LEASE AGREEMENT

Exhibit 10.38

LEASE AGREEMENT

BY AND BETWEEN

AND

PROPERTY ADDRESS:

DATED

TABLE OF CONTENTS

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PARTIAL SUMMARY OF TERMS

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INDEX OF DEFINED TERMS

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LEASE AGREEMENT

THIS LEASE AGREEMENT (“ Lease” ) is made as of the Commencement Date (as defined in the Partial Summary of Terms), by and between                      , a                          (“ Landlord ”), and                      , a                          (“ Tenant ”).

In consideration of the mutual promises and agreements herein contained, the parties agree as follows:

1. Premises .  Landlord shall lease to Tenant, and Tenant shall lease from Landlord, subject to the conditions hereinafter expressed: (a) the real property located in the Property Locality (as defined in the Partial Summary of Terms), which real property is more particularly described on Exhibit A hereto (the “ Land ”), upon which exist certain improvements in the nature of an automobile dealership, together with related paved parking and appurtenant improvements and any replacements thereof (together, the “ Improvements ”); and (b) certain furniture, fixtures, equipment, furnishings and other personal property and any replacements thereof used or utilized in connection with the ownership and operation of the Improvements as more particularly described on Exhibit C hereto (collectively the “ Personalty ”). As used herein, the Land, Improvements, and the Personalty are collectively referred to as the “ Premises ”.

2. Condition of Premises .  Tenant acknowledges and agrees that the Premises are and shall be leased by Landlord to Tenant in its present “as-is” condition, subject to all liens, encumbrances and restrictions affecting the Premises. Landlord makes absolutely no representations or warranties whatsoever with respect to the Premises or the condition thereof, either to its fitness for use, condition, purpose or otherwise as to the quality of material or workmanship therein, latent or patent, it being agreed that all such risks are to be borne by Tenant. Tenant acknowledges that Landlord has not investigated and does not warrant or represent to Tenant that the Premises are fit for the purposes intended by Tenant or for any other purposes whatsoever. Tenant acknowledges and agrees that the Premises are to be leased to Tenant in their existing condition, i.e., “as-is”, as of the Commencement Date and at all times thereafter. Tenant acknowledges that Tenant shall be solely responsible for any and all actions, repairs, permits, approvals, and costs required for the rehabilitation, renovation, use, occupancy and operation of the Premises in accordance with applicable governmental requirements, including, without limitation, all governmental charges and fees, if any, which may be due or payable to applicable authorities. By leasing the Premises, Tenant warrants and represents to Landlord that Tenant has examined and approved all things concerning the Premises which Tenant deems material to Tenant’s leasing and use of the Premises. Tenant further acknowledges and agrees that: (a) neither Landlord nor any agent of Landlord has made any representation or warranty, express or implied, concerning the Premises or which have induced Tenant to execute this Lease except as contained in this Lease; and (b) any other representations and warranties are expressly disclaimed by Landlord.

3. Term .

(a)         Initial Term .  This Lease shall be for a period beginning on the Commencement Date, and ending on the day before the              anniversary of the Commencement Date (as defined in the Partial Summary of Terms), unless modified or earlier terminated pursuant to the terms hereof (the “ Initial Term ”).

(b)         Renewal Term .  Provided Tenant is not in default hereunder (unless such default is waived by Landlord in its sole discretion) and, at the expiration of the Initial Term, Tenant shall have the option to renew this Lease for              additional              year periods (the “ Renewal Term(s) ”). Each Renewal Term shall automatically commence as of the end of the Initial Term or the initial Renewal Term, as applicable, unless Tenant gives Landlord written notice of termination not less than one hundred eighty (180) days prior to the expiration of the Initial Term or the expiration of the initial Renewal Term, as applicable. As used herein, the Term, the Initial Term, and the Renewal Term(s), if exercised, shall be referred to hereinafter collectively as the “ Term ” or “ Lease Term ”.

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4. Rent .

