WM0501624_Well Permit Application_20240228

North Carolina Department of Environmental Quality Division of Water Resources
512 North Salisbury Street 1611 Mail Service Center Raleigh, North Carolina 27699-1611
919.707.9000

February 28, 2024 Mr. Anthony Bell Circle K Stores, Incorporated 1100 Situs Court, Suite 100 Raleigh, North Carolina 27605 Sent Via Email Subject: Monitoring Well Construction Permit #WM0501624 Circle K Store #2723781 (UST Incident #48914) 106 East NC Highway 64 (PIN #0718-96-42-8092) Durham, North Carolina 27704 – Durham County Mr. Bell: In accordance with the application received on February 26, 2024, we are forwarding herewith Monitoring Well Construction Permit No. WM0501624 dated February 28, 2024, issued for the construction of a monitoring well system (installation of four wells). Please be aware that some counties have well construction programs, and you may be required to obtain a well construction permit before installation. This Permit will be effective from the date of its issuance and shall be subject to the conditions and limitations as specified therein. Please note the addition of stipulation #3 to the permit enclosed. If you have any questions about this permit, please contact Michael Hall at [phone] or via email at [e-mail]. Sincerely,
Michael Hall, Regional Supervisor
Water Quality Regional Operations Section
Raleigh Regional Office
Division of Water Resources, NCDEQ Enclosure -Permit -Application Package Ec: Maureen Jackson, ATC Associates of North Carolina, P.C. Laserfiche

DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
North Carolina Department of Environmental Quality Division of Water Resources
512 North Salisbury Street 1611 Mail Service Center Raleigh, North Carolina 27699-1611
919.707.9000
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY DIVISION OF WATER RESOURCES PERMIT FOR THE CONSTRUCTION OF A MONITORING WELL
In accordance with the provisions of Article 7, Chapter 87, North Carolina General Statutes, and other applicable Laws,
Rules and Regulations.
PERMISSION IS HEREBY GRANTED TO Circle K Stores, Incorporated FOR THE CONSTRUCTION OF A MONITORING WELL SYSTEM consisting of four wells owned by Circle K Stores, Incorporated, at mailing address 1100 Situs Court, Suite 100, Raleigh, North Carolina 27604. The wells will be located on the property owned by LMOC Legacy, LLC located at 106 East NC Highway 64 (PIN #0718-96-42-8092), Durham, NC 27704. This Permit is issued in accordance with the application received on February 26, 2024, in conformity with specifications and supporting data, all of which are filed with the Department of Environmental Quality and are considered integral parts of this Permit.
This Permit is for well construction only and does not waive any provision or requirement of any other applicable law or
regulation. Construction of any well under this Permit shall be in strict compliance with the North Carolina Well
Construction Regulations and Standards (15A NCAC 02C .0100), and other State and Local Laws and regulations pertaining
to well construction.

If any requirements or limitations specified in this Permit are unacceptable, you have a right to an adjudicatory hearing
upon written request within 30 days of receipt of this Permit. The request must be in the form of a written petition
conforming to Chapter 150B of the North Carolina General Statutes and filed with the Office of Administrative Hearings,
6714 Mail Service Center, Raleigh, North Carolina 27699-6714. Unless such a demand is made, this Permit is final and
binding.
This Permit will be effective for one year from the date of its issuance and shall be subject to other specified conditions,
limitations, or exceptions as follows:
1. Issuance of this Permit does not obligate reimbursement from State trust funds, if these wells are being
installed as part of an investigation for contamination from an underground storage tank or dry cleaner
incident.
2. Issuance of this Permit does not supersede any other agreement, permit, or requirement issued by
another agency.
3. The well(s) shall be located and constructed as shown on the attachments submitted as part of the Permit
application.
4. Each well shall have a Well Contractor Identification Plate in accordance with 15A NCAC 02C .0108(o).
5. Well construction records (GW-1) for each well shall be submitted to the Division of Water Quality’s
Information Processing Unit within 30 days of the well completion.
6. When the well is discontinued or abandoned, it shall be abandoned in accordance with 15A NCAC 02C
.0113 and a well abandonment record (GW-30) shall be submitted to the Division of Water Quality’s
Information Processing Unit within 30 days of the well abandonment.
7. If the well penetrates any water-bearing zone that contains contaminated waters, the upper three feet of
the well shall be grouted within one day after the casing is set or the well abandoned.

____________________________________
Michael Hall, Regional Supervisor
Division of Water Resources
By Authority of the Environmental Management Commission

Permit Number: WM0501624
Permit Issued: February 28, 2024
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
2725 E. Millbrook Road, Suite 121
Raleigh, North Carolina 27604
Tel: [phone]
Fax: [phone]
www.oneatlas.com
N.C. Engineering License No. C-1598

February 26, 2024

Mr. Mike Hall
North Carolina Department of Environmental Quality
Raleigh Regional Office
Division of Water Quality, Aquifer Protection Section
1628 Mail Service Center
Raleigh, North Carolina 27699

RE: Application for Permit to Construct a Monitoring Well System
Circle K Store #2723781
106 East N.C. Highway 64 (PIN #0718-96-42-8092)
Durham, Durham County, North Carolina
NCDEQ Incident No. 48914

Dear Mr. Hall:

On behalf of Circle K Stores Inc., ATC Associates of North Carolina, P.C. (ATC) has been directed by
the NCDEQ-DWM-UST Section to perform assessment activities at the above property. Circle K leases
the property from LMOC Legacy, LLC (a copy of the lease agreement is attached). ATC will be
installing three shallow monitoring wells and one Type III monitoring well on the property as part of the
CSA activities. I have attached the well construction permit application to this cover letter. Drilling is
currently being scheduled.

We greatly appreciate your assistance in this matter. If you have any questions or concerns, please feel
free to contact me at [phone] or via email at [e-mail].

Sincerely,
ATC ASSOCIATES OF NORTH CAROLINA, P.C.

Maureen Jackson, P.G.
Senior Project Manager

cc: Mr. Anthony Bell, Circle K Stores Inc. ([e-mail])
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
FOR OFFICE USE ONLY

PERMIT NO. ISSUED DATE
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY - DIVISION OF WATER RESOURCES
APPLICATION FOR PERMIT TO CONSTRUCT A MONITORING OR RECOVERY WELL SYSTEM
PLEASE TYPE OR PRINT CLEARLY

In accordance with the provisions of Article 7, Chapter 87, General Statutes of North Carolina and regulations pursuant thereto,
application is hereby made for a permit to construct monitoring or recovery wells.

1. Date:

2. County:

3. What type of well are you applying for? (monitoring or recovery):

4. Applicant: Telephone:

Applicant’s Mailing Address:

Applicant’s Email Address (if available):

5. Contact Person (if different than Applicant): Telephone:

Contact Person’s Mailing Address:

Contact Person’s Email Address (if available):

6. Property Owner (if different than Applicant): Telephone:

Property Owner’s Mailing Address:

Property Owner’s Email Address (if available):

7. Property Physical Address (Including PIN Number)
City County Zip Code

8. Reason for Well(s):
(ex: non-discharge permit requirements, suspected contamination, assessment, groundwater contamination, remediation, etc.)

9. Type of facility or site for which the well(s) is(are) needed:
(ex: non-discharge facility, waste disposal site, landfill, UST, etc.)

10. Are there any current water quality permits or incidents associated with this facility or site? If so, list permit and/or in cident no(s).

11. Type of contaminants being monitored or recovered:
(ex: organics, nutrients, heavy metals, etc.)

12. Are there any existing wells associated with the proposed well(s)? If yes, how many?

Existing Monitoring or Recovery Well Construction Permit No(s).:

13. Distance from proposed well(s) to nearest known waste or pollution source (in feet):

14. Are there any water supply wells located less than 500 feet from the proposed well(s)?

If yes, give distance(s):

15. Well Contractor: Certification No.:

Well Contractor Address:

PROPOSED WELL CONSTRUCTION INFORMATION

1. As required by 15A NCAC 02C .0105(f)(7), attach a well construction diagram of each well showing the following:

a. Borehole and well diameter e. Type of casing material and thickness
b. Estimated well depth f. Grout horizons
c. Screen intervals g. Well head completion details
d. Sand/gravel pack intervals
Continued on Reverse
Unknown
Unknown
P.O. Drawer 9 Sanford, North Carolina 27331
LMOC Legacy, LLC
N/A
132 Gurney Road Olin, North Carolina 28660
2579Carolina Soil Investigations, Inc.
N/A
No
Approx. 20 to 60 feet
Yes - 1
petroleum
UST incident #48914
UST
petroleum release assessment for Circle K Store #2723781 (UST incident #48914)
27704DurhamDurham
106 East N.C. Highway 64 (PIN #0718-96-42-8092)
[e-mail]
2725 E. Millbrook Road, Suite 121 Raleigh, North Carolina 27604
[phone]Maureen Jackson
[e-mail]
1100 Situs Court, Suite 100 Raleigh, North Carolina 27605
[phone]Circle K Stores, Inc.
Monitoring
Durham
February 26, 2024
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7

PROPOSED WELL CONSTRUCTION INFORMATION (Continued)

2. Number of wells to be constructed in unconsolidated
material:

3. Number of wells to be constructed in bedrock:

4. Total Number of wells to be constructed:
(add answers from 2 and 3)
5. How will the well(s) be secured?

6. Estimated beginning construction date:

7. Estimated construction completion date:

ADDITIONAL INFORMATION

1. As required by 15A NCAC 02C .0105(f)(5), attach a scaled map of the site showing the locations of the following:

a. All property boundaries, at least one of which is referenced to a minimum of two landmarks such as identified roads,
intersections, streams, or lakes within 500 feet of the proposed well or well system.
b. All existing wells, identified by type of use, within 500 feet of the proposed well or well system.
c. The proposed well or well system.
d. Any test borings within 500 feet of proposed well or well system.
e. All sources of known or potential groundwater contamination (such as septic tank systems, pesticide, chemical or fuel
storage areas, animal feedlots as defined in G.S. 143-215.10B(5), landfills, or other waste disposal areas) within 500 feet
of the proposed well or well system.

SIGNATURES

The Applicant hereby agrees that the proposed well(s) will be constructed in accordance with approved speci fications and conditions of
this Well Construction Permit as regulated under the Well Construction Standards (Title 15A of the North Carolina Administrative Code,
Subchapter 2C) and accepts full responsibility for compliance with these rules

Signature of Applicant or *Agent Title of Applicant or *Agent

* If signing as Agent, attach authorization agreement stating
Printed name of Applicant or *Agent that you have the authority to act as the Agent.

If the property is owned by someone other than the applicant, the property owner hereby consents to allow the applicant to co nstruct
wells as outlined in this Well Construction Permit application and that it sh all be the responsibility of the applicant to ensure that the
well(s) conform to the Well Construction Standards (Title 15A of the North Carolina Administrative Code, Subchapter 2C).

Signature of Property Owner (if different than Applicant) Printed name of Property Owner (if different than Applicant)

DIRECTIONS

Please send the completed application to the appropriate Division of Water Resources’ Regional Office:

Asheville Regional Office
2090 U.S. Highway 70
Swannanoa, NC 28778
Phone: [phone]
Fax: [phone]

Fayetteville Regional Office
225 Green Street, Suite 714
Fayetteville, NC 28301-5094
Phone: [phone]
Fax: [phone]

Mooresville Regional Office
610 East Center Avenue
Mooresville, NC 28115
Phone: [phone]
Fax: [phone]

Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
Phone: [phone]
Fax: [phone]

Washington Regional Office
943 Washington Square Mall
Washington, NC 27889
Phone: [phone]
Fax: [phone]

Wilmington Regional Office
127 Cardinal Drive Extension
Wilmington, NC 28405
Phone: [phone]
Fax: [phone]

Winston-Salem Regional Office
450 W. Hanes Mill Road
Suite 300
Winston-Salem, NC 27105
Phone: [phone]
Fax: [phone]
GW -22MR Rev. 3-1-2016
GW-22M (Rev. 5/11)
Lease agreement attached LMOC Legacy, LLC
Sr. Project Manager for ATC
Maureen Jackson ATC on behalf of Circle K Stores
April/May 2024
April/May 2024
Steel traffic bearing cover, sealing and locking cap
4
1
3
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
From:                                         Cubberley, Alan
Sent:                                           Wednesday, February 17, 2021 8:11 AM
To:                                               Maureen Jackson
Subject:                                     [EXTERNAL] RE: Permits

  [External Email]  This email originated from outside of the Atlas mail system.
Please use caution when opening attachments.

I give Maureen Jackson permission to sign permits on behalf of Circle K (NPDES, well
permits for off‐site wells, UST (DEQ) forms).

Alan Cub berley
Senior Manager – Risk Control
Fuel and Environmental – North America

e:[e-mail]
t: (330) 634­2101
m: (330) 814­4032
Circle K Stores Inc.
1100 Situs Court, Suite 100
Raleigh, NC 27606
http://corpo.couche­tard.com/en/business­units/

Part of Alimentation Couche­Tard
CONFIDENTIALITY NOTE: This e­mail message, including any attachment(s), contains information
that may be confidential, protected by the attorney­client or other legal privileges, and/or proprietary
non­public information. If you are not an intended recipient of this message or an authorized assistant
to an intended recipient, please notify the sender by replying to this message so that we can correct
our records to avoid the mistake in the future and then delete it from your system. Use, dissemination,
distribution, or reproduction of this message and/or any of its attachments (if any) by unintended
recipients is not authorized and may be unlawful. Your cooperation with this request is appreciated.

From: Maureen Jackson <[e-mail]> 
Sent: Wednesday, February 17, 2021 7:47 AM
To: Cubberley, Alan <[e-mail]>
Subject: [EXTERNAL] Permits
Importance: High

DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
This Message originated outside your organization.
Good morning.  I have an email from Brent from 2016 stating that he gives me permission
to sign permits on behalf of Circle K (NPDES, well permits for off‐site wells, UST (DEQ)
forms).  Can you please send me over an email stating the same?  Sometimes I have to
include this email to DEQ with my submittals.

Thanks
Maureen

Maureen Jackson | SENIOR PROJECT MANAGER | ATC Group Services LLC 
Direct [phone] 
609A Piner Road Suite 1 15  | Wilmington, NC  28409
[e-mail] | www.atcgroupservices.com
This email and its attachments may contain confidential and/or privileged inf ormation for the sole use of
the intended recipient(s). If you are not the intended recipient, any use, distribution or copying of the
information contained in this email and its attachments is strictly prohibited. If you have received this
email in error, please notify the sender by replying to this message and immediately delete and destroy
any copies of this email and any attachments. The views or opinions expressed are the author's own and
may not reflect the views or opinions of ATC.

DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
Pantry Store No. 3781
(Formerly OtR Store #21-06432)
106 N.C. 54/1-40 & Fayetteville Road
Durham, North Carolina
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of this 9th day
of February, 2006, by and between LEE-MOORE OIL COMPANY, a North Carolina
corporation with offices in Sanford, North Carolina (the "Landlord"), and THE PANTRY,
INC., a Delaware corporation with offices in Sanford, North Carolina (the "Tenant").
Landlord and Tenant covenant and agree as follows:
1.PREMISES. In consideration of the rents, terms, covenants, and agreements set forth
in this Lease to be paid, kept, and performed, Landlord grants, demises, and lets to Tenant, and
Tenant hereby takes, rents, and leases from Landlord, on the terms, covenants, provisions, and
agreements provided in this Lease, the Premises (as hereinafter defined).
Landlord is seized and possessed of a fee simple title to a certain tract of land (the
"Land") in Durham, Durham County, North Carolina, described as follows:
See Exhibit A attached hereto and incorporated herein by reference.
The Land as described on Exhibit A includes all existing parking spaces and paved areas,
septic tanks and fields (if applicable), structures housing car washes (if applicable), air vac stands
(if applicable), pay telephone stands (if applicable), buildings and building overhangs (if
applicable), and curb cuts in connection with use of the Premises (as hereinafter defined) as a
convenience store selling petroleum products at retail, but excluding (i) Petroleum Equipment (as
defined in Section 5); (ii) Tenant's Personal Property (as defined in Section 6); and (iii) built-in
refrigeration equipment and walk-in coolers. The Land, together with all appurtenant easements
and rights and improvements thereon, or to be constructed thereon not expressly excluded above
(the "Improvements"), are hereinafter collectively referred to as the "Premises."
As a right accruing to Tenant under this Lease, Landlord agrees that Tenant, without any
compensation from Tenant to Landlord, shall be entitled to all development rights pertaining to
the Land. For example, if applicable zoning ordinances or land use ordinances have allocated a
certain number of traffic trips to the Premises and if Tenant desires to improve the Premises to
add a food service facility thereby adding seats and thus traffic trips from the Premises, Tenant
shall be entitled to the use of the allowed traffic trips in order to improve the Premises.
2. TERM. The base term of this Lease shall commence on February 9, 2006 ("Base
Term Commencement Date") and, subject to Tenant's option to renew as set forth in Section 3,
shall expire on February 28, 2021. The fifteen (15) year period beginning on the Base Term
Commencement Date shall be hereinafter referred to as the "Base Term." A "Lease Year" shall
be a period of twelve (12) consecutive calendar months beginning on the Base Term
t/844567_4.DOC
15 year term lease
5829.396
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
Commencement Date and each anniversary thereof; provided, however, if the Base Term
Commencement Date is not the first day of a calendar month, then the first Lease Year of the
Base Term shall commence on the date hereof and shall expire twelve months after the first day
of the first calendar month following the Base Term Commencement Date.
The six (6) five (5) year periods following the Base Term for which Tenant will have an
option to renew this Lease as provided in Section 3 shall be hereinafter referred to individually as
a "Renewal Term" or collectively as the "Renewal Terms." The Base Term together with the
Renewal Term(s), if any, shall sometimes be referred to as the "Term" or "Term of this Lease".
3. RENEWAL OPTION. Provided and upon the condition that Tenant shall not then be
in default under the terms of this Lease beyond any applicable grace or cure period, the Term of
this Lease shall be automatically renewed for six (6) additional five (5) year periods without
action on the part of either party hereto.In the event Tenant does not desire to renew the
applicable Term of this Lease for any of the six (6) five (5) year Renewal Terms, Tenant shall
notify Landlord in writing of its intention not to renew the Term of this Lease at least one
hundred eighty (180) days prior to the termination of the then current Term, and in the event such
notification is not given by Tenant, the applicable Term of this Lease shall be automatically
extended as above provided.References to the Term of this Lease shall include applicable
extensions of the Term, if any.Except as otherwise expressly stated herein, the terms and
conditions of this Lease shall remain in effect during any extension of the Term of this Lease.
4. RENTAL. Tenant shall pay Rent (sometimes "rent") to Landlord as set forth below.
Rent shall be calculated on an annual basis and shall be payable in advance in equal monthly
installments on or before the first day of each month. Rent shall be paid via electronic transfer of
funds (via ACH transfer or wire transfer), or at Landlord's option (upon thirty (30) days advance
written notice to Tenant), by corporate check sent by ordinary first class mail to Landlord at P.O..
Drawer 9, Sanford, North Carolina 27331 or at such other address as Landlord may designate in
writing from time to time.The ACH transfer instructions or wire transfer instructions for
payments of Rent to Landlord as of the date hereof are: RBC Centura Bank, Sanford, NC, ABA#
053100850, Acct# 500-1000020, RBC Centura Contact: Lowry Perry, RBC Centura Phone
#:252-454-4433. If Landlord desires to change the address for payment of Rent by ACH transfer
or by wire transfer, Landlord shall give written notice of such change in transfer instructions that
must be received by Tenant at least fifteen (15) calendar days before the next scheduled payment
of Rent.Payments made by ordinary first class mail shall be deemed to be received two (2)
business days following the date when mailed. A "business day" is any day of the week except
Saturday, Sunday, or a day that is observed as a legal holiday in the State of North Carolina.
(a)Annual Rent. The annual rent shall be calculated as follows:
(i)The annual rent during the first five (5) years of the Base Term
running from February 9, 2006 through February 28, 2011 shall be $100,000 payable in
monthly installments of $8,333.
(ii)The annual rent during each of the next five (5) years of the Base
th,,Term shall be the annual rent due during the fifth p ) year of the Base Term in the
amount of $100,000 increased by the lesser of (y) six and one-half percent (6.5%) or (z)
2
#844567_4.DOC
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
the increase in the Consumer Price Index for All Urban Consumers, All Items Index Base
Year 1982 - 1984=100, as published by the Bureau of Labor Statistics, United States
Department of Labor (U.S. City Average) ("CPI").The annual rent as adjusted in
accordance with CPI shall be determined by multiplying the annual rent for the fifth (5th)
year of the Base Term by a fraction the numerator of which shall be the CPI for the
month that is three (3) months prior to the end of the first five (5) years of the Base Term
and the denominator of which shall be the CPI for the three (3) months prior to the Base
Term Commencement Date.In no event shall the adjusted annual rent be less than the
annual rent previously in effect nor more than six and one-half percent (6.5%) greater
than the annual rent previously in effect.
(iii)Rent for each subsequent five (5) year period of the Term of this
Lease after the second five (5) year period of the Base Term shall be computed as set
forth in subsection 4.(a) (ii) except that the reference to "the fifth (5th) year of the Base
Term " shall not apply, the adjustment shall be made to the annual rent due during the
five (5) year period in question (that is, the tenth (10th) year of the Base Term, the
fifteenth (15th) year of the Base Term, the twentieth (20th) year of the Term, the twenty -
fifth (25th) year of the Term, the thirtieth (30th) year of the Term, the thirty-fifth (35th)
year of the Term, and the fortieth (40th) year of the Term), and the numerator of the
fraction shall be the CPI that is three (3) months prior to the end of the immediately
preceding five (5) year period and the denominator shall be the CPI for the month that is
three (3) months prior to the commencement of the immediately preceding five (5) year
period.
(b)CPI. If publication of the CPI is discontinued or computation of the CPI is
materially altered, Landlord and Tenant shall use the most nearly comparable index computed
and published by the Bureau of Labor Statistics or other official agency of the United States
Government or if such governmental index is not available, then a responsible financial
periodical of a recognized authority then to be selected by Landlord and Tenant, or if Landlord
and Tenant cannot agree, by arbitration (in accordance with the rules then obtaining of The
American Arbitration Association).
(c)Net Lease.Tenant acknowledges and agrees that it is intended that this
Lease will be, except as otherwise expressly stated herein, a completely "net lease" to Landlord,
and that Landlord is not responsible for any costs, charges, expenses, and outlays of any nature
whatsoever arising from or relating to the Premises, during the Term of this Lease, including,
without limitation, the Improvements, or the use and occupancy thereof, or the contents thereof
or the business carried on therein, repairs, maintenance and upkeep thereof, ad valorem and any
other property taxes and assessments assessed thereon, and all costs of casualty, extended
coverage and liability insurance on the Premises and any and all business conducted thereon,
except as may be otherwise expressly stated herein.From and after the Base Term
Commencement Date, Tenant shall pay all charges, impositions, costs, and expenses of every
nature and kind relating to the Premises arising or accruing during the Term of this Lease, except
as herein expressly provided to the contrary.Notwithstanding the above, Tenant shall not be
responsible for any costs, charges, or expenses pertaining to Landlord's organizational overhead,
the financing or refinancing of the Premises, or Landlord's sale of the Premises.Tenant also
shall not be responsible for any fees, costs, charges, or expenses arising in connection with the
3
#8445673.DOC
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
non-conformity of the existing Premises on the Base Term Commencement Date (including,
without limitation, the Land and the existing Improvements, or any existing use and occupancy
thereof, or the existing contents thereof or the business currently carried on therein) with
applicable law, including, but not limited to, building and/or canopy setback requirements or
parking requirements; and Landlord shall defend, hold harmless, and indemnify Tenant from any
claims, demands, causes of action or threats thereof, governmental enforcement actions or threats
thereof, liabilities, losses, and reasonable costs and expenses actually incurred and arising in
connection with such non-conformity in existence on the Base Term Commencement Date. The
foregoing sentence shall not apply to the environmental responsibilities and liabilities of Tenant,
which are governed by other provisions of this Lease. Tenant covenants and agrees that the Rent
to be paid hereunder shall be, except as otherwise expressly provided herein or permitted by law,
paid without off-set or deduction.Landlord shall have the right to accept all Rent and other
payments, whether full or partial, and to negotiate checks and payments thereof without any
waiver of rights, irrespective of any conditions to the contrary sought to be imposed by Tenant.
The Rent for any partial month shall be prorated based upon the number of days in said month.
(d)Rent Abatement. If the Premises is damaged by a casualty or a portion of
the Premises is taken by a Condemnation (as hereinafter defined), Rent shall abate in proportion
to that part of the Premises that is unavailable for the ordinary conduct of Tenant's business due
to a casualty but not to a Condemnation; provided, however, an abatement of Rent attributable to
a casualty shall terminate no later than the sixtieth (60th) day after the date of the casualty,
payment of Rent in full to commence on the sixty-first (61st) day after the date of occurrence of
the casualty without regard to the availability of the Premises for the ordinary conduct of
Tenant's business. The amount of abatement shall take into account the nature and extent of the
interference to Tenant's conduct of business in the Premises in the ordinary course and the need
for access and essential services.The abatement shall continue from the date the damage
occurred until ten (10) days after completion of the Restoration (as that term is hereafter defined)
or until Tenant again uses the Premises or the part rendered unusable for the ordinary conduct of
its business, whichever first occurs; provided, however, such abatement shall terminate no later
than the sixtieth (60`11) day after the date of the casualty, payment of Rent in full to commence on
the sixty-first (615t) day after the date of occurrence of the casualty without regard to the
availability of the Premises for the ordinary conduct of Tenant's business. Tenant shall diligently
and in good faith pursue restoration and resumption of the ordinary conduct of Tenant's business.
If Landlord and Tenant cannot agree in writing on the abatement of Rent attributable to any such
casualty within thirty (30) days after the occurrence of such damage, they agree to submit
determination of the amount of abatement to arbitration in accordance with the rules then
obtaining of The American Arbitration Association for commercial matters.Tenant shall
continue to pay Rent as provided above until the amount of abatement of Rent is determined.
Thereafter, Landlord shall reimburse Tenant within ten (10) days after determination of the
amount of abatement of Rent such excess Rent paid by Tenant to Landlord.
5. ENVIRONMENTAL. PETROLEUM EQUIPMENT.
(a)The provisions of this Section 5 are intended to be in addition to and shall
not modify the representations, warranties, rights, and obligations of the parties with respect to
Sections 5.16, 9.11, and 11.3 of the Asset Purchase Agreement by and between Landlord and
Tenant dated as of December 7, 2005 (the "Asset Purchase Agreement"). During the Term of
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this Lease, Tenant is and shall remain and be the owner and operator of all Petroleum Equipment
(as defined below) on the Premises, and, accordingly, is further deemed to be such for purposes
of compliance with and liabilities arising from all Environmental Laws (as hereinafter defined).
At any time during the Term of this Lease, Tenant shall have the right to install or cause to be
installed and to maintain, replace, relocate, remove without relocating, repair, upgrade, and
operate petroleum marketing equipment, including, but not limited to, underground or above
ground storage tanks and their associated underground or above ground and/or connected piping,
and related lines,pumps,dispensers,mechanical,control and detectional equipment,
environmental assessment and remediation equipment (collectively,the "Petroleum
Equipment"), and exterior lights, poles, canopies, structures, and consoles on the Premises for
the sale of gasoline and other petroleum products. Upon prior reasonable written request from
Landlord, Tenant shall provide Landlord with a copy of any Permit (as defined below) required
for the Premises by any applicable Environmental Laws. Tenant will not be required to send to
Landlord copies of environmental permits unrelated to Tenant's business and not in Tenant's
name, e.g., permits of other tenants, like a fast food restaurant, that also may operate on the
Premises or permits for a third party's work within any easements crossing the Premises
unrelated to Tenant's business operations.Tenant shall be solely responsible for paying all
required annual underground storage tank ("UST") operating fees accruing in the first instance
during the Term of this Lease to the North Carolina Department of Environment and Natural
Resources ("NCDENR"). Tenant shall not be responsible for late fees assessed and accruing
during the Term of this Lease that relate to Landlord's failure to pay past UST fees for period(s)
prior to the Term of this Lease.
(b)Except as otherwise provided in the Asset Purchase Agreement, Tenant
shall comply with all laws, including Environmental Laws, relating to the use, storage,
transportation, dispensing, sale, or release of Hazardous Material (as hereinafter defined) at the
Premises.Without limiting the foregoing, Tenant shall comply with all laws, including
Environmental Laws, relating to the Petroleum Equipment, including, without limitation,
installation,operation, maintenance, calibration and alarm systems, registration,financial
assurances, and (subject to Section 5(d) below) closure, and promptly shall implement any and
all upgrade requirements promulgated by any government agency having jurisdiction as soon as
practicable, but in no event later than any applicable deadline announced or promulgated by the
government agency unless Tenant shall have received an extension of the deadline for
compliance from such government agency.Tenant shall not use, store, transport, dispense, or
sell Hazardous Material at the Premises or surrounding areas, except as reasonably necessary for
the permitted use of the Premises, including the retail sale of petroleum products, including
gasoline,diesel,and/or kerosene and/or propane gas in compliance with applicable
Environmental Laws; provided, however, Tenant shall not be in breach or default under this
Lease due to the release of petroleum products at the Premises provided Tenant complies with all
applicable Environmental Law and requirements of governmental authorities having jurisdiction
with respect to any such release.Tenant shall obtain and maintain all necessary permits,
approvals,registrations,certificates,and authorizations ("Permits")required under
Environmental Laws for Tenant's operations at the Premises and for the Petroleum Equipment,
and Tenant shall be responsible for all related costs, fees, and charges. Where cooperation of
Landlord is necessary to obtain any such Permits, Landlord shall provide such cooperation but
shall not be compelled to become a permittee or co-permittee unless required by Environmental
Laws, and all reasonable costs, fees, and charges incurred by Landlord in connection therewith
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shall be reimbursed by Tenant within thirty (30) days of presentation of Landlord's statement for
same.Upon request by Landlord, Tenant shall provide Landlord with copies of all reports,
studies, complaints, claims, directives, citations, demands, inquiries, notices of violation or of
regulatory requirements, or orders relating to environmental matters at or emanating from or to
the Premises, at any time, or any alleged non-compliance with Environmental Laws at the
Premises, reasonably promptly (and in no event later than thirty (30) days) after such documents
are provided to or generated by Tenant.To the extent Tenant is required under applicable
Environmental Laws or by governmental authorities having jurisdiction to report a release of
Hazardous Material at, on, under, or from the Premises, Tenant also shall promptly notify
Landlord of any such release of Hazardous Material at, on, under, or from the Premises and shall
