1
EXHIBIT 10.2
MASTER LEASE
DATED
FEBRUARY 1, 1997
BETWEEN
GETTY REALTY CORP., AS LANDLORD,
AND
GETTY PETROLEUM MARKETING INC., AS TENANT
2
TABLE OF CONTENTS
Paragraph Page
1 Definitions............................................ 2
2 Term................................................... 8
3 Rent................................................... 9
4 Additional Payments by Tenant; Impositions............ 10
5 Use................................................... 11
6 Compliance with Law................................... 12
7 Maintenance and Alterations........................... 12
8 Prohibited Liens...................................... 14
9 Hazardous Substances; Environmental Indemnification... 14
10 Indemnification; Liability of Landlord................ 15
11 Right of Contest...................................... 17
12 Insurance............................................. 18
13 Damage or Destruction................................. 20
14 Condemnation.......................................... 20
15 Transfers by Landlord................................. 21
16 Transfers by Tenant; Dealer Leases.................... 22
17 Quiet Enjoyment....................................... 23
18 Default by Tenant; Remedies........................... 24
19 Termination........................................... 28
3
Paragraph Page
20 Notices.......................................................... 28
21 No Broker........................................................ 28
22 Economic Abandonment............................................. 29
23 Third Party Leases............................................... 29
24 Waivers.......................................................... 30
25 Further Assurances; Additional Deliveries........................ 30
26 Miscellaneous.................................................... 31
27 Interpretation; Execution and Application of Lease............... 32
_____________
4
This MASTER LEASE (the "Lease") is made and entered into on February 1, 1997
(the "Commencement Date"), between Getty Realty Corp., a Delaware corporation
whose address is 000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Landlord"),
and Getty Petroleum Marketing Inc., a Maryland corporation whose address is
000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Tenant").
R E C I T A L S
A. Landlord holds good and marketable fee simple absolute title to the
lands described in EXHIBIT A, (the "Land"), together with: (a) all buildings,
structures and other improvements and appurtenances presently located on the
Land; (b) all right, title and interest of Landlord, if any, in and to 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 of Landlord in and to the Land; (d) any strips or gores
adjoining the Land; and (e) all right, title and interest of Landlord, if any,
in and to any furnishings, fixtures, equipment or other personal property
attached or appurtenant to any improvements located on the Land which are not
being transferred to Tenant on the date hereof (all, collectively, together
with the properties set forth in Exhibit B, the "Premises") subject only to the
estates, interests, liens, charges and encumbrances set forth in EXHIBIT C (the
"Permitted Exceptions").
B. Landlord (including certain of its subsidiaries) is the lessee of
certain Premises described in EXHIBIT B (the "Third Party Leases").
C. The Premises consist of Petroleum Terminals and Service Stations.
D. Landlord and Tenant have entered into that certain Reorganization and
Distribution Agreement dated as of _______, 1997 (the "Distribution
Agreement") transferring to Tenant the Marketing Assets and Marketing Business
(as such terms are defined in the Distribution Agreement) in anticipation of a
distribution by Landlord of the common stock of Tenant to the stockholders of
Landlord.
E. In accordance with the Distribution Agreement, Landlord desires to
lease or sublease the Premises to Tenant, and Tenant desires to lease or
sublease the Premises from Landlord, most of which Service Station Premises are
subject to the tenancies of lessee-dealers ("Dealers").
F. The parties desire to enter into this Lease to set forth their rights
and obligations relating to the Premises.
NOW, THEREFORE, in exchange for good and valuable consideration, Landlord
hereby leases and subleases the Premises to Tenant and Tenant hereby takes and
hires the Premises from Landlord, subject only to the Permitted Exceptions, and
the Dealers' tenancies, for the Term (as hereinafter defined), upon the terms
and conditions of this Lease.
1
5
1 Definitions.
The following definitions shall apply throughout this Lease, in addition
to any other definitions elsewhere in this Lease. An Index of Defined Terms
follows the signature page.
1.1 Additional Rent. The term "Additional Rent" means any and all sums
and payments that this Lease requires Tenant to pay to Landlord, except Fixed
Rent. Additional Rent shall also include all Impositions.
1.2 Business Day. A "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.
1.3 Casualty. A "Casualty" means any damage or destruction affecting any
or all structures or other improvements located on the Premises.
1.4 Commencement Date. February 1, 1997 for all Premises, except for
those Premises requiring consent to a sublease from a Third Party Lessor, which
shall commence on such later date upon which consent is obtained.
1.5 Condemnation. A "Condemnation" means any taking of the Premises or
any part of the Premises by condemnation or by exercise of any right of eminent
domain, or by any similar proceeding or act of any Government.
1.6 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 the Premises.
1.7 County. The "County" means the county where the Premises are
located.
1.8 Default. A "Default" means any Monetary Default or Non-Monetary
Default.
1.9 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 acquisition, encumbering or financing of personal property,
fixtures or equipment used in connection with the operation of any business on
the Premises not prohibited by this Lease, any Third Party Lease or any Fee
Mortgage on the Premises, that are leased, purchased pursuant to conditional
sale or installment sale arrangements, encumbered by a security agreement made
by Tenant, or used under licenses, such as convenience food store equipment,
gasoline marketing equipment, UST's, furniture, fixtures and equipment,
telephone, telecommunications and facsimile transmission equipment, point of
sale equipment, televisions, radios, and computer systems, provided that each
2
6
Equipment Lien encumbers or otherwise relates to only the property financed or
otherwise provided by the secured party under such Equipment Lien.
1.10 Environmental Law. The term "Environmental Law" shall mean any Law
related to environmental conditions on, under, or about the Premises, or
arising from use or occupancy of the Premises, including soil, air and ground
water conditions, or governing the use, generation, storage, transportation,
disposal, release, clean-up or control of Hazardous Substances in, on, at, to
or from the Premises.
1.11 Estoppel Certificate. An "Estoppel Certificate" means a statement
in writing containing any or all of the following statements (identifying in
reasonable detail any exceptions that may exist at the time), as requested by
either party: (a) this Lease has not been amended, constitutes the entire
agreement between Landlord and Tenant relating to the Premises, and is in full
force and effect; (b) neither Landlord nor Tenant is in default under this
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, would constitute
defaults under this Lease by Landlord or Tenant; (c) Tenant has paid all Rent
to date; (d) the Commencement Date or any other then-ascertainable date
relevant to this Lease; and (d) such other matters as either party shall
reasonably request.
1.12 Fee Estate. The "Fee Estate" means Landlord's fee estate in the
Premises or any part of the Premises or any direct or indirect interest in such
fee estate or, in the case of Premises owned by a Third Party Lessor, the fee
estate of such Third Party Lessor.
1.13 Fee Mortgage. A "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, as entered into, renewed, modified,
amended, extended or assigned from time to time during the Term.
1.14 Fixed Rent. Fixed Rent shall include all rent payable under
Section 3.1 including Rent payable to Third Party Lessors.
1.15 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.
1.16 Hazardous Substances. The term "Hazardous Substances" shall include
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, and
substances declared to be hazardous or toxic by Environmental Law.
3
7
1.17 Hazardous Substances Discharge. The term "Hazardous Substances
Discharge" shall mean any deposit, spill, discharge, or other release of
Hazardous Substances that occurs at or from the Premises or that arises at any
time from the use, occupancy or operation of the Premises or any activities
conducted therein.
