragraph 6(c) shall be made as soon as possible after the
termination of the Lease, and all provisions of this Lease relating to said
calculation shall survive the termination of this Lease.
8. LESSOR'S ACTUAL OPERATING EXPENSES. Lessor shall pay all of
Lessor's Actual Operating Expenses," which term shall include solely the
following:
(a) Ad valorem taxes for the Leased Premises.
(b) Casualty insurance on the Leased Premises to be carried by
Lessor as described in paragraph 12 below.
9. LESSEES OPERATING EXPENSES. Lessee is responsible for paying when
due Lessee's Operating Expenses for the Leased Premises. The term "Lessee's
Operating Expenses" shall mean the aggregate all of operating and maintenance
expenses incurred by Lessor or Lessee in connection with the Leased Premises,
other than Lessor's Actual Operating Expenses, and shall include without
limitation the following:
(a) The cost of all wages, salaries and any ancillary expenses
of all employees actually engaged in operation and maintenance of the. Leased
Premises, including taxes, insurance and benefits relating thereto.
(b) The cost of all supplies and material used in operation
and maintenance of the Leased Premises.
(c) The cost of all utilities, including but not limited to
electric, gas, water, heating, lighting, air conditioning and ventilation of the
Building.
(d) The cost -of all maintenance, service and operating
agreements for the Leased Premises and related equipment including but not
limited to security service, window cleaning, elevator maintenance and
janitorial service.
(e) The gross cost of liability insurance applicable to the
Leased Premises and Lessor's personal property used in connection therewith;
excluding however cost of casualty insurance on the Building included in Lessors
Actual Operating Expenses.
(f) The cost of all taxes and assessments and governmental
charges whether federal, state, county or municipal, whether they be by taxing
district or authorities presently taxing the Leased Premises or by others,
subsequently -created or otherwise, and any other taxes and assessments
attributable to the Leased Premises or its operator and maintenance or its
operation, excluding only Lessor's federal and state taxes on income, franchise
tax and inheritance tax. Lessee will be responsible for all ad valorem taxes on
its personal property and on the Leased Premises not covered by Lessor's Actual
. Operating Expenses as described above. If any such taxes,' assessments or
charges are paid by Lessor, Lessee will reimburse Lessor therefor, upon Lessor's
demand accompanied by a supporting statement setting forth Lessor's reasonable
calculation of the amount of such taxes chargeable to the Leased Premises.
(g) The cost of repairs, replacements and maintenance on or of
the Leased Premises
(excluding repairs to the structure, foundation and the exterior walls of the
Building or replacement of the roof membrane). Lessee's obligation to maintain,
repair and make replacements to the Leased Premises shall cover, but not be
limited to, pest control (including termites), roof repairs, trash removal and
the maintenance, repair and replacement of all window glass, HVAC, electrical,
plumbing, fire and security and other mechanical systems.
(h) The cost of expenditures, capital or otherwise, made for
the specific purpose of installing equipment, devices or materials intended to
reduce operating expenses of the Building if required by law or regulation of a
governmental authority.
(i) The cost of landscaping and any other costs necessary to
maintain the Leased Premises in a first class condition.
10. SECURITY DEPOSIT. Upon the execution of this Lease, Lessee shall
pay Lessor a security deposit in the amount of Three Hundred Thousand Dollars
($300,000) as security for Lessee's MI performance of all the provisions of this
Lease. If Lessee fails to pay rent or otherwise defaults with respect to any
provision of this Lease, Lessor may use, apply or retain all or any portion of
the security deposit for the payment of Base Rent, Additional Rent, or any other
charge in default, or for the payment of any other sum to which Lessor may
become obligated by reason of Lessee's. default, or to compensate Lessor for any
loss or damage which Lessor may suffer thereby. If Lessor so uses or -applies
all or any portion of the security deposit, Lessee must within five days after
written demand, deposit cash with Lessor in any amount sufficient to restore the
security deposit to the original amount and Lessees failure to do so is a
material breach of this Lease. The security deposit shall be placed in an
interest bearing account or other instruments chosen by Lessee in Lessor's name
at a bank chosen by Lessee. if Lessee performs all of Lessee's obligations
hereunder, the security deposit, or as much thereof as has not been applied by
Lessor shall be returned to Lessee with accrued interest. the end of the twenty-
fourth month of this lease, so long as Lessee has paid all Base Rental and
Additional Rental amounts on or before the due date each month, Lessor will
refund $75,000 of Lessee's security deposit. At the end of the thirty-sixth
month of this lease, so long as Lessee has paid all Base Rental and Additional
Rental amounts on before the due date each month, Lessor will refund $50,000 of
Lessee's security deposit' plus one-half of the accrued interest on Lessee's
security deposit. At the end of the forty-eighth month of this lease, so long as
Lessee has paid all Base Rental and Additional Rental amounts on or before the
due date each month, Lessor will refund 350,000 of Lessee's security deposit
plus one-half of the accrued interest over the last twelve months. Lessee will
request in writing any refunds of its security deposit. Lessee's security
deposit shall never drop below $150,000.
11. LESSEE'S DUTIES.
(a) Use of Leased Premises. The Leased Premises are to be used
and occupied by the Lessee solely for the purpose of general office, engineering
labs and computer rooms and for no other purpose without the prior written
consent of Lessor, which consent shall not be unreasonably withheld. Lessee
agrees not to commit or suffer to be committed on the Leased Premises any
nuisance or other act or thing against public policy or which violates any law
or governmental regulation or which is disreputable or which may disturb the
quiet enjoyment of any sublease of the Building. Lessee will not use, occupy, or
permit the use or occupancy of the Leased Premises for any unlawful,
disreputable, immoral, or hazardous purpose, `or maintain or permit the
maintenance of any public or private nuisance; or keep any substance or carry on
or permit any operation which might emit offensive odors into other portions of
the Building or permit anything to be done which would increase the fire
insurance rate of the Building or contents or which could lead to tile
cancellation of the -fire insurance coverage.
(b) Condition of the Leased Premises. Lessee shall not damage
the Leased Premises and will maintain the Leased Premises in a clean, attractive
condition and in good repair, ordinary wear and tear excepted. Upon termination
of this Lease, Lessee will surrender mid deliver up the Leased Premises in good
order and repair and in the same condition as upon the Commencement Date of this
Lease, ordinary wear and tear excepted.
(c) Compliance with Laws. Lessee will comply with all
applicable federal, state. municipal and other laws, ordinances, rules, and
regulations applicable to the Leased Premises and to the business conducted
therein by Lessee, including without limitation the Americans with Disabilities
Act (collectively, "Applicable Laws"). Within fourteen (14) days of receipt,
Lessee shall forward to Lessor copies of any notices received from any
governmental authority regarding noncompliance with any Applicable Laws. Lessor
represents and warrants to Lessee, that to the -best of Lessor's knowledge, that
at the commencement of the Lease, the Leased Premises are in compliance with all
applicable laws.
(d) Liens. Lessee shall allow no liens to be filed against the
Leased Premises, or any part thereof, and shall promptly cause the release any
liens that are filed against die Leased Premises, or any part thereof
(e) Alterations, Addition and Improvements. Lessee covenants
and agrees not to permit the Leased Premises to be used for any purpose other
than that stated in paragraph 10(a) hereof, or make or allow to be made any
alterations or physical additions in or to the Leased Premises, or place on the
Leased Premises any signs visible from outside the Leased Premises, or place any
safes or vaults (whether movable or not) upon or in the Leased Premises, without
first obtaining the written consent of Lessor. All plans and drawings pertaining
to buildout or remodeling of the Building exterior, corridors or core, shall
first be submitted to Lessor for review and reasonable determination of Lessor's
approval or disapproval. Remodeling and buildout of the general office and lab
areas are excluded from Lessor review. Within 7 days of any and all remodeling,
Lessee will provide Lessor an electronic file and blue line drawing of changes
to the as-built of the Building. Any and all such alterations, physical
additions, or improvements made to the Leased Premises shall at once become the
property of Lessor and shall be surrendered to Lessor upon the termination of
this Lease, whether by lapse of time or otherwise; however, this clause shall
not apply to movable equipment or furniture owned by Lessee, provided no damage
is caused to the Leased Premises by the removal thereof If not in default at the
termination of this Lease, Lessee may remove all such fixtures, equipment,
decoration, furniture or other such items installed by Lessee. Any' damage
occasioned and caused by the installation or removal of such fixtures and
equipment shall be repaired at Lessee's expense. Upon written request ~y Lessor,
Lessee shall remove all such furniture and equipment and repair the damage
caused by the removal of same. In the event Lessee does not remove such
fixtures, equipment and other installed items, Lessor shall have the right to
remove the same and to repair any damage caused by such removal, and Lessee
shall be obligated to pay the cost of such removal and repair.
