SUBLEASE AGREEMENT
THIS AGREEMENT is made this 27th day of June, 1997, by and between
CONTOUR MEDICAL, INC., a Nevada corporation, (hereinafter referred to as
"Sublessor"), whose address is 6025 Shiloh Road, Alpharetta, GA 30005 and
RawCar GROUP, L.L.C., a Michigan limited liability company, (hereinafter
referred to as "Sublessee"), whose address is 4100 E. Baldwin Road, Grand
Blanc, MI 48439.
W I T N E S S E T H:
WHEREAS, Sublessor has entered into that certain Lease (hereinafter
referred to as the "Prime Lease") for a term ending June 30, 2000 with William
A. and Gerald Gehrand as Lessor (hereinafter referred to as the "Prime
Lessor") for lease of approximately 33,060 square feet for property located at
3340 Scherer Drive and approximately 32,000 square feet located at 3360
Scherer Drive in St. Petersburg, Florida; and
WHEREAS, Sublessor wishes to sublet a portion of the subject property of
the Prime Lease to Sublessee, and Sublessee wishes to sublease the same from
Sublessor upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants and promises as
hereinafter set forth, the parties hereby agree as follows:
ARTICLE 1
CONSTRUCTION WITH PRIME LEASE
1.1 The terms, conditions and provisions of the Prime Lease are
incorporated herein by reference and shall, as between Sublessor and
Sublessee, constitute the terms, conditions and provisions of the Sublease,
except to the extent that such are inapplicable to, inconsistent with or
modified by the provisions of this Sublease. Nothing contained in this
Sublease shall be construed to create any privily of estate or of contract
between Sublessee and the Prime Sublessor.
ARTICLE 2
LEASED PREMISES
2.1 Sublessor hereby demises and leases unto Sublessee the real estate
and improvements comprising approximately 33,060 square feet (hereinafter
referred to as "Premises") located in the City of St. Petersburg, Florida, and
commonly known as 3340 Scherer Drive.
ARTICLE 3
TERM
3.1 The term of this Sublease shall be for a period commencing July 1,
1997 and ending June 30, 2000.
3.2 If for any reason the Prime Lease is terminated prior to the
expiration date hereof, this Sublease shall thereupon be terminated and
Sublessor shall not be liable to Sublessee by reason thereof unless said
termination shall have resulted from the breach or default of Sublessor under
the Prime Lease.
ARTICLE 4
RENT
4.1 Sublessee shall pay to Sublessor at the address set forth above, or
at such other address as Sublessor may designate in writing, as rent for the
Premises, the minimum annual sum of One Hundred Thirty-Nine Thousand Eight
Hundred Forty-Three and 80/100 ($139,843.80) Dollars, payable without prior
demand, in equal monthly installments of Eleven Thousand Six Hundred Fifty
Three and 65/100 ($11,653.65) Dollars, each in advance on or before the first
day of each calendar month during the term of this Sublease, plus sales tax
and an annual increase measured by reference to the Consumer Price Index as
provided in Section 6 of the Prime Lease.
ARTICLE 5
USE AND OCCUPANCY
5.1 Sublessee agrees that the Premises shall not be used for any purpose
in violation of any law, ordinance or regulation and that Sublessee shall
comply with all laws, ordinances and regulations applicable to the Premises.
Sublessor warrants that the Premises may continue to be used for manufacturing
and other purposes to the same extent that such were so used by Sublessor
during the period of the Prime Lease preceding the term of this Sublease,
notwithstanding any provision of the Prime Lease to the contrary.
ARTICLE 6
TAXES AND OTHER CHARGES
6.1 Sublessee shall have no obligation for any real property taxes
applicable to the Premises.
6.2 Sublessee shall pay when due and before the assessment of any
penalty or interest, directly to the appropriate governmental authorities, all
taxes, assessments and charges of any kind assessed or levied upon any
personal property of Sublessee located upon the Premises.
6.3 Sublessee agrees to defend and hold Sublessor harmless from
liability for any and all taxes for which Sublessee is responsible hereunder,
together with any interest, penalties or other sums thereby imposed, and from
any sale or other proceeding to enforce payment thereof.
ARTICLE 7
INSURANCE
7.1 Sublessor shall at all times during the term of this Sublease
maintain in force insurance as required under Section 3 of the Prime Lease.
