AMENDED AND RESTATED LEASE AGREEMENT
This Amended and Restated Lease Agreement ("Lease") is made and executed
this __ day of September, 1997, by and between HARRY MUHLSCHLEGEL and KAREN
MUHLSCHLEGEL (together, "Landlord") and JEVIC TRANSPORTATION, INC. ("Tenant").
Background
Landlord and Tenant are parties to a certain Business Lease dated
December 23, 1993 ("Original Lease"), pursuant to which Landlord leased to
Tenant and Tenant leased from Landlord the premises herein described. Landlord
and Tenant are entering into this Lease to clarify and restated their respective
obligations as Landlord and Tenant and intend for this Lease to replace the
Original Lease in its entirety.
NOW, THEREFORE, in consideration of the mutual undertaking set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, Landlord and Tenant agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant accepts
from Landlord, under the terms and conditions set forth in this Lease, the real
property located at Ironside Court in Willingboro, New Jersey which is
designated on the current Willingboro tax map as Lots 8-12, 8-15, 8-16 and 8-17
in Block 13, together with all improvements thereon and all of Landlord's rights
thereto ("Premises").
2. CONDITION OF PREMISES. The Premises have been delivered by Landlord
to Tenant, and accepted by Tenant, in an "AS-IS" "WHERE IS" condition. Tenant
acknowledges that Landlord has no unperformed obligation to alter, improve,
decorate or otherwise prepare the Premises for Tenant's occupancy or which
remain unsatisfied under the Original Lease. Tenant further acknowledges that
neither Landlord nor any agents of Landlord have made any representations,
warranties or covenants, either express or implied, with respect to the Premises
or the condition thereof.
3. TERM. Tenant shall have and hold the Premises for the term ("Term")
hereafter provided. Landlord and Tenant acknowledge that the Term commenced on
January 1, 1994 ("Commencement Date") and shall end at 11:59 p.m. on December
31, 2013 ("Expiration Date").
4. RENT.
4.1 Base Rent. The annual base rent ("Base Rent") for the Premises shall
be $114,240. Tenant shall pay Base Rent in monthly installments of $9,520, in
advance, on the first day of each calendar month during the Term.
4.2 Additional Rent. In addition to Base Rent, Tenant shall pay all sums
of money or other charges required to be paid by Tenant under this Lease as
additional rent ("Additional Rent"), whether or not same are expressly
designated in this Lease as Additional
-1-
Rent. All Additional Rent shall be due and payable with each monthly
installment of Base Rent unless otherwise provided herein.
4.3 Manner of Payment. Base Rent and Additional Rent (together, "Rent")
payable under this Lease shall be paid in lawful money of the United States of
America without prior notice or demand therefor, and without deduction, defense,
counterclaim, setoff or abatement whatsoever. Rent shall be paid to Landlord at
the address designated by Landlord for notice or such other address as Landlord
may notify Tenant in accordance with the procedure for notice set forth in this
Lease.
4.4 Interest on Delinquent Payments. If any payment of Base Rent is not
paid in full within ten (10) business days after its due date or any payment of
Additional Rent is not paid in full when due , Tenant shall pay interest on such
delinquent payment, from the original due date of such delinquent payment until
paid in full, at an interest rate ("Interest Rate") equal to the lesser of (a)
one and one-half percent (1.5%) per month, or (b) the maximum rate permitted by
applicable law. This Section shall not relieve Tenant from its obligation to pay
Rent at the times and in the manners herein specified. Acceptance by Landlord of
interest shall not constitute a waiver of Tenant's default with respect to said
delinquent payment, nor prevent Landlord from exercising any other rights or
remedies available to Landlord. Interest at the Interest Rate also shall accrue
on any judgment obtained in connection with enforcement of this Lease.
5. NET LEASE - TAXES AND UTILITY CHARGES.
5.1 Net Lease. This Lease is a triple net lease between Landlord and
Tenant, and it is the intent of the parties that all costs of owning and
operating the Premises during the Term hereof shall be paid by Tenant as
Additional Rent hereunder, including without limitation the costs and expenses
expressly set forth in this Lease but excluding any payments now or hereafter
due on account of any indebtedness of Landlord secured by a mortgage on the
Premises.
5.2 Real Estate Taxes and Utilities Charges.
(a) Obligation. Without limiting the foregoing, the parties agree
that Tenant shall pay as Additional Rent all "Real Estate Taxes" and "Utility
Charges" defined as follows:
(1) For purposes herein, "Real Estate Taxes" shall consist of (A)
all real estate taxes relating to the Premises; (B) all charges which
may be levied in lieu of real estate taxes; (C) all assessments for municipal
improvements and other governmental charges of any kind and nature for public
improvements, services, benefits, or any other purpose; and (D) all assessments
against the Premises pursuant to any covenants, restrictions or easement
agreements affecting the Premises which become payable during the Term (or which
become payable after the expiration or earlier termination hereof and are
attributable in whole or in part to any period during the Term hereof), together
with all costs and expenses incurred by Landlord in good faith in contesting,
resisting, or appealing any such taxes or assessments, including,
-2-
without limitation, legal fees. Real Estate Taxes shall not include any interest
or penalties arising as a result of Landlord's late payment thereof.
(2) "Utility Charges" shall mean all electricity, water, sewer,
cable, telephone or other similar utility charges, and all excises,
taxes and fees with respect thereto, including without limitation license,
permit, inspection, authorization and similar fees of utility providers for
utility services rendered or furnished to the Premises during the Lease Term.
Utility Charges shall not include any interest or penalties arising as a result
of Landlord's late payment thereof.
(b) Payment. Tenant shall pay all Real Estate Taxes and Utility
Charges for the Premises within twenty (20) business days after Tenant's
receipt of Landlord's invoice therefor. Landlord's invoice shall be accompanied
by reasonable evidence documenting and supporting the amount of Real Estate
Taxes or Utility Charges for which such assessment of Additional Rent is being
made. Landlord agrees to make payment of Real Estate Taxes and Utility Charges
in a timely manner. Tenant's obligation hereunder for amounts falling due during
the Term of this Lease shall survive termination of this Lease.
(c) Direct Billing to Tenant. At Landlord's option, Landlord may
cause Real Estate Taxes and Utilities Charges, or portions thereof, to
be billed directly to Tenant. In such case, Tenant agrees to pay all of such
amounts promptly when due and shall be responsible for any interest or penalty
as a result of the delinquent payment thereof as well as any loss suffered by
Landlord as a result of such delinquency. Within ten (10) business days after
Landlord's request made from time to time at Landlord's discretion, Tenant shall
provide evidence reasonably satisfactory to Landlord (such as in the form of
receipts marked as paid) that all of such Real Estate Taxes and Utility Charges
separately billed to Tenant are current without delinquency.
5.3 Availability of Utilities and Services. Tenant acknowledges that
Landlord is not responsible to Tenant for any disruption or inadequacy of
utilities services during the Term except to the extent caused solely by the
gross negligence or wilful misconduct of Landlord, its employees or agents. In
this regard, Landlord does not warrant that any services supplied to the
Premises will not be interrupted. Services may be interrupted because of
accidents, repairs, alterations, improvements, or any reason beyond the
reasonable control of Landlord. Any such interruption shall not make Landlord
liable to Tenant for damages, nor constitute a constructive eviction or entitle
Tenant to a rent abatement unless same shall have been caused solely by the
gross negligence or wilful misconduct of Landlord, its employees or agents.
