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EXHIBIT 10.24
SUB-SUBLEASE AGREEMENT
This Sub-sublease Agreement (the "Sub-sublease Agreement made as of the
18th day of December, 1998, by and between Project Discovery, Inc., having an
office at 0000 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
(sometimes hereinafter referred to as "Sub-sublessor"), and MPOWER Solutions,
Inc. (hereinafter referred to as "Sub-sublessee");
W I T N E S S E T H :
WHEREAS, by that certain Lease Agreement dated as of the 21st day of
April, 1995, as amended (hereinafter referred to as the "Prime Lease", which is
attached hereto as "Exhibit A" and is by this reference incorporated herein and
made a part hereof), Property Colorado OBJLW One Corporation's predecessor in
interest Huntington Beach Company (hereinafter referred to as the "Landlord"),
leased to Echo Bay Management Corp. (hereinafter referred to as "Sublessor") as
lessee under the Prime Lease, approximately 64,473 square feet of rentable area,
which rentable area included the entire fifth (5th) floor of the building known
as Plaza Tower One and which is located at 6400 Fiddlers Green Circle, Englewood
Colorado 8011 (hereinafter referred to as the "Building"), at the rent and upon
and subject to the terms and conditions set forth in the Prime Lease; and
WHEREAS, by Sublease Agreement dated as of the 17th day of June, 1997,
as amended (hereinafter referred to as the "Sublease", which is attached hereto
as "Exhibit B" and is by this reference incorporated herein and made a part
hereof), Sublessor leased to Your Choice TV, L.L.C., as sublessee under the
Sublease, approximately 4,154 square feet of rentable area on the fifth (5th)
floor and 8,346 square feet of rentable area on the sixth (6th) floor of the
Building, at the rent and upon and subject to the terms and conditions set forth
in the Sublease; and
WHEREAS, Sub-sublessor acquired all of the right, title and interest of
Your Choice TV, L.L.C. in and to the Sublease by the Assignment of Sublease and
Assumption Agreement dated September 18, 1998 (attached hereto as "Exhibit C");
and
WHEREAS, Sublessor consented to the Assignment of Sublease and
Assumption Agreement between Your Choice TV, L.L.C. and Sub-sublessor by signing
the Consent to Assignment dated September 29, 1998 (attached hereto as "Exhibit
D"); and
WHEREAS, Sub-sublessee desires to sublet from Sub-sublessor
approximately 4,154 rentable square feet on said fifth (5th) floor;
NOW, THEREFORE, the parties hereto, for themselves, their successors
and assigns, mutually covenant and agree as follows:
1. Demised Premises. Sub-sublessor does hereby sublease to
Sub-sublessee, and Sub-sublessee does hereby sublease from Sub-sublessor, for
the term and upon the
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conditions hereinafter provided, an area of approximately 4,154 square feet of
rentable area on the fifth (5th) floor of the Building (such area being
hereinafter referred to as the "Demised Premises"). The Demised Premises has
been assigned Suite # 520, and is outlined in red on the floor plan attached
hereto and made a part hereof as Exhibit E.
2. As-Is Condition. Sub-sublessor hereby subleases to Sub-sublessee,
and Sub-sublessee hereby hires from Sub-sublessor, the Demised Premises, upon
and subject to the terms and conditions herein set forth, in its "as is"
condition existing on the date possession is delivered to Sub-sublessee, without
requiring any alterations, improvements, repairs or decorations to be made by
Sub-sublessor, or at Sub-sublessor's expense, either at the time possession is
given to Sub-sublessee or during the entire term of this Sub-sublease Agreement,
or any extension thereof. In connection therewith, Sub-sublessee represents that
it has thoroughly examined the Building and the Demised Premises to the extent
it has been deemed appropriate.
3. Term. Subject to obtaining the prior written consent of Landlord and
Sublessor, the term of this Sub-sublease Agreement shall commence as of the 1st
day of January, 1999, and shall end on the 16th day of December, 2002, or on
such earlier date upon which said term may expire or be terminated pursuant to
any of the conditions or limitations or other provisions of this Sub-sublease
Agreement or pursuant to law. In the event that either Sublessor's or Landlord's
consent has not been obtained by January 31, 1999, or such later date as
Sub-sublessor and Sub-sublessee may agree to in writing, this Sub-sublease
Agreement shall be and become null and void and of no further force or effect.