1.18 Impositions. The term "Impositions" means all taxes, special and
general assessments, water rents, rates and charges, commercial rent taxes, UST
fees and taxes, sewer rents and other impositions and charges of every kind and
nature whatsoever with respect to the Premises, that may be assessed, levied,
confirmed, imposed or become a lien on the Premises (other than on account of
any actions or omissions of Landlord or Third Party Lessor or conditions
existing on, at or with respect to the Premises before the Commencement Date)
by or for the benefit of any Government with respect to any period during the
Term together with any taxes and assessments that may be levied, assessed or
imposed by any Government upon the gross income arising from any Rent or in
lieu of or as a substitute, in whole or in part, for taxes and assessments
imposed upon or related to the Premises and commonly known as real estate
taxes. Notwithstanding the foregoing, all such obligations of a lessee in a
Third Party Lease are also Impositions. The term "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, of Landlord, (b) the
incremental portion of any of the items listed in this paragraph 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
Premises before the Commencement Date, (d) any charges that are levied,
assessed or imposed against the Premises 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
Commencement Date, and (e) interest, penalties and other charges with respect
to items "a" through "d."
1.19 Indemnify. Wherever this 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 the owner of the Fee Estate
and their respective partners, officers, directors, agents and employees) and
defend and hold the Indemnitee (and the owner of the Fee Estate and their
respective partners, officers, directors, agents and employees) harmless from
and against any and all loss, cost, claims, liability, penalties, judgments,
damage or other injury, detriment, or expense (including Legal Costs, interest
and penalties) reasonably incurred or suffered by the Indemnitee (and its
partners, officers, directors, agents and employees) on account of the matter
that is the subject of such indemnification or in enforcing the Indemnitor's
indemnity.
1.20 Indemnitee. An "Indemnitee" is a party that is entitled to be
Indemnified pursuant to this Lease.
4
8
1.21 Indemnitor. An "Indemnitor" is a party that agrees to Indemnify
another party pursuant to this Lease.
1.22 Insubstantial Condemnation. An "Insubstantial Condemnation" means
any Condemnation other than a Substantial Condemnation.
1.23 Landlord. Getty Realty Corp. and certain of its subsidiaries, who
have approved this Lease on the signature page hereof.
1.24 Law. The term "Law" or "Laws" means all laws, ordinances,
requirements, orders, directives, rules and regulations of any applicable
Government affecting the development, improvement, alteration, use,
maintenance, operation or occupancy of the Premises or any part of the
Premises, 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 to the Premises.
1.25 Leasehold Estate. The "Leasehold Estate" means Tenant's leasehold
estate under this Lease, upon and subject to all the terms and conditions of
this Lease, and any Third Party Lease affecting the Premises, or any part of
such leasehold estate or any direct or indirect interest in such leasehold
estate.
1.26 Legal Costs. "Legal Costs" means all reasonable costs and expenses
incurred by a party to this Lease in connection with any legal proceeding,
including reasonable attorneys' fees, consultant's fees, court costs, and
expenses.
1.27 Monetary Default. A "Monetary Default" means any failure by Tenant
to pay any Rent or other sum(s) of money, including Additional Rent payable
pursuant to this Lease, when and as required to be paid pursuant to this Lease.
1.28 Non-Monetary Default. A "Non-Monetary Default" means any failure by
Tenant to comply with any terms or provisions of, or perform as required, by
this Lease, other than a Monetary Default.
1.29 Notice. The term "Notice" means any notice, demand, request,
election, designation, or consent, including any of the foregoing relating to a
Default or alleged Default, that is permitted, required or desired to be given
by either party in connection with this Lease. Notices shall be delivered, and
shall become effective, only in accordance with the requirements of Paragraph
20.
1.30 Notice of Default. A "Notice of Default" means any Notice from one
party to the other claiming or giving Notice of a Default or alleged Default by
the recipient.
5
9
1.31 Person. "Person" is an individual, corporation or partnership,
including without limitation, Power Test Realty Company Limited Partnership.
1.32 Petroleum Terminal. "Petroleum Terminal" is a Premises which is a
terminal for the storage and distribution of petroleum products either owned or
leased by Landlord or one of its subsidiaries.
1.33 Premises. Each property listed in Exhibits A and B and,
collectively, all of the properties listed in Exhibits A and B, except for
those properties which may be deleted from time to time by Substantial
Condemnation, or by the expiration of a Third Party Lease or by not exercising
a Renewal Option.
1.34 Prime Rate. The "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: (a) published from time to time in the Wall Street
Journal; (b) announced from time to time by Chase Manhattan Bank, 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 paragraph, the Prime Rate shall never exceed the highest rate of
interest legally permitted to be charged in transactions of the character of
this Lease between parties of a character similar to Landlord and Tenant.
1.35 Prohibited Liens. A "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 (b) is filed against the Leasehold Estate and, upon
termination of this Lease, would under the law of the State attach to the Fee
Estate. Notwithstanding anything to the contrary in this Lease, an Equipment
Lien shall not constitute a Prohibited Lien and nothing in this Lease shall
prohibit Tenant from creating, or require Tenant to remove, any Equipment Lien
except upon termination of this Lease.
1.36 Renewal Option. The right to renew the Lease as provided in Section
2.1 for each Premises individually.
1.37 Rent. The "Rent" means Fixed Rent and Additional Rent.
1.38 Service Station. A Premises which is currently used to sell motor
fuels or convenience store items or both, and in some instances is used for
motor vehicle repairs and/or other services ancillary to the sale of motor
fuels or convenience store items.
1.39 State. The "State" means the State where the Premises are located.
6
10
1.40 Sublease. The term "Sublease" means any sublease of the Premises or
any part of the Premises, or any other agreement or arrangement (including a
license agreement or concession agreement) made by Tenant granting any third
party the right to occupy, use or possess any portion of the Premises. The
leases to the Dealers assigned under Paragraph 16.2 are Subleases.
1.41 Substantial Condemnation. A "Substantial Condemnation" means any
Condemnation that, in Tenant's reasonable judgment, renders the remaining
portion of the Premises unsuitable for the conduct of Tenant's business as a
gasoline service station and/or convenience store or such other permitted,
lawful use 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.
1.42 Subtenant. The term "Subtenant" means any person having rights of
occupancy, use or possession under a Sublease, and any concessionaires and
licensees that Tenant elects to treat as Subtenants. The Dealers are
Subtenants.
1.43 Temporary Condemnation. A "Temporary Condemnation" means a
Condemnation relating to the temporary right to use or occupy the Premises or
any part of the Premises.
1.44 Tenant. Getty Petroleum Marketing Inc. and for certain Premises
located in the Mid-Xxxxxx Valley, Kingston Oil Supply Corp.
1.45 Termination Date. The "Termination Date" means the date when this
Lease terminates or expires (i) for any Premises for which a Renewal Option is
not exercised, (ii) for Third Party Leases upon their expiration date, and
(iii) for all Premises, whether pursuant to the expiration of the Term as
provided for in this Lease or pursuant to Landlord's exercise of remedies upon
occurrence of an Event of Default.
1.46 Third Party Lease. A lease between a Third Party Lessor and Landlord
or a subsidiary of Landlord for the Premises.
1.47 Third Party Lessor. A Person who owns Premises and leases it to
Landlord or a subsidiary of Landlord. Power Test Realty Company Limited
Partnership is a Third Party Lessor.
1.48 Unavoidable Delay. The term "Unavoidable Delay" means a delay in
the performance of any obligation under this 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
7
11
paragraph. In no event shall Unavoidable Delay be deemed to include any delay
caused by a person's financial condition.
1.49 UST. An underground storage tank including related piping,
underground pumps, wiring and their monitoring devices.
1.50 Waiver of Subrogation. A "Waiver of Subrogation" means a provision
in, or endorsement to, any insurance policy required by this Lease, by which
the insurance carrier agrees to waive all rights of recovery by way of
subrogation against either party to this 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 Lease
(the "Initial Term") shall commence on the Commencement Date. The Initial Term
shall continue until 11:59 p.m. on January 31, 2012, unless terminated sooner.
