1
EXHIBIT 10.7
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is entered into as of the 7th day of August
1996, by and between Atlantic Richfield Company, a Delaware corporation, acting
by and through its division, ARCO Coal Company, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, ("Sublessor") and Mercury Mail, Inc., a Delaware corporation,
("Sublessee").
R E C I T A L S:
A. On or about June 22, 1979, City Center Associates, successor in
interest to U.I.D.C. - Denver, Inc., a Colorado corporation ("and their
successors in interest, hereinafter "Landlord") and Sublessor entered into a
written lease agreement, as amended by First Amendment to Lease dated April 30,
1980, Second Amendment to Lease dated July 31, 1980, Third Amendment to Lease
dated December 22, 0000, Xxxxxx Xxxxxxxxx to Lease dated March 4, 1982, Fifth
Amendment to Lease dated June 7, 1982, and Sixth Amendment to Lease dated June
7, 1982, and Seventh Amendment to Lease dated August 18, 1992, attached hereto
as Exhibit A (the "Master Lease") pertaining to approximately 399,000 square
feet of space located on the 26th through the 42nd floors (the "Premises") of
the MCI Tower building, located at Denver, Colorado, (the "Building"). Crescent
Real Estate Equities Limited Partnership is the present successor in interest to
City Center Associates.
B. Sublessor desires to sublease to Sublessee approximately 9,064
rentable square feet (as determined on the basis of the current method of
measuring office space as referenced by the American National Standards
Institute, Inc., in effect as of the date of this Sublease) of the Premises (the
"Sublet Premises") consisting of a part of the 28th floor as delineated on the
attached Exhibit B ("Office Space").
C. BOTH PARTIES UNDERSTAND THAT THE PRIOR WRITTEN CONSENT OF LANDLORD
IS REQUIRED TO PERMIT SUCH SUBLETTING. THE PARTIES AGREE TO CONTEMPORANEOUSLY
EXECUTE THE CONSENT TO SUBLEASE FORM ATTACHED HERETO AS EXHIBIT C.
A G R E E M E N T:
In consideration of the rent to be paid hereunder, the terms and
conditions hereof, and the mutual benefits to be derived, the parties agree as
follows:
ARTICLE 1. TERM
1.1 Sublessor, subject to the prior written consent of Landlord,
hereby sublets the Sublet Premises, consisting of 9,064 rentable
square feet, to Sublessee for a term commencing on August 1,
1996, and terminating on December 31, 2001 ("Term").
1
2
ARTICLE 2. RIGHT OF FIRST REFUSAL TO SUBLEASE ADDITIONAL SPACE
2.1 Sublessor shall grant to Sublessee the right of first refusal on
any space which becomes available on the 28th floor, subject to
pre-existing encumbrances, during the Term of the Sublease.
Sublessor shall submit to Sublessee any bona fide offer it
receives from an arms-length third party to sublease space on the
28th floor in the form of a letter of intent, and Sublessee shall
have three (3) business days, after receiving written notice of
such offer, to submit its written acceptance to sublease the
space on the same terms as the offer. If Sublessee fails to
accept such offer within said three (3) business days from its
receipt, its first right of refusal on said space shall
terminate, provided, however, that within 60 days following such
notice, Sublessor subleases such space to such other sublessee on
the terms and conditions no more favorable to such third party
that were contained in the notice to Sublessee. The space will be
offered to Sublessee under the same terms and conditions it is
being offered to the third party. The expiration date for any
sublease of additional space shall be the same as the primary
Sublease Term.
ARTICLE 3. BASE RENT AND SERVICES
3.1 A Base Rent of $8.50 per rentable square foot, per year, shall be
paid by Sublessee for the Sublet Premises. Rent is payable
monthly, in advance, in the amount of Six Thousand Four Hundred
Twenty Dollars and Thirty Three Cents ($6,420.33), beginning
August 1, 1996, through the end of the Sublease Term.
3.2 In addition to the Base Rent, Sublessee shall pay Additional
Rent, which is the amount by which the annual Operating Expenses,
defined under Paragraph 11 A(8) of the Master Lease, allocable to
the Sublet Premises on a pro rata basis, exceeds the 1996 actual
Operating Expenses allocable to the Sublet Premises. Sublessee
shall pay the estimated Additional Rent based on Landlord's
estimate as required under Paragraph 11B of the Master Lease.
The Landlord's notice of accounting of the Operating Expenses
shall be sufficient accounting under the Sublease.
3.4 Sublessee shall be entitled, without charge except as provided
therein, to the services provided by Landlord pursuant to
Paragraph 7 and Paragraph 39 of the Master Lease.
3.4 This rent will be payable to Sublessor at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, or at such other address as
Sublessor may designate in writing, on or before the first day of
each calendar month for that calendar month.
2
3
ARTICLE 4. SECURITY DEPOSIT
Sublessee has deposited with Sublessor the sum of Seventy Seven Thousand and
Forty Four Dollars $(77,044.00) as security for the full and faithful
performance of every provision of this Sublease to be performed by Sublessee. If
Sublessee defaults with respect to any provision of this Sublease, including but
not limited to the provisions relating to the payment of rent, Sublessor may
use, apply or retain all or any part of this security deposit for the payment of
any rent or any other sum in default or before the payment of any other amount
which Sublessor may spend or become obligated to spend by reason of Sublessee's
default, or to compensate Sublessor for any other loss, cost or damage which
Sublessor may suffer by reason of Sublessee's default. If any portion of said
deposit is so used or applied, Sublessee shall, within five (5) days after
written demand therefor, deposit cash with Sublessor in an amount sufficient to
restore the security deposit to its original amount, and Sublessee's failure to
do so shall be a breach of this Sublease. Sublessor shall not be required to
keep this security deposit separate from its general funds nor to pay interest
thereon to Sublessee. If Sublessee shall fully and faithfully perform every
provision of this Sublease to be performed by it, the security deposit or any
balance thereof shall be returned to Sublessee at the expiration of Sublease
Term and upon Sublessee's vacation of the Sublet Premises.
ARTICLE 5. SUBLET PREMISES
The Sublet Premises is described in Exhibit B, attached hereto and made a part
hereof. Sublessee will occupy the Sublet Premises in its "as is" condition.
Sublessee shall, at its own cost and expense, arrange with Landlord for all
cabling to other floors and for all rooftop dish requirements, and by its
execution of this Sublease, Sublessee acknowledges that such arrangements have
been concluded to Sublessee's satisfaction.
ARTICLE 6. SUBLESSEE'S DEFAULT
6.1 It shall be an "Event of Default" if (i) Sublessee fails to pay
Rent or any other charge or payment required of Sublessee
hereunder when due and such failure continues for ten (10) days
after written notice thereof to Sublessee by Sublessor; (ii)
Sublessee violates or fails to perform any of the other
conditions, covenants, or agreements herein made by Sublessee,
and such violation or failure continues for fifteen (15) days
after written notice thereof to Sublessee by Sublessor; (iii)
Sublessee makes a general assignment for the benefit of its
creditors or files a petition for bankruptcy or other
reorganization, liquidation, dissolution, or similar relief; (iv)
a proceeding is filed against Sublessee seeking any relief
mentioned in (iii) above that is not dismissed within sixty (60)
days after Sublessee receives notice of such proceeding; (v) a
trustee, receiver, or liquidator is appointed.
3
4
for Sublessee or a substantial part of its property; (vi)
Sublessee's interest under this Sublease is taken upon execution
or by other process of law directed against Sublessee or shall be
made subject to any attachment by or on behalf of any creditor of
Sublessee; or (vii) Sublessee mortgages, assigns (except as
expressly permitted in this Sublease) or otherwise encumbers
Sublessee's interest under this Sublease.
