EXHIBIT 10.10 CONSOLIDATED, AMENDED AND
RESTATED MASTER LEASE AGREEMENT DATED NOVEMBER 2, 2000 BETWEEN GETTY PROPERTIES
CORP. AND GETTY PETROLEUM MARKETING INC.

 

CONSOLIDATED, 

AMENDED AND RESTATED


MASTER LEASE


DATED AS OF


NOVEMBER 2, 2000


BETWEEN


GETTY PROPERTIES CORP., AS LANDLORD,


AND


GETTY PETROLEUM MARKETING INC., AS
TENANT






                              This
CONSOLIDATED, AMENDED AND RESTATED MASTER LEASE (together with all Exhibits and
Schedules attached hereto, this “Restated Lease”) is made and entered into as
of November 2, 2000 between Getty Properties Corp., a Delaware corporation,
whose address is 125 Jericho Turnpike, Jericho, New York 11753 (formerly known
as Getty Realty Corp.,) (as further defined hereinafter, “Landlord”), and Getty
Petroleum Marketing Inc., a Maryland corporation whose address is 125 Jericho
Turnpike, Jericho, New York 11753 (as further defined hereinafter, “Tenant”).


R E C I T A L S


                              
A. Pursuant to that certain Master Lease, dated February 1, 1997, between
Landlord and Tenant (the “1997 Master Lease”) and the Post-Reorganization
Leases (as hereinafter defined), Landlord leased to Tenant, in addition to
other properties, the lands described in Exhibit A and subleased or sub-subleased
to Tenant, in addition to other properties, the lands described on Exhibit B
(all such lands described on Exhibit A and Exhibit B being referred to
hereinafter collectively as the “Land”), together with all right, title and
interest of Landlord, if any, in and to: (a) all buildings, structures and
other improvements and appurtenances then located on the Land; (b) the land
lying in the bed of any street or highway in front of or adjoining the Land to
the center line of such street or highway; (c) the appurtenances and all the
estate and rights to the Land; (d) any strips or gores adjoining the Land; and
(e) any furnishings, fixtures, equipment or other personal property attached or
appurtenant to any improvements then located on the Land (all of the foregoing,
as they exist as of the Restatement Effective Date, including all Improvements
(as hereinafter defined) together with Landlord’s right, title and interest in
and to all easements, covenants, rights of way and similar rights benefiting
the Land, collectively, the “Premises”, as further defined hereinafter, and
individually, a “Property,” as further defined hereinafter).


                              
B. Landlord and Tenant desire, as of the Restatement Effective Time (as hereinafter
defined), to incorporate and consolidate the 1997 Master Lease and the
Post-Reorganization Leases (individually and collectively, the “Original
Lease”) into a single document and to further amend and restate the Original
Lease, all as set forth in this Restated Lease and desire that, from and after
the Restatement Effective Time, all rights and obligations of Landlord and
Tenant shall be governed by this Restated Lease such that this Restated Lease
shall consolidate, supersede and restate in their entirety the Original Lease
from and after the Restatement Effective Time.


                              
C. This Restated Lease is intended to constitute a single lease of the Premises
and may not be severed, bifurcated, divided, or otherwise split in any manner
whatsoever.


                              
D. Landlord and Tenant acknowledge that (i) the entering into of this Restated
Lease is of primary importance to Tenant, and Tenant would not have entered
into (or caused any of its Affiliates or Subsidiaries to enter into) the Merger
Agreement (as hereinafter defined) without there having been such an agreement,
and (ii) the agreement between Landlord and Tenant to treat this as a single
lease in all respects is of primary importance to Landlord, and neither
Landlord nor any of its Affiliates or Subsidiaries would have entered into this
Restated Lease without there being such an agreement and such treatment of this
Restated Lease.






                              NOW,
THEREFORE, in exchange for good and valuable consideration, as of the
Restatement Effective Time, Landlord hereby leases, subleases and sub-subleases
the Premises to Tenant and Tenant hereby takes and hires the Premises from
Landlord, subject only to the Permitted Exceptions (as hereinafter defined) and
the Subleases (as hereinafter defined), for the Term (as hereinafter defined),
upon the terms and conditions of this Restated Lease. As of the Restatement
Effective Time, the Original Lease shall be deemed to be consolidated, amended,
restated and superceded in its entirety as follows:


                    
1. DEFINITIONS.


                              
The following definitions shall apply throughout this Restated Lease, in addition
to any other definitions elsewhere in this Restated Lease. An Index of Defined
Terms follows the signature page.


                              
1.1 1998 Master Lease. The term “1998 Master Lease” means that certain Master
Lease, dated December 22, 1998, between the Leemilt’s Lessor and Tenant.


                              
1.2 Abandoned Properties. The term “Abandoned Properties” means the ten (10)
properties listed on Schedule 1 hereto, each of which were demised under the
Original Lease and shall not be demised under this Restated Lease. The term
“Abandoned Property” shall have the correlative singular meaning.


                              
1.3 Additional Rent. The term “Additional Rent” means, whether or not designated
as such, any and all sums and payments that this Restated Lease requires Tenant
to pay to Landlord, except Fixed Rent. Additional Rent shall also include (a)
all Impositions and (b) all percentage rent, gallonage rent, and royalties
payable under Third Party Leases, if any.


                              
1.4 Affiliate. The term “Affiliate” means, with respect to any Person, (i) any
other Person that, directly or indirectly, controls or is controlled by or is
under common control with such Person, (ii) any other Person that owns,
beneficially, directly or indirectly, ten percent (10%) or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii)
any officer, director, employee, partner or trustee of such Person or any
Person controlling, controlled by or under common control with such Person. For
the purposes of this definition, “control” (including the correlative meanings
of the terms “controlled by” and “under common control with”), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person, through the ownership of voting securities or partnership
interests or otherwise.


                              
1.5 April 1999 Master Lease. The term “April 1999 Master Lease” means that
certain Master Lease, dated April 6, 1999, between the Leemilt’s Lessor and
Tenant.


                              
1.6 Award. The term “Award” means compensation paid on account of a Condemnation
whether pursuant to judgment or by agreement or otherwise.


                              
1.7 Bankruptcy Default. The term “Bankruptcy Default” means the occurrence of
any of the following Non-Monetary Defaults: (a) if Tenant shall make an
assignment for the benefit of its creditors; (b) if any petition shall be filed
against Tenant in any


2






court,
whether or not pursuant to any statute of the United States or of any State, in
any bankruptcy, reorganization, composition, extension, arrangement, insolvency
or similar proceeding, and Tenant shall thereafter be adjudicated bankrupt, or
if any such proceeding shall not be dismissed within ninety (90) days after the
institution of the same; or if any such petition shall be so filed by Tenant or
a liquidator; or (c) if, in any proceeding, a receiver, receiver and manager,
trustee or liquidator shall be appointed for all or any portion of Tenant’s
property, and such receiver, receiver and manager, trustee or liquidator shall
not be discharged within ninety (90) days after the appointment of such
receiver, receiver and manager, trustee or liquidator.


                              
1.8 Business Day. The term “Business Day” means any weekday on which banks in
the State of New York are generally open to conduct regular banking business
with bank personnel.


                              
1.9 Casualty. The term “Casualty” means any damage or destruction affecting any
or all of the Improvements on any Property.


                              
1.10 Closure. The term “Closure” means:


	
  

 	
  

 
	
  

 	
           (a)
 Receipt of written notice from the applicable Government that “no further
 Remediation” of the Contamination is required;

 
	
  

 	
  

 
	
  

 	
           (b)
 Receipt of written notice from the applicable Government that the approved
 Remediation plan for the Contamination has been completed;

 
	
  

 	
  

 
	
  

 	
           (c)
 Where expressly authorized by applicable Environmental Law, receipt of
 written notice from a licensed site professional or similar Remediation
 consultant approved by Tenant or Landlord (if chosen by the other party),
 such approval not to be unreasonably withheld, that the approved Remediation
 plan for the Contamination has been completed, provided that Landlord or
 Tenant, as applicable, shall remain responsible for any additional
 Remediation required by the applicable Government resulting from the
 applicable Government’s audit of the Remediation that the licensed site
 professional or similar Remediation consultant has determined to have been
 completed; or

 
	
  

 	
  

 
	
  

 	
           (d)
 Landlord or Tenant as applicable, has requested a closure letter or notice
 from the applicable Government, has not received any response of any kind to
 its request for twelve (12) months, and Landlord or Tenant, as applicable,
 has determined that the soil and groundwater have been Remediated to levels
 below or equal to the limits required by the applicable Government at the
 conclusion of the twelve-month period following submission of the Closure
 letter request based on four (4) successive quarterly monitoring tests by a
 recognized environmental contractor.

 
	
  

 
	
 The
 satisfaction of any one of the above conditions shall be referred to as “Closure”
 herein. “No further Remediation” shall include, without limitation, “closed”
 “no further action,” “inactive site

 



3






status”
or similar terms, even if such letters have qualifications such as “at this
time,” “does not meet state standards,” or the like.


                              1.11
Commencement Date. The term “Commencement Date” means (a) with respect to those
Properties leased or subleased to Tenant by the 1997 Master Lease, February 1,
1997; (b) with respect to those Properties leased to Tenant by the 1998 Master
Lease, December 22, 1998 with respect to certain of such Properties and
otherwise the date set forth on Exhibit A thereto; (c) with respect to those
Properties leased to Tenant by the April 1999 Master Lease, April 6, 1999; and
(d) with respect to those Properties leased to Tenant by the September 1999
Master Lease, (i) October 6, 1999 with respect to the Property having a street
address of 592 Route 70, Brick, New Jersey and (ii) September 30, 1999 with
respect to the Property having a street address of 650 Route 15 South, Lake
Hopatcong, New Jersey.


                              
1.12 Condemnation. The term “Condemnation” means any taking of title to any
Property or any part of any Property by exercise of any right of eminent domain
by, or by any similar proceeding or act of, any Government, quasi-public
authority or private corporation having the power and legal authority to do so.
For the purposes of this definition, the effective date of any such
condemnation shall be deemed to be the later of: (a) the date when title to the
applicable Property or part thereof is transferred by such proceeding or act of
the condemning authority, and (b) the date when Tenant or the applicable
Subtenant or other occupant is no longer permitted to occupy such Property.


                              
1.13 Construction Work. The term “Construction Work” means any alteration,
modification, demolition, or other construction or reconstruction work, or the
construction or reconstruction of any new Improvements, or repair of any
existing Improvements, located on, under or at any Property.


                              
1.14 Contamination. The term “Contamination” means recoverable free liquid
hydrocarbons, dissolved hydrocarbon components, absorbed and vapor phase
hydrocarbon, or other environmental contamination that is required to be
Remediated under applicable Environmental Laws.


                              
1.15 County. The term “County” means the county where any Property is located.


                              
1.16 CPI. The term “CPI” means the United States Department of Labor, Bureau of
Labor Statistics “Consumer Price Index” for Urban Wage Earners and Clerical
Workers (CPI-W) published for New York - Northern New Jersey - Long Island,
NY-NJ-CT-PA, with a base of 1982-1984 = 100, or the successor index thereto. If
the CPI ceases to be published, and there is no successor thereto, such other
index as Landlord and Tenant shall agree upon in writing shall be substituted
for the CPI. The CPI for any calendar month shall be deemed to mean the CPI
last published before such calendar month.


                              
1.17 CPI Adjustment Factor. As of any date of determination, the term “CPI
Adjustment Factor” means the greater of (a) 1.00 or (b) the following fraction:


4






	
  

 
	
 CPI for the calendar month immediately
 preceding such 

 date of determination

 
	
 


 
	
 CPI for the calendar month during which
 the Restatement 

 Effective Date occurred.

 



                              
1.18 Default. The term “Default” means any Material Monetary Default,
Non-Material Monetary Default, Non-Monetary Default or Landlord Default.


                              
1.19 Depository. The term “Depository” means, at Tenant’s or Leasehold Mortgagee’s
election, any of the following: (a) an Institutional Lender, (b) Leasehold
Mortgagee, (c) a national title insurance company reasonably acceptable to
Landlord and licensed to do business in the State of New York, or (d) a
servicer regularly used by Institutional Lenders in connection with loan
transactions. Tenant shall pay all fees and expenses charged by the Depository.


                              
1.20 Distribution Agreement. The term “Distribution Agreement” means that
certain Reorganization and Distribution Agreement dated as of January 31, 1997
transferring to Tenant the Marketing Assets and Marketing Business (as such
terms are defined therein) in connection with that certain distribution by
Landlord of the common stock of Tenant to the stockholders of Landlord, as
amended from time to time.


                              
1.21 Environmental Agreement. The term “Environmental Agreement” means that
certain Environmental Indemnity Agreement between Landlord and Tenant dated as
of the date hereof, as the same may be amended or modified from time to time.


                              
1.22 Environmental Law. The term “Environmental Law” means all laws, ordinances,
requirements, orders, directives, rules, regulations, and applicable judicial
and administrative decisions, orders and decrees of any applicable Government
affecting the development, improvement, alteration, use, maintenance, operation
or occupancy of the Premises, any Property, or any part of any Property,
whether in force at the Commencement Date or passed, enacted or imposed at some
time in the future, to the extent applicable to conditions on, under, or about
the Premises, any Property, or any part of any Property, or arising from use or
occupancy thereof, related to pollution, protection of human health or the
environment from exposure to Hazardous Substances, including but not limited
to, Laws relating to the release or discharge of Hazardous Substances to the
ambient air, surface and subsurface soils, surface water and ground water, or
governing the use, generation, storage, transportation, disposal, release,
clean-up or control of Hazardous Substances in, on, at, to or from the
Premises, any Property, or any part of any Property, subject in all cases,
however, to all applicable waivers, variances and exemptions limiting the application
of the foregoing.


                              
1.23 Equipment Liens. The term “Equipment Liens” means purchase-money security
interests, financing leases, personal property liens, and similar arrangements
(including the corresponding UCC-1 financing statements) relating to Tenant’s
and/or Subtenant’s acquisition, encumbering or financing of Personal Property,
and used in connection with the operation of any business on the Premises not
prohibited by this Restated Lease or any Third Party Lease, that are leased,
purchased pursuant to conditional sale or installment sale


5






arrangements,
encumbered by a security agreement made by Tenant and/or any Subtenant, as the
case may be, or used under licenses, such as convenience food store equipment,
gasoline marketing equipment, USTs (not owned by Landlord), furniture, fixtures
and equipment, telephone, telecommunications and facsimile transmission
equipment, point of sale equipment, televisions, radios, and computer systems,
provided that each Equipment Lien encumbers or otherwise relates to only the
property financed or otherwise provided by the secured party under such
Equipment Lien.


                              
1.24 Estoppel Certificate. The term “Estoppel Certificate” means a statement in
writing containing all of the following statements (identifying in reasonable
detail any exceptions that may exist at the time), as requested by either
party: (a) this Restated Lease has not been amended or modified, constitutes
the entire agreement between Landlord and Tenant relating to the Premises
(except as otherwise set forth in Section 33.9), and is in full force and
effect (or, if there have been amendments or modifications, that this Restated
Lease as so amended or modified is in full force and effect and stating such
amendments or modifications); (b) neither Landlord nor Tenant is in default
under this Restated Lease and to the best of the signer’s knowledge no facts or
circumstances exist that, with the passage of time or the giving of notice or
both, would constitute Defaults under this Restated Lease by Landlord or Tenant
(or, if there have been any Defaults or potential Defaults, specifying the
nature of any such Default or potential Default); (c) Tenant has paid all Fixed
Rent to date and, to the best of Landlord’s knowledge, all Additional Rent to
date; (d) the Commencement Date, the Restatement Effective Date, or any other
then-ascertainable date relevant to this Restated Lease; (e) this Restated
Lease is a single lease demising the Premises and may not be severed,
bifurcated, divided or otherwise split in any manner whatsoever; and (f) such
other matters as either party shall reasonably request.


                              
1.25 Fee Estate. The term “Fee Estate” means Landlord’s fee estate in the Premises
or any Property or, in the case of a Property owned by a Third Party Lessor,
the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor, the fee
estate of such Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor
or the Gettymart Lessor in such Property, as applicable.


                              
1.26 Fee Mortgage. The term “Fee Mortgage” means any mortgage, deed of trust,
deed to secure debt, assignment, security interest, pledge, financing statement
or any other instrument(s) or agreement(s) intended to grant security for any
obligation encumbering the Fee Estate or Landlord’s leasehold interest in any
Fee Estate owned by a Third Party Lessor, the Power Test Lessor, the Leemilt’s
Lessor or the Gettymart Lessor, as the case may be, as existing, entered into,
renewed, modified, amended, extended or assigned from time to time during the
Term.


                              
1.27 Fixed Rent. The term “Fixed Rent” means all rent payable under Section
3.1.


                              
1.28 Fixed Rent Adjustment Procedures. The term “Fixed Rent Adjustment
Procedures” shall have the meaning ascribed to it on Schedule 4.


6






                              
1.29 Fleet Mortgage. The “Fleet Mortgage” means those certain Fee Mortgages
securing the Power Test Lessor’s obligations pursuant to that certain Amended
and Restated Loan Agreement between the Power Test Lessor and Fleet National
Bank, dated October 31, 1995, as subsequently amended.


                              
1.30 GAAP. The term “GAAP” means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession of the United States of America, in all cases as
interpreted by a significant segment of the accounting profession of the United
States of America.


                              
1.31 Gettymart Lease. The term “Gettymart Lease” means that certain Lease
Agreement, dated as of the Restatement Effective Date, between the Gettymart
Lessor, as landlord, and Landlord, as tenant.


                              
1.32 Gettymart Lease Estoppel Certificate. The term “Gettymart Lease Estoppel
Certificate” means a statement in writing containing all of the following
statements (identifying in reasonable detail any exceptions that may exist at
the time), as requested by Tenant: (a) the Gettymart Lease has not been amended
or modified, constitutes the entire agreement between the Gettymart Lessor and
Landlord relating to the Properties subject to the Gettymart Lease and is in
full force and effect (or, if there have been amendments or modifications, that
the Gettymart Lease as so amended or modified is in full force and effect and
stating such amendments or modifications); (b) neither the Gettymart Lessor nor
Landlord is in material default under the Gettymart Lease and, to the best of
the Gettymart Lessor’s knowledge, no facts or circumstances exist that, with
the passage of time or the giving of notice or both, would constitute material
defaults under the Gettymart Lease by the Gettymart Lessor or Landlord (or, if
there have been any material defaults or potential material defaults,
specifying the nature of any such material default or potential material
default); (c) Landlord has paid all rent to date; (d) any then-ascertainable
date relevant to the Gettymart Lease; and (e) such other matters as Tenant
shall reasonably request.


                              
1.33 Gettymart Lessor. The term “Gettymart Lessor” means GettyMart, Inc., a
Delaware corporation and its successors and assigns under the Gettymart Lease.


                              
1.34 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.


                              
1.35 Governmental Request. The term “Governmental Request” means, with respect
to any Person, such Person’s filing for (or other similar process) a building
permit, fire underwriter’s certificate, zoning variance or similar permit,
certificate or license or such Person’s making of any other inquiries with
respect to any Property to the applicable Government.


7






                              
1.36 Hazardous Substances. The term “Hazardous Substances” means those flammable
substances, explosives, radioactive materials, asbestos, polychlorinated
biphenyls, chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, medical wastes, toxic substances or
related materials, petroleum and petroleum products, or other substances of any
kind that are subject to regulation, control or remediation under Environmental
Laws.


                              
1.37 Impositions. The term “Impositions” means all Real Estate Taxes, water
rents, rates and charges, sewer rents, commercial rent taxes, occupancy taxes
(other than those that are treated as Real Estate Taxes), UST fees and taxes,
and other impositions and charges of every kind and nature whatsoever with
respect to any Property that may be assessed, levied, confirmed, imposed or become
a lien on any Property or that may be levied, assessed or imposed upon the
gross income arising from any Rent (in all cases, other than on account of any
actions or omissions of Landlord, a Third Party Lessor, the Power Test Lessor,
the Leemilt’s Lessor or the Gettymart Lessor, or conditions existing on, at or
with respect to any Property before the applicable Commencement Date), in all
cases, by or for the benefit of any Government with respect to any period
falling within the period from the Commencement Date through the end of the
Term. Notwithstanding the foregoing, all such obligations of a lessee in a
Third Party Lease, the Power Test Lease, the Leemilt’s Lease and the Gettymart
Lease (except to the extent, if any, such item is included as Fixed Rent
hereunder) 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 (other than a license fee imposed with
respect to any Property or the Improvements thereon the maintenance of which is
Tenant’s responsibility pursuant to the terms of this Restated Lease) of
Landlord, (b) the incremental portion of any of the items listed in this
Section that would not have been levied, imposed or assessed but for any sale
or other direct or indirect transfer of the Fee Estate or of any interest in
Landlord during the Term, (c) any charges that would not have been payable but
for any act or omission of Landlord or conditions existing on, at or with
respect to the Property before the applicable Commencement Date, (d) any
charges that are levied, assessed or imposed against any Property during the
Term based on the recapture or reversal of any previous tax abatement or tax
subsidy, or compensating for any previous tax deferral or reduced assessment or
valuation, or based on a miscalculation or misdetermination of any charge(s) of
any kind imposed or assessed with respect to the Premises, relating to any
period(s) before the applicable Commencement Date, and (e) interest, penalties
and other charges with respect to items “a” through “d.”


                              
1.38 Improvements. The term “Improvements” means all buildings, structures,
landscaping, recreational facilities, signs, foundations, and other improvements,
appurtenances and above-ground storage tanks now or hereafter located on the
Premises. Under no circumstances shall the term “Improvements” be deemed to
include any of the USTs, for which separate provision is made under this
Restated Lease.


                              
1.39 Indemnify. Wherever this Restated Lease provides that a party shall
“Indemnify” another from or against a particular matter, such term means that
the Indemnitor shall indemnify the Indemnitee (and its partners, officers,
directors, members, shareholders,


8






agents,
contractors and employees) and defend and hold the Indemnitee (and its
partners, officers, directors, members, shareholders, agents, contractors and
employees) harmless from and against any and all actual loss, cost, claims,
liability, penalties, judgments, damage or other injury, detriment, or expense
(including Legal Costs, interest and penalties) actually incurred or suffered
by the Indemnitee (and its partners, officers, directors, members,
shareholders, agents, contractors and employees) on account of the matter that
is the subject of such indemnification or in enforcing the Indemnitor’s
indemnity. Notwithstanding the foregoing or anything to the contrary contained
in this Restated Lease, Indemnitor shall under no circumstances whatsoever be
liable for consequential damages incurred by Indemnitee on account of the
matter that is the subject of such indemnification.


                              
1.40 Indemnitee. The term “Indemnitee” means a party that is entitled to be
Indemnified pursuant to this Restated Lease.


                              
1.41 Indemnitor. The term “Indemnitor” means a party that agrees to Indemnify
another party pursuant to this Restated Lease.


                              
1.42 Institutional Lender. The term “Institutional Lender” means a bank, trust
company, insurance company or savings bank having, at any and all times, a net
worth of not less than $500,000,000 (as increased on an annual basis, based on
the CPI Adjustment Factor) and net assets of not less than $2,500,000,000 (as
increased on an annual basis, based on the CPI Adjustment Factor); provided
that any such entity shall qualify as an “Institutional Lender” only if such
entity (a) is not an Affiliate of Tenant (unless such entity is an Affiliate of
Tenant solely as a result of making a bona fide equity investment in Tenant);
and (b) is subject to (1) the jurisdiction of the courts of the State of New
York in any actions and (2) the supervision of (A) the Comptroller of the
Currency, (B) the Department of Labor of the United States, (C) the Insurance
Department or the Banking Department or the Comptroller of New York City, or
any successor to any of the agencies or officials referred to in clauses (A)
through (C).


                              
1.43 Insubstantial Condemnation. The term “Insubstantial Condemnation” means
any Condemnation other than a Substantial Condemnation or a Temporary
Condemnation.


                              
1.44 Knowledge. The term “knowledge”, means, with respect to Landlord, the
actual knowledge of Leo Liebowitz, Randi Young Filip, John Fitteron, Edwin C.
Levy, Scott Hanley, Vincent DeLaurentis, and Paul Stendardi, with inquiry,
which inquiry (a) shall consist of and be limited to inquiry of employees of
Landlord who may be reasonably expected to have information with respect to the
relevant matter and (b) shall in no event require any review of any files,
databases or records which may contain relevant information. The phrase “to the
best of Landlord’s knowledge” shall have the same meaning.


                              
1.45 Landlord. The term “Landlord” means Getty Properties Corp. (formerly known
as Getty Realty Corp.) and certain of its Affiliates and/or Subsidiaries, who
have approved this Restated Lease on the signature page hereof, and their
respective successors and assigns.


                              
1.46 Landlord’s Award. The term “Landlord’s Award” means, at any point in time,
an amount equal to the then fair market value of the Fee Estate (which, for the
purposes of


9






 this definition, shall include Landlord’s
leasehold interest in the Fee Estates owned by a Third Party Lessor, the Power
Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor (it being understood
that the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor, as
applicable, as landlord thereunder, and Landlord, as tenant thereunder, shall
in no event seek Awards with respect to the same estate or interest in the Fee
Estate encumbered by any such Power Test Lease, the Leemilt’s Lease or the
Gettymart Lease, as applicable) in the applicable Property (including the then
fair market value of the rights of the holder of such Fee Estate in and to the
Improvements thereon), considered: (i) as if the Condemnation had not occurred;
(ii) without adjusting for any expectation of the Condemnation; (iii) as if this
Restated Lease had not terminated with respect to the applicable Property as of
the effective date of the Condemnation; and (iv) taking into account the
benefits and burdens of this Restated Lease, the remaining Term (as further
defined in this definition), all Permitted Exceptions, and all other matters
affecting such Fee Estate and its valuation. For the purposes of calculating
“Landlord’s Award,” the Term of this Restated Lease shall include only those
Renewal Terms for which Tenant had previously exercised its Renewal Option in
accordance with the provisions of this Restated Lease. “Landlord’s Award” shall
be determined independently of, and without regard to, any valuation of the Fee
Estate established in any Condemnation proceeding.


                              
1.47 Law. The term “Law” or “Laws” means all laws, ordinances, requirements,
orders, directives, rules, regulations, and applicable judicial and
administrative decisions, orders and decrees of any applicable Government
affecting the development, improvement, alteration, use, maintenance, operation
or occupancy of the Premises, any Property, or any part of any Property,
whether in force at the Commencement Date or passed, enacted or imposed at some
time in the future, subject in all cases, however, to all applicable waivers,
variances and exemptions limiting the application of the foregoing.
Notwithstanding the foregoing, for the purposes of this Restated Lease, the
terms “Law” and “Laws” shall in no event be deemed to include Environmental Law
or Environmental Laws, for which separate provision is made herein.


                              
1.48 Lease Termination Damages. The term “Lease Termination Damages” means an
amount per annum equal to the Annual Damage Amount (as defined hereinafter),
payable in accordance with the following sentence. Landlord shall pay the
Annual Damage Amount to Tenant quarterly, in equal installments, for each
calendar year (or portion thereof) during the shortest of the following
periods, as applicable: (a) a five (5) year period commencing on the
termination of the applicable Third Party Lease, (b) the period of the then
remaining Term of this Restated Lease, and (c) the period of the then remaining
term of the terminated Third Party Lease. As used herein, the term “Annual
Damage Amount” means a sum equal to the product of (a) the volume of gas sales
in gallons at the Property with respect to which a Third Party Lease has been
terminated in the twelve (12) full calendar months immediately prior to the
termination of such Third Party Lease, times (b) ten cents ($.10), less an
equitable amount attributable to Tenant’s cost of doing business at such
Property (including, without limitation, the Rent allocable to such Property,
the determination of which shall be made in accordance with the principles set
forth in the Fixed Rent Adjustment Procedures) during such period.


                              
1.49 Lease Year. The first “Lease Year” of this Restated Lease means the twelve-month
period commencing on the Restatement Effective Date and ending on the day


10






 before the first anniversary of the
Restatement Effective Date. The second “Lease Year” means the period commencing
on the first anniversary of the Restatement Effective Date and ending on the
day before the second anniversary of the Restatement Effective Date; and so on
for each subsequent twelve-month period during the Initial Term and, if any,
the Renewal Term(s).


                              
1.50 Leasehold Estate. The term “Leasehold Estate” means Tenant’s leasehold
estate in any Property owned by Landlord in fee and demised under this Restated
Lease and, in the case of a Property owned by a Third Party Lessor, the
Leemilt’s Lessor, the Power Test Lessor or the Gettymart Lessor, Tenant’s
subleasehold estate demised under this Restated Lease, in all cases upon and
subject to all the terms and conditions of this Restated Lease.


                              
1.51 Leasehold Mortgagee. The term “Leasehold Mortgagee” means a Permitted
Leasehold Mortgagee holding a Permitted Leasehold Mortgage.


                              
1.52 Legal Costs. The term “Legal Costs” means all reasonable costs and expenses
incurred by a party to this Restated Lease in connection with any legal
proceeding or contest, including reasonable attorneys’ fees, consultant’s fees,
court costs, and expenses.


                              
1.53 Leemilt’s Lease. The term “Leemilt’s Lease” means (i) before the Restatement
Effective Time, that certain Lease Agreement, dated as of February 1, 1985,
between the Leemilt’s Lessor, as landlord, and Landlord, as tenant and (ii) at
and after the Restatement Effective Time, that certain Lease Agreement dated as
of the Restatement Effective Date between the Leemilt’s Lessor, as landlord,
and Landlord, as tenant.


                              
1.54 Leemilt’s Lease Estoppel Certificate. The term “Leemilt’s Lease Estoppel
Certificate” means a statement in writing containing all of the following
statements (identifying in reasonable detail any exceptions that may exist at
the time), as requested by Tenant: (a) the Leemilt’s Lease has not been amended
or modified, constitutes the entire agreement between the Leemilt’s Lessor and
Landlord relating to the Properties subject to the Leemilt’s Lease and is in
full force and effect (or, if there have been amendments or modifications, that
the Leemilt’s Lease as so amended or modified is in full force and effect and
stating such amendments or modifications); (b) neither the Leemilt’s Lessor nor
Landlord is in material default under the Leemilt’s Lease and, to the best of
the Leemilt’s Lessor’s knowledge, no facts or circumstances exist that, with
the passage of time or the giving of notice or both, would constitute material
defaults under the Leemilt’s Lease by the Leemilt’s Lessor or Landlord (or, if
there have been any material defaults or potential material defaults,
specifying the nature of any such material default or potential material
default); (c) Landlord has paid all rent to date; (d) any then-ascertainable
date relevant to the Leemilt’s Lease; and (e) such other matters as Tenant
shall reasonably request.


                              
1.55 Leemilt’s Lessor. The term “Leemilt’s Lessor” means Leemilt’s Petroleum,
Inc. and its successors and assigns, as lessor under the Leemilt’s Lease.


                              
1.56 License Agreement. The term “License Agreement” means that certain Amended
and Restated Trademark License Agreement dated as of the date hereof, as the
same may be amended or modified from time to time.


11






                              
1.57 Major Violation. The term “Major Violation” means a Preexisting Violation
which results in a Government sending written notice to Landlord, Tenant, a
Subtenant, a Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor,
the Gettymart Lessor, or a Property that such Preexisting Violation is a
violation of Law and requiring cure of the same.


                              
1.58 Marketing Parent. The term “Marketing Parent” means OAO LUKoil, a Russian
Corporation, and its successors and assigns.


                              
1.59 Material Monetary Default. The term “Material Monetary Default” means any
failure by Tenant (A) to pay Fixed Rent or Real Estate Taxes, in either case
when, as and in the amount required to be paid by Tenant pursuant to the terms
of this Restated Lease or (B) in the case of insurance, to maintain the
insurance coverage required in Article 12. Notwithstanding the preceding
sentence, a “Material Monetary Default” will not be deemed to occur with
respect to Tenant’s failure to pay any Real Estate Tax unless Tenant fails to
pay such Real Estate Tax on or prior to the last day on which such Real Estate
Tax may be paid to the appropriate taxing authority without penalty or
interest.


                              
1.60 Merger Agreement. The term “Merger Agreement” means that certain Agreement
and Plan of Merger dated as of the date hereof among OAO LUKOIL, LUKOIL
International GmbH, LUKOIL Americas Corporation, Mikecon Corp., and Getty
Petroleum Marketing Inc., as the same may be amended or modified from time to
time.


                              
1.61 Mortgage. The term “Mortgage” means a Fee Mortgage or a Permitted Leasehold
Mortgage.


                              
1.62 New Contamination. The term “New Contamination” means Contamination
discovered at any Property at which Landlord is conducting Remediation under
Section 9.2, which Properties are set forth on Schedule 3, after Landlord has
commenced such Remediation and before Closure is obtained by Landlord. Tenant
shall have the burden of proving that any such discovered Contamination is not
New Contamination but Contamination for which Landlord is obligated to
Remediate.


                              
1.63 Non-Material Monetary Default. The term “Non-Material Monetary Default”
means any failure by Tenant to pay any charge or sum(s) of money payable by
Tenant pursuant to this Restated Lease (other than Fixed Rent, Real Estate
Taxes and insurance premiums required to maintain the insurance coverage set
forth in Article 12 hereof), when, as, and in the amount required to be paid by
Tenant pursuant to the terms of this Restated Lease.


                              
1.64 Non-Monetary Default. The term “Non-Monetary Default” means any failure by
Tenant to comply with any terms or provisions of, or perform as required by,
this Restated Lease, other than a Material Monetary Default or a Non-Material
Monetary Default. A Bankruptcy Default shall be considered a Non-Monetary
Default.


                              
1.65 Notice. The term “Notice” means any notice, demand, request, election,
designation, approval, or consent, including any of the foregoing relating to a
Default by any party hereunder, that is permitted, required or desired to be
given by either party in connection with this


12






Restated
Lease. Notices shall be delivered, and shall become effective, only in
accordance with the requirements of Article 20.


                              
1.66 Pelham Manor Rezoning Event. The term “Pelham Manor Rezoning Event” means
the date when, as a result of the enactment of a final, non-appealable change
in Law, the use of the Property having a mailing address of 4301 Boston Post
Road, Bronx, New York 10466 as a Petroleum Terminal Property is no longer
lawful.


                              
1.67 Permitted Exception. The term “Permitted Exception” means all liens,
charges, estates and encumbrances currently affecting the Premises as of the
Restatement Effective Date.


                              
1.68 Permitted Leasehold Mortgage. The term “Permitted Leasehold Mortgage”
means any mortgage, deed of trust, deed to secure debt, assignment, security
interest, pledge, financing statement or any other instrument(s) or
agreement(s) that is held by a Permitted Leasehold Mortgagee and is intended to
grant security for any obligation encumbering the entire Leasehold Estate, as
the same may be entered into, renewed, modified, amended, extended or assigned
from time to time during the Term.


                              
1.69 Permitted Leasehold Mortgagee. The term “Permitted Leasehold Mortgagee”
means any of (i) an Institutional Lender, (ii) any of the entities described on
Schedule 8, and (iii) any other entity which has characteristics (as to, among
other things, reputation, financial viability and experience) similar to those
entities listed on said Schedule, as reasonably determined by Tenant, and is
not, at the time of the making of the Permitted Leasehold Mortgage, in
Landlord’s reasonable judgment, in competition with Landlord.


                              
1.70 Person. The term “Person” means any association, bank, business trust,
corporation, estate, general partnership, Government, individual, joint stock
company, joint venture, labor union, limited liability company, limited
partnership, non-profit corporation, professional association, professional
corporation, trust or any other organization of any type or person.


                              
1.71 Personal Property. The term “Personal Property” means all Trade Equipment
as well as supplies and inventory, books and records, intangibles, and any and
all other items of personal property located at the Premises, except, in all
cases, those which are owned by a Third Party Lessor. Under no circumstances
shall the term “Personal Property” be deemed to include any of the USTs, for
which separate provision is made under this Restated Lease.


                              
1.72 Personal Property Letter. The term “Personal Property Letter” means that
certain letter agreement, dated as of the date hereof, between Landlord and
Tenant relating to the ownership of Personal Property located on the Premises.


                              
1.73 Petroleum Terminal Properties. The term “Petroleum Terminal Properties”
means those Properties which are terminals for the storage and distribution of
petroleum products either owned or leased by Landlord or one of its Affiliates
and/or Subsidiaries. As of the date hereof, the Petroleum Terminal Properties
are as set forth on Exhibit J.


13






                              
1.74 Post-Reorganization Leases. The term “Post-Reorganization Leases” means
the 1998 Master Lease, the April 1999 Master Lease, and the September 1999
Master Lease.


                              
1.75 Power Test Lease. The term “Power Test Lease” means a lease between the
Power Test Lessor, as landlord, and Landlord, as tenant, for a Property, as
such lease has been amended as of the date hereof. As used in this definition,
the term “Landlord” shall be deemed to include any Affiliate and/or Subsidiary
of Landlord that is the tenant under any Power Test Lease. The term “Power Test
Leases” shall have the correlative plural meaning.