(a)         Monthly Base Rent .  “ Monthly Base Rent ” shall be an amount equal to the Purchase Price (as defined in the Partial Summary of Terms and as increased from time to time in accordance with Paragraph 4(b)) multiplied by the then effective Capitalization Rate, the product of which is divided by twelve (12). The term “ Capitalization Rate ” shall mean the then effective LIBOR Rate plus the Applicable Basis Point Spread (or the fixed Capitalization Rate as determined in 4(b)(iv) below, as applicable) (or may be a fixed rate as set forth in Exhibit A-1). The term “LIBOR Rate” shall mean the British Banker’s Association (“BBA”) interest settlement rate based on an average of rates quoted by the BBA designated banks as being, in BBA’s view the offered rate at which deposits in U.S. Dollars are being quoted to prime banks in the London interbank market at 11:00 a.m. (London time) on the Determination Date for one month deposits, as reported by “The Bloomberg Financial Markets, Commodities and News” financial reporting service. The “Determination Date” shall be the Wednesday preceding the last Thursday of the second month prior to the month for which the Monthly Base Rent is due. The LIBOR Rate shall be rounded to two (2) decimal places. In the event that the LIBOR Rate is discontinued or cannot be ascertained, the Landlord will substitute a comparable rate and will notify Tenant of such substitution. The “Applicable Basis Point Spread” shall mean the number of basis points based on the LIBOR Rate on the Determination Date as set forth in the schedule set forth in Exhibit A-1. During each month of the Lease Term, the Monthly Base Rent shall be adjusted in accordance with this paragraph. Notwithstanding any provision to the contrary in this paragraph 4, in no event shall the Capitalization Rate, as determined above, be less than the rate set forth in Exhibit A-1. The Landlord shall endeavor to notify Tenant of the Monthly Base Rent not later than the fifteenth (15 ^th ) day of the month prior to the date that the rent is due, but Landlord’s failure to provide the same will not be deemed a waiver of Tenant’s obligation to pay the Monthly Base Rent.

(b)         Adjustment of Base Rent .

(i)        For the purpose of calculating the cost of living adjustments, the following definitions shall apply: (A) the term “ Base Month ” shall mean the calendar month which is five (5) years prior to the applicable Five Year Purchase Price Adjustment Date (as hereinafter defined); and (B) the term “ Price Index ” shall mean the “Consumer Price Index-United States City Average All Urban Consumers” published by the Bureau of Labor Statistics of the United States Department of Labor (1982-94 = 100), or, in the event such index is discontinued or no longer readily available, any renamed local index covering the metropolitan area in which the Premises are located or any other successor or substitute index appropriately adjusted.

(ii)      Effective as of: (A)                          anniversary of the Commencement Date; and (B) each          year anniversary date thereafter throughout the Term (each, a “          Year Purchase Price Adjustment Date ”), the Purchase Price used in the computation of the Monthly Base Rent payable hereunder shall be increased by an amount equal to the product of (i) the Purchase Price currently in effect multiplied by (ii) the percentage increase between the Price Index for the month preceding the applicable          Year Purchase Price Adjustment Date and the Price Index for the month preceding the prior          Year Purchase Price Adjustment Date (or with respect to the first scheduled adjustment, the month preceding the Commencement Date); provided that in no event shall the Purchase Price be decreased on any          Year Purchase Price Adjustment Date.

(iii)     If the Price Index for the month preceding the applicable          Year Purchase Price Adjustment Date is not available as of any          Year Purchase Price Adjustment Date, then the increase shall be calculated using the most current available Price Index (and recalculated as soon as the Price Index for the month preceding the applicable          Year Purchase Price Adjustment Date becomes available). In no event shall any adjustment made pursuant to this Paragraph 4, or any decrease in the Price Index, ever result in a decrease in the Purchase Price (as previously increased) or Monthly Base Rent payable hereunder to below the then current Monthly Base Rent.

(iv)       Fixed Rate Conversion .  During the Initial Term, provided that Tenant is not in default hereunder and at least five years remain during the Initial Term, Tenant shall have the right to a one-time conversion of the Capitalization Rate to a fixed rate (if based on LIBOR) to be used during the remainder of the Initial

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Term and during the Renewal Terms. The fixed Capitalization Rate will be equal to the greater of (i) Capital Automotive REIT’s (“CARS”) credit spread plus a 225 basis point operating spread plus the current coupon on the Ten (10) year US Treasury or (ii)         %. An indication of the current credit spread for CARS is BBB rated Commercial Mortgage Backed Securities with a maturity matching the remaining lease Term. In order to convert the Capitalization Rate to a fixed rate, Tenant must give Landlord irrevocable written notice electing and designating a business day to be a conversion date at least thirty (30) days from the date of notice. All fees and expenses incurred by the Landlord related to the rate lock shall be paid by Tenant or reimbursed to the Landlord.

