Exhibit 99.1
LEASE AGREEMENT
Between
FAIRWAYS COMMERCIAL INVESTMENTS,
L.L.C.,
a Washington limited liability
company,
LANDLORD,
and
PETRO STOPPING CENTERS, L.P., a
Delaware limited partnership,
TENANT
LEASE AGREEMENT
AGREEMENT OF LEASE
made effective as of the 19
th
day of October, 2005
(the “ Effective Date ”), by and between
FAIRWAYS COMMERCIAL INVESTMENTS, L.L.C., a Washington
limited liability company, whose address is 608 East Holland
Avenue, Spokane, Washington 99218 (hereinafter referred to as
“ Landlord ”) and PETRO STOPPING
CENTERS, L.P., a Delaware limited partnership, with offices at
6080 Surety Drive, El Paso, Texas 79905 (hereinafter referred to as
“ Tenant ”).
RECITALS:
WHEREAS, pursuant to that certain
Construction Contract dated as of
, 2005 (the “ Construction Contract ”),
between Landlord and Vandevert Construction, Inc. (the “
Contractor ” ), Landlord is constructing the
Premises, as defined herein, for the benefit and to the
specifications of the Tenant, and as part of that Construction
Contract, Landlord and Tenant hereby enter into this Lease
Agreement, to become effective and commence when Tenant takes
possession of the Premises, all as set forth herein; and
WHEREAS, certain terms and
provisions of this Lease Agreement cannot be determined by Landlord
and Tenant until construction of the Improvements is complete, and
those terms and provisions will be referenced in the First Addendum
in substantially the form attached hereto as Exhibit D , and
made part hereof, to be agreed to and executed by Landlord and
Tenant prior to Tenant taking possession of the
Premises.
WITNESSETH:
That Landlord, in consideration of the rents and
covenants herein set forth, hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises hereinafter described,
upon the following terms and conditions:
ARTICLE 1
BASIC LEASE
PROVISIONS
SECTION 1.01 BASIC LEASE
PROVISIONS
(A) Location of Premises: The
Premises, as described herein, are located adjacent to the
interchange between Interstate Highway 90 and State Highway 902,
Spokane County, Washington, situated on the real property described
on Exhibit A attached hereto and made a part hereof,
together with the buildings and all other improvements
thereon.
(B) Premises: The “
Premises ” consist of the real property
described on Exhibit A , containing approximately 20.45
acres of land, more or less, and all easements, rights of ingress
and egress, rights-of-way and appurtenances thereto and all parking
areas used or useful in connection therewith (the “
Real Property ”), and all improvements and
buildings situated thereon, including without limitation the
fueling facilities, all restaurant and food service facilities,
travel store, signage, lighting, landscaping, on-site utility
connections, convenience store, truck repair and lube
maintenance facility and all paved surfaces
which have been constructed upon the Real Property (collectively,
the “ Improvements ”), and all Equipment
(as hereafter defined) situated on the Real Property and in, on,
under and about the Improvements. The Premises does not include
items of Tenant Property (as hereinafter defined), business
inventories, including fuel inventory, inventory held for sale to
the public, furniture, fixtures and equipment.
(C) Initial Term: Fifteen
(15) years.
(D) Options to extend Term: Three
(3) consecutive renewal options of five (5) years each
(each a “ Renewal Term ”), subject to the
provisions of Section 2.02 hereof.
(E) Rent: During the Initial Term
and all Renewal Terms of this Lease, Rent shall be paid in the
amount set forth in the First Addendum, to be calculated as an 8.9%
annual return on all the cost of the Premises (the “
Total Cost ”) including (i) Two Dollars
and Fifty Cents ($2.50) per square foot value on the land, which is
Two Million Two Hundred Twenty-Seven Thousand One Hundred Ninety
Dollars and No Cents ($2,227,190.00), (ii) hard cost of
Improvements, (iii) site work, and (iv) all soft costs
related to this project (but not including any Tenant Property),
said Rent being payable in equal monthly installments as set forth
in Article 5 herein. The Total Cost to be used in calculating the
Rent, and for purposes of calculating the Purchase Price in
Section 21(C), shall not exceed Ten Million Two Hundred
Thousand and No Cents ($10,200,000.00). The Rent shall not be
adjusted during the Initial Term. Thereafter, beginning in the
first Renewal Term of this Lease, the Rent shall be adjusted upward
annually at the rate of two percent (2%) per year over the
previous year, with such adjustment taking effect at the beginning
of, and applied to, the First Renewal Term beginning with year 16
of this Lease, and each subsequent adjustment taking effect on the
annual anniversary of the Commencement Date.