(f) Rules and Regulations. Lessee shall comply with the Rules
and Regulations of the Building provided in Exhibit B attached hereto and made i
part hereof Lessor reserves the right from time to time, after consultation with
Lessee and upon written notice to Lessee, to make such `changes, additions or
amendments to the Rules and Regulations as it may deem necessary or advisable.
Lessor shall have no liability to Lessee for any failure of any sublessees or
lessees of the Building to comply with such Rules and Regulations.
(g) Operation Lessee shall not place, install, or operate on
the Leased Premises or in any part of the Building any engine, refrigerating,
heating or air conditioning apparatus, stove, or machinery, or
conduct mechanical operations, or place or use in or about the Leased Premises
any inflammable, explosive, hazardous, or odorous solvents or materials without
the prior written consent of Lessor. No portion of the Leased Premises shall at
any time be used for cooking; residential quarters; provided, however, that
Lessee may place refrigerators and microwave ovens in the Building.
(h) Repair and Maintenance. Lessee shall, at its own cost,
repair/replace any damage or injury done to the Leased Premises or any part
thereof caused by Lessee or Lessee's agents, contractors, employees, invitees,
or visitors: If Lessee fails promptly to make such repairs/replacements to the
Leased Premises, Lessor may make such repairs/replacement, and Lessee shall
repay the cost of such repairs/replacement plus ten percent (10%) thereof to
Lessor on demand.
(i) Telephone System.
(i) As part of this Lease, Lessor hereby Leases to
Lessee, the existing telephone system "as is where is", including without
limitation all cabling, telephone switch, telephone instruments, voice mail
system, network cabling in the Building (collectively called the "Telephone
System") as more particularly described on Exhibit C attached hereto for all
purposes. Lessee may, at its own cost, add upgrades to the Telephone System at
any time during the Tenn. Any such upgrades shall become the property of Lessor
and shall remain with the Telephone System after departure of Lessee from the
Leased Premises.
(ii) Lessee shall maintain and pay for telephone
service provided by a third party approved by Lessor. Any existing unexpired
service agreements at the commencement or termination of this Lease shall be
paid in Rill by Lessee or shall be paid by Lessor and reimbursed to Lessor by
Lessee.
(iii) Lessee must not sell, mortgage or part with
possession or control, or attempt to sell, mortgage or part with possession or
control of die' Telephone System, except is provided in paragraph 18 hereof.
(iv) Lessee may not pledge, encumber, create a
security interest in, or permit any lien to become effective on all or any
portion of the Telephone System. On the occurrence of any of these events,
Lessee will be in default. Lessee must promptly notify Lessor of any such liens,
charges, or other encumbrances of which Lessee has knowledge. Lessee must
promptly pay or satisfy any obligation from which any such lien or encumbrance
arises. Lessee must deliver to Lessor appropriate satisfactions, waivers, or
evidence of payment of any such lien or encumbrance.
(v) On the expiration of the Term, or on any earlier
termination of this Lease, Lessee must return the Telephone System to Lessor in
good repair, condition and working order normal wear and tear excepted. In
addition, Lessee will provide Lessor a complete and updated inventory of the
Telephone System.
(j) Signage. Lessee shall be allowed exterior signage on the
Building subject to Lessor and City of Austin design approval.
(k) Lessor Access. Lessor shall have the right to enter upon
and inspect the Leased Premises following reasonable notice to Lessee in
accordance with paragraph 21 (b).
12. QUIET ENJOYMENT. So long as Lessee is not in default under the
terms and provisions of this Lease, Lessee shall peaceably hold and enjoy the
Leased Premises during the said term.
13. INSURANCE; INDEMNITY.
(a) Lessee's Insurance. Lessee shall, at Lessee's; expense,
obtain and keep in force during the term of this Lease:
(i) Comprehensive general liability insurance with
broad form general liability endorsement, in an amount of not less than
$1,000,000 per occurrence of bodily injury and property damage combined, or in a
greater amount as reasonably determined by Lessor, and shall insure Lessee with
Lessor as an additional insured against liability arising out of the use,
occupancy or maintenance of the Leased Premises. Compliance with the above
requirement shall not, however, limit the liability of Lessee hereunder.
(ii) Worker's compensation coverage as required by
law, together with employer's liability coverage, with a limit of not less than
$500,000.
(iii) Fire and extended coverage insurance, with
vandalism and malicious mischief, in an amount sufficient to cover not less than
100% of the full replacement cost, as the same may exist from time to time, of
all Lessees personal property, fixtures, equipment, and tenant improvements.
(b) Insurance Policies. Lessee shall deliver to Lessor copies
of liability insurance policies required under (a) above, or certificates
evidencing the existence and amounts'. of such insurance, within seven (7) days
after- the Commencement Date. No such policy shall be cancelable or subject to
reduction of coverage or other modification except after thirty (30) days prior
written notice to Lessor. Lessee. shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals thereof.
(c) No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance specified in
this Paragraph 13 are adequate to cover Lessees property or obligations under
this Lease.
(d) Hazard Insurance. During the Lease term, Lessor shall
maintain policies of insurance covering loss of or damage to the Leased Premises
in an amount equal to 100% of the replacement value of the Building.. Such
policies shall provide protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), and Inflation Guard endorsement, and any
other perils (except flood and earthquake, unless required by any lender holding
a security interest in the Leased Premises) which Lessor deems necessary.
(e) INDEMNITY. LESSEE, SHALL INDEMNIFY, AND HOLD HARMLESS
LESSOR AND LESSOR'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, GUESTS, INVITEES,
AND LENDERS FROM AND AGAINST ALL LOSSES, CLAIMS, COSTS, DAMAGE, LIABILITY OR
EXPENSES, INCLUDING BUT NOT. LIMITED TO REASONABLE ATTORNEYS' FEES, ARISING OUT
OF- ANY AND ALL INJURIES TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY
ARISING OUT OF ANY OCCURRENCE ON OR IN THE PREMISES, INCLUDING THAT CAUSED BY
THE NEGLIGENCE OF LESSOR, BUT NOT TO THE EXTENT CAUSED BY THE INTENTIONAL ACT OR
GROSS NEGLIGENCE OF LESSOR, OR ARISING FROM ANY BREACH OR DEFAULT IN THE
PERFORMANCE OF ANY OF LESSEE'S OBLIGATIONS UNDER THIS LEASE, OR ARISING FROM ANY
ACT OR OMISSION OF LESSEE OR LESSEE'S DIRECTORS, OFFICERS, CONTRACTORS,
CUSTOMERS, INVITEES, EMPLOYEES. IF ANY ACTION OR PROCEEDING IS BROUGHT AGAINST
LESSOR BY REASON OF ANY SUCH MATTER, LESSEE UPON NOTICE FROM LESSOR SHALL DEFEND
THE SAME AT LESSEES EXPENSE BY COUNSEL REASONABLY SATISFACTORY TO
LESSOR AND LESSOR SHALL COOPERATE WITH LESSEE IN SUCH DEFENSE. LESSOR- NEED NOT.
HAVE FIRST PAID ANY. SUCH CLAIM IN ORDER TO BE SO INDEMNIFIED; LESSEE, AS A
MATERIAL PART OF THE CONSIDERATION TO LESSOR, HEREBY ASSUMES ALL RISK OF DAMAGE
TO PROPERTY OF LESSEE OR INJURY TO PERSONS, IN, UPON OR ABOUT THE LEASED
PREMISES ARISING FROM ANY CAUSE AND LESSEE HEREBY WAIVES ALL CLAIMS IN RESPECT
THEREOF AGAINST LESSOR, EXCEPT TO THE EXTENT CAUSED BY THE INTENTIONAL ACT OR
GROSS NEGLIGENCE OF LESSOR.
