REAL ESTATE LEASE
Exhibit 10.60
REAL ESTATE LEASE
THIS LEASE, entered into by Xxxxxxxx Properties (hereinafter referred to as “Landlord”) and Pyramid Coach, Inc, (hereinafter referred to as “Tenant”) on this 16 day of November 2004 (“Effective Date”).
RECITALS
WITNESSETH THAT Landlord and Tenant, in consideration of their mutual undertakings, agree as follows:
1.
RENT AND OTHER EXPENSES:
Landlord hereby leases to Tenant
and Tenant hereby leases from Landlord certain real estate commonly know as 0000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx (hereinafter referred to as Leased Premises)
and all appurtenances thereto for a term of three (3) years, commencing on
November 12, 2004, and ending on November 30, 2007, unless sooner terminated,
and
(a) |
Rent: Tenant without demand or notice shall pay a monthly rental as
follows: Year 1 beginning December 1, 2004 until November 30, 2005: $5,150 per Month Year 2 beginning December 1, 2005 until November 30, 2006: $5,250 per month Year 3 beginning December 1, 2006 until November 30, 2007: $5,350 per month |
with such amounts due and payable on or before the first day of each month in
advance, at the address of Landlord set forth in this Lease, or such other
address as Landlord by notice shall direct. Tenant shall be granted access to
the Leased Premises upon the Effective Date for the purpose of preparing the
Leased Premises for occupancy. Rent not received by the 5th of the month shall
incur a late fee of five (5%).
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(b) |
Other expenses: Tenant shall be responsible for and shall pay or promptly
reimburse Landlord for all state and local taxes imposed on the Leased Premises
and the cost of casualty insurance on the Leased Premises. Landlord will pay the
real estate taxes and insurance. Tenant shall reimburse Landlord monthly.
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(c) |
Liability insurance: During the lease term, Tenant shall maintain in
force and effect, at its cost and expense, a policy or policies against claims
or demands arising out of or related to Tenant’s use, maintenance,
operation and occupancy of the Leased Premises in an amount of not less than
$500,000 for injuries to one person and $1,000,000 for injuries to more than one
person in one accident. Landlord shall be named as an additional insured for
such policies Tenant shall be responsible for and pay for all utilities used
upon the Premises.
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2. USE,
COMPLIANCE WITH LAWS, SIGNS
The Leased Premises shall be
used by Tenant only for the purposes of: operating a motorcoach leasing business
with offices and maintenance facilities and for no other use or purpose. Tenant
shall keep the Leased Premises in a clean and orderly condition and shall
conduct its business therefrom in a careful and safe manner. Tenant shall not
use the Leased Premises or maintain them in any manner constituting a violation
of any ordinance, statute, regulation, or order of any governmental authority
including without limitation zoning ordinances, nor shall Tenant maintain,
permit or suffer any nuisance to occur or exist on the Leased Premises. Landlord
warrants and represents that the Leased Premises are properly zoned allowing
Tenants to operate a motorcoach leasing business upon the Leased
Premises.
3.
SURRENDER AND HOLDOVER
Upon the expiration or sooner
termination of this Lease Tenant shall surrender to Landlord the Leased
Premises, together with all other property affixed to the Leased Premises
(excepting trade fixtures) broom clean and in the same order and condition in
which Tenant received them, the effects of ordinary wear, acts of God, casualty,
insurrection, riot or public disorder excepted. Unless an event of default as
hereinafter defined has occurred and remains uncurred, Tenant shall prior to the
expiration of the term remove all of Tenant’s trade fixtures and personal
property from the Leased Premises. Any damage to the Leased Premises, caused by
such removal shall be repaired by Tenant prior to the expiration of the temp. If
Tenant shall remain in possession of all or any part of the Leased Premises
after the expiration of the term of this Lease, with the consent of the
Landlord, then the Tenant shall be a Tenant from month to month at the same
rental and subject to all of the other applicable covenants, terms and
conditions hereof.
4.
ALTERATIONS AND MAINTENANCE OF LEASED PREMISES
Tenant shall not cause or permit any alterations, additions or changes of or
upon any part of the Leased Premises without first obtaining the written consent
of Landlord. All alterations, additions or changes to the Leased Premises shall
be made in accordance with all applicable laws and shall become the property of
Landlord.
