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EXHIBIT 10.4
SUBLEASE AGREEMENT
TABLE OF CONTENTS
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1. Premises
2. Demise of Premises
3. Term
4. Rent and Additional Rent
5. Use of the Premises
6. Covenants Contained in the Lease
7. Attornment
8. Limitation of Liability and Indemnity
9. No Duty on Part of Landlord
10. Assignment and Subletting
11. Default
12. Remedies
13. Notices
14. Hold Over
15. Security Deposit
16. Sublessee Improvements
17. Miscellaneous
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SUBLEASE AGREEMENT
This Sublease Agreement (the "SUBLEASE") is entered into by and between A-1
Xxxxxxx Relocation System, Inc., a Texas corporation (the "SUBLESSOR") and
Calidad Foods, Inc., a Texas corporation (the "SUBLESSEE").
WITNESSETH
WHEREAS, Sublessor entered into that certain Lease Agreement (the "LEASE
AGREEMENT") by and between Sublessor, as Tenant, and Northbrook Ventures, Inc.,
a Delaware corporation, as Landlord (herein so called), dated April 23, 1993,
covering certain premises in the building known as Avenue R III Building, which
Lease Agreement was amended by that certain modification and ratification of
lease with addendums "A", "B" and "C" to Lease Agreement dated August 8, 1995
(the Lease Agreement and the First Amendment being hereinafter collectively
referred to as the "LEASE"), a copy of which lease is attached hereto as
Exhibit I-A, the terms of which including all defined terms, being incorporated
herein by reference for all purposes; and
WHEREAS, Sublessee is desirous of subleasing all of the Leased Premises (as
defined in the Lease) from the Sublessor (herein called the "SUBLEASED
PREMISES"), said Subleased Premises consisting of 67,375 rentable square feet.
NOW, THEREFORE, for and in consideration of the payment of the Rent, the
Additional Rent and the performance of the covenants and agreements hereinafter
set forth, Sublessee and Sublessor hereby agree as follows:
1. PREMISES. As used herein, the term Premises shall refer to all of the
Subleased Premises.
2. DEMISE OF PREMISES. Sublessor hereby leases, lets and demises to the
Sublessee, and the Sublessee hereby hires, leases and takes from the
Sublessor, the Premises to Sublessee "as is" upon the commencement of the
Term, and Sublessee agrees that it will accept the Premises in such
existing condition.
3. TERM. The term (the "TERM") of this Sublease shall be for a period
commencing on August 1, 1995 and ending on August 31, 1999. However,
subject to the provisions of Section 7 hereof, the Term shall terminate
earlier in the event of surrender, forfeiture, or other termination of
the Lease.
4. RENT AND ADDITIONAL RENT. For the Term of this Sublease, Sublessee shall
pay to Sublessor as rent (the "RENT") for the Premises monthly base
rental in the sum of $14,597.91, payable in advance on the first day of
each month during the Term hereof, but are not limited to, those payments
set out under the provisions of the Lease entitled Adjustment of Base
Rental, and operating expenses.
5. USE OF THE PREMISES. The Premises shall be used by Sublessee for general
office and warehouse/bakery use and only and for no other purpose
whatsoever.
6. COVENANTS CONTAINED IN THE LEASE. The Sublessee hereby agrees to comply
with all the provisions of the Lease that are to be performed by
Sublessor as Tenant under the Lease with respect to the Premises. The
provisions of the Lease, to the extent that they do not conflict with the
specific provisions contained in this Sublease, are fully incorporated
into this Sublease. The Sublessee agrees to be bound to the Sublessor by
all the terms of the Lease and to assume toward Sublessor and to perform
all of the obligations and responsibilities that Sublessor, by the Lease,
assumes toward the Landlord under the Lease with respect to the Premises.
The relationship between Sublessee and Sublessor under the Sublease shall
be the same as between the Sublessor and Landlord under the Lease.
Notwithstanding anything to the contrary contained in the Lease or
contained in this Sublease, Sublessor alone shall be entitled to exercise
those rights and privileges, shall continue to be solely responsible for,
and shall timely discharge or otherwise satisfy, all of the obligations
and responsibilities of the "Tenant" pursuant to the terms,
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provisions and conditions of the Lease Agreement as set forth in
Paragraph 1 of the Lease Agreement entitled: "Lease of Premises," "Tenant
Plans and Specifications-Installation of Improvements," Completion of
Improvements and Commencement of Rent," "Assignment-Subletting,"
"Indemnity, Liability and Loss or Damage," "Holding Over," "Transfer of
Landlord's Rights," "Default," "Remedies," "Security Deposit," "Notices,"
the Exhibit to the Lease which relates to initial tenant improvements to
the Leased Premises, and all Riders or Addenda to the Lease Agreement.
