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CONSOLIDATED,
AMENDED AND RESTATED
MASTER LEASE
DATED AS OF
NOVEMBER 2, 2000
BETWEEN
GETTY PROPERTIES CORP., AS LANDLORD,
AND
GETTY PETROLEUM MARKETING INC., AS TENANT
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TABLE OF CONTENTS
<TABLE>
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PAGE
<S> <C>
1. DEFINITIONS..............................................................................................2
1.1 1998 Master Lease...............................................................................2
1.2 Abandoned Properties............................................................................2
1.3 Additional Rent.................................................................................2
1.4 Affiliate.......................................................................................2
1.5 April 1999 Master Lease.........................................................................2
1.6 Award...........................................................................................3
1.7 Bankruptcy Default..............................................................................3
1.8 Business Day....................................................................................3
1.9 Casualty........................................................................................3
1.10 Closure.........................................................................................3
1.11 Commencement Date...............................................................................4
1.12 Condemnation....................................................................................4
1.13 Construction Work...............................................................................4
1.14 Contamination...................................................................................4
1.15 County..........................................................................................4
1.16 CPI.............................................................................................4
1.17 CPI Adjustment Factor...........................................................................5
1.18 Default.........................................................................................5
1.19 Depository......................................................................................5
1.20 Distribution Agreement..........................................................................5
1.21 Environmental Agreement.........................................................................5
1.22 Environmental Law...............................................................................5
1.23 Equipment Liens.................................................................................6
1.24 Estoppel Certificate............................................................................6
1.25 Fee Estate......................................................................................6
1.26 Fee Mortgage....................................................................................6
1.27 Fixed Rent......................................................................................6
1.28 Fixed Rent Adjustment Procedures................................................................7
1.29 Fleet Mortgage..................................................................................7
1.30 GAAP............................................................................................7
1.31 Government......................................................................................7
1.32 Governmental Request............................................................................7
1.33 Hazardous Substances............................................................................7
1.34 Impositions.....................................................................................7
1.35 Improvements....................................................................................8
1.36 Indemnify.......................................................................................8
1.37 Indemnitee......................................................................................8
1.38 Indemnitor......................................................................................8
1.39 Institutional Lender............................................................................8
</TABLE>
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PAGE
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1.40 Insubstantial Condemnation......................................................................9
1.41 Knowledge.......................................................................................9
1.42 Landlord........................................................................................9
1.43 Landlord's Award................................................................................9
1.44 Law............................................................................................10
1.45 Lease Termination Damages......................................................................10
1.46 Lease Year.....................................................................................10
1.47 Leasehold Estate...............................................................................10
1.48 Leasehold Mortgagee............................................................................10
1.49 Legal Costs....................................................................................10
1.50 License Agreement..............................................................................11
1.51 Major Violation................................................................................11
1.52 Marketing Parent...............................................................................11
1.53 Material Monetary Default......................................................................11
1.54 Merger Agreement...............................................................................11
1.55 Mortgage.......................................................................................11
1.56 New Contamination..............................................................................11
1.57 Non-Material Monetary Default..................................................................11
1.58 Non-Monetary Default...........................................................................11
1.59 Notice.........................................................................................12
1.60 Pelham Manor Rezoning Event....................................................................12
1.61 Permitted Exception............................................................................12
1.62 Permitted Leasehold Mortgage...................................................................12
1.63 Permitted Leasehold Mortgagee..................................................................12
1.64 Person.........................................................................................12
1.65 Personal Property..............................................................................12
1.66 Personal Property Letter.......................................................................12
1.67 Petroleum Terminal Properties..................................................................13
1.68 Post-Reorganization Leases.....................................................................13
1.69 Power Test Lease...............................................................................13
1.70 Power Test Lease Estoppel Certificate..........................................................13
1.71 Power Test Lessor..............................................................................13
1.72 Premises.......................................................................................13
1.73 Prime Rate.....................................................................................13
1.74 Prohibited Liens...............................................................................14
1.75 Property.......................................................................................14
1.76 Real Estate Taxes..............................................................................14
1.77 Realty Parent..................................................................................15
1.78 Remediate......................................................................................15
1.79 Renewal Option.................................................................................15
1.80 Rent...........................................................................................15
1.81 Restatement Effective Date.....................................................................15
1.82 September 1999 Master Lease....................................................................15
1.83 Service Station Properties.....................................................................15
1.84 State..........................................................................................15
</TABLE>
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1.85 Sublease.......................................................................................15
1.86 Subsidiary.....................................................................................16
1.87 Substantial Casualty...........................................................................16
1.88 Substantial Condemnation.......................................................................16
1.89 Subtenant......................................................................................16
1.90 Temporary Condemnation.........................................................................16
1.91 Tenant.........................................................................................16
1.92 Tenant Improvements............................................................................16
1.93 Tenant's Award.................................................................................16
1.94 Tenant's Condemnation Share....................................................................17
1.95 Termination Date...............................................................................17
1.96 Third Party Lease..............................................................................17
1.97 Third Party Lease Estoppel Certificate.........................................................17
1.98 Third Party Lease Spread.......................................................................17
1.99 Third Party Lease Renewal Option...............................................................18
1.100 Third Party Lessor.............................................................................18
1.101 Trade Equipment................................................................................18
1.102 Transfer Tax Agreement.........................................................................18
1.103 Unavoidable Delay..............................................................................18
1.104 Uneconomic.....................................................................................18
1.105 Use Restriction Event..........................................................................18
1.106 UST............................................................................................19
1.107 UST Upgrade....................................................................................19
1.108 Waiver of Subrogation..........................................................................19
2. TERM....................................................................................................19
2.1 Initial Term and Renewal Term(s)...............................................................19
2.2 Default by Tenant..............................................................................20
2.3 Title to Tenant Improvements and Personal Property.............................................20
3. RENT....................................................................................................20
3.1 Fixed Rent.....................................................................................20
3.2 Payment; Proration; Etc........................................................................21
3.3 Additional Rent................................................................................21
3.4 No Allocation to Personal Property; Allocation to Royalty Fee..................................21
3.5 Offsets........................................................................................21
4. ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS..............................................................22
4.1 Landlord's Net Return..........................................................................22
4.2 Impositions....................................................................................22
4.3 Assessments in Installments....................................................................23
4.4 Deposits for Real Estate Taxes.................................................................23
4.5 Leasehold Mortgage Real Estate Tax Deposits....................................................25
4.6 Direct Payment by Landlord.....................................................................26
</TABLE>
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PAGE
<S> <C>
4.7 Tax Lots.......................................................................................26
4.8 Utilities......................................................................................26
5. USE.....................................................................................................26
6. COMPLIANCE WITH LAW.....................................................................................27
7. MAINTENANCE AND ALTERATIONS.............................................................................27
7.1 Obligation to Maintain.........................................................................27
7.2 Tenant's Right to Perform Alterations..........................................................27
7.3 Plans and Specifications.......................................................................28
7.4 Excavations....................................................................................28
7.5 Cooperation by Landlord........................................................................29
7.6 USTs...........................................................................................29
8. PROHIBITED LIENS........................................................................................29
8.1 Tenant's Covenant..............................................................................29
8.2 Protection of Landlord.........................................................................30
9. ENVIRONMENTAL MATTERS...................................................................................30
9.1 Landlord Remediation...........................................................................30
9.2 Tenant Obligations.............................................................................32
10. INDEMNIFICATION; LIABILITY OF LANDLORD..................................................................33
10.1 Mutual Indemnity Obligations...................................................................33
10.2 Liability of Landlord..........................................................................34
10.3 Indemnification Procedures.....................................................................34
10.4 Insurance Proceeds.............................................................................35
10.5 Survival.......................................................................................35
11. RIGHT OF CONTEST........................................................................................35
11.1 Tenant's Right.................................................................................35
11.2 Landlord's Obligations and Protections.........................................................35
11.3 Miscellaneous..................................................................................35
11.4 Cooperation....................................................................................36
12. INSURANCE...............................................................................................36
12.1 Tenant to Insure...............................................................................36
12.2 Nature of Insurance Program....................................................................37
12.3 Policy Requirements and Endorsements...........................................................37
12.4 Deliveries to Landlord.........................................................................38
12.5 Deductibles....................................................................................38
12.6 Tenant's Inability to Obtain Insurance.........................................................38
</TABLE>
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12.7 Waiver of Certain Claims.......................................................................39
12.8 No Representation of Adequate Coverage.........................................................39
13. DAMAGE OR DESTRUCTION...................................................................................39
13.1 Notice; No Rent Abatement......................................................................39
13.2 Adjustment of Claims; Use of Insurance Proceeds................................................39
13.3 Substantial Casualty; Insufficient Proceeds....................................................40
13.4 End of Term....................................................................................40
14. CONDEMNATION............................................................................................41
14.1 Substantial Condemnation.......................................................................41
14.2 Insubstantial Condemnation.....................................................................42
14.3 Temporary Condemnation.........................................................................44
14.4 Other Governmental Action......................................................................44
14.5 Prompt Notice; Settlement......................................................................44
14.6 Pelham Manor Rezoning Event....................................................................45
14.7 Use Restriction Event..........................................................................45
15. TRANSFERS BY LANDLORD...................................................................................45
15.1 Landlord's Right to Convey.....................................................................45
15.2 Tenant's Right of First Offer..................................................................46
15.3 Tenant's Right of First Refusal................................................................47
15.4 Landlord's Mortgages...........................................................................49
15.5 Termination of Purchase Option on Conveyance of Fee Estate.....................................49
15.6 Sale of Premises; Mergers......................................................................49
15.7 Zoning Lots....................................................................................50
16. TRANSFERS BY TENANT.....................................................................................50
16.1 Tenant's Limited Right.........................................................................50
16.2 Permitted Assignments..........................................................................50
16.3 Tenant's Right to Sublet.......................................................................50
16.4 Subleases with Single Purpose Entities.........................................................51
16.5 No Release.....................................................................................51
17. QUIET ENJOYMENT.........................................................................................52
18. DEFAULT BY TENANT; REMEDIES.............................................................................52
18.1 Definition of "Event of Default"...............................................................52
18.2 Remedies for Material Monetary Event of Defaults...............................................53
18.3 Remedies for Other Events of Default...........................................................54
18.4 Mitigation of Damages..........................................................................54
18.5 Tenant's Late Payments.........................................................................55
18.6 Landlord's Right to Cure.......................................................................55
</TABLE>
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18.7 Holding Over...................................................................................55
18.8 Waivers........................................................................................56
18.9 Accord and Satisfaction; Partial Payments by Tenant............................................56
18.10 Accord and Satisfaction; Partial Payments by Landlord..........................................56
18.11 Cross-Default..................................................................................56
19. TERMINATION.............................................................................................56
20. NOTICES.................................................................................................57
20.1 Generally......................................................................................57
20.2 Defaults Under Other Agreements................................................................58
21. NO BROKER...............................................................................................58
22. THIRD PARTY LEASES......................................................................................59
22.1 Subordination; Conflict........................................................................59
22.2 Renewal Options................................................................................60
22.3 Renewals.......................................................................................62
22.4 Power Test Lease...............................................................................62
22.5 Termination of Third Party Lease...............................................................62
23. WAIVERS.................................................................................................63
23.1 No Waiver by Silence...........................................................................63
23.2 No Landlord's Lien.............................................................................63
24. FURTHER ASSURANCES; ADDITIONAL DELIVERIES...............................................................63
24.1 Estoppel Certificates..........................................................................63
24.2 Equipment Liens................................................................................64
24.3 Further Assurances.............................................................................64
25. OBLIGATIONS UNDER ORIGINAL LEASE........................................................................64
25.1 Generally......................................................................................64
25.2 Violations of Law..............................................................................65
25.3 Violation of Environmental Law.................................................................68
25.4 No Actions.....................................................................................68
26. PERMITTED LEASEHOLD MORTGAGES; RIGHTS OF LEASEHOLD MORTGAGEE............................................68
26.1 Tenant's Right to Mortgage Lease...............................................................68
26.2 Rights of Leasehold Mortgagee..................................................................69
26.3 Noncurable Non-Monetary Default................................................................70
26.4 Delegation of Tenant's Rights..................................................................71
26.5 Assignment/Sale................................................................................71
</TABLE>
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26.6 Termination of Lease; New Lease to Mortgagee...................................................71
26.7 Landlord's Right to Payment....................................................................73
26.8 Rejection in Bankruptcy........................................................................73
26.9 Conflicts Among Leasehold Mortgagees...........................................................73
26.10 Limited Waiver.................................................................................73
27. PERMITTED EXCEPTIONS....................................................................................73
28. SINGLE LEASE............................................................................................73
29. REPORTING...............................................................................................74
29.1 Property-Level Reporting.......................................................................74
29.2 Tenant Reporting...............................................................................74
30. REPRESENTATIONS, WARRANTIES AND COVENANTS...............................................................75
30.1 Landlord's Representations, Warranties and Covenants...........................................75
30.2 Tenant's Representations And Warranties........................................................78
30.3 Survival.......................................................................................79
31. LANDLORD DEFAULT........................................................................................79
31.1 Landlord Default...............................................................................79
31.2 Dispute........................................................................................79
32. MISCELLANEOUS...........................................................................................80
32.1 Force Majeure..................................................................................80
32.2 Performance Under Protest......................................................................80
32.3 Legal Costs, Generally.........................................................................80
32.4 Access.........................................................................................80
32.5 Vault Space....................................................................................81
32.6 No Third Party Beneficiaries...................................................................81
32.7 Amendment; Amendment of Other Agreements.......................................................81
32.8 Partial Invalidity.............................................................................81
32.9 Successors and Assigns.........................................................................81
32.10 Recording......................................................................................81
32.11 Consequential Damages..........................................................................82
33. INTERPRETATION; EXECUTION AND APPLICATION OF RESTATED LEASE.............................................82
33.1 Governing Law..................................................................................82
33.2 Submission to Jurisdiction.....................................................................82
33.3 Agent for Service of Process...................................................................83
33.4 Counterparts...................................................................................83
33.5 Reasonableness.................................................................................83
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33.6 Interpretation.................................................................................84
33.7 Delivery of Drafts.............................................................................84
33.8 Captions.......................................................................................84
33.9 Restatement Effective Date; Outside Date.......................................................84
33.10 Restatement Effective Date; Estoppel Certificate; Representations..............................84
33.11 Entire Agreement; Other Agreements.............................................................85
</TABLE>
MASTER LEASE
ATTACHMENTS:
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit "A" Fee Properties Demised under Original Lease
Exhibit "B" Third Party Lease and Power Test Lease Locations Demised under the 1997 Master Lease
Exhibit "C" Properties with Inactive USTs
Exhibit "D" Intentionally Omitted
Exhibit "E" Intentionally Omitted
Exhibit "F" Expedited Arbitration Rules
Exhibit "G" Power Test Leases
Exhibit "H" Third Party Leases
Exhibit "I" Landlord's Fee Mortgages
Exhibit "J" Petroleum Terminal Properties
Exhibit "K" Form of SNDA for Existing Fee Mortgages
Exhibit "L" Pending Condemnations
Exhibit "M" Power Test Lessor's Fee Mortgages
SCHEDULES
Schedule 1 Abandoned Properties
Schedule 2 Properties with Non-Complying USTs
Schedule 3 Properties with Ongoing Remediations
Schedule 4 Fixed Rent Adjustment Procedures
Schedule 5 Landlord's Certificate of Occupancy and GSS Zoning Obligations
Schedule 6 Material Violations of Law
Schedule 7 Intentionally Omitted
Schedule 8 Certain Permitted Leasehold Mortgagees
Schedule 9 Intentionally Omitted
Schedule 10 Real Estate Taxes for Twelve Calendar Months Immediately Preceding Restatement
Effective Date
Schedule 11 Form of Landlord's Equipment Lien Waiver
Schedule 12 Form of Lease Modification Agreement for Power Test Leases
Schedule 13 Transferee Lease - Provisions of Restated Lease Not to be Included in Transferee
Lease
Schedule 14 Pending Actions and Proceedings
Schedule 15 Recently Exercised Third Party Lease Renewals
</TABLE>
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INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
1
<S> <C>
1997 Master Lease...................................1
1998 Master Lease...................................2
A
Abandoned Properties................................2
Additional Rent.....................................2
Affiliate...........................................2
Agent..............................................91
Annual Damage Amount...............................12
April 1999 Master Lease.............................3
Award...............................................3
B
Bankruptcy Default..................................3
Business Day........................................3
C
Casualty............................................3
Certifying Party...................................71
Closure.............................................3
Commencement Date...................................4
Condemnation........................................4
Construction Work...................................5
Contamination.......................................5
Contest............................................41
County..............................................5
CPI.................................................5
CPI Adjustment Factor...............................5
D
Default.............................................5
Deletion Request...................................74
Depository..........................................6
Distribution Agreement..............................6
E
Environmental Agreement.............................6
Environmental Consultant...........................36
Environmental Law...................................6
Equipment Liens.....................................6
Estoppel Certificate................................7
Event of Default...................................59
F
Fee Estate..........................................7
Fee Mortgage........................................7
First Renewal Term.................................24
Fixed Rent......................................8, 25
Fixed Rent Adjustment Procedures....................8
Fleet Mortgage......................................8
G
GAAP................................................8
Gap Period.........................................89
Government..........................................8
Governmental Request................................8
H
Hazardous Substances................................8
I
Impositions.........................................9
Improvements........................................9
Indemnify...........................................9
Indemnitee.........................................10
Indemnitor.........................................10
Initial Term.......................................23
Institutional Lender...............................10
Insubstantial Condemnation.........................10
K
knowledge..........................................10
L
Land................................................1
Landlord........................................1, 11
</TABLE>
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<TABLE>
<CAPTION>
L
<S> <C>
Landlord's Award...................................11
Landlord's Offer...................................52
Landlord's Organizational Documents................83
Law................................................11
Lease Box Breach...................................84
Lease Box Certificate..............................84
Lease Termination Damages..........................12
Lease Year.........................................12
Leasehold Estate...................................12
Leasehold Mortgagee................................12
Legal Costs........................................12
License Agreement..................................13
Lukoil USA.........................................91
M
Major Violation....................................13
Marketing Parent...................................13
Material Monetary Default..........................13
Material Monetary Event of Default.................59
Maximum Renewal Term Rent Allocation...............68
Merger Agreement...................................13
Monthly Tax Payment................................28
Mortgage...........................................13
N
New Contamination..................................13
Non-Material Monetary Default......................14
Non-Material Monetary Event of Default.............59
Non-Monetary Default...............................14
Non-Monetary Event of Default......................60
Notice.............................................14
O
Original Lease......................................1
Original Term Rent Allocation......................68
P
Pelham Manor Rezoning Event........................14
Permitted Exception................................14
Permitted Leasehold Mortgage.......................14
Permitted Leasehold Mortgagee......................15
Person.............................................15
Personal Property..................................15
Personal Property Letter...........................15
Petroleum Terminal Properties......................15
Post-Reorganization Leases.........................15
Power Test Lease...................................16
Power Test Lease Estoppel Certificate..............16
Power Test Lessor..................................16
Preexisting Environmental Violation................75
Preexisting Violation..............................72
Premises........................................1, 16
Prime Rate.........................................16
Prohibited Lien....................................17
Properties.........................................17
Property........................................1, 17
R
Real Estate Taxes..................................17
Realty Parent......................................18
Remediate..........................................18
Renewal Option.................................18, 23
Renewal Term.......................................24
Renewal Term Rent Allocation.......................68
Rent...............................................18
Requesting Party...................................71
Restated Lease......................................1
Restatement Effective Date.........................18
Right of First Offer...............................52
Right of First Refusal.............................54
ROFR Property......................................53
Royalty Fee........................................26
S
Separate Award Jurisdiction........................47
September 1999 Master Lease........................19
Service Station Properties.........................19
State..............................................19
Sublease.......................................19, 57
Subsidiary.........................................19
Substantial Casualty...............................19
Substantial Condemnation...........................19
Subtenant..........................................20
Subtenants.........................................57
</TABLE>
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<TABLE>
<CAPTION>
T
<S> <C>
Temporary Condemnation.............................20
Tenant..........................................1, 20
Tenant Improvements................................20
Tenant's Award.....................................20
Tenant's Condemnation Share........................21
Tenant's Organizational Documents..................86
Term...............................................24
Termination Date...................................21
Third Party Lease..................................21
Third Party Lease Estoppel Certificate.............21
Third Party Lease Non-disturbance Agreement........70
Third Party Lease Renewal Option...................22
Third Party Lease Renewal Rental...................68
Third Party Lease Spread...........................21
Third Party Lessor.................................22
Third Party Offer Notice...........................54
Trade Equipment....................................22
Transfer...........................................57
Transfer Tax Agreement.............................22
Transferee Lease...................................52
U
Unavoidable Delay..................................22
Uneconomic.........................................22
Uneconomic Threshold...............................74
Use Restriction Event..............................22
UST................................................23
UST Upgrade........................................23
W
Waiver of Subrogation..............................23
</TABLE>
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This CONSOLIDATED, AMENDED AND RESTATED MASTER LEASE (together
with all Exhibits and Schedules attached hereto, this "Restated Lease") is made
and entered into as of November 2, 2000 between Getty Properties Corp., a
Delaware corporation, whose address is 125 Jericho Turnpike, Jericho, New York
11753 (formerly known as Getty Realty Corp.,) (as further defined hereinafter,
"Landlord"), and Getty Petroleum Marketing Inc., a Maryland corporation whose
address is 125 Jericho Turnpike, Jericho, New York 11753 (as further defined
hereinafter, "Tenant").
RECITALS
A. Pursuant to that certain Master Lease, dated February 1, 1997,
between Landlord and Tenant (the "1997 Master Lease") and the
Post-Reorganization Leases (as hereinafter defined), Landlord leased to Tenant,
in addition to other properties, the lands described in Exhibit A and subleased
or sub-subleased to Tenant, in addition to other properties, the lands described
on Exhibit B (all such lands described on Exhibit A and Exhibit B being referred
to hereinafter collectively as the "Land"), together with all right, title and
interest of Landlord, if any, in and to: (a) all buildings, structures and other
improvements and appurtenances then located on the Land; (b) the land lying in
the bed of any street or highway in front of or adjoining the Land to the center
line of such street or highway; (c) the appurtenances and all the estate and
rights to the Land; (d) any strips or gores adjoining the Land; and (e) any
furnishings, fixtures, equipment or other personal property attached or
appurtenant to any improvements then located on the Land (all of the foregoing,
as they exist as of the Restatement Effective Date, including all Improvements
(as hereinafter defined) together with Landlord's right, title and interest in
and to all easements, covenants, rights of way and similar rights benefiting the
Land, collectively, the "Premises", as further defined hereinafter, and
individually, a "Property," as further defined hereinafter).
B. Landlord and Tenant desire, as of the Restatement Effective
Time (as hereinafter defined), to incorporate and consolidate the 1997 Master
Lease and the Post-Reorganization Leases (individually and collectively, the
"Original Lease") into a single document and to further amend and restate the
Original Lease, all as set forth in this Restated Lease and desire that, from
and after the Restatement Effective Time, all rights and obligations of Landlord
and Tenant shall be governed by this Restated Lease such that this Restated
Lease shall consolidate, supersede and restate in their entirety the Original
Lease from and after the Restatement Effective Time.
C. This Restated Lease is intended to constitute a single lease of
the Premises and may not be severed, bifurcated, divided, or otherwise split in
any manner whatsoever.
D. Landlord and Tenant acknowledge that (i) the entering into of
this Restated Lease is of primary importance to Tenant, and Tenant would not
have entered into (or caused any of its Affiliates or Subsidiaries to enter
into) the Merger Agreement (as hereinafter defined) without there having been
such an agreement, and (ii) the agreement between Landlord and Tenant to treat
this as a single lease in all respects is of primary importance to Landlord, and
<PAGE> 14
neither Landlord nor any of its Affiliates or Subsidiaries would have entered
into this Restated Lease without there being such an agreement and such
treatment of this Restated Lease.
NOW, THEREFORE, in exchange for good and valuable consideration,
as of the Restatement Effective Time, Landlord hereby leases, subleases and
sub-subleases the Premises to Tenant and Tenant hereby takes and hires the
Premises from Landlord, subject only to the Permitted Exceptions (as hereinafter
defined) and the Subleases (as hereinafter defined), for the Term (as
hereinafter defined), upon the terms and conditions of this Restated Lease. As
of the Restatement Effective Time, the Original Lease shall be deemed to be
consolidated, amended, restated and superceded in its entirety as follows:
1. DEFINITIONS.
The following definitions shall apply throughout this Restated
Lease, in addition to any other definitions elsewhere in this Restated Lease. An
Index of Defined Terms follows the signature page.
1.1 1998 Master Lease. The term "1998 Master Lease" means that
certain Master Lease, dated December 22, 1998, between Landlord (formerly known
as Leemilt's Petroleum, Inc.) and Tenant.
1.2 Abandoned Properties. The term "Abandoned Properties" means
the ten (10) properties listed on Schedule 1 hereto, each of which were demised
under the Original Lease and shall not be demised under this Restated Lease. The
term "Abandoned Property" shall have the correlative singular meaning.
1.3 Additional Rent. The term "Additional Rent" means, whether or
not designated as such, any and all sums and payments that this Restated Lease
requires Tenant to pay to Landlord, except Fixed Rent. Additional Rent shall
also include (a) all Impositions and (b) all percentage rent, gallonage rent,
and royalties payable under Third Party Leases, if any.
1.4 Affiliate. The term "Affiliate" means, with respect to any
Person, (i) any other Person that, directly or indirectly, controls or is
controlled by or is under common control with such Person, (ii) any other Person
that owns, beneficially, directly or indirectly, ten percent (10%) or more of
the outstanding capital stock, shares or equity interests of such Person, or
(iii) any officer, director, employee, partner or trustee of such Person or any
Person controlling, controlled by or under common control with such Person. For
the purposes of this definition, "control" (including the correlative meanings
of the terms "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, through the ownership of voting securities or partnership interests or
otherwise.
1.5 April 1999 Master Lease. The term "April 1999 Master Lease"
means that certain Master Lease, dated April 6, 1999, between Landlord (formerly
known as Leemilt's Petroleum, Inc.) and Tenant.
2
<PAGE> 15
1.6 Award. The term "Award" means compensation paid on account of
a Condemnation whether pursuant to judgment or by agreement or otherwise.
1.7 Bankruptcy Default. The term "Bankruptcy Default" means the
occurrence of any of the following Non-Monetary Defaults: (a) if Tenant shall
make an assignment for the benefit of its creditors; (b) if any petition shall
be filed against Tenant in any court, whether or not pursuant to any statute of
the United States or of any State, in any bankruptcy, reorganization,
composition, extension, arrangement, insolvency or similar proceeding, and
Tenant shall thereafter be adjudicated bankrupt, or if any such proceeding shall
not be dismissed within ninety (90) days after the institution of the same; or
if any such petition shall be so filed by Tenant or a liquidator; or (c) if, in
any proceeding, a receiver, receiver and manager, trustee or liquidator shall be
appointed for all or any portion of Tenant's property, and such receiver,
receiver and manager, trustee or liquidator shall not be discharged within
ninety (90) days after the appointment of such receiver, receiver and manager,
trustee or liquidator.
1.8 Business Day. The term "Business Day" means any weekday on
which banks in the State of New York are generally open to conduct regular
banking business with bank personnel.
1.9 Casualty. The term "Casualty" means any damage or destruction
affecting any or all of the Improvements on any Property.
1.10 Closure. The term "Closure" means:
(a) Receipt of written notice from the applicable Government that
"no further Remediation" of the Contamination is required;
(b) Receipt of written notice from the applicable Government that
the approved Remediation plan for the Contamination has been
completed;
(c) Where expressly authorized by applicable Environmental Law,
receipt of written notice from a licensed site professional or
similar Remediation consultant approved by Tenant or Landlord (if
chosen by the other party), such approval not to be unreasonably
withheld, that the approved Remediation plan for the Contamination
has been completed, provided that Landlord or Tenant, as
applicable, shall remain responsible for any additional
Remediation required by the applicable Government resulting from
the applicable Government's audit of the Remediation that the
licensed site professional or similar Remediation consultant has
determined to have been completed; or
(d) Landlord or Tenant as applicable, has requested a closure
letter or notice from the applicable Government, has not received
any response of any kind to its request for twelve (12) months,
and Landlord or Tenant, as applicable, has determined that the
soil and groundwater have been Remediated to levels below or equal
to the limits required by the applicable Government at the
conclusion of the twelve-month period following submission of the
Closure letter request based
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on four (4) successive quarterly monitoring tests by a recognized
environmental contractor.
The satisfaction of any one of the above conditions shall be referred to as
"Closure" herein. "No further Remediation" shall include, without limitation,
"closed" "no further action," "inactive site status" or similar terms, even if
such letters have qualifications such as "at this time," "does not meet state
standards," or the like.
1.11 Commencement Date. The term "Commencement Date" means (a)
with respect to those Properties leased or subleased to Tenant by the 1997
Master Lease, February 1, 1997; (b) with respect to those Properties leased to
Tenant by the 1998 Master Lease, December 22, 1998 with respect to certain of
such Properties and otherwise the date set forth on Exhibit A thereto; (c) with
respect to those Properties leased to Tenant by the April 1999 Master Lease,
April 6, 1999; and (d) with respect to those Properties leased to Tenant by the
September 1999 Master Lease, (i) October 6, 1999 with respect to the Property
having a street address of 592 Route 70, Brick, New Jersey and (ii) September
30, 1999 with respect to the Property having a street address of 650 Route 15
South, Lake Hopatcong, New Jersey.
1.12 Condemnation. The term "Condemnation" means any taking of
title to any Property or any part of any Property by exercise of any right of
eminent domain by, or by any similar proceeding or act of, any Government,
quasi-public authority or private corporation having the power and legal
authority to do so. For the purposes of this definition, the effective date of
any such condemnation shall be deemed to be the later of: (a) the date when
title to the applicable Property or part thereof is transferred by such
proceeding or act of the condemning authority, and (b) the date when Tenant or
the applicable Subtenant or other occupant is no longer permitted to occupy such
Property.
1.13 Construction Work. The term "Construction Work" means any
alteration, modification, demolition, or other construction or reconstruction
work, or the construction or reconstruction of any new Improvements, or repair
of any existing Improvements, located on, under or at any Property.
1.14 Contamination. The term "Contamination" means recoverable
free liquid hydrocarbons, dissolved hydrocarbon components, absorbed and vapor
phase hydrocarbon, or other environmental contamination that is required to be
Remediated under applicable Environmental Laws.
1.15 County. The term "County" means the county where any Property
is located.
1.16 CPI. The term "CPI" means the United States Department of
Labor, Bureau of Labor Statistics "Consumer Price Index" for Urban Wage Earners
and Clerical Workers (CPI-W) published for New York - Northern New Jersey - Long
Island, NY-NJ-CT-PA, with a base of 1982-1984 = 100, or the successor index
thereto. If the CPI ceases to be published, and there is no successor thereto,
such other index as Landlord and Tenant shall agree
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upon in writing shall be substituted for the CPI. The CPI for any calendar month
shall be deemed to mean the CPI last published before such calendar month.
1.17 CPI Adjustment Factor. As of any date of determination, the
term "CPI Adjustment Factor" means the greater of (a) 1.00 or (b) the following
fraction:
CPI for the calendar month immediately preceding
such date of determination
------------------------------------------------
CPI for the calendar month
during which the Restatement
Effective Date occurred.
1.18 Default. The term "Default" means any Material Monetary
Default, Non-Material Monetary Default, Non-Monetary Default or Landlord
Default.
1.19 Depository. The term "Depository" means, at Tenant's or
Leasehold Mortgagee's election, any of the following: (a) an Institutional
Lender, (b) Leasehold Mortgagee, (c) a national title insurance company
reasonably acceptable to Landlord and licensed to do business in the State of
New York, or (d) a servicer regularly used by Institutional Lenders in
connection with loan transactions. Tenant shall pay all fees and expenses
charged by the Depository.
1.20 Distribution Agreement. The term "Distribution Agreement"
means that certain Reorganization and Distribution Agreement dated as of January
31, 1997 transferring to Tenant the Marketing Assets and Marketing Business (as
such terms are defined therein) in connection with that certain distribution by
Landlord of the common stock of Tenant to the stockholders of Landlord, as
amended from time to time.
1.21 Environmental Agreement. The term "Environmental Agreement"
means that certain Environmental Indemnity Agreement between Landlord and Tenant
dated as of the date hereof, as the same may be amended or modified from time to
time.
