SUBLEASE
BETWEEN
AT&T CORP.,
SUBLANDLORD
and
TECHSTAR COMMUNICATIONS, INC.,
SUBTENANT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Dated: October 20, 1997
* * * *
The mailing, delivery or negotiation of this Sublease shall not be deemed
an offer to enter into any transaction or to enter into any other relationship,
whether on the terms contained herein or on any other terms. This Sublease shall
not be binding nor shall either party have any obligations or liabilities or any
rights with respect thereto, or with respect to the premises, unless and until
both parties have executed and delivered this Sublease and the Prime Landlord
has consented in writing to this Sublease. Until such execution and delivery of,
and consent to this Sublease, either party may terminate all negotiation and
discussion of the subject matter hereof, without cause and for any reason,
without recourse or liability.
* * * *
Table of Contents
Page
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1. SUBLEASE ................................................................ 2
2. PARKING ................................................................. 2
3. PRIME LEASE ............................................................. 2
4. DEFINITIONS ............................................................. 4
5. PRIME LANDLORD .......................................................... 4
6. TERM .................................................................... 4
7. RENT .................................................................... 5
8. REFUNDS ................................................................. 7
9. SECURITY DEPOSIT ........................................................ 8
10. SUBTENANT FIT-UP ........................................................ 9
11. ALTERATIONS .............................................................10
12. REPAIRS AND MAINTENANCE .................................................11
13. UTILITIES AND SERVICES ..................................................12
14. ASSIGNMENT AND SUBLEASING ...............................................12
15. INSURANCE ...............................................................14
16. NON-BINDING MEDIATION ...................................................14
17. COMPLIANCE WITH LAWS ....................................................15
18. LIMITATIONS ON SUBLANDLORD'S LIABILITY ..................................16
19. ESTOPPEL CERTIFICATES ...................................................18
20. SUBORDINATION ...........................................................19
21. CASUALTY AND CONDEMNATION ...............................................19
22. CONSENT OR APPROVAL OF PRIME LANDLORD ...................................19
23. NOTICES .................................................................20
(i)
Page
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24. BROKERS ................................................................21
25. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE .........................21
26. TABLE OF CONTENTS - CAPTIONS ...........................................21
27. CONSENT TO SUBLEASE BY PRIME LANDLORD ..................................22
28. ENTIRE AGREEMENT .......................................................22
29. DEFAULT AND RIGHT TO CURE ..............................................22
30. INDEMNIFICATION ........................................................23
EXHIBIT A Description of Subleased Premises ..................................25
EXHIBIT B Prime Lease ........................................................26
(ii)
SUBLEASE
This Sublease is entered into as of this 20 day of October, 1997, by and
between AT&T CORP., a New York corporation, with offices at ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "Sublandlord") and TECHSTAR
COMMUNICATIONS, INC., a _____________ corporation, with offices at ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter "Subtenant").
INTRODUCTORY STATEMENTS
A. By Lease dated August 3, 1990, subsequently amended by a First
Amendment to Lease dated December 10, 1990 and by an undated Second Amendment to
Lease dated March 18, 1991 (the "Prime Lease") Silver Spring Metro Plaza Limited
Partnership (the "Prime Landlord") leased to Sublandlord certain space in the
building known as Silver Spring Metro Plaza II located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter called the "Building").
B. Subtenant has agreed to sublet from Sublandlord certain portions of the
Building.
C. The parties desire to enter into this Sublease defining their
respective rights, duties and liabilities relating to the Subleased Premises
(defined below).
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WITNESSETH
NOW THEREFORE, Sublandlord and Subtenant, in consideration of the mutual
promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
each with intent to be legally bound, for themselves and their respective
successors and assigns, agree as follows:
1. SUBLEASE
Sublandlord, for and in consideration of the Subtenant's payment of the
rent and performance of the covenants contained in this Sublease, does hereby
demise and lease to Subtenant the following portions of the Building: all of
floor sixteen consisting of approximately 31,480 rentable square feet as shown
on the floor plan which is attached hereto as Exhibit A (the "Subleased
Premises").
