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EXHIBIT 10.1
SUBLEASE
THIS SUBLEASE is entered into as of the 8th day of May, 2000, between
ROSEWOOD RESOURCES, INC., a Delaware corporation ("Sublessor"), and ZIXIT
CORPORATION, a Texas corporation ("Sublessee").
INTRODUCTORY PROVISIONS
A. 7-Eleven, Inc., formerly known as The Southland Corporation, a
Texas corporation, as landlord ("Landlord"), and Sublessor, as tenant, executed
an Office Lease Agreement (the "Lease") dated May 19, 1998, covering
approximately 29,551 rentable square feet of space located on the twenty-eighth
floor of Cityplace Center East Tower (the "Building") located in Dallas, Texas,
as more particularly described therein (the "Premises"). A copy of the Lease is
attached hereto as Exhibit A and incorporated herein by reference. All undefined
capitalized terms used in this Sublease have the meaning given to them in the
Lease.
B. Landlord is the owner of the tenant's leasehold estate under the
Amended and Restated Lease Agreement dated December 21, 1990, between Cityplace
Center East Corporation, as owner of the Building ("Owner"), and Landlord, as
tenant, with respect to the premises that include the entire Building and the
Property.
C. Sublessee desires to sublease a portion of the Premises, and
Sublessor desires to sublease such space to Sublessee.
D. The parties hereto desire to enter into a sublease agreement
defining all of the rights, duties and liabilities of the parties hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
I. SUBLEASE PREMISES AND BASIC UNDERTAKINGS
Subject to the terms and conditions of the Lease, Sublessor hereby
subleases to Sublessee that portion of the Premises comprised of approximately
9,427 square feet of Rentable Area, as more fully described on Exhibit B
attached hereto and made a part hereof for all purposes (the "Sublease
Premises"). The Sublease Premises are leased to Sublessee and Sublessee accepts
the Sublease Premises in their "AS IS" condition, and Sublessor makes no
representations or warranties whatsoever with respect thereto or to any
equipment located therein. In addition, Sublessor grants to Sublessee the
license to utilize, with Sublessor, the elevator lobby and restrooms located on
the twenty-eighth floor of the Building (the "Common Areas"). The Common Areas
are licensed to Sublessee and Sublessee accepts the Common Areas in their "AS
IS" condition, and Sublessor makes no representations or warranties whatsoever
with respect thereto or to any equipment located therein.
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2. PURPOSE OF SUBLEASE
The Sublease Premises demised under this Sublease are to be used by
Sublessee solely for the purposes of general and executive offices for
Sublessee's business, and for no other purpose without the written consent of
Sublessor and Landlord.
3. TERM
The term of this Sublease (the "Sublease Term") shall commence upon the
full execution hereof and shall expire on September 30, 2004, unless terminated
earlier by breach of the terms and conditions of this Sublease or as otherwise
provided herein. Sublessor shall deliver possession of the Sublease Premises to
Sublessee upon the full execution hereof. If Sublessor receives from Landlord
written notice of cancellation of the Lease as provided in Section 2.7 thereof,
Sublessor shall so notify Sublessee in writing within fourteen (14) days after
Sublessor's receipt of Lessor's cancellation notice, and this Sublease will
terminate on September 30, 2002 (the "Termination Date"). In such event, neither
party shall have any liability to the other for such termination (other than
amounts outstanding under this Sublease); provided, however, all indemnities and
all provisions contained in this Sublease with respect to liability insurance
coverage by Sublessee shall survive the termination of this Sublease with
respect to any and all matters which shall have accrued before the Termination
Date.
4. RENTAL
Sublessee shall pay to Sublessor, without notice, demand or setoff,
during the Sublease Term rental (the "Basic Rental") in the amount of
$197,967.00 per annum ($16,497.25 per month) in months two through forty-one. In
months forty-two through fifty-three, the amount of Basic Rental shall be
$228,321.94 per annum ($19,026.83 per month). The Basic Rental shall be payable
monthly in advance. The first month's Basic Rental payment shall be due on June
1, 2000 (the first day of month two of the Sublease Term). All subsequent
monthly installments of rental payable under this Sublease will be due on the
first day of each calendar month until the expiration of this Sublease. All such
rentals, unless otherwise directed, shall be payable to:
Rosewood Resources, Inc.
Cityplace Center East
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Lock Box 22
Dallas, Texas 75201-2944
Attention: Xxxxxx X. Xxxxxxx
Vice President
or to any other such place as Sublessor may from time to time designate in
writing.
