exv10w1



 






Exhibit 10.1




	 	 	 
	 

	 	Store No. «Store_»
	 

	 	«Site_Address»
	 

	 	«City», «ST» «Zip_Code»






LEASE AGREEMENT




Between




«BuyerLandlord»,

«Corp_Info»

as Landlord,




and




SSP PARTNERS,

a Texas general partnership,

as Tenant,





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	ARTICLE I. AGREEMENT TO LEASE	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1	 	Demise	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.2	 	Condition	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.3	 	Quiet Enjoyment	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II. TERM	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1	 	Term	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.2	 	Rental Commencement Date	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.3	 	Effective Date	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.4	 	Option to Renew	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.5	 	Termination	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III. RENT	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1	 	Base Rent	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.2	 	Annual Rent Increases	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.3	 	Additional Rent;  Rent Defined	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.4	 	Payment of Rent	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.5	 	Past Due Rent	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.6	 	No Diminution or Abatement of Rent	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV. USE AND OPERATION OF PREMISES	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1	 	Permitted Use	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.2	 	Reserved	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.3	 	Compliance With Laws	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.4	 	Compliance With Restrictions, Etc	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.5	 	Hazardous Materials and Sewage	 	 	8	 
	 
	 	 	 	 	 	 	 	 





i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.6	 	Resolution of Environmental Matters at Expiration or Termination of Tenancy	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.7	 	Right to Contest	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.8	 	Sewage	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.9	 	Survival	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V. TAXES AND ASSESSMENTS	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1	 	Real Estate Taxes and Assessments	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI. UTILITIES	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII. RESERVED	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII. INSURANCE	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.1	 	Insurance by Tenant	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.2	 	Carriers and Features	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.3	 	Failure to Procure Insurance	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.4	 	Self Insurance	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX. ADDITIONS, ALTERATIONS AND REMOVALS	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.1	 	Prohibition	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.2	 	Permitted Renovations	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X. MAINTENANCE AND REPAIRS	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.1	 	Repairs by Tenant	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.2	 	Landlord’s Obligation	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI. DAMAGE OR DESTRUCTION	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	11.1	 	Restoration and Repair	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	 
	 	11.2	 	Escrow of Insurance Proceeds	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	11.3	 	Uninsured Losses	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII. CONDEMNATION	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.1	 	Complete Taking	 	 	22	 






ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.2	 	Partial Taking	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.3	 	Award	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.4	 	Disputes	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII. LANDLORD’S RIGHT TO INSPECT	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV. ASSIGNMENT AND SUBLETTING BY TENANT	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XV. LANDLORD’S INTEREST NOT SUBJECT TO LIENS	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.1	 	Liens, Generally	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.2	 	Mechanics Liens	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.3	 	Contest of Liens	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.4	 	Notices of Commencement of Construction	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVI. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 
	 	16.1	 	Subordination	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 
	 	16.2	 	Attornment	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	16.3	 	Rights of Mortgagees and Assignees	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVII. END OF TERM	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.1	 	Surrender of Premises	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.2	 	Holding Over	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.3	 	Reserved	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVIII. LIABILITY OF LANDLORD; INDEMNIFICATION	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	18.1	 	Liability of Landlord	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	18.2	 	Indemnification of Landlord	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 
	 	18.3	 	Notice of Claim or Suit/Notice of Environmental Matters	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 
	 	18.4	 	Limitation on Liability of Landlord	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIX. DEFAULT	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.1	 	Events of Default	 	 	29	 
	 
	 	 	 	 	 	 	 	 





iii








 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.2	 	Remedies on Default	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.3	 	Landlord May Cure Tenant Defaults	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.4	 	Waiver of Landlord’s Lien	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.5	 	Rights Cumulative	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XX. NOTICES	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XXI. MISCELLANEOUS	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.1	 	“Triple Net” Lease	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.2	 	Estoppel Certificates	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.3	 	Brokerage	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.4	 	No Partnership or Joint Venture	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.5	 	Entire Agreement	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.6	 	Waiver	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.7	 	Time	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.8	 	Costs and Attorneys’ Fees	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.9	 	Financial Data	 	 	36	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.10	 	Captions and Headings	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.11	 	Severability	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.12	 	Successors and Assigns	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.13	 	Applicable Law	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.14	 	Recordation of Memorandum of Lease	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.15	 	Waiver of Jury Trial	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.16	 	Counterparts	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.17	 	Not a Security Arrangement	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.18	 	Maintenance Records and Contracts	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.19	 	Tenant’s Personal Property	 	 	37	 
	 
	 	 	 	 	 	 	 	 





iv









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.20	 	Landlord’s Cooperation	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.21	 	Reserved	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.22	 	Guaranty	 	 	38	 






v









 






	 	 	 	 	 
	Exhibit A

	 	—
	 	Legal Description
	 	 	 	 	 	 
	Exhibit B

	 	—
	 	Tenant Estoppel Certificate
	 	 	 	 	 	 
	Exhibit C

	 	—
	 	Memorandum of Lease
	 	 	 	 	 	 
	Exhibit D

	 	—
	 	Other Leases — List of Other Properties
	 	 	 	 	 	 
	Schedule 1

	 	—
	 	Financial Data






vi













 






LEASE AGREEMENT




     THIS LEASE AND AGREEMENT (the “Lease”) is made and entered into effective as of the
___ day of December, 2005 by and between , , (the “Landlord”), and SSP PARTNERS, a Texas
general partnership (the “Tenant”).



W I T N E S S E T H:




     WHEREAS, Tenant or Tenant’s affiliate is the owner of fee simple title to certain real
property located in the City of , County of , State of and described in Exhibit A
attached hereto (the “Land”) upon which a building has been constructed, together with
related site improvements including: (i) the Storage Tank System as defined in Section 4.5 of this
Lease, (ii) canopies on the pump islands, and (iii) the car wash, if any, located in, on or under
the Land (collectively, the “Improvements”) (the Land and the Improvements, together with
all licenses, rights, privileges and easements appurtenant thereto shall be collectively referred
to herein as the “Premises”);



     WHEREAS, simultaneously with the date of this Lease Tenant or Tenant’s affiliate has conveyed
the Premises to Landlord together with certain other properties owned by Tenant or Tenant’s
affiliates; and



     WHEREAS, Tenant desires to lease back from Landlord, and Landlord has agreed to lease back to
Tenant, all of the Premises upon the terms and conditions as more particularly hereinafter provided
and described;



     NOW, THEREFORE, for and in consideration of the premises hereof, the sums of money to be paid
hereunder, and the mutual and reciprocal obligations undertaken herein, the parties hereto do
hereby covenant, stipulate and agree as follows:



ARTICLE I.

AGREEMENT TO LEASE




     1.1 Demise. Landlord does hereby demise, let and lease unto Tenant, and Tenant does
hereby hire, lease and take as Tenant from Landlord the entire Premises upon those terms and
conditions hereinafter set forth.



     1.2 Condition. Tenant acknowledges and agrees that the Premises is and shall be
leased by Landlord to Tenant in its present “as is” condition, and that Landlord makes absolutely
no representations or warranties whatsoever with respect to the Premises or the condition thereof.
Tenant acknowledges that Landlord has not investigated and does not warrant or represent to Tenant
that the Premises are fit for the purposes intended by Tenant or for any other purpose or purposes
whatsoever, and Tenant acknowledges that the Premises are to be leased to Tenant in their existing
condition, i.e., “as-is”, on and as of the Effective Date. Tenant acknowledges that Tenant shall
be solely responsible for any and all actions, repairs, permits, approvals and costs
required for the rehabilitation, renovation, use, occupancy and operation of the Premises in
accordance with applicable governmental requirements, including, without limitation, all
governmental charges and fees, if any, which may be due or payable to applicable authorities.
Tenant agrees that, by leasing the Premises, Tenant warrants and represents that Tenant has



1









 







examined and approved all things concerning the Premises which Tenant deems material to Tenant’s
leasing and use of the Premises. Tenant further acknowledges and agrees that (a) neither Landlord
nor any agent of Landlord has made any representation or warranty, express or implied, concerning
the Premises or which have induced Tenant to execute this Lease except as contained in this Lease,
and (b) any other representations and warranties are expressly disclaimed by Landlord.



     1.3 Quiet Enjoyment. Landlord covenants and agrees that so long as Tenant shall
timely pay all rents due to Landlord from Tenant hereunder and keep, observe and perform all
covenants, promises and agreements on Tenant’s part to be kept, observed and performed hereunder,
Tenant shall and may peacefully and quietly have, hold and occupy the Premises free of any
interference from Landlord; subject, however, and nevertheless to the terms, provisions and
conditions of this Lease.



ARTICLE II.

TERM




     2.1 Term. The initial term of this Lease (the “Initial Term”) shall, unless
sooner terminated as elsewhere provided in this Lease, commence on the Effective Date and shall
terminate and expire at 11:59 p.m. on the date immediately preceding the twentieth
(20th) anniversary of the Effective Date. The Initial Term, together with any properly
exercised Option Period (defined in Section 2.4 below) shall be collectively referred to herein as
the “Term”.



     2.2 Rental Commencement Date. For the purposes of this Lease, the “Rental
Commencement Date” shall be the Effective Date hereof.



     2.3 Effective Date. For the purposes of this Lease, the “Effective Date”
shall be the date set forth in the first paragraph of this Lease.



     2.4 Option to Renew.2.5 Tenant shall have and is hereby granted five (5) options
(individually an “Option”) to extend this Lease beyond the Initial Term for an additional
period of five (5) years each (individually an “Option Period”), upon the same terms,
covenants, conditions and rental as set forth herein. Tenant may exercise each such Option
successively by giving written notice to Landlord not less than six (6) months prior to the
expiration of the Initial Term of this Lease or
expiration of the then current Option Period, as applicable (the “Option Notice”).
Notwithstanding the foregoing, Tenant shall not be entitled to extend the Term of this Lease if, at
the time of exercise of an Option, an Event of Default has occurred and is continuing. If Tenant
does not elect to extend, or shall not be entitled pursuant to the preceding sentence to extend the
Term of this Lease for an additional Option Period, all remaining rights of renewal shall
automatically expire.



     Notwithstanding anything else contained herein, if Tenant exercises an Option hereunder and if
the Base Rent for such Option Period (pursuant to the calculation called for in Section 3.2(f)
hereof), (i) is less than the Base Rent that would be arrived at if the Base Rent was increased
pursuant to Section 3.2(e), then Landlord may reject said Option Notice by delivering a written
notice of rejection to Tenant (the “Rejection Notice”), and (ii) if the Base Rent for such
Option Period (pursuant to the calculation called for in Section 3.2(f) hereof), is more than the



2









 







Base Rent that would be arrived at if the Base Rent was increased pursuant to Section 3.2(e), the
Tenant may withdraw its Option Notice by delivering written notice of withdrawal of the Option
Notice within thirty (30) days of determination of amount of Base Rent under Section 3.2(f).
Should Landlord deliver a Rejection Notice to Tenant or should Tenant withdraw its Option Notice as
provided for above, Tenant’s Option Notice shall be void and of no effect and the Lease shall
expire and terminate at the end of the then current Option Term. However, Tenant may, at its
option, extend the Term for the applicable Option Period after receipt of Landlord’s Rejection
Notice, by delivering within thirty (30) days of receipt of Landlord’s Rejection Notice a second
Option Notice (the “Second Option Notice”) stating that Tenant desires to extend the Term
for the Option Period and Tenant agrees to pay Base Rent equal to Base Rent obtained by the
application of the formula set forth in Section 3.2(e) hereof. Tenant shall have no obligation
hereunder to deliver a Second Option Notice or to so extend the Lease under the terms required in a
Second Option Notice. Should Tenant timely deliver to Landlord a Second Option Notice which
complies with the requirements of this Section, the Term of the Lease shall be extended for the
applicable Option Period at the Base Rent called for in the Second Option Notice.



     2.5 Termination. Notwithstanding any present or future law to the contrary, this
Lease shall not be terminated by Tenant for any failure of Landlord to perform pursuant to the
terms and conditions of this Lease or otherwise for any reason except as expressly provided herein.



ARTICLE III.

RENT




     3.1 Base Rent. Beginning on the Rental Commencement Date, and subject to proration as
set forth below, Tenant shall pay annual base rent for the Premises for the first Lease Year in
equal monthly installments of (“Base Rent”), together with any sales and use taxes
thereon, if any are ever imposed in the State where the Premises is located. Such Base Rent shall
be paid in advance, on the first (1st) day of each calendar month commencing on the first (1st) day
of the calendar month immediately following the Rental Commencement Date, it being agreed that Base
Rent payable with respect to the period between the Rental Commencement
Date and the first day of the following calendar month shall be due at the time that the first
payment of Base Rent is due.



     For the purposes of this Lease, the term “Lease Year” shall mean and be defined as
each twelve month period commencing on the first day of the calendar month immediately following
the Rental Commencement Date; provided, however, that the first Lease Year shall include the period
from the Rental Commencement Date to the first day of the next following calendar month after the
Rental Commencement Date. Base Rent shall be proportionately prorated for any extended or partial
Lease Year (i.e., the first Lease Year and/or the final Lease Year).



     3.2 Annual Rent Increases. The capitalized terms used herein are defined below. Base
Rent shall be increased each Lease Year during the Term of the Lease, as more particularly set
forth below.