Landlord, promptly after written
notice from Tenant, shall make all repairs necessary to maintain the following
in the same condition they are now in:
| A. |
The exterior and structural walls (excluding storefronts, doors and glass)
structural floors (excluding floor coverings), foundations, roofs, gutters, and
exterior downspouts of the Leased Premises, |
| B. |
All appurtenances (if any) to the Leased Premises, including, without
limitations, sidewalks, driveways, parking areas and, |
| C. |
Water, sewage, gas and electrical lines from the public mains up to the point of
entry to the Leased Premises, and |
| D. |
If the Leased Premises are an integral part of a larger structure, then to such
portions of the structure which because of its state of disrepair adversely and
materially affects the Tenant’s use of the Leased Premises. |
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except to the extent that the acts or neglect of Tenant its employees or invitees necessitates such repairs. Tenant shall make all other repairs not required to be made by Landlord to maintain the Leased Premises in the same condition they are now in. Tenant accepts the Leased Promises in their present condition, except for certain alterations/modifications on Exhibit “A,” which is attached hereto and made a part hereof by reference. Tenant shall not be obligated under this provision to repair any injury to the Leased Premises resulting from fire or other casualty.
5.
DESTRUCTION
If the Leased Premises should be
damaged or destroyed by fire or other cause to such extent that the cost of
repair and restoration would exceed 30 percent of the amount it would cost or
replace the Leased Premises in their entirety at the time such damage or
destruction took place, then Landlord shall have the right to cancel this Lease
by giving Tenant notice of such election within thirty (30) days after the
occurrence of such damage or destruction and this Lease shall terminate as of
fifteen (15) days after the date such notice is given. If Landlord fails to
exercise this option to terminate then Landlord shall at its expense promptly
repair and restore the Leased Premises to substantially the same condition they
were in prior to the damage or destruction.
If the Leased Premises should be
damaged or destroyed by fire or other cause to such an extent that the costs of
repair and restoration would be less than 30 percent of the amount it would cost
to replace the Leased Premises in their entirety at the time such damage or
destruction took place, then this Lease shall not terminate and the Landlord
shall at its expense promptly repair and restore the Leased Premises to
substantially the same condition they were in prior to the damage or
destruction.
If the Leased Premises are an
integral part of a larger structure and if the structure should be damaged or
destroyed by fire or other cause to such an extent that the cost of repair and
restoration would exceed 30 percent of the amount it would cost to replace the
structure in its entirety at the time such damage or destruction took place and
notwithstanding that the Leased Premises may be unaffected by such damage or
destruction, then Landlord shall have the right to cancel this Lease by giving
Tenant notice of such election within thirty (30) days after the occurrence of
such damage or destruction and this Lease shall terminate fifteen (15) days
after the date such notice is given.
In the event the Leased Premises
are damaged or destroyed the rents herein provided, or a fair and equitable
portion thereof, shall be abated until such time as the Leased Premises are
repaired and restored. The term of this Lease shall he extended for a period
equal to the period during which there has been a complete abatement of rent.
The opinion of an architect or registered engineer appointed by Landlord as to
the costs of repair, restoration or replacement shall be controlling upon the
parties. Landlord’s obligations to restore or repair does not include
fixtures or improvements installed or owned by Tenant.
6.
CONDEMNATION
If the entire Leased Premises,
or such portion thereof as will make the remainder unsuitable for the use
permitted by this Lease, is condemned by any legally constituted authority, or
if a conveyance or other acquisition in lieu of such condemnation is made, then
this Lease shall terminate as of the date possession is required by the
condemnor. If a portion of the Leased Premises is condemned but the remainder is
still suitable for the use permitted by this Lease, this Lease shall not
terminate but a portion of the rent fox the rest of the term shall be abated in
proportion to the amount of the Leased Premises taken. All compensation paid in
connection with the condemnation shall belong to and be the sole property of
Landlord, except Tenant shall be entitled to any compensation awarded for
Tenant’s trade fixtures and for moving expenses.
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7.
MECHANIC’S LIEN
Tenant shall not permit a
Mechanic’s Lien, or similar such filing, to attach to the Leased Premises
or any part thereof by reason of labor, services or materials claimed to have
been performed or furnished to or for Tenant. If such Mechanic’s Lien shall
be filed, Landlord at its option may compel the prosecution of an action for the
foreclosure of such Mechanic’s Lien by the lienor. If any such
Mechanic’s lien shall be filed and an action commenced to foreclose the
lien, Tenant, upon demand by Landlord, shall cause the lien to be released by
the filing of a written undertaking with a surety approved by the Court and
obtaining an order from the Court releasing the property from such
lien.
