HomeMy WebLinkAbout11-4907FILED-CF,
A '
07 THE PFR i k" S ?'.
SKLAR - MARKIND
By: Krista Frankina Fiore
I.D. No. 82382
102 Browning Lane
Building B, Suite 1
Cherry Hill, NJ 08003
File No.: UM 110040
2011 JUN 13 AM 1C: '7'
CUMBERLAND COUN11
PENN'SYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
UNI-MARTS LIQUIDATION TRUST
Plaintiff
VS.
No. 01vo
TERM
CIVIL ACTION
NOOR AKHTER, INC and SAIMA
INTERNATIONAL INC
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013 as
Telephone: 717-249-3166 4d 41?(
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AVISO
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas
en las paginas siguientas, usted tiene veinte (2) dias de plazo al partir de la fecha de la demanda y
la notificaion. Hace falta asentar una comparencia escrita o en persona o con un abogado y
entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la
demanda en contra sya sin previo aviso o notificaion. Ademas, la corte puede decidir a favor del
demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede
perder dinero o sus propiedades u otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL A LA OFICINA
CUY A DIRECION SE ENCUENTRA ESCRITA ABAJO PARA AVERGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone: 717-249-3166
Andrew Sklar (Pa. Bar 65332)
Krista Frankina Fiore (Pa. Bar 82382)
102 Browning Lane, Building B
Suite 1
Cherry Hill, New Jersey 08003
Telephone: (856) 616-8710
Telecopier: (856) 616-8716
Attorney for Uni-Marts Liquidation Trust
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Uni-Marts Liquidation Trust, )
Plaintiff, )
vs. )
Noor Akhter, Inc. and Docket No.
)
Saima International, Inc. )
Defendants. )
1
COMPLAINT
Plaintiff Uni-Marts Liquidation Trust ("Trust"), by its undersigned counsel, sets forth the
following as its Complaint against Noor Akhter, Inc. ("Noor Akhter") and Saima International,
Inc. ("Saima").
1. PARTIES
1. Uni-Marts, LLC ("Uni-Marts") was a limited liability company formed in
Pennsylvania with its headquarters in State College, Pennsylvania. Uni-Marts owned, leased,
and operated convenience stores in Pennsylvania, New York, and Ohio. As discussed further
below, the Trust was formed on May 27, 2010 pursuant to terms of the Second Amended Joint
Plan of Liquidation for Uni-Marts, LLC And Its Affiliated Debtors [Docket No. 1207] (the
1
"Plan"). The Uni-Marts Liquidation Trust is located c/o KDW Restructuring and Liquidation
Services, LLC, as Trustee, 101 Park Avenue, New York, New York, 10178.
2. Defendant, Saima International, Inc. ("Saima") is a corporation formed in
Pennsylvania with its registered address of 1958 Spring Road, Carlisle, Pennsylvania 17013.
3. Defendant, Noor Akhter, Inc. is a corporation formed in Pennsylvania with its
registered business address of 98-100 South 2nd Street, West Fairview, Pennsylvania 17025, and
a registered officer's address of Mohammad P. Akhter, President, 4314 New Hampshire,
Harrisburg, Pennsylvania 17112-22.
II. BACKGROUND
4. On May 29, 2008 (the "Petition Date"), each of the Debtors filed with the Court
their respective voluntary petitions for relief under the Bankruptcy Code commencing the above-
captioned Chapter 11 cases. On May 30, 2008, the Court entered an order authorizing the joint
administration of these Chapter 11 cases [Docket No. 26].
5. On June 9, 2008, the United States Trustee for the District of Delaware appointed
the Official Committee of Unsecured Creditors. No trustee or examiner has been appointed.
6. The Court confirmed the Plan by order dated December 30, 2009 (the
"Confirmation Order") [Docket No. 1425].
7. Section 2.1(mm) of the Plan defines the effective date of the Plan (the "Effective
Date") as follows: "[i]f no stay of the Confirmation Order is in effect, the first Business Day after
(i) the date all of the conditions precedent required under Section 1129(a) of the Bankruptcy
Code to consummate this Plan have been satisfied and (ii) the Debtors have filed a notice with
the Bankruptcy Court identifying the Effective Date."
8. Pursuant to Section 6.10(a) and the execution of the Liquidation Trust Agreement
(as defined in the Plan), the Trust was formed on May 27, 2010.
2
9. In accordance with Section 2.1(mm) of the Plan, the Effective Date of the Plan
occurred on May 28, 2010 (Docket No. 1603).
10. In accordance with Section 6.13 of the Plan, "[t]he Liquidation Trustee [to the
Trust] shall be vested with, retain, and may exclusively enforce and prosecute any claims or
Causes of Action that the Debtors or the Estates may have against any Person or entity...."
III. JURISDICTION AND VENUE
11. This Court has jurisdiction over this proceeding.
12. Venue is proper in this Court.
IV. FACTUAL ALLEGATIONS
13. As of the Petition Date, Uni-Marts directly or indirectly operated 283 convenience
stores in three states. Approximately 104 of these locations were operated by owner operators,
known as dealers, who had purchased the right to operate the convenience stores from Uni-
Marts.
14. Saima International was one of Uni-Marts' dealers, and on August 3, 2005,
entered into a certain Sublease (the "Lease") with Uni-Marts for certain real property and
improvements thereon for Store No. 94255 located at 98 South 2°d Street, West Fairview,
Pennsylvania 17025 through and until September 29, 2017. A true and correct copy of the
Lease is attached hereto as Exhibit A.
15. On August 3, 2005, Saima entered into that certain Fuel Supply Agreement (the
"Fuel Supply Agreement") with Uni-Marts by which Uni-Marts agreed to sell and Saima agreed
to purchase certain quantities of motor fuel products, including a minimum gallon requirement of
189,000 gallons per year (the "Minimum Gallon Requirement"), through and until ten (10) years
from August 3, 2005. A true and correct copy of the Fuel Supply Agreement is attached hereto
as Exhibit B.
3
16. On or about August 2, 2005, Saima also entered into that certain Trademark
License Agreement (the "Trademark Agreement") with Uni-Marts whereby Uni-Marts granted
Saima a license to use certain trademarks and related rights in consideration for $200.00 per
month, through the same term as the Lease, or until September 29, 2017. A true and correct
copy of the Trademark Agreement is attached as Exhibit C.
IT On September 29, 2006, Noor Akhter became one of Uni-Marts' subdealers by
entering into a Sublease (the "Sublease") with Saima, who leased from Uni-Marts certain real
property and improvements thereon for Store No. 94255 located at 98 South 2"d Street, West
Fairview, Pennsylvania 17025 through and until August 13, 2013. Upon signing the Sublease,
Noor Akhter entered into other certain agreements relating to the property (the "Closing
Documents"). By virtue of that certain Closing Notice and Certification, dated September 20,
2006, Noor Akhter was bound and obligated to perform pursuant to the Closing Documents, the
Sublease, Fuel Supply Agreement and Trademark Agreement. A true and correct copy of the
Sublease and Closing Documents are attached hereto as Exhibit D.
18. Notwithstanding the Sublease, Saima remained bound by the terms of the Lease,
Fuel Supply Agreement, and the Trademark Agreement.
19. Upon information and belief, on June 12, 2007, Noor Akhter unilaterally closed
or abandoned Store No. 94255.
20. Accordingly, as of June 12, 2007, Noor Akhter has been in default under
Sublease, Fuel Supply Agreement and Trademark Agreement for the term of the Sublease, or
August 31, 2013, and owes the Trust (i) $58,634.56 for rent and other past due sums ("Sublease
Defaults"), (ii) $4,725.00 for failure to comply with the Minimum Gallon Requirement under the
Fuel Supply Agreement ("Fuel Supply Agreement Defaults") and (iii) $3,000.00 for failure to
4
pay sums due under the Trademark Agreement ("Trademark Defaults", and together with Lease
Defaults and Fuel Supply Agreement Defaults, the "Akhter Defaults").
21. Pursuant to the terms of the Sublease and Lease, Noor Akhter's unilateral closure
or abandonment of Store No. 94255 on June 12, 2007 constitutes a unilateral closure or
abandonment by Saima of Store No. 94255 on even date.
22. Accordingly, as of June 12, 2007, Saima has been in default under Lease, Fuel
Supply Agreement and Trademark Agreement for the term of the Sublease, and owes the Trust
(i) $58,634.56 for rent and other past due sums ("Lease Defaults"), (ii) $4,725.00 for failure to
comply with the Minimum Gallon Requirement under the Fuel Supply Agreement ("Saima Fuel
Supply Agreement Defaults") and (iii) $3,000.00 for failure to pay sums due under the
Trademark Agreement ("Saima Trademark Defaults", and together with Lease Defaults and
Saima Fuel Supply Agreement Defaults, the "Saima Defaults").
23. Store Number 94255 was sold to Quik Pik on or about December 30, 2009.
COUNTI
Breach of Contract - Defendant Noor Akhter
24. The Trust incorporates by reference each of the allegations set forth above in
paragraphs 1 through and including 23 of this Complaint.
25. The Sublease was a valid, enforceable contractual obligation of Defendant Noor
Akhter to Uni-Marts.
26. During the term of the Sublease, Uni-Marts performed all of its obligations under
the Lease.
27. The Sublease Defaults constituted a material breach of the Sublease.
28. Uni-Marts suffered damages as a result of the Sublease Defaults, and as such
Noor Akhter is liable to the Trust in an amount totaling at least $58,634.56.
5
COUNT II
Breach of Contract - Defendant Noor Akhter
29. The Trust incorporates by reference each of the allegations set forth above in
paragraphs 1 through and including 28 of this Complaint.
30. The Fuel Supply Agreement was a valid, enforceable contractual obligation of
Defendant Noor Akhter to Uni-Marts.
31. Uni-Marts performed all of its obligations under the Fuel Supply Agreement.
32. The Fuel Supply Agreement Defaults constituted a material breach of the Fuel
Supply Agreement.
33. Uni-Marts suffered damages as a result of the Fuel Supply Agreement Defaults,
and as such Noor Akhter is liable to the Trust in an amount totaling at least $4,725.00.
COUNT III
Breach of Contract - Defendant Noor Akhter
34. The Trust incorporates by reference each of the allegations set forth above in
paragraphs 1 through and including 33 of this Complaint.
35. The Trademark Agreement was a valid, enforceable contractual obligation of
Defendant Noor Akhter to Uni-Marts.
36. Uni-Marts performed all of its obligations under the Trademark Agreement.
37. The Trademark Defaults constituted a material breach of the Trademark
Agreement.
38. Uni-Marts suffered damages as a result of the Trademark Defaults, and as such
Noor Akhter is liable to the Trust in an amount totaling at least $3,000.00.
6
COUNT IV
Breach of Contract - Defendant Saima
39. The Trust incorporates by reference each of the allegations set forth above in
paragraphs 1 through and including 38 of this Complaint.
40. As a result of the breaches and defaults by Noor Akhter under the Sublease, Fuel
Supply Agreement and Trademark Agreement, Saima owes the trust at least $66,359.56.
41. The Lease, Sublease, and Closing Documents were a valid, enforceable
contractual obligation of Saima to Uni-Marts.
42. Pursuant to the Lease, Sublease and Closing Documents, Saima agreed to be
primarily liable (as well as jointly and severally liable with Noor Akhter) to Uni-Marts for Noor
Akhter's payment and performance obligations under the Sublease, Fuel Supply Agreement, and
Trademark Agreement.
43. Uni-Marts performed all of its obligations under the Lease, Sublease and Closing
Documents.
44. Saima failed or refused to honor the terms of the Lease, Sublease and Closing
Documents, which constituted a material breach of the agreements.
45. Accordingly, Saima is primarily liable, as well as jointly and severally liable with
Saima, to the Trust in an amount totaling at least $66,359.56.
COUNT IV
Attorneys' Fees and Costs
46. The Trust incorporates by reference each of the allegations set forth above in
paragraphs 1 through and including 45 of this Complaint.
47. Pursuant to the Lease, Fuel Supply Agreement, and Trademark Agreement, the
Trust may recover reasonable attorneys' fees and expenses incurred by the Trust as a result of
Saima's Defaults.
7
48. Accordingly, the Trust is entitled to recover its reasonable attorneys' fees and
costs from Saima in an amount to be determined at trial.
V. PRAYER FOR RELIEF
WHEREFORE, the Trust prays for the following relief:
a. On Count I, entry of judgment in favor of the Trust and against Noor Akhter in
the amount of at least $58,634.56 or such other sum as is determined at trial;
b. On Count II, entry of judgment in favor of the Trust and against Noor Akhter in
the amount of at least $4,725.00 or such other sum as is determined at trial;
C. On Count III, entry of judgment in favor of the Trust and against Noor Akhter in
the amount of at least $3,000.00 or such other sum as is determined at trial;
d. On Count IV, entry of judgment in favor of the Trust and against Saima in the
amount of at least $66,359.56 or such other sum as is determined at trial;
e. On Count V, entry of judgment in favor of the Trust and against Defendants for
attorneys' fees and expenses incurred in an amount to be determined at trial; and
f. On all Counts, that the Court award the Trust pre- and post judgment interest and
provide the Trust with such other and further relief as is appropriate.
Dated: June 10, 2011
SKLA -MARKIND
Andrew Sklar (Pa. Bar 65332)
Krista Frankina Fiore (Pa. Bar 82382)
102 Browning Lane, Building B
Suite 1
Cherry Hill, New Jersey 08003
Telephone: (856) 616-8710
Telecopier: (856) 616-8716
Counsel to the Uni-Marts Liquidation Trust
8
VERIFICATION
I, Krista Frankina Fiore, Esquire, of the law firm of Sklar - Markind, hereby state and
verify that my firm is counsel for Plaintiff in this action; that we have reviewed certain
documents and/or other records provided to us by Plaintiff for the filing of a Complaint in
this action; that a substitute Verification executed by an officer or other employee of
Plaintiff will be filed as soon as same is received; and that the Complaint filed herewith is
true and correct to the best of my knowledge, information and belief. The undersigned
understands that the statement made therein are made subject to the penalties of 18 Pa.
C.S. §4904 relating to unsworn falsifications to authorities.
Date: hn 1 1
i
Krista Frankina Fiore, Esquire
File No.: UM 110040
Exhibit A
Site No.: 04255
Location: 98-100 South 2nd Street
West Fairview, PA 17025
County: Cumberland
Prime Lessor: CHRISTOPHER SLIKE
Prime Lease: Lease dated 10/1/2003, as amended.
SUBLEASE
THIS SUBLEASE (this "Sublease") is made as of effV.
St3 2005 (the
"Effective Date"), by and between UNI-MARTS, LLC, a Pennsylv is limited liability company
("Sublessor"), whose address is 477 East Beaver Avenue, State College, Pennsylvania 16801-
5690, and SAIMA INTERNATIONAL, INC., a Pennsylvania corporation ("Sublessee"), whose
address is 2203 Olen Allen Avenue, Apt T-2, Silver Spring, MD 20906.
WPTNES SETH:
Sublessor currently leases the Premises (as defined below) from Prime Lessor (as defined
below). Sublessor and Sublessee desire to enter into a sublease of the entire Premises in
accordance with and pursuant to the terms of this Sublease.
THAT, in consideration of the mutual covenants and agreements herein contained,
Sublessor and Sublessee hereby covenant and agree as follows:
Certain Defined Terms.
The following terms shall have the following meanings for all purposes of this Sublease:
"Additional Rental" has the meaning set forth in Section 6.2.
"Applicable Regulations" has the meaning set forth in Section 15.1.
"Base Annual Rental"means (i) during the first Sublease Year, Forty-Five Thousand, One
Hundred and Forty-Four Dollars ($45,144.00) per annum, and (ii) commencing with the second
Sublease Year, and each and for every Sublease Year thereafter (including the Sublessor Extension
Period if applicable), an amount equal to the lesser of (a) the Base Annual Rental for the
immediately preceding Sublease Year multiplied by one hundred two percent (102%) or (b) the
Base Annual Rental for the immediately preceding Sublease Year multiplied by the CPI
Adjustment, but in no event shall Base Annual Rental decline as a result of this calculation.
826288.11 721 N5 Form 3
( "Base Monthly Rental"means an amount equal to 1/12 of the applicable Base Annual
Rental.
"Business Day" means a day on which Sublessor is open for business other than
Saturday, Sunday or a legal holiday, ending at 5:00 p.m. Philadelphia, Pennsylvania time.
"CPI Adjustment" means a fraction, the numerator of which is CPI-U for the calendar
month two months prior to the calendar month in which the Effective Date occurs and the
denominator of which is the CPI-U for the calendar month which is 14 months prior to the
calendar month in which the Effective Date occurs. (For example, if the Effective Date is June 5,
2004, the first CPI Adjustment calculation would consist of the CPI-U for the month of April
2005 divided by the CPI-U for the month of April 2004.)
"CPI-U" means the "Consumer Price Index--Not Seasonally Adjusted Northeast Urban
Area For All Items For All Urban Consumers (1982-1984=100)," published monthly by the
Bureau of Labor Statistics of the United States Department of Labor. If the foregoing index is
discontinued, a reasonably comparable index published by the Bureau of Labor Statistics of the
United States Department of Labor selected by Sublessor shall be used. If the Bureau of Labor
Statistics shall no longer maintain statistics on the purchasing power of the consumer dollar,
comparable statistics published by a responsible financial periodical or recognized authority
l reasonably selected by the Sublessor shall be used. If the base year "(1982-1984=100)" or other
base year used in computing the CPI-U is changed, the figures used in calculating the CPI
Adjustment shall be changed accordingly, so that all increases in the CPI-U are taken into account
notwithstanding any such change in the base year.
"De Minimis Amounts" shall mean, with respect to any given level of Hazardous
Materials or Regulated Substances, that level or quantity of Hazardous Materials or Regulated
Substances in any form or combination of forms the use, storage or release of which does not
constitute a violation of any Environmental Laws and is customarily employed in the ordinary
course of, or associated with, similar businesses located in the state in which the Premises is
located.
"Default Rate" means 18% per annum or the highest rate permitted by law, whichever is
less.
"Effective Date" shall have the meaning described in Section 2.2.
"Environmental Indemnity Agreement' 'means that certain Environmental Indemnity and
Service Agreement dated the date hereof by and between Sublessor and Sublessee executed in
connection with this Sublease.
`. "Environmental Laws" means any present and future federal, state and local laws,
statutes, ordinances, rules, regulations and the like, as well as common law, relating to Hazardous
326298.11 721/05 2
( Materials, Regulated Substances or USTs and/or the protection of human health or the
environment, by reason of a Release or Threatened Release of Hazardous Materials, Regulated
Substances or USTs or relating to liability for or costs of Remediation or prevention of Releases.
"Environmental Laws" includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations rulings, orders or decrees promulgated pursuant thereto,
and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues:
the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency
Planning and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to
USTs; the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic
Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act;
the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act;
the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors
Appropriation Act. "Environmental Laws" also includes, but is not limited to, any present and
future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as
common law: conditioning transfer. of property upon a negative declaration or other approval of a
Governmental Authority of the environmental condition of the property; requiring notification or
disclosure of Releases or other environmental condition of the Premises to any Governmental
Authority or other person or entity, whether or not in connection with transfer of title to or
interest in property; imposing conditions or requirements relating to Hazardous Materials,
Regulated Substances or USTs in connection with permits or other authorization for lawful
activity; relating to nuisance, trespass or other causes of action related to Hazardous Materials,
Regulated Substances or USTs; relating to the handling and disposal of solid or hazardous waste;
and relating to wrongful death, personal injury, or property or other damage in connection with
the physical condition or use of the Premises by reason of the presence of Hazardous Materials,
Regulated Substances or USTs in, on, under or above the Premises.
"Environmental Liens" has the meaning set forth in Section 15.4.
"Event of Default" has the meaning set forth in Section 17.
"Governmental Authority" means any governmental authority, agency, department,
commission, bureau, board, instrumentality, court or quasi-governmental authority of the United
States, the State or any political subdivision thereof.
"Ground Lease" means all ground leases or underlying leases affecting the Premises that
may be executed by Sublessor, including any such ground lease which may be executed in
connection with a sale/leaseback transaction entered into by Sublessor with respect to the
Premises.
"Ground Lessor" means a lessor under a Ground Lease.
826288.11 712IMS
"Hazardous Materials" means (i) any toxic substance or hazardous waste, substance,
solid waste, or related material, or any pollutant or contaminant; (ii) radon gas, asbestos in any
form which is or could become friable, urea formaldehyde foam insulation, transformers or other
equipment which contains dielectric fluid containing levels of polychlorinated biphenyls in excess
of federal, state or local safety guidelines, whichever are more stringent, or any petroleum
product; (iii) any substance, gas, material or chemical which is or may be defined as or included in
the definition of "hazardous substances," "toxic substances," "hazardous materials," "hazardous
wastes," "regulated substances" or words of similar import under any Environmental Laws; and
(iv) any other chemical, material, gas or substance the exposure to or release of which is or may
be prohibited, limited or regulated by any Governmental Authority that asserts or may assert
jurisdiction over the Premises or the operations or activity at the Premises, or any chemical,
material, gas or substance that does or may pose a hazard to the health and/or safety of the
occupants of the Premises or the owners and/or occupants of property adjacent to or surrounding
the Premises.
"Indemnified Parties" means Sublessor, Prime Lessor, Mortgagee and their directors,
officers, shareholders, partners, members, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns,
including, but not limited to, any successors by merger, consolidation or acquisition of all or a
substantial portion of the assets and business of Sublessor, Prime Lessor or Mortgagee, as
applicable.
"Losses" means any and all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions
in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement
and damages of whatever kind or nature (including, without limitation, reasonable attorneys' fees,
court costs and other costs of defense).
"Mortgage" means any mortgage, leasehold mortgage, deed of trust or leasehold deed of
trust and/or assignment of rents and leases, and/or security agreement and fixture filing executed
by Sublessor for the benefit of a Mortgagee with respect to the Premises, as such instruments
may be amended, restated and/or supplemented from time to time.
"Mortgagee" means any lender which, at any time, holds a Mortgage. The term
Mortgagee shall also be deemed to include Ground Lessors except where the treatment of Ground
Lessors is specifically distinguished from Mortgagees under the provisions of this Sublease.
"Person" means any individual, corporation, partnership, limited liability company, trust,
unincorporated organization, Governmental Authority or any other form of entity.
"Premises" means that certain property situated in the Location identified on page 1 of
this Sublease and legally described in Exhibit A attached hereto, all rights, privileges and
appurtenances associated therewith, and all buildings, fixtures and other improvements
826281.117/21/05 4
"Threatened Release" means a substantial likelihood of a Release which requires action to
prevent or mitigate damage to the soil, surface waters, groundwaters, land, stream sediments,
surface or subsurface strata, ambient air or any other environmental medium comprising or
surrounding the Premises which may result from such Release.
"Uni-Mart Facility" means a retail business consisting of one or more of the following:
convenience store, gasoline station, tobacco store, food service, together with such other ancillary
uses permitted by the Third Party Leases that are not inconsistent with the operations of such
retail businesses.
"UST? means any one or combination of tanks and associated underground piping
systems used in connection with the storage, dispensing and general use of Regulated Substances
at the Premises.
2. Demise; Term; Sublease Year; Renewals
2.1. Demise. Sublessor hereby subleases the Premises to Sublessee, and
Sublessee hereby subleases the Premises from Sublessor, together with all fixtures installed in the
Premises by or for the benefit of Sublessor, and also together with all appurtenances and rights
ancillary to the Premises.
i;. 2.2. Term. The term of this Sublease (the "Sublease Term") shall begin on the
later of (a) the date hereof, or (b) the date that Sublessor receives the Prime Lessor's Consent (as
defined in Section 30.1 of this Sublease), if such consent is required under the Prime Lease (the
"Effective Date"). The Sublease Term shall expire on September 29, 2017, unless sooner
terminated by Sublessor as provided in this Sublease.
2.3. Sublease Year. The first "Sublease Year" of the Term shall commence on
the Effective Date and shall end (a) on the day immediately preceding the first anniversary of the
Effective Date, if the Effective Date is the first day of the month, or (b) on the last day of the
calendar month in which the first anniversary of the Effective Date occurs, if the Effective Date is
any day other than the first day of a calendar month. Each subsequent Sublease Year shall be a
period of twelve months (or such shorter period as remains in the Term), commencing on the day
immediately following the expiration of the prior Sublease Year.
Assignment of Third Party Leases.
Sublessor hereby assigns, transfers and sets over to Sublessee for the Term all right, title
and interest of Sublessor in and to the Third Party Leases, and Sublessee assumes and agrees to
perform all obligations of Sublessor under such Third Party Leases arising and accruing after the
Effective Date and for the balance of the Term.
826288.11 W21/05 6
4. Prime Lease.
4.1. Terms of Sublease Identical With Prime Lease. It is intended that the
terms and conditions of this Sublease shall be identical to the terms and conditions of the Prime
Lease, except to the extent inconsistent with the express terms of this Sublease and except as set
forth in Section 4.2 of this Sublease. Therefore, Sublessor and Sublessee agree that:
4.1.1. each and every term, condition, covenant and agreement of the
Prime Lease is. a term, condition, covenant and agreement of this Sublease, and is incorporated in
this Sublease by reference, except to the extent inconsistent with the express terms of this
Sublease and except as set forth in Section 4.2 of this Sublease;
4.1.2. Sublessee shall perform all obligations and comply with all
terms, conditions, covenants and agreements of Sublessor as tenant under the Prime Lease for the
Sublease Term, except to the extent inconsistent with the express terms of this Sublease and
except as set forth in Section 4.2 of this Sublease; and
4.1.3. the term "Landlord" or "Lessor" (as the case may be) as set
forth in the Prime Lease shall mean Sublessor in this Sublease and the term "Tenant" or "Lessee"
(as the case may be) as set forth in the Prime Lease shall mean Sublessee in this Sublease.
t
4.2. Terms Not Incorporated. Notwithstanding the provisions of Section 4.1
of this Sublease, the following provisions of the Prime Lease are not incorporated in or made part
of this Sublease:
4.2.1. any responsibilities of tenant under the Prime Lease which are
the responsibility of Sublessor under the terms of the Environmental Indemnity Agreement;
4.2.2. any purchase options, rights of first offer or rights of first
refusal granted tenant under the Prime Lease with respect to all or part of the Premises or any
other property of Prime Lessor, if any;
4.2.3. any rights granted tenant under the Prime Lease to lease other
properties of Prime Lessor, if any;
4.2.4. any renewal rights which would serve to extend the term of this
Sublease beyond the Sublease Term, if any;
4.2.5. any provisions which entitle the tenant under the Prime Lease
to share in any income or revenue of the Prime Lessor, if any; and
4.2.6. those provisions, if any, listed on Exhibit C.
826288.11 712IM5 7
( 4.3. Sublease Controls. If there is a conflict between the stated terms and
conditions in this Sublease and those set forth in the Prime Lease, the terms and conditions set
forth in this Sublease shall control.
4.4. Performance To Be Tendered To Prime Lessor. Except as otherwise
provided in this Sublease, Sublessee shall tender performance of its obligations directly to Prime
Lessor so that all of Sublessor's obligations under the Prime Lease accruing during the Sublease
Term shall be fully satisfied and discharged by Sublessee's performance.
4.5. Covenant Against Actions Causing Default Under Prime Lease. Sublessee
shall not do or cause to be done or suffer or permit to be done any act or thing which would
constitute a default under the Prime Lease or which would cause the Prime Lease or any of
Sublessor's rights under the Prime Lease to be cancelled, terminated, forfeited or prejudiced or
which would render Sublessor liable for any damages, fines, claims, penalties, costs or expenses
under the Prime Lease.
5. Performance.
5.1. Sublessor Not Liable For Prime Lessor's Obligations.
5.1.1. Although the terms, conditions, covenants and agreements of
the Prime Lease are incorporated as terms and agreement of this Sublease, Sublessor shall not be
liable to Sublessee for performance or non-performance of obligations of Sublessor under this
Sublease which are also the obligations of Prime Lessor under the Prime Lease (the "Prime
Lessor's Obligations"). It is intended that Sublessee shall look solely to and hold solely
responsible Prime Lessor for the performance of the Prime Lessor's Obligations under the Prime
Lease.
5.1.2. Without limiting the generality of Section 5. 1.1 of this Sublease,
Sublessor shall have no obligation or responsibility for any of the following:
(A) maintenance or repair of the Premises, or the common areas or mechanical systems of the
Property; (B) providing heating, ventilating, air conditioning or any utility service; (C) providing
building services, such as janitorial or security services. Sublessor shall have no liability by
reason of any failure by Prime Lessor to provide any of the foregoing services or to otherwise
perform any of the Prime Lessor's Obligations.
5.2. Failure By Prime Lessor to Perform the Prime Lessor's Obligations. If
Prime Lessor shall fail at any time to perform the Prime Lessor's Obligations, Sublessee shall give
notice thereof to Sublessor. In such event, Sublessor shall use commercially reasonable efforts to
cause Prime Lessor to perform the Prime Lessor's Obligations, but Sublessor shall not be
obligated to incur any cost or expense in so doing.
826298.117/21105 8
request, including such matters as its organization, existence, good standing and finances and
other matters, whether or not similar in kind. At the time of any assignment of this Sublease
I, which is approved by Sublessor, the assignee shall assume all of the obligations of Sublessee
under this Sublease pursuant to Sublessor's standard form of assumption agreement. No such
assignment nor any subletting of the Premises shall relieve Sublessee of its obligations respecting
this Sublease. Any assignment, transfer, conveyance, pledge or mortgage in violation of this
paragraph shall be voidable at the sole option of Sublessor.
10. Waste; Alterations and Improvements.
Sublessee shall not commit actual or constructive waste upon the Premises.
During the Sublease Term, Sublessee shall not alter the exterior, structural, plumbing or electrical
elements of the Premises in any manner without the consent of Sublessor, which consent shall
not be unreasonably withheld or conditioned; provided, however, that Sublessee may undertake
nonstructural alterations to the Premises costing less than $25,000.00 without Sublessor's
consent if the same is permitted under the Prime Lease. If Sublessor's consent is required
hereunder and Sublessor consents to the making of any such alterations, the same shall be made
by Sublessee at Sublessee's sole expense by a licensed contractor and according to plans and
specifications approved by Sublessor and subject to such other conditions as Sublessor shall
require. Any work at any time commenced by Sublessee on the Premises shall be prosecuted
diligently to completion, shall be of good workmanship and materials and shall comply fully with
all the terms of this Sublease. Upon completion of any alterations, Sublessee shall promptly
provide Sublessor with (i) evidence of full payment to all laborers and materialmen contributing
to the alterations, (ii) an architect's certificate certifying the alterations to have been completed in
conformity with the plans and specifications, (iii) a certificate of occupancy (if the alterations are
of such a nature as would require the issuance of a certificate of occupancy), and (iv) any other
documents or information reasonably requested by Sublessor. Sublessee shall execute and file or
record, as appropriate, a "Notice of Non-Responsibility," or any equivalent notice permitted
under applicable law in the State. Any addition to or alteration of the Premises shall be deemed a
part of such Property and belong to Sublessor, and Sublessee shall execute and deliver to
Sublessor such instruments as Sublessor may require to evidence the ownership by Sublessor of
such addition or alteration.
11. Mechanics Liens; Other Encumbrances.
11.1. Obligation to Discharge. In the event any liens of mechanics or
materialmen attributable to Sublessee shall be filed against the Premises or the Property or any
part thereof, Sublessee, at its expense, shall discharge the same by payment or bonding within ten
(10) days after Sublessee has received notice of the filing of such lien.
11.2. Failure to Discharge. If Sublessee shall fail to cause such lien to be bonded
against or to be discharged within such period, then, in addition to any other right or remedy
which Sublessor may have, Sublessor may, but shall not be obligated to, discharge the same either
826188.11 721105 11
by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or
by bonding. Any amount so paid by Sublessor and all costs and expenses incurred by Sublessor
in connection therewith, together with interest at the Overdue Interest Rate from the respective
dates of Sublessor's making of the payment and incurring of the cost and expense, shall constitute
Additional Rent payable by Sublessee under this Sublease and shall be paid by Sublessee to
Sublessor on demand.
11.3. No Consent Implied. Nothing set forth in this Sublease shall be deemed or
construed as (A) a consent or request by Prime Lessor or Sublessor, expressed or implied, by
inference or otherwise, to any contractor, laborer or materialman for the performance of any labor
or the furnishing of any materials for any specific or general improvement, alteration or repair of
or to the Premises or the Property or any part thereof; or (B) giving Sublessee or any other
person, firm or corporation any right to contract for or to perform any labor or furnish any
services or materials that would permit or give rise to a lien against the Premises, the Property or
any part thereof. Neither this Sublease nor any other writing signed by Sublessor or Prime
Lessor shall be construed as evidencing, indicating, or causing an appearance that any erection,
construction, alteration or repair to be done, or caused to be done, by Sublessee is or was for the
immediate use or benefit of Sublessor or Prime Lessor.
12. Additional Covenants of Sublessee. See Exhibit "C".
13. Insurance.
13.1. Sublesseds Insurance. Sublessee, at its sole cost and expense, shall
maintain the following insurance coverages in full force and effect during the Sublease Term:
13.1.1. Insurance against loss, damage or destruction by fire and other
casualty, including theft, vandalism and malicious mischief, flood (if the Premises is in a location
designated by the Federal Emergency Management Administration as a Special Flood Hazard
Area), earthquake (if the Premises is located in an area subject to destructive earthquakes within
recorded history), boiler explosion (if the Premises contains a boiler), plate glass breakage,
sprinkler damage (if the Premises has a sprinkler system), all matters covered by a standard
extended coverage endorsement, all matters covered by a special coverage endorsement commonly
known as an "all risk" endorsement, and such other risks as Sublessor may reasonably require,
insuring the Premises for not less than 100% of its full insurable replacement cost; provided,
however, with respect to theft, vandalism, malicious mischief and plate glass breakage coverage,
Sublessee may elect to self insure such items, provided that Sublessee shall at all times provide
the remaining coverages set forth in this Section 13 with third party insurers complying with the
provisions of this Section 13.
13.1.2. Comprehensive general liability and property damage insurance,
including a products liability clause, covering Sublessor, Mortgagee and Sublessee against bodily
injury liability, property damage liability and automobile bodily injury and property damage
826218.11 721/05 12
( liability, including without limitation any liability arising out of the ownership, maintenance,
repair, condition or operation of the Premises or adjoining ways, streets or sidewalks and, if
applicable, insurance covering Sublessor, Mortgagee and Sublessee against liability arising from
the sale of liquor, beer or wine on the Premises. Such insurance policy or policies shall contain a
broad form contractual liability endorsement under which the insurer agrees to insure Sublessee's
obligations under Section 19 hereof to the extent insurable, and a "severability of interest" clause
or endorsement which precludes the insurer from denying the claim of Sublessee, Sublessor or
Mortgagee because of the negligence or other acts of the other, shall be in amounts of not less
than $1,000,000.00 per injury and occurrence with respect to any insured liability, whether for
personal injury or property damage, or such higher limits as Sublessor may reasonably require
from time to time, and shall be of form and substance satisfactory to Sublessor.
13.1.3. During the period of any construction, renovation or alteration
of the improvements, a builder's all risk insurance policy in non-reporting form for the full
replacement cost of any improvements under construction, renovation or alteration.
13.1.4. State Worker's compensation insurance in the statutorily
mandated limits, employer's liability insurance with limits not less than $500,000 or such greater
amount as Sublessor may from time to time require and such other insurance as may be necessary
to comply with applicable laws.
13.1.5. Such other insurance with respect to the Premises and in such
amounts as Sublessor may require from time to time against such insurable hazards or risks which
at the time in question are commonly insured against in the case of property similar to, or whose
use is similar to the use of, the Premises.
13.1.6. such other insurance in forms and amounts as may be required
by the Prime Lease or as may be required by Sublessor or Prime Lessor from time to time.
13.2. Policy Rec?irements.
13.2.1. Each policy of insurance required to be maintained by Sublessee
shall:
13.2.1.1. Be in form reasonably acceptable to Sublessor;
13.2.1.2. Be issued by a company or companies authorized to
engage in the business of issuing such policies in the
State and reasonably acceptable to Sublessor;
13.2.1.3. Provide for a waiver of subrogation by the insurer as to
claims against Sublessor, its employees and agents and
provide that such insurance cannot be unreasonably
816288.1 I NUNS 13
cancelled, invalidated or suspended on account of the
conduct of Sublessee, its officers, directors, employees
or agents;
13.2.1.4. Provide that any "no other insurance" clause in the
insurance policy shall exclude any policies of insurance
maintained by Sublessor and that the insurance policy
shall not be brought into contribution with insurance
maintained by Sublessor;
13.2.1.5. Contain a standard without contribution mortgage
clause endorsement in favor of any lender designated
by Sublessor or Mortgagee;
13.2.1.6. Provide that the policy of insurance shall not be
terminated, cancelled or substantially modified without
at least thirty (30) days' prior written notice to
Sublessor, Mortgagee and to any lender covered by any
standard mortgage clause endorsement;
13.2.1.7. Provide that the insurer shall not have the option to
restore the applicable Premises if Sublessor elects to
terminate this Sublease in accordance with the terms
hereof;
13.2.1.8. Be issued by insurance companies licensed to do
business in the States and which are rated A:VI or
better by Best's Insurance Guide or are otherwise
approved by Sublessor; and
13.2.1.9. Provide that the insurer shall not deny a claim because
of the negligence of Sublessee, anyone acting for
Sublessee or any tenant or other occupant of the
Premises.
It is expressly understood and agreed that the foregoing minimum limits of
insurance coverage shall not limit the liability of Sublessee for its acts or omissions as provided in
this Sublease. All insurance policies (with the exception of worker's compensation insurance to
the extent not available under statutory law) shall designate Sublessor and Mortgagee as
additional insureds as their interests may appear and shall be payable as set forth in Section 21
i hereof. All such policies shall be written as primary policies, with deductibles not to exceed 10%
of the amount of coverage. Any other policies, including any policy now or hereafter carried by
926286.11 VIM 14
Sublessor or Mortgagee, shall serve as excess coverage. Sublessee shall procure policies for all
insurance for periods of not less than one year and shall provide to Sublessor and Mortgagee
certificates of insurance or, upon Sublessor's request, duplicate originals of insurance policies
evidencing that insurance satisfying the requirements of this Sublease is in effect at all times. If
requested by Sublessor (but not more often than once in any two year period), Sublessee shall
have the full insurable replacement cost of the improvements determined by an MAI licensed
appraiser satisfactory to Sublessor, and Sublessee shall deliver such determination to Sublessor.
Alternatively, Sublessor may require that inflation guard coverage be provided.
13.3. Delivery of Certificates; Failure to Maintain Insurance.
13.3.1. Upon the execution of this Sublease and within ten (10) days
prior to the expiration of each policy required under Section 13. 1, Sublessee shall deliver to
Sublessor certificates evidencing the foregoing insurance or renewal thereof, as the case may be.
