Exhibit 10.1
SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT ("Sublease") is made and entered into to be
effective the 8th day of October, 2004 by and between New Century Equity
Holdings Corp., a Delaware Corporation ("Sublandlord"), and The Law Offices of
Alfred G. Holcomb P.C. ("Subtenant").
WHEREAS, SAOP Union Square, L.P., a Texas limited partnership, as landlord
("Landlord"), and New Century Equity Holdings Corp., a Delaware Corporation, as
tenant ("Tenant"), are parties to a lease dated February 11, 2004 (referred to
herein as the "Master Lease") whereby Landlord leased to Tenant Suite 970
("Master Premises") of the "Building" located at 10101 Reunion Place, San
Antonio, Texas (the "Building"), as more particularly described in the Master
Lease, upon the terms and conditions contained therein. All capitalized terms
used herein shall have the same meaning ascribed to them in the Master Lease
unless otherwise defined herein. A copy of the Master Lease is attached hereto
as Exhibit A and made a part hereof.
WHEREAS, Sublandlord and Subtenant wish to enter into a sublease of the
Master Premises shown on the demising plan annexed hereto as Exhibit A of the
Master Lease and made a part hereof ("Sublease Premises") on the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto mutually covenant and agree as
follows:
1. PREMISES. Sublandlord hereby subleases to Subtenant, and Subtenant
hereby hires and subleases from Sublandlord the Master Premises (which the
parties stipulate contain 1730 rentable square feet), upon and subject to the
terms, covenants and conditions hereinafter set forth.
2. SUBLEASE TERM. The term of this Sublease ("Term") shall be for
twenty-eight (28) months, commencing on October 8, 2004 ("Sublease Commencement
Date"), and ending, unless sooner terminated as provided herein, on January 31,
2007. ("Sublease Expiration Date").
3. USE. The Sublease Premises shall be used and occupied by Subtenant for
the uses permitted under and in compliance with Paragraph 5 of the Master Lease
and for no other purpose.
4. SUBRENTAL.
(a) BASE RENTAL. Beginning with the Sublease Commencement Date and
thereafter during the Term of this Sublease and ending on the Sublease
Expiration Date, Subtenant shall pay to Sublandlord the following monthly
installments of base rent ("Base Rental") which are based on $17.00 per rentable
square foot per year:
Month 1 $0.00 / month
Months 2-28 $2,450.83 / month
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The first monthly installment of Base Rental shall be paid by Subtenant
upon the execution of this Sublease. Base Rental and additional rent (including
without limitation, late fees) shall hereinafter be collectively referred to as
"Rent."
(b) PRORATIONS. If the Sublease Commencement Date is not the first (1st)
day of a month, or if the Sublease Expiration Date is not the last day of a
month, a prorated installment of monthly Base Rental based on a thirty (30) day
month shall be paid for the fractional month during which the Term commenced or
terminated.
(c) OPERATING EXPENSES. Beginning on the Sublease Commencement Date and
thereafter during the Term of this Sublease, Subtenant shall pay to Sublandlord
as additional rent for this subletting an amount equal to (.889%) ("Subtenant's
Share") of the excess of operating expenses (as set forth in Exhibit B of the
Master Lease) for the Master Premises over the total amount of operating
expenses for the Master Premises incurred by Sublandlord during the Base Year
pursuant to the terms and conditions of the Master Lease. Subtenant's Share is a
percentage that reflects the ratio of the rentable square feet of the Sublease
Premises to the rentable square feet of the Master Premises. The rentable square
feet of the Master Premises is 1,730.
