EXHIBIT 10.6
SUBLEASE
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THIS SUBLEASE ("Sublease") is made as of May , 2000, by DELUXE FINANCIAL
SERVICES, INC., a Minnesota corporation ("Sublandlord") and eFUNDS CORPORATION,
a Delaware corporation ("Subtenant").
BACKGROUND:
A. Shoreview Associates LLC, a Delaware limited liability company, as
Landlord ("Prime Landlord"), and Sublandlord, as Tenant, have entered into that
certain Lease dated as of September 30, 1999, attached hereto as Exhibit A (the
"Prime Lease"), regarding certain premises (the "Prime Lease Premises") in the
building known as Shoreview Corporate Center, 1050 and 0000 Xxxx Xxxxxx Xxxx X,
Xxxxxxxxx, Xxxxxxxxx, all as described in the Prime Lease.
B. Sublandlord and Subtenant have agreed to enter into a sublease as to the
portion of the Prime Lease Premises shown on the attached Exhibit B, containing
approximately 45,956 rentable square feet (as defined in the Standard Method for
Measuring Floor Area in Office Buildings, ANSI/BOMA Z65.1-1996) in the Building,
together with the non-exclusive rights to use the Common Area (collectively, the
"Sublease Premises"), upon the terms and conditions set forth below.
C. All capitalized terms used in this Sublease but not defined shall have
the meanings ascribed to them in the Prime Lease.
AGREEMENT:
1. Sublease. Subtenant agrees to sublease from Sublandlord, and Sublandlord
agrees to sublease to Subtenant, the Sublease Premises upon the terms and
conditions set forth below.
2. Sublease Term. The term of this Sublease as the same may be extended
("Sublease Term") will commence on the date of the initial offering of shares of
Subtenant to the public (the "Commencement Date") and will expire on September
30, 2001. Subtenant has two extension options to extend the Sublease Term for
six months each, if Subtenant notifies Sublandlord in writing at least six
months prior to the expiration of the Sublease Term, as the same may have been
previously extended. Subtenant may not exercise its second extension option for
the second extension term if it has not exercised its first extension option for
the first extension term. If Subtenant exercises any of its extension options,
this Sublease will be in full force and effect during the Sublease Term, as so
extended, subject to all of the terms and conditions of this Sublease.
3. Use. Subtenant shall use the Sublease Premises for any use permitted by
the Prime Lease, and for no other purpose.
4. "As Is" Sublease; Alterations. Subtenant agrees to accept the Sublease
Premises in "as is" condition, "with all faults". Subtenant shall be responsible
for the installation and cost of any and all improvements, alterations or other
work required on or to the Sublease Premises (excluding any allocable portion or
right to the use of the Common Area included within the definition of "Sublease
Premises") required to comply with the Americans with Disabilities Act (the
"ADA") and all other applicable laws, rules and regulations (collectively, the
"Laws"). Sublandlord shall be responsible for the installation and cost of any
and all improvements, alterations or other work required on or to the Common
Area required to comply with the Laws, except to the extent modifications to the
Common Area are required under the ADA to accommodate one or more of Subtenant's
actual employees, the cost of which shall be borne by Subtenant. Subtenant shall
make or install no other improvements, alterations or work on or to the Sublease
Premises or on or to the property and/or Building of which the Sublease Premises
are a part without the prior written consent of Sublandlord (which may not be
unreasonably withheld by Sublandlord, provided Prime Landlord consents thereto).
5. Rent. Subtenant will pay monthly gross rent (the "Rent") for the
Sublease Premises in advance, without abatement, deduction or setoff, on the
first day of the first month following the Commencement Date and on the first
day of each calendar month thereafter during the Sublease Term, in the amount of
$57,445.00 per month (i.e. $15.00 per rentable square foot per year). The Rent
is a "gross" rent inclusive of all operating expenses and Subtenant shall have
no further monetary obligations to Sublandlord under this Sublease, including,
without limitation, insurance, real estate taxes and special assessments, or
operating expenses of the Building and/or the Common Area, or costs for
utilities, except as specifically provided herein.
6. Parking. Subtenant may, during the Sublease Term, use up to 133 of the
unreserved parking spaces located in the Common Area on a non-exclusive basis,
upon the same terms and conditions as are set forth in the Prime Lease.
Subtenant may use the designated visitors parking spaces located on the north
side of the facility for tenant's visitors, along with all other tenants of the
facility, on a non-exclusive basis.
7. Performance of Prime Lease. Except as otherwise set forth in this
Sublease, for the duration of the Sublease Term, Subtenant assumes and agrees to
keep, obey and perform all of the terms, covenants and conditions of Sublandlord
as tenant under the Prime Lease with respect to the Sublease Premises.
Sublandlord agrees to pay all rent and other expenses required to be paid by it
under the Prime Lease, including utilities.
