Exhibit 10.43
Confidential Treatment Request
[*] indicates information that has been omitted pursuant to a confidential
treatment request and this information has been filed under separate cover with
the Commission.
THIS SUBLEASE made as of the 1st day of April, 2003, is made between Meineke
Realty, Inc., a company duly incorporated under the laws of the State of North
Carolina with its principal place of business located at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter called the "Sublessor"
"Meineke") and All Night Auto, Inc., a Michigan corporation with its principal
place of business located at 0000 Xxxxxxxxx Xxxx, Xxxx, Xxxxxxxx, (hereinafter
referred to as the "Subtenant").
WHEREAS, by a Lease dated June 1, 1992, (the "Head Lease"), Rochester Road Car
Care Center leased to Meineke the premises located at 0000 Xxxxxxxxx Xxxx, Xxxx,
Xxxxxxxx (the "Demised Premises") for a term of fifteen (15) years commencing on
the date of commencement enumerated in the Head Lease; and
WHEREAS, a copy of the Head Lease is attached hereto as Exhibit "1" and
incorporated by reference; and
WHEREAS, the Sublessor has agreed with the Subtenant to grant a Sublease of the
Demised Premises to the subtenant subject to the terms of the Sublease.
NOW THEREFORE, in consideration of the rents reserved under the Sublease and
covenants to be performed by the Sublessor and Subtenant, the parties agree as
follows:
1) In consideration of the mutual covenants and agreements set forth in the
Lease and other good and valuable consideration, Sublessor hereby demises and
leases to Subtenant, and Subtenant takes such Lease from Sublessor of the
Demised Premises.
2) (A) The term of this Lease (the "term") shall commence on the
Commencement Date (as described in Section 2(C) below) and shall end at midnight
(Eastern Standard Time) on the May 31, 2007 (date of expiration of Head Lease).
(B) The expression "Lease Year" when used in this Lease shall mean a
period of twelve (12) consecutive full calendar months beginning on June 1st of
each year and ending May 31st during the Term.
(C) The expression "Commencement Date" when used in this Lease shall
mean April 1, 2003.
(D) At anytime after the expiration of the First Lease Year of this
Sublease, Subtenant shall have the right and option to terminate the Lease for
any reason provided that Subtenant gives Sublessor at least (6) months written
notice prior to the termination and pay to Sublessor an amount, in addition to
the rental payments due Sublessor through the actual date of termination of the
Sublease, an amount equal to three (3) months rent payments at the then current
rental rate under the Sublease ("Termination Amount"). The term rental rate
shall include the base rentals and additional rent defined in the Headlease,
which shall include taxes, maintenance and
*Portions of this exhibit have been omitted and filed separately pursuant to an
application for confidential treatment filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.
insurance on a pro-rated basis. This termination Amount shall be paid in one
lump sum to be received by the Sublessor no later than the actual termination of
this Sublease. In the event that Sublessor has not received the Termination
Amount by the appointed date, then Sublessor shall be entitled to the recovery
of all sums due as if this Lease had been terminated by Subtenant prior to the
end of the stated term of the Sublease. Other than as set forth in this section,
upon the termination of this Sublease by the Subtenant as provided in this
Section, Subtenant shall not be liable to Sublessor for any future performance
or payments for the remainder for the unexpired Lease term.
(E) At anytime after the expiration of the First Lease Year of this
Sublease, Sublessor shall have the right and option to terminate the Lease for
any reason provided the Sublessor give the Subtenant at least six (6) months
written prior notice to the termination and pays to Subtenant an amount equal to
three (3) months rent payments at the then current rental rate under the
Sublease. Other than as set forth in this section, upon the termination of this
sublease by the Subtenant as provided in this Section Sublessor shall not be
liable to Subtenant for any future performance or payments for the remainder for
the unexpired Lease term.
3. If Subtenant holds over and continues in possession of the Demised
Premises after expiration of the Term or any other extension of this Lease,
Subtenant will be deemed to be occupying the premises on the basis of a
month-to-month tenancy.
4. (A) RENT Subtenant agrees to pay to Sublessor at its address as provided
at the beginning of this Sublease (or at such other address as Sublessor may
from time to time designate in a written notice to Subtenant) as base rent for
the Demised Premises the sums set forth below for each year of this Lease. The
base rent is payable in twelve (12) equal monthly installments (each such
installment being due on the first day of the calendar month to which it
relates).
The rent shall be payable in equal monthly installments in advance on
the first (1st) day of each month during each year of the term of this
Sublease, the first such payment to be made on the first day of April,
2003. The amount of the monthly installments shall be [*].
(B) Subtenant shall pay the Sublessor on or before the first day of each
month during the term of the Sublease, the amounts payable by the Sublessor
under the Head Lease, including but not limited to triple net expenditures.
However, nothing in Paragraph 4 of the Sublease shall relieve the Subtenant the
obligation of paying to the Sublessor all amounts of additional rent as they
become due, including taxes, maintenance and insurance.
5. (A) During the Term of this Lease, Subtenant shall not use, or permit
the use of the Demised Premises in any manner that constitutes a nuisance nor
shall Subtenant use, or permit the use of, the Demised Premises for any illegal
purpose. Commencing from the Commencement Date, Subtenant, at its expense, will
comply, and will cause its Officers, employees, agents and invitees to comply
with all applicable laws and ordinances, and with all applicable rules and
regulations of governmental agencies concerning Subtenant's use of the Demised
Premises.
