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EXHIBIT 10.14
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "SUBLEASE") is entered into effective as of
December 19, 1996, by and between PAVILION TECHNOLOGIES, INC. ("SUBLESSOR"), a
Texas corporation, and ICHAT, a Texas Corporation, ("SUBLESSEE") on the
following terms and conditions:
RECITALS:
A. Security Capital Industrial Trust ("LANDLORD") and Sublessor entered
into a certain Lease Agreement dated February 27, 1996 (hereinafter referred to
as the "LEASE") for the lease of approximately 89,438 rentable square feet of
the building known as Braker # 7 located at Braker Center, 11100 Metric Blvd.,
Austin, Texas 78758 (hereinafter referred to as the "PREMISES").
B. Sublessor desires to sublease a portion of the Premises to Sublessee
on the terms and conditions set forth herein.
C. In connection with the Sublease, Sublessor represents and warrants, to
the best of its knowledge, as follows: (i) the Lease is in full force and
effect; (ii) Sublessor has not received any notice of default from Landlord and
is not aware of any condition which would, with the passage of time, be an
event of default under the Lease; and (iii) Sublessor has not mortgaged or
collaterally assigned its interest in the Lease of the Premises.
NOW, THEREFORE, with reference to the foregoing recitals which are hereby
incorporated in and made a part of this Sublease and in consideration of the
agreements and covenants set forth herein, Sublessor and Sublessee agree as
follows:
1. Sublease of Premises: Possession. Sublessor, in consideration of the
rents reserved and covenants agreed to be kept and performed by Sublessee,
hereby subleases to Sublessee, and Sublessee subleases from Sublessor
approximately 17,002 rentable square feet of the Premises as shown in "Exhibit
A" on the terms and conditions hereinafter set forth (hereinafter referred to as
"SUBLEASED PREMISES"), together with a non-exclusive right for Sublessee, its
customers, guests, invitees, employees, agents and licensees to us all easements
rights and privileges appurtenant thereto, including the right to use the
parking areas, driveways, roads, alleys and other portions of the "COMMON AREAS"
(herein so called) as reflected on the Attached "Exhibit A". Sublessee hereby
expressly agrees to perform any and all obligations and covenants required
hereunder for the term hereof.
2. Subordinate to Lease. This Sublease is and shall be subject and
subordinate to the Lease. Nothing contained in the Sublease shall be construed
to create privity of estate or of contract between Sublessee and Landlord.
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3. Premises Condition. Sublessee accepts the Subleased Premises in their
present condition as of the Commencement Date (as hereinafter defined), subject
to all applicable legal restrictions, the rules and regulations affecting the
Premises promulgated by Landlord from time to time and the terms, conditions and
provisions of this Sublease. Sublessor has made no warranty or representation
as to the suitability of the Subleased Premises for the conduct of Sublessee's
business. The taking of possession of the Subleased Premises by Sublessee shall
evidence Sublessee's acceptance of the Subleased Premises and shall estop
Sublessee from claiming that the Subleased Premises were not in good repair and
condition at the time of the Commencement Date. Sublessee agrees to assume all
costs imposed on Sublessor by Landlord or an authorized agent thereof to make
all Alterations, as defined in Section 22 of this Sublease, in compliance with
applicable federal, state or local laws and regulations, including but not
limited to the American's with Disabilities Act (ADA), CERCLA, all applicable
OSHA regulations and any other applicable laws, regulations or ordinances.
Sublessee acknowledges and agrees that it has inspected the Premiss and agrees
to accept same in its present condition, "AS IS" and "WITH ALL FAULTS."
4. Term. The term of this Sublease shall commence on February 1, 1997,
but in no case later than Feb. 16, 1997 ("COMMENCEMENT DATE"), upon delivery of
the Subleased Premises to Sublessee, free of all tenancies except for
Sublessor's interest in the Lease and terminate at midnight (12:00 a.m.) on
July 31, 1998. Notwithstanding the foregoing, Sublessee may terminate this
Sublease after April 30, 1998 by providing six (6) months advance prior written
notice to Sublessor of Sublessee's intent to cancel this Sublease and the
effective date of early termination. In the event Sublessor does terminate this
Sublease prior to July 31, 1998, pursuant to the terms of this paragraph,
Sublessee will pay Sublessor the amount of Sublessor's costs (tenant
improvements and leasing commissions) which are unamortized as of the early
termination date.
5. Rental.
(a) The rental during the Sublease for the Subleased Premises will
be in the amount of $11,901.40 per month (calculated at $.70 per sq.
ft.) ("FIXED RENT").
(b) Sublessee acknowledges that the Subleased Premises constitute a
portion of the overall Premises leased by Sublessor pursuant to the
terms and conditions of the Lease which provide that Sublessor shall
be responsible for and pay on a monthly basis to Landlord its
proportionate share of operating expenses for the building and
project of which the Premises are a part in addition to all of the
expenses incurred directly by Sublessor in connection with the use
and operation of the Premises. Accordingly, Sublessee agrees to be
responsible for and timely pay Sublessor for Sublessee's
proportionate share of all expenses, including but not limited to,
common area costs and expenses, real estate and personal property
taxes, insurance premiums, utility costs and expenses, all other
costs and expenses passed through or charged to Sublessor by Landlord
under the Lease and other items as expressly discussed herein (such
items are collectively referred to herein as "ADDITIONAL RENT").
Sublessee agrees in addition to Fixed Rent, to pay Sublessor in
advance on the first day of every month hereunder commencing on the
Commencement Date one-twelfth (1/12) of the estimated annual
Additional Rent.
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In January of each year, Sublessor shall provide Sublessee with a
written compilation and computation of the expected operating expenses
and other items constituting Additional Rent for the succeeding year.
By March 1 of each year, Sublessor agrees to provide Sublessee with a
written summary together with supporting information of the prior
year's expenses. Any overage paid by Sublessee in the prior year shall
be credited to the next owed payment of Additional rent.
Alternatively, in the event of any underpayment, Sublessee agrees to
pay such amount to Sublessor within fifteen (15) days of receipt of
such written computation and request therefor.
Sublessor agrees to use reasonable efforts to minimize all such
expenses and to fairly and accurately estimate future years' Additional
Rent (including operating expenses). At this time, annual operating
expenses (on a rentable square footage basis) are estimated to be as
follows:
Common area maintenance $0.297
Taxes 1.089
Insurance 0.048
Other 0.283
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TOTAL: $1.717/sq. ft.
with Sublessee's proportionate share estimated to be $0.1431 per
rentable square foot per month for a total Additional Rent of $2400.50
per month, (please note that this amount does not include Sublessee's
proportionate share of utilities discussed in paragraph 10 below).
