--
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the period ended January 31, 1996
Commission File Number 33-7870-NY
Travel Ports of America, Inc.
New York 16-1128554
3495 Winton Place, Building C, Rochester, New York 14623
716-272-1810
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
[ X ] Yes [ ] No
Class Outstanding at January 31, 1996
Common Stock, Par Value
$.01 Per Share 5,239,124
TRAVEL PORTS OF AMERICA, INC.
INDEX
Page
PART I Financial Information
Balance Sheets, January 31, 1996 (unaudited) and
April 30, 1995..................................... 3
Statement of Income (unaudited), quarter and nine months
ended January 31, 1996 and 1995.................... 4
Statement of Cash Flows (unaudited), nine months
ended January 31, 1996 and 1995..................... 5
Notes to Financial Information........................... 6
Management's Discussion and Analysis of Financial
Condition and Results of Operations.................... 7
PART II Other Information
Index to Exhibits and Legal Proceedings.................. 10
Signatures............................................... 14
TRAVEL PORTS OF AMERICA, INC.
BALANCE SHEET
(UNAUDITED)
1/31/96 4/30/95
ASSETS
CURRENT ASSETS:
CASH AND EQUIVALENTS $ 1,794,024 $ 7,593,798
ACCOUNTS RECEIVABLE, LESS ALLOWANCE
FOR DOUBTFUL ACCOUNTS OF $234,824 AT
JANUARY 1996 AND $214,052
AT APRIL 1995 4,573,774 3,683,235
NOTES RECEIVABLE 48,690 332,655
INVENTORIES 5,567,062 5,790,823
PREPAID AND OTHER CURRENT ASSETS 886,250 532,904
DEFERRED TAXES - CURRENT 381,900 381,900
TOTAL CURRENT ASSETS 13,251,700 18,315,315
NOTES RECEIVABLE, DUE AFTER ONE YEAR 2,089,502 1,390,600
PROPERTY, PLANT AND EQUIPMENT, NET 33,365,256 27,052,462
COST IN EXCESS OF UNDERLYING NET ASSET
VALUE OF ACQUIRED COMPANIES 1,984,544 2,032,686
OTHER ASSETS, NET 2,443,458 2,579,747
$53,134,460 $51,370,810
LIABILITIES AND SHAREHOLDERS EQUITY
CURRENT LIABILITIES:
SHORT-TERM DEBT $ 643,000
CURRENT PORTION OF LONG-TERM DEBT 2,511,348 $ 2,360,015
ACCOUNTS PAYABLE 5,778,211 6,897,323
ACCOUNTS PAYABLE - AFFILIATE 1,005,050 597,100
INCOME TAXES PAYABLE 94,404
ACCRUED COMPENSATION 1,314,959 1,335,305
ACCRUED SALES AND FUEL TAX 1,612,165 1,047,649
ACCRUED EXPENSES AND OTHER
CURRENT LIABILITIES 1,032,905 1,057,679
TOTAL CURRENT LIABILITIES 13,992,042 13,295,071
LONG TERM DEBT 19,860,846 20,328,957
CONVERTIBLE SUBORDINATED DEBENTURES 4,650,000 4,650,000
DEFERRED INCOME TAXES 747,200 747,200
TOTAL LIABILITIES 39,250,088 39,021,228
SHAREHOLDERS EQUITY
COMMON STOCK, $.01 PAR VALUE
AUTHORIZED - 10,000,000 SHARES,
ISSUED AND OUTSTANDING AT JANUARY
1996 - 5,239,124 AND
APRIL 1995 - 5,209,924 52,391 52,099
ADDITIONAL PAID-IN CAPITAL 3,813,429 3,767,741
RETAINED EARNINGS 10,018,552 8,529,742
TOTAL SHAREHOLDERS EQUITY 13,884,372 12,349,582
$53,134,460 $51,370,810
TRAVEL PORTS OF AMERICA, INC.
STATEMENT OF INCOME
(UNAUDITED)
QUARTER ENDED NINE MONTHS ENDED
JANUARY 31 JANUARY 31
1996 1995 1996 1995
NET SALES AND
OPERATING REVENUE $40,168,832 $37,529,063 $117,915,138 $114,780,410
COST OF GOODS SOLD 30,646,792 28,282,146 88,898,743 85,662,334
GROSS PROFIT 9,522,040 9,246,917 29,016,395 29,118,076
OPERATING EXPENSE 7,310,596 7,231,905 21,914,881 22,222,029
GENERAL AND
ADMINISTRATIVE EXPENSE 1,217,027 991,434 3,082,690 2,764,722
INTEREST EXPENSE 632,778 624,205 1,920,437 1,623,175
OTHER INCOME, NET (76,041) (81,044) (468,823) (142,628)
9,084,360 8,766,500 26,449,185 26,467,298
INCOME BEFORE TAXES 437,680 480,417 2,567,210 2,650,778
PROVISION FOR TAXES
ON INCOME 170,500 193,500 1,078,400 1,088,500
NET INCOME $ 267,180 $ 286,917 $ 1,488,810 $ 1,562,278
PER SHARE DATA:
NET INCOME PER
SHARE - PRIMARY $0.05 $0.05 $0.28 $0.30
NET INCOME PER SHARE -
FULLY DILUTED $0.05 $0.05 $0.24 $0.29
WEIGHTED AVERAGE SHARES
OUTSTANDING -
PRIMARY 5,343,005 5,309,167 5,382,414 5,286,883
WEIGHTED AVERAGE SHARES
OUTSTANDING -
FULLY DILUTED 6,893,005 5,316,943 6,941,078 5,308,041
TRAVEL PORTS OF AMERICA, INC.
STATEMENT OF CASH FLOWS
(UNAUDITED)
NINE MONTHS ENDED JANUARY 31
1996 1995
OPERATING ACTIVITIES:
NET INCOME $1,488,810 1,562,278
DEPRECIATION AND AMORTIZATION 1,973,553 1,834,920
PROVISION FOR LOSSES ON
ACCOUNT RECEIVABLE 33,905 94,145
(GAIN) LOSS ON SALE OF ASSETS (213,681) 27,974
CHANGES IN OPERATING ASSETS
AND LIABILITIES -
ACCOUNTS RECEIVABLE (924,444) (518,621)
INVENTORIES 223,761 (736,623)
PREPAID AND OTHER CURRENT ASSETS (351,972) ( 60,203)
ACCOUNTS PAYABLE (711,162) 716,630
ACCRUED COMPENSATION (20,346) 338,077
ACCRUED SALES AND FUEL TAX 564,516 (443,749)
ACCRUED EXPENSES AND OTHER
CURRENT LIABILITIES (24,774) 82,704
CHANGES IN INCOME TAXES PAYABLE 94,404 89,987
CHANGES IN OTHER NON-CURRENT ASSETS 13,388 (117,550)
NET CASH PROVIDED BY
OPERATING ACTIVITIES 2,145,958 2,869,969
INVESTING ACTIVITIES:
EXPENDITURES FOR PROPERTY,
PLANT & EQUIPMENT (8,795,066) (2,072,388)
PROCEEDS FROM DISPOSITION OF PROPERTY,
PLANT AND EQUIPMENT 292,069 100,997
NET PROCEEDS RECEIVED ON
NOTES RECEIVABLE 185,063 61,107
NET CASH USED IN INVESTING
ACTIVITIES (8,317,934) (1,910,284)
FINANCING ACTIVITIES:
NET SHORT-TERM DEBT
BORROWING (PAYMENTS) 643,000 (1,752,000)
PRINCIPAL PAYMENTS ON
LONG-TERM DEBT (1,816,778) (7,202,364)
PROCEEDS FROM LONG-TERM BORROWING 1,500,000 10,500,000
PROCEEDS FROM CONVERTIBLE SUBORDINATED
DEBENTURES 2,150,000
PROCEEDS FROM EXERCISE OF
STOCK OPTIONS 45,980 40,020
NET CASH PROVIDED BY FINANCING
ACTIVITIES 372,202 3,735,656
NET (DECREASE) INCREASE IN CASH
AND EQUIVALENTS (5,799,774) 4,695,341
CASH AND EQUIVALENTS -
BEGINNING OF PERIOD 7,593,798 1,177,400
CASH AND EQUIVALENTS - END OF PERIOD $1,794,024 $5,872,741
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
CASH PAID DURING THE PERIOD:
INTEREST PAID $1,928,059 $1,494,615
INCOME TAXES PAID $ 935,985 $1,046,991
TRAVEL PORTS OF AMERICA, INC.
NOTES TO FINANCIAL INFORMATION
JANUARY 31, 1996
NOTE 1 BASIS OF PRESENTATION
The unaudited financial information has been prepared in
accordance with the Summary of Accounting Policies of the Company
as outlined in Form 10-K filed for the year ended April 30, 1995,
and should be read in conjunction with the Notes to Financial
Statements appearing therein. In the opinion of management, the
unaudited financial information contains all adjustments
(consisting only of normal recurring adjustments) necessary to
present fairly the Company's financial position as of January 31,
1996 and April 30, 1995, and for the three months and nine months
ended January 31, 1996 and 1995. The financial information is
based in part on estimates and has not been audited by
independent accountants. The annual statements will be audited by
Price Waterhouse LLP.
NOTE 2 INVENTORIES
Major classifications of inventories are as follows:
January 31, 1996 April 30, 1995
At first-in, first-out (FIFO) cost:
Petroleum Products $1,512,040 $1,467,754
Store Merchandise 1,729,460 1,708,595
Parts for repairs and tires 2,000,279 2,138,790
Other 325,283 475,684
$5,567,062 $5,790,823
NOTE 3 EARNINGS PER SHARE
Primary earnings per share is computed by dividing net income by
the weighted average number of common, and when applicable,
common equivalent shares outstanding during the period. Fully
diluted earnings per share include the dilutive impact of common
equivalent shares and the convertible debentures.
NOTE 4 FINANCING AGREEMENTS
The Companys primary lending institution has renewed its
commitment for the Companys existing line of credit until August
31, 1996. The line of credit is limited to the lesser of
$2,750,000 or the sum of 80% of the Companys accounts receivable
under 90 days old, plus 45% of the Companys inventory.
On December 21, 1995, the Company entered into a construction
line of credit with a maximum amount of $3,500,000. Upon
completion of the Harborcreek project, the construction line will
convert into a permanent mortgage for the lesser of 80% of the
appraised value or $6,000,000. The mortgage will be set up with
monthly payments of principal and interest, amortized over a 15
year period, with a maturity of 10 years from the conversion
date. Interest is at prime plus 1/2%. At the time of conversion
to permanent financing, the Company has the option to choose a
fixed rate option. A conversion fee of 1/2% will be due and
payable by the Company when the construction line is converted to
permanent financing.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS:
Third Quarter ended January 31, 1996 and 1995
Sales from operations were $40,168,832 for the third quarter of
fiscal 1996, up $2,639,769, or 7%, from the third quarter of last
year. In comparing to last year, this year the Company did not
have the facility in Fairplay, South Carolina and a small
restaurant in Phelps, New York. The impact from the disposition
of these two locations was a $500,000 reduction in sales as
compared to the third quarter of 1995. In addition, a customer
who previously purchased diesel fuel directly from the Company is
now storing its own fuel at certain of the Companys facilities
and is charged a pumping fee. There is no impact on gross profit
but sales declined $292,000. After accounting for the change in
locations and the diesel sales to this customer, the increase in
sales for same units was approximately $3,431,000 or 9.1%.
Gross profit for the third quarter was $9,522,040, an increase of
$275,123, or 3%, from the prior year. The two locations the
Company no longer has accounted for a decline in gross profit of
$149,000. During the quarter the Company exercised its option to
cancel a fixed price contract for diesel fuel. As a result of
this, the Company recorded a gain of $412,000 which is included
in cost of goods sold. The contract was to run until August 2003
and amounted to less than 3% of the Companys annual usage of
diesel fuel.
Operating expenses of $7,310,596 for the third quarter were
$78,691, or 1.1% more than last year. Increases in utilities,
general supplies, repairs and maintenance from the cold weather
and snow more than offset the decrease of $224,000 from the two
locations the Company no longer has.
General and administrative expenses for the quarter of $1,217,027
increased $225,593 or 22.8% from last year. The increases were in
salary and wages, employee training, travel and entertainment,
advertising and bonus provision.
On March 1, 1996, the Company took over the operation of the
Baltimore Port Travel Plaza in Baltimore, Maryland. The facility
will be leased from the previous owner.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
The Companys cash position decreased by $5,799,774 to $1,794,024
during the nine months ended January 31, 1996. Accounts
receivable increased $924,444 from greater sales activity.
Accounts payable decreased $711,162 as a result of payments on
capital expenditures. Accrued sales and fuel taxes increased
$564,516 due to amount and timing of tax payments. Overall
operating activities for the nine months ended January 31, 1996,
provided $2,145,958 in cash compared to last year's $2,869,969.
Investing activities resulted in a net use of $8,317,934. Capital
expenditures during the first nine months of 1996 were
$8,795,066. The renovation projects and the construction of a
travel plaza on land owned by the Company in Harborcreek,
Pennsylvania accounted for these expenditures. The construction
of the Harborcreek facility has been funded to date primarily
from operations and the existing cash position. The Company has
arranged with its primary lender interim and permanent financing
of the project (see below). Proceeds from notes receivable
provided cash of $185,063 and $292,069 was received from the sale
of properties and equipment.
Cash provided by financing activities for the first nine months
of 1996 was $372,202. An advance of $1,500,000 against the
construction line and $643,000 from the line of credit provided
funding for some of the capital expenditures. Principal payments
on long term debt amounted to $1,816,778. Last year a refinancing
and the initial sale of the subordinated debentures provided
$3,735,656 after repayment of principal.
The Companys primary lending institution has renewed its
commitment for the Companys existing line of credit until August
31, 1996. The line of credit is limited to the lesser of
$2,750,000 or the sum of 80% of the Companys accounts receivable
under 90 days old, plus 45% of the Companys inventory. As of
January 31, 1996, the Company has utilized $200,000 of its
available line of credit as collateral for various letters of
credit.
On December 21, 1995, the Company entered into a construction
line of credit with a maximum amount of $3,500,000. Upon
completion of the Harborcreek project, the construction line will
convert into a permanent mortgage for the lesser of 80% of the
appraised value or $6,000,000. The mortgage will be set up with
monthly payments of principal and interest, amortized over a 15
year period, with a maturity of 10 years from the conversion
date. Interest is at prime plus 1/2%. At the time of conversion
to permanent financing, the Company has the option to choose a
fixed rate option. A conversion fee of 1/2% will be due and
payable by the Company when the construction line is converted to
permanent financing.
Authorized, but unissued stock is available for financing needs;
however, there are no current plans to use this source.
TRAVEL PORTS OF AMERICA, INC.
PART II -- OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
United Petroleum Marketing Inc. and United Petroleum Realty
Corp., a petroleum retailer and real estate company, initiated a
suit against the Company alleging damages of $2,395,000, claiming
violations of an Agreement of Sale and various agreements signed
in connection with the Agreement of Sale of twenty-three gasoline
stations to the plaintiff in 1987. At the time of closing, there
was an escrow set up with respect to several stations. The escrow
is now closed, two of the stations were conveyed back to the
Company and United Petroleum received the sum of $264,793, which
will be credited to the Company should there be any recovery in
the Company's action discussed in the next paragraph. The claim
is for the entire purchase price. The plaintiff is currently
operating all the stations and has not requested a rescission of
the Agreement. The largest part of the plaintiff's claim relates
to alleged misrepresentation of fuel sold at the various
stations. As a result of discovery and investigation, the Company
is vigorously defending the claim and believes it has a defense
to substantially all of the claims.
The Company has filed a suit against United Petroleum Realty
Corp. and United Petroleum Marketing, Inc., seeking reimbursement
for gasoline taxes paid to the Commonwealth of Pennsylvania by
the Company that the Company claims were the responsibility of
the defendants in connection with the purchase of the stations.
The Company is asking for damages in excess of $50,000 and
punitive damages in excess of $50,000. The matters discussed in
this and the preceding paragraph may be consolidated for trial.
The Company is not presently a party to any other litigation
(i) that is not covered by insurance or (ii) which singly or in
the aggregate would have a material adverse effect on the
Company's financial condition and results of operations, and
management has no knowledge that any other litigation has been
threatened.
Item 2. CHANGES IN SECURITIES
None
Item 3. DEFAULTS UPON SENIOR SECURITIES
None
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
Item 5. OTHER INFORMATION
On November 17, 1995, the Securities and Exchange Commission
declared effective a Registration Statement filed by the Company
on Form S-3 for the underlying shares related to the convertible
debentures and warrants issued in January and February 1995. The
Company will not receive any additional cash if and when the
shares covered by the Registration Statement are sold or upon the
conversion of the debentures related to most of the shares.
However, the Company could receive up to $334,800 in cash upon
the exercise of warrants related to some of the shares.
On March 1, 1996, the Company took over the operation of
Baltimore Port Travel Plaza in Baltimore, Maryland. The facility
will be leased from the previous owner. The leases are set forth
beginning on page 69 of this report.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
(2) Plan of acquisition, reorganization, agreement,
liquidation, or succession
Not applicable
(3) Articles of Incorporation and By-Laws
Exhibit 3-a and exhibit 3-b to the Company's
Registration Statement on Form S-18, File No. 33-7870-NY are
incorporated herein by reference with respect to the
Restated Certificate of Incorporation and By-Laws of the
Company.
Certificate of Amendment of Certificate of
Incorporation changing the name of the Corporation, is
incorporated herein by reference to Exhibit 3-c of the
Companys report of Form 10-K dated July 27, 1993.
(4) Instruments defining the rights of security holders,
including indentures
Exhibit 4-a, Form of Common Stock Certificate, to the
Company's Registration Statement on Form S-18, File No. 33-
7870-NY is incorporated herein by reference with respect to
instruments defining the rights of security holders.
Exhibit 4-c, Form of Indenture dated as of January 24,
1995, between Travel Ports of America, Inc. and American
Stock Transfer and Trust Company, as Trustee, with respect
to up to $5,000,000 principal amount of 8.5% Convertible
Senior Subordinated Debentures due January 15, 2005 is
incorporated by reference to Exhibit 4-c to the Companys
Current Report on Form 8-K dated February 15, 1995.
Exhibit 4-d, Form of Warrant to purchase Common Stock
is incorporated by reference to Exhibit 4-d to the Companys
Current Report on Form 8-K dated February 15, 1995.
(10) Material Contracts
Exhibit 10.14, Restated and Amended Credit Agreement,
Revolving Line Note and Term Loan Note, all dated December
21, 1995, executed and delivered by the Company to Fleet
Bank is set forth on page 16 of this report.
(11) Statement re: computation of earnings per share
Computation of earnings per share is set forth in
Exhibit(11)on page 12 of this report.
(15) Letter re: unaudited interim financial information
Not applicable
(18) Letter re: change in accounting principals
Not applicable
(19) Previously unfiled documents
None
(20) Report furnished to security holders
Not applicable
(23) Published report regarding matters submitted to vote of
security holders
None
(24) Consents of experts and counsel
Not applicable
(25) Power of attorney
None
(26) Additional exhibits
None
(27) Supplemental Financial Information
Exhibit(27)on page 15 of this report.
(b) REPORT ON FORM 8-K
None
EXHIBIT (11)
COMPUTATION OF PRIMARY EARNINGS PER SHARE
FOR THE QUARTER ENDED JANUARY 31, 1996
Net income per share was computed by dividing net income by the
weighted average number of common shares outstanding and common
stock equivalents.
Total Options Average Average
Qtr. Ended Below Market Option Price Market Price Shares
1/31/96 388,548 $1.89 $2.58 103,881
Average number of shares outstanding 5,239,124
5,343,005
Net income per common and common equivalent shares $.05
COMPUTATION OF FULLY DILUTED EARNINGS PER SHARE
FOR THE QUARTER ENDED JANUARY 31, 1996
Net income per share was computed by dividing net income by the
weighted average number of common shares outstanding, common
stock equivalents, and the assumed conversion of the convertible
debentures.
Total Options
and Warrants Average
Qtr. Ended Below Market Exercise Price Market Price * Shares
1/31/96 388,548 $1.89 $2.58 103,881
Additional shares due to assumed exercise of convertible
debentures 1,550,000
Average number of shares outstanding 5,239,124
6,893,005
Net income for quarter ended 7/31/95 $268,180
Interest on convertible debentures, net of tax 59,287
$326,467
Net income per common and common equivalent shares - fully
diluted $.05
COMPUTATION OF PRIMARY EARNINGS PER SHARE
FOR THE NINE MONTHS ENDED JANUARY 31, 1996
Net income per share was computed by dividing net income by the
weighted average number of common shares outstanding and common
stock equivalents.
Total Options Average Average
Qtr. Ended Below Market Option Price Market Price Shares
7/31/95 420,738 $1.87 $2.65 123,847
10/31/95 493,738 $2.19 $3.71 202,142
1/31/96 388,548 $1.89 $2.58 103,881
Total for Three Quarters 429,870
Average common stock equivalents outstanding during
nine months ended January 31, 1996 143,290
Average number of shares outstanding 5,239,124
5,382,414
Net income per common and common equivalent shares $.28
COMPUTATION OF FULLY DILUTED EARNINGS PER SHARE
FOR THE NINE MONTHS ENDED JANUARY 31, 1996
Net income per share was computed by dividing net income by the
weighted average number of common shares outstanding, common
stock equivalents, and the assumed conversion of the convertible
debentures.
Total Options
and Warrants Average
Qtr. Ended Below Market Exercise Price Market Price * Shares
7/31/95 420,738 $1.87 $2.875 147,082
10/31/95 586,738 $2.41 $3.71 204,899
1/31/96 388,548 $1.89 $2.58 103,881
Total for Two Quarters 455,862
Average common stock equivalents outstanding during
nine months ended January 31, 1996 151,954
Additional shares due to assumed exercise of convertible
debentures 1,550,000
Average number of shares outstanding 5,239,124
6,941,078
Net income for nine months ended 1/31/96 $1,488,810
Interest on convertible debentures, net of tax 177,863
$1,666,673
Net income per common and common equivalent shares - fully
diluted $.24
* Amount reflects higher of average or period end market price.
SIGNATURES
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 thereunto duly authorized.
TRAVEL PORTS OF AMERICA, INC.
Date: March 8, 1996 s/ John M. Holahan
John M. Holahan, President
Date: March 8, 1996 s/ William Burslem III
William Burslem III
Vice President
Exhibit (27)
Cash and cash items $ 1,794,024
Notes and accounts receivable - trade $ 4,573,774
Allowance for doubtful accounts $ 234,824
Inventory $ 5,567,062
Total current assets $ 13,251,700
Property, plant and equipment $ 52,970,747
Accumulated depreciation $ 19,605,491
Total assets $ 53,134,460
Total current liabilities $ 13,992,042
Bonds, mortgages and similar debt $ 27,022,193
Common stock $ 52,391
Other stockholders equity $ 13,831,981
Total liabilities and stockholders equity $ 53,134,460
Total net sales and operating revenue $ 117,915,138
Total costs and expenses applicable to sales
and revenues $ 88,898,743
Other costs and expenses $ 24,997,571
Provision for doubtful accounts and notes $ 33,905
Interest and amortization of debt discount $ 1,920,437
Other income, net $ (468,823)
Income before taxes and other items $ 2,567,210
Income tax expense $ 1,078,400
Net income or loss $ 1,488,810
Earnings per share - primary $ .28
Earnings per share - fully diluted $ .24
CREDIT AGREEMENT AMENDMENT NUMBER 1
THIS CREDIT AGREEMENT AMENDMENT NUMBER 1 is made as of
September ___, 1995 by and between FLEET BANK, a New York bank
and trust company and successor by merger to Norstar Bank, N.A.
and Fleet Bank of New York, with offices at One East Avenue,
Rochester, New York 14638 (called the "Bank") and TRAVEL PORTS OF
AMERICA, INC., formerly known as Roadway Motor Plazas, Inc., a
New York corporation with offices now at 3495 Winton Place,
Building C, Rochester, New York 14623 (the "Borrower").
WHEREAS, the Bank and the Borrower entered into a
Credit Agreement dated June __, 1988, which Credit Agreement was
amended and restated in a Restated and Amended Credit Agreement
dated January 28, 1991, which Restated and Amended Credit
Agreement was also been further amended, and which Credit
Agreement was further amended and restated in a Restated and
Amended Credit Agreement dated June 30, 1994, and which Credit
Agreement was further amended and restated in a Restated and
Amended Credit Agreement dated September 29, 1994 (collectively,
the "1988 Agreement"), and
WHEREAS, the parties desire to further amend the 1988
Agreement,
NOW THEREFORE, the Bank and the Borrower agree:
1. Article I.B. of the 1988 Agreement is hereby
amended to read in its entirety as follows:
B. Revolving Line of Credit. The Bank hereby
establishes a revolving line of credit (the "Revolving
Line") in the maximum principal amount of Two Million Seven
Hundred Fifty Thousand Dollars ($2,750,000). The Revolving
Line replaces and supersedes existing revolving lines
established by the Bank for Borrower.
A Revolving Line Note (the "Revolving Line Note")
in substantially the form of Exhibit B hereto will evidence
the Revolving Line.
All outstanding principal amounts under the
Revolving Line shall bear interest until paid at a rate per
annum equal to the "Prime Rate" plus one-half percentage
point (1/2%) calculated based on actual days elapsed in a
year of 360 days, but never exceeding the maximum rate
allowed by law. All changes in the interest rate due to a
change in the Prime Rate shall take place automatically and
without notice to Borrower as of the effective date of the
change in the Prime Rate. For purposes of this Agreement,
the "Prime Rate" is the Bank's rate of interest stated by
the Bank from time to time to be its prime rate
(irrespective of any rate charged to any customer in any
actual transaction).
The Borrower shall make a payment of all interest
accrued under the Revolving Line Note on the first day of
each month. The Borrower shall make principal payments
sufficient to assure that the aggregate principal amount
outstanding under the Revolving Line never exceeds the
amount then available under the Borrowing Formula described
below, and also sufficient to assure that there is no
outstanding principal under the Revolving Line for at least
thirty (30) consecutive days between each September 1 and
the next succeeding August 31. All remaining principal and
interest shall be due and payable in full on the date of
expiration of the Revolving Line.
The Revolving Line shall terminate on August 31,
1996 unless extended in writing in the sole discretion of
and on such terms as are acceptable to the Bank, and no
further advances shall be made thereafter.
The Borrower may borrow, repay, and reborrow under
the Revolving Line so long as no Event of Default hereunder
has occurred and the aggregate principal amount outstanding
at any one time does not exceed the lesser of $2,750,000 or
the sum then available according to the following formula
(the "Borrowing Formula"): (a) eighty percent (80%) of all
Borrower eligible accounts receivable as defined below
("Eligible Accounts") plus (b) forty-five percent (45%) of
all Borrower eligible inventories as defined below
("Eligible Inventories").
Eligible accounts receivable are defined as: (i)
all trade accounts receivable less than 90 days beyond date
of invoice plus (ii) the less than 90 days beyond date of
invoice portion of receivables from one customer of which at
least 50% of the outstanding amount is less than 90 days
beyond date of invoice, minus all (iii) marginal accounts
receivable, contra accounts receivable, affiliate company
accounts receivable, foreign accounts receivable, employee
accounts receivable, bill and hold accounts receivable (i.e.
accounts relating to goods not yet shipped but invoiced),
uncollectible accounts receivable, accounts receivable
arising from progressive billings (ie. accounts receivable
from billings for work performed on a partially completed
contract), accounts receivable arising from guaranteed sales
with buy-back provisions (ie. accounts receivable arising
from sales in which the Borrower is obligated to repurchase
inventory or merchandise sold to customers), and accounts
receivable of companies or businesses actually known to the
Bank to be deteriorating. In the event that total accounts
receivable from any payor represent more than 20% of the
Borrower's total accounts receivable, the Bank reserves the
right in its sole discretion to delete those accounts receiv
able in excess of 20% of total accounts from eligible
accounts receivable unless the Borrower has provided to the
Bank sufficient information regarding the obligor on the
accounts for the Bank to make a determination as to the
creditworthiness of that obligor.
Eligible inventories are defined as all inven
tories owned by the Borrower valued at cost minus all perish
able or non-saleable inventories.
Eligible accounts receivable and eligible
inventories must arise from the Borrower's ordinary course
of business as it exists on the date hereof. The Bank
reserves the right in its sole discretion to modify the
borrowing formula or make changes in the definitions of
eligible accounts or eligible inventories, or to delete
certain accounts or inventories from the borrowing formula,
all in the event of a material adverse change in the
collateral or its collectibility.
The amount available under the Revolving Line
shall be reduced by the aggregate amount of outstanding
Letters of Credit issued by the Bank for the account of the
Borrower. Letters of Credit will be issued at the request of
the Borrower in the discretion of, and upon terms acceptable
to, the Bank. The Borrower shall pay to the Bank a non-
refundable commission of one and one-half percent (1.5%) per
annum with respect to the face amount of each respective
letter of credit on the date such letter of credit is
issued.
Borrower agrees to allow the Bank complete access
to all books and records of the Borrower upon reasonable
request. Borrower agrees to submit information which the
Bank may reasonably request from time to time in connection
with the Revolving Line. The Borrower will provide to the
Bank such borrowing reconciliation reports, agings,
listings, and other reports and information as the Bank
requires in connection with the Revolving Line including
without limitation monthly accounts agings and inventory
reports no later than the 30th day of each month.
2. Exhibit B to the 1988 Agreement is hereby amended
to read in its entirety as set forth in Exhibit B to this Amendment.
3. Except as expressly modified herein, all other
terms of the 1988 Agreement shall remain in full force and
effect. All references in documents, mortgages, instruments, and
other agreements of any kind to the 1988 Agreement shall be
deemed to be references to the 1988 Agreement as modified by this
Amendment.
IN WITNESS WHEREOF, the parties have caused this
Amendment to be executed by their duly authorized officers as of
the date first above written.
FLEET BANK TRAVEL PORTS OF AMERICA, INC.
By: _____________________ By: __________________________
Title: __________________ By: __________________________
EXHIBIT B
REVOLVING LINE NOTE
$2,750,000 September __, 1995
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC.
("Borrower") hereby promises to pay to the order of FLEET BANK
("Bank"), the principal sum of Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000) or if less, the aggregate unpaid
principal amount of all advances made by Bank of Borrower. The
Bank shall maintain a record of amounts of principal and interest
payable by Borrower from time to time, and the records of the
Bank maintained in the ordinary course of business shall be prima
facie evidence of the existence and amounts of Borrower's
obligations recorded therein. In the event of transfer of this
Revolving Line Note, or if the Bank shall otherwise deem it
appropriate, the Borrower hereby authorizes the Bank to endorse
on this Revolving Line Note the amount of advances and payments
to reflect the principal balance outstanding from time to time.
The Bank may send written confirmation of advances to Borrower
but any failure to do so shall not relieve the Borrower of the
obligation to repay any advance.
This Revolving Line Note shall bear interest at a rate
equal to the "Prime Rate" plus one-half percentage point (1/2%)
calculated based on actual days elapsed in a year of 360 days.
All changes in the interest rate due to a change in the Prime
Rate shall take place automatically and without notice to
Borrower as of the effective date of the change in the Prime
Rate. For purposes of this Agreement, the "Prime Rate" is the
Bank's rate of interest stated by the Bank from time to time to
be its prime rate (irrespective of any rate charged to any
customer in any actual transaction).
Interest shall continue to accrue after maturity at the
rate required by this Revolving Line Note until this Revolving
Line Note is paid in full. The rate of interest on this
Revolving Line Note may be increased under the circumstances
provided in the Amended and Restated Credit Agreement between the
Borrower and the Bank dated September 29, 1994, as the same has
been and may be modified, extended, or replaced from time to time
(the "Credit Agreement"). The right of Bank to receive such
increased rate of interest shall not constitute a waiver of any
other right or remedy of Bank.
All interest accrued under this Revolving Line Note
shall be due and payable on the first day of each month.
Principal payments shall be due and payable sufficient to assure
that the aggregate principal amount outstanding under the
Revolving Line never exceeds the amount then available under the
Borrowing Formula described in Article I, Section B of the Credit
Agreement, and also sufficient to assure that there is no
outstanding principal under the Revolving Line for at least
thirty (30) consecutive days between each September 1 and the
next succeeding August 31. All remaining principal and interest
shall be due and payable in full on the date of expiration of the
Revolving Line as specified in the Credit Agreement. Payments may
be made pursuant to a mutually agreeable cash management
arrangement with the Bank. All payments shall be in lawful money
of the United States in immediately available funds.
Any payment not received within ten days of when due
may be subject to an additional late charge equal to 5% of the
payment due.
If this Revolving Line Note or any payment hereunder
becomes due on a Saturday, Sunday or other holiday on which the
Bank is authorized to close, the due date for the Revolving Line
Note or payment shall be extended to the next succeeding business
day, but any interest or fees shall be calculated based upon the
actual time of payment.
This Revolving Line Note is freely prepayable in whole
or in part at the option of the Borrower without premium or
penalty.
This Revolving Line Note shall, at the Bank's option,
become immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby
expressly waived, upon the happening of any Event of Default
under the Credit Agreement.
This Revolving Line Note is subject to the express
condition that at no time shall Borrower be obligated or required
to pay interest on the principal balance of this Revolving Line
Note at a rate which could subject Bank to either civil or
criminal liability as a result of being in excess of the maximum
rate which Borrower is permitted by law to contract or agree to
pay. If by the terms of this Revolving Line Note, Borrower is at
any time required or obligated to pay interest on the principal
balance of this Revolving Line Note at a rate in excess of such
maximum rate, the rate of interest under this Revolving Line Note
shall be deemed to be immediately reduced to such maximum rate
and interest payable hereunder shall be computed at such maximum
rate and the portion of all prior interest payments in excess of
such maximum rate shall be applied and shall be deemed to have
been payments in reduction of the principal balance of this
Revolving Line Note.
The terms of this Revolving Line Note cannot be
changed, nor may this Revolving Line Note be discharged in whole
or in part, except by a writing executed by the holder. In the
event that holder demands or accepts partial payments of this
Revolving Line Note, such demand or acceptance shall not be
deemed to constitute a waiver of the right to demand the entire
unpaid balance of this Revolving Line Note at any time in
accordance with the terms hereof. Any delay by holder in
exercising any rights hereunder shall not operate as a waiver of
such rights.
Bank may set off toward payment of any obligations
under this Revolving Line Note any indebtedness due or to become
due from Bank to Borrower and any moneys or other property of
Borrower in possession of Bank at any time.
Borrower on demand shall pay all expenses of Bank,
including without limitation reasonable attorneys' fees, in
connection with enforcement and collection of this Revolving Line
Note.
This Revolving Line Note shall be governed by the laws
of the State of New York.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Bank" and
"Borrower" shall include their respective successors and assigns.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:________________________
RESTATED AND AMENDED CREDIT AGREEMENT
THIS RESTATED AND AMENDED CREDIT AGREEMENT is made as
of December 21, 1995 by and between FLEET BANK, a New York bank
and trust company and successor by merger to Norstar Bank, N.A.
and Fleet Bank of New York, with offices at One East Avenue,
Rochester, New York 14638 (called the "Bank") and TRAVEL PORTS OF
AMERICA, INC., formerly known as Roadway Motor Plazas, Inc., a
New York corporation with offices now at 3495 Winton Place,
Building C, Rochester, New York 14623 (the "Borrower").
WHEREAS, the Bank and the Borrower entered into a
Credit Agreement dated June __, 1988, which Credit Agreement was
amended and restated in a Restated and Amended Credit Agreement
dated January 28, 1991, which Restated and Amended Credit
Agreement was also been further amended, and which Credit
Agreement was further amended and restated in a Restated and
Amended Credit Agreement dated June 30, 1994, which Credit
Agreement was further amended and restated in a Restated and
Amended Credit Agreement dated September 29, 1994, and which
Credit Agreement was further amended by Credit Agreement
Amendment Number 1 dated September ___, 1995 (collectively, the
"1988 Agreement"), and
WHEREAS, the parties desire to further amend the 1988
Agreement, and deem it in their respective best interest to
restate and amend the 1988 Agreement in its entirety for ease of
reference,
NOW THEREFORE, the Bank and the Borrower agree to amend
and restate the 1988 Agreement in its entirety as follows, and
further agree that (a) except as expressly changed herein this
Agreement shall cover the same rights and obligations as are
covered by the 1988 Agreement, (b) all references in mortgages,
security agreements, notes, and other documents, instruments, and
agreements related to this Agreement or to the 1988 Agreement
which refer to the 1988 Agreement shall be deemed to refer to
this Restated and Amended Credit Agreement as the same may be
modified, extended, or replaced from time to time.
ARTICLE I - LOANS
A. Term Loans. The Bank shall consolidate existing
loans to the Borrower in an aggregate amount of, and the Borrower
shall borrow an aggregate amount of, $10,500,000 (the "Term
Loan"). The Term Loan shall be evidenced by an amended,
consolidated, and restated Term Loan Note in the new principal
amount of $10,500,000, the form of which is attached hereto as
Exhibit A (the "Term Loan Note").
The amount outstanding on the date of closing under the
Term Loan referenced in the 1988 Agreement shall remain
outstanding as a part of the Term Loan hereunder and the terms
thereof shall be modified to the terms of the Term Loan
hereunder. The remaining principal portion of the Term Loan shall
be available to the Borrower first to repay $1,500,000 in
existing Bank line of credit obligations on the date of closing.
The remaining proceeds shall be advanced into an escrow account
to be held by the Bank for the benefit of the Borrower.
The Bank will invest the funds held in the escrow
account in income producing accounts at the Bank or an Affiliate
of the Bank mutually satisfactory to the Bank and the Borrower.
Advances will be made from the escrow account as requested by
Borrower for capital expenditures in Borrower's fiscal year 1995,
improvements to Borrower's property commonly known as Exit 3
Truckstop in Greenland, New Hampshire, and infrastructure
improvements to Borrower's property in Harborcreek, Erie,
Pennsylvania. Advance requests must be accompanied by invoices
for expenses incurred reasonably satisfactory to the Bank.
Outstanding principal balances under the Term Loan
shall bear interest at ten and twelve/hundredths percent (10.12%)
per annum, calculated based on actual days elapsed in a year of
360 days. For purposes of this Agreement, the "Prime Rate" is
the Bank's rate of interest stated by the Bank from time to time
to be its prime rate (irrespective of any rate charged to any
customer in any actual transaction).
The Borrower shall pay all interest accrued on the Term
Loan on the first day of each month commencing on November 1,
1994 and continuing through March 1, 1995. On the first day of
each month commencing on April 1, 1995, the Borrower shall make a
combined principal and interest payment of $166,957.84. Payments
shall be applied first to accrued interest and then to principal.
In the event that any payment is insufficient to pay all accrued
interest, all such accrued interest shall be immediately payable
and the Bank reserves the right to adjust the monthly payment
amount to an amount deemed reasonably sufficient to fully
amortize the principal and interest of the Term Loan by the
maturity date. All remaining principal and interest shall be due
and payable in full on September 29, 2002.
The Borrower may prepay, in whole or in part, the Term
Loan Note at any time. The prepayment shall be accompanied by a
prepayment charge computed as follows:
The latest available yield preceding the date of
prepayment, as available through active market trading
or published in the Wall Street Journal, for United
States Treasury Notes or Bills (with Bills on a
discounted basis converted to a bond equivalent) with a
maturity date closest to September 29, 2002 shall be
subtracted from 7.62%. If the result is zero or a
negative number, there shall be no prepayment charge.
If the result is a positive number, then the resulting
percentage shall (i) be multiplied by the principal
amount prepaid, then (ii) divided by 360, then (iii)
multiplied by the number of days remaining prior to
September 29, 2002, and then (iv) reduced to a present
value calculated using the above referenced Treasury
Note or Bill yield. The resulting amount shall be the
amount of the prepayment charge due to the Bank.
Principal prepayments shall be applied first to
interest accrued on the amount prepaid, and then to principal in
inverse order of maturity.
B. Revolving Line of Credit. The Bank hereby
establishes a revolving line of credit (the "Revolving Line") in
the maximum principal amount of Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000). The Revolving Line replaces and
supersedes existing revolving lines established by the Bank for
Borrower.
A Revolving Line Note (the "Revolving Line Note") in
substantially the form of Exhibit B hereto will evidence the
Revolving Line.
All outstanding principal amounts under the Revolving
Line shall bear interest until paid at a rate per annum equal to
the "Prime Rate" plus one-half percentage point (1/2%) calculated
based on actual days elapsed in a year of 360 days, but never
exceeding the maximum rate allowed by law. All changes in the
interest rate due to a change in the Prime Rate shall take place
automatically and without notice to Borrower as of the effective
date of the change in the Prime Rate. For purposes of this
Agreement, the "Prime Rate" is the Bank's rate of interest stated
by the Bank from time to time to be its prime rate (irrespective
of any rate charged to any customer in any actual transaction).
The Borrower shall make a payment of all interest
accrued under the Revolving Line Note on the first day of each
month. The Borrower shall make principal payments sufficient to
assure that the aggregate principal amount outstanding under the
Revolving Line never exceeds the amount then available under the
Borrowing Formula described below, and also sufficient to assure
that there is no outstanding principal under the Revolving Line
for at least thirty (30) consecutive days between each September
1 and the next succeeding August 31. All remaining principal and
interest shall be due and payable in full on the date of
expiration of the Revolving Line.
The Revolving Line shall terminate on August 31, 1996
unless extended in writing in the sole discretion of and on such
terms as are acceptable to the Bank, and no further advances
shall be made thereafter.
The Borrower may borrow, repay, and reborrow under the
Revolving Line so long as no Event of Default hereunder has
occurred and the aggregate principal amount outstanding at any
one time does not exceed the lesser of $2,750,000 or the sum then
available according to the following formula (the "Borrowing
Formula"): (a) eighty percent (80%) of all Borrower eligible
accounts receivable as defined below ("Eligible Accounts") plus
(b) forty-five percent (45%) of all Borrower eligible inventories
as defined below ("Eligible Inventories").
Eligible accounts receivable are defined as: (i) all
trade accounts receivable less than 90 days beyond date of
invoice plus (ii) the less than 90 days beyond date of invoice
portion of receivables from one customer of which at least 50% of
the outstanding amount is less than 90 days beyond date of
invoice, minus all (iii) marginal accounts receivable, contra
accounts receivable, affiliate company accounts receivable,
foreign accounts receivable, employee accounts receivable, bill
and hold accounts receivable (i.e. accounts relating to goods not
yet shipped but invoiced), uncollectible accounts receivable,
accounts receivable arising from progressive billings (ie.
accounts receivable from billings for work performed on a
partially completed contract), accounts receivable arising from
guaranteed sales with buy-back provisions (ie. accounts
receivable arising from sales in which the Borrower is obligated
to repurchase inventory or merchandise sold to customers), and
accounts receivable of companies or businesses actually known to
the Bank to be deteriorating. In the event that total accounts
receivable from any payor represent more than 20% of the
Borrower's total accounts receivable, the Bank reserves the right
in its sole discretion to delete those accounts receivable in
excess of 20% of total accounts from eligible accounts receivable
unless the Borrower has provided to the Bank sufficient
information regarding the obligor on the accounts for the Bank to
make a determination as to the creditworthiness of that obligor.
Eligible inventories are defined as all inventories
owned by the Borrower valued at cost minus all perishable or non-
saleable inventories.
Eligible accounts receivable and eligible inventories
must arise from the Borrower's ordinary course of business as it
exists on the date hereof. The Bank reserves the right in its
sole discretion to modify the borrowing formula or make changes
in the definitions of eligible accounts or eligible inventories,
or to delete certain accounts or inventories from the borrowing
formula, all in the event of a material adverse change in the
collateral or its collectibility.
The amount available under the Revolving Line shall be
reduced by the aggregate amount of outstanding Letters of Credit
issued by the Bank for the account of the Borrower. Letters of
Credit will be issued at the request of the Borrower in the
discretion of, and upon terms acceptable to, the Bank. The
Borrower shall pay to the Bank a non-refundable commission of one
and one-half percent (1.5%) per annum with respect to the face
amount of each respective letter of credit on the date such
letter of credit is issued.
Borrower agrees to allow the Bank complete access to
all books and records of the Borrower upon reasonable request.
Borrower agrees to submit information which the Bank may
reasonably request from time to time in connection with the
Revolving Line. The Borrower will provide to the Bank such
borrowing reconciliation reports, agings, listings, and other
reports and information as the Bank requests in connection with
the Revolving Line including without limitation accounts agings
and inventory reports as requested.
C. Mortgage Loans. The Borrower and the Bank
hereby reaffirm the Borrower's (and its predecessor's) existing
mortgage secured obligations to the Bank (the "Mortgage Loans"),
as follows:
1. 1980 Livingston County Industrial Development
Agency Industrial Development Revenue Bonds (Interstate
Travel Plaza, Inc. Facility) in the original principal
amount $950,000 secured by Mortgages on property in
Livingston County (Dansville), New York,
2. obligations covered by a Consolidation and
Extension Agreement in the original aggregate principal
amount of $350,000 dated October 23, 1987 and secured by a
Mortgage on property in the Town of Amity (Belmont), New
York,
3. obligations covered by a Deed of Trust Note in the
original principal amount of $2,000,000 dated July 5, 1988
and secured by a Deed of Trust on property in Buncombe
County (Ashville), North Carolina,
4. obligations covered by a Note in the original
principal amount of $4,400,000 dated January 5, 1989 and
secured by a Mortgage on property in Porter County (Porter),
Indiana,
5. obligations covered by a Note in the original
principal amount of $500,000 dated January 5, 1989 secured
by a Mortgage covering leasehold interests in Lake County
(Lake Station), Indiana, and
6. obligations covered by a Note in the original
principal amount of $5,500,000 dated January 4, 1990 secured
by a Mortgage covering property in Franklin County
(Greencastle), Pennsylvania.
The terms of the Mortgage Loans shall remain in full force and
effect, but such loans also shall be covered by the terms of this
Agreement.
D. 1992 Loan. [Intentionally omitted: On April
30, 1992 the Bank made an additional term loan to the Borrower in
the aggregate principal amount of $1,966,685 (the "1992 Loan").
The 1992 Loan has been paid in full.]
E. 1994 Loan. The Bank made, on or about June 30,
1994, an additional term loan to the Borrower in the aggregate
principal amount of $2,500,000 (the "1994 Loan"). The 1994 Loan
shall be repaid according to the terms of the 1994 Loan Note, the
form of which is attached hereto as Exhibit C (the "1994 Loan
Note"). The Borrower was required to use the proceeds of the 1994
Loan Note for the purchase of assets which constitute the Exit 3
Truckstop in Greenland, New Hampshire.
F. Assumption of Interstate Travellers Debt. The
Borrower has previously assumed and hereby reaffirms its
assumption of all of the obligations of any kind or nature of
Interstate Traveller Services, Inc. to the Bank, including
without limitation obligations related to the Mortgage Loans and
to the mortgages given to the Bank in 1988 covering properties
located in Centre, Luzerne, Columbia, and Franklin Counties,
Pennsylvania. The Borrower shall be deemed to be a party to, and
shall be bound by all documents and agreements relating to
obligations of Interstate Traveller Services, Inc. to the Bank in
the same manner as if the Borrower had executed such documents
and agreements in the first instance. The Borrower shall provide
such further instruments and assurances regarding the aforesaid
assumption as the Bank may reasonably request from time to time.
G. Erie Line of Credit/Term Loan. The Bank hereby
establishes a non-revolving construction line of credit (the
"Erie Line") in the maximum principal amount of Three Million
Five Hundred Thousand Dollars ($3,500,000). The Erie Line shall
be used to fund capital expenditures and construction costs
relating to construction of a new truck stop/travel center to be
located in Harborcreek (Erie), Pennsylvania (the "Erie Project").
A Revolving Line Note (the "Erie Line Note") in
substantially the form of Exhibit D hereto will evidence the
Revolving Line.
All outstanding principal amounts under the Erie Line
shall bear interest until paid at a rate per annum equal to the
"Prime Rate" plus one-half percentage point (1/2%) calculated
based on actual days elapsed in a year of 360 days, but never
exceeding the maximum rate allowed by law. All changes in the
interest rate due to a change in the Prime Rate shall take place
automatically and without notice to Borrower as of the effective
date of the change in the Prime Rate.
The Borrower shall make a payment of all interest
accrued under the Erie Line Note on the first day of each month.
All remaining principal and interest shall be due and payable in
full on July 31, 1996, or if sooner, on the date that the Erie
Loan (defined below) is made.
The Erie Line shall terminate on July 31, 1996 unless
extended in writing in the sole discretion of and on such terms
as are acceptable to the Bank, and no further advances shall be
made thereafter.
Advances under the Erie Line shall be made in the
reasonable discretion of the Bank and shall be used to fund
construction costs in connection with the Erie Project. At the
time of requesting each advance, the Borrower shall provide the
Bank with such documentation as the Bank may require, including
without limitation a summary of expenses paid and incurred to
date related to the Erie Project and, if requested by the Bank,
supporting documentation for the same. The Bank reserves the
right to require the Borrower to provide evidence to the Bank
that the Borrower has sufficient resources, when combined with
the remaining commitment under the Erie Line, to complete the
Erie Project before the Bank shall make any additional advances
under the Erie Line. At its discretion and upon its request, the
Bank may require the Borrower from time to time to provide title
updates and lien waivers with respect to the Erie Project, and
any cost variations exceeding ten percent (10%) in the aggregate
from the budget provided to the Bank prior to commencement of the
Erie Project will require prior approval of the Bank.
