EX-10.22



 






Exhibit 10.22







AMENDED AND RESTATED LEASE AGREEMENT




by and between




CP GAL PLAINFIELD, LLC,

a Delaware limited liability company




as LANDLORD




and




DICK’S SPORTING GOODS, INC.,

a Delaware corporation,




as TENANT




Premises: Plainfield, Indiana




Dated as of: November 30, 2005




 









 








	 	 	 	 	 	 	 
	1.

	 	Demise of Premises
	 	 	1	 
	2.

	 	Certain Definitions
	 	 	2	 
	3.

	 	Title and Condition
	 	 	9	 
	4.

	 	Use of Leased Premises; Quiet Enjoyment
	 	 	11	 
	5.

	 	Term
	 	 	12	 
	6.

	 	Basic Rent
	 	 	13	 
	7.

	 	Additional Rent
	 	 	13	 
	8.

	 	Net Lease; Non-Terminability
	 	 	14	 
	9.

	 	Payment of Impositions
	 	 	15	 
	10.

	 	Compliance with Laws and Easement Agreements, Environmental Matters
	 	 	16	 
	11.

	 	Liens; Recording
	 	 	18	 
	12.

	 	Maintenance and Repair
	 	 	18	 
	13.

	 	Alterations and Improvements
	 	 	20	 
	14.

	 	Permitted Contests
	 	 	20	 
	15.

	 	Indemnification
	 	 	21	 
	16.

	 	Insurance
	 	 	22	 
	17.

	 	Casualty and Condemnation
	 	 	25	 
	18.

	 	Termination Events
	 	 	28	 
	19.

	 	Restoration
	 	 	29	 
	20.

	 	Procedures Upon Purchase
	 	 	31	 
	21.

	 	Assignment and Subletting, Prohibition Against Leasehold Financing
	 	 	31	 
	22.

	 	Events of Default
	 	 	35	 
	23.

	 	Remedies and Damages upon Default
	 	 	37	 
	24.

	 	Notices
	 	 	39	 
	25.

	 	Estoppel Certificate
	 	 	40	 
	26.

	 	Surrender
	 	 	40	 
	27.

	 	No Merger of Title
	 	 	40	 
	28.

	 	Books and Records
	 	 	41	 
	29.

	 	Determination of Value
	 	 	42	 
	30.

	 	Non-Recourse as to Landlord
	 	 	42	 
	31.

	 	Financing
	 	 	43	 
	32.

	 	Subordination, Non-Disturbance and Attornment
	 	 	44	 
	33.

	 	Tax Treatment; Reporting
	 	 	44	 
	34.

	 	Intentionally Omitted
	 	 	45	 
	35.

	 	Right of First Offer
	 	 	45	 
	36.

	 	Miscellaneous
	 	 	47	 






EXHIBITS




	 	 	 	 	 
	 

	 	Exhibit “A-1”
	 	- Legal Description of the Existing Land






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	 	Exhibit “A-2”
	 	- Legal Description of the Additional Land
	 

	 	Exhibit “B”
	 	- Machinery and Equipment
	 

	 	Exhibit “C”
	 	- Schedule of Permitted Encumbrances
	 

	 	Exhibit “D”
	 	- Rent Schedule
	 

	 	Exhibit “E”
	 	- Form of Addendum to Lease
	 

	 	Exhibit “F”
	 	- Termination Fee Schedule






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          AMENDED AND RESTATED LEASE AGREEMENT, made as of November 30, 2005, between CP GAL PLAINFIELD,
LLC, a Delaware limited liability company (“Landlord”), with an address c/o W. P. Carey &
Co. LLC, 50 Rockefeller Plaza, 2nd Floor, New York, New York 10020, and DICK’S SPORTING GOODS,
INC., a Delaware corporation (“Tenant”), with an address at 300 Industry Drive, Pittsburgh,
Pennsylvania 15275.




PREAMBLE




          WHEREAS, Landlord and Galyan’s Trading Company, Inc., an Indiana corporation
(“Galyan’s”), previously entered into a Lease Agreement dated as of August 31, 1999,, as
amended by that certain First Amendment to Lease Agreement dated as of December 21, 2000 (as
amended, the “Original Lease”) pursuant to which Landlord leased to Galyan’s certain land
described on Exhibit “A-1” hereto (the “Original Land”) and all improvements and
equipment now or hereafter located thereon; and




          WHEREAS, the Original Land is currently improved with an approximately 364,008 square
foot warehouse/distribution center and improvements ancillary thereto (collectively, the
“Existing Improvements”); and




          WHEREAS, Galyan’s interest as lessee under the Original Lease was assigned to Tenant pursuant
to that certain Assignment and Assumption of Lease dated as of the date hereof; and




          WHEREAS, Landlord is acquiring certain additional land contiguous to the Original Land as
described on Exhibit “A-2” (the “Expansion Land”) and pursuant to the terms of the
Construction Agency Agreement (as defined herein) will cause or permit the construction thereon of
an approximately 361,000 square foot addition to the Original Improvements and improvements
ancillary thereto (collectively, the “Expansion Improvements”; and such acquisition of the
Expansion Land and construction of the Expansion Improvements hereinafter referred to as the
“Expansion”); and




          WHEREAS, in connection with the foregoing, Landlord and Tenant have agreed to amend and
restate the Original Lease in its entirety in order to include the Expansion Land and Expansion
Improvements as part of the Leased Premises and to adjust the Rent and other obligations of Tenant
under the Lease accordingly.




          NOW THEREFORE, in consideration of the rents and provisions herein stipulated to be paid and
performed, Landlord and Tenant hereby covenant and agree as follows:




     1. Demise of Premises. Landlord hereby demises and lets to Tenant, and Tenant
hereby takes and leases from Landlord, for the term and upon the provisions hereinafter specified,
the following described property (collectively, the “Leased Premises”): (a) the Original
Land and the Expansion Land, together with the Appurtenances (collectively, the “Land”);
(b) the Original Improvements, the Expansion Improvements and any other buildings, structures and
improvements now or hereafter constructed on the Land (collectively, the “Improvements”),
and



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(c) the fixtures, machinery, equipment and other property described in Exhibit “B hereto
(collectively, the “Equipment”).




     2. Certain Definitions.



          “Affiliate” of any Person shall mean any Person which shall (1) control, (2) be under the
control of, or (3) be under common control with such Person (the term “control” as used herein
shall be deemed to mean ownership of more than 50% of the outstanding voting stock of a
corporation, or other majority equity and control interest if such Person is not a corporation.




          “Additional Rent” shall mean Additional Rent as defined in Paragraph 7.




          “Alterations” shall mean all changes, additions, improvements or repairs to, all alterations,
reconstructions, renewals, replacements or removals of and all substitutions or replacements for
any of the Improvements or Equipment, both interior and exterior, structural and non-structural,
and ordinary and extraordinary.




          “Appurtenances” shall mean all tenements, hereditaments, easements, rights-of-way, rights,
privileges in and to the Land, including (a) easements over other lands granted by any Easement
Agreement and (b) any streets, sidewalks, driveways, curbs, ways, alleys, vaults, gores or strips
of land adjoining the Land.




          “Architect” shall mean the Architect as defined in the Construction Agency Agreement.




          “Assignment” shall mean any assignment of rents and leases from Landlord to a Lender which (a)
encumbers any of the Leased Premises and (b) secures Landlord’s obligation to repay a Loan, as the
same may be amended, supplemented or modified from time to time.




          “Basic Rent” shall mean the Schedule Basic Rent plus the Expansion Basic Rent.




          “Basic Rent Payment Dates” shall mean the Basic Rent Payment Dates as defined in Paragraph 6.




          “Casualty” shall mean any damage to or destruction of or which affects the Leased
Premises.




          “Condemnation” shall mean a Taking and/or a Requisition.




          “Condemnation Notice” shall mean notice or knowledge of the institution of or intention to
institute any proceeding for Condemnation.




          “Construction Agency Agreement” shall mean that certain Construction Agency Agreement of even
date herewith between Landlord and Tenant pursuant to which Tenant, as agent for Landlord, will
cause the construction of the Improvements on the Land, as the same may be amended, supplemented
or modified from time to time.




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          “Costs” of a Person or associated with a specified transaction shall mean all reasonable costs
and expenses incurred by such Person or associated with such transaction, including without
limitation, attorneys’ fees and expenses, court costs, brokerage fees, escrow fees, title insurance
premiums, mortgage commitment fees, mortgage points, recording fees and transfer taxes, as the
circumstances require.




          “Default Rate” shall mean the Default Rate as defined in Paragraph 7(a)(iv).




          “Direct Costs” shall mean Direct Costs as defined in Section 1.01 of the
Construction Agency Agreement.




          “Easement Agreement” shall mean any conditions, covenants, restrictions, easements,
declarations, licenses and other agreements listed as Permitted Encumbrances or as may hereafter
affect the Leased Premises.




          “Environmental Law” shall mean (i) whenever enacted or promulgated, any applicable federal,
state and local law, statute, ordinance, rule, regulation, license, permit, authorization,
approval, consent, court order, judgment, decree, injunction, code, requirement or agreement with
any governmental entity, (x) relating to pollution (or the cleanup thereof), or the protection of
air, water vapor, surface water, groundwater, drinking water supply, land (including land surface
or subsurface), plant, aquatic and animal life from injury caused by a Hazardous Substance or (y)
concerning exposure to, or the use, containment, storage, recycling, reclamation, reuse, treatment,
generation, discharge, transportation, processing, handling, labeling, production, disposal or
remediation of Hazardous Substances, Hazardous Conditions or Hazardous Activities, including but
not limited to all of the Environmental Management Laws, as defined in Ind. Code 13-11-2-71, in
each case as amended and as now or hereafter in effect, and (ii) any common law or equitable
doctrine (including, without limitation, injunctive relief and tort doctrines such as negligence,
nuisance, trespass and strict liability) that may impose liability or obligations for injuries or
damages due to or threatened as a result of the presence of, exposure to, or ingestion of, any
Hazardous Substance. The term Environmental Law includes, without limitation, the federal
Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act, the federal Water Pollution Control Act, the federal Clean Air
Act, the federal Clean Water Act, the federal Resources Conservation and Recovery Act of 1976
(including the Hazardous and Solid Waste Amendments to RCRA), the federal Solid Waste Disposal Act,
the federal Toxic Substance Control Act, the federal Insecticide, Fungicide and Rodenticide Act,
the federal Occupational Safety and Health Act of 1970, the federal National Environmental Policy
Act and the federal Hazardous Materials Transportation Act, each as amended and as now or hereafter
in effect and any similar state or local Law.




          “Environmental Violation” shall mean (a) any direct or indirect discharge, disposal, spillage,
emission, escape, pumping, pouring, injection, leaching, release, seepage, filtration or
transporting of any Hazardous Substance at, upon, under, onto or within the Leased Premises, or
from the Leased Premises to the environment, in violation of any Environmental Law or in excess of
any reportable quantity established under any Environmental Law or which could result in any
liability to Landlord, Tenant or Lender, any Federal, state or local government or any other Person
for the costs of any removal or remedial action or natural resources damage





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or for bodily injury or property damage, (b) any deposit, storage, dumping, placement or use
of any Hazardous Substance at, upon, under or within the Leased Premises in violation of any
Environmental Law or in excess of any reportable quantity established under any Environmental Law
or which could result in any liability to any Federal, state or local government or to any other
Person for the costs of any removal or remedial action or natural resources damage or for bodily
injury or property damage, (c) the abandonment or discarding of any barrels, containers or other
receptacles containing any Hazardous Substances in violation of any Environmental Laws, (d) any
activity, occurrence or condition which could result in any liability, cost or expense to Landlord
or Lender or any other owner or occupier of the Leased Premises, or which could result in a
creation of a lien on the Leased Premises under any Environmental Law, or (e) any violation of or
noncompliance with any Environmental Law.




          “Equipment” shall mean the Equipment as defined in Paragraph 1.




          “Event of Default” shall mean an Event of Default as defined in Paragraph 22(a).




          “Expansion” shall mean the Expansion as defined in the Preamble.




          “Expansion
Basic Rent” shall mean the rent payable pursuant to Paragraphs 2 and 3 of Exhibit “D” hereto.






          “Expansion Land” shall mean the Expansion Land as defined in the Preamble.




          “Existing Improvements” shall mean the Existing Improvements as defined in the Preamble.




          “Family Member” shall mean, with respect to any natural Person, such Person’s spouse,
descendants and parents, and any trust, partnership, limited liability company or other legal
entity created solely for the benefit of such Person and/or such Person’s spouse, descendants and
parents.




          “Federal Funds” shall mean federal or other immediately available funds which at the time of
payment are legal tender for the payment of public and private debts in the United States of
America.




          “Final Completion Date” shall mean the date on which (a) the Improvements, including all
“punch list” items shall have been completed in accordance with the Plans as certified to by the
Architect, (b) all permanent permits and licenses required for the occupancy of the Improvements
have been obtained and (c) Tenant is in occupancy of the Improvements, but in no event later than
sixty (60) days following the Substantial Completion Date.




          “Funding Deadline” shall mean the earliest to occur of (a) the Final Completion Date, (b) the
first Basic Rent Payment Date following the date on which Landlord has disbursed the full amount of
Landlord’s Share of Project Costs, and (c) the Outside Date; provided that, notwithstanding the
passing of the Funding Deadline, so long as no Event of Default has occurred and is then continuing
under this Lease and Tenant has paid in full any Basic Rent payment then due and payable hereunder,
Landlord shall continue to Fund Landlord’s Share of




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Project Costs in accordance with the terms of the Construction Agency Agreement and this
Lease.




          “Hazardous Activity” means any activity, process, procedure or undertaking which directly or
indirectly (i) procures, generates or creates any Hazardous Substance; (ii) causes or results in
(or threatens to cause or result in) the release, seepage, spill, leak, flow, discharge or emission
of any Hazardous Substance into the environment (including the air, ground water, watercourses or
water systems), (iii) involves the containment or storage of any Hazardous Substance; or (iv) would
cause the Leased Premises or any portion thereof to become a hazardous waste treatment, recycling,
reclamation, processing, storage or disposal facility within the meaning of any Environmental Law.




          “Hazardous Condition” means any condition which would support any claim or liability under any
Environmental Law, including the presence of underground storage tanks.




          “Hazardous Substance” means (i) any substance, material, product, petroleum, petroleum
product, derivative, compound or mixture, mineral (including asbestos), chemical, gas, medical
waste, or other pollutant, in each case whether naturally occurring, man-made or the by-product of
any process, that is toxic, harmful or hazardous or acutely hazardous to the environment or public
health or safety or (ii) any substance supporting a claim under any Environmental Law, whether or
not defined as hazardous as such under any Environmental Law. Hazardous Substances include, without
limitation, any toxic or hazardous waste, pollutant, contaminant, industrial waste, petroleum or
petroleum-derived substances or waste, radon, radioactive materials, asbestos, asbestos containing
materials, urea formaldehyde foam insulation, lead and polychlorinated biphenyls.




          “Impositions” shall mean the Impositions as defined in Paragraph 9(a).






          “Improvements” shall mean the Improvements as defined in Paragraph 1.


          “Indemnitee” shall mean an Indemnitee as defined in Paragraph 15.




          “Indirect Costs” shall mean Indirect Costs as defined in Section 1.01 of the
Construction Agency Agreement.




          “Initial Term” shall mean the Initial Term as defined in Paragraph 5.




          “Initial Term Commencement Date” shall mean the Initial Term Commencement Date as defined in
Paragraph 5.




          “Insurance Requirements” shall mean the requirements of all insurance policies required to be
maintained in accordance with this Lease.




          “Land” shall mean the Land as defined in Paragraph 1.




          “Landlord’s Share of Project Costs” shall mean the lesser of (i) $17,600,000 and (ii) actual
Project Costs, including all Direct Costs and Indirect Costs.




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          “Law” shall mean any constitution, statute, rule of law, code, ordinance, order, judgment,
decree, injunction, rule, regulation, policy, requirement or administrative or judicial
determination, even if unforeseen or extraordinary, of every duly constituted governmental
authority, court or agency, now or hereafter enacted or in effect.




          “Lease” shall mean this Lease Agreement.




          “Lease Year” shall mean, with respect to the first Lease Year, the period commencing on the
Primary Term Commencement Date and ending at midnight on the last day of the twelfth
(12th) full consecutive calendar month following the month in which the Primary Term
Commencement Date occurred, and each succeeding twelve (12) month period during the Term.




          “Leased Premises” shall mean the Leased Premises as defined in Paragraph 1.




          “Legal Requirements” shall mean the requirements of all present and future Laws (including but
not limited to Environmental Laws and Laws relating to accessibility to, usability by, and
discrimination against, disabled individuals) and all covenants, restrictions and conditions now or
hereafter of record which may be applicable to Tenant or to any of the Leased Premises, or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or
restoration of any of the Leased Premises, even if compliance therewith necessitates structural
changes or improvements or results in interference with the use or enjoyment of any of the Leased
Premises or requires Tenant to carry insurance other than as required by this Lease.




          “Lender” shall mean any person or entity (and its respective successors and assigns) which
may, on or after the date hereof, make a Loan to Landlord or be the holder of a Note.




          “LIBOR” shall mean the rate of interest, rounded upward to the nearest whole multiple of
one-sixteenth of one percent, as published by The Wall Street Journal (or if The Wall
Street Journal ceases to publish such rate, then the rate appearing on the Reuters Screen LIBO
Page for comparable amounts) as the 30-day London Inter-Bank Offered Rate for deposits in U.S.
Dollars at approximately 12:00 p.m. New York time on date that is two business days’ prior to the
re-set date applicable to each monthly period during the term of the Lease prior to the Funding
Deadline. Each determination of LIBOR applicable to a particular interest period shall be made by
Landlord and shall be conclusive and binding upon Tenant absent manifest error.




          “Loan” shall mean any loan made by one or more Lenders to Landlord, which loan is secured by
a Mortgage and an Assignment and evidenced by a Note.




          “Monetary Obligations” shall mean Rent and all other sums payable by Tenant under this Lease
to Landlord, to any third party on behalf of Landlord or to any Indemnitee.




          “Mortgage” shall mean any mortgage or deed of trust from Landlord to a Lender which (a)
encumbers any of the Leased Premises and (b) secures Landlord’s obligation to repay a Loan, as the
same may be amended, supplemented or modified.




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          “Net Award” shall mean (a) the entire award payable to Landlord or Lender by reason of a
Condemnation whether pursuant to a judgment or by agreement or otherwise, or (b) the entire
proceeds of any insurance required under clauses (i), (ii) (to the extent payable to Landlord or
Lender), (iv), (v) or (vi) of Paragraph 16(a), as the case may be, less any expenses incurred by
Landlord and Lender in collecting such award or proceeds.




          “Note” shall mean any promissory note evidencing Landlord’s obligation to repay a Loan, as the
same may be amended, supplemented or modified.




          “Original Land” shall mean the Original Land as defined in the Preamble.




          “Outside Date” shall mean the Outside Date as defined in the Construction Agency
Agreement.




          “Partial Condemnation” shall mean any Condemnation which does not constitute a Termination
Event.




          “Permitted Encumbrances” shall mean those covenants, restrictions, reservations, liens,
conditions and easements and other encumbrances, other than any Mortgage or Assignment, listed on
Exhibit “C” hereto (but such listing shall not be deemed to revive any such encumbrances that have
expired or terminated or are otherwise invalid or unenforceable).




          “Person” shall mean an individual, partnership, association, corporation or other entity.




          “Plans” shall mean the plans and specifications prepared by the Architect for the
construction of the Improvements.




          “Prepayment Premium” shall mean any payment required to be made by Landlord to a Lender under
a Note or any other document evidencing or securing a Loan (other than payments of principal and/or
interest which Landlord is required to make under a Note or a Mortgage) solely by reason of any
prepayment or defeasance by Landlord of any principal due under a Note or Mortgage, and which may
without limitation take the form of (i) a “make whole” or yield maintenance clause requiring a
prepayment premium or (ii) a defeasance payment (such defeasance payment to be an amount equal to
the positive difference between (a) the total amount required to defease a Loan and (b) the
outstanding principal balance of the Loan as of the date of such defeasance plus reasonable Costs
of Landlord and Lender.




          “Present Value” of any amount shall mean such amount discounted by a rate per annum which is
the lower of (a) the Prime Rate at the time such present value is determined or (b) six percent
(6%) per annum.




          “Primary Term” shall mean the Primary Term as defined in Paragraph 5.


          “Primary Term Commencement Date” shall mean the date of this Lease.



          “Primary Term Commencement Date” shall mean the date of this Lease.




          “Prime Rate” shall mean the annual interest rate as published, from time to time, in
The Wall Street Journal as the “Prime Rate” in its column entitled “Money Rate”. The
Prime





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Rate may not be the lowest rate of interest charged by any “large U.S. money center commercial
banks” and Landlord makes no representations or warranties to that effect. In the event The
Wall Street Journal ceases publication or ceases to publish the “Prime Rate” as described
above, the Prime Rate shall be the average per annum discount rate (the “Discount Rate”) on
ninety-one (91) day bills (“Treasury Bills”) issued from time to time by the United States
Treasury at its most recent auction, plus three hundred (300) basis points. If no such 91-day
Treasury Bills are then being issued, the Discount Rate shall be the discount rate on Treasury
Bills then being issued for the period of time closest to ninety-one (91) days.