6. REPAIRS AND MAINTENANCE OF THE PREMISES.
6.1 Structural and System Repairs and Replacements. Tenant, at Tenant's
expense, shall perform all replacements and repairs necessary to maintain the
roof, load bearing walls and foundations of any building located on the Premises
during the Term of this Lease in good repair and proper working order
("Structural Work"). Unless an emergency exists in Tenant's reasonable
commercial judgment (in which case Tenant, without Landlord's prior consent, is
authorized to undertake such "temporary" corrective action as is necessary to
abate the
-3-
emergency until Landlord's consent to the "permanent" corrective action can be
obtained), Tenant will obtain Landlord's prior approval to the scope and
necessity of any Structural Work, the estimated cost thereof, and the contractor
to perform such Structural Work. Landlord's approval to the foregoing shall not
be unreasonably withheld, but Landlord may impose such conditions as part of its
consent as Landlord deems appropriate taking into consideration the nature of
the proposed Structural Work, including, without limitation, requiring Tenant to
furnish Landlord with security for the payment of all costs to be incurred in
connection with such work, insurance, and copies of the plans, specification,
permits and approval necessary therefor.
6.2 Tenant's General Obligations. In addition to Tenant's obligations
under subsections (a) above, Tenant, at Tenant's expense, shall perform all
repairs, maintenance and replacements necessary to maintain the Premises and
every part thereof in good repair and proper working condition. Without limiting
the foregoing, Tenant's obligations hereunder shall include repairs, maintenance
and replacements of windows, doors, overhead doors, floors, private roadways and
parking areas, electric and HVAC equipment and systems, waste disposal and
plumbing systems, and all other structural and mechanical elements and systems
serving the Premises. Tenant also shall perform responsible leaf, snow and ice
clearing and removal.
6.3 Clean Condition. Tenant, at Tenant's expense, shall keep the
Premises in a clean, sanitary, orderly and safe condition to the reasonable
satisfaction of Landlord and in accordance with any rules and regulations from
time to time in effect during the Term of this Lease. Tenant shall provide such
reasonable pest extermination measures as is necessary to maintain the Premises
free from insects, vermin and any other pests.
7. ALTERATIONS.
7.1 Consent Required. Except as hereafter provided or as required
pursuant to Section 6 above, Tenant shall make no alterations, additions or
improvements ("Tenant Alterations" or "Tenant Alteration") to the Premises
without the consent of Landlord, which consent shall not be unreasonably
withheld. At the time of Landlord's consent, Landlord shall designate whether
Tenant shall be required to remove the proposed Tenant Alteration upon
termination of this Lease, and if Landlord's written consent fails to state that
such Tenant Alteration is required to be removed, Landlord shall be deemed to
have agreed that Tenant shall not be obligated to remove such Tenant Alteration
upon the termination of this Lease. Landlord may impose such conditions as part
of its consent as Landlord deems appropriate taking into consideration the
nature of the proposed Tenant Alteration, including, without limitation,
requiring Tenant to furnish Landlord with security for the payment of all costs
to be incurred in connection with such work, insurance, and copies of the plans,
specifications, permits and approvals necessary therefor.
7.2 Permitted Tenant Alterations. Landlord's consent shall not be
required for Tenant Alterations ("Permitted Tenant Alterations") which: (i) do
not adversely impact the structural integrity of the Premises or the systems
serving the Premises or their operation, (ii) are not visible from the exterior
of the Premises and (iii) cost $5,000 or less in the aggregate to complete.
Unless, however, Landlord's prior written consent was obtained to a Permitted
Tenant Alteration, Landlord may require the removal of any Permitted Tenant
Alteration upon the
-4-
termination of this Lease. Notwithstanding the foregoing, with respect to
Permitted Tenant Alterations for which a building permit is required, no work
shall be performed until Tenant provides notice to Landlord that Tenant will be
undertaking such Permitted Tenant Alteration, which notice describes in
reasonable detail the scope of the Permitted Tenant Alteration. Tenant's
delivery to Landlord of a copy of Tenant's application for a building permit
shall be deemed to satisfy the foregoing description of the scope of the
Permitted Tenant Alteration.
7.3 Removal at Lease Termination. If removal of a Tenant Alteration
(including Permitted Tenant Alterations) is required at termination of this
Lease, Tenant shall promptly remove such Tenant Alterations and repair any
damage occasioned by such removal to Landlord's reasonable satisfaction. In
default thereof, Landlord may effect said removal and repairs at Tenant's
expense and treat Tenant as a holdover tenant until such removal and restoration
is completed. With respect to any Tenant Alterations which Tenant is not
obligated to remove hereunder, such Tenant Alterations, if not removed by Tenant
upon the termination of this Lease, shall be deemed abandoned by Tenant and
deemed a part of Landlord's property.
8. GENERAL CONSTRUCTION/MAINTENANCE PROCEDURES.
8.1 Quality of Performance. All undertakings under Sections 6, 7 and 10
hereof which are furnished by or upon the direction of Tenant ("Tenant's Work")
shall be performed in a good and workmanlike manner, using only materials of at
least the same quality and integrity as that being repaired, replaced or
altered, and performed and furnished in compliance with all applicable laws,
regulations, ordinances and requirements of all duly constituted authorities or
governmental bodies having jurisdiction over the Premises and of the
requirements of any board of underwriters having jurisdiction thereof.
8.2 Prior Plan Approval. With respect to Structural Work and Tenant
Alterations other than the Permitted Tenant Alterations, no work shall be
performed until the plans and specifications therefor have been approved by
Landlord, which approval shall not be unreasonably withheld. Where applicable
given the nature of the Tenant's Work, Tenant shall provide copies of as-built
plans and specifications for all Tenant's Work to Landlord within a reasonable
time of completion of the Tenant's Work.
8.3 Contractors. Any contractors employed by Tenant to construct or
perform Tenant's Work shall be approved by Landlord in writing, which approval
shall not be unreasonably withheld. Each contractor shall carry contractor's
liability insurance which covers Landlord as additional insured, covering bodily
injury in such amounts as may be customary and appropriate for the Tenant's Work
undertaken, as reasonably determined by Landlord. Tenant shall provide proof of
such insurance acceptable to Landlord prior to commencement of any Tenant's Work
on the Premises.
8.4 Mechanic's Liens. Prior to commencement of any Tenant's Work, Tenant
shall procure waivers of mechanics liens from all contractors and copies of said
waivers shall be delivered to Landlord prior to construction commencement.
Tenant shall promptly pay and discharge all claims for labor done or supplies
furnished.
-5-
8.5 Landlord's Approval and Review Reimbursement. By approving any
request for Tenant's Work (or any plans therefor), Landlord does not expressly
or implicitly covenant or warrant that the Tenant's Work or the plans and
specifications therefor are accurate, safe or sufficient, or that the same
comply with any applicable laws, ordinances, building codes, zoning requirements
and like regulations, nor shall Landlord's approval of any contractor be deemed
any endorsement of the qualifications of such contractor. Tenant shall be solely
responsible for determining the adequacy and sufficiency of the foregoing and
for obtaining all necessary permits and governmental approvals, including a
Certificate of Occupancy upon completion of the Tenant's Work, if and when
required by the municipality in which the Premises are located. Tenant shall
reimburse Landlord for Landlord's expenses incurred (including any engineering,
architectural or legal fees) in connection with reviewing any request for
consent to Tenant's Work.
