SUB-LEASE AGREEMENT
Exhibit 10.7
SUB-LEASE
AGREEMENT
THE
STATE OF TEXAS
COUNTY
OF BEXAR
This
Sub-lease Agreement made and entered into by and between KBK, Inc.
hereinafter referred to as "Sub-Lessor") and Xxxxxxx Xxxxxxx,
Inc. (hereinafter referred to as
"Sub-Tenant"):
W
I T N E S S E T H:
1. Premises. In
consideration of the obligation of Sub-Tenant to pay rent as herein provided,
and in consideration of the other terms, provisions and covenants hereof,
Sub-Lessor hereby demises and leases to Sub-Tenant, and Sub-Tenant hereby takes
from Sub-Lessor certain premises situated within the County of Bexar, State
of
Texas, being approximately 200 square feet of space
at 000 Xxxxxxxxx Xxxx., Xxxxx 0000, Xxx Xxxxxxx,
XX 00000, Bexar County, Texas, more particularly described in Exhibit
"A" attached hereto and made a part hereof for all purposes, together with
all
rights, privileges, easements, appurtenances and amenities belonging to or
in
any way pertaining to the said premises including all improvements erected
thereon, (the "Premises
2. Term. TO
HAVE AND TO HOLD the same for a term commencing on January 1,
2007 and ending on December 31, 2007. Sub-Tenant
acknowledges that it has inspected the Premises and accepts the Premises, and
the buildings and improvements thereon, in their present condition as suitable
for the purpose for which the Premises are leased and further acknowledges
that
no representations as to the repair of the Premises nor promises to alter,
remodel or improve the Premises have been made by Sub-Lessor except as set
out
in Exhibit "B" attached hereto. If this Lease is executed before the
Premises become vacant or otherwise available and ready for occupancy by
Sub-Tenant, including the completion of the Sub-Lessor's work required under
Exhibit "B" attached hereto, or if any present Sub-Tenant or occupant o f the
Premises holds over, and Sub-Lessor cannot acquire and deliver to Sub-Tenant
possession of the Premises prior to the date above recited as the Commencement
Date of this Lease, Sub-Lessor shall not be deemed to be in default hereunder
or
responsible for any claims, damages or liabilities in connection
therewith. Sub-Tenant agrees to accept possession of the Premises at
such time as Sub-Lessor is able to tender the same to Sub-Tenant, in which
event
the date of tender of the Premises by the Sub-Lessor to Sub-Tenant shall be
the
Commencement Date unless the delay in tender is due to Sub-Tenant's actions,
in
which event the Commencement Date shall not be altered. Sub-Lessor
hereby waives payment of rent covering any period prior to the Sub-Lessor's
tender of the Premises to Sub-Tenant. The expiration date of this
Lease shall not be affected by any delay in the commencement of this
Lease. Sub-Lessor shall tender the Premises to Sub-Tenant and
Sub-Tenant shall accept the Premises when substantially
complete. Sub-Tenant's failure to occupy the Premises when tendered
by Sub-Lessor shall not delay the commencement of this Lease.
3. Rent. Sub-Tenant
agrees to pay to Sub-Lessor rent, without deduction or set off, for the entire
term hereof for said Premises at the described in Exhibit "C" attached hereto.
One such monthly installment representing the first month's rent shall be due
and payable on execution of this Lease and a like monthly installment shall
be
due and payable without demand on or before the first day of each calendar
month
during the term of this Lease; provided that if this Lease shall commence on
a
date other than the first day of a calendar month, the monthly rental for such
month shall be prorated on a daily basis. Sub-Lessor shall refund to
Sub-Tenant, any excess rental paid for the month in which this Lease commences
or apply such excess rent to succeeding months' rental.
Unless
otherwise specifically allowed by the hereinafter enumerated terms of this
Lease, the Sub-Tenant shall pay the rent and other sums payable hereunder
without notice or demand and without regard to any counter claim, right of
set
off, deduction or defense Sub-Tenant may have against Sub-Lessor, and without
abatement, suspension, deferment, diminution or reduction and the obligations
of
Sub-Tenant hereunder shall not be in any way affected or reduced by any
restriction, prevention or curtailment of or interference with any use of the
Premises, or any part thereof, for any reason whatsoever.