                              
1.76 Power Test Lease Estoppel Certificate. The term “Power Test Lease Estoppel
Certificate” means a statement in writing containing all of the following
statements (identifying in reasonable detail any exceptions that may exist at
the time), as requested by Tenant: (a) the Power Test Leases have not been
amended or modified, constitute the entire agreement between the Power Test
Lessor and Landlord (which term “Landlord” shall be deemed to include any
Affiliate and/or Subsidiary of Landlord that is the tenant under any Power Test
Lease for the purposes of this definition) relating to the Properties subject
to the Power Test Leases and are in full force and effect (or, if there have
been amendments or modifications, that the Power Test Leases as so amended or
modified are in full force and effect and stating such amendments or modifications);
(b) neither the Power Test Lessor nor Landlord is in material default under the
Power Test Leases and, to the best of the Power Test Lessor’s knowledge, no
facts or circumstances exist that, with the passage of time or the giving of
notice or both, would constitute material defaults under the Power Test Leases
by the Power Test Lessor or Landlord (or, if there have been any material
defaults or potential material defaults, specifying the nature of any such
material default or potential material default); (c) Landlord has paid all rent
to date; (d) any then-ascertainable date relevant to the Power Test Leases; and
(e) such other matters as Tenant shall reasonably request.


                              
1.77 Power Test Lessor. The term “Power Test Lessor” means Power Test Realty
Company Limited Partnership and its successors and assigns, as lessor under the
Power Test Leases.


                              
1.78 Premises. The term “Premises” shall have the meaning set forth in the
first Recital paragraph of this Restated Lease, except that the term “Premises”
shall not be deemed to include any Property which may be deleted from this
Restated Lease from time to time (a) pursuant to the express provisions of
Article 13, 14, 15, 22 or 25 of this Restated Lease; or (b) by the mutual
agreement of the parties hereto.


                              
1.79 Prime Rate. The term “Prime Rate” means the prime rate or equivalent
“base” or “reference” rate for corporate loans that, at Landlord’s election, by
Notice to Tenant, is: (a) published from time to time in the Wall Street
Journal; (b) announced from time to time by the commercial banking unit of the
Chase Manhattan Corporation, New York, New York, or any other large United
States “money center” commercial bank designated by Landlord; or (c) if such
rate is no longer so published or announced, then a reasonably equivalent rate
published by an authoritative third party designated by Landlord.
Notwithstanding anything to the contrary in this Section, the Prime Rate shall
never exceed the highest rate of interest legally permitted to be


14






charged
in transactions of the character of this Restated Lease between parties of a
character similar to Landlord and Tenant.


                              
1.80 Prohibited Liens. The term “Prohibited Lien” means any mechanic’s,
vendor’s, laborer’s or material supplier’s statutory lien or other similar lien
arising by reason of work, labor, services, equipment or materials supplied, or
claimed to have been supplied, to Tenant, which lien either: (a) is filed
against the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned
by a Third Party Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or the
Power Test Lessor or (b) is filed against the Leasehold Estate and, upon
termination of this Restated Lease, would under the Law of the State attach to
the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a
Third Party Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or the Power
Test Lessor. Notwithstanding anything to the contrary in this Restated Lease,
an Equipment Lien shall not constitute a Prohibited Lien and nothing in this
Restated Lease shall prohibit Tenant and/or Subtenant from creating, or require
Tenant and/or Subtenant, as the case may be, to remove, any Equipment Lien
except upon termination of this Restated Lease.


                              
1.81 Property. The term “Property” shall have the meaning set forth in the
first Recital paragraph of this Restated Lease, except that the term “Property”
shall not be deemed to include any property which may be deleted from this
Restated Lease from time to time (a) pursuant to the express provisions of
Article 13, 14, 15, 22 or 25 or (b) by the mutual agreement of the parties
hereto. The term “Properties” shall have the correlative plural meaning.


                              
1.82 Real Estate Taxes. The term “Real Estate Taxes” means all taxes and special
and general assessments that may be assessed, levied, confirmed, imposed or
become a lien on any Property (other than on account of any actions or
omissions of Landlord, a Third Party Lessor, the Leemilt’s Lessor, the
Gettymart Lessor, or the Power Test Lessor or conditions existing on, at or
with respect to any such Property before the applicable Commencement Date) by
or for the benefit of any Government with respect to any period during the
Term, together with any taxes, assessments and occupancy taxes that may be
levied, assessed or imposed by any Government in lieu of or as a substitute, in
whole or in part, for any of the foregoing. Notwithstanding the foregoing, all
such items referred to above which are the obligation of a lessee under a Third
Party Lease, the Leemilt’s Lease, the Gettymart Lease, and a Power Test Lease
(except to the extent, if any, such item is included as Fixed Rent hereunder)
are also “Real Estate Taxes.” The term “Real Estate Taxes” shall, however, not
include any of the following, all of which Landlord shall pay before delinquent
or payable only with a penalty: (a) any franchise, income, excess profits,
estate, inheritance, succession, transfer, gift, corporation, business, capital
levy, or profits tax, or license fee (other than a license fee imposed with
respect to any Property or the Improvements thereon the maintenance of which is
Tenant’s responsibility pursuant to the terms of this Restated Lease) of
Landlord, (b) the incremental portion of any of the items listed in this
Section that would not have been levied, imposed or assessed but for any sale
or other direct or indirect transfer of the Fee Estate or of any interest in
Landlord during the Term, (c) any charges that would not have been payable but
for any act or omission of Landlord or conditions existing on, at or with
respect to any Property before the applicable Commencement Date, (d) any
charges that are levied, assessed or imposed against any Property during the
Term based on the recapture or reversal of any


15






previous
tax abatement or tax subsidy, or compensating for any previous tax deferral or
reduced assessment or valuation, or based on a miscalculation or
misdetermination of any charge(s) of any kind imposed or assessed with respect
to the Premises, relating to any period(s) before the applicable Commencement
Date, and (e) interest, penalties and other charges with respect to items “a”
through “d.”


                              
1.83 Realty Parent. The term “Realty Parent” means Getty Realty Corp., and its
successors and assigns.


                              
1.84 Remediate. The term “Remediate,” “Remediation,” and/or “Remediated” means
those activities, including investigation, monitoring and, as necessary,
cleaning up, removing, treating, covering or in any other way remediating
Contamination in the environment at or emanating from any Property, including
those Properties set forth on Schedule 2, Schedule 3 and Exhibit C so as to
achieve Closure, but excluding the repair, removal or replacement of USTs,
except as set forth in Section 7.6. The required levels of Remediation at any
particular Property shall be limited solely to those limits in place by the
applicable Government at the time of the Closure.


                              
1.85 Renewal Option. The term “Renewal Option” means the right to renew this
Restated Lease as provided in Section 2.1 hereof.


                              
1.86 Rent. The term “Rent” means Fixed Rent and Additional Rent.


                              
1.87 Restatement Effective Date. The term “Restatement Effective Date” means
the initial acceptance for payment of shares of Company Common Stock (as
defined in the Merger Agreement) pursuant to the Offer (as defined in the
Merger Agreement).


                              
1.81A Restatement Effective Time. The term “Restatement Effective Time” means
the time which is two (2) hours prior to the time that the conditions referred
to in the definition of Restatement Effective Date have been satisfied.


                              
1.88 September 1999 Master Lease. The term “September 1999 Master Lease” means
that certain Master Lease, dated September 30, 1999, between Landlord and
Tenant.


                              
1.89 Service Station Properties. The term “Service Station Properties” means
Properties which are currently used to sell motor fuels or convenience store
items or both, and in some instances are used for motor vehicle repairs and/or
other services ancillary to the sale of motor fuels or convenience store items.


                              
1.90 State. The term “State” means the State or Commonwealth where the Properties
are located.


                              
1.91 Sublease. The term “Sublease” means any sublease or sub-sublease of any
Property or any part of any Property, or any other agreement or arrangement
(including a license agreement, occupancy agreement or concession agreement)
made by Tenant granting any third party the right to occupy, use or possess any
Property or any portion of any Property, including, without limitation, those
subleases between Tenant and lessee-dealers with respect to certain Service
Station Properties. The term “Subleases” shall have the correlative plural
meaning.


16






                              1.92
Subsidiary. The term “Subsidiary” means, with respect to any Person, any other
Person (i) in which such Person owns directly, or indirectly through one or
more subsidiaries, more than fifty percent (50%) of the voting or beneficial
interest, or (ii) which such Person otherwise has the right or power to control
(whether by contract, through ownership of securities or otherwise). The term
“Subsidiaries” shall have the correlative plural meaning.


                              
1.93 Substantial Casualty. The term “Substantial Casualty” means any Casualty
that, in Tenant’s reasonable judgment, renders a Property unsuitable for the
then current use of such Property at the time of the Casualty.


                              
1.94 Substantial Condemnation. The term “Substantial Condemnation” means any
Condemnation that, in Tenant’s reasonable judgment, renders the remaining
portion of a Property unsuitable for the conduct of the then current use of the
Property at the time of the Condemnation. Tenant may waive its right to treat
as a Substantial Condemnation any Condemnation that would otherwise qualify as
such.


                              
1.95 Subtenant. The term “Subtenant” means any person having rights of
occupancy, use or possession under a Sublease, and any concessionaires,
occupants and licensees that Tenant elects to treat as Subtenants, including,
without limitation, lessee-dealers subleasing any Service Station Property.


                              
1.96 Temporary Condemnation. The term “Temporary Condemnation” means a Condemnation
relating to the temporary right to use or occupy a Property or any part of a
Property.


                              
1.97 Tenant. The term “Tenant” means (a) for certain Service Station Properties
located in the Mid-Hudson Valley, Kingston Oil Supply Corp. and for all other
Service Station Properties, Getty Petroleum Marketing Inc. and (b) for certain
Petroleum Terminal Properties located in the Mid-Hudson Valley, Kingston Oil
Supply Corp. and for all other Petroleum Terminal Properties, Getty Terminals
Corp., including, in all cases, any and all successors and assigns of such
entities as may be permitted hereunder.


                              
1.98 Tenant Improvements. The term “Tenant Improvements” means any and all
Improvements constructed on any Property by Tenant at any time between the
applicable Commencement Date with respect to such Property and the Restatement
Effective Date and at any time during the Term.


                              
1.99 Tenant’s Award. The term “Tenant’s Award” means, at any point in time, an
amount equal to the then fair market value of the Leasehold Estate in the
applicable Property (including the then fair market value of the rights of
Tenant in and to any Improvements thereon), considered: (i) as if the
Condemnation had not occurred; (ii) without adjusting for any expectation of
the Condemnation; (iii) as if this Restated Lease had not terminated with
respect to the applicable Property as of the effective date of the
Condemnation; and (iv) taking into account the benefits and burdens of this
Restated Lease, the remaining Term (as further defined in this definition), all
Permitted Exceptions, and all other matters affecting such Leasehold Estate and
its valuation. For the purposes of calculating “Tenant’s Award,” the term of
this Restated Lease


17






shall
include only those Renewal Terms for which Tenant had previously exercised its
Renewal Option in accordance with the provisions of this Restated Lease.
“Tenant’s Award” shall be determined independently of, and without regard to,
any valuation of the Leasehold Estate established in any Condemnation
proceeding.


                              
1.100 Tenant’s Condemnation Share. The term “Tenant’s Condemnation Share” means
the following fraction:


	
  

 
	
 Tenant’s Award

 
	
 


 
	
 The sum of Tenant’s Award and 

 Landlord’s Award

 



                              1.101
Termination Date. The term “Termination Date” means the date when this Restated
Lease terminates or expires (i) for the Premises, whether pursuant to the
expiration of the Term as provided for in this Restated Lease or pursuant to
Landlord’s exercise of remedies upon occurrence of a Material Monetary Event of
Default or (ii) for any Property, (a) pursuant to the express provisions of
Article 13, 14, 15, 22 or 25 of this Restated Lease or (b) by the mutual
agreement of the parties hereto to delete such individual Property from this Restated
Lease.


                              
1.102 Third Party Lease. The term “Third Party Lease” means a lease between a
Third Party Lessor, as landlord and Landlord, or an Affiliate and/or Subsidiary
of Landlord, as tenant, for any Property. The Power Test Lease, the Leemilt’s
Lease, and the Gettymart Lease are not Third Party Leases for any purpose
hereunder.


                              
1.103 Third Party Lease Estoppel Certificate. The term “Third Party Lease
Estoppel Certificate” means a statement in writing containing all of the
following statements (identifying in reasonable detail any exceptions that may
exist at the time), as requested by Tenant: (a) the applicable Third Party
Lease has not been amended or modified, constitutes the entire agreement
between the Third Party Lessor and Landlord relating to the Property subject to
such Third Party Lease and is in full force and effect (or, if there have been
amendments or modifications, that such Third Party Lease as so amended or
modified is in full force and effect and stating such amendments or
modifications); (b) neither the Third Party Lessor nor Landlord is in default
under such Third Party Lease and, to the best of the Third Party Lessor’s
knowledge, no facts or circumstances exist that, with the passage of time or
the giving of notice or both, would constitute a default under the Third Party
Lease by the Third Party Lessor or Landlord (or, if there have been any
defaults or potential defaults, specifying the nature of any such default or
potential default); (c) Landlord has paid all rent to date; (d) any
then-ascertainable date relevant to the Third Party Lease; and (e) such other
matters as Tenant shall reasonably request.


                              
1.104 Third Party Lease Spread. The term “Third Party Lease Spread” means an
amount equal to the difference between (a) the Original Term Rent Allocation
(as defined in Section 22.2.2) with respect to a Property subject to a Third
Party Lease and (b) the rental due and payable by Landlord to the Third Party
Lessor of such Property immediately prior to the expiration of the term of such
Third Party Lease.


18






                              1.105
Third Party Lease Renewal Option. The term “Third Party Lease Renewal Option”
means any right to extend and renew a Third Party Lease for a renewal term.


                              
1.106 Third Party Lessor. The term “Third Party Lessor” means a Person who owns
a Property and leases it to Landlord or an Affiliate and/or Subsidiary of
Landlord.


                              
1.107 Trade Equipment. The term “Trade Equipment” means all furniture,
furnishings, trade fixtures and equipment installed or used on the Premises by
Tenant or any Subtenant from time to time during the Term, other than those
which may be owned by a Third Party Lessor.


                              
1.108 Transfer Tax Agreement. The term “Transfer Tax Agreement” means that
certain Tax Indemnity Agreement between Landlord and Tenant dated as of the
date hereof.


                              
1.109 Unavoidable Delay. The term “Unavoidable Delay” means a delay in the
performance of any obligation under this Restated Lease (excluding in any case
any obligation to pay money) arising from or on account of any cause whatsoever
beyond the reasonable control of the person required to perform, including
strikes, labor troubles, litigation, Casualty, Condemnation, accidents, Laws,
governmental preemption, war, riots, and other causes beyond such party’s
reasonable control, whether similar to or dissimilar to the causes specifically
enumerated in this Section. In no event shall Unavoidable Delay be deemed to
include any delay caused by a Person’s financial condition.


                              
1.110 Uneconomic. The term “Uneconomic” means the cost to cure an Eligible
Legal Violation is not economically practicable, given the business being
conducted at a particular Property and the cost of curing such violation.


                              
1.111 Use Restriction Event. The term “Use Restriction Event” means, with
respect to a Property, the date when, (a) as a result of the enactment of a
final, non-appealable change in Law, the use of such Property as of the
Restatement Effective Date as a Service Station Property or a Petroleum
Terminal Property, as applicable, is no longer permitted; (b) as a result of
any non-appealable action by the Government, Tenant is no longer able to use
the Property for its use as of the Restatement Effective Date, provided that
(i) such action by the Government did not result, either directly or
indirectly, from the acts or omissions of Tenant, Subtenant or their respective
agents, contractors, employees, licensees or invitees, (ii) such action of the
Government was not a Law enforcement or violation related action and was more
in the nature of a change in zoning or a Condemnation-like action, and (iii)
such action of the Government was unrelated to Environmental Laws; or (c) as a
result of any non-appealable or unappealable (by Landlord or Tenant) action by
Government access to such Property is materially denied to Tenant or Tenant’s
customers or invitees. Anything contained in the foregoing sentence to the
contrary notwithstanding, a “Use Restriction Event” shall not be deemed to
occur in the event that the use of any such Property as of the Restatement
Effective Date is or becomes a permissible non-conforming use under applicable
Law such that Tenant is not permitted to rebuild or reconstruct such Property
for its current use as of the Restatement Effective Date after the occurrence
of a Casualty or Condemnation.


19






                              1.112
UST. The term “UST” means an underground storage tank including related piping,
underground pumps, wiring and their monitoring devices. The term “USTs” shall
have the correlative plural meaning.


                              
1.113 UST Upgrade. The term “UST Upgrade” means the replacing, upgrading or
closure of UST systems (tanks and connective piping) in accordance with 40
C.F.R. Part 280 or similar Government requirements in effect on the
Commencement Date of the 1997 Master Lease.


                              
1.114 Waiver of Subrogation. The term “Waiver of Subrogation” means a provision
in, or endorsement to, any insurance policy required by this Restated Lease, by
which the insurance carrier agrees to waive all rights of recovery by way of
subrogation against either party to this Restated Lease in connection with any
loss covered by such insurance policy.


                    2.
TERM.


                              
2.1 Initial Term and Renewal Term(s). The initial term of this Restated Lease
(the “Initial Term”) shall commence on the Restatement Effective Date. The
Initial Term shall end immediately prior to the fifteenth (15th) anniversary of
the Restatement Effective Date. Except as provided or otherwise set forth to
the contrary in Article 22, Tenant shall have the absolute and unconditional
right and option (each such right and option, a “Renewal Option”) to extend and
renew this Restated Lease as to all but not less than all of the Properties
then demised by this Restated Lease at the time of such extension and renewal
upon the same terms and conditions (except to the extent Rent may be adjusted
as required hereunder) as this Restated Lease, for four (4) additional successive
periods, with the first three (3) being of ten (10) years each and the last one
being of three (3) years and ten (10) months (each such renewal period, a
“Renewal Term”) following expiration of the Initial Term. Tenant shall exercise
each Renewal Option, if at all, by giving Landlord Notice thereof (in
compliance with this Restated Lease) at least thirteen (13) months before the
first day of the corresponding Renewal Term. Wherever this Restated Lease
refers to the “Term,” such reference means the Initial Term as extended from
time to time, pursuant to Tenant’s Renewal Option(s), to include one or more
Renewal Term(s), so that upon Tenant’s exercise of any Renewal Option(s), the
“Term” shall include the corresponding Renewal Term. At the expiration or termination
of the final Renewal Term provided for below, Tenant shall have no further
rights to renew or extend this Restated Lease. The Renewal Options and Renewal
Terms are as follows:


	
  

 	
  

 
	
  

 	
           
 2.1.1 First Renewal Term. The “First Renewal Term” shall be for a period of
 ten (10) years beginning on the fifteenth (15th) anniversary of the
 Restatement Effective Date and ending immediately prior to the twenty-fifth
 (25th) anniversary of the Restatement Effective Date.

 
	
  

 	
  

 
	
  

 	
           
 2.1.2 Second Renewal Term. The second Renewal Term shall be for a period of
 ten (10) years beginning on the twenty-fifth (25th) anniversary of the
 Restatement Effective Date and ending immediately prior to the thirty-fifth
 (35th) anniversary of the Restatement Effective Date.

 



20






	
  

 	
  

 
	
  

 	
           2.1.3
 Third Renewal Term. The third Renewal Term shall be for a period of ten (10)
 years beginning on the thirty-fifth (35th) anniversary of the Restatement
 Effective Date and ending immediately prior to the forty-fifth (45th) anniversary
 of the Restatement Effective Date.

 
	
  

 	
  

 
	
  

 	
           
 2.1.4 Fourth Renewal Term. The fourth and final Renewal Term shall be for a
 period of three (3) years and ten (10) months, beginning on the forty-fifth
 (45th) anniversary of the Restatement Effective Date and ending immediately
 prior to the forty-eighth (48th) and ten (10) month anniversary of the
 Restatement Effective Date.

 



                              
2.2 Default by Tenant. Provided only that this Restated Lease has not been
terminated and that no uncured Material Monetary Event of Default then exists
hereunder, there shall be no conditions (express or implied) to Tenant’s
exercise of any Renewal Option(s) for the Premises (except as set forth in
Article 22 at it pertains to Third Party Leases).


                              
2.3 Title to Tenant Improvements and Personal Property. Notwithstanding
anything to the contrary in this Restated Lease, all Tenant Improvements and
all Personal Property owned by Tenant located in, on or at any Property or otherwise
constituting part of the Premises shall at all times during the Term be owned
by, and shall belong to, Tenant. All the benefits and burdens of ownership of
the foregoing shall be and remain in Tenant during the Term.


                    
3. RENT.


                              
3.1 Fixed Rent. Throughout the Initial Term and all Renewal Terms, Tenant shall
pay Landlord, without notice or demand, in lawful money of the United States of
America, at Landlord’s office or as Landlord shall otherwise designate, a net
annual rental (the “Fixed Rent”) as follows:


	
  

 	
  

 
	
  

 	
           3.1.1
 Calculation of Fixed Rent. During the first Lease Year, Fixed Rent shall be
 $57,729,216 (or $4,810,768 per month), as adjusted pursuant to this Article.
 The Fixed Rent during the Initial Term and all Renewal Terms shall be
 adjusted in accordance with the Fixed Rent Adjustment Procedures at the time
 that any Property may be deleted from this Restated Lease (a) pursuant to the
 express provisions of Article 13, 14, 15, 22 or 25 of this Restated Lease; or
 (b) by the mutual agreement of the parties hereto.

 
	
  

 	
  

 
	
  

 	
           3.1.2
 Rent Escalations. At the beginning of each Lease Year commencing after the
 first Lease Year, the Fixed Rent for such Lease Year shall be increased by an
 amount equal to two percent (2%) of the Fixed Rent in effect at the end of
 the immediately preceding Lease Year, after giving effect to any adjustment
 to such Fixed Rent required under Section 3.1.1.

 



                              
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


21






 end of the Term shall be prorated based on
the number of days in such month within the Term divided by the total number of
days in the entire month. Tenant shall pay all Rent payable to Landlord by wire
transfer of currently available federal funds to Landlord’s bank account as
designated by Landlord.


                              
3.3 Additional Rent. In addition to Fixed Rent, Tenant shall pay Landlord, as
additional rent under this Restated Lease, all Additional Rent within twenty
(20) days after receipt of invoice therefor or as otherwise set forth in
Article 4.


                              
3.4 No Allocation to Personal Property; Allocation to Royalty Fee. None of the
Rent provided for under this Restated Lease is allocable to any personal
property included in the Premises. Notwithstanding anything to the contrary
contained herein or in the License Agreement, a sum equal to Two Million
Dollars ($2,000,000) (as escalated pursuant to the provisions of Section 3.1.2
above) of the Fixed Rent payable hereunder per Lease Year shall be deemed to
constitute payment for the granting by Landlord to Tenant of an exclusive license
to use the Licensed Marks (as defined in the License Agreement) on the terms
and conditions set forth in the License Agreement (such annual payment being
referred to herein as the “Royalty Fee”). Notwithstanding the foregoing, if the
License Agreement terminates for any reason during the Term, then the amount of
Fixed Rent payable hereunder per annum shall be deemed to be increased by an
amount equal to the Royalty Fee that would have been payable had the License
Agreement not terminated. The net effect of the foregoing is that the amount
paid by Tenant to Landlord under Section 3.1 shall not be affected by the
termination of the License Agreement.


                              
3.5 Offsets. Except as specifically provided in Section 31.1 hereof and except
as provided below, Tenant shall pay all Rent without offset, defense, claim,
counterclaim, reduction, deduction, or exercise of recoupment rights of any
kind whatsoever. Notwithstanding anything to the contrary in this Restated
Lease, Tenant shall be entitled to offset against Rent an amount equal to any
of the following obligations required to be performed by Landlord (a) except as
otherwise provided in clause (b), to the extent Landlord fails to perform any
such obligation within thirty (30) days after Tenant shall have delivered to
Landlord a Notice describing such failure in reasonable detail; or (b) in the
case of a failure that cannot with due diligence be cured within thirty (30)
days from such Notice, to the extent that Landlord does not (x) within 30 days
from Tenant’s Notice advise Tenant of Landlord’s intention to take all
reasonable steps necessary to remedy such failure, (y) duly commence the cure
of such failure within such period, and then diligently prosecute to completion
the remedy of such failure and (z) complete such remedy within a reasonable
time under the circumstances.


	
  

 	
  

 
	
  

 	
           3.5.1
 Landlord’s UST Upgrade obligation pursuant to Section 7.6 at the Properties
 set forth in Schedule 2, to the extent Tenant is required to expend monies
 therefor;

 
	
  

 	
  

 
	
  

 	
           3.5.2
 Landlord’s obligation pursuant to Section 9.1 with respect to (a) the ongoing
 Remediation at the Properties set forth on Schedule 3 and (b) any Remediation
 required as a result of any Contamination resulting from UST Upgrades at the
 Properties set forth on Schedule 2 and Exhibit C, to the extent Tenant is
 required to expend monies therefor; and

 



22






	
  

 	
  

 
	
  

 	
           3.5.3
 Landlord’s obligation pursuant to the Environmental Agreement, to the extent
 Tenant is required to expend monies therefor.

 



Notwithstanding
anything to the contrary contained herein or in the Environmental Agreement,
if, at any time after the date hereof, UST Upgrade or Closure has been
completed, as applicable, with respect to any Property set forth on Schedule 2,
Exhibit C or Schedule 3 by Landlord as required under this Restated Lease,
Tenant shall have no right to any offset against Rent with respect to any such
Property from and after the date on which such UST Upgrade or Closure has been
completed, as applicable, with respect to such Property. In the event that
Tenant elects to offset any amount against Rent in accordance with this Section
3.5 or Section 31.1, Tenant shall give Landlord Notice of such election to
offset at least twenty (20) days prior to effecting the same, which Notice
shall include the amount that Tenant plans to offset and the timing of such
offset.


                    
4. ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS.


                              
4.1 Landlord’s Net Return. The parties intend that this Restated Lease shall
constitute a “net lease,” so that the Rent shall provide Landlord with “net”
return for the Term, free of any expenses or charges with respect to the
Premises, except as specifically provided in this Restated Lease. Accordingly,
except as specifically set forth to the contrary in this Restated Lease, the
Environmental Agreement or the Transfer Tax Agreement, Tenant shall pay as
Additional Rent and discharge, before failure to pay the same shall create a
material risk of forfeiture or give rise to a penalty, each and every item of
expense, of every kind and nature whatsoever, related to or arising from the
Premises, or by reason of or in any manner connected with or arising from the
development, leasing, operation, management, maintenance, repair, use or
occupancy of the Premises or any Property or any portion thereof.
Notwithstanding anything to the contrary in this Restated Lease, Tenant shall
not be required to pay any of the following incurred by Landlord: (a) principal,
interest, or other charges payable under any Fee Mortgage; (b) depreciation,
amortization, brokerage commissions, financing or refinancing costs, management
fees or leasing expenses incurred by Landlord with respect to any Property; (c)
consulting, overhead, travel, legal, staff, and other similar costs incidental
to Landlord’s ownership of its fee or leasehold interest in any Property, other
than Legal Costs that Tenant has expressly agreed to pay; (d) any costs arising
from or pursuant to any instrument or agreement affecting any Property that is
not a Permitted Exception and to which Landlord is a party and Tenant is not a
party; and (e) the obligations of Landlord set forth in Section 7.6 and Section
9.1 of this Restated Lease, in the Environmental Agreement, or in the Transfer
Tax Agreement.


                              
4.2 Impositions. Subject to Tenant’s right to contest set forth in Section
11.1, for any period within the Term (with daily prorations for periods
partially within the Term and partially outside the Term), Tenant shall pay and
discharge all Real Estate Taxes pursuant to the procedures set forth in Section
4.4 or Section 4.5 and shall pay and discharge, before failure to pay the same
shall create a material risk of forfeiture or give rise to a penalty, all other
Impositions. Tenant shall pay all interest and penalties assessed by any
Government on account of late payment of any Real Estate Taxes, unless such
late payment was caused by (a) Landlord’s failure to promptly forward to Tenant
or Depository, as applicable, a copy of any tax or other bill related to any
such Real Estate Tax received by Landlord or (b) Landlord’s failure to timely
pay


23






any
such Real Estate Tax after it has timely received Tenant’s or Depository’s
payment with respect thereto as provided in Section 4.4 or 4.5, in which case
Landlord shall pay such interest and penalties. Except as otherwise provided
herein, Tenant shall also pay interest and penalties assessed by any Government
on account of late payment of any other Imposition (paid to Landlord by
Tenant), except late payment caused by Landlord’s failure to remit any such
Imposition in accordance with Tenant’s reasonable instructions or Landlord’s
failure to promptly forward Tenant a copy of any tax or other bill related to
any such Imposition received by Landlord, in which case Landlord shall pay such
interest and penalties. Tenant shall within a reasonable time after Notice from
Landlord provide Landlord with reasonable proof that Tenant has paid or escrowed,
as applicable, any Imposition(s) that this Restated Lease requires Tenant to
have paid or escrowed, as applicable. Landlord shall be entitled to any refund
of any Impositions (and penalties and interest paid by Landlord) and interest
earned thereon to the extent such Imposition was due and payable prior to the
applicable Commencement Date based on Landlord’s prior overpayment of such
Imposition, and Tenant shall remit to Landlord any amounts received by Tenant
on account of such overpayment promptly upon receipt of the same. Tenant shall
be entitled to any refund of any Impositions (and penalties and interest paid
by Tenant) and interest earned thereon to the extent such Imposition was due
and payable on or after the applicable Commencement Date based upon Tenant’s
prior overpayment of such Imposition, whether such refund is made during or
after the Term, and Landlord shall remit to Tenant any amounts received by
Landlord on account of such overpayment promptly upon receipt of the same.


                              
4.3 Assessments in Installments. To the extent that it may be permitted by
applicable Law and by the applicable Third Party Lease, Tenant shall have the
right to apply for conversion of any Imposition to cause it to be payable in
installments. After any such conversion, Tenant shall pay and discharge only
such installments of any such Impositions as shall become due and payable
during the Term, provided that any payment relating to periods prior to the
expiration of this Restated Lease shall be paid prior to the Termination Date.


                              4.4
Deposits for Real Estate Taxes.


	
  

 	
  

 
	
  

 	
           4.4.1
 Advanced Real Estate Tax Payments. Due to the number of properties demised by
 this Restated Lease, Real Estate Taxes will be due and payable with respect
 to at least one Property during each calendar month of each Lease Year. In
 order to assure the timely payment of all Real Estate Taxes, Tenant shall
 deposit with Landlord on the first day of each calendar month during the Term
 a sum equal to the amount of Real Estate Taxes due and payable in the next
 calendar month (such sum being referred to hereinafter as the “Monthly Tax
 Payment”). The amount of each Monthly Tax Payment shall be determined by
 reference to the Monthly Tax Payment for the corresponding calendar month of
 the previous Lease Year, as adjusted to reflect any reassessment, tax
 increase or change of due date therefor of which Tenant has received Notice
 from Landlord at least twenty (20) days prior to the date on which such Monthly
 Tax Payment is due and payable. For the first Lease Year, the amount of
 Monthly Tax Payment shall be determined by reference to Schedule 10, as
 adjusted to reflect any reassessment, tax increase or change of due date
 therefor of which Tenant has received Notice from Landlord at least twenty
 (20) days prior to the date on which

 



24






	
  

 	
  

 
	
  

 	
 such
 Monthly Tax Payment is due. In addition, on or prior to the Restatement
 Effective Date, Tenant shall deposit with the Landlord a sum of money equal
 to the amount of Real Estate Taxes due in the calendar month in which the
 Restatement Effective Date occurs and the following calendar month, as
 determined by reference to Schedule 10, as adjusted to reflect any
 reassessment, tax increase or change of due date therefor of which Tenant has
 received Notice from Landlord at least twenty (20) days prior to the
 Restatement Effective Date. Notwithstanding the foregoing, if Tenant does not
 receive any Notice of adjustment from Landlord with respect to a Monthly Tax
 Payment referred to in this Section at least twenty (20) days prior to the
 date on which such Monthly Tax Payment is due, then Tenant shall, within
 twenty (20) days after receipt of such Notice of adjustment from Landlord,
 deposit with Landlord such additional funds as may be required under such
 Notice. By way of example, if the Restatement Effective Date occurs on
 January 12, 2001, then Tenant shall deposit with Landlord on such date an
 amount equal to the Real Estate Taxes due during the months of January and
 February of such year, as determined by reference to Schedule 10, as adjusted
 pursuant to the preceding provisions. On February 1, 2001, Tenant shall
 deposit with Landlord an amount equal to the Real Estate Taxes due in the
 month of March of such year, as so adjusted, and so on throughout the Term of
 this Restated Lease. Notwithstanding the foregoing or anything else to the
 contrary contained herein, if the funds deposited pursuant to the preceding
 provisions are insufficient to pay any Real Estate Tax at least twenty (20)
 days before such Real Estate Tax is due and payable without penalty or
 interest, Tenant shall, within twenty (20) days after receipt of demand
 therefor from Landlord, deposit with Landlord such additional funds as may be
 necessary to pay any such Real Estate Tax in full. If the Monthly Tax Payment
 so deposited pursuant to this Section exceeds the amount required to pay the
 Real Estate Taxes due and payable for any month, the excess shall be credited
 against the Monthly Tax Payment next due and payable.

 
	
  

 	
  

 
	
  

 	
           4.4.2
 Expiration or Termination. Notwithstanding anything to the contrary contained
 in Section 4.4.1, if this Restated Lease shall expire before any credit
 referred to in Section 4.4.1 shall have been fully applied, Landlord (a)
 shall retain an amount sufficient to pay unpaid Real Estate Taxes to the
 extent such Real Estate Taxes accrue with respect to any period of time
 during the Term and (b) shall refund to Tenant the balance of such credit
 within thirty (30) days after the end of the Term. Notwithstanding the
 foregoing, if this Restated Lease shall have terminated as a result of a
 Material Monetary Event of Default, then all amounts held by Landlord
 pursuant to this Section 4.4 shall belong to Landlord, which amounts shall be
 used by Landlord only to pay Real Estate Taxes that would have accrued if
 this Restated Lease had not terminated as a result of such Material Monetary
 Event of Default. If a Property is deleted from this Restated Lease pursuant
 to the express terms of this Lease (a) pursuant to the express provisions of
 Article 13, 14, 15, 22 or 25; or (b) by the mutual agreement of the parties
 hereto, then the amount required to be deposited by Tenant pursuant to this

 



25






	
  

 	
  

 
	
  

 	
 Section
 4.4 shall thereupon be reduced by an amount equal to the Real Estate Taxes
 attributable to the Property so deleted, but Tenant shall remain liable for
 all such Real Estate Taxes which accrued prior to the date of such deletion.

 



                              
4.5 Leasehold Mortgage Real Estate Tax Deposits. Anything contained in the
foregoing provisions of this Article notwithstanding, if any procedures with
respect to deposits for Real Estate Taxes set forth in a Permitted Leasehold
Mortgage shall be inconsistent with any of the procedures set forth in this
Article or if such Permitted Leasehold Mortgage requires the establishment of a
traditional tax escrow whereby Tenant pays into such escrow an amount equal to
one-twelfth of the Real Estate Taxes due in a particular Lease Year on a
monthly basis, then, to such extent, the procedures set forth in such Permitted
Leasehold Mortgage shall take precedence over, and shall be in lieu of, the
inconsistent procedures set forth in this Restated Lease, except as otherwise
set forth in this Section. Any such Permitted Leasehold Mortgage may provide
that deposits for Real Estate Taxes shall be paid by Tenant to either (a)
Landlord or (b) Depository. In order for deposits for Real Estate Taxes to be
paid by Tenant to Depository, Depository must have previously entered into a
depository agreement with Landlord pursuant to which Depository agrees (i) to
hold all amounts deposited with Depository pursuant to this Section 4.5 in a
segregated, interest-bearing escrow account (which interest may be distributed
to Tenant on a quarterly basis, provided that no uncured Material Monetary
Event of Default then exists hereunder) in the name of Tenant (so as not to be
considered an asset of Depository) for the sole purpose of paying the Real
Estate Taxes for which such amounts shall have been deposited as the same
become due; (ii) to remit to Landlord the aforesaid deposits for such purpose
not later than twenty (20) days prior to the last day on which such Real Estate
Taxes may be paid without penalty or interest; (iii) that in no event shall any
amount deposited with Depository hereunder be deemed to constitute additional
security for any amounts that may be owed by Tenant or any Affiliate or
Subsidiary of Tenant to Leasehold Mortgagee or any Affiliate or Subsidiary of
Leasehold Mortgagee or any other Person, (iv) to otherwise be bound by the
provisions of this Restated Lease, including, without limitation, this Section
4.5. Notwithstanding clause (ii) of the foregoing sentence, such Permitted
Leasehold Mortgage may provide that Depository will pay Real Estate Taxes
directly to the appropriate taxing authority rather than remitting the same to
Landlord pursuant to this Section 4.5. If such Permitted Leasehold Mortgage
provides that Depository will pay Real Estate Taxes directly to the appropriate
taxing authority, then Tenant shall (x) use commercially reasonable efforts to
obtain and furnish to Landlord proof, reasonably satisfactory to Landlord, of
payment by Depository of Real Estate Taxes and (y) furnish to Landlord copies of
any checks that Tenant sends to Depository on account of Real Estate Taxes or
other evidence of payment thereof, except to the extent that a lockbox or
similar arrangement is then in effect such that such amounts are automatically
deposited with Depository.