perform all investigation, assessment, and remediation required of Tenant or Landlord by
applicable Environmental Laws or governmental authorities having jurisdiction relating to such
conditions within the time periods prescribed by applicable Environmental Laws and as
otherwise directed by governmental authorities having jurisdiction.Tenant shall not be in
violation of this paragraph in connection with the use, storage, transportation, dispensing, or sale
of petroleum products or natural gas so long as such use, storage, transportation, dispensing, or
sale complies with applicable Environmental Laws and requirements of governmental authorities
having jurisdiction, and the normal dispensing of petroleum products and/or kerosene and/or
bottled propane gas in connection with Tenant's customary and lawful operation of the
convenience store at the Premises shall not constitute a release.
(c)Except as otherwise provided in this Section 5 and the Asset Purchase
Agreement, as between Landlord and Tenant, all reporting, investigation, and/or remediation
requirements under any applicable Environmental Laws with respect to any and all releases of
Hazardous Material directly attributable to Tenant's operations at the Premises are the
responsibility of Tenant, and Tenant shall be solely responsible for all costs incurred in
connection with any investigation or monitoring or any cleanup, remediation, removal, or
restoration work required of Tenant by applicable Environmental Laws and governmental
authorities having jurisdiction over the Premises because of Hazardous Material present in the
soil or ground water on, under, or emanating from the Premises, including, without limitation, (i)
that caused or permitted by Tenant, or (ii) as a result of any leaking, overfilling, discharge,
dumping, or spilling (whether accidental or otherwise) on the Premises by Tenant or any of its
subtenants, agents, employees, contractors, customers, or other invitees. As between Landlord
and Tenant, Tenant shall not be responsible for investigation or remediation or for any other
actions with respect to the following:(i) Hazardous Material brought onto or released at, on, or
under the Premises after the Base Term Commencement Date by or on behalf of Landlord, its
agents, employees, contractors, or lenders in violation of Environmental Laws; (ii) any release of
Hazardous Material identified on Schedule 11.3(a) to the Asset Purchase Agreement; (iii) any
release of Hazardous Material that has migrated onto the Premises from off the Premises through
no fault of Tenant after Tenant, at its expense, has investigated such release and obtained an
environmental site assessment report from an independent environmental engineering firm
(which firm may be SEI Environmental, Inc., Tenant's current environmental consultant)
establishing that such release of Hazardous Material on the Premises has migrated onto the
Premises from adjacent premises, determining who the potentially responsible party(ies) is (are)
and that Tenant is not responsible for such release, after which Landlord and Tenant, at their
respective expense, agree to cooperate with each other to pursue recourse against potentially
responsible parties, and communicating and dealing with governmental authorities with respect
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to such migration of Hazardous Material; (iv) the exacerbation of any existing Hazardous
Material contamination (meaning contamination actually known to Landlord or identified on
Schedule 11.3 of the Asset Purchase Agreement) caused by or on behalf of Landlord or its
agents, employees, contractors, or lenders or otherwise; (v) any environmental condition or other
item relating to environmental matters listed on Schedule 9.11(b) to the Asset Purchase
Agreement; (vi) any matters related to, or arising out of, Landlord's breach of the representations
and warranties in Section 5.16 of the Asset Purchase Agreement; (vii) any matters listed on
Schedule 5.16(b) or Schedule 5:16(d) to the Asset Purchase Agreement; and/or (viii) any other
environmental condition or environmental matters for which Landlord is responsible or obligated
under the Asset Purchase Agreement. Tenant shall be responsible for payment of all
investigation and remediation costs and expenses associated with Tenant's compliance with
applicable Environmental Laws for any release of Hazardous Material for which Tenant is
responsible under this Lease, including payment or obtaining waivers of deductibles for the
North Carolina Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund (the
"Trust Fund") or any other fund, program, or insurance policy relating to such costs (excluding
insurance coverage maintained by Landlord), from which Tenant shall have sole responsibility to
seek reimbursement or payment.Landlord shall have no right, claim, or interest in or to any
such costs and expenses that are subsequently recovered or reimbursed to Tenant through the
Trust Fund, other fund, program, or insurance (other than insurance maintained by Landlord), or
recovery from responsible third parties, or other action.
(d)Not fewer than sixty (60) days prior to the expiration of the Term of this
Lease, Landlord shall provide written notice to Tenant of Landlord's election to (i) require
Tenant to remove all Petroleum Equipment located on the Premises and in connection therewith
remove and close underground storage tanks on the Premises and used by Tenant pursuant to the
then applicable Environmental Laws and governmental authorities' requirements and obtain such
authorities' acceptance of the closure of such Petroleum Equipment; or (ii) purchase the
Petroleum Equipment located on the Premises from Tenant at a price equal to the value of such
Petroleum Equipment as carried on Tenant's books, unless Landlord's assessment shows the
Petroleum Equipment or portions thereof to be failing or to have failed (and not to have been
properly corrected and repaired), in which case the Petroleum Equipment shall be removed by
Tenant as set forth below at Tenant's expense and no purchase price shall be owed. Landlord
may conduct, in its sole discretion and at its expense, such assessments and testing of the
Petroleum Equipment and the Premises in order to establish the operating condition of the
Petroleum Equipment and whether a release of Hazardous Material has occurred on the Premises
for which Tenant would be responsible. Notwithstanding the foregoing, if Landlord chooses not
to require Tenant to remove the Petroleum Equipment from the Premises and upon Landlord's
request, Tenant shall, at Tenant's expense, obtain a Phase 11 Environmental Site Assessment in
accordance with then current ASTM guidelines (the "Phase II Report") prior to the expiration or
sooner termination of the Term of this Lease.Tenant shall promptly provide a copy of such
Phase II Report to Landlord.Landlord's purchase option may be assigned at Landlord's
discretion if Tenant has no continuing liability with respect to the Petroleum Equipment; if
Tenant does have continuing liability with respect to the Petroleum Equipment, the assignee
must be reasonably acceptable to Tenant. If Landlord demands that the Petroleum Equipment be
removed by Tenant, then not later than forty-five (45) days after the expiration or sooner
termination of the Term of this Lease, Tenant, at Tenant's expense, shall remove all such
Petroleum Equipment and the contents thereof (but excluding any environmental assessment and
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remediation equipment required to comply with or to maintain compliance with applicable
Environmental Laws and requirements of governmental authorities having jurisdiction), and
properly close all such Petroleum Equipment in accordance with applicable Environmental Laws
and requirements of governmental authorities having jurisdiction (including the sending of any
required notices and reports to governmental authorities). Tenant shall provide Landlord with a
copy of Tenant's underground storage tank closure report, together with all closure assessment
data, upon the report's filing with NCDENR (the "UST Closure Report").If Tenant's Phase II
Report or UST Closure Report reveals environmental conditions directly attributable to Tenant's
operations at the Premises to be in violation of applicable Environmental Laws, Tenant shall
perform all investigation and remediation required of Tenant by applicable Environmental Laws
and governmental authorities having jurisdiction with respect to such conditions and restore the
surface of the Premises to substantially the same condition as existed prior to such equipment
removal or Phase II testing (as the case may be) to the extent commercially practicable.If
Landlord demands that any Petroleum Equipment be removed by Tenant, and Tenant fails to do
so within forty-five (45) days after the expiration or sooner termination of the Term of this
Lease, Landlord shall be entitled to remove such Petroleum Equipment, assess whether there is
any Hazardous Material contamination related to such Petroleum Equipment or the Premises,
remediate any such contamination to the extent required by applicable Environmental Laws and
governmental authorities having jurisdiction, and obtain closure from the appropriate regulatory
agency, all at Tenant's expense. In no event shall Tenant be required to remediate or pay for any
investigation or remediation of the Premises to an extent or condition beyond that required of
Tenant by applicable Environmental Laws, NCDENR, and other governmental authorities
having jurisdiction.Tenant's obligation to conduct any such investigation or remediation of a
release of Hazardous Material for which Tenant is responsible under this Lease shall continue
only for so long as such investigation or remediation continues to be required by applicable
Environmental Laws, NCDENR, or other governmental authorities having jurisdiction.hi the
event Tenant is required by applicable Environmental Laws (including without limitation N.C.
Gen. Stat. §§ 143B-279.9 and 143B-279.11) or NCDENR to record a Notice of Residual
Petroleum or similar instrument (on a form approved by NCDENR) containing restrictions on
the current and future use of the Premises, Landlord, as fee owner of the Premises, shall
cooperate with Tenant in the execution of such Notice of Residual Petroleum or similar
instrument.Tenant shall not be obligated to reimburse Landlord for costs, fees, and charges
incurred by Landlord in connection with such Notice of Residual Petroleum.Landlord agrees
not to assert or make any claim against Tenant arising out of the recordation of a Notice of
Residual Petroleum or similar instrument running with the Premises as may be required of
Tenant by applicable Environmental Laws or NCDENR.
(e)Tenant shall comply with all applicable laws, regulations, and local codes
in maintaining the Premises, including, without limitation, obtaining any permits for any
abatement of asbestos-containing materials and proper disposal thereof.
In the event the Term of this Lease expires and is not renewed or the
Lease is terminated and any further investigation, remediation, or monitoring is required that is
the responsibility of Tenant hereunder, Landlord and its lessees, successors, and assigns: (i) shall
permit, without charge, cost, fee, or assessment, Tenant and its agents and representatives
reasonable access to the Premises for completing such investigation,remediation, and
monitoring, and (ii) shall not materially damage, disturb, or remove or otherwise unreasonably
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impede or interfere with such investigation, remediation, or monitoring or the associated
equipment, installations, or facilities. Tenant shall not be liable or responsible for any disruption
of business or other liabilities, costs, or expenses incurred by Landlord or its lessees, successors,
or assigns that may be caused by Tenant's investigation, remediation, or monitoring activities
provided that Tenant has acted reasonably in conducting such activities.Landlord shall obtain
from all lessees, successors, and assigns of the Premises written agreement to the provisions in
this paragraph.To the extent necessary for Tenant to comply with its obligations under this
Section 5 after the expiration of the Term or sooner termination of this Lease, Landlord and
Tenant shall enter into a mutually agreeable right of entry and access agreement allowing access
to the Premises by Tenant and its employees, agents, and contractors in accordance with the
provisions of this paragraph.
(g)Tenant shall indemnify, defend, and hold Landlord harmless from and
against any and all claims, judgments, penalties, fines, liabilities, liens, losses, and reasonable
costs and expenses actually incurred by Landlord arising out of Tenant's breach of its obligations
under this Section 5, or which arise during or after the Term of this Lease as a direct result of
Tenant's noncompliance with applicable Environmental Laws or requirements of governmental
authorities having jurisdiction.Landlord agrees that Tenant shall have no obligation to
indemnify Landlord from any of the preceding matters if caused by or on behalf of Landlord, its
agents, employees, contractors, lenders, or any business invitees of Landlord, and Tenant shall
not be liable to indemnify Landlord from any claim, judgment, penalty, fine, costs, liability, or
loss attributable to any such person's negligence or intentional misconduct.Landlord shall
indemnify, defend, and hold Tenant harmless from and against any and all claims, demands,
causes of action, liabilities, losses, and reasonable costs and expenses actually incurred by
Tenant and arising from Landlord's breach of its obligations under this Section 5.Tenant's and
Landlord's indemnification under this subsection 5(g) shall survive the expiration or earlier
termination of the Term of this Lease.
(h)The term "Hazardous Material" means any substance, material, or waste
which is toxic, ignitable, reactive, or corrosive and which is or becomes regulated by local or
state governmental authority or by the United States Government.The term "Hazardous
Material" includes, without limitation, any material or substance which is (i) defined as a
"hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous
substance," or "hazardous material" by any local or state law, (ii) oil and petroleum products and
their by-products, (iii) asbestos-containing materials, (iv) designated as a "hazardous substance"
pursuant to the Federal Water Pollution Control Act, (v) defined as a "hazardous waste" pursuant
to the Federal Resource Conservation and Recovery Act, or (vi) defined as a "hazardous
substance" pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act. Hazardous Material does not include cleaning agents used in connection with the
operation of Tenant's business on the Premises provided such agents are contained and used in
accordance with applicable Environmental Laws and manufacturer's requirements.
(i)The term "Environmental Laws" shall mean any law, statute, regulation,
order, or rule now or hereafter promulgated by any governmental entity, whether local, state, or
federal, relating to air pollution, water pollution, and/or transporting, storing, handling, discharge
of, or disposal of Hazardous Material, including, without limitation, the following: the Clean Air
Act: the Resource Conservation and Recovery Act, as amended by the Hazardous Waste and
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Solid Waste Amendments of 1984; the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986;
the Toxic Substances Control Act; the Federal Insecticide and Rodenticide Act, as amended; the
Safe Drinking Water Act; the Occupational Safety and Health Act; the Hazardous Materials
Transportation Act; and the National Environmental Policy Act, as the same may be amended
from time to time.
6. TRADE FIXTURES AND EQUIPMENT. All Petroleum Equipment, furniture, trade
fixtures, exterior lights and poles, all signage and supporting structures, and equipment of Tenant
(including gasoline canopy and structure, equipment located within a car wash, and built-in
refrigeration equipment and walk-in coolers, which refrigeration equipment and coolers are
deemed Tenant's personal property even though attached to the Premises), and every other item
of personal property not permanently attached to the Premises (collectively, "Tenant's Personal
Property") are to remain and be the property of Tenant and Tenant is to have the right and
privilege of removing any and all such property and equipment at any time during the Term of
this Lease and within thirty (30) days thereafter. Except with respect to Petroleum Equipment, in
the event the aforesaid equipment is not removed by Tenant within said thirty (30) day period, at
Landlord's option (with written notice to Tenant), title thereto shall automatically pass to and vest
in Landlord, and Tenant shall thereafter be relieved of any and all responsibility in connection
with said equipment. If said equipment is removed, Tenant promptly shall restore the Premises
to its condition immediately prior to the removal of such property to the extent commercially
practicable. Tenant shall repair any damage to the Premises caused by the foregoing removal of
Tenant's property.It is further understood and agreed that the buildings and structures erected on
the Premises, including electrical systems, plumbing systems, and heat and air conditioning
equipment, may not be removed by Tenant at the expiration or termination of the Term of this
Lease.
Notwithstanding anything to the contrary contained in this Lease, if Tenant does not
extend the Term of this Lease or terminates this Lease in accordance with the terms of this
Lease, Tenant shall notify Landlord when it notifies Landlord of its intention not to renew the
Term of this Lease or of its decision to terminate this Lease in accordance with its terms whether
Tenant intends to leave or remove the built-in refrigeration equipment and walk-in coolers
("Landlord's Option Property"). The purchase price for Landlord's Option Property shall be the
book value of Landlord's Option Property as carried on Tenant's books as of the date of
expiration or termination of the Term of this Lease. Tenant shall include in such notice the book
value of Landlord's Option Property. Landlord shall have thirty (30) days from receipt of such
notice to notify Tenant if Landlord elects to purchase the Landlord's Option Property at the price
specified by Tenant or to require Tenant to remove the Landlord's Option Property. If Landlord
elects that Tenant remove the Landlord's Option Property, the same shall be removed by Tenant,
at Tenant's sole cost and expense, within thirty (30) days after expiration of the Term or
termination of this Lease by Tenant.If Landlord elects to purchase the Landlord's Option
Property, Landlord shall pay to Tenant the purchase price specified in Tenant's notice upon
delivery of a bill of sale from Tenant conveying title of the Landlord's Option Property to
Landlord.
Notwithstanding anything to the contrary contained in this Lease, if Tenant elects to "go
dark" at the Premises and if Landlord and Tenant agree on mutually acceptable terms for
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termination of this Lease, Landlord shall have the option to purchase the Landlord's Option
Property as set forth in the preceding paragraphs.If Landlord does not elect to purchase the
Landlord's Option Property, then the terms of the first paragraph of this Section 6 shall apply to
Tenant's removal of the Landlord's Option Property.
