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EXHIBIT 10.16
LEASE
THIS LEASE ("Lease") is made this 1st day of March, 1999 by and between
BEACON PROJECTS, INC., a Maryland corporation (the "Landlord") and UNITHER
TELEMEDICINE SERVICES CORP., a Delaware corporation (the "Tenant").
WITNESSETH:
1. Premises and Rent. That Landlord for and in consideration of Ten
Dollars ($10.00) received in hand, the covenants and agreements hereinafter set
forth and the rent hereinafter specifically reserved, has leased, and does
hereby lease, unto said Tenant:
-- approximately 2,000 rentable sq. ft. of office space located in the
basement;
-- approximately 1,000 rentable sq. ft. of office space on the second
floor; and
-- shared access to the second floor conference room,
together referred to as the "Premises", in that certain building located at
0000-0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. (the "Building"), together with the
right to use the front entrance to the Building for a term commencing on March
1, 1999 for Tenant's occupancy of the Premises (the "Commencement Date") and
ending on February 28, 2001, both dates inclusive, except as extended in
accordance with the terms hereof, the said Tenant yielding and paying as rent
for said term an amount equal to Two Thousand Five Hundred Dollars ($2,500.00)
per month, without deduction or demand, payable in advance on the first day of
each month during said term, at the office of Landlord, or at such other place
as Landlord may hereafter designate in writing. Rent for the first month of
the term shall be due and payable on or before the date Tenant executes this
Lease. Rent shall be prorated for any partial month during the term at this
Lease based on a 365-day year. Rent shall be increased ten percent (10%) on
each anniversary of the Commencement Date. Rent checks are to be payable to
Landlord or such other person, firm or corporation as Landlord may designate in
writing. Tenant does hereby take and hold the Premises at the rent hereinabove
specifically reserved and payable as aforesaid, and upon and subject to the
terms and conditions herein contained. For each day that the commencement of
the term is delayed beyond March 1, 1999, the term shall be extended by one (1)
day beyond February 28, 2001.
2. Use of Premises. Tenant may use and occupy the Premises for general
office and administrative purposes or for such other purposes as may be
permitted by law including, specifically, a 24-hour telemedicine facility.
3. Parking. Tenant shall have, and is hereby granted, the right to use up
to four (4) parking spaces located in the rear of the Building during the term
for an additional charge of Two Hundred Dollars ($200.00) per month, per
parking space. It is understood and agreed that there are eight (8) parking
spaces currently available for use in the rear of the Building.
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4. Use of Common Elements of the Building. For the rent stipulated to be
paid hereunder, Tenant shall have the non-exclusive right to use all entrances,
lobbies and sidewalks not specifically demised to Landlord or another tenant.
5. Utilities, Maintenance and Taxes. Landlord shall furnish all utilities
to the Building and the cleaning services set forth in Paragraph 22 of this
Lease, and Tenant shall pay Landlord within thirty (30) days of Tenant's
receipt of an invoice therefor its proportionate share (agreed to be 20%) of
the cost thereof, unless separately metered. Landlord shall pay all real
property taxes on the land, Building, and Premises during the term. Landlord
shall be responsible for all repairs and maintenance to the Building's systems
(including those serving the Premises), to the roof and to other structural
portions of the Building, to the common areas and to the exterior of the
Building. Tenant shall keep the Premises (except for Building systems and
structural components of the Building located therein) in good order and
condition and will, at the expiration or other termination of the term hereof,
surrender and deliver up the same in like good order and condition as the same
now is or shall be at the commencement of the term hereof, ordinary wear and
tear, repairs and maintenance which are Landlord's responsibility hereunder and
damage by the elements, fire, and other unavoidable casualty excepted.
6. Subletting and Assignment. Tenant shall not sublet the Premises or any
part thereof or transfer possession or occupancy thereof to any person, firm or
corporation, or transfer or assign this Lease or any rights hereunder.
Notwithstanding the foregoing, Tenant shall have the right to assign this Lease
or sublet all or any portion of the Premises or permit the same to be used by
its parent company, subsidiaries, or affiliates upon prior written notice to
Landlord.
7. Fire Insurance. Tenant shall not do or permit anything to be done in
or about the Premises or bring or keep anything therein which shall in any way
increase the rate of fire or other insurance on the Premises or conflict with
the fire laws or regulations, or with any insurance policy upon said premises
or with any statutes, rules or regulations enacted or established by the
appropriate governmental authority.
8. Alterations. Tenant shall not make any alterations, installments,
changes, replacements, additions, or improvements (structural or otherwise) in
or to the Premises or any part thereof, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed, provided the same do not affect the Building's exterior or structure
or adversely affect the mechanical, plumbing or electrical systems of the
Building. Notwithstanding the foregoing, Tenant shall be permitted to make
such alterations necessary to ensure an uninterruptible power supply to its
telemedicine operations, at Tenant's sole cost.
9. Access. Tenant further agrees that it shall permit Landlord, its agent
or employees, to enter upon the Premises at all reasonable times after
reasonable notice (except in the event of an emergency when no advance notice
shall be required) to inspect the same, to show the same to prospective
purchasers and mortgagees and, during the last
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ninety (90) days of the term, to prospective tenants. However, any entry shall
not unreasonably disturb or interfere with Tenant's business operations.
10. Signage. Tenant shall not place any sign in or on any part of the
Premises visible from the exterior of the Premises or elsewhere in or on the
Building without Landlord's prior written approval. Notwithstanding the
foregoing, Tenant shall have the right to install a brass plaque on the
Building identifying itself provided that Landlord's approval of the size,
color and style of such signage is first obtained, which approval Landlord
agrees not to unreasonably withhold, condition or delay.
11. Personal Property. All personal property of Tenant upon the Premises
shall be at the sole risk of Tenant. Tenant hereby expressly releases Landlord
from any liability incurred or claimed by reason of damage to Tenant's property
unless such damage is caused by Landlord's negligence.
12. Default and Remedies. It is agreed that if Tenant shall fail to pay
the rent, or any other charges due and owing hereunder, at the time the same
shall become due and payable, although no demand shall have been made for the
same; or if Tenant shall violate or fail or neglect to keep and perform any of
the covenants, conditions and agreements herein contained on the part of Tenant
to be kept and performed and such violation, failure or neglect is not cured
within sixty (60) days after receipt by Tenant of Landlord's notice of default
in each and every such event from thenceforth, and at all times thereafter, at
the option of Landlord, Tenant's right of possession shall thereupon cease and
determine, and Landlord shall be entitled to possession of the Premises and to
re-enter the same without demand of rent or demand of possession and may
forthwith proceed to recover possession of the Premises by process of law or
otherwise, any notice to quit, or notice of intention to re-enter the same
being hereby expressly waived by Tenant. And, in the event of such reentry by
process of law or otherwise, Tenant nevertheless agrees to remain answerable
for any and all damage, deficiency or loss of rent which Landlord may sustain
by such re-entry, including reasonable attorneys' fees and court costs; and in
such case, Landlord reserves full power, which is hereby acceded to by Tenant,
to relet the Premises for the benefit of Tenant, in liquidation and discharge,
in whole or in part, as the case may be, of the liability of Tenant under the
terms and provisions of this Lease. Landlord may exercise its rights hereunder
by one or more actions against Tenant.
13. Subordination. This Lease is subject to all ground or underlying
leases and to all mortgages and/or deeds at trust which may now or hereafter
affect the Premises, 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 or
trustee. In confirmation of such subordination, Tenant shall execute promptly
any certificate that Landlord may request. Provided, however, that
notwithstanding the foregoing, the party secured by any such deed of trust
shall have the right to recognize this Lease and, in the event of any
foreclosure sale under such deed of trust, this Lease shall continue in full
force and effect at the option of the party secured by such deed of trust or
the purchaser under any such foreclosure sale; and
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Tenant covenants and agrees that it shall, at the written request of the party
secured by any such deed of trust, execute, acknowledge and deliver any
instrument that has for its purpose and effect the subordination of said deed
of trust to the lien of this Lease. At the option of any landlord under any
ground or underlying lease to which this Lease is now or may hereafter become
subject or subordinate, Tenant agrees that neither cancellation nor termination
of such ground or underlying lease shall by operation of law or otherwise,
result in cancellation or termination of this Lease or the obligations of
Tenant hereunder, and Tenant covenants and agrees to attorn to such landlord or
to any successor to landlord's interest in such ground or underlying lease, and
in that event, this Lease shall continue as a direct lease between the Tenant
herein and such landlord or its successor; and, in any case, such landlord or
successor under such ground or underlying lease shall not be bound by any
prepayment on the part of Tenant of any rent for more than one month in
advance, so that rent shall be payable under this Lease in accordance with its
terms, from the date of the termination of the ground or underlying lease, as
if such prepayment had not been made; and provided, further, such landlord or
successor under such ground or underlying lease shall not be bound by this
Lease or any amendment or modification of this Lease unless, prior to the
termination of such ground or underlying lease, a copy of this Lease or
amendment or modification thereof, as the case may be, shall have been
delivered to such landlord or successor. Notwithstanding the foregoing,
Tenant's subordination and attornment as set forth in this Paragraph 13 with
respect to Landlord's current mortgagee shall be conditioned upon Landlord
obtaining for Tenant a subordination, nondisturbance and attornment agreement
from such mortgagee on the mortgagee's standard form, subject to any changes
thereto as Tenant may request that are reasonably necessary so that such
agreement is in a customary commercially reasonable form.
14. Casualty and Condemnation. In the event that the Premises or the
Building are damaged by fire or other cause and in Landlord's reasonable
estimation such damage can be materially restored within ninety (90) days,
Landlord shall forthwith repair the same and this Lease shall remain in full
force and effect, except that Tenant shall be entitled to a proportionate
abatement in rent from the date of such damage. Such abatement of rent shall be
made pro rata in accordance with the extent to which the damage and the making
of such repairs shall interfere with the use and occupancy by Tenant of the
Premises from time to time. Within forty-five (45) days from the date of such
damage, Landlord shall notify Tenant, in writing, of Landlord's reasonable
estimation of the length of time within which material restoration can be made,
and Landlord's determination shall be binding on Tenant. For purposes of this
Lease, the Building or Premises shall be deemed "materially restored" if they
are restored to substantially the same condition as existed immediately before
such damage. If such repairs cannot, in Landlord's reasonable estimation, be
made within ninety (90) days, Landlord and Tenant shall each have the option of
giving the other, at any time within sixty (60) days after such damage, notice
terminating this Lease as of the date of such damage. In the event of the
giving of such notice, this Lease shall expire and all interest of the Tenant
in the Premises shall terminate as of the date of such damage as if such date
had been originally fixed in this Lease for the expiration of the Lease term.
In the event that neither Landlord nor Tenant exercises its option to terminate
this Lease, then
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Landlord shall repair or restore such damage, this Lease continuing in full
force and effect, and the rent hereunder shall be proportionately abated as
provided above. In the event that Landlord should fail to complete such
repairs and material restoration within sixty (60) days after the date
estimated by Landlord therefor as extended below, Tenant may at its option and
as its sole remedy terminate this Lease by delivering written notice to
Landlord, within fifteen (15) days after the expiration of said period of time,
whereupon the Lease shall end on the date of such notice or such later date
fixed in such notice as if the date of such notice was the date originally
fixed in this Lease for the expiration of the Lease term; provided, however,
that if construction is delayed because of changes, deletions or additions in
construction requested by Tenant, strikes, lockouts, casualties, Acts of God,
war, material or labor shortages, government regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed.
Tenant agrees that if the Premises, or any material part thereof, shall be
taken or condemned for public or quasi public use or purpose 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; and all right of Tenant to damages
therefor, if any, are hereby assigned by Tenant to Landlord. And upon such
condemnation or taking, at Landlord's option, the term of this Lease shall
cease and terminate from the date of such governmental taking or condemnation,
and Tenant shall have no claim against Landlord for the value of any unexpired
term of this Lease. Notwithstanding the foregoing, Tenant may apply to the
condemning authority for a separate award for its trade fixtures and moving
expenses.
15. Successors. It is agreed that except as provided in Paragraph 6 of
this Lease, all rights, remedies and liabilities herein given to or imposed
upon either of the parties hereto, shall extend to their respective heirs,
executors, administrators, successors, and assigns.
16. Tenant Holdover. If Tenant shall, with the knowledge and prior
written consent of Landlord, continue to remain in the Premises after the
expiration of the term of this Lease, then and in that event, Tenant shall, by
virtue of this agreement become a tenant by the month at the monthly
installment of rent agreed by Tenant to be paid as aforesaid, commencing said
monthly tenancy with the first day next after the end of the term above
demised; and said Tenant shall give to Landlord at least thirty (30) days'
written notice of any intention to quit the Premises, and Tenant shall be
entitled to thirty (30) days' written notice to quit the Premises, except in
the event of nonpayment of rent or of the breach of any other covenant by
Tenant, in which event Tenant shall not be entitled to any notice to quit, the
usual thirty (30) days' notice to quit being hereby expressly waived. If
Tenant shall continue to remain in the Premises after the expiration of the
term of this Lease without Landlord's prior written consent, Tenant shall pay
Landlord one hundred and twenty-five percent (125%) of the amount of rent then
in effect for each month Tenant remains in all or any part of the Premises, and
Tenant shall
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also pay Landlord for any damages, loss, cost and expense Landlord incurs by
reason of such holding over by Tenant.
17. Limitation of Liability. Redress of any claim against Landlord under
this Lease shall be limited to and enforceable only against and to the extent
of Landlord's interest in the Building. Neither the obligations of Landlord
nor Tenant under this Lease shall be binding upon nor shall any resort be had
to the private properties of any directors, officers, partners, stockholders,
employees, or agents of Landlord or Tenant, as the case may be.
18. Entire Agreement. This Lease contains the entire and final agreement
of and between the parties hereto, and they shall not be bound by any
statements, conditions, representations, inducements or warranties, oral or
written, not herein contained, unless there is written amendment hereto signed
by all the parties hereto.
19. Liability and Liability Insurance. Landlord assumes no liability or
responsibility whatsoever with respect to the conduct and operation of the
business to be conducted on the Premises. Landlord shall not be liable for any
accident to or injury to any person or persons or property on or about the
Premises which are caused by the conduct and operation of said business or by
virtue of equipment or property of Tenant on the Premises. Tenant agrees to
protect, indemnify and save harmless Landlord, of and from any and all expense,
loss, damage and liability incurred pursuant to any claims for injury to
persons or to personal property by reason of any accident, or happening in,
upon, or about the Premises, and Tenant agrees to carry public liability and
property damage insurance with limits of at least $l,000,000.00 bodily injury
per person, $2,000,000.00 bodily injury per accident, and $500,000.00 property
damage in the name of Landlord and Tenant, and to furnish Landlord, prior to
the Commencement Date, with a certificate, or copy of the policy, showing such
insurance to be in force.
20. Compliance with Law. Landlord shall be responsible for all changes or
improvements that are necessary to the Building (including the Premises) for
the same to comply with all legal requirements of any governmental authority
having jurisdiction over the Building not relating to Tenant's specific use of
the Premises or the business conducted therein. Tenant shall comply with all
legal requirements of any governmental authority having jurisdiction over the
Premises relating to Tenant's specific use of the Premises or the business
conducted therein. In the event that Tenant is unable to use the Premises for
the conduct of its business because of a change in the zoning classification
for the Building or a revocation of the certificate of occupancy, Tenant shall
have the right to terminate this Lease upon five (5) days' prior written notice
to Landlord.
21. Condition of Premises. The Premises shall be delivered to Tenant in
the condition in which it currently exists.
22. Clean Premises. Landlord at its sole cost and expense shall keep the
sidewalks in front of the Premises as well as the Building free from
obstructions of any and all nature, shall promptly remove all snow and ice from
said sidewalks, shall provide
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suitable receptacles for trash and refuse, and shall promptly remove or cause
to be removed from the Building all accumulations of snow, trash and refuse.
In the event Landlord fails to perform any of said covenants contained in this
paragraph, then and in that event, Tenant, at its option, may cause the work
provided for herein to be performed at the cost and expense of Landlord, who
agrees to reimburse Tenant promptly for any casts so incurred.
23. Waiver. It is further provided that if, under the provisions hereof,
a seven (7) days' summons or other applicable summary process shall be served,
and a compromise or settlement thereof shall be made, it shall not constitute a
waiver of any covenant herein contained; and that no waiver of any breach of
any covenant, condition or agreement herein contained shall operate as a waiver
of the covenant, condition or agreement itself, or of any subsequent breach
thereof. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver shall be in writing signed by Landlord. No payment
by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy provided for in this Lease.
24. Attorneys' Fees. In the event of the employment of any attorney by
Landlord or Tenant because of the violation by the other party of any term or
provision of this Lease, including non-payment of rent as due, the defaulting
party shall pay and hereby agrees to pay reasonable attorneys' fees and all
other costs incurred by the non-defaulting party.
25. No Partnership. Nothing contained in this Lease shall 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.
26. Paragraph Headings. Paragraph headings are for purpose of convenience
only and are not to be considered a part of this Lease.
27. Pronouns. Feminine or neuter pronouns shall be substituted for those
of the masculine form, and the plural shall be substituted for the singular
number, in any place or places herein in which the context may require such
substitution or substitutions. Landlord herein for convenience has been
referred to in neuter form.
28. Notices. All notices required or desired to be given hereunder by
either party to the other shall be personally delivered, sent by an established
overnight courier service for next business day delivery or given by certified
or registered mail and shall be deemed effective upon receipt or refusal to
accept receipt. Notices to the respective parties shall be addressed as
follows:
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If to Landlord: c/o Beacon Projects
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx Xxxxxxxxx
If to Tenant: Unither Telemedicine Services Corp.
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxxxx Xxxxxxx
Any party may, by like written notice, designate a new address to which
such notices shall be directed.
29. Quiet Enjoyment. Landlord represents and warrants that it has full
right and authority to enter into this Lease and that Tenant, while paying the
rental and performing its other covenants and agreements contained in this
Lease, shall peaceably and quietly have, hold and enjoy the Premises for the
term without hindrance or molestation from or through Landlord subject to the
terms and provisions of this Lease.
30. Waiver of Jury Trial. The parties hereby waive trial by jury in any
action, proceeding or counterclaim arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant or Tenant's use and
occupancy of the Premises.
31. Applicable Law. This Lease and the rights and obligations of the
parties hereunder shall be construed in accordance with the laws of the
District of Columbia.
32. Broker's Commission. Each of the parties represents and warrants that
it has not dealt with any broker or finder in connection with this Lease and
agrees to indemnify the other against, and hold it harmless from, all liability
arising from claims by any other broker or finder for brokerage commissions or
finder's fees in connection with this Lease, including, without limitation, the
cost of attorneys' fees in connection therewith.
33. Option to Extend. Tenant shall have the right to renew this Lease for
two consecutive one-year terms by giving Landlord notice to such effect at
least sixty (60) days prior to the expiration of the initial term or first
renewal term, as applicable, or at any time prior to receipt of written notice
from Landlord that it intends to sell the Building after February 2001 or has
entered into a lease with another party. Upon giving of such notice by
Tenant, this Lease shall be automatically extended for the first renewal term
or second renewal term, as applicable, upon the same terms, covenants and
conditions of this Lease, except that the rent shall be increased on each
anniversary of the Commencement Date as set forth in Paragraph 1 of this Lease.
IN TESTIMONY WHEREOF, the parties have hereunto signed their names and affixed
their seals, on the day and year first hereinabove written.
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ATTEST/WITNESS: LANDLORD:
BEACON PROJECTS, INC.
__________________________ By: /s/ X. Xxxxxxxxx [SEAL]
Its: President
ATTEST/WITNESS TENANT:
UNITHER TELEMEDICINE SERVICES CORP
/s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx [seal]
Its: President and CEO
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