               (a)«Alternate_1»«Alternate_2»



3









 





               (b)«Alternate_3»«Alternate_4»



               (c) On each of the tenth through nineteenth Adjustment Dates, Base Rent shall increase by the
percentage increase in the CPI, subject to the Increase Cap set forth below. The increases in Base
Rent will be calculated as follows: (i) subtract one point zero (1.0) from a fraction, the
numerator of which shall be the Variable Index, and the denominator of which shall be the Base
Index; and then (ii) multiply the result obtained in subpart (i) above by the Base Rent for the
Lease Year immediately prior to the Adjustment Date. Notwithstanding the foregoing, in no event
shall the increase in Base Rent on the eleventh through nineteenth Adjustment Dates exceed one and
one half percent (1.5%) (the “Increase Cap”), and in no event shall the new Base Rent be
less than the Base Rent for the Lease Year prior to the Adjustment Date.



               (d) INTENTIONALLY OMITTED.



               (e) At the beginning of the 1st Option Period exercised by Tenant hereunder, Base
Rent shall be initially set to the Base Rent which would be arrived at by increasing the Base Rent
for the Lease Year prior to the applicable Option Period by the percentage increase in the CPI,
using the same formula set forth in subsection 3.2(c) above and subject to the Increase Cap.



               (f) At the beginning of each remaining Option Period, if any, exercised by Tenant hereunder,
Base Rent shall be initially set the Fair Market Rental Value of the Premises as of the date of the
commencement of the Option Period.



               (g) After the resetting of the Base Rent for the beginning of each Option Period as provided
for in subsection 3.2(e) or 3.2(f) above, Base Rent shall increase each Lease Year on each
Adjustment Date in the applicable Option Period by the percentage increase in the CPI, using the
same formula set forth in subsection 3.2(c) above and subject to the Increase Cap.



               (h) Landlord’s delay or the failure of Landlord, beyond commencement of any Adjustment Date in
computing or billing for these adjustments will not impair the continuing obligation of Tenant to
pay any and all Base Rent or other Rent due hereunder including any increased Base Rent when
billed.



               (i) In applying the foregoing formula for Base Rent adjustments, the following terms shall
have the following meaning:



                    (1) “Adjustment Date” shall mean, as the case may require, the first (1st)
day of the second Lease Year, and the first day of each succeeding Lease Year during the Term,
including any Option Periods.



                    (2) “Base Index” for the first Adjustment Date shall mean the CPI for the month which
is two months prior to the Rent Commencement Date. Thereafter, the Base Index shall mean the CPI
for the month which is two months prior to the prior Adjustment Date.



4









 







By way of example, for the
first Adjustment Date, the Base Index will be the CPI for the month which is two months prior to
the Rent Commencement Date, for the second Adjustment Date, the Base Index will be the CPI for the
month which is two months prior to the first Adjustment Date, for the third Adjustment Date the
Base Index will be the CPI for the month which is two months prior to the second Adjustment Date,
etc.



                    (3) “CPI” shall mean the Consumer Price Index for All Urban Consumers, All Items,
U.S.A. Area, 1982-1984 = 100, as published by the Bureau of Labor Statistics, United States
Department of Labor (U.S. City Average). If such index is discontinued, CPI shall then mean the
most nearly comparable index published by the Bureau of Labor Statistics or other official agency
of the United States Government as determined by Landlord.



                    (4) “Fair Market Rental Value” shall mean the market rent for the Premises as
determined as follows: Landlord and Tenant shall each appoint an independent appraiser who is a
designated member (MAI) in good standing with the Appraisal Institute, having at least ten (10)
years experience in appraising properties similar to the Premises. Each appraiser is encouraged to
share market data information with each other. Each appraiser shall prepare and submit a written
appraisal of the Fair Market Value of the Premises within sixty (60) days after either party so
requests. The Fair Market Value shall be calculated as of the date of said request. If the
difference, if any, between the highest appraisal submitted and the lowest appraisal submitted is
an amount less than or equal to ten percent (10%) of the amount of the lesser appraisal, the
appraised Fair Market Value of the Premises shall be deemed to be equal to the numerical average of
the amounts of the two (2) appraisals submitted. If the difference between the two (2) appraisals
submitted is an amount greater than ten percent (10%) of the amount of the lesser appraisal, then
the two appraisers shall appoint a third appraiser within thirty (30) days after the two appraisers
have submitted their reports. The third appraiser shall prepare and submit a written appraisal of
the Premises within forty (40) days after such appraiser’s appointment. If a third appraiser is
required to be submitted, the appraised Fair Market Value of the Premises shall be deemed to be
equal to the numerical average of the two (2) appraisals that have the closest value. If the two
appraisers are unable to agree to the
appointment of the third appraiser, then either party may request such appointment by a
presiding district court judge for County, . Such appointed third appraiser shall meet the same
qualifications set forth herein. Landlord and the Tenant shall each pay the costs and expenses for
their respective appraisers, and, if a third appraiser is necessary, Landlord and Tenant shall
share equally the expense of the third appraiser. Landlord and Tenant each agree to cooperate with
the appraisers and provide the appraisers with such information as the appraisers may request.



               (a) “Variable Index” shall mean the CPI for the month which is two months prior to the
current Adjustment Date. By way of example, for the first Adjustment Date the Variable Index will
be the CPI for the month which is two months prior to the first Adjustment Date, and for the second
Adjustment Date the Variable Index will be the CPI for the month which is two months prior to the
second Adjustment Date, for the third Adjustment Date the Variable Index will be the CPI for the
month which is two months prior to the third Adjustment Date, etc.



5









 





     3.3 Additional Rent; Rent Defined. If Landlord shall make any expenditure for which
Tenant is responsible or liable under this Lease, or if Tenant shall become obligated to Landlord
under this Lease for any sum other than Base Rent or as hereinabove provided, the amount thereof
shall be deemed to constitute additional rent (“Additional Rent”) and shall be due and
payable by Tenant to Landlord, together with all applicable sales taxes thereon, if any,
simultaneously with the next succeeding monthly installment of Base Rent or at such other time as
may be expressly provided in this Lease for the payment of the same.



     For the purpose of this Lease, the term “Rent” shall mean and be defined as all Base
Rent and Additional Rent due from Tenant to Landlord hereunder.



     3.4 Payment of Rent. Each of the foregoing amounts of Rent and other sums shall be
paid to Landlord without demand and without deduction, set-off, claim or counterclaim of any nature
whatsoever which Tenant may have or allege to have against Landlord, and all such payments shall,
upon receipt by Landlord, be and remain the sole and absolute property of Landlord. All such Rent
and other sums shall be paid to Landlord in legal tender of the United States at the address to
which notices to Landlord are to be given or to such other party or to such other address as
Landlord may designate from time to time by written notice to Tenant. If Landlord shall at any
time accept any such Rent or other sums after the same shall become due and payable, such
acceptance shall not excuse a delay upon subsequent occasions, or constitute or be construed as a
waiver of any of Landlord’s rights hereunder. At the request of Landlord, Tenant shall pay Base
Rent and any Additional Rent hereunder by electronic funds transfer or by wire, provided Landlord
provides to Tenant appropriate wire instructions or electronic transfer instructions.



     3.5 Past Due Rent. If Tenant fails to make any payment of Rent or any other sums or
amounts to be paid by Tenant within five (5) days of the date such payment is due and payable,
Tenant shall pay to
Landlord an administrative late charge of two and one-half percent (2.5%) of the amount of
such payment. In addition, any past due payment of Rent shall bear interest from the date such
payment became due to the date of payment thereof by Tenant at a rate which is equal to the lesser
of (i) twelve percent (12%) per annum, or (ii) the maximum interest rate then allowable under the
laws of the State in which the Premises are located. Such late charge and interest shall
constitute Additional Rent and shall be due and payable with the next installment of Rent due
hereunder.



     3.6 No Diminution or Abatement of Rent. No abatement, diminution or reduction (i) of
Rent, charges or other compensation, or (ii) of Tenant’s other obligations hereunder shall be
allowed to Tenant or any person claiming under Tenant, under any circumstances or for any reason
whatsoever, except as expressly provided otherwise herein.



ARTICLE IV.

USE AND OPERATION OF PREMISES




     4.1 Permitted Use. Tenant covenants that it shall, throughout the Term of this
Lease, use and occupy the Premises only for lawful purposes which do not conflict with covenants,
restrictions or other matters of record affecting title to the Premises; notwithstanding the
foregoing provision, however, the following uses shall be prohibited on the Premises:



6









 





               (a) Any obnoxious odor, noise or sound which can be heard or smelled outside of the Building,
provided that any usual paging system shall be allowed and further provided that typical restaurant
odors shall not be deemed prohibited hereby if such restaurant facilities have been properly
constructed and maintained so as not to pollute.



               (b) Any operation primarily used as a warehouse operation and any assembling, manufacturing,
distilling, refining, smelting, agricultural or mining operation.



               (c) Any mobile home, trailer court, labor camp, junk yard or stock yard (except that this
provision shall not prohibit the temporary use of construction trailers during periods of
construction, reconstruction or maintenance).



               (d) Any dumping, disposing, incineration or reduction of garbage (exclusive of garbage
compactors located in the rear of any Building).



               (e) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house
operation.



               (f) A facility whose primary business is auto or truck repair.



               (g) Any establishment which has as its principal business the selling or exhibiting of
pornographic materials, including, without limitation any adult book or film store and any adult
entertainment nightclub.



               (h) Any so called “head shop” engaged primarily in the sale of rolling paper and other drug
paraphernalia.



     4.2 Reserved.



     4.3 Compliance With Laws. Tenant shall at all times keep and maintain the Premises in
compliance with all applicable laws, ordinances, statutes, rules, regulations, orders, directions
and requirements of all federal, state, county and municipal governments and of all other
governmental agencies or authorities having or claiming jurisdiction over the Premises or the
business activities conducted thereon or therein and of all of their respective departments,
bureaus, agencies or officers, and of any insurance underwriting board or insurance inspection
bureau having or claiming such jurisdiction or any other body exercising similar functions and of
all insurance companies from time to time selected by Tenant to write policies of insurance
covering the Premises and any business or business activity conducted thereon or therein. However,
notwithstanding the foregoing, should there be a de minimis issue of non-compliance with applicable
law which does not have a material adverse effect on the Premises, Tenant shall not be obligated to
correct such de minimis violation but Tenant shall have the indemnity obligations set forth in
Section 18.2 with respect to any such de minimis violation, including indemnity against any fines
or penalties imposed against the Premises as a result of such de minimis violations, if any.



     Notwithstanding the generality of the foregoing, but subject to the proviso set forth in the
last sentence of the preceding paragraph, Tenant shall, at its sole expense, maintain the Premises
in full compliance with all applicable federal, state or municipal laws, ordinances, rules and



7









 







regulations currently in existence or hereafter enacted or rendered governing accessibility for the
disabled or handicapped, including, but not limited to, any applicable provisions of The
Architectural Barriers Act of 1968, The Rehabilitation Act of 1973, The Americans With Disabilities
Act, the accessibility code(s), if any, of the State in which the Premises is located, and all
regulations and guidelines promulgated under any all of the foregoing, as the same may be amended
from time to time (collectively the “Accessibility Laws”).



     4.4 Compliance With Restrictions, Etc. Tenant, at its expense, shall comply with all
restrictive covenants or other title exceptions affecting the Premises and comply with and perform
all of the obligations set forth therein to the extent that the same are applicable to the Premises
or to the extent that the same, if not complied with or performed, would impair or prevent the
continued use, occupancy and operation of the Premises. Further, in addition to Tenant’s payment
obligations under this Lease, Tenant shall pay (i) all sums charged, levied or assessed under any
restrictive covenants, declaration, reciprocal easement agreement or other title exceptions
affecting the Premises promptly as the same become due and shall furnish Landlord evidence of
payment thereof, and (ii) any fees, charges, fines, costs, assessments, taxes, demands, orders,
directives, or other requirements by any governmental agency asserting jurisdiction, or under any
Environmental
Laws which arise from or relate to Tenant’s use of, or Tenant’s activities at, the Premises,
including, but not limited to, Storage Tank System registration fees, any applicable fees, and any
consultant or attorneys’ fees related to or arising under any Environmental Laws.



     4.5 Hazardous Materials and Sewage.



               (a) Definitions. The following terms shall have the following meanings:



                    (i) “De Minimis Release” shall mean a Release which is (i) not reportable under any
governmental authority under any applicable Environmental Laws, or (ii) not above action levels
established by .



                    (ii) “Environmental Laws or Environmental Requirements”, as used herein, shall mean
all applicable federal, state, and local government laws (including common law), rules,
regulations, statutes, codes, ordinances, directives, guidance documents, cleanup or other
standards, and any other governmental requirements or standards which pertain to, regulate, or
impose liability or standards of conduct concerning the use, storage, human exposure to, handling,
transportation, release, cleanup or disposal of Hazardous Materials.



                    (iii) “Hazardous Materials” shall mean and be defined as any and all toxic or
hazardous substances, chemicals, materials or pollutants, of any kind or nature, which are
regulated, governed, restricted or prohibited by any federal, state or local law, decision,
statute, rule, or ordinance currently in existence or hereafter enacted or rendered, and shall
include (without limitation), all oil, gasoline and petroleum based substances.