8. Subtenant's Rights as to Prime Landlord. Sublandlord shall not be liable
for any nonperformance of or noncompliance with or breach or failure to observe
any term, covenant or condition of the Prime Lease upon Prime Landlord's part to
be kept, observed, performed or complied with, or for any delay or interruption
in Prime Landlord's performing its obligations thereunder, provided that
Sublandlord shall cooperate with Subtenant in assisting Subtenant in enforcing
the terms of the Prime Lease, to the extent provided below. Sublandlord
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hereby assigns unto Subtenant, for so long as this Sublease shall be in force
and effect, any and all assignable rights and causes of action which Sublandlord
may have against Prime Landlord with respect to the Sublease Premises due to
defaults by Prime Landlord under the Prime Lease. Sublandlord agrees to
cooperate with and join with Subtenant in any claims or suits brought by
Subtenant against Prime Landlord under the Prime Lease, provided that such
participation shall be without cost or expense to Sublandlord.
9. Insurance; Waivers. Subtenant will, during the Sublease Term,
continuously maintain commercial general liability insurance to the same extent
as required of Sublandlord as tenant under the Prime Lease, which insurance
policy shall name Sublandlord as an additional insured party, and a certificate
thereof acceptable to Sublandlord shall be delivered to Sublandlord prior to the
delivery of the Sublease Premises to Subtenant. Subtenant hereby agrees to
indemnify and hold harmless Sublandlord from, and shall reimburse Sublandlord
for, all costs and expenses, including reasonable attorneys' fees, incurred by
Sublandlord in connection with the defense of all claims and demands of third
persons, including but not limited to those for death, personal injuries, or
property damage, arising out of any default of Subtenant in performing or
observing any term, covenant, condition or provision of this Sublease, or out of
the use or occupancy of the Sublease Premises by Subtenant, or out of any of the
acts or omissions of the Subtenant, its agents, representatives, employees,
customers, guests, invitees or other persons who are doing business with
Subtenant or who are at the Sublease Premises with Subtenant's consent.
Notwithstanding anything contained in this Sublease to the contrary, Sublandlord
and Subtenant release each other and the other's agents and employees from any
liability for loss or damage by fire or other casualty coverable by the
Insurance Services Office Special Cause of Loss Form or a standard form of "all
risks" insurance policy, whether or not the loss or damage resulted from the
negligence of the other, its agents or employees. Each party will use reasonable
efforts to obtain policies of insurance which provide that this release will not
adversely affect the rights of the insureds under the policies. The releases in
this Section 9 will be effective whether or not the loss was actually covered by
insurance.
10. Assignment and Subletting. Except as provided in Section 18 below and
provided Prime Landlord consents thereto, Subtenant may, with the prior written
consent of Sublandlord (which consent may not be unreasonably withheld by
Sublandlord), assign or pledge this Sublease, sublet all or any part of the
Sublease Premises. Subtenant may not allow any liens to be placed on this
Sublease or the Sublease Premises, or suffer this Sublease or the Sublease
Premises or any portion thereof to be attached or taken upon execution.
Notwithstanding the foregoing, no consent shall be required from Sublandlord or
Prime Landlord for an assignment or sublease to a party controlling, controlled
by or under common control with Subtenant.
11. Expiration. Except as provided in Sections 17 and 18 below, this
Sublease shall expire and Subtenant's obligations will terminate at the end of
the Sublease Term hereof. Subtenant will peacefully and quietly vacate and
surrender the Sublease Premises to Sublandlord at the expiration of the Sublease
Term, in the same condition as on the
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Commencement Date, reasonable wear and tear and damage by casualty excepted. The
existence of this Sublease is dependent and conditioned upon the continued
existence of the Prime Lease, and in the event of the termination of the Prime
Lease, this Sublease automatically shall be terminated; provided, however, that
this provision shall not be deemed to release Sublandlord of liability if the
Prime Lease is cancelled or terminated due to a default by Sublandlord as Tenant
under the Prime Lease, which default did not result, in whole or in part, from a
default by Subtenant under this Sublease. Sublandlord agrees not to amend, alter
or modify any of the provisions of the Prime Lease affecting Subtenant, or to
surrender the Prime Lease, without Subtenant's written consent, which consent
will not be unreasonably withheld or delayed. Sublandlord shall have no
liability to Subtenant due to the termination of the Prime Lease by reason of
any default by Subtenant under this Sublease, or by reason of any condemnation
or destruction of the Prime Lease Premises.
12. Default. If Subtenant defaults in its obligations under this Sublease,
Sublandlord shall have all of the same rights and remedies against Subtenant as
would be available to Prime Landlord against Sublandlord if Sublandlord were in
default under the Prime Lease, as fully as if such rights and remedies were set
forth in this Sublease. If Sublandlord defaults in its obligations under this
Sublease, Subtenant may pursue all remedies available at law or in equity.
13. Notices. Any notice or demand permitted or required hereunder shall be
deemed given or made if, and shall not be deemed to have been given or made
unless, it is in writing and deposited in the United States certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to Sublandlord: Real Estate Department
Attn: Xxx Xxxxxx
Deluxe PPS
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
Legal Department
Attn: Xxxxxx Xxxxxxx
Deluxe PPS
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
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If to Subtenant: Real Estate Department
Attn: Xxxx Xxxxxx
eFunds Corporation
000 Xxxx Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Phone: 000.000.0000
Fax: 000.000.0000
Legal Department
Xxxxx Xxxxxxx
eFunds Corporation
000 Xxxx Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Phone: 000.000.0000
Fax: 000.000.0000
The foregoing addresses may be changed from time to time by notice as above
provided, which change shall be effective 10 days after notice is given.
