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February 1, 2000
EXHIBIT 10.2
Xx. Xxxxxx X. Xxx Xxxx
Chief Executive Officer of
Xxxx.Xxx, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxx 00000
RE: Current Status of certain Lease Agreement dated as of January 15, 1992, by
and between Xxxxxxx-Reunion Cameron Centre Joint Venture (hereinafter
referred to as NRCC), as Landlord, and GTECH, Corporation, a Delaware
corporation (hereinafter referred to as Sublandlord), as Tenant, as amended
by (i) Lease Amendment Number 1 dated as of March 10, 1992, by and between
NRCC and Sublandlord, (ii) Lease Amendment Number 2 dated as of July 20,
1992, by and between NRCC and Sublandlord, (iii) Third Amendment to Lease
Agreement dated July 14, 1997, by and between Gateway Central Properties
(successor to NRCC, hereinafter referred to as Landlord) and Sublandlord,
and (iv) Fourth Amendment to Lease Agreement dated October 17, 1997, by and
between Landlord and Sublandlord (such Lease Agreement, as amended, being
referred to herein as the Master Lease) for the lease of approximately
7,082 square feet of space (herein called the Sublease Premises) situated
in Xxxxxx County, Texas, within that certain building locally known as
Cameron Centre, Building B, located at 0000 Xxxxxxx Xxxx, Xxxxx X-000,
Xxxxxx, Xxxxx
Dear Xx. Xxxx,
As an inducement to Xxxx.Xxx, Inc. to enter into a sublease agreement for
the Sublease Premises with Sublandlord, Sublandlord represents and warrants to
Sublessee that Sublandlord, as of the date of this letter, is not in default of
any term or condition of the Master Lease in any manner or of any other
agreement in any manner concerning the Sublease Premises, and that no event
exists which could constitute a Master Lease Termination, as defined in that
Consent to Sublease agreement, which is attached hereto and incorporated by
reference herein.
Additionally, Sublandlord also joins in making the representations
contained in this letter as an inducement to Xxxx.Xxx, Inc. to enter into a
sublease agreement for the Sublease Premises with Sublandlord. In consideration
of the rent and security deposit paid by Xxxx.Xxx, Inc. to Sublandlord pursuant
to the certain sublease agreement, Sublandlord agrees to indemnify and save and
hold harmless Xxxx.Xxx, Inc. from any and all claims, demands, costs, expenses,
damages, rents, fines, penalties, interest expenses, moving or relocation
expenses, utility installation expenses, or reasonable attorneys' fees, in any
manner incurred by Xxxx.Xxx, Inc. as a result of the breach of the
representations and warranties contained in this letter. Sublandlord
specifically agrees that all obligations imposed upon them by this letter as
subject to set-off and deduction by Xxxx.Xxx, Inc.
This letter is intended to be a part of that certain sublease agreement
between Xxxx.Xxx, Inc. and GTECH Corporation.
Sincerely yours,
GTECH Corporation
/s/ XXXX X. XXXXXXXX /s/ XXXXXX ANTHEMENT JR.
Xxxx X. Xxxxxxxx Xxxxxx Anthement Jr.
Director Facilities & Real Estate COO
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SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT (the "Sublease") dated and effective as of
___________________, 2000, by and between GTECH CORPORATION, a Delaware
corporation (herein called "Sublandlord"), and XXXX.XXX, INC., a Nevada
corporation (herein called "Subtenant");
WITNESSETH:
Reference is made to that certain Lease Agreement dated as of January 15,
1992, by and between Xxxxxxx-Reunion Cameron Centre Joint Venture ("NRCC"), as
Landlord, and Sublandlord, as Tenant, as amended by (i) Lease Amendment Number
1 dated as of March 10, 1992, by and between NRCC and Sublandlord, (ii) Lease
Amendment Number 2 dated as of July 20, 1992, by and between NRCC and
Sublandlord, (iii) Third Amendment to Lease Agreement dated July 14, 1997, by
and between Gateway Central Properties (successor to NRCC, hereinafter referred
to as "Landlord") and Sublandlord, and (iv) Fourth Amendment to Lease Agreement
dated October 17, 1997, by and between Landlord and Sublandlord (such Lease
Agreement, as amended, being referred to herein as the "Master Lease"),
covering and describing, among others, the "Sublease Premises" hereinafter
described.