6.2 If an Event of Default occurs, Sublessor may: (i) without
obligation to do so and without releasing Sublessee from any
obligation under this Sublease, make any payment or take any
action Sublessor may deem necessary or desirable to cure such
Event of Default, and the cost thereof shall be reimbursed by
Sublessee to Sublessor within ten (10) days after demand; (ii)
terminate this Sublease by written notice to Sublessee as of the
date such notice is given or as of any other date specified in
such notice; (iii) with or without terminating this Sublease,
reenter and take possession of the Sublet Premises by legal
proceedings; (iv) with or without terminating this Sublease, if
Sublessee has abandoned the Sublet Premises, reenter and take
possession of the Sublet Premises, or any part thereof, and
remove the effects therein without liability for any damages
thereto and without being deemed guilty of any manner of trespass
and without prejudice to any other remedies of Sublessor
hereunder; and (v) exercise any other legal remedy, including,
without limitation, any applicable equitable remedies, on account
of such Event of Default. All remedies of Sublessor under this
Sublease shall be cumulative, and the exercise of any of such
remedies shall not prevent the concurrent or subsequent exercise
of any other remedy, either provided for in this Sublease or
available to Sublessor at law or in equity.
6.3 Should Sublessor elect to reenter or take possession of the
Sublet Premises pursuant to legal proceedings or otherwise,
Sublessor shall, from time to time, without terminating this
Sublease, use reasonable efforts to re-sublet the Sublet Premises
or any part thereof on behalf of Sublessee for such term or terms
and at such rent or rents, and upon such other terms and
conditions, as Sublessor may deem reasonably advisable
(including, without limitation, giving any concessions, free
rent, and any other concessions that may be reasonably necessary
under the circumstances), with the right to make alterations and
repairs to the Sublet Premises. No such reentry or taking of
possession of the Sublet Premises by Sublessor shall be construed
as an election on Sublessor's part to terminate this Sublease,
unless a written notice of termination is given to Sublessee by
Sublessor, nor shall it preclude Sublessor from terminating this
Sublease at a later time by giving written notice to Sublessee.
However, if Sublessor is unable to re-sublet the Sublet Premises,
Sublessor shall in no manner whatsoever be responsible or liable
for such failure to re-sublet the Sublet Premises.
4
5
6.4 If Sublessor elects to take possession without terminating this
Sublease, then such repossession shall not relieve Sublessee of
its obligations and liabilities under this Sublease, all of which
shall survive such repossession. In the event of such
repossession, Sublessee shall pay to Sublessor, as Rent, all Rent
that would be payable hereunder if such repossession had not
occurred, less the net proceeds, if any, of any re-subletting of
the Sublet Premises, after deducting all of Sublessor's
reasonable expenses in connection with such re-subletting and any
reasonable rental concessions. Sublessee shall pay such Rent to
Sublessor on the days on which such Rent would have been payable
hereunder if possession had not been retaken.
6.5 If, however, this Sublease is terminated by Sublessor, Sublessor
shall be entitled to recover as damages from Sublessee, in
addition to all other damage suffered by Sublessor on account of
any Event of Default, the sum of (i) the present value of all of
the Rent that would have been due for the remainder of the
Sublease Term had this Sublease not been terminated, plus all of
Sublessor's costs of re-subletting the Sublet Premises,
including, but not limited to, repossession costs, repair,
alteration, and preparation of the Sublet Premises for
re-subletting, brokerage commissions, attorneys' fees, and rental
concessions. Said amount shall be immediately due and payable by
Sublessee to Sublessor, minus (ii) the present value of the fair
rental value of the Sublet Premises from the effective date of
such termination through the date on which the Sublease Term
would have expired had the Sublease not been terminated. Any
amount due to Sublessor hereunder may be collected after
termination. For purposes of calculating present values under
this Paragraph 7.5, the applicable discount rate shall be equal
to the sum of 2% plus the prime lending rate in effect as of the
date of the Event of Default as quoted in the Wall Street Journal
(the "WSJ"), or, if the WSJ ceases to be published, a similar
national daily business publication identified by Sublessor.
ARTICLE 7. SUBLEASE AGREEMENT SUBJECT TO MASTER LEASE
7.1 This Sublease Agreement is subject and subordinate to the Master
Lease. Except as may be inconsistent with, inapplicable to, or
expressly modified by the terms of this Sublease Agreement, all
the terms, covenants and conditions in the Master Lease shall be
applicable to this Sublease Agreement with the same force and
effect as if Sublessor were the Landlord under the Master Lease
and Sublessee were the Tenant thereunder, and in case of any
breach hereof by Sublessee, Sublessor shall have all the rights
against Sublessee as would be available to the Landlord against
the Tenant under the Master Lease if the breach were by the
Tenant thereunder. Sublessee hereby acknowledges receipt of a
copy
5
6
of the Master Lease documents. Notwithstanding the foregoing,
Sublessee shall not have any of the rights granted to Sublessor
under the Master Lease in Paragraphs 4, 5, 6, 14, 17, 22, 23, 27,
29, 31, 32, 33, 34, and 37. The preceding paragraphs are
identified for purposes of illustration and not limitation.
7.2 The Master Lease is an agreement solely between Landlord and
Sublessor, and any and all rights and remedies of Sublessee, if
any, shall be solely against Sublessor. However, if Landlord
fails to perform its obligations under the Master Lease,
entitling Sublessor as Tenant thereunder to self help remedy,
Sublessor shall fulfill those obligations of Landlord to the
Sublessee. Neither Landlord's Consent to the Sublease Agreement
nor this Sublease Agreement itself shall give Sublessee any
rights under the Master Lease except those expressly granted by
the Sublease Agreement.
7.3 On matters relating to this Sublease Agreement and subject to
Sublessor's prior approval, which will not be unreasonably
withheld or delayed, Sublessor shall cooperate with Sublessee in
obtaining the consent or approval of Landlord whenever such
consent or approval is required.
7.4 If the Master Lease is terminated the Landlord shall have the
option to treat the termination either as a termination of this
Sublease or as an assignment to the Landlord of the Sublease.
7.5 As between Sublessor and Sublessee only, and in no way involving
Landlord, Sublessor hereby agrees that, if Sublessor were ever to
voluntarily terminate, surrender, or relinquish the Master Lease
to Landlord (in a situation not involving a Default by Sublessor,
but rather, for example a buy-out of the Master Lease by
Landlord), Sublessor shall, prior to or concurrent with such
termination, surrender, or relinquishment to Landlord, agree to
protect the Sublessee's rights under the Sublease so that
Sublessee's right to quiet, peaceful use and enjoyment of the
Sublet Premises and the right not to be dispossessed, evicted or
moved within the MCI Tower Building containing the Sublet
Premises, subject to the other terms and conditions of this
Sublease, are not prejudiced, without fair and just compensation
to Sublessee, and with the same result intended and benefits
accruing to Sublessee as if a non-disturbance agreement had been
executed by Sublessor in favor of the Sublessee, covering the
Sublet Premises.
ARTICLE 8. INDEMNIFICATION AND LIMITATION ON LIABILITY
8.1 Sublessor and Sublessee, each for itself, covenant and agree (a)
that they shall not do or suffer or permit anything to be done
which would constitute
6
7
a default under the Master Lease or would cause the Master Lease
to be canceled, terminated or forfeited by virtue of any rights
of cancellation, termination or forfeiture reserved or vested in
the Landlord under the Master Lease, and (b) that each of them
will indemnify and hold harmless the other of them from and
against all claims, liabilities, losses, and damages of any kind
whatsoever incurred by reason of, resulting from or arising out
of any such dispute, cancellation, termination, or forfeiture
referred to in (a) above and caused by the indemnifying party.
Notwithstanding the foregoing however, neither party hereto shall
be liable to the other for any indirect or consequential
damages.