(c) Sublessee shall pay all payments required hereunder promptly when
due without notice or demand, without set-off, deduction or
counterclaim of any nature or reason, except as set forth herein.
Sublessee agrees to remit to Sublessor all other costs, charges and
expenses required under the Lease which are deemed rent thereunder.
Sublessee waives and disclaims any present or future right to apply any
payment or part-payment of rent, or to set-off or counterclaim in any
action for rent, against any obligation of Sublessor, however incurred,
and agrees that it will not claim or assert such right, set-off or
counterclaim.
(d) Fixed Rent, Additional Rent and all additional monetary
obligations (collectively referred to herein as "Rental") under the
terms of this Sublease, shall be due and payable and begin to accrue on
the Commencement Date and continue thereafter during the term hereof.
(e) Commission: Sublesser agrees to pay to Magnum Real Estate (sole
agent representing Sublessee) a commission of 4% for leasing,
expansions, renewals and extensions, on net lease revenue.
6. Uses. The Subleased Premises shall be used only for the purposes of
receiving, storing, shipping and selling (but limited to wholesale sales)
products, materials and merchandise made and/or distributed by Sublessee, use as
an engineering lab, for research and development of electronic and computer
related products and for such other lawful purposes as may be incidental
thereto; provided, however, with Sublessor's prior written consent which may not
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unreasonably withheld, conditioned or delayed, Sublessee may also use the
Subleased Premises for light manufacturing. Sublessee shall not conduct or give
notice of any auction, liquidation, or going out of business sale on the
Subleased Premises. Sublessee shall not permit any objectionable odors, smoke,
dust, noise, gas, vibration or any other nuisance. Outside storage of trucks
and other vehicles is prohibited without the express written consent of
Sublessor. Sublessee shall at its own expense use and occupy the Subleased
Premises in compliance with all laws, including without limitation, the
Americans with Disabilities Act (ADA), orders, judgments, ordinances,
regulations, codes, directives, permits, licenses, covenants and restrictions
now or hereafter applicable to the Subleased Premises. Sublessee will not use
or permit the use of the Subleased Premises in a manner that would be
inconsistent with the insurance of Sublessor or Landlord. Sublessee shall at
all times operate and occupy the Subleased Premises in a safe and proper manner
and will not commit waste or overload the floor or structure or perform or
permit anyone to perform an act which would damage the Subleased Premises.
7. Services. If an interruption in services shall occur, Sublessee shall
immediately provide simultaneous notice to Sublessor and Landlord. Sublessor
shall in no event be liable to Sublessee for Landlord's or Sublessor's failure
to provide any services, amenities and rights nor shall any such failure be
construed as a breach hereof by Sublessor or an eviction of Sublessee or
entitle Sublessee to an abatement of any of the Rentals under this Sublease,
except and only to the extent that Sublessor receives an abatement under the
Lease with respect thereto.
8. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, SUBLESSEE ACKNOWLEDGES THAT SUBLESSOR HAS NOT MADE OR WILL MAKE ANY
REPRESENTATIONS OR WARRANTIES TO SUBLESSEE WITH RESPECT TO THE QUALITY OF
CONSTRUCTION OF ANY LEASEHOLD IMPROVEMENTS OR TENANT FINISH WITHIN THE
SUBLEASED PREMISES OR AS TO THE CONDITION OF THE SUBLEASED PREMISES, EITHER
EXPRESS OR IMPLIED, AND THAT SUBLESSOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY
THAT THE SUBLEASED PREMISES ARE OR WILL BE SUITABLE FOR SUBLESSEE'S INTENDED
COMMERCIAL PURPOSES. SUBLESSEE'S OBLIGATION TO PAY RENTALS UNDER THIS SUBLEASE
IS NOT DEPENDENT UPON THE CONDITION OF THE SUBLEASED PREMISES (NOW OR IN THE
FUTURE) OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS UNDER THE LEASE OR BY
SUBLESSOR UNDER THIS SUBLEASE, AND SUBLESSEE SHALL CONTINUE TO PAY THE RENTALS
HEREUNDER WITHOUT ABATEMENT, SET OFF OR DEDUCTION NOTWITHSTANDING ANY BREACH BY
SUBLESSOR OF ITS DUTIES OR OBLIGATIONS UNDER THE SUBLEASE, WHETHER EXPRESS OR
IMPLIED.
9. Repairs and Maintenance. Except for Landlord's obligation of repair
under the Lease regarding structural soundness of the roof, foundation, or
exterior walls of the building in which the Premises is located, Sublessee
covenants and agrees that it shall maintain or cause to be maintained, the
Subleased Premises in good order and repair. Landlord under the Lease has also
agreed to maintain in good repair and condition the parking area and other
common areas of the building. In the event of any repairs, or maintenance that
Sublessee deems to be the responsibility of Landlord, Sublessee shall provide
written notice to both Landlord and Sublessor setting out in detail the repairs
and/or maintenance requested. Sublessor shall have no liability
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to Sublessee resulting from any failure to repair or maintain by Landlord or
resulting from any interruption of utility service to the Subleased Premises,
unless such interruption is caused, in whole or in part, by the negligence or
misconduct of Sublessor.
10. Utilities. Sublessee shall be responsible for all charges for
electricity and gas used in the Subleased Premises as the Subleased Premises are
monitored by a separate meter which does not monitor any other portion of the
Premises. In addition, Sublessee shall be responsible for its pro-rata share of
all other utilities, including but not limited to, sewer, sprinkler services and
other utilities and services used on the Subleased Premises, all maintenance
charges for utilities, and any storm sewer charges or other similar charges
imposed by any governmental entity or utility provider. Sublessee acknowledges
and agrees that it may share various utility meters servicing the Premises with
other sub-tenants and Sublessor, other than the electricity and gas meter
referenced above, and that each user of such meter and corresponding utility
service shall be responsible for and pay for its proportionate share of such
utility service. Sublessee agrees to independently contract for and be solely
responsible for the following services and utilities: telephone, HVAC
maintenance, refuse/trash collection and janitorial. Sublessee agrees to limit
water and sewer use to normal restroom facilities.