13.3.2. If Sublessee shall fail, refuse or neglect to obtain or to maintain
any insurance that it is required to provide or to furnish Sublessor with satisfactory evidence of
coverage on any such policy, Sublessor shall have the right to purchase such insurance twenty-
four (24) hours after it has provided Sublessee with telephonic notice that it intends to do so
unless within such twenty-four (24) hour period, Sublessee furnishes Sublessor with evidence
that Sublessee has procured such insurance. Sublessee shall reimburse Sublessor for all such
payments made by Sublessor, together with interest thereon at the Overdue Interest Rate from
the date paid by Sublessor, within ten (10) days after Sublessee is billed therefor.
14. Indemnification.
Sublessee shall indemnify, protect, defend and hold harmless each of the
Indemnified Parties from and against any and all Losses (excluding Losses suffered by an
Indemnified Party arising out of such Indemnified Party's gross negligence or willful misconduct)
caused by, incurred or resulting from Sublessee's operations of or relating in any manner to the
Premises, or from any breach of, default under or failure to perform any term or provision of this
agreement by Sublessee, its officers, employees, agents or other persons. It is expressly
understood and agreed that Sublessee's obligations under this Section shall survive the expiration
or earlier termination of this Sublease for any reason.
15. Compliance With Laws, Restrictions, Covenants and Encumbrances.
15.1. Compliance. Sublessee's use and occupation of the Premises, and the
condition thereof, shall, at Sublessee's sole cost and expense, comply fully with (i) all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits, orders and approvals of each
Governmental Authority having jurisdiction over the Premises, including, without limitation, all
health, building, fire, safety and other codes, ordinances and requirements and all applicable
standards of the National Board of Fire Underwriters and all policies or rules of common law, in
826298.117/21/05 15
each case, as amended, and any judicial or administrative interpretation thereof, including any
judicial order, consent, decree or judgment applicable to Sublessee (collectively, the "Applicable
Regulations"), and (ii) all restrictions, covenants and encumbrances of record with respect to the
Premises, except where such noncompliance will not have a Material Adverse Effect.
15.2. Insurance Rates. Sublessee will not permit any act or condition to exist on
or about the Premises which will increase any insurance rate thereon, except when such acts are
required in the normal course of its business and Sublessee shall pay for such increase.
15.3. ADA. Without limiting the generality of the other provisions of this
Section, Sublessee agrees that it shall be responsible for complying in all respects with the
Americans with Disabilities Act of 1990, as such act may be amended from time to time, and all
regulations promulgated thereunder, as it affects the Premises. Sublessee agrees that it will
defend, indemnify and hold harmless the Indemnified Parties from and against any and all Losses
caused by, incurred or resulting from Sublessee's failure to comply with its obligations under this
Section.
15.4. Environmental.
15.4.1. Sublessee covenants to Sublessor during the Sublease Term that:
(i) all uses and operations on or of the Premises, whether by Sublessee or any other person or
entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) there shall be no Releases in, on, under or from the Premises, except in De Minimis Amounts;
(iii) there shall be no Hazardous Materials in, on, or under the Premises, except in De Minimis
Amounts; (iv) Sublessee shall keep the Premises free and clear of all liens and other encumbrances
imposed pursuant to any Environmental Law, whether due to any act or omission of Sublessee or
any other person or entity (the "Environmental Liens"); (v) Sublessee shall, at its sole cost and
expense, fully and expeditiously cooperate in all activities pursuant to Subsection (1) below,
including but not limited to providing all relevant information and making knowledgeable persons
available for interviews; (vi) Sublessee shall, at its sole cost and expense, perform any
environmental site assessment or other investigation of environmental conditions in connection
with the Premises as may be reasonably requested by Sublessor (including but not limited to
sampling, testing and analysis of soil, water, air, building materials and other materials and
substances whether solid, liquid or gas), and share with Sublessor the reports and other results
thereof, and Sublessor and the other Indemnified Parties shall be entitled to rely on such reports
and other results thereof; (vii) subject to the provisions of the Environmental Indemnity
Agreement, Sublessee shall, at its sole cost and expense, comply with all reasonable written
requests of Sublessor to (1) reasonably effectuate Remediation of any condition (including but
not limited to a Release) in, on, under or from the Premises; (2) comply with any Environmental
Law; (3) comply with any directive from any Governmental Authority; and (4) take any other
reasonable action necessary or appropriate for protection of human health or the environment;
(viii) Sublessee shall not do or allow any tenant or other user of the Premises to do any act that
materially increases the dangers to human health or the environment, poses an unreasonable risk
$26299.11 MIME 16
of harm to any person or entity (whether on or off the Premises), impairs or may impair the
value of the Premises, is contrary to any requirement of any insurer, constitutes a public or
private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement
applicable to the Premises; and (ix) Sublessee shall immediately notify Sublessor in writing of (A)
any presence of Releases or Threatened Releases in, on, under, from or migrating towards the
Premises; (B) any non-compliance with any Environmental Laws related in any way to the
Premises; (C) any actual or potential Environmental Lien; (D) any required or proposed
Remediation of environmental conditions relating to the Premises; and (E) any written or oral
notice or other communication which Sublessee becomes aware from any source whatsoever
(including but not limited to a Governmental Authority) relating in any way to Hazardous
Materials, Regulated Substances or USTs or Remediation thereof, possible liability of any person
or entity pursuant to any Environmental Law, other environmental conditions in connection with
the Premises, or any actual or potential administrative or judicial proceedings in connection with
anything referred to in this Section.
15.4.2. Sublessor, Mortgagee and any other person or entity designated
by Sublessor, including but not limited to any receiver, any representative of a Governmental
Authority, and any environmental consultant, shall have the right, but not the obligation, to enter
upon the Premises after at least 24 hours prior telephonic notice at all reasonable times
(including, without limitation, in connection with the exercise of any remedies or rights set forth
r in this Sublease or a Mortgage to assess any and all aspects of the environmental condition of the
Premises and its use, including but not limited to conducting any environmental assessment or
audit (the scope of which shall be determined in Sublessor's sole and absolute discretion) and
taking samples of soil, groundwater or other water, air, or building materials, and conducting other
invasive testing. Sublessee shall cooperate with and provide access to Sublessor, Mortgagee and
any other person or entity designated by Sublessor; provided, however, the foregoing shall take
reasonable steps so as to not unreasonably interfere with Sublessee's business operations. Any
such assessment or investigation shall be at Sublessee's sole cost and expense.
15.4.3. Except as otherwise provided in the Environmental Indemnity
Agreement, Sublessee shall, at its sole cost and expense, protect, defend, indemnify, release and
hold harmless the Indemnified Parties from and against any and all Losses (excluding Losses
arising out of Sublessor's gross negligence or willful misconduct) and costs of Remediation
(whether or not performed voluntarily), engineers' fees, environmental consultants' fees, and
costs of investigation (including but not limited to sampling, testing, and analysis of soil, water,
air, building materials and other materials and substances whether solid, liquid or gas) imposed
upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising
out of or in any way relating to any one or more of the following: (i) any presence of any
Hazardous Materials, Regulated Substances or USTs in, on, above, or under the Premises arising
or occurring on or after the Effective Date; (ii) any Release or Threatened Release in, on, above,
under or from the Premises arising or occurring on or after the Effective Date; (iii) any activity by
Sublessee, any person or entity affiliated with Sublessee or any tenant or other user of the
Premises in connection with any actual, proposed or threatened use, treatment, storage, holding,
926288.11 7/21M5 17
existence, disposition or other Release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or transportation to or from
the Premises of any Hazardous Materials, Regulated Substances or USTs at any time located in,
under, on or above the Premises; (iv) any activity by Sublessee, any person or entity affiliated
with Sublessee or any tenant or other user of the Premises in connection with any actual or
proposed Remediation of any Hazardous Materials, Regulated Substances or USTs at any time
located in, under, on or above the Premises, whether or not such Remediation is voluntary or
pursuant to court or administrative order, including but not limited to any removal, remedial or
corrective action; (v) any actual or threatened non-compliance or violations of any Environmental
Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or
operations thereon arising or occurring on or after the Effective Date, including but not limited to
any failure by Sublessee, any person or entity affiliated with Sublessee or any tenant or other
user of the Premises to comply with any order of any Governmental Authority in connection
with any Environmental Laws on or after the Effective Date; (vi) the imposition, recording or
filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the
Premises as the result of any Release or Threatened Release in, on, above, under or from the
Premises arising or occurring on or after the Effective Date; (vii) any administrative processes or
proceedings or judicial proceedings in any way connected with any matter addressed in this
Section; (viii) any actual or threatened injury to, destruction of or loss of natural resources in any
way connected with the Premises, including but not limited to costs to investigate and assess
such injury, destruction or loss as a result of any Release or Threatened Release in, on, above,
` under or from the Premises arising or occurring on or after the Effective Date; (ix) any acts of
Sublessee or any other tenant, subtenant or users of the Premises in arranging for disposal or
treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous
Materials, Regulated Substances or USTs owned or possessed by such Sublessee or such tenant,
subtenant or users, at any facility or incineration vessel owned or operated by another person or
entity and containing such or similar Hazardous Materials, Regulated Substances or USTs; (x)
any acts of Sublessee or any other tenant, subtenant or users of the Premises, in accepting any
Hazardous Materials, Regulated Substances or USTs for transport to disposal or treatment
facilities, incineration vessels or sites selected by Sublessee or such tenant, subtenant or users,
from which there is a Release, or a Threatened Release of any Hazardous Material or Regulated
Substances which causes the incurrence of costs for Remediation; (xi) any personal injury,
wrongful death, or property damage relating to environmental matters arising under any statutory
or common law or tort law theory, including but not limited to damages assessed for the
maintenance of a private or public nuisance or for the conducting of an abnormally dangerous
activity on or near the Premises, as a result of any Release or Threatened Release in, on, above,
under or from the Premises arising or occurring on or after the Effective Date; and (xii) any
misrepresentation or inaccuracy in any representation or warranty or material breach or failure to
perform any covenants or other obligations pursuant to this Section.
15.4.4. In addition to the other requirements of this Section, Sublessee
shall, at all times throughout the Sublease Term, comply with all Applicable Regulations.
826288.11 721/05 18
15.4.5. In the event of a conflict between the provisions of the
Environmental Indemnity Agreement and this Sublease, the Environmental Indemnity Agreement
shall prevail.
15.4.6. The obligations of Sublessee under this Section are in addition to
any obligations of tenant respecting environmental conditions set out in the Prime Lease (except
as otherwise provided in the Environmental Indemnity Agreement).
15.4.7. The obligations and rights and remedies of Sublessor and
Sublessee set forth in this Subsection shall survive the termination, expiration and/or release of
this Sublease.
16. Surrender; Holdover.
16.1. Condition Upon Surrender. At the expiration or earlier termination of the
Sublease Term, Sublessee shall promptly surrender possession of the Premises in the condition
required by this Sublease and the Prime Lease.
16.2. Holdover. If Sublessee retains possession of the Premises or any part
thereof after the termination of this Sublease by expiration of the Sublease Term or otherwise,
Sublessee shall pay Sublessor (A) an amount, calculated on a per diem basis for each day of such
` unlawful retention, equal to the greater of (i) twice the Fixed Rent in effect immediately prior to
the expiration or earlier termination of the Sublease Term, or (ii) the market rental for the
Premises, as determined by Sublessor, for the time Sublessee thus remains in possession, plus, in
each case, all Additional Rent payable hereunder, and (B) all damages, costs and expenses
sustained by Sublessor by reason of Sublessee's holding over. All of Sublessee's obligations with
respect to the use, occupancy and maintenance of the Premises shall continue during such period
of retention; however, neither the compliance with such obligations nor the payment of the
amounts set forth above in this Section shall create any right in Sublessee to continue in
possession of the Premises or limit any rights or remedies of Sublessor resulting from such
holdover.
17. Default of Sublessee.
17.1. Defaults Enumerated. It shall be a default under this Sublease (an "Event
of Default") if:
17.1.1. Sublessee fails to pay any installment of Rent or other sum due
under this Sublease when the same is due and payable;
17.1.2. Sublessee fails to observe or perform any other covenant or
agreement of Sublessee contained in this Sublease (including, without limitation, the covenants
and agreements incorporated from the Prime Lease by reference, pursuant to Section 4 of this
826288.11 7/21105 19
( Sublease) and such failure continues after written notice given by or on behalf of Sublessor to
Sublessee for more than fifteen (15) days and such additional time, if any, as is reasonably
necessary to cure such failure, provided Sublessee commences to cure such failure within such
fifteen-day period and diligently thereafter prosecutes such cure to completion; or
17.1.3. Sublessee does or causes to be done or suffers or permits to be
done any act or thing which would constitute a default under the Prime Lease or which would
cause the Prime Lease or any of Sublessor's rights under the Prime Lease to be cancelled,
terminated, forfeited or prejudiced or which would render Sublessor liable for any damages, fines,
claims, penalties, costs or expenses under the Prime Lease; or
17.1.4. Sublessee vacates or abandons the Premises except as permitted
by this Sublease; or
17.1.5. Sublessee uses or occupies the Premises other than as permitted
under this Sublease; or
17.1.6. Sublessee assigns this Sublease or subleases all or any portion of
the Premises, or purports to assign this Sublease or sublease all or any portion of the Premises
without the prior written consent of Sublessor; or
17.1.7. Sublessee files a petition commencing a voluntary case, or has
filed against it a petition commencing an involuntary case, under the Federal Bankruptcy Code as
now or hereafter in effect, or under any similar law, or files or has filed against it a petition or
answer in bankruptcy or for reorganization or for an arrangement pursuant to any state
bankruptcy law or any similar state law, and, in the case of any such involuntary action, such
action shall not be dismissed within sixty (60) days after the filing thereof, or Sublessee consents
or acquiesces in the filing thereof, or
17.1.8. a custodian, receiver, trustee or liquidator of Sublessee or of all
or substantially all of Sublessee's property or of the Premises shall be appointed in any
proceedings brought by or against Sublessee; or
17.1.9. Sublessee shall generally not pay Sublessee's debts as such
debts become due, or shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due;
17.1.10. a default on the part of Sublessee shall occur under any loan
agreement, contract or other agreement pursuant to which Sublessee has granted to a third party a
security interest in any property of Sublessee located at the Premises or used in connection with
the operation of Sublessee's business at the Premises; or
826285.11 7/21105 20
17.1.11. a default on the part of Sublessee or any Affilate of Sublessee
shall occur under any lease or sublease pursuant to which such party leases or subleases any
other property from Sublessor or any Affilate of Sublessor.
17.2. Grace Period Provisions. The notice and grace period provision in
Section 17.1.2 above shall not apply to the Events of Default referred to in Sections 17. and
17.1.3 through 17.1.11 inclusive.
18. Remedies.
18.1. Upon the occurrence of an Event of Default, with or without notice or
demand, except the notice prior to default required under certain circumstances by Subsection
17.1.2 above or such other notice as may be required by statute and cannot be waived by
Sublessee (all other notices being hereby waived), Sublessor shall be entitled to exercise, at its
option, concurrently, successively or in any combination, all remedies available at law or in
equity including, without limitation, all remedies of landlord set out in the Prime Lease as well as
any one or more of the following:
18.1.1. To terminate this Sublease, whereupon Sublessee's right to
possession of the Premises shall cease and this Sublease, except as to Sublessee's liability, shall
be terminated.
18.1.2. To reenter and take possession of the Premises, any or all
personal property or fixtures of Sublessee upon the Premises and, to the extent permissible, area
development agreements, permits and other rights or privileges of Sublessee pertaining to the use
and operation of the Premises and to expel Sublessee and those claiming under or through
Sublessee, without being deemed guilty in any manner of trespass or becoming liable for any loss
or damage resulting therefrom, without resort to legal or judicial process, procedure or action. No
notice from Sublessor hereunder or under a forcible entry and detainer statute or similar law shall
constitute an election by Sublessor to terminate this Sublease unless such notice specifically so
states. If Sublessee shall, after default, voluntarily give up possession of the Premises to
Sublessor, deliver to Sublessor or its agents the keys to the Premises, or both, such actions shall
be deemed to be in compliance with Sublessor's rights and the acceptance thereof by Sublessor or
its agents shall not be deemed to constitute a termination of this Sublease. Sublessor reserves the
right following any reentry and/or reletting to exercise its right to terminate this Sublease by
giving Sublessee written notice thereof, in which event this Sublease will terminate as specified in
said notice.
18.1.3. To seize all personal property and fixtures of Sublessee upon
the Premises which Sublessee owns or in which it has an interest, in which Sublessor shall have a
landlord's lien an d/or security interest, and to dispose thereof in accordance with the laws
prevailing at the time and place of such seizure or to remove all or any portion of such property
and cause the same to be stored in a public warehouse or elsewhere at Sublessee's sole expense,
926US.11 7121105 21
without becoming liable for any loss or damage resulting therefrom and without resorting to legal
or judicial process, procedure or action.
18.1.4. To bring an action against Sublessee for any damages sustained
by Sublessor or any equitable relief available to Sublessor.
18.1.5. To relet the Premises or any part thereof for such term or terms
(including a term which extends beyond the original Sublease Tenn), at such rentals and upon
such other terms as Sublessor, in its sole discretion, may determine, with all proceeds received
from such reletting being applied to the rental and other sums due from Sublessee in such order as
Sublessor, may, in it sole discretion, determine, which other sums include, without limitation, all
repossession costs, brokerage commissions, reasonable attorneys' fees and expenses, employee
expenses, alteration, remodeling and repair costs and expenses of preparing for such reletting.
Sublessor shall have no obligation to relet the Premises or any part thereof and shall in no event
be liable for refusal or failure to relet the Premises or any part thereof, or, in the event of any
such reletting, for refusal or failure to collect any rent due upon such reletting, and no such refusal
or failure shall operate to relieve Sublessee of any liability under this Sublease or otherwise to
affect any such liability. Sublessor reserves the right following any such reentry and/or reletting
to exercise its right to terminate this Sublease by giving Sublessee written notice thereof, in which
event this Sublease will terminate as specified in said notice.
18.1.6. To accelerate and recover from Sublessee all rent and other
monetary sums due and owing and scheduled to become due and owing under this Sublease both
before and after the date of such breach for the entire original scheduled Sublease Term.
18.1.7. To recover from Sublessee all costs and expenses, including
reasonable attorneys' fees, court costs, expert witness fees, costs of tests and analyses, travel and
accommodation expenses, deposition and trial transcripts, copies and other similar costs and fees,
paid or incurred by Sublessor as a result of such breach, regardless of whether or not legal
proceedings are actually commenced.
18.1.8. To immediately or at any time thereafter, and with or without
notice, at Sublessor's sole option but without any obligation to do so, correct such breach or
default and charge Sublessee all costs and expenses incurred by Sublessor therein. Any sum or
sums so paid by Sublessor, together with interest at the Default Rate, shall be deemed to be
additional rent hereunder and shall be immediately due from Sublessee to Sublessor. Any such
acts by Sublessor in correcting Sublessee's breaches or defaults hereunder shall not be deemed to
cure said breaches or defaults or constitute any waiver of Sublessor's right to exercise any or all
remedies set forth herein. In the event that the Prime Lease or a Mortgage or any other loan
document secured by a Mortgage shall contain a cure period shorter than that set forth in this
Sublease, then Sublessor shall be entitled to exercise the rights contained in this Subsection prior
816268.11 V2 1,05
22
to the expiration of such shorter cure period so as to avoid default under the Prime Lease or such
Mortgage or other loan document.
18.1.9. To immediately or at any time thereafter, and with or without
notice, except as required herein, set off any money of Sublessee held by Sublessor under this
Sublease against any sum owing by Sublessee hereunder.
18.1.10. To seek any equitable relief available to Sublessor, including,
without limitation, the right of specific performance.
18.2. In the event that the Premises is located in Pennsylvania, the provisions of
this Subsection 18.2 shall apply:
THE FOLLOWING PARAGRAPHS SET FORTH WARRANTS OF
ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT. IN
GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS
JUDGMENTS AGAINST TENANT, TENANT HEREBY KNOWINGLY,
INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES
ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR
NOTICES AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES
AND THE COMMONWEALTH OF PENNSYLVANIA.
CONFESSION OF JUDGMENT FOR RENT. TENANT IRREVOCABLY
AUTHORIZES AND EMPOWERS THE PROTHONOTARY AND CLERK
OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST TENANT FOR SUCH RENT AND
OTHER SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS
SUBLEASE, WITHOUT STAY OF EXECUTION AND WITH AN
ATTORNEY'S COLLECTION FEE OF FIVE PERCENT (5%) OF THE
AMOUNT DUE (BUT NOT LESS THAN $5,000.00), WHICH IS
REASONABLE AS AN ATTORNEY'S FEE. TO THE EXTENT PERMITTED
BY LAW, TENANT RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF
A VERIFIED COPY OF THIS SUBLEASE IS FILED, IT SHALL NOT BE
NECESSARY TO FILE THE ORIGINAL SUBLEASE. THE AUTHORITY
AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
TENANT SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE
THEREOF AND MAY BE CONFESSED AS OFTEN AS ANY EVENT OF
DEFAULT OCCURS. SUCH AUTHORITY MAY BE EXERCISED DURING
OR AFTER THE EXPIRATION OF THE SUBLEASE TERM AND/OR
DURING OR AFTER THE EXPIRATION OF ANY EXTENDED OR
RENEWAL TERM.
82e2a8.I I 7airo5 23
CONFESSION OF JUDGMENT FOR POSSESSION. TENANT
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY
AND CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO
APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT FOR
POSSESSION OF THE PREMISES, WITHOUT STAY OF EXECUTION. TO
THE EXTENT PERMITTED BY LAW, TENANT RELEASES ALL ERRORS
IN SUCH PROCEEDINGS. IF A VERIFIED COPY OF THIS SUBLEASE IS
FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL
SUBLEASE. THE AUTHORITY AND POWER TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST TENANT SHALL NOT BE
EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE
CONFESSED AS OFTEN AS ANY EVENT OF DEFAULT OCCURS. SUCH
AUTHORITY MAY BE EXERCISED DURING OR AFTER THE
EXPIRATION OF THE SUBLEASE TERM AND/OR DURING OR AFTER
THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM. IF SUCH
PROCEEDING IS TERMINATED AND POSSESSION OF THE PREMISES
REMAINS IN OR IS RESTORED TO TENANT, SUBLESSOR SHALL HAVE
THE RIGHT FOR THE SAME EVENT OF DEFAULT AND UPON ANY
SUBSEQUENT EVENT OR EVENTS OF DEFAULT, OR UPON THE
TERMINATION OF THIS SUBLEASE UNDER ANY OF THE TERMS OF
< THIS SUBLEASE, TO BRING ONE OR MORE FURTHER ACTION OR
ACTIONS TO RECOVER POSSESSION OF THE PREMISES AND CONFESS
JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES
AS HEREINABOVE PROVIDED.
REPRESENTATIONS. TENANT HEREBY REPRESENTS THAT (A)
TENANT IS KNOWLEDGEABLE IN BUSINESS MATTERS; (B) THIS
SUBLEASE IS FOR BUSINESS OR COMMERCIAL PURPOSES ONLY AND
NOT FOR PERSONAL OR RESIDENTIAL PURPOSES, AND (C) TENANT
HAS FULLY REVIEWED THE AFORESAID WARRANTS OF ATTORNEY
TO CONFESS JUDGMENT WITH ITS OWN COUNSEL AND
UNDERSTANDS THAT IT IS WAIVING CERTAIN RIGHTS IT WOULD
OTHERWISE POSSESS.
18.3. All powers and remedies given by this Section to Sublessor, subject to
applicable law, shall be cumulative and not exclusive of one another or of any other right or
remedy or of any other powers and remedies available to Sublessor under this Sublease, by
judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements of Sublessee contained in this Sublease, and no delay or omission of Sublessor to
exercise any right or power accruing upon the occurrence of any Event of Default shall impair
any other or subsequent Event of Default or impair any rights or remedies consequent thereto.
Every power and remedy given by this Section or by law to Sublessor may be exercised from
time to time, and as often as may be deemed expedient, by Sublessor, subject at all times to
926219.11 VMS
24
Sublessor's right in its sole judgment to discontinue any work commenced by Sublessor or change
any course of action undertaken by Sublessor.
19. Provisions Concerning Remedies.
19.1. Waiver of Landlord and Tenant Act Notices. If proceedings shall be
commenced by Sublessor to recover possession under the Acts of Assembly and Rules of Civil
Procedure, either at the end of the Sublease Term or upon the earlier termination of this Sublease,
or for non-payment of Rent or any other reason, Sublessee specifically waives the right to the
notices required by the Landlord and Tenant Act of 1951, as the same may be amended, and
agrees that five (5) days' notice shall be sufficient in all cases.
19.2. Survival of Sublessee's Obl' tions. No expiration or termination of this
Sublease pursuant to Section 18.1 above or by operation of law or otherwise, and no
repossession of the Premises or any part thereof pursuant to Sections 18.1 or 18.2 above or
otherwise shall relieve Sublessee of its liabilities and obligations under this Sublease, all of which
shall survive such expiration, termination or repossession, and Sublessor may, at its option, sue
for and collect all Rent and other charges due hereunder at any time as and when such charges
accrue.
19.3. Injunction: Other Remedies. In the event of breach or threatened breach
by Sublessee of any provision of this Sublease, Sublessor shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity in addition to other remedies provided
for in this Sublease.
19.4. Waiver of Redemption. Sublessee hereby expressly waives any and all
rights of redemption granted by or under any present or future law in the event this Sublease is
terminated, or in the event of Sublessor obtaining possession of the Premises, or in the event
Sublessee is evicted or dispossessed for any cause, by reason of violation by Sublessee of any of
the provisions of this Sublease.
19.5. Rights Cumulative. No right or remedy conferred upon or reserved to
Sublessor in this Sublease is intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and in addition to every other right or remedy given in
this Sublease or now or hereafter existing at law or in equity or by statute.
19.6. Expenses. In the event that Sublessor commences suit for the
repossession of the Premises, for the recovery of Rent or any other amount due under the
provisions of this Sublease, or because of the breach of any other covenant of Sublessee in this
Sublease, Sublessee shall pay Sublessor all expenses incurred in connection therewith, including
reasonable attorneys' fees.
976289.11 MIMS 25
i 19.7. Waivers. No waiver by Sublessor of any breach by Sublessee of any
obligations, agreements or covenants in this Sublease shall be a waiver of any subsequent breach
or of any obligation, agreement or covenant, nor shall any forbearance by Sublessor to seek a
remedy for any breach by Sublessee be a waiver of any rights and remedies with respect to such
or any subsequent breach.
19.8. WAIVER OF JURY TRIAL. SUBLESSEE HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
SUBLESSOR ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS SUBLEASE, THE RELATIONSHIP OF SUBLESSOR AND SUBLESSEE,
SUBLESSEE'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY
OR DAMAGE, OR ANY OTHER REMEDY WITH RESPECT THERETO.
20. Security Deposit.
20.1. Amount. Simultaneously with the execution of this Sublease, Sublessee
shall deposit the sum of N/A DOLLARS ($ ) with Sublessor to
secure Sublessee's performance of its obligations under this Sublease (the "Security Deposit").
20.2. No Interest. Sublessee shall receive no interest on the Security Deposit.
Sublessor may commingle the Security Deposit with other moneys of Sublessor.
i20.3. Application. Upon the occurrence of an Event of Default, Sublessor may,
without prejudice to Sublessor's other remedies, apply part or all of the Security Deposit (A) to
cure the default, in whole or in part, and (B) to any losses or damages suffered by Sublessor by
reason of such default. If Sublessor so applies part or all of the Security Deposit, Sublessee shall
within ten (10) days after written demand, pay Sublessor the amount necessary to restore the
Security Deposit to its original amount.
20.4. Transfer of Sublessor's Interest In Sublease. In the event of a sale,
assignment or other transfer of Sublessor's interest in this Sublease, Sublessor shat( have the right
to transfer the Security Deposit to the purchaser, assignee or transferee. Upon such transfer,
Sublessee shall look only to the new sublessor for the return of the Security Deposit and
Sublessor shall be released from all liability for the return of the Security Deposit.
20.5. Return of Security Deposit. Any part of the Security Deposit not used
by Sublessor shall be returned to Sublessee upon the latest to occur of (A) the expiration of the
Sublease Term; (B) the surrender of the Premises by Sublessee in accordance with the terms of
the Sublease; and (C) the computation of all Additional Rent by Sublessor and payment by
Sublessee.
826n8.1 17121/05 26
21. Quiet Enjoyment.
Subject to the terms and conditions of this Sublease, Sublessor warrants to
Sublessee that it will take no action to disturb the quiet enjoyment of Sublessee for so long as
Sublessee performs all obligations of the sublessee under this Sublease. Sublessor makes no
warranty respecting action by any other party, including, without limitation, Prime Lessor.
22. Mortgage, Subordination, Nondisturbance and Attornment.
22.1. Sublessor's interest in this Sublease and/or the Premises shall not be
subordinate to any encumbrances placed upon the Premises by or resulting from any act of
Sublessee, and nothing herein contained shall be construed to require such subordination by
Sublessor. Sublessee shall keep the Premises free from any liens for work performed, materials
furnished or obligations incurred by Sublessee. EXCEPT AS OTHERWISE CONSENTED TO
BY SUBLESSOR PURSUANT TO SECTION 9, NOTICE IS HEREBY GIVEN THAT
SUBLESSEE IS NOT AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN,
MORTGAGE, DEED OF TRUST OR ENCUMBRANCE OF ANY HIND UPON ANY, ALL
OR ANY PART OF THE PREMISES OR SUBLESSEE'S LEASEHOLD INTEREST
THEREIN, AND ANY SUCH PURPORTED TRANSACTION SHALL BE VOID.
FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE DEEMED A
TORTIOUS INTERFERENCE WITH SUBLESSOR'S RELATIONSHIP WITH SUBLESSEE
t. AND SUBLESSOR'S OWNERSHIP OF THE PREMISES.
22.2. This Lease and the estate, interest and rights hereby created are
subordinate to every Ground Lease and Mortgage now or hereafter placed upon the Premises by
Sublessor, and Sublessee covenants and agrees to execute and deliver, upon demand, such further
instruments subordinating this Sublease to the lien or interest of any or all such Ground Leases or
Mortgages as shall be desired by Sublessor or any present or proposed Ground Lessor or
Mortgagee. Notwithstanding the foregoing, the subordination of this Sublease to any future
Ground Lease or Mortgage shall be subject to the execution by such Ground Lessor or Mortgagee
of a subordination and nondisturbance agreement in substantially the form set out in Exhibit D or
such other form as is reasonably acceptable to such future Ground Lessor or
Mortgagee.
22.3. If any Mortgagee, receiver or other secured party elects to have this
Sublease and the interest of Sublessee hereunder be superior to any such interest or right and
evidences such election by notice given to Sublessee, then this Sublease and the interest of
Sublessee hereunder shall be deemed superior to any such Mortgage, whether this Sublease was
executed before or after such Mortgage and in that event such Mortgagee, receiver, trustee or
other secured party shall have the same rights with respect to this Sublease as if it had been
executed and delivered prior to the execution and delivery of the Mortgage and has been assigned
to such Mortgagee, receiver, trustee or other secured party.
826289.117/21/05 27
22.4. Although the foregoing provisions shall be self-operative and no future
instrument of subordination shall be required, upon request by Sublessor, Sublessee shall execute
and deliver whatever instruments may be required for such purposes, and in the event Sublessee
fails so to do within 10 days after demand, Sublessee does hereby make, constitute and
irrevocably appoint Sublessor as its agent and attorney-in-fact and in its name, place and stead so
to do, which appointment shall be deemed coupled with an interest.
22.5. In the event that any existing or prospective Ground Lessor or Mortgagee
requires a modification or modifications of this Sublease, which modification or modifications will
not cause an increase in rent or in any other way materially and adversely change the rights or
obligations of Sublessee under this Sublease, Sublessee agrees that this Sublease may be so
modified and agrees to execute whatever documents are required therefor and deliver the same to
Sublessor within ten (10) days following written request by Sublessor. In the event Sublessee
fails to execute and deliver such documents within ten (10) days of written request by Sublessor,
Sublessee does hereby make, constitute and appoint Sublessor as Sublessee's attorney-in-fact and
agent in its name, place and stead to do so. This power of attorney is given as security coupled
with an interest and is irrevocable.
22.6. In the event any Ground Lessor or any purchaser or assignee of Mortgagee
at a foreclosure sale acquires title to the Premises, or in the event any Ground Lessor or
Mortgagee or any assignee of such party otherwise succeeds to the rights of Sublessor as landlord
` under this Sublease, Sublessee shall attorn to such Ground Lessor or Mortgagee or such
purchaser or assignee, as the case may be (individually and collectively, a "Successor Sublessor"),
and recognize the Successor Sublessor as Sublessor under this Sublease, and this Sublease shall
continue in full force and effect as a direct lease between the Successor Sublessor and Sublessee,
provided that the Successor Sublessor shall only be liable for any obligations of the Sublessor
under this Sublease which accrue after the date that such Successor Sublessor acquires title. The
foregoing provision shall be self operative and effective without the execution of any further
instruments.
22.7. Sublessee shall give written notice to any Ground Lessor of the Premises
or Mortgagee having a recorded lien upon the Premises or any part thereof of which Sublessee
has been notified of any breach or default by Sublessor of any of its obligations under this
Sublease. If, within thirty (30) days after receipt of written notice from Sublessee, Mortgagee, at
Mortgagee's sole option, commences to cure a default of Sublessor under the Lease that is
capable of being cured by Mortgagee, or commences to pursue any other of its remedies under
the Mortgage and thereafter diligently pursues such cure to completion, Sublessee agrees not
to terminate this Sublease, reduce rent, credit or offset against future rents, consent or acquiesce
in the termination of the Sublease or surrender the Premises and agrees to continue to be bound by
the terms of this Sublease. Upon request by Sublessor, Sublessee shall also provide Sublessees
most recent audited financial statements to Sublessor or any such Ground Lessor or Mortgagee
and certify the continuing accuracy of such financial statements in such manner as Sublessor and
such Ground Lessor or Mortgagee may request.
826218.11 7RU05 28
22.8. If Ground Lessor or Mortgagee shall succeed to the rights of Sublessor as
landlord under this Sublease, whether through termination of a Ground Lease, foreclosure of the
lien of a Mortgage, deed-in-lieu of foreclosure or otherwise, Ground Lessor or Mortgagee, as
Sublessor, shall have the right to sell or convey all, but not less than all, of the Premises or to
assign its right, title and interest as Sublessor under this Sublease in whole, but not in part. In the
event of any such sale or assignment other than a security assignment, Sublessee shall attorn to
such purchaser or assignee and Sublessor shall be relieved, from and after the date of such transfer
or conveyance, of liability for the performance of any obligation of Sublessor contained herein,
except for obligations or liabilities accrued prior to such assignment or sale (provided, however,
nothing in this Section 24 shall impose liability on Ground Lessor or Mortgagee or such
purchaser or assignee, as Sublessor, for the obligations of Sublessor accruing under this Sublease
prior to the time Ground Lessor or Mortgagee or such purchaser or assignee, as the case may be,
succeeds to Sublessor's rights as Sublessor under this Sublease).
23. Estoppel Certificate.
23.1. At any time, and from time to time, Sublessee agrees, promptly and in no
event later than 10 days after a request from Sublessor or any Ground Lessor or Mortgagee of the
Premises to execute, acknowledge and deliver to Sublessor or any present or proposed Ground
Lessor or Mortgagee or purchaser designated by Sublessor, any Ground Lessor or Mortgagee of
r the Premises a certificate in the form supplied by Sublessor, certifying: (i) that Sublessee has
accepted the Premises (or, if Sublessee has not done so, that Sublessee has not accepted the
Premises, and specifying the reasons therefor); (ii) that this Sublease is in full force and effect and
has not been modified (or if Modified, setting forth all modifications), or, if this Sublease is not in
full force and effect, the certificate shall so specify the reasons therefor; (iii) the commencement
and expiration dates of the Sublease Term and the terms of any extension options of Sublessee;
(iv) the date to which the rentals have been paid under this Sublease and the amount thereof then
payable; (v) whether there are then any existing defaults by Sublessor in the performance of its
obligations under this Sublease, and, if there are any such defaults, specifying the nature and
extent thereof; (vi) that no notice has been received by Sublessee of any default under this
Sublease which has not been cured, except as to defaults specified in the certificate; (vii) the
capacity of the person executing such certificate, and that such person is duly authorized to
execute the same on behalf of Sublessee; (viii) that neither Sublessor nor Mortgagee has actual
involvement in the management or control of decision making related to the operational aspects or
the day-to-day operations of the Premises, including the USTs or the handling or disposal of
solid or hazardous waste, except as expressly provided in this Sublease or the Environmental
Indemnity Agreement; and (ix) any other information reasonably requested by Sublessor, or its
present or proposed purchaser or Ground Lessor or Mortgagee.
23.2. If Sublessee shall fail or refuse to sign a certificate in accordance with the
provisions of this Section within 10 days following a request by Sublessor, Sublessee irrevocably
constitutes and appoints Sublessor as its attorney-in-fact to execute and deliver the certificate to
826189.11 721/05 29
any such third party, it being stipulated that such power of attorney is coupled with an interest
and is irrevocable and binding.
24. Consent of Sublessor.
Unless specified otherwise herein, Sublessor's consent to any request of Sublessee
may be conditioned or withheld in Sublessor's sole discretion. Sublessor shall have no liability for
damages resulting from Sublessor's failure to give any consent, approval or instruction reserved to
Sublessor, Sublessee's sole remedy in any such event being an action for injunctive relief.
Notwithstanding anything to the contrary contained herein, in all instances where consent or
approval is required under the Prime Lease or a Mortgage or Ground Lease, Sublessee shall be
required to obtain such consent or approval from both Sublessor and Prime Lessor or Mortgagee,
as applicable.
25. Notices.
All notices, consents, approvals or other instruments required or permitted to be
given by either party pursuant to this Sublease ("Notices") shall be in writing and given by (i)
hand delivery, (ii) facsimile, (iii) express overnight delivery service or (iv) certified or registered
mail, return receipt requested (provided, however, Notices sent by certified or registered mail
shall also be delivered by one of the other methods described in subitems (i), (ii) and (iii) hereof),
and shall be deemed to have been delivered upon (a) receipt, if hand delivered, (b) transmission, if
delivered by facsimile, with facsimile machine confirmation, (c) the next Business Day, if
delivered by express overnight delivery service, or (d) the third Business Day following the day
of deposit of such notice with the United States Postal Service, if sent by certified or registered
mail, return receipt requested. Notices shall be provided to the parties and addresses (or facsimile
numbers, as applicable) specified below:
126289.11 =110S 30
If to Sublessor: Real Estate Department
Attn: William Long
Uni-Marts, LLC
477 East Beaver Avenue
State College, PA 16801-5690
Telephone: 814-234-6000
Telecopy: 814-234-3277
If to Sublessee: SAIMA INTERNATIONAL, INC.
