EXHIBIT 10.3
SUBLEASE AGREEMENT
This Sublease is made this _______ day of _______________, 1999 at
Xxxxxx County, Texas by and between POWERSHIFT VENTURES, LLC, (herein,
"SUBLESSOR"), and SHBANG! INC., (herein, "SUBLESSEE").
RECITALS:
A. Pursuant to the Office Building Lease Agreement dated December 26,
1995, between Motorola, Inc. ("MOTOROLA"), as tenant, and AAW Lakewood, Ltd., as
landlord (as amended by the First Amendment to Lease Agreement dated April 8,
1996, the Second Amendment to Lease Agreement dated September 10, 1996, the
Third Amendment to Office Building Lease Agreement dated January 23, 1998, all
of which are attached hereto as Exhibit "A" and are collectively referred to as
the ("MAIN LEASE"), and the Assignment and Assumption of Lease dated
_______________, 1999, the ("ASSIGNMENT") by and between Motorola and Sublessor,
Sublessor has become the Tenant under the Lease for certain premises described
therein consisting of 30,000 square feet of space (the "PREMISES") in the office
building known as Building A of Lakewood on the Park in Austin, Texas (the
"BUILDING");
B. Hub Properties Trust ("LANDLORD") is the successor in interest to
Austin Lakewood on the Park, Ltd. and is the current owner of the Building and
the rights and interests of the landlord under the Lease; and
C. Sublessor desires to sublease the Premises to Sublessee and
Sublessee is willing to assume the obligations imposed upon Sublessor accruing
from and after the commencement date of the term of this Sublease under the
Lease, subject to and conditioned upon agreements hereinafter set forth.
In consideration of the mutual promises contained herein, Sublessor
hereby subleases the Premises to Sublessee, subject to the terms of the Main
Lease, and subject further to the provisions of this Sublease, as follows:
1. Main Lease. From and after the commencement date of the term of this
Sublease, Sublessee agrees to abide by and observe all the terms, covenants
and conditions of the Main Lease.
2. Term and Termination. The term of this Sublease shall commence as of the
effective date of the Assignment ("EFFECTIVE DATE") and shall terminate
February 28, 2001, unless earlier terminated pursuant to the Main Lease.
3. Incorporation of Main Lease. Insofar as the provisions of the Main Lease
do not conflict with the specific provisions of this Sublease, 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 accruing from and after the
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commencement date of the term of this Sublease that Sublessor, by the Main
Lease, assumes towards the Landlord, except for the payment of rent by
Sublessee to Sublessor, which is governed by Paragraph 4 herein. Terms not
defined in this Sublease shall have the meanings given such terms in the
Main Lease. Sublessee agrees to look solely to Landlord for any and all
remedies it may seek for any damages of any kind related to the Main Lease,
except as expressly provided in this Sublease; provided, however, the
foregoing shall not impair Sublessee's right to seek any remedies it may
have against Sublessor due to Sublessor's breach of this Sublease.
Sublessor shall have no liability to Sublessee for any wrongful action or
default on the part of Landlord pursuant to the terms of the Main Lease,
and Sublessee hereby agrees to look solely to Landlord in event of any such
wrongful action or default; provided, however, that Sublessor shall not do
anything nor permit anything to be done that would cause the Main Lease to
be terminated or forfeited because of any right of termination or
forfeiture reserved or vested in Landlord, Sublessor, or any other party
under the Main Lease. Sublessor will indemnify and hold Sublessee harmless
from and against all liabilities and claims of any kind (i) arising out of
or relating to the Tenant's obligations under the Main Lease accruing on or
prior to the commencement date of the term of this Sublease, or (ii) by
reason of any breach or default under the Main Lease that is caused by any
act or omission on the part of Sublessor, its employees, agents or
contractors by reason of which the Main Lease may be terminated or
forfeited. All of the parties hereto agree that, notwithstanding any
default under the Main Lease by Landlord, Sublessor, or any other parties
under the Main Lease, Sublessor will not disturb Sublessee's quiet
possession of the Premises throughout the term of this Sublease so long as
Sublessee is not in default of its rental payments to Landlord pursuant to
this Sublease. Specifically, and without limiting the generality of the
foregoing, Sublessor shall not exercise its right to terminate the Main
Lease pursuant to Section I.B. of the Main Lease. Sublessor's indemnity
and other obligations pursuant to this section shall survive the expiration
or termination of the Main Lease and this Sublease.
4. Rent. Sublessee agrees to pay directly to Landlord, as and when due, all
amounts accruing from and after the commencement date of the term of this
Sublease as base rent, Tenant Costs, and any and all other costs that
Sublessor would be obligated to pay as Tenant under the Main Lease,
provided that, with respect to Tenant Costs that are billed by Landlord to
Sublessor from time to time that require payment by Sublessor to Landlord
under the terms of the Main Lease (e.g., estimates of variable Tenant Costs
that change from month to month or annually), Sublessor shall, immediately
upon receipt of such xxxx or notice, forward such xxxx or notice to
Sublessee.
5. Alterations and Improvements; Sublease. Sublessee shall make no
alterations or improvements to the Premises without Sublessor's and
Landlord's prior written consent pursuant to the terms and provisions of
the Main Lease (which consent by Sublessor shall not be unreasonably
withheld or delayed); any permitted alterations or improvements shall be at
Sublessee's sole cost and expense. Sublessee may, without Landlord's
consent, erect such shelves, bins, office equipment and trade fixtures as
it desires, as may be permitted under the Main Lease. Sublessee shall have
no right to assign or sublet any interest in this Sublease without first
obtaining the written consent of the Landlord and
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Sublessor, which consent may or may not be granted by the Landlord or
Sublessor in their sole opinion, judgment or discretion.