Except as provided in Paragraph 23.3, Tenant shall have the absolute and
unconditional right and option (each such right and option, a "Renewal Option")
to extend and renew this Lease as to any or all of the Premises upon the same
terms and conditions (except for rental) as this Lease, for four (4) additional
successive periods (each, 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 Lease) at least two (2) years before
the first day of the corresponding Renewal Term. Wherever this 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(s). At the expiration or
termination of (i) the Lease as applicable to any Premises and (ii) the final
Renewal Term provided for below, Tenant shall have no further rights to renew
or extend this Lease (x) as it applies to any Premises not previously extended
or renewed and (y) at the expiration of the final Renewal Term. 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 February 1, 2012 and ending on January 31, 2022.
2.1.2 Second Renewal Term. The second Renewal Term shall be for a period
of ten (10) years beginning on February 1, 2022 and ending on January 31, 2032.
2.1.3 Third Renewal Term. The third Renewal Term shall be for a period
of ten (10) years beginning on February 1, 2032 and ending on January 31, 2042.
2.1.4 Fourth Renewal Term. The fourth and final Renewal Term shall be
for a period of ten (10) years beginning on February 1, 2042 and ending on
January 31, 2052.
8
12
2.2. Default by Tenant. Tenant's Renewal Options shall remain effective
notwithstanding Tenant's Default, unless and until all cure periods available
to Tenant shall have expired without cure and Landlord shall have terminated
this Lease. Provided only that this Lease has not been terminated, there shall
be no conditions (express or implied) to Tenant's exercise of any Renewal
Option(s) (except as set forth in Section 23.3 as it pertains to a Third Party
Lease).
2.3 Title to Improvements and Personal Property. Notwithstanding
anything to the contrary in this Lease, except for certain USTs referred to in
Paragraph 7.6, and except for property owned by third parties, all
improvements constructed by Tenant and all personal property and equipment
located in, on or at the Premises 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 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 Initial Term and all
Renewal Terms, Fixed Rent shall be $______ per month all as more fully set
forth in Schedule 1 and as adjusted in this Article 3. The Fixed Rent during
the Initial Term and all Renewal Terms shall be reduced at the time that any
Premises may be deleted from the Lease by Substantial Condemnation, or by the
expiration or termination of a Third Party Lease described in Exhibit B by the
amount of Fixed Rent set forth on Schedule 1(as it may be increased pursuant to
Paragraph 3.1.2) attributable to such deleted Premises. The Fixed Rent during
any Renewal Term shall be reduced by the amount of Fixed Rent set forth on
Schedule 1 (as it may be increased pursuant to Paragraph 3.1.2) attributable to
all Premises for which Renewal Options have not been exercised by Tenant.
3.1.2. CPI Increases. At the end of the fifth (5th) Lease year (in the
first instance, on February 1, 2002) and at the end of each five (5) year
period thereafter during the Term and all Renewal Terms the Fixed Rent in
effect at the end of each such five (5) year period shall be increased by an
amount equal to all increases in the Consumer Price Index, Northeast Region or
the successor index thereto ("CPI"), over the prior five (5) year period (such
CPI increase to be computed on the Fixed Rent in effect for the relevant
January before the February 1 when the increase is to be effective); provided,
however, that in no event shall any one increase exceed fifteen (15%) percent
of the Fixed Rent in effect before the applicable February 1 increase effective
date. If the relevant CPI index is not yet available on any February 1 when an
9
13
increase is to be effective, the Rent will be adjusted retroactively when such
CPI index becomes available.
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 Lease, all Additional Rent within twenty
(20) days after receipt of invoice therefor or as otherwise set forth in
Paragraph 4.
3.4 No Allocation to Personal Property. None of the Rent provided for
under this Lease is allocable to any personal property included in the Premises.
3.5 Offsets. Tenant shall pay all Rent without offset, defense, claim,
counterclaim, reduction, deduction, or exercise of recoupment rights of any kind
whatsoever, except that notwithstanding anything to the contrary in this Lease,
Tenant shall be entitled to offset against Rent an amount equal to any of the
following obligations required to be performed by Landlord to the extent
Landlord fails to perform any such obligation after Notice and demand:
3.5.1 Landlord's obligation pursuant to Paragraph 7.6 to upgrade or
replace the UST's at the locations set forth in Exhibit D, to the extent Tenant
is required to expend monies therefor; and
3.5.2 Landlord's obligation pursuant to Paragraph 7.6 to comply in all
material respects with Environmental Laws at the locations set forth in Exhibit
D and Exhibit E, to the extent Tenant is required to expend monies to achieve
such compliance.
4 Additional Payments by Tenant; Impositions.
4.1 Landlord's Net Return. The parties intend that this 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 Lease. Accordingly, 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 portion of the Premises. Notwithstanding
anything to the contrary in this Lease, Tenant shall not be required to pay any
of the following incurred by Landlord: (a) principal, interest, or other charges
payable under any
10
14
Fee Mortgage; (b) depreciation, amortization, brokerage commissions, financing
or refinancing costs, management fees or leasing expenses incurred by Landlord
with respect to the Fee Estate or the Premises; (c) consulting, overhead,
travel, legal, staff, and other similar costs incidental to Landlord's ownership
of the Premises, other than Legal Costs that Tenant has expressly agreed to pay;
(d) any costs arising from or pursuant to any instrument or agreement affecting
the Premises 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
Paragraphs 7.6 and 9.3.
4.2 Impositions. For any period within the Term (with daily proration for
periods partially within the Term and partially outside the Term), Tenant shall
pay and discharge, before failure to pay the same shall create a material risk
of forfeiture or give rise to a penalty, all Impositions. Tenant shall also pay
all interest and penalties assessed by any Government on account of late payment
of any Imposition, unless such late payment was caused by Landlord's failure to
remit an Imposition (paid to Landlord by Tenant) in accordance with Tenant's
reasonable instructions or Landlord's failure to promptly forward Tenant a copy
of a tax xxxx 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 any
Imposition(s) that this Lease requires Tenant to have paid.
4.3 Assessments in Installments. To the extent that may be permitted by
law or by a Third Party Lease, Tenant shall have the right to apply for
conversion of any assessment to cause it to be payable in installments. After
such conversion, Tenant shall pay and discharge only such installments of such
assessment as shall become due and payable during the Term.
4.4 Direct Payment by Landlord. If any Imposition or other item of Rent
is required to be paid directly by Landlord, then: (a) Landlord appoints Tenant
as Landlord's attorney in fact for the purpose of making such payment; and (b)
if the person entitled to receive such payment refuses to accept it from Tenant,
then Tenant shall give Landlord Notice of such fact and shall remit payment of
such Imposition 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 Tenant's reasonable instructions and shall
Indemnify Tenant against Landlord's failure to do so.
4.5 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 (a) a Service Station Premises for a gasoline service
station/convenience store, and (b) a Petroleum Terminal Premises for the storage
and distribution of petroleum products, and any other lawful purpose but only in
conjunction with the foregoing permitted uses. In using the Premises, Tenant
shall comply with all restrictions and mandates set forth in
11
15
the Permitted Exceptions or a Third Party Lease where applicable. Tenant shall
not have any obligation to actually operate the Premises or otherwise conduct
business of any nature thereon and Tenant may discontinue operation of the
Premises at any time or from time to time except as may be required under a
Third Party Lease, Fee Mortgage or instances where a license(s) or permit(s) or
the continued use may be in jeopardy in which event Tenant shall continue
operation to the extent necessary to protect the license(s) or permit(s), or as
required pursuant to a Third Party Lease or a Fee Mortgage.
6 Compliance with Law.
Tenant shall during the Term, at Tenant's expense: (a) observe and comply
with all Laws affecting the Premises; (b) procure every permit, license,
certificate or other authorization required in connection with the lawful and
proper maintenance, operation, use and occupancy of the Premises or required in
connection with any Construction Work or improvements erected on the Premises
and (c) comply with all such permits, licenses, certificates and other
authorizations. Notwithstanding the foregoing, Tenant shall have the right to
contest any such Laws in accordance with this Lease.