7. ATTORNMENT. In the event of cancellation or termination of the Lease
before the expiration date of this Sublease or any extensions or renewals
hereof, or in the event of the surrender of the Lease, whether
voluntarily, involuntarily or by operation of law, the Sublessee, at the
option of the Landlord exercisable in Landlord's sole and absolute
discretion, shall make full and complete attornment to the Landlord for
the balance of the Term of this Sublease, including any extensions and
renewals hereof, based on the same covenants and conditions of this
Sublease, so as to establish direct privity of estate and contract
between the Landlord and the Sublessee, with the same force and effect as
though this Sublease was originally made directly between the Landlord
and the Sublessee. The Sublessee shall thereafter make all rent payments
directly to the Landlord. The Landlord will only then become the
Sublessor under this Sublease.
8. LIMITATION OF LIABILITY AND INDEMNITY. Notwithstanding any provision of
the Lease to the contrary, neither the Sublessor nor the Landlord shall
be liable to the Sublessee, or to any of its agents, employees, servants,
or invitees, for any damage to persons or property due to the condition,
design or any defect in the building or its mechanical systems that may
exist or subsequently occur. Sublessee, with respect to itself and its
agents, employees, servants and invitees, expressly assumes all risk and
damage to persons or property, either proximate or remote, by reason of
the present or future condition of the Premises or the building in which
the Premises are located. Sublessee agrees that it will indemnify and
hold Sublessor and Landlord harmless from all suits, claims and actions
of any kind by reasons of any breach, violation or nonperformance of any
term or condition on the part of the Sublessee under this Sublease.
Additionally, Sublessee agrees to indemnify and hold Sublessor and
Landlord harmless from all claims, actions, damages, liabilities and
expenses asserted against the Sublessor and/or Landlord on account of
injuries to person or damage to property to the extent that any such
damage or injury may be caused, either proximately or remotely, by any
act or omission, whether negligent or not, of Sublessee or any of its
agents, servants, employees, contractors, patrons or invitees or of any
other person entering upon the Premises under or with the express or
implied invitation of Sublessee, or if any such injury or damage may in
any other way arise from or out of the occupancy or use of the Premises
by the Sublessee, its agents, employees, servants or invitees.
9. NO DUTY ON PART OF LANDLORD. Sublessee expressly recognizes,
acknowledges and agrees that Landlord shall have no direct duty towards
Sublessee with regard to the performance of any covenant to be performed
by Landlord under the Lease.
10. ASSIGNMENT AND SUBLETTING. Sublessee shall neither assign the Sublease
or the Lease, nor sublease all or any part of the Premises without the
prior written consent of Sublessor and Landlord. The Lease and Landlord's
rights thereunder may be assigned, in whole or in part, by Landlord.
11. DEFAULT. The happening of any one or more of the following events shall
constitute an Event of Default by Sublessee under this Sublease:
11.1 Sublessee shall fail to pay when due any installment of Rent or
Additional Rent.
11.2 Sublessee shall fail to comply with any term, provision or
covenant of this Sublease.
11.3 Sublessee shall become insolvent, make a transfer in fraud of
creditors, make any act of bankruptcy, make an assignment for the
benefit of creditors, or admit in writing its inability to pay
its debts as they become due.
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11.4 Sublessee shall file a petition under any section or chapter of
the Federal Bankruptcy Code, or under any similar law or statute
of the United States, or any state thereof, be adjudged bankrupt
or insolvent in proceedings filed against Sublessee thereunder,
or a petition or answer proposing the adjudication of Sublessee
as a bankrupt or its reorganization under any present or future
federal or state bankruptcy or similar law shall be filed in any
court, and such petition or answer shall not be discharged or
denied within sixty (60) days after filing thereof.