4. Security
Deposit. Sub-Tenant agrees to deposit with Sub-Lessor on the date
hereof the sum of $0.00, which sum shall be held by Sub-Lessor,
without obligation for interest, as security for the performance of Sub-Tenant's
covenants and obligations under this Lease, it being expressly understood and
agreed that such deposit is not an advance rental deposit nor a measure of
Sub-Lessor's damages in case of Sub-Tenant's default. Upon the
occurrence of any event of default by Sub-Tenant, Sub-Lessor may, from time
to
time, without prejudice to any other remedy provided herein or provided by
law,
use such fund to the extent necessary to make good any arrears of rent and
any
other damage, injury, expense or liability caused by such event of default;
and
Sub-Tenant shall pay to Sub-Lessor on demand the amount so applied in order
to
restore the security deposit to its original amount. If Sub-Tenant is
not then in default hereunder, any remaining balance of such deposit shall
be
returned by Sub-Lessor to Sub-Tenant upon termination of this
Lease.
5.
Use. The demised premises shall be used only for office
and warehouse, and for such other lawful purposes as may be incidental
thereto. Sub-Tenant will not permit the Premises to be used for any
purpose which would render the insurance thereon void or the insurance risk
more
hazardous.
6. Sub-Lessor's
Repairs. Sub-Lessor shall, at its expense, maintain only the
roof, heating, air conditioning, plumbing, foundation and the structural
soundness of the exterior walls of the building in good repair, reasonable
wear
and tear excepted. The Sub-Lessor expressly reserves the right to use
all exterior walls and the roof of the building of which the Premises are a
part. Sub-Tenant shall repair and pay for any damage caused by the
negligence of Sub-Tenant, or Sub-Tenant's employees, agents or invitees, or
caused by Sub-Tenant's default hereunder. The term "walls" as used
herein shall not include windows, glass and plate glass, stairways, doors or
special store fronts. Sub-Tenant shall immediately give Sub-Lessor
written notice of defect or need for repairs, after which Sub-Lessor shall
have
a reasonable opportunity to repair same or cure such
defect. Sub-Lessor's liability hereunder shall be limited to the cost
of such repairs or curing such defect. Sub-Lessor shall not be liable
for damage to Sub-Tenant's improvements, inventory and equipment within the
Premises. In the event the Premises have air conditioning and heating
systems, or fire sprinkling systems installed therein on the date of this Lease,
then Sub-Lessor represents that on the Commencement Date of this Lease such
air
conditioning and heating systems and sprinkling systems shall be in good
operating condition; provided, however, that during the term of this Lease,
Sub-Tenant shall, at its own cost and expense, maintain such system in good
operating condition, shall make all necessary repairs and replacements and
upon
termination of this Lease, shall deliver such system to Sub-Lessor in good
operating condition.
8. Alterations. Sub-Tenant
shall not make any alterations, additions or improvements to the Premises
without the prior written consent of Sub-Lessor. Sub-Tenant may,
without the consent of Sub-Lessor, but at its own costs and expense and in
a
good workmanlike manner make such minor alterations, additions or improvements
or erect, remove or alter such partitions, or erect such shelves, bins,
machinery and trade fixtures as Sub-Tenant may deem advisable, without altering
the basic character of the building or improvements and without overloading
or
damaging such building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations, and other
requirements. At the termination
of this Lease, Sub-Tenant shall, if Sub-Lessor so elects, remove all
alterations, additions, improvements and partitions erected by Sub-Tenant and
restore the Premises to their original condition; otherwise such improvements
shall be delivered up to the Sub-Lessor with the Premises. All
shelves, bins, machinery and trade fixtures installed by Sub-Tenant may be
removed by Sub-Tenant at the termination of this Lease if Sub-Tenant so elects,
and shall be removed if required by Sub-Lessor. All such removals and
restoration shall be accomplished in a good workmanlike manner so as not to
damage the primary structure or structural qualities of the buildings and other
improvements situated on the Premises. All roof penetrations and roof
alterations of any kind which are approved by Sub-Lessor, shall be performed
by
the Sub-Lessor's roofing contractor at Sub-Tenant's cost and
expense.