Attn: Aijaz A. Shaikh, President
2203 Glen Allen Avenue, Apt T-2
Silver Spring, MD 20906
Telephone:
Telecopy:
i
or to such other address or such other person as either party may from time to time hereafter
specify to the other party in a notice delivered in the manner provided above. No such notices,
consents, approvals or other communications shall be valid unless Ground Lessor or Mortgagee,
if any, receives a duplicate original thereof, provided Sublessor has provided Sublessee with
contact information for such party.
26. Sublessor's Lien/Security Interest.
Sublessee agrees that Sublessor shall have a landlord's lien, and additionally hereby
separately grants to Sublessor a first and prior security interest, in, on and against all personal
property belonging to Sublessee from time to time situated on or used in connection with any or
all the Premises, which lien and security interest shall secure the payment of all rental and other
charges payable by Sublessee to Sublessor under the terms hereof and all other obligations of
Sublessee to Sublessor under this Sublease; provided, however, that such lien and security
interest shall be automatically subordinated and second in lien priority to (a) any security interest
in such assets granted by Sublessee to an unaffiliated financial institution as security for purchase
money financing utilized to acquire such assets, (b) any security interest in such assets granted
by Sublessee to an unaffiliated financial institution as security for financing utilized to acquire the
business at the Premises and (c) all renewals, replacements, modifications, and extensions of such
financings. Sublessee further agrees to execute and deliver to Sublessor from time to time such
financing statements and other documents as Sublessor may then deem appropriate or necessary
to perfect and maintain said lien and security interest, and expressly acknowledges and agrees
that, in addition to any and all other rights and remedies of Sublessor whether hereunder or at law
or in equity, in the event of any default of Sublessee hereunder, Sublessor shall have any and all
rights and remedies of Sublessor granted a secured party under the Uniform Commercial Code
then in effect in the State. If Sublessee shall fail for any reason to execute any such financing
statement or document within 10 days after Sublessor's request therefor, Sublessor shall have the
right to execute the same as attorney-in-fact of Sublessee, coupled with an interest, for, and on
826298.11 VMS 31
behalf, and in the name of Sublessee. Sublessee covenants to promptly notify Sublessor of any
changes in Sublessee's name and/or organizational structure which may necessitate the execution
and filing of additional financing statements (provided, however, the foregoing shall not be
construed as Sublessor's consent to such changes).
27. Financial Statements.
Within 45 days after the end of each fiscal quarter, and within 120 days after the
end of each fiscal year of Sublessee, Sublessee shall deliver to Sublessor (i) complete financial
statements of Sublessee including a balance sheet, profit and loss statement, statement of changes
in financial condition and all other related schedules for the fiscal period then ended; and (ii)
income statements for the business at the Premises. All such financial statements shall be
prepared in accordance with generally accepted accounting principles, consistently applied from
period to period, and shall be certified to be accurate and complete by Sublessee (or the Treasurer
or other appropriate officer of Sublessee). Sublessee agrees to reasonably cooperate with
Sublessor's requests to provide such financial information prior to the end of the applicable
period established for delivering such information. Sublessee understands that Sublessor is relying
upon such financial statements and Sublessee represents that such reliance is reasonable. In the
event that Sublessee's property and business at the Premises is ordinarily consolidated with other
business for financial statement purposes, such financial statements shall be prepared on a
consolidated basis showing separately the sales, profits and losses, assets and liabilities
pertaining to the Premises with the basis for allocation of overhead of other charges being clearly
set forth. The financial statements delivered to Sublessor need not be audited, but Sublessee shall
deliver to Sublessor copies of any audited financial statements of Sublessee which may be
prepared, as soon as they are available. Sublessor shall be permitted to share copies of all
Sublessee financial statements and other information concerning this Sublease with any
Mortgagee or prospective purchaser of the Premises.
28. Sublease Subordinate to Prime Lease; Termination of Prime Lease.
28.1. Sublease Subordinate. This Sublease and the rights of the parries under
this Sublease are subject and subordinate to the Prime Lease and the rights of Prime Lessor.
28.2. Termination of Prime Lease. If the Prime Lease is terminated for any
reason, this Sublease shall terminate as of the date of termination of the Prime Lease and
Sublessor shall have no liability to Sublessee as a result of such termination.
29. Prime Lessor's Consent.
29.1. Sublease Conditioned Upon Consent. This Sublease is subject to, and
conditioned upon, Sublessor's obtaining the written consent of Prime Lessor to this Sublease (the
"Prime Lessor's Consent"), if such written consent is required under the Prime Lease. As set
826U3.11 7/21105 32
forth in Section 2.2 of this Sublease, the Sublease Term shall not commence until Sublessor has
obtained the Prime Lessor's Consent, if such consent is required under the Prime Lease.
29.2. Delivery of Information. Sublessee shall promptly deliver to Sublessor
any information reasonably required by Prime Lessor (in connection with the Prime Lessor's
Consent) with respect to the nature and operation of Sublessee's business and/or the financial
condition of Sublessee.
29.3. Agrreements for Benefit of Prime Lessor. Sublessor and Sublessee hereby
agree, for the benefit of Prime Lessor, that neither this Sublease nor the Prime Lessor's Consent
shall:
29.3.1. create privity of contract between Prime Lessor and Sublessee;
29.3.2. be deemed to amend the Prime Lease in any way (unless Prime
Lessor shall have expressly agreed in writing to such amendment); or
29.3.3. be construed as a waiver of Prime Lessor's right to consent to
any assignment of the Prime Lease by Sublessor or any further subletting of the Premises.
29.4. Fee. Any fee charged by Prime Lessor in connection with the Prime
Lessor's Consent shall be paid by Sublessee.
29.5. Effect of Failure to Obtain Prime Lessor's Consent. If the Prime Lessor's
Consent is required under the Prime Lease and Prime Lessor fails to consent to this Sublease
within thirty (30) days after the execution and delivery of this Sublease by the parties, either
Sublessor or Sublessee may terminate this Sublease by giving written notice to the other at any
time thereafter, but before Prime Lessor grants such consent. Upon such termination, (A)
Sublessor will return the Security Deposit to Sublessee, (B) this Sublease will become null and
void, and (C) neither party will have any liability or obligation to the other under this Sublease.
30. Brokers.
Sublessor and Sublessee represent and warrant to each other that no broker or
finder other than the Sublessor's Broker was instrumental in arranging or bringing about this
Sublease and that there are no claims or rights for brokerage commissions or finders' fees in
connection with this Sublease by any person or entity other than the Broker. Sublessor shall be
solely responsible for all fees and commissions payable to the Sublessor's Broker. If any person
brings a claim for a commission or finder's fee based upon any contact, dealings or communication
with Sublessor or Sublessee, then the party through whom such person makes its claim shall
defend the other party to this Sublease from such claim, and shall indemnify the other party and
hold the other party harmless from any and all costs, damages, claims, liabilities or expenses
826288.11 7/11 AS 33
(including without limitation, reasonable attorneys' fees and disbursements) incurred by the other
party in defending against the claim.
31. Automatic Teller Machine.
Sublessor reserves the sole and exclusive right, from time to time, to enter into an
agreement with an unrelated third party providing for the installation and operation of an
automatic teller machine ("ATM") within the Premises in a location reasonably approved by
Sublessee. Sublessor shall be responsible for arranging for the installation of the ATM, at
Sublessor's cost, and shall be permitted to install necessary utilities and communications cabling.
Sublessee shall not install or permit the installation of any automatic teller machine other than the
ATM.
32. Signage.
Sublessor reserves the sole and exclusive right, from time to time, to enter into one
or more agreements (each, a "Signage Agreement") providing for the sale of signage rights in and
about the Premises. Without limitation, such signage may be placed in, on and around the
Building and other improvements at the Premises, upon any trade fixtures of Sublessee, or free
standing. Such signage must be in compliance with applicable law and shall not (i) be constructed
in a manner or placed in any location which materially interferes with Sublessee's operations at
the Premises, (ii) be offensive or disreputable in nature or (iii) advertise the sale of products or
performance of services which would be in direct competition with the products and services
sold by Sublessee. Sublessor shall share with Sublessee fifty percent (50%) of any net income
earned by Sublessor from time to time in connection with the sale of signage rights in and about
the Premises.
33. Telecommunications Antennae.
Sublessor reserves the sole and exclusive right, from time to time, to enter into one
or more agreements with unrelated third parties providing for the installation and operation of
telecommunications antennae (the "Antennae") within the Premises in locations chosen by
Sublessor, provided that the same shall be installed and operated in compliance with applicable
law and shall not be placed in any location which materially interferes with Sublessee's
operations at the Premises. Sublessor shall be responsible for arranging for the installation of the
Antennae, at Sublessor's cost, and shall be permitted to install necessary utilities and
communications cabling. Sublessee shall not install or permit the installation of any
telecommunications antennae other than the Antennae.
34. Miscellaneous.
34.1. Interpretation of Sublease. The headings and captions in this Sublease are
,. ' inserted for convenience of reference only and in no way define, describe or limit the scope or
intent of this Sublease or any of its provisions. Where the context so requires, the use of the
876288.11 MIMS 34
( singular shall include the plural and vice versa and the use of the masculine shall include the
feminine and the neuter.
34.2. Governing Law: Jurisdiction and Venue. This Sublease shall be governed
by and construed in accordance with the laws of the State.
34.3. No Recording. Neither this Sublease nor any memorandum or short form
thereof may be recorded by Sublessee.
34.4. Survival. Any covenants set forth in this Sublease which, by their nature,
would reasonably be expected to be performed after the expiration or earlier termination of this
Sublease, shall survive the expiration or earlier termination of this Sublease.
34.5. Counterparts. This Sublease may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which taken together shall constitute one and
the same instrument.
34.6. Binding Effect: Assignment. Subject to Section 9, this Sublease shall be
binding upon, and inure to the benefit of, the parties to this Sublease and their respective
successors and assigns.
34.7. Limitation of Sublessor's Liability. Sublessee shall look solely to
Sublessor's interest in the Premises for enforcement of any obligation of Sublessor under this
Sublease or imposed by applicable law, and no other property or other assets of Sublessor shall
be subjected to levy, execution or other enforcement proceeding for the satisfaction of Sublessee's
remedies or with respect to this Sublease, the relationship of sublessor and sublessee or
Sublessee's use and occupancy of the Premises.
34.8. Joint and Several Liability. If two or more individuals, corporations,
partnerships, or other entities (or any combination of two or more thereof) sign this Sublease as
sublessee, the liability of each such individual, corporation, partnership or other entity to pay
Rent and perform all other obligations of Sublessee under this Sublease shall be joint and several.
34.9. Relationship of Parties. None of the agreements contained herein is
intended, nor shall the same be deemed or construed, to create a partnership (either de jure or de
facto) between Sublessor and Sublessee, to make them joint venturers, to make Sublessee an
agent, legal representative, partner, subsidiary or employee of Sublessor, nor to make Sublessor
in any way responsible for the debts, obligations or losses of Sublessee.
34.10. Entire Agreement; Requirement for Writing.
34.10.1. This Sublease and the Exhibits attached to this Sublease contain
the final and entire agreement of Sublessor and Sublessee and are intended to be an integration of
826Ue.11 7121a5 35
LMU
PARTIES 1. This Lease, made at Harrisburg Pennsylvania
this 7th day of October, 1988, by and between
DONALD E. SLIKE and ROSE H. SLIKE, his wife, adult
individuals, with offices at 1302 Slate Hill Road,
Camp Hill, Pennsylvania 17011, hereinafter called
"Landlord", and UNI-MARTS. INC., a Delaware
corporation with principal offices at 477 Rest Beaver
Avenue, State College, Pennsylvania 16801-5690,
hereinafter called "Tenant".
PREMISES 2. Landlord hereby leases to Tenant a convenience store
erected on Landlord's property located at 98-100 South
Second Street, West Fairview, Pennsylvania and
parking in common with other tenants, as outlined on
Exhibit "A", attached hereto and made a part hereof,
which convenience store consists of approximately 2128
square feet, hereinafter called the "Premises".
IM 3. (a) The base term of this Lease shall commence on
the date first above written (the "Commencement Date")
and terminate at midnight on the 30th day of
September, 1998.
(i) This Lease shall automatically be extended
for an additional five (5) year term ("First
Extension Term") at the and of the base term
unless Tenant shall notify Landlord in
writing no less than six (6) months prior to
the termination of the base term of Tenant's
desire not to extend the term of the lease
for the said five (5) year period.
(ii) In the event this Lease is extended for the
said First Extension Term as provided in (a)
above, this Lease shall automatically be
extended for a second five (5) year term
("Second Extension Term") beginning at the
end of the First Extension Term unless
Tenant shall notify Landlord in writing no
less than six (6) months prior to the
termination of the First Extension Term of
Tenant's desire not to extend the term of
the Lease for an additional five (5) year
period.
(iii) In the event this Lease is extended for the
Second Extension Term as provided in (b)
above, this Lease shall automatically be
ALL Those certain lots of ground situate in the Borough of
West Fairview, County of Cumberland and State of Pennsylvania,
bounded and described as follows:
TRACT NO. 1. On the east by Second Street, on the south by
Lot !'o. 3? now or F01-elly of Mrs. Anna Smith's heirs, on the
west by a 16 foot alley and on the north by Lot No. 40 on Market
Square, now or formerly of Mrs. Amanda Bashore, having a frontage
on said second street of 58 feet 3-3/4 inches and extending back
an even width 150 feet to aforesaid 16 foot alley; together with
all the improvement thereon erected, being a dwelling house numbered
98 Second Street.
Less, however, a portion of the rear of the lot taken in
1939 for highway purposes by the Pennsylvania Highway Department,
being approximately 3 feet in depth on the north and 26 feet on
the south side.
TRACT NO. 2. On the north by Market Street; on the east by Main
or Second Street; on the south by lot now or formerly of Mrs. ,
and nn the see by an r.ll Glessner
cy. Containing S8 feet 3 inches in front
on Main or Second Street and extending in depth 109 feet to said
alley on the west. Having erected thereon a three story frame
apartment house, situate at the southeast corner of market and Main
Streets, known and numbered as 100 Second Street.
EXCEPTING from the above described tract 0.003 acre taken
for highway widening purposes described in Misc. Book 75, Page 107,
as Tract No. 13; "Beginning 30 feet east of the center line of
proposed relocation; thence along lands of Mrs. Emma Glessner south
82 degrees 45 minutes West 3.16 feet; thence along easterly side
of an alley North 7 degrees 16 minutes West 7.81 feet; thence along
new highway south 29 degrees 17 minutes east 8.43 feet to Beginning."
Exhibit "A"
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1AAaD? mFa.kr # 175
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LEASE ADDEVDC 17
Llni-"'larts. Inc., hayinil exercised this Five (5) Year option to extend its current Lease
Alseemen enters into this Lease addendum with Donald E. and Rose M. Slike for the below
referenced locauon(sl On the effective date, this Lease Addendum shall supercede anv previous
addendum or modifications. effecting the store(s) listed below:
Location(s): HMI 221! Uni_Marts 104111 Sunburv, Pa
K"V -31 %t--ni-Man = 04112 Race St. Williamsuon Pa
HIVII 1391 Ufti-Man i! 04114 Nortbwm, Rd Williamspor. Pa.
HMI =76 / Uni-,14art T 04120 Port Royal, Pa.
HMl 469 / Uni-Mart/= 041^• 7 Richfield, Pa.
H?yII =26 ! Uni :.Mart >' 04224 New Cumberland Pa.
HMI X34 / Uui-Mart9 04229 Lemovne, Pa
IM # 42 / Uni-Mart if 04235 D... on. Pa.
HMI 464 / Uni-Marti; 04248 St Thomas, Pa.
HMI ;INK / Uni-Man ;# 04249 New Kingston, Pa
HMI 975 / Uni-Man * 04255 West Fairview, Pa
Current Lease Term Period: October 1. 1998 - September 30.2003
Extended Term: The extended tam will expire on September 30.2008. (rni-Marts will have the
option to extend the term for One (1) additional Five (5) year term and One (1) additional Four
(4) year rerm, expiring September 30: 2013 and 2017 respectfully. Mini-Marts shall notify Lessor.
in Writing 6 months prior to expiration date, for each location(s) individually.
Use of Premiss The demised Premise will be used for the operation of a convenience store.
Arty fitnrre changes in use will require, Lessor written
unreasonably withheld. Permission such permission not to be
Effective Date: October 1. 2003
Rental Payment: The current rent schedule, based
ercent lMof merchandise sales
will be eliminated and replaced with a fixed Rental IMMMINW
made in equal monthly installments. The new fixed renw t schedule. Total esannual tabli rent shall be shed setting a base year rent The base year rent shall be the rent paid for the
period O ber 12001
through September 30, 2002. On the effective date; the base rent shall increase by?
Percent. (refer to Exhibit °A") The base vest rent
year of plus ?ncrease map constithrte the first
fixed rental payments.
Annual Increase: Be-ginning on October 1: 200;, there shall be an annual increase dftpver
the previous year's rent. Each and even- anniversan: date the rent small increaprevious vear's rent
MMova the
Page 42 - Febtuan-?0l1'
Uni-?"I-t Iv. Slike Lease Addendum
Other Conditions: All other terms, conditions, and covenants of the original Lease ,greemenu
dared October 1. 1988 shall remain in efPeat.
'Witness:
Landlord:
a? z? ?S C d
6 a t. an=- ' date
Rose M. Sllx i date
Tenant Uni Inc.:
W He- D. Sabakian; CEO , date
DONALD E. SLME
P. 0. Box 292
Camp Hill, PA 17001-0292
(717) 761.2085
Fax (717) 761-0330
TO: Hill Long
Dhaeeor of Real Pstm
Um-Mao, hu.
Dar 09.10.04
Fa Naaber: (914) 234"9712
Number of Pager 1 Cnwb big eov_ d")
commaots:
Plum Ghana the address on the moadNy mt cbedc for Ckiatopher SMm and Lin 1$owa3eg as
Gbd gopher ShIm
Lisa Browning
429 N. Eaoia Raad
EWk PA 17025
1f yo- ayatem pmnirs m extra addrom Hme, please add "M Shudke Maker. Tf sot the address
shown above wM be mtSaaot
Tbadm...Man
f2,1
G
Yz?y
Y._s?_
•?ci e536 P.03
DONALD E. SLDM
ROSE MARIE SLUM
P. O. Box 292
Camp Hill, PA 17001-0292
(717) 761-2085
Fax (717) 761-0330
TO: BM Long
Date: 07-22-04
Fsx Number; 1-914.234-8712
Numba of Pages: 1(ineluding cover s6m)
Bill:
As per your telsphatte coavsass?oa this motuiag with M-M pkoe be advised that the fonowiag
stores were sold to out son asd dsugM,, CW mpher Se and Um Bmwnieg.
#64 (#04248) St 2boms4 PA
#70 (#04251) Mt Holly Springs, PA
#73 (#0425S) West Faili . PA
W (004249) New Kht b)% PA
Auguste f°z ded the Check Uai-farts sent tbr Jolt', 2004, to us, end so please xnd the root for
bsequent moa9ts tb Christopber SW- and Liss
mY buiidfiM end so You can send the checks to the sore Tboy b,& hove ot5oes m
Camp H311, PA 1 700 1-0292 . wall dkoMd 0&,Mwim addess Yoa iteve for me - P. 0. Box 292,
this tnetta. Should yon have any Questions a regtt{re any@utig
fitter, do not ha*me
to OC.
Y,
Slike
L E A S E
UNI-MARTS, INC., TENANT
October 7, 1988
MASTER COPY
TABLE OF CONTENTS
Lease Paraeraoh
1. Parties 1
2. Premises 1
3. Term 1
4. Rent 2
5. Use of Premises 7
6. Sale of Petroleum Products 7
7. Alterations 8
8. Mechanics' Liens 8
9. Condition of Premises 8
10. Assignment and Subletting 9
11. Access to Premises 9
12. Utilities 10
•13. Real Estate Taxes 10
14. Building Services 10
15. Repairs and Maintenance 11
16. Common Areas or Charges 12
17. Surrender of Premises 12
18. Indemnification and Liability 13
19. Tenant Liability and Insurance 14
20. Insurance Fire or Casualty 14
21. Representations and Warranties 15
22, Subordination and Attornment and
Nondisturbance 18
23. Condemnation 20
24. Estoppel Certificates 20
25. Tenant Default 21
26. Landlord Default 22
27. Accelerated Rent 22
28. Remedies 22
29. Waiver 24
30. Quiet Enjoyment 25'
31. Unavoidable Delay 25
32. Right of First Refusal 25
33. Successor 26
34. Governing law 26
35. Separability 26
36. Captions 26
37. Gender 26
38. Notices 27
39. Jurisdiction 27
40-. Brokers 27
41. Execution 27
42. Exhibits 27
43. Entire Agreement 27
44. Recording 27
Exhibits - A Outline of Premises
PARTIES 1. This Lease, made at Harrisburg , Pennsylvania
this 7th day of October , 1988, by and between DES
ASSOCIATES, a Pennsylvania general partnership, with
offices at 1302 Slate Hill Road, . Camp Hill,
Pennsylvania 17011, hereinafter called "Landlord",
and DTI-MARTS, INC., a Delaware corporation with
principal offices at 477 East Beaver Avenue, State
College, Pennsylvania 16801-5690, hereinafter called
"Tenant".
PREMISES 2. Landlord hereby leases to Tenant a building erected
on Landlord's propertv located at
outlined on Exhibit
"A", attached hereto and made a part hereof, which
building consists of approximately 2400 square feet,
hereinafter called the "Premises".
TEBIi 3. (a) The base term of this Lease shall commence on
the date first above written (the "Commencement Date")
and terminate at midnight on the 30th day of
September, 1998.
(i) This Lease shall automatically be extended
for an additional five (5) year term ("First
Extension Term") at the and of the base term
unless Tenant shall notify Landlord in
writing no less than six (6) months prior to
the termination of the base term of Tenant's
desire not to extend the term of the Lease
for the said five (5) year period.
(ii) In the event this Lease is extended for the
said First Extension Term as provided in (a)
above, this Lease shall automatically be
extended for a second five (5) year term
("Second Extension Term") beginning at the
end of the First Extension Term unless
Tenant shall notify Landlord in writing no
less than six (6) months prior to the
termination of the First Extension Term of
Tenant's desire not to extend the term of
the Lease for an additional five (5) year
period.
(iii) In the event this Lease is extended for the
Second Extension Term as provided in (b)
above, this Lease shall automatically be
extended for a third five (5) year term
(-Third Extension Term) beginning at the
and of the Second Extension Term unless
Tenant shall notify Landlord in writing-no
less than six '(6) months prior to the
termination of the Second Extension Term of
Tenant's desire not to extend the term of
the Lease for an additional five (5) year
period.
(iv) In the event this Lease is extended for the
Third Extension Term as provided in (c)
above, this Lease shall automatically be
extended for a four (4). year term ("Fourth
Extension Terms) beginning at the and of the
Third Extension Term unless Tenant shall
notify Landlord in writing no less than six
(6) months prior to the termination of the
Third Extension Term of Tenant's desire not
to extend the term of the Lease for an
additional four (4) year period.
(v) All extensions of this Lease, as provided
above, shall be upon the same terms and
conditions as contained in the original
lease period with the exception of rentals
which shall be based upon the rental as set
forth in Paragraph 4 below.
(b) Should the Tenant continue to occupy, use and
retain possession of the Premise's after the
termination of this Lease, such occupancy shall be as
a tenant from month-to-month at the same rental and on
the same conditions except as to term as herein
provided.
(c) Notwithstanding the foregoing. Tenant shall have
the right to ' terminate this Lease on the third
anniversary of the Commencement Date upon at least
six (6) months prior written notice to Landlord, .
RENT 4.(a)(i) Beginning on the Commencement Date, Tenant
shall pay Landlord a rental for each Lease
Year equal to the greater of (A) the product
of the Applicable Percentage multiplied by
the Gross Sales for each Lease Year or (B)
JOEMs Thousand Dollars (IMMINNOMISPA
(ii) payments of rent with respect to each Lease
Year shall be made in monthly installments.
payments shall be made on October 10 and on
the first day of each other calendar month
during each Lease Year, without offset or
demand, in an amount equal to the'greater of
(A) the product of the Applicable Percentage
multiplied by the average monthly Groan
Sales for the immediately preceding October
1 thru September 30 period or
Thousand Dollars MOMOMP• ov ded,
that the first installment shall be made on
the Commencement Date and shall be prorated
based on the number of. days in the period
from the Commencement Date thru the and of
the month in which the Commencement Date
falls divided by thirty (30).
(iii) Within thirty (30) days after the
expiration of each Lease Year the Tenant
shall furnish to the Landlord a statement
verified by a duly qualified officer of the
Tenant setting forth the Gross Sales made on
the Premises in such Lease Year together
with a payment equal to the excess, if any,
of the product of the Applicable Percentage
multiplied by the Gross Sales in such Lease
Year over the aggregate monthly rental
payments made with respect to the Lease
Year. If the aggregate monthly rental
payments made with respect to the Lease Year
exceed the larger of (i) r (ii) the
product of the Appl a Percentage
multiplied. by the Gross Sales for the Lease
Year, the excess shall be credited against
rental 'payments coming due under paragraph
.4(a)(ii) above.
(iv) For purposes of this Lease, the following
definitions shall apply:
(A) The term "Applicable Percentage"
shall mean:
(1) For the first Lease Year
mob.
(2) For the second Lease
Year -MMMM
(3) For the third Lease Year
and each Lease Year
thereafter during the
term of this Lease -or
any Extension Term MOM
(B) The term "Lease Year" shall mean
the 12-month period beginning on
October 1 of eaeh•yaar and ending
on the following September 30.
Provided, however, that the first
Lease Year shall begin on the
Commencement Date and end, on
September 30, 1989.. If there is a
period at the and of the term of
this Lease which is less than a
full 12-month Lease Year, then the
shorter period shall be considered
a separate Lease Year.
(C) The term 'Gross Sales" shall mean
all receipts from the conduct of
all business upon the leased
property including, without being
limited to, the gross sales of
merchandise at or supplied from
the leased property, whether sold
for cash or on a charge or credit
.basis, all charges for the
rendition of services on or
supplied from the leased property,
and all sales and business of any
licensees or concessionaires
operating upon the leased
property. Amounts attributable
to sales originally made upon the
leased property and to services
originally contracted for upon the
leased property shall be included
in gross sales even though payment
of the bill for such sales or
services is transferred to another
location for collection; or
deliveries pursuant to such sales
or performance of such services
are effected outside of the
leased property. Amounts
attributable to merchandise
delivered or services performed
upon the leased property, though
contracted for elsewhere, shall
be included in gross sales. in
computing gross sales there shall
be deducted the amount of all '
taxes payable by the seller on the
sale of merchandise or services in
or from the leased property under
aay federal, state or local law
levying or imposing a tax upon the
sale of merchandise or services;
provided, however, that no
capital stock tax, privilege tax,
or franchise tax, and no income or
similar tax based upon income or
profits as such, shall be deducted
from gross sales. In computing
gross sales there may also be
excluded or deducted receipts
and/or commissions from the sale
on the leased' property of
gasoline, lottery tickets, video
tapes, vending machine sales,
automatic teller machines, and
money orders, and the proceeds of
the sale of any of the Tenant's
fixtures or store equipment used
in and upon the leased property.
There shall also be excluded from
gross sales exchanges of
merchandise between stores of
Tenant or its subsidiaries,
returns to shippers or
manufacturers and cash or. credit
refunds made upon transactions
included within gross sales.
(v) The Tenant shall maintain with respect to
the business transacte'd' in or from the
leased property the same books and records
as may from time to time during the term of
this lease be generally kept with respect to
other stores of the Tenant. Such books and
records shall be maintained at the'Tenant's
main' office and shall be preserved for the
same length of time as may be the general
practice eieployed with respect to the other
stores, but not lets than three years'. The
books and records in any event shall be
maintained according to generally accepted
accounting principles and shall contain
sufficient information to permit a
calculation of gross sales. The Landlord
shall have the right to examine during
regular business hours at the main
accounting officd of 'the Tenant all books
and records of the Tenant in .any way
pertaining to business transacted in or
from the leased property.
(vi) The•store operated by the Tenant on the
leased property shall employ tape-recording
cash registers or such other sales-recording
devices commonly used in lieu. thereof,
provided such other devices make a permanent
written record of each sale. So sale of any
merchandise or service will be made by the
Tenant without recording the amount paid
therefor on such cash register or other
recording device.
(vii) If upon any examination by the Landlord of
the books or records of the Tenant an error
shall be revealed inifavor of the Landlord
which results in there being due to the
Landlord additional percentage rental in
excess of $100, then the reasonable cost of
such examination shall be paid by the Tenant
to the Landlord. .
(viii) Nothing contained in this Lease shall be
construed as creating a partnership or joint
venture between the Landlord and the Tenant
or between the Landlord and any other party,
or cause the Landlord to be responsible in
any way for the debts or obligations of the
Tenant or any other party.
(b) Tenant hereby covenants' 'and agrees to pay the
rent hereby reserved as and when due, and also all
sums of money, charges or other amounts required to be
paid by the Tenant to the Landlord or to another
person under this Lease which shall be ".rent" in
addition to the rent provided for herein. Non-payment
of additional rent when due shall constitute a default
under this Lease to the same extent, and shall entitle
the Landlord to the same remedies, as non-payment of
rent.
USE OF
PREMISES 5. (a) Tenant shall use and occupy the Premises for
purposes of operating a convenience store. only.
Tenant shall not use or occupy the Premises •for any
other purpose or business without prior written
consent of Landlord which consent shall not be
unreasonably withheld. Tenant shall maintain any and
all governmental permits or authorities required for
its use of the Premises and to maintain, display and
renew any such permits or permissions as required by
law, ordinance, regulation or otherwise.
(b) The Tenant shall operate the leased property for
the uses and purposes for which it is let continuously
throughout the year, and shall conduct and operate its
business therein during each business day at least
from the hours of 7 a.m. to 11 p.m. The Tenant shall
keep the leased property reasonably stocked with
merchandise, and reasonably staffed to serve
customers, comparable to stores doing a similar
business in the vicinity of the leased property. The
Tenant is not required to operate its business during
any time when such operations must be suspended
because of casualty loss to the building, strike,
insurrection, or other cause beyond the control of the
Tenant or when operation is not permitted due to laws
or ordinances which restrict or limit the hours of
operation.
SALE OF
PETROLEUM
PRODUCTS 6. It is understood and agreed that one of the uses
authorized by this Lease is the sale of petroleum
products by the Tenant. If facilities for the sale of
petroleum products do not exist on the Premises at the
commencement of the Lease, Tenant may, after obtaining
any required- permits or 'Approvala, install the
necessary equipment for the sale of petroleum
products, said installation shall be at the sole cost
of the Tenant. If such facilities are installed,
Tenant, at its expense, shall maintain such additional
insurance with respect to the operation of such
facilities, including insurance from damage caused by
leakage, as may be normal and customary or required by
law. Such insurance shall name Landlord as an
additional insured. At 'the termination of this Lease,
if Landlord requests or if required by law, any and
all underground tanks shall be removed, all surface
equipment shall be removed, and the Premises restored
to its original condition.
ALTERATIONS. 7. Tenant shall make 'no alterations, additions or
improvements to the Premises,- except for minor
alterations, improvements and additions without the
prior written consent of Landlord, which shall not be
unreasonably withheld. All such alterations.
additions or improvements shall become a part of the
Premises when made and shall remain upon and be
surrendered with the Premises at the and of the term.
Notwithstanding the foregoing. Tenant shall have the
right, at its expense, to make alterations to or in
the Premises which it say consider necessary, provided
such alterations will not adversely affect the
structural integrity of the building.
MECHANICS'
LIENS B. Tenant shall keep the Premises and the building free
from any liens arising out of . work performed,
materials furnished or obligations incurred by Tenant.
Notwithstanding the foregoing, if any mechanics' or
other lien shall be filed against the Premises
purporting to be for labor or material furnished or to
be furnished at the request of the Tenant, then Tenant
shall at its expense cause such lien to be discharged
of record by payment, bond or otherwise, within twenty
(20) days after the filing thereof. If Tenant shall
fail to cause such lien to be discharged of record
within such twenty-day period, Landlord may cause such
lien to be discharged by payment, bond or otherwise,
without investigation as to the validity thereof or as
to any offsets or defenses thereto,.and Tenant shall,
upon demand, reimburse. Landlord for all amounts paid
and costs incurred including reasonable attorneys'
fees, in having such lien discharged of record.
CONDITION OF
PREMISES 9. (a) Tenant acknowledges and agrees that, except as
expressly set forth in this Lease, there have been no
representations or warranties made by or on behalf of
Landlord with respect to the Premises or with- respect
to the suitability of the same for the conduct of
Tenant's business except-that the Premises may be used
'as a convenience store. The taking of possession of
the Premises by Tenant shall conclusively establish
Premises as Landlord may deem necessary or desirable.
In the event of an emergency, landlord may, at any
time, enter forcibly without liability to Tenant and
without such entry constituting an eviction of
Tenant, termination 'df this Lease or a breach of
Landlord's warranty of Quiet Enjoyment. .
UTILITIES 12. (a) The cost of all utilities furnished to the
Premises, including, without limitation, the cost of
water, gas, electricity and sewerage, shall be paid by
the Tenant. Such cost shall include the cost of
maintenance of the quantity and quality of water from
a well and the periodic cleaning of a septic tank if
same service the Premises.
(b) If the utilities provided to the Premises are not
separately metered or billed, Tenant shall pay to
Landlord its proportionate share of such expense based
on the ratio of its leasable square footage to the
leasable square footage of other tenants or such
other reasonable apportionment as the Landlord and
Tenant may make based on estimated usage by all
tenants. Tenant shall reimburse Landlord for any
amounts due not less than fifteen (15) days after
receipt of Landlord's statement therefor.
REAL
ESTATE
TAXES 13. Landlord shall remit all real estate taxes assessed or
levied against the Premises; provided, however, that
Tenant shall reimburse Landlord for all such real
estate taxes and for all other types of taxes which
may be assessed or levied in lieu of real estate
taxes. Landlord shall.pravide Tenant with a statement
of real estate taxes due by Landlord with respect to
the Premises. Tenant shall reimburse Landlord for any,
amounts due not less than fifteen (15) days after
receipt of Landlord's statement therefor. Landlord
shall promptly after payment furnish Tenant with a
copy of the receipted bill or other satisfactory
evidence of payment.
BUILDING
SERVICES 14. Landlord shall not be responsible in any way in the
event that the supply of heat, air conditioning,
water, electricity, plumbing, or any other utilities,
10
is cut off by reason of any cause beyond the control
of Landlord, and Tenant does hereby release Landlord
from any damage which may result by reason of any such
failure of the supply.of such items.
REPAIRS AND
MAINTENANCE 15. (a) Tenant shall keep the premises, both interior and
exterior, including parking lot, sidewalk, driveways,
roof, beating, air conditioning, plumbing, electrical
system and other equipment in good repair, and
replace all glass broken with glass of equal quality,
and at the and of the term, surrender and deliver the
premises to the Landlord in good order and condition,
reasonable wear and use only excepted.
(b) Tenant shall be responsible for and pay for the
cost of housekeeping of the premises, including lawn
and landscaping care, sweeping, snow removal,
lighting, and striping of any parking area.
(c) (L) Landlord represents and warrants to
Tenant that the roof, parking lot, heating
and air conditioning system and major
structural elements are in good order and
repair. Provided Tenant notifies Landlord
within 90 'days of the commencement of this
Lease, Landlord shall perform such repairs
to the roof,. parking lot and RVAC as may be
required to comply with the representation
contained in the foregoing sentence. If
said repairs are not completed within 30
days of said notice, Tenant may proceed to
make said repairs and deduct the amount
expended from any rent due or to become due.
(ii) To the extent replacement of the roof,
parking lot, heating and air conditioning
system or major structural elements is
required, Landlord shall accomplish same at
Landlord's expense. In the event that
Landlord fails to replace such items within
30 days of receipt of certification from an
independent expert of Tenant's choice that
such items are in need of replacement,
Tenant may proceed to have such replacement
made and to pay the cost. The Landlord
shall pay to Tenant the cost of such
replacement on demand and if not paid,
11
Tenant may deduct the amount expanded from
any rent due on to become due.
(d) Except as provided in Paragraph 15(c) above,
Tenant shall make, at' its sole cost and expense, all
repairs necessary to maintain the Premises and the
fixtures therein.in neat and orderly condition. If
Tenant refuses or neglects to make such repairs, or
fails to diligently prosecute the same to completion,
after written notice from Landlord of the need
therefor, landlord may make such repairs at the
expense of Tenant and such expense shall be
collectable as additional rent.
(e) Landlord shall not be liable by reason of any
injury to or interference with Tenant's business
arising from the making of any repairs, alterations,
additions or improvements in or to the Premises or to
any appurtenances or equipment therein. There shall
be no abatement of rent because of such repairs,
alterations, additions or improvements, except as
provided in Paragraph 20 hereof and in Paragraph 15(c)
above.
COMMON
AREAS OR
CHARGES 16. If the Premises are part of a multi-tenant property of
Landlord, and Tenant pays for items specified in
Paragraphs 12, 15 and 20 which benefit the entire
property, landlord shall reimburse Tenant for such
expenditures based on the ratio of the leasable
square footage of Landlord's other property over the
total leasable square footage of the property.
SURRENDER OF
PREMISES 17. At the and of the term of this Lease, Tenant shall
surrender the Premises to Landlord, together with all
alterations, additions and improvements thereto, in
broom clean condition and in good order and repair
except for ordinary wear and tear 'and damage 'for which
Tenant is not obligated to make repairs under this
Lease. If not then in default, Tenant shall have the
right at the end of the term hereof to remove any
equipment, furniture, trade fixtures or other personal
property placed in the '.Premises by Tenant, provided
that Tenant promptly repairs any damage to the
Premises caused by such removal.
12
INDEMNIFICATION
AND LIABILITY 18. (a) Tenant shall indemnify, hold harmless and.de£end
Landlord from 'and against any and all costs, expenses
(including reasonabl'e' counsel fees), liabilities,
losses, damages, suits, actions, fines, penalties,
claims or demands of any kind asserted by or on
behalf of any person or gavermmental authority,
arising out of or in any way connected with, and
landlord shall not be liable to Tenant on account of:
(i) any failure by Tenant to perform any of the
agreements, terms, covenants or conditions
of this lease required-to be performed by
Tenant,
(ii) any failure by Tenant to comply with any
statutes, ordinances, regulations or orders
of any governmental authority; or
(iii) any accident, death or personal injury, or
damage to or loss or theft of property,
which shall occur in or about the Premises,
except as the same may be caused solely by
the negligence of Landlord, its employees or
agents.
(b) Tenant shall be relieved of its. obligation to
indemnify Landlord under Paragraph 18(a)(iii) above to
the extent that, and so long as, Tenant provides, and
maintains in force, insurance for the benefit of the
Landlord, enforceable by Landlord as a named insured,
with a carrier and in amounts reasonably satisfactory
to Landlord against the costs, expenses, liabilities,
losses and damages which may arise out of the
occurrences referred. to in Paragraph 18(a)(iii)
above.
