AMENDED AND RESTATED SUBLEASE AGREEMENT
Exhibit 10.8
AMENDED AND RESTATED
SUBLEASE AGREEMENT
SUBLEASE AGREEMENT
This
Amended and Restated Sublease Agreement is entered into this
25th day of January, 2007 by
and among UBE Services, LLC, formerly known as United Bio Energy, LLC (hereinafter referred to as
“Sublessor”), and Xxxxx Engineering, LLC (hereinafter referred to as “Sublessee”).
WITNESSETH:
WHEREAS, pursuant to that certain Sublease dated November 11, 2003 between MTG, L.L.C.
(“Tenant”), Xxxxxxx Companies, Inc. (“Xxxxxxx”), and United Bio Energy Partners, LLC (“United”), as
amended by Consent dated May 5, 2005, copies of which are attached hereto as Exhibit A (hereinafter
referred to as the “Primary Sublease”), Xxxxxxx is the sublessee from Tenant of the 55,000 square
feet of office space on real property legally described in the Primary Sublease, of which, Xxxxxxx
agreed to sublease to Sublessor 12,292 square feet; and
WHEREAS, pursuant to that certain Sublease Agreement dated May 24, 2005, between Sublessor and
Sublessee (the “Sublease”) Sublessee leased from Sublessor a portion of the 12,292 square feet
leased from Xxxxxxx consisting of Six Hundred Sixty Three (663) square feet (the “Leased Premises”)
covered under its Primary Sublease pursuant to the conditions precedent as expressed herein and
upon the terms and conditions as contained in the Primary Sublease and this Sublease Agreement; and
WHEREAS, Sublessee and Sublessor desire to amend and restate the sublease to, among other
things, increase the total square footage of Leased premises to One Thousand Three Hundred Twenty
Six (1,326) square feet (the “Subject Premises”)
NOW, THEREFORE, in consideration of the premises and flue mutual undertakings, covenants,
promises, and agreements of the parties, IT IS HEREBY AGREED AS FOLLOWS:
1. Term. Providing all of the terms and conditions contained within this Sublease
Agreement are fulfilled, Sublessor shall sublease unto Sublessee and Sublessee shall accept the
sublease of the Subject Premises from the date hereof (the “Commencement Date”) through the end of
the initial term of the Primary Sublease, subject to the rents, terms, covenants, conditions, and
provisions as set forth in the Primary Sublease. If the initial term of the Primary Sublease is
extended pursuant to the terms of the Primary Sublease, the term of this Sublease Agreement shall
be extended from and through the same new extended term date.
2. Termination. Either Sublessor or Sublessee may terminate this Sublease Agreement
without liability and without cause by providing thirty (30) days prior written notice to the other
xxxxx. Otherwise, this Sublease Agreement shall automatically terminate on the end of the initial
term of the Primary Sublease, unless said initial term is extended pursuant to the terms of the
Primary Sublease.
3. Commencement Date. The Commencement Date is conditioned upon the completion of the
following conditions:
| a) | This Sublease Agreement is executed by the Sublessor and Sublessee; and | ||
| b) | Tenant and Xxxxxxx have evidenced their approval to this Sublease Agreement by affixing their authorized signatures to the same. | ||
| 4. | Primary Sublease. Sublessee represents and warrants that it has read the Primary Sublease and agrees that: | ||
| a) | The terms, covenants, promises, and conditions of the Primary Sublease are incorporated herein; | ||
| b) | Sublessee shall comply with and be bound by all of the terms, covenants, promises, and conditions of the Primary Sublease; and | ||
| c) | Sublessor shall duly observe and perform those obligations imposed upon the Tenant, Xxxxxxx, and United under the Primary Sublease to the extent that such obligations are not provided in this Sublease Agreement to be observed or performed by Sublessee, except with respect to any failure in such observance or performance which results from any default by Sublessee. |
5. Warranty. Sublessor warrants and represents to Sublessee that on the Commencement
Date:
| a) | The Primary Sublease is valid and existing, there are no existing defaults on the part of the Tenant, Xxxxxxx, or United with respect thereto, and Tenant and Xxxxxxx do not hold any claim against United; and | ||
| b) | There are will be no contracts for services or otherwise on account of maintenance or repairs which expressly or impliedly are or will be binding upon Sublessee or upon the Leased Premises. |
6. Rent. In consideration for this Sublease Agreement, Sublessee shall pay Sublessor
a monthly rental for the Leased Premises of One Thousand Three Hundred Sixty Five and 00/100
dollars ($1,365.00) per month, due and payable on the first day of each and every month and
prorated for any partial month during the term of this Sublease Agreement.
