EXHIBIT 10.32
GROUND LEASE
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THIS LEASE made and entered into as of this 7th day of February, 1997,
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by and between LAND TRUST NO. 898 MAGNA BANK, TRUSTEE, formerly GRANITE
CITY NATIONAL BANK, TRUSTEE, hereinafter referred to as "Lessor", and GATEWAY
INTERNATIONAL MOTORSPORTS CORPORATION, a corporation organized and existing
under the laws of Illinois, hereinafter referred to as "Lessee."
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WITNESSETH:
FACTS, Lessor is the owner of certain unimproved real property consisting
of approximately 14.285 acres more or less located in the City of Madison,
County of St. Clair, State of Illinois. The tract of land lies east of Madison
Street and is the crosshatched area as shown on Exhibit A attached hereto and
made a part hereof. This unimproved real property is hereinafter referred to as
the "Premises."
Lessee desires to lease the Premises from Lessor on the following
covenants and conditions;
NOW, THEREFORE, the parties, in consideration of the mutual covenants
contained herein, agree as follows:
1. Lease of Premises.
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Lessor does herewith lease the Premises to the Lessee for the term and
on the covenants and conditions and for the rental as set forth in this Lease.
2. Use of Premises.
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The Premises may be used by the Lessee only for a parking lot and
storage area during the term of the Lease.
3. Term.
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The term of this Lease shall be for a period of five (5) years
starting on the 1st day of March, 1997, and terminating on the last day of
February, 2001 ("Initial Term").
4. Rental.
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Lessee shall pay to Lessor an annual rental during the term of this
Lease in the sum of [*] payable in equal monthly installments of [*] starting on
March 1, 1997, and a like sum on the first day of each following month with last
monthly payment payable on February 1, 2001.
5. Taxes and Assessments.
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Lessee shall pay when due, or reimburse Owner upon demand, if the same
are levied against Owner, before delinquency, any and all taxes, assessments,
license fees, and public charges, of whatever kind or nature, levied or assessed
by any governmental authority against the Premises or the Lessee's business on
the Leased Premises or based upon the Lessee's leasehold improvements or any
other personal property on the Premises. In the event the Premises are not
separately assessed but are a part of a larger parcel for assessment purposes,
then the Lessee shall prorate and pay a fractional amount due on total amount of
land in the entire assessed parcel. The numerator of the fraction shall be the
square footage of the Premises and the denominator shall be the square footage
of the assessed Parcel, for the tax year in which the Lease
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* Indicates certain confidential information has been omitted. The confidential
information that has been omitted has been filed separately with the SEC and
Confidential treatment sought.
commences or terminates. The tax charge to the Lessee shall be prorated. The
real estate taxes assessed in Illinois are payable in the year after the year in
which they are assessed. Upon the termination of the Lease the Lessee shall, on
the first day of the last month of the Lease, pay the taxes for the short year
of termination based upon the previous years assessment.
6. Utilities. Other Services.
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Lessee shall pay for all utility and other services provided and used
in the Premises. All utilities and other services shall be contracted for in the
name of Lessee and billed to Lessee. Lessee shall post any required bond or
security.
7. Indemnity, Liability Insurance, Casualty Insurance.
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7.1 Lessee will indemnify and save Lessor harmless from and against any
and all claims, suits, actions and damages arising during the term of this Lease
for any personal injury, loss of life or damage to property, sustained in or
about the Premises and any improvements constructed thereon by Lessee, and which
results from Lessee's conduct of its business and/or the occupancy of the
Premises by Lessee, its agents, guests or invitees. Lessor agrees to give Lessee
reasonable notice of any action or claim which has or may be instituted against
Lessor by reason of any such claim, and to permit Lessee, if Lessee so elects,
at its own cost and expense, to engage counsel of its own choice and participate
in the defense of any such action.
7.2 Lessee agrees throughout the term of this Lease to maintain public
liability, property damage, and parking lot insurance covering the Premises in
limits of not less than One
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Million Dollars ($1,000,000.00) combined single limited bodily injury insurance
and property damage insurance. Further, the Lessee shall maintain during the
term of this Lease an umbrella policy in the amount of another One Million
Dollars ($1,000,000.00). Lessor shall be named as additional insured on all such
liability insurance. Lessee shall furnish to the Lessor a certificate evidencing
the parties insured and the type of insurance and the policy limits.
7.3 The insurance policies and certificates shall include a covenant that
at least thirty (30) days prior to any cancellation, change, modification or
renewal of the insurance policy, the insurance company shall give written notice
to Lessor. All insurance required under this paragraph shall be with insurance
companies authorized to do business in the State of Illinois, and shall have an
equivalent to a Best's financial rating of V or higher and a policyholder's
rating of at least A.
