Exhibit 10.42
LEASE
THIS LEASE, entered into as of the 19 day of January, 1999, by and
between XXXXXXX & XXXXXXX, LLC, its successors and assigns, ("Lessor"), and
TRANSIT GROUP TRANSPORTATION, LLC ("Lessee").
ARTICLE I.
Premises
Section 1. The following exhibits are incorporated herein and made a
part of this Lease:
Exhibit "A-1" Legal Description
Section 2. Lessor does hereby lease unto the Lessee, and the Lessee
does hereby take as lessee, the following described real property situated in
DeSoto County, Mississippi, to-wit:
The parcel known as 0000 Xxxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxxx, a
legal description which is shown on the attached Exhibit "A-1".
together with rights, easements and appurtenances thereto belonging,
hereinafter called the "Premises," subject nevertheless to: (1) any state of
facts an accurate survey may show; (2) rights and easements, if any, in favor
of any public utility company, including, but not limited to, gas, electric,
water, telephone, and sewer easements; (3) present and future valid zoning
laws, ordinances, resolutions and regulations of any governmental authority
having or asserting jurisdiction, and all present and future ordinances,
statutes, laws, regulations, and order of all boards, bureaus, departments,
agencies, commissions or bodies or any municipal, county, state or federal
sovereigns, now or hereafter acquiring or asserting jurisdiction over the
leased property; (4) the effect of all present and future municipal, state or
federal laws, orders and regulations relating to Lessee, sublessees, or
occupants of the Premises, their rights and rentals to be charged for the use
of the leased property or any portion thereof; (5) liens and encumbrances of
record; (6) the provisions, restrictions, reservations, and easements provided
in this Lease; and (7) Restrictive Covenants, if any, applicable to the
subdivision in which the Premises is located.
ARTICLE II.
Term/Renewal
Section 1. This Lease shall be effective as of the date hereof (the
"Commencement Date") and shall be in effect throughout the "Lease Term" as
hereinafter defined.
Section 2. The Lease Term of this Lease shall be for a period of five
(5) years commencing on January 19, 1999, and ending on January 18, 2004.
Section 3. Upon giving six (6) months prior written notice to Lessor,
Lessee shall have the option to elect early termination of this Lease;
provided, however, that Lessee shall pay to Lessor an Early Termination Fee.
The amount of the Early Termination Fee shall be a sum equal to $3,250 per
month for the period from the effective date of such early termination until
January 18, 2004, prorated for the 18-day period from January 1, 2004 through
January 18, 2004. The Early Termination Fee will be due and payable each month
in the same manner as the Base Rent payments.
ARTICLE III.
Rental
Section 1. Lessee shall pay as base rent ("Base Rent" in accordance
with the following schedule:
1/19/99 to 1/18/2004 $7,250.00 per month, prorated for any
partial month based upon the number of days within the Lease
Term.
Base Rent shall be payable in monthly installments in advance on the
first (1st) day of each and every calendar month during the Lease Term. If Base
Rent, Additional Rent, or any other payment owed to Lessor by Lessee is not
paid within five (5) days after Lessee has received written notice of Lessor=s
failure to receive such payment, Lessee shall pay to Lessor upon demand a late
payment fee of five percent (5%) of the delinquent obligation.
This Lease is a net-net-net lease (with Lessee to pay, in addition to
Base Rent, all taxes, insurance, ordinary maintenance (as provided in Article
VII), janitor expenses, utilities, pest control, any tax assessments,
assessments pursuant to the subdivision Restrictive Covenants, window cleaning,
grounds maintenance, interior and exterior lighting, interior painting, window
and door repairs and refinishing, as additional rent [the "Additional Rent"],
except Structural Repairs [as hereinafter defined]), and all rentals and other
expenses owing hereunder by Lessee shall be paid in all events and without
notice or demand, and without counterclaim, set off, deduction, defense,
abatement, suspension, deferment or diminution of any kind. It is the express
intent and understanding that at no time throughout the term of this Lease
shall the rentals provided for herein be reduced by any taxes, assessments,
charges, insurance premiums and expenses, utilities, maintenance charges and
expenses, or other costs or expenses owing hereunder by Lessee related to the
building, and that rentals shall be absolutely net-net-net to Lessor.
ARTICLE IV.
