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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Nevada 000-25753 87-0449667 --------------------------- -------------- ------------ (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On March 21, 2005 Power2Ship, through our indirect subsidiary Commodity Express Transportation, Inc., a Delaware corporation ("CET-DEL"), purchased certain assets of Commodity Express Transportation, Inc., a South Carolina based corporation engaged in the business of motor carriage ("CET-SC").
Under the terms of the Mutual Agreement we purchased certain assets of Commodity Express Transportation including customer lists, back-shop equipment, office equipment, telecommunications equipment, certain contracts, five vehicle/trucks, for an purchase price of $100,000 in cash and the assumption of liabilities in the amount of $193,655, of which $100,000 is described in greater detail below. At the closing we also assumed certain leases related to the operation of the seller's business, including tractor and trailer leases, owner/operator leases and a warehouse lease. We also entered into leases with the seller to lease certain commercial property and certain trailers described in greater detail below. At closing we replaced certain deposits and letter of credit previously made or issued on the seller's behalf with third parties in the aggregate amount of approximately $145,000 related to the operation of the seller's business, and we agreed to replace additional letters of credit totaling approximately $20,000 on or before June 10, 2005. The Mutual Agreement contains customary representations and warranties and cross-indemnification provisions.
At closing we also entered into certain additional agreements, including:
Pursuant to our loan and security agreement dated December 2, 2004 related to our $1,000,000 revolving line of credit with Mercantile Capital, L.P., we may have been required to obtain the written consent of Mercantile prior to purchasing the assets of CET-SC. As of the date of this current report, Mercantile has expressed in writing that it does not object to the asset purchase but has reserved its rights and remedies until it has had an opportunity to fully review the transaction.
Item 3.02. Unregistered Sales of Equity Securities
In March 2005 we issued 370,370 shares of our common stock to an accredited investor as satisfaction of the fee due under the Fee Assumption Agreement described above. These shares, valued at approximately $100,000, were issued in a private transaction exempt from registration under the Securities Act of 1933 in reliance on Section 4(2) of that act. The certificate evidencing the securities that were issued contained a legend restricting their transferability absent registration under the Securities Act or the availability of an applicable exemption therefrom.
Item 9.01. Financial Statements and Exhibits
(a) Financial Statements of Businesses Acquired.
Financial statements of Commodity Transport Associates as may be required for the periods specified in Rule 3-05(b) of Regulation S-X will be filed under an amendment to this Report within the prescribed time frame.
(b) Pro Forma Financial Information.
Pro formal financial information which may be required by Articles 11 of Regulation S-X will be filed under amendment to this Report within the prescribed time frame.
(c) Exhibits. 10.28 Mutual Agreement dated as of March 21, 2005 10.29 Escrow Agreement dated as of March 21, 2005 10.30 Equipment Lease Agreement dated March 21, 2005 10.31 Commercial Lease dated March 21, 2005. 10.32 Commodity Express Transportation, Inc. - TPS Logistics, Inc. Agreement dated March 21, 2005 10.33 Consulting Agreement dated March 21, 2005 with Stokes Logistics Consulting, LLC 10.34 Employment Agreement dated March 21, 2005 with W.A. Stokes 10.35 Fee Assumption Agreement
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: March 25, 2005 By: /s/ Richard Hersh ----------------- Richard Hersh, Chief Executive Officer
This MUTUAL AGREEMENT dated as of March 21, 2005 ("Agreement") is entered into by and between POWER2SHIP, INC., a Nevada corporation ("P2S"), COMMODITY EXPRESS TRANSPORTATION, INC., a Delaware corporation and indirect wholly owned subsidiary of P2S ("CET-DEL"), POWER2SHIP HOLDINGS, INC., a Florida corporation and wholly owned subsidiary of P2S ("P2S Holdings"), COMMODITY EXPRESS TRANSPORTATION, INC., a South Carolina corporation ("CET-SC"), STOKES LOGISTICS CONSULTING, LLC, a South Carolina limited liability company ("SLC"), TPS LOGISTICS, INC., a South Carolina corporation ("TPS") and W. A. STOKES, an individual resident in the State of South Carolina ("Stokes"), together the parties ("Parties").
WHEREAS, CET-SC engages in the business of motor carriage (the "Business");
WHEREAS, CET-SC, in connection with its operation of the Business, owns and lawfully uses certain assets (as more fully described below and referred to hereafter as the "Assets"), maintains certain tractor leases, owns and operates a freight terminal in Columbia, South Carolina, owns and maintains freight trailers, and owns and maintains various leases that contribute to the successful operation of the Business;
WHEREAS, Stokes is a principal shareholder in CET-SC and the principal person in control of the operations of the CET-SC and possesses over thirty years experience in the Business;
WHEREAS, SLC and TPS are businesses maintained and operated by Stokes and his business associates for the purpose of acquiring and servicing freight hauling clients.
WHEREAS, CET-SC, upon the terms and conditions contained in this Agreement, desires to convey, sell and assign to CET-DEL all of CET-SC's right, title and interest in and to the Assets, desires to lease to CET-DEL its freight terminal, desires to lease to CET-DEL certain trailers, desires to allow CET-DEL to assume its tractor leases and desires to complete other associated transactions with CET-DEL, as more fully described below; and
WHEREAS, CET-DEL is a wholly owned subsidiary of P2S Holdings, and P2S Holdings is a wholly owned subsidiary of P2S; and
WHEREAS, CET-DEL, upon the terms and conditions contained in this Agreement, desires to complete the transactions described above, desires to employ Stokes to assist in managing the Business, and desires to remunerate Stokes companies for services associated with maintaining certain valuable business contracts; and
WHEREAS, P2S desires to financially support commitments made by CET-DEL in relation to the transactions contemplated by this Agreement.
NOW THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
(a) the sum of $100,000 payable in cash; and
(b) the assumption of liability identified on Schedule 1.2 in the amount of $100,000.
(a) All CET-SC tractor leases identified on Schedule 2(a);
(b) All CET-SC trailer leases identified on Schedule 2(b);
(c) Amcor warehouse lease, to be prorated as of the Closing Date; and
(d) All CET-SC owner/operator leases identified on Schedule 2(d).
(a) CET-SC shall keep the existing Letter of Credit in place with TSL Employee Leasing until it expires on 6/10/2005 and CET-DEL shall replace this Letter of Credit on or before 6/10/2005; and
(b) CET-DEL shall replace the current Letter of Credit with Sirius Insurance Company on the Closing Date, and CET-SC agrees that any additional premiums assessed against CET-DEL based on the year end audit (year ending 6/01/05) will be paid by CET-SC.
CET-SC hereby represents and warrants to CET-DEL and P2S that it has no reason to believe that the CET-SC 2003 Financial Statements cannot be audited and prepared in accordance with GAAP and SEC requirements, including the instructions to Form 8-K. CET-SC further represents and warrants that it believes that upon final preparation of its 2004 financial reports by a certified public accountant, such records will be auditable, and capable of being prepared in accordance with GAAP and SEC requirements, including the instructions to Form 8-K.
(a) All insurance policies covering the Assets and the Business:
(i) are valid, outstanding, and enforceable;
(ii) to the best knowledge of CET-SC, are issued by an insurer that is financially sound and reputable;
(iii) taken together, provide adequate insurance coverage for the Assets for all risks normally insured against by a person carrying on the type of business conducted by CET-SC;
(iv) are sufficient for compliance with all legal requirements and material agreements involving the Assets; and
(v) do not provide for any retrospective premium adjustment or other experienced-based liability on the part of CET-SC.
(b) CET-SC has paid all premiums due, and has otherwise performed all of its obligations, under each policy to which it is a party or that provides coverage to it.
(c) CET-SC has given notice to the insurer of all claims that may be insured thereby.
(a) CET-SC is, and at all times has been, in material compliance with each law, rule and/or regulation ("Legal Requirement") that is or was applicable to it or to the ownership or use of any of its assets and the Assets being purchased hereby.
(b) No event has occurred or circumstance exists that (with or without notice or lapse of time) (i) may constitute or result in a material violation by CET-SC of, or a failure on the part of CET-SC to comply with, any Legal Requirement, or (ii) may give rise to any obligation on the part of CET-SC to undertake, or to bear all or any portion of the cost of, any remedial action of any nature that would encumber the Assets.
Notwithstanding the foregoing, neither the South Carolina Department of Transportation nor the federal Department of Transportation has conducted a CET-SC safety compliance review since 1998, at which time CET-SC received a satisfactory safety rating. CET-SC has no reason to believe that a safety audit performed by federal or state authorities would result in anything other than a satisfactory safety rating; though such lack of knowledge may not prevent CET-SC from receiving an adverse safety rating.
(a) CET-SC has complied and is in compliance with all federal and state environmental laws, rules and regulations ("Environmental Laws") applicable to CET-SC, the Business, Assets and the real property where the Terminal (as defined herein) and related facilities are located.
(b) Without limiting the generality of the foregoing, CET-SC has obtained and complied with, and is in compliance with, all permits, licenses and other authorizations that are required pursuant to Environmental Laws for the occupation of its facilities, the operation of its Business and the Terminal, and the ownership of the Assets.
(c) CET-SC has not received any written or oral notice, report or other information regarding any actual or alleged violation of Environmental Laws, or any liabilities or potential liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations, relating to its facilities, the Terminal, the Business or the Assets arising under any Environmental Law.
(d) None of the following exists at any property or facility, including the Terminal, owned or operated by CET-SC: (i) underground storage tanks, (ii) asbestos-containing material in any form or condition, (iii) materials or equipment containing polychlorinated biphenyls, or (iv) landfills, surface impoundments, or disposal areas.
(e) CET-SC has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any substance, including without limitation any hazardous substance, or owned or operated any property or facility, including the Terminal (and no such property or facility is contaminated by any such substance) in a manner that has given or would give rise to liabilities, including any liability for response costs, corrective action costs, personal injury, property damage, natural resources damages or attorney fees, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), the Solid Waste Disposal Act, as amended ("SWDA") or any other Environmental Law.
(f) No facts, events or conditions relating to the past or present facilities, properties or operations of CET-SC, including the Terminal, will prevent hinder or limit continued compliance with CERCLA, SWDA or any other Environmental Law, give rise to any investigatory, remedial or corrective obligations pursuant to any Environmental Law, or give rise to any other liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) pursuant to any Environmental Law, including without limitation any relating to onsite or offsite releases or threatened releases of hazardous materials, substances or wastes, personal injury, property damage or natural resources damage.
(a) a duly executed bill of sale, dated the Closing Date, transferring to CET-DEL all of CET-SC's right, title and interest in and to the Assets together with possession of the Assets;
(b) a duly executed assignment and assumption, transferring to CET-DEL all of CET-SC's right, title and interest in and to the contracts, agreements, contract rights, leases, specifically including those identified in Section 2 hereof, and intellectual property included in the Assets, accompanied by any third party consents contemplated by Section 10.4;
(c) a copy of resolutions of the board of directors and all shareholders of CET-SC, certified by an executive officer of CET-SC, authorizing the execution, delivery and performance of this Agreement by CET-SC;
(d) duly executed Trailer Leases for the trailer leases identified on Schedule 3.1 and substantially in the form of Exhibit A hereto ;
(e) a duly executed Employment Agreement substantially in the form of Exhibit E hereto;
(f) a duly executed Commercial Lease substantially in the form of Exhibit B hereto;
(g) a duly executed Escrow Agreement substantially in the form of Exhibit F;
(h) payment of the funds held in escrow as identified on Schedule 9.2 and reflected on Exhibit G;
(i) a duly executed Closing Statement attached as Exhibit G;
(j) a duly executed Fee Assumption Agreement substantially in the form of Exhibit H; and
(k) such other certificates, documents and instruments as CET-DEL may have reasonably requested in connection with the transaction contemplated hereby.