7. Insurance. Sublessee shall maintain in force at all times during the term of this
Sublease Agreement, at Sublessee’s expense, the following insurance in the amounts specified below
or such other amounts as Sublessor may from time to time reasonably request, with insurance
companies and on forms satisfactory to Sublessor:
| a) | Commercial Genera1 Liability “occurrence form”, or equivalent, covering the Subject Premises and operations of Sublessee, including personal injury and contractual liability, with combined single limit for bodily injury and property damage of not less than $2,000,000 per occurrence, $2,000,000 annual aggregate, naming Sublessor, its agents and employees, and any others specified from time to time by Sublessor, as additional |
2
| insureds under such policy. Such policy will be primary insurance, and any similar insurance which may be maintained by Sublessor shall be in excess of Sublessee’s policy, and not contributory therewith. |
| b) | Insurance covering all of Sublessee’s furniture, machinery, equipment, stock, merchandise, and any other personal property owned or used in Sublessee’s business and found in, on, or about the Subject Premises, in an amount not less than the full replacement value, against Basic Form Causes of Loss (fire and extended coverage). | ||
| c) | Workers’ compensation insurance insuring against and satisfying Sublessee’s obligations and liabilities under the Worker’s Compensation Laws of the State of Kansas, including Employer’s Liability insurance with a limit of not less than $1,000,000. | ||
| d) | If Sublessee operates owned, hired, or non-owned vehicles, Automobile Liability insurance shall be maintained with limits not less than $1,000,000. |
During the term of this Sublease Agreement, Sublessee shall provide Sublessor with a
Certificate of Insurance or Certificates of Insurance evidencing the above-described policies and
levels of insurance and naming Sublessor as an additional insured. Further, Sublessee shall convey
a waiver of subrogation with regards to the Subject Premises to Sublessor as evidenced by an
endorsement on Sublessee’s insurance policies, copies of which shall be provided to Sublessor.
Sublessee’s insurance policies shall be endorsed to require at least thirty (30) days advance
notice to the Sublessor prior to the effective date of any termination or cancellation of coverage.
Sublessee will not do or permit to be done any act or thing upon the Subject Premises or in or
around the Subject Premises which would (i) jeopardize or be in conflict with fire insurance
policies covering the Subject Premises and personal property in the Subject Premises; (ii) increase
the rate of insurance applicable to the Subject Premises to an amount higher than it would
otherwise be for commercial office use; or (iii) subject Lessor to any liability or responsibility
for injury to any person or persons or to property by reason of any business or operation being
carried on upon the Subject Premises.
8. Utilities. Sublessor shall furnish the Subject Premises with those services
customarily provided in comparable office buildings in the vicinity of the Subject Premises,
including without limitation: (i) electricity for lighting and operation of low-wattage office
machines (such as personal computers, facsimile machines, calculators, copy machines, printers, and
typewriters) during normal business hours, although Sublessor will not be obligated to furnish more
power to the Subject Premises than is proportionately allocated to the Subject Premises under the
Leased Premises building design; (ii) heat and air conditioning reasonably required for the
comfortable occupation of the Subject Premises during normal business hours; although Sublessor
will not be obligated to furnish more heating or air conditioning to the Subject Premises than is
proportionately allocated to the Subject Premises under the Leased Premises building design; (iii)
lighting replacement during normal business hours (for the
3
Subject Premises’ standard lights, but not for any special Sublessee lights, which will be
replaced at Sublessee’s sole cost and expense); (iv) trash removal; and (v) water. No janitorial
or cleaning services will be provided to the Subject Premises by Sublessor other than to that
portion of the Subject Premises consisting of Sixteen (16) square feet of server room area.