ARTICLE 2
DEMISE AND TERM
SECTION 2.01: PREMISES
(A) Real Property .
Landlord leases to Tenant, and Tenant leases from Landlord, the
Premises, including all of Landlord’s right, title and
interest in and to the Real Property and the Improvements thereon
as shown on Exhibit A , and including the underground
storage and other tanks, the related islands, pumps, dispensers and
other equipment (the “ USTs ”) made a
part of the Premises as part of the construction thereof by
Landlord.
(B) Equipment .
Landlord leases to Tenant, and Tenant leases from Landlord, all
Equipment made part of the Improvements or attached thereto as real
property including the air conditioning and heating equipment and
other mechanical systems installed by Landlord as part of the
construction of the Improvements (sometimes herein, the “
Mechanical Equipment ”). A list of the
Equipment shall be appended as Schedule 1 to the First Addendum and
become a part hereof.
(C) Tenant Property .
Other than the Equipment which is part of the Premises subject to
this Lease Agreement, all other items of personal property used or
useful by the Tenant in the operation of Tenant’s travel
center business at the Premises shall be supplied by and owned
by
Tenant, including all furniture, trade fixtures,
equipment, tools, business inventory, fuel inventory, supplies,
retail inventory, and machinery (the “ Tenant
Property ”). Landlord shall have no obligation or
duty with regards to the Tenant Property, and shall have no
ownership right or interest therein.
(D) Quiet Enjoyment .
Upon Tenant paying Rent and performing all of the covenants and
conditions set forth herein, Landlord hereby covenants and agrees
that Tenant will peacefully and quietly have, hold and enjoy the
Premises and Equipment for the Term herein provided.
(E) Use of Premises .
Tenant may use the Premises solely for the operation of a
full-facility truck/auto travel center operated consistent with the
operation of the other truck/auto travel centers in Tenant’s
national network, including substantially the same days and hours
of operation, and for such other uses commercially related thereto
as Tenant determines from time to time.
SECTION 2.02: INITIAL TERM DATE; RENEWAL
OPTIONS.
(A) The Initial Term of this Lease
shall commence upon Tenant’s occupancy of the Premises, and
that date (the “ Commencement Date ”)
shall be set forth in the First Addendum. In any event, Landlord
agrees to make the Premises available for delivery to Tenant so
that the Commencement Date shall not be later than June 1,
2006 or as otherwise set forth in Section 25.02 below. The
Initial Term of this lease shall expire fifteen (15) years
after the Commencement Date. If Tenant exercises its options to
extend, each Renewal Term shall begin on an anniversary date of the
Commencement Date.
(B) Landlord hereby grants to
Tenant, in addition to the Initial Term, the option to renew this
Lease for three (3) additional terms of five (5) years
each (each a “ Renewal Term ”), subject
to and on the same terms and conditions contained herein, except
for Rent, which shall be adjusted as provided in
Section 1.01(E), provided that Tenant is not in default under
the terms of this Lease at the time of exercise of each of such
Renewal Terms. Each Renewal Term shall be exercised automatically
unless Tenant provides Landlord with written notice of
Tenant’s intention not to extend this Lease not less than 180
days prior to the expiration of the Initial Term or the then
current Renewal Term, as applicable.
SECTION 2.03: MEMORANDUM OF
LEASE. Each of the
parties hereto agrees to promptly, upon the Commencement Date,
execute and record the Memorandum of Lease and Option to Purchase
attached hereto as Exhibit B which shall be recorded in
the real estate records of Spokane County, Washington.
SECTION 2.04: EFFECTIVE DATE.
Notwithstanding anything to the
contrary contained herein, including without limitation that the
Commencement Date may be subsequent to the Effective Date of this
Lease, it is the intention of Landlord and Tenant that this Lease
be effective between the parties as of the Effective Date and that
as of such date, that each of Landlord and Tenant have their
respective rights and obligations hereunder, subject to those terms
and provisions set forth in the First Addendum.
ARTICLE 3
REAL PROPERTY
IMPROVEMENTS
Tenant acknowledges and agrees that
Tenant has, or upon the Commencement Date, will have, inspected the
Improvements (including the HVAC, plumbing, electrical, mechanical
and other component systems) and as a result of such inspection,
Tenant acknowledges that the same are in good operating condition,
order and repair, conform with the requirements of the Construction
Contract, and are capable of being used in Tenant’s business
without present need for repair or replacement.