Prior
to
making any alterations or repairs to the Premises which will involve the
alteration or removal of plumbing, electrical wiring, air conditioning, heating
or ventilating systems, or the fire sprinkling systems, Sub-Tenant shall furnish
Sub-Lessor with a set of the plans and specifications for the alterations or
repairs and shall not commence any such work without Sub-Lessor's express
written approval.
9.
Signs. Sub-Tenant may not install signs upon the
Premises, the exterior of any buildings of which the Premises are a part, or
within the project without the prior written approval of
Sub-Lessor. All signs, when approved by Sub-Lessor, must also comply
with any applicable governmental laws, ordinances, regulations and other
requirements. All signs shall conform to the Sub-Lessor's sign
criteria for the project of which the Premises are a part. Sub-Tenant
shall remove all such signs at the termination of this Lease. Such
installations and removals shall be made in such manner as to avoid injury
or
defacement of the building and other improvements.
10. Inspection. Sub-Lessor
and Sub-Lessor's agents and representatives shall have the right to enter and
inspect the Premises at any time during reasonable business hours, for the
purpose of ascertaining the condition of the Premises or in order to make such
repairs as may be required to be made by Sub-Lessor under the terms of this
Lease. During the period that is six (6) months prior to the end of
the term hereof, Sub-Lessor and Sub-Lessor's agents and representatives shall
have the right to enter the Premises at any time during reasonable business
hours for the purpose of showing the Premises and shall have the right to erect
on the Premises a suitable sign indicating the Premises are for rent or
sale.
11. Utilities. Sub-Lessor
agrees to provide at its cost water, electricity, gas and telephone service
connections into the Premises. Sub-Lessor shall in no event be liable
for any interruption or failure of utility services on the
Premises.
12. Assignment
and Subletting. Sub-Tenant shall not have the right to
assign this Lease or to sublet the whole or any part of the Premises without
prior written consent of Sub-Lessor.
13. Duty
to Prevent Forfeiture of Master Lease. Sub-Lessor shall
neither do nor permit anything to be done which would cause the Lease between
__________________, as Landlord, and Sub-Lessor, as Tenant, dated
__________________ (the “Master Lease”) to be terminated or forfeited by reason
of any right of termination or forfeiture reserved or vested in Landlord under
the Master Lease. Sub-Lessor shall indemnify and hold Sub-Tenant
harmless from and against all losses and claims whatsoever by reason of any
such
breach or default on the part of Sub-Lessor by reason of which the Master Lease
may be terminated or forfeited.
14. Services
by the Sub-Lessor. Sub-Lessor shall furnish the Sub-Tenant,
while occupying the Premises, electricity, water/sewer, exterior
painting, exterior pest control, landscaping, lawn sprinkler
repairs and maintenance, parking lot clearing, cold water at those
points of supply provided for the general use of the Sub-Tenants in the
building, exterior security lights as determined necessary by Sub-Lessor and
exterior janitorial service for the building so that the parking lot, sidewalks,
and landscaping of the project are maintained in a clean, neat and orderly
fashion
15. Fire
and Casualty Damage.
(a) If
the building of which the Premises are a part should be damaged or destroyed
by
fire, tornado, or other casualty, Sub-Tenant shall give immediate written notice
thereof to Sub-Lessor.