9. SIGNS AND APPEARANCE OF PREMISES.
9.1 Signs. Subject to applicable zoning requirements, Tenant, at its
expense, may install and maintain one outside identification sign, which shall
be of an appearance and at a location that is mutually acceptable to Landlord
and Tenant. Tenant shall obtain at its expense all necessary permits or
governmental approvals for such sign.
9.2 Exterior. Tenant shall not place or cause to be placed on the
exterior of the Premises or upon the roof, or otherwise visible from the
exterior of the Premises, any sign, awning, canopy, marquee, advertising matter,
decoration, lettering, antennae, satellite dish or any other thing of any kind
without the prior written consent of Landlord.
10. USE AND COMPLIANCE WITH LAWS.
10.1 Permitted Use. Tenant shall use the Premises only as a truck
terminal and office space incidental thereto ("Permitted Use"). Tenant shall not
permit the Premises to be vacant nor shall Tenant permit the Premises to be used
for any illegal purpose or in any manner which would tend to damage any portion
thereof.
10.2 Insurance Risks. Tenant shall not conduct any activity or permit
any activity to be conducted or place any equipment in or about the Premises
which would in any way increase the rate of fire insurance or other insurance on
the Premises.
10.3 Compliance with Applicable Laws. Tenant shall comply with all
applicable laws, regulations, ordinances, and directives of the Federal
Government, state and municipality in which the Premises are located as well as
all judicial orders and the requirements of any Board of Fire Underwriters (or
any other body exercising similar functions) as are in effect during the Term of
this Lease, including without limitation, those relating to Hazardous Materials
(hereafter defined), those otherwise relating to occupational safety and health,
and the Americans With Disabilities Act of 1990, as amended from time to time,
and all regulations or judicial interpretations of the requirements thereof.
Tenant, at Tenant's sole expense, shall perform any act or obligation arising
from or as is necessary to achieve such compliance. At all times during this
Lease, Tenant shall maintain and comply with all permits, licenses or other
-6-
authorizations required by any governmental authority or agency for
Tenant's occupancy or operations at the Premises.
10.4 Notice of Violations. Tenant shall promptly notify Landlord of
violation of any applicable law which is alleged to have been committed at the
Premises and shall forward to Landlord copies of any written communications,
complaints, citations or other notices relating to the condition of the Premises
or compliance with applicable laws ("Action Notice"). Tenant promptly shall
respond to any Action Notice, cure any violation of applicable laws and have
dismissed any legal action commenced against Tenant or the Premises to the
satisfaction of Landlord. Prior to undertaking same, however, Tenant shall
propose to Landlord its intended course of action and proceed only with
Landlord's approval of same, which shall not be deemed to be Landlord's
guarantee that such action is appropriate nor impose any liability for same on
Landlord.
10.5 Landlord's Inquiries and Inspection. Tenant shall promptly and
accurately respond in writing to all inquiries made by Landlord (including
without limitation requests for documents) pertaining to Tenant's obligations
under this Lease or use of the Premises. Landlord and any authorized agent or
contractor hired by Landlord may enter the Premises at any time and from time to
time for purposes of inspecting same and conducting tests and sampling thereupon
as Landlord deems reasonably necessary to determine that Tenant is in compliance
with this Lease, but Landlord shall not be obligated to do so. Unless an
emergency exists, as determined by Landlord in its sole discretion, Landlord
shall notify Tenant at least one (1) day in advance of any such inspection or
testing and, to the extent practicable, shall conduct any such inspection or
testing in such manner so as to minimize unreasonable interference with Tenant's
operations. The costs of such investigation and inspection shall be paid by
Landlord unless it is determined that Tenant is in noncompliance with this
Lease, in which case such costs shall be paid solely by Tenant as Additional
Rent within ten (10) business days after Landlord's demand therefor.
10.6 Environmental Laws and Hazardous Materials. In amplification of
Tenant's obligations under Section 10.3 above and not in limitation thereof, the
following shall apply:
(a) Environmental Laws. Tenant shall comply with all applicable
environmental laws, orders, regulations, ordinances and directives now existing
or hereafter enacted, and all judicial interpretations thereof (collectively,
"Environmental Laws"), including without limitation the Industrial Site Recovery
Act, N.J.S.A. 13: IK-6 et seq. ("ISRA"). Tenant, at Tenant's expense, shall
perform any act or obligation arising from or as is necessary to achieve
compliance with the Environmental Laws, including, without limitation,
investigation of alleged or actual violations, performance of necessary testing
and sampling, provision of financial assurances or remediation funding sources,
and compliance with all directives of the governmental authority or agency
("Authority") have jurisdiction thereof. Tenant further agrees to cooperate with
Landlord as is necessary for Landlord to satisfy lenders or investors that the
Premises are in compliance with Environmental Laws, including without limitation
by providing ISRA Clearance (defined below).
-7-
(b) Hazardous Materials. Tenant shall not cause or permit any portion
of the Premises to be used for the production, storage, deposit or
disposal of Hazardous Materials, nor shall Tenant permit Hazardous Materials
ever to be placed or located upon the Premises except in such de minimis
quantities of the types commonly used in office and cleaning supplies, provided
that same are at all times used, kept and stored in full compliance with the
Environmental Laws. As used herein, "Hazardous Materials" means all substances
or pollutants which are declared to be or regulated as hazardous, toxic,
dangerous or polluting substances under the Environmental Laws at any time
during the Term of this Lease and shall include, without limitation, asbestos,
polychlorinated biphenyles (PCBs), urea formaldehyde, foam insulation, and
petroleum products and by-products.
(c) Liens. Tenant shall promptly notify Landlord of any actual or
threatened lien against the Premises of which Tenant becomes aware pursuant to
any of the Environmental Laws. Tenant, at Tenant's sole cost and expense, shall
promptly discharge and remove any lien arising from Tenant's violation of any of
the Environmental Laws, such action to be completed within thirty (30) days
after Tenant first receives notice of such lien or violation or such shorter
period of time if required (1) by the governmental agency enforcing the
correction of such violation, or (2) to prevent the holder of any such lien from
forcing the sale of the Premises.
(d) Tanks. Tenant shall not bury nor place any underground or above-
ground storage tanks at the Premises or the land on which same is located.
(e) Industrial Establishment. Tenant shall not permit all or any
portion of the Premises to be occupied or used by an "Industrial
Establishment" as defined under ISRA (defined below); provided, however, that if
the definition of "Industrial Establishment" is amended or reinterpreted after
the commencement of a permitted occupation or use in such a way that such
occupation or use falls within the new definition of "Industrial Establishment,"
Tenant shall be permitted to continue the occupation or use and shall not for
that reason be in breach of this Lease.
(f) ISRA at Lease Termination. In addition to Tenant's general
obligation to comply with ISRA, and irrespective of whether ISRA is applicable
to Tenant's use of the Premises, Tenant, at Tenant's expense, shall obtain in
connection with any termination of this Lease either: (A) a nonapplicability
letter; (B) a de minimis quantity exemption; (C) an unconditional approval of
Tenant's negative declaration; or (D) a no further action letter with respect to
Tenant's remediation work plan (collectively "ISRA Clearance") from the
Authority having jurisdiction over ISRA compliance. If Tenant fails to deliver
ISRA Clearance which is satisfactory to Landlord upon the termination of this
Lease, Landlord shall have the right, in addition to Landlord's remedies for
breach of this Section, to treat Tenant as a holdover tenant in possession of
the Premises in accordance with the terms of this Lease. If, however, Tenant has
timely and in good faith attempted to discharge its ISRA obligations prior to
the termination of this Lease and Tenant demonstrates to Landlord's reasonable
satisfaction that Tenant's failure to obtain an ISRA Clearance is due solely to
the failure of the Authority to respond to Tenant's submissions and/or the
failure of Landlord to make any submissions or provide any cooperation that is
necessary for Tenant to have obtained the ISRA Clearance, such failure shall not
constitute a breach of this Lease nor entitle Landlord to treat Tenant as a
holdover Tenant.
