Exhibit 10.1
SUBLEASE
1. PARTIES
This Sublease, dated April 18, 2005 is made between Xxxxxx Group, Inc.
("Sublessor"), a Delaware Corporation and IPIX Corporation
("Sublessee"), a Delaware Corporation.
2. MASTER LEASE
Sublessor is the lessee under a written lease dated February 15th 2000,
wherein REC Partners, L.P., ("Lessor") leased to Sublessor certain
space within the building located on the real property located in the
City of Reston, State of Virginia, described as 00000 Xxxxxx Xxxxx Xxxx
consisting of approximately 12,027 rentable square feet on the fourth
(4th) floor. The said lease and any amendments are herein collectively
referred to as the "Master Lease" and are attached hereto as "Exhibit
A." Sublessor covenants and agrees that it will not amend the Master
Lease without further notification to, and prior consent of, Sublessee.
3. PREMISES
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the Premises ("Premises") consisting of 12,027
rentable square feet on the 4th floor designated on the attached floor
plan ("Exhibit B").
4. WARRANTY BY SUBLESSOR
Sublessor warrants and represents to Sublessee that the Master Lease
has not been amended or modified except as expressly set forth in
Exhibit A herein, that Sublessor is not now, and as of the commencement
of the Term hereof will not be, in default or breach of any of the
provisions of the Master Lease, and that Sublessor has no knowledge of
any claim by Lessor that Sublessor is in default or breach of any of
the provisions of the Master Lease.
5. TERM
The Term of this Sublease shall commence on April 15, 2005,
(hereinafter "Commencement Date") or the date upon which Landlord
consents to this Sublease, whichever shall first occur, and end on
October 30, 2007 (hereinafter "Termination Date") unless otherwise
sooner terminated in accordance with the provisions of this Sublease.
In the event the Term commences on a date other than the Commencement
Date, Sublessor and Sublessee shall execute a memorandum setting forth
the actual date of commencement of the Term. However, the termination
date shall remain October 30, 2007.
6. BASE RENT
Sublessee shall pay monthly rent to Sublessor, without deduction,
set-off, notice, or demand, at:
The Xxxxxx Group
Xxxxxxxx Square - Las Colinas
0000 Xxxxx X'Xxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Or, at such other place as Sublessor shall designate from time to time
by notice to Sublessee. Sublessee shall pay the following (which shall
entitle Sublessee to occupancy of the premises, services and utilities
and all other benefits of the Master Lease):
Months 1-12: $24.75 per rentable square foot per year, full service,
(1st 2 months abated),
Months 13-24: $25.49 per rentable square foot per year full service,
Months 25-31: $26.25 per rentable square foot per year full service,
in twelve (12) equal installments payable in advance on the first day
of each month of the Term. If the Term begins or ends on a day other
than the first or last day of a month, the rent for the partial months
shall be prorated on a per diem basis. Unpaid rent shall bear interest
until paid at the prime rate of interest plus two percent (2%).
7. OPERATING EXPENSE INCREASES AND REAL ESTATE TAXES
Sublessee will be responsible for any increases in operating expenses
and real estate taxes that are billed by the Landlord to, and paid by,
the Sublessor over a 2005 base year. Beginning on April 15th of 2006
and occurring every April 15th throughout the Sublease term, Sublessee
will pay as additional rent to Sublessor, the estimated increases in
operating expenses and real estate taxes over the previous year's
amount for operating expenses and real estate taxes, which estimate
will be provided by the Landlord. Once Landlord has provided Sublessor
with the actual expenses for the previous year, the following year's
payments for estimates will be increased or decreased accordingly,
depending on the amount that Sublessee paid for estimates that was more
or less than the actual expenses for the year those estimates were
paid.
8. TENANT IMPROVEMENTS
Sublessee will have the right to make improvements to the space at
Sublessees sole expense, provided such improvements are made in
accordance with the Master Lease. Sublessee will be responsible for
obtaining the proper approval from the Landlord regarding the design
and construction and abiding by the Landlord's policies and procedures
regarding construction of tenant improvements and move-in.