8.2 Sublessee hereby indemnifies and holds harmless Sublessor and
Landlord and their respective employees, agents, and invitees
from and against any liability arising directly or indirectly out
of Sublessee's use and occupancy of the Sublet Premises, except
liability arising out of the sole negligence or willful
misconduct of Sublessor or Landlord.
ARTICLE 9. REPAIRS AND ALTERATIONS BY SUBLESSEE
9.1 Sublessee shall not make any alterations in or additions to the
Sublet Premises without first obtaining written consent of
Sublessor and to the extent required under the Master Lease, of
the Landlord. By execution hereof, Sublessor acknowledges
acceptance of Sublessee's initial plans, dated July 31, 1996, for
alterations and additions to the Sublet Premises. All alterations
onto the Sublet Premises, including, by way of illustration and
not by limitation, all partitions, paneling, carpeting, drapes or
other window coverings and light fixtures, except as specifically
set forth hereinafter (but not including movable office furniture
not attached to the Building or special decorative light
fixtures), shall be deemed a part of the real estate and the
property of Sublessor and shall remain upon and be surrendered
with the Sublet Premises as a part thereof without molestation,
disturbance or injury at the end of the Sublease term, whether by
lapse of time or otherwise. If Sublessee is not in default,
Sublessee shall have the right to remove telephone, computer,
cooling equipment and related devices upon termination hereof,
provided that Sublessee restores the Sublet Premises to its
condition at the time of Initial possession.
9.2 Sublessee shall keep the Sublet Premises in as good order,
condition and repair and in an orderly state, as when they were
entered upon, ordinary wear and tear and damage from casualty not
the fault of Sublessee, its agents, employees and invitees
excepted. Except for any repairs or replacements which are
required as the result of Landlord's or Sublessor's negligence or
misconduct, or latent defects which are discovered by Sublessee
and of which Sublessor is notified within two (2) months after
the commencement of the term hereof, Sublessor shall have no
obligation
7
8
for the repair or replacement of any portion of the Sublet
Premises which wears out during the term hereof, regardless of
the cause therefor, or which requires replacement or repair for
any other reason, including, but not limited to, carpeting,
draperies, wall coverings, painting or any of Sublessee's
property, Sublessee finish work or Sublessee's improvements in
the Sublet Premises, except as otherwise set forth.
9.3 All repair and maintenance work required to be performed by
Sublessee and any Alterations or additions by Sublessee for which
Sublessee has obtained Sublessor's and Landlord's' approval
hereunder may be performed by Sublessee's employees. All such
repair and maintenance work and any other Alterations which
Sublessee has the right to make hereunder, or any other
Alterations permitted by Sublessor pursuant to the provisions of
subparagraph 9.1 above, shall be done at Sublessee's sole cost
and expense; provided, however if Sublessee employs any
contractors or other persons who are not employees of Sublessee
to perform any such work, Sublessee shall have obtained
Sublessor's and Landlord's approval, which shall not be
unreasonably withheld, of such contractor or other person not
later than ten (10) days prior to commencement of any such work.
In all events the performance of such work by any of Sublessee's
employees or any third parties shall not be permitted if it will
materially interfere with any of Landlord's labor relations with
third parties performing any work in the Building. Sublessee, at
its expense, shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of Alterations
and for final approval thereof upon completion, and shall cause
Alterations to be performed in compliance therewith and with all
applicable laws and requirements of public authorities and with
all reasonable applicable requirements of Landlord's and
Sublessor's insurance carriers. Alterations shall be performed in
a good and workmanlike manner, using materials and equipment at
least equal in quality and class to the original installations in
the Office Portion as Office Portion is defined in the Master
Lease. Further, if any such Alterations involve installments with
respect to Sublessee's telephonic, telegraphic or electrical
connections, such Alterations shall be performed by parties
either designated or approved in writing by Sublessor. In all
events, any such work performed by Sublessee shall be done in
such a manner so as not to interfere with the mechanical or
electrical systems or affect the structural integrity of the
Building.
9.4 If Sublessee utilizes third parties to perform such work, with
Landlord's or Sublessor's prior consent, Sublessee shall on
request deliver to Sublessor and Landlord certificates issued by
insurance companies qualified to do business in the State of
Colorado, evidencing that workmen's compensation and public
liability insurance and property damage insurance all in the
amounts and with companies, and on forms satisfactory
8
9
to Sublessor and Landlord, are in force and effect and maintained
by all contractors and subcontractors engaged by Sublessee to
perform such work. All such policies shall name Sublessor and
Landlord as additional insured. Each such certificate shall
provide that the insurance may not be canceled or modified
without ten (10) days prior written notice to Sublessor and
Landlord.
9.5 Sublessee shall keep the Sublet Premises free and clear of all
liens and encumbrances of third parties or contractors who
perform alterations or repairs or other work on the Sublet
Premises, and if any are filed, shall cause them to be removed
promptly or shall indemnify and hold harmless Sublessor from and
against any such lien or encumbrance.
ARTICLE 10. FIRE: RESTORATION OF PREMISES
10.1 If the Sublet Premises, the Premises or the Building shall be so
damaged by fire or other casualty as to render the Sublet
Premises wholly untenantable, and if the damage shall be so great
that a competent architect, in good standing, selected by
Landlord shall certify in writing to Landlord and Sublessor that
the Building or the Premises (as Building and Premises are
defined in the Master Lease), or the Sublet Premises, with the
exercise of reasonable diligence, cannot be made fit for
occupancy within one hundred fifty (150) working days from the
happening thereof, then this Sublease shall cease and terminate
from the date of the occurrence of the damage; and Sublessee
thereupon shall surrender to Sublessor the Sublet Premises and
all interest therein hereunder, and Sublessor may reenter and
take possession of the Sublet Premises and remove Sublessee
therefrom. Sublessee shall pay rent, duly apportioned, up to the
time of the termination of this Sublease. If, however, the damage
shall be such that the architect shall certify that the Sublet
Premises can be made tenantable within the one hundred fifty
(150) day period, then repairs will be made as provided in
Paragraph 22 of the Master Lease with all reasonable speed.
10.2 If the Sublet Premises shall be slightly damaged by fire or other
casualty, but not so as to render them untenantable, Sublessor,
after receiving notice in writing of the occurrence of the
injury, shall cause them to be repaired by the Landlord with
reasonable promptness; provided, however, Sublessee shall be
solely responsible for all repairs and replacements to
Sublessee's improvements in the Sublet Premises.
10.3 During any period of restoration or repair of the Sublet Premises
resulting from a fire or other casualty, Sublessee's rent shall
xxxxx during the period the Sublet Premises or any portion
thereof are rendered untenantable in the same proportion which
such part of the Sublet Premises which are
9
10
untenantable bears to the whole, provided that in the event more
than fifty percent (50%) of the Sublet Premises are rendered
untenantable the entire Sublet Premises shall be deemed
untenantable to the extent not occupied by Sublessee.
10.4 In case the Building throughout shall be so injured or damaged,
whether by fire or otherwise, (though the Sublet Premises may not
be affected, or if affected, can be repaired within the one
hundred fifty (150) days) that Landlord, within sixty (60) days
after the happening of the injury, shall decide not to
reconstruct or rebuild the Building, then, notwithstanding
anything contained herein to the contrary, upon notice in writing
to that effect given by Sublessor to Sublessee within seventy
(70) days from the date of the casualty, a) Sublessee shall pay
the rent, properly apportioned up to the date of termination of
the Sublease, b) this Sublease shall terminate from the date of
delivery of the written notice, c) and both parties hereto shall
be freed and discharged of all further obligations hereunder.
