EXHIBIT 10.33
COMMERCIAL SUB-LEASE AGREEMENT
THIS LEASE is made between the Landlord and the Tenant identified in the Basic
Lease Provisions below, and constitutes a lease between the parties of the
"Leased Premises" as identified in the Basic Lease Provisions below, on the
terms and conditions and with and subject to the covenants and agreements of the
parties hereinafter set forth.
W I T N E S S E T H:
A. Basic Lease Provisions.
The following are certain lease provisions which are part of, and, in certain
instances, referred to, in subsequent provisions of this lease:
(1) Date of Lease: April 26, 2004
(2) Landlord's Name and Address: Carolina Truck Connection 000 Xxxxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
(3) Tenant's Name and Address: XRG Logistics, Inc. 0000 Xxxxxxx Xx. Xxxxx 000.
Xxxxx, XX 00000
(4) Premises: 000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000.
(5) Commencement Date: At closing.
(6) Expiration Date: 24 Months.
(7) Fixed Minimum Annual Rental: $1500.00 per month.
(8) Permitted Use: For the operations of the operations of XRG Logistic, Inc, a
truck company including but not limited to the truck yard, trailer storage
yard, administrative facilities and shop.
(9) State: North Carolina
X. Xxxxx and Term.
(1) Premises. Landlord is the owner of certain premises, including all buildings
and permanent improvements thereon, hereinafter referred to as the "Premises".
Landlord, in consideration of the rent to be paid and the covenants to be
performed by Tenant, does hereby demise and lease unto Tenant, and Tenant hereby
rents from Landlord, the Premises.
(2) Commencement and Ending Day of Term. The original term of (the "Original
Term") this Lease shall commence on the Commencement Date set forth in the Basic
Lease
Provisions. The term shall end on the Expiration Date set forth in Basic Lease
Provisions, unless sooner terminated or extended as provided below.
C. Rent.
(1) Minimum Rent. The fixed minimum annual rental (the "Minimum Rental") during
the term of this Lease shall be the respective sums set forth in the Basic Lease
Provisions, which sums shall be payable by Tenant in equal consecutive monthly
installments on or before the fist day of each month, in advance, at the office
of Landlord, or such other place as Landlord may designate, without any prior
demand therefore and without any deductions or set-off whatsoever. Should the
Commencement Date or the date upon which this Lease terminates be a date other
than the first day of the calendar month, then the Minimum Rental for any month
in which either date falls shall be prorated upon a daily basis based upon a
thirty (30) day calendar month.
(2) Tenant's Tax Obligation. Tenant agrees to pay to Landlord, or on behalf of
Landlord direct to the appropriate taxing authority, all taxes and assessments
which have been or may be levied, assessed, or payable to any lawful authority,
for each calendar year during the term hereof, against the land, buildings, and
improvements presently and/or at any time during the term of this Lease
comprising the Premises and the rentals payable by tenants in the Premises to
Landlord (hereinafter referred to as the "Taxes"). Taxes shall be deemed levied
or assessed with respect to the calendar year in which such taxes initially
constitute a lien against the Premises. However, the taxes described in the next
sentence shall be accrued ratably during the calendar year. Any costs, expenses,
and attorneys' fees incurred by Landlord for reduction in the assessed valuation
of the Premises and any protest or contest of real estate taxes and/or
assessments shall be included within the term "Taxes". Notwithstanding anything
herein contained to the contrary, Tenant shall not have the right to contest the
Taxes in any manner whatsoever.
D. Delivery of Possession
The Premises shall be deemed as ready for possession upon the commencement of
the lease. It is agreed that by occupying the Premises as a tenant, Tenant
formally accepts the same, in such AS IS condition, and acknowledges that the
Premises are in the condition called for hereunder. Landlord hereby reserves the
right at any time, and from time to time, to make additions to the Premises, to
sell part of the Premises, and to purchase (sell) any land adjacent to the
Premises and add (subtract) such land to the Premises, however any change in
ownership shall not nullify the lease.