(a) a duly executed assignment and assumption, transferring to CET-DEL all of CET-SC's right, title and interest in and to the contracts, agreements, contract rights, leases, specifically including those identified in Section 2 hereof, and intellectual property included in the Assets, accompanied by any third party consents contemplated by Section 11.4;
(b) a copy of resolutions of the board of directors of CET-DEL, P2S and P2S Holdings, each certified by an executive officer of each company authorizing the execution, delivery and performance of this Agreement by each company;
(c) payment satisfactory to CET-SC of the Purchase Price set per Section 1.3, as reflected on Exhibit G;
(d) duly executed Trailer Leases for the trailers identified on Schedule 3.1 and substantially in the form of Exhibit A hereto;
(e) a duly executed Commission Agreement to TPS substantially in the form of Exhibit D, pertaining to revenues derived by CET-DEL from Amcor for hauling freight to and from Amcor's Blythewood SC facility;
(f) a duly executed Employment Agreement to Stokes substantially in the form of Exhibit E hereto;
(g) a duly executed Commercial Lease substantially in the form of Exhibit B hereto;
(h) a duly executed Consulting Agreement to SLC substantially in the form of Exhibit C hereto;
(i) Letters of Credit and Deposits, identified on Schedule 9.3 and reflected on Exhibit G, supporting obligations to be assumed by CET-DEL;
(j) a duly executed Closing Statement attached as Exhibit G;
(k) a duly executed Fee Assumption Agreement substantially in the form of Exhibit H;
(l) a duly executed Escrow Agreement substantially in the form of Exhibit F; and
(m) such other certificates, documents and instruments as CET-SC may have reasonably requested in connection with the transaction contemplated hereby.
(a) a duly executed Consulting Agreement substantially in the form of Exhibit C hereto.
(a) a duly executed Commission Agreement substantially in the form of Exhibit D, pertaining to revenues derived by CET-DEL from Amcor for hauling freight to and from Amcor's Blythewood SC facility.
If to CET-SC, SLC, TPS or Stokes:
W. A Stokes
Commodity Express Transportation, Inc.
354 South Chimney Lane
Columbia, SC 29209
Telephone No.:(803) 695-9200
Telecopy No.: (803) 791-0148
If to CET-DEL, P2S Holdings or P2S, to:
Commodity Express Transportation, Inc.
c/o Power2Ship, Inc.
903 Clint Moore Road
Boca Raton, FL 33431
Attn: Richard Hersh, President
Telephone No.: (561) 998-7557
Telecopy No.: (561) 998-7821
COMMODITY EXPRESS TRANSPORTATION,
INC. - DEL
By: /s/ Richard Hersh ----------------------- Richard Hersh, Chief Executive Officer
By: /s/ Richard Hersh ----------------------- Richard Hersh, Chief Executive Officer
POWER2SHIP HOLDINGS, INC.
By: /s/ Richard Hersh ----------------------- Richard Hersh, Chief Executive Officer
COMMODITY EXPRESS TRANSPORTATION,
INC. - SC
By: /s/ W.A. Stokes ----------------------- W. A. Stokes, President
STOKES LOGISTICS CONSULTING, LLC
TPS LOGISTICS, INC.
W. A. STOKES
List of Schedules
Schedule 1.1 List all Assets, including equipment, accessories, contracts, purchase orders, customer lists, permits, etc. Schedule 1.2 List of Assumed Liabilities Schedule 2(a) All CET-SC tractor leases being assumed Schedule 2(b) All CET-SC trailer leases being assumed Schedule 2(d) All CET-SC owner/operator leases being assumed Schedule 3.1 The CET-SC trailers being leased to CET-DEL. Schedule 9.1 List of leased employees of CET-SC including their positions and salaries Schedule 9.2 Funds held in escrow and being transferred to CET-DEL Schedule 9.3 Letters of Credit/Deposits
CET-SC Disclosure Schedule
List of Exhibits
Exhibit A Trailer lease Exhibit B Commercial Lease Exhibit C Consulting Agreement Exhibit D Commission Agreement (Amcor/Blythewood) Exhibit E Employment Agreement Exhibit F Escrow Agreement Exhibit G Closing Statement Exhibit H Assumption Fee Agreement
1. Commission/liability to Chapman Associates in the amount of $100,000, as reflected on Exhibit H.
THIS ESCROW AGREEMENT ("Agreement") is entered into as of March 21, 2005 (the "Closing Date"), by and among: POWER2SHIP, INC., a Nevada corporation ("P2S"), COMMODITY EXPRESS TRANSPORTATION, INC., a Delaware corporation and indirect wholly owned subsidiary of P2S ("CET-DEL"), POWER2SHIP HOLDINGS, INC., a Florida corporation and wholly owned subsidiary of P2S ("P2S Holdings"), together the Companies ("Companies") AND COMMODITY EXPRESS TRANSPORTATION, INC., a South Carolina corporation ("CET-SC") AND KYLE MICHEL LAW FIRM, LLC, a South Carolina limited liability company ("Escrow Agent"), each individually a party ("Party") and all together the parties ("Parties").
A. The Companies and CET-SC are entering into a series of agreements on the Closing Date that will cause them to work closely together for the purpose of building the business of CET-DEL, which as of the day before the Closing Date is a corporation substantially without assets;
B. P2S Holdings is the record owner of all the shares of CET-DEL;
C. The Companies and CET-SC agree that the success of CET-SC and CET-DEL will be closely related following the Closing Date and further agree that the success of CET-DEL will be jeopardized if CET-DEL is not properly capitalized and managed for two years following the Closing Date ("Term");
D. The Companies and CET-SC also agree that any sale of the shares of CET-DEL would jeopardize the success of CET-DEL under the plans for building CET-DEL currently in place;
E. CET-SC desires to have an ability to assume control of CET-DEL in the event CET-DEL becomes under-capitalized and desires to prevent P2S Holdings from transferring shares in CET-DEL without its consent;
F. The Companies desire to address CET-SC's concerns by placing all the stock of CET-DEL in escrow during the Term and agreeing to notify prospective purchasers of this Agreement and its terms and conditions, and to also address CET-SC's concerns by giving CET-SC the ability to take control of CET-DEL in the event CET-DEL becomes under-capitalized during the Term; and
G. The Escrow Agent is willing to act as escrow agent on the terms and conditions set forth in this Agreement.
The Parties, intending to be legally bound, agree as follows:
SECTION 1. APPOINTMENT OF ESCROW AGENT
The Escrow Agent is hereby appointed escrow agent to hold and dispose of the escrowed shares in accordance with the terms and conditions set forth in this Agreement, and the Escrow Agent accepts such designation and agrees to hold and dispose of such escrowed shares in accordance with the provisions of this Agreement. The Companies and CET-SC agree to the appointment of Escrow Agent and to the terms and conditions of this Agreement pertaining to the Escrow Agent's compensation, liability and other matters.
SECTION 2. ESCROW SHARES
2.1 DEPOSIT OF SHARES INTO ESCROW. Within one business day of the Closing Date, P2S Holdings shall deposit with Escrow Agent stock certificates representing ownership of all shares of stock, common or otherwise, of CET-DEL ("Escrow Shares"). The Escrow Shares shall be held by the Escrow Agent in escrow in accordance with the provisions of this Agreement and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any Party hereto.
2.2 EXERCISING OWNERSHIP. During the Term, P2S Holdings shall remain the record owner of the shares and shall be entitled to exercise all power and rights attendant to such ownership except to the extent such power and rights are restricted by this Agreement.
2.3 SAFEHOLDING. The Escrow Agent shall provide for safe-keeping of the Escrow Shares consistent with legal and ethical standards for holding third party property.
SECTION 3. NOTICE OF THIS AGREEMENT
3.1 COMPANIES' NOTICE TO PURCHASERS. The Companies, together and individually, hereby agree to not undertake any effort to transfer ownership of the Escrow Shares during the Term without first notifying the prospective purchaser of this Agreement and the terms and conditions it places on the Parties and the Escrow Shares.
3.2 ESCROW SHARES LEGEND. The Companies agree to place a legend on the Escrow Shares notifying holders of this Agreement and the terms and conditions it places on the Parties and the Escrow Shares.
SECTION 4. DEFAULT
4.1 DEFINITION OF DEFAULT. The following events shall constitute default ("Default") in the context of this Agreement:
(a) The net worth of CET-DEL dropping below $400,000 anytime between March 21, 2005 and March 20, 2006, so long as in the month the net worth so drops the gross receipts received by CET-DEL from Amcor PET Packaging have not declined by more than fifteen percent (15%) when compared to gross receipts received by CET-SC from Amcor PET Packaging in the same month in the prior year;
(b) The net worth of CET-DEL dropping below $300,000 anytime between March 21, 2006 and March 20, 2007 so long as in the month the net worth so drops the gross receipts received by CET-DEL from Amcor PET Packaging have not declined by more than fifteen percent (15%) when compared to gross receipts it received from Amcor PET Packaging in the same month in the prior year;
(c) Possession by CET-DEL of outstanding invoices that are past due from, and pursuant to the terms of the agreements with, any of the following: CET-SC, Stokes Logistics Consulting, LLC, or TPS Logistics, Inc., unless the invoices relate to an agreement that has been breached other than by the Company.
4.2 NOTICE OF DEFAULT AND CURE. In the event of a Default, CET-SC shall notify P2S Holdings, CET-DEL and the Escrow Agent in writing that a default exists and provide a detailed description of the Default. The Companies, individually or together, or any group appointed by the Companies, will have 30 calendar days to cure the Default and notify CET-SC and the Escrow Agent in writing of the cure, providing an accompanying detail.
4.3 CONSEQUENCES OF DEFAULT. If the Default is not cured within 30 calendar days, CET-DEL will enter a period of Default ("Period of Default"). The Companies, individually and together, hereby agree and consent that during a Period of Default CET-SC shall have the power to assume control of CET-DEL, and that CET-SC shall be vested with the power of the President and CEO of CET-DEL and it shall have the consent of the Board of Directors of CET-DEL and P2S Holdings as sole shareholder of CET-DEL to manage the operations of CET-DEL in a manner that will most quickly and reasonably cure the Default. During a Period of Default the Companies shall refrain from taking corporate actions that would interfere with or disturb the exercise of power by CET-SC in its management of CET-DEL.
The Companies, individually and together, agree and consent that once a Period of Default has begun, CET-SC shall remain in control of CET-DEL as above-described until the Default has been cured for 30 consecutive calendar days.
4.4 DEFAULT AT CLOSE OF TERM. If CET-DEL is in a Period of Default at the end of the Term, the Companies, individually and together, hereby consent to an extension of the Term until the Default has been cured for 30 calendar days or until March 20, 2008 whichever is earlier.
SECTION 5. RETURN OF ESCROW SHARES
The Escrow Agent shall return the Escrow Shares to P2S Holdings at the end of the Term, including an extension of the Term as provided for in Section 4.4, above.
SECTION 6. EQUITABLE RELIEF
The Parties agree that it is impossible to determine the monetary damages that will accrue as a result of any breach of the provisions of this Agreement particularly because of the essence of time in addressing any such breach under the circumstances of this Agreement. Therefore, if any Party institutes any action or proceeding in equity to enforce any of the provisions of this Agreement, all other Parties hereby waive the claim or defense therein that such party has an adequate remedy at law, and such Party shall not urge in such equitable action or proceeding the claim or defense that such remedy at law exists.
SECTION 7. PAYMENT OF ESCROW AGENT
CET-SC shall pay the reasonable fees and expenses (including attorneys' fees) of the Escrow Agent for the services to be rendered by the Escrow Agent in accordance with the terms of this Agreement. The Escrow Agent will also be entitled to reimbursement for extraordinary expenses incurred in the performance of its duties hereunder. Escrow Agent shall submit an invoice for services to CET-SC on a monthly basis for reimbursement. Invoices are payable upon receipt.
SECTION 8. LIMITATION OF ESCROW AGENT'S LIABILITY
8.1 LIMITATION. The Escrow Agent shall incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or negligence. The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement. In all questions arising under the Agreement, the Escrow Agent may rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice the Escrow Agent shall not be liable to anyone. The Escrow Agent shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it.
8.2 INDEMNIFICATION OF ESCROW AGENT. The Companies and CET-SC, jointly and severally, shall indemnify the Escrow Agent for, and hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on the part of Escrow Agent, arising out of or in connection with its carrying out of its duties hereunder.
8.3 ESCROW AGENT WAIVER OF CONFLICT. The Parties acknowledge that the Escrow Agent is providing legal advice to CET-SC and may continue doing so during the Term, and that such circumstance could present a conflict of interest in the execution of the Escrow Agent's carrying out of its duties under this Agreement. Nevertheless all Parties consent to the Escrow Agent acting as escrow agent for the purposes of executing the terms of this Agreement and hereby waive any right to assert a conflict of interest claim during the Term based in and of itself on the existence of the potential conflict that exists as of the Closing Date.