ARTICLE 11. CONDEMNATION
If the Sublet Premises or the Premises or the Building shall be taken by right
of eminent domain or by condemnation, or shall be conveyed in lieu of any such
taking, this Sublease, at the option of either Sublessor or Sublessee exercised
by either party giving notice to the other of such termination within thirty
(30) days after such taking or conveyance, shall forthwith cease and terminate
and the rent shall be duly apportioned as of the date of such taking or
conveyance. Sublessee thereupon shall surrender to Sublessor the Sublet Premises
and all interest therein under this Sublease, and Sublessor may reenter and take
possession of the Sublet Premises or remove Sublessee therefrom. In the event of
any such taking or conveyance, Sublessee shall have the right at its own cost to
make a separate claim from the condemning authority, and not from Sublessor or
Landlord, for relocation expenses, the costs of Sublessee's improvements taken,
and the value of any portion of the leasehold so terminated, so long as the
claim shall not directly or indirectly result in costs or delays to Sublessor or
Landlord and so long as any award to Sublessee does not diminish Landlord's or
Sublessor's award. Sublessor shall give Sublessee written notice of any
condemnation proceedings or negotiations with any governmental body or as to the
possibility of such proceeding within five (5) days after it receives the notice
from Landlord.
ARTICLE 12. INSURANCE
12.1 Sublessee shall maintain in effect the following types and
amounts of insurance with insurance companies satisfactory to
Sublessor:
10
11
12.1.1 Worker's Compensation Insurance, including Occupational
Disease and Employer's Liability Insurance in the limit
of not less than $500,000 per person and $1,000,000 per
accident.
12.1.2 Comprehensive General Liability Insurance, including
contractual liability with limits of not less than
$1,000,000 applicable to bodily injury, sickness or
death in any one occurrence and $500,000 for loss of or
damage to property in any one occurrence.
12.2 All policies shall be endorsed to provide that the underwriters
and insurance company of Sublessee shall not have any right of
subrogation against Sublessor or Landlord, or any of their
respective subsidiaries, agents, employees, invitees, servants,
contractors, insurers, or underwriters, or against such other
parties as Sublessor may designate from time to time. Any
insurance policy or policies of Sublessor relating to the
Premises will provide a Waiver of Subrogation in favor of
Sublessee, its agents and employees, and other persons and
entities occupying or using the Sublet Premises in accordance
with the terms of the Sublease and Master Lease.
12.3 Upon request, Sublessee shall furnish Certificates of Insurance
to Sublessor evidencing the insurance required hereunder. Each
certificate shall provide that thirty (30) days prior written
notice shall be given Sublessor in the event of cancellation or
material change in the policies.
12.4 Each party shall have its insurance underwriter waive any right
of subrogation it may have against the other party on account of
any loss or damage that is insured against under any insurance
policy (to the extent that the loss or damage is recoverable
under the insurance policy) that covers the Building, the
Premises, the Sublet Premises or Sublessor's or Sublessee's
fixtures, personal property, leasehold improvements or business
and names Sublessor or Sublessee, as the case may be, as a party
insured. Nothing contained in this section shall derogate from
otherwise affect any other releases of either party for claims.
ARTICLE 13. PARKING
Sublessee shall have the right initially, upon execution of this Sublease, to
lease up to nine (9) parking spaces in the City Center Garage for $105 each per
month for the initial Term of this Sublease, and subject to the terms and
conditions of the City Center Garage Parking Agreement ("Parking Lease"). The
parties shall execute the Parking Lease attached hereto as Exhibit D.
11
12
ARTICLE 14. MISCELLANEOUS
14.1 Sublessee shall, during ordinary business hours as referenced in
the Master Lease, be allocated electric current for the Sublet
Premises as provided in this 14.1. Sublessee shall use the
electric current only for building standard lighting and business
machines described below, and standard HVAC, which term shall not
include required cooling or heating for any of Sublessee's
special equipment or computers. To the extent that electric
current is used for any other purpose, including heating or
cooling required for any of Sublessee's special equipment,
computers, or computer rooms, Sublessee's rent may be increased
from time-to-time by Sublessor as hereafter described. The amount
of electrical current to which Sublessee is entitled hereunder
without additional charge for general office uses (e.g.,
typewriters, calculators, small copying machines, incandescent
lighting, task ambient lighting, xxxxx units, water coolers,
CRT's, personal computers and coffee machines) shall be
calculated in accordance with the following formula: five (5)
xxxxx per rentable square foot multiplied by the rentable square
footage of the Sublet Premises multiplied by ordinary business
hours per year as referenced in the Master Lease, with the
resultant figure divided by twelve (12) (hereinafter the "monthly
allowance"). The monthly allowance will be compared with the
actual monthly consumption of electric current utilized by
Sublessee (except for standard building lighting and standard
HVAC) to determine the excess usage by Sublessee, if any. Such
excess will be multiplied by Sublessor's actual costs for such
energy as reasonably determined by Sublessor's or Landlord's
engineers (the resulting figure shall hereinafter be referred to
as "Sublessee's monthly usage"). Sublessor shall have the right,
not more frequently than monthly, to make an adjustment in each
monthly rental payment then being made by Sublessee based upon
Sublessee's monthly usage multiplied by the average cost incurred
by the Building per kilowatt hour for power for the previous
month. To assist Sublessor in making the rental adjustment
described herein, Sublessor shall have the right to require
installation by Sublessee of such electric meters as Sublessor
reasonably deems necessary to assist it in making the adjustment
and the cost of the meters and their installation shall be borne
by Sublessee. Sublessee shall also pay the labor cost of
replacing light bulbs or tubes used in non-standard lighting, and
Sublessee shall pay for the purchase of bulbs and tubes used in
non-standard lighting of the Sublet Premises; provided, however,
Sublessee shall have the right to change its own light bulbs or
tubes so long as Sublessee does not interfere with the Building's
mechanical or electrical systems.
12
13
14.2 All prior understandings and agreements between the parties are
merged within this Sublease Agreement, which alone fully and
completely sets forth the understanding of the parties; and this
Sublease Agreement may not be changed or terminated orally or in
any manner other than by an amendment in writing signed by
authorized agents of each of the parties and subject to the prior
written consent of Landlord.
14.3 Any notice or demand which either party may or must give to the
other hereunder shall be in writing and sent by registered or
certified mail postage prepaid addressed if to Sublessor:
ATLANTIC RICHFIELD COMPANY,
Acting by and through its division,
ARCO Coal Company
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
ATTENTION: XXXXXXX X. XXXXX
MANAGER, PROPERTY MANAGEMENT
or if to Sublessee:
MERCURY MAIL, INC.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
ATTENTION: XXXXX XXXXXXXX
VICE PRESIDENT OF FINANCE
Either party may, by notice in writing, direct that future
notices or demands be sent to a different address.
Sublessor agrees, upon receipt of any notice which may affect or
relate to the tenancy or operation of business in the Sublet
Premises, to forward within five (5) days a copy of such notice
to Sublessee. Sublessor also agrees within such time to give to
Landlord a copy or the substance of each notice or demand which
Sublessor has received from Sublessee.
14.4 The covenants and agreements of this Sublease Agreement shall
bind and inure to the benefit of Sublessor, Sublessee and their
respective successors and assigns, however Sublessee may not
sub-sublet or assign any of its interest in the Sublet Premises
or under this Sublease Agreement, without the prior written
consent of Sublessor and Landlord, which consent, as to
Sublessor, shall not be unreasonably
13
14
withheld; and any such purported assignment or subletting shall
be unauthorized and of no force or effect.
14.5 Each party represents that the only brokers that each dealt with
in respect to this Sublease Agreement are Office Leasing
Advantage, Xxxxxxx Realty, and Xxxxxxx X'Xxxxx Commercial Real
Estate, according to any applicable terms and conditions
Sublessor or Sublessee may have with those brokers.
Each party shall hold harmless the other party from all damages
resulting from any claims that may be asserted against one party
by any broker, finder, or other person with whom the other party
has or purportedly has dealt.
