COMMERCIAL LEASE
PARTIES:
This Commercial Lease Agreement ("Lease") is entered into by and between
Commodity Express Transportation, Inc., a Florida corporation, ("Lessee") and
Power2Ship, Inc., a Florida corporation, ("Lessee") AND Commodity Express
Transportation, Inc., a South Carolina Corporation ("Lessor"), together the
parties ("Parties"). Each Lessee is jointly and severally liable for the
payment of rent and performance of all other terms of this Agreement. A
judgment entered against one Lessee shall be no bar to an action against the
other Lessee.
PREMISES:
Lessor rents to Lessee, and Lessee rents from Lessor the following described
premises, in its present state and condition, all of the fenced premises,
including buildings and improvements, situated at 210 ▇▇▇▇ Park Road, in the
City of West Columbia, County of Lexington, State of South Carolina, ("the
Premises"), of which Lessor is the owner on March 1, 2005, subject to the terms
and conditions in this Agreement.
LESSEE'S ACCESS TO PREMISES:
Upon the execution of this Lease, Lessor grants to Lessee, Lessee's employees,
agents and invitees access to and from the Premises.
TERM:
The term ("Term") of this Lease is for five (5) years, commencing on March 21,
2005 and expiring on March 20, 2010, unless the AmCor contract is not renewed
then Lessee at its option may terminate the lease.
USE:
Lessee shall use and occupy the Premises for the purpose of: continuing the
current use of the Premises which is as a commercial trucking terminal and
business office.
Lessee covenants:
a. Not to use the Premises for living quarters or residence.
b. Surrender the Premises to Lessor at the end of the Term or any renewal
period without the necessity of any notice from either Lessor or Lessee to
terminate the same.
c. Lessee will keep the Premises clean, sanitary and in good condition and,
upon termination of the tenancy, return the Premises to Lessor in a
condition identical to that which existed when Lessee took occupancy,
except for ordinary wear and tear and any additions or alterations
authorized by Lessor.
d. To keep the Premises in good repair at Lessee's own expense with the
exception of those repairs specifically designated as Lessor's
responsibility herein.
e. Not to make any occupancy of the Premises contrary to law or contrary to
any directions, rules, regulations, regulatory bodies, or officials having
jurisdiction or which shall be injurious to any person or property.
f. Not to permit any waste or nuisance.
Notwithstanding the forgoing or any other provision of this Agreement, Lessee
shall not use the Premises for the purposes of storing, manufacturing or selling
any explosives, flammables or other inherently dangerous substance, chemical,
thing or device. Lessee may store gasoline on the Premises, but only after
obtaining written consent from Lessor.
LESSOR'S RESPONSIBILITY FOR REPAIRS:
All repairs shall be made by Lessee at Lessee's own expense. If Lessor pays
for any repairs or any part of any repairs, such payment shall constitute
Additional Rent, as hereinafter defined, and be payable by Lessee under this
Lease, due from Lessee to Lessor at the next rent day after any such payment.
Lessee acknowledges and agrees that it is leasing the Premises in AS IS
condition.
HAZARDOUS MATERIAL:
Lessee hereby indemnifies and holds Lessor and Lessor's officers, directors,
shareholders, managers, members, agents and employees harmless from and against,
and shall reimburse Lessor and Lessor's officers, directors, shareholders,
managers, members, agents and employees for, any and all "Losses" (as
hereinafter defined) arising from, out of or as a consequence, directly or
indirectly, of the release or presence of any Hazardous Materials on the
Premises which first occurs during the Term of this Lease, whether foreseeable
or unforeseeable, and whether or not known to Lessee, it being understood and
agreed that the foregoing indemnity includes, but is not limited to, all costs
of removal, remediation of any kind, detoxification, clean up and disposal of
such Hazardous Materials and the preparation of any closure or other required
plans, all costs of determining whether the Premises is in compliance and
causing the Premises to be in compliance with all applicable Environmental Laws,
all costs and fees associated with claims for damages to persons, property, or
natural resources, and Lessor's reasonable attorneys' fees and consultants' fees
and court costs in respect thereto whether or not litigation or administrative
proceedings shall occur, including all costs and expenses incurred or suffered
by Lessor by reason of any violation of any applicable Environmental Law which
occurs, or has occurred, upon the Premises during the Term of this Lease, or by
reason of the imposition of any governmental lien for the recovery of
environmental clean-up costs expended by reason of such violation, it being
expressly understood and agreed that to the extent Lessor and Lessor's officers,
directors, shareholders, managers, members, agents and employees, or any of them
are strictly liable under any applicable statute or regulation pertaining to
the protection of the environment, this indemnity shall likewise be without
regard to fault on the part of Lessee with respect to the violation of law which
results in such liability. "Losses" shall mean any and all loss, claim,
liability, damages, injuries to person, property or natural resources, cost,
expense, action or cause of action. Any hazardous material liability, damage
that occurred prior to March 1, 2005 is excluded from Lessee's liability.
Lessee hereby covenants and agrees that all obligations of Lessee under this
Section shall survive any termination of this Lease, it being further understood
and agreed that the rights of Lessor under this Section shall be in addition to
any other rights and remedies under this Lease or at law or in equity.
Lessee shall comply with all Environmental Laws throughout the Term
PAYMENT OF RENT:
Lessee will pay to Lessor an annual rental of fifty thousand four hundred
Dollars ($50,400.00) payable in equal installments of four thousand two hundred
Dollars ($4,200.00) (the "rent") in advance on the first day of each month,
except when that day falls on a weekend or a legal holiday, in which case rent
is due on the next business day.