11. Taxes on Personalty and Sublease Improvements. Sublessee shall pay
all ad valorem and similar taxes or assessments levied upon or applicable to
all equipment, fixtures, furniture, and other property placed in or on the
Subleased Premises by Sublessee and all license and other fees or charges
imposed on the business conducted by Sublessee on the Subleased Premises.
Sublessee is solely responsible for any increase in ad valorem taxes or other
charges which result from modifications made to the Subleased Premises by
Sublessee or for any failure to modify the Subleased Premises which results in
increased taxes, fines or other penalties. Sublessor shall have the right (but
not the obligation) to pay any such additional costs and to recover them from
Sublessee after presenting a written statement that such sum is due.
12. Sublessee Improvements. Sublessee Improvements. Sublessor and
Sublessee agree that each will provide a dollar-for-dollar matching finish out
allowance of up to a total of $25,000 each in order to accommodate any
improvements to the Subleased Premises, including municipal permits, and
architectural and engineering fees incurred by Sublessee. Sublessee shall
install or retain, as part of the above referenced improvements, a coffee bar
with a sink within the Subleased Premises. Sublessor will reimburse Sublessee
to the extent provided above for approved sublease improvements and related
costs and expenses within thirty (30) days of Sublessor's receipt of written
request therefor accompanied by suitable supporting documentation. Sublessee
will ensure that all improvements and alterations made to the Subleased
Premises comply with all applicable codes and ordinances. Sublessor agrees to
make available to Sublessee, at no cost to Sublessee, the carpet tiles
currently stored by Sublessor. Sublessee may not make or cause to be made any
improvements or alterations to the Subleased Premises without the prior
approval of Sublessor and Landlord. Sublessee must provide Sublessor with
as-built drawings of any improvements Sublessee makes to the Subleased Premises.
13. Parking. Sublessee shall be entitled to park in common areas with
other tenants of the Premises in those areas designated for non-reserved
parking. Sublessor shall have no
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obligation or responsibility for enforcing Sublessee's parking rights, and
Sublessee acknowledges that Landlord ultimately controls all parking areas.
Sublessee shall have access to one (1) parking space for every three hundred
and seventy (370) rentable square feet leased by it. Sublessee agrees to
require its non-officer employees to park in the area located behind the
building. Sublessee acknowledges that all deliveries to the Subleased Premises
are to utilize the truck court and that no trucks, trailers, delivery vehicles
or similar vehicles are allowed to be parked in the common areas for any period
other than as necessary for delivery.
14. Signage. Sublessee shall not make any changes to the exterior of the
Premises, or install any lights, decorations, signs, painting, advertising or
any other item of a similar nature without the prior written consent of
Sublessor and Landlord. For any approved signage or other item, Sublessee shall
be solely responsible for all expenses of installation and securance of any and
all required municipal permits. Subject to Sublessor's and Landlord's design
approval, Sublessee shall be entitled to signage on the monument directory and
at the entrance to the Subleased Premises.
15. Insurance, Taxes, Other Charges.
(a) Sublessor, under the terms of the Lease has agreed to carry or cause to
be carried on the Premises during the term hereof, commercial general liability
insurance and all risk property insurance for the Premises and Sublessor's
improvements located therein. During the term of this Sublease, Sublessee agrees
to reimburse Sublessor for Sublessee's proportionate share of Sublessor's annual
total cost for the premiums for Sublessor's insurance which shall be due and
payable in advance as follows: (i) commencing on the Commencement Date, and
continuing on the first day of each month thereafter, Sublessee shall pay
monthly to Sublessor, Sublessee's proportionate share of the cost for the
premiums of such insurance, and (ii) any additional amounts for Sublessee's
proportionate share shall be paid within fifteen (15) days of written request
therefore from Sublessor;
(b) Sublessee, at its expense, shall maintain during the term of this
Sublease the following: all risk property insurance covering the full
replacement cost of all property and improvements installed or placed in the
Subleased Premises by Sublessee; workers' compensation insurance with no less
than the minimum limits required by law, if applicable; employer's liability
insurance with such limits as are required by law and commercial liability
insurance, with the minimum limit of $1,000,000 per occurrence and a minimum
umbrella limit of $1,000,000, for a total minimum combined general liability and
umbrella limit of $2,000,000 (together with such additional umbrella coverage as
Landlord and/or Sublessor may reasonably require) for property damage, personal
injuries, or deaths of persons occurring in or about the Subleased Premises. The
commercial liability policies shall name Landlord and Sublessor as additional
insureds, insure on an occurrence and not a claims-made basis, issued by
insurance companies which are reasonably acceptable to Landlord and/or
Sublessor, not be cancelable unless thirty (30) days prior written notice shall
have been given to Landlord, contain a hostile fire endorsement and contractual
liability endorsement and provide primary coverage to Landlord and Sublessor
(any policy issued to Landlord and Sublessor providing duplicate or similar
coverage shall be deemed excess over
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Sublessee's policies). Such policies or certificates thereof shall be delivered
to Sublessor by Tenant upon commencement of the sublease term and upon each
renewal of said insurance.
(c) The all risk property insurance obtained by Landlord, Sublessor
and Sublessee shall each include a waiver of subrogation and recovery by the
insurers and all rights based upon an assignment from its insured, against
Landlord, Sublessor or Sublessee, their officers, directors, employees,
managers, agents, invitees and contractors, in connection with any loss or
damage thereby insured against. None of the parties nor their respective
officers, directors, employees, managers, agents, representatives, invitees or
contractors shall be liable to the others for loss or damage caused by any risk
coverable by All Risk Property Insurance, and each party waives any claims
against the other party, and its officers, directors, employees, managers,
agents, representatives, invitees and contractors, for such loss or damage.
Sublessor and its agents, employees and contractors shall not be liable for, and
Sublessee hereby waives all claims against such parties for, business
interruption and losses occasioned thereby sustained by Sublessee or any person
claiming through Sublessee resulting from any accident or occurrence in or upon
the Premises from any cause whatsoever, including without limitation, damage
caused in whole or in part, directly or indirectly, by the negligence of
Landlord, or Sublessor, or their respective agents, representatives, employees
or contractors.
(d) Sublessee and its invitees, employees, contractors and
agents shall not be liable for, and Sublessor hereby waives all claims against
Sublessee and its invitees, employees, contractors and agents for damage to
property sustained by Sublessor or any person claiming through Sublessor
resulting from any accident or occurrence in or upon the Subleased Premises,
from any cause whatsoever, including, without limitation, damage in whole or in
part, directly or indirectly, by the negligence of Sublessee or its invitees,
employees, contractors or agents; provided, however, such waiver shall only
apply to claims in excess of the commercially reasonable deductible under
Sublessor's insurance policy.
