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[LOGO]
[XXXXXXX XXXXX LETTERHEAD]
1. PARTIES.
This Sublease, dated August 20, 1998, is made between NTN COMMUNICATIONS,
Inc., a Delaware Corporation ("Sublessor"), and WIRESOURCES COMPUTING, INC.,
a California Corporation ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated November 23, 1994.
Liability Co. wherein PPAP, Successor In Interest to The Campus, L.L.C.,
a California Limited/("Lessor") leased to Sublessor the real property located
in the City of Carlsbad, County of San Diego, State of California describes
as approximately 39,397 square feet of space in the building at 0000 Xx Xxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxx ("Master Premises"), Said lease has been amended
by the following amendments None known, said lease and amendments are herein
collectively referred to as the "Master Lease" and are attached hereto as
Exhibit "A".
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set forth
in this Sublease the following portion of the Master Premises ("Premises").
Approximately 11,631 rentable square feet located on the second floor of 0000
Xx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, 00000 - Exhibit "A".
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease attached
as Exhibit "B" has not been amended or modified except as expressly set forth
herein, that Sublessor is not now, and as of the commencement of the Term
hereof will not be, in default or breach of any of the provisions of the
Master Lease, and that Sublessor has no knowledge of any claim by Lessor that
sublessor is in default or breach of any of the provisions of the Master
Lease.
5. TERM.
The Term of this Sublease shall commence on September 1, 1998 ("Commencement
Date"), or when Lessor consents to this Sublease (if such consent is required
under the Master Lease), whichever shall last occur, and end on June 30,
2001, (RWK) ("Termination Date"), unless otherwise sooner terminated in
accordance with the provisions of this Sublease. In the event the Term
commences on a date other than the Commencement Date, Sublessor and Sublessee
shall execute a memorandum setting forth the actual date of commencement of
the Term. Possession of the Premises ("Possession") shall be delivered to
Sublessee on the commencement of the Term. If for any reason Sublessor does
not deliver Possession to Sublessee on the commencement of the Term,
Sublessor shall not be subject to any liability for such failure, the
Termination Date shall not be extended by the delay, and the validity of this
Sublease shall not be impaired, but rent shall xxxxx until delivery of
Possession. Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement Date,
then at any time thereafter and before delivery of Possession, Sublessee may
give written notice to Sublessor of Sublessee's intention to cancel this
Sublease. Said notice shall set forth an effective date for such cancellation
which shall be at least ten (10) days after delivery of said notice to
Sublessor. If Sublessor delivers Possession to Sublessee on or before such
effective date, this Sublease shall remain in full force and effect. If
Sublessor fails to deliver Possession to Sublessee on or before such
effective date, this Sublease shall be cancelled, in which case all
consideration previously paid by Sublessee to Sublessor on account of this
Sublease shall be returned to Sublessee, this Sublease shall thereafter be of
no further force or effect, and Sublessor shall have no further liability to
Sublessee on account of such delay or cancellation. If Sublessor permits
Sublessee to take Possession prior to the commencement of the Term, such
early Possession shall not advance the Termination Date and shall be subject
to the provisions of this Sublease, including without limitation the payment
of rent.
6. RENT
6.1 Minimum Rent. Sublease shall pay to Sublessor as minimum rent, without
deduction, setoff, notice, or demand, at 0000 Xx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000 or at such other place as Sublessor shall designate from
time to time by notice to Sublessee, the sum of Twelve Thousand Two Hundred
Seventeen and 20/100 -- Dollars ($12,217.20) per month, in advance on the
first day of each month of the Term. Sublessee shall pay to Sublessor upon
execution of this Sublease the sum of Twelve Thousand Two Hundred Seventeen
and 20/100 --- Dollars ($12,217.20) as rent for December 1998. If the Term
begins or ends on a day other than the first or last day of a month, the rent
for the partial months shall be prorated on a per diem basis. Additional
provisions: Base rent shall be abated by Sublessor for September, October and
November 1998.