Lessee covenants to pay the rent when due and payable, without any setoff,
deduction or prior demand whatsoever. Any payment by Lessee or acceptance by
Lessor of a lesser amount than shall be due from Lessee to Lessor shall be
treated as payment on account. The acceptance by Lessor of a check, or other
instrument, for a lesser amount with an endorsement or statement thereon, or
upon any letter accompanying such check or other instrument, that such lesser
amount is payment in full, shall be given no effect, and Lessor may accept such
check or other instrument without prejudice to any other rights or remedies
which Lessor may have against Lessee.
Rent will be paid by check to the following address:
c/o ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Upon the execution of this Lease and during the Term hereof, Lessee also
covenants and agrees to pay as "Additional Rent" prior to the respective due
dates thereof all insurance premiums, charges, costs, expenses, and payments
required to be paid by Lessee in accordance with any of the provisions of this
Lease.
All amounts payable by Lessee under this Section shall collectively comprise the
rent due and payable under this Lease ("rent").
RETURNED CHECK AND STOP PAYMENT:
In each instance that a check or other acceptable instrument offered by Lessee
to Lessor for any amount due under this Agreement or in payment of rent is
returned for lack of sufficient funds, a "stop payment" or any other reason, a
service charge of $50, which does not exceed the maximum amount allowed by
applicable South Carolina law, will be assessed.
LATE CHARGES:
If Lessee fails to pay the rent in full before the end of the tenth day after
it's due, Lessee will be assessed a late charge of $50, for the handling of such
late payment, as allowed by applicable South Carolina law. Lessor reserves and
in no way waives the right to insist on payment of the rent in full on the date
it is due. This late payment charge is in addition to any other rights or
remedies of the Lessor.
UTILITIES:
Unless otherwise provided in this Lease, all applications and connections for
necessary utility services on the Premises shall be made in the name of Lessee
only. In addition, unless otherwise provided in this Lease, Lessee shall be
solely liable for utility charges as they become due, including, without
limitation, those for sewer, water, gas, electricity, cable and telephone
services.
In the event Lessee fails to pay utilities as due, Lessor has the right to
enforce and shall enforce payment in the same manner as in rent in arrears or
default.
LESSEE'S EXAMINATION AND ACCEPTANCE OF PREMISES:
Lessee acknowledges that Lessee has examined the Premises and Lessee's
acceptance of this agreement is conclusive evidence that said Premises are in
good and satisfactory order and repair unless otherwise specified herein; and
Lessee agrees that no representations as to the condition of the Premises have
been made and that no agreement has been made to redecorate, repair or improve
the Premises unless hereinafter set forth specifically in writing. Lessor will
deliver the Premises and all common areas in a habitable condition, pursuant to
applicable state law. Lessee takes Premises in its AS-IS condition. Lessee
agrees not to damage the Premises through any act or omission, and to be
responsible for any damages sustained through the acts or omissions of Lessee,
Lessee's employees or Lessee's invitees, licensees, and/or guests. If such
damages are incurred, Lessee is required to pay for any resulting repairs at the
same time and in addition to the next month's rent payment, with consequences
for nonpayment identical to those for nonpayment of rent described herein. Any
damage, contamination or hidden structural damage is excluded from this
paragraph and is the responsibility of Lessor's.
SECURITY DEPOSIT:
The Parties, and additional parties, have agreed to a series of mutual covenants
and concessions in a separate document entitled Mutual Agreement, dated on or
near the date of this Agreement. In consideration of the covenants and
concessions made in the Mutual Agreement, the Parties agree to waive the
requirement of a security deposit associated with this Agreement.
LESSOR'S RIGHT TO PAY LESSEE'S OBLIGATIONS TO OTHERS:
Lessor reserves the right, but not the obligation, in addition to any other
right or remedy, to pay Lessee's obligations to others due to be paid by Lessee
under the provisions of this Lease, including, but not limited to, utilities,
after five (5) days notice of Lessor's intention to do so to Lessee. In the
event of any such payment by Lessor, such payment shall constitute Additional
Rent payable by Lessee under this Lease, due from Lessee to Lessor at the next
rent day after any such payment.
LIENS:
Lessee shall not do any act which shall in any way encumber the title of Lessor
in and to the Premises, nor shall Lessee create or permit to be created, and
shall promptly discharge, any such lien (including, but not limited to, any
mechanic's, contractor's, subcontractor's or material man's lien or any lien,
encumbrance or charge arising out of any conditional sale, title retention
agreement, chattel mortgage, security agreement, financing statement or
otherwise) upon the Premises or any part thereof or the income therefrom, and
Lessee shall not suffer any other matter or thing whereby the estate, rights and
interest of Lessor in the Premises or any part thereof might be impaired.
If Lessee shall fail to cause any such lien to be discharged of record, then
Lessor, after Fifteen (15) days notice of its intention to do so, shall have the
right, but not the obligation, in addition to any other right or remedy, to
discharge such lien either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or bonding proceedings, and in
any such event Lessor shall be entitled if it so elects to compel the
prosecution of an action for foreclosure of such lien by the lienor and to pay
the amount of judgment in favor of the lien owner with interest, costs and
allowances. Any amount so paid by Lessor and all costs and expenses (including
reasonable attorneys' fees) incurred by Lessor in connection therewith shall
constitute Additional Rent payable by Lessee under this Lease, due from Lessee
to Lessor at the next rent day after any such payment.
