Exhibit 10.41
SUBLEASE
THIS AGREEMENT, made the 14th of September, 1999, between INTERNATIONAL
BUSINESS MACHINES CORPORATION, a New York corporation, having its principal
office at Xxx Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, hereinafter called
"Sublessor" and MINDSPRING ENTERPRISES, with an office at 0000 Xxxx Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, hereinafter called "Subtenant".
WITNESSETH:
WHEREAS, by lease dated September 28, 1983, as amended by First Amendment
to Lease dated March 3, 1984, Second Amendment to Lease dated December 31, 1987,
Third Amendment to Lease dated November 20, 1992 and Fourth Amendment to Lease
dated February 16, 1996 (the lease and all amendments thereto together called
the "Prime Lease"), Sublessor leases from Park West E-3 Associates, a Texas
joint venture (the "Prime Lessor"), approximately 187,237 square feet of
rentable area in the building known as 0000 XXX Xxxxxxx (Xxxx Xxxx), Xxxxxxx
Xxxxxx, Xxxxx (the "Building"); and
WHEREAS, Subtenant desires to sublease approximately 20,602 square feet of
rentable area on the entire second floor from Sublessor.
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration and of the mutual agreements hereinafter set
forth, Sublessor and Subtenant stipulate, covenant and agree as follows:
Premises 1. Sublessor hereby subleases to Subtenant a portion of the Building
consisting of approximately 20,602 square feet of rentable area
on the entire second floor (the "Premises") as outlined on
EXHIBIT A, attached hereto and made a part hereof, in the
Building.
Term 2. The term for the Premises shall commence on October 1, 1999 and
expire on September 29, 2002 (the "Term"). Subtenant shall be
granted access to the Premises ten (10) business days after the
mutual execution of the Sublease by Sublessor and Subtenant.
Uses 3. Subtenant shall use and occupy the Premises for executive and
administrative purposes only and for no other purpose.
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Rents and 4. (A) (1) Subtenant shall pay Sublessor the annual rent of
Additional Rent Three Hundred Thirty-Nine Thousand Nine Hundred Thirty-Three
and 00/100 Dollars ($339,933.00), payable in equal monthly
installments of Twenty-Eight Thousand Three Hundred
Twenty-Seven and 75/100 Dollars ($28,327.75) in advance on
the first day of each month during the term of this Sublease
without deduction, set off or demand. Rent for any portion
of a month shall be prorated on a thirty (30) day basis.
Rent payments will be delivered to Scribcor, Inc., as agent
for IBM Lease Administration, X.X. Xxx 000000, Xxxxxxx,
Xxxxxxxx 00000-0000, or such other place as Sublessor may
designate in writing.
(2) The annual rent set forth in paragraph (a) above is
Sixteen and 50/100 Dollars ($16.50) per square foot of
rentable area.
(B) During the Term, Subtenant shall pay as additional rent
Subtenant's pro rata share (hereinafter defined) of any
increases in operating expenses incurred from and after
December 31, 1999 which are due under Addendum No. 1 of the
Prime Lease. Subtenant's pro rata share is eleven percent
(11%), which is the ratio that 20,602 square feet of
rentable area of the Premises bears to 187,237 square feet
of rentable area in the Building. Sublessor shall furnish
Subtenant with a true copy of the statement of operating
expenses, delivered by Prime Lessor to Sublessor pursuant to
the Prime Lease and include thereon a detailed statement of
Subtenant's pro rata share of any increase in operating
expenses. Subtenant shall reimburse Sublessor within thirty
(30) days after the operating expense statement is furnished
to Subtenant.
Preparation for 5. Subtenant shall accept the Premises in its then "as is"
Occupancy condition, "broom clean," and all of the Sublessor's
furniture, fixtures, equipment, and other personal property
shall be removed therefrom at Sublessor's expense prior to
Subtenant's access to the Premises. Subtenant shall have the
right to enter and retrofit the Premises ten (10) business
days after the mutual execution of the Sublease by Sublessor
and
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Subtenant. Sublessor shall not be required to perform work
of any kind of nature, and all such work and the performance
thereof shall be subject to the provisions of the Sublease
and of the Prime Lease, as more particularly described in
the Prime Lease within Article Six, "Improvements and
Alterations." Additionally, Subtenant shall not allow its
contractors to perform construction and/or demolition work
that is noisy or otherwise disruptive to the other tenants
in the Building during the Building's normal business hours.
Incorporation 6. (a) This Sublease is subject to all of the terms of the
of Prime Lease Prime Lease with the same force and effect as if fully set
forth herein at length, excepting only as otherwise
specifically provided herein. All of the terms with which
Sublessor is bound to comply under the Prime Lease shall, to
the extent only that they apply to the Premises and except
as otherwise provided herein, be binding upon Subtenant, and
all of the obligations of Prime Lessor set forth in the
Prime Lease shall, to the extent that they apply to the
Premises, inure to Subtenant's benefit. It is the intention
of the parties that, except as otherwise provided in this
Sublease, the relationship between Sublessor and Subtenant
shall be governed by the language of the various articles of
the Prime Lease as if they were typed out in this Sublease
in full, and the words "Landlord", "Tenant" and "Lease" as
used in the Prime Lease, shall read, respectively,
"Sublessor", "Subtenant" and "Sublease".
