LEASE AGREEMENT
This
Lease Agreement is made as of this 5th day of January 2006, by and between
Bi-State Group, LLC (“Landlord”) and American Trailer & Storage, Inc.
(“Lessee”).
Recitals
| A. |
Landlord
owns real estate commonly known as 000 X. 00xx
Xxxxxx, Xxxx Xx. Xxxxx, XX consisting of approximately 6
acres.
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| B. |
Lessee
desires to Lease a portion of such real estate, together with any
improvements thereon and the right to use all adjacent parking areas,
sidewalks and means of ingress and egress (the “Leased Premises”). The
Leased Premises shall consist of one office space of approximately
650
square feet in the building as marked in Exhibit 1 and Exhibit 2 with
access to shared restroom facilities, and all of the parking lot space
on
the property as marked in Exhibit 2, approximately 4.75 acres, leaving
enough space around the building for shared access by other tenants
of the
building.
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| C. |
Lessee
also desires exclusive use of one (1) forklift capable of lifting one
(1)
empty 40’ ISO shipping container. The Leased Premises shall also include
exclusive use of the forklift by the Lessee during Lessee’s normal
business hours.
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NOW,
THEREFORE, in consideration of the mutual promises hereinafter set forth, the
parties agree as follows:
| 1. |
DEMISE.
Landlord hereby leases the Leased Premises to Lessee and Lessee hereby
leases same from Landlord on the terms and conditions set forth
herein.
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| 2. |
TERM.
The term of this Lease shall commence on January 1, 2006 (the Commencement
Date”), and shall end on December 31, 2008 (the “Initial Term”), subject
to the Landlord and Lessee’s option to extend the term in accordance with
paragraph 21. The “term of this Lease,” as used herein, includes any
extension provided for in paragraph 21. Notwithstanding anything to
the
contrary herein, the term of this Lease shall expire on the last day
of
the third (3rd)
calendar month after the Lessee gives written notice of its intent
to
terminate.
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| 3. |
CONDITION
OF LEASED PREMISES. Lessee acknowledges inspection of the Leased Premises
and accepts the same in their present state and condition; provided,
however, Landlord shall paint the walls in the office space, install
new
carpet in the office space, ensure proper functioning of the HVAC system
and toilet/bathroom facilities, level parking lot, remove equipment
not
owned by Lessee from parking lot, and remove rubbish and other items
not
owned by Lessee from the parking lot, in workmanlike fashion, and such
work/inspections shall be completed on or before January 1,
2006.
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| 4. |
RENT.
Lessee shall pay as monthly rent as
follows:
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$3,912.00
per month through December 2008,
$4,100.00
per month beginning January 2009 through December 2010;
$4,300.00
per month beginning January 2011 through December 2012.
Rent
for
January 2006 shall be payable on January 10, 2006, and, thereafter, and on
the
10th
day of
each month. Should this Lease commence on a day other than the first day of
the
month or terminate on a day other than the last day of the month, rent for
such
partial month shall be prorated based on a 365 day year and shall be payable
on
the first day of the calendar month next succeeding such partial
month.
| 5. |
USE.
The Leased Premises may be used for the Lessee’s portable
storage/equipment rental and leasing business and any other lawful
purpose.
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| 6. |
UTILITIES/SERVICES.
Landlord agrees to pay, before delinquency, all charges for gas,
electricity, water and sewer.
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| 7. |
TAXES.
Landlord agrees to pay punctually all taxes levied against the Leased
Premises during the term of this Lease.
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| 8. |
MAINTENANCE.
Landlord shall maintain and make all necessary repairs to the structural
elements of all buildings on the Leased Premises, including the roof
and
the exterior walls of such buildings. Landlord shall also maintain
and
make all necessary repairs to the Forklift to ensure safe and proper
operation. Except as otherwise provided in this paragraph 8 and in
paragraph 9 with respect to an “Insurable Casualty” (as hereinafter
defined), Lessee shall keep the Leased Premises in a reasonable condition
and repair, including (without limitation), interior fixtures, walls,
floors and ceiling, and all installations made by Lessee, ordinary
wear
and tear and excepted.
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| 9. |
CASUALTY
DAMAGE AND INSURANCE. Landlord shall procure and, at all times during
the
term of this Lease, maintain fire and extended insurance coverage on
the
Leased Premises for its reasonable and insurable value. Landlord shall
list Lessee as an additional insured on said policies. If the Leased
Premises is rendered substantially unfit in Lessee’s sole discretion for
occupancy by an incident insurable under Landlord’s fire and extended
coverage insurance policy (an “Insurable Casualty”), either party shall
have the option to terminate this Lease effective as of the date of
the
occurrence by giving written notice to the other party within fourteen
(14) calendar days after the occurrence of the Insurable Casualty.
