Exhibit 10.13
SUBLEASE AGREEMENT
BETWEEN
FIDELITY CORPORATE REAL ESTATE, LLC, TENANT/SUBLESSOR
AND CUSTOMTRACKS OPERATING CORPORATION, SUBLESSEE
1. PARTIES
This Sublease ("Sublease") is entered into this 12th day of February, 1999 by
and between Fidelity Corporate Real Estate, LLC, as successor in interest to
Fidelity Properties, Inc. ("Tenant/Sublessor"), having an address at 0 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and CustomTracks Operating Corporation,
a Delaware corporation ("Sublessee"), having an address at One Galleria
Tower, 00000 Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, under the lease
dated February 8, 1994, as amended, entered into by The Southland
Corporation, as landlord ("Landlord"), and Fidelity Properties, Inc., as
Tenant, a copy of said lease with any Amendments thereto being attached
hereto and designated as Exhibit A and hereinafter called the "Lease".
2. PROVISIONS CONSTITUTING SUBLEASE
This Sublease is subject to all of the terms and conditions of the Lease in
Exhibit A, and Sublessee assumes and agrees to perform the obligations of
Tenant in said Lease, to the extent, but only to the extent, said terms and
conditions are applicable to the Sublease Premises (as hereinafter defined)
subleased pursuant to this Sublease. All of the terms and conditions of the
Lease in Exhibit A are incorporated herein as terms and conditions of this
Sublease (except as otherwise provided herein, with each reference therein as
modified in this Sublease Agreement to Landlord and Tenant to be deemed to
refer to Tenant/Sublessor and Sublessee) and along with all of the following
paragraphs set out in this Sublease, shall be the complete terms and
conditions of this Sublease. In the event of the termination of
Tenant/Sublessor's interest as Tenant under the Lease for any reason this
Sublease shall terminate simultaneously therewith. Sublessee shall not commit
or permit to be committed on the Sublease Premises any act or omission which
shall violate any term or condition of the Lease. Tenant/Sublessor hereby
covenants and agrees that it shall at all times satisfy and comply with all
of the terms and provisions of the Lease.
3. PREMISES
Tenant/Sublessor subleases to Sublessee and Sublessee subleases from
Tenant/Sublessor, the Sublease Premises described as a portion of the 23rd
floor consisting of approximately 29,131 rentable square feet (the "Sublease
Premises"), as shown on Exhibit B attached hereto, in the building known as
Cityplace Center (the "Building") located at 0000 X. Xxxxxxx, Xxxxxx, Xxxxxx
Xxxxxx, Xxxxx, which constitutes a portion of the Premises covered by the
Lease. Sublessee shall also be entitled to Tenant/Sublessor's non-exclusive
rights to the use of eighty-seven (87) covered parking spaces in the parking
garage of the Building previously allotted to Tenant/Sublessor, at no
additional charge, and to the use of the cafeteria and conference facilities
in the Building, but only to the extent Tenant/Sublessor is entitled to the
use of the same pursuant to Section 4.15 of the Lease.
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4. TERM
The term (the "Term") of this Sublease shall commence on the earlier to occur
of (i) the date on which Sublessee commences its business operations in the
Sublease Premises (other than for construction and moving in) and (ii) May 1,
1999 (the "Commencement Date") and terminate on September 30, 2004 (the
"Expiration Date"), unless sooner terminated as hereinafter provided.
Notwithstanding the foregoing, Sublessee shall be given exclusive possession
of the Sublease Premises on the Effective Date for the purpose of
constructing leasehold improvements in the Sublease Premises. Such occupancy
by Sublessee prior to the Commencement Date shall be subject to all the terms
and conditions of this Sublease (other than the payment of Base Rental or
Expense Rent, the obligation for payment of which shall commence on the
Commencement Date).
5. BASE RENTAL
Commencing as of the Commencement Date, Sublessee shall pay to
Tenant/Sublessor without deduction, set-off, prior notice or demand, as "Base
Rental", in advance on the first (1st) day of each month in lawful money of
the United States of America and continuing through the Expiration Date, the
annual sum of $466,098.08 (i.e., $16.00 per rentable square foot) in equal
monthly amounts of $38,841.34 per month. Monthly rental for my partial month
shall be prorated on a daily basis. Rent shall be paid to Tenant/Sublessor at
0 Xxxxx Xxxxxx, Xxxxxx, XX 00000, or at such other place or places as
Tenant/Sublessor may from time to time direct. Upon the execution of this
Sublease by the Sublessee, Tenant shall pay and deliver the first month's
rent with the Sublease.
