EXHIBIT 10.10.4
SUBLEASE
THIS SUBLEASE is made as of November 16, 1999, by and between Brigham Oil &
Gas, L.P., a Delaware limited partnership ("Sublandlord"), and ShowSupport.com,
Inc., a Delaware corporation ("Subtenant").
RECITALS:
A. Sublandlord leases certain office space in the office building known as
Two Bridge Point, located at 6300 Bridge Point Parkway, Austin, Texas (the
"Building"), pursuant to the Two Bridge Point Lease Agreement dated as of
September 20, 1996, attached hereto as Exhibit A (the "Original Lease"), between
Investors Life Insurance Company of North America, a Washington corporation, as
landlord, and Sublandlord, as tenant, as amended by (i) First Amendment to Two
Bridge Point Lease Agreement dated as of April 11, 1997, attached hereto as
Exhibit B, (ii) Second Amendment to Two Bridge Point Lease Agreement dated as of
October 13, 1997, attached hereto as Exhibit C, and (iii) Third Amendment to Two
Bridge Point Lease Agreement dated November, 1998, attached hereto as Exhibit D
(the Original Lease, as so modified, is herein called the "Base Lease"). The
Building is now owned by HUB Properties Trust, a Maryland real estate investment
trust ("Owner").
B. Subtenant desires to sublease certain space within the 34,327 Rentable
Square Feet of space leased to Sublandlord as the "Premises" under the Base
Lease. Sublandlord is willing to sublet such space to Subtenant upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, Sublandlord, in consideration of the rent to be paid and
the covenants and agreements to be performed by Subtenant as set forth below,
hereby subleases and demises to Subtenant, and Subtenant takes and accepts, the
following premises on the fourth floor of the Building (the "Subleased
Premises"):
(a) 5,296.11 Rentable Square Feet of space within the Premises shown
as the "Lease Space" on the floor plan attached hereto as Exhibit E (the
"Floor Plan"); and
(b) An undivided one-half interest in the space within the Premises
shown as the "Shared Corridor Space" (herein so called) on the Floor Plan,
which interest shall be deemed a sublease of 97.48 Rentable Square Feet of
space, but shall entitle Subtenant to use the entirety of the Shared
Corridor Space, in common with Sublandlord, for access to and from the
Subleased Premises.
The Subleased Premises are leased by Sublandlord to Subtenant and are
accepted and are to be used and possessed by Subtenant upon the following terms
and conditions:
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1. Definitions. Capitalized terms used in this Sublease without definitions
have the respective meanings assigned to them in the Base Lease.
2. Term. The term of this Sublease shall commence on the date hereof and
shall end November 30, 2001 (the "Expiration Date").
3. Base Rent. Subtenant shall pay to Sublandlord during the term hereof,
without demand and without any setoff or deduction, minimum rental ("Base Rent")
of (i) $11,798.48 per month from the date hereof through and including November
30, 2000, and (ii) $12,697.41 per month from December 1, 2000 through and
including the Expiration Date. Base Rent shall be payable monthly in advance
beginning on the first day of the term hereof and continuing thereafter on the
first day of each calendar month. Should the term of this Sublease commence on a
day other than the first day of a calendar month or terminate on a day other
than the last day of a calendar month, the Base Rent for such partial month
shall be prorated. Each installment of Base Rent shall be paid to Sublandlord at
the address specified in this Sublease or elsewhere as designated from time to
time by written notice from Sublandlord to Subtenant; provided, however, if
Owner wishes to collect Base Rent directly from Subtenant and credit Sublandlord
therefor under the Base Lease, then Subtenant will pay Base Rent directly to
Owner at the address of Owner specified in the Base Lease and will
simultaneously send evidence of such payment to Sublandlord. Owner will not be
considered to have assumed Sublandlord's obligations hereunder by reason of the
acceptance of any payment directly from Subtenant.