1.22 Environmental Law. The term "Environmental Law" means all
laws, ordinances, requirements, orders, directives, rules, regulations, and
applicable judicial and administrative decisions, orders and decrees of any
applicable Government affecting the development, improvement, alteration, use,
maintenance, operation or occupancy of the Premises, any Property, or any part
of any Property, whether in force at the Commencement Date or passed, enacted or
imposed at some time in the future, to the extent applicable to conditions on,
under, or about the Premises, any Property, or any part of any Property, or
arising from use or occupancy thereof, related to pollution, protection of human
health or the environment from exposure to Hazardous Substances, including but
not limited to, Laws relating to the release or discharge of Hazardous
Substances to the ambient air, surface and subsurface soils, surface water and
ground water, or governing the use, generation, storage, transportation,
disposal, release, clean-up or control of Hazardous Substances in, on, at, to or
from the Premises, any Property, or any part of any Property, subject in all
cases, however, to all applicable waivers, variances and exemptions limiting the
application of the foregoing.
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1.23 Equipment Liens. The term "Equipment Liens" means
purchase-money security interests, financing leases, personal property liens,
and similar arrangements (including the corresponding UCC-1 financing
statements) relating to Tenant's and/or Subtenant's acquisition, encumbering or
financing of Personal Property, and used in connection with the operation of any
business on the Premises not prohibited by this Restated Lease or any Third
Party Lease, that are leased, purchased pursuant to conditional sale or
installment sale arrangements, encumbered by a security agreement made by Tenant
and/or any Subtenant, as the case may be, or used under licenses, such as
convenience food store equipment, gasoline marketing equipment, USTs (not owned
by Landlord), furniture, fixtures and equipment, telephone, telecommunications
and facsimile transmission equipment, point of sale equipment, televisions,
radios, and computer systems, provided that each Equipment Lien encumbers or
otherwise relates to only the property financed or otherwise provided by the
secured party under such Equipment Lien.
1.24 Estoppel Certificate. The term "Estoppel Certificate" means a
statement in writing containing all of the following statements (identifying in
reasonable detail any exceptions that may exist at the time), as requested by
either party: (a) this Restated Lease has not been amended or modified,
constitutes the entire agreement between Landlord and Tenant relating to the
Premises, and is in full force and effect (or, if there have been amendments or
modifications, that this Restated Lease as so amended or modified is in full
force and effect and stating such amendments or modifications); (b) neither
Landlord nor Tenant is in default under this Restated Lease and to the best of
the signer's knowledge no facts or circumstances exist that, with the passage of
time or the giving of notice or both, would constitute Defaults under this
Restated Lease by Landlord or Tenant (or, if there have been any Defaults or
potential Defaults, specifying the nature of any such Default or potential
Default); (c) Tenant has paid all Fixed Rent to date and, to the best of
Landlord's knowledge, all Additional Rent to date; (d) the Commencement Date,
the Restatement Effective Date, or any other then-ascertainable date relevant to
this Restated Lease; (e) this Restated Lease is a single lease demising the
Premises and may not be severed, bifurcated, divided or otherwise split in any
manner whatsoever; and (f) such other matters as either party shall reasonably
request.
1.25 Fee Estate. The term "Fee Estate" means Landlord's fee estate
in the Premises or any Property or, in the case of a Property owned by a Third
Party Lessor or the Power Test Lessor, the fee estate of such Third Party Lessor
or the Power Test Lessor in such Property, as applicable.
1.26 Fee Mortgage. The term "Fee Mortgage" means any mortgage,
deed of trust, deed to secure debt, assignment, security interest, pledge,
financing statement or any other instrument(s) or agreement(s) intended to grant
security for any obligation encumbering the Fee Estate or Landlord's leasehold
interest in any Fee Estate owned by a Third Party Lessor or the Power Test
Lessor, as the case may be, as existing, entered into, renewed, modified,
amended, extended or assigned from time to time during the Term.
1.27 Fixed Rent. The term "Fixed Rent" means all rent payable
under Section 3.1.
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1.28 Fixed Rent Adjustment Procedures. The term "Fixed Rent
Adjustment Procedures" shall have the meaning ascribed to it on Schedule 4.
1.29 Fleet Mortgage. The "Fleet Mortgage" means those certain
Fee Mortgages securing the Power Test Lessor's obligations pursuant to that
certain Amended and Restated Loan Agreement between the Power Test Lessor and
Fleet National Bank dated October 31, 1995, as subsequently amended.
1.30 GAAP. The term "GAAP" means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession of the United States of
America, in all cases as interpreted by a significant segment of the accounting
profession of the United States of America.
1.31 Government. The term "Government" means each and every
applicable governmental authority, department, agency, bureau or other entity or
instrumentality having jurisdiction over the Premises, including the federal
government of the United States, the State government and any subdivisions and
municipalities thereof, including the County government, and all other
applicable governmental authorities and subdivisions thereof.
1.32 Governmental Request. The term "Governmental Request"
means, with respect to any Person, such Person's filing for (or other similar
process) a building permit, fire underwriter's certificate, zoning variance or
similar permit, certificate or license or such Person's making of any other
inquiries with respect to any Property to the applicable Government.
1.33 Hazardous Substances. The term "Hazardous Substances"
means those flammable substances, explosives, radioactive materials, asbestos,
polychlorinated biphenyls, chemicals known to cause cancer or reproductive
toxicity, pollutants, contaminants, hazardous wastes, medical wastes, toxic
substances or related materials, petroleum and petroleum products, or other
substances of any kind that are subject to regulation, control or remediation
under Environmental Laws.
1.34 Impositions. The term "Impositions" means all Real Estate
Taxes, water rents, rates and charges, sewer rents, commercial rent taxes,
occupancy taxes (other than those that are treated as Real Estate Taxes), UST
fees and taxes, and other impositions and charges of every kind and nature
whatsoever with respect to any Property that may be assessed, levied, confirmed,
imposed or become a lien on any Property or that may be levied, assessed or
imposed upon the gross income arising from any Rent (in all cases, other than on
account of any actions or omissions of Landlord, a Third Party Lessor or the
Power Test Lessor or conditions existing on, at or with respect to any Property
before the applicable Commencement Date), in all cases, by or for the benefit of
any Government with respect to any period falling within the period from the
Commencement Date through the end of the Term. Notwithstanding the foregoing,
all such obligations of a lessee in a Third Party Lease and a Power Test Lease
(except to the extent, if any, such item is included as Fixed Rent hereunder)
are also Impositions. The term
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"Impositions" shall, however, not include any of the following, all of which
Landlord shall pay before delinquent or payable only with a penalty: (a) any
franchise, income, excess profits, estate, inheritance, succession, transfer,
gift, corporation, business, capital levy, or profits tax, or license fee (other
than a license fee imposed with respect to any Property or the Improvements
thereon the maintenance of which is Tenant's responsibility pursuant to the
terms of this Restated Lease) of Landlord, (b) the incremental portion of any of
the items listed in this Section that would not have been levied, imposed or
assessed but for any sale or other direct or indirect transfer of the Fee Estate
or of any interest in Landlord during the Term, (c) any charges that would not
have been payable but for any act or omission of Landlord or conditions existing
on, at or with respect to the Property before the applicable Commencement Date,
(d) any charges that are levied, assessed or imposed against any Property during
the Term based on the recapture or reversal of any previous tax abatement or tax
subsidy, or compensating for any previous tax deferral or reduced assessment or
valuation, or based on a miscalculation or misdetermination of any charge(s) of
any kind imposed or assessed with respect to the Premises, relating to any
period(s) before the applicable Commencement Date, and (e) interest, penalties
and other charges with respect to items "a" through "d."
1.35 Improvements. The term "Improvements" means all
buildings, structures, landscaping, recreational facilities, signs, foundations,
and other improvements, appurtenances and above-ground storage tanks now or
hereafter located on the Premises. Under no circumstances shall the term
"Improvements" be deemed to include any of the USTs, for which separate
provision is made under this Restated Lease.
1.36 Indemnify. Wherever this Restated Lease provides that a
party shall "Indemnify" another from or against a particular matter, such term
means that the Indemnitor shall indemnify the Indemnitee (and its partners,
officers, directors, members, shareholders, agents, contractors and employees)
and defend and hold the Indemnitee (and its partners, officers, directors,
members, shareholders, agents, contractors and employees) harmless from and
against any and all actual loss, cost, claims, liability, penalties, judgments,
damage or other injury, detriment, or expense (including Legal Costs, interest
and penalties) actually incurred or suffered by the Indemnitee (and its
partners, officers, directors, members, shareholders, agents, contractors and
employees) on account of the matter that is the subject of such indemnification
or in enforcing the Indemnitor's indemnity. Notwithstanding the foregoing or
anything to the contrary contained in this Restated Lease, Indemnitor shall
under no circumstances whatsoever be liable for consequential damages incurred
by Indemnitee on account of the matter that is the subject of such
indemnification.
1.37 Indemnitee. The term "Indemnitee" means a party that is
entitled to be Indemnified pursuant to this Restated Lease.
1.38 Indemnitor. The term "Indemnitor" means a party that
agrees to Indemnify another party pursuant to this Restated Lease.
1.39 Institutional Lender. The term "Institutional Lender"
means a bank, trust company, insurance company or savings bank having, at any
and all times, a net worth of not less
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than $500,000,000 (as increased on an annual basis, based on the CPI Adjustment
Factor) and net assets of not less than $2,500,000,000 (as increased on an
annual basis, based on the CPI Adjustment Factor); provided that any such entity
shall qualify as an "Institutional Lender" only if such entity (a) is not an
Affiliate of Tenant (unless such entity is an Affiliate of Tenant solely as a
result of making a bona fide equity investment in Tenant); and (b) is subject to
(1) the jurisdiction of the courts of the State of New York in any actions and
(2) the supervision of (A) the Comptroller of the Currency, (B) the Department
of Labor of the United States, (C) the Insurance Department or the Banking
Department or the Comptroller of New York City, or any successor to any of the
agencies or officials referred to in clauses (A) through (C).
1.40 Insubstantial Condemnation. The term "Insubstantial
Condemnation" means any Condemnation other than a Substantial Condemnation or a
Temporary Condemnation.
1.41 Knowledge. The term "knowledge", means, with respect to
Landlord, the actual knowledge of Leo Liebowitz, Randi Young Filip, John
Fitteron, Edwin C. Levy, Scott Hanley, Vincent DeLaurentis, and Paul Stendardi,
with inquiry, which inquiry (a) shall consist of and be limited to inquiry of
employees of Landlord who may be reasonably expected to have information with
respect to the relevant matter and (b) shall in no event require any review of
any files, databases or records which may contain relevant information. The
phrase "to the best of Landlord's knowledge" shall have the same meaning.
1.42 Landlord. The term "Landlord" means Getty Properties
Corp. (formerly known as Getty Realty Corp.) and certain of its Affiliates
and/or Subsidiaries, who have approved this Restated Lease on the signature page
hereof, and their respective successors and assigns.
1.43 Landlord's Award. The term "Landlord's Award" means, at
any point in time, an amount equal to the then fair market value of the Fee
Estate (which, for the purposes of this definition, shall include Landlord's
leasehold interest in the Fee Estates owned by a Third Party Lessor or the Power
Test Lessor (it being understood that the Power Test Lessor, as landlord
thereunder, and Landlord, as tenant thereunder shall in no event seek Awards
with respect to the same estate or interest in the Fee Estate encumbered by any
such Power Test Lease) in the applicable Property (including the then fair
market value of the rights of the holder of such Fee Estate in and to the
Improvements thereon), considered: (i) as if the Condemnation had not occurred;
(ii) without adjusting for any expectation of the Condemnation; (iii) as if this
Restated Lease had not terminated with respect to the applicable Property as of
the effective date of the Condemnation; and (iv) taking into account the
benefits and burdens of this Restated Lease, the remaining Term (as further
defined in this definition), all Permitted Exceptions, and all other matters
affecting such Fee Estate and its valuation. For the purposes of calculating
"Landlord's Award," the Term of this Restated Lease shall include only those
Renewal Terms for which Tenant had previously exercised its Renewal Option in
accordance with the provisions of this Restated Lease. "Landlord's Award" shall
be determined independently of, and without regard to, any valuation of the Fee
Estate established in any Condemnation proceeding.
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1.44 Law. The term "Law" or "Laws" means all laws, ordinances,
requirements, orders, directives, rules, regulations, and applicable judicial
and administrative decisions, orders and decrees of any applicable Government
affecting the development, improvement, alteration, use, maintenance, operation
or occupancy of the Premises, any Property, or any part of any Property, whether
in force at the Commencement Date or passed, enacted or imposed at some time in
the future, subject in all cases, however, to all applicable waivers, variances
and exemptions limiting the application of the foregoing. Notwithstanding the
foregoing, for the purposes of this Restated Lease, the terms "Law" and "Laws"
shall in no event be deemed to include Environmental Law or Environmental Laws,
for which separate provision is made herein.
1.45 Lease Termination Damages. The term "Lease Termination
Damages" means an amount per annum equal to the Annual Damage Amount (as defined
hereinafter), payable in accordance with the following sentence. Landlord shall
pay the Annual Damage Amount to Tenant quarterly, in equal installments, for
each calendar year (or portion thereof) during the shortest of the following
periods, as applicable: (a) a five (5) year period commencing on the termination
of the applicable Third Party Lease, (b) the period of the then remaining Term
of this Restated Lease, and (c) the period of the then remaining term of the
terminated Third Party Lease. As used herein, the term "Annual Damage Amount"
means a sum equal to the product of (a) the volume of gas sales in gallons at
the Property with respect to which a Third Party Lease has been terminated in
the twelve (12) full calendar months immediately prior to the termination of
such Third Party Lease, times (b) ten cents ($.10), less an equitable amount
attributable to Tenant's cost of doing business at such Property (including,
without limitation, the Rent allocable to such Property, the determination of
which shall be made in accordance with the principles set forth in the Fixed
Rent Adjustment Procedures) during such period.
1.46 Lease Year. The first "Lease Year" of this Restated Lease
means the twelve-month period commencing on the Restatement Effective Date and
ending on the day before the first anniversary of the Restatement Effective
Date. The second "Lease Year" means the period commencing on the first
anniversary of the Restatement Effective Date and ending on the day before the
second anniversary of the Restatement Effective Date; and so on for each
subsequent twelve-month period during the Initial Term and, if any, the Renewal
Term(s).
1.47 Leasehold Estate. The term "Leasehold Estate" means
Tenant's leasehold estate in any Property owned by Landlord in fee and demised
under this Restated Lease and, in the case of a Property owned by a Third Party
Lessor or the Power Test Lessor, Tenant's subleasehold estate demised under this
Restated Lease, in all cases upon and subject to all the terms and conditions of
this Restated Lease.
1.48 Leasehold Mortgagee. The term "Leasehold Mortgagee" means
a Permitted Leasehold Mortgagee holding a Permitted Leasehold Mortgage.
1.49 Legal Costs. The term "Legal Costs" means all reasonable
costs and expenses incurred by a party to this Restated Lease in connection with
any legal proceeding or contest, including reasonable attorneys' fees,
consultant's fees, court costs, and expenses.
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1.50 License Agreement. The term "License Agreement" means
that certain Amended and Restated Trademark License Agreement dated as of the
date hereof, as the same may be amended or modified from time to time.
1.51 Major Violation. The term "Major Violation" means a
Preexisting Violation which results in a Government sending written notice to
Landlord, Tenant, a Subtenant, a Third Party Lessor, the Power Test Lessor or a
Property that such Preexisting Violation is a violation of Law and requiring
cure of the same.
1.52 Marketing Parent. The term "Marketing Parent" means OAO
LUKoil, a Russian Corporation, and its successors and assigns.
1.53 Material Monetary Default. The term "Material Monetary
Default" means any failure by Tenant (A) to pay Fixed Rent or Real Estate Taxes,
in either case when, as and in the amount required to be paid by Tenant pursuant
to the terms of this Restated Lease or (B) in the case of insurance, to maintain
the insurance coverage required in Article 12. Notwithstanding the preceding
sentence, a "Material Monetary Default" will not be deemed to occur with respect
to Tenant's failure to pay any Real Estate Tax unless Tenant fails to pay such
Real Estate Tax on or prior to the last day on which such Real Estate Tax may be
paid to the appropriate taxing authority without penalty or interest.
1.54 Merger Agreement. The term "Merger Agreement" means that
certain Agreement and Plan of Merger dated as of the date hereof among OAO
LUKOIL, LUKOIL International GmbH, LUKOIL Americas Corporation, Mikecon Corp.,
and Getty Petroleum Marketing Inc., as the same may be amended or modified from
time to time.
1.55 Mortgage. The term "Mortgage" means a Fee Mortgage or a
Permitted Leasehold Mortgage.
1.56 New Contamination. The term "New Contamination" means
Contamination discovered at any Property at which Landlord is conducting
Remediation under Section 9.2, which Properties are set forth on Schedule 3,
after Landlord has commenced such Remediation and before Closure is obtained by
Landlord. Tenant shall have the burden of proving that any such discovered
Contamination is not New Contamination but Contamination for which Landlord is
obligated to Remediate.
1.57 Non-Material Monetary Default. The term "Non-Material
Monetary Default" means any failure by Tenant to pay any charge or sum(s) of
money payable by Tenant pursuant to this Restated Lease (other than Fixed Rent,
Real Estate Taxes and insurance premiums required to maintain the insurance
coverage set forth in Article 12 hereof), when, as, and in the amount required
to be paid by Tenant pursuant to the terms of this Restated Lease.
1.58 Non-Monetary Default. The term "Non-Monetary Default"
means any failure by Tenant to comply with any terms or provisions of, or
perform as required by, this Restated Lease, other than a Material Monetary
Default or a Non-Material Monetary Default. A Bankruptcy Default shall be
considered a Non-Monetary Default.
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1.59 Notice. The term "Notice" means any notice, demand,
request, election, designation, approval, or consent, including any of the
foregoing relating to a Default by any party hereunder, that is permitted,
required or desired to be given by either party in connection with this Restated
Lease. Notices shall be delivered, and shall become effective, only in
accordance with the requirements of Article 20.
1.60 Pelham Manor Rezoning Event. The term "Pelham Manor
Rezoning Event" means the date when, as a result of the enactment of a final,
non-appealable change in Law, the use of the Property having a mailing address
of 4301 Boston Post Road, Bronx, New York 10466 as a Petroleum Terminal Property
is no longer lawful.
1.61 Permitted Exception. The term "Permitted Exception" means
all liens, charges, estates and encumbrances currently affecting the Premises as
of the Restatement Effective Date.
1.62 Permitted Leasehold Mortgage. The term "Permitted
Leasehold Mortgage" means any mortgage, deed of trust, deed to secure debt,
assignment, security interest, pledge, financing statement or any other
instrument(s) or agreement(s) that is held by a Permitted Leasehold Mortgagee
and is intended to grant security for any obligation encumbering the entire
Leasehold Estate, as the same may be entered into, renewed, modified, amended,
extended or assigned from time to time during the Term.
1.63 Permitted Leasehold Mortgagee. The term "Permitted
Leasehold Mortgagee" means any of (i) an Institutional Lender, (ii) any of the
entities described on Schedule 8, and (iii) any other entity which has
characteristics (as to, among other things, reputation, financial viability and
experience) similar to those entities listed on said Schedule, as reasonably
determined by Tenant, and is not, at the time of the making of the Permitted
Leasehold Mortgage, in Landlord's reasonable judgment, in competition with
Landlord.
1.64 Person. The term "Person" means any association, bank,
business trust, corporation, estate, general partnership, Government,
individual, joint stock company, joint venture, labor union, limited liability
company, limited partnership, non-profit corporation, professional association,
professional corporation, trust or any other organization of any type or person.
1.65 Personal Property. The term "Personal Property" means all
Trade Equipment as well as supplies and inventory, books and records,
intangibles, and any and all other items of personal property located at the
Premises, except, in all cases, those which are owned by a Third Party Lessor.
Under no circumstances shall the term "Personal Property" be deemed to include
any of the USTs, for which separate provision is made under this Restated Lease.
1.66 Personal Property Letter. The term "Personal Property
Letter" means that certain letter agreement, dated as of the date hereof,
between Landlord and Tenant relating to the ownership of Personal Property
located on the Premises.
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1.67 Petroleum Terminal Properties. The term "Petroleum
Terminal Properties" means those Properties which are terminals for the storage
and distribution of petroleum products either owned or leased by Landlord or one
of its Affiliates and/or Subsidiaries. As of the date hereof, the Petroleum
Terminal Properties are as set forth on Exhibit J.
1.68 Post-Reorganization Leases. The term "Post-Reorganization
Leases" means the 1998 Master Lease, the April 1999 Master Lease, and the
September 1999 Master Lease.
1.69 Power Test Lease. The term "Power Test Lease" means a
lease between the Power Test Lessor, as landlord, and Landlord, as tenant, for a
Property. As used in this definition, the term "Landlord" shall be deemed to
include any Affiliate and/or Subsidiary of Landlord that is the tenant under any
Power Test Lease. The term "Power Test Leases" shall have the correlative plural
meaning, as such lease has been amended as of the date hereof.
1.70 Power Test Lease Estoppel Certificate. The term "Power
Test Lease Estoppel Certificate" means a statement in writing containing all of
the following statements (identifying in reasonable detail any exceptions that
may exist at the time), as requested by Tenant: (a) the Power Test Leases have
not been amended or modified, constitute the entire agreement between the Power
Test Lessor and Landlord (which term "Landlord" shall be deemed to include any
Affiliate and/or Subsidiary of Landlord that is the tenant under any Power Test
Lease for the purposes of this definition) relating to the Properties subject to
the Power Test Leases and are in full force and effect (or, if there have been
amendments or modifications, that the Power Test Leases as so amended or
modified are in full force and effect and stating such amendments or
modifications); (b) neither the Power Test Lessor nor Landlord is in material
default under the Power Test Leases and, to the best of the Power Test Lessor's
knowledge, no facts or circumstances exist that, with the passage of time or the
giving of notice or both, would constitute material defaults under the Power
Test Leases by the Power Test Lessor or Landlord (or, if there have been any
material defaults or potential material defaults, specifying the nature of any
such material default or potential material default); (c) Landlord has paid all
rent to date; (d) any then-ascertainable date relevant to the Power Test Leases;
and (e) such other matters as Tenant shall reasonably request.
1.71 Power Test Lessor. The term "Power Test Lessor" means
Power Test Realty Company Limited Partnership and its successors and assigns, as
lessor under the Power Test Leases.
1.72 Premises. The term "Premises" shall have the meaning set
forth in the first Recital paragraph of this Restated Lease, except that the
term "Premises" shall not be deemed to include any Property which may be deleted
from this Restated Lease from time to time (a) pursuant to the express
provisions of Article 13, 14, 15, 22 or 25 of this Restated Lease; or (b) by the
mutual agreement of the parties hereto.
1.73 Prime Rate. The term "Prime Rate" means the prime rate or
equivalent "base" or "reference" rate for corporate loans that, at Landlord's
election, by Notice to Tenant, is:
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(a) published from time to time in the Wall Street Journal; (b) announced from
time to time by the commercial banking unit of the Chase Manhattan Corporation,
New York, New York, or any other large United States "money center" commercial
bank designated by Landlord; or (c) if such rate is no longer so published or
announced, then a reasonably equivalent rate published by an authoritative third
party designated by Landlord. Notwithstanding anything to the contrary in this
Section, the Prime Rate shall never exceed the highest rate of interest legally
permitted to be charged in transactions of the character of this Restated Lease
between parties of a character similar to Landlord and Tenant.
1.74 Prohibited Liens. The term "Prohibited Lien" means any
mechanic's, vendor's, laborer's or material supplier's statutory lien or other
similar lien arising by reason of work, labor, services, equipment or materials
supplied, or claimed to have been supplied, to Tenant, which lien either: (a) is
filed against the Fee Estate or Landlord's leasehold interest in any Fee Estate
owned by a Third Party Lessor or the Power Test Lessor or (b) is filed against
the Leasehold Estate and, upon termination of this Restated Lease, would under
the Law of the State attach to the Fee Estate or Landlord's leasehold interest
in any Fee Estate owned by a Third Party Lessor or the Power Test Lessor.
Notwithstanding anything to the contrary in this Restated Lease, an Equipment
Lien shall not constitute a Prohibited Lien and nothing in this Restated Lease
shall prohibit Tenant and/or Subtenant from creating, or require Tenant and/or
Subtenant, as the case may be, to remove, any Equipment Lien except upon
termination of this Restated Lease.
1.75 Property. The term "Property" shall have the meaning set
forth in the first Recital paragraph of this Restated Lease, except that the
term "Property" shall not be deemed to include any property which may be deleted
from this Restated Lease from time to time (a) pursuant to the express
provisions of Article 13, 14, 15, 22 or 25 or (b) by the mutual agreement of the
parties hereto. The term "Properties" shall have the correlative plural meaning.
1.76 Real Estate Taxes. The term "Real Estate Taxes" means all
taxes and special and general assessments that may be assessed, levied,
confirmed, imposed or become a lien on any Property (other than on account of
any actions or omissions of Landlord, a Third Party Lessor or the Power Test
Lessor or conditions existing on, at or with respect to any such Property before
the applicable Commencement Date) by or for the benefit of any Government with
respect to any period during the Term, together with any taxes, assessments and
occupancy taxes that may be levied, assessed or imposed by any Government in
lieu of or as a substitute, in whole or in part, for any of the foregoing.
Notwithstanding the foregoing, all such items referred to above which are the
obligation of a lessee under a Third Party Lease and a Power Test Lease (except
to the extent, if any, such item is included as Fixed Rent hereunder) are also
"Real Estate Taxes." The term "Real Estate Taxes" shall, however, not include
any of the following, all of which Landlord shall pay before delinquent or
payable only with a penalty: (a) any franchise, income, excess profits, estate,
inheritance, succession, transfer, gift, corporation, business, capital levy, or
profits tax, or license fee (other than a license fee imposed with respect to
any Property or the Improvements thereon the maintenance of which is Tenant's
responsibility pursuant to the terms of this Restated Lease) of Landlord, (b)
the incremental portion of any of the items listed in this Section that would
not have been levied, imposed or assessed but for any sale or other direct
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or indirect transfer of the Fee Estate or of any interest in Landlord during the
Term, (c) any charges that would not have been payable but for any act or
omission of Landlord or conditions existing on, at or with respect to any
Property before the applicable Commencement Date, (d) any charges that are
levied, assessed or imposed against any Property during the Term based on the
recapture or reversal of any previous tax abatement or tax subsidy, or
compensating for any previous tax deferral or reduced assessment or valuation,
or based on a miscalculation or misdetermination of any charge(s) of any kind
imposed or assessed with respect to the Premises, relating to any period(s)
before the applicable Commencement Date, and (e) interest, penalties and other
charges with respect to items "a" through "d."
1.77 Realty Parent. The term "Realty Parent" means Getty
Realty Corp., and its successors and assigns.
1.78 Remediate. The term "Remediate," "Remediation," and/or
"Remediated" means those activities, including investigation, monitoring and, as
necessary, cleaning up, removing, treating, covering or in any other way
remediating Contamination in the environment at or emanating from any Property,
including those Properties set forth on Schedule 2, Schedule 3 and Exhibit C so
as to achieve Closure, but excluding the repair, removal or replacement of USTs,
except as set forth in Section 7.6. The required levels of Remediation at any
particular Property shall be limited solely to those limits in place by the
applicable Government at the time of the Closure.
1.79 Renewal Option. The term "Renewal Option" means the right
to renew this Restated Lease as provided in Section 2.1 hereof.
1.80 Rent. The term "Rent" means Fixed Rent and Additional
Rent.
1.81 Restatement Effective Date. The term "Restatement
Effective Date" means the initial acceptance for payment of shares of Company
Common Stock (as defined in the Merger Agreement) pursuant to the Offer (as
defined in the Merger Agreement).
1.18A Restatement Effective Time. The term "Restatement
Effective Time" means the time which is two (2) hours prior to the time that
the conditions referred to in the definition of Restatement Effective Date have
been satisfied.
1.82 September 1999 Master Lease. The term "September 1999
Master Lease" means that certain Master Lease, dated September 30, 1999, between
Landlord and Tenant.
1.83 Service Station Properties. The term "Service Station
Properties" means Properties which are currently used to sell motor fuels or
convenience store items or both, and in some instances are used for motor
vehicle repairs and/or other services ancillary to the sale of motor fuels or
convenience store items.
1.84 State. The term "State" means the State or Commonwealth
where the Properties are located.
1.85 Sublease. The term "Sublease" means any sublease or
sub-sublease of any Property or any part of any Property, or any other agreement
or arrangement (including a license agreement, occupancy agreement or concession
agreement) made by Tenant granting any third party the right to occupy, use or
possess any Property or any portion of any Property, including,
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without limitation, those subleases between Tenant and lessee-dealers with
respect to certain Service Station Properties. The term "Subleases" shall have
the correlative plural meaning.
1.86 Subsidiary. The term "Subsidiary" means, with respect to
any Person, any other Person (i) in which such Person owns directly, or
indirectly through one or more subsidiaries, more than fifty percent (50%) of
the voting or beneficial interest, or (ii) which such Person otherwise has the
right or power to control (whether by contract, through ownership of securities
or otherwise). The term "Subsidiaries" shall have the correlative plural
meaning.
1.87 Substantial Casualty. The term "Substantial Casualty"
means any Casualty that, in Tenant's reasonable judgment, renders a Property
unsuitable for the then current use of such Property at the time of the
Casualty.
1.88 Substantial Condemnation. The term "Substantial
Condemnation" means any Condemnation that, in Tenant's reasonable judgment,
renders the remaining portion of a Property unsuitable for the conduct of the
then current use of the Property at the time of the Condemnation. Tenant may
waive its right to treat as a Substantial Condemnation any Condemnation that
would otherwise qualify as such.
1.89 Subtenant. The term "Subtenant" means any person having
rights of occupancy, use or possession under a Sublease, and any
concessionaires, occupants and licensees that Tenant elects to treat as
Subtenants, including, without limitation, lessee-dealers subleasing any Service
Station Property.
1.90 Temporary Condemnation. The term "Temporary Condemnation"
means a Condemnation relating to the temporary right to use or occupy a Property
or any part of a Property.
1.91 Tenant. The term "Tenant" means (a) for certain Service
Station Properties located in the Mid-Hudson Valley, Kingston Oil Supply Corp.
and for all other Service Station Properties, Getty Petroleum Marketing Inc. and
(b) for certain Petroleum Terminal Properties located in the Mid-Hudson Valley,
Kingston Oil Supply Corp. and for all other Petroleum Terminal Properties, Getty
Terminals Corp., including, in all cases, any and all successors and assigns of
such entities as may be permitted hereunder.
1.92 Tenant Improvements. The term "Tenant Improvements" means
any and all Improvements constructed on any Property by Tenant at any time
between the applicable Commencement Date with respect to such Property and the
Restatement Effective Date and at any time during the Term.
1.93 Tenant's Award. The term "Tenant's Award" means, at any
point in time, an amount equal to the then fair market value of the Leasehold
Estate in the applicable Property (including the then fair market value of the
rights of Tenant in and to any Improvements thereon), considered: (i) as if the
Condemnation had not occurred; (ii) without adjusting for any expectation of the
Condemnation; (iii) as if this Restated Lease had not terminated with respect to
the applicable Property as of the effective date of the Condemnation; and (iv)
taking into
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account the benefits and burdens of this Restated Lease, the remaining Term (as
further defined in this definition), all Permitted Exceptions, and all other
matters affecting such Leasehold Estate and its valuation. For the purposes of
calculating "Tenant's Award," the term of this Restated Lease shall include only
those Renewal Terms for which Tenant had previously exercised its Renewal Option
in accordance with the provisions of this Restated Lease. "Tenant's Award" shall
be determined independently of, and without regard to, any valuation of the
Leasehold Estate established in any Condemnation proceeding.
1.94 Tenant's Condemnation Share. The term "Tenant's
Condemnation Share" means the following fraction:
Tenant's Award
---------------------------------
The sum of Tenant's Award and
Landlord's Award
1.95 Termination Date. The term "Termination Date" means the
date when this Restated Lease terminates or expires (i) for the Premises,
whether pursuant to the expiration of the Term as provided for in this Restated
Lease or pursuant to Landlord's exercise of remedies upon occurrence of a
Material Monetary Event of Default or (ii) for any Property, (a) pursuant to the
express provisions of Article 13, 14, 15, 22 or 25 of this Restated Lease or (b)
by the mutual agreement of the parties hereto to delete such individual Property
from this Restated Lease.