(c) Landlord shall indemnify, hold harmless and
defend Tenant from and against any and all costs,
expenses (including reasonable counsel fees),
liabilities, losses, damages, suits, actions, fines,
penalties, •claims or demands of any kind asserted by
or on behalf of any person or governmental authority,
arising out of or in any way connected with, and
Tenant shall not be liable to Landlord on account of:
(i) any failure by Landlord to perform any of
the agreements, terms, covenants or
13
conditions of this Lease required 'to be
performed by Landlord;
(ii) any failure by Landlord to comply with any
statutes, ordinances, regulations or orders
of any governmental authority; or
(iii) any damages caused to Tenant by reason of
Landlord's negligence.
TENANT
LIABILITY
AND
INSURANCE 19. (a) Landlord shall not -be liable for any damage done
to or loss of Tenant's personal property or damage or
loss suffered by the business or occupation of Tenant
arising from any acts or neglect of co-tenants or
other occupants of the building, or of other persona
or from bursting, overflowing or leaking of water or
sewer pipes or from the heating or plumbing fixtures
or from electric wires, or from gas or odors, or
caused in any other manner whatsoever.
(b) Tenant sball maintain comprehensive public
liability and property damage insurance in the amount
of not less than Five Hundred Thousand ($500,000)
Dollars for injury to any one person, not lass than
one Million ($1,000,000) Dollars for any one accident
or occurrence and not less than One Hundred Thousand
($100,000) Dollars for injury to property. Landlord
shall be named as an additional insured on all
policies of insurance relating to the Premises.
Tenant shall provide Landlord with copies of such
insurance policies and any renewals thereof, such
policies to delivered to Landlord within fifteen (15)
days following Tenant's occupancy of the Premises.
All such policies shall provide that they may not be
cancelled without at least fifteen (15) days prior
written notice to Landlord.
INSURANCE
FIRE OR
CASUALTY 20. Landlord, at Tenant's expense, shall carry fire
insurance with all risk, broad form type coverage,
including fire, extended coverage, vandalism and
malicious mischief, collapse, water damage, weight of
ice, sleet or snow and sprinkler leakage, on the
improvements located on the Premises, in solvent and
responsible companies authorized to do business in the
Commonwealth of Pennsylvania in an amount equal to one
14
hundred percent (1000) of the replacement cost of said
improvements. All proceeds from such insurance
policies shall be payable to and held by Landlord or
the holder of a first mortgage on the premises as a
trust fund to be used first, for the purpose of
carrying out Landlord's obligation to repair or
restore the improvements on the Premises.
Upon receipt of statements for premiums due with
respect to said fire insurance with extended coverage.
Landlord will advance such premiums on behalf of
Tenant and immediately advise Tenant in writing of the
amount of the premium so advanced. Within fifteen
(15) days of Tenant's receipt of such notification
from Landlord, Tenant will pay and reimburse the
Landlord the actual amount paid by Landlord on account
of such premiums for fire insurance with extended
coverage, covering the improvements on the Premises.
If more than 506 of the Premises. shall be damaged by
fire or other casualty, either party, upon thirty (30)
days' written notice to the other, shall have the
right to terminate this Lease. if the Lease is not
terminated, or the damage does not affect more than
506 of the Premises, landlord shall, within one
hundred eighty (180) days, repair the damage and the
rent shall be apportioned and abated until the time
landlord advises Tenant. the Premises are ready for
occupancy.
REPRESENTATIONS
AND
WARRANTIES 21. (a) Landlord represents and warrants to Tenant, which
representations shall survive execution, that as of
the date of execution hereof:
(i) Landlord is the sole olMer of a good and
marketable indefeasible estate in fee simple
in the Premises, free and clear of any and
all liens, encumbrances, restrictions,
objections and exceptions which would
prevent or limit Tenant's use of the
Premises for the purposes set forth herein
or Tenant's other rights hereunder, and the
person signing this Lease on behalf of
Landlord has the 'full right and power to
execute this Lease and to bind Landlord
without the necessity of obtaining consent
from any other party.
15
(ii) All zoning, use and other governmental
regulations applicable to the Premises
permit the construction and operation of the
Premises for the uses set forth herein with
appurtenant parking and other facilities.
If such use of the Premises shall at any
time be prohibited by application of law,
Tenant shall have the right to terminate
this Lease.
(iii) An real estate taxes imposed on or upon
the Premises or, if applicable, the property
of which the Premises is a part (the
"Center") which are due and payable have
been paid in full until the date hereof.
(iv) Landlord represents and covenants that (A)
to the best of its knowledge the Premises
bas been at all time during Landlord's
ownership thereof and presently is free of
contamination from any substance or
material presently identified to be toxic or
hazardous according to any applicable
federal, state or local statue, rule or
regulation (collectively, "Hazardous
Material Laws"), including, without
limitation any asbestos, peb, radioactive
.substance, methane, volatile hydrocarbons,
industrial solvents or any other material or
substance which has in the past or could
presently cause or '.constitute a health,
safety or other environmental hazard to any
person or property; (B) Landlord bas not
caused or suffered to occur and Landlord
will not hereafter cause or suffer to occur,
a discharge, spillage, uncontrolled loss,
seepage or filtration of oil or petroleum or
chemical liquids or ablids, liquids or
gaseous products or hazardous waste (a
"spill"), or hazardous substance at, upon,
under or within the Premises or any
contiguous real estate; (C) except to-the
extent gasoline and other petroleum products
are stored and dispensed from the Center,
neither Landlord nor to the beat of its
knowledge any other party has been, is or
will be involved in'operations at the Center
which could lead to the imposition of
liability on Landlord or any other owner or
lessee of the Center or any portion thereof,
16
under any Hazardous Material Laws or under
any similar applicable laws or regulations;
and (D) Landlord has not permitted and will
not permit any tenant or occupant of the
Center to engage"in any activity that could
lead to the imposition of liability on such
tenant or occupant, or Landlord or the
creation of a lien on the Center, under any
Hazardous Material Laws or any similar
applicable law or regulations.
(v) Landlord shall comply 'strictly and in all
respects with the requirements of any
Hazardous Material Laws and related
regulations and with all similar applicable
laws and regulations and shall notify Tenant
promptly in the event of any spill or
hazardous substance upon the Center, and
shall promptly forward to Tenant copies of
all orders, notices, permits, applications
or other communications and reports in
connection with any such spill or hazardous
substance or any other matters relating to
any Hazardous Material Laws or related
regulations or any similar applicable laws
or regulations, as they may affect the
center.
(vi) All future leases at the Center shall
contain a provision prohibiting the deposit,
storage, disposal, dumping, spilling,
leaking or other placement or release by
tenant upon or in the Center of a hazardous
or toxic waste, waste product or substance
as defined in 42 U.S.C. 19601 or as defined
in any other statute, rule, or regulation of
any governmental authority.
(vii) No changes -or alterations will be made by
Landlord to or with respect to the Center
thereof or any portion thereof so as to (A)
reduce the number of parking spaces that are
currently available to the Premises or (B)
adversely and materially affect pedestrian
or vehicular access to and from the Lease
Premises, without the prior written consent
of Tenant.
(viii) As of the date of this Lease Landlord has
received no notices of condemnation or
17
violations of applicable laws, orders, rules
or regulations relating to the Premises.
(b) Tenant represents and warrants to Landlord, which
representations shall "survive execution:
(i) Tenant shall comply strictly and in all
respects with the requirements of any
Hazardous Material Laws and related
regulations and with all similar applicable
laws and regulations and shall notify
Landlord promptly in the event of any spill
or hazardous substance upon the Center, and
shall promptly forward to Landlord copies of
all orders, notices.. permits, applications
or other communications and reports in
connection with awry such spill or hazardous
substance or any other matters relating to
any Hazardous Material Laws or related
regulations or any similar applicable laws
or regulations, as they may affect the
Center.
SUBORDINATION
AND
ATTORNMENT
AND
XONDISTURBANCE 22. (a) Except to the extent they interfere with Tenant's
use of the Premises under the Lease. Tenant accepts
this Lease subject and subordinate to any first
mortgage or mortgages (including, without limitations,
the notes or other obligations secured thereby and any
and all renewals, modifications, consolidations,
replacements or extensions of any such mortgages or
the notes or other obligations secured thereby) now in
existence or hereinafter- made from time to time,
affecting the fee title to the building or the real
property on which the building is located (or arty part
thereof) or Landlord's interest therein. Tenant also
accepts this Lease subject and subordinate to all
instruments in the chain of fee title to the-building
or the real property on which the building is located,
including any and all renewals, modifications,
consolidations, replacements or extensions of such
instruments. Tenant shall execute, acknowledge and
deliver to the holder of any such mortgage or to any
of the parties to such instruments, at any time upon
demand by such holder or by any such party, any
releases, certificates or other documents that may be
18
required by such holder or by any such party, for the
purpose of evidencing the subordination of this Lease
to such mortgages or instruments or to any renewals,
modifications, consolidations, replacements or
extensions thereof. Yn the event of a sale under any
mortgage (or any note or other obligation secured
thereby) to which this Lease is subordinate, or a
taking of.possession of the Premises by the mortgagee
or other person acting for or through the mortgagee
under any mortgage to which this lease is subordinate,
then, and upon the happening of anyt such events,
Tenant shall attorn to and recognize as Landlord
hereunder the party who. but for this Lease, would be
entitled to possession of thw Promises.
(b) As a condition of the subordination set forth in
(a) above, such mortgage shall contain a covenant
binding upon the 'holder thereof, or a separate
agreement which shall be entered into with Tenant and
the holders of the mortgage* to be recorded with such
mortgage or other security agreement to the effect
that :
(i) So long as Tenant observes the terms of this
Lease, its rights of possession to the
premises under the terms and provisions of
the Lease will not be affected or disturbed
by the mortgagee in the exercise of any of
its rights under the mortgage or other
security agreement for the bond or note or
debt secured thereby;
(ii) If the mortgages comes into possession or
ownership of the Premises by foreclosure or
otherwise, this Lease shall continue in
effect and shall-not be terminated by any
such proceeding;
(iii) If the Premises are sold or otherwise
disposed of pursuant to any right or power
contained in the mortgage or other security
agreement or the bond or note secured
thereby, or as a result of proceedings
thereon, the purchaser shall take title
subject to this Lease and all the rights of
Tenant hereunder;
(iv) In the event the buildings and improvements
on the Premises are damaged by fire or other
casualty, for which loss .the proceeds
19
payable under the insurance policy or
policies are payable to the mortgagee, such
insurance funds when paid, shall be made
available for the purpose of repair and
restoration as pibvided in this Lease; and
(v) The agreement shall be binding upon the
Landlord's mortgagee and his respective
heirs, executors, administrators, successors
and assigns.
Notwithstanding the foregoing, to the extent the
Premises are on the date of this Lease subject to a
mortgage which does not meet the above requirements.
Landlord shall only be required to use its best
efforts to obtain an appropriate separate agreement of
the mortgagee.
CONDEMNATION 23. If the whole of the Premises shall be condemned or.
taken either permanently or temporarily for any public
or quasi-public use or purpose, under any statute or
by right of eminent domain, or by private purchase in
lieu thereof, then in that event. the term of this
Lease shall cease and terminate from the date of title
vesting in such proceeding or purchase and Tenant
shall have no claim against Landlord for the value of
any unexpired term of said Lease, and shall release
unto Landlord any such claim it may have against the
condemnor. In the event a portion only of the
Premises or a portion of the building containing same
shrill be so taken (even though the Premises may not
have been affected by the taking of some other portion
of the building containing same). Landlord may elect
to terminate this Lease from the date of title vesting
in such proceeding or.purchase or Landlord may elect
to repair and restore, at its own expense, the portion
not taken.
ESTOPPEL
CERTIFICATES 24. Tenant shall, at any time and from time to time,
within twenty (20) days following written request from
Landlord, execute, acknowledge and deliver to Landlord
a written statement certifying the date to which the
rent reserved hereunder has been paid, and certifying
that there are not, to Tenant's knowledge, any uncured
defaults on. the part of Landlord hereunder, or
specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective
20
purchaser or mortgagee of all or any part of the
building or real property on which the building is
located. Tenant's failure to deliver such statement
within said twenty-day period shall be conclusive upon
Tenant that this Lease is in full force and effect and
unmodified, and that there are no uncured defaults in
Landlord's performance hereunder.
TENANT
DEFAULT 25. The occurrence of any of the following shall con-
stitute a material default and breach of this Lease by
Tenant:
(a) The vacation or abandonment of the Premises
by Tenant;
(b) A failure by Tenant to pay the rent reserved
herein, or to make any other payment
required to be made by Tenant hereunder,
where such failure continues for ten (10)
days after the date such payment was due;
(c) A failure by Tenant to observe and perform
any other provisions or covenants of this
Lease to be observed or performed by Tenant,
where such failure continues for thirty (30)
days after written notice thereof from
Landlord to Tenant provided, however, that
if the nature of the default is such that
the same cannot reasonably be cured within
such thirty-day period, Tenant shall not be
deemed to be in default if Tenant shall
within such period commence such cure and
thereafter diligently prosecute the same to
completion;
(d) The making by Tenant of*iny assignment for
the benefit of creditors; the adjudication
that Tenant is bankrupt or insolvent,e the
filing by or against Tenant of a petition
for reorganization or arrangement under any
law relating to bankruptcy (unless, in the
case of a petition filed against, Tenant, the
same is dismissed within sixty (60) days
after the filing thereof): the appointment
of a trustee or receiver to take possession
of substantially all of Tenant's assets
located in the Premises or of Tenant's
interest in this Lease (unless possession is
21
restored to Tenant within thirty (30) days
after such appointment); or the attachment,
execution or levy against, or other judicial
seizure of, substantially all of Tenant's
interest in thia*Lease (unless the same is
discharged within thirty (30) days after
issuance thereof).
LANDLORD
DEFAULT 26. Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed
by Landlord hereunder unless and until it has failed
to perform such obligation within thirty (30) days
after written notice thereof from Tenant to Landlord;
provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are
required for its performance, then Landlord shall not
be deemed to be in default if it shall commence such
performance within such thirty-day period and
thereafter diligently prosecutes the same . to
completion.
ACCELERATED
RENT 27. In the event of any default or breach of this Lease by
Tenant as set forth in Paragraph 25 hereof, the rent
for the entire unexpired portion of the term of this
Lease based on the Gross Sales being used to calculate
rent under Paragraph 4(b), hereof, at the time of the
default or breach and the Applicable Percentage which
would be in effect during the Lease Years in such
unexpired term shall, at Landlord's option, thereupon
immediately become due and payable, discounted to its
present value. For the purposes of this paragraph,
"present value" shall be computed by discounting at a
discount rate equal to one percentage point above the
discount rate then in effect at the Federal Reserve
Bank nearest to the Premises. Tenant shall be
obligated for such accelerated rent regardless of
which, if any, of the remedies provided in Paragraph
28 hereof or provided by law Landlord elects to
pursue, except that if Landlord elects to terminate-
this Lease as provided in Paragraph 28 hereof, Tenant
shall not be obligated for any rent accrued beyond the
date of such termination.
REMEDIES 28. In the event of any material default or breach of this
Lease by Tenant as set forth in Paragraph 25 hereof,
Landlord, at its option, may terminate this Lease upon
22
and by giving written notice of termination to Tenant,
or Landlord, without terminating this Lease. may at
any time after such material default or breach,
without notice of demand additional to that provided
in Paragraph 25 hereof, and without limiting Landlord
in the exercise of any other right or remedy which
Landlord may have by reason of such default or breach
(other then the aforesaid right of termination),
exercise any one or more of the remedies hereinafter
provided by law, all of such remedies (whether
provided herein or by law) being cumulative and not
exclusive:
(a) Landlord may enter the Premises (with or without
process of law 'and without thereby incurring any
liability to Tenant and without such entry
constituting an eviction of Tenant or termination of
this Lease) and take possession of the Premises and
all personal property of every kind on the'Premises,
and Landlord may (i) apply' against the accelerated
rent and the expenses, including attorneys' fees,.
which Landlord may have incurred in connection with
such repossession, either the value of such personal
property or the proceeds, after selling expenses, from
the sale of such personal property, whichever Landlord
chooses to do, and (ii) at any time and from time to
time relet the Premises or any part thereof for the
account of Tenant, for such terms, upon such
conditions and at such rental as Landlord may deem
proper. In the event of such reletting, (a) Landlord
shall receive and collect the rent therefrom and shall
first apply such rent against such expenses as
Landlord may have incurred in recovering possession of
the Premises, placing the same in good order and
condition, altering or repairing, commissions and
charges, including attorneys' fees, which Landlord may
have paid or reletting, and then shall apply such rent
against the accelerated rent, and (b) Landlord may
execute any lease in connection with such reletting in
Landlord's name or in Tenant's name, as Landlord may
see fit, and the tenant of such reletting shall be
under no obligation to see to the application by
Landlord of any rent collected by Landlord, nor shall
Tenant have any right to collect any rent under such
reletting. No re-entry.by Landlord shall be deemed to
be an acceptance of a surrender by Tenant of this
Lease or of the Premisas.
(b) Tenant does hereby authorize and, empower any
attorney of any court of record within the United
23
Status, to appear for Tenant, and for any other person
claiming under, by or through Tenant, and confess
judgment forthwith against Tenant and such- other
person and in favor of landlord, in an amicable action
of ejectment for *the Premises, together with
hereditament -and appurtenances and all. fixtures and
equipment installed therein, and the Tenant further
authorizes the immediate issuance of a. writ of
possession upon a praeeipe-therefor by thw plaintiff's
attorney and the Tenant hereby waives any and all
right of stay of execution and releases to the
landlord all procedural errors and defects whatsoever
in.entering said action or judgment or in causing said
writ to issue or in any ' proceeding thereon or
concerning the same and agrees that no writ of error,
objection or exception will be made or taken thereto.
The entry of judgment under the foregoing warrants
shall not exhaust the warrants, but successive
judgments may be entered thereunder from time to time
as often as defaults occur. '
WAIVER 29. The failure or-delay on the part of either party to
enforce or exercise at any time any of the provisions,
rights or remedies in this Lease shall in no way be
construed to be a waiver thereof, nor in any way to
affect the validity of this Lease or any part hereof,
or the right of the party to thereafter enforce each
and every such provision, right:or remedy. No waiver
of any breach of this Lease shall be held to be a
waiver of any other or subsequent breach. The receipt
by Landlord . of rent at a time when the rent is in
default under this Lease shall not be construed as a
waiver of such default. The receipt by Landlord of a
lesser amount than the rent due shall not be epustrued
to be other than a payment on account of the rent then
due, nor shall.any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord
and satisfaction, and Landlord may accept such payment
without prejudice to Landlord's right to recover the
balance of the rent due or to pursue any other
remedies provided in this Lease. No act or thing done
by Landlord or Landlord's agents or employees during
the term of this Lease shall be deemed an acceptance
of a surrender of the Premises, and no agreement to
accept such surrender shall be valid unless in writing
and signed by Landlord.
24
QUIET
zRJM MENT 30. If and so long as Tenant pays the rent reserved
hereunder and observes and performs all of the
covenants, conditions and provisions on Tenant's part
to be observed and performed hereunder, Tenant shall
and may peaceably and quietly have, hold and enjoy the
Premises for the entire term hereof, subject to all of
the provisions of this Lease.
UNAVOIDABLE
DELAY 31. In the event that either party shall be delayed or
hindered in, or prevented from, the performs=* of any
work, service or other acts required under this Lease
to be performed by the party and such delay or
hindrance is due to strikes, lockouts, acts of God,
governmental restrictions, enemy act, civil commotion,
unavoidable fire or other casualty, or other causes of
a like nature beyond the control of the party so
delayed or hindered, then performance of such work,
service or other act shall be. excused for the period
of such delay and the period for the performance of
such work, service or other act shall be extended for
a period equivalent to the period of such delay. In
no event shall such delay constitute a termination of
this Lease. The provisions of this Paragraph shall
not operate to excuse Tenant from the prompt payment
of rent.
RIGHT OF
FIRST REFUSAL 32. Landlord hereby grants Tenant a Right of First Refusal
to purchase the Premises during the base term of this
lease and any Extension Term as described in Paragraph
3(a) ("Refusal Period"). In the event Iandlord
receives a bonafide written offer to purchase from a
third party within the Refusal Period that Landlord is
willing to accept, Landlord 41iall forward a true copy
of said offer to Tenant.- In the event Tenant does not
accept the offer within ten (10) days following
receipt of same, this Right of First Refusal shall
expire and lapse and Landlord shall be free to sell
according to the terms of the offer. In the event the
terms of the offer are materially changed thereafter,
Landlord shall resubmit the offer to Tenant pursuant
to the terms hereof. The Affidavit of Landlord to the
bonafide purchaser shall be deemed to be conclusive
evidence of Tenant's failure or refusal to accept the
offer. If Landlord elects not to sell pursuant to the
offer, the Tenant's Right of First Refusal shall not
25
expire and shall continue during the Refusal Period.
Notwithstanding the foregoing, the Right of First
Refusal shall not arise with respect to a transfer by
Landlord to a spouse, lineal descendant, and/or spouse
of a lineal deseeudant'of Landlord, or to an entity in
which Landlord or a spouse, lineal descendants and/or
thr spouse of a lineal descendent own a fifty percent
(50%).. or greater interest (a Related Party), however,
the Premises shall remain subject to the Right of
First Refusal in the hands of such Related Party.
SUCCESSOR 33. The respective rights and obligations provided in this
Lease shall bind and shall inure to the benefit of the
parties hereto, their legal representatives, heirs,
successors and assigns; provided, however, that no
rights shall inure to the benefit of any successor of
Tenant unless Landlord's written consent for the
transfer to such successor has first been obtained as
provided in Paragraph 10.
GOVERNING JAW 34. This Lease shall be construed, governed and enforced
in accordance with the laws of the Commonwealth of
Pennsylvania.
SEPARABILITY 35. If* any provision of this Lease shall be held to be
invalid, void or unenforceable, the remaining
provisions hereof shall in no way be affected or
impaired and such remaining provisions shall remain in
full force and effect.
CAPTIONS 36. Marginal captions, titles or exhibits and riders and
the table of contents : to this Lease are for
convenience and reference only, and are in no way to
be construed as defining, limiting or modifying the
scope of intent of the various provisions of this
Lease.
GENDER 37. As used in this Lease, the word "person" shall mean
and include, where appropriate, an individual,
corporation, partnership or other entity; the plural
shall be substituted for the singular, and the
singular for the plural, where appropriate; and words
of any gender shall mean and include the-other gender.
26
NOTICES 38. All notices required or permitted hereunder shall be
deemed sufficiently given if sent by registered mail
addressed to the Landlord or Tenant, as the case may
be, as follows:
To Landlord: DES Associates
1302 Slate Hill Road
P. 0. Box 292
Camp Hill, PA 17011
To Tenant: Uni-Karts, Inc.
477 East Beaver Avenue
State College, PA 16801-5690
Either party may change its address by notice so given
to the other.
JURISDICTION 39. Tenant hereby agrees and consents to jurisdiction in
Cumberland County, Pennsylvania.
BROKERS 40. Tenant hereby certifies that no real estate broker has
or will represent it in this transaction and that no
finder's fees have been earned by a third party.
EXECUTION 41. This Lease shall become effective when it has been
signed by a duly authorized officer or representative
of each of the parties and delivered to the other
party. This Lease is being executed simultaneously in
two (2) counterparts, one (1) of which shall be
delivered to Tenant'. Each of such fully executed
counterparts shall be deemed original and it shall not
be necessary in making proof of this Lease to produce
or account for more than one such counterpart.
EXHIBITS 42. Attached to this Lease and made part hereof, and
initialed on behalf of both parties simultaneous with
the execution of this Lease, is Exhibit A.
ENTIRE
AGREEMENT 43. This Lease, including the Exhibit hereto, contains
all the agreements, conditions, understandings,
representations and warranties made between the
parties hereto with redpect to the subject matter
hereof, and may not be modified orally or in any
manner other than by an agreement in writing signed by
27
COMMONWEALTH OF PENNSYLVANIA :
COUNTY OF DAUPHIN
SS:
On this, the 7th day of October, 1988, before me, the
undersigned officer, personally appeared Donald E. Slike and Rose M.
Slike, who acknowledged themselves to be the Partners of DES Associates, a
Pennsylvania general partnership, and that they as such Partners, being
authorized to do so, executed the foregoing Lease for the purposes therein
contained by signing the name of the Partnership by themselves as
Partners.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
N ry Public
My Commission Expires:
(SEAT..)
NOTARIAL SEAL
WONNE R PREET. Nmry Public
Hattiaburq.
My CommiWon E Oan County
Jun*1f. uss
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF DAUPHIN
On this, the 7th day of October, 1988, before me, the
undersigned officer, personally appeared J. Kirk Gallaher, who
acknowledged himself to be the Vice President of Uni-Marts, Inc., a
Delaware corporation, and that he as such Vice President, being
authorized to do so, executed the foregoing Lease for the purposes
therein contained by signing the name of the corporation by himself as
Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
No y Public
My Commission Expires:
(SEAL)
YVONNE R. fF1E?ET. NFL
Narrisburq, owp?? ,P,??, ?
? COmmle.len ? Jrns t9 79
Exhibit B
Third Party Leases
826298.117121/05 B-1
Exhibit C
Additional Covenants of Sublessee, per Section 12
[Insert here any covenants appropriate to the transaction which are not
included in the Prime Lease or the base Sublease form
If this sheet remains, there are no such provisions.]
626288.11 VIM C-1
Exhibit D
Form of Estoppel, Subordination, Nondisturbance and Attornment Agreement
Recording requested by and
when recorded return to:
ESTOPPEL, SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGPJUMIEENT
THIS ESTOPPEL, SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT (this "Agreement"), is made as of , 200_, by
and among a ("Tenant"), whose address is
Uni-Marts, LLC, a Pennsylvania limited liability company
("Landlord"), whose address is 477 East Beaver Avenue, State College, Pennsylvania
16801-5690, and , a
("Lender"), whose address is
RECITALS
A. Landlord and Tenant are parties to a sublease dated as of ,
20_ (the "Lease"), wherein Tenant leases certain real property legally described on the
attached Exhibit A and certain improvements located thereon (said real property and
improvements being hereinafter collectively referred to as the "Premises").
B. The Premises is encumbered by that certain
from the fee owner of the Premises, Uni Realty of
Luzerne, L.P., and held by Lender (together with (i) any and all increases, renewals,
modifications, extensions, substitutions, replacements and or consolidations thereof or of the
Note (hereinafter defined) and (ii) any future mortgage or encumbrance affecting the Premises
held by or made for the benefit of Lender and/or its successors and assigns, the "Mortgage")
securing that certain promissory note dated as of the date of the Mortgage payable to the
order of Lender with respect to the Premises (the "Note"), which Mortgage has been
recorded, or is to be recorded contemporaneously with the recording of this Agreement, in the
records of the county recorder where the Premises is located.
826288.11 7121 As
D-1
I, C. Tenant has agreed to recognize the rights of Lender in accordance with the
terms and provisions of this Agreement with respect to the Premises and has further
certified to and agreed with Lender as to certain matters with respect to the Lease as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto mutually covenant and agree as follows:
Subordination.
A. Notwithstanding anything to the contrary contained in the Lease, the
Lease and the leasehold estate created thereby is hereby declared to be, and hereafter shall
continue at all times to be, junior, subject and subordinate, in each and every respect,
to the Mortgage, including, without limitation, (i) any and all increases, renewals,
modifications, extensions, substitutions, replacements and or consolidations of the Note or the
Mortgage and (ii) any future mortgage or encumbrance affecting the Premises held by or
made for the benefit of Lender and/or its successors and assigns. The foregoing
subordination is effective and self-operative without the necessity for execution of any
further instruments.
B. Tenant hereby covenants with Lender that Tenant will not cause the
Lease to be subordinated to any interests other than those held by or made for the benefit of
Lender and/or its successors and assigns without prior written notice to and prior written
consent of Lender.
. C. At any time at the election of Lender, Lender shall have the
right to declare the Lease superior to the lien, provisions, operation and effect of the Mortgage.
2. Nondisturbance. So long as Tenant is not in default, beyond any applicable cure
period, in performance of the terms, provisions and conditions contained in the Lease:
A. Tenant shall not be named or joined in any foreclosure or other
proceedings to enforce the Mortgage unless such joinder be required by law in order to pursue
such foreclosure or other proceedings;
B. Enforcement of the Mortgage shall not terminate the Lease or disturb
Tenant in the possession and use of the Premises; and
C. In the event of any foreclosure or other proceeding instituted for
enforcement of the Mortgage or in case Lender takes possession of the Premises pursuant to any
provision of the Mortgage, the Lease shall continue in full force and effect as though
such proceeding or action had not occurred.
826288.11 712M5
D-2
i. 3. Attornment. Notwithstanding the foregoing subordination, if the interest of
Landlord under the Lease shall be transferred by reason of foreclosure or other
proceedings (judicial or non judicial) for enforcement of the Mortgage or by reason of
a deed in lieu of foreclosure, Tenant, at the election of the transferee and its successors
and assigns (herein and hereafter together called the "Purchaser") acquiring said interests,
shall be bound to the Purchaser pursuant to all of the terms, covenants and conditions of
the Lease for the balance of the term of the Lease then remaining and any extensions or
renewals thereof which may be effected in accordance with any option therefor in the
Lease, with the same force and effect as if the Purchaser were the original landlord under
the Lease, and Tenant does hereby attorn to and agree to attorn to the Purchaser, as its
landlord, said attornment to be effective and self-operative without the necessity for execution
of any further instruments, upon Purchaser's election after succeeding to the interest of the
Landlord under the Lease.
4. Further Acts. Notwithstanding any provisions contained in Sections 1, 2 and 3
above which state that the attornment, non-disturbance and subordination by Tenant to Purchaser are
effective and self-operative without the execution of any further instrument, Tenant agrees that,
upon request of Lender and/or Purchaser, it will execute such written agreement to evidence and
affirm any and all of Tenant's obligations under this Agreement, and further, Tenant agrees that it
will execute from time to time such further assurances and estoppel certificates as may
reasonably be requested by Lender and Purchaser. Without limiting the generality of the
foregoing, if and to the extent that Landlord rejects the Lease in any federal or state
proceeding, Tenant will immediately enter into a new lease directly with the Purchaser on the
same terms as the lease, provided execution of such new lease does not violate any bankruptcy
law or related court order.
Limitation. Neither Lender nor any Purchaser shall be:
A. liable for any act or omission of Landlord or any prior landlord (including
the loss or misappropriation of any rental payments or security deposits);
B. subject to any credits, claims, setoffs, offsets or defenses which Tenant
may have against Landlord or any prior landlord;
C. bound by (or responsible for) any advance payment of rent or any other
monetary obligations under the Lease to Landlord in excess of one month's prepayment thereof
in the case of rent, or in excess of one periodic payment in advance in the case of any other
monetary obligations under the Lease;
D. responsible for any security deposit not actually received by Lender or
any Purchaser;
E. bound by any amendment, assignment (in whole or in part), subletting,
extension, renewal or modification of the Lease to which Lender or Purchaser has not consented in
826288.11 MIMS D-3
writing, and any attempted amendment, assignment (in whole or in part), subletting, extension,
renewal or modification of the Lease without said consent shall be null and void and of no force
and effect;
F. liable for latent and/or patent defects in the construction of the Premises;
G. liable for any breach of any warranty in the Lease by Landlord or a prior
landlord,
H. bound by any obligation to repair, replace, rebuild or restore the Premises,
or any part thereof, in the event of damage by fire or other casualty, or in the event of partial
condemnation, beyond such repair, replacement, rebuilding or restoration as may be
required of the landlord under the Lease and as can reasonably be accomplished with the use of the
net insurance proceeds or the net condemnation award actually received by or made available
to Lender (as successor in interest to Landlord) or Purchaser; or
I. required to remove any person occupying the Premises or any part
thereof. Neither Lender nor any Purchaser shall be liable for any reason for amounts in excess of
the value of its interest in the Premises, or for consequential or punitive damages of any kind.
6. Notice. Tenant agrees to give prompt written notice to Lender (and to any
successor in interest to Lender of which Tenant has been notified) of.
A. any default of the Landlord under the Lease if such default is of such a
nature as to give Tenant a right to terminate the Lease, reduce rent or to credit or offset any
amounts against future rents; and
B, any attempt by the Landlord (including any successor or assignee of the
Landlord) to amend, modify, terminate, or render void the Lease.
7. Cure. If, within thirty (30) days after receipt of written notice from Tenant,
Lender, at Lender's sole option, commences to cure a default of Landlord under the Lease that is
capable of being cured by Lender, or commences to pursue any other of its remedies under the
Mortgage and thereafter diligently pursues such cure to completion, Tenant agrees not to
terminate the Lease, reduce rent, credit or offset against future rents, consent or acquiesce in the
termination of the Lease or surrender the Premises and agrees to continue to be bound by the
terms of the Lease and this Agreement.
8. Waiver. As against Lender and its successors in interest, Tenant hereby waives
any default by Landlord which is not capable of being cured by Lender in the exercise of
reasonable diligence.
9. Payments of Rent to Lender. Landlord absolutely assigns to Lender all payments of
' rent as the same are due under the Lease (the "Rent") and Tenant agrees that, from and after an
Event of Default (as defined in the Mortgage) and until such time as all of Landlord's
826US.11 M1105 D-4
l monetary obligations to Lender pursuant to the Note and the Loan Agreement between Lender
and Landlord (with respect to the Note) have been fully paid, Tenant will pay the Rent directly to
Lender. All such rental payments received by Lender shall be credited against Landlord's
obligations to Lender. Lender agrees to notify Landlord, in writing, of any failure of Tenant to
pay Rent to Lender and Landlord immediately shall cure Tenant's failure to pay by paying such
Rent to Lender.
10. Assignment Landlord, by its execution hereof, agrees that this Agreement does
not constitute a waiver by Lender of any of Lender's rights under the Mortgage and any
assignment of leases or rents contained therein, or in a separate instrument or in any way release
the Landlord from any of the terms, conditions, obligations, covenants and agreements of the
Mortgage.
11. Certification. Tenant hereby certifies to and agrees with Landlord and Lender as
follows, with the understanding that Landlord and Lender are relying on such certifications and
agreements:
A. the Lease is in full force and effect;
satisfied;
B. all requirements for the commencement and validity of the Lease have been
C. Tenant is not in default under the Lease; to the best of Tenant's
knowledge, information and belief, the Landlord is not in default under the Lease; no act, event or
condition has occurred, which with notice or the lapse of time, or both, would constitute
a default by Tenant or Landlord under the Lease; no claim by Tenant of any nature exists against
Landlord under the Lease; and all obligations of Landlord have been fully performed;
D. there are no defenses, counterclaims or setoffs against rents or charges due
or which may become due under the Lease;
E. none of the rent which Tenant is required to pay under the Lease has
been prepaid, or will in the future be prepaid, more than one month in advance;
F. Tenant has no right or option contained in the Lease or in any other
document to purchase all or any portion of the Premises;
G. the Lease has not been terminated, modified or amended. The Lease
shall not hereafter be terminated, modified or amended without the prior written consent of
Lender in each instance; and
H. Tenant has not assigned, mortgaged, sublet, encumbered or otherwise
transferred any or all of its interest under the Lease to any party and no other consents to the
execution of this agreement by the Tenant are required from any other party.
SISM.tt 7121105 D-$
12. Authority. Tenant, Landlord and Lender covenant and agree that the persons
signing on their behalf have full power, authority and authorization to execute this Agreement,
without the necessity of any consents, authorizations or approvals, or if such consents,
authorizations or approvals are required they have been obtained prior to the execution hereof.
13. Governing Law. For purposes of any action or proceeding arising out of this
Agreement, the parties hereto expressly submit to the jurisdiction of all federal and state courts
located in the State and Landlord, Tenant and Lender consent that they may be served with any
process or paper by registered mail or by personal service within or without the State in
accordance with applicable law. Furthermore, Landlord and Tenant waive and agree not to assert
in any such action, suit or proceeding that it is not personally subject to the jurisdiction of such
courts, that the action, suit or proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. This Agreement shall be governed by and construed under
the laws of the State.
14. Notices. All notices, consents, approvals or other instruments required or
permitted to be given by either party pursuant to this Agreement shall be in writing and given by
(i) hand delivery, (ii) facsimile, (iii) express overnight delivery service or (iv) certified or
registered mail, return receipt requested, and shall be deemed to have been delivered upon (a)
receipt, if hand delivered, (b) transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third business day following the day of
deposit of such notice with the United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and addresses (or facsimile
numbers, as applicable) specified below:
If to Landlord : Finance Department
Attn; N. Gregory Petrick
Uni-Marts, LLC
477 East Beaver Avenue
If to Tenant:
State College, PA 16801-5690
Telephone: 814-234-6000
Telecopy: 814-234-3277
Telephone:
Telecopy:
826288.117/21/05 D-6
If to Lender:
Telephone:
Telecopy:
or to such other address or such other person as any party may from time to time hereafter specify
to the other parties hereto in a notice delivered in the manner provided above.
15. Waiver and Amendment No provisions of this Agreement shall be deemed
waived or amended except by a written instrument unambiguously setting forth the matter
waived or amended and signed by the party against which enforcement of such waiver or
amendment is sought. Waiver of any matter shall not be deemed a waiver of the same or any
other matter on any future occasion.
16. Captions. Captions are used throughout this Agreement for convenience of
reference only and shall not be considered in any manner in the construction or interpretation
hereof.
17. Severability. The provisions of this Agreement shall be deemed severable. If any
part of this Agreement shall be held unenforceable, the remainder shall remain in full
force and effect, and such unenforceable provision shall be reformed by such court so as to give
maximum legal effect to the intention of the parties as expressed therein.
18. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect
Damages LANDLORD, TENANT AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY OF THE
PARTIES HERETO AGAINST ANY OTHER PARTY HERETO OR ITS RESPECTIVE
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN. FURTHERMORE, LANDLORD AND TENANT HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT
DAMAGES FROM LENDER WITH RESPECT TO ANY AND ALL ISSUES
PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY LANDLORD OR TENANT AGAINST LENDER OR ITS SUCCESSORS
WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THE WAIVER BY LANDLORD AND TENANT OF ANY RIGHT THEY MAY
826288.11 7n 1/05 D-7
HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES
HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
19. Successors All provisions, covenants and agreements contained in this Agreement
shall bind, inure to the benefit of, and equally relate to, Tenant, and its successors and assigns,
jointly and severally, Landlord, and its successors and assigns, jointly and severally, and Lender,
and its successors and assigns, or other holder or holders of the Note, including an endorsee,
assignee or pledgee of the Note receiving title thereto by or through Lender, or its successors or
assigns.
20. No OtherAgrewwnts THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
21. Counterparts. This Agreement may be signed in counterparts.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date set forth above.