On the date of completion of the Erie Project, but not later
than July 31, 1996, the Bank will make a term loan (the "Erie
Loan") related to the Erie Project in the lesser amount of
$6,000,000 or 80% of the appraised value of the completed Erie
Project as evidenced by an appraisal acceptable to the Bank;
provided, however, that the Bank shall have no obligation to make
the Erie Loan unless each of the following conditions has been
met:
(i) no Event of Default hereunder has occurred
hereunder,
(ii) all construction and improvements have
been completed as evidenced by a certificate of
the construction manager that construction has
been completed according to the plans and
specifications approved by the Bank and Borrower,
(iii) an unconditional Certificate of
Occupancy and any other permits or licenses have
been issued,
(iv) all certificates of payment are received
from all contractors and subcontractors performing
construction work,
(v) final, as built engineering and
architectural drawings, are received,
(vi) a survey, certified to the Bank showing
all improvements, easements, and encroachments has
been delivered to the Bank,
(vii) a final appraisal, satisfactory to the
Bank but at Borrower expense, has been received
showing the Erie Loan to be no greater than 80% of
the value of the property,
(viii) the Bank has received a first mortgage
securing the full amount of the Erie Loan with all
supporting documentation required by the Bank
including without limitation, title insurance
satisfactory to the Bank evidencing the first
mortgage interest of the Bank covering the Erie
Project, subject to no liens or encumbrances
except those agreed to in writing by the Bank, and
(ix) the Bank has received an environmental
review of the premises covered by the Erie Project
showing no adverse conditions and in form and
substance satisfactory to the Bank, prepared by an
engineer satisfactory to the Bank but the cost of
which shall be reimbursed by the Borrower.
An Erie Loan Note (the "Erie Loan Note") in
substantially the form of Exhibit E hereto will evidence the Erie
Loan.
All outstanding principal amounts under the Erie Loan
Note shall bear interest until paid in full, at the option of the
Borrower exercised at least two business days prior to the making
of the Erie Loan, at either
(a) one-half percentage point (.5%) above
the Prime Rate, with changes in the rate of
interest applicable to the Erie Loan Note becoming
effective automatically and without prior notice
at the time of changes in the Prime Rate, or
(b) two hundred fifty basis points (2.50%)
above the Bank's ten year cost of funds as
designated by the Bank to the Borrower in the sole
discretion of the Bank, established on the date of
the Erie Loan Note and remaining fixed during the
life of such Erie Loan Note.
Interest shall be calculated based on actual days elapsed divided
by a year of 360 days.
Payments of all accrued interest under the Erie Loan
Note shall be due on the first day of each month.
Equal monthly principal payments for the Erie Loan Note
shall be due, each in an amount equal to one-one hundred
eightieth (1/180th) of the original principal amount of such Erie
Loan Note. Principal payments shall be due on the first day of
each month. All remaining principal and interest under the Erie
Loan Note shall be due and payable in full on the date ten (10)
years from the date on which it is made.
In the event that the Borrower chooses to prepay, in
whole or in part, the Erie Loan Note, if the Borrower has elected
a fixed rate of interest, the prepayment shall be accompanied by
a premium as follows:
The latest available yield preceding the date of
prepayment, as available through active market trading
or published in the Wall Street Journal, for United
States Treasury Notes or Bills (with Bills on a
discounted basis converted to a bond equivalent) with a
maturity date closest to the maturity date of the
respective Equipment Line Note shall be subtracted from
the cost of funds used in establishing the initial
fixed rate. If the result is zero or a negative
number, there shall be no prepayment charge. If the
result is a positive number, then the resulting
percentage shall (i) be multiplied by the principal
amount prepaid, then (ii) divided by 360, then (iii)
multiplied by the number of days remaining prior to the
maturity date of the Erie Loan Note, and then (iv)
reduced to a present value calculated using the above
referenced Treasury Note or Bill yield. The resulting
amount shall be the amount of the prepayment charge due
to the Bank.
If the Borrower has elected a floating rate of interest, the
prepayment may be made without premium or penalty. Principal
prepayments shall be applied first to principal in inverse order
of maturity.
ARTICLE II
(Intentionally Omitted)
ARTICLE III - FEES AND EXPENSES
A. Placement and Administration Expense. The Borrower
shall pay any reasonable fees, expenses, and disbursements,
including legal fees, of the Bank related to preparation and
execution of this Agreement and any loans made hereunder. The
Borrower shall pay the Bank's customary and reasonable fees,
expenses, and disbursements in connection with administration of
this Agreement including costs of periodic appraisals of the
collateral and monitoring of the Revolving Line.
B. Collection Costs. At the request of the Bank, the
Borrower shall promptly pay any expenses, reasonable attorney's
fees, costs, or disbursements in connection with collection of
any of the obligations covered hereby or enforcement of any of
the Bank's rights hereunder or under any note, security
agreement, guarantee, or other agreement given to the Bank in
connection herewith. This obligation shall survive the payment
of any notes executed hereunder. The Bank may apply any payments
of any nature received by it first to the payment of obligations
under this section, notwithstanding any conflicting provision
contained in any other agreement related hereto.
C. Origination Fee. The Borrower paid origination
fees in connection with (i) the consolidated Term Loan and (ii)
the Bank's purchase of the LaBar loans which were repaid with the
proceeds of the 1992 Loan.
The Borrower paid an origination fee of $25,000 in
connection with the making of the 1994 Loan.
The Borrower paid an origination fee of Thirty Thousand
Dollars ($30,000) in connection with the making of the Term Loan.
The Borrower shall pay an origination fee equal to one-
half percent (.5%) of the original principal amount of the Erie
Loan Note on the date of closing of the Erie Loan.
D. Default Interest Rate. Upon the failure of the
Borrower to comply with any covenant contained in Article VII,
Sections A, J, or K, or Article VIII, Section J of this
Agreement, the rate of interest on each of the obligations
covered hereby shall be increased to a rate at all times equal to
two percent (2%) above the rate of interest which would be in
effect absent such failure of compliance, such increased rate to
remain in effect through and including the end of the month in
which such failure of compliance is remedied. Upon the
occurrence of an Event of Default, however, the provisions of
this paragraph shall be superseded by the provisions of the next
paragraph of this Section D.
Upon the occurrence of an Event of Default, the rate of
interest on each of the Obligations shall be increased to a rate
at all times equal to two percent (2%) above the rate of interest
which would be in effect absent such failure of compliance, such
increased rate to remain in effect through and including payment
in full of all of the obligations covered by this Agreement and
cancellation of further commitments to lend under this Agreement,
or written waiver of such Event of Default by the Bank.
E. Late Payment Fees. Payments of principal and/or
interest not made in full before the date ten (10) days after the
date due shall be subject to a processing charge of five percent
(5%) of the payment due.
ARTICLE IV - COLLATERAL
The Term Loan, the Mortgage Loans, and the Erie Line
and Erie Loan shall be secured by mortgage liens and assignments
of mortgage liens on Borrower's interests in real properties
located in (i) Gloucester County, New Jersey, (ii) Montgomery,
Livingston, and Broome Counties, New York, (iii) Anderson and
Oconee Counties, South Carolina, (iv) Buncombe County, North
Carolina, (v) Centre, Lehigh, Luzerne, Columbia, Clinton,
Franklin, and Erie Counties, Pennsylvania, (vi) Rockingham
County, New Hampshire, and (vii) Porter and Lake Counties,
Indiana.
The 1992 Loan was secured by mortgage liens on
Borrower's interests in real properties in Gloucester County, New
Jersey, Columbia County, Pennsylvania, and Lehigh County,
Pennsylvania.
The 1994 Loan shall be secured by mortgage liens on
Borrower's interests in real properties in Rockingham County, New
Hampshire as well as by interests in Borrower's other properties
including without limitation properties in Gloucester County, New
Jersey and Franklin County, Pennsylvania.
All of the aforesaid mortgages shall be documented and
perfected in a manner satisfactory to the Bank and its legal
counsel.
The Revolving Line shall be secured by the collateral
for the Term Loan and the 1994 Loan as well as a sole first lien
in all assets of every kind and nature, now owned or hereafter
acquired, of Borrower, including without limitation goods,
equipment, machinery, furniture, fixtures, supplies, tools,
parts, accounts, inventory, documents, chattel paper,
instruments, and general intangibles of Borrower, together with
additions, accessions, replacements, substitutions, and proceeds.
The Erie Line and the Erie Term Loan shall be secured
by all assets of every kind and nature, now owned or hereafter
acquired, of Borrower, including without limitation goods,
equipment, machinery, furniture, fixtures, supplies, tools,
parts, accounts, inventory, documents, chattel paper,
instruments, and general intangibles of Borrower, together with
additions, accessions, replacements, substitutions, and proceeds.
In addition, the Erie Line and Erie Term Loan shall be secured by
a mortgage covering the Borrower's property in Erie County,
Pennsylvania.
The existing collateral for the Mortgage Loans shall
continue to secure such Mortgage Loans.
The Borrower shall execute such documentation and
deliver such items as the Bank deems necessary from time to time
to perfect its interests in all collateral provided hereunder,
and authorizes the Bank to file financing statements without its
signature from time to time.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows:
A. Organization and Power. The Borrower is duly
formed, validly existing and in good standing under the laws of
New York, and is duly qualified to transact business and is in
good standing in all states and countries in which it owns
properties or in which it conducts intrastate or international
business. The Borrower has full power and authority to own its
properties, to carry on its business as now being conducted, to
execute and perform this Agreement, and to borrow hereunder.
B. Proceedings of Borrower. All necessary action on
the part of the Borrower and any other required persons or
entities relating to authorization of the execution and delivery
of this Agreement and the performance of other obligations
hereunder including, but not limited to, the delivery of any
notes, security agreements, and guarantees contemplated
hereunder, has been taken. All of the same are valid and
enforceable in accordance with their respective terms except as
may be limited by bankruptcy, insolvency, or other laws of
general application relating to enforcement of creditor's rights,
and except as remedies may be limited by the application of
equitable principles. Said action will not violate any provision
of law or the Borrower's or any other required person's or
entity's Certificate of Incorporation or By-laws. Such action
will not violate, be in conflict with, result in a breach of, or
constitute a default under any agreement to which the Borrower or
any other required person or entity is party or by which any of
their properties are bound, or any order, writ, injunction, or
decree of any court or governmental instrumentality, and will not
result in the creation or imposition of any lien, charge or
encumbrance upon any of their properties with the sole exception
of those in favor of the Bank contemplated hereby.
C. Litigation. At the date of this Agreement, there
is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency pending
or, to their knowledge, threatened against or affecting the
Borrower which, if adversely determined, would have a material
adverse effect on its financial condition or business.
D. Financial Statements. All financial statements
furnished by the Borrower to the Bank are complete and correct,
have been prepared in accordance with generally accepted
accounting principles consistently followed throughout the period
indicated, and fairly present the financial condition of the
Borrower as of the respective dates thereof and the results of
its operations for the respective periods covered thereby;
provided that interim financial statements are subject to normal
recurring year end adjustments and matters that customarily would
be set forth in the notes to audited financial statements.
E. Adverse Changes. Since the latest financial
statements described in Article V.D., there have been no material
adverse changes in the condition, financial or otherwise, of the
Borrower.
F. Taxes. The Borrower have obtained extensions or
have filed or caused to be filed all tax returns which, to the
knowledge of the officers of the Borrower are required to be
filed, and have paid or caused to be paid all taxes or any
assessments to the extent that such taxes have become due.
G. Properties. The Borrower has good and marketable
title to all its material property interests and assets,
including without limitation, the property and assets set forth
in the financial statements referred to in Article V.D. hereof,
except as previously disclosed to the Bank. The Borrower has
undisturbed peaceable possession under all leases under which it
is operating, none of which contain unusual or burdensome
provisions which may materially affect the operations of the
Borrower and all such leases are in full force and effect.
H. Indebtedness. The Borrower has no outstanding
indebtedness other than indebtedness described in the financial
statements referred to in Article V.D. hereof, trade payables not
yet due incurred in the ordinary course of Borrower's business,
and indebtedness to the Bank.
I. Franchises, Permits. The Borrower has all material
franchises, permits, licenses, and other authority as are
necessary to enable it to conduct its business as now being
conducted, and is not in default under such franchises, permits,
licenses, and authority.
J. ERISA. No action, event, or transaction has
occurred which could give rise to a lien or encumbrance on
Borrower's assets as a result of the application of relevant
provisions of the Employee Retirement Income Security Act of 1974
("ERISA").
ARTICLE VI - CONDITIONS OF LENDING
The following conditions must be satisfied by Borrower
before the Bank shall have any obligation to make any advance or
loan under this Agreement:
A. Representations and Warranties. The
representations and warranties of the Borrower contained in
Article V shall be true and correct in all material respects as
of the time of the making of each such loan or advance with the
same effect as if made on and as of such date.
B. No Defaults. There shall exist no condition or
event constituting an Event of Default under Article IX hereof at
the time of making of each loan or advance hereunder.
C. Performance. The Borrower shall have performed and
complied in all material respects with all agreements and
conditions required to be performed or complied with by it prior
to or at the time of making each loan or advance hereunder.
D. Documents to be Delivered. The Borrower shall have
delivered to the Bank security agreements, guarantees, and other
related documents as more particularly described in Article IV
hereof.
E. Certified Resolutions. The Borrower shall have
delivered the certificate of its Secretary, certifying as of the
date of this Agreement, resolutions of its Board of Directors
authorizing execution and delivery of this Agreement and of the
notes, security agreements and other agreements to be delivered
hereunder.
F. Fees and Taxes. The Borrower shall have paid all
filing fees, taxes, and assessments related to the borrowings and
the perfection of any collateral security required hereunder.
G. Insurance. The Borrowers shall have delivered
evidence satisfactory to the Bank of the existence of insurance
required hereby.
H. Opinion of Counsel. The Borrower shall have caused
to be delivered the opinion of its legal counsel as to such
matters and in such form as may be required by legal counsel to
the Bank, including as to the existence of the Borrower, its
power and authority to take the actions contemplated hereby, and
the enforceability of the agreements and obligations contemplated
hereby.
ARTICLE VII - AFFIRMATIVE COVENANTS OF BORROWER
So long as the Revolving Line commitment, the Term
Loan, the Mortgage Loans, the 1994 Loan, the Erie Line, the Erie
Loan, or any loans hereunder or any other obligations of Borrower
to the Bank under or related to this Agreement shall be
outstanding, unless the Bank shall otherwise consent in writing,
the Borrower shall:
A. Financial Statements. Furnish to the Bank as soon
as available, but in no event more than one hundred twenty (120)
days after the close of each fiscal year of Borrower, copies of
annual financial statements of Borrower in reasonable detail
satisfactory to the Bank prepared in accordance with generally
accepted accounting principles, certified without qualification
by an independent certified public accountant satisfactory to the
Bank. Said financial statements shall include all financial
disclosures required by generally accepted accounting principles
and shall include at least a balance sheet and a statement of
profit and loss.
Borrower also shall furnish to the Bank unaudited
financial statements not more than forty-five (45) days after the
close of each fiscal month. Said statements shall be in
reasonable detail satisfactory to the Bank including at least a
balance sheet and statement of profit and loss, and shall be
prepared in accordance with generally accepted accounting
principles. Said financial statements shall be certified to be
complete and correct by officers of Borrower.
The Borrower also shall promptly provide to the Bank
any interim financial statements reviewed or certified by its
independent accountants, as well as copies of any of its filings
with the Securities and Exchange Commission including its Form
10K within 120 days after its fiscal year end and its Form 10Q
within 60 days after the end of each of its fiscal quarters.
At the time of submission of annual financial
statements the Borrower shall submit to the Bank a signed
certificate of its chief executive or financial officer to the
effect that no Events of Default have occurred, exist, or to the
knowledge of Borrower will exist in the future under Article IX
of this Agreement or any other agreements contemplated hereunder.
B. Other Reports and Inspections. Furnish to the Bank
such additional information, reports or financial statements as
the Bank may, from time to time, reasonably request. Borrower
shall permit any person designated by the Bank to inspect its
property, assets, and books and the Bank's collateral at
reasonable times, and shall discuss its affairs, finances and
accounts at reasonable times with the Bank from time to time as
often as may be reasonably requested.
C. Taxes. Pay and discharge all taxes, assessments,
levies, and governmental charges upon it, its income and
property, prior to the date on which penalties are attached
thereto, provided that they shall not be required to pay any such
tax, assessment, levy or charge which is being contested in good
faith and by appropriate legal proceedings so long as no lien or
similar encumbrance is placed by taxing authorities on any of
their property.
D. Insurance. Maintain or cause to be maintained
insurance, of kinds and in amounts satisfactory to the Bank, with
responsible insurance companies on all of its properties in such
amounts and against such risks as are prudent including but not
limited to hazard insurance, worker's compensation insurance, and
liability insurance. All such hazard insurance policies shall
name the Bank as mortgagee/loss payee as its interest may appear
and shall provide for thirty days prior written notice of
cancellation to the Bank. Borrower shall provide to Bank, upon
its request, a detailed list of its insurance carriers and
coverage and shall obtain such additional insurance as the Bank
may reasonably request from time to time.
E. Payments. Make all payments promptly and as the
same become due under this Agreement and the notes related
hereto.
F. Existence. Cause to be done all things necessary
to preserve and to keep in full force and effect its existence,
rights, and franchises and to comply in all material respects
with all valid laws and regulations now in effect or hereafter
promulgated by any properly constituted governmental authority
having jurisdiction.
G. Maintenance of Properties. At all times maintain,
preserve, protect, and keep its property used or useful in
conducting its business in good repair, working order, and
condition and from time to time, and make all needful and proper
repairs, renewals, replacements, betterments and improvements
thereto, so that the business carried on may be properly and
advantageously conducted at all times.
H. Material Changes, Judgments. Notify the Bank
immediately of any Event of Default or material adverse business
development or change in its financial condition. Borrower shall
notify the Bank of any change in its name, identity, or corporate
or organizational structure.
I. ERISA. Comply with all requirements of the
Employee Retirement Income Security Act, as amended ("ERISA") on
a timely basis.
J. Minimum Net Worth. Maintain at all times net worth
calculated by generally accepted accounting principles ("GAAP")
of at least the following amounts in the following years,
measured on a quarterly basis:
(a) prior to April 30, 1991 - $7,500,000,
(b) commencing April 30, 1991 and continuing
through April 29, 1992 - $8,250,000,
(c) commencing April 30, 1992 and continuing
through April 29, 1993 - $8,250,000,
(d) commencing April 30, 1993 and continuing
through April 29, 1994 - $8,600,000,
(e) commencing April 30, 1994 and continuing
through April 29, 1995 - $9,250,000,
(f) commencing April 30, 1995 and continuing
through August 31, 1995 - $11,400,000, and
(g) commencing September 1, 1995 and
continuing thereafter - $12,250,000.
K. Current Maturity Coverage Ratio. Maintain a
current maturity coverage ratio (net income plus depreciation
plus amortization less dividends and distributions divided by
currently maturing long term debt) calculated by GAAP of not
lower than 1.1 to 1 through April 30, 1992. Thereafter, such
ratio (i) shall be reported on or before December 15, 1992 and
measured as of October 31, 1992 and shall not be lower than 1.1
to 1 on an annualized basis of six months results for the period
between May 1, 1992 and October 31, 1992, (ii) shall be reported
on or before July 31, 1993 and measured as of April 30, 1993 and
shall not be lower than 1.1 to 1 for the twelve month period
ending April 30, 1993, (iii) shall be (a) reported on or before
each December 15 commencing December 15, 1993 and measured as of
the preceding October 31 and shall not be lower than 1.2 to 1 on
an annualized basis of six months results for the period between
the preceding May 1 and such preceding October 31, and (b) shall
be reported on or before each July 31 commencing July 31, 1994
and measured as of the preceding April 30 and shall not be lower
than 1.2 to 1 for the twelve month period ending on such April
30.
L. Proceeds of Sales. Cause the proceeds, after
payment of expenses related thereto, of any sales of properties
covered by the mortgages, or sales of other collateral,
referenced in Article IV hereof to be delivered to the Bank to be
used to retire obligations first under the Term Loan, second
under the Mortgage Loans, and third under the 1994 Loan;
provided, however, that to the extent proceeds specifically
relate to a property covered by one of the Mortgage Loans, the
Erie Line or the Erie Loan, or the 1994 Loan, to the extent
applicable, such proceeds shall be used to reduce the respective
Mortgage Loan or the Erie Line or the Erie Loan respectively; and
further provided, however, that if any mortgaged property is the
subject of a sale-leaseback, the Bank will not unreasonably
withhold its approval of the same on such terms and conditions as
may be mutually agreeable between the Bank and the Borrower.
M. Interest Exposure Coverage. Cause at all times to
be subject to fixed rates or interest rate caps or other interest
rate protection satisfactory to the Bank, at least fifty percent
(50%) of the outstanding principal amount of the aggregate of (i)
its obligations to the Bank of any kind or nature and (ii) its
obligations with respect to the 8.5% Convertible Senior
Subordinated Debentures described in Article VIII.A. of this
Agreement.
ARTICLE VIII - NEGATIVE COVENANTS OF BORROWER
So long as the Revolving Line commitment, the Term
Loan, the Mortgage Loans, the 1994 Loan, the Erie Line, the Erie
Loan, or any loans hereunder or any other obligations of Borrower
to the Bank under or related to this Agreement shall be out
standing, unless the Bank otherwise consents in writing, Borrower
shall not, directly or indirectly:
A. Indebtedness, Mortgages and Liens. Create, incur,
assume, or allow to exist, voluntarily or involuntarily, any
obligation for borrowed money, lease, pledge, lien or other
encumbrance of any kind (including the charge upon property
purchased under conditional sales or other title retention
agreements) upon, or any security interest in, any of their
assets, whether now owned or hereafter acquired, excluding only
(i) interests or borrowings held by the Bank, (ii) interests or
borrowings in existence on the date hereof and fully disclosed on
the financial statements referred to in Article VI D hereof,
(iii) involuntary liens of any kind being contested in good faith
by appropriate legal proceedings with respect to which
enforcement has been stayed, (iv) purchase money liens, (v)
obligations under the Indenture dated January 24, 1995 between
the Borrower and American Stock Transfer and Trust Company, as
Trustee, with respect to up to $5,000,000 principal amount of
8.5% Convertible Senior Subordinated Debentures due January 15,
2005 so long as such obligations are not modified and so long as
such obligations remain expressly subordinated to the obligations
of the Borrower to the Bank in form satisfactory to the Bank, and
(vi) indebtedness to other financial institutions provided that
the opportunity to finance such indebtedness on similar terms has
been given to the Bank and the Bank has refused to provide such
financing.
B. Contingent Liabilities. Assume, guarantee,
endorse, contingently agree to purchase, or otherwise become
liable in any manner upon any obligation, contingent or
otherwise, whether funded or current, or guarantee the dividends
of any person, firm, corporation, or other entity, except for
endorsement of negotiable instruments for deposit or collection,
or similar transactions (including customary indemnity agreements
with distributors) in the ordinary course of business, and except
in connection with asset purchases.
C. Loans. Make loans or advances to any person or
entity, or investments of any kind in any person or entity;
provided however, that Borrower may make (i) loans or advances
to, or investments in, wholly owned subsidiary corporations which
are guarantors of its obligations hereunder and (ii) short term
loans or advances in reasonable amounts to officers and employees
in the ordinary course of business for relocation or similar
purposes.
D. Mergers, Sales and Acquisitions. Enter into any
merger or consolidation with or among any person or entity, or
sell, lease, transfer, or otherwise dispose of substantially all
of its assets, or allow a transfer of any controlling interest in
the Borrower.
E. Amendments. Amend or modify its Certificates of
Incorporation, By-laws, or other governing instruments in any
manner that would be materially adverse to the interests of the
Bank hereunder.
F. Judgments. Allow any liens other than those
expressly permitted by this Agreement or final judgments to exist
against it other than liens or judgments which are bonded or
covered by insurance or for which an appeal or other proceeding
for the review thereof shall have been taken and for which a stay
of execution pending such appeal shall have been obtained.
G. Material Changes. Permit any material adverse
change to be made in the basic character of its business or in
the nature of its operations as carried on at the date of
execution of this Agreement.
H. [Intentionally Omitted]
I. Dividends. Declare any cash, property, or other
dividends with respect to their capital stock, apply any of their
property or assets to the purchase, redemption, or other
retirement of their capital stock, or make any other distribution
of any kind with respect to any of their capital stock.
J. Total Liabilities To Net Worth. Permit the ratio,
calculated by GAAP, of its total balance sheet liabilities to
total balance sheet net worth plus outstanding indebtedness under
the 8.5% Convertible Senior Subordinated Debentures due January
15, 2005 as described in Article VIII.A. of this Agreement,
measured as of each of its quarterly financial statements, to
exceed (i) 5.1 to 1 through April 29, 1992, (ii) 4.5 to 1.0
commencing April 30, 1992 through April 29, 1993, (iii) 4.0 to
1.0 commencing April 30, 1993 through April 29, 1994, (iv) 3.5 to
1.0 commencing April 30, 1994 through April 29, 1995, (v) 3.0 to
1.0 commencing April 30, 1995 through August 31, 1995, and (vi)
2.5 to 1.0 commencing September 1, 1995 and thereafter.
ARTICLE IX - DEFAULTS
A. Defaults. The following events (hereinafter called
"Events of Default") shall constitute defaults under this
Agreement and under any notes or agreements executed in
connection herewith. Such Events of Default also shall be deemed
to be events of default with respect to Borrower's pre-existing
loans from the Bank.
1. Nonpayment. Failure of Borrower to make any
payments of any type under the terms of this Agreement,
or of any of the agreements contemplated hereunder, or
under the terms of any notes hereunder, within fifteen
days after the same become due and payable.
2. Performance. Failure of Borrower to observe
or perform any other condition, covenant, or term of
this Agreement or of any other agreement with the Bank,
after 30 days prior notice and opportunity to cure.
3. Reports. Failure of Borrower to provide any
report or financial statement or certificate of no
default, or to allow any inspection for which this
Agreement provides after 30 days prior notice and
opportunity to cure.
4. Representations. Failure of any
representation or warranty made by Borrower in
connection with the execution and performance of this
Agreement, or any certificate of officers pursuant
hereto, to be truthful, accurate or correct in any
material respect.
5. Financial Difficulties. Financial
difficulties of Borrower as evidenced by:
a. any admission in writing of inability to
pay debts as they become due; or
b. the filing of a voluntary or involuntary
petition in bankruptcy, or under any chapters of
the Bankruptcy Code, or under any Federal or state
statute providing for the relief of debtors; or
c. making an assignment for the benefit of
creditors; or
d. consenting to the appointment of a
trustee or receiver for all or a material part of
any of its property; or
e. the entry of a court order appointing a
receiver or a trustee for all or a material part
of any of its property; or
f. the occurrence of any event, action, or
transaction which could give rise to a lien or
encumbrance on Borrower's assets as a result of
application of relevant provisions of ERISA; or
g. entry of any judgment against Borrower
not fully covered by insurance and not discharged
or bonded for 60 days and for which a stay
pending appeal has not been obtained; or
h. default by the Borrower under any other
material obligation for borrowed money or its
equivalent.
6. Cross-Default. Default by Borrower under any
other material obligation to the Bank outstanding at
any time.
7. Mortgage Options. Failure by Borrower to
provide a marketable first mortgage lien to Bank on
properties mortgaged in Columbia County, Pennsylvania
(Buckhorn) and Livingston County, New York (Dansville -
lien on ground leasehold interest) at such time as
Borrower's option to purchase the premises must be
exercised or is exercisable in the ordinary course.
B. Remedies. If any one or more Events of Default
occur, the Bank may, at its option, take either or both of the
following actions at the same or different times: (i) terminate
any further commitments or obligations of the Bank, and (ii)
accelerate all obligations of Borrower to the Bank such that the
same become forthwith due and payable without presentment,
demand, protest, or other notice of any kind, all of which are
hereby expressly waived.
In case any such Events of Default shall occur, the
Bank shall be entitled to use any legal remedy, and the Bank
shall be entitled to recover judgment against the Borrower for
all obligations of Borrower to the Bank either before, or after,
or during the pendency of any proceedings for the enforcement of
any security interests, mortgages or guarantees and, in the event
of realization of any funds from any security or guarantee and
application thereof to the payment of the obligations due, the
Bank shall be entitled to enforce payment of and recover judgment
for all amounts remaining due and unpaid upon such obligations.
The Bank may proceed to protect and enforce its rights by any
other appropriate proceedings, including action for the specific
performance of any covenant or agreement contained in this
Agreement and other agreements contemplated hereunder held by the
Bank.
ARTICLE X - MISCELLANEOUS
A. Waiver. No delay or failure of the Bank to
exercise any right, remedy, power or privilege hereunder shall
impair the same or be construed to be a waiver of the same or of
any Event of Default or acquiescence therein. No single or
partial exercise of any right, remedy, power or privilege shall
preclude other or further exercise thereof by the Bank. All
rights, remedies, powers, and privileges herein conferred upon
the Bank shall be deemed cumulative and not exclusive of any
others available.
B. Survival of Representations. All representations
and warranties contained herein shall survive the execution and
delivery of this Agreement and the execution and delivery of
other agreements hereunder, and shall continue in full force and
effect so long as any obligation of the Borrower to the Bank is
outstanding.
C. Set-off. The Bank shall have a right of set-off,
in the full amount of all of Borrower's obligations to the Bank,
against any deposits, assets held by, or other amounts owed by
the Bank to or held by the Bank for, the Borrower as well as a
lien on any and all property of the Borrower, which is or may be
in the Bank's possession.
D. Notices. Any notice or demand upon the Borrower
shall be deemed to have been sufficiently given or served for all
purposes thereof when delivered by courier or mailed, first
class, postage prepaid, addressed to the Borrower at the address
shown in this Agreement, or to such other address as may be
furnished in writing to the Bank for such purpose by the
Borrower.
Any notice or demand to the Bank shall be deemed to
have been sufficiently given or served for all purposes hereof
when delivered by courier or mailed, first class, postage
prepaid, to the Bank at the address shown in this Agreement, or
to such other address as may be furnished in writing to the
Borrower for such purpose by the Bank.
E. Business Days. Whenever any payment is due, or
obligation is to be performed hereunder of a Saturday, Sunday, or
banking holiday, such payment may be made or obligation performed
on the next succeeding business day. Such extension of time
shall, in such case, be included in the computation of any
interest or fees.
F. Entire Agreement. This Agreement embodies the
entire agreement and understanding between the Bank and the
Borrower and supersedes all prior agreements and understandings
relating to the subject matter hereof. This Agreement shall not
be changed or amended without the written agreement of both the
Borrower and the Bank.
G. Parties in Interest. All the terms and provisions
of this Agreement shall inure to the benefit of and be binding
upon and be enforceable by the respective successors and assigns
of the parties hereto and, in particular, shall inure to the
benefit of and be enforceable by any holder of notes executed
hereunder.
H. Governing Law. This Agreement and the notes and
agreements related hereto, together with all of the rights and
obligations of the parties hereto, shall be construed, governed,
and enforced in accordance with the laws of the State of New
York.
I. Agreement Covers All Indebtedness. This Agreement
is intended to cover all indebtedness of the Borrower to the Bank
existing now or in the future, whether or not portions of the
indebtedness are from time to time repaid or new indebtedness is
created, unless otherwise expressly agreed in writing by the
Bank.
ARTICLE XI - ENVIRONMENTAL MATTERS
A. Definitions. For purposes of this Article XI, the
following capitalized terms shall have the meanings indicated:
"Environment" means any water including but not
limited to surface water and ground water or water
vapor; any land including land surface or subsurface;
stream sediments; air; fish; wildlife; plants; and all
other natural resources or environmental media.
"Environmental Laws" means all federal, state and
local environmental, land use, zoning, health, chemical
use, safety and sanitation laws, statutes, ordinances,
regulations, codes and rules relating to the protection
of the Environment and/or governing the use, storage,
treatment, generation, transportation, processing,
handling, production or disposal of Hazardous
Substances and the regulations, rules, ordinances,
bylaws, policies, guidelines, procedures,
interpretations, decisions, orders and directives of
federal, state and local governmental agencies and
authorities with respect thereto.
"Environmental Permits" means all licenses,
permits, approvals, authorizations, consents or
registrations required by any applicable Environmental
Laws and all applicable judicial and administrative
orders in connection with ownership, lease, purchase,
transfer, closure, use and/or operation of the
Mortgaged Property and/or as may be required for the
storage, treatment, generation, transportation,
processing, handling, production or disposal of
Hazardous Substances.
"Environmental Report" means a written report
prepared for the Mortgagor or the Mortgagee by an
environmental consulting or environmental engineering
firm.
"Hazardous Substances" means, without limitation,
any explosives, radon, radioactive materials, asbestos,
urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum and petroleum products, methane,
hazardous materials, hazardous wastes, hazardous or
toxic substances and any other material defined as a
hazardous substance in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601, et. seq.; the
Hazardous Materials Transportation Act, as amended, 49
U.S.C. Sections 1801, et. seq.; the Resource Conserva
tion and Recovery Act, as amended, 42 U.S.C. Sections
6901, et. seq.; Articles 15 and 27 of the New York
State Environmental Conservation Law or any other
federal, state, or local law, regulation, rule,
ordinance, bylaw, policy, guideline, procedure,
interpretation, decision, order, or directive, whether
existing as of the date hereof, previously enforced or
subsequently enacted.
"Mortgagee" means the Bank.
"Mortgagor" means the Borrower, and to the extent
that the mortgagor of the Mortgaged Property is
different from the Borrower, the Borrower will cause
the mortgagor to be bound by the representation, terms
and conditions of this Article XI.
"Mortgaged Property" means the properties covered
by the mortgages referenced in Article IV of this
Agreement as well as any other properties owned or
occupied or used by Mortgagor.
"Release" has the same meaning as given to that
term in Section 101(22) of the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601(22), and
the regulations promulgated thereunder.
B. Representations. The Mortgagor represents and
warrants that, to the best of Mortgagor's knowledge, except as
indicated in any Report provided to Mortgagee prior to the date
hereof and except with respect to properties located in
Fultonville (Montgomery County, New York), Paulsboro (Gloucester
County, New Jersey), Binghamton (Broome County, New York), Porter
(Porter County, Indiana), Bloomsburg (Columbia County,
Pennsylvania), and Milesburg (Luzerne County, Pennsylvania) which
have been the subject of disclosures by the Borrower to the Bank
regarding environmental matters:
(1) Neither the Mortgaged Property nor any
property adjacent to the Mortgaged Property is being or
has been used for the storage, treatment, generation,
transportation, processing, handling, production or
disposal of any Hazardous Substance or as a landfill or
other waste disposal site or for military, manufac
turing or industrial purposes or for the storage of
petroleum or petroleum based products except in
compliance with all Environmental Laws.
(2) Underground storage tanks are not and
have not been located on the Mortgaged Property except
in compliance with all Environmental Laws.
(3) The soil, subsoil, bedrock, surface
water and groundwater of the Mortgaged Property are
free of any Hazardous Substances.
(4) There has been no Release nor is there
the threat of a Release of any Hazardous Substance on,
at or from the Mortgaged Property or any property
adjacent to or within the immediate vicinity of the
Mortgaged Property which through soil, subsoil,
bedrock, surface water or groundwater migration could
come to be located on the Mortgaged Property, and
Mortgagor has not received any form of notice or
inquiry from any federal, state or local governmental
agency or authority, any operator, tenant, subtenant,
licensee or occupant of the Mortgaged Property or any
property adjacent to or within the immediate vicinity
of the Mortgaged Property or any other person with
regard to a Release or the threat of a Release of any
Hazardous Substance on, at or from the Mortgaged
Property or any property adjacent to the Mortgaged
Property.
(5) All Environmental Permits have been
obtained and are in full force and effect.
(6) No event has occurred with respect to
the Mortgaged Property which would constitute a
violation of any applicable Environmental Law or non-
compliance with any Environmental Permit.
(7) There are no agreements, consent orders,
decrees, judgments, license or permit conditions or
other orders or directives of any federal, state or
local court, governmental agency or authority relating
to the past, present or future ownership, use,
operation, sale, transfer or conveyance of the
Mortgaged Property which require any change in the
present condition of the Mortgaged Property or any
work, repairs, construction, containment, clean up,
investigations, studies, removal or other remedial
action or capital expenditures with respect to the
Mortgaged Property.
(8) There are no actions, suits, claims or
proceedings, pending or threatened, which could cause
the incurrence of expenses or costs of any name or
description or which seek money damages, injunctive
relief, remedial action or any other remedy that arise
out of, relate to or result from (a) a violation or
alleged violation of any applicable Environmental Law
or non-compliance or alleged non-compliance with any
Environmental Permit, (b) the presence of any Hazardous
Substance or a Release or the threat of a Release of
any Hazardous Substance on, at or from the Mortgaged
Property or any property adjacent to or within the
immediate vicinity of the Mortgaged Property or (c)
human exposure to any Hazardous Substance, noises,
vibrations or nuisances of whatever kind to the extent
the same arise from the condition of the Mortgaged
Property or the ownership, use, operation, sale,
transfer or conveyance thereof.
C. Covenants. The Mortgagor covenants and agrees
with the Mortgagee that so long as the Mortgagee holds liens on
the Mortgaged Property or any of it, that the Mortgagor shall:
(1) Keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the
Mortgaged Property to keep, the Mortgaged Property free
of all Hazardous Substances except in compliance with
all Environmental Laws, and shall not cause or permit
the Mortgaged Property or any part thereof to be used
for the storage, treatment, generation, transportation,
processing, handling, production or disposal of any
Hazardous Substances except in compliance with all
Environmental Laws.
(2) Comply with, and shall cause all
operators, tenants, subtenants, licensees and occupants
of the Mortgaged Property to comply with all applicable
Environmental Laws and shall obtain and comply with,
and shall cause all operators, tenants, subtenants,
licensees and occupants of the Mortgaged Property to
obtain and comply with, all Environmental Permits.
(3) Not cause or permit any change to be
made in the present or intended use of the Mortgaged
Property which would (a) involve the storage,
treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous
Substance or the use of the Mortgaged Property as a
landfill or other waste disposal site or for military,
manufacturing or industrial purposes or for the storage
of petroleum or petroleum based products, except in
compliance with all Environmental Laws, (b) violate any
applicable Environmental Law, (c) constitute non-
compliance with any Environmental Permit or (d)
increase the risk of a Release of any Hazardous
Substance.
(4) Promptly provide Mortgagee with a copy
of all notifications which it gives or receives with
respect to any past or present Release or the threat of
a Release of any Hazardous Substance on, at or from the
Mortgaged Property or any property adjacent to the
Mortgaged Property.
(5) Undertake and complete all
investigations, studies, sampling and testing and all
removal and other remedial actions required by law to
contain, remove and clean up all Hazardous Substances
that are determined to be present at the Mortgaged
Property in accordance with all applicable
Environmental Laws and all Environmental Permits.
(6) At all times allow Mortgagee and its
officers, employees, agents, representatives,
contractors and subcontractors reasonable access after
reasonable prior notice to the Mortgaged Property for
the purposes of ascertaining site conditions,
including, but not limited to, subsurface conditions.
(7) Deliver promptly to the Mortgagee: (a)
copies of any documents received from the Untied States
Environmental Protection Agency, or any state, county
or municipal environmental or health agency concerning
the Mortgagor's operations at the Mortgaged Property;
and (b) copies of any documents submitted by the
Mortgagor to the United States Environmental Protection
Agency or any state, county or municipal environmental
or health agency concerning its operations at the
Mortgaged Property.
(8) If at any time Mortgagee obtains any
reasonable evidence or information which suggests that
a material potential environmental problem may exist at
the Mortgaged Property, Mortgagee may require that a
full or supplemental environmental inspection and audit
report with respect to the Mortgaged Property of a
scope and level of detail satisfactory to Mortgagee be
prepared by an environmental engineer or other
qualified person acceptable to Mortgagee at Mortgagor's
expense. Such audit may include a physical inspection
of the Mortgaged Property, a visual inspection of any
property adjacent to or within the immediate vicinity
of the Mortgaged Property, personnel interviews and a
review of all Environmental Permits. If Mortgagee
requires, such inspection shall also include a records
search and/or subsurface testing for the presence of
Hazardous Substances in the soil, subsoil, bedrock,
surface water and/or groundwater. If such audit report
indicates the presence of any Hazardous Substance or a
Release or the threat of a Release of any Hazardous
Substance on, at or from the Mortgaged Property,
Mortgagor shall promptly undertake and diligently
pursue to completion all necessary, appropriate and
legally authorized investigative, containment, removal,
clean up and other remedial actions, using methods
recommended by the engineer or other person who
prepared said audit report and acceptable to the
appropriate federal, state and local agencies or
authorities.
D. Indemnity. The Mortgagor agrees to indemnify,
defend, and hold harmless the Mortgagee from and against any and
all liabilities, claims, damages, penalties, expenditures,
losses, or charges, including, but not limited to, all costs of
investigation, monitoring, legal representation, remedial
response, removal, restoration or permit acquisition of any kind
whatsoever, which may now or in the future be undertaken,
suffered, paid, awarded, assessed, or otherwise incurred by the
Mortgagee or any other person or entity relating to, resulting
from or arising out of (1) the use of the Mortgaged Property for
the storage, treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous Substance or as
a landfill or other waste disposal site or for military,
manufacturing or industrial purposes or for the storage of
petroleum or petroleum based products, (2) the presence of any
Hazardous Substance or a Release or the threat of a Release of
any Hazardous Substance on, at or from the Mortgaged Property,
(3) the failure to promptly undertake and diligently pursue to
completion all necessary, appropriate and legally authorized
investigative, containment, removal, clean up and other remedial
actions with respect to a Release or the threat of a Release of
any Hazardous Substance on, at or from the Mortgaged Property,
(4) human exposure to any Hazardous Substance, noises, vibrations
or nuisances of whatever kind to the extent the same arise from
the condition of the Mortgaged Property or the ownership, use,
operation, sale, transfer or conveyance thereof, (5) a violation
of any applicable Environmental Law, (6) non-compliance with any
Environmental Permit or (7) a material misrepresentation or
inaccuracy in any representation or warranty or a material breach
of or failure to perform any covenant made by Mortgagor in this
Mortgage. Such costs or other liabilities incurred by the
Mortgagee or any other person or entity shall be deemed to
include, without limitation, any sums which the Mortgagee deems
it necessary or desirable to expend to protects its security
interest in the Mortgaged Property.
The liability of Mortgagor hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (1) any
amendment or modification of this Mortgage or any other document
relating to the obligations covered by this Agreement by or for
the benefit of Mortgagor or any subsequent owner of the Mortgaged
Property, (2) any extensions of time for payment or performance
required by any of this Mortgage or any other document relating
to the obligations covered by this Agreement, (3) the release of
Mortgagor, any guarantor or any other person from the performance
or observance of any of the agreements, covenants, terms or
conditions contained in this Agreement or any other document
relating to the obligations covered hereby by operation of law,
Mortgagee's voluntary act or otherwise, (4) the invalidity or
unenforceability of any of the terms of provisions of this
Agreement or any other mortgage or document relating to the
obligations covered by this Agreement, (5) any exculpatory
provision contained in this Agreement or any other mortgage or
document relating to the obligations covered by this Agreement
limiting Mortgagee's recourse to the Mortgaged Property or to any
other security or limiting Mortgagee's rights to a deficiency
judgment against Mortgagor, (6) any applicable statute of limita
tions, (7) any investigation or inquiry conducted by or on the
behalf of Mortgagee or any information which Mortgagee may have
or obtain with respect to the environmental or ecological
condition of the Mortgaged Property, (8) the sale, assignment or
foreclosure of any mortgage covering the Mortgaged Property, (9)
the sale, transfer or conveyance of all or part of the Mortgaged
Property, (10) the dissolution and liquidation of Mortgagor, (11)
the release or discharge, in whole or in part, of Mortgagor in
any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding or
(12) any other circumstances which might otherwise constitute a
legal or equitable release or discharge of Mortgagor, in whole or
in part.
E. Survival. Notwithstanding anything to the contrary
contained herein, the Mortgagor's liability shall survive the
discharge, satisfaction or assignment of this Agreement and any
mortgages covered hereby by the Mortgagee until all of the
following conditions are satisfied in full:
(1) all principal, interest and other sums
evidenced or covered by this Agreement and the
documents, notes, mortgages and other agreements
related hereto and any other costs and expenses
incurred by Mortgagee in connection with this Agreement
and the obligations covered hereby are paid in full by
Mortgagor or by any guarantor;
(2) neither Mortgagee nor any affiliate of
Mortgagee has at any time or in any manner participated
in the management or control of, taken possession of or
title to the Mortgaged Property or any portion thereof,
whether by foreclosure, deed in lieu of foreclosure or
otherwise, or had the capacity or ability to
participate in the decisions or actions of the
Mortgagor as the same relate to Hazardous Substances;
(3) between the date of this Agreement and
the date on which all obligations covered hereby are
paid in full, as provided in clause (1) above, there
has been no change in any applicable Environmental Law
which would make a lender or mortgagee liable in
respect of any of the indemnified matters contained in
this Article XI notwithstanding the fact that no event,
circumstance or condition of the nature described in
clause (2) above ever occurred; and
(4) there exist no indemnified matters which
are then pending.
F. Default. If the Mortgagor defaults on any of its
obligations pursuant to this Agreement or any other document,
mortgage, note, or agreement related hereto, the Mortgagee or its
designee shall have the right, upon reasonable notice to the
Mortgagor, to enter upon the Mortgaged Property and conduct such
tests, investigation and sampling, including but not limited to
installation of monitoring wells, as shall be reasonably
necessary for the Mortgagee to determine whether any disposal of
Hazardous Substances has occurred on, at or near the Mortgaged
Property. The costs of all such tests, investigations and
samplings shall be considered as additional indebtedness secured
hereby and shall become immediately due and payable without
notice and with interest thereon at the rate provided in the Term
Loan Note.
G. No Reliance On Information. The Mortgagor agrees
that the Mortgagee shall not be liable in any way for the
completeness or accuracy of any Environmental Report or the
information contained therein. The Mortgagor further agrees that
the Mortgagee has no duty to warn the Mortgagor or any other
person or entity about any actual or potential environmental
contamination or other problem that may have become apparent or
will become apparent to Mortgagee.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized, respective officers as
of the date first above written.
FLEET BANK
By:
Title:
TRAVEL PORTS OF AMERICA, INC.
By:
Title:
INDEX TO EXHIBITS
Exhibit A - Term Loan Note
Exhibit B - Revolving Line
Exhibit C - 1994 Loan Note
Exhibit D - Erie Line Note
Exhibit E - Erie Loan Note
EXHIBIT A
TERM LOAN NOTE
$ 10,500,000 September 29, 1994
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC., a
New York corporation, with offices at 3495 Winton Place, Building
C, Rochester, New York 14623 ("Borrower"), promises to pay to
FLEET BANK, a New York bank and trust company with offices at One
East Avenue, Rochester, New York 14638 ("Bank"), or order, at One
East Avenue, Rochester, New York 14638, or at such other place as
may be designated, from time to time, in writing by Bank, the
principal sum of Ten Million Five Hundred Thousand Dollars
($10,500,000) in lawful money of the United States of America,
with interest thereon (the "Debt") from the date of this Term
Loan Note until paid.
Outstanding principal balances under this Term Loan
Note shall bear interest at ten and twelve/hundredths percent
(10.12%) calculated based on actual days elapsed in a year of 360
days.
Interest shall continue to accrue after maturity at the
rate required by this Term Loan Note until this Term Loan Note is
paid in full. The rate of interest on this Term Loan Note may be
increased under the circumstances provided in the Amended and
Restated Credit Agreement between the Borrower and the Bank dated
September 29, 1994, as the same may be modified, extended, or
replaced from time to time (the "Credit Agreement"). The right of
Bank to receive such increased rate of interest shall not
constitute a waiver of any other right or remedy of Bank.
A payment of all interest accrued hereunder shall be
due and payable on the first day of each month commencing on
October 1, 1994 and continuing through March 1, 1995. On the
first day of each month commencing on April 1, 1995, a combined
principal and interest payment of $166,957.84 shall be due and
payable. Payments shall be applied first to accrued interest and
then to principal. In the event that any payment is insufficient
to pay all accrued interest, all such accrued interest shall be
immediately payable and the Bank reserves the right to adjust the
monthly payment amount to an amount deemed reasonably sufficient
to fully amortize the principal and interest of this Term Loan
Note by September 29, 2002 (the "Maturity Date"). All remaining
principal and interest shall be due and payable in full on the
Maturity Date.
The Borrower may prepay, in whole or in part, this Term
Loan Note at any time. The prepayment shall be accompanied by a
prepayment charge computed as follows:
The latest available yield preceding the date of
prepayment, as available through active market trading
or published in the Wall Street Journal, for United
States Treasury Notes or Bills (with Bills on a
discounted basis converted to a bond equivalent) with a
maturity date closest to September 29, 2002 shall be
subtracted from 7.62%. If the result is zero or a
negative number, there shall be no prepayment charge.
If the result is a positive number, then the resulting
percentage shall (i) be multiplied by the principal
amount prepaid, then (ii) divided by 360, then (iii)
multiplied by the number of days remaining prior to
September 29, 2002, and then (iv) reduced to a present
value calculated using the above referenced Treasury
Note or Bill yield. The resulting amount shall be the
amount of the prepayment charge due to the Bank.
Principal prepayments shall be applied first to
interest accrued on the amount prepaid, and then to principal in
inverse order of maturity.
The term "Mortgage" as used in this Term Loan Note
shall mean the mortgages, as amended, extended, and replaced from
time to time, referenced in the Credit Agreement as more
particularly described therein.
If any sum payable under this Term Loan Note is not
paid within 10 days after the date on which it is due, Borrower
shall pay a late charge of four percent (4%) of such unpaid sum.