-8-
(g) Remedial Action. Should an Authority determine that remediation
be undertaken at the Premises because Hazardous Materials have been
Released (hereafter defined) in, on, under or about the Premises during the
Term, Tenant, at Tenant's expense, shall promptly prepare and submit a remedial
action work plan and establish a remediation funding source which are
satisfactory to the applicable Authority and diligently complete its obligations
thereunder. "Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching, or migration into
the indoor or outdoor environment, including the movement of any Hazardous
Materials through or in the air, soil, surface water, groundwater, at, on, in
under or from the Premises; the term "Released" shall have a corresponding
meaning. Landlord agrees to cooperate with Tenant as is necessary for Tenant to
obtain approval of such remedial action workplan, but Landlord shall not be
obligated to, and nothing in this Lease shall be construed to require Landlord
to, cooperate with or consent to: (1) any remediation or cleanup which does not
strictly comply with the applicable Authority's most stringent relevant criteria
for protection of human health, the environment or groundwater quality; (2) any
Declaration of Environmental Restrictions or any similar recorded notice or
institutional control, or any Classification Exception Area (as such terms are
defined in ISRA); or (3) any remediation or clean-up which involves the use of
engineering controls that allow contamination to remain at the Premises at
levels in excess of the applicable Authority's most stringent relevant criteria
for protection of human health, the environment or groundwater quality;
provided, however, that Tenant will not be obligated to remediate or clean-up
the Premises or its environs beyond the condition of the Premises or its
environs as they existed as of the commencement of this Lease.
(h) Sharing of Environmental Documents. Each party shall notify the
other in advance of all meetings scheduled with any Authority concerning
compliance of the Premises with ISRA and all other Environmental Laws, and the
other party, either directly or through representatives, shall have the right,
without the obligation, to attend and participate in all such meetings. The
parties shall make reasonable efforts to share Environmental Documents
(hereafter defined) to insure that any party trying to comply with ISRA and the
other Environmental Laws has all Environmental Documents reasonably available to
the other party. "Environmental Documents" means all environmental documentation
concerning the Premises or its environs, in the possession or under the control
of a party, including without limitation all preliminary assessment reports,
site investigation reports, remedial action plans or reports or the equivalent,
sampling results reports, data, diagrams, charts, maps, analyses, conclusions,
correspondence to or from the Authority, submissions to the Authority and
directives, orders, approvals and disapprovals issued by the Authority. Each
party shall deliver to the other party all Environmental Documents concerning
the Premises; provided, however, that nothing herein shall require the
disclosure of privileged information.
10.7 Indemnification. In amplification of Tenant's obligations under
Section 14 and not in limitation thereof, Tenant shall indemnify, defend (with
legal counsel selected by Landlord) and hold harmless Landlord from and against
any and all claims, legal or equitable, damages for personal injury (including
death) or harm to property (real or personal), liabilities, penalties, fines and
costs (including without limitation, investigation and remediation costs, sums
paid in private rights of action or in settlement of claims, legal fees,
consultant fees and expert fees) and damages in the nature of loss of use of the
Premises, or loss of a sale of the Premises,
-9-
arising out of or in any way connected to any condition caused or created by
Tenant's failure to comply with its obligations under this Section 10.
10.8 Survival. The provisions of this Section 10 shall survive the
scheduled expiration or earlier termination of this Lease, and, in addition to
performance of the obligations hereby required, Tenant shall continue to pay
rent, even though this Lease may have been terminated, until Tenant has
completed the performance of all of its obligations hereunder.
11. INSURANCE.
11.1 Tenant's Required Coverage.
(a) Type of Insurance. Tenant, at Tenant's sole cost and expense,
shall carry and maintain during the Term of this Lease the following
types of insurance, in the amounts and form hereinafter provided:
(1) All Risk Insurance. Loss or damage to the Premises by fire,
vandalism and malicious mischief, extended coverage perils commonly known as
"All Risk" and all physical loss perils, including but not limited to sprinkler
leakage, in an amount not less than one hundred percent (100%) of the then full
replacement cost thereof as reasonably determined by Landlord from time to time;
(2) Boiler Insurance. Loss or damage by explosion of steam
boilers, pressure vessels or similar apparatus, now or hereafter
installed in the Premises, in such limits with respect to any one accident as
reasonably determined by Landlord from time to time; and
(3) Public Liability and Premises Damage. Comprehensive
public liability insurance with a combined single limit of not less than one
million dollars ($1,000,000) (with inflation endorsement) per occurrence or such
larger amount as reasonably determined by Landlord from time to time, insuring
against any and all liability with respect to the Premises or arising out of
Tenant's maintenance, use or occupancy thereof.
(b) Tenant's Property and Improvements. Tenant acknowledges that
Landlord shall have no liability or responsibility whatsoever with respect to
any loss or damage however caused (including without limitation by fire or other
casualty, sprinkler leakage, theft or vandalism), to Tenant's personal property
located at the Premises and all personal property of others in Tenant's
possession. Tenant agrees to carry such casualty insurance with respect thereto
as is customarily carried by tenants of similar properties.
11.2 Policy Form. All policies of insurance required to be carried by
Tenant hereunder shall be issued by insurance companies with general
policyholders' rating of not less than A and a financial rating of AAA or better
as rated in the most current available "Best's Insurance Guide" and qualified to
do business in the state in which the Premises is located. All policies shall be
in form and content acceptable to Landlord and shall name Landlord and such
other persons or entities as Landlord specifies from time to time as additional
insureds. Each
-10-
policy shall provide (a) that Landlord, although named as additional
insured, shall nevertheless be entitled to recovery under said policy for any
loss occasioned by reason of the acts or negligence of Tenant or Tenant's
officers, employees or agents, and (b) the company writing said policy shall
give to Landlord written notice not less than thirty (30) days in advance of any
modification, cancellation or nonrenewal of such insurance coverage. All
policies shall be written as primary policies, not contributing with, and not in
excess of coverage which Landlord may carry.
11.3 No Separate Insurance. Tenant shall not, on Tenant's own initiative
or pursuant to the request or requirement of any third party, take out separate
insurance concurrent in form or contributing in the event of loss with the
insurance required in this Section 11 to be furnished by Tenant if the effect of
such insurance would invalidate or reduce the primary coverage which Tenant is
required by this Lease to maintain.