(d) PAYMENT OF RENT. Except as otherwise specifically provided in this
Sublease, Rent shall be payable in lawful money without demand, and without
offset, counterclaim, or setoff in monthly installments, in advance, on the
first day of each and every month during the Term of this Sublease. All of said
Rent is to be paid by check made payable to: New Century Equity Holdings,
Newcastle Partners, L.P., 300 Crescent Court, Suite 1110, Dallas, TX 75201,
Attn: Steve Pully or at such other place or to such agent and at such place as
Sublandlord may designate by notice to Subtenant. Any additional rent or other
amounts payable by Sublandlord to Landlord under the Master Lease is to be paid
to Sublandlord as and when such items are payable by Sublandlord to Landlord
under the Master Lease, unless a different time for payment is elsewhere stated
herein. Upon written request therefor, Sublandlord agrees to provide Subtenant
with copies of any statements or invoices received by Sublandlord from Landlord
pursuant to the terms of the Master Lease.
(e) LATE CHARGE. Subtenant shall pay to Sublandlord an administrative
charge of One and One Half Percent (1.5%) per month or the highest rate allowed
by applicable law ("Interest Rate") on all past-due amounts of Rent payable
hereunder, such charge to accrue from the date upon which such amount was due
until paid.
5. SECURITY DEPOSIT. Concurrently with the execution of this Sublease,
Subtenant shall deposit with Sublandlord the sum of Two Thousand Four Hundred
Fifty and 83/100 Dollars ($2,450.83) (the "Deposit"), which shall be held by
Sublandlord as security for the full and faithful performance by Subtenant of
its covenants and obligations under this Sublease. The Deposit is not an advance
Rent deposit, an advance payment of any other kind or a measure of Sublandlord's
damage in case of Subtenant's default. If Subtenant defaults in the full and
timely performance of any or all of Subtenant's covenants and obligations set
forth in this Sublease, then Sublandlord may, from time to time, without waiving
any other remedy available to Sublandlord, use the Deposit, or any portion of
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it, to the extent necessary to cure or remedy the default or to compensate
Sublandlord for all or a part of the damages sustained by Sublandlord resulting
from Subtenant's default. Subtenant shall immediately pay to Sublandlord within
five (5) days following demand, the amount so applied in order to restore the
Deposit to its original amount, and Subtenant's failure to immediately do so
shall constitute a default under this Sublease. If Subtenant is not in default
with respect to the covenants and obligations set forth in this Sublease at the
expiration or earlier termination of the Sublease, Sublandlord shall return the
Deposit to Subtenant after the expiration or earlier termination of this
Sublease. Sublandlord's obligations with respect to the Deposit are those of a
debtor and not a trustee. Sublandlord shall not be required to maintain the
Deposit separate and apart from Sublandlord's general or other funds, and
Sublandlord may commingle the Deposit with any of Sublandlord's general or other
funds. Subtenant shall not at any time be entitled to interest on the Deposit.
6. SIGNAGE. Subtenant is granted the right, at or about the inception of
the Term of this Sublease, to have the Landlord, at Subtenant's expense, install
a Building standard name plate sign identifying Subtenant on the entry door to
the Sublease Premises and on any building directories, subject to Landlord's and
Sublandlord's prior written approval. Except for the foregoing, Subtenant shall
have no right to maintain Subtenant identification signs in any other common
area location in, on, or about the Building. The size, design, color and other
physical aspects of all such permitted signs shall also be subject to Landlord's
and Sublandlord's prior reasonable written approval and also shall be subject to
any covenants, conditions or restrictions encumbering the Sublease Premises and
any applicable municipal or other governmental permits and approvals. The cost
of any changes to such signs after the initial installation, maintenance and
removal thereof, shall be at Subtenant's sole cost and expense. If Subtenant
fails to maintain its signs, or if Subtenant fails to remove same upon the
expiration or earlier termination of this Sublease and repair any damage caused
by such removal, then Sublandlord may do so at Subtenant's expense and Subtenant
shall reimburse Sublandlord for all actual costs incurred by Sublandlord to
effect such removal.