(b) If
the building of which the Premises are a part should be totally destroyed by
fire, tornado or other casualty, or if it should be so damaged that rebuilding
or repairs cannot be completed within ninety (90) days after the date
upon which Sub-Lessor is notified by Sub-Tenant of such damage, this Lease
shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
(c) If
the building of which the Premises are a part should be damaged by fire, tornado
or other casualty but only to such extent that rebuilding or repairs can be
completed within ninety (90) days after the date upon which
Sub-Lessor is notified by Sub-Tenant of such damage, this Lease shall not
terminate, but Sub-Lessor shall at its sole cost and expense proceed with
reasonable diligence to rebuild and repair such building, to substantially
return to the condition in which it existed prior to such damage, except that
Sub-Lessor shall not be required to rebuild, repair or replace any part of
the
partitions within the Premises, fixtures and other improvements which may have
been placed on the Premises by Sub-Tenant and in no event shall the Sub-Lessor
be required to spend more than the insurance proceeds actually received for
the
repairs and restoration. If the Premises are un Sub-Tenantable in
whole or in part following such damage, the rent payable hereunder during the
period in which they are un Sub-Tenantable shall be reduced
ratably. In the event that Sub-Lessor should fail to complete such
repairs and rebuilding within two hundred ten (210) days after the date upon
which Sub-Lessor is notified by Sub-Tenant of such damage, Sub-Tenant may at
its
option terminate this Lease by delivering written notice of termination to
Sub-Lessor as Sub-Tenant's exclusive remedy, whereupon all rights and
obligations hereunder shall cease and terminate.
(d) Notwithstanding
anything herein to the contrary, in the event the holder of any indebtedness
secured by a mortgage or deed of trust covering the building of which the
Premises are a part requires that the insurance proceeds be applied to such
indebtedness, then Sub-Lessor shall have the right to terminate this Lease
by
delivering written notice of termination to Sub-Tenant, whereupon all rights
and
obligations hereunder shall cease and terminate.
(e) Any
insurance, other than that required of Sub-Tenant under Section 21 hereto which
may be carried by Sub-Lessor or Sub-Tenant against loss or damage to the
building of which the Premises are a part and other improvements or the contents
situated on the Premises, shall be for the sole benefit of the party carrying
such insurance and under its sole control.
(f) Sub-Lessor
and Sub-Tenant each hereby releases the other from any and all liability or
responsibility to the other or anyone claiming through or under them by way
of
subrogation or otherwise for any loss or damage to property caused by fire
or
any of the extended coverage casualties covered by the insurance maintained
hereunder, even if such fire or other casualty shall have been caused by the
fault or negligence of the other party, or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during
such times as the releasor's policies of insurance covering such a loss shall
contain a clause or endorsement to the effect that any release shall not
adversely affect or impair said policies or prejudice the right of the releasor
to recover thereunder.
16. Liability. Sub-Lessor
shall not be liable to Sub-Tenant or Sub-Tenant's employees, agents, patrons
or
visitors, or to any other person whomsoever for any injury to person or damage
to property on or about the Premises, caused by the negligence or misconduct
of
Sub-Tenant, its agents, servants or employees, or of any other person entering
upon the Premises under express or implied invitation of Sub-Tenant, or caused
by the buildings and improvements located on the Premises becoming out of
repair, or caused by leakage of gas, oil, water or steam or by electricity
emanating from the Premises, drain or sewer stoppages or backups, or due to
any
cause whatsoever, and Sub-Tenant agrees to indemnify Sub-Lessor and hold it
harmless from any loss, expense or claims, including attorneys' fees arising
out
of any such damage or injury; except that any injury to person or damage to
property caused by the negligence of Sub-Lessor or by the failure of Sub-Lessor
to repair and maintain that part of the Premises which Sub-Lessor is obligated
to repair and maintain, if any, after the receipt of written notice from
Sub-Tenant of needed repairs or of defects shall be the liability of Sub-Lessor
and not of Sub-Tenant, and Sub-Lessor agrees to indemnify Sub-Tenant and hold
it
harmless from any and all loss, expense or claims, including attorneys' fees,
arising out of such damage or injury. Sub-Tenant shall procure and
maintain throughout the term of this Lease a policy or policies of insurance
at
its sole cost and expense, insuring both Sub-Lessor and Sub-Tenant against
all
claims, demands or actions arising out of or in connection with Sub-Tenant's
use
or occupancy of the Premises, or by the condition of the Premises.