(e) Sublessor covenants and agrees to indemnify and save
Sublessee, its employees and agents, harmless of and from any and all claims,
costs, expenses and liabilities, including, without limitation, attorneys' fees,
arising on account of or by reason of claims by third parties for injuries or
death to persons or damages to property resulting from the negligence or willful
misconduct of Sublessor or its agents, employees or contractors, to the extent
not attributable to any negligence of Sublessee, or its employees, agents or
contractors. If a claim under the foregoing indemnity is made against the
indemnitee which the indemnitee believes to be covered by an indemnitor's
indemnification obligation hereunder, the indemnitee shall promptly notify the
indemnitor of the claim and, in such notice, shall offer to the indemnitor the
opportunity to assume the defense of the claim within 10 business days after
receipt of the notice (with counsel reasonably acceptable to the indemnitee). If
the indemnitor timely elects to assume the defense of the claim, the indemnitor
shall have the right to settle the claim on any terms it considers reasonable
and without indemnitee's prior written consent, as long as the settlement shall
not require the indemnitee to render any performance or pay any consideration,
and the indemnitee shall not have the right to settle any such claim. If the
indemnitor fails to timely elect to assume the defense of the claim or fails to
defend the claim with diligence, then the indemnitee shall have the right to
take over the defense of the claim and to settle the claim on any terms the
indemnitee
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considers reasonable. Any such settlement shall be valid as against the
indemnitor. If the indemnitor assumes the defense of a claim, the indemnitee may
employ its own counsel but such employment shall be at the sole expense of the
indemnitee. If any such claim arises out of the negligence of both Sublessor and
Sublessee, responsibility for such claim shall be allocated between Sublessor
and Sublessee based on their respective degrees of negligence. This indemnity
does not cover claims arising from the presence or release of Hazardous
Materials.
16. Fire or Other Casualty. If the Subleased Premises are destroyed in
whole or in part by fire or other casualty at any time during the Sublease and
if after such damage or destruction, Sublessee, in its reasonable judgment, is
not able to use Subleased Premises to substantially the same extent and for
substantially the same purposes as Sublessee used the Subleased Premises before
the fire or other casualty, Sublessee simultaneously shall give to Sublessor
and Landlord written notice describing in reasonable detail the destruction. If
the damage is not the result of negligence on the part of Sublessee, its
agents, employees, or invitees and the Landlord terminates the Lease, this
Sublease shall automatically terminate. If Landlord elects to restore or repair
the damage so that the Subleased Premises are substantially the same as before
the damage, the Sublease shall continue in effect in accordance with its terms,
except that if Sublessor receives any abatement in rent, Sublessee shall
receive an abatement in its Rental equal to the same percentage abatement
received by Sublessor. If the damage is a result of the negligence of Sublessee
or any of its agents, employees or invitees, then this Sublease shall continue
in full effect in accordance with its terms with no abatement in the Rental.
Sublessee shall furthermore be liable either to Sublessor or Landlord, at
Sublessor's election, for all costs incurred in repairing or replacing the
damage caused by the negligent action of Sublessee, its agents, employees, or
invitees. SUBLESSEE ALSO AGREES TO INDEMNIFY SUBLESSOR FOR ANY AND ALL CLAIMS
MADE AGAINST SUBLESSOR BY LANDLORD OR ANY OTHER PARTY, WHETHER SOUNDING IN
CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE, WHICH CLAIMS ARISE IN ANY MANNER
FROM THE DAMAGE CAUSED BY THE SUBLESSEE'S, ITS AGENTS', EMPLOYEES',
REPRESENTATIVES OR INVITEES' NEGLIGENCE.
17. Environmental Requirements. Except for Hazardous Materials (as
hereinafter defined) contained in de minimis quantities for ordinary cleaning
or office purposes, Sublessee shall not permit or cause any party to bring any
Hazardous Material upon the Subleased Premises or to transport, store, use,
generate, manufacture or release any Hazardous Material in or about the
Subleased Premises without the prior written consent of Sublessor. Sublessee,
at its sole cost and expense shall operate its business in strict compliance
with all Environmental Requirements (as hereinafter defined) and shall remedy in
a manner satisfactory to Sublessor any Hazardous Material released on or from
the Subleased Premises by Sublessee, its agents, employees, representatives, or
invitees. Sublessee shall complete and certify to disclosure statements as
reasonably requested by Sublessor from time to time relating to Sublessee's
transportation, storage, use, generation, manufacture or release of Hazardous
Materials on the Subleased Premises. The term "ENVIRONMENTAL REQUIREMENTS"
means all applicable present and future statutes, regulations, ordinances,
codes, judgments, orders or other similar enactments of any governmental
authority or agency regulating or relating to health, safety, environmental
conditions on, under, or about the Premises, including the Subleased Premises,
including, but not limited to,
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the following: Comprehensive Environmental Response, Compensation and Liability
Act; Resource Conservation and Recovery Act; and all state and local laws which
are counterparts or related thereto and any regulations or policies promulgated
thereunder. "HAZARDOUS MATERIALS" include, but are not limited to; substances,
materials, waste, pollutant, or contaminant listed or defined as hazardous or
toxic, under any Environmental Requirements, asbestos, petroleum, including
crude oil or any fraction thereof, natural gas liquids, liquefied natural gas,
or synthetic gas usable for fuel. As defined in Environmental Requirements,
Sublessee is and shall be deemed to be the operator of the Sublessee's
facility, and the owner of all Hazardous Material brought on the Subleased
Premises by Sublessee, its agents, employees, or invitees and the waste,
by-products, or residues generated, resulting or produced therefrom.
Sublessee shall indemnify, defend and hold Sublessor harmless from and
against any and all losses, claims, demands, actions, suits, damages, expenses
including without limitation repair, remediation, removal, or clean-up
expenses, and costs which are brought or recoverable against or suffered or
incurred by Sublessor as a result of the release of Hazardous Materials for
which Sublessee is obligated to remedy as provided above or other breach of the
requirements under this Sublease by Sublessee, its agents, employees, or
invitees, regardless of whether Sublessee had any knowledge of this
noncompliance. THE OBLIGATIONS OF SUBLESSEE UNDER THIS PARAGRAPH SHALL SURVIVE
THE TERMINATION OR EXPIRATION OF THIS SUBLEASE.