(f) Exemption of Lessor from Liability. Lessee hereby agrees
that except to the extent caused by the intentional act or gross negligence of
Lessor, Lessor shall not be liable to Lessee's business or any loss of income
therefrom or for loss of or damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any. other
person in or about the Leased Premises, nor shall Lessor be liable for injury to
the person of lessee, Lessee's employees, agents or contractors, regardless of
whether such damage or injury is caused by or results from theft fire, steam,
electricity, gas, water or rain, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing, air-
conditioning or lighting fixtures, or from any other cause, including the
negligence of Lessor. regardless of whether said damage or injury results from
conditions arising upon the Leased Premises, or of the equipment, fixtures or
appurtenances applicable thereto, and regardless of whether the cause of such
damage or injury or the means of repairing the same is inaccessible. Lessor
shall not be liable for any damages arising from any act or neglect of any other
tenant, occupant or user of the Leased Premises, nor from the failure of Lessor
to enforce the provisions of any lease of any other sublessee of the Leased
Premises.
(g) Waiver of Subrogation. Anything in this Lease to the
contrary notwithstanding, as and to the extent permitted by applicable insurance
policies, Lessor and Lessee each hereby waive any and all rights of recovery,
claim, action, or cause, of action, against the other, its agents, officers, or
employees,- for any loss or damage that may occur to the Leased Premises, or any
improvements thereto, or the Building, or any improvements thereto, or any
personal property of such party therein, by reason of fire, the elements, or any
other cause to the extent but only to the extent the foregoing are insured
against under the terms of standard fire and extended coverage insurance
policies, regardless of cause or origin, including negligence of the other party
hereto, its agents, officers, or employees, and covenants that no insurer shall
hold any right of subrogation against such other' party.
(h) Fire or Other Casualty. The parties hereto mutually agree
that if any time during the Term the Leased Premises or any portion of the
Building are partially (mom than 20% of replacement cost) or totally- destroyed
by fire or other casualty covered by the fire and extended coverage insurance,
the Lessor may, at its option, upon written notice to Lessee, delivered within
sixty (60) days after such occurrence, elect either (i) to promptly repair and
restore the Leased Premises and the Building, as soon as it. is reasonably
practicable, to substantially the same conditions in which the Leased Premises
and the Building were before such damage, or (ii) to terminate the Lease with
such termination to be effective on the date of such fire or other casualty;
provided, however in the event Lessee has occupied and conducted business on the
Leased Premises during the interim between the fire or other casualty and the
delivery of the written notice, the termination will be effective on the date
Lessee last occupied and. conducted business on the Leased Premises.
In the event the Leased Premises are completely destroyed or so
damaged by fire or other casualty covered by the fire and extended coverage
insurance to be carried by Lessor under the terms hereof that it cannot
reasonably be used by Lessee for the purposes herein provided and this Lease is
not, terminated as above provided, then there shall be a total abatement of rent
until the Leased Premises are made usable. In the event the Leased Premises are
substantially destroyed or damaged by fire or other hazard so that the Leased
Premises can be only partially used by Lessee for the purposes herein provided,
then there shall be a partial abatement in the rent corresponding to the time
and extent to which the Leased Premises cannot be used by Lessee.
If the Leased Premises shall be damaged by fire or other casualty
resulting from the fault or negligence of Lessee, or the agents employees,
licensees, or invitees of Lessee, then, to the extent not covered by insurance,
such damage shall be repaired by and at the expense of Lessee, under the
direction and supervision of Lessor, and rent shall continue without abatement.
(i) Condemnation and Loss or Damage. If the Leased Premises.
or any part thereof shall be taken or condemned for any public purpose to such
an extent as to render the remainder of the Leased Premises, in the opinion of
Lessor and Lessee, not reasonably suitable for Lessees .occupancy, this Lease
shall, at the option of either party, forthwith cease and terminate. All
proceeds from any taking or condemnation of the Leased Premises shall belong to
and be paid to Lessor. In addition, Lessor shall not be liable or responsible to
Lessee for any loss or damage to any property or persons occasioned by theft,
fire, act of God, public enemy, -injunction, riot, strike, insurrection, war,.
court order, requisition or order of governmental body or authority, force
majeure `or any other cause beyond the control of Lessor, or for any damage or
inconvenience which may arise through repair or alteration- of any part of the
Buildin& or failure to make repairs, except to the extent caused by the
intentional act or gross negligence of Lessor.
14. DEFAULT BY LESSEE. The occurrence of any one or more of the
following events shall constitute a default and breach of the Lease by Lessee.
(a) The vacating or abandonment of the Leased Premises by
Lessee. Such vacating or abandonment shall be deemed to have occurred upon the
absence of the Lessee from the Leased Premises for ten (10) consecutive days
while Lessee is in default in the payment of any sum to be paid by Lessee
hereunder, during the term of the Lease or any renewals or extensions thereof
(b) The failure by Lessee to make any payment of Monthly
Rental, Additional Rental or Forecast Additional Rental or any other payment
required to be made by Lessee hereunder as and when due, provided such failure
shill continue for a period of ten (10) business days after written notice
thereof by Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or- performed
by the Lessee, other than described in Paragraph 13 (a) and (b) above, where
such failure shall continue for a period of thirty (30) days after written
notice thereof by Lessor to Lessee; provided, however, that if the nature of
Lessee's default is such that more than thirty (30) days are reasonably required
for its cure, then * Lessee shall not be deemed to be in default if Lessee
commences such cure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
(d) The making 6y Lessee, or any guarantor of Lessees
obligations under this Lease, of any general assignment or general arrangement
for the benefit of creditors; or the filing by or against Lessee, or any
guarantor of Lessee's obligations under this Lease, of a petition to have
Lessee, or any guarantor of Lessee's obligations under this Lease, adjudged a
bankrupt, or a petition for reorganization or arrangement under any laws
relating to bankruptcy (unless, in the case of a petition filed against Lessee,
or any guarantor of Lessee's obligations under this Lease, the same is dismissed
within thirty (30) days); or the appointment of a trustee or a receiver to take
possession of substantially all of Lessee's assets located at the Leased
Premises or of interests in this Lease, where possession' is not restored to
Lessee within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of Lessees assets
located at the Leased Premises or -of Lessees interest in this Lease, where such
seizure is not discharged in thirty (30) days.
15. REMEDIES IN DEFAULT BY LESSEE. Except as otherwise required
herein, in the event of any such default or breach by Lessee, from time to time,
in its sole discretion, and without notice and without limiting Lessor in the
exercise of any -other right or remedy which Lessor may be entitled to exercise-
at law or in equity, Lessor may elect to:
(a) Terminate this Lease, after ten (10) business days written
notice to Lessee, and forthwith repossess the Leased Premises and be entitled to
recover as damages a sum of money equal to the total of (1) the cost of
recovering the Leased Premises; (2) all unpaid Base Rental, Additional Rental
and Forecast Additional Rental earned at the time of termination, plus interest
thereon at the. maximum lawful rate; (3) an amount equal to the difference
between (i) the total rental (Base Rental, Additional Rental and Forecast
Additional Rental computed as stated in this Lease) for the remaining portion of
the Term; and (ii.) the then present value of the fair rental value of the
Leased Premises for such period (the parties hereto agreeing that the fair
rental value of the Leased Premises shall be the sum of all rentals to be paid
during such period discounted at the rate of ten percent (10%) per annum); (4)
the cost of repairs or of alteration of the Leased Premises that are the
Lessee's responsibility under this -Lease; (5) that portion of any leasing
commission paid by Lessor applicable to the unexpired term of Lease; and (6) any
other sum of money and damages owed by Lessee to Lessor.
