LEASE AGREEMENT
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This Lease Agreement ("Lease") is made and entered into as of April 12,
1995, between HARRY MUHLSCHLEGEL and KAREN MUHLSCHLEGEL ("Landlord"), and JEVIC
TRANSPORTATION, INC., a New Jersey corporation ("Tenant").
STATEMENT OF PURPOSE
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Landlord is the owner of certain real property located in Cabarrus County,
North Carolina, more particularly described on attached Exhibit A ("Premises").
Tenant wishes to lease the Premises from Landlord for use as trucking terminal
upon the terms and conditions set out in the following Agreement.
AGREEMENT
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1. RENT
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1.1 Tenant covenants and agrees to pay annually, in equal monthly
installments as the basic rent the sum of $261,420.00 payable in monthly
installments of $21,785.00 in advance on the first day of each and every
calendar month in lawful money of the United States of America at the offices of
the Landlord or as directed by Landlord. If the commencement date is a date
other than the first day of a calendar month, there shall be due and payable on
or before such date as basic rent for the remainder of such calendar month a sum
equal to that portion of the basic rent specified for the first full calendar
month, which the number of days from the commencement date to the end of the
calendar month during which the commencement date falls bears to the total
number of days in such month.
1.2 In addition to the basic rent provided for in 1.1, the Tenant
convenants and agrees to pay "additional rent" beginning on the first day of the
first renewal term and continuing thereafter for the remaining term of the Lease
including each subsequent renewal term, which "additional rent" shall be
ascertained and computed for such periods of time and in the manner defined in
paragraph 1.3 of this Agreement.
1.3 Landlord has obtained from Southern National Bank of North Carolina
("Lender") a first lien upon the premises as security for a loan in the original
principal amount of $2,147,500.00 ("Loan"). In the event that Landlord and
Lender shall agree to increase the interest rate on the loan from Lender, which
will result in an increase in the monthly payments under the Loan, the annual
rent and the monthly installment provided in paragraph 1.1 of this Agreement
shall increase to an amount equal to the total annual payments due under the
Loan and the monthly installment due under the Loan. Landlord hereby directs and
Tenant agrees to make all rent payments due under this Agreement directly to
Lender by delivering such payments on or before the due date to Lender at 200
South College Street, Charlotte, North Carolina, 28202, Attn: Senior Loan
Officer.
2. TERM. The term of this Lease shall be for a period of five (5) years
beginning April 12, 1995, and ending April 12, 2000.
3. NON-ASSIGNMENT OF LEASE
3.1 Without the previous written consent of Landlord, neither Tenant, nor
Tenant's legal representatives or successors in interest by operation of law or
otherwise, shall assign, mortgage or grant any security interest or lien upon
this Lease, or sublet the whole or any part of the Premises or permit the
Premises or any part of the Premises to be used or occupied by others. Any
consent by Landlord to any act of assignment or subletting shall be held to
apply only to the specific transaction thereby authorized. Such consent shall
not be construed as a waiver of the duty of Tenant, or the legal representatives
or assigns of Tenant, to obtain from Landlord consent to any other or subsequent
assignment or subletting, or as modifying or limiting the rights of Landlord
under the foregoing covenant by Tenant not to assign or sublet without such
consent. Any violation of any provision of this Lease, whether by act or
omission, by any assignee, subtenant or under-tenant or occupant, shall be
deemed a violation of such provision by Tenant, it being the intention and
meaning of the parties hereto that Tenant shall assume and be liable to Landlord
for any and all acts and omissions of any and all assignees, subtenants,
under-tenants and occupants. If this Lease be assigned, Landlord may and is
hereby empowered to collect rent from the assignee; if the Premises or any part
of the Premises be underlet or occupied by any person other than Tenant,
Landlord, in the event of Tenant's default, may, and is hereby empowered to,
collect rent from the under-tenant or occupant; in either of such events,
Landlord may apply the net amount received by it to the rent reserved in this
Agreement, and no such collection shall be deemed a waiver of the covenant in
this Agreement against assignment and underletting, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance of the covanants contained in this Agreement on the part of
Tenant.
The foregoing provisions shall include the assignment of this Lease, in
whole or in part, to any corporation into or with which Tenant may be merged or
consolidated or to any corporation which shall be an affiliate, subsidiary,
parent or successor of Tenant, or of a corporation into or with which Tenant may
be merged or consolidated, or to a partnership, the majority interest in which
shall be owned by stockholders of Tenant or of any such corporation.