9. Amenities. Sublessor shall furnish Sublessee with the following amenities as part
of its monthly administrative fee: use of break room, including coffee, tea, utensils, paper
products; bathroom amenities; custodial upkeep of server room area; reception desk receiving and
announcement of Sublessee’s visitors; and transfer of any telephone calls for Sublessee that may
come through Sublessor’s telephone lines. If the level of amenities or services provided reader
this paragraph increase in the future, Sublessor reserves the right to reassess the monthly
administrative fee and reasonably increase the same by written notice to Sublessee.
10. Building Access. Sublessor shall furnish Sublessee with keys to the Leased
Premises, which Sublessee will not duplicate or copy. Should Sublessee terminate or relocate an
employee from the Subject Premises, it agrees to return the key held by said employee to Sublessor.
11. Structural Alterations. Sublessee agrees that it shall not make any structural
alterations to the Subject Premises.
12. Notices. Any notices shall be in writing and shall be sent by facsimile, email,
or registered or certified mail, return receipt requested, addressed to the parties at the
addresses shown below or to such other addresses as either party has designated to file other party
in writing:
| UBE Services, LLC | With Copy to: | US Bio Energy Corporation |
||||
| Attn: Xxx Xxxxxx | 0000 Xxxxx Xxxxx, Xxxx Xxxxxxx 175 | |||||
| 0000 X. Xxxxx Xxxx | Xxxxx Xxxxx Xxxxxxx, XX 00000 | |||||
| Xxxxxxx, XX 00000-0000 | Attn: General Counsel | |||||
| Email: XXxxxxx@xxxxxxxxxxx.xxx | ||||||
| Fax: 000-000-0000 | ||||||
| Xxxxx Engineering, LLC | ||||||
| Attn: Xxxxxxxx X Xxxxxxx | ||||||
| 000 X. Xxx. 000 | ||||||
| X.X. Xxx 000 | ||||||
| Xxxxxxx Xxxxx, XX 00000 | ||||||
| Email: xxxxxxxx@xxxxxxxx.xxx | ||||||
| Fax: |
13. Entire Agreement. This Sublease Agreement contains the entire agreement and
understanding between the parties hereto with respect to the Leased Premises, and there are no
other terms, covenants, obligations, or representations; oral or written, of any kind whatsoever.
Furthermore, nothing contained herein shall be construed to release Sub-Lessor from any of its
obligations to Tenant or Xxxxxxx under the terms of the Primary Sub-Lease.
4
14. Binding Effect. This Sublease Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto, their respective heirs, executors, administrators, successors,
and assigns, and may not be revoked or amended, except by instrument, in writing, subscribed by
the party sought to be charged therewith.
15. Governing Law. This Sublease Agreement shall be interpreted and governed by the
laws of the State of Kansas.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease Agreement as of the date,
month and year first above written.
| “SUBLESSOR” | ||||||
| UBE Services, LLC | ||||||
| /s/ Xxx Xxxxxx | ||||||
| By: | Xxx Xxxxxx,Vice President | |||||
| “SUBLESSEE” | ||||||
| XXXXX ENGINEERING, LLC | ||||||
| /s/ Xxxxxxxx X. Xxxxxxx | ||||||
| By: | Xxxxxxxx X. Xxxxxxx
|
|||||
| Title: | CFO
|
|||||
5
CONSENT TO SUBLEASE AGREEMENT
Consistent with that certain Sublease dated November 11, 2003 between MTG, L.L.C. (“Tenant”),
Xxxxxxx Companies, Inc. (“Xxxxxxx”), and United Bio Energy Partners, LLC (“United”), as amended by
Consent dated May 5, 2005, the undersigned further consents to the Amended and Restated Sublease
Agreement between UBE Services, LLC and Xxxxx Engineering, LLC as executed on January ___, 2007.
| MTG, L.L.C. | ||||||
| /s/ Xxxxx X. Xxxxxxxx | ||||||
| By: | Xxxxx X. Xxxxxxxx Date | |||||
| Manager | ||||||
| XXXXXXX COMPANIES, INC. | ||||||
| /s/ Xxxxx X. Xxxxxxxx | ||||||
| By: | Xxxxx X. Xxxxxxxx Date | |||||
| Vice President and Chief Financial Officer | ||||||
6
