SUBLEASE
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THIS SUBLEASE ("Sublease") is made on October 20, 2006, by and
between MIDNIGHT AUTO FRANCHISE CORP., a Michigan corporation, whose principal
business address is 00000 Xxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxxxxx, Xxxxxxxx 00000
("Sublessor"), and ALL NIGHT AUTO OF BLOOMINGTON/NORMAL, LLC, 0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxxx Xxxxx, XX 00000 ("Sublessee").
R E C I T A L S:
A. On June 22, 2006, CBHOA Bonus Plan 97 Partnership, an
Illinois partnership, as Landlord, and Sublessor, as Tenant, entered into a
lease ("Lease") for certain Premises consisting of approximately 4,000 square
feet of space located in Bloomington, XxXxxx County, Illinois, commonly known as
13 Westport Unit B, and as more fully described in the attached copy of the
Lease (the "Premises").
B. Sublessor owns a 20.74% Class B Membership Interest in
Sublessee and has certain obligations and duties towards Sublessee's Class A
Member, Bloomington Center Associates, LLC (the "Class A Member"), all as set
forth in Sublessee's Operating Agreement dated October 1, 2006 (the "Operating
Agreement").
C. Sublessee desires to sublease from Sublessor the entire
Premises for use of the Premises as an "All Night Auto" service center in
accordance with and subject to the terms and conditions of the Lease and this
Sublease.
D. The Premises are supported by a separate automotive retail
store premises located in the Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxx, that
Sublessee possesses pursuant to a separate lease agreement (the "Eastland Mall
Lease).
E. Sublessor and the Landlord under the Eastland Mall Lease
(the "Eastland Mall Landlord") entered or will enter into a Sponsorship
Agreement (the "Sponsorship Agreement"), whereby the Eastland Mall Landlord will
provide certain advertising and marketing services in support of the Eastland
Mall Lease premises.
F. Sublessee and Sublessor have entered into a Business
Management Systems Agreement dated October 20, 2006 (the "Management
Agreement"), pursuant to which Sublessor shall provide its management services
in connection with the operations of the Premises.
G. Sublessor and the Class A Member have entered into an
Option Agreement dated October 20, 2006 (the "Option Agreement"), whereby
Sublessor has agreed to provide the Class A Member with the option to
participate with Sublessor in the development and operation future retail and
service stores.
NOW THEREFORE, for and in consideration of the foregoing
Recitals and for other valuable consideration, the adequacy and receipt of which
are hereby acknowledged, the parties agree as follows:
1. SUBLEASE. Sublessor hereby subleases to Sublessee the
Premises for the term of the Lease and as the term of the Lease may be extended
or renegotiated. Sublessor agrees that Sublessor will exercise any option to
extend the term of the Lease in accordance with the instructions of Sublessee.
Notwithstanding the foregoing, in the event the Eastland Mall Lease or the
Management Agreement terminates for any reason whatsoever, or in the event of
Sublessor's default under the Lease, this Sublease, the Operating Agreement, the
Sponsorship Agreement, the Management Agreement, and/or the Option Agreement, at
any time during the term of this Sublease, Sublessee shall have the right, but
not the obligation to terminate this Sublease without any further obligation to
Sublessor hereunder. In fulfillment of Sublessor's obligations under the
Management Agreement, Sublessor acknowledges and agrees that it will be
primarily responsible on behalf of Sublessee to keep, perform and fulfill all of
the duties, obligations, terms and conditions which are to be kept, performed
and fulfilled under the Lease, whether or not expressly set forth in this
Sublease.
2. RENTAL PAYMENTS. Pursuant to the Management Agreement,
Sublessor shall pay on Sublessee's behalf as Rent during the term of this
Sublease, an amount equal to the Rent and all other charges specified in the
Lease. Rent shall be paid by Sublessor on Sublessee's behalf on or before the
25th day of each month preceding the month to which such payment relates, to be
applied to any obligations due the next ensuing month.