Sublandlord has agreed to sublease the Sublease Premises to Subtenant,
Subtenant has agreed to sublease the Sublease Premises from the Sublandlord,
and the Landlord has consented to such sublease by Sublandlord to Subtenant,
all as hereinafter provided.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
THAT, for and in consideration of the rents to be paid by Subtenant and
the covenants and agreements of the Sublandlord and Subtenant hereinafter set
forth, the Sublandlord does hereby SUBLEASE, SUBLET and DEMISE unto the
Subtenant and the Subtenant does hereby SUBLEASE and SUBLET from the
Sublandlord approximately 7,082 square feet of space (herein called the
"Sublease Premises") situated in Xxxxxx County, Texas, within that certain
building locally known as Cameron Centre, Building B, located at 0000 Xxxxxxx
Xxxx, Xxxxx X-000, Xxxxxx, Xxxxx, as more particularly described and/or
depicted on Exhibit A attached hereto and incorporated herein by reference for
all purposes;
TO HAVE AND TO HOLD the Sublease Premises, subject to the terms, covenants
and conditions in this Sublease and in the Master Lease unto the Subtenant for
the term hereinafter stated.
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ARTICLE ONE
TERM
The term ("Term") of this Sublease shall commence on the Effective Date
(as hereinafter defined) and shall expire at 11:59 p.m. on September 24th 2002,
unless sooner terminated as herein provided. The "Effective Date" of this
Sublease shall be date on which Landlord executes the Consent to Sublease
attached hereto as Exhibit B and incorporated herein by this reference for all
purposes.
ARTICLE TWO
RENT AND SECURITY DEPOSIT
2.1 Rent. Subtenant agrees to pay to Sublandlord, as the "Base Rent" in
this Sublease, in lawful money of the United States of America, the sum of the
following amounts on the respective dates stated below:
(a) On the Effective Date, if the Effective Date is a date other than
the first day of a calendar month, the Subtenant agrees to pay to the
Sublandlord an amount equal to the product of the number of days from
and including the Effective Date to and including the last day of the
calendar month in which the Effective Date occurs multiplied by
$165.25, as the Base Rent for such initial partial month during the
Term; and
(b) Commencing on the first day of the fourth (4th) full calendar month
to ensure after the calendar month in which the Effective Date occurs,
and on the first day of each calendar month thereafter during the Term,
Subtenant agrees to pay to the Sublandlord Four Thousand Nine Hundred,
Fifty-seven and 40/100 Dollars ($4,957.40), as the Base Rent for such
respective calendar months; provided, that if Effective Date occurred
on other than the first day of a calendar month, then the amount
payable by the Subtenant on the first day of the last calendar month to
commence during the Term shall be prorated as provided in paragraph
2.1(a) above for the number of days in such calendar month which are
within the Term.
2.2 Additional Rent. In addition to the Base Rent described above,
Subtenant agrees to pay to Sublandlord, as Additional Rent, its Proportionate
Share (as defined in the Master Lease) of operating expenses set forth in
Section 2.03 of the Master Lease attributable to the Sublease Premises
(determined on a square foot of rentable area basis) for the period of the Term
commencing on the ninety-first (91st) day of the Term. Subtenant agrees to pay
its Proportionate Share to Sublandlord through payments to Sublandlord of
Forecast Additional Rent (as defined in the Master Lease) for the period of the
Term of this Sublease commencing the ninety-first day of the Term. The Forecast
Additional Rent applicable during calendar year 2000 is One Thousand Six Hundred
Seventy-Five and 60/100 Dollars ($1675.60) per calendar month. For any partial
calendar month during the Term of this Sublease in which Subtenant has agreed to
pay Forecast Additional Rent, the monthly installment of Forecast Additional
Rent shall be proportionately reduced based on the proportion of such calendar
month which is within the portion of the Term in which Subtenant has agreed to
pay Forecast Additional Rent. Additional Rent shall be due and payable monthly,
in advance, commencing on the ninety-first day of the
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Term and thereafter on the first day of each calendar month during the Term of
this Sublease. Except as otherwise provided herein, Additional Rent shall be
determined and paid to Sublandlord with respect to the Sublease Premises in the
same manner as set forth in the Master Lease.