ARTICLE 4
EQUIPMENT
SECTION 4.01: USE AND
MAINTENANCE.
(A) Tenant acknowledges and agrees
that Tenant has, or upon the Commencement Date, will have,
inspected the Equipment and as a result of such inspection, Tenant
acknowledges that the same (i) is in operating condition,
order and repair in accordance with reasonable business practices,
consistently applied and in accordance with the terms of all
warranties and guarantees, (ii) is capable of being used in
the Tenant’s business without present need for repair or
replacement, (iii) conforms in all material respects with all
applicable legal requirements, (iv) conforms with the
requirements of the Construction Contract, and (v) in the
aggregate provides the capacity to enable Tenant to engage in
commercial operation in the Tenant’s business on a continuous
basis (subject to normal maintenance and repair outages in the
ordinary course).
(B) During the Term of this Lease,
Tenant shall use the Equipment in the conduct of Tenant’s
business and in compliance with all applicable laws.
(C) Subject to the provisions of
subparagraph (D) below Tenant, at its expense, will repair and
maintain the Equipment in good condition, ordinary wear and tear
and damage by casualty and condemnation excepted. Landlord shall
make available to Tenant any warranties relating to the Equipment
and Landlord shall reasonably cooperate with Tenant to assure that
any warranty claims are timely and adequately made with respect to
the repair and maintenance of the Equipment.
(D) In the event that during the
Term of this Lease the Equipment, or any portion thereof, shall
become obsolete, inoperable, unusable, unfit for use or out of
repair, or should Tenant otherwise desire to replace any portion of
the Equipment, Tenant shall do so such that at all times during the
Term of this Lease the quantity and quality of the Equipment shall
be sufficient for operation of the Tenant’s business
substantially as operated on the Commencement Date. Any such
Equipment as described in the preceding sentence shall be referred
to as the “ Replacement Equipment ”.
Except for the notice hereinafter provided, and provided Tenant
replaces such Equipment with Replacement Equipment of at least
equal value and of equal usefulness in the operation of the
Business and the Premises, subject to the provisions in Section
(E) hereof, Tenant shall be free to dispose of such Equipment
as Tenant chooses.
(E) Upon the expiration of the
Initial Term and all applicable Renewal Terms of this Lease, and
provided the Option to Purchase (as defined in Section 21
hereof) has not been exercised, Tenant shall relinquish or convey,
as applicable to Landlord at the Premises the right to possession
and use of the remaining Equipment originally leased hereunder from
Landlord to Tenant, plus any Replacement Equipment installed by
Tenant, such remaining Equipment and Replacement Equipment to then
be in workable condition, ordinary wear, tear and obsolescence and
damage by casualty (but only to the extent Landlord receives
insurance proceeds therefor) and condemnation excepted, and Tenant
shall leave the Premises as an operational facility; provided that:
(i)Tenant shall have the right to remove any Equipment bearing its
trade or service marks (the “ Marks ”) so
long as such items are replaced by Tenant so that the Premises
remain operational, substantially as operated as of the termination
date; and (ii) Tenant shall have the right to remove all of
its Tenant’s Equipment and, without any obligation whatsoever
to replace any such items of Tenant’s Equipment in or on the
Premises. Upon termination of this Lease, Landlord and Tenant shall
conduct an inventory of the Equipment and the parties shall make a
good faith reasonable adjustment for any discrepancies between the
Equipment as described on Schedule 1 to the First Addendum and such
final inventory, with Tenant compensating Landlord for the cost of
replacing any missing or damaged items with items of comparable
condition.
(F) The Tenant Property is not part
of the Equipment subject to this Lease Agreement and Landlord shall
have no obligation or duty with regards thereto, and shall have no
ownership right or interest therein.
ARTICLE 5
RENT
(A) During the Initial Term and any
exercised Renewal Term of this Lease, Tenant shall pay to Landlord
at the address herein provided, the Rent as set out in
Section 1.01 (E) above, and as more fully set forth in
the First Addendum, in equal monthly installments in advance,
commencing on the Commencement Date and thereafter on the first day
of each month during the Term of this Lease. Rent for any partial
month during any Term shall be prorated. In this regard if the
Commencement Date is on a date other than the first day of a month,
then the first Rent payment shall be the sum of (i) the
prorated Monthly Rent amount from the Commencement Date through the
last day of the applicable month in which the Commencement Date
occurs, and (ii) the entire amount of Monthly Rent for the
next succeeding calendar month.