Pursuant to the Management Agreement, Sublessor on Sublessee's
behalf is to pay all of the foregoing sums without prior demand by the Sublessor
or setoff. The obligations of the Sublessee for other charges under the Lease,
to the extent the same are not estimated by the Landlord and required to be paid
monthly, shall be paid by the Sublessor on Sublessee behalf not less than seven
(7) days prior to the stipulated due date for the payment therefor; or promptly
upon being invoiced for such charges by Sublessor to the extent there is not a
stipulated due date or such payment is based upon an invoice to be rendered by
Sublessor or the Landlord. All payments required by this Sublease are payable
and deliverable to: Midnight Auto Franchise Corp., 00000 Xxxx Xxxx, Xxxxx 000,
Xxxxxxx Xxxxxxxx, XX 00000.
3. DEFAULT BY SUBLESSEE.
(a) DEFAULT. The occurrence of any one or more of the
following shall constitute an Event of Default ("Event of Default") under this
Sublease:
(i) Filing by or against Sublessee in any court
pursuant to any federal or state statute or a petition in
bankruptcy or insolvency, or for reorganization or
rearrangement, or for the appointment of a receiver or trustee
of all or any portion of Sublessee's property, or any
assignment of the property of Sublessee for the benefit of
creditors; provided, that Sublessee and Guarantor shall have
sixty (60) days to obtain a dismissal of any involuntary
proceeding.
(ii) Assignment or encumbrance of this Sublease or
subletting of the Premises other than in accordance with the
terms of this Sublease.
(b) REMEDIES UPON DEFAULT. Upon the occurrence of any Event of
Default, and after applicable notice and the expiration of any applicable cure
period, Sublessor and
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Landlord shall have the right to re-enter the Sublease Premises, remove all
persons and property within the Sublease Premises, relet the Sublease Premises
and/or enforce any other remedies against Sublessee that Landlord would have
against Sublessor, as tenant, under the Lease, including (without limitation) a
claim for any unpaid Rent. All of the rights and remedies of Sublessor under
this Sublease are cumulative and shall be in addition to any other rights or
remedies accorded to Sublessor and Landlord by law or to Landlord under the
Lease.
4. ASSIGNMENT AND SUBLETTING. Sublessee shall not assign its
rights under the Sublease in whole or in part or sublet all or any part of the
Premises or otherwise assign, transfer or hypothecate by operation of law or
otherwise all or any part of the Lease or this Sublease without Sublessor's
express prior written consent, which consent shall not be unreasonably withheld;
provided, however, in the event of a default by Sublessor under the Lease, this
Sublease, the Operating Agreement, Management Agreement or Option Agreement then
the Premises or the Sublease may be assigned or subleased by Sublessor without
the consent of the Sublessor.
5. NOTICES. Any notices, requests, demands and other
communications between the parties shall be deemed to have been duly given if
the same shall be in writing and shall be sent by registered mail, return
receipt requested or overnight mail by a reputable courier, or sent via
facsimile, followed by delivery of a hard copy sent via first class mail, and
addressed:
If to Sublessor: If to Sublessee:
Midnight Auto Franchise Corp. All Night Auto Bloomington/Normal, LLC
00000 Xxxx Xxxx, Xxxxx 000 Attn: Xxxxxx Xxxxx, Manager
Xxxxxxx Xxx, XX 00000 0000 Xxxxxxx Xxxx Xxxx
000 Xxxxxxxxxx Xxxxx, XX 00000
6. TERMS SUBJECT TO LEASE. Sublessee's rights pursuant to this
Sublease are subject and subordinate at all times to the Lease and to all of the
covenants and agreements of the Lease. Accordingly, if the Lease for the
Premises is terminated, the Sublease shall terminate concurrently therewith,
except for any obligations owing from Sublessee to Sublessor for the period
prior to such termination, and any post-termination obligations of Sublessee.