8. Development of Premises.
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8.1 Lessee shall at its costs develop the Premises so that it may
effectively be used as a parking lot. The Lessor agrees that starting January 1,
1997, the Lessee shall have the right to enter upon the Premises to grade, level
and lay down surfaces adequate for parking, provided that the indemnity
insurance called for in paragraph 7 above is in effect during this period of two
months before the start of the Initial Term of this Lease.
8.2 All improvements placed on the Premises shall be subject to the terms
of this Lease and title to the improvements
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shall vest in Lessor and, upon the termination of the Lease, the improvements
shall become the property of Lessor.
9. Repairs and Maintenance.
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Lessee agrees that it will, at its sole cost, keep and maintain the
Premises in a good state of repair and in a safe condition.
10. Compliance with Laws.
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Lessee shall, during the term of this Lease, at its own expense,
reasonably and promptly observe and comply with all laws, orders, regulations,
rules, ordinances and requirements of the Federal, State, County, City and other
municipal governments, or any subdivisions thereof, having jurisdiction over the
Premises and Lessee's operations. Lessee agrees to pay all costs, expenses,
claims, fines, penalties and losses that may arise out of or be imposed because
of the failure of Lessee to comply therewith.
11. Subletting and Assignment.
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This Lease is not assignable by Lessee, nor shall the Premises or any
part thereof be sublet, used or permitted to be used for any purpose other than
above set forth without the written consent of Lessor. If this Lease is assigned
or the Premises or any part thereof sublet without the written consent of
Lessor, this Lease may, by such unauthorized act, be canceled at the option of
Lessor. Any assignment of this Lease or subletting of the Premises or any part
thereof with the written consent of Lessor shall not operate to release Lessee
from the fulfillment on Lessee's part of the covenants and agreements herein
contained to be performed by
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said Lessee, nor authorize any subsequent assignment or subletting without the
written consent of Lessor.
12. Lessor's Right to Cure Defaults.
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If Lessee shall default in the performance of any of the agreements
herein contained, Lessor may, but shall not be obligated to, perform the same
for the account of Lessee. Any amount paid or expense or liability incurred by
Lessor in the performance of any such matter for the account of Lessee shall be
deemed to be additional rent and the same (together with interest thereon at the
rate of one and one-quarter percent (1-1/4%) per month from the date upon which
any such expense shall have been incurred) may, at the option of Lessor, be
added to any rent then due or thereafter falling due hereunder.
13. Eminent Domain.
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If any part of the Premises shall be taken or condemned for public or
quasi-public use, and a part thereof remains which is susceptible of occupation
hereunder, the Lease shall, as to the part so taken, terminate as of the date
title shall vest in the condemnor, and the rent payable hereunder shall be
adjusted so that Lessee shall be required to pay for the remainder of the term
only such portion of such rent as the square footage of the part remaining after
condemnation bears to the square footage of the entire Premises at the date of
condemnation. If all of the Premises be taken or condemned, or such part thereof
so that there does not remain a portion susceptible for occupation hereunder,
then this Lease shall thereupon terminate. All compensation awarded by reason of
a condemnation or taking of the
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Premises shall belong to Lessor and Lessee shall have no claim thereto, and
Lessee hereby irrevocably assigns and transfers to Lessor any right to
compensation or damages to which Lessee may become entitled during the term
hereof by reason of any condemnation. For special provisions of recoupment of
money spent by Lessee for improvements to the Premises, see Paragraph 23.2
14. Quiet Enjoyment.
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Lessor hereby covenants that Lessee, upon paying the rent as herein
reserved and performing all the covenants and agreements herein contained on the
part of Lessee, shall and may peaceably and quietly have, hold and enjoy the
Premises hereby demised without hinderance or interruption by Lessor or by
anyone claiming lawfully or equitably by, through or under Lessor.
15. Mechanics' Liens.
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Lessee agrees that if mechanics' liens shall attach to the Premises or
any part thereof, based upon work performed by Lessee or materials furnished or
work done by Lessee during the term of this Lease, Lessee will pay or discharge
the same within ten (10) days after Lessee receives notice of said lien by
Lessor, if so notified, or by the party filing such lien, or secure Lessor by
posting security or an indemnity bond satisfactory to Lessor.
16. No Representation by Lessor.
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Lessee acknowledges that Lessor has made no representation with
respect to the physical condition of the Premises, or that they may be used for
any purpose other than as stated herein and Lessee takes the Premises in an "AS
IS" condition.