For the purpose of this Article, a "subsidiary" or "affiliate" or a
"successor" of Tenant shall mean the following:
(a) An "affiliate" shall mean any corporation which, directly or
indirectly, controls or is controlled by or is under common control with Tenant.
For this purpose, "control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such corporation, whether through the ownership of voting securities or by
contract or otherwise.
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(b) A "subsidiary" shall mean any corporation not less than 50% of whose
outstanding stock shall, at the time, be owned directly or indirectly by Tenant.
(c) A "successor" of Tenant shall mean:
(i) A corporation in which or with which Tenant, its corporate
successors or assigns, is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of
corporations, provided that by operation of law or by effective provisions
contained in the instruments of merger or consolidation, the liabilities of
the corporations participating in such merger or consolidation are assumed
by the corporation surviving such merger or created by such consolidation,
or
(ii) A corporation acquiring this lease and the term hereby demised
and a substantial portion of the property and assets of Tenant, its
corporate successors or assigns, or
(iii) Any corporate successor or a successor corporation becoming such
by either of the methods described in (i) or (ii).
3.2 An assignment, within the meaning of this Article, shall be deemed to
include one or more sales or transfers, by operation of law or otherwise, or
creation of new stock, by which an aggregate of more than 50% of Tenant's stock
shall by vested in a party or parties who are nonstockholders as of the date
hereof.
4. QUIET - ENJOYMENT
Landlord covenants that Tenant in performing its obligations under this
Agreement shall peacefully and quietly hold and enjoy the Premises throughout
the term of this Lease and any extensions of this Lease.
5. USE
5.1 Lawful Use. The Premises shall be used and occupied for any lawful
purpose.
5.2 Compliance with Law. Tenant shall, at Tenant's expense, promptly comply
with all applicable statutes, ordinances, rules, regulations, orders and
requirements in effect during the term or any part of the term hereof,
regulating the use by Tenant of the Premises. Tenant shall not use or permit the
use of the Premises in any manner that will tend to create waste or a nuisance.
5.3 Condition of Premises. Tenant shall accept the Premises in their
condition existing as of the date of delivery of possession subject to all
matters unrecorded as well as of
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record and to all applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Premises, and
accepts this Lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto.
6. MAINTENANCE REPAIRS AND ALTERATIONS
6.1 Tenant's Obligations. Tenant shall during the term of this Lease keep
in good order, condition and repair, the Premises and every part to the
Premises, including, without limiting the generality of the foregoing, the
foundations under the Premises, exterior and interior walls and roof of the
Premises, and all plumbing, heating, air conditioning, ventilating, electrical
and lighting facilities and equipment within the Premises, and all fixtures,
ceilings, windows, doors, plate glass, showcases, skylights, entrances and
vestibules located with the Premises, and all adjacent sidewalks, landscaping,
driveways, parking lots, fences and signs located in the areas which are
included in the Premises. Landlord shall incur no expense nor have any
obligations of any kind whatsoever in connection with maintenance of the
Premises, and Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
6.2 Surrender. On the last day of the term hereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in the same
condition as when such improvements to the Premises were completed, broom clean,
ordinary wear and tear excepted. All alterations, improvements, repairs and
replacements made by Tenant during the term of this Lease shall be removed by
Tenant upon termination of this lease or at Landlord's option, shall remain with
the premises when surrendered by Tenant and be deemed a part of Landlord's
property, at no cost to Landlord. Where removal of any such item is required,
Tenant, at Tenant's expense, shall cause same to be removed and the premises
restored to a condition that is reasonably satisfactory to Landlord. Removal and
restoration shall be completed prior to the termination of this lease. In
default thereof, Landlord may effect said removal and repairs at Tenant's
expense or treat Tenant as a holdover Tenant until such removal and restoration
is completed to Landlord's reasonable satisfaction.
In addition to the foregoing, any personal property of Tenant remaining at
the premises upon termination of this lease (including without limitation
Tenant's trade fixtures) shall be deemed abandoned by Tenant, and Landlord, at
its option, may accept same as part of Landlord's property or cause the removal
of same at Tenant's expense without being liable to Tenant for conversion or any
claim for damages therefor.
6.3 Alterations and Additions. Tenant shall be responsible for all
construction costs incurred with regard to leasehold improvements to the
property, including, but not limited to, bulk excavation, storm drainage, stone
sub-base, paving, parking lines, fencing, landscaping, curbs, steps, and pads to
total $654,687.00. Tenant shall also be responsible for improvements regarding
the warehouse for building equipment, mechanicals, in-plant office, electrical
and all net change orders totaling $930,852.00. Tenant shall also be responsible
for prorata soft costs totaling $120,075.00. The total cost of all leasehold
improvements will be $1,705,614.00 as shown on attached Exhibit B.
