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HomeMy WebLinkAbout11-4910SKLAR - MARKIND By: Krista Frankina Fiore I.D. No. 82382 102 Browning Lane Building B, Suite 1 Cherry Hill, NJ 08003 File No.: UM 110042 FIUED - ?rI'E C u3 T4t f o!t 4io' 0i' i?61TN13 Al's1 CU,'tBER? AND COUNTY PENNSYLVA, N1A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW UNI-MARTS LIQUIDATION TRUST Plaintiff VS. :No. ''-Id Clv? 1 TERM CIVIL ACTION 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 Telephone: 717-249-3166 pd, "'wo A?? O/Z- 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 provisions 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. Saima International, Inc. Defendants. Docket No. COMPLAINT Plaintiff Uni-Marts Liquidation Trust ("Trust"), by its undersigned counsel, sets forth the following as its Complaint against Saima International, Inc. 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 "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. 1 2. Defendant, Saima International, Inc. ("Saima") is a corporation formed in Pennsylvania with its registered address of 1958 Spring Road, Carlisle, Pennsylvania 17013. II. BACKGROUND 3. 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]. 4. 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. 5. The Court confirmed the Plan by order dated December 30, 2009 (the "Confirmation Order") [Docket No. 1425]. 6. 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 I I29(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." 7. 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. 8. In accordance with Section 2.1(mm) of the Plan, the Effective Date of the Plan occurred on May 28, 2010 (Docket No. 1603). 9. 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...." 2 III. JURISDICTION AND VENUE 10. This Court has jurisdiction over this adversary proceeding. 11. Venue is proper in this Court. IV. FACTUAL ALLEGATIONS 12. 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. 13. Saima International was one of Uni-Marts' dealers, and on August 3, 2005, entered into a Sublease (the "Sublease") with Uni-Marts for certain real property and improvements thereon for Store No. 94249 located at 6896 Carlisle Pike, New Kingston, Pennsylvania 17055 through and until September 29, 2017. A true and correct copy of the Sublease is attached hereto as Exhibit A. 14. On August 3, 2005, Saima entered into that certain Fuel Supply Agreement (the "Fuel Supply Agreement") for Store No. 94249 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 135,000 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. 15. On or about August 2, 2005, Saima also entered into that certain Trademark License Agreement (the "Trademark Agreement") for Store No. 94249 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 Sublease, or until September 29, 2017. A true and correct copy of the Trademark Agreement is attached as Exhibit C. 16. Upon information and belief, on June 12, 2007 Saima unilaterally closed or abandoned Store No. 94249. 17. Accordingly, as of June 12, 2007, Saima has been in default under Sublease, Fuel Supply Agreement and Trademark Agreement and owes the Trust (i) $40,149.56 for rent and other past due sums ("Sublease Defaults"), (ii) $5,850.00 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 pay sums due under the Trademark Agreement ("Trademark Defaults", and together with Sublease Defaults and Fuel Supply Agreement Defaults, the "Defaults").' 18. On August 2, 2005, Saima also entered into a lease (the "Lease") with Uni-Marts for certain real property and improvements thereon for Store No. 94234 located at 1962 Spring Road, Carlisle, Pennsylvania 17013 through and until August 31, 2025. A true and correct copy of the Lease is attached hereto as Exhibit D. 19. On August 2, 2005, Saima entered into that certain fuel supply agreement (the "94234 Fuel Supply Agreement") for Store No. 94234 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 453,600 gallons per year (the "94234 Minimum Gallon Requirement"), through and until ten (10) years from August 2, 2005. A true and correct copy of the 94234 Fuel Supply Agreement is attached hereto as Exhibit E. 20. On or about August 2, 2005, Saima also entered into that certain trademark license agreement (the "94234 Trademark Agreement") for Store No. 94234 with Uni-Marts i On or about September 30, 2008, this Honorable Court, in the bankruptcy proceedings issued an order permitting Uni-Marts to abandon certain leases, one of which was the Sublease of this subject lawsuit so that damages pursuant to the Sublease and Trademark Agreement are calculated to September 30, 2008. 4 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 August 31, 2025. A true and correct copy of the 94234 Trademark Agreement is attached as Exhibit F. 21. Upon information and belief, on June 12, 2007 Saima unilaterally closed or abandoned Store No. 94234. 22. Accordingly, as of June 12, 2007, Saima has been in default under Lease, 94234 Fuel Supply Agreement and 94234 Trademark Agreement and owes the Trust (i) $1,569,139.81 for rent plus other past due sums including, but not limited to the dealer receivables in the amount of $39,524.27 (See Exhibit G) ("Lease Defaults"), (ii) $74,088.00 for failure to comply with the Minimum Gallon Requirement under the Fuel Supply Agreement ("94234 Fuel Supply Agreement Defaults") and (iii) $43,600.00 for failure to pay sums due under the 94234 Trademark Agreement ("94234 Trademark Defaults", and together with Lease Defaults and 94234 Fuel Supply Agreement Defaults, the "94234 Defaults"). 23. Saima was one of Uni-Marts' dealers, and on August 2, 2005, entered into a lease (the "94232 Lease") with Uni-Marts for certain real property and improvements thereon for Store No. 94232 located at 50 Main Street, Route 641, Plainfield, Pennsylvania 17081 through and until August 2, 2005. A true and correct copy of the 94232 Lease is attached hereto as Exhibit H. 24. On August 2, 2005, Saima entered into that certain fuel supply agreement (the "94232 Fuel Supply Agreement") for Store No. 94232 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 612,000 gallons per year (the "94232 Minimum Gallon Requirement"), through and until ten (10) years from August 2, 2005. A true and correct copy of the 94232 Fuel Supply Agreement is attached hereto as Exhibit I. 25. On or about August 2, 2005, Saima also entered into that certain trademark license agreement (the "94232 Trademark Agreement") for Store No. 94232 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 August 31, 2025. A true and correct copy of the 94232 Trademark Agreement is attached as Exhibit J. 26. Upon information and belief, on June 12, 2007 Saima unilaterally closed or abandoned Store No. 94232. Accordingly, as of May 30, 2007, Saima has been in default under 94232 Lease, 94232 Fuel Supply Agreement and 94232 Trademark Agreement and owes the Trust (i) $1,293,237.87 for rent plus other past due sums including, but not limited to the dealer receivables in the amount of $32,394.75 (See Exhibit K) ("94234 Lease Defaults"), (ii) $99,960.00 for failure to comply with the 94232 Minimum Gallon Requirement under the 94232 Fuel Supply Agreement ("94232 Fuel Supply Agreement Defaults") and (iii) $43,600.00 for failure to pay sums due under the 94232 Trademark Agreement ("94232 Trademark Defaults", and together with 94232 Lease Defaults and 94232 Fuel Supply Agreement Defaults, the "94232 Defaults"). COUNTI Breach of Contract - Defendant Saima - Store No. 94249 27. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 26 of this Complaint. 28. The Sublease was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 29. Uni-Marts performed all of its obligations under the Sublease. 6 30. Saima's Sublease Defaults constituted a material breach of the Sublease. 31. Uni-Marts suffered damages as a result of the Sublease Defaults, and as such Saima is liable to the Trust in an amount totaling at least $40,149.56. COUNT II Breach of Contract - Defendant Saima- Store No. 94249 32. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 31 of this Complaint. 33. The Fuel Supply Agreement was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 34. Uni-Marts performed all of its obligations under the Fuel Supply Agreement. 35. Saima's Fuel Supply Agreement Defaults constituted a material breach of the Fuel Supply Agreement. 36. Uni-Marts suffered damages as a result of the Fuel Supply Agreement Defaults, and as such Saima is liable to the Trust in an amount totaling at least $5,850.00. COUNT III Breach of Contract - Defendant Saima - Store No. 94249 37. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 38 of this Complaint. 38. The Trademark Agreement was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 39. Uni-Marts performed all of its obligations under the Trademark Agreement. 40. Saima's Trademark Defaults constituted a material breach of the Trademark Agreement. 7 41. Uni-Marts suffered damages as a result of the Trademark Defaults, and as such Saima is liable to the Trust in an amount totaling at least $3,000.00. COUNT IV Breach of Contract - Defendant Saima - Store No. 94234 42. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 41 of this Complaint. 43. The Lease was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 44. Uni-Marts performed all of its obligations under the Lease. 45. Saima's Lease Defaults constituted a material breach of the Lease. 46. Uni-Marts suffered damages as a result of the Lease Defaults, and as such Saima is liable to the Trust in an amount totaling at least $1,608,664.08. COUNT V Breach of Contract - Defendant Saima - Store No. 94234 47. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 46 of this Complaint. 48. The 94234 Fuel Supply Agreement was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 49. Uni-Marts performed all of its obligations under the 94234 Fuel Supply Agreement. 50. Saima's 94234 Fuel Supply Agreement Defaults constituted a material breach of the 94234 Fuel Supply Agreement. 8 51. Uni-Marts suffered damages as a result of the 94234 Fuel Supply Agreement Defaults, and as such Saima is liable to the Trust in an amount totaling at least $74,088.00. COUNT VI Breach of Contract - Defendant Saima - Store No. 94234 52. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 51 of this Complaint. 53. The 94234 Trademark Agreement was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 54. Uni-Marts performed all of its obligations under the 94234 Trademark Agreement. 55. Saima's 94234 Trademark Defaults constituted a material breach of the 94234 Trademark Agreement. 56. Uni-Marts suffered damages as a result of the 94234 Trademark Defaults, and as such Saima is liable to the Trust in an amount totaling at least $43,600.00. COUNT VII Breach of Contract - Defendant Saima - Store No. 94232 57. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 56 of this Complaint. 58. The 94232 Lease was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 59. Uni-Marts performed all of its obligations under the 94232 Lease. 60. Saima's 94232 Lease Defaults constituted a material breach of the 94232 Lease. 61. Uni-Marts suffered damages as a result of the 94232 Lease Defaults, and as such Saima is liable to the Trust in an amount totaling at least $1,325,632.62. 9 COUNT VIII Breach of Contract - Defendant Saima - Store No. 94232 62. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 61 of this Complaint. 63. The 94232 Fuel Supply Agreement was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 64. Uni-Marts performed all of its obligations under the 94232 Fuel Supply Agreement. 65. Saima's 94232 Fuel Supply Agreement Defaults constituted a material breach of the 94232 Fuel Supply Agreement. 66. Uni-Marts suffered damages as a result of the 94232 Fuel Supply Agreement Defaults, and as such Saima is liable to the Trust in an amount totaling at least $99,960.00. COUNT IX Breach of Contract - Defendant Saima - Store No. 94232 67. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 66 of this Complaint. 68. The 94232 Trademark Agreement was a valid, enforceable contractual obligation of Defendant Saima to Uni-Marts. 69. Uni-Marts performed all of its obligations under the 94232 Trademark Agreement. 70. Saima's 94232 Trademark Defaults constituted a material breach of the 94232 Trademark Agreement. 71. Uni-Marts suffered damages as a result of the 94232 Trademark Defaults, and as such Saima is liable to the Trust in an amount totaling at least $43,600.000. 10 COUNT X Attorneys' Fees and Costs 72. The Trust incorporates by reference each of the allegations set forth above in paragraphs 1 through and including 71 of this Complaint. 73. Pursuant to the Sublease, Lease, 94232 Lease, Fuel Supply Agreement, 94234 Fuel Supply Agreement, 94232 Fuel Supply Agreement, Trademark Agreement, 94234 Trademark Agreement, and 94232 Trademark Agreement, the Trust may recover reasonable attorneys' fees and expenses incurred by the Trust as a result of the Defaults, 94234 Defaults, and 94232 Defaults. 74. 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 Saima in the amount of at least $40,149.56 or such other sum as is determined at trial; b. On Count II, entry of judgment in favor of the Trust and against Saima in the amount of at least $5,850.00 or such other sum as is determined at trial; C. On Count III, entry of judgment in favor of the Trust and against Saima 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 $1,608,664.08 or such other sum as is determined at trial; e. On Count V, entry of judgment in favor of the Trust and against Saima in the amount of at least $74,088.00 or such other sum as is determined at trial; 11 f. On Count VI, entry of judgment in favor of the Trust and against Saima in the amount of at least $43,600.00 or such other sum as is determined at trial; g. On Count VII, entry of judgment in favor of the Trust and against Saima in the amount of at least $1,325,632.62 or such other sum as is determined at trial; h. On Count VIII, entry of judgment in favor of the Trust and against Saima in the amount of at least $99,960.00 or such other sum as is determined at trial; i. On Count IX, entry of judgment in favor of the Trust and against Saima in the amount of at least $43,600.00 or such other sum as is determined at trial; On Count X, entry of judgment in favor of the Trust and against Saima for attorneys' fees and expenses incurred in an amount to be determined at trial; and k. 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 I VW V/ - SKLAR -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 G:\Collection Placements\Unimart\Saima Master Complaint\Uni-Marts - Complaint Against Saima 94232-94234-94249.DOC 12 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: Krista Frankina Fiore, Esquire File No.: UM 110042 Exhibit A Site No.: 04249 Location: 6896 Carlisle Pike New Kingston PA 17055 Count : Cumberland Prime Lessor: CHRISTOPHER SLIKE Prime Lease: Lease dated 10/1/2003, as amended. SUBLEASE THIS SUBLEASE (this "Sublease") is made as of , 2005 (the "Effective Date"), by and between UNI-MARTS, LLC, a Pennsylv 'a 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 Glen Allen Avenue, Apt T-2, Silver Spring, MD 20906. WITNESSETH: 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, Thirty Thousand, Nine Hundred and Twelve Dollars ($30,912.00) 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. Fa 3 826288.11 7/21.05 "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 reasonably selected by the Sublessor shall be used. If the base year "(1982-1984=100)11 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 826288.1 17R 1105 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 7,71105 "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 926299.11712 INS 4 (including, without limitation, gas pumps, canopies and USTs) now or hereafter located on such real estate (whether or not affixed to such real estate). "Prime Lease" means that certain Lease identified on page 1 of this Sublease by and between Prime Lessor and Sublessor pertaining to the Premises, a copy of which is attached to this Sublease as Exhibit A. "Prime Lessor" means the lessor under the Prime Lease, being identified on page 1 of this Sublease, its successors and assigns. "Property" means the property owned by Prime Lessor upon which is situated the Premises. "Regulated Substances" means "petroleum" and "petroleum-based substances" or any similar terms described or defined in any of the Environmental Laws and any applicable federal, state, county or local laws applicable to or regulating USTs. "Release" means any presence, release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials, Regulated Substances or USTs. "Remediation" means any response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Material, Regulated Substances or USTs, any actions to prevent, cure or mitigate any Release, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or any evaluation relating to any Hazardous Materials, Regulated Substances or USTs. "Security Deposit" shall have the meaning described in Section 20.1. "State" means the state in which the Premises are located. "Sublease Term" shall have the meaning described in Section 2.2. "Sublease Year" shall have the meaning described in Section 2.3. "Sublessor's Broker" means N/A "Third Party Leases" means the subleases for certain portions of the Premises set forth on Exhibit B, attached hereto, and any replacement or renewal leases for the space leased pursuant to the leases listed on Exhibit B. 826288.11 7/21103 "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. "USTs" 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. 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. 3. 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. $26292.11 7/21/05 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. 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. 826288.11 721/05 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 Obliag tions. 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. 826288.11 721/05 8 6. Rent. 6.1. Base Rent. If the Effective Date is a date other than the first day of the month, Sublessee shall pay Sublessor on the Effective Date the Base Monthly Rental prorated on the basis of the ratio that the number of days from the Effective Date through the last day of the month containing the Effective Date bears to the number of days in such month. Therefore, on or before the first day of each calendar month during the Sublease Term, Sublessee shall pay Sublessor in advance the Base Monthly Rental. 6.2. Additional Rent. All sums of money required to be paid by Sublessee under this Sublease or the Prime Lease which are not specifically referred to as rent ("Additional Rental") shall be considered rent although not specifically designated as such. Sublessor shall have the same remedies for nonpayment of Additional Rental as those provided herein for the nonpayment of Base Annual Rental. 6.3. Rentals To Be Net to Sublessor. The Base Annual Rental payable hereunder shall be net to Sublessor, so that this Sublease shall yield to Sublessor the rentals specified during the Sublease Term and that all costs, expenses and obligations of every kind and nature whatsoever relating to the Premises shall be performed and paid by Sublessee. 6.4. Rent In General. All rental and other sums which Sublessee is required to pay hereunder shall be the unconditional obligation of Sublessee and shall be payable in full when due without any setoff, abatement, deferment, deduction or counterclaim whatsoever. Upon execution of this Sublease, Sublessee shall establish arrangements whereby payments of the Base Monthly Rental, any Additional Rental and impound payments payable to Sublessor, if any, are transferred by wire or other means directly from Sublessee's bank account to such account as Sublessor may designate. Any delinquent payment (that is, any payment not made within five calendar days after the date when due) shall, in addition to any other remedy of Sublessor, incur a late charge of 10% (which late charge is intended to compensate Sublessor for the cost of handling and processing such delinquent payment and should not be considered interest) and bear interest at the Default Rate, such interest to be computed from and including the date such payment was due through and including the date of the payment; provided, however, in no event shall Sublessee be obligated to pay a sum of late charge and interest higher than the maximum legal rate then in effect. 7. Use. 7.1. 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. 82628811 721/05 7.2. Temporary Closure. Except as set forth below, and except during periods when the Premises is untenantable by reason of fire or other casualty 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. 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. 8. Premises Accepted "AS-IS"; Maintenance Sublessee has inspected, or had the opportunity to inspect, the Premises and hereby accepts the Premises "AS IS" and "WHERE IS" with no representation or warranty of Sublessor as to the condition thereof. The Premises shall be kept in good, clean, sanitary and working condition; and, except for work which is the responsibility of Prime Lessor, Sublessee shall at all times at its own expense, maintain, repair and replace, as necessary, the Premises, whether or not the Premises were in such condition on the Effective Date. Assignment and Subletting. Sublessee acknowledges that Sublessor has relied both on the business experience and creditworthiness of Sublessee and upon the particular purposes for which Sublessee intends to use the Premises in entering into this Sublease. Without the prior written consent of Sublessor, (i) Sublessee shall not assign, transfer, convey, pledge or mortgage this Sublease or any interest therein, whether by operation of law or otherwise; (ii) no interest in Sublessee shall be assigned, transferred, conveyed, pledged or mortgaged, whether by operation of law or otherwise, including, without limitation, a dissolution of Sublessee; and (iii) Sublessee shall not sublet all, any or any part of the Premises. Sublessor agrees that it shall not unreasonably withhold or delay its consent to such matters, it being understood that Sublessor's consent may be based upon such matters as Sublessor may in its reasonable discretion determine, including, without limitation, the experience and creditworthiness of any assignee, the assumption by any assignee of all of Sublessee's obligations hereunder by undertakings enforceable by Sublessor, the transfer to any assignee of all necessary licenses to continue operating the Premises for the purposes herein provided, receipt of such representations and warranties from any assignee as Sublessor may 826293 I1 721M5 10 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 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 876288.11 7R 1405 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. Sublessee's 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 826288.11 721405 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 Requirements. 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 226298.117121/05 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 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 826388.11 721)03 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 826288.11 721/05 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 926189.11 7/21105 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 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, 926ng.I 17/2 M5 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. 826268.11 721105 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 626286.11 721/05 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 826288.11 721105 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. 1.1 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 Sublcssor'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 and/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, 826288.117/2 1 M 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 Term), 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 826286.11 7/2M3 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. 8262881172 5 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 926ng.11 7/2 MS 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 Obligations. 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. Iniunction, 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. 826M 11 7n1ms 25 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. 20.3. 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 shall 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 AdditionalRent by Sublessor and payment by Sublessee. 626M 11 7121105 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 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. 926298 11 721X05 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 Sublessee's 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. 826298.11 7n1m5 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 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 826288.11 7n1/05 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: 926239,1 1721 105 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: 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 826283.11 712 1105 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 Sublessoe'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 parties 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 826288.11 721/05 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. Agreements 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 926288.117/2 M5 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 826286.11 7121/05 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 Sublessof 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 826288.11 7/21105 35 all prior negotiations and understandings. Neither Sublessor nor Sublessee shall be bound by any covenants, agreements, statements, representations or warranties, oral or written, not contained in this Sublease. 34.10.2. No change or modification to this Sublease shall be valid unless the same is in writing and signed by the parties to this Sublease. 34.10.3. 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. 34.11. Severability. 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. 34.12. Time of Essence. Time is of the essence of each and every provision of this Sublease of which time is an element. 826288.11 712M5 36 IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this Sublease as of the day and year first above written. SUBLESSOR: UNI-MARTS, LLC By: Nam Title SUBLESSEE: SAIMA INTERNATIONAL, INC. P By: Name Aijaz A Shaikh Title: President 826288.11 M1105 37 Exhibit A Prime Lease - See Attached 826288.11 7121/05 A-1 Store #04249 Please be advised that the referenced lease has been assigned and the current landlord is: CHRISTOPHER SLIKE & LISA BROWNING 429 N. ENOLA RD ENOLA, PA 17025 All other terms and conditions of the lease remain the same except as noted. 61 ?-d4 9 L E A S E DONALD E. AND ROSE K. SLIKE, LANDLORD UNI-MARTS, INC., TENANT 'May 18 , 1989 6896 Carlisle Pike Mechanicsburg, PA 17055 (New Kingstown, PA) PARTIES 1. This Lease, made at Harrisburg, Pennsylvania this $ day of May , 1989, by and between DONALD E. SLIKE and ROSE M. 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 East Beaver Avenue, State College, Pennsylvania 16801-5690, hereinafter called "Tenant'. PREMISES 2. (a) Landlord hereby leassa to Tenant a new convenience store to be erected on Landlord's property located at Route 11 South and Locust Point Road, Silver Spring Township, Cumberland County, Pennsylvania, containing .95 acres, more or less, to be known and numbered as 6896 Carlisle Pike, Mechanicsburg, Pennsylvania 17055, as described in Exhibit "A" attached hereto and incorporated herein. which convenience store will consist of approximately 2430 square feet and will be in accordance with the plans and specifications identified in Exhibit 'B" attached hereto and incorporated herein. The real property and improvements hereinabove described shall hereafter be collectively referred to as the 'Premises". (b) Notwithstanding the foregoing, Landlord reserves unto itself, its tenants and/or subtenants, and their respective agents, employees and invitees, in common with Tenant, the free and uninterrupted right of from ingress and egress over the portions of the Premises identified in red in Exhibit 'A', which right of ingress and egress shall provide Landlord, its tenants and/or subtenants, and their respective agents, employees and invitees, with access to other lands of Landlord not herein leased to Tenant. To the extent necessary or desirable for its access to the retained portion of the property, Landlord may, at its expense, pave portions of the designated access routes not previously paved. Landlord shall bear all expenses associated with the improvement, maintenance or repair of the portion of said access ways not originally paved for use of Tenant, except to the extent damages are caused by the negligent or intentional act of Tenant, its agents, employees or invitees. The use of the foregoing access ways by Landlord, its tenants and/or subtenants, and their respective agents, employees and invitees, shall not be deemed a breach of Landlord's LEASE ADDENDUM Uni-Marts, Inc., having exercised this Five (5) Year option to extend its current Lease Agreement. enters into this Lease Addendum with Donald E. and Rose M. Slilu for the below referenced location(s). On the effective date. this Lease Addendum shall supercede any previous addendum or modifications, effecting the store(s) listed below: Location(s): Hit11 #21/ Uni-Marts 404111 Sunbury, Pa HMI #31 / Uni ,Mart 4 04112 Race St_ Williamsport Pa. HMI 439 / Uni-Man 0 04114 Northway Rd. Williamsport. Pa. ILMI 76 / Uni iMart # 04120 Port Royal, Pa. HMG #69 / Uni-Mart # 0412 7 Richfield- Pa. H!vII 026 ; Uni-Mart # 04224 New Cumberland. Pa. •1?vIIdF3?rtit?•fi423$Ivlecitmmiesbtn??a_._ HMI #34 / Uni-Mart # 04"9 Lemovne. Pa HMI 4 42 / Uni-Mart # 04235 Dnmcatmon Pa. HMI #64 / Uni-Mart 04248 St. Thomas, Pa. HMI #NK / Uni-Iv #0424491vew P, . HMI #75 / Uni-Matt # 04255 West Fairview. Pa. Current Lease Term Period: October 1, 1998 - September 30, 2003 Extended Term: The extended term will expire on September 30, 2008. Uni-Marts will have the option to extend the tetra for One (1) additional Five (5) year term and One (1) additional Four (4) year terra, expiring September 30, 2013 and 2017 respectfully. Uni-Marts shall notify Lessor, in writing 6 months prior to expiration date, for each location(s) individually. Use of Premise: The demised Premise will be used for the operation of a convenience store. ,Any fitture ages in use will require, Lessor written permission, such permission not to be unreasonably withheld. Effective !late: October 1. 2002 Rental Payment: The current rent schedule, based o>t4jMIhpercent M of merchandise sales will be eliminated and replaced with a fitted Rental Payment schedule. Total annual tent shall be made in equal monthly installments. The new fixed rental payment shall be established by sating a base year rent. The base year rent shall be the rat paid for the period October 1, 2001 through September 30, 2002. On the effective date, the base rent shall increase bys percent. (refer to Exhibit "A") The base year rent plus th naease shall constitute the first year of fined rental payments. Annual Increase: Beginning on October 1, 2003_ there shall be an annual increase 611FAIPbver the previous year's rent. Each and even, anniversary date the rent shall increas4Mver the previous year`s rant. Page #2 - Februarq 2002 Uni-dart v. Slike Lease Addendum Other Conditions: All other terns, conditions. and covenants of the original Lease Aereement, dated October i. 1988 shall remain in effect. - Witness: Ai` y Landlord: D E. Slike I date p CV x 4 oa Rose M. Slike? date Attest: Tenant Uni Inc.: Henry D. Sahal ian; CEO daze DONALD E. SLIKE P. O. Box 292 Camp Hill, PA 17001-0292 (717) 761-2085 Fax (717) 761-0330 TO: Rift Long Meow of ltad Bache Ull-Moft IM Dale: 09.10.04 Fa Number. (914) 234.9712 Number of Pees: 1(mo4dmg ootar dwt) Mew ahw4p the oddrom an themoetldly not abrA far (hditpbar SMW and Lies Browning r hooves: Chsfowlar sials Lim 429 N. Raols Road Book% PA 17025 !f Your r,%= pesttsm as exIt address 1me, pbe add "CAD shu rlfee Nf~. if not; do addteu Aowm above will be tasecisO. The" ... Man `fZ Y 7'z '-/ 7 47' z s-/ Y .-S s._ SUL-22-2004 02_03 PM DESHSs.cincrs 717 761 0330 P.01 DONALD E. SLID ROSE MARIE SLIKE P. O. Box 292 Camp Hill, PA 17001-0292 (717) 761-2095 Fax (717) 761-0330 TO: sill L M Date: 07-22-04 Fax Number. 