IT IS HEREBY EXPRESSLY AGREED that the entire unpaid
principal balance of this Term Loan Note, together with all
interest accrued and unpaid thereon and all other sums due under
this Term Loan Note and the Mortgage shall without notice become
immediately due and payable at the option of the Bank on the
failure to observe any term or condition hereunder or on the
happening of any default or event by which, under the terms of
the Mortgage or the Credit Agreement, the indebtedness may or
shall become due and payable. All of the terms, covenants and
provisions contained in the Mortgage and the Credit Agreement
which are to be kept and performed by Borrower are hereby made
part of this Term Loan Note to the same extent and with the same
force and effect as if they were fully set forth herein.
Borrower hereby waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of
this Term Loan Note and agrees to pay all costs of collection
when incurred, including reasonable attorney's fees, such costs
may be added to the amount due under this Term Loan Note and be
receivable therewith and to perform and comply with each of the
terms, covenants and provisions contained in this Term Loan Note
and the Mortgage on the part of Borrower to be observed or
performed. No release of any security for the principal sum due
under this Term Loan Note or extension of time for payment of
this Term Loan Note, or any installment hereof, or acceptance of
partial payments hereunder, and no alteration, amendment or
waiver of any provision of this Term Loan Note and Mortgage made
by agreement between Bank and any other person or party shall
release, discharge, modify, change or affect the liability of
maker under this Term Loan Note or the Mortgage.
This Term Loan Note is subject to the express condition
that at no time shall Borrower be obligated or required to pay
interest on the principal balance of this Term Loan Note at a
rate which could subject Bank to either civil or criminal
liability as a result of being in excess of the maximum rate
which Borrower is permitted by law to contract or agree to pay.
If by the terms of this Term Loan Note, Borrower is at any time
required or obligated to pay interest on the principal balance of
this Term Loan Note at a rate in excess of such maximum rate, the
rate of interest under this Term Loan Note shall be deemed to be
immediately reduced to such maximum rate and interest payable
hereunder shall be computed at such maximum rate and the portion
of all prior interest payments in excess of such maximum rate
shall be applied and shall be deemed to have been payments in
reduction of the principal balance of this Term Loan Note.
If any payment hereunder becomes due on a Saturday,
Sunday, or other holiday on which banks doing business in New
York are authorized to close, the due date for this note or the
payment may be extended to the next succeeding business day, but
interest and fees shall be calculated based upon the time of
actual payment.
Bank may set off toward payment of any obligations
under this Term Loan Note any indebtedness due or to become due
from Bank to Borrower and any moneys or other property of
Borrower in possession of Bank at any time.
This Term Loan Note is secured by the Mortgage.
This Term Loan Note may not be changed or terminated
orally, but only by an agreement in writing signed by the party
against whom enforcement of such change or termination is sought.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Bank" and
"Borrower" shall include their respective successors and assigns.
This Term Loan Note shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, Borrower by its duly authorized
officers has duly executed this Term Loan Note the day and year
first above written.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:_______________________
EXHIBIT B
REVOLVING LINE NOTE
$2,750,000 September __, 1995
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC.
("Borrower") hereby promises to pay to the order of FLEET BANK
("Bank"), the principal sum of Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000) or if less, the aggregate unpaid
principal amount of all advances made by Bank of Borrower. The
Bank shall maintain a record of amounts of principal and interest
payable by Borrower from time to time, and the records of the
Bank maintained in the ordinary course of business shall be prima
facie evidence of the existence and amounts of Borrower's
obligations recorded therein. In the event of transfer of this
Revolving Line Note, or if the Bank shall otherwise deem it
appropriate, the Borrower hereby authorizes the Bank to endorse
on this Revolving Line Note the amount of advances and payments
to reflect the principal balance outstanding from time to time.
The Bank may send written confirmation of advances to Borrower
but any failure to do so shall not relieve the Borrower of the
obligation to repay any advance.
This Revolving Line Note shall bear interest at a rate
equal to the "Prime Rate" plus one-half percentage point (1/2%)
calculated based on actual days elapsed in a year of 360 days.
All changes in the interest rate due to a change in the Prime
Rate shall take place automatically and without notice to
Borrower as of the effective date of the change in the Prime
Rate. For purposes of this Agreement, the "Prime Rate" is the
Bank's rate of interest stated by the Bank from time to time to
be its prime rate (irrespective of any rate charged to any
customer in any actual transaction).
Interest shall continue to accrue after maturity at the
rate required by this Revolving Line Note until this Revolving
Line Note is paid in full. The rate of interest on this
Revolving Line Note may be increased under the circumstances
provided in the Amended and Restated Credit Agreement between the
Borrower and the Bank dated September 29, 1994, as the same has
been and may be modified, extended, or replaced from time to time
(the "Credit Agreement"). The right of Bank to receive such
increased rate of interest shall not constitute a waiver of any
other right or remedy of Bank.
All interest accrued under this Revolving Line Note
shall be due and payable on the first day of each month.
Principal payments shall be due and payable sufficient to assure
that the aggregate principal amount outstanding under the
Revolving Line never exceeds the amount then available under the
Borrowing Formula described in Article I, Section B of the Credit
Agreement, and also sufficient to assure that there is no
outstanding principal under the Revolving Line for at least
thirty (30) consecutive days between each September 1 and the
next succeeding August 31. All remaining principal and interest
shall be due and payable in full on the date of expiration of the
Revolving Line as specified in the Credit Agreement. Payments may
be made pursuant to a mutually agreeable cash management
arrangement with the Bank. All payments shall be in lawful money
of the United States in immediately available funds.
Any payment not received within ten days of when due
may be subject to an additional late charge equal to 5% of the
payment due.
If this Revolving Line Note or any payment hereunder
becomes due on a Saturday, Sunday or other holiday on which the
Bank is authorized to close, the due date for the Revolving Line
Note or payment shall be extended to the next succeeding business
day, but any interest or fees shall be calculated based upon the
actual time of payment.
This Revolving Line Note is freely prepayable in whole
or in part at the option of the Borrower without premium or
penalty.
This Revolving Line Note shall, at the Bank's option,
become immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby
expressly waived, upon the happening of any Event of Default
under the Credit Agreement.
This Revolving Line Note is subject to the express
condition that at no time shall Borrower be obligated or required
to pay interest on the principal balance of this Revolving Line
Note at a rate which could subject Bank to either civil or
criminal liability as a result of being in excess of the maximum
rate which Borrower is permitted by law to contract or agree to
pay. If by the terms of this Revolving Line Note, Borrower is at
any time required or obligated to pay interest on the principal
balance of this Revolving Line Note at a rate in excess of such
maximum rate, the rate of interest under this Revolving Line Note
shall be deemed to be immediately reduced to such maximum rate
and interest payable hereunder shall be computed at such maximum
rate and the portion of all prior interest payments in excess of
such maximum rate shall be applied and shall be deemed to have
been payments in reduction of the principal balance of this
Revolving Line Note.
The terms of this Revolving Line Note cannot be
changed, nor may this Revolving Line Note be discharged in whole
or in part, except by a writing executed by the holder. In the
event that holder demands or accepts partial payments of this
Revolving Line Note, such demand or acceptance shall not be
deemed to constitute a waiver of the right to demand the entire
unpaid balance of this Revolving Line Note at any time in
accordance with the terms hereof. Any delay by holder in
exercising any rights hereunder shall not operate as a waiver of
such rights.
Bank may set off toward payment of any obligations
under this Revolving Line Note any indebtedness due or to become
due from Bank to Borrower and any moneys or other property of
Borrower in possession of Bank at any time.
Borrower on demand shall pay all expenses of Bank,
including without limitation reasonable attorneys' fees, in
connection with enforcement and collection of this Revolving Line
Note.
This Revolving Line Note shall be governed by the laws
of the State of New York.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Bank" and
"Borrower" shall include their respective successors and assigns.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:________________________
EXHIBIT C
1994 Loan Note
$ 2,500,000 June 30, 1994
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC., a
New York corporation, with offices at 3495 Winton Place, Building
C, Rochester, New York 14623 ("Maker"), promises to pay to FLEET
BANK OF NEW YORK, a New York bank and trust company with offices
at One East Avenue, Rochester, New York 14638 ("Payee"), or
order, at One East Avenue, Rochester, New York 14638, or at such
other place as may be designated, from time to time, in writing
by Payee, the principal sum of Two Million Five Hundred Thousand
Dollars ($2,500,000) in lawful money of the United States of
America, with interest thereon (the "Debt") from the date of this
Note until paid.
This Note shall bear interest per annum until paid in
full at nine and sixty-five one-hundredths percent (9.65%) per
annum, but never exceeding the maximum rate allowed by law.
Interest shall be calculated based on actual days elapsed divided
by a year of 360 days.
Payments of all accrued interest, plus payments of
principal of $20,833 each, shall be due on the fifteenth day of
every month commencing July 15, 1994 and continuing through the
Maturity Date. All remaining principal and interest hereunder
shall be due and payable on June 30, 1999 (the "Maturity Date").
The term "Mortgage" as used in this Note shall mean the
mortgage, as amended, extended, and replaced from time to time,
dated on or about the date of this Note given by Maker to Payee,
covering the interest of Maker in certain premises located in
Greenland, New Hampshire as more particularly described therein.
If any sum payable under this Note is not paid within
10 days after the date on which it is due, Maker shall pay a late
charge of four percent (4%) of such unpaid sum.
IT IS HEREBY EXPRESSLY AGREED that the entire unpaid
principal balance of this Note, together with all interest
accrued and unpaid thereon and all other sums due under this Note
and the Mortgage shall without notice become immediately due and
payable at the option of the Payee on the failure to observe any
term or condition hereunder or on the happening of any default or
event by which, under the terms of the Mortgage or the Restated
and Amended Credit Agreement between Maker and Payee dated June
30, 1994, as the same is modified, extended, or replaced from
time to time (the "Credit Agreement"), the indebtedness may or
shall become due and payable. All of the terms, covenants and
provisions contained in the Mortgage and the Credit Agreement
which are to be kept and performed by Maker are hereby made part
of this Note to the same extent and with the same force and
effect as if they were fully set forth herein.
Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note
and agrees to pay all costs of collection when incurred,
including reasonable attorney's fees, such costs may be added to
the amount due under this Note and be receivable therewith and to
perform and comply with each of the terms, covenants and
provisions contained in this Note and the Mortgage on the part of
Maker to be observed or performed. No release of any security
for the principal sum due under this Note or extension of time
for payment of this Note, or any installment hereof, or
acceptance of partial payments hereunder, and no alteration,
amendment or waiver of any provision of this Note and Mortgage
made by agreement between Payee and any other person or party
shall release, discharge, modify, change or affect the liability
of maker under this Note or the Mortgage.
This Note is subject to the express condition that at
no time shall Maker be obligated or required to pay interest on
the principal balance of this Note at a rate which could subject
Payee to either civil or criminal liability as a result of being
in excess of the maximum rate which Maker is permitted by law to
contract or agree to pay. If by the terms of this Note, Maker is
at any time required or obligated to pay interest on the
principal balance of this Note at a rate in excess of such
maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate and
interest payable hereunder shall be computed at such maximum rate
and the portion of all prior interest payments in excess of such
maximum rate shall be applied and shall be deemed to have been
payments in reduction of the principal balance of this Note.
If any payment hereunder becomes due on a Saturday,
Sunday, or other holiday on which banks doing business in New
York are authorized to close, the due date for this note or the
payment may be extended to the next succeeding business day, but
interest and fees shall be calculated based upon the time of
actual payment.
This Note is freely prepayable in whole, or in part, at
any time but any prepayment is subject to and must be accompanied
by a prepayment charge in an amount computed as follows:
The latest available yield preceding the date of
prepayment, as available through active market trading
or published in the Wall Street Journal, for United
States Treasury Notes or Bills (with Bills on a
discounted basis converted to a bond equivalent) with a
maturity date closest to the maturity date of this Note
shall be subtracted from 7.15%. If the result is zero
or a negative number, there shall be no prepayment
charge. If the result is a positive number, then the
resulting percentage shall (i) be multiplied by the
principal amount prepaid, then (ii) divided by 360,
then (iii) multiplied by the number of days remaining
prior to the maturity date of this Note, and then (iv)
reduced to a present value calculated using the above
referenced Treasury Note or Bill yield. The resulting
amount shall be the amount of the prepayment charge due
to the Bank.
Payee may set off toward payment of any obligations
under this Note any indebtedness due or to become due from Payee
to Maker and any moneys or other property of Maker in possession
of Payee at any time.
This Note is secured by the Mortgage.
The terms of this Note shall be governed by and
construed under the laws of the State of New York.
This Note may not be changed or terminated orally, but
only by an agreement in writing signed by the party against whom
enforcement of such change or termination is sought.
Maker and the undersigned representative of Maker
represent that Maker has full power, authority and legal right to
execute and deliver this Note and that the indebtedness hereunder
constitutes a valid and binding obligation of Maker.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Payee" and
"Maker" shall include their respective successors and assigns.
IN WITNESS WHEREOF, Maker by its duly authorized
officers has duly executed this Note the day and year first above
written.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:_______________________
EXHIBIT D
ERIE LINE NOTE
$3,500,000 December 21, 1995
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC.
("Borrower") hereby promises to pay to the order of FLEET BANK
("Bank"), the principal sum of Three Million Five Hundred
Thousand Dollars ($3,500,000) or if less, the aggregate unpaid
principal amount of all advances made by Bank of Borrower. The
Bank shall maintain a record of amounts of principal and interest
payable by Borrower from time to time, and the records of the
Bank maintained in the ordinary course of business shall be prima
facie evidence of the existence and amounts of Borrower's
obligations recorded therein. In the event of transfer of this
Erie Line Note, or if the Bank shall otherwise deem it
appropriate, the Borrower hereby authorizes the Bank to endorse
on this Erie Line Note the amount of advances and payments to
reflect the principal balance outstanding from time to time. The
Bank may send written confirmation of advances to Borrower but
any failure to do so shall not relieve the Borrower of the
obligation to repay any advance.
This Erie Line Note shall bear interest at a rate equal
to the "Prime Rate" plus one-half percentage point (1/2%)
calculated based on actual days elapsed in a year of 360 days.
All changes in the interest rate due to a change in the Prime
Rate shall take place automatically and without notice to
Borrower as of the effective date of the change in the Prime
Rate. For purposes of this Erie Line Note, the "Prime Rate" is
the Bank's rate of interest stated by the Bank from time to time
to be its prime rate (irrespective of any rate charged to any
customer in any actual transaction).
Interest shall continue to accrue after maturity at the
rate required by this Erie Line Note until this Erie Line Note is
paid in full. The rate of interest on this Erie Line Note may be
increased under the circumstances provided in the Amended and
Restated Credit Agreement between the Borrower and the Bank dated
December 21, 1995, as the same has been and may be modified,
extended, or replaced from time to time (the "Credit Agreement").
The right of Bank to receive such increased rate of interest
shall not constitute a waiver of any other right or remedy of
Bank.
All interest accrued under this Erie Line Note shall be
due and payable on the first day of each month. All remaining
principal and interest shall be due and payable in full on July
31, 1996, or on such earlier date as the Erie Loan Note (as
defined in the Credit Agreement) is made. All payments shall be
in lawful money of the United States in immediately available
funds.
Any payment not received within ten days of when due
may be subject to an additional late charge equal to 5% of the
payment due.
If this Erie Line Note or any payment hereunder becomes
due on a Saturday, Sunday or other holiday on which the Bank is
authorized to close, the due date for the Erie Line Note or
payment shall be extended to the next succeeding business day,
but any interest or fees shall be calculated based upon the
actual time of payment.
This Erie Line Note is freely prepayable in whole or in
part at the option of the Borrower without premium or penalty.
This Erie Line Note shall, at the Bank's option, become
immediately due and payable without presentment, demand, protest,
or other notice of any kind, all of which are hereby expressly
waived, upon the happening of any Event of Default under the
Credit Agreement.
This Erie Line Note is subject to the express condition
that at no time shall Borrower be obligated or required to pay
interest on the principal balance of this Erie Line Note at a
rate which could subject Bank to either civil or criminal
liability as a result of being in excess of the maximum rate
which Borrower is permitted by law to contract or agree to pay.
If by the terms of this Erie Line Note, Borrower is at any time
required or obligated to pay interest on the principal balance of
this Erie Line Note at a rate in excess of such maximum rate, the
rate of interest under this Erie Line Note shall be deemed to be
immediately reduced to such maximum rate and interest payable
hereunder shall be computed at such maximum rate and the portion
of all prior interest payments in excess of such maximum rate
shall be applied and shall be deemed to have been payments in
reduction of the principal balance of this Erie Line Note.
The terms of this Erie Line Note cannot be changed, nor
may this Erie Line Note be discharged in whole or in part, except
by a writing executed by the holder. In the event that holder
demands or accepts partial payments of this Erie Line Note, such
demand or acceptance shall not be deemed to constitute a waiver
of the right to demand the entire unpaid balance of this Erie
Line Note at any time in accordance with the terms hereof. Any
delay by holder in exercising any rights hereunder shall not
operate as a waiver of such rights.
Bank may set off toward payment of any obligations
under this Erie Line Note any indebtedness due or to become due
from Bank to Borrower and any moneys or other property of
Borrower in possession of Bank at any time.
Borrower on demand shall pay all expenses of Bank,
including without limitation reasonable attorneys' fees, in
connection with enforcement and collection of this Erie Line
Note.
This Erie Line Note shall be governed by the laws of
the State of New York.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Bank" and
"Borrower" shall include their respective successors and assigns.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:________________________
EXHIBIT E
ERIE LOAN NOTE
$__________ ________________
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC., a
New York corporation, with offices at 3495 Winton Place, Building
C, Rochester, New York 14623 ("Maker"), promises to pay to FLEET
BANK, a New York bank and trust company with offices at One East
Avenue, Rochester, New York 14638 ("Payee"), or order, at One
East Avenue, Rochester, New York 14638, or at such other place as
may be designated, from time to time, in writing by Payee, the
principal sum of ____________________________________ Dollars
($________________) in lawful money of the United States of
America, with interest thereon (the "Debt") from the date of this
Note until paid.
This Note shall bear interest per annum until paid in
full at (choose applicable rate at closing):
a) a rate equal to the "Prime Rate" plus
one-half percentage point (1/2%) calculated based
on actual days elapsed in a year of 360 days, but
never exceeding the maximum rate allowed by law.
All changes in the interest rate due to a change
in the Prime Rate shall take place automatically
and without notice to Borrower as of the effective
date of the change in the Prime Rate. For
purposes of this Note, the "Prime Rate" is the
Bank's rate of interest stated by the Bank from
time to time to be its prime rate (irrespective of
any rate charged to any customer in any actual
transaction), or
b) ________________ percent (_____%) per
annum. Interest shall be calculated based on
actual days elapsed divided by a year of 360 days.
Payments of all accrued interest, plus payments of
principal of $___________ each, shall be due on the first day of
every month and continuing through the Maturity Date. All
remaining principal and interest hereunder shall be due and
payable on the date ten (10) years after the date of this Note
(the "Maturity Date").
The term "Mortgage" as used in this Note shall mean the
mortgage, as amended, extended, and replaced from time to time,
dated on or about the date of this Note given by Maker to Payee,
covering the interest of Maker in certain premises located in
Harborcreek, Erie, Pennsylvania as more particularly described
therein.
If any sum payable under this Note is not paid within
10 days after the date on which it is due, Maker shall pay a late
charge of five percent (5%) of such unpaid sum.
IT IS HEREBY EXPRESSLY AGREED that the entire unpaid
principal balance of this Note, together with all interest
accrued and unpaid thereon and all other sums due under this Note
and the Mortgage shall without notice become immediately due and
payable at the option of the Payee on the failure to observe any
term or condition hereunder or on the happening of any default or
event by which, under the terms of the Mortgage or the Restated
and Amended Credit Agreement between Maker and Payee dated
December 21, 1995, as the same is modified, extended, or replaced
from time to time (the "Credit Agreement"), the indebtedness may
or shall become due and payable. All of the terms, covenants and
provisions contained in the Mortgage and the Credit Agreement
which are to be kept and performed by Maker are hereby made part
of this Note to the same extent and with the same force and
effect as if they were fully set forth herein.
Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note
and agrees to pay all costs of collection when incurred,
including reasonable attorney's fees, such costs may be added to
the amount due under this Note and be receivable therewith and to
perform and comply with each of the terms, covenants and
provisions contained in this Note and the Mortgage on the part of
Maker to be observed or performed. No release of any security
for the principal sum due under this Note or extension of time
for payment of this Note, or any installment hereof, or
acceptance of partial payments hereunder, and no alteration,
amendment or waiver of any provision of this Note and Mortgage
made by agreement between Payee and any other person or party
shall release, discharge, modify, change or affect the liability
of maker under this Note or the Mortgage.
This Note is subject to the express condition that at
no time shall Maker be obligated or required to pay interest on
the principal balance of this Note at a rate which could subject
Payee to either civil or criminal liability as a result of being
in excess of the maximum rate which Maker is permitted by law to
contract or agree to pay. If by the terms of this Note, Maker is
at any time required or obligated to pay interest on the
principal balance of this Note at a rate in excess of such
maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate and
interest payable hereunder shall be computed at such maximum rate
and the portion of all prior interest payments in excess of such
maximum rate shall be applied and shall be deemed to have been
payments in reduction of the principal balance of this Note.
If any payment hereunder becomes due on a Saturday,
Sunday, or other holiday on which banks doing business in New
York are authorized to close, the due date for this note or the
payment may be extended to the next succeeding business day, but
interest and fees shall be calculated based upon the time of
actual payment.
This Note is freely prepayable in whole, or in part, at
any time but any prepayment is subject to and must be accompanied
by any prepayment charge required by the Credit Agreement.
Payee may set off toward payment of any obligations
under this Note any indebtedness due or to become due from Payee
to Maker and any moneys or other property of Maker in possession
of Payee at any time.
This Note is secured by the Mortgage.
The terms of this Note shall be governed by and
construed under the laws of the State of New York.
This Note may not be changed or terminated orally, but
only by an agreement in writing signed by the party against whom
enforcement of such change or termination is sought.
Maker and the undersigned representative of Maker
represent that Maker has full power, authority and legal right to
execute and deliver this Note and that the indebtedness hereunder
constitutes a valid and binding obligation of Maker.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Payee" and
"Maker" shall include their respective successors and assigns.
IN WITNESS WHEREOF, Maker by its duly authorized
officers has duly executed this Note the day and year first above
written.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:_______________________
ERIE LINE NOTE
$3,500,000 December 21, 1995
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC.
("Borrower") hereby promises to pay to the order of FLEET BANK
("Bank"), the principal sum of Three Million Five Hundred
Thousand Dollars ($3,500,000) or if less, the aggregate unpaid
principal amount of all advances made by Bank of Borrower. The
Bank shall maintain a record of amounts of principal and interest
payable by Borrower from time to time, and the records of the
Bank maintained in the ordinary course of business shall be prima
facie evidence of the existence and amounts of Borrower's
obligations recorded therein. In the event of transfer of this
Erie Line Note, or if the Bank shall otherwise deem it
appropriate, the Borrower hereby authorizes the Bank to endorse
on this Erie Line Note the amount of advances and payments to
reflect the principal balance outstanding from time to time. The
Bank may send written confirmation of advances to Borrower but
any failure to do so shall not relieve the Borrower of the
obligation to repay any advance.
This Erie Line Note shall bear interest at a rate equal
to the "Prime Rate" plus one-half percentage point (1/2%)
calculated based on actual days elapsed in a year of 360 days.
All changes in the interest rate due to a change in the Prime
Rate shall take place automatically and without notice to
Borrower as of the effective date of the change in the Prime
Rate. For purposes of this Erie Line Note, the "Prime Rate" is
the Bank's rate of interest stated by the Bank from time to time
to be its prime rate (irrespective of any rate charged to any
customer in any actual transaction).
Interest shall continue to accrue after maturity at the
rate required by this Erie Line Note until this Erie Line Note is
paid in full. The rate of interest on this Erie Line Note may be
increased under the circumstances provided in the Amended and
Restated Credit Agreement between the Borrower and the Bank dated
December 21, 1995, as the same has been and may be modified,
extended, or replaced from time to time (the "Credit Agreement").
The right of Bank to receive such increased rate of interest
shall not constitute a waiver of any other right or remedy of
Bank.
All interest accrued under this Erie Line Note shall be
due and payable on the first day of each month. All remaining
principal and interest shall be due and payable in full on July
31, 1996, or on such earlier date as the Erie Loan Note (as
defined in the Credit Agreement) is made. All payments shall be
in lawful money of the United States in immediately available
funds.
Any payment not received within ten days of when due
may be subject to an additional late charge equal to 5% of the
payment due.
If this Erie Line Note or any payment hereunder becomes
due on a Saturday, Sunday or other holiday on which the Bank is
authorized to close, the due date for the Erie Line Note or
payment shall be extended to the next succeeding business day,
but any interest or fees shall be calculated based upon the
actual time of payment.
This Erie Line Note is freely prepayable in whole or in
part at the option of the Borrower without premium or penalty.
This Erie Line Note shall, at the Bank's option, become
immediately due and payable without presentment, demand, protest,
or other notice of any kind, all of which are hereby expressly
waived, upon the happening of any Event of Default under the
Credit Agreement.
This Erie Line Note is subject to the express condition
that at no time shall Borrower be obligated or required to pay
interest on the principal balance of this Erie Line Note at a
rate which could subject Bank to either civil or criminal
liability as a result of being in excess of the maximum rate
which Borrower is permitted by law to contract or agree to pay.
If by the terms of this Erie Line Note, Borrower is at any time
required or obligated to pay interest on the principal balance of
this Erie Line Note at a rate in excess of such maximum rate, the
rate of interest under this Erie Line Note shall be deemed to be
immediately reduced to such maximum rate and interest payable
hereunder shall be computed at such maximum rate and the portion
of all prior interest payments in excess of such maximum rate
shall be applied and shall be deemed to have been payments in
reduction of the principal balance of this Erie Line Note.
The terms of this Erie Line Note cannot be changed, nor
may this Erie Line Note be discharged in whole or in part, except
by a writing executed by the holder. In the event that holder
demands or accepts partial payments of this Erie Line Note, such
demand or acceptance shall not be deemed to constitute a waiver
of the right to demand the entire unpaid balance of this Erie
Line Note at any time in accordance with the terms hereof. Any
delay by holder in exercising any rights hereunder shall not
operate as a waiver of such rights.
Bank may set off toward payment of any obligations
under this Erie Line Note any indebtedness due or to become due
from Bank to Borrower and any moneys or other property of
Borrower in possession of Bank at any time.
Borrower on demand shall pay all expenses of Bank,
including without limitation reasonable attorneys' fees, in
connection with enforcement and collection of this Erie Line
Note.
This Erie Line Note shall be governed by the laws of
the State of New York.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Bank" and
"Borrower" shall include their respective successors and assigns.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:________________________
MORTGAGE
THIS MORTGAGE made as of December
21, 1995, between TRAVEL PORTS OF AMERICA,
INC., a New York corporation, with an address
of 3495 Winton Place, Building C, Rochester,
New York 14623 ("Mortgagor"), and Fleet Bank,
a New York bank and trust company with
offices at One East Avenue, Rochester, New
York 14638 ("Mortgagee").
W I T N E S S E T H :
TO SECURE the payment of all obligations of Mortgagor
to Mortgagee of any kind or nature (whether direct or indirect,
absolute or contingent, sole, joint or several), existing now or
in the future, up to a maximum principal sum of Six Million
Dollars ($6,000,000) lawful money of the United States of
America, to be paid with interest (said indebtedness, interest
and all other sums which may or shall become due hereunder being
hereinafter collectively referred to as the "Debt") Mortgagor has
mortgaged, granted, conveyed, and assigned, and by these presents
does mortgage, grant a security interest in, grant, convey, and
assign unto Mortgagee all right, title and interest of Mortgagor
in and to the property described in Exhibit A attached hereto
(hereinafter referred to as the "Premises") and the buildings and
improvements now or hereafter located thereon (hereinafter
referred to as the "Improvements");
TOGETHER WITH all right, title and interest of
Mortgagor in and to the following property, rights and interests
(the Premises and the Improvements together with such property,
rights and interests being hereinafter collectively called the
"Mortgaged Property");
(a) all easements, rights-of-way, gores of land,
streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights,
titles, interests, privileges, liberties, tenements,
hereditaments, and appurtenances of any nature whatsoever,
in any way belonging, relating or pertaining to the
Mortgaged Property and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or
adjoining the Premises to the center line thereof;
(b) all machinery, apparatus, appliances,
equipment, fittings, fixtures and other property of every
kind and nature whatsoever owned by Mortgagor, or in which
Mortgagor has or shall have an interest, now or hereafter
affixed to the Mortgaged Property, or located upon the
Mortgaged Property or appurtenant thereto and usable in
connection with the present or future operation and
occupancy of the Mortgaged Property and all building
equipment, materials and supplies of any nature whatsoever
owned by Mortgagor, or in which Mortgagor has or shall have
an interest, now or hereafter located upon the Mortgaged
Property, all together with any replacements therefor,
additions thereto, or proceeds thereof (hereinafter
collectively referred to as the "Equipment");
(c) all awards or payments, including interest
thereon, and the right to receive the same, which may be
made with respect to the Mortgaged Property, whether from
the exercise of the right of eminent domain (including any
transfer made in lieu of the exercise of said right), or for
any other injury to or decrease in the value of the
Mortgaged Property;
(d) all leases and the right to receive and apply
the rents, issues and profits of the Mortgaged Property
(hereinafter referred to as the Rents) to the payment of the
Debt, all as now existing or hereafter entered into or
arising (hereinafter referred to as the Leases);
(e) all other agreements (including without
limitation all utility, management, or similar agreements)
affecting the use or occupancy of the Mortgaged Property now
or hereafter entered into;
(f) all proceeds of and any unearned premiums on
any insurance policies covering the Mortgaged Property,
including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the
Mortgaged Property;
(g) all benefits of any deposits or payments
heretofore or hereafter made relating to the Mortgaged
Property; and
(h) the right, in the name and on behalf of
Mortgagor, to appear in and defend any action or proceeding
brought with respect to the Mortgaged Property and to
commence any action or proceeding to protect the interest of
Mortgagee in the Mortgaged Property.
TO HAVE AND TO HOLD the above granted and described
Mortgaged Property unto and to the proper use and benefit of
Mortgagee, and its successors and assigns.
AND MORTGAGOR COVENANTS with and represents and
warrants to Mortgagee as follows:
1. Payment of Debt. Mortgagor will pay the Debt at
the time and in the manner provided for in this Mortgage and any
notes or other instruments evidencing the same.
2. Warranty of Title. Mortgagor warrants good and
marketable title to the Premises, the Improvements and the
Equipment.
3. Insurance. Mortgagor (i) will keep the Mortgaged
Property insured against loss or damage from such hazards as
Mortgagee shall from time to time require in amounts approved by
Mortgagee, which amounts shall in no event be less than the
outstanding principal balance of this Mortgage and the total
principal balance of any mortgages which are superior in lien to
the Mortgage and shall be sufficient to meet all applicable
co-insurance requirements, (ii) will maintain such other forms of
insurance coverage with respect to the Mortgaged Property as
Mortgagee may from time to time require in amounts approved by
Mortgagee, and (iii) if required by Mortgagee will maintain flood
insurance satisfactory to Mortgagee. All policies of insurance
(hereinafter referred to as the Policies) shall be issued by an
insurer lawfully doing business in New York and Pennsylvania and
acceptable to Mortgagee, shall contain the standard New York
mortgagee non-contribution clause endorsement or an equivalent
endorsement satisfactory to Mortgagee naming Mortgagee as
mortgagee under the policy (including as its interest may appear
as the person to which all payments made by such insurance
company shall be paid), and shall provide for thirty days prior
notice of cancellation to Mortgagee.
Mortgagor shall pay the premiums for the Policies as
the same become due and payable. On the anniversary date hereof
in each year, Mortgagor will assign and deliver a certificate of
insurance to Mortgagee. Not later than thirty (30) days prior to
the expiration date of each of the Policies Mortgagor will
deliver to Mortgagee a renewal policy marked "premium paid" or
accompanied by other evidence of payment of premium satisfactory
to Mortgagee. If at any time Mortgagee is not in receipt of
written evidence that all insurance required hereunder is in
force and effect, Mortgagee shall have the right with reasonable
notice to Mortgagor to take such action as Mortgagee reasonably
deems necessary to protect its interest in the Mortgaged
Property, including, without limitation, the obtaining of such
insurance coverage as Mortgagee in its sole discretion deems
appropriate, and all expenses incurred by Mortgagee in connection
with such action or in obtaining such insurance and keeping it in
effect shall be paid by Mortgagor to Mortgagee upon demand.
Mortgagor shall pay interest on the amount of any such expenses
paid by Mortgagee at the highest rate born by the Debt until paid
in full, and such payment obligation shall be deemed part of the
Debt and shall be secured by this Mortgage.
If the Mortgaged Property shall be damaged or
destroyed, in whole or in part, by fire or other casualty,
Mortgagor shall give prompt notice thereof to Mortgagee. Sums
paid to Mortgagee by any insurer may be retained and applied by
Mortgagee toward payment of the Debt whether or not then due and
payable in such priority and proportions as Mortgagee in its
discretion shall deem proper or, at the discretion of Mortgagee,
the same may be paid, either in whole or in part, to Mortgagor
for such purposes as Mortgagee shall designate. If Mortgagee
shall receive and retain such insurance proceeds, the lien of
this Mortgage shall be reduced only by the amount thereof
received and retained by Mortgagee and actually applied by
Mortgagee in reduction of the Debt.
4. Payment of Taxes, etc. Mortgagor shall pay all
taxes, assessments, water rates, sewer rents, ground lease
rentals, license and easement fees, and other charges, including
vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Premises, now or hereafter levied or
assessed against the Mortgaged Property (hereinafter referred to
as the Taxes) prior to the date upon which any fine, penalty,
interest or cost may be added thereto or imposed by law for the
nonpayment thereof.
Mortgagor shall deliver to Mortgagee, upon request,
receipted bills, cancelled checks and other evidence satisfactory
to Mortgagee evidencing the payment of the Taxes prior to the
date upon which any fine, penalty, interest or cost may be added
thereto or imposed by law for the nonpayment thereof. If such
evidence of payment is not delivered within ten (10) days,
failure to deliver such proof may be conclusively deemed by
Mortgagee to be a default in the payment thereof hereunder and to
be a waiver by Mortgagor of any right to assert or plead payment
thereof as a defense to or to deprive Mortgagee of any right or
remedy hereunder. Mortgagor authorizes Mortgagee, at the expense
of Mortgagor, to order annual tax searches to verify the payment
of taxes. Mortgagee may pay any Taxes not paid when due and all
costs incurred by Mortgagee in connection with such action shall
be paid by Mortgagor to Mortgagee upon demand. Mortgagor shall
pay interest on the amount of any such costs paid by Mortgagee at
the highest rate born by the Debt until paid in full, and such
payment obligation shall be deemed part of the Debt and shall be
secured by this Mortgage.
5. Condemnation. Notwithstanding any taking by any
public or quasi-public governmental body or authority through
eminent domain or otherwise, Mortgagor shall continue to pay the
Debt at the time and in the manner provided for its payment in
this Mortgage and in any other instrument or agreement evidencing
the Debt, and the Debt shall not be reduced until any award or
payment therefor shall have been actually received and applied by
Mortgagee to the discharge of the Debt. Mortgagee may apply any
such award or payment to the discharge of the Debt whether or not
then due and payable in such priority and proportions as
Mortgagee in its discretion shall deem proper. If the Mortgaged
Property is sold, through foreclosure or otherwise, prior to the
receipt by Mortgagee of such award or payment, Mortgagee shall
have the right, whether or not a deficiency judgment on the note
shall have been sought, recovered or denied, to receive such
award or payment, or a portion thereof sufficient to pay the
Debt, whichever is less. Mortgagor shall file and prosecute its
claim or claims for any such award or payment in good faith and
with due diligence and cause the same to be collected and paid
over to Mortgagee and hereby irrevocably authorizes and empowers
Mortgagee, in the name of Mortgagor or otherwise to collect and
receipt for any such award or payment and to file and prosecute
such claim or claims, and although it is hereby expressly agreed
that the same shall not be necessary in any event, Mortgagor
shall, upon demand of Mortgagee, make, execute and deliver any
and all assignments and other instruments sufficient for the
purpose of assigning any such award or payment to Mortgagee, free
and clear of any encumbrances of any kind or nature whatsoever.
6. Leases and Rents. Subject to the terms of this
paragraph, Mortgagee waives the right to enter the Mortgaged
Property for the purpose of collecting the Rents, and grants
Mortgagor the right to collect the Rents. Mortgagor shall hold
the Rents, or an amount sufficient to discharge all current sums
due on the debt, in trust for use in payment of the Debt. The
right of Mortgagor to collect the Rents may be revoked by
Mortgagee upon any default by Mortgagor under the terms of any
instrument evidencing the Debt or this Mortgage by giving notice
of such revocation to Mortgagor. Following such notice,
Mortgagee may collect, retain, and apply the Rents toward payment
of the Debt in such priority and proportions as Mortgagee, in its
discretion, shall deem proper, or to the operation, maintenance
and repair of the Mortgaged Property.
No pledge or assignment of any rents of the Mortgaged
Property or any portion thereof, other than any given to
Mortgagee, is outstanding or in force. Mortgagor will make no
such pledge or assignment thereof except with prior written
consent of Mortgagee. If any such pledge or assignment is made,
the same shall be deemed to be subject hereto and for the use and
benefit of Mortgagee.
Mortgagee shall have all of the rights set forth in
Section 291-f of the Real Property Law of New York in the same
manner as if such section applied to properties located in
Pennsylvania. Mortgagor shall (a) fulfill or perform each and
every provision of the Leases on the part of Mortgagor to be
fulfilled or performed, and (b) enforce, short of termination of
the Leases, the performance or observance of the provisions
thereof by the tenants thereunder. In addition to the rights
which Mortgagee may have herein, in the event of any default
under this Mortgage, Mortgagee, at its option, may require
Mortgagor to pay monthly in advance to Mortgagee, or any receiver
appointed to collect the Rents, the fair and reasonable rental
value for the use and occupation of such part of the Mortgaged
Property as may be in possession of Mortgagor. Upon default in
any such payment, Mortgagor will vacate and surrender possession
of the Mortgaged Property to Mortgagee, or to such receiver and,
in default thereof, Mortgagor may be evicted by summary
proceedings or otherwise. Nothing contained in this paragraph
shall be construed as imposing on Mortgagee any of the
obligations of the lessor under the Leases.
7. Maintenance of the Mortgaged Property. Mortgagor
shall cause the Mortgaged Property to be maintained in good
condition and repair and will not commit or suffer to be
committed any waste of the Mortgaged Property. Upon any default
in doing so to the reasonable satisfaction of Mortgagee after
thirty (30) days notice from Mortgagee, Mortgagee at its option
may put the Mortgaged Property into reasonable condition and
repair, and all sums paid by Mortgagee for such purposes shall,
together with interest thereon, be added to the amount secured
hereunder and be payable on demand. The Improvements and the
Equipment shall not be removed, demolished or materially altered
(except for normal replacement and depreciation), without the
consent of Mortgagee. Mortgagor shall promptly repair, replace
or rebuild any part of the Mortgaged Property which may be
damaged or destroyed by any casualty (including any casualty for
which insurance was not obtained or obtainable) or which may be
affected by any proceeding of the character referred to in
section 5 hereof and shall complete and pay for, within a
reasonable time, any structure at any time in process of
construction or repair on the Premises. If such casualty shall
be covered by the Policies or an award or payment made pursuant
to section 5 hereof, Mortgagor's obligation to repair, replace or
rebuild such portion of the Mortgaged Property shall be
contingent upon Mortgagee paying Mortgagor the proceeds of the
Policies, awards or payments, or such portion thereof as shall be
sufficient to complete such repair, replacement or rebuilding,
whichever is less.
Mortgagor will not, without obtaining the prior consent
of the Mortgagee, initiate, join in or consent to any private
restrictive covenant, zoning ordinance, or other public or
private restrictions, limiting or defining the uses which may be
made of the Mortgaged Property or any part thereof.
8. Estoppel Certificates. Mortgagor, within ten (10)
days after request by Mortgagee and at its expense, will furnish
Mortgagee with a statement, duly acknowledged and certified,
setting forth the amount of the Debt and the offsets or defenses
thereto, if any. If any interest in the Mortgaged Property is
leased, Mortgagor, within ten (10) days after request by
Mortgagee and at its expense, will furnish tenant and/or landlord
estoppel certificates, duly acknowledged and certified, in form
satisfactory to Mortgagee.
9. Transfer or Encumbrance of the Mortgaged
Property. No part of the Mortgaged Property or any interest
therein or legal or equitable title thereto or beneficial use or
constructive possession thereof, shall in any manner be further
mortgaged, encumbered, sold, transferred, conveyed, or subjected
voluntarily or involuntarily, directly or indirectly, to any lien
or other similar claim (including without limitation tax liens,
judgment liens, or mechanics liens), or permitted to be further
mortgaged, encumbered, sold, transferred, conveyed, or subjected
to any lien without the written consent of Mortgagee. For
purposes of this Mortgage, a transfer shall be deemed to have
occurred upon (i) any merger, consolidation, or sale of
substantially all of the assets of a corporation, or (ii)
transfer of any interest in a corporation, or (iii) admission or
release of any person as a partner of a partnership or change of
controlling shares of a partnership. The provisions of this
section shall apply to each and every such further mortgage,
encumbrance, sale, transfer, conveyance, or lien regardless of
whether or not Mortgagee has consented to, or waived by its
action or inaction its rights hereunder with respect to any such
previous further mortgage, encumbrance, sale, transfer,
conveyance or lien.
10. Notice. Any notice, request, demand, statement or
consent made hereunder shall be in writing and shall be sent to
the address first shown above for each party by registered or
certified mail or by courier, return receipt required, and shall
be deemed given when postmarked and addressed if sent by mail, or
when received if given by courier.
Each party may designate a change of address by written
notice to the other party, given in the manner required herein
for notices.
11. Sale of Mortgaged Property After Foreclosure. If
this Mortgage is foreclosed, the Mortgaged Property, or any
interest therein, may, at the discretion of Mortgagee, be sold in
one or more parcels or in several interests or portions and in
any order or manner. It is the intention of the parties that if
this Mortgage covers multiple parcels and if Mortgagee so elects,
Mortgagee in a foreclosure proceeding or proceedings may sell all
or a portion of the parcels in one sale and may sell additional
parcels in additional sales without the necessity of bringing
further foreclosure actions or obtaining deficiency judgments
between sales in order to hold additional sales and apply the
proceeds thereof to the Debt. A deficiency judgment may be
obtained at the option of the Mortgagee after all or any portion
of the properties have been sold, with such judgment taking into
account the value of all of the properties previously sold, and
the period of time for application for a deficiency judgment
shall be deemed to run from the date of the sale of the final
parcel.
12. Offsets, Counterclaims and Defenses. On the date
of execution of this Mortgage, Mortgagor agrees that it has no
actions, claims, or defenses against Mortgagee or this Mortgage.
Mortgagor agrees that any offsets, counterclaims, or defenses to
the Debt shall not be raised in any proceeding to foreclose this
Mortgage, but may only be raised in an independent proceeding.
Any assignee of this Mortgage and the instruments evidencing the
Debt shall take the same free and clear of all offsets,
counterclaims or defenses of any nature whatsoever which
Mortgagor may have against any assignor of this Mortgage and the
Note and no such offset, counterclaim or defense shall be
interposed or asserted by Mortgagor in any action or proceeding
brought by any such assignee upon this Mortgage and/or the note
and any such right to interpose or assert any such offset,
counterclaim or defense in any such action or proceeding is
hereby expressly waived by Mortgagor.
13. Right of Entry. Mortgagee and its representatives
and agents shall have the right to enter and inspect the
Mortgaged Property at all reasonable times.
14. Books and Records/Financial Statements. Mortgagor
will keep and maintain, or will cause to be kept and maintained,
in accordance with generally accepted accounting practices
consistently applied proper and accurate books, records and
accounts reflecting all of the financial affairs of Mortgagor and
all items of income and expense in connection with the operation
of the Mortgaged Property or in connection with any services,
equipment or furnishings provided in connection with the
operation of the Mortgaged Property, whether such income or
expense be realized by Mortgagor or by any other person
whatsoever excepting lessees unrelated to and unaffiliated with
Mortgagor who have leased from Mortgagor portions of the
Mortgaged Property for the purpose of occupying the same.
Mortgagee shall have the right from time to time at all times
during normal business hours to examine such books, records and
accounts at the office of Mortgagor or other person maintaining
such books, records and accounts and to make copies or extracts
thereof as Mortgagee shall desire.
15. Performance of Other Agreements. Mortgagor shall
observe and perform each and every term to be observed or
performed by Mortgagor pursuant to the terms of any agreement or
recorded instrument affecting or pertaining to the Mortgaged
Property.
16. Defaults. The Debt together with any amount which
may become due because of prepayment shall become due at the
option of Mortgagee upon the occurrence of any one of the
following events:
(a) the occurrence of any Event of Default as defined
in the Amended and Restated Credit Agreement between
Mortgagor and Mortgagee dated as of September 29, 1994 as
the same may be modified, extended, or replaced from time to
time;
(b) if Mortgagor shall continue to fail to perform or
be in default under any of the terms, covenants or
conditions of this Mortgage, except those enumerated in
other subparts of this Section 16, for fifteen (15) days
after notice from Mortgagee in the case of any default which
can be cured by the payment of a sum of money or for thirty
(30) days after notice from Mortgagee in the case of any
other default, provided that if such default cannot reasona
bly be cured within such thirty (30) day period and Mortga
gor shall have commenced to cure such default within such
thirty (30) day period and thereafter diligently and expedi
tiously proceeds to cure the same, such thirty (30) day
period shall be extended for so long as it shall require
Mortgagor in the exercise of due diligence to cure such
default, but in any event not more than 90 days;
(c) if Mortgagor shall fail to pay within fifteen (15)
days of notice and demand by Mortgagee, any installment of
any assessment against the Mortgaged Property for local
improvements heretofore or hereafter laid, which assessment
is or may become payable in annual or periodic installments
and is or may become a lien on the Mortgaged Property,
notwithstanding the fact that such installment may not be
due and payable at the time of such notice and demand;
(d) if without the consent of Mortgagee any material
portion of the Mortgaged Property is taken by any public or
quasi-public governmental body or authority through eminent
domain or otherwise;
(e) if the Policies are not kept in full force and
effect, or if the certificates of insurance are not
delivered to Mortgagee promptly upon request; or
(f) if without the consent of Mortgagee any Leases are
made, cancelled or modified, or if any portion of the Rents
is paid for a period of more than one (1) month in advance
or if any of the Rents are assigned to anyone other than
Mortgagee.
The events listed in subparagraphs (a) through (f) of this
section 16 are called "Events of Default".
17. RIGHTS AND REMEDIES UPON DEFAULT: Upon the
occurrence of any "Event of Default" hereunder, the Mortgagee
may, at its option, exercise any one or more of the following
rights and remedies:
(a) Right to Take Possession of Mortgaged Property.
The Mortgagor agrees to surrender possession of the
Mortgaged Property to the Mortgagee upon demand, and the
Mortgagee shall thereupon have the right to enter and take
possession of the Mortgaged Property, to let the Premises,
the Improvements, the Equipment, or any part thereof, to
collect all Rents, Rental Insurance Proceeds and Business
Interruption Insurance Proceeds and to apply the same on
account of the Debt, whether then matured or not, after
payment of all proper costs, charges and expenses,
including, but not limited to, (i) impositions, (ii) any
premiums for fire, public liability and other insurance
coverage affecting the Premises, the Improvements, the
Equipment or any part thereof and (iii) any and all other
costs, charges and expenses which it may be necessary or
advisable for the Mortgagee to pay in the management,
operation and maintenance of the Premises, the Improvements,
the Equipment or any part thereof, including, but not
limited to, the cost of making repairs, alterations, and
tenant improvements, commissions for renting the Premises,
the Improvements, the Equipment, or any part thereof and
legal expenses incurred in enforcing claims, preparing
papers or any other services that may be required, or
otherwise as a court of competent jurisdiction may direct.
After taking possession of the Mortgaged Property, the
Mortgagee may dispossess, by summary proceedings or
otherwise, any tenants, subtenants or occupants of the
Premises, the Improvements or any part thereof then or
thereafter in default in the payment of any Rent, and the
Mortgagor hereby irrevocably appoints the Mortgagee its
agent and attorney-in-fact (which agency shall be deemed to
be coupled with an interest), with full power of substitu
tion, for such purpose. In the event that the Mortgagor is
then an occupant of the Premises, the Improvements or any
part thereof, it agrees to surrender possession thereof to
the Mortgagee upon demand, and if the Mortgagor remains in
possession thereof after such demand, such possession shall
be as tenant of the Mortgagor, and the Mortgagor agrees to
pay monthly in advance to the Mortgagee such rent for the
Premises, the Improvements or any part thereof so occupied
as the Mortgagee may reasonably demand, and in default of so
doing, the Mortgagor may also be dispossessed by summary
proceedings or otherwise.