Tenant shall also be responsible for any further improvements to the
property required for Tenant's use of the property during any term of the Lease,
except as expressly provided in this Agreement, Tenant shall not, without
Landlord's prior written consent, apply for or obtain any variance of the
present zoning of the Premises or make any alternations, improvements,
additions, utility installations in or about the Premises, except for
non-structural alterations not exceeding $5,000.00 in cost.
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7. INSURANCE: INDEMNITY
7.1 Liability Insurance. Tenant, at its sole expense, shall obtain and keep
in force during the term of this Lease a policy of comprehensive public
liability insurance insuring Landlord and Tenant against any liability arising
out of the ownership, use, occupancy or maintenance of the Premises. Such
insurance shall be in an amount of not less than $1,000,000.00 for injury to or
death of one person in any one accident or occurrence and in an amount of not
less than $1,000,000.00 for injury to or death of more than one person in any
one accident or occurrence. Such insurance shall further insure Landlord and
Tenant against liability for property damage of at least $1,000,000.00. If
Tenant shall fail to procure and maintain said insurance, Landlord may, but
shall not be required to, procure and maintain the same, but at the expense of
Tenant.
7.2 Casualty Insurance. Tenant, at its sole expense, shall obtain and keep
in force during the term of this Lease a policy or policies of insurance
covering loss or damage to the Premises in the amount of the full replacement
cost value of the Premises but not for any amount less than $1,400,000.00
against all perils included within the classification of fire, extended
coverage, vandalism and malicious mischief. The insurance policies provided for
in this section shall include an inflation guard endorsement and provide for
payment of loss under such policies to Landlord as additional insured and to
Landlord's permanent lender or lenders under a standard mortgage clause. If
Tenant shall fail to procure and maintain said insurance, Landlord may, but
shall not be required to, procure and maintain the same, but at the expense of
Tenant.
7.3 Insurance Policies. Insurance required under this Agreement shall be in
companies acceptable to Landlord, rated AAA or better in "Best's Insurance
Guide." Tenant shall deliver to Landlord policies of such insurance evidencing
the existence and amount of such insurance with loss payable clauses
satisfactory to Landlord. Any renewal policies shall be delivered to Landlord at
least fifteen (15) days prior to expiration of any other policy covering the
same insured risk. No such policy shall be cancellable or subject to reduction
of coverage or other modification except after thirty (30) days' prior written
notice to Landlord. Tenant shall, within fifteen (15) days prior to the
expiration of such policies, furnish Landlord with renewals of such policies, or
Landlord may order such insurance and charge the cost of such insurance to
Tenant, which amount shall be payable by Tenant upon demand. Tenant shall not do
or permit to be done anything which shall invalidate the insurance policies
referred to in this Agreement.
7.4 Property of Landlord. Except as otherwise provided for in this
Agreement, all insurance proceeds in the hands of Landlord or its permanent
lender or lenders at the time of termination of this Lease, and all insurance
proceeds thereafter received by Landlord or its permanent lender or lenders
under any policy of insurance required to be maintained under the
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terms of this Lease, shall be the sole and exclusive property of Landlord,
subject to the rights of the Landlord's permanent lender or lenders.
7.5 Indemnity. Tenant shall indemnify and hold harmless Landlord from and
against any and all claims arising from Tenant's use, possession, maintenance or
improvement of the Premises, or from the conduct of Tenant's business or from
any activity, work or things done, permitted or suffered by Tenant in or about
the Premises and shall further indemnify and hold harmless Landlord from and
against any and all claims arising from any breach or default in the performance
of any obligation on Tenant's part to be performed under the terms of this
Lease, or arising from any negligence of the Tenant, or any of Tenant's agents,
customers, contractors, employees, invitees, or any person in or about the
Premises, and from and against all costs, attorneys' fees, expenses and
liabilities insured in the defense of any such claim or any action or proceeding
brought thereon; and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord shall
defend the same at Tenant's expense. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to person in, upon or about the Premises arising from any cause and
Tenant hereby waives all claims in respect of any such damage or injury against
Landlord except for any claims arising from Landlord's negligence or willful
act.