7 Maintenance and Alterations.
7.1 Obligation to Maintain. During the Term, Tenant shall, except as
otherwise expressly provided in this Lease, keep and maintain the Premises and
every portion thereof in good order, condition and repair, subject to Casualty
and Condemnation (governed by separate applicable provisions of this Lease),
reasonable wear and tear, and any other conditions that this Lease does not
require Tenant to repair. Tenant's obligations to maintain the Premises shall
extend to all repairs that the Premises (including plumbing, heating, air
conditioning, ventilating, electrical, lighting, fixtures, walls, roof,
foundations, ceilings, floors, windows, doors, plate glass, skylights,
landscaping, driveways, parking lots, fences and signs located in, on or at the
Premises, together with any sidewalks and parkways adjacent to the Premises) 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 and those Tenant is obligated to perform
under Paragraph 7.6.
7.2 Tenant's Right to Perform Alterations. At Tenant's sole cost and
expense and subject to the provisions of any Third Party Lease or Fee Mortgage,
Tenant shall have the right to perform any Construction Work relating to the
Premises, without Landlord's consent, as Tenant shall consider necessary or
appropriate. Tenant shall perform all Construction Work in a good,
professional, safe, and workmanlike manner, using licensed and insured
contractors 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
12
16
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 paragraph.)
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 Premises, 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 Premises 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 Lease, work of the nature described in clause (a) to the
extent reasonably necessary under the circumstances. Tenant shall not, by
reason of any excavations or work described in this paragraph, have any claim
against Landlord in its capacity as Landlord under this Lease for damages or for
Indemnity or for suspension, diminution, abatement or reduction of any Rent.
7.5 Cooperation by Landlord. Upon Tenant's request, subject to the
provisions of any Fee Mortgage, Landlord shall, without cost to Landlord,
promptly 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 the Premises
(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 Lease,
provided each of the foregoing is in reasonable and customary form and does not
cause the Fee Estate to be encumbered as security for any obligation and does
not otherwise expose the Fee Estate to any material risk of forfeiture during
the Term. Tenant shall reimburse Landlord's Legal Costs and all other
out-of-pocket costs incurred in performing under this paragraph.
7.6 UST'S. Landlord shall retain responsibility for the maintenance and
repair of UST's at the Premises set forth in EXHIBIT D hereto, which UST's are
leased to Tenant hereunder. Tenant shall be responsible for the repair and
maintenance and replacement of all other UST's which were transferred to Tenant
on the date hereof. At the time the replacement or upgrading of the UST's is
completed at the Premises set forth in Exhibit D so that the UST's meet the
requirements of Law effective December 22, 1998, Landlord shall no longer be
responsible for the maintenance, repair or replacement of such UST's and,
except for Landlord's obligation under Paragraph 9.3 to remediate, Tenant shall
be solely responsible therefor. In the event that Tenant exercises the Renewal
Option for the First Renewal Term for certain Premises, under Paragraph 2.1, at
that time Landlord shall by a quitclaim Xxxx of Sale (disclaiming all
warranties, express and implied, including merchantability and fitness) transfer
the UST's under such
13
17
Premises to Tenant for nominal consideration, except that the foregoing shall
not apply to any USTs owned by Third Party Lessors.
8 Prohibited Liens.
8.1 Tenant's Covenant. Tenant shall not suffer or permit any Prohibited
Lien to be filed. If a Prohibited Lien is filed then Tenant shall, within 30
days after receiving Notice from Landlord of such filing (but in any case within
15 days after receipt of Notice from Landlord of commencement of foreclosure
proceedings), commence and then prosecute appropriate action to cause such
Prohibited Lien to be paid, discharged or bonded. Nothing in this Lease shall
be construed to restrict Tenant's right to contest the validity of any
Prohibited Lien and to pursue Tenant's position to a final judicial
determination. The mere existence of a Prohibited Lien shall not be construed
as a default under this Lease unless Tenant fails to take action as aforesaid.
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. Nothing in this 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, the Premises, or any part of the Premises, 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. Tenant shall Indemnify Landlord
against any Construction Work performed on the Premises for or by Tenant,
including any Prohibited Lien arising from such Construction Work.
9 Hazardous Substances; Environmental Indemnification.
9.1 Restrictions. Tenant shall not cause or permit to occur after the
Commencement Date: (a) any material violation of any Environmental Law; or (b)
the use, generation, release, manufacture, refining, production, processing,
storage or disposal of any Hazardous Substance on, under, or about the Premises,
or the transportation to or from the Premises of any Hazardous Substance, except
to the extent that such use (i) is reasonably necessary for the conduct of
Tenant's business in accordance with acceptable industry standards for the
petroleum industry in which Tenant operates and (ii) complies in all material
respects with all applicable Environmental Laws.
9.2 Landlord's Representation. Except for the Premises set forth on
Exhibit D and Exhibit E, Landlord represents and warrants to Tenant that as of
the Commencement Date to the knowledge of Landlord the Premises comply in all
material respects with all Environmental Laws.
14
18
9.3 Compliance; Clean-Up; Environmental Indemnification. Landlord shall
retain responsibility for the ongoing remediations at the Premises, set forth on
EXHIBIT E. Except as provided in the following sentence, Tenant shall, at
Tenant's expense, comply with all applicable Environmental Laws to the extent
such compliance is necessitated by events occurring after the Commencement Date.
Landlord shall, at Landlord's expense, comply with all applicable Environmental
Laws (a) to the extent such compliance is necessitated by events that occurred
before the Commencement Date, and (b) affecting the Premises (i) set forth on
Exhibit D until such time as the UST's have either been replaced or upgraded to
comply with the Law requiring compliance by December 22, 1998 and all
remediation has been completed until such time as Government closure has been
received for such Premises whether or not the Hazardous Substances Discharge
being remediated was discovered during the upgrade or replacement of the USTs,
and (ii) set forth on Exhibit E until all remediation has been completed to
Government closure. Except as expressly set forth hereinabove, any Hazardous
Substances Discharge discovered after the Commencement Date shall be deemed to
be an event that occurred after, and not before, the Commencement Date
notwithstanding the fact that the discharge causing the contamination may have
occurred in whole or in part before the Commencement Date. Any party required
by this paragraph to comply with Environmental Laws (the "Clean-Up Obligor")
shall, at the Clean-Up Obligor's own expense, make all submissions to, provide
all information required by, and otherwise fully comply with all requirements of
any Government arising under Environmental Laws with which such Clean-Up Obligor
is required to comply. If any Government requires any clean-up plan or clean-up
measures on account of Hazardous Substances Discharges for which a Clean-Up
Obligor is responsible, such Clean-Up Obligor shall, at its own expense, prepare
and submit the required plans and all related bonds and other financial
assurances and shall promptly and diligently carry out all such clean-up plans.
Any Clean-Up Obligor shall promptly provide the other party with all information
reasonably requested by such other party regarding the Clean-Up Obligor's use,
generation, storage, transportation or disposal of Hazardous Substances in, at,
or about the Premises and the remediation efforts undertaken.
9.4 Indemnity. Tenant shall Indemnify Landlord against any Hazardous
Substances Discharge for which Tenant is responsible under Paragraph 9.3.
Landlord shall Indemnify Tenant against any Hazardous Substances Discharge for
which Landlord is responsible under Paragraph 9.3.
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 (ii) Landlord, that of any Third Party Lessor ) or its
or their partners, directors, officers, or employees; and (b) any breach or
default by the Indemnitor under this Lease. In addition to and without limiting
the generality of the foregoing indemnity, Tenant shall Indemnify Landlord and
Third Party Lessors against all the following matters (except to the extent any
claim arises from any wrongful act, wrongful
15
19
omission or negligence of Landlord or any Third Party Lessor): (w) the operation
or occupancy of the Premises; (x) any Construction Work performed during the
Term; (y) the condition of the Premises or any street, curb or sidewalk
adjoining the Premises, whether or not such condition existed before the
Commencement Date; or of any vaults, tunnels, passageways or space under,
adjoining or appurtenant to the Premises whether or not such condition existed
before the Commencement Date; and (z) any accident, injury or damage whatsoever
caused to any person occurring during the Term, in or on the Premises or upon or
under the sidewalks adjoining the Premises. Notwithstanding anything to the
contrary in this Lease, neither party shall be required to Indemnify the other
party from or against such other party's intentional acts or negligence. This
paragraph is not intended to cover Environmental Laws and Hazardous Substances
Discharges, which are covered in Paragraph 9.