(b) Terminate, after five (5) days written notice to Lessee,
Lessee's right of possession (but not the Lease) and repossess the Leased
Premises by forcible entry or otherwise, without demand or notice of any kind to
Lessee and without terminating this Lease, in which event Lessor may, but shall
be under no obligation to do so, re-let the same for the account of Lessee for
such rent and upon such terms as shall be satisfactory to Lessor. For the
purpose of such re-letting Lessor is authorized to make any repairs, changes,
alterations, or additions in or to Leased Premises that may be desirable,
necessary-or convenient, and, if the same are re-let and a sufficient sum shall
not be realized from such re-letting after paying the unpaid Rental, Additional
Rental or Forecast Additional Rental due hereunder earned but unpaid at the,
time of re-letting, plus interest thereon at a maximum lawful rate, the cost of
recovering possession, and all of the costs and expenses of such repairs,
changes, alterations, and additions and the expenses of such re-letting and of
the collection of the rent accruing therefrom to satisfy all rent provided for
in this Lease to be paid, the Lessee shall satisfy and pay any such deficiency
upon demand therefor from time to time. If Lessor is unable to re-let the Lease
Premises, then Lessee shall pay to Lessor as damages a sum equal to the amount
of all rentals specified in this Lease for the term thereof. Lessee agrees that
Lessor may file suit to recover any sums falling due under the terms of this
paragraph from time to time, and that no delivery or recovery of any portion due
Lessor hereunder shall be any defense to any subsequent action brought for any
amount not previously reduced to judgment in favor of Lessor, nor shall such
reletting be construed as an election on the part of the Lessor to terminate
this Lease unless a written notice of such intention be given to Lessee by
Lessor. Notwithstanding any such re-letting without termination, Lessor may at
any time thereafter elect to terminate this lease for any previous breach.
(c) In the event of Abandonment as defined in paragraph 14(a)
above, of the Leased Premises by Lessee, Lessor may enter the premises to make
inspections, to show prospective tenants and to remove and store any property of
Lessee in the Leased Premises, without terminating this Lease or limiting any
other remedy of Lessor under this Lease. In addition to any' other rights of
Lessor, Lessor may dispose of the stored property if Lessee does not claim such
property within sixty (60) days after the property is stored. Lessor shall
deliver by certified mail to Lessee at Lessee's last known address a notice
stating that Lessor may dispose
of Lessee's property if Lessee does not claim the property within sixty (60)
days after the date the property is stored. Lessee's rights in and to such
stored property and Lessor's obligations as herein set forth with regard to such
stored property-are subject to and subordinated to the landlords lien in and to
all personal property of Lessee on the Leased Premises as set forth in paragraph
15(g). Notwithstanding anything herein to the contrary, upon an abandonment of
the Leased Premises by Lessee, Lessor shall be under no obligation to re-enter
the Leased Premises, store any property or take any other action. In an y such
event Lessor may continue this Lease and recover the full amount of the rent to
be paid hereunder as it comes due.
(d) Pursuit of any remedy by Lessor, whether hereunder or
otherwise, shall never be deemed an election of remedies. Lessee further agrees
that failure by Lessor to use diligence in enforcing its rights against Lessee,
or in requiring performance by Lessee of any of its obligations hereunder or in
preserving the liability of Lessee hereunder, shall not impair, reduce or in any
mariner affect Lessor's rights or remedies hereunder, or Lessee's liability or
obligations hereunder.
(e) Exercise by Lessor of any one or more remedies hereunder
granted or. otherwise available shall not be deemed to be an acceptance of
surrender of the Leased Premises by Lessee, whether by agreement or by operation
of law, it being understood that such surrender can be effected only by the
written agreement of Lessor and Lessee. No removal or other exercise of dominion
by. Lessor over the property of Lessee or others on the Leased Premises shall be
deemed unauthorized or constitute a conversion, Lessee hereby consenting, after
any event of default, to the aforesaid exercise of dominion over Lessee's
property within the Leased Premises. All claims for damages, except to the
property of Lessee or others on. the Leased Premises, by reason of such re-entry
and/or repossession are hereby waived, as are all claims for damages by reason
of any distress warrant, forcible entry and detainer proceedings, sequestration
proceedings or other legal process. Lessee agrees that any re-entry by Lessor
may be pursuant to judgment contained in forcible entry and detainer proceedings
or -other legal proceedings or without the necessity for any legal- proceedings
if such re-entry may be accomplished without force, as Lessor may elect, and
Lessor shall not be liable in trespass or otherwise.
(f) If Lessee should fail to make any payment or cure any
default hereunder within the time herein permitted, Lessor, without being under
any obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Lessee (and enter
the Leased Premises for such purpose), and thereupon Lessee shall be obligated
to, and hereby agrees, to pay Lessor, upon demand, all reasonable costs,
expenses and disbursements (including reasonable attorneys' fees) incurred by
Lessor in taking such remedial action.
(g) In the event that Lessor shall have taken possession of
the Leased Premises pursuant to the authority herein granted, then Lessor shall
have the right to keep in place and use all of the furniture, fixtures,
equipment, and other personal property at the Leased Premises, including that
which is owned by or leased to Lessee, at all times prior to any foreclosure
thereon by Lessor or repossession thereof by any Lessor thereof or third party
having a lien thereon. Lessor shall also hive the right to remove from the
Leased Premises (without notice to Lessee and without the necessity of obtaining
a distress warrant, writ of sequestration or other legal process) all or any
portion of such furniture, fixtures, equipment and other property. located
thereon and place same in storage at any place within Xxxxxx County; and in such
even ~ Lessee shall be liable to Lessor for costs incurred by Lessor in
connection with such removal and storage. Lessor shall also have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming to be entitled
to possession thereof who presents to Lessor a copy of any instrument
represented to Lessor by Claimant to have been executed by Lessee granting
Claimant the right under the circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Lessor to inquire in . to the authenticity of said instrument and without the
necessity of
Lessor making any investigation or inquiry as to the validity of the factual or
legal basis upon which Claimant purports to act.
16. HOLDING OVER. In the e vent of holding over by Lessee after
expiration or termination of this Lease without the written consent of Lessor,
Lessee shall pay monthly as liquidated damages a sum equal to one and one-half
(1 1/2) times the amount of the monthly Base Rental, Forecast Additional Rental
and Additional Rental paid, or to be paid, by Lessee to Lessor for the last
month of the' Term for the entire holdover period. No holding over by Lessee
after the Term of the lease shall operate to extend die Lease. In the event of
any unauthorized holding over, Lessee shall indemnify Lessor against all claims
for damages by any other Lessee to whom Lessor may have leased all-or any part-
of the Leased Premises covered hereby effective upon the termination of this
Lease. Any xxxxxxx over with the consent of Lessor in writing shall thereafter
constitute this Lease a lease from month to month.
17. NON-WAIVER. Failure of Lessor to declare- any default immediately
upon occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such default, but Lessor shall have the. right to declare any
such default at any time and take such action as might be lawful or authorized
hereunder, either at law or in equity.
18. DEFAULT BY LESSOR. Except as may otherwise be provided herein,
Lessor shall not be in default unless Lessor fails to perform obligations
required of Lessor within a reasonable time, but in no event later than thirty
(30) days after written notice by Lessee to Lessor and to the holder of any
first mortgage or deed of trust covering the Leased Premises whose name and
address shall have been furnished previously to Lessee in writing, specifying
wherein Lessor has failed to perform such obligations; provided, however, that
if the nature of Lessor's obligation is such that more than thirty (30) days are
required for performance, then Lessor shall not be in default if Lessor
commences performance within such thirty. (30) day period and thereafter
diligently prosecutes the same to completion. Except as. may otherwise be
provided herein, Lessee shall not have the right to terminate this Lease, it
being agreed that Lessee's remedies shall be limited to actual damages, without,
any award for incidental or consequential damages.
19. ASSIGNMENT AND SUBLETTING.
(a) Lessee may assign the Leased Premises or any part thereof
or sublease, mortgage, pledge, or hypothecate its leasehold interest only with
die prior express written permission of Lessor. Such permission shall not be
unreasonably withheld or delayed. Any attempt to do any of the foregoing without
the prior express written permission of Lessor, shall be void and of no effect
Lessee must furnish to Lessor the name and terms of any proposed assignment or
sublease of each proposed assignee or sublease.
(b) Any assignment or sublease of the leasehold, whether or
not consent is required under the terms of this Lease, and consent to any
assignment or sublease by Lessor, shall not operate to release Lessee " of any
obligation hereunder and Lessee shall remain liable for the performance of all
of the covenants, duties, and obligations hereunder including without limitation
the obligation to pay all rent and other sums herein provided to be paid, and
Lessor-shall be entitled to enforce the provisions of this instrument against
the Lessee and/or against any assignee or sublessee, or either of them, at the
election of Lessor.