7.6 Exemption of Landlord from Liability. Tenant hereby agrees that except
for any matter arising out of Landlord's negligence or willful act, Landlord
shall not be liable for injury to Tenant's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Tenant or any subtenant, or any subtenant's employees, contractors, invitees,
customers, or any other person in or about the Premises, nor shall Landlord be
liable for injury to the person of Tenant, Tenant's or any subtenant's
employees, customers, agents, contractors, invitees or any other person in or
about the Premises, whether such damage or injury is caused by or results from
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinkler, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether the said
damage or injury results from conditions arising upon the Premises, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant.
8. DAMAGE OR DESTRUCTION.
8.1 Damage - Insured. After any loss insured against pursuant to 6,
Landlord shall, as soon as Landlord has collected the amount of insurance
proceeds, commence repairing or rebuilding the damaged building and improvements
upon the Premises, unless the Landlord terminates this Lease as provided in
paragraph 7.3(a).
8.2 Damage - Uninsured. If at any time during the term hereof the Premises
are damaged and such damage was caused by a casualty not covered under an
insurance policy required to be maintained pursuant to paragraph 6, Landlord
shall, at Landlord's option, either
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(a) repair such damage as soon as reasonably possible at Landlord's expense,
except if such damage was caused by a negligent or willful act of Tenant, in
which event it shall be at Tenant's expense; this Lease shall continue in full
force and effect, or (b) give written notice to Tenant within thirty (30) days
after the date of the occurrence of such damage of Landlord's intention to
cancel and terminate this Lease as of the date of the occurrence of such damage.
In the event Landlord elects to give such notice of Landlord's intention to
cancel and terminate this Lease, Tenant shall have the right within fifteen (15)
days after the receipt of such notice to give written notice to Landlord of
Tenant's intention to repair such damage at Tenant's expense, without
reimbursement from Landlord, in which event this Lease shall continue in full
force and effect and Tenant shall proceed to make such repairs as soon as
reasonably possible. If Tenant does not give such notice within such 15-day
period, this Lease may, at Landlord's option, be cancelled and terminated as of
the date of the occurrence of such damage.
8.3 Termination; Abatement.
(a) Destruction. In the event the Premises are totally destroyed or the
Premises cannot be repaired as required in this Agreement under applicable laws
and regulations, notwithstanding the availability of insurance proceeds or
contributions from Tenant, this Lease may, at Landlord's option, be terminated
effective the date of the damage.
(b) Non-abatement of Rent. In the event of any destruction which is
repaired by Landlord, during the period between the date of damage and
completion of repairs,the rent payable by Tenant shall not be reduced.
9. RIGHT OF TENANT TO CANCEL
Notwithstanding anything anything in this Lease contained to the contrary,
in the event that (a) the entire Premises of more than twenty-five percent (25%)
of the building shall be taken by condemnation, or (b) the improvements on the
Premises are required to be removed or reconstructed by any governmental
authority, or (c) the use of the Premises is prohibited by law or ordinance or
other governmental authority, then the Tenant, if not then in default under this
Agreement, may at its option notify Landlord within thirty (30) days after
notice of such condemnation, taking, requirement or prohibition, that it elects
to cancel and terminate this Lease and all of its rights and obligations under
this Agreement,including all obligations, if any, arising from the event which
is the basis for such option to cancel. The effective date of cancellation shall
be the later of the date Tenant ceases to occupy the Premises or, as to (a), the
date the condemning authority takes possession of the premises; or as to (b),
the date in the order or decision by the governmental authority when the
premises must be removed or reconstructed; or as to (c), the effective date of
the law or ordinances. Upon such cancellation, Landlord shall be entitled to
receive the award damages (as provided in paragraph 13), any other remuneration,
and all the proceeds of insurance which have accrued or which may accrue from
such taking, requirement, prohibition or other casualty.
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10. REAL PROPERTY TAXES
10.1 Payment of Taxes. Landlord shall pay all real property taxes assessed
against the Premises. Real property taxes are defined in 9.2. All such payments
shall be made at least ten (10) days prior to the delinquency date of such
payment. If any such taxes payable by Tenant shall cover any period of time
prior to or after the expiration of the term hereof, Tenant's share of such
taxes shall be equitably prorated to cover only the period of time within the
tax fiscal year during which this Lease shall be in effect. Any taxes required
to be paid by Tenant under the terms of this Lease but which become payable to
the taxing authority after the expiration or earlier termination hereof shall be
paid to Landlord by Tenant at the expiration or earlier termination hereof.