11.4 Failure to Maintain Insurance. Tenant shall pay all of the premiums
for insurance required hereunder. Certified copies of such insurance policies or
certificates thereof shall be delivered to Landlord prior to Tenant's possession
of the Premises, and thereafter no later than thirty (30) days prior to the
expiration of the term of such policy. As often as any such policy shall expire
or terminate, renewal or replacement policies shall be procured and maintained
by Tenant which satisfy the requirements of this Lease. Tenant shall permit
Landlord at all reasonable times to inspect the policies of insurance required
to be maintained by Tenant hereunder. If Tenant shall fail to deliver evidence
to Landlord that Tenant has in force the insurance required hereunder to be
maintained by Tenant within the time period provided herein and does not
thereafter deliver evidence of same to Landlord within twenty-four (24) hours of
Landlord's demand (verbal or written) therefor, Landlord may treat such failure
as an Event of Default and, in addition thereto, Landlord may obtain the
required insurance on Tenant's behalf (but shall not be obligated to do so). If
Landlord obtains the required coverage on behalf of Tenant, Tenant shall
reimburse the actual premium amounts paid by Landlord within ten (10) business
days after Landlord's written demand therefor.
11.5 Waiver of Subrogation.
(a) Tenant, for itself and any party claiming through or under
Tenant by way of subrogation or otherwise, hereby waives any claims
against Landlord, and Landlord's employees and agents, for loss or damage to
Premises covered by insurance maintained by Tenant or any party making its claim
through or under Tenant, even if such loss or damage shall have been caused by
the fault or negligence of Landlord or anyone for whom they may be responsible.
(b) Landlord, for itself and any party claiming through or under
Landlord by way of subrogation or otherwise, hereby waives any claim against
Tenant, and Tenant's employees and agents, for loss or damage to Premises
covered by insurance maintained by Landlord or any party making its claim
through or under Landlord, even if such loss or damage shall have been caused by
the fault or negligence of Tenant or anyone for whom Tenant may be responsible.
Such waiver shall not, however, be deemed to prevent Landlord from
-11-
declaring Tenant in default of this Lease if the action or omission giving rise
to the loss or damage also shall constitute a default under this Lease.
(c) The waivers made pursuant to this Section shall be effective,
however, only of and with respect to any loss or damage occurring during such
time as the insured party's policy or policies of insurance covering said loss
or damage shall contain a waiver of the insurer's right of subrogation and a
provision to the effect that such waiver shall not adversely affect or impair
said insurance or prejudice the right of the insured to recover thereunder
("Validation Provision"). Landlord and Tenant shall cause their respective
insurers to include in their respective policies a Validation Provision which
has the same effect as the foregoing. If the waivers created by this Section
shall be determined to contravene any law with respect to exculpatory agreements
and are thereby rendered unenforceable, the liability of the party in question
shall be deemed not released but shall be secondary to the other's insurer.
12. FIRE OR CASUALTY.
12.1 Insured Casualty.
(a) In case of damage to the Premises by a risk insured against
pursuant to Section 11 hereof, Landlord, unless it shall otherwise elect
as hereinafter provided, shall repair the Premises to substantially the
condition which existed prior to such damage, with reasonable dispatch after
receiving from Tenant written notice that damage has occurred, but without
obligation to do so until Landlord has received confirmation from the insurance
carrier and all mortgagees holding mortgages on the Premises that adequate
insurance proceeds will be available for repair or reconstruction. Landlord's
restoration, however, shall be of only those portions of the Premises which were
provided at Landlord's expense, and restoration of items within the Premises
which were not provided at Landlord's expense shall be Tenant's obligation.
(b) If damage to the Premises exceeds fifty percent (50%) of its fair
market value prior to such damage, as determined by a reputable fire adjuster or
contractor selected by Landlord or the obligated insurer ("Damage Estimate"),
then either party may terminate this Lease in the manner herein provided, in
which event all Rent shall abate and this Lease terminate as of the date said
damage occurred. Tenant shall notify Landlord in writing of its decision to
terminate this Lease within thirty (30) days after delivery of the Damage
Estimate to Tenant ("Tenant's Notice Period"). Tenant's failure to terminate
this Lease by written notice of termination delivered to Landlord within
Tenant's Notice Period shall be conclusively construed as Tenant's agreement for
this Lease to continue; subject, however, to Landlord's right to terminate this
Lease by written notice delivered to Tenant within thirty (30) days after the
expiration of Tenant's Notice Period. If neither party terminates this Lease,
then Landlord shall commence restoration, and Rent shall abate to the extent
described in Subsection (c) below.
(c) If the damages are such as to render the Premises or a portion
thereof uninhabitable, as reasonably determined by Landlord, Rent shall abate in
proportion to the portion of the Premises affected by such damage or of which
Tenant has been deprived use as a result of such damage or reconstruction, as
reasonably determined by Landlord. Such abatement shall commence as of the date
of such damage and end when restoration of the
-12-
Premises is substantially completed or Tenant's operations are totally or
partially resumed, whichever is earlier.
12.2 Uninsured Casualty. If damage or destruction of all or any portion
of the Premises is not fully covered by insurance proceeds received by Landlord,
Landlord shall have the right to terminate this Lease by written notice of
termination delivered to Tenant within thirty (30) days after Landlord has been
notified in writing that said damage or destruction is not covered by insurance.
In such case, this Lease shall terminate as of the date specified in Landlord's
notice to Tenant.
12.3 Mortgagee's Right. If the holder of any indebtedness secured by a
mortgage covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then Landlord shall have the right to terminate this Lease
by written notice of termination delivered to Tenant within thirty (30) days
after such requirement has been made in writing upon Landlord. In such case,
this Lease shall terminate as of the date specified in Landlord's notice to
Tenant.
12.4 Damage Near End of Term. Notwithstanding any provision of this
Lease to the contrary, Landlord shall not have any obligation whatsoever to
repair, reconstruct or restore the Premises when the damage or destruction
occurs during the last year of the Term of this Lease. In such event, Landlord
shall have the option to terminate this Lease in which case Rent shall abate as
of the date said damage occurred.
12.5 Tenant's Compensation/Liability. In no case shall Tenant be
compensated by Landlord for damages or loss in the use of the Premises or for
any inconvenience occasioned by such damage or restoration or for any theft,
vandalism, or malicious mischief suffered in or at the Premises. Notwithstanding
Section 11.5, if any damage is caused by the negligence or improper conduct of
Tenant or any of Tenant's employees, agents, contractors, licensees or invitees,
Tenant shall be responsible for all damages not covered by insurance, including
without limitation, any deductible paid by Landlord and Rent through the Term
hereof, even if this Lease shall have been terminated.
13. EMINENT DOMAIN.
13.1 Termination Rights. If through the exercise of the power of eminent
domain, all or such portion of the Premises is taken as, in the reasonable
determination of Landlord, substantially impairs Tenant's use of the Premises
("Substantial Taking"), then either party shall have the right to terminate this
Lease effective as of the date that possession is required to be surrendered to
said authority. Such termination right shall be exercised by written notice
delivered to the other party within thirty (30) days after delivery of
Landlord's notice to Tenant of a Substantial Taking. The failure of Tenant or
Landlord to deliver termination notice within the time limit set forth above
shall be conclusively construed as such party's agreement for this Lease to
continue.
13.2 Repair and Rent Adjustment. If a Substantial Taking is not deemed
to have occurred or if neither party terminates this Lease under subsection 13.1
above, Landlord
-13-
shall promptly restore the Premises to substantially the same condition prior to
such condemnation (less the portion thereof lost in such condemnation), but
without obligation to do so until Landlord receives the compensation awarded to
Landlord on account of such taking and confirmation from all holders of
mortgages on the Premises that the award shall be made available to Landlord for
restoration. If the compensation awarded to Landlord is inadequate to fully
cover the cost of necessary repairs or restorations, Landlord may terminate this
Lease. If this Lease is not terminated by Landlord, then Base Rent shall be
proportionately reduced by the portion of the Premises taken by the exercise of
eminent domain, as reasonably determined by Landlord. Such adjustment shall be
effective as of the date possession is required to be surrendered to the eminent
domain authority.