6. BASE RENTAL ADJUSTMENTS
Sublessee shall pay its pro rata share of Expenses, as defined in Section 3.7
of the Lease, in excess of the Expenses for calendar year 1999 (which
Expenses for calendar year 1999 shall be grossed up to reflect full
occupancy), such amounts to be paid to Sublessor by the date Expense Rent is
due under Section 3.2 of the Lease, as amended. To the extent Landlord has
provided Tenant/Sublessor with such information, Sublessor shall provide
Sublessee with reasonable documentation of such Expenses. Sublessee's pro
rata share, for purposes of this Paragraph 6 and Paragraph 7 of this
Sublease, shall be a fraction the numerator of which is the number of
rentable square feet of the Sublease Premises and the denominator of which is
the number of rentable square feet of the Premises covered by the Lease. If
Sublessor receives a refund of Expense Rent from Landlord, Sublessor shall
promptly pay Sublessee its proportionate share of such refund insofar as such
refund relates to the Sublease Premises. Controllable Expenses shall be
subject to the cap set forth in Section 3.2 of the Lease, as amended.
7. ELECTRICITY
Commencing, as of the Effective Date and continuing for the Term, the
Sublessee shall pay its pro rata share of electrical charges payable by
Sublessor pursuant to Section 3.3 of the Lease, such amounts to be paid to
Sublessor by the date they are due under the Lease. To the extent landlord
provides Tenant/Sublessor with the same, Sublessor shall provide Sublessee
with reasonable back-up documentation of the amount due.
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8. HEATING AND AIR-CONDITIONING
The Sublessee shall reimburse Sublessor for any after hours charge by the
Landlord to the Sublessor for after hours heat and air-conditioning used by
the Sublessee in the Sublease Premises. The charge to the Sublessee shall be
equal in amount to the actual amount charged to the Sublessor by the Landlord
for such after hours heat and air-conditioning, plus Sublessor's actual
administrative fee incurred in connection with such request by Sublessee, and
the same shall be due and payable by the Sublessee to the Sublessor within
ten (10) days of receipt of the invoice for the same.
9. LEASEHOLD IMPROVEMENTS
Sublessor agrees to pay Sublessee an allowance of up to $6.00 per rentable
square foot for demolition, construction (including taxes thereon), space
planning, and design and document fees, payment to be made within thirty (30)
days of Sublessor receiving the evidence and other documentation specified in
Section 4.2(d) of Addendum No. 1 of the Lease, but in any event no earlier
than the Commencement Date.
The Sublease Premises are being delivered to the Sublessee on an "as is,
where is" basis (excluding carpeting and doors which are currently installed
therein). Sublessee improvements will be the sole cost of the Sublessee,
except as provided in the preceding paragraph, and subject to the approval of
the Sublessor and any approvals required by the Lease. As part of the
Sublessee's improvements, Sublessee shall, at its sole cost and expense,
install a separate electric meter to measure Sublessee's consumption of
electricity in the Sublease Premises.
10. INSURANCE
Sublessee, regarding this Sublease, shall comply with Article VI - Risk
Management of the Lease except that the Sublessee shall name the Sublessor in
the Sublessee's insurance policies where Article VI provides that the
Sublessor is to name the Landlord.
11. SERVICE TO BE FURNISHED BY LANDLORD
Sublessee shall be entitled to the services to which Tenant/Sublessor is
entitled under Section 4.2 of the Lease insofar as they relate to the
Sublease Premises. Sublessor shall use reasonable efforts to cause the
Landlord to perform all of its obligations under the lease referred to in
Exhibit A for the benefit of Sublessee insofar as they relate to the Sublease
Premises. Should the Landlord fail to perform its obligations and said
failure affects the Sublessee, Sublessee shall give notice to Sublessor of
said failure. Should such failure continue ten (10) days after the date of
notice and the Landlord has not cured said failure or commenced to cure said
failure, Sublessee may without the consent of the Sublessor contact Landlord
regarding said failure. If Tenant/Sublessor receives a rental abatement
pursuant to the last paragraph of Section 4.2 of the Lease, then insofar as
such abatement relates to the Sublease Premises, the Sublessee shall be
entitled to a proportionate abatement of rent hereunder.
Notwithstanding anything to the contrary contained herein, the parties'
obligations hereunder are expressly conditioned on obtaining Landlord's
written consent to the subletting of the Premises on the terms and conditions
contained in this Sublease. Tenant/Sublessor shall furnish Landlord with a
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Consent to Sublease in the form attached as Exhibit C. This consent shall
apply only to this Sublease and shall not be deemed to be a consent to any
other Sublease.