10.2 Liability of Landlord. Tenant is and shall be in exclusive control
and possession of the Premises during the Term as provided in this Lease.
Landlord shall not be liable for any injury or damage to any property or to any
person occurring on or about the Premises nor for any injury or damage to any
property of Tenant, or of any other person, during the Term. The provisions of
this Lease permitting Landlord to enter and inspect the Premises are intended to
allow Landlord to be informed as to whether Tenant is complying with the
agreements, terms, covenants and conditions of this Lease, and to the extent
permitted by this Lease, to perform such acts required by Landlord under this
Lease and of Tenant as 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 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 Commencement Date.
10.3 Indemnification Procedures. Wherever this 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 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
16
20
any payment whatsoever to the claimant, (y) neither the Indemnitee nor the
Indemnitor acting on behalf of the Indemnitee makes any admission of liability,
and (z) the continued effectiveness of this Lease is not jeopardized in any way.
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 the Lease shall survive the
termination or expiration of the Lease.
11 Right of Contest.
11.1 Tenant's Right. Notwithstanding anything to the contrary in this
Lease, 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 the Premises for purposes of real
estate taxes; the validity of any Law or the application of any Law to the
Premises; or the validity or merit of any claim against which Tenant is required
to Indemnify Landlord under this 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 the
Premises to any risk of imminent forfeiture or Fee Mortgage Foreclosure or
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 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 permit such Contest to be brought in Landlord's name. Tenant shall pay all
reasonable costs and expenses (including Legal Costs) incident to a Contest.
Tenant shall Indemnify Landlord against any Contest brought by Tenant.
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, Tenant shall comply with such final determination.
Landlord shall not enter any objection to any Contest. Tenant's right to contest
any Imposition or the valuation, assessment or reassessment of the Premises 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.
17
21
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 buildings, structures, 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 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
paragraph, subject to the following limitations, which shall be cumulative: (a)
such increased limits shall never exceed the limits initially set forth plus an
increase proportionate to the increase in the consumer price index from the
Commencement Date to the adjustment date, 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 or the Fee Estate.
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 may provide any insurance
required by this Lease pursuant to a "blanket" or "umbrella" insurance policy,
provided that (i) such policy or a certificate of such policy shall specify the
amount(s) of the total insurance allocated to the
18
22
Premises, which amount(s) shall not be subject to reduction on account of claims
made with respect to other properties and (ii) such policy otherwise complies
with this Lease.
12.3 Policy Requirements and Endorsements. All insurance policies
required by this 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 subsidiaries, Third Party Lessors and Fee
Mortgagees.
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 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 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.
12.4 Deliveries to Landlord. Upon Notice to such effect by Landlord,
Tenant shall deliver to Landlord and Third Party Lessors certificates and or
certified copies of the insurance policies required by this Lease, endorsed
"Paid" or accompanied by other evidence that the premiums for such policies have
been paid, at least thirty days before expiration of any then current policy.
12.5 Tenant's Inability to Obtain Insurance. So long as (a) any
insurance required by this Lease should, after diligent effort by Tenant, be
unobtainable at commercially reasonable rates through no act or omission by
Tenant and (b) Tenant shall obtain the maximum insurance reasonably obtainable
and give Notice to Landlord of the extent of Tenant's inability to obtain any
insurance required to be maintained under this Lease, then unless Tenant's
inability to procure and maintain such insurance results from some activity or
conduct not 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 diligent effort, is unable to obtain any insurance required by
this
19
23
Lease, Landlord shall have the right to obtain such insurance and shall charge
the cost of such insurance to Tenant as Additional Rent.
12.6 Waiver of Certain Claims. To the extent that Landlord or Tenant
purchases any hazard insurance relating to the Premises, 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 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 the Premises that
are caused by or result from risks insured against under such insurance
policies, but only to the extent of the available insurance proceeds.
12.7 No Representation of Adequate Coverage. 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. There shall be no abatement or reduction of Fixed Rent
or Additional Rent on account of a Casualty. 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 Lease, all at Tenant's sole cost and expense.
13.2 Adjustment of Claims; Use of Insurance Proceeds. Tenant shall be
solely responsible for the adjustment of any insurance claim. All proceeds of
building or hazard insurance shall be paid to Tenant to be held and applied in
compliance with this Lease.
14 Condemnation.
14.1 Substantial Condemnation. If a Substantial Condemnation of any
Premises shall occur, then this Lease shall terminate as to such Premises as of
the effective date of such Substantial Condemnation, such Premises shall be
deemed to be deleted from Exhibit A or Exhibit B, and the Rent shall be reduced
accordingly. The proceeds of the Substantial Condemnation shall belong
entirely to Landlord or Third Party Lessor, other than such award(s) as Tenant
may be entitled to receive for moving expenses, trade fixtures and the like,
provided
20
24
that such awards to Tenant do not reduce Landlord's share of the award or
conflict with a Third Party Lease.
14.2 Insubstantial Condemnation. If an Insubstantial Condemnation at any
Premises shall occur, then subject to the terms of any Fee Mortgage to the
contrary, any award or awards shall be paid to Tenant to be applied first to
repair, restoration or reconstruction of any remaining part of the improvements
not so taken. If the award(s) for any such Insubstantial Condemnation 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 Lease. The balance of any such award or awards
remaining after the repair, restoration or reconstruction shall be distributed
to Landlord. From and after the effective date of the Insubstantial
Condemnation, Fixed Rent shall 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 the Premises after the Insubstantial Condemnation and whose
denominator is the total value of the Premises 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 Premises, Rent shall not xxxxx and, subject to the terms of any
Fee Mortgage or 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 but creating a right to compensation,
such as the changing of the grade of any street upon which the Premises abut,
then this Lease shall continue in full force and effect without reduction or
abatement of Rent and subject to the terms of any Fee Mortgage or 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. If either party becomes aware of any Condemnation or
threatened or contemplated Condemnation, then such party shall promptly give
Notice thereof to the other party.
15 Transfers by Landlord.
15.1 Landlord's Right to Convey. Landlord shall be entitled to convey the
Fee Estate of any Premises from time to time subject to the terms and conditions
of this Lease. Without limiting Tenant's remedies on account of any such
transaction, if Landlord conveys the Fee Estate in violation of this paragraph,
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
21
25
violating Premises deleted from this Lease. Any conveyance of the Fee Estate
shall not terminate or impair any of the grantor's obligations as Landlord under
this Lease.
15.2 Landlord's Mortgages. This Lease shall be subject and subordinate to
all existing Fee Mortgages. This Lease and the Leasehold Estate hereunder shall
be subject and subordinate to all subsequent Fee Mortgages and the rights of
holders of such Fee Mortgages where a non-disturbance agreement is obtained
whereunder Tenant's rights under this Lease will not be disturbed upon any
foreclosure or other exercise of remedies under a Fee Mortgage, and provides
such other similar assurances as Tenant shall reasonably request. This Lease
and Leasehold Estate hereunder shall be prior and superior to all subsequent Fee
Mortgages where a non-disturbance agreement has not been obtained, except as
otherwise set forth in a Third Party Lease.
15.3 Zoning Lots. Without Tenant's prior written consent, which Tenant
shall not unreasonably withhold, Landlord shall not enter into any agreement or
instrument by which the Premises are 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 the Premises
are transferred to any other real property.