6.2 Operating Costs. If the Master Lease requires Sublessor to pay to Lessor
all or a portion of the expenses of operating the building and/or project of
which the Premises are a part ("Operating Costs"), including but not limited
to taxes, utilities, or insurance, then Sublessee shall pay to Sublessor as
additional rent Eighteen and 45/100 percent (18.45%) of the amounts payable
by Sublessor for Operating Costs incurred during the Term. Such
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additional rent shall be payable and when Operating Costs are
payable from Sublessor to Lessor. If the Master Lease provides for the
payment by Sublessor of Operating Costs on the basis of an estimate thereof,
then as and when adjustments between estimated and actual Operating Costs
are made under the Master Lease, the obligations of Sublessor and Sublessee
hereunder shall be adjusted in a like manner, and if any such adjustment
shall occur after the expiration or earlier termination of the Term, then
the obligations of Sublessor and Sublessee under this Subsection 6.2 shall
survive such expiration or termination. Sublessor shall, upon request by
Sublessee, furnish Sublessee with copies of all statements submitted by
Lessor of actual or estimated Operating Costs during the Term.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease the
sum of Twelve Thousand Two Hundred Seventeen and 20/100 Dollars ($12,217.20)
as security for Sublessee's faithful performance of Sublessee's obligations
hereunder ("Security Deposit"). If Sublessee fails to pay rent or other
charges when due under this Sublease, or fails to perform any of its other
obligations hereunder, Sublessor may use or apply all or any portion of the
Security Deposit for the payment of any rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which Sublessor
may become obligated by reason of Sublessee's default or breach, or for any
loss or damage sustained by Sublessor as a result of Sublessee's default or
breach. If Sublessor so uses any portion of the Security Deposit, Sublessee
shall, within ten (10) days after written by Sublessor, restore the Security
Deposit to the full amount originally deposited, and Sublessee's failure to
do so shall constitute a default under this Sublease. Sublessor shall not be
required to keep the Security Deposit separate from its general accounts,
and shall have no obligation or liability for payment of interest on the
Security Deposit. In the event Sublessor assigns its interest in this
Sublease, Sublessor shall deliver to its assignee so much of the Security
Deposit as is then held by Sublessor. Within ten (10) days after the Term
has expired, or Sublessee has vacated the Premises, or any final adjustment
pursuant to Subsection 6.2 hereof has been made, whichever shall last occur,
and provided Sublessee is not then in default of any of its obligations
hereunder, the Security Deposit, or so much thereof as had not theretofore
been applied by Sublessor, shall be returned to Sublessee or to the last
assignee, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for general office only, and
for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part
of the Premises without the prior written consent of Sublessor (and the
consent of Lessor, if such is required under the terms of the Master Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease as if Sublessor were the lessor
thereunder, Sublessee the lessee thereunder, and the Premises the Master
Premises, except for the following:
SEE ATTACHED ADDENDUM.
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Sublessee assumes and agrees to perform the lessee's obligations under the
Master Lease during the Term to the extent that such obligations are
applicable to the Premises, except that the obligation to pay rent to Lessor
under the Master Lease shall be considered performed by Sublessee to the
extent and in the amount rent is paid to Sublessor in accordance with
Section 6 of this Sublease. Sublessee shall not commit or suffer any act or
omission that will violate any of the provisions of the Master Lease.
Sublessor shall exercise due diligence in attempting to cause Lessor to
perform its obligations under the Master Lease for the benefit of Sublessee.
If the Master Lease terminates, this Sublease shall terminate and the
parties shall be relieved of any further liability or obligation under this
Sublease, provided however, that if the Master Lease terminates as a result
of a default or breach by Sublessor or Sublessee under this Sublease and/or
the Master Lease, then the defaulting party shall be liable to the
nondefaulting party for the damage suffered as a result of such termination.
Notwithstanding the foregoing, if the Master Lease gives Sublessor any right
to terminate the Master Lease in the event of the partial or total damage,
destruction, or condemnation of the Master Premises or the building or
project of which the Master Premises are a part, the exercise of such right
by Sublessor shall not constitute a default or breach hereunder.
11. ATTORNEY'S FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other ____ out of or in connection with this Sublease, the prevailing party
shall be entitled to recover its costs of suit and reasonable attorney's
fees.