Building and Improvements
Section 1. The buildings, structures, parking areas, drives and
other improvements on the Premises are hereinafter sometimes jointly called
the AImprovements.@
Section 2. Lessor shall be responsible for keeping the structure of
the Improvements in good repair which shall include paving the parking lot,
roof repair, repair to the structure of the buildings, replacement and repair
of plumbing in excess of $500 and replacement and repair of heating and cooling
systems, but not repairs caused by the negligence of Lessee (AStructural
Repairs@). Lessee may, upon obtaining Lessor's prior written approval of all
plans and specifications and proposed contractors, which approval shall not be
unreasonably withheld, erect fencing on the Premises, and such fencing shall
become a part of the Improvements. In addition, Lessee may, upon obtaining
Lessor's prior written approval of all plans and specifications and proposed
contractors, construct Lessee's tenant improvements, if any (the ATenant
Improvements@), at its sole cost and expense. Lessee agrees to construct and
maintain said Tenant Improvements in accordance with the following conditions:
(a) Lessee agrees that the Tenant Improvements, as well as any
alterations or repairs to or in and about the Premises or any Improvements
thereon made by Lessee shall be in compliance with the applicable laws and
ordinances.
(b) Lessee agrees that the Tenant Improvements shall, at Lessee's sole
cost and expense, be removed from the Premises at the expiration of this Lease
and the Premises restored to their original condition and appearance,
reasonable wear and tear excepted, unless Lessor and Lessee agree otherwise.
Section 3. Lessee shall be entitled to terminate this Lease if any
Structural Repairs necessary for Lessee=s operations on the Premises are not
completed by Lessor within a reasonable period of time (not to exceed 180 days)
after written notice from Lessee to Lessor.
ARTICLE V.
Use of Premises
Section 1. The Premises shall be used solely for the operation of a
trucking terminal and distribution facility with related offices, all in
accordance with all applicable law.
Section 2. All utilization of the Premises shall be subject to the
terms and conditions of this Lease.
Section 3. Lessee shall not use or permit to be used any part of the
Improvements on the Premises for any disorderly or illegal purposes or for any
dangerous, noxious or offensive trade or business and will not cause, maintain
or allow any nuisance in, at or on the Premises or Improvements. Lessee agrees
and covenants that Lessee will take appropriate measures to prevent and will
not engage in or knowingly permit any illegal activities at the Premises, and
that Lessee will comply with all laws, ordinances, regulations and requirements
of any governmental body or authority relating to the Premises including,
without limitation, all laws, ordinances, regulations and requirements
pertaining to health and life safety, construction of Improvements on the
Premises, zoning and land use. Lessee hereby represents and warrants that no
portion of the Premises or Improvements has been or will be funded with the
proceeds of any illegal activity. Lessee shall not commit or permit to be
committed any waste upon the Premises or Improvements.
ARTICLE VI.
Taxes
Section 1. This Lease shall be a "net-net-net" Lease to Lessor. Lessee
shall pay, on or before the last day when payment can be made without interest
or penalty, all taxes levied upon and assessed against the Premises and
Improvements which are due and payable during the Lease Term. Paid tax receipts
or other evidence of such payment shall be sent by Lessee to Lessor prior to
any such taxes becoming delinquent or subject to any penalties or interest.
Taxes assessed covering a fractional year at the commencement or termination of
this Lease shall be prorated between the parties provided that if any such
taxes are assessed only for the portion of the year during which Lessee is
entitled to possession of the Premises, then Lessee shall pay all such taxes
for such portion of the year. Lessor shall ensure that all bills which Lessor
receives, if any, for taxes and any other government charges which are to be
paid by Lessee are sent or forwarded to Lessee within sufficient time to permit
timely control thereof and/or remittance in the normal course of business,
provided that Lessee shall contact all taxing authorities and request copies of
all tax statements to be sent directly to Lessee.
Section 2. Special tax assessments, if any, lawfully applicable to the
Premises shall be paid by Lessee. Those installments which were due and payable
before the commencement of the original term of the Lease or which are due and
payable after the termination of the Lease shall be the sole responsibility and
expense of the Lessor. Lessor shall give to Lessee timely notice of, and any
opportunity to participate in, all hearings and negotiations regarding special
tax assessments affecting the Premises.
Section 3. Lessee shall have the right in its name, or the name of
Lessor if required, to contest or review by administrative or legal proceedings
all or any part of any tax or special assessment which Lessee is required to
pay hereunder. Lessor shall cooperate, but without incurring any monetary cost
or expense, in such reasonable ways as may be necessary to further any such
procedure by Lessee. The party contesting any tax, assessment charge or lien of
any kind so long as the matter shall remain undetermined by final judgment
shall not be considered in default hereunder for the nonpayment thereof;
provided, however, that neither party may under these provisions permit the
Premises or Improvements situated thereon to be sold or forfeited, and failure
by the contesting party to do what is necessary to prevent any such sale or
forfeiture within ten (10) days from the publication or receipt of notice of
sale or forfeiture shall be deemed to be a default hereunder; and provided
further, that Lessee, at the request of Lessor, shall furnish assurance
reasonably satisfactory to Lessor that Lessee will indemnify the Lessor against
any loss or liability by reason of such contest. Lessor and Lessee shall each
give to the other timely notice of, and an opportunity to participate in, all
hearings and negotiations regarding such taxes and assessments.