                    (iv) “Material Release” shall mean any Release other than a De Minimis Release.



                    (v) “Pre-Existing Environmental Condition” means presence of: (i) Hazardous Materials
in soil, groundwater or surface water on or about the Premises which first



8









 







existed or
first occurred prior to the Effective Date; or (ii) any other environmental condition which first
existed
or first occurred prior to the Effective Date.



                    (vi) “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the environment any
Hazardous Materials on, over, under, from or affecting the Premises or the air, soil, water
vegetation, buildings, personal property, persons or animals thereon, whether occurring before or
during the Term of this Lease.



                    (vii) “Storage Tank System” means a complex of one or more underground or aboveground
storage tanks and their associated underground, above ground, and/or connected piping and related
fuel dispensing, pumping, mechanical, control and detectional equipment, as more particularly
located on the Land.



               (b) Environmental Compliance. Tenant shall comply with all laws, including
Environmental Laws, relating to the use, storage, transportation, dispensing, sale or Release of
Hazardous Materials at the Premises, except for any noncompliance of a de minimis nature or for
which the result of noncompliance would not have a material adverse effect on the Premises.
Without limiting the foregoing, Tenant shall comply with all laws, including Environmental
Laws, relating to Storage Tank Systems, their construction, operation, maintenance, calibration and
alarm systems, and promptly shall implement any and all upgrade requirements promulgated by any
government agency having jurisdiction at the earliest possible time, but in no event, no later than
any applicable deadline announced or promulgated by the government agency. Tenant shall not
intentionally Release, and shall use commercially reasonable efforts to prevent any employee,
contractor, agent, sublessee, invitee or licensee from Releasing, any Hazardous Materials on the
Premises, into the air or the surrounding land, surface water or ground water; provided, however, a
De Minimis Release on the Premises shall not be a violation of or a default of Tenant under the
Lease (but Tenant shall have the remediation and indemnity obligations set forth in Section 4.5(c)
and 4.5(d) below). Tenant shall provide Landlord with copies of all reports, studies, complaints,
claims, directives, citations, demands, inquiries, notices of violation, or orders relating to
Hazardous Materials at or emanating from or to the Premises, at any time, or any alleged
non-compliance with Environmental Laws at the Premises, reasonably promptly (and in no event later
than fifteen (15) days) after such documents are provided to or generated by Tenant. Tenant also
shall notify Landlord of any Material Release of Hazardous Materials at, on, under or from the
Premises promptly upon notification of Tenant thereof, and promptly shall abate and remove any such
Releases as required in this Article. A Material Release in and of itself shall not be a violation
of or a default under this Lease, unless such Material Release shall result from the intentional
acts of Tenant or from Tenant’s failure to use commercially reasonable efforts to prevent any
employee, contractor, agent, lessee, invitee or licensee from Releasing, any Hazardous Materials on
the Premises, into the air or the surrounding land, surface water or ground water; provided,
however, Tenant’s failure to respond or take action after a Material Release as otherwise required
in this Lease shall be a default hereunder. Any fuel spills immediately shall be removed and
cleaned up using absorbent or other appropriate materials. Water shall not be used to clean
gasoline or diesel from the surfaces of the Premises, other than for routine power washing and any
water used by the fire department in response to a fire. All reporting, investigation and/or
remediation requirements



9









 







under any Environmental Law with respect to any and all Releases of
Hazardous Materials at, on, from or near the Premises are the responsibility of Tenant.



               (c) Tenant’s Responsibility for Hazardous Materials. Hazardous Materials at the
Premises shall be the responsibility of Tenant and Tenant shall be liable for and responsible for
such Hazardous Materials, including without limitation, at Tenant’s sole cost (i) any Pre-Existing
Environmental Condition (provided, however, that Tenant represents that based on the environmental
information in Tenant’s files, there are no known Pre-Existing Environmental Conditions on the date
of this Lease, and based on such information, the possibility of such a Pre-Existing Environmental
Condition is remote); (ii) permitting, reporting, assessment, testing, investigation, treatment,
removal, remediation, transportation and disposal of such Hazardous Materials as directed by any
governmental agency, as required by Environmental Laws; (iii) damages, costs, expenditures and
claims for injury to persons, property, the Premises and surrounding air, land, surface water, and
ground water resulting from such Hazardous Materials; (iv) claims by any governmental agency or
third party associated with injury to surrounding air, land, surface water and ground water or
other damage resulting from such Hazardous Materials; (v) damages for injury to the buildings,
fixtures, appurtenances, equipment and other personal property of Landlord to the extent caused by
such Hazardous Materials; (vi) fines, costs, fees, assessments, taxes, demands, orders, directives
or any other requirements imposed in any
manner by any governmental agency asserting jurisdiction, or under any Environmental Laws with
respect to such Hazardous Materials; (vii) damages, costs and expenditures for injury to natural
resources to the extent caused by such Hazardous Materials as directed by any governmental agency
or otherwise as required by applicable law, including Environmental Laws; (viii) compliance with
Environmental Laws regarding the use, storage, transportation, release, disposal, dispensing or
sale of Hazardous Materials; and (ix) any other liability or obligation related to such Hazardous
Materials. Except as otherwise provided in Section 4.6(f) below, Landlord is not required to incur
any costs, fees (including attorney, consultant and expert witness fees) or expenses for
environmental compliance, testing, investigation, assessment, remediation or cleanup relating to
Hazardous Materials, should Landlord incur any such reasonable costs, expenses or fees relating to
Hazardous Materials at the Premises or surrounding lands or surface water or ground water, Tenant
shall promptly reimburse Landlord for said costs, expenses or fees (except to the extent such
costs, fees or expenses arise from other property owned by Landlord, if any).



               (d) Tenant’s Environmental Indemnification. Tenant shall indemnify, defend, and hold
Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value of the Premises, damages
for the loss or restriction on use of rentable or usable space or of any amenity of the Premises,
damages arising from any adverse impact on marketing of space of the Premises, and sums paid in
settlement of claims, attorneys’ fees, consultation fees, and expert fees) which arise before, or
during the term of the Lease as a result of Hazardous Materials (provided, however, that Tenant
represents that based on the environmental information in Tenant’s files, there are no known
Pre-Existing Environmental Conditions on the date of this Lease, and based on such information, the
possibility of such a Pre-Existing Environmental Condition is remote). This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection with any
investigation or site conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state, or local governmental agency or political subdivision because of



10









 







Hazardous
Materials present in the soil or ground water on or under the Premises. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Premises results in any contamination
of the Premises, Tenant shall promptly take all actions at its sole expense as are recommended by
environmental consultants hired by Tenant and are necessary to return the Premises to the
condition required by the appropriate governmental authority; provided that Landlord’s approval of
such actions shall first be obtained, which approval shall not be unreasonably withheld so long as
such actions would not potentially have any material adverse long-term or short-term effect on the
Premises. Should Tenant obtain a “no further action” closure letter or similar evidence of the
completion of remediation from (an “NFA Letter”) Tenant shall have no obligation to
further remediate the Premises, but Tenant shall continue to indemnify, defend and hold harmless
Landlord for any claims, judgments, damages, penalties, fines, costs, liabilities, or losses as
more particularly set forth in the beginning of this paragraph. Notwithstanding the foregoing, as
more particularly provided for in Section 4.6(b), upon the end of the Lease Term, should Tenant
obtain an NFA Letter, Tenant’s indemnity obligations under this subsection shall be modified as
more particularly set forth in Section 4.6(b).



               (e) Tenant’s Notification Obligation. Tenant promptly shall notify Landlord of any of
the following: (i) any correspondence or communication from any governmental
entity regarding the application of Environmental Laws to the Premises or Tenant’s operation
of the Premises, if such communication would enlarge or materially change or has the potential to
materially change Tenant’s or Landlord’s obligations or liabilities under the Environmental Laws;
(ii) any correspondence, communication or notifications as are required by either the Federal or
State Emergency Planning and Community Right to Know Acts if such communication would enlarge or
materially change or has the potential to materially change Tenant’s or Landlord’s obligations or
liabilities under the Environmental Laws; (iii) any material change in Tenant’s operations on the
Premises that will enlarge or materially change or has the potential to materially change Tenant’s
obligations or liabilities under the Environmental Laws; (iv) any Material Release or suspected
Material Releases of any and all Hazardous Materials at, from or near the Premises. In addition,
within thirty (30) days of Landlord’s written request, Tenant shall provide to Landlord a copy of
Tenant’s “Leaseback Environmental Status Report” or a similar report if such report is no
longer created by Tenant, which describes all testing and test results of the Premises during the
prior year. Such request of shall not be made by Landlord more than twice in any calendar year.



               (f) Landlord’s Right of Entry. If there has been a Material Release, at Landlord’s
sole expense and sole discretion, Landlord may enter upon the Premises (without interfering with
Tenant’s business and operations on the Premises) and make any inspection, tests, borings,
measurements, investigation or assessment Landlord deems necessary in the exercise of its
reasonable judgment in order to determine the presence of Hazardous Materials. Provided, however,
that Landlord shall not conduct any soil borings or other invasive testing procedures unless there
has been a Material Release or Landlord has a reasonable basis to suspect there has been a Material
Release on the Premises. Landlord shall select a qualified environmental consultant to complete
such tasks and shall not conduct any such inspections or other activities described herein without
consulting and coordinating such efforts with the Tenant’s environmental team. Nothing herein
shall be deemed to require Landlord to conduct any such testing, measurement, investigation or
assessment. Landlord shall give Tenant a



11









 







minimum of five (5) days written notice prior to
conducting any such inspection, tests, borings, measurements, investigation or assessment, so that
Tenant may have the opportunity to be present and to receive split test samples and/or to observe
such testing. Landlord agrees to consult with and coordinate such actions with Tenant’s
environmental team. In conducting any such inspections, and testing, Landlord shall not unduly
interrupt or interfere with the conduct of Tenant’s business. Notwithstanding any other provisions
of this Lease to the contrary, Landlord shall be solely responsible for any costs, claims, damages,
expenses or liabilities that arise as a result of Landlord’s inspections and testing to the extent
attributable to the negligence or misconduct of Landlord or Landlord’s agents. Provided, however,
no notice from Landlord to Tenant shall be required under urgent or emergency conditions. Tenant
shall be provided with a copy of each report setting forth the results of any test performed by
Landlord promptly upon receipt. Landlord’s right of entry and inspection shall include the right
to inspect Tenant’s records required to be maintained pursuant to Environmental Laws.



               (g) Tenant’s Environmental Records. Landlord shall have the right to require Tenant
to provide to Landlord access to Tenant’s file with respect to environmental matters affecting the
Premises upon two (2) business days prior written notice. Upon such request, not to be made more
than once in any calendar year, Tenant shall provide a copy of all new
correspondence, reports and other written material in Tenant’s environmental file for the
Premises.



               (h) Tenant’s Right to Remove the Storage Tank System during the Term.


Tenant shall have the right, at its sole discretion, during the first fifteen (15) Lease Years to
remove all or part of the Storage Tank System, and upon such removal Tenant shall not be obligated
to replace such Storage Tank System but shall be obligated to restore the surface where the Storage
Tank System was removed to grade (including restoration of the asphalt or other Improvements
damaged by such removal, if any) consistent with the condition of the surface and Improvements
prior to such removal. After the first fifteen (15) Lease Years, and only if Tenant has exercised
the next five-year option, Tenant shall have the right, at its sole discretion, to remove all or
part of the Storage Tank System, and upon such removal Tenant shall not be obligated to replace
such Storage Tank System but shall be obligated to restore the surface where the Storage Tank
System was removed to grade (including restoration of the asphalt or other Improvements damaged by
such removal, if any) consistent with the condition of the surface and Improvements prior to such
removal. Notwithstanding anything herein to the contrary, if there is a Material Release after the
fifteenth (15th) Lease Year which results from a material failure in the Storage Tank
System, then Tenant shall have the right to remove the Storage Tank System in order to remediate
the Premises in compliance with the appropriate governmental authorities, and in such case, Tenant
shall not have the obligation to replace the Storage Tank System (regardless of whether Tenant has
exercised the next five-year option) but shall be obligated to restore the surface where the
Storage Tank System was removed to grade (including restoration of the asphalt or other
Improvements damaged by such removal, if any) consistent with the condition of the surface and
Improvements prior to such removal. Any removal and replacement of the Storage Tank System shall
be performed in accordance with all laws as required by Section 4.3, including all Environmental
Laws as required by this Section 4.5. If there are any Hazardous Materials on, at or under the
Premises at the time of such removal and replacement, then Tenant shall remediate such Hazardous
Materials as otherwise required by this Section 4.5.




12









 








     4.6 Resolution of Environmental Matters at Expiration or Termination of Tenancy.



               (a) Tenancy Close-Out Environmental Assessment and Report. Not later than (i) thirty
(30) days prior to the expiration of the Lease or (ii) ninety days after an earlier termination of
the tenancy, whichever may apply, Tenant shall submit to the Landlord (i) a copy of all of Tenant’s
records relating to obligations under this Article IV, and (ii) a report of any environmental
assessment pursuant to ASTM and/or prevailing industry standards, conducted by a qualified, and
adequately insured consultant firm, to (1) identify and assess the presence of Hazardous Materials
on, in, at, and, where information indicates migration of Hazardous Materials off site and it is
practical to do so, off site of the Premises; (2) all records relating to the determination of the
integrity and tightness of all Storage Tank Systems on the Premises; and (3) determine any needed
remedial actions needed or pending regulatory obligations performance or resolution of which is
required to comply with Environmental Laws or restore the Premises as set forth in this Section
4.6. Tenant shall secure on behalf of Landlord the ability of the Landlord to rely upon the report
and be named as an additional insured under the consultant’s insurance policies. Tenant shall
update and supplement such report as needed through the date of the end of the tenancy to reflect
any change in conditions or new
information pertaining to the methodology or findings of the report. Tenant shall not be in
default under this Lease for failure to complete the matters in this paragraph if Tenant is
actively and diligently pursuing such matters.