8.
INDEMNIFICATION AND RFLEASE
Regardless of whether or not,
separate, several, joint or concurrent liability may be imposed upon Landlord,
Tenant shall indemnify and hold harmless Landlord from and against all damages,
claims and liability arising from or connected with Tenant’s control or use
of the Leased Premises, including without limitation, any damage or injury to
person or property. This indemnification shall not include any matter for which
the Landlord is effectively protected against by insurance. If Landlord shall,
without fault, become a party to litigation commenced by or against Tenant, then
Tenant shall indemnify and hold Landlord harmless. Tenant does hereby release
Landlord from all liability for any accident, damage or injury caused to person
or property on or about the Leased Premises, whether due to negligence on the
part of Tenant and notwithstanding whether such acts or omissions be active or
passive. Landlord and Tenant do each hereby release the other from all liability
for any accident, damage or injury caused to person or property, provided, this
release shall be effective only to the extent that the injured or damaged party
is insured against such injury or damage and only if this release shall not
adversely affect the right of the injured or damaged party to recover under such
insurance policy.
9.
EVENTS OF DEFAULT
Any of the following shall be
deemed an Event of Default:
A. |
The failure to pay any installment of rent when the same becomes due and the
failure continues for 30 days. |
B. |
Tenant’s failure to perform or observe any other covenant, term or
condition of this lease to be performed or observed by Tenant and if curable,
the failure continues for 30 days after notice thereof is given to
Tenant. |
C. |
Abandonment of the Leased Premises. |
D. |
The filing or execution or occurrence of: |
| (1) |
An involuntary petition in bankruptcy against Tenant and the failure of Tenant,
in good faith, to promptly commence and diligently pursue action to dismiss the
petition. |
| (2) |
A petition against Tenant seeking a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or other relief of the same or different
kind under any provision of the Bankruptcy Act, and the failure of Tenant in
good faith to promptly commence and diligently pursue action to dismiss the
petition. |
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| (3) |
A general assignment for the benefit of creditors by Tenant. |
| (4) |
The taking by any party of the leasehold created hereby, or any part thereof,
upon foreclosure, levy, execution, attachment or other process of law or equity. |
10. |
LANDLORD’S REMEDIES |
A. |
Upon the occurrence of any Event of Default Landlord may, at its option, in
addition to any other remedy or right it has hereunder or by law: |
| (1) |
Re-enter the Leased Premises, without demand or notice, and resume possession by
an action in law or equity or by force or otherwise and without being liable in
trespass or for any damages. Landlord may remove all persons and property from
the Leased Premises and such property may be removed and stored at the cost of
Tenant. |
| (2) |
Terminate this Lease at any time upon the date specified in a notice to Tenant.
Tenant’s liability for damages shall survive such termination. Upon
termination such damages recoverable by Landlord from Tenant shall be an amount
equal to “Liquidated Damages.” |
“Liquidated Damages” means an amount equal to the monthly rental for a
period of sixty (60) days. |
| B. |
Upon the occurrence of any of the following: |
| (1) |
The filing of a voluntary petition in bankruptcy by Tenant. |
| (2) |
The filing of a petition or answer by Tenant seeking a reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other relief
of the same or different kind under any provision of the Bankruptcy Act. |
| (3) |
An adjudication of Tenant as a bankrupt or insolvent. |
| (4) |
The appointment of a trustee, receiver, guardian, conservator or liquidator of
Tenant with respect to all or substantially all of its property this Lease shall
terminate ipso facto as of such occurrence and the Leased Premises shall be
surrendered as required by Section 3. Tenant’s liability for damages shall
survive such termination and Landlord shall be entitled to recover an amount
equal to Liquidated Damages as defined above or an amount equal to the maximum
allowed by an statute or rule of law in effect at the time when and governing
the proceedings in which such amount is sought, whichever is less. |
11.
ADVANCES AND INTEREST
Upon the occurrence of any Event
of Default, Landlord may, if such default has not been cured, cure that default
for the account and at the expense of Tenant. If Landlord in curing such default
is compelled to pay or elects to pay any sum of money or do any acts which will
require the payment of any sum of money, the sum so paid or incurred shall be
reimbursed by Tenant upon demand by Landlord.
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12.