          “Project Costs” shall mean the sum of all Direct Costs and Indirect Costs incurred or to be
incurred in connection with the acquisition of the Expansion Land, the construction of the
Expansion Improvements and the acquisition and installation of the Equipment in connection
therewith.




          “Remaining
Sum” shall mean Remaining Sum as defined in
Paragraph 19(c).


          “Renewal Term” shall mean Renewal Term as defined in Paragraph 5.


          “Rent” shall
mean, collectively, Basic Rent and Additional Rent.




          “Requisition” shall mean any temporary requisition or confiscation of the use or occupancy of
any of the Leased Premises by any governmental authority, civil or military, whether pursuant to an
agreement with such governmental authority in settlement of or under threat of any such requisition
or confiscation, or otherwise.




          “Schedule Basic Rent” shall mean the rent payable pursuant to Paragraph 1 of Exhibit
“D” hereto.




          “Site Assessment” shall mean a Site Assessment as defined in Paragraph 10(c).





          “State” shall mean the State of Indiana.




          “Substantial Completion Date” shall mean the date on which (a) the
 Improvements (excluding “punch list” items, i.e., minor details of construction, decoration or
mechanical adjustment, the non-completion of which will not interfere with Tenant’s use and/or
occupancy of the Leased Premises in accordance with all applicable Laws for the uses permitted
hereunder or the normal conduct of Tenant’s business) shall have been substantially completed in
accordance with the Plans as certified to by the Architect, (b) a temporary or permanent
certificate of occupancy for the Improvements have been obtained and (c) Tenant is in occupancy of
the Improvements and has opened for the normal conduct of Tenant’s business; but in no event shall
the Substantial Completion Date be later than January 31, 2007.




          “Surviving Obligations” shall mean any obligations of Tenant under this Lease, actual or
contingent, which arise on or prior to the expiration or prior termination of this Lease or which
survive such expiration or termination by their own terms.




          “Taking” shall mean (a) any taking or damaging of all or a portion of any of the Leased
Premises (i) in or by condemnation or other eminent domain proceedings pursuant to any




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Law, general or special, or (ii) by reason of any agreement with any condemnor in settlement
of or under threat of any such condemnation or other eminent domain proceeding, or (iii) by any
other means, or (b) any de facto condemnation. The Taking shall be considered to have taken place
as of the later of the date actual physical possession is taken by the condemnor, or the date on
which the right to compensation and damages accrues under the law applicable to the Leased
Premises.




          “Term” shall mean the Primary Term and the Initial Term, as extended or renewed in
accordance with the provisions hereof.




          “Termination Date” shall mean Termination Date as defined in Paragraph 18.


          “Termination Event” shall mean a Termination Event as defined in Paragraph 18.




          “Termination Fee” shall mean the amount set forth on the Termination Fee Schedule annexed
hereto as Exhibit F corresponding to the applicable date or time period of the giving of
the Termination Notice.




          “Termination
Notice” shall mean Termination Notice as defined in Paragraph
18(a).




          “Threshold Amount” shall mean (i) with respect to Paragraph 10(d), the amount of $1,000,000;
(ii) with respect to Paragraph 13(a), the amount of $1,000,000; and (iii) with respect to Paragraph
17(a) and 19(a), the amount of $1,000,000 or such lessor amount (but not less than $500,000) as
shall be permitted by Lender; in each case, as increased periodically by the CPI (as defined in
Paragraph 4 of Exhibit D) at the same time and in the same manner as Basic Rent.




          “Warranties” shall mean Warranties as defined in Paragraph 3(d).




     3. Title and Condition.



          (a) The
Leased Premises are demised and let subject to (i) the rights of any Persons in
possession of the Leased Premises, (ii) the existing state of
title of any of the Leased Premises,
including any Permitted Encumbrances, (iii) any state of facts
which an accurate survey or physical
inspection of the Leased Premises might show, (iv) all Legal Requirements,including any existing
violation of any thereof, and (v) the condition of the Leased
Premises as of the commencement of the
Term, without representation or warranty by Landlord.




          (b) LANDLORD
LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PREMISES AS
IS. TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY
OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES,
INCLUDING ANY WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS,
DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, (iii) THE
EXISTENCE OF ANY DEFECT, LATENT OR




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PATENT, (iv) LANDLORD’S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH SPECIFICATIONS, (vii)
LOCATION, (viii) USE, (ix) CONDITION, (x) MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii)
DURABILITY, (xiv) OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, HAZARDOUS CONDITION OR
HAZARDOUS ACTIVITY OR (xvi) COMPLIANCE OF THE LEASED PREMISES WITH ANY LAW OR LEGAL REQUIREMENT;
AND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT THE LEASED
PREMISES IS OF ITS SELECTION AND TO ITS SPECIFICATIONS AND THAT THE LEASED PREMISES HAS BEEN
INSPECTED BY TENANT AND IS SATISFACTORY TO IT. IN THE EVENT OF ANY DEFECT OR DEFICIENCY IN ANY OF
THE LEASED PREMISES OF ANY NATURE, WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE ANY
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING STRICT LIABILITY IN TORT). THE PROVISIONS OF THIS PARAGRAPH 3(b) HAVE BEEN NEGOTIATED,
AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, ARISING PURSUANT TO THE UNIFORM COMMERCIAL
CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR ARISING OTHERWISE.




          (c) Tenant
represents to Landlord that Tenant is already in physical possession and occupancy
of the Existing Improvements and has examined the title to the entire Leased Premises prior to the
execution and delivery of this Lease and has found the same to be satisfactory for the purposes
contemplated hereby. Tenant acknowledges that (i) Tenant has
only a leasehold right of possession
and use of the Leased Premises, as provided herein, (ii) the Existing Improvements conform to all
Legal Requirements and all Insurance Requirements in all material respects, (iii) all easements
necessary or appropriate for the use or operation of Tenant’s business at the Leased Premises shall
have been or shall be obtained as of the Final Completion Date, (iv) all contractors and
subcontractors who have performed work on or supplied materials relating to the Existing
Improvements and as to which payment is currently due and payable have been fully paid, (v) the
Existing Improvements have been fully completed in all material respects in a workmanlike manner of
first class quality; provided that, any breach or inaccuracy of any of the foregoing representations
hereinabove shall not, by itself, constitute an Event of Default under this Lease; it being agreed
that the purpose of such representations shall be to estop Tenant from asserting any position or
claim to the contrary subsequent to the date here of and to otherwise prevent Tenant from seeking to
impose or asserting any duty, obligation or liability upon Landlord to correct (or incur any costs
to correct) any facts, circumstances, or conditions (or lack thereof) at the Leased Premises.




          (d) Landlord
hereby assigns to Tenant, without recourse or warranty whatsoever, all assignable
warranties, guaranties (express or implied), indemnities and similar rights (collectively,
“Warranties”) which Landlord may have against any manufacturer, seller,engineer, contractor
or builder in respect of any of the Leased Premises, including, but
not limited to, any rights and
remedies existing under contract or pursuant to the uniform commercial code. Such assignment shall
remain in effect until the expiration or earlier termination of this Lease, whereupon such
assignment shall cease and all of the Warranties, guaranties, indemnities and other rights shall
automatically revert to Landlord. In confirmation




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of such reversion Tenant shall execute and deliver promptly any certificate or other document
reasonably required by Landlord. Landlord also agrees to execute and deliver to Tenant such further
documentation as Tenant may reasonably request in order that Tenant may have the full benefit of
the assignment effectuate or intended to be effectuated by this Paragraph 3(d). Landlord shall also
retain the right to enforce any guaranties upon the occurrence of an Event of Default. Tenant shall
enforce the Warranties in accordance with their respective terms.




          (e) Pursuant
to the Construction Agency Agreement, Tenant will cause the Expansion Improvements
to be constructed and the Expansion Equipment to be installed with funds more particularly described
in the Construction Agency Agreement in accordance with all the terms thereof, in a good and
workmanlike manner of first class quality, and in compliance with all Insurance Requirements and all
Legal Requirements. As of the Final Completion Date, all Equipment necessary or appropriate for
Tenant’s use or operation of the Leased Premises after completion of the Expansion Improvements
shall have been installed and be fully operative in all material respects.




          (f) The
Expansion Improvements will be owned by Landlord and are included within the Leased
Premises. Tenant acknowledges that the Expansion Improvements have
not yet been constructed and
that, pursuant to the Construction Agency Agreement entered into by Landlord and Tenant, Tenant has
the responsibility for causing the Expansion Improvements to be completed in accordance with the
terms of the Construction Agency Agreement. Landlord will not make any representations or warranties
with respect to the Expansion Improvements. Tenant further acknowledges that, upon occurrence of an
Event of Default, Landlord may terminate the Construction Agency Agreement, and in addition to all
other remedies of Landlord under this Lease, Landlord shall have the right but not the obligation to
complete construction of the Expansion Improvements in accordance with the Plans. If Landlord so
completes construction of the Expansion Improvements, Tenant will not be excused from paying all
Rent due pursuant to the terms of this Lease, and Landlord shall have the right to exercise any or
all of its remedies hereunder following an Event of Default. All acknowledgments of Tenant
regarding the Leased Premises contained in Paragraph 3(b) shall be deemed to have been made again as
of the Final Completion Date.




          (g) Landlord agrees to enter into, at Tenant’s expense, such Easement
Agreements, waivers, approvals or restrictions for utilities, parking or other matters as necessary
or desirable for operation of the Leased Premises as reasonably requested by Tenant, subject to
Lender’s and Landlord’s approval of the form thereof, not to be unreasonably withheld or delayed;
provided, however, that no such easement shall result in any diminution in the value or utility of
the Leased Premises for use as a warehouse/distribution facility and further provided that no such
easement shall render the use of the Leased Premises dependent upon any other property or condition
the use of the Leased Premises upon the use of any other property, each of which Tenant shall
certify to Landlord and Lender in writing delivered with Tenant’s request with respect to such
Easement. If either Landlord or Lender shall fail to notify Tenant of its approval of or disapprove
the form of any such Easement within a period of thirty (30) days from their respective receipt of
same, then such party failing to notify Tenant shall be deemed to have approved of such easement;
provided that Landlord shall be entitled to notify Tenant of Lender’s decision.




     4. Use
of Leased Premises; Quiet Enjoyment.



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          (a) Subject
to the provisions of clause (vi) of Paragraph 22(a) hereof, Tenant shall
continuously use and occupy the Leased Premises for a warehouse and
distribution facility and
ancillary office uses, and for no other purpose. Tenant shall not use
or occupy or permit any of the
Leased Premises to be used or occupied, nor do or permit anything to
be done in or on any of the
Leased Premises, in a manner which would or might (i) violate
any Law, Legal Requirement or
Permitted Encumbrance, (ii) make void or voidable or cause any
insurer to cancel any insurance
required by this Lease, or make it difficult or impossible to obtain
any such insurance at
commercially reasonable rates, (iii) make void or voidable,
cancel or cause to be cancelled or
release any of the Warranties, (iv) cause structural injury to
any of the Improvements or (v)
constitute a public or private nuisance or waste.




          (b) Subject
to the terms and provisions hereof, Tenant shall quietly hold, occupy and enjoy the
Leased Premises throughout the Term, without any hindrance, ejection
or molestation by Landlord with
respect to matters that arise after the date hereof, provided that Landlord or its agents may enter
upon and examine any of the Leased Premises at such reasonable times as Landlord may select and upon
reasonable notice to Tenant (except in the case of an emergency, in which no notice shall be
required) for the purpose of inspecting the Leased Premises, verifying compliance or non-compliance
by Tenant with its obligations hereunder and the existence or non-existence of an Event of Default
or event which with the passage of time and/or notice would constitute an Event of Default, and
during the last year of the Term for the purpose of showing the Leased Premises to prospective
Lenders and purchasers and taking such other action with respect to the Leased Premises as is
permitted by any provision hereof. Landlord shall endeavor, in each case, to minimize any
interference with Tenant’s use and occupancy of the Leased Premises during any period of time that
Landlord, its agents, employees and/or contractors have entered the Leased Premises as set forth
herein.




     5. Term.



          (a) Subject
to the provisions hereof, Tenant shall have and hold the Leased Premises for a
primary term (the “Primary Term”) commencing on the
date hereof (the “Primary Term
Commencement Date”) and terminating at midnight on the last
day of the calendar month in which
the Substantial Completion Date occurs, which shall not, in any
event, occur later than the Outside
Date (the “Primary Term Expiration Date”) and for an
initial term (such initial term, as
extended or renewed in accordance with the provisions hereof, being called the “Initial
Term”) commencing on the day (the “Initial Term Commencement Date”) immediately
following the Primary Term Expiration Date and terminating on January 31, 2022 (such date, as same
may be extended as hereinbelow provided, the “Expiration Date”); provided, however, that if
the Outside Date shall not occur on or prior to February 1, 2007 pursuant to the terms of the
Construction Agency Agreement then the Expiration Date shall be extended one (1) day for each day
after February 1, 2007 that the Outside Date occurs.




          (b) Provided
that this Lease shall not have been terminated pursuant to any provision hereof,
then on the Expiration Date, and on the fifth (5th), tenth (10th), fifteenth
(15th), twentieth (20th), twenty-fifth (25th) and thirtieth
(30th)
anniversaries of the Expiration Date (the Expiration Date and each such
anniversary being referred to herein as a “Renewal
Date”) the Term shall be deemed to have
been automatically extended for an additional period of five (5) year each (each such extension
period being referred to herein as a “Renewal Term”), unless




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Tenant shall notify Landlord in recordable form at least one (1) year prior to the next Renewal
Date that Tenant is terminating this Lease as of the next Renewal Date. Any such extension of the
Term shall be subject to all of the provisions of this Lease, as the same may be amended,
supplemented or modified (except that Tenant shall not have the right to any additional Renewal
Terms).




          (c) If Tenant exercises its option not to extend or further extend the Term, or if
Landlord has exercised its remedies under Paragraph 23 (whether or not this Lease is terminated),
then Landlord shall have the right during the remainder of the Term then in effect and, in any
event, Landlord shall have the right during the last year of the Term, to (i) advertise the
availability of the Leased Premises for sale or reletting and to erect upon the Leased Premises
signs indicating such availability and (ii) show the Leased Premises to prospective purchasers or
tenants or their agents at such reasonable times as Landlord may select. Landlord shall endeavor,
in each case, to minimize any interference with Tenant’s use and occupancy of the Leased Premises
during any period of time that Landlord, its agents, employees and/or contractors have entered the
Leased Premises as set forth herein.




     6. Basic Rent. Tenant shall pay to Landlord, as annual rent for the Leased
Premises during the Term, Basic Rent in the amounts determined in accordance with Exhibit “D”
hereto, on the dates set forth therein (each such day being a
“Basic Rent Payment Date”). Each
such rental payment shall be made in Federal Funds so as to be received by Landlord no later than
the applicable Basic Rent Payment Date at Landlord’s address first set forth above or pursuant
to wire transfer instructions delivered to Tenant from time to time and/or to such one or more
other Persons (but not to exceed two), in such proportions as Landlord may direct by twenty (20)
days prior written notice to Tenant.



     7. Additional Rent.



          (a) Tenant shall pay and discharge, as additional rent (collectively,
“Additional Rent”):




               (i) except as otherwise specifically provided herein (including,
without limitation, Paragraph 17 below), all costs and expenses of Tenant, Landlord and any other
Persons specifically referenced herein which are incurred in connection or associated with
(A) the ownership, use, non-use, occupancy, monitoring,
possession, operation, condition, design,
construction, maintenance, alteration, repair or restoration of any of the Leased Premises,
(B) the performance of any of Tenant’s obligations under
this Lease, (C) any sale or other transfer
of any of the Leased Premises to Tenant under this Lease,
(D) any Condemnation proceedings, (E) the
adjustment, settlement or compromise of any insurance claims
involving or arising from any of the
Leased Premises, (F) the prosecution, defense or settlement of
any litigation (other than between
Landlord and Tenant) involving or arising from any of the Leased Premises, this Lease, or the sale
of the Leased Premises to Landlord, (G) the exercise or enforcement by Landlord, its successors and
assigns, of any of its rights under this Lease (which are successful, in whole or in part) (H) any
amendment to or modification or termination of this Lease made at the request of Tenant, (I) Costs
of Landlord’s counsel and reasonable internal Costs of Landlord incurred in connection with any act
undertaken by Landlord (or its counsel) at the request of Tenant, or incurred in connection with any
act of Landlord performed on behalf of



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Tenant, (J) the reasonable internal Costs of Landlord incurred in connection with any act
undertaken by Landlord at the request of Tenant or Tenant’s failure to act promptly in an emergency
situation, and (K) any other items specifically required to be paid by Tenant under this Lease.
Nothing herein shall make Tenant liable for the payment (as Additional Rent or otherwise) of any
Costs or expenses (i) which result solely from the gross negligence or willful misconduct of
Landlord, (ii) as to which there has been a judicial determination that same were incurred in bad
faith by Landlord or (iii) which are incurred by Landlord as a part of its general administrative
and overhead costs or expenses, or accounting and tax compliance costs or fees, unless such costs
and/or expenses are expressly provided to be paid by Tenant hereunder.




               (ii) after the date all or any portion of any installment of Basic Rent is due and not
paid by the applicable Basic Rent Payment Date (excluding any Expansion Basic Rent for which Tenant
shall be entitled to receive a credit pursuant to Paragraph 2(b) of Exhibit D), an amount (the
“Late Charge”) equal to five percent (5%) of the amount of such unpaid installment or
portion thereof, provided, however, that with respect to the first two (2) late payments of all or
any portion of any installment of Basic Rent in any Lease Year, the Late Charge shall not be due
and payable unless the Basic Rent has not been paid within five (5) days following the due date
thereof;



               (iii) a sum equal to any additional sums (including any late charge, default penalties,
interest and fees of Lender’s counsel) which are payable by Landlord to any Lender under any Note
by reason of Tenant’s late payment or non-payment of Basic Rent or by reason of an Event of
Default; and



               (iv) interest at the rate (the “Default Rate”) of four percent (4%) over the Prime
Rate per annum on the following sums until paid in full: (A) all overdue installments of Basic Rent
from the respective due dates thereof, provided, however, that with respect to the first two (2)
late payments of all or any portion of any installment of Basic Rent in any Lease Year, interest at
the Default Rate shall not commence unless the Basic Rent has not been paid within five (5) days
following the due date thereof, (B) all overdue amounts of Additional Rent relating to obligations
which Landlord shall have paid on behalf of Tenant, from the date of payment thereof by Landlord,
and (C) all other overdue amounts of Additional Rent, from the date when any such amount becomes
overdue.



          (b) Tenant
shall pay and discharge (i) any Additional Rent referred to in Paragraph 7(a)(i)
when the same shall become due, provided that amounts which are
billed to Landlord or any third
party, but not to Tenant, shall be paid within twenty (20) days
after Landlord’s demand for payment
thereof, and (ii) any other Additional Rent, within twenty (20)days after Landlord’s demand for
payment thereof.




          (c) In
no event shall amounts payable under Paragraph 7(a)(ii), (iii) and (iv) exceed the
maximum amount permitted by applicable Law.




     8. Net
Lease; Non-Terminability.



          (a) This is a net lease and, except as otherwise expressly provided herein, all
Monetary Obligations shall be paid without notice or demand and without set-off, counterclaim,




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recoupment, abatement, suspension, deferment, diminution, deduction, reduction or defense
(collectively, a “Set-Off”).




          (b) This
Lease and the rights of Landlord and the obligations of Tenant hereunder shall not be
affected by any event or for any reason or cause whatsoever foreseen
or unforeseen.




          (c) The
obligations of Tenant hereunder shall be separate and independent covenants and
agreements, all Monetary Obligations shall continue to be payable in
all events (or, in lieu
thereof, Tenant shall pay amounts equal thereto), and the obligations
of Tenant hereunder shall
continue unaffected unless the requirement to pay or perform the same
shall have been terminated
pursuant to an express provision of this Lease. The obligation to pay
Rent or amounts equal thereto
shall not be affected by any collection of any sums by any
governmental body pursuant to any
Imposition even if such sums are characterized as “rent” by
such governmental body. All Rent payable
by Tenant hereunder shall constitute “rent” for all purposes (including Section 502(b)(6) of the
Federal Bankruptcy Code).




          (d) Except
as otherwise expressly provided herein, Tenant shall have no right and hereby waives
all rights which it may have under any Law (i) to quit, terminate or surrender
this Lease or any of the Leased Premises, or (ii) to any Set-Off of any Monetary Obligations.