This Lease shall constitute notice that Lessor shall not be liable for any work
performed or to be performed, or any materials furnished or to be furnished, at
the Premises for Lessee upon credit, and that no mechanic's or other lien for
such work or materials shall attach to or affect the estate or interest of
Lessor in and to the Premises, unless specifically ordered by Lessor in writing.
Lessee shall have no power to do any act or make any contract that may create or
be the foundation for any lien, mortgage or other encumbrance upon the estate of
Lessor, or any other interest of Lessor in the Premises or the other
Improvements or any part thereof.
DEFAULT AND TERMINATION FOR DEFAULT:
Each of the following shall be an "Event of Default":
a. Lessee shall fail to pay rent when due, the Lessor, at his option, may
terminate all rights of the Lessee herein and demand surrender of the
Premises, after not less than fifteen (15) days, or a lesser time if
allowed by applicable law, written notice of such default, given in a
manner required by law unless Lessee rectifies or cures the default within
the said time.
b. If Lessee shall fail to pay any other payment of money, costs or expenses
to be paid by Lessee under this Lease, when due, and the continuance of
such failure for a period of fifteen (15) days, or lesser time if allowed
by applicable law, after written notice from Lessor specifying such
failure;
c. In the event of a default made by Lessee in any of the other covenants or
conditions to be kept, observed and performed by Lessee, Lessee shall have
thirty (30) days, or lesser time if allowed by applicable law, after
receipt of written notice thereof to cure such default. In the event that
the Lessee shall fail to cure any default within the time allowed under
this paragraph, Lessor may declare the Term of this Lease ended and
terminated by giving Lessee written notice of such intention, and if
possession of the Premises is not surrendered, Lessor may reenter the
Premises. Lessor shall have, in addition to the remedy above provided, any
other right or remedy available to Lessor on account of any Lessee default,
either in law or equity. Lessor shall use reasonable efforts to mitigate
its damages.
d. The filing or execution or occurrence of any of the following will be
considered a Default on the part of Lessee:
a. A petition in bankruptcy by or against Lessee;
b. A petition against or answer by Lessee seeking a reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
other relief of the same or different kind under any provision of any
bankruptcy laws;
c. Adjudication of Lessee as a bankrupt or insolvent;
d. An assignment by Lessee for the benefit of creditors;
e. A petition against or proceeding by Lessee for, or the appointment of,
a trustee, receiver, guardian, conservator or liquidator of Lessee
with respect to the Premises or with respect to all or substantially
all of Lessee's property; or
f. A petition against or proceeding by or against Lessee for its
dissolution or liquidation or the taking of possession of Lessee's
property by any governmental authority in connection with dissolution
or liquidation.
Where in the case of a petition filed against Lessee under (a), (b), (e) or (f)
above, such petition is not dismissed within ninety (90) days after the filing
thereof;
a. Entry of an order, judgment or decree by any court of competent
jurisdiction granting any prayer or demand contained in any petition under
(a), (b), (e) or (f) above, which order, judgment or decree is not reversed
or vacated within ninety (90) days after it is entered;
b. Vacation or abandonment of the Premises; or
c. Taking by any person of Lessee's interest in this Lease upon execution,
attachment or other process of law or equity.
In the event of Default on the part of Lessee, Lessor, at its option, without
further notice or demand to Lessee, may, in addition to all other rights and
remedies provided in this Lease, at law or in equity: (a) terminate this Lease
and Lessee's right of possession of the Premises, and recover all damages to
which Lessor is entitled at law, specifically including, without limitation, the
excess of the aggregate rent that would have accrued for the balance of the Term
or (b) terminate Lessee's right of possession of the Premises without
terminating this Lease. In all events, Lessor may re-lease the Premises, or any
part thereof for the account of Lessee, for such rent and term and upon such
terms and conditions as are acceptable to Lessor. If Lessor shall have elected
to pursue its right to terminate Lessee's right of possession of the Premises
without terminating this Lease, then Lessor shall have the further right and
remedy to subsequently rescind such election and terminate this Lease. If
Lessor fails to re-lease the Premises, or if the Premises are re-leased and a
sufficient sum is not realized therefrom to satisfy the payment, when due, of
rent reserved under this Lease for any monthly period, then Lessee shall pay
Lessor a sum equal to the amount of rent due under this Lease for each such
monthly period, or if the Premises have been re-leased, Lessee shall pay any
such deficiency on the rent day applicable to such month. Nothing in the
foregoing sentence, however, shall be deemed to mean that Lessor can only
collect damages from Lessee hereunder in monthly installments, it being
expressly acknowledged by Lessee that Lessor shall always have the right to
collect, in a lump sum, from Lessee, damages equal to the excess of the rent
that would have accrued for the balance of the Term. Lessee agrees that Lessor
may file suit to recover any sums due to Lessor hereunder at any time or from
time to time and that such suit or recovery of any amount due Lessor hereunder
shall not be any defense to any subsequent action brought for any amount not
theretofore reduced to judgment in favor of Lessor. In the event Lessor elects
to terminate Lessee's right of possession only, without terminating this Lease,
Lessor may, at Lessor's option, enter into the Premises, remove Lessee's signs,
Lessee's property, and other evidences of tenancy, and take and hold possession
thereof; provided, however, that such entry and possession shall not terminate
this Lease or release Lessee, in whole or in part, from Lessee's obligation to
pay the rent reserved hereunder for the full Term or from any other obligation
of Lessee under this Lease. Any and all property which may be removed from the
Premises by the Lessor pursuant to the authority of this Lease or of law, to
which the Lessee is or may be entitled, may be handled, removed or stored by the
Lessor at the risk, cost and expense of the Lessee, and the Lessor shall in no
event be responsible for the value, preservation or safekeeping thereof.