2. PARKING
Subtenant shall be entitled to use eight (8) parking spaces upon payment
to the Sublandlord as additional rent of the amount charged Sublandlord, subject
to periodic increases. The amount currently charged is $70.00 per space per
month.
3. PRIME LEASE
A true copy of the Prime Lease (with certain financial provisions deleted
for reasons of confidentiality) is attached hereto as Exhibit B. Where not
expressly inconsistent with the terms hereof and except as otherwise stated
herein to the
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contrary, this Sublease shall be subject and subordinate to all of the terms and
conditions contained in the Prime Lease as said terms and conditions affect the
Subleased Premises, and all of the obligations of Sublandlord as tenant under
the Prime Lease, except as otherwise set forth herein, are hereby incorporated
into this Sublease and shall be binding upon Subtenant with respect to the
Subleased Premises to the same extent as if Subtenant were named as tenant and
Sublandlord as landlord under the Prime Lease. For purposes of this Sublease,
references in the Prime Lease to the "Term" shall mean the Term of this Sublease
and references to the "Premises" in the Prime Lease shall mean the Subleased
Premises. Except as otherwise provided herein, when any fraction, factor or
formula, which is based on the number of square feet leased, is expressed in the
Prime Lease, it will be adjusted by substituting the number of square feet of
the Subleased Premises for the number of square feet of the Premises leased in
the Prime Lease. Each party agrees that it shall not do or omit to do anything
which would result in an "Event of Default" as defined in Section 20.1 of the
Prime Lease, and each party agrees to indemnify and hold the other harmless from
and against all claims, demands or liabilities resulting from such party's
breach, violation or nonperformance of any of its obligations under the Prime
Lease, as incorporated herein. With the exceptions set forth herein, Subtenant
shall be entitled to all of the rights and privileges of the Sublandlord as
tenant under the terms of the Prime Lease with respect to the Subleased
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Premises. The rights and privileges of the Sublandlord as tenant which are set
forth in the following sections of the Prime Lease shall not be incorporated
into this Sublease: 3 (to the extent that this section establishes the option to
expand the demised premises), 4 (to the extent that this section establishes any
renewal option), 5, 6, 15.1 (to the extent that this section establishes the
right to make any alterations without Sublandlord's written consent), 16.1 (to
the extent that this section establishes the right to satisfy insurance
obligations through self-insurance), 25, 26, 31, 32, 34, 35, 36.18, 36.19,
36.20.
4. DEFINITIONS
All terms not expressly defined in this Sublease shall have the meanings
given to them in the Prime Lease.
5. PRIME LANDLORD
Subtenant agrees to look solely to the Prime Landlord, and not to
Sublandlord, for the performance of all services and obligations of the Prime
Landlord under the Prime Lease with respect to the Subleased Premises. At
Subtenant's expense and request, Sublandlord will reasonably cooperate with
Subtenant to enable Subtenant to enforce the Sublandlord's rights as tenant
under the Prime Lease with respect to the Subleased Premises.
6. TERM
The term of this Sublease (the "Original Term") shall be forty-three
months, commencing on December 1, 1997 (the "Commencement Date") and ending on
June 30, 2001. The Original
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Term plus any extensions or renewals are sometimes referred to herein as the
"Term."
7. RENT
a. The basic rent, shall accrue at the yearly rate of Four Hundred Nine
Thousand Two Hundred Forty and 00/100 Dollars ($409,240.00) and shall be payable
in advance on the first day of each calendar month during the Original Term in
equal monthly installments of Thirty-Four Thousand One Hundred Three and 33/100
Dollars ($34,103.33) each, subject to the following: (i) a proportionately
lesser sum may be paid for the first and last months of the Term of this
Sublease if the Term commences on a date other than the first day of the month
or ends on a date other than the last day of a month; and (ii) the first monthly
installment of rent shall be abated; and (iii) the monthly installment of rent
for the second month of the Term shall be due and payable in advance upon
execution of this Sublease.