1.96 Third Party Lease. The term "Third Party Lease" means a
lease between a Third Party Lessor, as landlord and Landlord, or an Affiliate
and/or Subsidiary of Landlord, as tenant, for any Property. The Power Test
Leases are not Third Party Leases for any purpose hereunder.
1.97 Third Party Lease Estoppel Certificate. The term "Third
Party Lease Estoppel Certificate" means a statement in writing containing all of
the following statements (identifying in reasonable detail any exceptions that
may exist at the time), as requested by Tenant: (a) the applicable Third Party
Lease has not been amended or modified, constitutes the entire agreement between
the Third Party Lessor and Landlord relating to the Property subject to such
Third Party Lease and is in full force and effect (or, if there have been
amendments or modifications, that such Third Party Lease as so amended or
modified is in full force and effect and stating such amendments or
modifications); (b) neither the Third Party Lessor nor Landlord is in default
under such Third Party Lease and, to the best of the Third Party Lessor's
knowledge, no facts or circumstances exist that, with the passage of time or the
giving of notice or both, would constitute a default under the Third Party Lease
by the Third Party Lessor or Landlord (or, if there have been any defaults or
potential defaults, specifying the nature of any such default or potential
default); (c) Landlord has paid all rent to date; (d) any then-ascertainable
date relevant to the Third Party Lease; and (e) such other matters as Tenant
shall reasonably request.
1.98 Third Party Lease Spread. The term "Third Party Lease
Spread" means an amount equal to the difference between (a) the Original Term
Rent Allocation (as defined in Section 22.2.2) with respect to a Property
subject to a Third Party Lease and (b) the rental due
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and payable by Landlord to the Third Party Lessor of such Property immediately
prior to the expiration of the term of such Third Party Lease.
1.99 Third Party Lease Renewal Option. The term "Third Party
Lease Renewal Option" means any right to extend and renew a Third Party Lease
for a renewal term.
1.100 Third Party Lessor. The term "Third Party Lessor" means
a Person who owns a Property and leases it to Landlord or an Affiliate and/or
Subsidiary of Landlord.
1.101 Trade Equipment. The term "Trade Equipment" means all
furniture, furnishings, trade fixtures and equipment installed or used on the
Premises by Tenant or any Subtenant from time to time during the Term, other
than those which may be owned by a Third Party Lessor.
1.102 Transfer Tax Agreement. The term "Transfer Tax
Agreement" means that certain Tax Indemnity Agreement between Landlord and
Tenant dated as of the date hereof.
1.103 Unavoidable Delay. The term "Unavoidable Delay" means a
delay in the performance of any obligation under this Restated Lease (excluding
in any case any obligation to pay money) arising from or on account of any cause
whatsoever beyond the reasonable control of the person required to perform,
including strikes, labor troubles, litigation, Casualty, Condemnation,
accidents, Laws, governmental preemption, war, riots, and other causes beyond
such party's reasonable control, whether similar to or dissimilar to the causes
specifically enumerated in this Section. In no event shall Unavoidable Delay be
deemed to include any delay caused by a Person's financial condition.
1.104 Uneconomic. The term "Uneconomic" means the cost to cure
an Eligible Legal Violation is not economically practicable, given the business
being conducted at a particular Property and the cost of curing such violation.
1.105 Use Restriction Event. The term "Use Restriction Event"
means, with respect to a Property, the date when, (a) as a result of the
enactment of a final, non-appealable change in Law, the use of such Property as
of the Restatement Effective Date as a Service Station Property or a Petroleum
Terminal Property, as applicable, is no longer permitted; (b) as a result of any
non-appealable action by the Government, Tenant is no longer able to use the
Property for its use as of the Restatement Effective Date, provided that (i)
such action by the Government did not result, either directly or indirectly,
from the acts or omissions of Tenant, Subtenant or their respective agents,
contractors, employees, licensees or invitees, (ii) such action of the
Government was not a Law enforcement or violation related action and was more in
the nature of a change in zoning or a Condemnation-like action, and (iii) such
action of the Government was unrelated to Environmental Laws; or (c) as a result
of any non-appealable or unappealable (by Landlord or Tenant) action by
Government access to such Property is materially denied to Tenant or Tenant's
customers or invitees. Anything contained in the foregoing sentence to the
contrary notwithstanding, a "Use Restriction Event" shall not be deemed to occur
in the event that the use of any such Property as of the Restatement Effective
Date is or becomes a permissible non-conforming use under applicable Law such
that Tenant is not permitted to
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rebuild or reconstruct such Property for its current use as of the Restatement
Effective Date after the occurrence of a Casualty or Condemnation.
1.106 UST. The term "UST" means an underground storage tank
including related piping, underground pumps, wiring and their monitoring
devices. The term "USTs" shall have the correlative plural meaning.
1.107 UST Upgrade. The term "UST Upgrade" means the replacing,
upgrading or closure of UST systems (tanks and connective piping) in accordance
with 40 C.F.R. Part 280 or similar Government requirements in effect on the
Commencement Date of the 1997 Master Lease.
1.108 Waiver of Subrogation. The term "Waiver of Subrogation"
means a provision in, or endorsement to, any insurance policy required by this
Restated Lease, by which the insurance carrier agrees to waive all rights of
recovery by way of subrogation against either party to this Restated Lease in
connection with any loss covered by such insurance policy.
2. TERM.
2.1 Initial Term and Renewal Term(s). The initial term of this
Restated Lease (the "Initial Term") shall commence on the Restatement Effective
Date. The Initial Term shall end immediately prior to the fifteenth (15th)
anniversary of the Restatement Effective Date. Except as provided or otherwise
set forth to the contrary in Article 22, Tenant shall have the absolute and
unconditional right and option (each such right and option, a "Renewal Option")
to extend and renew this Restated Lease as to all but not less than all of the
Properties then demised by this Restated Lease at the time of such extension and
renewal upon the same terms and conditions (except to the extent Rent may be
adjusted as required hereunder) as this Restated Lease, for four (4) additional
successive periods, with the first three (3) being of ten (10) years each and
the last one being of three (3) years and ten (10) months (each such renewal
period, a "Renewal Term") following expiration of the Initial Term. Tenant shall
exercise each Renewal Option, if at all, by giving Landlord Notice thereof (in
compliance with this Restated Lease) at least thirteen (13) months before the
first day of the corresponding Renewal Term. Wherever this Restated Lease refers
to the "Term," such reference means the Initial Term as extended from time to
time, pursuant to Tenant's Renewal Option(s), to include one or more Renewal
Term(s), so that upon Tenant's exercise of any Renewal Option(s), the "Term"
shall include the corresponding Renewal Term. At the expiration or termination
of the final Renewal Term provided for below, Tenant shall have no further
rights to renew or extend this Restated Lease. The Renewal Options and Renewal
Terms are as follows:
2.1.1 First Renewal Term. The "First Renewal Term"
shall be for a period of ten (10) years beginning on the
fifteenth (15th) anniversary of the Restatement Effective Date
and ending immediately prior to the twenty-fifth (25th)
anniversary of the Restatement Effective Date.
2.1.2 Second Renewal Term. The second Renewal Term
shall be for a period of ten (10) years beginning on the
twenty-fifth (25th) anniversary of the
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Restatement Effective Date and ending immediately prior to the
thirty-fifth (35th) anniversary of the Restatement Effective
Date.
2.1.3 Third Renewal Term. The third Renewal Term
shall be for a period of ten (10) years beginning on the
thirty-fifth (35th) anniversary of the Restatement Effective
Date and ending immediately prior to the forty-fifth (45th)
anniversary of the Restatement Effective Date.
2.1.4 Fourth Renewal Term. The fourth and final
Renewal Term shall be for a period of three (3) years and ten
(10) months, beginning on the forty-fifth (45th) anniversary
of the Restatement Effective Date and ending immediately prior
to the forty-eighth (48th) and ten (10) month anniversary of
the Restatement Effective Date.
2.2 Default by Tenant. Provided only that this Restated Lease
has not been terminated and that no uncured Material Monetary Event of Default
then exists hereunder, there shall be no conditions (express or implied) to
Tenant's exercise of any Renewal Option(s) for the Premises (except as set forth
in Article 22 at it pertains to Third Party Leases).
2.3 Title to Tenant. Improvements and Personal Property.
Notwithstanding anything to the contrary in this Restated Lease, all Tenant
Improvements and all Personal Property owned by Tenant located in, on or at any
Property or otherwise constituting part of the Premises shall at all times
during the Term be owned by, and shall belong to, Tenant. All the benefits and
burdens of ownership of the foregoing shall be and remain in Tenant during the
Term.
3. RENT.
3.1 Fixed Rent. Throughout the Initial Term and all Renewal
Terms, Tenant shall pay Landlord, without notice or demand, in lawful money of
the United States of America, at Landlord's office or as Landlord shall
otherwise designate, a net annual rental (the "Fixed Rent") as follows:
3.1.1 Calculation of Fixed Rent. During the first
Lease Year, Fixed Rent shall be $57,706,272 (or $4,808,856 per
month), as adjusted pursuant to this Article. The Fixed Rent
during the Initial Term and all Renewal Terms shall be
adjusted in accordance with the Fixed Rent Adjustment
Procedures at the time that any Property may be deleted from
this Restated Lease (a) pursuant to the express provisions of
Article 13, 14, 15, 22 or 25 of this Restated Lease; or (b) by
the mutual agreement of the parties hereto.
3.1.2 Rent Escalations. At the beginning of each
Lease Year commencing after the first Lease Year, the Fixed
Rent for such Lease Year shall be increased by an amount equal
to two percent (2%) of the Fixed Rent in effect at the end of
the immediately preceding Lease Year, after giving effect to
any adjustment to such Fixed Rent required under Section
3.1.1.
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3.2 Payment; Proration; Etc. Tenant shall pay Fixed Rent in
equal monthly installments in advance on the first day of each month. Rent for
partial months at the beginning or end of the Term shall be prorated based on
the number of days in such month within the Term divided by the total number of
days in the entire month. Tenant shall pay all Rent payable to Landlord by wire
transfer of currently available federal funds to Landlord's bank account as
designated by Landlord.
3.3 Additional Rent. In addition to Fixed Rent, Tenant shall
pay Landlord, as additional rent under this Restated Lease, all Additional Rent
within twenty (20) days after receipt of invoice therefor or as otherwise set
forth in Article 4.
3.4 No Allocation to Personal Property; Allocation to Royalty
Fee. None of the Rent provided for under this Restated Lease is allocable to any
personal property included in the Premises. Notwithstanding anything to the
contrary contained herein or in the License Agreement, a sum equal to Two
Million Dollars ($2,000,000) (as escalated pursuant to the provisions of Section
3.1.2 above) of the Fixed Rent payable hereunder per Lease Year shall be deemed
to constitute payment for the granting by Landlord to Tenant of an exclusive
license to use the Licensed Marks (as defined in the License Agreement) on the
terms and conditions set forth in the License Agreement (such annual payment
being referred to herein as the "Royalty Fee"). Notwithstanding the foregoing,
if the License Agreement terminates for any reason during the Term, then the
amount of Fixed Rent payable hereunder per annum shall be deemed to be increased
by an amount equal to the Royalty Fee that would have been payable had the
License Agreement not terminated. The net effect of the foregoing is that the
amount paid by Tenant to Landlord under Section 3.1 shall not be affected by the
termination of the License Agreement.
3.5 Offsets. Except as specifically provided in Section 31.1
hereof and except as provided below, Tenant shall pay all Rent without offset,
defense, claim, counterclaim, reduction, deduction, or exercise of recoupment
rights of any kind whatsoever. Notwithstanding anything to the contrary in this
Restated Lease, Tenant shall be entitled to offset against Rent an amount equal
to any of the following obligations required to be performed by Landlord (a)
except as otherwise provided in clause (b), to the extent Landlord fails to
perform any such obligation within thirty (30) days after Tenant shall have
delivered to Landlord a Notice describing such failure in reasonable detail; or
(b) in the case of a failure that cannot with due diligence be cured within
thirty (30) days from such Notice, to the extent that Landlord does not (x)
within 30 days from Tenant's Notice advise Tenant of Landlord's intention to
take all reasonable steps necessary to remedy such failure, (y) duly commence
the cure of such failure within such period, and then diligently prosecute to
completion the remedy of such failure and (z) complete such remedy within a
reasonable time under the circumstances.
3.5.1 Landlord's UST Upgrade obligation pursuant to
Section 7.6 at the Properties set forth in Schedule 2, to the
extent Tenant is required to expend monies therefor;
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3.5.2 Landlord's obligation pursuant to Section 9.1
with respect to (a) the ongoing Remediation at the Properties
set forth on Schedule 3 and (b) any Remediation required as a
result of any Contamination resulting from UST Upgrades at the
Properties set forth on Schedule 2 and Exhibit C, to the
extent Tenant is required to expend monies therefor; and
3.5.3 Landlord's obligation pursuant to the
Environmental Agreement, to the extent Tenant is required to
expend monies therefor.
Notwithstanding anything to the contrary contained herein or in the
Environmental Agreement, if, at any time after the date hereof, UST Upgrade or
Closure has been completed, as applicable, with respect to any Property set
forth on Schedule 2, Exhibit C or Schedule 3 by Landlord as required under this
Restated Lease, Tenant shall have no right to any offset against Rent with
respect to any such Property from and after the date on which such UST Upgrade
or Closure has been completed, as applicable, with respect to such Property. In
the event that Tenant elects to offset any amount against Rent in accordance
with this Section 3.5 or Section 31.1, Tenant shall give Landlord Notice of such
election to offset at least twenty (20) days prior to effecting the same, which
Notice shall include the amount that Tenant plans to offset and the timing of
such offset.
4. ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS.
4.1 Landlord's Net Return. The parties intend that this
Restated Lease shall constitute a "net lease," so that the Rent shall provide
Landlord with "net" return for the Term, free of any expenses or charges with
respect to the Premises, except as specifically provided in this Restated Lease.
Accordingly, except as specifically set forth to the contrary in this Restated
Lease, the Environmental Agreement or the Transfer Tax Agreement, Tenant shall
pay as Additional Rent and discharge, before failure to pay the same shall
create a material risk of forfeiture or give rise to a penalty, each and every
item of expense, of every kind and nature whatsoever, related to or arising from
the Premises, or by reason of or in any manner connected with or arising from
the development, leasing, operation, management, maintenance, repair, use or
occupancy of the Premises or any Property or any portion thereof.
Notwithstanding anything to the contrary in this Restated Lease, Tenant shall
not be required to pay any of the following incurred by Landlord: (a) principal,
interest, or other charges payable under any Fee Mortgage; (b) depreciation,
amortization, brokerage commissions, financing or refinancing costs, management
fees or leasing expenses incurred by Landlord with respect to any Property; (c)
consulting, overhead, travel, legal, staff, and other similar costs incidental
to Landlord's ownership of its fee or leasehold interest in any Property, other
than Legal Costs that Tenant has expressly agreed to pay; (d) any costs arising
from or pursuant to any instrument or agreement affecting any Property that is
not a Permitted Exception and to which Landlord is a party and Tenant is not a
party; and (e) the obligations of Landlord set forth in Section 7.6 and Section
9.1 of this Restated Lease, in the Environmental Agreement, or in the Transfer
Tax Agreement.
4.2 Impositions. Subject to Tenant's right to contest set
forth in Section 11.1, for any period within the Term (with daily prorations for
periods partially within the Term and
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partially outside the Term), Tenant shall pay and discharge all Real Estate
Taxes pursuant to the procedures set forth in Section 4.4 or Section 4.5 and
shall pay and discharge, before failure to pay the same shall create a material
risk of forfeiture or give rise to a penalty, all other Impositions. Tenant
shall pay all interest and penalties assessed by any Government on account of
late payment of any Real Estate Taxes, unless such late payment was caused by
(a) Landlord's failure to promptly forward to Tenant or Depository, as
applicable, a copy of any tax or other bill related to any such Real Estate Tax
received by Landlord or (b) Landlord's failure to timely pay any such Real
Estate Tax after it has timely received Tenant's or Depository's payment with
respect thereto as provided in Section 4.4 or 4.5, in which case Landlord shall
pay such interest and penalties. Except as otherwise provided herein, Tenant
shall also pay interest and penalties assessed by any Government on account of
late payment of any other Imposition (paid to Landlord by Tenant), except late
payment caused by Landlord's failure to remit any such Imposition in accordance
with Tenant's reasonable instructions or Landlord's failure to promptly forward
Tenant a copy of any tax or other bill related to any such Imposition received
by Landlord, in which case Landlord shall pay such interest and penalties.
Tenant shall within a reasonable time after Notice from Landlord provide
Landlord with reasonable proof that Tenant has paid or escrowed, as applicable,
any Imposition(s) that this Restated Lease requires Tenant to have paid or
escrowed, as applicable. Landlord shall be entitled to any refund of any
Impositions (and penalties and interest paid by Landlord) and interest earned
thereon to the extent such Imposition was due and payable prior to the
applicable Commencement Date based on Landlord's prior overpayment of such
Imposition, and Tenant shall remit to Landlord any amounts received by Tenant on
account of such overpayment promptly upon receipt of the same. Tenant shall be
entitled to any refund of any Impositions (and penalties and interest paid by
Tenant) and interest earned thereon to the extent such Imposition was due and
payable on or after the applicable Commencement Date based upon Tenant's prior
overpayment of such Imposition, whether such refund is made during or after the
Term, and Landlord shall remit to Tenant any amounts received by Landlord on
account of such overpayment promptly upon receipt of the same.
4.3 Assessments in Installments. To the extent that it may be
permitted by applicable Law and by the applicable Third Party Lease, Tenant
shall have the right to apply for conversion of any Imposition to cause it to be
payable in installments. After any such conversion, Tenant shall pay and
discharge only such installments of any such Impositions as shall become due and
payable during the Term, provided that any payment relating to periods prior to
the expiration of this Restated Lease shall be paid prior to the Termination
Date.
4.4 Deposits for Real Estate Taxes.
4.4.1 Advanced Real Estate Tax Payments. Due to the
number of properties demised by this Restated Lease, Real
Estate Taxes will be due and payable with respect to at least
one Property during each calendar month of each Lease Year. In
order to assure the timely payment of all Real Estate Taxes,
Tenant shall deposit with Landlord on the first day of each
calendar month during the Term a sum equal to the amount of
Real Estate Taxes due and payable in the next calendar month
(such sum being referred to hereinafter as the "Monthly Tax
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Payment"). The amount of each Monthly Tax Payment shall be
determined by reference to the Monthly Tax Payment for the
corresponding calendar month of the previous Lease Year, as
adjusted to reflect any reassessment, tax increase or change
of due date therefor of which Tenant has received Notice from
Landlord at least twenty (20) days prior to the date on which
such Monthly Tax Payment is due and payable. For the first
Lease Year, the amount of Monthly Tax Payment shall be
determined by reference to Schedule 10, as adjusted to reflect
any reassessment, tax increase or change of due date therefor
of which Tenant has received Notice from Landlord at least
twenty (20) days prior to the date on which such Monthly Tax
Payment is due. In addition, on or prior to the Restatement
Effective Date, Tenant shall deposit with the Landlord a sum
of money equal to the amount of Real Estate Taxes due in the
calendar month in which the Restatement Effective Date occurs
and the following calendar month, as determined by reference
to Schedule 10, as adjusted to reflect any reassessment, tax
increase or change of due date therefor of which Tenant has
received Notice from Landlord at least twenty (20) days prior
to the Restatement Effective Date. Notwithstanding the
foregoing, if Tenant does not receive any Notice of adjustment
from Landlord with respect to a Monthly Tax Payment referred
to in this Section at least twenty (20) days prior to the date
on which such Monthly Tax Payment is due, then Tenant shall,
within twenty (20) days after receipt of such Notice of
adjustment from Landlord, deposit with Landlord such
additional funds as may be required under such Notice. By way
of example, if the Restatement Effective Date occurs on
January 12, 2001, then Tenant shall deposit with Landlord on
such date an amount equal to the Real Estate Taxes due during
the months of January and February of such year, as determined
by reference to Schedule 10, as adjusted pursuant to the
preceding provisions. On February 1, 2001, Tenant shall
deposit with Landlord an amount equal to the Real Estate Taxes
due in the month of March of such year, as so adjusted, and so
on throughout the Term of this Restated Lease. Notwithstanding
the foregoing or anything else to the contrary contained
herein, if the funds deposited pursuant to the preceding
provisions are insufficient to pay any Real Estate Tax at
least twenty (20) days before such Real Estate Tax is due and
payable without penalty or interest, Tenant shall, within
twenty (20) days after receipt of demand therefor from
Landlord, deposit with Landlord such additional funds as may
be necessary to pay any such Real Estate Tax in full. If the
Monthly Tax Payment so deposited pursuant to this Section
exceeds the amount required to pay the Real Estate Taxes due
and payable for any month, the excess shall be credited
against the Monthly Tax Payment next due and payable.
4.4.2 Expiration or Termination. Notwithstanding
anything to the contrary contained in Section 4.4.1, if this
Restated Lease shall expire before any credit referred to in
Section 4.4.1 shall have been fully applied, Landlord (a)
shall retain an amount sufficient to pay unpaid Real Estate
Taxes to the extent such Real Estate Taxes accrue with respect
to any period of time during the Term and (b) shall refund to
Tenant the balance of such credit within thirty (30) days
after
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the end of the Term. Notwithstanding the foregoing, if this
Restated Lease shall have terminated as a result of a Material
Monetary Event of Default, then all amounts held by Landlord
pursuant to this Section 4.4 shall belong to Landlord, which
amounts shall be used by Landlord only to pay Real Estate
Taxes that would have accrued if this Restated Lease had not
terminated as a result of such Material Monetary Event of
Default. If a Property is deleted from this Restated Lease
pursuant to the express terms of this Lease (a) pursuant to
the express provisions of Article 13, 14, 15, 22 or 25; or (b)
by the mutual agreement of the parties hereto, then the amount
required to be deposited by Tenant pursuant to this Section
4.4 shall thereupon be reduced by an amount equal to the Real
Estate Taxes attributable to the Property so deleted, but
Tenant shall remain liable for all such Real Estate Taxes
which accrued prior to the date of such deletion.
4.5 Leasehold Mortgage Real Estate Tax Deposits. Anything
contained in the foregoing provisions of this Article notwithstanding, if any
procedures with respect to deposits for Real Estate Taxes set forth in a
Permitted Leasehold Mortgage shall be inconsistent with any of the procedures
set forth in this Article or if such Permitted Leasehold Mortgage requires the
establishment of a traditional tax escrow whereby Tenant pays into such escrow
an amount equal to one-twelfth of the Real Estate Taxes due in a particular
Lease Year on a monthly basis, then, to such extent, the procedures set forth in
such Permitted Leasehold Mortgage shall take precedence over, and shall be in
lieu of, the inconsistent procedures set forth in this Restated Lease, except as
otherwise set forth in this Section. Any such Permitted Leasehold Mortgage may
provide that deposits for Real Estate Taxes shall be paid by Tenant to either
(a) Landlord or (b) Depository. In order for deposits for Real Estate Taxes to
be paid by Tenant to Depository, Depository must have previously entered into a
depository agreement with Landlord pursuant to which Depository agrees (i) to
hold all amounts deposited with Depository pursuant to this Section 4.5 in a
segregated, interest-bearing escrow account (which interest may be distributed
to Tenant on a quarterly basis, provided that no uncured Material Monetary Event
of Default then exists hereunder) in the name of Tenant (so as not to be
considered an asset of Depository) for the sole purpose of paying the Real
Estate Taxes for which such amounts shall have been deposited as the same become
due; (ii) to remit to Landlord the aforesaid deposits for such purpose not later
than twenty (20) days prior to the last day on which such Real Estate Taxes may
be paid without penalty or interest; (iii) that in no event shall any amount
deposited with Depository hereunder be deemed to constitute additional security
for any amounts that may be owed by Tenant or any Affiliate or Subsidiary of
Tenant to Leasehold Mortgagee or any Affiliate or Subsidiary of Leasehold
Mortgagee or any other Person, (iv) to otherwise be bound by the provisions of
this Restated Lease, including, without limitation, this Section 4.5.
Notwithstanding clause (ii) of the foregoing sentence, such Permitted Leasehold
Mortgage may provide that Depository will pay Real Estate Taxes directly to the
appropriate taxing authority rather than remitting the same to Landlord pursuant
to this Section 4.5. If such Permitted Leasehold Mortgage provides that
Depository will pay Real Estate Taxes directly to the appropriate taxing
authority, then Tenant shall (x) use commercially reasonable efforts to obtain
and furnish to Landlord proof, reasonably satisfactory to Landlord, of payment
by Depository of Real Estate Taxes and (y) furnish to Landlord copies of any
checks that Tenant sends to Depository on account of Real Estate Taxes or other
evidence of payment thereof, except to the
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extent that a lockbox or similar arrangement is then in effect such that such
amounts are automatically deposited with Depository.
4.6 Direct Payment by Landlord. If any Imposition or other
item of Rent is required to be paid directly by Landlord, then Landlord shall
appoint as Landlord's attorney in fact (1) Depository for the purpose of making
any such payment of Real Estate Taxes if Depository is entitled to make such
payments directly pursuant to the provisions of Section 4.5, and (2) Tenant for
the purpose of making any such payment of any other Imposition or other item of
Rent. Notwithstanding the foregoing, if the person entitled to receive such
payment refuses to accept it from Depository or Tenant, as applicable, then
Depository or Tenant, as applicable, shall give Landlord Notice of such fact and
shall remit payment of such Imposition or other item of Rent to Landlord in a
timely manner accompanied by reasonable instructions as to the further
remittance of such payment. Landlord shall with reasonable promptness comply
with the Depository's or Tenant's, as applicable, reasonable instructions and
shall Indemnify Depository or Tenant, as applicable, against Landlord's failure
to do so.
4.7 Tax Lots. In the event that any Property does not
constitute a single parcel separate and apart from any other land for the
purpose of Real Estate Taxes, Landlord shall use its reasonable best efforts to
allocate such Real Estate Taxes on an equitable basis between or among the
occupants or users of the parcel that contains such Property, unless such
allocation has been made by a Third Party Lessor.
4.8 Utilities. Tenant shall pay all fuel, gas, light, power,
water, sewage, garbage disposal, telephone and other utility charges, and the
expenses of installation, maintenance, use and service in connection with the
foregoing, relating to the Premises during the Term.
5. USE.
Tenant may use each Property demised hereunder for a gasoline service
station/convenience store, for the storage and distribution of petroleum
products, and/or for any other lawful purpose, including without limitation, any
use that may exist on any such Property as of the Restatement Effective Date,
subject to any restrictions contained in a Third Party Lease. In using the
Premises, Tenant shall comply, in all material respects, with all restrictions
and mandates set forth in the Permitted Exceptions and the Third Party Leases,
where applicable. Notwithstanding the foregoing, to the extent that any failure
to fully comply in all respects with a restriction or mandate set forth in a
Third Party Lease would cause a default to occur under such Third Party Lease,
Tenant shall fully comply with such restriction or mandate, except as
specifically provided in Section 25.2. Tenant shall not have any obligation to
actually operate any Property or otherwise conduct business of any nature
thereon, and Tenant may discontinue operation of any Property at any time or
from time to time, except as may be required under a Third Party Lease. Landlord
shall in no event declare that Tenant has committed a Default under this Article
of this Restated Lease by reason of Tenant continuing to use such Property in
the same manner as such Property is being used on the Restatement Effective
Date. Notwithstanding the foregoing, nothing contained herein shall be deemed to
in any way affect Landlord's right to
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declare that Tenant has committed a Default hereunder to the extent that, as a
result of a change in Law subsequent to the Restatement Effective Date, Tenant's
then current use of any Property becomes unlawful, and Tenant continues to
operate such Property for such use after such change in Law becomes effective.
6. COMPLIANCE WITH LAW.
Except as otherwise expressly set forth in Section 7.6, Section 9.1,
Article 25 and the Environmental Agreement, Tenant shall during the Term, at
Tenant's expense: (a) observe and comply with all Laws affecting each Property
in all material respects; (b) procure every material permit, license,
certificate or other authorization required in connection with the lawful and
proper maintenance, operation, use and occupancy of each Property or required in
connection with any Construction Work or Improvements erected thereon; and (c)
comply with all such permits, licenses, certificates and other authorizations in
all material respects. Notwithstanding the foregoing, Tenant shall have the
right to contest any such Laws in accordance with this Restated Lease.
7. MAINTENANCE AND ALTERATIONS.
7.1 Obligation to Maintain. During the Term, Tenant shall,
except as otherwise expressly provided in this Restated Lease, keep and maintain
the Premises and each Property in good order, condition and repair in all
material respects, subject to Casualty and Condemnation (governed by separate
applicable provisions of this Restated Lease), reasonable wear and tear, and any
other conditions that this Restated Lease does not require Tenant to repair.
Tenant's obligations to maintain the Premises in the manner set forth in the
preceding sentence shall extend to all repairs that any Property (including
plumbing, heating, air conditioning, ventilating, electrical, lighting, walls,
roof, foundations, ceilings, floors, windows, doors, plate glass, skylights,
landscaping, driveways, parking lots, fences and signs located in, on or at such
Property, together with any sidewalks adjacent to such Property) may require
from time to time during the Term, whether structural or nonstructural, foreseen
or unforeseen, including such repairs as may be required by conditions in
existence at the Commencement Date, except as otherwise provided in the
Environmental Agreement and in Section 25.2, and those Tenant is obligated to
perform under Section 7.6.
7.2 Tenant's Right to Perform Alterations. Tenant shall have
the right, at Tenant's sole cost and expense and subject to the provisions of
any Third Party Lease, at any time and from time to time during the Term of this
Restated Lease, to construct, alter, repair, remodel and/or replace any and all
Improvements on any Property and to demolish, raze or otherwise remove the same,
provided that, unless Landlord consents, which consent shall not be unreasonably
withheld, conditioned or delayed, Tenant shall be obligated to rebuild
Improvements at such Property (a) at least equal in value to the amortized or
depreciated cost of the Improvements so demolished, razed, or removed, as such
amortized or depreciated cost is set forth on the most recent financial
statements of Landlord then available; and (b) of the same type, nature and
quality as those that have been demolished, removed, or razed, unless Tenant's
decision to rebuild on such Property Improvements of a different type, nature or
quality is
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commercially reasonable under the circumstances. Except as provided in the
immediately preceding sentence, Tenant shall not be obligated to re-erect any
outbuildings, recreational facilities, service buildings, maintenance sheds or
the like which are not material to the use and operation of such Property. All
Tenant Improvements shall be and remain the property of Tenant throughout the
Term and Tenant shall retain all rights to depreciation and/or amortization
deductions and tax credits arising from ownership thereof. Such Tenant
Improvements (subject to the reversionary interest of Landlord, the Power Test
Lessor, and/or the Third Party Lessors therein) shall be considered a part of
Tenant's Leasehold Estate for purposes of Articles 13 and 14. However, upon the
Termination Date, title to such Tenant Improvements shall be deemed to be and
become part of the realty and the sole and absolute property of Landlord (or the
applicable Third Party Lessor or the Power Test Lessor, as the case may be) as
of the Termination Date and shall be surrendered to Landlord at that time, free
and clear of the liens of mortgages, deeds of trust, liens of mechanics,
laborers or materialmen, and all other liens and encumbrances other than (a) any
such liens and encumbrances incurred by Landlord arising from Landlord's actions
or the actions of any Third Party Lessor or the Power Test Lessor and (b) any
easements or similar rights burdening such Tenant Improvements the creation of
which Landlord or the Power Test Lessor shall have consented to in writing. Upon
an early termination of this Restated Lease, if Leasehold Mortgagee exercises
its right to obtain a new lease and obtains such new lease pursuant to the
provisions of Section 26.6 hereof, then title to such Tenant Improvements shall
not vest in Landlord if a new lease is given to a Permitted Leasehold Mortgagee
(or its nominee or designee) as provided for in Section 26.6, but shall vest in
Leasehold Mortgagee (or its nominee or designee), and its successors and assigns
as tenant permitted hereunder, who shall have the right to depreciation and/or
amortization deductions and tax credits arising from ownership of such Tenant
Improvements but title to such Tenant Improvements shall vest in Landlord upon
termination of such new lease. Tenant shall perform all Construction Work in a
good, professional, safe, and workmanlike manner, using licensed and insured
contractors and otherwise in compliance with Law.