4. Monthly Base Rent. The monthly base rent which Sub-sublessee hereby
agrees to pay to Sub-sublessor in advance, and Sub-sublessor hereby agrees to
accept, shall be the sum of Eight Thousand Three Hundred Eight and No/100
Dollars ($8,308.00), commencing at the beginning of the term of this
Sub-sublease Agreement and continuing thereafter on the first day of each and
every calendar month during the term of this Sub-sublease Agreement. If the
obligation of Sub-sublessee to pay rent hereunder begins on a day other than on
the first day of a calendar month, rent from such date until the first day of
the following calendar month shall be prorated at the rate of one-thirtieth
(1/30th) of the monthly installment for each day payable in advance. The monthly
base rent, additional rent and any other charges herein reserved or payable
shall be paid to Sub-sublessor at its offices at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, XX) 00000, Attention: Director of Administration, or at such other
place as Sub-sublessor may designate in writing, in lawful money of the United
States of America without demand therefor and without any deduction, setoff or
abatement whatever, except as expressly provided in this Sub-sublease Agreement.
5. Additional Rent. Sub-sublessee agrees to pay to Sub-sublessor, as
additional rent under this Sub-sublease Agreement, thirty-three percent (33%)
(such percentage representing Sub-sublessee's pro rata share of the total square
feet of rentable area in the Building leased by Sub-sublessor), of the amount of
any additional rent payable by Sub-sublessor under the Sublease on account of
rent escalations pursuant to the section of the Sublease entitled "Additional
Rent." Any additional rent which may be payable to Sub-sublessor shall be
apportioned during the year in which the term of this Sub-sublease
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Agreement commences and during the year in which such term shall end, such that
Sub-sublessee shall be obligated to pay a proportionate share of such
additional rental which is attributable to the number of days of the term hereof
which are included in the period for which such additional rental is payable by
Sub-sublessor under the Sublease. Sub-sublessor shall give Sub-sublessee copies
of all relevant statements and bills received by Sub-sublessor pursuant to the
applicable provisions of the Sublease, together with a statement of the amount
of additional rent, if any, which Sub-sublessee is required to pay under this
paragraph. Sub-sublessee shall pay additional rent within thirty (30) days of
receipt of this statement. Sub-sublessee shall also pay to Sub-sublessor, as
additional rent under this Sub-sublease Agreement, One Hundred percent (100%)
of the amount of any additional rent payable by Sub-sublessor under the Sublease
on account of charges, fees, and expenses incurred due to Sub-sublessee's use of
the Demised Premises pursuant to the section of the Sublease entitled
"Additional Fees and Expenses." Sub-sublessee's obligation to pay additional
rent shall survive the termination of this Sub-sublease Agreement.
6. Deposit. Simultaneously with the execution of this Sub-sublease
Agreement, Sub-sublessee shall deposit with Sub-sublessor the sum of Eight
Thousand Three Hundred Eight and No/100 Dollars ($8,308.00), and provided there
are then no uncured defaults by Sub-sublessee under the terms of this
Sub-sublease Agreement, said deposit shall be a deposit for and applied as a
credit toward the last payment of monthly base rent due hereunder. The deposit
provided herein shall be considered as security for the payment and performance
by Sub-sublessee of all Sub-sublessee's obligations, covenants, conditions and
agreements under this Sub-sublease Agreement, until such time as said deposit
may be applied as monthly base rent as hereinabove required. In the event of any
default by Sub-sublessee hereunder, Sub-sublessor shall have the fight, but
shall not be obligated, to apply all or any portion of the deposit to cure such
default, in which event Sub-sublessee shall be obligated to promptly deposit
with Sub-sublessor that portion of the deposit used to cure such default. In the
event Sub-sublessee fails to perform its obligations and to take possession of
the Demised Premises on the appropriate commencement date provided herein, said
deposit shall not be deemed liquidated damages shall not preclude Sub-sublessor
from recovering additional damages incurred by Sub-sublessor.
7. Use. Sub-sublessee will use and occupy the Demised Premises solely
for general office purposes and in accordance with the use permitted under the
applicable zoning regulations. Without the prior written consent of Landlord,
Sublessor and Sub-sublessor, the Demised Premises will not be used for any
other purposes.