(c)         Base Rent During Second Renewal Term .  The Base Rent during the second Renewal Term, if applicable, shall be the fair Market Rent (as hereinafter defined), as determined in accordance with the appraisal method set forth below. For purposes of this Lease, the Fair Market Rent shall be determined by three (3) independent appraisers who are members of the Appraisal Institute and are recognized as knowledgeable and reputable in the field. One shall be selected by Landlord, one shall be selected by Tenant, and the third shall be selected by the appraisers selected by Landlord and Tenant. Landlord and Tenant each shall select its appraiser within thirty (30) days after Landlord’s receipt of Tenant’s notice exercising its option to extend the Term for the second Renewal Period, and the third appraiser shall be selected within five (5) days after Landlord’s and Tenant’s selections. Landlord and Tenant each shall be responsible for the fees of its appraiser, and Landlord and Tenant shall share equally the fees of the third appraiser Each appraiser, within fifteen (15) days after selection of the third (3 ^rd ) appraiser, shall deliver to Landlord its written report setting forth the fair market rent for the Premises, which determination shall be based upon the highest and best use of the Premises, taking into consideration the location of the Premises and other properties comparable thereto. The “ Fair Market Rent ” shall mean the arithmetic mean of the two (2) fair market rent determinations that are closest in value. In the event the values of (a) the difference between the highest appraised rental value and the next lower appraised rental value, and (b) the difference between the lowest appraised rental value and the next higher appraised rental value, are equal, then the Fair Market Rent shall be the arithmetic mean of the fair market rent determinations of all the appraisers.

(d)         Payment of Monthly base Rent .  Tenant shall pay the Monthly Base Rent in advance, on the first (1 ^st ) day of each calendar month during the Lease Term without notice, demand or setoff. The Monthly Base Rent for any partial month shall be paid in advance and prorated daily from such date to the first (1 ^st ) day of the next calendar month. The first (1 ^st ) payment of Monthly Base Rent shall be due and payable on or before the execution of this Lease. All Rent shall be made by direct deposit by Tenant of immediately available funds into a checking account established with a bank, savings bank or other depository institution designated by Landlord (“ Bank ”) and controlled exclusively by Landlord entitled “Rent Collection Account” (or such other name as may be designated by Landlord) (“ Rent Collection Account ”). Landlord (or, at Landlord’s option, Landlord’s agent, if any), or such officers or other agents as may be designated by Landlord, shall be the sole signatory on the Rent Collection Account. All interest accrued in the Rent Collection Account shall belong to Landlord and shall not be credited to Tenant. No funds in the Rent Collection Account shall be subject to withdrawal by or for the benefit of Tenant. “ Rent ” shall mean and include all Monthly Base Rent, additional rent and other sums due hereunder.

(e)         Draft Withdrawal of Rent .  Instead of requiring Tenant to pay Rent in the manner set forth in Paragraph 4(c) above, Landlord may require Tenant, within thirty (30) days after notice to Tenant, to execute and deliver to Landlord any documents or authorizations required by Landlord to give effect to an automated debiting system, whereby any or all payments of Monthly Base Rent by Tenant shall be debited monthly from such account as tenant shall designate from time to time, and such amounts shall be credited to Landlord’s bank account as Landlord shall designate from time to time. Tenant shall maintain sufficient funds in Tenant’s account to cover all such payments. Tenant shall promptly pay all service fees and other charges connected therewith, including, without limitation, any charges resulting from insufficient funds in Tenant’s bank account or any charges imposed on Landlord. Tenant shall remain responsible to Landlord for all payments of Rent, even if Tenant’s bank account is insufficiently debited in any given month. Such insufficient amounts shall be immediately due and payable to Landlord without notice or demand.