14.6 Notwithstanding any other provision of this Sublease, all of
Sublessor's obligations hereunder shall be subject to Sublessor's
rights and obligations under the Master Lease and in the event of
conflict between Sublessor's obligations hereunder and
Sublessor's rights and obligations under the Master Lease, the
latter shall control. Neither Sublessee nor Sublessor is aware of
any such conflict.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease
Agreement as of the day and year first above written.
ATLANTIC RICHFIELD COMPANY, MERCURY MAIL, INC.
Acting by and through its division,
ARCO Coal Company
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXX X. XXXX
-------------------------------------- ------------------------------
Xxxxxxx X. Xxxxx, Property Manager Xxxx X. Xxxx, President
ARCO Coal Company, a Division
of Atlantic Richfield Company
[STAMP]
14
15
EXHIBIT A
"MASTER LEASE"
15
16
EXHIBIT B
[FLOOR PLAN]
17
CONSENT TO SUBLEASE
(EXHIBIT C TO SUBLEASE AGREEMENT)
This Consent to Sublease (this "Consent") is entered in to effective as
of the 10th day of October, 1996, by and among CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord"), ATLANTIC
RICHFIELD COMPANY, a Delaware corporation, acting by and through its
division ARCO Coal Company ("Sublessor"), and MERCURY MAIL, INC., a Delaware
corporation ("Sublessee").
A. Sublessor is the tenant under that certain Lease Agreement dated
June 22, 1979, (as amended, the "Primary Lease"), wherein Landlord leased
to Sublessor approximately 399,382 rentable square feet (the "Premises")
located on the 26th through the 42nd floors of the building located at 000
00xx Xxxxxx, Xxxxxx, Xxxxxxxx, and commonly known as MCI Tower (the
"Building").
B. Sublessor desires to sublease to Sublessee a portion of the
Premises, which portion consists of approximately 9,064 rentable square feet
(the "Subleased Premises").
C. The terms of the Primary Lease require the consent of Landlord to
any such subletting and Landlord has agreed to grant such consent, subject
to the terms and provisions of this Consent.
NOW, THEREFORE, Landlord hereby consents to the sublease of the
Subleased Premises from Sublessor to Sublessee pursuant to that certain
Sublease Agreement dated as of August 7, 1996 (the "Sublease"), to which
this Consent is attached as Exhibit C and made a part thereof.
1. Definitions. All capitalized terms used herein shall have the same
meanings as set forth in the Primary Lease, unless otherwise provided
herein.
2. Review of Primary Lease. Sublessee acknowledges that it has examined
and is familiar with all of the terms and provisions of the Primary Lease.
3. Sublease Subordination. The Sublease shall be subject and
subordinate at all times to all of the covenants, agreements, terms,
provisions and conditions of the Primary Lease and of this Consent. Neither
Sublessor nor Sublessee shall do or permit anything to be done in connection
with the Sublease or Sublessee's occupancy of the Subleased Premises which
will violate the Primary Lease or this Consent.
4. Further Transfers; Sublease Amendments. Sublessee will not without
the prior written consent of Landlord in each instance, assign the Sublease
or sublet the Subleased Premises or any part thereof. Sublessor and
Sublessee agree, in conformity with the Primary Lease, not to amend the
Sublease without the prior consent of Landlord.
5. Alterations. Sublessee agrees that no alterations, additions or
physical changes will be made in or to the Subleased Premises or any part
thereof without Landlord's prior written consent in each instance.
6. No Release. This Consent by Landlord shall not be deemed in any way
or manner a release of Sublessor from the responsibility and liability for
the payment of rent under the Primary Lease and for compliance with any and
all obligations to be performed by Sublessor as the tenant under the Primary
Lease. The parties hereto agree that Landlord may, after an event of default
by Sublessor under the Primary Lease, in addition to any other remedies
under the Primary Lease or at law, collect directly from Sublessee all rents
due and owing from Sublessee and apply any such rent against sums due to
Landlord by Sublessor as a tenant under the Primary Lease. Further,
Sublessor hereby authorizes and directs Sublessee to make such payments of
rent directly to Landlord upon its receipt of written notice of default from
Landlord.
18
Such collection of any such rents shall not be deemed a waiver of any rights
and remedies of Landlord against Sublessor as the tenant under the Primary
Lease or constitute a novation or release of Sublessor as tenant from the
further performance of its obligations under the Primary Lease. The receipt
by Landlord from Sublessee of any such rents shall be a full and complete
release, discharge and acquittance to such Sublessee to the extent of any
such amount of rent so paid to Landlord.
7. Landlord's Obligations. Notwithstanding anything to the contrary
contained in the Sublease, neither the Sublease nor this Consent shall
enlarge or increase Landlord's obligations or liability under the Primary
Lease or otherwise, and in the event of a default under the Primary Lease
which results in a termination thereof, the Sublease and Sublessee's rights
in the Subleased Premises shall also be terminated.
8. Excess Rents. In the event that circumstances of the Sublease
trigger and make applicable the provisions of Paragraph 17.C. of the Primary
Lease with regard to excess rental payable by Tenant (Sublessor under the
Sublease) to Landlord under the Primary Lease, then Sublessor and Landlord
agree to act in accordance with those provisions of the Primary Lease.
9. Options. Sublessee hereby acknowledges and agrees that Sublessee
shall not have the right to exercise any renewal, expansion or other options
afforded to Sublessor as tenant under the terms and conditions of the
Primary Lease.
10. Brokerage. Sublessor and Sublessee each hereby agree to indemnify,
defend and hold Landlord harmless from and against any and all damage, loss,
cost or expense, including, without limitation, all attorneys' fees and
disbursements, incurred by reason of any claim of or liability to any broker
or other person for commissions or other compensation or charges with
respect to the negotiation, execution and delivery of the Sublease. The
obligations of Sublessor and Sublessee under this paragraph shall survive
the expiration or sooner termination of the Sublease.
11. Amendments. This Consent shall not be amended orally, but only by
an agreement in writing signed by all parties hereto.
12. Binding Effect. This Consent and the provisions hereof shall be
binding on and inure to the benefit of the parties hereto and their
successors and permitted assigns.
13. Recording. Neither this Consent nor the Sublease may be recorded,
without Landlord's prior written consent.
14. Conflicts. In the event of any conflicts between the provisions
of this Consent and the provisions of the Sublease, the provisions of this
Consent shall control.
IN WITNESS WHEREOF, the parties have executed this Consent to be duly
executed as of the day and year first above written.
LANDLORD:
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: CRESCENT REAL ESTATE EQUITIES,
LTD., its General Partner
By /s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Title: Sr. Vice Pres.
-----------------------------
19
SUBLESSOR:
ATLANTIC RICHFIELD COMPANY
By: ATLANTIC RICHFIELD COMPANY, a Delaware
corporation, acting by and through its
division ARCO Coal Company
By: /s/ X. X. XXXXX
---------------------------------
Name: X. X. Xxxxx
---------------------------------
Title: Property Manager
---------------------------------
SUBLESSEE:
MERCURY MAIL, INC.
By: MERCURY MAIL, INC. a Delaware corporation
By: /s/ XXXX XXXX
------------------------------------
Name: Xxxx Xxxx
------------------------------------
Title: President & CEO
----------------------------------
20
EXHIBIT D
CITY CENTER GARAGE PARKING AGREEMENT
This Agreement (sometimes hereinafter, "Parking Lease") is made
effective as of August 1, 1996, between Atlantic Richfield Company, a
Delaware corporation ("ARCO"), acting by and through its division, ARCO Coal
Company, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and Mercury Mail,
Inc., a Delaware corporation ("Tenant").