1414.2344712 Number of Pqw. 1(taclu * cover shout) Hill: As Per your orhphoue ooaveteedon this with Mott, plane be adviud that the following stores were ,told to our sou mud dim 0w, Christopher Me and lima B+owrma6: #64 (#0424$) A lbam % PA #W(04251) Mt. Holly Springs, PA *75 (#04255) Want Pmirv . PA NK (004249) New KftWon, PA PM1 hn forwarded the aback Uni-Mma no Aa July. 2004, to um, and so please xnd the rear for Anipa old au ape t mosrda to CM*ow Nft sad Un Browdrj. They both Dave offices m. my bwWia& aed too you un mod the Omaha to dre sow dhows you h=ero for me - P. O. Box 292, Crap Hill, PA 17001-0292 - twill dflecao 1 otherwise. Thmuk YOU for your nsistunoe in this-eraser. Sbodd you have any queedom or require anything farther, do not heriute to oell. Y, MCC L E A S E UNI-MARTS, INC., TENANT October 7, 1988 MASTER COPY TABLE OF CONTENTS Lease Exhibits - Paraarauh 1. Parties Page No. 1 1 2. Premises 1 3. Term 2 4. Rent 7 5, Use of Premises 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 A Outline of Premises LEASE 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 UNI-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 property 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". UM 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 end 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 end 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 Term') beginning at the end 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 some 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 Premises 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) Thousand Dollars 451MINNIM. . 2 (ii) Payments of rant 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 Gross Sales for the immediately preceding October 1 thru September 30? ariod or AJMM? Thousand Dollars Provided, 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 Comencement 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) 40111fter (11) the product of the Applicable 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 _do • (2) For the second Lease, year - (3) For the third Lease Year and each Lease Year thereafter during the term of this Lease or any Extension Term -1% (g) The tens "Lease Year' shall mean the 12-month period beginning on October 1 of each year 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 tern 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 "rrnsa 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 any 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 transacted' 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 employed with respect to the other stores, but not le§s 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 tight to examine during regular business hours at the main accounting office 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. No 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 in`favor 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 5 (a) Tenant shall use and occupy the Premises for Purposes of operating a convenience stars- 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. The Tenant shall the is let continuously the uses and purposes for which throughout the year, and shall conduct and operate its t sleast business therein during each business day at hall from the hours of 7 a.m. to 11 p.m. The keep the leased property reasonably stocked with merchandise, and teasonably 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 PETROLE14 PRODU 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 approvals, 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 y 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. PTTrRAT nNS. 7. Tenant shall make .ho alterations, additions or improvements vements Band sadditionst witfor hout ithe alterations, im mpro prior written consent of Landlord, which shall not be unreasonably withheld. All such alterations, additions or improvements shall become a pt onfd the be Premises when made and shall remain upon surrendered with the Premises at the and of the term. Notwithstanding th ns oreg ing Tenant shall have the right, at its axP consider such alterations i willy note ideadversely necessary, affect the the Premises which structural integrity of the building. MECHANICS' ?FN?_ B. Tenant shall keep the Premises and the building tee 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 PRE?+ISES 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 that the premises were at such time in satisfactory condition, order and repair. (b) Landlord shall not be liable in dam&gas or otherwise for delay 'or failure in furnishing any services or facilities where such delay or failure is excusable pursuant to the provisions of Paragraph falureo hereof. In no event shall delay o regardless of cause, constitute an eviction of Tenant or termination of this Lease, unless caused by Landlord's negligence. ASSIGNMENT AND either voluntarily or by rMa,?re?FTTT?'?- 10. (a) Tenant shall not, operation of law, assign, transfer, mortgage or otherwise encumber this lease or sublet the Premises or permit any part thereof to be used or occupied osy anyone oawritteenconsentTof nLandlord inyeaerach without the e prior instance which consent shall not be unreasonably withheld. Landlord shall not be required to consent to a sublease unless Tenant agrees to pay to Landlord one-half (1/2) of the excess of any moneys received from subletting over the amount Tenant pays as rent hereunder on the date of the sublet. (b) Any transfer of this Lease from Tenant Han ee gein consolidation s to vote armajany ority of its ownership or power outstanding voting stock shall constitute an assignment for the purpose of this Lease and shall require the prior written consent of Landlord in each instance. Landlord shall not be required to consent unless the assignee agrees that the minimum annual rental provided for hereunder is based on the-highest Gross Sales in any preceding Lease Year. Additionally, if the transfer is to a major oil company, additional rent shall be payable under each Lease in an amount equal to one cent ($. 01) for gallon of gasoline sold. ACCESS TO puF.MISES 11. Landlord, its employees and agents upon twenty-four (24). hours advance notice shall have the right to enter the Premises for - the purpose of examining or inspecting the same, showing the same to prospective purchasers and mortgagees, and making such alterations, repairs, improvements or additions to the 9 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 'of 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, be cost of water, gas, electricity and sewerage, shall 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 provide 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 hill or other satisfactory evidence of payment. BUILDING VIC 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, heating, 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)(i) Landlord represents and garrants to Tenant that the roof, parking lot, heating and air conditioning system and mayor 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 HVAC 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 used 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 expended from any rent due or 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, o 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. (a) Landlord shall not be liable by reason of any injury to or interference with Tenant's business arising from the making of any 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, alLerations provided in,Paragraphn20 hereof and in Paragraph 15(c) above. COMMON AREAS OR property of CHARGE 16. If the Premises are part a f for t item nsp specified in Landlord, and Tenant Pays 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 ?FrTSES_ _ 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 axn TiASILI?Y _ I8. (a) Tenant shall indemnify, hold harmless and.defen Landlord 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 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 pPrsnnal injury, or damage to or loss or theft of property, which shall occur I. or about the Premises, except as the same say 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 nased 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 persons 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 shall maintain comprehensive public liability and property damage insurance in the amount of not less than Five Hundred Thousand ($500,000) Dollars for injury to nDollars for any one accident One Million ($1,000,000) 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 hall carry fire CASU 20. Landlord, at Tenant's expense, s ry 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 (100%) 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 50% of the Premises shall be damaged by fire or othax casualty, either party, upon thirty (the days' written notice to the other, right to terminate this Lease. If the Lease is not terminated, or the damage does not affect more than 500 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 VARRANTIES 21. (s) Landlord represents and warrants to Tenant, which representations shall survive execution, that as of the date of execution hereof: (i) Landlord is the sole owner 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 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"iu 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 Lawn or any similar applicable law or regulations. (v) Landlord shall comply strictly and in all respects with the requirements of airy 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. $9601 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 (b) Tenant represents and warrants to Landlord, which representations shall'survive execution: (i) Tenant shall comply strictly and of in all any respects with the reqi o 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 locopies of cations all orders, notices, permits, applications or other coumunica ion and reports in connection with any such spill 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 22 ' ' (a) Except to the extent they interfere with Tenant's . ?1RBANCE NONDIS 1 of the Premises under the Lease, Tenant accepts use this Lease subject and subordinate to any first r mortgages (including, without limitations, mortgage o and the notes or other obligations secured thereby onsolidations, c and all renewals, modifications, o replacements or extensions of any such mortgages or secured thereby) now in i ons the notes or other obligat existence or hereinafter made from time to time, the building or the real t l o e affecting the fee tit erty on which the building is located (or any part ro p p thereof) or Landlord's interest therein. Tenant also accepts this Lease subject and subordinate to all f fee title to the building instruments in the chain o which the building is located, or the real property on nd all renewals, modifications, including any a consolidations, replacements or extensions of such acknowledge and te , instruments. Tenant shall execu r to the holder of any such mortgage or to any li ve de of the parties to such instruments, at any time upon demand by such holder or by any such party, any other documents that may be releases, certificates or 18 required by such holder or by any such party, for the purpose of evidencing Inthe struments subordination to a? renewals, to such mortgages modifications, consolidations, replacements or extensions thereof. In 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 any, such events, Tenant shall at ptorn arty who, butdfor recognize s this Leas , would be hereunder the p ty entitled to possession of the Premises. (b) An 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 it rights under the mortgage or other security agreement for the bond or note or debt secured thereby; (ii) If the mortgagee 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. of sl be repair ma and available for the purpose restoration as provided in this Lease: and (v) The agreement shall be binding upon the Landlord's mortgagee and his respective heirs, executors, administrators, successors and "signs. Notwithstanding the foregoing, to the extent the Premises are on the data of this lease, subject to a mortgage which does not most the above requirements. Landlord shall only be required to use its best efforts to obtain an appropriate separate agreement of the mortgagee. GONDFNNATIOIQ 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 he date d of title vesting in such proceeding or purchase 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 v oaagainst ththe e condemnor. In the event a portion only Premises or s portion of the building containing same shall 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 say 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 r.1MILE CATES 24. Tanant shall, at any time an from timer to time, within twenty (20) days following written 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. prospective uch statement may be relied upon by any p 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 utgeodified, and that there are no uncured defaults in Landlord's performance hereunder. TAT 25. The occurrence of any of the following shall con- e statute 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, cabers 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 orcovenants this Lease to be observed or performed Y 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 eriod bT Tenant shall not be such thirty-day p 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 any assignment for the benefit of creditors; the adjudication that Tenant is bankrupt or insolvent; the filing by or against Tenant of a petition for reorganization or arrangement under tany he law relating to bankruptcy (unles s, in 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 Tenat's interest in this Lease (unless possession 21 restored to Tenant within thirty (30) days after such appointment); or the attachs»nt, execution or levy against, or other judicial seizure of, substantially all of Tenant's interest in thii'Lease (unless the same is discharged within thirty (3D) days after issuance thereof). LANDLORD np.Fk ? 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 d be deemed to be in default if it shall commence such performance within such thirty-day period thereafter diligently prosecutes the same to completion. ACCELERATED ?pT 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 Cross 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 Lase, may at =y 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 mW other right or remedy which Landlord an he baforesaid o rigsuch ht default termination), (other than 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 enant of the or termination raof this Lease) and take possession all personal property of every kind on the Premises, ad 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 or such account of Tenant, for such terms, upon conditions and at such rental as Landlord may deem proper. In the event of such reletting, (a) Landlord shall receive and collect rent the against therefrom and shall as first apply Landlord say 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 s as such rolett rd g may Landlord's name or in Tenant's name, y 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-antry by Landlord shall be deemed to be an acceptance of a surrender by Tenant of this Lease or of the Premises. (b) Tenant does hereby authorize and empower any attorney of any court of record within the United 23 states, 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 th Promises, all together with !ef and hereditament and appurtenances equipment installed therein, and the Tenant further authorizes the immediate issuance of a writ of possession upon a praecipe•therefor by the 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 causing said in entering said action or judgment or in thereon or writ to issue or in any proceeding concerning the ease 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. VAIVER 29. The failure or delay on the part of either party ses 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 construed 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 g7J0YMF.NT 30. If and so long as Tenant pays the seat reserved all of the hereunder and observes and performs Tenants part covenants, conditions and provisions 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 pav 31. In the event that either party shall be delayed or hindered in, or prevented from, the performance of awl work, service or other acts required under this Lease to be performed by the party and such delay or God, hindrance is due to strikes, lockouts, acts tion, governmental restrictions, enemy act, civil other causes of unavoidable fire or other casualty, or 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 of this aParagraph termination shall this Lease. The provisions 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 Landlord receives a bonafide written offer to purchase from a third party within the Refusal Period that Landlord is willing to accept, Landlord shall 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 aspire and shall continue during the Refusal Period. potvitbstandiog 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 descendant of Landlord, or to an entity in which Landlord or a spouse, lineal descendants and/or the spouse of a lineal descendant 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. ggyMJuING L&Z 34. This Lease shall be construed, governed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. SFrnuabJ= 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. 5APTIONS 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-Harts, Inc. 477 East Beaver Avenue State College, PA 16801-5690 Either party may change its address by notice so given to the other. .NRISDICTION 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 reepect 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 both parties hereto or their respective successor in interest. RRC(MM 44. This Lease shall not be recorded in any public office in Pennsylvania or elsewhere. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have duly executed this Lease and have initialed the Exhibits and any Riders hereto, in four counterparts the day and year first above written. WITNESS: 7 LANDLORD: DES ASSOCIATES Jd- By, Do ld E. Slike, Partner By,. I6u I" Rose H. Slike, Partner TENANT: ATTEST: UNI-HARTS, IN . By: Secretary ce) President (SZAL) 28 COMMONWEALTH OF PENNSYLVANIA . SS: COUNTY OF DAUPHIN 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: (SEAL) NOTARIAL SEAL Public YVONNE R FREET, County Harrisburg, 011 n ou MV commission EsPMes JuM 111, i9so 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. Not y Public My Commission Expires: (SEAL) [,ENOTAFRAL SEAL FREET, Notary Public rg, Dauphin County on Raoir? ssWa 1g, l 9 NOV-03-2004 03:10 PM DESAss- iates 717 761 0330 P.13 NKi 1u Gh Buyer to grant a Right of First Refusal for both tracts to: Donald E. Slike, Rose Marie Slike, Christopher L. Slike and/or Lisa Ann Browning TRACT No. 11 ALL THAT CEATAIM tract of land situate in the Township of Silver Spring, County of Cumberland and State of Pennsylvania, ticularly bounded and described as follows, to wits more par BEGINNING at an iron pin in the southerly limit of the A If) right-of-way line of O.S. Route 11 westbound MR. 34 westbound); thence by lands now or formerly of Farmers Trust ' _ Company, south nineteen degrees fifty-eight minutes East (S 19 56' E), 317.57 feet to an iron pin in the line of lands now or 30b formerly of Thomas C. Sunday and Sherryl A. Sunday; thence by lands of the some, South seventy-two degrees twenty-eight minutes fifteen seconds West (5 72' 201 150 W), 365.26 feet to s pin in the line of lands now or formerly of Richard W. Snyder; thence by lands of tame and lands now or formerly of tt.B. Church of Mew Wingstown and lands now or formerly of E . Marian Penicle, Worth twenty-three degrees zero minutes West (M 23' 00' W), 391.52 feet to an iron pin in the southerly limit of the right-of-way line of U.S. saute 11 westbound (L.S. 34 wastbound); thence by same in an easterly direction by a curve i to the right having a radius of 2,754.79 feet, an arc distance of 338.08 feet to a point in said right-ef-way; thence by same, North eighty-six degrees thirty-nine minutes twenty seconds Last (M 66' 39. 20" E), 58.25'feat to the place of RLOMMING. BEING Lot NO. 2 of the hereinafter mentioned plan of lots. The aforementioned description is made in accordance with the survey made by John C. Brilbart, Registered Surveyor, dated ' said survey is June S, 1993, and revived August 24, 1923, recorded Cumberland County Plan Book 44, Page 111. TOGETHER with a 15-foot wide right-of-way located along the eastern boundary of other land of Thomas C. Sunday and Sherryl A. Sunday, husband and wife (of which the tract herein conveyed was once a part). for public sewer, water and Was lines. The construction for and maintenaoae of such lines shall be the responsibility of the Grantee herein. TRACT 110. 21 FOce.--a ALL THAT CERTASM lot of ground situate in the Township of Q6('a• Silver spring, County of Cumberland and State of Pennsylvania, bounded and described as followse OW432 PO 95 Seller: Christopher L. Slike and Lisa Ann Browning N0V-03-2004 03:11 PM DESAasociatea 717 761 0330 P.14 8210IN j= at a point in the SONt" ft pPublliic "&a e?bnsn r northward from the hate Silhwa . a rcosner and lands or fo?rmeerly of Lloyd Bender and ice hnortheast his inwit*, said tersection point A 141feot l wide feet alnorthward ky with them the aforementioned Public Road; thence along lands now or formerly of said Lloyd A. sender and Alice N. Under, his wife, North aixty-seven and one-half degreee East (N 67 1/2' E), 166 feet to line of la_ndlands s now n or formerly of Charles N. Sunday; thence along line North twenty two and one-quarter degrees aWest (Nl22 1/4* W) • 562.2 feet to a post; thanes by line at right angles to the to^ an iron pin one-quarter Public Road a 671/a' nNdl, 14 South feet sixty-seven in the degrees West (s center line of said Public Road, South twenty-two and one-Quarter degrees East to 22 1/4' E), 500.3 feet to a point, the place of BEGINNING. EXCEPTING, nevertheless, from Tract No. 2 above described, the public and private rights in the roadbed of North Locust Point Road and the public and private rights in the roadbed of U.S. Route 11 west, as granted by instrument dated March 14, 1967, and recorded May 1, 1967 in Cumberland County Page 366. further EXCEPTING the obo" land of section lying North of thecenterrlineeof the wastboud ? 2 all t land lying D.S. Route 11, which was conveyed by David 0. Johnson and w1fa, to Robert E. Deihl and wife, by deed dated October 14, 1995, and recorded November 14, 1945, in Cumberland County Dead Hook P, Volume 31, Pala 234. BEING the same premises which Kenneth P. Caffrey, Jr. and Vicky N. Caffrey, his wife, by deed dated November 10, 1906, recorded November 13, 1946, in Cumberland County Deed Book 32, Volume E 665, granted and conveyed unto GBBG Associot n' a Pennsylvania general partnership, Grantor herein. jjj it 1 Seller. Christopher L. Slike and Lis& Ann Browning a m M M 9 ?o r- r- N 4 tl 0 r, A a N w F E a N ro m a m m N I M 0 i 0 z i 1 2?84j9 ?^ 7 -.? `. ?A J D o' & ?,o S Pte{ ?'?? 0 KEG C *1° 3 at . ?F `?lr s, u m? g•-o f ?4 VIP ? +/, ?? 1 ? iSl V lV'.r Ni PtAV of pftopt:2TUl 1FbQ. C1R , '•t S«?E¢ gpQ,>uC?i TowuSN,(? • DR aAFFfnls?£2oER ASCO[IS=fS CIL?,'S?{.ANL) Cpt111T•(, PEKas?(WAUt? SC4r`E ? ;" • {ono' Sf (KJ E SIR E Q {j ,{904• EuCa?ufERS? ?ya2vEyolti Comp NI?l. QEw1aSyLVAr.itA 3sz•uw Exhibit B Third Party Leases 826288.11 721/05 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.] 826288.11 7/21,105 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 AGREEMENT 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. 926288 11 9n1o5 D-1 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. 926298 11 7R 1 /OS D-2 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. 5. 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 926288,11 7/21105 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 1. 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 926288 11 72 M S D-4 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; B. all requirements for the commencement and validity of the Lease have been satisfied; 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. 826286.1 1 7/2 110 5 D-5 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 State College, PA 16801-5690 Telephone: 814-234-6000 Telecopy: 814-234-3277 If to Tenant: Telephone: Telecopy: 826298 11 721 M5 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 1P_1105 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 tittle thereto by or through Lender, or its successors or assigns. 20. No OtherAgreenwn& 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: Its: LENDER: 826289,11 712 iron D-8 926283 1 1 7121/05 By. Its. [INSERT ACKNOWLEDGEMENTS] D-9 s Exhibit B t ? Y FUEL SUPPLY AGREEMENT THIS AGREEMENT, made this ,3_ day of A , 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 6896 CARLISLE PIKE, NEW KINGSTON, PA 17055 (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 607772.9 7/21/05 of the Marketing Premises are repaired or replaced. 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 rimes 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 11-22-02 2 607772 9 7121/05 the Termination Notice by the required date, this Agreement shall automatically renew for a 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 11-2z-oz 3 607772.9 7/21/05 Marketing Premises and shall be promptly received by Buyer. Payment terms for each delivery 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 1-22-02 4 607772 9 7/21/05 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 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 5 607 772 9 7121105 , S 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. Brand Name. The Seller, at the sole discretion of UNI-MART at any 6. Specifications, 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-ii-0i 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 (0 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 19 hours per day, from 5:00 am - 12:00 pm eastern time, 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 1I-22-02 7 607772.9 7/21105 Buyer's accounting records, to determine Buyer's compliance with this Agreement, and 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 11-22-02 $ 607772.9 7/21105 Agreement between Seller and Buyer). Buyer shall be responsible to ensure that the storage 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. 9. vapor recovery equipment. h. posting and certifying of required octane and motor fuel requirements. i. the Clean Air Act. 14. Claims• Bar Date, Damages 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 I1-22-02 9 607772.9 7121105 Seller with reasonable opportunity to inspect the motor fuel products and take test samples. Any 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 11.22-oz 10 607772.9 7@ 1 /05 any such curtailment or allocation by Seller. 16. Indemnity. 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. Default Termination; Non-Renewal; Notice; Right 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 11-22-0z 11 607772.9 N21/OS grounds upon which it may be terminated or non-renewed by the Seller. Seller's right to 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 11-22-02 607772.9 7/21 /05 12 termination or non-renewal shall take effect. (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 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 11-22-02 13 607772.9 7121 /05 value of UNI-MART trademarks. Except as otherwise expressly provided herein, at all times, 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 Buyer. 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 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 anv 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 11-22-02 14 607772.9 7!21105 the parties, and any breach of any term or condition by either party shall be conclusively deemed to be material and adverse. 26. Entire A.Qreement. 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. 11-22-02 15 607772 9 7121/05 UNI-MARTS, LLC BY: ar /MaMnager Sahaki SAIMA INTERNATIONAL, INCA BY: Aijaz A. haikh President WITNESS: BY: WITNESS: BY: A-V...4 s -? 4. 11-22-02 16 6077772.9 7/11105 UNI-MARTS, LLC COMMODITY SCHEDULE DATED 3 2005 BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC. PRODUCTS: MOTOR FUELS DELIVERY POINT: 6896 CARLISLE PIKE, NEW KINGSTON, PA 17055 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 tJ... 2005. 1. uanti . 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 135,000 gallons per year and a maximum of 160,000 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. 1 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 7/21/05 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 7/21 MS 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: M er SAIMA INTERNATIONAL, INC. By: Its: President 607724.6 7121!05 UNI-MARTS, LLC COMMODITY SCHEDULE DATED ? 3 , 2005 . Li BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC. PRODUCTS: KEROSENE DELIVERY POINT: 6896 CARLISLE PIKE, NEW KINGSTON, PA 17055 This schedule is attached to and made part of a Fuel Supply Agreement between Buyer and Uni-Marts, LLC (the "Seller") dated u 5 2005. 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 W21/05 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. UNI-MARTS, LLC By: Its: a er SAIMA INTERNATIONAL, JNC. By: Its: President 6078892 MI/05 1, . Site No.: 04249 Location: 6896 Carlisle Pike New Kingston PA 17055 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. 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. 610810.2 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 WITNESS WHEREOF, the parties have agreed to the terms of this Collateral Deposit Agreement on this 3 day of 2005. By: Its: SAIMA INTERNATIONAL, INC. By: v Its: President 610870.2 7/21/05 UNI-MARTS, LLC Exhibit C l Site No.: 04249 Location: 6896 Carlisle Pike New Kingston PA 17055 County. Cumberland TRADEMARK LICENSE AGREEMENT This Trademark License Agreement ("Agreement") is made and entered into as of the 3 day of , 2005, by and between SAIMA INTERNATIONAL, INC., a Pennsylvania corpor n 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 17/21 /O5 • 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 a 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. 610315.1 7121105 -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, 610315.1 7121/05 -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 "4" 610315 17/21/05 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: i. result in a violation of Purchaser's organizational documents (where appropriate), ii. contravene or conflict with, or constitute a violation of, any judgment, injunction, order or decree binding upon or applicable to Purchaser, iii. require any consent, approval or other action by any third party, or 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 W21/05 -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 610315.1 7121/05 -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 -7- 610315.17121/05 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, 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 7121105 -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-MARTW LLC By: Its: SAIMA INTERNATIONAL, INIZ. V? By: Its: President 610315.17/1-1/05 -9- Exhibit D Site No.: 04234 Location: 1962 Spring Road Carlisle PA 17013 County: Cumberland LEASE THIS LEASE (this "Lease") is made as of &UMA A , 2005 (the "Effective Date"), by and between UNI-MARTS, LLC, a Pennsylvania t ited liability company ("Lessor"), whose address is 477 East Beaver Avenue, State College, Pennsylvania 16801-5690, and SAIMA INTERNATIONAL, INC., a Pennsylvania corporation ("Lessee"), whose address is 2203 Glen Allen Avenue, Apt T-2, Silver Spring, MD 20906. WUNESSETH: THAT, in consideration of the mutual covenants and agreements herein contained, Lessor and Lessee hereby covenant and agree as follows: 1. Certain Defined Terms. The following terms shall have the following meanings for all purposes of this Lease: "Action" has the meaning set forth in Section 23.A(iv). "Additional Rental" has the meaning set forth in Section 6.B. "Affiliate" or "Affiliates" means any Person which directly or indirectly controls, is under common control with or is controlled by any other Person. For purposes of this definition, "controls", "under common control with", and "controlled by" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise. "Applicable Regulations" has the meaning set forth in Section 16.A. "Base Annual Rental" means (i) during the first Lease Year, Sixty-Nine Thousand, Nine Hundred and Three Dollars ($69,903.00) per year, and (ii) commencing with the second Lease Year, and each and for every Lease Year thereafter (including the Lessor Extension Period if applicable), an amount equal to the lesser of (a) the Base Annual Rental for the immediately preceding Lease Year multiplied by one hundred two percent (102%) or (b) the Base Annual Rental for the immediately preceding Lease Year multiplied by the CPI Adjustment, but in no event shall Base Annual Rental decline as a result of this calculation. Rental. "Base Monthly Rental" means an amount equal to 1/12 of the applicable Base Annual F0_ 1 923545.111/20105 "Business Day" means a day on which Lessor is open for business other than Saturday, Sunday or a legal holiday, ending at 5:00 p.m. Philadelphia, Pennsylvania time. "Code" means the United States Bankruptcy Code, 1 I U.S.C. Sec. 101 et seq., as amended. "Counsel" means legal counsel to Lessee, licensed in the state in which (i) the Premises are located; (ii) Lessee is formed; and (iii) Lessee maintains its principal place of business. "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 Lessor 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 reasonably selected by the Lessor 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. less. "Default Rate" means 18% per annum or the highest rate permitted by law, whichever is "Environmental Indemnity Agreement" means that certain Environmental Indemnity and Service Agreement dated the date hereof by and between Lessor and Lessee executed in connection with this Lease. "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 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, 827545.11 MOM -2- 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 16.E. "Event of Default" has the meaning set forth in Section 23. "General Electric" means (a) the holder of the GE Mortgage, being either (i) GE Capital Franchise Finance Corporation ("GECFF") or (ii) LaSalle Bank National Association, as Indenture Trustee pursuant to that certain Indenture dated as of April 1, 1999 ("LaSalle") (for whom GECFF is servicer), and (b) to the extent that the GE Mortgage is held by LaSalle, GECFF as servicer of the GE Mortgage. "GE Mortgage" means that certain Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of June 30, 1998 executed by Lessor and held by General Electric as of the Effective Date. "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. 