17. Subtenant
Indemnification. Sub-Lessor shall indemnify and hold
harmless Sub-Tenant from and against any and all liabilities, demands, claims,
injury, loss, damage, expenses or costs (collectively, “Claims”) arising from
Sub-Lessor’s use of the Project, or from the conduct of Sub-Lessor’s business or
from any activity, work or things done, permitted or suffered by Sub-Lessor
in
or about the Project. Sub-Lessor shall further indemnify and hold
harmless Sub-Tenant from and against any and all claims arising from any breach
or default in the performance of any obligation on Sub-Lessor’s part to be
performed under the terms of this Sub-Lease, or arising from any negligence
of
the Sub-Lessor, or any of Sub-Lessor’s agents, contractors or employees, and
from and against all costs, attorney’s fees, expenses and liabilities incurred
in the defense of any such claim or any action or proceeding brought forth
thereon.
18. Condemnation.
(a) If
the whole or any substantial part (25% or more of the total area) of the project
or any substantial part of the Premises should be taken for any public or
quasi-public use under governmental law, ordinance or regulation, or by right
of
eminent domain, or by private purchase in lieu thereof, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective when the physical taking of said Premises shall
occur.
(b) If
less than a substantial part of the real property of which the Premises are
a
part or the Premises themselves shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, this Lease shall not terminate,
but the rent payable hereunder during the unexpired portion of this Lease shall
be reduced ratably, such reduction to be based upon the adverse impact of such
taking of Sub-Tenant's Premises. If the taking is for less than 5% of
the total area of the real property or for the construction of utilities and
similar public purposes which do not unreasonably interfere with the
Sub-Tenant's use of the Premises, then there shall be no abatement or reduction
of the rent.
(c) In the event of any such taking or private purchase in lieu thereof,
Sub-Lessor and Sub-Tenant shall each be entitled to receive and retain such
separate awards and/or portion of lump sum awards as may be allocated to their
respective interest in any condemnation proceedings, Sub-Lessor being entitled
to the award for the building and improvements and the Sub-Tenant's award being
limited to the value of Sub-Tenant's personal property and leasehold
improvements paid for by Sub-Tenant which are taken.
19. Holding
Over. Should Sub-Tenant, or any of its successors in
interest, hold over the Premises, or any part hereof, after the expiration
of
the term of this Lease, unless otherwise agreed in writing, such holding over
shall constitute and be construed as tenancy from month to month only, at a
rental equal to the rental payable for the last month of the term of this Lease
plus twenty per cent (20%) of such amount. The inclusion
of the preceding sentence shall not be construed as Sub-Lessor's permission
for
Sub-Tenant to hold over.
20. Quiet
Enjoyment. Sub-Lessor covenants that it now has, or will
acquire before Sub-Tenant takes possession of the Premises, good title to the
Premises, free and clear of all liens and encumbrances, excepting only the
lien
for current taxes not yet due, such mortgage or mortgages as are permitted
by
the terms of this Lease, zoning ordinances and other building and fire
ordinances and governmental regulations relating to the use of such property,
and easements, restrictions and other conditions of record. In the
event this Lease is a sublease, then Sub-Tenant agrees to take the Premises
subject to the provision of the prior leases. Sub-Lessor represents
and warrants that it has full right and authority to enter into this Lease
and
that Sub-Tenant, upon paying the rental herein set forth and performing its
other covenants and agreements herein set forth, shall peacefully and quietly
have, hold and enjoy the Premises for the term hereof without hindrance or
molestation from Sub-Lessor, subject to the terms and provision of this
Lease.
21. Events
of Default. The following events shall be deemed to be
events of default by Sub-Tenant under this Lease:
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(a)
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Sub-Tenant
shall fail to pay any installment of the rent hereby reserved when
due,
and such failure shall continue for a period of thirty
(30) days from the date such installment was
due;
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(b)
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Sub-Tenant
shall become insolvent, or shall make a transfer in fraud of creditors,
or
shall make an assignment for the benefit of
creditors;
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(c)
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Sub-Tenant
shall file a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of
the
United States or any State thereof; or Sub-Tenant shall be adjudged
bankrupt or insolvent in proceedings filed against Sub-Tenant
thereunder;
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(d)
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A
receiver or trustee shall be appointed for all or substantially all
of the
assets of Sub-Tenant;
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(e)
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Sub-Tenant
shall desert or vacate any substantial portion of the
Premises;
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(f)
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Sub-Tenant
shall fail to comply with any term, provision or covenant of this
Lease
(other than the foregoing in this Section 26), and shall not cure
such
failure within thirty (30) days after written notice thereof to
Sub-Tenant.