b. In addition to the basic rent set forth in section 7.a. above,
beginning on January 1, 1999 Subtenant shall pay Sublandlord (as and when due
under the terms of the Prime Lease, including monthly installments based on
Prime Landlord's estimates pursuant to the Prime Lease of which Subtenant has
been given notice by Sublandlord), as additional rent, Subtenant's Proportionate
Share of the excess of the amount defined in clause (ii) over the amount defined
in clause (i), as follows: (i) "Tenant's Share of Operating Costs" (as that term
is defined in the Prime Lease) and real estate taxes and insurance costs and
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"Management Fee" (as that term is defined in the Prime Lease) which Sublandlord
is obligated to pay to Prime Landlord under the terms of the Prime Lease for
calendar year 1998; and (ii) the "Tenant's Share of Operating Costs" (as that
term is defined in the Prime Lease) and real estate taxes and insurance costs
and "Management Fee" (as that term is defined in the Prime Lease) which
Sublandlord is obligated to pay to Prime Landlord under the terms of the Prime
lease for the then current calendar year during the Term. Subtenant's
"Proportionate Share" shall be 13.36%, which is the number of square feet in
Subleased Premises divided by number of square feet in the premises leased by
Sublandlord.
c. The terms "basic rent" and "additional rent" are sometimes referred to
herein as "Rent" or "rent" and shall include all sums due from Subtenant to
Sublandlord under the terms of this Sublease. The foregoing sentence
notwithstanding, Rent under this Sublease will not include costs and expenses
that are incurred by Prime Landlord in enforcing Prime Landlord's rights or
remedies pursuant to Section 20.2 of the Prime lease with respect to an "Event
of Default" (as defined in Section 20.1 of the Prime Lease) by Sublandlord,
unless the obligation that was owed by Sublandlord to Prime Landlord that
constituted the basis of such "Event of Default" (as defined in Section 20.1 of
the Prime Lease) was an obligation that Subtenant assumed under this Sublease
and failed to perform, resulting in an "Event of Default" (as defined in Section
29 of this Sublease) by
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Subtenant. All Rent shall be payable at the office of the Sublandlord at the
following address:
AT&T Corp.
▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Lease Administration
or at such other address as directed by prior written notice from Sublandlord to
Subtenant.
d. Sublandlord shall promptly provide Subtenant with (i) a copy of each
and every "Operating Costs Statement" (as that term is defined in the Prime
Lease) that is received by Sublandlord for each and every "Operating Year" (as
that term is defined in the Prime Lease) during the Term; and (ii) notice of all
estimates of "Operating Costs" that are given by Prime Landlord to Sublandlord
under section 7.2 of the Prime Lease as the basis for determining from time to
time the amount of the monthly installments of "Tenant's Share of Operating
Costs" that are payable by Sublandlord under the Prime Lease.
8. REFUNDS
Provided that there is no Event of Default (as defined in Section 29 of
this Sublease) by Subtenant under this Sublease, Sublandlord shall pay to
Subtenant any sums which Sublandlord is entitled to receive from the Prime
Landlord under the Prime Lease with respect to the Subleased Premises during the
Term, including, but not limited to, Subtenant's Proportional Share of any
refunds of basic rent or additional rent which has been paid by Subtenant;
however, such sums shall be paid to Subtenant only
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if Sublandlord has received payment of same from Prime Landlord. Payment (less
any sums expended by Sublandlord for collection thereof) shall be made by
Sublandlord to Subtenant within thirty (30) days of Sublandlord's receipt of any
such sum. If Sublandlord's obligation to pay "Annual Basic Rent" or "Additional
Rent" (as those terms are defined in the Prime Lease) is abated, in whole or in
part, pursuant to Section 11 of the Prime Lease because all or part of the
Subleased Premises are rendered untenantable due to an interruption of services,
then the rent and additional rent under this Sublease shall also be abated, for
the same period of time that "Annual Basic Rent" and "Additional Rent" under the
Prime Lease are abated, as to that portion of the Subleased Premises that are
tenantable.
9. SECURITY DEPOSIT
Subtenant has deposited with Sublandlord the sum of Thirty-Four Thousand
One Hundred Three and 33/100 Dollars ($34,103.33) as security for the full and
faithful performance of every portion of this Sublease to be performed by
Subtenant. If there is an Event of Default (as defined in Section 29 below) by
Subtenant, then Sublandlord may use, apply or retain all or any portion of this
security deposit to remedy such Event of Default. If any portion of said deposit
is so used or applied, Subtenant shall, immediately upon Sublandlord's written
demand therefor, deposit money with Sublandlord in an amount sufficient to
restore the security deposit to its original amount. Sublandlord shall
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not be required to keep this security deposit separate from its general funds,
and Subtenant shall not be entitled to interest on such deposit. If Subtenant
shall fully and faithfully perform every provision of this Sublease to be
performed by it, the security deposit or any balance thereof shall be returned
to Subtenant within thirty (30) days of termination of the Term.