                              
4.6 Direct Payment by Landlord. If any Imposition or other item of Rent is
required to be paid directly by Landlord, then Landlord shall appoint as
Landlord’s attorney in fact (1) Depository for the purpose of making any such
payment of Real Estate Taxes if Depository is entitled to make such payments
directly pursuant to the provisions of Section 4.5, and (2) Tenant for the
purpose of making any such payment of any other Imposition or other item of
Rent. Notwithstanding the foregoing, if the person entitled to receive such
payment refuses to accept it from Depository or Tenant, as applicable, then
Depository or Tenant, as applicable, shall give Landlord Notice of such fact
and shall remit payment of such Imposition or other item of


26






Rent
to Landlord in a timely manner accompanied by reasonable instructions as to the
further remittance of such payment. Landlord shall with reasonable promptness
comply with the Depository’s or Tenant’s, as applicable, reasonable
instructions and shall Indemnify Depository or Tenant, as applicable, against
Landlord’s failure to do so.


                              
4.7 Tax Lots. In the event that any Property does not constitute a single
parcel separate and apart from any other land for the purpose of Real Estate
Taxes, Landlord shall use its reasonable best efforts to allocate such Real
Estate Taxes on an equitable basis between or among the occupants or users of
the parcel that contains such Property, unless such allocation has been made by
a Third Party Lessor.


                              
4.8 Utilities. Tenant shall pay all fuel, gas, light, power, water, sewage,
garbage disposal, telephone and other utility charges, and the expenses of
installation, maintenance, use and service in connection with the foregoing,
relating to the Premises during the Term.


                    5.
USE.


                              Tenant
may use each Property demised hereunder for a gasoline service station/convenience
store, for the storage and distribution of petroleum products, and/or for any
other lawful purpose, including without limitation, any use that may exist on
any such Property as of the Restatement Effective Date, subject to any
restrictions contained in a Third Party Lease. In using the Premises, Tenant
shall comply, in all material respects, with all restrictions and mandates set
forth in the Permitted Exceptions and the Third Party Leases, where applicable.
Notwithstanding the foregoing, to the extent that any failure to fully comply
in all respects with a restriction or mandate set forth in a Third Party Lease
would cause a default to occur under such Third Party Lease, Tenant shall fully
comply with such restriction or mandate, except as specifically provided in
Section 25.2. Tenant shall not have any obligation to actually operate any
Property or otherwise conduct business of any nature thereon, and Tenant may
discontinue operation of any Property at any time or from time to time, except
as may be required under a Third Party Lease. Landlord shall in no event
declare that Tenant has committed a Default under this Article of this Restated
Lease by reason of Tenant continuing to use such Property in the same manner as
such Property is being used on the Restatement Effective Date. Notwithstanding
the foregoing, nothing contained herein shall be deemed to in any way affect
Landlord’s right to declare that Tenant has committed a Default hereunder to
the extent that, as a result of a change in Law subsequent to the Restatement
Effective Date, Tenant’s then current use of any Property becomes unlawful, and
Tenant continues to operate such Property for such use after such change in Law
becomes effective.


                    
6. COMPLIANCE WITH LAW.


                              
Except as otherwise expressly set forth in Section 7.6, Section 9.1, Article 25
and the Environmental Agreement, Tenant shall during the Term, at Tenant’s
expense: (a) observe and comply with all Laws affecting each Property in all
material respects; (b) procure every material permit, license, certificate or
other authorization required in connection with the lawful and proper
maintenance, operation, use and occupancy of each Property or required in
connection


27






with
any Construction Work or Improvements erected thereon; and (c) comply with all
such permits, licenses, certificates and other authorizations in all material
respects. Notwithstanding the foregoing, Tenant shall have the right to contest
any such Laws in accordance with this Restated Lease.


                    
7. MAINTENANCE AND ALTERATIONS.


                              
7.1 Obligation to Maintain. During the Term, Tenant shall, except as otherwise
expressly provided in this Restated Lease, keep and maintain the Premises and
each Property in good order, condition and repair in all material respects,
subject to Casualty and Condemnation (governed by separate applicable
provisions of this Restated Lease), reasonable wear and tear, and any other
conditions that this Restated Lease does not require Tenant to repair. Tenant’s
obligations to maintain the Premises in the manner set forth in the preceding
sentence shall extend to all repairs that any Property (including plumbing,
heating, air conditioning, ventilating, electrical, lighting, walls, roof,
foundations, ceilings, floors, windows, doors, plate glass, skylights,
landscaping, driveways, parking lots, fences and signs located in, on or at
such Property, together with any sidewalks adjacent to such Property) may
require from time to time during the Term, whether structural or nonstructural,
foreseen or unforeseen, including such repairs as may be required by conditions
in existence at the Commencement Date, except as otherwise provided in the
Environmental Agreement and in Section 25.2, and those Tenant is obligated to
perform under Section 7.6.


                              
7.2 Tenant’s Right to Perform Alterations. Tenant shall have the right, at
Tenant’s sole cost and expense and subject to the provisions of any Third Party
Lease, at any time and from time to time during the Term of this Restated
Lease, to construct, alter, repair, remodel and/or replace any and all
Improvements on any Property and to demolish, raze or otherwise remove the
same, provided that, unless Landlord consents, which consent shall not be
unreasonably withheld, conditioned or delayed, Tenant shall be obligated to
rebuild Improvements at such Property (a) at least equal in value to the
amortized or depreciated cost of the Improvements so demolished, razed, or
removed, as such amortized or depreciated cost is set forth on the most recent
financial statements of Landlord then available; and (b) of the same type,
nature and quality as those that have been demolished, removed, or razed,
unless Tenant’s decision to rebuild on such Property Improvements of a
different type, nature or quality is commercially reasonable under the
circumstances. Except as provided in the immediately preceding sentence, Tenant
shall not be obligated to re-erect any outbuildings, recreational facilities,
service buildings, maintenance sheds or the like which are not material to the
use and operation of such Property. All Tenant Improvements shall be and remain
the property of Tenant throughout the Term and Tenant shall retain all rights
to depreciation and/or amortization deductions and tax credits arising from
ownership thereof. Such Tenant Improvements (subject to the reversionary
interest of Landlord, the Power Test Lessor, the Leemilt’s Lessor, the
Gettymart Lessor and/or the Third Party Lessors therein) shall be considered a
part of Tenant’s Leasehold Estate for purposes of Articles 13 and 14. However,
upon the Termination Date, title to such Tenant Improvements shall be deemed to
be and become part of the realty and the sole and absolute property of Landlord
(or the applicable Third Party Lessor, the Power Test Lessor, the Leemilt’s
Lessor, or the Gettymart Lessor, as the case may be) as of the Termination Date
and shall be surrendered to Landlord at that time, free and clear of the liens
of mortgages, deeds of


28






trust,
liens of mechanics, laborers or materialmen, and all other liens and
encumbrances other than (a) any such liens and encumbrances incurred by
Landlord arising from Landlord’s actions or the actions of any Third Party
Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor,
and (b) any easements or similar rights burdening such Tenant Improvements the
creation of which Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the
Gettymart Lessor, shall have consented to in writing. Upon an early termination
of this Restated Lease, if Leasehold Mortgagee exercises its right to obtain a
new lease and obtains such new lease pursuant to the provisions of Section 26.6
hereof, then title to such Tenant Improvements shall not vest in Landlord if a
new lease is given to a Permitted Leasehold Mortgagee (or its nominee or
designee) as provided for in Section 26.6, but shall vest in Leasehold
Mortgagee (or its nominee or designee), and its successors and assigns as
tenant permitted hereunder, who shall have the right to depreciation and/or
amortization deductions and tax credits arising from ownership of such Tenant
Improvements but title to such Tenant Improvements shall vest in Landlord upon
termination of such new lease. Tenant shall perform all Construction Work in a
good, professional, safe, and workmanlike manner, using licensed and insured
contractors and otherwise in compliance with Law.


                              
7.3 Plans and Specifications. To the extent that Tenant performs or causes to
be performed any Construction Work and obtains plans and specifications or
surveys (including working plans and specifications and “as-built” plans and
specifications and surveys) for such Construction Work, Tenant shall promptly
upon Landlord’s request provide Landlord, for Landlord’s information only, with
a true and complete copy of such plans and specification(s) or survey(s),
subject to the terms of any agreement between Tenant and the applicable outside
architect, engineer or surveyor. Tenant shall exercise reasonable efforts to
cause its agreements with such outside professionals to permit the deliveries
described in this Section.


                              
7.4 Excavations. If an excavation shall be made (or authorized) upon land
adjacent to the Land, then at Tenant’s election Tenant shall either: (a) afford
to the person causing or authorized to cause such excavation, license to enter
the applicable Property, in accordance with Tenant’s reasonable instructions,
to perform such work as such person shall reasonably deem necessary or
desirable, and as Tenant shall reasonably approve, to preserve and protect the
applicable Property from injury or damage and to support the same by proper
foundations, or (b) perform or cause to be performed, without cost or expense
to Landlord in its capacity as Landlord under this Restated Lease, work of the
nature described in clause (a) to the extent reasonably necessary under the
circumstances. Tenant shall not, by reason of any excavations or work described
in this Section, have any claim against Landlord in its capacity as Landlord
under this Restated Lease for damages or for indemnity or for suspension,
diminution, abatement or reduction of any Rent or any claim against the owner
of any Fee Estate subject to a Third Party Lease or a Power Test Lease with
respect to the same.


                              
7.5 Cooperation by Landlord. Upon Tenant’s request, subject to the provisions
of any Permitted Exception, or any Third Party Lease, Landlord shall, without
cost to Landlord, promptly join in and execute and cause the Leemilt’s Lessor,
the Power Test Lessor and the Gettymart Lessor to join in and execute (or
assist Tenant in obtaining the requisite consent of a Third Party Lessor) any
instruments including, but not limited to, applications for building permits,
demolition permits, alteration permits, consents, zoning, rezoning or use


29






approvals,
amendments and variances, easements, encumbrances, and/or liens (excluding
Mortgages) against any Property (Fee Estate and Leasehold Estate), and such
other instruments as Tenant may from time to time request in connection with
Construction Work or to enable Tenant from time to time to use and operate the
Premises in accordance with this Restated Lease, provided each of the foregoing
is in reasonable and customary form and does not cause the Fee Estate or
Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor,
the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor to be
encumbered as security for any obligation and does not otherwise expose the Fee
Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third
Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart
Lessor, to any material risk of forfeiture during or after the Term or any
liens, encumbrances or easements subsequent to Term. Tenant shall reimburse
Landlord’s Legal Costs and all other actual out-of-pocket costs incurred by
Landlord in performing under this Section.


                              
7.6 USTs. Landlord shall complete UST Upgrades for each of the USTs at the
Properties set forth on Schedule 2 and, to the extent required by Law, the
Property set forth on Exhibit C. Tenant shall be responsible for all repair,
maintenance, replacement and removal of all USTs listed on Schedule 2 for which
UST Upgrades have been completed and all other USTs at the Premises, except
Tenant shall not be responsible for the removal or closure in place of the USTs
at the Property set forth on Exhibit C. At the time that an UST Upgrade is
completed at a particular Property set forth in Schedule 2 and Exhibit C,
except for Landlord’s obligations under Section 9.1 to Remediate, if any,
Landlord shall no longer have any responsibility or obligation with respect to
such UST and Tenant shall be solely responsible therefor. In the event that
Tenant exercises the Renewal Option in the First Renewal Term for the Premises
pursuant to the express provision of Section 2.1, on or before the first day of
such First Renewal Term, Landlord shall by a Bill of Sale (containing a
representation by Landlord that it has complied with its UST Upgrade
obligations under this Restated Lease) transfer the USTs under the Properties
listed on Exhibit C (to the extent such USTs have not already been removed from
such Properties) and Schedule 2 to Tenant for nominal consideration, except the
foregoing shall not apply to any USTs owned by any Third Party Lessor.


                    
8. PROHIBITED LIENS.


                              
8.1 Tenant’s Covenant. If at any time during the Term, whether during the
period of construction or reconstruction of buildings, or at any other time,
any Prohibited Liens shall be filed against any Property or any part thereof
relating to work authorized or approved by Tenant or Subtenant or their
respective agents, contractors, or employees in respect of such Property,
Tenant shall, at its expenses cause the same to be discharged, by payment,
bonding or otherwise as provided by Law, within forty-five (45) days after Tenant
receives Notice from Landlord that the Prohibited Lien was filed (but in any
case within fifteen (15) days after receipt of Notice from Landlord of
commencement of foreclosure proceedings), except for such liens that may have
been incurred by Landlord arising from Landlord’s, a Third Party Lessor’s, the
Leemilt’s Lessor’s, the Power Test Lessor’s or the Gettymart Lessor’s actions.
Nothing herein contained shall in any way prejudice the rights of Tenant to
contest to final judgment or decree any such Prohibited Lien prior to payment
thereof pursuant to the provisions of Article 11 hereof. The mere existence of
a Prohibited Lien shall not be construed as a Non-Material Default under this
Restated Lease unless Tenant fails to take action as aforesaid. Should a
Prohibited Lien be


30






filed
against the Premises or any Property as a result of the actions of Landlord,
the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, Landlord
shall, at its sole cost and expense, likewise cause such Prohibited Lien to be
cleared of record.


                              
8.2 Protection of Landlord. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic’s or other lien for any such labor or materials
shall attach to or affect the Fee Estate or Landlord’s leasehold interest in
any Fee Estate subject to a Third Party Lease, the Leemilt’s Lease, a Power
Test Lease, or the Gettymart Lease. Nothing in this Restated Lease shall be
deemed or construed in any way to constitute Landlord’s consent or request,
express or implied, by inference or otherwise, to any contractor,
subcontractor, laborer, equipment or material supplier for the performance of
any labor or the furnishing of any materials or equipment for any improvement,
alteration or repair of, or to, any Property, or any part thereof, nor as
giving Tenant any right, power or authority to contract for, or permit the
rendering of, any services, or the furnishing of any materials that would give
rise to the filing of any liens against the Fee Estate or Landlord’s leasehold
interest in any Fee Estate subject to a Third Party Lease, the Leemilt’s Lease,
or a Power Test Lease, or the Gettymart Lease. Nothing contained in the
preceding sentence shall be deemed to require Landlord’s consent to such
matters. Tenant shall Indemnify Landlord against any Construction Work
performed on any Property for or by Tenant, including any Prohibited Lien
arising from such Construction Work performed by or on behalf of Tenant or
Subtenant or their respective agents, contractors, or employees.


                    
9. ENVIRONMENTAL MATTERS.


                              
9.1 Landlord Remediation. Landlord shall, at Landlord’s expense, Remediate the
Contamination at or emanating from the Properties set forth on Schedule 3 and
any Contamination resulting from the UST Upgrades at the Properties set forth
on Schedules 2 and Exhibit C. Landlord’s obligation to Remediate Contamination
at any of the Properties on Schedule 2, Schedule 3 and Exhibit C shall continue
until Closure is obtained for the particular Properties. Landlord shall be
entitled to the benefit of any government reimbursement funds that may be
available for such Remediation of Contamination by Landlord. Landlord or its
agents shall control administrative efforts to recover such reimbursement at
Landlord’s sole cost and expense.


	
  

 	
  

 
	
  

 	
           9.1.1
 Negotiations. Landlord or its agents shall conduct all negotiations with the
 Government for the Remediation of the Contamination for which Landlord is
 responsible under Section 9.1; provided, however, Tenant may attend, but not
 actively participate in any such negotiations, and provided further that
 Tenant may take such actions as may be necessary to ensure that it can
 continue to operate the Property, such actions to be at Tenant’s sole cost
 and expense. Landlord shall not negotiate Closure limits less stringent than
 required by applicable Law. Tenant agrees that it shall not independently negotiate
 with the Government in connection with Landlord’s Remediation of
 Contamination under Section 9.1. Further, Tenant shall not negotiate Closure
 limits more stringent than required by applicable Law. Landlord shall provide
 Tenant with copies of any correspondence or documents it provides to or
 receives from the Government

 



31






	
  

 	
  

 
	
  

 	
 relating
 to its Remediation of Contamination under Section 9.1. Tenant shall provide
 Landlord with copies of any correspondence or documents it provides to or
 receives from the Government relating to Landlord’s Remediation of
 Contamination under Section 9.1.

 
	
  

 	
  

 
	
  

 	
           9.1.2
 New Contamination. If New Contamination is discovered at or emanating from
 any of the Properties being Remediated by Landlord under Section 9.1, but prior
 to Closure, Tenant shall make all reporting or notification required by the
 Environmental Laws, shall promptly notify Landlord, and shall act promptly to
 minimize the effects of the New Contamination. If Landlord reasonably
 determines that such New Contamination will make Landlord’s Remediation at
 the applicable Properties more expensive, more difficult or will extend the
 time required to complete the Remediation, Landlord and Tenant agree to
 secure promptly the services of an environmental consultant (the
 “Environmental Consultant”), mutually acceptable to Landlord and Tenant, who
 shall make an assessment of the Contamination and New Contamination,
 including the remaining cost to complete Landlord’s Remediation absent the
 New Contamination and an estimate of the cost of the additional work that
 will be required due to the New Contamination. Based upon this assessment,
 the Environmental Consultant shall make an apportionment of the costs and
 Tenant shall begin paying Landlord for the additional expenses incurred by
 Landlord in remediating the New Contamination. At Tenant’s election, and with
 Landlord’s consent, which shall not be unreasonably withheld, Tenant may
 assume the Remediation of the New Contamination. Further, Landlord and Tenant
 may negotiate a transfer of the Remediation responsibility for the
 Contamination and New Contamination from Landlord to Tenant with the costs of
 such Remediation continuing to be shared between Landlord and Tenant as set
 forth in this Section. If such transfer of Remediation responsibility is
 made, Tenant shall execute and deliver to Landlord a release of Remediation
 liability for the Contamination, and such release shall include an assignment
 to Tenant of Landlord’s rights to reimbursement from the state reimbursement
 fund, if any for the applicable Property. Tenant covenants to pay to Landlord
 within forty-five (45) days of receipt of Notice from Landlord, with evidence
 of payment by Landlord, all costs associated with Landlord’s Remediation of
 the New Contamination as Remediation work is performed and as invoices for
 such work are presented to Landlord.

 
	
  

 	
  

 
	
  

 	
           9.1.3
 Access. Tenant shall provide for and permit access, at no cost to Landlord,
 as Landlord and its employees, agents, and contractors may require to each of
 the Properties under Schedule 2, Schedule 3 and Exhibit C, as is required for
 Landlord to meet all environmental obligations for Remediation of
 Contamination or for UST Upgrades. Such access shall include the right to
 conduct such tests, take such groundwater or soil samples, excavate, remove,
 dispose of, and treat the soil and groundwater, and undertake such other
 actions as are necessary in the sole judgment of Landlord. Landlord shall
 expeditiously remove from the applicable Property as soon as reasonably practicable
 or as required by Environmental Law all drums containing drill cuttings,
 soil, debris or

 



32






	
  

 	
  

 
	
  

 	
 liquids
 generated from Landlord’s Remediation or investigation activities. Landlord
 shall restore the surface and existing structures, if any, on the applicable
 Premises to a condition substantially similar to that at the time immediately
 prior to the action taken by Landlord and shall replace or repair damage to
 Tenant’s equipment and personal property on such Property caused by Landlord
 or its contractors. Landlord shall, to the extent practical, undertake the
 actions necessary to complete its Remediation of Contamination in a manner
 that will not unreasonably disrupt the operations of Tenant on the applicable
 Property. In no event, however, shall Landlord have liability to anyone,
 including Tenant, for business disruption, lost profits, or consequential
 damages arising from such actions or access. Landlord or its contractors
 shall provide Tenant as much advance notice as possible of all potentially disruptive
 or intrusive activities to be taken on any of the applicable Properties. Such
 notice may be in the form of a periodic schedule of activities. No advance
 notice shall be required for non-disruptive activities, such as periodic
 monitoring of wells. Landlord and Tenant agree to cooperate on the placement
 and the location of Landlord’s Remediation equipment. Any cost or expense to
 repair or replace monitoring and Remediation equipment resulting from the
 acts or omissions of Tenant or Subtenant or their respective employees,
 agents, licensees, invitees, Subtenants and contractors shall be the
 responsibility of Tenant.

 
	
  

 	
  

 
	
  

 	
           9.1.4
 Maintenance of Records. During the course of Landlord’s Remediation of
 Contamination at any of the Properties on Schedule 2, Schedule 3, and Exhibit
 C, Tenant shall maintain UST inventory and tank line maintenance records for
 the applicable Premises as required to comply with the Environmental Laws.
 Landlord shall have the right to review these records as Landlord deems necessary
 so as to be assured of the integrity of Tenant’s UST system at the applicable
 Properties.

 



                              
9.2 Tenant Obligations. Except for those particular obligations of Landlord set
forth in Sections 7.6, 9.1 and 25.3 herein and set forth in the Environmental
Agreement, Tenant shall, except as provided in Section 25.3, be solely
responsible, at its own cost and expense, for compliance with all Environmental
Laws applicable to the Premises after the Commencement Date of the 1997 Master
Lease. Tenant shall be solely responsible, at its own cost and expense, for any
Remediation required by the applicable Government resulting from Remediation
limits changed after Closure has been completed at any of the Properties on
Schedule 2, Schedule 3 and Exhibit C. The obligations of Tenant set forth in
this Section 9.2 shall survive the expiration or earlier termination of this
Restated Lease.


                    
10. INDEMNIFICATION; LIABILITY OF LANDLORD.


                              
10.1 Mutual Indemnity Obligations. Landlord and Tenant shall each Indemnify the
other against: (a) any wrongful act, wrongful omission or negligence of the
Indemnitor (and, in the case of (i) Tenant, that of any of Tenant’s Subtenants,
and Tenant’s and any of their respective partners, directors, officers,
members, contractors, employees, agents, licensees and invitees; and (ii)
Landlord, that of the Leemilt’s Lessor, the Power Test Lessor, the Gettymart


33








Lessor and
their respective partners, directors, officers, members, contractors,
employees, agents, licensees and invitees); and (b) any breach or Default by
the Indemnitor under this Restated Lease or the Environmental Agreement. In
addition to and without limiting the generality of the foregoing indemnity,
Tenant shall Indemnify Landlord and Realty Parent (and with respect to clause
(y) below, Third Party Lessors, the Leemilt’s Lessor, the Power Test Lessor,
and the Gettymart Lessor) against all the following matters (except to the
extent any claim arises from any wrongful act, wrongful omission or negligence
of Landlord, Realty Parent, any Third Party Lessor, the Leemilt’s Lessor, the
Power Test Lessor, or the Gettymart Lessor) relating to: (t) any Remediation of
New Contamination for which Tenant is obligated pursuant to Section 9.1 and for
breach of Tenant’s obligations to comply with Environmental Laws pursuant to
Section 9.2; (u) the operation or occupancy of any Property; (w) any
Construction Work performed during the Term; (x) the condition of any Property
or any street, curb or sidewalk adjoining such Property, whether or not such
condition existed before the Restatement Effective Date; or of any vaults,
tunnels, passageways or space under, adjoining or appurtenant to the Premises
whether or not such condition existed before the Restatement Effective Date;
(y) any accident, injury or damage whatsoever caused to any person or their
property occurring during the Term, in or on the Premises or upon or under the
sidewalks adjoining such Property; and (z) any wrongful termination of a
Sublease. Notwithstanding the foregoing, Tenant shall have no obligation to
Indemnify Realty Parent if (a) a conflict of interest exists such that the use
of a single counsel to represent both Realty Parent and Landlord is not
advisable, (b) the claims and defenses available to Realty Parent and Landlord
with respect to any such claim are not substantially identical, and (c) the
inclusion of Realty Parent as an Indemnitee would cause Tenant to incur more
than a de minimis amount of additional cost or expense in discharging its
indemnification obligations pursuant to this Article. In addition, Landlord
shall Indemnify Tenant and Marketing Parent for (i) any UST Upgrade Landlord is
obligated to perform pursuant to Section 7.6, (ii) any Remediation of
Contamination for which Landlord is obligated under Section 9.1, and (iii) any
matter whatsoever relating to the Abandoned Properties, including, without
limitation, compliance with Environmental Laws. Notwithstanding the foregoing,
Landlord shall have no obligation to Indemnify Marketing Parent if (a) a
conflict of interest exists such that the use of a single counsel to represent
both Marketing Parent and Tenant is not advisable, (b) the claims and defenses
available to Marketing Parent and Tenant with respect to any such claim are not
substantially identical, or (c) the inclusion of Marketing Parent as an
Indemnitee would cause Landlord to incur more than a de minimis amount of additional
cost or expense in discharging its indemnification obligations pursuant to this
Article. Notwithstanding anything to the contrary in this Restated Lease,
neither party shall be required to Indemnify the other party from or against
such other party’s intentional acts or negligence.


                              10.2
Liability of Landlord. Except with respect to the obligations of Landlord
pursuant to the Environmental Agreement and Sections 7.6 and 9.1 hereof, Tenant
shall be deemed to be in exclusive control and possession of the Premises
during the Term as provided in this Restated Lease. Landlord shall not be
liable for any injury or damage to any Property or to any Person occurring on
or about any Property nor for any injury or damage to any property of Tenant,
or of any other person, during the Term, unless caused by Landlord’s, the
Leemilt’s Lessor’s, the Power Test Lessor’s, or the Gettymart Lessor’s wrongful
acts and/or omissions or acts of negligence or a breach of Landlord’s
obligations under this Restated Lease either by


34






Landlord, the
Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or any of their
respective agents, employees, contractors, licensees or invitees. The
provisions of this Restated Lease permitting Landlord to enter and inspect any
Property are intended to allow Landlord to be informed as to whether Tenant is
complying with the agreements, terms, covenants and conditions of this Restated
Lease, and to the extent permitted by this Restated Lease, to perform such acts
required by Landlord under this Restated Lease and of Tenant if Tenant shall
fail to perform. Such provisions shall not be construed to impose upon Landlord
any obligation, liability or duty to third parties, but nothing in this
Restated Lease shall be construed to exculpate, relieve or Indemnify Landlord
from or against any obligation, liability or duty of Landlord to third parties
existing at or before the applicable Commencement Date or its obligations
arising under Sections 7.6 or 9.1 hereof or the Environmental Agreement.


                              10.3
Indemnification Procedures. Wherever this Restated Lease requires an Indemnitor
to Indemnify an Indemnitee, the following procedures and requirements shall
apply:


	
 

	
 


	
 

	
          10.3.1
 Prompt Notice. The Indemnitee shall give the Indemnitor prompt Notice of any
 claim. To the extent, and only to the extent, that both (a) the Indemnitee
 fails to give prompt Notice and (b) the Indemnitor is thereby prejudiced, the
 Indemnitor shall, except as otherwise required under a Third Party Lease, be
 relieved of its indemnity obligations under this Restated Lease.


	
 

	
 


	
 

	
          10.3.2
 Selection of Counsel. The Indemnitor shall be required to select counsel
 reasonably acceptable to the Indemnitee. Counsel to the Indemnitor’s
 insurance carrier shall be deemed satisfactory. Indemnitee may have its own
 counsel, at Indemnitee’s expense, consult with Indemnitor’s counsel.


	
 

	
 


	
 

	
          10.3.3
 Settlement. The Indemnitor may, with the consent of the Indemnitee, not to be
 unreasonably withheld, settle the claim, except that no consent by the
 Indemnitee shall be required as to any settlement by which (x) the Indemnitor
 procures (by payment, settlement, or otherwise) a release of the Indemnitee
 pursuant to which the Indemnitee is not required to make any payment
 whatsoever to the claimant, (y) neither the Indemnitee nor the Indemnitor
 acting on behalf of the Indemnitee makes any admission of liability, and (z)
 the continued effectiveness of this Restated Lease is not adversely affected
 in any material respect.





                              10.4
 Insurance Proceeds. The Indemnitor’s obligations shall be reduced by net
 insurance proceeds actually collected by the Indemnitee on account of the
 loss.


                              10.5
 Survival. All indemnities set forth in this Restated Lease shall survive the
 expiration or earlier termination of this Restated Lease but each such
 indemnity shall in no event survive the earlier to occur of the following:
 (a) the seventh (7th) anniversary of the Termination Date, and (b) the date
 when the time period set forth in the statute of limitations applicable to
 the subject matter of such indemnity has run.


35






                    11.
RIGHT OF CONTEST.


                              11.1
Tenant’s Right. Notwithstanding anything to the contrary in this Restated
Lease, and subject to the terms of Third Party Leases, Tenant shall have the
right to contest, at its sole expense, by appropriate legal proceedings
diligently conducted in good faith, the amount or validity of any Imposition or
Prohibited Lien; the valuation, assessment or reassessment (whether proposed or
final) of any Property for purposes of Real Estate Taxes; the validity of any
Law or Environmental Law or the application of any Law or Environmental Law to
any Property; or the validity or merit of any claim against which Tenant is
required to Indemnify Landlord under this Restated Lease (any of the foregoing,
a “Contest”). Tenant may defer payment of the contested Imposition or
compliance with the contested Law or performance of any other contested
obligation pending the outcome of the Contest, provided that such deferral does
not subject (a) the applicable Property or any portion thereof to any risk of
imminent forfeiture or foreclosure of any Fee Mortgage, or (b) Landlord to any
risk of criminal liability.


                              11.2
Landlord’s Obligations and Protections. Landlord shall not be required to join
in any Contest unless a Law or Environmental Law shall require that such
Contest be brought in the name of Landlord or any owner of the Fee Estate. In
such case, Landlord shall cooperate with Tenant, as Tenant shall reasonably
request, so as to (a) permit such Contest to be brought in Landlord’s or the
Power Party Lessor’s name, as applicable, or (b) in the case of a Property
owned by a Third Party Lessor, request that such Contest be brought in such
Third Party Lessor’s name. Tenant shall pay all reasonable costs and expenses
(including Legal Costs) incident to a Contest. Tenant shall Indemnify Landlord,
the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor and the Third
Party Lessors against any Contest brought by Tenant, whether or not such
Contest is brought in Tenant’s name.


                              11.3
Miscellaneous. Tenant shall be entitled to any refund of any Imposition (and
penalties and interest paid by Tenant) based upon Tenant’s prior overpayment of
such Imposition, whether such refund is made during or after the Term. Upon
termination of Tenant’s Contest of an Imposition, Tenant shall pay the amount
of such Imposition (if any) as has been finally determined in such Contest to
be due, together with any costs, interest, penalties or other liabilities in
connection with such Imposition. Upon final determination of Tenant’s Contest of
a Law or Environmental Law, as applicable, Tenant shall comply with such final
determination. Landlord shall not enter any objection to any Contest. Tenant’s
right to contest any Imposition or the valuation, assessment or reassessment of
any Property for tax purposes shall not be to the exclusion of Landlord, and
Landlord shall have the right to contest the foregoing upon Notice to Tenant.


                              11.4
Cooperation. Landlord and Tenant shall, upon request of the other, reasonably
cooperate with the other party and otherwise provide such data as are
maintained by the party to whom the request is made with respect to any
Property as may be necessary to prepare any required returns and reports or as
may be necessary in connection with the pursuit of any Contest permitted
hereunder. Landlord shall cause the Power Test Lessor, the Leemilt’s Lessor,
and the Gettymart Lessor to and shall request that any Third Party Lessors,
upon Tenant’s request, reasonably cooperate with Tenant and otherwise provide
the data referred to in the preceding sentence with respect to any Property
subject to a Power Test Lease, the Leemilt’s


36






Lease, the
Gettymart Lease or a Third Party Lease, as applicable. Landlord, to the extent
it possesses the same, and Tenant, to the extent it possesses the same, will
provide the other party, upon request, with cost and depreciation records
necessary for filing returns for any property classified as personal property
or necessary in connection with the pursuit of any Contest permitted hereunder.
Landlord will cause the Power Test Lessor, the Leemilt’s Lessor, and the
Gettymart Lessor, to the extent such parties possesses the same, and will
request that the applicable Third Party Lessor, to the extent such Third Party
Lessor possesses the same, provide Tenant, upon request, with the records
referred to in the preceding sentence with respect to any Property subject to a
Power Test Lease, the Leemilt’s Lease, the Gettymart Lease or Third Party
Lease, as applicable. Landlord shall give and shall cause the Power Test
Lessor, the Leemilt’s Lessor and the Gettymart Lessor to give prompt Notice to
Tenant of all Real Estate Taxes payable by Tenant hereunder for which Landlord,
the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor, as
applicable, receives an invoice or other statement. Landlord shall request that
each Third Party Lessor give prompt Notice to Tenant of all Real Estate Taxes
payable by Tenant hereunder for which such Third Party Lessor receives an
invoice or other statement. All information made available under this Section
11.4 shall be treated as “confidential” by the recipient and not be disclosed
to any third party except to the extent absolutely necessary to implement such
permitted Contest.


                    12.
INSURANCE.


                              12.1
Tenant to Insure. Tenant shall, at Tenant’s sole cost and expense, during the
Term, maintain the following insurance (or its then reasonably available
equivalent) or such greater coverage as may be required by a Third Party Lease:


	
 

	
 


	
 

	
          12.1.1
Building. Building insurance providing coverage for the Premises and all
equipment, fixtures, and machinery at or in the Premises, against loss, damage,
and destruction by fire and other hazards encompassed under broad form coverage
as may be customary for like properties in the County (but Tenant shall in no
event be required to maintain earthquake or war risk insurance) from time to
time during the Term, in an amount not less than 80% of the replacement value
of the insurable Improvements and equipment (excluding excavations and
foundations) located at the Premises, but in any event sufficient to avoid
co-insurance. To the extent customary for like properties at the time, such
insurance shall include coverage for explosion of steam and pressure boilers
and similar apparatus located at the Premises; an “increased cost of
construction” endorsement; and an endorsement covering demolition and cost of
debris removal.


	
 

	
 


	
 

	
          12.1.2
Liability. General public liability insurance against claims for personal
injury, death or property damage occurring upon, in or about the Premises and
adjoining streets and passageways. The coverage under all such liability
insurance shall be at least $50 million in the aggregate for any Lease Year, $5
million in respect of injury or death to a single person, and at least $10
million, in respect of any one accident, and not less than full replacement
value for property damage. Landlord shall be entitled from time to time, upon
180 days’ Notice to Tenant, to increase the dollar limits set forth in this
Section, subject to






37






	
 

	
 


	
 

	
the
 following limitations, which shall be cumulative: (a) such increased limits
 shall never exceed the limits initially set forth (as adjusted by the CPI
 Adjustment Factor), rounded to the nearest $1,000,000; (b) such limits shall
 never exceed the limits customarily maintained for similar commercial
 properties located in the County; and (c) Landlord shall not be entitled to increase
 such limits more frequently than once every three years.


	
 

	
 


	
 

	
          12.1.3
 Workers’ Compensation. Workers’ compensation insurance covering all persons
 employed in connection with any Construction Work or operation of the
 Premises, and with respect to whom any claim could be asserted against
 Landlord, Realty Parent, a Third Party Lessor, the Leemilt’s Lessor, the
 Power Test Lessor, the Gettymart Lessor, the Fee Estate or Landlord’s
 leasehold interest in any Fee Estate owned by a Third Party Lessor, the
 Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor.


	
 

	
 


	
 

	
          12.1.4
 Other. All other insurance as Tenant determines appropriate in the exercise
 of Tenant’s reasonable business judgment.





                              12.2
Nature of Insurance Program. Tenant shall provide any insurance required by
this Restated Lease pursuant to a “blanket” or “umbrella” insurance policy
covering all Properties demised hereunder, (i) which policy or a certificate of
such policy shall specify the amount(s) of the total insurance allocated to
each Property and to the Premises, which amounts shall not be subject to
reduction on account of claims made with respect to other Properties or other
properties that may be covered by such “blanket” or “umbrella” insurance
policy, and (ii) which policy otherwise complies with this Restated Lease.


	
 

	
 


	
 

	
          12.3
 Policy Requirements and Endorsements. All insurance policies required by this
 Restated Lease shall contain (by endorsement or otherwise) the following
 provisions:


	
 

	
 


	
 

	
          12.3.1
 Additional Insureds. Liability insurance policies shall name as additional
 insureds Landlord, its Affiliates and/or Subsidiaries, Realty Parent, Third
 Party Lessors, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart
 Lessor 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 Restated Lease, to the extent ordinarily insured.





38






	
 

	
 


	
 

	
          12.3.5
 Insurance Carrier Standards. Each insurance carrier shall be authorized to do
 business in the State and shall have a “Best’s” rating of at least B+-VI.


	
 

	
 


	
 

	
          12.3.6
 Notice to Landlord. The insurance carrier shall undertake to give Landlord
 sixty (60) days’ prior Notice of cancellation or amendment. Failure to give
 such Notice shall not adversely affect the rights or increase the obligations
 of the insurance carrier or be deemed a Default by Tenant hereunder.





                              12.4
Deliveries to Landlord. Upon Notice to such effect by Landlord, Tenant shall
deliver to Landlord certificates and/or certified copies of the insurance
policies required by this Restated Lease, endorsed “Paid” or accompanied by
other evidence that the premiums for such policies have been paid, at least
thirty (30) days before expiration of any then current policy.


