THE VASWANIPLACE CORPORATION
LEASE with STARTEC, INC.
TABLE OF CONTENTS
1. DEMISED PREMISES . . . . . . . . . . . . . . . . . . . . .
2. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. MINIMUM RENT . . . . . . . . . . . . . . . . . . . . . . .
5. TAXES AND OPERATING EXPENSES: ADDITIONAL RENT . . . . . . .
6. RENTAL ESCALATION . . . . . . . . . . . . . . . . . . . . .
7. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . .
8. COMPLETION OF PREMISES . . . . . . . . . . . . . . . . . .
9. RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . .
10. SERVICES . . . . . . . . . . . . . . . . . . . . . . . . .
11. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . .
12. PUBLIC LIABILITY INSURANCE . . . . . . . . . . . . . . . .
13. FIRE OR OTHER CASUALTY . . . . . . . . . . . . . . . . . .
14. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . .
15. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . .
16. MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . .
17. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . .
18. MECHANIC'S LIENS . . . . . . . . . . . . . . . . . . . . .
19. SIGNS: ADVERTISEMENT . . . . . . . . . . . . . . . . . . .
20. WEIGHTS: SAFES . . . . . . . . . . . . . . . . . . . . . .
21. ENTRY FOR REPAIRS AND INSPECTIONS . . . . . . . . . . . . .
22. PARKING AND COMMON AREAS . . . . . . . . . . . . . . . . .
23. LIEN FOR RENT . . . . . . . . . . . . . . . . . . . . . . .
24. OTHER COVENANTS OF TENANT . . . . . . . . . . . . . . . . .
A. Use . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Care of Premises . . . . . . . . . . . . . . . . . . . .
C. Trash and Odors . . . . . . . . . . . . . . . . . . . .
D. Assignment or Sublease . . . . . . . . . . . . . . . . .
25. OTHER MUTUAL COVENANTS . . . . . . . . . . . . . . . . . . .
A. Waiver of Subrogation . . . . . . . . . . . . . . . . .
B. LiabilitY for Damage . . . . . . . . . . . . . . . . . .
C. Notices . . . . . . . . . . . . . . . . . . . . . . . .
D. Waiver . . . . . . . . . . . . . . . . . . . . . . . . .
E. Memorandum of Lease . . . . . . . . . . . . . . . . . .
F. Time of Essence . . . . . . . . . . . . . . . . . . . .
G. Late Charges . . . . . . . . . . . . . . . . . . . . . .
26. DEFAULTS: REMEDIES . . . . . . . . . . . . . . . . . . . .
27. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . .
28. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT . . . . . . . . .
29. ESTOPPEL STATEMENT . . . . . . . . . . . . . . . . . . . .
30. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . .
31. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . .
32. PRIOR AGREEMENTS: AMENDMENTS . . . . . . . . . . . . . . .
33. CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . .
34. BENEFIT AND BURDEN . . . . . . . . . . . . . . . . . . . .
35. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . .
36. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . .
37. NO PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . .
38. OPTIONS TO EXTEND TERM . . . . . . . . . . . . . . . . . .
39. ELECTRONIC SECURITY . . . . . . . . . . . . . . . . . . . .
40. OTHER RIGHTS OF LANDLORD . . . . . . . . . . . . . . . . .
41. RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . .
EXHIBIT A Demised Premises Floor Plan
EXHIBIT B Tenant Improvements
EXHIBIT C Rules & Regulations
EXHIBIT D Tenant's Corporate Resolution
EXHIBIT E Cleaning Schedule
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LEASE
THIS LEASE made and entered into as of this 1 day of September, 1994 by and
between The Xxxxxxx Place Corporation, owner of the real property and the
Building situated thereon located at 00000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx,
00000, called "LANDLORD" and Startec, Inc., hereinafter called "TENANT".
WITNESSETH THAT, for in consideration of the rents and mutual covenants and
agreements hereinafter stipulated and intending to be legally bound, the parties
do hereby mutually agree as follows:
1. DEMISED PREMISES:
Landlord does hereby lease and demise to Tenant, and Tenant does
hereby hire and take from Landlord, upon and subject to the terms and conditions
of this Lease, a portion of the Building known as The Xxxxxxx Place, 10411 Motor
City Drive, Bethesda, Maryland, 20817 (the "Building") in Xxxxxxxxxx Mall Auto
Park, Xxxxxxxxxx County, Maryland, consisting of approximately 5,396 rentable
square feet on the third (3rd) floor as shown on the floor plan(s) attached
hereto as "Exhibit "A" which shall be supplied in advance by Tenant and attached
to the Lease and forming a part hereof (hereinafter referred to as the "Demised
Premises").
2. TERM:
A. The term of this Lease shall commence on November 1, 1994, and shall end
on the last day of the calendar month in which occurs the day preceding the 5th
anniversary of the Term Commencement Date (the "Term"). The "Term Commencement
Date" shall mean the earlier of (a) 5 business days after the Tenant's receipt
of notice from Landlord that the Demised Premises are ready for occupancy, or
(b) the date Tenant or anyone claiming under or through Tenant first occupies
the Demised Premises or any portion thereof excluding Tenant's installation of
cabling or minor maintenance work. Said commencement date to be not later
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than sixty (60) days after full lease execution.
B. Subject to Xxxxxxx 0X xxxxx, the Demised Premises shall be deemed ready
for occupancy when the work in the Demised Premises in accordance with Exhibit
"B" attached hereto and made a part thereof, (the "Tenant Improvements") shall
be substantially completed as certified by an architect or engineer retained by
Landlord, notwithstanding that minor or insubstantial details of construction,
mechanical adjustments or decorations remain to be performed, the non-completion
of which does not materially interfere with Tenant's use and occupancy of the
Demised Premises
C. If the completion of the Tenant Improvements shall be delayed caused by
Tenant, or changes, alterations or additions required or made by Tenant in the
plans and/or specifications of the Tenant Improvements as set forth in Exhibit
"B" or otherwise, then the Demised Premises shall be deemed ready for occupancy
by Tenant when the Tenant improvements, less any additional work, changes,
alterations, or additions requested by the Tenant are, or would have been,
substantially completed.
3. USE
Tenant will use and occupy the Demised Premises solely for general
office purposes. Tenant agrees not to use the Demised Premises for any purpose
which interferes with the use and enjoyment of the Building by other Tenants
occupying space therein or which would increase the premiums for insurance
coverage payable by Landlord in respect of the Building. Landlord represents
that Tenant's use as sa forth above does not violate the certificate of
occupancy for the Building.
4. MINIMUM RENT
A. Tenant shall pay as minimum annual rent for the Demised Premises
the sum of eighty nine thousand, thirty-four and 00/100ths Dollars ($89,034.00),
which amount shall be the product of $16.50 multiplied by the total number of
square feet in the Demised Premises. Such sum shall be payable during the Term,
in advance, in equal monthly installments of seven thousand, four hundred
nineteen and 50/100ths Dollars ($7,419.50). Subject to the Provisions of Section
25 (G) of this lease, each such monthly installment shall be paid on the first
day of each month of the Term hereof commencing with the first month of the
Term.
B. If the Term begins on a day other than the first day of the month,
minimum rent from the Term Commencement Date to the first day of the full
calendar month following shall be prorated at the rate of one-thirtieth (1/30)
of the fixed monthly rental for each day and shall be payable on the execution
of this Lease. Any overage for the 1st months rent, which is due and payable at
lease execution shall be applied to the 2nd months rent at a rate of one day of
rent credit for each one day of
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overage payment.
C. All rent and other sums due to Landlord hereunder (collectively,
the "Rent") shall be payable at the office address of Landlord first above
given, or to such other party or at such other address as Landlord may
designate, from time to time, by written notice to Tenant, without demand and
without deduction, set-off or counterclaim.