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(B) Save as in compliance with Environmental Laws, Subtenant agrees not
to generate, store, handle or dispose of any Hazardous Substance in or upon the
Demised Premises during the Term of this Lease. Subtenant shall indemnify and
hold Sublessor harmless from and against all and any liabilities, claims
(including, but not limited to, third party claims, whether or not meritorious),
damages, losses, costs and expenses, (including, but not limited to, attorney's
fees and disbursements) arising out of the breach of this Section by Subtenant.
6. Where used in this Sublease any word or term, which specifically defined
in the Head Lease, shall have the same meaning as that described to it in the
Head Lease.
7. It is expressly agreed between the parties that in the event the
Sublessor is unable to obtain the written consent of the Head Lessor to this
Sublease (should such consent be required by the provision of the Head Lease)
this Sublease will be null and void and of no further effect and the Subtenant
acknowledges and agrees that the Sublessor shall not be responsible for any loss
or damage occasioned to the Subtenant by virtue of the refusal of the said
Lessor to consent to this Sublease.
8. the Subtenant covenants with the Sublessor as follows:
a) to pay rent as aforesaid;
b) to perform and observe all of the covenants on the part of the
Sublessor as tenant under the provisions of the Head Lease and to keep the
Sublessor fully and completely indemnified against all actions, claims, expenses
and demands in respect to each and every such covenants; and
c) not to assign, sublet or part with possession of all or any part of
the Demised Premises without the prior consent in writing of the Sublessor,
which consent may be unreasonably withheld, or if granted, may be granted by the
Sublessor upon such terms and conditions as the Sublessor may see fit; subject
always to the prior consent of the Head Lessor in accordance with, and subject
to, the terms of the Head Lease.
9. The Subtenant acknowledges and confirms all of the provisions of the
Head Lease and agrees to be bound by the Head Lease as if all of the covenants
of the Sublessor as Tenant contained therein had been fully incorporated into
the Sublease as covenants of the Subtenant.
10. The Subtenant shall use and occupy the Demised Premises solely for the
operation of an automotive repair business offering the following products
and/services; general automotive repair including brakes, exhaust, tune-up,
alignments, oil changes, shocks, struts, light engine repair, front end repair,
suspension and electrical repair. Subtenant is specifically excluded from
offering heavy engine repair and/or transmission products or service at the
Demised Premises.
The Subtenant hereby acknowledged that Section 6 of the Head Lease
provides that the Demised Premises be used for the operation of a Meineke
Discount Muffler Shop. Subtenant acknowledges that this Sublease is conditioned
upon the Head Lessor's agreement to modify this section and allow Subtenant to
use and occupy the Premises as contemplated by this Sublease. It is expressly
understood between the parties that in the event the Sublessor is unable to
obtain the
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Written consent of the Head Lessor to modification in the Use and Occupancy
Clause, this Sublease shall be null and void and of no further effect and the
Subtenant acknowledges and agrees that the Sublessor shall not be responsible
for any loss or damage occasioned by the Subtenant by virtue of the refusal of
the said Head Lessor to consent of this Sublease.
11. Proviso for re-entry by the Sublessor on non-payment of rent or
non-performance of the covenants or agreements, which rent of re-entry may be
exercised immediately upon default, having occurred and without prior notice to
the Subtenant. The Sublessor shall in addition to such right of re-entry, have
all the same rights as the Head Lessor under the Head Lease in the event of
Default or non-performance by the Subtenant of these provisions of this
Sublease, all of which and all remedies available to the Head Landlord shall be
considered to be incorporated in the Sublease by reference.
12. The Sublessor covenants with the Subtenant as follows:
a) To pay the Head Lessor all amounts received by the Sublessor form the
subtenant payable under the terms of the Head Lease;
b) To enforce its rights as tenant under the Head Lease against the Head
Landlord, provided that the Subtenant will pay to the Sublessor on demand all
Sublessor's reasonable costs, expenses and disbursements incurred in enforcing
its rights and further provided that the Sublessor may, prior to taking any
action to enforce any such rights, require the Subtenant to provide indemnity
reasonably satisfactory to the Sublessor against such costs, expenses and
disbursements.
13. Any notice in writing which either party may desire to give to the other
may be validly effectually given by mailing the same by prepaid registered or
certified mail or overnight delivery, return receipt requested, addressed, if
intended for the Subtenant to the Demised Premises, an if intended for the
Sublessor to:
Meineke Realty, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Or such other addresses as either party may notify the other by notice in
writing.
14. Where there is more than one Subtenant, covenants and agreements of the
Subtenant shall be considered joint and several covenants and agreements. The
provisions of this Sublease shall be read with all the grammatical changes
required if there is more than one (1) Subtenant or if the Subtenant is male,
female or a corporation.
15. In the event that there is a conflict between the terms of the Sublease
and the Headlease, the terms of the sublease shall control.
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IN WITNESS WHEREOF, the parties hereto have executed the Sublease under seal.
Executed the date first written above.
MEINEKE REALTY, INC. ALL NIGHT AUTO, INC.
(Sublessor) (Subtenant)
By: /s/ [illegible] By: /s/ [illegible] President
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Authorized Representative Authorized Representative
Witness: Witness:
/s/ [illegible] /s/ [illegible]
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