4. Additional Rent.
(a) The Base Rent payable by Subtenant shall be increased by an amount
("Additional Rent") equal to Subtenant's Pro Rata Share of the Base Lease
Obligations. For purposes of this Sublease, "Base Lease Obligations" shall
mean the share of Operating Expenses and all other amounts that Sublandlord
is obligated to pay under the Base Lease for the term of this Sublease,
except for Sublandlord's obligation to pay "Base Rent" as specified in
Section 3.01 of the Base Lease. "Subtenant's Pro Rata Share" shall mean (i)
15.71% with respect to all Base Lease Obligations except for charges for
off-hour and nonstandard air conditioning, heating and electricity used in
the Subleased Premises, and except for Base Lease Obligations that become
due because of a default by Sublandlord under the Base Lease, (ii) 100%
with respect to any Base Lease Obligations that become due because of the
use of off-hour and nonstandard air conditioning, heating and electricity
in the Subleased Premises, it being understood that such charges are made
according to Building zones as provided in Article 5 of the Base Lease, and
that the Subleased Premises, except for Offices 447 and 448 as shown on the
Floor Plan, exclusively comprise "Zone 4B" of the Building's HVAC system,
(iii) 100% with respect to any Base Lease Obligations that become due
because of a default by Sublandlord under the Base Lease if such default is
caused by Subtenant's failure to abide by the terms of this Sublease, and
(iv) 0% with respect to any Base Lease Obligations that become due because
of a default by Sublandlord under the Base Lease, if such default is not
caused by Subtenant's failure to abide by the terms of this Sublease.
Sublandlord's failure to pay any amount due under the Base Lease after
Subtenant has failed to pay a corresponding amount under this Sublease will
be considered a default caused by Subtenant's failure to abide by the terms
of this Sublease.
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(b) Payments of Additional Rent which are attributable to Operating
Expenses shall be made by Subtenant to Sublandlord on the first day of the
term hereof and on the first day of each succeeding month throughout the
term, simultaneously with the payment of Base Rent, according to the most
current, Estimated Operating Expenses then payable by Sublandlord to Owner.
Payments of any and all other Additional Rent owing hereunder shall be made
by Subtenant to Sublandlord within 10 days after Subtenant receives an
invoice therefor, provided that Subtenant shall not be required to make any
payment of Additional Rent more than 10 days prior to the date Sublandlord
is required to pay the underlying Base Lease Obligation. Should the term of
this Sublease commence on a day other than the first day of a calendar
month or terminate on a day other than the last day of a calendar month,
the Additional Rent for such partial month shall be prorated. If Owner
wishes to collect Additional Rent directly from Subtenant and credit such
Additional Rent against the underlying Base Lease Obligations owed by
Sublandlord, then Subtenant will pay Additional Rent directly to Owner
within the time periods set out in the Base Lease for payment of such
underlying obligations and will simultaneously send evidence of such
payment to Sublandlord.
(c) Sublandlord shall provide Subtenant with copies of all information
concerning Additional Rent within a reasonable time after it receives such
information from Owner. In the absence of manifest error, any such
information from Owner shall be presumed to be correct as between
Sublandlord and Subtenant. To the extent that Sublandlord makes or is
credited for payments of Base Lease Obligations on the basis of estimates
by Owner (e.g., a payment on the basis of Estimated Operating Expenses),
and Sublandlord shall be required to make an additional payment of Base
Lease Obligations because Owner's estimates are determined to be
understated, then Subtenant shall pay to Sublandlord, within 10 days after
Subtenant receives an invoice therefor, Subtenant's Pro Rata Share of the
excess payment required to be made by Sublandlord. If Sublandlord receives
a refund of or credit for any part of its payments of Base Lease
Obligations because Owner's estimates are determined to have been
overstated, then Subtenant shall receive a refund of or credit for any
Additional Rent paid on account of the previous overpayment of such Base
Lease Obligations.