Upon occurrence of any Event of Default, and after proper notice of default has
been given, Lessor may, at its option, in addition to any other remedy or right
given hereunder or by law, give notice to Lessee that this Lease shall terminate
upon the date specified in the notice, which date shall not be earlier than ten
(10) days after mailing or delivery of such notice.
No waiver of any default of Lessee hereunder shall be implied from any omission
to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default
specified in the express waiver and that only for the time and to the extent
therein stated. One or more waivers by Lessor or Lessee shall not be construed
as a waiver of a subsequent breach of the same covenant, term or condition.
Any provisions for the termination of this Lease shall not operate to exclude or
suspend any other remedy of the Lessor for breach or for the recovery of said
rent for the full Term.
NOTICES - AGENTS AND AUTHORITY TO RECEIVE LEGAL PAPERS:
Any notice, which either party may or is required to give, be it for default of
the terms and covenants of this Lease or any other reason, may be given by
mailing the same, by certified mail, to the following address:
Lessor: c/o ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lessee: Commodity Express Transportation, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ACCELERATION:
Upon Lessor's termination of this, Lessee expressly agrees and understands that
unless prohibited by applicable State law, the entire remaining balance of
unpaid rent for the remaining Term of this Lease shall ACCELERATE, whereby the
entire sum shall become immediately due, payable, and collectible.
LESSOR'S DEFAULT:
Lessee hereby agrees, in the event of any default by Lessor, Lessee shall,
before exercising any rights that Lessee may have at law to cancel this Lease,
first send notice by registered or certified mail, or hand delivery, to Lessor,
and shall have offered Lessor thirty (30) days in which to correct and cure the
default or commence a good faith effort to cure such default.
OPTION TO RENEW:
Provided that Lessee is not in default in the performance of this Lease, Lessee
shall have the option to renew this Lease for one additional term of one year
commencing at the expiration of the initial Lease Term. All of the terms,
conditions and covenants of this Lease shall apply during the renewal Term
except that the monthly rent shall be the sum of five thousand forty dollars
($5,040.00). The option shall be exercised by written notice given to Lessor not
less than 90 days prior to the expiration of the initial Lease Term. If notice
is not given in the manner provided herein within the time specified, this
option shall expire.
LESSEE'S FAILURE TO TAKE POSSESSION:
If, after signing this Agreement, Lessee fails to take possession of the
Premises, Lessee will still be responsible for paying rent and complying with
all other terms of this Agreement.
LESSOR'S FAILURE TO DELIVER POSSESSION:
If Lessor is unable to deliver possession of the Premises to Lessee for any
reason not within Lessor's control, including but not limited to partial or
complete destruction of the Premises, Lessee will have the right to terminate
this Agreement upon proper notice as required by law. In such event, Lessor's
liability to Lessee will be limited to the return of all sums previously paid by
Lessee to Lessor. Lessee agrees to hold Lessor and Lessor's agents harmless for
loss or damage for any reason not within Lessor's control. In any case, Lessor's
liability to Lessee will be limited to the return of all sums previously paid by
Lessee to Lessor.
TERMINATION OF LEASE - HOLD OVER:
Either Lessor or Lessee may terminate this Lease at the expiration of said Lease
Term or any extension thereof by giving the other sixty (60) days written notice
prior to the due date.
Lessee expressly agrees to the following:
a. If Lessee, with the consent of Lessor, expressed or implied, shall hold
over after the expiration of the Term of this Lease, Lessee shall, in the
absence of any written agreement to the contrary, continue such tenancy
from month to month only, and shall not be entitled to a full Term renewal.
Lessee shall be entitled to possession until Lessor has given Lessee sixty
(60) days notice that such month-to-month tenancy shall be terminated. Only
notice of default, as hereinafter provided, shall be required.
b. If Lessee, without the consent of Lessor, expressed or implied, shall hold
over after the expiration of the Term of this Lease, Lessee shall be
considered a tenant at sufferance at double the rent herein provided,
prorated by the day until possession is returned to Lessor.
c. Lessees holding over after or beyond the expiration of the notice period of
a lawful Notice of Termination shall be Lessee holding over without the
consent of the Lessor, and Lessee shall be considered a tenant at
sufferance, at double the rent herein provided, prorated by the day until
possession is returned to Lessor. This shall in no way limit any other
remedies and rights of recovery that Lessor may have under applicable law.
CONDEMNATION:
If any legally, constituted authority condemns the Premises or such part thereof
which shall make the Premises unsuitable for leasing, this Lease shall cease
when the public authority takes possession, and Lessor and Lessee shall account
for rental as of that date. Such termination shall be without prejudice to the
rights of either party to recover compensation from the condemning authority for
any loss or damage caused by the condemnation. Neither party shall have any
rights in or to any award made to the other by the condemning authority.