     9. Payment of Impositions.



          (a) Tenant shall, before interest or penalties are due thereon, pay and discharge all
taxes (including real and personal property, franchise, sales, use, gross receipts and rent taxes),
all charges for any easement or agreement maintained for the benefit of any of the Leased Premises,
all assessments and levies, all permit, inspection and license fees, all rents and charges for
water, sewer, utility and communication services relating to any of the Leased Premises, all ground
rents and all other public charges whether of a like or different nature, even if unforeseen or
extraordinary, imposed upon or assessed against (i) Tenant, (ii) Tenant’s leasehold interest in the
Leased Premises, (iii) any of the Leased Premises, or (iv) Landlord as a result of or arising in
respect of the acquisition, ownership, occupancy, leasing, use, possession or sale of any of the
Leased Premises, any activity conducted on any of the Leased Premises, or the Rent, (collectively,
the “Impositions”); provided, that nothing herein shall obligate Tenant to pay (A) income,
excess profits or other taxes of Landlord (or Lender) which are determined on the basis of
Landlord’s (or Lender’s) net income or net worth (unless such taxes are in lieu of or a substitute
for any other tax, assessment or other charge upon or with respect to the Leased Premises which, if
it were in effect, would be payable by Tenant under the provisions hereof or by the terms of such
tax, assessment or other charge), (B) any estate, inheritance, succession, gift or similar tax
imposed on Landlord or (C) any capital gains tax imposed on Landlord in connection with the sale of
the Leased Premises to any Person. Landlord shall have the right to require Tenant to pay, together
with scheduled installments of Basic Rent, the amount of the gross receipts or rent tax, if any,
payable with respect to the amount of such installment of Basic Rent. If any Imposition may be paid
in installments without interest or penalty, Tenant shall have the option to pay such Imposition in
installments; in such event, Tenant shall be liable only for those installments which accrue or
become due and payable during the Term. Tenant shall prepare and file all tax reports required by
governmental authorities which relate to the




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Impositions. Tenant shall deliver to Landlord (1) copies of all settlements and notices
pertaining to the Impositions which may be issued by any governmental authority within ten (10)
business days after Tenant’s receipt thereof, (2) receipts for payment of all taxes required to be
paid by Tenant hereunder within thirty (30) days after the due date thereof and (3) receipts for
payment of all other Impositions within ten (10) business days after Landlord’s request therefor.




          (b) Following the occurrence of an Event of Default with respect to the payment of taxes
or insurance premiums, the maintenance of the Leased Premises, or if Landlord is required by a
Lender to pay into escrow funds necessary to pay the applicable Escrow Charges, Tenant shall pay to
Landlord such amounts (each an “Escrow Payment”) monthly or as required by such Lender (but
not more often than monthly) so that there shall be in an escrow account an amount sufficient to
pay the Escrow Charges (as hereinafter defined) as they become due. As used herein, “Escrow
Charges” shall mean real estate taxes and assessments on or with respect to the Leased Premises
or payments in lieu thereof, premiums on any insurance required by this Lease and any reserves for
capital improvements. Landlord shall determine the amount of the Escrow Charges (it being agreed
that if required by a Lender, such amounts shall equal any corresponding escrow installments
required to be paid by Landlord) and the amount of each Escrow Payment. As long as the Escrow
Payments are being held by Landlord the Escrow Payments shall not be commingled with other funds of
Landlord or other Persons and interest thereon shall accrue for the benefit of Tenant from the date
such monies are received and invested until the date such monies are disbursed to pay Escrow
Charges. Landlord shall apply the Escrow Payments to the payment of the Escrow Charges in such
order or priority as Landlord shall reasonably determine or as required by Law. If at any time the
Escrow Payments theretofore paid to Landlord shall be insufficient for the payment of the Escrow
Charges, Tenant, within thirty (30) days after Landlord’s demand therefor, shall pay the amount of
the deficiency to Landlord.




     10. Compliance with Laws and Easement Agreements, Environmental Matters.



          (a) Tenant
shall, at its expense, comply with and conform to, and cause the Leased Premises and
any other Person occupying any part of the Leased Premises to comply with and conform to, all
Insurance Requirements and Legal Requirements (including all applicable Environmental Laws). Tenant
shall not at any time (i) cause, permit or suffer to occur any Environmental Violation or (ii)
permit any sublessee, assignee or other Person occupying the Leased Premises under or through Tenant
to cause, permit or suffer to occur any Environmental Violation and, at the request of Landlord or
Lender, Tenant shall promptly remediate or undertake any other appropriate response action to
correct any existing Environmental Violation, however immaterial, and (iii) without the prior
written consent of Landlord and Lender, permit any drilling or exploration for or extraction,
removal, or production of any minerals from the surface or the subsurface of the Land, regardless of
the depth thereof or the method of mining or extraction thereof. Any and all reports prepared for or
by Landlord with respect to the Leased Premises shall be for the sole benefit of Landlord and Lender
and no other Person shall have the right to rely on any such reports.




          (b) Tenant,
at its sole cost and expense, will at all times promptly and faithfully abide by,
discharge and perform all of the covenants, conditions and agreements contained in any Easement
Agreement on the part of Landlord or the occupier to be kept and




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performed thereunder. Tenant will not alter, modify, amend or terminate any Easement
Agreement, give any consent or approval thereunder, or enter into any new Easement Agreement
without, in each case, the prior written consent of Landlord.




          (c) Upon
prior written notice from Landlord, Tenant shall permit such persons as Landlord may
designate (“Site Reviewers”) to visit the Leased
Premises and perform, as agents of Tenant,
environmental site investigations and assessments (“Site
Assessments”) on the Leased
Premises (i) in connection with any sale, financing or
refinancing of the Leased Premises, (ii)
within the six month period prior to the expiration of the Term,
(iii) if required by Lender or the
terms of any credit facility to which Landlord is bound, (iv) if
an Event of Default exists, or (v)
at any other time that, in the opinion of Landlord or Lender, a
reasonable basis exists to believe
that an Environmental Violation or any condition that could
reasonably be expected to result in any
Environmental Violation exists. Such Site Assessments may include
both above and below the ground
testing for Environmental Violations and such other tests as may be necessary, in the opinion of the
Site Reviewers, to conduct the Site Assessments. Tenant shall supply to the Site Reviewers such
historical and operational information regarding the Leased Premises as may be reasonably requested
by the Site Reviewers to facilitate the Site Assessments, and shall make available for meetings with
the Site Reviewers appropriate personnel having knowledge of such matters. The cost of performing
and reporting Site Assessments (A) under clause (i), if the sale is to Tenant or an affiliate or
designee of Tenant, (B) under clause (ii), but only one time, and (C) under clauses (iv) and (v),
but only if an Environmental Violation is actually discovered, shall be paid by Tenant; and in all
other instances shall be paid by Landlord. Landlord shall cooperate with Tenant, in each case,
to minimize any interference with Tenant’s use and occupancy of
the Leased Premises during any period
of time that the Site Reviewers have entered the Leased Premises as set forth herein.




          (d) If an Environmental Violation occurs or is found to exist and, in
Landlord’s reasonable judgment, the cost of remediation of, or other response action with respect
to, the same is likely to exceed the Threshold Amount, Tenant shall provide to Landlord, within
twenty (20) days after Landlord’s request therefor, adequate financial assurances that Tenant will
effect such remediation in accordance with applicable Environmental Laws. Such financial assurances
shall be a bond or letter of credit reasonably satisfactory to Landlord in form and substance and
in an amount equal to or greater than Landlord’s reasonable estimate, based upon a Site Assessment
performed pursuant to Paragraph 10(c), of the anticipated cost of such remedial action.




          (e) Notwithstanding
any other provision of this Lease, if an Environmental Violation occurs or
is found to exist and the Term would otherwise terminate or expire,
then, at the option of Landlord,
the Term shall be automatically extended beyond the date of
termination or expiration and this Lease
shall remain in full force and effect (except that Tenant shall have
no obligation to remain in
physical occupancy of the Leased Premises) beyond such date until the earlier to occur of (i) the
completion of all remedial action in accordance with applicable Environmental Laws or (ii) the date
specified in a written notice from Landlord to Tenant terminating this Lease.




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          (f) If
Tenant fails to correct any Environmental Violation which occurs or is found to
exist, Landlord shall have the right (but no obligation) to take any
and all actions as Landlord
shall deem necessary or advisable in order to cure such Environmental Violation.




          (g) Tenant
shall notify Landlord immediately after becoming aware of any Environmental
Violation (or alleged Environmental Violation) or noncompliance with
any of the covenants contained
in this Paragraph 10 and shall forward to Landlord immediately
upon receipt thereof copies of all
orders, reports, notices, permits, applications or other communications relating to any such
violation or noncompliance.




          (h) All future leases, subleases or concession agreements relating to the Leased Premises
entered into by Tenant shall contain covenants of the other party not to at any time (i) cause any
Environmental Violation to occur or (ii) permit any Person occupying the Leased Premises through
said subtenant or concessionaire to cause any Environmental Violation to occur.




     11. Liens; Recording.



          (a) Tenant
shall not, directly or indirectly, create or permit to be created or to remain and
shall promptly discharge or remove any lien, levy or encumbrance on
any of the Leased Premises or on
any Rent or any other sums payable by Tenant under this Lease, other than any Mortgage or
Assignment, the Permitted Encumbrances and any mortgage, lien, encumbrance or other charge created
by or resulting solely from any act or omission of Landlord. NOTICE IS HEREBY GIVEN THAT LANDLORD
SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR
TO BE FURNISHED TO TENANT OR TO
ANYONE HOLDING OR OCCUPYING ANY OF THE LEASED PREMISES THROUGH OR UNDER TENANT, AND THAT NO
MECHANICS’ OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LANDLORD IN AND TO ANY OF THE LEASED PREMISES.
LANDLORD MAY AT ANY TIME, AND AT
LANDLORD’S REQUEST TENANT SHALL PROMPTLY, POST ANY NOTICES ON THE LEASED PREMISES REGARDING SUCH
NON-LIABILITY OF LANDLORD.




          (b) Tenant shall execute, deliver and record, file or register (collectively,“record”)
all such instruments as may be required or permitted by any present
or future Law in order to
evidence the respective interests of Landlord and Tenant in the
Leased Premises, and shall cause a
memorandum of this Lease (or, if such a memorandum cannot be
recorded, this Lease), and any
supplement hereto or thereto, to be recorded in such manner and in
such places as may be required or
permitted by any present or future Law in order to protect the
validity and priority of this Lease.




     12. Maintenance and Repair.



          (a) Tenant shall at all times maintain the Leased Premises in as good repair and appearance
as they are in on the Final Completion Date, except for ordinary wear and tear, and fit to be
used for their intended use in accordance with the better of the practices generally recognized
as then acceptable by other companies in its industry or observed by Tenant with




-18-









 




respect to the other real properties owned or operated by it, and, in the case of the
Equipment, in as good mechanical condition as it was on the later of the Final Completion Date or
the date of its installation, except for ordinary wear and tear. Tenant shall take every other
action necessary or appropriate for the preservation and safety of the Leased Premises. Tenant
shall promptly make all Alterations of every kind and nature, whether foreseen or unforeseen, which
may be required to comply with the foregoing requirements of this Paragraph 12(a). Landlord shall
not be required to make any Alteration, whether foreseen or unforeseen, or to maintain any of the
Leased Premises in any way, and Tenant hereby expressly waives any right which may be provided for
in any Law now or hereafter in effect to make Alterations at the expense of Landlord or to require
Landlord to make Alterations. Any Alteration made by Tenant pursuant to this Paragraph 12 shall be
made in conformity with the provisions of Paragraph 13.




          (b) If any Improvement, now or hereafter constructed, shall (i) encroach upon any setback
or any property, street or right-of-way adjoining the Leased Premises, (ii) violate the provisions
of any restrictive covenant affecting the Leased Premises, (iii) hinder or obstruct any easement or
right-of-way to which any of the Leased Premises is subject or (iv) impair the rights of others in,
to or under any of the foregoing, Tenant shall, promptly after receiving notice or otherwise
acquiring knowledge thereof, either (A) obtain from all necessary parties waivers or settlements of
all claims, liabilities and damages resulting from each such encroachment, violation, hindrance,
obstruction or impairment, whether the same shall affect Landlord, Tenant or both, or (B) take such
action as shall be necessary to remove all such encroachments, hindrances or obstructions and to
end all such violations or impairments, including, if necessary, making Alterations.




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     13. Alterations and Improvements.



          (a) Tenant
shall have the right, without having obtained the prior written consent of Landlord
and Lender and provided that no Event of Default then exists,
(i) to make non-structural Alterations
or a series of related non-structural Alterations within any
consecutive twelve (12) month period
that, as to any such Alterations or series of related Alterations
within any consecutive twelve (12)
month period, do not cost in excess of the Threshold Amount and (ii) to install Equipment in the
Improvements or accessions to the Equipment within any consecutive twelve (12) month period that, as
to such Equipment or accessions, do not cost in excess of the Threshold Amount, so long as at the
time of construction or installation of any such Alterations or Equipment no Event of Default exists
and the value and utility of the Leased Premises is not diminished thereby. If (i) the cost of any
non-structural Alterations, series of related non-structural Alterations, Equipment or accessions
thereto within any consecutive twelve (12) month period is in excess of the Threshold Amount, (ii)
Tenant desires to make structural Alterations to the Leased Premises, or (iii) Tenant desires to
construct upon the Land any additional buildings, then in each case, the prior written consent of
Landlord shall be required; provided that; Landlord shall not unreasonably withhold, delay or
condition its consent to any Alternations above the Threshold Amount, so long as value and/or
utility of the Leased Premises is not diminished thereby. Landlord shall have the right to require
Tenant to remove any Alterations except for those Alterations required by Law or expressly permitted
hereunder without Landlord’s consent, or for which Landlord has agreed in writing that removal will
not be required.




          (b) If
Tenant makes any Alterations pursuant to this Paragraph 13 or as required by Paragraph
12 or 17 (such Alterations and actions being hereinafter collectively referred to as
“Work”), whether or not Landlord’s consent is
required, then (i) the market value of the
Leased Premises shall not be lessened by any such Work or its
usefulness impaired, (ii) all such
Work shall be performed by Tenant in a good and workmanlike manner,
(iii) all such Work shall be
expeditiously completed in compliance with all Legal Requirements,
(iv) all such Work shall comply
with the Insurance Requirements, (v) if any such Work involves
the replacement of Equipment or parts
thereto, all replacement Equipment or parts shall have a value and
useful life equal to the greater
of (A) the value and useful life on the Final Completion Date of
the Equipment being replaced or (B)
the value and useful life of the Equipment being replaced immediately prior to the occurrence of the
event which required its replacement (assuming such replaced Equipment was then in the condition
required by this Lease), (vi) Tenant shall promptly discharge or remove all liens filed against any
of the Leased Premises arising out of such Work, (vii) Tenant shall procure and pay for all permits
and licenses required in connection with any such Work, (viii) all such Work shall be the property
of Landlord and shall be subject to this Lease, and Tenant shall execute and deliver to Landlord any
document requested by Landlord evidencing the assignment to Landlord of all estate, right, title and
interest (other than the leasehold estate created hereby) of Tenant or any other Person thereto or
therein, and (ix) Tenant shall comply, to the extent requested by Landlord or required by this
Lease, with the provisions of Paragraphs 12(a) and 19(a), whether or not such Work involves
restoration of the Leased Premises.




     14. Permitted Contests. Notwithstanding any other provision of this Lease,
Tenant shall not be required to (a) pay any Imposition, (b) comply with any Legal Requirement, (c)



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discharge or remove any lien referred to in Paragraph 11 or 13 or (d) take any action with
respect to any encroachment, violation, hindrance, obstruction or impairment referred to in
Paragraph 12(b) (such non-compliance with the terms hereof being hereinafter referred to
collectively as “Permitted Violations”) and may dispute or contest the same, so long as at the time
of such contest no other Event of Default has occurred and is then continuing and so long as Tenant
shall contest, in good faith, the existence, amount or validity thereof, the amount of the damages
caused thereby, or the extent of its or Landlord’s liability therefor by appropriate proceedings
which shall operate during the pendency thereof to prevent or stay (i) the collection of, or other
realization upon, the Permitted Violation so contested, (ii) the sale, forfeiture or loss of any of
the Leased Premises or any Rent to satisfy or to pay any damages caused by any Permitted Violation,
(iii) any interference with the use or occupancy of any of the Leased Premises, (iv) any
interference with the payment of any Rent, or (v) the cancellation or increase in the rate of any
insurance policy or a statement by the carrier that coverage will be denied or (vi) the enforcement
or execution of any injunction, order or Legal Requirement with respect to the Permitted Violation.
Tenant shall provide Landlord security which is satisfactory, in Landlord’s reasonable judgment, to
assure that such Permitted Violation is corrected, including all Costs, interest and penalties that
may be incurred or become due in connection therewith. While any proceedings which comply with the
requirements of this Paragraph 14 are pending and the required security is held by Landlord,
Landlord shall not have the right to correct any Permitted Violation thereby being contested unless
Landlord is required by law to correct such Permitted Violation and Tenant’s contest does not
prevent or stay such requirement as to Landlord. Each such contest shall be promptly and diligently
prosecuted by Tenant to a final conclusion, except that Tenant, so long as the conditions of this
Paragraph 14 are at all times complied with, has the right to attempt to settle or compromise such
contest through negotiations. Tenant shall pay any and all losses, judgments, decrees and Costs in
connection with any such contest and shall, promptly after the final determination of such contest,
fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, together with all penalties, fines,
interest and Costs thereof or in connection therewith, and perform all acts the performance of
which shall be ordered or decreed as a result thereof. No such contest shall subject Landlord to
the risk of any civil or criminal liability.




     15. Indemnification.



          (a) Tenant shall pay, protect, indemnify, defend, save and hold harmless Landlord,
Lender and all other Persons described in Paragraph 30 (each an “Indemnitee”) from and
against any and all liabilities, losses, damages (including punitive damages), penalties, Costs
(including attorneys’ fees and costs), causes of action, suits, claims, demands or judgments of any
nature whatsoever, howsoever caused, without regard to the form of action and whether based on
strict liability, negligence or any other theory of recovery at law or in equity arising from (i)
any matter pertaining to the acquisition (or the negotiations leading thereto), ownership, use,
non-use, occupancy or operation or condition, design or construction, maintenance, repair or
restoration of the Leased Premises, (ii) any casualty in any manner arising from the Leased
Premises, whether or not Indemnitee has or should have knowledge or notice of any defect or
condition causing or contributing to said casualty, (iii) any violation by Tenant of any provision
of this Lease, any contract or agreement to which Tenant is a party, any Legal Requirement or any
Permitted Encumbrance or any encumbrance Tenant consented to or the Mortgage or




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Assignment or (iv) any alleged, threatened or actual Environmental Violation, including (A)
liability for response costs and for costs of removal and remedial action incurred by the United
States Government, any state or local governmental unit or any other Person, or damages from injury
to or destruction or loss of natural resources, including the reasonable costs of assessing such
injury, destruction or loss, incurred pursuant to Section 107 of CERCLA, or any successor section
or act or provision of any similar state or local Law, (B) liability for costs and expenses of
abatement, correction or clean-up, fines, damages, response costs or penalties which arise from the
provisions of any of the other Environmental Laws and (C) liability for personal injury or property
damage arising under any statutory or common-law tort theory, including damages assessed for the
maintenance of a public or private nuisance or for carrying on of a dangerous activity; provided
that, the foregoing indemnification obligations shall not be applicable to any Claim resulting from
the gross negligence or willful misconduct of Landlord (it being further agreed that for purposes
of this Paragraph 15, as between Landlord and Tenant, in no event shall any omission or failure to
act on the part of Landlord, or Landlord’s mere absence from the Leased Premises or failure to be
aware of any condition thereat, be deemed to constitute gross negligence).




          (b) In
case any action or proceeding is brought against any Indemnitee by reason of any such
claim, (i) Tenant may, except in the event of a conflict of
interest or a dispute between Tenant and
any such Indemnitee or during the continuance of an Event of Default, retain its own counsel and
defend such action (it being understood that Landlord may employ counsel of its choice to monitor
the defense of any such action, the actual and reasonable cost of which shall be paid by Tenant) and
(ii) such Indemnitee shall notify Tenant to resist or defend such action or proceeding by retaining
counsel reasonably satisfactory to such Indemnitee, and such Indemnitee will cooperate and assist in
the defense of such action or proceeding if reasonably requested so to do by Tenant. In the event of
a conflict of interest or dispute or during the continuance of an Event of Default, Landlord shall
have the right to select counsel,and the cost of such counsel shall by paid by Tenant.




          (c) The
obligations of Tenant under this Paragraph 15 shall survive any termination,
expiration or rejection in bankruptcy of this Lease.




     16. Insurance.



          (a) Tenant shall maintain or cause to be maintained the following insurance on or in
connection with the Leased Premises:




               (i) Insurance against all risk of physical loss or damage to the
Improvements and Equipment as provided under “Special Causes of Loss” form coverage, and including
customarily excluded perils of hail, windstorm, flood coverage, earthquake and, to the extent
required by Lender, terrorism insurance, in amounts no less than the actual replacement cost of the
Improvements and Equipment; provided that, if Tenant’s insurance company is unable or unwilling to
include any of all of such excluded perils, Tenant shall have the option of purchasing coverage
against such perils from another insurer on a “Difference in Conditions” form or through a
stand-alone policy. Such policies shall contain Replacement Cost and Agreed Amount Endorsements,
and “Law and Ordinance” coverage (with commercially reasonable limits consistent with coverages
then customarily required by prudent institutional landlords or



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lenders for properties similarly situated). Such policies and endorsements shall contain
deductibles not more than $100,000 per occurrence.