(c) Lessee shall give Lessor written notice of the
consummation. of any assignment or sublease consented to by Lessor, shall
furnish to Lessor copies of all assignments,' transfers, subleases, and other
documents executed in connection with such assignment or sublease, and shall
notify Lessor in writing of die date the assignee or sublessee takes possession
of the Leased Premises or a portion thereof.
(d) Lessee shall require or any sublessee a security deposit
equal to at least one month's rent with Lessor to be held pursuant to the terms
of paragraph 9 above.
20. SUBORDINATION. This Lease and Lessee's rights hereunder are and
will remain subordinate to any ground lease, mortgage, deed of trust or any
other hypothecation for security now or hereafter placed upon the Leased
Premises, and to all increases, renewals, modifications, consolidations,
replacements, and extension thereof (collectively referred to as the
"Mortgage'). If the holder of a Mortgage becomes die owner of the Leased
Premises by reason of foreclosure or acceptance of a deed in lieu of
foreclosure, at such holder's election Lessee will be bound to such holder or
its successor-in-interest under all terms and conditions of this Lease, and
Lessee will be deemed to have attorned to and recognized such holder or
successor as Lessor's successor-in-interest for the remainder of the Lease term
or any extension thereof. In such event, the holder of such Mortgage will agree
that, so long as Lessee is not then in default hereunder, such holder will
recognize this Lease and will not disturb Lessee in its possession of the Leased
Premises for any reason other than one which would entitle the Lessor to
terminate this Lease under its terms. The foregoing is self-operative and no
further instrument of subordination and/or attornment will be necessary unless
required by Lessor or the holder of a Mortgage, in which case Lessee will,
within ten (10) days after written request, execute and deliver without charge
any documents reasonably required by Lessor or such holder in order to confirm
the subordination and attornment set forth above. Should the holder of a
Mortgage request that this Lease and Lessee's rights hereunder be made superior;
rather than subordinate, to the Mortgage, then Lessee will, within ten ( 10)
days after written request, execute and deliver without charge such agreement as
may be reasonably required by such holder in order to effectuate and evidence
such superiority of the Lease to the Mortgage.
21. MISCELLANEOUS.
-------------
(a) Attorney's Fees. In case it should be necessary or proper
for Lessor or Lessee to bring any action under this Lease, then the prevailing
party in any such action shall be entitled to reasonable attorneys, fees,
expenses and court costs from the non-prevailing party.
(b) Lessor's Entry/Inspections. With 4 hours' notice, Lessor's
agents and representatives shall have the right to enter the Leased Premises at
any reasonable time during business hours (or at any time in case of emergency)
(i) to inspect the Premises, (ii) to make such repairs as may be required or
permitted pursuant to this Lease, and/or (iii) during the last 180 day period
prior to expiration of this Lease or following notice from Lessee of Lessee's
intent to cancel this Lease pursuant to paragraph 3 `above, for showing the
Leased Premises to any prospective tenant In addition, Lessor shall have the
right to erect a suitable sign on the Leased Premises stating the Leased
Premises are available -for lease. Lessee will provide Lessor with all keys
necessary to enter the Leased Premises in case of an emergency.
(c) No Partnership or Agency. Lessor does not in any way or
for any purpose become a partner of Lessee in the conduct of its business or
otherwise, or a joint venturer with Lessee. Lessee shall not be deemed an agent
of Lessor for any purpose.
(d) Accord and Satisfaction. No payment by Lessee or receipt
by Lessor of a lesser amount than the monthly consideration or other payments
herein stipulated shall be deemed to be other than an account of the earliest
stipulated monthly consideration or other payments then due, or shall any check
or writing accompanying any check or payment as monthly consideration or other
payment provided for herein be deemed an accord or satisfaction; and Lessor may
accept such check or payment without prejudice to Lessor's right to recover the
balance of such monthly consideration or other payments or to pursue other
remedies provided in this Lease or by law.
(e) Acceptance of Leased Premises and Building by Lessee. In
consideration of the Allowance granted by Lessor to Lessee under paragraph 22
hereof, the taking of possession of the Leased Premises by Lessee shall be
conclusive evidence as against Lessee (1) that Lessee accepts the Leased
Premises in "AS IS" condition and as suitable for the purpose for which same is
leased; (2) that it accepts the Building and the' land and each and every part
and appurtenance thereof as being in a good and satisfactory condition; and (3)
that Lessee waives any defects in the Leased Premises and its appurtenances.
Lessor shall not be liable, except in the event of negligence if and to the
extent such liability is indemnified by insurance, and in the event of the
intentional act or gross negligence notwithstanding whether such claim is
indemnified by insurance, to Lessee or any of its agents, employees, and
servants for any injury or damage to person or property due to the condition or
design of or any defect in the Building or its mechanical systems and equipment
which may exist or occur Lessor shall be liable for simple negligence only to
the extent Lessor is indemnified by insurance.
In addition to a visual inspection of the Leased Premises, Lessor
warrants and conveys to Lessee that the Leased Premises are in good working
order at lease commencement including but not limited to: the roof membrane,
HVAC, Telephone System and security system.
(f) Laws Governing. The laws of the State of Texas shall
govern, the interpretation and validity of, and other matters pertaining to,
this lease.
(g) Notice. Any notice which may or shall be given under the
terms of this Lease shall, unless otherwise provided herein, be in writing and
shall be either delivered by hand or sent by United States Registered or
Certified Mail, postage prepaid, to the address below. Such addresses may be
changed from time to time by either party by giving written notice as provided
above. Notice shall be deemed given when delivered (if delivered by Hand) or
when postmarked (if sent by mail).
LESSOR: RGK RENTALS, LTD.
0000 Xxxx 00xx Xxxxxx Xxxxx 000
Xxxxxx, Xxxxx 00000
LESSEE: APPLIED SCIENCE FICTION, INC.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
LESSER: FACILITIES SERVICES, INC.
X.X. Xxx 000000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
(h) Severability. If any clause or provision of this Lease is
illegal, invalid, or unenforceable, under present or future laws effective-
during the term hereof, then it is the intention of the parties hereto that the
remainder of this lease shall not be affected thereby, and it is also the
intention of both parties that in lieu of each clause or provision that is
illegal, invalid, or unenforceable, there be added a:5 a party of this Lease a
clause or provision as similar to in terms to such illegal, invalid, or
unenforceable clause or provision as is enforceable..
(i) Entire Agreement and Binding Effect. This Lease Agreement,
including exhibits A, B, C and D all of which are hereby incorporated herein by
reference, constitute the entire agreement between
Lessor and Lessee; no prior written or prior contemporaneous oral promises or
representations shall be binding. Paragraph captions herein are for convenience
only, and neither limit nor amplify the provisions of this Lease. The provisions
of this Lease shall be binding upon and insure to the benefit of the heirs,
executors, administrator, successors, and assigns of the parties, but this
provision shall * in no way alter the restriction here-in in connection with
assignment and subletting by Lessee.
(j) Assignment by Lessor. Lessor shall have the right to
transfer and assign, in whole or in part, all of its rights and obligations
hereunder and in the Building and the Leased Premises referred to herein.
(k) Alterations. This Lease may not be altered, changed, or'
amended, except by an instrument in writing signed by both parties herein.
(l) Gender. When required for clarity, the masculine gender
shall also include the feminine and neuter.
22. Refurbishment Allowance. Lessor grants to Lessee a refurbishment
allowance of $269,920.00 (the "Allowance) to be used by Lessee for improvements
to and renovation of the Leased Premises (the "Improvements). Upon submission of
invoices and releases by Lessee, Lessor shall promptly reimburse Lessee `for
actual costs incurred in construction' of the Improvements. Lessee is solely
responsible for the cost of any Improvements in excess of the Allowance.
23. Brokerage. Lessor agrees to pay to KAM Properties, Inc. and the
Xxx Xxx Company of Austin, Texas, for services, performed in procurring and
negotiating this agreement as set out in the Commission Agreement executed
February 20, 1998.
EXECUTED this 20th day of March, 1998.
LESSOR: RKG RENTALS, LTD.
By: KMS Ventures, Inc., General Partner
By: \s\ Xxxxxxx X. Xxxxxxxxx, President
-----------------------------------
LESSEE: APPLIED SCIENCE FICTION, INC.
By: \s\ Xxxx Xxxxxx, President and C.E.O.