SECTION 9. SUCCESSOR ESCROW AGENT
In the event the Escrow Agent becomes unavailable or unwilling to continue in its capacity herewith, the Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving resignation to the Parties to this Agreement, specifying not less than 60 days' prior written notice of the date when such resignation shall take effect. The Parties may appoint a successor escrow agent without the consent of the Escrow Agent so long as such successor is acceptable to all Parties.
SECTION 10. GENERAL
10.1 NOTICES. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service or by facsimile) to the address or facsimile telephone number set forth beneath the name of such Party below (or to such other address or facsimile telephone number as such Party shall have specified in a written notice given to the other Parties hereto):
IF TO P2S, P2S HOLDINGS, OR CET-DEL:
903 Clint Moore Rd.
Boca Raton, FL 33431
IF TO CET-SC:
W. A. Stokes
Commodity Express Transportation, Inc. 354 South Chimney Lane
Columbia, SC 29209
IF TO ESCROW AGENT:
Kyle G. Michel
Kyle Michel Law Firm, LLC
P.O. Box 5523
Columbia, SC 29209
10.2 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
10.3 HEADINGS. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
10.4 GOVERNING LAW; VENUE. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of South Carolina without giving effect to principles of conflicts of laws.
10.5 SUCCESSORS AND ASSIGNS; PARTIES IN INTEREST. This Agreement shall be binding upon, and inure to the benefit of, all Parties and their successors in interest. None of the Parties shall be permitted to assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of all other Parties.
(a) No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
10.7 AMENDMENTS. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed by all the Parties.
10.8 SEVERABILITY. In the event that any provision of this Agreement, or the application of any such provision to any Party or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Parties or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
10.9 ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the Parties relating to escrowed shares and supersedes all prior agreements and understandings among or between any of the parties relating to escrowed shares.
(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
COMMODITY EXPRESS TRANSPORTATION, INC., A DELAWARE CORPORATION
COMMODITY EXPRESS TRANSPORTATION, INC., A SOUTH CAROLINA CORPORATION
KYLE MICHEL LAW FIRM, LLC
EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement ("Agreement") is made and entered into as of March 21, 2005, 2005 by and between Commodity Express Transportation, Inc., a South Carolina corporation ("Lessor") AND Commodity Express Transportation, Inc., a Delaware corporation, ("Lessee") and Power2Ship, Inc., a Florida corporation, ("Lessee") (collectively referred to as the "Parties"). Each Lessee is jointly and severally liable for the lease payments and performance of all other terms of this Agreement. A judgment entered against one Lessee shall be no bar to an action against the other Lessee.
The Parties agree as follows:
1. EQUIPMENT: Lessor hereby leases to Lessee the commercial trailers used to haul dry commodities described in Schedule A ("Equipment"), which is hereby incorporated into this Agreement
2. LEASE TERM: The initial date of lease for all Equipment listed in Schedule A is March 21, 2005. Each individual trailer in the lease has a specified term, depending on the age of the trailer, as described in Schedule A. As used in this Agreement, "Lease Term" means from March 21, 2005, until the individual trailer in question is surrendered based upon the attached lease schedule A.
3. LEASE PAYMENTS: Lessee agrees to pay to Lessor as rent for the Equipment the amounts specified in Schedule A ("Rent") each month in advance on the first day of each month at:
c/o Al Stokes
354 South Chimney Ln.
Columbia, SC 29209
If during the Lease Term any individual trailers are damaged beyond repair and
Lessor is reimbursed for the value of said trailers, according to the terms of
Section 13 of this Agreement, then the rents shall be reduced accordingly.
4. LATE CHARGES: If any amount under this Agreement is more than five calendar days late, Lessee agrees to pay a late fee of five percent (5%) of the amount that is late. The late fee will increase by five percent (5%) each subsequent 30 days that the amount is late.
5. SECURITY DEPOSIT: The Parties, and additional parties, have agreed to a series of mutual covenants and concessions in a separate document entitled Mutual Agreement, dated on or near the date of this Agreement. In consideration of the covenants and concessions made in the Mutual Agreement, the Parties agree to waive the requirement of a security deposit associated with this Agreement.
6. DELIVERY: Lessee shall acquire control of the Equipment on March 21, 2005. Individual trailers may be at varying locations on that date. Lessor has no duty to physically deliver any Equipment to Lessee at the beginning of the Lease Term. Lessor will not be responsible for any costs associated with delivery of Equipment to Lessee at the beginning of the Lease Term.
7. DEFAULTS: If Lessee fails to perform or fulfill any obligation under this Agreement, Lessee shall be in default of this Agreement. Subject to any statute, ordinance or law to the contrary, Lessee shall have seven (7) business days from the date of notice of default by Lessor to cure the default. In the event Lessee does not cure a default, Lessor may at Lessor's option (a) cure such default and the cost of such action may be added to Lessee's financial obligations under this Agreement; or (b) declare Lessee in default of the Agreement. If Lessee shall become insolvent, cease to do business as a going concern or if a petition has been filed by or against Lessee under the Bankruptcy Act or similar federal or state statute, Lessor may immediately declare Lessee in default of this Agreement. In the event of default, Lessor may, as permitted by law, re-take possession of the Equipment. Lessor may, at its option, hold Lessee liable for any difference between the Rent that would have been payable under this Agreement during the balance of the unexpired term and any rent paid by any successive lessee if the Equipment is re-let minus the cost and expenses of such reletting. In the event Lessor is unable to re-let the Equipment during any remaining term of this Agreement, after default by Lessee, Lessor may at its option hold Lessee liable for the balance of the unpaid rent under this Agreement as if this Agreement had continued in force.
8. POSSESSION AND SURRENDER OF EQUIPMENT: Lessee shall be entitled to possession of the Equipment on the first day of the Lease Term. At the expiration of the Lease Term, Lessee shall surrender the Equipment to Lessor by delivering the Equipment to Lessor or Lessor's agent in good condition and working order, ordinary wear and tear excepted, as it was at the commencement of the Agreement. Delivery of the Equipment shall be to a location within 75 miles of Columbia, South Carolina, mutually agreed upon by the Parties. If the Parties agree to deliver the Equipment to a location beyond a 75 mile radius of Columbia, Lessee may seek recovery from Lessor of the cost of delivery of the Equipment beyond the 75 mile radius.
9. USE OF EQUIPMENT: Lessee shall only use the Equipment in a careful, proper and legal manner and will comply with all laws, rules, ordinances, statutes and orders regarding the use, maintenance of storage of the Equipment.
10. CONDITION OF EQUIPMENT AND REPAIR: Lessee or Lessee's agent has inspected the Equipment and acknowledges that the Equipment is in a condition as noted on the attached inspection reports. The Parties agree that if any individual trailers covered by this Agreement have damage in excess of $250.00 then Lessee shall cause such damage to be repaired, and will invoice Lessor for such repairs. Any repairs made pursuant to this Agreement will be billed at a fixed labor rate of $25.00 per hour, and actual cost for materials. Lessee shall provide detailed invoices to Lessor for these repairs. Lessee and Lessor have agreed that the payment for the first $10,000.00 of repairs shall be deferred until January 31, 2006. If as of the closing date Lessee has not been able to inspect all of the individual trailers covered by this Agreement, than Lessee shall have thirty days from the date of closing to complete the inspections.
The Parties agree that Lessee will be responsible for surrendering the Equipment in the same condition as accepted, normal wear and tear excepted. Provided, if any of the individual trailers are surrendered with damage in excess of $250.00 then Lessor shall cause such damage to be repaired, and will invoice Lessee for such repairs. Any repairs made pursuant to this Agreement will be billed at a fixed labor rate of $25.00 per hour, and actual cost for materials. Lessor shall provide detailed invoices to Lessee for these repairs.
11. GENERAL MAINTENANCE, DAMAGE AND LOSS: Lessee will, at Lessee's sole expense, keep and maintain the Equipment in clean and good working order and repair during the Lease Term. In the event the Equipment is lost or damaged beyond repair, Lessee shall pay to Lessor the replacement cost of the Equipment. The obligations of this Agreement shall continue in full force and effect through the Lease Term.
12. TIRE MAINTENANCE: During the Lease Term, Lessee agrees to assume all responsibilities, including payment of all sums due, for compliance with the current Memorandum of Agreement, dated November 1, 2004, with amendments ("MOA"), between Lessor and The Goodyear Tire and Rubber Company for tire maintenance and replacement. If requested by Lessor, Lessee agrees to enter into a substantially similar agreement with The Goodyear Tire and Rubber Company, or another company so long as Lessor does not suffer financially as a result, for the purpose of relieving Lessor of the liability associated with remaining bound by the MOA. Lessee shall have no obligations or requirements as to minimum tread depth or tire conditions, when the Equipment is surrendered according to paragraph 8 of this agreement.
Lessee agrees to indemnify and hold Lessor and Lessor's property, free and harmless from any liability for losses or claims associated with Lessee's failure to comply with the requirements of the MOA, including the payment of penalties or the loss of use of the Equipment as a result of non-compliance with the MOA. Lessor will provide Lessee with a copy of the MOA as soon as is practical after the signing of this Agreement.
13. INSURANCE: Lessee shall be responsible for maintaining automobile liability insurance on the Equipment at a minimum value of one million dollars ($1,000,000.00) per single occurrence. In addition Lessee shall carry Physical Damage insurance covering loss or damage to the Equipment, with the insured value of the Equipment being not less than 80% of the wholesale cash value. The policy shall name Lessor as an additional insured and shall provide for losses to be payable to Lessor for fire, theft, collision, property damage, personal injury and other such risks as are appropriate. Upon request by Lessor, Lessee shall provide proof of such insurance. In the event of a total loss of a piece of Equipment, Lessee shall pay to Lessor compensation for the lost Equipment at the following calculated amount: Schedule A value minus accumulated monthly depreciation, which amount shall then be multiplied by eighty-five percent (0.85).
14. ENCUMBRANCES, TAXES AND OTHER LAWS: Lessee shall keep the Equipment free and clear of any liens or other encumbrances, and shall not permit any act where Lessor's title or rights may be negatively affected. Lessee shall be responsible for complying with and conforming to all laws and regulations relating to the possession, use and/or maintenance of the Equipment. Furthermore, Lessee shall promptly pay all taxes, fees, licenses and governmental charges, together with any penalties or interest thereon, relating to the possession, use or maintenance of the Equipment.
15. LESSORS REPRESENTATIONS: Lessor represents and warrants that he/she has the right to lease the Equipment as provided in this Agreement and that Lessee shall be entitled to quietly hold and possess the Equipment, and Lessor will not interfere with that right as long as Lessee pays the Rent in a timely manner and performs and complies with all other obligations under this Agreement.
16. CONSEQUENTIAL DAMAGES: In no event shall Lessor be liable for any loss of profits or other consequential damages or any inconvenience resulting from any theft of, damage to, loss of, defect in or failure of any of the Equipment or the time consumed in recovering, repairing, adjusting, servicing or replacing any Equipment; and there shall be no abatement or apportionment of rental during this time. This paragraph does not apply to theft, damage, loss, defect or failure that was the result of Lessor's negligence.
17. OWNERSHIP: The Equipment is and shall remain the exclusive property of Lessor.
18. SEVERABILITY: If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
19. ASSIGNMENT: Neither this Agreement nor Lessee's rights hereunder are assignable except with Lessor's prior, written consent.
20. BINDING EFFECT: The covenants and conditions contained in the Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
21. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina.
22. NOTICE: Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service to:
LESSOR: LESSEE: c/o Al Stokes Commodity Express Transportation, Inc. 354 South Chimney Lane 903 Clint Moore Road Columbia, SC 29209 Boca Raton, FL 33487
Either party may change such addresses from time to time by providing notice as set forth above.
23. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind pertaining to the lease of the Equipment that precedes the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the lease of the Equipment. This Agreement may be modified in writing, but must be signed by both Lessor and Lessee.
24. CUMULATIVE RIGHTS: Lessor's and Lessee's rights under this Agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
25. WAIVER: The failure of either party to enforce any provision(s) of this Agreement shall not be deemed a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every other provision of this Agreement. The acceptance of rent by Lessor does not waive Lessor's right to enforce any provisions of this Agreement.