               (ii) Commercial General Liability Insurance and Business Automobile Liability Insurance
(including Non-Owned and Hired Automobile Liability) against claims for personal and bodily injury,
death or property damage occurring on, in or as a result of the use of the Leased Premises, in an
amount not less than $15,000,000 per occurrence/annual aggregate, on a claims occurrence basis and
containing a deductible of not more than $350,000 per occurrence, or such lower deductible as shall
be required by Lender (but in no event less than $250,000).



               (iii) Workers’ compensation and employers’ liability insurance
covering all persons employed by Tenant in connection with any work done on or about any of the
Leased Premises.



               (iv) Comprehensive Boiler and Machinery Insurance on any of the Equipment or any other
equipment on or in the Leased Premises, in an amount not less than $5,000,000 per accident for
damage to property (and which may be carried as part of the coverage required under clause (i)
above or pursuant to a separate policy or endorsement). Either such Boiler and Machinery policy or
the Special Causes of Loss policy required in clause (i) above shall include at least $1,000,000
per incidence for Off-Premises Service Interruption and Expediting Expenses and may contain a
deductible not to exceed $100,000.



               (v) Business Income/Extra Expense Insurance at limits sufficient to cover 100% of the
period of indemnity not less than twelve (12) months from time of loss.



               (vi) During
the construction of the Improvements and during any period in which substantial Alterations at the Leased Premises are being undertaken, builder’s risk
insurance covering the total completed value, including all hard and soft costs (which shall
include business interruption coverage) with respect to the Improvements being constructed, altered
or repaired (on a completed value, non-reporting basis), replacement cost of work performed and
equipment, supplies and materials furnished in connection with such construction, alteration or
repair of Improvements or Equipment, together with such other endorsements as Landlord may
reasonably require, and general liability, worker’s compensation and automobile liability insurance
with respect to the Improvements being constructed, altered or repaired.



               (vii) Such other insurance (or other terms with respect to any insurance required pursuant
to this Paragraph 16, including without limitation amounts of coverage, deductibles, form of
mortgagee clause) on or in connection with any of the Leased Premises as Landlord or Lender may
reasonably require; provided such coverages are consistent as to types and amounts, with coverages
then customarily required by prudent institutional landlords or lenders for properties similarly
situated. In addition, with respect to the insurance coverages required to be maintained pursuant
to clauses (i) through (vi) of this Paragraph 16(a), Tenant shall use commercially reasonable
efforts, consistent with those of prudent owners of institutional quality commercial real estate,
to maintain insurance coverage against any loss, damage or injury resulting from acts of terrorism.



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          (b) The
insurance required by Paragraph 16(a) shall be written by companies having a Best’s
rating of A:X or above and a claims paying ability rating of AA or
better by Standard & Poor’s
Rating Services, a division of the McGraw Hill Companies, Inc. or
equivalent rating agency approved
by Landlord and Lender in their sole discretion and are authorized to write insurance policies by,
the State Insurance Department (or its equivalent) for the State. The insurance policies (i) shall
be for such terms as Landlord may reasonably approve and
(ii) shall be in amounts sufficient at all
times to satisfy any coinsurance requirements thereof. If said insurance or any part thereof shall
expire, be withdrawn, become void, voidable, unreliable or unsafe for any reason, including a breach
of any condition thereof by Tenant or the failure or impairment of the capital of any insurer, or if
for any other reason whatsoever said insurance shall become reasonably unsatisfactory to Landlord,
Tenant shall immediately obtain new or additional insurance reasonably satisfactory to Landlord.




          (c) Each
insurance policy referred to in clauses (i), (iv), (v) and (vi) of Paragraph 16(a)
shall contain standard non-contributory mortgagee clauses in favor of
and acceptable to Lender. Each
policy required by any provision of Paragraph 16(a), except
clause (iii) thereof, shall provide that
it may not be cancelled, substantially modified or allowed to lapse on any renewal date except after
thirty (30) days’ prior written notice to Landlord and Lender.




          (d) Tenant
shall pay as they become due all premiums for the insurance required by Paragraph
16(a), shall renew or replace each policy and deliver to Landlord
evidence of the payment of the
full premium therefor or installment then due at least ten
(10) days prior to the expiration date of
such policy, and shall promptly deliver to Landlord all original
certificates of insurance or, if
required by Lender, original or certified policies. All certificates
of insurance (including
liability coverage) provided to Landlord and Lender shall be on ACORD
Form 27 (or its equivalent).




          (e) Anything
in this Paragraph 16 to the contrary notwithstanding, any insurance which Tenant
is required to obtain pursuant to Paragraph 16(a) may be carried
under a “blanket” policy or
policies covering other properties of Tenant or under an
“umbrella” policy or policies covering
other liabilities of Tenant, as applicable; provided that, such
blanket or umbrella policy or
policies otherwise comply with the provisions of this
Paragraph 16, and upon request, Tenant shall
provide to Landlord a Statement of Values which may be reviewed annually and shall be amended to the
extent determined necessary by Landlord based on revised Replacement Cost Valuations. The original
or a certified copy of each such blanket or umbrella policy shall promptly be delivered to Landlord.
Notwithstanding anything to the contrary contained in this Lease, any insurance required to be
maintained by Tenant hereunder (other than Workers’ compensation and employers’ liability insurance
under item (a) (iii) above) may be maintained, in whole or in part, under a plan of self-insurance;
provided that and only so long as (1) Tenant is not under bankruptcy protection, (2) Tenant’s senior
secured debt has a rating of at least AA (or such lower rating as shall be acceptable to Lender in
its sole discretion) by Standard & Poor’s Rating Services, a division of the McGraw Hill Companies,
Inc. or equivalent rating agency approved by Landlord and Lender in their sole discretion, and (3)
Tenant’s tangible net worth exceeds Two Hundred Million Dollars ($200,000,000) as shown in its most
recent audited financial statement, or if Tenant’s financial statements are reported on a
consolidated basis with a parent corporation, then as certified by an officer of Tenant. Any
proceeds to be made available or payable by Tenant under a program of self-insurance shall be
payable in the same manner and




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to or for the benefit of the same party as a third party insurer’s proceeds under the provisions of
Paragraph (h) below and the other provisions of this Paragraph 16, and shall be paid into, held,
and disbursed from, the Restoration Fund, as and when applicable, in accordance with Paragraph 19
hereof. If Tenant shall, at any time subsequent to the institution of a self-insurance program
hereunder, fail to meet the criteria contained in any one or more of clauses (1), (2) and (3)
above, then Tenant shall, within five (5) days of written demand from Landlord, provide Landlord
with written evidence (including appropriate ACORD certificates) that Tenant has obtained and shall
keep in effect third party insurance coverage meeting the requirements of this Paragraph 16.




          (f) Tenant shall not carry separate insurance concurrent in form or
contributing in the event of a Casualty with that required in this Paragraph 16 unless (i) Landlord
and Lender are included therein as named insureds, with loss payable as provided herein, and (ii)
such separate insurance complies with the other provisions of this Paragraph 16. Tenant shall
immediately notify Landlord of such separate insurance and shall deliver to Landlord the original
policies or certified copies thereof.




          (g) Each
policy (other than workers’ compensation coverage) shall contain an effective waiver
by the carrier against all claims for payment of insurance premiums
against Landlord and shall
contain a full waiver of subrogation against the Landlord.




          (h) The insurance referred to in Paragraphs 16(a)(i), 16(a)(iv) and 16(a)(vi) shall name
Landlord as loss payee and Lender as loss payee and mortgagee, and Tenant as its interest may
appear. The insurance referred to in Paragraph 16(a)(ii) shall name Landlord and Lender as
additional insureds, and the insurance referred to in Paragraph 16(a)(v) shall name Landlord as
insured and Lender and Landlord as loss payee to the extent of the Rent payable to or for the
benefit of Landlord as its interest appears under the Lease. The proceeds of any insurance required
under Paragraph 16(a) shall be payable as follows:




               (i) proceeds payable under clauses (ii), (iii) and (iv) of Paragraph
16(a) and proceeds attributable to the general liability coverage of Builder’s Risk insurance under
clause (vi) of Paragraph 16(a) shall be payable to the Person entitled to receive such proceeds;
and



               (ii) proceeds of insurance required under clause (i) of Paragraph 16(a) and proceeds
attributable to Builder’s Risk insurance (other than its general liability coverage provisions)
under clause (vi) of Paragraph 16(a) shall be payable and applied as set forth in Paragraph 17 or,
if applicable, Paragraph 18. Tenant shall apply the Net Award to restoration of the Leased Premises
in accordance with the applicable provisions of this Lease unless a Termination Event shall have
occurred and Tenant has given a Termination Notice.



     17. Casualty and Condemnation.



          (a) If any substantial Casualty to the Leased Premises occurs, Tenant shall give
Landlord and Lender prompt notice thereof. If the insurance proceeds for such Casualty are
reasonably estimated by Tenant to be less than the Threshold Amount, then so long as no Event of
Default shall then exist, Tenant is hereby authorized to adjust, collect and compromise all claims
under any of the insurance policies required by Paragraph 16(a) (except public liability




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insurance claims payable to a Person other than Tenant, Landlord or Lender) and to execute and
deliver on behalf of Landlord all necessary proofs of loss, receipts, vouchers and releases
required by the insurers. If the insurance proceeds are reasonably estimated by Tenant to be in
excess of the Threshold Amount, Tenant shall be entitled to enter into negotiations to adjust,
collect or compromise any claim of the Net Award payable in connection with a Casualty and Landlord
may participate in such negotiations with Tenant therein; provided that, any final adjustment,
settlement or compromise of any such claim shall be subject to the prior written approval of
Landlord (not to be unreasonably withheld or delayed), but in any event, Landlord shall have the
right to prosecute or contest, or to require Tenant to prosecute or contest, any such claim,
adjustment, settlement or compromise. Notwithstanding the foregoing, if an Event of Default exists,
Tenant shall not be entitled to adjust, collect or compromise any claim or to participate with
Landlord in any adjustment, collection and compromise of any Net Award payable in connection with a
Casualty except upon the express prior written consent of Landlord, which consent may be granted or
withheld by Landlord in its sole discretion. Nevertheless, Landlord shall, in any event, have the
right to prosecute or contest, or to require Tenant to prosecute or contest, any such claim,
adjustment, settlement or compromise. Tenant agrees to sign, upon the request of Landlord, all such
proofs of loss, receipts, vouchers and releases. If the Net Award is in excess of the Threshold
Amount or an Event of Default has occurred and is then continuing, each insurer is hereby
authorized and directed to make payment under said policies, including return of unearned premiums,
directly to Landlord or, if required by the Mortgage, to Lender instead of to Landlord and Tenant
jointly, and Tenant hereby appoints each of Landlord and Lender as Tenant’s attorneys-in-fact to
endorse any draft therefor. The rights of Landlord under this Paragraph 17(a) shall be extended to
Lender if and to the extent that any Mortgage so provides.




          (b) Tenant, immediately upon receiving a Condemnation Notice, shall notify Landlord and
Lender thereof. So long as no Event of Default exists, Tenant is authorized to collect, settle and
compromise the amount of any Net Award and Landlord shall have the right to participate in such
negotiations with Tenant. If an Event of Default exists, Landlord shall be authorized to collect,
settle and compromise the amount of any Net Award and Tenant shall not be entitled to participate
with Landlord in any Condemnation proceeding or negotiations under threat thereof or to contest the
Condemnation or the amount of the Net Award therefor. No final or binding agreement with any
condemnor in settlement or under threat of any Condemnation shall be made by Tenant without the
written consent of Landlord. Subject to the provisions of this Paragraph 17(b), Tenant hereby
irrevocably assigns to Landlord any award or payment to which Tenant is or may be entitled by
reason of any Condemnation, whether the same shall be paid or payable for Tenant’s leasehold
interest hereunder or otherwise; but nothing in this Lease shall impair Tenant’s right to any award
or payment on account of Tenant’s trade fixtures, equipment or other tangible property which is not
part of the Equipment, moving expenses or loss of business, if available, to the extent that and so
long as (i) Tenant shall have the right to make, and does make, a separate claim therefor against
the condemnor and (ii) such claim does not in any way reduce either the amount of the award
otherwise payable to Landlord for the Condemnation of Landlord’s fee interest in the Leased
Premises or the amount of the award (if any) otherwise payable for the Condemnation of Tenant’s
leasehold interest hereunder. The rights of Landlord under this Paragraph 17(b) shall also be
extended to Lender if and to the extent that any Mortgage so provides.




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          (c) Subject
to the provisions of Paragraph 18(a) with respect to a Termination Event, if any
Casualty (whether or not insured against) or Condemnation shall
occur, this Lease shall continue
notwithstanding such event, and there shall be no abatement or
reduction of any Monetary
Obligations. Promptly after such Casualty or Partial Condemnation,
Tenant, as required in Paragraphs
12(a) and 13(b), shall commence and diligently continue to restore
the Leased Premises as nearly as
possible to their value, condition and character immediately prior to such event (assuming the
Leased Premises to have been in condition required by this Lease) whether or not the Net Award is
sufficient therefor. So long as no Event of Default exists, any Net Award up to and including the
Threshold Amount shall be paid by Landlord to Tenant and Tenant shall restore the Leased Premises in
accordance with the requirements of Paragraphs 12(a) and 13(b) of this Lease. Any Net Award in
excess of the Threshold Amount (or an amount equal to the amount of the Net Award that would have
otherwise been made available in the Restoration Fund if same had not been applied by Lender under
the terms of the Mortgage), shall be made available by Landlord (or Lender, if required by the terms
of any Mortgage) to Tenant for the restoration of any of the Leased Premises pursuant to and in
accordance with the provisions of Paragraph 19 hereof. If any Condemnation which is not a Partial
Condemnation shall occur, Tenant shall comply with the terms and conditions of Paragraph 18.




          (d) In
the event of a Requisition of any of the Leased Premises, if any Net Award payable by
reason of such Requisition is (i) retained by Landlord, each
installment of Basic Rent payable on or
after the date on which the Net Award is paid to Landlord shall be reduced by a fraction, the
denominator of which shall be the total amount of all Basic Rent due from such date to and including
the last Basic Rent Payment Date for the then existing Term and the numerator of which shall be the
amount of such Net Award retained by Landlord, or (ii) paid to Lender, then each installment of
Basic Rent thereafter payable shall be reduced in the same amount and for the same period as
payments are reduced under the Note until such Net Award has been applied in full or until the Term
has expired, whichever first occurs.




          (e) Notwithstanding
anything contained in this Lease to the contrary, if the Leased Premises
suffer a Material Casualty at any time during the last two
(2) years of the Term of this Lease
(including any exercised or deemed exercised Renewal Term), then, in
any such event, Tenant may
elect to terminate this Lease by written notice thereof given to
Landlord in accordance with
Paragraph 18(b), within ten (10) days after the Damage
Determination Date. As used herein (i) a
“Material Casualty” shall mean any casualty wherein
the estimated cost of the rebuilding,
restoration and/or repair of the Leased Premises in accordance with
this Lease exceeds 50% of the
estimated true valuation of the Leased Premises as then determined by
the tax assessor’s office
having jurisdiction over the Leased Premises, and (ii) the
“Damage Determination Date” shall
mean the date that a good faith written determination of the
estimated cost of the rebuilding,
restoration or repair, as the case may be, of the Leased Premised by
a duly licensed and regionally
or nationally recognized architectural or engineering consultant
selected by Tenant and reasonably
acceptable to Landlord is delivered to Tenant and Landlord, but in no event more than ninety (90)
days after the date that the casualty in question occurs. Notwithstanding the foregoing, in no event
shall Tenant be entitled to terminate this Lease under this Paragraph 17(e) and Paragraph 18 if (x)
at the time of such Material Casualty the insurance coverage required to be maintained by Tenant
under this Lease has been cancelled, terminated, lapsed or is otherwise unavailable for any reason,
or if for any other reason such Material Casualty is an uninsured event or (y) the Net Award
available from the insurer (together with any sum that Tenant commits in writing to pay to Landlord
(or at Landlord’s direction) is not




-27-









 




sufficient to pay and satisfy in full the outstanding principal balance and scheduled interest
under the first mortgage Loan encumbering the Leased Premises.




     18. Termination Events.



          (a) If
(i) a Material Casualty shall occur under the provisions of Paragraph 17(e) above and
pursuant to the terms thereof Tenant is entitled to terminate this
Lease, (ii) the entire Leased
Premises shall be taken by a Taking, or (iii) any substantial
portion of the Leased Premises shall
be taken by a Taking and, in any such case under this clause (iii),
Tenant certifies and covenants
to Landlord that the nature and/or extent of the Taking renders the
continued operation of Tenant’s
business at the Leased Premises for the uses permitted and intended
under this Lease no longer
economically practicable at the remaining portion of Leased Premises
(each of the events described
in the above clauses (i), (ii) and (iii) shall hereinafter be referred to as a“Termination
Event”), then, Tenant shall (x) within sixty
(60) days after Tenant receives a Condemnation
Notice, or (y) in the case of a Material Casualty, within the
time period proscribed in Paragraph
17(e), give to Landlord written notice in the form described in
Paragraph 18(b) of the Tenant’s
election to terminate this Lease (a “Termination
Notice”), and if Tenant fails to timely
deliver, or otherwise elects not to give, the Termination Notice to
Landlord, then Tenant shall
rebuild, restore or repair, as applicable, the Leased Premises in
accordance with Paragraphs 17 and
19 (except in the case of total Taking under clause (ii) above)
and, in any event, all Monetary
Obligations of Tenant under this Lease shall continue unabated.




          (b) A
Termination Notice under clauses (ii) or (iii) of Paragraph 18(a) above shall contain (1)
notice of Tenant’s intention to terminate this Lease on the
first Basic Rent Payment Date which
occurs at least thirty (30) days after the date that Landlord
and Tenant are required to vacate and
surrender the Leased Premises or portion thereof to or at the
direction of the condemning authority
(such date, the “Termination Date”), (2) a
binding and irrevocable offer of Tenant to pay to
Landlord the Termination Fee, and (3) if the Termination Event
is an event described in Paragraph
18(a)(iii), the certification described therein and a certified resolution of the Board of Directors
of Tenant authorizing the same. A Termination Notice under clause (i) only of Paragraph 18(a) above
shall contain (1) notice of Tenant’s intention to terminate this Lease on the first Basic Rent
Payment Date which occurs at least thirty (30) days after the Damage Determination Date (such date,
also a “Termination Date”) and (2) a binding and irrevocable assignment of the Net Award
payable as a result of such Material Casualty.




          (c) If
Landlord shall timely receive the Termination Notice pursuant to Paragraph 18(b), then
this Lease shall terminate on the Termination Date; provided that,
Tenant has paid the Termination
Fee, if applicable, and, if Tenant has not satisfied all Monetary Obligations and all other
obligations and liabilities under this Lease which have arisen on or prior to the Termination Date
(collectively, “Remaining Obligations”) on the
Termination Date, then Landlord may, at its
option, extend the date on which this Lease shall terminate to a date which is no later than the
first Basic Rent Payment Date after date on which Tenant has
satisfied all Remaining Obligations
(including the payment of the Termination Fee or receipt of the Net Award in the case of Material
Casualty, as the case may be) regardless of the fact that Tenant is no longer in physical possession
of all or any part of the Leased Premises. Upon such termination (i) all obligations of Tenant
hereunder shall terminate except for any Surviving Obligations, (ii) Tenant shall immediately vacate
and shall have no further right, title or interest




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in or to any of the Leased Premises and (iii) the Net Award shall be payable to and retained by
Landlord (and to the extent necessary to carry out the intent of this Paragraph, Tenant shall
assign to Landlord Tenant’s entire interest in and to any of the Net Award, if such assignment
shall not have already occurred).