               (b) Remedial and Corrective Actions; Closure of Storage Tank Systems: Not later than
(i) the expiration of the Lease, (ii) six (6) months after the earlier termination of the Lease,
(iii) or such longer time as is approved in writing by Governmental Authorities, if any is
required, or as may be necessary to complete such corrective action in compliance with Governmental
Authorities, and in any event, as consented to by Landlord, which consent shall not be unreasonably
withheld, Tenant shall provide Landlord with written evidence and assurances that, as of the date
of the end of the tenancy, or as soon as reasonably practicable thereafter, the Premises and any
Storage Tank Systems left at the Premises comply (or will comply if any remediation is required)
with all Environmental Laws and, where applicable, any required regulatory closures or NFA Letter
have been obtained. Upon delivery of the evidence required hereunder, Tenant shall no longer have
any indemnity obligations under this Lease with respect to any new suit or claim brought against
Landlord or the Premises after the end of the Term regarding any Release that occurred on the
Premises during the Term.



     4.7 Right to Contest. Tenant may, at its sole cost and expense, contest, or cause to
be contested, by appropriate legal proceedings conducted in good faith and with due diligence, the
application of laws, ordinances, statutes or regulations to the Premises, including the application
of Environmental Laws or Environmental Requirements to the Premises, provided Tenant indemnifies
and holds Landlord harmless from any expenses (including reasonable attorney’s fees) or liability
arising out of such contest, and posts any bond or security required by law in connection with such
contest.



     4.8 Sewage. Tenant shall not discharge or permit to be discharged from the Premises
any sewage other than that which is normal waste water for the business conducted by Tenant on, in
or from the Premises. Any sewage which is produced or generated in connection with the use



13









 







or
operation of the Premises shall be handled and disposed of by Tenant as required by and in
compliance with all applicable local, state and federal laws, ordinances and rules or regulations.



     4.9 Survival. The provisions of this Article IV shall survive expiration or
termination of the tenancy but nothing herein shall obligate Tenant for any environmental
conditions first existing on the Premises after the date of expiration or termination of Tenant’s
tenancy hereunder.



ARTICLE V.

TAXES AND ASSESSMENTS




     5.1 Real Estate Taxes and Assessments. From and after the Effective Date and
continuing throughout the Term of this Lease Tenant’s obligations with respect to Real Estate Taxes
(as hereinafter defined) shall be as follows:



               (a) As used herein, “Real Estate Taxes” shall mean all taxes, assessments and other
governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as
ordinary, and each and every installment thereof which during the Term hereof or prior to the Term
of the Lease shall be or have been charged, laid, levied, assessed, or imposed upon, or arise in
connection with, the use, occupancy or possession of the Premises or any part thereof, including,
without limitation, ad valorem real and personal property taxes, and all taxes charged, laid,
levied, assessed or imposed in lieu of or in addition to any of the foregoing by virtue of all
present or future laws, ordinances, requirements, orders, directions, rules or regulations of
federal, state, county and municipal governments and of all other governmental authorities
whatsoever.



               (b) Tenant shall pay directly to the taxing authorities all Real Estate Taxes on or before the
date such Real Estate Taxes are due and payable. Landlord, with Tenant’s cooperation, shall cause
the taxing authorities to deliver all bills for Real Estate Taxes directly to Tenant or should any
taxing authority refuse to deliver a tax bill directly to Tenant, Landlord shall deliver said tax
bill to Tenant no later than twenty (20) days after receipt from the taxing authority. Upon
written request from Landlord, Tenant shall deliver to Landlord evidence of the payment of the Real
Estate Taxes for the calendar year no later than twenty (20) days after the date Tenant has paid
the Real Estate Taxes.



               (c) Reserved.



               (d) Landlord agrees that Tenant has the first right to manage and conduct all negotiations of
the Real Estate Taxes and shall also have the right to contest the validity or the amount of any
Real Estate Taxes by such appellate or other proceedings as may be appropriate in the jurisdiction,
and may, if applicable, defer payment of such obligations if payment would operate as a bar to such
contest, and, if applicable, pay same under protest, or take such other steps as Tenant may deem
appropriate, provided, however, that Tenant indemnifies Landlord from any expense (including
reasonable attorney’s fees) or liability arising out of such contest, pursues such contest in good
faith and with due diligence, posts any bond or security required by law in connection with such
contest, gives Landlord written notice of its intention to contest, and takes no action which shall
cause or allow the institution of any foreclosure proceedings or



14









 







similar action against the
Premises. Landlord shall, at Tenant’s expense, cooperate in the institution and prosecution of any
such proceedings initiated by Tenant, if so requested by Tenant, and shall execute any documents
which Landlord may reasonably be required to execute and shall make any appearances which Landlord
may reasonably be required to make in connection with such proceedings. Further provided, that if
Landlord receives any letters or communications from any taxing entity regarding the purchase price
of the Premises paid by Landlord, or any other purchaser, or any request or information regarding
the appraisal of the Premises, Landlord shall promptly forward such communications to Tenant for
Tenant to respond. Landlord agrees not to respond directly to such requests, but rather to forward
all such requests to Tenant.



               (e) If Tenant elects not to institute proceedings to contest the validity or the amount of any
Real Estate Taxes, Landlord may do so, after giving Tenant fifteen (15) days prior written notice,
and Tenant shall cooperate and shall make any appearances which Tenant may reasonably be required
to make in such proceedings but shall not be obligated to incur any
expense in connection therewith; provided, however, that Landlord pursues such contest in good
faith and with due diligence and Landlord shall take no action which shall cause or allow the
institution of any foreclosure proceedings or similar action against the Premises which might
result in the termination of this Lease.



               (f) Should any of the proceedings referred to in the preceding two paragraphs (d) and (e) of
this Section 5.1 result in reducing the total annual Real Estate Taxes, Tenant shall be entitled to
receive all refunds by the taxing authorities attributable to the Premises for any period for which
Tenant has paid Real Estate Taxes after deducting therefrom payment of all of the reasonable
expenses incurred by Landlord and Tenant, if any, incurred in any such proceeding in which a refund
is paid. If no refund shall be secured in any such proceeding, the party instituting the
proceeding shall bear the entire cost, or if Landlord institutes the proceeding at Tenant’s
request, Tenant shall bear the entire cost.



               (g) Except for Real Estate Taxes, nothing in this Article 5 shall require Tenant to pay or
reimburse Landlord for the payment of (i) any income, profit, inheritance, estate, succession,
gift, franchise or transfer taxes which are or may be imposed upon Landlord, its successors or
assigns, by whatever authority imposed or however designated, (ii) any tax imposed upon the sale of
all or a part of the Premises by Landlord, or (iii) any tax, assessment, charge or levy imposed or
levied upon or assessed against any property of Landlord other than the Premises or any income to,
or business activity of, Landlord not in connection with the Premises. Nothing herein shall
require Tenant to pay or reimburse Landlord for the payment of any tax if Tenant’s payment of such
tax or reimbursement of Landlord for the payment of such tax would violate any applicable law.



               (h) Tenant shall pay and discharge, when due, all taxes assessed during the Term of this Lease
against any leasehold interest or personal property of any kind owned by or placed in the Premises
by Tenant. In addition to the Rent and any other sums or amounts required to be paid by Tenant to
Landlord pursuant to the provisions of this Lease, Tenant shall also pay to Landlord,
simultaneously with such payment of such Rent or other sums or amounts, the amount of any
applicable sales, use or excise tax on any such Rent or other sums or amounts so paid by Tenant to
Landlord, whether the same be levied, imposed or assessed by the State in



15









 







which the Premises is
located or any other federal, state, county or municipal governmental entity or agency. Any such
sales, use or excise taxes shall be paid by Tenant to Landlord at the same time that each of the
amounts with respect to which such taxes are payable are paid by Tenant to Landlord.



ARTICLE VI.

UTILITIES




     From and after the Effective Date Tenant shall be liable for and shall pay directly all
charges, rents and fees (together with any applicable taxes or assessments thereon) when due for
water, gas, electricity, air conditioning, heat, septic, sewer, refuse collection, telephone and
any other utility charges or similar items in connection with the use or occupancy of the Premises
during the Term of this Lease. From and after the Effective Date Landlord shall not be responsible
or liable in any way whatsoever for the impairment, interruption, stoppage, or other interference
with any utility services to the Premises not caused by Landlord, its agents,
employees, contractors or licensees. In any event no interruption, termination or cessation
of utility services to the Premises shall relieve Tenant of its duties and obligations pursuant to
this Lease, including, without limitation, its obligation to pay all Rent as and when the same
shall be due hereunder.



ARTICLE VII. — RESERVED




ARTICLE VIII.

INSURANCE




     8.1 Insurance by Tenant. From and after the Effective Date and continuing throughout
the Term of this Lease, Tenant shall, at its sole cost and expense, maintain in full force and
effect the following types and amounts of insurance coverage:



               (a) Special form insurance on the Improvements, including all permitted alterations, changes,
additions and replacements thereof and thereto, including without limitation, insurance against
loss or damage caused by: (i) fire, windstorm and other hazards and perils generally included under
extended coverage; (ii) sprinkler leakage; (iii) vandalism and malicious mischief; and (iv) boiler
and machinery, all in an amount which reasonably assures there will be sufficient proceeds to
replace the Improvements in the event of a loss against which such insurance is issued. Such
insurance shall (i) contain an agreed amount endorsement or equivalent clause within the policy
with respect to the Improvements, (ii) provide for no deductible in excess of * AND NO/100 DOLLARS
($*), and (vi) contain endorsements insuring against liability for “demolition costs” and
“increased cost of construction”, as well as “ordinance or law” coverage and an “enforcement”
endorsement if any of the Improvements or the use of the Premises shall at any time constitute
legally non-conforming structures or uses. All insurance required hereunder, and all other
insurance maintained by Tenant on the Improvements in excess of or in addition to that required
hereunder, shall be carried in favor of Landlord and Tenant, as their respective interests may
appear.




16










 






          (b) Commercial general liability and property damage insurance providing coverage against
liability for personal and bodily injury, death and property damage having limits of not less than
*AND NO/100 DOLLARS ($*) (evidenced as $* excess of a $* self-insured retention) per occurrence
with a general aggregate of not less than * AND NO/100 DOLLARS ($*), and with an umbrella liability
policy in the amount of * AND NO/100 DOLLARS ($*). Such insurance shall cover at least the
following hazards: (i) premises and operations; (ii) products and completed operations; (iii)
independent contractors; (iv) blanket contractual liability for all written and oral contracts; and
(v) contractual liability covering the indemnities contained in Article XVIII hereof to the extent
the same is available. Such insurance, and any and all other liability insurance maintained by
Tenant in excess of or in addition to that required hereunder, shall name Landlord as an additional
insured with a waiver of subrogation in favor of Landlord.




          (c) Workers’ compensation insurance or employee liability insurance, in the minimum amounts
required by the state in which the Premises is located, if any.




          (d) Builders’ risk insurance in accordance with the requirements of this Article, but only
prior to the commencement of and during the construction of any permitted rehabilitation,
replacement, reconstruction, restoration, renovation or alteration to the Premises.




          (e) Flood hazard insurance if any portion of the Improvements is currently or at any time in
the future located in a federally designated “special flood hazard area” and in which flood
insurance has been made available under the National Flood Insurance Act of 1968 (and any successor
thereto) in an amount which reasonably assures that there will be sufficient proceeds to replace
the Improvements in the event of a loss against which such insurance is issued.




          (f) Environmental Insurance covering the Premises and the Underground Storage Tank System (i)
in an amount of at least $* per occurrence, and $* in the aggregate, or in such greater amount as
may be required by law, providing coverage for remediation of any Hazardous Materials contamination
at the Premises, and (ii) in the amount of at least $* per occurrence providing coverage for
compensation of any related personal injuries and third party liability. If the Premises is
located in the State of Oklahoma, Tenant shall carry Environmental Insurance covering the Premises
and the Storage Tank System in an amount of at least $* per occurrence, covering third party
liability and personal injuries, but such coverage shall not cover the remediation of any Hazardous
Material on, in or under the Premises, except as otherwise required now or in the future under the
laws of the State of Oklahoma.




          (g) If Tenant’s use of the Premises involves selling or distributing alcoholic beverages for
off premises consumption, Tenant shall provide, keep and maintain in full force and effect liquor
liability insurance in the amount of not less than * AND NO/100 DOLLARS ($*) (evidenced as $*
excess of a $* self insured retention), with umbrella policy of at least $*.




          (h) In addition, Tenant shall, at Landlord’s reasonable request, provide, keep and maintain in
full force and effect such other insurance for such risks and in such amounts as may from time to
time be commonly insured against in the case of business operations in the




17









 







same county where the
Premises are located, similar to those contemplated by this Lease to be conducted by Tenant on the
Premises.