E. Conduct of Business by Tenant.
(1) Use of Premises. Tenant shall use and occupy the Premises during the
continuance of this Lease solely for the Permitted Use set forth in the Basic
Lease Provisions, and for no other purpose or purposes without the prior written
consent of Landlord. If any governmental license or permit shall be required for
the proper and lawful conduct of Tenant's business or other activity carried on
in the Premises or if a failure to procure
such a license or permit might or would, in any way, affect Landlord or the
Premises, then Tenant, at Tenant's expense, shall procure and maintain such
license or permit. Tenant shall promptly comply with all laws and ordinances and
lawful orders and regulations affecting the Premises and the cleanliness,
safety, occupancy, and use of same. Tenant agrees that it will conduct its
business in the Premises in a lawful manner and in good faith. Tenant shall not
permit noise or odors in the Premises and upon Notice from Landlord, Tenant
shall immediately cease and desist from causing such noise or odor, and failing
of which Landlord may deem the same a material breach of the Lease. Tenant shall
not cause or permit the use, generation, storage, or disposal in, on, or about
the Leased Premises or the Premises of any substances, materials, or wastes
subject to regulation under any Federal, state, or local laws from time to time
in effect concerning hazardous, toxic, or radioactive materials, unless Tenant
shall have received Landlord's prior consent.
(2) Care of Premises. Tenant shall keep the Premises (including the service
areas adjacent to the Premises, windows, and signs) orderly, neat, safe, and
clean and free from rubbish and dirt at all times and shall store all garbage
within the Premises and arrange for the regular pick up of such garbage at
Tenant's expense.
F. Alterations; Tenant Alterations.
Tenant shall not make or cause to be made any alterations, additions, or
improvements to the Leased Premises, or install or cause to be installed any
exterior signs, floor covering, interior or exterior lighting, plumbing
fixtures, shades, canopies, or awnings or make any changes to the store front,
mechanical, electrical, or sprinkler systems without the prior approval of
Landlord, unless such alterations, additions, or improvements increase the value
of the Premises and comply with all applicable contracts, laws, and regulations.
Tenant shall in any event be responsible for repairing any damage caused to the
Premises by virtue of any unauthorized alteration, addition, or improvement
installed by or on behalf of Tenant. All alterations, decorations, additions,
and improvements made by Tenant shall be deemed to have attached to the
leasehold and to have become the property of Landlord upon such attachment, and
upon expiration of this Lease, Tenant shall not remove any of such alterations,
decorations, additions, and improvements, except trade fixtures installed by
Tenant may be removed if all rents due herein are paid in full and Tenant is not
otherwise in default hereunder. Notwithstanding the preceding Section, Landlord
may designate by Notice to Tenant those alterations and additions which shall be
removed by Tenant at the expiration or termination of this Lease and Tenant
shall promptly remove the same and repair any damage to the Leased Premises
caused by such removal.
G. Signs.
Tenant agrees not to use any advertising media that shall be deemed
objectionable to Landlord, such as loudspeakers, phonographs, or radio
broadcasts in a manner to be heard outside the Premises. All signage shall be
professionally prepared. Tenant further agrees
to maintain any such sign, awning, canopy, decoration, lettering, advertising
matter, or other thing, as may be approved, in good condition and repair at all
times.