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17. No Waiver.
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No waiver of any covenant or condition in this Lease contained or of
any breach of any such covenant or condition, shall be taken to constitute a
waiver of any subsequent breach of such covenant or condition, or to justify or
authorize the nonobservance, on any other occasion, of the same, or of any other
covenant or condition hereof, nor shall the acceptance of rent by Lessor at a
time when Lessee is in default under any covenant or condition hereof be
construed as a waiver of such default, or of Lessor's right to terminate this
Lease on account of such existing default. It is the express understanding and
agreement of the parties that if at any time Lessee should be in default in any
of the covenants and conditions of this Lease, an acceptance by Lessor of rent
accruing under this Lease during the continuance of such default shall not be
construed as a waiver of such default, but that Lessor may, at any time
thereafter, in case such default continues, forfeit and terminate this Lease, on
account of such default, or exercise any of its other remedies, in the manner
herein provided.
18. Default by Lessee.
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18.1 In the event that Lessee shall default,
(a) in the payment of rent when due, and such default shall continue
for a period of ten (10) days after written notice of failure to pay such amount
has been given by Lessor to Lessee;
(b) in the performance of any of the other terms, conditions,
covenants or provisions of this Lease, and any such
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default shall continue for more than twenty (20) days after written notice of
such failure by Lessor to Lessee, or if, by reason of the nature of such
default, it cannot with reasonable diligence be corrected within twenty (20)
days, then, if Lessee shall not commence to correct such default within said
twenty (20) days and thereafter prosecute the work of correcting the same with
reasonable diligence; or
18.2 If the Lessee makes an assignment for the benefit of creditors or a
receiver or an assignee for its property shall be appointed in any proceeding
other than a bankruptcy proceeding, then Lessor may in addition to any other
rights or remedies provided by law pursue any one or more of the following
remedies:
(a) Terminate this Lease by serving upon Lessee a written notice
stating that the term hereof shall expire upon a date specified in said notice.
The date shall not be less than ten (10) days after the date of the giving of
such notice by Lessor to Lessee, and the term of this Lease shall thereupon
expire upon the date so specified. Lessor shall be entitled to and may demand
immediate possession of the Premises, any other notice or demand being hereby
waived.
(b) Enter and take possession of the Premises. Lessor may expel or
remove Lessee and any other person who may be occupying the Premises or any part
thereof, without terminating this Lease and without relieving Lessee from its
obligation to pay rent. Lessor may then relet the Premises in the name of Lessor
or Lessee at any rental readily obtainable, and if such rent exceeds the rent
then paid by Lessee, Lessor may retain the difference. If
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such rental is less than the rent paid by Lessee, Lessee shall pay
to Lessor upon demand the deficiency.
18.3 In the event Lessee seeks relief under Title 11 of
the United States Code, then the rights, duties and obligations of
Lessee and Lessor shall be governed by 11 U.S.C. (S)(S)365 and 502 or
as the same may be amended or modified.
19. Notices.
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Any notice by Lessor to Lessee or by Lessee to Lessor shall be in
writing, and shall be given by depositing said notice in any United States Post
Office or Post Office Box for mail and sent postage prepaid, certified mail,
return receipt requested, addressed to the respective parties at their address
stated below. The notice shall be deemed received by the other party two (2)
business days after the postmark date of the notice. If either party changes
their address, notice shall be given of such change by the method set forth.
After the receipt of such notice, the new address shall be used instead of the
address previously given.
If to Lessor, addressed to:
▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Partnership
c/o Gateway Midstate Truck Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or such other address as may be designated
by Seller by like notice); and
If to Lessee, addressed to:
Gateway International Motorsports Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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20. Return of Premises.
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Upon the termination of this Lease or upon the termination of Lessee's
right of possession to the Premises, Lessee shall return the Premises to Lessor
in the same condition as when received, together with any improvements placed
thereon by the Lessee. Lessee shall not have the right to remove any of said
improvements made by Lessee to the Premises without the consent of Lessor.
Lessee shall be obligated to remove all equipment, personal property and trade
fixtures upon the termination of this Lease when requested to do so by Lessor.
21. Attorney's Fees.
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In the event it becomes necessary for either party to employ an
attorney because of the default of any provisions of this Lease by the other
party, then all costs and expenses, including reasonable attorney's fees,
whether or not suit is filed, so incurred by the non-defaulting party shall be
paid by the defaulting party.