7. PARKING. Subtenant shall have the right, during the Term of this
Sublease, to use all of the parking spaces allocated to Sublandlord in the
parking garage adjacent to the Building("Garage") at no charge to Subtenant as
set forth in Exhibit "F" of the Master Lease. Sublandlord understands, but makes
no representation or warranty of Subtenant's rights to such, that there are
additional parking spaces available in the Garage which Subtenant should be able
to obtain the right to use. Subtenant shall have the right to negotiate with
Landlord for the right to use additional parking spaces during the Term of this
Sublease at Subtenant's sole expense.
8. INCORPORATION OF MASTER LEASE.
(a) This Sublease is subject and subordinate to the Master Lease. Subject
to the modifications set forth in this Sublease, the terms of the Master Lease
are incorporated herein by reference, and shall, as between Sublandlord and
Subtenant (as if they were Landlord and Tenant, respectively, under the Master
Lease) constitute the terms of this Sublease except to the extent that they are
inapplicable to, inconsistent with, or modified by, the terms of this Sublease.
In the event of any inconsistencies between the terms and provisions of the
Master Lease and the terms and provisions of this Sublease, the terms and
provisions of this Sublease shall govern. Subtenant acknowledges that it has
reviewed the Master Lease and is familiar with the terms and conditions thereof.
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(b) For the purposes of incorporation herein, the terms of the Master Lease
are subject to the following additional modifications:
(i) In all provisions of the Master Lease
(under the terms thereof and without regard to modifications thereof for
purposes of incorporation into this Sublease) requiring the approval or consent
of Landlord, Subtenant shall be required to obtain the approval or consent of
both Sublandlord and Landlord, which consents (except for consents under the
Master Lease which are in Landlord's sole discretion) shall not be unreasonably
withheld or delayed.
(ii) In all provisions of the Master Lease
requiring Tenant to submit, exhibit to, supply or provide Landlord
with evidence, certificates, or any other matter or thing, Subtenant shall be
required to submit, exhibit to, supply or provide, as the case may be, the same
to both Landlord and Sublandlord. In any such instance, Sublandlord shall
determine if such evidence, certificate or other matter or thing shall be
satisfactory.
(iii) Sublandlord shall have no obligation
to restore or rebuild any portion of the Sublease Premises after any destruction
or taking by eminent domain, unless Sublandlord is obligated to restore or
rebuild pursuant to provisions of the Master Lease.
(c) The following provisions of the Master Lease are specifically excluded:
Section entitled "Expansion and Right of First Refusal", "Temporary Space",
Renewal Option".
9. SUBTENANT'S OBLIGATIONS. Subtenant covenants and agrees that all
obligations of Sublandlord under the Master Lease shall be done or performed by
Subtenant with respect to the Sublease Premises, except as otherwise provided by
this Sublease, and Subtenant's obligations shall run to Sublandlord and Landlord
as Sublandlord may determine to be appropriate or be required by the respective
interests of Sublandlord and Landlord. Subtenant agrees to indemnify
Sublandlord, and hold it harmless, from and against any and all claims, damages,
losses, expenses and liabilities (including reasonable attorneys' fees) incurred
as a result of the non-performance, non-observance or non-payment of any of
Sublandlord's obligations under the Master Lease that, as a result of this
Sublease, became an obligation of Subtenant. If Subtenant makes any payment to
Sublandlord pursuant to this indemnity, Subtenant shall be subrogated to the
rights of Sublandlord concerning said payment. Subtenant shall not do, nor
permit to be done, any act or thing that is, or with notice or the passage of
time would be, a default under this Sublease or the Master Lease. Sublandlord
agrees to indemnify Subtenant, and hold it harmless, from and against any and
all claims, damages, losses, expenses and liabilities (including reasonable
attorneys' fees) incurred as a result of the non-performance, non-observance or
non-payment of any of Sublandlord's obligations under the Master Lease that, as
a result of this Sublease, expressly do not become an obligation of Subtenant
such as the obligation to pay operating expenses.