The consent of the Landlord in the form required herein shall be a condition
precedent to the performance of the parties under this Sublease. If such
consent is not obtained within thirty (30) days after the date this Sublease
is executed by both Sublessee and Sublessor, the parties shall have no
further obligations under this Sublease. The term "Effective Date" as used
herein shall mean the later to occur of (i) the date on which Sublessor and
Sublessee have executed this Sublease, and (ii) the date on which Landlord
has given its written consent to this Sublease.
12. INDEMNITY
Sublessee shall perform and observe the terms and conditions to be performed
on the part of Tenant under the Lease with respect to the Sublease Premises,
except for the payment of rent and other charges, and shall indemnify Tenant
and Landlord against all claims, damages, costs and expenses arising out of
Sublessee's failure to perform any such terms or conditions, subject however
to all of the terms and conditions of this Sublease, provided, however, that
Sublessee shall be relieved of any obligation to indemnify Tenant or Landlord
to the extent of insurance proceeds actually received by them.
13. REMEDIES
If Sublessee shall default hereunder and not cure within the times permitted
for cure under the Lease, Tenant/Sublessor shall have all remedies against
Sublessee provided to Landlord under the Lease. If Sublessor shall default
hereunder and not cure within the times permitted for cure under the Lease,
Sublessee shall have all remedies against Sublessor provided to Tenant under
the Lease.
14. NOTICES
Notices required or desired to be given hereunder shall be in writing and
given either upon personal delivery or by nationally recognized overnight
courier, or by United States mail, certified mail, return receipt requested,
addressed to the parties at the addresses set forth above. Notices deposited
in the mail or otherwise given in the manner described above shall be
effective on receipt. Any party may change its address for notice by giving
notice in the manner hereinabove provided.
15. SIGNAGE
The cost of signage shall be the sole cost of the Sublessee and the approval
of the same shall be at the sole consent of the Sublessor which consent shall
not be unreasonably withheld or delayed. At the expiration of this Sublease,
Sublessee, at its expense shall remove the sign and repair the damage, if
any.
16. BROKERS
Sublessee shall defend, indemnify and hold Landlord and Tenant/Sublessor
harmless from all damages, judgments, liabilities and expenses (including
attorney's fees) arising from any claims or demands of any broker, agent or
finder with whom Tenant has dealt, other than Xxxxxx International and the
Staubach Company, whose commission, if any, shall be the responsibility of
Tenant/Sublessor, for any commission or fee alleged to be due in connection
with its participation in
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the procurement of Sublessee or the negotiation with Sublessee of this
Sublease, other than a broker with whom either Landlord or Tenant/Sublessor
has signed a written agreement relating to this Sublease.
17. NONAPPLICABILITY OF PROVISIONS
It is expressly understood by and acknowledged by Sublessee, that Sublessee
shall have no rights under Section 2.6 "Cancellation Option", Section 3.9
"Atrium Refurbishment and Allowance," Section 3.10 "Refurbishment Allowance"
and Section 4.5(a) regarding a monument sign, Section 4.10 "Roof Rights",
Section 4.11, Section 4.12 "Emergency Backup", Section 4.2 "Construction
Allowance" (except for subparagraphs (b) and (d) of said Section 4.2), and
Article VI "Other Allowances" in Addendum Xx. 0 "Xxxx Xxxxxx", Xxxxxxxx Xx. 0
"Options to Extend", Addendum No. 4 "Expansion Options", and Addendum No. 5
"Right of First Offer" of the Lease. Sublessee expressly understands and
agrees that any rights of expansion, rights to extend or renew, rights to
tenant allowance (except as contained in Paragraph 9 of this Sublease), and
rights to rent credits and rent abatement are not applicable to Sublessee.
18. ASSIGNMENT AND SUBLET
Sublessee shall have no rights to assign or sublease all or part of the
Sublease Premises without the prior approval of Landlord and
Tenant/Sublessor, which in the case of Tenant/Sublessor shall be subject to
the terms and conditions of the Lease. For the purposes of this paragraph 20,
the term "part" in the preceding sentence shall mean consisting of no less
than fifty percent (50%) of the rentable square footage of the Sublease
Premises, of this paragraph 20, the term "part" in the preceding sentence
shall mean consisting of no less than fifty percent (50%) of the rentable
square footage of the Sublease Premises, Sublessee hereby acknowledging that
it shall have no rights whatsoever to sublease less than 50% of the Sublease
Premises in any one instance.