8. Parking. Sub-sublessee shall have the right to sublease from
Sub-sublessor a total of up to fifteen (15) parking spaces in the Parking Garage
located in the Improved Area (as such terms "Parking Garage" and "Improved Area"
are defined in Paragraph 1 of the Prime Lease) at a rental rate of Twenty-Five
and No/100 Dollars ($25.00) per space per month. Such allocation of fifteen (15)
parking spaces represents Sub-sublessee's pro rata share of parking spaces
allocated under the Sublease to Sub-sublessor, which allocation is one (1)
parking space per 277.778 rentable square feet leased by Sub-sublessor from
Sublessor. Other than those parking spaces which Sub-sublessee leases from
Landlord, Sublessor, or any third party at the time of execution of this
Sub-sublease Agreement under a presently-existing lease, sublease, or other
agreement, Sub-sublessee shall not lease any parking spaces directly from
Landlord, Sublessor, or any third party, unless and until all 15
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parking spaces in this "Parking" provision are leased by Sub-sublessee from
Sub-sublessor. Sub-sublessee's use of the Parking Garage shall be subject to all
of the rules, regulations, and limitations established from time to time by the
Landlord.
9. Alterations. Sub-sublessee shall not make any alteration,
improvement, decoration, or installation (hereinafter called "Alterations") in
or to the Demised Premises, without in each instance obtaining the prior written
consent of Landlord, Sublessor and Sub-sublessor. If any Alterations are made
without consent, Landlord, Sublessor or Sub-sublessor may remove the same, and
may correct, repair and restore the Demised Premises and any damage arising from
such removal, and Sub-sublessee shall be liable for any and all costs and
expenses incurred by Landlord, Sublessor or Sub-sublessor in the performance of
this work.
Sub-sublessee may have any Alterations performed by contractors of its
own choice, at its expense, provided that Sub-sublessee has obtained written
approval of the contractor by Landlord, Sublessor and Sub-sublessor, which
approval of Sub-sublessor will be based upon the contractor's being properly
licensed and his financial posture, experience and past job performance, as well
as any other criteria set forth in the Prime Lease. The design of all
Alterations undertaken by Sub-sublessee shall be subject to prior written
approval of Landlord, Sublessor and Sub-sublessor and shall not be commenced
until such approval is obtained. With reasonable notice to Sub-sublessee,
Landlord, Sublessor and Sub-sublessor shall at all times have the right to
inspect the work performed by any contractor selected by Sub-sublessee during
normal business hours.
Sub-sublessee shall, upon request of Landlord, Sublessor or
Sub-sublessor, remove said Alterations, repair all damage resulting from such
removal and restore the Demised Premises to the condition as of the date
possession was delivered to Sub-sublessee. If Sub-sublessee fails or refuses to
remove such Alterations, or fails to correct, repair and restore the Demised
Premises, Landlord, Sublessor or Sub-sublessor may cause the same to be removed,
and repairs and restoration to be made, in which event Sub-sublessee shall
reimburse to the party who caused-said Alterations to be removed and repairs
made, the cost of such removal, repairs and restoration, together with any and
all damages which Landlord, Sublessor or Sub-sublessor may suffer and sustain by
reason of Sub-sublessee's failure or refusal to remove said Alterations.
10. Sub-sublessee's Personal Property. All of Sub-sublessee's personal
property in the Demised Premises shall be at the sole risk of Sublessee. Upon
the expiration or earlier termination of this Sub-sublease Agreement,
Sub-sublessee shall remove all of its furniture, furnishings and equipment,
shall repair all damage resulting from such removal or its use of the Demised
Premises, and shall surrender the Demised Premises, as so required, in good
condition, subject only to reasonable wear and tear and to damage, if any, by
fire or other casualty. The obligations of Sub-sublessee as herein provided
shall survive the termination of this Sub-sublease Agreement.
Sub-sublessor and Sub-sublessee are executing on the same date hereof a
xxxx of sale (attached as Exhibit F hereto) for the sale from Sub-sublessor to
Sub-sublessor of certain personal property located in the Demised Premises.
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11. Terms of Prime Lease and Sublease. All of the terms, provisions,
covenants and conditions of both the Prime Lease and Sublease are incorporated
herein by reference and hereby made a part of and are superior to this
Sub-sublease Agreement, except as herein otherwise expressly provided.