10. SUBLANDLORD'S OBLIGATIONS. Sublandlord agrees that Subtenant shall be
entitled to receive all services and repairs to be provided by Landlord to
Sublandlord under the Master Lease. Subtenant shall look solely to Landlord for
all such services and shall not, under any circumstances, seek nor require
Sublandlord to perform any of such services, nor shall Subtenant make any claim
upon Sublandlord for any damages that may arise by reason of Landlord's default
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under the Master Lease. Any condition resulting from a default by Landlord shall
not constitute as between Sublandlord and Subtenant an eviction, actual or
constructive, of Subtenant, and no such default shall excuse Subtenant from the
performance or observance of any of its obligations to be performed or observed
under this Sublease, or entitle Subtenant to receive any reduction in or
abatement of the Rent provided for in this Sublease. In furtherance of the
foregoing and provided Sublandlord reasonably pursues its remedies under the
Master Lease for Landlord's default of its obligations, Subtenant does hereby
waive any cause of action and any right to bring any action against Sublandlord
by reason of any act or omission of Landlord under the Master Lease. Sublandlord
covenants and agrees with Subtenant that Sublandlord will pay all Base Rental
and additional rent payable by Sublandlord pursuant to the Master Lease to the
extent that failure to perform the same would adversely affect Subtenant's use
or occupancy of the Sublease Premises.
11. DEFAULT BY SUBTENANT. In the event Subtenant shall be in default of any
covenant of, or shall fail to honor any obligation under this Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (a) to Landlord under the Master Lease in the event of a similar
default on the part of Sublandlord thereunder or (b) at law or in equity.
12. QUIET ENJOYMENT. So long as Subtenant pays all of the Rent due
hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Sublease Premises.
13. NOTICES. Anything contained in any provision of this Sublease to the
contrary notwithstanding, Subtenant agrees, with respect to the Sublease
Premises, to comply with and remedy any default in this Sublease or the Master
Lease which is Subtenant's obligation to cure, within the period allowed to
Sublandlord under the Master Lease, even if such time period is shorter than the
period otherwise allowed therein due to the fact that notice of default from
Sublandlord to Subtenant is given after the corresponding notice of default from
Landlord to Sublandlord. Sublandlord agrees to forward to Subtenant, promptly
upon receipt thereof by Sublandlord, a copy of each notice of default received
by Sublandlord in its capacity as Tenant under the Master Lease. Subtenant
agrees to forward to Sublandlord, promptly upon receipt thereof, copies of any
notices received by Subtenant from Landlord or from any governmental
authorities. All notices, demands and requests shall be in writing and shall be
sent either by hand delivery or by a nationally recognized overnight courier
service (e.g., Federal Express), in either case return receipt requested, to the
address of the appropriate party. Notices, demands and requests so sent shall be
deemed given when the same are received or upon refusal to accept delivery.
Notices to Sublandlord shall be sent to the attention of:
New Century Equity Holdings Corp.
300 Crescent Court, Suite 1110
Dallas, TX 75201
Attn: Steve Pully
Notices to Subtenant shall be sent to the attention of:
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Alfred G. Holcomb, P.C.
10101 Reunion Place, Suite 970
San Antonio, TX 78216
Attn: Alfred G. Holcomb
14. BROKER. Sublandlord and Subtenant represent and warrant to each other
that, with the exception of Kyle Gunter of Primera Partners ("Subtenant's
Broker") and Norman Binsted of CB Richard Ellis ("Sublandlord's Broker"), no
brokers were involved in connection with the negotiation or consummation of this
Sublease. Sublandlord agrees to pay a commission to Sublandlord's Broker
pursuant to a separate agreement. Sublandlord's Broker will pay a portion of
such agreed commission received to Subtenant's Broker. Each party agrees to
indemnify the other, and hold it harmless, from and against any and all claims,
damages, losses, expenses and liabilities (including reasonable attorneys' fees)
incurred by said party as a result of a breach of this representation and
warranty by the other party.