Section 4. Any sales tax, rental tax, gross receipts, or other tax or
charge (except for state or federal tax on net income or any inheritance or
estate tax), which may at any time during the term of this Lease become due
from Lessor on account of receipt of or right to receive rental payments under
the terms of this Lease, shall be payable by Lessee or its successor in
interest.
ARTICLE VII.
Maintenance
Section 1. Lessee, at Lessee's expense, shall keep the Premises and
Improvements in good and satisfactory order and repair, replacing all broken
glass with glass of the same size and quality of that broken, shall keep the
Premises, Improvements and all things connected therewith, including adjacent
sidewalks, driveways, ramps, parking areas, and private roadways in a clean and
healthy condition and in good repair, and Lessor shall maintain the structure
of the Improvements and the related Structural Repairs, in each case consistent
with standards in DeSoto County, Mississippi, for comparable trucking
terminals, distribution facilities, and related offices, and in accordance with
the laws and ordinances of each municipal, county, state, and federal
jurisdiction and the direction of the public officers having jurisdiction over
the Premises or the Improvements, during the term of this Lease, at their own
expense, respectively. On the termination of this Lease, in any way, Lessee
will yield up the Premises and the Improvements to Lessor in good condition and
repair, loss by fire or other casualty and ordinary wear and tear excepted.
Neither Lessor nor Lessee shall, during the term of this Lease or thereafter,
be required to make any repairs, replacements, or capital improvements to the
Premises and Improvements which are not specifically provided for herein.
Section 2. If the Premises, Improvements, and the other items above
mentioned are not kept in repair by Lessee or Lessor, as hereinabove agreed,
the other party may give the defaulting party not less than thirty (30) days'
notice (however, if the repairs complained of require immediate attention, then
reasonable notice shall be given as the circumstances demand) demanding that
such party make the required repairs. If the defaulting party does not promptly
undertake to make such repairs, the other party may at the expiration of thirty
(30) days after such notice, or at the expiration of such reasonable notice if
such repairs are urgent, as the case may be, have the repairs made and charge
the cost thereof to the defaulting party.
ARTICLE VIII.
Utilities
Section 1. Lessee shall pay all charges for steam, gas, electricity,
lights, water, heat, power and other services used in and for the Premises and
Improvements and shall indemnify and hold Lessor harmless against any liability
on such account. Lessor shall grant to the utility boards and agencies
reasonable easements and permits to allow the construction of such service to
Lessee.
ARTICLE IX.
Insurance
Section 1. During the term of this Lease, the Lessee agrees to keep,
at its expense, the Improvements located on the Premises, insured on the
so-called "all risk" form, with endorsements (including loss of rents) as
reasonably required by Lessor, in an amount not less than that currently
maintained on the Premises by Lessor. All such policies shall be in companies
mutually acceptable to Lessor and Lessee, and shall name the Lessor and Lessee
as insureds as their respective interests may appear. Notwithstanding the
foregoing provisions, such policy may contain a lender's loss payable
endorsement in favor of any persons, firms or corporations who may have a
mortgage lien on the Premises. Prior to Lessee's taking possession of the
Premises and throughout the term of the Lease, Lessee agrees to furnish
evidence to Lessor from time to time that the required insurance is in full
force. Notwithstanding the foregoing provisions, Lessor shall bear the expense
of builder's risk insurance with respect to construction to be performed by
Lessor's contractor, and Lessee shall bear the expense of builder's risk
insurance with respect to construction to be performed by Lessee's contractor.
Section 2. Lessee shall, during the entire term hereof, keep in full
force and effect a policy of public liability insurance with respect to the
Premises and the business operated by Lessee in which both Lessor and Lessee
shall be named as parties covered thereby in which the limits of liability
shall not be less than the greater of (a) $5,000,000.00, or (b) the limits
customarily maintained for similar businesses. Lessee shall furnish Lessor with
a certificate or certificates of insurance or other acceptable evidence that
such insurance is in full force at all times during the term hereof.