5. TAXES AND OPERATING EXPENSES: ADDITIONAL RENT
A. As used in this Section 5, the following terms shall
have the following meanings:
(1) "Taxes" shall mean all real estate taxes, impositions and
assessments, general or special, ordinary or extraordinary, foreseen or
unforeseen, imposed upon the Property or with respect to the ownership thereof.
If, due to a future change in the method of taxation, any franchise, income,
profit or other tax, however, designated, shall be levied or imposed in
substitution, in whole or in part, for (or in lieu of) any tax which would
otherwise be included within the definition of Taxes, such other tax shall be
deemed to be included within "Taxes" as defined herein.
(2) "Base Year" for real estate taxes and operating expenses shall be
1994. Landlord represents that the Building has been fully assessed for the Base
Year.
(3) "Tenant's Proportionate Share" shall be five and six tenths
percent (5.6%), which Landlord and Tenant agree is the percentage which the
square footage of the Demised Premises bears to the square footage of the
Building.
(4) "Operating Expenses" shall mean all expenses, costs and
disbursements of every kind and nature which Landlord shall pay or become
obligated to pay in respect of the operation, maintenance, repair and management
of the Property and shall include, without limitation (a) wages and salaries
(and taxes imposed upon employers with respect to such wages and salaries) and
fringe benefits paid to persons employed by Landlord or Landlord's managing
agent, if any, for rendering service in the normal operation, maintenance and
repair of the Building and Property, (b) contract costs of independent
contractors hired for the operation, maintenance and repair of the Building and
Property; (c) costs of electricity, steam, water, sewer, fuel and other
utilities chargeable to the operation and maintenance of the Building and
Property; (d) costs of insurance for the Building and Property, including fire
and extended coverage, elevator, boiler, sprinkler leakage, water damage, public
liability and property damage, plate glass, and rent protection, but excluding
any charge for increased premiums due to acts or omissions of other occupants of
the Building because of extra risk which are reimbursed to Landlord by such
other occupants;
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(e) costs of supplies, tools, materials necessary for the normal operation,
maintenance and repair of the Building, Property and equipment; (f) interest,
depreciation or amortization and rents paid or incurred by Landlord for
machinery, equipment or other capital improvements used or useful only in the
maintenance or operation of the Building; and (g) any and all sums for
landscaping, ground maintenance, sanitation control, cleaning, lighting, snow
removal, parking area and driveway resurfacing, when reasonably required, fire
protection, policing, security and other expenses, reasonably required for the
upkeep, maintenance and operation of the Property by virtue of the ownership
thereof, including, without limitation, reasonable management fees payable to
any managing agent employed or engaged by Landlord.
B. In addition to the minimum annual rent, commencing on the first day
of the first calendar month following receipt of Landlord's statement therefore,
Tenant shall pay in monthly installments or in a lump sum if in arrears, as
additional rent hereunder, Tenant's Proportionate Share of the amount by which
all Taxes (as defined in article 5A(1) above) imposed upon The Property for and
with respect to each year and any renewals or extensions thereof, exceeds the
Taxes assessed or imposed upon the Property for the Base Year. Said Expenses
shall be passed through to Tenant in Year Two of the Lease Term, and each
anniversary of the lease term thereafter.
C. (i) Tenant hereby agrees to pay as additional rent, Tenant's
Proportionate Share of the amount by which Operating Expenses Grossed up as if
the Building was ninety-five percent (95%) occupied incurred by Landlord in the
Base Year Increase for and with respect to each calendar year of the Term after
the Base Year, and any renewals or extensions thereof. Operating Expenses will
be appropriately prorated for the portion of any calendar year. Said expenses
shall be passed through to Tenant in Year Two of the lease term, and each
anniversary of the lease term thereafter.
(ii) If the Expiration Date of this Lease does not coincide with
the last day of the real estate tax fiscal year, the portion of the increase in
Real Estate Taxes payable by Tenant hereunder for the real estate fiscal year in
which the Expiration Date occurs shall be appropriately adjusted and pro-rated
between Landlord and Tenant based upon the respective number of days in such
real estate tax fiscal year prior to and after the Expiration Date.
(iii) As an example of estimated increases in Operating Expenses
based on a Calendar Year (which is equal to the building's fiscal year) assume
total building expense increases are $100,000 between January 1 and December 31
and the Tenant's proportionate share is twenty percent (20%) Tenant would be
responsible for an increase in operating rent of $20,000 in 12) or $l,666.67 in
additional rent. thly installments ($20,000\12) or $1,666.67 in additional rent.
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(D) If Tenant's usage of Building electricity substantially exceeds by
reasonable comparison, on a square foot basis, other building tenants'
electricity usage, then Landlord, at Tenant's expense, shall have the option to
separately meter Tenant's space for electrical usage and charge Tenant for the
additional amount of electricity used.
6. RENTAL ESCALATION
In addition to the adjustment to the monthly rent for increases in Real
Estate Taxes and Operating Expenses, Tenant's Base Year Rental will be increased
in the beginning of year two of the lease term, and each anniversary thereafter
at three percent (3%) per annum.
7. SECURITY DEPOSIT
As additional security for the full and prompt performance by Tenant of the
terms and covenants of this Lease, Tenant has deposited with Landlord the sum of
seven thousand four hundred nineteen and 50/100ths Dollars ($7,419.50)
representing one month's rent as Security Deposit, which shall not constitute
rent for any month unless so applied by Landlord on account of Tenant's default.
Tenant shall, upon demand, restore any portion of the Security Deposit which may
be applied by Landlord to cure any default by Tenant hereunder. To the extent
that Landlord has not applied the Security Deposit on account of a default, the
Security Deposit shall be returned to Tenant promptly after termination of this
Lease. In the event Tenant fails to take possession of the Demised Premises on
the Term Commencement Date or vacates or abandons the Demised Premises during
the Term, the Security Deposit shall not be deemed to be liquidated damages, and
such application of the Security Deposit shall not preclude Landlord from
recovering from Tenant all additional damages incurred by Landlord. If Tenant
fails at any time to perform its obligations, Landlord may at its option apply
said deposit, or so much thereof as is required, to cure Tenant's default, but
if prior to the termination of this lease Landlord depletes said deposit in
whole or in part, Tenant shall immediately restore the amount so used by
Landlord. Following termination of this lease and satisfaction of all Tenant
obligations hereunder, Landlord shall return to Tenant any unused portion of the
Security Deposit plus any interest due.
8. COMPLETION OF PREMISES
Promptly after the execution of this lease by the parties hereto, the
Landlord shall cause the leased premises to be completed in accordance with the
work described on said Exhibit "B" up to $13.50 per square foot. In the event
that the cost of the total work exceeds $13.50 per square foot and substantial
completion of the premises has occurred, Tenant hereby agrees to promptly pay
and reimburse Landlord for the full cost of such work to the extent it is over
$13.50 per square foot upon the substantial completion thereof. Landlord shall
have the right to
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provide Tenant with Turnkey construction of the Premises in lieu of the
allowance provided above, subject to a mutually acceptable space plan and
schedule of finishes. Following substantial completion of said work, Landlord
shall deliver the premises to Tenant who shall accept the same and promptly
furnish the premises for its business purposes and use. Landlord has the right
to reasonably approve all tenant improvements as required by Tenant. All such
costs including but not limited to design services, construction drawings to be
provided by Landlord, general contractor's profit and overhead and construction
management are included in the tenant improvement allowance. In order to ensure
timely completion of construction of improvements, Landlord and Tenant shall
agree to an estimated timetable (said estimated timetable shall be submitted to
Tenant within five (5) business days of receipt of the final approved space
plan) whereby each party shall make best efforts to meet certain dates in the
design and construction process. Tenant shall be permitted to enter and have
prior access to the Premises along with its agent, contractors, architects,
etc., for the purpose of installing telephone, computer equipment and cabling
during the last fifteen (15) days of construction (provided such work by Tenant
or Tenant's agent, contractors, architects, etc. does not unreasonably interfere
with Landlord's construction work) without liability for rent during such
period, but subject to all other terms, covenants and conditions of the lease.