(b) Right to Foreclose Mortgage. The Mortgagee may
foreclose this Mortgage and sell, if permitted by law, or
petition to be sold, the Premises in one parcel or in such
parcels, manner or order as a court of competent
jurisdiction may direct. If permitted by law, Mortgagee may
foreclose this Mortgage for any portion of the Debt or any
other sums secured hereby which are then due and payable,
subject to the continuing lien of this Mortgage for the
balance of the Debt not then due. If any real property
transfer tax or real property transfer gains tax shall be
due and payable upon the conveyance of the Premises pursuant
to a judicial sale in any action, suit or proceeding brought
to foreclose this Mortgage or by deed in lieu of
foreclosure, the Mortgagor will pay or cause the same to be
paid. In the event that the Mortgagor fails to pay any such
tax within 20 days after notice and demand for payment is
given by the Mortgagee, the Mortgagee is hereby authorized
to pay the same, and any amount thereof so paid by the
Mortgagee, together with all costs and expenses incurred by
the Mortgagee in connection with such payment, including,
but not limited to, reasonable attorneys' fees and
disbursements, and interest on all such amounts, costs and
expenses at the rate of one percent (1%) per annum in excess
of the interest rate specified with respect to the Debt, but
in no event in excess of the maximum interest rate permitted
by law, shall be paid by the Mortgagor to the Mortgagee on
demand. Until paid by the Mortgagor, all such amounts,
costs and expenses, together with interest thereon, shall be
secured by this Mortgage and may be added to the judgment in
any suit brought by the Mortgagee against the Mortgagor
hereon.
(c) Right to Appointment of Receiver. In any action
to foreclose this Mortgage, the Mortgagee shall be entitled,
without notice, without regard to the adequacy of any
security for the indebtedness secured hereby and without
regard to the solvency of any person, firm or corporation
who is or may become liable for the payment of all or any
part of the Debt secured hereby, to have a receiver
appointed with all the rights and powers permitted under the
laws of the State of New York and Commonwealth of
Pennsylvania. In addition the receiver shall be entitled to
take any and all action necessary or deemed advisable to let
the Mortgaged Property including without limitation making
improvements or tenant improvements and adding the cost of
same to the Debt secured hereby. In the event that a
receiver of the Premises is appointed hereunder, such
receiver shall also have and may enforce all of the rights
and remedies of the Mortgagee under subparagraph (a) hereof.
(d) Additional Rights and Remedies. The rights and
remedies of the Mortgagee hereunder shall be in addition to
its rights and remedies under the laws of the State of New
York and the Commonwealth of Pennsylvania. Nothing
contained in this Mortgage shall be construed as requiring
the Mortgagee to pursue any particular right or remedy for
the purpose of procuring the satisfaction of the obligations
and Debt secured hereby, and the Mortgagee may exercise any
or all of its rights and remedies under this Mortgage, the
instruments evidencing the Debt, or otherwise provided by
law, in its sole discretion. No failure of the Mortgagee to
insist upon strict performance by the Mortgagor of any of
its covenants or obligations under this Mortgage or the
instruments evidencing the Debt, and no delay by the
Mortgagee in exercising any of its rights or remedies
hereunder, thereunder or otherwise provided by law, shall be
deemed to be a waiver of such covenants or obligations or to
preclude the exercise of such rights or remedies, and the
Mortgagee, notwithstanding any such failure or delay, shall
have the right thereafter to insist upon the strict
performance by the Mortgagor of any and all of its covenants
and obligations under this Mortgage and the instruments
evidencing the Debt, and to exercise any and all of its
rights and remedies hereunder, thereunder or otherwise
provided by law.
18. Right to Cure Defaults/Costs of Collection. If
default in the performance of any of the covenants of Mortgagor
herein occurs, the Mortgagee may, at its discretion, remedy the
same and for such purpose shall have the right to enter upon the
Mortgaged Property or any portion thereof without thereby
becoming liable to Mortgagor or any person in possession thereof
holding under Mortgagor. If Mortgagee shall remedy such a
default or appear in, defend, or bring any action or proceeding
to protect its interest in the Mortgaged Property or to foreclose
this Mortgage or collect the Debt, or take any other action of
any kind to protect its interest in the mortgaged property or
collect the Debt (including without limitation taking possession,
monitoring, appointing a receiver, or collecting rents), the
costs and expenses thereof (including reasonable attorneys' fees
to the extent permitted by law), with interest as provided in
this paragraph, shall be paid by Mortgagor to Mortgagee upon
demand. All such costs and expenses incurred by Mortgagee in
remedying such default or in appearing in, defending, or bringing
any such action or proceeding, or in taking any other action
shall be paid by Mortgagor to Mortgagee upon demand, with
interest at the rate of interest in effect on the Debt
immediately before said default, for the period after notice from
Mortgagee that such costs or expenses were incurred to the date
of payment to Mortgagee. All such costs and expenses incurred by
Mortgagee pursuant to the terms of this Mortgage, with interest,
shall be secured by this Mortgage.
19. Late Payment Charge. If any sum of money due to
be paid under this Mortgage is not paid within ten (10) days
after the date on which it is due, Mortgagor shall pay to
Mortgagee upon demand a late payment charge of four percent (4%)
of such unpaid amount due to defray the expense incurred by
Mortgagee in handling and processing such delinquent payment, and
such amount shall be secured by this Mortgage.
20. Non-Waiver. The failure of Mortgagee to insist
upon strict performance of any term of this Mortgage shall not be
deemed to be a waiver of any term of this Mortgage. Mortgagor
shall not be relieved of Mortgagor's obligation to pay the Debt
at the time and in the manner required by reason of (i) failure
of Mortgagee to comply with any request of Mortgagor to take any
action to foreclose this Mortgage or otherwise enforce any of the
provisions hereof or of any instrument evidencing the Debt or any
other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Debt or any portion thereof, (ii) the
release, regardless of consideration, of the whole or any part of
the Mortgaged Property or any other security for the Debt or
(iii) any agreement or stipulation between Mortgagee and any
subsequent owner or owners of the Mortgaged Property or other
person extending the time of payment or otherwise modifying or
supplementing the terms of any instrument evidencing the Debt,
this Mortgage or any other mortgage, instrument or document
evidencing, securing or guaranteeing payment of the Debt or any
portion thereof, without first having obtained the consent of
Mortgagor; and in the latter event, Mortgagor shall continue to
be obligated to pay the Debt at the time and in the manner
provided in any instrument evidencing the Debt and this Mortgage,
as so extended, modified and supplemented, unless expressly
released and discharged by Mortgagee. Regardless of
consideration, and without the necessity for any notice to or
consent by the holder of any subordinate lien, encumbrance,
right, title or interest in or to the Mortgaged Property,
Mortgagee may release any person at any time liable for the
payment of the Debt or any portion thereof or any part of the
security held for the Debt and may extend the time of payment or
otherwise modify the terms of any instrument evidencing the Debt
and/or this Mortgage, including, without limitation, a
modification of the interest rate payable on the principal
balance of any instrument evidencing the Debt, without in any
manner impairing or affecting this Mortgage or the lien thereof
or the priority of this Mortgage, as so extended and modified, as
security for the Debt over any such subordinate lien,
encumbrance, right, title or interest. Mortgagee may resort for
the payment of the Debt to any other security held by Mortgagee
in such order and manner as Mortgagee, in its discretion, may
elect. Mortgagor's obligations shall not be impaired or altered
by the taking of any other or additional security for or
guarantee of the Debt or any part thereof, or by the failure to
hold, protect, or realize upon any other additional security or
guarantee, or by the release of same. Mortgagee may take action
to recover the Debt, or any portion thereof, or to enforce any
covenant hereof without prejudice to the right of Mortgagee
thereafter to foreclose this Mortgage. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but
shall be entitled to every additional right and remedy now or
hereafter afforded by law. The rights of Mortgagee under this
Mortgage shall be separate, distinct and cumulative and none
shall be given effect to the exclusion of the others. No act of
Mortgagee shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision.
21. Prepayment After Event of Default. In the event
of a default under this Mortgage and if by reason thereof the
Mortgagee elects to declare the entire principal balance hereof
to be immediately due and payable, or if an action is commenced
for the foreclosure of this Mortgage, then in such event the
prepayment consideration herein provided for shall become due and
payable on the date of such election in the same manner as though
the Mortgagor had exercised such right of prepayment as herein
set forth. If any such event occurs prior to the earliest date
upon which the Mortgagor has a right of prepayment, then in such
event the prepayment consideration applicable upon the earliest
date on which the Mortgagor had such right of prepayment shall
apply and Mortgagor also shall pay to Mortgagee a sum equal to
interest which would have accrued on the principal balance of the
Debt at the rate specified in the instrument evidencing the Debt
from the date of payment to the end of the period during which
prepayment is prohibited. The amount of such prepayment consider
ation computed on the principal balance as of the date aforesaid,
shall be added to and secured by this Mortgage and shall be
recoverable by the Mortgagee in the same manner as the principal
balance hereof and in addition thereto, in any action brought for
the foreclosure of the Mortgage.
22. Security Agreement. This Mortgage constitutes
both a real property mortgage and a "security agreement", within
the meaning of the Uniform Commercial Code, and the Mortgaged
Property includes both real and personal property and all other
rights and interest, whether tangible or intangible in nature of
Mortgagor in the Mortgaged Property. Mortgagor by executing and
delivering this Mortgage has granted to Mortgagee, as security
for the Debt, a security interest in the Equipment. If Mortgagor
shall default under any instrument evidencing the Debt or this
Mortgage, Mortgagee, in addition to any other rights and remedies
which it may have, shall have and may exercise immediately and
without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing, the
right to take possession of the Equipment or any part thereof,
and to take such other measures as Mortgagee may deem necessary
for the care, protection and preservation of the Equipment. Upon
request or demand of Mortgagee, Mortgagor shall at its expense
assemble the Equipment and make it available to Mortgagee at a
convenient place acceptable to Mortgagee. Mortgagor shall pay to
Mortgagee on demand any and all expenses, including legal
expenses and attorneys' fees, incurred or paid by Mortgagee in
protecting its interest in the Equipment and in enforcing its
rights hereunder with respect to the Equipment. Any notice of
sale, disposition or other intended action by Mortgagee with
respect to the Equipment sent to Mortgagor in accordance with the
provisions hereof at least five (5) days prior to such action,
shall constitute reasonable notice to Mortgagor. The proceeds of
any disposition of the Equipment, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority
and proportions as Mortgagee in its discretion shall deem proper.
23. Further Acts, etc. Mortgagor will, at the cost of
Mortgagor, and without expense to Mortgagee, do, execute,
acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignments,
transfers and assurances as Mortgagee shall, from time to time,
require, for the better assuring, conveying, assigning,
transferring and confirming unto Mortgagee the property and
rights hereby mortgaged or intended now or hereafter so to be, or
which Mortgagor may be or may hereafter become bound to convey or
assign to Mortgagee, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for
filing, registering or recording this Mortgage and, on demand,
will execute and deliver and hereby authorizes Mortgagee to
execute in the name of Mortgagor to the extent Mortgagee may
lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments, to evidence more
effectively the lien hereof upon the Mortgaged Property.
24. Headings, etc. The headings and captions of
various paragraphs of this Mortgage are for convenience of
reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions
hereof.
25. Filing/Recording of Mortgage, etc. Mortgagor
forthwith upon the execution and delivery of this Mortgage and
thereafter, from time to time, will cause this Mortgage, and any
security instrument creating a lien or evidencing the lien hereof
upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and
in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien hereof
upon, and the interest of Mortgagee in the Mortgaged Property.
Mortgagor will pay all filing, registration or recording fees,
and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all
Federal, state, and county and municipal taxes, duties, impost,
assessments and charges arising out of or in connection with the
execution and delivery of this Mortgage, any mortgage
supplemental hereof, any security instrument with respect to the
Mortgaged Property or any instrument of further assurance.
Mortgagor shall hold harmless and indemnify Mortgagee, its
successors and assigns, against any liability incurred by reason
of the imposition of any tax on the making and recording of this
Mortgage.
If at any time the United States of America, any state
thereof or any governmental subdivision of any such state, shall
require revenue or other stamps to be affixed to any instrument
evidencing the Debt or this Mortgage, Mortgagor will pay for the
same, with interest and penalties thereon, if any.
26. Sole Discretion of Mortgagee. Wherever pursuant
to this Mortgage, Mortgagee exercises any right given to it to
approve or disapprove, or any arrangement or term is to be
satisfactory to Mortgagee, the decision of Mortgagee to approve
or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion
of Mortgagee and shall be final and conclusive unless otherwise
specifically stated herein.
27. Recovery of Sums Required To Be Paid. Mortgagee
shall have the right from time to time to take action to recover
any sum or sums which constitute a part of the Debt as the same
become due, without regard to whether or not the balance of the
Debt shall be due, and without prejudice to the right of
Mortgagee thereafter to bring an action of foreclosure, or any
other action, for a default or defaults by Mortgagor existing at
the time such earlier action was commenced.
28. Marshalling. Mortgagor waives and releases any
right to have the Mortgaged Property marshalled.
29. Actions and Proceedings. Mortgagee shall have the
right to appear in and defend any action or proceeding brought
with respect to the Mortgaged Property and to bring any action or
proceeding that it, in its discretion, feels should be brought to
protect its interest in the Mortgaged Property.
30. Inapplicable Provisions. If any term, covenant or
condition of this Mortgage shall be held to be invalid, illegal
or unenforceable in any respect, this Mortgage shall be construed
without such provision.
31. Certain Definitions. Unless the context clearly
indicates a contrary intent or unless otherwise specifically
provided herein, (i) words used in this Mortgage shall be used
interchangeably in singular or plural form, (ii) the word
"Mortgagor" shall mean "each Mortgagor and/or any subsequent
owner or owners of the Mortgaged Property or any part thereof or
interest therein or any of its or their heirs, representatives,
successors, agents or assigns", the word "Mortgagee" shall mean
"Mortgagee or any subsequent holder of any evidence of
indebtedness secured by this Mortgage or any of its successors,
assigns, agents, or representatives", (iii) the word "person"
shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority,
or other entity, (iv) the words "Mortgaged Property" shall
include any portion of the Mortgaged Property or interest
therein, and (v) the word "Debt" shall mean all sums secured by
this Mortgage. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine
or neuter forms, and the singular form of nouns and pronouns
shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include
the plural and vice versa.
32. Waiver of Notice. Mortgagor shall not be entitled
to any notices of any nature whatsoever from Mortgagee except
with respect to matters for which this Mortgage specifically and
expressly provides for the giving of notice by Mortgagee to
Mortgagor, and Mortgagor hereby expressly waives the right to
receive any notice from Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide
for the giving of notice by Mortgagee to Mortgagor.
33. No Oral Change. This Mortgage may not be
modified, amended, changed, discharged or terminated orally, but
only by an agreement in writing signed by the party against whom
the enforcement of the modification, amendment, change, discharge
or termination is sought.
34. Business Days. If any payment or obligation
hereunder becomes due on a Saturday, Sunday, or other holiday on
which banks doing business in the State of New York are
authorized to close, the due date for payment or performance is
extended to the next succeeding business day, but any interest
and fees shall be calculated based upon the time of actual
payment or performance.
35. Compliance with Laws and Ordinances. Mortgagor
shall comply, and shall cause all tenants, subtenants and
occupants of the Mortgaged Property to comply, with all laws and
ordinances relating to the use or occupancy of the Mortgaged
Property and with all requirements, orders and notices of
violation thereof issued by any government or department or
agency thereof having apparent jurisdiction, unless Mortgagor is
then contesting (after giving prior written notice thereof to
Mortgagee), by appropriate legal proceedings conducted in good
faith and with due diligence, the validity, application or
accuracy, in whole or in part, of any such law, ordinance,
requirement, order or notice.
IN WITNESS WHEREOF, Mortgagor has duly executed this
Mortgage the day and year first above written.
TRAVEL PORTS OF AMERICA, INC.
By: _________________________________
William Burslem III
Vice President
STATE OF NEW YORK)
COUNTY OF MONROE ) SS.:
On the 21st day of December, 1995, before me personally
came William Burslem III, to me known, who, being by me duly
sworn, did depose and say that he resides in the Town of Mendon,
New York; that he is the Vice President of Travel Ports of
America, Inc., the corporation described in the foregoing
instrument, and that he executed said instrument by authority of
the Board of Directors of said corporation.
___________________________________
EXHIBIT A
(Attached to and made a part of a
Mortgage dated as of December 21, 1995 given
by Travel Ports of America, Inc. to Fleet
Bank)
ALL THAT TRACT OR PARCEL OF LAND SITUATE IN THE TOWNSHIP OF
HARBORCREEK, COUNTY OF ERIE AND STATE OF PENNSYLVANIA, BOUNDED
AND DESCRIBED AS FOLLOWS, TO-WIT:
PARCEL I
BEGINNING at a point in the center of the intersection of
the Davison or Graves Road, and the line between Tracts 193 and
194; thence North 89 degrees 30' West along the said Tract line,
495 feet to a stake in land of John Cass and wife; thence South
30' West, about 114 feet to other land of John Cass and wire
fence; thence eastwardly parallel with said Tract line and along
said wire fence, about 162 feet to a stake still in the land of
John Cass; thence southwardly approximately parallel with said
highway and along land of John Cass, about 295 feet to a stake
still in the land of John Cass; thence eastwardly along the wire
fence and land of John Cass, about 330 feet to a point in the
center line of said road; thence along said road, northwardly
about 412 feet to the place of beginning. Containing about 3
acres of land. Excepting and reserving therefrom certain land
taken for the Pennsylvania Thruway.
FURTHER, being bounded and described as follows: All that
certain piece or parcel of land lying and being situate in Tract
193 in Harborcreek Township, Erie County, Pennsylvania and being
more particularly bounded and described as follows, to-wit:
BEGINNING at a point in the center line of the Depot Road, also
known as Davison and Graves Road, at its inter-section with the
north line of Tract 193; thence South 0 degrees 30' East along
the center line of Depot Road, 130.4 feet to a point; thence
North 89 degrees 30' West 55.6 feet along land acquired for Ramp
to Depot Road interchange; thence continuing along said Ramp land
South 5 degrees 0' West, 133.3 feet to an angle point in said
Ramp land; thence South 69 degrees 0' West along said Ramp land
111.2 feet to a point of curve; thence along said Ramp land on a
curve having a radius of 954.93 feet a chord distance of 186.2
feet to a point; thence westwardly 4.3 feet to a point; thence
North 0 degrees 30' East, 295.0 feet to a point; thence North 89
degrees 30' West 162.0 feet to a point; thence North 0 degrees
30' East 114.0 feet to a point on the north line of Tract 193;
thence along said Tract line South 89 degrees 30' East, 495.0
feet to the place of beginning, containing 2.6 acres of land
being the same more or less.
FURTHER, being described as follows, All that certain piece
or parcel of land, being part of Tract No. 193, Harborcreek
Township, Erie County, Pennsylvania described as follows:
BEGINNING at a point in the center line of Depot Road (as a 50
foot right of way), said point being 607.95 feet northwesterly
along the center line of Depot Road, from the intersection of
said center line with the center line of U.S. Interstate Route
No. 90 (Legislative Route No. 797) and Depot Road being
designated as Legislative Route No. 25068 and point being
previously described in Deed Book 854 page 211 in a conveyance
from Garth E. May to the Poplar White Thruway Serve dated March
30, 1962 as being on the line between Tracts 193 and 194; thence
South 1 degree 35' 45" West along the center line of said Depot
Road, 127.60 feet to a point; thence North 88 degrees 24' 15"
West 12.0 feet to a point; thence North 83 degrees 49' 15" West
passing over an iron pipe stake marker on the westerly line of
said Depot Road at 13.04 feet, a total distance of 46.0 feet to
an iron pipe stake marker, said line being the northerly line of
the boundary of Ramp "A" of Exit No. 10 of said U.S. Interstate
Route No. 90; thence South 6 degrees 10' 45" West along the
boundary of said Ramp "A" 132.76 feet to an iron pipe stake
marker; thence continuing along said ramp boundary South 63
degrees 53' 47" West 87.30 feet to an iron pipe stake marker at a
point of curve to the left; thence continuing along said ramp
boundary along the curve to the left having a radius of 1,019.93
feet a long chord bearing of South 58 degrees 03' 50" West and a
length of 207.33 feet, a total arc distance of 207.68 feet to an
iron pipe stake marker; thence North 88 degrees 51' 40" West 21.6
feet to an iron pipe stake marker; thence North 1 degree 08' 20"
East 295.0 feet along a fence to an iron pipe stake marker;
thence North 88 degrees 51' 40" West along a fence 162.0 feet to
an iron pipe stake marker; thence North 1 degree 08' 20" East
114.0 feet to an old iron pin found; thence South 88 degrees 51'
40" East passing over an iron pipe stake on the westerly line of
said Depot Road, at 480.5 feet, a total distance of 505.5 feet to
the place of beginning.
PARCEL II:
BEGINNING at a post in the center of the public road at
Cass' Corners, so called; thence along said road, south 2 west,
sixteen and five tenths (16.5) rods to a post; thence north 89-
1/4 west, along the land formerly of George Cass, thirty and
five tenths (30.5) rods to a post; thence due south along the
land formerly of George Cass now Pecan Shoppe of Harborcreek,
Inc., twenty and no tenths (20) rods to a post; thence north 89-
1/2 west, along land formerly of George Cass, thirty-one and one-
half (31-1/2) rods to a post; thence south 0 45 west
approximately seven hundred fifty (750) feet to a point in the
northerly line of the right-of-way for U.S. Interstate 90; thence
in a westerly direction along said northerly line of Interstate
90 approximately one thousand three hundred twenty-five (1,325)
feet to a point where the northerly line of said Interstate 90
intersects the northerly line of the property now or formerly of
Daniel and Jean Bryner and the southerly line of the premises
herein to be conveyed; thence north 89 west, approximately five
hundred seventy-five (575) feet to a post and the land now or
formerly of H.A. Bell; thence north 1 west, seventy-five and
five tenths (75.5) rods to a post; thence south 88 east, seventy-
three (73) rods to a post; thence north 1 east, thirty-seven and
three tenths (37.3) rods to a post; thence east to a post; thence
north 1-1/4 west, sixty-eight (68) rods to a post, thence along
said road, south 51 east, forty-four (44) rods to a post in the
center of a public road; thence along said road, south 70 east,
forty-five and four tenths (45.4) rods to a post; thence south
55 east, along same, six and five tenths (6.5) rods to a post;
thence south 34 east, five and four tenths (5.4) rods to a post
and place of beginning.
EXCEPTING AND RESERVING therefrom the certain parcel
conveyed to Robert Cass, July 8, 1947, as recorded in Deed Book
495, page 267, further bounded and described as follows:
BEGINNING at a point in the center line of said Highway
Route 25068, it being Depot Road and at the south property line
of David E. Cass; thence southerly along the center line of said
Highway Route 25068, one hundred sixty (160) feet to a point;
thence in a westerly direction on a line approximately parallel
with the south line of land of David E. Cass, one hundred eighty-
three (183) feet to a point; thence northerly, one hundred fifty-
five (155) feet to the south property line of David E. Cass,
thence easterly along the south property line of David E. Cass,
two hundred twenty-five (225) feet to the point of beginning.
EXCEPTING ALSO all that certain piece or parcel of land
lying and being situate in Tract 194, Harborcreek Township, Erie
County, Pennsylvania, further bounded and described as follows:
BEGINNING at a point where the center line of the Depot Road
intersects the center line of the Davidson Road at the so called
Cass' Corners, said point of beginning also being the point of
beginning of the parcel of land conveyed to John H. Cass and wife
by W.E. Cass on April 24, 1953; thence north 34 west, five and
four tenths (5.4) rods in the center line of the Depot Road to a
point; thence continuing along the same north 55 west, six and
five tenths (6.5) rods to a point, thence continuing along the
same north 70 west, forty-five and four tenths (45.4) rods to a
point; thence north 51 east, forty-five (45) rods to a point;
thence south 1-1/4 east to the center of the said Depot Road and
thence continuing along the center line of said Depot Road, in a
southeasterly direction to the place of beginning. The parcel
herein excepted being a triangular shaped parcel of land and
lying north of the said Depot Road, as contained in Deed to W. E.
Cass and Frances Cass, his wife, by Deed dated February 12, 1927,
as recorded in Deed Book 303, at page 340.
PARCEL III:
BEGINNING at the northeast corner of the parcel herein
described, said point being located by beginning at a post in the
center of the public road at Cass' Corners, so called; thence
along said road, south 2 west, sixteen and five tenths (16.5)
rods to a post; thence north 89-1/4 west, along the lands
formerly of George Cass now Pecan Shoppe of Harborcreek, Inc.,
thirty and five Tenths (30.5) rods to a post; thence due south
along the land formerly of Cass now Pecan Shoppe and parallel
with Davidson Road approximately one hundred fourteen (114) feet
to a point; thence eastwardly along the lands of Pecan Shoppe,
approximately one hundred sixty-two (162) feet to a point; said
point also being the northeast corner of the parcel
hereindescribed as to be conveyed herewith; thence due south
parallel with the Davidson Road and along the lands of Pecan
Shoppe a distance of two hundred ninety-five (295) feet to a
point in the northerly line of the boundary of U.S. Interstate
Route 90; thence in a westerly direction along said U.S. Route
90, a distance of approximately one thousand one hundred twenty-
five (1,125) feet to a point; thence north 0 45' east along the
line formerly separating the lands of John Cass and George Cass,
a distance of approximately seven hundred fifty (750) feet to a
point; thence south 89-1/2 east, along the land formerly of
George Cass, thirty-one and one-half (31-1/2) rods to a post;
thence south 88 fifty-one minutes (51') forty seconds (40")
east, along a fence, one hundred sixty-two (162) feet to an iron
pipe stake marker at the place of beginning.
EXCEPTING AND RESERVING therefrom the certain piece or
parcel of land situate in the Township of Harborcreek, County of
Erie and Commonwealth of Pennsylvania, as shown on the plot of
survey of part of the land of Gloria Kozlowski, in Tract 194,
recorded November 20, 1984 in Erie County Map Book 27, page 84,
being more particularly bounded and described as follows, to-wit:
BEGINNING at a point in the centerline of Depot Road (Pa. Rte.
270), at the northwest corner of the piece, said point also being
the northeast corner of a 0.523 acre parcel of land having been
or about to be conveyed to John D. Mroczkowski; thence along the
east line of land of said Mroczkowski, South twenty-two minutes
fifty seconds West (S 00 22' 50" W), one hundred forty and
thirty-eight hundredths (140.38) feet to a point; thence South
thirty-five degrees forty-nine minutes twenty seconds East (S 35
49' 20" E), six hundred eighty-seven and fifty-eight hundredths
(687.58) feet to a point; thence North twenty degrees eleven
minutes fifty-five seconds East (N 20 11' 55" E), five hundred
eleven and thirty-five hundredths (511.35) feet to a point in the
centerline of the aforementioned Depot Road; thence along the
centerline of Depot Road, North sixty-nine degrees forty-eight
minutes five seconds West (N 69 48' 05" W), three hundred thirty-
five (335.00) feet to a point; thence continuing along the same,
North sixty-eight degrees forty-seven minutes fifteen seconds
West (N 68 47' 15" W), two hundred eighty-two and eighty-one
hundredths (282.81) feet to a point, the place of beginning.
Containing 4.261 acres of land, more or less, and being the same
premises conveyed to Joseph Skindell in Erie County Deed Book
1600, page 147.
REVOLVING LINE NOTE
$2,750,000 September __, 1995
FOR VALUE RECEIVED, TRAVEL PORTS OF AMERICA, INC.
("Borrower") hereby promises to pay to the order of FLEET BANK
("Bank"), the principal sum of Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000) or if less, the aggregate unpaid
principal amount of all advances made by Bank of Borrower. The
Bank shall maintain a record of amounts of principal and interest
payable by Borrower from time to time, and the records of the
Bank maintained in the ordinary course of business shall be prima
facie evidence of the existence and amounts of Borrower's
obligations recorded therein. In the event of transfer of this
Revolving Line Note, or if the Bank shall otherwise deem it
appropriate, the Borrower hereby authorizes the Bank to endorse
on this Revolving Line Note the amount of advances and payments
to reflect the principal balance outstanding from time to time.
The Bank may send written confirmation of advances to Borrower
but any failure to do so shall not relieve the Borrower of the
obligation to repay any advance.
This Revolving Line Note shall bear interest at a rate
equal to the "Prime Rate" plus one-half percentage point (1/2%)
calculated based on actual days elapsed in a year of 360 days.
All changes in the interest rate due to a change in the Prime
Rate shall take place automatically and without notice to
Borrower as of the effective date of the change in the Prime
Rate. For purposes of this Agreement, the "Prime Rate" is the
Bank's rate of interest stated by the Bank from time to time to
be its prime rate (irrespective of any rate charged to any
customer in any actual transaction).
Interest shall continue to accrue after maturity at the
rate required by this Revolving Line Note until this Revolving
Line Note is paid in full. The rate of interest on this
Revolving Line Note may be increased under the circumstances
provided in the Amended and Restated Credit Agreement between the
Borrower and the Bank dated September 29, 1994, as the same has
been and may be modified, extended, or replaced from time to time
(the "Credit Agreement"). The right of Bank to receive such
increased rate of interest shall not constitute a waiver of any
other right or remedy of Bank.
All interest accrued under this Revolving Line Note
shall be due and payable on the first day of each month.
Principal payments shall be due and payable sufficient to assure
that the aggregate principal amount outstanding under the
Revolving Line never exceeds the amount then available under the
Borrowing Formula described in Article I, Section B of the Credit
Agreement, and also sufficient to assure that there is no
outstanding principal under the Revolving Line for at least
thirty (30) consecutive days between each September 1 and the
next succeeding August 31. All remaining principal and interest
shall be due and payable in full on the date of expiration of the
Revolving Line as specified in the Credit Agreement. Payments may
be made pursuant to a mutually agreeable cash management
arrangement with the Bank. All payments shall be in lawful money
of the United States in immediately available funds.
Any payment not received within ten days of when due
may be subject to an additional late charge equal to 5% of the
payment due.
If this Revolving Line Note or any payment hereunder
becomes due on a Saturday, Sunday or other holiday on which the
Bank is authorized to close, the due date for the Revolving Line
Note or payment shall be extended to the next succeeding business
day, but any interest or fees shall be calculated based upon the
actual time of payment.
This Revolving Line Note is freely prepayable in whole
or in part at the option of the Borrower without premium or
penalty.
This Revolving Line Note shall, at the Bank's option,
become immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby
expressly waived, upon the happening of any Event of Default
under the Credit Agreement.
This Revolving Line Note is subject to the express
condition that at no time shall Borrower be obligated or required
to pay interest on the principal balance of this Revolving Line
Note at a rate which could subject Bank to either civil or
criminal liability as a result of being in excess of the maximum
rate which Borrower is permitted by law to contract or agree to
pay. If by the terms of this Revolving Line Note, Borrower is at
any time required or obligated to pay interest on the principal
balance of this Revolving Line Note at a rate in excess of such
maximum rate, the rate of interest under this Revolving Line Note
shall be deemed to be immediately reduced to such maximum rate
and interest payable hereunder shall be computed at such maximum
rate and the portion of all prior interest payments in excess of
such maximum rate shall be applied and shall be deemed to have
been payments in reduction of the principal balance of this
Revolving Line Note.
The terms of this Revolving Line Note cannot be
changed, nor may this Revolving Line Note be discharged in whole
or in part, except by a writing executed by the holder. In the
event that holder demands or accepts partial payments of this
Revolving Line Note, such demand or acceptance shall not be
deemed to constitute a waiver of the right to demand the entire
unpaid balance of this Revolving Line Note at any time in
accordance with the terms hereof. Any delay by holder in
exercising any rights hereunder shall not operate as a waiver of
such rights.
Bank may set off toward payment of any obligations
under this Revolving Line Note any indebtedness due or to become
due from Bank to Borrower and any moneys or other property of
Borrower in possession of Bank at any time.
Borrower on demand shall pay all expenses of Bank,
including without limitation reasonable attorneys' fees, in
connection with enforcement and collection of this Revolving Line
Note.
This Revolving Line Note shall be governed by the laws
of the State of New York.
Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Bank" and
"Borrower" shall include their respective successors and assigns.
TRAVEL PORTS OF AMERICA, INC.
By:__________________________
Title:________________________
LEASE
BY AND BETWEEN
Baltimore Port Truck Plaza Limited Partnership
A Maryland Limited Partnership with Principal
Offices at 601 S. Bond Street,
Baltimore, Maryland, Landlord,
and
Travel Ports of America, Inc.,
a New York Corporation with Principal Offices at
3495 Winton Place, Bldg. C,
Rochester, New York, Tenant.
PREMISES:
Baltimore Port Truck Plaza, Baltimore, Maryland
ANNUAL RENT:
$700,000.00
TERM:
7 Years
FIRST (1ST) LEASE YEAR COMMENCING ON
THE DAY OF MARCH, 1996.
Draft: 2/16/96
LEASE AGREEMENT
This Lease, executed this day of February, 1996, by
and between Baltimore Port Truck Plaza Limited Partnership, a
Maryland Limited Partnership, with principal offices at 601 S.
Bond Street, Baltimore, Maryland, (herein "Landlord"), and Travel
Ports of America, Inc., a New York corporation with principal
offices at 3495 Winton Place, Bldg C., Rochester, New York 14623,
(herein "Tenant").
1. PREMISES. Landlord, for and in consideration of the
rents, covenants and agreements hereinafter reserved and
contained on the part of Tenant, its successors and assigns, to
be paid, kept and performed, does hereby demise and lease to
Tenant, and Tenant does hereby take and hire from Landlord, the
premises more commonly known as the Baltimore Port Truck Plaza,
located at 5501 O'Donnell Street, in the City of Baltimore,
Maryland, and more particularly described on Exhibit A attached
hereto, together with all of Landlord's easements, rights and
appurtenances thereto, all buildings and improvements located
thereon, all personal property, furniture, fixtures, machinery,
equipment or other property located thereon or used in connection
with the truckstop business presently in operation on said
premises, including specifically the assets and properties
located on or in use at said premises as of August 1, 1995, (said
premises, assets and properties are collectively referred to
herein as the "Demised Premises"), and excluding the assets and
properties set forth on Exhibit B, Schedule of Excluded Assets,
attached hereto, but Tenant shall not be obligated to lease less
than all of the above.
The parties agree that the covenants and obligations on the
part of Tenant to be performed hereunder are subject to and
conditioned upon Tenant's continued right and privilege of
ingress and egress to the Demised Premises substantially in the
same manner and substantially to the same extent as presently
enjoyed by Landlord of the Demised Premises as of the date of
this Lease.
2. TERM. The primary term of this lease shall commence on
March 1, 1996, or the date possession of the Demised Premises is
delivered to Tenant, if later, (herein the "Commencement Date").
The term so commenced shall continue until the expiration of
seven (7) years from the first day of the first calendar month
next succeeding the Commencement Date. When the term hereof is
ascertained and specifically fixed, the parties agree to execute
a memorandum, suitable for recording, at Tenant's option and
expense, which shall specify the Commencement Date, and the date
fixed for expiration of this Lease. Notwithstanding the
foregoing, if Landlord is unable to deliver possession of the
Demised Premises as herein provided on or before March 1, 1996,
for reasons beyond its control and after commercially reasonably
efforts, or if possession of the premises at 5502 O'Donnell
Street, more commonly known as Baltimore Port Travel Plaza Mobil
Gasoline Station, pursuant to a certain lease of even date with
Travel Plaza I, Inc., (hereinafter, the "Gasoline Station
Lease"), and the premises adjoining the Demised Premises more
particularly described in a certain lease with Truck Ex, Inc.,
also of even date, (hereinafter, the "Truck Ex Lease"), has not
been delivered to Tenant on or before such date, then either
party may, at its option, terminate this Lease. Any such
termination shall be without further liability of either party to
the other, except that in the event of such termination by
Landlord, Landlord agrees to pay to Tenant its reasonable costs
of inspection, investigation and due diligence regarding the
environmental condition of the Demised Premises and the said
Mobil Gasoline Station and Truck Ex premises. Notwithstanding
the foregoing, Tenant's right to reimbursement under this Lease
shall not exceed the sum of Thirty-Two Thousand Dollars
($32,000.00), less the sum actually received by Tenant for
reimbursement for such activities under the Gasoline Station
Lease and the Truck Ex Lease.
3. RENT. Tenant's liability for rent shall commence on the
Commencement Date. Tenant covenants and agrees to pay to
Landlord as and for annual rent for the Demised Premises the sum
of Seven Hundred Thousand Dollars ($700,000.00), payable in equal
monthly installments of Fifty-Eight Thousand Three Hundred Thirty-
Three Dollars and Thirty-Three Cents ($58,333.33). Rent shall be
paid in advance on the first day of each month. In the event of
any partial month, or in the event this lease shall terminate on
other than the last day of the month, the rental for any such
month shall be prorated on the basis of the number of days of
such month in which Tenant leases the Demised Premises pursuant
to this Lease. Tenant covenants and agrees to pay the rent
herein prescribed to Landlord at landlord's address set forth
above or at such other place as Landlord may from time to time
specify by notice given pursuant to this Lease.
4. TAXES.
(a) Landlord shall be responsible for all taxes, special
taxes, penalties and interest and all assessments then a lien,
both current and reassessed, and whether due or to become due,
through the Commencement Date. Any such taxes paid by Landlord
for periods including the Term of this Lease, shall be prorated
and paid by Tenant as of the Commencement Date.
(b) Tenant shall promptly pay, as additional rent hereunder,
any and all real and personal property taxes levied and assessed
upon or against the Demised Premises during or with respect to
the term or any extension or renewal of this Lease, together with
any sales taxes attributable to or assessed upon the rent
payments herein. Tenant shall pay such taxes when due and
simultaneously provide Landlord with proof of payment of the
same. Except in the event of the purchase of the Demised
Premises by Tenant, pursuant to Section 29 below or otherwise,
any such taxes paid by Tenant for periods beyond the expiration
of the term of this Lease, shall be prorated and paid by Landlord
as of the date of such expiration.
(c) Tenant shall have the right, in its own name and/or in
the name of the Landlord at Tenant's sole cost and expense,
provided Landlord shall not be subject to any civil or criminal
liability therefor, to make and prosecute applications for
abatement of taxes and/or appeal for correction of assessment,
and Landlord agrees to cooperate reasonably with Tenant in this
regard. Landlord agrees to sign all necessary instruments in
connection with such application or appeal. Landlord shall not
settle any such application or appeal without Tenant's prior
written approval.
(d) Notwithstanding anything to the contrary herein, Tenant
shall not be obligated to pay any part of any franchise, excise,
estate, inheritance, income, or similar tax which is or may
become payable upon or with respect to the income or profits of
Landlord by reason of any law now in force or hereafter enacted.
With regard to betterments and special assessments attributable
to and levied or assessed against the Demised Premises, Landlord
and Tenant agree that the same shall be paid for over the maximum
period allowed by law and the Tenant shall be obligated to pay
only those installments which fall due during the term of this
Lease, as it may be extended or renewed, (subject to prorations).
Landlord agrees to give Tenant prompt notice of any special
assessment proceedings to allow Tenant to oppose such assessments
or participate in such proceedings, and Tenant may, at Tenant's
sole cost and expense, in its own name or the name of Landlord
contest any such proceeding or object to the inclusion of the
Demised Premises in an improvement or special district. Landlord
covenants and agrees that it will not consent to or apply on its
own behalf for the Demised Premises to be included in an
improvement or special district or subject the Demised Premises
to a user fee for any utilities or other service without the
prior written consent of Tenant, which consent shall not be
unreasonably withheld.
5. UTILITIES. Tenant shall be responsible for and shall
pay all utilities used by the Tenant during the term hereof,
whether the same be billed to the Tenant directly by the utility
furnishing same or as additional rent as Tenant's share billed by
Landlord.
6. USE. Tenant shall have the right to use and/or occupy
the Demised Premises as a Truckstop Facility, or for any other
lawful use. As used herein, the term "Truckstop Facility" shall
include the operation of a restaurant, motel, fuel service
station, merchandise store, repair garage, and parking for trucks
and motor vehicles, either alone or in any combination, with the
right to sell, store and dispense gasoline, kerosene, diesel
fuel, motor oils or other petroleum products and, at Tenant's
option, the right to sell alcoholic beverages. Landlord hereby
covenants, warrants and represents that the use of the Demised
Premises by Tenant as a Truckstop Facility will not conflict with
or constitute a breach of or be a default under any indenture,
mortgage, deed, commitment, lease, agreement or other instrument
to which Landlord is bound or under any existing judgment, order
or decree to which Landlord is a party or otherwise subject to.
If at any time within six (6) months from the Commencement Date,
except for default on the part of Tenant, Tenant's right to use
the Demised Premises, or the premises subject to the Truck Ex
Lease, as a Truckstop Facility is legally prohibited, materially
restricted, or terminated for any reason other than an act or
omission of Tenant, Tenant shall notify Landlord in writing of
such event, and Landlord shall use commercially reasonable
efforts to attempt to restore Tenant's right to use the premises
as provided above at Landlord's expense. Upon the failure of
Landlord to restore Tenant's right to use the premises as
provided above, Tenant may attempt to do so. If Landlord is
unsuccessful in restoring Tenant's right to use the premises as
provided above within one hundred twenty (120) days following the
receipt of the notice from Tenant or if Tenant having elected to
take such action on its own is unsuccessful, Tenant may terminate
this lease on not less than ten (10) days written notice to
Landlord.
Notwithstanding the foregoing, upon expiration or earlier
termination of the Gasoline Station Lease, and except in the
event Tenant purchases the premises subject thereto or in the
event of the default by Landlord thereunder which results in
termination thereof, Tenant agrees that it shall not, without the
prior written consent of Landlord, its successors and assigns,
expand the use of the Demised Premises to the extent it is used
as a gasoline service station as of the date of this Lease. For
purposes of this paragraph, expansion of such use shall mean the
construction or installation of additional gasoline distribution
facilities at the Demised Premises beyond the extent to which
such facilities are in existence at or are in operation on the
Demised Premises as of the date of this Lease. The foregoing
shall not be deemed to prevent or preclude Tenant, its successors
or assigns, from repairing, replacing, or maintaining the
facilities at or on the Demised Premises of the date of this
Lease. The foregoing shall be deemed a covenant running with the
land, and shall bind Tenant, its successors and assigns.
7. ALTERATIONS. The Tenant may, at its own expense, make
such alterations, improvements, additions, and changes to the
Demised Premises as it may deem necessary or expedient in the
operation of the Demised Premises, provided the Tenant, without
the written consent of the Landlord, shall not tear down or
materially demolish any of the improvements on the Demised
Premises, or make any material change or alteration in such
improvements which, when completed, would diminish the value of
the Demised Premises.
8. REPAIRS. The Demised Premises and the buildings and
improvements thereon, both outside and inside, together with all
fixtures and appurtenances belonging thereto, all appliances,
machinery and equipment located in or used in connection with the
Demised Premises, the storm and sanitary sewers, plumbing,
electrical, heating, ventilating and air conditioning systems,
underground storage tanks and associated piping (except for tanks
and associated piping heretofore abandoned or taken out-of-
service), fuel equipment, sidewalks, driveways, curbs,
approaches, and parking lots, in, on or about the Demised
Premises (hereinafter collectively called "Improvements") shall
be kept in good order and repair by the Tenant at the Tenant's
sole cost and expense, ordinary wear, tear and obsolescence
excepted. The Tenant shall make all repairs and replacements,
ordinary as well as extraordinary, foreseen and unforeseen,
structural or otherwise, which may be necessary or required so
that the Demised Premises and the Improvements shall remain in
good and operable condition, ordinary wear, tear and obsolescence
only excepted.
9. SURRENDER
Tenant shall on the expiration or the sooner termination of
the Term surrender to Landlord the Demised Premises, including
all buildings, replacements, changes, additions and improvements,
broom-clean and in the same condition as existed as of the
Commencement Date of this Lease, ordinary wear, tear and
obsolescence excepted, subject to the provisions of Section 29.
If Tenant fails to remove any of its personal property, fixtures,
machinery and equipment at such expiration or other termination
of this Lease within ten (10) days from written notice from
Landlord, the same shall be deemed abandoned by the Tenant in
which event such property or any part thereof shall become the
property of the Landlord without any payment or offset therefor,
provided Tenant shall reimburse Landlord for Landlord's
reasonable costs associated with removal thereof. The Tenant
shall repair and restore the Demised Premises and save the
Landlord harmless from all damage to the Demised Premises caused
by such removal of such property by Tenant. Landlord shall not
be responsible for any loss or damage occurring to any property
owned by Tenant or any subtenant. The provisions of this Article
shall survive any termination of this Lease.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. Representations and Warranties. Landlord hereby
represents and warrants to Tenant as follows:
(i) Possession: Subject to paragraph 2 above, the Demised
Premises shall be delivered by Landlord free of all tenancies,
occupancies and other possessory rights as of and upon the
Commencement Date, subject to the Permitted Exceptions set forth
in Schedule C attached hereto.
(ii) No Condemnation. There is no pending or, to the best
knowledge of Landlord, threatened condemnation or similar
proceeding affecting the Demised Premises or any portion thereof,
nor does Landlord have knowledge that any such action is
presently contemplated.
(iii) Compliance with Laws. Except as provided in Section
12, to the best knowledge of Landlord, Landlord and Landlord's
agents, tenants' and predecessors in interest have complied in
all material respects with all applicable laws, ordinances,
regulations, statutes, rules and restrictions pertaining to the
Demised Premises and the operation of the Truckstop Facility
thereon prior to the Commencement Date.
(iv) Litigation. Except as provided in Section 12, there
are no legal actions, suits or other legal or administrative
proceedings, including condemnation cases, pending or, to the
best knowledge of Landlord, threatened, against the Landlord or
the Demised Premises, which involve, relate to or affect the
operation of the Truckstop Facility thereon in a manner which has
or may have material adverse effect on the Truckstop Facility as
presently operated.
(v) Undisclosed Liabilities. Except as provided in
Section 12, Landlord has no liabilities, whether or not accrued,
absolute, contingent or otherwise, which could materially affect
Tenant's possession and use of the Demised Premises as a
Truckstop Facility as presently operated. (vi) Zoning. The
Demised Premises is properly zoned for use as a Truckstop
Facility with a parking lot. Landlord knows of no action or
proceeding, pending or threatened, which will or may result in
the modification or termination of such zoning. There is not
now, nor will there be as of the Commencement Date, any material
uncured violation of any zoning, building or similar law,
ordinance or regulation.
(vii) No Special Assessments. No portion of the Demised
Premises is affected by any special assessment, whether or not
constituting a lien thereon.
(viii) Commitments to Governmental Authorities. No
commitments have been made to any Governmental Authority, utility
company, school board, assessing unit, or other organization,
group or individual, relating to the Demised Premises, which
would impose any obligation upon the Tenant or its successors or
assigns to make any contribution or dedications of money or land,
or to construct, install or maintain any improvements of a public
or private nature on or off the Demised Premises. No
Governmental Authority has imposed any requirement that any owner
or tenant of the Demised Premises pay directly or indirectly any
special fees or contributions or incur any expenses or
obligations in connection with any operations on the Demised
Premises or any part thereof.
(ix) Available Sewer and Water Lines. There are in
existence water and sewer lines and systems to the Demised
Premises having adequate capacity for the transmission of water
and the operation of sanitary and storm sewers to service the
Demised Premises and the operation thereon of a Truckstop
Facility, as presently conducted, all of which are available
without the payment of any fees, charges, or costs, (except for
usual and customary usage charges) and without any obligation on
Tenant to construct, install, or modify such systems, either on
or off the Demised Premises in order to operate the Truckstop
Facility.
Except as otherwise provided herein, Landlord is not making
any representations or warranties regarding the physical
condition of the Demised Premises.
B. LANDLORD'S COVENANTS. Landlord covenants to Tenant as
follows:
(i) Covenant of Title. Landlord is well seized of and has
good marketable and indefeasible title to the Demised Premises,
including the personal property, fixtures, machinery and
equipment subject to this Lease, free and clear of all mortgages,
liens, encumbrances, leases, tenancies, security interests,
covenants, conditions, restrictions, rights-of-way, easements,
judgments and other matters affecting title, except as disclosed
in Schedule C attached hereto, Permitted Exceptions, and except
for the Excluded Assets set forth on Schedule B attached hereto.
Landlord warrants and will defend such title as herein described.
(ii) Covenant of Quiet Enjoyment. Tenant, upon paying the
rent and performing the other terms, provisions and covenants of
this Lease, shall and may, at all times during the Term of this
Lease, peaceably and quietly have, hold and enjoy the Demised
Premises free of molestation or disturbance by the Landlord.
(iii) Covenant Not To Compete. Provided this Lease has not
been terminated, that Tenant is operating a Truckstop Facility
thereon, that the Lease is in full force and effect, and that
Tenant is not in default beyond any applicable grace period,
Landlord covenants and agrees that any land (other than the
Demised Premises) located within fifty (50) miles of the Demised
Premises whether now or hereafter owned or leased by Landlord
shall not, during the term of this Lease and any extensions
thereof, be leased, used or occupied as a Truckstop Facility or
for the sale, storage or dispensing of fuel for automobiles,
motor vehicles or trucks.
(iv) Liens and Encumbrances: Except as expressly provided
in the Permitted Exceptions, Landlord covenants and agrees not to
suffer the Demised Premises at any time during the said term of
this lease or any extension hereof to any lien, charge, or
encumbrance superior to this Lease, and to indemnify and keep
indemnified Tenant against all such liens, charges and
encumbrances.
(v) Personal Property: Except for the assets and
properties set forth in Schedule B attached hereto, Landlord
covenants and agrees that possession of the personal property,
furniture, fixtures, machinery, equipment or other property
located or in operation at or on the Demised Premises as of
August 1, 1995, will be delivered to Tenant on the Commencement
Date, and further covenants and agrees that the same shall, as of
the Commencement Date, be in substantially the same condition as
existed as of said date, suitable for operation of the Truckstop
Facility as it is operated as of the date hereof in all material
respects.