Section 3. All insurance provided for in this Article or other
Articles of this Lease shall be effected under valid and enforceable policies
issued by insurers of recognized responsibility authorized to issue such
insurance in the State of Mississippi. Not less than thirty (30) days prior to
the expiration dates of the policies theretofore furnished pursuant to this
Article IX, originals of the renewal policies for such insurance shall be
delivered by Lessee to Lessor, except that the Lessee may, in lieu of
delivering the originals of the policies, deliver to Lessor certificates of
insurance. Within thirty (30) days after the premium of each such policy shall
become due and payable, and the amount thereof determined, Lessor shall be
furnished by Lessee with evidence satisfactory to Lessor of such payment by
Lessee.
Section 4. In the event of a loss payable under said insurance
policies, the proceeds thereof, with the consent of and subject to the rights
of any lender or lenders who may from time to time hold loans for which the
Premises are security, shall be used in the following manner:
(a) In the event that loss results from damage which Lessee is
obligated to repair under the provisions of Article X hereof, the proceeds
shall be used to pay the cost of such repairs.
(b) In the event that loss results from total or substantial
destruction of the Improvements and Lessee rebuilds said Improvements under the
provisions of Article X hereof, then such proceeds shall be used for such
rebuilding, with any balance remaining being paid to Lessee (subject to any
rights of lenders as provided in Article X).
(c) In the event loss results from total destruction of the
Improvements and Lessee cannot rebuild within 180 days pursuant to Section 1 of
Article X herein, then the proceeds from such loss will first be used to pay in
full any loan for which the Premises are security and the balance, if any,
shall be paid to Lessor, and Lessee shall have the right to immediately
terminate this Lease without penalty.
Section 5. To the extent permitted without invalidating the policies
of insurance required pursuant to this Lease, Lessor and Lessee each hereby
release and waive all right of recovery against each other, irrespective of any
carelessness or negligence, for any loss or damage sustained to the property of
the other, to the extent such loss or damage is covered under the terms and
provisions of any policy of insurance in force at the time of such loss, and
Lessor and Lessee, to the extent permitted as aforesaid, each agree to assign
any subrogation rights against the other to any insurer. This release and
waiver of subrogation shall extend to such losses and amounts thereof as are
covered by insurance as provided herein, and shall not release Lessee from its
undertaking to provide insurance as provided in this Lease. It is intended that
the provisions of this paragraph of this Lease be construed consistently to
give the parties the fullest benefit of any available insurance proceeds and
protection. Each party agrees, to the extent the same may be required, to
notify its insurance carriers of the pertinent provisions of this Lease
respecting insurance, indemnity, and subrogation.
ARTICLE X.
Destruction
Section 1. In the event that the Improvements or any part thereof are
partially or totally destroyed by fire or other casualty so that repair can be
completed within 180 days (so as to not render the Improvements unfit for the
purpose for which they were constructed) at any time or times during the term
of this Lease, Lessor shall have the option to elect (i) to rebuild the
Premises, but only to the extent of any insurance proceeds available therefor;
or (ii) to require Lessee to commence the work of repair or replacement with
due diligence and carry the work of repair or replacement through to completion
without undue interruption or delay, other than interruptions or delays beyond
the control of Lessee. In such event, Lessee shall be entitled to receive the
proceeds of the insurance, hereinbefore required under Article IX hereof, to
pay for the cost of such repairs or replacements.
Section 2. In the event that the lender or lenders holding loans
secured by said Premises at the time of said total or substantial destruction
shall refuse to consent to the use of said proceeds for rebuilding but shall
require the same to be applied to the payment of their loan, then and in that
event, the proceeds shall be collected and remitted to Lessor and the lender as
their respective interests may appear and this Lease shall terminate.
ARTICLE XI.
Covenant to Hold Harmless
Section 1. Lessor shall not be liable to Lessee or to any other person
in or about the Premises for any loss, damage or injury sustained by them,
unless caused by Lessor's gross negligence or willful misconduct.
Section 2. Lessee covenants and agrees to pay all costs and expenses
and assume all liabilities of any kind or nature arising out of or in any way
connected with Lessee's (or any affiliate of Lessee) use of the Premises or
Improvements, unless caused by Lessor's gross negligence or willful misconduct,
and covenants and agrees that it will indemnify, defend and hold harmless
Lessor from all liability, loss, cost, damage, expenses and judgments and
injury to persons or property arising therefrom, unless caused by Lessor's
gross negligence or willful misconduct. Except as set forth in Article XV,
Lessee shall not give cause for the filing of any liens against the Premises,
except for liens which arise because of bona fide disputes between the Lessee
and any contractor or subcontractor, in which case said liens shall be bonded,
and in any event Lessee agrees that any lien claims will be satisfied prior to
execution of any judgment.
