SUBLEASE AGREEMENT
1. PARTIES: This sublease, dated for reference purposes only December
14, 1999 is made by and between XXXXXX XXXXXX, INC., A KANSAS CORPORATION,
FORMALLY KNOWN AS K N ENERGY, INC., A KANSAS CORPORATION (hereinafter called
"SUBLESSOR"), and E-XACT TRANSACTIONS, LTD., A DELAWARE CORPORATION (hereinafter
called "SUBLESSEE").
2. MASTER LEASE:
2.1 Sublessor is the tenant of the Premises known as 000 XXXXX
XXXX., XXXXX 000, XXXXXXXX, XXXXXXXX 00000, XXX 0, XXXXXX XX XXX XXXXX XXXXXX,
ACCORDING TO THE MAP RECORDED MAY 31, 1984 UNDER RECEPTION NUMBER 84050232,
COUNTY OF JEFFERSON, STATE OF COLORADO, pursuant to the terms of a lease
(hereinafter referred to herein together with any Amendments thereto, as the
"Master Lease"), a copy of which is attached hereto as EXHIBIT A and
incorporated herein by this reference, which Master Lease is dated FEBRUARY 23,
1998 and executed by ONE UNION SQUARE II, LTD., a Colorado limited partnership
as landlord (hereinafter referred to herein, together with all successors in
interest, as "Master Lessor"), and Sublessor, as tenant.
2.2 This Sublease is, and at all times shall be, subject and
subordinate to the Master Lease.
2.3 The terms, conditions and respective obligations of Sublessor
and Sublessee to each other under this Sublease shall be the terms and
conditions of the Master Lease, and the First and Second Amendment to Office
Lease. Provisions of the Master Lease which are directly contradicted by this
Sublease, in which event the terms of this Sublease shall control over the
Master Lease. For purposes of this Sublease, wherever in the Master Lease the
word "Lessor"/ "Landlord" is used, it shall be deemed to mean or refer to
Sublessor herein, and wherever in the Master Lease the word "Lessee"/ "Tenant"
is used, it shall be deemed to mean or refer to Sublessee herein.
2.4 During the term of this Sublease, and all periods subsequent
for obligations which have arisen prior to the termination of this Sublease,
Sublessee hereby expressly assumes and agrees to perform and comply with, for
the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor as tenant under the Master Lease as to the premises. The obligations
which Sublessee has assumed under this MASTER LEASE which are consistent with
the terms of this Sublease, hereinafter referred to as the "Sublessee's Assumed
Obligations."
2.5 Sublessee shall hold Sublessor free and harmless of and from
any liability, judgments, costs, damages, claims and demands, including
reasonable attorney's fees, arising out of Sublessee's failure to comply with or
perform Sublessee's Assumed Obligations. Sublessor shall hold Sublessee free and
harmless of and from all liability, judgments, cost, damages, claims or demands
arising out of Sublessor's failure to comply with its obligations to tenant
under the Master Lease or as Sublessor under this Sublease.
2.6 Sublessor agrees to do all things necessary on its part, as
tenant under the Master Lease, to maintain the Master Lease in full force and
effect during the entire term of this Sublease. If Sublessor receives any notice
from Master Lessor alleging or asserting that Sublessor is in default under the
Master Lease, then Sublessor shall promptly deliver a copy of any such notice to
Sublessee, and Sublessee shall have the right, but not the obligation, to take
any and all steps reasonably necessary to cure any such default. Sublessor shall
indemnify and hold Sublessee harmless of and from any and all losses, damages,
costs and expenses which Sublessee may suffer or incur as a result of curing any
such default and Sublessee shall have the right to offset any and all losses,
damages, and expenses against the Rent otherwise due hereunder.
2.7 Sublessor represents and warrants to Sublessee that, as of the
date hereof, the Master Lease is in full force and effect, and that no default
exists on the part of either party to the Master Lease, nor does any set of
facts or circumstances exist which, with notice or the passage of time, or both,
could ripen into a default.
3. PREMISES: Sublessor hereby subleases to Sublessee, and Sublessee
hereby subleases from Sublessor, for the term, at the rental and upon all of the
conditions set forth herein, that certain real property, consisting of
approximately 4,500 rentable square feet, THAT PORTION OF 8TH FLOOR, SUITE 850
(a description of which is attached hereto as EXHIBIT B. Said real property is
herein collectively called the "Premises."
4. TERM:
4.1 TERM. The term of this Sublease shall be for NINE (9) MONTHS
AND FIFTEEN (15) DAYS commencing on DECEMBER 20, 1999 and ending SEPTEMBER 30,
2000, unless sooner terminated pursuant to any provision hereof.
4.2 EARLY OCCUPANCY. If Sublessee occupies the Premises prior to
the commencement date, such occupancy shall be subject to all provisions of this
Sublease and shall not advance the termination date, and Sublessee shall pay
rent for any such period at the initial monthly rate provided for herein.
5. RENT:
5.1 RENT:
A. Sublessee shall promptly pay rent on the first day of each
month during the term of this Sublease. Sublessee shall pay rent directly to
Sublessor. The rental rate during the sublease term shall be $18.50 per rentable
square foot as described in EXHIBIT C rent schedule which is attached hereto and
made a part hereof.