7.TENANT'S RIGHT TO ALTER AND IMPROVE. Except as provided in Sections 5
and 6 hereof, Tenant shall not make any additions, alterations, or Improvements in or to the
Premises without Landlord's prior consent, which consent shall not be unreasonably withheld,
conditioned, or delayed.Landlord shall be deemed to have consented to any such addition,
alteration, or Improvement if Landlord has not responded to Tenant's request within thirty (30)
days after receiving notice from Tenant of such proposed action.
The foregoing restriction in this Section 7 shall not apply to interior or exterior
remodeling or alteration which does not affect the structural integrity of buildings or which
would not impair the use of the Premises as a convenience food store or other use permissible
under this Lease, and shall not apply to Tenant's repainting of the interior or exterior of the
buildings or structures on the Premises nor to changes in Tenant's signage or "trade dress."
Except as otherwise provided herein, all additions, alterations, and Improvements made in or to
the Premises by Tenant shall be the property of Tenant but shall be surrendered with the
Premises at the termination of the Term of this Lease.All alterations,additions,or
improvements (including, without limitation, interior or exterior remodeling and repainting and
changes in Tenant's signage as set forth above), shall be accomplished by Tenant in a good and
workmanlike manner, shall be authorized by any governmental authority having jurisdiction over
the Premises to the extent required by applicable law, and shall be in conformity with applicable
laws and regulations.Upon completion of any such work costing more than One Hundred
Thousand Dollars ($100,000), Tenant shall provide to Landlord "as-built" plans.Tenant shall
pay when due (subject to matters contested by Tenant in good faith) all claims for such labor and
materials and shall give Landlord at least ten (10) days'prior written notice of the
commencement of any such work to the extent any such work is anticipated to cost in excess of
One Hundred Thousand Dollars ($100,000) in the aggregate for the project. Landlord may enter
upon the Premises, in such case, for the purpose of posting appropriate notices, including, but not
limited to, notices of non-responsibility.
8.USE OF PREMISES; LAWFUL PURPOSES. Tenant covenants that the Premises
shall be used for a convenience food store and for the sale of gasoline and other petroleum
products and for such other business as Tenant may desire so long as the use is lawful and does
not violate any applicable federal, state, county, or municipal ordinances and laws that are in
force and does not violate any restrictions applicable to Landlord with respect to the Premises or
other property owned or leased by Landlord in the vicinity of the Premises so long as any such
restrictions do not prohibit, restrict, or impair Tenant's use of the Premises for a convenience
food store and for the sale of gasoline and other petroleum products and so long as Landlord has
notified Tenant in writing before the Base Term Commencement Date of any such restrictions
currently in force which are known to Landlord and thereafter notifies Tenant in writing of any
new restrictions which are known to Landlord at least thirty (30) days before they become
applicable to the Premises. Landlord warrants and represents to Tenant that such use is lawful
and conforms to all applicable zoning and other use restrictions and regulations applicable to the
Premises. Notwithstanding anything contained herein to the contrary, Tenant may discontinue or
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cease operations at the Premises (i.e., "go dark") provided Tenant continues to pay Rent and all
other monetary obligations in this Lease, to perform the other terms and conditions of this Lease
expressly including insuring the Premises, and takes all reasonable steps to protect the Premises
against vandalism.In the event of the occurrence of a violation of law, Tenant shall not be in
default under this Lease if applicable law does not require Tenant to take any action to correct the
alleged violation.hi the event of the occurrence of a violation of law, if applicable law requires
Tenant to take certain action, Tenant shall not be in default under this Lease so long as Tenant
proceeds to take all action required by applicable law and by any federal, state, county, or
municipal authority having jurisdiction, provided Tenant pursues such required action in a timely
manner and in conformity with the regulations of the governmental authority having jurisdiction.
Tenant, at Tenant's sole expense, promptly shall comply with all applicable statutes,
ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in
effect during the Term or any part of the term hereof, regulating the use by Tenant of the
Premises, including, without limitation, the obligation at Tenant's cost, to alter, maintain, or
restore the Premises in compliance and conformity with all laws relating to the condition, use, or
occupancy of the Premises during the Term (including, without limitation, any and all
requirements as set forth in The Americans with Disabilities Act) (collectively, "Legal
Requirements"); provided, however, the foregoing shall not apply with respect to any violations
of Legal Requirements existing on the Base Term Commencement Date or with respect to any
alterations or improvements to the Premises required under Legal Requirements after the Base
Term Commencement Date costing more than Twenty-Five Thousand Dollars ($25,000).If
Landlord and Tenant cannot agree upon an equitable sharing of the cost of such alterations or
improvements costing more than Twenty-Five Thousand Dollars ($25,000)within forty-five (45)
days after Landlord has notified Tenant of the need for such alterations or improvements under
Legal Requirements, Tenant shall have the right to terminate this Lease upon written notice to
Landlord. Notwithstanding the foregoing, in the event of alterations or improvements mandated
by Legal Requirements coming into effect during the first five (5)years of the Base Term, and if
Tenant does not terminate this Lease pursuant to the preceding sentence, Tenant, at its option,
may bear the cost of such alterations or improvements mandated by Legal Requirements after the
Base Term Commencement Date and costing more than Twenty-Five Thousand Dollars
($25,000),and Landlord agrees that the annual Rent under this Lease shall be reduced by the cost
of such required alterations or improvements multiplied by eight percent (8%) until the cost of
such alterations or improvements mandated by Legal Requirements coming into effect within the
first five (5)years after the Base Term Commencement Date is recovered by Tenant.
Tenant shall have the right,after prior written notice to Landlord, to contest by
appropriate legal proceedings, diligently conducted in good faith, in the name of Tenant or
Landlord or both, the validity or application of any Legal Requirement subject to the following:
(i) if by the terms of any such Legal Requirement, compliance therewith pending the prosecution
of any such proceeding may legally be delayed without the incurrence of any lien, charge, or
liability of any kind against the Premises or any part thereof and without subjecting Tenant or
Landlord to any liability, civil or criminal, for failure so to comply therewith, Tenant may delay
compliance therewith until the final determination of any such proceeding; (ii) if any lien,
charge, or civil liability would be incurred by reason of any such delay, Tenant nevertheless may
contest as aforesaid and delay as aforesaid, provided that such delay would not subject Landlord
to criminal liability and Tenant (A) furnishes to Landlord security reasonably satisfactory to
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Landlord as to form and amount against any loss or injury by reason of such contest or delay and
(B) prosecutes the contest with due diligence; and (iii) in any case where the consent of any
Landlord's mortgagee is required for any of the contests mentioned above, Tenant shall secure
such consent prior to commencing such contest. Landlord, on written request from Tenant, shall
execute and deliver any appropriate papers which may be necessary or proper to permit Tenant
so to contest the validity or application of any such Legal Requirement. Tenant covenants that
Landlord shall not suffer or sustain any costs, expenses, or liabilities by reason of any act or
thing done or omitted to be done pursuant to this paragraph. The provisions set forth in this
Section 8 shall not apply to Environmental Laws, which are governed by Section 5.
9. NUISANCE. Tenant agrees not to create or, subject to conditions caused by others,
allow any nuisance to exist on the Premises, and to abate any nuisance that may arise, promptly
and free of expense to Landlord.This Section 9 shall not apply to releases of petroleum
products, which are governed by Section 5.
10. TAXES UTILITIES.
(a)Tenant's Required Payments. Tenant shall pay before delinquency and as
additional rent, all taxes, assessments, license fees, and costs incurred pursuant to covenants and
restrictions affecting the Premises (Landlord agreeing to notify Tenant in writing of such
covenants and restrictions affecting the Premises), and other charges (collectively referred to as
"Taxes") levied or assessed against all merchandise, personal property, real property, buildings
and improvements, and any other obligations which are or may become a lien or levied against
the Premises. Tenant shall provide Landlord with evidence of payment of Taxes promptly upon
request.lf,at any time during the Term, the state in which the Premises is located or any
political subdivision of the state, including any county, city, county and city, public corporation,
district, or any other political entity or public corporation of that state, levies or assesses against
Landlord a tax, fee, or excise on (i) rents, including, if applicable, property taxes, insurance,
maintenance, and other costs incurred by Tenant by which Landlord may benefit; (ii) on the
square footage of the Premises; (iii) on the act of entering into this Lease; or (iv) on the
occupancy of Tenant, or levies or assess against Landlord any other tax, fee, or excise, however
described, including, without limitation, a so-called value added tax, as a direct substitution, in
whole or in part for, or in addition to, any real property taxes, Tenant shall reimburse to Landlord
or directly pay before delinquency that tax, fee, or excise.It is the intention of Tenant and
Landlord that all new and increased assessments, taxes, fees, levies, and charges, and all similar
assessments, taxes, fees, levies, and charges be included within the definition of Taxes for the
purpose of this Lease.If, at any time during the Term, the laws concerning the methods of real
property taxation prevailing at the Base Term Commencement Date are changed so that a tax or
excise on rents or any other tax, however described, is levied or assessed against Landlord as a
substitution, in whole or in part, for any real property taxes, then Taxes shall include, but not be
limited to, any such assessment, tax, fee, levy, or charge allocable to or measured by the area of
the Premises or the rent payable hereunder, including, without limitation, any gross income tax
with respect to the receipt of such rent, or upon or with respect to the possession, leasing,
operating, management, maintenance, alteration, repair, use, or occupancy by Tenant of the
Premises, or any portion thereof. Notwithstanding anything in this Lease to the contrary, Tenant
shall not be liable for any increase in Taxes caused by a sale or other disposition of the Premises
by Landlord or any successor owner of the Premises which increase in Taxes is assessed outside
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the normal schedule of assessment of real property taxes by the governmental authority having
jurisdiction over the Premises for such taxation.
(b)Payments Not Required by Tenant. Tenant shall not be required to pay
any municipal, county, state, or federal income or franchise taxes of Landlord, or any inheritance
or transfer taxes of Landlord or annual reporting or other fees in connection with maintaining
Landlord's organizational existence under the laws of the State of its formation or creation.
(c)Assessments.If any assessment for a capital improvement made by any
public or governmental authority shall be levied or assessed against the Premises, and the
assessment is payable either in a lump sum or on an installment basis, then Tenant shall have the
right to elect the basis of payment. If Tenant shall elect to pay the assessment on the installment
basis, then Tenant shall pay only those installments which shall become due and payable during
the Term.
(d)Utility Payments.Tenant shall promptly pay when due all charges for
water, gas, electricity, and all other utilities furnished to or used upon the Premises, including all
charges for installation, termination, and relocations of such services.
(e)Tenant's Right to Contest Utility Charges Contest Taxes and Seek
Reduction in Assessed Valuation of the Premises. Tenant, at its cost, shall have the right, at any
time, to seek a reduction in the assessed valuation of the Premises or to contest any Taxes or
utility charges that are to be paid by Tenant. If Tenant seeks a reduction or contests any Taxes or
utility charges, the failure on Tenant's part to pay the Taxes or utility charges shall not constitute
a default as long as Tenant complies with the provisions of this Section 10. Tenant may use any
means allowed by statute to protest property tax assessments or utility charges as defined in this
Section 10 as long as Tenant remains current as to all other terms and conditions of this Lease.
If, during the protest period, any lease defaults occur and the protested Taxes or assessments
have not been paid, then Tenant shall furnish to Landlord a surety bond issued by an insurance
company qualified to do business in the state where the Premises is located. The amount of the
bond shall equal one hundred ten percent (110%) of the total amount of Taxes in dispute. The
bond shall hold Landlord and the Premises harmless from any damage arising out of the
proceeding or contest and shall insure the payment of any judgment that may be rendered.
Landlord Not Required to Join in Proceedings or Contest Brought by
Tenant. Landlord shall not be required to join in any proceeding or contest brought by Tenant
unless applicable law requires that the proceeding or contest be brought by or in the name of
Landlord or the owner of the Premises.In that case, Landlord shall join in the proceeding or
contest or permit it to be brought in Landlord's name as long as Landlord is not required to bear
any cost.Tenant, on final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered, together with all costs, charges, interest, and
penalties incidental to the decision or judgment.
(g)Landlord and Tenant shall request the taxing authorities to send bills or
statements for Taxes to Tenant. If the taxing authorities will not permit all bills or statements for
Taxes to be sent directly to Tenant, Landlord shall forward to Tenant in a timely manner all bills
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io
or statements for Taxes. Landlord shall pay any interest and penalties for Tenant's late payment
of Taxes caused by Landlord's failure timely to forward such tax bills or statements to Tenant.
11. INSURANCE.
(a)Tenant shall keep the buildings located upon the Premises insured against
loss or damage by fire or other casualty and extended coverage, vandalism, malicious mischief,
and special extended perils in an amount equal to the replacement cost of the Improvements on
the Premises and all contents located on or within the Premises. The insurance required to be
maintained by this Section 11(a) shall provide that payments for losses be made jointly to
Landlord or Landlord's mortgagee and Tenant. If the Premises is located in a one hundred year
flood zone or in an area recognized as having a risk of damage by earthquake, Tenant shall, at
Tenant's expense, obtain and keep in force during the Term a policy or policies of insurance
covering loss or damage due to perils caused by earthquake and/or flood. Such insurance policies
may contain commercially reasonable exclusions, retention, and deductible amounts.
Notwithstanding the foregoing, Landlord acknowledges and agrees that as of the
Base Term Commencement Date, Tenant's current program of insurance does not afford
coverage for perils of flood for real property located in a FEMA Flood Zone A or V and with
respect to such risk, Tenant is self-insured.Effective on the Base Term Commencement Date
and continuing for so long as (i) The Pantry, Inc., a Delaware corporation ("The Pantry"), is the
tenant under this Lease, or any successor ("Successor") to The Pantry is the tenant under the
Lease so long as such Successor has a creditworthiness equal to or greater than the
creditworthiness of The Pantry on the date hereof, all as reasonably determined by Landlord; and
(ii) there is no material adverse change in The Pantry's or Successor's financial condition,
Tenant is relieved of its obligation to procure and maintain a policy of insurance covering loss or
damage to the Premises due to flood.In the event (a) The Pantry or Successor is no longer the
tenant under this Lease; (b) there is a material adverse change in The Pantry's or Successor's
financial condition; or (c) flood insurance becomes available at commercially reasonable rates
for the Premises, Tenant shall be required to procure and thereafter maintain a policy of flood
insurance as otherwise required hereunder promptly following receipt of written notice from
Landlord.
(b)Tenant shall obtain and maintain business interruption insurance for one
year and worker's compensation in statutorily required amounts.
(c)During the Term, or any extension thereof, Tenant shall maintain in force
a policy of insurance insuring Landlord and Tenant against liability for accidents on the Premises
with limits of coverage not less than $5,000,000 combined single limit for property damage loss
and bodily injury to any person arising from any one occurrence. This limit may be provided in
either a primary policy of insurance or a combination of primary and umbrella excess coverage.
(d)The policies of insurance that Tenant is required to obtain and maintain
hereunder shall name Landlord as an additional insured and loss payee to the extent of
Landlord's interest in this Lease and the Premises.A certificate of liability insurance and
evidence of property insurance shall be delivered to Landlord evidencing Tenant's compliance
with this Section 11.Such policy shall be in such form and with such insurance company as
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shall be reasonably satisfactory to Landlord with provisions for at least thirty (30) days notice to
Landlord of cancellation.Tenant shall not cancel such policy without thirty (30) days' prior
notice to Landlord.Prior to the expiration or cancellation of any such policy, Tenant shall
supply Landlord with a substitute therefor or with evidence of payment of premiums therefor.
Within thirty (30) days of any cancellation of any such policy by the carrier, Tenant shall replace
such cancelled policy with another of commercially available equivalent coverage and terms at
Tenant's sole expense.
(e)If Tenant shall at any time fail to maintain any insurance required
hereunder, Landlord may effect or maintain such insurance and any money expended for that