Tenant's allowance shall not include the cost of the preliminary spare plan,
which shall be paid by the landlord. Tenant shall have the right to submit to
Landlord two (2) construction bids from licensed general contractors for
consideration to perform tenant's buildout. The demised premises as well as
Common areas on the third floor shall be in broom clean condition, consistent
with other floors in the building, prior to tenant occupancy of the demised
premises.
9. RULES AND REGULATIONS
The "Rules and Regulations" in regard to the Building and the Tenants
occupying offices therein, attached hereto as Exhibit "C" and made a part
hereof, and such reasonable alterations, additions or modifications thereof as
may from time to time be made by Landlord, shall be deemed a part of this Lease,
with the same effect as though written herein, and Tenant covenants that the
Rules and regulations shall be faithfully observed by Tenant, Tenant's employees
and all persons visiting the Demised Premises or claiming under Tenant, the
right being hereby expressly reserved by Landlord to add to, alter or rescind,
from time to time, such Rules and Regulations, which changes shall take effect
immediately after notice thereof in writing shall have been served on Tenant by
delivering the same to Tenant by certified mail return receipt requested.
Landlord shall not be responsible for any violation or disregard of any of the
Rules and regulations or any rules and regulations hereafter adopted, by any
other Tenant, occupant or person in the Building of which the Demised Premises
are a part; and nothing herein shall impose any obligation on Landlord to
enforce the Rules and
8
Regulations or any of them against any other Tenant, occupant or person, but the
same are to be Rules and Regulations to be abided by and complied with by Tenant
hereunder. In the event of a conflict between the rules and regulations as set
forth in Exhibit C and the Terms of this Lease, the terms of this lease shall
prevail.
10. SERVICES
Landlord agrees to maintain the building to the standard of other
similar class "A" buildings in the North Bethesda Office Market. As long as
Tenant is not in default after expiration of all applicable notice and cure
periods and the elapse of all opportunities to cure under any of the provisions
of this lease, Landlord shall provide the following facilities and services to
Tenant without additional charge (except as elsewhere provided herein). Landlord
agrees to provide;
(A) Heat and air conditioning necessary, in Landlord's reasonable
judgment, for comfortable occupancy of the Demised Premises, Monday through
Friday from 8:00 AM to 6:00 PM, and on Saturdays from 8:00 AM to 1:00 PM,
holidays noted below excepted. Heat and air conditioning required by Tenant at
other times shall be supplied upon reasonable notice, and shall be paid for by
Tenant, promptly upon billing,
(B) Passenger elevator service to the Demised Premises during all
working days (Saturday other than 9:00 AM to 1:00 PM, Sunday and the holidays
noted below excepted) from 8:00 AM to 6:00 PM, with one elevator subject to call
at all other times. Tenant and its employees and agents shall have access to the
Demised Premises at all times, subject to compliance with such security measures
as shall be in effect for the Building. The Building will be accessed after
hours by key cards. Landlord will provide Tenant with 11 card keys. Additional
card keys are available at $8.50 each.
(C) The holidays referred to in Section 10A and 10B above are New
Year's Day, Xxxxxx Xxxxxx Xxxx Day, Washington's Birthday, Memorial Day, Fourth
of July, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas
Day, and those days designated by the federal government, and any other national
holiday promulgated by a Presidential Executive Order or Congressional Act.
(D) Janitorial service to Demised Premises customary for first class
office buildings in Xxxxxxxxxx County, Maryland. Any and all additional or
specialized janitorial service desired by Tenant shall be contracted for by
Tenant directly with Landlord's janitorial agent and the cost and payment
thereof shall be and remain the sole responsibility of Tenant. Exhibit E
specifies existing building Cleaning standards and procedures.
(E) All structural repairs to the Building and all
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repairs which may be needed to the mechanical, electrical, air-conditioning,
heating and plumbing systems in the Demised Premises, excluding repairs to any
non-Building standard fixtures or other improvements installed or made by or at
the request of Tenant (other than the Tenant Improvements) and requiring usual
or special maintenance. In the event that any repair is required by reason of
the negligence or abuse of Tenant or its agents, employees, invitees or of any
other person using the Demised Premises with Tenant's consent, express or
implied, Landlord may make such repair and add the cost thereof to the first
installment of rent which will thereafter become due, unless Landlord shall have
actually recovered such cost through insurance proceeds.
(F) Water for drinking, lavatory and toilet purposes drawn through
fixtures installed by Landlord; and
(G) Electric current to the Demised Premises for lighting and normal
office use and for heating and air conditioning. Tenant shall not install or
operate in Demised Premises any computers or other electrically operated
equipment or other machinery, other than modern day office equipment such as
computers, copiers, fax machines, typewriters, word processing machines,
micro-computers, radios, televisions, tape recorders, dictaphones, photocopying
equipment, and adding machines normally employed for general office use, or any
plumbing fixtures, without first obtaining the prior written consent of the
Landlord. Landlord may condition such consent upon the payment by Tenant of
additional rent as compensation for any risks, services, or utilities Landlord
deems necessary.
(H) It is understood that Landlord does not warrant that any of the
services referred to in this Section 10 will be free from interruption from
causes beyond the reasonable control of Landlord. However, in such event, the
Landlord will use his best efforts to effect the restoration of same. Landlord
shall not be liable to Tenant, its employees, agents, invitees or licensees for
any damages or injury to person or property arising from the bursting, leaking
or overflowing of water, sewer, or steam pipes, heating or plumbing fixture, or
electrical wires or fixture unless due to Landlord's, gross negligence. No
interruption of service shall ever be deemed an eviction or disturbance thereof
or render Landlord liable to Tenant for damage by abatement of Rent or otherwise
or relieve Tenant from performance of Tenant's obligations under this Lease.
11. INDEMNIFICATION
Landlord and Tenant mutually agree to indemnify, defend and hold
harmless each other and the manager of the Property and/or Building and their
officers, employees and agents from and against all suits, actions, damages,
liability and expense (including reasonable attorneys' fees) in connection with
loss of life, bodily or personal injury or property damage arising
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directly or indirectly from any cause whatsoever in connection with the
occupancy, conduct, operation, ownership or maintenance of the Demised Premises
or the building from any work or thing whatever done or which was not done in
and on the Demised Premises, or the building arising from any breach or default
on the part of the Landlord or Tenant in the performance of any covenant or
agreement on the part of Landlord or Tenant to be performed, or under the law,
or arising from any act, omission or negligence of Landlord or Tenant, or any of
their agents, contractors, servants, employees, licensees or invitees, and in
case any action or proceeding be brought against the other, each covenants at
Landlord or Tenant's cost and expense to resist or defend such action or
proceeding or to cause it to be resisted or defended by an insurer, the cost of
which shall be offset by any insurance proceeds obtained.
12. PUBLIC LIABILITY INSURANCE
(A) Tenant, at its own cost and expense, shall obtain and maintain in
full force and effect during the Term, and any extensions or renewals,
comprehensive general public liability insurance with a combined single limit
coverage of not less than $1,000,000on account of bodily injuries and/or death
and property damage.