EMINENT DOMAIN:
If the Premises or any part thereof or any estate therein shall be taken by
eminent domain, this Lease shall terminate on the date when title vests pursuant
to such taking. The rent shall be apportioned as of the termination date, and
any rent paid for any period beyond that date shall be repaid to Lessee. Lessee
shall not be entitled to any part of the award for such taking or any payment in
lieu thereof, but Lessee may file a claim for any taking of fixtures and
improvements owned by Lessee, and for moving expenses.
ASSIGNMENT OF AGREEMENT AND SUBLETTING:
Lessee shall have the right without Lessor's consent, to assign this Lease to a
corporation with which Lessee may merge or consolidate, to any subsidiary of
Lessee, to any corporation under common control with Lessee, or to a purchaser
of substantially all of Lessee's assets provided that (a) the net worth of such
assignee after such merger, reorganization or consolidation shall be no less
than that of Lessee immediately prior to such merger, reorganization or
consolidation, (b) Lessee is not at such time in Default hereunder, and (c) such
successor shall execute an instrument in writing fully assuming all of the
obligations and liabilities imposed upon Lessee hereunder and deliver the same
to Lessor; whereupon Lessee shall be discharged from any further liability
hereunder.
Except as set forth above, Lessee will not sublet any part of the Premises or
assign this Agreement without the prior written consent of Lessor, which shall
not be unreasonable withheld. Any such assignment or subletting without consent
shall be void and, at the option of the Lessor, may terminate this Lease.
No assignment or transfer of this Lease by Lessee consented to by Lessor shall
be effective, unless the assignee or transferee shall, at the time of such
assignment or transfer, assume all the terms, covenants and conditions of this
Lease thereafter to be performed by Lessee and shall agree to be bound thereby.
Notwithstanding such assignment or transfer or the acceptance by Lessor from
such assignee of any rent or other monies or other performance of the
obligations of Lessee hereunder, Lessee shall remain liable and obligated as a
principal (and not as a surety or guarantor) to perform all the terms,
conditions and covenants, including the payment of rent and other monies, herein
provided to be performed by Lessee.
VIOLATION OF LAWS:
Lessee, guests and invitees of either Lessee or guests will not use the Premises
in such a manner that violates any law, ordinance, statutes or requirement of
any municipal, state or federal authority now in force, or which may hereafter
be in force, pertaining to the Premises, occasioned by or affecting the use
thereof by Lessee.
Lessor shall comply with all laws, orders, ordinances, statutes or requirements
now or hereafter affecting the Premises.
INSURANCE:
While this Agreement is in effect, Lessor shall keep the Premises insured
against loss by fire in such amounts as Lessor shall deem appropriate. Lessee
shall be responsible, at its expense, for fire and extended coverage insurance
on all of its personal property, including, without limitation, equipment,
freight, furniture, and removable trade fixtures, located in the Premises.
If the Premises is damaged by fire or other casualty resulting from any act or
negligence of Lessee or any of Lessee's agents, employees or invitees, rent
shall not be diminished or abated while such damages are under repair, and
Lessee shall be responsible for the costs of repair not covered by insurance.
Lessee shall, at its own expense, maintain a policy or policies of comprehensive
general liability insurance with respect to its activities in and on the
Premises with the premiums thereon fully paid on or before the due date, by
companies reasonably satisfactory to Lessor and any mortgagee of Lessor and
licensed to do business in the State of South Carolina, such insurance to afford
minimum protection of not less than one million dollars ($1,000,000.00) combined
single limit coverage of bodily injury, property damage or combination thereof.
Lessor and such other persons or entities as Lessor may designate, as their
interests may appear, shall be listed as an additional insured on Lessee's
policy or policies of comprehensive general liability insurance, and such
policies shall provide that losses shall be paid to such insureds as their
interests may appear. Lessee shall provide Lessor with current Certificates of
Insurance evidencing Lessee's compliance with this Paragraph along with receipts
or other evidence that the premiums thereon have been paid for at least one (1)
year. Lessee shall obtain the agreement of Lessee's insurers to notify Lessor
of a material change of coverage or that a policy is due to expire at least
thirty (30) days prior to the implementation of such change or expiration.
Certificates evidencing renewals of each policy of insurance shall be delivered
to Lessor at least twenty (20) days prior to the expiration dates of the
respective policies. To the maximum extent permitted by insurance policies
owned by Lessor or Lessee, Lessee and Lessor, for the benefit of each other,
waive any and all rights of subrogation that might otherwise exist.
Lessee shall perform and satisfy all requirements of the companies writing any
insurance policies referred to in this Lease so that at all times companies of
good standing, satisfactory to Lessor, shall be willing to write such insurance.
In case Lessee shall at any time fail, neglect or refuse to procure or renew any
insurance hereinabove provided, then Lessor shall have the right, but not the
obligation, to procure or renew such insurance and any amounts paid therefore by
Lessor shall be so much Additional Rent due at the next rent day after any such
payment.
Lessor shall not be required to maintain insurance against thefts on or within
the Premises.
TAX INCREASE:
Lessor shall pay, prior to delinquency, all general real estate taxes and
installments of special assessments coming due during the Lease Term on the
Premises. Lessee shall be responsible for paying all personal property taxes
with respect to Lessee's personal property at the Premises.
In the event there is any increase during any year of the Term of this Lease in
the City, County or State real estate taxes over and above the amount of such
taxes assessed for the tax year immediately prior to the year in which the Term
of this Lease commences, whether because of increased rate or valuation, Lessee
shall pay to Lessor upon presentation of paid tax bills an amount equal to 100%
of the increase in such real estate taxes. In the event that such taxes are
assessed for a tax year extending beyond the Term of this Lease, the obligation
of Lessee shall be proportionate to the portion of the Term included in such
year.