7.3 Plans and Specifications. To the extent that Tenant
performs or causes to be performed any Construction Work and obtains plans and
specifications or surveys (including working plans and specifications and
"as-built" plans and specifications and surveys) for such Construction Work,
Tenant shall promptly upon Landlord's request provide Landlord, for Landlord's
information only, with a true and complete copy of such plans and
specification(s) or survey(s), subject to the terms of any agreement between
Tenant and the applicable outside architect, engineer or surveyor. Tenant shall
exercise reasonable efforts to cause its agreements with such outside
professionals to permit the deliveries described in this Section.
7.4 Excavations. If an excavation shall be made (or
authorized) upon land adjacent to the Land, then at Tenant's election Tenant
shall either: (a) afford to the person causing or authorized to cause such
excavation, license to enter the applicable Property, in accordance with
Tenant's reasonable instructions, to perform such work as such person shall
reasonably deem necessary or desirable, and as Tenant shall reasonably approve,
to preserve and protect the applicable Property from injury or damage and to
support the same by proper foundations, or (b) perform or cause to be performed,
without cost or expense to Landlord in its capacity as Landlord under this
Restated Lease, work of the nature described in clause (a) to the
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extent reasonably necessary under the circumstances. Tenant shall not, by reason
of any excavations or work described in this Section, have any claim against
Landlord in its capacity as Landlord under this Restated Lease for damages or
for indemnity or for suspension, diminution, abatement or reduction of any Rent
or any claim against the owner of any Fee Estate subject to a Third Party Lease
or a Power Test Lease with respect to the same.
7.5 Cooperation by Landlord. Upon Tenant's request, subject to
the provisions of any Permitted Exception, or any Third Party Lease, Landlord
shall, without cost to Landlord, promptly join in and execute and cause the
Power Test Lessor to join in and execute (or assist Tenant in obtaining the
requisite consent of a Third Party Lessor) any instruments including, but not
limited to, applications for building permits, demolition permits, alteration
permits, consents, zoning, rezoning or use approvals, amendments and variances,
easements, encumbrances, and/or liens (excluding Mortgages) against any Property
(Fee Estate and Leasehold Estate), and such other instruments as Tenant may from
time to time request in connection with Construction Work or to enable Tenant
from time to time to use and operate the Premises in accordance with this
Restated Lease, provided each of the foregoing is in reasonable and customary
form and does not cause the Fee Estate or Landlord's leasehold interest in any
Fee Estate owned by a Third Party Lessor or the Power Test Lessor to be
encumbered as security for any obligation and does not otherwise expose the Fee
Estate or Landlord's leasehold interest in any Fee Estate owned by a Third Party
Lessor or the Power Test Lessor to any material risk of forfeiture during or
after the Term or any liens, encumbrances or easements subsequent to Term.
Tenant shall reimburse Landlord's Legal Costs and all other actual out-of-pocket
costs incurred by Landlord in performing under this Section.
7.6 USTs. Landlord shall complete UST Upgrades for each of the
USTs at the Properties set forth on Schedule 2 and, to the extent required by
Law, the Property set forth on Exhibit C. Tenant shall be responsible for all
repair, maintenance, replacement and removal of all USTs listed on Schedule 2
for which UST Upgrades have been completed and all other USTs at the Premises,
except Tenant shall not be responsible for the removal or closure in place of
the USTs at the Property set forth on Exhibit C. At the time that an UST Upgrade
is completed at a particular Property set forth in Schedule 2 and Exhibit C,
except for Landlord's obligations under Section 9.1 to Remediate, if any,
Landlord shall no longer have any responsibility or obligation with respect to
such UST and Tenant shall be solely responsible therefor. In the event that
Tenant exercises the Renewal Option in the First Renewal Term for the Premises
pursuant to the express provision of Section 2.1, on or before the first day of
such First Renewal Term, Landlord shall by a Bill of Sale (containing a
representation by Landlord that it has complied with its UST Upgrade obligations
under this Restated Lease) transfer the USTs under the Properties listed on
Exhibit C (to the extent such USTs have not already been removed from such
Properties) and Schedule 2 to Tenant for nominal consideration, except the
foregoing shall not apply to any USTs owned by any Third Party Lessor.
8. PROHIBITED LIENS.
8.1 Tenant's Covenant. If at any time during the Term, whether
during the period of construction or reconstruction of buildings, or at any
other time, any Prohibited Liens
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shall be filed against any Property or any part thereof relating to work
authorized or approved by Tenant or Subtenant or their respective agents,
contractors, or employees in respect of such Property, Tenant shall, at its
expenses cause the same to be discharged, by payment, bonding or otherwise as
provided by Law, within forty-five (45) days after Tenant receives Notice from
Landlord that the Prohibited Lien was filed (but in any case within fifteen (15)
days after receipt of Notice from Landlord of commencement of foreclosure
proceedings), except for such liens that may have been incurred by Landlord
arising from Landlord's, a Third Party Lessor's or the Power Test Lessor's
actions. Nothing herein contained shall in any way prejudice the rights of
Tenant to contest to final judgment or decree any such Prohibited Lien prior to
payment thereof pursuant to the provisions of Article 11 hereof. The mere
existence of a Prohibited Lien shall not be construed as a Non-Material Default
under this Restated Lease unless Tenant fails to take action as aforesaid.
Should a Prohibited Lien be filed against the Premises or any Property as a
result of the actions of Landlord, or the Power Test Lessor, Landlord shall, at
its sole cost and expense, likewise cause such Prohibited Lien to be cleared of
record.
8.2 Protection of Landlord. Notice is hereby given that
Landlord shall not be liable for any labor or materials furnished or to be
furnished to Tenant upon credit, and that no mechanic's or other lien for any
such labor or materials shall attach to or affect the Fee Estate or Landlord's
leasehold interest in any Fee Estate subject to a Third Party Lease or a Power
Test Lease. Nothing in this Restated Lease shall be deemed or construed in any
way to constitute Landlord's consent or request, express or implied, by
inference or otherwise, to any contractor, subcontractor, laborer, equipment or
material supplier for the performance of any labor or the furnishing of any
materials or equipment for any improvement, alteration or repair of, or to, any
Property, or any part thereof , nor as giving Tenant any right, power or
authority to contract for, or permit the rendering of, any services, or the
furnishing of any materials that would give rise to the filing of any liens
against the Fee Estate or Landlord's leasehold interest in any Fee Estate
subject to a Third Party Lease or a Power Test Lease. Nothing contained in the
preceding sentence shall be deemed to require Landlord's consent to such
matters. Tenant shall Indemnify Landlord against any Construction Work performed
on any Property for or by Tenant, including any Prohibited Lien arising from
such Construction Work performed by or on behalf of Tenant or Subtenant or their
respective agents, contractors, or employees.
9. ENVIRONMENTAL MATTERS.
9.1 Landlord Remediation. Landlord shall, at Landlord's
expense, Remediate the Contamination at or emanating from the Properties set
forth on Schedule 3 and any Contamination resulting from the UST Upgrades at the
Properties set forth on Schedules 2 and Exhibit C. Landlord's obligation to
Remediate Contamination at any of the Properties on Schedule 2, Schedule 3 and
Exhibit C shall continue until Closure is obtained for the particular
Properties. Landlord shall be entitled to the benefit of any government
reimbursement funds that may be available for such Remediation of Contamination
by Landlord. Landlord or its agents shall control administrative efforts to
recover such reimbursement at Landlord's sole cost and expense.
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9.1.1 Negotiations. Landlord or its agents shall conduct
all negotiations with the Government for the Remediation of
the Contamination for which Landlord is responsible under
Section 9.1; provided, however, Tenant may attend, but not
actively participate in any such negotiations, and provided
further that Tenant may take such actions as may be necessary
to ensure that it can continue to operate the Property, such
actions to be at Tenant's sole cost and expense. Landlord
shall not negotiate Closure limits less stringent than
required by applicable Law. Tenant agrees that it shall not
independently negotiate with the Government in connection with
Landlord's Remediation of Contamination under Section 9.1.
Further, Tenant shall not negotiate Closure limits more
stringent than required by applicable Law. Landlord shall
provide Tenant with copies of any correspondence or documents
it provides to or receives from the Government relating to its
Remediation of Contamination under Section 9.1. Tenant shall
provide Landlord with copies of any correspondence or
documents it provides to or receives from the Government
relating to Landlord's Remediation of Contamination under
Section 9.1.
9.1.2 New Contamination. If New Contamination is
discovered at or emanating from any of the Properties being
Remediated by Landlord under Section 9.1, but prior to
Closure, Tenant shall make all reporting or notification
required by the Environmental Laws, shall promptly notify
Landlord, and shall act promptly to minimize the effects of
the New Contamination. If Landlord reasonably determines that
such New Contamination will make Landlord's Remediation at the
applicable Properties more expensive, more difficult or will
extend the time required to complete the Remediation, Landlord
and Tenant agree to secure promptly the services of an
environmental consultant (the "Environmental Consultant"),
mutually acceptable to Landlord and Tenant, who shall make an
assessment of the Contamination and New Contamination,
including the remaining cost to complete Landlord's
Remediation absent the New Contamination and an estimate of
the cost of the additional work that will be required due to
the New Contamination. Based upon this assessment, the
Environmental Consultant shall make an apportionment of the
costs and Tenant shall begin paying Landlord for the
additional expenses incurred by Landlord in remediating the
New Contamination. At Tenant's election, and with Landlord's
consent, which shall not be unreasonably withheld, Tenant may
assume the Remediation of the New Contamination. Further,
Landlord and Tenant may negotiate a transfer of the
Remediation responsibility for the Contamination and New
Contamination from Landlord to Tenant with the costs of such
Remediation continuing to be shared between Landlord and
Tenant as set forth in this Section. If such transfer of
Remediation responsibility is made, Tenant shall execute and
deliver to Landlord a release of Remediation liability for the
Contamination, and such release shall include an assignment to
Tenant of Landlord's rights to reimbursement from the state
reimbursement fund, if any for the applicable Property. Tenant
covenants to pay to Landlord within forty-five (45) days of
receipt of Notice from Landlord, with evidence of payment by
Landlord, all costs
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associated with Landlord's Remediation of the New
Contamination as Remediation work is performed and as invoices
for such work are presented to Landlord.
9.1.3 Access. Tenant shall provide for and permit
access, at no cost to Landlord, as Landlord and its employees,
agents, and contractors may require to each of the Properties
under Schedule 2, Schedule 3 and Exhibit C, as is required for
Landlord to meet all environmental obligations for Remediation
of Contamination or for UST Upgrades. Such access shall
include the right to conduct such tests, take such groundwater
or soil samples, excavate, remove, dispose of, and treat the
soil and groundwater, and undertake such other actions as are
necessary in the sole judgment of Landlord. Landlord shall
expeditiously remove from the applicable Property as soon as
reasonably practicable or as required by Environmental Law all
drums containing drill cuttings, soil, debris or liquids
generated from Landlord's Remediation or investigation
activities. Landlord shall restore the surface and existing
structures, if any, on the applicable Premises to a condition
substantially similar to that at the time immediately prior to
the action taken by Landlord and shall replace or repair
damage to Tenant's equipment and personal property on such
Property caused by Landlord or its contractors. Landlord
shall, to the extent practical, undertake the actions
necessary to complete its Remediation of Contamination in a
manner that will not unreasonably disrupt the operations of
Tenant on the applicable Property. In no event, however, shall
Landlord have liability to anyone, including Tenant, for
business disruption, lost profits, or consequential damages
arising from such actions or access. Landlord or its
contractors shall provide Tenant as much advance notice as
possible of all potentially disruptive or intrusive activities
to be taken on any of the applicable Properties. Such notice
may be in the form of a periodic schedule of activities. No
advance notice shall be required for non-disruptive
activities, such as periodic monitoring of wells. Landlord and
Tenant agree to cooperate on the placement and the location of
Landlord's Remediation equipment. Any cost or expense to
repair or replace monitoring and Remediation equipment
resulting from the acts or omissions of Tenant or Subtenant or
their respective employees, agents, licensees, invitees,
Subtenants and contractors shall be the responsibility of
Tenant.
9.1.4 Maintenance of Records. During the course of
Landlord's Remediation of Contamination at any of the
Properties on Schedule 2, Schedule 3, and Exhibit C, Tenant
shall maintain UST inventory and tank line maintenance records
for the applicable Premises as required to comply with the
Environmental Laws. Landlord shall have the right to review
these records as Landlord deems necessary so as to be assured
of the integrity of Tenant's UST system at the applicable
Properties.
9.2 Tenant Obligations. Except for those particular
obligations of Landlord set forth in Sections 7.6, 9.1 and 25.3 herein and set
forth in the Environmental Agreement,
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Tenant shall, except as provided in Section 25.3, be solely responsible, at its
own cost and expense, for compliance with all Environmental Laws applicable to
the Premises after the Commencement Date of the 1997 Master Lease. Tenant shall
be solely responsible, at its own cost and expense, for any Remediation required
by the applicable Government resulting from Remediation limits changed after
Closure has been completed at any of the Properties on Schedule 2, Schedule 3
and Exhibit C. The obligations of Tenant set forth in this Section 9.2 shall
survive the expiration or earlier termination of this Restated Lease.
10. INDEMNIFICATION; LIABILITY OF LANDLORD.
10.1 Mutual Indemnity Obligations. Landlord and Tenant shall
each Indemnify the other against: (a) any wrongful act, wrongful omission or
negligence of the Indemnitor (and, in the case of (i) Tenant, that of any of
Tenant's Subtenants, and Tenant's and any of their respective partners,
directors, officers, members, contractors, employees, agents, licensees and
invitees; and (ii) Landlord, that of the Power Test Lessor and their respective
partners, directors, officers, members, contractors, employees, agents,
licensees and invitees); and (b) any breach or Default by the Indemnitor under
this Restated Lease or the Environmental Agreement. In addition to and without
limiting the generality of the foregoing indemnity, Tenant shall Indemnify
Landlord and Realty Parent (and with respect to clause (y) below, Third Party
Lessors and the Power Test Lessor) against all the following matters (except to
the extent any claim arises from any wrongful act, wrongful omission or
negligence of Landlord, Realty Parent, any Third Party Lessor or the Power Test
Lessor) relating to: (t) any Remediation of New Contamination for which Tenant
is obligated pursuant to Section 9.1 and for breach of Tenant's obligations to
comply with Environmental Laws pursuant to Section 9.2; (u) the operation or
occupancy of any Property; (w) any Construction Work performed during the Term;
(x) the condition of any Property or any street, curb or sidewalk adjoining such
Property, whether or not such condition existed before the Restatement Effective
Date; or of any vaults, tunnels, passageways or space under, adjoining or
appurtenant to the Premises whether or not such condition existed before the
Restatement Effective Date; (y) any accident, injury or damage whatsoever caused
to any person or their property occurring during the Term, in or on the Premises
or upon or under the sidewalks adjoining such Property; and (z) any wrongful
termination of a Sublease. Notwithstanding the foregoing, Tenant shall have no
obligation to Indemnify Realty Parent if (a) a conflict of interest exists such
that the use of a single counsel to represent both Realty Parent and Landlord is
not advisable, (b) the claims and defenses available to Realty Parent and
Landlord with respect to any such claim are not substantially identical, and (c)
the inclusion of Realty Parent as an Indemnitee would cause Tenant to incur more
than a de minimis amount of additional cost or expense in discharging its
indemnification obligations pursuant to this Article. In addition, Landlord
shall Indemnify Tenant and Marketing Parent for (i) any UST Upgrade Landlord is
obligated to perform pursuant to Section 7.6, (ii) any Remediation of
Contamination for which Landlord is obligated under Section 9.1, and (iii) any
matter whatsoever relating to the Abandoned Properties, including, without
limitation, compliance with Environmental Laws. Notwithstanding the foregoing,
Landlord shall have no obligation to Indemnify Marketing Parent if (a) a
conflict of interest exists such that the use of a single counsel to represent
both Marketing Parent and Tenant is not advisable, (b) the claims and defenses
available to Marketing Parent and Tenant with respect to any such claim are not
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substantially identical, or (c) the inclusion of Marketing Parent as an
Indemnitee would cause Landlord to incur more than a de minimis amount of
additional cost or expense in discharging its indemnification obligations
pursuant to this Article. Notwithstanding anything to the contrary in this
Restated Lease, neither party shall be required to Indemnify the other party
from or against such other party's intentional acts or negligence.
10.2 Liability of Landlord. Except with respect to the
obligations of Landlord pursuant to the Environmental Agreement and Sections 7.6
and 9.1 hereof, Tenant shall be deemed to be in exclusive control and possession
of the Premises during the Term as provided in this Restated Lease. Landlord
shall not be liable for any injury or damage to any Property or to any Person
occurring on or about any Property nor for any injury or damage to any property
of Tenant, or of any other person, during the Term, unless caused by Landlord's
or the Power Test Lessor's wrongful acts and/or omissions or acts of negligence
or a breach of Landlord's obligations under this Restated Lease either by
Landlord or the Power Test Lessor or any of their respective agents, employees,
contractors, licensees or invitees. The provisions of this Restated Lease
permitting Landlord to enter and inspect any Property are intended to allow
Landlord to be informed as to whether Tenant is complying with the agreements,
terms, covenants and conditions of this Restated Lease, and to the extent
permitted by this Restated Lease, to perform such acts required by Landlord
under this Restated Lease and of Tenant if Tenant shall fail to perform. Such
provisions shall not be construed to impose upon Landlord any obligation,
liability or duty to third parties, but nothing in this Restated Lease shall be
construed to exculpate, relieve or Indemnify Landlord from or against any
obligation, liability or duty of Landlord to third parties existing at or before
the applicable Commencement Date or its obligations arising under Sections 7.6
or 9.1 hereof or the Environmental Agreement.
10.3 Indemnification Procedures. Wherever this Restated Lease
requires an Indemnitor to Indemnify an Indemnitee, the following procedures and
requirements shall apply:
10.3.1 Prompt Notice. The Indemnitee shall give the
Indemnitor prompt Notice of any claim. To the extent, and only
to the extent, that both (a) the Indemnitee fails to give
prompt Notice and (b) the Indemnitor is thereby prejudiced,
the Indemnitor shall, except as otherwise required under a
Third Party Lease, be relieved of its indemnity obligations
under this Restated Lease.
10.3.2 Selection of Counsel. The Indemnitor shall be
required to select counsel reasonably acceptable to the
Indemnitee. Counsel to the Indemnitor's insurance carrier
shall be deemed satisfactory. Indemnitee may have its own
counsel, at Indemnitee's expense, consult with Indemnitor's
counsel.
10.3.3 Settlement. The Indemnitor may, with the consent
of the Indemnitee, not to be unreasonably withheld, settle the
claim, except that no consent by the Indemnitee shall be
required as to any settlement by which (x) the Indemnitor
procures (by payment, settlement, or otherwise) a release of
the Indemnitee pursuant to which the Indemnitee is not
required to make any payment whatsoever to the claimant, (y)
neither the Indemnitee nor the Indemnitor acting
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on behalf of the Indemnitee makes any admission of liability,
and (z) the continued effectiveness of this Restated Lease is
not adversely affected in any material respect.
10.4 Insurance Proceeds. The Indemnitor's obligations shall be
reduced by net insurance proceeds actually collected by the Indemnitee on
account of the loss.
10.5 Survival. All indemnities set forth in this Restated
Lease shall survive the expiration or earlier termination of this Restated Lease
but each such indemnity shall in no event survive the earlier to occur of the
following: (a) the seventh (7th) anniversary of the Termination Date, and (b)
the date when the time period set forth in the statute of limitations applicable
to the subject matter of such indemnity has run.
11. RIGHT OF CONTEST.
11.1 Tenant's Right. Notwithstanding anything to the contrary
in this Restated Lease, and subject to the terms of Third Party Leases, Tenant
shall have the right to contest, at its sole expense, by appropriate legal
proceedings diligently conducted in good faith, the amount or validity of any
Imposition or Prohibited Lien; the valuation, assessment or reassessment
(whether proposed or final) of any Property for purposes of Real Estate Taxes;
the validity of any Law or Environmental Law or the application of any Law or
Environmental Law to any Property; or the validity or merit of any claim against
which Tenant is required to Indemnify Landlord under this Restated Lease (any of
the foregoing, a "Contest"). Tenant may defer payment of the contested
Imposition or compliance with the contested Law or performance of any other
contested obligation pending the outcome of the Contest, provided that such
deferral does not subject (a) the applicable Property or any portion thereof to
any risk of imminent forfeiture or foreclosure of any Fee Mortgage, or (b)
Landlord to any risk of criminal liability.
11.2 Landlord's Obligations and Protections. Landlord shall
not be required to join in any Contest unless a Law or Environmental Law shall
require that such Contest be brought in the name of Landlord or any owner of the
Fee Estate. In such case, Landlord shall cooperate with Tenant, as Tenant shall
reasonably request, so as to (a) permit such Contest to be brought in Landlord's
or the Power Party Lessor's name, as applicable, or (b) in the case of a
Property owned by a Third Party Lessor, request that such Contest be brought in
such Third Party Lessor's name. Tenant shall pay all reasonable costs and
expenses (including Legal Costs) incident to a Contest. Tenant shall Indemnify
Landlord, the Power Test Lessor and the Third Party Lessors against any Contest
brought by Tenant, whether or not such Contest is brought in Tenant's name.
11.3 Miscellaneous. Tenant shall be entitled to any refund of
any Imposition (and penalties and interest paid by Tenant) based upon Tenant's
prior overpayment of such Imposition, whether such refund is made during or
after the Term. Upon termination of Tenant's Contest of an Imposition, Tenant
shall pay the amount of such Imposition (if any) as has been finally determined
in such Contest to be due, together with any costs, interest, penalties or other
liabilities in connection with such Imposition. Upon final determination of
Tenant's Contest of a Law or Environmental Law, as applicable, Tenant shall
comply with such final determination.
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Landlord shall not enter any objection to any Contest. Tenant's right to contest
any Imposition or the valuation, assessment or reassessment of any Property for
tax purposes shall not be to the exclusion of Landlord, and Landlord shall have
the right to contest the foregoing upon Notice to Tenant.
11.4 Cooperation. Landlord and Tenant shall, upon request of
the other, reasonably cooperate with the other party and otherwise provide such
data as are maintained by the party to whom the request is made with respect to
any Property as may be necessary to prepare any required returns and reports or
as may be necessary in connection with the pursuit of any Contest permitted
hereunder. Landlord shall cause the Power Test Lessor to and shall request that
any Third Party Lessors, upon Tenant's request, reasonably cooperate with Tenant
and otherwise provide the data referred to in the preceding sentence with
respect to any Property subject to a Power Test Lease or Third Party Lease, as
applicable. Landlord, to the extent it possesses the same, and Tenant, to the
extent it possesses the same, will provide the other party, upon request, with
cost and depreciation records necessary for filing returns for any property
classified as personal property or necessary in connection with the pursuit of
any Contest permitted hereunder. Landlord will cause the Power Test Lessor, to
the extent the Power Test Lessor possesses the same, and will request that the
applicable Third Party Lessor, to the extent such Third Party Lessor possesses
the same, provide Tenant, upon request, with the records referred to in the
preceding sentence with respect to any Property subject to a Power Test Lease or
Third Party Lease, as applicable. Landlord shall give and shall cause the Power
Test Lessor to give prompt Notice to Tenant of all Real Estate Taxes payable by
Tenant hereunder for which Landlord or the Power Test Lessor, as applicable,
receives an invoice or other statement. Landlord shall request that each Third
Party Lessor give prompt Notice to Tenant of all Real Estate Taxes payable by
Tenant hereunder for which such Third Party Lessor receives an invoice or other
statement. All information made available under this Section 11.4 shall be
treated as "confidential" by the recipient and not be disclosed to any third
party except to the extent absolutely necessary to implement such permitted
Contest.
12. INSURANCE.
12.1 Tenant to Insure. Tenant shall, at Tenant's sole cost and
expense, during the Term, maintain the following insurance (or its then
reasonably available equivalent) or such greater coverage as may be required by
a Third Party Lease:
12.1.1 Building. Building insurance providing coverage
for the Premises and all equipment, fixtures, and machinery at
or in the Premises, against loss, damage, and destruction by
fire and other hazards encompassed under broad form coverage
as may be customary for like properties in the County (but
Tenant shall in no event be required to maintain earthquake or
war risk insurance) from time to time during the Term, in an
amount not less than 80% of the replacement value of the
insurable Improvements and equipment (excluding excavations
and foundations) located at the Premises, but in any event
sufficient to avoid co-insurance. To the extent customary for
like properties at the time, such insurance shall include
coverage for explosion of steam and pressure boilers and
similar
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apparatus located at the Premises; an "increased cost of
construction" endorsement; and an endorsement covering
demolition and cost of debris removal.
12.1.2 Liability. General public liability insurance
against claims for personal injury, death or property damage
occurring upon, in or about the Premises and adjoining streets
and passageways. The coverage under all such liability
insurance shall be at least $50 million in the aggregate for
any Lease Year, $5 million in respect of injury or death to a
single person, and at least $10 million, in respect of any one
accident, and not less than full replacement value for
property damage. Landlord shall be entitled from time to time,
upon 180 days' Notice to Tenant, to increase the dollar limits
set forth in this Section, subject to the following
limitations, which shall be cumulative: (a) such increased
limits shall never exceed the limits initially set forth (as
adjusted by the CPI Adjustment Factor), rounded to the nearest
$1,000,000; (b) such limits shall never exceed the limits
customarily maintained for similar commercial properties
located in the County; and (c) Landlord shall not be entitled
to increase such limits more frequently than once every three
years.
12.1.3 Workers' Compensation. Workers' compensation
insurance covering all persons employed in connection with any
Construction Work or operation of the Premises, and with
respect to whom any claim could be asserted against Landlord,
Realty Parent, a Third Party Lessor, the Power Test Lessor,
the Fee Estate or Landlord's leasehold interest in any Fee
Estate owned by a Third Party Lessor or the Power Test Lessor.
12.1.4 Other. All other insurance as Tenant determines
appropriate in the exercise of Tenant's reasonable business
judgment.
12.2 Nature of Insurance Program. Tenant shall provide any
insurance required by this Restated Lease pursuant to a "blanket" or "umbrella"
insurance policy covering all Properties demised hereunder, (i) which policy or
a certificate of such policy shall specify the amount(s) of the total insurance
allocated to each Property and to the Premises, which amounts shall not be
subject to reduction on account of claims made with respect to other Properties
or other properties that may be covered by such "blanket" or "umbrella"
insurance policy, and (ii) which policy otherwise complies with this Restated
Lease.
12.3 Policy Requirements and Endorsements. All insurance
policies required by this Restated Lease shall contain (by endorsement or
otherwise) the following provisions:
12.3.1 Additional Insureds. Liability insurance policies
shall name as additional insureds Landlord, its Affiliates
and/or Subsidiaries, Realty Parent, Third Party Lessors, the
Power Test Lessor and Fee Mortgagees.
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12.3.2 Primary Coverage. All policies shall be written
as primary policies not contributing with or in excess of any
coverage that Landlord may carry.
12.3.3 Tenant's Acts or Omissions. Each policy shall
include, if available without additional cost, a provision
that any act or omission of Tenant shall not prejudice any
party's rights (other than Tenant's) under such insurance
coverage.
12.3.4 Contractual Liability. Policies of liability
insurance shall contain contractual liability coverage,
relating to Tenant's indemnity obligations under this Restated
Lease, to the extent ordinarily insured.
12.3.5 Insurance Carrier Standards. Each insurance
carrier shall be authorized to do business in the State and
shall have a "Best's" rating of at least B+-VI.
12.3.6 Notice to Landlord. The insurance carrier shall
undertake to give Landlord sixty (60) days' prior Notice of
cancellation or amendment. Failure to give such Notice shall
not adversely affect the rights or increase the obligations of
the insurance carrier or be deemed a Default by Tenant
hereunder.
12.4 Deliveries to Landlord. Upon Notice to such effect by
Landlord, Tenant shall deliver to Landlord certificates and/or certified copies
of the insurance policies required by this Restated Lease, endorsed "Paid" or
accompanied by other evidence that the premiums for such policies have been
paid, at least thirty (30) days before expiration of any then current policy.
12.5 Deductibles. The deductible amounts of any insurance
policy that Tenant is required to maintain under this Article shall not exceed
the deductible amounts maintained by Tenant immediately prior to the date
hereof. Notwithstanding the foregoing, in the event that Landlord requires
Tenant to increase the amount of coverage provided by Tenant's liability
insurance policies pursuant to the provisions of Section 12.1.2 or if Tenant
increases the amount of coverage provided by Tenant's building insurance
policies, Tenant shall be entitled to a ratable increase in the maximum
deductible amounts permitted hereunder with respect to such liability insurance
policies or building insurance policies, as applicable. The terms of any policy
of general liability insurance maintained by Tenant pursuant to Section 12.1.2
shall permit third parties who suffer losses covered by such policy to recover
from the insurance carrier insurance proceeds in an amount equal to such losses,
up to the maximum amount of the insurance coverage provided by such policy,
notwithstanding (a) the existence of any deductible amount with respect to such
policy and (b) any claim that such carrier may have against Tenant with respect
to such carrier's payment to third parties of such deductible amount.
12.6 Tenant's Inability to Obtain Insurance. So long as (a)
any insurance required by this Restated Lease should, after reasonably diligent
effort by Tenant, be unobtainable at customary rates through no act or omission
by Tenant and (b) Tenant shall obtain
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the maximum insurance reasonably obtainable at customary rates and give Notice
to Landlord of the extent of Tenant's inability to obtain any insurance required
to be maintained under this Restated Lease, then unless Tenant's inability to
procure and maintain such insurance results from some activity or conduct within
Tenant's reasonable control, Tenant's obligation to procure and maintain such
insurance as is unobtainable shall be excused, but only so long as conditions
(a) and (b) are satisfied. Notwithstanding the foregoing, if Tenant, after
reasonably diligent effort, is unable to obtain any insurance required by this
Restated Lease at customary rates, Landlord shall have the right to obtain such
insurance at customary rates and shall charge the cost of such insurance to
Tenant as Additional Rent.
12.7 Waiver of Certain Claims. To the extent that Landlord or
Tenant purchases any hazard insurance relating to any Property, the party
purchasing such insurance shall attempt to cause the insurance carrier to agree
to a Waiver of Subrogation. If any insurance policy cannot be obtained with a
Waiver of Subrogation, or a Waiver of Subrogation is obtainable only by the
payment of an additional premium, then the party undertaking to obtain the
insurance shall give Notice of such fact to the other party. The other party
shall then have ten (10) Business Days after receipt of such Notice either to
place the insurance with a company that is reasonably satisfactory to the other
party and that will issue the insurance with a Waiver of Subrogation at no
additional cost, or to agree to pay the additional premium if such a policy can
be obtained only at additional cost. To the extent that the parties actually
obtain insurance with a Waiver of Subrogation, the parties release each other,
and their respective authorized representatives, from any claims for damage to
any person or any Property that are caused by or result from risks insured
against under such insurance policies, but only to the extent of the insurance
proceeds available to such party.
12.8 No Representation of Adequate Coverage. Except as
otherwise specifically provided for herein, neither party makes any
representation, or shall be deemed to have made any representation, that the
limits, scope, or form of insurance coverage specified in this Article are
adequate or sufficient.
13. DAMAGE OR DESTRUCTION.
13.1 Notice; No Rent Abatement. Tenant shall promptly give
Landlord Notice of any Casualty. Except as otherwise set forth herein, there
shall be no abatement or reduction of Fixed Rent or Additional Rent on account
of a Casualty. Except as otherwise provided in Section 13.3 and 13.4, Tenant
shall with reasonable promptness restore the damaged Improvements as nearly as
may be practicable to their condition, quality, and class immediately prior to
such Casualty, with such changes or alterations (including demolition) as Tenant
shall elect to make in conformity with this Restated Lease, including, without
limitation, the provisions of Article 5 and Section 7.2, all at Tenant's sole
cost and expense.