purpose shall be repayable by Tenant on demand.
(I)Tenant shall indemnify and hold Landlord harmless from all claims for
personal injuries, death, and property damage which occur as a result of the operation of the
business in and about the Premises, or which result from any work done in and about the
Premises by Tenant or any contractors selected by or for Tenant, but excluding claims arising
from the gross negligence or willful misconduct of Landlord,its employees,agents,
representatives, contractors, or lenders.
(g)During such time as no uncured event of default by Tenant is outstanding
hereunder, Tenant may elect to self-insure all or any portion of the required coverage referred to
in Subsection (c) above pursuant to a commercially reasonable self-insurance program. Tenant
shall not be deemed a self-insurer merely by maintaining commercially reasonable deductibles,
retentions, or exclusions.In the event that Tenant becomes a self-insurer with respect to the
insurance coverage required under Subsection (c) above, Tenant shall be required to secure
Landlord's approval of such self-insurance.Such approval, which shall not be unreasonably
withheld, conditioned, or delayed, shall be based upon Tenant's creation of a reasonable reserve
or replacement fund which is reflected on Tenant's audited financial statements.Except with
respect to flood insurance as set forth in Subsection (a) above, Tenant may not self-insure the
required coverages referred to in Subsections (a) or (b) above without first obtaining the written
consent of Landlord, which consent may not be reasonably withheld, conditioned, or delayed.
(h)Tenant shall ensure that all Contractors (as defined below) performing
work on or about the Premises costing more than Fifty Thousand Dollars ($50,000) have in place
a commercially reasonable policy of general liability insurance and that Landlord is named as an
additional insured under such policy.In the event Landlord is to be named as an additional
insured under such a policy pursuant to the provisions hereof, Tenant shall cause a certificate of
liability insurance to be delivered to Landlord in connection with any such policies.As used
herein, the term "Contractors" shall mean contractors or third parties who are performing work
on or about the Premises either (i) in connection with work that was approved by Landlord
pursuant to Section 7 or (ii) in connection with the Petroleum Equipment.
12. REPLACEMENT OF IMPROVEMENTS; APPLICATION OF INSURANCE
PROCEEDS THERETO.
(a)If the Improvements shall be damaged or destroyed in whole or in part by
fire or other casualty, the net amount of all insurance proceeds received by Landlord or
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Landlord's mortgagee (if added to any policy of insurance required to be carried by Tenant
hereunder) and Tenant, after deduction of the reasonable costs and expenses incurred in
collecting the same, shall, at Tenant's request, be disbursed to Tenant to pay for the costs and
expenses of the Restoration (as hereinafter defined).Landlord or Landlord's mortgagee, as the
case may be, shall promptly cause the check or other negotiable instrument representing the net
amount of the insurance proceeds to be endorsed, executed, or otherwise set over to Tenant so as
to enable Tenant to proceed with the Restoration.
(b)Except as set forth below, Tenant, to the extent of insurance proceeds
made available to Tenant, shall have the obligation to proceed promptly after the insurance
claims are settled with the restoration, replacement, rebuilding, or repair of the Improvements as
nearly as possible to the condition the Improvements were in immediately prior to such fire or
other casualty (the "Restoration"). The Restoration shall be done in compliance with all
applicable laws, rules, and regulations.Tenant shall provide Landlord and, upon Landlord's
written request, Landlord's mortgagee, if any, with reports on the progress of the Restoration
from time to time.
(c)If the damage or destruction occurs within five (5) years of the end of the
Base Term or during any Renewal Term, or if the damage or destruction materially diminishes
the value of the Premises to Tenant, or if the estimated total cost of the Restoration exceeds
$150,000, then Tenant may, at its election, terminate this Lease on thirty (30) days written notice
to Landlord, provided that Tenant shall remain responsible for all of the obligations imposed
upon it by Section 5 above upon the expiration or termination of this Lease. If Tenant terminates
this Lease pursuant to the preceding sentence, all proceeds of insurance and reimbursement for
the costs to comply with any legal requirement regarding the condition in which the Premises
must be put for health or safety reasons if Restoration is not to occur, shall belong to Landlord,
and Tenant shall have no obligation to repair or restore the Premises, but nothing herein shall
release Tenant from its environmental obligations that survive termination of this Lease.
Notwithstanding the foregoing sentence, if Tenant elects to obtain environmental/underground
storage tank insurance to cover assessment and/or remediation costs and any other costs
pertaining to petroleum contamination and covering third party claims associated with releases of
petroleum and if Tenant satisfies applicable underground storage tank financial responsibility
requirements, Landlord shall not be entitled to any proceeds of insurance pertaining to
environmental or underground storage tank coverage.
(d)Notwithstanding anything contained herein to the contrary, Landlord shall
have no obligation to release any insurance proceeds that are not made available by Landlord's
mortgagee, if any, and Tenant shall not be obligated to restore the Premises unless such net
insurance proceeds are released as described herein. If net insurance proceeds are not released as
described herein, this Lease may be terminated by either party. If net insurance proceeds are not
released to Tenant to proceed with the Restoration, Tenant may nonetheless, upon prior written
notice to Landlord, elect to proceed with the Restoration at its own cost and this Lease shall
continue in full force and effect, but Rent for the remaining Term, including Renewal Terms,
shall be reduced by an annual amount equal to eight percent (8.00%) multiplied by the lesser of
(a) the amount of insurance proceeds not made available to Tenant for Restoration and (b)
Tenant's documented costs of Restoration.
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13. [Intentionally Deleted]
14. REPAIR AND MAINTENANCE.
(a)Obligation to Maintain the Premises. During the Term, Tenant shall, at its
own expense, keep and maintain the entire Premises in good order and repair, including, but not
limited to, the interior, exterior, foundations, floors, walls, roof, and structure of the building;
and the sidewalks, curbs, walls, trash enclosures, paving, landscaping with sprinkler system (if
installed), light standards, and parking areas which are a part of the Premises. Tenant shall make
such repairs and replacements as may be necessary, regardless of whether the benefit of such
repair or replacement extends beyond the Term.
Notwithstanding the foregoing, in the event Tenant makes a capital expenditure (i) in
excess of Twenty-Five Thousand Dollars ($25,000.00) within the last two (2) years of the Base
Term or (ii) in excess of Twelve Thousand Five Hundred Dollars ($12,500.00) in the last year of
the Base Term pursuant to its repair and maintenance obligations under this Section 14 with
Landlord's written approval as hereinafter provided, Tenant, provided no uncured Event of
Default exists under this Lease as of the date of expiration of the Term of this Lease, shall
receive a credit upon the expiration of the Term of this Lease, which credit shall be calculated
by: (i) dividing the remaining useful life of the capital improvement upon Lease expiration by
the total useful life of the capital improvement and then (ii) multiplying the result obtained in (i)
above by the reasonable cost of the capital expenditure.It is understood by the parties that as a
condition precedent solely to Tenant's entitlement to the foregoing credit for any such capital
expenditure but not as a condition to making the capital expenditure, Tenant must obtain the
prior written approval of Landlord to such expenditure, which approval Landlord shall not
unreasonably withhold, condition, or delay and which approval Landlord shall give or deny
within thirty (30) days after receipt of Tenant's request for approval.If Landlord withholds its
approval of a proposed capital expenditure requested by Tenant in excess of Twenty-Five
Thousand Dollars ($25,000.00) to be made within two (2) years before the end of the Base Term
or of Twelve Thousand Five Hundred Dollars ($12,500.00) within one (1) year before the end of
the Base Term and Landlord does not approve of the requested expenditure, Tenant shall have
the right to terminate this Lease, and this Lease shall thereafter terminate on the last day of the
month that is at least thirty (30) days after receipt by Tenant of Landlord's rejection of Tenant's
request for approval of the requested capital expenditure."Capital expenditure" as used herein
shall mean those expenditures incurred in connection with the roof, foundation and structural
repairs and replacements, parking lot, utility replacements and connections, septic drainfields, or
HVAC equipment located on the Premises, the reasonable and actual cost of which exceeds
Twenty-Five Thousand Dollars ($25,000.00) in the last two (2) years of the Base Term or
Twelve Thousand Five Hundred Dollars ($12,500.00) in the last year of the Base Term. Any
credit due Tenant pursuant to the terms hereof shall be paid by Landlord to Tenant within thirty
(30) days after the expiration of the Term of this Lease.
The Premises shall be returned to Landlord at the termination or expiration of this Lease
in good condition, ordinary wear and tear and insured casualty excepted, Landlord agreeing that
Tenant's failure to make a capital expenditure for an item described in this paragraph not
approved by Landlord shall not be a breach of Tenant's obligation to leave the Premises in good
condition, ordinary wear and tear and insured casualty excepted.
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For as long as Tenant is not in default of any of the terms and conditions of this Lease
beyond any applicable grace or cure period, Landlord hereby assigns to Tenant all building
contractor, subcontractor, and manufacturer's warranties and guarantees applicable to the
Premises; and Landlord shall cooperate with Tenant at Tenant's request in any action to enforce
such warranties and guarantees.In the event of destruction of the Premises by fire or casualty,
the condition of the Premises upon termination of this Lease shall be governed by Section 12.
(b)Obligation to Keep the Premises Clear.Tenant shall keep the Premises,
including sidewalks adjacent to the Premises and loading area allocated for use of Tenant, clean
and reasonably free from rubbish and debris at all times. Tenant shall store all trash and garbage
within the Premises and arrange for regular pickup and cartage of such trash and garbage at
Tenant's expense.
15. LANDLORD'S USE OF PREMISES.In the event Landlord owns real estate
adjacent to the Premises that is not necessary for the operation of a convenience food store by
Tenant, Landlord reserves the right further to develop such property and lease the same to other
parties; provided, however, that Landlord must first obtain approval of such development and
lease from Tenant, which approval will not be unreasonably withheld, conditioned, or delayed.
16. NO COMPETITION. Except as hereinafter provided, so long as this Lease is in
effect and Tenant is not in default beyond any applicable grace or cure period, Landlord agrees
that neither it nor any of its Affiliates (as hereinafter defined) will engage, directly or indirectly,
in the operation of, or own or lease or have any interest of any kind, in any convenience store or
retail gas station business located within a three (3) mile radius of the Premises (the "Restricted
Area").As used herein, "Affiliate" shall mean, with respect to any Person (as defined in the
Asset Purchase Agreement), any Person which, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, Landlord and shall
further include Kirk J. Bradley and Frank E. Proctor.Landlord further agrees that during the
Term of this Lease, neither Landlord nor any Affiliate will lease, as landlord, or sell any real
estate within the Restricted Area for use as a convenience store and/or for retail gasoline sales
without first giving written notice to Tenant of such sale or lease and hereby grants to Tenant a
right of first refusal with respect to such sale or lease.Landlord shall set forth in detail in its
notice of any such sale or lease the terms of such sale or lease that Landlord has agreed to accept
from a third party.Tenant shall, within thirty (30) days of receipt of such notice, advise
Landlord, in writing, if Tenant elects to exercise its right of first refusal with respect to such
identified store site and whether it elects to lease or purchase such site.If Tenant does not
exercise the right of first refusal as to such identified store site, Landlord may sell or lease such
identified store site to a third party on terms no less favorable than offered to Tenant, provided
that Landlord may retain no interest in such identified store site which would be a violation of
this no competition agreement.If Tenant exercises its right of first refusal with respect to any
such sale or lease, Tenant shall proceed to purchase or lease the site in question upon the terms
and conditions set forth in Landlord's notice of any such sale or lease. Notwithstanding anything
to the contrary in this Lease, the foregoing restrictions on competition shall not apply to (a) any
existing involvement by Landlord or any Affiliate at the locations identified on Schedule I
attached hereto and incorporated herein by reference; (b) any site for which Tenant did not
exercise its right of first refusal as provided above; and (c) the Premises, if this Lease is
terminated by Tenant or is terminated by Landlord as a result of Tenant's default hereunder.
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17. QUIET POSSESSION.It is a further condition of this Lease that Landlord has a
good and marketable title to the Premises free and clear of all liens and encumbrances subject to
certain mortgages, restrictions, easements of record (provided, however, Tenant's leasehold being
subject to any mortgages is conditioned upon Landlord obtaining the Non-Disturbance
Agreement (as hereinafter defined) and Tenant's leasehold being subject to any restrictions and
easements of record is conditioned upon Tenant's prior approval of such restrictions and
easements of record); that Landlord has the right to lease the same; that as of the Base Term
Commencement Date, the Premises has unencumbered access to a public right of way over
existing curb cuts on the Premises or over unencumbered private easements benefiting the
Premises; that Landlord warrants and will defend the Premises unto Tenant against the lawful
claims of all persons whomsoever; that so long as the rents are paid in the manner herein
provided and the covenants, conditions, and agreements are all and singularly kept, fulfilled, and
performed by Tenant, Tenant shall lawfully, peacefully, and quietly hold, occupy, and enjoy the
Premises during the Term without any let, hindrance, ejection, or molestation by Landlord or any
person claiming under Landlord.
18. RIGHT OF ENTRY. Landlord reserves the right during the Term of this Lease to
enter the Premises at reasonable hours upon prior reasonable notice (except in the event of an
emergency, meaning imminent threat of injury to person or damage to property, in which event
no prior notice shall be necessary), to show the same or inspect the same, but has no obligation to
make an inspection of the Premises.
19. SUBLETTING AND ASSIGNMENT. Tenant may sublet the Premises or assign its
interest in this Lease with the prior written consent of Landlord, such consent not to be
unreasonably withheld, conditioned, or delayed.
Consent by Landlord to one assignment, subletting, occupation, or use by another person
or party shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation, or use by another person or party except for a re-assignment to Tenant, which shall
not require Landlord's consent.Consent to an assignment and acceptance of rent from an
assignee shall not release Tenant from liability for the continued performance of the terms and
conditions on the part of Tenant to be kept and performed, unless Landlord specifically releases
Tenant from said liability in writing.
Any assignee or sub-tenant, by an instrument in writing in recordable form, shall assume
and agree to keep, observe, and perform all of the agreements, conditions, covenants, and terms
of this Lease on the part of Tenant to be kept, observed, and performed.This shall include a
leasehold mortgagee in the event a leasehold mortgagee or its Nominee (as hereinafter defined)
comes into possession of the Premises. "Nominee" means an entity designated by a leasehold
mortgagee to become the tenant under this Lease in place of Tenant as a result of the exercise by
a leasehold mortgagee of its rights and remedies under any leasehold mortgage or under this
Lease pursuant to the terms of this Lease.
Notwithstanding anything hereinabove contained to the contrary, provided there is no
uncured event of default under this Lease, Tenant may, without Landlord's consent, but subject
to such consent as may be required by any underlying lease, (a) assign, transfer, or sublet its
leasehold interest to a corporation, partnership, limited liability company, or other entity more
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than fifty percent (50%) of the ownership of which is owned by Tenant, or to a corporation,
partnership, limited liability company, or other entity which owns more than fifty percent (50%)
of the ownership interest in Tenant, (b) assign its interest in this Lease as collateral in connection
with financing of equipment, fixtures, appliances, machinery, or furnishings to be used in
connection with its business on the Premises, (c) assign or mortgage this Lease or interest therein
as collateral in connection with any of Tenant's financing or refinancing, or (d) assign its
leasehold interest or sublet the Premises in connection with a sale of all or substantially all of the
assets of Tenant; provided, unless Tenant is released of its obligations and liabilities under this
Lease as provided in the next paragraph, such assignment, transfer or subletting shall not release
Tenant from the continued performance of the terms and conditions on the part of Tenant to be
kept and performed hereunder. Moreover, the sale, pledge, or other transfer or conveyance of
Tenant's capital stock, whether publicly or privately held, shall not be construed as an
assignment by Tenant of its interest in this Lease.
In the event of an assignment, sublease, or transfer to an entity the creditworthiness of
which and the ability and willingness to assume the environmental obligations under Section 5 of
which are reasonably acceptable to Landlord and the reputation of which with respect to its
operation of a business of the type then conducted at the Premises is reasonably acceptable to
Landlord as evidenced by the written approval of Landlord as hereinafter provided, Tenant shall
be released of all liability under this Lease accruing on and after the effective date of such