Sublessor shall have access to, and a right to perform inspections and
tests on the Subleased Premises to determine Sublessee's compliance with the
Environmental Requirements and other obligations under this provision. Access
shall be granted to Sublessor upon Sublessor's prior written notice to
Sublessee and at such times as to minimize, so far as may be reasonable under
the circumstances, any interference with Sublessee's business. Such inspections
shall be conducted at Sublessor's expense unless the tests demonstrate that
Sublessee has failed to comply with the provisions of this section, in which
case Sublessee shall reimburse Sublessor for all costs incurred for the
inspection and the tests. Sublessor's receipt of or satisfaction with any
environmental assessment in no way waives any rights that Sublessor holds
against Sublessee.
18. Default by Sublessee; Remedies of Sublessor. In case of any breach
hereunder by Sublessee, in addition to all other rights of Sublessor hereunder
or available to Sublessor at law or equity, Sublessor shall have all the rights
against Sublessee as would be available to Landlord against Sublessor under the
Lease if such breach were by Sublessor thereunder. If Sublessee defaults in the
timely and satisfactory performance of any of the terms and provisions hereof
and Sublessor places the enforcement of this Sublease in the hands of an
attorney, Sublessee agrees to reimburse Sublessor for all reasonable costs and
expenses incurred by Sublessor as a result thereof including, but not limited
to, reasonable attorneys' fees and court costs.
19. Sublessor's Right to Perform Sublessee's Obligations. Upon default,
in addition to any other rights that Sublessor has under this Sublease or at
law or in equity, Sublessor shall have the right but not the obligation to
perform all or any part of such obligations of Sublessee. Upon a receipt of the
demand therefor from Sublessor, Sublessee shall reimburse Sublessor for the
reasonable costs to Sublessor of performing such obligations plus the interest
thereon at the
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maximum rate of interest at which Sublessee may lawfully contract in Texas from
the date such costs are paid by Sublessor until Sublessee reimburses Sublessor.
20. Indemnity by Sublessee. Sublessee shall indemnify and hold Sublessor,
its officers, directors, shareholders, representatives, agents and employees,
free and harmless of and from any and all demands, claims, causes of action,
fines, penalties, losses, liabilities, judgments and expenses (including
without limitation, attorney's fees and court costs) incurred, directly or
indirectly, in connection with or arising from: (a) the use or occupancy of the
Subleased Premises by Sublessee or any person claiming under Sublessee; (b) any
activity, work or thing done, or permitted or suffered by Sublessee in or about
the Subleased Premises; (c) any acts, omissions or negligence of Sublessee or
any person claiming under Sublessee, or the contractors, agents, employees,
invitees, or visitors of Sublessee or any such person; or (d) any breach,
violation or nonperformance by Sublessee or any person claiming under Sublessee
or the employees, agents, contractors, invitees, or visitors of Sublessee or
any such person of any term, covenant or provision of this Sublease, or any
law, ordinance or government requirement of any kind. If any action or
proceeding is brought against Sublessor, its employees or agents by reason of
any such claim, Sublessee, upon notice from Sublessor, shall defend the claim
at Sublessee's expense with counsel reasonably satisfactory to Sublessor. The
obligations of Sublessee under this paragraph shall survive the termination or
expiration of this Sublease.
21. Indemnity by Sublessor. Sublessor shall indemnify and hold Sublessee,
its officers, directors, shareholders, representatives, agents and employees,
free and harmless of and from any and all demands, claims, causes of action,
fines, penalties, damages, losses, liabilities, judgments and expenses
(including without limitation, attorney's fees and court costs) incurred in
connection with or arising from: (a) the prior use or occupancy of the Premises
by Sublessor or any person claiming under Sublessor; (b) any activity, work or
thing done, or permitted or suffered by Sublessor in or about the Premises; (c)
any acts, omissions or negligence of Sublessor or any person claiming under
Sublessor, or the contractor, agents, employees, invitees, or visitors of
Sublessor or any such person; or (d) any breach, violation or nonperformance by
Sublessor or any person claiming under Sublessor or the employees, agents,
contractors, invitees, or visitors of Sublessor or any such person of and term,
covenant or provision of this Sublease, or any law, ordinance or government
requirement of any kind. If any action or proceeding is brought against
Sublessee, its employees or agents by reason of any such claim, Sublessor, upon
notice from Sublessee, shall defend the claim at Sublessor's expense with
counsel reasonably satisfactory to Sublessee.
22. Alterations.
(a) Any alterations, additions or improvements made by or on behalf of
Sublessee to the Subleased Premises ("ALTERATIONS"), other than those
specifically approved herein, shall be subject to Landlord's and Sublessor's
prior written consent, which may be withheld in the sole discretion of Landlord
or Sublessor, respectively. Sublessee shall cause, at its sole expense, all
Alterations to comply with insurance and all legal requirements and shall be
constructed at Sublessee's sole cost and expense. All approved Alterations
shall be constructed in a good and workmanlike manner by contractors reasonably
acceptable to Sublessor and only good grades of
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material shall be used. Any and all plans and specifications for any
alterations shall be submitted to Sublessor for its approval. Sublessor may
monitor construction of the Alterations. Sublessor's right to review plans and
specifications and to monitor construction shall be solely for its own benefit,
and Sublessor shall have no duty to see that such plans and specifications or
construction comply with applicable laws, codes, rules and regulations.
Sublessee agrees to furnish security or make other arrangements reasonably
satisfactory to Sublessor to assure payment for the completion of all work,
free and clear of any and all liens and shall provide certificates of insurance
in amounts and from an insurance company satisfactory to Sublessor protecting
Sublessor and Landlord against liability from personal injury or property
damage during construction. Upon surrender of these Subleased Premises, all
alterations and any leasehold improvements constructed by Sublessor or
Sublessee shall remain on the Subleased Premises as Sublessor's property,
except to the extent Sublessor or Landlord requires removal at Sublessee's
expense of any such items or to which Sublessor or Landlord have otherwise
agreed in writing in connection with Sublessor's consent to any Alterations.
Sublessee shall repair any and all damage caused by such removal.