Section 3. Lessor agrees to indemnify, defend and save Lessee harmless
against and from any and all claims, loss, liability, damage, cost or injury
arising from or out of any acts of gross negligence or willful misconduct of
Lessor, or any of its agents, contractors, servants, employees, licensees or
sublicensees.
ARTICLE XII.
Eminent Domain
Section 1. If the whole or any part of the Premises shall be taken by
public authority or any entity entitled to exercise the power of eminent
domain, then the term of this Lease shall cease on the part so taken from the
date possession of that part shall be taken by the condemnor and the rent shall
be paid up by Lessee to that date. All proceeds received for the Premises and
Improvements shall, as between Lessor and Lessee, belong solely to Lessor. All
proceeds received for the Tenant Improvements and Lessee's moving expenses
shall, as between Lessor and Lessee, belong solely to Lessee. Each party
reserves the right to contest any award made by the condemning authority
applicable to a taking of such party's interest. If the portion taken by any
public authority or other entity entitled to exercise the power of eminent
domain or the sum of the portions in the case of additional taking is such as
to make Lessee's operations on the Premises economically nonfeasible in
Lessor's reasonable judgment, then from the day that Lessee first receives
notice of the intention of the public authority or other entity entitled to
exercise the power of eminent domain, then Lessee thereafter shall have the
right for a period of ninety (90) days to terminate this Lease by serving
written notice upon the Lessor within said ninety (90) day period. In the event
Lessee does not exercise said right to terminate this Lease within said ninety
(90) day period, or if said taking is such as not to entitle Lessee to
terminate this Lease, then this Lease shall continue and Lessee shall continue
in the possession of the remainder of the Premises under the terms herein
provided, and there shall be no reduction in rental. In the event that Lessee
elects the limited option to terminate this Lease in accordance with the
provisions of this Article XII, and the condemning agency thereafter abandons
its intention to exercise its right of eminent domain, then the Lessee shall
have thirty (30) days from and after the date Lessee receives written notice
from Lessor or from said condemning agency (whichever first occurs) of the
abandonment of such intention in which Lessee can rescind its exercise of
option to terminate provided that Lessee is not in default under the terms of
said Lease.
Section 2. If at the time of payment of any condemnation award, the
Lessee or its successor is indebted to Lessor or its successor for rent or for
any other sum due pursuant to the terms of this Lease, then said sum shall be
paid to Lessor from any sum otherwise due to Lessee or its successor from said
condemnation award.
ARTICLE XIII.
Warranty and Quiet Enjoyment
Section 1. Subject to the exceptions set forth in Article I, the
Lessor covenants and warrants that Lessor has a good and fee simple title to
the Premises legally described in Article I and that Lessor has full right and
lawful authority to enter into this Lease for the full term hereof, and that
Lessee, on paying the rent and performing all of the other terms, conditions
and provisions of this Lease to be performed by the Lessee, shall peaceably and
quietly have, hold and enjoy the Premises without hindrance by Lessor for the
full term of this Lease, subject to the provisions herein contained. Lessor
shall have the right at all reasonable times to inspect the Premises and the
Improvements including inspection by Lessor's agents and designees.
ARTICLE XIV.
Assignment and Subletting
Section 1. Lessor shall have the right to sell, transfer, convey or
assign, in whole or in part, its right, title and interest in the Premises. In
the event of any such sale, other transfer or exchange of the Premises by
Lessor and assignment by Lessor of this Lease, Lessor shall be and is hereby
entirely freed and relieved of all liability and obligation under or deriving
from this Lease, provided that such purchaser or assignee shall expressly
assume said covenants and obligations of Lessor hereunder and shall have a
financial net worth at least equal to that of Lessor.
Section 2. Lessee shall not assign this Lease or sublet all or any
part of the Leased Premises without the prior written consent of Lessor, which
will not be unreasonably withheld. Lessor shall have the option, upon receipt
from Lessee of written request for Lessor's consent to subletting or
assignment, to cancel this Lease as of the date the requested subletting or
assignment is to be effective. The option shall be exercised, if at all, within
fifteen (15) days following Lessor's receipt of written notice, by written
notice to Lessee of Lessor's intention to exercise the option. Lessor shall
not, however, be deemed to consent to assignment or sublease by virtue of not
responding to the request by Lessee hereunder within such fifteen (15) day
period. In the event of any assignment or subletting, Lessee shall be and is
hereby entirely freed and relieved of all liability and obligation under or
deriving from this Lease, provided that such assignee shall expressly assume
said covenants and obligations of Lessee hereunder and shall have a financial
net worth at least equal to that of Lessee.
ARTICLE XV.
