AMENDMENT TO AGREEMENT OF LEASE
082710
AMENDMENT
TO
This
Amendment to Agreement of Lease ("Agreement") is made effective
as of the date the last of the parties executes this Agreement (the "Effective Date") by and among
XXXXXXXXXX PARTNERS, LLC, a Maryland limited liability company ("Landlord") and NEW GENERATION
BIOFUELS HOLDINGS, INC., a Florida corporation ("Tenant").
RECITALS
A. Landlord
and Tenant entered into a Lease effective September 12, 2008 (the "Lease") pursuant to which
Landlord leased to Tenant certain premises in Baltimore City,
Maryland.
B. Landlord
is the exclusive provider of terminaling services on Landlord's
Property. On or about the Effective Date, Tenant and Landlord have
agreed to terminate that certain Terminaling Services Agreement dated September
12, 2008 between Atlantic Terminalling Services, LLC (“Atlantic”) and Tenant (the
"Terminaling Services
Agreement"), which was previously assigned by Atlantic to
Landlord. Such termination shall be accomplished in the form of the
Termination Agreement attached hereto as Exhibit A.
C. Tenant
has defaulted in its obligations under the Lease, including the failure to make
the payments of Rent (and associated late charges and interest) it is required
to make pursuant to the Lease (the "Existing
Defaults").
D. Landlord
and Tenant have agreed to amend the Lease as set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the agreement set forth herein and other good and
valuable consideration, the sufficiency of which is acknowledged, the parties
agree as follows:
1. The
foregoing recitals are incorporated herein by reference. Capitalized
and defined terms used in this Agreement shall have the same meanings as those
ascribed to them in the Lease unless the context clearly requires
otherwise. In the event that the terms of this Agreement conflict
with the terms of the Lease, the terms of this Agreement shall
control.
2. Effective
as of August 1, 2010, the Base Rent due under Section 3.1 shall be reduced to
$25,000.00 per month for the remainder of the Initial
Term. Commencing with the first Rental Year of the first properly
exercised Renewal Term, and for each Rental Year thereafter, the Base Rent shall
be increased to an amount equal to the monthly Base Rent payable during the then
immediately preceding Rental Year increased by three percent (3%).
3. Effective
as of August 1, 2010, Sections 3.4 and 11.2 through 11.6 inclusive of the Lease
are hereby deleted, it being the intention that as of such date Tenant shall no
longer be responsible for Taxes or Tenant’s CAC Share.
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4. On
the Effective Date of this Agreement, Tenant agrees to pay and deliver to
Landlord, and Landlord agrees to accept the following from Tenant in full
satisfaction of the Existing Defaults:
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(i.)
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Tenant
shall pay to Landlord the sum of $40,000.00 as Rent for the month of July,
2010;
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(ii.)
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Tenant
shall pay Base Rent in advance for the period that begins on August 1,
2010 and ends on November 30, 2010 in the amount of
$100,000.00;
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(iii.)
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Tenant
shall pay to Landlord the sum of $150,000.00 in cash;
and
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(iv.)
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Tenant
shall issue to Landlord 300,000 shares of unregistered common stock
pursuant to an exemption from Registration under Section 4(2) of the
Securities Act of 1933 and Regulation D promulgated
thereunder. Such shares shall be subject to restrictions under
Rule 144 of the Securities Act of 1933, as
amended.
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5. Landlord
represents and warrants that it is an "accredited investor" as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act of 1933, as
amended.
6. The
parties agree that as of the Effective Date of this Agreement, the Premises
shall no longer include the large tanks located on Xxxxxxxxxx Avenue, known as
Tank Number T200, T201,T202, T203 and T204 (the "Tanks") and, from and after
the Effective Date, Tenant shall no longer (i) be responsible for any personal
property taxes related to the Tanks, (ii) have any responsibility for the
repair, maintenance, or replacement of the Tanks, or (iii) maintain any
insurance related to such tanks. Notwithstanding the foregoing, the
Premises shall continue to include Tank Number T108. Exhibit A-2
attached to the Lease hereby is replaced with Exhibit A-2 attached to this
Amendment.