PROPERTY DAMAGE AND DESTRUCTION:
If the Premises is so damaged by fire, casualty or structural defects that the
same cannot be used for Lessee's purposes, then Lessee shall have the right
within ninety (90) days following damage to elect by notice to Lessor to
terminate this Lease as of the date of such damage.
In the event of a partial destruction of the Premises during the Term hereof,
which is beyond Lessee's reasonable control, from any other cause, except in the
case where the Premises is damaged by fire or other casualty resulting from any
act or negligence of Lessee or any of Lessee's agents, employees or invitees, as
previously discussed, Lessor shall forthwith repair the same, provided that such
repairs can be made within sixty (60) days under existing governmental laws and
regulations, but such partial destruction shall not terminate this Lease.
Lessee shall be relieved from paying rent and other charges during any portion
of the Lease Term that the Premises are inoperable or unfit for occupancy, or
use, in whole or in part, for Lessee's purposes, except in the case where the
Premises is damaged by fire or other casualty resulting from any act or
negligence of Lessee or any of Lessee's agents, employees or invitees, as
previously discussed. Rentals and other charges paid in advance for any such
periods shall be credited on the next ensuing payment(s), if any, but if no
further payments are to be made, any such advance payments shall be refunded to
Lessee. In making the repairs called for in this paragraph, Lessor shall not be
liable for any delays resulting from strikes, governmental restrictions,
inability to obtain necessary materials or labor or other matters which are
beyond the reasonable control of Lessor.
In the event said repairs cannot be made within sixty (60) days or Lessor shall
not elect to make such repairs that cannot be made within sixty (60) days, this
Lease may be terminated at the option of either party.
In the event that the Premises is destroyed to an extent of not less than
one-half of the replacement cost of the Premises, Lessor may elect to terminate
this Lease.
ALTERATIONS AND REPAIRS BY LESSEE:
Lessee shall not, without first obtaining the written consent of Lessor, make
any alteration(s), addition(s), or improvement(s), in, to or about the Premises.
During the Lease Term, Lessee shall make, at Lessee's expense, following
Lessor's written consent, all necessary repairs to the Premises. Repairs shall
include such items as routine repairs of floors, walls, ceilings, and other
parts of the Premises damaged or worn through normal occupancy. Lessor is not
responsible for repairs to the Premises during the Lease Term.
Unless authorized by law, Lessee will not, without Lessor's prior written
consent, alter, re-key or install any locks to the Premises or install or alter
any burglar alarm system. Lessee will provide Lessor with a key or keys capable
of unlocking all such re-keyed or new locks as well as instructions on how to
disarm any altered or new burglar alarm system.
Lessee, at Lessee's expense, shall have the right following Lessor's written
consent, to remodel, redecorate, and make additions, improvements and
replacements of and to all or any part of the Premises from time to time as
Lessee may deem desirable, provided the same are made in a workmanlike manner
and utilizing good quality materials. Lessee shall have the right to place and
install personal property, trade fixtures, equipment and other temporary
installations in and upon the Premises, and fasten the same to the Premises.
All personal property, equipment, machinery, trade fixtures and temporary
installations, whether acquired by Lessee at the commencement of the Lease Term
or placed or installed on the Premises by Lessee thereafter, shall remain
Lessee's property free and clear of any claim by Lessor. Lessee shall have the
right to remove the same at any time during the Term of this Lease provided
removal of such improvement(s) will not cause material injury to the Premises.
All improvements made by Lessee to the Premises which are so attached to the
Premises that they cannot be removed without material injury to the Premises,
shall become the property of Lessor upon installation. Not later than the last
day of the Term, Lessee shall, at Lessee's expense, remove all of Lessee's
personal property and those improvements made by Lessee which have not become
the property of Lessor, including trade fixtures, cabinetwork, movable paneling,
partitions, and the like; repair all injury done by or in connection with the
installation or removal of such property and improvements; and surrender the
Premises in as good condition as they were at the beginning of the Term,
reasonable wear, and damage by fire, the elements, casualty, or other cause not
due to the misuse or neglect by Lessee or Lessee's agents, employees, visitors,
or licensees, excepted.
In any event, all property of Lessee remaining on the Premises after the last
day of the Term of this Lease shall be conclusively deemed abandoned and may be
removed by Lessor, and Lessee shall reimburse Lessor for the cost of such
removal.
ALTERATIONS AND REPAIRS BY LESSOR:
Lessor shall be responsible for the maintenance and repair of the roof and
structural integrity of all buildings on the Premises. Lessor may make
alterations to the roof and structural integrity as long as such alterations do
not conflict with Lessee's right of use of the Premises.
LESSOR'S RIGHT TO ACCESS:
In the event of an emergency, or to show the Premises to prospective buyers or
Lessees, or to conduct an annual inspection, or to address a safety problem, or
for the purposes of inspecting the same, Lessor or Lessor's agents may enter the
Premises at reasonable hours, provided Lessor shall not thereby unreasonably
interfere with Lessee's business on the Premises. Except in cases of emergency,
Lessee's abandonment of the Premises, court order or where it is impractical to
do so, Lessor shall give Lessee notice on the prior business day before
entering.