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5. PARKING CARDS
Sublessor shall use its best efforts to obtain for Sublessee the right
to utilize twenty-eight (28) nonreserved parking spaces in the Building garage
(the "Garage") from Sublessor's allotment of spaces under the Lease. On the date
hereof, Landlord provides parking in the Garage free-of-charge. In the event
Landlord shall in the future require Sublessor to pay a fee for parking,
Sublessee shall pay to Sublessor, in advance, on the first day of each calendar
month during the term hereof, the cost of the parking cards obtained by
Sublessor at the request of Sublessee.
6. ADDITIONAL RENT
If Sublessor shall be charged for additional rent or other sums
pursuant to the provisions of the Lease, Sublessee shall be liable for its pro
rata share, based on the Rentable Area of the Sublease Premises (9,427 square
feet) divided by the Rentable Area of the Premises (29,551 square feet), of such
additional rent or sums, which shall be payable in the same manner and upon the
same terms and conditions as the Basic Rental reserved hereunder except as set
forth herein to the contrary. However, if any such rent or sums shall be the
result of additional use by Sublessee of electrical current pursuant to Section
3.3 of the Lease, such excess shall be paid in its entirety by Sublessee. If
Sublessee shall procure any additional services from the Building, such as
alterations or after-hours air conditioning, Sublessee shall pay for same at the
rates charged therefor by Landlord and shall make such payment to Sublessor or
Landlord, as Sublessor shall direct. Sublessor shall provide Sublessee with any
documentation in Sublessor's possession substantiating such additional rent,
including without limitation a copy of the annual reconciliation provided by
Landlord pursuant to the Lease. With respect to Basic Rental or additional rent
paid or payable during the Sublease Term, so long as Sublessee is not in default
under the Lease or this Sublease, Sublessee shall be entitled to a pro rata
share of any refund or abatement of Basic Rental or additional rent received by
Sublessor pursuant to the Lease.
7. LIABILITY INSURANCE
Owner, Landlord and Sublessor shall not be liable for and Sublessee
waives all claims for damages sustained by Sublessee or any person claiming
through Sublessee resulting from any accident or occurrence in or upon the
Sublease Premises or any other part of the Building. Sublessee's waiver shall
apply to claims resulting from damaged fixtures, walls, windows, ceiling or
other parts of the Building or Sublease Premises, whether or not Landlord or
Sublessor may have any obligation under the Lease or this Sublease to repair or
maintain such item. Sublessee shall defend, hold harmless and indemnify Owner,
Landlord and Sublessor against any and all claims, actions, damages, liability
and expense in connection with loss, damage or injury to persons or property
occurring in, on or about or arising out of the Sublease Premises, or the use or
occupancy thereof, or the conduct or operation of Sublessee's business, or
occasioned wholly or in part by any act or negligence of Sublessee or its
agents, contractors or employees. Sublessee's indemnity under this paragraph is
subject to Sublessor's waiver of recovery set forth below. Sublessee agrees that
any increase in insurance premiums of Owner, Landlord or Sublessor caused by any
activity of Sublessee shall be borne by Sublessee and payable upon demand.
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Sublessor shall defend, hold harmless and indemnify Sublessee against
any and all claims, actions, damages, liability and expense resulting to any
extent from the violation or nonperformance of any provisions of this Sublease
by Sublessor, its agents or employees or related in any way to any damage or
injury to persons or property caused to any extent by the noncompliance with or
violation of any law or ordinance or by any act or negligence of Sublessor.
Sublessor's indemnity under this paragraph is subject to Sublessee's waiver of
recovery set forth below.
Sublessor, Sublessee and all parties claiming under them each mutually
release and discharge each other from all claims and liabilities arising from or
caused by fire or other casualty or hazard which could be covered by fire and
extended coverage or all-risk property insurance in respect of the Sublease
Premises and the personal property owned by them therein, or in connection with
activities conducted in the Sublease Premises or in the Building, no matter how
caused, including negligence, and each waives any right of recovery which might
otherwise exist on account thereof. The waivers contained in this paragraph are
effective regardless of the amount of any deductible under any policy of
insurance and regardless of whether any such policy of insurance is actually
maintained by Sublessor or Sublessee.
Sublessee shall maintain at its expense liability insurance, with an
insurer reasonably acceptable to Sublessor, to protect it as well as Owner,
Landlord and Sublessor from claims for damages for bodily injury, including
death, and for property damage, which may arise from or out of Sublessee's use
or operations under this Sublease. Sublessee agrees that such insurance shall
include commercial general liability insurance against bodily injury including
death resulting therefrom, to the combined single limits of $1,000,000 to one or
more than one person as the result of one accident or occurrence and against
property damage.
