EXHIBIT 10.9
CONSENT TO SUBLEASE
MGM PLAZA
(InterPacket Group, Inc.)
1. COLORADO PLACE PARTNERS, LLC, a Delaware limited liability company
("LANDLORD")(successor-in-interest to Xxxxxxx Xxxxxx Partners - Colorado
Place), and RYSHER ENTERTAINMENT, INC., a Delaware corporation ("TENANT") are
parties to an Office Lease dated as of May 31, 1996 (the "LEASE") for
Premises in an office building located in Santa Monica, California, commonly
known as 0000 Xxxxxxxx Xxxxxx. All capitalized terms defined in the Lease
shall have the same meanings when used herein except as otherwise provided.
2. Xxxxxx has asked Landlord to consent (the "CONSENT") to the
subletting, pursuant to the sublease (the "SUBLEASE") attached hereto as
EXHIBIT "A," of approximately 28,500 square feet of the Premises to
InterPacket Group, Inc., a Delaware corporation ("SUBTENANT").
3. Landlord hereby consents to the subletting of approximately 28,500
square feet of the Premises as depicted in Exhibit "A" attached to the
Sublease, by Tenant to Subtenant pursuant to the terms of the Sublease to the
extent and only to the extent that the Sublease does not enlarge Tenant's
rights under the Lease, give Subtenant any right not granted under the Lease,
or increase Landlord's responsibilities or obligations under the Lease, and
subject to the following terms and conditions:
(a) Nothing herein contained shall be construed to modify, waive,
impair or affect any of the convenants and agreements contained in the Lease
(except as may be herein expressly provided), including without limitation
any of the convenants or agreements contained in Article 14 of the Lease with
respect to assignment and subletting and/or Article 16 of the Lease with
respect to Tenant's indemnity obligations, or to waive any breach of Tenant
in the due keeping, performance or observance thereof. Without limiting the
foregoing, Landlord acknowledges that, pursuant to Section 5.5 of the
Sublease, Subtenant has certain rights and obligations regarding use of
passenger elevators, to which Landlord hereby specifically consents. Tenant
and Subtenant acknowledge that the subleased Premises do not have direct
access to the Building's freight elevators.
(b) Tenant shall be and remain liable and responsible for the due
keeping, performance and observance throughout the term of the Lease, of all
of the covenants, and agreements therein set forth on the part of Tenant to
be kept, performed and observed, including without limitation the obligation
for the payment of the fixed rent, additional rent and all other sums now
and/or hereinafter becoming payable thereunder, expressly including as such
additional rent, any and all charges for any property, material, labor,
utility or other services
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furnished or rendered by Landlord in or in connection with the Premises
demised by the Lease, whether for, or at the request of, Tenant or Subtenant.
(c) The Sublease shall be subject and subordinate at all times to
the Lease, and to all of the covenants and agreements of the Lease and of
this Consent, and Subtenant shall not do, permit or suffer anything to be
done in, or in connection with, Subtenant's use or occupancy of the portion
of the Premises so sublet which would violate any of such covenants and
agreements. Landlord shall have the right, but not the obligation, to
enforce the provisions of the Sublease, including collection of rent reserved
thereunder.
(d) This Consent shall not be construed as a consent by the
Landlord to, or as permitting, any other or further subletting or any
assignment by either Tenant or Subtenant.
(e) The portion of the Premises so sublet shall (subject to all of
the covenants and agreements of the Lease) be used solely for general office
purposes and the purposes permitted under Article 2 of the Lease.
(f) Upon the expiration or any earlier termination of the term of
the Lease with respect to the portion of the Premises so sublet or in case of
the surrender of the Lease by Tenant to Landlord, the Sublease and the term
and estate thereby granted shall terminate as of the effective date of such
expiration, termination or surrender, and Subtenant shall vacate such portion
of the Premises on such date, unless specifically agreed otherwise in writing
by Landlord. Notwithstanding the foregoing, in the event of termination of
the Lease for any reason, including without limitation a voluntary surrender
by Xxxxxx, or in the event of any reentry or repossession of the Premises by
Landlord, Landlord may, at its option, either (i) terminate the Sublease or
(ii) take over all of the right, title and interest of Tenant, as sublessor,
under the Sublease, in which case Subtenant shall attorn to Landlord, but
that nevertheless Landlord shall not (1) be liable for any previous act or
omission of Tenant under the Sublease, (2) be subject to any defense or
offset previously accrued in favor of the Subtenant against Tenant, or (3) be
bound by any previous modification of the Sublease made without Landlord's
written consent, or by any previous prepayment by Subtenant of more than one
month's rent.
(g) This Consent is expressly conditioned upon compliance by the
Tenant and Subtenant with Article 8 of the Lease, with respect to
alterations, repairs, additions, or improvements in, to or about the Premises.
(h) Tenant and Subtenant have represented that the attached
Sublease is a true and complete copy of the Sublease, and agree that a true
and complete copy of each amendment thereto shall be delivered to Landlord
within ten (10) days after the execution and delivery thereof by the parties
thereto, it being understood that Landlord shall not be deemed to be a party
to said Sublease or any other amendment nor bound by any of the covenants or
agreements thereof, and that neither the execution and delivery of this
Consent, nor the receipt by Landlord of a copy of said Sublease or a copy of
any such amendment, shall be deemed to change any
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provision of this Consent or to be a consent to, or an approval by Landlord
of any covenants or agreement contained in said Sublease or any such
amendment.
(i) If there are any Profits from the Sublease, as defined in
Section 14.5 of the Lease, Tenant shall pay to Landlord fifty percent (50%)
of such Profits as additional rent pursuant to the terms of the Lease.
(j) Xxxxxx has agreed to give Landlord immediate notice when any
one or more of the following conditions arise:
(1) The Sublease expires or is terminated;
(2) The rent due pursuant to the Sublease is adjusted;
(3) Subtenant renews or extends the term of the Sublease; or
(4) Subtenant subleases additional space.
(k) Except as specifically provided in this Consent, in the event
of any conflict between the Sublease and the Lease, or between the Sublease
and this Consent, the Lease or this Consent, as applicable, shall prevail.
Except as specifically provided in this Consent, in the event of any conflict
between this Consent and the Lease, the Lease shall prevail.
IN WITNESS WHEREOF, the parties have executed this Consent as of the
date set forth below.
Date: March 3, 2000
LANDLORD:
COLORADO PLACE PARTNERS, LLC
a Delaware limited liability company
By: MP-COLORADO PLACE MANAGER I, INC.
a Delaware corporation
Its Manager
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
--------------------------
Title: Senior V-P
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Date Signed: 3/17/2000
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[signatures continued on page 4]
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[signatures continued from page 3]
TENANT:
RYSHER ENTERTAINMENT, INC.,
a Delaware corporation
By: /s/ Xxx [ILLEGIBLE]
------------------------------
Name: Xxx [ILLEGIBLE]
--------------------------
Title: CEO and President
-------------------------
Date Signed: 3/13/00
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SUBTENANT
INTERPACKET GROUP, INC.,
a Delaware corporation
By: /s/ XXXXXXXX XXXX
------------------------------
Name: Xxxxxxxx Xxxx
--------------------------
Title: CEO
-------------------------
Date Signed: 3/08/00
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EXHIBIT "A"
THE SUBLEASE
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See Exhibit 10.8 filed herewith.
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