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EXHIBIT 10.51
SUBLEASE
BETWEEN NOVACARE OUTPATIENT
REHABILITATION DIVISION EAST, INC.
A DELAWARE CORPORATION, SUBLESSOR
AND
BOOMERSHINE AUTOMOTIVE GROUP, INC., SUBLESSEE
1. PARTIES.
This Sublease dated February 5, 1998 is made between NOVACARE
OUTPATIENT REHABILITATION DIVISION EAST, INC. ("Sublessor") and BOOMERSHINE
AUTOMOTIVE GROUP, INC. (Sublessee).
2. MASTER LEASE
Sublessor is the lessee under a written lease dated October 18, 1993,
wherein LAING MANAGEMENT COMPANY ("Lessor") leased to Sublessor the real
property located in the city of Atlanta, County of Fulton, State of Georgia,
described as 5901B Peachtree Dunwoody Road ("Master Premises"). Said lease is
herein collectively referred to as the "Master Lease" and is attached hereto as
Exhibit "A".
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): 4,708 rentable square feet of Suite 250 at 5901B Peachtree
Dunwoody Road, Atlanta, Georgia 30328.
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4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease
has not been amended or modified except as expressly set forth herein, that
Sublessor is not now and, as of the commencement of the Term hereof, will not be
in default or breach of any of the provisions of the Master Lease, and that
Sublessor has no knowledge of any claim by Lessor that Sublessor is in default
or breach of any of the provisions of the Master Lease.
5. TERM.
The term of this Sublease shall commence on March 1, 1998, and shall
end on March 31, 1999, ("Termination Date"), unless otherwise sooner terminated
in accordance with the provisions of this Sublease. Possession of the Premises
("Possession") shall be delivered to Sublessee on the Commencement Date or
sooner by mutual agreement. If Sublessor permits Sublessee to take Possession
prior to the Commencement Date, such early Possession shall not advance the
Termination Date, but Sublessee shall be subject to the provisions of this
Sublease as of such date, including without limitation the payment of rent.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor minimum rent,
without deduction, set-off, notice or demand, at the following address: 1016 W.
Ninth Avenue, King of Prussia, Pennsylvania 19406, or at such other place as
Sublessor shall designate from time to time by notice in writing to Sublessee,
the sum of Four Thousand Seven Hundred Eight Dollars ($4,708.00) per month, in
advance on the first day of each month of the Term. Sublessee shall pay to
Sublessor upon execution of this Sublease the sum of Four Thousand Seven Hundred
Eight Dollars ($4,708.00) as rent for March 1998. If the Term begins or ends on
a day other than the first or
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last day of month, the rent for the partial month shall be prorated on a per
diem basis based on a 360 day year.
6.2 Late Payment. In the event that any payment required by Sublessee
under the provisions hereof shall not be paid within three (3) days of the date
when due, Sublessee shall, upon demand, pay a late charge to Sublessor in an
amount computed at 10 percent per annum of each dollar overdue and such late
charge shall be deemed "rent" for all purposes under this Sublease.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor, upon execution of this
Sublease, the sum of Five Thousand Four Hundred Ninety-two Dollars and 67/100
($5,492.67) as security for Sublessee's faithful performance of Sublessee's
obligations hereunder ("Security Deposit"). If Sublessee fails to pay rent or
other charges when due under this Sublease, or fails to perform any of its other
obligations hereunder, Sublessor may use or apply all or any portion of the
Security Deposit for payment of any rent or other amount then due hereunder and
unpaid, for the payment of any other sum for which Sublessor may become
obligated by reason of Sublessee's default or breach, or for any loss or damage
(including attorney's fees) sustained by Sublessor as a result of Sublessee's
default or breach. If Sublessor so uses any portion of the Security Deposit,
Sublessee shall, within 10 days after written demand by Sublessor, restore the
Security Deposit to the full amount originally deposited, and Sublessee's
failure to do so shall constitute a default under this Sublease. Sublessor shall
not be required to keep the Security Deposit separate from its general accounts,
and shall have no obligation or liability for payment of interest on the
Security Deposit. In the event Sublessor assigns its interest in this Sublease.
Sublessor shall deliver to its assignee so much of the Security Deposit as is
then held by Sublessor. Within 30 days after the term has expired, or
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Sublessee has vacated the Premises, or any final adjustment pursuance to
Subsection 6.3 hereof has been made, whichever shall last occur, and provided
Sublessee is not then in default of any of its obligations hereunder, the
Security Deposit, or so much thereof as had not therefore been applied by
Sublessor, shall be returned to Sublessee, or to the last assignee if any, of
Sublessee's interest hereunder.