26. INDEMNIFICATION: Except for damages, claims or losses due to Lessor's acts or negligence, Lessee, to the extent permitted by law, will indemnify and hold Lessor and Lessor's property, free and harmless from any liability for losses, claims, injury to or death of any person, or for damage to property arising from Lessee using and possessing the Equipment or from the acts or omissions of any person or persons, including Lessee, using or possessing the Equipment with Lessee's express or implied consent.
IN WITNESS WHEREOF, the parties sign below to signify agreement with, and acceptance of, the terms and conditions of this Agreement.
COMMODITY EXPRESS TRANSPORTATION, INC., SOUTH CAROLINA
/s/ W. H. Stokes ---------------- Signature
COMMODITY EXPRESS TRANSPORTATION, INC., DELAWARE
/s/ Richard Hersh ----------------- Signature
/s/ Richard Hersh ----------------- Signature
This Commercial Lease Agreement ("Lease") is entered into by and between Commodity Express Transportation, Inc., a Florida corporation, ("Lessee") and Power2Ship, Inc., a Florida corporation, ("Lessee") AND Commodity Express Transportation, Inc., a South Carolina Corporation ("Lessor"), together the parties ("Parties"). Each Lessee is jointly and severally liable for the payment of rent and performance of all other terms of this Agreement. A judgment entered against one Lessee shall be no bar to an action against the other Lessee.
Lessor rents to Lessee, and Lessee rents from Lessor the following described premises, in its present state and condition, all of the fenced premises, including buildings and improvements, situated at 210 Bray Park Road, in the City of West Columbia, County of Lexington, State of South Carolina, ("the Premises"), of which Lessor is the owner on March 1, 2005, subject to the terms and conditions in this Agreement.
LESSEE'S ACCESS TO PREMISES:
Upon the execution of this Lease, Lessor grants to Lessee, Lessee's employees, agents and invitees access to and from the Premises.
The term ("Term") of this Lease is for five (5) years, commencing on March 21, 2005 and expiring on March 20, 2010, unless the AmCor contract is not renewed then Lessee at its option may terminate the lease.
Lessee shall use and occupy the Premises for the purpose of: continuing the current use of the Premises which is as a commercial trucking terminal and business office.
a. Not to use the Premises for living quarters or residence.
b. Surrender the Premises to Lessor at the end of the Term or any renewal period without the necessity of any notice from either Lessor or Lessee to terminate the same.
c. Lessee will keep the Premises clean, sanitary and in good condition and, upon termination of the tenancy, return the Premises to Lessor in a condition identical to that which existed when Lessee took occupancy, except for ordinary wear and tear and any additions or alterations authorized by Lessor.
d. To keep the Premises in good repair at Lessee's own expense with the exception of those repairs specifically designated as Lessor's responsibility herein.
e. Not to make any occupancy of the Premises contrary to law or contrary to any directions, rules, regulations, regulatory bodies, or officials having jurisdiction or which shall be injurious to any person or property.
f. Not to permit any waste or nuisance.
Notwithstanding the forgoing or any other provision of this Agreement, Lessee shall not use the Premises for the purposes of storing, manufacturing or selling any explosives, flammables or other inherently dangerous substance, chemical, thing or device. Lessee may store gasoline on the Premises, but only after obtaining written consent from Lessor.
LESSOR'S RESPONSIBILITY FOR REPAIRS:
All repairs shall be made by Lessee at Lessee's own expense. If Lessor pays for any repairs or any part of any repairs, such payment shall constitute Additional Rent, as hereinafter defined, and be payable by Lessee under this Lease, due from Lessee to Lessor at the next rent day after any such payment. Lessee acknowledges and agrees that it is leasing the Premises in AS IS condition.
Lessee hereby indemnifies and holds Lessor and Lessor's officers, directors, shareholders, managers, members, agents and employees harmless from and against, and shall reimburse Lessor and Lessor's officers, directors, shareholders, managers, members, agents and employees for, any and all "Losses" (as hereinafter defined) arising from, out of or as a consequence, directly or indirectly, of the release or presence of any Hazardous Materials on the Premises which first occurs during the Term of this Lease, whether foreseeable or unforeseeable, and whether or not known to Lessee, it being understood and agreed that the foregoing indemnity includes, but is not limited to, all costs of removal, remediation of any kind, detoxification, clean up and disposal of such Hazardous Materials and the preparation of any closure or other required plans, all costs of determining whether the Premises is in compliance and causing the Premises to be in compliance with all applicable Environmental Laws, all costs and fees associated with claims for damages to persons, property, or natural resources, and Lessor's reasonable attorneys' fees and consultants' fees and court costs in respect thereto whether or not litigation or administrative proceedings shall occur, including all costs and expenses incurred or suffered by Lessor by reason of any violation of any applicable Environmental Law which occurs, or has occurred, upon the Premises during the Term of this Lease, or by reason of the imposition of any governmental lien for the recovery of environmental clean-up costs expended by reason of such violation, it being expressly understood and agreed that to the extent Lessor and Lessor's officers, directors, shareholders, managers, members, agents and employees, or any of them are strictly liable under any applicable statute or regulation pertaining to the protection of the environment, this indemnity shall likewise be without regard to fault on the part of Lessee with respect to the violation of law which results in such liability. "Losses" shall mean any and all loss, claim, liability, damages, injuries to person, property or natural resources, cost, expense, action or cause of action. Any hazardous material liability, damage that occurred prior to March 1, 2005 is excluded from Lessee's liability.
Lessee hereby covenants and agrees that all obligations of Lessee under this
Section shall survive any termination of this Lease, it being further understood and agreed that the rights of Lessor under this Section shall be in addition to any other rights and remedies under this Lease or at law or in equity.
Lessee shall comply with all Environmental Laws throughout the Term
PAYMENT OF RENT:
Lessee will pay to Lessor an annual rental of fifty thousand four hundred Dollars ($50,400.00) payable in equal installments of four thousand two hundred Dollars ($4,200.00) (the "rent") in advance on the first day of each month, except when that day falls on a weekend or a legal holiday, in which case rent is due on the next business day.
Lessee covenants to pay the rent when due and payable, without any setoff, deduction or prior demand whatsoever. Any payment by Lessee or acceptance by Lessor of a lesser amount than shall be due from Lessee to Lessor shall be treated as payment on account. The acceptance by Lessor of a check, or other instrument, for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check or other instrument, that such lesser amount is payment in full, shall be given no effect, and Lessor may accept such check or other instrument without prejudice to any other rights or remedies which Lessor may have against Lessee.
Rent will be paid by check to the following address:
c/o Al Stokes
354 South Chimney Lane
Columbia, SC 29209
Upon the execution of this Lease and during the Term hereof, Lessee also covenants and agrees to pay as "Additional Rent" prior to the respective due dates thereof all insurance premiums, charges, costs, expenses, and payments required to be paid by Lessee in accordance with any of the provisions of this Lease.
All amounts payable by Lessee under this Section shall collectively comprise the rent due and payable under this Lease ("rent").
RETURNED CHECK AND STOP PAYMENT:
In each instance that a check or other acceptable instrument offered by Lessee to Lessor for any amount due under this Agreement or in payment of rent is returned for lack of sufficient funds, a "stop payment" or any other reason, a service charge of $50, which does not exceed the maximum amount allowed by applicable South Carolina law, will be assessed.
If Lessee fails to pay the rent in full before the end of the tenth day after it's due, Lessee will be assessed a late charge of $50, for the handling of such late payment, as allowed by applicable South Carolina law. Lessor reserves and in no way waives the right to insist on payment of the rent in full on the date it is due. This late payment charge is in addition to any other rights or remedies of the Lessor.
Unless otherwise provided in this Lease, all applications and connections for necessary utility services on the Premises shall be made in the name of Lessee only. In addition, unless otherwise provided in this Lease, Lessee shall be solely liable for utility charges as they become due, including, without limitation, those for sewer, water, gas, electricity, cable and telephone services.
In the event Lessee fails to pay utilities as due, Lessor has the right to enforce and shall enforce payment in the same manner as in rent in arrears or default.
LESSEE'S EXAMINATION AND ACCEPTANCE OF PREMISES:
Lessee acknowledges that Lessee has examined the Premises and Lessee's acceptance of this agreement is conclusive evidence that said Premises are in good and satisfactory order and repair unless otherwise specified herein; and Lessee agrees that no representations as to the condition of the Premises have been made and that no agreement has been made to redecorate, repair or improve the Premises unless hereinafter set forth specifically in writing. Lessor will deliver the Premises and all common areas in a habitable condition, pursuant to applicable state law. Lessee takes Premises in its AS-IS condition. Lessee agrees not to damage the Premises through any act or omission, and to be responsible for any damages sustained through the acts or omissions of Lessee, Lessee's employees or Lessee's invitees, licensees, and/or guests. If such damages are incurred, Lessee is required to pay for any resulting repairs at the same time and in addition to the next month's rent payment, with consequences for nonpayment identical to those for nonpayment of rent described herein. Any damage, contamination or hidden structural damage is excluded from this paragraph and is the responsibility of Lessor's.
The Parties, and additional parties, have agreed to a series of mutual covenants and concessions in a separate document entitled Mutual Agreement, dated on or near the date of this Agreement. In consideration of the covenants and concessions made in the Mutual Agreement, the Parties agree to waive the requirement of a security deposit associated with this Agreement.
LESSOR'S RIGHT TO PAY LESSEE'S OBLIGATIONS TO OTHERS:
Lessor reserves the right, but not the obligation, in addition to any other right or remedy, to pay Lessee's obligations to others due to be paid by Lessee under the provisions of this Lease, including, but not limited to, utilities, after five (5) days notice of Lessor's intention to do so to Lessee. In the event of any such payment by Lessor, such payment shall constitute Additional Rent payable by Lessee under this Lease, due from Lessee to Lessor at the next rent day after any such payment.
Lessee shall not do any act which shall in any way encumber the title of Lessor in and to the Premises, nor shall Lessee create or permit to be created, and shall promptly discharge, any such lien (including, but not limited to, any mechanic's, contractor's, subcontractor's or material man's lien or any lien, encumbrance or charge arising out of any conditional sale, title retention agreement, chattel mortgage, security agreement, financing statement or otherwise) upon the Premises or any part thereof or the income therefrom, and Lessee shall not suffer any other matter or thing whereby the estate, rights and interest of Lessor in the Premises or any part thereof might be impaired.
If Lessee shall fail to cause any such lien to be discharged of record, then Lessor, after Fifteen (15) days notice of its intention to do so, shall have the right, but not the obligation, in addition to any other right or remedy, to discharge such lien either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or bonding proceedings, and in any such event Lessor shall be entitled if it so elects to compel the prosecution of an action for foreclosure of such lien by the lienor and to pay the amount of judgment in favor of the lien owner with interest, costs and allowances. Any amount so paid by Lessor and all costs and expenses (including reasonable attorneys' fees) incurred by Lessor in connection therewith shall constitute Additional Rent payable by Lessee under this Lease, due from Lessee to Lessor at the next rent day after any such payment.
This Lease shall constitute notice that Lessor shall not be liable for any work performed or to be performed, or any materials furnished or to be furnished, at the Premises for Lessee upon credit, and that no mechanic's or other lien for such work or materials shall attach to or affect the estate or interest of Lessor in and to the Premises, unless specifically ordered by Lessor in writing.
Lessee shall have no power to do any act or make any contract that may create or be the foundation for any lien, mortgage or other encumbrance upon the estate of Lessor, or any other interest of Lessor in the Premises or the other Improvements or any part thereof.