     8.2 Carriers and Features. Tenant has provided to Landlord copies of insurance
certificates evidencing all insurance required by this section simultaneously with execution of
this Lease, and Landlord has approved the same. All insurance policies required to be carried by
Tenant as provided in this Article shall be issued by insurance companies approved by Landlord
authorized to do business in the State in which the Premises is located. The insurance companies
must have: (i) an investment grade rating for claims paying ability assigned by a credit rating
agency approved by Landlord and (ii) a general policy rating of A minus or better and a financial
class of VII or better by A.M. Best Company, Inc. (with the exception of the environmental
insurance policy described above) All such policies shall be for periods of not less than one year
and Tenant shall
renew the same at least thirty (30) days prior to the expiration thereof. All such policies
shall name Landlord as additional insured and any wholly or principally owned subsidiaries of
Landlord that may now or hereafter exist, as well as any mortgagee or collateral assignee of
Landlord, and shall require not less than thirty (30) days written notice to Landlord prior to any
cancellation thereof or any change reducing coverage thereunder. Landlord shall not be liable for
any insurance premiums thereon or subject to any assessments thereunder.



     Tenant shall pay the premiums for all insurance policies which Tenant is obligated to carry
under this Article VIII and, at least fifteen (15) days after to the date any such insurance must
be in effect, and at least five (5) days before the expiration date of the prior policy, deliver to
Landlord a copy of the policy or policies, or a certificate or certificates thereof (on ACORD 27
forms or equivalent), along with evidence that the premiums therefor have been paid for at least
the next ensuing quarter-annual period.



     8.3 Failure to Procure Insurance. In the event Tenant shall fail to procure insurance
required under this Article and fail to maintain the same in full force and effect continuously
during the Term of this Lease, Landlord shall be entitled to immediately procure the same and
Tenant shall promptly reimburse Landlord for such premium expense as Additional Rent.



     8.4 Self-Insurance.(a) Notwithstanding anything else contained herein, should Tenant
have a net worth of $* (excluding goodwill) during any part of the Term of this Lease, Tenant may
self-insure for some or all insurance obligations contained hereunder for so long as Tenant
maintains said net worth requirement, except to the extent insurance is required by the State where
the Premises is located and such State does not allow such liability to be self-insured. If Tenant
desires to self-insure pursuant to this Section 8.4(a), Tenant shall deliver to Landlord at least
thirty (30) days prior to self-insuring a notice that it intends to self-insure hereunder, together
with financial statements evidencing that Tenant has met the net worth requirement set forth above.
If at any time during the Term, Tenant is self-insuring pursuing to this Section 8.4(a) and
Tenant’s net worth falls below the minimum net worth requirement set forth above, then Tenant shall
no longer be entitled to self-insure under this Subsection, and Tenant shall procure all insurance
otherwise required by this Article VIII. If Tenant is self-insuring under this Subsection, rather
than delivering the insurance certificate called for in at the times set forth in Section 8.2
above, Tenant shall deliver a certificate of self-insurance to Landlord.



18









 





          (b) Tenant may increase its self-insured retention on the liability insurance to be carried by
Tenant under Section 8.1(b) above to amounts reasonably agreed to by Tenant and Landlord, provided,
however, in no event shall the self-insured retention be increased to an amount greater than $*.




ARTICLE IX.

ADDITIONS, ALTERATIONS AND REMOVALS




     9.1 Prohibition. Except as hereinafter expressly provided in Section 9.2, no portion of the Premises shall be
demolished, removed, modified or altered by Tenant in any manner whatsoever.



     9.2 Permitted Renovations. Tenant shall be entitled and obligated to undertake all
alterations to the Premises required by any applicable law or ordinance including, without
limitation, any alterations required by any Accessibility Laws. Tenant shall be entitled to make
Minor Alterations, as defined herein, to the Premises without Landlord’s prior consent, and without
prior notice to Landlord. As used herein, “Minor Alterations” shall mean an alteration to
the Premises the cost of which does not exceed $* and which do not decrease the value or the square
footage of the Improvements. Except for Minor Alternations, Tenant shall not be entitled to make
any alterations or renovations to the Premises without Landlord’s consent, which shall not be
unreasonably withheld. It shall be reasonable for Landlord to withhold its consent to any
alteration, modification or renovation if such alteration, modification or renovation decreases the
value of the Improvements or the Premises, or decreases the square footage of the Improvements. In
performing any alterations or renovations to the Premises, including Minor Alterations, Tenant
shall meet and comply with all of the following conditions:



          (a) Before the commencement of any such alterations, Tenant shall furnish to Landlord plans
and specifications therefor or a detailed itemization thereof; provided, however, for
non-structural Minor Alterations Tenant shall have no obligation to deliver plans and
specifications or an itemization of the work to Landlord before commencement of such work.




          (b) Before the commencement of any such alterations, Tenant shall obtain the approval (if any
is required) thereof by all governmental departments or authorities having or claiming jurisdiction
of or over the Premises, as more particularly required by Section 4.3 hereof




          (c) Tenant represents and warrants to Landlord that all such alterations will be performed in
a good and workmanlike manner, in accordance with the terms, provisions and conditions of this
Lease, and for structural alterations (other than Minor Alterations), in accordance with the plans
and specifications or itemization thereof approved by Landlord.




          (d) Landlord shall have the right to inspect any such work at all times during normal working
hours and to maintain at the Premises for that purpose (at its own expense) such inspector(s) as it
may deem necessary so long as such inspections do not interfere with Tenant’s work (but Landlord
shall not thereby assume any responsibility for the proper completion of the alterations in
accordance with the terms of this Lease, nor any liability arising from the improper performance
thereof).




19









 








          (e) All such alterations shall be performed at Tenant’s cost and expense and free of any
expense to Landlord and free of any liens on Landlord’s title, as more particularly provided for in
Section 15.2 hereof.




          (f) Upon substantial completion of any such alterations Tenant shall procure a certificate of
occupancy or other written approval, from the appropriate governmental authorities verifying the
substantial completion thereof and shall provide a copy of same to
Landlord, but only if such certificate of occupancy or other written approval is required by
the governmental authority.




          (g) Tenant shall, and hereby agrees to, indemnify and save and hold Landlord harmless from and
against and reimburse Landlord for any and all loss, damage, cost and expense (including, without
limitation, reasonable attorneys’ fees) incurred by or asserted against Landlord which is
occasioned by or results, directly or indirectly, from any construction or renovation activities
conducted upon the Premises; whether or not the same is caused by or is the fault of Tenant or any
contractor, subcontractor, laborer, supplier, materialman or any other third party.




ARTICLE X.

MAINTENANCE AND REPAIRS




     10.1 Repairs by Tenant. From and after the Effective Date and continuing throughout
the Term of this Lease Tenant shall at all times and at its sole cost and expense, put, keep,
replace and maintain the Premises (including, without limitation, the roof, plumbing systems,
electric systems and HVAC systems) in good repair and in good, safe and substantial order and
condition, shall make all repairs and replacements thereto, both inside and outside, structural and
non-structural, ordinary and extraordinary, howsoever the necessity or desirability for repairs may
occur, and whether or not necessitated by wear, tear, obsolescence or defects, latent or otherwise,
and shall use all reasonable precautions to prevent waste, damage or injury. Tenant shall also, at
its own cost and expense, put, keep, replace and maintain all landscaping, signs, sidewalks,
roadways, driveways and parking areas within the Premises in good repair and in good, safe and
substantial order and condition and free from dirt, standing water, rubbish and other obstructions
or obstacles, ordinary wear and tear excepted.



     10.2 Landlord’s Obligation. Landlord shall not be required to make any alterations,
reconstructions, replacements, changes, additions, improvements or repairs of any kind or nature
whatsoever to the Premises or any portion thereof (including, without limitation, any portion of
the Improvements) at any time during the Term of this Lease.



ARTICLE XI.

DAMAGE OR DESTRUCTION




     11.1 Restoration and Repair. If, during the Term of this Lease, the Improvements
shall be destroyed or damaged in whole or in part by fire, windstorm or any other cause whatsoever,
Tenant shall give Landlord immediate notice thereof and shall repair, reconstruct or replace the
Improvements, or the portion thereof so destroyed or damaged (whichever is reasonably required), at
least to the extent of the value and character thereof existing immediately prior to



20









 




such occurrence. All work shall be started as soon as practicable and completed, at Tenant’s sole cost
and expense. Tenant shall, however, promptly take such action as is necessary to assure that the
Premises (or any portion
thereof) do not constitute a nuisance or otherwise present a health or safety hazard. There
shall be no abatement or reduction in Rent as a result of a casualty. Notwithstanding anything to
the contrary if there is a casualty to the Premises in the last two (2) Lease Years of the Term or
of the then current Option Term which damages the Improvements by more than twenty five percent,
then Tenant, at its option, may terminate this Lease, by delivering written notice of termination
to Landlord within thirty (30) days of the event of casualty. All Rent shall be paid through the
date of Landlord’s receipt of Tenant’s notice of termination. In the event of such termination,
Landlord shall be entitled to any and all insurance proceeds relating to such casualty to be paid
under all insurance policies to be carried under Article VIII of this Lease or any other insurance
policies carried by Tenant on the Premises.




     11.2 Escrow of Insurance Proceeds. In the event of a casualty resulting in a loss
payment for the Improvements in an amount greater than * AND NO/100 DOLLARS ($*), the proceeds of
all insurance policies maintained by Tenant shall be deposited in Landlord’s name in an escrow
account at a bank or other financial institution designated by Landlord, and shall be used by
Tenant for the repair, reconstruction or restoration of the Improvements. Such proceeds shall be
disbursed periodically by Landlord upon certification of the architect or engineer having
supervision of the work that such amounts are the amounts paid or payable for the repair,
reconstruction or restoration. Tenant shall, at the time of establishment of such escrow account
and from time to time thereafter until said work shall have been completed and paid for, furnish
Landlord with adequate evidence that at all times the undisbursed portion of the escrowed funds,
together with any funds made available by Tenant, is sufficient to pay for the repair,
reconstruction or restoration in its entirety. Tenant shall obtain and make receipted bills
available to Landlord and, upon completion of said work, full and final waivers of lien. Upon the
final completion of the repair, reconstruction or restoration, any un-disbursed portion of the
escrowed funds, plus any interest earned thereon, shall be delivered to Landlord. In the event of
a casualty resulting in a loss payment for the Improvements in an amount equal to or less than the
amount stated above, the proceeds shall be paid to Tenant, and shall be applied towards repair,
reconstruction and restoration.



     11.3 Uninsured Losses. Nothing contained herein shall relieve Tenant of its
obligations under this Article if the destruction or damage is not covered, either in whole or in
part, by insurance.



ARTICLE XII.

CONDEMNATION




     12.1 Complete Taking. If the whole of the Premises shall be taken or condemned for
any public or quasi-public use or purpose, by right of eminent domain or by purchase in lieu
thereof, or if a substantial portion of the Premises shall be so taken or condemned that the
portion or portions remaining is or are not sufficient and suitable, in the mutual reasonable
judgment of Landlord and Tenant, for the continued operation of the business contemplated by this
Lease to be conducted thereon, therein or therefrom so as to effectively render the Premises untenantable, then this Lease
and the Term hereby granted shall cease and terminate as of the date on which the condemning
authority takes possession and all Rent shall be paid by Tenant to Landlord up to



21









 




that date or
refunded by Landlord to Tenant if Rent has previously been paid by Tenant beyond that date.




     12.2 Partial Taking. If a portion of the Premises is taken, and the portion or
portions remaining can, in the mutual reasonable judgment of Landlord and Tenant, be adapted and
used for the conduct of Tenant’s business operation, then the Tenant shall promptly restore the
remaining portion or portions thereof to a condition comparable to their condition at the time of
such taking or condemnation, less the portion or portions lost by the taking, and this Lease shall
continue in full force and effect except that the Rent payable hereunder shall, if necessary, be
equitably adjusted to take into account the portion or portions of the Premises lost by the taking.



     12.3 Award. The entire award for the Premises or the portion or portions thereof so
taken shall be apportioned between Landlord and Tenant as follows: (i) if this Lease terminates
due to a taking or condemnation, Landlord shall be entitled to the entire award; (ii) if this Lease
does not terminate due to such taking or condemnation, Tenant shall be entitled to the award to the
extent required for restoration of the Premises, and Landlord shall be entitled to the balance of
the award not applied to restoration. If this Lease does not terminate due to a taking or
condemnation, Tenant shall, with due diligence, restore the remaining portion or portions of the
Premises in the manner hereinabove provided. In such event, if the proceeds of the award to be
applied to restoration exceed $*, then the proceeds of the award to be applied to restoration shall
be deposited with a bank or financial institution designated by Landlord as if such award were
insurance proceeds, and the amount so deposited will thereafter be treated in the same manner as
insurance proceeds are to be treated under Section 11.2 of this Lease until the restoration has
been completed and Tenant has been reimbursed for all the costs and expenses thereof. Upon the
final completion of the repair, reconstruction or restoration, any funds in such account, together
with any interest earned thereon, shall be delivered to Landlord. If the award is insufficient to
pay for the restoration, Tenant shall be responsible for the remaining cost and expense of such
restoration.