Upon execution of this Sublease and thereafter at least fifteen (15)
business days prior to the expiration of Sublessee's insurance coverage, (a) a
duly executed XXXXX 25-S (or its successor) form certificate of insurance and
(b) Form CG 2026 1185 (or its successor) endorsement showing compliance with the
foregoing requirements shall be furnished by Sublessee to Sublessor. Said
certificate shall name Owner, Landlord and Sublessor as additional insureds and
state that the insurer under the policy or policies will not cancel or alter the
policy or policies without at least fifteen (15) business days prior written
notice to Sublessor. Any failure to provide insurance as required herein, and
the continuance of such failure for ten (10) days after written notice from
Sublessor to Sublessee, will be considered an event of default and be subject to
all rights and remedies available to Sublessor, in its sole discretion, under
this Sublease.
8. CASUALTY DAMAGE OR INJURY
If the Property, the Premises or the Sublease Premises shall be damaged
or destroyed by fire or other casualty or if all or part of the Property, the
Premises or the Sublease Premises shall be taken by power of eminent domain to
such an extent as to render the Sublease Premises untenantable in whole or in
part, the rent shall be abated in the same proportion that the portion of the
Sublease Premises rendered unfit for occupancy by Sublessee shall bear to the
whole of the Sublease Premises. If the damage or taking reasonably precludes
occupancy of any
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substantial part of the Sublease Premises and if the estimated repair time to
restore that part of the Sublease Premises to a condition that reasonably
permits occupancy will extend beyond six (6) months after the date of the
casualty or taking, Sublessee may elect to terminate this Sublease by so
notifying Sublessor within ten (10) days after receipt from Sublessor of
Landlord's decision not to terminate the Lease. If the Lease shall be terminated
as a consequence of such damage, destruction or taking, this Sublease shall
terminate. Sublessee shall maintain and keep in full force fire and extended
coverage insurance on its personal property in the Sublease Premises. Landlord
and Sublessor shall not be liable to Sublessee for any damage to its personal
property caused by fire or other perils.
9. COMPLIANCE WITH LEASE AND LAWS
Sublessee shall not cause or allow any undue waste on the Sublease
Premises and shall comply with all applicable laws, rules, regulations and
ordinances respecting the use and occupancy of the Sublease Premises, including
but not limited to those pertaining to hazardous materials and environmental
matters.
Sublessee shall enjoy all rights granted to Sublessor under the
provisions of the Lease.
To the extent that any terms, conditions or covenants in the Lease are
not inconsistent with any of the terms and conditions of this Sublease,
Sublessee agrees that all such terms, conditions and covenants of the Lease are
hereby incorporated herein. Sublessee shall and hereby agrees to be subject to
and bound by and to comply with all such terms and conditions of the Lease with
respect to the Sublease Premises and to satisfy all applicable terms and
conditions of the Lease for the benefit of both Sublessor and Landlord, it being
understood that wherever in such terms and conditions of the Lease the word
"Tenant" appears, for the purpose of this Sublease, the word "Sublessee" shall
be substituted. Upon the breach of any of said terms and conditions of the Lease
or upon the failure of Sublessee to pay Basic Rental or comply with any of the
covenants or provisions of this Sublease and the expiration of any applicable
grace or notice and cure period, Sublessor may exercise any and all rights
granted to Landlord by the Lease. Sublessee shall defend and indemnify Sublessor
against all causes of action, disputes, damages, costs and expenses with
respect to the nonperformance or nonobservance of any such terms or conditions.
Sublessor represents and warrants to Sublessee that (a) Sublessor has
delivered to Sublessee a full and complete copy of the Lease and all other
agreements between Landlord and Sublessor relating to the leasing, use and
occupancy of the Premises; (b) the Lease is, as of the date hereof, in full
force and effect; (c) no event of default has occurred under the Lease and, to
Sublessor's knowledge, no event has occurred and is continuing which would
constitute an event of default but for the requirement of the giving of notice
and/or the expiration of the period of time to cure; and (d) Sublessor currently
pays $1.08 per square foot of Rentable Area as additional rent.
It is further understood by Sublessee that, except as otherwise
provided in this Sublease, Sublessor has no duty or obligation to Sublessee
under such terms and conditions of the Lease other than not to be in default of
the Lease and to maintain the Lease in full force and effect during the term of
this Sublease; provided, however, Sublessor shall not be liable to Sublessee
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for any earlier termination of the Lease not due to the fault of Sublessor.