TENANT:
By:
Its:
LANDLORD:
UNI-MARTS, LLC
By:
LENDER:
826M]] MIMS D-O
By:
Its:
[INSERT ACKNOWLEDGEMENTS)
826288.11 712IMS D-9
Exhibit 6
FUEL SUPPLY AGREEMENT
yy
THIS AGREEMENT, made thi95!Kay of sl-?- , 2005 by and between
UNI-MARTS, LLC, a Pennsylvania limited liability company, with its principal place of
business at 477 East Beaver Ave., State College, PA ("Seller") and SAIMA
INTERNATIONAL, INC., a Pennsylvania corporation ("Buyer"), having its principal place of
business at is 2203 Glen Allen Avenue, Apt T-2, Silver Spring, MD 20906., with regard to the
operating location listed at 98-100 SOUTH 2nd STREET, WEST FAIRVIEW, PA 17025
(hereinafter called the "Marketing Premises").
1. Products; Quantities. Seller shall sell, and Buyer shall purchase and accept from
Seller, such quantities of motor fuels as Buyer shall order from time to time during the term of
this Agreement for delivery at the Marketing Premises. Seller agrees to sell to Buyer, and Buyer
agrees to purchase from Seller, the motor fuel products covered by this Agreement in the
quantities shown on the Commodity Schedule, attached hereto.
If Buyer requests deliveries of motor fuels in excess of the maximum quantity set forth
on the Commodity Schedule, Seller may elect to accept such requests where, in its sole
discretion, Seller determines such additional quantities are available. However, Seller is in no
way obligated to provide any motor fuels deliveries in excess of the maximum quantities set
forth on Commodity Schedule. Any sale of motor fuels in excess of the quantities specified
herein shall be subject to the terms and conditions set forth herein. In the event that Seller is
unable to furnish all of Buyer's motor fuel requirements at any time, Buyer may, during the
period of Seller's inability to perform, purchase motor fuel from other sources, provided that
Buyer commits no commingling or misbranding. Buyer's obligation to purchase motor fuels as
provided herein may be reduced, at the sole option of the Seller, if the underground storage tanks
i
607772.9 7/21105
of the Marketing Premises are repaired or replaced.
i
Any petroleum products purchased by Buyer from Seller (except motor fuel products
specifically covered by another Agreement between Buyer and Seller), including petroleum
products not listed above, shall be covered by the terms and conditions of this Agreement.
Nothing herein contained shall be construed as a waiver of any law, ordinance, lease
and/or agreement prohibiting use of UNI-MART owned and/or UNI-MART-branded
dispensing facilities for the storage and sale of other than UNI-MART-brand products. Motor
fuel products, grades, trademarks and packaging shall be similar to those marketed and used by
Seller at times of deliveries with similarly branded dealers in Buyer's area, all as determined by
Seller. Seller may, at any time or from time to time, change the grade, brand name, or other
distinctive designation of any motor fuel product herein listed, and such motor fuel products as
so changed shall remain subject to this Agreement. Seller shall have the right to change the fuel
brand covered by this Agreement at any time, in which event all references to UNI-MART shall
be deemed to refer to the new fuel brand at the time of this Agreement.
2. Term. Unless sooner terminated as hereinafter provided, the term of this Agreement
shall be for a period of ten (10) years from (i) the closing date of Buyer's purchase of the
Marketing Premises, or (ii) any re-imaging or rebranding of the Marketing Premises ("Re-
Imaging") during Buyer's occupancy thereof, whichever is later (the "Initial Term"). The Initial
Term shall automatically be extended until such time as Buyer has fulfilled its obligation, if any,
of selling the total number of motor fuel product gallons during the Initial Term of this
Agreement as stated in the Commodity Schedule. Buyer may elect not to renew this Agreement
after the Initial Term by providing written notice to Seller of such election at least ninety (90)
days prior to the end of the Initial Term (the "Termination Notice"). If Seller does not receive
11-2z-o2
607772.9 7/21/05 2
the Termination Notice by the required date, this Agreement shall automatically renew for a
l
period of ten (10) years from (i) the expiration of the Initial Term, or (ii) any Re-Imaging of the
Marketing Premises during Buyer's occupancy thereof following the Initial Term, whichever is
later (the "Renewal Term").
If Buyer delivers a Termination Notice to Seller during the Initial Term, Seller
and Buyer agree to negotiate for a period of thirty (30) days in good faith, to enter into a new
Fuel Supply Agreement. If Seller and Buyer are unable to reach an agreement during such
period of time to their mutual satisfaction, then Buyer may enter into a fuel supply agreement
with an unaffiliated alternative provider (the "Alternative Agreement"). Prior to Buyer
executing any Alternative Agreement, however, Buyer must provide Seller with a copy of the
Alternative Agreement and allow Seller an opportunity to enter into an agreement with Buyer on
the same business terms as the Alternative Agreement. Seller shall have ten (10) working days
from the date of its receipt of the Alternative Agreement to notify Buyer of its acceptance of any
such offer. If Seller does not so elect within the 10-day period, Buyer may, within a period of
ten (10) working days thereafter, enter into the Alternative Agreement. As a condition to
Buyer's execution of an Alternative Agreement, Buyer must sign an agreement satisfactory to
Seller which indemnifies Seller from any environmental liability from the use and/or possible
misuse of the underground storage tanks by any alternative fuel supply company (and such
indemnification shall be in addition to the environmental indemnifications made by Buyer to
Seller under the Lease Agreement between Seller and Buyer of even date herewith (the "Lease
Agreement")).
3. Prices: Terms. Deliveries. The Buyer will purchase motor fuel products from the
Seller as defined in the attached Commodity Schedule. Deliveries shall be made at the
11-22-02 3
607772.9 7/21105
Marketing Premises and shall be promptly received by Buyer. Payment terms for each delivery
l
are set forth on the Commodity Schedule.
4. Trademarks, Brand Names. During the term of this Agreement Buyer shall have the
right to use UNI-MART trademarks and brand names in accordance with UNI-MART
specifications, allowances and provisions set forth in the agreement between UNI-MART and
Seller. In the event UNI-MART requires image improvements or changes (e.g., canopies,
dispensers, signs, etc.), Seller and Buyer shall equally share the cost of such image
improvements (the "Re-Imaging") and extend the term of this Agreement by the appropriate
number of years to cover any such payments and/or costs (provided that Buyer remains the
tenant under the Lease Agreement during such extension period). Buyer shall not mix, blend,
commingle or adulterate Seller's motor fuel products with any other motor fuel or substance.
Motor fuels dispensed from equipment bearing the UNI-MART identification shall be UNI-
MART motor fuel purchased from and delivered by Seller. Buyer will not remove, alter or de-
brand the UNI-MART identification from the dispensing equipment, except as otherwise
provided in paragraph 1. Any violation of the provisions of this paragraph by Buyer shall
constitute a default under this Agreement and shall give Seller the right to immediately terminate
this Agreement.
During the term of this Agreement, Buyer must continually have available for sale
to the public a representative amount of the UNI-MART motor fuels through dispensing
equipment bearing the UNI-MART names. "Representative amount" means a sufficient supply
of each grade and type of motor fuel so that Buyer shall at no time be out of and always have
each grade and type available for sale.
In addition, if Buyer fails to meet Seller's minimum standards as set forth in
?. 11-22-02
607772.9 7/21105 4
paragraph 7, or if the Marketing Premises are unopened or abandoned for a period of thirty (30)
days, Seller shall have the right to terminate this Agreement. In the event this Agreement is
terminated, (a) Buyer's right to use of UNI-MART color scheme, trademarks, brand names,
slogans, and advertising shall cease; (b) Buyer shall return to Seller all such advertising and
promotional material in Buyer's possession; (c) the Marketing Premises must be de-identified
and Buyer will bear the expense of any de-identification, which would include payment to UNI-
MART for any unamortized portion of Seller's imaging funds; and (d) Buyer hereby grants
Seller and its contractors permission to enter upon the Marketing Premises to the extent
necessary to complete such de-identification.. Buyer acknowledges and recognizes that
injunctive relief is essential for the adequate remedy of any violation of the provisions of this
paragraph 4 by Buyer. Buyer further agrees to pay Seller's reasonable attorney fees in the event
r the same has been initiated by Seller or UNI-MART to enforce any of the provisions of this
paragraph
5. Product Quality Control. Buyer shall protect the quality of motor products delivered
to the Marketing Premises by the Seller. The Buyer shall inspect storage tanks daily for water
accumulation and shall notify the Seller immediately if water exceeds three-fourths of an inch
depth for any tank. The Seller may refuse to make motor fuel deliveries into such a storage tank
or tanks until the problem is corrected. Buyer shall monitor inventory of underground tanks
daily, and reconcile inventory records at least daily. Buyer shall also keep a daily log of all
underground tank inventory readings. The Buyer shall accept all deliveries of motor fuel
products as recorded on the terminal bill of lading.
The sale and distribution of motor fuels is subject to state and federal regulation and the
' Clean Air Act. This obligation addresses both the role of the Seller and Buyer in handling motor
11-22-02 5
607772.9 7n gyros
fuel products. Seller certifies that the motor fuel products delivered will, at the time of delivery,
meet or exceed the specifications under applicable governmental regulations. The Buyer hereby
covenants and agrees that the Buyer will exercise the highest degree of care and diligence in the
handling, storing and sale of motor fuels. Buyer shall not cause or condone any contamination,
mixing or adulteration of Seller's motor fuel products. Buyer shall immediately notify Seller of
any suspicion that the motor fuel products are contaminated in any way. Buyer's failure to
prevent contamination of motor fuel products subsequent to delivery shall constitute a default
hereunder. Seller shall not be responsible for any damages arising from contaminated motor fuel
products unless it is demonstrated by a preponderance of the demonstrable evidence that Seller's
motor fuel products delivered to Buyer were contaminated prior to delivery to Buyer. At Seller's
request, Buyer agrees to provide Seller with results of any tests of the motor fuel products
.' conducted by or for Buyer and further agrees to permit Seller to conduct any additional tests as
Seller may require.
6. Specifications, Brand Name. The Seller, at the sole discretion of UNI-MART at any
time during the term of this Agreement, shall have the right to change, alter, amend, or eliminate
any of the trade names, trademarks, or brands of petroleum products covered by this Agreement.
The Seller, at the sole discretion of UNI-MART at any time during the term of this Agreement,
may also either (a) change or alter the quality, grade, or specifications of any motor fuel products
covered by this Agreement or (b) discontinue or reduce the availability of any such motor fuel
products. The Seller shall give the Buyer written notice of discontinuance or reduction
availability of any motor fuel products covered by this Agreement.
7. Customer Service. Buyer agrees that, while using any trademark, brand name, or
other identification of UNI-MART, Buyer shall: (a) render prompt, fair, courteous and efficient
11-22-02
6
607772.9 7/21/05
( service to Buyer's customers; (b) promptly investigate all customer complaints and make such
adjustments that are reasonable and appropriate; (c) maintain the Marketing Premises, which
includes maintaining the appearance of the building, painting dispenser islands and curbing twice
a year, maintaining any landscaping and maintaining the parking lot (including repair of pot
holes and striping of the lot); (d) provide qualified, uniformed attendants to render good service
to customers; (e) keep the rest rooms open at all times during business hours and keep such rest
rooms clean, sanitary, and furnished with adequate supplies; and (f) not employ or permit any
illegal, unethical, deceptive, or unfair practices in conflict with Buyer's business.
8. Hours of Operation. Buyer hereby acknowledges the importance to both parties to
operate hours that are competitive and consistent with Seller's strategy to recognize customer
convenience. To this end, Buyer will operate the Marketing Premises in the manner required
herein, a minimum of 24 hours per day, each day of the week, during the term of this Agreement.
9. Personal Supervision. This Agreement is made on the condition, and with the
understanding, that the Marketing Premises will be under the- direct, daily, on site supervision of
BUYER, who will personally. manage and oversee daily operation of the Marketing Premises at
least 20 hours per week.
10. Access. Seller and its representatives shall have full and unrestricted rights of
ingress and egress at the Marketing Premises, during normal business hours and upon reasonable
advance notice, for purpose of providing business counsel, advice, training and inspecting the
Marketing Premises and any loaned equipment, performing annual required testing of the tanks
and tank lines, to remedy any default by the Buyer hereunder, to assist Buyer in operating the
Marketing Premises consistent with the standards provided for herein, to audit and examine
Buyer's accounting records, to determine Buyer's compliance with this Agreement, and
11-22-02 7
607772.9 7121105
otherwise to exercise Seller's rights, options and privileges under this Agreement.
11. Financial Statements. Buyer shall provide Seller with financial statements and
other information relative to Buyer's creditworthiness, when requested by Seller. Buyer
represents that such information will be prepared in accordance with generally accepted
accounting principles and practices, consistently applied, fairly and accurately reflecting Buyer's
financial position, and may be relied upon by Seller in doing business with, and in extending
credit to, Buyer.
12. Deliveries. The Marketing Premises is the delivery point for all motor fuel
products sold by Seller to Buyer. Seller is not required to deliver less than 100% of capacity of
truck used for delivery of motor fuels to Buyer. Seller may impose, and Buyer shall pay handling
charges as determined by Seller, for deliveries of less than 100% of capacity of truck, and for
deliveries made at Buyer's request that are not in accordance with Seller's normal delivery
practices. Buyer grants the Seller the right to deliver motor fuel products during Buyer's normal
operating hours, and at other times upon payment of delivery surcharges as set forth in the
Commodity Schedule. Buyer shall notify Seller immediately of any changes in Buyer's normal
operating hours.
Seller will not deliver motor fuel products into any storage system that does not
adequately protect against spill and overfill or is unfit or unsafe for the storage or handling of
motor fuels in Seller's reasonable judgment. Buyer must protect the storage system from unsafe
conditions, and Buyer is solely responsible for all damages to persons or property that in any
way result from Buyer's failure to protect the storage system (except for Seller's obligations with
respect to the underground storage tanks as set forth in the Environmental Indemnity and Service
Agreement between Seller and Buyer). Buyer shall be responsible to ensure that the storage
i
11-22-02
697772.9 Intros
system will take the volume of motor fuels ordered and shall employ good management practices
to prevent spill and overfill discharges of motor fuel products at the Marketing Premises.
13. Compliance with Laws. Seller shall be responsible for compliance with all laws
and regulations pertaining to underground storage tanks, including obtaining all necessary
registrations, licenses and permits, to the extent set forth in the Environmental Indemnity and
Service Agreement between Seller and Buyer. Buyer shall be solely responsible for complying
with all applicable laws, regulations and rules of all governmental authorities regarding:
a. reporting and paying all taxes.
b. maintenance and cleanliness of the Marketing Premises.
C. compliance with laws pertaining to the hiring, discharge and compensation of
employees.
{ d. compliance with US Department of Labor Regulations.
e. polluting water, ground and air with any substance or product.
f. waste handling.
g. vapor recovery equipment.
h. posting and certifying of required octane and motor fuel requirements.
i. the Clean Air Act.
14. Claims: Bar Date; Dama eg s Release. Seller shall have no liability to Buyer for any
alleged defect in quality or errors in quantity of any motor fuel products delivered ("Claim")
unless (A) Buyer gives Seller written notice of Buyer's Claim within: (i) two (2) business days
after delivery for errors in quantity of products or (ii) within four (4) business days after
discovery of alleged quality deficiencies; and (B) with respect to quality Claims, Buyer provides
Seller with reasonable opportunity to inspect the motor fuel products and take test samples. Any
11-22-o2
607772.9 7/21/05 q
other Claim by Buyer of any kind, based on or arising out of this Agreement or otherwise, shall
be waived and barred unless Seller is given written notice within ninety (90) days after the event,
action or inaction to which such Claim relates. 'In no event shall Seller be liable for lost profits
or for special, indirect or consequential damages, except as otherwise provided by applicable
law.
15. Force Maieure. Seller shall be excused from delay or nonperformance hereunder if it
is unable to meet Buyer's demand for motor fuel products if UNI-MART has diverted certain
supplies from such distribution points in order to alleviate shortages at other distribution points
or has otherwise exhausted or reduced the availability of motor fuel products. Either party shall
be excused from delay or nonperformance in the event of any condition whatsoever beyond said
party's reasonable control, including without limitation, unavailability, failure, or delay of
transportation; Acts of God; labor difficulties; explosions; storms; breakdown of machinery or
equipment; fire; riot, terrorist or war conditions in this or any other country; or compliance with
any law or governmental order, regulation recommendation, request or allocation program
(whether voluntary or involuntary), which directly or indirectly affects said party's ability to
perform hereunder.
In the event of any of the conditions referred to in the paragraph above, Seller shall
have the right to curtail deliveries or allocate its supply of motor fuel products for sale among its
customers in any manner, which, in its sole discretion, it determines to be fair and reasonable
under the circumstances, and shall not be obligated to obtain or purchase other supplies of motor
fuel products or to in any way make up any motor fuel products not delivered. Buyer shall not
hold Seller responsible in any manner for any losses or damages suffered by Buyer as a result of
any such curtailment or allocation by Seller.
11-22-02 10
607772.97121105
{ 16. Indemni . Buyer shall defend, indemnify and hold Seller, its agents, servants,
employees, successors, and assigns, harmless from and against any fines, penalties, charges, or
expense, for violation of any law, ordinance or regulation, caused by any act or omission,
whether negligent or otherwise, of Buyer or its agents, servants, or employees.
Seller shall defend, indemnify and hold Buyer, its agents, servants, employees,
successors, and assigns, harmless from and against any fines, penalties, charges, or expenses, for
violation of any law, ordinance or regulation, caused by any act or omission, whether negligent
or otherwise, of Seller or its agents, servants, or employees.
17. Expenses: Permits. Except as otherwise provided in this Agreement, Buyer shall pay
all expenses, taxes, and fees in connection with the maintenance and operation of the Marketing
Premises and the business conducted thereon, and shall comply with all applicable governmental
laws and regulations. Such expenses shall include a monthly fee imposed by Seller for Buyer's
access to and use of the POS network, if applicable. Seller and Buyer shall pay for the expenses
and fees of permits and licenses as provided in the Lease Agreement.
18. Defaul Termination,. Non-Renewal Notice Ri ht of Termination Due to
Governmental Rights.
(a) Default. If Buyer is in default of any terms or conditions hereunder or under the
Lease Agreement, Seller may suspend deliveries during such period of default and may terminate
or non-renew as provided hereunder or as otherwise provided by law.
(b) Termination or Non Renewal of Agreement and Relationship.
(i) This Agreement is subject to and governed by the Petroleum Marketing
Practices Act, which is made a part of this Agreement for purposes of expressing the
grounds upon which it may be terminated or non-renewed by the Seller. Seller's right to
11
11-22-02
6U7772.9 7121/05
terminate or non-renew under the Act shall be in addition to, and not in extinguishment
of, all other rights and remedies provided in favor of Seller by applicable law and this
Agreement. Therefore, if Buyer fails substantially to comply with, or violates, any
material requirement imposed upon the Buyer in this Agreement, Seller may terminate or
non-renew as permitted.
(ii) Prior to the end of the term of this Agreement, Seller may decide to renew
and continue the Agreement, on the basis of proposed changes and additions to the
provisions hereof, and shall advise Buyer of same. All such changes and additions
proposed by Seller shall be the result of determinations made by Seller in good faith and
in the normal course of business. Should the parties fail to agree upon such changes and
additions, Seller shall have the right, upon notice to Buyer, to non-renew this Agreement.
Should the parties agree upon such changes and additions, the Agreement shall be
renewed, subject to and in accordance with the agreed changes and additions, and the
execution by both parties of a renewal agreement.
(iii) Seller shall have thirty (30) days after termination or non-renewal to enter
upon the Buyer's Marketing Premises at any time during normal business hours, for the
purposes of taking possession and of removing Seller's loaned equipment, including
dispensing equipment, credit card equipment and signs.
(c) Notice. Should any circumstance occur constituting grounds for termination or non-
renewal of this Agreement, including but not limited to those set forth in subparagraph (a) and
(b) of this paragraph 18, Seller shall give Buyer and Buyer's primary lender (if known by Seller)
thirty (30) days prior written notice thereof stating the reasons therefor and the date on which
termination or non-renewal shall take effect.
11-z2-o2 12
607772.9 7/21105
(d) Right of Termination Due to Government Action. If any federal, state or local
government action results in the adoption of orders, rulings, regulations, or laws that (i)
significantly alter the reasonable expectations of the parties at the time of entering into this
Agreement, or (ii) result in the imposition of any obligation upon Buyer to install or construct
equipment, facilities, or improvements on the Marketing Premises and, in Buyer's judgment, the
cost of installation and construction would be uneconomical, or (iii) modify in any way the
present relationship between Seller and UNI-MART, then either party may terminate this
Agreement upon not less than one hundred and eighty (180) days' written notice to the other
party.
19. Credit Cards. The terms and conditions for administration of credit cards are set
forth on the Commodity Schedule, attached hereto. The Buyer is permitted to accept any credit
cards as long as Buyer follows all appropriate UNI-MART credit card guidelines. The Buyer
t
will be responsible for any chargebacks resulting from non-compliance with the UNI-MART
credit card guidelines.
20. Labeling _and Pasting. Buyer shall comply with all health, labeling or pasting
requirements of any governmental agency, manufacturer, Seller or the UNI-MART.
21. Representations and Assurances. Seller has entered into this Agreement in reliance
on Buyer's representations to Seller of its desire to operate a retail facility selling UNI-MART
brand products at the Marketing Premises. Furthermore, Buyer represents to Seller that it will
conduct its business so as to maintain and enhance the public acceptance of UNI-MART
trademarks and products. Buyer agrees to use its best good faith efforts to promote and
maximize the sale of Seller's products, and to refrain from conduct, which will detract from the
value of UNI-MART trademarks. Except as otherwise expressly provided herein, at all times,
11-22-02 13
607772.9 7121/05
Buyer shall keep visible and legible UNI-MART logos, signs, trademarks, and brand names
which are affixed to, located upon or associated with pumps, signs, or merchandising equipment
used in connection with the sale of UNI-MART products at Buyer's Marketing Premises. The
obligations assumed by Buyer herein are the very essence of this Agreement, and Buyer's failure
or refusal to comply therewith shall constitute grounds for termination or non-renewal of this
Agreement.
22. Relationship of Seller and Buver. Buyer is an independent business, and nothing in
this Agreement shall be deemed as creating any right for Seller to exercise any control over, or to
direct in any respect, the conduct or management or Buyer's business. Neither Buyer nor any
person performing work at the Marketing Premises for, or on behalf of, Buyer shall be deemed
an employee or agent for Seller.
23. Notices. All notices hereunder shall be in writing and shall be sent by certified or
4.
registered mail, return receipt requested, to the address specified in the opening paragraph of this
Agreement, unless changed by either party pursuant to a notice hereunder. Notice shall be
deemed given on the date such notice is deposited in the United States mail, postage prepaid and
properly addressed.
24. Severability. If any provision of this Agreement, or any portion thereof, or the
application thereof to any person or circumstance is determined by a court of competent
jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the
other provisions of this Agreement.
25. Significance of Terms and Conditions. The parties hereto agree that in all respects,
the terms and conditions herein are reasonable and of material significance to the relationship of
the parties, and any breach of any term or condition by either party shall be conclusively deemed
11-2z-oz 14
607774.9 921/05
' to be material and adverse.
l
26. Entire Agreement. This instrument, including any documents incorporated
hereunder, contains the entire agreement covering the subject matter, and supersedes any prior
verbal or written contract, agreement, representation or understanding between the parties
relating to motor fuel supplies to the Marketing Premises.
27. Envoy Training. Buyer shall be required, prior to the commencement of this
Agreement, to attend that amount of training on the Envoy system so as to be deemed by Seller
competent in its operation. Failure to attend said training may result in the delay of Seller's
delivery to Buyer of motor fuel.
28. Miscellaneous. Any attempt to assign this Agreement by Buyer without Seller's
prior written consent, which shall not be unreasonably withheld, delayed or conditioned (and in
determining whether to grant such consent, Seller may consider the financial condition,
reputation and character of the proposed assignee, and its contemplated use of the Marketing
Premises), shall constitute a default under this Agreement and any such attempted assignment
shall be void. The headings of the paragraphs of the Agreement are for convenience only and in
no way limit, amplify or otherwise affect the terms and conditions herein. Seller's right to
require strict performance shall not be affected by any previous waiver or course of dealing.
No modification of this Agreement shall be binding unless in writing and signed by Seller's and
Buyer's authorized representatives.
IN WITNESS WHEREOF, the parties hereto, each intending to be legally bound hereby,
have executed this Retail Dealer Agreement the date and year first above written.
UNI-MARTS, LLC
WITNESS:
11-2s-o2 15
607772.9 7niros
r
BY: /
(os D. Sahakian
Manager
SAIMA INTERNATIONAL, INC.
BY:
Aijaz A. Shaikh
President
11-22-02
607772.9 7/21/05
16
BY:
WITNESS:
BY:?• -alr?,?1C1.,.
UNI-MARTS, LLC
COMMODITY SCHEDULE
DATED Vt -q, 2005
BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC.
PRODUCTS: MOTOR FUELS
DELIVERY POINT: 98-100 SOUTH 2nd STREET, WEST FAIRVIEW, PA 17025
GRADES: ALL GRADES
This schedule is attached to and made part of a Fuel Supply Agreement between Buyer and
Uni-Marts, LLC (the "Seller") dated f' X 2005.
1. Quantity. The quantity of Products covered by this Agreement shall be all of
Buyer's motor fuel product requirements, but in no case less than a minimum of 189,000 gallons
per year and a maximum of 220,000 gallons per year'. The maximum and minimum figures shall
be reviewed annually by Buyer and Seller. If, during any annual period of this Agreement, Buyer
fails to purchase the minimum annual quantity set forth in this Commodity Schedule, Buyer shall
pay to Seller, within thirty (30) days of the end of such annual period, an amount determined by
multiplying two cents ($.02) times the difference between the quantity of gallons actually
purchased during such annual period and the minimum annual quantity of gallons as set forth in
this Commodity Schedule.
2. Delivery. The Delivery shall be complete on the unloading of the transport truck at
the Buyer's Marketing Premises.
' If a gallonage number is filled in below, Buyer agrees that the Initial Term of the Fuel Supply Agreement shall be
extended, if necessary, until Buyer has sold the following total number of motor fuel product gallons at the Marketing
Premises:
N/A gallons
607724.6 7/21/06
3. Price. The price to be paid by Buyer per gallon shall be Seller's tank wagon price,
(the "Delivered Price"), which is defined as: (1) UNI-MART Rack price for the closest terminal
that offers the best price as quoted through DTNergy (or similar data service provider), (2)
applicable taxes, (3) reasonable hauling charges, which shall not exceed Seller's actual hauling
charges, (4) split load charges (if applicable), (5) delivery surcharges for Sunday and holiday
deliveries, (6) any applicable state Superfund charges, (7) delivery surcharge for increased fuel cost
to hauling company (if applicable), and (8) two cents per gallon. Invoice from Seller to Buyer will
set forth the gallons delivered multiplied by the Delivered Price, plus the applicable EFT bank fees
(the "Invoice Amount").
4. Credit Cards. All credit card purchases will be directly credited to Seller by
PAYMENTECH. Seller will credit Buyer's account by electronic fund transfer ("EFT") into the
provided bank account.
5. Deposit. Buyer will deposit with Seller a $15,000 Collateral Deposit in accordance
with terms of the attached Collateral Deposit Agreement.
6. Payment Terms. The Buyer will pay 100% of the Invoice Amount, less credit card
receipts by Seller for transactions with Buyer through the day before the applicable date of
delivery, by EFT from Buyer's provided bank account one day after delivery date for deliveries
made on normal business days (Monday through Thursday). For deliveries made on Friday,
Saturday, Sunday or a legal holiday, Buyer will pay 95% of the estimated Invoice Amount, less
credit card receipts by Seller for transactions with Buyer through Thursday, by EFT on Friday, with
the remaining balance EFT'd on the next business day. The EFT will be initiated by the Seller for
the total amount due from the Buyer's bank account. Buyer is responsible for all bank fees
associated with the EFT.
607724.6 7/21105
7. Rent Credit. From time to time Seller may receive a cash payment term discount
from certain oil companies and/or distribution companies which supply motor fuel products to
Seller (the "Cash Payment Discount"). Buyer and Seller acknowledge that they have both also
entered into a Lease or Sublease permitting Buyer to occupy the Marketing Premises (the "Property
Lease"). Seller agrees to provide a credit equal to any such Cash Payment Discount to Buyer in the
form of a credit toward Buyer's immediately succeeding monthly rent obligation under the
Property Lease. Any such credit will be accounted for and delivered to Buyer in the form of a
notice of credit against the next monthly rent installment due to Seller. In the event that Seller is no
longer the landlord. at the Marketing Premises, Seller will provide a credit to Buyer on the
immediately succeeding Invoice Amount hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Commodity Schedule on
the date provided above.
UNI-MARTS, LLC
By:
Its:
SAIMA INTERNATIONAL, INC.
By: R61V
Its: President
607724.6 7121/05
UNI-MARTS, LLC
COMMODITY SCHEDULE
DATE WJI? , 2005
BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC.
PRODUCTS: KEROSENE
DELIVERY POINT: 98-100 SOUTH 2nd STREET, WEST FAIRVIEW, PA 17025
This schedule is attached to and made part of a Fuel Supply Agreement between Buyer and
Uni-Marts, LLC (the "Seller") dated 32005.
1. Quantity. The quantity of Products covered by this Agreement shall be all of
Buyer's kerosene product requirements.
2. Delivery. The Delivery shall be complete on the unloading of the tank wagon or
transport truck at the Buyer's Marketing Premises.
3. Price. The price to be paid by Buyer per gallon shall be Seller's tank wagon price,
(the "Delivered Price"), which is defined as: (1) Seller's Rack price for the closest terminal that
offers the best price as quoted through DTNergy (or similar data service provider), (2) applicable
taxes, (3) reasonable hauling charges, which shall not exceed Seller's actual hauling charges, (4)
split load charges (if applicable), (5) delivery surcharges for Sunday and holiday deliveries, (6) any
applicable state Superfund charges, (7) delivery surcharge for increased fuel cost to hauling
company (if applicable), and (8) two cents per gallon. Invoice from Seller to Buyer will set forth
the gallons delivered multiplied by the Delivered Price, plus the applicable EFT bank fees (the
"Invoice Amount").
607899.2 MUM
4. Payment Terms. The Buyer will pay 100% of the Invoice Amount, less credit card
receipts by Seller for transactions with Buyer through the day before the applicable date of
delivery, by EFT from Buyer's provided bank account one day after delivery date for deliveries
made on normal business days (Monday through Thursday). For deliveries made on Friday,
Saturday, Sunday or a legal holiday, Buyer will pay 95% of the estimated Invoice Amount, less
credit card receipts by Seller for transactions with Buyer through Thursday, by EFT on Friday, with
the remaining balance EFT'd on the next business day. The EFT will be initiated by the Seller for
the total amount due from the Buyer's bank account. Buyer is responsible for all bank fees
associated with the EFT.
IN WITNESS WHEREOF, the parties hereto have executed this Commodity Schedule on
the date provided above.
{
By:
Its:
SAIMA INTERNATIONAL, INC.
By:
Its: President
6078692 7121/05
Site No.: 04255
Location: 98-100 South 2nd Street
West Fairview. PA 17025
County: Cumberland
COLLATERAL DEPOSIT AGREEMENT
FOR AND IN CONSIDERATION of the mutual benefits accruing and expected to
accrue hereunder, UNI-MARTS, LLC of 477 East Beaver Ave., State College, PA ("Seller") and
SAIMA INTERNATIONAL, INC., having a place of business at 2203 Glen Allen Avenue, Apt
T-2, Silver Spring, MD 20906 ("Buyer"), intending to be legally bound, hereby agree as
follows:
BACKGROUND
1. Seller and Buyer are parties to a Fuel Supply Agreement of even date herewith
("Agreement"), which provides, in part, for the purchase and sale of motor fuel products.
2. Buyer's obligation to pay for motor fuel products purchased from Seller are to be secured
by either a Cash Deposit or an Irrevocable Letter of Credit as defined herein (the "Collateral
Deposit") in accordance with the terms of the Agreement.
t 3. The purpose of this Collateral Deposit Agreement is to set forth the terms and conditions
of such Collateral Deposit.
Terms
1. Buyer has undertaken, and intends to undertake certain and varied financial obligations to
the Seller, whereby Buyer will become indebted to Seller from time to time for or on account of
the purchase of motor fuel products.
2. In order to secure the prompt and full payment of such indebtedness in accordance with
the Agreement, Buyer has deposited with Seller a cash deposit in the amount of $15,000 ("Cash
Deposit") at or before signing of the Agreement. In lieu of the Cash Deposit, Buyer may, at its
option, provide Seller with an Irrevocable Letter of Credit under terms satisfactory to Seller (the
"ILC") and for the benefit of Seller equal to twice the amount of the Cash Deposit at or before
signing of the Agreement. Seller in its sole discretion may require the Cash Deposit, or the
amount of the ILC, to be increased or decreased during the term of this Agreement due to price
fluctuations of motor fuel products. Buyer agrees to fund the additional Cash Deposit or
increase/decrease the amount of the ILC within fifteen (15) business days of Seller's written
notice to Buyer of any such request.
3. Buyer shall pay to Seller any indebtedness whatsoever, which Buyer owes to Seller, by
reason of any obligation now or hereinafter undertaken by Buyer in favor of Seller under the
Agreement.
610830.2 7/21105
4. The Collateral Deposit shall be held by the Seller as one general continuing collateral
security for the discharge and payment of all or any part of any present, past or future obligation,
indebtedness or liability of the Buyer to the Seller under the Agreement.
5. Buyer hereby authorizes Seller to apply the Collateral Deposit to payment of any
obligation, indebtedness, liability or tax outstanding of Buyer to Seller, or for which Seller may
become liable at any time during, or at the end of, the relationship between Buyer and Seller.
6. Seller shall be the sole determiner of disposition of the Collateral Deposit. Seller's
disposition of the Collateral Deposit shall not release Buyer from any obligation in Buyer's
contractual relationship with Seller. If Buyer shall be in default at any time of requirements set
forth in the Agreement, Seller shall have the right, in addition to any other remedy, to correct
said default and deduct any cost or expense therewith from the Collateral Deposit. Immediately
upon the application of such amount by Seller, Buyer shall pay to Seller an amount equal to that
portion so applied so as to restore the Collateral Deposit to the amount set forth above.
7. At the end of the Agreement, including payment of all indebtedness and liabilities due or
payable to Seller by Buyer, Seller shall return to Buyer any Collateral Deposit funds or unapplied
balance thereof, unless a new Agreement is signed by both parties.
IN WITNEEREOF, the parties have agreed to the terms of this Collateral Deposit
Agreement on thisay of 2005.
t..
UNI-MARTS, LLC
By:
Its: Mat er
SAIMA INTERNATIONAL, INC.
By:
Its: Presiden
61083017/21/05
Site No.: 04255
Location: 98-100 South 2nd Street
West Fairview, PA 17025
County: Cumberland
TRADEMARK LICENSE AGREEMENT
Trademar License Agreement ("Agreement") is made and entered into as
of th i day of '2005, by and between SAIMA INTERNATIONAL, INC.,
a Pennsylvania corpo on whose address is 2203 Glen Allen Avenue, Apt T-2, Silver
Spring, MD 20906 ("Purchaser") and Uni-Marts, LLC, a Pennsylvania limited liability
company with its principal place of business located at 477 East Beaver Avenue, State
College, Pennsylvania 16801-5690 ("Uni-Marts"). Purchaser acknowledges and
agrees that this Agreement is conditioned upon, and shall not be effective until, the
closing of the transactions under that certain Purchase and Sale Agreement and Lease
or Sublease ("Lease") by and between Uni-Marts and Purchaser (the "Closing"). Now,
therefore, Uni-Marts and Purchaser, intending to be legally bound hereby, agree as
follows:
1. Definitions. As used herein, "Marks" means the "Uni-Marts" and "Choice
Cigarette Discount Outlet' names, logos and certain related trade names, trademarks
and logotypes as identified by Uni-Marts in writing from time to time; "Know-How"
means certain proprietary approaches, initiatives, methods, procedures, processes,
concepts, materials, trade secrets, and know-how of Uni-Marts with respect to operation
of convenience stores; and, "Documentation" means the Specifications (as defined
herein) and all other instructions, manuals, diagrams and other materials, in whatever
medium or format, pertaining to the Marks, Know-How and/or the use thereof.
2. Trademark License. From and after the Closing, Uni-Marts hereby grants
Purchaser a non-exclusive, non-transferable, limited license, without the right to
sublicense, to use the Marks, the Know-How and the Documentation solely in
connection with the operation of the facilities identified above (the "Facilities") and not in
connection with any other business or facility or for any other purpose whatsoever (the
"Trademark License"). Purchaser may not sell, lease, assign, sublicense or otherwise
transfer, in whole or in part, this Agreement, the Trademark License, the Marks, the
Know-How, the Documentation or any other Uni-Marts-provided materials, or any
licenses or rights granted hereunder without the express written consent of Uni-Marts,
which consent shall not be unreasonably withheld (but in determining whether to grant
such consent, Uni-Marts may consider the financial condition, reputation and character
of the proposed transferee, and its contemplated use of the Facilities).
3. Obligations of Purchaser.
610315.17/21105
a. In addition to its other obligations set forth herein, during the term of
this Agreement, Purchaser shall do each of the following:
i. use the Marks and the Know-How in strict compliance with
all current standards, specifications and procedures of Uni-Marts (the "Specifications"),
together with such future modifications to the Specifications as are necessary or
desirable for Uni-Marts' business purposes and provided in advance to Purchaser;
ii. advertise and promote the Facilities only under the Marks
and without any accompanying words or symbols except as approved by Uni-Marts in
writing;
iii. impose on all signs, advertising and other materials using or
incorporating the Marks prepared by or for Purchaser, other than by Uni-Marts (the
"Purchaser-Prepared Materials"), the symbol ® or "TM", as the case may be, and cause
all such Purchaser-Prepared Materials to use and reproduce the Marks accurately and
exactly, in a manner which will best protect Uni-Marts' rights in the Marks; and
iv. in all public records and in its relationship with other persons,
and on its letterhead and business forms, clearly indicate its independent ownership
and operation of the Facilities.
b. Purchaser shall not at any time:
L adopt a corporate or other fictitious entity name
incorporating, in whole or in part, any of the Marks;
ii. lend its name or use any of the Marks, Know-How or
Documentation to endorse the products or services of any third parties;
iii. represent or hold itself out as an agent, legal representative,
partner, subsidiary, joint venturer, associate, affiliate or employee of Uni-Marts; or,
iv. operate the Facilities in a way that is damaging to Uni-Marts;
that causes any threat or danger to public health or safety; that would tend to bring Uni-
Marts or the Marks, Know-How or Documentation into public disrepute, contempt,
scandal or ridicule; that would tend to insult or offend the community in which such
Facilities are located, or any group or class thereof; or, that would or might adversely
affect the relationship between Uni-Marts and its customers and/or Purchasers.
C. Uni-Marts shall have the right to enter into and inspect the
Facilities, with or without notice, during Purchaser's normal business hours, for the
purpose of ascertaining Purchaser's compliance with the terms of this Section 3.