                              12.5
Deductibles. The deductible amounts of any insurance policy that Tenant is
required to maintain under this Article shall not exceed the deductible amounts
maintained by Tenant immediately prior to the date hereof. Notwithstanding the
foregoing, in the event that Landlord requires Tenant to increase the amount of
coverage provided by Tenant’s liability insurance policies pursuant to the
provisions of Section 12.1.2 or if Tenant increases the amount of coverage
provided by Tenant’s building insurance policies, Tenant shall be entitled to a
ratable increase in the maximum deductible amounts permitted hereunder with
respect to such liability insurance policies or building insurance policies, as
applicable. The terms of any policy of general liability insurance maintained
by Tenant pursuant to Section 12.1.2 shall permit third parties who suffer
losses covered by such policy to recover from the insurance carrier insurance
proceeds in an amount equal to such losses, up to the maximum amount of the
insurance coverage provided by such policy, notwithstanding (a) the existence
of any deductible amount with respect to such policy and (b) any claim that
such carrier may have against Tenant with respect to such carrier’s payment to
third parties of such deductible amount.


                              12.6
Tenant’s Inability to Obtain Insurance. So long as (a) any insurance required
by this Restated Lease should, after reasonably diligent effort by Tenant, be
unobtainable at customary rates through no act or omission by Tenant and (b)
Tenant shall obtain the maximum insurance reasonably obtainable at customary
rates and give Notice to Landlord of the extent of Tenant’s inability to obtain
any insurance required to be maintained under this Restated Lease, then unless
Tenant’s inability to procure and maintain such insurance results from some
activity or conduct within Tenant’s reasonable control, Tenant’s obligation to
procure and maintain such insurance as is unobtainable shall be excused, but
only so long as conditions (a) and (b) are satisfied. Notwithstanding the
foregoing, if Tenant, after reasonably diligent effort, is unable to obtain any
insurance required by this Restated Lease at customary rates, Landlord shall
have the right to obtain such insurance at customary rates and shall charge the
cost of such insurance to Tenant as Additional Rent.


                              12.7
Waiver of Certain Claims. To the extent that Landlord or Tenant purchases any
hazard insurance relating to any Property, the party purchasing such insurance
shall attempt to cause the insurance carrier to agree to a Waiver of
Subrogation. If any insurance policy cannot be obtained with a Waiver of
Subrogation, or a Waiver of Subrogation is obtainable


39






only by the
payment of an additional premium, then the party undertaking to obtain the
insurance shall give Notice of such fact to the other party. The other party
shall then have ten (10) Business Days after receipt of such Notice either to
place the insurance with a company that is reasonably satisfactory to the other
party and that will issue the insurance with a Waiver of Subrogation at no
additional cost, or to agree to pay the additional premium if such a policy can
be obtained only at additional cost. To the extent that the parties actually
obtain insurance with a Waiver of Subrogation, the parties release each other,
and their respective authorized representatives, from any claims for damage to
any person or any Property that are caused by or result from risks insured
against under such insurance policies, but only to the extent of the insurance
proceeds available to such party.


                              12.8
No Representation of Adequate Coverage. Except as otherwise specifically
provided for herein, neither party makes any representation, or shall be deemed
to have made any representation, that the limits, scope, or form of insurance
coverage specified in this Article are adequate or sufficient.


                    13.
DAMAGE OR DESTRUCTION.


                              13.1
Notice; No Rent Abatement. Tenant shall promptly give Landlord Notice of any
Casualty. Except as otherwise set forth herein, there shall be no abatement or
reduction of Fixed Rent or Additional Rent on account of a Casualty. Except as
otherwise provided in Section 13.3 and 13.4, Tenant shall with reasonable
promptness restore the damaged Improvements as nearly as may be practicable to
their condition, quality, and class immediately prior to such Casualty, with
such changes or alterations (including demolition) as Tenant shall elect to
make in conformity with this Restated Lease, including, without limitation, the
provisions of Article 5 and Section 7.2, all at Tenant’s sole cost and expense.


                              13.2
Adjustment of Claims; Use of Insurance Proceeds. Except to the extent otherwise
provided in a Permitted Leasehold Mortgage or a Third Party Lease, Tenant shall
be solely responsible for the adjustment of any insurance claim. Except as
otherwise provided in Section 13.3 and 13.4 or a Third Party Lease, all
proceeds of building or hazard insurance shall be paid to the Permitted
Leasehold Mortgagee to be used for restoration of the Premises if the Permitted
Leasehold Mortgage encumbering the Leasehold Estate at the time of such
Casualty, if any, so requires. If such Permitted Leasehold Mortgage so allows
or if no Permitted Leasehold Mortgage encumbers the Leasehold Estate at the
time of any such Casualty, then, except as otherwise provided in Section 13.3
and 13.4, such proceeds shall be paid to Tenant to be held and applied in
compliance with its restoration obligations under this Restated Lease. After
(a) completion of such restoration and (b) payment of all Fixed Rent, Real
Estate Taxes and insurance premiums required pursuant to Article 12 allocable
to such Property, as reasonably determined by Tenant in accordance with the
principles set forth in the Fixed Rent Adjustment Procedures, due and payable
during the period beginning on the date of such Casualty and ending on the date
of completion of such restoration (except to the extent Tenant shall be
entitled to receive business interruption insurance or rental insurance with
respect to such Casualty), any funds remaining shall, subject to the rights of
Third Party Lessors, belong to Landlord.


40






                              13.3
Substantial Casualty; Insufficient Proceeds. Anything to the contrary contained
herein notwithstanding, if a Substantial Casualty occurs and the insurance
proceeds received by Tenant with respect to such Substantial Casualty are not
sufficient to pay for the restoration required by Section 13.1 notwithstanding
Tenant’s compliance with its obligations under Section 12.1.1 hereof with
respect to the maintenance of building insurance, then Tenant may, subject to
the provisions of the applicable Third Party Lease, if any, (a) elect to
restore the Property for a lawful use other than the use of the Property
immediately prior to such Substantial Casualty, subject to the requirements
contained in Section 7.2, or (b) elect not to restore such Property, in either
case by delivering Notice of such election to Landlord within thirty (30) days
of the determination of the amount of insurance proceeds to be received from
the insurance carrier with respect to such Substantial Casualty. If Tenant
makes the election referred to in clause (a) of this Section, then the proceeds
received with respect to such Substantial Casualty shall be held, applied and
distributed in accordance with the provisions of Section 13.2. Tenant shall
perform the Construction Work with respect to such restoration in conformity
with the applicable requirements of this Restated Lease, including, without
limitation, the provisions of Section 7.2, all at Tenant’s sole cost and
expense. If Tenant makes the election referred to in clause (b) of this
Section, then the insurance proceeds received with respect to such Substantial
Casualty shall, subject to the rights of Third Party Lessors, belong entirely
to Landlord. If, at the time of any such election referred to in clause (b),
Tenant then holds any portion of the insurance proceeds received on account of
such Substantial Casualty, such proceeds shall, subject to the rights of Third
Party Lessors, promptly be paid to Landlord. In no event shall any election
pursuant to this Section 13.3 (i) to change the use of such Property or (ii) to
refrain from repairing, restoring or reconstructing such Property be construed,
in either case, to grant Tenant any right to delete such Property from this
Restated Lease or to any abatement or reduction in Rent or in any way affect
Tenant’s obligation to comply with all applicable Law and Environmental Law
with respect to such Property.


                              13.4
End of Term. Notwithstanding anything to the contrary contained herein, if a
Substantial Casualty occurs within the last thirty (30) months of the end of
the existing Term, Tenant may, upon Notice to Landlord given within thirty (30)
days of the determination of the amount of insurance proceeds to be received
from the insurance carrier with respect to such Substantial Casualty and
subject to the provisions of the applicable Third Party Lease, if any, elect to
not restore such Property, regardless of whether the insurance proceeds with
respect to such Substantial Casualty are sufficient to complete the restoration
of the Property in accordance with Section 13.1 hereof. If Tenant so elects not
to restore, then the insurance proceeds with respect to such Substantial
Casualty shall, subject to the rights of Third Party Lessors, belong entirely
to Landlord. If, at the time of such election, Tenant then holds any portion of
such insurance proceeds, such proceeds shall, subject to the rights of Third
Party Lessors, promptly be paid to Landlord. If Tenant makes such election not
to restore, then this Restated Lease shall terminate as to such Property as of
the date on which Landlord or the Third Party Lessor, as the case may be,
receives the full amount of the insurance proceeds to be received from all
insurance carriers with respect to such Substantial Casualty, and such Property
shall be deemed deleted from this Restated Lease on such date. Thereupon, Fixed
Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures,
and the amounts held pursuant to this Restated Lease on account of advanced
Real Estate Tax payments pursuant to Article 4 shall be adjusted


41






accordingly.
In no event shall any election pursuant to this Section be deemed to grant Tenant
any right to delete such Property from this Restated Lease or to any abatement
or reduction in Rent or in any way affect Tenant’s obligation to comply with
all applicable Law and Environmental Law with respect to such Property until
the time at which such Property is deleted from this Restated Lease pursuant to
the foregoing provisions.


                    
14. CONDEMNATION.


	
 

	
 


	
 

	
14.1
 Substantial Condemnation.


	
 

	
 


	
 

	
          14.1.1
 Deletion; Awards. If a Substantial Condemnation of any Property shall occur,
 then this Restated Lease shall terminate as to such Property as of the
 effective date of such Substantial Condemnation, such Property shall be
 deemed to be deleted from this Restated Lease, the Fixed Rent shall be
 adjusted in accordance with the Fixed Rent Adjustment Procedures and the
 amounts held pursuant to this Restated Lease on account of advanced Real
 Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. If
 the applicable Government grants separate Awards to Landlord and Tenant (a
 “Separate Award Jurisdiction”), then, notwithstanding anything to the
 contrary contained in Section 14.5 and subject to the rights of any Third
 Party Lessor, each of Landlord and Tenant shall in good faith pursue such
 separate Award and shall be entitled to retain such Award as it may receive
 from the applicable Government with respect to its interest in the applicable
 Property. Notwithstanding the foregoing, if the Awards received in a Separate
 Award Jurisdiction with respect to such Substantial Condemnation are
 inequitable given Landlord’s and Tenant’s respective interests in such
 Property or if the Property condemned is not located in a Separate Award
 Jurisdiction, then, the following provision shall apply. Subject to the
 rights of any Third Party Lessor, the aggregate of such Award(s) shall be
 paid as follows, after Landlord shall have been reimbursed for Landlord’s
 Legal Costs incurred in the determination and collection of the Award(s):
 Tenant shall receive an amount equal to the product of (a) Tenant’s
 Condemnation Share, times (b) the Award(s), and Landlord shall receive the
 remainder of the Award(s).


	
 

	
 


	
 

	
          14.1.2
 Tenant’s Separate Award. Anything to the contrary contained herein
 notwithstanding, if the applicable Government grants to Tenant a separate
 Award on account of Trade Equipment, moving costs, or loss of business, then
 Tenant shall be entitled to apply for and retain such separate Award,
 provided that such separate Award does not reduce the Award(s) otherwise
 payable to Landlord and/or Tenant by such Government with respect to such
 Condemnation.


	
 

	
 


	
 

	
          14.1.3
 Disputes. The amount of Landlord’s Award and Tenant’s Award with respect to
 any Substantial Condemnation shall be determined in accordance with the
 provisions set forth above in the definitions of such terms. In the event
 that the parties hereto are unable to agree on such amounts or, with respect
 to a Separate Award Jurisdiction, a dispute arises as to whether the Awards
 received by Landlord and Tenant are inequitable given their respective





42






	
 

	
 


	
 

	
interests in
 such Property, then any such dispute shall be resolved by an arbitration
 conducted in accordance with the applicable provisions set forth in Schedule
 4.


	
 

	
 


	
 

	
14.2
 Insubstantial Condemnation.


	
 

	
 


	
 

	
          14.2.1
 Awards. If an Insubstantial Condemnation at any Property shall occur, then
 subject to the terms of any Third Party Lease to the contrary, the Award
 received with respect to such Insubstantial Condemnation shall, except as
 otherwise provided in this Section 14.2, be paid to Tenant to be applied
 first to the repair, restoration or reconstruction of any remaining part of
 the Improvements not so taken, but only if and to the extent that such
 repair, restoration or reconstruction was necessitated by the occurrence of
 such Insubstantial Condemnation (as opposed to a condition that existed prior
 to the occurrence of such Insubstantial Condemnation). Except as otherwise
 provided in Section 14.2.2 and 14.2.3, Tenant Improvements (other than
 outbuildings, recreational facilities, service buildings, maintenance sheds
 or the like which are not material to the use or operation of such Property,
 which Tenant may elect not to re-erect) as nearly as may be practicable to
 their condition, quality and class immediately prior to such Insubstantial
 Condemnation, with such changes or alterations (including demolition) as
 Tenant shall elect to make in conformity with this Restated Lease, including,
 without limitation, the provisions of Section 7.2, all at Tenant’s sole cost
 and expense. The balance of any such Award remaining after such repair,
 restoration or reconstruction shall be distributed to and shall, subject to
 the rights of Third Party Lessors, belong to Landlord.


	
 

	
 


	
 

	
          14.2.2
 Insufficient Proceeds. Notwithstanding the foregoing, if such Award is not
 sufficient to pay for said repair, restoration or reconstruction, Tenant
 shall be responsible for completing same at Tenant’s sole cost and expense.
 Tenant shall perform such repair, restoration or reconstruction in accordance
 with applicable requirements of this Restated Lease, including, without
 limitation, Section 13.1 hereof. Notwithstanding the foregoing, if such Award
 is not sufficient to pay for said repair, restoration or reconstruction, then
 Tenant, subject to the provisions of the applicable Third Party Lease, if
 any, may (a) elect to repair, restore or reconstruct the Property for a
 lawful use other than the use of such Property immediately prior to such
 Insubstantial Condemnation, subject to the requirements contained in Section
 7.2, or (b) elect not to repair, restore or reconstruct such Property, in
 either case by delivering Notice of such election to Landlord within ten (10)
 days of such Condemnation. If Tenant makes the election referred to in clause
 (a) of this Section, then the Award received with respect to such
 Insubstantial Condemnation shall be held, applied and distributed in
 accordance with the provisions of Section 14.2.1. Tenant shall perform the
 Construction Work with respect to such repair, restoration or reconstruction
 in conformity with the applicable requirements of this Restated Lease
 including, without limitation, the provisions of Section 7.2, but excluding
 the provisions of Section 14.2.1 which require a rebuilding of the
 Improvements for the use





43






	
 

	
 


	
 

	
immediately
 prior to the Condemnation, all at Tenant’s sole cost and expense. If Tenant
 makes the election referred to in clause (b) of this Section, then the Award
 received with respect to such Insubstantial Condemnation shall, subject to
 the rights of Third Party Lessors, belong entirely to Landlord. If, at the
 time of any such election referred to in clause (b) of this Section, Tenant
 then holds any portion of the Award received on account of such Insubstantial
 Condemnation, such Award shall, subject to the rights of Third Party Lessors,
 promptly be paid to Landlord. In no event shall any election pursuant to this
 Section (i) to change the use of such Property or (ii) to refrain from
 repairing, restoring or reconstructing such Property be deemed to grant
 Tenant any right to delete such Property from this Restated Lease or in any
 way affect Tenant’s obligation to comply with all applicable Law and
 Environmental Law with respect to such Property, or any right to any
 abatement of Rent except as provided in Section 14.2.4.


	
 

	
 


	
 

	
          14.2.3
 End of Term. Notwithstanding anything to the contrary contained herein, if a
 Insubstantial Condemnation occurs on a Property within the last thirty (30)
 months of the end of the existing Term which requires restoration of the
 Improvements on such Property (by more than a de minimis amount), Tenant may,
 upon Notice to Landlord within ten (10) days after the effective date of such
 Condemnation and subject to the provisions of the applicable Third Party Lease,
 if any, elect to not restore such Property, regardless of whether the Award
 with respect to such Insubstantial Condemnation is sufficient to complete
 said repair, restoration or reconstruction. If Tenant makes the election
 referred to in this Section, then the Award with respect to such
 Insubstantial Condemnation shall, subject to the rights of Third Party
 Lessors, belong entirely to Landlord. If, at the time of such election,
 Tenant then holds any portion of the Award received on account of such Insubstantial
 Condemnation, such Award shall, subject to the rights of Third Party Lessors,
 promptly be paid to Landlord. If Tenant makes such election not to restore,
 then this Restated Lease shall terminate as to such Property upon such
 election, and such Property shall be deemed deleted from this Restated Lease
 on such date. Thereupon, Fixed Rent shall be adjusted in accordance with the
 Fixed Rent Adjustment Procedures, and the amounts held pursuant to this
 Restated Lease on account of advanced Real Estate Tax payments pursuant to
 Article 4 shall be adjusted accordingly. In no event shall any election
 pursuant to this Section be deemed to in any way affect Tenant’s obligation
 to comply with all applicable Law and Environmental Law with respect to such
 Property before the time at which such Property is deleted from this Restated
 Lease.


	
 

	
 


	
 

	
          14.2.4
 Fixed Rent Adjustment. From and after the effective date of the Insubstantial
 Condemnation, Fixed Rent shall, except as otherwise provided in Section
 14.2.3, be adjusted as follows. New Fixed Rent shall equal Fixed Rent, as it
 would have been determined without regard to the Insubstantial Condemnation,
 multiplied by a fraction whose numerator is the total value of applicable
 Property after the Insubstantial Condemnation and whose denominator is the
 total value of the applicable Property immediately before the effective date
 of such Insubstantial





44






	
 

	
 


	
 

	
Condemnation
 and without considering such Insubstantial Condemnation or the expectation
 thereof.





                              14.3
Temporary Condemnation. If a Temporary Condemnation shall occur with respect to
any Property, Rent shall not abate and, subject to the terms of Third Party
Lease to the contrary, Tenant will be entitled to receive any award or payment.


                              14.4
Other Governmental Action. In the event of any action by any Government not
resulting in a Condemnation (or otherwise not resulting in a deletion of a
Property from this Restated Lease pursuant to the express provisions of this
Article, including Sections 14.6 and 14.7 hereof) but creating a right to
compensation, such as the changing of the grade of any street upon which a
Property abuts, then this Restated Lease shall continue in full force and
effect without reduction or abatement of Rent and subject to the terms of any
Third Party Lease to the contrary, Tenant shall be entitled to receive the
award or payment made in connection with such action.


                              14.5
Prompt Notice; Settlement. If either party becomes aware of any Condemnation or
threatened or contemplated Condemnation or any similar event creating a right
to compensation, then such party shall promptly give Notice thereof to the
other party. Landlord shall be responsible for the settlement or compromise of
any Award, except that Landlord shall not settle or compromise any Award
without the consent of Tenant and Leasehold Mortgagee, which consent shall not
be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing
and subject to the rights of Leasehold Mortgagee and the applicable Third Party
Lessor, Tenant shall be solely responsible for the settlement or compromise of
any Award relating to a Temporary Condemnation, and Landlord’s consent to any
such settlement or compromise shall not be required. Landlord shall have no
right to participate in proceedings related to a Temporary Condemnation, unless
Tenant may not legally participate in such proceedings, then Landlord shall
participate in such proceedings in accordance with Tenant’s instructions, all
at Tenant’s sole cost and expense and using counsel selected, instructed and
paid by Tenant.


                              14.6
Pelham Manor Rezoning Event. If the Pelham Manor Rezoning Event occurs, then
the Property having a mailing address of 4301 Boston Post Road, Bronx, New York
10466 shall be deleted from this Restated Lease, the Fixed Rent shall be
adjusted in accordance with the Fixed Rent Adjustment Procedures, and the
amounts held pursuant to this Restated Lease on account of advanced Real Estate
Tax payments pursuant to Article 4 shall be adjusted accordingly. Nothing
contained herein shall in any way limit Landlord’s or Tenant’s right to contest
the validity or the application of any Law or proposed Law or any Environmental
Law or proposed Environmental Law with respect to such Property or any other
Property, provided that no such contest shall subject (a) such Property or any
portion thereof to any risk of imminent forfeiture or foreclosure of any Fee
Mortgage then encumbering such Property or any portion thereof or to any risk
of termination of any Third Party Lease or (b) Tenant or Landlord to any risk
of criminal liability.


                              14.7
Use Restriction Event. If, at any time or from time to time, a Use Restriction
Event occurs with respect to a Property, then Tenant shall have the option to
terminate this Restated Lease with respect to such Property by delivering to
Landlord Notice of Tenant’s


45






	
 

	
 


	
 

	
election to
 so terminate such Property from this Restated Lease. Upon the occurrence of a
 Use Restriction Event, such Property shall be deemed deleted from this
 Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in
 accordance with the Fixed Rent Adjustment Procedures and the amounts held
 pursuant to this Restated Lease on account of advanced Real Estate Tax
 payments pursuant to Article 4 shall be adjusted accordingly, provided that
 Tenant shall have given Landlord at least one (1) year’s prior notice of its
 election to terminate this Restated Lease with respect to such Property.





                    15.
TRANSFERS BY LANDLORD.


                              15.1
Landlord’s Right to Convey. Subject to the provisions of Section 15.2 and
Section 15.3, Landlord shall be entitled to convey the Fee Estate of any
Property and/or Landlord’s leasehold interest in any Fee Estate owned by a
Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the
Gettymart Lessor from time to time, provided that the new holder thereof as a
result of such conveyance simultaneously enters into a new lease with Tenant
with respect to such Property on the same terms and conditions as are set forth
in this Restated Lease, except as otherwise set forth on Schedule 13 (any such
new lease being hereinafter referred to as a “Transferee Lease”).

Notwithstanding the foregoing, any conveyance of the Fee Estate of any Property
and/or Landlord’s leasehold interest in any Fee Estate owned by a Power Test
Lessor, the Leemilt’s Lessor, the Gettymart Lessor or a Third Party Lessor to
an Affiliate or Subsidiary of Tenant shall not be subject to the provisions of
Section 15.2 or 15.3; provided, however, that notwithstanding anything to the
contrary contained in Schedule 13, the Transferee Lease between Tenant and such
Affiliate or Subsidiary shall, as to subsequent conveyance, bind such Affiliate
or Subsidiary to Tenant’s Right of First Offer (as defined hereinafter) and
Tenant’s Right of First Refusal (as defined hereinafter). Upon any such
conveyance of the Fee Estate of any Property or Landlord’s leasehold interest
in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the
Power Test Lessor, or the Gettymart Lessor in accordance with the preceding
provisions, the applicable Property shall be deleted from this Restated Lease,
the Fixed Rent shall be adjusted to reflect such deletion in accordance with
Fixed Rent Adjustment Procedures, and the amounts held pursuant to this
Restated Lease on account of advanced Real Estate Tax payments pursuant to Article
4 shall be adjusted accordingly. Without limiting Tenant’s remedies on account
of any such transaction, if Landlord makes any such conveyance in violation of
this Section, then: (x) such transaction shall be null, void, and of no force
or effect; (y) notwithstanding the foregoing, Tenant shall be entitled to
equitable relief requiring the cancellation and rescission of such transaction;
and (z) Tenant shall be entitled to have such violating Property deleted from
this Restated Lease, to have the Fixed Rent adjusted to reflect such deletion
in accordance with the Fixed Rent Adjustment Procedures, and to have the
amounts held pursuant to this Restated Lease on account of advanced Real Estate
Tax payments pursuant to Article 4 adjusted accordingly. Any conveyance of the
Fee Estate shall not terminate or impair any of the grantor’s obligations as
Landlord under this Restated Lease.


                              15.2
Tenant’s Right of First Offer. Anything contained in this Restated Lease to the
contrary notwithstanding, if at any time during the Term, Landlord, the
Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor shall desire
to convey its Fee Estate in any Property, then, provided that Landlord has not
terminated this Restated Lease on account of an uncured Material Monetary Event
of Default, Landlord, the Leemilt’s Lessor, the Power Test Lessor, or


46






the Gettymart
Lessor, as the case may be, shall offer (the “Landlord’s Offer”) to convey such
Fee Estate to Tenant (or a purchaser to be procured by Tenant) before offering
it to any other individual or entity, all in accordance with the following
provisions (as described herein, the “Right of First Offer”).


	
 

	
 


	
 

	
          15.2.1
 Certain Exempt Transactions. Tenant’s Right of First Offer shall not apply to
 any of the following transactions: (a) the grant of a bona fide Fee Mortgage
 to an Institutional Lender or other unaffiliated lender; (b) any conveyance
 pursuant to such a Fee Mortgage; (c) subject to Section 15.6, any conveyance
 to an entity (i) into which or with which Landlord, the Leemilt’s Lessor, the
 Power Test Lessor, or the Gettymart Lessor, as the case may be, merges, or
 (ii) which acquires Landlord, the Leemilt’s Lessor, the Power Test Lessor or
 the Gettymart Lessor or all or substantially all of the assets of such
 entity, as the case may be, or (d) any subsequent conveyance(s) by anyone
 whose title derives directly or indirectly from any conveyance described in
 clause (b) of this paragraph.


	
 

	
 


	
 

	
          15.2.2
 Landlord’s Offer. Landlord’s Offer shall be in writing and shall set forth
 the material terms, including, without limitation, price, closing date and
 deposit amounts, on which Landlord, the Leemilt’s Lessor, the Power Test
 Lessor, or the Gettymart Lessor, as the case may be, proposes to convey the
 Fee Estate. If Tenant accepts Landlord’s Offer, the conveyance to Tenant
 shall be made on the terms set forth in Landlord’s Offer. Upon conveyance of
 any Property to Tenant pursuant to this Section, as of the date of such
 conveyance, such Property shall be deemed deleted from this Restated Lease,
 the Fixed Rent shall be adjusted to reflect such deletion in accordance with
 the Fixed Rent Adjustment Procedures and the amounts held pursuant to this
 Restated Lease on account of advanced Real Estate Tax payments pursuant to
 Article 4 shall be adjusted accordingly.


	
 

	
 


	
 

	
          15.2.3
 Right of First Refusal Election. If Tenant notifies Landlord that Tenant
 elects to treat the Property that is the subject of Landlord’s Offer as a
 ROFR Property within thirty (30) days after receipt of Landlord’s Offer, then
 Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart
 Lessor, as the case may be, shall be free to sell such Property to another
 individual or entity only in compliance with the provisions of Section 15.3.
 As used herein, the term “ROFR Property” means a Property which Tenant elects
 to make subject to the Right of First Refusal, provided, however, that Tenant
 may make such election with respect to no more than forty (40) Properties
 during the Term.


	
 

	
 


	
 

	
          15.2.4
 Sale to Third Party. If Tenant (a) notifies Landlord that Tenant does not
 desire to purchase the Fee Estate on the terms of Landlord’s Offer, (b) does
 not elect to treat such Property as a ROFR Property pursuant to Section
 15.2.3 or (c) fails to respond to Landlord’s Offer within thirty (30) days
 after receipt, then Landlord, the Leemilt’s Lessor, the Power Test Lessor, or
 the Gettymart Lessor, as the case may be, shall be free to sell such Fee
 Estate to any other individual or entity, except as set forth in the
 following sentence. If,





47






	
 

	
 


	
 

	
however,
 Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart
 Lessor, as the case may be, desires to sell such Fee Estate for a price less
 than 90% of the price set forth in Landlord’s Offer, or on terms that in any
 other way are materially more favorable to the purchaser than those described
 in Landlord’s Offer, then Landlord, the Leemilt’s Lessor, the Power Test
 Lessor, or the Gettymart Lessor, as the case may be, shall again deliver to
 Tenant a Landlord’s Offer and the procedure described above shall again
 apply. Notwithstanding the foregoing, if Landlord, the Leemilt’s Lessor, the
 Power Test Lessor, or the Gettymart Lessor, as the case may be, shall again
 deliver a Landlord’s Offer pursuant to the preceding sentence and Tenant
 fails to respond to such Landlord’s Offer within fifteen (15) days, then
 Tenant shall be deemed to have waived its Right of First Offer with respect
 to such sale. If Tenant does not elect to exercise its Right of First Offer
 with respect to such Fee Estate within the applicable time frame and
 Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart
 Lessor, as the case may be, sells such Fee Estate to another individual or
 entity pursuant to this Section 15.2, then, upon such sale, the applicable
 Property shall be deemed deleted from this Restated Lease, the Fixed Rent
 shall be adjusted to reflect such deletion in accordance with the Fixed Rent
 Adjustment Procedures and the amounts held pursuant to this Restated Lease on
 account of advanced Real Estate Tax payments pursuant to Article 4 shall be
 adjusted accordingly. Simultaneously with such sale, such purchaser shall
 enter into a Transferee Lease with Tenant with respect to such Property.





                              15.3
Tenant’s Right of First Refusal. Anything in this Restated Lease contained to
the contrary notwithstanding, if Landlord or the Power Test Lessor, as the case
may be, at any time during the Term receives one or more bona fide offers from
third parties to convey the Fee Estate of a Property that Tenant has elected to
treat as a ROFR Property pursuant to Section 15.2.3, which offer Landlord, the
Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case
may be, intends to accept, then, provided that Landlord has not terminated this
Restated Lease on account of an uncured Material Monetary Event of Default,
Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor,
as the case may be, agrees to notify Tenant in writing, which Notice shall
contain the name and address of the offeror and the proposed contract of sale
(containing the price, deposit amount and all other material terms and
conditions of such offer) (such Notice being referred to hereinafter as the
“Third Party Offer Notice”). Tenant shall have four (4) Business Days from and
after its receipt of the Third Party Offer Notice to provide Landlord with
Notice of its election to purchase the ROFR Property that is the subject of
such Third Party Offer Notice (such right to purchase any such ROFR Property
being referred to hereinafter as the “Right of First Refusal”).


	
 

	
 


	
 

	
          15.3.1
 Sale to Third Party. If Tenant does not elect to exercise its Right of First
 Refusal with respect to such ROFR Property within such time frame, then
 Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart
 Lessor, as the case may be, shall be entitled to convey such ROFR Property to
 the purchaser set forth in the Third Party Offer Notice on substantially the
 same terms and conditions in all material respects as those set forth in such
 Third Party Offer Notice. Such purchaser shall, simultaneously with the
 conveyance of such ROFR





48






	
 

	
 


	
 

	
Property,
 enter into a Transferee Lease with Tenant with respect to such ROFR Property.
 Upon such conveyance, such Property shall be deemed deleted from this
 Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in
 accordance with the Fixed Rent Adjustment Procedures, and the amounts held
 pursuant to this Restated Lease on account of advanced Real Estate Tax
 payments pursuant to Article 4 shall be adjusted accordingly. If Landlord
 does not sell to such purchaser as provided above, then any future proposed
 sale of such Property shall be subject to the provisions of Section 15.2 and,
 if applicable, Section 15.3.


	
 

	
 


	
 

	
          15.3.2
 Sale to Tenant. If Tenant elects to exercise its Right of First Refusal and
 purchase the ROFR Property that is the subject of the Third Party Offer
 Notice, then such sale to Tenant shall be on the same terms and conditions in
 all material respects as those set forth in the contract of sale provided to
 Tenant in connection with the delivery of the Third Party Offer Notice. The
 closing of any such sale to Tenant shall occur in accordance with the terms
 and conditions of such contract of sale. Upon conveyance of any such ROFR
 Property to Tenant pursuant to this paragraph, such ROFR Property shall be
 deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect
 such deletion in accordance with the Fixed Rent Adjustment Procedures, and
 the amounts held pursuant to this Restated Lease on account of advanced Real
 Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.


	
 

	
 


	
 

	
          15.3.3
 Certain Exempt Transactions. Notwithstanding anything to the contrary
 contained herein, Tenant’s Right of First Refusal shall not apply to any of
 the following transactions: (a) the grant of a bona fide Fee Mortgage to an
 Institutional Lender or other unaffiliated lender; (b) any conveyance
 pursuant to such a Fee Mortgage; (c) subject to Section 15.6, any conveyance
 to an entity (i) into which or with which Landlord, the Leemilt’s Lessor, the
 Power Test Lessor, or the Gettymart Lessor, as the case may be, merges, or
 (ii) which acquires Landlord, the Leemilt’s Lessor, the Power Test Lessor,
 the Gettymart Lessor or all or substantially all of the assets of such
 entity, as the case may be, or (d) any subsequent conveyance(s) by anyone
 whose title derives directly or indirectly from any conveyance described in
 clause (b) of this Section.





                              15.4
Landlord’s Mortgages. This Restated Lease shall be subject and subordinate to
all existing Fee Mortgages and to all subsequent Fee Mortgages and the rights
of holders of such Fee Mortgages, provided, in each case, that a
non-disturbance agreement is obtained whereunder Tenant’s rights under this
Restated Lease will not be disturbed upon any foreclosure or other exercise of
remedies under a Fee Mortgage as long as a Material Monetary Event of Default
is not in existence at the time of such foreclosure or such other exercise or
remedies, and is otherwise substantially identical to the form set forth on
Exhibit K. This Restated Lease and Leasehold Estate hereunder shall be prior
and superior to all existing and subsequent Fee Mortgages where a
non-disturbance agreement has not been obtained, except as otherwise set forth
in a Third Party Lease. Notwithstanding the foregoing, with respect to the
Fleet Mortgage, Landlord shall (a) cause the holder of the Fleet Mortgage to
enter into a non-disturbance agreement substantially identical to the form set
forth on Exhibit K; or (b) cause such


49






Fee Mortgage
to be discharged of record, in either case on or prior to the Restatement
Effective Date. With respect to any Fee Mortgage encumbering Landlord’s
interest in any Property as of the date hereof, which Fee Mortgage is set forth
on Exhibit I, Landlord shall request that the holder of such Fee Mortgage enter
into a non-disturbance agreement in a form customary for a single-site purchase
money mortgage transaction similar to the transaction consummated between the
holder of such Fee Mortgage and Landlord or its predecessor in interest, which
non-disturbance agreement shall be reasonably acceptable to Tenant. In the
event that (a) Landlord is unable to cause the holder of such Fee Mortgage to
enter into such non-disturbance agreement and (b) a default occurs under the
applicable Fee Mortgage, which default was not caused by Tenant, a Subtenant or
their respective agents, employees, contractors, licensees or invitees, then
Landlord shall cause such Fee Mortgage to be discharged of record prior to the
time that a foreclosure or other exercise of remedies under such Fee Mortgage
occurs such that the applicable Property is deleted from this Restated Lease.
If Landlord is unable to cause such Fee Mortgage to be discharged of record and
the applicable Property is deleted from this Restated Lease, Landlord shall
Indemnify Tenant for all losses, damages and expenses suffered by Tenant as a
result of such foreclosure or other exercise of remedies.


                              15.5
Termination of Purchase Option on Conveyance of Fee Estate. Notwithstanding
anything to the contrary contained herein, any unrelated bona fide purchaser of
the Fee Estate of any Property shall in no event be bound, as to subsequent
conveyances, by Tenant’s Right of First Offer or Tenant’s Right of First
Refusal, except as otherwise set forth in Section 15.6.


                              15.6
Sale of Premises; Mergers. Notwithstanding anything to the contrary contained
herein, including, without limitation, clause (c) of Section 15.2.1 and clause
(c) of Section 15.3.3, in the event that Landlord conveys the Premises or
substantially all of the Properties to a single Person, this Restated Lease
shall remain in full force and effect as a lease between such purchaser, as
Landlord, and Tenant for the Premises or for such Properties, as applicable.
Without limiting the generality of the foregoing, such purchaser shall be
bound, as to subsequent conveyances, by Tenant’s Right of First Offer and
Tenant’s Right of First Refusal. In the event that any entity merges with
Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or
acquires substantially all of the assets of Landlord, the Leemilt’s Lessor, the
Power Test Lessor, the Gettymart Lessor, such merged or successor entity shall
be bound by the provisions of Section 15.1 with respect to any subsequent
conveyance of the Fee Estate of any Property or such entity’s interest therein,
including, without limitation, Tenant’s Right of First Offer and Tenant’s Right
of First Refusal.


                              15.7
Zoning Lots. Without Tenant’s prior written consent, which Tenant shall not
unreasonably withhold, Landlord shall not enter into, and shall prevent the
Leemilt’s Lessor, the Power Test Lessor, and the Gettymart Lessor from entering
into, any agreement or instrument by which any Property is combined with any
other real property for purposes of any Law governing zoning, bulk, development
rights, or any similar matter, or by which any rights arising under such Laws
to develop any Property is transferred to any other real property.


50






	
 

	
 


	
 

	
15.8 Fleet
 Mortgage


	
 

	
 


	
 

	
          15.8.1
 Nondisturbance. Landlord shall be permitted to refinance the Fleet Mortgage
 only if Landlord obtains from the prospective lender a subordination,
 nondisturbance, and attornment agreement substantially in the form of Exhibit
 K (an “SNDA”) whereunder Tenant’s rights under this Restated Lease will not
 be disturbed upon any foreclosure or other exercise of remedies under the
 documents evidencing or securing such refinancing (a “Foreclosure”) as long
 as a Material Monetary Event of Default is not in existence at the time of
 such foreclosure or such other exercise of remedies, and providing such other
 assurances as are set forth in such Exhibit K.