-------------------------------------
EXHIBIT A
(DIAGRAM APPEARS IN ORIGINAL)
EXHIBIT B
RULES AND REGULATIONS
1. No signs of any kind or nature, symbol, or identifying xxxx shall
be put on the Building, elevators, staircases, entrances, parking areas or upon'
the doors or walls, whether plate glass or otherwise of the Leased Premises nor
within the Leased Premises so as to be visible from the public areas or exterior
of the Building, without prior written approval of Lessor. All signs or
lettering shall conform in all respects to the sign and/or lettering criteria
established by Lessor.
2. Lessee shall not make or permit any loud or improper noises in
the building or otherwise interfere in any way with other Lessees.
3. Lessor will not be responsible for any lost or stolen personal
property or equipment from the Leased Premises or public areas, regardless of
whether such loss occurs when the area is locked against entry or not
4. Lessee, or the employees, agents, servants, visitors, or
licensees of Lessee shall not, at any time or place, leave or discard rubbish,
paper, articles, or objects of any kind whatsoever outside the doors of the
Leased Premises or in the corridors or passageways of the Building. No animals
or vehicles of any description shall be brought into or kept in or about the
building.
5. None of the entries, passages, doors, hallways, or stairways in
the building shall be blocked or obstructed.
6. Lessor shall have the right to determine and prescribe the weight
and proper- position of any unusually heavy equipment, including computers,
safes, large files, etc., that -are to be placed in the building, and only those
which in the exclusive judgment of the Lessor will not do damage to the floors,
structure, and/or elevators may be moved into the Building. Any damage caused by
installing, moving, or removing such aforementioned articles in the Building
shall be paid by Lessee.
7. All Christmas and other decorations must be constructed of flame
retardant materials.
8. All doors reading from public corridors to the Leased Premises
are to be kept closed when not in use.
9. Canvassing, soliciting, or peddling in the Building is prohibited
and Lessee shall cooperate to prevent the same.
10. Lessee shall, give immediate notice to Lessor in case of
accidents in the Leased Premises or in the Building or of defects therein or in
any fixtures or equipment or of any known emergency in the Building.
11. Lessee shall not use the Leased Premises or permit the Leased
Premises to be used for photographic multilith, or multigraph reproductions,
except in connection with its own business without Lessor consent and Lessor.
`will not unreasonably withhold consent.
12. Any damages (excepting normal wear and tear). caused to carpet in
the Leased Premises shall be repaired or replaced at the expense of Lessee.
13. Lessee, or the employees, agent, servants, visitors, or licensees
of Lessee, shall abide by the Rules and Regulations established from time to
time for the parking area.
14. Lessee shall not allow to pass into any sewer, drain, or toilet
serving the Leased Premises or located in the Building any oil, grease or any
other deleterious effluent or substance which may cause an obstruction in or
damage to such sewer, drain, or toilet.
15. All areas within the Building are designated as "no smoking
areas".
16. Lessor reserves the right after consultation with Lessee, to
rescind any of these Rules and Regulations of the Building, and to make such
other and further Rules and Regulations of the Building as in its judgment shall
from time to time be needful for the safety, protection, care and cleanliness of
the Building, the Leased Premises, and the operation thereof, the preservation
of good order therein, and the protection and comfort of the other Lessees in
the Building and their agents, employees, and invitees'. Changes- in these
`Rules and Regulations, when made and written notice thereof is given to Lessee,
shall be binding upon Lessee in like manner as if originally herein prescribed.
Provided, however, such change's shall not operate so as to change the
provisions of the lease agreement between Lessor and Lessee and as long as
changes do not effect normal operations of business that are in place at the
time on a day-to-day basis.
EXHIBIT C
TELEPHONE SYSTEM
A complete inventory of the Telephone System will be. delivered to
Lessee at Lessee's possession of the Leased Premises
EXHIBIT D
FAIR.-MARKET RENTAL RATE
If Lessee elects to renew this Lease, Base Rental and Forecasted
Additional Rental for each renewal-term shall be an amount equal to one hundred
percent (100%) of the Fair Market Rental Rate of the Leased Premises in relation
to market conditions at the time of the extension. The Fair Market Rental Rate
of the Leased Premises shall be determined as follows:
After timely receipt by Lessor of Lessee's notice of exercise of
option to renew the Lease, Lessor and Lessee shall have a period of thirty (30)
days in which to agree on the Fair Market Rental Rate as the Base Rental for the
Leased Premises. If Lessor and Lessee agree on the Fair Market Rental Rate for
the Leased Premises, then they shall immediately execute a new lease.
In the event that Lessor and Lessee are unable to agree as to the Fair
Market Rental Rate of the Leased Premises under a renewal of the Lease within
thirty (30) days after such notice of intent to renew was' given by Lessee,
Lessor and Lessee shall each promptly appoint an appraiser, and the two
appraisers so appointed shall select a third, or if they cannot agree upon a
third appraiser, either party may petition a court of competent jurisdiction for
the appointment of a third appraiser; provided, however, that each appraiser
must be an MAI appraiser with at least five (5) years experience in appraising
real property in Xxxxxx County, Texas. Each party shall be responsible for the
compensation, if any, of the third appraiser. Such appraisers shall each make a
separate appraisal of the Fair Market Rental Rate of the Leased Premises under a
renewal of the Lease and shall deliver copies of their appraisals to Lessor and
Lessee, and the average of the three appraisals shall be the figure designated
as the Fair Market Rental Rate for the purposes of this renewal option. Lessor
and Lessee shall, separately and collectively and in good faith, take any
necessary steps to insure. that all three appraisals are completed within-thirty
(30) days after the appointment of the first appraiser to be appointed. If
Lessee wishes to renew the Lease at the Fair Market Rental Rate determined by
such appraisal, Lessee shall, within ten (10) days after the last appraisal has
been delivered to it give notice in writing to Lessor of Lessee's agreement to
renew the Lease at a rental rate equal to the average of the three appraisals,
which rental rate shall be specified in such notice. Failure by Lessee to timely
give such notice of agreement shall terminate the right of Lessee to renew the
Lease.
(DIAGRAMS APPEAR IN ORIGINAL)
EXHIBIT "C"
Telephone and computer wiring: Rental rate shall be inclusive of all existing
data and voice Wiring. Any extra internal voice
or data wiring necessary to accommodate SA's
Initial office space configuration will be
provided by ASF. If relocation is directed by
SA, SA will pay for the wiring costs incurred.
If relocation's directed by ASF, ASF will pay
for the wiring costs incurred.
Telephone service: ASF will provide PBX service to SA to support
telephone line trunks from the Local Exchange
Carrier (LEC) of SA's choice. SA will be
responsible for contracting for local telephone
service directly from a LEC and will pay all
costs associated with (A) the Installation of
the telephone One trunks, (13) any physicial
modification to the PBX required to support
such Ones and (C) the Initial programming of
the PBX (by Southwestem Xxxx) to add SA to the
system. Once the Ones have been Installed and
programmed, ASF will administer all Internal
PBX moves, adds, and changes for SA.
The rental rate shall include the use of voice
mailboxes on the existing Voice mail system.
These mailboxes will be administered by ASK.
The rental rate shall not Include telephone
handsets. ASF can provide telephone handsets to
SA for an additional cost.
Computer network service: ASF can provide a secure firewalled Internet
connection to SA for an additional cost (based
on SKs bandwidth requirements). This internet
connection will not Include DNS or E Mail
services (which SA must provide themselves or
contract with an Internet service Provider
directly for). ASF can also provide a complete
local area network Infrastructure for SA for an
additional cod (based on SKs network topology
requirements).
Telephone and network service
availability: ASF will make every effort to maintain 0110
highest availability possible on all telephone
and network services provided to SA. However,
ASF will assume no liability for losses due to
telephone or computer network changes.
ATTORNMENT AND NONDISTURBANCE AGREEMENT
THIS ATTORNMENT AND NONDISTURBANCE AGREEMENT is made this day of May,
1998, between Applied' Science Fiction, a Delaware corporation ("ASF") and
Empower Health Corporation, a Texas corporation ("Empower Health'
RECITALS
A. RGK Rentals Ltd.; a Texas limited partnership, as lessor, has
entered into a lease with ASF, as lessee, dated March 20, 1998, demising a
property located at 0000 Xxxxxxxx Xxxx Xxxxx in the City of Austin, County of
Xxxxxx, State of Texas, ("Premises") which Premises are more particularly
described in the lease attached hereto as Exhibit-A to Appendix 1 and made a
part hereof (the "Lease").