2.3 Place of Payment. The Minimum Rent and the Additional Rent is
hereinafter collectively called "Rent." All Rent and other sums owing or to
become owing by Subtenant to Sublandlord shall be payable at the Sublandlord's
office at ___________________________________________.
2.4 Security Deposit. Upon execution hereof, Subtenant shall pay to
Sublandlord the cash sum of Eleven Thousand Sixty-Seven and No/100 Dollars
($11,067.00) as security for the full and faithful performance by Subtenant of
the Subtenant's monetary and non-monetary obligations under this Sublease and
the Master Lease. In the event of default by Subtenant of any of its
obligations hereunder or under the Master Lease, Subtenant agrees that
Sublandlord may apply all or any part of the Security Deposit for the payment
of Minimum Rent, Additional Rent or any other amount owed by Subtenant under
the terms of this Sublease or the Master Lease, or to payment or reimbursement
of any expense incurred by Sublandlord as a result of any default by Subtenant
under the terms of this Sublease or the Master Lease; provided, however, the
foregoing shall not be construed as a limitation on or impairment of any other
remedy of the Sublandlord or the Landlord under the terms of this Sublease or
the Master Lease. In the event all or any portion of the Security Deposit is
applied to cure any default of Subtenant under the terms of this Sublease or
the Master Lease, Subtenant agrees to and shall deposit with the Sublandlord
any sums drawn from the Security Deposit and so applied, in order that the
Security Deposit shall at all times be the amount specified herein. If the
Subtenant faithfully performs all of its obligations under this Sublease and
the Master Lease, Sublandlord shall return the Security Deposit to the
Subtenant, without interest, within sixty (60) days following the final
recapitulation and comparison of the Forecast Additional Rent for the final
Lease Year of the Master Lease.
2.5 In addition to the Base Rent and the Additional Rent and the Security
Deposit, Subtenant further agrees to timely pay any and all amounts to become
owing during the Term with respect to any costs, expenses, fees or other sums
or amounts attributable to the Sublease Premises (as determined on a square
foot of rentable area basis), including, without limitation, all after normal
business hours service charges, late charges, and interest as set forth in the
Master Lease.
ARTICLE THREE
AGREEMENTS BY SUBTENANT
3.1 Subtenant's Compliance with Master Lease. Commencing on the Effective
Date and thereafter during the Term of this Sublease, except as specifically
stated herein to the contrary, Subtenant agrees to keep and perform all the
obligations set forth in the Master Lease to be kept and performed by the
"Tenant" as defined thereunder with reference to the Sublease Premises and all
such obligations are incorporated into this Sublease by reference as fully and
for all purposes as if set forth herein in full. Subtenant further agrees
that, during the term of this
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Sublease, it will not take or fail to take any action upon or with reference to
the Sublease Premises that would cause Sublandlord to be or become in default
under the Master Lease.
3.2 Use. Subtenant agrees to use the Sublease Premises solely for
administrative offices, a computer center, computer maintenance and other uses
relating to Subtenant's business which are authorized under and conducted in
accordance with the provisions of the Master Lease.
3.3 Same Conditions Apply. Except as otherwise stated in this Sublease,
Subtenant agrees that its subleasehold in and to the Sublease Premises is
subject to the same conditions as set forth in the Master Lease to which
reference is here made therefor and the same are incorporated herein by
reference as fully and for all purposes as if set forth herein in full.