H. Maintenance of Leased Premises.
Landlord shall not be called upon to make any repairs. Landlord shall not be
called upon to make any other improvements or repairs of any kind upon Premises
and appurtenances, except as may be required under the Sections "Destruction of
Premises" or "Eminent Domain". Tenant shall keep and maintain in good order,
condition, and repair (including replacement of parts and equipment if
necessary, and including the foundation, exterior walls, and roof of the
building, if same are owned by Landlord) the Premises and every part thereof and
any and all appurtenances thereto wherever located, including, but without
limitation, the exterior and interior portion of all doors, door checks,
windows, plate glass, store front, all plumbing and sewage facilities within the
Premises, including free flow up to the main sewer line, grease traps, hair
traps, fixtures, heating and air conditioning and electrical systems (whether or
not located in the Premises), sprinkler system, walls, floors, and ceilings, and
all other work performed by Tenant. Tenant shall keep and maintain the Premises
in a clean, sanitary, and safe condition in accordance with the laws of the
State and in accordance with all directions, rules, and regulations of the
health officer, fire marshal, building inspector, or other proper officials of
the governmental agencies having jurisdiction at the sole cost and expense of
Tenant, and Tenant shall comply with all requirements of law, ordinance, and
otherwise, affecting the Premises. If Tenant refuses or neglects to commence
and/or complete the repairs required by the provisions of this Section promptly
and adequately, Landlord may, but shall not be required to do so, make and
complete said repairs, and Tenant shall pay the cost thereof to Landlord upon
demand, as additional rental. At the time of the expiration of the tenancy
created herein, Tenant shall surrender the Premises, including all systems
covering the same in good condition, reasonable wear and tear, loss by fire or
other unavoidable casualty, excepted. Tenant shall keep the Premises and all
other parts of the Premises free from any and all liens arising out of any work
performed, materials furnished, or obligations incurred by or for Tenant, and
agrees to bond against or discharge any mechanic's or materialmen's lien within
Ten (10) days. Tenant shall reimburse Landlord for any and all costs and
expenses which may be incurred by Landlord by reason of the filing of any such
liens and/or the removal of same, such reimbursement to be made within Ten (10)
days after receipt by Tenant from Landlord of a statement setting forth the
amount of such costs and expenses. The failure of Tenant to pay any such amount
to Landlord within said Ten (10) day period shall carry with it the same
consequences as failure to pay any installment of rental. Tenant, at its own
expense, shall install and maintain fire extinguishers and other fire protection
devices as may be required from time to time by any agency having jurisdiction
thereof and the insurance underwriters insuring the building in which the Leased
Premises are located. Tenant further agrees to comply with any and all
requirements of the insurance underwriters insuring the Leased Premises.
I. Insurance.
Tenant shall, from the date Tenant takes possession of the Leased Premises until
the end of the term hereof, obtain and maintain policies of broad form
comprehensive or commercial general liability insurance, including products and
completed operations insurance, providing coverage for the operation of its
business, including coverage for the Leased Premises, with policy limits of not
less than $1,000,000 per occurrence and $1,000,000 aggregate, exclusive of
defense costs, unless Landlord agrees to a lesser amount. All policies
maintained pursuant to this subparagraph shall name Landlord (and the principal
owners, shareholders, officers, and partners of Landlord as Landlord shall give
Tenant Notice) as an additional named insured. In the event any policy or
policies of insurance which Tenant is required to maintain pursuant to this
Section shall be written on a "claims made" insurance form, each such policy
shall have a "retroactive date" that is not later than the Commencement Date of
this Lease. Furthermore, if any such policy is written on a claims made basis,
Tenant's obligation to provide insurance pursuant hereto shall be extended for
an additional period equal to the statute of limitations for bringing such
claims in the State on the last day of the term of this Lease plus one year.
Tenant shall, during the entire term hereof, insure the real property located
within the Premises, including the Premises and all appurtenances thereto
against those risks of loss insured against by so-called "all risk" property
insurance for the full replacement value thereof (with reasonable deductibles),
such insurance coverage to include the improvements provided by Landlord and
Tenant. Tenant shall pay to Landlord, or the insurance carrier directly, within
Fifteen (15) days after the receipt of a statement therefor, the cost of the
premiums for all such insurance. Tenant shall carry, at its expense, insurance
insuring all of Tenant's property located at the Premises, including, without
limitation, Tenant's merchandise, trade fixtures, furnishings, operating
equipment and personal property, such as signs, wall coverings, carpeting and
drapes located on or within the Premises, and any other asset or item associated
with Tenant's business in an amount equal to the actual replacement cost thereof
and to furnish Landlord with a certificate evidencing such coverage. All
policies obtained by Tenant shall be endorsed to provide that they shall neither
be canceled for any reason, nor changed in any material way adverse to Landlord,
except on Thirty (30) days prior Notice to Landlord.
J. Covenant To Hold Harmless.
Tenant shall indemnify and defend Landlord and each of the partners,
shareholders, principals, and beneficiaries (as the case may be) of Landlord and
save it and them harmless from and against any and all claims, actions, damages,
liabilities, and expenses of any kind or nature resulting in loss of life;
personal, bodily, or advertising injury; and/or damage to property arising from
or out of any occurrence in, upon, or at the Premises, regardless of who asserts
such claim. In case Landlord shall be made a party to any litigation commenced
by or against Tenant, then Tenant shall protect and hold Landlord harmless and
shall pay all costs, expenses, and reasonable attorneys' fees incurred or paid
by Landlord in connection with such litigation.
k. Waiver of Subrogation.