10. SUBTENANT FIT-UP
Subtenant takes premises "AS IS." Any improvements to the Subleased
Premises that may be required by Subtenant to prepare the Subleased Premises for
Subtenant's initial occupancy ("Fit-up Work") shall be at Subtenant's sole cost
and expense, including any space planning and construction document preparation.
Subtenant shall retain its own Contractors to perform all of the Fit-up Work.
With respect to the Fit-up Work, Subtenant shall comply without the obligations
specified in subparagraphs (a) through (f) in section 15.1 of the Prime Lease.
In addition, all plans and specifications and the selection of Subtenant's
contractors for the Fit-up Work, shall be subject to the prior written approval
of Sublandlord, which shall not be withheld, conditioned or delayed
unreasonably. Subject to Sublandlord's requirements for security and the
protection of Sublandlord's confidential information, Subtenant shall be given
access to the Subleased Premises, upon reasonable prior notice to Sublandlord,
in order to inspect and measure the Subleased Premises, design the Fit-up Work,
and show the Subleased Premises to prospective subsubtenants or assignees, or
both. During such access the
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Subtenant shall not cause interference with Sublandlord's operations in the
Subleased Premises or damage to Sublandlord's property or equipment. Sublandlord
may require that all representatives of Subtenant having access to the Subleased
Premises prior to the Commencement Date be accompanied by a designated
representative of Sublandlord while in the Subleased Premises. Subtenant shall
comply with Subtenant's obligations with respect to insurance under Section 15
of this Sublease, including depositing the policy or policies of such required
insurance or certificates thereof with Sublandlord, before any entry into the
Subleased Premises prior to the Commencement Date.
11. ALTERATIONS
Subtenant shall not make any alterations, improvements or installations in
or to the Subleased Premises after the Fit-up Work without the prior written
consent of Sublandlord, which consent will not be unreasonably delayed,
conditioned or withheld by Sublandlord. All alterations and improvements shall
be subject to the terms and conditions of the Prime Lease, and in those
instances, if required, shall be subject to the Prime Landlord's approval as
provided in the Prime Lease. If Sublandlord does not give Subtenant written
notice of disapproval of Subtenant's plans and specifications for any such
alterations, improvements or installations within twenty (20) days after
Subtenant delivers complete plans and specifications for such work, then
Sublandlord will be deemed to have consented to such plans and specifications,
but obtaining such deemed consent from
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the Sublandlord shall not relieve Subtenant of the obligation to obtain the
consent of the Prime Landlord, as required by this Sublease and the Prime Lease.
Unless otherwise expressly agreed by Sublandlord, any alterations, improvements
or installations consented to by Sublandlord shall be made at the sole cost and
expense of Subtenant by contractors who have been approved by Sublandlord, such
approval not to be unreasonably delayed, conditioned or withheld.
12. REPAIRS AND MAINTENANCE
Any repair and maintenance obligations with respect to the Subleased
Premises which are the responsibility of the Sublandlord, as tenant under the
Prime Lease, shall be performed by Subtenant at Subtenant's sole cost and
expense, unless the necessity of the repair is due to any negligent or improper
act by Sublandlord or any negligent or improper failure by Sublandlord to
perform any duty expressly provided in this Sublease. Subtenant agrees that it
will notify Sublandlord promptly of the need for any repair to the Subleased
Premises, even if Sublandlord is not responsible for any such repair.
Notwithstanding anything contained herein to the contrary, in the event that a
condition exists in the Subleased Premises that Prime Landlord is obligated to
repair under the terms of the Prime Lease, Subtenant shall so advise
Sublandlord, and Sublandlord, in turn, shall promptly advise Prime Landlord
thereof. Sublandlord shall have no liability to Subtenant for Prime Landlord's
failure to make any such repair, except for any
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liability resulting from Sublandlord's failure to perform its duty under this
paragraph to notify Prime Landlord of the need for such repair.