DEFAULT AND TERMINATION FOR DEFAULT:
Each of the following shall be an "Event of Default":
a. Lessee shall fail to pay rent when due, the Lessor, at his option, may
terminate all rights of the Lessee herein and demand surrender of the
Premises, after not less than fifteen (15) days, or a lesser time if
allowed by applicable law, written notice of such default, given in a
manner required by law unless Lessee rectifies or cures the default within
the said time.
b. If Lessee shall fail to pay any other payment of money, costs or expenses to be paid by Lessee under this Lease, when due, and the continuance of such failure for a period of fifteen (15) days, or lesser time if allowed by applicable law, after written notice from Lessor specifying such failure;
c. In the event of a default made by Lessee in any of the other covenants or conditions to be kept, observed and performed by Lessee, Lessee shall have thirty (30) days, or lesser time if allowed by applicable law, after receipt of written notice thereof to cure such default. In the event that the Lessee shall fail to cure any default within the time allowed under this paragraph, Lessor may declare the Term of this Lease ended and terminated by giving Lessee written notice of such intention, and if possession of the Premises is not surrendered, Lessor may reenter the Premises. Lessor shall have, in addition to the remedy above provided, any other right or remedy available to Lessor on account of any Lessee default, either in law or equity. Lessor shall use reasonable efforts to mitigate its damages.
d. The filing or execution or occurrence of any of the following will be considered a Default on the part of Lessee:
a. A petition in bankruptcy by or against Lessee;
b. A petition against or answer by Lessee seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same or different kind under any provision of any bankruptcy laws;
c. Adjudication of Lessee as a bankrupt or insolvent;
d. An assignment by Lessee for the benefit of creditors;
e. A petition against or proceeding by Lessee for, or the appointment of, a trustee, receiver, guardian, conservator or liquidator of Lessee with respect to the Premises or with respect to all or substantially all of Lessee's property; or
f. A petition against or proceeding by or against Lessee for its dissolution or liquidation or the taking of possession of Lessee's property by any governmental authority in connection with dissolution or liquidation.
Where in the case of a petition filed against Lessee under (a), (b), (e) or (f) above, such petition is not dismissed within ninety (90) days after the filing thereof;
a. Entry of an order, judgment or decree by any court of competent
jurisdiction granting any prayer or demand contained in any petition under
(a), (b), (e) or (f) above, which order, judgment or decree is not reversed or vacated within ninety (90) days after it is entered;
b. Vacation or abandonment of the Premises; or
c. Taking by any person of Lessee's interest in this Lease upon execution, attachment or other process of law or equity.
In the event of Default on the part of Lessee, Lessor, at its option, without further notice or demand to Lessee, may, in addition to all other rights and remedies provided in this Lease, at law or in equity: (a) terminate this Lease and Lessee's right of possession of the Premises, and recover all damages to which Lessor is entitled at law, specifically including, without limitation, the excess of the aggregate rent that would have accrued for the balance of the Term or (b) terminate Lessee's right of possession of the Premises without terminating this Lease. In all events, Lessor may re-lease the Premises, or any part thereof for the account of Lessee, for such rent and term and upon such terms and conditions as are acceptable to Lessor. If Lessor shall have elected to pursue its right to terminate Lessee's right of possession of the Premises without terminating this Lease, then Lessor shall have the further right and remedy to subsequently rescind such election and terminate this Lease. If Lessor fails to re-lease the Premises, or if the Premises are re-leased and a sufficient sum is not realized therefrom to satisfy the payment, when due, of rent reserved under this Lease for any monthly period, then Lessee shall pay Lessor a sum equal to the amount of rent due under this Lease for each such monthly period, or if the Premises have been re-leased, Lessee shall pay any such deficiency on the rent day applicable to such month. Nothing in the foregoing sentence, however, shall be deemed to mean that Lessor can only collect damages from Lessee hereunder in monthly installments, it being expressly acknowledged by Lessee that Lessor shall always have the right to collect, in a lump sum, from Lessee, damages equal to the excess of the rent that would have accrued for the balance of the Term. Lessee agrees that Lessor may file suit to recover any sums due to Lessor hereunder at any time or from time to time and that such suit or recovery of any amount due Lessor hereunder shall not be any defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Lessor. In the event Lessor elects to terminate Lessee's right of possession only, without terminating this Lease, Lessor may, at Lessor's option, enter into the Premises, remove Lessee's signs, Lessee's property, and other evidences of tenancy, and take and hold possession thereof; provided, however, that such entry and possession shall not terminate this Lease or release Lessee, in whole or in part, from Lessee's obligation to pay the rent reserved hereunder for the full Term or from any other obligation of Lessee under this Lease. Any and all property which may be removed from the Premises by the Lessor pursuant to the authority of this Lease or of law, to which the Lessee is or may be entitled, may be handled, removed or stored by the Lessor at the risk, cost and expense of the Lessee, and the Lessor shall in no event be responsible for the value, preservation or safekeeping thereof.
Upon occurrence of any Event of Default, and after proper notice of default has
been given, Lessor may, at its option, in addition to any other remedy or right
given hereunder or by law, give notice to Lessee that this Lease shall terminate
upon the date specified in the notice, which date shall not be earlier than ten
(10) days after mailing or delivery of such notice.
No waiver of any default of Lessee hereunder shall be implied from any omission to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and that only for the time and to the extent therein stated. One or more waivers by Lessor or Lessee shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
Any provisions for the termination of this Lease shall not operate to exclude or suspend any other remedy of the Lessor for breach or for the recovery of said rent for the full Term.
NOTICES - AGENTS AND AUTHORITY TO RECEIVE LEGAL PAPERS:
Any notice, which either party may or is required to give, be it for default of the terms and covenants of this Lease or any other reason, may be given by mailing the same, by certified mail, to the following address:
Lessor: c/o Al Stokes
354 South Chimney Lane
Columbia, SC 29209
Lessee: Commodity Express Transportation, Inc.
903 Clint Moore Road
Boca Raton, FL 33487
Upon Lessor's termination of this, Lessee expressly agrees and understands that unless prohibited by applicable State law, the entire remaining balance of unpaid rent for the remaining Term of this Lease shall ACCELERATE, whereby the entire sum shall become immediately due, payable, and collectible.
Lessee hereby agrees, in the event of any default by Lessor, Lessee shall, before exercising any rights that Lessee may have at law to cancel this Lease, first send notice by registered or certified mail, or hand delivery, to Lessor, and shall have offered Lessor thirty (30) days in which to correct and cure the default or commence a good faith effort to cure such default.
OPTION TO RENEW:
Provided that Lessee is not in default in the performance of this Lease, Lessee shall have the option to renew this Lease for one additional term of one year commencing at the expiration of the initial Lease Term. All of the terms, conditions and covenants of this Lease shall apply during the renewal Term except that the monthly rent shall be the sum of five thousand forty dollars ($5,040.00). The option shall be exercised by written notice given to Lessor not less than 90 days prior to the expiration of the initial Lease Term. If notice is not given in the manner provided herein within the time specified, this option shall expire.
LESSEE'S FAILURE TO TAKE POSSESSION:
If, after signing this Agreement, Lessee fails to take possession of the Premises, Lessee will still be responsible for paying rent and complying with all other terms of this Agreement.
LESSOR'S FAILURE TO DELIVER POSSESSION:
If Lessor is unable to deliver possession of the Premises to Lessee for any reason not within Lessor's control, including but not limited to partial or complete destruction of the Premises, Lessee will have the right to terminate this Agreement upon proper notice as required by law. In such event, Lessor's liability to Lessee will be limited to the return of all sums previously paid by Lessee to Lessor. Lessee agrees to hold Lessor and Lessor's agents harmless for loss or damage for any reason not within Lessor's control. In any case, Lessor's liability to Lessee will be limited to the return of all sums previously paid by Lessee to Lessor.
TERMINATION OF LEASE - HOLD OVER:
Either Lessor or Lessee may terminate this Lease at the expiration of said Lease Term or any extension thereof by giving the other sixty (60) days written notice prior to the due date.
Lessee expressly agrees to the following:
a. If Lessee, with the consent of Lessor, expressed or implied, shall hold
over after the expiration of the Term of this Lease, Lessee shall, in the
absence of any written agreement to the contrary, continue such tenancy
from month to month only, and shall not be entitled to a full Term renewal.
Lessee shall be entitled to possession until Lessor has given Lessee sixty
(60) days notice that such month-to-month tenancy shall be terminated. Only notice of default, as hereinafter provided, shall be required.
b. If Lessee, without the consent of Lessor, expressed or implied, shall hold over after the expiration of the Term of this Lease, Lessee shall be considered a tenant at sufferance at double the rent herein provided, prorated by the day until possession is returned to Lessor.
c. Lessees holding over after or beyond the expiration of the notice period of a lawful Notice of Termination shall be Lessee holding over without the consent of the Lessor, and Lessee shall be considered a tenant at sufferance, at double the rent herein provided, prorated by the day until possession is returned to Lessor. This shall in no way limit any other remedies and rights of recovery that Lessor may have under applicable law.
If any legally, constituted authority condemns the Premises or such part thereof which shall make the Premises unsuitable for leasing, this Lease shall cease when the public authority takes possession, and Lessor and Lessee shall account for rental as of that date. Such termination shall be without prejudice to the rights of either party to recover compensation from the condemning authority for any loss or damage caused by the condemnation. Neither party shall have any rights in or to any award made to the other by the condemning authority.
If the Premises or any part thereof or any estate therein shall be taken by eminent domain, this Lease shall terminate on the date when title vests pursuant to such taking. The rent shall be apportioned as of the termination date, and any rent paid for any period beyond that date shall be repaid to Lessee. Lessee shall not be entitled to any part of the award for such taking or any payment in lieu thereof, but Lessee may file a claim for any taking of fixtures and improvements owned by Lessee, and for moving expenses.
ASSIGNMENT OF AGREEMENT AND SUBLETTING:
Lessee shall have the right without Lessor's consent, to assign this Lease to a corporation with which Lessee may merge or consolidate, to any subsidiary of Lessee, to any corporation under common control with Lessee, or to a purchaser of substantially all of Lessee's assets provided that (a) the net worth of such assignee after such merger, reorganization or consolidation shall be no less than that of Lessee immediately prior to such merger, reorganization or consolidation, (b) Lessee is not at such time in Default hereunder, and (c) such successor shall execute an instrument in writing fully assuming all of the obligations and liabilities imposed upon Lessee hereunder and deliver the same to Lessor; whereupon Lessee shall be discharged from any further liability hereunder.
Except as set forth above, Lessee will not sublet any part of the Premises or assign this Agreement without the prior written consent of Lessor, which shall not be unreasonable withheld. Any such assignment or subletting without consent shall be void and, at the option of the Lessor, may terminate this Lease.
No assignment or transfer of this Lease by Lessee consented to by Lessor shall be effective, unless the assignee or transferee shall, at the time of such assignment or transfer, assume all the terms, covenants and conditions of this Lease thereafter to be performed by Lessee and shall agree to be bound thereby. Notwithstanding such assignment or transfer or the acceptance by Lessor from such assignee of any rent or other monies or other performance of the obligations of Lessee hereunder, Lessee shall remain liable and obligated as a principal (and not as a surety or guarantor) to perform all the terms, conditions and covenants, including the payment of rent and other monies, herein provided to be performed by Lessee.
VIOLATION OF LAWS:
Lessee, guests and invitees of either Lessee or guests will not use the Premises in such a manner that violates any law, ordinance, statutes or requirement of any municipal, state or federal authority now in force, or which may hereafter be in force, pertaining to the Premises, occasioned by or affecting the use thereof by Lessee.
Lessor shall comply with all laws, orders, ordinances, statutes or requirements now or hereafter affecting the Premises.
While this Agreement is in effect, Lessor shall keep the Premises insured against loss by fire in such amounts as Lessor shall deem appropriate. Lessee shall be responsible, at its expense, for fire and extended coverage insurance on all of its personal property, including, without limitation, equipment, freight, furniture, and removable trade fixtures, located in the Premises.
If the Premises is damaged by fire or other casualty resulting from any act or negligence of Lessee or any of Lessee's agents, employees or invitees, rent shall not be diminished or abated while such damages are under repair, and Lessee shall be responsible for the costs of repair not covered by insurance.