8. USE OF PREMISES.
Sublessee represents that the use of the Premises shall be the use as
set forth in the Lease Summary. Sublessee shall not permit the Sublease Premises
to be used for any other purpose without the prior written consent of both
Sublessor and the Lessor, but in no event shall such use violate the terms of
the Master Lease. Sublessee shall comply with all present and future laws,
ordinances, regulations, and requirements of all federal, state, and other
governmental authorities relating to the use of the Sublease Premises. Sublessee
shall not permit the Sublease Premises to be used in any manner that would
constitute a public or private nuisance or that would interfere with any other
tenant's use of the Building or the project in which the Building is located.
Sublessee shall observe and abide by all rules and regulations that are
established by Lessor relating to the Sublease Premises or the use of any other
part of the Building or projection on which the Building is located.
9. CONDITION OF PREMISES.
(a) Sublessee agrees to accept the Sublease Premises in "as is"
condition as of the commencement of the term of this Sublease. Sublessee
acknowledges that Sublessor is not making any representations or warranties
regarding the Sublease Premises, except as may be set forth in this Sublease.
Sublessee shall surrender the Sublease Premises to Sublessor upon the expiration
or
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termination of this Sublease, in as good condition as they are at the
commencement of this Sublease, ordinary wear and tear excepted.
(b) During the term of this Sublease, Sublessee shall not make or
install any additions, renovations, alterations, improvements, or changes in or
to the Sublease Premises, or any part thereof, without first obtaining the prior
written consent of both Sublessor and the Lessor. If approved by Sublessor and
Lessor, all work will be in accordance with all laws and regulations, including
the Americans with Disabilities Act. The Sublessee shall be obligated to obtain
all necessary permits at its expense. At the expiration of the sublease term,
Sublessee shall remove, if requested by Sublessor or Lessor, any improvements or
installations constructed by Sublessee.
10. REPAIRS AND MAINTENANCE.
Throughout the term of this Sublease, Sublessee shall, at its sole cost
and expense, keep and maintain the Sublease Premises in good condition, ordinary
wear and tear excepted. Any damage or injury to the Sublease Premises that is
caused by the negligent act or omission of Sublessee, or any of its employees,
subcontractors, agents, servants or visitors, shall be promptly repaired by
Sublessee at its sole cost and expense. In the event that Sublessee does not
make any repairs which it is obligated to make under this Paragraph, Sublessor
shall have the right to make such repairs and Sublessee shall pay to Sublessor
all costs and expenses thereof as additional rent.
11. BUILDING SERVICES.
To the extent that any utility, elevator or cleaning services are
furnished to the Sublease Premises by Lessor, Sublessee shall be entitled to the
use and benefit of such services; provided, however, that Sublessor shall not
have any liability or responsibility to Sublessee for the quality of such
services or for any interruptions, failure or disruption in the availability of
such services
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unless such interruption, failure or disruption results from the negligent act
or omission of Sublessor. Sublessee shall pay for all its utility expenses, such
as telephone service, etc. (electricity is paid by landlord)
12. INDEMNIFICATION.
Sublessee shall defend, indemnify, and hold harmless Sublessor, its
agents and employees from and against all liabilities, obligations, damages,
penalties, claims, costs, charges, and expenses, including reasonable attorney's
fees, which may be imposed upon or incurred by Sublessor or asserted by reason
of any of the following which shall occur during the term of this Sublease or
during any period of time prior to the Commencement Date when Sublessee may have
been given access to or possession of all or any portion of the Sublease
Premises:
(a) any work or act done in, on, or about the Sublease Premises or any
part thereof at the direction of Sublessee, its agents, contractors,
subcontractors, servants, employees, licensees, or invitees, unless such work or
act is done or performed by Sublessor or its agents or employees;
(b) any negligence or other wrongful act or omission on the part of
Sublessee or any of its agents, contractors, subcontractors, servants,
employees, sublessees, licensees, or invitees;
(c) any accident, injury, or damage to any person or property occurring
in, on, or about the Sublease Premises or any part thereof, unless caused by the
gross negligence or willful misconduct of Sublessor, its employees, or agents;
and
(d) any failure on the part of Sublessee to perform or comply with any
of the covenants, agreements, terms, provisions, conditions, or limitations
contained in this Sublease on its part to be performed or complied with.
