Exhibit 10.21
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT made and entered into as of this 30th day of
March, 2007 by and between MIDNIGHT AUTO FRANCHISE CORP., a Michigan corporation
(hereinafter called "MAFC") and ALL NIGHT AUTO OF NAPERVILLE, INC. (hereinafter
called "XXX").
WITNESSETH:
WHEREAS, on July 15, 2006, MMPK, LLC ("Landlord") entered into a
Lease Agreement with MAFC ("Tenant") (the "Master Lease") with respect to the
premises located at 000 X. Xxxx Xxxx, Xxxxxx, XX 00000 consisting of 9,500
sq.ft. of leasable space (the "Premises"); and
WHEREAS, MAFC is desirous of subleasing the Premises to XXX by
entering into this Sublease and does hereby sublease unto XXX and XXX hereby
subleases from MAFC, upon the terms and conditions hereinafter set forth.
TERMS AND CONDITIONS
1. TERM. The term of Sublease Agreement ("Term") shall commence on
the date hereof and shall continue in force until the date of termination or
expiration (for whatever reason) of the Master Lease, except as otherwise set
forth in Section 7(a) below. Effective as of the date of such termination,
provided XXX has fully performed all of its obligations under this Sublease, XXX
shall have no further liability or obligation with respect to this Sublease
Agreement or the Master Lease.
2. RENT. XXX shall pay Rent to MAFC during the Term as follows:
a. $[*] per month, from the date hereof to July 14, 2011;
b. $[*] per month, from July 15, 2011 through July 14, 2016;
c. $[*] per month from July 15, 2016 through July 14, 2021;
d. $[*] per month from July 15, 2021 through July 14, 2026;
e. $[*] per month from July 15, 2026 through July 14, 2031.
Such Rent is a triple net rent rate.
XXX shall also pay to MAFC Additional Rent (as that term is defined in the
Master Lease) at the same time as Additional Rent is due as set forth in the
Master Lease. The current CAMS for the facility is $[*] and is subject to change
from time time.
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3. COMPLIANCE WITH MASTER LEASE. XXX hereby agrees to accept and be
bound by all terms and conditions imposed upon MAFC as lessee pursuant to the
Master Lease (to the extent applicable) during the Term under and pursuant to
the Master Lease, a true, correct and complete copy of such terms and conditions
Master Lease is attached hereto as Exhibit A and made a part hereof as though
fully set forth herein. MAFC hereby agrees, to the extent possible, to perform
the obligations of the Landlord under the Master Lease as though MAFC has been
named therein as landlord, or, in the alternative, MAFC may permit XXX to
exercise a direct action against Landlord under the Master Lease (MAFC hereby
passing through to XXX, Landlord's obligations under the Master Lease with
respect to the Subleased Premises). As between the parties hereto only, in the
event of a conflict between the terms of the Master Lease and the terms of this
Sublease Agreement, the terms of this Sublease Agreement will control.
4. DELIVERY OF POSSESSION. The Premises shall be delivered in their
"as is", "where is" condition, vacant and broom clean (with the exception of the
Furnishings described in Section 30, below), as of the Commencement Date, and on
such date XXX shall accept the Premises in their existing condition and state of
repair. XXX acknowledges that no representations, statements or warranties,
express or implied, have been made by or on behalf of MAFC in respect to the
Premises' condition, compliance with laws, ordinances, statutes or regulations,
including, but not limited to, the Americans with Disabilities Act of 1991, 42
USC Section 1201 et seq. and all regulations applicable thereto promulgated as
of the date hereof (collectively, "ADA"), or the use or occupation that may be
made thereof, and that MAFC shall not be liable for any defects in the Premises.
Acceptance of the Premises by XXX shall be construed as recognition that the
Premises are in an acceptable state of repair and in sanitary condition.
5. EXTENSION OF TERM. Unless MAFC exercises any purchase option or
right of first refusal in the Master Lease, MAFC shall timely and properly
exercise all existing options to extend the term of the Master Lease.
6. SURVIVAL OR OBLIGATIONS. XXX shall not be responsible for and
assumes no liability for, and MAFC hereby agrees to indemnify, defend and save
XXX harmless from and against, any loss, claim, damage, cause of action,
penalty, expense or fee arising out of or relating to any act or omission of
MAFC, unless such act or omission relates to an act or omission which Landlord
under the Master Lease is obligated to perform (or refrain from taking). Subject
to the foregoing, XXX will indemnify, defend and save MAFC harmless from and
against any claims, demands, and actions arising in connection with ANA's use of
the Premises, or the use by any person occupying said premises during the Term
or by reason of any breach or nonperformance of any covenant herein, or the
violation of any law or regulation by XXX.
7. PURCHASE OR PREMISES. In the event MAFC purchases the Premise at
anytime during the Term, MAFC agrees that the Sublease shall remain in full
force and effect and shall continue for a term equal to the term set forth in
the Master Lease including all option periods thereunder.