16 Transfers by Tenant and Dealer Leases.
16.1 Tenant's Limited Right. Tenant may not assign, mortgage, pledge or
transfer all of this Lease (collectively, a "Transfer") without Landlord's
consent, which consent shall not be unreasonably withheld provided that the
assignee is no less credit worthy than Tenant. Tenant may not assign any
part(s) of this Lease and it is deemed reasonable for Landlord to refuse to
grant its consent therefor. Any permitted assignee of Tenant shall assume all
obligations and liabilities of Tenant under this Lease and if not so assumed,
Tenant shall continue to remain liable and responsible under this Lease. In no
event shall Tenant be relieved from its liabilities and obligations incurred or
accruing prior to the assignment. Tenant shall promptly notify Landlord of the
completion of any approved Transfer.
16.2 Dealer Leases. Landlord hereby assigns to Tenant, and Tenant hereby
assumes Landlord's interest in any leases of the Premises to all Dealers. From
the Commencement Date to the end of the Term, Tenant shall be entitled to all
rentals paid by Dealers and during such period Tenant shall perform all of the
obligations under each such Dealer lease attributable to lessor therein. Except
for those Dealer leases set forth in EXHIBIT F, to Landlord's knowledge,
Landlord represents that all such Dealer leases are currently in full force and
effect and that there are no defaults by any party under the terms of such
leases.
16.3 Tenant's Right to Sublet. Subject to the terms of any Third Party
Lease, Tenant may enter into a Sublease for the permitted uses set forth in
Paragraph 5, 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"),
22
26
terminate any Sublease or evict any Subtenant, all without Landlord's consent.
The term of any Sublease (including renewal options thereof,) shall not extend
beyond the Term (including only any Renewal Options previously exercised by
Tenant). If Tenant enters into any Sublease, then such Sublease shall be
subordinate to this Lease. If Tenant desires to enter into a Sublease for a use
other than the permitted uses set forth in Paragraph 5, any such Sublease shall
require Landlord's consent, which, except as provided in the following sentence
or under any Third Party Lease, shall not be unreasonably withheld. Landlord
may withhold consent to a Sublease if it, in its sole judgment, it determines
that (i) valuable licenses and permits will be lost as a result of the proposed
Sublease or (ii) Tenant's intended new use for the Premises will make the
premises materially less valuable. In the event that Landlord grants its
consent to a Sublease for lawful purposes other than the permitted uses set
forth in Paragraph 5, before commencing such new Sublease Tenant shall at its
expense remove all UST's and contaminated soil, if any, before the commencement
of the Sublease term. Thereafter, Tenant shall at its expense complete all
environmental investigations and/or remediations as may be required by
governmental authorities. 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 Lease shall expire or be terminated or
canceled, or if Landlord re-enters or takes possession of the Premises pursuant
to this 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, for the sale of petroleum
products will be terminated before the expiration, termination or cancellation
of this Lease.
16.4 Leasehold Mortgages. Notwithstanding anything in this Lease to the
contrary, Tenant shall not have the right, without Landlord's consent, to
execute and deliver Leasehold Mortgage(s) encumbering this Lease and the
Leasehold Estate.
16.5 No Release. No Transfer or Sublease shall affect or reduce any of
Tenant's obligations or Landlord's rights under this Lease. All obligations of
Tenant under this Lease shall continue in full force and effect notwithstanding
any Sublease or Transfer.
17 Quiet Enjoyment.
Landlord covenants that, so long as Landlord has not terminated this Lease
on account of an 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.
23
27
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 following
circumstances:
18.1.1 Monetary Default. If a Monetary Default shall occur and the
Monetary Default shall continue for 10 days after Landlord has given Tenant
Notice of such Monetary Default, specifying in reasonable detail the amount of
money required to be paid by Tenant and the nature of such payment. Monetary
Defaults shall include, without limitation, failure by Tenant to pay any item
of Rent, Additional Rent or any other charge or sum required to be paid by
Tenant hereunder.
18.1.2 Non-Monetary Default. Except for those Non-Monetary Defaults
set forth below which cannot be cured within 30 days, if 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, or, in the case of a Non-Monetary
Default that cannot with due diligence be cured within 30 days from such Notice,
if 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.
Non-Monetary Defaults shall include, without limitation, (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 or insolvency proceedings, and Tenant shall
thereafter be adjudicated bankrupt, or if such proceedings 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; (c) if, in any
proceeding, a receiver, receiver and manager, trustee or liquidator 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; (d)Tenant shall fail to perform any covenant required by the
Distribution Agreement which failure shall continue beyond such cure periods, if
any, as are provided for in such Distribution Agreement; or (e) a default under
any Third Party Lease or under the provisions of a Fee Mortgage which affect
Tenant's use of the Premises.
18.2 Remedies. If an 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
Lease. Landlord's remedies shall include, without limitation:
24
28
18.2.1 Termination of Tenant's Rights. Landlord may terminate
Tenant's right to possession of the Premises by any lawful means, in which case
this Lease and the Term shall terminate (and such date of termination shall be
the Termination Date) and Tenant shall immediately surrender possession of all
of the Premises to Landlord.
18.2.2 Taking of Possession. Landlord may re-enter and take
possession of any or all of the Premises with or without process of law and
remove Tenant, with or without having terminated this Lease. This is intended
to constitute an express right of re-entry on Landlord's part.
18.2.3 Security Devices. Landlord may change the locks and other
security devices providing admittance to the Premises.
18.2.4 Conditional Limitation. Landlord may serve upon Tenant a
10-day notice of cancellation and termination of this Lease. Upon the
expiration of such 10-day period, this Lease and the Term shall automatically
and without any action by anyone terminate, expire and come to an end, by the
mere lapse of time, as fully and completely as if the expiration of such 10-day
period were the Termination Date. The passage of such 10-day period constitutes
the limit beyond which Tenant's tenancy no longer exists. Tenant shall then
quit and surrender the Premises to Landlord but Tenant shall remain liable as
provided for in this Lease. It is a conditional limitation of this Lease that
the Term shall terminate and expire as set forth in this paragraph. This
paragraph is intended to establish a conditional limitation and not a condition
subsequent.
18.2.5 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 Lease. Tenant specifically acknowledges
that damages would not constitute an adequate remedy for Tenant's breach of any
non-monetary covenant contained in this Lease.
18.2.6 Damages. Landlord may recover from Tenant all damages
incurred by Landlord by reason of Tenant's default, including the costs of
recovering possession, reletting the Premises, and any and all other damages
legally recoverable by Landlord. Such damages shall include, at Landlord's
election, either (a) the Rent provided for in this Lease, when and as due and
payable pursuant to this Lease, less (in the case of this clause "b" 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. Landlord may recover such damages at any time after Tenant's default,
including after expiration of the Term.
18.2.7 Continue Lease. Landlord may at Landlord's option maintain
Tenant's right to possession, in which case this Lease shall continue in effect
and Landlord shall be entitled to continue to enforce this Lease, including the
right to collect Rent and the right to any remedies for nonpayment.
25
29
18.3 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 Lease. Without limiting
the preceding sentence, Landlord shall diligently endeavor to relet the Premises
under any circumstances where such reletting would mitigate Landlord's damages.
18.4 Tenant's Late Payments. If Tenant makes any payment required under
this Lease after such payment is first due and payable, then in addition to any
other remedies Landlord may have under this Lease, and without reducing or
adversely affecting any of Landlord's other rights and remedies, Tenant shall
pay Landlord within 10 days after demand interest on such late payment, at an
interest rate equal to the Prime Rate plus 3%, beginning on the date such
payment was first due and payable and continuing until the date when Tenant
actually makes such payment.