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5. Security Deposit. Subtenant will pay Sublandlord on the date of this
Sublease a security deposit of $35,395.00 (the "Security Deposit") as security
for the performance of the terms hereof by Subtenant. Subtenant shall not be
entitled to interest thereon and Sublandlord may commingle such Security Deposit
with any other funds of Sublandlord. The Security Deposit shall not be
considered an advance payment of rent or a measure of Sublandlord's damages in
case of default by Subtenant. If a default by Subtenant shall occur under this
Sublease, Sublandlord may, but shall not be required to, from time to time,
without prejudice to any other remedy, use, apply, or retain all or any part of
the Security Deposit for the payment of any rent or any other sum in default or
for the payment of any other amount which Sublandlord may spend or become
obligated to spend by reason of Subtenant's default or to compensate Sublandlord
for any other loss or damage which Sublandlord may suffer by reason of
Subtenant's default, including, without limitation, costs and attorneys' fees
incurred by Sublandlord to recover possession of the Subleased Premises. If
Subtenant shall fully and faithfully perform every provision of this Sublease to
be performed by it, the Security Deposit shall be returned to Subtenant within
30 days after the Expiration Date. Subtenant agrees that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as the
Security Deposit, and that Sublandlord and its successors and assigns shall not
be bound by any such actual or attempted assignment or encumbrance. Regardless
of any assignment of this Sublease by Subtenant, if Subtenant and its assignee
fail to provide evidence satisfactory to Sublandlord of an assignment of the
right to receive the Security Deposit or any part of the balance thereof,
Sublandlord may return the Security Deposit either to the original Subtenant or
to the assignee, without any liability to the other. Following the execution of
this Sublease, Sublandlord and Subtenant shall attempt to agree upon the terms
and conditions of a letter of credit to replace the Security Deposit described
in this Section 5. In the event that Sublandlord and Subtenant are able to agree
upon the terms and conditions of a letter of credit as aforesaid, Sublandlord
shall reimburse Subtenant the full amount of the cash Security Deposit described
in this Section 5 within fifteen (15) days of Sublandlord's receipt of the fully
executed and binding letter of credit. Subtenant shall reimburse Sublandlord for
the reasonable attorneys' fees incurred by Sublandlord to negotiate and review
all drafts of the letter of intent within fifteen (15) days of Subtenant's
receipt of Sublandlord's invoice for any such attorneys' fees.
6. Finish Work. Sublandlord shall perform (or cause to be performed) the
following work (the "Finish Work") as soon as racticable following the date of
this Sublease:
(a) Construct a temporary construction wall in the location shown on
the Floor Plan;
(b) Re-key the entry doors providing access to the Subleased Premises;
and
(c) Construct a common exit corridor within the Shared Corridor Space,
which Sublandlord and Subtenant may use in common for access to and from
the Premises and the Subleased Premises, respectively. Included in the
construction of the Shared Corridor Space shall be the relocation of an
entry door from the Shared Corridor Space to an area that will be outside
of the Shared Corridor Space, the installation of an additional sprinkler
outside of the Shared Corridor Space and the relocation of a security panel
to Sublandlord's new access door. In the event that Subtenant believes that
the bid received by Sublandlord to construct the common exit corridor is
excessive, Subtenant shall have the right to have other contractors bid to
perform substantially the same work and in the event that Subtenant is able
to obtain a bid that is significantly less than that received by
Sublandlord, and the contractor which provided such bid is reasonably
acceptable to Sublandlord (and Owner to the extent required by the Lease),
Sublandlord shall utilize the contractor obtained by Subtenant to construct
the common exit corridor. Upon completion of such exit corridor,
Sublandlord shall remove the temporary construction wall.
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All Finish Work shall be designed and constructed at Subtenant's expense.
Contemporaneously with the execution of this Sublease, Subtenant shall deposit
with Sublandlord (in addition to the Security Deposit) the cash sum of $10,000.
Sublandlord may draw against such deposit to pay the design and construction
costs of the Finish Work. Sublandlord shall provide to Subtenant copies of all
invoices submitted for the Finish Work for which draws are made against the
deposit. If the deposit shall be insufficient to pay all design and construction
costs of the Finish Work, then upon demand from Sublandlord, Subtenant shall
deposit with Sublandlord such additional funds as may be necessary to pay the
excess costs. If the deposit shall exceed the total design and construction
costs of the Finish Work, as calculated upon the completion of the Finish Work,
then Sublandlord shall promptly return the excess to Subtenant. Subtenant
acknowledges that the temporary construction wall will prevent Subtenant's
access to Offices 447 and 448 within the Subleased Premises, as shown on the
Floor Plan. Subtenant agrees that while the temporary construction wall is in
place, Subtenant will access Offices 447 and 448 only under the supervision of
an employee of Sublandlord.