610315.17/21/05
_2_
4. Obligations of Uni-Marts. During the term of this Agreement, Uni-Marts
shall provide
a. use by Purchaser of Uni-Marts' 1-800 support telephone number;
and
b. access to Purchaser, Purchaser's primary lender for the purchase
of the Facilities ("Lender") and (if applicable) the U.S. Small Business Administration
("SBA"), upon request and during regular business hours, to Uni-Marts' pertinent billings
and collections records relating to the Payments.
5. Payments. In consideration of the Trademark License and the 1-800
support hereunder, Purchaser shall pay Uni-Marts Two Hundred dollars ($200.00) per
Facility per month (the "Payments"). Licensee shall make the Payments to Uni-Marts
within ten (10) days after the end of each month for that month.
The Payments to Uni-Marts shall be deferred during such period of time as
Lender's loan to Purchaser is in default or Lender or the SBA has granted a deferment,
but any deferred Payments shall be immediately due and payable to Uni-Marts at the
conclusion of such period.
( 6. Payment: Taxes. Any sum not paid by Purchaser hereunder when due
shall bear interest until paid at a rate of 1.5% per month (18% per annum), or the
maximum rate permitted by law, whichever is less. Purchaser shall also pay all
expenses (including, without limitation, attorneys' fees) actually incurred by Uni-Marts in
collecting such payment or otherwise exercising its rights and remedies hereunder.
Purchaser acknowledges and agrees that it is not entitled to set-off any monetary claims
which it may have against Uni-Marts against the Payments or any other sum which the
License is obligated to pay hereunder.
7. Proprietary Rights.
a. The Marks are trademarks or registered trademarks of Uni-Marts.
Purchaser shall not at any time use any word or mark which is similar to or is likely to be
confused with the Marks without Uni-Marts' prior written consent. During the term of
this Agreement and thereafter, Purchaser shall not directly or indirectly impugn or
contest the validity of or Uni-Marts' ownership of the Marks or take or aid any action
whatsoever in derogation of the Marks. Any and all goodwill generated by the use of
the Marks will inure solely to the benefit of Uni-Marts. Samples of all Purchaser-
Prepared Materials must be submitted to Uni-Marts for written approval prior to use.
b. Title to the Know-How and the Documentation, and all
modifications, updates and derivative works thereof, whether created by Uni-Marts,
610] 15.1 781/05 _3_
Purchaser, or any third party, shall at all times remain and vest solely with Uni-Marts.
Uni-Marts shall have the exclusive right to patent, copyright, register and protect such
materials in Uni-Marts' own name to the exclusion of Purchaser, whose rights thereto
are limited to its rights as a Purchaser under this Agreement. Purchaser agrees that it
will not claim or assert title to any such materials or attempt to transfer title to same to
any third parties.
C. Purchaser shall at all times do all acts, and where appropriate
refrain from such acts, as may be necessary or appropriate to protect Uni-Marts'
proprietary rights in and to the Marks, Know-How and Documentation. Purchaser shall
not have, and this Agreement shall not be construed as granting, any right, title or
interest in or to any of Uni-Marts' proprietary and intellectual property rights (including
patent, trademark, copyright, trade secret and other rights) not expressly licensed to
Purchaser under this Agreement.
8. Confidential Information. During the course of the parties' performance
hereunder, Purchaser may be given, obtain, or have access to certain information which
is confidential and proprietary to Uni-Marts and/or which constitutes trade secrets of
Uni-Marts, including, without limitation, the Know-How, Specifications, Documentation
and other technical, marketing, sales, operating and cost information and know-how
("Confidential Information"). Confidential Information shall not include any information
which
i. is or becomes available to the public other than as the
consequence of a breach of any obligation of confidentiality;
ii. is actually known to or in the possession of Purchaser
without any limitation on use or disclosure prior to receipt from Uni-Marts; or
iii. is rightfully received from a third party in possession of such
information who is not under obligation to Uni-Marts not to disclose the information.
Purchaser shall hold in strict confidence and trust all Confidential
Information and shall not disclose, sell, rent or otherwise provide or transfer, directly or
indirectly, any Confidential Information or anything related to the Confidential
Information to third parties, without the prior written consent of Uni-Marts. Purchaser
shall use the Confidential Information only in accordance with the terms and provisions
of this Agreement, and not for any other purpose whatsoever. Notwithstanding the
foregoing, Purchaser will be permitted to disclose Confidential Information pursuant to a
court order, government order or any other legal requirement of disclosure if no suitable
protective order or equivalent remedy is available, provided that Purchaser gives Uni-
Marts written notice of such court order, government order or legal requirement of
disclosure immediately upon knowledge thereof and allows Uni-Marts a reasonable
' opportunity to seek to obtain a protective order or other appropriate remedy prior to
610315.17/21/05
-4-
such disclosure to the extent permitted by law, and further provided that Purchaser shall
furnish only that portion of the Confidential Information which Purchaser is advised by a
written opinion of counsel is legally required. Upon termination of this Agreement, or
upon earlier request by Uni-Marts, Purchaser shall promptly return to Uni-Marts or, at
Uni-Marts' option, destroy any and all Confidential Information, including all copies or
duplicates thereof.
9• E unable Relief. Purchaser understands that in the event Purchaser fails
to comply with the provisions of Sections 2, 3, 7 and 8 hereof, Uni-Marts shall suffer
irreparable harm which would not be adequately compensated for by monetary
damages alone. Purchaser, therefore, agrees that in the event of a breach or
threatened breach of any of such provisions by Purchaser, Uni-Marts shall be entitled to
injunctive and/or other preliminary or equitable relief, in addition to any other remedies
available at law, without having to prove actual damages or to post a bond.
10. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants that:
a. Purchaser is duly organized and validly subsisting under the laws of
the state identified above and has the full power and authority to enter into this
Agreement;
b. the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by
all necessary action by and on behalf of Purchaser, and this Agreement constitutes the
valid and binding obligation of Purchaser, enforceable against it in accordance with its
terms;
C. the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, do not, with or without the
giving of notice, the lapse of time or both:
(where appropriate), result in a violation of Purchaser's organizational documents
. contravene or with, or constitu a judgment, injunction,ilorder or decree b nd gnupon or applicable to Purchaserof, any
e,
party, or iii. require any consent, approval or other action by any third
iv. contravene or conflict with, or constitute a violation of, any
agreement to which Purchaser is a party or by which Purchaser is bound.
610315.1 7!21/05
-5-
11. Acknowledgements. Purchaser and Uni-Marts hereby further
acknowledge and agree that the Payments made by Purchaser to Uni-Marts hereunder
are solely in consideration of the Trademark License and 1-800 support provided by
Uni-Marts hereunder.
12. Term and Termination.
a. The term of this Agreement shall be the same as the term of the
Lease between Uni-Marts and Purchaser.
b. Notwithstanding Section 12.a. hereof, this Agreement may be
terminated as follows:
i- by either party, in the event the other party has breached a
covenant, obligation or warranty under this Agreement and such breach remains
uncured for a period of thirty (30) days after notice thereof is sent to such other party
and, in the case of Purchaser's default, to Lender and the SBA, who shall have the
same opportunity to cure such default;
ii. by either party, without notice, in the event the other party
ceases to conduct business;
iii. by either party, without notice, should the other party admit
in writing its inability to pay its debts generally as they become due; make a general
assignment for the benefit of creditors; institute proceedings to be adjudicated a
voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; be
adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; seek
reorganization under any bankruptcy act, or consent to the filing of a petition seeking
such reorganization; or, have a decree entered against it by a court of competent
jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in
insolvency covering all or substantially all of such party's property or providing for the
liquidation of such party's property or business affairs; or
iv. by Uni-Marts, immediately upon a breach by Purchaser of
Section 2, 3, 7 or 8 hereof. If any applicable law requires a greater notice of the
termination of, or the election not to renew, this Agreement, or the taking of some other
action with respect to such termination or election not to renew than is required by the
Agreement, such requirements of law shall be deemed substituted for the notice
requirements contained in this Agreement.
C. Upon termination of this Agreement by either party, Purchaser shall
immediately pay to Uni-Marts all sums payable under this Agreement, including, without
limitation, all Payments accruing through the effective date of termination, without setoff
610315.17/21/05
-6-
or reduction of any kind. Termination of this Agreement will terminate the Lease, the
Trademark License and all other rights granted by Uni-Marts to Purchaser hereunder.
Upon such termination, Purchaser shall immediately cease use of the Marks, return any
Uni-Marts-provided materials to Uni-Marts and return to Uni-Marts or, at Uni-Marts'
option, destroy all Purchaser-Prepared Materials using or incorporating the Marks. After
expiration or termination of this Agreement, Purchaser shall not operate or do business
under any name or in any manner or style that might tend to give the general public the
impression that it is, either directly or indirectly, associated, affiliated, licensed by or
related to Uni-Marts; and upon such expiration or termination, Uni-Marts may, if
Purchaser does not do so, execute in Purchaser's name and on its behalf any and all
documents necessary or appropriate in Uni-Marts' judgment to end and cause the
discontinuance of Purchaser's use of the Marks, and Uni-Marts is hereby irrevocably
appointed and designated as Purchaser's attorney-in-fact to do so.
d. All provisions hereof that are intended by their terms to survive
termination or expiration of this Agreement, including, without limitation, Sections 3.b, 5,
6, 7, 8, 9, 10, 11, 12, 12c, 12d, 13, 14, 15 and 16 hereof, shall survive such termination
or expiration.
13. DISCLAIMER OF WARRANTIES: LIMITATION OF LIABILITY. UNI-
MARTS SHALL PROVIDE TO PURCHASER CERTAIN WARRANTIES OF TITLE AND
OTHER WARRANTIES PURSUANT TO THE PURCHASE AND SALE AGREEMENT
AND THE TRANSACTION DOCUMENTS (AS DEFINED IN THE PURCHASE AND
SALE AGREEMENT), AND WARRANTIES OF NON-INFRINGEMENT HEREUNDER.
UNI-MARTS DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY
AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH REGARD TO THE TRADEMARK LICENSE, MARKS,
KNOW-HOW, SPECIFICATIONS, OR DOCUMENTATION. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UNI-MARTS BE
LIABLE TO PURCHASER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF INCOME, PROFITS OR ANY OTHER
PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THE
TRADEMARK LICENSE, MARKS, KNOW-HOW, SPECIFICATIONS, OR
DOCUMENTATION, EVEN IF UNI-MARTS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. UNI-MARTS' ENTIRE LIABILITY TO
PURCHASER AND/OR ANY THIRD PARTY SHALL BE LIMITED, IN THE
AGGREGATE, TO THE PAYMENTS PAID BY PURCHASER HEREUNDER.
14. Infringement Indemnification. Uni-Marts shall indemnify, defend and hold
harmless Purchaser from and against any claim by any third party that Purchaser's use
of the Marks, Know-How and/or Documentation in accordance with the terms hereof
infringes any United States patent, trademark or copyright; provided, however, that
Purchaser promptly notifies Uni-Marts of such claim in writing. Uni-Marts shall have the
610315.17/21/05
-7_
right to defend and settle any such claim, and Purchaser shall not enter into any
l settlement or other agreement with respect to same without the prior written consent of
Uni-Marts. Purchaser may participate in the defense of such claim at its own expense.
15. Purchaser Indemnification and Insurance. Purchaser shall indemnify,
defend and hold harmless Uni-Marts, its officers, managers, members, employees,
agents and legal representatives from and against any and all losses, liabilities, claims,
actions, damages, demands, costs and expenses (including, without limitation,
attorneys' fees and court costs) ("Losses") arising, directly or indirectly, out of or in
connection with
a. a breach of any representation, warranty or covenant of Purchaser
hereunder,
b. the operation of the Facilities,
c. the preparation, offer for sale or sale of merchandise by Purchaser,
or
d. any acts or omission of Purchaser, its officers, directors,
shareholders, members, managers, partners, employees, agents or contractors.
During the term hereof, Purchaser shall procure and maintain in full force
and effect comprehensive general liability insurance (including contractual liability
insurance sufficient to cover Purchaser's obligations pursuant to this section), statutory
workers' compensation and employer's liability insurance, and all other forms of
insurance, in such amounts and having such deductibles, as is necessary or
appropriate to the operation of Purchaser's business and its performance hereunder, in
accordance with all Laws and industry standards. All such policies shall name Uni-
Marts as an additional named insured, and shall contain an endorsement requiring the
insured and insurer to give Uni-Marts thirty (30) days advance written notice before any
termination or cancellation of such policy will be effective. Purchaser shall promptly
deliver certificates of all insurance to Uni-Marts, as such insurance is procured or
renewed by Purchaser.
16. Miscellaneous. This Agreement is the sole and entire agreement between
the parties relating to the subject matter hereof, and supersedes all prior
understandings, agreements, and documentation between the parties with respect
thereto. This Agreement may be amended only by a written instrument executed by the
authorized representatives of both parties. This Agreement shall be interpreted in
accordance with the substantive law of the Commonwealth of Pennsylvania, without
regard to Pennsylvania's principles regarding conflict of laws. The state and federal
courts located in Pennsylvania shall have exclusive jurisdiction over any and all
disputes arising out of or in connection with this Agreement, and Purchaser and Uni-
610315.1 7/21/05
-8-
Marts each hereby consents to the personal jurisdiction of such courts. Uni-Marts and
Purchaser are independent contractors under this Agreement, and nothing herein shall
be construed to create a partnership, joint venture, or agency relationship between the
parties hereto. Neither party shall have any power or authority to enter into agreements
of any kind on behalf of, or to otherwise bind or obligate, the other party in any manner
to any third party. The provisions set forth in this Agreement are for the sole benefit of
the parties hereto and their successors and permitted assigns, and they shall not be
construed as conferring any rights on any other persons, except as expressly provided
in Section 15 hereof. All notices, consents, waivers or other communications which are
required or permitted hereunder shall be sufficient if given in writing to the parties at the
addresses set forth above (or to such other address as shall be set forth in a notice
given in the same manner) and shall be deemed to have been given three (3) business
days after mailing if sent by registered or certified mail (postage prepaid), one business
day after mailing if sent by overnight mail service, or on the date delivered or
transmitted if delivered personally or sent by facsimile transmission (receipt confirmed).
Neither party shall by mere lapse of time without giving notice or taking other action
hereunder be deemed to have waived any breach by the other party of any provision of
this Agreement. Further, the waiver by either party of a particular breach of this
Agreement by the other party shall not be construed as, or constitute, a continuing
waiver of such breach, or of other breaches of the same or other provisions of this
Agreement. If any provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local government having jurisdiction over this
Agreement, the validity of the remaining portions or provisions hereof shall not be
affected thereby. This Agreement may be executed in one or more counterpart copies,
each of which shall be deemed an original and all of which shall together be deemed to
constitute one agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
UNI-MARTS, C
By:
Its: M a er
SAIMA INTERNATIONAL, INC.
By: 1?IIAVVI?-
Its: President
610315.17121105
_9_
Exhibit C
Site No.: 04255
Location: 98-100 South 2nd Street
West Fairview, PA 17025
County: Cumberland
TRADEMARK LICENSE AGREEMENT
Trademark License Agreement ("Agreement") is made and entered into as
of th i ? day of ?Yr
('2005, by and between SAIMA INTERNATIONAL, INC.,
a Pennsylvania corpo on whose address is 2203 Glen Allen Avenue, Apt T-2, Silver
Spring, MD 20906 ("Purchaser") and Uni-Marts, LLC, a Pennsylvania limited liability
company with its principal place of business located at 477 East Beaver Avenue, State
College, Pennsylvania 16801-5690 ("Uni-Marts"). Purchaser acknowledges and
agrees that this Agreement is conditioned upon, and shall not be effective until, the
closing of the transactions under that certain Purchase and Sale Agreement and Lease
or Sublease ("Lease") by and between Uni-Marts and Purchaser (the "Closing"). Now,
therefore, Uni-Marts and Purchaser, intending to be legally bound hereby, agree as
follows:
1. Definitions. As used herein, "Marks" means the "Uni-Marts" and "Choice
Cigarette Discount Outlet" names, logos and certain related trade names, trademarks
and logotypes as identified by Uni-Marts in writing from time to time; "Know-How"
means certain proprietary approaches, initiatives, methods, procedures, processes,
concepts, materials, trade secrets, and know-how of Uni-Marts with respect to operation
of convenience stores; and, "Documentation" means the Specifications (as defined
herein) and all other instructions, manuals, diagrams and other materials, in whatever
medium or format, pertaining to the Marks, Know-How and/or the use thereof.
2. Trademark License. From and after the Closing, Uni-Marts hereby grants
Purchaser a non-exclusive, non-transferable, limited license, without the right to
sublicense, to use the Marks, the Know-How and the Documentation solely in
connection with the operation of the facilities identified above (the "Facilities") and not in
connection with any other business or facility or for any other purpose whatsoever (the
"Trademark License"). Purchaser may not sell, lease, assign, sublicense or otherwise
transfer, in whole or in part, this Agreement, the Trademark License, the Marks, the
Know-How, the Documentation or any other Uni-Marts-provided materials, or any
licenses or rights granted hereunder without the express written consent of Uni-Marts,
which consent shall not be unreasonably withheld (but in determining whether to grant
such consent, Uni-Marts may consider the financial condition, reputation and character
of the proposed transferee, and its contemplated use of the Facilities).
3. Obligations of Purchaser.
610313.17121105
a. In addition to its other obligations set forth herein, during the term of
. ,' this Agreement, Purchaser shall do each of the following:
i. use the Marks and the Know-How in strict compliance with
all current standards, specifications and procedures of Uni-Marts (the "Specifications"),
together with such future modifications to the Specifications as are necessary or
desirable for Uni-Marts' business purposes and provided in advance to Purchaser;
ii. advertise and promote the Facilities only under the Marks
and without any accompanying words or symbols except as approved by Uni-Marts in
writing;
iii. impose on all signs, advertising and other materials using or
incorporating the Marks prepared by or for Purchaser, other than by Uni-Marts (the
"Purchaser-Prepared Materials"), the symbol ® or ,TM,,, as the case may be, and cause
all such Purchaser-Prepared Materials to use and reproduce the Marks accurately and
exactly, in a manner which will best protect Uni-Marts' rights in the Marks; and
iv. in all public records and in its relationship with other persons,
and on its letterhead and business forms, clearly indicate its independent ownership
and operation of the Facilities.
b. Purchaser shall not at any time:
i. adopt a corporate or other fictitious entity name
incorporating, in whole or in part, any of the Marks;
ii. lend its name or use any of the Marks, Know-How or
Documentation to endorse the products or services of any third parties;
iii. represent or hold itself out as an agent, legal representative,
partner, subsidiary, joint venturer, associate, affiliate or employee of Uni-Marts; or,
iv. operate the Facilities in a way that is damaging to Uni-Marts;
that causes any threat or danger to public health or safety; that would tend to bring Uni-
Marts or the Marks, Know-How or Documentation into public disrepute, contempt,
scandal or ridicule; that would tend to insult or offend the community in which such
Facilities are located, or any group or class thereof; or, that would or might adversely
affect the relationship between Uni-Marts and its customers and/or Purchasers.
C. Uni-Marts shall have the right to enter into and inspect the
Facilities, with or without notice, during Purchaser's normal business hours, for the
purpose of ascertaining Purchaser's compliance with the terms of this Section 3.
610315,17121/05
-2-
. ' 4. Obligations of Uni-Marts. During the term of this Agreement, Uni-Marts
shall provide
a. use by Purchaser of Uni-Marts' 1-800 support telephone number;
and
b. access to Purchaser, Purchaser's primary lender for the purchase
of the Facilities ("Lender") and (if applicable) the U.S. Small Business Administration
("SBA"), upon request and during regular business hours, to Uni-Marts' pertinent billings
and collections records relating to the Payments.
5. Payments. In consideration of the Trademark License and the 1-800
support hereunder, Purchaser shall pay Uni-Marts Two Hundred dollars ($200.00) per
Facility per month (the "Payments"). Licensee shall make the Payments to Uni-Marts
within ten (10) days after the end of each month for that month.
The Payments to Uni-Marts shall be deferred during such period of time as
Lender's loan to Purchaser is in default or Lender or the SBA has granted a deferment,
but any deferred Payments shall be immediately due and payable to Uni-Marts at the
conclusion of such period.
( 6. Payment: Taxes. Any sum not paid by Purchaser hereunder when due
shall bear interest until paid at a rate of 1.5% per month (18% per annum), or the
maximum rate permitted by law, whichever is less. Purchaser shall also pay all
expenses (including, without limitation, attorneys' fees) actually incurred by Uni-Marts in
collecting such payment or otherwise exercising its rights and remedies hereunder.
Purchaser acknowledges and agrees that it is not entitled to set-off any monetary claims
which it may have against Uni-Marts against the Payments or any other sum which the
License is obligated to pay hereunder.
7. Proprietary Rights.
a. The Marks are trademarks or registered trademarks of Uni-Marts.
Purchaser shall not at any time use any word or mark which is similar to or is likely to be
confused with the Marks without Uni-Marts' prior written consent. During the term of
this Agreement and thereafter, Purchaser shall not directly or indirectly impugn or
contest the validity of or Uni-Marts' ownership of the Marks or take or aid any action
whatsoever in derogation of the Marks. Any and all goodwill generated by the use of
the Marks will inure solely to the benefit of Uni-Marts. Samples of all Purchaser-
Prepared Materials must be submitted to Uni-Marts for written approval prior to use.
C b. Title to the Know-How and the Documentation, and all
. modifications, updates and derivative works thereof, whether created by Uni-Marts,
610315.1 7/21/05 _3_
Purchaser, or any third party, shall at all times remain and vest solely with Uni-Marts.
Uni-Marts shall have the exclusive right to patent, copyright, register and protect such
materials in Uni-Marts' own name to the exclusion of Purchaser, whose rights thereto
are limited to its rights as a Purchaser under this Agreement. Purchaser agrees that it
will not claim or assert title to any such materials or attempt to transfer title to same to
any third parties.
C. Purchaser shall at all times do all acts, and where appropriate
refrain from such acts, as may be necessary or appropriate to protect Uni-Marts'
proprietary rights in and to the Marks, Know-How and Documentation. Purchaser shall
not have, and this Agreement shall not be construed as granting, any right, title or
interest in or to any of Uni-Marts' proprietary and intellectual property rights (including
patent, trademark, copyright, trade secret and other rights) not expressly licensed to
Purchaser under this Agreement.
8. Confidential Information. During the course of the parties' performance
hereunder, Purchaser may be given, obtain, or have access to certain information which
is confidential and proprietary to Uni-Marts and/or which constitutes trade secrets of
Uni-Marts, including, without limitation, the Know-How, Specifications, Documentation
and other technical, marketing, sales, operating and cost information and know-how
("Confidential Information"). Confidential Information shall not include any information
which
i. is or becomes available to the public other than as the
consequence of a breach of any obligation of confidentiality;
ii. is actually known to or in the possession of Purchaser
without any limitation on use or disclosure prior to receipt from Uni-Marts; or
iii. is rightfully received from a third party in possession of such
information who is not under obligation to Uni-Marts not to disclose the information.
Purchaser shall hold in strict confidence and trust all Confidential
Information and shall not disclose, sell, rent or otherwise provide or transfer, directly or
indirectly, any Confidential Information or anything related to the Confidential
Information to third parties, without the prior written consent of Uni-Marts. Purchaser
shall use the Confidential Information only in accordance with the terms and provisions
of this Agreement, and not for any other purpose whatsoever. Notwithstanding the
foregoing, Purchaser will be permitted to disclose Confidential Information pursuant to a
court order, government order or any other legal requirement of disclosure if no suitable
protective order or equivalent remedy is available, provided that Purchaser gives Uni-
Marts written notice of such court order, government order or legal requirement of
disclosure immediately upon knowledge thereof and allows Uni-Marts a reasonable
opportunity to seek to obtain a protective order or other appropriate remedy prior to
610315.1 7n1ro5
?_
such disclosure to the extent permitted by law, and further provided that Purchaser shall
furnish only that portion of the Confidential Information which Purchaser is advised by a
written opinion of counsel is legally required. Upon termination of this Agreement, or
upon earlier request by Uni-Marts, Purchaser shall promptly return to Uni-Marts or, at
Uni-Marts' option, destroy any and all Confidential Information, including all copies or
duplicates thereof.
9. Equitable Relief. Purchaser understands that in the event Purchaser fails
to comply with the provisions of Sections 2, 3, 7 and 8 hereof, Uni-Marts shall suffer
irreparable harm which would not be adequately compensated for by monetary
damages alone. Purchaser, therefore, agrees that in the event of a breach or
threatened breach of any of such provisions by Purchaser, Uni-Marts shall be entitled to
injunctive and/or other preliminary or equitable relief, in addition to any other remedies
available at law, without having to prove actual damages or to post a bond.
10. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants that:
a. Purchaser is duly organized and validly subsisting under the laws of
the state identified above and has the full power and authority to enter into this
Agreement;
b. the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by
all necessary action by and on behalf of Purchaser, and this Agreement constitutes the
valid and binding obligation of Purchaser, enforceable against it in accordance with its
terms;
C. the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, do not, with or without the
giving of notice, the lapse of time or both:
(where appropriate)i. result in a violation of Purchaser's organizational documents
,
If. contravene or conflict with, or constitute a violation of, any
judgment, injunction, order or decree binding upon or applicable to Purchaser,
party, or iii. require any consent, approval or other action by any third
iv. contravene or conflict with, or constitute a violation of, any
agreement to which Purchaser is a party or by which Purchaser is bound.
610315.17/21/05
-5-
11. Acknowledgements. Purchaser and Uni-Marts hereby further
acknowledge and agree that the Payments made by Purchaser to Uni-Marts hereunder
are solely in consideration of the Trademark License and 1-800 support provided by
Uni-Marts hereunder.
12. Term and Termination.
a. The term of this Agreement shall be the same as the term of the
Lease between Uni-Marts and Purchaser.
b. Notwithstanding Section 12.a. hereof, this Agreement may be
terminated as follows:
i. by either party, in the event the other party has breached a
covenant, obligation or warranty under this Agreement and such breach remains
uncured for a period of thirty (30) days after notice thereof is sent to such other party
and, in the case of Purchaser's default, to Lender and the SBA, who shall have the
same opportunity to cure such default;
ii. by either party, without notice, in the event the other party
! ceases to conduct business;
iii. by either party, without notice, should the other party admit
in writing its inability to pay its debts generally as they become due; make a general
assignment for the benefit of creditors; institute proceedings to be adjudicated a
.voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; be
adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; seek
reorganization under any bankruptcy act, or consent to the filing of a petition seeking
such reorganization; or, have a decree entered against it by a court of competent
jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in
insolvency covering all or substantially all of such party's property or providing for the
liquidation of such party's property or business affairs; or
iv. by Uni-Marts, immediately upon a breach by Purchaser of
Section 2, 3, 7 or 8 hereof. If any applicable law requires a greater notice of the
termination of, or the election not to renew, this Agreement, or the taking of some other
action with respect to such termination or election not to renew than is required by the
Agreement, such requirements of law shall be deemed substituted for the notice
requirements contained in this Agreement.
C. Upon termination of this Agreement by either party, Purchaser shall
immediately pay to Uni-Marts all sums payable under this Agreement, including, without
limitation, all Payments accruing through the effective date of termination, without setoff
610313.17/21/05
-6-
or reduction of any kind. Termination of this Agreement will terminate the Lease, the
Trademark License and all other rights granted by Uni-Marts to Purchaser hereunder.
Upon such termination, Purchaser shall immediately cease use of the Marks, return any
Uni-Marts-provided materials to Uni-Marts and return to Uni-Marts or, at Uni-Marts'
option, destroy all Purchaser-Prepared Materials using or incorporating the Marks. After
expiration or termination of this Agreement, Purchaser shall not operate or do business
under any name or in any manner or style that might tend to give the general public the
impression that it is, either directly or indirectly, associated, affiliated, licensed by or
related to Uni-Marts; and upon such expiration or termination, Uni-Marts may, if
Purchaser does not do so, execute in Purchaser's name and on its behalf any and all
documents necessary or appropriate in Uni-Marts' judgment to end and cause the
discontinuance of Purchaser's use of the Marks, and Uni-Marts is hereby irrevocably
appointed and designated as Purchaser's attorney-in-fact to do so.
d. All provisions hereof that are intended by their terms to survive
termination or expiration of this Agreement, including, without limitation, Sections 3.b, 5,
6, 7, 8, 9, 10, 11, 12, 12c, 12d, 13, 14, 15 and 16 hereof, shall survive such termination
or expiration.
13. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY. UNI-
MARTS SHALL PROVIDE TO PURCHASER CERTAIN WARRANTIES OF TITLE AND
OTHER WARRANTIES PURSUANT TO THE PURCHASE AND SALE AGREEMENT
:F AND THE TRANSACTION DOCUMENTS (AS DEFINED IN THE PURCHASE AND
SALE AGREEMENT), AND WARRANTIES OF NON-INFRINGEMENT HEREUNDER.
UNI-MARTS DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY
AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH REGARD TO THE TRADEMARK LICENSE, MARKS,
KNOW-HOW, SPECIFICATIONS, OR DOCUMENTATION. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UNI-MARTS BE
LIABLE TO PURCHASER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF INCOME, PROFITS OR ANY OTHER
PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THE
TRADEMARK LICENSE, MARKS, KNOW-HOW, SPECIFICATIONS, OR
DOCUMENTATION, EVEN IF UNI-MARTS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. UNI-MARTS' ENTIRE LIABILITY TO
PURCHASER AND/OR ANY THIRD PARTY SHALL BE LIMITED, IN THE
AGGREGATE, TO THE PAYMENTS PAID BY PURCHASER HEREUNDER.
14. Infringement Indemnification. Uni-Marts shall indemnify, defend and hold
harmless Purchaser from and against any claim by any third party that Purchaser's use
of the Marks, Know-How and/or Documentation in accordance with the terms hereof
infringes any United States patent, trademark or copyright; provided, however, that
Purchaser promptly notifies Uni-Marts of such claim in writing. Uni-Marts shall have the
6ID315.17rnro5
-7-
right to defend and settle any such claim, and Purchaser shall not enter into any
settlement or other agreement with respect to same without the prior written consent of
Uni-Marts. Purchaser may participate in the defense of such claim at its own expense.
15. Purchaser Indemnification and Insurance. Purchaser shall indemnify,
defend and hold harmless Uni-Marts, its officers, managers, members, employees,
agents and legal representatives from and against any and all losses, liabilities, claims,
actions, damages, demands, costs and expenses (including, without limitation,
attorneys' fees and court costs) ("Losses") arising, directly or indirectly, out of or in
connection with
a. a breach of any representation, warranty or covenant of Purchaser
hereunder,
b. the operation of the Facilities,
or c. the preparation, offer for sale or sale of merchandise by Purchaser,
d. any acts or omission of Purchaser, its officers, directors,
shareholders, members, managers, partners, employees, agents or contractors.
During the term hereof, Purchaser shall procure and maintain in full force
and effect comprehensive general liability insurance (including contractual liability
insurance sufficient to cover Purchaser's obligations pursuant to this section), statutory
workers' compensation and employer's liability insurance, and all other forms of
insurance, in such amounts and having such deductibles, as is necessary or
appropriate to the operation of Purchaser's business and its performance hereunder, in
accordance with all Laws and industry standards. All such policies shall name Uni-
Marts as an additional named insured, and shall contain an endorsement requiring the
insured and insurer to give Uni-Marts thirty (30) days advance written notice before any
termination or cancellation of such policy will be effective. Purchaser shall promptly
deliver certificates of all insurance to Uni-Marts, as such insurance is procured or
renewed by Purchaser.
16. Miscellaneous. This Agreement is the sole and entire agreement between
the parties relating to the subject matter hereof, and supersedes all prior
understandings, agreements, and documentation between the parties with respect
thereto. This Agreement may be amended only by a written instrument executed by the
authorized representatives of both parties. This Agreement shall be interpreted in
accordance with the substantive law of the Commonwealth of Pennsylvania, without
regard to Pennsylvania's principles regarding conflict of laws. The state and federal
courts located in Pennsylvania shall have exclusive jurisdiction over any and all
disputes arising out of or in connection with this Agreement, and Purchaser and Uni-
610315.17/21/05
-8-
Marts each hereby consents to the personal jurisdiction of such courts. Uni-Marts and
Purchaser are independent contractors under this Agreement, and nothing herein shall
be construed to create a partnership, joint venture, or agency relationship between the
parties hereto. Neither party shall have any power or authority to enter into agreements
of any kind on behalf of, or to otherwise bind or obligate, the other party in any manner
to any third party. The provisions set forth in this Agreement are for the sole benefit of
the parties hereto and their successors and permitted assigns, and they shall not be
construed as conferring any rights on any other persons, except as expressly provided
in Section 15 hereof. All notices, consents, waivers or other communications which are
required or permitted hereunder shall be sufficient if given in writing to the parties at the
addresses set forth above (or to such other address as shall be set forth in a notice
given in the same manner) and shall be deemed to have been given three (3) business
days after mailing if sent by registered or certified mail (postage prepaid), one business
day after mailing if sent by overnight mail service, or on the date delivered or
transmitted if delivered personally or sent by facsimile transmission (receipt confirmed).
Neither party shall by mere lapse of time without giving notice or taking other action
hereunder be deemed to have waived any breach by the other party of any provision of
this Agreement. Further, the waiver by either party of a particular breach of this
Agreement by the other party shall not be construed as, or constitute, a continuing
waiver of such breach, or of other breaches of the same or other provisions of this
Agreement. If any provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local government having jurisdiction over this
Agreement, the validity of the remaining portions or provisions hereof shall not be
affected thereby. This Agreement may be executed in one or more counterpart copies,
each of which shall be deemed an original and all of which shall together be deemed to
constitute one agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
UNI-MARTS, C
By: _ - 4el?? Its: M a er
SAIMA INTERNATIONAL, INC.
By:
Its: President
610315.17121105
_?
Exhibit D
Saima International, Inc.
Consent to Sublease Agreement with Uni-Marts, LLC
Dated May 23, 2006
FOR STORES: 94232 (Original Agreement)
94234
94249
94251
94255
94905
AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the ? day of
2006 by and between Uni-Marts, LLC, a Pennsylvania limited liability company ("Uni-Marts")
and Saima International, Inc., a Pennsylvania corporation (the "Dealer").
Background
Uni-Marts is the owner or ground lessee of certain property located at the location(s) set
forth in Exhibit "A" attached hereto (collectively or individually, the "Property"). Uni-Marts and
Dealer are parties to a certain leases (or subleases, as the case may be) (collectively or
individually, the "Lease") and certain other agreements pursuant to which Dealer leases the
Property from bni-Marts and operates a business (the "Business") thereon (the Lease and such
other agreements are referred to herein as the "Dealer Agreements" and are more particularly
described in Exhibit "B" attached hereto).
Dealer is contemplating seeking out a party or parties (collectively or individually, the
"Subdealers") who may wish to sublease the Property and operate the Business pursuant to an
agreement with Dealer (such a transaction, a "Subdealerization"). In connection with a
Subdealerization, Dealer would sublease the Property to the Subdealer and authorize the
Subdealer to act on Dealer's behalf in certain aspects of the Dealer Agreements. In the event
Dealer desires to consummate such a transaction, Dealer acknowledges that it will need to
request the consent and approval of Uni-Marts to said Subdealerization.
Uni-Marts is willing to consent to Subdealerizations, subject to the terms and conditions
contained herein.
NOW, THEREFORE, for and in consideration of the covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. Notice and KQWt for Consent: Granting of Consent. If Dealer wishes to enter into
a Subdealerization, Dealer shall identify the relevant Property and and provide Uni-Marts with
the name of the proposed Subdealer (the "Proposed Subdealer") and, if the Proposed Subdealer is
an entity, the names of all principals thereof. If requested, Dealer shall provide Uni-Marts with
financial and other information regarding the Proposed Subdealer. If the Proposed Subdealer
evidences, to Uni-Marts' reasonable satisfaction, the capacity to operate the Business in
accordance withthe Dealer Agreements, Uni-Marts shall consent in writing to the
Subdealerization.
2. Third Party Consents. Following approval of a proposed Subdealdrization by Uni-
Marts, Uni-Marts shall use all commercially reasonable efforts to obtain any third party consents
required to authorize Uni-Marts to grant such approval ("Third Party Consents"). Dealer agrees
that Uni-Marts shall not be required to consent to, or request Third Party Consents with respect
to, any of the Properties listed on Exhibit "C" prior to the date which is sixty (60) days after the
date hereof. Uni-Marts' consent set forth in Section 1 of this Agreement shall be deemed
971570.4 SaW
conditioned upon, and not effective until, receipt of all required Third Party Consents, and no
( Subdealerization shall be valid unless all required Third Party Consents are obtained.
3. Subdealerization. Dealer agrees that any Subdealerization shall be subject to the
following requirements:
a. Dealer shall notify Uni-Marts not less than thirty (30) days in advance of the
proposed date of the Subdealerization (the actual date of Subdealerization, the "Closing Date").
b. On the Closing Date, Dealer and Subdealer shall provide Uni-Marts, via
facsimile transmission:
i. a written confirmation from Dealer and Subdealer that the
Subdealerization has occurred ("Closing Notice");
ii. if agreed to by Dealer, a letter executed by Dealer and Subdealer
listing any existing fuel supply agreements between Uni-Marts and the Dealer pertaining to the
Property, and authorizing the Subdealer to order fuel from Uni-Marts under such agreements (the
"Fuel Order Authorization"); and
iii. a certification from Subdealer to Uni-Marts confirming that
Subdealer shall be bound by and shall comply with the terms and provisions of the Dealer
Agreements, including the Lease, during the term of the Subdealerization (the "Certification")
c. Dealer and Subdealer shall enter into a sublease dated as of the Closing Date
in substantially the form attached hereto as Exhibit "D" (the "Sublease").
d. Within two (2) business days after the Closing Date, Dealer shall provide Uni-
Marts with original executed copies of the Closing Notice, the Fuel Order Authorization (if
applicable), the Certification and the Sublease.
4. Other Subdealerization Requirements. Dealer shall be responsible to ensure that
Subdealer has all permits and/or approvals necessary for Subdealer to operate the Business.
Dealer shall be responsible for ensuring that the Subdealer cooperates to provide to Uni.-Marts all
information that it requires to transfer accounts and otherwise process the Subdealerization.
Dealer shall be responsible for complying with any notice and consent requirements, if any,
imposed by any of Dealer's lenders, if any, with respect to the Subdealerization.
5. Effect of Agreement and Consent. This Agreement is personal to Uni-Marts and shall
not be deemed to modify or amend any provisions of the Lease. Neither this Agreement nor any
consent to Subdealerization shall be deemed to constitute a consent by Uni-Marts to any
Subdealerization other than that expressly consented to, or to any other future Subdealerization,
assignment of the Lease or sublease of the Property. Notwithstanding anything to the contrary
contained herein or in any other document, in the event that the Dealer has been granted or holds
an option, right of first offer or right of first refusal to purchase all or part of the Property, such
option or right is terminated as of the date of this Agreement.