12. AGENCY DISCLOSURE:
Sublessor and Sublessee each warrant that they have dealt with no other real
estate broker in connection with this transaction except: CB Xxxxxxx Xxxxx,
Inc. who represents SUBLESSOR and COLLIERS INTERNATIONAL, who represents
SUBLESSEE. In the event that CB Xxxxxxx Xxxxx, Inc. represents both
Sublessor and Sublessee, Sublessor and Sublessee hereby confirm that they
were timely advised of the dual representation and that they consent to the
same, and that they do not expect said broker to disclose to either of them
the confidential information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor shall
pay Broker a real estate brokerage commission in accordance with Sublessor's
contract with Broker for the subleasing of the Premises, if any, and
otherwise in the amount of Twenty three thousand six hundred and thirty nine
82/100 Dollars ($23,639.82), for services rendered in effecting this
Sublease. Broker is hereby made a third party beneficiary of this Sublease
for the purpose of enforcing its right to said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All
notices and demands by the Sublessor to Sublessee shall be sent by United
States Mail, postage prepaid, addressed to the Sublessee at the Premises,
and to the address hereinbelow, or to such other place as Sublessee may from
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time to time designate in a notice to Sublessor. All notices and demands by
the Sublessees to Sublessor shall be sent by United States Mail, postage
prepaid, addressed to the Sublessor at the address set forth herein, and to
such other person or place as the Sublessor may from time to time designate in
notice to the Sublessee.
To Sublessor: 0000 Xx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
To Sublessee: 0000 Xx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY LESSOR
WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS REQUIRED UNDER THE
TERMS OF THE MASTER LEASE.
16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes, ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1984 Civil Rights Act and all
amendments thereto, the Foreign Investment in Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
Sublesser: NTN COMMUNICATIONS, INC. Sublessee: WINRESOURCES COMPUTING, INC.
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By: /s/ F. XXXXX XXXXXXXX By: /s/ XXXXXX X. XXXXX
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F. Xxxxx Xxxxxxxx
Title: Vice President and General Counsel Title: President
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By: By:
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Title: Title:
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Date: Date: 8/24/98
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LESSOR'S CONSENT TO SUBLEASE
Undersigned ("Lessor"), lessor under the Master Lease, hereby consents to the
foregoing Sublease without waiver of any ??? in the Master Lease concerning
further assignment or subletting. Lessor certifies that, as of the date of
Lessor's ???? hereof. Sublessor is not in default or breach of any of the
provisions of the Master Lease, and that the Master Lease have not been amended
or modified except as expressly set forth in the foregoing Sublease.
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency or tax consequences of this document or the transaction to which it
relates. These are questions for your attorney.
Any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial ????? or other person, with
experience in evaluating the condition of the property, including the possible
presence of ???, hazardous materials and underground storage tanks.
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ADDENDUM NO. 1 TO SUBLEASE DATED AUGUST 11, 1998, BY AND BETWEEN NTN
COMMUNICATIONS, INC. ("SUBLESSOR") AND WINRESOURCES COMPUTING, INC.,
("SUBLESSEE").
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1. Provided that the sublease documents are executed by all parties on or
before August 21, 1998, Sublessor shall vacate the entire second floor by
September 1, 1998, consisting of 11,631 rentable square feet as referenced
in Paragraph 3, "Premises" of the Sublease.
2. Sublessor shall deliver possession of the premises on or before September
1, 1998, provided that the Sublease has been executed and approved by the
Master Lessor on or before August 21, 1998. Landlord shall xxxxx the Base
Rent and Additional Rent due from the time possession of the premises is
delivered to the Sublessee through November 30, 1998. Any abated rent shall
become immediately due and payable should Sublessee continue to monetarily
and materially default under the terms of the Sublease for thirty (30) days
or more. In the event the premises are not made available by Sublessor,
rental abatement shall be adjusted to remain at a full three (3) months.
3. RENT. The Base Rent schedule shall be as follows:
MONTHS BASE RENT
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October 1, 1998 through November 30, 1998 Rent abated by Landlord
December 1, 1998 through September 30, 1999 $12,217.00 per month
October 1, 1999 through September 30, 2000 $12,726.00 per month
October 1, 2000 through June 30, 2001 $13,235.00 per month
The Base Rent shall be paid as per the terms of the sublease plus the
allocation of Additional Rent per Article 1.1 of the Master Lease on a
proportionate share basis. Sublessee shall be responsible for a
proportionate share of the following costs as noted in the Master Lease:
Property taxes (5.2) insurance charges (5.3), common area maintenance
charges (5.4). All such proportional charges shall be made payable to
Sublessor in monthly installments on the first day of the month. Sublessee
shall also be responsible for its own separately metered utilities and
janitorial service.