827545.11 7/20105 -3- "Ground Lease" means all ground leases or underlying leases executed by Lessor affecting the Premises including, without limitation, any ground lease that may be executed in connection with a sale/leaseback transaction entered into by Lessor with respect to the Premises. "Ground Lessor" means the lessor under a Ground Lease. "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 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 Lessor or Mortgagee, as applicable. "Lease Term" shall have the meaning described in Section 5. "Lease Year" shall have the meaning described in Section 5. "Lessor's Broker" means N/A "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). "Material Adverse Effect" means a material adverse effect on (i) the Premises, including, without limitation, the operation of the Premises as a Uni-Mart Facility and/or the value of the Premises or (ii) Lessee's ability to perform its obligations under this Lease. "Mortgage" means any mortgage or deed of trust and/or assignment of rents and leases, and/or security agreement and fixture filing executed by Lessor for the benefit of a Mortgagee 827 54 5 11 720105 -4- with respect to the Premises, as such instruments may be amended, restated and/or supplemented from time to time, and includes, without limitation, the GE Mortgage. "Mortgagee" means General Electric, its successors and assigns and any other 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 Lease. "Partial Taking" has the meaning set forth in Section 21.D. "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 Lease and legally described in Exhibit A attached hereto, all rights, privileges and appurtenances associated therewith, and all buildings, fixtures and other improvements (including, without limitation, gas pumps, canopies and USTs) now or hereafter located on such real estate (whether or not affixed to such real estate). "Regulated Substances" means "petroleum" and "petroleum-based substances" or any similar terms described or defined in any of the Environmental Laws and any applicable federal, state, county or local laws applicable to or regulating USTs. "Release" means any presence, release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials, Regulated Substances or USTs. "Remediation" means any response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Material, Regulated Substances or USTs, any actions to prevent, cure or mitigate any Release, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or any evaluation relating to any Hazardous Materials, Regulated Substances or USTs. "State" means the state in which the Premises are located. "Taking" has the meaning set forth in Section 21.A. "Temporary Taking" has the meaning set forth in Section 21.C. "Third Party Leases" means the leases for certain portions of the Premises set forth on Exhibit B, attached hereto, and any replacement or renewal leases for the space leased pursuant to the leases listed on Exhibit B. 823545.11 moms -5- "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. "Total Taking" has the meaning set forth in Section 21.B. "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. "USTs" 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 of Premises In consideration of the rentals and other sums to be paid by Lessee and of the other terms, covenants and conditions on Lessee's part to be kept and performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires, the Premises. 3. Assignment of Third Party Leases. Lessor hereby assigns, transfers and sets over to Lessee for the Term all right, title and interest of Lessor in and to the Third Party Leases, and Lessee assumes and agrees to perform all obligations of Lessor under such Third Party Leases arising and accruing after the Effective Date and for the balance of the Term. 4. Characterization of Lease. A. Lessor and Lessee intend that: (i) this Lease is a "true lease" and not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Lease are those of a true lease; and (ii) the business relationship created by this Lease and any related documents is solely that of a long-term commercial lease between landlord and tenant and has been entered into by both parties in reliance upon the economic and legal bargains contained herein. B. Lessor and Lessee acknowledge and agree that the Lease Term, including any term extensions provided for in this Lease, is less than the remaining economic life of the Premises. C. Lessee waives any claim or defense based upon the characterization of this Lease as anything other than a true lease. Lessee covenants and agrees that it will not assert that this Lease is anything but a true lease. Lessee stipulates and agrees not to challenge the validity, enforceability or characterization of the lease of the Premises as a true lease and further 823545.11 720105 -6- stipulates and agrees that nothing contained in this Lease creates or is intended to create a joint venture, partnership (either de jure or de facto), equitable mortgage, trust, financing device or arrangement, security interest or the like. Lessee shall support the intent of the parties that the lease of the Premises pursuant to this Lease is a true lease and does not create a joint venture, partnership (either de jure or de facto), equitable mortgage, trust, financing device or arrangement, security interest or the like, if, and to the extent that, any challenge occurs. D. Lessee waives any claim or defense based upon the characterization of this Lease as anything other than a lease of the Premises. E. Lessee represents and warrants to Lessor that (i) the Base Annual Rental is the fair market value for the use of the Premises and was agreed to by Lessor and Lessee on that basis, and (ii) the execution, delivery and performance by Lessee of this Lease does not constitute a transfer of all or any part of the Premises. F. The expressions of intent, the waivers, the representations and warranties, the covenants, the agreements and the stipulations set forth in this Section are a material inducement to Lessor entering into this Lease. 5. Lease Term and Lease Year. A. The Lease Term for the Premises commences as of the Effective Date and shall expire on (a) the day immediately preceding the twentieth (20ffi ) anniversary of the Effective Date, if the Effective Date is the first day of a month or (b) the last day of the calendar month in which falls the 20`h anniversary of the Effective Date, if the Effective Date is a day other than the first day of a month, unless terminated sooner as provided in this Lease. The time period during which this Lease shall actually be in effect is referred to herein as the "Term" or "Lease Term." Lessor shall have the option (the "Lessor Extension Option"), on one occasion, any time during the first five (5) Lease Years, to extend the Lease Term by any period desired by Lessor up to but not exceeding five (5) years (the "Lessor Extension Period"). In the event that Lessor desires to exercise the Lessor Extension Option, Lessor shall give Lessee written notice thereof prior to the expiration of the fifth (5 h) Lease Year, specifying the length of the Lessor Extension Period. B. The First "Lease 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 Lease 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 Lease Year. 6. Rental and Other Payments. A. If the Effective Date is a date other than the first day of the month, Lessee shall pay Lessor on the Effective Date the Base Monthly Rental prorated on the basis of the ratio that the number of days from the Effective Date through the last day of the month containing the Effective Date bears to the number of days in such month. Therefore, on or before the first day of !2)545.11 MOM -7- each calendar month during the Lease Term, Lessee shall pay Lessor in advance the Base Monthly Rental. B. All sums of money required to be paid by Lessee under this Lease which are not specifically referred to as rent ("Additional Rental") shall be considered rent although not specifically designated as such. Lessor shall have the same remedies for nonpayment of Additional Rental as those provided herein for the nonpayment of Base Annual Rental. 7. Representations and Warranties of Lessor. The representations and warranties of Lessor contained in this Section are being made to induce Lessee to enter into this Lease and Lessee has relied and will continue to rely upon such representations and warranties. Lessor represents and warrants to Lessee as follows: A. Organization, Authority and Status of Lessor. (i) Lessor has been duly organized and is validly existing and in good standing under the laws of the State of Pennsylvania. All necessary corporate action has been taken to authorize the execution, delivery and performance by Lessor of this Lease and the other documents, instruments and agreements provided for herein. (ii) The person who has executed this Lease on behalf of Lessor is duly authorized so to do. B. Enforceability. This Lease constitutes the legal, valid and binding obligation of Lessor, enforceable against Lessor in accordance with its terms. C. Litigation. There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving Lessor before any arbitrator or Governmental Authority which might reasonably result in any material adverse change in the contemplated business, condition, worth or operations of Lessor, or the Premises. D. Absence of Breaches or Defaults. The authorization, execution, delivery and performance of this Lease and the documents, instruments and agreements provided for herein will not result in any breach of or default under any other document, instrument or agreement to which Lessor is a party or by which Lessor or any of the property of Lessor is subject or bound. Without limitation, Lessor has obtained all necessary consents from General Electric to enter into and perform this Lease. 8. Representations and Warranties of Lessee. The representations and warranties of Lessee contained in this Section are being made to induce Lessor to enter into this Lease and Lessor has relied, and will continue to rely, upon such representations and warranties. Lessee represents and warrants to Lessor as follows: A. Organization, Authority and Status of Lessee. (i) Lessee has been duly organized or formed, is validly existing and in good standing under the laws of the State of Pennsylvania and is 823545.11 720A5 .g. qualified to do business in the State. All necessary corporate action has been taken to authorize the execution, delivery and performance by Lessee of this Lease and of the other documents, instruments and agreements provided for herein. Lessee is not a "foreign corporation", "foreign partnership", "foreign trust" or "foreign estate", as those terms are defined in the Internal Revenue Code and the regulations promulgated thereunder. Lessee's United States tax identification number is correctly set forth on the signature page of this Lease. (ii) Lessee's Tax Identification Number is 71-0965149 (iii) The persons who have executed this Lease on behalf of Lessee are duly authorized to do so. B. Enforceability. This Lease constitutes the legal, valid and binding obligation of Lessee, enforceable against Lessee in accordance with its terms. C. Litigation. There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving Lessee before any arbitrator or Governmental Authority which might reasonably result in any material adverse change in the contemplated business, condition, worth or operations of Lessee, or the Premises. D. Absence of Breaches or Defaults. The authorization, execution, delivery and performance of this Lease and the documents, instruments and agreements provided for herein will not result in any breach of or default under any other document, instrument or agreement to which Lessee is a party or by which Lessee or any of the property of Lessee is subject or bound. E. Licenses and Permits. Lessee has obtained all required licenses and permits, both governmental and private, to use and operate the Premises as a Uni-Mart Facility, except to the extent the failure to have such licenses and permits will not have a Material Adverse Effect. F. Financial Condition; Information Provided to Lessor. The financial statements, all financial data and all other documents and information heretofore delivered to Lessor by or with respect to Lessee and/or the Premises in connection with this Lease and/or relating to Lessee and/or the Premises are true, correct and complete in all material respects, and there have been no amendments to such financial statements, financial data and other documents and information since the date such financial statements, financial data, documents and other information were prepared or delivered to Lessor, and no material adverse change has occurred to any such financial statements, financial data, documents and other information not disclosed in writing to Lessor. 9. Rentals To Be Net to Lessor. The Base Annual Rental payable hereunder shall be net to Lessor, so that this Lease shall yield to Lessor the rentals specified during the Lease Term and that all costs, expenses and obligations of every kind and nature whatsoever relating to the Premises shall be performed and paid by Lessee. 9"515 It MOM -9- 10. Taxes and Assessments. Lessee shall pay, prior to the earlier of delinquency or the accrual of interest on the unpaid balance, all taxes and assessments of every type or nature assessed against or imposed upon the Premises during the Lease Term which affect in any manner the net return realized by Lessor under this Lease, including, without limitation, the following: A. All taxes and assessments upon the Premises or any part thereof and upon any personal property, trade fixtures and improvements located on the Premises, whether belonging to Lessor or Lessee, or any tax or charge levied in lieu of such taxes and assessments; B. All taxes, charges, license fees and or similar fees imposed by reason of the use of the Premises by Lessee; and C. All excise, transaction, privilege, license, sales, use and other taxes upon the rental or other payments hereunder, the leasehold estate of either party or the activities of either party pursuant to this Lease. D. All taxing authorities shall be instructed to send all tax and assessment invoices to Lessor. After recording the information on such invoices, Lessor shall forward such invoices to Lessee for payment. Within 30 days after each tax and assessment payment is required by this Section to be paid, Lessee shall provide Lessor with evidence satisfactory to Lessor that such payment was made in a timely fashion. Lessee may, at its own expense, contest or cause to be contested (in the case of any item involving more than $10,000.00, after prior written notice to Lessor), by appropriate legal proceedings conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any item specified in the foregoing Subsection A or lien therefor, provided that (i) such proceeding shall suspend the collection thereof from the Premises or any interest therein, (ii) neither the Premises nor any interest therein would be in any danger of being sold, forfeited or lost by reason of such proceedings, (iii) no Event of Default has occurred, (iv) Lessee shall have deposited with Lessor adequate reserves for the payment of the taxes, together with all interest and penalties thereon, unless paid in full under protest and (v) Lessee shall have furnished the security as may be required in the proceeding or as may be required by Lessor to insure payment of any contested taxes. 11. Utilities. Lessee shall contract, in its own name, for and pay when due all charges for the connection and use of water, gas, electricity, telephone, garbage collection, sewer use and other utility services supplied to the Premises during the Lease Term. Under no circumstances shall Lessor be responsible for any interruption of any utility service. 12. Insurance. Throughout the Lease Term, Lessee shall maintain with respect to the Premises, at its sole expense, the following types and amounts of insurance (which may be included under a blanket insurance policy if all the other terms hereof are satisfied), in addition to such other insurance as Lessor may reasonably require from time to time: A. 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 823545.11 720M -10- 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 Lessor 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, Lessee may elect to self insure such items, provided that Lessee shall at all times provide the remaining coverages set forth in this Section 12 with third party insurers complying with the provisions of this Section 12. B. Comprehensive general liability and property damage insurance, including a products liability clause, covering Lessor, Mortgagee and Lessee against bodily injury liability, property damage liability and automobile bodily injury and property damage 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 Lessor, Mortgagee and Lessee 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 Lessee'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 Lessee, Lessor 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 Lessor may reasonably require from time to time, and shall be of form and substance satisfactory to Lessor. C. 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. D. 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 Lessor may from time to time require and such other insurance as may be necessary to comply with applicable laws. E. Such other insurance with respect to the Premises and in such amounts as Lessor 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. All insurance policies shall: (i) Be in form reasonably acceptable to Lessor; (ii) Be issued by a company or companies authorized to engage in the business of issuing such policies in the State and reasonably acceptable to Lessor; 827545.11 MOM -11- (iii) Provide for a waiver of subrogation by the insurer as to claims against Lessor, its employees and agents and provide that such insurance cannot be unreasonably cancelled, invalidated or suspended on account of the conduct of Lessee, its officers, directors, employees or agents; (iv) Provide that any "no other insurance" clause in the insurance policy shall exclude any policies of insurance maintained by Lessor and that the insurance policy shall not be brought into contribution with insurance maintained by Lessor; (v) Contain a standard without contribution mortgage clause endorsement in favor of any lender designated by Lessor or Mortgagee; (vi) Provide that the policy of insurance shall not be terminated, cancelled or substantially modified without at least thirty (30) days' prior written notice to Lessor, Mortgagee and to any lender covered by any standard mortgage clause endorsement; (vii) Provide that the insurer shall not have the option to restore the applicable Premises if Lessor elects to terminate this Lease in accordance with the terms hereof; (viii) Be issued by insurance companies licensed to do business in the State and which are rated ANI or better by Best's Insurance Guide or are otherwise approved by Lessor; and (ix) Provide that the insurer shall not deny a claim because of the negligence of Lessee, anyone acting for Lessee 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 Lessee for its acts or omissions as provided in this Lease. All insurance policies (with the exception of worker's compensation insurance to the extent not available under statutory law) shall designate Lessor and Mortgagee as additional insureds as their interests may appear and shall be payable as set forth in Section 21 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 Lessor or Mortgagee, shall serve as excess coverage. Lessee shall procure policies for all insurance for periods of not less than one year and shall provide to Lessor and Mortgagee certificates of insurance or, upon Lessor's request, duplicate originals of insurance policies evidencing that insurance satisfying the requirements of this Lease is in effect at all times. If requested by Lessor (but not more often than once in any two year period), Lessee shall have the full insurable replacement cost of the improvements determined by an MAI licensed appraiser satisfactory to Lessor, and Lessee shall deliver such determination to Lessor. Alternatively, Lessor may require that inflation guard coverage be provided. 127545.11 712005 -12- 13. Tax and Insurance Impound. Upon the occurrence of an Event of Default, Lessor may require Lessee to pay to Lessor sums which will provide an impound account (which shall not be deemed a trust fund) for paying up to the next one year of taxes, assessments and/or insurance premiums for the Premises. Upon such requirement, Lessor will estimate the amounts needed for such purposes and will notify Lessee to pay the same to Lessor in equal monthly installments, as nearly as practicable, in addition to all other sums due under this Lease. Should additional funds be required at any time, Lessee shall pay the same to Lessor on demand. Lessee shall advise Lessor of all taxes and insurance bills which are due and shall cooperate fully with Lessor in assuring that the same are paid. Lessor may deposit all impounded funds in accounts insured by any federal or state agency and may commingle such funds with other funds and accounts of Lessor. Interest or other gains from such funds, if any, shall be the sole property of Lessor. In the event of any default by Lessee, Lessor may apply all impounded funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an annual accounting showing all credits and debits to and from such impounded funds received from Lessee. 14. Payment of Rental and Other Sums. All rental and other sums which Lessee is required to pay hereunder shall be the unconditional obligation of Lessee and shall be payable in full when due without any setoff, abatement, deferment, deduction or counterclaim whatsoever. Upon execution of this Lease, Lessee shall establish arrangements whereby payments of the Base Monthly Rental, any Additional Rental and impound payments, if any, are transferred by wire or other means directly from Lessee's bank account to such account as Lessor may designate; provided, however, upon notice from Mortgagee to Lessee and Lessor delivered in the manner set forth in Section 27, Lessee shall deliver all payments of Base Monthly Rental as specified in such notice from Mortgagee. Any delinquent payment (that is, any payment not made within five calendar days after the date when due) shall, in addition to any other remedy of Lessor, incur a late charge of 10% (which late charge is intended to compensate Lessor for the cost of handling and processing such delinquent payment and should not be considered interest) and bear interest at the Default Rate, such interest to be computed from and including the date such payment was due through and including the date of the payment; provided, however, in no event shall Lessee be obligated to pay a sum of late charge and interest higher than the maximum legal rate then in effect. 15. Use. The Premises shall be used solely for the operation of a Uni-Mart Facility and for no other purpose. Except as set forth below, and except during periods when the Premises is untenantable by reason of fire or other casualty or condemnation (provided, however, during all such periods while the Premises is untenantable, Lessee shall strictly comply with the terms and conditions of this Lease), Lessee shall at all times during the Lease Term occupy the Premises and shall diligently operate its business on the Premises. Lessee 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 Lease Term. If Lessee does discontinue operation at the Premises as permitted by this Section, Lessee shall (i) give written notice to Lessor and Mortgagee sixty (60) days prior to ceasing operation (ii) give written notice to Lessor and Mortgagee within 10 days after Lessee 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 Lessee's business operations or other substituted use approved by Lessor as contemplated below. Notwithstanding anything herein to the contrary, 827545.11 MOM -13- Lessee shall pay the Base Monthly Rental on the first day of each month during any period in which Lessee discontinues operation. Lessee shall not, by itself or through any assignment, sublease or other type of transfer, convert the Premises to an alternative use during the Lease Term without Lessor's consent, which consent shall not be unreasonably withheld. Lessor may consider any or all of the following in determining whether to grant its consent, without being deemed to be unreasonable: (i) whether the rental paid to Lessor would be equal to or greater than the anticipated rental assuming continued existing use, (ii) whether the proposed rental to be paid to Lessor is reasonable considering the converted use of the Premises and the customary rental prevailing in the community for such use, (iii) whether the converted use will be consistent with the highest and best use of the Premises, and (iv) whether the converted use will increase Lessor's risks or decrease the value of the Premises. 16. Compliance With Laws, Restrictions, Covenants and Encumbrances. A. Lessee's use and occupation of the Premises, and the condition thereof, shall, at Lessee'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 each case, as amended, and any judicial or administrative interpretation thereof, including any judicial order, consent, decree or judgment applicable to Lessee (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. B. Lessee 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 Lessee shall pay for such increase. C. Without limiting the generality of the other provisions of this Section, Lessee 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. Lessee 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 Lessee's failure to comply with its obligations under this Section. D. Lessee represents and warrants to Lessor as follows: (i) The Lessee is not in violation of or subject to any existing, pending or threatened investigation or inquiry by any Governmental Authority or to any remedial obligations under any Environmental Laws. If any such investigation or inquiry is subsequently initiated respecting Lessee or the Premises, Lessee will promptly notify Lessor. $25545.11 720/05 -14- (ii) Lessee has not obtained and is not required to obtain any permits, licenses or similar authorizations to construct, occupy, operate or use any buildings, improvements, fixtures forming a part of the Premises by reason of any Environmental Laws. E. Lessee covenants to Lessor during the Lease Term that: (i) all uses and operations on or of the Premises, whether by Lessee 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) Lessee 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 Lessee or any other person or entity (the "Environmental Liens"); (v) Lessee 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) Lessee 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 Lessor (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 Lessor the reports and other results thereof, and Lessor 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, Lessee shall, at its sole cost and expense, comply with all reasonable written requests of Lessor 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) Lessee 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 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) Lessee shall immediately notify Lessor 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 Lessee 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. F. Lessor, Mortgagee and any other person or entity designated by Lessor, 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 027545 11 720A5 -15- limitation, in connection with the exercise of any remedies or rights set forth in this Lease 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 Lessor's sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Lessee shall cooperate with and provide access to Lessor, Mortgagee and any other person or entity designated by Lessor; provided, however, the foregoing shall take reasonable steps so as to not unreasonably interfere with Lessee's business operations. Any such assessment or investigation shall be at Lessee's sole cost and expense. G. Except as otherwise provided in the Environmental Indemnity Agreement, Lessee 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 Lessor'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 Lessee, any person or entity affiliated with Lessee or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, 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 Lessee, any person or entity affiliated with Lessee 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 Lessee, any person or entity affiliated with Lessee 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 Lessee or any other tenant, subtenant or users of the Premises in arranging for disposal or 821545.11 7120/05 -16- treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials, Regulated Substances or USTs owned or possessed by such Lessee 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 Lessee 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 Lessee 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. H. In addition to the other requirements of this Section, Lessee shall, at all times throughout the Lease Term, comply with all Applicable Regulations. 1. In the event of a conflict between the provisions of the Environmental Indemnity Agreement and this Lease, the Environmental Indemnity Agreement shall prevail. J. The obligations and rights and remedies of Lessor and Lessee set forth in this Section shall survive the termination, expiration and/or release of this Lease. 17. Condition of Premises; Maintenance. Lessee has inspected, or had the opportunity to inspect, the Premises and hereby accepts the Premises "AS IS" and "WHERE IS" with no representation or warranty of Lessor as to the condition thereof. The Premises shall be kept in good, clean, sanitary and working condition; and Lessee shall at all times at its own expense, maintain, repair and replace, as necessary, the Premises, whether or not the Premises were in such condition on the Effective Date. 18. Waste; Alterations and Improvements. Lessee shall not commit actual or constructive waste upon the Premises. During the Lease Term, Lessee shall not alter the exterior, structural, plumbing or electrical elements of the Premises in any manner without the consent of Lessor, which consent shall not be unreasonably withheld or conditioned; provided, however, Lessee may undertake nonstructural alterations to the Premises costing less than $25,000.00 without Lessor's consent. If Lessor's consent is required hereunder and Lessor consents to the making of any such alterations, the same shall be made by Lessee at Lessee's sole expense by a licensed contractor and according to plans and specifications approved by Lessor and subject to such other conditions as Lessor shall require. Any work at any time commenced by Lessee 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 Lease. Upon completion of any alterations, Lessee shall promptly provide Lessor 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 821545 11 720/05 -17- 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 Lessor. Lessee 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 Lessor, and Lessee shall execute and deliver to Lessor such instruments as Lessor may require to evidence the ownership by Lessor of such addition or alteration. 