Mortgages
Section 1. Lessee accepts this Lease subject and subordinate to any
recorded mortgage or deed of trust presently existing or hereafter placed upon
the Premises, and to any renewals, modifications and extensions thereof. The
foregoing provisions shall be self-operative and no further instrument of
subordination shall be required for the purpose. Anything in the foregoing to
the contrary notwithstanding, in the event of a foreclosure under any such
mortgage or deed of trust, this Lease shall continue in full force and effect
and Lessee shall attorn to the purchaser at such foreclosure sale, as Lessor.
Any such mortgage or deed of trust may at any time, at the instance of the
holder of the note secured thereby, be subordinated to this Lease, such
subordination to be accomplished by the execution by such holder of an
instrument of subordination and recording of the same in the recording office
where such mortgage or deed of trust is recorded; provided, however,
notwithstanding that this Lease may be (or may be made to be) superior to such
mortgage or deed of trust, the provisions of the mortgage or deed of trust
governing the rights of the mortgagee with respect to condemnation or insurance
proceeds shall be prior and superior to and shall prevail over any contrary
provisions contained in this Lease with respect to the payment or usage
thereof.
ARTICLE XVI.
Rights of Landlord to Cure Defaults Generally
Section 1. If the Lessee fails to perform any of the terms and
conditions of this Lease which in any manner adversely affects Lessor, then
Lessor may, at its option, proceed to cure said default by payment of money or
doing such other acts as may be necessary to cure the same and any sums so paid
or expenses so incurred shall be promptly paid by Lessee with the next rental
payment after thirty (30) days' written notice from Lessor.
Section 2. Any and all sums paid or advanced, or reasonable expenses
incurred for and on behalf of Lessee provided for in Section 1 above and any
and all rental payments which are delinquent more than thirty (30) days shall
draw interest at the (a) "prime" rate charged by First Mississippi Bank
National Association, or its successors, plus four percent (4%), or (b) maximum
rate permitted by applicable law, whichever is less.
ARTICLE XVII.
Default
Section 1. In the event that a voluntary petition in bankruptcy is
filed on behalf of Lessee, or in the event Lessee be declared a bankrupt, or of
an assignment by Lessee for the benefit of creditors, Lessor may at its option
declare this Lease terminated and upon the making of such election to
terminate, all interest and rights of Lessee to possession of the leased
Premises and Improvements shall terminate. Should Lessor not elect to exercise
its right to terminate this Lease, the Lessor may accept rent from any such
receiver or other officer in possession of the Premises for the term of such
occupation without impairing or affecting in any way the rights of Lessor
against Lessee under this Lease.
Section 2. In case default be made by Lessee at any time in the due
payment of any sum payable by Lessee under the provisions hereof and such
default shall continue for a period of fifteen (15) days after written demand
by Lessor to Lessee or if default shall be made by Lessee in the due observance
and performance of any other covenant, condition or stipulation herein agreed
by Lessee to be by it observed or performed, and such default shall continue
for a period of thirty (30) days after written notice by Lessor to Lessee,
detailing the particulars of such default and requiring Lessee to make good the
same, then Lessor at any time thereafter, shall have the full right, at its
election, to exercise any of the following rights and remedies; provided that
if such default is not reasonably curable within such 30-day period, Lessor
shall not be permitted to exercise any of its rights or remedies if Lessee
commences to cure said default within such 30-day period and diligently pursues
the same to completion:
(a) To enter upon the Premises and again have, repossess and
enjoy the same as if this Lease had not been made, and all terms,
conditions, covenants and obligations of this Lease on the part of
Lessors to be performed shall cease and terminate, without prejudice,
however, to the right of Lessor to recover from Lessee all Rent
accrued hereunder as of the date of such entry by Lessor;
(b) To pursue all other rights and remedies to which Lessor
may be entitled hereunder, at law or in equity; and
(c) No waiver of breach of any of the covenants of this Lease
shall be construed to be a waiver of any succeeding breach of the same
on any other covenant.
Section 3. Notwithstanding any termination of this Lease, the Lessee
shall continue to be liable to Lessor for the payment of any unpaid assessment,
tax, lien, mortgage, utility charge, or any other payment required to be made
by Lessee to the date of said cancellation.
ARTICLE XVIII.
Termination
Section 1. Any building and improvements and fixtures placed upon the
leased Premises by the Lessee shall be and remain the property of the Lessee so
long as this Lease shall remain in effect. Upon termination of this Lease, by
expiration of time, by agreement or by default of the Lessee, any improvements
and fixtures, shall be left in place and become the property of the Lessor, its
successors and assigns, together with all rights therein of the Lessee, its
successors and assigns. To make this provision self executing, Lessee covenants
and agrees that, upon termination of this Lease, title to all improvements and
fixtures belonging to Lessee shall pass to Lessor, its successors and assigns
forthwith and without the necessity of any further conveyance or assignment.