As soon as practicable following the date of this Sublease, Subtenant
shall, at its expense, construct a wiring closet for the Subleased Premises and
install new telecommunications wiring within the Subleased Premises for
Subtenant's telephone and computer systems in accordance with a wiring diagram
that must be pre-approved by Sublandlord. Subtenant shall cause such work to be
performed in a good and workmanlike manner, free of liens, according to all
Building rules and regulations applicable to the work, and utilizing procedures
approved by Sublandlord which will minimize the disturbance of Sublandlord's
operations in the Premises. Subtenant shall reimburse Sublandlord and Owner on
demand for any damage caused to any property of Sublandlord or Owner by such
work, and Subtenant shall indemnify Sublandlord and Owner against any third
party claims arising out of the work. Sublandlord and Owner may each have a
representative present throughout performance of the work.
Upon termination of this Sublease, Sublandlord may elect to restore the
Shared Corridor Space to its condition existing prior to this Sublease and/or
remove from the Subleased Premises the wiring closet and telecommunications
wiring installed hereunder. In such event, Subtenant shall pay to Sublandlord
the cost of such restoration and/or removal within 10 days after receiving an
invoice therefor.
7. Telephone System.
(a) Sublandlord shall allow Subtenant to temporarily utilize
Sublandlord's telephone system until Subtenant establishes its own phone
system as provided in subparagraph (b) below. Throughout the period of such
temporary use, Subtenant will reimburse Sublandlord for all long distance
charges incurred by Subtenant, and will pay to Sublandlord Subtenant's Pro
Rata Share of the telephone charges (other than long distance charges)
billed to Sublandlord by the telephone utility for the operation of the
system.
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(b) No later than December 1, 1999, Subtenant shall establish its own
phone system and account with the telephone utility. If Sublandlord can do
so without interfering with or hampering Sublandlord's existing or future
phone system (the "PBX System"), Sublandlord will allow Subtenant to
install separate trunking cards and/or digital line cards into
Sublandlord's PBX System, in order to set up Subtenant's own phone system.
During the term hereof, Subtenant shall pay Sublandlord a monthly fee equal
to $10.20 per port accessed or installed into or from Sublandlord's PBX
System, as independent consideration for the installation right, in
recognition of costs incurred by Sublandlord to install and maintain the
PBX System. Subtenant shall establish an account directly with the
telephone utility for the payment of Subtenant's phone charges. All
installations that may in any way impact or affect Sublandlord's PBX System
must be pre-approved by Sublandlord and Sublandlord shall have the right
and adequate opportunity to have a representative present during any such
installations. Subtenant shall be solely responsible for all of the costs
associated with the creation or installation of its phone system. No use by
Subtenant of Sublandlord's PBX System shall make Sublandlord a "provider"
of telephone service or otherwise impose any responsibility on Sublandlord
for the quality or continuity of phone service provided to Subtenant, it
being agreed that Subtenant shall look directly to the telephone utility
for resolution of all such issues.
(c) Sublandlord shall allow Subtenant to temporarily utilize up to 10
phone sets while Subtenant is in the process of obtaining its own phone
sets. Subtenant may not utilize Sublandlord's phone sets after December 30,
1999 and shall return to Sublandlord all of such phone sets in the same
condition in which they were received on or before December 30, 1999.
(d) Subtenant shall pay all charges owing by Subtenant to Sublandlord
under this Section 7 within 10 days after receiving an invoice therefor.