Lessee will permit Lessor at any time within ninety (90) days prior to the
expiration of this Lease, to place upon the Premises any usual "To Let" or "For
Lease" signs, and permit persons desiring to lease the same to inspect the
Premises thereafter.
LESSEE'S MAINTENANCE:
By executing this Lease, Lessee acknowledges that the Premises are in good order
and repair, unless otherwise indicated herein. Lessee shall, at its own expense
and at all times, maintain the Premises in good and safe condition, including,
without limitation, plate glass, electrical wiring, plumbing and heating
installations and any other system or equipment upon the Premises, and shall
surrender the same at termination hereof, in as good condition as received,
normal wear and tear excepted. Lessee shall be responsible for all repairs
required
NOTICE OF INJURIES ON PREMISES:
In the event of any significant injury or damage to Lessee, Lessee's employees,
or Lessee's invitees, licensees, and/or guests, or any personal property,
suffered on the Premises or in any common area, written notice of same shall be
provided by Lessee to Lessor at the address designated for delivery of notices
as soon as possible but not later than five (5) business days after said injury
or damage. Failure to provide such notice shall constitute a breach of this
Lease.
SIGNS:
Lessee shall have the right to place on the Premises, at locations selected by
Lessee, any signs which are permitted by applicable zoning ordinances and
private restrictions. Lessor shall assist and cooperate with Lessee in obtaining
any necessary permission from governmental authorities or adjoining owners and
occupants for Lessee to place or construct the foregoing signs. Lessee shall
repair all damage to the Premises resulting from the removal of signs installed
by Lessee.
SUBORDINATION:
This Lease shall be subject and subordinate at all times to the lien of all
mortgages and trust deeds in any amount or amounts whatsoever now or hereafter
placed on or against the Premises or on or against Lessor's interest or estate
therein, all without the necessity of having further instruments executed on the
part of Lessee to effectuate such subordination; provided that in the event of a
foreclosure of any such mortgage or trust deed or any other action or proceeding
for the enforcement thereof, or of any sale thereunder, this Lease will not be
barred, terminated, cut off or foreclosed nor will the rights and possession
of Lessee hereunder be disturbed if there shall exist no Event of Default with
respect to the payment of rent or any other Event of Default hereunder. Lessee
shall attorn to the purchaser at any such foreclosure, sale or other action or
proceeding or, if requested, enter into a new lease for the balance of the Term
then remaining upon the same terms and provisions as are in this Lease
contained. Lessee agrees to execute and deliver upon demand such further
instruments evidencing such subordination of this Lease to the lien of any such
mortgages or trust deeds as may be required by Lessor.
Notwithstanding the foregoing, Lessee shall from time to time on request from
Lessor execute and deliver any documents or instruments that may be required by
any lender to effectuate such subordination. If Lessee fails to execute and
deliver any documents or instruments, Lessee irrevocably constitutes and
appoints Lessor as Lessee's attorney in fact to execute and deliver such
documents or instruments
BROKERAGE FEES, COMMISSIONS:
Lessee represents that Lessee was not shown the Premises by any real estate
broker or agent and that Lessee has not otherwise engaged in, any activity which
could form the basis for a claim for real estate commission, brokerage fee,
finder's fee or other similar charge, in connection with this Lease. Lessee
agrees to defend and hold harmless Lessor in the event a claim for a broker's
fee is made in connection with this Lease transaction.
MEMORANDUM OF LEASE:
The parties hereto contemplate that this Lease should not and shall not be filed
for record, but in lieu thereof, at the request of either party, Lessor and
Lessee shall execute a Memorandum of Lease to be recorded for the purpose of
giving record notice of the appropriate provisions of this Lease.
ESTOPPEL CERTIFICATE:
At any time and from time to time but on not less than ten (10) days prior
written request by either party hereto, the other party shall execute,
acknowledge and deliver to the requesting party, promptly upon request, a
certificate certifying (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification),
(b) the date, if any, to which rent and other sums payable hereunder have been
paid, (c) that no notice has been received by such party of any Default which
has not been cured, except as to Defaults specified in the certificate, and (d)
such other matters as may be reasonably requested by the requesting party. Any
such certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any trust deed of the Premises or any part thereof and by any
collateral assignee of this Lease.
INDEMNIFICATION OF LESSOR:
Lessor shall not be liable for any damage or injury to Lessee, or any other
person, or to any property, occurring on the Premises and Lessee agrees to hold
Lessor harmless from any claim for damages, during the Term of this Lease or any
extension of this Lease, no matter how caused.
Lessee agrees to pay, and to indemnify Lessor against, all costs and expenses
(including, but not limited to, Lessor's reasonable attorneys' fees) incurred by
or imposed upon Lessor by or in connection with any litigation to which Lessor
becomes or is made a party without fault in its part, whether commenced by or
against Lessee, or that may be incurred by Lessor in enforcing any of the
covenants and agreements of this Lease (with or without the institution of any
action or proceeding relating to the Premises or this Lease) or in obtaining
possession of the Premises after an Event of Default or upon expiration or
earlier termination of this Lease.
Lessor may, but shall not be obligated to, cure any Default by Lessee hereunder.
All sums expended and all costs and expenses (including, but not limited to,
reasonable attorneys' fees) incurred by Lessor pursuant to the provisions of
this Lease or on account of any Default by Lessee under this Lease and all such
sums shall become Additional Rent under this Lease, payable by Lessee to Lessor
on the next rent date after such expenditure.