Lessee agrees to execute any conveyance or assignment if necessary to complete
such transfer if requested by Lessor to do so.
ARTICLE XIX.
Notices
Section 1. It is mutually agreed that any notice given by the Lessor
to the Lessee shall be given either by (1) delivering the same to the Lessee by
personal delivery or by overnight delivery or courier service, or (2) by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Lessee at the following address:
TO: Transit Group Transportation, LLC
President
Overlook III, Suite 1740
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
COPY TO: Xxxxxx XxXxxxxx
Womble, Carlyle, Xxxxxxxxx & Rice, PLLC
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
and also, that any notice to be given by the Lessee to the Lessor shall be
given either by (1) delivering the same to the Lessor by personal delivery or
by overnight delivery or courier service, or (2) by registered or certified
mail, return receipt requested, postage prepaid, addressed to the Lessor at the
following address:
TO: Xxx Xxxxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
COPY TO: Xxxx X. Xxxxxx, Xx.
Baker, Donelson, Bearman
& Xxxxxxxx
0000 Xxxxx Xxxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Any assignee of Lessee or assignee of an assignee shall furnish its name and
address to Lessor in writing and upon failure to do so then notice to Lessee as
above provided will be deemed notice to assignee.
Notice sent by either Lessor or Lessee by certified mail which is
refused shall be effective upon attempted delivery.
Section 2. All parties shall give the others reasonably prompt notice
of any change of address, and until such notice any party may rely on the most
recent addresses furnished. Neither Lessee nor Lessor shall designate more than
two (2) addresses to receive notices.
ARTICLE XX.
Merger
Section 1. This Lease shall merge and terminate any prior negotiation
and agreements between the parties hereto regarding the Premises and
Improvements.
ARTICLE XXI.
Memorandum Lease
Section 1. The parties agree that this Lease shall not be recorded,
but that at the election of Lessee or Lessor, a memorandum of this Lease may be
executed and may be recorded in DeSoto County, Mississippi or in some other
appropriate governmental office.
ARTICLE XXII.
Waiver
Section 1. None of the covenants, terms or conditions of this Lease
shall be in any manner altered, waived, modified, changed or abandoned except
by the written agreement of Lessor and Lessee duly signed and delivered. One or
more waivers of any covenant or condition by any party shall not be construed
as a waiver of a subsequent breach of the same or any other covenant or
condition by said party. The consent or approval by the Lessor to or of any act
by Lessee requiring Lessor's consent or approval shall not be deemed to waive
or render unnecessary Lessor's consent or approval to or of any subsequent
similar act by Lessee.
ARTICLE XXIII.
Certificate
Section 1. Lessee shall, without charge, at any time and from time to
time within ten (10) days after written request by Lessor, deliver to Lessor a
written instrument, certifying whether Lessor has or has not, as the case may
be, made any default in the performance by Lessor of all agreements, terms,
covenants and conditions on Lessor's part to be performed and if it does know
any default, specifying same.
ARTICLE XXIV.
Holding Over
Section 1. In the event of holding over by Lessee after the expiration
or termination of this Lease, the holdover Lessee shall be as a tenant at will
and all of the terms and provisions of this Lease shall be applicable during
that period, except that Lessee shall pay Lessor as rental for the period of
such holdover an amount equal to one hundred twenty-five percent (125%) of the
Base Rent plus one hundred percent (100%) of the Additional Rent which would
have been payable by Lessee had the holdover period been a part of the Lease
Term. Lessee agrees to vacate and deliver the Premises to Lessor upon not less
than thirty (30) days' written notice from Lessor to vacate; and during any
holdover period, Lessee shall be entitled to terminate the holdover tenancy
(and thereby terminate its obligations hereunder for Base Rent and Additional
Rent) by giving Lessor at least ninety (90) days' prior written notice of its
intent to vacate the Premises. The rental payable during the holdover period
shall be payable to Lessor in the same time and manner as provided during the
Lease Term. No holding over by Lessee, whether with or without consent of
Lessor, shall operate to extend the Lease Term unless the parties shall agree
otherwise in writing.
ARTICLE XXV.
Confirmation
Section 1. Lessor agrees, upon the request of Lessee, to execute and
deliver to Lessee, a letter of confirmation confirming that Lessee has a
leasehold interest in the Premises pursuant to the terms of this Lease and
certifying whether Lessee is or is not, as the case may be, in default
hereunder and if Lessor does know of any default, specifying same.