(B) All such policies of insurance shall name Landlord and if required
mortgagee of Landlord as additional insureds. All such policies of insurance
shall be issued by a financially responsible company or companies authorized to
issue such policy or policies, and licensed to do business in the State of
Maryland, and shall contain provisions to the effect that no cancellation
thereof shall be effective without thirty (30) days' prior written notice to
Landlord and any mortgagee. Tenant shall lodge with Landlord duplicate originals
or certificates of such insurance at or prior to the Term Commencement Date,
together with evidence of paid-up premiums, and shall lodge with Landlord
renewals thereof at least thirty (30) days' prior to expiration of any such
policies.
13. FIRE OR OTHER CASUALTY
In case of damage to the Demised Premises or damages to the Building
specifically caused by the Tenant or its agents or invitees by fire or other
casualty, Tenant shall give immediate notice thereof to Landlord. Subject to the
rights of any mortgagee of Landlord's estate, Landlord may, at its option
thereupon undertake the repair and restoration of the Demised Premises or the
Building to substantially the same condition as existed prior to the casualty,
at the expense of the Tenant, subject to the delays which may arise by reason of
adjustment of loss under insurance policies and for delays beyond the reasonable
control of Landlord. In the event the damage shall be such that Landlord
reasonably determines that it cannot be repaired within ninety (90) days from
the date of such damage, Landlord may at its option either (a) by written notice
to Tenant
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given within sixty (60) days after Landlord is notified of the casualty,
terminate this Lease as of a date specified in such notice (which shall not be
more than ninety (90) days after the occurrence as aforesaid) and the Rent
(taking into account any abatement) shall be adjusted to the termination date
and Tenant shall thereupon promptly vacate the Demised Premises, or (b) restore
the Building and/or Demised Premises with reasonable promptness in which event
Rent shall equitably xxxxx.
Notwithstanding the foregoing, Tenant may cancel this Lease by
delivering written notice to Landlord in the event that the Landlord elects to
repair the Demised Premises and such repairs are not substantially complete
within 110 days of the occurrence of the damage.
Landlord shall pursue all claims it has with insurance companies as a
result of any loss by fire or other casualty in such a manner as Landlord deems
appropriate.
14. EMINENT DOMAIN
(A) If the whole of the Property, Building or Demised Premises shall
be taken or condemned for a public or quasi-public use under any statute or by
right of eminent domain or private purchase in lieu thereof by any competent
authority, Tenant shall have no claim against Landlord and shall not have any
claim or right to any portion of the amount that may be awarded as damages or
paid as a result of any such condemnation or purchase; and all rights of the
Tenant to damages therefore are hereby assigned by Tenant to Landlord. The
foregoing shall not, however, deprive Tenant of any separate award for moving
expenses or for any other award which would not reduce the award payable to
Landlord. Upon the date the right to possession shall vest in the condemning
authority, this Lease shall cease and terminate with Rent adjusted to such date
and Tenant shall have no claim against Landlord for value of any unexpired term
of this Lease.
(B) If part of the Demised Premises shall be acquired or condemned as
aforesaid, and such partial acquisition or condemnation shall render the
remaining portion unsuitable for the business of Tenant (in the reasonable
opinion of Landlord), the term of the Lease shall cease and terminate as
provided in Section 14A hereof, provided, however, that diminution of floor area
shall not in and of itself be conclusive as to whether the portion of the
Demised Premises remaining after such acquisition is unsuitable for Tenant's
business. If such partial taking is not extensive enough to render the Demised
Premises unsuitable for the business of Tenant, then this Lease shall continue
in effect except that the minimum rent shall be reduced in the same proportion
that the floor area of the Demised Premises taken bears to the original floor
area demised. Subject to the rights of any mortgagee of Landlord's estate,
Landlord may, at its option, upon receipt of the net award in condemnation, make
all necessary repairs or alterations to the Building so as to render
12
the portion of the Building not taken a complete architectural unit, but
Landlord shall in no event be obligated to pay to Tenant any portion of the net
amount received by Landlord as damages for the part of the Demised Premises so
taken. "Net amount received by Landlord" shall mean that portion of the award in
condemnation which is free and clear to Landlord of any sums required to be paid
by Landlord to the holder of any mortgage on the property so condemned for the
value of the diminished fee, as well as all expenses and legal fees incurred by
Landlord in connection with the condemnation proceeding.
(C) If part of the Building, but no part of the Demised Premises, is
taken or condemned as aforesaid, and, in the reasonable opinion of Landlord,
such partial acquisition or condemnation shall render the Demised Premises
unsuitable for the business of Tenant, the term of the Lease shall cease and
terminate as provided in Section 14A hereof, by Landlord sending written notice
to such effect to Tenant, whereupon Tenant shall immediately vacate the Demised
Premises.
15. ALTERATIONS
Other than the Initial Tenant Improvements, Tenant shall make no
alterations, installations, additions or improvements (herein collectively
called "Alterations") in or to the Demised Premises or the Building, structural
or otherwise, without Landlord's prior written consent. Tenant, at its sole cost
and expense, must provide Landlord with a copy of the full floor mechanical and
electrical plans for the floor or floors of the Demised Premises on which the
Alterations are being made, revised by the Building architect and engineers,
showing the Alterations proposed by Tenant for Landlord's approval. If any such
Alterations are made without the prior written consent of Landlord, Landlord may
correct or remove the same, and Tenant shall be liable for any and all expenses
incurred by Landlord in the performance of such work. All Alterations shall be
at Tenant's sole expense, shall comply with all laws, rules, orders and
regulations of governmental authorities having jurisdiction thereof and shall be
made at such time and in such manner as Landlord determines will not
unreasonably interfere with the use of the Building by other Tenants and their
respective premises. All Alterations shall be made only by such contractors or
mechanics as are approved in writing by Landlord. Such approval shall not be
unreasonably withheld or delayed. Approval of contractors or mechanics by
Landlord shall be based upon the contractors or mechanics being properly
licensed, their financial posture, experience and past job performance. Tenant
shall pay prevailing wages to all contractors and mechanics.
All Alterations to the Demised Premises, whether made by Landlord or
Tenant, and whether at Landlord's or Tenant's expense, or the joint expense of
Landlord and Tenant, shall be and remain the property of Landlord, hereinafter
unless otherwise agreed to by Landlord and Tenant.
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Landlord, at the expiration of the Term or any renewal or extension
thereof, may elect to require Tenant to remove all or any part of the
Alterations made by the Tenant, subsequent to the Term Commencement Date, unless
Landlord agrees in writing not to require the removal of an Alteration at the
time Landlord consents to the Alteration. Removal of Tenant's Property and
Alteration shall be at Tenant's cost and expense and Tenant shall, at its cost
and expense, repair any damage to the Demised Premises or the Building caused by
such removal. In the event Landlord does not so elect, and Tenant does not
remove Tenant's Property, it shall become property of Landlord. In the event
Tenant fails to remove Tenant's property or the Alterations requested to be
removed by Landlord on or before the expiration of the Term or any extension or
renewal thereof, then and in such event, the Landlord may remove Tenant's
Property and Alteration from the Demised Premises at Tenant's expense and the
Tenant hereby agrees to reimburse the Landlord for the cost of such removal
together with any and all damages which the Landlord may suffer and sustain by
reason of the failure of Tenant to remove the same.
Tenant further acknowledges that any violation of the foregoing
requirement by Tenant will jeopardize Landlord's bond financing for the Building
project of which the leased premises is a part and could likely cause Landlord
to suffer and incur substantial monetary damage or injury to which Tenant would
be liable.