11. COMPLIANCE WITH LAW. Throughout the Term of this
Lease, the Tenant shall, at its own cost and expense, promptly
observe and comply with all laws, orders, regulations, rules,
ordinances and requirements of the federal, state, county and
local governments, and of each of them, and of any and all of its
or their administrative departments, bureaus and officials, and
of the local fire insurance rating organization, and of all
insurance companies writing policies covering the premises or any
part thereof, whether such laws, orders, regulations, rules or
requirements relate to structural repairs, changes or alterations
to or in and about the premises or any buildings or improvements
thereon or to repairs, changes or alterations incident to or as
the result of any use or occupation of the premises, or use of
the adjacent sidewalks, and whether the same now are in force, or
that may, at any time in the future, be enacted or directed. The
Tenant shall pay all costs, expenses, claims, fines, penalties
and damages that may in any manner arise out of or be imposed
because of the failure of the Tenant to comply with these
covenants, and shall hold Landlord harmless of and from all
costs, expenses, damages, liabilities, and obligations arising
from the failure of Tenant to comply with these laws.
Notwithstanding anything to the contrary herein, the foregoing
indemnity shall not apply to the extent caused by or contributed
to by Landlord, (subject to the provisions of paragraph 12
below).
12. ENVIRONMENTAL MATTERS.
(a) Landlord and Tenant acknowledge that there have been
substantial tests, investigations and evaluations of the
environmental condition and compliance of the Demised Premises,
including, but not limited to, the following:
1. Phase II Environmental Site Assessment by Southern Well
and Recovery Corp., dated January, 1996
2. Petrotech Tank Tightness Tests, dated November 14, 1995
3. Site Investigation Report, Baltimore Port Truck Plaza
and Mobil Service Station, dated September, 1995, prepared
by APEX Environmental Inc. for Travel Ports of America,
Inc., and Addendum to Site Investigation Report:
Underground Storage Tank Compliance Issues.
4. Tank Test Information - Shirley Environmental Testing,
Inc.
Baltimore Travel Plaza (Truckstop), Job Nos.
111399 and 111398
Mobil Station, Job Nos. 111400 and 111404
Tank Test Results for Tanks and Line Leak Detectors
Reports from Guardian Corrosion Control Corp., Test Results
fro STIP-3 Cathodic Protection Tank at Truckstop and Mobil
Station.
5. Letter Report: To Maryland Department of Environment
From: Environmental Technical Services
Date: October 27,
1994
Re: Baltimore Travel Plaza (Mobil)
Closure Sampling Report
6. Tank Test Results: NDE
Environmental Corporation 11/1/93
7. Phase II Environmental Assessment of Baltimore Port
Truck Plaza, dated March 10, 1993, prepared by EMG
Environmental Management Group, Inc.
8. Land Bank Environmental Investigation Report, 5401
O'Donnell Street Cut-off at Interstate Avenue, prepared by
Quality Environmental Solutions, Inc. for Exxon Company,
U.S.A., dated February, 1995.
The foregoing reports are collectively referred to herein as the
"Environmental Audits".
Notwithstanding anything to the contrary herein, Landlord
agrees to assume responsibility for, and hold Tenant harmless
from, all costs, expenses, damages, liabilities and obligations
associated with the Base Line Data, as that term is defined
herein, including the cost of investigation, monitoring, cleanup,
restoration and remediation thereof in compliance with the
requirements of the Environmental Protection Agency, the Maryland
Department of Environment, or other governmental agency which may
exercise jurisdiction and authority over the Demised Premises,
(hereinafter the "Environmental Authorities"). For purposes of
this Lease, the term "Base Line Data" shall mean any petroleum,
hazardous substance, hazardous waste or other environmental
contamination: (i) set forth or described in the Environmental
Audits, (ii) known to Landlord prior to the Commencement Date or
discovered as a result of the activities described in Landlord's
Environmental Action Plan described in subparagraph (b) below; or
(iii) disclosed to the Environmental Authorities prior to the
Commencement Date.
(b) Landlord agrees to proceed with the cleanup,
remediation and other activities described in Landlord's
Environmental Action Plan, a copy of which is attached hereto and
marked Exhibit "D". If as a result of the activities described
in Landlord's Environmental Action Plan, or other activities with
respect to the Base Line Data, the levels thereof are
correspondingly reduced, the reduced levels, as documented and
reported to the Environmental Authorities, shall represent the
"New Base Line Data".
(c) Tenant agrees to comply with all requirements of
Environmental Authorities insofar as they relate to operation of
the Demised Premises after the Commencement Date. Tenant's
obligation includes, but is not limited to compliance with
operation, closure and upgrading requirements relating to its
operation on the Demised Premises after the Commencement Date.
Tenant agrees to assume responsibility for and hold Landlord
harmless from all costs, expenses, damages, liabilities and
obligations arising from violation by Tenant of any requirement
of Environmental Authorities pertaining to Tenant's operation of
the Demised Premises after the Commencement Date and
contamination arising after the Commencement Date, including the
costs of (i) cleanup and remediation required by Environmental
Authorities or this Lease, (ii) defense of any claim brought by
third parties arising from environmental contamination, or (iii)
failure to comply with requirements of Environmental Authorities
or this Lease, in each case, to the extent relating to conditions
arising on or after the Commencement Date.
(d) Landlord agrees to comply with all requirements of
Environmental Authorities insofar as they relate to operation of
the Demised Premises prior to the Commencement Date. Landlord's
obligation includes, but is not limited to, compliance with
cleanup, remediation, investigation and closure requirements
relating to operation on the Demised Premises prior to the
Commencement Date, except that Tenant shall comply with all
closure and upgrading requirements for equipment used by it to
the extent closure or upgrading is required after the
Commencement Date. Landlord agrees to assume responsibility for
and hold Tenant harmless from all costs, expenses, damages,
liabilities and obligations arising from violation by Landlord of
any requirement of Environmental Authorities pertaining to
operation of the Demised Premises prior to the Commencement Date
and contamination arising prior to the Commencement Date,
including the costs of (i) cleanup and remediation required by
Environmental Authorities or this Lease, (ii) defense of any
claim brought by third parties arising from environmental
contamination, or (iii) failure to comply with requirements of
Environmental Authorities or this Lease, in each case, to the
extent relating to conditions arising before the Commencement
Date.
(e) Tenant agrees to diligently report and cleanup all
spills, leaks, discharges, or releases of petroleum products or
hazardous substances during its tenancy, and agrees that
environmental contamination arising after the Commencement Date
shall be Tenant's sole obligation and responsibility.
Notwithstanding the foregoing, in no event shall Tenant be
obligated to cleanup or remediate petroleum or other
environmental contamination at a location to levels which are
below the Base Line Data for that same location, except that, if
as a result of a release for which Tenant is responsible,
Environmental Authorities also require remediation of
environmental contamination for which Landlord is responsible,
Tenant shall conduct the remediation until such time as the
contamination is reduced to the levels of the Base Line Data or
New Base Line Data. Tenant and Tenant's agents and contractors
shall have the continuing right upon and after expiration or
sooner termination of this Lease to enter the Demised Premises to
monitor, investigate, cleanup and restore the Demised Premises.
Landlord agrees that no action or proceeding, seeking damages,
equitable relief or otherwise, shall be commenced against Tenant
provided and for so long as Tenant is proceeding with reasonable
diligence with activities designed to reduce such environmental
contamination to levels which approximate the Base Line Data or
the New Base Line Data, as the case may be. Except to the extent
additional contamination above the Base Line Data or New Base
Line Data is discovered, which contamination arises after the
Commencement Date, when such levels are achieved, Tenant shall
have no further liability to Landlord for the environmental
condition of the Demised Premises. For purposes of this
paragraph, Tenant shall be deemed to be proceeding with
reasonable diligence with such activities for so long as it
complies with the requirements of the Environmental Authorities,
in the proper exercise of their jurisdiction and authority.
(f) If, after the Commencement Date, Tenant discovers any
abandoned underground storage tanks, other than those used or
operated by Tenant after the Commencement Date, Tenant shall
notify the Landlord in writing within sixty (60) days of the date
of discovery. Landlord shall assume responsibility for removal
and closure of such tanks and any environmental investigation,
monitoring or remediation associated therewith.
(g) Neither Landlord nor Tenant shall be required to
remediate any contamination beyond requirements of the
Environmental Authorities.
(h) The foregoing notwithstanding, upon Landlord's sale to
Tenant of the Demised Premises, whether pursuant to paragraph 29
or otherwise, Landlord shall have no further obligation to Tenant
for the environmental condition of the Demised Premises or for
compliance with requirements of the Environmental Authorities,
except that Landlord shall have continued responsibility with
respect to any Baseline Contamination or New Baseline
Contamination which, prior to the end of the term of the Lease,
was reported to Environmental Authorities and for which
environmental Authorities have specifically required initiation,
prior to the end of the term of the Lease, of environmental
investigation, assessment, cleanup, remediation, and/or removal
(collectively herein "Baseline Response Activities"). Landlord
shall have responsibility to diligently proceed with such
Baseline Response Activities through to completion. Landlord's
responsibilities with respect to such Baseline Response
Activities shall be deemed completed at such time as: (a)
Landlord certifies to Tenant in writing that such Baseline
Activities have been completed in accord with the requirements of
the Environmental Authorities, and (b) such Environmental
Authorities have issued a letter or other documents indicating
that no further Baseline Response Activities are required.
Nothing in this Section 12 shall be deemed to affect or
impair, or be construed as a release of, any right or claim of
Landlord to insurance coverage, contribution or indemnification,
which Landlord would otherwise be entitled to but for this
Section 12. To the extent Landlord's obligations are limited by
this Section 12, Landlord agrees to assign to Tenant the proceeds
of any such policy of insurance or right to contribution or
indemnification, which, but for this section, would be payable or
otherwise inure to Landlord, and further agrees that Tenant may
prosecute in the name of Landlord any such right or claim for
insurance coverage, contribution or indemnification.
13. MECHANICS' LIENS. Tenant shall have no power to subject
the Demised Premises or Landlord's interest in the premises to
any mechanics' or other liens. If any mechanics' or other liens
or order for payment of money shall be filed against the subject
premises or any building or improvement thereon by reason of or
arising out of any labor or material furnished or alleged to have
been furnished or to be furnished to or for the Tenant at the
Demised Premises, or for or by reason of any change, alteration
or addition or the cost or expense thereof or any contract
relating thereto, the Tenant shall cause the same to be canceled
and discharged of record, by bond or otherwise as allowed by law
at the expense of the Tenant, within sixty (60) days after
written demand therefor.
14. PERMITS AND ASSUMED CONTRACTS.
(a) Tenant has entered into this Lease in the expectation of
obtaining, after expiration of all applicable appeal periods, all
permits, licenses, permissions, changes, variations and or other
authorizations (hereinafter call "Permits") necessary for the
operation of the Truckstop Facility (herein the "facility"),
including without limitation all licenses, authorizations and
permits necessary or required to sell petroleum products and
alcoholic beverages. Tenant agrees to diligently make and
prosecute all necessary applications for such Permits without
unreasonable delay after the execution hereof, (except for the
license to sell alcoholic beverages discussed below). Tenant
may, but shall not be obligated to cancel this lease if after
first application therefor, any of such Permits are denied or are
not obtained within ninety (90) days from Commencement Date of
this Lease. Tenant may similarly elect to cancel this Lease in
the event all Permits under the Truck Ex Lease and the Gasoline
Station Lease are not obtained within the time and in the manner
specified therein. To the extent any of the Permits are
transferable or assignable, Landlord agrees, at Tenant's sole
expense, to assign and transfer any such Permits requested by
Tenant to the name of Tenant or Tenant's designee.
Notwithstanding the foregoing, the parties acknowledge and
agree that certain residency and other requirements will or may
delay the transfer of the license to sell alcoholic beverages at
the Demised Premises, or Tenant's application for such license.
Tenant agrees to effect the transfer or assignment thereof to the
name of Tenant or Tenant's designee, or make application for such
license, (in the name of Tenant or Tenant's designee), not later
than two (2) years after the Commencement Date.
(b) Landlord agrees to make available for Tenant's use at
the Demised Premises all Permits held by or in the name of
Landlord, to the extent the same are necessary for Tenant to
commence and continue operations at the Demised Premises on the
Demised Premises as of the Commencement Date and for so long as
Tenant's applications for the such Permits are pending or
otherwise not obtainable. Tenant agrees to defend, indemnify and
hold harmless Landlord, and the holders of such Permits if other
than Landlord, from any cost, loss, liability, expense (including
reasonable attorneys fees), and damage suffered or sustained by
Landlord by reason of Tenant's use of said Permits or operations
at the Demised Premises under the authority thereof. The fees
and expenses of maintaining any such Permits after the
Commencement Date shall be borne solely by Tenant.
(c) As of the Commencement Date, Tenant agrees to assume
Landlord's rights, duties and obligations with respect to the
contracts and agreements set forth and described in Exhibit
"E", Schedule of Assumed Contracts, attached hereto. Tenant
further agrees to defend, indemnify and hold Landlord harmless
from any cost, loss, liability, expense (including reasonable
attorneys fees), and damage suffered or sustained by Landlord by
reason of Tenant's breach or non-performance thereof at any time
after the Commencement Date.
15. PETROLEUM INVENTORY AND RETAIL INVENTORY. Provided
this lease is in full force and effect, and possession of the
Demised Premises has been delivered to Tenant, Tenant agrees to
purchase from Landlord, all of Landlord's inventory of useable
and saleable motor fuels for resale, (herein the "Petroleum
Inventory"), and Landlord's convenience store, restaurant and
other inventory, and other supplies (herein the "Retail
Inventory") on hand as of the Commencement Date. The price for
the Petroleum Inventory and the Retail Inventory shall be
determined as follows:
(i) Petroleum Inventory. The purchase price for the
Petroleum Inventory shall be the lower of cost or market.
The cost of the Petroleum Inventory shall be the invoiced
cost thereof, if available, as documented by Landlord. Such
valuation shall be on a "first in, first out" basis, such
that only the most recent purchases of products shall be
deemed to be included in its unsold Petroleum Inventory.
The market price of the Petroleum Inventory shall be
determined as the cost of the same products from the same
supplier as of the Commencement Date. In no event shall
Tenant be obligated to purchase any portion of the Petroleum
Inventory which is not merchantable, usable and saleable, or
which is contaminated or unfit for resale as Tenant in its
sole discretion reasonably determines.
(ii) The Retail Inventory shall be audited by an independent
inventory firm agreed upon by the parties on the
Commencement Date, or as soon thereafter as is practicable.
The purchase price for the Retail Inventory shall be the
lower of cost or market. The cost of the Retail Inventory
shall be the invoiced cost thereof, as documented by
Landlord, if available. Such valuation shall be on a "first
in, first out" basis, such that only the most recent
purchases of products shall be deemed to be included in the
Retail Inventory. The Retail Inventory shall not include,
and Tenant shall not be obligated to purchase items which
are obsolete, discontinued, damaged, or otherwise
unmerchantable items, the determination of which shall be at
Tenant's reasonable discretion. The market price of the
Retail Inventory shall be determined as the cost of the same
products from the same supplier as of the Commencement Date.
Subject to agreement by both parties, the cost of the Retail
Inventory may be computed by discounting the retail value of
such audited Retail inventory at the Demised Premises by a
percentage equal to average gross margin for the previous
twelve (12) month period, if available.
16. INDEMNIFICATION; INSURANCE.
A. Tenant's Indemnification. Tenant agrees to defend,
indemnify, and hold Landlord harmless at all times from and after
the Commencement Date, from and against any losses, liabilities,
damages, expenses (including reasonable attorneys fees),
obligations, suits, actions, claims, and demands relating to,
arising out of or caused in any manner by (i) liabilities and
obligations of Tenant, its subtenants, licensees and invitees
arising on or after the Commencement Date, or which result from
operations of Tenant on or after such date; (ii) any
misrepresentation or breach of warranty or covenant on the part
of the Tenant under this Lease; and (iii) except as otherwise
provided herein, any and all losses, damages, costs or expenses
incurred or sustained by Landlord resulting from, arising out of
or relating to a claim made by any third party or governmental
agency for any act, condition, event, or state of facts relating
to the Demised Premises, occurring subsequent to the Commencement
Date. Notwithstanding anything to the contrary herein, the
foregoing indemnities expressly exclude and shall not apply to
the extent caused by or contributed to by Landlord, (subject to
the provisions of paragraph 12). Tenant's obligation shall
survive termination of this Lease, whether by purchase or
otherwise.
B. Landlord's Indemnification. Landlord agrees to defend,
indemnify, and hold Tenant harmless at all times from and after
the Commencement Date, from and against any losses, liabilities,
damages, expenses (including reasonable attorneys fees),
obligations, suits, actions, claims, and demands relating to,
arising out of or caused in any manner by: (i) liabilities and
obligations of Landlord and its prior tenants, subtenants,
licensees and invitees prior to the Commencement Date, or which
result from operations of the Demised Premises prior to such
date, except as modified by paragraph 12 above; (ii) any
misrepresentation or breach of warranty or covenant on the part
of the Landlord under this Lease; (iii) a claim made by any third
party or governmental agency for any act, condition, event, or
state of facts relating to the Demised Premises, occurring or in
existence prior to the Commencement Date, except as modified by
paragraph 12 above; (iv) any claim by creditors of Landlord or
Landlord's tenants, subtenants or licensees under Article 6 of
the Uniform Commercial Code, which in any way affects or may
affect Tenant's use, possession and enjoyment of the Demised
Premises or the personal property, fixtures, machinery and
equipment subject to this Lease; and (v) any claims by local,
State or Federal authorities for unpaid taxes, assessments,
interest or penalties of Landlord, its tenants, subtenants or
licensees, attributable to the Demised Premises or operations
thereon prior to the Commencement Date. Notwithstanding anything
to the contrary herein, the foregoing indemnities expressly
exclude and shall not apply to the extent caused by or
contributed to by Tenant. Subject to the limitations expressly
provided herein, Landlord's obligation shall survive termination
of this Lease, whether by purchase by Tenant or otherwise.
C. Insurance. Tenant agrees at Tenant's expense to maintain
in force continuously throughout the term of this Lease and any
extension hereof public liability insurance covering the Demised
Premises, with limits of not less than $3,000,000.00 for death or
injury to one person, $5,000,000.00 for death or injury to more
than one person, and $2,000,000.00 for property damage, and shall
upon written request of Landlord furnish Landlord a certificate
issued by Tenant's insurer that such policies of insurance and
any renewals thereof are in force. Renewal policies with such
proof shall be delivered to Landlord within thirty (30) days
prior to expiration of policies. Landlord shall be named as an
additional insured, as its interest may appear, on all such
policies of insurance.
Tenant shall at all times during the Term hereof, at its own
expense, insure and keep insured by responsible insurance
companies authorized to do business in the state where the
Demised Premises are located, the buildings on the premises, and
all alterations, extensions and improvements thereto and
replacements thereof together with all fixtures, machinery and
equipment located thereon, against loss or damage by fire and the
risks contemplated within the extended coverage endorsement, for
the replacement value of the Demised Premises. Tenant agrees to
pay the premiums on the insurance when such premiums become due
and payable, and to promptly deliver to and deposit with the
Landlord all policies of insurance with due proof of payment of
premiums. All policies of fire and other insurance shall be for
the benefit of the Landlord, Tenant and any lender holding a
mortgage on Landlord's interest in the premises superior to this
Lease, as their interests may appear. The interest of any such
mortgagee shall be covered by the customary mortgagee endorsement
employed in this state.
D. Survival. (a) All covenants, agreements, representations
and warranties made by the parties in this Agreement, and in any
other certificates and documents delivered in connection
herewith, shall survive the Commencement Date. All
representations and warranties made by the Landlord in this Lease
shall survive the Commencement Date under this Agreement to the
extent of all claims related thereto which are made on or before
the General Bar Date, (defined below), or thereafter to the
extent any such claims are or would be, but for this limitation,
covered by any policy of liability, casualty or other contract of
insurance or other contract or agreement pursuant to which
Landlord is, or would be, but for this limitation, entitled to
contribution or indemnification. For purposes hereof, the
"General Bar Date" shall mean March 1, 1999.
Notwithstanding the foregoing and subject to subparagraph F
below, Upper Limit, (i) Landlord's representations, warranties
and covenants regarding environmental conditions or liability
relating to the Demised Premises shall be governed solely by
paragraph 12 above, and (ii) Landlord's representations,
warranties and covenants regarding tax liabilities of the
Landlord or its predecessors and title to the Demised Premises,
shall survive the Commencement Date and be binding on Landlord
throughout the term of this Lease, and for so long as Landlord's
obligations with respect thereto are executory.
E. Basket. Except as set forth in subparagraph G below,
Tenant shall be entitled to indemnification hereunder for all
losses, costs, expenses or damages with respect to or resulting
from breach of any representation or warranty by the Landlord or
any unknown environmental condition of or liability with respect
to the Demised Premises (herein "Losses"), only after the
aggregate of all such Losses exceeds the sum of One Hundred
Thousand Dollars ($100,000), herein (the "Basket").
F. Upper Limit. Subject only to subparagraph G below, the
parties agree that the Tenant shall be entitled to recover from
the Landlord for Losses suffered by the Tenant, only up to an
aggregate amount of $1 million, (over and above, and in addition
to any amount payable under any policy of insurance or claim for
indemnification or contribution otherwise inuring to Landlord),
the sole source of which, (except in the case of a wilful or
intentional breach), shall be Tenant's right of set-off under
Section 23 hereof.
G. Exclusions from Basket and Upper Limit. Notwithstanding
anything to the contrary herein, the limitations set forth in
subparagraphs E and F above shall not affect, impair, restrict or
limit, and there shall be excluded from the Basket and Upper
Limit, Losses suffered by Tenant in connection with or as a
result of (i) claims, demands, liabilities or actions by,
against or relating to the Landlord's present or former tenants
of the Demised Premises, or creditors of such tenants,
(collectively herein "Tenant Matters"), (ii) Landlord's
obligations with respect to the Baseline Data under Section 12
above, (herein "Baseline Matters"), (iii) claims made, threatened
or asserted, or liabilities or breach of representations or
warranties of which the Landlord or its affiliates have
knowledge, in each case prior to the Commencement Date, (herein
"Known Claims"); (iv) Landlord's affirmative covenants in this
Lease, (other than Landlord's covenants with respect to unknown
environmental conditions under Section 12 above), including,
without limitation Landlord's obligation to deliver to Tenant
good and marketable title to and possession of the Demised
Premises, (herein "Title Matters").
H. Preservation of Insurance, etc. Nothing in this Section
16 shall be deemed to affect or impair, or be construed as a
release of, any right or claim of Landlord to insurance coverage,
contribution or indemnification, which Landlord would otherwise
be entitled to but for this Section. To the extent Landlord's
obligations are limited by this Section 16, Landlord agrees to
assign to Tenant the proceeds of any such policy of insurance or
right to contribution or indemnification, which, but for this
section, would be payable or otherwise inure to Landlord, and
further agrees that Tenant may prosecute in the name of Landlord
all such right or claim for insurance coverage, contribution or
indemnification. Nothing in this Section 16 shall be deemed an
assumption by either party of any liability of the other.
17. DAMAGE OR DESTRUCTION. In case of casualty to the
Demised Premises resulting in damage or destruction thereto such
that the premises are substantially unfit for the occupancy or
use herein contemplated, Tenant shall promptly give written
notice thereof to Landlord. In such event Tenant shall restore,
repair, replace, rebuild or alter the Demised Premises, at
Tenant's sole cost and expense, as nearly as possible to its
value, condition and character immediately prior to such damage
or destruction. Tenant shall promptly and diligently restore the
Demised Premises at Tenant's expense to substantially the same
condition existing prior to the occurrence of the casualty or
peril.
18. CONDEMNATION
(a) If the whole or any part of the Demised Premises shall
be taken or condemned by any competent authority for any public
use or purpose during the term or any extension of this Lease,
Tenant reserves unto itself the right to claim and prosecute its
claim in all appropriate courts and agencies for an award or for
damages for such taking based upon its leasehold ownership
interests in the Demised Premises, and the buildings,
improvements, fixtures, machinery, equipment and other personal
property located thereon, without impairing Landlord's rights
with respect to such taking or injury to Landlord's reversion.
Tenant shall have the right to participate in any condemnation
proceedings or agreement as aforesaid for the purpose of
protecting Tenant's interest hereunder. Landlord shall not enter
into any agreement with respect to any such taking or proceeding
which may affect Tenant's rights under this paragraph without
Tenant's prior written consent.
(b) Notwithstanding the foregoing, if at any time during
the Term of this Lease title to the whole or substantially all of
the Demised Premises shall be taken by the exercise of the right
to condemnation or eminent domain, such that the Demised Premises
are not suitable or fit for the use herein contemplated, or in
the event the award for such taking is less than the Purchase
Price, Tenant may at, Tenant's option cancel and terminate this
Lease without liability as of the date of such taking and the
rent provided to be paid by Tenant shall be apportioned and paid
to the date of such taking.
(c) In the event that title to less than the whole or
substantially all of the Demised Premises shall be taken as
aforesaid, this lease shall terminate only with respect to the
portion of the Demised Premises so taken. In such event, this
Lease shall continue with respect to the portion of Demised
Premises not so taken, provided that, to the extent the Landlord
receives any proceeds of such taking, the annual rent reserved
herein and the purchase price set forth in Section 29 below shall
be equitably reduced.
19. CURING TENANT'S DEFAULTS
Should Tenant fail to perform any of its obligations imposed
by the terms of this Lease promptly before the accrual of any
penalty as provided by law or by any mortgage superior to the
Lease, the Landlord may perform the same and add any such sum or
sums paid or expended in such performance to any rent then due or
thereafter falling due with the same effect as if these sums
shall be and are additional rental. However, this does not grant
Tenant any license or privilege to allow the Demised Premises to
be without the insurance coverage and the failure to promptly
comply with such requirements shall entitle Landlord to
immediately obtain the necessary insurance, and the cost thereof
shall be additional rent and collectible as such.
20. ASSIGNMENT AND SUBLEASES. Tenant shall not assign or
sublet its interest under this Lease, except to a parent,
subsidiary or affiliate corporation of Tenant, without Landlord's
prior written consent, which consent shall not be unreasonably
withheld. In the event of any such assignment, Tenant shall
remain primarily liable for the payment of all rent required to
be paid hereunder and for the performance of all terms, covenants
and conditions herein undertaken by Tenant. Without limitation,
it is agreed that Tenant shall have the right to mortgage or
otherwise encumber its Leasehold interest. Any such assignment
shall not be valid or binding upon Landlord until Landlord shall
have received an original Assignment and Assumption Agreement
executed by the Assignee wherein the Assignee shall assume the
obligations of Tenant under this Lease for the benefit of
Landlord or an original duplicate sublease which shall be subject
to the terms of this Lease.
21. MORTGAGING OF LEASEHOLD ESTATE. In the event that
Tenant shall mortgage its leasehold estate and the mortgagees or
holders of the indebtedness secured by the leasehold mortgage or
trust deed shall notify Landlord in the manner hereinafter
provided for the giving of notice, of the execution of such
mortgage or trust deed and name the place for service of notice
upon such mortgagee, or holder of indebtedness, then in such
event, Landlord hereby agrees for the benefit of such mortgagees
or holders of indebtedness from time to time:
(a) That Landlord will give to any such mortgagee or holder
of indebtedness simultaneously with service on Tenant, a
duplicate of any and all notices or demands given by Landlord to
Tenant from time to time. Such notices shall be given in the
manner and be subject to the provisions of the notice provisions
of this Lease.
(b) That such mortgagee or holder of indebtedness shall
have the privilege of performing any of Tenant's covenants
hereunder or of curing any default of Tenant hereunder or of
exercising any election, option or privilege conferred upon
Tenant by the terms of this Lease.
(c) That Landlord shall not terminate this Lease or
Tenant's right of possession for any default of Tenant, if,
within the period of time within which Tenant might cure said
default under the provisions of this Lease, such mortgagee or
holder of indebtedness commences to eliminate the cause of such
default and proceeds therewith diligently and with reasonable
dispatch as provided.
(d) That, except for the rights to terminate contained in
this Lease, no right, privilege or option to cancel or terminate
this Lease, available to Tenant, shall be deemed to have
exercised effectively unless joined in by any such mortgagee or
holder of the indebtedness.
(e) That no liability for the payment of rental or the
performance of any of Tenant's covenants and agreements hereunder
shall attach to or be imposed upon any mortgagee, trustee under
any trust deed or holder of any indebtedness secured by any
mortgage or trust deed upon the leasehold estate, unless such
mortgagee, trustee, or holder of indebtedness forecloses its
interest and becomes the Tenant hereunder.
22. DEFAULT PROVISIONS
A. Tenant's Default.
(a) If any one or more of the following events (herein
sometimes called "Events of Default") shall happen:
(1) if default shall be made in the due and punctual
payment of the rent reserved under this Lease when and as the
same shall become due and payable which default continues for a
period of ten (10) days after receipt of written notice thereof
from Landlord to Tenant; or
(2) if default shall be made by Tenant in the performance
of or compliance with any of the covenants, agreements, terms or
provisions contained in this Lease, other than those referred to
in the foregoing paragraph (a)(1), and such default shall
continue for a period of thirty (30) days after written notice
thereof from Landlord to Tenant, except that in connection with a
default not curable with due diligence within thirty (30) days,
the time of Tenant within which to cure the same shall be
extended for such time as may be necessary to cure the same with
all due diligence, provided Tenant commences promptly and
proceeds diligently to cure the same and further provided that
such period of time shall not be so extended as to subject
Landlord to any criminal liability; or
(3) if Tenant shall file a voluntary petition in bankruptcy
or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy act or
any other present or future applicable federal, state or other
statute or law, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or
of all or any substantial part of its properties or of the
Demised Premises or any interest of Tenant therein; or
(4) if within thirty (30) days after the commencement of
any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal
bankruptcy act or any other present or future applicable federal,
state or other law, such proceeding shall not have been
dismissed;
(5) if the Demised Premises shall be abandoned by Tenant;
or
(6) if an Event of Default occurs under the Gasoline
Service Station Lease or the Truck Ex Lease;
then and in any such event Landlord at any time thereafter during
the continuance of such Events of Default, may give written
notice to Tenant that this Lease and the Term hereby demised and
all rights of Tenant under this Lease shall expire and terminate,
subject to prorations and continuing obligations as herein
provided.
(b) Upon any such expiration or termination of this Lease,
Tenant shall quit and peacefully surrender the Demised Premises
to Landlord, and Landlord, upon or at any time after any such
expiration or termination, may without further notice, enter upon
and re-enter the Demised Premises and possess and repossess
itself thereof, by summary proceedings, ejectment or otherwise,
and may dispossess Tenant and remove Tenant and all other persons
and property from the Demised Premises and may have, hold and
enjoy the Demised Premises and the right to receive all rental
income of and from the same. Any improvements on the Demised
Premise, (except for Tenant's personal property and trade
fixtures), shall become the sole property of Landlord. Re-entry
and removal may be accomplished by summary dispossess
proceedings, by any suitable action or proceeding at law, by
force, or otherwise. Landlord shall be entitled to the benefits
of all provisions of law respecting the speedy recovery of lands
and tenements and may maintain proceedings in forcible entry and
detainer. Tenant waives any right to the service of any notice
of Landlord's intention to re-enter provided pursuant to any
present or future law. Landlord shall not be liable in connection
with any action it takes pursuant to this paragraph.
Notwithstanding any termination; any expiration of Tenant's
right, title and interest pursuant to this Lease, or any re-
entry, repossession, dispossession, taking of possession or
removal, Tenant's liability under all of the provisions of this
Lease shall continue as herein provided.
(c) At any time or from time to time after such expiration
or termination, Landlord may relet the Demised Premises or any
part thereof, in the name of Landlord or otherwise, for such term
or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the Term of this
Lease) and on such conditions (which may include concessions or
free rent) as Landlord, in its uncontrolled discretion, may
determine and may collect and receive the rents therefor.
Notwithstanding the termination or expiration of Tenant's right,
title and interest under this Lease, entry, repossession,
dispossession or removal, Tenant shall be liable to Landlord each
month (and shall pay within ten days after a bill therefor is
submitted by Landlord) for the difference between: (x) all rent
and other amounts payable under the Lease; expenses incurred by
landlord in securing, protecting and re-entering the Demised
Premises and taking possession thereof, in performing any of
Tenant's obligations, in maintaining and repairing the Demised
Premises, whether for re-letting or otherwise, and in re-letting
the Demised Premises; and (y) the net proceeds of any re-letting.
However, Landlord shall not be obligated to re-let the Demised
Premises.
(d) Landlord and Tenant, so far as permitted by law, waive
and will waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of said premises, or any claim
of injury or damage.
(e) No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this
Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term or condition.
No covenant, agreement, term or condition of this Lease to be
performed or complied with by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written
instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every covenant,
agreement, term and condition of this Lease shall continue in
full force and effect with respect to any other then existing or
subsequent breach thereof.
(f) A charge equivalent to two percent (2%) per month of
the payment amount will be due for any rent not received within
ten (10) days of the due date (first day of the month) as
specified in this Lease.
(g) In addition to any other rights set forth above,
Landlord shall have the right to cure Tenant's failure to perform
any obligations set forth in the Lease, which failure remains
uncured beyond any applicable cure period. Any amounts expended
by Landlord shall be reimbursed to Landlord by Tenant, with
interest thereon from the date of the bill at the rate of 5%
above the prime or base rate of First National Bank of Maryland,
N.A. The failure of this Lease to provide an explicit listing of
all remedies shall not limit either party's right to exercise any
or all remedies available at law or equity. The prevailing party
shall be responsible for all legal fees and expenses incurred by
the other in the event Landlord or Tenant exercises one or more
of the remedies set forth in this Section 22.
B. Landlord's Default.
The parties acknowledge and agree that Tenant is entering
into this Lease with the expectation and upon the condition that
the Truck Ex Lease and Gasoline Station Lease will be valid,
binding and effective according to their respective terms, so
that Tenant will be able to use, possess and enjoy the property
and premises subject thereto and the premises demised hereunder
as a single economic enterprise. Landlord acknowledges and
agrees that the landlords under the Truck Ex Lease and Gasoline
Station Lease are affiliated with and related to Landlord, that
such leases shall be construed consistently with terms and
provisions hereof, and that a default by the landlord under
either such lease shall be considered a default hereunder. In
addition to and not exclusive of any right or remedy conferred
pursuant to this Lease or at law or in equity, the parties agree
that Tenant may terminate this Lease and the Truck Ex Lease and
Gasoline Station Lease in the event of any material breach or
default by Landlord of this Lease, or any material breach by the
landlord under either the Truck Ex Lease or Gasoline Station
Lease, in either case in which such breach or default remains
uncured for a period of thirty (30) days from the date of written
notice to Landlord, except that in connection with a default not
curable with due diligence within thirty (30) days, the time of
Landlord within which to cure the same shall be extended for such
time as may be necessary to cure the same with all due diligence,
provided Landlord commences promptly and proceeds diligently to
cure the same.
23. RIGHT OF SET-OFF. Landlord acknowledges that Tenant is
relying upon the covenants, representations and warranties of the
Landlord hereinbefore set forth and that matters so represented
and warranted are material ones. Such covenants,
representations, and warranties shall not be affected or impaired
by any investigation made by Tenant. The breach or failure of
any such covenants, representations or warranties shall
constitute a default by the Landlord hereunder. Landlord agrees
that if Landlord does not cure any such default within thirty
(30) days after receipt of written notice from Tenant, (or if the
default cannot be cured within thirty (30) days, if Landlord
within such period commences such cure and thereafter be
diligently prosecuting such cure) Tenant shall have the right to
deduct its costs to cure said defaults from any rent reserved
hereunder or any other sum payable by Tenant to Landlord pursuant
to this Lease, (including any sums required to be paid by Tenant
in connection with the transactions described in Section 29
below). These remedies are in addition to all other remedies
Tenant may have in law or equity.
Tenant agrees that if it is determined that Tenant has
improperly set-off hereunder, Tenant shall be liable to Landlord
for all resulting damages, including, but not limited to interest
on the improper set-off at the rate of fifteen percent (15%) per
annum. 24. SUCCESSORS AND ASSIGNS. The covenants and
agreements contained in this Lease inure to the benefit of and
are binding upon the parties hereto, their permitted successors
and assigns.
25. MEMORANDUM. This Lease shall not be filed for public
record by any party hereto, but at Tenant's election, Landlord
and Tenant shall execute and acknowledge a memorandum or short
form lease for recording setting forth the parties, a description
of the Demised Premises, the Term of the Lease, options for
extension of the Term, options to purchase, if any, a description
of the restrictive covenant set forth in Section 6 hereof, and
any other provision hereof, the inclusion of which shall be
mutually agreed upon by Landlord and Tenant. Tenant shall pay
all costs and expenses of recording such memorandum.
26. TENANT'S SIGNS. Tenant shall have the right to erect
and maintain its usual and customary signs on the premises,
provided the same shall conform in every way with the rules and
regulations of the building department having jurisdiction and
with any law or ordinance of the state, county, and/or
municipality.
27. CONTINUING OPERATION. Tenant covenants to conduct its
business so as to prevent the termination or suspension by lapse
of time, non-use or otherwise, of any of the permits, licenses,
rights, privileges (including without limitation any specially
permitted uses or non-conforming zoning uses) in existence as of
the date Tenant takes possession of the Demised Premises.
28. TRADE FIXTURES, MACHINERY AND EQUIPMENT. Landlord
agrees that all trade fixtures, machinery, equipment, furniture
or other personal property installed on the Demised Premises by
Tenant, shall remain the property of Tenant and may be removed by
Tenant at any time and from time to time during the term of this
Lease without notice to Landlord. The Tenant agrees to repair
any damage to the Demised Premises caused by the removal of
Tenant's trade fixtures, machinery and equipment.
29. TRANSACTIONS AT THE END OF THE TERM. At the end of the
term, Landlord and Tenant agree to consummate one (1) of the
transactions set forth in subparagraphs (1), (2) or (3) below:
(1) SALE OF DEMISED PREMISES BY THE PARTIES. Not less than
six (6) months prior to the commencement of the last year of
the original term of this Lease, Landlord and Tenant shall
endeavor to agree on a sale price, (the "Target Price"), for
which the Demised Premises, and all of Landlord and Tenant's
property located on or used in connection therewith, shall
be advertised and sold, which price shall not be less than
the sum of each party's investment at cost in the Demised
Premises and the personal property, fixtures, equipment and
machinery located thereon, (exclusive of the rent paid by
Tenant to Landlord hereunder), as shown on the books and
records of Landlord and Tenant (as computed for tax
purposes). Should the parties agree in writing to a Target
Price, the Demised Premises and the assets and properties
owned by the parties and located thereon, shall be
advertised for sale for a period not exceeding one (1) year.
From the net proceeds of any such sale (after payment of all
charges or expenses attributable thereto), Landlord and
Tenant shall each be paid an amount equal to their
respective investment in the assets so transferred as of the
original date stated for expiration of this Lease. Any
excess thereafter remaining shall be shared equally by the
parties. If parties fail to agree on a Target Price, or
having agreed, the Demised Premises does not sell (or a
contract for such sale is not entered into) for a price
equal to or greater than the Target Price within such
period, the parties agree to consummate one of the
transactions set forth in subparagraphs (2) or (3) below.
Should the parties agree on a Target Price and proceed with
the advertisement and sale of the Demised Premises, Tenant's
use, possession and enjoyment of the Demised Premises shall
continue upon all of the terms and conditions of this Lease
and upon payment of the rent reserved herein. If the
Demised Premises is transferred pursuant to this
subparagraph, this Lease shall terminate on the completion
of such transfer.
(2) EXTENSION OF LEASE. In the event the parties for any
reason fail to consummate a sale of the Demised Premises
pursuant to subparagraph (1) above, Tenant shall have the
option of renewing this Lease for a period of ten (10) years
upon the same terms and conditions as set forth herein, at
a rent to be specified by Landlord by written notice served
not less than sixty (60) days prior to the expiration of the
original term.
(3) LANDLORD'S OPTION TO PUT DEMISED PREMISES. In the
event that the Demised Premises are not sold pursuant to
subparagraph (1) above and Tenant does not elect to renew
the term of the Lease as provided in subparagraph (2) above,
Landlord shall, by written notice, require that Tenant
either:
(i) purchase the Demised Premises, together with
all of Landlord's personal property, furniture,
fixtures, machinery, equipment or other property
located on the Demised Premises or used in connection
with the Truckstop Facility, for a sum equal to Four
Million Seven Hundred Thousand Dollars ($4,700,000.00);
or
(ii) surrender possession of the premises and
effect termination of this lease and all of Tenant's
rights hereunder, upon a date sixty (60) days from the
date of such notice, in which event, Landlord agrees to
pay to Tenant the sum of One Million Five Hundred
Thousand Dollars ($1,500,000.00) on or before such
date;
provided that if Landlord selects option (ii), Tenant may
thereupon notify Landlord in writing that Tenant desires
that Landlord exercise option (i) above, in which event
Tenant's notification shall supersede Landlord's election,
and the parties shall consummate the transactions set forth
in (i) above. Landlord and Tenant shall have the right, in
addition to all other available remedies, to obtain specific
performance of this subparagraph (3).
(4) Until such time as one of the transactions set forth in
subparagraphs (1) through (3) are consummated, this Lease and
Tenant's rights to use, possess and enjoy the same shall continue
upon all of its terms and conditions, except that rent shall
accrue hereunder at the annual rate of four hundred seventy
thousand dollars ($470,000), to be paid in equal monthly
installments, for any period beyond the primary term of this
Lease. If the Demised Premises and the personal property,
furniture, fixtures, machinery, equipment or other property
subject to this Lease are transferred pursuant to this Section as
herein provided, this Lease shall terminate on the completion of
such transfer.
30. TITLE DOCUMENTS; ETC.
(a) In the event Tenant purchases the Demised Premises
pursuant to Section 29 above, Landlord shall convey good,
marketable and indefeasible title in fee simple to said real
estate by good and sufficient special warranty deed, with release
of dower, homestead, curtesy, if any, and free from all liens,
encumbrances, easements and restrictions or other matters
affecting title, except for the Permitted Exceptions set forth in
Schedule C attached hereto, and except such other easements or
rights of way which may be recorded subsequent to the date of
this Lease with Tenant's prior written consent. Landlord's
personal property, furniture, fixtures, machinery, equipment or
other property located on the Demised Premises or used in
connection with the Truckstop Facility, including specifically
the assets and properties located on or in use at said premises
as of August 1, 1995, shall be conveyed to Tenant "as is",
without any express or implied warranty, except for title thereto
by general warranty bill of sale.
(b) The closing of the transaction shall take place within
ninety (90) days after the notice referred to in Section 29
above, or at such other time as Tenant and Landlord shall
mutually agree. The closing shall take place in Baltimore,
Maryland, or at such other place as Tenant and Landlord may
mutually agree upon. If said thirtieth day falls on a Saturday,
Sunday or Holiday, then the closing shall be the first business
day immediately following.
(c) The risk of loss or damage to the Demised Premises by
fire or other casualty, or by taking eminent domain, after
exercise of this option by Tenant, until delivery of the deed
shall be assumed by Landlord, and upon the happening of such
event, Tenant shall have the election of terminating this option
or the contract resulting from the exercise of this option,
without further liability, in which event any money paid by
Tenant shall be returned, or if completing the purchase and
receiving the insurance monies, collectible for such loss or
damage, or the award for such taking by eminent domain.
(d) The expenses of closing, including transfer and sales
taxes attributable to such sale and transfer, shall be shared
equally by Landlord and Tenant.
(e) In the event Tenant is unable, after commercially
reasonable efforts, to obtain conventional mortgage financing to
purchase the Demised Premises solely by reason of environmental
conditions at the Demised Premises, substantially all of which
existed as of the Commencement Date or substantially all of which
are attributable to releases, spills, leaks, discharges or
incidents which occurred prior to such date, Tenant may elect
that the purchase price for the Demised Premises shall be paid by
means of a purchase money note and mortgage in such amount,
substantially in the form annexed hereto as Exhibit "F", which
Tenant shall execute and deliver at Closing. The parties agree
that such pre-existing environmental conditions shall not be
deemed a default or otherwise create a breach thereunder.
31. NOTICES. All notices to the parties shall be addressed
to them at the respective addresses contained herein, or to such
other address, of which either of them shall notify the other in
the manner herein stated for giving notice. The notice must be
given by telecopier and either registered mail, return receipt
requested, or by certified mail, return receipt requested. If
registered mail is used, the service of the notice shall be
deemed complete upon the registration thereof with the postal
authorities, and if certified mail, return receipt requested is
used, the due mailing thereof shall be considered completed
service.
32. WAIVER. The failure of either of the parties to
insist in any one or more instance upon a strict performance of
any of the covenants of this Lease, or to exercise any option
herein contained, shall not be construed as a waiver or
relinquishment in the future of the performance of such covenant,
or the right to exercise such option, but the same shall continue
and remain in full force and effect.
33. ESTOPPEL CERTIFICATES. Each party agrees that from
time to time and upon not less than ten (10) days prior written
request from the other party to execute, acknowledge and deliver
to such other party a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there
have been modifications that the same is in full force and effect
as modified and stating the modifications), that such other party
is not in default hereunder and the dates to which the rent and
other charges have been paid in advance, if any, it being
intended that any such statement delivered pursuant to this
Article may be relied upon by prospective purchasers and
assignees of the each of the respective parties.
34. LANDLORD'S CONSENT. If at any time during the term of
this Lease or any renewal thereof, Landlord is requested to give
its consent and Landlord unreasonable delays in granting its
consent or determines to withhold such consent, in addition to
any other right Tenant may have under this Lease, Tenant shall be
entitled to commence an equitable action to compel Landlord to
give such consent. Landlord shall be liable for any loss,
liability, damage or expense, including attorneys' fees that
Tenant may suffer or incur as a result of Landlord's unreasonable
delay in granting such consent or in the event a court
subsequently determines that such consent was unreasonably
withheld, or as a result of or in connection with Tenant's action
to compel Landlord to give its consent as herein provided.
35. SEVERABILITY. If any term or provision of this Lease
or the application thereof to any person or circumstances shall,
to any extend, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term and
provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
36. REMEDIES CUMULATIVE. All the rights and remedies
herein provided by reason of a default of either of the parties
and all other rights and remedies allowed at law or in equity,
are hereby reserved to each of the parties as distinct, separate
and cumulative remedies, and no one of them shall be deemed to be
in exclusion of any of the others.
37. SUPERIOR INSTRUMENTS. Except as provided herein, this
Lease is subject to each mortgage or deed of trust listed as a
"Permitted Exception" on Exhibit "C" hereto. Without in any way
modifying Tenant's rights or Landlord's obligation under any
other provision of this lease, if the lien of any mortgage, deed
of trust, security indenture or lease is superior to this lease,
(hereinafter collectively called "Superior Instruments"),
Landlord agrees to furnish to Tenant, prior to the Commencement
Date, a recordable agreement, to be executed and acknowledged by
Tenant and the holder or lessor of each Superior Instrument
(hereinafter called "Holder"), which agreement shall have been
executed and acknowledged by Holder, providing as follows:
A. Holder hereby consents to and approves the Lease.
B. Holder agrees that so long as the Lease shall be in
full force and effect and Tenant is in full compliance
therewith:
(i) Tenant shall not be named or joined as a
party defendant or otherwise in any suit, action, or
proceeding for the enforcement or foreclosure of such
Superior Instrument;
(ii) The possession by Tenant of the premises and
Tenant's rights thereto shall not be disturbed,
affected, or impaired by, nor will the Lease or the
term thereof be terminated or otherwise affected by any
suit, action, or proceeding upon or related to any such
Superior Instrument;
(iii) All condemnation awards and insurance
proceeds paid or payable with respect to the Premises
and received by Holder shall be applied and paid in the
manner set forth in the Lease.
C. Holder hereby acknowledges and agrees that all fixtures
and equipment of Tenant installed in or on the Premises,
regardless of the manner or mode of attachment, shall be and
remain the property of Tenant and may be removed by Tenant
any time in accordance with the applicable provisions of the
Lease. In no event (including a default under the Lease or
Mortgage) shall Holder have any liens, rights, or claims in
Tenant's fixtures and equipment; whether or not all or any
part thereof shall be deemed fixtures; and Holder expressly
waives all rights of levy, distraint, or execution with
respect to such fixtures and equipment.
D. If Holder shall become the owner of the Premises by
reason of foreclosure of any Superior Instrument or
otherwise, or if the Premises shall be sold as a result of
any action or proceeding to foreclose a Superior Instrument
or by a deed given in lieu of foreclosure, such purchaser
shall take title to the Demised Premises subject to this
Lease, and all of its terms and conditions set forth herein.
Holder agrees that any sale of the Demises Premises shall be
expressly subject to the terms of this Lease and the tenancy
created hereby, and further, that in the event of any such
sale or transfer this Lease shall continue in full force and
effect, subject to all of its terms and conditions,
(including the rights and obligations set forth in Section
29 hereof), without necessity for executing any new
instrument or lease.
E. In the event Tenant purchases the Demised Premises
pursuant to Section 29 of this Lease, Holder agrees to
release all right, title and interest in and to the Demised
Premises, including the lien created by such Superior
instrument, upon payment to Holder of the purchase price for
the Demised Premises as therein specified, (or an amount
sufficient to pay and discharge such Superior Instrument, if
less than the purchase price).
F. This Agreement shall bind and inure to the benefit of
and be enforceable by the parties hereto and their
respective heirs, personal representatives, successors, and
assigns.
G. This agreement contains the entire agreement between
parties and cannot be changed, modified, waived, or canceled
except by an agreement in writing executed by the party
against whom enforcement of such modification, change,
waiver, or cancellation is sought.
H. This Agreement and the covenants herein contained are
intended to run with and bind all lands affected thereby.