(b) Sublessee, at its own cost and expense and without need for
Sublessor's prior written approval, may erect such shelves, bins, machinery and
trade fixtures (collectively "TRADE FIXTURES") in the ordinary course of its
business provided that such items do not alter the basic character of the
Subleased Premises, do not overload or damage the Subleased Premises, and may
be removed without injury to the Premises, and the construction, erection and
installation thereof complies with all legal requirements and with Sublessor's
requirements set forth above. Sublessee shall remove its Trade Fixtures and
shall repair and all damage caused by such removal.
(c) Sublessor and Sublessee acknowledge and agree that Sublessee will
submit plans and specifications and related items prepared by RTG Partners,
Inc. for the Subleased Premises prior to making any improvements to the
Subleased Premises. Subject to the mutual agreement between Sublessor and
Sublessee regarding such plans, both parties agree that these plans will be
utilized for the construction of the subleased improvements. There shall be no
modifications, alterations or changes to such plans by Sublessee without the
prior written consent of Sublessor, which shall be made in Sublessor's sole
discretion.
23. Waiver and Release. Sublessor and Sublessee hereby agree to waive and
release all claims, liabilities and causes of action against each other and
their respective officers, directors, shareholders, representatives, agents,
and employees for loss or damage to or destruction of, the buildings and other
improvements, fixtures, equipment, supplies, merchandise and other property,
whether that of the party or of others in, upon or situated or about the
Premises resulting from fire, explosion or other perils included in standard
extended coverage insurance, whether caused by the negligence of any of said
persons or otherwise. This waiver shall remain in full force so long as each
party's insurer shall consent thereto. The foregoing mutual waivers are given
in consideration of each other and the termination or suspension of one shall
with like effect terminate or suspend the other.
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24. Inspection. Upon 24 hours notice, except in cases of emergency,
Sublessor and its agents, representatives and contractors may enter the
Subleased Premises during business hours to inspect the Subleased Premises.
25. Consent of Landlord. This Sublease shall be void unless the consent
of the Landlord to this Sublease is obtained in writing. Sublessee agrees that
all rights and privileges granted hereunder are subject to the limitations in
the Lease and that Sublessor is not granting any rights or privileges to
Sublessee over and above those which Sublessor is entitled under the Lease.
26. Prohibition on Subletting. Sublessee is prohibited from subleasing or
assigning the Sublease, its rights thereunder, any or all of the Subleased
Premises, or in any other way encumbering or creating a lien on the Subleased
Premises.
27. Surrender of Premises. Sublessee shall, upon the expiration of the
term granted herein, or any earlier termination of the Sublease for any cause,
surrender the Subleased Premises to Sublessor, including without limitation, all
building apparatus and equipment then upon the Subleased Premises, and all
alterations, improvements and other additions which may be made or installed by
either party to, in, upon or about the Subleased Premises, other than
Sublessee's property (which shall remain the property of Sublessee), broom
clean, without any damage, injury or disturbance thereto (reasonable wear and
year, loss due to condemnation, and damage due to casualty excepted), or payment
therefor.
28. Holding Over. If Sublessee does not surrender possession of the
Subleased Premises at the end of the term of the Sublease, Sublessee shall be a
tenant-at-sufferance of the Sublessor and shall owe rent owe rent for the
duration of the holdover equal to one hundred fifty percent (150%) of the
Rentals, including Fixed Rent and Additional Rent. No holding over shall
operate to extend this Sublease and in the event of any such holdover,
Sublessee shall, in addition to all other obligations and liabilities of
Sublessee hereunder, all of which shall remain in full force while Sublessee is
a tenant-at-sufferance, indemnify, defend and hold harmless Sublessor from and
against any and all clams for damages brought by Landlord or any other tenant
or any other party.
29. Arbitration. Sublessee hereby agrees to submit all disputes arising
out of this Sublease to arbitration in accordance with the rules and procedure
of the American Arbitration Association.
30. Entire Agreement. No oral statements or prior written material not
specifically incorporated herein shall be of any force or effect. Sublessee
agrees that in entering into this Sublease, it has relied solely on the
representations and agreements contained herein. This Sublease constitutes the
entire agreement between Sublessor and Sublessee and shall in no way be modified
or otherwise altered by Sublessee without the prior written consent of
Sublessor and the Landlord.
31. Notices. All notices required or permitted to be given hereunder, or
given in regard to this Sublease by one party to the other, shall be in writing
and the same shall be given
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and be deemed to have been served and given (a) if mailed, when placed in the
United States mail, postage prepaid, by certified mail, return receipt
requested, addressed to the party to whom notice is given at the address
hereinafter specified, or (b) if hand delivered in any other manner, when
actually received by the party to whom notice is given, or (c) if sent by
facsimile, immediately upon facsimile transmittal with a copy of the notice and
proof of transmission delivered by certified mail, return receipt requested, or
(d) if sent by a nationally recognized overnight courier, one (1) day after
being deposited with such courier. Any party hereto may, at any time by giving
five (5) days' written notice to the other party hereto, designate any other
address or addressee in substitution of its specified address or addressee to
which such notices shall be given.
If to Sublessor:
Pavilion Technologies, Inc.
11100 Metric Blvd.
Broker #7, Suite 700
Austin, Texas 787
Attention: Facilities Manager
FAX (512) 438-1401
With a copy to:
Jenkens & Gilchrist
2200 One American Center
600 Congress Avenue
Austin, Texas 78701
Attention: J. Bradley Greenblum
FAX: (512) 404-3520
If to Sublessee:
ICHAT at Subleased Premises
Attention: Chief Financial Officer
FAX: (512) 349-0005
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With a copy to:
Brobeck, Phleger & Harrison LLP
301 Congress Ave., Suite 1200
Austin, TX 78701
Attention: Mike Dunn
FAX: (512) 477-5813
If to Landlord:
Security Capital Industrial Trust
c/o SCI Client Services Incorporated
9101 Wall Street, Suite 1080
Austin, Texas 78754
With a copy to:
Security Capital Industrial Trust
14100 East 35th Place
Aurora, Colorado 80011
FAX: (303) 375-8581
32. Cure of Defaults. Sublessee shall be entitled to cure any default by
Sublessor under the Lease, and shall be entitled to offset any amounts so spent
against further sums due under the Sublease, in addition to any other remedy
available at law.
33. Counterparts. This Sublease may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
34. Successor Landlord. When the term "Landlord" is used herein, such
term shall also mean any party succeeding to Landlord's interest in the Lease.