13. UTILITIES AND SERVICES
Subtenant shall be entitled to all those services and utilities which
Prime Landlord is required to provide under the terms of the Prime Lease.
Subtenant shall look solely to the Prime Landlord for the provision of such
services and utilities, and Sublandlord shall not be responsible for Prime
Landlord's failure to provide the same nor shall any such failure constitute an
abrogation of any other terms or conditions of this Sublease. In addition to
Subtenant's obligation to pay Subtenant's Proportionate Share of the cost of
such utilities and services, to the extent that Prime Landlord charges
Sublandlord for any services or utilities or increases the cost of such services
or utilities and such charge or increase is due to Subtenant's use of the
Subleased Premises or such utilities or services, Subtenant agrees to pay the
charges therefor within five (5) business days after receipt of Sublandlord's
▇▇▇▇.
14. ASSIGNMENT AND SUBLEASING
Subtenant shall not assign this Sublease or sublet the Subleased Premises,
in whole or in part, without the prior written consent of Sublandlord and Prime
Landlord, which consent Sublandlord shall not unreasonably withhold, condition
or delay but which consent Prime Landlord may withhold in its sole discretion.
If Prime Landlord and Sublandlord give their consent
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to any subsubletting of the Subleased Premises then Subtenant may, at
Subtenant's election and not as an obligation, charge any subsubtenant rent at a
rate that Subtenant determines and that a potential subsubtenant is willing to
pay. If Prime Landlord and Sublandlord give their consent to an assignment of
this Sublease then Subtenant may, at Subtenant's election and not as an
obligation charge any assignee any consideration for such assignment that
Subtenant determines and that a potential assignee is willing to pay. For the
purposes of this paragraph, the term "Net Rent Excess" means (i) the amount (if
any) by which the rent and all other payments and consideration due Subtenant
from any such subsubtenant for the term of such subsublease exceeds the rent due
Sublandlord under this Sublease for such term, less brokerage commissions and
legal, engineering, construction, accounting and other costs that are incurred
by Subtenant (as subsublandlord) and associated with the preparation and
maintenance of the Subleased Premises, and (ii) the amount of the consideration
due Subtenant from any such assignee for an assignment of this Sublease, less
brokerage commissions and legal, engineering, construction, accounting and other
costs that are incurred by Subtenant (as assignor) and associated with the
assignment of this Sublease. Subtenant shall pay (i) one-half of any Net Rent
Excess to Prime Landlord in accordance with Section 25 of the Prime Lease, and
(ii) one-quarter of any Net Rent Excess to Sublandlord.
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15. INSURANCE
Subtenant agrees to comply with all of the insurance requirements and
obligations of Sublandlord as set forth in the Prime Lease and to name both
Sublandlord and Prime Landlord as additional insureds on any required insurance
policies.
16. NON-BINDING MEDIATION
a. If a dispute arises out of or relates to this Sublease, or its breach,
and the parties have not been successful in resolving such dispute through
negotiation, the parties agree to attempt to resolve the dispute through
non-binding mediation by submitting the dispute to a sole mediator selected by
the parties or, at the option of a party, to mediation by the American
Arbitration Association ("AAA"). If such dispute is not resolved by such
non-binding mediation, the parties shall have the right to resort to any
remedies permitted by law. All defenses based on passage of time shall be tolled
during the mediation.
b. The direct expenses of the mediation, including the compensation and
expenses of the mediator and the fees of the AAA, shall be borne equally by the
parties. All other costs incurred by the parties to this Sublease in connection
with any dispute arising out of or relating to this Sublease or its breach,
including the parties' legal expenses and their witnesses' expenses, shall be
borne by the party incurring the expense. The parties, their representatives,
other participants and the mediator shall hold the existence, content and result
of the mediation in confidence.