B. ASF, as sublessor, intends to enter into a sublease with Software
Atelier, as sublessee, substantially in the form attached hereto as Appendix 1
and made a part hereof, dated April 20, 1998 demising a portion of the Premises
(the "Sublease").
C. Software Atelier, as sub-lessor, and Empower Health, as
sublessee, intend to enter into a sub-sublease with Software Atelier for a
portion of the Premises on the second floor north side, as shown in the plan
attached hereto as Exhibit B to Appendix 1 (the "Empower Health Premises") (the
"Sub-psublease").
D. Empower Health requires as a condition of its leasehold estate
that. the Empower Health Premises be free from encumbrances, except, those
approved by it. However, Empower Health will subordinate its Sub-sublease from
time to time at ASF's request subject to ASF's agreement that Empower Health's
possession and rights under the Subsublease shall not be disturbed.
AGREEMENT
In consideration. of the Empower Health Premises and other good and
valuable consideration, receipt. of which is hereby acknowledged, and the mutual
benefits to accrue -to the parties hereto, it is hereby declared understood and
agreed as follows:
1. Amendments to Lease or Sublease.. ASF shall not, in the exercise
of any of its rights arising or which may arise out of the Lease or Sublease or
of any instrument modifying amending the Sublease or entered into in
substitution or replacement thereof, disturb or deprive Empower Health in, or
of, its possession or its rights to possession of the Empower Health Premises or
of any right or privilege granted to or inuring to the benefit -of Empower
Health Corporation under the Sub-sublease.
2. Nondisturbance. In the event of termination of the Sublease for
any reason by reentry, notice, conditional limitation, surrender summary
proceeding or other action or proceeding, and- if immediately prior to such
surrender, termination or expiration, the Sub-sublease shall be in full force
and effect, Empower Health shall not be made a party in any removal or eviction
action or proceeding, nor shall Empower -Health be evicted or removed of its
possession nor shall its right of possession be disturbed, or in any way
interfered with, and the Sub-sublease shall continue in full force and effect as
a direct lease from ASF to Empower Health.
3. Attornment to ASF. In consideration for the covenants made -by
ASF herein, Empower shall attorn to ASF that'in the case of default under the
Sublease by Software Atelier that it shall recognize ASFas its sublessor under
the Sublease.
4. Election to Continue.
(a) If the Sublease terminates during the term of the sublease
(i) because Software Atelier has exercised an option to terminate the'Sublease,
(ii) by operation of law, (iii) by mutual agreement between the parties to the
Sublease, or (iv) for any other reason except as provided in paragraph 2 above,
then Empower Health may elect to continue the Sub-sublease in full force and
effect notwithstanding such termination of the Sublease, as provided in this
paragraph 4(a)
(b) If the Sublease terminates pursuant to paragraph 4(a)
above, an such election by Empower Helath, the Sub-sublease shall continue as a
direct sublease between it and ASF without the necessity of executing a new
sublease,on the same. terms and conditions as are in effect under the Sub-
sublease immediately preceding the termination of the Sublease.
(c) if software Atelier has elected to' terminate the
Subsublease as a result of fire or other casualty or a condemnation in
accordance with the terms of the Sub-sublease, and Software Atelier has
concurrently exercised a right of termination under the Sublease for the same
reason, ASF shall so notify Empower Health, and Empower Health may, within
twenty (20) days after receipt of such notice from ASF, give ASF notice of the
exercise of Empower Health of any right or option granted to Empower Health
under the Sub-sublease in which event Software Atelier's notice of termination
of the Sub-sublease shall be void, and the provision `of subparagraph 4 (b)
above shall apply.
5. Acknowledgment of Sublease. Empower Health hereby acknowledges
and consents to the existence of the Sublease.
6. Waiver of Lien. ASF hereby waives and relinquishes any and all
rights of remedies against Empower Health, pursuant, to any lien, statutory or
otherwise, that it may have against the property, good or chattels of Empower
Health in or on the Empower Health Premises.
7. Notices. Any notices, consents, approval, submission demands or
other communications (hereinafter collectively referred to as "Notice") given
under this Attornment and Nondisturbance Agreement shall be in writing. Unless
otherwise required by law or governmental regulation, Notices shall be deemed
given if sent by registered or certified mail, return receipt requested, postage
prepaid or by a same day or overnight courier services providing for delivery
upon receipt to any or all parties, at the addresses herein set forth or such
other address as parties may designate by Notice to the other parties. All
Notices shall become effective only on the receipt or rejection of same by the
proper parties.
If to ASF, then to:
FACILITIES SERVICES, INC.
XX Xxx 000-000
Xxxxxxxxxx, Xxxxx 00000
Att: Xxxxxx Xxxxxx
APPLIED SCIENCE FICTION, INC.
0000 Xxxxxxxx Xxxx Xxxxx, #000
Xxxxxx X.Xxxxxxx, president
Xxxxxx, Xxxxx 00000
Att: Xxxx Xxxxx
If to EMPOWER HEALTH, then to:
Xxxxxx X. Xxxxxxx
Empower Health Corporation
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
9. No amendment or modification of this Agreement shall be valid or binding
unless in writing, signed by the party or parties to be bound thereby.
10. This Agreement may be executed in one or more counterparts, each of which
when exchanged shall be considered an original document.
11. This Agreement is intended to be recorded and to run with the land and any
portion thereof.
12. This Attornment and Nondisturbance Agreement shall be binding upon and
inure to the benefit of the subtenants, successors and/or assigns of the
parties hereto (including, without limitation, any person or entity
acquiring title to the Premises by foreclosure or otherwise). In this
Attornment and Nondisturbance Agreement the singular number includes the
plural, and any gender includes all other genders.
IN WITNESS WHEREOF, the parties hereto have each caused this Attornment
and Nondisturbance Agreement to be executed on the date and year first above
written pursuant to the proper authorities which have been duly delegated to
them.
APPLIED SCIENCE FICTION, INC.,
a Delaware corporation
By:
--------------------------------
Name:
-----------------------------
Its:
------------------------------
EMPOWER HEALTH CORPORATION,
a Texas corporation
By:
--------------------------------
Xxxxxx X. Xxxxxxx, President
STATE OF TEXAS (S)
(S)
COUNTY OF BEXAR (S)
This instrument was acknowledged before me the______ day of
________________ 1998 by ____________________________________, of Applied
Science Fiction, a Texas corporation, on behalf of said corporation.
--------------------------------------
Notary Public for the State of Texas
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was acknowledged before me on the _________ day of
____________, 1998 by Xxxxxx X. Xxxxxxx, President of Empower Health
Corporation, Texas corporation on `behalf of said corporation.
--------------------------------------
Notary Public for the State of Texas
The Software Atelier
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
May 6, 1998
Empower Health Corporation
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Gentlemen:
Oftice Sub-sublease Under Negotiation
Enclosed please find a check for $21,266.00. This money is prepayment
of the first monthis rent and security deposit that will be due under the sub-
sublease being negotiated between us at present for 5,800 square feet (including
a common area factor of 16%) on the first floor north side at 0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxx, Xxxxx (the "Premises").
If such sub-sublease negotiations do not result in a binding sub-
sublease agreement in relation to the Premises by May 20, 1998, this money shall
be refunded to Empower Health Corparation on the same day in the form of a
cashier's check.
Sincerely yours,
EMPOWER HEALTH CORPORATION
By: \s\ X. Xxxxxxx
------------------------------
Xxxxx Xxxxxxx, President
CERTIFICATE AND ACKNOWLEDGEM[EN OF RECEIPT
I, \s\ Xxx Xxxxxxx [name], Managing Partner - [title] of Software
Atelier L.L.C., a Texas limited liability company do hereby ageeto the terms of
this letter and hereby acknowledge receipt of Empower Health Corporation
(formerly Personal Medical Records, Inc.) check no 1066 in the amount of
$21,266.00.
(SIGNATURE PAGE FOLLOWS]
LETTER OF XXXXXX XXXXXXX, May 6, 1998
CERTMCATE AND ACKNOWLEDGENmNT OF RECEIPT
SIGNATURE PAGE
THE SOFTWARE ATELIER, L.L.C.