35. Liens. Sublessee agrees to not allow and to discharge any and all
liens, encumbrances or charges arising out of the work of any contractor,
mechanic, labor or laborer or material contracted for by Sublessee. If any lien
or notice of lien on account of an alleged debt of Sublessee or any notice of
contract by a party engaged by Sublessee or Sublessee's contractor to work in
the Subleased Premises shall be filed against the Premiss, Sublessee shall,
within thirty (30) days after notice of the filing thereof, cause the same to
be discharged of record by payment, deposit or bond.
36. Nonrecordation of Sublease. Sublessee shall not record the Sublease.
Upon request by Sublessee, the parties shall join in the execution of a
memorandum of this Sublease for the purpose of recordation. Any recording costs
associated with the memorandum of this Sublease shall be borne by the party
requesting recordation.
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37. Attorney's Fees. In the event that at any time during the term of this
Sublease, either party shall institute any action or proceeding against the
other relating to the provisions of this Sublease, or any default hereunder, the
unsuccessful party in such action or proceeding agrees to reimburse the
successful party for the reasonable expenses of attorney's fees and other costs
and expenses incurred therein by the successful party.
38. Remedies. All rights and remedies of the Sublessor and Sublessee
herein created or otherwise existing at law are cumulative and the exercise of
one or more rights or remedies may be exercised and enforced concurrently or
consecutively and whenever and as often as deemed desirable.
39. Waiver. The failure of either Sublessor or Sublessee to insist upon
strict performance by the other of any of the covenants, conditions and
agreements of this Sublease shall not be deemed a waiver of any subsequent
breach or default and any of the covenants, conditions and agreements of this
Sublease. No surrender of the Subleased Premises by Sublessee shall be affected
by Sublessor's acceptance of Rental or by any other means whatsoever nor shall
acceptance of Rental be deemed a waiver of any other right or remedy by
Sublessor, unless the same is evidenced by Sublessor's written acceptance of the
surrender or other waiver.
40. Estoppel. At any time and from time to time either party, upon
request of the other party, shall execute, acknowledge and deliver an
instrument, stating, if the same be true, that this Sublease is a true and
exact copy of the Sublease, that there are no amendments hereto (or, if not so,
stating what amendments there may be), that this Sublease is then in full force
and effect, and including such other customary language and information that is
generally included in estoppel certificates. Such instrument will be executed
by the other party and delivered to the requesting party within fifteen (15)
days of receipt of such written request therefor.
41. Severability. Any provision of the Sublease which shall prove to be
invalid, void or illegal, shall in no way affect, impair or invalidate any
other provision hereof and such other provisions shall remain in full force and
effect.
42. Laws and Ordinances. Except as specifically set forth herein,
Sublessee agrees, at is sole cost and expense, to comply with all existing and
future laws, ordinances, orders and regulations regarding the Subleased
Premises and Sublessee's operations therein.
43. Rules and Regulations. Sublessee shall, at all times during the lease
term, comply with all reasonable rules and regulations at any time or from time
to time established by Landlord covering use of the Premises. Sublessor shall
not have any liability or obligation for the breach of any rules or regulations
by other tenants in the buildings constituting a portion of the project in
which the Premises is located or in the enforcement by Landlord of such rules
and regulations.
44. Force Majeure. Sublessor shall not be held responsible for delays in
the performance of its obligations hereunder when caused by strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefore, governmental
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restrictions, regulations or controls, delays in the issuances of permits,
enemy or hostile action, civil commotion, fire or other casualty, or other
causes beyond a reasonable control of Sublessor.
45. Limitation of Liability of Sublessor and Officers and Shareholders of
Sublessor. Any obligation or liability whatsoever of Sublessor hereunder, which
may arise at any time under the Sublease or any obligation or liability which
may be incurred by it pursuant to any other instrument, transaction or
undertaken and contemplated hereby shall not be personally binding upon, nor
shall resort for the enforcement thereof be had to the property of, the
directors, officers, shareholders, employees, representatives or agents of
Sublessor, regardless of whether such obligation or liability is in the nature
of contractor, or otherwise.
46. Late Charter and Interest on Overdue Rental. If any installment of
Fixed Rent or Additional Rent is not received on the due date thereof,
Sublessor will provide written notice to Sublessee regarding same. If the
installment of Rent and/or Additional Rent is not paid within five (5) days
after written notice is submitted to Sublessee, (without in any way implying
Sublessor's consent to such late payment), Sublessee agrees to pay Sublessor a
late charge equal to five percent (5%) of the installment of Rental due and
unpaid, in addition to said installment, it being understood that the late
charge shall constitute liquidated damages and shall be for the purpose of
reimbursing Sublessor for the additional costs and expenses incurred by
Sublessor. In addition to the late charge, Sublessor agrees to pay Sublessee
interest, at the maximum rate allowed by law, on any Fixed rent or Additional
Rent not paid within thirty (30) days after the due date thereof, which
interest shall accrue from the due date to the date of payment. Notwithstanding
the foregoing, the late charge shall not apply to any sum which may have been
advanced by Sublessor to or for the benefit of Sublessee pursuant to any
provision of this lease, it being understood that such sum shall bear interest,
which Sublessee agrees to pay Sublessor at the highest maximum allowable
interest rate.
47. Security Deposit. Sublessor agrees to deliver contemporaneously with
its execution hereof, a security deposit in the amount of $14,500.00 which shall
be held by Sublessor, without liability for interest, as security for the
performance of Sublessee of Sublessee's covenants and obligations under this
Sublease, it being expressly understood that the security deposit shall not be
considered as advance payment of Rental or a measure of Sublessor's damages in
the case of default by Sublessee. Upon occurrence of any event of default
hereunder, Sublessor, from time to time and without prejudice to any other
remedy, may use the security deposit to the extent necessary to make good any
arrearages of Rental and any other damages, injury, expense or liability caused
to Sublessor by such event of default. Following any such application of the
security deposit, Sublessee shall pay Sublessor on demand the amount so applied
in order to restore the security deposit to its original amount. If Sublessor
has not been in default hereunder, any remaining balance of the security
deposit shall be returned to Sublessee by Sublessor within a reasonable period
of time after the termination of this Sublease. If Sublessor transfers its
interest in the Premises during the term hereof, Sublessor may assign the
security deposit to the transferee and thereafter, Sublessor shall have no
further liability to Sublessee for the return of the security deposit.
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IN WITNESS WHEREOF, the parties have executed this Sublease Agreement as of
the day and year set forth above.