6. Insurance. Sublessee agrees that under all applicable insurance provisions
of the Main Lease, whenever Landlord is named as an additional insured and
provided with proof of such insurance, Sublessor will also be named as an
additional insured and provided with proof of insurance, pursuant to the
terms of such insurance provisions.
7. Indemnification. Sublessee agrees to indemnify and hold harmless Sublessor
from and against any and all claims, liabilities, losses, damages, costs,
expenses (including attorneys' fees and costs) or demands of any kind
whatsoever and however arising, resulting from this Sublease or the tenancy
created hereby, including but not limited to mechanics liens caused
directly or indirectly due to Sublessee's actions or failure to act, any
acts by Sublessee which result in breach of the Main Lease, any other
damage caused by Sublessee, or any loss, damage or costs incurred in
connection with the Premises as a result of alterations or improvements to
the Premises performed by Sublessee or Sublessee's agents or independent
contractors after the commencement of the term of this Sublease
(collectively, "LOSSES"), unless such Losses result from the negligence of
Sublessor.
8. Default. The following events shall be deemed to be events of default by
Sublessee under this Sublease: any events of default by Sublessee, listed
as events of default by Tenant set forth in the Main Lease, or any default
in the provisions of this Sublease. 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 Landlord in the
Main Lease.
9. Consent of Landlord. This Sublease is subject to and conditioned upon the
approval and consent of the Landlord. Sublessee and Sublessor have
executed this Sublease upon the understanding that this Sublease shall not
in any way bind Sublessor or Sublessee until receipt by Sublessor and
Sublessee of the written consent of Landlord. In the event Sublessee and
Sublessor do not receive written consent of Landlord for this Sublease on
or before April 1, 1999, this Sublease shall automatically terminate and
Sublessee and Sublessor shall have no further rights or obligations under
this Sublease except as expressly set forth herein.
10. Brokers. Sublessor and Sublessee warrant and represent to each other that
no brokers are entitled to receive a commission in connection with this
Sublease except in accordance with separate written commission agreements,
if any. Each party hereto ("FIRST PARTY") hereby indemnifies and holds the
other party hereto harmless from and against any and all claims for
realtors' or brokers' commissions in connection with this Sublease made by
parties claiming by, through or under the First Party.
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11. Miscellaneous.
11.1 Notices. Any notice or other communication required or
permitted to be given under this Sublease 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:
If to Sublessor: If to Sublessee:
POWERSHIFT VENTURES LLC SHBANG! INC.
Xxxxx 000 Xxxxx 000
7600 B N. Capital of Texas Highway 0000 X X. Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
11.2 Severability. In the event any one or more of the provisions
contained in this Sublease 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 if such invalid, illegal or unenforceable provisions had never been
contained herein.
11.3 Waiver of Breach. The waiver by Sublessor of any breach or
violation of any provision of this Sublease shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same or any other
provision hereof.
11.4 Entire Agreement. 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.
11.5 Further Assurances, Nondisturbance. Each party agrees to
execute and deliver such additional .documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions, and conditions of this Sublease and
the transactions contemplated hereby. To the extent Sublessor is party to a
non-disturbance agreement with any mortgagee of the Building, Sublessee shall be
entitled to the benefit thereof.
11.6 Representations and Covenants of Sublessor. Sublessor, for
itself and its legal representatives, successors and assigns, covenants and
represents to Sublessee and agrees as follows:
(a) Sublessor, as of the Effective Date, has full right, authority and
power to sublease the Premises, subject to Landlord's consent;
(b) No other assignment or sublease of the Main Lease has been made by
Sublessor, and the rights and interests of Sublessor in and under the Main Lease
are as of the Effective Date free and clear of any liens and encumbrances made
by Sublessor;
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(c) As of the Effective Date, Sublessor is not in default under any of
the terms of the Main Lease.
(d) Sublessor has no knowledge of any default in the performance and
observance of obligations contained in the Main Lease to be kept, observed and
performed by Landlord, or of any condition which with the giving of notice or
passage of time, or both, would constitute a default under the Main Lease;
(e) If Sublessee requests Sublessor to do so, Sublessor shall at
Sublessee's expense use commercially reasonable efforts to enforce the
obligations of Landlord under the Main Lease and to maintain the Main Lease in
full force and effect throughout the term of this Sublease; and
(f) Sublessor has not exercised prior to the date hereof, and will not
exercise from and after the date hereof, the early termination right of the
Tenant in section I.B. of the Main Lease.
11.7 Headings. All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Sublease.
11.8 Multiple Counterparts. This Sublease may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same agreement. A facsimile signature may be used
for any purpose in lieu of an original signature.
11.9 Attorney Fees. In the event either party hereto commences an
action or proceeding against the other with respect to this Sublease, the
prevailing party in such dispute shall be entitled to recover from the other
party all reasonable fees, costs and expenses of enforcing any right of the
prevailing party, including without limitation, reasonable attorneys' fees and
costs.
EXECUTED as of the day and year first above written.
Sublessor: Sublessee:
POWERSHIFT VENTURES, LLC SHBANG! INC.
By:__________________________ By:__________________________
Title:_______________________ Title:_______________________
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CONSENT BY LANDLORD
HUB PROPERTIES TRUST, Landlord under the Main Lease referred to in
this Sublease, hereby consents to the foregoing Sublease, and, notwithstanding
section 12 of the Main Lease or any other provision of the Main Lease, Landlord
consents to the continued use of the computer labs within the Premises by
Sublessee, and such use is not a violation of or an Event of Default under the
Main Lease or this Sublease.
LANDLORD:
HUB PROPERTIES TRUST
By:___________________________
Printed Name:_________________
Title:________________________
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