38. HOLDING OVER. Unless otherwise agreed, in the event
Tenant continues to occupy the Demised Premises after the last
day of the term or any extension or renewal hereof, and the
Landlord elects to accept rent thereafter, a tenancy from month
to month only shall be created and not for any longer period.
Rent shall otherwise accrue at a rate equal to 150% of the
monthly rent in effect as of the last day of the term.
39. RIGHT OF FIRST REFUSAL. Provided Tenant is not then in
default, throughout the term and any extension of this lease,
Tenant shall have and Landlord hereby grants to Tenant a right of
first refusal, whereby in the event Landlord receives a bona fide
offer to purchase the Demised Premises or to lease the same for a
term which commences at or after the Commencement Date, and
Landlord desires to accept the same, Tenant shall first have the
right, upon fifteen (15) days written notice from Landlord of the
terms and conditions of any such offer, to purchase or lease the
Demised Premises, as the case may be, for and upon the same terms
thereof. Should Tenant desire to purchase or lease the premises
upon such terms and conditions, Tenant shall serve written notice
of exercise of this right of first refusal upon Landlord not
later than fifteen (15) days after receipt of notice of such bona
fide offer from Landlord. In the event Tenant fails to exercise
such right of first refusal within such period, said right shall
automatically terminate and expire, and Landlord shall be free to
sell, assign, transfer or lease the premises free from the
restrictions hereof. Notwithstanding the foregoing, Landlord
agrees that any sale, transfer, lease or assignment of the
Demised Premises shall be subject in all respects to this Lease,
and all terms, provisions, conditions and obligations set forth
herein. In the event of any such sale, Landlord shall remain
primarily liable for the performance of the obligations and
covenants on the part of Landlord to be performed pursuant to
this Lease.
40. MISCELLANEOUS.
a. Attornment. It is expressly understood and agreed that
Tenant does and hereby takes the premises free from and superior
to all leases, tenancies or possessory interests, and that this
lease shall be and hereby is contingent upon the attornment by
any such persons to Tenant as Sublandlord thereof.
b. Venue. Tenant hereby waives any objection to the
venue of any action filed by Landlord against Tenant in any state
or federal court in the jurisdiction in which the Building is
located, and Tenant further waives any right, claim or power,
under the doctrine of forum non conveniens or otherwise, to
transfer any such action filed by Landlord to any other court.
c. Corporate Authority. If Tenant is a corporation,
concurrently with the signing of this Lease, Tenant shall furnish
to Landlord certified copies of the resolutions of its Board of
Directors (or of the executive committee of its Board of
Directors) authorizing Tenant to enter into this Lease; and it
shall furnish to Landlord evidence (reasonably satisfactory to
Landlord and its counsel) that Tenant is a duly organized
corporation in good standing under the laws of the jurisdiction
of its incorporation, is qualified to do business in good
standing in the jurisdiction in which the Building is located,
has the power and authority to enter into this Lease, and that
all corporate action requisite to authorize Tenant to enter into
this Lease has been duly taken.
d. Time of the Essence. Time is of the essence in the
performance of all obligations under this Lease.
e. Invalidity and Reduction of Charges. If any
provision of this Lease shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be affected thereby and the
remainder of this Lease shall not be affected by such holding and
shall be fully valid and enforceable. In the event any late
charge, interest rate or other payment provided herein exceeds
the maximum applicable charge legally allowed, such late charge,
interest rate or other payment shall be reduced to the maximum
legal charge, rate or amount.
f. Captions. The captions in this Lease are for
convenience only and shall not affect the interpretation of the
provisions hereof.
g. No Partnership. This Lease is not intended to create a
partnership, joint venture or other agency relationship between
Landlord and Tenant in the conduct of their respective
businesses.
h. Counterparts. This Lease may be executed in several
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
i. Authority. If either party is a corporation,
partnership or other legal entity, the individual who executes
and delivers this Lease on behalf of such party represents and
warrants that he or she is duly authorized to do so.
j. No offer. The submission of an unsigned counterpart of
this Lease to Tenant shall not constitute an offer or option to
lease the Leased Premises. This shall become effective and
binding only upon the execution and delivery by Landlord and
Tenant.
k. Enforceability. Each party represents to the other that
this agreement, when fully executed by and between the parties,
shall be binding and enforceable on such party according to its
terms.
41. NO BROKER. The parties each represent and agree that
no act or agreement on the part of either has given or will give
rise to any valid claim against the other for a brokerage
commission, finder's fee or other like payment with respect to
the transactions contemplated by this agreement, it being
expressly agreed that each party shall pay and discharge its own
contractual liability with respect thereto, and that neither
shall not assume any such liability incurred by the other.
42. ENTIRE AGREEMENT. This Lease contains the entire
agreement between the parties, and any agreement hereafter made
shall not operate to change, modify or discharge this Lease in
whole or in part unless such agreement is in writing and signed
by the Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this Lease as
of the day any year first above written.
BALTIMORE PORT TRUCK PLAZA
LIMITED PARTNERSHIP,
Landlord
BY: , General Partner
TRAVEL PORTS OF AMERICA, INC., TENANT
By:
Title:
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
(ATTACH LEGAL DESCRIPTION AND MAP)
EXHIBIT B
SCHEDULE OF EXCLUDED ASSETS
EXHIBIT C
SCHEDULE OF PERMITTED EXCEPTIONS
EXHIBIT D
ENVIRONMENTAL ACTION PLAN
EXHIBIT E
SCHEDULE OF ASSUMED CONTRACTS
LEASE
BY AND BETWEEN
Truck Ex, Inc.,
A Maryland Corporation with Principal
Offices at 601 S. Bond Street,
Baltimore, Maryland, Landlord,
and
Travel Ports of America, Inc.,
a New York Corporation with Principal Offices at
3495 Winton Place, Bldg. C,
Rochester, New York, Tenant.
PREMISES:
Baltimore Port Truck Plaza, Baltimore, Maryland
ANNUAL RENT:
$22,500.00
TERM:
7 Years
FIRST (1ST) LEASE YEAR COMMENCING ON
THE DAY OF MARCH, 1996.
Draft: 2/16/96
LEASE AGREEMENT
This Lease, executed this day of February, 1996 by and
between Truck Ex, Inc., a Maryland corporation with offices at
601 S. Bond Street, Baltimore, Maryland, (herein "Landlord"), and
Travel Ports of America, Inc., a New York corporation with
principal offices at 3495 Winton Place, Bldg C., Rochester, New
York 14623, (herein "Tenant").
1. PREMISES. Landlord, for and in consideration of the
rents, covenants and agreements hereinafter reserved and
contained on the part of Tenant, its successors and assigns, to
be paid, kept and performed, does hereby demise and lease to
Tenant, and Tenant does hereby take and hire from Landlord, a
parcel of land constituting 1.5 acres of land, more or less,
contiguous to and adjoining the Baltimore Port Truck Plaza,
located at 5502 O'Donnell Street, in the City of Baltimore,
Maryland, and more particularly described on Exhibit A attached
hereto, together with all of Landlord's easements, rights and
appurtenances thereto, all buildings and improvements located
thereon, (said premises are collectively referred to herein as
the "Demised Premises"), but Tenant shall not be obligated to
lease less than all of the above.
The parties agree that the covenants and obligations on the
part of Tenant to be performed hereunder are subject to and
conditioned upon Tenant's continued right and privilege of
ingress and egress to the Demised Premises, substantially in the
same manner and substantially to the same extent as presently
enjoyed by Landlord of the Demised Premises as of the date of
this Lease.
2. TERM. The primary term of this lease shall commence on
March 1, 1996, or the date possession of the Demised Premises is
delivered to Tenant, if later, (herein the "Commencement Date").
The term so commenced shall continue until the expiration of
seven (7) years from the first day of the first calendar month
next succeeding the Commencement Date. When the term hereof is
ascertained and specifically fixed, the parties agree to execute
a memorandum, suitable for recording, at Tenant's option and
expense, which shall specify the Commencement Date, and the date
fixed for expiration of this Lease. Notwithstanding the
foregoing, if Landlord is unable to deliver possession of the
Demised Premises as herein provided on or before March 1, 1996,
for reasons beyond its control and after commercially reasonably
efforts, or if possession of the premises at 5502 O'Donnell
Street, more commonly known as Baltimore Port Travel Plaza Mobil
Gasoline Station, pursuant to a certain lease of even date with
Travel Plaza I, Inc., (herein the "Gasoline Station Lease"), and
the premises adjoining the Demised Premises, more particularly
described in a certain lease with Baltimore Port Truck Plaza
Limited Partnership pursuant to a certain lease of even date,
(herein the "Truckstop Lease"), has not been delivered to Tenant
on or before such date, then either party may, at its option,
terminate this Lease. Any such termination shall be without
further liability of either party to the other, except that in
the event of such termination by Landlord, Landlord agrees to pay
to Tenant its reasonable costs of inspection, investigation and
due diligence regarding the environmental condition of the
Demised Premises and the premises subject to the Gasoline Station
Lease and the Truckstop Lease. Notwithstanding the foregoing,
Tenant's right to reimbursement under this Lease shall not exceed
the sum of Thirty-Two Thousand Dollars ($32,000.00), less the sum
actually received by Tenant for reimbursement for such activities
under the Gasoline Station Lease and the Truckstop Lease.
3. RENT. Tenant's liability for rent shall commence on the
Commencement Date. Tenant covenants and agrees to pay to
Landlord as and for annual rent for the Demised Premises the sum
of Twenty-Two Thousand Five Hundred Dollars ($22,500.00), payable
in equal monthly installments of One Thousand Eight Hundred
Seventy-Five Dollars ($1,875.00). Rent shall be paid in advance
on the first day of each month. In the event of any partial
month, or in the event this lease shall terminate on other than
the last day of the month, the rental for any such month shall be
prorated on the basis of the number of days of such month in
which Tenant leases the Demised Premises pursuant to this Lease.
Tenant covenants and agrees to pay the rent herein prescribed to
Landlord at landlord's address set forth above or at such other
place as Landlord may from time to time specify by notice given
pursuant to this Lease.
4. TAXES.
(a) Landlord shall be responsible for all taxes, special
taxes, penalties and interest and all assessments then a lien,
both current and reassessed, and whether due or to become due,
through the Commencement Date. Any such taxes paid by Landlord
for periods including the Term of this Lease, shall be prorated
and paid by Tenant as of the Commencement Date.
(b) Tenant shall promptly pay, as additional rent hereunder,
any and all real and personal property taxes levied and assessed
upon or against the Demised Premises during or with respect to
the term or any extension or renewal of this Lease, together with
any sales taxes attributable to or assessed upon the rent
payments herein. Tenant shall pay such taxes when due and
simultaneously provide Landlord with proof of payment of the
same. Except in the event of the purchase of the Demised
Premises by Tenant, pursuant to Section 29 below or otherwise,
any such taxes paid by Tenant for periods beyond the expiration
of the term of this Lease, shall be prorated and paid by Landlord
as of the date of such expiration.
(c) Tenant shall have the right, in its own name and/or in
the name of the Landlord at Tenant's sole cost and expense,
provided Landlord shall not be subject to any civil or criminal
liability therefor, to make and prosecute applications for
abatement of taxes and/or appeal for correction of assessment,
and Landlord agrees to cooperate reasonably with Tenant in this
regard. Landlord agrees to sign all necessary instruments in
connection with such application or appeal. Landlord shall not
settle any such application or appeal without Tenant's prior
written approval.
(d) Notwithstanding anything to the contrary herein, Tenant
shall not be obligated to pay any part of any franchise, excise,
estate, inheritance, income, or similar tax which is or may
become payable upon or with respect to the income or profits of
Landlord by reason of any law now in force or hereafter enacted.
With regard to betterments and special assessments attributable
to and levied or assessed against the Demised Premises, Landlord
and Tenant agree that the same shall be paid for over the maximum
period allowed by law and the Tenant shall be obligated to pay
only those installments which fall due during the term of this
Lease, as it may be extended or renewed, (subject to prorations).
Landlord agrees to give Tenant prompt notice of any special
assessment proceedings to allow Tenant to oppose such assessments
or participate in such proceedings, and Tenant may, at Tenant's
sole cost and expense, in its own name or the name of Landlord
contest any such proceeding or object to the inclusion of the
Demised Premises in an improvement or special district. Landlord
covenants and agrees that it will not consent to or apply on its
own behalf for the Demised Premises to be included in an
improvement or special district or subject the Demised Premises
to a user fee for any utilities or other service without the
prior written consent of Tenant, which consent shall not be
unreasonably withheld.
5. UTILITIES. Tenant shall be responsible for and shall
pay all utilities used by the Tenant during the term hereof,
whether the same be billed to the Tenant directly by the utility
furnishing same or as additional rent as Tenant's share billed by
Landlord.
6. USE. Tenant shall have the right to use and/or occupy
the Demised Premises as a Truckstop Facility, or for any other
lawful use. As used herein, the term "Truckstop Facility" shall
include the operation of a restaurant, motel, fuel service
station, merchandise store, repair garage, and parking for trucks
and motor vehicles, either alone or in any combination, with the
right to sell, store and dispense gasoline, kerosene, diesel
fuel, motor oils or other petroleum products and, at Tenant's
option, the right to sell alcoholic beverages. Landlord hereby
covenants, warrants and represents that the use of the Demised
Premises by Tenant as a Truckstop Facility will not conflict with
or constitute a breach of or be a default under any indenture,
mortgage, deed, commitment, lease, agreement or other instrument
to which Landlord is bound or under any existing judgment, order
or decree to which Landlord is a party or otherwise subject to.
If at any time within six (6) months from the Commencement Date,
except for default on the part of Tenant, Tenant's right to use
the Demised Premises, or the premises subject to the Truckstop
Lease, as a Truckstop Facility is legally prohibited, materially
restricted, or terminated for any reason other than an act or
omission of Tenant, Tenant shall notify Landlord in writing of
such event, and Landlord shall use commercially reasonable
efforts to attempt to restore Tenant's right to use the premises
as provided above at Landlord's expense. Upon the failure of
Landlord to restore Tenant's right to use the premises as
provided above, Tenant may attempt to do so. If Landlord is
unsuccessful in restoring Tenant's right to use the premises as
provided above within one hundred twenty (120) days following the
receipt of the notice from Tenant or if Tenant having elected to
take such action on its own is unsuccessful, Tenant may terminate
this lease on not less than ten (10) days written notice to
Landlord.
Notwithstanding the foregoing, upon expiration or earlier
termination of the Gasoline Station Lease, and except in the
event Tenant purchases the premises subject thereto or in the
event of the default by Landlord thereunder which results in
termination thereof, Tenant agrees that it shall not, without the
prior written consent of Landlord, its successors and assigns,
expand the use of the Demised Premises to the extent it is used
as a gasoline service station as of the date of this Lease. For
purposes of this paragraph, expansion of such use shall mean the
construction or installation of additional gasoline distribution
facilities at the Demised Premises beyond the extent to which
such facilities are in existence at or are in operation on the
Demised Premises as of the date of this Lease. The foregoing
shall not be deemed to prevent or preclude Tenant, its successors
or assigns, from repairing, replacing, or maintaining the
facilities at or on the Demised Premises of the date of this
Lease. The foregoing shall be deemed a covenant running with the
land, and shall bind Tenant, its successors and assigns.
7. ALTERATIONS. The Tenant may, at its own expense, make
such alterations, improvements, additions, and changes to the
Demised Premises as it may deem necessary or expedient in the
operation of the Demised Premises, provided the Tenant, without
the written consent of the Landlord, shall not tear down or
materially demolish any of the improvements on the Demised
Premises, or make any material change or alteration in such
improvements which, when completed, would diminish the value of
the Demised Premises.
8. REPAIRS. The Demised Premises and the buildings and
improvements thereon, both outside and inside, together with all
fixtures and appurtenances belonging thereto, all appliances,
machinery and equipment located in or used in connection with the
Demised Premises, the storm and sanitary sewers, plumbing,
electrical, heating, ventilating and air conditioning systems,
underground storage tanks and associated piping (except for tanks
and associated piping heretofore abandoned or taken out-of-
service), fuel equipment, sidewalks, driveways, curbs,
approaches, and parking lots, in, on or about the Demised
Premises (hereinafter collectively called "Improvements") shall
be kept in good order and repair by the Tenant at the Tenant's
sole cost and expense, ordinary wear, tear and obsolescence
excepted. The Tenant shall make all repairs and replacements,
ordinary as well as extraordinary, foreseen and unforeseen,
structural or otherwise, which may be necessary or required so
that the Demised Premises and the Improvements shall remain in
good and operable condition, ordinary wear, tear and obsolescence
only excepted.
9. SURRENDER
Tenant shall on the expiration or the sooner termination of
the Term surrender to Landlord the Demised Premises, including
all buildings, replacements, changes, additions and improvements,
broom-clean and in the same condition as existed as of the
Commencement Date of this Lease, ordinary wear, tear and
obsolescence excepted, subject to the provisions of Section 29.
If Tenant fails to remove any of its personal property, fixtures,
machinery and equipment at such expiration or other termination
of this Lease within ten (10) days from written notice from
Landlord, the same shall be deemed abandoned by the Tenant in
which event such property or any part thereof shall become the
property of the Landlord without any payment or offset therefor,
provided Tenant shall reimburse Landlord for Landlord's
reasonable costs associated with removal thereof. The Tenant
shall repair and restore the Demised Premises and save the
Landlord harmless from all damage to the Demised Premises caused
by such removal of such property by Tenant. Landlord shall not
be responsible for any loss or damage occurring to any property
owned by Tenant or any subtenant. The provisions of this Article
shall survive any termination of this Lease.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. Representations and Warranties. Landlord hereby
represents and warrants to Tenant as follows:
(i) Possession: Subject to paragraph 2 above, the Demised
Premises shall be delivered by Landlord free of all tenancies,
occupancies and other possessory rights as of and upon the
Commencement Date, subject to the Permitted Exceptions set forth
in Schedule D attached hereto.
(ii) No Condemnation. There is no pending or, to the best
knowledge of Landlord, threatened condemnation or similar
proceeding affecting the Demised Premises or any portion thereof,
nor does Landlord have knowledge that any such action is
presently contemplated.
(iii) Compliance with Laws. Except as provided in Section
12, to the best knowledge of Landlord, Landlord and Landlord's
agents, tenants' and predecessors in interest have complied in
all material respects with all applicable laws, ordinances,
regulations, statutes, rules and restrictions pertaining to the
Demised Premises and the operation of the Truckstop Facility
thereon prior to the Commencement Date.
(iv) Litigation. Except as provided in Section 12, there
are no legal actions, suits or other legal or administrative
proceedings, including condemnation cases, pending or, to the
best knowledge of Landlord, threatened, against the Landlord or
the Demised Premises, which involve, relate to or affect the
operation of the Truckstop Facility thereon in a manner which has
or may have material adverse effect on the Truckstop Facility as
presently operated.
(v) Undisclosed Liabilities. Except as provided in
Section 12, Landlord has no liabilities, whether or not accrued,
absolute, contingent or otherwise, which could materially affect
Tenant's possession and use of the Demised Premises as a
Truckstop Facility as presently operated.
(vi) Zoning. The Demised Premises is properly zoned for
use as a Truckstop Facility with a parking lot. Landlord knows
of no action or proceeding, pending or threatened, which will or
may result in the modification or termination of such zoning.
There is not now, nor will there be as of the Commencement Date,
any material uncured violation of any zoning, building or similar
law, ordinance or regulation.
(vii) No Special Assessments. No portion of the Demised
Premises is affected by any special assessment, whether or not
constituting a lien thereon.
(viii) Commitments to Governmental Authorities. No
commitments have been made to any Governmental Authority, utility
company, school board, assessing unit, or other organization,
group or individual, relating to the Demised Premises, which
would impose any obligation upon the Tenant or its successors or
assigns to make any contribution or dedications of money or land,
or to construct, install or maintain any improvements of a public
or private nature on or off the Demised Premises. No
Governmental Authority has imposed any requirement that any owner
or tenant of the Demised Premises pay directly or indirectly any
special fees or contributions or incur any expenses or
obligations in connection with any operations on the Demised
Premises or any part thereof.
(ix) Available Sewer and Water Lines. There are in
existence water and sewer lines and systems to the Demised
Premises having adequate capacity for the transmission of water
and the operation of sanitary and storm sewers to service the
Demised Premises and the operation thereon of Truckstop Facility,
as presently conducted, all of which are available without the
payment of any fees, charges, or costs, (except for usual and
customary usage charges) and without any obligation on Tenant to
construct, install, or modify such systems, either on or off the
Demised Premises.
Except as otherwise provided herein, Landlord is not making
any representations or warranties regarding the physical
condition of the Demised Premises.
B. LANDLORD'S COVENANTS. Landlord covenants to Tenant as
follows:
(i) Covenant of Title. Landlord is well seized of and has
good marketable and indefeasible title to the Demised Premises,
including the personal property, fixtures, machinery and
equipment subject to this lease, free and clear of all mortgages,
liens, encumbrances, leases, tenancies, security interests,
covenants, conditions, restrictions, rights-of-way, easements,
judgments and other matters affecting title, except as disclosed
in Schedule D attached hereto, Permitted Exceptions, and except
for the Excluded Assets set forth on Schedule B attached hereto.
Landlord warrants and will defend such title as herein described.
(ii) Covenant of Quiet Enjoyment. Tenant, upon paying the
rent and performing the other terms, provisions and covenants of
this Lease, shall and may, at all times during the Term of this
Lease, peaceably and quietly have, hold and enjoy the Demised
Premises free of molestation or disturbance by the Landlord.
(iii) Covenant Not To Compete. Provided this Lease has not
been terminated, that Tenant is operating a Gasoline Station and
Convenience Store thereon, that the Lease is in full force and
effect, and that Tenant is not in default beyond any applicable
grace period, Landlord covenants and agrees that any land (other
than the Demised Premises) located within fifty (50) miles of the
Demised Premises whether now or hereafter owned or leased by
Landlord shall not, during the term of this Lease and any
extensions thereof, be leased, used or occupied as a Gasoline
Station and Convenience Store or for the sale, storage or
dispensing of fuel for automobiles or trucks.
(iv) Liens and Encumbrances. Except as expressly provided
in the Permitted Exceptions, Landlord covenants and agrees not to
suffer the Demised Premises at any time during the said term of
this lease or any extension hereof to any lien, charge, or
encumbrance superior to this Lease, and to indemnify and keep
indemnified Tenant against all such liens, charges and
encumbrances.
Except as otherwise provided herein, Landlord is not making
any representations or warranties regarding the physical
condition of the Demised Premises.
11. COMPLIANCE WITH LAW. Throughout the Term of this
Lease, the Tenant shall, at its own cost and expense, promptly
observe and comply with all laws, orders, regulations, rules,
ordinances and requirements of the federal, state, county and
local governments, and of each of them, and of any and all of its
or their administrative departments, bureaus and officials, and
of the local fire insurance rating organization, and of all
insurance companies writing policies covering the premises or any
part thereof, whether such laws, orders, regulations, rules or
requirements relate to structural repairs, changes or alterations
to or in and about the premises or any buildings or improvements
thereon or to repairs, changes or alterations incident to or as
the result of any use or occupation of the premises, or use of
the adjacent sidewalks, and whether the same now are in force, or
that may, at any time in the future, be enacted or directed. The
Tenant shall pay all costs, expenses, claims, fines, penalties
and damages that may in any manner arise out of or be imposed
because of the failure of the Tenant to comply with these
covenants, and shall hold Landlord harmless of and from all
costs, expenses, damages, liabilities, and obligations arising
from the failure of Tenant to comply with these laws.
Notwithstanding anything to the contrary herein, the foregoing
indemnity shall not apply to the extent caused by or contributed
to by Landlord, (subject to the provisions of paragraph 12
below).
12. ENVIRONMENTAL MATTERS.
(a) Landlord and Tenant acknowledge that there have been
substantial tests, investigations and evaluations of the
environmental condition and compliance of the Demised Premises,
including, but not limited to, the following:
1. Phase II Environmental Site Assessment by Southern Well
and Recovery Corp., dated January, 1996
2. Petrotech Tank Tightness Tests, dated November 14, 1995
3. Site Investigation Report, Baltimore Port Truck Plaza
and Mobil Service Station, dated September, 1995, prepared
by APEX Environmental Inc. for Travel Ports of America,
Inc., and Addendum to Site Investigation Report:
Underground Storage Tank Compliance Issues.
4. Tank Test Information - Shirley Environmental Testing,
Inc.
Baltimore Travel Plaza (Truckstop), Job Nos.
111399 and 111398
Mobil Station, Job Nos. 111400 and 111404
Tank Test Results for Tanks and Line Leak Detectors
Reports from Guardian Corrosion Control Corp., Test Results
for STIP-3 Cathodic Protection Tank at Truckstop and Mobil
Station.
5. Letter Report: To Maryland Department of Environment
From: Environmental Technical Services
Date: October 27,
1994
Re: Baltimore Travel Plaza (Mobil)
Closure Sampling Report
6. Tank Test Results: NDE
Environmental Corporation 11/1/93
7. Phase II Environmental Assessment of Baltimore Port
Truck Plaza, dated March 10, 1993, prepared by EMG
Environmental Management Group, Inc.
8. Land Bank Environmental Investigation Report, 5401
O'Donnell Street Cut-off at Interstate Avenue, prepared by
Quality Environmental Solutions, Inc. for Exxon Company,
U.S.A., dated February, 1995.
The foregoing reports are collectively referred to herein as the
"Environmental Audits".
Notwithstanding anything to the contrary herein, Landlord
agrees to assume responsibility for, and hold Tenant harmless
from, all costs, expenses, damages, liabilities and obligations
associated with the Base Line Data, as that term is defined
herein, including the cost of investigation, monitoring, cleanup,
restoration and remediation thereof in compliance with the
requirements of the Environmental Protection Agency, the Maryland
Department of Environment, or other governmental agency which may
exercise jurisdiction and authority over the Demised Premises,
(hereinafter the "Environmental Authorities"). For purposes of
this Lease, the term "Base Line Data" shall mean any petroleum,
hazardous substance, hazardous waste or other environmental
liability or condition (i) set forth or described in the
Environmental Audits, (ii) known to Landlord in connection with
compliance activities prior to the Commencement Date; or (iii)
disclosed to the Environmental Authorities prior to the
Commencement Date.
(b) Landlord agrees to proceed with the cleanup,
remediation and other activities described in Landlord's
Environmental Action Plan, a copy of which is attached hereto and
marked Exhibit "C".
If as a result of the activities described in Landlord's
Environmental Action Plan, or other activities with respect to
the Base Line Data, the levels thereof are correspondingly
reduced, the reduced levels, as documented and reported to the
Environmental Authorities, shall represent the "New Base Line
Data".
(c) Tenant agrees to comply with all requirements of
Environmental Authorities insofar as they relate to operation of
the Demised Premises after the Commencement Date. Tenant's
obligation includes, but is not limited to compliance with
operation, closure and upgrading requirements relating to its
operation on the Demised Premises after the Commencement Date.
Tenant agrees to assume responsibility for and hold Landlord
harmless from all costs, expenses, damages, liabilities and
obligations arising from violation by Tenant of any requirement
of Environmental Authorities pertaining to Tenant's operation of
the Demised Premises after the Commencement Date and
contamination arising after the Commencement Date, including the
costs of (i) cleanup and remediation required by Environmental
Authorities or this Lease, (ii) defense of any claim brought by
third parties arising from environmental contamination, or (iii)
failure to comply with requirements of Environmental Authorities
or this Lease, in each case, to the extent relating to conditions
arising on or after the Commencement Date.
(d) Landlord agrees to comply with all requirements of
Environmental Authorities insofar as they relate to operation of
the Demised Premises prior to the Commencement Date. Landlord's
obligation includes, but is not limited to, compliance with
cleanup, remediation, investigation and closure requirements
relating to operation on the Demised Premises prior to the
Commencement Date, except that Tenant shall comply with all
closure and upgrading requirements for equipment used by it to
the extent closure or upgrading is required after the
Commencement Date. Landlord agrees to assume responsibility for
and hold Tenant harmless from all costs, expenses, damages,
liabilities and obligations arising from violation by Landlord of
any requirement of Environmental Authorities pertaining to
operation of the Demised Premises prior to the Commencement Date
and contamination arising prior to the Commencement Date,
including the costs of (i) cleanup and remediation required by
Environmental Authorities or this Lease, (ii) defense of any
claim brought by third parties arising from environmental
contamination, or (iii) failure to comply with requirements of
Environmental Authorities or this Lease, in each case, to the
extent relating to conditions arising before the Commencement
Date.
(e) Tenant agrees to diligently report and cleanup all
spills, leaks, discharges, or releases of petroleum products or
hazardous substances during its tenancy, and agrees that
environmental contamination arising after the Commencement Date
shall be Tenant's sole obligation and responsibility.
Notwithstanding the foregoing, in no event shall Tenant be
obligated to cleanup or remediate petroleum or other
environmental contamination at a location to levels which are
below the Base Line Data for that same location, except that, if
as a result of a release for which Tenant is responsible,
Environmental Authorities also require remediation of
environmental contamination for which Landlord is responsible,
Tenant shall conduct the remediation until such time as the
contamination is reduced to the levels of the Base Line Data or
New Base Line Data. Tenant and Tenant's agents and contractors
shall have the continuing right upon and after expiration or
sooner termination of this Lease to enter the Demised Premises to
monitor, investigate, cleanup and restore the Demised Premises.
Landlord agrees that no action or proceeding, seeking damages,
equitable relief or otherwise, shall be commenced against Tenant
provided and for so long as Tenant is proceeding with reasonable
diligence with activities designed to reduce such environmental
contamination to levels which approximate the Base Line Data or
the New Base Line Data, as the case may be. Except to the extent
additional contamination above the Base Line Data or New Base
Line Data is discovered, which contamination arises after the
Commencement Date, when such levels are achieved, Tenant shall
have no further liability to Landlord for the environmental
condition of the Demised Premises. For purposes of this
paragraph, Tenant shall be deemed to be proceeding with
reasonable diligence with such activities for so long as it
complies with the requirements of the Environmental Authorities,
in the proper exercise of their jurisdiction and authority.
(f) If, after the Commencement Date, Tenant discovers any
abandoned underground storage tanks, other than those used or
operated by Tenant after the Commencement Date, Tenant shall
notify the Landlord in writing within sixty (60) days of the date
of discovery. Landlord shall assume responsibility for removal
and closure of such tanks and any environmental investigation,
monitoring or remediation associated therewith.
(g) Neither Landlord nor Tenant shall be required to
remediate any contamination beyond requirements of the
Environmental Authorities.
(h) The foregoing notwithstanding, upon Landlord's sale to
Tenant of the Demised Premises, whether pursuant to paragraph 29
or otherwise, Landlord shall have no further obligation to Tenant
for the environmental condition of the Demised Premises or for
compliance with requirements of the Environmental Authorities,
except that Landlord shall have continued responsibility with
respect to any Baseline Contamination or New Baseline
Contamination which, prior to the end of the term of the Lease,
was reported to Environmental Authorities and for which
environmental Authorities have specifically required initiation,
prior to the end of the term of the Lease, of environmental
investigation, assessment, cleanup, remediation, and/or removal
(collectively herein "Baseline Response Activities"). Landlord
shall have responsibility to diligently proceed with such
Baseline Response Activities through to completion. Landlord's
responsibilities with respect to such Baseline Response
Activities shall be deemed completed at such time as: (a)
Landlord certifies to Tenant in writing that such Baseline
Activities have been completed in accord with the requirements of
the Environmental Authorities, and (b) such Environmental
Authorities have issued a letter or other documents indicating
that no further Baseline Response Activities are required.
Nothing in this Section 12 shall be deemed to affect or
impair, or be construed as a release of, any right or claim of
Landlord to insurance coverage, contribution or indemnification,
which Landlord would otherwise be entitled to but for this
Section 12. To the extent Landlord's obligations are limited by
this Section 12, Landlord agrees to assign to Tenant the proceeds
of any such policy of insurance or right to contribution or
indemnification, which, but for this section, would be payable or
otherwise inure to Landlord, and further agrees that Tenant may
prosecute in the name of Landlord any such right or claim for
insurance coverage, contribution or indemnification.
13. MECHANICS' LIENS. Tenant shall have no power to subject
the Demised Premises or Landlord's interest in the premises to
any mechanics' or other liens. If any mechanics' or other liens
or order for payment of money shall be filed against the subject
premises or any building or improvement thereon by reason of or
arising out of any labor or material furnished or alleged to have
been furnished or to be furnished to or for the Tenant at the
Demised Premises, or for or by reason of any change, alteration
or addition or the cost or expense thereof or any contract
relating thereto, the Tenant shall cause the same to be canceled
and discharged of record, by bond or otherwise as allowed by law
at the expense of the Tenant, within sixty (60) days after
written demand therefor.
14. PERMITS.
(a) Tenant has entered into this Lease in the expectation of
obtaining, after expiration of all applicable appeal periods, all
permits, licenses, permissions, changes, variations and or other
authorizations (hereinafter call "Permits") necessary for the
operation of the Truckstop Facility (herein the "facility"),
including without limitation all licenses, authorizations and
permits necessary or required to sell petroleum products and
alcoholic beverages. Tenant agrees to diligently make and
prosecute all necessary applications for such Permits without
unreasonable delay after the execution hereof. Tenant may, but
shall not be obligated to cancel this lease if after first
application therefor, any of such Permits are denied or are not
obtained within ninety (90) days from Commencement Date of this
Lease. Tenant may similarly elect to cancel this Lease in the
event all Permits under the Truckstop Lease and the Gasoline
Station Lease are not obtained within the time and in the manner
specified therein. To the extent any of the Permits are
transferable or assignable, Landlord agrees, at Tenant's sole
expense, to assign and transfer any such Permits requested by
Tenant to the name of Tenant or Tenant's designee.
(b) Landlord agrees to make available for Tenant's use at
the Demised Premises all Permits held by or in the name of
Landlord, to the extent the same are necessary for Tenant to
commence and continue operations at the Demised Premises on the
Demised Premises as of the Commencement Date and for so long as
Tenant's applications for the such Permits are pending or
otherwise not obtainable. Tenant agrees to defend, indemnify and
hold harmless Landlord, and the holders of such Permits if other
than Landlord, from any cost, loss, liability, expense (including
reasonable attorneys fees), and damage suffered or sustained by
Landlord by reason of Tenant's use of said Permits or operations
at the Demised Premises under the authority thereof. The fees
and expenses of maintaining any such Permits after the
Commencement Date shall be borne solely by Tenant.
15. PETROLEUM INVENTORY AND RETAIL INVENTORY.
Intentionally Deleted.
16. INDEMNIFICATION; INSURANCE.
A. Tenant's Indemnification. Tenant agrees to defend,
indemnify, and hold Landlord harmless at all times from and after
the Commencement Date, from and against any losses, liabilities,
damages, expenses (including reasonable attorneys fees),
obligations, suits, actions, claims, and demands relating to,
arising out of or caused in any manner by (i) liabilities and
obligations of Tenant, its subtenants, licensees and invitees
arising on or after the Commencement Date, or which result from
operations of Tenant on or after such date; (ii) any
misrepresentation or breach of warranty or covenant on the part
of the Tenant under this Lease; and (iii) except as otherwise
provided herein, any and all losses, damages, costs or expenses
incurred or sustained by Landlord resulting from, arising out of
or relating to a claim made by any third party or governmental
agency for any act, condition, event, or state of facts relating
to the Demised Premises, occurring subsequent to the Commencement
Date. Notwithstanding anything to the contrary herein, the
foregoing indemnities expressly exclude and shall not apply to
the extent caused by or contributed to by Landlord, (subject to
the provisions of paragraph 12). Tenant's obligation shall
survive termination of this Lease, whether by purchase or
otherwise.
B. Landlord's Indemnification. Landlord agrees to defend,
indemnify, and hold Tenant harmless at all times from and after
the Commencement Date, from and against any losses, liabilities,
damages, expenses (including reasonable attorneys fees),
obligations, suits, actions, claims, and demands relating to,
arising out of or caused in any manner by: (i) liabilities and
obligations of Landlord and its prior tenants, subtenants,
licensees and invitees prior to the Commencement Date, or which
result from operations of the Demised Premises prior to such
date, except as modified by paragraph 12 above; (ii) any
misrepresentation or breach of warranty or covenant on the part
of the Landlord under this Lease; (iii) a claim made by any third
party or governmental agency for any act, condition, event, or
state of facts relating to the Demised Premises, occurring or in
existence prior to the Commencement Date, except as modified by
paragraph 12 above; (iv) any claim by creditors of Landlord or
Landlord's tenants, subtenants or licensees under Article 6 of
the Uniform Commercial Code, which in any way affects or may
affect Tenant's use, possession and enjoyment of the Demised
Premises or the personal property, fixtures, machinery and
equipment subject to this Lease; and (v) any claims by local,
State or Federal authorities for unpaid taxes, assessments,
interest or penalties of Landlord, its tenants, subtenants or
licensees, attributable to the Demised Premises or operations
thereon prior to the Commencement Date. Notwithstanding anything
to the contrary herein, the foregoing indemnities expressly
exclude and shall not apply to the extent caused by or
contributed to by Tenant. Subject to the limitations expressly
provided herein, Landlord's obligations shall survive termination
of this Lease, whether by purchase by Tenant or otherwise.
C. Insurance. Tenant agrees at Tenant's expense to maintain
in force continuously throughout the term of this Lease and any
extension hereof public liability insurance covering the Demised
Premises, with limits of not less than $3,000,000.00 for death or
injury to one person, $5,000,000.00 for death or injury to more
than one person, and $2,000,000.00 for property damage, and shall
upon written request of Landlord furnish Landlord a certificate
issued by Tenant's insurer that such policies of insurance and
any renewals thereof are in force. Renewal policies with such
proof shall be delivered to Landlord within thirty (30) days
prior to expiration of policies. Landlord shall be named as an
additional insured, as its interest may appear, on all such
policies of insurance.
Tenant shall at all times during the Term hereof, at its own
expense, insure and keep insured by responsible insurance
companies authorized to do business in the state where the
Demised Premises are located, the buildings on the premises, and
all alterations, extensions and improvements thereto and
replacements thereof together with all fixtures, machinery and
equipment located thereon, against loss or damage by fire and the
risks contemplated within the extended coverage endorsement, for
the replacement value of the Demised Premises. Tenant agrees to
pay the premiums on the insurance when such premiums become due
and payable, and to promptly deliver to and deposit with the
Landlord all policies of insurance with due proof of payment of
premiums. All policies of fire and other insurance shall be for
the benefit of the Landlord, Tenant and any lender holding a
mortgage on Landlord's interest in the premises superior to this
Lease, as their interests may appear. The interest of any such
mortgagee shall be covered by the customary mortgagee endorsement
employed in this state.
D. Survival. All covenants, agreements, representations and
warranties made by the parties in this Agreement, and in any
other certificates and documents delivered in connection
herewith, shall survive the Commencement Date. All
representations and warranties made by the Landlord in this Lease
shall survive the Commencement Date under this Agreement to the
extent of all claims related thereto which are made on or before
the General Bar Date, (defined below), or thereafter to the
extent any such claims are or would be, but for this limitation,
covered by any policy of liability, casualty or other contract of
insurance or other contract or agreement pursuant to which
Landlord is, or would be, but for this limitation, entitled to
contribution or indemnification. For purposes hereof, the
"General Bar Date" shall mean March 1, 1999.
Notwithstanding the foregoing, (i) Landlord's
representations, warranties and covenants regarding environmental
conditions or liability relating to the Demised Premises shall be
governed solely by paragraph 12 above, and (ii) Landlord's
representations, warranties and covenants regarding tax
liabilities of the Landlord or its predecessors and title to the
Demised Premises, shall survive the Commencement Date and be
binding on Landlord throughout the term of this Lease, and for so
long as Landlord's obligations with respect thereto are
executory.
E. Preservation of Insurance, etc. Nothing in this Section
16 shall be deemed to affect or impair, or be construed as a
release of, any right or claim of Landlord to insurance coverage,
contribution or indemnification, which Landlord would otherwise
be entitled to but for this Section. To the extent Landlord's
obligations are limited by this Section 16, Landlord agrees to
assign to Tenant the proceeds of any such policy of insurance or
right to contribution or indemnification, which, but for this
section, would be payable or otherwise inure to Landlord, and
further agrees that Tenant may prosecute in the name of Landlord
all such rights or claims for insurance coverage, contribution or
indemnification. Nothing in this Section 16 shall be deemed an
assumption by either party of any liability of the other.
17. DAMAGE OR DESTRUCTION. In case of casualty to the
Demised Premises resulting in damage or destruction thereto such
that the premises are substantially unfit for the occupancy or
use herein contemplated, Tenant shall promptly give written
notice thereof to Landlord. In such event Tenant shall restore,
repair, replace, rebuild or alter the Demised Premises, at
Tenant's sole cost and expense, as nearly as possible to its
value, condition and character immediately prior to such damage
or destruction. Tenant shall promptly and diligently restore the
Demised Premises at Tenant's expense to substantially the same
condition existing prior to the occurrence of the casualty or
peril.
18. CONDEMNATION
(a) If the whole or any part of the Demised Premises shall
be taken or condemned by any competent authority for any public
use or purpose during the term or any extension of this Lease,
Tenant reserves unto itself the right to claim and prosecute its
claim in all appropriate courts and agencies for an award or for
damages for such taking based upon its leasehold ownership
interests in the Demised Premises, and the buildings,
improvements, fixtures, machinery, equipment and other personal
property located thereon, without impairing Landlord's rights
with respect to such taking or injury to Landlord's reversion.
Tenant shall have the right to participate in any condemnation
proceedings or agreement as aforesaid for the purpose of
protecting Tenant's interest hereunder. Landlord shall not enter
into any agreement with respect to any such taking or proceeding
which may affect Tenant's rights under this paragraph without
Tenant's prior written consent.
(b) Notwithstanding the foregoing, if at any time during
the Term of this Lease title to the whole or substantially all of
the Demised Premises shall be taken by the exercise of the right
to condemnation or eminent domain, such that the Demised Premises
are not suitable or fit for the use herein contemplated, or in
the event the award for such taking is less than the Purchase
Price, Tenant may at, Tenant's option cancel and terminate this
Lease without liability as of the date of such taking and the
rent provided to be paid by Tenant shall be apportioned and paid
to the date of such taking.
(c) In the event that title to less than the whole or
substantially all of the Demised Premises shall be taken as
aforesaid, this lease shall terminate only with respect to the
portion of the Demised Premises so taken. In such event, this
Lease shall continue with respect to the portion of Demised
Premises not so taken, provided that, to the extent the Landlord
receives any proceeds of such taking, the annual rent reserved
herein and the purchase price set forth in Section 29 below shall
be equitably reduced.
19. CURING TENANT'S DEFAULTS
Should Tenant fail to perform any of its obligations imposed
by the terms of this Lease promptly before the accrual of any
penalty as provided by law or by any mortgage superior to the
Lease, the Landlord may perform the same and add any such sum or
sums paid or expended in such performance to any rent then due or
thereafter falling due with the same effect as if these sums
shall be and are additional rental. However, this does not grant
Tenant any license or privilege to allow the Demised Premises to
be without the insurance coverage and the failure to promptly
comply with such requirements shall entitle Landlord to
immediately obtain the necessary insurance, and the cost thereof
shall be additional rent and collectible as such.
20. ASSIGNMENT AND SUBLEASES. Tenant shall not assign or
sublet its interest under this Lease, except to a parent,
subsidiary or affiliate corporation of Tenant, without Landlord's
prior written consent, which consent shall not be unreasonably
withheld. In the event of any such assignment, Tenant shall
remain primarily liable for the payment of all rent required to
be paid hereunder and for the performance of all terms, covenants
and conditions herein undertaken by Tenant. Without limitation,
it is agreed that Tenant shall have the right to mortgage or
otherwise encumber its Leasehold interest. Any such assignment
shall not be valid or binding upon Landlord until Landlord shall
have received an original Assignment and Assumption Agreement
executed by the Assignee wherein the Assignee shall assume the
obligations of Tenant under this Lease for the benefit of
Landlord or an original duplicate sublease which shall be subject
to the terms of this Lease.
21. MORTGAGING OF LEASEHOLD ESTATE. In the event that
Tenant shall mortgage its leasehold estate and the mortgagees or
holders of the indebtedness secured by the leasehold mortgage or
trust deed shall notify Landlord in the manner hereinafter
provided for the giving of notice, of the execution of such
mortgage or trust deed and name the place for service of notice
upon such mortgagee, or holder of indebtedness, then in such
event, Landlord hereby agrees for the benefit of such mortgagees
or holders of indebtedness from time to time:
(a) That Landlord will give to any such mortgagee or holder
of indebtedness simultaneously with service on Tenant, a
duplicate of any and all notices or demands given by Landlord to
Tenant from time to time. Such notices shall be given in the
manner and be subject to the provisions of the notice provisions
of this Lease.
(b) That such mortgagee or holder of indebtedness shall
have the privilege of performing any of Tenant's covenants
hereunder or of curing any default of Tenant hereunder or of
exercising any election, option or privilege conferred upon
Tenant by the terms of this Lease.
(c) That Landlord shall not terminate this Lease or
Tenant's right of possession for any default of Tenant, if,
within the period of time within which Tenant might cure said
default under the provisions of this Lease, such mortgagee or
holder of indebtedness commences to eliminate the cause of such
default and proceeds therewith diligently and with reasonable
dispatch as provided.
(d) That, except for the rights to terminate contained in
this Lease, no right, privilege or option to cancel or terminate
this Lease, available to Tenant, shall be deemed to have
exercised effectively unless joined in by any such mortgagee or
holder of the indebtedness.
(e) That no liability for the payment of rental or the
performance of any of Tenant's covenants and agreements hereunder
shall attach to or be imposed upon any mortgagee, trustee under
any trust deed or holder of any indebtedness secured by any
mortgage or trust deed upon the leasehold estate, unless such
mortgagee, trustee, or holder of indebtedness forecloses its
interest and becomes the Tenant hereunder.
22. DEFAULT PROVISIONS
A. Tenant's Default.
(a) If any one or more of the following events (herein
sometimes called "Events of Default") shall happen:
(1) if default shall be made in the due and punctual
payment of the rent reserved under this Lease when and as the
same shall become due and payable which default continues for a
period of ten (10) days after receipt of written notice thereof
from Landlord to Tenant; or
(2) if default shall be made by Tenant in the performance
of or compliance with any of the covenants, agreements, terms or
provisions contained in this Lease, other than those referred to
in the foregoing paragraph (a)(1), and such default shall
continue for a period of thirty (30) days after written notice
thereof from Landlord to Tenant, except that in connection with a
default not curable with due diligence within thirty (30) days,
the time of Tenant within which to cure the same shall be
extended for such time as may be necessary to cure the same with
all due diligence, provided Tenant commences promptly and
proceeds diligently to cure the same and further provided that
such period of time shall not be so extended as to subject
Landlord to any criminal liability; or
(3) if Tenant shall file a voluntary petition in bankruptcy
or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy act or
any other present or future applicable federal, state or other
statute or law, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or
of all or any substantial part of its properties or of the
Demised Premises or any interest of Tenant therein; or
(4) if within thirty (30) days after the commencement of
any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal
bankruptcy act or any other present or future applicable federal,
state or other law, such proceeding shall not have been
dismissed;
(5) if the Demised Premises shall be abandoned by Tenant;
or
(6) if an Event of Default occurs under the Gasoline
Service Station Lease or the Truckstop Lease;
then and in any such event Landlord at any time thereafter during
the continuance of such Events of Default, may give written
notice to Tenant that this Lease and the Term hereby demised and
all rights of Tenant under this Lease shall expire and terminate,
subject to prorations and continuing obligations as herein
provided.
(b) Upon any such expiration or termination of this Lease,
Tenant shall quit and peacefully surrender the Demised Premises
to Landlord, and Landlord, upon or at any time after any such
expiration or termination, may without further notice, enter upon
and re-enter the Demised Premises and possess and repossess
itself thereof, by summary proceedings, ejectment or otherwise,
and may dispossess Tenant and remove Tenant and all other persons
and property from the Demised Premises and may have, hold and
enjoy the Demised Premises and the right to receive all rental
income of and from the same. Any improvements on the Demised
Premise, (except for Tenant's personal property and trade
fixtures), shall become the sole property of Landlord. Re-entry
and removal may be accomplished by summary dispossess
proceedings, by any suitable action or proceeding at law, by
force, or otherwise. Landlord shall be entitled to the benefits
of all provisions of law respecting the speedy recovery of lands
and tenements and may maintain proceedings in forcible entry and
detainer. Tenant waives any right to the service of any notice
of Landlord's intention to re-enter provided pursuant to any
present or future law. Landlord shall not be liable in connection
with any action it takes pursuant to this paragraph.
Notwithstanding any termination; any expiration of Tenant's
right, title and interest pursuant to this Lease, or any re-
entry, repossession, dispossession, taking of possession or
removal, Tenant's liability under all of the provisions of this
Lease shall continue as herein provided.
(c) At any time or from time to time after such expiration
or termination, Landlord may relet the Demised Premises or any
part thereof, in the name of Landlord or otherwise, for such term
or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the Term of this
Lease) and on such conditions (which may include concessions or
free rent) as Landlord, in its uncontrolled discretion, may
determine and may collect and receive the rents therefor.
Notwithstanding the termination or expiration of Tenant's right,
title and interest under this Lease, entry, repossession,
dispossession or removal, Tenant shall be liable to Landlord each
month (and shall pay within ten days after a bill therefor is
submitted by Landlord) for the difference between: (x) all rent
and other amounts payable under the Lease; expenses incurred by
landlord in securing, protecting and re-entering the Demised
Premises and taking possession thereof, in performing any of
Tenant's obligations, in maintaining and repairing the Demised
Premises, whether for re-letting or otherwise, and in re-letting
the Demised Premises; and (y) the net proceeds of any re-letting.