(B) In the event an installment of
Rent is not received by Landlord within fifteen (15) days of
the date due, then a late fee equal to five percent (5%) of
the late installment of Rent shall be due in addition to the
ordinary Rent.
ARTICLE 6
TAXES AND
ASSESSMENTS
(A) Except as provided below, during
the Term of this Lease, Tenant agrees to pay, before they become
delinquent, all real estate taxes, special assessments, and other
governmental charges (“ Real Estate Taxes
”) which may be lawfully levied upon or against the Premises
described herein and all use, personal property and ad valorem
taxes and assessments imposed by reason of use or operation of the
Equipment (the “ Personal Property Taxes
” and together with the Real Estate Taxes, the “
Taxes ”), provided that Tenant’s
obligation for Taxes shall be equitably adjusted for any portion of
the Term of this Lease which does not include an entire tax year.
Nothing herein contained shall require or be construed to require
Tenant to pay any inheritance, estate, succession, mortgage or
transfer tax, gift, franchise, withholding, income or profit tax,
that is or may be imposed upon Landlord, its successors or assigns,
in connection with the operation of the Premises, Equipment or
otherwise.
(B) Immediately upon receipt of any
tax bill, statement or assessment with respect to the Taxes owing
in connection with the Premises, Landlord shall furnish to Tenant
such tax bill, statement or assessment, and if applicable, with a
calculation prorating Tenant’s and Landlord’s
respective Tax obligations.
(C) Subject to the prior written
consent of Landlord, not to be unreasonably withheld or delayed,
and the requirements of any lender having a mortgage or deed of
trust encumbering the Premises or the Real Property (“
Landlord’s Lender ”), Tenant shall have
the right to contest the amount of any Taxes for which Tenant is
obligated to pay under the terms of this Lease, and Landlord hereby
covenants and agrees to cooperate with Tenant in all respects with
regards thereto.
ARTICLE 7
LANDLORD’S COVENANTS AND
RESTRICTIONS
SECTION 7.01: LANDLORD’S COVENANTS
AND RESTRICTIONS. Except
as provided in Article 23, Landlord hereby covenants and agrees
that, during the Term hereof, Landlord shall not lease, or permit
to be leased, used or occupied any space within the Premises, and
that the lease of the Premises to Tenant is exclusive of the right
of possession of all other parties claiming by or under
Landlord.
SECTION 7.02: OPERATION OF
PREMISES. Landlord
covenants and agrees that the sizes, location and arrangements of
the Improvements and parking areas (including traffic circulation,
ingress, egress and flow patterns) existing as of the Commencement
Date will not be changed by Landlord without prior consultation
with Tenant and Tenant’s written consent, except that such
written consent shall not be required for changes required by
governmental authorities.
ARTICLE 8
WARRANTIES AND
REPRESENTATIONS
SECTION 8.01: REPRESENTATIONS AND
WARRANTIES OF LANDLORD.
Landlord represents and warrants to
Tenant that the following are true and correct on and as of the
date of this Agreement and will be true and correct through the
Commencement Date as if made on and as of those respective
dates.
(A) Organization of
Landlord . Landlord is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Washington and is authorized to conduct its businesses
as presently conducted. Landlord has heretofore delivered to Tenant
complete and correct copies of its Articles and in effect on the
date hereof.
(B) Consents, Authorizations
and Binding Effect .
(1) Landlord has authorized the
transaction contemplated herein and Landlord may execute, deliver
and perform this Lease without the necessity of Landlord obtaining
any consent, approval, authorization or waiver or giving any notice
or otherwise.
(2) This Lease constitutes the
legal, valid and binding obligation of Landlord, enforceable
against it in accordance with its terms except as may be limited by
bankruptcy, reorganization, insolvency and similar laws of general
application relating to or affecting the enforcement of rights of
creditors and subject to general principles of equity.
(3) The execution, delivery and
performance of this Agreement by Landlord does not and will not:
(i) constitute a violation of its Articles of Incorporation
and Bylaws, as amended; (ii) result in any lien against the
Premises; (iii) constitute a violation of any statute,
judgment, order, decree or regulation or rule of any governmental
body applicable or relating to Landlord or the Premises or the
business of Landlord; or (iv) conflict with, or constitute a
breach or default under, or give rise to any right of termination,
cancellation or acceleration under, any term or provision of any
contract, agreement, loan agreement or other agreement with any
lender, lease, mortgage, deed of trust, commitment, license,
franchise, permit, authorization or any other instrument or
obligation to which Landlord is a party or by which their
respective assets are bound, or an event which with notice, lapse
of time, or both, would result in any such conflict, breach,
default or right.