B. If any sum or amount in addition to or in excess of the
Rent provided for in subparagraph 5.1.A above, is due under or pursuant to the
Master Lease as rent for the Premises, then Sublessor shall promptly pay any
such sum or amount, and Sublessor shall indemnify
and hold Sublessee harmless of and from any and all claims, damages or losses
incurred or suffered by Sublessee as a result of or arising out of any failure
or refusal on the part of Sublessor to pay any such sum or amount.
C. Sublessor and Master Lessor shall promptly notify Sublessee
of any failure on the part of Sublessor to pay any amounts otherwise due from
Sublessor as tenant under the Master Lease with regard to the Premises, as
provided in subparagraph 5.1.B above. If Sublessor fails to pay such amount,
then Sublessee shall have the right, but not the obligation, to pay any and all
such amounts on behalf of Sublessor, to the extent necessary to cure any default
on the part of Sublessor under the Master Lease, and in such event Sublessee
shall have the right at Sublessee's election, to set off any such amounts so
paid against rent otherwise due for the Premises pursuant to this Sublease or to
take whatever steps or actions are necessary and appropriate to receive such
sums from Sublessor, including without limitation instituting any action at law
or in equity.
5.2 PAYMENT OF RENT: Rent for any period during the term of this
Sublease which is less than a full month shall be a pro rata portion of the Rent
otherwise provided for in this Sublease. Rent shall be payable in lawful money
of the United States to Sublessor at the address stated herein or to such other
persons or at such other place as Sublessor may designate, in writing, to
Sublessee.
6. USE OF PREMISES:
6.1 USE. The Premises shall be used in accordance with those
provisions in the Master Lease.
6.2 COMPLIANCE WITH LAW. Sublessee hereby accepts the Premises "as
is", however, the Premises will be delivered in clean condition, replaced and
reset, subject to all applicable zoning, municipal, county, federal and state
laws, ordinances and regulations governing or regulating the use or occupancy of
the Premises, and accepts this Sublease subject thereto and to all matters
disclosed hereby and by any exhibits attached hereto. Sublessee acknowledges
that neither Sublessor nor its agents have made any representatives or
warranties as to the suitability of the Premises for the conduct of Sublessee's
business.
7. ATTORNEYS' FEES. If either Sublessor or Sublessee brings any action
or proceeding, whether legal, equitable or administrative, to enforce rights and
obligations under this Sublease, or to declare rights hereunder, the prevailing
party in any such action or proceeding shall be entitled to recover from the
other party reasonable attorneys' fees and costs of suit, in addition to any
other relief allowed by the court.
8. ADDITIONAL PROVISIONS:
8.1 NOTICES. Any notice required or permitted to be given under
this Sublease, including any change of address for purpose of giving notice,
shall be in writing, and shall be given by personal delivery, or by certified
mail, return receipt requested, or by commercial overnight
courier, in each case addressed to the party to whom said notice is given at the
address of said party indicated next to each party's signature at the end of
this Sublease.
8.2 INCORPORATION OF PRIOR AGREEMENTS. This Sublease incorporates
all agreements of the parties with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, whether oral
or written, pertaining to the subject matter hereof.
8.3 MODIFICATIONS. This Sublease may be modified or amended only
by an instrument in writing executed by both parties in interest hereunder.
8.4 GOVERNING LAW: SEVERABILITY. This Sublease shall be governed
by and construed in accordance with the laws of the State of
Colorado, as that is where the Premises are located. If any
term or provision of this Sublease is found by a court of
competent jurisdiction to be void or unenforceable, such term
or provision shall be deemed severed from the remainder of the
terms and provisions of this Sublease, and said remainder
shall remain in full force and effect, according to its terms,
to the extent permitted by law.
9. BROKERS: E-xact Transactions, Ltd. (Sublessee) is represented by
Liberty-Greenfield, LLLP in this transaction and Xxxxxx Xxxxxx (Sublessor) is
represented by The Staubech Company. The Staubech Company shall pay
Liberty-Greenfield a market commission per a separate agreement. Each party to
this Lease shall indemnify, defend and hold harmless the other party from and
against any and all claims asserted against such other party by any real estate
broker, finder or intermediary relating to any act of the indemnifying party in
connection with this Lease. $3,555.00 to Liberty-Greenfield.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease on
the dates set forth below, to be effective as of the date first set forth above.
SUBLESSOR:
XXXXXX XXXXXX, INC.
Attn: Manager, Real Property
P. O. Xxx 000000
Xxxxxxxx, Xxxxxxxx 00000-0000
By /s/illegible
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Its
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SUBLESSEE:
E-xact Transactions, Ltd.
Attn: Xxx Xxxxxxxxx
Xxxxx 0000-000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X0X0
By /s/Xxx Xxxxxxxxx
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Its
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LANDLORD:
ONE UNION SQUARE II, LTD., A COLORADO LIMITED
PARTNERSHIP
Attn: Real Estate Manager
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
By /s/illegible
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Its
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EXHIBIT A
(Primary Lease)
Not Attached
EXHIBIT B
Tenant shall occupy approximately 4,500 rentable square feet of 9,300 available
rental square feet. No demising wall shall be built, and Tenant shall occupy
space in "as is" condition.
[MAP]
EXHIBIT C
Period Square Feet Rent Per Square Foot Monthly Total
12/20/99-12/31/99 1,000 $18.50 $ 596.76
01/01/00-01/15/00* 1,000 $18.50 $ 770.83
01/16/00-01/31/00 4,500 $18.50 $ 3,468.75
02/01/00-09/30/00 4,500 $18.50 $ 6,937.50
* Combined rent for the month of January 2000 shall be $4,239.58.