ARCO is the owner of Condominium Unit I of the Block 142 City Center
Garage, City and County of Denver, Colorado, comprising of four (4) levels
of below ground parking spaces.
This Agreement covers the terms and conditions under which ARCO will
lease to Tenant nine (9) parking spaces in Unit I.
The parties agree as follows:
1. Lease of Space. ARCO leases to Tenant and Tenant leases from ARCO
nine (9) passenger car parking spaces in Unit I, spaces numbered 106 through
114 (the "Spaces"). In addition, ARCO leases to Tenant the non-exclusive
right to use the entrance, exits and passageways of Unit I for passenger and
automobile ingress to and egress from the Spaces.
2. Term. The term of the Parking Lease shall commence on August 1,
1996, and end at midnight December 31, 2001, provided that if for any reason
whatsoever the Sublease Agreement commencing August 1, 1996, between ARCO
and Tenant ("Sublease") is terminated at any date earlier than December 31,
2001, this Parking Lease shall be terminated on the date of termination of
the Sublease.
3. Rental. The monthly rental for the Spaces shall be $105 per space
for the Term set forth in Paragraph 2 above. Any extension of that Term will
be at a fair
1
21
market rental rate at the time of extension, determined in the manner set
forth in the Sublease.
4. Permitted Users. Tenant shall be entitled to have the Spaces used by
its employees, officers and directors, and by its agents and business
invitees (all permitted users of the Spaces are called "Users"). For all
purposes of this Parking Lease, "Business Invitees" shall mean only persons
with whom Tenant has business dealings arising in connection with its
primary business activities.
5. Rules. Tenant and each of the Users shall comply with the rules and
regulations attached as Attachment A and incorporated by reference (as
periodically amended by written notice to Tenant and ARCO).
6. Pass Cards. ARCO shall promptly initially issue to Tenant nine (9)
cards enabling ingress to and egress from Unit I. Also, ARCO may provide
identification emblems, stickers or permits confirming authorization to park
in the areas designated by ARCO. Tenant shall issue to its Users the pass
cards and any other identification issued by ARCO to Tenant.
7. Availability. ARCO shall assure that the Spaces, which are leased to
Tenant hereunder, shall be available for use 24 hours a day, seven (7) days
a week with the use of computerized parking cards. If space(s) are not
required by Tenant and relinquished to ARCO, this Parking Lease will be
amended to reflect the new lesser number of spaces. If relinquished space(s)
are needed by Tenant thereafter, ARCO will return the space(s), if then
available for Tenant's use, within ninety days of written notification by
Tenant.
8. Risk of Loss. Tenant shall neither hold nor attempt to hold ARCO
liable for any injury or damage, caused by fire, water or steam, or by any
repairs, alterations or accident or by any other cause (either proximate or
remote) to any User or to any User's automobile or other personal property
located in Unit I, whether or not the injury or damage was caused by
negligence, except that ARCO shall not be relieved from
2
22
liability for any injury or damage resulting from and, to the extent of, the
negligence or willful misconduct of ARCO or its agents or employees.
9. Indemnity to ARCO. Tenant shall indemnify, defend, and hold harmless
ARCO and its employees from any and all claims resulting from personal
injury or death or damage to property (including the property of ARCO)
related to the Tenant's use of Unit I under this Parking Lease or resulting
from any act or omission or the negligence or misconduct of Tenant,
Tenant's agents, servants or employees, the Users or any other person
entering Unit I under express or implied invitation of Tenant or resulting
from the violation of the provisions of this Parking Lease by any of such
persons and against and from all costs, expenses (including attorney's
fees), damages and other liabilities related to any such claims or their
prosecution but the indemnities in this Paragraph 9 shall not apply to any
liability resulting from, and to the extent of, the willful misconduct or
negligence of ARCO or its employees.
10. No Transfer, Sublease, License, or Assignment. Tenant shall not
sublease, license, or assign any interest in the Parking Lease or transfer
the right to use any of the Spaces except in connection with a permitted
sublease or assignment under the Sublease. Any improper sublease, license,
or assignment or transfer of this Parking Lease by Tenant or of any of
Tenant's rights and privileges hereunder shall cause a termination of this
Parking Lease and a default on the part of Tenant.
11. Surrender. Within five (5) days after expiration or other
termination of this Parking Lease, Tenant shall not allow any use of the
Spaces by its Users and shall promptly return all pass cards for the Spaces
and any other removable identification items issued to it by ARCO. If any of
the pass cards are not returned to ARCO within five (5) days after the
termination of the Parking Lease, ARCO shall be entitled to charge Tenant
for the Spaces that the pass cards represent at the same rate as set forth
in Section 3 until the pass cards are returned.
3
23
12. Notices. All notices or demands required or permitted to be given
to ARCO hereunder shall be in writing, and shall be deemed duly served when
delivered personally to ARCO Coal Company, Attention: Manager, Property
Management, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, or when
deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, addressed to ARCO at ARCO's office at
the above address, or at the most recent address of which ARCO has notified
Tenant in writing. All notices or demands required to be given to Tenant
shall be in writing, and shall be deemed duly served when mailed to Tenant
by certified mail, return receipt requested, to Tenant's office at 000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. Either party shall
have the right to designate, in writing, served as above provided, a
different address to which notice is to be mailed.
This Lease shall be deemed executed as of its effective date.
ATLANTIC RICHFIELD COMPANY MERCURY MAIL, INC.
ACTING BY AND THROUGH ITS DIVISION,
ARCO COAL COMPANY
By: /s/ XXXXXXX X. XXXXX By /s/ XXXX X. XXXX
-------------------------- --------------------------
Xxxxxxx X. Xxxxx, Property Manager Xxxx X. Xxxx, President
ARCO Coal Company, a Division
of Atlantic Richfield Company
[STAMP]
4
24
ATTACHMENT A
RULES AND REGULATIONS
CITY CENTER GARAGE PARKING AGREEMENT
1. Use of the Garage will be restricted to passenger cars, vans (3/4 ton)
and such other vehicles as ARCO, by special arrangements, will permit.
2. The Garage may not be used for dead storage, bulk storage, or for
storage of damaged automobiles, and ARCO shall have the right upon not
less than three (3) days written notice, to engage a tow service for
removal of any vehicle which, without prior written approval of ARCO,
remains in the Garage for a continuous period in excess of five (5)
days. The vehicle owner and/or the vehicle User will be responsible
for all costs associated with such removal and shall indemnify ARCO
against all loss, expenses, or liability in connection therewith.
3. Vehicles shall be carefully parked within and parallel to the striped
lines of each parking stall.
4. Users shall only be permitted to park a vehicle in the Spaces
designated in Paragraph 1 of the City Center Garage Parking Agreement
in which this Attachment A is incorporated by reference. No person
shall be permitted to park a vehicle in any other part of the Garage.
5. Each vehicle parked in the Garage shall prominently display, in such
manner as ARCO shall reasonably direct, the identification emblem,
sticker, or ticket provided by ARCO to the User thereof.
6. If a Pass Card is lost, stolen, or damaged, User or Tenant shall
promptly notify ARCO in writing upon discovery of such loss, theft or
damage, and ARCO will cancel or deprogram it. A new Pass Card will then
be issued to User or Tenant upon payment by User or Tenant of a
twenty-five dollar ($25) replacement fee.
7. IN THE EVENT USER HAS LOST OR FORGOTTEN THE PASS CARD, AN HOURLY TICKET
MAY BE TAKEN FOR ENTRANCE TO THE GARAGE. USER MUST PARK IN UPPER LEVELS
OF THE GARAGE AND WILL BE CHARGED AT THE REGULAR HOURLY RATE TO EXIT
THE GARAGE.
8. User shall drive carefully while in the Garage and comply with all
signs, instructions, and directions posted therein. The Garage entrance
and exit located at California Street is the most accessible to the
ARCO parking area from 6:00 a.m. to 8:00 p.m., Monday through Friday.