All rent and other amounts payable by Lessee under this Lease shall be and are
hereby declared to be a valid and first lien upon Lessee's interest in the
Premises and upon the rents, issues and profits in any manner arising or growing
out of the same, and upon Lessee's interest in this Lease.
In the event of any breach or threatened breach by Lessee of any of the
covenants, agreements, terms or conditions contained in this Lease, Lessor shall
be entitled to enjoin such breach or threatened breach and shall have the right
to invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though re-entry, summary proceedings and other remedies were not
provided for in this Lease.
No receipt of monies by Lessor from Lessee after termination of this Lease or
after the giving of any notice of termination of this Lease shall reinstate,
continue or extend the Term or affect any notice theretofore given to Lessee, or
operate as a waiver of Lessor's right to enforce the payment of rent and any
other payments or charges herein reserved and agreed to be paid by Lessee then
or thereafter falling due, or operate as a waiver of Lessor's right to recover
possession of the Premises, it being agreed that after the service of notice to
terminate this Lease or the commencement of suit or summary proceedings, or
after final order or judgment for the possession of the Premises, Lessor may
demand, receive and collect any monies due or thereafter falling due without, in
any manner, affecting such notice, proceeding, order, suit or judgment, all such
monies collected being deemed payments on account of the use and occupation of
the Premises or at Lessor's election on account of Lessee's liability hereunder.
WAIVER:
Any waiver of a default hereunder shall not be deemed a waiver of this agreement
or of any subsequent default. Acquiescence in a default shall not operate as a
waiver of such default, even though such acquiescence continues for an extended
period of time.
Lessor's granting of any consent under this Lease, or Lessor's failure to object
to any action taken by Lessee without Lessor's consent required under this
Lease, shall not be deemed a waiver by Lessor of its rights to require such
consent for any further similar act by Lessee. No waiver by Lessor of any other
breach of the covenants of this Lease shall be construed, taken or held to be a
waiver of any other breach or to be a waiver, acquiescence in or consent to any
further or succeeding breach of the same covenant. None of Lessee's covenants
under this Lease, and no breach thereof, shall be waived, altered or modified
except by a written instrument executed by Lessor.
REMEDIES - CUMULATIVE:
No remedy conferred upon or reserved to Lessor under this Lease or under law
shall be considered exclusive of any other remedy, but such remedies shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise, and every
power and remedy given by this Lease to Lessor may be exercised from time to
time and as often as occasion may arise or as may be deemed expedient, without
precluding Lessor's simultaneous or later exercise of any or all other rights or
remedies. No delay or omission of Lessor to exercise any right or power arising
from any Default or Event of Default shall impair any such right to power or
shall be construed to be a waiver of any such Default or Event of Default or
acquiescence therein.
PARAGRAPH HEADINGS:
The headings of particular paragraphs and subparagraphs are inserted only for
convenience and are not part of this Agreement and are not to act as a
limitation on the scope of the particular paragraph to which the heading refers.
BINDING ON SUCCESSORS:
This Lease is binding upon and inures to the benefit of the heirs, successors in
interest to the parties.
ENTIRE AGREEMENT:
This document and any Attachments constitute the entire Agreement between the
parties, and no promises or representations, other than those contained here and
those implied by law, have been made by Lessor or Lessee. Any modifications to
this Agreement must be in writing and signed by Lessor and Lessee.
SEVERABILITY:
The provisions of this Lease are severable and in the event any provision,
clause, sentence, section or part thereof is held to be invalid, illegal,
unconstitutional, inapplicable or unenforceable to any person or circumstances,
such invalidity, illegality, unconstitutionality, inapplicability or
unenforceability shall not affect or impair any of the remaining provisions,
sentences, clauses, sections, parts of this Lease or their application to Tenant
or other persons or circumstances. It is understood and agreed that the terms,
conditions and covenants of this Lease would have been made by both parties if
such invalid, illegal, unconstitutional, inapplicable or unenforceable
provision, sentence, clause, section or part had not been included therein to
the extent that portion of this agreement may be invalid by striking of certain
words or phrases, such words or phrases shall be deemed to be stricken and the
remainder of the provisions and the remainder of the other portions of this
Lease agreement shall remain in full force and effect. It is further agreed that
this Lease may be executed in counterparts, each of which when considered
together shall constitute the original contract.
LESSEE AS CORPORATE ENTITY:
Each person executing this Lease represents and warrants that he or she is duly
authorized to execute and deliver this Lease on behalf of the corporation.
Those persons further represent that the terms of this Lease are binding upon
the corporation.
EXECUTION:
BY SIGNING BELOW, LESSOR AND LESSEE AGREE TO AND ACCEPT THE TERMS OF THIS
COMMERCIAL LEASE AGREEMENT AND LESSEE ACKNOWLEDGES RECEIPT OF AN EXECUTED COPY
OF THIS LEASE.
COMMODITY EXPRESS TRANSPORTATION, INC. OF SOUTH CAROLINA
Signature: ____________________________________
Printed name: _________________________________
Title: ________________________________________
Date: ________________________________________
COMMODITY EXPRESS TRANSPORTATION, INC. OF DELAWARE
Signature: _____________________________________
Printed name: __________________________________
Title: _________________________________________
Date: _________________________________________
POWER2SHIP, INC
Signature: _____________________________________
Printed name: __________________________________
Title: _________________________________________
Date: _________________________________________