14. Entire Agreement. This Sublease contains the entire agreement between
Sublandlord and Subtenant regarding the Sublease Premises. Subtenant agrees that
it has not relied on any statement, representation or warranty of any person
except as set out in this Sublease. This Sublease may be modified only by an
agreement in writing signed by Sublandlord and Subtenant. No surrender of the
Sublease Premises, or of the remainder of the Sublease Term, will be valid
unless accepted by Sublandlord in writing.
15. Successors and Assigns. All provisions of this Sublease will be binding
on and for the benefit of the successors and assigns of Sublandlord and
Subtenant, except that no person or entity holding under or through Subtenant in
violation of any provision of this Sublease will have any right or interest in
this Sublease or the Sublease Premises.
16. Commissions. There are no commissions due regarding this Sublease.
Sublandlord and Subtenant shall each indemnify and hold the other harmless from
and against any claims, losses, costs or liability arising from any other
parties who may claim a brokerage commission as a result of the indemnifying
party's actions or agreements in connection with this Sublease.
17. Early Termination. This Lease may be terminated by Tenant prior to
September 30, 2001 upon at least six (6) month's prior written notice from
Tenant to Landlord specifying the desired termination date, which shall be the
last day of a calendar month.
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18. Subtenant's Continuing Monetary Obligation. Notwithstanding anything
contained in this Sublease to the contrary, as additional consideration for this
Sublease, Subtenant agrees to pay to Sublandlord, on or before the first day of
each month, the amount of $28,722.50 per calendar month ($7.50 per square foot
per year) ("Subtenant's Share") for the period beginning immediately after the
expiration of the Sublease Term or earlier termination date pursuant to Section
17 above, through and including September 30, 2006, until Sublandlord and
Subtenant find a Replacement (as defined below), at which time Subtenant's
liability under this Section 18 shall be partially or totally eliminated as
provided below. On the earlier of the date 30 days after Subtenant gives notice
of early termination under Section 17 above or the date 180 days prior to the
expiration of the Sublease Term, as the same may have been extended, Sublandlord
and Subtenant shall retain a real estate broker and agree to work in good faith
to find a suitable replacement subtenant or subtenants ("Replacement," whether
one or more) as soon as possible thereafter for a term beginning as soon as
possible after the early termination date or the expiration of the Sublease
Term, as the same may have been extended, as applicable, and ending September
30, 2006. If a Replacement, which must be approved by both Sublandlord and
Subtenant, which approval shall not be unreasonably withheld, is found:
(a) whose sublease gross rental obligation equals or exceeds
$57,445.00 per month, then Subtenant shall pay Subtenant's Share until the
date the Replacement begins paying rent, and any excess shall first be
applied to reimburse Sublandlord and Subtenant for the fees paid to the
real estate broker retained to find the Replacement; or
(b) whose sublease gross rental obligation is less than $57,445.00 per
month, then Subtenant shall pay Subtenant's Share until the date the
Replacement begins paying rent, and thereafter shall pay, on or before the
first day of each month, an amount equal to one-half the difference between
$57,445.00 per month and the gross rent owed by the Replacement each month
for the period ending September 30, 2006.
All fees owed to any agreed upon real estate broker shall be evenly shared
by Sublandlord and Subtenant. Subtenant's obligations under this Section 18
shall cease on the same day that Sublandlord's obligations under the Prime Lease
cease, if Sublandlord's obligations cease prior to September 30, 2006.
19. Signage. Subtenant shall be allowed to place its own signage on the
Prime Lease Premises in accordance with the provisions of the Prime Lease.
20. Estoppel Certificates. Within 20 days after written request from either
party, the other party will execute, acknowledge and deliver a document
furnished by the requesting party, which statement may be relied upon by the
requesting party and third parties, stating (a) that this Sublease is unmodified
and in full force and effect (or if modified that this
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Sublease is in full force and effect as modified and stating the modifications),
(b) the dates to which Rent has been paid, (c) the current Rent, (d) the dates
on which the Term begins and ends, (e) the existence of any unexpired extension
options, (f) that Subtenant has accepted the Sublease Premises and is in
possession, (g) that neither Sublandlord nor Subtenant is in default under this
Sublease, or specifying any such default, and (h) such other and further
information as may be reasonably requested.
21. Telecommunication Service. Voice telecommunication services shall be
provided by Sublandlord to Subtenant during the Term, and included in the Rent,
as specifically set forth on the attached Exhibit C, and in accordance with the
obligations set forth therein.
EXECUTION:
Sublandlord and Subtenant have executed this Sublease as of the date first
stated above.
Sublandlord
DELUXE FINANCIAL SERVICES, INC.
By________________________________
Its______________________________
Subtenant
eFUNDS CORPORATION
By________________________________
Its______________________________
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