Landlord and Tenant hereby release each other and their respective agents and
employees from any and all liability to each other or anyone claiming through or
under them by way of subrogation or otherwise for any loss or damage to property
caused by or resulting from risks insured against (or which would have been
insured against had that party carried all insurance required by this Section)
under any insurance policy covering loss or damage to the Premises or any part
thereof.
L. Subordination.
This Lease and Tenant's rights under this Lease are subject and subordinate to
any ground or underlying lease, mortgage, indenture, deed of trust, or other
lien encumbrance, together with any renewals, extensions, modifications,
consolidations, and replacements of such lien encumbrance, now or after the
Lease date, affecting or placed, charged, or enforced against the land or all or
any portion of the shopping center or any interest of landlord in them or
Landlord's interest in this Lease and the leasehold estate created by this
Lease. This provision will be self-operative and no further instrument of
subordination will be required in order to effect it. Nevertheless, Tenant shall
execute, acknowledge, and deliver to Landlord, at any time and from time to
time, upon demand by landlord, such documents as may be requested by Landlord,
any ground or underlying lessor, or any mortgagee, to confirm or effect any such
subordination. If Tenant fails or refuses to execute, acknowledge, and deliver
any such document within Twenty (20) days after written demand, Landlord, its
successors, and assigns will be entitled to execute, acknowledge, and deliver
any and all such documents for and on behalf of Tenant as Attorney-in-Fact for
tenant. Tenant by this Section constitutes and irrevocably appoints Landlord,
its successors, and assigns as tenant's Attorney-in-Fact to execute,
acknowledge, and deliver any and all documents described in this Section for and
on behalf of Tenant, as provided in this Section.
M. Assignment and Subletting.
Tenant agrees not to assign or in any manner transfer this Lease or any estate
or interest therein without the prior consent of Landlord, and not to sublet the
Leased Premises or any part or parts thereof or allow anyone to come in with,
through, or under it without like consent. Consent by Landlord shall not be
unreasonably withheld.
N. Waste and Nuisance.
Tenant shall not commit or suffer to be committed any waste upon the Premises or
any nuisance or other act or thing which may disturb the quiet enjoyment of any
other tenant in the building in which the Leased Premises may be located, or in
the Premises. Tenant shall not use or permit to be used any medium that might
constitute a nuisance, such as loudspeakers, sound amplifiers, phonographs,
radios, televisions, or any other sound-producing device which will carry sound
outside the Leased Premises.
O. Destruction of Leased Premises.
In the event the Premises shall be partially or totally destroyed as the result
of a peril insured against by the insurance policies carried by Landlord and
such damage renders the Premises partially or totally untenantable, Landlord
shall repair the Premises to the lesser of (i) with respect to the Premises, the
condition of the Premises inclusive of Landlord improvements, but exclusive of
Tenant improvements, as of lease commencement adjusted for ordinary wear and
tear; or (ii) the extent of the insurance proceeds actually received by Landlord
allocable to the Premises plus insurance proceeds received by Tenant for the
risks set forth herein, which Tenant shall promptly pay over to Landlord to the
extent of the costs incurred by Landlord in such repairs and reconstruction in
excess of the insurance proceeds, if any, received directly by Landlord.