          (d) Unless
Tenant shall have timely delivered the Termination Notice, TIME BEING OF THE
ESSENCE, Tenant shall be conclusively presumed to have elected to
continue this Lease and to
rebuild, restore or repair the Leased Premises in accordance with
Paragraphs 17 and 19




          (e) Notwithstanding
anything to the contrary contained herein, in the event of a Termination
Event under clause (ii) or (iii) of Paragraph 18(a) above,
if (x) the amount of the applicable
Termination Fee paid by Tenant to Landlord plus (y) the amount
of the Net Award payable to Landlord
by the condemning authority ((x) plus (y), hereinafter referred to as
the “Net Aggregate
Fee”) exceeds $29,000,000.00, then Landlord shall, within
thirty (30) days after receipt of the
Net Award from the condemning authority, refund to Tenant a sum equal
to the amount by which the Net
Aggregate Fee exceeds $29,000,000; provided that, such refund shall in no event exceed the amount of
the Termination Fee actually paid by Tenant, even if the Net Award alone exceeds $29,000,000. The
provisions of this Paragraph 18(e) shall survive the termination of this Lease




     19. Restoration.



          (a) If any Net Award is in excess of the Threshold Amount, then the portion thereof
below the Threshold Amount shall be paid to Tenant as per Paragraph 17(a) (to be used for the
preservation and/or repair of the Leased Premises), and Landlord (or Lender if required by any
Mortgage) shall hold the entire remaining balance of the Net Award in excess of such Threshold
Amount in a fund (the “Restoration Fund”) and disburse amounts from the Restoration Fund
only in accordance with the following conditions:




               (i) prior to commencement of restoration, (A) the architects, contracts, contractors,
and a budget for the restoration shall have been approved by Landlord, (B) in the event that the
planned restoration shall deviate in any material respect from the Leased Premises as they existed
immediately prior to the Casualty or Condemnation, as applicable, the plans and specifications
shall have been approved by Landlord, (C) Landlord and Lender shall be provided with, if requested
in writing by Landlord at the time in question, acceptable performance and payment bonds which
insure satisfactory completion of and payment for the restoration, are in an amount acceptable to
Landlord and in form and have a surety reasonably acceptable to Landlord, and name Landlord and
Lender as additional dual obligees, and (C) appropriate waivers of mechanics’ and materialmen’s
liens shall have been obtained or filed (to the extent permitted by applicable Laws);



               (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics’
or materialmen’s liens shall have been filed against any of the Leased Premises and remain
undischarged;



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               (iii) disbursements shall be made from time to time (but not more frequently then every
thirty (30) days) in an amount not exceeding the cost of the work completed since the last
disbursement, and not later than fifteen (15) days following Landlord’s receipt of each of the
following (A) satisfactory evidence, including architects’ certificates, of the stage of
completion, the estimated total cost of completion and performance of the work to date in a good
and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of
liens, (C) contractors’ and subcontractors’ sworn statements as to completed work and the cost
thereof for which payment is requested, (D) a satisfactory bringdown of title insurance or
continuation of searches indicating no intervening liens or encumbrances, including mechanics’
liens and (E) other evidence of cost and payment so that Landlord can verify that the amounts
disbursed from time to time are represented by work that is completed, in place and free and clear
of mechanics’ and materialmen’s lien claims;



               (iv) each request for disbursement shall be accompanied by a
certificate of Tenant, signed by an authorized officer of Tenant, describing the work for which
payment is requested, stating the cost incurred in connection therewith, stating that Tenant has
not previously received payment for such work and, upon completion of the work, also stating that
the work has been substantially completed and complies with the applicable requirements of this
Lease;



               (v) Landlord may retain ten percent (10%) of the restoration fund until the restoration
is fully completed. Landlord shall pay to Tenant any remaining amount together with applicable
interest of the Restoration Fund retained by Landlord within twenty (20) days following the date
such Restoration is fully completed and Landlord has received written notice from Tenant stating
that such Restoration has been completed;



               (vi) if the Restoration Fund is held by Landlord, the Restoration Fund shall not be
commingled with Landlord’s other funds and shall bear interest at a rate agreed to by Landlord and
Tenant; and



               (vii) such other reasonable conditions as Landlord or Lender may impose.



          (b) Prior to commencement of restoration and at any time during restoration, if the
estimated cost of completing the restoration work free and clear of all liens, as reasonably
determined by Landlord, exceeds the amount of the Net Award available for such restoration, the
amount of such excess (the “Restoration Deficiency”) shall, upon demand by Landlord, be
paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which
remains in the Restoration Fund upon completion of restoration shall be refunded to Tenant. For
purposes of determining the source of funds with respect to the disposition of funds remaining
after the completion of restoration, the Net Award shall be deemed to be disbursed prior to any
amount added by Tenant. Notwithstanding the foregoing, in the event that Tenant shall demonstrate
to Landlord, in Landlord’s sole discretion, that Tenant shall have adequate immediately available
funds to pay for the Restoration Deficiency, Tenant shall not be required to pay such sums to
Landlord to be added to the Restoration Fund but shall instead be obligated to pay for all Costs
with respect to the restoration work as such Costs arise until such time as the estimated cost of
completing the remaining restoration work free and clear of all liens, as




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determined by Landlord, shall be equal to or less than the amount of the Net Award. Landlord
or Lender, as applicable, shall have no obligation to disburse any sums from the Restoration Fund
unless and until the estimated cost of completing the remaining restoration work free and clear of
all liens, as determined by Landlord, shall be equal to or less than the amount of the Net Award.




          (c) Provided that no Event of Default shall then exist, if any sum remains in the Restoration
Fund after completion of the restoration and any refund to Tenant pursuant to Paragraph 19(b), such
sums shall be paid to Tenant.



     20. Intentionally Omitted.



     21. Assignment and Subletting. Prohibition Against Leasehold Financing.



          (a) Except as otherwise expressly provided to the contrary in this Paragraph
21, Tenant may not (i) assign this Lease, voluntarily or involuntarily, whether by operation
of law or otherwise (including through merger or consolidation) to any Person other than a
wholly-owned subsidiary of Tenant or a Credit Entity, or (ii) sublet any of the Leased Premises at
any time to any other Person other than an Affiliate or a Credit Entity without the prior written
consent of Landlord, which consent may be granted or withheld by Landlord in accordance with
the provisions of Paragraphs 21(b) or 21(c) below, as applicable; and subject, in each case,
to the provisions of Paragraphs 21 (j) and 21(k) below. Any purported sublease or assignment in
violation of this Paragraph 21 (including an Affiliate transaction in violation of the
provisions of Paragraphs 21(j) or 21(k) below) shall be null and void. In addition, notwithstanding anything
to the contrary contained in this Paragraph 21, Tenant shall not have the right to assign this
Lease (voluntarily or involuntarily, whether by operation of law or otherwise), or sublet any of the
Leased Premises to any Person (including any Affiliate) at any time that an Event of Default
beyond any applicable notice and cure period shall have occurred and then be continuing under
this Lease. As used herein, a “Credit Entity” shall mean any Person that immediately following
such assignment or subletting will have a publicly traded unsecured senior debt rating of
“Baa3” or better from Moody’s Investors Services, Inc. or a rating of “BBB-” or better from Standard
& Poor’s Corporation and not be on credit watch (or, if such Person does not then have rated
debt, a determination that its unsecured senior debt would be so rated by such rating agencies), and
in the event all of such rating agencies cease to furnish such ratings, then a comparable rating
by any rating agency acceptable to Landlord and Lender.



          (b) (1) If Tenant desires to assign this Lease, whether by operation of law
or otherwise, to a Person (“Non-Preapproved Assignee”) that is not a Credit Entity or
wholly-owned subsidiary of Tenant (each a “Non-Preapproved Assignment”) then Tenant shall,
not less than sixty (60) days prior to the date on which it desires to make a Non-Preapproved
Assignment submit to Landlord and Lender information regarding the following with respect to the Non-Preapproved Assignee (collectively, the “Review Criteria”): (A) credit, (B)
management, (C) operating history with respect to years of operation, payment patterns and care and
maintenance of similar facilities owned or operated, (D) proposed use of the Leased Premises and (E) risk
factors associated with the proposed use of the Leased Premises by the Non-Preapproved
Assignee, taking into account factors such as environmental concerns, product liability and
the like. Landlord and Lender shall review such information and shall approve or disapprove the
Non-Preapproved Assignee no later than the thirtieth (30th) day following receipt of all such



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information, and Landlord and Lender shall not unreasonably withhold or delay such consent
based on their review of the Review Criteria. If a responsive notice is not given by Landlord to
Tenant by the expiration of such thirty (30) day period, then such proposed Non-Preapproved
Assignment shall be deemed approved (provided that no such deemed approval shall, in any instance,
be deemed a consent to or approval of any purported release of Tenant hereunder from its
obligations under this Lease).




          (2) Notwithstanding the foregoing provisions of Paragraph 21(b)(l) above, if, as of the date
of Tenant’s request to assign this Lease and on the effective date of such proposed assignment,
Tenant is a Credit Entity and no Event of Default has occurred and is then continuing under this
Lease beyond the expiration of any applicable notice and cure period, then Landlord agrees that it
shall consent to a proposed assignment to a Non-PreApproved Assignee unless (i) such
Non-Preapproved Assignee’s proposed use of the Leased Premises or any material portion thereof is
for a use other than a permitted use under Paragraph 4 hereof (or would otherwise be in violation
of this Lease) or (ii) a primary or substantial portion of such proposed Non-Preapproved Assignee’s
business operations at the Leased Premises or the nature of the good or products to be stored
and/or distributed from any part of the Leased Premises (or the particular manner of use of the
Leased Premises or any material part thereof), involves, Hazardous Materials, explosives or highly
flammable products or materials, fertilizers and/or pesticides, or other per se dangerous
activities, which in Landlord’s reasonable determination, does or could result in material
increased risks (taking into account factors such as insurability, environmental concerns, product
liability, death or injury to persons or property at the Leased Premises, or acts of terrorism). If
a responsive notice is not given by Landlord to Tenant within thirty (30) days after Tenant’s
request, then such proposed Non-Preapproved Assignment shall be deemed approved.



          (c) Tenant shall have the right, upon thirty (30) days prior written notice to
Landlord and Lender, but without the consent or approval of Landlord or Lender being required
or necessary, to enter into (i) one or more subleases at the Leased Premises with a Credit
Entity or an Affiliate of Tenant (but only for so long as such entity remains an Affiliate) and (ii)
one or more subleases demising not more than fifty (50%) percent of the gross leasable area of the
Improvements at the Leased Premises (each, a “Preapproved Sublet”). Other than
pursuant to Preapproved Sublets, at no time during the Term shall Tenant sublease any of the Leased
Premises without the prior written consent of Landlord, which consent shall not be
unreasonably withheld and shall be granted or withheld based on a review of the Review Criteria as they
relate to the proposed sublessee and the terms of the proposed sublease. If a responsive notice is
not given by Landlord to Tenant by the expiration of such thirty (30) day period, then such
proposed sublease shall be deemed approved.



          (d) If Tenant assigns all its rights and interest under this Lease, the assignee
under such assignment shall expressly assume all the obligations of Tenant hereunder, actual
or contingent, including obligations of Tenant which may have arisen on or prior to the date of
such assignment, by a written instrument delivered to Landlord at the time of such assignment and
shall also provide any certification reasonably required by Landlord related to the USA
Patriot Act. Each sublease shall (A) be expressly subject and subordinate to this Lease and any
Mortgage encumbering the Leased Premises; (B) not extend beyond the then current Term minus
one day; (C) terminate upon any termination of this Lease, unless Landlord elects in writing,
to



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cause the sublessee to attorn to and recognize Landlord as the lessor under such sublease,
whereupon such sublease shall continue as a direct lease between the sublessee and Landlord upon
all the terms and conditions of such sublease; and (D) bind the sublessee to all covenants
contained in Paragraphs 4(a), 10 and 12 with respect to subleased premises to the same extent as
if the sublessee were the Tenant. No assignment or sublease shall affect or reduce any of the
obligations of Tenant hereunder, and all such obligations shall continue in full force and effect
as obligations of a principal and not as obligations of a guarantor, as if no assignment or
sublease had been made. No assignment or sublease shall impose any additional obligations on
Landlord under this Lease.




          (e) Tenant shall, within ten (10) days after the execution and delivery of any
assignment or sublease, deliver a duplicate original copy thereof to Landlord which, in the
event of an assignment, shall be in recordable form. With respect to any assignment to a wholly-
owned subsidiary, Credit Entity or any Preapproved Sublet, Tenant shall provide to Landlord
information reasonably required by Landlord to establish that the Person involved in any such
proposed assignment or sublet satisfies the criteria set forth in this Lease.



          (f) As security for performance of its obligations under this Lease, Tenant
hereby grants, conveys and assigns to Landlord all right, title and interest of Tenant in and
to all subleases now in existence or hereafter entered into for any or all of the Leased Premises,
any and all extensions, modifications and renewals thereof and all rents, issues and profits
therefrom. Landlord hereby grants to Tenant a license to collect and enjoy all rents and other sums of
money payable under any sublease of any of the Leased Premises, provided, however, that
Landlord shall have the absolute right at any time following the occurrence and during the
continuance of an Event of Default to revoke said license and to collect such rents and sums
of money and to retain the same. Tenant shall not consent to, cause or allow any modification or
alteration of any of the terms, conditions or covenants of any of the subleases or the
termination thereof, without the prior written approval of Landlord which consent shall not be
unreasonably withheld nor shall Tenant accept any rents more than thirty (30) days in advance of the
accrual thereof nor do nor permit anything to be done, the doing of which, nor omit or refrain from
doing anything, the omission of which, will or could be a breach of or default in the terms of any
of the subleases.



          (g) Tenant shall not have the power to mortgage, pledge or otherwise
encumber its interest under this Lease or any sublease of any of the Leased Premises, and any
such mortgage, pledge or encumbrance made in violation of this Paragraph 21 shall be void and
of no force and effect.



          (h) Landlord may sell or transfer the Leased Premises at any time without Tenant’s consent to
any third party (each a “Third Party Purchaser”) other than a Competitor, In the event of
any such transfer, Tenant shall attorn to any Third Party Purchaser as Landlord so long as such
Third Party Purchaser and Landlord notify Tenant in writing of such transfer and such Third Party
Purchaser agrees to recognize Tenant as its tenant under this Lease and accepts such transfer
subject to all of the terms and conditions of this Lease and Tenant’s rights hereunder. At the
request of Landlord, Tenant will execute such documents confirming the agreement referred to above
and such other agreements as Landlord may reasonably request, provided that such agreements do not
increase the liabilities and obligations of Tenant hereunder.



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As used herein, the term “Competitor” shall mean a big box retailer or chain that primarily
uses its retail locations for the sale, rental and/or distribution, either singly or in any
combination of (i) health, fitness and/or exercise equipment; (ii) sporting goods; (iii) sporting
equipment; and/or (iv) athletic footwear, including, without limitation, a sporting goods
superstore, such as Sports Authority, Bass Pro, Cabellas, or Gander Mountain.




          (i) Notwithstanding anything to the contrary contained in this Paragraph 21, in the event that
Tenant shall sublease all (but not less than all) of the Leased Premises to a Credit Entity, then
Landlord shall obtain, for the benefit of such sublessee, a subordination, non-disturbance and
attornment agreement (“SNDA”) in form acceptable to the then existing Lender granting
substantially the same benefits to Tenant as provided in Paragraph 32 hereof; provided, however,
that such Lender may condition the delivery and effectiveness of such SNDA upon such sublessee’s
agreement to pay (on a going-forward basis) the Schedule Basic Rent and Expansion Basic Rent set
forth in this Lease (regardless of the fact that the actual sublease rent may be lower), and such
sublessee’s agreement to pay and perform all of the other obligations of Tenant under this Lease,
including, all Taxes and Impositions, utilities, maintenance and insurance (on a going-forward
basis), in the event that this Lease is terminated as a result of an Event of Default by Tenant
hereunder (or Tenant’s bankruptcy or insolvency, rejection of this Lease or otherwise, whether or
not this Lease is terminated or such termination is stayed).



          (j) Tenant shall not, in a single transaction or series of related transactions, sell or
convey, transfer, abandon or lease all or substantially all of its assets (an “Asset
Transfer”) to any Person, and any such Asset Transfer shall be deemed an assignment in
violation of this Lease; except that, Tenant shall have the right conduct an Asset Transfer to a
Person if the following conditions are met: (a) the Asset Transfer is to a Person that (i)
immediately following such transaction or transactions, taken in the aggregate, is (or would be, on
a pro forma basis) a Credit Entity, (ii) is a wholly-owned subsidiary of Tenant (but only for so
long as such Person shall remain a wholly-owned subsidiary of Tenant) or (iii) is approved or
deemed approved by Landlord in accordance with the provisions of Paragraph 21(b) of this Lease, and
(b) this Lease is assigned to such Person as a part of such Asset Transfer.



          (k) At no time during the Term shall any Person or “group” (within the meaning of Section
13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended); pursuant to a single
transaction or series of related transactions (i) acquire, directly or indirectly, more than 50% of
the voting stock, partnership interests, membership interests or other equitable and/or beneficial
interests of Tenant or (ii) obtain the power (whether or not exercised) to elect a majority of the
directors of Tenant or voting control of any partnership or limited liability company or other
entity acting as its general partner or managing member (including through a merger or
consolidation of Tenant with or into any other Person), unless the purchaser of such control or
Person who acquires such voting power shall: (A) after taking into account the transaction that
resulted in the acquisition of such control or voting power, be a Credit Entity and such Person
shall enter into a guaranty satisfactory to Landlord pursuant to which it guarantees the payment
and performance of the obligations of Tenant under this Lease, or (B) be approved in writing by
Landlord under the Review Criteria as a Non-Preapproved Assignee in accordance with the provisions
of Paragraph 21(b) above. Except as permitted in this Paragraph 21(k) above, any such change of
control or voting power (by operation of law, merger, consolidation or otherwise) shall be deemed
as an assignment of this Lease to a Non-Preapproved Assignee



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(regardless of any Affiliate status of the proposed assignee) and the approval of Landlord
and Lender shall be required as set forth in Paragraph 21(b) above and any consummation of such
assignment absent such approval shall be in violation of this Lease; provided, however, that a
deemed assignment pursuant to the transfer of the outstanding capital stock of Tenant shall not be
deemed to include (i) the sale of such stock by persons or parties through the “over-the-counter
market” or through any recognized stock exchange or (ii) any transfer of such stock by gift,
bequest, devise or other non-remunerative transfer for tax and/or estate planning purposes to any
Person that is a Family Member of Mr. Edward W. Stack (the current holder of a majority of the
issued and outstanding capital stock of Tenant).




     22. Events of Default.



          (a) The occurrence of any one or more of the following (after expiration of any applicable
cure period as provided in Paragraph 22(b)) shall, at the sole option of Landlord, constitute an
“Event of Default” under this Lease:



               (i) a failure by Tenant to make any payment of any Monetary Obligation on or prior to
its due date, regardless of the reason for such failure;



               (ii) a failure by Tenant duly to perform and observe, or a violation or breach of, any other
provision hereof not otherwise specifically mentioned in this Paragraph 22(a);



               (iii) any representation or warranty made by Tenant herein or in any certificate, demand or
request made pursuant hereto proves to be incorrect, now or hereafter, in any material respect;



               (iv) Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) seek or consent
to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) file a
petition seeking relief under the bankruptcy or other similar laws of the United States, any state
or any jurisdiction, or (D) make a general assignment for the benefit of creditors;



               (v) a court shall enter an order, judgment or decree appointing, without the consent of
Tenant, a receiver or trustee for it or for any of the Leased Premises or approving a petition
filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United
States, any state or any jurisdiction, and such order, judgment or decree shall remain undischarged
or unstayed sixty (60) days after it is entered;



               (vi) (A) the Leased Premises shall have been (x) abandoned, or (y)
Tenant shall cease the normal conduct of Tenant’s business at the Leased Premises for a period in
excess of sixty (60) consecutive days or more than ninety (90) days during any Lease Year, except
(1) during any reasonable period of repair or restoration of the Leased Premises following a
Casualty or Taking, (2) during the course of performing Alterations to prepare the Leased Premises
for occupancy by a sublessee or assignee pursuant to an executed sublease or assignment agreement,
(3) during the last year of the Term, or (4) with the prior written consent of Landlord, which
consent shall be granted by Landlord so long as Tenant has established and provided to Landlord in
writing a reasonably prudent plan for the preservation, maintenance and



-35-









 




security of the Leased Premises (including a contract for on-site security or routine
security patrols, confirmation that the insurance required to be carried hereunder by Tenant and
maintenance contracts for the roof and HVAC equipment shall be and remain in full force and effect
notwithstanding Tenant’s vacating of the Leased Premises);




               (vii) Tenant shall be liquidated or dissolved or shall begin proceedings towards its
liquidation or dissolution;



               (viii) the estate or interest of Tenant in any of the Leased Premises shall be levied upon
or attached in any proceeding and such estate or interest is about to be sold or transferred or
such process shall not be vacated or discharged within sixty (60) days after it is made;



               (ix) a failure by Tenant to perform or observe, or a violation or breach of, or a
misrepresentation by Tenant under any provision of any Assignment or any other document between
Tenant and Lender or from Tenant to Lender, if such failure, violation, breach or misrepresentation
gives rise to a default beyond any applicable cure period with respect to any Loan;



               (x) a
failure by Tenant to maintain in effect any material license or permit necessary for the continued use or occupancy of the Leased Premises for the operation of
Tenant’s primary business at the Leased Premises;



               (xi) Tenant shall fail to deliver the estoppel described in Paragraph 25 within the time
period specified therein;



               (xii) Tenant
shall sell or transfer or enter into an agreement to sell or transfer all or substantially all of its assets a single transaction or a series of related
transactions in violation of Paragraph 21 of this Lease; or



               (xiii) an Event of Default shall have occurred under the Construction Agency Agreement or
Tenant shall fail to occupy the Leased Premises on or before the Initial Term Commencement
Date.