Lessee shall, at its own expense, maintain a policy or policies of comprehensive general liability insurance with respect to its activities in and on the Premises with the premiums thereon fully paid on or before the due date, by companies reasonably satisfactory to Lessor and any mortgagee of Lessor and licensed to do business in the State of South Carolina, such insurance to afford minimum protection of not less than one million dollars ($1,000,000.00) combined single limit coverage of bodily injury, property damage or combination thereof. Lessor and such other persons or entities as Lessor may designate, as their interests may appear, shall be listed as an additional insured on Lessee's policy or policies of comprehensive general liability insurance, and such policies shall provide that losses shall be paid to such insureds as their interests may appear. Lessee shall provide Lessor with current Certificates of Insurance evidencing Lessee's compliance with this Paragraph along with receipts or other evidence that the premiums thereon have been paid for at least one (1) year. Lessee shall obtain the agreement of Lessee's insurers to notify Lessor of a material change of coverage or that a policy is due to expire at least thirty (30) days prior to the implementation of such change or expiration. Certificates evidencing renewals of each policy of insurance shall be delivered to Lessor at least twenty (20) days prior to the expiration dates of the respective policies. To the maximum extent permitted by insurance policies owned by Lessor or Lessee, Lessee and Lessor, for the benefit of each other, waive any and all rights of subrogation that might otherwise exist.
Lessee shall perform and satisfy all requirements of the companies writing any insurance policies referred to in this Lease so that at all times companies of good standing, satisfactory to Lessor, shall be willing to write such insurance.
In case Lessee shall at any time fail, neglect or refuse to procure or renew any insurance hereinabove provided, then Lessor shall have the right, but not the obligation, to procure or renew such insurance and any amounts paid therefore by Lessor shall be so much Additional Rent due at the next rent day after any such payment.
Lessor shall not be required to maintain insurance against thefts on or within the Premises.
Lessor shall pay, prior to delinquency, all general real estate taxes and installments of special assessments coming due during the Lease Term on the Premises. Lessee shall be responsible for paying all personal property taxes with respect to Lessee's personal property at the Premises.
In the event there is any increase during any year of the Term of this Lease in the City, County or State real estate taxes over and above the amount of such taxes assessed for the tax year immediately prior to the year in which the Term of this Lease commences, whether because of increased rate or valuation, Lessee shall pay to Lessor upon presentation of paid tax bills an amount equal to 100% of the increase in such real estate taxes. In the event that such taxes are assessed for a tax year extending beyond the Term of this Lease, the obligation of Lessee shall be proportionate to the portion of the Term included in such year.
PROPERTY DAMAGE AND DESTRUCTION:
If the Premises is so damaged by fire, casualty or structural defects that the same cannot be used for Lessee's purposes, then Lessee shall have the right within ninety (90) days following damage to elect by notice to Lessor to terminate this Lease as of the date of such damage.
In the event of a partial destruction of the Premises during the Term hereof, which is beyond Lessee's reasonable control, from any other cause, except in the case where the Premises is damaged by fire or other casualty resulting from any act or negligence of Lessee or any of Lessee's agents, employees or invitees, as previously discussed, Lessor shall forthwith repair the same, provided that such repairs can be made within sixty (60) days under existing governmental laws and regulations, but such partial destruction shall not terminate this Lease. Lessee shall be relieved from paying rent and other charges during any portion of the Lease Term that the Premises are inoperable or unfit for occupancy, or use, in whole or in part, for Lessee's purposes, except in the case where the Premises is damaged by fire or other casualty resulting from any act or negligence of Lessee or any of Lessee's agents, employees or invitees, as previously discussed. Rentals and other charges paid in advance for any such periods shall be credited on the next ensuing payment(s), if any, but if no further payments are to be made, any such advance payments shall be refunded to Lessee. In making the repairs called for in this paragraph, Lessor shall not be liable for any delays resulting from strikes, governmental restrictions, inability to obtain necessary materials or labor or other matters which are beyond the reasonable control of Lessor.
In the event said repairs cannot be made within sixty (60) days or Lessor shall not elect to make such repairs that cannot be made within sixty (60) days, this Lease may be terminated at the option of either party.
In the event that the Premises is destroyed to an extent of not less than one-half of the replacement cost of the Premises, Lessor may elect to terminate this Lease.
ALTERATIONS AND REPAIRS BY LESSEE:
Lessee shall not, without first obtaining the written consent of Lessor, make any alteration(s), addition(s), or improvement(s), in, to or about the Premises.
During the Lease Term, Lessee shall make, at Lessee's expense, following Lessor's written consent, all necessary repairs to the Premises. Repairs shall include such items as routine repairs of floors, walls, ceilings, and other parts of the Premises damaged or worn through normal occupancy. Lessor is not responsible for repairs to the Premises during the Lease Term.
Unless authorized by law, Lessee will not, without Lessor's prior written consent, alter, re-key or install any locks to the Premises or install or alter any burglar alarm system. Lessee will provide Lessor with a key or keys capable of unlocking all such re-keyed or new locks as well as instructions on how to disarm any altered or new burglar alarm system.
Lessee, at Lessee's expense, shall have the right following Lessor's written consent, to remodel, redecorate, and make additions, improvements and replacements of and to all or any part of the Premises from time to time as Lessee may deem desirable, provided the same are made in a workmanlike manner and utilizing good quality materials. Lessee shall have the right to place and install personal property, trade fixtures, equipment and other temporary installations in and upon the Premises, and fasten the same to the Premises. All personal property, equipment, machinery, trade fixtures and temporary installations, whether acquired by Lessee at the commencement of the Lease Term or placed or installed on the Premises by Lessee thereafter, shall remain Lessee's property free and clear of any claim by Lessor. Lessee shall have the right to remove the same at any time during the Term of this Lease provided removal of such improvement(s) will not cause material injury to the Premises. All improvements made by Lessee to the Premises which are so attached to the Premises that they cannot be removed without material injury to the Premises, shall become the property of Lessor upon installation. Not later than the last day of the Term, Lessee shall, at Lessee's expense, remove all of Lessee's personal property and those improvements made by Lessee which have not become the property of Lessor, including trade fixtures, cabinetwork, movable paneling, partitions, and the like; repair all injury done by or in connection with the installation or removal of such property and improvements; and surrender the Premises in as good condition as they were at the beginning of the Term, reasonable wear, and damage by fire, the elements, casualty, or other cause not due to the misuse or neglect by Lessee or Lessee's agents, employees, visitors, or licensees, excepted.
In any event, all property of Lessee remaining on the Premises after the last day of the Term of this Lease shall be conclusively deemed abandoned and may be removed by Lessor, and Lessee shall reimburse Lessor for the cost of such removal.
ALTERATIONS AND REPAIRS BY LESSOR:
Lessor shall be responsible for the maintenance and repair of the roof and structural integrity of all buildings on the Premises. Lessor may make alterations to the roof and structural integrity as long as such alterations do not conflict with Lessee's right of use of the Premises.
LESSOR'S RIGHT TO ACCESS:
In the event of an emergency, or to show the Premises to prospective buyers or Lessees, or to conduct an annual inspection, or to address a safety problem, or for the purposes of inspecting the same, Lessor or Lessor's agents may enter the Premises at reasonable hours, provided Lessor shall not thereby unreasonably interfere with Lessee's business on the Premises. Except in cases of emergency, Lessee's abandonment of the Premises, court order or where it is impractical to do so, Lessor shall give Lessee notice on the prior business day before entering.
Lessee will permit Lessor at any time within ninety (90) days prior to the expiration of this Lease, to place upon the Premises any usual "To Let" or "For Lease" signs, and permit persons desiring to lease the same to inspect the Premises thereafter.
By executing this Lease, Lessee acknowledges that the Premises are in good order and repair, unless otherwise indicated herein. Lessee shall, at its own expense and at all times, maintain the Premises in good and safe condition, including, without limitation, plate glass, electrical wiring, plumbing and heating installations and any other system or equipment upon the Premises, and shall surrender the same at termination hereof, in as good condition as received, normal wear and tear excepted. Lessee shall be responsible for all repairs required
NOTICE OF INJURIES ON PREMISES:
In the event of any significant injury or damage to Lessee, Lessee's employees, or Lessee's invitees, licensees, and/or guests, or any personal property, suffered on the Premises or in any common area, written notice of same shall be provided by Lessee to Lessor at the address designated for delivery of notices as soon as possible but not later than five (5) business days after said injury or damage. Failure to provide such notice shall constitute a breach of this Lease.
Lessee shall have the right to place on the Premises, at locations selected by Lessee, any signs which are permitted by applicable zoning ordinances and private restrictions. Lessor shall assist and cooperate with Lessee in obtaining any necessary permission from governmental authorities or adjoining owners and occupants for Lessee to place or construct the foregoing signs. Lessee shall repair all damage to the Premises resulting from the removal of signs installed by Lessee.
This Lease shall be subject and subordinate at all times to the lien of all mortgages and trust deeds in any amount or amounts whatsoever now or hereafter placed on or against the Premises or on or against Lessor's interest or estate therein, all without the necessity of having further instruments executed on the part of Lessee to effectuate such subordination; provided that in the event of a foreclosure of any such mortgage or trust deed or any other action or proceeding for the enforcement thereof, or of any sale thereunder, this Lease will not be barred, terminated, cut off or foreclosed nor will the rights and possession of Lessee hereunder be disturbed if there shall exist no Event of Default with respect to the payment of rent or any other Event of Default hereunder. Lessee shall attorn to the purchaser at any such foreclosure, sale or other action or proceeding or, if requested, enter into a new lease for the balance of the Term then remaining upon the same terms and provisions as are in this Lease contained. Lessee agrees to execute and deliver upon demand such further instruments evidencing such subordination of this Lease to the lien of any such mortgages or trust deeds as may be required by Lessor.
Notwithstanding the foregoing, Lessee shall from time to time on request from Lessor execute and deliver any documents or instruments that may be required by any lender to effectuate such subordination. If Lessee fails to execute and deliver any documents or instruments, Lessee irrevocably constitutes and appoints Lessor as Lessee's attorney in fact to execute and deliver such documents or instruments
BROKERAGE FEES, COMMISSIONS:
Lessee represents that Lessee was not shown the Premises by any real estate broker or agent and that Lessee has not otherwise engaged in, any activity which could form the basis for a claim for real estate commission, brokerage fee, finder's fee or other similar charge, in connection with this Lease. Lessee agrees to defend and hold harmless Lessor in the event a claim for a broker's fee is made in connection with this Lease transaction.
MEMORANDUM OF LEASE:
The parties hereto contemplate that this Lease should not and shall not be filed for record, but in lieu thereof, at the request of either party, Lessor and Lessee shall execute a Memorandum of Lease to be recorded for the purpose of giving record notice of the appropriate provisions of this Lease.
At any time and from time to time but on not less than ten (10) days prior
written request by either party hereto, the other party shall execute,
acknowledge and deliver to the requesting party, promptly upon request, a
certificate certifying (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification),
(b) the date, if any, to which rent and other sums payable hereunder have been paid, (c) that no notice has been received by such party of any Default which has not been cured, except as to Defaults specified in the certificate, and (d) such other matters as may be reasonably requested by the requesting party. Any such certificate may be relied upon by any prospective purchaser, mortgagee or beneficiary under any trust deed of the Premises or any part thereof and by any collateral assignee of this Lease.
INDEMNIFICATION OF LESSOR:
Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the Premises and Lessee agrees to hold Lessor harmless from any claim for damages, during the Term of this Lease or any extension of this Lease, no matter how caused.
Lessee agrees to pay, and to indemnify Lessor against, all costs and expenses (including, but not limited to, Lessor's reasonable attorneys' fees) incurred by or imposed upon Lessor by or in connection with any litigation to which Lessor becomes or is made a party without fault in its part, whether commenced by or against Lessee, or that may be incurred by Lessor in enforcing any of the covenants and agreements of this Lease (with or without the institution of any action or proceeding relating to the Premises or this Lease) or in obtaining possession of the Premises after an Event of Default or upon expiration or earlier termination of this Lease.
Lessor may, but shall not be obligated to, cure any Default by Lessee hereunder. All sums expended and all costs and expenses (including, but not limited to, reasonable attorneys' fees) incurred by Lessor pursuant to the provisions of this Lease or on account of any Default by Lessee under this Lease and all such sums shall become Additional Rent under this Lease, payable by Lessee to Lessor on the next rent date after such expenditure.
All rent and other amounts payable by Lessee under this Lease shall be and are hereby declared to be a valid and first lien upon Lessee's interest in the Premises and upon the rents, issues and profits in any manner arising or growing out of the same, and upon Lessee's interest in this Lease.
In the event of any breach or threatened breach by Lessee of any of the covenants, agreements, terms or conditions contained in this Lease, Lessor shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary proceedings and other remedies were not provided for in this Lease.