13.3 Condemnation Awards. Tenant shall not be entitled to receive any
part of any award or awards that may be made to or received by Landlord relating
to loss of the Premises or any part thereof, and Tenant hereby assigns to
Landlord any share of such award as may be granted to Tenant. Notwithstanding
the foregoing, Tenant, at its sole cost and expense, may pursue independent
proceedings against the authority exercising the power of eminent domain to
prove and establish any damage Tenant may have sustained relating to Tenant's
business and relocation expenses, provided any such compensation does not
diminish Landlord's award.
13.4 Mortgagee's Rights. If the holder of any indebtedness secured by a
mortgage covering the Premises requires that the condemnation award be applied
to such indebtedness, then Landlord shall have the right to terminate this Lease
by written notice of termination delivered to Tenant within thirty (30) days
after such requirement has been made in writing upon Landlord. In such case,
this Lease shall terminate as of the date specified in Landlord's notice to
Tenant.
14. NONLIABILITY AND INDEMNIFICATION OF LANDLORD.
14.1 Release. Tenant hereby agrees that Landlord shall not be liable to
Tenant and hereby releases Landlord for all liability to Tenant for injury to
any person (including bodily damage or death) or damage to any property
(including real or personal property), happening in any manner in, on or about
the Premises from any cause whatsoever, unless caused solely by the gross
negligence or willful misconduct of Landlord, but Landlord shall not be liable
to Tenant for any such damage or loss to the extent that Tenant is compensated
therefor by Tenant's insurance or would have been compensated therefor under
policies which Tenant is required to carry under this Lease. In no event,
however, shall Landlord be liable for consequential damages. Tenant agrees to
the foregoing and makes the foregoing release on behalf of Tenant and any party
claiming a right or interest through Tenant, including without limitation
Tenant's agents, contractors, subcontractors, employees, licensees, or invitees
(collectively, "Tenant's Agents").
14.2 Indemnification. Tenant shall indemnify, defend (with legal counsel
selected by Landlord), and hold harmless Landlord, and Landlord's employees and
agents, from and against liability whatsoever which may be imposed upon,
incurred by, or asserted against Landlord, or Landlord's employees or agents, by
reason of any of the following which shall occur during the Term of this Lease:
(a) use of the Premises by Tenant or Tenant's Agents; (b) any Tenant's Work done
in, on or about the Premises (including without limitation as a result of
-14-
defect in design, material or workmanship) made by, or at the direction of
Tenant or Tenant's Agents; (c) any accident, injury or damage to persons
(including bodily injury and death) or property (real or personal) occurring in,
or about the Premises, but not if caused solely by the gross negligence or
willful misconduct of Landlord, or Landlord's employees or agents; and (d) any
failure on the part of Tenant to perform or comply with any provision of this
Lease. Without limiting the generality of the foregoing, Tenant's obligations
hereunder shall include all damages, obligations, penalties, fines, liens,
claims, reasonable fees for legal counsel selected by Landlord, investigation
costs, remediation costs and all other reasonable costs and expenses incurred by
Landlord, or Landlord's employees or agents. Tenant shall not settle or
compromise any such liability for which indemnification is sought hereunder
without first obtaining Landlord's prior written consent, which Landlord may
withhold in its sole discretion.
14.3 Limitation on Landlord's Liability. The liability of Landlord to
Tenant or anyone claiming by or through Tenant shall be limited to Landlord's
interest in the Premises. The foregoing shall be absolute and without exception
whatsoever.
14.4 Survival. This Section 14 shall survive the termination of this
Lease with respect to any damage, injury, death or claim occurring before such
termination, irrespective of when such claim is presented.
15. ASSIGNMENT AND SUBLEASING.
15.1 General Provisions.
(a) Tenant shall not sell, assign, mortgage, pledge or otherwise
transfer this Lease or Tenant's interest in the Premises (or any part thereof)
nor shall Tenant sublease or permit occupancy of the Premises (or any part
thereof) by any party other than Tenant, without Landlord's prior written
consent which Landlord may withhold in its sole discretion. For purposes of this
Lease, any merger, consolidation, or sale or transfer of a controlling interest
in Tenant (being 51% or more, whether accomplished in a single transaction or in
a series of transactions) or a sale of substantially all of the assets of Tenant
shall be deemed an assignment of this Lease. All of the foregoing events
described in this Section shall be deemed to be a "Transfer," and any purported
Transfer undertaken without Landlord's consent shall be void at Landlord's
option and constitute an Event of Default hereunder.
(b) Each request for Landlord's consent shall be in writing and shall
identify in reasonable detail (1) the identity, business and financial condition
of the proposed subtenant or assignee, (2) the terms and conditions of the
proposed Transfer, and (3) the nature of the use of the Premises proposed by
such assignee or subtenant. Tenant shall deliver such further information as
Landlord may request to make its decision.
(c) If Landlord consents to any Transfer, Landlord shall be provided
with a written agreement which is acceptable in form and content to Landlord and
by which the transferee assumes all obligations of Tenant hereunder. No Transfer
shall relieve Tenant of any obligation under this Lease unless otherwise agreed
in writing signed by Landlord, and any purported Transfer undertaken without
Landlord's consent shall be void at Landlord's option and
-15-
constitute an Event of Default hereunder. Landlord's consent to any Transfer
shall not constitute a waiver of the necessity of such consent to any subsequent
Transfer.
(d) The prohibitions in this Lease against Transfers shall be
construed to include assignments by operation of law or by voluntary
assignment or for the benefit of creditors or which might otherwise be affected
or accomplished by bankruptcy, receivership, attachment, execution or other
judicial process or proceeding. If any such assignment shall be made or deemed
made by Tenant, then Landlord shall have the option to immediately terminate
this Lease by written notice to Tenant.
(e) Tenant shall pay all of Landlord's expenses (including reasonable
fees for legal counsel) incurred in connection with any request for Landlord's
consent to a Transfer.
16. DEFAULT OF TENANT.
16.1 Events of Default. In addition to Events of Default specified in
other sections of this Lease, the occurrence of any of the following shall be a
default by Tenant, and each shall constitute an "Event of Default" hereunder
without notice from Landlord unless expressly required herein:
(a) Tenant shall fail to pay Rent on its due date or shall fail to
make any other payment when required pursuant to this Lease (regardless
of whether or not any legal or formal demand has been made therefor);
(b) Tenant shall violate or fail to perform any of the terms,
conditions, covenants or agreements herein made by Tenant (other than those set
forth in subsections 16.l(a) and (c)-(g) inclusive or where expressly declared
to be an immediate default in other sections of this Lease) within thirty (30)
days after written notice thereof from Landlord;
(c) Tenant shall abandon or vacate any substantial portion of the
Premises, whether or not Tenant is in default of the payments of Rent hereunder,
and such abandonment or vacation shall continue for a period of five (5)
business days after written notice thereof to Tenant by Landlord, which may be
accomplished by sending notice to last known address of Tenant and posting
notice on the door of the Premises:
(d) Tenant shall be adjudicated a bankrupt or file a voluntary
petition in any bankruptcy or insolvency proceeding, or if any
involuntary petition in any bankruptcy or insolvency proceeding shall be filed
against Tenant and not discharged by Tenant within sixty (60) days from the date
of filing;
(e) Tenant shall make or consent to an assignment for the benefit of
creditors or a common law composition of creditors, without the prior written
consent of Landlord;
-16-
(f) A receiver or trustee shall be appointed for all or substantially
all of Tenant's assets; and/or
(g) Tenant shall make a transfer in fraud of creditors.