Whenever such terms and conditions of the Lease require the consent of Landlord,
it shall be construed to require the consent of both Landlord and Sublessor.
Although nothing contained in this Paragraph 9 shall be construed to limit any
of the terms, conditions and covenants of this Sublease, Sublessor may in its
discretion, waive or amend any provision of the Lease unless by doing so the
rights of Sublessee under this Sublease shall be adversely affected.
10. ALTERATIONS
In the event Sublessee desires to make any alterations to the Sublease
Premises, such alterations shall be (a) approved in writing by Landlord and
Sublessor, (b) made at the sole cost and expense of Sublessee and (c) performed
in accordance with the provisions of the Lease relating to alterations to the
Premises. Any costs incurred by Sublessor in connection with such alterations
shall be paid by Sublessee to Sublessor upon demand. Pursuant to Section 4.4 of
the Lease, in the event Sublessor is required by Landlord to return the Sublease
Premises to its condition as of the execution of this Sublease, Sublessee shall
perform such restoration at Sublessee's sole cost and expense with respect to
alterations made or caused to be made by Sublessee.
11. MAINTENANCE AND REPAIRS
Subject to any related obligations of Landlord under the Lease,
Sublessee, unless herein specified to the contrary, shall maintain the Sublease
Premises in the same general condition in which Sublessee received them,
ordinary wear and tear excepted. Sublessee shall, at its own cost and expense,
make repairs and maintain the Sublease Premises as is required of Sublessor in
the Lease, subject to the terms and conditions set forth in the Lease.
12. QUIET ENJOYMENT
Subject to the Lease and the termination right set forth in Paragraph 3
of this Sublease, if Sublessee performs in accordance with the terms of this
Sublease, Sublessor will warrant and defend Sublessee in the enjoyment and
peaceful possession of the Sublease Premises during the term hereof without any
interruption by Sublessor or Landlord or, except as hereinafter expressly
provided, any person rightfully claiming under either of them.
13. EMERGENCY ACCESS
Sublessor and Sublessee hereby acknowledge and agree that Sublessee's
emergency access to the Sublease Premises shall be through a portion of the
Premises. Sublessor hereby grants to Sublessee and its employees, agents and
invitees the right of entry into and passage through the Premises solely for the
purpose of entering or leaving the Sublease Premises in the case of an
emergency. Sublessor shall keep the entrances to the Premises from the Sublease
Premises and all emergency exits and entrances unlocked and passage to such
entrances and exits unblocked at all times. Sublessee shall be liable for any
loss, cost, damage or expense incurred by Sublessor related to Sublessee's
exercise of such right of access.
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14. DEFAULT OF SUBLESSEE
If any Basic Rental or additional rental or other sums reserved
hereunder, or any part thereof, shall be and remain unpaid when due (provided,
however, the first two (2) times in any one (1) Lease year that Sublessee fails
to pay said Basic Rental or additional rental when due, Sublessor shall give
Sublessee written notice of such overdue payment and allow Sublessee a period of
five (5) days in which to pay same prior to declaring a default hereunder), or
if Sublessee shall violate or default in any of the provisions of this Sublease
or the Lease, and such violation or default shall continue for ten (10) days
after written notice thereof from Sublessor to Sublessee, then Sublessor may
cancel this Sublease by giving such notice and re-enter the Sublease Premises.
Notwithstanding any re-entry, all rent due under the terms of this Sublease
shall be accelerated pursuant to applicable law and the liability of Sublessee
for the rent shall not be extinguished for the balance of the Sublease Term.
Sublessee shall make good to Sublessor any deficiency and reimburse Sublessor's
reasonable expenses arising from a re-entry or reletting of the Sublease
Premises, even if at a reduced rental. Sublessee shall pay any deficiency on the
first day of each month immediately following the month in which the amount of
the deficiency is ascertained by Sublessor.
In addition to any other remedies Sublessor may have under this
Sublease and the Lease, and without reducing or adversely affecting any of
Sublessor's rights and remedies under this Sublease and the Lease, if any rental
or damages payable hereunder by Sublessee to Sublessor are not paid within five
(5) days after the due date therefor, the same shall bear interest at an
interest rate equal to four percent (4%) above the so-called annual base rate of
interest established and approved by Citibank, N.A., New York, New York, or its
successors, from time to time, as its interest rate charged for unsecured loans
to its corporate customers, but in no event greater than the highest lawful
rate from time to time in effect.