(b) For the purposes of this Sublease, the following
provisions of the Prime Lease are hereby deleted or modified
as follows:
Delete in its entirety "Premises"; "Term"; Addendum
No. 1; Article Two, titled "Preparation for
Occupancy"; Article Thirteen, titled "Signs"; Article
Thirty-One, titled "First Refusal -- Additional
Space"; Rider 4, titled "Extension"; Article
Thirty-Two, titled "Option for Additional Space";
Article Twenty-Eight, titled "First Refusal Sale"; and
Article Twenty-Five, titled "Memorandum of Lease."
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Quiet Enjoyment 7. (a) Sublessor covenants and agrees with Subtenant that upon
Subtenant paying the rent and additional rent reserved in
this Sublease and observing and performing all of the other
obligations, terms, covenants and conditions of this
Sublease on Subtenant's part to be observed and performed,
Subtenant may peaceably and quietly enjoy the Premises
during the term; provided, however, that this Sublease shall
automatically terminate upon termination of the Prime Lease
and Subtenant shall have no claim against Sublessor unless
such termination was caused by the default of Sublessor in
the performance of its obligations under the Prime Lease
which have been assumed by Sublessor under this Sublease and
have not been assumed by Subtenant hereunder.
(b) Subtenant covenants and agrees that Subtenant shall not
do or suffer or permit anything to be done which would
constitute a default under the Prime Lease or would cause
the Prime Lease to be cancelled, terminated or forfeited by
virtue of any rights of cancellation, termination, or
forfeiture reserved or vested in Prime Lessor under the
Prime Lease, and that Subtenant will indemnify and hold
harmless Sublessor from and defend Sublessor against all
claims, liabilities, losses and damages of any kind
whatsoever (excepting indirect, special and consequential
damages) that Sublessor may incur by reason of, resulting
from or arising out of any such cancellation, termination or
forfeiture.
Notices 8. Any notice, approval, demand or request under this Sublease
shall be in writing and shall be considered properly
delivered when addressed as hereinafter provided and
delivered by registered or certified mail (return receipt
requested) which is deposited in the United States general
or branch post office, or delivered by private express mail
service. Any notice, demand or request by Sublessor to
Subtenant shall be addressed to Subtenant at MINDSPRING
ENTERPRISES, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, attention: General Counsel, with a copy sent
simultaneously to MINDSPRING ENTERPRISES, 0000 Xxxx
Xxxxxxxxx
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Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, attention: Xxx
Xxxxxxx, Director of Real Estate, until otherwise
directed in writing by Subtenant. Any notice, demand or
request by Subtenant to Sublessor shall be addressed to
INTERNATIONAL BUSINESS MACHINES CORPORATION, Real Estate
Services, 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Program Manager, with a copy sent
simultaneously to INTERNATIONAL BUSINESS MACHINES
CORPORATION, Real Estate Services, Xxx Xxxxxxx Xxxx,
Xxxxxx, Xxx Xxxx 00000, Attention: Associate General
Counsel, until otherwise directed in writing by
Subtenant. Rejection or other refusal to accept or the
inability to deliver because of a changed address of
which no notice was given shall be deemed to be receipt
of the notice, demand or request sent.
Assignment and 9. Subtenant shall not assign, mortgage, transfer, pledge or
Subletting otherwise encumber its interest in this Sublease, in whole
or in part, or sublet or permit the subletting of the
Premises, or permit the Premises or any part thereof to be
occupied or used by any person or entity other than
Subtenant, in each case without first obtaining the prior
written consent of Sublessor, which consent Sublessor may
withhold in its sole discretion. As used in this Sublease
the word "Person" shall mean an individual, partnership,
trust, corporation, firm or other entity.
Prime Lessor's 10. Subtenant recognizes that SubLessor is not in a position to
Responsibilities furnish the services set forth in the Prime Lease, obtain an
agreement of nondisturbance, or how to perform certain other
obligations which are not within the control of Sublessor,
such as, without limitation, maintenance, repairs, and
replacements to the Building and Premises, compliance with
laws, and restoration of the Premises and Building after
casualty or condemnation. Therefore, notwithstanding
anything to the contrary contained in this Sublease,
Subtenant agrees that Subtenant shall look solely to Prime
Lessor to furnish all services and to perform all
obligations which Prime Lessor has agreed to perform and
observe under the Prime Lease. Sublessor shall not be liable
to
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Subtenant or be deemed in default hereunder for failure of
Prime Lessor to furnish or perform the same. However,
whenever under the terms of the Prime Lease, Prime Lessor
shall fail to perform any of its Prime Lease obligations
pertaining to the Premises, Subtenant may, at its option,
enforce performance thereof if and to the extent authorized
by the terms of the Prime Lease, and Sublessor shall
cooperate with Subtenant in such enforcement. However,
Sublessor shall not be obligated to initiate any arbitration
or legal proceeding or otherwise to enforce the Prime Lease.