(f)         Late Charge; Interest .  If Tenant fails to make any payment of Rent or any other sums or amounts to be paid by Tenant hereunder on or before the date such payment is due and payable and such amount

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remains unpaid for a period of five (5) days thereafter, or such longer time as required by the law of the Sate in which the Premises are located, Tenant shall pay to Landlord an administrative late charge of five percent (5%) of the amount such payment or such lesser amount then allowable under the laws of the State in which the Premises are located. In addition, if such amount remains past due for more than thirty (30) days following its due date, such past due payment shall bear interest at the lesser of twelve percent (12%) or the maximum interest rate then allowable under the laws of the State in which the Premises are located from the date such payment became due to the date of payment thereof by Tenant. Such late charge and interest shall constitute additional rent and shall be due and payable with the next installment of Rent due hereunder.

(g)         Payment without Abatement .  No abatement, diminution or reduction of Rent shall be allowed to Tenant or any person claiming under Tenant, under any circumstances or for any reason whatsoever.

5. Holding Over . If Tenant or any other person or party shall remain in possession of the Premises or any part thereof following the expiration of the Term or earlier termination of this Lease without an agreement in writing between Landlord and Tenant with respect thereto, the person or party remaining in possession shall be deemed to be a tenant at sufferance, and during any such holdover, the Rent payable under this Lease by such tenant at sufferance shall be one hundred fifty percent (150%) of the rate or rates in effect immediately prior to the expiration of the Term or earlier termination of this Lease. In no event, however, shall such holding over be deemed or construed to be or constitute a renewal or extension of this Lease.

6. Use of Lease Premises; Compliance With Laws .

(a)         Permitted Use .  Tenant shall use the Premises for an automobile dealership and related uses (“ Permitted Use ”) and for no other purpose. Tenant’s use of the Premises shall, subject to the right of diligent contest, comply with all laws, ordinances, orders, regulations or zoning classifications of any lawful governmental authority, agency, or other public or private regulatory authority (including insurance underwriters or rating bureaus) having jurisdiction over the Premises. Tenant, shall make or cause to be made all alterations, additions and improvements requiring expenditures as are required to be made under any applicable laws, ordinances, rules or regulations, now or hereinafter adopted or enacted, provided all such alterations, additions and improvements are made in accordance with Paragraph 10 hereof. Tenant shall not perform any act or follow any practice relating to the Premises which shall constitute a nuisance and shall conduct any Permitted Use on the Premises in an efficient and professional manner. Subject to the terms and provisions of this Lease, Tenant shall have the right to control the automobile dealership business being conducted at the Premises.

(b)         Continuous Operations .  During the Term, Tenant shall keep the Premises and the Business (as defined in Exhibit E) open to the public and continuously operating for the Permitted Use during normal business hours standard for the industry of which the Business is a part or, in the even that the Tenant does not continuously operate on the Premises, shall conduct periodic tests, which shall occur at least monthly, of mechanical and other systems located on the Premises and take all steps necessary to comply with its maintenance and repair obligations hereunder. If Tenant fails to continuously operate on the Premises for a period of six (6) months or more, Landlord, at its option, upon thirty (30) days written notice to Tenant and right to cure, may declare an Event of Default and exercise its rights and remedies thereafter.

(c)         Laws .  Notwithstanding the generality of the foregoing, Tenant shall, at its sole expense, maintain the Premises in full compliance with all applicable federal, state or municipal laws, ordinances, rules and regulations currently in existence or hereafter enacted or rendered governing accessibility for the disabled or handicapped, including, but not limited to, any applicable provisions of The Architectural Barriers Act of 1968, The Rehabilitation Act of 1973, The Fair Housing Act of 1988, The Americans With Disabilities Act, the accessibility code(s), if any, of the State in which the Premises are located, and all regulations and guidelines promulgated under any or all of the foregoing, as the same may be amended from time to time (collectively the “ Accessibility Laws ”). In the event that Tenant disputes the applicability of an Accessibility law to the Premises, Tenant may take reasonable steps to contest the applicability of such

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Accessibility Laws, so long as Tenant provides Landlord with reasonable assurances that Landlord’s interest in the Premises is not in any way jeopardized by such contest.