No receipt of monies by Lessor from Lessee after termination of this Lease or after the giving of any notice of termination of this Lease shall reinstate, continue or extend the Term or affect any notice theretofore given to Lessee, or operate as a waiver of Lessor's right to enforce the payment of rent and any other payments or charges herein reserved and agreed to be paid by Lessee then or thereafter falling due, or operate as a waiver of Lessor's right to recover possession of the Premises, it being agreed that after the service of notice to terminate this Lease or the commencement of suit or summary proceedings, or after final order or judgment for the possession of the Premises, Lessor may demand, receive and collect any monies due or thereafter falling due without, in any manner, affecting such notice, proceeding, order, suit or judgment, all such monies collected being deemed payments on account of the use and occupation of the Premises or at Lessor's election on account of Lessee's liability hereunder.
Any waiver of a default hereunder shall not be deemed a waiver of this agreement or of any subsequent default. Acquiescence in a default shall not operate as a waiver of such default, even though such acquiescence continues for an extended period of time.
Lessor's granting of any consent under this Lease, or Lessor's failure to object to any action taken by Lessee without Lessor's consent required under this Lease, shall not be deemed a waiver by Lessor of its rights to require such consent for any further similar act by Lessee. No waiver by Lessor of any other breach of the covenants of this Lease shall be construed, taken or held to be a waiver of any other breach or to be a waiver, acquiescence in or consent to any further or succeeding breach of the same covenant. None of Lessee's covenants under this Lease, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Lessor.
REMEDIES - CUMULATIVE:
No remedy conferred upon or reserved to Lessor under this Lease or under law shall be considered exclusive of any other remedy, but such remedies shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and every power and remedy given by this Lease to Lessor may be exercised from time to time and as often as occasion may arise or as may be deemed expedient, without precluding Lessor's simultaneous or later exercise of any or all other rights or remedies. No delay or omission of Lessor to exercise any right or power arising from any Default or Event of Default shall impair any such right to power or shall be construed to be a waiver of any such Default or Event of Default or acquiescence therein.
The headings of particular paragraphs and subparagraphs are inserted only for convenience and are not part of this Agreement and are not to act as a limitation on the scope of the particular paragraph to which the heading refers.
BINDING ON SUCCESSORS:
This Lease is binding upon and inures to the benefit of the heirs, successors in interest to the parties.
This document and any Attachments constitute the entire Agreement between the parties, and no promises or representations, other than those contained here and those implied by law, have been made by Lessor or Lessee. Any modifications to this Agreement must be in writing and signed by Lessor and Lessee.
The provisions of this Lease are severable and in the event any provision, clause, sentence, section or part thereof is held to be invalid, illegal, unconstitutional, inapplicable or unenforceable to any person or circumstances, such invalidity, illegality, unconstitutionality, inapplicability or unenforceability shall not affect or impair any of the remaining provisions, sentences, clauses, sections, parts of this Lease or their application to Tenant or other persons or circumstances. It is understood and agreed that the terms, conditions and covenants of this Lease would have been made by both parties if such invalid, illegal, unconstitutional, inapplicable or unenforceable provision, sentence, clause, section or part had not been included therein to the extent that portion of this agreement may be invalid by striking of certain words or phrases, such words or phrases shall be deemed to be stricken and the remainder of the provisions and the remainder of the other portions of this Lease agreement shall remain in full force and effect. It is further agreed that this Lease may be executed in counterparts, each of which when considered together shall constitute the original contract.
LESSEE AS CORPORATE ENTITY:
Each person executing this Lease represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of the corporation. Those persons further represent that the terms of this Lease are binding upon the corporation.
BY SIGNING BELOW, LESSOR AND LESSEE AGREE TO AND ACCEPT THE TERMS OF THIS COMMERCIAL LEASE AGREEMENT AND LESSEE ACKNOWLEDGES RECEIPT OF AN EXECUTED COPY OF THIS LEASE.
COMMODITY EXPRESS TRANSPORTATION, INC. OF SOUTH CAROLINA
Printed name: _________________________________
COMMODITY EXPRESS TRANSPORTATION, INC. OF DELAWARE
Printed name: __________________________________
Printed name: __________________________________
Commodity Express Transportation, Inc. - TPS Logistics, Inc. Agreement
This Agreement is entered into this 1st day of March, 2005, by and between Commodity Express Transportation, Inc. (hereinafter referred to as "CARRIER") a Delaware Corporation and TPS Logistics, Inc. (hereinafter referred to as "BROKER") a South Carolina Corporation.
WHEREAS, BROKER, to satisfy Amcor PET Packaging (Broker's Customer) transportation needs desires to engage CARRIER as its exclusive carrier to perform all of BROKER's transportation requirements described in the TPS Logistics, Inc. - Amcor PET Packaging logistics agreement ,within the limit of the CARRIER's operating authority according to this Agreement terms and conditions and CARRIER desires to perform such transportation; and
WHEREAS, this agreement is being completed and executedin accordance with the mutual agreement between CARRIER, BROKER and various other parties, dated March 21, 2005.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:
It is agreed that there are no oral representations, agreements, or understandings affecting this instrument and that any future representation, agreements, understandings or waivers to be binding upon the parties hereto, must be reduced to writing. Either party's failure strictly to enforce any provisions of this Agreement shall not be construed as a waiver or modification thereof excusing the other party from performance.
If any provision of this Agreement is found to be unlawful or unenforceable for any reason, such provision shall be severable from this Agreement, and all other provisions shall be binding upon the parties and shall remain in effect.
CARRIER: Commodity Express Transportation, Inc. 903 Clint Moore Road Boca Raton, Florida 33487
BROKER: TPS Logistics, Inc. 354 South Chimney Lane Columbia, South Carolina 29209
In Witness Whereof, the parties hereto have caused this Agreement to be executed in their respective names by their duly authorized representatives as of the date first above written.
BROKER: TPS Logistics, Inc.
CARRIER: Commodity Express Transportation, Inc.
CONSULTING AGREEMENT (the "Agreement") dated as of the 21st day of March 2005, between COMMODITY EXPRESS TRANSPORTATION, INC., a Delaware Corporation ("Company") and STOKES LOGISTICS CONSULTING, LLC, a South Carolina limited liability company ("Consultant").
R E C I T A L S:
A. Company engages in the business of motor carriage (the "Business");
B. Company desires to engage Consultant to provide the services hereinafter described relating to the Business;
C. Consultant acknowledges that it has the technical knowledge and business background and experience to undertake its duties hereunder and will diligently and faithfully render the services requested by Company; and
D. This Agreement is being entered into in conjunction with the Company's acquisition of substantially all of the assets of Commodity Express Transportation, a South Carolina corporation, pursuant to the terms of a Mutual Agreement dated March 21st, 2005 ("Mutual Agreement").
NOW, THEREFORE, in consideration of the terms and the mutual undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed as follows:
(a) Maintaining and building business relationships with Amcor Pet
(b) Maintaining and building business relationships with TPS Logistics, Inc.
(c) Such other matters as may be requested by the Chief Executive Officer or Board of Directors of Company and agreed to by Consultant.
(a) In connection with this Agreement, Consultant may gain access to Confidential Information (as hereinafter defined) of Company and/or its Affiliates, including but not limited to Power2Ship, Inc., a Nevada corporation ("P2S") (collectively, "Affiliates"). Confidential Information includes information communicated orally, in writing, by electronic or magnetic media, by visual observation, or by other means, and may be marked confidential or proprietary, or bear a marking of like import, or which Company or any of its Affiliates state to be Confidential or proprietary, or which would logically be considered confidential or proprietary under circumstances of its disclosure known to Consultant.
(b) Consultant acknowledges and understands that (i) Confidential Information provides Company and its Affiliates with a competitive advantage (or that could be used to the disadvantage of Company and its Affiliates by a competitor), (ii) Company and its Affiliates have a continuing interest in maintaining the confidentiality of Confidential Information and (iii) Company and its Affiliates have a compelling business interest in preventing unfair competition stemming from the use or disclosure of Confidential Information. Moreover, Consultant acknowledges that clients of Company and/or its Affiliates entrust Company and its Affiliates with responsibility for acquiring knowledge relating to aspects of their clients' businesses, with the expectation that Company and its Affiliates will hold all such knowledge, including in some cases the fact that they are doing business with Company and its Affiliates, and the specific transactions in which they are engaged, in the strictest confidence ("Client Confidences").
(c) For purposes hereof, "Confidential Information" includes, but is not limited to information pertaining to business plans, technology, intellectual property, joint venture agreements, licensing agreements, financial information, contracts, customers, Client Confidences, employee identities and contact information, products, trade secrets, specifications, designs, plans, drawings, software, data, prototypes, processes, methods, research, development or other information relating to the business activities and operations of Company and/or its Affiliates.
(d) Consultant agrees to keep Confidential Information confidential and, except as authorized by Company or any of its Affiliates, in writing, Consultant shall not, directly or indirectly, use Confidential Information for any reason except to perform its obligations under this Agreement. No other rights or licenses, to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted under this Agreement or by the conveying of Confidential Information to Consultant.
(e) Consultant shall use Confidential Information only for purposes of performing under this Agreement. In the event the performance of the Services requires Consultant to disclose Confidential Information to any employee, agent, representative or other third person, disclosure shall be made only on an "as needed" basis and Consultant shall advise those persons who require access to the Confidential Information of their obligations with respect thereto. Further, Consultant shall copy Confidential Information only as necessary, and ensure that all confidentiality notices are reproduced in full on such copies.
(f) The restrictions in subsection (d) of this Section shall not apply to any Confidential Information if Consultant can demonstrate that the Confidential Information:
(i) is or becomes available to the public through no breach of this Agreement;
(ii) was previously known by Consultant without any obligation to hold it in confidence;
(iii) is received from a third party free to disclose such information without restriction;
(iv) is independently developed by Consultant without the use of the Confidential Information;
(v) is approved for release by written authorization of Company;
(vi) is required by law or regulation to be disclosed, but only to the extent and for the purposes of such required disclosure; or
(vii) is disclosed in response to a valid order of a court or lawful request of a governmental agency, but only to the extent of and for the purposes of such order or request, provided that Consultant notifies Company of the order or request ten days prior to disclosure and permits Company and/or its Affiliate to seek an appropriate protective order.
(a) hire, or attempt to hire for employment, any person who is or was an employee of Company or any of its Affiliates within the twelve month period prior to the date of termination of this Agreement, or attempt to influence any such person to terminate its employment by Company or any such Affiliate; or
(b) in any other manner interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between Company and its Affiliates, on the one hand, and any of their respective employees, on the other hand, or disparage the business or reputation of Company or its Affiliates to any such persons.
(c) solicit, service or accept any actual or prospective accounts, clients or customers from Company or its Affiliates who were such at any time during the term of this Agreement;
(d) influence or attempt, directly or indirectly to influence any of the accounts, customers or clients referred to in Subsection 7(c) to transfer their business or patronage from Company or any of its Affiliates to any other person or company engaged in a similar business;
(e) assist any person or company soliciting, servicing or accepting any of the accounts, customers or clients referred to in Subsection 7(c); or
(f) in any other manner interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between Company or any of its Affiliates, on the one hand, and any of the customers or clients referred to in Subsection 7(c), on the other hand, or any other person, or disparage the business or reputation of Company or any of its Affiliates to any such person.
(a) Consultant hereby represents and warrants to Company that (i) Consultant has the full, complete and entire corporate right, power and authority to enter into this Agreement, (ii) the execution of this Agreement by Consultant and the performance of Consultant's Services hereunder will not, directly or indirectly, violate, or be a breach of, any agreement, law, rule, regulation, order, commitment or responsibility of any kind, (iii) this Agreement contains the valid and binding obligations of Consultant and (iv) Consultant is not, directly or indirectly, in breach of any confidentiality agreement or covenant not to compete to which it is a party.
(b) Consultant will not use in the performance of its responsibilities under this Agreement any confidential or proprietary information or trade secrets of any other person or entity.
(c) Consultant has not entered into and will not enter into any agreement (whether oral or written) in conflict with this Agreement.