7.2 All insurance costs for the coverages required under Paragraph 7.1
hereof shall be prorated based upon the ratio of the square footage of the
Premises to the square footage of the entire property leased under the Prime
Lease and for the first and last years of this Sublease shall be prorated
between Sublessor and Sublessee on the basis of the ratio between the time the
Premises are leased to Sublessee and the time the Premises are not so leased.
Sublessee shall reimburse Sublessor for Sublessee's share of the insurance
costs as herein provided and shall make payment to Sublessor therefor as
additional rent hereunder payable at the time and place rent shall be due.
7.3 All insurance policies maintained as provided in this Article shall
name Sublessee as an additional insured and shall provide that they will not
be canceled without at least thirty (30) days prior written notice to each
named insured.
7.4 Each policy of insurance shall provide that the insurer waives any
right of subrogation against either party in connection with or arising out of
any damage or loss covered by such insurance. Each of the parties hereby
releases and relieves the other, and waives such party~s entire right of
recovery against the other, for loss or damage arising out of or incident to
the risks insured against under this Article, whether due to the negligence of
Sublessor or Sublessee, their agents, employees, contractors, invitees,
licensees or guests, to the extent of any recovery under such insurance.
ARTICLE 8
INDEMNIFICATION
8.1 Sublessee shall indemnify and hold Sublessor harmless from and
against any and all claims for loss or damage to person or property arising
from Sublessee's use or occupancy of the Premises or any activity permitted or
suffered by Sublessee to be conducted on or about the Premises Sublessee
further agrees to indemnify and hold Sublessor harmless against any and all
claims arising from any breach or default in the performance of any obligation
on Sublessee's part to be performed hereunder, or arising from any negligence
of Sublessee, its agents, officers, employees, contractors, representatives,
invitees, licensees and guests, and from and against all costs, attorney fees,
expenses and liabilities incurred by Sublessor in the defense of any such
claim or action brought thereon. Sublessor shall indemnify and hold Sublessee
harmless from and against any and all claims for loss or damage to person or
property arising from any negligent act or omission of Sublessor, its agents,
officers, employees, contractors, representatives, invitees, licensees and
guests, and from and against all costs, attorney fees, expenses and
liabilities incurred by Sublessee in the defense of any such claim or action
brought thereon.
ARTICLE 9
REPAIRS, MAINTENANCE AND OTHER COSTS
9.1 Sublessee shall, throughout the term of this Sublease, at
Sublessee's sole cost and expense, maintain the interior of the Premises in
good order and repair, including, but not limited to, all plumbing, electrical
and air conditioning elements serving the Premises, and shall pay for all
water, sewer and refuse collection for the Premises. Sublessor shall be
responsible for maintaining in good order and repair the remainder of the
Premises, including, but not limited to, the roof, outer walls, foundation,
drive, parking areas and grounds. 9.2 If within a reasonable time after notice
to Sublessor of the need of repairs or maintenance for which Sublessor is
responsible hereunder, Sublessor neglects to undertake such repairs or
maintenance, Sublessee may undertake same and deduct the expenses thereof from
the rent due Sublessor.
ARTICLE 10
FIRE OR OTHER CASUALTY
10.1 If the Premises should be damaged or destroyed by fire, flood or
other casualty, Sublessee shall give immediate notice thereof to Sublessor.
Should the Premises be totally destroyed, or so damaged that rebuilding or
repairs cannot reasonably be completed within ninety (90) days from the date
of written notification by Sublessee to Sublessor of the occurrence of the
damage, this Sublease shall terminate and rent shall be abated for the
unexpired portion of the Sublease, effective as of the date of said written
notification. If the Premises shall be damaged, but not to such an extent that
rebuilding or repairs cannot reasonably be completed within ninety (90) days
from the date of written notification by Sublessee to Sublessor of the
occurrence of the damage, this Sublease shall not terminate, but Sublessor
shall, if the casualty has occurred prior to the final six (6) months of the
Sublease term, at Sublessor's full cost and risk, proceed forthwith to rebuild
or repair the Premises to substantially the same condition in which they
existed prior to such damage. If the casualty occurs during the final six (6)
months of the Sublease term, Sublessor shall not be required, but may, rebuild
or repair such damage. If the Premises, whether or not they are to be rebuilt
or repaired, remain for any time untenantable in whole or in part following
such damage, the rent payable hereunder during the period in which they are
untenantable shall be adjusted appropriately. In the event that Sublessor
fails to complete such rebuilding or repair within ninety (90) days from the
date of written notification by Sublessee to Sublessor of the occurrence of
the damage, Sublessee may, at its option, terminate this Sublease by written
notification at such time to Sublessor, whereupon all rights and obligations
hereunder shall cease.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 Sublessee shall have the right without the prior written consent of
Sublessor to assign this Sublease or sublet the Premises, provided any such
assignee or sublessee shall agree to comply with the terms of this Sublease.