However, Landlord shall not be obligated to re-let the Demised
Premises.
(d) Landlord and Tenant, so far as permitted by law, waive
and will waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of said premises, or any claim
of injury or damage.
(e) No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this
Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term or condition.
No covenant, agreement, term or condition of this Lease to be
performed or complied with by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written
instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every covenant,
agreement, term and condition of this Lease shall continue in
full force and effect with respect to any other then existing or
subsequent breach thereof.
(f) A charge equivalent to two percent (2%) per month of
the payment amount will be due for any rent not received within
ten (10) days of the due date (first day of the month) as
specified in this Lease.
(g) In addition to any other rights set forth above,
Landlord shall have the right to cure Tenant's failure to perform
any obligations set forth in the Lease, which failure remains
uncured beyond any applicable cure period. Any amounts expended
by Landlord shall be reimbursed to Landlord by Tenant, with
interest thereon from the date of the bill at the rate of 5%
above the prime or base rate of First National Bank, N.A. The
failure of this Lease to provide an explicit listing of all
remedies shall not limit either party's right to exercise any or
all remedies available at law or equity. The prevailing party
shall be responsible for all legal fees and expenses incurred by
the other in the event Landlord or Tenant exercises one or more
of the remedies set forth in this Section 22.
B. Landlord's Default.
The parties acknowledge and agree that Tenant is entering
into this Lease with the expectation and upon the condition that
the Truckstop Lease and Gasoline Station Lease will be valid,
binding and effective according to their respective terms, so
that Tenant will be able to use, possess and enjoy the property
and premises subject thereto and the premises demised hereunder
as a single economic enterprise. Landlord acknowledges and
agrees that the landlords under the Truckstop Lease and Gasoline
Station Lease are affiliated with and related to Landlord, that
such leases shall be construed consistently with terms and
provisions hereof, and that a default by the landlord under
either such lease shall be considered a default hereunder. In
addition to and not exclusive of any right or remedy conferred
pursuant to this Lease or at law or in equity, the parties agree
that Tenant may terminate this Lease and the Truckstop Lease and
Gasoline Station Lease in the event of any material breach or
default by Landlord of this Lease, or any material breach by the
landlord under either the Truckstop Lease or Gasoline Station
Lease, in either case in which such breach or default remains
uncured for a period of thirty (30) days from the date of written
notice to Landlord, except that in connection with a default not
curable with due diligence within thirty (30) days, the time of
Landlord within which to cure the same shall be extended for such
time as may be necessary to cure the same with all due diligence,
provided Landlord commences promptly and proceeds diligently to
cure the same.
23. RIGHT OF SET-OFF. Landlord acknowledges that Tenant is
relying upon the covenants, representations and warranties of the
Landlord hereinbefore set forth and that matters so represented
and warranted are material ones. Such covenants,
representations, and warranties shall not be affected or impaired
by any investigation made by Tenant. The breach or failure of
any such covenants, representations or warranties shall
constitute a default by the Landlord hereunder. Landlord agrees
that if Landlord does not cure any such default within thirty
(30) days after receipt of written notice from Tenant, (or if the
default cannot be cured within thirty (30) days, if Landlord
within such period commences such cure and thereafter be
diligently prosecuting such cure) Tenant shall have the right to
deduct its costs to cure said defaults from any rent reserved
hereunder or any other sum payable by Tenant to Landlord pursuant
to this Lease, (including any sums required to be paid by Tenant
in connection with the transactions described in Section 29
below). These remedies are in addition to all other remedies
Tenant may have in law or equity.
Tenant agrees that if it is determined that Tenant has
improperly set-off hereunder, Tenant shall be liable to Landlord
for all resulting damages, including, but not limited to interest
on the improper set-off at the rate of fifteen percent (15%) per
annum. 24. SUCCESSORS AND ASSIGNS. The covenants and
agreements contained in this Lease inure to the benefit of and
are binding upon the parties hereto, their permitted successors
and assigns.
25. MEMORANDUM. This Lease shall not be filed for public
record by any party hereto, but at Tenant's election, Landlord
and Tenant shall execute and acknowledge a memorandum or short
form lease for recording setting forth the parties, description
of the Demised Premises, Term of the Lease, options for extension
of the Term, options to purchase, if any, and any other provision
hereof, the inclusion of which shall be mutually agreed upon by
Landlord and Tenant. Tenant shall pay all costs and expenses of
recording such memorandum.
26. TENANT'S SIGNS. Tenant shall have the right to erect
and maintain its usual and customary signs on the premises,
provided the same shall conform in every way with the rules and
regulations of the building department having jurisdiction and
with any law or ordinance of the state, county, and/or
municipality.
27. CONTINUING OPERATION. Tenant covenants to conduct its
business so as to prevent the termination or suspension by lapse
of time, non-use or otherwise, of any of the permits, licenses,
rights, privileges (including without limitation any specially
permitted uses or non-conforming zoning uses) in existence as of
the date Tenant takes possession of the Demised Premises.
28. TRADE FIXTURES, MACHINERY AND EQUIPMENT. Landlord
agrees that all trade fixtures, machinery, equipment, furniture
or other personal property installed on the Demised Premises by
Tenant, shall remain the property of Tenant and may be removed by
Tenant at any time and from time to time during the term of this
Lease without notice to Landlord. The Tenant agrees to repair
any damage to the Demised Premises caused by the removal of
Tenant's trade fixtures, machinery and equipment.
29. OPTION TO PURCHASE:
A. Grant of Option. Provided Tenant is not then in
default, Landlord hereby grants to Tenant the exclusive right, at
Tenant's option, to purchase the Demised Premises, for the
purchase price and upon the terms and conditions hereinafter set
forth.
B. Purchase Price: The purchase price for the Demised
Premises shall be Two Hundred Thousand Dollars, ($200,000.00).
C. Exercise. The foregoing option may be exercised by
Tenant by written notice given to Landlord at any time after
expiration of the third year of this Lease, and thereafter during
the term or any extension or renewal thereof.
D. Transfer of Title. Transfer of title to the Demised
Premises and closing thereof shall proceed as set forth in
Section 30 below.
E. Continued Possession. Provided Tenant has exercised the
foregoing option to purchase the Demised Premises, and is not
otherwise in default of its obligations under this Lease, this
Lease and Tenant's rights to use, possess and enjoy the same
shall continue upon all of its terms and conditions, including
payment of the rent reserved herein, until transfer of the
Demised Premises is consummated as herein provided.
30. TITLE DOCUMENTS; ETC.
(a) In the event Tenant exercises its option to purchase
the Demised Premises pursuant to Section 29 above, Landlord shall
convey good, marketable and indefeasible title in fee simple to
said real estate by good and sufficient special warranty deed,
with release of dower, homestead, curtesy, if any, and free from
all liens, encumbrances, easements and restrictions or other
matters affecting title, except for the Permitted Exceptions set
forth in Schedule D attached hereto, and except such other
easements or rights of way which may be recorded subsequent to
the date of this Lease with Tenant's prior written consent. The
personal property, furniture, fixtures, machinery, equipment or
other property subject to this Lease shall be conveyed to Tenant
"as is", without any express or implied warranty, except for
title thereto, by general warranty bill of sale.
(b) In the event Tenant exercises its option to purchase
the Demised Premises pursuant to Section 29 above, closing of the
transfer of title shall take place not later than ninety (90)
days after the expiration of the primary term of this Lease, or
at such other time as Tenant and Landlord shall mutually agree.
The closing shall take place in Baltimore, Maryland, or at such
other place as Tenant and Landlord may mutually agree upon. If
said thirtieth day falls on a Saturday, Sunday or Holiday, then
the closing shall be the first business day immediately
following.
(c) The risk of loss or damage to the Demised Premises by
fire or other casualty, or by taking eminent domain, after
exercise of this option by Tenant, until delivery of the deed
shall be assumed by Landlord, and upon the happening of such
event, Tenant shall have the election of terminating this option
or the contract resulting from the exercise of this option,
without further liability, in which event any money paid by
Tenant shall be returned, or if completing the purchase and
receiving the insurance monies, collectible for such loss or
damage, or the award for such taking by eminent domain.
(d) The expenses of closing, including transfer and sales
taxes attributable to such sale and transfer, shall be shared
equally by Landlord and Tenant.
31. OPTION TO EXTEND. Landlord hereby grants to Tenant the
right, privilege, and option to extend this Lease for a period of
ninety-nine (99) years, commencing on the expiration of the
primary term of this Lease, which option shall be exercisable
upon notice in writing to Landlord of Tenant's election to
exercise this option. Such notice may be given at any time
during the last year of the primary term of this Lease; provided
that Tenant shall not be deemed to have waived or released such
option until Landlord shall, not more than thirty (30) days prior
to the expiration of the primary term hereof, provide written
notice to Tenant of the terms hereof, and Tenant fails to
exercise such option within thirty (30) days of the date of
receipt thereof. Extension of this Lease as herein provided
shall be upon all of the terms and conditions hereof, including
the rent reserved herein.
32. NOTICES. All notices to the parties shall be addressed
to them at the respective addresses contained herein, or to such
other address, of which either of them shall notify the other in
the manner herein stated for giving notice. The notice must be
given by telecopier and either registered mail, return receipt
requested, or by certified mail, return receipt requested. If
registered mail is used, the service of the notice shall be
deemed complete upon the registration thereof with the postal
authorities, and if certified mail, return receipt requested is
used, the due mailing thereof shall be considered completed
service.
33. WAIVER. The failure of either of the parties to
insist in any one or more instance upon a strict performance of
any of the covenants of this Lease, or to exercise any option
herein contained, shall not be construed as a waiver or
relinquishment in the future of the performance of such covenant,
or the right to exercise such option, but the same shall continue
and remain in full force and effect.
34. ESTOPPEL CERTIFICATES. Each party agrees that from
time to time and upon not less than ten (10) days prior written
request from the other party to execute, acknowledge and deliver
to such other party a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there
have been modifications that the same is in full force and effect
as modified and stating the modifications), that such other party
is not in default hereunder and the dates to which the rent and
other charges have been paid in advance, if any, it being
intended that any such statement delivered pursuant to this
Article may be relied upon by prospective purchasers and
assignees of the each of the respective parties.
35. LANDLORD'S CONSENT. If at any time during the term of
this Lease or any renewal thereof, Landlord is requested to give
its consent and Landlord unreasonable delays in granting its
consent or determines to withhold such consent, in addition to
any other right Tenant may have under this Lease, Tenant shall be
entitled to commence an equitable action to compel Landlord to
give such consent. Landlord shall be liable for any loss,
liability, damage or expense, including attorneys' fees that
Tenant may suffer or incur as a result of Landlord's unreasonable
delay in granting such consent or in the event a court
subsequently determines that such consent was unreasonably
withheld, or as a result of or in connection with Tenant's action
to compel Landlord to give its consent as herein provided.
36. SEVERABILITY. If any term or provision of this Lease
or the application thereof to any person or circumstances shall,
to any extend, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term and
provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
37. REMEDIES CUMULATIVE. All the rights and remedies
herein provided by reason of a default of either of the parties
and all other rights and remedies allowed at law or in equity,
are hereby reserved to each of the parties as distinct, separate
and cumulative remedies, and no one of them shall be deemed to be
in exclusion of any of the others.
38. SUPERIOR INSTRUMENTS. Except as provided herein, this
Lease is subject to each mortgage or deed of trust listed as a
"Permitted Exception" on Exhibit "D" hereto. Without in any way
modifying Tenant's rights or Landlord's obligation under any
other provision of this lease, if the lien of any mortgage, deed
of trust, security indenture or lease is superior to this lease,
(hereinafter collectively called "Superior Instruments"),
Landlord agrees to furnish to Tenant, prior to the Commencement
Date, a recordable agreement, to be executed and acknowledged by
Tenant and the holder or lessor of each Superior Instrument
(hereinafter called "Holder"), which agreement shall have been
executed and acknowledged by Holder, providing as follows:
A. Holder hereby consents to and approves the Lease.
B. Holder agrees that so long as the Lease shall be in
full force and effect and Tenant is in full compliance
therewith:
(i) Tenant shall not be named or joined as a
party defendant or otherwise in any suit, action, or
proceeding for the enforcement or foreclosure of such
Superior Instrument;
(ii) The possession by Tenant of the premises and
Tenant's rights thereto shall not be disturbed,
affected, or impaired by, nor will the Lease or the
term thereof be terminated or otherwise affected by any
suit, action, or proceeding upon or related to any such
Superior Instrument;
(iii) All condemnation awards and insurance
proceeds paid or payable with respect to the Premises
and received by Holder shall be applied and paid in the
manner set forth in the Lease.
C. Holder hereby acknowledges and agrees that all fixtures
and equipment of Tenant installed in or on the Premises,
regardless of the manner or mode of attachment, shall be and
remain the property of Tenant and may be removed by Tenant
any time in accordance with the applicable provisions of the
Lease. In no event (including a default under the Lease or
Mortgage) shall Holder have any liens, rights, or claims in
Tenant's fixtures and equipment; whether or not all or any
part thereof shall be deemed fixtures; and Holder expressly
waives all rights of levy, distraint, or execution with
respect to such fixtures and equipment.
D. If Holder shall become the owner of the Premises by
reason of foreclosure of any Superior Instrument or
otherwise, or if the Premises shall be sold as a result of
any action or proceeding to foreclose a Superior Instrument
or by a deed given in lieu of foreclosure, such purchaser
shall take title to the Demised Premises subject to this
Lease, and all of its terms and conditions set forth herein.
Holder agrees that any sale of the Demises Premises shall be
expressly subject to the terms of this Lease and the tenancy
created hereby, and further, that in the event of any such
sale or transfer this Lease shall continue in full force and
effect, subject to all of its terms and conditions,
(including the rights and obligations set forth in Section
29 hereof), without necessity for executing any new
instrument or lease.
E. This Agreement shall bind and inure to the benefit of
and be enforceable by the parties hereto and their
respective heirs, personal representatives, successors, and
assigns.
F. This agreement contains the entire agreement between
parties and cannot be changed, modified, waived, or canceled
except by an agreement in writing executed by the party
against whom enforcement of such modification, change,
waiver, or cancellation is sought.
G. This Agreement and the covenants herein contained are
intended to run with and bind all lands affected thereby.
39. HOLDING OVER. Unless otherwise agreed, in the event
Tenant continues to occupy the Demised Premises after the last
day of the term or any extension or renewal hereof, and the
Landlord elects to accept rent thereafter, a tenancy from month
to month only shall be created and not for any longer period.
Rent shall otherwise accrue at a rate equal to 150% of the
monthly rent in effect as of the last day of the term.
40. RIGHT OF FIRST REFUSAL. Provided Tenant is not then in
default, throughout the term and any extension of this lease,
Tenant shall have and Landlord hereby grants to Tenant a right of
first refusal, whereby in the event Landlord receives a bona fide
offer to purchase the Demised Premises or to lease the same for a
term which commences at or after the Commencement Date, and
Landlord desires to accept the same, Tenant shall first have the
right, upon fifteen (15) days written notice from Landlord of the
terms and conditions of any such offer, to purchase or lease the
Demised Premises, as the case may be, for and upon the same terms
thereof. Should Tenant desire to purchase or lease the premises
upon such terms and conditions, Tenant shall serve written notice
of exercise of this right of first refusal upon Landlord not
later than fifteen (15) days after receipt of notice of such bona
fide offer from Landlord. In the event Tenant fails to exercise
such right of first refusal within said thirty (30) day period as
aforesaid, said right shall automatically terminate and expire,
and Landlord shall be free to sell, assign, transfer or lease the
premises free from the restrictions hereof. Notwithstanding the
foregoing, Landlord agrees that any sale, transfer, lease or
assignment of the Demised Premises shall be subject in all
respects to this Lease, and all terms, provisions, conditions and
obligations set forth herein. In the event of any such sale,
Landlord shall remain primarily liable for the performance of the
obligations and covenants on the part of Landlord to be performed
pursuant to this Lease.
41. MISCELLANEOUS.
a. Attornment. It is expressly understood and agreed that
Tenant does and hereby takes the premises free from and superior
to all leases, tenancies or possessory interests, and that this
lease shall be and hereby is contingent upon the attornment by
any such persons to Tenant as Sublandlord thereof.
b. Venue. Tenant hereby waives any objection to the
venue of any action filed by Landlord against Tenant in any state
or federal court in the jurisdiction in which the Building is
located, and Tenant further waives any right, claim or power,
under the doctrine of forum non conveniens or otherwise, to
transfer any such action filed by Landlord to any other court.
c. Corporate Authority. If Tenant is a corporation,
concurrently with the signing of this Lease, Tenant shall furnish
to Landlord certified copies of the resolutions of its Board of
Directors (or of the executive committee of its Board of
Directors) authorizing Tenant to enter into this Lease; and it
shall furnish to Landlord evidence (reasonably satisfactory to
Landlord and its counsel) that Tenant is a duly organized
corporation in good standing under the laws of the jurisdiction
of its incorporation, is qualified to do business in good
standing in the jurisdiction in which the Building is located,
has the power and authority to enter into this Lease, and that
all corporate action requisite to authorize Tenant to enter into
this Lease has been duly taken.
d. Time of the Essence. Time is of the essence in the
performance of all obligations under this Lease.
e. Invalidity and Reduction of Charges. If any
provision of this Lease shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be affected thereby and the
remainder of this Lease shall not be affected by such holding and
shall be fully valid and enforceable. In the event any late
charge, interest rate or other payment provided herein exceeds
the maximum applicable charge legally allowed, such late charge,
interest rate or other payment shall be reduced to the maximum
legal charge, rate or amount.
f. Captions. The captions in this Lease are for
convenience only and shall not affect the interpretation of the
provisions hereof.
g. No Partnership. This Lease is not intended to create a
partnership, joint venture or other agency relationship between
Landlord and Tenant in the conduct of their respective
businesses.
h. Counterparts. This Lease may be executed in several
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
i. Authority. If either party is a corporation,
partnership or other legal entity, the individual who executes
and delivers this Lease on behalf of such party represents and
warrants that he or she is duly authorized to do so.
j. No offer. The submission of an unsigned counterpart of
this Lease to Tenant shall not constitute an offer or option to
lease the Leased Premises. This shall become effective and
binding only upon the execution and delivery by Landlord and
Tenant.
k. Enforceability. Each party represents to the other that
this agreement, when fully executed by and between the parties,
shall be binding and enforceable on such party according to its
terms.
42. NO BROKER. The parties each represent and agree that
no act or agreement on the part of either has given or will give
rise to any valid claim against the other for a brokerage
commission, finder's fee or other like payment with respect to
the transactions contemplated by this agreement, it being
expressly agreed that each party shall pay and discharge its own
contractual liability with respect thereto, and that neither
shall not assume any such liability incurred by the other.
43. ENTIRE AGREEMENT. This Lease contains the entire
agreement between the parties, and any agreement hereafter made
shall not operate to change, modify or discharge this Lease in
whole or in part unless such agreement is in writing and signed
by the Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this Lease as
of the day any year first above written.
TRUCK EX, INC.,
Landlord
BY: , General Partner
TRAVEL PORTS OF AMERICA, INC., TENANT
By:
Title:
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
ATTACH MAP
EXHIBIT B
PERMITTED EXCEPTIONS
LEASE
BY AND BETWEEN
Travel Plaza I, Inc.
A Maryland Corporation with Offices at
601 S. Bond Street,
Baltimore, Maryland, Landlord,
and
Travel Ports of America, Inc.,
a New York Corporation with Principal Offices at
3495 Winton Place, Bldg. C,
Rochester, New York, Tenant.
PREMISES:
Mobil Gasoline Station at 5502 O'Donnell Street,
Baltimore, Maryland
TERM:
7 Years
FIRST (1ST) LEASE YEAR COMMENCING ON
THE DAY OF MARCH, 1996.
THREE OPTIONS TO RENEW FOR SEVEN (7) YEARS EACH
OPTION TO PURCHASE AT END OF LEASE TERM
Draft: 2/16/96
LEASE AGREEMENT
This Lease, executed this day of February, 1996
by and between Travel Plaza I, Inc. a Maryland corporation
with principal offices at 601 S. Bond Street, Baltimore,
Maryland, (herein "Landlord"), and Travel Ports of America,
Inc., a New York corporation with principal offices at 3495
Winton Place, Bldg C., Rochester, New York 14623, (herein
"Tenant").
1. PREMISES. Landlord, for and in consideration of the
rents, covenants and agreements hereinafter reserved and
contained on the part of Tenant, its successors and assigns,
to be paid, kept and performed, does hereby demise and lease
to Tenant, and Tenant does hereby take and hire from
Landlord, the premises more commonly known as the Mobil
Gasoline Station, located at 5502 O'Donnell Street, in the
City of Baltimore, Maryland, known as Lot 2 of the Baltimore
Travel Plaza, and more particularly described on Exhibit A
attached hereto, together with all of Landlord's easements,
rights and appurtenances thereto, all buildings and
improvements located thereon, all personal property,
furniture, fixtures, machinery, equipment or other property
located thereon or used in connection with the gasoline
station and convenience store business presently in
operation on said premises, including specifically the
assets and properties located on or in use at said premises
as of August 1, 1995, (said premises, assets and properties
are collectively referred to herein as the "Demised
Premises"), and excluding the assets and properties set
forth on Exhibit B, Schedule of Excluded Assets, attached
hereto, but Tenant shall not be obligated to lease less than
all of the above.
The parties acknowledge and agree that this Lease is
subject to the terms and conditions of a certain Amended and
Restated Declaration and Agreement of Easements by Vernon M.
Limited Partnership and McDonald's Corporation, which
instrument was recorded in the Land Records of Baltimore
City, Maryland in Liber S.E.B. , folio , a
copy of which is attached hereto as Exhibit C. Landlord
represents and warrants to Tenant that said instrument has
been duly recorded and is in full force and effect, and that
Tenant shall succeed to and enjoy, for the term of this
Lease, (and thereafter as successor to Landlord's interest
in the Demised Premises in the event of purchase thereof),
all of the easements, rights, appurtenances and privileges
set forth or referred to therein or which in any way affect
or inure to the benefit of the owner of the Demised
Premises. Tenant covenants and agrees, during the term of
this Lease, (and thereafter in the event Tenant purchases or
succeeds to Landlord's interest in the Demised Premises), to
perform all obligations imposed upon the owner of the
Demised Premises more particularly set forth in said
instrument. Notwithstanding the foregoing, the parties
agree that the covenants and obligations on the part of
Tenant to be performed hereunder are subject to and
conditioned upon Tenant's continued right and privilege of
ingress and egress to the Demised Premises substantially in
the same manner and substantially to the same extent as
presently enjoyed by Landlord of the Demised Premises as of
the date of this Lease.
2. TERM. The primary term of this lease shall
commence on March 1, 1996, or the date possession of the
Demised Premises is delivered to Tenant, if later, (herein
the "Commencement Date"). The term so commenced shall
continue until the expiration of seven (7) years from the
first day of the first calendar month next succeeding the
Commencement Date. When the term hereof is ascertained and
specifically fixed, the parties agree to execute a
memorandum, suitable for recording, at Tenant's option and
expense, which shall specify the Commencement Date, and the
date fixed for expiration of this Lease. Notwithstanding
the foregoing, if Landlord is unable to deliver possession
of the Demised Premises as herein provided on or before
March 1, 1996, for reasons beyond its control and after
commercially reasonable efforts, or if possession of the
premises at 5501 O'Donnell Street, more commonly known as
Baltimore Port Truck Plaza, has not been delivered to Tenant
pursuant to certain leases of even date with Baltimore Port
Truck Plaza Limited Partnership, (herein the "Truckstop
Lease") and Truck Ex, Inc. (herein the "Truck Ex Lease"), on
or before such date, then either party may, at its option,
terminate this lease. Any such termination shall be without
further liability of either party to the other, except that
in the event of such termination by Landlord, Landlord
agrees to pay to Tenant its reasonable costs of inspection,
investigation and due diligence regarding the environmental
condition of the Demised Premises and the said Baltimore
Port Truck Plaza premises. Notwithstanding the foregoing,
Tenant's right to reimbursement under this Lease shall not
exceed the sum of Thirty-Two Thousand Dollars ($32,000.00),
less the sum actually received by Tenant for reimbursement
for such activities under the Truckstop Lease or the Truck
Ex Lease.
3. RENT.
A. Basic Rent. Tenant's liability for rent shall
commence on the Commencement Date. Tenant covenants and
agrees to pay to Landlord annual rent for the Demised
Premises in the amount of Eighty Thousand Dollars
($80,000.00), (herein the "Basic Rent"), payable in equal
monthly installments of Six Thousand Six Hundred Sixty-Six
Dollars and Sixty-Six Cents ($6,666.66). Rent shall be paid
in advance on the first day of each month. In the event of
any partial month, or in the event this lease shall
terminate on other than the last day of the month, the
rental for any such month shall be prorated on the basis of
the number of days of such month in which Tenant leases the
Demised Premises pursuant to this Lease. Tenant covenants
and agrees to pay the rent herein prescribed to Landlord at
landlord's address set forth above or at such other place as
Landlord may from time to time specify by notice given
pursuant to this Lease.
B. Additional Rent. In addition to the Basic Rent,
and commencing as of the first day of the month next
succeeding the Commencement Date (if other than the first
day of the month), and on the same day of every year of this
Lease thereafter, (herein the Anniversary Date), Tenant
shall pay as additional rent, (herein, "Additional Rent"),
an amount equal to TEN PERCENT (10%) of excess of the
"Yearly In-Store Sales", as hereinafter defined, over Three
Hundred Sixty Thousand Dollars ($360,000.00). For purposes
hereof, "Yearly In-Store Sales" shall mean convenience store
and fast food sales of any kind, whether in cash or for
credit, made in, upon or from the Demised Premises, but
shall not include sales or other similar taxes, nor refunds
or allowances to customers by Tenant, nor sales of any
gasoline, diesel, motor oil or other petroleum products,
(except for packaged motor oil and other packaged petroleum
products sold in the store). Tenant shall within fifteen
(15) days of the close every three months during the term of
this Lease deliver to Landlord a statement of In-Store Sales
for the previous three month period. Tenant shall within
fifteen (15) days of each Anniversary Date deliver to
Landlord a statement of Yearly In-Store Sales for the prior
fiscal year and computation of the additional rent as herein
provided. Landlord shall have the right to inspect and
audit the books and records of Tenant's convenience store
and fast food operations during usual business hours and
upon reasonable notice to Tenant. If upon such inspection
and audit it is determined that Tenant has underpaid the
Additional Rent by an amount equal to or greater than Ten
Percent (10%) of the correct Additional Rent, Tenant shall
reimburse and pay to Landlord its reasonable expenses of
such inspection and audit. Landlord agrees that all such
books and records shall be kept confidential and shall not
be disclosed to any persons other than Landlord, its
employees, agents or representatives, or as may be necessary
to enforce the provisions of this Lease. Tenant covenants
to use its best efforts to open fast food services, (subject
to franchise availability and to the extent not otherwise
prohibited or restricted), at the Demised Premises within
six (6) months of the Commencement Date.
C. Minimum Rent. Notwithstanding anything herein to
the contrary, after the first full lease year, Tenant
covenants that in no event shall the Additional Rent be less
than Twenty Thousand Dollars ($20,000.00), so that the sum
of the annual Basic Rent and the annual Additional Rent will
in no event be less than One Hundred Thousand Dollars
($100,000.00) per annum, (herein the "Minimum Rent").
D. Additional Percentage Rent. The parties acknowledge
and agree that Tenant shall assume performance of and shall
succeed to the benefits of a certain fueling agreement with
Greyhound Bus Lines, a copy of which is attached hereto as
Exhibit "E". For so long as said agreement remains in
effect, Tenant agrees to pay to Landlord as further rent
hereunder, (herein the "Additional Percentage Rent"), an
amount equal to thirty-five percent (35%) of the Gross
Margin, as herein defined, of all fuel sold to Greyhound,
together with an amount equal to twenty percent (20%) of all
Bus Dump Revenue collected by Tenant thereunder. For
purposes hereof, "Gross Margin" shall mean the difference
between the price received by Tenant for petroleum products
sold to Greyhound and the price paid by Tenant for the same,
(including any freight charges, taxes and other charges paid
by Tenant in connection with its purchase of the same). For
purposes hereof, "Bus Dump Revenue" shall mean revenue
received by Tenant from Greyhound for disposal of bus sewage
from bus restrooms to the sewage tanks at the Demised
Premises. The Additional Percentage Rent shall be computed
quarterly. Tenant shall pay the Additional Percentage Rent
to Landlord within fifteen (15) days of the close of every
three month period during the term of this Lease. The
parties further agree that, should Tenant purchase the
Demised Premises from Landlord as herein provided, Tenant's
obligation to pay the Additional Percentage Rent shall
survive termination of this Lease, and shall be paid by
Tenant for so long as said agreement remains in effect with
Greyhound Bus Lines. Landlord shall have the same right to
inspect and audit the books and records of Tenant with
respect to calculation and payment of the Additional
Percentage Rent as it does with respect to calculation and
payment of the Additional Rent set forth in subparagraph B
above.
To the extent not inconsistent with or proscribed by
the Amended and Restated Declaration and Agreement of
Easements by Vernon M. Limited Partnership and McDonald's
Corporation set forth in Exhibit "C" attached hereto,
Landlord grants to Tenant during the term and any extension
or renewal of this Lease the easement and non-exclusive
right and privilege to use, operate, maintain, repair and
replace the bus dump facility currently located on Lot 3
described therein, or any replacement thereof. Without
limitation, the foregoing right shall be construed in all
respects so as to allow and provide for the continuation of
the services described in the Greyhound Agreement. Tenant
agrees to pay all costs associated with its operation of
such facility, including any utilities used or consumed by
it in connection with the use thereof during the term of
this Lease. The foregoing rights and obligations shall
survive the purchase of the Demised Premises by Tenant,
pursuant to this Lease or otherwise, and shall be set forth
in any deed effecting any such conveyance or otherwise in an
instrument suitable for recordation.
4. TAXES.
(a) Landlord shall be responsible for all taxes,
special taxes, penalties and interest and all assessments
then a lien, both current and reassessed, and whether due or
to become due, through the Commencement Date. Any such
taxes paid by Landlord for periods including the Term of
this Lease, shall be prorated and paid by Tenant as of the
Commencement Date.
(b) Tenant shall promptly pay, as additional rent
hereunder, any and all real and personal property taxes
levied and assessed upon or against the Demised Premises
during or with respect to the term or any extension or
renewal of this Lease, together with any sales taxes
attributable to or assessed upon the rent payments herein.
Tenant shall pay such taxes when due and simultaneously
provide Landlord with proof of payment of the same. Except
in the event of the purchase of the Demised Premises by
Tenant, pursuant to Section 29 below or otherwise, any such
taxes paid by Tenant for periods beyond the expiration of
the term of this Lease, shall be prorated and paid by
Landlord as of the date of such expiration.
Notwithstanding the foregoing, for each year of the
primary term of this Lease, Tenant shall pay an amount equal
to twenty-five percent (25%) of all real property taxes
assessed on the properties known as Baltimore Travel Plaza
Lots 1, 2 and 3 not to exceed in any event the sum of Thirty
Thousand Dollars ($30,000.00) during any year of this lease,
except to the extent that the actual assessed taxes on Lot 2
are more than $30,000 during any lease year, in which event
Tenant shall pay such actual amount assessed on said Lot 2.
Tenant's obligations under this paragraph shall not apply
during any extension or renewal term of this Lease, which
shall be paid by Tenant as first set forth above.
(c) Tenant shall have the right, in its own name
and/or in the name of the Landlord at Tenant's sole cost and
expense, provided Landlord shall not be subject to any civil
or criminal liability therefor, to make and prosecute
applications for abatement of taxes and/or appeal for
correction of assessment, and Landlord agrees to cooperate
reasonably with Tenant in this regard. Landlord agrees to
sign all necessary instruments in connection with such
application or appeal. Landlord shall not settle any such
application or appeal without Tenant's prior written
approval.
(d) Notwithstanding anything to the contrary herein,
Tenant shall not be obligated to pay any part of any
franchise, excise, estate, inheritance, income, or similar
tax which is or may become payable upon or with respect to
the income or profits of Landlord by reason of any law now
in force or hereafter enacted. With regard to betterments
and special assessments attributable to and levied or
assessed against the Demised Premises, Landlord and Tenant
agree that the same shall be paid for over the maximum
period allowed by law and the Tenant shall be obligated to
pay only those installments which fall due during the term
of this Lease, as it may be extended or renewed, (subject
to prorations). Landlord agrees to give Tenant prompt
notice of any special assessment proceedings to allow Tenant
to oppose such assessments or participate in such
proceedings, and Tenant may, at Tenant's sole cost and
expense, in its own name or the name of Landlord contest any
such proceeding or object to the inclusion of the Demised
Premises in an improvement or special district. Landlord
covenants and agrees that it will not consent to or apply on
its own behalf for the Demised Premises to be included in an
improvement or special district or subject the Demised
Premises to a user fee for any utilities or other service
without the prior written consent of Tenant, which consent
shall not be unreasonably withheld.
5. UTILITIES. Tenant shall be responsible for and
shall pay all utilities used by the Tenant during the term
hereof, whether the same be billed to the Tenant directly by
the utility furnishing same or as additional rent as
Tenant's share billed by Landlord.
6. USE. Tenant shall have the right to use and/or
occupy the Demised Premises as a "Gasoline Service Station
and Convenience Store", or for any other lawful use. As
used herein, the term "Gasoline Service Station and
Convenience Store" shall include the operation of a
restaurant, fuel service station, convenience store, repair
garage, and parking for automobiles and buses, either alone
or in any combination, with the right to sell, store and
dispense gasoline, kerosene, diesel fuel, motor oils or
other petroleum products and, at Tenant's option, the right
to sell alcoholic beverages. Landlord hereby covenants,
warrants and represents that the use of the Demised Premises
by Tenant as a Gasoline Service Station and Convenience
Store will not conflict with or constitute a breach of or be
a default under any indenture, mortgage, deed, commitment,
lease, agreement or other instrument to which Landlord is
bound or under any existing judgment, order or decree to
which Landlord is a party or otherwise subject to. If at
any time within six (6) months from the Commencement Date,
except for default on the part of Tenant, Tenant's right to
use the Demised Premises as a Gasoline Station and
Convenience Store is legally prohibited, materially
restricted, or terminated for any reason other than an act
or omission of Tenant, Tenant shall notify Landlord in
writing of such event, and Landlord shall use commercially
reasonable efforts to attempt to restore Tenant's right to
use the premises as provided above at Landlord's expense.
Upon the failure of Landlord to restore Tenant's right to
use the premises as provided above, Tenant may attempt to do
so. If Landlord is unsuccessful in restoring Tenant's right
to use the premises as provided above within one hundred
twenty (120) days following the receipt of the notice from
Tenant or if Tenant having elected to take such action on
its own is unsuccessful, Tenant may terminate this lease on
not less than ten (10) days written notice to Landlord.
The parties further acknowledge and agree that this
Lease is subject to the terms and conditions of a certain
Restrictive Covenant dated June 25, 1993 by Vernon M.
Limited Partnership and McDonald's Corporation, which
instrument was recorded in the Land Records of Baltimore
City, Maryland in Liber S.E.B. 375, folio 487, which
restricts certain uses of the Demised Premises. Tenant
covenants and agrees, during the term of this Lease, (and
thereafter in the event Tenant purchases or succeeds to
Landlord's interest in the Demised Premises), and for so
long as said agreement is effective, not to use the Demised
Premises for any purpose or use which would constitute a
default or violation of the restrictions set forth therein.
7. ALTERATIONS. The Tenant may, at its own expense,
make such alterations, improvements, additions, and changes
to the Demised Premises as it may deem necessary or
expedient in the operation of the Demised Premises, provided
the Tenant, without the written consent of the Landlord,
shall not tear down or materially demolish any of the
improvements on the Demised Premises, or make any material
change or alteration in such improvements which, when
completed, would diminish the value of the Demised Premises.
8. REPAIRS. The Demised Premises and the buildings and
improvements thereon, both outside and inside, together with
all fixtures and appurtenances belonging thereto, all
appliances, machinery and equipment located in or used in
connection with the Demised Premises, the storm and sanitary
sewers, plumbing, electrical, heating, ventilating and air
conditioning systems, underground storage tanks and
associated piping (except for tanks and associated piping
heretofore abandoned or taken out-of-service), fuel
equipment, sidewalks, driveways, curbs, approaches, and
parking lots, in, on or about the Demised Premises
(hereinafter collectively called "Improvements") shall be
kept in good order and repair by the Tenant at the Tenant's
sole cost and expense, ordinary wear, tear and obsolescence
excepted. The Tenant shall make all repairs and
replacements, ordinary as well as extraordinary, foreseen
and unforeseen, structural or otherwise, which may be
necessary or required so that the Demised Premises and the
Improvements shall remain in good and operable condition,
ordinary wear, tear and obsolescence only excepted.
9. SURRENDER
Tenant shall on the expiration or the sooner
termination of the Term surrender to Landlord the Demised
Premises, including all buildings, replacements, changes,
additions and improvements, broom-clean and in the same
condition as existed as of the Commencement Date of this
Lease, ordinary wear, tear and obsolescence excepted,
subject to the provisions of Section 29. If Tenant fails to
remove any of its personal property, fixtures, machinery and
equipment at such expiration or other termination of this
Lease within ten (10) days from written notice from
Landlord, the same shall be deemed abandoned by the Tenant
in which event such property or any part thereof shall
become the property of the Landlord without any payment or
offset therefor, provided Tenant shall reimburse Landlord
for Landlord's reasonable costs associated with removal
thereof. The Tenant shall repair and restore the Demised
Premises and save the Landlord harmless from all damage to
the Demised Premises caused by such removal of such property
by Tenant. Landlord shall not be responsible for any loss
or damage occurring to any property owned by Tenant or any
subtenant. The provisions of this Article shall survive any
termination of this Lease.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS.
A. Representations and Warranties. Landlord hereby
represents and warrants to Tenant as follows:
(i) Possession: Subject to paragraph 2 above, the
Demised Premises shall be delivered by Landlord free of all
tenancies, occupancies and other possessory rights as of and
upon the Commencement Date, subject to the Permitted
Exceptions set forth in Schedule D attached hereto.
(ii) No Condemnation. There is no pending or, to the
best knowledge of Landlord, threatened condemnation or
similar proceeding affecting the Demised Premises or any
portion thereof, nor does Landlord have knowledge that any
such action is presently contemplated.
(iii) Compliance with Laws. Except as provided in
Section 12, to the best knowledge of Landlord, Landlord and
Landlord's agents, tenants' and predecessors in interest
have complied in all material respects with all applicable
laws, ordinances, regulations, statutes, rules and
restrictions pertaining to the Demised Premises and the
operation of the Truckstop Facility thereon prior to the
Commencement Date.
(iv) Litigation. Except as provided in Section 12,
there are no legal actions, suits or other legal or
administrative proceedings, including condemnation cases,
pending or, to the best knowledge of Landlord, threatened,
against the Landlord or the Demised Premises, which involve,
relate to or affect the operation of the Truckstop Facility
thereon in a manner which has or may have material adverse
effect on the Truckstop Facility as presently operated.
(v) Undisclosed Liabilities. Except as provided in
Section 12, Landlord has no liabilities, whether or not
accrued, absolute, contingent or otherwise, which could
materially affect Tenant's possession and use of the Demised
Premises as a Truckstop Facility as presently operated.
(vi) Zoning. The Demised Premises is properly zoned
for use as a Gasoline Station and Convenience Store with a
parking lot. Landlord knows of no action or proceeding,
pending or threatened, which will or may result in the
modification or termination of such zoning. There is not
now, nor will there be as of the Commencement Date, any
material uncured violation of any zoning, building or
similar law, ordinance or regulation.
(vii) No Special Assessments. No portion of the
Demised Premises is affected by any special assessment,
whether or not constituting a lien thereon.
(viii) Commitments to Governmental Authorities. No
commitments have been made to any Governmental Authority,
utility company, school board, assessing unit, or other
organization, group or individual, relating to the Demised
Premises, which would impose any obligation upon the Tenant
or its successors or assigns to make any contribution or
dedications of money or land, or to construct, install or
maintain any improvements of a public or private nature on
or off the Demised Premises. No Governmental Authority has
imposed any requirement that any owner or tenant of the
Demised Premises pay directly or indirectly any special fees
or contributions or incur any expenses or obligations in
connection with any operations on the Demised Premises or
any part thereof.
(ix) Available Sewer and Water Lines. There are in
existence water and sewer lines and systems to the Demised
Premises having adequate capacity for the transmission of
water and the operation of sanitary and storm sewers to
service the Demised Premises and the operation thereon of a
Gasoline Station and Convenience Store, as presently
conducted, all of which are available without the payment of
any fees, charges, or costs, (except for usual and customary
usage charges) and without any obligation on Tenant to
construct, install, or modify such systems, either on or off
the Demised Premises in order to operate the Gasoline
Station and Convenience Store.
Except as otherwise provided herein, Landlord is not
making any representations or warranties regarding the
physical condition of the Demised Premises.
B. LANDLORD'S COVENANTS. Landlord covenants to Tenant as
follows:
(i) Covenant of Title. Landlord is well seized of and
has good marketable and indefeasible title to the Demised
Premises, including the personal property, fixtures,
machinery and equipment subject to this lease, free and
clear of all mortgages, liens, encumbrances, leases,
tenancies, security interests, covenants, conditions,
restrictions, rights-of-way, easements, judgments and other
matters affecting title, except as disclosed in Schedule D
attached hereto, Permitted Exceptions, and except for the
Excluded Assets set forth on Schedule B attached hereto.
Landlord warrants and will defend such title as herein
described.
Landlord further covenants and agrees that it will
diligently obtain and deliver to Tenant as soon as
practicable after execution of this Lease an appropriate
instrument from the Mayor and City Council of the Baltimore
(the "City"), confirming that the improvements required to
be constructed under the Land Disposition Agreement, as
amended, have been completed to the extent necessary to
terminate any reverter rights held by the City under such
document.
(ii) Covenant of Quiet Enjoyment. Tenant, upon paying
the rent and performing the other terms, provisions and
covenants of this Lease, shall and may, at all times during
the Term of this Lease, peaceably and quietly have, hold and
enjoy the Demised Premises free of molestation or
disturbance by the Landlord.
(iii) Covenant Not To Compete. Provided this Lease
has not been terminated, that Tenant is operating a Gasoline
Station and Convenience Store thereon, that the Lease is in
full force and effect, and that Tenant is not in default
beyond any applicable grace period, Landlord covenants and
agrees that any land (other than the Demised Premises)
located within fifty (50) miles of the Demised Premises
whether now or hereafter owned or leased by Landlord shall
not, during the term of this Lease and any extensions
thereof, be leased, used or occupied as a Gasoline Station
and Convenience Store or for the sale, storage or dispensing
of fuel for automobiles or trucks.
(iv) Liens and Encumbrances. Except as expressly
provided in the Permitted Exceptions, Landlord covenants and
agrees not to suffer the Demised Premises at any time during
the said term of this lease or any extension hereof to any
lien, charge, or encumbrance superior to this Lease, and to
indemnify and keep indemnified Tenant against all such
liens, charges and encumbrances.
(v) Personal Property: Except for the assets and
properties set forth in Schedule B attached hereto, Landlord
covenants and agrees that possession of the personal
property, furniture, fixtures, machinery, equipment or other
property located or in operation at or on the Demised
Premises as of August 1, 1995, will be delivered to Tenant
on the Commencement Date, and further covenants and agrees
that the same shall, as of the Commencement Date, be in
substantially the same condition as existed as of said
August 1, 1995, ordinary wear and tear excepted, suitable
for operation of the Gasoline Station and Convenience Store
as it is operated as of the date hereof in all material
respects.
11. COMPLIANCE WITH LAW. Throughout the Term of this
Lease, the Tenant shall, at its own cost and expense,
promptly observe and comply with all laws, orders,
regulations, rules, ordinances and requirements of the
federal, state, county and local governments, and of each of
them, and of any and all of its or their administrative
departments, bureaus and officials, and of the local fire
insurance rating organization, and of all insurance
companies writing policies covering the premises or any part
thereof, whether such laws, orders, regulations, rules or
requirements relate to structural repairs, changes or
alterations to or in and about the premises or any buildings
or improvements thereon or to repairs, changes or
alterations incident to or as the result of any use or
occupation of the premises, or use of the adjacent
sidewalks, and whether the same now are in force, or that
may, at any time in the future, be enacted or directed. The
Tenant shall pay all costs, expenses, claims, fines,
penalties and damages that may in any manner arise out of or
be imposed because of the failure of the Tenant to comply
with these covenants, and shall hold Landlord harmless of
and from all costs, expenses, damages, liabilities, and
obligations arising from the failure of Tenant to comply
with these laws. Notwithstanding anything to the contrary
herein, the foregoing indemnity shall not apply to the
extent caused by or contributed to by Landlord, (subject to
the provisions of paragraph 12 below).
12. ENVIRONMENTAL MATTERS.
(a) Landlord and Tenant acknowledge that there have
been substantial tests, investigations and evaluations of
the environmental condition and compliance of the Demised
Premises, including, but not limited to, the following:
1. Phase II Environmental Site Assessment by Southern
Well and Recovery Corp., dated January, 1996
2. Petrotech Tank Tightness Tests, dated November 14,
1995
3. Site Investigation Report, Baltimore Port Truck
Plaza and Mobil Service Station, dated September, 1995,
prepared by APEX Environmental Inc. for Travel Ports of
America, Inc., and Addendum to Site Investigation
Report: Underground Storage Tank Compliance Issues.
4. Tank Test Information - Shirley Environmental
Testing, Inc.
Baltimore Travel Plaza (Truckstop), Job Nos.
111399 and 111398
Mobil Station, Job Nos. 111400 and 111404
Tank Test Results for Tanks and Line Leak Detectors
Reports from Guardian Corrosion Control Corp., Test
Results from STIP-3 Cathodic Protection Tank at
Truckstop and Mobil Station.
5. Letter Report: To Maryland Department of
Environment
From: Environmental Technical
Services
Date: October
27, 1994
Re: Baltimore Travel Plaza (Mobil)
Closure Sampling Report
6. Tank Test Results: NDE
Environmental Corporation
11/1/93
7. Phase II Environmental Assessment of Baltimore Port
Truck Plaza, dated March 10, 1993, prepared by EMG
Environmental Management Group, Inc.
The foregoing reports are collectively referred to herein as
the "Environmental Audits".
Notwithstanding anything to the contrary herein,
Landlord agrees to assume responsibility for, and hold
Tenant harmless from, all costs, expenses, damages,
liabilities and obligations associated with the Base Line
Data, as that term is defined herein, including the cost of
investigation, monitoring, cleanup, restoration and
remediation thereof in compliance with the requirements of
the Environmental Protection Agency, the Maryland Department
of Environment, or other governmental agency which may
exercise jurisdiction and authority over the Demised
Premises, (hereinafter the "Environmental Authorities").
For purposes of this Lease, the term "Base Line Data" shall
mean any petroleum, hazardous substance, hazardous waste or
other environmental contamination: (i) set forth or
described in the Environmental Audits; (ii) known to
Landlord prior to the Commencement Date or discovered as a
result of the activities described in Landlord's
Environmental Action Plan described in subparagraph (b)
below; or (iii) disclosed to the Environmental Authorities
prior to the Commencement Date.
(b) Landlord agrees to proceed with the cleanup,
remediation and other activities described in Landlord's
Environmental Action Plan, a copy of which is attached
hereto and marked Exhibit "F". If as a result of the
activities described in Landlord's Environmental Action
Plan, or other activities with respect to the Base Line
Data, the levels thereof are correspondingly reduced, the
reduced levels, as documented and reported to the
Environmental Authorities, shall represent the "New Base
Line Data".
(c) Tenant agrees to comply with all requirements of
Environmental Authorities insofar as they relate to
operation of the Demised Premises after the Commencement
Date. Tenant's obligation includes, but is not limited to
compliance with operation, closure and upgrading
requirements relating to its operation on the Demised
Premises after the Commencement Date. Tenant agrees to
assume responsibility for and hold Landlord harmless from
all costs, expenses, damages, liabilities and obligations
arising from violation by Tenant of any requirement of
Environmental Authorities pertaining to Tenant's operation
of the Demised Premises after the Commencement Date and
contamination arising after the Commencement Date, including
the costs of (i) cleanup and remediation required by
Environmental Authorities or this Lease, (ii) defense of any
claim brought by third parties arising from environmental
contamination, or (iii) failure to comply with requirements
of Environmental Authorities or this Lease, in each case, to
the extent relating to conditions arising on or after the
Commencement Date.
(d) Landlord agrees to comply with all requirements of
Environmental Authorities insofar as they relate to
operation of the Demised Premises prior to the Commencement
Date. Landlord's obligation includes, but is not limited
to, compliance with cleanup, remediation, investigation and
closure requirements relating to operation on the Demised
Premises prior to the Commencement Date, except that Tenant
shall comply with all closure and upgrading requirements for
equipment used by it to the extent closure or upgrading is
required after the Commencement Date. Landlord agrees to
assume responsibility for and hold Tenant harmless from all
costs, expenses, damages, liabilities and obligations
arising from violation by Landlord of any requirement of
Environmental Authorities pertaining to operation of the
Demised Premises prior to the Commencement Date and
contamination arising prior to the Commencement Date,
including the costs of (i) cleanup and remediation required
by Environmental Authorities or this Lease, (ii) defense of
any claim brought by third parties arising from
environmental contamination, or (iii) failure to comply with
requirements of Environmental Authorities or this Lease, in
each case, to the extent relating to conditions arising
before the Commencement Date.