     12.4 Disputes. If Landlord and Tenant cannot agree in respect of any matters to be
determined under this Article, a determination shall be requested of the court having jurisdiction
over the taking or condemnation; provided, however, that if said court will not accept such matters
for determination, either party may have the matters determined by a court otherwise having
jurisdiction over the parties.



ARTICLE XIII.

LANDLORD’S RIGHT TO INSPECT




     Landlord and its agents shall have the right to enter upon the Premises or any portion thereof
at any reasonable time to inspect, by giving to Tenant two (2) business days prior written
notice, the operation, sanitation, safety, maintenance and use of the same, or any portions of
the same and to assure itself that Tenant is in full compliance with its obligations under this
Lease (but Landlord shall not thereby assume any responsibility for the performance of any of
Tenant’s obligations hereunder, nor any liability arising from the improper performance thereof).
In making any such inspections, Landlord shall not unduly interrupt or interfere with the conduct
of Tenant’s business. Notwithstanding any other provisions of this Lease to the contrary, Landlord
shall be solely responsible for any costs, claims, damages, expenses or liabilities that arise as a



22









 




result of Landlord’s inspection to the extent attributable to the negligence or misconduct of
Landlord or Landlord’s agents.




ARTICLE XIV.

ASSIGNMENT AND SUBLETTING BY TENANT




     Tenant may assign its interest in this Lease or sublet the whole or any part of the Premises
without the prior consent of Landlord provided that (i) Tenant shall deliver to Landlord a copy of
the instrument(s) of assignment or sublease, and (ii) any such assignee or sublessee shall agree in
writing to assume and perform all of the terms and conditions of this Lease on Tenant’s part to be
performed with respect to the assigned or subleased estate from and after the commencement date of
such assignment or subletting. Tenant shall remain primarily liable and responsible under this
Lease in the event of any such assignment or sublease and any such assignment or sublease shall not
operate to release Tenant from its obligations hereunder. Any assignment of this Lease or
subletting of the Premises without notification to Landlord shall not be effective as to Landlord
and Landlord shall not be bound thereby until receipt of such notification. Any assignment of this
Lease or subletting of the Premises for an unlawful or prohibited use or a use restricted by
matters of title shall be void and of no force and effect. Notwithstanding the foregoing, SSP
Partners, as Tenant, may be released from continuing liability under this Lease should Tenant
assign this Lease to an entity that has both (i) at the time of said assignment, a net worth
(excluding goodwill) of $* as evidenced by audited financial statements of assignee evidencing said
net worth delivered by Tenant to Landlord at the time of such assignment, and (ii) experience and
creditworthiness substantially similar to Tenant at the time of said assignment. «Assignment»



     Landlord agrees that with regard to any sublease or other occupancy agreement entered into by
Tenant on or in the Premises, so long as this Lease is in place and Tenant has not committed an
Event of Default hereunder, all income from any said sublease or occupancy agreement shall belong
to Tenant and Landlord hereby waives any claims with respect to the income from any sublease or any
occupancy rights granted by Tenant on the Premises, which shall remain the Property of Tenant.
Should Tenant sublease any part of the Premises or otherwise enter into any occupancy agreements
during the Term, nothing in this Lease shall obligate Landlord to recognize the rights of any
subtenants or other parties in occupancy of the Premises.



ARTICLE XV.

LANDLORD’S INTEREST NOT SUBJECT TO LIENS




     15.1 Liens, Generally. Tenant shall not create or cause to be imposed, claimed or filed upon the Premises, or any
portion thereof, or upon the interest of Landlord therein, any lien, charge or encumbrance
whatsoever. If, because of any act or omission of Tenant, any such lien, charge or encumbrance
shall be imposed, claimed or filed, Tenant shall, at its sole cost and expense, cause the same to
be fully paid and satisfied or otherwise discharged of record (by bonding or otherwise) and Tenant
shall indemnify and save and hold Landlord harmless from and against any and all costs,
liabilities, suits, penalties, claims and demands whatsoever, and from and against any and all
attorneys’ fees, at both trial and all appellate levels, resulting or on account thereof and
therefrom. In the event that Tenant shall fail to comply with the foregoing



23









 




provisions of this
Section 15.1, Landlord shall have the option of paying, satisfying or otherwise discharging (by
bonding or otherwise) such lien, charge or encumbrance and Tenant agrees to reimburse Landlord,
upon demand and as Additional Rent, for all sums so paid and for all costs and expenses incurred by
Landlord in connection therewith, together with interest thereon as provided in this Lease, until
paid. The terms and conditions of this section shall in no way limit Tenant’s right to place a
lien upon any of Tenant’s personalty or trade fixtures located on the Premises. In addition,
Tenant shall have the unconditional right to grant mortgages (a “Leasehold Mortgage”)
covering the leasehold interest created by this Lease and in and to the Improvements and any
fixtures, furnishings, machinery or equipment owned by Tenant and located therein. The following
terms and provisions shall apply to any Leasehold Mortgage:




               (i) Tenant may give notice to Landlord that all notices under this Lease should also be given
to the holder of the Leasehold Mortgage (the “Leasehold Mortgagee”), and upon receipt of
such notice, Landlord will copy the Leasehold Mortgagee on any notices of default sent under this
Lease, at the address provided by Tenant. A Leasehold Mortgagee may, but shall not be obligated
to, cure any default or perform any obligation to be performed by Tenant hereunder in the same
period of time provided for Tenant to perform or cure any non-performance hereunder.



               (ii) No assignment of this Lease to a Leasehold Mortgagee, or foreclosure by a Leasehold
Mortgagee against Tenant’s interest under this Lease or its interest in the Improvements and/or any
subleases thereof, shall be deemed an assignment in violation of this Lease. Landlord agrees that
any Leasehold Mortgagee who has been identified by Tenant as a Leasehold Mortgagee may notify
Landlord that such Leasehold Mortgagee has succeeded to the interest of “Tenant” hereunder, and
Landlord thereafter shall treat such Leasehold Mortgagee as the Tenant hereunder without any
obligation to inquire into the validity of such Leasehold Mortgagee’s right to succeed to the
interest of “Tenant” hereunder.



     15.2 Mechanics Liens. Landlord’s interest in the Premises shall not be subjected to
liens of any nature by reason of Tenant’s construction, alteration, renovation, repair,
restoration, replacement or reconstruction of any improvements on or in the Premises, or by reason
of any other act or omission of Tenant (or of any person claiming by, through or under Tenant)
including, but not limited to, mechanics’ and materialmen’s liens. All persons dealing with Tenant
are hereby placed on notice that such persons shall not look to Landlord or to Landlord’s credit or
assets (including Landlord’s interest in the Premises) for payment or satisfaction of any
obligations incurred in connection with the construction, alteration, renovation, repair,
restoration, replacement or reconstruction thereof by or on behalf of Tenant. Tenant has no power, right
or authority to subject Landlord’s interest in the Premises to any mechanic’s or materialmen’s lien
or claim of lien. If a lien, a claim of lien or an order for the payment of money shall be imposed
against the Premises on account of work performed, or alleged to have been performed, for or on
behalf of Tenant, Tenant shall, within thirty (30) days after written notice of the imposition of
such lien, claim or order, cause the Premises to be released therefrom by the payment of the
obligation secured thereby or by furnishing a bond or by any other method prescribed or permitted
by law. If a lien is released, Tenant shall thereupon establish the release as a matter of record
by recording or filing it in the appropriate office of land records of the County in which the
Premises is located, and shall furnish Landlord with a copy of same.



24









 





     15.3 Contest of Liens. Tenant may, at its option, contest the validity of any lien or
claim of lien if Tenant shall have first posted an appropriate and sufficient bond in favor of the
claimant or paid the appropriate sum into court, if permitted by law, and thereby obtained the
release of the Premises from such lien. If judgment is obtained by the claimant under any lien,
Tenant shall pay the same promptly after such judgment shall have become final and the time for
appeal therefrom has expired without appeal having been taken. Tenant shall, at its own expense,
defend the interests of Tenant and Landlord in any and all such suits; provided, however, that
Landlord may, at its election, engage its own counsel and assert its own defenses, in which event
Tenant shall cooperate with Landlord and make available to Landlord all information and data which
Landlord deems necessary or desirable for such defense.



     15.4 Notices of Commencement of Construction. If required by the laws of the State in
which the Premises is located, prior to commencement by Tenant of any work on the Premises Tenant
shall record or file a notice of the commencement of such work (the “Notice of
Commencement”) in the land records of the County in which the Premises are located, identifying
Tenant as the party for whom such work is being performed, stating such other matters as may be
required by law and requiring the service of copies of all notices, liens or claims of lien upon
Landlord. Any such Notice of Commencement shall clearly reflect that the interest of Tenant in the
Premises is that of a leasehold estate and shall also clearly reflect that the interest of Landlord
as the fee simple owner of the Premises shall not be subject to mechanics or materialmen’s liens on
account of the work which is the subject of such Notice of Commencement. A copy of any such Notice
of Commencement shall be furnished to and approved by Landlord and its attorneys prior to the
recording or filing thereof, as aforesaid.



ARTICLE XVI.

SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE




     16.1 Subordination. This Lease, Tenant’s interest hereunder and Tenant’s leasehold
interest in and to the Premises are hereby agreed by Tenant to be and are hereby made junior,
inferior, subordinate and subject in right, title, interest, lien, encumbrance, priority and all
other respects to any mortgage or mortgages now or hereafter in force and effect upon or encumbering Landlord’s
interest in the Premises, or any portion thereof, and to all collateral assignments by Landlord to
any third party or parties of any of Landlord’s rights under this Lease or the rents, issues and
profits thereof or therefrom as security for any liability or indebtedness, direct, indirect or
contingent, of Landlord to such third party or parties, and to all future modifications,
extensions, renewals, consolidations and replacements of, and all amendments and supplements to any
such mortgage, mortgages or assignments, and upon recording of any such mortgage, mortgages or
assignments, the same shall be deemed to be prior in dignity, lien and encumbrance to this Lease,
Tenant’s interest hereunder and Tenant’s leasehold interest in and to the Premises irrespective of
the dates of execution, delivery or recordation of any such mortgage, mortgages or assignments;
provided, however, such subordination shall be upon the express condition that the validity of this
Lease shall be recognized by the holder of any such mortgage or assignment, and that,
notwithstanding any default by the Landlord with respect to such mortgage or assignment, such
holder of such mortgage or assignment shall agree, pursuant to a Subordination, Non-Disturbance and
Attornment Agreement in a form reasonably acceptable to lender, Landlord and Tenant that Tenant’s
possession and right of use under this Lease in and to the Premises shall not be disturbed by such
mortgagee or ground lessor unless and until an Event



25









 




of Default shall have occurred and be
continuing and, as a result of such Event of Default, this Lease or Tenant’s right to possession
hereunder shall have been terminated in accordance with the provisions of this Lease. The
foregoing subordination provisions of this Section shall be automatic and self-operative without
the necessity of the execution of any further instrument or agreement of subordination on the part
of Tenant. However, if Landlord or the holder or proposed holder of any such mortgage, mortgages
or assignments shall request that Tenant execute and deliver any further instrument or agreement of
subordination of this Lease, Tenant’s interest hereunder or Tenant’s leasehold interest in the
Premises to any such mortgage, mortgages or assignments in confirmation or furtherance of or in
addition to the foregoing subordination provisions of this Section, Tenant shall execute and
deliver the same to the requesting party within ten (10) business days following Tenant’s receipt
of such a written request.




     16.2 Attornment. Tenant shall and hereby agrees to attorn, and be bound under all of
the terms, provisions, covenants and conditions of this Lease, to any successor of the interest of
Landlord under this Lease for the balance of the Term of this Lease remaining at the time of the
succession of such interest to such successor. In particular, in the event that any proceedings
are brought for the foreclosure of any mortgage or security interest encumbering or collateral
assignment of Landlord’s interest in the Premises, or any portion thereof, Tenant shall attorn to
the purchaser at any such foreclosure sale and recognize such purchaser as Landlord under this
Lease, subject, however, to all of the terms and conditions of this Lease. Tenant agrees that
neither the purchaser at any such foreclosure sale nor the foreclosing mortgagee or holder of such
security interest or collateral assignment shall have any liability for any act or omission of
Landlord, be subject to any offsets or defenses which Tenant may have as claim against Landlord, or
be bound by any advance rents which may have been paid by Tenant to Landlord for more than the
current period in which such rents come due.



     16.3 Rights of Mortgagees and Assignees. At the time of giving any notice of default to Landlord, Tenant shall mail or deliver to the
holders of any mortgage on the Premises or holder of security interest in or collateral assignment
of this Lease who have, in writing, notified Tenant of their interests (individually a
“Mortgagee”) a copy of any such notice. No notice of default or termination of this Lease
by Tenant shall be effective until every Mortgagee shall have been furnished a copy of such notice
by Tenant. In the event Landlord fails to cure any default by it under this Lease, any Mortgagee
shall have, at its option, a period of thirty (30) days within which to remedy such default of
Landlord or to cause such default to be remedied. In the event that a Mortgagee elects to cure any
such default by Landlord, then Tenant shall accept such performance on the part of such Mortgagee
as though the same had been performed by Landlord, and for such purpose Tenant hereby authorizes
any Mortgagee to enter upon the Premises to the extent necessary to exercise any of Landlord’s
rights, powers and duties under this Lease. If any Mortgagee promptly commences and diligently
pursues to cure a default by Landlord which is reasonably capable of being cured by that Mortgagee,
then Tenant will not terminate this Lease or cease to perform any of its obligations under this
Lease so long as the Mortgagee is, with due diligence, engaged in the curing of such default.