18.5 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 Lease, 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 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 Lease. Landlord may enter upon the Premises for such purpose, and take all
such action on the Premises, as may be reasonably necessary under the
circumstances, but in doing so shall not unreasonably interfere with the conduct
of operations on the Premises by Tenant or anyone claiming through Tenant and
shall comply with Tenant's reasonable instructions. Tenant shall reimburse
Landlord, as Additional Rent (within 10 days after Notice from Landlord
accompanied by reasonable backup documentation), for all reasonable sums paid by
Landlord and all 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 paragraph.
18.6 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 paragraph 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: 120% (for the first month or partial month of holding over), 140% (for
the second month or partial month of holding over),
26
30
and 150% (for each subsequent month or partial month of holding over) times the
Rent, including Additional Rent, payable under this Lease for the month in which
the Termination Date occurs.
18.7 Legal Costs. Provided in each and every case that Landlord
prevails, Tenant shall pay Landlord, as Additional Rent, all Legal Costs and any
other out-of-pocket costs incurred by Landlord on account of any litigation or
dispute between Landlord and Tenant, or claim made by Landlord against Tenant,
arising from this Lease, a Third Party Lease or the landlord-tenant relationship
under this Lease, or on account of Landlord's enforcement of this Lease upon
Tenant's default. In addition, subject to the same proviso, Tenant shall
reimburse Landlord for all Legal Costs and any other out-of-pocket costs
incurred by Landlord in any litigation to enforce or interpret this Lease or
seek declaratory or injunctive relief against Tenant in connection with this
Lease; to exercise Landlord's remedies against Tenant upon an Event of Default
under this Lease or pursuant to Law; to regain or attempt to regain possession
of the Premises or otherwise terminate this Lease; and in any proceeding under
the federal bankruptcy code, or under any similar statute affecting Tenant.
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 Lease, the relationship of Landlord and Tenant under this
Lease, the enforcement of this 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
Lease. Tenant waives any right of redemption provided for by Law.
18.9 Accord and Satisfaction; Partial Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the amount required to be paid by
Tenant under this 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 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 Lease, except to the extent Landlord elects
otherwise in its sole and absolute discretion.
18.10 Cross-Default. Any default by Tenant under the Distribution
Agreement which remains uncured during the applicable grace period, shall be an
Event of Default under this Lease. In addition, any default under a Third Party
Lease which remains uncured during the applicable grace period shall be an Event
of Default under this Lease and any default under this Lease pertaining to a
single or to multiple Premises shall be an Event of Default pertaining to all
Premises.
27
31
19 Termination.
Upon the Termination Date for any or all Premises, all improvements
(including UST's) constituting part of the Premises shall become Landlord's
property (subject to Permitted Exceptions), and Tenant shall deliver to
Landlord possession of the Premises, in good condition and state of repair free
of violations of Law and Environmental Laws, free of Hazardous Substances and
free of all Subleases and tenancies except as otherwise set forth in Paragraph
16.3. In addition, upon such termination Tenant shall assign to Landlord,
without recourse, all assignable licenses and permits affecting the Premises
and all assignable contracts, warranties and guarantees then in effect relating
to the Premises, together with all unpaid insurance awards and rights against
insurance carriers as to then-existing insurance claims relating to the
Premises. In addition, Tenant shall deliver to Landlord any unapplied building
insurance proceeds in Tenant's possession. Tenant's personal property and
equipment not removed from the Premises within 30 days after the Termination
Date shall be deemed abandoned. Tenant shall continue to completion after the
Termination Date any environmental remediations as required by Environmental
Law and shall continue to pay Rent (including Additional Rent) for any Premises
which are rendered substantially unusable because of the remediation
activities.
20 Notices.
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 three Business Days after deposit in the United
States mail, provided that no postal strike is then in effect. Either party
may change its address by giving
Notice in compliance with this Lease. Notice of such a change shall be
effective only upon receipt. The addresses of the parties are:
Landlord: 000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000
Attention: Real Estate Manager
Tenant: 000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000
Attention: President
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 Lease and that no
person is entitled to any commission or finder's fee on account of any
agreements or arrangements made by such party with any broker or
28
32
finder. Each party shall Indemnify the other party against any breach of the
foregoing representation by the Indemnitor.
22 Economic Abandonment.
If during the Term Tenant determines that a Service Station Premises has
become uneconomic or unsuitable for its own use and occupancy and Tenant has
discontinued use of the Service Station Premises or intends to discontinue use
of the Service Station Premises for a period of not less than one year from the
date of said determination, Tenant shall have the right to cease selling motor
fuels and sublease such Service Station Premises for any lawful use by giving
notice to Landlord of Tenant's intention so to sublease. Said notice shall be
delivered to Landlord at least sixty (60) days prior to the effective date of
such termination specified in said notice and shall be accompanied by a
certificate of an officer of Tenant to the effect that Tenant has determined
that the Service Station Premises has become uneconomic or unsuitable for its
then use and occupancy as a service station/convenience store and the Tenant
has discontinued or intends to discontinue use of the Service Station Premises
for a period of not less than one (1) year from the date of said determination.
Any such Sublease shall be subject to Paragraph 16.3 except that Landlord's
consent shall not be required. Prior to the commencement of such sublease term
Tenant shall remove the UST's and any contaminated soil, and thereafter Tenant
shall perform all requisite environmental investigations and/or remediations.
Tenant shall be limited to ten (10) economic abandonments (non-cumulative)
during any lease year during the Term. For Petroleum Terminal Premises and
the Premises subject to Third Party Leases, Tenant shall have no right of
economic abandonment under this Paragraph or otherwise.
23 Third Party Leases.
23.1 Subordination: Conflict. The rights of Tenant hereunder are at all
times subject to the terms and provisions of the Third Party Leases and Tenant
agrees to perform 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 the rent due to the Third Party Lessors. In the
event that there is any conflict between the terms and conditions of this Lease
and the terms and conditions of any Third Party Lease, the terms and conditions
of the Third Party Lease shall control. In the event that the Third Party
Lease is terminated for any reason, Tenant acknowledges and agrees that the
term of this Lease as applicable to the Third Party Lease Premises shall end 30
days prior to the termination of the Third Party Lease. Landlord disclaims any
warranties, express or implied, that it has the right pursuant to the Third
Party Lease to enter into this Lease.
23.2 Renewal Options. Landlord has the right to exercise all renewal
options under all Third Party Leases and Tenant has the right, but not the
obligation, to sublease any such Premises during any such Third Party Leases
renewal options. Tenant is not obligated to sublease any such Premises after
the first to occur of (i) the end of the term of the Third Party Lease in
effect on the date hereof, or (ii) January 31, 2012. In the event that Tenant
elects to
29
33
continue to sublease such Premises beyond the end of the term of a Third Party
Lease, Tenant shall give Landlord notice of such election not less than 60 days
prior to the date that notice is due to Third Party Lessor and Landlord agrees
to give such notice to the Third Party Lessor pursuant to the terms of the Third
Party Lease.
23.3 Renewals. Landlord covenants and agrees that from time to time it
will use all commercially reasonable efforts to renew all Third Party Leases
which expire on or prior to the end of the Initial Term or applicable Renewal
Term (where such Third Party Leases do not contain Renewal Options) on terms and
conditions acceptable to both Landlord and Tenant. Tenant shall advise
Landlord not less than one (1) year prior to the expiration of a Third Party
Lease if Tenant does not desire to continue its tenancy at such Premises, in
which event Landlord will not renew the Third Party Lease for that Premises for
Tenant's use but may renew for Landlord's other purposes, including subleasing
to a third party. In the event that Tenant does not give Landlord the notice as
aforesaid. Tenant shall be deemed to have agreed to renew the Lease as to such
Premises on the terms and conditions negotiated by Landlord with the Third Party
Lessor. In the event that Tenant does give Landlord the notice as aforesaid,
the Lease as to such Premises shall expire and terminate at the end of the then
current term of the applicable Third Party Lease.
24 Waivers.
24.1 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 Lease. No waiver by
either party at any time, express or implied, of any breach of any provisions of
this Lease shall be a waiver of a breach of any other provision of this 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.