7. Tenant’s Covenant to Repair .  Tenant shall, at all times during the Term and at its sole cost and expense, put, keep, replace and maintain the Premises (including, without limitation, the Improvements and the Personalty) in good repair and in good, safe and substantial order and condition, shall make all repairs and replacements thereto, both inside and outside, structural and non-structural, ordinary and extraordinary, howsoever the necessity or desirability for repairs and replacements may occur, and whether or not necessitated by wear, tear, obsolescence or defects, latent or otherwise, and shall use all reasonable precautions to prevent waste, damage or injury. Tenant shall also at its own cost and expense install, maintain, and replace all landscaping, signs, sidewalks, roadways, driveways and parking areas within the Premises in good repair and in good, safe and substantial order and condition and free from dirt, standing water, rubbish and other obstructions or obstacles.

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

9. Surrender .  Tenant shall on the last day of the Lease Term, or upon the sooner termination of this Lease, peaceably and quietly surrender the Premises to Landlord, in as good condition as they were when received, ordinary wear and tear excepted, and free from all liens and encumbrances.

10. Alterations .

(a)         Prohibition . Except as hereinafter expressly provided in this Paragraph 10, no portion of the Premises shall be demolished, removed or altered by Tenant in any manner whatsoever without the prior written consent and approval of landlord, which may not be unreasonably withheld or delayed. Notwithstanding the foregoing, however, Tenant shall be entitled and obligated to undertake all alterations to the Premises required by any applicable law or ordinance including, without limitation, any alterations required by any Accessibility Laws, and, in such event, Tenant shall comply with the provisions of Paragraph 10(c) below. The foregoing notwithstanding, if the existing Premises are “grandfathered” such that alterations which would normally be required to comply with law are not required with respect to the Premises, Tenant shall not be entitled to alter the otherwise “grandfathered” structure without Landlord’s prior written consent, which shall not be unreasonably withheld or delayed.

(b)         Permitted Renovations . Landlord acknowledges that various minor, non-structural alterations may be undertaken by Tenant from time to time without the approval of Landlord. Tenant shall be entitled to perform all such work on or about the Improvements; provided, however, that the conditions in Paragraph 10(c) below shall be met.

(c)         Conditions . The following conditions shall be met by Tenant for any alterations to the Premises permitted under Paragraphs 10(a) and 10(b):

(i)         Before the commencement of any such work, plans and specifications therefore or a detailed itemization including costs thereof shall be furnished to Landlord for its review and approval. Landlord’s approval of Tenant’s plans shall create no responsibility or liability on the part of Landlord for their completeness, design, sufficiency or compliance with all laws, rates, and regulations of governmental agencies or authorities.

(ii)        If the cost of such work will exceed FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00), then Tenant shall deposit in Landlord’s name, in an escrow account at the Bank or other financial institution designated by Landlord, the anticipated cost of such work, as certified by Tenant’s contractor, who shall be approved by Landlord, or, in the alternative, shall provide Landlord with other reasonable assurances that such work will be performed and paid for in a lien-free fashion, such as demonstrating to Landlord the strength of Tenant’s financial condition or by demonstrating to Landlord

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that a lender has committed to loan Tenant construction funds for the proposed alterations. Such proceeds shall be disbursed periodically by Landlord upon certification of Tenant’s contractor that such amounts are the amounts paid or payable for such work. Tenant shall, at the time of establishment of such escrow account and from time to time thereafter until said work shall have been completed and paid for, furnish Landlord with adequate evidence that at all times the undisbursed portion of the escrowed funds, together with any funds made available by Tenant, is sufficient to pay for the work in its entirety. Tenant shall obtain, and make available to Landlord, receipted bills and, upon completion of the work, full and final waivers of lien.

(iii)      Before the commencement of any such work, Tenant shall obtain any required approvals from all governmental departments or authorities having or claiming jurisdiction of or over the Premises, and from any public utility companies having an interest therein. In any such work, Tenant shall comply with all applicable laws, ordinances, requirements, orders, directions, rules and regulations of the federal, state, county and municipal governments and of all other governmental authorities having or claiming jurisdiction of or over the Premises and of all their respective departments, bureaus and offices, and with the requirements and regulations, if any, of such public utilities of the insurance underwriting board or insurance inspection bureau having or claiming jurisdiction, or any other body exercising similar functions, and of all insurance companies then writing policies covering the Premises or any part thereof.