7. Landlord
agrees to cooperate in good faith with Tenant and not to unreasonably withhold,
condition or delay its consent (in accordance with Section 6.2 of the Lease) to
Tenant's plans to alter the Premises to facilitate truck traffic flow at the
Premises.
8. The
following amendments to the Lease are made relating to Terminaling
Services:
A. Subsection
(v) of the second sentence of Section 1.1 is hereby amended to remove the
reference to the Terminaling Services Agreement so that it reads as
follows:
"the
right to the use in common with Landlord and other tenants on Landlord's
Property of the roadways, the dock labeled as "Shared Dock Access" on Exhibit
A-2, rail tracks reasonably identified by Landlord for use in common, pipe
racks, interconnections and other common areas of Landlord's Property, for
purpose of ingress and egress to and from the Premises, including ingress and
egress to said docks and rail tracks and to Aspen Street and any other street
that abuts Landlord's Property."
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B. Article
IV of the Lease relating to Terminaling Services is hereby deleted.
C. Subsection
(1) of Article VII, Section 7.2 is hereby amended to read:
"Fire and
extended coverage insurance, including riders for sprinkler damage, water
damage, vandalism and malicious mischief, covering those insurable facilities
located on Landlord's Property that are being used by Tenant against loss or
damage by fire and against loss or damage by other risks now or hereafter
embraced by "All Risk Replacement Cost" insurance, in amounts equal to the full
replacement cost thereof (exclusive of the costs of excavation or
foundations)."
9. Landlord
and Tenant make the following new agreements related to Terminaling
Facilities:
(1) Terminaling
Facilities. Landlord represents and warrants to Tenant as
follows with respect to the terminaling facilities located on the Landlord's
Property (collectively, the "Terminaling
Facilities"):
(a) Rail
Facilities. Landlord agrees to use commercially reasonable
efforts to enter into the Private Sidetrack Agreement with CSX in the form
attached hereto and made a part hereof as Exhibit C (the “Sidetrack Agreement”)
within five (5) business days after the Effective Date of this
Agreement. Within ninety (90) days after the Sidetrack Agreement is
executed by CSX and Landlord, Landlord and Tenant shall negotiate in good faith
and use commercially reasonable efforts to agree upon an allocation of the costs
to repair and restore the existing rails on the Sidetrack (as hereinafter
defined). If Landlord and Tenant agree upon an allocation of the
costs to repair and restore the existing rails on the Sidetrack, then within
sixty (60) days after an agreement is reached, Landlord will provide Tenant use
in common with Landlord and other tenants on Landlord’s Property of the private
rail sidetrack described on Exhibit B attached hereto and made a part hereof
(the "Sidetrack"), containing approximately 260 feet of rail line, that has
access to the CSX rail line that runs through Landlord’s
Property. Tenant acknowledges that Landlord shall have the right at a
later time to extend the Sidetrack, at Landlord’s expense. Landlord
agrees that Landlord and the other tenants shall use the Sidetrack in a
commercially reasonable manner and will cooperate with Tenant to ensure that
Tenant’s business is not unreasonably disrupted (as determined by Tenant) by
Landlord’s and other tenants’ use of the Sidetrack. On the Sidetrack,
Tenant will be provided a location for Tenant’s exclusive use at the terminal
that is directly adjacent to the Premises and parallel to the CSX main rail line
to place five (5) tank cars (not to exceed 260 feet) at a time for loading and
unloading, provided that (a) the use of the exclusive use area by Tenant shall
at all times be subject to the terms of the Sidetrack Agreement and applicable
federal, state and local laws, ordinances and regulations, and (b) Tenant
acknowledges that Landlord will be able to temporarily move all rail cars of
Tenant to allow Landlord and other tenants access to the remainder of the
Sidetrack, now or hereafter existing. Notwithstanding the foregoing,
all of Landlord’s and Tenant’s
obligations under this Section 9(1)(a) shall be conditioned upon CSX and
Landlord entering into the Sidetrack Agreement and Landlord and Tenant agreeing
upon an allocations of the costs to repair and restore the existing rails on the
Sidetrack.