Tenant's insurance carriers shall have not recourse against the Landlord for
reimbursement. The Fixed Minimum Rental and other charges shall be abated in
proportion to the amount of the Leased Premises rendered untenantable until so
repaired. If: (i) more than Twenty percent (20%) of the floor area of the
building in which the Leased Premises are located shall be damaged or destroyed
by fire or other insured casualty; or (ii) if there is less than Three (3) years
of the term of this Lease remaining; (iii) or if in Landlord's opinion the
Premises is so extensively or substantially damaged so that reconstruction is
impracticable; then Landlord may either elect that the Premises may be repaired
or rebuilt or, at its sole option, terminate this Lease by giving Notice to
Tenant of its election to so terminate, such Notice to be given within Ninety
(90) days after the occurrence of such damage or destruction, and Tenant's
obligations to pay rent shall cease as of such date. If Landlord is required or
elects to repair or rebuild the Leased Premises as herein provided, Tenant shall
repair or replace its merchandise, trade fixtures, furnishings, and equipment in
a manner and to at least a condition equal to that prior to its damage or
destruction. Tenant shall diligently undertake such repair or replacement in
cooperation with Landlord and shall complete such replacement or repair no later
than Thirty (30) days after Landlord notifies Tenant that the Premises are ready
for occupancy and all rent and other charges shall resume in full as of such
date. Landlord and Tenant shall agree upon an equitable reduction in Rent in the
event this Lease is not terminated and the Premises or the Leased Premises are
damaged or destroyed to such an extent that it materially and adversely affects
Tenant's business. Such abatement shall in no event exceed the proportion of the
square footage of the Premises which is not tenantable.
P. Eminent Domain.
If the whole of the Premises hereby leased shall be taken by any public
authority under the power of eminent domain, or by deed in lieu thereof, then
the term of this Lease shall cease as of the day possession shall be taken by
such public authority and the Rent and other charges due hereunder, shall be
paid up to that day with a proportionate refund by Landlord of such rent as may
have been paid in advance for a period subsequent to the date of the taking. If
less than the whole of the Premises shall be taken under eminent domain,
Landlord shall have the right either to terminate this Lease and declare same
void, or require Tenant to continue in the possession of the remainder of the
Premises if
such can reasonably be accomplished. Landlord shall notify Tenant in writing
within Twenty (20) days after such taking of Landlord's intention. If the Tenant
is to remain in possession, all of the terms herein provided shall continue in
effect, except that the Fixed Minimum Annual Rental shall be reduced in
proportion to the amount of the Premises, if any, taken. If this Lease
continues, Landlord shall, at its expense, make all necessary repairs or
alterations to the basic building, as such existed at the Commencement Date,
subject to ordinary wear and tear since said date, so as to constitute the
remaining Leased Premises a complete architectural unit. However, in no event
shall Landlord bear the cost of Tenant's merchandise, trade fixtures,
furnishings, or operating equipment and personal property, such as signs, wall
coverings, carpeting, and drapes. All damages awarded for such taking under the
power of eminent domain, whether for the whole or a part of the Leased Premises,
shall belong to and be the property of Landlord whether such damages shall be
awarded as compensation for diminution in value to the leasehold or to the fee
of the Premises. The Tenant may pursue its own claims for damages with the
appropriate government authority so long as same does not interfere with, or in
any manner diminish, the award of Landlord.
Q. Default of the Tenant.
(1) Definition of Event of Default. Each of the following shall be deemed an
event of default: (i) Tenant's failure to make payment of rent or other charges
as provided in this Lease; (ii) Tenant's failure to perform any of the
covenants, terms, conditions, or provisions of this Lease; (iii) If a petition
is filed by or against Tenant for relief under the bankruptcy laws, or Tenant
shall make an assignment for the benefit of creditors, or if a receiver of any
property of the Tenant be appointed in any action, suit, or proceeding by or
against Tenant, or if Tenant shall admit that it is insolvent, or it is
generally not paying its debts as such debts become due, or if the interest of
Tenant in the premises shall be sold under execution or other legal process, or
if Tenant shall abandon the premises; (iv) Tenant vacates or abandons the
premises; (v) This Lease or the Premises or any part of the Premises are taken
upon execution or by other process of law directed against Tenant, or are taken
upon or subject to any attachment at the instance of any creditor or claimant
against Tenant, and the attachment is not discharged or disposed of within
Fifteen (15) days after its levy; (vi) Tenant is dissolved; (vii) Tenant fails
to take possession of the Premises on the Commencement Date as required
hereunder. Notwithstanding anything herein to the contrary, Tenant shall not be
entitled to more than One (1) notice for monetary defaults during any Twelve
(12) month period, and if after such notice any rent is not paid when due, an
event of default will be considered to have occurred without further notice.
Upon the occurrence of an event of default, Landlord shall have the right to
terminate the Lease and shall be entitled to possession of the Premises.