3.4 No Renewal Term. Subtenant acknowledges and agrees that nothing in this
Sublease shall be deemed or construed to grant to Subtenant the right to
exercise any option or right granted to Sublandlord under the Master Lease,
including, without limitation, any option to renew or extend the term of the
Master Lease or any right of first refusal granted to Sublandlord under the
Master Lease.
3.5 No Subleasing or Assignment. Subtenant acknowledges and agrees that
nothing in this Sublease shall be deemed or construed to permit Subtenant, and
Subtenant shall have no right, to transfer or assign this Sublease or to further
sublease the Sublease Premises without the prior written consent of Sublandlord
and Landlord, which consent Sublandlord and Landlord may withhold or grant in
their sole discretion.
3.6 Condition of Sublease Premises. Except as stated specifically in
Section 4.2, Subtenant acknowledges and agrees that neither Sublandlord nor
Landlord shall have any obligation to pay for or provide any improvements in or
to the Sublease Premises and Subtenant does hereby agree that this sublease of
the Sublease Premises is made by Sublandlord and accepted by Subtenant AS IS,
WHERE IS, WITH ALL FAULTS AND WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO
FITNESS, CONDITION, OR HABITABILITY.
3.7 Representations as to Master Lease. Sublandlord represents and warrants
to Sublessee that Sublandlord, as of the Effective Date, is not in default of
any term or condition of the Master Lease in any manner or of any other
agreement in any manner concerning the Sublease Premises, and that no event
exists which could constitute a Master Lease Termination, as defined in that
Consent to Sublease agreement, which is attached hereto and incorporated by
reference herein. SUBLANDLORD AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS
SUBLESSEE FROM ANY AND ALL CLAIMS, DEMANDS, COSTS, EXPENSES, DAMAGES, RENTS,
FINES, PENALTIES, INTEREST EXPENSES, OR REASONABLE ATTORNEYS' FEES, IN ANY
MANNER INCURRED BY SUBLESSEE AS A RESULT OF THE BREACH OF THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN THE PARAGRAPH.
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ARTICLE FOUR
AGREEMENTS BY SUBLANDLORD
4.1 Obtain Services from Landlord. Upon request by Subtenant, Sublandlord
agrees to seek and/or make appropriate demand on the Landlord to provide any
services to the Sublease Premises which Landlord is obligated to provide under
the Master Lease. In no event shall Sublandlord be obligated or liable to
Subtenant for the failure of Landlord to provide any such services. Any damages
recovered by Sublandlord from Landlord on account of a failure of Landlord to
provide such services to the Sublease Premises shall be paid to Subtenant after
deducting therefrom the reasonable costs and expenses (including, without
limitation, its reasonable attorney's fees and court cost(s) incurred by
Sublandlord in enforcing the terms and provisions of the Master Lease and/or
prosecuting any such claim against Landlord.
ARTICLE FIVE
REMEDIES
5.1 Sublandlord's Remedies. Any failure by Subtenant to satisfy and perform
all covenants, obligations and provisions of this Sublease and any act or
omission by Subtenant which would constitute an event of default by Tenant under
the Master Lease shall constitute an event of default by Subtenant hereunder.
Subtenant agrees that upon: (i) the occurrence of any event of Monetary Default
(as defined in the Master Lease) by Subtenant, written notice by Sublandlord,
and the passage of fifteen (15) business days in which Subtenant has failed to
cure the Monetary Default, or (ii) the occurrence of any Non-Monetary Default
(as defined in the Master Lease) by Subtenant, written notice by Sublandlord to
Subtenant, and the passage of thirty (30) days in which Subtenant has failed to
cure the Non-Monetary Default, Sublandlord may exercise, in addition to any
other remedy available at law or in equity, any one or more of the remedies set
forth in the Master Lease.