Sub-sublessee shall be obligated, however, to pay only the rent and
additional rent provided for in this Sub-sublease Agreement and not the amounts
of rent and rental escalations provided under the Sublease to be paid by
Sub-sublessor as sublessee. As between the Sub-sublessor and Sub-sublessee
hereto, Sub-sublessee hereby assumes all of the obligations of the
Sub-sublessor, as the sublessee under the Sublease, but only to the extent they
are applicable to the Demised Premises. Sub-sublessee shall obtain and maintain
all insurance types and coverages as specified in the Prime Lease and Sublease
to be obtained and maintained by Sub-sublessor, as sublessee, in amounts not
less than those specified in the Prime Lease and Sublease. All politics of
insurance obtained by Sub-sublessee shall name Landlord, its property manager
and asset manager, Sublessor and Sub-sublessor as additional insureds thereon in
accordance with the Prime Lease and Sublease. Sub-sublessee's insurance shall
be primary over Landlord's, Sublessor's, and Sub-sublessor's insurance.
Sub-sublessee will upon the commencement of the term hereof and on each
anniversary date thereafter deliver to Sub-sublessor certificates reflecting
that Sub-sublessee has obtained and is maintaining the required insurance
coverages in the appropriate amounts.
Notwithstanding anything in this Sub-sublease Agreement to the
contrary, Sub-sublessee agrees that Sub-sublessor shall not be obligated to
furnish for Sub-sublessee any services of any nature whatsoever, including,
without limitation, the furnishing of heat, electrical energy, air conditioning,
elevator service, cleaning, window washing, security or rubbish removal
services. Sub-sublessor, however, shall be obligated to send to Sublessor copies
of any notices or requests for services required as permitted under the Sublease
which Sub-sublessee has provided to Sub-sublessor.
The following provisions of the Sublease are not incorporated herein
Sections 1.5, 2.3, 3.2, Article 5, and Article 6.
Sub-sublessor shall have all of the rights of Sublessor under the
Sublease as against Sub-sublessee but, except as otherwise expressly provided
herein, Sub-sublessor shall have no obligation hereunder except with respect to
warranting Sub-sublessee's quiet enjoyment of the Demised Premises for so long
as Sub-sublessee is not in default hereunder beyond applicable cure periods.
Sub-sublessee acknowledges (i) that it has received a true copy of the
Prime Lease and Sublease, (ii) that it has reviewed the Prime Lease and
Sublease, and (iii) that it is familiar with the contents thereof.
12. Sub-sublessee's Covenants, Sub-sublessee covenants and agrees that
Sub-sublessee will not do or omit to do anything which would constitute a
default under the Prime Lease, Sublease, or this Sub-sublease Agreement.
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13. Indemnification. Sub-sublessee shall and hereby does indemnify and
hold Landlord, Sublessor, and Sub-sublessor harmless from and against any and
all actions, claims, demands, damages, liabilities and expenses (including,
without Limitation, reasonable attorneys' fees) asserted against, imposed upon
or incurred by Landlord, Sublessor, or Sub-sublessor by reason of (a) any
violation caused, suffered or permitted by Sub-sublessee, its agents, servants,
employees or invitees, of any of the terms, covenants or conditions of the
Sublease or Sub-sublease Agreement and (b) any damage or injury to persons or
property occurring upon or in connection with the use or occupancy of the
Demised Premises, except as a result of the gross negligence of Sub-sublessor,
or its agents, employees or invitees.
14. Assignment and Sub-sublease Agreement. Sub-sublessee agrees not to
assign, mortgage, pledge or otherwise encumber this Sub-sublease Agreement, nor
to sublet the Demised Premises or any part thereof, without in each instance
obtaining the prior written consent of Landlord, Sublessor, and Sub-sublessor,
which consent of Sub-sublessor shall not be unreasonably withheld or delayed.
15. Brokers. Sub-sublessee hereby represents and warrants that it has
not dealt with any broker in connection with this Sub-sublease Agreement for the
Demised Premises, except for Xxxxxxx & Xxxxxxxxx of Colorado, Inc.