(C) Title and
Condition .
Landlord has good and marketable
title to the Premises, and Landlord has not leased, licensed,
transferred or otherwise conveyed the Premises except to Tenant
pursuant to this Lease and is not aware of any leases, licenses,
restrictions, restrictive covenants and rights-of-way) other than
permitted encumbrances described on Exhibit C attached
hereto and made a part hereof (the “ Permitted
Encumbrances ”). Tenant may, at Tenant’s
expense, obtain a Lessee’s Policy of Title Insurance from a
title company of Tenant’s choice in Spokane County,
Washington, which policy shall be issued subject only to the
Permitted Encumbrances.
SECTION 8.02: REPRESENTATIONS AND WARRANTIES OF
TENANT.
Tenant represents and warrants to
Landlord that the following are true and correct on the Effective
Date and will be true and correct through the Commencement Date as
if made on and as of that date:
(A) Tenant is a limited partnership
duly organized, validly existing and in good standing under the
laws of the State of Delaware and is qualified to transact business
and is in good standing as a foreign limited partnership in the
jurisdictions where it is required to qualify in order to conduct
its businesses as presently conducted except where the failure to
be qualified would not have a material adverse effect. Tenant has
the partnership power and authority to own, lease or operate all
properties and assets now owned, leased or operated by it and to
carry on its businesses as now conducted. Tenant, upon request,
will provide copies of its Partnership Agreement to
Landlord.
(B) Tenant may execute, deliver and
perform this Lease without the necessity of Tenant obtaining any
consents, approval, authorization or waiver or giving any notice or
otherwise, except for the authorization of the Board of Directors
of Tenant referenced in paragraph (D) below and such consents,
approvals, authorizations, waivers and notices which have been
obtained and are unconditional and are in full force and effect and
such notices which have been given.
(C) The execution, delivery and
performance of this Lease do not and will not (1) constitute a
violation of the Partnership Certificate or Partnership Agreement
of Tenant; (2) constitute a violation of any statute,
judgment, order, decree or regulation or rule of any governmental
body applicable or relating to Tenant; or (3) constitute a
default under any contract to which Tenant is a party.
(D) This Lease has been duly
authorized by the Board of Directors of Tenant and constitutes the
legal, valid and binding obligation of Tenant, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
reorganization, insolvency and similar laws of general application
relating to or affecting the enforcement of rights of creditors and
subject to general principles of equity.
ARTICLE 9
SUBORDINATION, ATTORNMENT AND
NON-DISTURBANCE
AGREEMENT, ESTOPPEL
LETTERS
SECTION 9.01: SUBORDINATION.
This Lease, and the lien thereof,
shall not be subordinated to the lien of any ground lease or
mortgage or deed of trust (irrespective of the execution or
recordation date thereof), placed upon the Premises and/or
Equipment unless the Tenant shall first execute a Subordination,
Attornment and Non-Disturbance Agreement in form acceptable to
Tenant, acting reasonably.
SECTION 9.02: ATTORNMENT.
In the event of (i) a transfer
of Landlord’s interest in the Premises and/or Equipment or
(ii) any proceeding brought for the termination or foreclosure
of, or the exercise of the power of sale under any mortgage or deed
of trust affecting the Premises and/or Equipment or any ground or
underlying lease made by Landlord, then and in any of such
events,
Tenant shall attorn to and recognize the
purchaser or the transferee of Landlord’s interest as
Landlord under this Lease for the balance then remaining of the
Lease, providing said purchaser or transferee shall agree to accept
such attornment and to undertake and be bound by all of the terms
and conditions of this Lease and such purchaser or transferee first
shall execute a Subordination, Attornment and Non-Disturbance
Agreement in form acceptable to Tenant, acting reasonably. In the
event of any such transfer, Landlord shall be released from all
liability under this Lease accruing after the date
thereof.
SECTION 9.03: ESTOPPEL LETTER.
Tenant and Landlord each agree that,
within thirty (30) days after written request to provide to
the other, or its mortgagee, beneficiary or purchaser, an estoppel
letter certifying to the best of its knowledge whether this Lease
is in full force and effect, that this Lease has not been amended
or modified except as noted in the letter, the amount of annual
rent paid and the date to which rents have been paid.
