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Exhibit 10.13
SUBLEASE
THIS SUBLEASE ("Sublease") is made as of the 17th day of February,
2000, by and between North American Mortgage Company ("Sublessor") and
Infogrames North American, as ("Sublessee").
RECITALS
A. Pursuant to a certain lease agreement by and between Sublessor, as
tenant, and CarrAmerica Realty Corporation as ("Landlord"), dated as of
September 22,1998 (the "Prime Lease"), Sublessor leased from Landlord certain
premises, including, without limitation, 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxx Xxxxx, XX 00000, (the "Prime Premises"), of that certain building
commonly known as Warner Center Corporate Park (the "Building") more
particularly described in the Prime Lease. A true and complete copy of the Prime
Lease is attached hereto and made a part hereof as Exhibit "B".
B. Sublessor desires to sublet to Sublessee and Sublessee desires to
sublease from Sublessor Suite B, which is comprised of approximately ten
thousand two hundred forty-six (10,246) rentable square feet of the Prime
Premises included in the Prime Lease, subject to and in accordance with the
terms and conditions hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto do hereby agree as follows:
1. Premises and Term. Sublessor hereby subleases to Sublessee and
Sublessee hereby subleases and takes from Sublessor Suite B, which is comprised
of approximately ten thousand two hundred forty-six (10,246) rentable square
feet as more particularly reflected on the floor plan attached hereto as Exhibit
"A" and all existing leasehold improvements thereto (the "Sublease Premises").
The term of this Sublease ("Term") shall commence on the later of April 1, 2000
and the date that Landlord shall grant its consent to the Sublease (the
"Commencement Date") and shall terminate on October 26. 2003 (the A Termination
Date(approximately)), unless earlier terminated pursuant to the terms of this
Sublease or the Prime Lease.
2. Incorporation of Prime Lease. Except as otherwise provided herein,
all of the terms and conditions of the Prime Lease with respect to the Sublease
Premises are hereby incorporated by reference into this Sublease and shall be
binding upon the parties hereto. Notwithstanding anything contained in the Prime
Lease.
3. Base Rent. Commencing on the Commencement Date, Sublessee shall pay
monthly Base Rent to Sublessor in accordance to the following schedule:
04/01/00 - 03/31/01 $22,028.90
04/01/01 - 03/31/02 $22,689.77
04/01/02 - 03/31/03 $23,370.46
04/01/03 - 10/26/03 $24.071.57
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in advance, without demand, set off or deduction, on the first day of each and
every calendar month during the Term hereof. Upon the execution hereof,
Sublessee shall pay Sublessor twenty-two thousand twenty-eight dollars and
90/100 ($22,028.90) as first month's rent. Rental payments for partial months,
if any, shall be prorated on a daily basis.
Sublessee agrees to pay to Sublessor, at the same time and in the same
manner as Base Rent and other charges due hereunder, all sales and use taxes and
excise taxes imposed or levied upon all payments to be made by Sublessee
hereunder by the State of California, if any, or any other governmental
authority having jurisdiction, and any and all taxes assessed upon all of the
equipment, furniture, fixtures and personal property located in the Sublease
Premises.
Sublessee shall pay to Sublessor, as additional Base Rent, any
increase in Taxes and Operating Costs (as defined in the Prime Lease) at the
same times and in the same manner as Sublessor is obligated to make such
payments to Landlord pursuant to the Prime Lease in an amount equal to
Sublessee's Proportionate Share (as hereinafter defined) of the amount of
Tenant's Share (as defined in the Prime Lease) of any increase in estimated
Taxes and Operating Costs for each calendar year of the Term hereof over the
Base Year 2000 Taxes and Operating Costs. "Sublessee's Proportionate Share"
shall mean a fraction, the numerator of which is the net rentable square feet
contained in the Sublease Premises, and the denominator of which is the total
net rentable square feet being leased by Sublessor pursuant to the Prime Lease.
All operating expenses shall be based upon the Building being ninety-five
percent (95%) occupied and fully assessed for real estate taxes. Subtenant shall
not pay any increase in property taxes due to Landlord's sale, refinance or
reassessment.