(d) Consultant will promptly advise Company of any potential conflict of interest that may arise during his service as a consultant to Company, and will withdraw from any activity upon request when Company, in its sole discretion, deems such withdrawal necessary or desirable to avoid any actual or potential conflict of interest. Consultant and Company acknowledge and agree that W.A. Stokes will be performing services for TPS Logistics, Inc. and Commodity Express Transportation, Incorporated of South Carolina and that such performance of services, in and of itself, will not present a conflict of interest.
(e) Consultant shall execute and deliver to Company such Non-Disclosure Agreements and/or Business Ethics and related policies as are established from time-to-time by Company, and are generally applicable to Company's consultants, so long as such do not broaden or disturb the scope of legal matters addressed in this Agreement.
(f) In the performance of its duties hereunder, Consultant shall, at all times:
(i) observe the strictest rules of professional, technical and commercial ethics;
(ii) comply with all applicable laws, rules and regulations, including those of the Securities and Exchange Commission and each other regulatory body with jurisdiction over the Company and its operations; and
(iii) hold and maintain all licenses and permits required in order for Consultant to perform his responsibilities under this Agreement and receive the compensation to be paid hereunder.
(g) In the performance of his duties hereunder, Consultant shall not:
(i) divulge Confidential Information in violation of this Agreement;
(ii) hire, fire, discipline or reprimand any employee of Company or any of its Affiliates;
(iii) enter into any written or oral contract, agreement or understanding with any person, binding Company and/or committing the assets, funds or other resources of Company or any of its Affiliates; or
(iv) directly or indirectly buy, sell or otherwise engage in trading in the securities of Company, except as may expressly be permitted by Company, in writing.
(h) Consultant has and will continue to truthfully disclose to Company the following matters, whether occurring at any time preceding the date of this Agreement or at any time during the term of this Agreement:
(i) any criminal complaint, indictment or criminal proceeding in which Consultant, or any officer, director or employee of Consultant, is named as a defendant;
(ii) any allegation, investigation, or proceeding, whether administrative, civil or criminal, against Consultant, or any officer, director or employee of Consultant, by any licensing authority or industry association;
(iii) Consultant's, or any officer, director or employee of Consultant's, violation or alleged violation of any confidentiality agreement or covenant not to compete to which it is a party; and
(iii) any allegation, investigation or proceeding, whether administrative, civil, or criminal, against Consultant, or any officer, director or employee of Consultant, for violating professional ethics or standards, or engaging in illegal, immoral or other misconduct (of any nature or degree), relating to the business conducted or to be conducted by the Company.
(a) Consultant, directly or indirectly through its employees, representatives or agents, engages in fraud or dishonesty perpetrated upon Company and/or any of its Affiliates;
(b) Consultant, directly or indirectly through its employees, representatives or agents, is convicted of a crime (other than a non-felony traffic offense);
(c) Consultant, directly or indirectly through its employees, representatives or agents, violates any law, rule or regulation of the Securities and Exchange Commission or any other regulatory body with jurisdiction over Company, its Affiliates and/ or their respective operations;
(d) Consultant, directly or indirectly through its employees, representatives or agents, discloses Confidential Information in violation of this Agreement;
(e) Consultant, directly or indirectly through its employees, representatives or agents, makes any material misrepresentation to any third party concerning Company or any of its Affiliates; and/or
(f) There occurs a material breach of the Mutual Agreement caused other than by the Company or P2S.
In the event that the Consultant is terminated during the term of this Agreement by the Company as provided for in Section 11 hereof, the Company shall pay the Consultant any earned but unpaid consulting fee to the Consultant through the final date of termination with the Company, and the Company shall have no further obligations to the Consultant.
Termination shall be without prejudice to the rights of a party to seek damages or other relief arising out of a breach of this Agreement.
(a) if to Consultant, to:
Stokes Logistics Consulting, LLC
354 South Chimney Ln.
Columbia, SC 29209
Attn: W.A. Stokes
Telephone No.: (803) 695-9200
(b) if to Company, to:
Commodity Express Transportation, Inc.
903 Clint Moore Road
Boca Raton, FL 33431
Attn: Richard Hersh, President Telephone No.: (561) 998-7557 Telecopy No.: (561) 998-7821
(a) This Agreement shall inure to the benefit of, and be binding upon, Company and Consultant and their respective successors and assigns. Consultant shall not assign or delegate the performance of any of its rights and/or obligations under this Agreement without the prior written consent of Company and any attempted assignment in violation of this Agreement shall be null and void.
(b) This Agreement constitutes the entire Agreement, representation and understanding of the parties hereto with respect to the subject matter hereof, and no amendment or modification hereof shall be valid or binding unless made in writing and signed by the parties hereto.
(c) No waiver of any provision of this Agreement shall be valid unless the same is in writing and signed by the party against whom it is sought to be enforced. No waiver of any default or breach of this Agreement shall be deemed a continuing waiver or a waiver of any other breach or default.
(d) If any provision of this Agreement is invalid or unenforceable in any jurisdiction such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability, but the foregoing shall not render invalid or unenforceable in such jurisdiction the remainder of this Agreement or the remainder of such provision or affect the validity or unenforceability of any provision of this Agreement in any other jurisdiction.
(e) Any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted exclusively in a federal or state court of competent jurisdiction located in the County of Palm Beach, State of Florida. Each of the parties hereto hereby: (i) waives any objection which it may now have or hereafter have to the venue of any such suit, action or proceeding, and (ii) irrevocably consents to the jurisdiction of such courts in any such suit, action or proceeding. The parties further agree to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding and agree that service of process upon a party mailed by certified mail to such party's address shall be deemed in every respect effective service of process upon such party in any such suit, action or proceeding. Each of the parties waives any right to object to the jurisdiction, the venue of either of such courts, or to claim any such court is an inconvenient forum.
(f) Consultant acknowledges that prior to the execution of this Agreement it had full opportunity to consult with its own independent attorneys and advisors as deemed appropriate and Consultant fully understands the nature and scope of its rights and obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused this Agreement to be executed on the date first above written.
COMMODITY EXPRESS TRANSPORTATION, INC
STOKES LOGISTICS CONSULTING, LLC
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 21st day of March, 2005 between Commodity Express Transportation, Inc., a Delaware corporation with its principal place of business at 903 Clint Moore Road, Boca Raton FL 33431 (the "Company"), and W.A. Stokes, who resides at 354 South Chimney Lane, Columbia, SC 29209 (the "Employee"), together the parties (the "Parties").
WHEREAS, the parties hereto wish to enter into an employment agreement to employ the Employee as the President of the Company and to set forth certain additional agreements between the Employee and the Company.
NOW, THEREFORE, in consideration of the mutual covenants and representations contained herein, the parties hereto agree as follows:
(a) Without limiting the generality of the foregoing, the Employee covenants to perform the employment duties called for hereby in good faith, devoting substantially all business time, energies and abilities thereto and will not engage in any other business or commercial activities for any person or entity without the prior written consent of the Company. The Company hereby acknowledges and consents to Employee's devoting time and services associated with work for TPS Logistics, Inc., Stokes Logistics Consulting and Commodity Express Transportation, Incorporated of South Carolina during the Term of this Agreement.
(b) The Employee shall not take any action which would in any way adversely affect the reputation, standing or prospects of the Company or its parent or affiliated companies, including Power2Ship, Inc. and Power2Ship Holdings, Inc. (as defined below) or which would cause the Company to be in violation of applicable laws.
In addition, the following shall also constitute "Cause" hereunder for which the Company may terminate this Agreement without any cure period: (i) the violation by the Employee of any of the provisions of Section 6 hereafter, (ii) the commission by the Employee of an act of fraud or theft against the Company, CEB or any of its affiliates or subsidiaries, or the Employee's willful misfeasance or willful malfeasance in the performance of his duties to the Company or CEB, or (iii) the conviction of the Employee of (or the plea by the Employee of nolo contenderes to) any criminal act.
(e) All proprietary information and all of the Employee's interest in trade secrets, trademarks, computer programs, customer information, customer lists, employee lists, products, procedure, copyrights, patents and developments hereafter to the end of the period of employment hereunder developed by the Employee as a result of, or in connection with, his employment hereunder, shall belong to the Company; and without further compensation, but at the Company's expense, forthwith upon request of the Company, Employee shall execute any and all such assignments and other documents and take any and all such other action as Company may reasonably request in order to vest in Company all the Employee's right, title and interest in and to all of the aforesaid items, free and clear of liens, charges and encumbrances.
(g) For purposes of Section 6 hereof, the term "Company" shall also include CEB.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
/S/ W.A. Stokes ---------------------------------------- W.A. Stokes
COMMODITY EXPRESS TRANSPORTATION, INC.,
A DELAWARE CORPORATION
By: /S/ W.A. Stokes -------------------------------------- Richard Hersh, Chief Executive Officer
FEE ASSUMPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered as of the date set forth below, by and between W. A. STOKES, and individual resident of the sate of South Carolina ("Stokes"), COMMODITY EXPRESS TRANSPORTATION, INC., a South Carolina corporation ("Commodity"), POWER2SHIP, INC., a Nevada corporation ("Power2Ship" or the "Company"), CHAPMAN ASSOCIATES with headquarters offices in Schaumburg, IL ("Chapman") and T. V. ADAMS, and individual resident of the State of North Carolina ("Adams"), together the parties ("Parties").
In consideration of the mutual promises and obligation contained herein the undersigned Parties agree as follows:
Chapman and Stokes entered into an agreement dated April 23, 2004 whereby Chapman was retained on a non-exclusive basis to sell the assets of Commodity, and Chapman, pursuant to said agreement, facilitated an agreement between Commodity and Power2Ship whereby an indirect wholly-owned subsidiary of Power2Ship ("P2S Subsidiary") agreed to purchase certain assets of Commodity pursuant to the terms of a mutual agreement ("Mutual Agreement") and various other related agreements between Commodity, P2S, P2S Subsidiary and Stokes.
The Mutual Agreement between P2S Subsidiary and Commodity, and the various other agreements between Commodity, P2S, P2S Subsidiary and Stokes have been consummated on the date hereof. Accordingly, Chapman has satisfactorily fulfilled its obligations under its agreement with Commodity and is entitled to its specified commission in the amount of $100,000.
Adams is the Managing Director of Chapman. Chapman has assigned said commission to Adams. Chapman has taken all corporate action necessary, and has obtained all consents and approvals, for the assignment of said commission to Adams, and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, constitute the valid and binding obligation of Chapman, enforceable against Chapman to prove such assignment of the commission by Chapman to Adams.
Power2Ship hereby assumes from Commodity the obligation to pay Adams the earned commission of $100,000 and Adams hereby agrees to release Commodity from said commission obligation upon receipt of payment from Power2Ship.
In order to further facilitate the closing of the proposed transaction, Adams has further agreed with Power2Ship to accept from Power2Ship, at the sole discretion of Power2Ship, shares of its common stock ("Shares") and/or cash, or a combination thereof, with a total value as of the date hereof of $100,000 in full and complete satisfaction of this commission obligation, provided however, that any common stock conveyed to Adams hereunder shall be duly authorized and issued by Power2Ship in accordance with its charter and bylaws and, if not presently unrestricted and fully registered stock, shall have "piggyback" registration rights so that such shares shall be included in the shares of Powe2Ship to be registered in its next public offering pursuant to the federal securities laws and thereupon be fully registered and transferable. Any shares of Power2Ship issued to Adams hereunder shall be valued by calculating the median value between the closing bid and asked price for Power2Ship stock as traded on the OTCBB on the date hereof.
Adams understands that the shares are being acquired from Power2Ship in a transaction pursuant to an exemption from the registration requirements under the Securities Act of 1933, as amended ("Act") and, in connection herewith, makes the representations contained on the attached Exhibit A hereto.
IN WITNESS WHEREOF, the undersigned parties have executed this agreement as of March 21, 2005.
COMMODITY EXPRESS TRANSPORTATION, INC.
In connection with the receipt of the Shares, Adams hereby represents, warrants, covenants and agrees as set forth below.
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION AND QUALIFICATION UNDER THE ACT AND SUCH LAWS IS NOT REQUIRED"
(b) Any legend required by applicable state law.
(a) all officers and directors of the Company enter into similar agreements; and
(b) such market stand-off time period shall not exceed one hundred eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the securities covered thereby until the end of such period.
/s/ T.V. Adam ------------------------------------------ T. V. Adam /s/ T.V. Adam ------------------------------------------ (Signature)