assignment, sublease, or transfer as evidenced by the written consent of Landlord thereto.If
Landlord shall not have responded to Tenant's request for release of its liability under this Lease
within thirty (30) days after Landlord's receipt of Tenant's request, Landlord shall be deemed to
have approved the assignee, sublessee, or transferee and to have agreed to the release of Tenant's
continuing liability under this Lease. Notwithstanding anything to the contrary in this Lease, in
the event of an assignment of Tenant's interest in this Lease, Tenant shall have no liability for the
obligations of the tenant under this Lease arising after the expiration of the then current Term.
Tenant shall notify Landlord in writing of the occurrence of any of the foregoing events, and
shall provide a true and correct copy of the sublease or assignment and assumption agreement,
together with such other documentation supporting or evidencing said event as may be
reasonably requested by Landlord.Such assignment, transfer, or subletting shall not release
Tenant from liability for the continued performance of the terms and conditions on the part of
Tenant to be kept and performed, including, without limitations, the terms and conditions under
Section 5 hereof, unless Landlord specifically releases Tenant from said liability in writing or
unless Landlord is deemed to have approved the assignee, sublessee, or transferee as provided in
this paragraph.
Landlord may at any time during the Term assign its interest in this Lease Agreement
without consent of Tenant. Landlord shall promptly notify Tenant in writing of the identity and
address of the assignee and Landlord shall cause the assignee to notify Tenant in writing of the
address for payment of rent.
Landlord shall execute and deliver to Tenant, within thirty (30) days after receipt of
Tenant's request, an estoppel certificate or other statement to be furnished to any prospective
assignee,sublessee,or lender of Tenant.Such estoppel certificate or statement shall
acknowledge and certify each of the following matters, to the extent each may be true:(a)
whether there have been any amendments, modifications, or supplements of any kind to the
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Lease; (b) that this Lease is in full force and effect; (c) that Tenant is not in violation of or in
default under the Lease beyond any applicable grace or cure period and that Landlord has no
claims against Tenant thereunder; (d) the commencement and expiration dates (including all
renewals and extensions) of the Term of this Lease; (e) the date through which Rent has been
paid; (I) that Landlord consents to such assignment or subletting; and (g) such other matters as
Tenant or its assignee, sublessee, or mortgagee may reasonably request.
20. SURRENDER UPON TERMINATION OF LEASE.Subject to the provisions of
Sections 5 and 6 hereof, Tenant shall on the expiration or the sooner termination of the Term of
this Lease surrender to Landlord the Premises, including all buildings, replacements, changes,
additions, and Improvements constructed or placed by Tenant thereon, except for all moveable
trade fixtures, equipment, and personal property belonging to Tenant, broom-clean, free of
subtenancies, and in good condition and repair, reasonable wear and tear and insured casualty
excepted. Any equipment, trade fixtures, or personal property belonging to Tenant or any sub-
tenant,if not removed within thirty (30) days after such expiration or termination, shall
automatically become the property of Landlord without any payment or offset therefor and
Tenant shall thereafter be relieved of any and all responsibility in connection with said
equipment.If said equipment is removed, Tenant promptly shall restore the Premises to its
condition immediately prior to the removal of such property to the extent commercially
practicable. Tenant shall repair any damage to the Premises caused by the foregoing removal of
Tenant's property.
At or prior to expiration or termination of the Term of this Lease, Tenant shall remove
any exterior signage which is a trademark, logo, or identifying feature of Tenant or any other
trademark, logo, or identifying feature owned by Tenant or any of its affiliates or subsidiaries.
Tenant shall not be obligated to remove facades or other architectural elements that might be
construed as a trademark, logo, or other identifying feature of Tenant or any of its affiliates or
subsidiaries.If said signage is removed, Tenant, at its own expense, promptly shall repair and
restore the Premises to its condition immediately prior to the removal of such signage to the
extent commercially practicable.
21. DEFAULT.
(a)Event of Default. The occurrence of any of the following events (each an
"Event of Default" after expiration of any applicable grace or cure period) shall constitute a
default by Tenant:
(i)Failure by Tenant to pay rent when due.Notwithstanding the
foregoing, or any other provision in this Lease to the contrary, for not more than two (2)
occasions during any Lease Year, if any rental is not received when due, Landlord shall
notify Tenant, in writing, and Tenant shall have five (5) days from the date of receipt of
Landlord's notice to cure any such failure to pay rental.If such rental is not received by
Landlord within the five (5) day period after Tenant's receipt of Landlord's notice, then
Tenant shall be in default.
(ii)Failure by Tenant to perform or comply with any provision of this
Lease (other than as set forth in Section 21(a)(i) above) if failure is not cured within thirty
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(30) days after receipt of notice from Landlord to Tenant describing such failure.If,
however, the failure cannot reasonably be cured within such cure period, Tenant shall not
be in default of this Lease if Tenant commences to cure the failure within such cure
period and diligently and in good faith continues to cure the failure.In addition, if the
only mechanism by which a failure could be cured would be the filing of a claim under
Landlord's policy of title insurance, if any, then Landlord and Tenant shall work in
concert in the filing of such a claim, and Tenant shall not be in default of this Lease if
such a claim is actually filed and ultimately paid or otherwise settled by the insurer (to
the reasonable satisfaction of Landlord) and Landlord is thus made whole.
(iii)To the extent permitted by applicable law, a general assignment by
Tenant for the benefit of creditors, or the filing by or against Tenant of any proceeding
under any insolvency or bankruptcy law, unless in the case of a proceeding filed against
Tenant the same is dismissed within ninety (90) days, or the appointment of a trustee or
receiver to take possession of all or substantially all of the assets of Tenant, unless
possession is restored to Tenant within ninety (90) days, or any execution or other
judicially authorized seizure of all or substantially all of Tenant's assets located upon the
Premises or of Tenant's interest in this Lease, unless such seizure is discharged within
thirty (30) days.
(b)Landlord's Remedies. Landlord shall have all rights and remedies at law
or in equity, including, but not limited to, the right to re-enter the Premises, and/or to terminate
the Lease and recover damages resulting from the loss of the rent and other payments due from
Tenant under this Lease to the extent allowed under applicable law together with its reasonable
attorneys' fees actually incurred and costs, and, to the maximum extent provided by law,
Landlord shall have the right to terminate any and all subleases, licenses, concessions, or other
consensual arrangements for possession entered into by Tenant and affecting the Premises or, in
Landlord's sole discretion, may succeed to Tenant's interest in such subleases, licenses,
concessions, or arrangements in the licenses, concessions, or arrangements.In the event of
Landlord's election to succeed to Tenant's interest in any such subleases, licenses, concessions,
or arrangements, Tenant shall have no further right to or interest in the rent or other
consideration receivable thereunder as of the date of notice by Landlord of such election.
(c)Late Charge.If Tenant fails to pay within five (5) days when due any
payment of rent or other charges which Tenant is obligated to pay to Landlord under this Lease,
there shall be a late charge of Seventy-Five Dollars ($75.00). Landlord and Tenant agree that
this sum is reasonable to compensate Landlord for accounting and administrative expenses
incurred by Landlord.In addition to the late charge, any and all rent or other charges which
Tenant is obligated to pay to Landlord under this Lease which are unpaid shall bear interest at
the rate set forth below from the date said payment was due until paid, said interest to be payable
by Tenant as additional rent.Landlord and Tenant agree that this sum is reasonable to
compensate Landlord for the loss of the use of funds.
(d)Right of Landlord to Re-Enter.In the event of any termination of this
Lease, Landlord shall have the immediate right to enter upon and repossess the Premises, and
any personal property of Tenant may be removed from the Premises and stored in any public
warehouse at the risk and expense of Tenant.
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(e)Surrender of Premises. No act or thing done by Landlord or any agent or
employee of Landlord during the Term shall be deemed to constitute an acceptance by Landlord
or a surrender of the Premises unless such intent is specifically acknowledged in a writing signed
by Landlord. The delivery of keys to the Premises to Landlord or any agent or employee of
Landlord shall not constitute a surrender of the Premises or effect a termination of this Lease,
whether or not the keys are thereafter retained by Landlord and, notwithstanding such delivery,
Tenant shall be entitled to the return of such keys at any reasonable time upon request until this
Lease shall have been terminated properly. The voluntary or other surrender of this Lease by
Tenant, whether accepted by Landlord or not, or a mutual termination hereof, shall not work a
merger, and at the option of Landlord shall operate as an assignment to Landlord of all subleases
or subtenancies affecting the Premises.Nothing in this subparagraph shall be construed to
automatically extend the Term beyond the Base Term or applicable Renewal Term.
(f)Interest Charges. Any amount not paid by one party to the other within
ten (10) days of when due to the other party will bear interest from the date due at the rate per
annum of the Prime Rate as appearing in the Money Rates section of The Wall Street Journal
plus two percent (2%).
(g)Tenant's Default. If Tenant is in default under this Lease, then:
For so long as Landlord does not terminate Tenant's right to
possession of the Premises, if Tenant obtains Landlord's consent, Tenant will have the
right to assign or sublet its interest in the Lease, but Tenant will not be released from
liability;
(ii)No structural changes to the Improvements at any cost shall be
permitted without the prior written approval of Landlord; and
(iii)All costs to remove Tenant's names, logos,signs,or other
identification on the Premises shall be paid by Tenant whether or not Landlord
terminated this Lease.
(h)Default by Landlord.Landlord shall be in default if Landlord fails to
perform any provision of this Lease required of it and the failure is not cured within thirty (30)
days after Landlord's receipt of notice from Tenant describing such failure.If, however, the
failure cannot reasonably be cured within the cure period, Landlord shall not be in default under
this Lease if Landlord commences to cure the failure within the cure period and diligently and in
good faith continues to cure the failure.Notices given under this Section shall specify the
alleged breach and the applicable Lease provisions.If Landlord shall at any time be in default
beyond the applicable notice and cure period, Tenant shall have the right to cure such default on
Landlord's behalf. Any sums expended by Tenant in doing so, and all reasonably necessary
incidental costs and expenses incurred in connection therewith, including reasonable attorneys'
fees actually incurred at customary hourly rates, shall be payable by Landlord to Tenant within
thirty (30) days following demand therefor by Tenant, and if Landlord shall not have paid such
sums to Tenant within ninety (90) days after demand therefor, Tenant shall be entitled to deduct
or offset such sums against any rent otherwise payable to Landlord under this Lease.
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22. CONDEMNATION.
(a)Condemnation Damages. In the event of the taking or conveyance of the
whole or any part of the Premises by reason of condemnation ("Condemnation") by any public
authority (including condemnation proceedings or conveyances or dedications made in
settlement of or in lieu of condemnation proceedings), Landlord shall be entitled to the entirety
of the damages award ("Award") payable in connection with any Condemnation, provided,
however, Landlord shall not make a claim for any of the following (collectively, "Tenants
Damages"):
A sum attributable to Tenant's leasehold improvements or
alterations made to the Premises by Tenant in accordance with this Lease;
(ii)Any portion of the Award attributable to the Petroleum Equipment
or Tenant's Personal Property which are to remain in the Premises as a result of such
taking;
(iii)Any portion of the Award attributable to:(A) removing the
Petroleum Equipment or Tenant's Personal Property and inventory; and (B) moving and
relocation expenses; and
(iv)Any portion of the Award attributable to a temporary construction
easement or temporary right of way, i.e., an easement or right of way that will expire
pursuant to its terms upon completion of the Condemnation project.
(b)Net Award. Restoration; Rent Reduction. Landlord and Tenant shall work
in good faith jointly to pursue all damages available in connection with the Condemnation. As
used herein, the term "Net Award" shall mean the entire Award payable in connection with a
Condemnation, less (i) the actual and reasonable expenses incurred by Landlord in pursuing and
collecting the Award, such as expert witness fees,appraisals, attorneys fees, surveys, or
engineering studies such as traffic studies; and (ii) that portion of the Award to be paid over to
Tenant in connection with Condemnation Restoration (as defined below) of the Premises.
Unless Tenant terminates this Lease pursuant to Section 22(c) below, Tenant, to the
extent proceeds from the Award sufficient to pursue restoration of the Premises and of Tenant's
Petroleum Equipment and Tenants Personal Property damaged by the Condemnation are made
available to Tenant,shall commence and diligently pursue completion of restoration
("Condemnation Restoration") of the Premises as a result of a Condemnation as nearly as
possible to its value, condition, and character immediately prior to the Condemnation. Landlord
shall pay over to Tenant an amount from the Award equal to the actual and reasonable costs of
Condemnation Restoration of the Premises within ten (10) business days of receipt of evidence
of completion of same from Tenant.
The entirety of the Net Award shall be retained by Landlord; provided, however,
effective on the date upon which Landlord receives the Award from the condemning authority,
Landlord and Tenant shall enter into an amendment to this Lease setting forth that the annual
rent due under this Lease after such date shall be equitably reduced.
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(c)Termination of Lease Due to Condemnation.In the event that the
Condemnation materially adversely affects the use of the Premises as defined in Section 8 or in
the event the proceeds of the Award made available to Tenant are insufficient to commence and
complete the Condemnation Restoration, Tenant may terminate this Lease by giving Landlord
sixty (60) days' written notice of its intention to terminate this Lease after receiving notice of the
Condemnation from the condemning authority. The effective date of the termination shall be the
earlier of the actual date of when construction on and materially affecting the Premises
commences or Tenant's removal from the Premises.In the event Tenant exercises its right to
terminate this Lease as set forth herein:(i) Landlord and Tenant shall work jointly in good faith
to seek the maximum damages from the condemning body caused by the Condemnation;
provided, however, Landlord shall not make a claim in such proceedings in connection with
Tenant's Damages; and (ii) the rent for the last month of Tenant's occupancy shall be prorated
and Landlord shall refund to Tenant any rent paid in advance and Tenant shall thereupon be
released from its obligation to pay rent.
23. RIGHT OF FIRST REFUSAL. If Landlord, at any time during the Term of this Lease
or any Renewal Term hereof, receives any bona fide offer from a third party to purchase the
Premises, and any such offer is acceptable to Landlord, Landlord agrees to notify Tenant in
writing, giving the name and address of the offeror and the price, terms, and conditions of such
offer, and Tenant shall have thirty (30) business days from and after the receipt of such notice
from Landlord in which to elect to purchase the Premises on the terms and conditions contained
in said bona fide offer. If Tenant does not elect to purchase, and Landlord sells the Premises to
the third party making such offer, then the purchaser shall take the Premises subject to and
burdened with all the terms, provisions, and conditions of this Lease, and the rights of Tenant
under this Lease as against the new owner shall not be lessened or diminished by reason of the
change of ownership.If Tenant purchases the Premises, then contemporaneously with the
conveyance of the property to Tenant this Lease shall terminate, without further notice, and
Tenant shall thereupon be released and discharged from all future rentals and other obligations on
the part of Tenant to be paid, kept, and performed arising or accruing after the date Tenant
purchases the Premises, except any and all environmental obligations imposed on Tenant under
Section 5.If Tenant purchases the Premises, Landlord agrees to execute a termination of this
Lease in recordable form terminating this Lease as contemplated in the preceding sentence as of
the date of Tenant's purchase of the Premises.
24. LEASEHOLD MORTGAGES.
(a)Tenant shall have the right to enter into any recordable leasehold mortgage
to the extent the same is solely limited to the leasehold interest of Tenant and does not increase
the rights of the leasehold mortgagee beyond the leasehold interest of Tenant in the Premises.
Notwithstanding the foregoing, except as otherwise provided herein:(i)it is expressly
understood that Landlord's consent to the execution and recordation of a leasehold mortgage by
Tenant does not constitute approval by Landlord of any of the provisions of the leasehold
mortgage; and (ii) if there is a conflict between the leasehold mortgage and this Lease, the terms
of this Lease shall control.
(b)If Tenant, or Tenant's successors or assignees, mortgages or grants to a
leasehold mortgagee or lender a security interest in Tenant's interest in this Lease and the
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Premises, and if the leasehold mortgagee or lender sends to Landlord a true copy of the leasehold
mortgage or security agreement executed in connection therewith together with a written notice
specifying such mortgagee's or lender's name and address, so long as such leasehold mortgage