          (b) No notice or cure period shall be required in any one or more of the following
events: (A) the occurrence of an Event of Default under clause (i) (except as otherwise set forth
below), (iii), (iv), (v), (vi), (vii), (viii), (xii), or (xiii) of Paragraph 22(a); (B) the default
consists of a failure to pay Basic Rent, a failure to provide any insurance required by Paragraph
16 or an assignment or sublease entered into in violation of Paragraph 21; or (C) the default is
such that any delay in the exercise of a remedy by Landlord could reasonably be expected to cause
irreparable harm to Landlord. If the default consists of the failure to pay any installment of
Basic Rent under clause (i) of Paragraph 22(a) or a default under clauses (xi) or (xiv) of
Paragraph 22(a), the applicable cure period shall be five (5) days from the date on which notice is
given, but Landlord shall not be obligated to give notice of, or allow any cure period for, any
such default more than two (2) times within any Lease Year. If the default consists of the failure
to pay any other Monetary Obligations under clause (i) of Paragraph 22(a), the applicable cure
period shall be ten (10) days from the date on which notice is given. If the default consists of a
default under clause (ii) or (x) of Paragraph 22(a), other than the events specified in clauses (B)



-36-









 




and (C) of the first sentence of this Paragraph 22(b), the applicable cure period shall be
thirty (30) days from the date on which notice is given or, if the default cannot be cured within
such thirty (30) day period and delay in the exercise of a remedy would not (in Landlord’s
reasonable judgment) cause any material adverse harm to Landlord or any of the Leased Premises,
the cure period shall be extended for the period required to cure the default (but such cure
period, including any extension, shall not, in the aggregate, exceed the maximum cure period
permitted to Landlord under the terms of a Mortgage if such Tenant Event of Default constitutes a
default under the Loan), provided that Tenant shall commence to cure the default within the said
thirty (30) day period and shall actively, diligently and in good faith proceed with and continue
the curing of the default until it shall be fully cured.




     23. Remedies and Damages upon Default.



          (a) If an Event of Default shall have occurred and is continuing, Landlord
shall have the right, at its sole option, then or at any time thereafter, to exercise its
remedies and to collect damages from Tenant in accordance with this Paragraph 23, subject in all events to
applicable Law, without demand upon or notice to Tenant except as otherwise provided in
Paragraph 22(b) and this Paragraph 23.



               (i) Landlord may give Tenant notice of Landlord’s intention to
terminate this Lease on a date specified in such notice. Upon such date, this Lease, the estate
hereby granted and all rights of Tenant hereunder shall expire and terminate. Upon such
termination, Tenant shall immediately surrender and deliver possession of the Leased Premises to
Landlord in accordance with Paragraph 26. If Tenant does not so surrender and deliver possession of
the Leased Premises, Landlord may re-enter and repossess the Leased Premises, with or without legal
process, by peaceably entering the Leased Premises and changing locks or by summary proceedings,
ejectment or any other lawful means or procedure. Upon or at any time after taking possession of
the Leased Premises, Landlord may, by peaceable means or legal process, remove any Persons or
property therefrom. Landlord shall be under no liability for or by reason of any such entry,
repossession or removal. Notwithstanding such entry or repossession, Landlord may collect the
damages set forth in Paragraph 23(b)(i) or 23(b)(ii).



               (ii) After repossession of the Leased Premises pursuant to clause (i)
above or without terminating the Lease, Landlord shall have the right to relet any of the Leased
Premises to such tenant or tenants, for such term or terms, for such rent, on such conditions and
for such uses as Landlord in its sole discretion may determine, and collect and receive any rents
payable by reason of such reletting. Landlord may make such Alterations in connection with such
reletting as it may deem advisable in its sole discretion. Notwithstanding any such reletting,
Landlord may collect the damages set forth in Paragraph 23(b)(ii).



          (b) The following constitute damages to which Landlord shall be entitled if
Landlord exercises its remedies under Paragraph 23(a)(i) or 23(a)(ii):



               (i) If Landlord exercises its remedy under Paragraph 23(a)(i) but not its remedy under
Paragraph 23(a)(ii) (or attempts to exercise such remedy and is unsuccessful in reletting the
Leased Premises) then, upon written demand from Landlord, Tenant shall pay to Landlord, as
liquidated and agreed final damages for Tenant’s default and in lieu of all current



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damages beyond the date of such demand (it being agreed that it would be impracticable or
extremely difficult to fix the actual damages), an amount equal to the Present Value of the
excess, if any, of (A) all Basic Rent from the date of such demand to the date on which the Term
is scheduled to expire hereunder in the absence of any earlier termination, re-entry or
repossession over (B) the then fair market rental value of the Leased Premises for the same
period. Tenant shall also pay to Landlord all of Landlord’s Costs in connection with the
repossession of the Leased Premises and any attempted reletting thereof, including all brokerage
commissions, reasonable attorneys’ fees and expenses, employees’ expenses, costs of Alterations
and reasonable expenses and preparation for reletting.




               (ii) If Landlord exercises its remedy under Paragraph 23(a)(ii) or its remedies under
Paragraph 23(a)(i) and 23(a)(ii), then Tenant shall, until the end of what would have been the Term
in the absence of the termination of the Lease, and whether or not any of the Leased Premises shall
have been relet, be liable to Landlord for, and shall pay to Landlord on each Basic Rent Payment
Date, as liquidated and agreed current damages all Monetary Obligations which would be payable
under this Lease by Tenant in the absence of such termination less the net proceeds, if any, of any
reletting pursuant to Paragraph 23(a)(ii), after deducting from such proceeds all of Landlord’s
Costs (including the items listed in the last sentence of Paragraph 23(b)(i) hereof) incurred in
connection with such repossessing and reletting; provided, that if Landlord has not relet the
Leased Premises, such Costs of Landlord shall be considered to be Monetary Obligations payable by
Tenant. Tenant shall be and remain liable for all sums aforesaid, and Landlord may recover such
damages from Tenant and institute and maintain successive actions or legal proceedings against
Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require
Landlord to wait to begin such action or other legal proceedings until the date when the Term would
have expired by its own terms had there been no such Event of Default.



          (c) Notwithstanding anything to the contrary herein contained, provided that
Landlord has not elected liquidated or agreed final damages pursuant to Paragraph 23 (b)
above, in lieu of or in addition to any of the foregoing remedies and damages, Landlord may exercise
any remedies and collect any monetary damages available to it at law or in equity with or
without terminating this Lease; but nothing herein is intended or shall limit any right to an
injunction, temporary restraining order, declaratory relief or other equitable remedy then
available to Landlord under the circumstances of the particular Event of Default in question.
If Landlord is unable to obtain full satisfaction pursuant to the exercise of any remedy, it may
pursue any other remedy which it has hereunder or at law or in equity. Notwithstanding the
foregoing in this Paragraph 23(c), upon the occurrence of an Event of Default, Landlord shall
not be entitled to the remedy of acceleration of rent otherwise payable hereunder, regardless of
whether such remedy is available at law or in equity.



          (d) Landlord shall not be required to mitigate any of its damages hereunder
unless required to by applicable Law. If any Law shall validly limit the amount of any damages
provided for herein to an amount which is less than the amount agreed to herein, Landlord
shall be entitled to the maximum amount available under such Law.



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          (e) No termination of this Lease, repossession or reletting of the Leased
Premises, exercise of any remedy or collection of any damages pursuant to this Paragraph
23 shall relieve Tenant of any Surviving Obligations.



          (f) WITH RESPECT TO ANY REMEDY OR PROCEEDING OF
LANDLORD OR TENANT HEREUNDER, EACH OF LANDLORD AND TENANT HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY
JURY.



          (g) Upon the occurrence of any Event of Default, Landlord shall have the
right (but no obligation) to perform any act required of Tenant hereunder and, if performance
of such act requires that Landlord enter the Leased Premises, Landlord may enter the Leased
Premises for such purpose. Landlord agrees any work so performed shall be performed in good
and workmanlike manner.



          (h) No failure of Landlord (i) to insist at any time upon the strict performance of any
provision of this Lease or (ii) to exercise any option, right, power or remedy contained in this
Lease shall be construed as a waiver, modification or relinquishment thereof. A receipt by Landlord
of any sum in satisfaction of any Monetary Obligation with knowledge of the breach of any provision
hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision
hereof shall be deemed to have been made unless expressed in a writing signed by Landlord.



          (i) Tenant hereby waives and surrenders, for itself and all those claiming under it,
including creditors of all kinds, (i) any right and privilege which it or any of them may have
under any present or future Law to redeem any of the Leased Premises or to have a continuance of
this Lease after termination of this Lease or of Tenant’s right of occupancy or possession pursuant
to any court order or any provision hereof, and (ii) the benefits of any present or future Law
which exempts property from liability for debt or for distress for rent.



          (j) Except as otherwise provided herein, all remedies are cumulative and concurrent and
no remedy is exclusive of any other remedy. Each remedy may be exercised at any time an Event of
Default has occurred and is continuing and may be exercised from time to time. No remedy shall be
exhausted by any exercise thereof.



          (k) Tenant waives, to the fullest extent permitted by Law, any notice to quit as a
condition precedent to Landlord’s remedies under this Paragraph 23.



          (1) Tenant hereby waives, to the fullest extent permitted by applicable Law, relief from
valuation and appraisement laws and Tenant covenants and agrees that any judgment obtained by
Landlord against Tenant may be executed in the State without relief from such valuation and
appraisement laws.



     24. Notices. All notices, demands, requests, consents, approvals, offers,
statements and other instruments or communications required or permitted to be given pursuant to
the provisions of this Lease shall be in writing and shall be deemed to have been given and
received for all purposes when delivered in person or by Federal Express or other reliable 24-hour
delivery service or five (5) business days after being deposited in the United States mail, by



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registered or certified mail, return receipt requested, postage prepaid, addressed to the
other party at its address stated on page one of this Lease or when delivery is refused. Notices
sent to Landlord shall be to the attention of Director, Asset Management and notices to Tenant
shall be to the attention of the “Legal Department” of Tenant. A copy of any notice given by Tenant
to Landlord shall be simultaneously be given by Tenant to Reed Smith LLP, 2500 One Liberty Place,
Philadelphia, PA 19103, Attention: Chairman, Real Estate Department. For the purposes of this
Paragraph, any party may substitute another address stated above (or substituted by a previous
notice) for its address by giving fifteen (15) days’ notice of the new address to the other party,
in the manner provided above.




     25. Estoppel Certificate. At any time upon not less than twenty (20) days’prior
written request by either Landlord or Tenant (the “Requesting Party”) to the other
party (the “Responding Party”), the Responding Party shall deliver to the Requesting Party,
having a statement in writing, executed by an authorized officer of the Responding Party having
sufficient knowledge of the Leased Premises and this Lease, certifying (a) that, except as otherwise
specified, this Lease is unmodified and in full force and effect, (b) the dates to which Basic
Rent, Additional Rent and all other Monetary Obligations have been paid, (c) that, to the knowledge
of the signer of such certificate and except as otherwise specified, no default by either
Landlord or Tenant exists hereunder, and (d) such other matters as the Requesting Party may reasonably
request and related to this Lease. Any such statements by the Responding Party may be relied
upon by the Requesting Party, any Person whom the Requesting Party notifies the Responding
Party in its request for the Certificate is an intended recipient or beneficiary of the
Certificate, any Lender or their assignees and by any prospective purchaser or mortgagee of any of the
Leased Premises.



     26. Surrender. Upon the expiration or earlier termination of this Lease, Tenant shall
peaceably leave and surrender the Leased Premises to Landlord in the same condition in which
the Leased Premises was at the commencement of this Lease, except as repaired, rebuilt,
restored, altered, replaced or added to as permitted or required by any provision of this
Lease, and except for ordinary wear and tear. Upon such surrender, Tenant shall (a) remove from the
Leased Premises all property which is owned by Tenant or third parties other than Landlord and
Alterations required to be removed pursuant to Paragraph 13 hereof and (b) repair any damage
caused by such removal. Property not so removed shall become the property of Landlord, and
Landlord may thereafter cause such property to be removed from the Leased Premises. The cost
of removing and disposing of such property and repairing any damage to any of the Leased
Premises caused by such removal shall be paid by Tenant to Landlord upon demand. Landlord
shall not in any manner or to any extent be obligated to reimburse Tenant for any such
property which becomes the property of Landlord pursuant to this Paragraph 26.



     27. No Merger of Title. There shall be no merger of the leasehold estate created by
this Lease with the fee estate in any of the Leased Premises by reason of the fact that the
same Person may acquire or hold or own, directly or indirectly, (a) the leasehold estate created
hereby or any part thereof or interest therein and (b) the fee estate in any of the Leased Premises
or any part thereof or interest therein, unless and until all Persons having any interest in the
interests described in (a) and (b) above which are sought to be merged shall join in a written
instrument effecting such merger and shall duly record the same.



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     28. Books and Records.



          (a) Tenant shall keep adequate records and books of account (i) with respect
to Tenant’s operations at the Leased Premises and the costs associated therewith in accordance
with sound and prudent real estate accounting principals and, with respect to Tenant’s
business in general, in accordance with generally accepted accounting principles (“GAAP”) consistently
applied; and shall (not more than twice per year) permit Landlord and Lender by their
respective agents, accountants and attorneys, upon reasonable notice to Tenant, to visit and inspect the
Leased Premises and examine (and make copies of) the records and books of account with
respect to the operation of the Leased Premises and to discuss the finances and business with
the officers of Tenant, at such reasonable times as may be requested by Landlord. Upon the request
of Lender or Landlord (either telephonically or in writing), Tenant shall provide the
requesting party with copies of any information to which such party would be otherwise entitled in the
course of a personal visit.



          (b) If at any time during the Term, Tenant ceases to be a publicly traded
company and/or its financial reports and statements (i.e. 10-K and 10-Q reports) are no longer
available to Landlord via Edgar or other online reporting sources without material cost to
Landlord, then Tenant shall deliver to Landlord and to Lender (i) within ninety (90) days of
the close of each fiscal year, annual audited financial statements of Tenant certified by a
nationally recognized firm of independent certified public accountants, and (ii) within forty-five (45)
days after the end of each of the three remaining quarters unaudited financial statements and all
other quarterly reports of Tenant, certified by Tenant’s chief financial officer, and all filings,
if any, of Form 10-K, Form 10-Q and other required filings with the Securities and Exchange Commission
pursuant to the provisions of the Securities Exchange Act of 1934, as amended, or any other
Law. All financial statements shall be prepared in accordance with GAAP consistently applied.
All annual financial statements shall be accompanied (i) by an opinion of said accountants
stating that (A) there are no qualifications as to the scope of the audit and (B) the audit
was performed in accordance with GAAP.



          (c) Landlord, Lender and their respective agents, accountants and attorneys,
shall consider and treat on a strictly confidential basis (i) any information contained in the
books and records of Tenant, (ii) any copies of any books and records of Tenant, and any financial
statements of Tenant pursuant to Paragraph 28(b) which are delivered to or received by them
and which are conspicuously stamped “CONFIDENTIAL”. The restrictions contained in this
Paragraph 28(c) shall not prevent disclosure by Landlord or Lender of any information in any
of the following circumstances:



               (i) Upon
the order of any court or administrative agency to the extent required by such order and not effectively stayed or by appeal or otherwise;



               (ii) Upon the request, demand or requirement of any regulatory
agency or authority having jurisdiction over such party, including the Securities and Exchange
Commission (whether or not such request or demand has the force of law);



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               (iii) That has been publicly disclosed other than by breach of
this Paragraph 28(c) by Lender or Landlord or by any other Person who has agreed with
Landlord or Lender to abide by the provisions of this Paragraph 28(c);



               (iv) To counsel, accountants or consultants for Landlord,
Lender and such other Persons who have agreed to abide by the provisions of this Paragraph
28(c);



               (v) Independently developed by Landlord or Lender to the
extent that confidential information provided by Tenant is not used to develop such information;



               (vi) With respect to financial information and information that
Landlord or its attorneys deem to be material in any reporting to the shareholders of Landlord or
the shareholders or prospective shareholders (whether through a registered public offering or
otherwise) of Landlord’s parent company;



               (vii) In connection with any sale or financing of the Leased
Premises, provided that any recipient of such information who is a prospective purchaser of the
Leased Premises (except for a purchaser that purchases all or substantially all of the assets of
Landlord’s parent company) shall agree to be bound by the terms of Paragraph 28(c);



               (viii) In connection with the securitization and/or sale of a Loan
or interests therein by a Lender;



               (ix) As otherwise required by Law.



     29. Intentionally Omitted.



     30. Non-Recourse as to Landlord. (a) Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any liability of Landlord under this
Lease shall be limited to actual damages and shall be enforced only against the Leased Premises and
not against any other assets, properties or funds of (i) Landlord, (ii) any director, officer,
member, general partner, shareholder, limited partner, beneficiary, employee or agent of
Landlord or any general partner of Landlord or any of its members or general partners (or any
legal representative, heir, estate, successor or assign of any thereof), (iii) any predecessor
or successor partnership or corporation (or other entity) of Landlord or any of its general
partners, shareholders, officers, directors, members, employees or agents, either directly or through
Landlord or its general partners, shareholders, officers, directors, employees or agents or
any predecessor or successor partnership or corporation (or other entity), or (iv) any Person
affiliated with any of the foregoing, or any director, officer, employee or agent of any thereof.



          (b) Notwithstanding the foregoing, Tenant shall not be precluded from instituting legal
proceedings for the purpose of making a claim against Landlord on account of an alleged violation
of Landlord’s obligations under this Lease, subject, however, to Paragraph 30(a) above.



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     31.
Financing.



          (a) Tenant agrees to pay to Landlord upon demand (i) all costs and expenses incurred by
Landlord in connection with the purchase, leasing and initial financing of the Leased Premises
including, without limitation, the cost of appraisals, environmental reports, zoning reports, UCC
searches, title insurance premiums and charges (including endorsements), surveys, Lender’s “points”
and/or commitment fees, and the reasonable fees and expenses of Landlord’s and Lender’s counsel and
(ii) fifty (50%) percent of the actual costs to defease the existing mortgage loan encumbering a
portion of the Leased Premises as of the date immediately preceding the date of this Lease to the
extent such actual costs exceed the outstanding principal balance of such mortgage loan at the time
of such defeasance (and which mortgage loan the parties acknowledge is to be satisfied of record
upon the effective date of this Lease, and Tenant’s share of such actual defeasance costs is
currently estimated to be approximately $475,000 to $500,000); provided that, in no event shall
Tenant’s share of the third party costs (i.e., defeasance costs exclusive of the purchase price
paid for the securities purchased to defease the existing mortgage loan) exceed $50,000; provided
further, that in no event shall Tenant be required to pay or reimburse Landlord or any other party
for any costs arising out of a default by Landlord under such existing mortgage being defeased,
unless such default is the result of a default or breach by Galyan’s or Tenant under the provisions
paragraph 2 of that certain side letter agreement regarding improvements, between Galyan’s, Tenant
and Landlord, dated as of November 3,2005 (the
“Construction Side Letter”) or under the
Original Lease or this Lease, as the case may be (other than any alleged default as a result of the
performance of any construction consented to by Landlord under the terms of the Construction Side
Letter). Tenant acknowledges and agrees that it shall be obligated to pay to Landlord the costs and
expenses described in this Paragraph 31 regardless of the closing date of such initial financing.
In connection with such initial financing, Landlord agrees that it shall use good faith and
commercially reasonable efforts to negotiate then current “market” or customary points and/or
commitment fees, taking into account the credit and financial standing of Tenant at the time such
Loan is made and current market circumstances.



          (b) If Landlord desires to obtain or refinance any Loan, Tenant shall negotiate in good
faith with Landlord concerning any request made by any Lender or proposed Lender for changes or
modifications in this Lease. In particular, Tenant shall agree, upon request of Landlord, to supply
any such Lender with such notices and information as Tenant is required to give to Landlord
hereunder and to extend the rights of Landlord hereunder to any such Lender and to consent to such
financing if such consent is requested by such Lender. Tenant shall provide any other consent or
statement and shall execute any and all other documents that such Lender requires in connection
with such financing, including any environmental indemnity agreement and subordination,
non-disturbance and attornment agreement, so long as the same do not materially adversely affect
any right, benefit or privilege of Tenant under this Lease, or increase Tenant’s Monetary
Obligations under this Lease or materially increase Tenant’s non-monetary obligations under this
Lease. Such subordination, nondisturbance and attornment agreement may require Tenant to confirm
that (a) Lender and its assigns will not be liable for any misrepresentation, act or omission of
Landlord and (b) Lender and its assigns will not be subject to any counterclaim, demand or offset
which Tenant may have against Landlord. Nothing contained in this Paragraph 31(b) shall make Tenant
responsible for any Costs incurred by Landlord in connection with such refinancing.



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          (c) In connection with any Loan, Landlord agrees that it shall use good faith and
commercially reasonable efforts to (i) negotiate then current “market” or customary prepayment
premiums in connection with any such Loan, taking into account the credit and financial standing of
Tenant at the time Loan is made, current market circumstances and the type and amounts of
Prepayment Premiums or penalties which are generally being required in connection with mortgages
held by an institutional lender for similar properties, similarly situated (including, without
limitation, mortgages anticipated to be subject to a securitization) and (ii) obtain a waiver from
such Lender as to the right to collect any Prepayment Premium in connection with a prepayment of
the Loan as a result of Casualty or Condemnation.