SUBLESSOR:
PAVILION TECHNOLOGIES, INC.,
a Texas corporation
By: /s/ RONALD R. RIDESER
------------------------------------
Name: Ronald R. Rideser
----------------------------------
Title: President & CEO
----------------------------------
SUBLESSEE:
ICHAT
a Delaware corporation
By: /s/ R.N. MACDONALD
------------------------------------
Name: R.N. MacDonald
----------------------------------
Title: CFO
---------------------------------
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EXHIBIT "A"
ICHAT LEASE SPACE
[GRAPHIC]
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CONSENT BY LANDLORD TO SUBLEASE
The undersigned, as Landlord under that certain Lease dated February 27,
1996, with Pavilion Technologies, Inc., ("Sublandlord") for certain premises at
11100 Metric Blvd., Austin, Texas, (the "Prime Lease"), hereby consents to the
entering into of the foregoing Sublease dated ________________________, 1996,
("Sublease") between Sublandlord, as Sublessor, and ichat as Subtenant
("Subtenant"), upon the express understandings and conditions that:
a. Landlord neither approves nor disapproves the terms, conditions and
agreements contained in the Sublease (all of which shall be
subordinate and subject at all times to the terms, covenants and
conditions of the Prime Lease) and assumes no liability or obligation
of any kind whatsoever on account of anything contained in the
Sublease;
b. By executing this consent, Landlord shall not be deemed to have waived
any rights under the Prime Lease nor shall Landlord be deemed to have
waived Sublandlord's obligations to obtain any required consents under
the Prime Lease (other than consent to the Sublease itself);
c. Notwithstanding anything in the Sublease to the contrary, Sublandlord
shall be and continue to remain liable for the payment of rent and the
full and prompt performance of all of the obligations of Tenant under
and set forth in the Prime Lease;
d. Nothing contained in the Sublease shall be taken or construed to in
any way modify, alter, waive or affect any of the terms, covenants or
conditions contained in the Prime Lease, or be deemed to grant
Subtenant any privity of contract with Landlord, or require Landlord
to accept any payments form Subtenant on behalf of Sublandlord;
e. The Sublease shall be deemed and agreed to be a sublease only and not
an assignment and there shall be no further subletting or assignment
or all or any portion of the premises demised under the Prime Lease
(including the premises demised by the foregoing Sublease) except in
accordance with the terms and conditions of the Prime Lease; and
f. If Landlord terminates the Prime Lease as a result of a default by
Sublandlord thereunder, the Sublease shall automatically terminate concurrently
therewith unless Landlord elects in writing to keep the Sublease in full force
and effect in which case the Sublease shall become and be deemed to be a direct
indenture of lease between Landlord and Subtenant.
LANDLORD
SECURITY CAPITAL INDUSTRIAL TRUST
By: /s/ STEVEN K. MEYER
-----------------------------
Name: Steven K. Meyer
-----------------------------
Title: Senior Vice President
-----------------------------
Dated: December 12, 1996
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SECOND AMENDMENT OF SUBLEASE AGREEMENT
This SECOND AMENDMENT OF SUBLEASE AGREEMENT (the "Amendment No. 2") is
made and entered into by and between PAVILION TECHNOLOGIES, INC., a Texas
corporation ("Sublessor") and ACUITY CORP. (f/k/a ICHAT), a Delaware
corporation ("SUBLESSEE").
WHEREAS, Sublessor and Sublessee entered into that certain Sublease
Agreement (the "Sublease") dated December 19, 1996 pursuant to which Sublessor
subleased to Sublessee, and Sublessee subleased from Sublessor, approximately
17,002 rentable square feet of that certain building known as Braker #7 located
at Braker Center, 11100 Metric Blvd., Austin, Texas 78758 (the "Premises").
WHEREAS, Sublessor and Sublessee amended the Sublease by that certain
Amendment of Sublease (the "Amendment No. 1") deemed by the Sublessor and
Sublessee to be dated June 1, 1998, in order to increase the rentable square
feet of the Premises to 22058, among other changes;
WHEREAS, Sublessor and Sublessee desire to further amend the Sublease to
change certain terms and provisions thereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree as
follows:
1. Extension of Term. The termination date of the Term is hereby
extended to June 30, 2000, midnight (12:00 a.m.) local time.
2. Extension Option. Sublessee may elect to extend the termination
date of the Term to June 30, 2001, with an increase to Fixed Rent
and Additional Rent to be determined by Sublessor and Sublessee
at that time, provided that (a) Sublessee furnishes Sublessor
with no fewer than four (4) months' prior written notice of the
extended termination date; and (b) Sublessor has not previously
notified Sublessee in writing of Sublessor's election not to
extend the termination date of the Term.
3. Increase in Rental. The Fixed Rent is hereby increased to
$16,543.50 per month (calculated at $.75 per rsf), and the first
payment reflecting such increase shall be due on July 1, 1999.
4. Additional Rent. Paragraph 5(b) of the Sublease is hereby amended
as follows: The third sentence through the end of Paragraph 5(b)
is deleted and replaced with the following: "Sublessee shall pay
the Additional Rent (including any increases or adjustments
thereto) for the Subleased Premises in accordance with any and
all of the terms and provisions set forth in the Lease by and
between Landlord and Sublessor which pertain to the items that
collectively comprise Additional Rent. Sublessor will provide any
and all credits or adjustments (if applicable), notices,
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Information and documentation to Sublessee with regard to the
Additional Rent for the Subleased Premises (including any increases
thereto) as, and to the extent, that such credits or adjustments (if
applicable), notices, information and documentation are made available
to Sublessor by Landlord."
This Amendment No. 2 may be executed in any number of counterparts with the
same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart. In the event of any conflict between the terms of the Sublease or
Amendment No. 1 and the terms of this Amendment No. 2, the terms of this
Amendment No. 2 will prevail. Except as specifically amended herein, all terms
and conditions of the Sublease and Amendment No. 1 shall continue in full force
and effect.
Dated to be effective the ____ day of January, 1999.
SUBLESSOR:
PAVILION TECHNOLOGIES, INC.,
a Texas corporation
By: /s/ KEVIN NAUGHTON
-------------------------------
Name: Kevin Naughton
-------------------------------
Title: CFO
------------------------------
SUBLESSEE:
ACUITY CORP. (f/k/a ICHAT),
a Delaware corporation
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------
Name: [ILLEGIBLE]
-------------------------------
Title: Controller, Asst. Sec.
-------------------------------
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