15. INSOLVENCY OR BANKRUPTCY
If (a) Sublessee shall make a general assignment for the benefit of
creditors; (b) any petition shall be filed by or against Sublessee under the
United States Bankruptcy Code, as amended, or under any similar law or statute
of the United States or any state thereof, and such petition shall not be
dismissed within sixty (60) days of filing, or Sublessee shall be adjudged
bankrupt or insolvent in proceedings filed thereunder; or (c) a receiver or
trustee shall be appointed for all or substantially all of the assets of
Sublessee, and such appointment shall not be vacated or otherwise terminated,
and the action in which such appointment was ordered dismissed, within sixty
(60) days of filing, then Sublessor may terminate this Sublease at the option of
Sublessor, while preserving any rights permitted to Sublessor by law.
16. NONASSIGNABILITY
Neither the interest created by execution of this Sublease nor any
interest in the Sublease Premises is assignable or in any manner transferable
without the prior written consent of Sublessor and Landlord, which consent by
Sublessor shall not be unreasonably withheld.
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17. HOLDING OVER
Notwithstanding any provision of law or any judicial decision to the
contrary, no notice shall be required to terminate the Sublease Term on the
expiration thereof, and Sublessee hereby agrees to vacate the Sublease Premises
no later than five (5) days following the expiration of the Sublease Term. Any
holdover by Sublessee beyond such expiration shall be subject to all of the
rights reserved in the Lease.
18. INTEREST OF SUCCESSORS
Each and every covenant, term and condition of this Sublease shall be
binding upon and inure to the benefit of each of the parties and its respective
successors and permitted assigns.
19. NOTICES
All notices which it may be necessary or proper for either party to
give to the other shall be effectively given when (a) mailed postage prepaid,
registered or certified mail, return receipt requested, (b) hand delivered to
the intended address, or (c) sent by prepaid telegram, cable, confirmed
facsimile transmission or telex or confirmed electronic mail followed by a
confirmatory letter, to the following addresses:
If to Sublessor: Rosewood Resources, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Lock Box 22
Dallas, Texas 75204-2944
Attention: Xxxx Xxxxxx
General Counsel
If to Sublessee: ZixIt Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Lock Box 36
Dallas, Texas 75204-2944
Attention: General Counsel
Either party may from time to time specify in writing a new address to which any
such notice intended for such party shall thereafter be addressed, which notice
shall not be effective until the actual receipt thereof by the addressee. Notice
sent by mail shall be effective three (3) business days after being deposited in
the United States mail; all other notices shall be effective upon delivery to
the address of the addressee.
20. NO PERSONAL LIABILITY OF SUBLESSOR
If Sublessor shall fail to perform any term, condition, covenant or
obligation of this Sublease upon Sublessor's part to be performed or if
Sublessor shall be liable to Sublessee in any way arising out of this Sublease
or pursuant to statute, law, ordinance or regulation or under the
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common law and, as a consequence, if Sublessee shall recover a money judgment
against Sublessor, such judgment shall be satisfied only out of the proceeds
received at a judicial sale upon execution and levy against the right, title and
interest of Sublessor in the Sublease Premises. This provision shall not
preclude (a) termination of this Sublease by Sublessee as expressly permitted
pursuant to the terms of this Sublease or by applicable law or (b) enforcement
against Sublessor of an injunction or other equitable remedy.
21. OPTIONS
Sublessee shall have no right to exercise any options available to
Sublessor under the Lease, including, but not limited to, options to increase
the size of the Sublease Premises or renew this Sublease.
22. BROKERS
Sublessor and Sublessee each represents and warrants to the other party
hereto that no broker, agent or finder negotiated or was instrumental in
negotiating or consummating this Sublease on behalf of the representing party
other than Southwest Real Estate Services, Inc. ("Broker"), whose fee shall be
payable by Sublessor pursuant to a separate agreement between Sublessor and
Broker, and that neither Sublessor nor Sublessee knows of any other real estate
broker, agent or finder who is, or might be, entitled to a commission or
compensation for representing such party in connection with this Sublease,
except for The Staubach Company which shall be paid pursuant to a separate
agreement with Broker. Sublessor and Sublessee shall indemnify and hold the
other party hereto harmless from all damages paid or incurred by such party
resulting from any claims that may be asserted against such other party by any
broker, agent or finder claiming through the indemnifying party.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first written above.
SUBLESSOR
ROSEWOOD RESOURCES, INC.,
a Delaware corporation
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
President
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SUBLESSEE:
ZIXIT CORPORATION,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: V.P.
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