	
 

	
 


	
 

	
          15.8.2
 Foreclosure of Property. If any Property is transferred or sold pursuant to a
 Foreclosure under the Fleet Mortgage, then this Restated Lease shall
 terminate as to such Property as of the date of such transfer; Fixed Rent
 shall be adjusted in accordance with the Fixed Rent Adjustment Procedures;
 and the amount held pursuant to this Restated Lease on account of advanced
 Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.


	
 

	
 


	
 

	
          15.8.3
 Post-Closing Undertaking. Within 180 days of the Restatement Effective Date,
 Landlord shall either (i) pay off and otherwise satisfy all outstanding
 obligations under the Fleet Mortgage and deliver to Tenant a document
 executed and delivered by Fleet National Bank in form and substance
 reasonably satisfactory to Tenant evidencing such satisfaction or (ii)
 deliver to Tenant an SNDA executed by the holder of the Fleet Mortgage as
 such Fleet Mortgage may have been modified or amended (a “Fleet SNDA”). If
 Landlord fails to comply with the provisions of the preceding sentence when
 and as required to do so, then Tenant shall be entitled to an offset of
 $50,000 per month (prorated daily) against Fixed Rent, so long as such
 failure continues.


	
 

	
 


	
 

	
          15.8.4
 Indemnification Regarding Failure to Obtain SNDA. Landlord shall Indemnify
 Tenant from and defend and hold Tenant harmless from and against any and all
 actual loss (including lost profits relating to the affected Properties),
 costs, claims, liability, penalties, judgements, damage or other injury,
 detriment, or expense (including Legal Costs, interest and penalties)
 actually incurred or suffered by Tenant (collectively, “Costs”) on account of
 Landlord’s failure to deliver a Fleet SNDA, as such Costs are directly
 related to Tenant’s business activities at the affected Properties, the Fleet
 Mortgage, or any replacement for the Fleet Mortgage or for the loan secured
 by the Fleet Mortgage. In the event that a court of competent jurisdiction
 enters a final, non-appealable judgment or order confirming the occurrence of
 any event allowing Tenant to recover under the foregoing Indemnity, then
 Tenant shall have the right to offset against any payment of Fixed Rent due
 hereunder an amount equal to the damages suffered by Tenant as a result of
 such Costs, as set forth in such final order or judgment. In the event that
 Tenant elects to offset any amount against Fixed Rent in accordance with this
 Section 15.8.4, Tenant shall give Landlord Notice of such election to offset
 at least twenty (20) days prior to effecting the same, which Notice shall
 include the amount of damages set forth in such final order or





51






	
 

	
 


	
 

	
judgment,
 the amount that Tenant plans to offset, and the timing of such offset.
 Nothing contained in this Section shall be deemed to limit Tenant’s right to
 offset Rent pursuant to the express provisions of Section 3.5


	
 

	
 


	
 

	
          15.8.5
 Representations and Warranties. Landlord hereby represents and warrants to
 Tenant that (i) attached as Schedule 16 is a list of all Properties
 encumbered by the Fleet Mortgage and (ii) neither the consummation of the
 transactions contemplated under the Merger Agreement nor the execution and
 delivery of this Restated Lease shall violate or breach any of the provisions
 of the Fleet Mortgage pursuant to a waiver by Fleet National Bank which shall
 be effective through January 31, 2001.





                    16.
TRANSFERS BY TENANT.


                              16.1
Tenant’s Limited Right. Except as specifically provided in Article 26 and
Section 26.2, Tenant may not assign, mortgage, pledge or transfer this Restated
Lease (collectively, a “Transfer”) without Landlord’s consent, which consent
shall not be unreasonably withheld, conditioned or delayed provided that the
assignee is no less creditworthy than Tenant immediately prior to such Transfer.
Tenant may not assign any part(s) of this Restated Lease (i.e. less than the
Premises) under any circumstance whatsoever. Any permitted assignee of Tenant
shall assume all obligations and liabilities of Tenant under this Restated
Lease. Notwithstanding the foregoing, the initial Tenant and all subsequent
Tenants shall remain jointly and severally liable and responsible for all
liabilities, responsibilities and obligations of Tenant under this Restated
Lease, whether accruing prior to, at the time of, or after any such permitted
assignment. Tenant shall promptly Notify Landlord of the completion of any
approved Transfer.


                              16.2
Permitted Assignments. Notwithstanding anything to the contrary contained in
Section 26.1, Tenant, without Landlord’s prior consent, and subject to the
terms of any applicable Third Party Lease, may assign all but not any part of
this Restated Lease (i.e. the Premises) to (i) Leasehold Mortgagee, or (ii) an
entity into which or with which Tenant merges or which acquires all or
substantially all of Tenant’s assets, provided that the merged or resulting
entity is, at the time of the merger, and remains, at all times throughout the
Term, an entity formed or incorporated under the Laws of any state or commonwealth
of the United States and in good standing under the Laws of such state or
commonwealth.


                              16.3
Tenant’s Right to Sublet. Subject to the terms of any applicable Third Party
Lease, Tenant may enter into a Sublease for any lawful purpose, extend, renew
or modify any Sublease, consent to any subleasing (or further levels of
subleasing) (all of which shall be within the defined term “Sublease,” and the
occupants thereunder shall all be deemed “Subtenants”), terminate any Sublease or
evict any Subtenant, all without Landlord’s consent. The term of any Sublease
(including renewal options thereof) shall not extend beyond the Term (including
only any Renewal Options previously exercised by Tenant). In the event that
Tenant enters into a Sublease of a Property for lawful purposes other than as a
Service Station Property or a Petroleum Terminal Property, Tenant shall at its
expense remove all USTs, above-ground tanks and related piping, and
contaminated soil at such Property, if any, if and to the extent required by
applicable Law or Environmental Law. Thereafter, notwithstanding anything to
the


52






contrary
contained herein, Tenant shall at its expense complete all environmental
investigations and/or remediations as may be required by any Government, except
to the extent that Landlord is required to complete such investigations and/or
Remediation pursuant to Section 7.6 or Section 9.1. Tenant hereby assigns,
transfers and sets over to Landlord all of Tenant’s right, title, and interest in
and to each Sublease entered into by Tenant from time to time, together with
all subrents or other sums of money due and payable under such Sublease and all
security deposited with Tenant under such Sublease. Such assignment shall,
however, become effective and operative only if this Restated Lease shall
expire or be terminated or canceled, or if Landlord re-enters or takes
possession of the Premises pursuant to this Restated Lease, following (in
either case) the expiration of all applicable cure periods. Notwithstanding the
foregoing, Tenant agrees that, upon the request of Landlord, all subtenancies,
as specified by Landlord, will be terminated before the expiration, termination
or cancellation of this Restated Lease. Notwithstanding anything to the contrary
contained herein, all Subleases shall be subject and subordinate to the terms
and conditions of this Restated Lease (as this Restated Lease may be renewed,
amended, supplemented, modified, replaced or restated from time to time) and,
unless Landlord elects otherwise, shall automatically terminate upon any
termination of this Restated Lease.


                              16.4
Subleases with Single Purpose Entities. In the event that Tenant subleases the
Premises or all or any portion of any Property to a bankruptcy-remote single
purpose entity or any similar entity that is an Affiliate and/or Subsidiary of
Tenant in connection with any subleasehold financing, Landlord shall enter into
and cause the Leemilt’s Lessor, the Power Test Lessor, and the Gettymart Lessor
to enter into (and shall request that the holder of any Fee Mortgage and any
applicable Third Party Lessor enter into) a non-disturbance agreement with such
Subtenant whereunder such Subtenant’s rights under such Sublease will not be
disturbed upon any termination of or other exercise of remedies under this
Restated Lease (or the termination of any superior estate, if applicable) and
which provides such other similar assurances as such Subtenant shall reasonably
request; provided that (i) such Sublease is on terms no less favorable to
Landlord with respect to the Property or Properties demised thereunder than the
corresponding terms hereunder, (ii) such financing is provided by a Permitted
Leasehold Mortgagee, and (iii) there shall be no more than 50 such subleasehold
financings outstanding at any point in time.


                              16.5
No Release. No Transfer or Sublease shall affect or reduce any of Tenant’s
obligations or Landlord’s rights under this Restated Lease. All obligations of
Tenant under this Restated Lease shall continue in full force and effect
notwithstanding any Sublease or Transfer.


                    17.
QUIET ENJOYMENT.


                              Landlord
covenants that, so long as Landlord has not terminated this Restated Lease on
account of a Material Monetary Event of Default by Tenant, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the Term without
molestation or disturbance by or from Landlord or anyone claiming by or through
Landlord or having title to the Premises paramount to Landlord, and free of any
encumbrance created or suffered by Landlord, except Permitted Exceptions,
provided, however, that the foregoing shall not apply if Landlord


53






loses
possession under a Third Party Lease for any reason other than Landlord’s
default thereunder, which was not caused by a corresponding default by Tenant
hereunder.


                    
18. DEFAULT BY TENANT; REMEDIES.


                              18.1
Definition of “Event of Default” The term “Event of Default” shall mean and
refer to the occurrence of any one or more of the circumstances.


	
 

	
 


	
 

	
          18.1.1
 Material Monetary Default. An Event of Default shall be deemed to have
 occurred if a Material Monetary Default shall occur and the Material Monetary
 Default shall continue and not be remedied for ten (10) days after Landlord
 has given Tenant Notice of such Material Monetary Default, specifying in
 reasonable detail the amount of money required to be paid by Tenant and the
 nature of such payment (any such Event of Default being referred to
 hereinafter as a “Material Monetary Event of Default”). Notwithstanding the
 foregoing, if a Material Monetary Default relating to Tenant’s failure to
 maintain any of the insurance coverage required in Article 12 shall occur, a
 Material Monetary Event of Default with respect thereto shall not be deemed
 to have occurred unless such Material Monetary Default shall continue and not
 be remedied for sixty (60) days after receipt of Landlord’s Notice, provided
 that Tenant shall, promptly upon the occurrence of such Material Monetary
 Default, and at all times until such Material Monetary Default is cured,
 maintain insurance coverage substantially equivalent, as reasonably
 determined by Landlord, to the insurance coverage to which such Material
 Monetary Default relates.


	
 

	
 


	
 

	
          18.1.2
 Non-Material Monetary Default. An Event of Default shall be deemed to have
 occurred if a Non-Material Monetary Default shall occur and the Non-Material
 Monetary Default shall continue and not be remedied for twenty (20) days
 after Landlord has given Tenant Notice of such Non-Material Monetary Default,
 specifying in reasonable detail the amount of money required to be paid by
 Tenant and the nature of such payment (any such Event of Default being
 referred to hereinafter as a “Non-Material Monetary Event of Default”).


	
 

	
 


	
 

	
          18.1.3
 Non-Monetary Default. An Event of Default shall be deemed to have occurred if
 (a) except as otherwise provided in clause (b) or (c) hereof, a Non-Monetary
 Default shall occur and the Non-Monetary Default shall continue and not be
 remedied by Tenant within 30 days after Landlord shall have delivered to
 Tenant a Notice describing the same in reasonable detail; (b) in the case of
 a Non-Monetary Default (other than a Bankruptcy Default) that cannot with due
 diligence be cured within 30 days from such Notice, Tenant shall not (x)
 within 30 days from Landlord’s Notice advise Landlord of Tenant’s intention
 to take all reasonable steps necessary to remedy such Non-Monetary Default,
 (y) duly commence the cure of such Non-Monetary Default within such period,
 and then diligently prosecute to completion the remedy of the Non-Monetary
 Default and (z) complete such remedy within a reasonable time under the
 circumstances; or (c)





54






	
 

	
 

	
 


	
 

	
 

	
a Bankruptcy
 Default occurs (any such Event of Default being referred to hereinafter as a
 “Non-Monetary Event of Default”).


	
 

	
 

	
 


	
 

	
Non-Monetary
 Defaults shall include, without limitation, a default under any Third Party
 Lease, the Leemilt’s Lease, any Power Test Lease, the Gettymart Lease or
 under the provisions of a Fee Mortgage as a result of any action or failure
 to act by Tenant, Subtenant or their respective agents, contractors,
 employees, invitees or licensees in violation of the provisions of this
 Restated Lease.





                              18.2
Remedies for Material Monetary Event of Defaults. If a Material Monetary Event
of Default occurs, then Landlord shall, at Landlord’s option, have any or all
of the following remedies, all of which shall be cumulative (so that Landlord’s
exercise of one remedy shall not preclude Landlord’s exercise of another
remedy), in addition to such other remedies as may be available at law or in
equity or pursuant to any other terms of this Restated Lease. Landlord’s
remedies shall include, without limitation:


	
 

	
 


	
 

	
          18.2.1
 Termination of Tenant’s Rights. Upon ten (10) days’ notice, Landlord may
 terminate Tenant’s right to possession of the Premises by any lawful means,
 in which case this Restated Lease shall terminate (and such date of
 termination shall be the Termination Date) and Tenant shall immediately
 surrender possession of the Premises to Landlord.


	
 

	
 


	
 

	
          18.2.2
 Taking of Possession. Landlord may re-enter and take possession of the
 Premises or any Property with or without process of law and remove Tenant,
 with or without having terminated this Restated Lease. This is intended to
 constitute an express right of re-entry on Landlord’s part.


	
 

	
 


	
 

	
          18.2.3
 Security Devices. Subject to applicable Laws, Landlord may change the locks
 and other security devices providing admittance to the Premises or any
 Property.


	
 

	
 


	
 

	
          18.2.4
 Injunction of Tenant’s Breaches. Landlord shall be entitled to obtain a court
 order enjoining Tenant from continuing conduct constituting a breach of
 Tenant’s covenants in this Restated Lease. Tenant specifically acknowledges
 that damages would not constitute an adequate remedy for Tenant’s breach of
 any non-monetary covenant contained in this Restated Lease.


	
 

	
 


	
 

	
          18.2.5
 Damages. Landlord may recover from Tenant all damages incurred by Landlord by
 reason of Tenant’s Default, including, without limitation, the costs of
 recovering possession, reletting the Premises, and any and all other damages
 legally recoverable by Landlord. Such damages shall include, at Landlord’s
 election, either (a) the Rent provided for in this Restated Lease, when and
 as due and payable pursuant to this Restated Lease, less (in the case of this
 clause (a) only) Landlord’s actual proceeds of reletting net of Landlord’s
 actual reasonable costs of reletting, or (b) the entire amount of Rent due
 for the entire Term (or Renewal Term, if applicable) shall accelerate and
 immediately become





55






	
 

	
 


	
 

	
due and
 payable, as the same shall be discounted to its then present value, using a
 discount rate equal to the then current semi-annual yield to maturity of a
 United States Treasury security having a maturity of ten (10) years. Landlord
 may recover such damages at any time after Tenant’s default, including after
 expiration of the Term.


	
 

	
 


	
 

	
          18.2.6
 Continue Lease. Landlord may at Landlord’s option maintain Tenant’s right to
 possession, in which case this Restated Lease shall continue in effect and
 Landlord shall be entitled to continue to enforce this Restated Lease,
 including the right to collect Rent and the right to any remedies for
 nonpayment.





                              18.3
Remedies for Other Events of Default. If a Non-Monetary Event of Default or a
Non-Material Monetary Default occurs, Landlord shall, at Landlord’s option,
have either or both of the following remedies, both of which shall be
cumulative (so that Landlord’s exercise of one remedy shall not preclude
Landlord’s exercise of the other remedy):


	
 

	
 


	
 

	
          18.3.1
 Injunction of Tenant’s Breaches. Landlord shall be entitled to obtain a court
 order enjoining Tenant from continuing conduct constituting a breach of
 Tenant’s covenants in this Restated Lease or compelling specific performance
 of Tenant’s covenants under this Restated Lease. Tenant specifically
 acknowledges that damages would not constitute an adequate remedy for
 Tenant’s breach of any non-monetary covenant contained in this Restated
 Lease.


	
 

	
 


	
 

	
          18.3.2
 Damages. Landlord may recover from Tenant all monetary damages whatsoever
 incurred by Landlord by reason of Tenant’s Default, subject to the provisions
 of Section 32.11.





                              18.4
Mitigation of Damages. Landlord agrees to take all commercially reasonable
steps necessary or appropriate to mitigate any damages that Landlord may suffer
on account of an Event of Default under this Restated Lease. Without limiting
the preceding sentence, in the event of a Material Monetary Default, Landlord
shall diligently endeavor to relet the Premises under any circumstances where
such reletting would mitigate Landlord’s damages, provided, however, that
Landlord shall only be obligated to relet or sell the Premises or any Property
in a manner consistent with fair market economic conditions at that time and
other terms and conditions customary at that time. Any such reletting shall not
constitute a surrender or an acceptance of a surrender of the Premises. In
light of the fact that Landlord and Tenant intend for this Restated Lease to be
a single, unitary Lease, Landlord shall, in its mitigation efforts, endeavor to
lease or sell the Premises (i.e. all of the Properties). Notwithstanding the
foregoing, however, as a consideration to Tenant for agreeing to the single,
unitary lease concept, Landlord agrees that if after a reasonable period of
time (not to exceed six (6) months), it cannot sell or lease the Premises (i.e.
all of the Properties), it shall be obligated to mitigate damages on a Property
by Property basis.


                              18.5
Tenant’s Late Payments. If Tenant makes any payment required under this
Restated Lease after such payment is first due and payable, then in addition to
any other remedies Landlord may have under this Restated Lease, and without
reducing or adversely affecting any of


56






Landlord’s
other rights and remedies, Tenant shall pay Landlord within twenty (20) days
after demand interest on such late payment, at an interest rate equal to the
Prime Rate plus three (3) percent, beginning on the date such payment was first
due and payable and continuing until the date when Tenant actually makes such
payment.


                              18.6
Landlord’s Right to Cure. If Tenant shall at any time fail to make any payment
or perform any other act on its part to be made or performed pursuant to this
Restated Lease and such failure continues beyond any applicable notice or cure
period, then Landlord, after ten (10) Business Days’ Notice to Tenant, or with
such notice (if any) as is reasonably practicable under the circumstances in
case of an emergency, and without waiving or releasing Tenant from any
obligation of Tenant or from any Default by Tenant and without waiving
Landlord’s right to take such action as may be permissible under this Restated
Lease as a result of such Default, may (but shall be under no obligation to)
make such payment or perform such act on Tenant’s part to be made or performed
pursuant to this Restated Lease. Landlord may enter upon any Property for such
purpose, and take all such action on any such Property, as may be reasonably
necessary under the circumstances, but in doing so shall not unreasonably
interfere with the conduct of operations on any such Property by Tenant or
anyone claiming through Tenant and shall comply with Tenant’s reasonable
instructions. Tenant shall reimburse Landlord, as Additional Rent (within
twenty (20) days after Notice from Landlord accompanied by reasonable backup
documentation), for all actual, out-of-pocket sums paid by Landlord and all
actual costs and expenses reasonably incurred by Landlord, together with
Landlord’s Legal Costs, in connection with the exercise of Landlord’s cure
rights under this Section.


                              18.7
Holding Over. The parties recognize and agree that if for any reason or no
reason Tenant remains in the Premises after the Termination Date, then Landlord
will suffer injury that is substantial, difficult or impossible to measure
accurately. Therefore, if both (a) Tenant remains in the Premises after the
Termination Date (for any month or partial month), for any reason or no reason,
and (b) either (i) Landlord at any time gives Tenant Notice that Landlord
elects to require Tenant to pay the liquidated damages described in this
Section or (ii) as of the date 31 days after the Termination Date, Landlord has
not commenced holdover proceedings against Tenant or otherwise proceeded to
remove Tenant from the Premises, then in addition to any other rights or
remedies available to Landlord, Tenant shall pay to Landlord, as liquidated
damages and not as a penalty, for each month (or portion of a month) during
which Tenant holds over in the Premises after the Termination Date, a sum equal
to: 110% (for the first month or partial month of holding over), 120% (for the
second month or partial month of holding over), and 150% (for each subsequent
month or partial month of holding over) times the Rent, including Additional
Rent, payable under this Restated Lease for the month in which the Termination
Date occurs.


                              18.8
Waivers. Landlord and Tenant irrevocably waive all rights to trial by jury in
any action, proceeding, counterclaim or other litigation arising out of or
relating to this Restated Lease, the relationship of Landlord and Tenant under
this Restated Lease, the enforcement of this Restated Lease, Tenant’s use or
occupancy of the Premises, any claim of injury or damage arising between
Landlord and Tenant, or any actions of Landlord in connection with or relating
to the enforcement of this Restated Lease. Tenant waives any right of
redemption provided for by Law.


57






                              18.9
Accord and Satisfaction; Partial Payments by Tenant. No payment by Tenant or
receipt by Landlord of a lesser amount than the amount required to be paid by
Tenant under this Restated Lease shall be deemed to be other than a payment on
account by Tenant, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of Rent be deemed an accord or
satisfaction. Landlord may accept any such check or payment without prejudice
to Landlord’s right to recover the balance of such Rent or pursue any other
remedy for nonpayment, including termination of this Restated Lease and
commencement of a summary dispossess proceeding. Notwithstanding any endorsement on any check or any statement to the contrary
in any letter accompanying any check or payment, Landlord shall apply any
partial payments of back Rent made by Tenant to the oldest outstanding Rent
under this Restated Lease, except to the extent Landlord elects otherwise in
its sole and absolute discretion.


                              18.10
Accord and Satisfaction; Partial Payments by Landlord. No payment by Landlord
or receipt by Tenant of a lesser amount than the amount required to be paid by
Landlord under this Restated Lease shall be deemed to be other than a payment
on account by Landlord, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment made pursuant to the terms of this
Restated Lease be deemed an accord or satisfaction. Tenant may accept any such
check or payment without prejudice to Tenant’s right to offset the balance of
the amount required to be paid by Landlord to Tenant against Tenant’s payment
of the Rent as may be specifically permitted under this Restated Lease.


                              18.11
Cross-Default. Any default under a Third Party Lease that remains uncured
beyond the applicable grace and/or notice period that is caused by the failure
of Tenant to comply with its obligations hereunder shall be a Non-Monetary
Event of Default under this Restated Lease.


                    19.
TERMINATION.


                              Upon
the Termination Date of this Restated Lease with respect to the Premises or any
Property pursuant to Article 13, 14, 15, 22 or 25, all Tenant Improvements and
in service USTs constituting part of the Premises or such particular Property,
as applicable, shall, subject to the rights of Third Party Lessors, become
Landlord’s property (subject to Permitted Exceptions), and Tenant shall deliver
to Landlord possession of the Premises or such Property, as applicable
(including, without limitation, all Improvements thereon), in good condition
and state of repair, free of material violations of Law and Environmental Law,
free of Hazardous Substances (other than Hazardous Substances (i) customarily
maintained at the Premises or such Property, as applicable, in the ordinary
course of the business being conducted thereon in material compliance with
Environmental Laws, and (ii) to the extent such Hazardous Substances constitute
Contamination Landlord is Remediating pursuant to Section 9.1) free of all
liens of mechanics, laborers or materialmen and all other liens and
encumbrances other than any such liens and encumbrances incurred by Landlord,
the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or a Third
Party Lessor arising from such party’s acts, and free of all Subleases and
tenancies, except to the extent Landlord elects otherwise pursuant to Section
16.3 hereof. In addition, upon such termination Tenant shall assign to
Landlord, without recourse, all assignable licenses and permits affecting the
Premises or such Property, as applicable, and all assignable contracts,
warranties and guarantees then in effect relating thereto, together with all
unpaid


58






insurance
awards and rights against insurance carriers as to then-existing insurance
claims relating thereto. Tenant shall also deliver to Landlord any unapplied
building insurance proceeds in Tenant’s possession. Tenant shall remove from
the Premises or such Property, as applicable, upon the Termination Date with
respect to the Premises or such Property, as applicable, all Personal Property.
Tenant shall, at its sole cost and expense, repair any damage to the Premises
or such Property caused by the removal of all Personal Property. If Tenant
fails to remove from the Premises or any Property, as applicable, any Personal
Property within thirty (30) days of the Termination Date, then such Personal Property
shall be deemed abandoned and may be used or disposed of by Landlord without
compensation to Tenant. Notwithstanding anything to the contrary contained in
this Restated Lease, if Landlord so elects by Notice to Tenant at least six (6)
months before the expiration of the Term (or if Tenant fails to timely notify
Landlord of its election not to exercise any Renewal Option granted hereunder
or this Restated Lease is terminated prior to the end of the Term, then within
a reasonable period of time under the circumstances), Tenant shall, at its sole
cost and expense, remove under applicable Environmental Law at or prior to the
Termination Date all USTs identified by Landlord in such Notice and all
Contamination, if any, associated therewith. Tenant shall continue to
completion after the Termination Date all Remediations to the extent required
by Environmental Law and shall continue to pay Rent (including Additional Rent)
for any Property rendered substantially unusable because of any such
Remediation until such time as such Property becomes usable for its use
immediately prior to the time at which such Remediation began or, if such
Property can no longer be used for such use, then until such time as such
Property becomes usable for any other lawful use. Notwithstanding the
foregoing, Tenant’s obligations pursuant to the preceding sentence to continue
Remediation and to continue to pay Rent shall cease on the date when such
Property has received Closure for Tenant’s Remediation. Nothing contained in
this Article 19 shall in any way diminish or otherwise affect Tenant’s
indemnification obligations set forth in Article 10.


                    20.
NOTICES.


                              20.1
Generally. All Notices shall be in writing and shall be addressed to Landlord
and Tenant as set forth below. Notices shall be (i) delivered personally to the
addresses set forth below, (ii) by Federal Express or other courier service to
the addresses set forth below, in which case they shall be deemed delivered on
the date of delivery (or when delivery has been attempted twice, as evidenced
by the written report of the courier service) to the address(es) set forth
below; or (iii) sent by certified mail, return receipt requested, in which case
they shall be deemed delivered upon receipt. Either party may
change its address by giving Notice in compliance with this Restated Lease.
Notice of such a change shall be effective only upon receipt. The addresses of
the parties are:


	
 

	
 


	
 

	
Landlord:
 125 Jericho Turnpike, Jericho, New York 11753

 Attention: Real Estate Manager


	
 

	
 


	
 

	
With a copy
 to: Latham & Watkins, 885 Third Avenue, 


	
 

	
New York, New York 10022


	
 

	
Attention:
 Richard L. Chadakoff, Esq.





59






	
 

	
 


	
 

	
Tenant: 125
 Jericho Turnpike, Jericho, New York 11753


	
 

	
Attention:
 President


	
 

	
 


	
 

	
With a copy
 to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.,


	
 

	
590 Madison Avenue, New York, New York
 10022


	
 

	
Attention:
 Robert G. Koen, Esq.





A copy of all
such Notices shall also be contemporaneously delivered in the manner set forth
herein to Leasehold Mortgagee, provided that Leasehold Mortgagee shall have
provided Landlord with Notice of its name and address and a copy of its
Permitted Leasehold Mortgage. Getty Properties Corp. shall be treated as
“Landlord” for all purposes hereunder such that any Notice or other
communication delivered to Getty Properties Corp. by Tenant or received by
Tenant from Getty Properties Corp. shall be deemed Notice delivered to Landlord
or received from Landlord (which term “Landlord” includes those subsidiaries of
Getty Properties Corp. who have approved this Restated Lease on the signature
page hereof), as applicable. In addition, any Notice or other communication
delivered to Getty Properties Corp. by Tenant or received by Tenant from Getty
Properties Corp. shall be deemed Notice delivered by Tenant to the Leemilt’s
Lessor, the Power Test Lessor, or the Gettymart Lessor, as applicable, or
received by the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart
Lessor from Tenant, as applicable.


                              
20.2 Defaults Under Other Agreements. In the event that Landlord receives
notice of the occurrence of any default with respect to any Third Party Lease,
the Leemilt’s Lease, the Power Test Lease, or the Gettymart Lease, Landlord
shall promptly provide Tenant and, if required to do so pursuant to Section
20.1, Leasehold Mortgagee, with Notice of such default. In the event that
Landlord receives notice of the occurrence of any default with respect to any
Fee Mortgage encumbering Landlord’s, the Leemilt’s Lessor’s, the Power Test
Lessor’s, the Gettymart Lessor’s or a Third Party Lessor’s interest in any Fee
Estate, Landlord shall endeavor to provide Tenant and, if required to do so
pursuant to Section 20.1, Leasehold Mortgage, with Notice of such default
reasonably promptly. In the event that Tenant receives notice of any default
under a Permitted Leasehold Mortgage or Sublease, Tenant shall provide Landlord
with Notice of such default.


                    21.
NO BROKER.


                              Landlord
and Tenant each represents and warrants to each other that it did not engage
any broker or finder in connection with this Restated Lease and that no person
is entitled to any commission or finder’s fee on account of any agreements or
arrangements made by such party with any broker or finder. Each party shall
Indemnify the other party against any breach of the foregoing representation by
the Indemnitor.


                    22.
THIRD PARTY LEASES.


                              22.1
Subordination; Conflict. The rights of Tenant hereunder are at all times
subject to the terms and provisions of the Third Party Leases (subject to the
applicable provisions of Sections 7.6, 9.1, 25.1 (with respect to Landlord’s
inability to declare a Non-Monetary Default for a Preexisting Violation (as
hereinafter defined) as of the Restatement Effective Date, but


60






without in any
way diminishing Landlord’s right to claim a Default for Tenant’s failure to
comply with its obligations under Sections 25.2 and 25.3 hereof), 25.2, 25.3,
and 30.1.11 and the Environmental Agreement), and Tenant agrees, subject to
such applicable provisions of this Restated Lease and the Environmental
Agreement, to perform in all material respects all of Landlord’s obligations,
as lessee, to be performed by it under the Third Party Leases’ initial terms
and all renewal terms except that Landlord shall remit and be obligated for the
fixed or base rent due to the Third Party Lessors. Notwithstanding the
foregoing and subject to the provisions of Sections 7.6, 9.1, 25.1 (with
respect to Landlord’s inability to declare a Non-Monetary Default for a
Preexisting Violation as of the Restatement Effective Date, but without in any
way diminishing Landlord’s right to claim a Default for Tenant’s failure to
comply with its obligations under Sections 25.2 and 25.3 hereof), 25.2, 25.3,
and 30.1.11 and the Environmental Agreement, to the extent that any failure to
perform any of Landlord’s obligations under a Third Party Lease would cause a
default to occur under such Third Party Lease, Tenant shall perform such
Landlord’s obligation. In the event that there is any conflict between the
terms and conditions of this Restated Lease and the terms and conditions of any
Third Party Lease, the terms and conditions of such Third Party Lease shall
control, except with respect to rental payments due thereunder. In the event
that any Third Party Lease is terminated for any reason, Tenant acknowledges
and agrees that the term of this Restated Lease as applicable to the Property
subject to such Third Party Lease shall end thirty (30) days prior to the
termination of such Third Party Lease. If a Third Party Lessor claims that any
default has occurred under any Third Party Lease, Landlord, at the request of
and at the sole cost and expense of Tenant, shall timely institute and
diligently prosecute any action or proceeding which Tenant, in its reasonable
judgment, deems meritorious, in order to contest the existence of such alleged
default under such Third Party Lease. Tenant shall Indemnify and hold harmless
Landlord from and against any and all such claims arising from or in connection
with such request, action or proceeding. This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability,
fines, suits, demands, costs and expenses of any kind or nature, including,
without limitation, Legal Costs incurred in connection with any such claim,
action or proceeding brought thereon. Tenant shall not make any claim against
Landlord for any damage which may arise, nor shall Tenant’s obligations
hereunder be diminished, by reason of (i) the failure of any such Third Party
Lessor to keep, observe or perform any of its obligations pursuant to the
applicable Third Party Lease, or (ii) the acts or omissions of any such Third
Party Lessor, or of its agents, contractors, servants, employees, invitees or
licensees.


	
 

	
 


	
 

	
22.2 Renewal
 Options.


	
 

	
 


	
 

	
          22.2.1 Fixed
 Rental. For any Third Party Lease that contains a Third Party Lease Renewal
 Option that specifies the rent that will be due and payable during the
 renewal period or provides a formula through which such rent is or will be
 ascertainable, Landlord shall exercise any such Third Party Lease Renewal
 Option exercisable during the Initial Term and applicable Renewal Term, and
 Tenant shall continue to sublease any Property subject to any such Third
 Party Lease during the Initial Term and the applicable Renewal Term, as
 applicable, on all of the terms and conditions contained in this Restated
 Lease. If Tenant does not exercise its Renewal Option for the Premises prior
 to the expiration of the Initial Term or the applicable Renewal Term pursuant
 to the express provisions of





61






	
 

	
 


	
 

	
 Section 2.1, then this Restated Lease shall
 be deemed terminated with respect to the Premises, including any Property
 with respect to which a Third Party Lease was renewed pursuant to the
 foregoing provisions, notwithstanding the fact that the end of the renewal
 term of any such Third Party Lease extends beyond the expiration of the Term
 of this Restated Lease. Notwithstanding the foregoing, if, not less than
 sixty (60) days prior to the date that notice is due to a Third Party Lessor
 pursuant to the terms of any such Third Party Lease with respect to the
 renewal thereof, Landlord and Tenant mutually agree in writing not to
 exercise the Third Party Lease Renewal Option contained in such Third Party
 Lease, then Landlord shall not be required to renew such Third Party Lease,
 and Tenant shall not be required to sublease the Property subject to such
 Third Party Lease. Upon the expiration of any such Third Party Lease with
 respect to which Landlord and Tenant mutually agree not to renew pursuant to
 the foregoing provisions, the Property subject to such Third Party Lease
 shall be deleted from this Restated Lease, Fixed Rent shall be adjusted in
 accordance with the Fixed Rent Adjustment Procedures, and the amounts held
 pursuant to this Restated Lease on account of advanced Real Estate Tax
 payments pursuant to Article 4 shall be adjusted accordingly.


	
 

	
 


	
 

	
          
 22.2.2 Unspecified Rent. For any Property subject to a Third Party Lease
 which contains a Third Party Lease Renewal Option but does not specify the
 rent that will be due and payable during the renewal period or provide a
 formula through which such rent is or will be ascertainable, the following
 procedures shall apply. No less than one hundred twenty (120) days prior to
 the date notice is due to a Third Party Lessor with respect to the renewal of
 the applicable Third Party Lease, Tenant shall provide Landlord with Notice
 of (a) Tenant’s reasonable determination of the amount of Fixed Rent payable
 hereunder allocable to the Property subject to such Third Party Lease, which
 determination shall be made in accordance with the principles set forth in
 the Fixed Rent Adjustment Procedures (the “Original Term Rent Allocation”),
 and (b) the maximum amount of Fixed Rent which Tenant would be willing to pay
 hereunder with respect to such Property during the renewal period of the
 Third Party Lease to which such Property is subject (the “Maximum Renewal
 Term Rent Allocation”). Landlord shall then negotiate with such Third Party
 Lessor the rental that will be due and payable by Landlord during the renewal
 period of such Third Party Lease (such amount being hereinafter referred to
 as the “Third Party Lease Renewal Rental”), and promptly notify Tenant after
 the Third Party Lease Renewal Rental has been determined. If the sum of (i)
 the Third Party Lease Renewal Rental and (ii) the Third Party Lease Spread
 (such sum being hereinafter referred to as the “Renewal Term Rent
 Allocation”) is equal to or less than the Original Term Rent Allocation, then
 Tenant shall continue to sublease the Property subject to such Third Party
 Lease during the Term on all of the terms and conditions contained in this
 Restated Lease, except that the Fixed Rent due and payable hereunder shall be
 reduced by an amount equal to fifty (50) percent of the difference, if any,
 between the Original Term Rent Allocation and the Renewal Term Rent
 Allocation. If the Renewal





62






	
 

	
 


	
 

	
Term Rent
 Allocation is greater than the Original Term Rent Allocation but is less than
 or equal to the Maximum Renewal Term Rent Allocation, then Tenant shall
 continue to sublease such Property during the Term on all of the terms and
 conditions contained in this Restated Lease, except that the Fixed Rent due
 and payable hereunder shall be increased by an amount equal to the difference
 between the Renewal Term Rent Allocation and the Original Term Rent
 Allocation. If the Renewal Term Rent Allocation is greater than the Maximum
 Renewal Term Rent Allocation, then Landlord shall offer to continue to
 sublease such Property to Tenant on all terms and conditions contained in
 this Restated Lease, except that Landlord shall be entitled to require that
 the Fixed Rent due and payable hereunder be increased by an amount equal the
 difference between the Renewal Term Rent Allocation and the Original Term
 Rent Allocation if Tenant so elects to continue to sublease such Property.
 Tenant shall have thirty (30) days from receipt of Landlord’s offer to
 provide Landlord with Notice of Tenant’s election to continue to sublease
 such Property on such terms. If Tenant elects not to continue to sublease
 such Third Party Lease or fails to provide Landlord with Notice within such
 thirty-day period, then Landlord shall have the right, but not the
 obligation, to exercise its Third Party Lease Renewal Option with respect to
 such Property without any obligation owed to Tenant relating thereto.
 Notwithstanding the foregoing, if, not less than sixty (60) days prior to the
 date that notice is due to a Third Party Lessor pursuant to the terms of any
 such Third Party Lease with respect to the renewal thereof, Landlord and
 Tenant agree in writing not to exercise the Third Party Lease Renewal Option
 contained in such Third Party Lease, then Landlord shall not be required to
 renew such Third Party Lease, and Tenant shall not be required to sublease
 the Property subject to such Third Party Lease. If Tenant rejects or is
 deemed to reject Landlord’s offer to continue to sublease a Property pursuant
 to the provisions of this Section or if Landlord and Tenant agree not to
 renew pursuant to the foregoing provisions, then such Property shall be
 deleted from this Restated Lease, Fixed Rent shall be adjusted in accordance
 with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to
 this Restated Lease on account of advanced Real Estate Tax payments pursuant
 to Article 4 shall be adjusted accordingly.