26









 





ARTICLE XVII.

END OF TERM




     17.1 Surrender of Premises. Tenant shall, on or before the last day of the Term of
this Lease or upon the sooner termination thereof, peaceably and quietly surrender and deliver to
Landlord the Premises (including, without limitation, all Improvements and all additions thereto
and replacements thereof made from time to time over the Term of this Lease), in good order,
condition and repair, and free and clear of all liens and encumbrances other than those which exist
on the Rental Commencement Date or are otherwise specifically approved and acknowledged by Landlord
in writing and free of Tenant’s Personal Property. In addition, Tenant shall comply with the close
out requirements of Section 4.6 of this Lease.



     The provisions of this Article shall survive the termination or expiration of this Lease.



     17.2 Holding Over. If Tenant or any other person or party shall remain in possession
of the Premises or any part thereof following the expiration of the Term or earlier termination of
this Lease or should Landlord leave any of Tenant’s Personal Property on the Premises, without an
agreement in writing between Landlord and Tenant with respect thereto, the person or party
remaining in possession shall be deemed to be a tenant at sufferance, and during any such holdover,
the Rent payable under this Lease by such tenant at sufferance shall be double the rate or rates in
effect immediately prior to the expiration of the Term or earlier termination of this Lease. In no
event, however, shall such holding over be deemed or construed to be or constitute a renewal or
extension of this Lease.



     17.3 Reserved.



ARTICLE XVIII.

LIABILITY OF LANDLORD; INDEMNIFICATION




     18.1 Liability of Landlord. Except as otherwise provided in this Lease, Landlord
shall not be liable to Tenant, its employees, agents, business invitees, licensees, customers,
clients, or guests for any damage, injury, loss, compensation or claim, including, but not limited
to, claims for the interruption of or loss to Tenant’s business, based on, arising out of or
resulting from any cause whatsoever (except the negligence of Landlord, its successors and
assigns, and their respective directors, officers, employees and agents), including, but not
limited to: (i) repairs to any portion of the Premises; (ii) interruption in Tenant’s use of the
Premises; (iii) any accident or damage resulting from the use or operation (by Landlord, Tenant or
any other person or persons) of any equipment within the Premises, including without limitation,
heating, cooling, electrical or plumbing equipment or apparatus; (iv) the termination of this Lease
by reason of the condemnation or destruction of the Premises in accordance with the provisions of
this Lease; (v) any fire, robbery, theft, mysterious disappearance or other casualty; (vi) the
actions of any other person or persons; and (g) any leakage or seepage in or from any part or
portion of the Premises, whether from water, rain or other precipitation that may leak into, or
flow from, any part of the Premises, or from drains, pipes or plumbing fixtures in the
Improvements. Any storage or placement by the Tenant or its employees of goods, property or
personal effects in or about the Premises shall be done at the sole risk of the Tenant.



27









 





     18.2 Indemnification of Landlord. Subject to the limitations set forth in Section
18.1 above, Tenant shall defend, indemnify and save and hold Landlord harmless from and against any
and all liabilities, obligations, losses, damages, injunctions, suits, actions, fines, penalties,
claims, demands, costs and expenses of every kind or nature (except as may arise through the
negligence or misconduct of Landlord, its successors and assigns, and their respective directors,
officers, employees and agents) , including reasonable attorneys’ fees and court costs, incurred by
Landlord, arising directly or indirectly from or out of: (i) any failure by Tenant to perform any
of the terms, provisions, covenants or conditions of this Lease on Tenant’s part to be performed;
(ii) any accident, injury or damage which shall happen at, in or upon the Premises, however
occurring; (iii) any matter or thing growing out of the condition, occupation, maintenance,
alteration, repair, use or operation by any person of the Premises, or any part thereof, or the
operation of the business contemplated by this Lease to be conducted thereon, thereat, therein, or
therefrom; (iv) any failure of Tenant to comply with any laws, ordinances, requirements, orders,
directions, rules or regulations of any governmental authority, including, without limitation, the
Accessibility Laws; or (v) any other act or omission of Tenant, its employees, agents, invitees,
customers, licensees or contractors. Tenant’s indemnity obligations under this Article and
elsewhere in this Lease arising prior to the expiration or earlier termination of this Lease shall
survive any such expiration or termination, subject to the limitations in Section 4.6(b) and
subject to Tenant’s release from continuing liability under Article XIV hereof (after an assignment
to an assignee that meets the net worth requirements set forth in the first paragraph of Article
XIV hereof).



     18.3 Notice of Claim or Suit / Notice of Environmental Matters. Tenant shall promptly notify Landlord of any claim, action, proceeding or suit involving the
Premises which is instituted or threatened against Tenant or Landlord of which Tenant receives
notice or of which Tenant acquires knowledge. In the event Landlord is made a party to any action
for damages or other relief against which Tenant has indemnified Landlord, as aforesaid, Tenant
shall defend Landlord, pay all costs and shall provide effective counsel to Landlord in such
litigation or, at Landlord’s option, shall pay all reasonable attorneys’ fees and costs incurred by
Landlord in connection with its own defense or settlement of said litigation.



     18.4 Limitation on Liability of Landlord. In the event Tenant is awarded a money
judgment against Landlord, Tenant’s sole recourse for satisfaction of such judgment shall be
limited to execution against the Premises. In no event shall any officer, director, employee or
shareholder of Landlord be personally liable for the obligations of Landlord hereunder. Nothing in
this section shall limit Landlord’s liability for or Tenant’s ability to recover against Landlord
for, any tort committed by Landlord or Landlord’s agents against Tenant or any other person on, in
or about the Premises, including the negligent acts of Landlord or Landlord’s agents while
inspecting the Premises pursuant to any of the terms or provisions of this Lease.



ARTICLE XIX.

DEFAULT




     19.1 Events of Default. Each of the following events shall be an event of default
hereunder by Tenant and shall constitute a breach of this Lease (individually an “Event of
Default”):



28









 





          (a) If Tenant shall fail to pay, when due, any Rent, or portion thereof, or any other sum due
to Landlord from Tenant hereunder, and such failure shall continue for a period of ten (10) days
after notice from Landlord; provided, however, after Tenant’s first failure to pay in any calendar
year during the Term, the cure period shall be five (5) days instead of ten (10) days.




          (b) If Tenant shall violate or fail to comply with or perform any other term, provision,
covenant, agreement or condition to be performed or observed by Tenant under this Lease, and such
violation or failure shall continue for a period of thirty (30) days after written notice thereof
from Landlord; provided, however, Tenant shall have more than thirty (30) days to cure the
non-monetary default as is necessary provided Tenant commences to cure said default within thirty
(30) days of receipt of Landlord’s notice, Tenant diligently pursues said cure to completion, and
Tenant completes said cure within one hundred and eighty (180) days of receipt of Landlord’s
notice, or longer if Tenant is diligently pursuing remediation of a Material Release in, on or
under the Premises in compliance with the applicable governmental authority.




          (c) If, at any time during the Term of this Lease, Tenant shall file in any court, pursuant to
any statute of either the United States or of any State, a petition in bankruptcy or insolvency,
or for reorganization or arrangement, or for the appointment of a receiver or trustee of all or any
portion of Tenant’s property, including, without limitation, its leasehold
interest in the Premises, or if Tenant shall make an assignment for the benefit of its
creditors or petitions for or enters into an arrangement with its creditors.




          (d) If, at any time during the Term of this Lease, there shall be filed against Tenant in any
courts pursuant to any statute of the United States or of any State, a petition in bankruptcy or
insolvency, or for reorganization, or for the appointment of a receiver or trustee of all or a
portion of Tenant’s property, including, without limitation, its leasehold interest in the
Premises, and any such proceeding against Tenant shall not be dismissed within sixty (60) days
following the commencement thereof.




          (e) If Tenant’s leasehold interest in the Premises or property therein shall be seized under
any levy, execution, attachment or other process of court where the same shall not be vacated or
stayed on appeal or otherwise within sixty (60) days thereafter, or if Tenant’s leasehold interest
in the Premises is sold by judicial sale and such sale is not vacated, set aside or stayed on
appeal or otherwise within ninety (90) days thereafter.




          (f) «Cross_1»«Cross_2»«Cross_3»«Cross_4»«Cross_5»




          (g) If Tenant commits an anticipatory breach of this Lease, as defined herein. As used
herein, “Anticipatory Breach” shall mean either (i) Tenant’s repudiation of the Lease in writing,
or (ii) Tenant’s failure to pay Rent or other amounts due under this Lease as and when they are due
and payable, after any applicable notice period as set forth in this Section 19.1.




     19.2 Remedies on Default. If any of the Events of Default hereinabove specified shall
occur, Landlord, at any time thereafter, shall have and may exercise any of the following rights
and remedies:



29









 





          (a) Landlord may, pursuant to written notice thereof to Tenant, terminate this Lease and,
peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of
the Premises for Landlord’s own account and, for Tenant’s breach of and default under this Lease,
recover promptly from Tenant any and all rents and other sums and damages due or in existence at
the time of such termination, including, without limitation, (i) all Rent and other sums, charges,
payments, costs and expenses agreed and/or required to be paid by Tenant to Landlord hereunder,
(ii) all costs and expenses of Landlord in connection with the recovery of possession of the
Premises, including reasonable attorneys’ fees and court costs, and (iii) all costs and expenses of
Landlord in connection with any reletting or attempted reletting of the Premises or any part or
parts thereof, including, without limitation, brokerage fees, attorneys’ fees and the cost of any
alterations or repairs which may be reasonably required to so relet the Premises, or any part or
parts thereof.




          (b) Landlord may, pursuant to any prior notice required by law, and without terminating this
Lease, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume
possession of the Premises for the account of Tenant, make such alterations of and repairs to the
Premises as may be reasonably necessary in order to relet the same or any part or parts thereof and
relet or attempt to relet the Premises or any part or parts thereof for such term or terms (which
may be for a term or terms extending beyond the Term of this Lease), at such rents and upon such
other terms and provisions as Landlord, in its sole, but reasonable,
discretion, may deem advisable. If Landlord relets or attempts to relet the Premises,
Landlord shall at its sole discretion determine the terms and provisions of any new lease or
sublease and whether or not a particular proposed new tenant or sublessee is acceptable to
Landlord. Upon any such reletting, all rents received by the Landlord from such reletting shall be
applied, (a) first, to the payment of all costs and expenses of recovering possession of the
Premises, (b) second, to the payment of any costs and expenses of such reletting, including
brokerage fees, attorneys’ fees and the cost of any alterations and repairs reasonably required for
such reletting; (c) third, to the payment of any indebtedness, other than Rent, due hereunder from
Tenant to the Landlord, (d) fourth, to the payment of all Rent and other sums due and unpaid
hereunder, and (e) fifth, the residue, if any, shall be held by the Landlord and applied in payment
of future Rents as the same may become due and payable hereunder. If the rents received from such
reletting during any period shall be less than that required to be paid during that period by the
Tenant hereunder, Tenant shall promptly pay any such deficiency to the Landlord and failing the
prompt payment thereof by Tenant to Landlord, Landlord shall immediately be entitled to institute
legal proceedings for the recovery and collection of the same. Such deficiency shall be calculated
and paid at the time each payment of rent shall otherwise become due under this Lease, or, at the
option of Landlord, at the end of the Term of this Lease. Landlord shall, in addition, be
immediately entitled to sue for and otherwise recover from Tenant any other damages occasioned by
or resulting from an Event of Default under this Lease other than a default in the payment of rent.
No such re-entry, retaking or resumption of possession of the Premises by the Landlord for the
account of Tenant shall be construed as an election on the part of Landlord to terminate this Lease
unless a written notice of such intention shall be given to the Tenant or unless the termination of
this Lease be decreed by a court of competent jurisdiction. Notwithstanding any such re-entry and
reletting or attempted reletting of the Premises or any part or parts thereof for the account of
Tenant without termination, Landlord may at any time thereafter, upon written notice to Tenant,
elect to terminate this Lease or pursue any other remedy available to Landlord for Tenant’s
previous breach of or default under this Lease.




30









 







Landlord, in the exercise of its reasonable
business judgment, shall minimize or mitigate Landlord’s damages as a result of the Event of
Default of Tenant under this Lease.




          (c) Landlord may, (i) without re-entering, retaking or resuming possession of the Premises,
sue for all Rent and all other sums, charges, payments, costs and expenses due from Tenant to
Landlord hereunder as they become due under this Lease, taking into account that Tenant’s right and
option to pay the Rent hereunder on a monthly basis in any particular Lease Year is conditioned
upon the absence of a default on Tenant’s part in the performance of its obligations under this
Lease, or (ii) at Landlord’s option, dispossess Tenant and to the fullest extent permitted by law,
collect the difference between the total of all Rent provided for in this Lease for the remainder
of the Term and the reasonable rental value for the Premises for such period, such difference
discounted to the present value.