6. Estovvel: Release.
9315MA3fW6 -2-
a. Dealer and Guarantor acknowledge that as of the date of this Agreement (a)
there is no default or failure on the part of Uni-Marts in the performance of its obligations under
the Dealer Agreements, and (b) neither Dealer nor Assignee has any defense, offset, claim or
counterclaim under the Dealer Agreements or otherwise against Uni-Marts,
b. Dealer and Guarantor hereby release and forever discharge Uni-Marts, its
affiliated entities, and their respective members, managers, partners, shareholders, officers,
directors, agents, counsel, representatives, successors, assigns and employees (the "Releasees"),
of and from any and all claims, acts, damages, demands, rights of action, causes of action, suits,
debts, claims and demands, in law or in equity, foreseen or unforeseen, matured or unmatured,
known or unknown, accrued or unaccrued, whatsoever which Dealer or Guarantor now has or
ever had, based upon (i) any act, transaction, practice, conduct, representation or failure to act
and/or omission of Releasees that occurred prior to the date hereof, including in connection with
the PSA and all transactions contemplated thereby with respect to any and all locations operated
by Dealer and/or Guarantor; (ii) the condition of the Property or any other property leased by
Dealer; and (iii) claims based on allegations of fraud or any claim that the PSA, this release or
any other agreements between Dealer and/or Guarantor and Uni-Marts were in any way
fraudulently induced. Dealer and Guarantor covenant and agree not to commence or prosecute
any action or proceeding against Releasees or to assert against Releasees in any action or
proceeding any matter whether or not now known, based upon (i) any act, transaction, practice,
conduct, representation or failure to act and/or omission of Releasees that occurred prior to the
date hereof, including in connection with the PSA and all transactions contemplated thereby with
respect to any and all locations operated by Dealer and/or Guarantor; (ii) the condition of the
Property or any other property leased by Dealer; and (iii) claims based on allegations of fraud or
any claim that the PSA, this release or any other agreements between Dealer and/or Guarantor
and Uni-Marts were in any way fraudulently induced.
c. Dealer and Guarantor understand and agree that Dealer and Guarantor may
hereafter become aware of facts different from, or in addition to, those which they now know to
be or believe to be true related in any way to any of the matters being released hereby as set forth
in Section 6(b), above. Dealer and Guarantor agree that the release and covenant not to sue
given by them in Section 6(b), above, shall remain effective in all respects, notwithstanding such
different or additional facts and any subsequent discovery thereof.
d. Dealer and Guarantor further understand and agree that the release and
covenant not to sue given by Dealer and Guarantor in Section 6(b), above, is intended to be the
very broadest release and covenant not to sue possible, and includes, but is in no way limited to,
any claim for fraud and any claim that this Agreement was fraudulently induced and a release of
every claim that,pould ever be brought by Dealer and/or Guarantor arising directly or indirectly
out of any of thematters being released hereby as set forth in Section 6(b), above, including, but
not limited to, any and all claims for relief and damages of whatever kind.
e. Dealer and Guarantor further acknowledge and agree that they are relying
wholly on their own judgment, belief, and knowledge of the nature and extent of their damages
or possible damages and any potential liability therefore, and/or the judgment of their own
counsel, and that the release and covenant not to sue given by them in Section 6(b), above, is
made without any reliance upon any statement or representation by Uni-Marts or any of its
97153A.4 Y3M
-3-
agents and/or representatives. Dealer and Guarantor hereby expressly deny that any such
statements or representations have been made.
f. In the event that the foregoing provisions of Section 6 hereof should be
determined by a court or other tribunal of competent jurisdiction to exceed the release and
covenant not to sue limitations permitted by the applicable law in the jurisdiction in which
enforcement of this Agreement is sought, then such provisions shall be deemed reformed in such
jurisdiction to the maximum release and covenant not to sue limitations permitted by such
applicable law, and the parties hereby grant any court or other tribunal of competent jurisdiction
the authority to effect such reformation.
7. Notices. Except as otherwise set forth above, any notices required or permitted to be
given under this Agreement shall be given in writing and shall be delivered (a) in person, (b) by
a commercial overnight courier that guarantees next day delivery and provides a receipt, or
(c) by legible facsimile (followed by hard copy sent concurrently with such facsimile, in
accordance with preceding subsections (a) or (b)), and such notices shall be addressed as
follows:
If to Dealer:
If to Uni-Marts:
Uni-Marts LLC
477 East Beaver Avenue
State College, PA 16801
Attn: Bill Long
Facsimile No.: (814) 234-8712
Saima International, Inc.
3811 Market Street
Camp Hill, PA 17011
Attn: Aijaz Shaikh, President
Facsimile No.:
MF-Vu UPDAT5D AbDRe?S
!SAIMA INTIL, 1NG,
lct5l? SPfPIKe RvhJ)
Pit
or to such other address as the intended recipient may from time to time specify in writing to the
other parties. Any notice shall be effective only upon receipt (or refusal by the intended
recipient to accept delivery). Notice given by facsimile shall be effective upon receipt of such
facsimile (subject to the requirement that hard copy be sent concurrently in accordance with this
Section); however, if the facsimile is received after 5:00 p.m. prevailing local time at the place of
receipt, notice by facsimile shall not be effective until the next business day.
8. Miscellaneou&
a. The headings and captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of this Agreement or
931530.4 MAW
-4-
any of its provisions. Where the context so requires, the use of the singular shall include the
( plural and vice versa and the use of the masculine shall include the feminine and the neuter.
b. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
c. Neither this Agreement nor any memorandum or short form thereof may be
recorded by Dealer or Assignee.
d. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute one and the same
instrument.
e. This Agreement and the Exhibits attached to this Agreement contain the final
and entire agreement among the parties with respect to the subject matter hereof and are intended
to be an integration of all prior negotiations and understandings. No change or modification to
this Agreement shall be valid unless the same is in writing and signed by the parties to this
Agreement.
f. If any provision of this Agreement, or the application thereof to any person,
place or circumstance, shall be held by a court or other tribunal of competent jurisdiction to be
invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied
to other persons, places and circumstances shall remain in full force and effect.
g. In the event of any dispute(s) arising hereunder, whether regarding the
( interpretation of any provisions hereof or otherwise, the parties agree that the appropriate venue
for the resolution of such dispute(s) to which such dispute(s) shall be submitted are the courts of
Centre County, Pennsylvania.
h. Dealer and Guarantor represent that they have the full authority to enter into
and perform this Agreement and their obligations thereunder, and that they have obtained all
consents from other parties that may be necessary.
[Remainder of page intentionally left blank.]
931530A MW
-5-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
DEALER:
SAIMA INTERNATIONAL, INC.
By: vel??k V?L?
Print Name: "az Shaikh
Title: President
UNI-MARTS:
By: v
Print me: Alex D. Sahalcian
Title: Manaser
JOINDER AND RATIFICATION
The undersigned (collectively, "Guarantor") have entered into one or more guaranties of
some or all of the Dealer Agreements. Guarantor hereby joins in and agree to be bound by the
foregoing Agreement. Guarantor further agrees and confirms that its respective guaranties are in
full force and effect and subject to no defenses, and that the same shall remain in full force and
effect following any Subdealerizatioa. Uni-Marts shall be under no obligation to notify the
Guarantor in the event that it consents to a Subdealerization.
GUARANTOR:
Print Name: Aaz Shaikh
931530A SM -6-
Exhibit "A"
Locations
Site No.: 94232
Location: 50 East Main Street. Route 641
Plainfield. PA 17081
County: Cumberland
Site No.: 94234
Location: 1962 St?rine Road
Carlisle. PA 17013
County: Cumberland
Site No.: 94249
Location: 6896 Carlisle Pike
New Kingston, PA 17055
County: Cumberland
Site No.: 94251
Location: 424 North Baltimore Street
Mt. Holly Sarin-p, PA 17065
County: Cumberland
Site No.: 94255
Location: 98-100 South 2nd Street
West Fairview. PA 17025
County: Cumberland
Site No.: 94905
Location: 350 North Main Street
Mercersbur -, PA 17236
County: Franklin
931530A 3/lID6
-7-
Exhibit T
Dealer Ame -tints
jDuplicate page for each site, as needed]
Site No.: _ 94232 -
Location: 50 East Main Street. Route 641
_ Plainfield PA 17081
County: Cumberland
All Dealer Agreements are dated August 2, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the "PSA").
2. Lease Agreement by and between Um-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between.Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
r
931530.45M* _g_
Exhibit "B"
Dealer Agreements
(Duplicate page for each site, as needed]
Site Nn.: 94234
Location, 1962 S" Road
Carlisle. PA 17013
County: Cumberland
All Dealer Agreements are dated August 2, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the TSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Urn-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule -- Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
i'
$01=4 5aW
-9-
Exhibit "B"
Dealer A aMm nts
(Duplicate page for each site, as needed]
Site No.: 94249
Location: 6896 Carlisle Pike
New Kingston. PA 17055
County: Cumberland
All Dealer Agreements are dated August 3, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the "PSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
931530.0 9/3,oa -10-
Exhibit "B"
Dealer Agreements
[Duplicate page for each site, as needed]
Site No.: 94251
Location: 424 North Baltimore Street
Mt. Holly Springs, PA 17065
County Cumberland
All Assignment and Assumption of Dealer Agreements are dated December 1, 2005 unless
otherwise specifically specified below.
1. Consent to Assignment Agreement Purchase and Sale Agreement dated November 1,
2005 between Saima International, Inc., Richard and Kyong, Inc. and Uni-Marts, as amended
(the "PSA").
2. Assignment and Assumption of Lease Agreement by and between Uni-Marts and
Dealer (the "Lease"), for certain space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer,
9. Commodity Schedule -- Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
9115!0 a YUOa
-11-
Exhibit "B "
Dealer Ag eements
jDuplicate page for each site, as needed]
Site Igo.: 94255
Location: 98-100 South 2nd Street
West Fairview. PA 17025
County: Cumberland
All Dealer Agreements are dated August 3, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the "PSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
5. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
01MAMO
-12-
Exhibit "B"
Dealer Agreements
(Duplicate page for each site, as needed]
Site No.: 94905
Location: 350 North Main Street
Mercersburg, PA 17236
County: Franklin
All Dealer Agreements are dated June 8, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated March 31, 2005 between Saima International,
Inc. and Uni-Marts, as amended (the "PSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
931530.4 6/2V06
-13-
Exhibit "C"
Slike Sites
Site No.: 94249
Location: 6896 Carlisle Pike
New Kingston PA 17055
County Cumberland
Site No.: 94251
Location: 424 North Baltimore Street
Mt Holly Springs PA 17065
County Cumberland
Site No.: 94255
Location: 98-100 South 2nd Street
West Fairview, PA 17025
County: Cumberland
931530.4 6!22106 -14-
Exhibit "D"
Sublease Form
931530.4 W22106 -15-
Site No.: 94255
r ± Location: 98-100 South Second Street
West Fairview, Pa. 17025
Prime Landlord: Uni-Marts LLC
Lease: Lease dated August 3, 2005, as amended.
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") made this 2 day of
2006, by and between SAIMA INTERNATIONAL, INC.a Pennsylvania
corporaion (the "Sublessor"), and NOOR AKHTER, INC., a Pennsylvania corporation (the
"Sublessee").
BACKGROUND:
Uni-Marts (the "Prime Landlord") is the owner or ground lessee of certain premises (the
"Premises") located at and known as UNI-MARTS #94255 (the 'Property"), as more particularly
described in Exhibit "A". Prime Landlord and Sublessor are parties to a certain lease or
sublease, as the case may be (the "Lease"), pursuant to which Sublessor leases the Premises from
Prime Landlord. A copy of the Lease is attached to this Sublease as Exhibit "B". Capitalized
`. terms which are used but not otherwise defined in this Sublease shall have the meanings ascribed
to them in the Lease.
Sublessor now desires to sublease the Premises to Sublessee and Sublessee desires to
sublease the Premises from Sublessor, upon the terms and conditions set forth in this Sublease.
NOW, THEREFORE, for and in consideration of the covenants and agreements set
forth in this Sublease, and intending to be legally bound, Sublessor and Sublessee agree as
follows:
Demise; Term.
1.1. Demise. Sublessor hereby subleases the Premises to Sublessee, and
Sublessee hereby subleases the Premises from Sublessor, together with all fixtures installed in
the Premises by or for the benefit of Sublessor, and also together with all appurtenances and
rights ancillary to the Premises.
1.2. Term. The term of this Sublease (the "Sublease Term") shall begin on the
later of.(A) September 1, 2006, or (B) the date that Sublessor receives Consent (as defined in
Section 23.1 of this Sublease), if such consent is required under the Lease. The Sublease Term
shall expire on August 31, 2013, unless sooner terminated by Sublessor as provided in this
( Sublease.
479670.1 6/p06
2. Lease.
2.1. Terms of Sublease Identical With Lease. It is intended that the terms and
conditions of this Sublease shall be identical to the terms and conditions of the Lease, except to
the extent inconsistent with the express terms of this Sublease and except as set forth in Section
2.2 of this Sublease. Therefore, Sublessor and Sublessee agree that:
2.1.1. each and every term, condition, covenant and agreement of the
Lease is a term, condition, covenant and agreement of this Sublease, and is incorporated in this
Sublease by reference, except to the extent inconsistent with the express terms of this Sublease
and except as set forth in Section 2.2 of this Sublease;
2.1.2. Sublessee shall perform all obligations and comply with all
terms, conditions, covenants and agreements of Sublessor as tenant under the Lease for the
Sublease Term, except to the extent inconsistent with the express terms of this Sublease and
except as set forth in Section 2.2 of this Sublease; and
2.1.3. the term ["Landlord"/"Lessor"] as set forth in the Lease shall
mean Sublessor in this Sublease and the term ["Tenant"/"Lessee"] as set forth in the Lease shall
mean Sublessee in this Sublease.
2.2. Terms Not Incorporated. Notwithstanding the provisions of Section 2.1 of
this Sublease, the following provisions of the Lease are not incorporated in or made part of this
Sublease:
2.2.1. any purchase options, rights of first offer or rights of first refusal
granted tenant under the Lease with respect to all or part of the Premises or any other property of
Prime Landlord, if any;
2.2.2. any rights granted tenant under the Lease to lease other
properties of Prime Landlord, if any;
2.2.3. any renewal rights which would serve to extend the term of this
Sublease beyond the term of the Lease, if any;
2.2.4. any provisions which entitle the tenant under the Lease to share
in any income or revenue of the Prime Landlord, if any; and
2.2.5. those provisions, if any, listed on Exhibit "C".
2.3. Sublease Controls. If there is a conflict between the stated terms and
conditions in this Sublease and those set forth in the Lease, the terms and conditions set forth in
this Sublease shall control.
93ia".2 anm 2
2.4. Performance To Be Tendered To Prime Landlord. Except as otherwise
provided in this Sublease, Sublessee shall tender performance of its obligations directly to Prime
Landlord so that all of Sublessor's obligations under the Lease accruing during the Sublease Term
shall be fully satisfied and discharged by Sublessee's performance.
2.5. Covenant Against Actions Causing Default Under Lease. Sublessee shall
not do or cause to be done or suffer or permit to be done any act or thing which would constitute
a default under the Lease or which would cause the Lease or any of Sublessor's rights under the
Lease to be cancelled, terminated, forfeited or prejudiced or which would render Sublessor liable
for any damages, fines, claims, penalties, costs or expenses under the Lease.
[Intentionally Omitted].
4. Rent.
4.1. Fixed Rent. Sublessee shall pay rent ("Fixed Rent") at the times and in the
amounts set forth in Exhibit "D".
4.2. Additional Rent. All sums of money required to be paid by Sublessee
under this Sublease or the Lease which are not specifically referred to as rent ("Additional Rent")
shall be considered rent although not specifically designated as such. Sublessor shall have the
same remedies for nonpayment of Additional Rent as those provided herein for the nonpayment
of Fixed Rent.
f
4.3. Rent In General.
4.3.1. All Fixed Rent and Additional Rent (collectively, "Rent") shall
be paid to Sublessor at its address set forth in this Sublease, or at such other address as Sublessor
may direct.
4.3.2. All Rent shall be paid without notice or demand and without
any setoff or deduction whatsoever. Sublessee's covenant and agreement to pay Rent shall for all
purposes be construed as a separate and independent covenant.
Use.
5.1. Permitted Use. Sublessee shall use and occupy the Premises for the
operation of a Uni-Mart Facility and for no other purpose; provided, however, that if any use
included in the definition of Uni-Mart Facility is prohibited under the Prime Lease, then such use
shall also be prohibited under this Sublease.
5.2. Temporary Closure. Except as set forth below, and except during periods
when the Premises is untenantable by reason of fire or other casiialty or condemnation (provided,
however, during all such periods while the Premises is untenantable, Sublessee shall strictly
`. comply with the terms and conditions of this Sublease), Sublessee shall at all times during the
Sublease Term occupy the Premises and shall diligently operate its business on the Premises.
931899.2 BM06 3
Provided the same is not a violation of the Prime Lease, Sublessee may cease diligent operation
of business at the Premises for a period not to exceed 150 days and may do so only once within
any five-year period during the Sublease Term. If Sublessee does discontinue operation at the
Premises as permitted by this Section, Sublessee shall (i) give written notice to Sublessor sixty
(60) days prior to ceasing operation (ii) give written notice to Sublessor within 10 days after
Sublessee actually ceases operation, (iii) provide adequate protection and maintenance of the
Premises during any period of vacancy and (iv) pay all costs necessary to restore the Premises to
its condition on the day operation of the business ceased at such time as the Premises are
reopened for Sublessee's business operations or other substituted use approved by Sublessor as
contemplated below. Notwithstanding anything herein to the contrary, Sublessee shall pay the
Base Monthly Rental on the first day of each month during any period in which Sublessee
discontinues operation.
6. Premises Accepted "AS-IS".
The Premises are accepted by Sublessee in their present condition, "AS-IS,"
without any representation or warranty by Sublessor, subject to the state of title on the date of
this Sublease, and also subject to all applicable legal requirements and any violation of legal
requirements which may exist on the date of this Sublease. Sublessee has examined and
approved the Premises and acknowledges that all improvements and fixtures included in the
Premises are in good condition and working order. Sublessor shall have no obligation to make
any improvements to the Premises or provide Sublessee any allowance for so doing.
7. Assignment and Subletting.
Sublessee shall not assign this Sublease or sublet all or any part of the Premises,
or mortgage, pledge or encumber the subleasehold interest created by this Sublease, without the
prior written consent of Sublessor. Such consent may be granted or withheld in the sole
discretion of Sublessor and may be granted subject to any terms or conditions which Sublessor
may impose. For purposes of this Article 7, any transfer or change in control of Sublessee by
operation of law or otherwise shall be deemed an assignment of this Sublease, including, without
limitation, any merger, consolidation, dissolution or any change in the controlling equity interests
of Sublessee, whether in a single transaction or a series of related transactions. For purposes of
this Article 7, any transfer by levy or sale on execution, by other legal process, by operation of
law, and any transfer in bankruptcy or insolvency, or under any other compulsory procedure or
order of court shall be deemed to be an assignment of this Sublease.
8. Insurance.
Sublessee, at its sole cost and expense, shall maintain the insurance coverages
required of the TenantAL.essee in the Lease.
9. Waiver of Subrogation.
9.1. Sublessor and Sublessee, for themselves and their respective insurers,
hereby release each other of and from any and all claims, demands, actions and causes of action,
9318"2 VM6 4
(including, without limitation, subrogation claims), for loss or damage to their respective
property, even if the loss or damage shall have been caused by the fault or negligence of the other
party, or anyone for whom such party may be responsible.
9.2. The waiver and release provided in Section 9 shall be effective only with
respect to loss or damage (a) covered by insurance or required to be covered by insurance
pursuant to the terms of this Sublease, and (b) occurring during such time as the relevant
insurance policy contains either (i) a waiver of the insurer's right of subrogation against the other
party, or (ii) a clause or endorsement to the effect that the waiver and release provided in Section
9 shall not adversely affect or impair such insurance or prejudice the right of the insured to
recover under the insurance policy. Each party will use its best efforts to obtain such a clause or
endorsement, but if an additional premium is charged therefor, the party benefiting from such
clause or endorsement, if it desires to have such waiver, will pay to the other the amount of such
additional premium within ten (10) days after delivery of a statement for the amount due.
10. Indemnification.
Sublessee covenants and agrees to indemnify, defend, and hold harmless
Sublessor, Prime Landlord, and their respective partners, shareholders, officers, directors, agents
and employees, from and against any and all claims, demands, costs, expenses, judgments,
losses, suits and damages arising out of or connected with (A) any occurrence of any nature on
the Premises; (B) injury to persons or damage to property caused by the negligence or otherwise
tortious acts of Sublessee or Sublessee's agents, employees, contractors, subtenants, licensees or
invitees; (C) any breach by Sublessee, its agents, employees, contractors, subtenants, licensees or
invitees of any covenant or agreement made by Sublessee pursuant to this Sublease, including,
without limitation, the covenants and agreements incorporated from the Lease by reference,
pursuant to Article 1 of this Sublease.
11. Environmental Matters.
11.1. Definitions. The following terms, as used in this Article 11, shall have the
meanings set forth below:
11.1.1. "Hazardous Substance(s)" means any substance, material or
waste defined as a pollutant or contaminant, or as a hazardous, toxic or dangerous substance,
material or waste, under any Environmental Law, including, without limitation, petroleum,
petroleum products, PCBs and asbestos.
11.1.2. "Environmental Laws" means all Federal, state and local laws,
statutes, ordinances, codes, regulations and other requirements respecting the environment,
including but not limited to those respecting (A) the generation, use, handling, processing,
storage, treatment, transportation, or disposal of any solid or hazardous wastes, or any hazardous
or toxic substances or materials; (B) pollution or contamination of land, improvements, air
(including indoor air), or water (including groundwater); and (C) emissions, spills, releases, or
discharges of any substance onto or into the land, improvements, air (including indoor air), or
water (including groundwater), or any sewer or septic system; (D) protection of wetlands; (E)
991999.2 8n106 5
aboveground or underground storage tanks; (F) air quality (including indoor air quality) or water
quality (including groundwater quality); and
(G) protection of endangered species.
11.1.3. "Environmental Release" means any intentional or unintentional
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, infecting, escap-
ing, leaching, disposing, abandoning, discarding or dumping of any Hazardous Substance from,
on, into or about the Premises or the Property.
11.2. Use. Sublessee shall not use, or permit its agents, employees, contractors,
subtenants, licensees or invitees to use the Premises or any portion of the Property for the
purpose of treating, producing, handling, transferring, processing, transporting, disposing, using
or storing a Hazardous Substance.
11.3. Environmental Release. Sublessee shall not cause or permit to exist, as
the result of an action or omission by Sublessee or its agents, employees, contractors, subtenants,
licensees or invitees, an Environmental Release. The occurrence of an Environmental Release,
or a violation of any covenant, representation or warranty of this Article 11, shall be a Default
under this Sublease.
11.4. Waste Receptacles and Plumbing. Sublessee shall not place or permit its
agents, employees, contractors, subtenants, licensees or invitees to place any Hazardous
Substance in any waste receptacle located in or about the Premises, the Property or the plumbing
or sewer systems of the Property.
11.5. Compliance With Laws. Sublessee shall comply and shall cause its
agents, employees, contractors, subtenants, licensees or invitees to comply with all
Environmental Laws.
11.6. Indemnification. Without limiting the generality of Article 10 of this
Sublease, Sublessee covenants and agrees to indemnify, defend, and hold harmless Sublessor,
Prime Landlord, and their respective partners, shareholders, officers, directors, agents and
employees, from and against any and all claims, demands, costs, expenses, judgments, losses,
suits and damages arising out of or connected with (A) Environmental Releases to the extent
caused by Sublessee, its agents, employees, contractors, subtenants, licensees or invitees, or (B)
failure of Sublessee, or its agents, employees, contractors, subtenants, licensees or invitees to
comply with the provisions of this Article 11.
12. Surrender; Holdover.
12.1. Condition Upon Surrender. At the expiration or earlier termination of the
Sublease Term, Sublessee shall promptly surrender possession of the Premises and all
Alterations in the condition required by the Lease.
931899.2 Rn M 6
12.2. Personal Property. Sublessee. shall remove all personal property from the
Premises at the expiration or earlier termination of the Sublease Term. Any personal property
which shall remain in the Premises after the expiration or earlier termination of the Sublease
Term shall be deemed to have been abandoned and either may be retained by Sublessor as
Sublessor's property or may be disposed of in such manner as Sublessor may see fit. Any costs
of removing and disposing of the personal property incurred by Sublessor shall be paid by
Sublessee to Sublessor as Additional Rent within ten (10) days after Sublessee is billed therefor.
If such personal property is sold by Sublessor, Sublessor may receive and retain the proceeds of
such sale as Sublessor's property.
12.3. Holdover. If Sublessee retains possession of the Premises or any part
thereof after the termination of this Sublease by expiration of the Sublease Term or otherwise,
Sublessee shall pay Sublessor (A) an amount, calculated on a per diem basis for each day of such
unlawful retention, equal to the greater of (i) twice the Fixed Rent in effect immediately prior to
the expiration or earlier termination of the Sublease Term, or (ii) the market rental for the
Premises, as determined by Sublessor, for the time Sublessee thus remains in possession, plus, in
each case, all Additional Rent payable hereunder, and (B) all damages, costs and expenses
sustained by Sublessor by reason of Sublessee's holding over. All of Sublessee's obligations with
respect to the use, occupancy and maintenance of the Premises shall continue during such period
of retention; however, neither the compliance with such obligations nor the payment of the
amounts set forth above in this Section shall create any right in Sublessee to continue in
possession of the Premises or limit any rights or remedies of Sublessor resulting from such
holdover.
13. Default of Sublessee.
It shall be a default under this Sublease (a "Default") upon the occurrence of any
of the events specified in the Lease as a default.
14. Remedies.
The rights and remedies of Sublessor upon the occurrence of a Default under this
Sublease, shall be the same as the rights and remedies of Prime Landlord upon the occurrence of
an event of default under the Lease.
14.1. CONFESSION OF JUDGMENTS.
14.1.1. CONFESSION OF JUDGMENT FOR RENT.
SUBLESSEE IRREVOCABLY AUTHORIZES AND EMPOWERS THE
PROTHONOTARY AND CLERK OR ANY ATTORNEY OF ANY COURT OF Initials
RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUBLESSEE
FOR SUCH RENT AND OTHER SUMS AS ARE DUE AND/OR MAY BECOME DUE
UNDER THIS SUBLEASE, WITHOUT STAY OF EXECUTION AND WITH AN ---???--??
ATTORNEY'S COLLECTION FEE OF FIVE PERCENT (5%) OF THE AMOUNT DUE
(BUT NOT LESS THAN, $1,000.00), WHICH IS REASONABLE AS AN ATTORNEY'S
FEE. TO THE EXTENT PERMITTED BY LAW, SUBLESSEE RELEASES ALL
931899.2 RnM 7
ERRORS IN SUCH PROCEEDINGS. IF A VERIFIED COPY OF THIS SUBLEASE IS
FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL SUBLEASE. THE
AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
SUBLESSEE SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF
AND MAY BE CONFESSED AS OFTEN AS ANY DEFAULT OCCURS. SUCH
AUTHORITY MAY BE EXERCISED DURING OR AFTER THE EXPIRATION OF
THE SUBLEASE TERM AND/OR DURING OR AFTER THE EXPIRATION OF ANY
EXTENDED OR RENEWAL TERM.
14.1.2. CONFESSION OF JUDGMENT FOR POSSESSION.
SUBLESSEE IRREVOCABLY AUTHORIZES AND EMPOWERS THE
PROTHONOTARY AND CLERK OR ANY ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUBLESSEE
FOR POSSESSION OF THE PREMISES, WITHOUT STAY OF EXECUTION. TO THE
EXTENT PERMITTED BY LAW, SUBLESSEE RELEASES ALL ERRORS IN SUCH tials
PROCEEDINGS. IF A VERIFIED COPY OF THIS SUBLEASE IS FILED, IT SHALL
NOT BE NECESSARY TO F LE THE ORIGINAL SUBLEASE. THE AUTHORITY
AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUBLESSEE
SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY
BE CONFESSED AS OFTEN AS ANY DEFAULT OCCURS. SUCH AUTHORITY MAY
BE EXERCISED DURING OR AFTER THE EXPIRATION OF THE SUBLEASE TERM
AND/OR DURING OR AFTER THE EXPIRATION OF ANY EXTENDED OR
RENEWAL TERM. IF SUCH PROCEEDING IS TERMINATED AND POSSESSION
OF THE PREMISES SHALL REMAIN IN OR BE RESTORED TO SUBLESSEE,
SUBLESSOR SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON
ANY SUBSEQUENT DEFAULT, OR UPON THE TERMINATION OF THIS
SUBLEASE UNDER ANY OF THE TERMS OF THIS SUBLEASE, TO BRING ONE OR
MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO
RECOVER POSSESSION OF THE PREMISES AND CONFESS JUDGMENT FOR THE
RECOVERY OF POSSESSION OF THE PREMISES AS HEREINABOVE PROVIDED.
14.1.3. WAIVER OF RIGHTS. IN GRANTING THESE
WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST SUBLESSEE,
SUBLESSEE HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS SUBLESSEE HAS OR MAY
HAVE TO PRIOR NOTICES AND AN OPPORTUNITY FOR HEARING UNDER THE
RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE
COMMONWEALTH OF PENNSYLVANIA.
14.1.4. REVIEW WITH COUNSEL. SUBLESSEE HEREBY
REPRESENTS THAT IT HAS FULLY REVIEWED THE AFORESAID WARRANTS OF
ATTORNEY TO CONFESS JUDGMENTS WITH ITS OWN COUNSEL AND THAT IT
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THESE WARRANTS OF
ATTORNEY TO CONFESS JUDGMENTS.
1.
931899.2 WIN
l
NOOR AKHTER, INC.
Print Name: MOHAMMAD P. AKHTER
Title: `?-
15. Provisio ns Concerning Remedies.
15.1. NJk r of Landlord and Tenant Act Notices. If proceedings shall be
commenced by Sublessor to recover possession under the Acts of Assembly and Rules of Civil
procedure, either at the end of the Sublease Term or upon the earlier termination of this Sublease,
or for non-payment of I:ent or any other reason, Sublessee specifically waives the right to the
notices required by the :Landlord and Tenant Act of 1951, as the same may be amended, and
agrees that five (5) dayi,' notice shall be sufficient in all cases.
15.2. E;urvival of Sublessee's Ob 'gations. No expiration or termination of this
Sublease, and no reposi ession of the Premises or any part thereof shall relieve Sublessee of its
liabilities and obligations under this Sublease, all of which shall survive such expiration,
termination or repossession, and Sublessor may, at its option, sue for and collect all Rent and
other charges due heret nder at any time as and when such charges accrue.
15.3. ] Vic, ttion Other Remedies. In the event of breach or threatened breach
by Sublessee of any prevision of this Sublease, Sublessor shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity in addition to other remedies provided
for in this Sublease.
15.4. 'JVaivf:r of Redemption. Sublessee hereby expressly waives any and all
rights of redemption giantecl by or under any present or future law in the event this Sublease is
terminated, or in the event of Sublessor obtaining possession of the Premises, or in the event
Sublessee is evicted or dispossessed for any cause, by reason of violation by Sublessee of any of
the provisions of this Sublease.
15.5. ;& is Cumulative. No right or remedy conferred upon or reserved to
Sublessor in this Sublease i,, intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and in addition to every other right or remedy given
in this Sublease or now or hereafter existing at law or in equity or by statute.
15.6. 6_geoses. In the event that Sublessor commences suit for the repossession
of the Premises, for thy: recc:?very of Rent or any other amount due under the provisions of this
Sublease, or because cf the breach of any other covenant of Sublessee in this Sublease, Sublessee
shall pay Sublessor all expenses incurred in connection therewith, including reasonable attorneys'
fees.
15.7. Waiyers_. No waiver by Sublessor of any breach by Sublessee of any
obligations, agreements or covenants in this Sublease shall be a waiver of any subsequent breach
9718992&nm 9
or of any obligation, agreement or covenant, nor shall any forbearance by Sublessor to seek a
remedy for any breach by Sublessee be a waiver of any rights and remedies with respect to such
or any subsequent breach.
15.8. WAIVER OF JURY TRIAL. SUBLESSEE HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
SUBLESSOR ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS SUBLEASE, THE RELATIONSHIP OF SUBLESSOR AND SUBLESSEE,
SUBLESSEE'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY
OR DAMAGE, OR ANY OTHER REMEDY WITH RESPECT THERETO.
16. Quiet Enjoyment.
Subject to the terms and conditions of this Sublease, Sublessor warrants to
Sublessee that it will take no action to disturb the quiet enjoyment of Sublessee for so long as
Sublessee performs all obligations of the sublessee under this Sublease. Sublessor makes no
warranty respecting action by any other party, including, without limitation, Prime Landlord.
17. Sublease Subordinate to Lease; Termination of Lease.
17.1. Prime Landlord's interest in the Premises shall not be subordinate to any
encumbrances placed upon the Premises by or resulting from any act of Sublessee, and nothing
herein contained shall be construed to require such subordination by Sublessor. Sublessee shall
f keep the Premises free from any liens for work performed, materials furnished or obligations
incurred by Sublessee. NOTICE IS HEREBY GIVEN THAT SUBLESSEE IS NOT
AUTHORIZED TO PLACE OR ALLOW TO BE PLACED ANY LIEN, MORTGAGE, DEED
OF TRUST OR ENCUMBRANCE OF ANY KIND UPON ANY, ALL OR ANY PART OF
THE PREMISES OR SUBLESSEE'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH
PURPORTED TRANSACTION SHALL BE VOID. FURTHERMORE, ANY SUCH
PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS'INTERFERENCE
WITH PRIME LANDLORD'S INTEREST IN THE PREMISES.
17.2. This Sublease and the estate, interest and rights hereby created are
subordinate to every mortgage, ground leases or underlying leases affecting the Premises or now
or hereafter placed upon the Premises by any ground lessor or Prime Landlord, and Sublessee
covenants and agrees to execute and deliver, upon demand, such further instruments
subordinating this Sublease to the lien or interest of any or all such ground leases or mortgages as
shall be desired by any ground lessor or Prime Landlord or any present or proposed ground lessor
or mortgagee.
17.3. If any mortgagee, receiver or other secured party elects to have this
Sublease and the interest of Sublessee hereunder be superior to any such interest or right and
evidences such election by notice given to Sublessee, then this Sublease and the interest of
Sublessee hereunder shall be deemed superior to any such mortgage, whether this Sublease was
executed before or after such mortgage and in that event such mortgagee, receiver, trustee or
other secured party shall have the same rights with respect to this Sublease as if it had been
931899.2 VM6 10
executed and delivered prior to the execution and delivery of the Mortgage and has been assigned
to such Mortgagee, receiver, trustee or other secured party.
17.4. Although the foregoing provisions shall be self-operative and no future
instrument of subordination shall be required, upon request by Sublessor, Sublessee shall execute
and deliver whatever instruments may be required for such purposes, and in the event Sublessee
fails so to do within 10 days after demand, Sublessee does hereby make, constitute and
irrevocably appoint Sublessor as its agent and attorney-in-fact and in its name, place and stead so
to do, which appointment shall be deemed coupled with an interest.
17.5. In the event that any existing or prospective ground lessor or mortgagee
requires a modification or modifications of this Sublease, which modification or modifications
will not cause an increase in rent or in any other way materially and adversely change the rights
or obligations of Sublessee under this Sublease, Sublessee agrees that this Sublease may be so
modified and agrees to execute whatever documents are required therefor and deliver the same to
Sublessor within ten (10) days following written request by Sublessor. In the event Sublessee
fails to execute and deliver such documents within ten (10) days of written request by Sublessor,
Sublessee does hereby make, constitute and appoint Sublessor as Sublessee's attorney-in-fact and
agent in its name, place and stead to do so. This power of attorney is given as security coupled
with an interest and is irrevocable.
17.6. If the Prime Lease is terminated for any reason, this Sublease shall
terminate as of the date of termination of the Prime Lease and Sublessor shall have no liability to
Sublessee as a result of such termination.
18. Notices.
Any notices required or permitted to be given under this Agreement shall be given
in writing and shall be delivered (a) in person, (b) by a commercial overnight courier that
guarantees next day delivery and provides a receipt, or (c) by legible facsimile (followed by hard
copy sent concurrently with such facsimile, in accordance with preceding subsections (a) or (b)),
and such notices shall be addressed as follows:
If to Sublessor:
Aijaz Shaikh
SAIMA International, Inc.
1958 Spring Road
Carlisle, Pa. 17013
Telephone No. (717) 491-7048
Telephone No.:(717)-258-4731 (Store)
971899.2 WIN 11
If to Sublessee:
Mohammad P. Ahkter
Noor Ahkter, Inc.
4314 New Hampshire Drive
Harrisburg, Pa. 17112
Telephone No. (717) 943-4027 (H)
Telephone No. (717) 732-9975 (O)
Facsimile No.: (717) 732-9975
or to such other address as either party may from time to time specify in writing to the other
party. Any notice shall be effective only upon receipt (or refusal by the intended recipient to
accept delivery). Notice given by facsimile shall be effective upon receipt of such facsimile
(subject to the requirement that hard copy be sent concurrently in accordance with this Section).
Any notice which is received on a Saturday, Sunday or a legal holiday, or after 5:00 p.m.
prevailing local time at the place of receipt, shall be deemed received on the next business day.
19. Prime Landlord's Consent.
19.1. Sublease Conditioned Upon Consent. As set forth in the Background
Section of this Lease, Prime Landlord is either the owner or ground lessee of the Property. In the
event Prime Landlord is the ground lessee of the Property, this Sublease is subject to, and
conditioned upon, Sublessor's obtaining the written consent of the ground lessor to this Sublease
(the "Ground Lessor's Consent"), if such written consent is required under the ground lease. As
set forth in Section 1.2 of this Sublease, the Sublease Term shall not commence until Sublessor
has obtained the Ground Lessor's Consent, if such consent is required under the ground lease.
19.2. Delivery of Information. Sublessee shall promptly deliver to Sublessor
any information reasonably required by Ground Lessor (in connection with the Ground Lessor's
Consent) with respect to the nattire and operation of Sublessee's business and/or the financial
condition of Sublessee.
19.3. Agreements for Benefit of Prime Landlord. Sublessor and Sublessee
hereby agree, for the benefit of Ground Lessor, that neither this Sublease nor the Ground Lessor's
Consent (nor the consent of Prime Landlord to this Sublease) shall:
19.3.1. create privity of contract between Ground Lessor and Sublessee
or Prime Landlord and Sublessee;
19.3.2. be deemed to amend the Lease or ground lease in any way; or
19.3.3. be construed as a waiver of the right of ground lessor and Prime
Landlord to consent to any assignment of the Lease by Sublessor or any further subletting of the
( Premises.
931899.2 8/X06 12
20, Miscellaneous.
l
20.1. Interpretation of Sublease. The headings and captions in this Sublease are
inserted for convenience of reference only and in no way define, describe or limit the scope or
intent of this Sublease or any of its provisions. Where the context so requires, the use of the
singular shall include the plural and vice versa and the use of the masculine shall include the
feminine and the neuter.