                              22.3
Renewals. With respect to any Property subject to a Third Party Lease that does
not contain a Third Party Lease Renewal Option and expires on or prior to the
end of the Initial Term or then applicable Renewal Term, Landlord and Tenant shall
each have a non-exclusive right to negotiate a renewal of such Third Party
Lease or a direct lease with such Third Party Lessor under such Third Party
Lease, as applicable. At the end of the current term of any such Third Party
Lease, the Property subject to such Third Party Lease shall be deleted from
this Restated Lease, Fixed Rent shall be adjusted in accordance with the Fixed
Rent Adjustment Procedures, and the amounts held pursuant to this Restated
Lease on account of advanced Real Estate Tax payments pursuant to Article 4
shall be adjusted accordingly. Notwithstanding anything to the contrary
contained herein, Tenant shall have the exclusive right, with respect to any
twenty-five (25) of such Properties, to negotiate with the Third Party Lessor
of the applicable Property until the date six (6) months prior to the
expiration of such Third Party Lease by


63






providing
Landlord with Notice of its election to assert its exclusive right with respect
to such Property at least eighteen (18) months prior to the expiration of such
Third Party Lease. If Tenant fails to enter into a direct lease with such Third
Party Lessor before the date six (6) months prior to the expiration of said
Third Party Lease, then each of Landlord and Tenant shall thereafter have a
non-exclusive right to negotiate a renewal of such Third Party Lease or a
direct lease, as applicable, with such Third Party Lessor without any
obligation owed to the other party hereunder.


	
 

	
 


	
 

	
Related
 Party Leases.


	
 

	
 


	
 

	
          22.4.1
 Power Test Lease. Landlord shall cause the term of each Power Test Lease to
 be extended such that it shall not expire prior to the expiration of this
 Restated Lease, notwithstanding anything to the contrary contained herein or
 in any Power Test Lease. On or before the Restatement Effective Date,
 Landlord shall enter into a lease modification agreement with the Power Test
 Lessor substantially in the form set forth on Schedule 12.


	
 

	
 


	
 

	
          22.4.2
 Leemilt’s Lease. Landlord shall cause the term of the Leemilt’s Lease to be
 extended such that it shall not expire prior to the expiration of this
 Restated Lease, notwithstanding anything to the contrary contained herein or
 in the Leemilt’s Lease. On or before the Restatement Effective Date, Landlord
 shall enter into a new lease with the Leemilt’s Lessor the in a form mutually
 acceptable to the parties hereto. In the event that this Restated Lease is
 terminated with respect to the Properties covered by the Leemilt’s Lease by
 operation of law as a result of the termination of the Leemilt’s Lease, this
 Restated Lease shall be reinstated with respect to such Properties as of the
 Restatement Effective Date simultaneously with the effectiveness of the new
 Leemilt’s Lease between Leemilt’s Lessor, as landlord and Landlord, as
 tenant. Landlord agrees to execute and/or cause Leemilt’s Lessor to execute
 any and all documents necessary to effectuate such reinstatement, including
 an amendment to the Leemilt’s Lease in form and substance reasonably
 satisfactory to Landlord. Landlord shall Indemnify Tenant from and defend and
 hold Tenant harmless from and against any and all actual loss (including lost
 profits related to the affected properties, costs, claims, liability,
 penalties, judgements, damage or other injury, detriment, or expense
 (including Legal Costs, interest and penalties) actually incurred or suffered
 by Tenant on account of the termination of the Leemilt’s Lease and subsequent
 failure by Landlord to effectuate the reinstatement of the Leemilt’s Lease
 promptly thereafter, as such costs are directly related to Tenant’s business
 activities at the affected Properties. In the event that a court of competent
 jurisdiction enteres a final, non-appealable judgment or order confirming the
 occurrence of any event allowing Tenant to recover under the foregoing
 Indemnity, the Tenant shall have the right to offset against any payment of
 Fixed Rent due hereunder an amount equal to the damages suffered by Tenant as
 a result of such costs, as set forth in such final order or judgement. In the
 event that Tenant elects to offset any amount against Fixed Rent in
 accordance with this Section 22.4.2, Tenant shall give Landlord Notice of
 such election to offset at least twenty (20) days prior to





64







	
 

	
 


	
 

	
effecting
 the same, which Notice shall include the amount of damages set forth in such
 final order or judgment, the amount that Tenant plans to offset, and the timing
 of such offset. Nothing contained in this Section shall be deemed to limit
 Tenant’s right to offset Rent pursuant to the express provisions of Section
 3.5.


	
 

	
 


	
 

	
          22.4.3
 Gettymart Lease. Landlord shall cause the term of the Gettymart Lease to be
 extended such that it shall not expire prior to the expiration of this
 Restated Lease, notwithstanding anything to the contrary contained herein or
 in the Gettymart Lease. On or before the Restatement Effective, Landlord
 shall enter into a new lease with the Gettymart Lessor in a form mutually
 acceptable to the parties hereto.


	
 

	
 


	
 

	
          22.4.4
 Renewal Options. Landlord hereby agrees that, as long as this Restated Lease
 has not been terminated in connection with the occurrence of a Material
 Monetary Event of Default, Tenant may exercise any and all of its renewal
 rights granted under the Power Test Lease, the Leemilt’s Lease and the
 Gettymart Lease on its behalf so as to cause the term of each such lease not
 to expire prior to the expiration of this Restated Lease





                               22.5
Termination of Third Party Lease. If a Third Party Lease shall terminate as a
result of a default by Landlord under such Third Party Lease, which default did
not result, either directly or indirectly, from the acts or omissions of
Tenant, Subtenant or their respective agents, contractors, employees, licensees
or invitees, then Landlord shall Indemnify Tenant with respect to such
termination. If (a) the provisions of a Third Party Lease grant to Landlord, as
tenant thereunder, the right to obtain a non-disturbance agreement from the
holder of a Fee Mortgage encumbering the Fee Estate subject to such Third Party
Lease whereunder the holder of such Fee Mortgage agrees that Landlord’s rights
under such Third Party Lease will not be disturbed as a result of any
foreclosure or other exercise of remedies under its Fee Mortgage, provided that
Landlord is not in default under such Third Party Lease at the time of such
foreclosure (such agreement being referred to hereinafter as a “Third Party
Lease Non-disturbance Agreement”), and (b) Landlord fails to obtain such Third
Party Lease Non-disturbance Agreement, then if such Third Party Lease shall
terminate as a result of any foreclosure or other exercise of remedies under
such Fee Mortgage (except as a result of the acts or omissions of Tenant,
Subtenant, or their respective agents, contractors, employees, licensees or
invitees), Landlord shall either, at Landlord’s election, (i) obtain a new
lease with respect to the Property subject to such Third Party Lease, the terms
of which do not increase Tenant’s obligations hereunder or reduce its rights
hereunder in any material respects, including, without limitation, with respect
to the payment of Rent, or (ii) pay Lease Termination Damages to Tenant. If (a)
the provisions of a Third Party Lease grant to Landlord, as tenant thereunder,
the right to obtain a Third Party Lease Non-disturbance Agreement and (b)
Landlord, at any time after the date hereof, receives notice from the applicable
Third Party Lessor that such Third Party Lessor intends to enter into a Fee
Mortgage with respect to the Fee Estate subject to such Third Party Lease, then
Landlord shall so inform Tenant and shall use its reasonable best efforts to
cause the prospective holder of the Fee Mortgage to enter into a
Non-disturbance Agreement with Landlord on such prospective holder’s customary
form. Anything to the contrary contained herein notwithstanding, Landlord’s
failure to obtain a Third Party Lease Non-disturbance Agreement shall in no
event be deemed hereunder to


65






be a default
by Landlord under the applicable Third Party Lease or hereunder. Unless
Landlord obtains a new lease from the applicable Third Party Lessor pursuant to
the preceding provisions, upon any termination or expiration of a Third Party
Lease, the Property subject to such Third Party Lease shall be deemed deleted
from this Restated Lease and, provided that such expiration or termination was
not caused, directly or indirectly, by the acts or omissions of Tenant,
Subtenant or their respective agents, contractors, employees, licensees or
invitees, the Fixed Rent shall be adjusted to reflect such deletion in
accordance with the Fixed Rent Adjustment Procedures, and the amounts held
pursuant to this Restated Lease on account of advanced Real Estate Tax payments
pursuant to Article 4 shall be adjusted accordingly.


                    23.
WAIVERS.


                              23.1
No Waiver by Silence. Failure of either party to complain of any act or
omission on the part of the other party shall not be deemed a waiver by the
noncomplaining party of any of its rights under this Restated Lease. All
waivers must be in writing and signed by the party granting the same. No waiver
by either party at any time of any breach of any provisions of this Restated
Lease shall be a waiver of a breach of any other provision of this Restated
Lease or a consent to any subsequent breach of the same or any other provision.
No acceptance by Landlord of any partial payment shall constitute an accord or
satisfaction but shall only be deemed a part payment on account.


                              23.2
No Landlord’s Lien. Landlord confirms and acknowledges that Landlord has no
lien, right of distraint, or security interest in any Personal Property located
in, on or at the Premises, and that such Personal Property shall not constitute
security for payment of any Rent. If, at any time after the Restatement
Effective Date, any statute or principle of law would grant Landlord any such
lien or security interest, then Landlord hereby waives the benefit of any such
statute and such lien. Landlord further agrees to execute documentation waiving
its right to a Landlord’s lien in the form attached hereto as Schedule 11.


                    24.
FURTHER ASSURANCES; ADDITIONAL DELIVERIES.


                              24.1
Estoppel Certificates. At any time and from time to time, upon not less than
ten (10) Business Days’ prior written request by either party to this Restated
Lease (the “Requesting Party”), the other party to this Restated Lease (the
“Certifying Party”) shall execute, acknowledge and deliver to the Requesting
Party (or directly to a third party whose name and address are provided by the
Requesting Party) up to four original counterparts of an Estoppel Certificate.
Any Estoppel Certificate may be relied upon by any third party to whom an
Estoppel Certificate is required to be directed. At any time in connection with
its proposed execution of a Permitted Leasehold Mortgage or other proposed
financing and otherwise no more frequently than once every twelve (12) months,
Tenant may (a) request that Landlord request that the Third Party


66






Lessors
execute Third Party Lease Estoppel Certificates, (b) request that Landlord
cause the Power Test Lessor to execute a Power Test Lease Estoppel Certificate,
(c) request that Landlord cause the Leemilt’s Lessor to execute a Leemilt’s
Lease Estoppel Certificate and (d) request that Landlord cause the Gettymart
Lessor to execute a Gettymart Lease Estoppel Certificate. Upon Tenant making
the request referred to in clause (a), (b), (c) or (d) of the preceding
sentence, Landlord shall use reasonably diligent efforts to request that the
Third Party Lessors execute the Third Party Lease Estoppel Certificates and
shall cause the Power Test Lessor to execute the Power Test Lease Estoppel
Certificate, the Leemilt’s Lessor to execute the Leemilt’s Lease Estoppel
Certificate, and the Gettymart Lessor to execute the Gettymart Lease Estoppel
Certificate. In addition, at such time as Tenant requests estoppel certificates
pursuant to this Section in connection with any proposed financing, Tenant may
require that Landlord request from any Third Party Lessor or Fee Mortgagee any
consents or approvals that Tenant may be required to obtain from such parties
in connection with such proposed financing.


                              24.2
Equipment Liens. If at any time or from time to time Tenant and/or Subtenant
desires to enter into or grant any Equipment Liens that comply with the
definition of such term, then upon Tenant’s and/or Subtenant’s request Landlord
shall enter into such customary documentation (with a detailed description)
with respect to the property leased or otherwise financed or encumbered
pursuant to such Equipment Liens as Tenant and/or Subtenant shall request,
providing for matters such as the following: (a) Landlord’s waiver of the right
to take possession of such property upon occurrence of an Event of Default; and
(b) customary agreements by Landlord to enable the secured party to repossess
such property without damage to the applicable Property or Properties in the
event of a default by Tenant and/or such Subtenant permitting such secured
party to exercise remedies under its Equipment Lien, which customary
documentation shall be substantially identical in all material respects to the
form of Landlord’s Equipment Lien waiver attached hereto as Schedule 11 and
made a part hereof. Any such Equipment Lien shall be subordinate to this
Restated Lease.


                              24.3
Further Assurances. Each party agrees to execute and deliver such further documents,
and perform such further acts, as may be reasonably necessary to achieve the
intent of the parties with respect to Tenant’s leasing of the Premises from
Landlord, as set forth in this Restated Lease.


                    25.
OBLIGATIONS UNDER ORIGINAL LEASE.


                              25.1
Generally. All rights and obligations of Landlord and Tenant under the Original
Lease shall remain unmodified and in full force and effect with respect to any
period prior to the Restatement Effective Date, and nothing contained herein
shall be deemed to restate, consolidate, amend or otherwise affect any rights
or obligations thereunder with respect to any period prior to the Restatement
Effective Date, all of which shall survive the execution, delivery and
effectiveness of this Restated Lease and the occurrence of the Restatement
Effective Date, provided, however, to the extent any such obligations are restated
and amended hereunder, they shall survive, be interpreted and be enforced in
accordance with the terms of this Restated Lease. Notwithstanding the foregoing
and anything contained in this Restated Lease to the contrary, Tenant shall
have no liability or obligation whatsoever to Landlord and Landlord shall not
declare the occurrence of a default under the Original Lease or a Default
hereunder with respect to (a) any of the Abandoned Properties, or (b) any
default that may exist under the Original Lease on or prior to the Restatement
Effective Date, except as expressly provided to the contrary in Sections 25.2
and 25.3 hereof and in the Environmental Agreement. Except to the extent
specifically provided to the contrary in this Restated Lease and in the
Environmental Agreement, Landlord shall not be liable for any defaults now
existing under the Original Lease. On or prior to the


67






Restatement
Effective Date, all subleases, licenses and other occupancy agreements
affecting the Abandoned Properties shall be assigned to Landlord.


                              25.2
Violations of Law.


                              (a)
In the event that any violation of Law exists with respect to any Property as
of the Restatement Effective Date, whether or not any party shall have received
any notice or otherwise becomes aware of such violation (any such violation
being referred to hereinafter as a “Preexisting Violation”), the following
provisions shall apply. If the existence of such Preexisting Violation
constitutes a breach of Landlord’s representation contained in Section 30.1.4,
Landlord shall be solely responsible, at its own cost and expense, for curing
such Preexisting Violation. If any such other Preexisting Violations are listed
on Schedule 6, Tenant shall be solely responsible, at its own cost and expense,
for curing such Preexisting Violations. Any Preexisting Violation (other than a
Preexisting Violation that constitutes a breach of Landlord’s representation
contained in Section 30.1.4 or listed on Schedule 6) relating to a Property
owned in fee by Landlord, the Leemilt’s Lessor, the Gettymart Lessor, or the
Power Test Lessor which becomes a Major Violation as a result of a Governmental
Request by Tenant, which Governmental Request is reasonably necessary in connection
with Construction Work necessary to cure dangerous conditions which exist at
the applicable Property as of the Restatement Effective Date or to continue
operating such Property for its then current use, shall be referred to
hereinafter as an “Eligible Legal Violation”. Tenant shall be solely
responsible for curing Eligible Legal Violations and for otherwise causing the
Premises to comply in all material respects with all Laws, subject to the terms
and provisions of Section 25.1 (with respect to Landlord’s inability to declare
a Non-Monetary Default for a Preexisting Violation as of the Restatement
Effective Date, but without in any way diminishing Landlord’s right to claim a
Default for Tenant’s failure to comply with its obligations under Section 25.2
and 25.3 hereof) and Section 25.2(b) and 25.2(c) below. Notwithstanding the
foregoing, provided that Tenant complies with all the procedures set forth or
referred to in this Section, the actual, out-of-pocket costs and expenses
incurred in connection with curing all such Eligible Legal Violations shall be
allocated between Tenant and Landlord as follows:


	
 

	
 


	
 

	
          25.2.1
 First, Tenant shall pay all costs and expenses incurred therewith until the
 amount so incurred equals $250,000 in aggregate.


	
 

	
 


	
 

	
          25.2.2
 Second, Landlord and Tenant shall share equally, on a pro rata basis, the
 next $2,750,000 of such costs and expenses incurred therewith until the
 amount so incurred equals $3,000,000 in aggregate.


	
 

	
 


	
 

	
          25.2.3
 Third, to the extent that such costs and expenses incurred therewith exceeds
 $3,000,000, all such costs and expenses shall be borne by Tenant.





The net effect
of the foregoing provisions is that Landlord shall in no event pay more than
$1,375,000 in connection with the curing of all such Eligible Legal Violations.
The procedures set forth in Article III, Section 2 of the Environmental
Agreement shall, to the extent applicable,


68






govern the
procedures and mechanics with respect to such allocation between Landlord and
Tenant. Notwithstanding the foregoing, Tenant shall be entitled to cure any
such Eligible Legal Violation at its sole cost and expense without seeking any
reimbursement from Landlord or any allocation of such costs and expenses
between itself and Landlord pursuant to the provisions of clauses 25.2.1
through 25.2.3, in which case the procedures set forth above with respect to
such allocation and reimbursement shall be inapplicable. With respect to (a)
any Major Violation relating to a Property owned in fee by Landlord, the
Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor which is not
considered an Eligible Legal Violation and (b) any Major Violation relating to
a Property owned in fee by a Third Party Lessor which is not considered an
Eligible Legal Violation (as such term is modified pursuant to Section 25.2(c)
below), Tenant shall be solely responsible, at its own cost and expense, for
curing the same, subject to the terms and provisions of Section 25.1 (with
respect to Landlord’s inability to declare a Non-Monetary Default for a
Preexisting Violation as of the Restatement Effective Date, but without in any
way diminishing Landlord’s right to claim a Default for Tenant’s failure to
comply with its obligations under Sections 25.2 and 25.3 hereof). Anything to
the contrary contained herein notwithstanding, Landlord shall have no liability
or obligation whatsoever hereunder with respect to any Eligible Legal Violation
at any time after the second (2nd) anniversary of the Restatement Effective
Date, unless the curing of any such Eligible Legal Violation commenced prior to
such date.


                              
(b) Uneconomic Cure; Fee Property. Notwithstanding anything to the contrary
contained herein, if an Eligible Legal Violation exists with respect to any
Property owned by Landlord, the Leemilt’s Lessor, the Gettymart Lessor, or the
Power Test Lessor in fee and if the Government is then actively requiring the
cure of such Eligible Legal Violation, Tenant shall cure the same.
Notwithstanding the foregoing, if Tenant reasonably determines that effecting
such cure would be Uneconomic, then, provided that the cure of such violation
at such Property exceeds, in Tenant’s reasonable judgment, $100,000 (such
amount being referred to herein as the “Uneconomic Threshold”), Tenant may then
deliver a Notice which sets forth Tenant’s request to delete such Property from
this Restated Lease and reasonable grounds, in reasonable detail, for Tenant’s
determination that the curing of such Eligible Legal Violation would be
Uneconomic (a “Deletion Request”). Landlord shall, within thirty (30) days of
receipt of such Deletion Request, provide Notice to Tenant as to whether
Landlord will cure such Eligible Legal Violation and shall begin to diligently
prosecute the cure of the same. If Landlord so elects to cure such Eligible
Legal Violation, it shall effect such cure at its sole cost and expense without
seeking reimbursement from Tenant, and any sums expended by Landlord in
connection therewith shall in no event be deemed to be or considered as amounts
expended by Landlord in connection with its obligation under Section 25.2.2. If
Landlord elects to and so cures such Eligible Legal Violation, Landlord shall
have the right but not the obligation to continue to sublease such Property to
Tenant on all the terms and conditions set forth in this Restated Lease. If,
however, Landlord fails to respond to Tenant’s Deletion Request within such
thirty-day period or fails to commence to cure such Eligible Legal Violation
and diligently pursue such cure within such thirty-day period, then, as of the
date which is sixty (60) days after Tenant delivers the Deletion Request to
Landlord, the applicable Property shall be deemed deleted from this Restated
Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance
with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to
this Restated Lease on account of advanced Real Estate Tax payments pursuant to
Article 4 shall be adjusted accordingly. Notwithstanding the


69






foregoing, if
Tenant has expended at least $100,000 (net of any reimbursements received from
Landlord or any third parties) in connection with curing Eligible Legal
Violations on such Property or if Tenant has expended at least $2,000,000 (net
of any reimbursements received from Landlord or any third parties) in
connection with curing Eligible Legal Violations on any Property or Properties
(whether or not Landlord shall have expended any amount with respect to curing
Eligible Legal Violations on the applicable Property), then Tenant shall be
entitled to deliver a Deletion Request notwithstanding the fact that the cure
of such violation does not, in Tenant’s reasonable judgment, exceed the
Uneconomic Threshold. In the event that the Government is actively requiring
the cure of an Eligible Legal Violation, the cure of which Tenant reasonably
determines to be Uneconomic but which will not exceed the Uneconomic Threshold,
Tenant may nonetheless deliver a Deletion Request to Landlord. If such Deletion
Request sets forth a commercially reasonable basis for Tenant’s claim that the
cure of such violation would be Uneconomic, Landlord shall not unreasonably
withhold its consent to treating the cure of such violation as one which
exceeds the Uneconomic Threshold. Anything to the contrary contained herein
notwithstanding, with respect to any Property owned in fee by Landlord, the
Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor, Tenant shall
have no right to deliver a Deletion Request or otherwise refrain from curing an
Eligible Legal Violation because curing the same would be Uneconomic at any
time after the fourth (4th) anniversary of the Restatement Effective Date.


                              (c)
Cure; Third Party Leases. Notwithstanding anything to the contrary contained
herein, if an Eligible Legal Violation (the definition of which term shall be
deemed modified for the purpose of this Section 25.2(c) to refer to a Major
Violation relating to a Property owned in fee by a Third Party Lessor) or preexisting
maintenance condition exists with respect to any Property owned by a Third
Party Lessor and if the Government or another third party is then actively
requiring the cure of such Eligible Legal Violation or preexisting maintenance
condition, then Tenant may, at its election, cure such Eligible Legal Violation
or preexisting maintenance condition. If Tenant elects to so cure, then the
expenses incurred in effecting such cure shall be allocated pursuant to the
provisions of clauses 25.2.1 through 25.2.3 (except that Tenant shall have the
right to cure such Eligible Legal Violation at its sole cost and expense as set
forth in Section 25.2(a)), it being understood that Landlord shall in no event
be obligated to pay more than $1,375,000 in aggregate in connection with its
contribution obligations pursuant to this Section 25.2. If Tenant elects not to
cure, Tenant must provide Landlord with Notice of such election within thirty
(30) days after receipt of notice of such Eligible Legal Violation or preexisting
maintenance condition. Upon Landlord’s receipt of such Notice, Landlord shall,
within thirty (30) days of receipt of such Notice, provide Notice to Tenant as
to whether Landlord will cure such Eligible Legal Violation or preexisting
maintenance condition and shall begin to diligently prosecute the cure of the
same. Any sums expended by Landlord in connection with curing an Eligible Legal
Violation pursuant to the preceding sentence shall in no event be deemed to be
or considered amounts expended by Landlord in connection with its obligation
under Section 25.2.2. If Landlord elects to and so cures such Eligible Legal
Violation or such preexisting maintenance condition, then Landlord shall
continue to sublease such Property to Tenant on all the terms and conditions
set forth in this Restated Lease. If, however, Landlord fails to respond to
Tenant’s Notice of election not to cure within thirty (30) days of receipt of
the same or if Landlord fails to commence to cure and continue to diligently


70






pursue such Eligible
Legal Violation or such preexisting maintenance condition within such
thirty-day period, then, as of the date which is sixty (60) days after Tenant
delivers its Notice of election not to cure, the applicable Property shall be
deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to
reflect such deletion in accordance with the Fixed Rent Adjustment Procedures,
the amounts held pursuant to this Restated Lease on account of advanced Real
Estate Tax payments pursuant to Article 4 shall be adjusted accordingly, and
Landlord shall pay Tenant Lease Termination Damages with respect to the
deletion of such Property. The rights of Landlord and Tenant pursuant to this
Section shall continue in full force and effect until the expiration or earlier
termination of this Restated Lease.


                              25.3
Violation of Environmental Law. In the event that any violation of Environmental
Law exists with respect to any Property as of the Restatement Effective Date
whether or not any party shall have received notice of or otherwise become
aware of such violation (such violation being referred to herein as a
“Preexisting Environmental Violation”), the following provisions shall apply.
The mere existence of any such Preexisting Environmental Violation shall not
cause Tenant to be in default under this Restated Lease. Landlord’s and
Tenant’s obligations with respect to environmental matters shall be as set
forth elsewhere in this Restated Lease and in the Environmental Agreement.


                              25.4
No Actions. Except to the extent required by Law or Environmental Law, neither
Landlord nor Tenant shall take any action (i) reasonably likely to cause an
applicable Government or a party other than the other party hereto to assert a
claim seeking Remediation or other activity related to compliance with Law or
Environmental Law, or (ii) to compromise, admit any fact, concede liability or
otherwise materially prejudice Landlord’s or Tenant’s, as applicable, ability
to defend any actual or potential claim with respect to compliance with Law or
Environmental Law.


                    26.
PERMITTED LEASEHOLD MORTGAGES; RIGHTS OF LEASEHOLD MORTGAGEE.


                              26.1
Tenant’s Right to Mortgage Lease. Notwithstanding anything to the contrary
contained in this Restated Lease, the Leemilt’s Lease, the Gettymart Lease, or
in any Power Test Lease or Fee Mortgage, but subject to the terms of the Third
Party Leases, Tenant, and any permitted successor or assign of Tenant, may, without
Landlord’s consent, from time to time enter into a Permitted Leasehold
Mortgage, provided that no more than two (2) Permitted Leasehold Mortgages may
encumber this Restated Lease and the Leasehold Estate demised hereunder at any
time. There shall be no limitation or restrictions upon the principal amount
and other sums secured by any such Permitted Leasehold Mortgage, and such
principal amount or other sums may also be secured by other mortgages, deeds of
trust or security agreements. Any Permitted Leasehold Mortgage shall by its
terms be made expressly subject to all Landlord’s rights under the provisions,
covenants, conditions, exceptions and reservations herein contained. Landlord
shall not be bound to recognize Leasehold Mortgagee or to deliver to same any
Notice required under the terms of this Restated Lease unless and until
Leasehold Mortgagee and Tenant shall have notified Landlord in writing pursuant
to Article 20 hereof of the existence of its Permitted Leasehold Mortgage and
of the name and address of Leasehold Mortgagee.


71






                              26.2
Rights of Leasehold Mortgagee. Landlord hereby agrees with and for the benefit
of Leasehold Mortgagee that from and after the date that it delivers to
Landlord the Notice referred to in Section 26.1 hereof, subject to the rights
of Third Party Lessors:


	
 

	
 


	
 

	
          26.2.1
 Cancellations, Modifications. Except as otherwise provided in this Restated
 Lease, no cancellation, surrender, acceptance of surrender, or modification
 of this Restated Lease (provided, however, that Leasehold Mortgagee’s consent
 shall not be required if such modifications do not materially increase
 Tenant’s obligations or decrease Tenant’s rights hereunder) shall be binding
 upon Leasehold Mortgagee or affect the lien of the Permitted Leasehold
 Mortgage thereof, without the prior written consent of Leasehold Mortgagee.


	
 

	
 


	
 

	
          26.2.2
 Notice and Demands. No Notice which shall be given by Landlord to Tenant
 shall be effective unless a copy of said Notice shall be given to Leasehold
 Mortgagee within the time when such Notice shall be required or permitted to
 be given. In the case of an assignment of the Permitted Leasehold Mortgage
 (which may only be to another Permitted Leasehold Mortgagee) or change in
 address of Leasehold Mortgagee, the assignee thereof or Leasehold Mortgagee,
 by Notice to Landlord, may change the address to which copies of Notices are
 to be sent as herein provided. All Notices and copies of Notices to be given
 to Leasehold Mortgagee as provided in this Article 26 shall be given in the
 same manner as is provided in this Restated Lease in respect of Notices to be
 given by Landlord or Tenant and shall be addressed to Leasehold Mortgagee in
 accordance with instructions given from time to time by Leasehold Mortgagee
 to Landlord and Tenant pursuant to Notice as provided in Section 26.1 hereof.


	
 

	
 


	
 

	
          26.2.3
 Performance of Lease by Leasehold Mortgagee. If Tenant defaults in respect of
 any provisions of this Restated Lease, Leasehold Mortgagee shall have the
 right, but not the obligation, to cure such Default whether same consists of
 the failure to pay Rent or the failure to perform any other matter or thing
 which Tenant is required to do or perform under this Restated Lease, and
 Landlord shall accept performance by or on behalf of Leasehold Mortgagee as
 though, and with the same effect as if, it had been done or performed by
 Tenant. Leasehold Mortgagee will have a period of time after the service of
 Notice of such Default upon it within which to cure or cause to be cured the
 Default specified in such Notice which period of time is the same period for
 cure, if any, as given to Tenant in respect of the specified Default after
 the giving of Notice of such Default to Tenant, plus (without waiving any
 late charges or default interest) an additional period of fifteen (15)
 Business Days in the case of a Material Monetary Default and a Non-Material
 Monetary Default and thirty (30) Business Days in the case of all
 Non-Monetary Defaults.


	
 

	
 


	
 

	
          26.2.4
 Possession by Leasehold Mortgagee. If, in order to cure any Non-Monetary
 Default by Tenant, Leasehold Mortgagee must have possession of or control
 over the Premises, such Non-Monetary Default will be deemed not to exist
 until Leasehold Mortgagee has had a reasonable opportunity to commence





72







	
 

	
 


	
 

	
and with
 reasonable diligence to complete foreclosure or take other appropriate
 actions to acquire possession of and control over the Premises, but upon the
 condition that Leasehold Mortgagee shall during the pendency of any such
 foreclosure or other proceedings pay or cause to be paid to Landlord, when
 and as it shall become due the Rent provided for in this Restated Lease and
 cure all other Non-Monetary Defaults which are reasonably susceptible of cure
 by Leasehold Mortgagee. Leasehold Mortgagee shall not be required to commence
 or continue any foreclosure or other proceedings or to obtain or continue
 possession of the Premises, except as specified above as a prerequisite for
 exercise or preservation of Leasehold Mortgagee’s rights and for Landlord’s
 delay in claiming a Non-Monetary Default.


	
 

	
 


	
 

	
          26.2.5
 Personal Defaults. Anything contained in this Section 26.2 to the contrary
 notwithstanding, any Non-Monetary Default of Tenant which is not reasonably
 susceptible of being cured by Leasehold Mortgagee even after Leasehold
 Mortgagee has obtained possession of and control over the Premises shall be
 deemed to have been waived by Landlord upon completion of foreclosure
 proceedings or when Leasehold Mortgagee, or its nominee or another shall
 otherwise acquire title to Tenant’s interest in this Restated Lease, provided
 that up through the time of such completion of acquisition of title, all
 Material Monetary Defaults, Non-Material Monetary Defaults and Non-Monetary Defaults
 reasonably susceptible of cure are cured in a timely manner. Any Non-Monetary
 Default which is reasonably susceptible of being cured after such completion
 or acquisition shall thereafter be cured with reasonable diligence.





                              26.3
Noncurable Non-Monetary Default. In case of a Non-Monetary Default which is not
susceptible of being cured by Leasehold Mortgagee without acquiring title to
the Premises, Leasehold Mortgagee shall institute and prosecute to completion
foreclosure proceedings or acquire Tenant’s estate hereunder, either in its own
name or through a nominee, by assignment in lieu of foreclosure. Leasehold
Mortgagee shall not be required to continue to prosecute foreclosure
proceedings if and when such Non-Monetary Default shall be cured. If Leasehold
Mortgagee, or its nominee, or a purchaser at a foreclosure sale, shall acquire
title to the Leasehold Estate, and shall cure all Non-Monetary Defaults of
Tenant hereunder which can be cured by Leasehold Mortgagee, or by said
purchaser, as the case may be, then the Non-Monetary Defaults of any prior
holder of Tenant’s Leasehold Estate hereunder which cannot be cured by
Leasehold Mortgagee (or by said purchaser), as are listed on Schedule 9, shall
no longer be deemed to be Non-Monetary Defaults hereunder, provided that up
through the time of such acquisition of title, all Material Monetary Defaults,
Non-Material Monetary Defaults and Non-Monetary Defaults reasonably susceptible
of cure are cured in a timely manner.


                              26.4
Delegation of Tenant’s Rights. Tenant may delegate irrevocably to Leasehold
Mortgagee the authority to exercise any or all of Tenant’s rights under this
Restated Lease, but no such delegation shall be binding upon Landlord unless
and until either Tenant or such empowered Leasehold Mortgagee shall deliver to
Landlord a signed counterpart of a written instrument effecting such
delegation. Such delegation of authority may be effected by the terms of the
Permitted Leasehold Mortgage itself, in which case the service upon Landlord of
an


73






executed
counterpart of said Permitted Leasehold Mortgage in accordance with this
Section 26.4, together with a written Notice from Tenant and Leasehold
Mortgagee specifying the provisions therein which delegate such authority to
said Leasehold Mortgagee, shall be sufficient to give Landlord Notice of such
delegation. Any provision of this Restated Lease which gives to Leasehold
Mortgagee the privilege of exercising a particular right of Tenant hereunder on
condition that Tenant shall have failed to exercise such right shall not be
deemed to diminish any privilege which Leasehold Mortgagee may have, by virtue
of a delegation of authority from Tenant, to exercise such right without regard
to whether or not Tenant shall have failed to exercise such right.


                              26.5
Assignment/Sale. Notwithstanding the terms and provisions of Article 16 hereof,
Leasehold Mortgagee or other acquirer of the Leasehold Estate pursuant to
foreclosure, assignment in lieu of foreclosure or other proceedings may, upon
acquiring Tenant’s Leasehold Estate, without further consent of Landlord, sell
and assign the Leasehold Estate on such terms and to such persons and
organizations as are acceptable to Leasehold Mortgagee or acquirer and
reasonably acceptable to Landlord, and thereafter be relieved of all
obligations arising under this Restated Lease subsequent to such sale or
assignment; provided that such assignee has delivered to Landlord its written
agreement to be bound by all of the provisions of this Restated Lease.
Notwithstanding Article 16 or any other provisions of this Restated Lease, any
sale of this Restated Lease and of the Leasehold Estate in any proceedings for
the foreclosure of a Permitted Leasehold Mortgage, or the assignment or
transfer of this Restated Lease and of the Leasehold Estate in lieu of the
foreclosure of such Permitted Leasehold Mortgage shall be deemed to be a
permitted sale, transfer or assignment of this Restated Lease and of the
Leasehold Estate.


	
 

	
 


	
 

	
26.6
 Termination of Lease; New Lease to Mortgagee.


	
 

	
 


	
 

	
          26.6.1
 If this Restated Lease shall terminate by reason of a Material Monetary
 Default of Tenant hereunder, Landlord shall give written Notice to Leasehold
 Mortgagee that this Restated Lease has been terminated, together with a
 statement of any and all sums which would at that time be due under this
 Restated Lease but for such termination, and of all other Defaults, if any,
 under this Restated Lease then known to Landlord. Leasehold Mortgagee, by
 written Notice to Landlord given within thirty (30) days of such termination,
 and provided it was precluded from curing such Material Monetary Default
 prior to the termination of this Restated Lease and has since cured all such
 Defaults other than those Non-Monetary Defaults which are not susceptible of
 cure by Leasehold Mortgagee, thereupon may request Landlord to enter into a
 new lease of the Premises pursuant to this Section, and Landlord shall enter
 into a new lease with Leasehold Mortgagee (or its nominee), within thirty
 (30) days after the giving of said written Notice by Leasehold Mortgagee.
 Said new lease shall commence and rent and all obligations of the Tenant
 under the new lease shall accrue, as of the date of termination of this
 Restated Lease. The term of said new lease shall continue for the period
 which would have constituted the remainder of the Term of this Restated Lease
 had this Restated Lease not been terminated and shall be upon all of the
 terms, covenants, conditions, conditional limitations, and agreements
 contained herein which were in force and effect immediately prior to the





74







	
 

	
 


	
 

	
termination
 of this Restated Lease. Said new lease, and this covenant, shall be superior
 to all rights, liens, and interests, other than those to which this Restated
 Lease shall have been subject immediately prior to termination and those
 matters to which this Restated Lease may, by its terms, become subject. The
 provisions of the immediately preceding sentence shall be self-executing, and
 Landlord shall have no obligation to do anything, other than to execute said
 new lease as herein provided, to assure to Leasehold Mortgagee or to the
 Tenant under the new lease good title to the leasehold estate granted
 thereby.