All payments of Base Rent and other amounts due hereunder from
Sublessee to Sublessor shall be made to Sublessor at the address set forth in
Paragraph 25 hereof or such other address as Sublessor shall designate from time
to time by written notice to Sublessee. Any Base Rent or other amounts owing by
Sublessee to Sublessor and not paid within five (5) days of the date due shall
bear interest from the sixth date until the date paid at the rate of twelve
percent (12%) per annum.
4. Services. In the event that any additional utilities and/or services
are provided by Landlord to Sublessee beyond the times and amounts normally
provided by Landlord, such services and/or utilities shall be payable by
Sublessee at Landlord's actual cost and any other amounts charged by Landlord.
Sublessor shall not be obligated to provide any services to Sublessee.
Sublessee's sole source of all services is Landlord, pursuant to the Prime
Lease. Sublessor makes no representation about the availability and adequacy of
such services. As of the date of this Sublease, Sublessor has no agreement with
Landlord for after-hours air conditioning. Sublessor shall use commercially
reasonable efforts to assist Sublessee in obtaining the services required by the
Prime Lease from Landlord.
5. Security Deposit. Sublessee, concurrently with Landlord's consent
to this Sublease, shall deposit with Sublessor a Security Deposit in the amount
of twenty-two thousand twenty-eight dollars and 90/100 ($22,028.90), to be held
by Sublessor without interest, and shall be applied by Sublessor toward the cost
of repairing or replacing any equipment damaged or removed from the Sublease
Premises and toward repair of damage (other than ordinary wear, tear, damage and
condemnation) to the Sublease Premises or for any other liabilities or
indebtedness of Sublessee to Sublessor. The deposit is not to be used or applied
by Sublessee as a substitute for rent due any month but may be so applied by
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Sublessor at any time at Sublessor's option. The use, application, or retention
of the Security Deposit, or any portion thereof, by Sublessor shall not prevent
Sublessor from exercising any other right or remedy provided by this Sublease,
the Prime Lease or by law and shall not operate as a limitation on any recovery
to which Sublessor may otherwise be entitled. If the Security Deposit is used,
applied, or retained by Sublessor for the purpose set forth above, Sublessee
agrees, within ten (10) days after a written demand therefor is made by
Sublessor, to deposit cash with the Sublessor in an amount sufficient to restore
the Security Deposit to its original amount; however, nothing contained herein
shall require Sublessor to make such demand upon Sublessee. The balance of the
Security Deposit, if any, will be refunded to Sublessee within thirty (30) days
after the end of the lease term and after Sublessee has vacated said Sublease
Premises, subject to Sublessee's satisfactory compliance with the terms and
conditions of this Sublease and the Prime Lease.
6. Provisions of Prime Lease. Sublessee covenants that, with respect to
the Sublease Premises, Sublessee will: (a) at its own cost and expense, promptly
perform and observe all of the duties and obligations of the tenant under the
Prime Lease that accrue with respect to the Term of the Sublease (other than the
amount of rent) as fully as if Sublessee were said tenant; (b) comply with all
restrictions and requirements of the Prime Lease applicable to the tenant
thereunder; and (c) not do, cause or omit to do any act or thing whereby an
event of default will occur under the Prime Lease or which would, after notice
or lapse of time, constitute an event of default under the Prime Lease.
7. Sublessee's Use of the Sublease Premises. Sublessee shall use and
occupy the Sublease Premises only for general office purposes and for no other
use or purpose whatsoever and Sublessee shall not use or permit the Sublease
Premises to be used in any way that would violate the terms of the Prime Lease.
8. Waiver of Claims and Indemnity. Sublessee hereby releases and waives
all claims against Sublessor and Landlord and each of their respective officers,
directors, agents and employees for injury or damage to person, property or
business sustained in or about the Building or the Sublease Premises by
Sublessee or any of its employees, agents, guests or invitees, except in any
case which would render this release and waiver void under law. Notwithstanding
the foregoing, Sublessee does not release or waive any such claims caused by the
gross negligence or willful misconduct of Sublessor, its agents or employees.