9. SECURITY DEPOSIT
Sublessee shall deposit with Sublessor upon execution of this Sublease
the sum of Ninety Nine Thousand Two Hundred Twenty Two Dollars and
Seventy-Six cents ($99,222.76) in the form of cash or check in
immediately available funds as a security deposit (the "Security
Deposit"). The Security Deposit shall be considered as security for
Sublessee's faithful performance of Sublessee's obligations hereunder.
In addition, at the time of execution Sublessee shall deposit with
Sublessor the first month's rent in the amount of Twenty Four Thousand
Eight Hundred Five Dollars and Sixty-Nine cents ($24,805.69) to be
applied toward rent for the period April 15, 2005-May 15, 2005.
Sublessor further agrees to apply the Security Deposit for the monthly
rent payments owed for the last three (3) months of the term of this
Sublease. If Sublessee fails to pay Rent or other charges when due
under this Sublease, or fails to perform any of its other obligations
hereunder, Sublessor may use or apply all or any portion of the
Security Deposit, without prejudice to any other remedy which Sublessor
may have, for the payment of any Rent or other amount then due
hereunder and unpaid, for the payment of any other sum for which
Sublessor may become obligated by reason of Sublessee's default or
breach, or for any loss or damage sustained by Sublessor as a result of
Sublessee's default or breach. If Sublessor so uses any portion of the
Security Deposit, Sublessee shall, within ten (10) business days after
written demand by Sublessor, restore the Security Deposit to the full
amount originally deposited, and Sublessee's failure to do so shall
constitute a default under this Sublease. Sublessor shall not be
required to keep the Security Deposit separate from its general
accounts, and shall have no obligation or liability for payment of
interest on the Security Deposit. In the event Sublessor assigns or
otherwise conveys its interest in this Sublease, Sublessor shall
deliver to its assignee so much of the Security Deposit as is then held
by Sublessor and, provided that Sublessor has in fact delivered the
Security Deposit as aforesaid, Sublessee agrees to look solely to such
grantee or assignee for application or return of the Security Deposit
from any mortgage or any purchaser of Sublessor's interest at a
foreclosure sale of any grantee of a deed in lieu of foreclosure.
Within thirty (30) business days after the Term has expired, or
Sublessee has vacated the Premises, whichever shall last occur, and
provided Sublessee is not then in default of any of its obligations
hereunder, the Security Deposit, or so much thereof as had not been
applied by Sublessor, shall be returned to Sublessee or to the last
assignee, if any, of Sublessee's interest hereunder.
10. LATE CHARGES
Other remedies for nonpayment of rental notwithstanding, time is of the
essence of this Sublease; and if Sublessor elects to accept rent on or
after the sixth (6th) day of the month, a late charge of One Hundred
Dollars ($100.00) will be due as additional rent. Sublessee agrees to
tender all late rents by cashier's check, certified check, or money
order. In the event Sublessee's rent check is dishonored by the bank,
Sublessee agrees to pay Sublessor $25.00 as a handling charge and, if
applicable, the late charge. Dishonored checks must be replaced by
cashier's check, certified check or money order. In the event more than
one check is dishonored, Sublessee agrees to pay all future rents and
charges in the form of cashier's check, certified check, or money
order. Any other amounts payable to Sublessor under this Sublease, with
the exception of rent, shall be considered past due 30 days from
Sublessor's billing date; and Sublessee shall pay interest on such past
due amount until paid at the prime rate of interest plus two percent
(2%). The parties agree that such charges represent a fair and
reasonable estimate of the costs the Sublessor will incur by reason of
such late payment and/or returned check.
11. ASSIGNMENT AND SUBLETTING
Sublessee shall not mortgage, encumber, assign, convey or sublet this
Sublease or any interest thereunder in any manner which would
constitute a breach or violation of the Master Lease and without the
prior written consent of Sublessor, which shall not be unreasonably
withheld, and the prior written consent of Lessor, as required under
the terms of the Master Lease.