20.2. Governing Law, Jurisdiction and Venue. This Sublease shall be governed
by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
20.3. No Recording. Neither this Sublease nor any memorandum or short form
thereof may be recorded by Sublessee.
20.4. Survival. Any covenants set forth in this Sublease which, by their nature,
would reasonably be expected to be performed after the expiration or earlier termination of this
Sublease, shall survive the expiration or earlier termination of this Sublease.
20.5. Counterparts. This Sublease may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which taken together shall constitute one
and the same instrument.
20.6. Binding Effect, Assig-ment. Subject to Article 7, this Sublease shall be
binding upon, and inure to the benefit of-, the parties to this Sublease and their respective
successors and assigns.
20.7. Limitation of Sublessor's Liability. Sublessee shall look solely to
Sublessor's interest in the Premises for enforcement of any obligation of Sublessor under this
Sublease or imposed by applicable law, and no other property or other assets of Sublessor shall
be subjected to levy, execution or other enforcement proceeding for the satisfaction of
Sublessee's remedies or with respect to this Sublease, the relationship of sublessor and sublessee
or Sublessee's use and occupancy of the Premises.
20.8. Joint and Several Liability. If two or more individuals, corporations,
partnerships, or other entities (or any combination of two or more thereof) sign this Sublease as
sublessee, the liability of each such individual, corporation, partnership or other entity to pay
Rent and perform all other obligations of Sublessee under this Sublease shall be joint and several.
20.9. Entire Agreement, Requirement for Writing.
20.9.1. This Sublease and the Exhibits attached to this Sublease contain
the final and entire agreement of Sublessor and Sublessee and are intended to be an integration of
all prior negotiations and understandings. Neither Sublessor nor Sublessee shall be bound by any
931899.2 8nM 13
covenants, agreements, statements, representations or warranties, oral or written, not contained in
this Sublease.
t:
20.9.2. No change or modification to this Sublease shall be valid unless
the same is in writing and signed by the parties to this Sublease.
20.9.3. No waiver of any of the provisions of this Sublease shall be
valid unless the same is in writing and is signed by the party against which it is sought to be
enforced.
20.10. Severabilitv. If any provision of this Sublease, or the application thereof
to any person, place or circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable or void, the remainder of this Sublease and such provisions as applied to
other persons, places and circumstances shall remain in full force and effect.
20.11. Time of Essence. Time is of the essence of each and every provision of
this Sublease of which time is an element.
20.12. Drafts not an Offer to Enter into a Legally Binding Contract. The
submission of a draft of this Sublease by one party to another is not intended by either party to be
an offer to enter into a legally binding contract. The parties shall be legally bound pursuant to the
terms of this Sublease only if and when Sublessor and Sublessee have fully executed and
delivered to each other a counterpart of this Sublease.
931899.3 WIN 14
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
SAIMA INTERNATIONAL, INC.
By:
NamAAAIJAZ IKH
Title: PRESIDENT
SUBLESSEE:
NOOR AHKTER, INC.
By: h,
Name: MOHAMMAD P. AHKTER
Title: PRESIDENT
931899.2 8/7/06 15
EXHIBIT "A"
THE PROPERTY
[Attach Legal Description]
i.
931899.2 3nft 16
U, NOY-03-2004 03:13 PM
DESAssociates
717 761 0330
ALL Those certain lots of ground situate in the Borough of
West Fairview, County of Cumberland and State of ppnnsylvania,
bounded and described as follows:
98 Second Street.
P.18
TRACT NO. I. On the east by Second street, on the south by
Lot No. 311 now or forner.ly of Mrs. Anna Smith's heirs, on the
west by a 16 foot alley and on the north by Lot No. 44 on Market
Square, now or formerly of Mrs. Amanda Bashore, having a frontage
on said Second Street of 58 feet 3-3/4 inches and extending back
an even width 150 feet to aforesaid 16 foot alley; together with
all the improvement thereon erected, being a dwelling house numbered
Less, however, a portion of the rear of the lot taken in
1939 for highway purposes by the Pennsylvania Highway Department,
being approximately 3 feet in depth on the north and 26 feet on
the south side.
TRACT NO. 2. on the north by Market Street; on the east by Main
or Second Street; on the south by lot now or formerly of. Mrs. Glessner,
and, on the 1-yest by -7tn r11cy. Containing 58 ¢eet 3 inches in front
on Main or Second Street and extending in depth 109 feet to said
alley on the west. Having erected thereon a three story frame
apartment house, situate at the southeast: corner of Market and Main
Streets, known and numbered as 100 Second Street.
EXCEPTING from the above described tract 4.003 acre taken
for highway widening purposes described in Misc. Book 75, Page 107,
as Tract: No. 13; "Beginning 30 feet east of the center line of
proposed relocation; thence along lands of Mrs. Emma. Glessner south
82 degrees 45 minutes West 3.16 feet; thence along easterly side
of an alley North 7 degrees 16 minutes west 7.81 feet; thence along
new highway south 29 degrees 17 minutes east 8.43 feet to Beginning.
Seller: Christopher L. Slike and Lisa Ann Browning
Uhibit "A" Z? *2_1 : 5 --
NOV-03-2004 03:14 PM DE8Asso,-Iatas
717 761 0330 P.19
' .X
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4 _ -r- /-7
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i?t
EXHIBIT "B"
THE LEASE
[Attach copy of the Lease between Uni-Marts LLC and Dealer]
931899.2 gnffi6 1 /
EXHIBIT "C"
4. LEASE PROVISIONS NOT INCORPORATED, PER SECTION 2.2
[Insert here any additional provisions in the Lease
which are not incorporated into the Sublease.
If this sheet remains, there are no such provisions.]
931899.2 8nM6 18
#94255-2
LANDLORDS CONSENT TO SUBLEASE
UNI-MARTS, INC., now recognized as UNI-MARTS, LLC., a Pennsylvania limited
liability company having its offices at 477 E. Beaver Avenue. State College,
Pennsylvania. 16801 (hereinafter known as "LESSEE" and / or "SUB LESSOR") has
leased a certain property known as Uni-Mart # 94255 located in West Fairview,
Pennsylvania (herein after known as the "PREMISES") pursuant to the Lease Agreement
dated October 1. 1988 as amended (hereinafter known as the "MASTER LEASE
AGREEMENT") with DONALD e. SLIKE AND Rose M. Slike later assigned to
CHRISTOPHER SLIKE and LISA BROWNING (hereinafter known as "LESSOR")
LESSEE desires to provide consent to AIJAZ SHAIKH dba SAIMA
INTERNATIONAL, LLC (hereinafter known as "SUBLESSEE") to sublease the
PREMISES to MOHAMMAD AKHTER dba NOOR AKHTER, INC., (hereinafter
known as "NEW SUBLESSEE") pursuant to the SUBLEASE AGREEMENT made
August 03, 2005, previously provided to LESSOR. The MASTER LEASE
AGREEMENT requires LESSOR'S consent to any sublease agreement, which the
consent of LESSOR has agreed to give, subject to and on the terms and conditions
hereafter set forth.
(1) The Consent to sublet granted herein is only for the party listed in this agreement and
no others. This Consent may not be sold, transferred, or assigned to any other party.
(2) The terms, covenants, and conditions of the MASTER LEASE AGREEMENT have
not been amended and shall remain in full force, and effect, unchanged by this Consent.
(3) LESSOR has no knowledge of any default by SUBLESSOR under the MASTER
LEASE AGREEMENT.' SUBLESSOR has no knowledge of any default by LESSOR
under the MASTER LEASE AGREEMENT.
(4) SUBLESSOR, SUBLESSEE, and NEW SUBLESSEE, upon execution of this
Consent, shall have and shall pay and perform, jointly and severally, all obligations,
terms, covenants, and conditions of the MASTER LEASE AGREEMENT.
SUBLESSOR acknowledges that it has provided a copy of the MASTER LEASE
AGREEMENT to SUBLESSEE and NEW SUBLESSEE, whom have been given the
opportunity to review all the provisions thereof.
(5) This Consent or any other agreement shall not lessen SUBLESSOR'S performance,
obligation, or responsibility to LESSOR as defined in the MASTER LEASE
AGREEMENT. SUBLESSOR shall NOT be relieved or released of any liabilities of the
MASTER LEASE AGREEMENT and shall remain fully liable for the payment and
performance of all of the obligations, terms, covenants, and conditions of the MASTER
LEASE AGREEMENT.
V`
(6) SUBLESSOR shall give LESSOR written notice of the effective date of the Sublease.
SUBLESSOR shall notify LESSOR in writing should SUBLESSEE or NEW
SUBLESSEE default under the Sublease or anytime should the sublease become null and
void.
(7) SUBLESSOR agrees that any modification, change or amendment to the SUBLEASE
must first be approved by LESSOR in writing, which approval shall not be reasonably be
withheld. Any additions, modifications, or changes of the SUBLEASE made on
August 03, 2005 that will executed between SUBLESSEE and NEW SUBLESSEE will
be attached to this consent agreement as "Exhibit A".
(8) As required under the MASTER LEASE AGREEMENT, SUBLESSOR shall pay to
LESSOR one-half (1/2) of all excess rental fees (as defined below) received by
SUBLESSOR from all parties, including without limitation, from SUBLESSEE or NEW
SUBLESSEE, while the premised is leased by the SUBLESSEE or NEW SUBLESSEE.
As used in this agreement, the term "Excess Rental Fees" shall be defined as all rental
fees received by SUBLESSOR attributable to the premises, minus the rental fee in effect
on the date hereof under the MASTER LEASE AGREEMENT. A copy of all executed
documents shall be provided to LESSOR.
(9) During the month of September 2015, LESSOR and SUBLESSOR shall meet in
person and discuss an extension, renewal, revision, or other continuation of the MASTER
LEASE AGREEMENT. In the event that each party desires to continue their business
relationship, both parties shall use their best efforts to enter into a binding lease
agreement mutually agreeable to the parties on or before April 1, 2016.
(10) Recognizing that the parties will act in reliance thereon, LESSOR represents and
warrants to SUBLESSOR, SUBLESSEE, and NEW SUBLESSEE that LESSOR is
authorized to execute and deliver this instrument without consent of any other party, or
that all other necessary consents have been obtained.
WITNESS the signatures and seals of LESSOR and SUBLESSOR as of this aO day in
2006;
LESSOR:
Witness: By:
Nam 6,C like
Title:
c
Witness: By: 4 Z&:,
Name.- Lisa Brownin
Title:
LESSEE / SUBLESSOR: UNI-MARTS. LLC
Witness:t
By:
Nr'a?f1
SUBLESSEE : SAIMA INTERNATIONAL. LLC
Witness:
By:
Name: iaz Shaikh
Title:
AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the '?3day of L 1+??'??
2006 by and between Uni-Marts, LLC, a Pennsylvania limited liability company ("Uni-Marts")
and Saima International, Inc., -a Pennsylvania corporation (the "Dealer").
Background
Uni-Marts is the owner or ground lessee of certain property located at the location(s) set
forth in Exhibit "A" attached hereto (collectively or individually, the "Property"). Uni-Marts and
Dealer are parties to a certain leases (or subleases, as the case may be) (collectively or
individually, the "Lease") and certain other agreements pursuant to which Dealer leases the
Property from Uni-Marts and operates a business (the "Business") thereon (the Lease and such
other agreements are referred to herein as the "Dealer Agreements" and are more particularly
described in Exhibit "B" attached hereto).
Dealer is contemplating seeking out a party or parties (collectively or individually, the
"Subdeaiers") who may wish to sublease the Property and operate the Business pursuant to an
agreement with Dealer (such a transaction, a "Subdealerization"). In connection with a
Subdealerization, Dealer would sublease the Property to the Subdealer and authorize the
Subdealer to act on Dealer's behalf in certain aspects of the Dealer Agreements. In the event
Dealer desires to consummate such a transaction, Dealer acknowledges that it. will need to
request the consent and approval of Uni-Marts to said Subdealerization.
Uni-Marts is willing to consent to Subdealerizations, subject to the terms and conditions
contained herein.
NOW, THEREFORE, for and in consideration of the covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1- Notice and Request for Consent: Granting of Consent If Dealer wishes to enter into
a Subdealerization, Dealer shall identify the relevant Property and and provide Uni-Marts with
the name of the proposed Subdealer (the "Proposed Subdealer") and, if the Proposed Subdealer is
an entity, the names of all principals thereof. If requested, Dealer shall provide Uni-Marts with
financial and other information regarding the Proposed Subdealer. If the Proposed Subdealer
evidences, to Uni-Marts' reasonable satisfaction, the capacity to operate the Business in
accordance with the Dealer Agreements, Uni-Marts shall consent in writing to the
Subdealerization.
2. Third = Consents. Following approval of a proposed Subdealerization by Uni-
Marts, Uni-Marts shall use all commercially reasonable efforts to obtain any third party consents
required to authorize Uni-Marts to grant such approval ("Third Party Consents"). Dealer agrees
that Uni-Marts shall not be required to consent to, or request Third Party Consents with respect
to, any of the Properties listed on Exhibit "C" prior to the date which is sixty (60) days after the
date hereof. Uni-Marts' consent set forth in Section 1 of this Agreement shall be deemed
931530.4 Sam
conditioned upon, and not effective until, receipt of all required Third Party Consents, and no
Subdealerization shall be valid unless all required Third Party Consents are obtained.
3. Subdealer a ion. Dealer agrees that any Subdealerization shall be subject to the
following requirements:
a. Dealer shall notify Uni-Marts not less than thirty (30) days in advance of the
proposed date of the Subdealerization (the actual date of Subdealerization, the "Closing Date").
b. On the Closing Date, Dealer and Subdealer shall provide Uni-Marts, via
facsimile transmission:
i. a written confirmation from Dealer and Subdealer that the
Subdealerization has occurred ("Closing Notice");
ii. if agreed to by Dealer, a letter executed by Dealer and Subdealer
listing any existing fuel supply agreements between Uni-Marts and the Dealer pertaining to the
Property, and authorizing the Subdealer to order fuel from Uni-Marts under such agreements (the
"Fuel Order Authorization"); and
iii. a certification from Subdealer to Uni-Marts confirming that
Subdeater shall be bound by and shall comply with the terms and provisions of the Dealer
Agreements, including the Lease, during the term of the Subdealerization (the "Certification").
c. Dealer and Subdealer shall enter into a sublease dated as of the Closing Date
in substantially the form attached hereto as Exhibit "D" (the "Sublease").
d. Within two (2) business days after the Closing Date, Dealer shall provide Uni-
Marts with original executed copies of the Closing Notice, the Fuel Order Authorization (if
applicable), the Certification and the Sublease.
4. Other Subdealerization Requirements. Dealer shall be responsible to ensure that
Subdealer has all permits and/or approvals necessary for Subdealer to operate the Business.
Dealer shall be responsible for ensuring that the Subdealer cooperates to provide to Uni-Marts all
information that it requires to transfer accounts and otherwise proms the Subdealerization.
Dealer shall be responsible for complying with any notice and consent requirements, if any,
imposed by any of Dealer's lenders, if any, with respect to the Subdealerization.
5. Effect of ¢mment and Consent. This Agreement is personal to Uni-Marts and shall
not be deemed to modify or amend any provisions of the Lease. Neither this Agreement nor any
consent to Subdealerization shall be deemed to constitute a consent by Uni-Marts to any
Subdealerization other than that expressly consented to, or to any other future Subdealerization,
assignment of the Lease or sublease of the Property. Notwithstanding anything to the contrary
contained herein or in any other document, in the event that the Dealer has been granted or holds
an option, right of first offer or right of first refusal to purchase all or part of the Property, such
option or right is terminated as of the date of this Agreement.
6. Esto gel: Release.
Y31MA Soros
-2-
a. Dealer and Guarantor acknowledge that as of the date of this Agreement (a)
there is no default or failure on the part of Uni-Marts in the performance of its obligations under
the Dealer Agreements, and (b) neither Dealer nor Assignee has any defense, offset, claim or
counterclaim under the Dealer Agreements or otherwise against Uni-Marts.
b. Dealer and Guarantor hereby release and forever discharge Uni-Marts, its
affiliated entities, and their respective members, managers, partners, shareholders, officers,
directors, agents, counsel, representatives, successors, assigns and employees (the "Releasees"),
of and from any and all claims, ads, damages, demands, rights of action, causes of action, suits,
debts, claims and demands, in law or in equity, foreseen or unforeseen, matured or unmatured,
known or unknown, accrued or unaccrued, whatsoever which Dealer or Guarantor now has or
ever had, based upon (i) any act, transaction, practice, conduct, representation or failure to act
and/or omission of Releasees that occurred prior to the date hereof, including in connection with
the PSA and all transactions contemplated thereby with respect to any and all locations operated
by Dealer and/or Guarantor; (ii) the condition of the Property or any other property leased by
Dealer; and (iii) claims based on allegations of fraud or any claim that the PSA, this release or
any other agreements between Dealer and/or Guarantor and Uni-Marts were in any way
fraudulently induced. Dealer and Guarantor covenant and agree not to commence or prosecute
any action or proceeding against Releasees or to assert against Releasers in any action or
proceeding any matter whether or not now known, based upon (i) any act, transaction, practice,
conduct, representation or failure to act and/or omission of Releasees that occurred prior to the
date hereof, including in connection with the PSA and all transactions contemplated thereby with
respect to any and all locations operated by Dealer and/or Guarantor; (ii) the condition of the
Property or any other property leased by Dealer; and (iii) claims based on allegations of fraud or
any claim that the PSA, this release or any other agreements between Dealer and/or Guarantor
and Uni-Marts were in any way fraudulently induced.
c. Dealer and Guarantor understand and agree that Dealer and Guarantor may
hereafter become aware of facts different from, or in addition to, those which they now know to
be or believe to be true related in any way to any of the aratters being released hereby as set forth
in Section 6(b), above. Dealer and Guarantor agree that the release and covenant not to sue
given by them in Section 6(b), above, shall remain effective in all respects, notwithstanding such
different or additional facts and any subsequent discovery thereof.
d. Dealer and Guarantor further understand and agree that the release and
covenant not to sue given by Dealer and Guarantor in Section 6(b), above, is intended to be the
very broadest release and covenant not to sue possible, and includes, but is in no way limited to,
any claim for fraud and any claim that this Agreement was fraudulently induced and a release of
every claim that could ever be brought by Dealer and/or Guarantor arising directly or indirectly
out of any of the matters being released hereby as set forth in Section 6(b), above, including, but
not limited to, any and all claims for relief and damages of whatever kind.
e. Dealer and Guarantor further acknowledge and agree that they are relying
wholly on their own judgment, belief, and knowledge of the nature and extent of their damages
or possible damages and any potential liability therefore, and/or the judgment of their own
counsel, and that the release and covenant not to sue given by them in Section 6(b), above, is
made without any reliance upon any statement or representation by Uni-Marts or any of its
9313)0.65/JAlfi '3-
r ?'
agents and/or representatives. Dealer and Guarantor hereby expressly deny that any such
statements or representations have been made.
f. In the event that the foregoing provisions of Section 6 hereof should be
determined by a court or other tribunal of competent jurisdiction to exceed the release and
covenant not to sue limitations permitted by the applicable law in the jurisdiction in which
enforcement of this Agreement is sought, then such provisions shall be deemed reformed in such
jurisdiction to the maximum release and covenant not to sue limitations permitted by such
applicable law, and the parties hereby grant any court or other tribunal of competent jurisdiction
the authority to effect such reformation.
7. Notices. Except as otherwise set forth above, any notices required or permitted to be
given under this Agreement shall be given in writing and shall be delivered (a) in person, (b) by
a commercial overnight courier that guarantees next day delivery and provides a receipt, or
(c) by legible facsimile (followed by hard copy sent concurrently with such facsimile, in
accordance with preceding subsections (a) or (b)), and such notices shall be addressed as
follows:
If to Dealer:
Saima International, Inc.
3811 Market Street
Camp Hill, PA 17011
Attn: Aijaz Shaikh, President
Facsimile No.:
If to Uni-Marts:
Uni-Marts LLC
477 East Beaver Avenue
State College, PA 16801
Attn: Bill Long
Facsimile No.: (814) 234-8712
NL W U PDATt=!) 14 bbRa?5
S-AIMA INVL, 1Nc,
iqs'$ SPRtKa- t:zO&D
CARL-ISLE PA 1-? o 13
fiA? 4cQ ,t3g3
or to such other address as the intended recipient may from time to time specify in writing to the
other parties. Any notice shall be effective only upon receipt (or refusal by the intended
recipient to accept delivery). Notice given by facsimile shall be effective upon receipt of such
facsimile (subject to the requirement that hard copy be sent concurrently in accordance with this
Section); however, if the facsimile is received after 5:00 p.m. prevailing local time at the place of
receipt, notice by facsimile shall not be effective until the next business day.
8. Miscellaneous.
a. The headings and captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of this Agreement or
931330A S/SRIfi
any of its provisions. Where the context so requires, the use of the singular shall include the
plural and vice versa and the use of the masculine shall include the feminine and the neuter.
?. b. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
c. Neither this Agreement nor any memorandum or short form thereof may be
recorded by Dealer or Assignee.
d. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute one and the same
instrument.
e. This Agreement and the Exhibits attached to this Agreement contain the final
and entire agreement among the parties with respect to the subject matter hereof and are intended
to be an integration of all prior negotiations and understandings. No change or modification to
this Agreement shall be valid unless the same is in writing and signed by the parties to this
Agreement.
f. If any provision of this Agreement, or the application thereof to any person,
place or circumstance, shall be held by a court or other tribunal of competent jurisdiction to be
invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied
to other persons, places and circumstances shall remain in full force and effect.
g. In the event of any dispute(s) arising hereunder, whether regarding the
interpretation of any provisions hereof or otherwise, the parties agree that the appropriate venue
for the resolution of such dispute(s) to which such dispute(s) shall be submitted are the courts of
Centre County, Pennsylvania.
h. Dealer and Guarantor represent that they have the full authority to enter into
and perform this Agreement and their obligations thereunder, and that they have obtained all
consents from other parties that may be necessary.
[Remainder of page intentionally left blank]
9]1"DA UW
'5'
r, .
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
DEALER;
SAIMA INTERNATIONAL., INC.
By. vg* V??
Print Name: "az Shaft
ch
Title: President
UNI-MARTS:
UNI- S, LLaC
By.
Print ; Alex D, Sahakian
Title: Mana er
JOINDER AND RATIFICATION
The undersigned (collectively, "Guarantor") have entered into one or more guaranties of
some or all of the Dealer Agreements. Guarantor hereby joins in and agree to be bound by the
foregoing Agreement. Guarantor further agrees and confirms that its respective guaranties are in
full force and effect and subject to no defenses, and that the same shall remain in full force and
effect following any Subdealerization. Uni-Marts shall be under no obligation to notify the
Guarantor in the event that it consents to a Subdealerization_
GUARANTOR:
'?i r4?
Print Name: i'az Shaikh
93u3U S/1I06
-6-
Exhibit "A"
Locations
Site No.: 94232
Location: 50 East Main Street. Route 641
Plainfield, PA 17081
County: Cumberland
Site No.: 94234
Location: 1962 SMjug Road
Carlisle. PA 17013
County: Cumberland
Site No.: 94249
Location: _ 6896 Carlisle Pike
New Kingston. PA 17055
County: Cumberland
Site No.: 94251
Location: 424 North Baltimore Street
W. Hotly Sprigs, PA 17065
County: Cumberla 1d
Site No.: 94255
Location: 98-100 South 2nd Street
West Fairview. PA 17025
County: Cumberland
Site No.: 94905
Location: 350 North Main Street
Mercersbu;g,. PA 17236
County: Franldin
93I570A SM
.7-
5.
Exhibit "B"
Dealer Agreements
113uplicate page for each site, as needed]
Site No.: 94232
Location: 50 East Main Street. Route 641
Plainfield. PA 17081
Countv: Cumberland
All Dealer Agreements are dated August 2, 2005 unless otherwise specifically specified below.
. 1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the TSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between.Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
"1330.4 SM
f,. -8-
Exhibit "B"
Dealer Agreements
(Duplicate page for each site, as needed]
Site No.: 94234
Location: 1962 Sprigg Road
Carlisle, PA 17013
Co Ly: Cumberland
All Dealer Agreements are dated August 2, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the "PSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
931570. 4 513M
-9-
Exhibit "B"
Dealer Agreements
[Duplicate page for each site, as needed]
Site No.: 94251
Location: 424 North Baltimore Street
Mt. Holly Springs. PA 170¢5
County: Cumberland
All Assignment and Assumption of Dealer Agreements are dated December 1, 2005 unless
otherwise specifically specified below.
1. Consent to Assignment Agreement Purchase and Sale Agreement dated November 1,
2005 between Saima International, Inc., Richard and Kyong, Inc. and Uni-Marts, as amended
(the "PSA").
2. Assignment and Assumption of Lease Agreement by and between Uni-Marts and
Dealer (the "Lease"), for certain space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
1 5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
I..
9JI504 511*h
-11-
Exhibit `B"
Dealer Agreements
(Duplicate page for each site, as needed)
Site No.: 94255
Location: 98-100 South 2nd Street
West Fairview. PA 17025
County Cumberland
All Dealer Agreements are dated August 3, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated June 8, 2005 between Saima International, Inc.
and Uni-Marts, as amended (the "PSA" ).
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
i
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. CoIlateral Deposit Agreement.
01MA 1W
-12-
Exhibit "B"
Dealer Agreements
[Duplicate page for each site, as needed]
Site No.: 94905
Location: 350 North Main Street
Mercersburg, PA 17236
County: Franklin
All Dealer Agreements are dated June 8, 2005 unless otherwise specifically specified below.
1. Purchase and Sale Agreement dated March 31, 2005 between Saima International,
Inc. and Uni-Marts, as amended (the "PSA").
2. Lease Agreement by and between Uni-Marts and Dealer (the "Lease"), for certain
space located at the Property.
3. Trademark and Licensing Agreement by and between Uni-Marts and Dealer
pertaining to the Property.
4. Environmental Indemnity and Service Agreement by and between Uni-Marts and
Dealer pertaining to the Property
5. Roof Maintenance Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
6. ATM Servicing Agreement by and between Uni-Marts and Dealer pertaining to the
Property.
7. Fuel Supply Agreement by and between Uni-Marts and Dealer respecting fuel sales
on the Property.
8. Commodity Schedule - Motor Fuels by and between Uni-Marts and Dealer.
9. Commodity Schedule - Kerosene by and between Uni-Marts and Dealer.
10. Collateral Deposit Agreement.
931330.4 6n2106 -13-
Exhibit "C"
Slike Sites
Site No.: 94249
Location: 6896 Carlisle Pike
New Kingston, PA 17055
County: Cumberland
Site No.: 94251
Location: 424 North Baltimore Street
Mt. Holly Springs, PA 17065
County: Cumberland
Site No.: 94255
Location: 98-100 South 2nd Street
West Fairview, PA 17025
County: Cumberland
931530.4 6.II106
-14-
Exhibit "D"
Sublease Form
i?
4
931530.4 61?JDb _ 1 `_
i
931899.2 8(7/06
EXHIBIT "D"
FIXED RENT
19
Site No.: 94255
Location: 98-100 South Second Street
West Fairview, Pa. 17025
Dealer: SAIMA INTERNATIONAL, INC..
Subdealer: NOOR AHKTER, INC.
NOTICE OF FUEL PURCHASING AUTHORITY
THIS NOTICE OF FUEL PURCHASING AUTHORITY (the "Notice") is made as of
the ?-* day of Te9tew,?z,r200(A, by SAIMA INTERNATIONAL, INC, a
Pennsylvania corporation (the "Dealer") and NOOR AHKTER, INC, a a Pennsylvania
corporation (the "Subdealer") to the benefit of UNI-MARTS, LLC ("Uni-Marts")
WITNESSETH:
Dealer and Uni-Marts are parties to an Agreement dated May 23, 2006 (the "Agreement")
pursuant to which the parties agreed to cooperate in proposed Subdealerizations of one or more
Properties operated by Dealer. Capitalized terms used herein but not defined shall have the
meanings given in the Agreement.
On this date, Dealer and Subdealer are consumating the Subdealerizing of the Property
identified above (the "94255 Subdealerization"). In connection therewith, Dealer has agreed to
authorize Subdealer to place fuel orders from Uni-Marts under Dealer's existing Fuel Supply
agreements, as listed in Exhibit "A" attached hereto (the "Fuel Supply Agreements"). This
Notice is being delivered pursuant to Subsections 3(b)(ii) of the Agreement.
NOW, THEREFORE, understanding that Uni-Marts will rely upon this Notice in
accepting fuel orders and delivering fuel:
1. Dealer and Subdealer hereby confirm to Uni-Marts that Subdealer is authorized to
order fuel from Uni-Marts under the Fuel Supply Agreements;
2. Subdealer hereby agrees that, from and after the date hereof, it shall be bound by
and shall comply with all terms and provisions of the Fuel Supply Agreements, during the term
of the 94255 Subdealerization, and shall timely pay for all fuel delivered to Subdealer;
3. Dealer may terminate this Authorization at any time by providing written notice
thereof to Uni-Marts; and
4. Dealer and Subdealer represent and warrant to Uni-Marts that Subdealer has all
permits and/or approvals necessary to operate the Business and to market fuel products, and that
Subdealer shall maintain all such permits and approvals for so long as Subdealer markets fuel
products at the Property.
943968.1 BRIDE
Nothing contained herein shall be deemed to modify any provision of the Fuel Supply
Agreements, all of which remain in full force and effect. Dealer acknowledges that Dealer
remains primarily responsible for all obligations to Uni-Marts under the Fuel Supply
Agreements, including all payment obligations arising thereunder. Subdealer acknowledges that
Uni-Marts shall not be required to obtain Subdealer consent in connection with any future
modification or termination of the Fuel Supply Agreements by Uni-Marts.
This Notice shall inure to the benefit of Uni-Marts, its successors and assigns, and shall
be binding upon Dealer, Subdealer and their successors and assigns.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Seller has
executed this Certificate the day and year first above written.
DEALER:
SAIMA INTERNATIONAL, a Pennsylvania
corporation
By:
Name: AIIAZ SHATkH
Title: President
SUBDEALER:
NOOR AHKTER, INC., a Pennsylvania corporation
By: M
Name: MOHAMMAD. AHKTER
Title: President
942968.1 &nM6
-2-
Site No.: 94255
Location: 98-100 South Second Street
West Fairview, Pa. 17025
Dealer: SAIMA INTERNATIONAL, INC..
Subdealer: NOOR AHKTER, INC.
CLOSING NOTICE AND CERTIFICATION
THIS CLOSING NOTICE AND CERTIFICATION (the "Notice") is made as of the
2.0 - day of • j;L 00 G, by SAIMA INTERNATIONAL, INC, a Pennsylvania
corporation (the "Dealer") and NOOR AHKTER, INC, a a Pennsylvania corporation (the
"Subdealer") to the benefit of UNI-MARTS, LLC ("Uni.-Marts")
WITNESSETH:
Dealer and Uni-Marts are parties to an Agreement dated May 23, 2006 (the "Agreement")
pursuant to which the parties agreed to cooperate in proposed Subdealerizations of one or more
Properties operated by Dealer. Capitalized terms used herein but not defined shall have the
meanings given in the Agreement.
On this date, Dealer and Subdealer are consummating the Subdealerization of the
Property identified above (the "# 94255 Subdealerization"). This Notice is being delivered
pursuant to Subsections3(b)(i) and 3(b)(iii) of the Agreement.
NOW, THEREFORE, in order to induce Uni-Marts to consent to the # 94255
Subdealerization, and understanding that Uni-Marts will rely upon this Notice in so doing:
1. Dealer and Subdealer hereby confirm to Uni-Marts that closing on the # 94255
Subdealerization has occurred, effective as of the date hereof; and
2. Subdealer hereby agrees that, from and after the date hereof, it shall be bound by
and shall comply with all terms and provisions of the Dealer Agreements, including the Lease,
during the term of the #94255 Subdealerization;
3. Dealer and Subdealer represent and warrant to Uni-Marts that Subdealer has all
permits and/or approvals necessary to operate the Business, and that Dealer has complied with
all notice and consent requirements, if any, imposed by Dealer's lenders, if any, with respect to
the 4905 Subdealerization.
Nothing contained herein shall be deemed to modify any provision of the Dealer
Agreements, all of which remain in full force and effect. Dealer acknowledges that Dealer
remains primarily responsible for all obligations to Uni-Marts under the Dealer Agreements,
including all payment obligations arising thereunder. Subdealer acknowledges that Uni-Marts
942934.1 BMW
shall not be required to obtain Subdealer consent in connection with any future modification or
termination of the Dealer Agreements by Uni-Marts.
This Notice shall inure to the benefit of Uni-Marts, its successors and assigns, and shall
be binding upon Dealer, Subdealer and their successors and assigns.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Seller has
executed this Certificate the day and year first above written.
DEALER:
SAIMA INTERNATIONAL, INC. a Pennsylvania
corporation
i
By:
Name: AUAZ SHA H
Title: President
SUBDEALER:
NOOR AHKTER, INC., a Pennsylvania corporation
By:
Name: MOHAMMAD. AHKTER
Title: President
943934.1 gnM6 _2_
r
EXHIBIT "A"
Any Sublease Amendments between Sublessee and New Sublessee - attached.
Sit kE ?RO QER-rY
EXHIBIT "D"
Attention: Mr. Bill Long
Sub. Dealer's Name Mohammad P. Akhter
DOB 09-18-69
S S # 075-74-8389
Sub- Dealer's Entity Noor Akhter Inc
Proposed Sub-leting Location West Fair View #94255
Home Address 4314 New Hampshire Dr.
Harrisburg Pa 17112
Company Address 98-100 S 2nd Street
West Fair View Pa 17025
Phone Home (717) 943-4027
Phone Office (717) 732-9975
Fax (717) 732-9975
Term of Lease 7 years (Total 84 Months) with
Renewal Option (08-2006) to (08-2013)
Sub- Lease Amount $ 1000.00 plus Regular Reza
Note: The Sub- Dealer will be responsible for all applicable taxes, maintenance, utilities
etc and he will work independently.
The expected date of Sub- Dealerisation is 07-31-2006
'T'hanks
tj Shaikh
1958 Spring Road
Carlisle Pa 17013
(717) 491-7048
L-Unim Mart
Date: July 26, 2005
National City Bank, successor by merger to
The Provident Bank, N.A.
20 Stanwix Street, 19th Floor
Locator 25-192
Pittsburgh, PA 15222-1323
Attn: Brian V. Ciaverella
412-644-8007
412-644-6224(Fax)
Brian.Ciaverella@nationalcity.com
RE: Alternate Transaction or Alternate Non-Encumbered Transaction Notice - Store #04255
Dear Mr. Ciaverella:
This notice ("Notice") is being delivered pursuant to Section 4(e)(iii)(A) of that certain
F -..: Seventh Amendment to Loan Agreement dated as of the 31 day of January 2005 by and between
Uni-Marts, LLC and The Provident Bank.
Uni-Mart anticipates closing an Alternate Transaction and/or Alternate Non-Encumbered
Transaction on August 3, 2005 (the "Anticipated Closing Date").
The Properties, which are the subject of the Alternate Transaction and/or Alternate Non-
Encumbered Transaction, and related Estimated Inventory Value relating to each, are
listed in Attachment 1 to this Notice (the "Properties").
Attached hereto is a copy of the Purchase and Sale Agreement for the subject Alternate
Transaction and/or Alternate Non-Encumbered Transaction.
Please arrange for UCC-3 Termination Statements and/or UCC-3 Releases to be prepared,
terminating or releasing all security interests of the Bank pertaining to assets at the Properties.
Please deliver (or email) the UCC-Ts prior to the Anticipated Closing Date to the following
address.
NRC Realty Advisors, LLC
363 West Erie Street, #300E
Chicago, IL 60610
LaTisha L. McClinic
(312) 278-6824 - Direct
/ (888) 892-2646 - Fax
tisha.mcclinic@nrc.com
Form 1
85729S.2 7/26/05
Uni-Mart, LLC - 477 East Beaver Avenue - State College, PA 16801-5690 - Phone: (814) 234-6000
(. If you have any questions, please contact me or George Cerminara at (814) 234-6000.
Thank you for your assistance.
Cc: Donald Ambrose, DKW
LaTisha McClinic, NRC.
Martin Doyle, SE
f,
Very truly yours,
UNI-MARTS, LLC, a Pennsylvania limited liability
company
By: Fit n.:
Name: N. Grego e ' k
Title: Executive Vice President and CFO
857295.2 7/26105
-2-
Attachment 1 to Notice
I'
Property Address Unit No. Estimated
Inventory Value
98-100 SOUTH 2nd STREET 04255 $79,880.00
WEST FAIRVIEW, PA 17025
857295.2 W26105
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
91`,<<p of l.tlttlG(??fT
FILED-r3F IOC
C1I" THE PROTHONOTARY
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
2011 JUL 14 PM 2= 24
'UMBERLAND GOUNT1 Y
PENNSYLVANIA
Uni-Marts Liquidation Trust Case Number
vs.
NoorAkhter, Inc. (et al.) 2011-4907
SHERIFF'S RETURN OF SERVICE
06/14/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search
and inquiry for the within named defendant, to wit: Noor Akhter, Inc. c/o Mohammad P. Akhter, but was
unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvani,'
to serve the within Complaint and Notice according to law.
06/16/2011 01:17 PM - Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a
diligent search and inquiry for the within named defendant to wit: Saima International, Inc., but was
unable to locate them in his bailiwick. He therefore returns the within Complaint and Notice as not found
as to the defendant Saima International, Inc. Deputies were advised Saima International, Inc. is out of
business.
06/20/2011 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search
and inquiry for the within named defendant to wit: Noor Akhter, Inc., but was unable to locate them in his
bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Noor
Akhter, Inc. Request for service at 98-100 S. 2nd Street, Enola, Pennsylvania 17025 the Defendant was
not found. Deputies were advised, Noor Akhter, Inc. was the previous owners at this location.
06/28/2011 Dauphin County Return: And now, June 28, 2011 I, Jack Lotwick, Sheriff of Dauphin County,
Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Noor Akhter, Inc. the
defendant named in the within Complaint and Notice and that I am unable to find them in the County of
Dauphin and therefore return same NOT FOUND. Request for service at 4314 New Hampshire Drive,
Harrisburg, Pennsylvania 17112 the Defendant was not found. Current resident advised Deputies, he
bought this residence from the Defendant who no longer is located at this address.
SHERIFF COST: $105.00
July 13, 2011
SO ANSWERS,
RON R ANDERSON, SHERIFF
!,c f;oimrySuite Sheriff. re'.enso't. In
CDavid a Buell
Prothonotary
Office of the Prothonotary
Cum5erfand County, Pennsylvania
rkS. Sohonage, ESQ,
Solicitor
`7' TU7 CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE — THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
PA R.C.P.230.2. •
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthouse Square 0 Suite100 ® Carlisle, TA C Thone 717 240-6195 0 'FaK 717 240-6573