11.5 A receiver or trustee shall be appointed for all or
substantially all the assets of Sublessee or of the Premises or
any of Sublessee's property located thereon in any proceeding
brought by Sublessee, or any Receiver or Trustee shall be
appointed any proceeding brought against Sublessee and shall not
be discharged within sixty (60) days after such appointment, or
if Sublessee shall consent to or acquiesce to such appointment.
11.6 Sublessee shall abandon the Premises. As used herein,
abandonment is defined to include, without limitation, any
absence of Sublessee from the Premises for ten (10) days or
longer.
12. REMEDIES. If an Event of Default shall have occurred, Sublessor shall
have the right, in its sole election, then or at any time thereafter, to
pursue any one or more of the following remedies:
12.1 Terminate this Sublease, in which event Sublessee shall
immediately surrender the Premises to Sublessor, but if
Sublessee shall fail to do so, Sublessor may without notice and
without prejudice to any other remedy Sublessor may have, enter
upon and take possession of the Premises and expel or remove
Sublessee and its effects and any other person who may be
occupying the Premises without being liable to prosecution or
any claim for damages therefor; and Sublessee agrees to
indemnify Sublessor for all loss and damages which Sublessor may
suffer by reason of such termination, whether through inability
to relet the Premises or otherwise, including any loss of rental
for the remainder of the Term of the Sublease.
12.2 Declare the entire amount of Rent and Additional Rent which
would have become due and payable during the remainder of the
Term of this Sublease to be due and payable immediately, in
which event Sublessee agrees to pay the same to Sublessor at
once, it being agreed that such payment shall constitute payment
in advance of the Rent and Additional Rent stipulated for the
remainder of the Sublease Term. The acceptance by Sublessor of
the payment of such rent shall not constitute a waiver of any
default then existing or thereafter occurring hereunder.
12.3 Enter upon and take possession of the Premises as the agent of
Sublessee without terminating this Sublease and without being
liable to prosecution or any claim for damages therefor, and
Sublessor may relet the Premises as the agent of Sublessee and
receive the rent therefor, in which event Sublessee shall pay to
Sublessor on demand the cost of renovating, repairing and
altering the Premises for a new subtenant or subtenants and any
deficiency that may arise by reasons of such reletting;
provided, however, that Sublessor shall have no duty to relet
the Premises and that the failure of Sublessor to relet the
Premises shall not release or affect Sublessee's liability for
Rent, Additional Rent or for damages.
12.4 Sublessor may do whatever Sublessee is obligated to do by the
provisions of this Sublease and may enter the Premises, without
being liable to prosecution or any claim for damages thereof, in
order to accomplish this purpose. Sublessee agrees to reimburse
Sublessor immediately upon demand for any reasonable expenses
which Sublessor may incur in thus effecting compliance with this
Sublease on behalf of Sublessee, and Sublessee further agrees
that Sublessor shall not be liable for damages resulting to
Sublessee from such action, whether caused by the negligence of
Sublessor or otherwise.
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Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any
other remedies provided by law or equity.
13. NOTICES. Any notice or document required to be delivered hereunder shall
be in writing, and shall be deemed to be delivered on receipt, if hand
delivered or delivered by courier service, or (whether actually received
or not) upon the date which is two (2) days following the deposit of such
document in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to the parties hereto
at the address of the Premises with respect to the Sublessee or the
address set forth below with respect to the Sublessor, or at such other
address as any party may hereafter specify by written notice to the
other.
Sublessor's address:
Xxxxxxx Moving and Storage, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
14. HOLDING OVER. If Sublessee continues to hold the Premises after this
Sublease terminates, whether by lapse of time or otherwise, such holding
over shall, unless otherwise agreed by Sublessor in writing, constitute
and be construed as a tenancy-at-will at a monthly rental equal to twice
the Rent and Additional Rent provided for herein, and upon and subject to
the terms and provisions set forth herein.
15. SECURITY DEPOSIT. Contemporaneously with the execution hereof, Sublessee
shall pay to Sublessor the sum of $29,195.82 as a security deposit to
secure Sublessee's obligations hereunder. Sublessor shall hold such
security deposit without any obligation to pay any interest thereon, and
any interest which may be earned thereon shall be the sole property of
the Sublessor. It is expressly understood that said security deposit
shall not be considered an advance payment of rental or a measure of
Sublessor's damages in case of default by Sublessee hereunder. Sublessor
may commingle said security deposit with Sublessor's other funds and may,
from time to time, without prejudice to any other remedy provided for
herein or at law, use the security deposit to the extent necessary to
make good any arrearages of Rent or to satisfy any covenant or obligation
of Sublessee hereunder. Following any such application of the security
deposit, Sublessee shall pay to Sublessor, on demand, the amount so
applied in order to restore the security deposit to its original amount.