Landlord may make its election to terminate known to Tenant by delivery of a
notice of termination. Such termination shall be immediately effective and
Landlord shall be entitled to forthwith commence an action in summary
proceedings to recover possession of the Premises, but such termination shall
not terminate Tenant's liabilities hereunder. Tenant waives all notice in
connection with such termination, including by way of illustration, but not
limitation, notice of intent to terminate, demand for possession or payment, and
notice of re-entry. No receipt of money by the Landlord from the Tenant after
the
termination of this Lease shall reinstate, continue, or extend the term, nor
affect or waive any notice given by the Landlord to the Tenant prior to such
receipt of money.
(2) Recovery of Damages Following Termination. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, including the cost of recovering the Premises, reasonable attorneys'
fees, and damages equal to lost rent, all of which amounts shall be immediately
due and payable from Tenant to Landlord. Additionally, if Landlord has incurred
any costs or expenditures to fit the premises to the needs of Tenant, Tenant
agrees to reimburse Landlord such costs and expenditures, including for purposes
of illustration but not by way of limitation, expenditures for interior
partitions, floor coverings, special paint, plaster, or any counter, cabinet,
shelving, paneling, or other special work done at the request of Tenant and not
previously paid for by Tenant.
(3) Right to Re-Enter. If the event of default is for the nonpayment of rent,
Landlord may, as an alternative to terminating the Lease, serve a Notice for
possession or payment. Unless the rent, additional rent, and any other amounts
due under this Lease are paid in accordance with the demand for possession or
payment, Landlord shall be entitled to possession of the Premises and Tenant
shall have no further right to possession under the Lease, but Tenant shall not
be relieved of any of its liability hereunder. Tenant shall remain liable to
Landlord for the payment of all rent and other charges which Tenant has agreed
to pay under this Lease throughout the remainder of its term. Should Landlord
elect to re-enter, as herein provided, it may from time to time, without
terminating this Lease, make such alterations and repairs as may be necessary in
order to relet the Premises, and relet said Premises or any part thereof for
such term or terms (which may be for a term extending beyond the term of this
Lease) and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable. Notwithstanding anything
herein to the contrary, Landlord may, without demand or notice, reenter and take
possession of the premises or any part of the premises, repossess the same,
expel tenant and those claiming through or under tenant, and remove the effects
of both or either, using such force for such purposes as may be necessary,
without being liable for prosecution, without being deemed guilty of any manner
of trespass, and without prejudice to any remedies for arrears of amounts
payable under this Lease or as a result of any preceding breach of covenants or
conditions.
(4) Other Remedies. The Landlord's rights, remedies, and benefits provided by
this Lease shall be cumulative, and shall not be exclusive of any other rights,
remedies and benefits allowed by law.
(5) Estoppel. The parties agree that they shall rely solely upon the terms of
this Lease to govern their relationship. They further agree that reliance upon
any representation, act, or omission outside the terms of this Lease shall be
deemed unreasonable, and shall not establish any rights or obligations on the
part of either party.
(6) Independent Covenant. Notwithstanding anything to the contrary, Tenant
acknowledges and agrees that its obligation to pay rent under this Lease is an
independent covenant, and that such obligation to pay rent is not subject to
set-off or recoupment in connection with any action for summary proceedings to
recover possession of the Leased Premises.
R. Bankruptcy or Insolvency.
In the event that a trustee is appointed for Tenant or by Tenant as
Debtor-in-Possession, Tenant is liquidated or files a subsequent petition for
reorganization or adjustment of debts under the Bankruptcy Code, Tenant be
adjudicated a bankrupt, insolvent, or placed in receivership, or should any
proceedings be instituted by or against the Tenant for bankruptcy, insolvency,
receivership, agreement of composition, or assignment for the benefit of
creditors, or if this Lease or the estate of the Tenant hereunder shall pass to
another by virtue of any court proceedings, writ of execution, levy, sale or by
operation of law, then, and in any of such events, Landlord may, at its option,
terminate this Lease and all rights of Tenant hereunder, by giving Five (5) days
Notice of its election to so terminate to Tenant, or to any trustee, receiver,
assignee, or other person in charge of or acting as custodian of the assets or
property of the Tenant. Upon the giving of such Notice, this Lease and the term
hereof shall end on the date fixed in such Notice, or if no such date is fixed,
Five (5) days following the proper dispatch of such Notice, and the Landlord
shall have the right to remove all persons, goods, fixtures, and chattels from
the Premises by force or otherwise, without liability for damages, and all the
other rights permitted under this Lease in the event of a default.