19. Indemnification. Lessee 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 Lessee'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 Lessee, its officers, employees, agents or other persons. It is expressly understood and agreed that Lessee's obligations under this Section shall survive the expiration or earlier termination of this Lease for any reason. 20. Quiet Enjoyment. So long as Lessee shall pay the rental and other sums herein provided and shall keep and perform all of the terms, covenants and conditions on its part herein contained, Lessee shall have the right to the peaceful and quiet occupancy of the Premises, subject to the terms of this Lease. Lessor makes no warranty respecting action by any other party. 21. Condemnation or Destruction. A. In case of a taking of all or any part of the Premises or the commencement of any proceedings or negotiations which might result in a taking for any public or quasi-public purpose by any lawful power or authority by exercise of the right of condemnation or eminent domain or by agreement between Lessor, Lessee and those authorized to exercise such right ("Taking"), Lessee will promptly give written notice thereof to Lessor, generally describing the nature and extent of such Taking and including copies of any documents or notices received in connection therewith. B. In case of a Taking of the whole of the Premises, other than for temporary use ("Total Taking"), the obligations of Lessee with respect to the Premises shall terminate as of the date of the Total Taking. Lessee's obligations to Lessor which accrue prior to the date of such Total Taking shall survive the termination of this Lease with respect to the Premises. A Total Taking shall include a taking of substantially all of the Premises if, in the Lessor's reasonable judgment, the remainder of the Premises is not usable and cannot be made usable for the purposes provided herein. Lessor shall be entitled to receive the entire award or payment in connection with any taking of the Premises without deduction for any estate vested in Lessee by this Lease. Lessee hereby expressly assigns to Lessor all of its right, title and interest in and to every such award or payment and agrees that Lessee shall not be entitled to any award or Payment for the value of Lessee's leasehold interest in this Lease. Lessee shall be entitled to claim and receive any award or payment from the condemning authority expressly granted for the interruption of its business and moving expenses, but only if such claim or award does not e23 545.11 iaoros -18- adversely affect or interfere with the prosecution of Lessor's claim for the Taking. Lessee shall promptly send Lessor copies of all correspondence and pleadings relating to any such claim. C. In case of a temporary use of all or any part of the Premises by a Taking ("Temporary Taking"), this Lease shall remain in full force and effect without any reduction of Base Annual Rental, Additional Rental or any other sum payable hereunder. Except as provided below, Lessee shall be entitled to the entire award for a Temporary Taking, whether paid by damages, rent or otherwise, unless the period of occupation and use by the condemning authorities shall extend beyond the date of expiration of this Lease, in which case the award made for such Taking shall be apportioned between Lessor and Lessee as of the date of such expiration. At the termination of any such Temporary Taking, Lessee will, at its own cost and expense and pursuant to the terms of Section 18 above, promptly commence and complete the restoration of the Premises; provided, however, Lessee shall not be required to restore the Premises if the Lease Term shall expire prior to, or within one year after, the date of termination of the Temporary Taking, and in such event Lessor shall be entitled to recover all damages and awards arising out of the failure of the condemning authority to repair and restore the Premises at the expiration of such Temporary Taking. D. In the event of a Taking of less than all of the Premises which is not a Total Taking and which is for other than a temporary use ("Partial Taking"), then this Lease shall continue in full force and effect on the following terms: (i) the Premises shall be reduced to exclude the portion which is the subject of the Partial Taking, (ii) all Base Annual Rental, Additional Rental and other sums and obligations due under this Lease shall continue unabated, and (ii) Lessee shall promptly commence and diligently prosecute restoration of the Premises to the same condition, as nearly as practicable, as prior to such partial condemnation. Lessor shall promptly make available in installments as restoration progresses an amount up to but not exceeding the amount of any award or compensation received by Lessor, upon request of Lessee accompanied by evidence reasonably satisfactory to Lessor that such amount has been paid or is due and payable and is properly a part of such costs and that Lessee has complied with the terms of Section 18 above in connection with the restoration. Lessor shall be entitled to keep any portion of such award, compensation or damages which may be in excess of the cost of restoration, and Lessee shall bear all additional costs, fees and expenses of such restoration in excess of the amount of any such award, compensation or damages. E. Notwithstanding the foregoing, if at the time of any Taking or at any time thereafter Lessee shall be in default under this Lease and such default shall be continuing, Lessor is hereby authorized and empowered but shall not be obligated, in the name and on behalf of Lessee and otherwise, to file and prosecute Lessee's claim, if any, for an award on account of any Taking and to collect such award and apply the same, after deducting all costs, fees and expenses incident to the collection thereof, to the curing of such default and any other then existing default under this Lease. F. In the event of damage or destruction to all or any part of the Premises, all awards, compensation or damages shall be paid to Lessor, and (i) all Base Annual Rental, Additional Rental and other sums and obligations due under this Lease shall continue unabated, and (ii) Lessee shall promptly commence and diligently prosecute restoration of the Premises to the same condition, as nearly as practicable, as prior to such damage or destruction. Lessor shall $27545.11 720105 -19- promptly make available in installments as restoration progresses an amount up to but not exceeding the amount of any award, compensation or damages received by Lessor, upon request of Lessee accompanied by evidence reasonably satisfactory to Lessor that such amount has been paid or is due and payable and is properly a part of such costs and that Lessee has complied with the terms of Section 18 above in connection with the restoration. Lessor shall be entitled to keep any portion of such award, compensation or damages which may be in excess of the cost of restoration, and Lessee shall bear all additional costs, fees and expenses of such restoration in excess of the amount of any such award, compensation or damages. G. Notwithstanding the foregoing, nothing in this Section 21 shall be construed as limiting or otherwise adversely affecting the representations, warranties, covenants and characterizations set forth in Lease, including, without limitation, those provisions set forth in Section 4 of this Lease. 22. Inspection. Lessor and its authorized representatives shall have the right, upon giving reasonable notice, to enter the Premises or any part thereof and inspect the same and make photographic or other evidence concerning Lessee's compliance with the terms of this Lease. Lessee hereby waives any claim for damages for any injury or inconvenience to or interference with Lessee's business, any loss of occupancy or quiet enjoyment of the Premises and any other loss occasioned by such entry. Lessee shall keep and maintain at Lessee's chief executive office full, complete and appropriate books of account and records of Lessee's business relating to the Premises in accordance with generally accepted accounting principles consistently applied. The books and records for the Premises shall at all times be open for inspection by Lessor or Mortgagee, their auditors or other authorized representatives. 23. Default, Remedies and Measure of Damages. A. Each of the following shall be an event of default under this Lease (each, an "Event of Default"): (i) If any representation or warranty of Lessee set forth in this Lease is false in any respect which falsity would have a Material Adverse Effect, or if Lessee renders any statement or account which is false in any material respect; (ii) If any rent or other monetary sum due under this Lease is not paid within five days from the date when due; provided, however, notwithstanding the occurrence of such an Event of Default, Lessor shall not be entitled to exercise its remedies set forth below unless and until Lessor shall have given Lessee notice thereof and a period of five days from the delivery of such notice shall have elapsed without such Event of Default being cured; (iii) If Lessee fails to pay, prior to delinquency, any taxes, assessments or other charges the failure of which to pay will result in the imposition of a lien against the Premises pursuant to Applicable Regulations; (iv) If Lessee becomes insolvent within the meaning of the Code, files or notifies Lessor that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, 827545.11 7I2OMS -20- winding up or adjustment of debts (collectively, hereinafter, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due; (v) If Lessee vacates or abandons the Premises, except as permitted by this Lease; (vi) If Lessee fails to observe or perform any of the other covenants, conditions, or obligations of this Lease; provided, however, if any such failure does not involve the payment of any monetary sum, does not place any rights or Premises of Lessor in immediate jeopardy, and is within the reasonable power of Lessee to promptly cure after receipt of notice thereof, all as determined by Lessor in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee notice thereof and a period of 30 days shall have elapsed, during which period Lessee may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as determined by Lessor in its reasonable discretion, and Lessee is diligently pursuing a cure of such failure, then Lessee shall have a reasonable period to cure such failure beyond such 30-day period, which shall in no event exceed 90 days after receiving notice of the failure from Lessor. If Lessee shall fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required; (vii) If a final, nonappealable judgment is rendered by a court against Lessee which has a Material Adverse Effect and is not discharged or provision made for such discharge within 60 days from the date of entry thereof, (viii) If a default on the part of Lessee shall occur under any loan agreement, contract or other agreement pursuant to which Lessee has granted to a third party a security interest in any property of Lessee located at the Premises or used in connection with the operation of Lessee's business at the Premises; or (ix) If a default on the part of Lessee or any Affiliate of Lessee shall occur under any lease or sublease pursuant to which such party leases or subleases any other property from Lessor or any Affiliate of Lessor, unless (a) the Premises and such other property shall be subject to mortgages or ground leases held by different mortgagees or ground lessors, and (b) in such event, either Lessor or Mortgagee shall, at their respective options, declare by written notice to the other and to Lessee that such occurrence shall not constitute an Event of Default hereunder. B. 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 A above or such other notice as may be required by statute and cannot be waived by Lessee (all other notices being hereby waived), Lessor shall be entitled to exercise, at its option, $23545.11 MOW -21- concurrently, successively, or-in any combination, all remedies available at law or in equity, including without limitation any one or more of the following: (i) To terminate this Lease, whereupon Lessee's right to possession of the Premises shall cease and this Lease, except as to Lessee's liability, shall be terminated. (ii) To reenter and take possession of the Premises, any or all personal property or fixtures of Lessee upon the Premises and, to the extent permissible, area development agreements, permits and other rights or privileges of Lessee pertaining to the use and operation of the Premises and to expel Lessee and those claiming under or through Lessee, 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 Lessor hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Lessor to terminate this Lease unless such notice specifically so states. If Lessee shall, after default, voluntarily give up possession of the Premises to Lessor, deliver to Lessor or its agents the keys to the Premises, or both, such actions shall be deemed to be in compliance with Lessor's rights and the acceptance thereof by Lessor or its agents shall not be deemed to constitute a termination of this Lease. Lessor reserves the right following any reentry and/or reletting to exercise its right to terminate this Lease by giving Lessee written notice thereof, in which event this Lease will terminate as specified in said notice. (iii) To seize all personal property and fixtures of Lessee upon the Premises which Lessee owns or in which it has an interest, in which Lessor shall have a landlord's lien and/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 Lessee's sole expense, without becoming liable for any loss or damage resulting therefrom and without resorting to legal or judicial process, procedure or action. (iv) To bring an action against Lessee for any damages sustained by Lessor or any equitable relief available to Lessor. (v) To relet the Premises or any part thereof for such term or terms (including a term which extends beyond the original Lease Term), at such rentals and upon such other terms as Lessor, in its sole discretion, may determine, with all proceeds received from such reletting being applied to the rental and other sums due from Lessee in such order as Lessor, 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. Lessor 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 813345.11 MOM -22- collect any rent due upon such reletting, and no such refusal or failure shall operate to relieve Lessee of any liability under this Lease or otherwise to affect any such liability. Lessor reserves the right following any such reentry and/or reletting to exercise its right to terminate this Lease by giving Lessee written notice thereof, in which event this Lease will terminate as specified in said notice. (vi) To accelerate and recover from Lessee all rent and other monetary sums due and owing and scheduled to become due and owing under this Lease both before and after the date of such breach for the entire original scheduled Lease Term. (vii) To recover from Lessee 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 Lessor as a result of such breach, regardless of whether or not legal proceedings are actually commenced. (viii) To immediately or at any time thereafter, and with or without notice, at Lessor's sole option but without any obligation to do so, correct such breach or default and charge Lessee all costs and expenses incurred by Lessor therein. Any sum or sums so paid by Lessor, together with interest at the Default Rate, shall be deemed to be additional rent hereunder and shall be immediately due from Lessee to Lessor. Any such acts by Lessor in correcting Lessee's breaches or defaults hereunder shall not be deemed to cure said breaches or defaults or constitute any waiver of Lessor's right to exercise any or all remedies set forth herein. In the event that a Mortgage or any other loan document secured by a Mortgage shall contain a cure period shorter than that set forth in this Lease, then Lessor shall be entitled to exercise the rights contained in this subsection prior to the expiration of such shorter cure period so as to avoid default under such Mortgage or other loan document. (ix) To immediately or at any time thereafter, and with or without notice, except as required herein, set off any money of Lessee held by Lessor under this Lease against any sum owing by Lessee hereunder. (x) To seek any equitable relief available to Lessor, including, without limitation, the right of specific performance. C. In the event that the Premises is located in Pennsylvania, the provisions of this Subsection C 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, 823545.11 7R0W -23- 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 LEASE, 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 LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL LEASE. 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 LEASE TERM AND/OR DURING OR AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM. 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 LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL LEASE. 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 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, LESSOR 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 LEASE UNDER ANY OF THE TERMS OF THIS LEASE, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS TO RECOVER POSSESSION OF THE PREMISES 823545.11 MOM -24- 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 LEASE 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. D. All powers and remedies given by this Section to Lessor, 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 Lessor under this Lease, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements of Lessee contained in this Lease, and no delay or omission of Lessor 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 Lessor may be exercised from time to time, and as often as may be deemed expedient, by Lessor, subject at all times to Lessor's right in its sole judgment to discontinue any work commenced by Lessor or change any course of action undertaken by Lessor. 24. Mortgage, Subordination, Nondisturbance and Attornment. A. Lessor's interest in this Lease and/or the Premises shall not be subordinate to any encumbrances placed upon the Premises by or resulting from any act of Lessee, and nothing herein contained shall be construed to require such subordination by Lessor. Lessee shall keep the Premises free from any liens for work performed, materials furnished or obligations incurred by Lessee. EXCEPT AS OTHERWISE CONSENTED TO BY LESSOR PURSUANT TO SECTION 26, NOTICE IS HEREBY GIVEN THAT LESSEE 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 LESSEE'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED TRANSACTION SHALL BE VOID. FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS INTERFERENCE WITH LESSOR'S RELATIONSHIP WITH LESSEE AND LESSOR'S FEE OWNERSHIP OF THE PREMISES. B. 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 Lessor, and Lessee covenants and agrees to execute and deliver, upon demand, such further instruments subordinating this Lease to the lien or interest of any or all such Ground Leases or Mortgages as shall be desired by Lessor or any present or proposed Ground Lessor or Mortgagee. Notwithstanding the foregoing, the subordination of this Lease to any future Ground Lease or Mortgage shall be subject to the execution by such Ground Lessor or Mortgagee of a subordination, nondisturbance and attornment agreement in substantially the form set forth in e23545.I 17120105 -25- Exhibit C or such other form as is reasonably acceptable to such future Ground Lessor or Mortgagee. C. If any Mortgagee, receiver or other secured party elects to have this Lease and the interest of Lessee hereunder be superior to any such interest or right and evidences such election by notice given to Lessee, then this Lease and the interest of Lessee hereunder shall be deemed superior to any such Mortgage, whether this Lease 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 Lease 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. D. Although the foregoing provisions shall be self-operative and no future instrument of subordination shall be required, upon request by Lessor, Lessee shall execute and deliver whatever instruments may be required for such purposes, and in the event Lessee fails so to do within 10 days after demand, Lessee does hereby make, constitute and irrevocably appoint Lessor 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. E. In the event that any existing or prospective Ground Lessor or Mortgagee requires a modification or modifications of this Lease, 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 Lessee under this Lease, Lessee agrees that this Lease may be so modified and agrees to execute whatever documents are required therefore and deliver the same to Lessor within ten (10) days following written request by Lessor. In the event Lessee fails to execute and deliver such documents within ten (10) days of written request by Lessor, Lessee does hereby make, constitute and appoint Lessor as Lessee'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. F. 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 Lessor as landlord under this Lease, Lessee shall attorn to such Ground Lessor or Mortgagee or such purchaser or assignee, as the case may be (individually and collectively, a "Successor Lessor"), and recognize the Successor Lessor as Lessor under this Lease, and this Lease shall continue in full force and effect as a direct lease between the Successor Lessor and Lessee, provided that the Successor Lessor shall only be liable for any obligations of the Lessor under this Lease which accrue after the date that such Successor Lessor acquires title. The foregoing provision shall be self operative and effective without the execution of any further instruments. G. Lessee 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 Lessee has been notified of any breach or default by Lessor of any of its obligations under this Lease. If, within thirty (30) days after receipt of written notice from Lessee, Mortgagee, at Mortgagee's sole option, commences to cure a default of Lessor under this Lease that is capable of being cured by Mortgagee, or commences to pursue any other of its remedies under the Mortgage and 823545.11 N20101 -26- thereafter diligently pursues such cure to completion, Lessee agrees not to terminate this 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 this Lease. Upon request by Lessor, Lessee shall also provide Lessee's most recent audited financial statements to Lessor or any such Ground Lessor or Mortgagee and certify the continuing accuracy of such financial statements in such manner as Lessor and such Ground Lessor or Mortgagee may request. 25. Estoppel Certificate. A. At any time, and from time to time, Lessee agrees, promptly and in no event later than 10 days after a request from Lessor or any Ground Lessor or Mortgagee of the Premises to execute, acknowledge and deliver to Lessor or any present or proposed Ground Lessor or Mortgagee or purchaser designated by Lessor, any Ground Lessor or Mortgagee of the Premises a certificate in the form supplied by Lessor, certifying: (i) that Lessee has accepted the Premises (or, if Lessee has not done so, that Lessee has not accepted the Premises, and specifying the reasons therefor); (ii) that this Lease is in full force and effect and has not been modified (or if Modified, setting forth all modifications), or, if this Lease is not in full force and effect, the certificate shall so specify the reasons therefor; (iii) the commencement and expiration dates of the Lease Term and the terms of any extension options of Lessee; (iv) the date to which the rentals have been paid under this Lease and the amount thereof then payable; (v) whether there are then any existing defaults by Lessor in the performance of its obligations under this Lease, and, if there are any such defaults, specifying the nature and extent thereof; (vi) that no notice has been received by Lessee of any default under this Lease 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 Lessee; (viii) that neither Lessor 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 Lease; and (ix) any other information reasonably requested by Lessor, or its present or proposed purchaser or Ground Lessor or Mortgagee. B. If Lessee shall fail or refuse to sign a certificate in accordance with the provisions of this Section within 10 days following a request by Lessor, Lessee irrevocably constitutes and appoints Lessor as its attorney-in-fact to execute and deliver the certificate to any such third party, it being stipulated that such power of attorney is coupled with an interest and is irrevocable and binding. $2]565.11 7/20105 -27- 26. Assignment. A. If Ground Lessor or Mortgagee shall succeed to the rights of Lessor as landlord under this Lease, 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 Lessor, shall have the right to sell or convey the Premises or to assign its right, title and interest as Lessor under this Lease in whole, but not in part. In the event of any such sale or assignment other than a security assignment, Lessee shall attom to such purchaser or assignee and Lessor shall be relieved, from and after the date of such transfer or conveyance, of liability for the performance of any obligation of Lessor contained herein, except for obligations or liabilities accrued prior to such assignment or sale (provided, however, nothing in this Section 26 shall impose liability on Ground Lessor or Mortgagee or such purchaser or assignee, as Lessor, for the obligations of Lessor accruing under this Lease prior to the time Ground Lessor or Mortgagee or such purchaser or assignee, as the case may be, succeeds to Lessor's rights as Lessor under this Lease). B. Lessee acknowledges that Lessor has relied both on the business experience and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Premises in entering into this Lease. Without the prior written consent of Lessor, (i) Lessee shall not assign, transfer, convey, pledge or mortgage this Lease or any interest therein, whether by operation of law or otherwise; (ii) no interest in Lessee shall be assigned, transferred, conveyed, pledged or mortgaged, whether by operation of law or otherwise, including, without limitation, a dissolution of Lessee; and (iii) Lessee shall not sublet all or any part of the Premises. Lessor agrees that it shall not unreasonably withhold or delay its consent to such matters, it being understood that Lessor's consent may be based upon such matters as Lessor may in its reasonable discretion determine, including, without limitation, the experience and creditworthiness of any assignee, the assumption by any assignee of all of Lessee's obligations hereunder by undertakings enforceable by Lessor, the transfer to any assignee of all necessary licenses to continue operating the Premises for the purposes herein provided, receipt of such representations and warranties from any assignee as Lessor may 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 Lease which is approved by Lessor, the assignee shall assume all of the obligations of Lessee under this Lease pursuant to Lessor's standard form of assumption agreement. No such assignment nor any subletting of the Premises shall relieve Lessee of its obligations respecting this Lease. Any assignment, transfer, conveyance, pledge or mortgage in violation of this paragraph shall be voidable at the sole option of Lessor. 27. Notices. All notices, consents, approvals or other instruments required or permitted to be given by either party pursuant to this Lease ("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 923 545.11 7RO105 -28- 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 Lessor: 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 Lessee: SAIMA INTERNATIONAL, INC. Attn: Aijaz A. Shaikh, President 2203 Glen Allen Avenue, Apt T-2 Silver Spring, MD 20906 Telephone: Telecopy: 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 Lessor has provided Lessee with contact information for such party. The contact information for General Electric is: GE Capital Franchise Finance Corporation 17207 North Perimeter Drive Scottsdale, AZ 85255 Attn: Collateral Management Telephone. (480) 585-4500 Telecopy: (480) 585-2225 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. 28. Holding Over. If Lessee remains in possession of the Premises after the expiration of the term hereof, Lessee, at Lessor's option and within Lessor's sole discretion, may be deemed a tenant on a month-to-month basis and shall continue to pay rentals and other sums in the amounts herein provided, except that the Base Monthly Rental shall be automatically doubled, and to comply with all the terms of this Lease; provided that nothing herein nor the acceptance of rent by Lessor shall be deemed a consent to such holding over. Lessee shall defend, indemnify, protect and hold Lessor harmless from and against any and all claims, losses and liabilities for damages resulting from Lessee's failure to surrender possession upon the expiration of the Lease Term, including, without limitation, any claims made by any succeeding lessee. 29. Lessor's Lien/Security Interest. Lessee agrees that Lessor shall have a landlord's lien, and additionally hereby separately grants to Lessor a first and prior security interest, in, on :23545.11 M0105 -29- and against all personal property belonging to Lessee 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 Lessee to Lessor under the terms hereof and all other obligations of Lessee to Lessor under this Lease; 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 Lessee 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 Lessee 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. Lessee further agrees to execute and deliver to Lessor from time to time such financing statements and other documents as Lessor 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 Lessor whether hereunder or at law or in equity, in the event of any default of Lessee hereunder, Lessor shall have any and all rights and remedies of Lessor granted a secured party under the Uniform Commercial Code then in effect in the State. If Lessee shall fail for any reason to execute any such financing statement or document within 10 days after Lessor's request therefor, Lessor shall have the right to execute the same as attorney-in-fact of Lessee, coupled with an interest, for, and on behalf, and in the name of Lessee. Lessee covenants to promptly notify Lessor of any changes in Lessee'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 Lessor's consent to such changes). 30. Removal of Lessee's Property. At the expiration of the Lease Term, and if Lessee is not then in breach hereof, Lessee may remove from the Premises all personal property belonging to Lessee. Lessee shall repair any damage caused by such removal and shall leave the Premises broom clean and in good and working condition and repair inside and out. Any property of Lessee left on the Premises on the tenth day following the expiration of the Lease Term shall automatically and immediately become the property of Lessor, provided, however, that this provision shall not relieve Lessee from the obligation to dispose of such property if requested by Lessor. 31. Financial Statements. Within 45 days after the end of each fiscal quarter, and within 120 days after the end of each fiscal year of Lessee, Lessee shall deliver to Lessor (i) complete financial statements of Lessee 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 Lessee (or the Treasurer or other appropriate officer of Lessee). Lessee agrees to reasonably cooperate with Lessor's requests to provide such financial information prior to the end of the applicable period established for delivering such information. Lessee understands that Lessor is relying upon such financial statements and Lessee represents that such reliance is reasonable. In the event that Lessee'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 823545 It 7120M -30- set forth. The financial statements delivered to Lessor need not be audited, but Lessee shall deliver to Lessor copies of any audited financial statements of Lessee which may be prepared, as soon as they are available. Lessor shall be permitted to share copies of all Lessee financial statements and other information concerning this Lease with any Mortgagee or prospective purchaser of the Premises. 32. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, acts of God, enemy or hostile governmental action, civil commotion, fire or other casualty beyond the control of the party obligated to perform shall excuse the performance by such party for a period equal to any such prevention, delay or stoppage, except the obligations imposed with regard to rental and other monies to be paid by Lessee pursuant to this Lease. 33. Document Review. In the event Lessee makes any request upon Lessor requiring Lessor or its attorneys to review and/or prepare (or cause to be reviewed and/or prepared) any document or documents in connection with or arising out of or as a result of this Lease, then, except as expressly stated elsewhere herein, Lessee shall reimburse Lessor or its designee promptly upon Lessor's demand therefor a reasonable processing and review fee. 34. Time is of the Essence. Time is of the essence with respect to each and every provision of this Lease in which time is a factor. 35. Consent of Lessor. Unless specified otherwise herein, Lessor's consent to any request of Lessee may be conditioned or withheld in Lessor's sole discretion. Lessor shall have no liability for damages resulting from Lessor's failure to give any consent, approval or instruction reserved to Lessor, Lessee'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 a Mortgage or Ground Lease, Lessee shall be required to obtain such consent or approval from both Lessor and Mortgagee. 36. Waiver and Amendment. No provision of this Lease 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. No acceptance by Lessor of an amount less than the monthly rent and other payments stipulated to be due under this Lease shall be deemed to be other than a payment on account of the earliest such rent or other payments then due or in arrears nor shall any endorsement or statement on any check or letter accompanying any such payment be deemed a waiver of Lessor's right to collect any unpaid amounts or an accord and satisfaction. 37. Successors Bound. Except as otherwise specifically provided herein, the terms, covenants and conditions contained in this Lease shall bind and inure to the benefit of the respective heirs, successors, executors, administrators and assigns of each of the parties hereto. 38. No Merger. The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof, shall not result in a merger of Lessor's and Lessee's estates, and shall, at the option of Lessor, either terminate any or all existing subleases or subtenancies, or operate as an assignment to Lessor of any or all of such subleases or subtenancies. 827545.11 7f2DM -31- 39. Captions. Captions are used throughout this Lease for convenience of reference only and shall not be considered in any manner in the construction or interpretation hereof. 40. Enforceability. If any part of this Lease shall be held unenforceable by any court of competent jurisdiction, 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. 41. Relationship of the Parties; Interpretation. A. 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 Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any way responsible for the debts, obligations or losses of Lessee. B. This Lease shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument, the relative bargaining powers of the parties or the domicile of any party. Whenever in this Lease any words of obligation or duty are used, such words or expressions shall have the same force and effect as though made in the form of a covenant. 42. Easements. During the Lease Term, Lessor shall have the right to grant utility easements on, over, under and above the Premises without the prior consent of Lessee, provided that such easements will not materially interfere with Lessee's long-term use of the Premises. 43. Bankruptcy. A. As a material inducement to Lessor executing this Lease, Lessee acknowledges and agrees that Lessor is relying upon (i) the financial condition and specific operating experience of Lessee and Lessee's obligation to use the Premises as a Uni-Mart Facility in accordance with standards adopted on a system-wide basis, (ii) Lessee's timely performance of all of its obligations under this Lease notwithstanding the entry of an order for relief under the Code for Lessee, (iii) all defaults under this Lease being cured promptly, (iv) the characterization of this Lease as set forth in Section 4, and (v) this Lease being assumed within 60 days of any order for relief entered under the Code for Lessee, or this Lease being rejected within such 60 day period and the Premises surrendered to Lessor. Accordingly, in consideration of the mutual covenants contained in this Lease and for other good and valuable consideration, Lessee hereby agrees that: (i) All obligations that accrue under this Lease (including the obligation to pay rent), from and after the date that an Action is commenced shall be timely performed exactly as provided in this Lease and any failure to so perform shall be harmful and prejudicial to Lessor; (ii) Any and all obligations under this Lease that become due from and after the date that an Action is commenced and that are not paid as required by this Lease 827545.11 72005 -32- shall, in the amount of such rents, constitute administrative expense claims allowable under the Code with priority of payment at least equal to that of any other actual and necessary expenses incurred after the commencement of the Action; (iii) Any extension of the time period within which the Lessee may assume or reject this Lease without an obligation to cause all obligations coming due under this Lease from and after the date that an Action is commenced to be performed as and when required under this Lease shall be harmful and prejudicial to Lessor; (iv) Any time period designated as the period within which the Lessee must cure all defaults and compensate Lessor for all pecuniary losses which extends beyond the date of assumption of this Lease shall be harmful and prejudicial to Lessor; (v) Any assignment of this Lease must result in all terms and conditions of this Lease being assumed by the assignee without alteration or amendment, and any assignment which results in an amendment or alteration of the terms and conditions of this Lease without the express written consent of Lessor shall be harmful and prejudicial to Lessor; (vi) Any proposed assignment of this Lease to an assignee: (a) that will not use the Premises specifically as a Uni-Mart Facility in accordance with standards adopted on a system-wide basis, or (b) that does not possess a financial condition, operating performance and experience characteristics equal to or better than the financial condition, operating performance and experience of Lessee as of the Effective Date, shall be harmful and prejudicial to Lessor; and (vii) The rejection (or deemed rejection) of this Lease for any reason whatsoever shall constitute cause for immediate relief from the automatic stay provisions of the Code, and Lessee stipulates that such automatic stay shall be lifted immediately and possession of the Premises will be delivered to Lessor immediately without the necessity of any further action by Lessor. (viii) This Lease shall at all times be treated and interpreted in a manner consistent with the specific characterizations set forth in Section 4 of this Lease, and assumption or rejection of this Lease shall be (a) in its entirety and (b) in strict accordance with the specific terms and conditions of this Lease. B. No provision of this Lease shall be deemed a waiver of Lessor's rights or remedies under the Code or applicable law to oppose any assumption and/or assignment of this Lease, to require timely performance of Lessee's obligations under this Lease, or to regain possession of the Premises as a result of the failure of Lessee to comply with the terms and conditions of this Lease or the Code. C. Notwithstanding anything in this Lease to the contrary, all amounts payable by Lessee to or on behalf of Lessor under this Lease, whether or not expressly denominated as such, shall constitute "rent" for the purposes of the Code. 823545 .1 V 712OMS -33- D. For purposes of this Section addressing the rights and obligations of Lessor and Lessee in the event that an Action is commenced, the term "Lessee" shall include Lessee's successor in bankruptcy, whether a trustee, Lessee as debtor in possession or other responsible person. 44. No Offer. No contractual or other rights shall exist between Lessor and Lessee with respect to the Premises until both have executed and delivered this Lease, notwithstanding that deposits may have been received by Lessor and notwithstanding that Lessor may have delivered to Lessee an unexecuted copy of this Lease. The submission of this Lease to Lessee shall be for examination purposes only, and does not and shall not constitute a reservation of or an option for Lessee to lease or otherwise create any interest on the part of Lessee in the Premises. 45. Other Documents. Each of the parties agrees to sign such other and further documents as may be necessary or appropriate to carry out the intentions expressed in this Lease. 46. Attorneys' Fees. In the event of any judicial or other adversarial proceeding between the parties concerning this Lease, to the extent permitted by law, the prevailing party shall be entitled to recover all of its reasonable attorneys' fees and other costs in addition to any other relief to which it may be entitled. In addition, Lessor shall, upon demand, be entitled to all reasonable attorneys' fees and all other costs incurred in the preparation and service of any notice or demand hereunder, whether or not a legal action is subsequently commenced. References in this Lease to Lessor's reasonable attorneys' fees and/or costs shall mean both the fees and costs of independent counsel retained by Lessor with respect to the matter and the fees and costs of Lessor's in-house counsel incurred in connection with the matter. 47. Entire Agreement. This Lease and any other instruments or agreements referred to herein constitute the entire agreement between the parties with respect to the subject matter hereof, and there are no other representations, warranties or agreements except as herein provided. Without limiting the foregoing, Lessee specifically acknowledges that neither Lessor nor any agent, officer, employee or representative of Lessor has made any representation or warranty regarding the projected level of Lessee's gross sales for the Premises or the projected profitability of the business to be conducted on the Premises. Furthermore, Lessee acknowledges that Lessor did not prepare or assist in the preparation of any of the projected figures used by Lessee in analyzing the economic viability and feasibility of the business to be conducted by Lessee at the Premises. 48. Forum Selection; Jurisdiction; Venue; Choice of Law. For purposes of any action or proceeding arising out of this Lease, the parties hereto expressly submit to the jurisdiction of all federal and state courts located in the State. Lessee consents that it 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, Lessee waives and agrees 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 Lease shall be governed by and construed in accordance with the internal laws of the State, without regard to principles of conflict of law. 827545.11 MOM -34- 49. Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original. 50. Joint and Several Liability. If Lessee consists of more than one individual or entity, each such individual and/or entity shall be jointly and severally liable for all obligations of Lessee under this Lease. 51. Limitation of Lessor's Liability. Lessee shall look solely to Lessor's interest in the Premises for enforcement of any obligation of Lessor under this Lease or under applicable law. No other property or other assets of Lessor shall be subject to levy, execution or other enforcement proceeding for the satisfaction of Lessee's remedies or with respect to this Lease, the relationship of landlord and tenant or Lessee's use and occupancy of the Premises. 52. Termination Document. Upon Lessor's request, Lessee agrees to execute and acknowledge a termination of lease and/or quit claim deed in recordable form with respect to the Premises to be held by Lessor until the expiration or sooner termination of the Lease Term. 53. No Brokerage. Lessor and Lessee represent and warrant to each other that they have had no conversation or negotiations with any broker concerning the leasing of the Premises except Lessor's Broker. Lessor shall be solely responsible for all fees payable to Lessor's Broker. Each of Lessor and Lessee agrees to protect, indemnify, save and keep harmless the other, against and from all liabilities, claims, losses, costs, damages and expenses, including reasonable attorneys' fees, arising out of, resulting from or in connection with their breach of the foregoing warranty and representation. 54. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect Damages. LESSOR AND LESSEE 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 EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LESSOR AND LESSOR, LESSEE'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY LESSEE`AGAINST LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY LESSEE OF ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, $23545.11 V20105 -35- ESSENT DAMAGES HAS BEEN CONSEQUENTIAL, AND AND INDIECT ASPECT OF THEIR BARGOAIN TED BY THE PARTIES 55. Automatic Teller Machine. Lessor 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 Lessee. Lessor shall be responsible for arranging for the installation of the ATM, at Lessor's cost, and shall be permitted to install necessary utilities and communications cabling. Lessee shall not install or permit the installation of any automatic teller machine other than the ATM. 56. Signage. Lessor 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 Lessee, 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 Lessee'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 Lessee. Lessor shall share with Lessee fifty percent (50%) of any net income earned by Lessor from time to time in connection with the sale of signage rights in and about the Premises. 57. Telecommunications Antennae. Lessor 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 Lessor, 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 Lessee's operations at the Premises. Lessor shall be responsible for arranging for the installation of the Antennae, at Lessor's cost, and shall be permitted to install necessary utilities and communications cabling. Lessee shall not install or permit the installation of any telecommunications antennae other than the Antennae. 923 54S. 11 7/20M -36- IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as of the date first above written. LESSOR UNI-MARTS, LLC, a Pennsylvania lipited liability company By: Manager LESSEE SAIMA INTERNATIONAL, INC., a Pennsylvania corporation V"? By: Name iijaz A Shaikh Title: President !23545.11 7/20/05 -37- Exhibit A Legal Description - SEE ATTACHED 623543.11 720/05 A-1 ,M6d V a j W c W 111111#111W :insurance Corporation NATIONAL HEADQUARTERS RICHMOND. VIRGINIA SCHEDULE A contd. 04 -T ALL THOSE THREE CERTAIN tracts of land situate in North Middleton Township, Cumberland County, Pennsylvania, Tracts No. 1 and No. 2 bounded and described in accordance with a survey prepared by Charles R. Cook, RPLS, dated December 28, 1989 as follows, to wit: TRACT No. 1: BEGINNING at a point in SR 0034, Spring Road, at corner of Tract 2, described; thence along Tract No. 2, North 79 degrees 15 minutes 00 seconds West 150.00 feet to a P.K. nail set; thence still along Tract No. 2 described, South 05 degrees 20 minutes West 25.00 feet to a P.K. nail set; thence along other lands of Robert L. Noll, (Tract No. 3 described) North 79 degrees 03 minutes 54 seconds West 160.00 feet to a pin set; thence along lands of P.K. Miller, North 07 degrees 56 minutes 02 seconds East 174.30 feet to a pin set; thence still along lands of P.K. Miller, South 79 degrees 00 minutes East 288.50 feet to a point in SR 0034, Spring Road; thence along and through spring Road, South 00 degrees 10 minutes 44 seconds West 151.02 feet to a point, the Place of BEGINNING. BEING designated as Tract No. 1 on survey. TRACT NO. 2: BEGINNING at a point in SR 0034, Spring Road, at corner if other lands of Robert L. Noll; thence along lands of Noll, North 84 degrees 59 minutes West 149.33 feet to an iron pipe; thence still along lands of Noll (Tract No. 3 and Tract No. 1 described), North 05 degrees 20 minutes East 115.00 feet to a P.K. nail set; thence along Tract 1 described, South 79 degrees 15 minutes 00 seconds East 150.00 feet to a point in Spring Road; thence along and through SR 0034, Spring Road,. South 05 degrees 15 minutes 17 seconds West 100.02 feet to a point, the Place of BEGINNING. BEING designated as Tract 2 on survey. TRACT NO. 3: BEING a tract of ground numbered and described in accordance with Plan No. 6 of Schlusser Village, recorded in the hereinafter mentioned Recorder's Office in Plan Book 9, Page 38, as follows: continued Schedule A Page 2 No. 11395 C. C. V ASTEHE:R Law'yers Ttle Insurance Corporation NATIONAL HEADQUARTERS RICHMOND, VIRGINIA SCHEDULE A contd. BEGINNING at a point on the northern line of Fry Avenue Loop at the Northwestern corner of Lot No. 153 now or formerly of Ernest Clelan and wife; thence by the northern line of said Fry Avenue Loop by a curve to the left, an arc distance of 50 feet, said arc having a chord bearing north 51 degrees 50 minutes 30 seconds West and a chord distance of 49.61 feet; thence still by a curve to the left, an arc distance of 23.55 feet to a point on said northern line of Fry Avenue Loop, a chord of said second arc having a bearing of North 72 degrees 24 minutes 30 seconds West and a distance of 23.5 feet; thence by the northern line of said Fry Avenue Loop, North 79 degrees 3 minutes 30 seconds West, a distance of 1.5 feet to a point; thence along lands now or formerly of Robert C. Lightner and wife, a distance of 160 feet, more or less to a point on the northern line of Lot No. 155 which point is 65 feet East of the Northeastern corner of Lot No. 156; thence along the Northern line of said Lot No. 155 and Lot No. 154, South 79 degrees 3 minutes 30 seconds East a distance of 190.9 feet to a point; thence along the eastern line of Lot No. 154, South 5 degrees 20 minutes 30 seconds West, a distance of 63 feet to a point in line of lands now or formerly of Ernest Clelan and wife; thence along said line of land now or formerly of Ernest Clelan and wife, South 67 degrees 1 minute West, a distance of 201.81 feet to a point on the northern line of Fry Avenue Loop, the Place of BEGINNING. BEING THE SAME PREMISES which Robert L. Noll and Mary E. Noll, his wife, conveyed unto Uni-Marts, Inc., a Delaware Corporation, by deed dated October 29, 1993 and recorded November 1, 1993 in the Recorder's office in and for Cumberland County, Pa. in Record Book P, Volume 36, Page 934. . Schedule A Page 3 No. 11395 h , i 1 1 _-_- --, I 444 czl? 03 PLY Y&MM -ACTA fAr S\I 1_LNI111.1 LL%CR%•ET'• I I UNI•M?s1?R'?'$ INC. fj.17S.F7 SQU?1tL FEET r[er.ucu - A m" U." IN: / Rll{ACRLA .q FIAOOZONCC I /[11ytF L YATTHMS. INC. ..na.. wwa .Iowan > if to? 7 II _ MGflyn J. Jenkins 6 AssaClates. Inc 1 {Nr,,N[[YS [ Rl k a /1 / -? • IYffi [vl wwerw.olKa onmc-4w •xaia- 17M b [ w q1.N • IIf.tY : • C.n?.f?w hr M rM Y wW "-. N •11.9' / .:T =? .NSW. :"'n•:•'?*' /al .Nn•lc'rrv `i-: FFCAACQUISMON a?Rl•una nun j : 1P N.tl' 6 •P1h 0 -tyr[ru+' •C.al.lr? fbrli,lt. PA Exhibit B Third Party Leases 823545.11 7/2OM5 B-1 Exhibit C Form of Estoppel, Subordination, Nondisturbance and Attornment Agreement Recording requested by and when recorded return to: ESTOPPEL, SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT THIS ESTOPPEL, SUBORDINATION, NON-DISTURBANCE AND ATFORNMENT 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 Lease 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 Landlord 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. 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 823545.11 72OMS C-1 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: 1. 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. 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 877543.11 7/70/05 C-2 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. 5. 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 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. 521545.11 MOM C'-3 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 1. 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 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. 827545.11 7!10105 C-4 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; B. all requirements for the commencement and validity of the Lease have been satisfied; 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. 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 in which the Premises is located (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 in accordance with the laws of the State. 823545 H 7n0MS C-5 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 State College, PA 16801-5690 Telephone: 814-234-6000 Telecopy: 814-234-3277 If to Tenant: Telephone: Telecopy: 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 B2754511 7120A5 C-6 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 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 Other Agreements. 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: 823545.11 7120)05 C_7 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 WITNESS WHEREOF, the parties have agreed to the terms of this Collateral Deposit Agreement on this _ day of 12005. UNI-MARTS, LLC By: Its: -Manager SAIMA INTERNATIONAL, INC. By: Its: President 610970.2 7/20105 Exhibit E FUEL SUPPLY AGREEMENT THIS AGREEMENT, made this _V day of ? , 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 1962 SPRING ROAD, CARLISLE, PA 17013 (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 607772 9 7/20105 of the Marketing Premises are repaired or replaced. 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 11-22-02 2 607772.9 moms the Termination Notice by the required date, this Agreement shall automatically renew for a 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 7120/05 Marketing Premises and shall be promptly received by Buyer. Payment terms for each delivery 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 4 607772,9 MOM 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 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 7/20/05 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 7/20/05 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 MOM 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 11-z2-o2 8 607772,9 MGM 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. 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. the Clean Air Act. 14. Claims; Bar Date; Damages 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 I1-i2-02 9 607772.9 7/20105 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 Majeure. 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-o2 10 607772.9 72105 16. Indemnity. 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. Default Termination, Non-Renewal, Notice, Right 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 1 t-22-o2 11 607772.9 7aWS 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. 11-22-02 12 60777x97/20/05 (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 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-z2-oz 13 607772.9 7120105 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 Buyer. 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 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 11-22-02 14 607772.9 7(20101 to be material and adverse. 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. ? ?-22-oz 15 607772.9 720/05 - 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 BY: 4D10Z. Sou islt /Manager WITNESS: BY: SAIMA INTERNATIONAL, INC. BY: Aijaz A. Shaikh President WITNESS: BY: 1 11-22-02 16 607772 9 7/20105 UNI-MARTS, LLC COMMODITY SCHEDULE DATED AjMa-a-L, 2005 BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC. PRODUCTS: MOTOR FUELS DELIVERY POINT: 1962 SPRING ROAD, CARLISLE, PA 17013 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 %) 212005. 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 453,600 gallons per year and a maximum of 530,000 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. 1 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 MOM 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 7/20/05 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"). Seiler 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: M a er SAIMA INTERNATIONAL, INC. By: Its: President 607724.6 7120105 UNI-MARTS, LLC COMMODITY SCHEDULE DATED ??St Z , 2005 BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC. PRODUCTS: KEROSENE DELIVERY POINT: 1962 SPRING ROAD, CARLISLE, PA 17013 This schedule is attached to and made part of a Fuel Supply Agreement between Buyer and Uni-Marts, LLC (the "Seller") dated VSfi 2-12005. 1. uanti . 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"). 607619.2 7/20/05 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. UNI-MARTS, LLC By: Its: M a er SAIMA INTERNATIONAL, INC. By: Its: President 607889.2 7/20/05 Site No.: 04234 Location: 1962 SPRING ROAD CARLISLE, PA 17013 Countk 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. 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. 610930.2 7/20105 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 WITNESS WHEREOF, the parties have agreed to the terms of this Collateral Deposit Agreement on this I day of , 2005. UNI-MARTS, LLC By: ` Its: M er SAIMA INTERNATIONAL, INC. By: 01-Its: President 610830.2 7120/05 Exhibit F Site No.: 04234 Location: 1962 Spring Road Carlisle PA 17013 County: Cumberland TRADEMARK LICENSE AGREEMENT This Trademark License Agreement ("Agreement") is made and entered into as of the -1- day of ALir_, 2005, by and between SAIMA INTERNATIONAL, INC., a Pennsylvania corporation 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). I Obligations of Purchaser. 610315.1 7/20/05 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 "T""", 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. 610)15.1 720/05 .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 shalt 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, 6103 15 1 7/20105 -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 UnWarts' 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 6103 15.1 7120A5 -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. 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: result in a violation of Purchaser's organizational documents (where appropriate), ii. contravene or conflict with, or constitute a violation of, any judgment, injunction, order or decree binding upon or applicable to Purchaser, iii. require any consent, approval or other action by any third party, or iv. contravene or conflict with, or constitute a violation of, any agreement to which Purchaser is a party or by which Purchaser is bound. 610315.1 720/07 -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 610]15.1 7/20/05 -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 6103 IS I 1/2010S -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, 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 moms -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. UN By: Its: SAIMA INTERNATIONA , INC. By: 7M Its: President 61031517/20105 -9- Exhibit G Uni-Marts, LLC Dealer Receivable Store #94234 12/15/10 Description N MIDLETON WAT&SEW 12/17 COUNTY/BOROUGH TAX 1/1-12/31/06 COUNTY/BOROUGH TAX 1/1-12/31/06 PROPERTY INSURANCE 2006 SCHOOL TAX 7/1/06-6/11/07 COUNTY/BOROUGH TAX 1/1-6/11/07 GAS DELIVERY DATED 5/29/07 AMOCO NETWORK FEE-JUN 07 JUN 07 RENT JUN 07 LATE RENT FEE RETURNED EFT FEES 6/5 & 6/7/07 GAS DELIVERY DATED 6/2/07 TRADEMARK FEE-MAY 07 AMOCO CREDIT CARDS & FEES 5/29- 6/2/07 TRADEMARK FEE-JUN 07 ATM COMMISSION-MAY 07 ATM RENT-MAY 07 FUEL DEPOSIT ATM COMMISSION-JUN 07 ATM RENT-JUN 07 SUBLET-SECURITY DEPOSIT GVNA REBATES-1ST QTR 07 FUEL SHORTFALL 2005-2006 Amount Balance billed 2/16/06 373.12 373.12 billed 5/17/06 407.79 780.91 billed 5/17/06 2,143.58 2,924.49 billed 9/13/06 578.00 3,502.49 billed 9/13/06 9,314.32 12,816.81 billed 4/26/07 1,163.16 13,979.97 10,438.35 24,418.32 125.00 24,543.32 5,941.76 30,485.08 594.17 31,079.25 60.00 31,139.25 24,965.28 56,104.53 200.00 56,304.53 (5,943.00) 50,361.53 200.00 50,561.53 (26.00) 50,535.53 78.00 50,613.53 (15,000.00) 35,613.53 (3.00) 35,610.53 28.60 35,639.13 1,100.00 36,739.13 (148.00) 36,591.13 2,933.14 39,524.27 Exhibit H Site No.: 04232 Location: 50 East Main-Street. Route 641 Plainfield PA 17081 County' Cumberland LEASE THIS LEASE (this "Lease") is made as of X , 2005 (the "Effective Date"), by and between UNI-MARTS, LLC, a Pennsylvania ' ited liability company ("Lessor"), whose address is 477 East Beaver Avenue, State College, Pennsylvania 16801-5690, and SAIMA INTERNATIONAL, INC., a Pennsylvania corporation ("Lessee"), whose address is 2203 Glen Allen Avenue, Apt T-2, Silver Spring, MD 20906. WITNESSETH: THAT, in consideration of the mutual covenants and agreements herein contained, Lessor and Lessee hereby covenant and agree as follows: 1. Certain Defined Terms. The following terms shall have the following meanings for all purposes of this Lease: "Action" has the meaning set forth in Section 23.A(iv). "Additional Rental" has the meaning set forth in Section 6.B. "Affiliate" or ""Affiliates" means any Person which directly or indirectly controls, is under common control with or is controlled by any other Person. For purposes of this definition, "controls", "under common control with", and "controlled by" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise. "Applicable Regulations" has the meaning set forth in Section 16.A. "Base Annual Rental" means (i) during the first Lease Year, Fifty-Seven Thousand, Six Hundred and Twelve Dollars ($57,612.00) per year, and (ii) commencing with the second Lease Year, and each and for every Lease Year thereafter (including the Lessor Extension Period if applicable), an amount equal to the lesser of (a) the Base Annual Rental for the immediately preceding Lease Year multiplied by one hundred two percent (102%) or (b) the Base Annual Rental for the immediately preceding Lease Year multiplied by the CPI Adjustment, but in no event shall Base Annual Rental decline as a result of this calculation. "Base Monthly Rental" means an amount equal to 1/12 of the applicable Base Annual Rental. Form 1 927515.11 7/19105 "Business Day" means a day on which Lessor is open for business other than Saturday, Sunday or a legal holiday, ending at 5:00 p.m. Philadelphia, Pennsylvania time. "Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended. "Courser' means legal counsel to Lessee, licensed in the state in which (i) the Premises are located; (ii) Lessee is formed; and (iii) Lessee maintains its principal place of business. "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 Lessor 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 reasonably selected by the Lessor 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. "Environmental Indemnity Agreement' 'means that certain Environmental Indemnity and Service Agreement dated the date hereof by and between Lessor and Lessee executed in connection with this Lease. "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 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, 627515.11 7/19M -2- 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 16.E. "Event of Default" has the meaning set forth in Section 23. "General Electric" means (a) the holder of the GE Mortgage, being either (i) GE Capital Franchise Finance Corporation ("GECFF") or (ii) LaSalle Bank National Association, as Indenture Trustee pursuant to that certain Indenture dated as of April 1, 1999 ("LaSalle") (for whom GECFF is servicer), and (b) to the extent that the GE Mortgage is held by LaSalle, GECFF as servicer of the GE Mortgage. "GE Mortgage" means that certain Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of June 30, 1998 executed by Lessor and held by General Electric as of the Effective Date. "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. 