     32. Subordination, Non-Disturbance and Attornment.



          (a) This Lease and Tenant’s interest hereunder shall be subordinate to any
Mortgage or other security instrument hereafter placed upon the Leased Premises by Landlord,
and to any and all advances made or to be made thereunder, to the interest thereon, and all
renewals, replacements and extensions thereof; provided and upon condition that any such
Mortgage or other security instrument (or a separate instrument in recordable form duly
executed by the holder of any such Mortgage or other security instrument and delivered to Tenant) shall
provide for the recognition of this Lease and all Tenant’s rights hereunder and shall not
disturb Tenant’s use and/or possession of the Leased Premises unless and until an Event of Default
exists or Landlord shall have the right to terminate this Lease pursuant to any applicable
provision hereof.



          (b) Landlord agrees that, upon the request of any Person that shall be Tenant’s
senior secured lender, or a purchase money equipment lender or equipment lessor of Tenant,
Landlord shall negotiate in good faith for the purpose of executing and delivering a
commercially reasonable waiver (a “Waiver”) of Landlord’s statutory lien rights, if
any, and a consent and agreement with respect to the respective rights of Landlord and such Person
regarding the security interests in, and the timing and removal of, any inventory, equipment
or other collateral in which such Person has a secured interest (the “Collateral”), in
form and substance reasonably acceptable to Landlord and such Person, so long as such Waiver (i)
provides for the indemnification of Landlord against any claims by Tenant or any Person
claiming through Tenant, and against any physical damage caused to the Leased Premises, in
connection with the removal of any of the Collateral by such Person, (ii) expressly excludes
any claim by such Person to any right, title or interest in or to any of the Equipment as defined
in this Lease, (iii) provides for a reasonable, but limited, time frame for the removal of such
Collateral by such Person after the expiration of which same shall be deemed abandoned, and (iv) provides
for the per diem payment of Basic Rent due hereunder by such Person for each day after the
fifth (5th) business day following the date of the expiration or termination of this
Lease that Landlord permits such Person’s Collateral to remain at the Leased Premises.



     33. Tax
Treatment; Reporting. Landlord and Tenant each acknowledge that each
shall treat this transaction as a true lease for state law purposes and shall report this
transaction as a Lease for Federal income tax purposes. For Federal income tax purposes each shall
report this Lease as a true lease with Landlord as the owner of the Leased Premises and Equipment
and Tenant as the lessee of such Leased Premises and Equipment including: (1) treating Landlord as
the owner of the property eligible to claim depreciation deductions under Section 167 or 168 of



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the Internal Revenue Code of 1986 (the “Code”) with respect to the Leased Premises and
Equipment, (2) Tenant reporting its Rent payments as rent expense under Section 162 of the
Code, and (3) Landlord reporting the Rent payments as rental income.




     34. Intentionally Omitted.



     35. Right of First Offer.



          (a) If Landlord decides to offer the Leased Premises for sale to any third
party, Landlord shall first offer by written notice (the “Offer”) to sell the Leased
Premises to Tenant for a specific purchase price (the “ROFO Purchase Price”) and, upon such terms
and conditions as Landlord, in Landlord’s sole discretion, would otherwise intend to offer to sell
the Leased Premises, prior to Landlord’s offering to sell the Leased Premises to any such third
party except that the terms and conditions of any such sale to Tenant shall be (i) consistent with
the terms and provisions of this Paragraph 35 and (ii) the sale to Tenant shall be “AS IS”, “WHERE
IS”, without representation or warranty by Landlord. If Landlord shall make the Offer, then,
whether or not Tenant has accepted the Offer, Landlord shall have the unilateral right, in
Landlord’s sole discretion, to revoke the Offer if an Event of Default exists under this Lease
on the date on which Landlord shall give, or would otherwise be required to give, Tenant the
Offer.



          (b) Tenant shall have the right to accept the Offer only by giving Landlord
written notice of such acceptance (the “ROFO Notice”) within thirty (30) days after
delivery by Landlord to Tenant of the Offer. Time shall be of the essence with respect to said thirty (30)
day period and delivery of the ROFO Notice by Tenant. If Tenant shall accept the Offer, Tenant
shall execute any documentation reasonably required by Landlord to reflect Tenant’s acceptance
of the Offer. Notwithstanding anything to the contrary contained in this Lease upon the
delivery of the ROFO Notice by Tenant, no event or circumstances affecting the Leased Premises
including, but not limited to, a Condemnation or Casualty, shall give Tenant any right or
option of Tenant to cancel, surrender or otherwise terminate this Lease, and any other right or
option of Tenant under the Lease to acquire the Leased Premises, shall automatically be deemed to have
been waived by Tenant for all purposes under this Lease.



          (c) If Tenant does not accept, or fails to accept, the Offer in accordance with
the provisions herein, Landlord shall be under no further obligation with respect to such
Offer pursuant to the terms contained herein, and Tenant shall have forever waived and relinquished
its right to such Offer, and Landlord shall at any and all times thereafter be entitled to market
the Leased Premises to others upon such terms and conditions as Landlord in its sole discretion
may determine, except that (i) if the price (“Third Party Price”) for which Landlord
enters into a binding contract (“Third Party Contract”) to sell the Leased Premises is less than
ninety percent (90%) of the ROFO Purchase Price, Tenant shall have fifteen (15) days in which to
accept the Third Party Price and (ii) if Landlord shall fail to close the transfer of the
Leased Premises pursuant to such Third Party Contract within on hundred eighty (180) days after the
date of the Offer, then the provisions of this Paragraph 35 shall again be applicable and
Landlord shall, if it still intends on selling the Leased Premises, again Offer to sell the Leased
Premises to Tenant. Tenant shall, within five (5) days after Landlord’s request therefor, deliver an
instrument in form reasonably satisfactory to Landlord confirming the aforesaid waiver, but no such
instrument shall be necessary to make the provisions hereof effective.



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          (d) If Tenant does not timely deliver the ROFO Notice and the Leased
Premises are transferred to a third party, Tenant will attorn to such third party as Landlord
so long as such third party and Landlord notify Tenant in writing of such transfer. At the
request of Landlord, Tenant will execute such documents confirming the agreement referred to above and
such other agreements as Landlord may reasonably request, provided that such agreements do
not increase the liabilities and obligations of Tenant hereunder.



          (e) Notwithstanding anything to the contrary contained herein, the provisions
of this Paragraph 35 shall not apply to or prohibit (i) any mortgaging, subjection to deed of
trust or other hypothecation of Landlord’s interest in the Leased Premises, (ii) any sale of the
Leased Premises pursuant to a private power of sale under or judicial foreclosure of any Mortgage or
other security instrument or device to which Landlord’s interest in the Leased Premises is now
or hereafter subject, (iii) any transfer of Landlord’s interest in the Leased Premises to a
Lender, beneficiary under deed of trust or other hold of a security interest therein or their
designees by deed in lieu of foreclosure, (iv) any transfer of the Leased Premises to any governmental or
quasi-governmental agency with power of condemnation, (v) any transfer of the Leased Premises
or any interest therein or in Landlord to any affiliate of Corporate Property Associates
16-Global Incorporated (“CPA:16”) or to any current or future REIT or real estate company that
can reasonably be determined to be a part of the so-called “W.P. Carey family of funds” (i.e.,
similar to CPA:16) and for whom W.P. Carey & Co. LLC or any of its affiliates provides management
or advisory services or investment advice, (vi) a transfer to any person or entity to whom
CPA:16 sells all or substantially all of its assets, or (vii) any transfer of the Leased
Premises to any of the successors or assigns of any of the persons or entities referred to in the
foregoing clauses (i) through (vi).



          (f) If the Leased Premises is purchased by Tenant pursuant to this Paragraph 35,
Landlord need not convey any better title thereto than that which was conveyed to Landlord, and
Tenant shall accept such title, subject, however, to the Permitted Encumbrances and to all other
liens, exceptions and restrictions on, against or relating to any of the Leased Premises and to all
applicable Laws, but free of the lien of and security interest created by any Mortgage or
assignment of leases and rents and liens, exceptions and restrictions on, against or relating to
the Leased Premises which have been created by or resulted solely from acts of Landlord after the
date of this Lease, unless the same are Permitted Encumbrances or customary utility easements
benefiting the Leased Premises or were created with the concurrence of Tenant or as a result of a
default by Tenant under this Lease.



          (g) Upon the date fixed for a purchase of the Leased Premises pursuant to this Paragraph
35 which shall be a date mutually acceptable to Landlord and Tenant which shall be no later than
either sixty (60) days following acceptance of the Offer or the date specified in the Third Party
Contract, if applicable, (the “Purchase Date”), Tenant shall pay to Landlord, or to any
Person to whom Landlord directs payment, the ROFO Purchase Price and all other sums payable by
Tenant under the Offer, in Federal Funds, and Landlord shall deliver to Tenant or its designee (i)
special warranty deeds or their equivalent which describe the Leased Premises being conveyed and
conveys the title thereto as provided in Paragraph 35(f) above and (ii) such other instruments as
shall be necessary to transfer the Leased Premises to Tenant or its designee. If on the Purchase
Date any Monetary Obligations remain outstanding Tenant shall pay to Landlord on the Purchase Date
the amount of such Monetary Obligations. Upon the completion of such



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purchase by Tenant or its designee, this Lease and all obligations and liabilities of Tenant
hereunder shall terminate, except any obligations of Tenant under this Lease, actual or contingent,
which arise on or prior to the expiration or termination of this Lease or which survive such
expiration or termination by their own terms. Any prepaid Monetary Obligations paid to Landlord
shall be prorated as of the Purchase Date, and the prorated unapplied balance shall be deducted
from the ROFO Purchase Price due to Landlord; provided, that no apportionment of any Impositions
shall be made upon any such purchase.




     If the completion of the purchase by Tenant or its designee pursuant to this Paragraph 35
shall be delayed after the date scheduled for such purchase, Basic Rent and Additional Rent shall
continue to be due and payable until completion of such purchase.



     36. Miscellaneous.



          (a) The paragraph headings in this Lease are used only for convenience in
finding the subject matters and are not part of this Lease or to be used in determining the
intent of the parties or otherwise interpreting this Lease.



          (b) As used in this Lease, the singular shall include the plural and any gender
shall include all genders as the context requires and the following words and phrases shall
have the following meanings: (i) “including” shall mean “including without limitation”; (ii)
“provisions” shall mean “provisions, terms, agreements, covenants and/or conditions”; (iii)
“lien” shall mean “lien, charge, encumbrance, title retention agreement, pledge, security interest,
mortgage and/or deed of trust”; (iv) “obligation” shall mean “obligation, duty, agreement,
liability, covenant and/or condition”; (v) “any of the Leased Premises” shall mean “the Leased
Premises or any part thereof or interest therein”; (vi) “any of the Land” shall mean “the Land
or any part thereof or interest therein”; (vii) “any of the Improvements” shall mean “the
Improvements or any part thereof or interest therein”; and (viii) “any of the Equipment” shall
mean “the Equipment or any part thereof or interest therein”; and



          (c) Any act which Landlord is permitted to perform under this Lease may be
performed at any time and from time to time by Landlord or any person or entity designated by
Landlord. Any appointment of Landlord as attorney-in-fact for Tenant hereunder is irrevocable
and coupled with an interest. Landlord shall not unreasonably withhold or delay its consent
whenever such consent is required under this Lease, except as otherwise specifically provided
herein and except that with respect to any assignment of this Lease or subletting of the
Leased Premises not expressly permitted by the terms of this Lease, Landlord may withhold its consent
for any reason or no reason. In any instance in which Landlord agrees not to act unreasonably,
Tenant hereby waives any claim for damages against or liability of Landlord which is based
upon a claim that Landlord has unreasonably withheld or unreasonably delayed any consent or
approval requested by Tenant, and Tenant agrees that its sole remedy shall be an action for
declaratory judgment or to request arbitration as set forth herein below. If with respect to
any required consent or approval Landlord is required by the express provisions of this Lease not
to unreasonably withhold or delay its consent or approval, and if it is determined in any such
proceeding referred to in the preceding sentence or pursuant to arbitration as set forth
hereinbelow, that Landlord acted unreasonably, the requested consent or approval shall be
deemed to have been granted; however, Landlord shall have no liability whatsoever to Tenant
for



-47-









 




its refusal or failure to give such consent or approval. Tenant’s sole remedy for Landlord’s
unreasonably withholding or delaying, consent or approval shall be as provided in this Paragraph.
Time is of the essence with respect to the performance by Landlord and Tenant of any of their
respective obligations under this Lease that are required to be paid, performed or observed within
a set time period or number of days. Notwithstanding the foregoing, in connection with any dispute
between Landlord and Tenant based upon a claim that Landlord has unreasonably withheld or
unreasonably delayed any consent or approval requested by Tenant (but only in such instances where
this Lease expressly provides that Landlord shall not unreasonably withhold or delay such consent
or approval under the applicable circumstances), then Landlord and Tenant agree that either party
shall have the right, upon five (5) days prior written notice to the other party (which notice may
not be given prior to the expiration of the review, determination and notice period to which
Landlord is entitled under the applicable provision of this Lease), to request that such dispute be
resolved and determined by arbitration in the City of New York in accordance with the rules and
regulations of the American Arbitration Association (the “AAA”) or its successor, utilizing
the Expedited Procedures of the Commercial Arbitration Rules of the AAA, and any such determination
shall be final and binding on the parties (except as excluded in the last sentence hereof), whether
or not a judgment shall be entered in any court. Without limiting the application of this Paragraph
36(c) to any other Paragraph of this Lease, the provisions hereof shall be applicable to Paragraphs
21(b) and (c) of this Lease; provided that in no event shall any arbitrator’s decision that
Landlord has been unreasonable be binding upon Landlord in any instance where the then-existing
Tenant hereunder seeks to or has conditioned its request for approval or consent upon a release
from its obligations under this Lease.




          (d) Landlord shall in no event be construed for any purpose to be a partner,
joint venturer or associate of Tenant or of any subtenant, operator, concessionaire or
licensee of Tenant with respect to any of the Leased Premises or otherwise in the conduct of their
respective businesses.



          (e) This Lease and any documents which may be executed by Tenant on or
about the effective date hereof at Landlord’s request constitute the entire agreement between
the parties and supersede all prior understandings and agreements, whether written or oral,
between the parties hereto relating to the Leased Premises and the transactions provided for herein.
Landlord and Tenant are business entities having substantial experience with the subject
matter of this Lease and have each fully participated in the negotiation and drafting of this Lease.
Accordingly, this Lease shall be construed without regard to the rule that ambiguities in a
document are to be construed against the drafter.



          (f) This Lease may be modified, amended, discharged or waived only by an
agreement in writing signed by the party against whom enforcement of any such modification,
amendment, discharge or waiver is sought.



          (g) The covenants of this Lease shall run with the land and bind Landlord and
Tenant, their respective successors and assigns and all present and subsequent encumbrancers
and subtenants of any of the Leased Premises, and shall inure to the benefit of Landlord, its
successors and assigns and Tenant and any permitted successors or assignees hereunder unless



-48-









 





otherwise stated. If there is more than one Tenant, the obligations of each shall be
joint and several.




          (h) If any one or more of the provisions contained in this Lease shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Lease, but this Lease shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.



          (i) All exhibits attached hereto are incorporated herein as if fully set
forth.



          (j) This Lease shall be governed by and construed and enforced in accordance with the
laws of the State.



          (k) Tenant is not, nor will Tenant become, a Person with whom U.S. persons or entities
are restricted from doing business under regulations of the Office of Foreign Asset Control
(“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated
and Blocked Persons list) or under any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action and Tenant not will engage in any
dealings or transactions or be otherwise associated with such persons or entities.



          (l) This Lease may be executed in a number of counterparts and by different parties
hereto in separate counterparts each of which, when so executed, shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.



     37. Additional State Provisions. Notwithstanding anything in this Lease to the
contrary:



          (a) Where any provision of this Lease is inconsistent with any provision of
applicable Laws of the State of Indiana (“State Law”), the provisions of State Law shall take
precedence over the provisions of this Lease, but shall not invalidate or render unenforceable
any other provisions of this Lease that can be construed in a manner consistent with State Law.
Should State Law confer any rights or impose any duties inconsistent with or in addition to
any of the provisions of this Lease, the affected provisions of this Lease shall be considered
amended to conform to such State Law, but all other provisions hereof shall remain in full force and
effect without modification.



          (b) To the extent that State Law limits (i) the availability of the exercise of
any of the remedies set forth in the Lease, and the right of Landlord to exercise self-help in
connection with the enforcement of the terms of this Lease, or (ii) the enforcement of waivers
and indemnities made by Tenant, such remedies, waivers, or indemnities shall be exercisable or
enforceable, any provisions in this Lease to the contrary notwithstanding, if, and to the
extent, permitted by State Law in force at the time of the exercise of such remedies or the
enforcement of such waivers or indemnities without regard to the enforceability of such remedies, waivers
or indemnities at the time of the execution and delivery of this Lease.



-49-









 






          (c) Tenant covenants and agrees with Landlord that if Landlord, upon an
Event of Default by Tenant, elects to file a suit to enforce this Lease and protect Landlord’s
rights hereunder, Landlord may in such suit apply to any court having jurisdiction, for the
appointment of a receiver of the Leased Premises and Tenant hereby consents to such
appointment, and thereupon it is expressly covenanted and agreed that the court shall
without notice forthwith appoint a receiver with the usual powers and duties of receivers in
like cases pursuant to State Law, and such appointment shall be made by such court as a
matter of strict right to Landlord and without reference to the adequacy or inadequacy of
the value of the Leased Premises that is subject this Lease, or to the solvency or insolvency
of Tenant, and without reference to the commission of waste.



          (d) Tenant waives, to the fullest extent permitted by State Law, any notice to
quit as a condition precedent to Landlord’s remedies under Paragraph 23 of this Lease.



          (e) Whenever in this Lease a party is entitled to recover attorneys’ fees in any
litigation, such party shall be entitled to recover all reasonable attorneys’ fees, expenses
and costs incurred at, before and after trial and on appeal, whether or not taxable as costs, in such
litigation.



          (f) Landlord and Tenant agree to execute and record a memorandum of lease
that will satisfy the requirements of Ind. Code 36-2-11-20, in the office of the County
Recorder in which the Leased Premises is located.



          (g) Tenant hereby certifies to Landlord that in connection with the sale and
leaseback of the Leased Premises, Tenant has complied, or will comply, with the Disclosure Law
by (A) the completion and delivery to Landlord of a disclosure document (the “Disclosure
Document”) in the form required by Ind. Code 13-25-3 (the “Disclosure Law”), (B) the timely
recording of the Disclosure Document in the Office of the Recorder of the County in which the
Leased Premises is located, and (C) the timely filing the Disclosure Document in the Office of
the Indiana Department of Environmental Management; or Tenant has determined, after diligent
investigation, and Tenant hereby certifies to Landlord, that, to the best of Tenant’s
knowledge, the Leased Premises does not constitute “property” under the Disclosure Law, and therefore,
delivery, filing and recording of a Disclosure Document is not required, because:



               (i) (the Leased Premises does not contain (1) or more facilities that are subject to
reporting under Section 312 of the Federal Emergency Planning and Community Right-to-Know Act of
1986 (42 U.S.C. 11022);



               (ii) the Leased Premises is not the site of one (1) or more underground storage tanks for
which notification is required under: (A) 42 U.S.C. 6991 (a) and (B) Ind. Code 13-23-l-2(c)(8)(A);
or



               (iii) the Leased Premises is not listed in the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS) in accordance with Section 116 of CERCLA
(42 U.S.C. 9616).



          (h) INDEMNIFICATION NOTICE. IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT THIS LEASE
INCLUDES INDEMNIFICATION PROVISIONS



-50-









 




(INCLUDING, WITHOUT LIMITATION, THE INDEMNIFICATION PROVISIONS CONTAINED IN PARAGRAPH 15
HEREOF) WHICH, IN CERTAIN CIRCUMSTANCES, COULD INCLUDE AN
INDEMNIFICATION BY TENANT OF AN
INDEMNITEE FROM CLAIMS OR LOSSES ARISING AS A RESULT OF
AN INDEMNITEE’S SOLE NEGLIGENCE.




          (i) In the event of any conflict or inconsistency between the provisions of this
Paragraph 37 and the other provisions of this Lease, the provisions of this Paragraph 37 will
govern.