Sublessee will indemnify, defend and save harmless Sublessor and
Landlord and each of their officers, directors, agents and employees from and
against any and all demands, liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable attorneys' fees, which
may be imposed upon or incurred by or asserted against Sublessor or Landlord or
either of their officers, directors, agents or employees by reason of any act or
omission of Sublessee or its agents, officers, employees, guests, contractors,
sublessees, licensees, invitees or customers occurring during the Term of this
Sublease.
9. Sublessee's Insurance. Sublessee, at Sublessee's expense, agrees to
maintain in force during the Term of this Sublease, with respect to the Sublease
Premises, such insurance policies required to be maintained by tenant pursuant
to Section 8 of the Prime Lease. All of such insurance policies shall list the
Landlord, Sublessor and such other parties required by such provisions of the
Prime Lease, if any, (the "Indemnities") as additional insureds. Sublessee
agrees to look solely to, and to seek recovery
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only from, its insurance carrier in the event of any such covered loss or
damage, notwithstanding that such loss or damage may result from the negligence
of Sublessor or of the Indemnitees. Sublessee shall use its best efforts to
obtain its insurer's consent to the preceding sentence without thereby
invalidating its insurance or affecting its right to proceeds payable
thereunder.
10. No Warranties. Except as otherwise expressly provided herein,
Sublessor does not make any representations or warranties of Landlord under the
Prime Lease and does not undertake to perform or observe any of the terms,
covenants and conditions on the part of Landlord to be performed or observed.
Sublessee is fully familiar with the physical condition of the Sublease
Premises, accepts possession of the Sublease Premises in its "as is" condition
and agrees that Sublessor shall have no obligation to prepare the same for
Sublessee's occupancy. Except as otherwise provided herein, Sublessor has made
no representations of whatever nature in connection with the condition of the
Sublease Premises, and Sublessor shall not be liable for any latent or patent
defects therein or for any action or inaction by Landlord with respect to the
condition of the Sublease Premises or the Building.
11. Americans With Disabilities Act. Sublessor makes no representations
with respect to whether the Sublease Premises are in compliance with the
Americans with Disabilities Act ("ADA"). Sublessor hereby disclaims any and all
liability associated with ADA compliance in connection with the Sublease
Premises.
12. Alterations. Except for computer equipment and as provided for
herein, Sublessee shall not make any alterations, improvements, additions,
installations or decorations in or to the Sublease Premises, except as expressly
permitted by the Prime Lease. In the event that Sublessee shall make any
alterations, improvements, additions, installations or decorations which,
pursuant to the terms of the Prime Lease or pursuant to any consent of or
agreement with Landlord are required to be removed upon the expiration of the
Term hereof or of the Prime Lease, Sublessee shall remove the same at its own
cost. Sublessee shall retain all right title and interest in any computer
equipment installed in the Premises.
Sublessor shall provide Subtenant with a Subtenant Improvement
Allowance ("TI Allowance") equal to five dollars ($5.00) per square foot. All
Subtenant Improvement work shall be subject to a mutually acceptable space plan
and design and shall be subject to Landlord's prior written approval. Subtenant
shall be responsible for any excess over the TI Allowance.
Sublessor shall provide Subtenant with a twenty cent (S.20) per usable
square foot allowance ("Space Planning Allowance") towards the cost of the
Subtenant's space plans, working drawings, and engineering plan costs.
13. Fire and Casualty. In the event the Sublease Premises shall be
destroyed or damaged by fire or other casualty, the following shall be
applicable: (a) Landlord, and not Sublessor, shall be responsible for
reconstruction if and to the extent required by the Prime Lease; (b) if the
Prime Lease is terminated by Landlord or Sublessor as a result of such casualty,
this Sublease shall also be terminated as of the same date; and (c) if this
Sublease is terminated, Sublessee shall be responsible for all rental and other
obligations up to the date of such damage or destruction and all such
obligations incurred after the date of such termination shall cease.