16. Entire Agreement. This Sub-sublease Agreement contains all of the
covenants, agreements, terms, provisions, conditions, warranties and
understandings relating to the leasing of the Demised Premises and
Sub-sublessor's obligations in connection therewith, and neither Sub-sublessor
nor any agent or representative of Sub-sublessor has made or is making, and
Sub-sublessee in executing and delivering this Sub-sublease Agreement is not
relying upon, any warranties, representations, promises or statements
whatsoever, except to the extent expressly set forth in this Sub-sublease
Agreement. All understandings and agreements, if any, heretofore had between the
parties are merged in this Sub-sublease Agreement, which alone fully and
completely expresses the agreement of the parties. The failure of Sub-sublessor
to insist in any instance upon the strict keeping, observance or performance of
any covenant, agreement, term, provision or condition of this Sub-sublease
Agreement or to exercise any election herein contained shall not be construed as
a waiver or relinquishment for the future of such covenant, agreement, term,
provision, condition or election, but the same shall continue and remain in full
force and effect. No waiver or modification of any covenant, agreement, term,
provision or condition of this Sub-sublease Agreement shall be deemed to have
been made unless expressed in writing and signed by Landlord, Sublessor and
Sub-sublessor. No surrender of possession of the Demised Premises or of any part
thereof or of any remainder of the term of this Sub-sublease Agreement shall
release Sub-sublessee from any of its obligations hereunder unless accepted by
Sub-sublessor in writing. The receipt and retention by Sub-sublessor of monthly
base rent or additional rent from anyone other than Sub-sublessee shall not be
deemed a waiver of the breach by Sub-sublessee of any covenant, agreement, term
or provision of this Sub-sublease Agreement, or as the acceptance of such other
person as a tenant, or as a. release of Sub-sublessee from the further keeping,
observance or performance by Sub-sublessee of the covenants, agreements, terms,
provisions and conditions herein contained. The receipt and retention by
Sub-sublessor of monthly base rent or additional rent with knowledge of the
breach of any covenant, agreement, term, provision or condition herein contained
shall not be deemed a waiver of such breach.
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17. Successors and Assigns. The obligations of tiffs Sub-sublease
Agreement shall bind and benefit the successors and permitted assigns of the
parties with the same effect as if mentioned in each instance where a party
hereto is named or referred to.
18. Notices. Any and all communications delivered hereunder shall be
sent by first-class mail:
if to Sub-sublessor:
Project Discovery, Inc.
0000 X. Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn.: Xxxx X. Xxxxxx
with a copy to:
Xxxxxx Xxxxx LLP
0000 X. Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn.: Xxxx X. Xxxxxxxx, Esq.
and if to Sub-sublessee:
MPOWER Solutions, Inc.
0000 X. Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn.: Xxxxxxxx X. Xxxxxxx
with a copy to:
or to such other address and attention as any of the above shall notify the
others in writing.
19. Landlord's and Sublessor's Consent. This Sub-sublease Agreement
shall be effective upon obtaining the written consent of both the Landlord and
Sublessor (or of their respective duly authorized agents), and it is hereby
acknowledged by Sub-sublessor and Sub-sublessee that Landlord's and Sublessor's
consent to this Sub-sublease Agreement shall not make either Landlord or
Sublessor (or their respective duly authorized agents) a party to tiffs
Sub-sublease Agreement, shall not create any contractual liability or duty on
the part of either Landlord or Sublessor (or their respective duly authorized
agents) to the Sub-sublessee, and shall not in any manner increase, decrease or
otherwise affect the rights and obligations of landlord, Sublessor and
Sub-sublessor under the Prime Lease, Sublease, or this Sub-sublease Agreement in
respect of the Demised Premises.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Sub-sublessor and Sub-sublessee have duly executed
this Sub-sublease Agreement as of the day and year first above written.
SUB-SUBLESSEE:
MPOWER SOLUTIONS, INC.
By: [SIGNATURE ILLEGIBLE]
Its: [TITLE ILLEGIBLE]
SUB-SUBLESSOR:
PROJECT DISCOVERY, INC.
By:
Its:
This Sub-sublease Agreement is consented to by the Sublessor by and
through its duly authorized agent upon the terms acknowledged by Sub-sublessor
and Sub-sublessee in the paragraph of this Sub-sublease Agreement entitled
"Landlord's and Sublessor's Consent".
SUBLESSOR:
By: [SIGNATURE ILLEGIBLE]
------------------------------------
Its: [TITLE ILLEGIBLE]
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