	
 

	
 


	
 

	
          26.6.2
 Leasehold Mortgagee shall, simultaneously with the delivery of the new lease,
 pay to Landlord (1) all Rent and other sums of money due under this Restated
 Lease on the date of termination of this Restated Lease and remaining unpaid;
 plus (2) all rent and other sums of money due under the new lease for the
 period from the date of commencement of the term thereof to the date of
 delivery of the new lease; plus (3) all costs and expenses, including Legal
 Costs, incurred by Landlord in connection with termination of this Restated
 Lease, the recovery of possession of the Premises, and the preparation,
 execution and delivery of said new lease. Simultaneously therewith, Landlord
 shall pay over to Leasehold Mortgagee any rentals, less costs and expenses of
 collection, received by Landlord between the date of termination of this
 Restated Lease and the date of execution of said new lease, from Subtenants
 or other occupants of the Premises which shall not theretofore have been
 applied by Landlord towards the payment of Rent or any other sum of money
 payable by Tenant hereunder or towards the cost of operating the Premises or
 performing the obligations of Tenant hereunder.


	
 

	
 


	
 

	
          26.6.3
 If Leasehold Mortgagee shall exercise its right to obtain a new lease
 pursuant to this Section 26.6, but Leasehold Mortgagee or its nominee shall
 fail to execute such a new lease when tendered by Landlord, or shall fail to
 comply timely with the other provisions of this subdivision, then said
 Leasehold Mortgagee shall have no further rights to a new lease or any other
 rights hereunder.





                              26.7
Landlord’s Right to Payment. Nothing in this Article shall be construed to
relieve Leasehold Mortgagee or its designee of the obligation to pay any
monetary amounts required to be paid under this Restated Lease by the Tenant to
the extent that Leasehold Mortgagee elects not to cancel this Restated Lease or
elects to enter into a new lease.


                              26.8
Rejection in Bankruptcy. If Tenant exercises any election to reject this
Restated Lease pursuant to the United States Bankruptcy Code, Leasehold
Mortgagee shall have the option to enter into a new lease pursuant to the terms
and conditions of Section 26.6.


                              26.9
Conflicts Among Leasehold Mortgagees. If more than one Leasehold Mortgagee
desires to exercise any rights or protections pursuant to this Article 26,
Landlord shall be required to recognize only the Leasehold Mortgagee whose
Permitted Leasehold Mortgage is senior in lien (as against the other Permitted
Leasehold Mortgage). Priority of Permitted Leasehold Mortgages shall be
conclusively evidenced by written agreement among the Leasehold Mortgagees or,
if the Leasehold Mortgagees cannot agree, a report or certificate of a title


75






insurance
company (reasonably acceptable to Landlord) licensed to do business in the
State of New York. Neither Tenant nor Landlord shall be obligated to determine
the relative priorities of any Leasehold Mortgages. No time period that applies
to any Leasehold Mortgagee’s exercise of any rights or protections shall be
tolled pending the determination of priority of Leasehold Mortgagees.


                              26.10
Limited Waiver. Notwithstanding any provision in this Restated Lease to the
contrary, under no circumstances shall Landlord be required to refrain from
exercising any of its rights hereunder if Leasehold Mortgagee has not cured an
Event of Default which (i) may expose Landlord to criminal or civil liability,
(ii) may materially jeopardize the value or ability to operate the Premises or
any material part thereof, (iii) may result in the termination of a Third Party
Lease, Fee Mortgage or other material agreement relating to the use or
occupancy of the Premises or (iv) creates a dangerous or unsafe condition at
the Premises. Notwithstanding the foregoing, nothing contained herein shall in
any way limit or affect the right of Leasehold Mortgagee or its nominee to
obtain a new lease pursuant to the provisions of Section 26.6 if this Restated
Lease is terminated pursuant to this Section.


                    27.
PERMITTED EXCEPTIONS. Landlord represents and warrants to Tenant that, as of
the date hereof, the Permitted Exceptions do not and would not have a material
adverse effect on the value of the Premises taken as a whole.


                    28.
SINGLE LEASE. Tenant hereby acknowledges that the agreement between Landlord
and Tenant to treat this as single lease in all respects, was and is of primary
importance to Landlord, and Landlord would not have entered into this Restated
Lease without there being such an agreement and such treatment of this Restated
Lease. All rights and obligations under this Restated Lease relating to the
Premises shall apply to all Properties and any Default under this Restated
Lease pertaining to a single or to multiple Properties shall be an Event of
Default pertaining to the Premises. Without limiting the generality of the
foregoing, the parties hereto acknowledge that this Restated Lease constitutes
a single lease of the Premises and is not divisible notwithstanding any
references herein to any individual Property and notwithstanding the
possibility that certain individual Properties may be deleted herefrom pursuant
to the express provisions of Article 13, 14, 15, 22 and 25 of this Restated
Lease under certain limited circumstances. The parties hereto expressly intend
that this Restated Lease, notwithstanding the possibility that certain
individual Properties may be deleted herefrom under certain limited
circumstances expressly provided for in Article 13, 14, 15, 22 and 25 of this
Restated Lease, be treated as a single lease for all purposes whatsoever,
including, without limitation, Renewal Options, Permitted Leasehold Mortgages,
any assignment of the Leasehold Estate by Tenant (as approved by Landlord), and
in the context of Tenant’s attempted rejection, assumption and/or assignment of
this Restated Lease in any bankruptcy or other insolvency proceeding affecting
Tenant, in which case the parties hereto intend for such rejection to terminate
this Restated Lease with respect to all but not less than all of the Premises
or such assumption to apply with respect to the Premises, i.e. all but not less
than all of the Properties. This Restated Lease does not constitute, and may
not be enforced or treated as, a separate lease for any individual Property.


76






                    29.
REPORTING.


                              29.1
Property-Level Reporting. Tenant shall, as soon as practicable, and in any event
within sixty (60) days after the end of each fiscal quarter, furnish to
Landlord and any Fee Mortgagee a profit and loss statement for each of the
Properties as of and for the quarterly period then ended and for the year to
date, certified by Tenant through one of its executive officers.
Notwithstanding the foregoing, if (a) any such Properties are subject to the
tenancy of a lessee-dealer and (b) such profit and loss statements are not
reasonably available to Tenant with respect to such Properties, then Tenant
shall, as soon as practicable, and in any event within sixty (60) days after
the end of each fiscal quarter, instead furnish to Landlord and any Fee
Mortgagee a statement that sets forth (i) the volume of gas sales in gallons,
(ii) inside store sales for those Properties where percentage rents are
required under Third Party Leases and at all other Properties to the extent
available to Tenant, (iii) itemized expenses to the extent available to Tenant
and (iv) rental and other income received with respect to such Property as and
for the quarterly period then ended and year to date, prepared in accordance
with GAAP, consistently applied, and certified by Tenant through one of its
executive officers.


                              29.2
Tenant Reporting. Tenant shall deliver to Landlord, for Landlord’s information,
Tenant’s financial information (a) if and when publicly available pursuant to
the reporting requirements of any jurisdiction, in the form made publicly
available pursuant to such reporting requirements or (b) if not publicly
available, within 150 days after the end of each fiscal year, consisting of
Tenant’s balance sheet, income statement and statement of changes in cash flow,
in either case prepared in accordance with GAAP, consistently applied. In the
event that such financial information provided pursuant to clause (b) above has
been certified by an independent certified public accountant, at the time
Tenant delivers its financial information pursuant to the preceding sentence,
Tenant shall also deliver to Landlord a copy of such certified financial
information. If such financial information is not so certified, it shall be
certified by Tenant through one of its executive officers. With respect to any
information that is not publicly available, Landlord agrees to keep such
financial information strictly confidential. Notwithstanding the foregoing,
Landlord may use or disclose such financial information to any bank or other
financial institution that is considering providing financing to Landlord,
provided that (i) Landlord provides Tenant with reasonable advanced Notice of
the identity of the financial institution it plans to provide with such
financial information, (ii) such financial institution agrees to keep such
information confidential, and (iii) in Tenant’s reasonable judgment, such
financial institution is not in competition with Tenant.


                    30.
REPRESENTATIONS, WARRANTIES AND COVENANTS.


                              30.1
Landlord’s Representations, Warranties and Covenants. To induce Tenant to enter
into this Restated Lease and to lease the Premises, and to pay the Rent
hereunder, Landlord hereby makes the following representations, warranties and
covenants with respect to the Premises as of the date hereof, upon each of which,
together with the representation contained in Section 9.3, Landlord
acknowledges and agrees that Tenant is entitled to rely and has relied:


	
 

	
 


	
 

	
          30.1.1
 Organization and Power. Landlord is a corporation duly organized, validly
 existing and in good standing under the laws of the State of





77







	
 

	
 


	
 

	
Delaware and
 is qualified to transact business in all jurisdictions where such
 qualification is necessary to comply with its obligations under this Restated
 Lease and has all requisite powers and all material governmental licenses,
 authorizations, consents and approvals to carry on its business as now
 conducted and to enter into and perform its obligations hereunder and under
 any document or instrument required to be executed and delivered on behalf of
 Landlord hereunder.


	
 

	
 


	
 

	
          30.1.2
 Authorization, Execution and Delivery. This Restated Lease has been duly
 authorized by all necessary action on the part of Landlord, has been duly
 executed and delivered by Landlord, constitutes the valid and binding
 agreement of Landlord and is enforceable in accordance with its terms except
 to the extent that enforcement hereof may be limited by (a) bankruptcy,
 reorganization, moratorium, fraudulent conveyance, or similar laws now or
 hereafter in effect relating to creditors’ rights generally, and (b) general
 principles of equity (regardless of whether enforceability is considered in a
 proceeding at law or in equity).


	
 

	
 


	
 

	
          30.1.3
 Non-contravention. The execution and delivery of, and the performance by Landlord
 of its obligations under, this Restated Lease do not and will not contravene,
 or constitute a default under, any provision of (i) the current articles of
 incorporation and bylaws of Landlord including and all amendments thereto
 (the “Landlord’s Organizational Documents”) true and complete copies of which
 have been delivered to Tenant prior to the execution of this Restated Lease,
 or (ii) Laws or any agreement, judgment, injunction, order, decree or other
 instrument binding upon Landlord or to which the Premises is subject, the
 result of which could have a material adverse effect on the value of the
 Premises or Landlord’s ability to lease the Premises to Tenant and/or
 Landlord’s ability to perform its obligations under this Restated Lease.


	
 

	
 


	
 

	
          30.1.4
 Compliance with Existing Laws. To the best of Landlord’s knowledge, Landlord
 has not received any written notice of violation of any Law from any
 Government with respect to any Property which would be reasonably expected to
 have a materially adverse effect on the value of such Property or the conduct
 of Tenant’s business thereof, except as set forth on Schedule 6, some of
 which may not have such a materially adverse effect.


	
 

	
 


	
 

	
          30.1.5
 Intentionally Omitted.


	
 

	
 


	
 

	
          30.1.6
 Condemnation Proceedings. To the knowledge of Landlord, there is not pending
 any Condemnation with respect to a Property involving payments likely to be
 in excess of $100,000, except as set forth on Exhibit L.


	
 

	
 


	
 

	
          30.1.7
 Actions or Proceedings. To the best of Landlord’s knowledge, there is no
 action, suit or proceeding pending against or affecting Landlord or any
 Property, which, if determined adversely to Landlord, would have a material





78







	
 

	
 


	
 

	
adverse
 effect on the value of such Property or the conduct of Tenant’s business
 thereat, except as set forth in Schedule 14, Schedule 6 and Exhibit L.


	
 

	
 


	
 

	
          30.1.8
 Title to Premises. Landlord holds good and marketable fee or leasehold title,
 as applicable, to the Premises, subject to the Permitted Exceptions.


	
 

	
 


	
 

	
          30.1.9
 Title to Personal Property. None of the Personal Property located on the
 Premises is owned by Landlord.


	
 

	
 


	
 

	
          30.1.10
 Title to Improvements. All Improvements located on the Premises are owned by
 Landlord, the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor,
 or a Third Party Lessor, except to the extent included as “Fixed Assets” on
 Tenant’s balance sheet as of the date hereof.


	
 

	
 


	
 

	
          30.1.11
 Third Party Lease Box. There are no Third Party Leases in effect with respect
 to any of the Properties other than the Third Party Leases listed on Exhibit
 H. To the best of Landlord’s knowledge, true, complete and correct copies of
 substantially all of the Third Party Leases have been made available to Tenant
 by Landlord prior to the date hereof. On or prior to the Restatement
 Effective Date, Landlord shall deliver to Tenant true, complete and correct
 copies of all Third Party Leases and shall furnish Tenant with a certificate
 of Landlord certifying that it has so delivered the Third Party Leases (the
 “Lease Box Certificate”). If the Lease Box Certificate is untrue, then under
 no circumstances may Landlord declare a Default under this Restated Lease by
 reason of Tenant’s failure to comply with any Third Party Lease resulting
 from any such a breach of the Lease Box Certificate (a “Lease Box Breach”),
 which default did not otherwise constitute a default under this Restated
 Lease and (i) if as a result of such Lease Box Breach, the Third Party Lease
 is terminated, Tenant shall be entitled to Lease Termination Damages, and the
 applicable Property shall be deleted from this Restated Lease, Fixed Rent
 shall be adjusted in accordance with the Fixed Rent Adjustment Procedures,
 and the amounts held pursuant to this Restated Lease on account of advanced
 Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly,
 or (ii) if, as a result of any such Lease Box Breach, Tenant suffers any
 damages, losses or expenses, Landlord shall Indemnify Tenant therefor.


	
 

	
 


	
 

	
          30.1.12
 Third Party Leases. To the best of Landlord’s knowledge, each of the Third
 Party Leases is valid and subsisting and in full force and effect in
 accordance with its terms and constitutes the legal, valid, binding and
 enforceable obligation of the parties thereunder, subject to general
 principles of equity and laws relating to bankruptcy, reorganization,
 moratorium, fraudulent conveyance, or similar laws now or hereafter in effect
 relating to creditors’ rights generally. To the best of Landlord’s knowledge,
 (a) Landlord has not received any written notice of default with respect to
 any Third Party Lease from any Third Party Lessor, which default remains
 uncured as of the date hereof, except as set forth in the last item of
 Schedule 14, and (b) neither a Third Party Lessor nor Landlord is in default
 of any of its material obligations under a Third Party Lease.





79







	
 

	
 


	
 

	
          30.1.13
 Third Party Lease Renewals. Set forth on Schedule 15 is a list of each
 Property subject to a Third Party Lease for which Landlord has recently
 exercised its option to renew the applicable Third Party Lease.


	
 

	
 


	
 

	
          30.1.14
 Related Party Leases.


	
 

	
 


	
 

	
          (a)
 Power Test Leases. There are no Power Test Leases in effect with respect to
 any of the Properties other than the Power Test Leases listed on Exhibit G.
 True, complete and correct copies of certain Power Test Leases have been made
 available to Tenant by Landlord prior to the date hereof. Those Power Test
 Leases which have not been made available to Tenant by Landlord prior to the
 date hereof are substantially identical in all material respects to the Power
 Test Leases that have been made available to Tenant, except with respect to
 the location and rent. Each of the Power Test Leases is valid and subsisting
 and in full force and effect in accordance with its terms and constitutes the
 legal, valid, binding and enforceable obligation of the parties thereunder,
 subject to general principles of equity and laws relating to bankruptcy,
 reorganization, moratorium, fraudulent conveyance, or similar laws now or
 hereafter in effect relating to creditors’ rights generally. Landlord has not
 received any written notice of default with respect to any Power Test Lease
 from any Power Test Lessor, which default remains uncured as of the date
 hereof, and neither Landlord nor the Power Test Lessor is in default of any
 of its obligations under a Power Test Lease.


	
 

	
 


	
 

	
          (b)
 Leemilt’s Lease. There is no Leemilt’s Lease in effect with respect to any
 Properties other than the Leemilt’s Lease. A true, complete and correct copy
 of the Leemilt’s Lease referred to in clause (i) of the definition of
 “Leemilt’s Lease” has been made available to Tenant by Landlord prior to the
 date hereof. The Leemilt’s Lease is valid and subsisting and in full force
 and effect in accordance with its terms and constitutes the legal, valid,
 binding and enforceable obligation of the parties thereunder, subject to
 general principles of equity and laws relating to bankruptcy, reorganization,
 moratorium, fraudulent conveyance, or similar laws now or hereafter in effect
 relating to creditors’ rights generally. Landlord has not received any
 written notice of default with respect to the Leemilt’s Lease from the
 Leemilt’s Lessor, which default remains uncured as of the date hereof, and
 neither Landlord nor the Leemilt’s Lessor is in default of any of its
 obligations under the Leemilt’s Lease.


	
 

	
 


	
 

	
          (c)
 Gettymart Lease. There is no lease in effect with respect to any of the
 Properties owned by the Gettymart Lessor other an oral lease agreement
 between the Gettymart Lessor or an Affiliate of the Gettymart Lessor, as
 lessor, and Landlord, as lessee (the “Original Gettymart Lease”). The
 Original Gettymart Lease is valid and subsisting and in full force and effect
 in accordance with its terms and constitutes the legal, valid, binding and
 enforceable obligation of the parties thereunder, subject to general
 principles of equity and laws relating to bankruptcy, reorganization,
 moratorium, fraudulent conveyance, or similar laws now or hereafter in effect
 relating to creditors’ rights generally. Landlord has not





80







	
 

	
 


	
 

	
received any
 written notice of default with respect to the Original Gettymart Lease from
 Lessor, which default remains uncured as of the date hereof, and neither
 Landlord nor the Lessor is in default of any of its obligations under the
 Original Gettymart Lease.


	
 

	
 


	
 

	
          
 30.1.15 Real Estate Taxes. All Real Estate Taxes due and payable from the
 Commencement Date through to the date hereof have been paid.


	
 

	
 


	
 

	
          30.1.16
 Insurance Requirements. If Tenant complies with the insurance requirements
 contained in this Restated Lease, Landlord will not be in default under any
 Third Party Lease, the Leemilt’s Lease, the Gettymart Lease or any Power Test
 Lease with respect to the insurance requirements contained therein.


	
 

	
 


	
 

	
          30.1.17
 Fee Mortgages. The Fee Mortgages encumbering the Leemilt’s Lessor’s interest
 in the Fee Estate are as set forth on Exhibit I, and Fee Mortgages encumbering
 the Power Test Lessor’s interest in the Fee Estate are as set forth on
 Exhibit M.


	
 

	
 


	
                               30.2
 Tenant’s Representations And Warranties. To induce Landlord to enter into
 this Restated Lease and to lease the Premises to Tenant, Tenant hereby makes
 the following representations and warranties, upon each of which Tenant
 acknowledges and agrees that Landlord is entitled to rely and has relied:


	
 

	
 


	
 

	
          30.2.1
 Organization and Power. Tenant is a corporation duly organized, validly
 existing and in good standing under the laws of the State of Maryland, and is
 qualified to transact business in all jurisdictions where such qualification
 is necessary to comply with its obligations under this Restated Lease and has
 all requisite powers and all material governmental licenses, authorizations,
 consents and approvals required to carry on its business as now conducted and
 to enter into and perform its obligations under this Restated Lease and any
 document or instrument required to be executed and delivered on behalf of
 Tenant hereunder.


	
 

	
 


	
 

	
          30.2.2
 Authorization, Execution and Delivery. This Restated Lease has been duly
 authorized by all necessary action on the part of Tenant, has been duly
 executed and delivered by Tenant, constitutes the valid and binding agreement
 of Tenant and is enforceable in accordance with its terms except to the
 extent that enforcement hereof may be limited by (a) bankruptcy,
 reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter
 in effect relating to creditors’ rights generally, and (b) general principals
 of equity (regardless of whether enforceability is considered in a proceeding
 at law or in equity).


	
 

	
 


	
 

	
          30.2.3
 Non-contravention. The execution and delivery of, and the performance by
 Tenant of its obligations under, this Restated Lease do not and will not
 contravene, or constitute a default under, any provision of (i) the current
 articles of incorporation and bylaws of Tenant including and all amendments
 thereto (the “Tenant’s Organizational Documents”) true and complete copies of





81






	
 

	
 


	
 

	
which have
 been delivered to Landlord prior to the execution of this Restated Lease, or
 (ii) Laws or any agreement, judgment, injunction, order, decree or other
 instrument binding upon Tenant or to which the Premises is subject, the
 result of which could have a material adverse effect on the value of the
 Premises or Tenant’s ability to lease the Premises from Landlord and/or
 Tenant’s ability to perform its obligations under this Restated Lease.





                              30.3
Survival. No representations, warranties or covenants contained in this Article
30, including any rights arising out of any breach of such representation,
warranty or covenant, shall in any event survive after the sixth (6th)
anniversary of the Restatement Effective Date.


                    31.
LANDLORD DEFAULT.


                              31.1
Landlord Default. If Landlord shall fail to perform or observe (a) any covenant
or obligation required to be performed by Landlord hereunder or (b) any
obligation of Landlord, under any Third Party Lease, any Power Test Lease, the
Leemilt’s Lease, the Gettymart Lease or Fee Mortgage the performance or
observance of which is not Tenant’s obligation hereunder, and any such Default
referred to in clause (a) or (b) shall continue for (x) with respect to a
monetary Default a period of ten (10) Business Days after Notice thereof from
Tenant and (y) with respect to a non-monetary Default, thirty (30) Business
Days after Notice thereof from Tenant or such longer period as may be
reasonable under the circumstances, then upon Landlord’s receipt of a second
Notice from Tenant with respect to such Default, a “Landlord Default” shall be
deemed to have occurred hereunder. Upon the occurrence of any such Landlord
Default, Tenant shall have the right, but not the obligation, to make such
payment or perform such act on Landlord’s part that gave rise to such Landlord
Default. In the event that a court of competent jurisdiction enters a final,
non-appealable judgment or order confirming the occurrence of any such Landlord
Default and allowing Tenant to recover the costs incurred by Tenant in curing
such Landlord Default, then Tenant shall have the right to offset against any
payment of Fixed Rent due hereunder an amount equal to the damages suffered by
Tenant as a result of such Landlord Default, as set forth in such final order
or judgement. In the event that Tenant elects to offset any amount against
Fixed Rent in accordance with this Section 31.1, Tenant shall give Landlord
Notice of such election to offset at least twenty (20) days prior to effecting
the same, which Notice shall include the amount of damages set forth in such
final order or judgment, the amount that Tenant plans to offset, and the timing
of such offset. Nothing contained in this Section shall be deemed to limit
Tenant’s right to offset Rent pursuant to the express provisions of Section
3.5. Anything to the contrary contained herein notwithstanding, in no event
shall a Landlord Default shall be deemed to occur if such Default or alleged
Default arises either directly or indirectly from the acts or omissions of
Tenant, Subtenant or their respective agents, contractors, employees, licensees
or invitees.


                              31.2
Dispute. If Landlord shall in good faith dispute the occurrence of any Landlord
Default and Landlord, before the expiration of the applicable cure period,
shall give Notice thereof to Tenant, setting forth, in reasonable detail, the
basis therefor, no Landlord Default shall be deemed to have occurred and
Landlord shall have no obligation with respect thereto until final,
non-appealable adverse determination thereof; provided, however, that in the


82






event of any
such adverse determination, Landlord shall pay to Tenant interest on any
disputed funds at an interest rate equal to six (6) percent per annum, from the
date of demand for such funds was made by Tenant until the date of payment. If
Tenant and Landlord shall fail, in good faith, to resolve any such dispute
within ten (10) days after Landlord’s Notice of dispute, either may submit the
matter for resolution to a court of competent jurisdiction.


                    32.
MISCELLANEOUS.


                              32.1
Force Majeure. Each party’s obligation to perform or observe any term,
condition, covenant or agreement on such party’s part to be performed or
observed pursuant to this Restated Lease (other than any obligation to pay
money when due) shall be suspended during such time as such performance or
observance is prevented or delayed by reason of any Unavoidable Delay.


                              32.2
Performance Under Protest. If a dispute arises regarding performance of any
obligation under this Restated Lease, the party against which such obligation
is asserted shall have the right to perform it under protest, which shall not
be regarded as voluntary performance. A party that shall have performed under
protest shall have the right to institute appropriate proceedings to recover
any amount paid or the reasonable cost of otherwise complying with any such
obligation, together with interest at the Prime Rate on funds expended.


                              32.3
Legal Costs, Generally. If either party prevails in any litigation or other
dispute relating to the enforcement or interpretation of this Restated Lease or
arising from this Restated Lease, a Power Test Lease, the Leemilt’s Lease, the
Gettymart Lease, a Third Party Lease, or the landlord/tenant relationship under
this Lease (as determined by the judge presiding over such litigation or
dispute), then the losing party shall promptly after Notice (accompanied by
reasonable backup documentation), reimburse the prevailing party’s Legal Costs
incurred in such litigation or other dispute. In addition, Tenant shall
promptly after Notice (accompanied by reasonable backup documentation),
reimburse Landlord’s Legal Costs and other actual, out-of-pocket expenses
incurred by Landlord in exercising Landlord’s remedies against Tenant upon an
Event of Default under this Restated Lease or pursuant to and in any proceeding
under the federal bankruptcy code or similar statute affecting Tenant.


                              32.4
Access. Except as expressly provided in Section 9.1 of this Restated Lease,
Landlord and its agents, representatives and designees shall have the right to
enter any Property upon reasonable notice to Tenant during regular business
hours (which notice shall, except in the case of emergencies, be given at least
forty-eight (48) hours prior to any such entry), and in accordance with
Tenant’s reasonable instructions, for the purpose of complying with Landlord’s
specific obligations pursuant to this Restated Lease and for the purpose of
curing Tenant’s defaults of which Landlord shall have given Tenant prior Notice
or to exhibit the Premises in connection with the mortgaging or sale of the Fee
Estate in compliance with this Restated Lease. Except as expressly provided in
Section 9.1 of this Restated Lease, in entering any Property pursuant to this
Section, Landlord and its designees shall use reasonable efforts not to
interfere with the conduct of operations on such Property by Tenant or anyone
claiming through Tenant, and shall comply with Tenant’s reasonable
instructions. Except as expressly provided in Section 9.1 of this Restated
Lease, Landlord shall Indemnify Tenant against any


83






claims arising
from Landlord’s entry upon any Property pursuant to this Section or any other
provision of this Restated Lease permitting Landlord to enter any Property
(except upon termination of this Restated Lease).


                              32.5
Vault Space. Any vaults and other areas now existing or subsequently built
extending beyond the building line of any Property are not included within the
Premises, but Tenant may occupy and use the same during the Term, subject to
applicable Laws and payment of all applicable Impositions. No revocation by any
Government of any license or permit to maintain and use any such vaults shall
in any way affect this Restated Lease or the Rent due and owing hereunder.


                              32.6
No Third Party Beneficiaries. Nothing in this Restated Lease shall be deemed to
confer upon any person (other than Landlord, Tenant, Third Party Lessors, the
Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor, Fee Mortgagees
or Leasehold Mortgagee) any right to insist upon, or to enforce against
Landlord or Tenant, the performance or observance by either party of its
obligations under this Restated Lease.


                              32.7
Amendment; Amendment of Other Agreements. Any modification or amendment to this
Restated Lease must be in writing signed by Landlord and Tenant. Landlord and
Tenant shall not modify or amend this Restated Lease in any way during the
period of time beginning on the date hereof and ending on the occurrence of the
Restatement Effective Date (such period of time being referred to hereinafter
as the “Gap Period”) without the consent of Lukoil USA (as defined
hereinafter), which consent shall not be unreasonably withheld. Landlord shall
not modify or amend or allow to be modified or amended any Third Party Lease,
any Power Test Lease, the Leemilt’s Lease or the Gettymart Lease in any way
during the Gap Period or at any time thereafter without the consent of Tenant,
which consent shall not be unreasonably withheld. Notwithstanding anything to
the contrary contained herein, to the extent that any such proposed amendment
or modification would decrease Tenant’s rights or increase Tenant’s obligations
hereunder (except by a de minimis amount), Lukoil USA or Tenant, as applicable,
may withhold its consent in its sole and absolute discretion.


                              32.8
Partial Invalidity. If any term or provision of this Restated Lease or the
application of such term or provision to any party or circumstance shall to any
extent be invalid or unenforceable, then the remainder of this Restated Lease,
or the application of such term or provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected by
such invalidity. All remaining provisions of this Restated Lease shall be valid
and be enforced to the fullest extent permitted by law.


                              32.9
Successors and Assigns. This Restated Lease shall bind and benefit Landlord and
Tenant and their successors and assigns, but this shall not limit or supersede
any transfer or similar restrictions contained in this Restated Lease.


                              32.10
Recording. At the request of Tenant, Landlord and Tenant will execute for purposes
of recordation in the appropriate recording office a memorandum or short form
of this Restated Lease containing (a) the names of the parties, (b) a
description of the Premises, (c) the term of this Restated Lease, (d) a
statement to the effect that the Related Lease


84






is a single
lease demising the entire Premises and may not be severed, bifurcated, divided
or otherwise split in any manner whatsoever, (e) a statement to the effect that
any transferee of Landlord’s interest in a Property must enter into a
Transferee Lease with Tenant, and (f) such other provisions as either party may
reasonably require. The cost and expenses of recording the memorandum or short
form of this Restated Lease shall be borne by Landlord or Tenant as set forth
in the Transfer Tax Agreement. Each party agrees that it will not record this
Restated Lease in its entirety unless such a recording is required to protect
the rights of Landlord and Tenant hereunder or applicable law. The aforesaid
memorandum of lease shall be executed and recorded promptly after a form is
prepared and delivered by the requesting party to the other party, which form
is reasonably acceptable to the other party. Landlord shall not grant or record
any interest in or encumbrance upon the fee title to the Premises from the date
hereof until such time as the memorandum of this Restated Lease is recorded. If
a new lease is executed pursuant to Section 26.6, the priority thereof shall be
the same recording priority accorded to the aforesaid memorandum of this
Restated Lease, which shall contain a provision referencing the provisions of
Section 26.6. If requested by the tenant under such new lease, Landlord will
execute for recording a memorandum of the new lease and the holders or
trustees, as the case may be, of any fee mortgage or deed of trust applicable
to the Premises shall execute for recordation a subordination of the recording
priority of their interest to the interest of the tenant under the memorandum
of the new lease. Simultaneously with the execution and delivery of such
memorandum, Landlord and Tenant will execute and deliver to Latham &
Watkins a termination of each such memorandum, in recordable form, which Latham
& Watkins shall deliver to Landlord upon receipt from Landlord of a notice
that this Restated Lease has been terminated with respect to the Premises or
with respect to an individual Property under the specific, limited
circumstances provided for in this Restated Lease.


                              32.11
Consequential Damages.


                              Notwithstanding
anything to the contrary set forth herein, including without limitation Section
18.3.2, in no event shall any party hereto have any liability whatsoever for
any consequential damages arising from or allegedly arising from the actions or
omissions of any such party.


                    33.
INTERPRETATION; EXECUTION AND APPLICATION OF RESTATED LEASE.


                              33.1
Governing Law. This Restated Lease and its interpretation and performance shall
be governed, construed and regulated by the laws of the State of New York,
without regard to principles of conflict of laws.


                              33.2
Submission to Jurisdiction. Each of Landlord and Tenant hereby submits to the
exclusive jurisdiction of the United Stated District Court for the Southern
District of New York for purposes of all legal proceedings arising out of or
relating to this Restated Lease and the estates and relationships created
hereby. If the parties hereto are unable to submit to the jurisdiction of the
United States District Court for the Southern District of New York
notwithstanding reasonably diligent efforts to do so, then Landlord and Tenant
shall submit to the exclusive jurisdiction of any New York State court sitting
in New York County, New York.


85






Each of
Landlord and Tenant hereby irrevocably waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceedings brought in any such court and any claim
that any such proceeding brought in any such court has been brought in an
inconvenient forum.


                              33.3
Agent for Service of Process. Tenant hereby irrevocably names and designates
each of (i) Lukoil Americas Corporation, a Delaware corporation whose address
is 540 Madison Avenue, New York, New York 10022 (“Lukoil USA”), and (ii) CT
Corporation, 111 Eighth Avenue, New York, New York 10011, as Tenant’s agent
(either of the entities referred to in clause (i) or (ii) being referred to
hereinafter as Tenant’s “Agent”) for service of process, including all notices
required to institute any proceeding in any court or in any other way required
to confer personal jurisdiction over Tenant in any court, and for the receipt
of any Notices or other communications required under this Restated Lease,
including personal demands for Rent, and any and all other Notices under this
Restated Lease issued for the purpose of demanding compliance with this
Restated Lease. Service or demand upon either Agent shall be good and
sufficient service and demand upon Tenant for all purposes, including, without
limitation, the purpose of obtaining personal jurisdiction over Tenant for any
legal action or proceeding or for the purpose of commencing any proceeding.
Tenant agrees to take any and all action necessary to continue each Agent’s
designation in full force and effect. If either Agent becomes unable to act as
Agent for any reason then Tenant shall forthwith irrevocably designate a
replacement Agent satisfying the requirements of this Section that would apply
to any replacement Agent, as set forth in the next sentence. By Notice to
Landlord (but no more frequently than once every six months), Tenant may
substitute in place of either Agent any other Person having full-time business
offices and a street address in Manhattan. Tenant agrees that delivery of any
Notice to either Agent, or any service of process upon either Agent, in
accordance with the notice requirements of this Restated Lease, shall constitute
valid and effective personal service upon Tenant. Any such Notice or service of
process shall be effective in accordance with the provisions of this Restated
Lease relating to Notices. Any failure of either Agent to give any notice of
such service of process or Notice to Tenant shall not impair or affect the
validity of such Notice, service of process, or any judgment rendered in any
proceeding based thereon.


                              33.4
Counterparts. This Restated Lease may be executed in counterparts.


                              33.5
Reasonableness. Wherever this Restated Lease grants to either party the right
to consent to or approve of any matter, whether or not this Restated Lease
states that such approval or consent shall not be unreasonably withheld: (a)
such approval or consent shall not be unreasonably withheld, delayed or
conditioned; and (b) no withholding of approval or consent shall be deemed
reasonable unless withheld by Notice specifying reasonable grounds, in
reasonable detail, for such withholding of approval, and indicating specific
reasonable changes in the proposal under consideration that would cause such
proposal to be acceptable. Anything to the contrary contained hereunder
notwithstanding, in the event that Tenant requests Landlord’s approval or
consent of any specific matter with respect to which specific matter Landlord
or Tenant must also obtain the approval or consent of a Third Party Lessor and
any such Third Party Lessor refuses to grant its approval or consent, then Landlord’s
refusal to grant its approval or consent shall be deemed reasonably withheld,
delayed and/or conditioned. The foregoing agreement is not intended to imply
that it would be reasonable or unreasonable for Landlord to


86






withhold its
approval or consent to any specific request made by Tenant if a Fee Mortgagee
withholds its approval or consent with respect to such specific request.


                              33.6
Interpretation. No inference in favor of or against any party shall be drawn
from the fact that such party has drafted any portion of this Restated Lease.
The parties have both participated substantially in the negotiation, drafting
and revision of this Restated Lease with representation by counsel and such
other advisers as they have deemed appropriate. The words “include” and
“including” shall be construed to be followed by the words: “without
limitation.”


                              33.7
Delivery of Drafts. Neither Landlord nor Tenant shall be bound by this Restated
Lease unless and until each party shall have executed at least one counterpart
of this Restated Lease and delivered such executed counterpart to the other
party. The submission of draft(s) of this Restated Lease or comment(s) on such
drafts shall not bind either party in any way and such draft(s) and comment(s)
shall not be considered in interpreting this Restated Lease.


                              33.8
Captions. The captions of this Restated Lease are for convenience and reference
only and in no way affect this Restated Lease.


                              33.9
Restatement Effective Date; Outside Date. Notwithstanding anything to the contrary contained in this Restated Lease, in
the event that the Restatement Effective Date has not occurred by January 28,
2001, this Restated Lease shall automatically become null, void and of no force
and effect, and the Original Lease shall continue to be in full force and
effect.


                              33.10
Restatement Effective Date; Estoppel Certificate; Representations. Upon the occurrence
of the Restatement Effective Date, Landlord shall deliver to Tenant (i) an
Estoppel Certificate, which Estoppel Certificate shall provide, among other
things, that, to the best of Landlord’s knowledge, neither Landlord nor Tenant
has committed any default under the Original Lease as of the Restatement
Effective Date; (ii) a certificate reaffirming that, in all material respects,
the statements made in Sections 30.1.1, 30.1.2, 30.1.3, 30.1.8, 30.1.9,
30.1.10, 30.1.12, 30.1.14, 30.1.15, 30.1.16, and 30.1.17 of this Restated Lease
are true and correct as of the Restatement Effective Date and as though made on
the Restatement Effective Date, except that the representation contained in
Section 30.1.17 shall be deemed modified to add to the end of such Section the
following: “, except to the extent the Fleet Mortgage shall have been
refinanced during the Gap Period”; and (iii) a certificate containing
representations as of the Restatement Effective Date substantially identical to
those contained in Sections 30.1.4, 30.1.6, 30.1.7, and 30.1.13, except that
the Exhibits and Schedules referred to in such Sections shall, for the purposes
of such certificate, contain such modifications or amendments as may be
necessary to cause the representations contained in such certificate to be true
and correct as of the Restatement Effective Date. Upon the occurrence of the
Restatement Effective Date, Tenant shall deliver to Landlord a certificate
reaffirming that, in all material respects, the statements made in Sections 30.2.1,
30.2.2, and 30.2.3 of this Restated Lease are true and correct as of the
Restatement Effective Date and as though made on the Restatement Effective
Date.