5.2 Subtenant's Remedies. In the event of any default by Sublandlord
hereunder, Subtenant shall not exercise any remedy until thirty (30) days after
Subtenant has given Sublandlord and Landlord written notice of such default and
Sublandlord has failed within such 30-day period of time to remedy such default
by Sublandlord.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
6.1 Brokerage Commissions. Sublandlord and Subtenant acknowledge and agree
that Colliers Oxford has provided real estate brokerage services to Subtenant
and that Hill Partners, Inc. has provided real estate brokerage services to
Sublandlord, and that Colliers Oxford and Hill Partners, Inc. are the only real
estate brokers involved in this transaction. In the event and only in the event
that Subtenant enters possession of the Sublease Premises and pays timely the
initial partial month, and the first full calendar month of Base Rent plus the
Security Deposit to Sublandlord, Sublandlord agrees (a) to pay to Colliers
Oxford a real estate leasing commission of four percent (4%) of the total Base
Rent payable by Subtenant under this Sublease and (b) to pay Hill Partners, Inc.
a real estate leasing commission of two percent (2%) of the total Base Rent
payable by Subtenant under this Sublease. Except for the real estate leasing
commission
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provided in this Section, each of Sublandlord and Subtenant agree to indemnify
and hold the other harmless from and against ALL CLAIMS of all brokers, finders
and others claiming a commission, fee or other compensation in connection with
this transaction on account of an agreement claimed to have been made by,
through or under such indemnifying party. Sublandlord and Subtenant agree to
indemnify and hold the Landlord harmless from and against all claims of all
brokers, finders and others claiming a commission, fee or other compensation in
connection with this transaction on account of an agreement claimed to have been
made by, through, or under them, respectively.
6.2 Costs of Enforcement. In the event that either party shall take action
to enforce any rights under this Sublease, the prevailing party shall be
entitled to court costs and reasonable attorney's fees (including those
relating to any appeals). Such fees shall include all costs incident to
recovery hereunder whether directly related to litigation or not.
6.3 Notices. Any notice or request required by this Sublease or the Master
Lease must be in writing and may, unless otherwise expressly provided in this
Master Lease, be given or served by depositing the same in the United States
Postal Service, post-paid and certified, addressed to the party to be notified,
with return receipt requested, or by hand delivering the same in person to such
party (or in the case of a corporate party, to an officer of such party). For
purposes of notice, the addresses of the parties shall be as follows, until
changed as herein provided:
If to LANDLORD:
-------------------
-------------------
-------------------
If to SUBLANDLORD: GTECH Corporation
Attn: General Counsel
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, XX 00000
With copy to: X.X. Xxxxxxxx
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
If to SUBTENANT: Xxxx.Xxx, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxx 00000
Such notice shall be deemed to be given when deemed given under the terms
and provisions of the Master Lease. The parties hereto shall have the right
from time to time to change their respective addresses by giving written notice
to the other parties.
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6.4 Entire Agreement. This Sublease contains the entire understanding
between Sublandlord and Subtenant and supersedes any prior understandings and
agreements between them regarding the subject matter hereof. There are no other
representations, agreements, arrangements, understandings, oral or written,
between and among the parties hereto or made by any agents, employees or
representatives of any of the parties hereto (including, without limitation,
real estate brokers and salesmen) relating to the subject matter of this
Sublease that are not set forth herein. No amendment of or supplement of this
Sublease shall be valid or effective unless made in writing and executed by
each of the parties hereto.
6.5 Partial Invalidity. If any portion of this Sublease shall be deemed to
be null and void or unenforceable by action of a court of law, such portion
shall be severable and shall not affect the balance of this Sublease, which
shall remain in full force and effect.
6.6 Time of the Essence. Time shall be of the essence with respect to all
matters pertaining to this Sublease.
6.7 Binding Effect. This Sublease is binding on and enforceable against
the parties and their respective legal representatives, successors and assigns;
provided, that nothing in this Section shall be deemed or construed to permit
the assignment of this Sublease or the further sublease of the Sublease
Premises by Subtenant.
6.8 Word Forms. Unless the context indicates otherwise, the singular form
when used herein will include the plural form, and any masculine, feminine, or
neuter gender, when used herein, will include all other genders.