827545.11 7/1910S -3- "Ground Lease" means all ground leases or underlying leases executed by Lessor affecting the Premises including, without limitation, any ground lease that may be executed in connection with a sale/leaseback transaction entered into by Lessor with respect to the Premises. "Ground Lessor" means the lessor under a Ground Lease. "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 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 Lessor or Mortgagee, as applicable. "Lease Term" shall have the meaning described in Section 5. "Lease Year" shall have the meaning described in Section 5. "Lessor's Broker" means N/A "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). "Material Adverse Effect" means a material adverse effect on (i) the Premises, including, without limitation, the operation of the Premises as a Uni-Mart Facility and/or the value of the Premises or (ii) Lessee's ability to perform its obligations under this Lease. "Mortgage" means any mortgage or deed of trust and/or assignment of rents and leases, and/or security agreement and fixture filing executed by Lessor for the benefit of a Mortgagee 827545.11 7119/05 -4- with respect to the Premises, as such instruments may be amended, restated and/or supplemented from time to time, and includes, without limitation, the GE Mortgage. "Mortgagee" means General Electric, its successors and assigns and any other 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 Lease. "Partial Taking" has the meaning set forth in Section 21.D. "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 Lease and legally described in Exhibit A attached hereto, all rights, privileges and appurtenances associated therewith, and all buildings, fixtures and other improvements (including, without limitation, gas pumps, canopies and USTs) now or hereafter located on such real estate (whether or not affixed to such real estate). "Regulated Substances" means "petroleum" and "petroleum-based substances" or any similar terms described or defined in any of the Environmental Laws and any applicable federal, state, county or local laws applicable to or regulating USTs. "Release" means any presence, release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials, Regulated Substances or USTs. "Remediation" means any response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Material, Regulated Substances or USTs, any actions to prevent, cure or mitigate any Release, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or any evaluation relating to any Hazardous Materials, Regulated Substances or USTs. "State" means the state in which the Premises are located. "Taking" has the meaning set forth in Section 21.A. "Temporary Taking" has the meaning set forth in Section 21.C. "Third Party Leases" means the leases for certain portions of the Premises set forth on Exhibit B, attached hereto, and any replacement or renewal leases for the space leased pursuant to the leases listed on Exhibit B. $27545.It 7119/05 -5- "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. "Total Taking" has the meaning set forth in Section 21.B. "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. "USTs" 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 of Premises In consideration of the rentals and other sums to be paid by Lessee and of the other terms, covenants and conditions on Lessee's part to be kept and performed, Lessor hereby leases to Lessee, and Lessee hereby takes and hires, the Premises. 3. Assignment of Third Party Leases. Lessor hereby assigns, transfers and sets over to Lessee for the Term all right, title and interest of Lessor in and to the Third Party Leases, and Lessee assumes and agrees to perform all obligations of Lessor under such Third Party Leases arising and accruing after the Effective Date and for the balance of the Term. 4. Characterization of Lease. A. Lessor and Lessee intend that: (i) this Lease is a "true lease" and not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Lease are those of a true lease; and (ii) the business relationship created by this Lease and any related documents is solely that of a long-term commercial lease between landlord and tenant and has been entered into by both parties in reliance upon the economic and legal bargains contained herein. B. Lessor and Lessee acknowledge and agree that the Lease Term, including any term extensions provided for in this Lease, is less than the remaining economic life of the Premises. C. Lessee waives any claim or defense based upon the characterization of this Lease as anything other than a true lease. Lessee covenants and agrees that it will not assert that this Lease is anything but a true lease. Lessee stipulates and agrees not to challenge the validity, enforceability or characterization of the lease of the Premises as a true lease and further 923545.11 7119/05 -6- stipulates and agrees that nothing contained in this Lease creates or is intended to create a joint venture, partnership (either de jure or de facto), equitable mortgage, trust, financing device or arrangement, security interest or the like. Lessee shall support the intent of the parties that the lease of the Premises pursuant to this Lease is a true lease and does not create a joint venture, partnership (either de jure or de facto), equitable mortgage, trust, financing device or arrangement, security interest or the like, if, and to the extent that, any challenge occurs. D. Lessee waives any claim or defense based upon the characterization of this Lease as anything other than a lease of the Premises. E. Lessee represents and warrants to Lessor that (i) the Base Annual Rental is the fair market value for the use of the Premises and was agreed to by Lessor and Lessee on that basis, and (ii) the execution, delivery and performance by Lessee of this Lease does not constitute a transfer of all or any part of the Premises. F. The expressions of intent, the waivers, the representations and warranties, the covenants, the agreements and the stipulations set forth in this Section are a material inducement to Lessor entering into this Lease. 5. Lease Term and Lease Year. A. The Lease Term for the Premises commences as of the Effective Date and shall expire on (a) the day immediately preceding the twentieth (20'') anniversary of the Effective Date, if the Effective Date is the first day of a month or (b) the last day of the calendar month in which falls the 20°i anniversary of the Effective Date, if the Effective Date is a day other than the first day of a month, unless terminated sooner as provided in this Lease. The time period during which this Lease shall actually be in effect is referred to herein .as the "Term" or "Lease Term." Lessor shall have the option (the "Lessor Extension Option"), on one occasion, any time during the first five (5) Lease Years, to extend the Lease Term by any period desired by Lessor up to but not exceeding five (5) years (the "Lessor Extension Period"). In the event that Lessor desires to exercise the Lessor Extension Option, Lessor shall give Lessee written notice thereof prior to the expiration of the fifth (5 h) Lease Year, specifying the length of the Lessor Extension Period. B. The First "Lease 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 Lease 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 Lease Year. 6. Rental and Other Payments. A. If the Effective Date is a date other than the first day of the month, Lessee shall pay Lessor on the Effective Date the Base Monthly Rental prorated on the basis of the ratio that the number of days from the Effective Date through the last day of the month containing the Effective Date bears to the number of days in such month. Therefore, on or before the first day of $23545.11 7119/05 ?7? each calendar month during the Lease Term, Lessee shall pay Lessor in advance the Base Monthly Rental. B. All sums of money required to be paid by Lessee under this Lease which are not specifically referred to as rent ("Additional Rental") shall be considered rent although not specifically designated as such. Lessor shall have the same remedies for nonpayment of Additional Rental as those provided herein for the nonpayment of Base Annual Rental. 7. Representations and Warranties of Lessor. The representations and warranties of Lessor contained in this Section are being made to induce Lessee to enter into this Lease and Lessee has relied and will continue to rely upon such representations and warranties. Lessor represents and warrants to Lessee as follows: A. Organization, Authority and Status of Lessor. (i) Lessor has been duly organized and is validly existing and in good standing under the laws of the State of Pennsylvania. All necessary corporate action has been taken to authorize the execution, delivery and performance by Lessor of this Lease and the other documents, instruments and agreements provided for herein. (ii) The person who has executed this Lease on behalf of Lessor is duly authorized so to do. B. Enforceability. This Lease constitutes the legal, valid and binding obligation of Lessor, enforceable against Lessor in accordance with its terms. C. Litigation. There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving Lessor before any arbitrator or Governmental Authority which might reasonably result in any material adverse change in the contemplated business, condition, worth or operations of Lessor, or the Premises. D. Absence of Breaches or Defaults. The authorization, execution, delivery and performance of this Lease and the documents, instruments and agreements provided for herein will not result in any breach of or default under any other document, instrument or agreement to which Lessor is a party or by which Lessor or any of the property of Lessor is subject or bound. Without limitation, Lessor has obtained all necessary consents from General Electric to enter into and perform this Lease. 8. Representations and Warranties of Lessee. The representations and warranties of Lessee contained in this Section are being made to induce Lessor to enter into this Lease and Lessor has relied, and will continue to rely, upon such representations and warranties. Lessee represents and warrants to Lessor as follows: A. Organization, Authority and Status of Lessee. (i) Lessee has been duly organized or formed, is validly existing and in good standing under the laws of the State of Pennsylvania and is 823545.11 7/19/05 p -O- qualified to do business in the State. All necessary corporate action has been taken to authorize the execution, delivery and performance by Lessee of this Lease and of the other documents, instruments and agreements provided for herein. Lessee is not a "foreign corporation", "foreign partnership", "foreign trust" or "foreign estate", as those terms are defined in the Internal Revenue Code and the regulations promulgated thereunder. Lessee's United States tax identification number is correctly set forth on the signature page of this Lease. (ii) Lessee's Tax Identification Number is 71-0965149 (iii) The persons who have executed this Lease on behalf of Lessee are duly authorized to do so. B. Enforceability. This Lease constitutes the legal, valid and binding obligation of Lessee, enforceable against Lessee in accordance with its terms. C. Litigation. There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving Lessee before any arbitrator or Governmental Authority which might reasonably result in any material adverse change in the contemplated business, condition, worth or operations of Lessee, or the Premises. D. Absence of Breaches or Defaults. The authorization, execution, delivery and performance of this Lease and the documents, instruments and agreements provided for herein will not result in any breach of or default under any other document, instrument or agreement to which Lessee is a party or by which Lessee or any of the property of Lessee is subject or bound. E. Licenses and Permits. Lessee has obtained all required licenses and permits, both governmental and private, to use and operate the Premises as a Uni-Mart Facility, except to the extent the failure to have such licenses and permits will not have a Material Adverse Effect. F. Financial Condition; Information Provided to Lessor. The financial statements, all financial data and all other documents and information heretofore delivered to Lessor by or with respect to Lessee and/or the Premises in connection with this Lease and/or relating to Lessee and/or the Premises are true, correct and complete in all material respects, and there have been no amendments to such financial statements, financial data and other documents and information since the date such financial statements, financial data, documents and other information were prepared or delivered to Lessor, and no material adverse change has occurred to any such financial statements, financial data, documents and other information not disclosed in writing to Lessor. 9. Rentals To Be Net to Lessor. The Base Annual Rental payable hereunder shall be net to Lessor, so that this Lease shall yield to Lessor the rentals specified during the Lease Term and that all costs, expenses and obligations of every kind and nature whatsoever relating to the Premises shall be performed and paid by Lessee. $27545.11 7119105 -9- 10. Taxes and Assessments. Lessee shall pay, prior to the earlier of delinquency or the accrual of interest on the unpaid balance, all taxes and assessments of every type or nature assessed against or imposed upon the Premises during the Lease Term which affect in any manner the net return realized by Lessor under this Lease, including, without limitation, the following: A. All taxes and assessments upon the Premises or any part thereof and upon any personal property, trade fixtures and improvements located on the Premises, whether belonging to Lessor or Lessee, or any tax or charge levied in lieu of such taxes and assessments; B. All taxes, charges, license fees and or similar fees imposed by reason of the use of the Premises by Lessee; and C. All excise, transaction, privilege, license, sales, use and other taxes upon the rental or other payments hereunder, the leasehold estate of either party or the activities of either party pursuant to this Lease. D. All taxing authorities shall be instructed to send all tax and assessment invoices to Lessor. After recording the information on such invoices, Lessor shall forward such invoices to Lessee for payment. Within 30 days after each tax and assessment payment is required by this Section to be paid, Lessee shall provide Lessor with evidence satisfactory to Lessor that such payment was made in a timely fashion. Lessee may, at its own expense, contest or cause to be contested (in the case of any item involving more than $10,000.00, after prior written notice to Lessor), by appropriate legal proceedings conducted in good faith and with due diligence, the amount or validity or application, in whole or in part, of any item specified in the foregoing Subsection A or lien therefor, provided that (i) such proceeding shall suspend the collection thereof from the Premises or any interest therein, (ii) neither the Premises nor any interest therein would be in any danger of being sold, forfeited or lost by reason of such proceedings, (iii) no Event of Default has occurred, (iv) Lessee shall have deposited with Lessor adequate reserves for the payment of the taxes, together with all interest and penalties thereon, unless paid in full under protest and (v) Lessee shall have furnished the security as may be required in the proceeding or as may be required by Lessor to insure payment of any contested taxes. It. Utilities. Lessee shall contract, in its own name, for and pay when due all charges for the connection and use of water, gas, electricity, telephone, garbage collection, sewer use and other utility services supplied to the Premises during the Lease Term. Under no circumstances shall Lessor be responsible for any interruption of any utility service. 12. Insurance. Throughout the Lease Term, Lessee shall maintain with respect to the Premises, at its sole expense, the following types and amounts of insurance (which may be included under a blanket insurance policy if all the other terms hereof are satisfied), in addition to such other insurance as Lessor may reasonably require from time to time: A. 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 827545.11 7/19ro5 -10- 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 Lessor 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, Lessee may elect to self insure such items, provided that Lessee shall at all times provide the remaining coverages set forth in this Section 12 with third party insurers complying with the provisions of this Section 12. B. Comprehensive general liability and property damage insurance, including a products liability clause, covering Lessor, Mortgagee and Lessee against bodily injury liability, property damage liability and automobile bodily injury and property damage 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 Lessor, Mortgagee and Lessee 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 Lessee'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 Lessee, Lessor 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 Lessor may reasonably require from time to time, and shall be of form and substance satisfactory to Lessor. C. 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. D. 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 Lessor may from time to time require and such other insurance as may be necessary to comply with applicable laws. E. Such other insurance with respect to the Premises and in such amounts as Lessor 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. All insurance policies shall: (i) Be in form reasonably acceptable to Lessor; (ii) Be issued by a company or companies authorized to engage in the business of issuing such policies in the State and reasonably acceptable to Lessor; e23H5.11 7II9MS -11- (iii) Provide for a waiver of subrogation by the insurer as to claims against Lessor, its employees and agents and provide that such insurance cannot be unreasonably cancelled, invalidated or suspended on account of the conduct of Lessee, its officers, directors, employees or agents; (iv) Provide that any "no other insurance" clause in the insurance policy shall exclude any policies of insurance maintained by Lessor and that the insurance policy shall not be brought into contribution with insurance maintained by Lessor; (v) Contain a standard without contribution mortgage clause endorsement in favor of any lender designated by Lessor or Mortgagee; (vi) Provide that the policy of insurance shall not be terminated, cancelled or substantially modified without at least thirty (30) days' prior written notice to Lessor, Mortgagee and to any lender covered by any standard mortgage clause endorsement; (vii) Provide that the insurer shall not have the option to restore the applicable Premises if Lessor elects to terminate this Lease in accordance with the terms hereof; (viii) Be issued by insurance companies licensed to do business in the State and which are rated A:VI or better by Best's Insurance Guide or are otherwise approved by Lessor; and (ix) Provide that the insurer shall not deny a claim because of the negligence of Lessee, anyone acting for Lessee 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 Lessee for its acts or omissions as provided in this Lease. All insurance policies (with the exception of worker's compensation insurance to the extent not available under statutory law) shall designate Lessor and Mortgagee as additional insureds as their interests may appear and shall be payable as set forth in Section 21 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 Lessor or Mortgagee, shall serve as excess coverage. Lessee shall procure policies for all insurance for periods of not less than one year and shall provide to Lessor and Mortgagee certificates of insurance or, upon Lessor's request, duplicate originals of insurance policies evidencing that insurance satisfying the requirements of this Lease is in effect at all times. If requested by Lessor (but not more often than once in any two year period), Lessee shall have the full insurable replacement cost of the improvements determined by an MAI licensed appraiser satisfactory to Lessor, and Lessee shall deliver such determination to Lessor. Alternatively, Lessor may require that inflation guard coverage be provided. 823545.11 7/19/05 -12- 13. Tax and Insurance Impound. Upon the occurrence of an Event of Default, Lessor may require Lessee to pay to Lessor sums which will provide an impound account (which shall not be deemed a trust fund) for paying up to the next one year of taxes, assessments and/or insurance premiums for the Premises. Upon such requirement, Lessor will estimate the amounts needed for such purposes and will notify Lessee to pay the same to Lessor in equal monthly installments, as nearly as practicable, in addition to all other sums due under this Lease. Should additional funds be required at any time, Lessee shall pay the same to Lessor on demand. Lessee shall advise Lessor of all taxes and insurance bills which are due and shall cooperate fully with Lessor in assuring that the same are paid. Lessor may deposit all impounded funds in accounts insured by any federal or state agency and may commingle such funds with other funds and accounts of Lessor. Interest or other gains from such funds, if any, shall be the sole property of Lessor. In the event of any default by Lessee, Lessor may apply all impounded funds against any sums due from Lessee to Lessor. Lessor shall give to Lessee an annual accounting showing all credits and debits to and from such impounded funds received from Lessee. 14. Payment of Rental and Other Sums. All rental and other sums which Lessee is required to pay hereunder shall be the unconditional obligation of Lessee and shall be payable in full when due without any setoff, abatement, deferment, deduction or counterclaim whatsoever. Upon execution of this Lease, Lessee shall establish arrangements whereby payments of the Base Monthly Rental, any Additional Rental and impound payments, if any, are transferred by wire or other means directly from Lessee's bank account to such account as Lessor may designate; provided, however, upon notice from Mortgagee to Lessee and Lessor delivered in the manner set forth in Section 27, Lessee shall deliver all payments of Base Monthly Rental as specified in such notice from Mortgagee. Any delinquent payment (that is, any payment not made within five calendar days after the date when due) shall, in addition to any other remedy of Lessor, incur a late charge of 10% (which late charge is intended to compensate Lessor for the cost of handling and processing such delinquent payment and should not be considered interest) and bear interest at the Default Rate, such interest to be computed from and including the date such payment was due through and including the date of the payment; provided, however, in no event shall Lessee be obligated to pay a sum of late charge and interest higher than the maximum legal rate then in effect. 15. Use. The Premises shall be used solely for the operation of a Uni-Mart Facility and for no other purpose. Except as set forth below, and except during periods when the Premises is untenantable by reason of fire or other casualty or condemnation (provided, however, during all such periods while the Premises is untenantable, Lessee shall strictly comply with the terms and conditions of this Lease), Lessee shall at all times during the Lease Term occupy the Premises and shall diligently operate its business on the Premises. Lessee 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 Lease Term. If Lessee does discontinue operation at the Premises as permitted by this Section, Lessee shall (i) give written notice to Lessor and Mortgagee sixty (60) days prior to ceasing operation (ii) give written notice to Lessor and Mortgagee within 10 days after Lessee 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 Lessee's business operations or other substituted use approved by Lessor as contemplated below. Notwithstanding anything herein to the contrary, 923545.11 7/19/03 -13- Lessee shall pay the Base Monthly Rental on the first day of each month during any period in which Lessee discontinues operation. Lessee shall not, by itself or through any assignment, sublease or other type of transfer, convert the Premises to an alternative use during the Lease Term without Lessor's consent, which consent shall not be unreasonably withheld. Lessor may consider any or all of the following in determining whether to grant its consent, without being deemed to be unreasonable: (i) whether the rental paid to Lessor would be equal to or greater than the anticipated rental assuming continued existing use, (ii) whether the proposed rental to be paid to Lessor is reasonable considering the converted use of the Premises and the customary rental prevailing in the community for such use, (iii) whether the converted use will be consistent with the highest and best use of the Premises, and (iv) whether the converted use will increase Lessor's risks or decrease the value of the Premises. 16. Compliance With Laws, Restrictions, Covenants and Encumbrances. A. Lessee's use and occupation of the Premises, and the condition thereof, shall, at Lessee'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 each case, as amended, and any judicial or administrative interpretation thereof, including any judicial order, consent, decree or judgment applicable to Lessee (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. B. Lessee 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 Lessee shall pay for such increase. C. Without limiting the generality of the other provisions of this Section, Lessee 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. Lessee 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 Lessee's failure to comply with its obligations under this Section. D. Lessee represents and warrants to Lessor as follows: (i) The Lessee is not in violation of or subject to any existing, pending or threatened investigation or inquiry by any Governmental Authority or to any remedial obligations under any Environmental Laws. If any such investigation or inquiry is subsequently initiated respecting Lessee or the Premises, Lessee will promptly notify Lessor. $27545.11 7/OW -14- (ii) Lessee has not obtained and is not required to obtain any permits, licenses or similar authorizations to construct, occupy, operate or use any buildings, improvements, fixtures forming a part of the Premises by reason of any Environmental Laws. E. Lessee covenants to Lessor during the Lease Term that: (i) all uses and operations on or of the Premises, whether by Lessee 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) Lessee 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 Lessee or any other person or entity (the "Environmental Liens"); (v) Lessee 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) Lessee 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 Lessor (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 Lessor the reports and other results thereof, and Lessor 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, Lessee shall, at its sole cost and expense, comply with all reasonable written requests of Lessor 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) Lessee 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 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) Lessee shall immediately notify Lessor 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 Lessee 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. F. Lessor, Mortgagee and any other person or entity designated by Lessor, 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 821545.11 7/19A5 _15- limitation, in connection with the exercise of any remedies or rights set forth in this Lease 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 Lessor's sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Lessee shall cooperate with and provide access to Lessor, Mortgagee and any other person or entity designated by Lessor; provided, however, the foregoing shall take reasonable steps so as to not unreasonably interfere with Lessee's business operations. Any such assessment or investigation shall be at Lessee's sole cost and expense. G. Except as otherwise provided in the Environmental Indemnity Agreement, Lessee 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 Lessor'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 Lessee, any person or entity affiliated with Lessee or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, 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 Lessee, any person or entity affiliated with Lessee 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 Lessee, any person or entity affiliated with Lessee 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 Lessee or any other tenant, subtenant or users of the Premises in arranging for disposal or 627545.11 7119/05 -16- treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials, Regulated Substances or USTs owned or possessed by such Lessee 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 Lessee 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 Lessee 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. H. In addition to the other requirements of this Section, Lessee shall, at all times throughout the Lease Term, comply with all Applicable Regulations. 1. In the event of a conflict between the provisions of the Environmental Indemnity Agreement and this Lease, the Environmental Indemnity Agreement shall prevail. J. The obligations and rights and remedies of Lessor and Lessee set forth in this Section shall survive the termination, expiration and/or release of this Lease. 17. Condition of Premises; Maintenance. Lessee has inspected, or had the opportunity to inspect, the Premises and hereby accepts the Premises "AS IS" and "WHERE IS" with no representation or warranty of Lessor as to the condition thereof. The Premises shall be kept in good, clean, sanitary and working condition; and Lessee shall at all times at its own expense, maintain, repair and replace, as necessary, the Premises, whether or not the Premises were in such condition on the Effective Date. 18. Waste; Alterations and Improvements. Lessee shall not commit actual or constructive waste upon the Premises. During the Lease Term, Lessee shall not alter the exterior, structural, plumbing or electrical elements of the Premises in any manner without the consent of Lessor, which consent shall not be unreasonably withheld or conditioned; provided, however, Lessee may undertake nonstructural alterations to the Premises costing less than $25,000.00 without Lessor's consent. If Lessor's consent is required hereunder and Lessor consents to the making of any such alterations, the same shall be made by Lessee at Lessee's sole expense by a licensed contractor and according to plans and specifications approved by Lessor and subject to such other conditions as Lessor shall require. Any work at any time commenced by Lessee 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 Lease. Upon completion of any alterations, Lessee shall promptly provide Lessor 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 623 545.11 7119ro5 -17- 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 Lessor. Lessee 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 Lessor, and Lessee shall execute and deliver to Lessor such instruments as Lessor may require to evidence the ownership by Lessor of such addition or alteration. 19. Indemnification. Lessee 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 Lessee'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 Lessee, its officers, employees, agents or other persons. It is expressly understood and agreed that Lessee's obligations under this Section shall survive the expiration or earlier termination of this Lease for any reason. 20. Quiet Enjoyment. So long as Lessee shall pay the rental and other sums herein provided and shall keep and perform all of the terms, covenants and conditions on its part herein contained, Lessee shall have the right to the peaceful and quiet occupancy of the Premises, subject to the terms of this Lease. Lessor makes no warranty respecting action by any other party. 