Sublessee shall not do, permit or tolerate anything to be done in, or in
connection with Sublessee's use or occupancy of, the Premises which would
violate any Lease covenant or agreement. As to the Premises, Sublessee expressly
agrees to be bound by all obligations, covenants and restrictions which are set
forth in the Lease in the same manner as such obligations, covenants and
restrictions are binding upon Sublessor, as Tenant under the Lease, except as
expressly modified by this Sublease. The Landlord under the Lease may enforce
against Sublessee, each in its own capacity, any of the rights granted to
Landlord pursuant to the Lease, except as specifically provided in this
Sublease. Sublessor may not grant to Sublessee, and nothing in the Sublease
shall be construed or interpreted to grant, any greater rights than Sublessor
has received as Tenant from Landlord pursuant to the Lease.
7. LIMITATIONS OF SUBLESSOR'S OBLIGATIONS. Sublessee
acknowledges and agrees that Sublessor shall have no obligation or
responsibility whatsoever to provide or perform
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any service, repair, alteration or other similar obligation which is the
obligation of Landlord to provide or perform pursuant to the terms of the Lease.
8. CONSENT OF LANDLORD. The parties acknowledge and agree that
the consent of the Landlord may be required under the Lease to permit the
sublease of the Premises to Sublessee. If Sublessor has not yet obtained that
consent, and if such consent is required under the Lease, Sublessor will make
efforts to obtain that consent and Sublessee agrees to cooperate with Sublessor
and/or Landlord in connection with such request for consent.
9. FURTHER ASSURANCES. Sublessee agrees to sign and deliver
all documents and take any such actions which may be deemed reasonably necessary
by Sublessor to effectuate the transaction(s) contemplated by this Sublease.
10. GOVERNING LAW. This Sublease is being executed and
delivered in the State of Michigan, and the laws of such state shall govern the
validity, construction, enforcement and interpretation of this Sublease. The
parties agree that all actions arising directly or indirectly out of this
Sublease shall be litigated only in the United States District Court for the
Eastern District of Michigan, Southern Division, or the Oakland County,
Michigan, Circuit Court, and the parties hereby irrevocably consent to the
personal jurisdiction and venue of those courts over the parties to this
Sublease.
11. MARGINAL HEADINGS. The marginal headings hereof are
inserted merely for the convenience of the parties and shall not be used to
construe or modify the terms of this Sublease in any respect.
12. WAIVER. Failure of Sublessor to complain of any act or
omission on the part of the Sublessee, no matter how long the same may continue,
shall not be deemed to be a waiver by Sublessor of any of its rights hereunder.
No waiver by Sublessor at any time of any other provision of this Sublease shall
be deemed a waiver or default of any other provision of this Sublease or a
consent to any subsequent default of the same or any other provision hereunder.
If any act or omission by Sublessee shall require the consent or approval of
Sublessor, such consent or approval of such act or omission on any one occasion
shall not be deemed a consent to or approval of said act or omission on any
subsequent occasion or consent to or approval of any other act or omission on
the same or any subsequent occasion.
13. PARTIES BOUND. This Sublease shall be binding upon and
inure to the benefit of Sublessor and Sublessee and their respective heirs,
personal representatives, successors and assigns.
14. PARTIAL INVALIDITY. If any provision of this Sublease is
held by a court of competent jurisdiction to be invalid, void or unenforceable
in any manner, the remaining provisions of this Sublease shall nonetheless
continue in full force and effect without being impaired or invalidated in any
way. In addition, if any provision of this Sublease may be modified by a court
of competent jurisdiction such that it may be enforced, then said provision
shall be so modified and as modified shall be fully enforced.
15. ENTIRE AGREEMENT. Except as otherwise stated herein this
Sublease contains the entire understanding of the parties hereto with respect to
the subject matter
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contained herein and supersedes all prior and contemporaneous agreements,
understandings and negotiations. No parol evidence of prior or contemporaneous
agreements, understandings and negotiations shall govern or be used to construe
or modify this Sublease. No modification or alteration hereof shall be deemed
effective unless in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Sublease on
the date set forth above.
"SUBLESSOR"
MIDNIGHT AUTO FRANCHISE CORP.
a Michigan corporation
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
Its:CEO and Chairman
"SUBLESSEE"
ALL NIGHT AUTO OF
BLOOMINGTON/NORMAL, LLC,
a Michigan limited liability company
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Its: Manager
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