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17. COMPLIANCE WITH LAWS
Without limiting any other obligation of Subtenant under this Sublease,
Subtenant shall promptly comply with all statutes, ordinances, rules, orders,
regulations and requirements of any Federal, State, municipal, and other
governmental authorities (and the board of fire underwriters and insurance
companies providing coverage) and of any and all of their departments and
bureaus applicable to the use and occupancy of the Subleased Premises by
Subtenant or any subsubtenant or assignee of Subtenant during the Term,
including without limitation all laws relating to environmental matters and the
Americans with Disabilities Act (collectively referred to as "Legal
Requirements") at Subtenant's own cost and expense, to the same extent that
Sublandlord otherwise would be obligated to comply with Legal Requirements with
respect to the Subleased Premises under the Prime Lease. Nothing in this
paragraph shall be deemed a consent by Sublandlord to the alteration, subletting
or assignment of all or any portion of the Subleased Premises or of all or any
of Subtenant's interests in this Sublease.
If there is an Event of Default (as defined in Section 29 of this
Sublease) by Subtenant with respect to Subtenant's obligation to comply with
Legal Requirements or make any repairs or perform any maintenance required by
the terms of this Sublease, then without limiting any other remedy available to
Sublandlord under this Sublease, Sublandlord or its agents may (but shall not be
obligated to) enter the Subleased Premises and
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take such actions as necessary to cure such Event of Default, at the cost and
expense of Subtenant; and, in case of Subtenant's failure to pay therefor, the
said cost and expense shall be added to the next months Rent and be due and
payable as such.
18. LIMITATIONS ON SUBLANDLORD'S LIABILITY
a. Subtenant acknowledges that Sublandlord has made no representations or
warranties with respect to the Building or the Subleased Premises except as
provided in this Sublease and Subtenant accepts the Subleased Premises in AS IS
condition. Notwithstanding anything contained herein to the contrary,
Sublandlord represents and warrants that Sublandlord (i) is duly organized and
formed, validly existing, and in good standing and has all rights, power and
authority to make this Sublease and bind itself thereto through the person set
forth as signatory of Sublandlord set forth below; and (ii) grants Subtenant,
unless there is an Event of Default (as defined in Section 29 of this Sublease)
by Subtenant, sole, actual and quiet and peaceful use, enjoyment and possession
of the Subleased Premises during the Term as herein contemplated.
b. Sublandlord may assign its leasehold estate in the Building, provided
said assignee will assume, recognize and become responsible to Subtenant for the
performance of all of the terms and conditions to be performed by Sublandlord
under this Sublease. If Sublandlord assigns its leasehold estate in the
Building, and provided that the assignee acknowledges in writing its receipt of
the security deposit identified in paragraph 9 of
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this Sublease, Sublandlord shall have no liability for the return of the
security deposit to Subtenant and no other obligation to Subtenant that arises
after that assignment. Subtenant shall then recognize Sublandlord's assignee as
Sublandlord of this Sublease.
c. Sublandlord shall not be required to perform any of the covenants and
obligations of the Prime Landlord under the Prime Lease, and insofar as any of
the obligations of the Sublandlord hereunder are required to be performed under
the Prime Lease by the Prime Landlord thereunder, Subtenant shall rely on and
look solely to the Prime Landlord for the performance thereof. If the Prime
Landlord shall breach its obligation to perform any of its obligations under the
Prime Lease or breach any provision of the Prime Lease pertaining to the
Subleased Premises, Subtenant shall have the right, at Subtenant's expense and
upon prior notice to Sublandlord, and in the name of Sublandlord to make any
demand or institute any action or proceeding, in accordance with and not
contrary to any provision of the Prime Lease, against the Prime Landlord under
the Prime Lease for the enforcement of the Prime Landlord's obligations
thereunder. Sublandlord will reasonably cooperate with Subtenant to allow
Subtenant to make such demand or institute such action or proceeding for the
enforcement of the Prime Landlord's obligations under the Prime Lease, but
Sublandlord will not be required to incur any costs in performing this
obligation. Subtenant shall defend, indemnify and hold Sublandlord harmless from
and against any suit, action, cost,
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expense, damage or liability which arises out of or results from or is alleged
to arise out of or result from Subtenant's exercise of its rights under this
paragraph. The foregoing sentence shall not be construed to modify paragraph
16.6 of this Sublease or otherwise create any obligation by Subtenant to
indemnify Sublandlord for any litigation costs, including attorneys' fees, that
may be incurred by Sublandlord in defending any suit or action that may be
brought by Subtenant against Sublandlord for a breach of Sublandlord's
obligations under this Sublease, regardless of whether such action is instituted
by Subtenant against Sublandlord only or against Sublandlord as a co-defendant
in any suit or action initiated by Subtenant against both Sublandlord and Prime
Landlord.