8. Acceptance of Subleased Premises. Prior to Subtenant's occupancy of the
Subleased Premises, Sublandlord shall clean the Subleased Premises in accordance
with its customary cleaning procedures for the Premises. Otherwise, Subtenant
hereby (i) accepts the Subleased Premises as suitable for the purposes for which
same are leased, without the need for any additional improvements to be
constructed therein other than the Finish Work; (ii) accepts the Subleased
Premises and each and every part and appurtenance thereof as being in a good and
satisfactory condition, subject to completion of the Finish Work; and (iii)
waives any defects in the Subleased Premises and its appurtenances, other than
defects discovered in the Finish Work. Sublandlord shall not be liable to
Subtenant or any of its agents, employees, licensees, servants, or invitees for
any injury or damage to person or property caused in whole or in part by the
condition or design or by any defect in the Subleased Premises or its systems
and equipment, and Subtenant, with respect to itself and its agents, employees,
licensees, servants, and invitees, hereby expressly assumes all risks of injury
or damage to person or property, either proximate or remote, by reason of the
condition of the Subleased Premises. Notwithstanding any provision in the Base
Lease to the contrary, neither Sublandlord nor Owner shall have any obligation
to construct any leasehold improvements to the Subleased Premises other than the
Finish Work. Subtenant may not make or allow to be made any alterations,
installations, additions or improvements in or to the Subleased Premises, or
place safes, vaults or other heavy furniture or equipment within the Leased
Premises, without the prior written consent of Sublandlord and Owner.
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9. Parking. Subtenant may use the parking facilities of the Building,
subject to Owner's rules and regulations therefor, at a ratio not to exceed one
parking space per [279] Rentable Square Feet within the Subleased Premises.
Subtenant shall not have the right to lease any executive parking spaces beneath
the Building, notwithstanding Section 15.19 of the Base Lease, it being
understood that any such arrangement shall be negotiated directly between
Subtenant and Owner.
10. After-Hours Service. Subtenant acknowledges that Offices 447 and 448
within the Subleased Premises (as shown on the Floor Plan) fall outside the
Building zone applicable to the remainder of the Subleased Premises for air
conditioning and heating service (as set forth in Section 4(a) above). Without
Sublandlord's prior, written consent, Subtenant shall not attempt to secure air
conditioning or heating for Office 447 or 448 before or after normal Building
hours.
11. Security. Sublandlord shall program its security system to allow
Subtenant's employees to separately access the Subleased Space with security
cards issued by Sublandlord. Subtenant shall reimburse Sublandlord for
Subtenant's Pro Rata Share of the costs incurred by Sublandlord to maintain and
operate the security system. Such reimbursement shall be paid to Sublandlord
from time to time within 10 days after Subtenant's receipt of an invoice
therefor.
12. Compliance with Base Lease. Subtenant agrees to comply with and abide
by all terms and provisions of the Base Lease (except for the payment of rent),
and to perform and assume all of Sublandlord's obligations under the Base Lease,
insofar (but only insofar) as such terms, provisions and obligations relate to
the Subleased Premises and to the term of this Sublease. Subtenant shall not
commit any act that would constitute a default under the Base Lease. Subtenant's
obligation under this paragraph shall be enforceable both by Owner and
Sublandlord. Subtenant agrees that with respect to the Subleased Premises,
Sublandlord shall have all rights as against Subtenant that Owner has as against
Sublandlord under the Base Lease. Such rights of Sublandlord include (but are
not limited to) (i) the right to receive any notices that Owner is entitled to
receive under the Base Lease, (ii) the right to require that Subtenant obtain
Sublandlord's consent in any and all circumstances that require the consent of
Owner under the Base Lease, including without limitation consent to any
assignment of this Sublease by Subtenant or any further sublease of the
Subleased Premises, and (iii) the right to be indemnified by Subtenant against
certain damages, costs and expenses as if the indemnity provisions under the
Base Lease applied to Subtenant and Sublandlord instead of Sublandlord and
Owner, respectively, and to the Subleased Premises instead of the entire
Premises covered by the Base Lease. Such rights also include the right to act
upon a default hereunder by Subtenant in the same manner that Owner might act
upon a comparable default by Sublandlord under the Base Lease, it being agreed
that Subtenant shall be in default under this Sublease if Subtenant acts or
fails to act in a manner which would constitute a "Default" under the Base Lease
were Sublandlord to have engaged in a comparable act or failure under the Base
Lease. In addition, if Subtenant should fail to fully perform its obligations
hereunder, Sublandlord shall have the right to perform such obligations on
behalf of Subtenant and to charge Subtenant all costs thereof, whether or not
Owner could similarly perform such obligations on behalf of Sublandlord under
the Base Lease. Subtenant agrees to notify Sublandlord immediately of any claim
by Owner that the Base Lease has been breached with respect to the Subleased
Premises. The rights of Sublandlord and obligations of Subtenant set out in the
other provisions of this Sublease shall supplement, not be in lieu of, the
rights of Sublandlord and obligations of Subtenant under this paragraph.