                              33.11
Entire Agreement; Other Agreements. This Restated Lease contains all the terms,
covenants and conditions relating to Tenant’s leasing of the Premises from and
after the Restatement Effective Date. There are no separate understandings or
agreements,


87






oral or
written, between Landlord and Tenant relating to the Premises or Tenant’s use
or occupancy of the Premises from and after the Restatement Effective Date,
except for the Distribution Agreement, the Environmental Agreement, the
Transfer Tax Agreement, the Personal Property Letter, and solely to the extent
it relates to the Royalty Fee, the License Agreement. In the event that there
is any conflict between the terms and conditions of this Restated Lease and the
Environmental Agreement and the terms and conditions of the Distribution
Agreement, the terms and conditions of this Restated Lease and the
Environmental Agreement shall control.


88






                              IN
WITNESS WHEREOF, Landlord and Tenant have duly executed this Restated Lease on
the day and year first above written.


	
 

	
 

	
 

	
 


	
 

	
LANDLORD:


	
 

	
 

	
 

	
 


	
 

	
GETTY
 PROPERTIES CORP.


	
 

	
(f/k/a Getty
 Realty Corp.)


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ John
 Fitteron


	
 

	
 

	



	
 

	
 

	
Name: 

	
John
 Fitteron


	
 

	
 

	
Its:

	
 Senior Vice
 President


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
GETTYMART
 INC., as lessee of a Third Party


	
 

	
Lease to
 some of the Properties, hereby


	
 

	
consents to
 this Restated Lease.


	
 

	
 

	
 

	
 


	
 

	
GETTYMART
 INC.


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ John
 Fitteron


	
 

	
 

	



	
 

	
 

	
 

	
 


	
 

	
TENANT:


	
 

	
 

	
 

	
 


	
 

	
GETTY
 PETROLEUM MARKETING INC.


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ Vincent
 DeLaurentis


	
 

	
 

	



	
 

	
 

	
Name: 

	
Vincent
 DeLaurentis


	
 

	
 

	
Its:

	
 President
 and Chief Operating Officer


	
 

	
 

	
 

	
 


	
 

	
KINGSTON OIL
 SUPPLY CORP., with respect to


	
 

	
certain
 Properties located in the Mid-Hudson


	
 

	
Valley as
 set forth on Exhibit H hereto.


	
 

	
 

	
 

	
 


	
 

	
KINGSTON OIL
 SUPPLY CORP.


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ Vincent
 DeLaurentis


	
 

	
 

	






S-1






	
 

	
 

	
 

	
 


	
 

	
GETTY
 TERMINALS CORP., with respect to


	
 

	
certain
 Petroleum Terminal Properties.


	
 

	
 

	
 

	
 


	
 

	
GETTY
 TERMINALS CORP.


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ Vincent
 DeLaurentis


	
 

	
 

	






S-2





TABLE OF CONTENTS

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Page


	
 


	
1.

	
DEFINITIONS

	
2

	
 


	
 

	
1.1

	
1998 Master Lease

	
2

	
 


	
 

	
1.2

	
Abandoned Properties

	
2

	
 


	
 

	
1.3

	
Additional Rent

	
2

	
 


	
 

	
1.4

	
Affiliate

	
2

	
 


	
 

	
1.5

	
April 1999 Master Lease

	
2

	
 


	
 

	
1.6

	
Award

	
2

	
 


	
 

	
1.7

	
Bankruptcy Default

	
2

	
 


	
 

	
1.8

	
Business Day

	
3

	
 


	
 

	
1.9

	
Casualty

	
3

	
 


	
 

	
1.10

	
Closure

	
3

	
 


	
 

	
1.11

	
Commencement Date

	
4

	
 


	
 

	
1.12

	
Condemnation

	
4

	
 


	
 

	
1.13

	
Construction Work

	
4

	
 


	
 

	
1.14

	
Contamination

	
4

	
 


	
 

	
1.15

	
County

	
4

	
 


	
 

	
1.16

	
CPI

	
4

	
 


	
 

	
1.17

	
CPI Adjustment Factor

	
4

	
 


	
 

	
1.18

	
Default

	
5

	
 


	
 

	
1.19

	
Depository

	
5

	
 


	
 

	
1.20

	
Distribution Agreement

	
5

	
 


	
 

	
1.21

	
Environmental Agreement

	
5

	
 


	
 

	
1.22

	
Environmental Law

	
5

	
 


	
 

	
1.23

	
Equipment Liens

	
5

	
 


	
 

	
1.24

	
Estoppel Certificate

	
6

	
 


	
 

	
1.25

	
Fee Estate

	
6

	
 


	
 

	
1.26

	
Fee Mortgage

	
6

	
 


	
 

	
1.27

	
Fixed Rent

	
6

	
 


	
 

	
1.28

	
Fixed Rent Adjustment
 Procedures

	
6

	
 


	
 

	
1.29

	
Fleet Mortgage

	
7

	
 


	
 

	
1.30

	
GAAP

	
7

	
 


	
 

	
1.31

	
Gettymart Lease

	
7

	
 


	
 

	
1.32

	
Gettymart Lease Estoppel
 Certificate

	
7

	
 


	
 

	
1.33

	
Gettymart Lessor

	
7

	
 


	
 

	
1.34

	
Government

	
7

	
 


	
 

	
1.35

	
Governmental Request

	
7

	
 


	
 

	
1.36

	
Hazardous Substances

	
8

	
 


	
 

	
1.37

	
Impositions

	
8

	
 


	
 

	
1.38

	
Improvements

	
8

	
 


	
 

	
1.39

	
Indemnify

	
8

	
 


	
 

	
1.40

	
Indemnitee

	
9

	
 





i






	
 

	
 

	
 

	
 

	
 


	
 

	
1.41

	
Indemnitor

	
9

	
 


	
 

	
1.42

	
Institutional Lender

	
9

	
 


	
 

	
1.43

	
Insubstantial Condemnation

	
9

	
 


	
 

	
1.44

	
Knowledge

	
9

	
 


	
 

	
1.45

	
Landlord

	
9

	
 


	
 

	
1.46

	
Landlord’s Award

	
9

	
 


	
 

	
1.47

	
Law

	
10

	
 


	
 

	
1.48

	
Lease Termination Damages

	
10

	
 


	
 

	
1.49

	
Lease Year

	
10

	
 


	
 

	
1.50

	
Leasehold Estate

	
11

	
 


	
 

	
1.51

	
Leasehold Mortgagee

	
11

	
 


	
 

	
1.52

	
Legal Costs

	
11

	
 


	
 

	
1.53

	
Leemilt’s Lease

	
11

	
 


	
 

	
1.54

	
Leemilt’s Lease Estoppel
 Certificate

	
11

	
 


	
 

	
1.55

	
Leemilt’s Lessor

	
11

	
 


	
 

	
1.56

	
License Agreement

	
11

	
 


	
 

	
1.57

	
Major Violation

	
12

	
 


	
 

	
1.58

	
Marketing Parent

	
12

	
 


	
 

	
1.59

	
Material Monetary Default

	
12

	
 


	
 

	
1.60

	
Merger Agreement

	
12

	
 


	
 

	
1.61

	
Mortgage

	
12

	
 


	
 

	
1.62

	
New Contamination

	
12

	
 


	
 

	
1.63

	
Non-Material Monetary
 Default

	
12

	
 


	
 

	
1.64

	
Non-Monetary Default

	
12

	
 


	
 

	
1.65

	
Notice

	
12

	
 


	
 

	
1.66

	
Pelham Manor Rezoning Event

	
13

	
 


	
 

	
1.67

	
Permitted Exception

	
13

	
 


	
 

	
1.68

	
Permitted Leasehold
 Mortgage

	
13

	
 


	
 

	
1.69

	
Permitted Leasehold
 Mortgagee

	
13

	
 


	
 

	
1.70

	
Person

	
13

	
 


	
 

	
1.71

	
Personal Property

	
13

	
 


	
 

	
1.72

	
Personal Property Letter

	
13

	
 


	
 

	
1.73

	
Petroleum Terminal
 Properties

	
13

	
 


	
 

	
1.74

	
Post-Reorganization Leases

	
14

	
 


	
 

	
1.75

	
Power Test Lease

	
14

	
 


	
 

	
1.76

	
Power Test Lease Estoppel
 Certificate

	
14

	
 


	
 

	
1.77

	
Power Test Lessor

	
14

	
 


	
 

	
1.78

	
Premises

	
14

	
 


	
 

	
1.79

	
Prime Rate

	
14

	
 


	
 

	
1.80

	
Prohibited Liens

	
15

	
 


	
 

	
1.81

	
Property

	
15

	
 


	
 

	
1.82

	
Real Estate Taxes

	
15

	
 


	
 

	
1.83

	
Realty Parent

	
16

	
 


	
 

	
1.84

	
Remediate

	
16

	
 


	
 

	
1.85

	
Renewal Option

	
16

	
 





ii






	
 

	
 

	
 

	
 

	
 


	
 

	
1.86

	
Rent

	
16

	
 


	
 

	
1.87

	
Restatement Effective Date

	
16

	
 


	
 

	
1.81A

	
Restatement Effective Time

	
16

	
 


	
 

	
1.88

	
September 1999 Master Lease

	
16

	
 


	
 

	
1.89

	
Service Station Properties

	
16

	
 


	
 

	
1.90

	
State

	
16

	
 


	
 

	
1.91

	
Sublease

	
16

	
 


	
 

	
1.92

	
Subsidiary

	
17

	
 


	
 

	
1.93

	
Substantial Casualty

	
17

	
 


	
 

	
1.94

	
Substantial Condemnation

	
17

	
 


	
 

	
1.95

	
Subtenant

	
17

	
 


	
 

	
1.96

	
Temporary Condemnation

	
17

	
 


	
 

	
1.97

	
Tenant

	
17

	
 


	
 

	
1.98

	
Tenant Improvements

	
17

	
 


	
 

	
1.99

	
Tenant’s Award

	
17

	
 


	
 

	
1.100

	
Tenant’s Condemnation Share

	
18

	
 


	
 

	
1.101

	
Termination Date

	
18

	
 


	
 

	
1.102

	
Third Party Lease

	
18

	
 


	
 

	
1.103

	
Third Party Lease Estoppel
 Certificate

	
18

	
 


	
 

	
1.104

	
Third Party Lease Spread

	
18

	
 


	
 

	
1.105

	
Third Party Lease Renewal
 Option

	
19

	
 


	
 

	
1.106

	
Third Party Lessor

	
19

	
 


	
 

	
1.107

	
Trade Equipment

	
19

	
 


	
 

	
1.108

	
Transfer Tax Agreement

	
19

	
 


	
 

	
1.109

	
Unavoidable Delay

	
19

	
 


	
 

	
1.110

	
Uneconomic

	
19

	
 


	
 

	
1.111

	
Use Restriction Event

	
19

	
 


	
 

	
1.112

	
UST

	
20

	
 


	
 

	
1.113

	
UST Upgrade

	
20

	
 


	
 

	
1.114

	
Waiver of Subrogation

	
20

	
 


	
 

	
 

	
 

	
 

	
 


	
2.

	
TERM

	
 

	
20

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
2.1

	
Initial Term and Renewal
 Term(s)

	
20

	
 


	
 

	
2.2

	
Default by Tenant

	
21

	
 


	
 

	
2.3

	
Title to Tenant
 Improvements and Personal Property

	
21

	
 


	
 

	
 

	
 

	
 

	
 


	
3.

	
RENT

	
 

	
21

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
3.1

	
Fixed Rent

	
21

	
 


	
 

	
3.2

	
Payment; Proration; Etc

	
21

	
 


	
 

	
3.3

	
Additional Rent

	
22

	
 


	
 

	
3.4

	
No Allocation to Personal
 Property; Allocation to Royalty Fee

	
22

	
 


	
 

	
3.5

	
Offsets

	
22

	
 





iii






	
 

	
 

	
 

	
 

	
 


	
4.

	
ADDITIONAL PAYMENTS BY
 TENANT; IMPOSITIONS

	
23

	
 


	
 


	
 

	
4.1

	
Landlord’s Net Return

	
23

	
 


	
 

	
4.2

	
Impositions

	
23

	
 


	
 

	
4.3

	
Assessments in Installments

	
24

	
 


	
 

	
4.4

	
Deposits for Real Estate
 Taxes

	
24

	
 


	
 

	
4.5

	
Leasehold Mortgage Real
 Estate Tax Deposits

	
26

	
 


	
 

	
4.6

	
Direct Payment by Landlord

	
26

	
 


	
 

	
4.7

	
Tax Lots

	
27

	
 


	
 

	
4.8

	
Utilities

	
27

	
 


	
 

	
 

	
 

	
 

	
 


	
5.

	
USE

	
 

	
27

	
 


	
 

	
 

	
 

	
 

	
 


	
6.

	
COMPLIANCE WITH LAW

	
27

	
 


	
 

	
 

	
 

	
 

	
 


	
7.

	
MAINTENANCE AND ALTERATIONS

	
28

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
7.1

	
Obligation to Maintain

	
28

	
 


	
 

	
7.2

	
Tenant’s Right to Perform
 Alterations

	
28

	
 


	
 

	
7.3

	
Plans and Specifications

	
29

	
 


	
 

	
7.4

	
Excavations

	
29

	
 


	
 

	
7.5

	
Cooperation by Landlord

	
29

	
 


	
 

	
7.6

	
USTs

	
30

	
 


	
 

	
 

	
 

	
 

	
 


	
8.

	
PROHIBITED LIENS

	
30

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
8.1

	
Tenant’s Covenant

	
30

	
 


	
 

	
8.2

	
Protection of Landlord

	
31

	
 


	
 

	
 

	
 

	
 

	
 


	
9.

	
ENVIRONMENTAL MATTERS

	
31

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
9.1

	
Landlord Remediation

	
31

	
 


	
 

	
9.2

	
Tenant Obligations

	
33

	
 


	
 

	
 

	
 

	
 

	
 


	
10.

	
INDEMNIFICATION; LIABILITY
 OF LANDLORD

	
33

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
10.1

	
Mutual Indemnity
 Obligations

	
33

	
 


	
 

	
10.2

	
Liability of Landlord

	
34

	
 


	
 

	
10.3

	
Indemnification Procedures

	
35

	
 


	
 

	
10.4

	
Insurance Proceeds

	
35

	
 


	
 

	
10.5

	
Survival

	
35

	
 


	
 

	
 

	
 

	
 

	
 


	
11.

	
RIGHT OF CONTEST

	
36

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
11.1

	
Tenant’s Right

	
36

	
 


	
 

	
11.2

	
Landlord’s Obligations and
 Protections

	
36

	
 


	
 

	
11.3

	
Miscellaneous

	
36

	
 


	
 

	
11.4

	
Cooperation

	
36

	
 





iv






	
 

	
 

	
 

	
 

	
 


	
12.

	
INSURANCE

	
37

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
12.1

	
Tenant to Insure

	
37

	
 


	
 

	
12.2

	
Nature of Insurance Program

	
38

	
 


	
 

	
12.3

	
Policy Requirements and
 Endorsements

	
38

	
 


	
 

	
12.4

	
Deliveries to Landlord

	
39

	
 


	
 

	
12.5

	
Deductibles

	
39

	
 


	
 

	
12.6

	
Tenant’s Inability to
 Obtain Insurance

	
39

	
 


	
 

	
12.7

	
Waiver of Certain Claims

	
39

	
 


	
 

	
12.8

	
No Representation of
 Adequate Coverage

	
40

	
 


	
 

	
 

	
 

	
 

	
 


	
13.

	
DAMAGE OR DESTRUCTION

	
40

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
13.1

	
Notice; No Rent Abatement

	
40

	
 


	
 

	
13.2

	
Adjustment of Claims; Use
 of Insurance Proceeds

	
40

	
 


	
 

	
13.3

	
Substantial Casualty;
 Insufficient Proceeds

	
41

	
 


	
 

	
13.4

	
End of Term

	
41

	
 


	
 

	
 

	
 

	
 

	
 


	
14.

	
CONDEMNATION

	
42

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
14.1

	
Substantial Condemnation

	
42

	
 


	
 

	
14.2

	
Insubstantial Condemnation

	
43

	
 


	
 

	
14.3

	
Temporary Condemnation

	
45

	
 


	
 

	
14.4

	
Other Governmental Action

	
45

	
 


	
 

	
14.5

	
Prompt Notice; Settlement

	
45

	
 


	
 

	
14.6

	
Pelham Manor Rezoning Event

	
45

	
 


	
 

	
14.7

	
Use Restriction Event

	
45

	
 


	
 

	
 

	
 

	
 

	
 


	
15.

	
TRANSFERS BY LANDLORD

	
46

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
15.1

	
Landlord’s Right to Convey

	
46

	
 


	
 

	
15.2

	
Tenant’s Right of First
 Offer

	
46

	
 


	
 

	
15.3

	
Tenant’s Right of First
 Refusal

	
48

	
 


	
 

	
15.4

	
Landlord’s Mortgages

	
49

	
 


	
 

	
15.5

	
Termination of Purchase
 Option on Conveyance of Fee Estate

	
50

	
 


	
 

	
15.6

	
Sale of Premises; Mergers

	
50

	
 


	
 

	
15.7

	
Zoning Lots

	
50

	
 


	
 

	
15.8

	
Fleet Mortgage

	
50

	
 


	
 

	
 

	
 

	
 

	
 


	
16.

	
TRANSFERS BY TENANT

	
52

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
16.1

	
Tenant’s Limited Right

	
52

	
 


	
 

	
16.2

	
Permitted Assignments

	
52

	
 


	
 

	
16.3

	
Tenant’s Right to Sublet

	
52

	
 


	
 

	
16.4

	
Subleases with Single
 Purpose Entities

	
53

	
 


	
 

	
16.5

	
No Release

	
53

	
 





v






	
 

	
 

	
 

	
 

	
 


	
17.

	
QUIET ENJOYMENT

	
53

	
 


	
 

	
 

	
 

	
 

	
 


	
18.

	
DEFAULT BY TENANT; REMEDIES

	
54

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
18.1

	
Definition of “Event of
 Default”

	
54

	
 


	
 

	
18.2

	
Remedies for Material
 Monetary Event of Defaults

	
55

	
 


	
 

	
18.3

	
Remedies for Other Events
 of Default

	
56

	
 


	
 

	
18.4

	
Mitigation of Damages

	
56

	
 


	
 

	
18.5

	
Tenant’s Late Payments

	
56

	
 


	
 

	
18.6

	
Landlord’s Right to Cure

	
57

	
 


	
 

	
18.7

	
Holding Over

	
57

	
 


	
 

	
18.8

	
Waivers

	
57

	
 


	
 

	
18.9

	
Accord and Satisfaction;
 Partial Payments by Tenant

	
58

	
 


	
 

	
18.10

	
Accord and Satisfaction;
 Partial Payments by Landlord

	
58

	
 


	
 

	
18.11

	
Cross-Default

	
58

	
 


	
 

	
 

	
 

	
 

	
 


	
19.

	
TERMINATION

	
58

	
 


	
 

	
 

	
 

	
 

	
 


	
20.

	
NOTICES

	
59

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
20.1

	
Generally

	
59

	
 


	
 

	
20.2

	
Defaults Under Other
 Agreements

	
60

	
 


	
 

	
 

	
 

	
 

	
 


	
21.

	
NO BROKER

	
60

	
 


	
 

	
 

	
 

	
 

	
 


	
22.

	
THIRD PARTY LEASES

	
60

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
22.1

	
Subordination; Conflict

	
60

	
 


	
 

	
22.2

	
Renewal Options

	
61

	
 


	
 

	
22.3

	
Renewals

	
63

	
 


	
 

	
22.5

	
Termination of Third Party
 Lease

	
65

	
 


	
 

	
 

	
 

	
 

	
 


	
23.

	
WAIVERS

	
66

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
23.1

	
No Waiver by Silence

	
66

	
 


	
 

	
23.2

	
No Landlord’s Lien

	
66

	
 


	
 

	
 

	
 

	
 

	
 


	
24.

	
FURTHER ASSURANCES;
 ADDITIONAL DELIVERIES

	
66

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
24.1

	
Estoppel Certificates

	
66

	
 


	
 

	
24.2

	
Equipment Liens

	
67

	
 


	
 

	
24.3

	
Further Assurances

	
67

	
 


	
 

	
 

	
 

	
 

	
 


	
25.

	
OBLIGATIONS UNDER ORIGINAL
 LEASE

	
67

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
25.1

	
Generally

	
67

	
 


	
 

	
25.2

	
Violations of Law

	
68

	
 


	
 

	
25.3

	
Violation of Environmental
 Law

	
71

	
 


	
 

	
25.4

	
No Actions

	
71

	
 





vi






	
 

	
 

	
 

	
 

	
 


	
26.

	
PERMITTED LEASEHOLD MORTGAGES;
 RIGHTS OF LEASEHOLD MORTGAGEE

	
71

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
26.1

	
Tenant’s Right to Mortgage
 Lease

	
71

	
 


	
 

	
26.2

	
Rights of Leasehold
 Mortgagee

	
72

	
 


	
 

	
26.3

	
Noncurable Non-Monetary
 Default

	
73

	
 


	
 

	
26.4

	
Delegation of Tenant’s
 Rights

	
73

	
 


	
 

	
26.5

	
Assignment/Sale

	
74

	
 


	
 

	
26.6

	
Termination of Lease; New
 Lease to Mortgagee

	
74

	
 


	
 

	
26.7

	
Landlord’s Right to Payment

	
75

	
 


	
 

	
26.8

	
Rejection in Bankruptcy

	
75

	
 


	
 

	
26.9

	
Conflicts Among Leasehold
 Mortgagees

	
75

	
 


	
 

	
26.10

	
Limited Waiver

	
76

	
 


	
 

	
 

	
 

	
 

	
 


	
27.

	
PERMITTED EXCEPTIONS

	
76

	
 


	
 

	
 

	
 

	
 

	
 


	
28.

	
SINGLE LEASE

	
76

	
 


	
 

	
 

	
 

	
 

	
 


	
29.

	
REPORTING

	
77

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
29.1

	
Property-Level Reporting

	
77

	
 


	
 

	
29.2

	
Tenant Reporting

	
77

	
 


	
 

	
 

	
 

	
 

	
 


	
30.

	
REPRESENTATIONS, WARRANTIES
 AND COVENANTS

	
77

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
30.1

	
Landlord’s Representations,
 Warranties and Covenants

	
77

	
 


	
 

	
30.2

	
Tenant’s Representations
 And Warranties

	
81

	
 


	
 

	
30.3

	
Survival

	
82

	
 


	
 

	
 

	
 

	
 

	
 


	
31.

	
LANDLORD DEFAULT

	
82

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
31.1

	
Landlord Default

	
82

	
 


	
 

	
31.2

	
Dispute

	
82

	
 


	
 

	
 

	
 

	
 

	
 


	
32.

	
MISCELLANEOUS

	
83

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
32.1

	
Force Majeure

	
83

	
 


	
 

	
32.2

	
Performance Under Protest

	
83

	
 


	
 

	
32.3

	
Legal Costs, Generally

	
83

	
 


	
 

	
32.4

	
Access

	
83

	
 


	
 

	
32.5

	
Vault Space

	
84

	
 


	
 

	
32.6

	
No Third Party
 Beneficiaries

	
84

	
 


	
 

	
32.7

	
Amendment; Amendment of
 Other Agreements

	
84

	
 


	
 

	
32.8

	
Partial Invalidity

	
84

	
 


	
 

	
32.9

	
Successors and Assigns

	
84

	
 


	
 

	
32.10

	
Recording

	
84

	
 


	
 

	
32.11

	
Consequential Damages

	
85

	
 





vii






	
 

	
 

	
 

	
 

	
 


	
33.

	
INTERPRETATION; EXECUTION
 AND APPLICATION OF RESTATED LEASE

	
85

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
33.1

	
Governing Law

	
85

	
 


	
 

	
33.2

	
Submission to Jurisdiction

	
85

	
 


	
 

	
33.3

	
Agent for Service of
 Process

	
86

	
 


	
 

	
33.4

	
Counterparts

	
86

	
 


	
 

	
33.5

	
Reasonableness

	
86

	
 


	
 

	
33.6

	
Interpretation

	
87

	
 


	
 

	
33.7

	
Delivery of Drafts

	
87

	
 


	
 

	
33.8

	
Captions

	
87

	
 


	
 

	
33.9

	
Restatement Effective Date;
 Outside Date

	
87

	
 


	
 

	
33.10

	
Restatement Effective Date;
 Estoppel Certificate; Representations

	
87

	
 


	
 

	
33.11

	
Entire Agreement; Other
 Agreements

	
87

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
MASTER LEASE

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
ATTACHMENTS:

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
EXHIBITS

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
Exhibit “A”

	
Fee
 Properties Demised under Original Lease

	
 

	
 


	
Exhibit “B”

	
Third Party
 Lease and Power Test Lease Locations Demised

	
 

	
 


	
 

	
 

	
under the
 1997 Master Lease

	
 

	
 


	
Exhibit “C”

	
Properties
 with Inactive USTs

	
 

	
 


	
Exhibit “D”

	
Intentionally
 Omitted

	
 

	
 


	
Exhibit “E”

	
Intentionally
 Omitted

	
 

	
 


	
Exhibit “F”

	
Expedited
 Arbitration Rules

	
 

	
 


	
Exhibit “G”

	
Power Test
 Leases

	
 

	
 


	
Exhibit “H”

	
Third Party
 Leases

	
 

	
 


	
Exhibit “I”

	
Landlord’s
 Fee Mortgages

	
 

	
 


	
Exhibit “J”

	
Petroleum
 Terminal Properties

	
 

	
 


	
Exhibit “K”

	
Form of SNDA
 for Existing Fee Mortgages

	
 

	
 


	
Exhibit “L”

	
Pending
 Condemnations

	
 

	
 


	
Exhibit “M”

	
Power Test
 Lessor’s Fee Mortgages

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
SCHEDULES

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
Schedule 1

	
Abandoned
 Properties

	
 

	
 


	
Schedule 2

	
Properties
 with Non-Complying USTs

	
 

	
 


	
Schedule 3

	
Properties
 with Ongoing Remediations

	
 

	
 


	
Schedule 4

	
Fixed Rent
 Adjustment Procedures

	
 

	
 


	
Schedule 5

	
Landlord’s
 Certificate of Occupancy and GSS Zoning Obligations

	
 

	
 


	
Schedule 6

	
Material
 Violations of Law

	
 

	
 


	
Schedule 7

	
Intentionally
 Omitted

	
 

	
 


	
Schedule 8

	
Certain
 Permitted Leasehold Mortgagees

	
 

	
 





viii






	
 

	
 

	
 

	
 

	
 


	
Schedule 9

	
Intentionally
 Omitted

	
 

	
 


	
Schedule 10

	
Real Estate
 Taxes for Twelve Calendar Months Immediately

	
 

	
 


	
 

	
 

	
Preceding
 Restatement Effective Date

	
 

	
 


	
Schedule 11

	
Form of
 Landlord’s Equipment Lien Waiver

	
 

	
 


	
Schedule 12

	
Form of
 Lease Modification Agreement for Power Test Leases

	
 

	
 


	
Schedule 13

	
Transferee
 Lease - Provisions of Restated Lease Not to be

	
 

	
 


	
 

	
 

	
Included in
 Transferee Lease

	
 

	
 


	
Schedule 14

	
Pending
 Actions and Proceedings

	
 

	
 


	
Schedule 15

	
Recently
 Exercised Third Party Lease Renewals

	
 

	
 


	
Schedule 16

	
Properties
 Encumbered by Fleet Mortgage

	
 

	
 





ix






INDEX OF DEFINED TERMS


	
 

	
 

	
 


	
 

	
1

	
 


	
1997 Master
 Lease

	
 

	
1


	
1998 Master
 Lease

	
 

	
2


	
 

	
 

	
 


	
 

	
A

	
 


	
Abandoned
 Properties

	
 

	
2


	
Additional
 Rent

	
 

	
2


	
Affiliate

	
 

	
2


	
Agent

	
 

	
96


	
Annual
 Damage Amount

	
 

	
12


	
April 1999
 Master Lease

	
 

	
3


	
Award

	
 

	
3


	
 

	
 

	
 


	
 

	
B

	
 


	
Bankruptcy
 Default

	
 

	
3


	
Business Day

	
 

	
3


	
 

	
 

	
 


	
 

	
C

	
 


	
Casualty

	
 

	
3


	
Certifying
 Party

	
 

	
75


	
Closure

	
 

	
3


	
Commencement
 Date

	
 

	
4


	
Condemnation

	
 

	
4


	
Construction
 Work

	
 

	
5


	
Contamination

	
 

	
5


	
Contest

	
 

	
42


	
Costs

	
 

	
59


	
County

	
 

	
5


	
CPI

	
 

	
5


	
CPI
 Adjustment Factor

	
 

	
5


	
 

	
 

	
 


	
 

	
D

	
 


	
Default

	
 

	
5


	
Deletion
 Request

	
 

	
78


	
Depository

	
 

	
6


	
Distribution
 Agreement

	
 

	
6


	
 

	
 

	
 


	
 

	
E

	
 


	
Environmental
 Agreement

	
 

	
6


	
Environmental
 Consultant

	
 

	
38


	
Environmental
 Law

	
 

	
6


	
Equipment
 Liens

	
 

	
6


	
Estoppel
 Certificate

	
 

	
7


	
Event of
 Default

	
 

	
61


	
 

	
 

	
 


	
 

	
 

	
F


	
Fee Estate

	
 

	
7


	
Fee Mortgage

	
 

	
7


	
First
 Renewal Term

	
 

	
25


	
Fixed Rent

	
 

	
8, 26


	
Fixed Rent
 Adjustment Procedures

	
 

	
8


	
Fleet
 Mortgage

	
 

	
8


	
Fleet SNDA

	
 

	
58


	
Foreclosure

	
 

	
58


	
 

	
 

	
 


	
 

	
G

	
 


	
GAAP

	
 

	
8


	
Gap Period

	
 

	
94


	
Gettymart
 Lease

	
 

	
8


	
Gettymart
 Lease Estoppel Certificate

	
 

	
8


	
Gettymart
 Lessor

	
 

	
9


	
Government

	
 

	
9


	
Governmental
 Request

	
 

	
9


	
 

	
 

	
 


	
 

	
H

	
 


	
Hazardous
 Substances

	
 

	
9


	
 

	
 

	
 


	
 

	
I

	
 


	
Impositions

	
 

	
9


	
Improvements

	
 

	
10


	
Indemnify

	
 

	
10


	
Indemnitee

	
 

	
10


	
Indemnitor

	
 

	
11


	
Initial Term

	
 

	
25


	
Institutional
 Lender

	
 

	
11


	
Insubstantial
 Condemnation

	
 

	
11


	
 

	
 

	
 


	
 

	
K

	
 


	
Knowledge

	
 

	
11





x






	
 

	
 

	
 


	
 

	
L

	
 


	
Land

	
 

	
1


	
Landlord

	
 

	
1, 11


	
Landlord’s
 Award

	
 

	
11


	
Landlord’s
 Offer

	
 

	
54


	
Landlord’s
 Organizational Documents

	
 

	
87


	
Law

	
 

	
12


	
Lease Box
 Breach

	
 

	
88


	
Lease Box
 Certificate

	
 

	
88


	
Lease
 Termination Damages

	
 

	
12


	
Lease Year

	
 

	
13


	
Leasehold
 Estate

	
 

	
13


	
Leasehold
 Mortgagee

	
 

	
13


	
Leemilt’s
 Lease

	
 

	
13


	
Leemilt’s
 Lease Estoppel Certificate

	
 

	
13


	
Leemilt’s
 Lessor

	
 

	
14


	
Legal Costs

	
 

	
13


	
License
 Agreement

	
 

	
14


	
Lukoil USA

	
 

	
96


	
 

	
 

	
 


	
 

	
M

	
 


	
Major
 Violation

	
 

	
14


	
Marketing
 Parent

	
 

	
14


	
Material
 Monetary Default

	
 

	
14


	
Material
 Monetary Event of Default

	
 

	
61


	
Maximum
 Renewal Term Rent Allocation

	
 

	
70


	
Merger
 Agreement

	
 

	
14


	
Monthly Tax
 Payment

	
 

	
30


	
Mortgage

	
 

	
15


	
 

	
 

	
 


	
 

	
N

	
 


	
New
 Contamination

	
 

	
15


	
Non-Material
 Monetary Default

	
 

	
15


	
Non-Material
 Monetary Event of Default

	
 

	
62


	
Non-Monetary
 Default

	
 

	
15


	
Non-Monetary
 Event of Default

	
 

	
62


	
Notice

	
 

	
15


	
 

	
 

	
 


	
 

	
O

	
 


	
Original
 Gettymart Lease

	
 

	
90


	
Original
 Lease

	
 

	
1


	
Original
 Term Rent Allocation

	
 

	
70


	
 

	
 

	
 


	
 

	
P

	
 


	
Pelham Manor
 Rezoning Event

	
 

	
15


	
Permitted
 Exception

	
 

	
16


	
Permitted
 Leasehold Mortgage

	
 

	
16


	
Permitted
 Leasehold Mortgagee

	
 

	
16


	
Person

	
 

	
16


	
Personal
 Property

	
 

	
16


	
Personal
 Property Letter

	
 

	
16


	
Petroleum
 Terminal Properties

	
 

	
17


	
Post-Reorganization
 Leases

	
 

	
17


	
Power Test
 Lease

	
 

	
17


	
Power Test
 Lease Estoppel Certificate

	
 

	
17


	
Power Test
 Lessor

	
 

	
17


	
Preexisting
 Environmental Violation

	
 

	
80


	
Preexisting
 Violation

	
 

	
76


	
Premises

	
 

	
1, 18


	
Prime Rate

	
 

	
18


	
Prohibited
 Lien

	
 

	
18


	
Properties

	
 

	
18


	
Property

	
 

	
1, 18


	
 

	
 

	
 


	
 

	
R

	
 


	
Real Estate
 Taxes

	
 

	
19


	
Realty
 Parent

	
 

	
19


	
Remediate

	
 

	
19


	
Renewal
 Option

	
 

	
20, 25


	
Renewal Term

	
 

	
25


	
Renewal Term
 Rent Allocation

	
 

	
70


	
Rent

	
 

	
20


	
Requesting
 Party

	
 

	
75


	
Restated
 Lease

	
 

	
1


	
Restatement
 Effective Date

	
 

	
20


	
Restatement
 Effective Time

	
 

	
20


	
Right of
 First Offer

	
 

	
54


	
Right of
 First Refusal

	
 

	
55


	
ROFR
 Property

	
 

	
54


	
Royalty Fee

	
 

	
27


	
 

	
 

	
 


	
 

	
S

	
 


	
Separate
 Award Jurisdiction

	
 

	
49


	
September
 1999 Master Lease

	
 

	
20


	
Service
 Station Properties

	
 

	
20


	
SNDA

	
 

	
58


	
State

	
 

	
20





xi






	
 

	
 

	
 


	
Sublease

	
 

	
20, 60


	
Subsidiary

	
 

	
21


	
Substantial
 Casualty

	
 

	
21


	
Substantial
 Condemnation

	
 

	
21


	
Subtenant

	
 

	
21


	
Subtenants

	
 

	
60


	
 

	
 

	
 


	
 

	
T

	
 


	
Temporary
 Condemnation

	
 

	
21


	
Tenant

	
 

	
1, 21


	
Tenant
 Improvements

	
 

	
22


	
Tenant’s
 Award

	
 

	
22


	
Tenant’s
 Condemnation Share

	
 

	
22


	
Tenant’s
 Organizational Documents

	
 

	
91


	
Term

	
 

	
25


	
Termination
 Date

	
 

	
22


	
Third Party
 Lease

	
 

	
22


	
Third Party
 Lease Estoppel Certificate

	
 

	
23


	
Third Party
 Lease Non-disturbance Agreement

	
 

	
74


	
Third Party
 Lease Renewal Option

	
 

	
23


	
Third Party
 Lease Renewal Rental

	
 

	
70


	
Third Party
 Lease Spread

	
 

	
23


	
Third Party
 Lessor

	
 

	
23


	
Third Party
 Offer Notice

	
 

	
55


	
Trade
 Equipment

	
 

	
23


	
Transfer

	
 

	
59


	
Transfer Tax
 Agreement

	
 

	
24


	
Transferee
 Lease

	
 

	
53


	
 

	
 

	
 


	
 

	
U

	
 


	
Unavoidable
 Delay

	
 

	
24


	
Uneconomic

	
 

	
24


	
Uneconomic
 Threshold

	
 

	
78


	
Use
 Restriction Event

	
 

	
24


	
UST

	
 

	
24


	
UST Upgrade

	
 

	
25


	
 

	
 

	
 


	
 

	
W

	
 


	
Waiver of
 Subrogation

	
 

	
25





xii