Tenant's pro rata share will be based on the number of months during the
applicable tax period that the Lease was in effect. If Tenant shall fail to pay
Landlord within five (5) days of demand, such amount shall commence to bear
interest at the Penalty Rate.
10.2 Definition of "Real Property Tax". As used in this Agreement the term
"real property tax" shall include any form of tax assessment, license fee, levy,
penalty or tax (other than income, inheritance, or estate taxes) imposed by any
authority having the direct or indirect power to tax real property, including
any city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement districts of any city, county, state or
federal government, as against any legal or equitable interest of Landlord in
the Premises or in the real property of which the Premises are a part. Provided,
however, if any such tax or aassessment may be paid in installments over more
than one (1) year, Tenant may pay each such installment at least thirty (30)
days prior to the last day such installment may be paid prior to delinquency.
10.3 Right to Protest. So long as Tenant shall in good faith deem any such
tax covered by this paragraph to be excessive or illegal, Tenant shall have the
privilege, in the name of Landlord (at Tenant's cost and expense) with respect
to taxes covered by this paragraph of protesting, contesting, objecting to or
opposing the legality of validity of any such taxes to be paid by Tenant under
this paragraph, provided that notice of such protest, contest, objection or
position shall be given to Landlord by Tenant at least thirty (30) days before
any delinquency, and provided further that such protest, contest, objection or
opposition shall not be carried on or maintained after the delinquency date by
Tenant unless Tenant shall have paid the amount under protest or shall procure
and maintain a stay of all proceedings to enforce any collection of any such
amount under protest in such manner as may be required or permitted by law to
accomplish such stay. Landlord shall, without cost to it, cooperate with Tenant
in connection with any such proceedings. In the event of any such protest,
contest, objection or opposition, Tenant shall, within fifteen (15) days after
the final determination of any such protest, contest, objection or opposition
adversely to it, fully pay, satisfy, and discharge the amounts involved in or
affected by such protest, contest, objection or opposition, together with any
penalties, fines, interest, cost or expenses which may have accrued on any such
amounts. Landlord shall execute any and all documents needed, necessary or
convenient when required by Tenant in connection
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with any such protest, contest, objection or opposition or action based
thereon; provided, however, that any costs or expenses involved any such
protest, contest, objection or opposition or action based thereon shall be paid
by Tenant. Any rebates or refunds obtained by Tenant shall belong to and be the
property of Tenant.
10.4 Personal Property Taxes. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and other personal property of Tenant contained in the Premises or elsewhere.
When possible, Tenant shall cause said trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the
real property of Landlord.
11. UTILITIES
Tenant shall pay for all water, sewer, gas, heat, light, power, telephone
and other utilities and services supplied to the Premises, together with any
taxes thereon.
12. LANDLORD'S ACCESS
Landlord and Landlord's agents shall have the right to enter the Premises
at reasonable times for the purpose of inspecting the same or showing the same
to prospective purchasers or lenders. Landlord may enter the Premises to make
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part; however, such work shall not unreasonably
interfere with Tenant's use of the Premises during its normal working hours.
13. DEFAULTS; REMEDIES
13.1 Defaults. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
(a) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant under this Agreement, as and when due, where such
failure shall continue for a period of fifteen (15) days.
(b) The failure by Tenant to observe or perform any covenants, conditions
or provisions of this Lease to be observed or performed by Tenant, other than
described in (a) above, where such failure shall continue for a period of thirty
(30) days after it becomes known to Tenant by written notice of such failure
from Landlord to Tenant, provided, however, that if the nature of Tenant's
default is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant commenced such
cure within said thirty-day period and thereafter diligently prosecutes such
cure to completion.
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(c)(1)The making by Tenant of any general assignment or general arrangement
for the benefit of creditors; (ii) the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within ninety (90) days);
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within ninety
(90) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within ninety (90)
days.
13.2 Remedies. Landlord shall have, in addition to any other rights or
remedies, the right either to terminate this Lease or to continue this Lease in
full force and effect.
(a) This Lease shall not terminate unless Landlord notifies Tenant in
writing that this Lease and Tenant's right of possession under this Agreement
are terminated, or, unless Landlord institutes a judicial proceeding for the
primary purpose of terminating and which in fact results in a termination of
Tenant's right to possession of the Premises. In no event shall the following
actions by Landlord or its agents, either before or after any abandonment of the
Premises by Tenant constitute a termination of this Lease: (i) maintenance or
preservation of the Premises; (ii) efforts to relet the Premises; (iii)
appointment of a receiver in order to protect Landlord's interests under this
Agreement. If Landlord elects to terminate this Lease, Landlord thereupon shall,
without liability to Tenant, have the immediate right to re-enter the Premises,
remove all persons and property therefrom, and store any property so removed in
a public warehouse or elsewhere, at the cost of and for the account of Tenant.