16. MAINTENANCE
(A) Demised Premises: Tenant shall keep the Demised Premises and the
fixtures and equipment therein in good order and condition, will suffer no waste
or injury thereto, and shall at the expiration or sooner termination of this
Lease, surrender and deliver up the Demised Premises to Landlord in the same
good order and broom clean condition as existed on the Term Commencement Date,
ordinary wear and tear and damage by fire, the elements and other casualty
excepted. If repairs are required due to the negligent acts of the Tenant, its
agents, employees or invitees, the Landlord (upon written notice from Tenant of
the need for same) will make the same forthwith. Tenant shall be required to
give Landlord immediate notice of the need for any repair which, if not promptly
repaired, will constitute an unsafe condition which might cause injury. The
Landlord shall, at reasonable times and on prior reasonable notice to Tenant, be
permitted to enter upon the demised premises to examine the condition thereof
and to make the repairs as are required by the provisions of this paragraph at
Tenant's expense.
(B) Common Areas: Landlord shall maintain and repair the common areas
and facilities of the Building at all times. For the purposes of this Lease, the
Term "Common Areas" shall mean all areas, facilities and improvements provided,
from time to
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time, in the Building or for the mutual convenience and use of tenants or other
occupants of the Building, their respective agents, employees, and invitees and
shall include, if provided, but shall not be limited to, the Lobbies and
hallways, access roads, driveways, retaining walls, sidewalks, walkways,
landscaped areas, and exterior lighting facilities.
(C) Landlord shall, as between Landlord and Tenant, at all times
during the Term of the Lease, have the sole and exclusive control, management,
and direction of the Common Areas, and may, at any time and from time to time
during the Term exclude and restrain any person from the use and occupancy
thereof, excepting however, Tenant and other tenants of the Landlord and bona
fide invitees who make use of said areas in accordance with the rules and
regulations established by Landlord from time to time with respect thereto. The
rights of the Tenant in and to the Common Areas shall at all times be subject to
the rights of others to use same in common with Tenant, and it shall be the duty
of Tenant to keep all areas free and clear of any obstructions created or
permitted by Tenant or resulting from Tenant 's operation. Landlord may at any
time and from time to time close all or any of the Common Areas to make repairs
or alterations with advance notice to Tenant, or to the extent as maybe
necessary it the opinion of Landlord, to prevent the dedication thereof or the
accrual of any rights to any person or to the public therein, to close
temporarily any or all portions of the said areas to discourage non-customer
parking, and to do and to perform such other acts in and to said areas as, in
the exercise of good business judgment, Landlord shall determine to be advisable
with a view to the improvement of the convenience and use thereof by tenants,
their employees, agents, and invitees.
17. COMPLIANCE WITH LAWS
Tenant agrees, on behalf of itself, its employees and agents, that it
shall comply at all times with any and all Federal, state and local laws,
statutes, regulations, ordinances and other requirements of any of the
constituted public authorities relating to its use and occupancy of the Demised
Premise. Tenant shall be responsible for obtaining and maintaining proper
occupancy permits.
18. MECHANIC'S LIENS
Tenant shall not create or permit to be created or to remain, and
shall discharge and have removed or obtain security in the form of legally
recordable bonds for any lien, encumbrance or charge levied on account of any
mechanic's laborer's or materialmen's lien upon the Demised Premises or the
Property. If
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any mechanic's laborer's or materialmen's lien shall at any time be filed
against the Demised Premises or the Property for work claimed to have been done
for or materials claimed to have been furnished to Tenant (except for work
contracted for by Landlord), Tenant, within ten business (10) days after notice
of the filing thereof, at its sole cost and expense will cause it to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to discharge any such lien,
Landlord may, at it's option, discharge the same and treat the cost thereof as
additional rent payable with the monthly rent next becoming due. Tenant will
indemnify, defend and hold harmless Landlord from and against any and all
expenses, liens, claims or damages to person or property which may or might
arise by reason of Tenant making any Alterations, additions or improvements to
the Demised Premises or the Property.
19. SIGNS: ADVERTISEMENTS
Without the prior written consent of Landlord which consent shall not
be unreasonably withheld and except for mutually agreed to designs and locations
of sign(s) which are planned to be standard building directory signage and suite
entry signage, No sign, advertisement or notice shall be inscribed, painted,
affixed or displayed on any part of the outside or the inside of the Building or
the Demised Premises, including, without limitation, the doors of offices, and
if any such sign, advertisement or notice is exhibited, Landlord shall have the
right to remove the same and Tenant shall be liable for any and all expenses
incurred by Landlord by said removal. Any such permitted sign, advertisement
and/or notice, shall be at the sole expense and cost of the Tenant. Landlord
shall have the right to prohibit any advertisement of Tenant which in its
opinion tends to impair the reputation of the Building or its desirability as a
high-quality office Building and, upon written notice from Landlord, Tenant
shall immediately refrain from and discontinue any such advertisement.
Landlord will provide Building standard signage to identify Tenant on
one entrance door to demised premises and on a Building directory in the
Building lobby.
20. WEIGHTS: SAFES
Landlord shall have the right to reasonably prescribe the weight and
position of safes and other heavy equipment or fixtures to be located upon the
Demised Premises. Any and all damage or injury to the Demised Premises or the
Building caused by moving the property of Tenant into, or out of the Demised
Premises, or due to the same being located on the Demised Premises, shall be
repaired by and at the sole cost of Tenant. No
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furniture, equipment or other bulky matter of any description will be received
into the Building or carried in the (cent)levators except in the manner and
during the times approved in advance by Landlord in the exercise of reasonable
discretion. All moving of furniture, equipment and other bulky material within
public areas of the Property shall be under the direct reasonable control and
supervision of Landlord who shall not be responsible for any damage to or charge
for moving the same. Tenant agrees promptly to remove from the sidewalks
adjacent to the Building any of the Tenant's furniture, equipment or other
material there delivered or positioned.
21. ENTRY FOR REPAIRS AND INSPECTIONS
Tenant will permit Landlord, or its agent, employees or contractors,
with reasonable notice to Tenant when possible, to enter the Demised premises,
without charge therefore to Landlord or without diminution of the Rent payable
by Tenant, to examine, inspect and protect the Demised Premises, and to make
such repairs as in the judgment of Landlord may be deemed necessary to maintain
or protect the Demised Premises or the Building, or to exhibit the same to
prospective Tenants during the last one hundred twenty (120) days of the Term.
Landlord shall use reasonable efforts to minimize interference to Tenant's
business when making repairs, but Landlord shall not be required to perform the
repairs at a time other than during normal working hours.
In the event of an emergency, Landlord may enter the Demised Premises
without notice and make whatever repairs are necessary to protect the Demised
Premises or Building.
22. PARKING AND COMMON AREAS
Landlord will provide Eleven (11) parking spaces to Tenant (Four (4)
of the Eleven (11) spaces are to be reserved in the covered parking area for the
Term of the Lease), at a location determined from time to time by Landlord, at
no cost to Tenant. Landlord shall be entitled to reasonably relocate or reduce,
on a temporary basis, the parking spaces at any time in order to construct
alterations or additions to the Building. Additional parking needs will be
considered upon request.
23. LIEN FOR RENT
In consideration of the mutual benefits arising hereunder, Tenant
hereby grants to Landlord a lien on all property of Tenant except for prior
liens which already exist now or hereafter placed in or on the Demised Premises
(except such
17
part of any property as may be exchanged, replaced or sold from time to time in
the ordinary course of business operation or trade) and such property shall be
and remain subject to such lien of Landlord for payment of all Rent and other
sums agreed to be paid by Tenant herein. Said lien shall be in addition to and
cumulative with any other rights or remedies of Landlord under this Lease by law
or at equity.
24. OTHER COVENANTS OF TENANT
A. Use - Under no circumstances shall Tenant permit the leased
premises to be used or occupied by (i) any state or Federal branch, agency or
entity, the source of whose lease payments or other payments for the lease or
occupancy of such space are derived from moneys raised by taxation; (ii) any
individual or entity for the purpose of engaging in non-commercial activity or
whose activities would contravene public policy.