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13. Services. Subtenant acknowledges and agrees that the only services,
amenities and rights to which Subtenant is entitled under this Sublease are
those to which Sublandlord is entitled under the Base Lease (subject to the
restrictions and conditions imposed under the Base Lease). Sublandlord shall not
be liable to Subtenant for Owner's failure to provide any such services,
amenities or rights, nor shall such failure be construed as a breach hereof by
Sublandlord or an eviction of Subtenant or entitle Subtenant to an abatement of
any of the rent under this Sublease, except to the extent that Sublandlord is
entitled to treat the failure as an eviction or to receive an abatement under
the Base Lease with respect thereto. Paragraph 7 of the Consent to Sublease
referred to in Section 26 below authorizes Subtenant to obtain "services and
materials" related to the Subleased Premises. Subtenant agrees it has no need to
acquire services or materials from Sublandlord or Owner beyond those expressly
set forth in this Lease. Subtenant will not seek to acquire any such services or
materials from Owner without the prior, written consent of Sublandlord, and
Sublandlord may condition its consent on the deposit by Subtenant with
Sublandlord (for payment to Owner) of all costs of the services or materials.
14. No Implied Waiver. The failure of Sublandlord to insist at any time
upon the strict performance of any covenant or agreement or to exercise any
option, right, power or remedy contained in this Sublease shall not be construed
as a waiver thereof. The waiver of any violation of any term, covenant,
agreement or condition contained in this Sublease shall not prevent a subsequent
act, which would have originally constituted a violation, from having all the
force and effect of an original violation. No express waiver shall affect any
condition other than the one specified in such waiver and that one only for the
time and in the manner specifically stated. A receipt by Sublandlord of any rent
with knowledge of the breach of any covenant or agreement contained in this
Sublease shall not be deemed a waiver of such breach, and no waiver by
Sublandlord of any provision of this Sublease shall be deemed to have been made
unless expressed in writing and signed by Sublandlord.
15. Attorneys' Fees and Legal Expenses. Should either party hereto
institute any action or proceeding in court to enforce any provision hereof or
for damages by reason of any alleged breach of any provision of this Sublease or
for any other judicial remedy, the prevailing party shall be entitled to receive
from the losing party all reasonable attorneys' fees and all court costs in
connection with such proceeding.
16. Subordination. This Sublease and all rights of Subtenant hereunder are
subject and subordinate to (i) the Base Lease, and (ii) any mortgage or deed of
trust, blanket or otherwise, which now or may hereafter affect the Subleased
Premises.
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17. Quiet Enjoyment. Provided Subtenant pays the rent payable under this
Sublease as and when due and payable and keeps and fulfills all of the terms,
covenants, agreements and conditions to be performed by Subtenant hereunder,
neither Sublandlord nor any person lawfully claiming by, through or under
Sublandlord shall disturb Subtenant's peaceable and quiet enjoyment of the
Subleased Premises during the term of this Sublease, but Subtenant's right to
such enjoyment is expressly subject and subordinate to the restrictions,
requirements, and conditions of the Base Lease and of any deeds of trust or
mortgages which are superior to this Sublease, as hereinabove set forth. No
warranties, express or implied, are made by Sublandlord as to title to the
Subleased Premises except as expressly set out in this paragraph.