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13. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease, or any interest therein, or
further sublease the Sublease Premises, or any part thereof, or permit any other
person to use the Sublease Premises without first obtaining the prior written
consent of both Sublessor and Lessor in accordance with the terms of the Master
Lease. Any attempted assignment, pledge or hypothecation of this Sublease, or
any other attempted subletting of the Sublease Premises without Sublessor's and
Lessor's prior written consents shall be null and void and shall, at the option
of Sublessor, be a default, and terminate this Sublease.
14. SUCCESSORS AND ASSIGNS.
Subject to the restrictions on assignment and subletting by Sublessee,
this Sublease shall be binding upon and shall inure to the benefit of the
parties hereto, their successors, permitted assigns, and legal representatives.
15. ASSUMPTION OF MASTER LEASE PROVISIONS.
All applicable terms and conditions of the Master Lease are
incorporated into and made a part of this Sublease as if Sublessor were the
lessor thereunder, Sublessee the lessee thereunder, and the Premises the Master
Premises. Sublessee assumes and agrees to perform the lessee's obligations under
the Master Lease during the Term to the extent that such obligations are
applicable to the Premises except that the obligation to pay rent to Lessor
under the Master Lease shall be considered performed by Sublessee to the extent
and in the amount rent is paid to Sublessor in accordance with this Sublease.
Sublessee shall not commit or suffer any act or omission that will violate any
of the provisions of the Master Lease. Sublessor shall exercise due diligence in
attempting to cause Lessor to perform its obligations under the Master Lease for
the benefit of
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Sublessee. If the Master Lease terminates, this Sublease shall terminate and the
parties shall be relieved of any further liability or obligation under this
Sublease provided, however, that if the Master Lease terminates as a result of a
default or breach by Sublessee under this Sublease and/or the Master Lease, then
the Sublessee shall be liable to the Sublessor for all damages suffered as a
result of such termination or if it terminates as a result of a breach or
default by Sublessor under the Master Lease, then Sublessor shall be liable to
Sublessee for all damages suffered as a result of such termination.
Notwithstanding the foregoing, if the Master Lease gives Sublessor any right to
terminate the Master Lease in the event of the partial or total damage,
destruction, or condemnation of the Master Premises or the building or project
of which the Master Premises are a part, the exercise of such right by Sublessor
shall not constitute a default or a breach hereunder.
16. DEFAULT.
In the event that Sublessee shall fail to pay, when due, any rental or
other payment required to be paid by Sublessee hereunder or shall fail to
observe or perform any covenant, obligation or condition required to be
performed or observed by Sublessee hereunder, including, but not limited to,
committing any act which may constitute a default of the Lease, and any such
failure shall continue uncured for a period of ten (10) days after written
notice hereof to Sublessee or such other period as provided for in the Lease,
all amounts owed under this Sublease, including unpaid rent, shall become
immediately due and payable and Sublessor shall have the right to terminate this
Sublease, to recover immediate possession of the Sublease Premises, and to
remove all personal property of Sublessee from the Sublease Premises at
Sublessee's cost and expense. In addition, in the event of any default by
Sublessee hereunder, Sublessor shall be entitled to all remedies permitted by
law, and those permitted the Lessor under the Master Lease, including reasonable
attorney's fees, and to enforce all remedies available to Sublessor at law or in
equity, or as set forth
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in the Master Lease, which remedies shall be cumulative, the exercise of one not
to preclude later exercise of another. Sublessor shall not be responsible or
liable for any failure to resublet the Sublease Premises or any part thereof.
17. SUBLESSEE'S INSURANCE.
Throughout the term of this Sublease, Sublessee shall obtain and
maintain through insurance carriers reasonably satisfactory to both Sublessor
and Lessor and licensed to do business in the State in which the Sublease
Premises are located, insurance against claims for personal injury (including
death) and property damage, under a policy of general liability insurance, in
such reasonable minimum amount as is approved by Sublessor from time to time
sufficient to comply with Sublessor's obligations pursuant to the Master Lease.
Sublessee's insurance policy shall name both Sublessor and Lessor as additional
insureds thereunder and provide that such policy cannot be canceled without
thirty (30) days' prior written notice given to both Sublessor and Lessor.
Sublessee shall provide both Sublessor and Lessor with certificates of insurance
or a receipt evidencing payment of premiums for such insurance. Sublessee will
insurance its personal property and improvements.