Tenant understands that any violation of the restrictions hereinbefore
set forth shall adversely affect the exemption from Federal taxation of interest
paid on the bond issue used to finance the project of which the leased premises
is a part, which would result in a serious monetary loss and damages to Landlord
for which Tenant would be liable.
B. Care of Premises - Tenant shall not permit the demised premises to
be overloaded, damaged or defaced; not place a load upon the premises exceeding
65 pounds of live load per square foot of floor area; and not move any safe,
vault or other heavy equipment in, about or out of the premises, except in such
manner, and at such time as Landlord shall in each instance authorize. Tenant's
business machines and mechanical equipment which cause vibration or noise that
may be transmitted to the Building structure or to any other space in the
Building shall be so installed, maintained and used by Tenant as to eliminate
such vibration or noise; no nuisance will be permitted on or about the demised
premises which shall be contrary to any law, ordinance, regulation or
requirement of any public authority having jurisdiction; the Tenant will keep
the demised premises reasonably clean; the Tenant will not litter or place any
obstruction in any portion of the common facilities; the Tenant will not do, nor
suffer to be done, nor keep or suffer to be kept, anything in or upon the
demised premises or the Building which may prevent the obtaining of any
insurance (including fire, extended coverage and public liability insurance) on
the demised premises or the Building or on any property therein, or which may
make void any such insurance, or which may create any extra premiums for, or
increase the rate of any such insurance. If any actions of Tenant do create any
increase in premiums or additions
18
premiums, then the Tenant shall pay the increased cost of the same to the
Landlord upon demand.
C. Trash and Odors - Tenant shall keep all trash, rubbish, garbage and
other refuse in proper containers within the interior of the leased premises
until called for to be removed by Landlord's janitorial service, and not cause
or permit objectionable odors to emanate or be dispelled from said Demised
Premises.
D. Assignment or Sublease - Tenant shall not voluntarily,
involuntarily or by operation of law assign or encumber this lease, in whole or
in part, or sublet the whole or any part of the demised premises, or permit any
other persons to occupy same without the prior express written consent of the
Landlord which consent shall not be unreasonably withheld, references elsewhere
in this lease to assignees, subtenants or other persons notwithstanding. Any
assignment or subletting, even with the consent of Landlord, shall not relieve
Tenant from liability for payment of rent or other sums herein provided or from
the obligation to keep and be bound by the terms, conditions and covenants of
this lease. The acceptance of rent from any other person shall not be deemed to
be a waiver of any of the provisions of this lease or to be a consent to the
assignment of this lease or subletting of the demised premises. The referenced
assignment or sublease provision shall remain in effect should the Tenant renew
the Lease. Tenant shall have the right without Landlord's consent to sublet at
no profit, to any venture owned 50% or more by Tenant.
If Tenant is a corporation other than a corporation whose stock is
listed on a national stock exchange, then any transfer of this lease from Tenant
by merger, consolidation or liquidation, shall constitute an assignment for the
purpose of this lease. An assignment for the benefit of creditors or by
operation of law shall not be effective to transfer any rights to the assignee
without the prior express written consent of the Landlord having been obtained.
Notwithstanding any provision above to the contrary, before Tenant may
assign this lease or sublet said premises, Tenant must first offer to relinquish
its lease of said premises, and to surrender same, to the Landlord; and Tenant
agrees that if Landlord accepts said offer within ten (10) days of receipt
thereof, this lease shall terminate and become null and void upon a date
designated by Landlord, not less than thirty (30) nor more than sixty(60) days
after the date of Landlord's acceptance. Upon such acceptance and termination,
all account and interests of the parties shall be settled to the date of
termination. Any profits net of reasonable subleasing expenses shall be split
50/50 with
19
the Landlord.
E. Corporate Authority - Tenant represents and warrants that the
person executing this Lease is authorized by Startec, Inc. to execute and bind
the corporation to this Lease.
25. OTHER MUTUAL COVENANTS
In addition to the foregoing covenants and conditions with which the
parties hereto have agreed to comply, the Landlord and Tenant do hereby further
mutually agree that:
A. Waiver of Subrogation - Landlord and Tenant hereby waive all right
of recovery in causes of action which either party has or may have or which may
rise hereafter against the other, whether caused by negligence or otherwise, for
any damage to the premises or contents therein or to the Building or any part
thereof caused by any of the perils which are covered under policies of fire and
extended coverage, Building and contents and business interruption insurance or
for which either party may be reimbursed as a result of insurance coverage
affecting any loss suffered by it; and further provided that the foregoing
waivers do not invalidate any policy of insurance of the parties hereto, now or
hereafter issued, it being stipulated by the parties hereto that the waivers
shall not apply in any case in which the application thereof would result in the
invalidation of any such policy of insurance.
B. Liability for Damage - Except for Landlord's negligence, Landlord,
shall not be liable for any damage to any property of the Tenant or anyone
claiming through the Tenant done or occasioned by or from the electrical system,
the heating or air conditioning system, the sprinkler system or the plumbing and
sewer systems (including damage caused by the freezing or bursting of pipes),
in, upon or about the premises or the Building of which the premises is a part,
nor for damages occasioned by water, snow or ice being upon or coming through
the roof, walls, windows, doors or otherwise, nor for any damage arising from
acts of negligence of Co-Tenants or other occupants of the Building of which the
premises may be a part, or the acts of any owners or occupants of adjoining or
contiguous property.
C. Notices - Whenever any notice is required or permitted hereunder,
the same shall be given in writing, sent by registered or certified United
States mail, postage prepaid, return receipt requested, and shall be addressed
to the address as either party may hereafter and from time to time designate in
writing to the other. If either party's address shall be changed during the term
hereof and written notice of such change is given to the other party as
hereinbefore prescribed, any notice and the contents thereof, if properly mailed
as stated to the last known
20
address of the party whose address has been changed, shall be valid and binding
upon said party for all intents and purposes. All notices hereunder, if given as
herein directed, shall be deemed to be effective upon the date such notice is
postmarked. Tenant shall be required to notify Landlord of ownership changes.
D. Waiver - The waiver of any covenants or conditions or of the
performance of and compliance with same, or the acquiesced breach thereof, shall
not constitute a waiver of any subsequent non-performance and non-compliance or
of any subsequent breach of such covenants or conditions, nor will such waiver
justify or authorize the non-observance of any other covenant or condition
hereof.
E. Memorandum of Lease - In the event, either simultaneously with the
execution of this lease or at any time thereafter during the term hereof,
Landlord shall request that a Memorandum of this lease ("Memorandum of Lease")
be executed and recorded in the public records of Xxxxxxxxxx County, Tenant
hereby agrees to cooperate with Landlord and to execute said Memorandum of Lease
for such purposes. When prepared, such document shall set forth the names and
addresses of both Landlord and Tenant, a description of said leased premises and
said Building, the duration of the term of lease (including the exact
commencement and ending dates of each term) and a reference to any special
clause contained in this lease which might be of particular significance for
recording purposes. Such Memorandum of Lease shall not set forth the amount of
any rents or other sums or charges provided for under this lease. The parties
further agree that this lease instrument shall not at any time be recorded or
made public.
F. Time of Essence - Time is of the essence with respect to the
compliance with and performance of each of the covenants and agreements under
this lease.