In the event Sublessee desires to assign this Sublease or sublet any portion
or all or the Sublease Premises, Sublessee shall notify Tenant/Sublandlord in
writing of Sublessee's intent to so assign this Sublease or sublet the
Sublease Premises and the proposed effective date of such subletting or
assignment, and shall request in such notification that Landlord and
Sublessor consent thereto. Except in the event of an assignment or subletting
to an Affiliate (defined hereinbelow), Sublessor may terminate this Sublease
in the case of a proposed assignment, or suspend this Sublease pro tanto for
the period and with respect to the space involved in the case of a proposed
subletting, by giving written notice of termination or suspension to
Sublessee within thirty (30) day after receipt of such notification, with
such termination or suspension to be effective as of the effective date of
such assignment or subletting. If Sublessor does not so terminate or suspend
within said thirty (30) days, Sublessor's consent shall not be unreasonably
withheld to an assignment or to a subletting, provided that the assignee or
subtenant shall use the Sublease Premises only for general office use, and
further provided, with respect to a subletting, that after such subletting
the initial Sublessee named herein occupies at least fifty (50%) percent of
the rentable floor area of the Sublease Premises.
If for any assignment or sublease consented to by Sublessor hereunder
Sublessee receives rent or other consideration, either initially or over the
term of the assignment or sublease, in excess of the rent called for
hereunder, or in case of sublease of part, in excess of such rent fairly
allocable to the part, after appropriate adjustments to assure that all other
payments called for hereunder are appropriately taken into account and after
deduction for reasonable expenses of Sublessee in connection with the
assignment or sublease, to pay to Sublessor as additional rent the excess of
each
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such payment of rent or other consideration received by Sublessee promptly
after its receipt. Notwithstanding anything to the contrary herein contained,
Sublessor's termination right pursuant to the second paragraph of this
Paragraph 18 shall have no applicability and Sublessor's consent shall not be
unreasonably withheld to an assignment or subletting to any entity
controlling, controlled by or under common control with Sublessee (an
"Affiliate"), provided that such Affiliate shall use the Sublease Premises
only for the use specified in Paragraph 21 below.
19. ALTERATIONS BY TENANT
All rights of approval and consent of Landlord under Section 4.4 of the Lease
shall also be deemed applicable to Tenant/Sublessor.
20. ESTOPPEL CERTIFICATES
Sublessor shall, upon the request of the Sublessee, and Sublessee shall, upon
request of Tenant/Sublessor or any mortgagee of Tenant/Sublessor, without
additional consideration, deliver an Estoppel Certificate, consisting of
reasonable statements required by Tenant/Sublessor, Sublessee or any
mortgagee, or any assignee of Sublessee's interest in this Sublease or the
Sublease Premises or Tenant/Sublessor's interest in the Sublease Premises,
which statements may include but shall not be limited to the following.
A. This Sublease is in full force and effect, with rental paid through the
requested date;
B. The Sublease has not been modified or amended;
C. Tenant/Sublessor is not in default and Tenant/Sublessor has fully
performed all of Tenant/Sublessor's obligations hereunder; and
D. Sublessee is not in default and Sublessee has fully performed all
Sublessee's obligations hereunder.
If Sublessee or Sublessor is unable to make any of the foregoing statements
because the same is untrue, Sublessee or Sublessor shall with specificity
state the reason why such statement is untrue. The requested party shall, if
requested by requesting party or any such mortgagee or assignee, deliver to
requesting party a fully executed instrument in form reasonably satisfactory
to the requesting party. The requested party agrees to furnish the Estoppel
Certificate to the requesting party within ten (10) days of the requesting
party's request for same.
21. USE OF SUBLEASE PREMISES
The Sublease Premises shall be used by Sublessee for office purposes.
The balance of this page has been intentionally left blank.
Signatures appear on the next page.
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IN WITNESS WHEREOF, the following parties have executed this Sublease as of the
date first written above.
TENANT/SUBLESSOR:
ATTEST: FIDELITY CORPORATE REAL ESTATE, LLC
By: Fidelity Corporate Real Estate, Inc.
By: By: /s/ Xxxxxx X. Xxxx, President
------------------------------- -------------------------------------
Name:
-----------------------------------
SUBLESSEE:
ATTEST: CUSTOMTRACKS OPERATING CORPORATION
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------- -------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
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EXHIBIT C
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CONSENT OF LESSOR
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The undersigned, being the current Landlord under the Lease, hereby: (a)
consents to the foregoing Sublease; and (b) acknowledges that there is no event
of default (nor any condition that with the giving of notice, or the passage of
time, or both, could result in an event of default) on the part of Tenant under
the Lease.
THE SOUTHLAND CORPORATION
By:
---------------------------------
Name:
Title:
