Sublease Agreement
THIS
SUBLEASE AGREEMENT (“Sublease”) is made and entered into this 28th
day of
May,
2004, by and between Thorium Power, (hereinafter the “Sublessor”) and XXXXXX
& MUSS, P.L.L.C. (hereinafter the “Sublessee”).
WHEREAS,
by a certain Lease agreement dated August 14, 2001 (hereinafter referred to
as
the
“Lease” or “underlying Lease”),
the Sublessor has leased from Washington Real Estate Investment Trust (“WRIT”),
also herein called the Principal Landlord, approximately 2,093 rentable square
feet of space (hereinafter referred to as the “Premises”) on the 2nd
floor,
now known as Suite 202, of the building (hereinafter referred to as the
“Building”) located at 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X.00000.
WHEREAS,
a copy of the signed Lease has been given to the Sublessee, and a drawing
showing
the space leased by the Sublessor, and both are attached as Exhibit A;
and
WHEREAS,
this Sublessee desires to sublease from this Sublessor the aforesaid space;
and
WHEREAS,
the parties hereto desire to provide for the rental and further terms and
conditions
as to that space in this Sublease.
NOW,
THEREFORE, for and in consideration of mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1.
Underlying
Lease.
Within
one (1) business day of the signing of this Sublease by both parties,
the Sublessor, at its expense, will submit this Sublease in accordance with
the
underlying
Lease for the approval of the Principal Landlord; this Sublease Agreement
shall
not
become effective without the written approval of the Principal Landlord. If
the
Sublessor has not given the Sublessee written notice, by June 8, 2004, stating
that the Principal
Landlord has approved this Sublease agreement, including but not limited to
the
approval
of Sublessee’s signage requirements as herein stated, and attaching written
approval
signed by the Principal Landlord, then the Sublessee may declare this Sublease
Agreement
null and void. The Sublessee requires that it have signage on the
Building
Directory, including its entity name and up to 5 additional lines of signage,
and the Suite No.,
which is 202; that the Suite No. 202, and the Sublessee’s entity name be on the
door of
the
Suite; that Sublessee’s sign on its current Suite 300 be moved to 202; that the
Principal
Landlord agrees to the above signage requirements; and that Thorium Power,
as of
the commencement date of this Sublease no longer be listed on the Building
Directory as
in
Suite 202, or on the 202 Suite door. Principal Landlord also agrees to retain
the existing
signage or similar signage on the 2nd
floor
directing visitors back to 202. The Sublessor
and the Principal Landlord also agree to provide the Sublessee with 24
hour/seven
day a week access to the Building and the Sublease Premises and that five (5)
access
cards for security card readers will be provided to the Sublessee upon
commencement
of this Sublease.
May
28,
2004
page
2 of
8
2.
Subleasing
of Space.
This
Sublessor hereby agrees to sublease to the Sublessee, and Sublessee
hereby agrees to sublease from this Sublessor, the “Sublease Premises,” which
shall
be
the entire space shown on the attached drawing at Exhibit A, which is
approximately
2,093 rentable square feet, in the condition it was in on April 22, 2004
(hereinafter
referred to as the “Sublease Premises”) for rent, and in accordance with the
agreements,
and terms and conditions of this Sublease.
3.
Term.
The
“Term” of this Sublease will be from June 29, 2004 and shall continue
through
December 31, 2006. Rent shall commence on July 1, 2004 and continue through
December
31, 2006, the expiration date of the underlying Lease. The Sublessor
understands
time is of the essence and that the Sublessee must vacate its current space
on
or
before
June 30, 2004 or risk incurring very substantial costs pursuant to its current
lease
in
the Building and the Sublessor agrees that the Sublessee will be given
possession of
the
Sublease Premises on or before 6:00 A.M. June 29, 2004. At which time, or
before,
the Sublessor shall give the Sublessee keys to the Suite entrance door and
keys
to all interior doors and the Principal Landlord will provide the access cards.
The Sublessor shall
be
liable for any costs due and/or incurred by the Sublessee because of the
Sublessor’s
failure to give such possession and commence the Term, including any legal
costs,
and the Sublessee in its sole discretion may declare this Sublease null and
void
if such
possession and commencement of the Term is not given by 6:00 A.M. June 29,
2004.
If
late possession and commencement of the Term is given by the Sublessor, and
the
Sublessee accepts late possession and commencement of the Term, then the Rent
shall
be
adjusted on a pro rata basis, and the Sublessee may offset from Rent due
pursuant
to this Sublease costs due and/or incurred by the Sublessee because of the
Sublessor’s
failure to give possession and commence the Sublease on or before 6:00
A.M.
June
29, 2004 as stated above. Upon signing of the Sublease, the Sublessor shall
provide
the Sublessee copies of the drawings and specifications to which the space
was
built
out
including the working construction drawings and electrical wiring and phone/data
wiring, and in particular including the carpet specifications, and the names
and
phone
numbers of the architect, contractors, and in particular the phone service
company
used by the Sublessor. The Sublessor agrees that the Sublessee may use and
alter
any
phone/data or similar lines/wires currently in the space.
4.
Condition
of Premises.
Upon
commencement of the Term, Sublessor shall deliver and
Sublessee shall accept possession of the Sublease Premises in their “as shown”
condition on April 22, 2004, excluding
any
furniture, equipment or other nonfixed movable items owned by the Sublessor,
except that:
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May
28,
2004
page
3 of
8
| 1) |
all
kitchen appliances shall remain in
place
|
| 2) |
the
Sublessor shall leave and convey to the Sublessee free of charge
the
following two
(2) desks and two (2) chairs: the desk and chair located in office
4; and
the desk and
chair located in office 3.
|
| 3) |
the
Sublessor shall be permitted by the Sublessee through July 1, 2004
only to
leave in
the Sublease Premises the existing metal file cabinets and their
contents,
which contents
may be left in boxes, as long as the cabinets and boxes are placed
in the
open area
of the Sublease Premises, in an area agreeable to the Sublessee so
as not
to obstruct
its move-in and the location of its furnishings and equipment, but
only
through
July 1, 2004, at which time all of these items shall be removed by
the
Subleasor
at its expense.
|
5.
Rent.
The rent
under this Sublease for the Term shall consist of a fixed rent in the
amount
set forth in Paragraph 6 hereof (sometimes hereinafter call the “Rent”). The
Sublessee
covenants and agrees to pay this Rent to WRIT, the Principal Landlord, in
lawful
money of the United States, at the times and in the manner hereinafter
specified. The
Rent
includes all utilities, including electric, HVAC, and plumbing, and building
services,
including cleaning, and taxes. The Sublessor agrees to timely meet its
obligations
to WRIT, the Principal Landlord, including the timely payment of any rent or
other
moneys owed to the Principal Landlord under the underlying Lease in addition
to
the amount being paid by the Sublessee. The Sublessor agrees that if WRIT
advises the Sublessee
that the Sublessor is not current with its payments to WRIT, or otherwise is
not
in
compliance with its underlying Lease obligations, that the Sublessee may in
its
sole discretion
make any such payments directly to WRIT, or may terminate this Lease, and
such
action shall not relieve the Sublessor of its obligations to the Sublessee.
If
utilities and/or services are interrupted for more than thirty (30) consecutive
business days, Rent will
xxxxx (Rent, however, will xxxxx sooner for the Sublessee, if rent abates sooner
for the
Sublessor under its underlying Lease), and if such condition exists, without
being cured,
for a total of forty-five (45) calendar days, the Sublessee may terminate this
Sublease,
and if so terminated no Rent shall be due from the start of the interruption
and
going
forward. Similarly, if all or part of the Sublease Premises is damaged by fire
or other
casualty or is untenantable and is not repaired by the Principal Landlord or
Sublessor
within ten (10) business days, Rent will xxxxx, and if such condition exists
without
being cured, for a total of forty-five (45) calendar days, the Sublessee may
terminate
this Sublease, and if so terminated no Rent shall be due from the date of the
fire or
other
casualty or untenantability. (Sublessor shall be required to pay Rent only
for
the portion
of the Sublease Premises that is usable while repair is made.)
6.
Rent.