13.2 Adjustment of Claims; Use of Insurance Proceeds. Except
to the extent otherwise provided in a Permitted Leasehold Mortgage or a Third
Party Lease, Tenant shall be solely responsible for the adjustment of any
insurance claim. Except as otherwise provided in Section 13.3 and 13.4 or a
Third Party Lease, all proceeds of building or hazard insurance shall
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be paid to the Permitted Leasehold Mortgagee to be used for restoration of the
Premises if the Permitted Leasehold Mortgage encumbering the Leasehold Estate at
the time of such Casualty, if any, so requires. If such Permitted Leasehold
Mortgage so allows or if no Permitted Leasehold Mortgage encumbers the Leasehold
Estate at the time of any such Casualty, then, except as otherwise provided in
Section 13.3 and 13.4, such proceeds shall be paid to Tenant to be held and
applied in compliance with its restoration obligations under this Restated
Lease. After (a) completion of such restoration and (b) payment of all Fixed
Rent, Real Estate Taxes and insurance premiums required pursuant to Article 12
allocable to such Property, as reasonably determined by Tenant in accordance
with the principles set forth in the Fixed Rent Adjustment Procedures, due and
payable during the period beginning on the date of such Casualty and ending on
the date of completion of such restoration (except to the extent Tenant shall be
entitled to receive business interruption insurance or rental insurance with
respect to such Casualty), any funds remaining shall, subject to the rights of
Third Party Lessors, belong to Landlord.
13.3 Substantial Casualty; Insufficient Proceeds. Anything to
the contrary contained herein notwithstanding, if a Substantial Casualty occurs
and the insurance proceeds received by Tenant with respect to such Substantial
Casualty are not sufficient to pay for the restoration required by Section 13.1
notwithstanding Tenant's compliance with its obligations under Section 12.1.1
hereof with respect to the maintenance of building insurance, then Tenant may,
subject to the provisions of the applicable Third Party Lease, if any, (a) elect
to restore the Property for a lawful use other than the use of the Property
immediately prior to such Substantial Casualty, subject to the requirements
contained in Section 7.2, or (b) elect not to restore such Property, in either
case by delivering Notice of such election to Landlord within thirty (30) days
of the determination of the amount of insurance proceeds to be received from the
insurance carrier with respect to such Substantial Casualty. If Tenant makes the
election referred to in clause (a) of this Section, then the proceeds received
with respect to such Substantial Casualty shall be held, applied and distributed
in accordance with the provisions of Section 13.2. Tenant shall perform the
Construction Work with respect to such restoration in conformity with the
applicable requirements of this Restated Lease, including, without limitation,
the provisions of Section 7.2, all at Tenant's sole cost and expense. If Tenant
makes the election referred to in clause (b) of this Section, then the insurance
proceeds received with respect to such Substantial Casualty shall, subject to
the rights of Third Party Lessors, belong entirely to Landlord. If, at the time
of any such election referred to in clause (b), Tenant then holds any portion of
the insurance proceeds received on account of such Substantial Casualty, such
proceeds shall, subject to the rights of Third Party Lessors, promptly be paid
to Landlord. In no event shall any election pursuant to this Section 13.3 (i) to
change the use of such Property or (ii) to refrain from repairing, restoring or
reconstructing such Property be construed, in either case, to grant Tenant any
right to delete such Property from this Restated Lease or to any abatement or
reduction in Rent or in any way affect Tenant's obligation to comply with all
applicable Law and Environmental Law with respect to such Property.
13.4 End of Term. Notwithstanding anything to the contrary
contained herein, if a Substantial Casualty occurs within the last thirty (30)
months of the end of the existing Term, Tenant may, upon Notice to Landlord
given within thirty (30) days of the determination of the amount of insurance
proceeds to be received from the insurance carrier with respect to such
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Substantial Casualty and subject to the provisions of the applicable Third Party
Lease, if any, elect to not restore such Property, regardless of whether the
insurance proceeds with respect to such Substantial Casualty are sufficient to
complete the restoration of the Property in accordance with Section 13.1 hereof.
If Tenant so elects not to restore, then the insurance proceeds with respect to
such Substantial Casualty shall, subject to the rights of Third Party Lessors,
belong entirely to Landlord. If, at the time of such election, Tenant then holds
any portion of such insurance proceeds, such proceeds shall, subject to the
rights of Third Party Lessors, promptly be paid to Landlord. If Tenant makes
such election not to restore, then this Restated Lease shall terminate as to
such Property as of the date on which Landlord or the Third Party Lessor, as the
case may be, receives the full amount of the insurance proceeds to be received
from all insurance carriers with respect to such Substantial Casualty, and such
Property shall be deemed deleted from this Restated Lease on such date.
Thereupon, Fixed Rent shall be adjusted in accordance with the Fixed Rent
Adjustment Procedures, and the amounts held pursuant to this Restated Lease on
account of advanced Real Estate Tax payments pursuant to Article 4 shall be
adjusted accordingly. In no event shall any election pursuant to this Section be
deemed to grant Tenant any right to delete such Property from this Restated
Lease or to any abatement or reduction in Rent or in any way affect Tenant's
obligation to comply with all applicable Law and Environmental Law with respect
to such Property until the time at which such Property is deleted from this
Restated Lease pursuant to the foregoing provisions.
14. CONDEMNATION.
14.1 Substantial Condemnation.
14.1.1 Deletion; Awards. If a Substantial
Condemnation of any Property shall occur, then this Restated
Lease shall terminate as to such Property as of the effective
date of such Substantial Condemnation, such Property shall be
deemed to be deleted from this Restated Lease, the Fixed Rent
shall be adjusted in accordance with the Fixed Rent Adjustment
Procedures and the amounts held pursuant to this Restated
Lease on account of advanced Real Estate Tax payments pursuant
to Article 4 shall be adjusted accordingly. If the applicable
Government grants separate Awards to Landlord and Tenant (a
"Separate Award Jurisdiction"), then, notwithstanding anything
to the contrary contained in Section 14.5 and subject to the
rights of any Third Party Lessor, each of Landlord and Tenant
shall in good faith pursue such separate Award and shall be
entitled to retain such Award as it may receive from the
applicable Government with respect to its interest in the
applicable Property. Notwithstanding the foregoing, if the
Awards received in a Separate Award Jurisdiction with respect
to such Substantial Condemnation are inequitable given
Landlord's and Tenant's respective interests in such Property
or if the Property condemned is not located in a Separate
Award Jurisdiction, then, the following provision shall apply.
Subject to the rights of any Third Party Lessor, the aggregate
of such Award(s) shall be paid as follows, after Landlord
shall have been reimbursed for Landlord's Legal Costs incurred
in the determination and collection of the Award(s): Tenant
shall receive an amount
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equal to the product of (a) Tenant's Condemnation Share, times
(b) the Award(s), and Landlord shall receive the remainder of
the Award(s).
14.1.2 Tenant's Separate Award. Anything to
the contrary contained herein notwithstanding, if the
applicable Government grants to Tenant a separate Award on
account of Trade Equipment, moving costs, or loss of business,
then Tenant shall be entitled to apply for and retain such
separate Award, provided that such separate Award does not
reduce the Award(s) otherwise payable to Landlord and/or
Tenant by such Government with respect to such Condemnation.
14.1.3 Disputes. The amount of Landlord's
Award and Tenant's Award with respect to any Substantial
Condemnation shall be determined in accordance with the
provisions set forth above in the definitions of such terms.
In the event that the parties hereto are unable to agree on
such amounts or, with respect to a Separate Award
Jurisdiction, a dispute arises as to whether the Awards
received by Landlord and Tenant are inequitable given their
respective interests in such Property, then any such dispute
shall be resolved by an arbitration conducted in accordance
with the applicable provisions set forth in Schedule 4.
14.2 Insubstantial Condemnation.
14.2.1 Awards. If an Insubstantial
Condemnation at any Property shall occur, then subject to the
terms of any Third Party Lease to the contrary, the Award
received with respect to such Insubstantial Condemnation
shall, except as otherwise provided in this Section 14.2, be
paid to Tenant to be applied first to the repair, restoration
or reconstruction of any remaining part of the Improvements
not so taken, but only if and to the extent that such repair,
restoration or reconstruction was necessitated by the
occurrence of such Insubstantial Condemnation (as opposed to a
condition that existed prior to the occurrence of such
Insubstantial Condemnation). Except as otherwise provided in
Section 14.2.2 and 14.2.3, Tenant shall with reasonable
promptness after receipt of the Award repair, restore and/or
reconstruct the Improvements (other than outbuildings,
recreational facilities, service buildings, maintenance sheds
or the like which are not material to the use or operation of
such Property, which Tenant may elect not to re-erect) as
nearly as may be practicable to their condition, quality and
class immediately prior to such Insubstantial Condemnation,
with such changes or alterations (including demolition) as
Tenant shall elect to make in conformity with this Restated
Lease, including, without limitation, the provisions of
Section 7.2, all at Tenant's sole cost and expense. The
balance of any such Award remaining after such repair,
restoration or reconstruction shall be distributed to and
shall, subject to the rights of Third Party Lessors, belong to
Landlord.
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14.2.2 Insufficient Proceeds.
Notwithstanding the foregoing, if such Award is not sufficient
to pay for said repair, restoration or reconstruction, Tenant
shall be responsible for completing same at Tenant's sole cost
and expense. Tenant shall perform such repair, restoration or
reconstruction in accordance with applicable requirements of
this Restated Lease, including, without limitation, Section
13.1 hereof. Notwithstanding the foregoing, if such Award is
not sufficient to pay for said repair, restoration or
reconstruction, then Tenant, subject to the provisions of the
applicable Third Party Lease, if any, may (a) elect to repair,
restore or reconstruct the Property for a lawful use other
than the use of such Property immediately prior to such
Insubstantial Condemnation, subject to the requirements
contained in Section 7.2, or (b) elect not to repair, restore
or reconstruct such Property, in either case by delivering
Notice of such election to Landlord within ten (10) days of
such Condemnation. If Tenant makes the election referred to in
clause (a) of this Section, then the Award received with
respect to such Insubstantial Condemnation shall be held,
applied and distributed in accordance with the provisions of
Section 14.2.1. Tenant shall perform the Construction Work
with respect to such repair, restoration or reconstruction in
conformity with the applicable requirements of this Restated
Lease including, without limitation, the provisions of Section
7.2, but excluding the provisions of Section 14.2.1 which
require a rebuilding of the Improvements for the use
immediately prior to the Condemnation, all at Tenant's sole
cost and expense. If Tenant makes the election referred to in
clause (b) of this Section, then the Award received with
respect to such Insubstantial Condemnation shall, subject to
the rights of Third Party Lessors, belong entirely to
Landlord. If, at the time of any such election referred to in
clause (b) of this Section, Tenant then holds any portion of
the Award received on account of such Insubstantial
Condemnation, such Award shall, subject to the rights of Third
Party Lessors, promptly be paid to Landlord. In no event shall
any election pursuant to this Section (i) to change the use of
such Property or (ii) to refrain from repairing, restoring or
reconstructing such Property be deemed to grant Tenant any
right to delete such Property from this Restated Lease or in
any way affect Tenant's obligation to comply with all
applicable Law and Environmental Law with respect to such
Property, or any right to any abatement of Rent except as
provided in Section 14.2.4.
14.2.3 End of Term. Notwithstanding anything
to the contrary contained herein, if a Insubstantial
Condemnation occurs on a Property within the last thirty (30)
months of the end of the existing Term which requires
restoration of the Improvements on such Property (by more than
a de minimis amount), Tenant may, upon Notice to Landlord
within ten (10) days after the effective date of such
Condemnation and subject to the provisions of the applicable
Third Party Lease, if any, elect to not restore such Property,
regardless of whether the Award with respect to such
Insubstantial Condemnation is sufficient to complete said
repair, restoration or reconstruction. If Tenant makes the
election referred to in this Section, then the Award with
respect to such Insubstantial Condemnation shall, subject to
the rights of Third Party Lessors, belong entirely to
Landlord. If,
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at the time of such election, Tenant then holds any portion of
the Award received on account of such Insubstantial
Condemnation, such Award shall, subject to the rights of Third
Party Lessors, promptly be paid to Landlord. If Tenant makes
such election not to restore, then this Restated Lease shall
terminate as to such Property upon such election, and such
Property shall be deemed deleted from this Restated Lease on
such date. Thereupon, Fixed Rent shall be adjusted in
accordance with the Fixed Rent Adjustment Procedures, and the
amounts held pursuant to this Restated Lease on account of
advanced Real Estate Tax payments pursuant to Article 4 shall
be adjusted accordingly. In no event shall any election
pursuant to this Section be deemed to in any way affect
Tenant's obligation to comply with all applicable Law and
Environmental Law with respect to such Property before the
time at which such Property is deleted from this Restated
Lease.
14.2.4 Fixed Rent Adjustment. From and after
the effective date of the Insubstantial Condemnation, Fixed
Rent shall, except as otherwise provided in Section 14.2.3, be
adjusted as follows. New Fixed Rent shall equal Fixed Rent, as
it would have been determined without regard to the
Insubstantial Condemnation, multiplied by a fraction whose
numerator is the total value of applicable Property after the
Insubstantial Condemnation and whose denominator is the total
value of the applicable Property immediately before the
effective date of such Insubstantial Condemnation and without
considering such Insubstantial Condemnation or the expectation
thereof.
14.3 Temporary Condemnation. If a Temporary Condemnation shall
occur with respect to any Property, Rent shall not abate and, subject to the
terms of Third Party Lease to the contrary, Tenant will be entitled to receive
any award or payment.
14.4 Other Governmental Action. In the event of any action by
any Government not resulting in a Condemnation (or otherwise not resulting in a
deletion of a Property from this Restated Lease pursuant to the express
provisions of this Article, including Sections 14.6 and 14.7 hereof) but
creating a right to compensation, such as the changing of the grade of any
street upon which a Property abuts, then this Restated Lease shall continue in
full force and effect without reduction or abatement of Rent and subject to the
terms of any Third Party Lease to the contrary, Tenant shall be entitled to
receive the award or payment made in connection with such action.
14.5 Prompt Notice; Settlement. If either party becomes aware
of any Condemnation or threatened or contemplated Condemnation or any similar
event creating a right to compensation, then such party shall promptly give
Notice thereof to the other party. Landlord shall be responsible for the
settlement or compromise of any Award, except that Landlord shall not settle or
compromise any Award without the consent of Tenant and Leasehold Mortgagee,
which consent shall not be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing and subject to the rights of Leasehold Mortgagee
and the applicable Third Party Lessor, Tenant shall be solely responsible for
the settlement or compromise of any Award
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relating to a Temporary Condemnation, and Landlord's consent to any such
settlement or compromise shall not be required. Landlord shall have no right to
participate in proceedings related to a Temporary Condemnation, unless Tenant
may not legally participate in such proceedings, then Landlord shall participate
in such proceedings in accordance with Tenant's instructions, all at Tenant's
sole cost and expense and using counsel selected, instructed and paid by Tenant.
14.6 Pelham Manor Rezoning Event. If the Pelham Manor Rezoning
Event occurs, then the Property having a mailing address of 4301 Boston Post
Road, Bronx, New York 10466 shall be deleted from this Restated Lease, the Fixed
Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures,
and the amounts held pursuant to this Restated Lease on account of advanced Real
Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. Nothing
contained herein shall in any way limit Landlord's or Tenant's right to contest
the validity or the application of any Law or proposed Law or any Environmental
Law or proposed Environmental Law with respect to such Property or any other
Property, provided that no such contest shall subject (a) such Property or any
portion thereof to any risk of imminent forfeiture or foreclosure of any Fee
Mortgage then encumbering such Property or any portion thereof or to any risk of
termination of any Third Party Lease or (b) Tenant or Landlord to any risk of
criminal liability.
14.7 Use Restriction Event. If, at any time or from time to
time, a Use Restriction Event occurs with respect to a Property, then Tenant
shall have the option to terminate this Restated Lease with respect to such
Property by delivering to Landlord Notice of Tenant's election to so terminate
such Property from this Restated Lease. Upon the occurrence of a Use Restriction
Event, such Property shall be deemed deleted from this Restated Lease, the Fixed
Rent shall be adjusted to reflect such deletion in accordance with the Fixed
Rent Adjustment Procedures and the amounts held pursuant to this Restated Lease
on account of advanced Real Estate Tax payments pursuant to Article 4 shall be
adjusted accordingly, provided that Tenant shall have given Landlord at least
one (1) year's prior notice of its election to terminate this Restated Lease
with respect to such Property.
15. TRANSFERS BY LANDLORD.
15.1 Landlord's Right to Convey. Subject to the provisions of
Section 15.2 and Section 15.3, Landlord shall be entitled to convey the Fee
Estate of any Property and/or Landlord's leasehold interest in any Fee Estate
owned by a Third Party Lessor or the Power Test Lessor from time to time,
provided that the new holder thereof as a result of such conveyance
simultaneously enters into a new lease with Tenant with respect to such Property
on the same terms and conditions as are set forth in this Restated Lease, except
as otherwise set forth on Schedule 13 (any such new lease being hereinafter
referred to as a "Transferee Lease"). Notwithstanding the foregoing, any
conveyance of the Fee Estate of any Property and/or Landlord's leasehold
interest in any Fee Estate owned by a Power Test Lessor or a Third Party Lessor
to an Affiliate or Subsidiary of Tenant shall not be subject to the provisions
of Section 15.2 or 15.3; provided, however, that notwithstanding anything to the
contrary contained in Schedule 13, the Transferee Lease between Tenant and such
Affiliate or Subsidiary shall, as to
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subsequent conveyance, bind such Affiliate or Subsidiary to Tenant's Right of
First Offer (as defined hereinafter) and Tenant's Right of First Refusal (as
defined hereinafter). Upon any such conveyance of the Fee Estate of any Property
or Landlord's leasehold interest in any Fee Estate owned by a Third Party Lessor
or the Power Test Lessor in accordance with the preceding provisions, the
applicable Property shall be deleted from this Restated Lease, the Fixed Rent
shall be adjusted to reflect such deletion in accordance with Fixed Rent
Adjustment Procedures, and the amounts held pursuant to this Restated Lease on
account of advanced Real Estate Tax payments pursuant to Article 4 shall be
adjusted accordingly. Without limiting Tenant's remedies on account of any such
transaction, if Landlord makes any such conveyance in violation of this Section,
then: (x) such transaction shall be null, void, and of no force or effect; (y)
notwithstanding the foregoing, Tenant shall be entitled to equitable relief
requiring the cancellation and rescission of such transaction; and (z) Tenant
shall be entitled to have such violating Property deleted from this Restated
Lease, to have the Fixed Rent adjusted to reflect such deletion in accordance
with the Fixed Rent Adjustment Procedures, and to have the amounts held pursuant
to this Restated Lease on account of advanced Real Estate Tax payments pursuant
to Article 4 adjusted accordingly. Any conveyance of the Fee Estate shall not
terminate or impair any of the grantor's obligations as Landlord under this
Restated Lease.
15.2 Tenant's Right of First Offer. Anything contained in this
Restated Lease to the contrary notwithstanding, if at any time during the Term,
Landlord or the Power Test Lessor shall desire to convey its Fee Estate in any
Property, then, provided that Landlord has not terminated this Restated Lease on
account of an uncured Material Monetary Event of Default, Landlord or the Power
Test Lessor, as the case may be, shall offer (the "Landlord's Offer") to convey
such Fee Estate to Tenant (or a purchaser to be procured by Tenant) before
offering it to any other individual or entity, all in accordance with the
following provisions (as described herein, the "Right of First Offer").
15.2.1 Certain Exempt Transactions. Tenant's
Right of First Offer shall not apply to any of the following
transactions: (a) the grant of a bona fide Fee Mortgage to an
Institutional Lender or other unaffiliated lender; (b) any
conveyance pursuant to such a Fee Mortgage; (c) subject to
Section 15.6, any conveyance to an entity (i) into which or
with which Landlord or the Power Test Lessor, as the case may
be, merges, or (ii) which acquires Landlord or the Power Test
Lessor or all or substantially all of the assets of Landlord
or the Power Test Lessor, as the case may be, or (d) any
subsequent conveyance(s) by anyone whose title derives
directly or indirectly from any conveyance described in clause
(b) of this paragraph.
15.2.2 Landlord's Offer. Landlord's Offer
shall be in writing and shall set forth the material terms,
including, without limitation, price, closing date and deposit
amounts, on which Landlord or the Power Test Lessor, as the
case may be, proposes to convey the Fee Estate. If Tenant
accepts Landlord's Offer, the conveyance to Tenant shall be
made on the terms set forth in Landlord's Offer. Upon
conveyance of any Property to Tenant pursuant to this Section,
as of the date of such conveyance, such Property shall be
deemed deleted from this
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Restated Lease, the Fixed Rent shall be adjusted to reflect
such deletion in accordance with the Fixed Rent Adjustment
Procedures and the amounts held pursuant to this Restated
Lease on account of advanced Real Estate Tax payments pursuant
to Article 4 shall be adjusted accordingly.
15.2.3 Right of First Refusal Election. If
Tenant notifies Landlord that Tenant elects to treat the
Property that is the subject of Landlord's Offer as a ROFR
Property within thirty (30) days after receipt of Landlord's
Offer, then Landlord or the Power Test Lessor, as the case may
be, shall be free to sell such Property to another individual
or entity only in compliance with the provisions of Section
15.3. As used herein, the term "ROFR Property" means a
Property which Tenant elects to make subject to the Right of
First Refusal, provided, however, that Tenant may make such
election with respect to no more than forty (40) Properties
during the Term.
15.2.4 Sale to Third Party. If Tenant (a)
notifies Landlord that Tenant does not desire to purchase the
Fee Estate on the terms of Landlord's Offer, (b) does not
elect to treat such Property as a ROFR Property pursuant to
Section 15.2.3 or (c) fails to respond to Landlord's Offer
within thirty (30) days after receipt, then Landlord or the
Power Test Lessor, as the case may be, shall be free to sell
such Fee Estate to any other individual or entity, except as
set forth in the following sentence. If, however, Landlord or
the Power Test Lessor, as the case may be, desires to sell
such Fee Estate for a price less than 90% of the price set
forth in Landlord's Offer, or on terms that in any other way
are materially more favorable to the purchaser than those
described in Landlord's Offer, then Landlord or the Power Test
Lessor, as the case may be, shall again deliver to Tenant a
Landlord's Offer and the procedure described above shall again
apply. Notwithstanding the foregoing, if Landlord or the Power
Test Lessor, as the case may be, shall again deliver a
Landlord's Offer pursuant to the preceding sentence and Tenant
fails to respond to such Landlord's Offer within fifteen (15)
days, then Tenant shall be deemed to have waived its Right of
First Offer with respect to such sale. If Tenant does not
elect to exercise its Right of First Offer with respect to
such Fee Estate within the applicable time frame and Landlord
or the Power Test Lessor, as the case may be, sells such Fee
Estate to another individual or entity pursuant to this
Section 15.2, then, upon such sale, the applicable Property
shall be deemed deleted from this Restated Lease, the Fixed
Rent shall be adjusted to reflect such deletion in accordance
with the Fixed Rent Adjustment Procedures and the amounts held
pursuant to this Restated Lease on account of advanced Real
Estate Tax payments pursuant to Article 4 shall be adjusted
accordingly. Simultaneously with such sale, such purchaser
shall enter into a Transferee Lease with Tenant with respect
to such Property.
15.3 Tenant's Right of First Refusal. Anything in this
Restated Lease contained to the contrary notwithstanding, if Landlord or the
Power Test Lessor, as the case may be, at any time during the Term receives one
or more bona fide offers from third parties to
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convey the Fee Estate of a Property that Tenant has elected to treat as a ROFR
Property pursuant to Section 15.2.3, which offer Landlord or the Power Test
Lessor, as the case may be, intends to accept, then, provided that Landlord has
not terminated this Restated Lease on account of an uncured Material Monetary
Event of Default, Landlord or the Power Test Lessor, as the case may be, agrees
to notify Tenant in writing, which Notice shall contain the name and address of
the offeror and the proposed contract of sale (containing the price, deposit
amount and all other material terms and conditions of such offer) (such Notice
being referred to hereinafter as the "Third Party Offer Notice"). Tenant shall
have four (4) Business Days from and after its receipt of the Third Party Offer
Notice to provide Landlord with Notice of its election to purchase the ROFR
Property that is the subject of such Third Party Offer Notice (such right to
purchase any such ROFR Property being referred to hereinafter as the "Right of
First Refusal").
15.3.1 Sale to Third Party. If Tenant does
not elect to exercise its Right of First Refusal with respect
to such ROFR Property within such time frame, then Landlord or
the Power Test Lessor, as the case may be, shall be entitled
to convey such ROFR Property to the purchaser set forth in the
Third Party Offer Notice on substantially the same terms and
conditions in all material respects as those set forth in such
Third Party Offer Notice. Such purchaser shall, simultaneously
with the conveyance of such ROFR Property, enter into a
Transferee Lease with Tenant with respect to such ROFR
Property. Upon such conveyance, such Property shall be deemed
deleted from this Restated Lease, the Fixed Rent shall be
adjusted to reflect such deletion in accordance with the Fixed
Rent Adjustment Procedures, and the amounts held pursuant to
this Restated Lease on account of advanced Real Estate Tax
payments pursuant to Article 4 shall be adjusted accordingly.
If Landlord does not sell to such purchaser as provided above,
then any future proposed sale of such Property shall be
subject to the provisions of Section 15.2 and, if applicable,
Section 15.3.
15.3.2 Sale to Tenant. If Tenant elects to
exercise its Right of First Refusal and purchase the ROFR
Property that is the subject of the Third Party Offer Notice,
then such sale to Tenant shall be on the same terms and
conditions in all material respects as those set forth in the
contract of sale provided to Tenant in connection with the
delivery of the Third Party Offer Notice. The closing of any
such sale to Tenant shall occur in accordance with the terms
and conditions of such contract of sale. Upon conveyance of
any such ROFR Property to Tenant pursuant to this paragraph,
such ROFR Property shall be deleted from this Restated Lease,
the Fixed Rent shall be adjusted to reflect such deletion in
accordance with the Fixed Rent Adjustment Procedures, and the
amounts held pursuant to this Restated Lease on account of
advanced Real Estate Tax payments pursuant to Article 4 shall
be adjusted accordingly.
15.3.3 Certain Exempt Transactions.
Notwithstanding anything to the contrary contained herein,
Tenant's Right of First Refusal shall not apply to any of the
following transactions: (a) the grant of a bona fide Fee
Mortgage to an Institutional Lender or other unaffiliated
lender; (b) any conveyance pursuant to
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such a Fee Mortgage; (c) subject to Section 15.6, any
conveyance to an entity (i) into which or with which Landlord
or the Power Test Lessor, as the case may be, merges, or (ii)
which acquires Landlord or the Power Test Lessor or all or
substantially all of the assets of Landlord or the Power Test
Lessor, as the case may be, or (d) any subsequent
conveyance(s) by anyone whose title derives directly or
indirectly from any conveyance described in clause (b) of this
Section.
15.4 Landlord's Mortgages. This Restated Lease shall be
subject and subordinate to all existing Fee Mortgages and to all subsequent Fee
Mortgages and the rights of holders of such Fee Mortgages, provided, in each
case, that a non-disturbance agreement is obtained whereunder Tenant's rights
under this Restated Lease will not be disturbed upon any foreclosure or other
exercise of remedies under a Fee Mortgage as long as a Material Monetary Event
of Default is not in existence at the time of such foreclosure or such other
exercise or remedies, and provides such other similar assurances as Tenant shall
reasonably request. This Restated Lease and Leasehold Estate hereunder shall be
prior and superior to all existing and subsequent Fee Mortgages where a
non-disturbance agreement has not been obtained, except as otherwise set forth
in a Third Party Lease. Notwithstanding the foregoing, with respect to the Fleet
Mortgage, Landlord shall (a) cause the holder of the Fleet Mortgage to enter
into a non-disturbance agreement substantially identical to the form set forth
on Exhibit K; or (b) cause such Fee Mortgage to be discharged of record, in
either case on or prior to the Restatement Effective Date. With respect to any
Fee Mortgage encumbering Landlord's interest in any Property as of the date
hereof, which Fee Mortgage is set forth on Exhibit I, Landlord shall request
that the holder of such Fee Mortgage enter into a non-disturbance agreement in a
form customary for a single-site purchase money mortgage transaction similar to
the transaction consummated between the holder of such Fee Mortgage and Landlord
or its predecessor in interest, which non-disturbance agreement shall be
reasonably acceptable to Tenant. In the event that (a) Landlord is unable to
cause the holder of such Fee Mortgage to enter into such non-disturbance
agreement and (b) a default occurs under the applicable Fee Mortgage, which
default was not caused by Tenant, a Subtenant or their respective agents,
employees, contractors, licensees or invitees, then Landlord shall cause such
Fee Mortgage to be discharged of record prior to the time that a foreclosure or
other exercise of remedies under such Fee Mortgage occurs such that the
applicable Property is deleted from this Restated Lease. If Tenant is unable to
cause such Fee Mortgage to be discharged of record and the applicable Property
is deleted from this Restated Lease, Landlord shall Indemnify Tenant for all
losses, damages and expenses suffered by Tenant as a result of such foreclosure
or other exercise of remedies.
15.5 Termination of Purchase Option on Conveyance of Fee
Estate. Notwithstanding anything to the contrary contained herein, any unrelated
bona fide purchaser of the Fee Estate of any Property shall in no event be
bound, as to subsequent conveyances, by Tenant's Right of First Offer or
Tenant's Right of First Refusal, except as otherwise set forth in Section 15.6.
15.6 Sale of Premises; Mergers. Notwithstanding anything to
the contrary contained herein, including, without limitation, clause (c) of
Section 15.2.1 and clause (c) of Section 15.3.3, in the event that Landlord
conveys the Premises or substantially all of the
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Properties to a single Person, this Restated Lease shall remain in full force
and effect as a lease between such purchaser, as Landlord, and Tenant for the
Premises or for such Properties, as applicable. Without limiting the generality
of the foregoing, such purchaser shall be bound, as to subsequent conveyances,
by Tenant's Right of First Offer and Tenant's Right of First Refusal. In the
event that any entity merges with Landlord or the Power Test Lessor or acquires
substantially all of the assets of Landlord or the Power Test Lessor, such
merged or successor entity shall be bound by the provisions of Section 15.1 with
respect to any subsequent conveyance of the Fee Estate of any Property or such
entity's interest therein, including, without limitation, Tenant's Right of
First Offer and Tenant's Right of First Refusal.
15.7 Zoning Lots. Without Tenant's prior written consent,
which Tenant shall not unreasonably withhold, Landlord shall not enter into, and
shall prevent the Power Test Lessor from entering into, any agreement or
instrument by which any Property is combined with any other real property for
purposes of any Law governing zoning, bulk, development rights, or any similar
matter, or by which any rights arising under such Laws to develop any Property
is transferred to any other real property.
16. TRANSFERS BY TENANT.
16.1 Tenant's Limited Right. Except as specifically provided
in Article 26 and Section 26.2, Tenant may not assign, mortgage, pledge or
transfer this Restated Lease (collectively, a "Transfer") without Landlord's
consent, which consent shall not be unreasonably withheld, conditioned or
delayed provided that the assignee is no less creditworthy than Tenant
immediately prior to such Transfer. Tenant may not assign any part(s) of this
Restated Lease (i.e. less than the Premises) under any circumstance whatsoever.
Any permitted assignee of Tenant shall assume all obligations and liabilities of
Tenant under this Restated Lease. Notwithstanding the foregoing, the initial
Tenant and all subsequent Tenants shall remain jointly and severally liable and
responsible for all liabilities, responsibilities and obligations of Tenant
under this Restated Lease, whether accruing prior to, at the time of, or after
any such permitted assignment. Tenant shall promptly Notify Landlord of the
completion of any approved Transfer.
16.2 Permitted Assignments. Notwithstanding anything to the
contrary contained in Section 26.1, Tenant, without Landlord's prior consent,
and subject to the terms of any applicable Third Party Lease, may assign all but
not any part of this Restated Lease (i.e. the Premises) to (i) Leasehold
Mortgagee, or (ii) an entity into which or with which Tenant merges or which
acquires all or substantially all of Tenant's assets, provided that the merged
or resulting entity is, at the time of the merger, and remains, at all times
throughout the Term, an entity formed or incorporated under the Laws of any
state or commonwealth of the United States and in good standing under the Laws
of such state or commonwealth.
16.3 Tenant's Right to Sublet. Subject to the terms of any
applicable Third Party Lease, Tenant may enter into a Sublease for any lawful
purpose, extend, renew or modify any Sublease, consent to any subleasing (or
further levels of subleasing) (all of which shall be within the defined term
"Sublease," and the occupants thereunder shall all be deemed "Subtenants"),
terminate any Sublease or evict any Subtenant, all without Landlord's consent.