12. OTHER PROVISIONS OF SUBLEASE
All terms and conditions of the Master Lease are incorporated into and
made part of this Sublease as if Sublessor were the lessor thereunder,
Sublessee were the Lessee thereunder, and the Premises were the Master
Premises thereunder.
Except for the payment of rent thereunder, giving notice to or
otherwise communicating with Lessor and as otherwise noted herein,
Sublessee shall perform and observe all the agreements, covenants,
conditions and provisions to be performed and observed by Sublessor
under the Master Lease as and when performance and observance is due
and that the Lessor under the Master Lease or the Sublessor will have
the right to enforce such agreements, covenants, conditions and
provisions directly against Sublessee. Sublessee shall not commit or,
to the extent within its responsibilities under this Sublease, suffer
any act or omission that will violate any of the provisions of the
Master Lease. Sublessor shall exercise due diligence in attempting to
cause Lessor to perform its obligations under the Master Lease for the
benefit of Sublessee.
The failure of Lessor to perform its covenants under the Master Lease
shall not allow Sublessee to withhold, set-off or xxxxx any rent or
other amounts due hereunder; further, in no event shall Sublessor be
liable to Sublessee for any damages, costs or expenses which Sublessee
may incur by reason of Lessor's failure to perform its covenants under
the Master Lease, provided that in either case Sublessor has exercised
due diligence in attempting to cause Lessor to perform its obligations.
If the Master Lease terminates, this Sublease shall terminate and the
parties shall be relieved of any future liability or obligation under
this Sublease, provided however, that if the Master Lease terminates as
a result of a default or breach by Sublessor or Sublessee under this
Sublease and/or the Master Lease, then the defaulting party shall be
liable to the non-defaulting party for the damage suffered as a result
of such termination.
If the Master Lease gives Sublessor any right to terminate the Master
Lease at Sublessor's option, Sublessor will not terminate the Master
Lease without the expressed written consent of the Sublessee. If the
Master Lease gives Sublessor any right to renew the Master Lease at
Sublessor's option, Sublessee shall have no right to require Sublessor
to renew the Master Lease. If the Master Lease gives Sublessor the
right of first offer, Sublessee shall have no right to require
Sublessor to exercise the right of first offer.
Sublessee shall have use of Sublessor's remaining furniture and
fixtures (the "Equipment"). Sublessee shall, at its own expense, keep
the Equipment in good working order and repair, reasonable wear and
tear and prior conditions excepted, and, shall furnish all parts,
mechanisms, and devices required to keep the Equipment in good working
order, prior condition excepted. Sublessee hereby assumes all risk of
loss, damage, theft, or destruction of the Equipment during the
Sublease.
Sublessor shall either cause Lessor to provide all notifications under
the Master Lease directly to Sublessee or shall deliver immediately
upon receipt by Sublessor to Sublessee all notifications received by
Sublessor from Lessor.
13. BROKER PARTICIPATION
Sublessor and Sublessee warrant and represent that they have dealt with
no real estate broker in connection with the Sublease other than
Newmark on behalf of the Sublessor and Xxxxxxx Xxxx on behalf of the
Sublessee and that no other broker is entitled to any commission on
account of this Sublease. Sublessee shall have no obligation to pay
Newmark any commission or other fees as a result of Sublessee entering
into this Sublease.
Sublessor shall be responsible for payment of any and all brokerage
commissions, per a written agreement between Sublessor and Newmark. The
commission shall be paid upon sublease execution.
15. FURNITURE, FIXTURES AND EQUIPMENT
Sublessee shall have use of furniture, fixtures and Equipment ("FF&E")
throughout the term of the Sublease, subject to normal wear and tear.
Such FF&E shall be in accordance with Exhibit C. The FF& E shall remain
property of the Sublessor upon the expiration of the Sublease.