5
25
9. User shall assure that his vehicle is locked at all times while it is
parked in the Garage, and shall be solely responsible for all contents
therein.
10. User shall promptly and accurately complete and return the attached
Xxxxxx Information Sheets (Exhibit B) thus enabling ARCO to identify
User's vehicle and to contact User when necessary. Any change in the
information supplied thereon shall be promptly reported to ARCO and, on
request, User shall then complete a new one.
11. ANY VEHICLE PARKED IN AN UNAUTHORIZED AREA WILL BE TICKETED BY THE
DENVER POLICE DEPARTMENT. IF A VEHICLE CANNOT BE IDENTIFIED FROM THE
XXXXXX INFORMATION SHEETS ON FILE, IT WILL BE REMOVED FROM THE GARAGE
BY A TOW SERVICE THREE DAYS AFTER IT HAS BEEN TICKETED.
12. The Garage shall be open and operational for Pass Card access 24 hours
per day, seven (7) days per week.
13. Use of Pass Card for entrance to or exit from Garage is restricted to
registered vehicles only.
14. Only one vehicle is permitted in the Garage at any one time per Pass
Card.
15. ARCO SHALL NOT BE LIABLE AT ANY TIME OR UNDER ANY CIRCUMSTANCES FOR
ANY MALFUNCTION, FAILURE, OR UNAVAILABILITY OF ANY ELECTRICAL,
MECHANICAL, OR OTHER FACILITIES OR EQUIPMENT IN THE GARAGE, OR FOR ANY
LOSS, DAMAGE, EXPENSE, OR INCONVENIENCE OF ANY NATURE (WHETHER DIRECT
OR INDIRECT) RESULTING THEREFROM OR RELATED THERETO. Notwithstanding
the foregoing, ARCO shall be liable for ARCO's gross negligence in
connection with the installation or operation of facilities which
results in loss or damage to any User.
16. All notices required or desired to be given hereunder at any time shall
be deemed sufficient if delivered in writing either personally or by
ordinary mail to the party sought to be notified, or to any duly
authorized representative thereof.
17. THE CITY CENTER GARAGE IS DESIGNATED NO-SMOKING.
6
26
FIRST AMENDMENT TO SUBLEASE AGREEMENT
This First Amendment to Sublease Agreement is entered into and effective
as of the 13th day of December, 1996, by ATLANTIC RICHFIELD COMPANY, a
Delaware corporation, acting by and through its division, ARCO Coal Company,
000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 ("Sublessor") and MERCURY
MAIL, INC., a Delaware corporation, ("Sublessee").
R E C I T A L S:
Under Sublease Agreement dated August 7, 1996, ("Sublease"), Sublessor
sublet to Sublessee approximately 9,064 rentable square feet located on the
28th floor (the "Sublet Premises") in the MCI Tower.
Sublessor and Sublessee desire to amend the Sublease to add approximately
7,392 rentable square feet of contiguous space ("Expansion Space") to the
Sublet Premises, as delineated on the attached Exhibit B-1.
AGREEMENT:
In consideration of the rent to be paid hereunder, the terms and
conditions hereof, and the mutual benefits to be derived, the parties agree
that the Sublease shall be amended as follows:
ARTICLE 1. TERM
1.1 The term for the Expansion Space will be December 9, 1996, through the
end of the Sublease Term.
ARTICLE 3. BASE RENT AND SERVICES
3.1 The monthly rent payment will be increased in the amount of Five
Thousand Two Hundred Thirty-Six Dollars ($5,236.00) to include the
Expansion Space. The increased Base Rent is payable monthly, in
advance, for a monthly total for both the original Sublet Premises and
for the Expansion Space, (total rentable square feet = 16,456) in the
amount of Eleven Thousand Six Hundred Fifty-Six Dollars and Thirty-
Three Cents ($11,656.33), beginning February 1, 1997, through the end
of the Sublease Term. Until February 1, 1997, the existing rent in the
amount of $6,420.33, shall be paid.
3.2 In addition to the Base Rent, Sublessee is subject to the additional
Rent provision of Article 3.2 of the Sublease Agreement with regard to
the Expansion Space, to the extent that the future Operating Expenses
allocated to the Sublet Premises, including the Expansion
27
Space or any portion thereof, exceed the 1996 actual Operating Expenses
allocated to the Sublet Premises, including the Expansion Space.
ARTICLE 4. SECURITY DEPOSIT
4.1 Sublessee, upon execution of this First Amendment, will increase the
security deposit with Sublessor by Twenty-Two Thousand Nine Hundred
Fifty-Six Dollars ($22,956.00), to be held without interest by
Sublessor during the Term of the Sublease.
ARTICLE 5. SUBLET PREMISES
The Expansion Space, consisting of 7,392 rentable square feet, is described
in Exhibit B-1, attached hereto and made a part hereof. Sublessor sublets
the Expansion Space to the Sublessee in its "as is" condition. The Sublet
Premises (9,064 rentable square feet) and the Expansion Space (7,392
rentable square feet) may hereinafter sometimes be referred to collectively
as "Expanded Sublet Premises" (16,456 rentable square feet). Sublessee
shall, at its own cost and expense, make any and all improvements to the
Expansion Space subject to the prior approval of Sublessor and Landlord and
in compliance with the following:
5.1 In connection with the performance of all work by Sublessee's
contractors, Sublessee shall assume full responsibility therefor, and
for all Sublessee's and or Sublessee's contractors' property,
equipment, materials, tools or machinery placed or stored in the Sublet
Premises during the completion of the Sublessee finish work.
5.2 Sublessee shall cause Sublessee's contractors to: (i) conduct their
work in such a manner so as not to interfere with any other
construction occurring on or in the Building or any other sublessees or
tenants of the Building; (ii) comply with all reasonable rules and
regulations relating to the construction activities in or on the
Building, as may be promulgated from time to time by Landlord for the
Building, (iii) maintain such insurance in force and effect as required
by Sublessor, but in any event, not less than that required by
applicable law; (iv) deliver to Sublessor such assurances or
instruments to evidence their compliance or agreement to comply with
the provisions of this paragraph as may be reasonably requested by
Sublessor.
5.3 Sublessee shall keep the Sublet Premises free and clear of all liens,
encumbrances and claims of contractors, subcontractors, materialmen,
laborers and others, and Sublessee shall indemnify and hold harmless
Sublessor and Landlord from and against any and all
28
losses, damage, costs (including costs of suit and attorney's fees),
liabilities, or causes of action arising out of, or resulting from,
performance of or payment for the Sublessee's finish work by Sublessee's
contractors, including, but not limited to, mechanics', materialmen's,
laborers' or other liens or claims (and all costs or expenses associated
therewith, including reasonable attorneys' fees,) asserted, filed or arising
out of any such work. All materialmen, contractors, artisans, mechanics,
laborers and other parties hereafter contracting with Sublessee for the
furnishing of any labor, services, materials, supplies or equipment with
respect to any portion of the Sublet Premises are hereby charged with notice
that they must look solely to Sublessee for payment for same. Without
limiting the generality of the foregoing, Sublessee shall repair or cause to
be repaired at its expense all damage caused to the Sublet Premises or the
Building by the Sublessee's contractors, their subcontractors or their
employees. Further, Sublessor shall have the right, prior to the date
Sublessee commences any work in the Sublet Premises, to post notices of
nonliability thereon, or to cause Sublessee to post and maintain the same,
all in accordance with Colorado Revised Statues, as the same may be amended.
5.4 Sublessee agrees to submit to Sublessor copies, consisting of one
reverse mylar sepia and two blueprint copies, of the record drawings
with approved changes to the final working drawings shown thereon upon
completion of all work by Sublessee's contractors.