The Rent
shall be at the rate of Sixty-Nine Thousand Five Hundred Sixty-Five Dollars
and
Three Cents ($69,565.03) per annum, $34,782.52 for the first six (6) month
period
of
the Term, payable in equal monthly installments of Five Thousand Seven
Hundred
Ninety-Seven Dollars and Eight Cents ($5,797.08) per month, payable on
the
first
day of each month, except that the first such monthly installment shall be
due
and payable on the date of possession June 29, 2004 and shall be paid by
cashier’s check. For the next twelve months of the Term, January 1, 2005 -
December 31, 2005, the Rent shall be at the rate of Seventy-One Thousand Three
Hundred Four Dollars and Sixteen Cents ($71,304.16) per annum, Five Thousand
Nine Hundred Forty-Two Dollars and One Cent ($5,942.01)
per month, payable in equal monthly installments, on the first day of each
month,
except that the Sublessor shall provide the Sublessee with one free month of
rent, which
month shall be November 2005, and for that month zero dollars ($0.00) shall
be
due
from
the Sublessee, and the Sublessor shall pay the Landlord directly all rent due
for that
month; and for the following twelve months of the Term, January 1, 2006
-December
31, 2006, the Rent shall be at the rate of Seventy-Three Thousand Eighty-Six
Dollars
and Seventy-Six Cents ($73,086.76) per annum, Six Thousand Ninety Dollars
and
Fifty-Six Cents ($6,090.56) per month, payable in equal monthly installments,
on
the first
day
of each month. The above shall be the total fixed rent; no additional amount
shall
be
due by the Sublessee. Such Rent shall be paid by the Sublessee directly to
WRIT,
the
Principal Landlord.
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May
28,
2004
page
4 of
8
7. Alterations.
Without
further approval, the Sublessee shall have the right at its expense in the
Sublease Premises to install phone, data, fax, and other lines and electric
outlets of the
type
for office use, and satellite or cable TV connections, and to block up the
spaces between
the wall partitions in the space and the ceiling (which the Sublessor represents
can
be
done with drywall and to the best of its knowledge without the requirement
for
other
changes, such as fire safety changes, etc.) and may make other nonstructural
changes
to the space including paint and carpet, at its expense. The Sublessor also
agrees the
space
can be repartitioned to provide for a different configuration of offices and
otherwise
altered by the Sublessee at its expense subject to the conditions the Sublessor
would
be
required to follow under the underlying Lease, including the provision that
as
to such
alterations made by the Sublessee should the Principal Landlord elect that
such
alterations
be removed upon termination of the underlying Lease, Sublessee agrees to
cause
same to be removed at the Sublessee’s cost and expense, unless the Principal
Landlord
agrees otherwise in granting its consent to such alterations, and that the
Sublessor
will promptly submit such request to Principal Landlord and assist to obtain
such
approval if sought by the Sublessee.
8.
Over
leases.
Sublessee accepts this Sublease subject to the rules and regulations for use
of
the
space contained in the underlying Lease. Use of the Sublease Premises shall
be
consistent
therewith.
9.
Care
of Sublease Premises.
Sublessee shall, during the Term of this Sublease, keep the Sublease
Premises in good order, ordinary wear and tear excepted, and damage by the
elements,
fire, and other casualty excepted, and damage as a result of an action or
omission
of the Building, the Principal Landlord, or the Sublessor excepted.
10. Insurance.
Sublessee shall throughout the Term and at its sole cost and expense
maintain
business general liability insurance, against liability by an occurrence on
the
Sublease
Premises at one million per occurrence and 2 million general
aggregate.
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May
28,
2004
page
5 of
8
11. Security
Deposit.
Upon the
execution of this Sublease by the Sublessor and Sublessee,
and the written approval of the Principal Landlord of this Sublease, and both
being
provided to the Sublessee, the Sublessee shall deposit with the Sublessor cash
in the
amount of Five Thousand Eight Hundred Eighty-Two Dollars and Twenty-Seven
Cents
($5,882.27) (herein the “Security Deposit”) as security for payment and
performance
of Sublessee’s obligations under this Sublease. In the event of a default by
Sublessee
under this Sublease, Sublessor shall have the right to apply all or any portion
of the
Security Deposit to such default without prejudice to any other right or remedy
available
to the Sublessor, after giving the Sublessee notice and ten (10) days to cure
the default.