Any reletting of the Premises by Landlord may be for such term (including a term
extending beyond the term of this Lease) at such rental or rentals and
containing such other provisions as Landlord, in its sole discretion, shall
determine.
(b) If Landlord terminates this Lease by reason of Tenant's breach, Tenant
shall pay to Landlord and be liable for:
(1) all rents and other charges due and unpaid at the time of
termination, together with interest thereon accrued from the date
each such sum became due at the Penalty Rate; and
(2) all rents and other charges which become due between the
time of termination and the time of award, less any rent other charges
that: (i) Landlord has actually received from reletting the Premises,
or (ii) Landlord could have obtained in reletting the Premises by
action reasonable in the circumstances then prevailing, together with
interest thereon accrued from the date each such sum became due at
the Penalty Rate; and
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(3) the difference, if any, between (a) all rents and other
charges for the balance of the term of this Lease, less (b) any rents
and other charges that Tenant proves: (i) Landlord will receive by
reason of the reletting of the Premises, or (ii) Landlord could
obtain in reletting the Premises by acting reasonable in the
circumstances then prevailing, which difference shall be discounted
to present value at the time of award at the discount rate of nine
percent (9%) in effect at the time of award plus one percent (1%);
and
(4) all costs, expenses and losses Landlord incurs by reason of
Tenant's breach of this Lease, including without limitation, the
following: (i) all expenses for repairing or restoring the Premises,
(ii) all brokers' fees, advertising costs and other expenses of
reletting the Premises, (iii) all expenses in retaking possession of
the Premises, and (iv) reasonable attorneys' fees and court costs.
(5) As used in subparagraph (b) hereof, the term "time of award"
shall mean the time of entry of a judgment of award against Tenant in
an action or proceeding arising out of Tenant's breach of this Lease.
(c) If, upon breach of this Lease by Tenant, Landlord elects to continue
this Lease in full force and effect, Landlord, in addition to exercising any
other rights or remedies, may enforce all of its rights and remedies under this
Agreement and Tenant shall remain obligated to perform all of Tenant's
obligations under this Agreement to be performed by Tenant, including without
limitation, timely payment of all rents and other charges. In addition, Tenant
shall be liable for reasonable attorneys' fees incurred by Landlord by reason of
Tenant's breach under this Agreement. Notwithstanding that Landlord elects,
after a breach of this Lease by Tenant, to continue this Lease in full force and
effect, Landlord may at any time thereafter elect to terminate this Lease for
such breach or any other breach. If Landlord so terminates, in addition to any
other rights or remedies of Landlord, Landlord shall have the rights and
remedies provided for in subparagraphs (a) and (b) above.
(d) The rights, privileges, elections and remedies of Landlord in this
Section 12 are cumulative and not alternative.
13.3 Default by Landlord. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within thirty (30) days after
written notice by Tenant to Landlord; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performances within such 30-day period and thereafter diligently prosecutes the
same to completion.
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14. CONDEMNATION
14.1 Right to Terminate. If the Premises or so much of the Premises that
the portion remaining is not suitable for the conduct of Tenant's business shall
be taken by condemnation, Tenant may cancel this Lease as provided in 8.
14.2 Rent Reduction. If Tenant does not terminate or if Tenant does not
have a right to terminate this Lease in accordance with the foregoing, this
Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the proportion that the
floor area taken bears to the total floor area of the building included in the
Premises. Land areas taken shall not cause a reduction in rent.
If this Lease is not so terminated, the condemnation proceeds shall be
applied (a) first in satisfaction and discharge of all assessments, if any, for
both principal and interest levied on the Premises or any part of the Premises
for benefits resulting from the improvements for which or in conjunction with
which the condemnation was effected; and (b) so much of the balance as is
necessary to pay the cost of restoration of injury to, or damage to, the
buildings or improvements located on the Premises resulting from the
condemnation.
14.3 Property of Landlord. Except as expressly provided in this Agreement
and after all of Tenant's obligations under this Agreement are terminated, any
award for the taking of all or any part of the Premises under the power of
eminent domain or any payment made under threat of the exercise of such power
shall be the property of Landlord, whether such award shall be made as
compensation for diminution in value of the leasehold or for the taking of the
fee, or as severance damages.