(e) Tenant agrees to diligently report and cleanup all
spills, leaks, discharges, or releases of petroleum products
or hazardous substances during its tenancy, and agrees that
environmental contamination arising after the Commencement
Date shall be Tenant's sole obligation and responsibility.
Notwithstanding the foregoing, in no event shall Tenant be
obligated to cleanup or remediate petroleum or other
environmental contamination at a location to levels which
are below the Base Line Data for that same location, except
that, if as a result of a release for which Tenant is
responsible, Environmental Authorities also require
remediation of environmental contamination for which
Landlord is responsible, Tenant shall conduct the
remediation until such time as the contamination is reduced
to the levels of the Base Line Data or New Base Line Data.
Tenant and Tenant's agents and contractors shall have the
continuing right upon and after expiration or sooner
termination of this Lease to enter the Demised Premises to
monitor, investigate, cleanup and restore the Demised
Premises. Landlord agrees that no action or proceeding,
seeking damages, equitable relief or otherwise, shall be
commenced against Tenant provided and for so long as Tenant
is proceeding with reasonable diligence with activities
designed to reduce such environmental contamination to
levels which approximate the Base Line Data or the New Base
Line Data, as the case may be. Except to the extent
additional contamination above the Base Line Data or New
Base Line Data is discovered, which contamination arises
after the Commencement Date, when such levels are achieved,
Tenant shall have no further liability to Landlord for the
environmental condition of the Demised Premises. For
purposes of this paragraph, Tenant shall be deemed to be
proceeding with reasonable diligence with such activities
for so long as it complies with the requirements of the
Environmental Authorities, in the proper exercise of their
jurisdiction and authority.
(f) If, after the Commencement Date, Tenant discovers
any abandoned underground storage tanks, other than those
used or operated by Tenant after the Commencement Date,
Tenant shall notify the Landlord in writing within sixty
(60) days of the date of discovery. Landlord shall assume
responsibility for removal and closure of such tanks and any
environmental investigation, monitoring or remediation
associated therewith.
(g) Neither Landlord nor Tenant shall be required to
remediate any contamination beyond requirements of the
Environmental Authorities.
(h) The foregoing notwithstanding, upon Landlord's
sale to Tenant of the Demised Premises, whether pursuant to
paragraph 29 or otherwise, Landlord shall have no further
obligation to Tenant for the environmental condition of the
Demised Premises or for compliance with requirements of the
Environmental Authorities, except that Landlord shall have
continued responsibility with respect to any Baseline
Contamination or New Baseline Contamination which, prior to
the end of the term of the Lease, was reported to
Environmental Authorities and for which environmental
Authorities have specifically required initiation, prior to
the end of the term of the Lease, of environmental
investigation, assessment, cleanup, remediation, and/or
removal (collectively herein "Baseline Response
Activities"). Landlord shall have responsibility to
diligently proceed with such Baseline Response Activities
through to completion. Landlord's responsibilities with
respect to such Baseline Response Activities shall be deemed
completed at such time as: (a) Landlord certifies to Tenant
in writing that such Baseline Activities have been completed
in accord with the requirements of the Environmental
Authorities, and (b) such Environmental Authorities have
issued a letter or other documents indicating that no
further Baseline Response Activities are required.
Nothing in this Section 12 shall be deemed to affect or
impair, or be construed as a release of, any right or claim
of Landlord to insurance coverage, contribution or
indemnification, which Landlord would otherwise be entitled
to but for this Section 12. To the extent Landlord's
obligations are limited by this Section 12, Landlord agrees
to assign to Tenant the proceeds of any such policy of
insurance or right to contribution or indemnification,
which, but for this section, would be payable or otherwise
inure to Landlord, and further agrees that Tenant may
prosecute in the name of Landlord any such right or claim
for insurance coverage, contribution or indemnification.
13. MECHANICS' LIENS. Tenant shall have no power to
subject the Demised Premises or Landlord's interest in the
premises to any mechanics' or other liens. If any
mechanics' or other liens or order for payment of money
shall be filed against the subject premises or any building
or improvement thereon by reason of or arising out of any
labor or material furnished or alleged to have been
furnished or to be furnished to or for the Tenant at the
Demised Premises, or for or by reason of any change,
alteration or addition or the cost or expense thereof or any
contract relating thereto, the Tenant shall cause the same
to be canceled and discharged of record, by bond or
otherwise as allowed by law at the expense of the Tenant,
within sixty (60) days after written demand therefor.
14. PERMITS AND ASSUMED CONTRACTS.
(a) Tenant has entered into this Lease in the
expectation of obtaining, after expiration of all applicable
appeal periods, all permits, licenses, permissions, changes,
variations and or other authorizations (hereinafter call
"Permits") necessary for the operation of the Gasoline
Service Station and Convenience Store (herein the
"facility"), including without limitation all licenses,
authorizations and permits necessary or required to sell
petroleum products and alcoholic beverages. Tenant agrees
to diligently make and prosecute all necessary applications
for such Permits without unreasonable delay after the
execution hereof. Tenant may, but shall not be obligated to
cancel this lease if after first application therefor, any
of such Permits are denied or are not obtained within ninety
(90) days from Commencement Date of this Lease. Tenant may
similarly elect to cancel this Lease in the event all
Permits under the Truck Ex Lease and the Truckstop Lease are
not obtained within the time and in the manner specified
therein. To the extent any of the Permits are transferable
or assignable, Landlord agrees, at Tenant's sole expense, to
assign and transfer any such Permits requested by Tenant to
the name of Tenant or Tenant's designee.
(b) Landlord agrees to make available for Tenant's use
at the Demised Premises all Permits held by or in the name
of Landlord, to the extent the same are necessary for Tenant
to commence and continue operations at the Demised Premises
on the Demised Premises as of the Commencement Date and for
so long as Tenant's applications for the such Permits are
pending or otherwise not obtainable. Tenant agrees to
defend, indemnify and hold harmless Landlord, and the
holders of such Permits if other than Landlord from any
cost, loss, liability, expense (including reasonable
attorneys fees), and damage suffered or sustained by
Landlord by reason of Tenant's use of said Permits or
operations at the Demised Premises under the authority
thereof. The fees and expenses of maintaining any such
Permits after the Commencement Date shall be borne solely by
Tenant.
(c) As of the Commencement Date, Tenant agrees to
assume Landlord's rights, duties and obligations with
respect to the contracts and agreements set forth and
described in Exhibit D, Schedule of Assumed Contracts,
attached hereto. Tenant further agrees to defend, indemnify
and hold Landlord harmless from any cost, loss, liability,
expense (including reasonable attorneys fees), and damage
suffered or sustained by Landlord by reason of Tenant's
breach or non-performance thereof at any time after the
Commencement Date.
15. PETROLEUM INVENTORY AND RETAIL INVENTORY;
REIMBURSEMENT FOR CAPITAL EXPENDITURES.
A. Petroleum Inventory and Retail Inventory.
Provided this lease is in full force and effect, and
possession of the Demised Premises has been delivered to
Tenant, Tenant agrees to purchase from Landlord, all of
Landlord's inventory of useable and saleable motor fuels for
resale, (herein the "Petroleum Inventory"), and Landlord's
convenience store, restaurant and other inventory, and other
supplies (herein the "Retail Inventory") on hand as of the
Commencement Date. The price for the Petroleum Inventory
and the Retail Inventory shall be determined as follows:
(i) Petroleum Inventory. The purchase price for the
Petroleum Inventory shall be the lower of cost or
market. The cost of the Petroleum Inventory shall be
the invoiced cost thereof, if available, as documented
by Landlord. Such valuation shall be on a "first in,
first out" basis, such that only the most recent
purchases of products shall be deemed to be included in
its unsold Petroleum Inventory. The market price of
the Petroleum Inventory shall be determined as the cost
of the same products from the same supplier as of the
Commencement Date. In no event shall Tenant be
obligated to purchase any portion of the Petroleum
Inventory which is not merchantable, usable and
saleable, or which is contaminated or unfit for resale
as Tenant in its sole discretion reasonably determines.
(ii) The Retail Inventory shall be audited by an
independent inventory firm agreed upon by the parties
on the Commencement Date, or as soon thereafter as is
practicable. The purchase price for the Retail
Inventory shall be the lower of cost or market. The
cost of the Retail Inventory shall be the invoiced cost
thereof, as documented by Landlord, if available. Such
valuation shall be on a "first in, first out" basis,
such that only the most recent purchases of products
shall be deemed to be included in the Retail Inventory.
The Retail Inventory shall not include, and Tenant
shall not be obligated to purchase items which are
obsolete, discontinued, damaged, or otherwise
unmerchantable items, the determination of which shall
be at Tenant's reasonable discretion. The market price
of the Retail Inventory shall be determined as the cost
of the same products from the same supplier as of the
Commencement Date. Subject to agreement by both
parties, the cost of the Retail Inventory may be
computed by discounting the retail value of such
audited Retail inventory at the Demised Premises by a
percentage equal to average gross margin for the
previous twelve (12) month period, if available.
B. Reimbursement for Capital Expenditures. Tenant
agrees to reimburse and pay to Landlord an amount equal to
Landlord's capital expenditures for improvements to personal
or other property used in connection with the Demised
Premises, made or incurred by Landlord since September 1,
1995, all of which shall be and hereby are made subject to
this Lease. Notwithstanding the foregoing, Tenant shall not
be required to pay or reimburse to Landlord an amount
greater than $5,000 in the aggregate for such items. Tenant
shall make such payment with Tenant's first installment of
rent due hereunder.
16. INDEMNIFICATION; INSURANCE.
A. Tenant's Indemnification. Tenant agrees to defend,
indemnify, and hold Landlord harmless at all times from and
after the Commencement Date, from and against any losses,
liabilities, damages, expenses (including reasonable
attorneys fees), obligations, suits, actions, claims, and
demands relating to, arising out of or caused in any manner
by (i) liabilities and obligations of Tenant, its
subtenants, licensees and invitees arising on or after the
Commencement Date, or which result from operations of Tenant
on or after such date; (ii) any misrepresentation or breach
of warranty or covenant on the part of the Tenant under this
Lease; and (iii) except as otherwise provided herein, any
and all losses, damages, costs or expenses incurred or
sustained by Landlord resulting from, arising out of or
relating to a claim made by any third party or governmental
agency for any act, condition, event, or state of facts
relating to the Demised Premises, occurring subsequent to
the Commencement Date. Notwithstanding anything to the
contrary herein, the foregoing indemnities expressly exclude
and shall not apply to the extent caused by or contributed
to by Landlord, (subject to the provisions of paragraph 12).
Tenant's obligation shall survive termination of this Lease,
whether by purchase or otherwise.
B. Landlord's Indemnification. Landlord agrees to
defend, indemnify, and hold Tenant harmless at all times
from and after the Commencement Date, from and against any
losses, liabilities, damages, expenses (including reasonable
attorneys fees), obligations, suits, actions, claims, and
demands relating to, arising out of or caused in any manner
by: (i) liabilities and obligations of Landlord and its
prior tenants, subtenants, licensees and invitees prior to
the Commencement Date, or which result from operations of
the Demised Premises prior to such date, except as modified
by paragraph 12 above; (ii) any misrepresentation or breach
of warranty or covenant on the part of the Landlord under
this Lease; (iii) a claim made by any third party or
governmental agency for any act, condition, event, or state
of facts relating to the Demised Premises, occurring or in
existence prior to the Commencement Date, except as modified
by paragraph 12 above; (iv) any claim by creditors of
Landlord or Landlord's tenants, subtenants or licensees
under Article 6 of the Uniform Commercial Code, which in any
way affects or may affect Tenant's use, possession and
enjoyment of the Demised Premises or the personal property,
fixtures, machinery and equipment subject to this Lease; and
(v) any claims by local, State or Federal authorities for
unpaid taxes, assessments, interest or penalties of
Landlord, its tenants, subtenants or licensees, attributable
to the Demised Premises or operations thereon prior to the
Commencement Date. Notwithstanding anything to the contrary
herein, the foregoing indemnities expressly exclude and
shall not apply to the extent caused by or contributed to by
Tenant. Subject to the limitations expressly provided
herein, Landlord's obligations shall survive termination of
this Lease, whether by purchase by Tenant or otherwise.
C. Insurance. Tenant agrees at Tenant's expense to
maintain in force continuously throughout the term of this
Lease and any extension hereof public liability insurance
covering the Demised Premises, with limits of not less than
$3,000,000.00 for death or injury to one person,
$5,000,000.00 for death or injury to more than one person,
and $2,000,000.00 for property damage, and shall upon
written request of Landlord furnish Landlord a certificate
issued by Tenant's insurer that such policies of insurance
and any renewals thereof are in force. Renewal policies
with such proof shall be delivered to Landlord within thirty
(30) days prior to expiration of policies. Landlord shall
be named as an additional insured, as its interest may
appear, on all such policies of insurance.
Tenant shall at all times during the Term hereof, at
its own expense, insure and keep insured by responsible
insurance companies authorized to do business in the state
where the Demised Premises are located, the buildings on the
premises, and all alterations, extensions and improvements
thereto and replacements thereof together with all fixtures,
machinery and equipment located thereon, against loss or
damage by fire and the risks contemplated within the
extended coverage endorsement, for the replacement value of
the Demised Premises. Tenant agrees to pay the premiums on
the insurance when such premiums become due and payable, and
to promptly deliver to and deposit with the Landlord all
policies of insurance with due proof of payment of premiums.
All policies of fire and other insurance shall be for the
benefit of the Landlord, Tenant and any lender holding a
mortgage on Landlord's interest in the premises superior to
this Lease, as their interests may appear. The interest of
any such mortgagee shall be covered by the customary
mortgagee endorsement employed in this state.
D. Survival. (a) All covenants, agreements,
representations and warranties made by the parties in this
Agreement, and in any other certificates and documents
delivered in connection herewith, shall survive the
Commencement Date. All representations and warranties made
by the Landlord in this Lease shall survive the Commencement
Date under this Agreement to the extent of all claims
related thereto which are made on or before the General Bar
Date, (defined below), or thereafter to the extent any such
claims are or would be, but for this limitation, covered by
any policy of liability, casualty or other contract of
insurance or other contract or agreement pursuant to which
Landlord is, or would be, but for this limitation, entitled
to contribution or indemnification. For purposes hereof,
the "General Bar Date" shall mean March 1, 1999.
Notwithstanding the foregoing and subject to
subparagraph F below, Upper Limit, (i) Landlord's
representations, warranties and covenants regarding
environmental conditions or liability relating to the
Demised Premises shall be governed solely by paragraph 12
above, and (ii) Landlord's representations, warranties and
covenants regarding tax liabilities of the Landlord or its
predecessors and title to the Demised Premises, shall
survive the Commencement Date and be binding on Landlord
throughout the term of this Lease, and for so long as
Landlord's obligations with respect thereto are executory.
E. Basket. Except as set forth in subparagraph G
below, Tenant shall be entitled to indemnification hereunder
for all losses, costs, expenses or damages with respect to
or resulting from breach of any representation or warranty
by the Landlord or any unknown environmental condition of or
liability with respect to the Demised Premises (herein
"Losses"), only after the aggregate of all such Losses
exceeds the sum of Fifty Thousand Dollars ($50,000), herein
(the "Basket").
F. Upper Limit. Subject only to subparagraph G below,
the parties agree that the Tenant shall be entitled to
recover from the Landlord for Losses suffered by the Tenant,
only up to an aggregate amount of Five Hundred Thousand
Dollars ($500,000.00), (over and above, and in addition to
any amount payable under any policy of insurance or claim
for indemnification or contribution otherwise inuring to
Landlord), the sole source of which, (except in the case of
a wilful or intentional breach), shall be Tenant's right of
set-off under Section 23 hereof.
G. Exclusions from Basket and Upper Limit.
Notwithstanding anything to the contrary herein, the
limitations set forth in subparagraphs E and F above shall
not affect, impair, restrict or limit, and there shall be
excluded from the Basket and Upper Limit, Losses suffered by
Tenant in connection with or as a result of (i) claims,
demands, liabilities or actions by, against or relating to
the Landlord's present or former tenants of the Demised
Premises, or creditors of such tenants, (collectively herein
"Tenant Matters"), (ii) Landlord's obligations with respect
to the Baseline Data under Section 12 above, (herein
"Baseline Matters"), (iii) claims made, threatened or
asserted, or liabilities or breach of representations or
warranties of which the Landlord or its affiliates have
knowledge, in each case prior to the Commencement Date,
(herein "Known Claims"); (iv) Landlord's affirmative
covenants in this Lease, (other than Landlord's covenants
with respect to unknown environmental conditions under
Section 12 above), including, without limitation Landlord's
obligation to deliver to Tenant good and marketable title to
and possession of the Demised Premises, (herein "Title
Matters").
H. Preservation of Insurance, etc. Nothing in this
Section 16 shall be deemed to affect or impair, or be
construed as a release of, any right or claim of Landlord to
insurance coverage, contribution or indemnification, which
Landlord would otherwise be entitled to but for this
Section. To the extent Landlord's obligations are limited
by this Section 16, Landlord agrees to assign to Tenant the
proceeds of any such policy of insurance or right to
contribution or indemnification, which, but for this
section, would be payable or otherwise inure to Landlord,
and further agrees that Tenant may prosecute in the name of
Landlord all such right or claim for insurance coverage,
contribution or indemnification. Nothing in this Section 16
shall be deemed an assumption by either party of any
liability of the other.
17. DAMAGE OR DESTRUCTION. In case of casualty to the
Demised Premises resulting in damage or destruction thereto
such that the premises are substantially unfit for the
occupancy or use herein contemplated, Tenant shall promptly
give written notice thereof to Landlord. In such event
Tenant shall restore, repair, replace, rebuild or alter the
Demised Premises, at Tenant's sole cost and expense, as
nearly as possible to its value, condition and character
immediately prior to such damage or destruction. Tenant
shall promptly and diligently restore the Demised Premises
at Tenant's expense to substantially the same condition
existing prior to the occurrence of the casualty or peril.
18. CONDEMNATION
(a) If the whole or any part of the Demised Premises
shall be taken or condemned by any competent authority for
any public use or purpose during the term or any extension
of this Lease, Tenant reserves unto itself the right to
claim and prosecute its claim in all appropriate courts and
agencies for an award or for damages for such taking based
upon its leasehold ownership interests in the Demised
Premises, and the buildings, improvements, fixtures,
machinery, equipment and other personal property located
thereon, without impairing Landlord's rights with respect to
such taking or injury to Landlord's reversion. Tenant shall
have the right to participate in any condemnation
proceedings or agreement as aforesaid for the purpose of
protecting Tenant's interest hereunder. Landlord shall not
enter into any agreement with respect to any such taking or
proceeding which may affect Tenant's rights under this
paragraph without Tenant's prior written consent.
(b) Notwithstanding the foregoing, if at any time
during the Term of this Lease title to the whole or
substantially all of the Demised Premises shall be taken by
the exercise of the right to condemnation or eminent domain,
such that the Demised Premises are not suitable or fit for
the use herein contemplated, or in the event the award for
such taking is less than the Purchase Price, Tenant may at,
Tenant's option cancel and terminate this Lease without
liability as of the date of such taking and the rent
provided to be paid by Tenant shall be apportioned and paid
to the date of such taking.
(c) In the event that title to less than the whole or
substantially all of the Demised Premises shall be taken as
aforesaid, this lease shall terminate only with respect to
the portion of the Demised Premises so taken. In such
event, this Lease shall continue with respect to the portion
of Demised Premises not so taken, provided that, to the
extent the Landlord receives any proceeds of such taking,
the annual rent reserved herein and the purchase price set
forth in Section 29 below shall be equitably reduced.
19. CURING TENANT'S DEFAULTS
Should Tenant fail to perform any of its obligations
imposed by the terms of this Lease promptly before the
accrual of any penalty as provided by law or by any mortgage
superior to the Lease, the Landlord may perform the same and
add any such sum or sums paid or expended in such
performance to any rent then due or thereafter falling due
with the same effect as if these sums shall be and are
additional rental. However, this does not grant Tenant any
license or privilege to allow the Demised Premises to be
without the insurance coverage and the failure to promptly
comply with such requirements shall entitle Landlord to
immediately obtain the necessary insurance, and the cost
thereof shall be additional rent and collectible as such.
20. ASSIGNMENT AND SUBLEASES. Tenant shall not assign
or sublet its interest under this Lease, except to a parent,
subsidiary or affiliate corporation of Tenant, without
Landlord's prior written consent, which consent shall not be
unreasonably withheld. In the event of any such
assignment, Tenant shall remain primarily liable for the
payment of all rent required to be paid hereunder and for
the performance of all terms, covenants and conditions
herein undertaken by Tenant. Without limitation, it is
agreed that Tenant shall have the right to mortgage or
otherwise encumber its Leasehold interest. Any such
assignment shall not be valid or binding upon Landlord until
Landlord shall have received an original Assignment and
Assumption Agreement executed by the Assignee wherein the
Assignee shall assume the obligations of Tenant under this
Lease for the benefit of Landlord or an original duplicate
sublease which shall be subject to the terms of this Lease.
21. MORTGAGING OF LEASEHOLD ESTATE. In the event that
Tenant shall mortgage its leasehold estate and the
mortgagees or holders of the indebtedness secured by the
leasehold mortgage or trust deed shall notify Landlord in
the manner hereinafter provided for the giving of notice, of
the execution of such mortgage or trust deed and name the
place for service of notice upon such mortgagee, or holder
of indebtedness, then in such event, Landlord hereby agrees
for the benefit of such mortgagees or holders of
indebtedness from time to time:
(a) That Landlord will give to any such mortgagee or
holder of indebtedness simultaneously with service on
Tenant, a duplicate of any and all notices or demands given
by Landlord to Tenant from time to time. Such notices shall
be given in the manner and be subject to the provisions of
the notice provisions of this Lease.
(b) That such mortgagee or holder of indebtedness
shall have the privilege of performing any of Tenant's
covenants hereunder or of curing any default of Tenant
hereunder or of exercising any election, option or privilege
conferred upon Tenant by the terms of this Lease.
(c) That Landlord shall not terminate this Lease or
Tenant's right of possession for any default of Tenant, if,
within the period of time within which Tenant might cure
said default under the provisions of this Lease, such
mortgagee or holder of indebtedness commences to eliminate
the cause of such default and proceeds therewith diligently
and with reasonable dispatch as provided.
(d) That, except for the rights to terminate contained
in this Lease, no right, privilege or option to cancel or
terminate this Lease, available to Tenant, shall be deemed
to have exercised effectively unless joined in by any such
mortgagee or holder of the indebtedness.
(e) That no liability for the payment of rental or the
performance of any of Tenant's covenants and agreements
hereunder shall attach to or be imposed upon any mortgagee,
trustee under any trust deed or holder of any indebtedness
secured by any mortgage or trust deed upon the leasehold
estate, unless such mortgagee, trustee, or holder of
indebtedness forecloses its interest and becomes the Tenant
hereunder.
22. DEFAULT PROVISIONS
A. Tenant's Default.
(a) If any one or more of the following events (herein
sometimes called "Events of Default") shall happen:
(1) if default shall be made in the due and punctual
payment of the rent reserved under this Lease when and as
the same shall become due and payable which default
continues for a period of ten (10) days after receipt of
written notice thereof from Landlord to Tenant; or
(2) if default shall be made by Tenant in the
performance of or compliance with any of the covenants,
agreements, terms or provisions contained in this Lease,
other than those referred to in the foregoing paragraph
(a)(1), and such default shall continue for a period of
thirty (30) days after written notice thereof from Landlord
to Tenant, except that in connection with a default not
curable with due diligence within thirty (30) days, the time
of Tenant within which to cure the same shall be extended
for such time as may be necessary to cure the same with all
due diligence, provided Tenant commences promptly and
proceeds diligently to cure the same and further provided
that such period of time shall not be so extended as to
subject Landlord to any criminal liability; or
(3) if Tenant shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent,
or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present
or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or
shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Demised
Premises or any interest of Tenant therein; or
(4) if within thirty (30) days after the commencement
of any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any
future federal bankruptcy act or any other present or future
applicable federal, state or other law, such proceeding
shall not have been dismissed;
(5) if the Demised Premises shall be abandoned by
Tenant; or
(6) if an Event of Default occurs under the Truckstop
Lease or the Truck Ex Lease;
then and in any such event Landlord at any time thereafter
during the continuance of such Events of Default, may give
written notice to Tenant that this Lease and the Term hereby
demised and all rights of Tenant under this Lease shall
expire and terminate, subject to prorations and continuing
obligations as herein provided.
(b) Upon any such expiration or termination of this
Lease, Tenant shall quit and peacefully surrender the
Demised Premises to Landlord, and Landlord, upon or at any
time after any such expiration or termination, may without
further notice, enter upon and re-enter the Demised Premises
and possess and repossess itself thereof, by summary
proceedings, ejectment or otherwise, and may dispossess
Tenant and remove Tenant and all other persons and property
from the Demised Premises and may have, hold and enjoy the
Demised Premises and the right to receive all rental income
of and from the same. Any improvements on the Demised
Premise, (except for Tenant's personal property and trade
fixtures), shall become the sole property of Landlord. Re-
entry and removal may be accomplished by summary dispossess
proceedings, by any suitable action or proceeding at law, by
force, or otherwise. Landlord shall be entitled to the
benefits of all provisions of law respecting the speedy
recovery of lands and tenements and may maintain proceedings
in forcible entry and detainer. Tenant waives any right to
the service of any notice of Landlord's intention to re-
enter provided pursuant to any present or future law.
Landlord shall not be liable in connection with any action
it takes pursuant to this paragraph. Notwithstanding any
termination; any expiration of Tenant's right, title and
interest pursuant to this Lease, or any re-entry,
repossession, dispossession, taking of possession or
removal, Tenant's liability under all of the provisions of
this Lease shall continue as herein provided.
(c) At any time or from time to time after such
expiration or termination, Landlord may relet the Demised
Premises or any part thereof, in the name of Landlord or
otherwise, for such term or terms (which may be greater or
less than the period which would otherwise have constituted
the balance of the Term of this Lease) and on such
conditions (which may include concessions or free rent) as
Landlord, in its uncontrolled discretion, may determine and
may collect and receive the rents therefor. Notwithstanding
the termination or expiration of Tenant's right, title and
interest under this Lease, entry, repossession,
dispossession or removal, Tenant shall be liable to Landlord
each month (and shall pay within ten days after a bill
therefor is submitted by Landlord) for the difference
between: (x) all rent and other amounts payable under the
Lease; expenses incurred by landlord in securing, protecting
and re-entering the Demised Premises and taking possession
thereof, in performing any of Tenant's obligations, in
maintaining and repairing the Demised Premises, whether for
re-letting or otherwise, and in re-letting the Demised
Premises; and (y) the net proceeds of any re-letting.
However, Landlord shall not be obligated to re-let the
Demised Premises.
(d) Landlord and Tenant, so far as permitted by law,
waive and will waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of said
premises, or any claim of injury or damage.
(e) No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of
this Lease or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant,
agreement, term or condition. No covenant, agreement, term
or condition of this Lease to be performed or complied with
by Tenant, and no breach thereof, shall be waived, altered
or modified except by a written instrument executed by
Landlord. No waiver of any breach shall affect or alter
this Lease, but each and every covenant, agreement, term and
condition of this Lease shall continue in full force and
effect with respect to any other then existing or subsequent
breach thereof.
(f) A charge equivalent to two percent (2%) per month
of the payment amount will be due for any rent not received
within ten (10) days of the due date (first day of the
month) as specified in this Lease.
(g) In addition to any other rights set forth above,
Landlord shall have the right to cure Tenant's failure to
perform any obligations set forth in the Lease, which
failure remains uncured beyond any applicable cure period.
Any amounts expended by Landlord shall be reimbursed to
Landlord by Tenant, with interest thereon from the date of
the bill at the rate of 5% above the prime or base rate of
First National Bank of Maryland, N.A. The failure of this
Lease to provide an explicit listing of all remedies shall
not limit either party's right to exercise any or all
remedies available at law or equity. The prevailing party
shall be responsible for all legal fees and expenses
incurred by the other in the event Landlord or Tenant
exercises one or more of the remedies set forth in this
Section 22.
B. Landlord's Default.
The parties acknowledge and agree that Tenant is
entering into this Lease with the expectation and upon the
condition that the Truck Ex Lease and Truckstop Lease will
be valid, binding and effective according to their
respective terms, so that Tenant will be able to use,
possess and enjoy the property and premises subject thereto
and the premises demised hereunder as a single economic
enterprise. Landlord acknowledges and agrees that the
landlords under the Truck Ex Lease and Truckstop Lease are
affiliated with and related to Landlord, that such leases
shall be construed consistently with terms and provisions
hereof, and that a default by the landlord under either such
lease shall be considered a default hereunder. In addition
to and not exclusive of any right or remedy conferred
pursuant to this Lease or at law or in equity, the parties
agree that Tenant may terminate this Lease and the Truck Ex
Lease and Truckstop Lease in the event of any material
breach or default by Landlord of this Lease, or any material
breach by the landlord under either the Truck Ex Lease or
Truckstop Lease, in either case in which such breach or
default remains uncured for a period of thirty (30) days
from the date of written notice to Landlord, except that in
connection with a default not curable with due diligence
within thirty (30) days, the time of Landlord within which
to cure the same shall be extended for such time as may be
necessary to cure the same with all due diligence, provided
Landlord commences promptly and proceeds diligently to cure
the same.
23. RIGHT OF SET-OFF. Landlord acknowledges that
Tenant is relying upon the covenants, representations and
warranties of the Landlord hereinbefore set forth and that
matters so represented and warranted are material ones.
Such covenants, representations, and warranties shall not be
affected or impaired by any investigation made by Tenant.
The breach or failure of any such covenants, representations
or warranties shall constitute a default by the Landlord
hereunder. Landlord agrees that if Landlord does not cure
any such default within thirty (30) days after receipt of
written notice from Tenant, (or if the default cannot be
cured within thirty (30) days, if Landlord within such
period commences such cure and thereafter be diligently
prosecuting such cure) Tenant shall have the right to deduct
its costs to cure said defaults from any rent reserved
hereunder or any other sum payable by Tenant to Landlord
pursuant to this Lease, (including any sums required to be
paid by Tenant in connection with the transactions described
in Section 29 below). These remedies are in addition to all
other remedies Tenant may have in law or equity.
Tenant agrees that if it is determined that Tenant has
improperly set-off hereunder, Tenant shall be liable to
Landlord for all resulting damages, including, but not
limited to interest on the improper set-off at the rate of
fifteen percent (15%) per annum. 24. SUCCESSORS AND
ASSIGNS. The covenants and agreements contained in this
Lease inure to the benefit of and are binding upon the
parties hereto, their permitted successors and assigns.
25. MEMORANDUM. This Lease shall not be filed for
public record by any party hereto, but at Tenant's election,
Landlord and Tenant shall execute and acknowledge a
memorandum or short form lease for recording setting forth
the parties, description of the Demised Premises, Term of
the Lease, options for extension of the Term, options to
purchase, if any, the easement and rights set forth in
Section 4 above, and any other provision hereof, the
inclusion of which shall be mutually agreed upon by Landlord
and Tenant. Tenant shall pay all costs and expenses of
recording such memorandum.
26. TENANT'S SIGNS. Tenant shall have the right to
erect and maintain its usual and customary signs on the
premises, provided the same shall conform in every way with
the rules and regulations of the building department having
jurisdiction and with any law or ordinance of the state,
county, and/or municipality.
27. CONTINUING OPERATION. Tenant covenants to conduct
its business so as to prevent the termination or suspension
by lapse of time, non-use or otherwise, of any of the
permits, licenses, rights, privileges (including without
limitation any specially permitted uses or non-conforming
zoning uses) in existence as of the date Tenant takes
possession of the Demised Premises.
28. TRADE FIXTURES, MACHINERY AND EQUIPMENT. Landlord
agrees that all trade fixtures, machinery, equipment,
furniture or other personal property installed on the
Demised Premises by Tenant, shall remain the property of
Tenant and may be removed by Tenant at any time and from
time to time during the term of this Lease without notice to
Landlord. The Tenant agrees to repair any damage to the
Demised Premises caused by the removal of Tenant's trade
fixtures, machinery and equipment.
29. OPTION TO PURCHASE:
A. Grant of Option. If Tenant is not then in default,
Landlord hereby grants to Tenant the exclusive right, at
Tenant's option, to purchase the Demised Premises, and the
personal property, furniture, fixtures, machinery, equipment
or other property subject to this Lease, at the end of the
primary term of this Lease, for the purchase price and upon
the terms and conditions hereinafter set forth.
B. Purchase Price: The purchase price for the Demised
Premises shall be the greater of (i) One Million Two Hundred
Thousand Dollars ($1,200,000.00) or (ii) ten (10) times the
average of the sum of the annual Basic Rent and the annual
Additional Rent for the immediately preceding three (3)
lease years.
C. Exercise. Should Tenant desire to exercise the
foregoing option, Tenant shall give Landlord notice of its
election at any time during the last year of the primary
term of this Lease; provided that Tenant shall not be deemed
to have waived or released such option to purchase unless
and until Landlord shall, not more than thirty (30) days
prior to the expiration of the primary term hereof, provide
written notice to Tenant of the terms hereof, and Tenant,
upon receipt of such notice, fails to exercise this option
on or before thirty (30) days from the date of such notice.
D. Transfer of Title. Transfer of title to the
Demised Premises and closing thereof shall proceed as set
forth in Section 30 below.
E. Continued Possession. Provided Tenant has
exercised the foregoing option to purchase the Demised
Premises, and is not otherwise in default of its obligations
under this lease, this Lease and Tenant's rights to use,
possess and enjoy the same shall continue upon all of its
terms and conditions, including payment of the rent reserved
herein, until transfer of the Demised Premises is
consummated as herein provided.
30. TITLE DOCUMENTS; ETC.
(a) In the event Tenant exercises its option to
purchase the Demised Premises pursuant to Section 29 above,
Landlord shall convey good, marketable and indefeasible
title in fee simple to said real estate by good and
sufficient special warranty deed, with release of dower,
homestead, curtesy, if any, and free from all liens,
encumbrances, easements and restrictions or other matters
affecting title, except for the Permitted Exceptions set
forth in Schedule D attached hereto, (which shall include,
but not be limited to, the Amended and Restated Declaration
set forth in Exhibit "C"), and except such other easements
or rights of way which may be recorded subsequent to the
date of this Lease with Tenant's prior written consent. The
personal property, furniture, fixtures, machinery, equipment
or other property subject to this Lease shall be conveyed to
Tenant "as is", without any express or implied warranty,
except for title thereto, by general warranty bill of sale.
(b) In the event Tenant exercises its option to
purchase the Demised Premises pursuant to Section 29 above,
closing of the transfer of title shall take place not later
than ninety (90) days after the expiration of the primary
term of this Lease, or at such other time as Tenant and
Landlord shall mutually agree. The closing shall take place
in Baltimore, Maryland, or at such other place as Tenant and
Landlord may mutually agree upon. If said thirtieth day
falls on a Saturday, Sunday or Holiday, then the closing
shall be the first business day immediately following.
(c) The risk of loss or damage to the Demised Premises
by fire or other casualty, or by taking eminent domain,
after exercise of this option by Tenant, until delivery of
the deed shall be assumed by Landlord, and upon the
happening of such event, Tenant shall have the election of
terminating this option or the contract resulting from the
exercise of this option, without further liability, in which
event any money paid by Tenant shall be returned, or if
completing the purchase and receiving the insurance monies,
collectible for such loss or damage, or the award for such
taking by eminent domain.
(d) The expenses of closing, including transfer and
sales taxes attributable to such sale and transfer, shall be
shared equally by Landlord and Tenant.
31. OPTION TO EXTEND.
Landlord does hereby grant to Tenant the right,
privilege, and option to extend this Lease for three (3)
successive periods of seven (7) years each, upon notice in
writing to Landlord of Tenant's election to exercise this
option, given at least six (6) months prior to the
expiration of the then current term hereof. Each such
renewal shall be upon all of the terms, covenants and
conditions hereof, except:
(a) annual rent for the first year of the first renewal
period (herein the "Renewal Rent"), shall be fixed at
an amount equal to one tenth of the purchase price
which would have been payable for the Demised Premises
under Section 29(b) had Tenant exercised its purchase
option. The amount so computed shall be deemed the
Basic Rent for the Demised Premises for the first year
of the first renewal period.
(b) No Additional Rent or Minimum Rent shall be due or
payable during any renewal period, provided that
Tenant's obligation to pay Additional Percentage Rent
shall be continued for so long as Tenant's agreement
remains in effect with Greyhound Bus Lines.
(c) Commencing on the first anniversary date of the
first day of the first renewal term, and on each
anniversary date of each lease year thereafter, the
Basic Rent shall be adjusted upon the percentage
increase in the Consumer Price Index for all Urban
Consumers (hereinafter called the "Index") from such
Index as of the first day of the immediately preceding
lease year. Notwithstanding the foregoing, in no event
shall the Basic Rent for any lease year during any
renewal term be increased by more than three percent
(3%). Pending the determination of the additional
amount, if any, to be paid by the Tenant, the Tenant
shall continue to pay the then current rent and when
the additional amount has been determined, the Tenant,
on the first day of the month immediately following the
furnishing by the Landlord to the Tenant of the
computation thereof, shall pay to the Landlord the
number of installments that shall have elapsed from the
commencement of the period in question up to and
including the first day of such month. If at the time
required for the determination of the additional rent
the Index is no longer published or issued, the parties
shall use such other index as is then generally
recognized and accepted for similar determinations of
purchasing power.
32. NOTICES. All notices to the parties shall be
addressed to them at the respective addresses contained
herein, or to such other address, of which either of them
shall notify the other in the manner herein stated for
giving notice. The notice must be given by telecopier and
either registered mail, return receipt requested, or by
certified mail, return receipt requested. If registered
mail is used, the service of the notice shall be deemed
complete upon the registration thereof with the postal
authorities, and if certified mail, return receipt requested
is used, the due mailing thereof shall be considered
completed service.
33. WAIVER. The failure of either of the parties to
insist in any one or more instance upon a strict performance
of any of the covenants of this Lease, or to exercise any
option herein contained, shall not be construed as a waiver
or relinquishment in the future of the performance of such
covenant, or the right to exercise such option, but the same
shall continue and remain in full force and effect.
34. ESTOPPEL CERTIFICATES. Each party agrees that
from time to time and upon not less than ten (10) days prior
written request from the other party to execute, acknowledge
and deliver to such other party a statement in writing
certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications that the
same is in full force and effect as modified and stating the
modifications), that such other party is not in default
hereunder and the dates to which the rent and other charges
have been paid in advance, if any, it being intended that
any such statement delivered pursuant to this Article may be
relied upon by prospective purchasers and assignees of the
each of the respective parties.
35. LANDLORD'S CONSENT. If at any time during the
term of this Lease or any renewal thereof, Landlord is
requested to give its consent and Landlord unreasonable
delays in granting its consent or determines to withhold
such consent, in addition to any other right Tenant may have
under this Lease, Tenant shall be entitled to commence an
equitable action to compel Landlord to give such consent.
Landlord shall be liable for any loss, liability, damage or
expense, including attorneys' fees that Tenant may suffer or
incur as a result of Landlord's unreasonable delay in
granting such consent or in the event a court subsequently
determines that such consent was unreasonably withheld, or
as a result of or in connection with Tenant's action to
compel Landlord to give its consent as herein provided.
36. SEVERABILITY. If any term or provision of this
Lease or the application thereof to any person or
circumstances shall, to any extend, be invalid or
unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or
circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby and
each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
37. REMEDIES CUMULATIVE. All the rights and remedies
herein provided by reason of a default of either of the
parties and all other rights and remedies allowed at law or
in equity, are hereby reserved to each of the parties as
distinct, separate and cumulative remedies, and no one of
them shall be deemed to be in exclusion of any of the
others.
38. SUPERIOR INSTRUMENTS. Except as provided herein,
this Lease is subject to each mortgage or deed of trust
listed as a "Permitted Exception" on Exhibit "D" hereto.
Without in any way modifying Tenant's rights or Landlord's
obligation under any other provision of this lease, if the
lien of any mortgage, deed of trust, security indenture or
lease is superior to this lease, (hereinafter collectively
called "Superior Instruments"), Landlord agrees to furnish
to Tenant, prior to the Commencement Date, a recordable
agreement, to be executed and acknowledged by Tenant and the
holder or lessor of each Superior Instrument (hereinafter
called "Holder"), which agreement shall have been executed
and acknowledged by Holder, providing as follows:
A. Holder hereby consents to and approves the Lease.
B. Holder agrees that so long as the Lease shall be
in full force and effect and Tenant is in full
compliance therewith:
(i) Tenant shall not be named or joined as a
party defendant or otherwise in any suit, action,
or proceeding for the enforcement or foreclosure
of such Superior Instrument;
(ii) The possession by Tenant of the premises
and Tenant's rights thereto shall not be
disturbed, affected, or impaired by, nor will the
Lease or the term thereof be terminated or
otherwise affected by any suit, action, or
proceeding upon or related to any such Superior
Instrument;
(iii) All condemnation awards and insurance
proceeds paid or payable with respect to the
Premises and received by Holder shall be applied
and paid in the manner set forth in the Lease.
C. Holder hereby acknowledges and agrees that all
fixtures and equipment of Tenant installed in or on the
Premises, regardless of the manner or mode of
attachment, shall be and remain the property of Tenant
and may be removed by Tenant any time in accordance
with the applicable provisions of the Lease. In no
event (including a default under the Lease or Mortgage)
shall Holder have any liens, rights, or claims in
Tenant's fixtures and equipment; whether or not all or
any part thereof shall be deemed fixtures; and Holder
expressly waives all rights of levy, distraint, or
execution with respect to such fixtures and equipment.
D. If Holder shall become the owner of the Premises
by reason of foreclosure of any Superior Instrument or
otherwise, or if the Premises shall be sold as a result
of any action or proceeding to foreclose a Superior
Instrument or by a deed given in lieu of foreclosure,
such purchaser shall take title to the Demised Premises
subject to this Lease, and all of its terms and
conditions set forth herein. Holder agrees that any
sale of the Demises Premises shall be expressly subject
to the terms of this Lease and the tenancy created
hereby, and further, that in the event of any such sale
or transfer this Lease shall continue in full force and
effect, subject to all of its terms and conditions,
(including the rights and obligations set forth in
Section 29 hereof), without necessity for executing any
new instrument or lease.
E. In the event Tenant exercises its option to
purchase the Demised Premises pursuant to Section 29 of
this Lease, Holder agrees to release all right, title
and interest in and to the Demised Premises, including
the lien created by such Superior instrument, upon
payment to Holder of the purchase price for the Demised
Premises as therein specified, (or an amount sufficient
to pay and discharge such Superior Instrument, if less
than the purchase price).
F. This Agreement shall bind and inure to the benefit
of and be enforceable by the parties hereto and their
respective heirs, personal representatives, successors,
and assigns.
G. This agreement contains the entire agreement
between parties and cannot be changed, modified,
waived, or canceled except by an agreement in writing
executed by the party against whom enforcement of such
modification, change, waiver, or cancellation is
sought.
H. This Agreement and the covenants herein contained
are intended to run with and bind all lands affected
thereby.
Notwithstanding the above, Landlord shall have the
right to refinance any debt secured by the Demised Premises,
and to subordinate Tenant's interest, subject to the terms
hereafter set forth, to the rights under each such mortgage
or deed of trust (collectively, "Mortgage" and the morgagee,
holder of the note or beneficiary thereof shall be the
"Mortgagee"), provided that in no event shall the principal
amount of such refinancing exceed the principal amount of
One Million Two Hundred Thousand Dollars, ($1,200,000). The
Tenant shall, promptly on its receipt of a written demand
therefor from Landlord or the Mortgagee under any Mortgage
becoming effective after the entry into this Lease by the
parties hereto, subordinate the Tenant's leasehold estate
hereunder in and to so much of the Demised Premises as is
covered by such Mortgage, to the lien, operation and effect
thereof, (and each renewal, modification, consolidation,
replacement, or extension thereof), by executing and
delivering to such Mortgagee such subordination agreement
and/or other instrument in recordable form to effect the
same as such Mortgagee may reasonably require, provided that
the Tenant shall be entitled to condition its entry into
such subordination agreement upon the receipt of a non-
disturbance and attornment agreement executed and delivered
by Mortgagee, in form suitable for recordation, containing
the provisions hereinabove set forth with respect to
Superior Instruments.
39. HOLDING OVER. Unless otherwise agreed, in the
event Tenant continues to occupy the Demised Premises after
the last day of the term or any extension or renewal hereof,
and the Landlord elects to accept rent thereafter, a tenancy
from month to month only shall be created and not for any
longer period. Rent shall otherwise accrue at a rate equal
to 150% of the monthly rent in effect as of the last day of
the term.
40. RIGHT OF FIRST REFUSAL. Provided Tenant is not
then in default, throughout the term and any extension of
this lease, Tenant shall have and Landlord hereby grants to
Tenant a right of first refusal, whereby in the event
Landlord receives a bona fide offer to purchase the Demised
Premises or to lease the same for a term which commences at
or after the Commencement Date, and Landlord desires to
accept the same, Tenant shall first have the right, upon
fifteen (15) days written notice from Landlord of the terms
and conditions of any such offer, to purchase or lease the
Demised Premises, as the case may be, for and upon the same
terms thereof. Should Tenant desire to purchase or lease
the premises upon such terms and conditions, Tenant shall
serve written notice of exercise of this right of first
refusal upon Landlord not later than fifteen (15) days after
receipt of notice of such bona fide offer from Landlord. In
the event Tenant fails to exercise such right of first
refusal within said thirty (30) day period as aforesaid,
said right shall automatically terminate and expire, and
Landlord shall be free to sell, assign, transfer or lease
the premises free from the restrictions hereof.
Notwithstanding the foregoing, Landlord agrees that any
sale, transfer, lease or assignment of the Demised Premises
shall be subject in all respects to this Lease, and all
terms, provisions, conditions and obligations set forth
herein. In the event of any such sale, Landlord shall
remain primarily liable for the performance of the
obligations and covenants on the part of Landlord to be
performed pursuant to this Lease.
41. MISCELLANEOUS.
a. Attornment. It is expressly understood and agreed
that Tenant does and hereby takes the premises free from and
superior to all leases, tenancies or possessory interests,
and that this lease shall be and hereby is contingent upon
the attornment by any such persons to Tenant as Sublandlord
thereof.
b. Venue. Tenant hereby waives any objection to
the venue of any action filed by Landlord against Tenant in
any state or federal court in the jurisdiction in which the
Building is located, and Tenant further waives any right,
claim or power, under the doctrine of forum non conveniens
or otherwise, to transfer any such action filed by Landlord
to any other court.
c. Corporate Authority. If Tenant is a
corporation, concurrently with the signing of this Lease,
Tenant shall furnish to Landlord certified copies of the
resolutions of its Board of Directors (or of the executive
committee of its Board of Directors) authorizing Tenant to
enter into this Lease; and it shall furnish to Landlord
evidence (reasonably satisfactory to Landlord and its
counsel) that Tenant is a duly organized corporation in good
standing under the laws of the jurisdiction of its
incorporation, is qualified to do business in good standing
in the jurisdiction in which the Building is located, has
the power and authority to enter into this Lease, and that
all corporate action requisite to authorize Tenant to enter
into this Lease has been duly taken.
d. Time of the Essence. Time is of the essence in
the performance of all obligations under this Lease.
e. Invalidity and Reduction of Charges. If any
provision of this Lease shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of
the remaining provisions shall not be affected thereby and
the remainder of this Lease shall not be affected by such
holding and shall be fully valid and enforceable. In the
event any late charge, interest rate or other payment
provided herein exceeds the maximum applicable charge
legally allowed, such late charge, interest rate or other
payment shall be reduced to the maximum legal charge, rate
or amount.
f. Captions. The captions in this Lease are for
convenience only and shall not affect the interpretation of
the provisions hereof.
g. No Partnership. This Lease is not intended to
create a partnership, joint venture or other agency
relationship between Landlord and Tenant in the conduct of
their respective businesses.
h. Counterparts. This Lease may be executed in
several counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and
the same instrument.
i. Authority. If either party is a corporation,
partnership or other legal entity, the individual who
executes and delivers this Lease on behalf of such party
represents and warrants that he or she is duly authorized to
do so.
j. No offer. The submission of an unsigned
counterpart of this Lease to Tenant shall not constitute an
offer or option to lease the Leased Premises. This shall
become effective and binding only upon the execution and
delivery by Landlord and Tenant.
k. Enforceability. Each party represents to the other
that this agreement, when fully executed by and between the
parties, shall be binding and enforceable on such party
according to its terms.
42. NO BROKER. The parties each represent and agree
that no act or agreement on the part of either has given or
will give rise to any valid claim against the other for a
brokerage commission, finder's fee or other like payment
with respect to the transactions contemplated by this
agreement, it being expressly agreed that each party shall
pay and discharge its own contractual liability with respect
thereto, and that neither shall not assume any such
liability incurred by the other.
43. ENTIRE AGREEMENT. This Lease contains the entire
agreement between the parties, and any agreement hereafter
made shall not operate to change, modify or discharge this
Lease in whole or in part unless such agreement is in
writing and signed by the Landlord and Tenant.
IN WITNESS WHEREOF, the parties have executed this
Lease as of the day any year first above written.
TRAVEL PLAZA I, INC., Landlord
BY: , President
TRAVEL PORTS OF AMERICA, INC.,
TENANT
By:
Title:
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
ATTACH MAP
EXHIBIT B
AMENDED AND RESTATED DECLARATION
EXHIBIT C
GREYHOUND AGREEMENT
SCHEDULE D
PERMITTED EXCEPTIONS