Except as specifically modified or amended herein, all of the other
terms and conditions of the Sublease Agreement shall remain in full force
and effect, and, as hereby amended, the parties hereby ratify and confirm
the Sublease Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Sublease Agreement as of the day and year first above written.
ATLANTIC RICHFIELD COMPANY, MERCURY MAIL, INC.
Acting by and through its division,
ARCO Coal Company
BY: /s/ XXXXXXX X. XXXXX BY: /s/ XXXXX XXXXXXXX,
-------------------------------- -----------------------------
Xxxxxxx X. Xxxxx, Property Manager Xxxxx Xxxxxxxx, CFO
ARCO Coal Company, a Division
of Atlantic Richfield Company
[STAMP]
29
EXHIBIT B-1
[FLOOR PLAN]
30
SECOND AMENDMENT TO SUBLEASE AGREEMENT
This Second Amendment to Sublease Agreement is entered into as of the 29th
day of June, 1998, by ATLANTIC RICHFIELD COMPANY, a Delaware corporation
("Sublessor") and Mercury Mail, Inc. now known as InfoBeat Inc., a Delaware
corporation, ("Sublessee").
RECITALS:
A. Under the Sublease Agreement dated August 7, 1996 as amended by the First
Amendment to Sublease dated December 13, 1996 (collectively, the "Sublease"),
Sublessor sublet to Sublessee approximately 16,456 rentable square feet (the
"Sublet Premises") located on the 28th floor in the MCI Tower.
B. Sublessor and Sublessee desire to amend the Sublease to add approximately
3,825 rentable square feet of space on the 28th floor ("Additional Space") to
the Sublet Premises, as delineated on the attached Exhibit A. THIS SECOND
AMENDMENT WILL NOT BE EFFECTIVE UNTIL THE CURRENT SUBLESSEE, DUMLER, MEYER,
XXXXXX, INC. HAS EXECUTED A TERMINATION AGREEMENT AND SURRENDERED POSSESSION OF
THE ADDITIONAL SPACE TO SUBLESSOR.
C. BOTH PARTIES UNDERSTAND THAT THE PRIOR WRITTEN CONSENT OF LANDLORD IS
REQUIRED TO PERMIT SUCH SUBLETTING. THE PARTIES AGREE TO CONTEMPORANEOUSLY
EXECUTE THE CONSENT TO SUBLEASE FORM ATTACHED HERETO AS EXHIBIT C.
AGREEMENT:
In consideration of the rent to be paid hereunder, the terms and
conditions hereof, and the mutual benefits to be derived, the parties agree
that the Sublease is hereby amended as follows.
ARTICLE 1. TERM
1.1 The term for the Additional Space will be July 20, 1998 through the end of
the Sublease Term.
ARTICLE 2. BASE RENT AND SERVICES
2.1 Effective July 20, 1998 through December 31, 1998, the monthly Base Rent
will be increased in the amount of $2,936.67 so that the total monthly Base
Rent due under the Sublease shall be $14,593.00.
2.2 Effective January 1, 1999 through the end of the Sublease Term, the
monthly Base Rent for the Additional Space will be $3,028.12 so that the
total monthly Base Rent due under the Sublease shall be $14,684.45.
1
31
2.3 Effective July 20, 1998 through December 31, 1998, Additional Rent shall
be increased in the amount by which annual Operating Expenses, defined
under Paragraph 11 A(8) of the Master Lease, allocable to the Additional
Space on a prorata basis, exceeds the 1993 actual Operating Expenses
allocable to the Additional Space. Sublessee shall pay the estimated
Additional Rent based on Landlord's estimate as required in Paragraph 11 B
of the Master Lease. The Landlord's notice of accounting of the Operating
Expenses shall be sufficient accounting under the Sublease.
2.4 Effective January 1, 1999 through the end of the Sublease Term, Additional
Rent shall be increased in the amount by which the annual Operating
Expenses, defined under Paragraph 11 A(8) of the Master Lease, allocable
to the Additional Space on a prorata basis, exceeds the 1998 actual
Operating Expenses allocable to the Additional Space. Sublessee shall pay
the estimated Additional Rent based on Landlord's estimate as required in
Paragraph 11 B of the Master Lease. The Landlord's notice of accounting of
the Operating Expenses shall be sufficient accounting under the Sublease.
ARTICLE 3. SUBLET PREMISES
The Additional Space, consisting of 3,825 rentable square feet, is described in
Exhibit B-1, attached hereto and made a part hereof. Sublessor sublets the
Additional Space to the Sublessee in its "as is" condition. The Sublet Premises
(16,456 rentable square feet) and the Additional Space (3,825 rentable square
feet) may hereinafter sometimes be referred to collectively as "Expanded Sublet
Premises" (20,281 rentable square feet). Sublessee shall, at its own cost and
expense, make any and all improvements to the Additional Space subject to the
prior approval of Sublessor and Landlord and in compliance with the following:
3.1 In connection with the performance of all work by Sublessee's contractors,
Sublessee shall assume full responsibility therefor, and for all
Sublessee's and or Sublessee's contractors' property, equipment,
materials, tools or machinery placed or stored in the Sublet Premises
during the completion of the Sublessee finish work.
3.2 Sublessee shall cause Sublessee's contractors to: (i) conduct their work
in such a manner so as not to interfere with any other construction
occurring on or in the Building or any other sublessees or tenants of the
Building; (ii) comply with all reasonable rules and regulations relating
to the construction activities in or on the Building, as may be
promulgated from time to time by Landlord for the Building; (iii) maintain
such insurance in force and effect as required by Sublessor, but in any
event, not less than that required by applicable law; (iv) deliver to
Sublessor such assurances or instruments to evidence their compliance or
agreement to comply with the provisions of this paragraph as may be
reasonable requested by Sublessor.
2
32
3.3 Sublessee shall keep the Sublet Premises free and clear of all liens,
encumbrances and claims of contractors, subcontractors, materialmen,
laborers and others, and sublessee shall indemnify and hold harmless
Sublessor and Landlord from and against any and all losses, damage, costs
(including costs of suit and attorney's fees,) asserted, filed or arising
out of any such work. All materialmen, contractors, artisans, mechanics,
laborers and other parties hereafter contracting with Sublessee for the
furnishing of any labor, services, materials, supplies, or equipment with
respect to any portion of the Sublet Premises are hereby charged with
notice that they must look solely to Sublessee for payment for same.
Without limiting the generality of the foregoing, Sublessee shall repair or
cause to be repaired at its expense, all damage caused to the Sublet
Premises or the Building by the Sublessee's contractors, their
subcontractors, or their employees. Further, Sublessor shall have the
right, prior to the date Sublessee commences any work in the Sublet
Premises, to post notices of nonliability thereon, or to cause Sublessee to
post and maintain the same, all in accordance with Colorado Revised
Statutes, as the same may be amended.
3.4 Sublessee agrees to submit to Sublessor copies, consisting of one reverse
mylar sepia and two blueprint copies, of the record drawings with approved
changes to the final working drawings shown thereon upon completion of all
work by Sublessee's contractors.
Except as specifically modified or amended herein, all of the other terms
and conditions of the Sublease Agreement shall remain in full force and effect,
and, as hereby amended, the parties hereby ratify and confirm the Sublease
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Sublease Agreement as of the day and year first above written.
MERCURY MAIL, INC. NOW KNOWN AS
ATLANTIC RICHFIELD COMPANY INFOBEAT INC.
BY: /s/ XXXXX X. XxXXXXXX BY: /s/ XXXXXXX X. XXX XXXXXXX XX.
---------------------- ------------------------------
XXXXX X. XxXXXXXX Xxxxxxx X. Xxx Xxxxxxx Xx. CEO
3
33
EXHIBIT A
[FLOOR PLAN]