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(b) Dockside
Facilities. Tenant will be provided with access to dockside
facilities consisting of two barge docks located along the south end of the
terminal. Docks shall be staffed by Landlord. To the
extent that Tenant utilizes such dockside facilities, Landlord and Tenant will
work in good faith to load and unload products from vessels and Tenant will pay
Landlord $.02 for each gallon loaded or unloaded. Loading speeds
shall depend on pump/pipe sizing. Landlord shall not be responsible
for any loss, damage, demurrage, or expense due to delay in loading or unloading
of Tenant’s commodities. Landlord may require Tenant and any third
parties to execute Landlord’s reasonable access agreement prior to use of the
dock facilities.
(2) Rail Cars. All of
Landlord’s and Tenant’s
obligations under this Section 9(2) shall be conditioned upon CSX and Landlord
entering into the Sidetrack Agreement and Landlord and Tenant agreeing upon an
allocations of the costs to repair and restore the existing rails on the
Sidetrack as described in Section 9(1)(a). Landlord agrees to provide to
Tenant access to the Sidetrack on a 24-hour - 7 day a week basis, provided that
Landlord’s obligations hereunder are conditioned upon CSX entering into the
Sidetrack Agreement. All scheduling of Tenant’s rail cars shall be handled by
Tenant. Tenant will (i) notify CSX and Landlord that it is ready to
take delivery of Tenant’s rail cars, and (ii) cooperate with Landlord to insure
that Landlord and other tenants on Landlord’s Property have access to the
Sidetrack on a 24 hour – 7 day a week basis for purposes of loading and
unloading rail cars (subject to the requirement that Landlord and the other
tenants use the Sidetrack in a commercially reasonable manner and cooperate with
Tenant to ensure that Tenant’s business is not unreasonably
disrupted). All activities of Tenant on the Sidetrack shall at all
times be in compliance with the terms and conditions of the Sidetrack Agreement,
and applicable federal, state and local laws, ordinances and regulations. To the
extent rail cars or locomotives are used exclusively by Tenant, Tenant shall
directly pay for or, if paid by Landlord, reimburse Landlord as Additional Rent
promptly for, any charges (including but not limited to fuel and maintenance
expenses) assessed by any railroad serving Landlord’s Property against rail cars
or locomotives used by Tenant, whether invoiced directly to the Tenant or
invoiced to Landlord. Notwithstanding the foregoing sentence, Tenant
shall not xxxx out Tenant’s rail cars or locomotives with Landlord as the
consignee, and Customer shall use its reasonable efforts to ensure that the
railroad does not in any way list Landlord as the consignee or otherwise as a
responsible party for such rail cars.
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(3) Trucks. Landlord
agrees to provide access to the Premises for trucks on a 24 hour – 7 day a week
basis.
(4) Marine
Vessels. Landlord agrees that marine vessels will be loaded
and unloaded on a first come, first serve basis; provided that once a marine
vessel is slotted in a berth at the Terminaling Facilities, Landlord will unload
such marine vessel as soon as reasonably practicable.
(5) Metering;
Reports. Landlord agrees to provide full access to Tenant to
the weigh scale used for inbound and outbound shipments on a 24 hour, 7 day a
week basis. All inbound and outbound shipments will scale in and out
on a calibrated scale provided by Landlord and approved by the State of Maryland
and any other appropriate regulatory authorities for accuracy and custody
transfer purposes. Weigh tickets will be provided on a daily basis
with all information reasonably requested by Tenant. Landlord will
manage all physical aspects of the weigh scale process, including but not
limited to the generation of the weigh tickets. Tenant will provide
the information required for the weigh tickets.
(6) Facilities. Tenant
shall at all times be required to supply and maintain in safe and working order
and in compliance with all law, rules and regulations all pipelines, flanges,
hoses and pumps required to load and unload any of Tenant’s trucks or rail
cars. Except for marine vessels, Tenant shall be solely responsible
for loading and unloading all of Tenant’s trucks and railcars using qualified
personnel. All obligations of Tenant under Section 9 of this
Amendment shall be deemed covenants and agreements of Tenant under the Lease,
and subject to all rights and remedies of Landlord under the Lease.
10. Except
as amended hereby, all other terms and conditions of the Lease remain in full
force and effect.