7. Tenant Improvements. Sublessor shall deliver the space in "AS IS" condition
with the following exceptions:
(a) Ground level common corridor area shall be demised per a plan to be
mutually agreed upon by Sublessor and Sublessee and Master Lessor, per
attached Exhibit A;
(b) Sublessor shall deliver the heating, ventilating and air-conditioning,
plumbing and electrical systems in good working order.
8. PARKING. Sublessee shall be entitled to a prorate portion of the unreserved
parking stalls allotted for the premises free of charge for the term of the
Sublease, not to exceed a ratio of 4 cars per 1,000 usable square feet.
9. SIGNAGE. Sublessee may install, at its sole cost and expense and subject to
the express written consent of Sublessor, signage visible from the elevator
lobby on the first floor. In addition, Sublessor shall provide, at
Sublessee's sole cost and expense, signage that is mutually acceptable
within the second floor elevator lobby indicating the location of the
Premises. All of the foregoing signage (whether installed by Sublessor or
Sublessee) shall also be subject to the express written consent of Master
Lessor, as provided in the Master Lease.
10. ASSIGNMENT AND SUBLETTING. Per the terms of the Master Lease.
11. ATTORNEY'S FEE. In respect to the attached sublease, there shall be no cost
to Sublessee for Master Lessor's legal (or other) expenses to review this
lease in connection with obtaining the consent of Master Lessor, nor shall
Sublessee be liable for legal costs incurred for matters between Master
Lessor and Sublessor that are not related to Sublessor and this sublease.
The foregoing shall not be construed as a limitation on any of Master
Lessor's rights and remedies against Sublessor related to legal costs
incurred for matters between Master Lessor and Sublessor, including without
limitation, termination of the Master Lease, or as limitation on the effect
that such a termination would have on this sublease.
12. INSURANCE. Sublessee shall maintain policies of insurance not less than
$1,000,000.00 as required by Section 12 of the Master Lease. Each such
policy shall name Sublessor as an additional insured. Sublessee shall
provide to Sublessor, prior to September 1, 1998, certificates evidencing
such coverage and providing that no modification
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ADDENDUM NO. 1 TO SUBLEASE DATED AUGUST 11, 199 , BY AND BETWEEN NTN
COMMUNICATIONS, INC. ("SUBLESSOR") AND WINRESOURCES COMPUTING, INC.,
("SUBLESSEE").
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or cancellation of such coverage shall be effective unless Sublessor has
received no less than thirty (30) days notice of such modification or
cancellation.
13. ASSIGNMENT OF SUBLEASE AND DEFAULT.
a) If Sublessee pays directly to Master Lessor, per Section 13 of this
sublease. Sublessor shall credit Sublessee for any payments made, and
Sublessor shall remain liable to Sublessee for any and all "Additional
Rent" or other charges Sublessee is required to pay on behalf of
Sublessor.
b) Neither this sublease, not Sublessor's vacation of the Premises
governed by this sublease in order to deliver possession thereof to
Sublessee, shall constitute an "abandonment" of such premises in the
sense of the Master Lease.
c) Should Sublessor file for bankruptcy protection and should Master
Lessor, thereof, declare a default under the Master Lease and
terminate the Master Lease on account thereof, then Master Lessor
shall require Sublessee to attorn to Master Lessor, which Sublessee
shall promptly do, and Master Lessor shall undertake the obligations
of Sublessor under this sublease as more particularly described in
this sublease. In order that such bankruptcy by Sublessor shall not
affect Sublessee's quiet enjoyment of this sublease. In addition, any
security deposits held by Sublessor on behalf of Sublessee, shall be
transferred immediately to Master Lessor.
14. DEFAULT
In the event of any default by Sublessor of monetary payments to Master
Lessor, Sublessor shall be required to notify Sublessee of any non-payment
or actions on behalf of Landlord.
SUBLESSOR: NTN COMMUNICATIONS, INC. SUBLESSEE: WINRESOURCES COMPUTING
By: /s/ F. XXXXX XXXXXXXX By: /s/ XXXXXX X. XXXX
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F. Xxxxx Xxxxxxxx Xxxxxx X. Xxxx
Title: Vice President and General Counsel Title: President
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LESSOR: XXXXXXXX PROPERTIES, INC.
By:
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Title:
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