16.2 Remedies. Upon the occurrence of any Event of Default, Landlord
shall have the option to pursue any and all rights and remedies available herein
or at law or in equity, without any notice or demand whatsoever, including
without limitation: Upon the occurrence of any Event of Default, Landlord shall
have the following rights and remedies which shall be cumulative and are in
addition to any other remedies available by law or equity:
(a) Lease Termination. Landlord shall have the right to immediately
terminate this Lease and all rights of Tenant hereunder, in which event Tenant
shall immediately surrender the Premises to Landlord. If Tenant fails to do so,
Landlord may, without notice and without prejudice to any other remedy Landlord
may have, enter upon and take possession of the Premises and expel or remove
Tenant and its effects without being liable to prosecution or any claim for
damages therefor and Tenant shall indemnify Landlord for all loss and damages
which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises or otherwise, including loss of Rent for the
remainder of the Term and any exercised renewals.
(b) Rent Acceleration. Landlord shall have the right to declare Rent
for the unexpired portion of the Term (without regard to any early
termination of the Term by virtue of an Event of Default) immediately due and
payable. Rent so accelerated shall include Landlord's good faith estimate of all
amounts due as Additional Rent for the unexpired Term of this Lease which
Landlord may base on the highest monthly rate or amount in effect during the
twelve (12) months immediately preceding the Event of Default. Accelerated Rent
shall accrue interest at the Interest Rate from the date of Landlord's
acceleration until paid in full.
(c) Option to Rent. Landlord, with or without terminating this Lease,
shall have the right (but not the obligation) to relet the Premises or any part
thereof for such Rent and upon such terms as Landlord deems appropriate. Tenant
shall remain liable for any deficiency between the Rent collected by Landlord on
account of such reletting and the Rent due hereunder, along with all expenses
incurred by Landlord in connection with such reletting, including without
limitation, costs of cleaning, painting, repairing or refitting the Premises,
advertising, broker fees, municipal fees, and legal fees for preparation and
negotiation of the replacement lease. Landlord shall have the right to bring
suit for collection of such deficiency on a monthly basis or delay such
collection action until the expiration of the Term of this Lease, in which event
Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date originally scheduled for expiration of the Term of this
Lease. In no event, however, shall Tenant be entitled to any rent received by
Landlord in excess of amounts due hereunder.
(d) Dispossession. The provisions of this Section 16 shall
automatically operate as a notice to quit (any notice to quit, or of Landlord's
intention to re-enter,
-17-
being hereby expressly waived), and Landlord may proceed to recover possession
under and by virtue of the laws of the jurisdiction where the Premises are
located.
(e) Waiver of Redemption Rights. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future
law in the event this Lease is terminated or Tenant is evicted or dispossessed
following an Event of Default.
(f) Removal of Contents by Landlord. Landlord shall have the right,
with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises. All property removed by
Landlord may be stored in a public warehouse or elsewhere at the cost of and for
the account of Tenant, without service of notice or resort to legal process (all
of which Tenant expressly waives), and Landlord shall have no liability
whatsoever to Tenant therefor, including without limitation liability for
trespass or conversion.
16.3 No Waiver or Adverse Interpretation of Actions. No waiver by
Landlord of any breach of any covenant, condition or agreement herein contained
shall operate as a waiver of such covenant, condition, or agreement, or of any
subsequent breach thereof. No payment by Tenant or receipt by Landlord of a
lesser amount than the Rent herein stipulated shall be deemed to be other than
on account of Rent, nor shall any endorsement or statement on any check or
letter accompanying a check for payment of Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue any other
remedy provided in this Lease. Payment received by Landlord when Tenant is in
arrears shall be applied as Landlord determines. No re-entry, re- letting or
taking of possession of the Premises by Landlord, and no acceptance by Landlord
of keys from Tenant shall be considered Landlord's acceptance of a surrender of
this Lease nor Landlord's election to terminate this Lease unless written notice
signed by Landlord which expressly states such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction,
and Tenant's liability under this Lease shall continue until the Term would have
expired had such termination not occurred. No action shall be construed to
impose upon Landlord a duty to mitigate damages, and Landlord and Tenant agree
that Landlord has no duty to mitigate damages following Tenant's default.
16.4 Right of Landlord to Cure Tenant's Default. Whenever Tenant
defaults in the making of any payment required hereunder or in the doing of any
act herein required to be made or done by Tenant, then Landlord, without prior
notice to Tenant, may make such payment or do such act on Tenant's behalf but
shall not be required to do so. All costs incurred by Landlord to satisfy
Tenant's obligations, including without limitation payment of any penalty or
fine which may be imposed as a result of Tenant's failure or violation, shall be
paid by Tenant as Additional Rent within ten (10) business days after Landlord's
demand therefor. The making of such payment or the taking of such action by
Landlord shall not operate to cure or waive such default by Tenant nor prevent
Landlord from exercising any other remedy available to Landlord.
16.5 Collection Expenses. If Landlord consults an attorney or collection
agency for the collection of any sums due from Tenant or otherwise to enforce
Tenant's performance hereunder, Tenant, whether or not proceedings are
instituted, shall reimburse Landlord for the
-18-
reasonable fees for legal counsel, collection fees and court costs, if any,
incurred by Landlord within ten (10) business days after Landlord's demand
therefor.
17. SURRENDER AT LEASE TERMINATION. Upon the scheduled expiration or
earlier termination of this Lease, Tenant shall promptly surrender to Landlord
the Premises, together with all building apparatus, machinery, replacements to
mechanical and other systems serving the Premises, Tenant's Work performed
during the Term and any fixtures installed by Tenant other than Tenant's trade
fixtures, except for items which Landlord, in writing, may have permitted or
required Tenant to remove at the termination of this Lease. Tenant shall return
the Premises in substantially the same condition as the Premises were delivered
to Tenant at the commencement of this Lease, reasonable wear and tear accepted.
18. HOLDING OVER. If Tenant shall not immediately surrender the Premises
on the scheduled expiration or earlier termination of this Lease, then, in
addition to all remedies available to Landlord for Tenant's default, Tenant, as
a result of such holding over, shall become a tenant at will, at twice (2x) the
monthly installment of Base Rent due for the last month of the Term of this
Lease together with all Additional Rent due hereunder, and otherwise upon the
terms, conditions, covenants and agreements of this Lease. Tenant also shall be
liable to Landlord for all damages which Landlord suffers because of any holding
over by Tenant, and Tenant shall indemnify Landlord against all claims made by
any other tenant or prospective tenant against Landlord resulting from delay in
delivering or inability to deliver possession of the Premises to such other
tenant or prospective tenant.
19. SUBORDINATION, NONDISTURBANCE AND ATTORNMENT.
19.1 Estoppel Certificate. Within ten (10) business days after
Landlord's request, Tenant shall provide an estoppel certificate in recordable
form certifying (if such be the case) that this Lease is in full force and
effect and that there are no defenses or offsets thereto, or stating those
claimed by Tenant, along with such other information as Landlord reasonably may
request. Tenant's failure to deliver such statement within the time required
shall be conclusive evidence of Tenant's certification that this Lease is in
full force and effect, that there are no defenses or offsets thereto, and of
such other information as Landlord has reasonably requested.