By: \s\ X.X. Xxxxxxx
----------------
Name: X.X. Xxxxxxx
----------------
Title: Managing Partner
----------------
Appendix 3
SOFTWARE ATELIER'S WORK LETTER
Capitalized terms in this Work Letter shall have the same definitions
as those given to them in the Agreement for Sublease.
1. Painting. The Software Atelier shall paint all walls internal to
the initial rental space.
2. Lighting. The Software Atelier shall provide a total of 24
fluorescent lighting fixtures, similar to the 9 already installed, in the
initial rental space.
3. Cabling. The Software Atelier shall provide electrical power
terminating in boxes in the ceiling and communications cabling of the Base Area
sufficient to serve up to fifty (50) workstation cubicles each with computers,
printers and telephones. The Software Atelier shall not be responsible for
connecting such cubicles to termination boxes.
Appendix 4
SUBLESSOR CONSENT TO SUB-SMEASE AND
ESTOPPEL CERTIFICATE
The undersigned, Applied Science Fiction, a Delaware corporation
("ASF"), hereby consents to the sub-sublease of a portion of the premises which
ASF has subleased to Software Atelier, L.L.C., a Texas limited liability
company's ("Software Atelier's") under the sub-sublease agreement described
below to Empower Health Corporation, a Texas corporation ("Empower Health") (the
"Agreement") and certifies to Empower Health and agrees as follows:
1. Sublessor and Sublessee entered into that certain sublease dated
April 20, 1998 (the "Sublease"), the demised premises of which are shown on
Exhibit B to Appendix 1 of the Sublease and located in the areas known as "First
Floor North" and "Second Floor North" at 0000 Xxxxxxxx Xxxx Xxxxx in the City of
Austin, County of Xxxxxx, State of Texas (the "Building") (the "Sublease
Premises").
2. Software Atelier, as sub-sublessor, and Empower Health, as sub-
sublessee, shall enter into the Agreement for portions of that part of the
Sublease Premises known as "Second Floor North"on the second floor north side of
the Building (the "Empower Health Premises").
3. The term of the Agreement shall commence on the date of the
Agreement. Rent under the Agreement shall commence on the same date.
4. Empower Health shall enter into occupancy of the Empower Health
Premises on or about May 20, 1998.
5. The term of the Agreement shall expire on October 31, 2000. The
Agreement provides for no renewal option(s).
6. The amount of fixed monthly base rent under the Agreement shall
be as follows:
May 12,.1998 - Sep. 30,1998 $10,633/mo (5,800 rentable sf $22.00)
Oct. 1, 1998 - Dec. 31, 1998 $14,887/mo (8,120 rentable sf $22.00)
Jan. 1, 1999 - Jul. 31, 1999 $20,203/mo (11,020 rentable st $22.00)
Aug. 1, 1999 - Oct. 31, 2000 $20,663/mo (11,020 rentable sf $22.00)
7. The amount of the. security deposit (if my) deposited by Empower
Health with Software Atelier is $10,633. No other security or other deposits
shall be made.
8. ASF hereby certifies that there are no actions, whether voluntary
or otherwise pending against ASF pursuant to the bankruptcy or insolvency Laws
of the United States or any state thereof.
9. ASF represents and warrants that it has not used, generated,
released, dischargd, stored or disposed of any Hazardous Substances (as such
term is defined in the Agreement) on, under, in or about the Premises (as
defined in paragraph 13 of this Consent and Estoppel Certificate), or
transported any Hazardous Substances to or from the Premises, other than
Hazardous Substances used in the ordinary and commercially reasonable course of
ASF's business in compliance with all applicable laws.
10. ASF`s address for notices under the terms of the Sublease is:
Applied Science Fiction, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Facilities Services, Inc.
P.O. Box $30849
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
11. ASF hereby agrees to recognize Empower Health as the sub-
sublessee under the Agreement.
12. ASF acknowledges and agrees that information furnished to Empower
Health is being relied upon by Empower Health in connection with its acquisition
of its interest under the Agreement and that Empower Health, its successors and
assigns may rely on the statements and representations made herein.
13. ASF hereby consents to the demise of Empower Health's interest
under the Agreement to Empower Health in every respect, and hereby acknowledge
the such demise does not cause a default or otherwise violate any of the terms
and conditions of that certain lease with RGK Renttals, Ltd. dated March 20,
1998 for the entire Building, together with the related padding, driveways and
landscaped areas described more particularly in such lease (the "Premise"), or
the Sublease.
DATED this 29 day of May, 1998.
Applied Science Fiction, Inc.
By: \s\ Xxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxx
---------------
Title:
----------------
Waiver of Condition 20.2 of Agreement for Sub-sublease
(Empower Health Corporation)
WITNESSETH
WHEREAS, the'Empower Health Corporation, a Texas corporation,
("Empower Health") entered into that certain Agreement for Sub-sublease on May
22, 1998 (the "Agreement") together with The Software Atelier L.L.C., a Texas
limited liability company ("Software Atelier") for sections of the "Second Floor
North" of the building at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxx (the
"Building") as more particularly described in the Agreement; and
WHEREAS, paragraph 20.3 of the Agreement makes the execution by RGK
Rentals Ltd. ("RGK"), as lessor on the Main Lease for the Building, of the
Lessor's Covenant to Notify Sublessee of a Default on the Lease attached as
Appendix 5 to the Agreement a condition for the effectiveness of the Agreement
("Condition 20.3"); and
WHEREAS Applied Science Fiction, a Delaware corporation, is the
sublessor on the Main Sublease and lessee on Main Lease for the Building and has
executed Sublessor's Covenant to Notify Sublessee and Sub-sublessee of a Default
on the Lease and Provide Monthly Copy of Rental Payment, appended to this Waiver
as the Appendix to Waiver (the "Sublessor's Covenant"); and
WHEREAS, given the existence of the Sublessor's Covenant, the Company
is desirous of waiving Condition 20.3;
NOW, THEREFORE, the Company waives Condition 20.3.
Except as expressly waived hereby, the conditions for effectiveness of
the Agreement are confirmed in every respect and shall remain conditions for
effectiveness of the Agreement
This Waiver shall be construed and enforced in accordance with the
laws of the State of Texas.
The Agreement shall be incorporated in this Waiver by reference.
Capitalized terms in this Waiver shall have the same meanings as those terms in
the Agreement, unless otherwise defined herein.
Executed effective May 29, 1998.
EMPOWER HEALTH CORPORATION
Name: \s\ X. Xxxxxxx
--------------
SUBLESSOR'S COVENANT TO NOTIFY SUBLESSEIECAND SUB-SUBLESSEE OF A
DEFAULT ON THE LEASE AND PROVIDE MONTHLY COPY OF RENTAL PAYMENT
It is hereby understood that Applied Science Fiction, Inc. will
provide to both The Software Atelier and Empower Health a copy of each monthly
rental check paid to RGK Rentals, Ltd, Lessor of 0000 Xxxxxxxx Xxxx Xxxxx.
To restate items within the Main Lease, Lessee Applied Science Fiction
incurs a 5% of gross rent late charge if the monthly rent is not paid within the
first ten days of the month. Thus, a copy of such payment will be hand-delivered
each month no later than the 10th day to the Sublesse and Sub-Sublessee. Thus,
Sublessee and Sub-Sublessee would know no later than the 11th day of any month
as to whether the Lessee was in danger of defaulting on the Main Lease.
Further, Lessee has ten business days to cure after written notice from Lessor,
a copy of such notice Lessee is bound by Agreement to provide Sublessee, and via
this letter, Empower Health. In addition, ASF has a $300,000 security deposit
at stake through the term of TSA and Empower Health's sublease and sub-sublease.
Also, in the Sublease Agreement with The Software Atelier, ASF is
committed via the following language, "Sublessor shall immediately forward to
Sublessee copies of all notices it receives from Lessor regarding the Leased
Premises." Via this letter, this directive shall, be expanded to forward all
such notices to Empower Health also.
AGREED TO: AGREED TO:
------------------------------ ------------------------------
Applied Science Fiction Software Atelier
Date: May 29, 1998 Date: May 28, 1998
------------------------ ------------------------
AGREED TO:
\s\ X. Xxxxxxx
------------------------------
Empower Health
Date: May 28, 1998