S. Access By Landlord
Landlord or Landlord's agent shall have the right to enter the Premises at all
reasonable times to examine same, and to show them to prospective purchasers or
mortgagees, and to make such repairs, alterations, improvements, or additions as
Landlord may deem necessary or desirable.
T. Successors.
All rights and liabilities herein given to, or imposed upon, the respective
parties hereto shall extend to and bind the several respective heirs, executors,
administrators, successors, and assigns of the said parties; and if there shall
be more than one Tenant, they shall all be bound jointly and severally by the
terms, covenants, and agreements herein. No rights, however, shall inure to the
benefit of any assignee of Tenant unless the assignment to such assignee has
been approved by Landlord in writing as required hereunder.
U. Quiet Enjoyment.
Upon payment by Tenant of the rents herein provided, and upon the observance and
performance of all the covenants, terms, and conditions on Tenant's part to be
observed
and performed, Tenant shall peaceably and quietly hold and enjoy the Premises
for the term of this Lease.
L. Miscellaneous.
(1) Waiver. One or more waivers of any covenant, term, condition, or provision
of the Lease by either party shall not be construed as a waiver of a subsequent
breach of the same covenant, term, condition, or provision, and the consent or
approval by Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed a waiver of Landlord's consent or approval to or of
any subsequent similar act by Tenant. No breach of a covenant, term, condition,
or provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver (i) is in writing signed by Landlord, (ii) identifies the
breach, and (iii) expressly states that it is a waiver of the identified breach.
M. Entire Agreement.
This Lease and the Exhibit attached hereto and forming a part hereof, set forth
all the covenants, promises, agreements, conditions, and understandings between
Landlord and Tenant concerning the Premises and there are no covenants,
promises, agreements, conditions, or understandings, either oral or written,
between them other than are herein set forth. No alteration, amendment, change,
or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by the party to be charged.
(1) No Partnership. Nothing contained herein shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto.
(2) Construction. Whenever herein the singular number is used, the same shall
include the plural, and the masculine gender shall include the feminine and
neuter genders. The captions, section numbers, article numbers, and index
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe, or describe the scope or intent of such sections or
articles of this Lease nor in any way affect this Lease.
(3) Notice. Any notice, demand, request, consent, approval, or other instrument
which may be or is required to be given under this Lease shall be sent by
overnight courier or United States certified mail return receipt requested,
postage prepaid, or via facsimile, and shall be addressed (a) if to Landlord, to
the addresses set forth in the Basic Lease Provisions or at such other address
as Landlord may designate by written notice, and (b) if to Tenant, at the
address set forth in the Basic Lease Provisions, or at such other address as
Tenant shall designate by written notice ("Notice").
(4) Brokers' Commissions. Each of the parties represents and warrants that there
are no claims for brokerage commissions or finder's fees in connection with the
execution of this Lease, except as set forth in the Basic Lease Provisions, and
each of the parties agrees to
indemnify the other against, and hold it harmless from, all liabilities arising
from any such claim including, without limitation, the cost of counsel fees in
connection therewith.
(5) Recording. Tenant shall not record this Lease without the consent of
Landlord, which may be withheld for any reason whatsoever, in Landlord's
absolute discretion.
(6) Governing Law. This Lease shall be governed by, and construed in accordance
with, the laws of the State of Alabama.
(7) Partial Invalidity. If any provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby and
each provision of the Lease shall be valid and enforceable to the fullest extent
permitted by law, and the remaining provisions of this Lease shall be
interpreted so as to nearly as possible conform to the intent of the parties as
indicated in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of the day and
year first above written.
LANDLORD: WITNESSES:
*_____________________________________Date:
*_____________________________________Date:
TENANT:
* XRG Logistics, Inc
By XRG, Inc its parent company
By: *___________________Date:
Xxxx Xxxxxxxx, Chief Operating Officer