     [THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK]



-51-









 





          IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed under seal as of the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	CP GAL PLAINFIELD, LLC,	 	 
	 	 	 	 	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By: CP GAL (IN) QRS 16-61, INC., its managing
member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Jason Fox	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name: Jason Fox	 	 
	 	 	 	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	DICK’S SPORTING GOODS, INC.	 	 
	 	 	 	 	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 







	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Title:	 	 	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	[Corporate Seal]	 	 	 	 	 	 	 	 






-52-









 






          IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed under seal
as of the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	CP GAL PLAINFIELD, LLC,	 	 
	 	 	 	 	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	DICK’S SPORTING
GOODS, INC.	 	 
	 	 	 	 	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	/s/ [ILLEGIBLE]	 	 	 	By:
	 	/s/ Douglas W. Walord	 	 
	 

	 
	 	 	 	 	 	 	 	 
	Title:
	 	Director - Legal	 	 	 	Name:
	 	Douglas W. Walrod	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	 	Senior Vice President -	 	 
	 

	 	 	 	 	 	 	 	Real Estate and Development	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	[Corporate Seal]	 	 	 	 	 	 	 	 






 









 






EXHIBIT
A-1




ORIGINAL LAND



Lot 1 of the Final Plat — Westcor, Phase I “An Incremental Phase Plat of Westcor” being part of the
North Half of Section 31, Township 15 North, Range 2 East located in Plainfield, Indiana and
recorded as Instrument Number 9700007298 in Plat Cabinet 4, Slide 87, pages 1 and 2 in the Office
of the Recorder of Hendricks County, Indiana.




 









 








EXHIBIT A-2




EXPANSION LAND



Lot 2 of the Plat of Westcor, Phase I, Lot 2 (the “Plat”) being part of the north half of Section
31, Township 15 North, Range 2 East located in the Town of Plainfield, Indiana and recorded on
November 2, 2005 as Instrument Number 200500033867 in Plat Cabinet 6, Slide 90, page 2 in the
Office of the Recorder of Hendricks County, Indiana. The land being herein conveyed includes the
entire 36.983 acres, more or less, as described in the “Land Description” section of the Plat, less
and except all right, title and interest of the Town of Plainfield in and to that certain 0.423
acres, more or less, as dedicated and depicted in said Plat.




 









 









EXHIBIT B




MACHINERY AND EQUIPMENT



All fixtures, machinery, apparatus, equipment, fittings and appliances of every kind and nature
whatsoever now or hereafter affixed or attached to or installed in any of the Leased Premises
(except as hereafter provided), including all electrical, anti-pollution, heating, lighting
(including hanging fluorescent lighting), incinerating, power, air cooling, air conditioning,
humidification, sprinkling, plumbing, lifting, cleaning, fire prevention, fire extinguishing and
ventilating systems, devices and machinery and all engines, pipes, pumps, tanks (including exchange
tanks and fuel storage tanks), motors, conduits, ducts, steam circulation coils, blowers, steam
lines, compressors, oil burners, boilers, doors, windows, loading platforms, lavatory facilities,
stairwells, fencing (including cyclone fencing), passenger and freight elevators, overhead cranes
and garage units, together with all additions thereto, substitutions therefor and replacements
thereof required or permitted by this Lease, but excluding all personal property and all trade
fixtures, machinery, office, manufacturing and warehouse equipment which are not necessary to the
operation of the buildings which constitute part of the Leased Premises for the uses permitted
under Paragraph 4(a) of this Lease.










 










 






EXHIBIT C




PERMITTED ENCUMBRANCES — ORIGINAL LAND




     1. Hendricks County Drainage System and any assessment thereto.



     2. Municipal Assessments to the Town of Plainfield, Indiana.



     3. Ten (10) foot building set back line along the north and south lines of Lot 1 as shown on
the plat recorded as Instrument Number 97-7298, in Plat Cabinet 4, Slide 87, pages 1 and 2, in the
Office of the Recorder of Hendricks County, Indiana.



     4. One hundred (100) foot building set back line along the west line of Lot 1 as shown on the
plat recorded as Instrument Number 97-7298, in Plat Cabinet 4, Slide 87, pages 1 and 2, in the
Office of the Recorder of Hendricks County, Indiana.



     5. Fifteen (15) foot building set back line along the east line of lot as shown on the plat
recorded as Instrument Number 97-7298 in Plat Cabinet 4, Slide 87, pages 1 and 2, in the Office of
the Recorder of Hendricks County, Indiana.



     6. Fifteen (15) foot drainage and utility easement along the north, east and west lines of Lot
1 as shown on the plat recorded as Instrument Number 97-7298, in Plat Cabinet 4, Slide 87, pages 1
and 2, in the Office of the Recorder of Hendricks County, Indiana. Said easement is depicted on the
ALTA/ACSM survey prepared by The Schneider Corporation as Job No. 1115.007 dated December 10,1998
(the “1998 Survey”).



     7. Encroachment upon property adjoining on the east by the fence appurtenant to insured
premises, as shown on 1998 Survey.



     8. Subject to off-site water drainage in and to the detention pond encroaching along the south
line of the Original Land as shown on the 1998 Survey.



     9. Taxes and assessments for the year 2005 and subsequent years.



     10. Rights or claims of parties in possession not shown by the public records.



     11. Easements, or claims of easements, roads, ways or streams not shown by the public
records.



     12. Any encroachments, overlaps, boundary line disputes, variations in area or content, party
walls and/or any other matters which would be disclosed by an accurate survey or inspection of the
premises.



     13. Any facts, rights, interests, or claims which are not shown by the public records but
which could be ascertained by an inspection of said land or by making inquiry of persons in
possession thereof.



 









 





     14. Any lien, or right to a lien, for services, labor or material heretofore or
hereafter furnished.



     15. Planning, zoning and subdivision regulations and restrictions.



PERMITTED ENCUMBRANCES — EXPANSION




     1. Hendricks County Drainage System and any assessment thereto.



     2. Municipal Assessments to the Town of Plainfield, Indiana.



     3. Rights of way for drainage tile, ditches, feeders and laterals, if any, as depicted n on
the ALTA/ACSM survey prepared by The Schneider Corporation as Job No. 115.029 dated September 13,
2005 (the “2005 Survey”).



     4. Easements, restrictions and encumbrances as shown on the plat recorded as Instrument
Number 200500033867 in Plat Cabinet 6, Slide 90, page 2, in the Office of the Recorder of
Hendricks County, Indiana.



     5. Taxes and assessments for the year 2005 and subsequent years.



     6. Rights or claims of parties in possession not shown by the public records.



     7. Easements, or claims of easements, roads, ways or streams not shown by the public records.



     8. Any encroachments, overlaps, boundary line disputes, variations in area or content, party
walls and/or any other matters which would be disclosed by an accurate survey or inspection of the
premises.



     9. Any facts, rights, interests, or claims which are not shown by the public records but which
could be ascertained by an inspection of said land or by making inquiry of persons in possession
thereof.



     10. Any lien, or right to a lien, for services, labor or material heretofore or hereafter
furnished.



     11. Planning, zoning and subdivision regulations and restrictions.



 









 





EXHIBIT D




BASIC RENT PAYMENTS




     1. Schedule Basic Rent. Commencing on the date hereof, and continuing on the
twenty-fifth day of each succeeding month (each a “Basic Rent Payment Date”) Schedule Basic
Rent shall be payable in the amounts set forth on Schedule “D-l” attached hereto, and shall
be payable monthly, in advance, on each Basic Rent Payment Date. Pro rata Schedule Basic Rent for
the period from the date hereof through the last day of the calendar month in which the Primary
Term Commencement Date of this Lease occurs shall be paid on the date hereof.



     2. Expansion Basic Rent to and Including the Funding Deadline.



          (a) In addition to the Schedule Basic Rent, commencing on the date hereof, and continuing on
each succeeding Basic Rent Payment Date to and including the month in which the Funding Deadline
occurs, Expansion Basic Rent shall be payable monthly on each Basic Rent Payment Date in an amount
equal to (x) LIBOR plus 400 basis points, multiplied by (y) the amount advanced by Landlord for
Landlord’s Share of Project Costs (exclusive of the Acquisition Fee) for the Leased Premises, which
shall be calculated based on the number of days each advance is outstanding prior to such Basic
Rent Payment Date. The amount set forth in the foregoing sentence shall, absent manifest error, be
conclusively determined from the books and records of Landlord. Tenant shall have the right, upon
reasonable prior notice, to inspect Landlord’s books and records relevant to such determination to
verify the accuracy of Landlord’s calculation of Basic Rent. If the Funding Deadline occurs on a
date other than the first calendar day of the month, then such Expansion Basic Rent under this
Paragraph 2 shall be prorated for such final month.




          (b) For so long as no Event of Default has occurred and is then continuing, on each Basic Rent
Payment Date that occurs on or prior to, but not after the Funding Deadline, and relates to any
period occurring prior to the Funding Deadline, Landlord shall approve as an advance of Landlord’s
Share of Project Costs, the monthly installments of Expansion Basic Rent payable by Tenant under
this Paragraph 2 and will credit each such advance against the installment of Expansion Basic Rent
then due and owing; provided, however, that (i) from and after the Funding Deadline Landlord’s
obligation to make any further advance for future installments of Basic Rent shall terminate and
all such future payments of Expansion Basic Rent shall be made by Tenant, and (ii) upon the
occurrence and during the continuation of an Event of Default, Landlord shall have no obligation to
make any further advances for installments of Expansion Basic Rent payable under this Paragraph 2,
and Tenant shall make all further payments of Expansion Basic Rent from its own funds unless and
until any such Event of Default is cured.




          (c) If for any reason the Funding Deadline does not occur prior to the first Expansion Basic
Rent Adjustment Date (as defined in Paragraph 5 below), the Expansion Basic Rent payable for the
Leased Premises from and after the first Expansion Basic Rent Adjustment Date shall be the sum of
Expansion Basic Rent calculated in accordance with the foregoing




 









 







paragraphs 2(a) and 2(b) and shall be subject to adjustment as provided in Paragraphs 4, 5, and 6
below.




     3. Expansion Basic Rent From and After The Funding Deadline.



          Commencing on the Basic Rent Payment Date for the month in which the Funding Deadline occurs
and continuing on each Basic Rent Payment Date thereafter (including each basic Rent Payment
occurring during each Renewal Term) until the expiration of the Term, Expansion Basic Rent shall be
payable in an amount equal to one twelfth (1/12) of the product of 9.90% multiplied by Landlord’s
Share of Project Costs for the Leased Premises, subject to adjustment as provided in Paragraph 4, 5
and 6 below. Promptly following the Initial Term Commencement Date, Landlord and Tenant shall
execute an addendum to this Lease setting forth the numerical amount of the initial annual and
monthly payments of Expansion Basic Rent payable for the Leased Premises. If the Funding Deadline
occurs on a date other than the first calendar day of the month, then such Basic Rent under this
Paragraph 3 shall be prorated for such initial month, so that there shall be no duplication of the
Basic Rent due under Paragraph 2 above and this Paragraph 3 for any given calendar day.




     4. CPI Adjustments to Expansion Basic Rent. The Expansion Basic Rent shall be subject
to adjustment, in the manner hereinafter set forth, for increases in the index known as United
States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, All Urban Consumers,
United States City Average, All Items, (1982-84=100)
(“CPI”) or the successor index that most
closely approximates the CPI. If the CPI shall be discontinued with no successor or comparable
successor index, Landlord and Tenant shall attempt to agree upon a substitute index or formula, but
if they are unable to so agree, then the matter shall be determined by arbitration in accordance
with the rules of the American Arbitration Association then prevailing in New York City. Any
decision or award resulting from such arbitration shall be final and binding upon Landlord and
Tenant and judgment thereon may be entered in any court of competent
jurisdiction. In no event will
the annual Expansion Basic Rent as adjusted by the CPI adjustment be less than the annual Expansion
Basic Rent in effect for the one (1) year period immediately preceding such adjustment.



     5. Effective Dates of Expansion Basic Rent Increases. Expansion Basic Rent shall not
be adjusted until the fifth (5th) anniversary of the Basic Rent Payment Date on which
the first full monthly installment of Expansion Basic Rent shall be due and payable (the “First
Full Expansion Basic Rent Payment Date”). As of such fifth (5th) anniversary of the
First Full Expansion Basic Rent Payment Date and thereafter on the tenth (10th), and, if
the Initial Term is extended then on the fifteenth (15th), twentieth (20th),
twenty-fifth (25th), thirtieth (30th), thirty- fifth (35th),
fortieth (40th) and forty-fifth (45th) anniversaries of the First Full Basic Rent
Payment Date (each such date being hereinafter referred to as the “Expansion Basic Rent
Adjustment Date”), Expansion Basic Rent shall be adjusted to reflect increases in the CPI
during the most recent five (5) year period immediately preceding each of the foregoing dates.
Effective as of a given Expansion Basic Rent Adjustment Date, Expansion Basic Rent payable under
this Lease until the next succeeding Expansion Basic Rent Adjustment Date shall be the Expansion
Basic Rent in effect after the adjustment provided for as of such Expansion Basic Rent Adjustment
Date.



-2-









 





     6. Method of Adjustment for CPI Adjustment.



          (a) As of each Expansion Basic Rent Adjustment Date when the average CPI determined in clause
(i) below exceeds the Beginning CPI (as defined in this Paragraph 6(a)), the Expansion Basic Rent
in effect immediately prior to the applicable Expansion Basic Rent Adjustment Date shall be
multiplied by a fraction, the numerator of which shall be the difference between (i) the average
CPI for the three (3) most recent calendar months (the
“Prior Months”) ending prior to such Expansion Basic Rent Adjustment Date for which the CPI has been published on or before the
forty-fifth (45th) day preceding such Expansion Basic Rent Adjustment Date and (ii) the Beginning
CPI, and the denominator of which shall be the Beginning CPI. An amount equal to the lesser of (x)
the product of such multiplication, or (y) 12% of the Expansion Basic Rent in effect immediately
prior to such Expansion Basic Rent Adjustment Date, shall be added to the Expansion Basic Rent in
effect immediately prior to such Basic Rent Adjustment Date. As used
herein, “Beginning CPI” shall
mean the average CPI for the three (3) calendar months corresponding to the Prior Months, but
occurring five (5) years earlier. If the average CPI determined in clause (i) is the same or less
than the Beginning CPI, the Expansion Basic Rent will be 100% of the Expansion Basic Rent in effect
immediately prior to such Expansion Basic Rent Adjustment Date.




          (b) Effective as of a given Expansion Basic Rent Adjustment Date, Expansion Basic Rent payable
under this Lease until the next succeeding Expansion Basic Rent Adjustment Date shall be the
Expansion Basic Rent in effect after the adjustment provided for as of such Expansion Basic Rent
Adjustment Date.




          (c) Notice of the new annual Expansion Basic Rent shall be delivered to Tenant on or before
the tenth (10th) day preceding each Expansion Basic Rent Adjustment Date, but any failure to do so
by Landlord shall not be or be deemed to be a waiver by Landlord of Landlord’s rights to collect
such sums. Tenant shall pay to Landlord, within ten (10) days after a notice of the new annual
Expansion Basic Rent is delivered to Tenant, all amounts due from Tenant, but unpaid, because the
stated amount as set forth above was not delivered to Tenant at least ten (10) days preceding the
Expansion Basic Rent Adjustment Date in question.





-3-









 









SCHEDULE
D-1




SCHEDULE BASIC RENT




-4-









 








SCHEDULE
D-1




SCHEDULE BASIC RENT




	 	 	 	 	 
	Period	 	Annual	 	Monthly
	Primary Term Commencement
	 	$1,242,702.18	 	$103,558.52
	Date through January 31, 2006
	 	 	 	 
	 
	 	 	 	 
	February 1, 2006 through
	 	$1,261,342.72	 	$105,111.89
	January 31, 2007
	 	 	 	 
	 
	 	 	 	 
	February 1, 2007 through
	 	$1,280,262.86	 	$106,688.57
	January 31, 2008
	 	 	 	 
	 
	 	 	 	 
	February 1, 2008 through
	 	$1,299,466.80	 	$108,288.90
	January 31, 2009
	 	 	 	 
	 
	 	 	 	 
	February 1, 2009 through
	 	$1,318,958.80	 	$109,913.23
	January 31, 2010
	 	 	 	 
	 
	 	 	 	 
	February 1, 2010 through
	 	$1,338,743.18	 	$111,561.93
	January 31, 2011
	 	 	 	 
	 
	 	 	 	 
	February 1, 2011 through
	 	$1,358,824.33	 	$113,235.36
	January 31, 2012
	 	 	 	 
	 
	 	 	 	 
	February 1, 2012 through
	 	$1,379,206.70	 	$114,933.89
	January 31, 2013
	 	 	 	 
	 
	 	 	 	 
	February 1, 2013 through
	 	$1,399,894.80	 	$116,657.90
	January 31, 2014
	 	 	 	 
	 
	 	 	 	 
	February 1, 2014 through
	 	$1,420,893.22	 	$118,407.77
	January 31, 2015
	 	 	 	 
	 
	 	 	 	 
	February 1, 2015 through
	 	$1,442,206.62	 	$120,183.88
	January 31, 2016
	 	 	 	 
	 
	 	 	 	 
	February 1, 2016 through
	 	$1,463,839.72	 	$121,986.64
	January 31, 2017
	 	 	 	 
	 
	 	 	 	 
	February 1, 2017 through
	 	$1,485,797.31	 	$123,816.44
	January 31, 2018
	 	 	 	 
	 
	 	 	 	 
	February 1, 2018 through
	 	$1,508,084.27	 	$125,673.69
	January 31, 2019
	 	 	 	 
	 
	 	 	 	 
	February 1, 2019 through
	 	$1,530,705.54	 	$127,558.79
	January 31, 2020
	 	 	 	 
	 
	 	 	 	 
	February 1, 2020 through
	 	$1,553,666.12	 	$129,472.18
	January 31, 2021
	 	 	 	 
	 
	 	 	 	 
	February 1, 2021 through
	 	$1,576,971.11	 	$131,414.26
	January 31, 2022
	 	 	 	 








 









 










SCHEDULE D-l




SCHEDULE BASIC RENT — CONT




	 	 	 	 	 	 	 	 	 
	Period	 	Period	 	 	Period	 
	First Renewal Option
	 	$	1,576,971.11	 	 	$	131,414.26	 
	 
	 	 	 	 	 	 	 	 
	Second Renewal Option
	 	$	1,698,845.75	 	 	$	141,570.48	 
	 
	 	 	 	 	 	 	 	 
	Third Renewal Option
	 	$	1,830,139.35	 	 	$	152,511.61	 
	 
	 	 	 	 	 	 	 	 
	Fourth Renewal Option
	 	$	1,971,579.85	 	 	$	164,298.32	 
	 
	 	 	 	 	 	 	 	 
	Fifth Renewal Option
	 	$	2,123,951.44	 	 	$	176,995.95	 
	 
	 	 	 	 	 	 	 	 
	Sixth Renewal Option
	 	$	2,288,098.91	 	 	$	190,674.91	 
	 
	 	 	 	 	 	 	 	 
	Seventh Renewal Option
	 	$	2,464,932.35	 	 	$	205,411.03	 






- 2 -









 







EXHIBIT E




FORM OF ADDENDUM TO AMENDED AND RESTATED LEASE AGREEMENT




Made as of this        
             
  day of                                         , 20                    .



THIS ADDENDUM (this “Addendum”) to the Amended and Restated Lease Agreement, dated
as of
                    ,
200___ (the “Lease”), by and between [W. P. Carey Entity], a                                         
(“Landlord”), and           
          , a                     
corporation (“Tenant”), covering property located in
           
                               .
(All terms used and not defined herein shall have the meaning assigned to such term in the
Lease.)




          1.
The Funding Deadline is ________, 200_.




          2.
The Final Completion Date is ________, 200_.




          3. Initial Term Commencement Date is                     , 200_.




          4. The First Full Expansion Basic Rent Payment Date is                     ,
200_.




          5. Project Cost (exclusive of the Acquisition Fee) is $                    .




          6. Landlord’s Share of Project Costs is $                    .




          7. The initial Expansion Basic Rent per annum is $                    .




          8. The current Schedule Basic Rent is $                    .




          9.
The square footage of all buildings comprising the Improvements is                     .




     Except as specifically set forth herein, this Addendum shall not be deemed or construed to
alter or amend the Lease in any manner.



     IN WITNESS WHEREOF, Landlord and Tenant have caused this Addendum to be duly executed under
seal as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 
	 	 	CP GAL PLAINFIELD, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 	 	By: CP GAL (IN) QRS 16-61, INC., its managing member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

	 	 






-1-









 






	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	TENANT:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	DICK’S SPORTING GOODS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 

	 	 






-2-









 






EXHIBIT F




TERMINATION FEE SCHEDULE




	 	 	 	 	 
	Lease Year	 	Total Termination	 
	2005
	 	 	29,421,092	 
	2006
	 	 	29,210,512	 
	2007
	 	 	29,060,894	 
	1*
	 	 	28,056,702	 
	2
	 	 	26,933,619	 
	3
	 	 	25,762,097	 
	4
	 	 	24,815,602	 
	5
	 	 	23,422,951	 
	6
	 	 	22,281,382	 
	7
	 	 	21,025,564	 
	8
	 	 	19,832,197	 
	9
	 	 	18,639,245	 
	10
	 	 	17,295,703	 
	11
	 	 	17,199,736	 
	12
	 	 	15,852,588	 
	13
	 	 	14,725,826	 
	14
	 	 	13,529,977	 
	15, and
	 	 	11,624,358	 
	Thereafter
	 	 	11,624,358	 






 





*Designates the applicable Lease Year of the Initial Term; so that Lease Year 1 above
begins at the Funding Deadline.




-3-