     In addition to the remedies hereinabove specified and enumerated, Landlord shall have and may
exercise the right to invoke any other remedies allowed at law or in equity as if the remedies of
re-entry, unlawful detainer proceedings and other remedies were not herein provided. Accordingly,
the mention in this Lease of any particular remedy shall not preclude Landlord from having or
exercising any other remedy at law or in equity. Nothing herein contained shall be construed as
precluding the Landlord from having or exercising such lawful remedies as may be and become
necessary in order to preserve the Landlord’s right or the
interest of the Landlord in the Premises and in this Lease, even before the expiration of any
notice periods provided for in this Lease, if under the particular circumstances then existing the
allowance of such notice periods will prejudice or will endanger the rights and estate of the
Landlord in this Lease and in the Premises; provided, however, that nothing herein shall entitle
Landlord to receive more than Landlord is otherwise entitled to receive under this Lease.



     19.3 Landlord May Cure Tenant Defaults. If an Event of Default shall occur, other
than the payment of Rent, Landlord may, after notice to Tenant and a reasonable time to perform
after such notice (or without notice if, in Landlord’s reasonable opinion, an emergency exists)
perform the same for the account and at the expense of Tenant. If, at any time and by reason of
such default, Landlord is compelled to pay, or elects to pay, any sum of money or do any act which
will require the payment of any sum of money, or is compelled to incur any expense in the
enforcement of its rights hereunder or otherwise, such sum or sums, together with interest thereon
at the highest rate allowed under the laws of the State of Texas, shall be deemed Additional Rent
hereunder and shall be repaid to Landlord by Tenant promptly when billed therefor, and Landlord
shall have all the same rights and remedies in respect thereof as Landlord has in respect of the
rents herein reserved.



     19.4 Waiver of Landlord’s Lien. Landlord hereby expressly waives all liens,
constitutional, statutory or otherwise, which it may have with regard to Tenant’s personal
property, trade fixtures, furniture, equipment, stock, goods, merchandise, inventory, and other
property placed on the Premises during the term of this Lease.



     19.5 Rights Cumulative. The rights and remedies provided and available to Landlord in
this Lease are distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by Landlord, shall be deemed to be in exclusion of any other.



31









 





ARTICLE XX.

NOTICES




     Any notice required or permitted to be given under this Lease shall be deemed given if
delivered personally or sent by (a) United States registered or certified mail, postage prepaid,
return receipt requested, or (b) overnight courier service, and addressed as follows:



	 	 	 	 	 
	 

	 	If to Landlord:
	 	«BuyerLandlord»
	 

	 	 	 	«Buyer_Address»
	 

	 	 	 	«Buyer_City», «Buyer_State» «Buyer_Zip»
	 

	 	 	 	Attention: «Attn»
	 
	 	 	 	 
	 

	 	With copy to:
	 	NNN Acquisitions, Inc.
	 

	 	 	 	450 South Orange Avenue, Suite 900
	 

	 	 	 	Orlando, Florida 32801
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	If to Tenant:
	 	Mr. Sam L. Susser
	 

	 	 	 	4433 Baldwin
	 

	 	 	 	Corpus Christi, Texas 78408
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Legal Department
	 

	 	 	 	SSP Partners
	 

	 	 	 	P.O. Box 9036
	 

	 	 	 	Corpus Christi, Texas 78469





or such other address as may be designated by either party by written notice to the other. Except
as otherwise provided in this Lease, every notice, demand, request or other communication hereunder
shall be deemed to have been given or served upon actual receipt thereof. Accordingly, a notice
shall not be effective until actually received. Notwithstanding the foregoing, any notice mailed
to the last designated address of any person or party to which a notice may be or is required to be
delivered pursuant to this Lease shall not be deemed ineffective if actual delivery cannot be made
due to a change of address of the person or party to which the notice is directed or the failure or
refusal of such person or party to accept delivery of the notice.




ARTICLE XXI.

MISCELLANEOUS




     21.1 “Triple Net” Lease. Landlord and Tenant acknowledge and agree that both parties
intend that this Lease shall be and constitute what is generally referred to in the real estate
industry as a “triple net” or “absolute net” lease, such that Tenant shall be obligated hereunder
to pay all costs and expenses incurred with respect to, and associated with, the Premises and the
business operated thereon and therein, including, without limitation, all taxes and assessments,
utility charges, insurance costs, maintenance costs and repair, replacement and restoration
expenses (all as more particularly herein provided) together with any and all other assessments,
charges, costs and expenses of any kind or nature whatsoever related to, or associated with, the



32









 




Premises and the business operated thereon and therein; provided, however, that Landlord shall
nonetheless be obligated to pay any debt service on any mortgage encumbering Landlord’s fee simple
interest in the Premises, and Landlord’s personal income taxes with respect to the rents received
by Landlord under this Lease. Except as expressly provided in this Lease, Landlord shall bear no
cost or expense of any type or nature with respect to, or associated with, the Premises.




     21.2 Estoppel Certificates. At any time and from time to time, Landlord and Tenant
shall, at no cost to the non-requesting party, promptly and in no event later than twenty (20) days
after a request from either
Tenant (or any Leasehold Mortgagee), or Landlord, execute, acknowledge and deliver to the
requesting party or any present or proposed mortgagee of the leasehold estate or the fee estate, or
any proposed assignee, a certificate in the form set forth on Exhibit B, certifying: (i)
that the Lease is in full force and effect and has not been modified (or if modified, setting forth
all modifications), or if the Lease is not in full force and effect, the certificate shall so
specify the reasons therefore; (ii) the commencement and expiration dates of the Lease Term; (iii)
the date to which the rentals have been paid under the Lease and the amount thereof then payable;
(iv) whether there are then any existing known defaults by Tenant (or Landlord) in the performance
of its obligations under this Lease, and, if there are any such known defaults, specifying the
nature and extent thereof; (v) that no notice has been received by Landlord (or Tenant) of any
default under this Lease which has not been cured, except as to defaults specified in the
certificate; (vi) the capacity of the person executing such certificate, and that such person is
duly authorized to execute the same on behalf of Landlord; (vii) an agreement to provide notice of
default to any mortgagee of the leasehold estate (or fee estate) and the same opportunity provided
herein (within the same time period) to Landlord or Tenant to cure said default; (viii) the number
of options remaining in the term, if any; and (ix) any other information reasonably requested by
Tenant or Landlord or its present or proposed assignee or mortgagee. If Landlord or Tenant shall
fail or refuse to sign an estoppel certificate in accordance with the provisions of this Section
within the time period set forth above following a request by the other party to this Lease, the
party failing to respond irrevocably constitutes and appoints the other party as its
attorney-in-fact for the sole purpose of executing and delivering the certificate to any such third
party.



     21.3 Brokerage. Landlord and Tenant hereby represent and warrant to each other that
they have not engaged, employed or utilized the services of any business or real estate brokers,
salesmen, agents or finders in the initiation, negotiation or consummation of the business and real
estate transaction reflected in this Lease. On the basis of such representation and warranty, each
party shall and hereby agrees to indemnify and save and hold the other party harmless from and
against the payment of any commissions or fees to or claims for commissions or fees by any real
estate or business broker, salesman, agent or finder resulting from or arising out of any actions
taken or agreements made by them with respect to the business and real estate transaction reflected
in this Lease.



     21.4 No Partnership or Joint Venture. Landlord shall not, by virtue of this Lease, in
any way or for any purpose, be deemed to be a partner of Tenant in the conduct of Tenant’s business
upon, within or from the Premises or otherwise, or a joint venturer or a member of a joint
enterprise with Tenant.



33









 





     21.5 Entire Agreement. This Lease contains the entire agreement between the parties
and, except as otherwise provided herein, can only be changed, modified, amended or terminated by
an instrument in writing executed by the parties. It is mutually acknowledged and agreed by
Landlord and Tenant that there are no verbal agreements, representations, warranties or other
understandings affecting the same; and that Tenant hereby waives, as a material part of the consideration hereof, all
claims against Landlord for rescission, damages or any other form of relief by reason of any
alleged covenant, warranty, representation, agreement or understanding not contained in this Lease.
This Lease shall not be changed, amended or modified except by a written instrument executed by
Landlord and Tenant.



     21.6 Waiver. No release, discharge or waiver of any provision hereof shall be
enforceable against or binding upon Landlord or Tenant unless in writing and executed by Landlord
or Tenant, as the case may be. Neither the failure of Landlord or Tenant to insist upon a strict
performance of any of the terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of any Rent by Landlord with knowledge of a breach of this Lease by Tenant in the
performance of its obligations hereunder, shall be deemed a waiver of any rights or remedies that
Landlord or Tenant may have or a waiver of any subsequent breach or default in any of such terms,
provisions, covenants, agreements and conditions.



     21.7 Time. Time is of the essence in every particular of this Lease, including,
without limitation, obligations for the payment of money.



     21.8 Costs and Attorneys’ Fees. If either party shall bring an action to recover any
sum due hereunder, or for any breach hereunder, and shall obtain a judgment or decree in its favor,
the court may award to such prevailing party its reasonable costs and reasonable attorneys’ fees,
specifically including reasonable attorneys’ fees incurred in connection with any appeals (whether
or not taxable as such by law). Landlord shall also be entitled to recover its reasonable
attorneys’ fees and costs incurred in any bankruptcy action filed by or against Tenant, including,
without limitation, those incurred in seeking relief from the automatic stay, in dealing with the
assumption or rejection of this Lease, in any adversary proceeding, and in the preparation and
filing of any proof of claim.



     21.9 Financial Data. Tenant shall deliver to Landlord those documents in the time
frames provided in Schedule 1.



     21.10 Captions and Headings. The captions and headings in this Lease have been
inserted herein only as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of, or otherwise affect, the provisions of this Lease.



     21.11 Severability. If any provision of this Lease shall be deemed to be invalid, it
shall be considered deleted therefrom and shall not invalidate the remaining provisions of this
Lease.



     21.12 Successors and Assigns. The agreements, terms, provisions, covenants and
conditions contained in this Lease shall be binding upon and inure to the benefit of Landlord and
Tenant and, to the extent permitted herein, their respective successors and assigns.



     21.13 Applicable Law. This Lease shall be governed by, and construed in accordance
with, the laws of the State in which the Premises is located.



34









 





     21.14 Recordation of Memorandum of Lease. At either party’s option, a short form
memorandum of this Lease, in the form attached hereto as Exhibit C shall be recorded or
filed among the appropriate land records of the County in which the Premises is located, and Tenant
shall pay the recording costs associated therewith. In the event of a discrepancy between the
provisions of this Lease and such short form memorandum thereof, the provisions of this Lease shall
prevail.



     21.15 Waiver of Jury Trial. TENANT AND LANDLORD HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS
OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS LEASE OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD’S ACCEPTING THIS LEASE.



     21.16 Counterparts. This Lease may be executed in counterparts by the parties hereto
and each shall be considered an original, but all such counterparts shall be construed together and
constitute one Lease between the parties hereto.



     21.17 Not a Security Arrangement. The parties hereto agree and acknowledge that this
transaction is not intended as a security arrangement or financing secured by real property, but
shall be construed for all purposes as a true operating lease.



     21.18 Maintenance Records and Contracts. Tenant shall keep and maintain at all times
complete and accurate books and records regarding the maintenance and repair of the Premises, and
upon the request of Landlord not to be made more than once in any calendar year, Tenant shall
furnish to Landlord within thirty (30) days of such request, copies of all
maintenance and repair records for the Premises in Tenant’s possession for that year,
including any maintenance or service contracts.



     21.19 Tenant’s Personal Property. During the term of this Lease Tenant may, at
Tenant’s expense, place or install such furniture, trade fixtures, equipment, machinery,
furnishings, face plates of signage and other articles of movable personal property (collectively,
“Tenant’s Personal Property”) on the Premises as may be needed for the conduct of Tenant’s
business. It is expressly understood that the term Tenant’s Personal Property as used herein shall
in no event extend to leasehold improvements, fixtures or similar “vanilla shell” items such as
light fixtures, HVAC equipment, or other fixtures and equipment, including any canopies,
permanently affixed to the Premises.



     21.20 Landlord’s Cooperation. Landlord agrees, upon Tenant’s request, but at no cost
or expense to Landlord, to provide such information as is reasonably necessary to assist Tenant in
procuring any permits or licenses necessary to operate the Premises as a convenience store with gas
facilities or any other permitted use hereunder.



     21.21 Reserved.



35









 





     21.22 Guaranty. The obligations of Tenant under this Lease are guarantied by Susser
Holdings, L.L.C., a Delaware limited liability company (the “Guarantor”), pursuant to that
certain Guaranty between Landlord and Guarantor of even date herewith. A release of Tenant upon an
assignment of this Lease to an entity that meets the net worth requirements set forth in Article
XIV of this Lease or a release of Tenant upon the written agreement of Landlord and Tenant, shall
also operate as a release of Guarantor.



[The remainder of this page is intentionally left blank]




36









 








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



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Signed, sealed and delivered	 	 	 	«BuyerLandlord», «Corp_Info»	 	 
	in the presence of:	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	«Buyer_Sig_Block»	 	 
	 	 	 	 	 	 	«Buyer_corp_info»	 	 
	 	 	 	 	 	 	«sole_member»	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:	 	 	 	 	 	 	 	Name: «Buyer_Name»	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Its: «Buyer_Title»	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Name:	 	 	 	 	 	(CORPORATE SEAL)	 	 
	 

	 	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	“LANDLORD”