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The term of any Sublease (including renewal options thereof) shall not extend
beyond the Term (including only any Renewal Options previously exercised by
Tenant). In the event that Tenant enters into a Sublease of a Property for
lawful purposes other than as a Service Station Property or a Petroleum Terminal
Property, Tenant shall at its expense remove all USTs, above-ground tanks and
related piping, and contaminated soil at such Property, if any, if and to the
extent required by applicable Law or Environmental Law. Thereafter,
notwithstanding anything to the contrary contained herein, Tenant shall at its
expense complete all environmental investigations and/or remediations as may be
required by any Government, except to the extent that Landlord is required to
complete such investigations and/or Remediation pursuant to Section 7.6 or
Section 9.1. Tenant hereby assigns, transfers and sets over to Landlord all of
Tenant's right, title, and interest in and to each Sublease entered into by
Tenant from time to time, together with all subrents or other sums of money due
and payable under such Sublease and all security deposited with Tenant under
such Sublease. Such assignment shall, however, become effective and operative
only if this Restated Lease shall expire or be terminated or canceled, or if
Landlord re-enters or takes possession of the Premises pursuant to this Restated
Lease, following (in either case) the expiration of all applicable cure periods.
Notwithstanding the foregoing, Tenant agrees that, upon the request of Landlord,
all subtenancies, as specified by Landlord, will be terminated before the
expiration, termination or cancellation of this Restated Lease. Notwithstanding
anything to the contrary contained herein, all Subleases shall be subject and
subordinate to the terms and conditions of this Restated Lease (as this Restated
Lease may be renewed, amended, supplemented, modified, replaced or restated from
time to time) and, unless Landlord elects otherwise, shall automatically
terminate upon any termination of this Restated Lease.
16.4 Subleases with Single Purpose Entities. In the event that
Tenant subleases the Premises or all or any portion of any Property to a
bankruptcy-remote single purpose entity or any similar entity that is an
Affiliate and/or Subsidiary of Tenant in connection with any subleasehold
financing, Landlord shall enter into and cause the Power Test Lessor to enter
into (and shall request that the holder of any Fee Mortgage and any applicable
Third Party Lessor enter into) a non-disturbance agreement with such Subtenant
whereunder such Subtenant's rights under such Sublease will not be disturbed
upon any termination of or other exercise of remedies under this Restated Lease
(or the termination of any superior estate, if applicable) and which provides
such other similar assurances as such Subtenant shall reasonably request;
provided that (i) such Sublease is on terms no less favorable to Landlord with
respect to the Property or Properties demised thereunder than the corresponding
terms hereunder, (ii) such financing is provided by a Permitted Leasehold
Mortgagee, and (iii) there shall be no more than 50 such subleasehold financings
outstanding at any point in time.
16.5 No Release. No Transfer or Sublease shall affect or
reduce any of Tenant's obligations or Landlord's rights under this Restated
Lease. All obligations of Tenant under this Restated Lease shall continue in
full force and effect notwithstanding any Sublease or Transfer.
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17. QUIET ENJOYMENT.
Landlord covenants that, so long as Landlord has not
terminated this Restated Lease on account of a Material Monetary Event of
Default by Tenant, Tenant shall and may peaceably and quietly have, hold and
enjoy the Premises for the Term without molestation or disturbance by or from
Landlord or anyone claiming by or through Landlord or having title to the
Premises paramount to Landlord, and free of any encumbrance created or suffered
by Landlord, except Permitted Exceptions, provided, however, that the foregoing
shall not apply if Landlord loses possession under a Third Party Lease for any
reason other than Landlord's default thereunder, which was not caused by a
corresponding default by Tenant hereunder.
18. DEFAULT BY TENANT; REMEDIES.
18.1 Definition of "Event of Default". The term "Event of
Default" shall mean and refer to the occurrence of any one or more of the
circumstances.
18.1.1 Material Monetary Default. An Event
of Default shall be deemed to have occurred if a Material
Monetary Default shall occur and the Material Monetary Default
shall continue and not be remedied for ten (10) days after
Landlord has given Tenant Notice of such Material Monetary
Default, specifying in reasonable detail the amount of money
required to be paid by Tenant and the nature of such payment
(any such Event of Default being referred to hereinafter as a
"Material Monetary Event of Default"). Notwithstanding the
foregoing, if a Material Monetary Default relating to Tenant's
failure to maintain any of the insurance coverage required in
Article 12 shall occur, a Material Monetary Event of Default
with respect thereto shall not be deemed to have occurred
unless such Material Monetary Default shall continue and not
be remedied for sixty (60) days after receipt of Landlord's
Notice, provided that Tenant shall, promptly upon the
occurrence of such Material Monetary Default, and at all times
until such Material Monetary Default is cured, maintain
insurance coverage substantially equivalent, as reasonably
determined by Landlord, to the insurance coverage to which
such Material Monetary Default relates.
18.1.2 Non-Material Monetary Default. An
Event of Default shall be deemed to have occurred if a
Non-Material Monetary Default shall occur and the Non-Material
Monetary Default shall continue and not be remedied for twenty
(20) days after Landlord has given Tenant Notice of such
Non-Material Monetary Default, specifying in reasonable detail
the amount of money required to be paid by Tenant and the
nature of such payment (any such Event of Default being
referred to hereinafter as a "Non-Material Monetary Event of
Default").
18.1.3 Non-Monetary Default. An Event of
Default shall be deemed to have occurred if (a) except as
otherwise provided in clause (b) or (c) hereof, a Non-Monetary
Default shall occur and the Non-Monetary Default shall
continue and not be remedied by Tenant within 30 days after
Landlord shall have delivered to Tenant a Notice describing
the same in reasonable detail; (b) in the case of a
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Non-Monetary Default (other than a Bankruptcy Default) that
cannot with due diligence be cured within 30 days from such
Notice, Tenant shall not (x) within 30 days from Landlord's
Notice advise Landlord of Tenant's intention to take all
reasonable steps necessary to remedy such Non-Monetary
Default, (y) duly commence the cure of such Non-Monetary
Default within such period, and then diligently prosecute to
completion the remedy of the Non-Monetary Default and (z)
complete such remedy within a reasonable time under the
circumstances; or (c) a Bankruptcy Default occurs (any such
Event of Default being referred to hereinafter as a
"Non-Monetary Event of Default").
Non-Monetary Defaults shall include, without limitation, a default
under any Third Party Lease, any Power Test Lease or under the
provisions of a Fee Mortgage as a result of any action or failure to
act by Tenant, Subtenant or their respective agents, contractors,
employees, invitees or licensees in violation of the provisions of this
Restated Lease.
18.2 Remedies for Material Monetary Event of Defaults. If a
Material Monetary Event of Default occurs, then Landlord shall, at Landlord's
option, have any or all of the following remedies, all of which shall be
cumulative (so that Landlord's exercise of one remedy shall not preclude
Landlord's exercise of another remedy), in addition to such other remedies as
may be available at law or in equity or pursuant to any other terms of this
Restated Lease. Landlord's remedies shall include, without limitation:
18.2.1 Termination of Tenant's Rights. Upon
ten (10) days' notice, Landlord may terminate Tenant's right
to possession of the Premises by any lawful means, in which
case this Restated Lease shall terminate (and such date of
termination shall be the Termination Date) and Tenant shall
immediately surrender possession of the Premises to Landlord.
18.2.2 Taking of Possession. Landlord may
re-enter and take possession of the Premises or any Property
with or without process of law and remove Tenant, with or
without having terminated this Restated Lease. This is
intended to constitute an express right of re-entry on
Landlord's part.
18.2.3 Security Devices. Subject to
applicable Laws, Landlord may change the locks and other
security devices providing admittance to the Premises or any
Property.
18.2.4 Injunction of Tenant's Breaches.
Landlord shall be entitled to obtain a court order enjoining
Tenant from continuing conduct constituting a breach of
Tenant's covenants in this Restated Lease. Tenant specifically
acknowledges that damages would not constitute an adequate
remedy for Tenant's breach of any non-monetary covenant
contained in this Restated Lease.
18.2.5 Damages. Landlord may recover from
Tenant all damages incurred by Landlord by reason of Tenant's
Default, including, without limitation, the costs of
recovering possession, reletting the Premises, and any and all
other
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damages legally recoverable by Landlord. Such damages shall
include, at Landlord's election, either (a) the Rent provided
for in this Restated Lease, when and as due and payable
pursuant to this Restated Lease, less (in the case of this
clause (a) only) Landlord's actual proceeds of reletting net
of Landlord's actual reasonable costs of reletting, or (b) the
entire amount of Rent due for the entire Term (or Renewal
Term, if applicable) shall accelerate and immediately become
due and payable, as the same shall be discounted to its then
present value, using a discount rate equal to the then current
semi-annual yield to maturity of a United States Treasury
security having a maturity of ten (10) years. Landlord may
recover such damages at any time after Tenant's default,
including after expiration of the Term.
18.2.6 Continue Lease. Landlord may at
Landlord's option maintain Tenant's right to possession, in
which case this Restated Lease shall continue in effect and
Landlord shall be entitled to continue to enforce this
Restated Lease, including the right to collect Rent and the
right to any remedies for nonpayment.
18.3 Remedies for Other Events of Default. If a Non-Monetary
Event of Default or a Non-Material Monetary Default occurs, Landlord shall, at
Landlord's option, have either or both of the following remedies, both of which
shall be cumulative (so that Landlord's exercise of one remedy shall not
preclude Landlord's exercise of the other remedy):
18.3.1 Injunction of Tenant's Breaches.
Landlord shall be entitled to obtain a court order enjoining
Tenant from continuing conduct constituting a breach of
Tenant's covenants in this Restated Lease or compelling
specific performance of Tenant's covenants under this Restated
Lease. Tenant specifically acknowledges that damages would not
constitute an adequate remedy for Tenant's breach of any
non-monetary covenant contained in this Restated Lease.
18.3.2 Damages. Landlord may recover from
Tenant all monetary damages whatsoever incurred by Landlord by
reason of Tenant's Default, subject to the provisions of
Section 32.11.
18.4 Mitigation of Damages. Landlord agrees to take all
commercially reasonable steps necessary or appropriate to mitigate any damages
that Landlord may suffer on account of an Event of Default under this Restated
Lease. Without limiting the preceding sentence, in the event of a Material
Monetary Default, Landlord shall diligently endeavor to relet the Premises under
any circumstances where such reletting would mitigate Landlord's damages,
provided, however, that Landlord shall only be obligated to relet or sell the
Premises or any Property in a manner consistent with fair market economic
conditions at that time and other terms and conditions customary at that time.
Any such reletting shall not constitute a surrender or an acceptance of a
surrender of the Premises. In light of the fact that Landlord and Tenant intend
for this Restated Lease to be a single, unitary Lease, Landlord shall, in its
mitigation efforts, endeavor to lease or sell the Premises (i.e. all of the
Properties). Notwithstanding the foregoing, however, as a consideration to
Tenant for agreeing to the single, unitary lease concept,
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Landlord agrees that if after a reasonable period of time (not to exceed six (6)
months), it cannot sell or lease the Premises (i.e. all of the Properties), it
shall be obligated to mitigate damages on a Property by Property basis.
18.5 Tenant's Late Payments. If Tenant makes any payment
required under this Restated Lease after such payment is first due and payable,
then in addition to any other remedies Landlord may have under this Restated
Lease, and without reducing or adversely affecting any of Landlord's other
rights and remedies, Tenant shall pay Landlord within twenty (20) days after
demand interest on such late payment, at an interest rate equal to the Prime
Rate plus three (3) percent, beginning on the date such payment was first due
and payable and continuing until the date when Tenant actually makes such
payment.
18.6 Landlord's Right to Cure. If Tenant shall at any time
fail to make any payment or perform any other act on its part to be made or
performed pursuant to this Restated Lease and such failure continues beyond any
applicable notice or cure period, then Landlord, after ten (10) Business Days'
Notice to Tenant, or with such notice (if any) as is reasonably practicable
under the circumstances in case of an emergency, and without waiving or
releasing Tenant from any obligation of Tenant or from any Default by Tenant and
without waiving Landlord's right to take such action as may be permissible under
this Restated Lease as a result of such Default, may (but shall be under no
obligation to) make such payment or perform such act on Tenant's part to be made
or performed pursuant to this Restated Lease. Landlord may enter upon any
Property for such purpose, and take all such action on any such Property, as may
be reasonably necessary under the circumstances, but in doing so shall not
unreasonably interfere with the conduct of operations on any such Property by
Tenant or anyone claiming through Tenant and shall comply with Tenant's
reasonable instructions. Tenant shall reimburse Landlord, as Additional Rent
(within twenty (20) days after Notice from Landlord accompanied by reasonable
backup documentation), for all actual, out-of-pocket sums paid by Landlord and
all actual costs and expenses reasonably incurred by Landlord, together with
Landlord's Legal Costs, in connection with the exercise of Landlord's cure
rights under this Section.
18.7 Holding Over. The parties recognize and agree that if for
any reason or no reason Tenant remains in the Premises after the Termination
Date, then Landlord will suffer injury that is substantial, difficult or
impossible to measure accurately. Therefore, if both (a) Tenant remains in the
Premises after the Termination Date (for any month or partial month), for any
reason or no reason, and (b) either (i) Landlord at any time gives Tenant Notice
that Landlord elects to require Tenant to pay the liquidated damages described
in this Section or (ii) as of the date 31 days after the Termination Date,
Landlord has not commenced holdover proceedings against Tenant or otherwise
proceeded to remove Tenant from the Premises, then in addition to any other
rights or remedies available to Landlord, Tenant shall pay to Landlord, as
liquidated damages and not as a penalty, for each month (or portion of a month)
during which Tenant holds over in the Premises after the Termination Date, a sum
equal to: 110% (for the first month or partial month of holding over), 120% (for
the second month or partial month of holding over), and 150% (for each
subsequent month or partial month of holding over) times the Rent, including
Additional Rent, payable under this Restated Lease for the month in which the
Termination Date occurs.
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18.8 Waivers. Landlord and Tenant irrevocably waive all rights
to trial by jury in any action, proceeding, counterclaim or other litigation
arising out of or relating to this Restated Lease, the relationship of Landlord
and Tenant under this Restated Lease, the enforcement of this Restated Lease,
Tenant's use or occupancy of the Premises, any claim of injury or damage arising
between Landlord and Tenant, or any actions of Landlord in connection with or
relating to the enforcement of this Restated Lease. Tenant waives any right of
redemption provided for by Law.
18.9 Accord and Satisfaction; Partial Payments by Tenant. No
payment by Tenant or receipt by Landlord of a lesser amount than the amount
required to be paid by Tenant under this Restated Lease shall be deemed to be
other than a payment on account by Tenant, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment of Rent
be deemed an accord or satisfaction. Landlord may accept any such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy for nonpayment, including termination of this
Restated Lease and commencement of a summary dispossess proceeding.
Notwithstanding any endorsement on any check or any statement to the contrary in
any letter accompanying any check or payment, Landlord shall apply any partial
payments of back Rent made by Tenant to the oldest outstanding Rent under this
Restated Lease, except to the extent Landlord elects otherwise in its sole and
absolute discretion.
18.10 Accord and Satisfaction; Partial Payments by Landlord.
No payment by Landlord or receipt by Tenant of a lesser amount than the amount
required to be paid by Landlord under this Restated Lease shall be deemed to be
other than a payment on account by Landlord, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment made
pursuant to the terms of this Restated Lease be deemed an accord or
satisfaction. Tenant may accept any such check or payment without prejudice to
Tenant's right to offset the balance of the amount required to be paid by
Landlord to Tenant against Tenant's payment of the Rent as may be specifically
permitted under this Restated Lease.
18.11 Cross-Default. Any default under a Third Party Lease
that remains uncured beyond the applicable grace and/or notice period that is
caused by the failure of Tenant to comply with its obligations hereunder shall
be a Non-Monetary Event of Default under this Restated Lease.
19. TERMINATION.
Upon the Termination Date of this Restated Lease with respect
to the Premises or any Property pursuant to Article 13, 14, 15, 22 or 25, all
Tenant Improvements and in service USTs constituting part of the Premises or
such particular Property, as applicable, shall, subject to the rights of Third
Party Lessors, become Landlord's property (subject to Permitted Exceptions), and
Tenant shall deliver to Landlord possession of the Premises or such Property, as
applicable (including, without limitation, all Improvements thereon), in good
condition and state of repair, free of material violations of Law and
Environmental Law, free of Hazardous Substances (other than Hazardous Substances
(i) customarily maintained at the Premises or such Property, as applicable, in
the ordinary course of the business being conducted thereon in material
compliance
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with Environmental Laws, and (ii) to the extent such Hazardous Substances
constitute Contamination Landlord is Remediating pursuant to Section 9.1) free
of all liens of mechanics, laborers or materialmen and all other liens and
encumbrances other than any such liens and encumbrances incurred by Landlord,
the Power Test Lessor or a Third Party Lessor arising from such party's acts,
and free of all Subleases and tenancies, except to the extent Landlord elects
otherwise pursuant to Section 16.3 hereof. In addition, upon such termination
Tenant shall assign to Landlord, without recourse, all assignable licenses and
permits affecting the Premises or such Property, as applicable, and all
assignable contracts, warranties and guarantees then in effect relating thereto,
together with all unpaid insurance awards and rights against insurance carriers
as to then-existing insurance claims relating thereto. Tenant shall also deliver
to Landlord any unapplied building insurance proceeds in Tenant's possession.
Tenant shall remove from the Premises or such Property, as applicable, upon the
Termination Date with respect to the Premises or such Property, as applicable,
all Personal Property. Tenant shall, at its sole cost and expense, repair any
damage to the Premises or such Property caused by the removal of all Personal
Property. If Tenant fails to remove from the Premises or any Property, as
applicable, any Personal Property within thirty (30) days of the Termination
Date, then such Personal Property shall be deemed abandoned and may be used or
disposed of by Landlord without compensation to Tenant. Notwithstanding anything
to the contrary contained in this Restated Lease, if Landlord so elects by
Notice to Tenant at least six (6) months before the expiration of the Term (or
if Tenant fails to timely notify Landlord of its election not to exercise any
Renewal Option granted hereunder or this Restated Lease is terminated prior to
the end of the Term, then within a reasonable period of time under the
circumstances), Tenant shall, at its sole cost and expense, remove under
applicable Environmental Law at or prior to the Termination Date all USTs
identified by Landlord in such Notice and all Contamination, if any, associated
therewith. Tenant shall continue to completion after the Termination Date all
Remediations to the extent required by Environmental Law and shall continue to
pay Rent (including Additional Rent) for any Property rendered substantially
unusable because of any such Remediation until such time as such Property
becomes usable for its use immediately prior to the time at which such
Remediation began or, if such Property can no longer be used for such use, then
until such time as such Property becomes usable for any other lawful use.
Notwithstanding the foregoing, Tenant's obligations pursuant to the preceding
sentence to continue Remediation and to continue to pay Rent shall cease on the
date when such Property has received Closure for Tenant's Remediation. Nothing
contained in this Article 19 shall in any way diminish or otherwise affect
Tenant's indemnification obligations set forth in Article 10.
20. NOTICES.
20.1 Generally. All Notices shall be in writing and shall be
addressed to Landlord and Tenant as set forth below. Notices shall be (i)
delivered personally to the addresses set forth below, (ii) by Federal Express
or other courier service to the addresses set forth below, in which case they
shall be deemed delivered on the date of delivery (or when delivery has been
attempted twice, as evidenced by the written report of the courier service) to
the address(es) set forth below; or (iii) sent by certified mail, return receipt
requested, in which case they shall be deemed delivered upon receipt. Either
party may change its address by giving Notice in
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compliance with this Restated Lease. Notice of such a change shall be effective
only upon receipt. The addresses of the parties are:
Landlord: 125 Jericho Turnpike, Jericho, New York 11753
Attention: Real Estate Manager
With a copy to: Latham & Watkins, 885 Third Avenue, New York,
New York 10022
Attention: Richard L. Chadakoff, Esq.
Tenant: 125 Jericho Turnpike, Jericho, New York 11753
Attention: President
With a copy to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
590 Madison Avenue, New York, New York 10022
Attention: Robert G. Koen, Esq.
A copy of all such Notices shall also be contemporaneously delivered in the
manner set forth herein to Leasehold Mortgagee, provided that Leasehold
Mortgagee shall have provided Landlord with Notice of its name and address and a
copy of its Permitted Leasehold Mortgage. Getty Properties Corp. shall be
treated as "Landlord" for all purposes hereunder such that any Notice or other
communication delivered to Getty Properties Corp. by Tenant or received by
Tenant from Getty Properties Corp. shall be deemed Notice delivered to Landlord
or received from Landlord (which term "Landlord" includes those subsidiaries of
Getty Properties Corp. who have approved this Restated Lease on the signature
page hereof), as applicable. In addition, any Notice or other communication
delivered to Getty Properties Corp. by Tenant or received by Tenant from Getty
Properties Corp. shall be deemed Notice delivered by Tenant to the Power Test
Lessor or received by the Power Test Lessor from Tenant, as applicable.
20.2 Defaults Under Other Agreements. In the event that
Landlord receives notice of the occurrence of any default with respect to any
Third Party Lease or Power Test Lease, Landlord shall promptly provide Tenant
and, if required to do so pursuant to Section 20.1, Leasehold Mortgagee, with
Notice of such default. In the event that Landlord receives notice of the
occurrence of any default with respect to any Fee Mortgage encumbering
Landlord's, the Power Test Lessor's or a Third Party Lessor's interest in any
Fee Estate, Landlord shall endeavor to provide Tenant and, if required to do so
pursuant to Section 20.1, Leasehold Mortgage, with Notice of such default
reasonably promptly. In the event that Tenant receives notice of any default
under a Permitted Leasehold Mortgage or Sublease, Tenant shall provide Landlord
with Notice of such default.
21. NO BROKER.
Landlord and Tenant each represents and warrants to each other
that it did not engage any broker or finder in connection with this Restated
Lease and that no person is entitled to any commission or finder's fee on
account of any agreements or arrangements made by such
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party with any broker or finder. Each party shall Indemnify the other party
against any breach of the foregoing representation by the Indemnitor.
22. THIRD PARTY LEASES.
22.1 Subordination; Conflict. The rights of Tenant hereunder
are at all times subject to the terms and provisions of the Third Party Leases
(subject to the applicable provisions of Sections 7.6, 9.1, 25.1 (with respect
to Landlord's inability to declare a Non-Monetary Default for a Preexisting
Violation (as hereinafter defined) as of the Restatement Effective Date, but
without in any way diminishing Landlord's right to claim a Default for Tenant's
failure to comply with its obligations under Sections 25.2 and 25.3 hereof),
25.2, 25.3, and 30.1.11 and the Environmental Agreement), and Tenant agrees,
subject to such applicable provisions of this Restated Lease and the
Environmental Agreement, to perform in all material respects all of Landlord's
obligations, as lessee, to be performed by it under the Third Party Leases'
initial terms and all renewal terms except that Landlord shall remit and be
obligated for the fixed or base rent due to the Third Party Lessors.
Notwithstanding the foregoing and subject to the provisions of Sections 7.6,
9.1, 25.1 (with respect to Landlord's inability to declare a Non-Monetary
Default for a Preexisting Violation as of the Restatement Effective Date, but
without in any way diminishing Landlord's right to claim a Default for Tenant's
failure to comply with its obligations under Sections 25.2 and 25.3 hereof),
25.2, 25.3, and 30.1.11 and the Environmental Agreement, to the extent that any
failure to perform any of Landlord's obligations under a Third Party Lease would
cause a default to occur under such Third Party Lease, Tenant shall perform such
Landlord's obligation. In the event that there is any conflict between the terms
and conditions of this Restated Lease and the terms and conditions of any Third
Party Lease, the terms and conditions of such Third Party Lease shall control,
except with respect to rental payments due thereunder. In the event that any
Third Party Lease is terminated for any reason, Tenant acknowledges and agrees
that the term of this Restated Lease as applicable to the Property subject to
such Third Party Lease shall end thirty (30) days prior to the termination of
such Third Party Lease. If a Third Party Lessor claims that any default has
occurred under any Third Party Lease, Landlord, at the request of and at the
sole cost and expense of Tenant, shall timely institute and diligently prosecute
any action or proceeding which Tenant, in its reasonable judgment, deems
meritorious, in order to contest the existence of such alleged default under
such Third Party Lease. Tenant shall Indemnify and hold harmless Landlord from
and against any and all such claims arising from or in connection with such
request, action or proceeding. This indemnity and hold harmless agreement shall
include indemnity from and against any and all liability, fines, suits, demands,
costs and expenses of any kind or nature, including, without limitation, Legal
Costs incurred in connection with any such claim, action or proceeding brought
thereon. Tenant shall not make any claim against Landlord for any damage which
may arise, nor shall Tenant's obligations hereunder be diminished, by reason of
(i) the failure of any such Third Party Lessor to keep, observe or perform any
of its obligations pursuant to the applicable Third Party Lease, or (ii) the
acts or omissions of any such Third Party Lessor, or of its agents, contractors,
servants, employees, invitees or licensees.
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22.2 Renewal Options
22.2.1 Fixed Rental. For any Third Party Lease that contains a
Third Party Lease Renewal Option that specifies the rent that will be due and
payable during the renewal period or provides a formula through which such rent
is or will be ascertainable, Landlord shall exercise any such Third Party Lease
Renewal Option exercisable during the Initial Term and applicable Renewal Term,
and Tenant shall continue to sublease any Property subject to any such Third
Party Lease during the Initial Term and the applicable Renewal Term, as
applicable, on all of the terms and conditions contained in this Restated Lease.
If Tenant does not exercise its Renewal Option for the Premises prior to the
expiration of the Initial Term or the applicable Renewal Term pursuant to the
express provisions of Section 2.1, then this Restated Lease shall be deemed
terminated with respect to the Premises, including any Property with respect to
which a Third Party Lease was renewed pursuant to the foregoing provisions,
notwithstanding the fact that the end of the renewal term of any such Third
Party Lease extends beyond the expiration of the Term of this Restated Lease.
Notwithstanding the foregoing, if, not less than sixty (60) days prior to the
date that notice is due to a Third Party Lessor pursuant to the terms of any
such Third Party Lease with respect to the renewal thereof, Landlord and Tenant
mutually agree in writing not to exercise the Third Party Lease Renewal Option
contained in such Third Party Lease, then Landlord shall not be required to
renew such Third Party Lease, and Tenant shall not be required to sublease the
Property subject to such Third Party Lease. Upon the expiration of any such
Third Party Lease with respect to which Landlord and Tenant mutually agree not
to renew pursuant to the foregoing provisions, the Property subject to such
Third Party Lease shall be deleted from this Restated Lease, Fixed Rent shall be
adjusted in accordance with the Fixed Rent Adjustment Procedures, and the
amounts held pursuant to this Restated Lease on account of advanced Real Estate
Tax payments pursuant to Article 4 shall be adjusted accordingly.
22.2.2 Unspecified Rent. For any Property subject to a Third
Party Lease which contains a Third Party Lease Renewal Option but does not
specify the rent that will be due and payable during the renewal period or
provide a formula through which such rent is or will be ascertainable, the
following procedures shall apply. No less than one hundred twenty (120) days
prior to the date notice is due to a Third Party Lessor with respect to the
renewal of the applicable Third Party Lease, Tenant shall provide Landlord with
Notice of (a) Tenant's reasonable determination of the amount of Fixed Rent
payable hereunder allocable to the Property subject to such Third Party Lease,
which determination shall be made in accordance with the principles set forth in
the Fixed Rent Adjustment Procedures (the "Original Term Rent Allocation"), and
(b) the maximum amount of Fixed Rent which Tenant would be willing to pay
hereunder with respect to such Property during the renewal period of the Third
Party Lease to which such Property is subject (the "Maximum Renewal Term Rent
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Allocation"). Landlord shall then negotiate with such Third Party Lessor the
rental that will be due and payable by Landlord during the renewal period of
such Third Party Lease (such amount being hereinafter referred to as the "Third
Party Lease Renewal Rental"), and promptly notify Tenant after the Third Party
Lease Renewal Rental has been determined. If the sum of (i) the Third Party
Lease Renewal Rental and (ii) the Third Party Lease Spread (such sum being
hereinafter referred to as the "Renewal Term Rent Allocation") is equal to or
less than the Original Term Rent Allocation, then Tenant shall continue to
sublease the Property subject to such Third Party Lease during the Term on all
of the terms and conditions contained in this Restated Lease, except that the
Fixed Rent due and payable hereunder shall be reduced by an amount equal to
fifty (50) percent of the difference, if any, between the Original Term Rent
Allocation and the Renewal Term Rent Allocation. If the Renewal Term Rent
Allocation is greater than the Original Term Rent Allocation but is less than or
equal to the Maximum Renewal Term Rent Allocation, then Tenant shall continue to
sublease such Property during the Term on all of the terms and conditions
contained in this Restated Lease, except that the Fixed Rent due and payable
hereunder shall be increased by an amount equal to the difference between the
Renewal Term Rent Allocation and the Original Term Rent Allocation. If the
Renewal Term Rent Allocation is greater than the Maximum Renewal Term Rent
Allocation, then Landlord shall offer to continue to sublease such Property to
Tenant on all terms and conditions contained in this Restated Lease, except that
Landlord shall be entitled to require that the Fixed Rent due and payable
hereunder be increased by an amount equal the difference between the Renewal
Term Rent Allocation and the Original Term Rent Allocation if Tenant so elects
to continue to sublease such Property. Tenant shall have thirty (30) days from
receipt of Landlord's offer to provide Landlord with Notice of Tenant's election
to continue to sublease such Property on such terms. If Tenant elects not to
continue to sublease such Third Party Lease or fails to provide Landlord with
Notice within such thirty-day period, then Landlord shall have the right, but
not the obligation, to exercise its Third Party Lease Renewal Option with
respect to such Property without any obligation owed to Tenant relating thereto.
Notwithstanding the foregoing, if, not less than sixty (60) days prior to the
date that notice is due to a Third Party Lessor pursuant to the terms of any
such Third Party Lease with respect to the renewal thereof, Landlord and Tenant
agree in writing not to exercise the Third Party Lease Renewal Option contained
in such Third Party Lease, then Landlord shall not be required to renew such
Third Party Lease, and Tenant shall not be required to sublease the Property
subject to such Third Party Lease. If Tenant rejects or is deemed to reject
Landlord's offer to continue to sublease a Property pursuant to the provisions
of this Section or if Landlord and Tenant agree not to renew pursuant to the
foregoing provisions, then such Property shall be deleted from this Restated
Lease, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment
Procedures, and the amounts held pursuant to this Restated Lease on account of
advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted
accordingly.
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22.3 Renewals. With respect to any Property subject to a Third
Party Lease that does not contain a Third Party Lease Renewal Option and expires
on or prior to the end of the Initial Term or then applicable Renewal Term,
Landlord and Tenant shall each have a non-exclusive right to negotiate a renewal
of such Third Party Lease or a direct lease with such Third Party Lessor under
such Third Party Lease, as applicable. At the end of the current term of any
such Third Party Lease, the Property subject to such Third Party Lease shall be
deleted from this Restated Lease, Fixed Rent shall be adjusted in accordance
with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this
Restated Lease on account of advanced Real Estate Tax payments pursuant to
Article 4 shall be adjusted accordingly. Notwithstanding anything to the
contrary contained herein, Tenant shall have the exclusive right, with respect
to any twenty-five (25) of such Properties, to negotiate with the Third Party
Lessor of the applicable Property until the date six (6) months prior to the
expiration of such Third Party Lease by providing Landlord with Notice of its
election to assert its exclusive right with respect to such Property at least
eighteen (18) months prior to the expiration of such Third Party Lease. If
Tenant fails to enter into a direct lease with such Third Party Lessor before
the date six (6) months prior to the expiration of said Third Party Lease, then
each of Landlord and Tenant shall thereafter have a non-exclusive right to
negotiate a renewal of such Third Party Lease or a direct lease, as applicable,
with such Third Party Lessor without any obligation owed to the other party
hereunder.
22.4 Power Test Lease. Landlord shall cause the term of each
Power Test Lease to be extended such that it shall not expire prior to the
expiration of this Restated Lease, notwithstanding anything to the contrary
contained herein or in any Power Test Lease. On or before the Restatement
Effective Date, Landlord shall enter into a lease modification agreement with
the Power Test Lessor substantially in the form set forth on Schedule 12.