If Sublessee is not in default at the termination of this Sublease, the
balance of the security deposit remaining after any such application
shall be returned by Sublessor to Sublessee at Sublessee's address as
shown on the books and records of Sublessor. If Sublessor transfers its
interest in the Premises during the Term of this Sublease, Sublessor may
assign the security deposit to the transferee and, thereafter, shall have
no further liability for the return of such security deposit.
16. SUBLESSEE IMPROVEMENTS. Sublessee shall not make or allow to be made any
alterations or physical in or to the leased premises without first
obtaining the written consent of Sublessor. Any alterations, physical
additions or improvements to the leased premises made by Sublessee shall
at once become the property of Sublessor and shall be surrendered to
Sublessor upon the termination of this Sublease: provided, however,
Sublessor, at its option may require Sublessee to remove any physical
additions and/or repair any alterations in order to restore the leased
premises to the condition existing at the time Sublessee took possession.
All costs of removal and/or alterations to be borne by Sublessee. This
clause shall not apply to moveable equipment or furniture owned by
Sublessee, which may be removed by Sublessee at the end of the term of
this Lease if Sublessee is not then in default and if such equipment and
furniture are not then subject to any rights, liens and interest of
Sublessor. (See Exhibit B) Sublessee shall also adhere to all provisions
in addendum "A", "Construction by Lessee" (See Exhibit C).
17. MISCELLANEOUS.
17.1 SEVERABILITY. Each and every covenant and agreement contained
in this Sublease is, and shall be construed to be, a separate
and independent
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covenant and agreement. If any term or subdivision of this
Sublease, or the application thereof to any person or
circumstance, shall to any extent be invalid and unenforceable,
the remainder of this Sublease shall remain in full force and
effect and not be affected thereby.
17.2 ENTIRE AGREEMENT. This Sublease sets forth the entire agreement
between the Sublessee and the Sublessor, superseding any prior
agreements among such parties, and no amendment or modification
of this Sublease shall be binding or valid unless set forth in
writing and executed by both parties hereto.
17.3 PARAGRAPH HEADINGS. Paragraph headings contained in this
Sublease are for convenience only and shall in no way enlarge or
limit the scope of any of the various paragraphs and provisions
hereof.
17.4 BINDING EFFECT. All the covenants, agreements, terms and
conditions to be observed and performed by the parties hereto
shall be applicable and binding upon the respective heirs,
personal representatives, successors and permitted assigns.
17.5 SUBLESSOR STILL LIABLE. Notwithstanding anything to the
contrary contained in this Sublease, Sublessor shall in all
events remain fully and completely liable under the Lease and
shall be relieved of no liability whatsoever hereby.
17.6 GOVERNING LAW. This Sublease shall be construed under and in
accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, this Sublease is executed effective as of August 1, 1995.
SUBLESSOR SUBLESSEE
A-1 Xxxxxxx Relocation Systems, Inc. Calidad Foods, Inc.
By: /s/ XXXXX XXXXXXX By: /s/ XXX XXXXXX
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Its: President Its: Chief Financial Officer
Landlord, Greenbriar Holdings Dallas, Ltd., a Texas limited partnership,
executes this Sublease for the sole purpose of evidencing its consent to this
Sublease and the terms contained herein. Nothing contained in this consent
shall operate as a ratification by the Landlord of any of the provisions of the
Sublease or as a representation or warranty by Landlord of any such provisions,
and Landlord shall not be bound or estopped in any way by the provisions of the
Sublease. Neither the Sublease nor this consent shall release or discharge
Sublessor (in its capacity as Tenant) from any liability under the lease, and
Sublessor shall remain liable and responsible to Landlord for the full
performance and observance of all of the provisions, covenants and conditions
set forth in the Lease on the part of Sublessor (in its capacity as Tenant) to
be performed and observed.
LANDLORD
GREENBRIAR HOLDINGS DALLAS, LTD.
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By: HIGHFIELD REALTY CAPITAL, INC.
By: /s/ NOT LEGIBLE
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Its: President
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