Casualty and 11. Article Nine, titled "Casualty" and Article Eleven, titled
Condemnation "Condemnation", of the Prime Lease are modified to provide
that if by operation of either of these two Articles the
Prime Lease is not terminated and continues in full force
and effect, this Sublease shall not be terminated but shall
also continue in full force and effect, except that until
the Premises are restored in accordance with these two
Articles there shall be a proportionate abatement of annual
rent and additional rent payable hereunder to the extent of
damage to the Premises as determined by Prime Lessor,
Sublessor and Subtenant; provided, however, that such
abatement shall in no event exceed the abatement granted to
Sublessor under the Prime Lease for the Premises and,
provided further, that no compensation or claim or reduction
will be allowed or paid by Sublessor by reason of
inconvenience, annoyance or injury to Subtenant's business
arising from the necessity of effecting repairs to the
Premises or any portion of the Building, whether such
repairs are required by operation of these two Articles or
any other provision of the Prime Lease.
Parking 12. Sublessor shall, without charge to Subtenant, provide
Subtenant sixty-two (62) permits for parking spaces for the
access-controlled portion of the Parking Facilities on an
unassigned basis throughout the term of the Sublease.
Subtenant shall have access to the Parking Facilities
twenty-four (24) hours a day, seven (7) days a week.
In the event that the number of parked cars at a
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given time as determined by Sublessor or its agents exceed
the capacity of the Parking Facilities (see EXHIBIT C)
available for use by Sublessor and Subtenant which capacity
is defined as 95% of the portion of the Parking Facilities
associated with the 1605 and 1607 Buildings (624 spaces out
of 731 total spaces), Sublessor will notify Subtenant of the
condition in writing. Within ten business days of receiving
notification from the Sublessor, Subtenant will secure and
utilize additional off-site parking in a quantity sufficient
to accommodate its housed population in excess of sixty-two
parking spaces allocated to the Subtenant under this
Sublease. If supplemental parking is not available,
Subtenant acknowledges that Subtenant's housed population in
the subleased Premises will be reduced to use no more than
sixty-two parking spaces in the Parking Facilities allocated
in accordance with this Sublease. Subtenant shall
immediately notify Sublessor in writing of Subtenant's total
housed population within the subleased Premises as of the
date of Sublessor's notice.
Subtenant shall promptly provide Sublessor written
notification from the third party with which the Subtenant
has contracted for its off-site parking that such parking
accommodations have been leased and are being utilized by
Subtenant. In addition to the foregoing, Sublessor may also
impose on Subtenant any parking restrictions imposed by
Landlord on Sublessor.
Binding and 13. This Sublease shall be binding on Subtenant and its heirs
Entire Agreement and executors, and on the respective legal representatives,
successors and assigns of the parties. This Sublease
contains the entire agreement of the parties with respect to
the subject matter herein and may not be modified except by
instrument in writing which is signed by both parties.
Broker 14. Subtenant warrants and represents to Sublessor that no
Person has negotiated or brought about this transaction on
its behalf other than The Staubach Company ("Broker") and
Sublessor covenants and agrees to pay a brokerage commission
to Broker in
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accordance with the provisions of a separate agreement.
Subtenant shall defend, indemnify and save harmless
Sublessor from and against any claim which may be asserted
against Sublessor by any Person other than Broker if (a)
the claim is made in connection with this transaction and
(b) Subtenant employed or dealt with the claiming Person.
Subtenant shall reimburse Sublessor for reasonable
expenses, losses, costs and damages (including reasonable
attorneys' fees and court costs if Subtenant fails or
refuses to defend as herein required) incurred by
Sublessor in connection with such claims. This Article
shall survive the expiration or earlier termination of
this Sublease.
Loading Dock 15. Subtenant shall be granted shared access to the Building
Loading Dock.
Data/Voice 16. Sublessor shall retain a data/voice room as designated on
Room the attached plan labeled EXHIBIT B and incorporated
herein. Subtenant shall provide escorted access to the
data/voice room during normal business hours and with
reasonable advance notice. If Sublessor requires extended
access to the data/voice room, Sublessor shall arrange for
a security guard to accompany Sublessor at Sublessor's
expense.
Twenty-Four (24) 17. Subtenant shall have access to the Premises twenty-four
Hour Access (24) hours a day, seven (7) days a week.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Sublease as of the day and year first above written.
INTERNATIONAL BUSINESS MACHINES
WITNESS: CORPORATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------ ------------------------------
Xxxxx Xxxxxxxx
Title: Program Manager
WITNESS: MINDSPRING ENTERPRISES
/s/ Xxxxxxxx Xxxxxxx By: /s/ M. T. Xxxxx
------------------------------ ------------------------------
Title: Ex. Director
Corporate Services
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