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14. Sublessor's Performance. The performance by Landlord of its
obligations under the Prime Lease shall, for all purposes of this Sublease, be
deemed to satisfy all corresponding obligations of Sublessor under this
Sublease, and Sublessor's obligations hereunder with respect to the obligations
of Landlord shall be limited to the extent to which Landlord performs its
obligations under the Prime Lease.
15. Time for Required Action. Whenever any provision of the Prime
Lease, which has been incorporated herein by reference, requires the tenant
thereunder to take any action within a certain period of time after notice from
the Landlord thereunder, then, upon prompt notice from Sublessor to Sublessee,
Sublessee shall take such action before the expiration of the period of time set
forth in said notice under the Prime Lease; provided however, that in the event
of a non-monetary default under the Prime Lease, Sublessee shall cure said
default within the earlier of fifteen (15) days from the date of said notice
under the Prime Lease or ten (10) days before the expiration of the period of
time set forth in said notice.
16. Default. Sublessee shall be in default hereunder if (a) Sublessee
fails to pay when due any rent or other sum to be paid by Sublessee hereunder;
or (b) Sublessee fails to observe and perform any of the other terms, covenants,
conditions, and/or rules and regulations of this Sublease or the Prime Lease and
such failure continues for ten (10) days after notice (provided, however, if
such default is incapable of being cured within ten (10) days, Sublessee shall
not be in default if Sublessee has commenced curative action within such ten
(10) day period, continues diligently to complete the cure, and actually
completes the cure within the period required by the Prime Lease) or if no such
period is specified in the Prime Lease, then within a reasonable time; or (c)
Sublessee abandons or deserts the Sublease Premises without notice to Sublessor
and the continued payment of rent; or (d) if Sublessee assigns this Sublease or
sub-sublets any portion of the Sublease Premises without the prior written
consent of Landlord and Sublessor; or (e) if any petitions shall be filed by or
against Sublessee to declare Sublessee bankrupt or to delay, reduce, or modify
Sublessee's debts or obligations or if any petition shall be filed or other
action taken to reorganize or modify Sublessee's capital structure; or (f) if
Sublessee admits in writing its inability to pay its debts, or if a receiver,
trustee, or other court appointee is appointed for all or a substantial part of
Sublessee's property; or (g) if the leasehold interest of Sublessee is levied
upon or attached by process of law; or (h) if Sublessee makes an assignment for
the benefit of creditors or takes the benefit of any insolvency act, or if any
proceedings are filed by or against Sublessee to declare Sublessee insolvent or
unable to meet its debts; or (i) if a receiver or similar type of appointment or
court appointee or nominee of any name or character is made for Sublessee or its
property.
In the event of any default by Sublessee, Sublessor may have any one or
more of the remedies described in the Prime Lease, in addition to all other
rights and remedies available at law or in equity.
17. Removal of Sublessee's Personal Property. Upon the Termination Date
of the Sublease Term, Sublessee shall remove from the Sublease Premises all of
its personal property and shall peaceably surrender such Sublease Premises and
the keys thereto to Sublessor in as good order and condition as when delivered
to Sublessee, excepting ordinary wear and tear, repairs required to be made by
the Sublessor or Landlord, damage by fire and other unavoidable casualty and
damage due to Sublessor or Landlord. Sublessee shall have the right to remove
trade fixtures installed and paid for by
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the Sublessee provided these items can be removed without material damage to the
Building or Sublease Premises and provided that any holes or other damage to the
Building or Sublease Premises caused by the removal of such items shall be
restored or repaired by Sublessee promptly. If Sublessor or Landlord re-enters
or retakes possession of the Sublease Premises prior to the normal expiration of
this Sublease, Sublessor or Landlord shall have the right, but not the
obligation, to remove from the Sublease Premises all personal property located
therein belonging to Sublessee, and either party may place the property in
storage in a public warehouse at the expense and risk of Sublessee.