ACCESS BY LANDLORD TO LEASED PREMISES
Landlord, Landlord’s
agents, and Landlord’s prospective Tenants, purchasers or mortgagors shall
be permitted to inspect and examine the Leased Premises at all reasonable times
and Landlord shall have the right to make any repairs to the Leased Premises
which Landlord may deem necessary, but this provision shall not be construed to
required Landlord to make repairs except as is otherwise required hereby. For a
period commencing six (6) months prior to the expiration of the term of this
Lease, Landlord may maintain “For Rent” signs on the front or on any
part of the Leased Premises.
13.
QUIET ENJOYMENT
If Tenant
shall perform all of the covenants and agreements herein provided to be
performed on Tenant’s part, Tenant shall, at all times during the term,
have the peaceable and quiet enjoyment of possession of the Leased Premises
without any manner of hindrance from Landlord or any parties lawfully claiming
under Landlord.
14.
SECURITY PAYMENT
The sum of
$5,150.00 is hereby paid by Tenant as security (and not as a payment of rental,
final or otherwise) for the .full and faithful performance by Tenant of all of
its duties under this Lease and without any liability on Landlord for interest.
Upon an Event of Default as heretofore defined, Landlord may apply such sum to
any liability, costs or damages caused Landlord without waiving or limiting its
right to further hold Tenant for liability, costs or damages otherwise due.
Within fifteen (15) days after the termination of this Lease, Landlord shall
repay to Tenant all or such part of the sum paid as security as Tenant shall be
entitled to.
15.
GENERAL AGREEMENT OF PARTIES
This Lease shall extend to and
be binding upon the heirs, personal representatives, successors and assigns of
the parties. This provision, however, shall not be construed to permit the
assignment of this Lease except as may be permitted hereby. When applicable, use
of the singular form of any wore shall mean or apply to the plural and the
neuter form shall mean or apply to the feminine or masculine.
The captions and article numbers
appearing in this Lease are inserted only as a matter of convenience and are not
intended to define, limit, construe or describe the scope or intent of such
provisions. No waiver by Landlord of any default by Tenant shall be effective
unless in writing, not operate as a waiver of any other default or of the same
default on a future occasion. Landlord’s acceptance of rent shall not
deemed a waiver as to any proceeding default. Any notices to be given hereunder
shall be deemed sufficiently given when in writing and (a) actually served on
the party to be notified or (b) placed in an envelope directed to the party to
be notified at the following addresses ant deposited in the United States mail
by certified or registered mail, postage prepaid:
| If to Landlord: | Xxxxxxxx Properties |
| If to Tenant: |
Pyramid Coach, Inc. Attn: Xxxx Xxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxxx, XX 00000 |
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| With a copy: |
Xxxx X. Xxxxx, Esq. 000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxxx, XX 00000 |
Such addresses may be changed by either party by written advise as to the new address given as above provided. If there is more than one Tenant, their obligation shall be joint and several. This Lease shall not he recorded.
16.
REAL ESTATE BROKERS.
Landlord and Tenant hereby
acknowledge that Nashville Commercial Real Estate Services represents the
Landlord and The Xxxxxxx Group, Inc. represents the Tenant. NCRES and the
Xxxxxxx Group will equally split a six (6%) percent real estate commission paid
by the Landlord over the life of this lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on this 16 day of November, 2004, and if this Lease is executed in counterparts, each shall be deemed an original.
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XXXXXXXX PROPERTIES Signature /s/ Xxxx X. Xxxxxxxx Printed Xxxx X. Xxxxxxxx |
PYRAMID COACH, INC. Signature /s/ Xxxx Xxxxx Printed Xxxx Xxxxx, Chairman |
| STATE OF INDIANA | ) | |
| ) | SS: | |
| COUNTY OF XXXXXX | ) |
Before me a Notary Public in and for said County and State personally appeared Xxxx Xxxxx, chairman of the Board of Pyramid Coach, Inc. who acknowledged the execution of the foregoing Real Estate Lease.
Witness my hand and Notarial Seal this 16th day of November, 3004.
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My Commission Expires: June 27, 2008 |
Signature: /s/ Xxxxxxxx X. Xxxxx Printed Xxxxxxxx X. Xxxxx Residing In Xxxxxx County, Indiana |
This instrument was prepared by Xxxx X. Xxxxx, Attorney at Law.
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EXHIBIT A
Landlord will make the following improvements for property at 0000 Xxxxxx Xxxxxx.
1)
Install two (12’x 14’) drive-in doors at the front of the building
2)
Demolish interior office space in the warehouse.
3)
Fence the side parking
lot.
The cost of installing the drive-in doors will be amortized over the life of the lease at 8%.