8. DEFAULT. In the event XXX fails to perform or observe any of the
covenants contained herein or as contained in the Master Lease as applicable to
the Subleased
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Premises, and does not correct such failure within any notice and/or cure period
as set forth in the Master Lease (less three (3) days), then MAFC may forthwith
terminate or cancel this Sublease Agreement. In the event MAFC fails to timely
perform or observe any of its obligations hereunder, including obligations to be
performed by MAFC pursuant to the Master Lease, if such failure is not cured
within thirty (30) days after XXX delivers written notice to MAFC, then XXX may
forthwith (i) terminate this Sublease Agreement and all of ANA's obligations
hereunder and with respect hereto shall cease, or (ii) seek any available legal
or equitable remedies.
9. QUIET ENJOYMENT. MAFC represents that it has full power and
authority to enter into this Sublease, subject to the consent of the Landlord.
So long as XXX is not in default in the performance of its covenants and
agreements in this Sublease, ANA's quiet and peaceable enjoyment of the
Subleased Premises shall not be disturbed or interfered with by MAFC, or by any
person claiming by, through, or under MAFC.
10. NON ASSIGNMENT. XXX shall not, directly or indirectly, assign,
convey, pledge, hypothecate or otherwise transfer its interest in this Sublease,
or sublet, license or otherwise grant to any person the right to occupy all or
any portion of the Premises (collectively, "Transfer") without (i) the prior
written consent of MAFC, and (ii) the prior written consent of Landlord to the
extent required by and in accordance with the terms and provisions of the Lease.
Any sale, assignment or other direct or indirect transfer of control of XXX or a
majority of the beneficial ownership interests in XXX in a single transaction or
one or more related transactions shall constitute a "Transfer" hereunder for
which MAFC's prior written consent shall be required. XXX shall pay, within ten
(10) days of written demand, any fees or costs payable to Landlord under the
Lease, and all attorneys' fees and costs incurred by MAFC, in connection with
the ANA's request for consent to a Transfer.
11. INSURANCE. XXX shall comply with all of the insurance
requirements and obligations of MAFC, as tenant under the Lease, and shall name
Landlord and MAFC as additional insureds, as their interests may appear, on all
policies of insurance required to be carried by XXX hereunder or thereunder. The
parties mutually agree that, with respect to any property loss which is covered
by insurance then being carried by MAFC or XXX, respectively, the party carrying
such insurance and suffering such loss releases the other of and from any and
all claims with respect to such loss; and the parties further mutually agree
that their respective insurance companies shall have no right of subrogation
against the other on account thereof, even though extra premium may result
therefrom. If and to the extent such waiver can be obtained only upon payment of
an additional charge, the party benefiting from the waiver shall pay such
charge, upon demand, or shall be deemed to have agreed that the party obtaining
the insurance coverage in question shall be free of any further obligations
under the provisions hereof relating to such waiver.
12. LIMITATIONS ON MAFC.
12.1 XXX acknowledges that MAFC has made no representations or
warranties with respect to the Building or the Premises except as expressly
provided in this Sublease.
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12.2 MAFC shall not be required to perform any of the
covenants and obligations of Landlord under the Lease and, insofar as any of the
obligations of MAFC hereunder are required to be performed under the Lease by
Landlord, XXX shall rely on and look solely to Landlord for the performance
thereof.
12.3 Any repair and maintenance obligations with respect to
the Premises which are the responsibility of MAFC, as tenant under the Lease,
shall be performed by XXX, at ANA's sole cost and expense. XXX shall promptly
notify MAFC of the need of any such repair, even though MAFC shall not be
responsible or liable therefor.
12.4 In no event shall MAFC be liable to XXX for
consequential, punitive or other special damages with respect to this Sublease
or any matter arising out of or in connection with this Sublease, the Lease or
the Premises.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease
Agreement to be executed as of the day and year first set forth above.
MAFC:
MIDNIGHT AUTO FRANCHISE CORPORATION
A MICHIGAN CORPORATION
By:_______________________________
Xxxxxxxx Xxxxx
Its: President and CEO
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxxxx, Xxxxxxxx 00000
XXX:
ALL NIGHT AUTO OF NAPERVILLE, INC., A MICHIGAN CORPORATION
By:__________________________
Xxxx Xxxxx, President
0000 Xxxx 000xx Xxxxxx
Xxxxxx Xxxx, XX 00000
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EXHIBIT A: TERMS AND CONDITIONS OF THE MASTER LEASE
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FIRST AMENDMENT TO SUBLEASE AGREEMENT
THIS FIRST AMENDMENT TO SUBLEASE AGREEMENT, made and entered into as
of this 30th day of March, 2007 by and between MIDNIGHT AUTO FRANCHISE CORP., a
Michigan corporation (hereinafter called "MAFC") and ALL NIGHT AUTO OF
NAPERVILLE, INC. (hereinafter called "XXX").