If
neither party gives timely written notice of termination, Landlord
shall
promptly and diligently restore the Leased Premises to the condition
existing prior to the occurrence of the Insurable Casualty at its sole
cost and expense, and rent shall xxxxx until restoration is substantially
complete. Should Landlord fail to substantially complete restoration
within sixty (60) calendar days from the date of the occurrence of
the
Insurable Casualty, Lessee shall have the option to cancel and terminate
this Lease by giving the Landlord written notice within seven (7) calendar
days of the expiration of such sixty (60) day period. If after the
Insured
Casualty occurs Lessee determines in its sole discretion that the Leased
Premises are fit for its occupancy and/or use, Landlord shall promptly
restore the Leased Premises at Landlord’s expense to the condition
existing prior to the occurrence of the Insurable Casualty, with no
abatement of rent.
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| 10. |
LESSEE’S
INSURANCE. Lessee agrees at Lessee’s expense to maintain in force
continuously throughout the term of this Lease employer’s liability and
comprehensive general and public liability insurance coverage against
claims for death, personal injury or property damage occurring on,
in or
about the Leased Premises or arising from any condition or activity
thereon, which insurance shall be underwritten by an insurer acceptable
to
Landlord and shall have combined single limits of liability at least
One
Million Dollars ($1,000,000.00) per occurrence. In addition, Lessee
shall,
at its expense, maintain in force continuously throughout the term
of this
Lease insurance covering loss or damage to all personal property and
fixtures of Lessee in the Leased
Premises.
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| 11. |
COMPLIANCE
WITH LAWS. Lessee shall obtain all licenses, permits or approvals of
governmental authorities required for use and occupancy of the Leased
Premises and shall comply with all applicable and valid laws, ordinances,
regulations, and permits, as now or hereafter amended, of Federal,
state,
county, municipal or other lawful authorities pertaining to use of
the
Leased Premises.
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| 12. |
ASSIGNMENT
AND SUBLETTING; BINDING EFFECT. Without prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed,
Lessee shall not assign this Lease or sublease the entire Leased Premises,
in whole or in part. Except as otherwise provided in this paragraph
12,
this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representative, successors
or
assigns. Lessee may sublease part of the parking lot space to its
customers for the purpose of storing same trailers, containers, or
other
such transportation equipment.
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| 13. |
EMINENT
DOMAIN. If all of the Leased Premises are taken under the power of
eminent
domain or conveyed under threat of condemnation proceedings or if only
a
part of the Leased Premises are so taken or conveyed and Lessee determines
the remainder is inadequate or unreasonable, then, in either such event,
this Lease shall terminate effective as the date Lessee is required
to
give up the right to occupy or use any party of the Leased Premises.
Lessee shall have no claim against Landlord or against the proceeds
of the
conveyance or the condemnation award, regardless of whether termination
of
this Lease results. If this Lease is not terminated as provided in
this
paragraph 13, Landlord and Lessee shall agree upon an equitable reduction
of the rent.
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| 14. |
ATTORNEYS’
FEES. In any suit or other proceeding to enforce any covenant or agreement
of this Lease or for the breach of any covenant or agreement herein
contained, the prevailing party shall be entitled to recover litigation
expenses incurred, including reasonable attorneys’ fees and other related
costs and expenses. In addition, should either party reasonably incur
legal expenses as a result of involvement in a bankruptcy proceeding
commenced by or against the other party, including any action with
respect
to assumption or assignment of this Lease, or a mortgage foreclosure
or
comparable proceeding arising from the other party’s alleged default in
payment of any loan or other obligation, then such other party shall
pay
all expenses and costs so incurred, including reasonable attorneys’
fees.
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| 15. |
DEFAULT.
In the event Lessee shall default in the performance or observance
of any
covenant or agreement of this Lease and fail to cure such default within
ten (10) calendar days after the giving of written notice thereof as
to
payment of rent and ninety (90) calendar days after the giving of such
written notice with respect to any other default, Landlord shall have
the
right to terminate this Lease and obtain immediate possession of the
Leased Premises and Lessee shall be given thirty (30) calendar days
to
remove all property from the Leased
Premises.
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In
the
event Landlord shall default in the performance or observance of any covenant
or
agreement of this Lease, Lessee shall promptly notify Landlord in writing.
If
Landlord shall fail to cure such default within seven (7) calendar days after
receipt of such written notice or, if the default is of such character as to
require more than seven (7) calendar days to cure and Landlord shall fail to
commence to do so within fourteen (14) calendar days after the giving of such
written notice and thereafter diligently proceed to cure such default, then,
in
any such event, Lessee shall have the right to terminate this Lease effective
as
of the date on which written notice of default is given or cure such default,
in
which case any resulting expense shall be deducted from the rent otherwise
due.