22.5 Termination of Third Party Lease. If a Third Party Lease
shall terminate as a result of a default by Landlord under such Third Party
Lease, which default did not result, either directly or indirectly, from the
acts or omissions of Tenant, Subtenant or their respective agents, contractors,
employees, licensees or invitees, then Landlord shall Indemnify Tenant with
respect to such termination. If (a) the provisions of a Third Party Lease grant
to Landlord, as tenant thereunder, the right to obtain a non-disturbance
agreement from the holder of a Fee Mortgage encumbering the Fee Estate subject
to such Third Party Lease whereunder the holder of such Fee Mortgage agrees that
Landlord's rights under such Third Party Lease will not be disturbed as a result
of any foreclosure or other exercise of remedies under its Fee Mortgage,
provided that Landlord is not in default under such Third Party Lease at the
time of such foreclosure (such agreement being referred to hereinafter as a
"Third Party Lease Non-disturbance Agreement"), and (b) Landlord fails to obtain
such Third Party Lease Non-disturbance Agreement, then if such Third Party Lease
shall terminate as a result of any foreclosure or other exercise of remedies
under such Fee Mortgage (except as a result of the acts or omissions of Tenant,
Subtenant, or their respective agents, contractors, employees, licensees or
invitees), Landlord shall either, at Landlord's election, (i) obtain a new lease
with respect to the Property subject to such Third Party Lease, the terms of
which do not increase Tenant's obligations hereunder or reduce its rights
hereunder in any material respects, including, without limitation, with respect
to the payment of Rent, or (ii) pay Lease Termination Damages to
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Tenant. If (a) the provisions of a Third Party Lease grant to Landlord, as
tenant thereunder, the right to obtain a Third Party Lease Non-disturbance
Agreement and (b) Landlord, at any time after the date hereof, receives notice
from the applicable Third Party Lessor that such Third Party Lessor intends to
enter into a Fee Mortgage with respect to the Fee Estate subject to such Third
Party Lease, then Landlord shall so inform Tenant and shall use its reasonable
best efforts to cause the prospective holder of the Fee Mortgage to enter into a
Non-disturbance Agreement with Landlord on such prospective holder's customary
form. Anything to the contrary contained herein notwithstanding, Landlord's
failure to obtain a Third Party Lease Non-disturbance Agreement shall in no
event be deemed hereunder to be a default by Landlord under the applicable Third
Party Lease or hereunder. Unless Landlord obtains a new lease from the
applicable Third Party Lessor pursuant to the preceding provisions, upon any
termination or expiration of a Third Party Lease, the Property subject to such
Third Party Lease shall be deemed deleted from this Restated Lease and, provided
that such expiration or termination was not caused, directly or indirectly, by
the acts or omissions of Tenant, Subtenant or their respective agents,
contractors, employees, licensees or invitees, the Fixed Rent shall be adjusted
to reflect such deletion in accordance with the Fixed Rent Adjustment
Procedures, and the amounts held pursuant to this Restated Lease on account of
advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted
accordingly.
23. WAIVERS.
23.1 No Waiver by Silence. Failure of either party to complain
of any act or omission on the part of the other party shall not be deemed a
waiver by the noncomplaining party of any of its rights under this Restated
Lease. All waivers must be in writing and signed by the party granting the same.
No waiver by either party at any time of any breach of any provisions of this
Restated Lease shall be a waiver of a breach of any other provision of this
Restated Lease or a consent to any subsequent breach of the same or any other
provision. No acceptance by Landlord of any partial payment shall constitute an
accord or satisfaction but shall only be deemed a part payment on account.
23.2 No Landlord's Lien. Landlord confirms and acknowledges
that Landlord has no lien, right of distraint, or security interest in any
Personal Property located in, on or at the Premises, and that such Personal
Property shall not constitute security for payment of any Rent. If, at any time
after the Restatement Effective Date, any statute or principle of law would
grant Landlord any such lien or security interest, then Landlord hereby waives
the benefit of any such statute and such lien. Landlord further agrees to
execute documentation waiving its right to a Landlord's lien in the form
attached hereto as Schedule 11.
24. FURTHER ASSURANCES; ADDITIONAL DELIVERIES.
24.1 Estoppel Certificates. At any time and from time to time,
upon not less than ten (10) Business Days' prior written request by either party
to this Restated Lease (the "Requesting Party"), the other party to this
Restated Lease (the "Certifying Party") shall execute, acknowledge and deliver
to the Requesting Party (or directly to a third party whose name and address are
provided by the Requesting Party) up to four original counterparts of an
Estoppel
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Certificate. Any Estoppel Certificate may be relied upon by any third party to
whom an Estoppel Certificate is required to be directed. At any time in
connection with its proposed execution of a Permitted Leasehold Mortgage or
other proposed financing and otherwise no more frequently than once every twelve
(12) months, Tenant may (a) request that Landlord request that the Third Party
Lessors execute Third Party Lease Estoppel Certificates and (b) request that
Landlord cause the Power Test Lessor to execute a Power Test Lease Estoppel
Certificate. Upon Tenant making the request referred to in clause (a) or (b) of
the preceding sentence, Landlord shall use reasonably diligent efforts to
request that the Third Party Lessors execute the Third Party Lease Estoppel
Certificates and shall cause the Power Test Lessor to execute the Power Test
Lease Estoppel Certificate. In addition, at such time as Tenant requests
estoppel certificates pursuant to this Section in connection with any proposed
financing, Tenant may require that Landlord request from any Third Party Lessor
or Fee Mortgagee any consents or approvals that Tenant may be required to obtain
from such parties in connection with such proposed financing.
24.2 Equipment Liens. If at any time or from time to time
Tenant and/or Subtenant desires to enter into or grant any Equipment Liens that
comply with the definition of such term, then upon Tenant's and/or Subtenant's
request Landlord shall enter into such customary documentation (with a detailed
description) with respect to the property leased or otherwise financed or
encumbered pursuant to such Equipment Liens as Tenant and/or Subtenant shall
request, providing for matters such as the following: (a) Landlord's waiver of
the right to take possession of such property upon occurrence of an Event of
Default; and (b) customary agreements by Landlord to enable the secured party to
repossess such property without damage to the applicable Property or Properties
in the event of a default by Tenant and/or such Subtenant permitting such
secured party to exercise remedies under its Equipment Lien, which customary
documentation shall be substantially identical in all material respects to the
form of Landlord's Equipment Lien waiver attached hereto as Schedule 11 and made
a part hereof. Any such Equipment Lien shall be subordinate to this Restated
Lease.
24.3 Further Assurances. Each party agrees to execute and
deliver such further documents, and perform such further acts, as may be
reasonably necessary to achieve the intent of the parties with respect to
Tenant's leasing of the Premises from Landlord, as set forth in this Restated
Lease.
25. OBLIGATIONS UNDER ORIGINAL LEASE.
25.1 Generally. All rights and obligations of Landlord and
Tenant under the Original Lease shall remain unmodified and in full force and
effect with respect to any period prior to the Restatement Effective Date, and
nothing contained herein shall be deemed to restate, consolidate, amend or
otherwise affect any rights or obligations thereunder with respect to any period
prior to the Restatement Effective Date, all of which shall survive the
execution, delivery and effectiveness of this Restated Lease and the occurrence
of the Restatement Effective Date, provided, however, to the extent any such
obligations are restated and amended hereunder, they shall survive, be
interpreted and be enforced in accordance with the terms of this Restated Lease.
Notwithstanding the foregoing and anything contained in this Restated Lease to
the contrary, Tenant shall have no liability or obligation whatsoever to
Landlord and Landlord shall not
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declare the occurrence of a default under the Original Lease or a Default
hereunder with respect to (a) any of the Abandoned Properties, or (b) any
default that may exist under the Original Lease on or prior to the Restatement
Effective Date, except as expressly provided to the contrary in Sections 25.2
and 25.3 hereof and in the Environmental Agreement. Except to the extent
specifically provided to the contrary in this Restated Lease and in the
Environmental Agreement, Landlord shall not be liable for any defaults now
existing under the Original Lease. On or prior to the Restatement Effective
Date, all subleases, licenses and other occupancy agreements affecting the
Abandoned Properties shall be assigned to Landlord.
25.2 Violations of Law.
(a) In the event that any violation of Law exists with respect
to any Property as of the Restatement Effective Date, whether or not any party
shall have received any notice or otherwise becomes aware of such violation (any
such violation being referred to hereinafter as a "Preexisting Violation"), the
following provisions shall apply. If the existence of such Preexisting Violation
constitutes a breach of Landlord's representation contained in Section 30.1.4,
Landlord shall be solely responsible, at its own cost and expense, for curing
such Preexisting Violation. If any such other Preexisting Violations are listed
on Schedule 6, Tenant shall be solely responsible, at its own cost and expense,
for curing such Preexisting Violations. Any Preexisting Violation (other than a
Preexisting Violation that constitutes a breach of Landlord's representation
contained in Section 30.1.4 or listed on Schedule 6) relating to a Property
owned in fee by Landlord or the Power Test Lessor which becomes a Major
Violation as a result of a Governmental Request by Tenant, which Governmental
Request is reasonably necessary in connection with Construction Work necessary
to cure dangerous conditions which exist at the applicable Property as of the
Restatement Effective Date or to continue operating such Property for its then
current use, shall be referred to hereinafter as an "Eligible Legal Violation".
Tenant shall be solely responsible for curing Eligible Legal Violations and for
otherwise causing the Premises to comply in all material respects with all Laws,
subject to the terms and provisions of Section 25.1 (with respect to Landlord's
inability to declare a Non-Monetary Default for a Preexisting Violation as of
the Restatement Effective Date, but without in any way diminishing Landlord's
right to claim a Default for Tenant's failure to comply with its obligations
under Section 25.2 and 25.3 hereof) and Section 25.2(b) and 25.2(c) below.
Notwithstanding the foregoing, provided that Tenant complies with all the
procedures set forth or referred to in this Section, the actual, out-of-pocket
costs and expenses of incurred in connection with curing all such Eligible Legal
Violations shall be allocated between Tenant and Landlord as follows:
25.2.1 First, Tenant shall pay all costs and
expenses incurred therewith until the amount so incurred
equals $250,000 in aggregate.
25.2.2 Second, Landlord and Tenant shall
share equally, on a pro rata basis, the next $2,750,000 of
such costs and expenses incurred therewith until the amount so
incurred equals $3,000,000 in aggregate.
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25.2.3 Third, to the extent that such costs
and expenses incurred therewith exceeds $3,000,000, all such
costs and expenses shall be borne by Tenant.
The net effect of the foregoing provisions is that Landlord shall in no event
pay more than $1,375,000 in connection with the curing of all such Eligible
Legal Violations. The procedures set forth in Article III, Section 2 of the
Environmental Agreement shall, to the extent applicable, govern the procedures
and mechanics with respect to such allocation between Landlord and Tenant.
Notwithstanding the foregoing, Tenant shall be entitled to cure any such
Eligible Legal Violation at its sole cost and expense without seeking any
reimbursement from Landlord or any allocation of such costs and expenses between
itself and Landlord pursuant to the provisions of clauses 25.2.1 through 25.2.3,
in which case the procedures set forth above with respect to such allocation and
reimbursement shall be inapplicable. With respect to (a) any Major Violation
relating to a Property owned in fee by Landlord or the Power Test Lessor which
is not considered an Eligible Legal Violation and (b) any Major Violation
relating to a Property owned in fee by a Third Party Lessor which is not
considered an Eligible Legal Violation (as such term is modified pursuant to
Section 25.2(c) below), Tenant shall be solely responsible, at its own cost and
expense, for curing the same, subject to the terms and provisions of Section
25.1 (with respect to Landlord's inability to declare a Non-Monetary Default for
a Preexisting Violation as of the Restatement Effective Date, but without in any
way diminishing Landlord's right to claim a Default for Tenant's failure to
comply with its obligations under Sections 25.2 and 25.3 hereof). Anything to
the contrary contained herein notwithstanding, Landlord shall have no liability
or obligation whatsoever hereunder with respect to any Eligible Legal Violation
at any time after the second (2nd) anniversary of the Restatement Effective
Date, unless the curing of any such Eligible Legal Violation commenced prior to
such date.
(b) Uneconomic Cure; Fee Property. Notwithstanding anything to
the contrary contained herein, if an Eligible Legal Violation exists with
respect to any Property owned by Landlord or the Power Test Lessor in fee and if
the Government is then actively requiring the cure of such Eligible Legal
Violation, Tenant shall cure the same. Notwithstanding the foregoing, if Tenant
reasonably determines that effecting such cure would be Uneconomic, then,
provided that the cure of such violation at such Property exceeds, in Tenant's
reasonable judgment, $100,000 (such amount being referred to herein as the
"Uneconomic Threshold"), Tenant may then deliver a Notice which sets forth
Tenant's request to delete such Property from this Restated Lease and reasonable
grounds, in reasonable detail, for Tenant's determination that the curing of
such Eligible Legal Violation would be Uneconomic (a "Deletion Request").
Landlord shall, within thirty (30) days of receipt of such Deletion Request,
provide Notice to Tenant as to whether Landlord will cure such Eligible Legal
Violation and shall begin to diligently prosecute the cure of the same. If
Landlord so elects to cure such Eligible Legal Violation, it shall effect such
cure at its sole cost and expense without seeking reimbursement from Tenant, and
any sums expended by Landlord in connection therewith shall in no event be
deemed to be or considered as amounts expended by Landlord in connection with
its obligation under Section 25.2.2. If Landlord elects to and so cures such
Eligible Legal Violation, Landlord shall have the right but not the obligation
to continue to sublease such Property to Tenant on all
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the terms and conditions set forth in this Restated Lease. If, however, Landlord
fails to respond to Tenant's Deletion Request within such thirty-day period or
fails to commence to cure such Eligible Legal Violation and diligently pursue
such cure within such thirty-day period, then, as of the date which is sixty
(60) days after Tenant delivers the Deletion Request to Landlord, the applicable
Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall
be adjusted to reflect such deletion in accordance with the Fixed Rent
Adjustment Procedures, and the amounts held pursuant to this Restated Lease on
account of advanced Real Estate Tax payments pursuant to Article 4 shall be
adjusted accordingly. Notwithstanding the foregoing, if Tenant has expended at
least $100,000 (net of any reimbursements received from Landlord or any third
parties) in connection with curing Eligible Legal Violations on such Property or
if Tenant has expended at least $2,000,000 (net of any reimbursements received
from Landlord or any third parties) in connection with curing Eligible Legal
Violations on any Property or Properties (whether or not Landlord shall have
expended any amount with respect to curing Eligible Legal Violations on the
applicable Property), then Tenant shall be entitled to deliver a Deletion
Request notwithstanding the fact that the cure of such violation does not, in
Tenant's reasonable judgment, exceed the Uneconomic Threshold. In the event that
the Government is actively requiring the cure of an Eligible Legal Violation,
the cure of which Tenant reasonably determines to be Uneconomic but which will
not exceed the Uneconomic Threshold, Tenant may nonetheless deliver a Deletion
Request to Landlord. If such Deletion Request sets forth a commercially
reasonable basis for Tenant's claim that the cure of such violation would be
Uneconomic, Landlord shall not unreasonably withhold its consent to treating the
cure of such violation as one which exceeds the Uneconomic Threshold. Anything
to the contrary contained herein notwithstanding, with respect to any Property
owned in fee by Landlord or the Power Test Lessor, Tenant shall have no right to
deliver a Deletion Request or otherwise refrain from curing an Eligible Legal
Violation because curing the same would be Uneconomic at any time after the
fourth (4th) anniversary of the Restatement Effective Date.
(c) Cure; Third Party Leases. Notwithstanding anything to the
contrary contained herein, if an Eligible Legal Violation (the definition of
which term shall be deemed modified for the purpose of this Section 25.2(c) to
refer to a Major Violation relating to a Property owned in fee by a Third Party
Lessor) or preexisting maintenance condition exists with respect to any Property
owned by a Third Party Lessor and if the Government or another third party is
then actively requiring the cure of such Eligible Legal Violation or preexisting
maintenance condition, then Tenant may, at its election, cure such Eligible
Legal Violation or preexisting maintenance condition. If Tenant elects to so
cure, then the expenses incurred in effecting such cure shall be allocated
pursuant to the provisions of clauses 25.2.1 through 25.2.3 (except that Tenant
shall have the right to cure such Eligible Legal Violation at its sole cost and
expense as set forth in Section 25.2(a)), it being understood that Landlord
shall in no event be obligated to pay more than $1,3750,000 in aggregate in
connection with its contribution obligations pursuant to this Section 25.2. If
Tenant elects not to cure, Tenant must provide Landlord with Notice of such
election within thirty (30) days after receipt of notice of such Eligible Legal
Violation or preexisting maintenance condition. Upon Landlord's receipt of such
Notice, Landlord shall, within thirty (30) days of receipt of such Notice,
provide Notice to Tenant as to whether Landlord will cure such Eligible Legal
Violation or preexisting maintenance condition and shall begin to diligently
prosecute the cure of the same. Any sums
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expended by Landlord in connection with curing an Eligible Legal Violation
pursuant to the preceding sentence shall in no event be deemed to be or
considered amounts expended by Landlord in connection with its obligation under
Section 25.2.2. If Landlord elects to and so cures such Eligible Legal Violation
or such preexisting maintenance condition, then Landlord shall continue to
sublease such Property to Tenant on all the terms and conditions set forth in
this Restated Lease. If, however, Landlord fails to respond to Tenant's Notice
of election not to cure within thirty (30) days of receipt of the same or if
Landlord fails to commence to cure and continue to diligently pursue such
Eligible Legal Violation or such preexisting maintenance condition within such
thirty-day period, then, as of the date which is sixty (60) days after Tenant
delivers its Notice of election not to cure, the applicable Property shall be
deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to
reflect such deletion in accordance with the Fixed Rent Adjustment Procedures,
the amounts held pursuant to this Restated Lease on account of advanced Real
Estate Tax payments pursuant to Article 4 shall be adjusted accordingly, and
Landlord shall pay Tenant Lease Termination Damages with respect to the deletion
of such Property. The rights of Landlord and Tenant pursuant to this Section
shall continue in full force and effect until the expiration or earlier
termination of this Restated Lease.
25.3 Violation of Environmental Law. In the event that any violation of
Environmental Law exists with respect to any Property as of the Restatement
Effective Date whether or not any party shall have received notice of or
otherwise become aware of such violation (such violation being referred to
herein as a "Preexisting Environmental Violation"), the following provisions
shall apply. The mere existence of any such Preexisting Environmental Violation
shall not cause Tenant to be in default under this Restated Lease. Landlord's
and Tenant's obligations with respect to environmental matters shall be as set
forth elsewhere in this Restated Lease and in the Environmental Agreement.
25.4 No Actions. Except to the extent required by Law or Environmental
Law, neither Landlord nor Tenant shall take any action (i) reasonably likely to
cause an applicable Government or a party other than the other party hereto to
assert a claim seeking Remediation or other activity related to compliance with
Law or Environmental Law, or (ii) to compromise, admit any fact, concede
liability or otherwise materially prejudice Landlord's or Tenant's, as
applicable, ability to defend any actual or potential claim with respect to
compliance with Law or Environmental Law.
26. PERMITTED LEASEHOLD MORTGAGES; RIGHTS OF LEASEHOLD MORTGAGEE.
26.1 Tenant's Right to Mortgage Lease. Notwithstanding anything to the
contrary contained in this Restated Lease or in any Power Test Lease or Fee
Mortgage, but subject to the terms of the Third Party Leases, Tenant, and any
permitted successor or assign of Tenant, may, without Landlord's consent, from
time to time enter into a Permitted Leasehold Mortgage, provided that no more
than two (2) Permitted Leasehold Mortgages may encumber this Restated Lease and
the Leasehold Estate demised hereunder at any time. There shall be no limitation
or restrictions upon the principal amount and other sums secured by any such
Permitted Leasehold Mortgage, and such principal amount or other sums may also
be secured by
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other mortgages, deeds of trust or security agreements. Any Permitted Leasehold
Mortgage shall by its terms be made expressly subject to all Landlord's rights
under the provisions, covenants, conditions, exceptions and reservations herein
contained. Landlord shall not be bound to recognize Leasehold Mortgagee or to
deliver to same any Notice required under the terms of this Restated Lease
unless and until Leasehold Mortgagee and Tenant shall have notified Landlord in
writing pursuant to Article 20 hereof of the existence of its Permitted
Leasehold Mortgage and of the name and address of Leasehold Mortgagee.
26.2 Rights of Leasehold Mortgagee. Landlord hereby agrees with and for
the benefit of Leasehold Mortgagee that from and after the date that it delivers
to Landlord the Notice referred to in Section 26.1 hereof, subject to the rights
of Third Party Lessors:
26.2.1 Cancellations, Modifications. Except as otherwise provided
in this Restated Lease, no cancellation, surrender, acceptance of
surrender, or modification of this Restated Lease (provided, however,
that Leasehold Mortgagee's consent shall not be required if such
modifications do not materially increase Tenant's obligations or
decrease Tenant's rights hereunder) shall be binding upon Leasehold
Mortgagee or affect the lien of the Permitted Leasehold Mortgage
thereof, without the prior written consent of Leasehold Mortgagee.
26.2.2 Notice and Demands. No Notice which shall be given by
Landlord to Tenant shall be effective unless a copy of said Notice
shall be given to Leasehold Mortgagee within the time when such Notice
shall be required or permitted to be given. In the case of an
assignment of the Permitted Leasehold Mortgage (which may only be to
another Permitted Leasehold Mortgagee) or change in address of
Leasehold Mortgagee, the assignee thereof or Leasehold Mortgagee, by
Notice to Landlord, may change the address to which copies of Notices
are to be sent as herein provided. All Notices and copies of Notices to
be given to Leasehold Mortgagee as provided in this Article 26 shall be
given in the same manner as is provided in this Restated Lease in
respect of Notices to be given by Landlord or Tenant and shall be
addressed to Leasehold Mortgagee in accordance with instructions given
from time to time by Leasehold Mortgagee to Landlord and Tenant
pursuant to Notice as provided in Section 26.1 hereof.
26.2.3 Performance of Lease by Leasehold Mortgagee. If Tenant
defaults in respect of any provisions of this Restated Lease, Leasehold
Mortgagee shall have the right, but not the obligation, to cure such
Default whether same consists of the failure to pay Rent or the failure
to perform any other matter or thing which Tenant is required to do or
perform under this Restated Lease, and Landlord shall accept
performance by or on behalf of Leasehold Mortgagee as though, and with
the same effect as if, it had been done or performed by Tenant.
Leasehold Mortgagee will have a period of time after the service of
Notice of such Default upon it within which to cure or cause to be
cured the Default specified in such Notice which period of time is the
same period for cure, if any, as given to Tenant in respect of the
specified Default after the giving of Notice of such
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Default to Tenant, plus (without waiving any late charges or default
interest) an additional period of fifteen (15) Business Days in the
case of a Material Monetary Default and a Non-Material Monetary Default
and thirty (30) Business Days in the case of all Non-Monetary Defaults.
26.2.4 Possession by Leasehold Mortgagee. If, in order to cure any
Non-Monetary Default by Tenant, Leasehold Mortgagee must have
possession of or control over the Premises, such Non-Monetary Default
will be deemed not to exist until Leasehold Mortgagee has had a
reasonable opportunity to commence and with reasonable diligence to
complete foreclosure or take other appropriate actions to acquire
possession of and control over the Premises, but upon the condition
that Leasehold Mortgagee shall during the pendency of any such
foreclosure or other proceedings pay or cause to be paid to Landlord,
when and as it shall become due the Rent provided for in this Restated
Lease and cure all other Non-Monetary Defaults which are reasonably
susceptible of cure by Leasehold Mortgagee. Leasehold Mortgagee shall
not be required to commence or continue any foreclosure or other
proceedings or to obtain or continue possession of the Premises, except
as specified above as a prerequisite for exercise or preservation of
Leasehold Mortgagee's rights and for Landlord's delay in claiming a
Non-Monetary Default.
26.2.5 Personal Defaults. Anything contained in this Section 26.2
to the contrary notwithstanding, any Non-Monetary Default of Tenant
which is not reasonably susceptible of being cured by Leasehold
Mortgagee even after Leasehold Mortgagee has obtained possession of and
control over the Premises shall be deemed to have been waived by
Landlord upon completion of foreclosure proceedings or when Leasehold
Mortgagee, or its nominee or another shall otherwise acquire title to
Tenant's interest in this Restated Lease, provided that up through the
time of such completion of acquisition of title, all Material Monetary
Defaults, Non-Material Monetary Defaults and Non-Monetary Defaults
reasonably susceptible of cure are cured in a timely manner. Any
Non-Monetary Default which is reasonably susceptible of being cured
after such completion or acquisition shall thereafter be cured with
reasonable diligence.
26.3 Noncurable Non-Monetary Default. In case of a Non-Monetary Default
which is not susceptible of being cured by Leasehold Mortgagee without acquiring
title to the Premises, Leasehold Mortgagee shall institute and prosecute to
completion foreclosure proceedings or acquire Tenant's estate hereunder, either
in its own name or through a nominee, by assignment in lieu of foreclosure.
Leasehold Mortgagee shall not be required to continue to prosecute foreclosure
proceedings if and when such Non-Monetary Default shall be cured. If Leasehold
Mortgagee, or its nominee, or a purchaser at a foreclosure sale, shall acquire
title to the Leasehold Estate, and shall cure all Non-Monetary Defaults of
Tenant hereunder which can be cured by Leasehold Mortgagee, or by said
purchaser, as the case may be, then the Non-Monetary Defaults of any prior
holder of Tenant's Leasehold Estate hereunder which cannot be cured by Leasehold
Mortgagee (or by said purchaser), as are listed on Schedule 9, shall no longer
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be deemed to be Non-Monetary Defaults hereunder, provided that up through the
time of such acquisition of title, all Material Monetary Defaults, Non-Material
Monetary Defaults and Non-Monetary Defaults reasonably susceptible of cure are
cured in a timely manner.
26.4 Delegation of Tenant's Rights. Tenant may delegate irrevocably to
Leasehold Mortgagee the authority to exercise any or all of Tenant's rights
under this Restated Lease, but no such delegation shall be binding upon Landlord
unless and until either Tenant or such empowered Leasehold Mortgagee shall
deliver to Landlord a signed counterpart of a written instrument effecting such
delegation. Such delegation of authority may be effected by the terms of the
Permitted Leasehold Mortgage itself, in which case the service upon Landlord of
an executed counterpart of said Permitted Leasehold Mortgage in accordance with
this Section 26.4, together with a written Notice from Tenant and Leasehold
Mortgagee specifying the provisions therein which delegate such authority to
said Leasehold Mortgagee, shall be sufficient to give Landlord Notice of such
delegation. Any provision of this Restated Lease which gives to Leasehold
Mortgagee the privilege of exercising a particular right of Tenant hereunder on
condition that Tenant shall have failed to exercise such right shall not be
deemed to diminish any privilege which Leasehold Mortgagee may have, by virtue
of a delegation of authority from Tenant, to exercise such right without regard
to whether or not Tenant shall have failed to exercise such right.
26.5 Assignment/Sale. Notwithstanding the terms and provisions of
Article 16 hereof, Leasehold Mortgagee or other acquirer of the Leasehold Estate
pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings
may, upon acquiring Tenant's Leasehold Estate, without further consent of
Landlord, sell and assign the Leasehold Estate on such terms and to such persons
and organizations as are acceptable to Leasehold Mortgagee or acquirer and
reasonably acceptable to Landlord, and thereafter be relieved of all obligations
arising under this Restated Lease subsequent to such sale or assignment;
provided that such assignee has delivered to Landlord its written agreement to
be bound by all of the provisions of this Restated Lease. Notwithstanding
Article 16 or any other provisions of this Restated Lease, any sale of this
Restated Lease and of the Leasehold Estate in any proceedings for the
foreclosure of a Permitted Leasehold Mortgage, or the assignment or transfer of
this Restated Lease and of the Leasehold Estate in lieu of the foreclosure of
such Permitted Leasehold Mortgage shall be deemed to be a permitted sale,
transfer or assignment of this Restated Lease and of the Leasehold Estate.
26.6 Termination of Lease; New Lease to Mortgagee.
26.6.1 If this Restated Lease shall terminate by reason of a
Material Monetary Default of Tenant hereunder, Landlord shall give
written Notice to Leasehold Mortgagee that this Restated Lease has been
terminated, together with a statement of any and all sums which would
at that time be due under this Restated Lease but for such termination,
and of all other Defaults, if any, under this Restated Lease then known
to Landlord. Leasehold Mortgagee, by written Notice to Landlord given
within thirty (30) days of such termination, and provided it was
precluded from curing such Material Monetary Default prior to the
termination of this Restated Lease and has since cured all such
Defaults other
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than those Non-Monetary Defaults which are not susceptible of cure by
Leasehold Mortgagee, thereupon may request Landlord to enter into a new
lease of the Premises pursuant to this Section, and Landlord shall
enter into a new lease with Leasehold Mortgagee (or its nominee),
within thirty (30) days after the giving of said written Notice by
Leasehold Mortgagee. Said new lease shall commence and rent and all
obligations of the Tenant under the new lease shall accrue, as of the
date of termination of this Restated Lease. The term of said new lease
shall continue for the period which would have constituted the
remainder of the Term of this Restated Lease had this Restated Lease
not been terminated and shall be upon all of the terms, covenants,
conditions, conditional limitations, and agreements contained herein
which were in force and effect immediately prior to the termination of
this Restated Lease. Said new lease, and this covenant, shall be
superior to all rights, liens, and interests, other than those to which
this Restated Lease shall have been subject immediately prior to
termination and those matters to which this Restated Lease may, by its
terms, become subject. The provisions of the immediately preceding
sentence shall be self-executing, and Landlord shall have no obligation
to do anything, other than to execute said new lease as herein
provided, to assure to Leasehold Mortgagee or to the Tenant under the
new lease good title to the leasehold estate granted thereby.
26.6.2 Leasehold Mortgagee shall, simultaneously with the delivery
of the new lease, pay to Landlord (1) all Rent and other sums of money
due under this Restated Lease on the date of termination of this
Restated Lease and remaining unpaid; plus (2) all rent and other sums
of money due under the new lease for the period from the date of
commencement of the term thereof to the date of delivery of the new
lease; plus (3) all costs and expenses, including Legal Costs, incurred
by Landlord in connection with termination of this Restated Lease, the
recovery of possession of the Premises, and the preparation, execution
and delivery of said new lease. Simultaneously therewith, Landlord
shall pay over to Leasehold Mortgagee any rentals, less costs and
expenses of collection, received by Landlord between the date of
termination of this Restated Lease and the date of execution of said
new lease, from Subtenants or other occupants of the Premises which
shall not theretofore have been applied by Landlord towards the payment
of Rent or any other sum of money payable by Tenant hereunder or
towards the cost of operating the Premises or performing the
obligations of Tenant hereunder.
26.6.3 If Leasehold Mortgagee shall exercise its right to obtain a
new lease pursuant to this Section 26.6, but Leasehold Mortgagee or its
nominee shall fail to execute such a new lease when tendered by
Landlord, or shall fail to comply timely with the other provisions of
this subdivision, then said Leasehold Mortgagee shall have no further
rights to a new lease or any other rights hereunder.
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26.7 Landlord's Right to Payment. Nothing in this Article shall be
construed to relieve Leasehold Mortgagee or its designee of the obligation to
pay any monetary amounts required to be paid under this Restated Lease by the
Tenant to the extent that Leasehold Mortgagee elects not to cancel this Restated
Lease or elects to enter into a new lease.
26.8 Rejection in Bankruptcy. If Tenant exercises any election to
reject this Restated Lease pursuant to the United States Bankruptcy Code,
Leasehold Mortgagee shall have the option to enter into a new lease pursuant to
the terms and conditions of Section 26.6.
26.9 Conflicts Among Leasehold Mortgagees. If more than one Leasehold
Mortgagee desires to exercise any rights or protections pursuant to this Article
26, Landlord shall be required to recognize only the Leasehold Mortgagee whose
Permitted Leasehold Mortgage is senior in lien (as against the other Permitted
Leasehold Mortgage). Priority of Permitted Leasehold Mortgages shall be
conclusively evidenced by written agreement among the Leasehold Mortgagees or,
if the Leasehold Mortgagees cannot agree, a report or certificate of a title
insurance company (reasonably acceptable to Landlord) licensed to do business in
the State of New York. Neither Tenant nor Landlord shall be obligated to
determine the relative priorities of any Leasehold Mortgages. No time period
that applies to any Leasehold Mortgagee's exercise of any rights or protections
shall be tolled pending the determination of priority of Leasehold Mortgagees.