15. CONDITION OF PREMISES. Subtenant acknowledges that it is subleasing the
Sublease Premises "as-is" and that Sublandlord is not making any representation
or warranty concerning the condition of the Sublease Premises and that
Sublandlord is not obligated to perform any work to prepare the Sublease
Premises for Subtenant's occupancy. Subtenant acknowledges that it is not
authorized to make or do any alterations or improvements in or to the Sublease
Premises, except as permitted by the provisions of this Sublease and the Master
Lease, and that it must deliver the Sublease Premises to Sublandlord on the
Sublease Expiration Date in the condition required by the Master Lease.
16. CONSENT OF LANDLORD. Paragraph 11 of the Master Lease requires
Sublandlord to obtain the written consent of Landlord to this Sublease.
Sublandlord shall solicit Landlord's consent to this Sublease promptly following
the execution and delivery of this Sublease by Sublandlord and Subtenant. This
Sublease is subject to and shall only become effective upon the written consent
of Landlord to this Sublease. In the event Landlord's written consent to this
Sublease has not been obtained within thirty (30) days after the execution
hereof, then this Sublease may be terminated by either party hereto upon notice
to the other, and upon such termination neither party hereto shall have any
further rights against or obligations to the other party hereto. 17. TERMINATION
OF THE SUBLEASE. If for any reason the term of the Master Lease shall terminate
prior to the Sublease Expiration Date, this Sublease shall automatically be
terminated, and Sublandlord shall not be liable to Subtenant by reason thereof,
unless said termination shall have been caused by the default of Sublandlord
under the Master Lease and said Sublandlord's default was not as a result of a
Subtenant's default hereunder.
18. ASSIGNMENT AND SUBLETTING.
(a) Independent of and in addition to any provisions of the Master Lease,
including without limitation the obligation to obtain Landlord's consent to any
assignment, it is understood and agreed that Subtenant shall have no right to
sublet the Sublease Premises or any portion thereof or any right or privilege
appurtenant thereto. Any assignment by Subtenant without Sublandlord's prior
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written consent shall be void and shall, at the option of Sublandlord, terminate
this Sublease.
(b) Subtenant shall advise Sublandlord by notice of (i) Subtenant's intent
to assign this Sublease, (ii) the name of the proposed assignee and evidence
reasonably satisfactory to Sublandlord that such proposed assignee is comparable
in reputation, stature and financial condition to tenants then leasing
comparable space in comparable buildings, and (iii) the terms of the proposed
assignment. Sublandlord shall, within thirty (30) days of receipt of such
notice, and any additional information requested by Landlord concerning the
proposed assignee's financial responsibility, elect one of the following:
(i) Consent to such proposed
assignment;
(ii) Refuse such consent, which
refusal shall be on reasonable grounds; or
(iii) Elect to terminate the
Sublease, effective thirty (30) days after Sublandlord delivers notice
of its election to Subtenant.
(c) In the event that Sublandlord shall consent to an assignment under the
provisions of this Section 18, Subtenant shall pay Sublandlord's reasonable
processing costs and reasonable attorneys' fees incurred in giving such consent.
Notwithstanding any permitted assignment, Subtenant shall at all times remain
directly, primarily and fully responsible and liable for all payments owed by
Subtenant under the Sublease and for compliance with all obligations under the
terms, provisions and covenants of the Sublease. If, for any proposed
assignment, Subtenant receives Rent or other consideration, either initially or
over the term of the assignment, in excess of the Rent required by this
Sublease, after a deduction for the following: (a) any brokerage commission paid
by Subtenant in connection therewith and (b) any reasonable attorneys' fees in
connection with preparing and negotiating an assignment document ("Profit"),
then Subtenant shall pay to Sublandlord as additional Rent, Fifty percent (50%)
of such Profit or other consideration received by Subtenant within five (5) days
of its receipt by Subtenant or, in the event the assignee makes payment directly
to Sublandlord, Sublandlord shall refund Fifty percent (50%) of the Profit to
Subtenant after deducting (a) and (b) above.