6.9 Applicable Law. This Sublease has been made and entered into in the
State of Texas, and shall be governed by and construed in accordance with the
law of the State of Texas. Any cause of action or other proceeding of any kind
or nature shall be conducted in Xxxxxx County, Texas.
6.10 Counterpart Execution. This Sublease may be executed in multiple
original counterparts and shall not be or become effective unless and until
Sublandlord, Subtenant and Landlord have executed and delivered a copy of this
Sublease to each other party hereto. Until each of Sublandlord, Subtenant and
Landlord have so executed and delivered this Sublease to all the other parties
hereto, any party which has signed this or any other counterpart of this
Sublease may withdraw such person's execution by written notice to all other
parties named in the first paragraph.
6.11 Notwithstanding anything in this Sublease to the contrary, if the
Landlord fails to execute a written consent in the form attached to this
Sublease as Exhibit B and made a part hereof for all purposes on or before
February 21, 2000, the Sublandlord shall have the option and right within ten
(10) days after such date to cancel and terminate this Sublease without
liability to Subtenant of any kind or nature by written notice to the Subtenant.
Executed to be effective as of the Effective Date.
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SUBLANDLORD: SUBTENANT:
GTECH CORPORATION, XXXX.XXX, INC.,
a Delaware corporation a Nevada corporation
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXXXX ANTHEMENT JR.
------------------------------- -------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx Anthement Jr.
----------------------------- -----------------------------
Title: Director, Facilities & R.C. Title: COO
---------------------------- ----------------------------
Address: 00 Xxxxxxxxxx Xxx Address: Xxxx.Xxx, Inc.
---------------------------- ----------------------------
W. Greenwich, RI 000 X. Xxxx Xx.
---------------------------- ----------------------------
02817 Xxxxx, Xxxxx 00000
---------------------------- ----------------------------
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EXHIBIT A
Legal Description: The Property is 7.140 acres of land out of the Xxxxx X.
Xxxxxxx Survey No. 57 in Xxxxxx County, Texas, said 7.140
acres of Land being a portion of that certain 14.12 acre
tract of land conveyed to Vantage Properties, Inc. by Deed
recorded in Volume 8760, Page 000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx and all of that certain 0.049 acre tract of
Land conveyed to Vantage Properties, Inc. by Deed recorded
in Volume 9165, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx.
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxx X
Xxxxxx, Xxxxx 00000
[PROPERTY DRAWING]
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EXHIBIT "B"
CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE ("Consent Agreement") dated as of ________, 2000,
is made with reference to that certain sublease (the "Sublease") dated ______,
2000, by and between GTECH Corporation, a Delaware corporation ("Tenant") and
XXXX.XXX, INC. ("Sublessee"), and is entered into between the foregoing parties
and Gateway Central Properties, Inc., ("Landlord"), having an address at TA
Realty Associates, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 with
reference to the following facts:
A. Landlord and Tenant are the parties to that certain master lease (the
"Master Lease") dated as of January 15, 1992, respecting certain premises
("Premises") known as Suite B170, located in the building ("Building") located
at 0000 Xxxxxxx Xxxx, Xxxxx X-000, Xxxxxx, Xxxxx "Cameron Centre".
B. Tenant and Sublessee wish to enter into the Sublease respecting the
portion of the Premises described therein (the "Sublease Premises").
C. The Master Lease provides that Tenant may not enter into any sublease
without Landlord's prior written approval.
D. Tenant and Sublessee have herewith presented the fully-executed Sublease
to Landlord for Landlord's approval, and Landlord is willing to approve the
same, upon all of the terms and conditions hereinafter appearing.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. Neither the Master Lease, the Sublease nor this Consent shall be deemed
to grant Sublessee any rights whatsoever against Landlord. Sublessee hereby
acknowledges and agrees that its sole remedy for any alleged or actual breach of
its rights in connection with the Sublease Premises (as defined in the Sublease)
shall be solely against Tenant.
2. This Consent shall not release Tenant from any existing or future duty,
obligation or liability to Landlord pursuant to the Master Lease, nor shall this
Consent change, modify or amend the Master Lease in any manner. This consent
shall not be deemed Landlord's consent to any further subleases.