21. Condemnation or Destruction. A. In case of a taking of all or any part of the Premises or the commencement of any proceedings or negotiations which might result in a taking for any public or quasi-public purpose by any lawful power or authority by exercise of the right of condemnation or eminent domain or by agreement between Lessor, Lessee and those authorized to exercise such right ("Taking"), Lessee will promptly give written notice thereof to Lessor, generally describing the nature and extent of such Taking and including copies of any documents or notices received in connection therewith. B. In case of a Taking of the whole of the Premises, other than for temporary use ("Total Taking"), the obligations of Lessee with respect to the Premises shall terminate as of the date of the Total Taking. Lessee's obligations to Lessor which accrue prior to the date of such Total Taking shall survive the termination of this Lease with respect to the Premises. A Total Taking shall include a taking of substantially all of the Premises if, in the Lessor's reasonable judgment, the remainder of the Premises is not usable and cannot be made usable for the purposes provided herein. Lessor shall be entitled to receive the entire award or payment in connection with any taking of the Premises without deduction for any estate vested in Lessee by this Lease. Lessee hereby expressly assigns to Lessor all of its right, title and interest in and to every such award or payment and agrees that Lessee shall not be entitled to any award or Payment for the value of Lessee's leasehold interest in this Lease. Lessee shall be entitled to claim and receive any award or payment from the condemning authority expressly granted for the interruption of its business and moving expenses, but only if such claim or award does not 827515.11 7/19/05 -18- adversely affect or interfere with the prosecution of Lessor's claim for the Taking. Lessee shall promptly send Lessor copies of all correspondence and pleadings relating to any such claim. C. In case of a temporary use of all or any part of the Premises by a Taking ("Temporary Taking"), this Lease shall remain in full force and effect without any reduction of Base Annual Rental, Additional Rental or any other sum payable hereunder. Except as provided below, Lessee shall be entitled to the entire award for a Temporary Taking, whether paid by damages, rent or otherwise, unless the period of occupation and use by the condemning authorities shall extend beyond the date of expiration of this Lease, in which case the award made for such Taking shall be apportioned between Lessor and Lessee as of the date of such expiration. At the termination of any such Temporary Taking, Lessee will, at its own cost and expense and pursuant to the terms of Section 18 above, promptly commence and complete the restoration of the Premises; provided, however, Lessee shall not be required to restore the Premises if the Lease Term shall expire prior to, or within one year after, the date of termination of the Temporary Taking, and in such event Lessor shall be entitled to recover all damages and awards arising out of the failure of the condemning authority to repair and restore the Premises at the expiration of such Temporary Taking. D. In the event of a Taking of less than all of the Premises which is not a Total Taking and which is for other than a temporary use ("Partial Taking"), then this Lease shall continue in full force and effect on the following terms: (i) the Premises shall be reduced to exclude the portion which is the subject of the Partial Taking, (ii) all Base Annual Rental, Additional Rental and other sums and obligations due under this Lease shall continue unabated, and (ii) Lessee shall promptly commence and diligently prosecute restoration of the Premises to the same condition, as nearly as practicable, as prior to such partial condemnation. Lessor shall promptly make available in installments as restoration progresses an amount up to but not exceeding the amount of any award or compensation received by Lessor, upon request of Lessee accompanied by evidence reasonably satisfactory to Lessor that such amount has been paid or is due and payable and is properly a part of such costs and that Lessee has complied with the terms of Section 18 above in connection with the restoration. Lessor shall be entitled to keep any portion of such award, compensation or damages which may be in excess of the cost of restoration, and Lessee shall bear all additional costs, fees and expenses of such restoration in excess of the amount of any such award, compensation or damages. E. Notwithstanding the foregoing, if at the time of any Taking or at any time thereafter Lessee shall be in default under this Lease and such default shall be continuing, Lessor is hereby authorized and empowered but shall not be obligated, in the name and on behalf of Lessee and otherwise, to file and prosecute Lessee's claim, if any, for an award on account of any Taking and to collect such award and apply the same, after deducting all costs, fees and expenses incident to the collection thereof, to the curing of such default and any other then existing default under this Lease. F. In the event of damage or destruction to all or any part of the Premises, all awards, compensation or damages shall be paid to Lessor, and (i) all Base Annual Rental, Additional Rental and other sums and obligations due under this Lease shall continue unabated, and (ii) Lessee shall promptly commence and diligently prosecute restoration of the Premises to the same condition, as nearly as practicable, as prior to such damage or destruction. Lessor shall 823545 1 17I19A5 -19- promptly make available in installments as restoration progresses an amount up to but not exceeding the amount of any award, compensation or damages received by Lessor, upon request of Lessee accompanied by evidence reasonably satisfactory to Lessor that such amount has been paid or is due and payable and is properly a part of such costs and that Lessee has complied with the terms of Section 18 above in connection with the restoration. Lessor shall be entitled to keep any portion of such award, compensation or damages which may be in excess of the cost of restoration, and Lessee shall bear all additional costs, fees and expenses of such restoration in excess of the amount of any such award, compensation or damages. G. Notwithstanding the foregoing, nothing in this Section 21 shall be construed as limiting or otherwise adversely affecting the representations, warranties, covenants and characterizations set forth in Lease, including, without limitation, those provisions set forth in Section 4 of this Lease. 22. Inspection. Lessor and its authorized representatives shall have the right, upon giving reasonable notice, to enter the Premises or any part thereof and inspect the same and make photographic or other evidence concerning Lessee's compliance with the terms of this Lease. Lessee hereby waives any claim for damages for any injury or inconvenience to or interference with Lessee's business, any loss of occupancy or quiet enjoyment of the Premises and any other loss occasioned by such entry. Lessee shall keep and maintain at Lessee's chief executive office full, complete and appropriate books of account and records of Lessee's business relating to the Premises in accordance with generally accepted accounting principles consistently applied. The books and records for the Premises shall at all times be open for inspection by Lessor or Mortgagee, their auditors or other authorized representatives. 23. Default, Remedies and Measure of Damages. A. Each of the following shall be an event of default under this Lease (each, an "Event of Default"): (i) If any representation or warranty of Lessee set forth in this Lease is false in any respect which falsity would have a Material Adverse Effect, or if Lessee renders any statement or account which is false in any material respect; (ii) If any rent or other monetary sum due under this Lease is not paid within five days from the date when due; provided, however, notwithstanding the occurrence of such an Event of Default, Lessor shall not be entitled to exercise its remedies set forth below unless and until Lessor shall have given Lessee notice thereof and a period of five days from the delivery of such notice shall have elapsed without such Event of Default being cured; (iii) If Lessee fails to pay, prior to delinquency, any taxes, assessments or other charges the failure of which to pay will result in the imposition of a lien against the Premises pursuant to Applicable Regulations; (iv) If Lessee becomes insolvent within the meaning of the Code, files or notifies Lessor that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, 127545.11 7/19105 -20- winding up or adjustment of debts (collectively, hereinafter, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due; (v) If Lessee vacates or abandons the Premises, except as permitted by this Lease; (vi) If Lessee fails to observe or perform any of the other covenants, conditions, or obligations of this Lease; provided, however, if any such failure does not involve the payment of any monetary sum, does not place any rights or Premises of Lessor in immediate jeopardy, and is within the reasonable power of Lessee to promptly cure after receipt of notice thereof, all as determined by Lessor in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee notice thereof and a period of 30 days shall have elapsed, during which period Lessee may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as determined by Lessor in its reasonable discretion, and Lessee is diligently pursuing a cure of such failure, then Lessee shall have a reasonable period to cure such failure beyond such 30-day period, which shall in no event exceed 90 days after receiving notice of the failure from Lessor. If Lessee shall fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required; (vii) If a final, nonappealable judgment is rendered by a court against Lessee which has a Material Adverse Effect and is not discharged or provision made for such discharge within 60 days from the date of entry thereof; (viii) If a default on the part of Lessee shall occur under any loan agreement, contract or other agreement pursuant to which Lessee has granted to a third party a security interest in any property of Lessee located at the Premises or used in connection with the operation of Lessee's business at the Premises; or (ix) If a default on the part of Lessee or any Affiliate of Lessee shall occur under any lease or sublease pursuant to which such party leases or subleases any other property from Lessor or any Affiliate of Lessor, unless (a) the Premises and such other property shall be subject to mortgages or ground leases held by different mortgagees or ground lessors, and (b) in such event, either Lessor or Mortgagee shall, at their respective options, declare by written notice to the other and to Lessee that such occurrence shall not constitute an Event of Default hereunder. B. 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 A above or such other notice as may be required by statute and cannot be waived by Lessee (all other notices being hereby waived), Lessor shall be entitled to exercise, at its option, $23545.117/19/05 -21- concurrently, successively, or-in any combination, all remedies available at law or in equity, including without limitation any one or more of the following: (i) To terminate this Lease, whereupon Lessee's right to possession of the Premises shall cease and this Lease, except as to Lessee's liability, shall be terminated. (ii) To reenter and take possession of the Premises, any or all personal property or fixtures of Lessee upon the Premises and, to the extent permissible, area development agreements, permits and other rights or privileges of Lessee pertaining to the use and operation of the Premises and to expel Lessee and those claiming under or through Lessee, 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 Lessor hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Lessor to terminate this Lease unless such notice specifically so states. If Lessee shall, after default, voluntarily give up possession of the Premises to Lessor, deliver to Lessor or its agents the keys to the Premises, or both, such actions shall be deemed to be in compliance with Lessor's rights and the acceptance thereof by Lessor or its agents shall not be deemed to constitute a termination of this Lease. Lessor reserves the right following any reentry and/or reletting to exercise its right to terminate this Lease by giving Lessee written notice thereof, in which event this Lease will terminate as specified in said notice. (iii) To seize all personal property and fixtures of Lessee upon the Premises which Lessee owns or in which it has an interest, in which Lessor shall have a landlord's lien and/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 Lessee's sole expense, without becoming liable for any loss or damage resulting therefrom and without resorting to legal or judicial process, procedure or action. (iv) To bring an action against Lessee for any damages sustained by Lessor or any equitable relief available to Lessor. (v) To relet the Premises or any part thereof for such term or terms (including a term which extends beyond the original Lease Term), at such rentals and upon such other terms as Lessor, in its sole discretion, may determine, with all proceeds received from such reletting being applied to the rental and other sums due from Lessee in such order as Lessor, 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. Lessor 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 $23545.11 7/19A5 -22- collect any rent due upon such reletting, and no such refusal or failure shall operate to relieve Lessee of any liability under this Lease or otherwise to affect any such liability. Lessor reserves the right following any such reentry and/or reletting to exercise its right to terminate this Lease by giving Lessee written notice thereof, in which event this Lease will terminate as specified in said notice. (vi) To accelerate and recover from Lessee all rent and other monetary sums due and owing and scheduled to become due and owing under this Lease both before and after the date of such breach for the entire original scheduled Lease Term. (vii) To recover from Lessee 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 Lessor as a result of such breach, regardless of whether or not legal proceedings are actually commenced. (viii) To immediately or at any time thereafter, and with or without notice, at Lessor's sole option but without any obligation to do so, correct such breach or default and charge Lessee all costs and expenses incurred by Lessor therein. Any sum or sums so paid by Lessor, together with interest at the Default Rate, shall be deemed to be additional rent hereunder and shall be immediately due from Lessee to Lessor. Any such acts by Lessor in correcting Lessee's breaches or defaults hereunder shall not be deemed to cure said breaches or defaults or constitute any waiver of Lessor's right to exercise any or all remedies set forth herein. In the event that a Mortgage or any other loan document secured by a Mortgage shall contain a cure period shorter than that set forth in this Lease, then Lessor shall be entitled to exercise the rights contained in this subsection prior to the expiration of such shorter cure period so as to avoid default under such Mortgage or other loan document. (ix) To immediately or at any time thereafter, and with or without notice, except as required herein, set off any money of Lessee held by Lessor under this Lease against any sum owing by Lessee hereunder. (x) To seek any equitable relief available to Lessor, including, without limitation, the right of specific performance. C. In the event that the Premises is located in Pennsylvania, the provisions of this Subsection C 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, 823545.11 7/19105 -23- 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 LEASE, 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 LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL LEASE. 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 LEASE TERM AND/OR DURING OR AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM. 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 LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL LEASE. 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 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, LESSOR 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 LEASE UNDER ANY OF THE TERMS OF THIS LEASE, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS TO RECOVER POSSESSION OF THE PREMISES 823545.11 7/19M -24- 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 LEASE 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. D. All powers and remedies given by this Section to Lessor, 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 Lessor under this Lease, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements of Lessee contained in this Lease, and no delay or omission of Lessor 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 Lessor may be exercised from time to time, and as often as may be deemed expedient, by Lessor, subject at all times to Lessor's right in its sole judgment to discontinue any work commenced by Lessor or change any course of action undertaken by Lessor. 24. Mortgage, Subordination, Nondisturbance and Attornment. A. Lessor's interest in this Lease and/or the Premises shall not be subordinate to any encumbrances placed upon the Premises by or resulting from any act of Lessee, and nothing herein contained shall be construed to require such subordination by Lessor. Lessee shall keep the Premises free from any liens for work performed, materials furnished or obligations incurred by Lessee. EXCEPT AS OTHERWISE CONSENTED TO BY LESSOR PURSUANT TO SECTION 26, NOTICE IS HEREBY GIVEN THAT LESSEE 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 LESSEE'S LEASEHOLD INTEREST THEREIN, AND ANY SUCH PURPORTED TRANSACTION SHALL BE VOID. FURTHERMORE, ANY SUCH PURPORTED TRANSACTION SHALL BE DEEMED A TORTIOUS INTERFERENCE WITH LESSOR'S RELATIONSHIP WITH LESSEE AND LESSOR'S FEE OWNERSHIP OF THE PREMISES. B. 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 Lessor, and Lessee covenants and agrees to execute and deliver, upon demand, such further instruments subordinating this Lease to the lien or interest of any or all such Ground Leases or Mortgages as shall be desired by Lessor or any present or proposed Ground Lessor or Mortgagee. Notwithstanding the foregoing, the subordination of this Lease to any future Ground Lease or Mortgage shall be subject to the execution by such Ground Lessor or Mortgagee of a subordination, nondisturbance and attornment agreement in substantially the form set forth in 92) 545.11 7119105 -25- Exhibit C or such other form as is reasonably acceptable to such future Ground Lessor or Mortgagee. C. If any Mortgagee, receiver or other secured party elects to have this Lease and the interest of Lessee hereunder be superior to any such interest or right and evidences such election by notice given to Lessee, then this Lease and the interest of Lessee hereunder shall be deemed superior to any such Mortgage, whether this Lease 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 Lease 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. D. Although the foregoing provisions shall be self-operative and no future instrument of subordination shall be required, upon request by Lessor, Lessee shall execute and deliver whatever instruments may be required for such purposes, and in the event Lessee fails so to do within 10 days after demand, Lessee does hereby make, constitute and irrevocably appoint Lessor 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. E. In the event that any existing or prospective Ground Lessor or Mortgagee requires a modification or modifications of this Lease, 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 Lessee under this Lease, Lessee agrees that this Lease may be so modified and agrees to execute whatever documents are required therefore and deliver the same to Lessor within ten (10) days following written request by Lessor. In the event Lessee fails to execute and deliver such documents within ten (10) days of written request by Lessor, Lessee does hereby make, constitute and appoint Lessor as Lessee'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. F. 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 Lessor as landlord under this Lease, Lessee shall attorn to such Ground Lessor or Mortgagee or such purchaser or assignee, as the case may be (individually and collectively, a "Successor Lessor"), and recognize the Successor Lessor as Lessor under this Lease, and this Lease shall continue in full force and effect as a direct lease between the Successor Lessor and Lessee, provided that the Successor Lessor shall only be liable for any obligations of the Lessor under this Lease which accrue after the date that such Successor Lessor acquires title. The foregoing provision shall be self operative and effective without the execution of any further instruments. G. Lessee 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 Lessee has been notified of any breach or default by Lessor of any of its obligations under this Lease. If, within thirty (30) days after receipt of written notice from Lessee, Mortgagee, at Mortgagee's sole option, commences to cure a default of Lessor under this Lease that is capable of being cured by Mortgagee, or commences to pursue any other of its remedies under the Mortgage and 121545.11 7/19A5 -26- thereafter diligently pursues such cure to completion, Lessee agrees not to terminate this 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 this Lease. Upon request by Lessor, Lessee shall also provide Lessee's most recent audited financial statements to Lessor or any such Ground Lessor or Mortgagee and certify the continuing accuracy of such financial statements in such manner as Lessor and such Ground Lessor or Mortgagee may request. 25. Estoppel Certificate. A. At any time, and from time to time, Lessee agrees, promptly and in no event later than 10 days after a request from Lessor or any Ground Lessor or Mortgagee of the Premises to execute, acknowledge and deliver to Lessor or any present or proposed Ground Lessor or Mortgagee or purchaser designated by Lessor, any Ground Lessor or Mortgagee of the Premises a certificate in the form supplied by Lessor, certifying: (i) that Lessee has accepted the Premises (or, if Lessee has not done so, that Lessee has not accepted the Premises, and specifying the reasons therefor); (ii) that this Lease is in full force and effect and has not been modified (or if Modified, setting forth all modifications), or, if this Lease is not in full force and effect, the certificate shall so specify the reasons therefor; (iii) the commencement and expiration dates of the Lease Term and the terms of any extension options of Lessee; (iv) the date to which the rentals have been paid under this Lease and the amount thereof then payable; (v) whether there are then any existing defaults by Lessor in the performance of its obligations under this Lease, and, if there are any such defaults, specifying the nature and extent thereof; (vi) that no notice has been received by Lessee of any default under this Lease 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 Lessee; (viii) that neither Lessor 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 Lease; and (ix) any other information reasonably requested by Lessor, or its present or proposed purchaser or Ground Lessor or Mortgagee. B. If Lessee shall fail or refuse to sign a certificate in accordance with the provisions of this Section within 10 days following a request by Lessor, Lessee irrevocably constitutes and appoints Lessor as its attorney-in-fact to execute and deliver the certificate to any such third party, it being stipulated that such power of attorney is coupled with an interest and is irrevocable and binding. 821545A ] 7I19MS -27- 26. Assignment. A. If Ground Lessor or Mortgagee shall succeed to the rights of Lessor as landlord under this Lease, 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 Lessor, shall have the right to sell or convey the Premises or to assign its right, title and interest as Lessor under this Lease in whole, but not in part. In the event of any such sale or assignment other than a security assignment, Lessee shall attorn to such purchaser or assignee and Lessor shall be relieved, from and after the date of such transfer or conveyance, of liability for the performance of any obligation of Lessor contained herein, except for obligations or liabilities accrued prior to such assignment or sale (provided, however, nothing in this Section 26 shall impose liability on Ground Lessor or Mortgagee or such purchaser or assignee, as Lessor, for the obligations of Lessor accruing under this Lease prior to the time Ground Lessor or Mortgagee or such purchaser or assignee, as the case may be, succeeds to Lessor's rights as Lessor under this Lease). B. Lessee acknowledges that Lessor has relied both on the business experience and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Premises in entering into this Lease. Without the prior written consent of Lessor, (i) Lessee shall not assign, transfer, convey, pledge or mortgage this Lease or any interest therein, whether by operation of law or otherwise; (ii) no interest in Lessee shall be assigned, transferred, conveyed, pledged or mortgaged, whether by operation of law or otherwise, including, without limitation, a dissolution of Lessee; and (iii) Lessee shall not sublet all or any part of the Premises. Lessor agrees that it shall not unreasonably withhold or delay its consent to such matters, it being understood that Lessor's consent may be based upon such matters as Lessor may in its reasonable discretion determine, including, without limitation, the experience and creditworthiness of any assignee, the assumption by any assignee of all of Lessee's obligations hereunder by undertakings enforceable by Lessor, the transfer to any assignee of all necessary licenses to continue operating the Premises for the purposes herein provided, receipt of such representations and warranties from any assignee as Lessor may 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 Lease which is approved by Lessor, the assignee shall assume all of the obligations of Lessee under this Lease pursuant to Lessor's standard form of assumption agreement. No such assignment nor any subletting of the Premises shall relieve Lessee of its obligations respecting this Lease. Any assignment, transfer, conveyance, pledge or mortgage in violation of this paragraph shall be voidable at the sole option of Lessor. 27. Notices. All notices, consents, approvals or other instruments required or permitted to be given by either party pursuant to this Lease ("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 821515J 1 7/19M -2°- 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 Lessor: 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 Lessee SAIMA INTERNATIONAL, INC. Attn: Aijaz A. Shaikh, President 2203 Glen Allen Avenue, Apt T-2 Silver Spring, MD 20906 Telephone: Telecopy: 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 Lessor has provided Lessee with contact information for such party. The contact information for General Electric is: GE Capital Franchise Finance Corporation 17207 North Perimeter Drive Scottsdale, AZ 85255 Attn: Collateral Management Telephone: (480) 5854500 Telecopy: (480) 585-2225 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. 28. Holding Over. If Lessee remains in possession of the Premises after the expiration of the term hereof, Lessee, at Lessor's option and within Lessor's sole discretion, may be deemed a tenant on a month-to-month basis and shall continue to pay rentals and other sums in the amounts herein provided, except that the Base Monthly Rental shall be automatically doubled, and to comply with all the terms of this Lease; provided that nothing herein nor the acceptance of rent by Lessor shall be deemed a consent to such holding over. Lessee shall defend, indemnify, protect and hold Lessor harmless from and against any and all claims, losses and liabilities for damages resulting from Lessee's failure to surrender possession upon the expiration of the Lease Term, including, without limitation, any claims made by any succeeding lessee. 29. Lessor's Lien/Security Interest. Lessee agrees that Lessor shall have a landlord's lien, and additionally hereby separately grants to Lessor a first and prior security interest, in, on 823545.11 7119A5 -29- and against all personal property belonging to Lessee 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 Lessee to Lessor under the terms hereof and all other obligations of Lessee to Lessor under this Lease; 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 Lessee 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 Lessee 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. Lessee further agrees to execute and deliver to Lessor from time to time such financing statements and other documents as Lessor 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 Lessor whether hereunder or at law or in equity, in the event of any default of Lessee hereunder, Lessor shall have any and all rights and remedies of Lessor granted a secured party under the Uniform Commercial Code then in effect in the State. If Lessee shall fail for any reason to execute any such financing statement or document within 10 days after Lessor's request therefor, Lessor shall have the right to execute the same as attorney-in-fact of Lessee, coupled with an interest, for, and on behalf, and in the name of Lessee. Lessee covenants to promptly notify Lessor of any changes in Lessee'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 Lessor's consent to such changes). 30. Removal of Lessee's Property. At the expiration of the Lease Term, and if Lessee is not then in breach hereof, Lessee may remove from the Premises all personal property belonging to Lessee. Lessee shall repair any damage caused by such removal and shall leave the Premises broom clean and in good and working condition and repair inside and out. Any property of Lessee left on the Premises on the tenth day following the expiration of the Lease Term shall automatically and immediately become the property of Lessor, provided, however, that this provision shall not relieve Lessee from the obligation to dispose of such property if requested by Lessor. 31. Financial Statements. Within 45 days after the end of each fiscal quarter, and within 120 days after the end of each fiscal year of Lessee, Lessee shall deliver to Lessor (i) complete financial statements of Lessee 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 Lessee (or the Treasurer or other appropriate officer of Lessee). Lessee agrees to reasonably cooperate with Lessor's requests to provide such financial information prior to the end of the applicable period established for delivering such information. Lessee understands that Lessor is relying upon such financial statements and Lessee represents that such reliance is reasonable. In the event that Lessee'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 82354SA 1 WPM -30- set forth. The financial statements delivered to Lessor need not be audited, but Lessee shall deliver to Lessor copies of any audited financial statements of Lessee which may be prepared, as soon as they are available. Lessor shall be permitted to share copies of all Lessee financial statements and other information concerning this Lease with any Mortgagee or prospective purchaser of the Premises. 32. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, acts of God, enemy or hostile governmental action, civil commotion, fire or other casualty beyond the control of the party obligated to perform shall excuse the performance by such party for a period equal to any such prevention, delay or stoppage, except the obligations imposed with regard to rental and other monies to be paid by Lessee pursuant to this Lease. 33. Document Review. In the event Lessee makes any request upon Lessor requiring Lessor or its attorneys to review and/or prepare (or cause to be reviewed and/or prepared) any document or documents in connection with or arising out of or as a result of this Lease, then, except as expressly stated elsewhere herein, Lessee shall reimburse Lessor or its designee promptly upon Lessor's demand therefor a reasonable processing and review fee. 34. Time is of the Essence. Time is of the essence with respect to each and every provision of this Lease in which time is a factor. 35. Consent of Lessor. Unless specified otherwise herein, Lessor's consent to any request of Lessee may be conditioned or withheld in Lessor's sole discretion. Lessor shall have no liability for damages resulting from Lessor's failure to give any consent, approval or instruction reserved to Lessor, Lessee'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 a Mortgage or Ground Lease, Lessee shall be required to obtain such consent or approval from both Lessor and Mortgagee. 36. Waiver and Amendment. No provision of this Lease 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. No acceptance by Lessor of an amount less than the monthly rent and other payments stipulated to be due under this Lease shall be deemed to be other than a payment on account of the earliest such rent or other payments then due or in arrears nor shall any endorsement or statement on any check or letter accompanying any such payment be deemed a waiver of Lessor's right to collect any unpaid amounts or an accord and satisfaction. 37. Successors Bound. Except as otherwise specifically provided herein, the terms, covenants and conditions contained in this Lease shall bind and inure to the benefit of the respective heirs, successors, executors, administrators and assigns of each of the parties hereto. 