15. GENERAL PROVISIONS
15.1 Estoppel Certificate. Tenant or Landlord shall at any time upon not
less than thirty (30) days prior written notice from the other party execute,
acknowledge and deliver to the requesting party a statement in writing (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any; (b) acknowledging that there
are not, to the knowledge of the party making such statement, any uncured
defaults on the part of the requesting party under this Agreement, or specifying
such defaults if any are claimed; and (c) setting forth such other information
as may reasonably be desired by the requesting party. Any such statment may be
conclusively relied upon by any prospective subtenant of the Premises.
15.2 Landlord's Liability. The term "Landlord" as used in this Agreement
shall mean only the owner or owners at the time in question of the fee title or
a tenant's interest in a ground lease of the Premises, and providing Landlord is
not at that time in default of any of
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Landlord's obligations under this Agreement, in the event of any
transfer of such title or interest, Landlord named in this Agreement
(and in case of any subsequent transfers, the then grantor) shall be
relieved from and after the date of such transfer of all liability as
respects Landlord's obligations thereafter to be performed, provided
that any funds in the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest, shall be delivered to
the grantee. The obligations contained in this Lease to be performed by
Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns only during their respective periods of ownership.
15.3 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
15.4 Interest on Past-due Obligations. Except as expressly provided in this
Agreement, any amount due to Landlord not paid when due shall bear interest at
the Penalty Rate from the date due. Payment of such interest shall not excuse or
cure any default by Tenant under the Lease.
15.5 Time of Essence. Time is of the essence.
15.6 Captions. Article and paragraph's captions are not a part hereof.
15.7 Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned in this
Agreement. No prior agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification.
15.8 Notice. Any notice required or permitted to be given under this
Agreement shall be in writing and may be served by certified mail, postage
prepaid, return receipt requested, addressed to Landlord and Tenant respectively
at the addresses set forth above.
15.9 Waivers. No waiver by Landlord of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval of any act
shall not be deemed to render unneccesary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent under this
Agreement by Landlord shall not be a waiver of any preceding breach by Tenant of
any provision hereof, other than the failure of Tenant to pay the particular
rent so accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
15.10 Recording. Tenant shall not record this Lease without Landlord's
prior written consent. Either party shall, upon request of the other, execute,
acknowledge and deliver to the other a "short form" memorandum of this Lease for
recording.
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15.11 Holding Over. If Tenant remains in possession of the Premises or any
part of the Premises after the expiration of the term hereof without the express
written consent of Landlord, such occupancy shall be a tenancy from
month-to-month at a rental in the amount of the last monthly rental plus all
other charges payable under this Agreement, and upon all the terms hereof
applicable to a month-to-month tenancy.
15.12 Cumulative Remedies. No remedy or election under this Agreement shall
be deemed exclusively but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
15.13 Covenants and Conditions. Each provision of this Lease performable by
Tenant shall be deemed both a convenant and a condition.
15.14 Binding Effect; Choice of Law. This Lease shall bind the parties,
their successors and assigns. This Lease shall be governed by the laws of the
State of North Carolina.
15.15 Attorneys' Fees. If either party brings an action to enforce the
terms hereof or declare rights under this Agreement, the prevailing party in any
such action, trial or appeal, shall be entitled to these reasonable attorneys'
fees to be paid by the losing party as fixed by the court.
15.16 Merger. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation of this Lease, shall not work a merger, and shall, at the
option of Landlord, except as expressly provided in this Agreement to the
contrary, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
15.17 Option to Renew. Provided that Tenant is not in default of any term,
covenant or condition of this Lease, Tenant shall have the right and option to
renew this Lease by written notice delivered to Landlord not less than ninety
(90) days prior to the expiration of the previous term, for two (2) additional
terms defined as follows: (a) an initial renewal term of five (5) years, and (b)
one additional renewal term of five (5) years on the same terms and conditions
contained in this Agreement except as to rental and except Tenant shall have no
further renewal options.
15.18 Penalty Rate. The parties hereto do hereby agree that "Penalty Rate"
as used in this Lease is defined as two percent (2%) above the rate of interest
under the Loan in effect from time to time. For the purpose of computing the
"Penalty Rate" in this Agreement, changes in the prime rate shall be effective
on the date of each change.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first above written.