3. (a) In the event of Master Lease Termination (as hereinafter defined)
prior to the termination of the Sublease, at Landlord's option, Sublessee agrees
to attorn to Landlord and to recognize Landlord as Sublessee's landlord under
the Sublease, upon the terms and conditions and at the rental rate specified in
the Sublease, and for the then remaining term of the Sublease, except that
Landlord shall not be bound by any provision of the Sublease which in any way
increases Landlord's duties, obligations or liabilities to Sublessee beyond
those owed to Tenant under the Master Lease. Sublessee agrees to execute and
deliver at any time and from time to time, upon request of Landlord, any
instruments which may be necessary or appropriate to evidence such attornment.
Landlord shall not (i) be liable to Sublessee for any act, omission or breach of
the Sublease by Tenant, (ii) be subject to any offsets or defenses which
Sublessee might have against Tenant, (iii) be bound by any rent or additional
rent which Sublessee might have paid in advance to Tenant, or (iv) be bound to
honor any rights of Sublessee in any security deposit made with Tenant except to
the extent Tenant has turned over such security deposit to Landlord. Tenant
hereby agrees that in the event of Master Lease Termination, which occurs on
account of a default by Tenant under the Master Lease, Tenant shall immediately
pay or transfer to Landlord any security deposit then held by Tenant. Landlord
shall have the right, in Landlord's sole discretion, to elect not to have
Sublessee attorn to Landlord and, in this event, the Sublease shall be deemed
terminated on the date of Master Lease Termination and, Landlord shall have no
obligation to permit Sublessee to continue to occupy the Premises.
(b) "Master Lease Termination" means any event, which by voluntary or
involuntary act or by operation of law, might cause or permit the Master Lease
to be terminated, expired, be cancelled, be foreclosed against, or otherwise
come to an end, including but not limited to (1) a default by Tenant under the
Master Lease of any of the terms or provisions thereof; (2) foreclosure
proceedings brought by the holder of any mortgage or trust deed to which the
Master Lease is subject; or (3) the termination of Tenant's leasehold estate by
dispossession proceeding or otherwise.
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(c) In the event of attornment hereunder, Landlord's liability shall
be limited to matters arising during Landlord's ownership of the Building, and
in the event that Landlord (or any successor owner) shall convey or dispose of
the Building to another party, such party shall thereupon be and become
landlord hereunder and shall be deemed to have fully assumed and be liable for
all obligations of this Consent or the Sublease to be performed by Landlord
which first arise after the date of conveyance, including the return of any
security deposit, and Tenant shall attorn to such other party, and Landlord (or
such successor owner) shall, from and after the date of conveyance, be free of
all liabilities and obligations hereunder not then incurred. The liability of
Landlord to Sublessee for any default by landlord under this Consent or the
Sublease after such attornment, or arising in connection with Landlord's
operation, management, leasing, repair, renovation, alteration, or any other
matter relating to the Building or the Sublease Premises, shall be limited to
the interest of the Landlord in the Building (and proceeds thereof). Under no
circumstances shall any present or future general partner of Landlord (if
Landlord is a partnership) have any liability for the performance of Landlord's
obligations under this Consent or the Sublease.
4. In addition to Landlord's rights under Section 3 hereof, in the event
Tenant is in default under any of the terms and provisions of the Master Lease,
Landlord may elect to receive directly from Sublessee all sums due or payable to
Tenant by Sublessee pursuant to the Sublessee, and upon receipt of Landlord's
notice, Sublessee shall thereafter pay to Landlord any and all sums becoming
due or payable under the Sublease and Tenant shall receive from Landlord a
corresponding credit for such sums against any payments then due or thereafter
becoming due from Tenant. Neither the service of such written notice nor the
receipt of such direct payments shall cause Landlord to assume any of Tenant's
duties, obligations and/or liabilities under the Sublease, nor shall such event
impose upon Landlord the duty or obligation to honor the Sublease, nor
subsequently to accept Sublessee's attornment pursuant to Section 3(a) hereof.