(iv)        Tenant represents and warrants to Landlord that all such construction work will be performed in a good and workmanlike manner and in accordance with the terms, provisions and conditions of this Lease and all governmental requirements.

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

(vi)        All such work shall be performed at Tenant’s cost and expense and free of any expense to Landlord and free of any liens on Landlord’s fee simple interest on or Tenant’s leasehold interest in the Premises.

(vii)      Upon substantial completion of any such work Tenant shall procure a certificate of occupancy, if applicable, from the appropriate governmental authorities verifying the substantial completion thereof.

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

(d)         Additions , Expansions and Structural Alterations .  Except as expressly permitted in Paragraph 10(a) or 10(b) above, nothing in this Lease shall be deemed to authorize Tenant to construct and erect any additions to or expansions of the Improvements, or perform any alterations of a structural nature whatsoever; it being understood that Tenant may do so only with the prior written consent and approval of Landlord, which consent and approval may not be unreasonably withheld or delayed by Landlord.

(e)         Construction Take-Out .  Notwithstanding the foregoing, in the event that the Tenant constructs capital improvements to be funded in connections with that certain letter agreement from Capital Automotive, L.P. to Tenant of even date herewith (the “Funding Agreement”), the construction of the capital improvements shall be in accordance with the terms of the Funding Agreement.

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11. Utilities and Other Services .  Tenant shall be liable for an shall pay directly all charges, fees and amounts (together with any applicable penalties, late charges, taxes or assessments thereon) when due for water, gas, electricity, air conditioning, heat, septic, sewer, refuse collection, telephone and any other utility charges or similar items in connection with the use or occupancy of the Premises. Landlord shall not be responsible or liable in any way whatsoever for the quality, quantity, impairment, interruption, stoppage, or other interference with any utility service, including, without limitation, water, air conditioning, heat, gas, electric current for light and power, telephone, or any other utility service provided to or serving the Premises or any damage or injury caused thereby. No such interruption, termination or cessation of utility services shall relive Tenant of its duties and obligations pursuant to this Lease, including, without limitation, its obligation to pay all Rent as and when the same shall be due hereunder.

12. Performance by Landlord of Tenant’s Obligations .

(a)         Landlord’s Self Help .  If Tenant shall default in the performance of any term, provision, covenant or condition on its part to be performed hereunder and such default shall continue beyond any notice or cure period recited herein, Landlord may, after notice to Tenant and a reasonable time to perform after such notice (or without notice if, in Landlord’s reasonable opinion, an emergency exists) perform the same for the account and at the expense of Tenant. If, at any time and by reason of such default, Landlord is compelled to pay, or reasonably elects to pay, any sum of money or do any reasonable act which will require the payment of any sum of money, or is compelled to incur any expense in the enforcement of its rights hereunder or otherwise, such sum or sums, together with interest thereon at the highest rate allowed under the laws of the State where the Premises are located, shall be deemed additional rent hereunder and shall be repaid to Landlord by Tenant promptly when billed therefore, and Landlord shall have all the same rights and remedies in respect thereof as Landlord has in respect of the Rents herein reserved.

(b)         Landlord’s Inspections .  Landlord, its agents or representatives shall have the right, but not the obligation, to enter upon the Premises to perform annual inspections of the Premises to confirm that Tenant is performing all of Tenant’s obligations under this Lease, including, but not limited to, Tenant’s obligations under Paragraph 7, and that Tenant has not violated any of its covenants under this Lease, including, but not limited to, the covenants under this paragraph 12. Upon completion of such inspection, Landlord may deliver to Tenant a written report (“Inspection Report”) outlining certain defaults, if any, in Tenant’s obligations hereunder. Within ten (10) days of Tenant’s receipt of such Inspection Report, Tenant shall either: (i) object to Landlord in writing as to any portion of the Inspection Report, specifically describing such objection; or (ii) begin to perform any and all required work outlined in the Inspection Report which Tenant has not objected to, and diligently complete such work. If Tenant objects to any item in the Inspection Report, then within ten (10) days of Landlord’s receipt of Tenant’s objection notice, both Landlord and Tenant shall select a third party licensed engineer mutually satisfactory to Landlord and Tenant or if a single engineer cannot be agreed upon, then Landlord and Tenant shall each, at their own cost, select a licensed engineer and the two chosen engineers shall select a third licensed engineer, the cost of the third engineer being paid equally by Landlord and Tenant. The engineer(s) shall determine, by majority vote, if the work outlined in the Inspection Report should be performed by Tenant. Such determination shall be final and binding on Landlord and Tenant.