Any such assignment or sublease shall not relieve Sublessee of its obligations
under this Sublease.
ARTICLE 12
NO PRIME LEASE RENEWAL
12.1 Sublessor hereby agrees not to seek or enter into any extension,
renewal or additional lease with respect to the Premises extending beyond the
expiration date of the term hereof.
ARTICLE 13
ENVIRONMENTAL
13.1 To the best knowledge of Sublessor, (i) no Hazardous Waste (as
defined below) or Hazardous Material (as defined below) is present on the
Premises, nor has Sublessor ever generated, transported, used, stored,
treated, disposed of or managed any Hazardous Waste or Hazardous Material,
(ii) Sublessor has no material liability and has not violated in any material
respect any Environmental Law (as defined below), (iii) Sublessor is in
compliance in all material respects with all applicable Environmental Laws,
and (iv) Sublessor has never entered into or been subject to any material
judgment, consent decree, compliance order or administrative order with
respect to any material environmental or health and safety matter or received
any demand letter, formal complaint or claim with respect to any environmental
or health and safety matter or the enforcement of any environmental law.
13.2 Sublessor hereby agrees to indemnify, defend and hold harmless
Sublessee from and against all claims, liabilities and expenses, including
reasonable attorney fees, arising from or incurred in connection with any
Hazardous Waste or Hazardous Material on or about the Premises or relating to
any investigation or clean-up of Hazardous Waste or Hazardous Material on or
about the Premises to the extent that such Hazardous Waste or Hazardous
Material is present at the time possession is delivered as provided hereunder.
13.3 For purposes of this Sublease, (i) "Hazardous Material" shall mean and
include any hazardous waste, hazardous material, hazardous substance,
petroleum product, oil, toxic substance, pollutant or contaminant, as defined
or regulated under any Environmental Law or any other substance which may pose
a threat to the environment or to human health or safety; (ii) "Hazardous
Waste" shall mean and include any hazardous waste as defined or regulated
under any Environmental Law; and (iii) "Environmental Law" shall mean any
environmental or health and safety related law, regulation, rule, ordinance or
bylaw at the foreign, federal, state or local level, whether existing as of
the date hereof, previously enforced or subsequently enacted.
ARTICLE 14
NON-WAIVER
14.1 The failure by Sublessor or Sublessee to insist upon prompt and
strict performance of any of the terms, conditions or undertakings of this
Sublease shall not be construed as a waiver of the same or any other term,
condition or undertaking.
ARTICLE 15
NOTICES
15.1 Any notices or consents to be given by or on behalf of either party
to the other shall be in writing and delivered by mail, registered or
certified, return receipt requested, to each party at the address first above
written. All notices shall be deemed effective upon mailing.
ARTICLE 16
APPLICABLE LAW AND CONSTRUCTION
16.1 The laws of the State of Michigan shall govern the validity,
performance and enforcement of this Sublease. The invalidity or
unenforceability of any provision of this Sublease shall not affect or impair
any other provision. The submission of this document for examination does not
constitute an offer to lease, or a reservation of or option for the Premises,
and becomes effective only upon execution and delivery thereof by Sublessor
and Sublessee.
16.2 The terms, covenants, agreements, conditions and undertakings
contained herein shall be binding upon and shall inure to the benefit of the
successors, heirs, assigns and personal representatives of the parties hereto.
16.3 All negotiations, considerations, representations and
understandings between the parties with respect to the subject matter hereof
are incorporated herein and in the Prime Lease (to the extent that such is not
inconsistent herewith) and may be modified or altered only by agreement in
writing by the parties.
16.4 The headings of the several Articles contained herein are for
convenience only and do not define, limit or construe the contents of such
Articles.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease
Agreement as of the day and year first above written.
SUBLESSOR:
CONTOUR MEDICAL, INC.
By:/s/ Donald F. Fox
Donald F. Fox
Its: President
SUBLESSEE:
RAWCAR GROUP, L.L.C.
By:/s/ Richard A. Weaver
Richard A. Weaver, Member