18. Holding Over. In no event shall Sublessee remain in possession of
the Sublease Premises aver the Termination Date of the Sublease. In the event
that Sublessee remains in possession of the Sublease Premises after the
Termination Date, Sublessee shall be subject to hold over charges equal to 200%
of the Base Rent, as well as any damages incurred by Sublessor levied by
Landlord, under the Prime Lease, applicable to such holdover. In the event
Sublessee creates a "Hold Over" situation for the entire Premises leased by
Sublessor, provided Sublessor has vacated its space in accordance with the terms
and conditions of the Prime Lease, Sublessee shall be subject to hold over
charges at a rate of two hundred percent of the rent stated in the Prime Lease,
for the entire Premises leased by Sublessor, for the "Hold Over" period. In no
event shall there be any renewal of this Sublease by operation of law.
19. Assignment of Sublease. Sublessee shall not assign this Sublease,
or any part hereof, or further sublet all or any part of the Sublease Premises
without obtaining the prior written consent of Sublessor which shall not be
unreasonably withheld and of Landlord, provided, however, Sublessee shall be
free to assign this Sublease is a merger or reorganization to any fifty percent
(5O%) or more directly or indirectly owned subsidiary of Infogrames
Entertainment. Notwithstanding any such sublease or assignment, Sublessee shall
remain fully liable on this Sublease and shall not be released from performing
any of the terms, covenants and conditions hereof. Any attempt by Sublessee to
assign or sublease all or any part of the Sublease Premises without obtaining
such prior written consent or without Sublessee remaining fully liable on this
Sublease shall be null and void and shall confer no rights on any third person.
20. Conflict or Inconsistency. In case of any conflict or inconsistency
between the provisions of the Prime Lease and those of this Sublease, the
provisions hereof shall, as between the Sublessor and Sublessee, control.
21. Non-Waiver. Failure of Sublessor to declare any default or delay in
taking any action in connection herewith shall not waive such default. No
receipt of moneys by Sublessor from Sublessee after the termination in any way
of the Term of this Sublease or of Sublessee's right of possession hereunder or
after the giving of any notice shall reinstate, continue or extend the Term of
this Sublease or affect any notice given to Sublessee or any suit commenced or
judgment entered prior to receipt of such moneys.
22. Cumulative Rights and Remedies. All rights and remedies under this
Sublease shall be cumulative and none shall exclude any other rights or remedies
allowed by law.
23. Brokerage. Sublessee and Sublessor represent and warrant to each
other that they each have not dealt or consulted with any real estate broker or
agent in connection with this Sublease, other than Colliers International The
Xxxxxx Company ("Broker"), and agree to indemnify and hold each other
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harmless from and against any claims by any other real estate broker or agent
claiming a commission or other form of compensation by virtue of having dealt
with them with regard to this leasing transaction.
24. Attorneys' Fees. In connection with any litigation arising out of
this Sublease, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorneys' fees, which include, without
limitation, those reasonable attorneys' fees incurred by such prevailing party
for the services of its attorneys through all trial and appellate levels and
post-judgment proceedings.
25. Notices. All notices, demands, approvals, consents, requests for
approval or consents or other writings required in this Sublease or in the Prime
Lease to be given, made or sent by either party hereto to the other ("Notice")
shall be in writing and shall be deemed to have been fully given, made or sent
when made by personal service or deposited in the United States Mail, certified
or registered, and postage prepaid and properly addressed as follows:
To Sublessor: North American Mortgage Company7
0000 Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx - Vice President
To Sublessee: Infogrames North American, Inc.
0000 Xxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxx Xxxx, XX 00000
Attn: General Counsel
with copy to the Head of Studio at the Premises.
The address to which any Notice should be given, made or sent to either
party may be changed by written notice given by such party as above provided.
26. Entire Agreement. This Sublease and the Consent and Exhibits,
attached hereto and forming a part hereof, set forth all of the covenants,
promises, agreements, conditions and understandings between Sublessor and
Sublessee concerning the Sublease Premises and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than as are herein set forth. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Sublease shall be
binding upon Sublessor or Sublessee unless reduced to writing and signed by each
of them.