18. SUBLESSEE'S OBLIGATIONS.
18.01 Premises. Sublessee shall do nothing on the Premises that tends
unreasonably to injure or depreciate the property, or that affects or endangers
Sublessor's or Sublessee's insurance or that it illegal, unlawful, or prohibited
by any law, ordinance, rule, regulation of any applicable public authority, or
which is a nuisance, or disturbs the quiet enjoyment of other lessees. Sublessee
shall not locate any hazardous or toxic materials on the Premises, except for
nominal amounts used in the ordinary course of Sublessee's business.
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18.02 Operation of Business. Sublessee shall conduct its business in
the Sublease Premises continuously during such days and hours customarily
observed by Sublessee.
19. NOTICES.
All notices shall be in writing and shall be delivered in person or by
certified mail at the following address:
Sublessor:
NovaCare, Inc. NovaCare Outpatient
1016 West Ninth Ave. Rehabilitation Division
King of Prussia, PA 19406 1016 West Ninth Avenue
Attention: General Counsel King of Prussia, PA 19406
Attention: President
NovaCare, Inc. Stephen F. Mackell,
1016 West Ninth Ave. General Manager
King of Prussia, PA 19406 Business Development Serv.
Attn: Accounts Payable Manager 625 Ridge Pike, Building E
Conshohocken, PA 19428
Sublessee:
Boomershine Automotive Group, Inc.
2150 Cobb Parkway
Smyrna, GA 30080
20. BROKER PARTICIPATION.
Sublessor and Sublessee warrant and represent that they have dealt with
CB Commercial (representing Sublessor) and The Fulton Group (representing
Sublessee) in connection with this Sublease. Sublessor agrees to pay The Fulton
Group 36.1 percent of the first month's rental plus 4 percent of the remaining
total base rentals ($1,699.59 plus $2,259.84 = $3,959.43). Sublessor agrees to
pay CB Commercial an additional 50 percent of The Fulton Group's fee
($3,959.43/2 = $1,979.72).
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21. ATTORNEY'S FEES.
If Sublessor or Sublessee shall commence an action against the other
arising out of or in connection with this Sublease, the prevailing party shall
be entitled to recover its costs of suit and reasonable attorney's fees, which
shall be set by the Court.
22. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS THE FOLLOWING ITEMS
ARE CONSENTED TO BY LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF:
(a) Landlord shall agree and approve the Sublessee as an approved
Sublessee under the Master Lease, and shall execute the consent attached hereto
and identified as Appendix A.
(b) Landlord agrees and promises for the benefit of the Sublessee that
in the event of a default or breach by the Sublessor of the Master Lease, that
Lessor will provide written notice of said breach or default to the Sublessee
and that Sublessee shall have 20 days from the date of the written notice to
cure the Sublessor's default or breach.
23. SUBLESSOR ACCESS.
Sublessor shall have the right at all reasonable times and after
reasonable prior notice (or without notice, for emergencies) to enter the
Sublease Premises for the purpose of examining the same, providing services or
maintenance, or making repairs, or alterations as the Sublessor shall deem
necessary. However, the foregoing shall not obligate Sublessor to make any
repairs.
24. TERMINATION.
Upon the termination of this Sublease for any cause whatsoever,
Sublessee shall remove Sublessee's trade fixtures and all other personal
property which can be removed without damage to
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the Demised Premises and shall likewise remove such other items as Sublessor
shall designate for removal by Sublessee (such as improvements constructed by
Sublessor during the term of this sublease), upon expiration of the term hereof
(and in such case Sublessee shall be obligated to restore any damage caused
thereby), and shall quit and deliver up the Sublease Premises to Sublessor
peaceably and quietly in as good order and condition as at the inception of the
term of this Sublease (or in such condition as same hereafter may be improved by
Sublessee or Sublessor), reasonable wear and tear, damage by fire or other
casualty, and repairs which are Sublessor's obligation excepted.
25. GENERAL PROVISIONS.
(a) The waiver by Sublessor of breach of any covenant, obligation or
condition set forth herein shall not be deemed to be a waiver of any subsequent
breach of the same or of any other covenant, obligation or condition of this
Sublease.
(b) This Sublease shall be governed by and construed in accordance with
the laws of the State in which the Sublease Premises are located.
(c) This Sublease constitutes the entire agreement between the parties
hereto and may not be modified except by a written instrument executed by the
parties hereto.
(d) If any provision of this Sublease is declared invalid or
unenforceable, the remainder of the Sublease shall continue in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as
of the day, month, and year first above written.
Attest: SUBLESSOR:
NOVACARE OUTPATIENT
REHABILITATION DIVISION EAST, INC.
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By:
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Title:
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Attest: SUBLESSEE:
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By:
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Title: Secretary Treasurer
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