26.10 Limited Waiver. Notwithstanding any provision in this Restated
Lease to the contrary, under no circumstances shall Landlord be required to
refrain from exercising any of its rights hereunder if Leasehold Mortgagee has
not cured an Event of Default which (i) may expose Landlord to criminal or civil
liability, (ii) may materially jeopardize the value or ability to operate the
Premises or any material part thereof, (iii) may result in the termination of a
Third Party Lease, Fee Mortgage or other material agreement relating to the use
or occupancy of the Premises or (iv) creates a dangerous or unsafe condition at
the Premises. Notwithstanding the foregoing, nothing contained herein shall in
any way limit or affect the right of Leasehold Mortgagee or its nominee to
obtain a new lease pursuant to the provisions of Section 26.6 if this Restated
Lease is terminated pursuant to this Section.
27. PERMITTED EXCEPTIONS. Landlord represents and warrants to Tenant that,
as of the date hereof, the Permitted Exceptions do not and would not have a
material adverse effect on the value of the Premises taken as a whole.
28. SINGLE LEASE. Tenant hereby acknowledges that the agreement between
Landlord and Tenant to treat this as single lease in all respects, was and is of
primary importance to Landlord, and Landlord would not have entered into this
Restated Lease without there being such an agreement and such treatment of this
Restated Lease. All rights and obligations under this Restated Lease relating to
the Premises shall apply to all Properties and any Default under this Restated
Lease pertaining to a single or to multiple Properties shall be an Event of
Default pertaining to the Premises. Without limiting the generality of the
foregoing, the parties hereto acknowledge that this Restated Lease constitutes a
single lease of the Premises and is not divisible notwithstanding any references
herein to any individual Property and notwithstanding
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the possibility that certain individual Properties may be deleted herefrom
pursuant to the express provisions of Article 13, 14, 15, 22 and 25 of this
Restated Lease under certain limited circumstances. The parties hereto expressly
intend that this Restated Lease, notwithstanding the possibility that certain
individual Properties may be deleted herefrom under certain limited
circumstances expressly provided for in Article 13, 14, 15, 22 and 25 of this
Restated Lease, be treated as a single lease for all purposes whatsoever,
including, without limitation, Renewal Options, Permitted Leasehold Mortgages,
any assignment of the Leasehold Estate by Tenant (as approved by Landlord), and
in the context of Tenant's attempted rejection, assumption and/or assignment of
this Restated Lease in any bankruptcy or other insolvency proceeding affecting
Tenant, in which case the parties hereto intend for such rejection to terminate
this Restated Lease with respect to all but not less than all of the Premises or
such assumption to apply with respect to the Premises, i.e. all but not less
than all of the Properties. This Restated Lease does not constitute, and may not
be enforced or treated as, a separate lease for any individual Property.
29. REPORTING.
29.1 Property-Level Reporting. Tenant shall, as soon as practicable,
and in any event within sixty (60) days after the end of each fiscal quarter,
furnish to Landlord and any Fee Mortgagee a profit and loss statement for each
of the Properties as of and for the quarterly period then ended and for the year
to date, certified by Tenant through one of its executive officers.
Notwithstanding the foregoing, if (a) any such Properties are subject to the
tenancy of a lessee-dealer and (b) such profit and loss statements are not
reasonably available to Tenant with respect to such Properties, then Tenant
shall, as soon as practicable, and in any event within sixty (60) days after the
end of each fiscal quarter, instead furnish to Landlord and any Fee Mortgagee a
statement that sets forth (i) the volume of gas sales in gallons, (ii) inside
store sales for those Properties where percentage rents are required under Third
Party Leases and at all other Properties to the extent available to Tenant,
(iii) itemized expenses to the extent available to Tenant and (iv) rental and
other income received with respect to such Property as and for the quarterly
period then ended and year to date, prepared in accordance with GAAP,
consistently applied, and certified by Tenant through one of its executive
officers.
29.2 Tenant Reporting. Tenant shall deliver to Landlord, for Landlord's
information, Tenant's financial information (a) if and when publicly available
pursuant to the reporting requirements of any jurisdiction, in the form made
publicly available pursuant to such reporting requirements or (b) if not
publicly available, within 150 days after the end of each fiscal year,
consisting of Tenant's balance sheet, income statement and statement of changes
in cash flow, in either case prepared in accordance with GAAP, consistently
applied. In the event that such financial information provided pursuant to
clause (b) above has been certified by an independent certified public
accountant, at the time Tenant delivers its financial information pursuant to
the preceding sentence, Tenant shall also deliver to Landlord a copy of such
certified financial information. If such financial information is not so
certified, it shall be certified by Tenant through one of its executive
officers. With respect to any information that is not publicly available,
Landlord agrees to keep such financial information strictly confidential.
Notwithstanding the foregoing, Landlord may use or disclose such financial
information to any bank or other financial institution that is considering
providing financing to Landlord, provided
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that (i) Landlord provides Tenant with reasonable advanced Notice of the
identity of the financial institution it plans to provide with such financial
information, (ii) such financial institution agrees to keep such information
confidential, and (iii) in Tenant's reasonable judgment, such financial
institution is not in competition with Tenant.
30. REPRESENTATIONS, WARRANTIES AND COVENANTS.
30.1 Landlord's Representations, Warranties and Covenants. To induce
Tenant to enter into this Restated Lease and to lease the Premises, and to pay
the Rent hereunder, Landlord hereby makes the following representations,
warranties and covenants with respect to the Premises as of the date hereof,
upon each of which, together with the representation contained in Section 9.3,
Landlord acknowledges and agrees that Tenant is entitled to rely and has relied:
30.1.1 Organization and Power. Landlord is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to transact business in all
jurisdictions where such qualification is necessary to comply with its
obligations under this Restated Lease and has all requisite powers and
all material governmental licenses, authorizations, consents and
approvals to carry on its business as now conducted and to enter into
and perform its obligations hereunder and under any document or
instrument required to be executed and delivered on behalf of Landlord
hereunder.
30.1.2 Authorization, Execution and Delivery. This Restated Lease
has been duly authorized by all necessary action on the part of
Landlord, has been duly executed and delivered by Landlord, constitutes
the valid and binding agreement of Landlord and is enforceable in
accordance with its terms except to the extent that enforcement hereof
may be limited by (a) bankruptcy, reorganization, moratorium,
fraudulent conveyance, or similar laws now or hereafter in effect
relating to creditors' rights generally, and (b) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
30.1.3 Non-contravention. The execution and delivery of, and the
performance by Landlord of its obligations under, this Restated Lease
do not and will not contravene, or constitute a default under, any
provision of (i) the current articles of incorporation and bylaws of
Landlord including and all amendments thereto (the "Landlord's
Organizational Documents") true and complete copies of which have been
delivered to Tenant prior to the execution of this Restated Lease, or
(ii) Laws or any agreement, judgment, injunction, order, decree or
other instrument binding upon Landlord or to which the Premises is
subject, the result of which could have a material adverse effect on
the value of the Premises or Landlord's ability to lease the Premises
to Tenant and/or Landlord's ability to perform its obligations under
this Restated Lease.
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30.1.4 Compliance with Existing Laws. To the best of Landlord's
knowledge, Landlord has not received any written notice of violation of
any Law from any Government with respect to any Property which would be
reasonably expected to have a materially adverse effect on the value of
such Property or the conduct of Tenant's business thereof, except as
set forth on Schedule 6, some of which may not have such a materially
adverse effect.
30.1.5 Intentionally Omitted.
30.1.6 Condemnation Proceedings. To the knowledge of Landlord,
there is not pending any Condemnation with respect to a Property
involving payments likely to be in excess of $100,000, except as set
forth on Exhibit L.
30.1.7 Actions or Proceedings. To the best of Landlord's
knowledge, there is no action, suit or proceeding pending against or
affecting Landlord or any Property, which, if determined adversely to
Landlord, would have a material adverse effect on the value of such
Property or the conduct of Tenant's business thereat, except as set
forth in Schedule 14, Schedule 6, Schedule 7, and Exhibit L.
30.1.8 Title to Premises. Landlord holds good and marketable fee
or leasehold title, as applicable, to the Premises, subject to the
Permitted Exceptions.
30.1.9 Title to Personal Property. None of the Personal Property
located on the Premises is owned by Landlord.
30.1.10 Title to Improvements. All Improvements located on the
Premises are owned by Landlord, the Power Test Lessor or a Third Party
Lessor, except to the extent included as "Fixed Assets" on Tenant's
balance sheet as of the date hereof.
30.1.11 Third Party Lease Box. There are no Third Party Leases in
effect with respect to any of the Properties other than the Third Party
Leases listed on Exhibit H. To the best of Landlord's knowledge, true,
complete and correct copies of substantially all of the Third Party
Leases have been made available to Tenant by Landlord prior to the date
hereof. On or prior to the Restatement Effective Date, Landlord shall
deliver to Tenant true, complete and correct copies of all Third Party
Leases and shall furnish Tenant with a certificate of Tenant certifying
that it has so delivered the Third Party Leases (the "Lease Box
Certificate"). If (a) there is a discrepancy between the Third Party
Lease documents made available to Tenant as of the date hereof and the
ones delivered with the Lease Box Certificate, and/or (b) the Lease Box
Certificate is untrue, then under no circumstances may Landlord declare
a Default under this Restated Lease by reason of Tenant's failure to
comply with any Third Party Lease resulting from any such discrepancy
and/or a breach of the Lease Box Certificate (a "Lease Box Breach"),
which default did not otherwise constitute a default under this
Restated Lease and (i) if as a result of such Lease Box Breach, the
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Third Party Lease is terminated, Tenant shall be entitled to Lease
Termination Damages, and the applicable Property shall be deleted from
this Restated Lease, Fixed Rent shall be adjusted in accordance with
the Fixed Rent Adjustment Procedures, and the amounts held pursuant to
this Restated Lease on account of advanced Real Estate Tax payments
pursuant to Article 4 shall be adjusted accordingly, or (ii) if, as a
result of any such Lease Box Breach, Tenant suffers any damages, losses
or expenses, Landlord shall Indemnify Tenant therefor.
30.1.12 Third Party Leases. To the best of Landlord's knowledge,
each of the Third Party Leases is valid and subsisting and in full
force and effect in accordance with its terms and constitutes the
legal, valid, binding and enforceable obligation of the parties
thereunder, subject to general principles of equity and laws relating
to bankruptcy, reorganization, moratorium, fraudulent conveyance, or
similar laws now or hereafter in effect relating to creditors' rights
generally. To the best of Landlord's knowledge, (a) Landlord has not
received any written notice of default with respect to any Third Party
Lease from any Third Party Lessor, which default remains uncured as of
the date hereof, except as set forth in the last item of Schedule 14,
and (b) neither a Third Party Lessor nor Landlord is in default of any
of its material obligations under a Third Party Lease.
30.1.13 Third Party Lease Renewals. Set forth on Schedule 15 is a
list of each Property subject to a Third Party Lease for which Landlord
has recently exercised its option to renew the applicable Third Party
Lease.
30.1.14 Power Test Leases. There are no Power Test Leases in
effect with respect to any of the Properties other than the Power Test
Leases listed on Exhibit G. True, complete and correct copies of
certain Power Test Leases have been made available to Tenant by
Landlord prior to the date hereof. Those Power Test Leases which have
not been made available to Tenant by Landlord prior to the date hereof
are substantially identical in all material respects to the Power Test
Leases that have been made available to Tenant, except with respect to
the location and rent. Each of the Power Test Leases is valid and
subsisting and in full force and effect in accordance with its terms
and constitutes the legal, valid, binding and enforceable obligation of
the parties thereunder, subject to general principles of equity and
laws relating to bankruptcy, reorganization, moratorium, fraudulent
conveyance, or similar laws now or hereafter in effect relating to
creditors' rights generally. Landlord has not received any written
notice of default with respect to any Power Test Lease from any Power
Test Lessor, which default remains uncured as of the date hereof, and
neither Landlord nor the Power Test Lessor is in default of any of its
obligations under a Power Test Lease.
30.1.15 Real Estate Taxes. All Real Estate Taxes due and payable
from the Commencement Date through to the date hereof have been paid.
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30.1.16 Insurance Requirements. If Tenant complies with the
insurance requirements contained in this Restated Lease, Landlord will
not be in default under any Third Party Lease or Power Test Lease with
respect to the insurance requirements contained therein.
30.1.17 Fee Mortgages. The Fee Mortgages encumbering Landlord's
interest in the Fee Estate are as set forth on Exhibit I, and Fee
Mortgages encumbering the Power Test Lessor's interest in the Fee
Estate are as set forth on Exhibit M.
30.2 Tenant's Representations And Warranties. To induce Landlord to
enter into this Restated Lease and to lease the Premises to Tenant, Tenant
hereby makes the following representations and warranties, upon each of which
Tenant acknowledges and agrees that Landlord is entitled to rely and has relied:
30.2.1 Organization and Power. Tenant is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Maryland, and is qualified to transact business in all
jurisdictions where such qualification is necessary to comply with its
obligations under this Restated Lease and has all requisite powers and
all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and to
enter into and perform its obligations under this Restated Lease and
any document or instrument required to be executed and delivered on
behalf of Tenant hereunder.
30.2.2 Authorization, Execution and Delivery. This Restated Lease
has been duly authorized by all necessary action on the part of Tenant,
has been duly executed and delivered by Tenant, constitutes the valid
and binding agreement of Tenant and is enforceable in accordance with
its terms except to the extent that enforcement hereof may be limited
by (a) bankruptcy, reorganization, moratorium, fraudulent conveyance,
or similar laws now or hereafter in effect relating to creditors'
rights generally, and (b) general principals of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity).
30.2.3 Non-contravention. The execution and delivery of, and the
performance by Tenant of its obligations under, this Restated Lease do
not and will not contravene, or constitute a default under, any
provision of (i) the current articles of incorporation and bylaws of
Tenant including and all amendments thereto (the "Tenant's
Organizational Documents") true and complete copies of which have been
delivered to Landlord prior to the execution of this Restated Lease, or
(ii) Laws or any agreement, judgment, injunction, order, decree or
other instrument binding upon Tenant or to which the Premises is
subject, the result of which could have a material adverse effect on
the value of the Premises or
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Tenant's ability to lease the Premises from Landlord and/or Tenant's
ability to perform its obligations under this Restated Lease.
30.3 Survival. No representations, warranties or covenants contained in
this Article 30, including any rights arising out of any breach of such
representation, warranty or covenant, shall in any event survive after the sixth
(6th) anniversary of the Restatement Effective Date.
31. LANDLORD DEFAULT.
31.1 Landlord Default. If Landlord shall fail to perform or observe (a)
any covenant or obligation required to be performed by Landlord hereunder or (b)
any obligation of Landlord, under any Third Party Lease, Power Test Lease or Fee
Mortgage the performance or observance of which is not Tenant's obligation
hereunder, and any such Default referred to in clause (a) or (b) shall continue
for (x) with respect to a monetary Default a period of ten (10) Business Days
after Notice thereof from Tenant and (y) with respect to a non-monetary Default,
thirty (30) Business Days after Notice thereof from Tenant or such longer period
as may be reasonable under the circumstances, then upon Landlord's receipt of a
second Notice from Tenant with respect to such Default, a "Landlord Default"
shall be deemed to have occurred hereunder. Upon the occurrence of any such
Landlord Default, Tenant shall have the right, but not the obligation, to make
such payment or perform such act on Landlord's part that gave rise to such
Landlord Default. In the event that a court of competent jurisdiction enters a
final, non-appealable judgment or order confirming the occurrence of any such
Landlord Default and allowing Tenant to recover the costs incurred by Tenant in
curing such Landlord Default, then Tenant shall have the right to offset against
any payment of Fixed Rent due hereunder an amount equal to the damages suffered
by Tenant as a result of such Landlord Default, as set forth in such final order
or judgement. In the event that Tenant elects to offset any amount against Fixed
Rent in accordance with this Section 31.1, Tenant shall give Landlord Notice of
such election to offset at least twenty (20) days prior to effecting the same,
which Notice shall include the amount of damages set forth in such final order
or judgment, the amount that Tenant plans to offset, and the timing of such
offset. Nothing contained in this Section shall be deemed to limit Tenant's
right to offset Rent pursuant to the express provisions of Section 3.5. Anything
to the contrary contained herein notwithstanding, in no event shall a Landlord
Default shall be deemed to occur if such Default or alleged Default arises
either directly or indirectly from the acts or omissions of Tenant, Subtenant or
their respective agents, contractors, employees, licensees or invitees.
31.2 Dispute. If Landlord shall in good faith dispute the occurrence of
any Landlord Default and Landlord, before the expiration of the applicable cure
period, shall give Notice thereof to Tenant, setting forth, in reasonable
detail, the basis therefor, no Landlord Default shall be deemed to have occurred
and Landlord shall have no obligation with respect thereto until final,
non-appealable adverse determination thereof; provided, however, that in the
event of any such adverse determination, Landlord shall pay to Tenant interest
on any disputed funds at an interest rate equal to six (6) percent per annum,
from the date of demand for such funds was made by Tenant until the date of
payment. If Tenant and Landlord shall fail, in good
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faith, to resolve any such dispute within ten (10) days after Landlord's Notice
of dispute, either may submit the matter for resolution to a court of competent
jurisdiction.
32. MISCELLANEOUS.
32.1 Force Majeure. Each party's obligation to perform or observe any
term, condition, covenant or agreement on such party's part to be performed or
observed pursuant to this Restated Lease (other than any obligation to pay money
when due) shall be suspended during such time as such performance or observance
is prevented or delayed by reason of any Unavoidable Delay.
32.2 Performance Under Protest. If a dispute arises regarding
performance of any obligation under this Restated Lease, the party against which
such obligation is asserted shall have the right to perform it under protest,
which shall not be regarded as voluntary performance. A party that shall have
performed under protest shall have the right to institute appropriate
proceedings to recover any amount paid or the reasonable cost of otherwise
complying with any such obligation, together with interest at the Prime Rate on
funds expended.
32.3 Legal Costs, Generally. If either party prevails in any litigation
or other dispute relating to the enforcement or interpretation of this Restated
Lease or arising from this Restated Lease, a Power Test Lease, a Third Party
Lease or the landlord/tenant relationship under this Lease (as determined by the
judge presiding over such litigation or dispute), then the losing party shall
promptly after Notice (accompanied by reasonable backup documentation),
reimburse the prevailing party's Legal Costs incurred in such litigation or
other dispute. In addition, Tenant shall promptly after Notice (accompanied by
reasonable backup documentation), reimburse Landlord's Legal Costs and other
actual, out-of-pocket expenses incurred by Landlord in exercising Landlord's
remedies against Tenant upon an Event of Default under this Restated Lease or
pursuant to and in any proceeding under the federal bankruptcy code or similar
statute affecting Tenant.
32.4 Access. Except as expressly provided in Section 9.1 of this
Restated Lease, Landlord and its agents, representatives and designees shall
have the right to enter any Property upon reasonable notice to Tenant during
regular business hours (which notice shall, except in the case of emergencies,
be given at least forty-eight (48) hours prior to any such entry), and in
accordance with Tenant's reasonable instructions, for the purpose of complying
with Landlord's specific obligations pursuant to this Restated Lease and for the
purpose of curing Tenant's defaults of which Landlord shall have given Tenant
prior Notice or to exhibit the Premises in connection with the mortgaging or
sale of the Fee Estate in compliance with this Restated Lease. Except as
expressly provided in Section 9.1 of this Restated Lease, in entering any
Property pursuant to this Section, Landlord and its designees shall use
reasonable efforts not to interfere with the conduct of operations on such
Property by Tenant or anyone claiming through Tenant, and shall comply with
Tenant's reasonable instructions. Except as expressly provided in Section 9.1 of
this Restated Lease, Landlord shall Indemnify Tenant against any claims arising
from Landlord's entry upon any Property pursuant to this Section or any other
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provision of this Restated Lease permitting Landlord to enter any Property
(except upon termination of this Restated Lease).
32.5 Vault Space. Any vaults and other areas now existing or
subsequently built extending beyond the building line of any Property are not
included within the Premises, but Tenant may occupy and use the same during the
Term, subject to applicable Laws and payment of all applicable Impositions. No
revocation by any Government of any license or permit to maintain and use any
such vaults shall in any way affect this Restated Lease or the Rent due and
owing hereunder.
32.6 No Third Party Beneficiaries. Nothing in this Restated Lease shall
be deemed to confer upon any person (other than Landlord, Tenant, Third Party
Lessors, the Power Test Lessor, Fee Mortgagees or Leasehold Mortgagee) any right
to insist upon, or to enforce against Landlord or Tenant, the performance or
observance by either party of its obligations under this Restated Lease.
32.7 Amendment; Amendment of Other Agreements. Any modification or
amendment to this Restated Lease must be in writing signed by Landlord and
Tenant. Landlord and Tenant shall not modify or amend this Restated Lease in any
way during the period of time beginning on the date hereof and ending on the
occurrence of the Restatement Effective Date (such period of time being referred
to hereinafter as the "Gap Period") without the consent of Lukoil USA (as
defined hereinafter), which consent shall not be unreasonably withheld. Landlord
shall not modify or amend or allow to be modified or amended any Third Party
Lease or any Power Test Lease in any way during the Gap Period or at any time
thereafter without the consent of Tenant, which consent shall not be
unreasonably withheld. Notwithstanding anything to the contrary contained
herein, to the extent that any such proposed amendment or modification would
decrease Tenant's rights or increase Tenant's obligations hereunder (except by a
de minimis amount), Lukoil USA or Tenant, as applicable, may withhold its
consent in its sole and absolute discretion.
32.8 Partial Invalidity. If any term or provision of this Restated
Lease or the application of such term or provision to any party or circumstance
shall to any extent be invalid or unenforceable, then the remainder of this
Restated Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected by such invalidity. All remaining provisions of this Restated
Lease shall be valid and be enforced to the fullest extent permitted by law.
32.9 Successors and Assigns. This Restated Lease shall bind and benefit
Landlord and Tenant and their successors and assigns, but this shall not limit
or supersede any transfer or similar restrictions contained in this Restated
Lease.
32.10 Recording. At the request of Tenant, Landlord and Tenant will
execute for purposes of recordation in the appropriate recording office a
memorandum or short form of this Restated Lease containing (a) the names of the
parties, (b) a description of the Premises, (c) the term of this Restated Lease,
(d) a statement to the effect that the Related Lease is a single lease demising
the entire Premises and may not be severed, bifurcated, divided or otherwise
split in
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any manner whatsoever, (e) a statement to the effect that any transferee of
Landlord's interest in a Property must enter into a Transferee Lease with
Tenant, and (f) such other provisions as either party may reasonably require.
The cost and expenses of recording the memorandum or short form of this Restated
Lease shall be borne by Landlord or Tenant as set forth in the Transfer Tax
Agreement. Each party agrees that it will not record this Restated Lease in its
entirety unless such a recording is required to protect the rights of Landlord
and Tenant hereunder or applicable law. The aforesaid memorandum of lease shall
be executed and recorded promptly after a form is prepared and delivered by the
requesting party to the other party, which form is reasonably acceptable to the
other party. Landlord shall not grant or record any interest in or encumbrance
upon the fee title to the Premises from the date hereof until such time as the
memorandum of this Restated Lease is recorded. If a new lease is executed
pursuant to Section 26.6, the priority thereof shall be the same recording
priority accorded to the aforesaid memorandum of this Restated Lease, which
shall contain a provision referencing the provisions of Section 26.6. If
requested by the tenant under such new lease, Landlord will execute for
recording a memorandum of the new lease and the holders or trustees, as the case
may be, of any fee mortgage or deed of trust applicable to the Premises shall
execute for recordation a subordination of the recording priority of their
interest to the interest of the tenant under the memorandum of the new lease.
Simultaneously with the execution and delivery of such memorandum, Landlord and
Tenant will execute and deliver to Latham & Watkins a termination of each such
memorandum, in recordable form, which Latham & Watkins shall deliver to Landlord
upon receipt from Landlord of a notice that this Restated Lease has been
terminated with respect to the Premises or with respect to an individual
Property under the specific, limited circumstances provided for in this Restated
Lease.
32.11 Consequential Damages.
Notwithstanding anything to the contrary set forth herein, including
without limitation Section 18.3.2, in no event shall any party hereto have any
liability whatsoever for any consequential damages arising from or allegedly
arising from the actions or omissions of any such party.
33. INTERPRETATION; EXECUTION AND APPLICATION OF RESTATED LEASE.
33.1 Governing Law. This Restated Lease and its interpretation and
performance shall be governed, construed and regulated by the laws of the State
of New York, without regard to principles of conflict of laws.
33.2 Submission to Jurisdiction. Each of Landlord and Tenant hereby
submits to the exclusive jurisdiction of the United Stated District Court for
the Southern District of New York for purposes of all legal proceedings arising
out of or relating to this Restated Lease and the estates and relationships
created hereby. If the parties hereto are unable to submit to the jurisdiction
of the United States District Court for the Southern District of New York
notwithstanding reasonably diligent efforts to do so, then Landlord and Tenant
shall submit to the exclusive jurisdiction of any New York State court sitting
in New York County, New York.
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Each of Landlord and Tenant hereby irrevocably waives, to the fullest extent it
may effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceedings brought in any such court and any claim
that any such proceeding brought in any such court has been brought in an
inconvenient forum.
33.3 Agent for Service of Process. Tenant hereby irrevocably names and
designates each of (i) Lukoil Americas Corporation, a Delaware corporation whose
address is 540 Madison Avenue, New York, New York 10022 ("Lukoil USA"), and (ii)
CT Corporation, 111 Eight Avenue, New York, New York 10011, as Tenant's agent
(either of the entities referred to in clause (i) or (ii) being referred to
hereinafter as Tenant's "Agent") for service of process, including all notices
required to institute any proceeding in any court or in any other way required
to confer personal jurisdiction over Tenant in any court, and for the receipt of
any Notices or other communications required under this Restated Lease,
including personal demands for Rent, and any and all other Notices under this
Restated Lease issued for the purpose of demanding compliance with this Restated
Lease. Service or demand upon either Agent shall be good and sufficient service
and demand upon Tenant for all purposes, including, without limitation, the
purpose of obtaining personal jurisdiction over Tenant for any legal action or
proceeding or for the purpose of commencing any proceeding. Tenant agrees to
take any and all action necessary to continue each Agent's designation in full
force and effect. If either Agent becomes unable to act as Agent for any reason
then Tenant shall forthwith irrevocably designate a replacement Agent satisfying
the requirements of this Section that would apply to any replacement Agent, as
set forth in the next sentence. By Notice to Landlord (but no more frequently
than once every six months), Tenant may substitute in place of either Agent any
other Person having full-time business offices and a street address in
Manhattan. Tenant agrees that delivery of any Notice to either Agent, or any
service of process upon either Agent, in accordance with the notice requirements
of this Restated Lease, shall constitute valid and effective personal service
upon Tenant. Any such Notice or service of process shall be effective in
accordance with the provisions of this Restated Lease relating to Notices. Any
failure of either Agent to give any notice of such service of process or Notice
to Tenant shall not impair or affect the validity of such Notice, service of
process, or any judgment rendered in any proceeding based thereon.
33.4 Counterparts. This Restated Lease may be executed in counterparts.
33.5 Reasonableness. Wherever this Restated Lease grants to either
party the right to consent to or approve of any matter, whether or not this
Restated Lease states that such approval or consent shall not be unreasonably
withheld: (a) such approval or consent shall not be unreasonably withheld,
delayed or conditioned; and (b) no withholding of approval or consent shall be
deemed reasonable unless withheld by Notice specifying reasonable grounds, in
reasonable detail, for such withholding of approval, and indicating specific
reasonable changes in the proposal under consideration that would cause such
proposal to be acceptable. Anything to the contrary contained hereunder
notwithstanding, in the event that Tenant requests Landlord's approval or
consent of any specific matter with respect to which specific matter Landlord or
Tenant must also obtain the approval or consent of a Third Party Lessor and any
such Third Party Lessor refuses to grant its approval or consent, then
Landlord's refusal to grant its approval or
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consent shall be deemed reasonably withheld, delayed and/or conditioned. The
foregoing agreement is not intended to imply that it would be reasonable or
unreasonable for Landlord to withhold its approval or consent to any specific
request made by Tenant if a Fee Mortgagee withholds its approval or consent with
respect to such specific request.
33.6 Interpretation. No inference in favor of or against any party
shall be drawn from the fact that such party has drafted any portion of this
Restated Lease. The parties have both participated substantially in the
negotiation, drafting and revision of this Restated Lease with representation by
counsel and such other advisers as they have deemed appropriate. The words
"include" and "including" shall be construed to be followed by the words:
"without limitation."
33.7 Delivery of Drafts. Neither Landlord nor Tenant shall be bound by
this Restated Lease unless and until each party shall have executed at least one
counterpart of this Restated Lease and delivered such executed counterpart to
the other party. The submission of draft(s) of this Restated Lease or comment(s)
on such drafts shall not bind either party in any way and such draft(s) and
comment(s) shall not be considered in interpreting this Restated Lease.
33.8 Captions. The captions of this Restated Lease are for convenience
and reference only and in no way affect this Restated Lease.
33.9 Restatement Effective Date; Outside Date. Notwithstanding anything
to the contrary contained in this Restated Lease, in the event that the
Restatement Effective Date has not occurred by January 28, 2001, this Restated
Lease shall automatically become null, void and of no force and effect, and the
Original Lease shall continue to be in full force and effect.
33.10 Restatement Effective Date; Estoppel Certificate;
Representations. Upon the occurrence of the Restatement Effective Date, Landlord
shall deliver to Tenant (i) an Estoppel Certificate, which Estoppel Certificate
shall provide, among other things, that, to the best of Landlord's knowledge,
neither Landlord nor Tenant has committed any default under the Original Lease
as of the Restatement Effective Date; (ii) a certificate reaffirming that, in
all material respects, the statements made in Sections 30.1.1, 30.1.2, 30.1.3,
30.1.8, 30.1.9, 30.1.10, 30.1.12, 30.1.14, 30.1.15, 30.1.16, and 30.1.17 of this
Restated Lease are true and correct as of the Restatement Effective Date and as
though made on the Restatement Effective Date, except that the representation
contained in Section 30.1.17 shall be deemed modified to add to the end of such
Section the following: ", except to the extent the Fleet Mortgage shall have
been refinanced during the Gap Period"; and (iii) a certificate containing
representations as of the Restatement Effective Date substantially identical to
those contained in Sections 30.1.4, 30.1.6, 30.1.7, and 30.1.13, except that the
Exhibits and Schedules referred to in such Sections shall, for the purposes of
such certificate, contain such modifications or amendments as may be necessary
to cause the representations contained in such certificate to be true and
correct as of the Restatement Effective Date. Upon the occurrence of the
Restatement Effective Date, Tenant shall deliver to Landlord a certificate
reaffirming that, in all material respects, the statements made in Sections
30.2.1, 30.2.2, and 30.2.3 of this Restated Lease are true and correct as of the
Restatement Effective Date and as though made on the Restatement Effective Date.
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33.11 Entire Agreement; Other Agreements. This Restated Lease contains all the
terms, covenants and conditions relating to Tenant's leasing of the Premises
from and after the Restatement Effective Date. There are no separate
understandings or agreements, oral or written, between Landlord and Tenant
relating to the Premises or Tenant's use or occupancy of the Premises from and
after the Restatement Effective Date, except for the Distribution Agreement, the
Environmental Agreement, the Transfer Tax Agreement, the Personal Property
Letter, and solely to the extent it relates to the Royalty Fee, the License
Agreement. In the event that there is any conflict between the terms and
conditions of this Restated Lease and the Environmental Agreement and the terms
and conditions of the Distribution Agreement, the terms and conditions of this
Restated Lease and the Environmental Agreement shall control.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Restated Lease on the day and year first above written.
LANDLORD:
GETTY PROPERTIES CORP. (f/k/a Getty Realty
Corp.)
By: /s/ John Fitteron
----------------------------------------
Name: John Fitteron
Its: Senior Vice President
GETTYMART INC., as lessee of a Third Party
Lease to some of the Properties, hereby
consents to this Restated Lease.
GETTYMART INC.
By: /s/ John Fitteron
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TENANT:
GETTY PETROLEUM MARKETING INC.
By: /s/ Vincent DeLaurentis
----------------------------------------
Name: Vincent DeLaurentis
Its: President and Chief Operating Officer
KINGSTON OIL SUPPLY CORP., with respect to
certain Properties located in the
Mid-Hudson Valley as set forth on Exhibit H
hereto.
KINGSTON OIL SUPPLY CORP.
By: /s/ Vincent DeLaurentis
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GETTY TERMINALS CORP., with respect to
certain Petroleum Terminal Properties.
GETTY TERMINALS CORP.
By: /s/ Vincent DeLaurentis
----------------------------------------
S-2