5. Sublessee hereby acknowledges that it has read and has knowledge of
all of the terms, provisions, rules and regulations of the Master Lease and
agrees not to do or omit too do anything which would cause Tenant to be in
breach of the Master Lease. Any such act or omission shall also constitute a
breach of this Consent Agreement and shall entitle Landlord to recover any
damage, loss, cost or expense which it thereby suffers, from Sublessee, whether
or not Landlord proceeds against Tenant.
6. In the event of any litigation between the parties hereto with
respect to the subject matter hereof, the unsuccessful party agrees to pay the
successful party or parties, all costs, expenses and reasonable attorney's fees
incurred therein by the successful party or parties, in accordance with Section
4.20 of the Master Lease.
7. This Consent Agreement shall be binding upon and inure to the benefit
of the parties' respective successors and assigns, subject to all agreements
and restrictions contained in the Master Lease, the Sublease and herein with
respect to subleasing, assignment, or other transfer. The agreements contained
herein constitute the entire understanding between the parties with respect to
the subject matter hereof, and supersede all prior agreements, written or oral,
inconsistent herewith. No amendment, modification or change therein will be
effective unless Landlord shall have given its prior written consent thereto.
This Consent Agreement may be amended only in writing, signed by all parties
hereto.
8. Notices required or desired to be given hereunder shall be effective
either upon personal delivery or three (3) days after deposit in the United
State mail, by certified mail, return receipt requested, addressed to the
Landlord at the address set forth above, or to Tenant or Sublessee at the
address of the Premises or of the Sublease Premises, respectively. Any party may
change its address for notice by giving notice in the manner hereinabove
provided.
9. As a condition to the effectiveness of Landlord's consent to the
Sublease, Tenant agrees to pay Landlord concurrently with Tenant's delivery of
an executed counterpart hereof, Two Hundred Fifty Dollars ($250.00) in
reimbursement of Landlord's reasonable attorneys' fees and administrative
expenses incurred in connection with this Consent Agreement, as additional
rent. Landlord's acceptance of such fee shall impose no duty on Landlord to
approve or to execute the Sublease. Tenant shall also promptly pay Landlord any
share of bonus rents, or other items required under the Master Lease in
connection with subleases.
10. Notwithstanding anything to the contrary set forth herein or
elsewhere, if the Master Lease was guaranteed at the time of execution or at
any time prior hereto by any guarantor, then Landlord may at any time hereafter
declare all of its agreements in this Consent Agreement to be null and void and
of no force and effect unless and until Landlord receives a counterpart of this
Consent Agreement indicating approval thereof by any and all such guarantor(s),
and their spouses (if any).
13
11. Tenant and Sublessee agree to indemnify and hold Landlord harmless
from and against any loss, cost, expense, damage or liability, including
reasonable attorneys' fees, incurred as a result of a claim by any person or
entity (i) that it is entitled to a commission, finder's fee or like payment in
connection with the Sublease or (ii) relating to or arising out of the Sublease
or any related agreements or dealings.
12. Tenant agrees to apply all payments received under the Sublease
first to the satisfaction of all of Tenant's obligations under the Master Lease
which are then due and owing by Tenant thereunder before using any part thereof
for any other purpose.
IN WITNESS WHEREOF, the following parties have executed this
Consent to Sublease as of the date first above written.
TENANT:
GTECH CORPORATION
By: /s/ XXXX X. XXXXXXXX
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Name Typed: Xxxx X. Xxxxxxxx
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Title: Director, Facilities & Real Estate
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SUBLESSEE:
XXXX.XXX INC.
By: /s/ [ILLEGIBLE]
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Name Typed: [ILLEGIBLE]
-------------------------------
Title: COO
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LANDLORD:
GATEWAY CENTRAL PROPERTIES, INC.
A CALIFORNIA CORPORATION
By: TA Realty Corporation, As Agent
By:
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Name Typed:
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Title:
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