Sublessor shall hold the Security Deposit in an account so that the amount
is
readily
available to be returned when due. Such Security Deposit shall be returned
to
the Sublessee within seven (7) days after December 31, 2006, the expiration
of
the Sublease Term,
or
earlier termination.
12. Representations.
Each
party represents its existing entity is duly authorized and registered
to do business in the District of Columbia. Both parties represent to each
other
that
they
have timely paid all of their past rent and any other amounts due to WRIT,
and
that
neither has any past due obligation to WRIT, and has no pending dispute with
WRIT. The
Sublessor represents and warrants that the space it is subleasing, the Sublease
Premises,
was constructed and built out with all necessary permits and inspections being
obtained
and that the Sublease Premises complies with all laws, regulations, and any
other
Governmental requirements including ADA and fire, electrical and life safety
requirements,
and all codes and the underlying Lease, and that if a current Certificate of
Occupancy
(COC) is required by the Sublessor or any Governmental entity, or the
Principal
Landlord, or an insurance company, that the Sublessor will promptly provide
a
copy
of
the COC, or if necessary promptly obtain one, at its sole expense, and that
the
Sublessor
will indemnify and hold the Sublessee harmless from and against all costs,
damages,
and reasonable expenses (including reasonable attorney fees) incurred by the
Sublessor,
directly or indirectly, due to the failure of the Sublessor to have or so
provide such
a
COC.
The
Sublessor agrees the Sublessee may go directly to the Building’s representatives
on day-to-day
matters, and to request heating and air conditioning outside the normal
Building
operating hours, which Building charges if ordered by the Sublessee, shall
be
the
responsibility of the Sublessee.
13. Other.
Sublessor and the Landlord agree that the Sublessee, at its expense, may install
a
doorbell at the side of the Suite 202 door and locate 2 ringers inside, at
locations to be determined
by the Sublessee.
Sublessee
will not be required to continue to use any phone, DSL, or other service
Sublessor
currently uses.
Both
the
Principal Landlord and the Sublessor now recognize and accept that Xxxxxxxx
Xxxxxx,
or a substitute, may use one office and certain adjacent space and
certain
services
provided by Xxxxxx & Muss, P.L.L.C. and in such case will be paying Xxxxxx
&
Muss, P.L.L.C, a monthly rent, and that no further approval with respect to
this
arrangement
is required. Sublessee will be permitted to further sublease all or part of
the
Sublease
Premises, in accordance with the underlying Lease, as long as Sublessee
continues to meet its obligations under this Sublease, and Sublessor shall
promptly process
any necessary paperwork.
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May
28,
2004
page
6 of
8
As
to
Article X, Liability of Landlord, Paragraphs 10.1, 10.3, 10.4, and 10.5 of
the
underlying
Lease, Landlord, its employees, and agents shall not be liable to Sublessee,
where Landlord would not be liable to the Sublessor (the Tenant under the
underlying Lease).
Further,
Sublessee shall indemnify and hold Sublessor, and its employees, harmless from
and
against all actual costs, damages, and reasonable expenses (including reasonable
attorney
fees) incurred by the Sublessor for indemnification of the Landlord if caused
by
the
Sublessee’s use of the Sublease Premises or business conducted by the Sublessee
therein,
or an act or omission of the Sublessee in or on the Sublease Premises during
the
term of this Sublease, and/or any accident, injury or damage to any person
or
property of any
person, occurring in or on the Sublease Premises during the term of this
Sublease, except
that if the above in any way arises from or is caused by an act or omission
of
the Sublessor
or the Landlord the above shall not apply, and except that in no case shall
the
Sublessee
indemnify or hold the Sublessor or the Landlord harmless or otherwise be
responsible
for anything that has occurred previous to the commencement of this Sublease
including but not limited to anything arising from or related to the
construction and
build
out of the Sublease Premises that was done previous to the commencement of
this
Sublease, whether or not such event, or cost, damages, or expense, or other
loss, or thing,
occurred before or after commencement of this Sublease and in such case
Sublessor
shall indemnify and hold Sublessee, and its employees, harmless from and
against
all actual costs, damages and reasonable expenses (including reasonable
attorneys’
fees) incurred by the Sublessee.