or security agreement shall remain unsatisfied of record or until written notice of satisfaction is
given by the holder to Landlord, the following provisions shall apply:
(i)There shall be no cancellation, surrender, acceptance or surrender,
amendment, or modification of this Lease by joint action of Landlord and Tenant, or by
Tenant alone, without in each case, written notice to the holder.Nor shall any merger
result from the acquisition by, or devolution upon, any one entity of the fee and the
leasehold estates of the Premises.
(ii)Landlord shall, upon serving Tenant with any notice or other
communication, whether of default or any other matter, simultaneously serve a copy of
such notice upon the holder. However, Landlord's failure to deliver such notice to the
holder shall not constitute a default or breach by Landlord under this Lease.
Nevertheless, Landlord may not undertake any action to enforce any of its rights under
this Lease and in connection with the notice given to Tenant unless and until a copy of
the same is served upon the holder.
(iii)In the event of any default by Tenant under this Lease, the holder
shall have, after service of notice of such default upon the holder, the same period to
remedy or cause to be remedied the default complained of as Tenant has under this Lease,
and Landlord shall accept such performance by or at the instigation of the holder as if the
same had been rendered by Tenant. Each notice of default given by Landlord shall state
the amounts of rent and whatever other payments are being claimed to be in default.
(iv)Landlord agrees that (y) the holder shall have the right, but not the
obligation, to remedy any default by Tenant under this Lease by performing any
applicable term, covenant, condition, or agreement of this Lease, and (z) Landlord shall
accept such performance by the holder with the same force and effect as if furnished by
Tenant, subject to and in accordance with the provisions of this Lease.
(v)Not more than twice during any calendar year, Landlord, within ten
business (10) days after a request in writing by Tenant or the holder, shall furnish a
written statement, duly acknowledged, that this Lease is in full force and effect and that
there are no defaults thereunder by Tenant, or if there are any defaults, such statement
shall specify the defaults Landlord claims to exist, and that this Lease has not been
modified or changed, or if there have been such modifications or changes, Landlord shall
provide a complete copy thereof to the holder.
(vi)Landlord hereby consents to:(w) holder's foreclosure of a
leasehold mortgage, (x) any sale of Tenant's interest in this Lease and the Premises in
connection with a foreclosure, whether by judicial proceedings or by virtue of any power
of sale contained in the leasehold mortgage, (y) any conveyance of Tenant's interest in
this Lease and the Premises from Tenant to the holder, or its nominee or designee, by
virtue of or in lieu of foreclosure or other appropriate proceedings, and (z) if holder, or its
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nominee or designee, becomes the holder of Tenant's interest in this Lease and the
Premises, the conveyance of such interest by holder, or its nominee or designee, to: (A) to
another creditworthy convenience store operator that meets Landlord's approval, which
approval shall not be unreasonably conditioned, delayed, or denied, and will be based
upon Landlord's customary review and evaluation of the prospective tenant, or (B) any
other conveyance in accordance with the terms of the assignment provisions of the then
lease (which shall be the same as those contained in this Lease, except that all obligations
and liabilities of the holder, or its nominee or designee, under such lease shall cease and
terminate upon such assignment).
(c)Anything herein contained notwithstanding,while such leasehold
mortgage remains unsatisfied of record, or until written notice of satisfaction is given by the
holder to Landlord, if any default shall occur which, pursuant to any provision of this Lease,
entitles Landlord to terminate this Lease, and if before the expiration of ten ( 1 0) business days
after the date of receipt of service of notice of termination upon such leasehold mortgagee, such
leasehold mortgagee shall have notified Landlord of its desire to nullify such notice and shall
have paid to Landlord all rent and other payments herein provided for, and then in default, and
shall have complied or shall have commenced the work of complying with all of the other
requirements of this Lease, if any are then in default, and shall prosecute the same to completion
with reasonable diligence, then in such event Landlord shall not be entitled to terminate this
Lease and any notice of termination theretofore given shall be void and of no effect.
(d)The proceeds from any insurance policies or arising from a condemnation
of Tenant's interest in the Premises are to be held by any leasehold mortgagee and distributed
pursuant to the provisions of this Lease, but the leasehold mortgagee may reserve rights to apply
to the mortgage debt all, or any part, of Tenant's share of such proceeds pursuant to such
mortgage.
(e)The leasehold mortgagee shall be given notice of any arbitration
proceedings by the parties hereto, and shall have the right to intervene therein and be made party
to such proceedings, and the parties hereto do hereby consent to such intervention.In the event
that the leasehold mortgagee shall not elect to intervene or become party to such proceedings, the
leasehold mortgagee shall receive notice of, and a copy of, any award or decision made in said
arbitration proceedings.
(f)The term "mortgage," whenever used herein, shall include whatever
security instruments are used in the locale of the Premises, such as, without limitation, deeds to
secure debt, deeds of trust, and conditional deeds, as well as financing statements, security
agreements, and other documentation required pursuant to the Uniform Commercial Code. The
term "mortgage", whenever used herein, shall also include any instrument required in connection
with a sale-leaseback transaction.
25. SUBORDINATION, ATTORNMENT, AND ESTOPPEL.
(a)Subject to and conditioned upon the full satisfaction of all other provisions
of this Lease, including, without limitation, the requirements of Sections 11 and 12 hereof, and
further subject to the provisions of this Section 25, this Lease and the leasehold estate created
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hereby shall be, at the option and upon written declaration of Landlord, subject, subordinate, and
inferior to the lien and estate of any mortgages and all renewals, extensions, or replacements
thereof, now or hereafter imposed by Landlord upon the Premises; provided, however, that this
Lease shall not be subordinate to any mortgage or any renewal, extension, or replacement
thereof, unless and until Landlord provides Tenant with an agreement (the "Non-Disturbance
Agreement"), signed and acknowledged by each holder of any such mortgage setting forth that
so long as Tenant is not in default hereunder beyond any applicable grace or cure period,
Landlord's and Tenant's rights and obligations hereunder shall remain in force and Tenant's
right to possession shall be upheld. Tenant shall, promptly following a request by Landlord and
after receipt of the Non-Disturbance Agreement, execute and acknowledge any subordination
agreement or other documents reasonably required to establish of record the priority of any such
encumbrance over this Lease, so long as such agreement does not otherwise increase Tenant's
obligations or diminish Tenant's rights hereunder.
(b)In the event of foreclosure of any mortgage, whether superior or
subordinate to this Lease, then (i)this Lease shall continue in force;(ii) Tenant's quiet
possession shall not be disturbed if Tenant is not in default hereunder beyond any applicable
grace or cure period; (iii) Tenant shall attom to and recognize the mortgagee or purchaser at
foreclosure sale (the "Successor Landlord") as Tenant's landlord for the remaining Term of this
Lease; and (iv) the Successor Landlord shall not be bound by (a) any payment of rent for more
than one (1) month in advance; (b) any amendment, modification, or ending of this Lease
without the Successor Landlord's consent after the Successor Landlord's name is given to
Tenant, unless the amendment, modification, or ending is specifically authorized by the original
Lease and does not require Landlord's prior agreement or consent; and (c) any liability for any
act or omission of a prior landlord, including Landlord.At the request of the Successor
Landlord, Tenant shall execute a new lease for the Premises, setting forth all of the provisions of
this Lease except that the term of the new lease shall be for the balance of the Term of this
Lease.
(c)Tenant shall execute and deliver to Landlord, within thirty (30) days after
receipt of Landlord's request, any estoppel certificate or other statement to be furnished to any
prospective purchaser of or any lender against the Premises.Such estoppel certificate shall
acknowledge and certify each of the following matters, to the extent each may be true:(i) that
this Lease is in effect and not subject to any rental offsets, claims, or defenses to its enforcement;
(ii) the commencement and termination dates of the Term; (iii) that Tenant is paying rent on a
current basis; (iv) that this Lease constitutes the entire agreement between Tenant and Landlord
relating to the Premises; (v) that Tenant has accepted the Premises and is in possession thereof;
(vi) that this Lease has not been modified, altered, or amended except in specified respects by
specified instruments; (vii) that Tenant has no notice of any prior assignment, hypothecation, or
pledge of rents or the Lease; and (viii) that neither Tenant nor, to the knowledge of Tenant,
Landlord is in default under this Lease beyond any applicable cure or grace period. Tenant shall
also, upon request of Landlord, certify and agree for the benefit of any lender against the
Premises ("Lender") that Tenant will not look to such Lender:(a) as being liable for any act or
omission of Landlord; (b) as being obligated to cure any defaults of Landlord under this Lease
which occurred prior to the time Lender, its successor or assigns, acquired Landlord's interest in
the Premises by foreclosure or otherwise; (c) as being bound by any payment of rent or
additional rent by Tenant to Landlord for more than one (1) month in advance; or (d) as being
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bound by Landlord to any amendment or modification of this Lease pertaining to Rent, the Term,
or the environmental liability, insurance, or assignment and subletting provisions of this Lease
without Lender's written consent.
26. APPLICATION OF INSURANCE PROCEEDS BY LANDLORD'S MORTGAGEE.
(a)In the event that Landlord mortgages its title to or interest in the Premises,
then Landlord may request that the name of Landlord's mortgagee be added in addition to
Landlord's name to any and all policies of insurance required to be carried by Tenant hereunder.
(b)As a condition precedent to Tenant's obligations under Sections 12 and 25
hereof, Landlord shall cause Landlord's mortgagee to endorse, transfer, and otherwise make over
to Tenant the check or negotiable instrument representing the net amount of all insurance
proceeds received by Landlord's mortgagee for the purposes specified in Section 12 hereof, and
shall further cause Landlord's mortgage or collateral document to provide for such endorsement
or transfer in a manner not inconsistent with the provisions of this Lease; provided, however, that
Landlord's mortgagee may reserve the right to apply to the mortgage debt any part of such
insurance proceeds after all Tenant's costs and expenses of the Restoration have been paid.
27. TENANT'S RIGHT OF SUBSTITUTION. In the event Tenant has determined that
the Premises is no longer economically viable, and either has ceased business operations at the
Premises or has made a decision to do same, then providing there are no material uncured events
of default existing under the Lease, Tenant may request that Landlord substitute for the Premises
a property ("Substitute Property") that is substantially similar and of equal or greater Value (as
defined below) than the Premises. In the event the Value of the Substitute Property exceeds the
Value of the Premises, Landlord shall have no obligation to fund any monies or pay any
consideration in connection with such increased Value.
The term "Value" for purposes of effecting a substitution under this Section shall mean
the fair market value of the Premises and Substitute Property as determined by so-called "full,
three method" appraisals ("Appraisals") prepared by an independent appraiser who is a member
in good standing as an MAI professional appraiser and who is reasonably acceptable to
Landlord.
In the event Tenant wishes to substitute a property for the Premises, Tenant shall so
notify Landlord in writing. The notice shall identify the Substitute Property, and shall include
information concerning the Metropolitan Statistical Area, demographic makeup, traffic counts,
nature and quality of the neighboring properties, age and condition of improvements, useable
land area, parking area and lot configuration. Within thirty (30) days following receipt of such
notice, Landlord shall either consent to, or, in Landlord's reasonable business judgment, reject
such substitution, for any reason, including, but not limited to, an adverse impact or effect on
Landlord's tax status,or disapproval by Landlord's mortgagee.If Landlord rejects the
substitution, it shall specify in writing to Tenant the reasons therefor. If Landlord consents to the
substitution, the parties shall cooperate with one another to effect a closing (the "Closing") of the
Substitute Property as soon as practicable.
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Landlord shall have a reasonable time within which to conduct its investigation of the
Substitute Property. Tenant, at Tenant's sole cost and expense, timely shall provide Landlord
with all documents and information reasonably requested by Landlord in connection with its
investigation of the Substitute Property, including, without limitation, aerial photograph, title
commitment and exception documents,as-built survey to Landlord's guidelines,and
environmental reports ("Third Party Reports"). Landlord shall have no obligation to take title to
the Substitute Property if Landlord reasonably disapproves any of the material reports or
documents it requests or receives in connection with its investigation of the Substitute Property.
At the Closing:
(i)Landlord shall deliver to Tenant a special or limited warranty deed
in the form customarily used in connection with commercial real property transactions in
the state in which the Premises is situated conveying to Tenant title to the Premises,
which shall be subject only to: (i) matters of record not reasonably objectionable to
Tenant; (ii) such additional matters as specifically consented to by Tenant; and (iii)
anything of record or not of record that in any way affects title to the Premises resulting
from the acts or omissions of Tenant and matters that would be shown by a then current
inspection or survey of the Premises. Landlord shall execute such documents as shall be
required to deliver good and marketable title to the Premises (subject to the foregoing
matters) to Tenant in form and substance reasonably satisfactory to the title company,
including, without limitation, a Memorandum of Termination of Lease in connection with
the Premises;
(ii)Tenant shall deliver to Landlord a special or limited warranty deed
in the form customarily used in connection with commercial real property transactions in
the state in which the Substitute Property is situated conveying to Landlord title to the
Substitute Property, and Tenant shall execute such documents as shall be required to
deliver good and marketable title to the Substitute Property to Landlord in form and
substance reasonably satisfactory to the title company;
(iii)This Lease shall be amended to delete Exhibit "A" (i.e., the legal
description of the Premises) and replace with the legal description of the Substitute
Property, and the parties thereafter shall be released from all liabilities and obligations
under this Lease with respect to the Premises, with the exception of those obligations that
survive the expiration or earlier termination of the Term of this Lease. Rent, and any
adjustments thereto, payable by Tenant under this Lease, shall continue uninterrupted and
unaltered by the substitution;
(iv)Landlord and Tenant shall execute a Memorandum of Termination
of Lease, in recordable form, in connection with the Premises. Landlord and Tenant shall
execute a Memorandum of Lease, in recordable form, in connection with the Substitute
Property. Tenant, at Tenant's expense, shall cause the Memorandum of Termination of
Lease and Memorandum of Lease to be recorded in the respective counties in which the
properties are located. The parties shall cooperate with one another, fully and in a timely
manner, in performing all further acts, and executing and delivering all further documents
31
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DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
or instruments that may be reasonably necessary or required to accomplish the purposes
of this Section; and
(v)All costs, fees and expenses incurred in connection with Tenant's
exercise of this right of substitution (including, without limitation, the Appraisals, Third
Party Reports, ALTA extended coverage policy of title insurance with reasonably
requested endorsements, deed transfer taxes, and title and escrow fees and charges) shall
be borne by Tenant, it being the intention of the parties that Landlord shall take title to
the Substitute Property and deliver title to the Premises absolutely net of all costs, fees
and expenses whatsoever.
Tenant acknowledges and agrees the Premises shall be conveyed by Landlord to Tenant
"AS IS, WHERE IS, WITH ALL FAULTS," in such condition as the same may be on the date of
Closing, without any representations or warranties by Landlord except those specifically
addressed above.
28. [Intentionally Deleted]
29. NOTICES. All notices and communications required to be sent pursuant to the terms
of this Lease shall be in writing (including facsimile, telegraphic, telex, or cable communication)
and shall be mailed, faxed, telegraphed, telexed, cabled, or delivered as follows:
By Tenant to Landlord:
Lee-Moore Oil Company
1807 Douglas Drive (Zip 27330)
Post Office Drawer 9
Sanford, North Carolina 27331
Attn: Kirk J. Bradley
By Landlord to Tenant:
The Pantry, Inc.
1801 Douglas Drive (Zip 27730)
Post Office Box 1410
Sanford, North Carolina 27331-1410
Attention: Director of Real Estate
Facsimile No.: 919-777-5139.
All notices and other communications required or permitted under this Lease which are
addressed as provided in this Section (i) if delivered personally against proper receipt or by
confirmed facsimile or telex, shall be effective upon delivery and (ii) if delivered (A) by certified
or registered mail, return receipt requested, with postage prepaid, (B) by Federal Express or
similar courier service with courier fees paid by the sender, or (C) by telegraph or cable, shall be
effective two (2) business days following the date when mailed, couriered, telegraphed or cabled,
as the case may be. The parties hereto may from time to time change their respective addresses