SECTION 9.04: COOPERATION.
Tenant agrees to cooperate with
Landlord should Landlord desire to refinance the Leased Premises;
provided however that such refinancing does not materially impact
Tenant’s leasehold estate, and Tenant is assured of continued
rights to the Leased Premises under the terms of this
Lease.
ARTICLE 10
FORCE MAJEURE
If Landlord or Tenant shall, as a
result of any force majeure, fail to timely perform any obligation
to be performed under this Lease (excluding the payment of rent or
any other sum due under this Lease), then such failure shall be
excused and shall not be deemed to be a breach of this Lease by the
party in question, and the time allotted said party to so perform
its obligation shall be extended by a period equal to the time such
delay continues. The affected party’s performance shall be
diligently commenced and carried to completion when the force
majeure ends. As used herein, force majeure shall mean complete
inability to obtain labor or materials (or reasonable substitutes
therefor), acts of God (other than those covered by insurance),
enemy or hostile governmental action, civil commotion, or other
similar causes, which continue unabated for a period in excess of
sixty (60) days.
ARTICLE 11
ALTERATIONS BY TENANT —
MECHANICS’ LIENS
SECTION 11.01: ALTERATIONS.
After the Commencement Date, Tenant
shall have the right to make any and all alterations,
modifications, improvements and additions (collectively, “
alterations ”) to the finished Premises, as
Tenant desires, subject to the prior written approval of Landlord,
which approval shall not be unreasonably withheld or
delayed.
SECTION 11.02: LANDLORD’S
ALTERATIONS. Except as
may be required by law, Landlord agrees that it will make no
changes, alterations or additions to the Premises, including the
Improvements thereon, nor take any action which reduces the parking
areas or which alters in any way the access to such parking areas
or to the Premises from that which exists as of the Commencement
Date, without the prior written consent of Tenant, which consent
shall not be unreasonably withheld.
SECTION 11.03: MECHANIC’S
LIENS. Tenant will pay or
cause to be paid all charges for all of its alterations (if any)
and for all other work done by Tenant on or about the Premises
during the Term of this Lease and will not suffer or permit any
mechanic’s, materialmen’s, or similar liens for labor
and materials furnished to the Premises during the Term of this
Lease by or on the account of Tenant. If any such lien shall be
filed, Tenant will either pay the same or procure the discharge
thereof by giving security or in such other manner as may be
required or permitted by applicable law within thirty
(30) days of the filing thereof. Notwithstanding the
foregoing, Tenant shall have the right, at its sole cost and
expense, in its name or in the name of the Landlord, or both, to
contest any such lien, provided the Tenant shall provide a bond or
other security sufficient to protect Landlord’s interest in
the Premises and complies with any requirements of Landlord’s
Lender with respect to the contest and/or removal of
mechanic’s liens.
ARTICLE 12
MAINTENANCE AND REPAIR
OBLIGATIONS
It is the intent of the parties
hereto that after the Commencement Date, this Lease, except as
otherwise expressly stated in this Lease, be, is and shall be
construed as a “net lease” and under no circumstances
or conditions, whether now or hereafter existing, or whether within
or beyond the present contemplation of the parties, shall Landlord
be expected or required to make any payment of any kind whatsoever
or be under any obligation or liability hereunder except as
otherwise expressly set forth and Tenant agrees that Tenant shall
pay all costs, charges and expenses of every kind and nature
whatsoever against or in connection with the Premises and the
Equipment which arise or become due during the Term of this Lease,
and which, except for this Lease would have been payable by
Landlord, excluding, however, additionally, any income taxes of
Landlord or any amounts payable under any loans secured by
Landlord’s interest in the Premises. Tenant agrees that
during the Term of this Lease, Tenant will keep and maintain in
good order, condition and repair the Premises and every part
thereof, including, without limitation, structural repairs, repairs
in the nature of capital or long-term improvements and repairs or
alterations necessary to comply with all federal, state and local
laws, all in order to keep the Premises and every part thereof in
substantially the same condition as at the commencement of this
Lease, but in all cases excluding ordinary wear and tear and damage
by fire, the elements, casualty (but only to the extent covered by
insurance) or condemnation, including, without limitation, the
roof, the exterior and interior portions of the Premises, all
common areas, parking areas, landscaping, fixtures