14. Quiet
Enjoyment.
Sublessee shall, during the Term, have the right to have, hold, and enjoy
the
Sublease Premises without molestation or hindrance from the Sublessor,
Principal
Landlord, or any party claiming through or under the Sublessor or Principal
Landlord.
15. Use.
Sublessor shall use and occupy the Sublease Premises for general office
purposes.
Sublessor will not use or permit the use of the Sublease Premises, or any part
thereof,
in a manner which would violate the underlying Lease or this Sublease.
Sublessor
and the Principal Landlord at reasonable times shall have the right to enter
and
inspect
the Sublease Premises and to clean, or do repairs, related to the Sublease
Premises.
The Sublessee shall be permitted to move its furnishings and equipment into
and
out
of the Sublease Premises at its expense.
16. Surrender.
By no
later than midnight on the expiration date of this Sublease granted to
the
Sublessee, the Sublessee shall have vacated and quit and surrendered to the
Sublessor
the Sublease Premises, broom clean, and in good condition, ordinary wear and
tear
and
damage by the elements, fire, and other casualty excepted, and damage as a
result
of
an action or omission of the Building, the Principal Landlord or the Sublessor
excepted,
and the Sublessee shall have removed from the Sublease Premises all of its
personal
property, but not any phone/data, T.V., or similar lines/wires or electrical
outlets added.
Sublessee’s obligation to perform and observe this covenant shall survive the
expiration
date of the Term of this Sublease.
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May
28,
2004
page
7 of
8
17. Authorization.
The
signatory to this Sublease for Sublessee represents by such signature
that he or she is authorized to enter into this Sublease for and in behalf
of
the Sublessee.
The signatory to this Sublease for Sublessor represents by such signature that
he
or she
is authorized to enter into this Sublease for and in behalf of the
Sublessor.
18. Notices.
All
payments or notices required or permitted hereunder or otherwise shall
be
in
writing and hand delivered or delivered by Federal Express paid by sender and
sent for
next
day delivery, if to this Sublessor, at 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx
000, if before commencement of this Sublease Term, and an address to be
specified in writing, if after commencement of the Sublease Term, and if to
the
Sublessee, to Xxxxxx & Muss, P.L.L.C.
attention Xxxxxxx X. Xxxxxx, 0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000,
Xxxxxxxxxx,
X.X. 00000, if before commencement, and to Suite 202, if after commencement.
All payments and notices shall be deemed effective (i) upon receipt, if
sent
by
personal delivery, or (ii) on the first business day after sent if by Federal
Express. Either party may, by written notice to the other, designate a new
address and/or addresses for such payments and notices.
19. Brokerage.
Sublessee and Sublessor each represent and warrant to each other that no
real
estate agent, broker or finder has acted for it with respect to this Sublease
or
the transaction
contemplated hereby, and does hereby indemnify and hold harmless the other
from
the
claim of any such persons claiming by or through it by reason of this Sublease
or
the
transaction contemplated hereby.
20. Jury
Trial.
Sublessor and Sublessee each hereby waives all right to trial by jury in any
claim,
action, proceeding or counterclaim by either Sublessor or Sublessee against
the
other
on
any matters arising out of or in any way connected with this
Sublease.
21. Invalidity.
If any
provision of this Sublease shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
be
affected thereby.
22. Construction.
This
Sublease (i) embodies the entire integrated agreement of the Sublessor
and Sublessee with respect to Sublessee’s lease and occupancy of the Sublease
Premises,
and supersedes all prior or contemporaneous agreements and understandings,
whether
written or oral, express or implied, (ii) may be executed in multiple
counterparts, each of which shall constitute an original and all of which shall
constitute but one and the same
agreement, (iii) shall be governed by and construed in accordance with the
law
of the
District of Columbia, and (iv) shall be binding upon and inure to the benefit
of
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