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Notwithstanding
the terms of paragraph (f) above, if Sub-Lessor shall give Sub-Tenant written
notice of a default under this Lease twice in any six-month period, then the
Sub-Lessor shall no longer be required to extend a 30-day notice and
cure period to the Sub-Tenant under Section 20(f).
22.
Remedies. Upon the occurrence of any of such events
of default described in Section 26 hereof, Sub-Lessor shall have the option
to
pursue any one or more of the following remedies without any notice or demand
whatsoever:
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(g)
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Terminate
this Lease, in which event Sub-Tenant shall immediately surrender
the
Premises to Sub-Lessor, and if Sub-Tenant fails to do so, Sub-Lessor
may,
without prejudice to any other remedy which it may have for possession
or
arrearages in rent, enter upon and take possession of the Premises
and
expel or remove Sub-Tenant and any other person who may be occupying
such
Premises or any part thereof, by force if necessary, without being
liable
for prosecution or any claim of damages therefore; and Sub-Tenant
agrees
to pay to Sub-Lessor on demand the amount of all loss or damage which
Sub-Lessor may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise,
and
including expenses incurred in reletting the premises and any remodeling
which is done in connection
therewith.
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(h)
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Enter
upon and take possession of the Premises and expel or remove Sub-Tenant
and any other person who may be occupying such Premises or any part
thereof, by force if necessary, without being liable for prosecution
or
any claim for damages therefore, and relet the Premises and receive
the
rent therefore; and Sub-Tenant agrees to pay to the Sub-Lessor on
demand
any deficiency that may arise by reason of such
reletting.
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(i)
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Enter
upon the Premises by force if necessary without being liable for
prosecution or any claim for damages therefor, and do whatever Sub-Tenant
is obligated to do under the terms of this Lease; and Sub-Tenant
agrees to
reimburse Sub-Lessor on demand for any expenses which Sub-Lessor
may incur
in effecting compliance with Sub-Tenant's obligations under this
Lease,
and Sub-Tenant further agrees that Sub-Lessor shall not be liable
for any
damages resulting to the Sub-Tenant from such action, whether caused
by
the negligence of Sub-Lessor or
otherwise.
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In
the
event Sub-Tenant fails to pay any installment of rent hereunder within thirty
(30) days after such installment shall pay to Sub-Lessor on demand, a
late charge of $50 for the added expenses incurred by Sub-Lessor in handling
delinquent payments, and the failure to pay such amount within ten (10) days
after demand, therefore shall be an event of default hereunder. The
provision for such late charge shall be in addition to all of Sub-Lessor's
other
rights and remedies hereunder or at law and shall not be construed as liquidated
damages or as limiting Sub-Lessor's remedies in any manner.
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, nor shall
pursuit of any remedy herein provided constitute a forfeiture or waiver of
any
rent due to Sub-Lessor hereunder or of any damages occurring to Sub-Lessor
by
reason of the violation of any of the terms, provisions and covenants herein
contained. No waiver by Sub-Lessor of any violation or breach of any
of the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of any of
the
terms, provisions and covenants herein contained. Sub-Lessor's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as a waiver of such
default, unless Sub-Lessor so notifies Sub-Tenant in
writing. Forbearance by Sub-Lessor to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default. If, on account of
any breach or default by Sub-Tenant in Sub-Tenant's obligations under the terms
and conditions of this Lease, it shall become necessary or appropriate for
the
Sub-Lessor to employ or consult with an attorney concerning or to enforce or
defend any of Sub-Lessor's rights or remedies hereunder, Sub-Tenant agrees
to
pay any reasonable attorney's fees. No act or thing done by the
Sub-Lessor or Sub-Lessor's agents during the term hereby granted shall be deemed
an acceptance of the surrender of the Premises, and no agreement to accept
a
surrender of said Premises shall be valid unless in writing signed by
Sub-Lessor. The receipt by Sub-Lessor of rent with knowledge of the
breach of any covenant or other provision contained in this Lease shall not
be
deemed or construed to constitute a waiver of any other violation or breach
of
any of the terms, provisions and covenants contained
herein.