27. Warranty. The individual signing this sublease on behalf of
Sublessee warrants and represents that he has the authority to so execute on
behalf of Sublessee and that this Sublease is a valid and binding obligation of
Sublessee.
28. Signage. Sublessee shall have the right to replace Sublessor's
existing monument sign at Sublessee's sole cost and expense and with prior
written approval from Landlord. It shall be the responsibility to maintain the
sign in accordance with the Master Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
duly executed and
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delivered as of the day and year first above written.
Sublessor Sublessee
North American Mortgage Company Infogrames North American, Inc.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Its: Vice President
Print Name: Xxxxxx X. Xxxxxxx
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Date: 3/9/00 Its: Senior Vice President, Admin,
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Date: 3/7/00
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SUBLEASE ADDENDUM
This Addendum to Sublease is made by and between North America Mortgage
Co. as Sublessor and Infogram North American as Sublessee as of the date of the
Sublease ("the "Sublease") between Sublessor and Sublessee to which this
Addendum is attached and into which the Addendum is incorporated by reference.
1. Sublessee shall lease the furniture as inventoried on Exhibit "D",
attached hereto. The monthly cost of one thousand three hundred dollars
($1,300) shall be included as monthly Base Rent.
Sublessee shall have the right to purchase the furniture at the end of
the Sublease Term for $49,570.
Sublessee shall maintain the furniture throughout the Sublease Term.
Repair, replacement and maintenance shall be the responsibility of the
Sublessee, ordinary wear and tear excepted.
2. Sublessee shall lease the phone system as inventoried on Exhibit "D",
attached hereto at a cost of three thousand four hundred eighty seven
dollars ($3,487) per month which includes telephone maintenance.
Sublessor Sublessee
North American Mortgage Company Infogram North American
By: /s/ Xxxxx X. Xxxxxxx By: Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Its: Vice President
Print Name: Xxxxxx X. Xxxxxxx
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Date: 3/9/00 Its: Senior Vice President, Admin,
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Date: 3/7/00
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EXHIBIT "D"
FURNITURE INVENTORY
27 work station 2 drawer under counter file cabinets
4 5 drawer 36" wide lateral filing cabinets
11 5 drawer 42" wide lateral filing cabinets
3 4 drawer 42" wide lateral filing cabinets
37 side chairs (arm chairs)
1 6 foot wide desk with return and credenza
1 conference table with bases
10 double ped desks
13 credenzas
12 bookcases
4 desks with right returns
2 wood 2 drawer lateral filing cabinets
1 reception desk
1 magazine table (reception)
2 end tables (reception)
1 sofa
4 lounge chairs (reception)
2 30x72 C-leg tables
7 30x48 C-leg tables
1 break room table
8 break room chairs
18 armless caster chairs
16 caster chair with arms
13 various color fabric armless chairs
2 drawer xxxx file cabinet
TELEPHONE INVENTORY
Definity Prologix Solution
Version R6 CSI
200 port station & trunk RTU (right to use license) capable of up to 600 ports
200 port ISDN PRI RTU (capable of up to 600 ports)
200 port Telecommuting RTU (capable of up to 600 ports)
1 - system access terminal (for programming)
Station packs-
3 - 24-port digital pack (supports 72 digital phones)
1 - 16-port analog pack
2 - Transtalk wireless phone (works up to 700 ft.)
Voice Messaging
1 - 10-port, 60 hour Intuity Audix Voice Messaging System (includes call
accounting system)
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EXHIBIT D (CON'T)
PAGE TWO
UPS
I -150 VA UPS (supports Definity Prologix & Intuity Audix)
Network
1 - DS1 board (T1.5 service)
1 - CO pack (8 ports)
2 - DID pack (8 ports each)
1 - 4 port Auxiliary pack (for paging & music on hold)
Paging .'
1 - Paging System (20 amp) with 21 speakers
Voice terminals
21 - 6408 (8 button) digital sets
24 - 8411(10 button) digital sets with RJ1111 outlet for modem
1 - Attendant console (receptionist)
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