LANDLORD:
/s/ Harry Muhlschlegel
-----------------------
HARRY MUHLSCHLEGEL
/s/ Karen Muhlschlegel
-----------------------
KAREN MUHLSCHLEGEL
TENANT: JEVIC TRANSPORTATION, INC.
By: /s/ Brian J. Fitzpatrick
------------------------
S.V. President & CFO
ATTEST:
Karen Muhlschlegel
- ---------------------------
________ Secretary
[Corporate Seal]
15
NEW JERSEY
Burlington COUNTY
I, Joanne Murnane, a Notary Public of Burlington County certify that HARRY
MUHLSCHLEGEL personally came before me this day and acknowledged the due
execution of the foregoing instrument.
WITNESS my hand and notarial seal or stamp, the 12 day of April, 1995.
Joanne Murnane
---------------
Notary Public
My Commission Expires:
- ------------------------
JOANNE MURNANE
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES MAY 16, 1999
NEW JERSEY
Burlington COUNTY
I, Joanne Murnane, a Notary Public of Burlington County, certify that
KAREN MUHLSCHLEGEL personally came before me this day and acknowledged the due
execution of the foregoing instrument.
WITNESS my hand and notarial seal or stamp, this 12 day of April, 1995.
Joanne Murnane
------------------
Notary Public
My Commission Expires:
- ------------------------
JOANNE MURNANE
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES MAY 16, 1999
NEW JERSEY
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NEW JERSEY
Burlington COUNTY
I, Joanne Murnane, a Notary Public of Burlington County, certify that KAREN
MUHLSCHLEGEL personally came before me this day and acknowledged that (s)he is
_________ Secretary of JEVIC TRANSPORTATION, INC., a New Jersey corporation, and
that by authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its Sr. Vice President, sealed with its
corporate seal and attested by him/her as its ________________Secretary.
WITNESS my hand and notarial seal or stamp, this 12 day of April, 1995.
Joanne Murnane
---------------
Notary Public
My Commission Expires:
- ------------------------
JOANNE MURNANE
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES MAY 16, 1999
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EXHIBIT A
Description of Premises.
LOT #1, GOODMAN ROAD INDUSTRIAL PARK
Lying and being in Cabarrus County, North Carolina, No. 2 Township and
BEGINNING at a point marked by a #5 Iron Rebar, which point is N. 13-33-04
E. 715.68 feet from NCGS Monument "Tent" (N=605,467.07), E=1,493,754.63, NAD
27), and running thence N. 44-10-13 W. 507.64 feet to an existing iron; thence
N.24-52-34 E. 266.05 feet to a found Monument; thence N. 69-04-11 W. 50.00 feet
to a PK Nail set in the center of Goodman Road (SR #1441); thence with the
center line of said Goodman Road N. 25-14-24 E. 463.20 feet to an existing iron;
thence S. 40-57-30 E. 263.87 feet to an Ash Cluster; thence S. 74-12-58 E.
596.27 feet to an existing iron; thence S. 29-11-51 W.19.94 feet to a Monument;
thence N. 55-32-17 W. 4.64 feet to a Monument; thence S. 42-52-42 W. 611.58 feet
to a Monument; and thence S. 46-03-07 W. 314 feet to the point or place of
beginning, and consisting of 11.668 acres, more or less, as shown on Boundary
Survey of Lot #1, Goodman Road Industrial Park prepared for Harry J. and Karen
B. Muhlschlegel dated February 24, 1993, by Power Engineering Co., Inc., Kenneth
M. Green, RLS.
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EXHIBIT B
Cost of Leasehold Improvements
Item Dollar Amount
---- -------------
Site:
-----
Bulk Excavation $220,775.00
Storm Drainage $ 55,194.00
Stone Sub-Base $ 5,674.00
Paving $275,970.00
Parking Lines $ 1,021.00
Fencing $ 10,556.00
Landscaping $ 40,853.00
Curbs, Steps, Pads $ 44,644.00
===========
Sub-Total $654,687.00
Warehouse:
----------
Equipment $229,777.00
Mechanicals $172,155.00
In-Plant Office $192,840.00
Electrical $126,835.00
Changes Orders, Net $209,245.00
-----------
Sub-Total $930,852.00
Total Jevic Costs $1,585,539.00
Total Jevic Costs: $1,585,539.00
Total Project Costs less General Costs $2,349,936.50
Jevic Percent of Total 67.47%
Total General Conditions $ 177,964.00
Prorats General Conditions $ 120,075.10
-------------
Total Jevic Costs $1,705,614.10
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