11. This
Agreement may be executed in any number of counterparts, all of which shall
constitute a single Agreement. The exchange of copies of this
Agreement and of signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement and may be used in lieu of
the original for all purposes.
12. Tenant
hereby covenants, warrants and represents to Landlord that Tenant has
no defenses, affirmative or otherwise, rights of setoff, rights of recoupment,
claims, counterclaims, actions or causes of action of any kind or
nature whatsoever against the Landlord or Atlantic or any past, present, or
future agent, attorney, legal representative, predecessor in interest,
affiliate, successor, assign, employee, director, or officer of the Landlord or
Atlantic (collectively, the "Landlord Group"), directly or indirectly, arising
out of, based upon, or in any manner connected with, any transaction, event,
circumstance, action, failure to act, or occurrence of any sort or type, whether
known or unknown, which occurred, existed, was taken, permitted, or begun prior
to the execution of this Amendment and occurred, existed, was taken, permitted,
or begun in accordance with, pursuant to, or by virtue of any of the terms or
conditions of the Lease or the Terminaling Agreement, or which directly or
indirectly relate to or arise out of or in any manner are connected with the
Lease or the Terminaling Agreement; to the extent of any such defenses,
affirmative or otherwise, rights of setoff, rights of recoupment, claims,
counterclaims, actions or causes of action exist or existed, such defenses,
rights, claims, counterclaims, actions and causes of action are hereby forever
waived, discharged and released. Tenant further acknowledges and agrees that the
Landlord Group is not in any way responsible or liable for the previous or
current condition of the business operations and/or financial condition of the
Tenant and that neither Landlord nor Atlantic has breached the Lease
or the Terminaling Agreement.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
written above.
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ATTEST/WITNESS:
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LANDLORD:
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XXXXXXXXXX
PARTNERS, LLC
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/s/ Xxxxx Xxxxxx
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By: /s/ Xxxxxx X. Xxxxxx | ||
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Xxxxxx
X. Xxxxxx,
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Authorized
Member
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Date:
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8/27/2010
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ATTEST/WITNESS:
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TENANT:
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NEW
GENERATION BIOFUELS
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HOLDINGS,
INC.
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/s/ Xxxx Xxxxxx
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By: /s/ Xxxx X. Xxxxxxxxx | ||
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Xxxx
X. Xxxxxxxxx
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Chief
Executive Officer
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Date:
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8/27/2010
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6
Exhibit
A
TERMINATION OF TERMINALING
SERVICES AGREEMENT
THIS TERMINATION OF TERMINALING
SERVICES AGREEMENT (“Agreement”) is entered into as
of August 27, 2010, between Atlantic Terminalling, LLC, a Maryland Limited
Liability Company (“Terminal
Operator”) and New Generation Biofuels Holdings, Inc., a Florida
corporation (“Customer”);
RECITALS:
1. Terminal
Operator and Customer are parties to that certain Terminaling Services Agreement
dated September 12, 2008 (the “Terminaling Services
Agreement”) for the Terminal located at 0000 Xxxxxxxxxx Xxx, Xxxxxxxxx,
Xxxxxxxx 00000.
2. Terminal
Operator and Customer have agreed to terminate the Terminaling Services
Agreement.
AGREEMENT
The Terminaling Services Agreement
shall automatically terminate and be of no further force or effect as of August
27, 2010 (the “Termination
Date”). Except as may be set forth in any separate document
executed as of the date of this Agreement, neither Terminal Operator nor
Customer shall have any further rights or obligations under the Terminaling
Services Agreement, except that the Indemnity provisions and other provisions
of the Terminaling Services
Agreement specifically designated to survive termination shall survive after the
Termination Date.
The parties have executed this
Agreement as of the date first written above.
| Customer: | Terminal Operator: | ||||
| New Generation Biofuels Holdings, Inc. | Atlantic Terminalling, LLC | ||||
| BY: |
/s/
Xxxx X. Xxxxxxxxx
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BY: |
/s/
Xxxxxx X. Xxxxxx
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| TITLE: |
Chief
Executive Officer
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TITLE: |
Managing
Member
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| DATE: |
8/27/10
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DATE: |
8/27/10
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1
Exhibit
B
Rail
Facilities
1
Exhibit
C
Sidetrack
Agreement
2