All
remedies available to either party, whether expressly provided herein or
otherwise available at law or in equity, shall be deemed cumulative, and the
exercise of one or more of such remedies shall not preclude the exercise of
any
other. No delay or omission on the part of either party in exercising any power
or right hereunder shall impair such right or power to be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any power or right hereunder by either party preclude later full
exercise thereof or exercise of other power or right.
| 16. |
LANDLORD’S
COVENANTS. Subject to paragraph 17 hereof, Landlord covenants that
is has
good and marketable title to the Leased Premises in fee simple absolute
and that the same are not subject to any leases, tenancies, agreements,
encumbrances, liens, restrictions or defects in title materially affecting
the Leased Premises or the rights granted Lessee in the Lease. Lessee,
upon paying the rent and performing the other covenants and agreements
of
this Lease, shall quietly have, hold and enjoy the Leased Premises
and all
rights granted Lessee in the Lease throughout the term of this
Lease
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| 17. |
SUBORDINATION.
Lessee hereby agrees that its leasehold interest hereunder is and shall
remain subordinate to any mortgages now on, or hereafter to be placed
on,
the Leased Premises; provided that, as a condition precedent to
subordination of mortgages placed on the Leased Premises hereafter,
the
mortgages shall expressly covenant or the mortgage shall expressly
provide
that so long as Lessee is not in default under this Lease, the Lessee’s
quiet enjoyment of the Leased Premises shall remain undisturbed, on
the
terms and conditions stated herein, whether or not the mortgage is
in
default and notwithstanding any foreclosure or other action brought
by the
holder of the mortgage. This subordination agreement shall be
self-operative and no further instrument or certificate of subordination
shall be required from the Lessee.
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| 18. |
LANDLORD’S
RIGHT OF ENTRY. Landlord, its agents or employees shall be permitted
to
enter the Leased Premises at all reasonable times for the purposes
of
inspection or repairing same. Except in case of an emergency, Landlord
shall give Lessee at least 24 hours advance written notice of any
inspection.
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| 19. |
NOTICES.
All notices, requests, demands and/or any other communications required
or
permitted hereunder shall be in writing and shall be deemed to have
been
duly given on the date of personal delivery by hand or on the send
(2nd)
business day after being mailed by certified mail, return receipt
requested, with postage prepaid, and addressed as follows (or to such
other address as Landlord or Lessee shall, from time to time, specify
in a
written notice given pursuant to this
paragraph):
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| (a) |
If
to Landlord:
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ATTN:
Xxxx Xxxx
Bi-State
Group, LLC
#0
Xxxx
Xxxx Xxxxx
Xxxx
Xx.
Xxxxx, XX 00000
| (b) |
If
to Lessee:
|
ATTN:
Xxxx Xxxxx
American
Trailer & Storage, Inc.
0000
Xxxxxxxxxx Xxxxxxxxxx
Xxxxxx
Xxxx, XX 00000
| 20. |
COMPLETE
AGREEMENT. This instrument contains a complete and final expression
of the
agreement between the parties. Neither party has made or relied on
any
promise, warranty, representation or inducement which is not expressly
stated herein. This instrument results from negotiation and review
deemed
adequate by the parties, and, therefore, neither party alone shall
be
deemed the drafter hereof and this instrument shall not be construed
for
or against either party.
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| 21. |
EXTENSION
OF TERM. Provided Lessee in not in default and this Lease is otherwise
in
force and effect, Lessee shall have the option to extend the term of
this
Lease for two (2) consecutive periods of two (2) years each (an “Option
Term”). Lessee shall be deemed to have exercised an option to extend the
term of this Lease for an Option Term unless, no later than ninety
(90)
calendar days before expiration of the Initial Term or the preceding
Option Term, as the case may be, Lessee gives Landlord written notice
that
Lessee does not elect to extend. Except as otherwise provided in paragraph
4, all of the terms, covenants and agreements contained in this Lease
shall remain in effect during each Option
Term.
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| 22. |
| 23. |
FORKLIFT.
Landlord shall also make available to Lessee for Lessee’s exclusive use
during Lessee’s business hours one (1) forklift capable of lifting one (1)
empty 40’ ISO shipping container.
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IN
WITNESS WHEREOF, the parties have executed this Agreement in duplicate original
as of the date first above written.
LANDLORD: LESSEE:
BI-STATE
GROUP LLC AMERICAN
TRAILER & STORAGE, INC
BY:
//s//
Xxxx Xxxx BY:
//s//
Xxxxxxx X. Xxxxx, XX
ITS:
Vice
President ITS:
President