G. Late Charges- In the event that payment of any rent or other sum of
money due under this lease shall become overdue for ten (10) calendar days
beyond the date on which said sums of money are due and payable, a late charge
of 1.5% of payment per month or portion thereof, accruing from the date the
payment was originally due. On the sums so overdue, shall become immediately due
and payable by Tenant to Landlord as and for liquidated damage for Tenant's
failure to make prompt payment of said sums, and the full amount of late charges
shall be payable by Tenant on demand. In the event of the non-payment for any
reason of any such late charges or any part thereof, Landlord, in addition to
all other rights and remedies which it may have, shall have all the rights and
remedies provided for herein and by
21
law as in the case of non-payment of rent. No failure by Landlord to insist upon
the strict performance by Tenant of Tenant's obligations hereunder to pay late
charges shall constitute a waiver by Landlord of its right to enforce the
provisions of this subparagraph G and shall not be construed in any way to
extend the notice periods for default as provided for in this lease. By way of
example only, the amount of a late charge due and payable on a monthly rental
payment of $1,500.00 which was paid after ten (10) days beyond the due date for
such rental payment would be computed as follows: $1,500.00 x .015 = $22.50
(late payment).
26. DEFAULTS; REMEDIES
In the event Tenant shall at any time a default in the payment of Rent
herein reserved, or of any other sum required to be paid by Tenant under this
lease when due and such failure or refusal shall continue for ten (10) days
following receipt of written notice from Landlord of such failure or refusal, or
in the performance of or compliance with any of the terms, covenants, conditions
or provisions of this lease and shall not cure such failure or refusal within
thirty (30) days after written notice thereof from Landlord to Tenant, or if
Tenant shall be adjudicated a bankrupt or shall make an assignment for the
benefit of creditors or shall file a xxxx in equity or otherwise initiate
proceedings for the appointment of a receiver of Tenant's assets, or shall file
any proceedings in bankruptcy or for reorganization or an arrangement under any
federal or state law, or if any proceedings in bankruptcy or for the appointment
of a receiver shall be instituted by any creditor of Tenant under any state or
federal law, or if Tenant is levied upon or sold by sheriff's or xxxxxxxx'x or
constable's sale or other legal process, or if Tenant attempts to remove its
property from the Demised Premises other than in the ordinary course of
business, the occurrence of any such event to constitute an event of default and
a breach under this Lease, and after having provided Tenant with ten days
written notice, then and in addition to any other rights or remedies Landlord
may have under this Lease and at law and in equity, Landlord shall have the
following rights:
A. To accelerate the whole or any part of the Rent for the entire
unexpired balance of the Term as well as all other charges, payments, costs and
expenses herein agreed to be paid by Tenant. Any Rent or other charges,
payments, costs and expenses if so accelerated shall be deemed due and payable
as if they were on that date payable in advance; and/or
B. To enter the Demised Premises without further demand or notice and
proceed to the sale of the goods, chattels and personal property there found, to
levy the Rent and/or charges herein payable as Rent, and Tenant shall pay all
costs
22
and officers' commissions, including watchmen's wages and sums chargeable to
Landlord, and in such case all costs, officers' commissions and other charges
shall immediately attach and become part of the claim of Landlord for Rent, and
any tender of Rent without said costs, commissions and charges made, after the
issuance of a warrant of distress, shall not be sufficient to satisfy the claim
of Landlord; and/or
C. To re-enter the Demised Premises and remove all persons and all or
any property therefrom, either by summary dispossess proceedings or by any
suitable action or proceeding at law, or by force or otherwise, without being
liable to indictment, prosecution or damages therefore, and repossess and enjoy
the Demised Premises, together with all additions, alterations and improvements.
Upon recovering possession of the Demised Premises by reason of or based upon or
arising out of a default on the part of Tenant, Landlord may, at Landlord's
option, either terminate this Lease or make such alterations and repairs as may
be necessary in order to relet the Demised Premises and rent the Demised
Premises or any part or parts thereof, either in Landlord's name or otherwise,
for a term or terms which may at Landlord's discretion seem best; upon each such
reletting all rents received by Landlord from such reletting shall be applied;
first, to the payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any reasonable costs and expenses
of such reletting, including reasonable brokerage fees and reasonable attorney's
fees and all reasonable costs of such alterations and repairs; third, to the
payment of Rent due and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of future rent as it may become due and
payable hereunder. If such rentals received from such reletting during any month
shall be less than that to be paid during that month to Landlord, such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of the Demised Premises or the making of alterations and/or
improvements thereto or the reletting thereof shall be construed as an election
on the part of Landlord to terminate this Lease unless written notice of such
intention be given to Tenant.
D. To terminate this Lease and the Term hereby created without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken, whereupon
Landlord shall be entitled to recover, in addition to any and all sums and
damages for violation of Tenant's default in an amount equal to the amount of
the Rent reserved for the balance of the Term, as well as all other charges,
payments, costs and expenses therein agreed to be paid by Tenant, all of which
amount shall be immediately due and payable from Tenant to Landlord.
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No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy herein or by law provided
but each shall be cumulative and in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity.
No waiver by Landlord of any breach by Tenant of any of Tenant's
obligations, agreements or covenants herein shall be a waiver of any subsequent
breach or of any obligation, agreement or covenant, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Landlord
represents that if tenant is making reasonable efforts to cure defaults in good
faith and stated deadlines expire, Landlord will grant reasonable leniency in
meeting deadlines, not to exceed thirty (30) days.
E. In consideration of the benefits accruing under this Lease, Tenant
hereby covenants and agrees that in the event of any actual or alleged failure,
breach, or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against the
interest of the Landlord in the Building;
(b) neither the Landlord nor any shareholder of Landlord shall be
personally liable with respect to any claim arising out of or related
to this Lease;
(c) no shareholder of the Landlord shall be sued or
named as a party in any suit or action;
(d) no service of process shall be made against any
shareholder of Landlord;
(e) any judgment granted against any shareholder of
Landlord may be vacated and set aside at any time as if
such judgment had never been granted;
(f) both Landlord and any shareholder may invoke and
enforce these covenants and agreements.
27. SUBORDINATION
This Lease shall be subject and subordinate to any mortgage and/or any
deed of trust which may now or hereafter be secured upon the Property of
Building, and to all renewals, modifications, consolidations, replacements and
extensions thereof. This clause shall be self-operative and no further
instrument of subordination shall be required by any mortgagee, but in
confirmation of such subordination, Tenant shall execute,
24
within five (5) days after request, any certificate that Landlord may reasonably
require acknowledging such subordination. Tenant hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such certificate within
said five (5) day period. Notwithstanding the foregoing, the party holding the
instrument to which this Lease shall be subordinate shall have the right to
recognize and preserve this Lease in the event of any foreclosure sale or
possessory action, and in such case this Lease shall continue in full force and
effect at the option of the party holding the superior lien and Tenant shall
attorn to such party and shall execute, acknowledge and deliver any instrument,
demanded by Landlord or such other party, that has for its purpose and effect
the confirmation of such attornment. Such superior lien holder or any purchaser
at a foreclosure or other judicial sale may, at or prior to the time of any such
sale or within sixty (60) days thereafter, notify Tenant to vacate and surrender
the Demised Premises within ninety (90) days of the date of such sale and in the
event such notice is given, this Lease shall terminate and expire one hundred
twenty (120) days after such sale.
This section is subject to any of the rights of the Tenant pursuant to
any non-disturbance agreement delivered and subject to section 25D.
28. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
If Tenant shall after the expiration of all applicable notice and cure
periods be in default in the performance of any of its obligations under this
Lease, Landlord may but shall not be obligated, in addition to any other rights
it may have in law or equity, cure on behalf of Tenant any default hereunder by
Tenant, and Tenant shall reimburse Landlord for any sums paid or costs incurred
by Landlord in curing such default, including but not limited to reasonable
attorney's fees incurred, and also including interest at the rate of Prime Plus
(as published in the Wall Street Journal) three percent (3%) per annum on all
sums advanced by Landlord as aforesaid, which sums and costs together with
interest thereon shall be deemed additional rent payable on demand.