WITNESSETH:
WHEREAS, on February 16, 0000, 000xx Xxxxxx Developers, LLC, an
Illinois limited liability company (the "Landlord") consented to an assignment
of lease to MAFC of a Strip Center Retail Lease by and between the Landlord and
Expert Automotive Group, LLC dated February 9, 2004 (the "Master Lease") with
respect to the premises located at 000xx Xxxxxx xxx XxXxxxxx Xxxx, Xxxxxx Xxxx,
XX consisting of 6,860 sq.ft. of leasable space (the "Premises"); and
WHEREAS, Expert Automotive Group, LLC has assigned its tenants'
interest in the Master Lease to MAFC; and
WHEREAS, XXX subleased a portion of the Premises (5,060 square feet)
known as the All Night Auto facility (the "Subleased Premises") pursuant to a
Sublease Agreement dated February 16, 2005; and
WHEREAS, the area adjoining the Subleased Premises was occupied by
All Night Lube Express of Tinley Park, Inc. ("Lube Express Premises"); and
WHEREAS, concurrent herewith, XXX has purchased a majority interest
in All Night Lube Express of Tinley Park, Inc. and wishes to combine the two
locations into a single sublease; and
WHEREAS, MAFC and XXX are desirous of entering into this First
Amendment to Sublease to add the Lube Express Premises to the Sublease.
NOW, THEREFORE, in consideration of the above premises, and the
mutual promises below, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. SUBLEASE AMENDED TO INCLUDE LUBE EXPRESS PREMISES. The Sublease
is hereby amended to provide that the Premises shall include the Lube Express
Premises (ie, as amended, the Subleased Premises shall consist of the entire
premises leased under the Master Lease).
2. RENT. XXX shall pay Rent to MAFC from the date hereof to the
expiration of the Sublease as follows: $[*] per month from the date hereof to
February 28, 2008 (March 1, 2007 through February 28, 2008 is referred to herein
as "Year One", and the fiscal year beginning March 1 of each year and ending on
February 28 of each year is referred to
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herein as the "Fiscal Year"). Rent shall increase for each Fiscal Year after
Year One at [*] ([*]%) percent per year. Such Rent is a triple net rent rate.
XXX shall also pay to MAFC taxes and additional rent as set forth in the Master
Lease for the Subleased Premises (i.e., XXX shall pay the total taxes and
additional rent assessed under the Master Lease).
3. COMPLIANCE WITH MASTER LEASE. XXX hereby agrees to accept and be
bound by all terms and conditions imposed upon MAFC as lessee pursuant to the
Master Lease (to the extent applicable) during the Term under and pursuant to
the Master Lease, a true, correct and complete copy of such terms and conditions
Master Lease is attached hereto as Exhibit A and made a part hereof as though
fully set forth herein. MAFC hereby agrees, to the extent possible, to perform
the obligations of the Landlord under the Master Lease as though MAFC has been
named therein as landlord, or, in the alternative, MAFC may permit XXX to
exercise a direct action against Landlord under the Master Lease (MAFC hereby
passing through to XXX, Landlord's obligations under the Master Lease with
respect to the Subleased Premises). As between the parties hereto only, in the
event of a conflict between the terms of the Master Lease and the terms of this
Sublease Agreement, the terms of this Sublease Agreement will control.
4. DELIVERY OF POSSESSION. The Premises shall be delivered in their
"as is", "where is" condition, vacant and broom clean, as of the date hereof,
and on such date XXX shall accept the Premises in their existing condition and
state of repair. XXX acknowledges that no representations, statements or
warranties, express or implied, have been made by or on behalf of MAFC in
respect to the Premises' condition, compliance with laws, ordinances, statutes
or regulations, including, but not limited to, the Americans with Disabilities
Act of 1991, 42 USC Section 1201 et seq. and all regulations applicable thereto
promulgated as of the date hereof (collectively, "ADA"), or the use or
occupation that may be made thereof, and that MAFC shall not be liable for any
defects in the Premises. Acceptance of the Premises by XXX shall be construed as
recognition that the Premises are in an acceptable state of repair and in
sanitary condition.
5. NO FURTHER AMENDMENTS. Except as expressly set forth herein, the
Sublease shall remain in full force and effect.
[signatures contained on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Sublease
Agreement to be executed as of the day and year first set forth above.
MAFC:
MIDNIGHT AUTO FRANCHISE CORP.
a Michigan corporation
By: _________________________________
Name: Xxxxxxxx X. Xxxxx
Title: CEO
XXX:
ALL NIGHT AUTO OF NAPERVILLE, INC.
By: _________________________________
Name: Xxxx Xxxxx, Jr., President
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