(d) Occupancy of all or part of the Sublease Premises by parent,
subsidiary, or affiliated companies or a joint venture partnership of Subtenant
shall not be deemed an assignment or subletting provided that such parent,
subsidiary or affiliated companies or a joint venture partnership were not
formed as a subterfuge to avoid the obligation of this Section 18. If Subtenant
is a corporation, unincorporated association, trust or general or limited
partnership, then the sale, assignment, transfer or hypothecation of any shares,
partnership interest, or other ownership interest of such entity, the
dissolution, merger, consolidation, or other reorganization of such entity or
the sale, assignment, transfer or hypothecation of the assets of such entity,
shall not be deemed an assignment or sublease subject to the provisions of this
Section 18.
19. LIMITATION OF ESTATE. Subtenant's estate shall in all respects be
limited to, and be construed in a fashion consistent with, the estate granted to
Sublandlord by Landlord. Subtenant shall stand in the place of Sublandlord and
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shall defend, indemnify and hold Sublandlord harmless with respect to all
covenants, warranties, obligations, and payments made by Sublandlord under or
required of Sublandlord by the Master Lease with respect to the Subleased
Premises. In the event Sublandlord is prevented from performing any of its
obligations under this Sublease by a breach by Landlord of a term of the Master
Lease, then Sublandlord's sole obligation in regard to its obligation under this
Sublease shall be to use reasonable efforts in diligently pursuing the
correction or cure by Landlord of Landlord's breach and to reasonably pursue its
remedies under the Master Lease for such breach.
20. ENTIRE AGREEMENT. It is understood and acknowledged that there are no
oral agreements between the parties hereto affecting this Sublease and this
Sublease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Sublandlord to Subtenant with respect to the subject matter
thereof, and none thereof shall be used to interpret or construe this Sublease.
This Sublease, and the exhibits and schedules attached hereto, contain all of
the terms, covenants, conditions, warranties and agreements of the parties
relating in any manner to the rental, use and occupancy of the Sublease Premises
and shall be considered to be the only agreements between the parties hereto and
their representatives and agents. None of the terms, covenants, conditions or
provisions of this Sublease can be modified, deleted or added to except in
writing signed by the parties hereto. All negotiations and oral agreements
acceptable to both parties have been merged into and are included herein. There
are no other representations or warranties between the parties, and all reliance
with respect to representations is based totally upon the representations and
agreements contained in this Sublease.
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IN WITNESS WHEREOF, the parties have entered into this Sublease as of the
date first written above.
SUBLANDLORD:
New Century Equity Holdings Corp.,
a Delaware Corporation
By: JOHN MURRAY
Its: CHIEF FINANCIAL OFFICER
Date: SEPTEMBER 29, 2004
SUBTENANT:
The Law Offices of
Alfred G. Holcomb, P.C.
By: ALFRED G. HOLCOMB
Its: PRINCIPAL
Date: SEPTEMBER 27, 2004
LANDLORD'S CONSENT
SAOP Union Square L.P., a Texas limited partnership, hereby consents to
this Sublease; provided, however, such consent shall not release or discharge
New Century Equity Holdings Corp. from any liability, past, present or future,
under the Master Lease.
"LANDLORD"
SAOP UNION SQUARE, L.P.,
A TEXAS LIMITED PARTNERSHIP
By: SAOP Unisquare GP, LLC, a Delaware limited liability company, its general
partner
By: San Antonio Office Portfolio, LLC, a Delaware limited liability company,
its sole member
By: SAOPNNM, LLC, its managing member
BY: MARK GRECO
TITLE: VICE PRESIDENT
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EXHIBIT A
COPY OF MASTER LEASE
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EXHIBIT B
SUBLEASE PREMISES
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