for the purpose of notices to that party by a similar notice specifying a new address, but no such
32
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DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
change shall be deemed to have been given until it is actually received by the party sought to be
charged with its contents.
30. BINDING EFFECT. The provisions of this Lease shall be binding on and inure to the
benefit of the parties hereto, their legal representatives, successors, and permitted assigns and
sublessees.
31. WHOLE AGREEMENT.This Lease contains all of the agreements and
representations between the parties with respect to the subject matter hereof. None of the terms
of this Lease shall be waived or modified to any extent, except by written instrument signed and
delivered by both parties.
32. SEVERABILITY.If any provision of this Lease shall be declared invalid or
unenforceable, the remainder of this Lease shall continue in full force and effect.
33. DUPLICATE COUNTERPARTS.This Lease may be executed in one or more
counterparts, each of which shall be an original and all of which shall constitute one and the same
instrument.
34. RECORDING OF LEASE. This Lease shall not be recorded. At the request of either
party and at Tenant's expense, the parties hereto shall execute a Memorandum of Lease, in
recordable form, specifying the commencement and termination dates, a description of the
Premises, and any other provisions which either party may desire to incorporate therein.
35. GOVERNING LAW. This Lease shall be governed by, and construed and enforced
in accordance with, the laws of the State of North Carolina.
36. RELATIONSHIP OF THE PARTIES. Nothing herein contained shall be deemed or
construed by the parties hereto, nor by any third party, as creating a relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being understood and
agreed that neither the method of computation of rent nor any other provision contained herein,
nor any acts of the parties hereto are other than the relationship of landlord and tenant.
Whenever herein the singular number is used the same shall include the plural, and the masculine
gender shall include the female and neuter genders.The numerical headings or titles to the
paragraphs are not a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
37. AUTHORITY. The individuals signing this Lease personally warrant that they have
the right and power to enter into this Lease on behalf of Landlord and Tenant, to grant the rights
granted under this Lease, and to undertake the obligations undertaken in this Lease.
38. INTERPRETATION PRESUMPTION. This Lease has been negotiated by the parties
hereto and by the respective attorneys for each party. The parties represent and warrant to one
another that each has, by counsel or otherwise, actively participated in the negotiation and
preparation of this Lease for execution. In the event of a dispute concerning the interpretation of
this Lease, each party waives the doctrine that an ambiguity should be interpreted against a party
who drafted the document.
33
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DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
39. TENANT SHALL NOT RENDER PREMISES LIABLE FOR ANY LIEN. Tenant
shall have no right, authority, or power to bind Landlord, or any interest of Landlord in the
Premises, nor to render the Premises liable for any lien or right of lien for the payment of any
claim for labor, material, or for any charge or expense incurred to maintain, to repair, or to make
alterations, additions, and improvements to the Premises. Tenant shall in no way be considered
the agent of Landlord in the construction, erection, modification, repair, or alteration of the
Premises.Notwithstanding the above, Tenant shall have the right to contest the legality or
validity of any lien or claim filed against the Premises.No contest shall be carried on or
maintained by Tenant after the time limits in the sale notice of the Premises for any such lien or
claim unless Tenant (i) shall have duly paid the amount involved under protest; (ii) shall have
procured and recorded a lien release bond from a bonding company acceptable to Landlord in an
amount not less than one hundred twenty-five percent (125%) of the amount involved; or (iii)
shall have procured a stay of all proceedings to enforce collection.Upon a final adverse
determination of any contest, Tenant shall pay and discharge the amount of the lien or claim
determined to be due, together with any penalties, fines, interest, cost, and expense which may
have accrued, and shall provide proof of payment to Landlord.
40. INDEMNIFICATION. Tenant shall indemnify, defend, and protect Landlord, and
hold Landlord harmless from any and all loss, cost, damage, expense, liability (including, without
limitation, court costs and reasonable attorneys' fees actually incurred at customary hourly rates)
incurred in connection with or arising at any time and from any cause whatsoever in or about the
Premises, including, without limitation, claims Tenant's business operations at the Premises,
including, without limiting the generality of the foregoing:(i) any default by Tenant in the
observance or performance of any of the terms, covenants, or conditions of this Lease on
Tenant's part to be observed or performed; (ii) the use or occupancy of the Premises by Tenant or
any person claiming by, through, or under Tenant, or of the contractors, agents, servants,
employees, visitors, or licensees of Tenant or any such person, in, on, or about the Premises,
either prior to or during the Term of this Lease (including, without limitation, any holdovers in
connection therewith), including, without limitation, any acts, omissions, or negligence in the
making or performance of any alterations.Tenant's indemnification of Landlord shall exclude
damages caused by reason of the gross negligence or willful misconduct of Landlord (or its
employees, agents, representatives, and contractors). The provisions of this Section shall survive
the expiration or sooner termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination, and shall not be limited by reason of any insurance
carried by Landlord and Tenant. The above-referenced indemnification shall not apply to matters
and obligations addressed in Section 5 of this Lease. Tenant's indemnification of Landlord with
respect to environmental matters shall be governed exclusively by Section 5 of this Lease.
41. NO CROSS DEFAULT. This Lease is one of the Seller Leases (as defined in the
Asset Purchase Agreement) contemporaneously entered into between Landlord and Tenant with
respect to certain real properties located in the State of North Carolina ("2006 Seller Leases").
Landlord agrees that each of the 2006 Seller Leases is an agreement independent of the other
2006 Seller Leases, and that an uncured default by Tenant or Landlord under any particular 2006
Seller Lease shall not constitute a default by Tenant or Landlord, as the case may be, under any
other 2006 Seller Lease as to which other 2006 Seller Lease Tenant or Landlord, as the case may
be, is not in default beyond any applicable grace or cure period.
34
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#8445674.DOC
[THIS SPACE INTENTIONALLY LEFT BLANK]
35
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
IN TESTIMONY WHEREOF, the parties hereto have caused these presents to be
executed in their respective names by their duly authorized representatives, executing this
instrument in duplicate originals, on or as of the day and year first above written.
LANDLORD:
LEE-MOORE OIL COMPANY,
a North Carolina corporation
Name:irk J. Bradley
Title: President
TENANT:
THE PANTRY, INC.,
a Delaware corporation
By:
#844567 j.DOC
Na :James D. Boswort
Title:Director,Mergers
Assistant Secretary
36
Acquisitions,and
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
EXHIBIT A
Legal Description of Land
Lying and being located in Durham County, North Carolina and more particularly described as
follows:
Beginning at a concrete right of way monument located at the intersection of the southerly right
of way line of NC Highway 54 and the easterly right of way line of Fayetteville Road as shown
on the map to which reference is hereinafter made; thence as the southerly right of way line of
NC Highway 54, South 72 deg 48 min 50 sec East 205.25 feet to an existing iron pin; thence
South 19 deg 50 min 43 sec West 146.93 feet to an existing iron pin; thence on a curve to the
right having a radius 1,030.92 feet, a chord bearing and distance of North 69 deg 47 min 43 sec
West 165.16 feet (arc distance of 165.33 feet) to a right of way monument; thence North 65 deg
12 min 08 sec West 80.60 feet to a right of way monument in the easterly right of way line of
Fayetteville Road; thence as the easterly right of way line of said Fayetteville Road, North 37
deg 11 min 31 sec East 135.58 feet to the beginning, containing .73 acres, more or less.The
above calls taken from a plat of survey prepared by Ernest E. Woods, Jr., registered surveyor,
dated May 1992, entitled "Foundation Survey for Lee Moore Oil Company" and reference is
hereby made to said map for a more perfect description of the property herein conveyed.
37
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DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
flEpill 1111
=OR REGISTRATION REGISTER OF DEEDS
Willie L. Covington
DURHAM COUNTY, NC
2006 MAY 05 04:18:53 PM
BK:5200 PG:688-693 FEE:$26.00
MEMORANDUM OF LEASE
PREPARED BY AND AFTER RECORDING RETURN TO:
Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P.
Attn: Francis C. Bagbey, Esq.
Post Office Box 2611
Raleigh, North Carolina 27602-2611
INSTRUMENT 1 20E16020094
Pantry Store No. 3780
(Formerly OtR Store No.20)
3321 Apex Highway/55 & Cornwallis Road
Durham, North Carolina
Pantry Store N6.-3781-
(Formerly OtR Store No.21)
106 N.C. 54/1-40 & Fayetteville Road
Durham, North Carolina
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
LEE-MOORE OIL COMPANY, a North Carolina corporation ("Landlord"), has leased
to THE PANTRY, INC., a Delaware corporation ("Tenant"), two parcels of land in Durham,
Durham County, North Carolina, described in Exhibit A attached hereto and incorporated herein
reference (the "Premises").Certain provisions of the lease dated -as of February 9, 2006 (the
"Lease") are as set forth below:
1.Landlord's address is:
Post Office Drawer 9
Sanford, North Carolina 27331
Attn: Kirk J. Bradley.
2.Tenant's address is:
Post Office Box 1410
Sanford, North Carolina 27331-1410
Attention: Director of Real Estate.
3.The base term of the Lease shall commence on February 9, 2006 and expire on
February 28, 2021. There are six (6) five (5) year renewal options.
11848238_4.DOC
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
4.Landlord has granted to Tenant a right of first refusal to purchase the Premises
during the term of the Lease, as set forth in the Lease.
5.The provisions set forth in the Lease and amendments, if any, are hereby
incorporated into this Memorandum of Lease by reference and made a part hereof.In the event
of conflict between the terms of this Memorandum of Lease and the terms of the Lease or any
amendment thereto, the terms of the Lease or the amendment, as the case may be, shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease
as of the 9th day of February, 2006.
LANDLORD:
LEE-MOORE OIL COMPANY,
a North Carolina corporation
ame:rk J. Bradley
Title: P -sident
STATE OF NORTH CAROLINA
COUNTY OF LEE
I, a Notary Public of Lee County, North Carolina, certify that Kirk J.
Bradley, either being personally known to me or proven by satisfactory evidence (said evidence
being A) et ), personally appeared before me this day and acknowledged that
he is President of Lee-Moore Oil Company, a North Carolina corporation, and that he, as
President being authorized to do so, voluntarily executed the foregoing on behalf of the
corporation for the purposes stated therein.
WITNESS my hand and official stamp or seal, this 10 day of February, 2006
My Commission Expires:
3 -3n --2or0
[AFFIX NOTARIAL STAMP OR SEAL]
#848238_4.DOC
Lt.-I--
Notary Public
Printed Name: If dst Wk >sqlf-
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
TENANT:
THE PANTRY, INC.,
a Delaware corpo
By:
N
(S.Thimaras-tireldir
1- -: S even ferreira
rtle: Senior
STATE OF NORTH CAROLINA
COUNTY OF LEE
ice President, Administration
I, a Notary Public of t_ ce County, North Carolina, certify that Steven J.
Ferreira, either being personally known to me or proven by satisfactory evidence (said evidence
being 11-- p,), personally appeared before me this day and acknowledged that
he is Senior Vice President, Administration of The Pantry, Inc., a Delaware corporation, and that
he, as Senior Vice President, Administration being authorized to do so, voluntarily executed the
foregoing on behalf of the corporation for the purposes stated therein.
WITNESS my hand and official stamp or seal, this h day of February, 2006
Notary Public
Printed Name:
My Commission Expires:
3-3 tp le
[AFFIX OR SEAL]
ON11111111////0
S--tb4):::10TAR
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#848238_4.DOC
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
EXHIBIT A
Legal Description
Pantry Store #3780 (formerly OtR #20)
3321 Apex Highway/55 & Cornwallis Road
Durham, North Carolina
Beginning at an iron pipe found (NC Grid coordinates Northing: 794,176.17 feet,
Easting: 2,033,133.32 feet) at the northwestern corner of now or formerly, Southern Equipment
Company, Inc. as recorded in Deed Book 388, Page 791 in the Durham County Register of
Deeds, said iron pipe found also being a point in the eastern margin of NC Highway 55 (Apex
Highway); thence along the eastern margin of NC Highway 55 (Apex Highway) North 08 degrees
02 minutes 06 seconds East 332.87 feet to a concrete monument; thence North 80 degrees 17
minutes 06 seconds East 25.42 feet to a point in the western margin of Cornwallis Road; thence,
along the western margin of Cornwallis Road, South 27 degrees 27 minutes 54 seconds East
357.23 feet to a point at the intersection of the western margin of Cornwallis Road and the
western margin of the Durham and Southern right-of-way; thence along the western margin of
the Durham and Southern right-of-way, South 13 degrees 58 minutes 06 seconds West 50.06
feet to a point at the northeastern corner of said Southern Equipment Company, Inc.; thence,
along the northern line of said Southern Equipment Company, Inc. North 8ldegrees 57 minutes
54 seconds West 226.48 feet to the place and point of beginning, containing 48,518 square feet
(1.114 acres), more or less.
/4848238 J.DOC
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
EXHIBIT A
Legal Description
Pantry Store #3781 (formerly OtR #21)
106 N.C. 54/1-40 & Fayetteville Road
Durham, North Carolina
Lying and being located in Durham County, North Carolina and more particularly described as
follows:
Beginning at a concrete right of way monument located at.the intersection of the southerly right
of way line of NC Highway 54 and the easterly right of way line of Fayetteville Road as shown
on the map to which reference is hereinafter made; thence as the southerly right of way line of
NC Highway 54, South 72 deg 48 min 50 sec East 205.25 feet to an existing iron pin; thence
South 19 deg 50 min 43 sec West 146.93 feet to an existing iron pin; thence on a curve to the
right having a radius 1,030.92 feet, a chord bearing and distance of North 69 deg 47 min 43 sec
West 165.16 feet (arc distance of 165.33 feet) to a right of way monument; thence North 65 deg
12 min 08 sec West 80.60 feet to a right of way monument in the easterly right of way line of
Fayetteville Road; thence as the easterly right of way line of said Fayetteville Road, North 37
deg 11 min 31 sec East 135.58 feet to the beginning, containing .73 acres, more or less.The
above calls taken from a plat of survey prepared by Ernest E. Woods, Jr., registered surveyor,
dated May 1992, entitled "Foundation Survey for Lee Moore Oil Company" and reference is
hereby made to said map for a more perfect description of the property herein conveyed.
#848238_4.DOC
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
WILLIE L. COVINGTON
REGISTER OF DEEDS, DURHAM COUNTY
DURHAM COUNTY COURTHOUSE
200 E MAIN STREET
DURHAM, NC 27701
PLEASE RETAIN YELLOW TRAILER PAGE
It is part of recorded document, and must be submitted with original for re-recording
and/or cancellation.
Filed For Registration:05/05/2006 04:18:53 PM
Book:RE 5200 Page: 688493
Document No.:2006020094
MEMO 6 PGS $26.00
Recorder:APRIL J WILLIAMS
111111111111111111111111111111111111111111111111111111111111
2006020094
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
N.C.
H
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5
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CIRCLE K
#2723781
FA
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B
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DIE
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SB-1
SMW-1/MW-1
SMW-2/MW-2
ABANDONED
= SOIL BORING
= OBSERVAION WELL
~60 ft
~50 ft
~35 ft
~20 ft
MW-4
DW-1
MW-3
MW-2
No wells in
this area
due to
utilities
LNAPL
LNAPL
LNAPL
Proposed Monitoring Well Location
SS denotes soil samples will be collected
GW flow appears to be toward the east
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
MONITORING WELL CONSTRUCTION DETAILS
FLUSH GRADE MANHOLE
CROSS SECTIONAL VIEW
(NOT TO SCALE)
LOCKABLE WELL CAP PROTECTIVE CASING AND CONCRETE PAD
L1 CASING MATERIAL steel
CASING DIAMETER 8 inches
CASING LENGTH 20 inches
PAD DIMENSIONS 2 feet x 2 feet
HEIGHT ABOVE GROUND flush mounted
WELL CASING
MATERIAL sch 40 PVC
DIAMETER 2 inches
JOINT TYPE flush threaded
LENGTH 5 feet
L2 BACKFILL AROUND CASING
MATERIAL cement grout
THICKNESS 1 feet
SEAL
TYPE OF SEAL bentonite
L4 THICKNESS 1 feet
FILTER PACK
TYPE OF FILTER #2 silica sand
DISTANCE ABOVE SCREEN 1 feet
TOTAL FILTER PACK FOOTAGE 3 feet
WELL SCREEN
L3 SCREEN MATERIAL sch 40 PVC
DIAMETER 2 inches
LENGTH 20 feet
SLOT SIZE 0.010 inches
DEPTH TO BOTTOM OF
WELL 25 feet
DEPTH TO BOTTOM OF
BOREHOLE 25 feet
L1 =FT.
L2 =FT.DIAMETER OF BOREHOLE 6 inches
L3 =FT.
L4 =FT.DRILLING SUBCONTRACTOR:Geologic Exploration, Inc.
DRILLER ADDRESS:176 Commerce Blvd, Statesville, NC 28625
DRILLER CERTIFICATION #:2581
TITLE
2725 East Millbrook Road, Suite 121
Raleigh, North Carolina 27604
FILE PREP. BY REV. BY DATE
MJ MJ 1/18/2024
North Carolina
Durham, Durham County
106 East N.C. Hwy 64
Circle K Store #2723781
Well Information
25
20
5
0
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7
TYPICAL TYPE III MONITORING WELL CONSTRUCTION DETAILS
FLUSH GRADE MANHOLE
CROSS SECTIONAL VIEW
NOT TO SCALE
LOCKABLE WELL CAP
PROTECTIVE CASING AND CONCRETE PAD
L1 CASING MATERIAL Steel
CASING DIAMETER 8 inches
CASING LENGTH 12 inches
PAD DIMENSIONS 2 feet x 2 feet
HEIGHT ABOVE GROUND flush mounted
WELL CASING
MATERIAL sch 40 PVC
DIAMETER 2 inches
JOINT TYPE flush threaded
LENGTH 45 feet
L2 BACKFILL AROUND CASING
MATERIAL cement-sand grout
THICKNESS 29, 31 feet
OUTER WELL CASING
MATERIAL sch 40 PVC
DIAMETER 6 inches
L4 JOINT TYPE flush threaded
LENGTH 29 feet
SEAL
TYPE OF SEAL bentonite
THICKNESS 2'
FILTER PACK
TYPE OF FILTER #2 silica sand
L3 DISTANCE ABOVE SCREEN 2'
WELL SCREEN
SCREEN MATERIAL sch 40 PVC
DIAMETER 2 inches
LENGTH 5 feet
SLOT SIZE 0.010 inches
DEPTH TO BOTTOM OF
MONITORING WELL 50.0 feet
L1 =0.5 FT.DEPTH TO BOTTOM OF
L2 =45 FT.BOREHOLE 50.0 feet
L3 =5 FT.
L4 =50 FT.DIAMETER OF BOREHOLE 8 inches
TITLE Permanent Monitoring Well Diagram
(Example of typical MW installation displayed above)
Circle K Store #2723479 2725 E. Millbrook Road, Suite 121
Raleigh, North Carolina 27604
FILE PREP. BY REV. BY DATE PROJECT NO.
DocuSign Envelope ID: 3253CAA9-7A96-4A07-A17C-BD17899741E7