24.2 No Landlord's Lien. Landlord confirms and acknowledges that
Landlord has no lien or security interest in any personal property of Tenant
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
Commencement 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 such documentation,
in recordable form, as Tenant shall reasonably require to confirm the foregoing
waiver.
25 Further Assurances; Additional Deliveries.
25.1 Estoppel Certificates. At any time and from time to time, upon not
less than 10 Business Days' prior written request by either party to this Lease
(the "Requesting Party"), the other party to this 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
30
34
requesting party) up to four original counterparts of an Estoppel Certificate.
Any Estoppel Certificate may be relied upon by any third party to whom an
Estoppel Certificate is required to be directed.
25.2 Equipment Liens. If at any time or from time to time Tenant desires
to enter into or grant any Equipment Liens, then upon Tenant'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 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 Premises in the event of a default by Tenant permitting such secured
party to exercise remedies under its Equipment Lien. Any such Equipment Lien
shall be subordinate to this Lease. Notwithstanding the foregoing, Landlord
shall have no obligation to approve Equipment Liens for subtenants and Tenant
shall prevent its subtenants from creating any Equipment Liens.
25.3 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 Lease.
26 Miscellaneous.
26.1 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 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.
26.2 Performance Under Protest. If a dispute arises regarding
performance of any obligation under this 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.
26.3 Legal Costs, Generally. If either party prevails in any
litigation or other dispute relating to the enforcement or interpretation of
this Lease, 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.
26.4 Access. Landlord and its agents, representatives and designees
shall have the right to enter the Premises upon reasonable notice to Tenant
during regular business hours, and in accordance with Tenant's reasonable
instructions, for the purpose of complying with Landlord's
31
35
specific obligations pursuant to this 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 Lease. In entering the Premises pursuant to this
paragraph, Landlord and its designees shall use reasonable efforts not to
interfere with the conduct of operations on the Premises by Tenant or anyone
claiming through Tenant, and shall comply with Tenant's reasonable instructions.
Landlord shall Indemnify Tenant against any claims arising from Landlord's entry
upon the Premises pursuant to this paragraph or any other provision of this
Lease permitting Landlord to enter the Premises (except upon termination of this
Lease).
26.5 Vault Space. Any vaults and other areas now existing or subsequently
built extending beyond the building line of the Premises 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 Lease or the Rent due and owing hereunder.
26.6 No Third Party Beneficiaries. Nothing in this Lease shall be deemed
to confer upon any person (other than Landlord, Tenant, Third Party Lessors or
Fee Mortgagees) any right to insist upon, or to enforce against Landlord or
Tenant, the performance or observance by either party of its obligations under
this Lease.
26.7 Amendment. Any modification or amendment to this Lease must be in
writing signed by Landlord and Tenant.
26.8 Partial Invalidity. If any term or provision of this 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 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 Lease shall be valid and be
enforced to the fullest extent permitted by law.
26.9 Successors and Assigns. This Lease shall bind and benefit Landlord
and Tenant and their successors and assigns, but this shall not limit or
supersede any transfer restrictions contained in this Lease.
27 Interpretation; Execution and Application of Lease.
27.1 Governing Law. This 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.
27.2 Counterparts. This Lease may be executed in counterparts.
32
36
27.3 Reasonableness. Wherever this Lease states that approval by either
party shall not be unreasonably withheld: (a) such approval shall not be
unreasonably delayed or conditioned; and (b) no withholding of approval 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.
27.4 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 Lease.
The parties have both participated substantially in the negotiation, drafting
and revision of this 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."
27.5 Delivery of Drafts. Neither Landlord nor Tenant shall be bound by
this Lease unless and until each party shall have executed at least one
counterpart of this Lease and delivered such executed counterpart to the other
party. The submission of draft(s) of this 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 Lease.
27.6 Captions. The captions of this Lease are for convenience and
reference only and in no way affect this Lease.
27.7 Entire Agreement. This Lease contains all the terms, covenants and
conditions relating to Tenant's leasing of the Premises. 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, except
for the Distribution Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease on the day
and year first above written.
LANDLORD
GETTY REALTY CORP.
By: ________________
Xxx Xxxxxxxxx
Its: President
33
,
34
37
LEEMILT'S PETROLEUM, INC., as holder of the Fee Estate to some of the Premises
hereby consents to this Lease.
LEEMILT'S PETROLEUM, INC.
By: ____________________________
GETTYMART INC., as lessee of a Third Party Lease to some of the Premises,
hereby consents to this Lease.
GETTYMART INC.
By: ____________________________
GETTY TERMINALS CORP., as lessee of a Third Party Lease to some of the
Premises, hereby consents to this Lease.
GETTY TERMINALS CORP.
By: ____________________________
XXXXX OIL CORP., as lessee of a Third Party Lease to some of the Premises,
hereby consents to this Lease.
XXXXX OIL CORP.
By: __________________________
34
38
TENANT
GETTY PETROLEUM
MARKETING INC.
By: _________________
Its: President
KINGSTON OIL SUPPLY CORP., with respect to certain premises located in the
Mid-Xxxxxx Valley as set forth on Exhibit B hereto.
KINGSTON OIL SUPPLY CORP.
By:_____________________________
35
39
MASTER LEASE
ATTACHMENTS:
Exhibit "A" = Legal Description
Exhibit "B" = Third Party Lease locations
Exhibit "C" = Permitted Exceptions
Exhibit "D" = Premises with Non-complying UST's
Exhibit "E" = Premises with Ongoing Remediations
Exhibit "F" = Dealers in Default
Schedule 1 - Initial Term Fixed Rent
36
40
INDEX OF DEFINED TERMS
DEFINED TERM PAGE
------------ ----
Additional Rent ....................... 2
Business Day .......................... 2
Casualty .............................. 2
Certifying Party ...................... 30
Clean-Up Obligor ...................... 15
Commencement Date...................... 2
Condemnation .......................... 2
Construction Work ..................... 2
Contest ............................... 17
County ................................ 2
Dealers ............................... 1
Default ............................... 2
Distribution Agreement................. 1
Equipment Liens ....................... 2
Environmental Law...................... 3
Estoppel Certificate................... 3
Event of Default ...................... 23
Fee Estate ............................ 3
Fee Mortgage .......................... 3
Fixed Rent ............................ 9
Government ............................ 3
Hazardous Substances................... 3
Hazardous Substances Discharge......... 4
Impositions ........................... 4
Include ............................... 33
Including ............................. 33
Indemnify ............................. 4
Indemnitee ............................ 4
Indemnitor ............................ 5
Initial Term .......................... 8
Insubstantial Condemnation............. 5
Land .................................. 1
Landlord .............................. 5
Law ................................... 5
Laws .................................. 5
Lease ................................. 1
Leasehold Estate ...................... 5
i
41
INDEX OF DEFINED TERMS (continued)
DEFINED TERM PAGE
------------ ----
Legal Costs ............... 5
Monetary Default .......... 5
Non-Monetary Default ...... 5
Notice .................... 5
Notice of Default ......... 5
Permitted Exceptions ...... 1
Person .................... 6
Petroleum Terminal ........ 6
Premises .................. 6
Prime Rate ................ 6
Prohibited Liens .......... 6
Renewal Option ............ 6
Renewal Term .............. 8
Rent ...................... 6
Requesting Party .......... 30
Service Station ........... 6
State ..................... 6
Sublease .................. 7
Substantial Condemnation... 7
Subtenant ................. 7
Subtenants ................ 7
Temporary Condemnation..... 7
Tenant .................... 7
Term ...................... 8
Termination Date .......... 7
Third Party Lease ......... 7
Third Party Lessor ........ 7
Transfer .................. 21
Unavoidable Delay ......... 7
UST ....................... 8
Waiver of Subrogation ..... 8
________
ii