13. Entry .  Landlord, any mortgagee for the Premises and their agents or representatives may enter the Premises at reasonable times during normal business hours upon twenty-four (24) hours prior written notice (except during emergencies, in which case Landlord shall endeavor to give such notice as Landlord deems reasonable under the circumstances or as provided for inspections under Paragraphs 10 and 12) for the purpose of inspecting the Premises, or performing any work which Landlord elects to undertake by reason of Tenant’s default under the terms of this Lease. Landlord shall use reasonable efforts not to disturb Tenant as a result of any such entry by Landlord, its agents or representatives.

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14. Assignment and Subletting .

(a)         Transfers Prohibited Without Consent .  Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, in each instance, sell, assign or otherwise transfer this Lease, or Tenant’s interest in the Premises, in whole or in part, or any rights or interest which Tenant may have under this Lease, or sublet the Premises, or any part thereof, or grant or permit any lien or encumbrance on or security interest in Tenant’s interest in this Lease. When given, the consent of the Landlord to an assignment, transfer, subletting or encumbrance shall in no event be construed to relieve Tenant or such assignee or subtenant from the obligation of obtaining the express consent in writing of Landlord to any further assignment, transfer, subletting or encumbrance. Any assignment, transfer, sublease or encumbrance in violation of this Article shall be voidable at Landlord’s option. Notwithstanding the foregoing, Tenant may assign or sublet the Premises to any affiliate of Guarantor (hereinafter defined) without first obtaining the consent of Landlord, so long as the Guaranty contemplated by Paragraph 51 hereof shall remain in full force and effect.

(b)         Change of Control Prohibited Without Consent .  Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, in each instance, engage in or permit to occur a Change of Control. Change of Control shall be deemed an assignment hereunder. “ Change of Control ” of Tenant shall mean: (i) the issuance or sale by Tenant or the sale by any shareholder, stockholder, member, partner or owner of equity interests of Tenant of a controlling interest in Tenant (which shall mean the effective voting control of Tenant); (ii) the sale, conveyance or other transfer of all or substantially all of the assets of Tenant (whether by operation of law or otherwise); (iii) any transaction, or series of transactions, pursuant to which Tenant is merged with or consolidated into another entity and Tenant is not the surviving entity; or (iv) the sale, assignment, transfer, exchange or other disposition of the stock, membership interest, general interest, or other legal or beneficial interest in Tenant (or any direct or indirect owner thereof) which results in a direct or indirect change or transfer of management or control of Tenant, or a merger, consolidation or other combination of Tenant (or any direct or indirect owner thereof) with another entity which results in a change or transfer of management or control of Tenant. Notwithstanding the foregoing, the stock, membership interest, general partner interest, or other legal or beneficial interest may be sold, assigned, transferred, exchanged or disposed of to any affiliate of Guarantor without first obtaining the consent of Landlord, so long as the Guaranty contemplated by Paragraph 51 hereof shall remain in full force and effect.

(c)         Adequate Assurances .  Without limiting any of the foregoing provisions of this Paragraph 14, if, pursuant to the U.S. Bankruptcy Code, as the same may be amended from time to time, Tenant is permitted to assign or otherwise transfer its rights and obligations under this Lease in disregard of the restrictions contained in this Paragraph 14, the assignee agrees to provide adequate assurance to Landlord: (i) of the continued use of the Premises solely in accordance with the Permitted Use thereof and in compliance with all other terms of this Lease; (ii) of the continuous operation of the Business in the Premises in strict accordance with the requirements of Paragraph 6 hereof; and (iii) of such other matters as Landlord may reasonably require at the time of such assumption or assignment. Such assignee shall expressly assume this Lease by an agreement in recordable form.