19. ESTOPPEL CERTIFICATES
Either party hereto (the requested party) agrees that from time to time
upon not less than fifteen (15) days prior notice by the other party (requesting
party), the requested party or its duly authorized representative having
knowledge of the following facts will deliver to the requesting party, or to
such person or persons as the requesting party may designate, a statement in
writing certifying (a) that this Sublease is unmodified and in full force and
effect (or if there have been modifications, that the Sublease as modified is in
full force and effect); (b) the date to which the Rent and other charges have
been paid; (c) that to the best of the requested party's knowledge, the
requesting
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party is not in default under any provision of this Sublease or if in default,
the nature thereof in detail.
20. SUBORDINATION
This Sublease shall be subject and subordinate to the Prime Lease, any
ground lease and to any mortgage or deed of trust thereon or on the fee simple
interest in the Building or the land on which the Building is located.
21. CASUALTY AND CONDEMNATION
If the Prime Lease is terminated with respect to the Subleased Premises by
reason of the occurrence of a casualty or condemnation pursuant to the
provisions of the Prime Lease, this Sublease shall automatically terminate at
the same time and Subtenant shall have no claim against Sublandlord or Prime
Landlord for the loss of its subleasehold interest or any of Subtenant's
property. If the Prime Lease is not terminated with respect to the Subleased
Premises upon the occurrence of a casualty or condemnation, the provisions of
the Prime Lease with respect to casualty or condemnation shall apply to this
Sublease and the Subleased Premises.
22. CONSENT OR APPROVAL OF PRIME LANDLORD
If the consent or approval of Prime Landlord is required under the Prime
Lease with respect to any matter relating to the Subleased Premises, Subtenant
shall be required first to obtain the consent or approval of Sublandlord with
respect thereto (which consent shall not be unreasonably delayed, conditioned or
withheld by Sublandlord), and if Sublandlord grants such consent
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or approval then Sublandlord or Subtenant may forward a request for consent or
approval to the Prime Landlord, but Sublandlord shall not be responsible for
obtaining such consent or approval. Sublandlord shall have no liability to
Subtenant for the failure of Prime Landlord to give its consent.
23. NOTICES
All notices given pursuant to the provisions of this Sublease shall be in
writing, addressed to the party to whom notice is given and sent registered or
certified mail, return receipt requested, in a postpaid envelope or by
nationally recognized overnight delivery service as follows:
To Subtenant:
TechStar Communications, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Attorney, Legal
To Sublandlord:
AT&T Corp.
▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Lease Administration
It is understood and agreed that unless specifically modified by this
Sublease, Sublandlord shall be entitled to the length of notice required to be
given Prime Landlord under the Prime Lease plus five (5) days and shall be
entitled to give Subtenant the amount of notice required to be given tenant
under the Prime Lease less ten (10) days. All notices shall be deemed given upon
receipt or rejection.
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Either party by notice to the other may change or add persons and places
where notices are to be sent or delivered. In no event shall notice have to be
sent on behalf of either party to more than three (3) persons.
24. BROKERS
The parties warrant that they have had no dealings with any real estate
broker or agent in connection with this Sublease, except ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
of Maryland, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ (the "Brokers"). Each party
covenants to pay, hold harmless and indemnify the other from and against any and
all costs, expenses or liabilities for any compensation, commissions and charges
claimed by any other broker or agent with respect to this Sublease or the
negotiation thereof, based upon alleged dealings with the indemnifying party.
Sublandlord agrees to pay the commissions of the Brokers in accordance with
separate agreements.
25. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE
Sublandlord (subject to Prime Landlord's consent) and Subtenant covenant,
warrant and represent that they have full power and proper authority to execute
this Sublease.