22. Successors and Assigns.
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The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Lessor and Lessee and their respective
successors, assigns, and representatives.
23. Entrance and Access.
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23.1 The Lessor shall provide at its cost access to the Premises from
Madison Street with a road at least 18 feet wide, surfaced with aggregate.
Lessor shall, during the term of the Lease, keep the roadway in a good state of
repair and passable.
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The Lessor shall have the right to select the location of such roadway and may
move the roadway, provided that during the term of the Lease there shall be at
least one roadway entrance to the Premises leased.
23.2 The Lessee prior to using the Premises contemplates expending an
amount not exceeding $49,000.00 for fill, aggregate, labor and fencing to make
the Premises fit for parking. The total amount expended by the Lessee for fill,
aggregate, labor and fencing during the period from January 1, 1997, through
July 1, 1997, shall be accumulated and the copies of bills for such shall be
presented to the Lessor. Notwithstanding the provisions of Paragraph 3 hereof,
the Lessor reserves the right to terminate the Lease at any time after two years
(March 1, 1999). In the event the Lease is terminated after March 1, 1999 by
the Lessor or by condemnation at any time during the Lease term, the Lessor
agrees to pay the Lessee a sum of money computed on the following basis:
The total cost of the fill, aggregate, labor and fencing, but in no event more
than $49,000.00, shall be divided by 1825 (365x5) and the resultant figure shall
be multiplied by the number of days remaining of the term of the Lease after
possession of the Premises is turned over to the Lessor. The amount of money
computed as set forth in this paragraph shall be paid to the Lessee by the
Lessor within ten days of the delivery of possession of the Premises to the
Lessor. In the event that the condemnation is a partial taking, the Lessor shall
pay to the Lessee a sum computed as set forth herein but reduced by a fraction,
the numerator of which is the square footage taken and the denominator of which
is the total
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square footage of the Premises. No sums of money will be paid by the Lessor to
the Lessee if the Lessor terminates the Lease due to the default of the Lessee
pursuant to Paragraph 18.
23.3 The Lessor agrees that if the beneficial owner of the Premises (the
▇▇▇▇▇ Partnership) receives a bona fide offer to purchase the property leased
from any person, company, corporation or partnership not affiliated with Gateway
Midstate Truck Plaza or the ▇▇▇▇▇ family, and the ▇▇▇▇▇ Partnership or owner of
the Property is willing to sell the property at that price and on the terms
offered, then it shall give written notice to the Lessee and grant to the Lessee
the right to purchase the property on the same terms and conditions as the bona
fide offer. The Lessee shall have thirty (30) days to give notice to The ▇▇▇▇▇
Partnership that it is willing to purchase the property on the same terms and
conditions as the bona fide offer and shall have another thirty (30) days after
giving notice of its intent to purchase the property to close the transaction.
24. Hazardous Materials.
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24.1 From and after the commencement of this Lease, Lessee shall not cause
or permit any Hazardous Material (as hereafter defined) to be brought upon, kept
or used in or about the Premises by Lessee, its agents, employees, contractors
or invitees, without the prior written consent of Lessor. The Lessor shall
indemnify and hold the Lessee harmless from cost or expense incurred by the
Lessee caused by hazardous materials found on the Premises which were placed
there prior to the term of this Lease. The Lessee, to secure the benefit of this
hold harmless provision, agrees that it
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shall immediately give written notice of any claim made against it due to
hazardous material on the Premises. It shall give the Lessor the opportunity to
defend the claim at Lessor's cost prior to spending any sums of money in
defense of the claim.
24.2 As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of Illinois or the United States Government.
The term "Hazardous Material" includes, without limitation, any material or
substance which is (i) defined as a "hazardous waste" under Section 260.360 of
the Illinois Revised Statutes, (ii) petroleum, (iii) asbestos, (iv) designated
as a "hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. Section 1317), (v) defined as a "hazardous
waste" pursuant to Section 1004 of the Federal Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), or (vi)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq. (42 U.S.C. Section 9601).
25. Entire Agreement.
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This Lease contains the entire agreement of the parties hereto with
respect to the Lease and use of the Premises, and this Lease may not be amended,
modified, released or discharged, in whole or in part, except by an instrument
in writing signed by the parties hereto.
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IN WITNESS WHEREOF, the parties here entered into this Lease as of the
day and year first above written.
LESSOR: LESSEE:
LAND TRUST NO. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ INTERNATIONAL
TRUSTEE, formerly FIRST MOTORSPORTS CORPORATION, a
GRANITE CITY NATIONAL BANK Illinois corporation
TRUSTEE --------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
CEO
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