23. Mortgages. Sub-Tenant
accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust
and assignments of leases or rents now or at any time hereafter constituting
a
lien or charge upon the Premises or the improvements situated
thereon. Sub-Tenant shall at any time hereafter on demand execute any
instruments, releases or other documents which may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such mortgage. With respect to any mortgage(s) and/or deed(s) of
trust at any time hereafter created which constitute a lien or charge upon
the
leased Premises or the improvements situated thereon, Sub-Lessor, at its sole
option, shall have the right to waive the applicability of this Section so
that
this Lease would not be subject and subordinate to such mortgage(s) or the
deed(s) of trust. Sub-Tenant agrees to furnish Sub-Lessor or
Sub-Lessor's mortgagees upon demand with estoppel certificates indicating that
the Lease is in full force and effect, that no defaults are then existing
thereunder, the date to which rental is paid under this Lease, the amount of
any
security deposits and prepaid rentals, if any, and such other information as
the
Sub-Lessor or its lender may reasonably request. Sub-Tenant further
agrees to execute such attornment and non-disturbance agreements as the
mortgagee or lender may request.
24. Mechanic's
Liens. Sub-Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Sub-Lessor in the
Premises or to charge the rentals payable hereunder for any claim in favor
of
any person dealing with Sub-Tenant, including those who may furnish materials
or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Sub-Tenant by this instrument. Sub-Tenant covenants and
agrees that it will pay or cause to be paid all sums legally due and payable
by
it on account of any labor performed or materials furnished in connection with
any work performed on the Premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the Premises or the
improvements thereon and that it will save and hold Sub-Lessor harmless from
any
and all loss, cost or expense based on or arising out of asserted claims or
liens against the leasehold estate or against the rights, titles and interest
of
the Sub-Lessor in the Premises or under the terms of this Lease.
25. Nothing
contained in this Lease shall constitute the consent or the request of the
Sub-Lessor, expressed or implied, for the performance of any labor or the
furnishing of any materials or other property in respect to the Premises or
any
part thereof, nor is the Sub-Tenant given any authority to contract for or
commit the renting of any services or the furnishing of any materials or other
properties so as to permit the making of any claims against the
Sub-Lessor.
26. Laws,
Rules and Regulations. Sub-Tenant agrees to comply promptly
with all laws, rules and
orders of the federal, state and municipal governments and all other departments
applicable to the Premises and to comply promptly with the requirements of
the
Board of Fire Underwriters and to comply with all reasonable rules and
regulations governing the operation and use of the Premises or Project (and,
if
applicable, the common areas), which are imposed by
Sub-Lessor.
27. Notices. Each
provision of this instrument or of any applicable governmental laws, ordinances,
regulations and other requirements with reference to the sending, mailing or
delivery of any notice or the making of any payment by Sub-Lessor to Sub-Tenant
or with reference to the sending, mailing or delivery of any notice or the
making of any payment by Sub-Tenant to Sub-Lessor shall be deemed to be complied
with when and if the following steps are taken:
28. All
rent and other payments required to be made by Sub-Tenant to Sub-Lessor
hereunder shall be payable to Sub-Lessor at the address hereinbelow set forth
or
at such other address as Sub-Lessor may specify from time to time by written
notice delivered in accordance herewith.
29. All
payments required to be made by Sub-Lessor to Sub-Tenant hereunder shall be
payable to Sub-Tenant at the address hereinbelow set forth, or at such other
address within the continental United States as Sub-Tenant may specify from
time
to time by written notice delivered in accordance herewith.