19.2 Attornment. Tenant shall attorn to any mortgagee or purchaser of
the Premises.
19.3 Subordination. Tenant's rights hereunder are subordinate to the
lien of any mortgage or mortgages, or to the lien resulting from any other
method of financing or refinancing, or to any ground lease, now or hereafter in
force against the land of which the Premises are a part, to all advances made
upon the security thereof, and to all renewals, extensions or modifications
thereof. Regardless of the self-operating provision of this Section, if a
prospective mortgagee or ground lessee requests Tenant to sign a subordination
agreement, Tenant shall do so promptly.
19.4 Rights of Mortgagee. If any act or omission of Landlord hereunder
which would give Tenant the right to cancel or terminate this Lease, or to claim
a total or partial
-19-
eviction, Tenant shall not exercise such right (a) until it has given written
notice of such act or omission to the holder if each mortgage and ground lessee
whose name and address shall have been furnished previously to Tenant in
writing, and (b) until a reasonable period for remedying such default shall have
elapsed following the giving of such notice.
20. SUBDIVISION, EASEMENTS AND LICENSES. Tenant's use of the Premises
shall be subject to all covenants, conditions, easements and restrictions now or
hereafter affecting or encumbering the land on which same are located. Landlord
reserves the right to (a) subdivide the land on which the Premises are located,
(b) alter the boundaries of the land on which the Premises are located, (c)
grant easements on the land on which the Premises are located and dedicate for
public use portions thereof and (d) grant licenses creating rights to use the
rooftop of the Premises and utility lines serving the Premises; provided,
however, that no such action shall materially interfere with Tenant's Permitted
use of the Premises. Tenant hereby consents, and subordinates this Lease, to
such subdivision, boundary revision, and/or grant or dedication of easements and
agrees from time to time, at Landlord's request, to execute, acknowledge and
deliver to Landlord, in accordance with Landlord's instructions, all documents
or instruments necessary to effectuate Tenant's consent thereto.
21. LIMITED ATTORNEY-IN-FACT. If Tenant shall fail to execute any such
instruments or certificates to carry out the intent of Sections 19 or 20 within
ten (10) business days after Landlord's written request for Tenant to execute
such instruments or certificates, then Tenant hereby irrevocably appoints
Landlord as attorney-in-fact for Tenant with full power and authority to execute
and deliver in the name of Tenant any such instruments or certificates.
22. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Landlord covenants that
Tenant, and all those claiming through Tenant and permitted hereunder, shall
have quiet and peaceable enjoyment of the Premises by and through Landlord
provided Tenant, and all those claiming through Tenant and permitted hereunder,
are not in default of this Lease.
23. LANDLORD RIGHT OF ENTRY. Landlord shall have the right to place on
any portion of the Premises signs or billboards indicating that the Premises are
"For Sale" or "For Rent," but such signs shall be of such size and so placed as
not to materially interfere with Tenant's Permitted Use of the Premises. At all
times during this Lease, Landlord, and Landlord's agents, upon reasonable notice
to Tenant, shall be admitted to the Premises at reasonable hours of the day to
view the Premises, including without limitation, the right to show the Premises
to prospective purchasers, mortgagees, tenants or contractors.
24. RULES AND REGULATIONS. At all times during the Term, Tenant shall
comply with, and cause Tenant's Agents to comply with, all rules and regulations
set forth in Exhibit A attached hereto and made a part hereof, together with
such amendments and supplements thereto as Landlord may from time to time
reasonably adopt.
25. FINANCIAL STATEMENTS. Tenants shall, at the request of the Landlord,
furnish its current financial statements certified by Tenant's chief financial
officer and, if applicable, such annual or quarterly reports as Tenant may file
with the Securities and Exchange
-20-
Commission or any other government agency. Such financial statements shall be
prepared in accordance with generally accepted accounting principles.
26. CORPORATE AUTHORITY. Tenant represents that the person who executed
this Lease on Tenant's behalf has been duly authorized to enter into this Lease
and that the execution and consummation of this Lease by Tenant does not and
shall not violate any provision of any by-laws, certificate of incorporation, or
other agreement, order, judgment, governmental regulation or any other
obligations to which Tenant is a party or is subject.
27. CHANGE IN OWNERSHIP. If the Premises are sold, or in the event of
any change of legal title or equitable ownership thereof, all obligations and
rights of Landlord hereunder shall be transferred to such purchaser or
transferee, and Landlord's obligations shall terminate and Landlord shall be
released and relieved from all liability and responsibility to Tenant. Tenant
shall look solely to such purchaser or transferee for the performance of said
obligations or for the enforcement thereof. Each purchaser of assignee shall in
turn have like privileges of sale, assignment and release.
28. SUCCESSORS AND ASSIGNS. This Lease shall inure to the benefit of and
shall bind the parties hereto and their respective heirs, successors and
permitted assigns to the extent that such rights hereunder may succeed and be
assigned according to the terms hereof.
29. NOTICE. All notices, demands and communications required or permitted
by this Lease shall be effective only if in writing (unless otherwise provided
herein) and shall be sent by United States certified mail, return receipt
requested or overnight mail deposited with a nationally recognized carrier with
a receipt therefor, postage prepaid in each case and using the address for such
recipient designated below or such other address as either party may have
furnished to the other in accordance with this Section. Any notice so provided
shall be deemed to have been delivered upon the earlier of (a) actual receipt,
or (b) two (2) business days after mailing by certified mail, return receipt
requested, or (c) one (1) business day after depositing with a nationally
recognized carrier. Initial notice addresses for Landlord and Tenant are as
follows:
If to Landlord: Harry and Karen Muhlschlegel
4 Stag Leap Court
Tabernacle, NJ 08088
If to Tenant: Jevic Transportation, Inc.
___ Ironside Court
Willingboro, NJ 08080
30. SEVERABILITY. If any term, covenant, condition of provision of this
Lease, or the application thereof to any person or circumstance, shall to any
extent be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, covenants, conditions or provisions
of this Lease, or the application thereof to any person or circumstance, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
-21-
31. ENTIRE AGREEMENT AND GOVERNING LAW. This Lease is the entire agreement
of Landlord and Tenant and shall be governed and construed in accordance with
the laws of the state in which the Premises are located. This Lease shall not be
amended or supplemented unless by written agreement signed by Landlord and
Tenant.
32. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT EACH WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE
AND OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
IN WITNESS WHEREOF, and intending to be legally bound, Landlord and Tenant
have caused this Lease to be duly executed under seal, as of the day and year
first above written.
LANDLORD
- ---------------------- ---------------------------------
Date Harry Muhlschlegel
- ---------------------- ---------------------------------
Date Karen Muhlschlegel
TENANT
Jevic Transportation, Inc.
By:
- --------------------- -----------------------------
Date Print Name:
Title:
-22-
EXHIBIT A
RULES AND REGULATIONS
---------------------
Unless otherwise provided herein, capitalized terms shall have the definition
provided in the Lease.
1. The water, bathroom, and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein.
2. No animals of any kind (other than guide dogs for the visually impaired)
shall be brought into or kept about the Premises.
3. Tenant shall immediately notify Landlord of any serious breakage, fire or
disorder which comes to its attention in the Premises.
4. Tenant shall not re-key the Premises or add additional locks or security to
the Premises without the prior written consent of Landlord and provision to
Landlord of the new keys and security codes.