38. No Merger. The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof, shall not result in a merger of Lessor's and Lessee's estates, and shall, at the option of Lessor, either terminate any or all existing subleases or subtenancies, or operate as an assignment to Lessor of any or all of such subleases or subtenancies. 823545.11 7/19A5 -31- 39. Captions. Captions are used throughout this Lease for convenience of reference only and shall not be considered in any manner in the construction or interpretation hereof. 40. Enforceability. If any part of this Lease shall be held unenforceable by any court of competent jurisdiction, 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. 41. Relationship of the Parties; Interpretation. A. 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 Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any way responsible for the debts, obligations or losses of Lessee. B. This Lease shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument, the relative bargaining powers of the parties or the domicile of any party. Whenever in this Lease any words of obligation or duty are used, such words or expressions shall have the same force and effect as though made in the form of a covenant. 42. Easements. During the Lease Term, Lessor shall have the right to grant utility easements on, over, under and above the Premises without the prior consent of Lessee, provided that such easements will not materially interfere with Lessee's long-term use of the Premises. 43. Bankruptcy. A. As a material inducement to Lessor executing this Lease, Lessee acknowledges and agrees that Lessor is relying upon (i) the financial condition and specific operating experience of Lessee and Lessee's obligation to use the Premises as a Uni-Mart Facility in accordance with standards adopted on a system-wide basis, (ii) Lessee's timely performance of all of its obligations under this Lease notwithstanding the entry of an order for relief under the Code for Lessee, (iii) all defaults under this Lease being cured promptly, (iv) the characterization of this Lease as set forth in Section 4, and (v) this Lease being assumed within 60 days of any order for relief entered under the Code for Lessee, or this Lease being rejected within such 60 day period and the Premises surrendered to Lessor. Accordingly, in consideration of the mutual covenants contained in this Lease and for other good and valuable consideration, Lessee hereby agrees that: (i) All obligations that accrue under this Lease (including the obligation to pay rent), from and after the date that an Action is commenced shall be timely performed exactly as provided in this Lease and any failure to so perform shall be harmful and prejudicial to Lessor; (ii) Any and all obligations under this Lease that become due from and after the date that an Action is commenced and that are not paid as required by this Lease 121545.11 7119MS -32- shall, in the amount of such rents, constitute administrative expense claims allowable under the Code with priority of payment at least equal to that of any other actual and necessary expenses incurred after the commencement of the Action; (iii) Any extension of the time period within which the Lessee may assume or reject this Lease without an obligation to cause all obligations coming due under this Lease from and after the date that an Action is commenced to be performed as and when required under this Lease shall be harmful and prejudicial to Lessor; (iv) Any time period designated as the period within which the Lessee must cure all defaults and compensate Lessor for all pecuniary losses which extends beyond the date of assumption of this Lease shall be harmful and prejudicial to Lessor; (v) Any assignment of this Lease must result in all terms and conditions of this Lease being assumed by the assignee without alteration or amendment, and any assignment which results in an amendment or alteration of the terms and conditions of this Lease without the express written consent of Lessor shall be harmful and prejudicial to Lessor; (vi) Any proposed assignment of this Lease to an assignee: (a) that will not use the Premises specifically as a Uni-Mart Facility in accordance with standards adopted on a system-wide basis, or (b) that does not possess a financial condition, operating performance and experience characteristics equal to or better than the financial condition, operating performance and experience of Lessee as of the Effective Date, shall be harmful and prejudicial to Lessor; and (vii) The rejection (or deemed rejection) of this Lease for any reason whatsoever shall constitute cause for immediate relief from the automatic stay provisions of the Code, and Lessee stipulates that such automatic stay shall be lifted immediately and possession of the Premises will be delivered to Lessor immediately without the necessity of any further action by Lessor. (viii) This Lease shall at all times be treated and interpreted in a manner consistent with the specific characterizations set forth in Section 4 of this Lease, and assumption or rejection of this Lease shall be (a) in its entirety and (b) in strict accordance with the specific terms and conditions of this Lease. B. No provision of this Lease shall be deemed a waiver of Lessor's rights or remedies under the Code or applicable law to oppose any assumption and/or assignment of this Lease, to require timely performance of Lessee's obligations under this Lease, or to regain possession of the Premises as a result of the failure of Lessee to comply with the terms and conditions of this Lease or the Code. C. Notwithstanding anything in this Lease to the contrary, all amounts payable by Lessee to or on behalf of Lessor under this Lease, whether or not expressly denominated as such, shall constitute "rent" for the purposes of the Code. 873545.11 7119/05 -33- D. For purposes of this Section addressing the rights and obligations of Lessor and Lessee in the event that an Action is commenced, the term "Lessee" shall include Lessee's successor in bankruptcy, whether a trustee, Lessee as debtor in possession or other responsible person. 44. No Offer. No contractual or other rights shall exist between Lessor and Lessee with respect to the Premises until both have executed and delivered this Lease, notwithstanding that deposits may have been received by Lessor and notwithstanding that Lessor may have delivered to Lessee an unexecuted copy of this Lease. The submission of this Lease to Lessee shall be for examination purposes only, and does not and shall not constitute a reservation of or an option for Lessee to lease or otherwise create any interest on the part of Lessee in the Premises. 45. Other Documents. Each of the parties agrees to sign such other and further documents as may be necessary or appropriate to carry out the intentions expressed in this Lease. 46. Attorneys' Fees. In the event of any judicial or other adversarial proceeding between the parties concerning this Lease, to the extent permitted by law, the prevailing party shall be entitled to recover all of its reasonable attorneys' fees and other costs in addition to any other relief to which it may be entitled. In addition, Lessor shall, upon demand, be entitled to all reasonable attorneys' fees and all other costs incurred in the preparation and service of any notice or demand hereunder, whether or not a legal action is subsequently commenced. References in this Lease to Lessor's reasonable attorneys' fees and/or costs shall mean both the fees and costs of independent counsel retained by Lessor with respect to the matter and the fees and costs of Lessor's in-house counsel incurred in connection with the matter. 47. Entire Agreement. This Lease and any other instruments or agreements referred to herein constitute the entire agreement between the parties with respect to the subject matter hereof, and there are no other representations, warranties or agreements except as herein provided. Without limiting the foregoing, Lessee specifically acknowledges that neither Lessor nor any agent, officer, employee or representative of Lessor has made any representation or warranty regarding the projected level of Lessee's gross sales for the Premises or the projected profitability of the business to be conducted on the Premises. Furthermore, Lessee acknowledges that Lessor did not prepare or assist in the preparation of any of the projected figures used by Lessee in analyzing the economic viability and feasibility of the business to be conducted by Lessee at the Premises. 48. Forum Selection; Jurisdiction; Venue; Choice of Law. For purposes of any action or proceeding arising out of this Lease, the parties hereto expressly submit to the jurisdiction of all federal and state courts located in the State. Lessee consents that it 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, Lessee waives and agrees 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 Lease shall be governed by and construed in accordance with the internal laws of the State, without regard to principles of conflict of law. 82)S45A] 7119105 -34- 49. Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original. 50. Joint and Several Liability. If Lessee consists of more than one individual or entity, each such individual and/or entity shall be jointly and severally liable for all obligations of Lessee under this Lease. 51. Limitation of Lessor's Liability. Lessee shall look solely to Lessor's interest in the Premises for enforcement of any obligation of Lessor under this Lease or under applicable law. No other property or other assets of Lessor shall be subject to levy, execution or other enforcement proceeding for the satisfaction of Lessee's remedies or with respect to this Lease, the relationship of landlord and tenant or Lessee's use and occupancy of the Premises. 52. Termination Document. Upon Lessor's request, Lessee agrees to execute and acknowledge a termination of lease and/or quit claim deed in recordable form with respect to the Premises to be held by Lessor until the expiration or sooner termination of the Lease Term. 53. No Brokerage. Lessor and Lessee represent and warrant to each other that they have had no conversation or negotiations with any broker concerning the leasing of the Premises except Lessor's Broker. Lessor shall be solely responsible for all fees payable to Lessor's Broker. Each of Lessor and Lessee agrees to protect, indemnify, save and keep harmless the other, against and from all liabilities, claims, losses, costs, damages and expenses, including reasonable attorneys' fees, arising out of, resulting from or in connection with their breach of the foregoing warranty and representation. 54. Waiver of Jury Trial and Punitive, Consequential, Special and Indirect Damages. LESSOR AND LESSEE 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 EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LESSOR AND LESSOR, LESSEE'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY LESSEE AGAINST LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY LESSEE OF ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, 323545117/19105 -35- CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. 55. Automatic Teller Machine. Lessor 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 Lessee. Lessor shall be responsible for arranging for the installation of the ATM, at Lessor's cost, and shall be permitted to install necessary utilities and communications cabling. Lessee shall not install or permit the installation of any automatic teller machine other than the ATM. 56. Signage. Lessor 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 Lessee, 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 Lessee'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 Lessee. Lessor shall share with Lessee fifty percent (501/o) of any net income earned by Lessor from time to time in connection with the sale of signage rights in and about the Premises. 57. Telecommunications Antennae. Lessor 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 Lessor, 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 Lessee's operations at the Premises. Lessor shall be responsible for arranging for the installation of the Antennae, at Lessor's cost, and shall be permitted to install necessary utilities and communications cabling. Lessee shall not install or permit the installation of any telecommunications antennae other than the Antennae. 823545.117/19105 -36- IN WITNESS WHEREOF, Lessor and Lessee have entered into this Lease as of the date first above written. LESSOR UNI-MARTS, LLC, a Pennsylvania limited liability company By: ! _ ame: Ales D. 8"" "21 Title: Manager LESSEE SAIMA INTERNATIONAL, INC., a Pennsylvania corporation By: U?? A?? Name Ai az A. Shaikh Title: President 827545.11 7119MS -37- Exhibit A Legal Description - SEE ATTACHED 823545.11 M9/05 A-1 Q?R?N •,cll No. saa PEE-SIMPLE DEED-Typewriter Tbig 311brUturr, Anbe ante d" of March b for yew of ofrr Lord Osee rboaend Nino Hundred ad Seventy-three (1973). 1NP1111PP11 JAY RICHARD MAGEE and VICKI G. MAGEE, his wife, of North Middleton, Cumberland County, Pennsylvania, hereinafter called Grantors A N D HANDY MARKETS, INC.,. a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal place of business at 1302 Slate Hill Road, Camp Hill, Pennsylvania, Grantee, party ?f the second pert, OdUf$6tt4 Tito, for rid pwtiesof the jrtt pert, tar .wd in cowid ..H. of the fun of -------------------One ($1.00)---------------------------- Oollars, Jesvfel money of the United Stater of Awake, well and trnty pW by for raid pwtf of for secowd part to the said Nr[es of for first fart, at tied 691010 tht 11968 ad !limy Of 46s9 prrsinsh, for receipt Wbrreof is brrrby ac4wew1edfd, have frowt9d, bwfaixed. roll, ahrned, exteoled, released, conveyed and c"firwd end by tbnr prnanb do grant, berjein, sett, dire, totrot, rdrar, rears", and eoxPrw onto the tdd party of thr freed part its successors >lim and Mlifnt. All that certain tract of land with the improvements thereon erected, situate in West Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows; BEGINNING at an iron pin on the southern side of Pa. State Highway 641, at line of land of Robert Yinger; thence along the southern side of said State Highway, South 70 degrees 01 minutes 27 seconds East, a distance of 189.33 feet to a point at the edge of said highway; thence continuing along the southern side of said State Highway, South 82 degrees 20 minutes 58 seconds East, a distance of 225.00 feet to an existing post at the edge of said highway at line of land of Merle Myers; thence along land of Merle Myers, South 07 degrees 39 minutes 02 seconds West, a distance of 138.00 feet to an iron pin; thence North 65 degrees 23 minutes 04 seconds West, along land of Charles Nelson, a distance of 440.55 feet to a stake at line of land of Robert Yinger; thence along land of Robert Yinger North 20 degrees 32 minutes 02 seconds East, a distance of 51.50 feet to an iron pin, the place of Beginning. 600K L 25PAu 634 Exhibit B Third Party Leases 127545.11 7119A5 B-1 Exhibit C Form of Estoppel, Subordination, Nondisturbance and Attornment Agreement Recording requested by and when recorded return to: ESTOPPEL, SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT 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 16$01-5690, and ' a _ ("Lender"), whose address is RECITALS A. Landlord and Tenant are parties to a Lease 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 Landlord 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. 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 923545 It 7119/05 C-1 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: 1. 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. 3. Attornrnent. 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 823545.11 7/19N5 C-2 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 attomment, 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. 5. 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 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. 823545.11 7119M5 C-3 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 1. 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 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. 927545.11 7/19105 C-4 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; B. all requirements for the commencement and validity of the Lease have been satisfied; 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. 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 in which the Premises is located (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 in accordance with the laws of the State. 323545.11 7/19MS C-5 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 State College, PA 16801-5690 Telephone: 814-234-6000 Telecopy: 814-234-3277 If to Tenant: Telephone: Telecopy: 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 823545.11 7/19MS C-6 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 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 OtherAgreementx 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: 927545.11 7/19/05 C-7 i By: By: Its: LANDLORD: UNI-MARTS, LLC Its: LENDER: $23 545.11 7/19A5 By: Its: [INSERT ACKNOWLEDGEMENTS] C-8 Exhibit FUEL SUPPLY AGREEMENT THIS AGREEMENT, made this I- day of POC,0?f 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 50 EAST MAIN STREET, RTE 641, PLAINFIELD, PA 17081 (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 607772.9 VIM of the Marketing Premises are repaired or replaced. 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 II-22-02 2 607772 9 7119ros the Termination Notice by the required date, this Agreement shall automatically renew for a 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-o2 3 607772.9 7119M Marketing Premises and shall be promptly received by Buyer. Payment terms for each delivery 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 4 607772.9 7/19/05 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 the same has been initiated by Seller or UNI-MART to enforce any of the provisions of this paragraph 5. Product Quali 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-oz 5 60M19 7/19/OS 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. Socifications• 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 7119105 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 19 hours per day, from 5:00 am - 12:00 pm eastern time, 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 11-22-02 607772.9 VIM Buyer's accounting records, to determine Buyer's compliance with this Agreement, and 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 11-22-02 g 60777.9 7119105 Agreement between Seller and Buyer). Buyer shall be responsible to ensure that the storage 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: Damages 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 11-z2-0z q 607772.9 7/19105 Seller with reasonable opportunity to inspect the motor fuel products and take test samples. Any 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 Majeure. 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 11-22-02 1 0 607772.9 7119/05 any such curtailment or allocation by Seller. 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. Default Termination. Non-Renewal, Notice, Right 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 11-2i-02 607772.9 7/19105 grounds upon which it may be terminated or non-renewed by the Seller. Seller's right to 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 11-22-02 12 607772.9 7119/05 termination or non-renewal shall take effect. (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 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 11-22-02 13 607772.9 7/19106 value of UNI-MART trademarks. Except as otherwise expressly provided herein, at all times, 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 Buyer. 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 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. Severabiliv. 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 11-22-02 14 607772 9 7119/05 the parties, and any breach of any term or condition by either party shall be conclusively deemed to be material and adverse. 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. 11-22-02 15 607772.9 7/19105 UNI-MARTS, LLC BY: o0z D. Sakaltian anager SAIMA INTERNATIONAL, INC. BY: Aijaz A. Shaikh President 11-22-02 16 607772.9 7/19/05 WITNESS: BY: WITNESS: BY: 5.1rM-•+e?wK? . UNI-MARTS, LLC COMMODITY SCHEDULE DATED u t a , 2005 BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC. PRODUCTS: MOTOR FUELS DELIVERY POINT: 50 EAST MAIN STREET, RTE 641, PLAINFIELD, PA 17081 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 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 612,000 gallons per year and a maximum of 710,000 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 109105 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 7119/05 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. By: Its: SAIMA INTERNATIONAL, INC. By: JA G^ ,-- Its: Presiden 607721.6 7119/05 UNI-MARTS, LLC UNI-MARTS, LLC COMMODITY SCHEDULE DATED ?, 2005 BUYER/ENTERPRISE NAME: SAIMA INTERNATIONAL, INC. PRODUCTS: KEROSENE DELIVERY POINT: 50 EAST MAIN STREET, RTE 641, PLAINFIELD, PA 17081 This schedule is attached to and made part of as Fuel Supply Agreement between Buyer and ,2005. Uni-Marts, LLC (the "Seller") datedAKYS? °- 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"). 607889.2 7/19/05 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: JA P tv?-, Its: President 6078392 7119105 Site No.: 04232 Location: 50 East Main Street Route 641 Plainfield PA 17081 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. 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. 6101301 7/19/05 4. The Collateral Deposit shall be held by the Seiler 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 WITNESS WHEREOF, the parties have agreed to the terms of this Collateral Deposit Agreement on this e. day of , 2005. By: Its: SAIMA INTERNATIONAL, INC. By: jA 01,?, J?O?VVJ,- Its: President 6103302 7/ 19/05 UNI-MARTS, LLC F010-1 -IM __7 UnimMart February 21, 2007 Certified Mail-Return Receipt Requested SAIMA International, Inc. 1962 Spring Road Carlisle, PA 17013 Re: Fuel Supply Agreement Initial Term and Incentive Program Uni-Mart #94232, 50 East Main Street, Plainfield PA 17081 Dear Mr. Shaikh: I would like to bring two matters to your attention concerning your above-referenced BP- branded Marketing Premises. First, pursuant to Section 2 of your Fuel Supply Agreement ("FSA") with Uni-Marts, LLC, dated August 02, 2005, the Initial Term of the FSA is for ten (10) years from the later of either the closing date of your purchase of the Marketing Premises or any re- imaging or rebranding of the Marketing Premises during your occupancy. Subject to the provisions of the FSA, this confirms that the ending date of the Initial Term is August 02, 2015, which is ten (10) years from the closing date of your purchase of the Marketing Premises. Second, I have enclosed a check which reflects a $4,086.85 cents-per-gallon (".01 cpg") "incentive" payment for your purchases of BP-branded gasoline beginning with the start of the program October 1, 2005 to September 30, 2006. In consideration of your agreement under the FSA to purchase annual minimum quantities of motor fuels throughout the Initial Term of the FSA, and subject to the terms and conditions set forth in this letter, Uni-Marts shall make the following, annual "incentive" payments ("Incentives") to you: 2007 -.01 cpg; and, 2008 - .01 cpg, and, 2009- .01 cpg Uni-Marts' annual payment of the Incentives to you for each of the above years is subject to the following conditions: (1) The Marketing Premises must remain branded BP and be open for business for the resale of BP-branded gasolines for the entire Initial Term; Uni-Marts, LLC - 477 East Beaver Avenue - State College, PA 16801-5690 - Phone: (814) 234-6000 2/21/2007 Page 2 of 3 Uni-Marts' annual payment of the Incentives to you for each of the above years is subject to the following conditions: (1) The Marketing Premises must remain branded BP and be open for business for the resale of BP-branded gasolines for the entire Initial Term; (2) The Marketing Premises must meet the image programs (i.e., Helios) and appearance standards specified by BP, which may change from time to time; (3) You have a current FSA with Uni-Marts; and, (4) You purchase from Uni-Marts the requisite, annual minimum volumes of motor fuels as set forth in Sections 1 and 3 of your FSA and Section 1 of the Commodity Schedule for motor fuels that is part of the FSA. In addition to the obligations above, you will be required to reimburse Uni-Marts within thirty (30) days of demand for one hundred percent (100%) of the Incentives paid to you (including the enclosed check) if: (1) The Marketing Premises are debranded BP prior to the expiration of the Initial Term for any reason through your own fault or cause; or, (2) During the years specified above for the Incentives payments, the Marketing Premises fail to maintain BP's image programs or appearance standards three (3) or more times through a "secret shopper" or similar program used by BP to enforce its image programs or appearance standards. Further, Uni-Marts' payment of the Incentives is conditioned on the following: (1) You shall pay all income and other tax, if any, associated with the Incentives paid by Uni-Marts. You have the responsibility to consult with your own tax advisor(s) to determine the appropriate characterization of the Incentives payments for tax purposes; (2) To the extent reasonably necessary to observe and verify your compliance with this Incentives program, and in addition to any rights Uni-Marts has under the FSA, you give Uni-Marts permission to enter the Marketing Premises and inspect books, dispenser meters, and other records; 2/21/2007 Page 3 of 3 (3) Uni-Marts can withdraw the Incentives program at any time upon thirty (30) days written notice to you; (4) This Incentives program does not in any way alter, modify or amend the FSA, constitute a waiver of any rights Uni-Marts has under the FSA, or change the nature of the relationship between you and Uni-Marts; (5) BP retains the right to withdraw or terminate the use of its brand and a related mark in your market area at any lime, and Uni-Marts retains its rights under the FSA to substitute brands; (6) To the extent that you did not purchase the requisite minimum volumes of motor fuels for the annual period specified in your FSA that ended any time during 2006, Uni-Marts can seek (notwithstanding the Incentives payment) the underlifting payment set forth in Section 1 to the Commodity Schedule which is part of your FSA; and, (7) Uni-Marts shall make the annual Incentives payment to you within ninety (90) days after the end of each calendar year set forth above. If you have any questions on either the ending date of the Initial Term under your FSA or the Incentives, please telephone Patti Turiano at (814) 234-6000. Please acknowledge below that you have read and understand the above and agree to the terms and conditions set forth above for the Incentives and return a signed copy to Uni- Marts. Very truly yours, 4a i ?vtiJ Uni-Marts, LLC READ, UNDERSTOOD AND AGREED: Signature Date Check Date: Feb/22/2007 Vendor Number: 0000601717 Check No. 00514783 Store Invoice Number 94232 2/21107 Invoice Date Voucher ID Gross Amount Feb/21/2007 00138338 4,086.85 Discount Taken 0.00 Late Char= Pa 0.00 id Amount 4,086.85 Check Number Date Total Gross Amount Total Discounts Total Late Charges Total Paid Amount 00514783 Feb/2212007 4,086.85 0.00 0.00 4,086.85 C> IIyZypEyNS BANK APB .Q 0'" , Uni-Mars _' ' PC'CtSBGH,FA2k$ 6231 477>gI?ST' Date 02/2212007 Pay Amount 4,086.85*** Pay ****FOUR THOUSAND EIGHTY-SIX AIJD 95 f IOQ OOLLAR*' - To The SAIMA INTERNATIONAL. INC Order Of 1%2 SPRING RD CARLISLE. PA 17013 114005 01 78 311' 1:03LLOILSD: 669900997811' Store tl City State/Zip Cade FSA PSA Cpg Incentive Incentive $'s Incentive $'s Incentive S's Incentive S's Start End Incentive Yrs. 1st Receipt Date 1st Payment Znd Receipt Date 2nd Payment 94024 Hummelstown PA 17036 101-3/2005 10/3/2015 0.01 4 VM2006 S 3.138.24 1214/2006 $ 1,706.31 94062 Bloomsburg PA 17815 5/17/2005 5/172015 0.01 4 8/22006 $ 2.132.02 12/4/2006 S 3.149.78 94075 Punxsutawney PA 15767 7/122005 7/122015 0.01 4 8n2006 $ 3,890.85 12/42006 $ 4,230.07 94099 Lewisburg PA 17837 12/162005 12/162015 0.01 4 8n2o06r5 5,439.22 12/42006 $ 9,011.25 94107 Hummelstowo PA 17036 10/32005 10/32015 0.01 4 8nno06 S 2.852.38 12/42006 S 2.990.57 94141 Montoursville PA 17754 10127/2005 10272015 0.01 4 8nn006 S 5_562.08 12/42006 $ 5.380.38 94144 Punxsutawney PA 15767 7/122005 7/122015 0.01 4 8nno06 S 2.808.07 12/42006 S 3.354.55 94151 Williamsport PA 17701 6282005 6282015 0.01 4 8n2006 S 2,709.27 12/42006 S 3.106.64 94229 Lemoyne PA 17043 4/122005 8/122015 0.01 4 8/22006 $ 1,912.48 12/42006 $ 2,071.00 94232 Carlisle PA 17013 822005 8/22015 0.01 4 8/72006 $ 2.084.90 12/42006 S 2.001.95 94248 Carlisle PA 17013 9/272005 9/272015 0.01 4 8/72006 S 2.844.99 12/42006 S 3.018.65 94330 Scranton PA 18505 3292005 8/102015 0.01 4 8/72006 $ 2,520.55 12/42006 S 3,493.96 94905 Carlisle PA 17013 618/2005 6182015 0.01 4 8n/2006 S 2,841.66 12/42006 S 2.885.05 94305 Drums PA 18222 9/202005 9/202015 0.02 3 7242006 $ 14.335.64 $ 55,072.35 Please note: Blue highlight for FSA was changed because the location was a Texaco and branded to BP in August, 2005 for 94330, 94229 was changed because the location was Uni-Mart brand and was branded BP in August, 2005, and the incentive was reduced for 94099 because the program started before he purchased the location. 1n2007 S 11.385.32 $ 57,785.48 $ 14,450.47 .. t "'AMOK' ? w- S 3,983.48 $ 6,014.51 Exhibit J -Site No.: 04232 Location: 50 East Main Street, Route 641 _ Plainfield, PA 17081 County: Cumberland TRADEMARK LICENSE AGREEMENT This Trademark License Agreement ("Agreement") is made and entered into as of the _j_ day of ??, 2005, by and between SAIMA INTERNATIONAL, INC., a Pennsylvania corporation 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 ("UnWarts"). 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. 610315.17119105 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. 610315.17119/05 _1_ 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, 610315.17/19/05 -? 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 7/19/05 ?_ 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. Reoresentations 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 ii. 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. 610315.1 7119103 .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 610315.1 7119105 -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 notes Uni-Marts of such claim in writing. Uni-Marts shall have the 610715.1 7/19/05 _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, 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- 610315.17119/05 -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• By: Its: SAIMA INTERNATIONAL, INC. By: k? (fit V T? Its: Presid t 610715.1 7119105 .9- Exhibit K * 1 • Uni-Marts, LLC Dealer Receivable Store #94232 12/15/10 Description COUNTY/BOROUGH TAX 1/1-12/31/06 PROPERTY INSURANCE-2006 SCHOOL TAX 7/1/06-6/12/07 COUNTY/BOROUGH TAX 1/1-6/12/07 GAS DELIVERY DATED 5/29/07 AMOCO NETWORK FEE-JUN 07 RETURNED EFT FEES 6/5 & 6/7/07 AMOCO CREDIT CARDS & FEES 5/29- 6/2/07 KEGGFEREIS SUBLET RENT-JUN 07 GAS DELIVERY DATED 6/2/07 TRADEMARK FEE-MAY 07 TRADEMARK FEE-JUN 07 FUEL DEPOSIT JUN 07 LATE RENT FEE JUN 07 RENT PENNSBORO TWP SEWER 5/31/07- 6/15/07 GVNA REBATES-1ST QTR 07 AMERIGAS-CREDIT MAGISTERIAL DISTRICT CREDIT WESTERN UNION CREDIT COMMONWEALTH OF PA CREDIT FUEL SHORTFALL 2005-2006 Amount Balance billed 5/17/06 1,069.11 1,069.11 billed 9/13/06 885.00 1,954.11 billed 9/13/06 5,228.06 7,182.17 billed 4/26/07 490.86 7,673.03 13,276.44 20,949.47 125.00 21,074.47 60.00 21,134.47 (6,633.48) 14,500.99 (72.50) 14,428.49 24,971.21 39,399.70 200.00 39,599.70 200.00 39,799.70 (15,000.00) 24,799.70 489.70 25,289.40 4,897.02 30,186.42 billed 9/4/07 299.95 30,486.37 (249.21) 30,237.16 (270.40) 29,966.76 (7.08) 29,959.68 (1.73) 29,957.95 (82.00) 29,875.95 2,518.80 32,394.75 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderso n Sheriff -- Jody S Smith ' M Chief Deput y r- = erg n u: '43 ? ' Richard W Stewart - ` Solicitor OF' -?PIFF 33N Uni-Marts Liquidation Trust vs. Saima International, Inc. Case Number 2011-4910 SHERIFF'S RETURN OF SERVICE 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. SHERIFF COST: $39.00 June 17, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF (c;! CoimtySuite Sheriff, Ieieosoft, Inc. ®aviiD. Buelr Prothonotary Office of the Prothonotary Cum6erfancf County, (Pennsylvania 2�yrkS. Sofionage, ESQ, Solicitor 1�— 9/0 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 0 (Phone 717 240-6195 0 0'ax 717 240-6573