Any
notice or document required or permitted to be delivered hereunder shall be
deemed to be delivered whether actually received or not when deposited in the
United States Mail, postage prepaid, Certified or Registered Mail, addressed
to
the parties hereto at the respective addresses set forth below, or at such
address as they have theretofore specified by written notice delivered in
accordance with:
If
to
Sub-Lessor: 000
Xxxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If
to
Sub-Tenant: 000
Xxxxxxxxx Xxxx., Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
If
and
when included within the term "Sub-Lessor" as used in this instrument, there
is
more than one person, firm or corporation, all shall jointly arrange among
themselves for their joint execution of such a notice specifying some individual
at some specific address for the receipt of notices and payments to Sub-Lessor;
if and when included within the term "Sub-Tenant", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address within the continental United States for
the
receipt of notices and payments to Sub-Tenant. All parties included
within the terms "Sub-Lessor" and "Sub-Tenant" respectively, shall be bound
by
notices in accordance with the provisions of this Section to the same effect
as
if each had received such notice. If requested in writing by
Sub-Lessor's mortgagee, Sub-Tenant agrees to furnish the mortgagee with copies
of all notices to Sub-Lessor.
30. Force
Majeure. In the event the Sub-Lessor or Sub-Tenant is
delayed in the completion of any construction or repair work required under
the
terms of this Lease Agreement by the negligence or acts of the other party
or by
labor disputes, fire, unusual delay in transportation, unavoidable casualties
or
other causes beyond the parties control, then the time period for completing
the
construction or repair work shall be extended for a reasonable period of time
to
compensate for the time lost due to events beyond
the reasonable control of the party obligated to complete the construction
and
repair work.
31. Miscellaneous.
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(a)
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Words
of any gender used in this Lease shall be held and construed to include
any other gender, and words in the singular number shall be held
to
include the plural, unless the context otherwise
requires.
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(b)
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The
terms, provisions and covenants and conditions contained in this
Lease
shall apply to, inure to the benefit of, and be binding upon, the
parties
hereto and upon their respective heirs, legal representatives, successors
and permitted assigns, except as otherwise herein expressly
provided.
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(c)
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The
captions are inserted in this Lease for convenience only and in no
way
define, limit, or describe the scope or intent of this Lease, or
any
provision hereof, nor in any way affect the interpretation of this
Lease.
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(d)
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Sub-Tenant
acknowledges receipt of copies of the restrictions on the use and
development of the Premises and agrees to comply with all of the
terms and
conditions of such restrictions.
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(e)
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This
Lease sets forth the entire agreement between the parties as of the
date
hereof with respect to the Premises and may not be altered, changed
or
amended except by an instrument in writing signed by Sub-Lessor and
Sub-Tenant.
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(f)
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If
any term or provision of this Lease or any application thereof shall
be
invalid or unenforceable, the remainder of this Lease and any other
application of such term or provisions shall not be affected
thereby.
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(g)
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Sub-Lessor,
at its option, may maintain all tax, insurance and maintenance records
on
Sub-Lessor's fiscal year basis rather than on a calendar year basis
and
all references in sections of this Lease pertaining to such matters
which
refer to "calendar year" shall be changed to "Sub-Lessor's fiscal
year".
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(h)
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Sub-Lessor
reserves the right to expand the Project of which the Premises is
a part,
in which event Sub-Lessor and Sub-Tenant will make appropriate adjustments
in the Sub-Tenant's share of expenses paid by
Sub-Tenant. Sub-Lessor and Sub-Tenant shall each, upon request,
execute an amendment to their lease setting out the adjusted allocation
of
expenses.
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32. Exhibits
Attached:
Exhibit
"A" -
PREMISES
Exhibit
"B"
- WORK LETTER OF SUB-LESSOR'S IMPROVEMENTS
Exhibit
"C" -
RENTAL RATE SCHEDULE
EXECUTED
THIS day of _______________, 2006.
SUB-LESSOR:
SUB-TENANT:
KBK,
Inc.
Xxxxxxx Xxxxxxx, Inc.
By: /S/
Xxxxxxx
Xxxxxx
By: /S/ Xxxxxx X. Xxxxxx
Name: Xxxxxxx
Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: Vice
President
Its: President
EXHIBIT
"B"
WORK
LETTER OF SUB-LESSOR'S IMPROVEMENTS
NONE
EXHIBIT
"C"
RENTAL
RATE SCHEDULE
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MONTHS
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BASE
RENT MONTHLY
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Initial
Term
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1/01/07–
12/31/07
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$350.00
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