(d)         Subleases, Concessions and Licenses .  Tenant may continue any subleases, concession agreements or license agreements at the Premises which were in effect, with Landlord’s written approval, immediately prior to the Commencement Date and as identified on Schedule 14(d) hereto. Further, Landlord shall not unreasonably withhold its consent to any future sublease, concession agreement or license agreement proposed to be entered into in replacement of any such currently existing sublease, concession agreement or license agreement.

(e)         Effect of Consent .  Unless expressly agreed by Landlord in writing to the contrary, Landlord’s consent to any assignment, sublease, concession agreement, license agreement or any transfer of this Lease shall not operate to release Guarantor from the Guaranty.

15. Taxes and Assessments .  Throughout the Term, Tenant shall bear, pay and discharge all taxes, assessments and other governmental impositions and charges of every kind and nature whatsoever, extraordinary as well as ordinary, and each and every installment thereof which shall or may during the Term hereof be assessed or imposed upon, or arise in connection with, the use, occupancy or possession of

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the Premises or any part thereof, including, without limitation, ad valorem real and personal property taxes, and all taxes assessed or imposed in lieu of or in addition to any of the foregoing by virtue of all present or future laws, ordinances, rules or regulations of federal, state, county and municipal governments and of all other governmental authorities which relate to the use, occupancy or possession of the Premises, but specifically excluding any income or capital gains taxes. Upon request of Landlord, Tenant shall promptly furnish to Landlord satisfactory evidence of the payment of any tax, assessment, imposition or charge required to be paid by Tenant pursuant to the foregoing.

16. Casualty .

(a)         Restoration and Repair .  In the event that during the Initial Term the Improvements and/or Personalty shall be destroyed or damaged in whole or in part by fire or any cause whatsoever (“ Casualty”), Tenant shall give Landlord immediate notice thereof and shall repair, reconstruct or replace the Improvements and/or Personalty, or the portion thereof so destroyed or damaged (whichever is reasonably required), at least to the extent of the value and character thereof existing immediately prior to such occurrence. All work shall be started as soon as practicable and completed at Tenant’s sole cost and expense. Tenant shall, however, immediately take such action as is necessary to assure that the Premises ( or any portion thereof) does not constitute a nuisance or otherwise presents a health or safety hazard. Tenant shall continue to pay all Rent and additional charges due hereunder without abatement. Notwithstanding the foregoing, in the event that a period of two (2) years or less remains on the Term of this Lease and the Tenant has not given Landlord notice of its intent to renew the Lease for a Renewal Term, Landlord may elect to terminate the Lease upon the occurrence of a Casualty in which more than eighty percent (80%) of the value of the Improvements and/or Personalty is damaged or destroyed and, in such case, Tenant shall assign all insurance proceeds for such damage or destruction to Landlord.

(b)         Escrow of Insurance Proceeds .  In the event of a casualty resulting in an insurance loss payment for the Improvements and/or Personalty in an amount greater than ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00), the proceeds of all insurance policies maintained by Tenant plus the amount of any deductible shall be deposited in Landlord’s and Tenant’s name in an escrow account at the Bank or another financial institution designated by Landlord (“Escrow Agent”), and shall be used by Tenant (subject to subparagraph (a) above) for the repair, reconstruction or restoration of the Improvements and/or Personalty. Such proceeds shall be disbursed periodically by Escrow Agent upon certification of the architect or engineer having supervision of the work that such amounts are the amounts paid or payable for the repair, reconstruction or restoration. Tenant shall, at the time of establishment of such escrow account and from time to time thereafter until said work shall have been completed and paid for, furnish Landlord with adequate evidence that at all times the undisbursed portion of the escrowed funds, together with any funds made available by Tenant, is sufficient to pay for the repair, reconstruction or restoration in its entirety. If a Casualty results in a loss payment for the Improvements and/or Personalty in an amount equal to or less than the amount stated above, then the proceeds shall be paid to Tenant, and shall be applied by Tenant (subject to subparagraph (a) above) toward the repair, reconstruction and restoration of the Premises in its entirety. Tenant shall obtain, and make available to Landlord, receipted bills and, upon completion of the work, full and final waivers of lien.

(c)         Uninsured Losses .  Nothing contained herein shall relieve Tenant of its obligations under this Paragraph 16 even if the destruction or damage is not covered, either in whole or in part, by insurance.

17. Insurance .

(a)         Insurance by