16. ODIN TECHNOLOGIES
Sublessee recognizes that Odin Technologies ("OT") will be occupying
part of the Premises through May 31, 2005. Sublessor shall have no
obligation or liability to Sublessee as a result of OT's occupancy,
provided, that Sublessor has exercised due diligence in enforcing its
rights and OT's obligations under the OT sublease including OT's
obligation to vacate by May 31, 2005. Sublessor shall credit Sublessee
any amounts paid by OT to Sublessor for OT partial use of the premises
from the date of this sublease through May 31, 2005. Credit will be
given to Sublessee against rent due to Sublessor for the period July
15, 2005 - August 15, 2005.
17. ATTORNEYS' FEES
If Sublessor or Sublessee shall commence an action against the other
arising out of or in connection with this Sublease, the prevailing
party shall be entitled to recover its costs of suit and reasonable
attorney's fees.
18. USE OF PREMISES
Sublessee shall use the Premises for general office purposes and for
all lawful activities normally incidental thereto and related to the
conduct of Sublessee's business and for no other purpose.
19. NOTICES
All notices and demands which may or are to be required or permitted to
be given by either party on the other hereunder shall be in writing.
All notices and demands shall be sent in person or by United States
Certified or Registered Mail, postage prepaid, and to the address
herein below, or to such other place as the parties may from time to
time designate in a notice to the other.
To Sublessor: Xxxxxx Group, Inc.
Attn: Xxxxx Xxxxxxx
Xxxxxxxx Square - Las Colinas
0000 Xxxxx X'Xxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
To Sublessee: IPIX Corporation
Attn: Xxx Xxxx
00000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
20. CONDITION OF PREMISES
Unless stated in a written punchlist delivered to Sublessor by April
15, 2005 or the date Sublessee first occupies the premises, whichever
is earlier, Sublessee's taking possession shall be conclusive evidence
as against Sublessee that the Premises were in good order and
satisfactory condition when the Sublessee took possession.
21. MAINTENANCE OF PREMISES
Sublessee shall be responsible for maintenance of the Premises and
improvements in accordance with the terms and conditions of the Master
Lease regarding same.
22. INSURANCE
Sublessee shall maintain at its sole cost throughout the Term hereof
such insurance policies as are required to be maintained by Sublessor
under the Master Lease, naming as the insured, Lessor, Sublessor and
Sublessee, as their respective interests may appear, and contain an
endorsement that such policy shall not be cancelable except upon thirty
(30) days prior written notice to Lessor and Sublessor.
23. INDEMNIFICATION
Sublessee assumes liability for and hereby agrees to indemnify,
protect, save and keep harmless Sublessor, its agents, employees,
officers, directors, successors and assigns, from and against any and
all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs and expenses including reasonable legal expenses
incurred by or asserted against Sublessor, its agents, employees,
officers, directors, successors and assigns in any way relating to or
arising out of Sublessee's performance under this Sublease.
Sublessor assumes liability for and hereby agrees to indemnify,
protect, save and keep harmless Sublessee, its agents, employees,
officers, directors, successors and assigns from and against any and
all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs and expenses including reasonable legal expenses
incurred by or asserted against Sublessee, its agents, employees,
officers, directors, successors and assigns in any way relating to or
arising out of Sublessor's performance under this Sublease.
24. CONSENT BY LESSOR
As required under the terms of the Master Lease, this Sublease shall be
of no force or effect unless consented to by Lessor within thirty (30)
days after Sublease execution. Such consent is attached as Exhibit D.
25. EXHIBITS A, B, C & D ARE HEREBY MADE A PART OF THIS SUBLEASE.
26. SIGNS
Sublessee shall have the right to affix Sublessee's name and logo to
any available marquees, signs, placards or on any other customary
locations on or within the building where the premises leased hereunder
is located.
Sublessor: Xxxxxx Group, Inc.
Date: 4/22/05
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By: /s/ Xxxxx Xxxxxxx
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Title: Controller
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Sublessee: IPIX CORPORATON
Date: 4/13/05
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By: /s/ Xxxxxxx X. Crew
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Title: Executive Vice President
and Chief Financial Officer
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