18. Notices. Each provision of this Sublease, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing, or delivery of any notice or with reference
to the making of any payment by Subtenant to Sublandlord, shall be deemed to be
complied with when and if the following instructions are complied with:
(a) All rent and other payments required to be made by Subtenant to
Sublandlord hereunder shall be payable to Sublandlord at the address set
forth below, or at such other address as Sublandlord may specify from time
to time by written notice delivered in accordance herewith.
(b) Any notice or communication required or permitted hereunder shall
be given in writing, sent by (i) personal delivery, or (ii) expedited
delivery service with proof of delivery, or (iii) prepaid facsimile or (iv)
United States mail, postage prepaid, registered or certified mail,
addressed as follows:
To Sublandlord:
Brigham Oil & Gas, L.P.
6300 Bridgepoint Parkway
Building 2, Suite 500
Austin, Texas 78730
Attn: David Brigham
Fax: (512) 427-3393
To Subtenant:
ShowSupport.com, Inc.
6300 Bridge Point Parkway
Building 2, Suite 450
Austin, Texas 78730
Attn: Mr. Vinay Bhagat
Fax:_____________________
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or to such other address or to the attention of such other person as
hereafter shall be designated in writing by the applicable party sent in
accordance herewith. Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein or, in the case of facsimile,
upon receipt.
19. Real Estate Commissions. Sublandlord has agreed to pay to Colliers
Oxford Commercial, Inc. ("Agent") a commission for negotiating this Sublease
pursuant to a separate agreement with the Agent. Under that agreement, the Agent
will share the commission with CB Richard Ellis, Inc., as cooperating agent.
Except as set forth in the preceding two sentences, each party represents that
it has not authorized any broker or finder to act on its behalf in connection
with this Sublease and that it has not dealt with any broker or finder
purporting to act on behalf of any other party. Each party agrees to defend,
indemnify and hold harmless the other from and against any and all claims,
losses, damages, costs or expenses (including reasonable attorney's fees)
arising out of or resulting from any agreement, arrangement or understanding
alleged to have been made by such party or on its behalf with any broker or
finder in connection with this Sublease or the transaction contemplated hereby.
20. Severability. If any term or provision of this Sublease or the
application thereof to any person or circumstances shall be to any extent
invalid and unenforceable, the remainder of this Sublease, or the application of
such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby.
21. No Representations. Sublandlord and Sublandlord's agents have made no
representations or promises with respect to the Subleased Premises except as
herein expressly set forth and no rights, easements, or licenses are acquired by
Subtenant by implication or otherwise except as expressly set forth in the
provisions of this Sublease.
22. Entire Agreement. This Sublease sets forth the entire agreement between
the parties and no amendment or modification of this Sublease shall be binding
or valid unless expressed in a writing executed by both parties hereto. Any and
all agreements, written or oral, entered by the parties prior to the date of
this Sublease are merged into, and superseded by, this Sublease.
23. Paragraph Headings. The paragraph headings contained in this Sublease
are for convenience only and shall in no way enlarge or limit the scope or
meaning of the various paragraphs hereof.
24. Binding Effect. All of the covenants, agreements, terms, and conditions
to be observed and performed by the parties hereto shall be applicable to and
binding upon their respective heirs, personal representatives, successors and,
to the extent assignment is permitted hereunder, their respective assigns.
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25. Options. Notwithstanding any provision in the Base Lease to the
contrary, Subtenant shall have no right to exercise any renewal, extension,
expansion, right of first refusal, cancellation or other similar option or right
afforded to Sublandlord under the Base Lease.
26. Contingency. This Sublease is contingent upon Owner's consent and
approval, which is to be evidenced by the signature of Owner to a Consent to
Sublease on a form prepared by Owner and reasonably acceptable to Sublandlord
and Subtenant. Contemporaneously with the execution of this Sublease,
Sublandlord and Subtenant shall execute such Consent to Sublease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
as of the date first above written. BRIGHAM OIL & GAS, L.P.
By: Brigham, Inc., a Texas corporation,
Managing General Partner
By: /s/ David T. Brigham
Name: David T. Brigham
Title: Vice President
SHOWSUPPORT.COM, INC.
By: /s/ Vinay Bhagat
Name: Vinay Bhagat
Title: President & CEO
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