29. ESTOPPEL STATEMENT
Tenant shall from time to time, within ten (10) business days after
request by Landlord, execute, acknowledge and deliver to Landlord a statement
certifying that this Lease is unmodified and in full force and effect (or that
the same is in full force and effect as modified, listing any instruments of
modification), the dates to which Rent and other charges have been paid, and
whether or not, Landlord is in default hereunder or whether Tenant has any
claims or demands against Landlord (and, if so, the default, claim, and/or
demand shall be
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specified) and such estoppel statement may be delivered by Landlord to any
prospective purchaser or ground lessor mortgagee of the Property of Building and
may be relied upon by such prospective purchaser, ground lessor or mortgagee.
30. HOLDING OVER
Should Tenant continue to occupy the Demised Premises after the
expiration of the Term and without Landlord's prior written consent, or any
renewal thereof, or after a forfeiture incurred, such tenancy shall (without
limitation on any of Landlord's right or remedies therefor) be a tenancy at
will,at a minimum daily rent equal to one-thirtieth of 150% of the rent payable
for the previous month of the Term, plus all additional rent payable hereunder.
31. MISCELLANEOUS
A. Landlord and Tenant each represent and warrant to the other that,
except for Barnes, Morris, Xxxxxx & Xxxxxx, Inc., and Karnpa & Xxxxx Company
neither of them has employed any broker in carrying on the negotiations relative
to this Lease. Landlord and Tenant shall each indemnify and hold harmless the
other from and against any claim or claims for brokerage or other commission
arising from or out of breach of the foregoing representation and warranty.
Landlord recognizes that the Aforementioned Broker is entitled to the payment of
a commission for services rendered in the negotiation and obtaining of this
Lease, and Landlord has agreed to pay such commissions pursuant to a separate
agreement.
B. The word "Tenant" as used in this Lease shall be construed to mean
Tenants in all cases where there is more than one Tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships, or individuals, men or women, shall in all cases be
assumed as though in each case fully expressed. Each provision hereof shall
extend to and shall, as the case may require, bind and inure to the benefit of
Tenant ant its heirs, legal representative, successors and assigns, provided
that without in any way limiting the right afforded to Tenant pursuant to
Section 24(D) of this lease. This Lease shall not inure to the benefit of any
assignee, heir, legal representative, transferee or successor of Tenant except
upon the express written consent or election of Landlord.
C. The term "Landlord" as used in this Lease shall mean the fee owner
of the entire Property or, if different, the party holding and exercising the
right, as against all other (except space Tenants of Building) to possession of
the entire Property. In the event of voluntary or involuntary transfer of such
ownership or right to a successor in interest of Landlord,
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Landlord shall be freed and relieved of all liability and obligation hereunder
(and, as to any unapplied portion of Tenant's security deposit, Landlord shall
be relieved of all liability therefor upon transfer of such portion to its
successor in interest) and Tenant shall look solely to such successor in
interest for the performance of the covenants and obligations of the Landlord
hereunder which shall thereafter accrue.
32. PRIOR AGREEMENTS
Neither party hereto has made any representation or promises except as
contained herein. No agreement hereinafter made shall be effective to change,
modify, discharge or effect an abandonment of this Lease, in whole or in part,
unless committed to a written agreement signed by both the Landlord and the
Tenant.
33. CAPTIONS
The captions of the Sections in this Lease are inserted and included
solely for convenience and shall not be considered or given any effect in
construing the provisions hereof.
34. BENEFIT AND BURDEN
The provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and each of their permitted successors and
assigns.
35. SEVERABILITY
If any term, covenant, or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant and condition of this Lease shall be valid and enforced to the
fullest extent permitted by law.
36. GOVERNING LAW
This Lease shall be governed by the laws of the State of Maryland.
37. NO PARTNERSHIP
Nothing in this Lease shalt be deemed or construed to create a
partnership or joint venture of or between Landlord and Tenant or to create any
other relationship between the parties hereto other than that of Landlord and
Tenant.
38. OPTIONS TO EXTEND TERM
Provided that Tenant is still in occupancy, and has not
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been in default of the Lease, Tenant shall have the option to renew this lease
for one (1) additional five (5) year term ("Renewal Term") at the end of the
fifth (5th) Lease Year with eight (8) months prior written notice at one hundred
percent (100%) of fair market value.
39. ELECTRONIC SECURITY
Landlord warrants that the Building contains an electronic security
system of which the Tenant will be granted access and that the Building will
maintain this or an equivalent or better security system throughout the term of
the lease and any renewal periods.
40. OTHER RIGHTS OF LANDLORD
(A) to decorate, remodel, alter or otherwise prepare the Demised
Premises for reoccupancy during the last ninety (90) days of the Term, if during
or prior to that time Tenant vacates the Demised Premises; and
(B) To show the Demised Premises to prospective tenants or brokers
during the last one hundred and eighty (180) days of the Term; to show the
Demised Premises to prospective purchasers at all reasonable dues provided that
prior notice is given to Tenant in each case and that Tenant's use and occupancy
of the Demised Premises shalt not be materially inconvenienced by any action of
Landlord; and to place and maintain FOR RENT signage on the Demised Premises
during the last one hundred eighty (180) days of the Lease Term.
41. RIGHT OF FIRST REFUSAL
Subject to the terms and conditions herein set forth, Tenant shalt
have a right of first refusal to expand into those premises (the "Expansion
Premises") adjacent to Tenant's current Premises at the escalated rent Tenant is
paying for its original lease. Landlord and Tenant shall attempt to negotiate in
good faith the other items contained in an amendment and subject to the terms
below.
Provided Tenant is not in default of its lease obligations, Landlord
shall, by written notice (the "Offer Notice"), offer to lease the Expansion
Premises to Tenant. In order to effectively exercise the foregoing right of
first refusal, Tenant must notify Landlord in writing, within ten (10) days of
Tenant's receipt of the Offer Notice, of Tenant's unequivocal acceptance of
Landlord's offer. In the event that Tenant (i) rejects Landlord's offer, or (ii)
fails to respond in writing to the Offer Notice within such ten (10) day period,
then the above-described right of first refusal shall be null and void
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and of no further force or effect, and Landlord shall at all times thereafter be
free to offer and lease the space to any party whatsoever, or to hold the space
vacant, at Landlord's sole discretion; Landlord shall not be required to offer
the Expansion Premises to Tenant more than once during the Term of Tenant's
lease. Upon Tenant's effective exercise of the foregoing right of first refusal,
Landlord shall prepare and Landlord and Tenant shall execute an amendment to
Tenant's lease reflecting the addition of the Expansion Premises to the Premises
theretofore held by Tenant under the lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease the
day and year first above written.
Witness: LANDLORD:
Xxxxxxx Place Limited
Partnership
By: By:
----------------------------- -----------------------------
[SEAL]
Witness: TENANT:
Startec, Inc.
By: By:
----------------------------- -----------------------------
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February 23, 1996
Xx. Xxxxxx Xxxxxxx, Esq.
Startec, Inc.
00000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxxx:
In accordance with our discussion, the Xxxxxxx Place will lease to Startec,
Inc. an adjoining (Ex. A) space. The new space consists of approximately 575
rentable square feet on the third (3rd) floor adjoining your current office.
The term of your new space shall commence 1 March 1996 and run concurrent
with the existing lease. All terms and conditions of your existing lease will
apply. You have agreed to accept the new space without improvements. there shall
be a five (5) month rent abatement with payment starting 1 August 1996.
In addition and separate from above, one additional parking space will be
made available at the outside parking perimeter next to your current space.
IN AGREEMENT WITH:
Landlord: Tenant:
Xxxxxxx Place Limited Partnership Startec, Inc.
By: By:
----------------------------- -----------------------------
Xxxxxx Xxxxxxx, Esq.
General Counsel
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