26. TABLE OF CONTENTS - CAPTIONS
The Table of Contents and the captions appearing in this Sublease are
inserted only as a matter of convenience and do not define, limit, construe or
describe the scope or intent of the sections of this Sublease nor in any way
affect this Sublease.
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27. CONSENT TO SUBLEASE BY PRIME LANDLORD
This Sublease shall not become operative until and unless the Prime
Landlord has given to Sublandlord its consent hereto. Sublandlord shall not be
responsible for Prime Landlord's failure to consent to this Sublease. Should
Prime Landlord not consent to this Sublease, each party shall be released from
all obligations with respect hereto and neither party shall have any further
rights in law or in equity with respect to this Sublease.
28. ENTIRE AGREEMENT
This Sublease (which includes each of the Exhibits attached hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged into this Sublease. This Sublease may not be changed,
modified, terminated or discharged, in whole or in part, nor any of its
provisions waived except by a written instrument which (a) shall expressly refer
to this Sublease and (b) shall be executed by the party against whom enforcement
of the change, modification, termination, discharge or waiver shall be sought.
29. DEFAULT AND RIGHT TO CURE
The provisions of subparagraphs 20.1.a and 20.1.b of the Prime Lease
notwithstanding, the following shall be deemed an "Event of Default" by
Subtenant under this Sublease: (a) Nonpayment of rent or any other of
Subtenant's monetary obligations due as specified hereunder, if remaining unpaid
more than ten (10) days after receipt of notice from Sublandlord of such failure
to pay; or (b) Subtenant's failure to perform any other
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obligation, covenant, agreement, representation or warranty under this Sublease
within thirty (30) days after receipt of notice from Sublandlord reasonably
specifying the failure. No such failure, however, shall be deemed to exist if
Subtenant in fact shall honestly commence to rectify the same with such
thirty-day period and provided such efforts shall be prosecuted to completion
with reasonable diligence. Delay in rectifying the same shall be excused if due
to causes beyond the reasonable control of Subtenant.
30. INDEMNIFICATION
If the Prime Lease is terminated with respect to the Subleased Premises
pursuant to an Event of Default (as defined in paragraph 20.1 of the Prime
Lease) by Sublandlord under the Prime Lease and Subtenant is totally or
partially evicted, then Sublandlord will indemnify Subtenant for actual,
reasonable costs incurred by Subtenant to vacate the Subleased Premises,
including but not limited to the cost of moving Subtenant's furniture and
equipment from the Subleased Premises and storing such furniture and equipment
for a reasonable amount of time, but Sublandlord will not be liable for
incidental, lost profits or consequential damages. However, Sublandlord will not
be obligated to so indemnify Subtenant if the obligation that was owed by
Sublandlord to Prime Landlord that constituted the basis of such Event of
Default (as defined in Section 20.1 of the Prime Lease) was an obligation that
Subtenant assumed under this Sublease and
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failed to perform, resulting in an Event of Default (as defined in Section 29 of
this Sublease) by Subtenant.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
properly executed as of the day and year first above written.
ATTEST/WITNESS: AT&T CORP.
SUBLANDLORD
/s/ ▇▇▇▇▇▇ San ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇-Schwalze
-------------------------------- --------------------------- (SEAL)
▇▇▇▇▇▇ San ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇-Schwalze -
Transaction Specialist District Manager
-------------------------------- ---------------------------------
Name and Title Name and Title
ATTEST/WITNESS: TECHSTAR COMMUNICATIONS, INC.
SUBTENANT
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------- (SEAL)
▇▇▇▇▇ ▇▇▇▇▇▇ MGR Finance By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (PRESIDENT)
-------------------------------- ---------------------------------
Name and Title Name and Title
Prime Landlord executes this Sublease solely as evidence of its consent to
the Sublease. Prime Landlord's consent to this Sublease shall not in any way be
deemed a modification of the Prime Lease. Prime Landlord's consent to this
Sublease shall not relieve Sublandlord of the obligation to obtain Prime
Landlord's consent to any further subleasing.
ATTEST/WITNESS: SILVER SPRING METRO PLAZA LIMITED
PARTNERSHIP
PRIME LANDLORD
By:
-------------------------------- ---------------------------------
-------------------------------- ---------------------------------
Name and Title Name and Title
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