ARTICLE XXVI.
Force Majeure
Section 1. Neither party shall be required to perform any covenant or
obligation in this Lease, or be liable in damages to the other, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by Force Majeure.
ARTICLE XXVII.
Entire Agreement
Section 1. This Lease contains the entire agreement between the
parties hereto and no term or provisions hereof may be changed, waived,
discharged or terminated unless the same be in writing, executed by both
parties hereto.
ARTICLE XXVIII.
Partial Invalidity
Section 1. If any provision of the Lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the circumstances other than those as to which it is invalid or unenforceable,
shall be enforced to the fullest extent permitted by law.
ARTICLE XXIX.
Applicable Law
Section 1. This Lease shall be construed and enforced in accordance
with the laws of the State of Mississippi.
ARTICLE XXX.
Article Headings
Section 1. The article headings contained herein are inserted only for
convenience of reference and are in no way to be construed as a part of this
Lease or as a limitation on the scope of the particular Articles to which they
refer.
ARTICLE XXXI.
Binding on Transferees, Grantees, Etc.
Section 1. This Lease shall be binding upon the transferees, grantees
and successors in interest of the Lessor and Lessee, or any assignees or
sublessees of Lessee herein. Nothing herein, however, shall be construed to
allow Lessee to assign or sublet contrary to the provisions and conditions set
forth in this Lease. Lessor is hereby granted the right to assign its rights
under this Lease in accordance with the terms hereof.
ARTICLE XXXII.
Relationship of Parties
Section 1. The relationship of the parties hereto is that of Lessor
and Lessee and it is expressly understood and agreed that Lessor does not in
any way nor for any purpose become a partner of Lessee or a joint venturer with
Lessee in the conduct of Lessee's business or otherwise.
ARTICLE XXXIII.
Time of the Essence
Section 1. Time is expressly declared to be of the essence in this
Lease.
ARTICLE XXXIV.
Quitclaim
Section 1. At the expiration or earlier termination of this Lease, as
in this Lease provided, Lessee shall execute, acknowledge and deliver to Lessor
within ten (10) days after written demand from Lessor to Lessee, any quitclaim
deed or other document required by any reputable title company to remove the
cloud of this Lease from the real property subject to this Lease.
ARTICLE XXXV.
Provisions of Law Deemed Included
Section 1. Each and every provision and clause required by law or
regulation to be included in this Lease shall be deemed to be included herein,
and this Lease shall be read, construed and enforced as though the same were
included herein. If, through mistake, inadvertence or otherwise, any such
provision or clause is not included herein or is incorrectly included herein,
then upon application of either party hereto, this Lease shall forthwith be
amended to include the same or to correct the inclusions of the same.
ARTICLE XXXVI.
Election of Remedies Not Exclusive
Section 1. It is mutually agreed by the Lessor and Lessee that the
various rights, powers, options, elections, privileges and remedies of Lessee
and Lessor shall be cumulative and no one of them shall be exclusive or
exclusive of rights and privileges granted to either party by statute.
ARTICLE XXXVII.
Attorney's Fees
Section 1. In the event it is necessary for either party to employ an
attorney to enforce the terms of this Lease, or file an action to enforce any
terms, conditions or rights under this Lease, or to defend any action or
arbitration, then the prevailing party in any such action shall be entitled to
recover from the other, all reasonable attorney's fees, costs and expenses as
may be fixed by the court, and such attorney's fees, costs and expenses may be
made a part of any award or judgment entered.
ARTICLE XXXVIII.
No Broker or Commission
Section 1. No broker or agent has been involved or participated in
this transaction, and no commission or other fee shall be paid to any agent or
broker with respect to this Lease or the transaction contemplated hereby.
[EXECUTION SET FORTH ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have hereto set their hands on the
date and year in this Lease first written.
LESSOR:
XXXXXXX & XXXXXXX, LLC
By: /s/ Xxx Horvath_____________________
Title: Chief Manager_______________________
LESSEE:
TRANSIT GROUP TRANSPORTATION, LLC
By: /s/ Xxxxxx X. Belyew________________
Xxxxxx X. Xxxxxx, President
EXHIBIT "A-1"
PROPERTY DESCRIPTION
PROPERTY IN DESOTO COUNTY, MISSISSIPPI:
Xxx 0, Xxxxx Xxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx AA@, Fourth Revision,
situated in Section 00, Xxxxxxxx 0, Xxxxx, Xxxxx 6 West, DeSoto
County, Mississippi as per plat recorded in Plat Book 37, Page 52,
Chancery Clerk=s Office, DeSoto County, Mississippi.
